NEUTRAL LAW AND EUROCENTRIC
LAWMAKING: A POSTCOLONIAL
ANALYSIS OF THE U.N. CONVENTION ON
THE RIGHTS OF THE CHILD
Maria Grahn-Farley*
INTRODUCTION
The development of international law is entwined with the colonial
project. The colonial and postcolonial connection is evident in several
international legal concepts.1 Sovereignty,2 international trade,3 and hu* Associate Professor of Law, Albany Law School. My interest in the U.N. Convention on the Rights of the Child comes from having been a child rights activist for
many years and a National Board Member of Rädda Barnen (Save the Children Sweden),
the world’s largest child rights nongovernmental organization and the lead agency of the
Convention. I would like to thank James Thuo Gathii, Makau Mutua, Donna Young,
Peter Halewood, Nancy Ota, Katheryn Katz, and Athena Mutua for their valuable comments and support. I would also like to thank Ajantha Subramanian, Vince Brown, Daria
Roithmayr, and Zanita Fenton for having read and commented on earlier versions of this
Article. Thanks to Max Shterngel and Laura Scully for excellent editing. This Article has
benefited from presentations at Albany Law School and Harvard Law School. I am
thankful to Robert Blitt for the invitation to present this Article at the Conference of the
Association of American Law Schools, Section on Human Rights, “New Voices in International Human Rights” in January 2009, in San Diego. Finally, I would like to thank my
husband, Anthony P. Farley, for sharing the time.
1. See, e.g., MALCOLM N. SHAW, INTERNATIONAL LAW 26–27 (5th ed. 2003); Antony
Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century
International Law, 40 HARV. INT’L. L.J. 1 (1999); Antony Anghie & B.S. Chimni, Third
World Approaches to International Law and Individual Responsibility in Internal Conflict, 36 STUD. TRANSNAT’L LEGAL POL’Y 185, 192–93 (2004); James Thuo Gathii, Alternative and Critical: The Contribution of Research and Scholarship on Developing Countries to International Legal Theory, 41 HARV. INT’L L.J. 263, 265–66 (2000); Arnulf
Becker Lorca, International Law in Latin America or Latin American International
Law?: Rise, Fall, and Retrieval of a Tradition of Legal Thinking and Political Imagination, 47 HARV. INT’L. L.J. 283 (2006); James Thuo Gathii, International Law and Eurocentricity, 9 EUR. J. INT’L L. 184, 185–86 (1998) (book review) [hereinafter Gathii, Eurocentricity]. Even those authors who take a less critical position towards international law
and human rights, regarding both as important tools for women’s and children’s rights
activists, do not disagree with the view that international law and human rights are Eurocentric. See, e.g., Savitri W.E. Goonsekere, Human Rights: A Eurocentric Ethic or a
Legal Foundation for Freedom, Justice and Peace?, 7 SRI LANKA J. INT’L L. 81 (1995).
2. See ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW 182–90 (2005).
3. See James Thuo Gathii, Imperialism, Colonialism, and International Law, 54
BUFF. L. REV. 1013, 1031–33 (2007).
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man rights are areas where colonial and postcolonial laws are interlinked.4 The deep structure of international law is still colonial even
where the ties between colonial and postcolonial laws are no longer visible. The colonial structure is a European sense of entitlement to international law as essentially European.5 This underlying structure reveals
itself where Europe guards the boundaries of international law against
the dissents of postcolonial States.6 I have come to this conclusion by
making an in-depth case study of the lawmaking process of the U.N.
Convention on the Rights of the Child (“CRC” or “Convention”).7 The
CRC is the most ratified human rights treaty in the world. In fact, there
are more parties to the CRC than Member States in the United Nations.8
4. See MAKAU MUTUA, HUMAN RIGHTS: A POLITICAL AND CULTURAL CRITIQUE (2002);
Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 HARV.
INT’L L.J. 201, 204–05 (2001).
5. The argument of this Article builds on the scholarship of Third World approaches
to international law (commonly abbreviated “TWAIL”), which often assert that international law is inherently colonial in both form and substance. See, e.g., ANGHIE, supra note
2, at 195. With this Article, I hope to add that, in addition to the more visible links between colonial and postcolonial international law, there is a link between European colonial sentiments and postcolonial European sentiments—a commitment to international
law as fundamentally European.
6. The term “postcolonial States,” as used in this Article, refers to mostly nonWestern States, many of which were former European colonies. In this Article, I do not
refer to “postcolonial” as a school of theoretical thought as the term is used by Bhabha or
Spivak, among others, in subaltern studies. See generally HOMI K. BHABHA, THE
LOCATION OF CULTURE (2004); Gayatri Chakravorty Spivak, Can the Subaltern Speak?,
in MARXISM AND THE INTERPRETATION OF CULTURE (Cary Nelson & Lawrence Grossberg
eds., 1988).
7. Convention on the Rights of the Child, Nov. 20, 1989, 144 U.N.T.S. 123 [hereinafter CRC]. The CRC is the first attempt to legislate what previously were moral incitements codified only in declarations, that is, without legally binding effect. Compare
id., with Declaration of the Rights of the Child, G.A. Res. 1386, U.N. GAOR, 14th Sess.,
Supp. No. 16, U.N. Doc. A/4354 (Nov. 20, 1959), and Declaration of the Rights of the
Child, League of Nations, O.J. Spec. Supp. No. 23 (1924).
8. The United Nations has 192 Member States, while the CRC has 193 States parties. See Office of the U.N. High Commissioner for Human Rights, Ratifications, Declarations, Reservations, Objections, and Notes to the Convention on the Rights of the
Child, http://www2.ohchr.org/english/bodies/ratification/11.htm [hereinafter CRC Ratifications, Reservations, and Objections] (last visited Oct. 29, 2008). See also Convention
on the Rights of the Child: Reservations and Declarations Made Upon Signature, 1577
U.N.T.S. 168, 168–77 (listing the reservations and declarations, with official translations,
of sixteen original States parties upon signing the CRC); List of U.N. Member States,
http://www.un.org/members/list.shtml (last visited Oct. 29, 2008). The Holy See is a
party to the CRC, but not a Member of the United Nations. CRC Ratifications, Reservations, and Objections, supra; List of U.N. Member States, supra.
2008]
POSTCOLONIAL ANALYSIS OF THE CRC
3
Every country is a party to this treaty except the United States of America9 and Somalia.10
A detailed examination of States parties’ objections to other States parties’ reservations uncovers a colonial dynamic.11 The colonial legacy of
international law is not simply a matter of inclusion or exclusion. Nor is
it only a matter of neutrality or non-neutrality. Even though the CRC was
drafted, adopted, and ratified with the possibility of the inclusion and
involvement of almost every country in the world, the colonial structure
is still present, not in the substantive legal outcome, but in the legislative
process itself.12
The CRC appears to be neutral: participation in the drafting process
was almost universal, and dissent, in the form of parties’ reservations
against specific provisions, was spread more or less evenly among regions.13 Despite all this, the colonial past is carried through in the stage
of objections. International law reveals its colonial structure in the law9. The United States was active in the drafting of the CRC, but did not ratify the
final text. See, e.g., U.N. Office of the High Comm’r for Human Rights, Legislative History of the Convention on the Rights of the Child, vol. I, at 320, U.N. Doc.
ST/HR/PUB/07/1 (2007), available at http://www.ohchr.org/Documents/Publications/Legis
lativeHistorycrc1en.pdf [hereinafter Legislative History I] (referencing the U.S. proposed
reformulation of Article 4); CRC Ratifications, Reservations, and Objections, supra note
8 (not listing the United States among those countries that have ratified the CRC).
10. See CRC Ratifications, Reservations, and Objections, supra note 8. With 185
States parties, the Convention on the Elimination of All Forms of Discrimination against
Women (“CEDAW”) is also a widely ratified human rights treaty and is similar in spirit
to the CRC. See Convention on the Elimination of All Forms of Discrimination Against
Women, Dec. 18, 1979, 1249 U.N.T.S. 513 [hereinafter CEDAW]; Office of the U.N.
High Commissioner for Human Rights, Ratifications, Declarations, Reservations, Objections, and Notes to the Convention on the Elimination of All Forms of Discrimination
Against Women, http://www2.ohchr.org/english/bodies/ratification/8.htm [hereinafter
CEDAW Ratifications, Reservations, and Objections] (last visited Oct. 30, 2008).
However, the CEDAW was adopted in 1979, before the last wave of decolonization and
during the height of the Cold War; therefore, unlike the CRC, the CEDAW is neither a
postcolonial nor a post-Cold War treaty under the strict meanings of these terms.
11. See CRC Ratifications, Reservations, and Objections, supra note 8. The reservations and objections at the signing and ratification of the CEDAW followed a similar
pattern as the CRC. See CEDAW Ratifications, Reservations, and Objections, supra note
10.
12. Evidence of a persistent colonial dynamic is apparent in the geographic patterns
of reservations and objections. Whereas reservations are quite evenly distributed among
regions—Europe, twenty-six; Asia, nineteen, the Middle East, ten; Africa, ten; the Americas, seven; and the Caribbean, two—the objections to reservations are clearly lopsided:
all twelve parties making objections are European, and of the twenty-three parties whose
reservations received objections, only two are European. See CRC Ratifications, Reservations, and Objections, supra note 8.
13. See supra note 12 and accompanying text.
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making process at the moment objections are made against reservations.14
Theories based solely on exclusion and non-neutrality cannot explain
the colonial structure of postcolonial and post-Cold War international
law.15 Exclusion and non-neutrality are no longer as obvious as they
were during formal colonialism. The CRC, for example, is a model of
inclusion and neutrality, and the presence of a colonial structure is difficult to demonstrate through theories that focus on the substantive results
of exclusion and non-neutrality.16 This Article adds a new argument to
the postcolonial critique of international law: that international law is
colonial within the legal method itself. Even when both the substance of
the law and the procedural rules can be seen as neutral, a deep colonial
structure remains.17
14. See supra note 12 and accompanying text.
15. K.J. Keith mentions the principle of “sovereign equality” as an example of a
“neutral” principle of international law that also finds support in the legal tradition of the
postcolonial State. See K.J. Keith, Asian Attitudes to International Law, AUSTL. Y.B.
INT’L L. 1, 4 (1967).
16. There is an abundant supply of publications and articles addressing the substance
of the CRC. The United Nations Children’s Fund and Save the Children are major publishers in this area. However, what is generally lacking is a thorough legal analysis of the
CRC and, particularly, a postcolonial analysis. For a critical analysis of child rights, see
Maria Grahn-Farley, A Theory of Child Rights, 57 U. MIAMI L. REV 867 (2003). Sonia
Harris-Short has offered a postcolonial analysis of the use of the “cultural distinctiveness” claim in the reporting to the U.N. Committee, concluding that this claim was seldom a justification for the noncompliance of States parties that appeared before the
Committee. Sonia Harris-Short, International Human Rights Law: Imperialist, Inept and
Ineffective?: Cultural Relativism and the U.N. Convention on the Rights of the Child, 25
HUM. RTS. Q. 130, 163–64 (2003). Thoko Kaime has undertaken a cultural analysis of
both African cultural practices and the cultural values that the CRC represents, contending that once the legitimacy of common values is established, the CRC can be used to
challenge certain African cultural practices harmful to children, such as female genital
mutilation. Thoko Kaime, The Convention on the Rights of the Child and the Cultural
Legitimacy of Children’s Rights in Africa: Some Reflections, 5 AFR. HUM. RTS. L.J. 221,
233–34 (2005). Several scholars have examined the implementation of the CRC in developing countries, and there have been a few postcolonial analyses of specific provisions in
the CRC. See, e.g., id. at 231–33 (analyzing Articles 6 and 3 of the CRC); Bart Rwezaura, Competing “Images” of Childhood in the Social and Legal Systems of Contemporary
Sub-Saharan Africa, 12 INT’L. J.L. POL. & FAM. 253, 265–66 (1998) (highlighting legal
developments in Ghana, Kenya, Tanzania, and Uganda towards implementing the CRC).
Nonetheless, there has been no comprehensive postcolonial legal analysis of the legislative process of the CRC.
17. R.P. Anand describes this “belatedness” of the postcolonial State as follows:
[I]t is not surprising to find Asian-African countries protesting against some of
the old treaties and several so-called ‘established principles of international
2008]
POSTCOLONIAL ANALYSIS OF THE CRC
5
Part I of this Article provides an overview of the CRC, its guiding
principles, and its unique status as both a postcolonial and post-Cold War
treaty.18 Examining the reservations made by States parties upon signing
and ratifying the CRC, Part II suggests that it is possible for international
law not to be colonial. As dissent from the CRC’s values is evenly distributed across issues and across the world, the Convention can be considered neutral law. Part III analyzes the objections offered in response to
the reservations and notes a significant trend: only European States made
such objections and all but two of these objections were directed against
the reservations of postcolonial States.19 This Article concludes from this
case study that international law continues to link colonialism and postcolonialism, and that this connection is reflected in Europe’s investment
in international law as a Western construct and in its continuing disregard for postcolonial challenges.
I. THE U.N. CONVENTION ON THE RIGHTS OF THE CHILD
A. The CRC and Its Guiding Principles
The CRC was adopted unanimously by the U.N. General Assembly on
November 20, 1989,20 and entered into force in September 1990, pursuant to Article 49.21 The U.N. Committee on the Rights of the Child
(“U.N. Committee”), the monitoring body of the CRC as provided in
Article 43,22 consists of eighteen members23 elected by the States parties
law.’ Finding several treaties signed during the colonial period, when they had
no choice . . . they challenge them and demand their modification. . . . The
newly independent States also rebelled against some of the economic and political rights acquired by their former colonial masters . . . which they have felt
and still feel are unreasonable and, although accepted by the present international legal order, inequitable.
R.P. Anand, Asian-African States and International Law, 15 INT’L & COMP. L.Q. 55,
63–65 (1966).
18. The CEDAW, while similar to the CRC in spirit and universality, is not properly
a “postcolonial” or post-Cold War human rights treaty because it was adopted in 1979.
See supra note 10 and accompanying text.
19. See CRC Ratifications, Reservations, and Objections, supra note 8.
20. CRC, supra note 7.
21. Id. art. 49(1) (“The present Convention shall enter into force on the thirtieth day
following the date of deposit with the Secretary-General of the United Nations of the
twentieth instrument of ratification or accession.”).
22. Id. art. 43(1) (“For the purpose of examining the progress made by States Parties
in achieving the realization of the obligations undertaken in the present Convention, there
shall be established a Committee on the Rights of the Child . . . .”).
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based on their expertise in child rights.24 The Convention covers every
person under the age of eighteen.25 To avoid a controversial debate over
abortion, the CRC is silent on when life, and therefore childhood, begin.26
There are four guiding principles of the CRC.27 The first principle, articulated in Article 2, is the right not to be discriminated against.28 In addition to the traditional minority protections of race, ethnicity, religion,
and class, the CRC includes “legal status” as a protected category.29
Thus, the Convention does not allow for distinctions between legal and
illegal residents within a country.30 Providing that a State party shall not
23. As of October 30, 2008, the current members of the U.N. Committee are Alya
Ahmed Bin Saif Al-Thani (Qatar); Agnes Akosua Aidoo, Vice-Chair (Ghana); Joyce
Aluoch (Kenya); Luigi Citarella (Italy); Kamel Filali, Vice-Chair (Algeria); Maria Herczog (Hungary); Moushira Khattab (Egypt); Hatem Kotrane (Tunisia); Lothar Friedrich
Krappmann, Rapporteur (Germany); Yanghee Lee, Chairperson (Republic of Korea);
Rosa María Ortiz, Vice-Chair (Paraguay); David Brent Parfitt (Canada); Awich Pollar
(Uganda); Dainius Puras (Lithuania); Kamal Siddiqui (Bangladesh); Lucy Smith (Norway); Nevena Vuckovic-Sahovic (Serbia); and Jean Zermatten, Vice-Chair (Switzerland).
Office of the U.N. High Commissioner for Human Rights, Committee on the Rights of
the Child: Members, http://www2.ohchr.org/english/bodies/crc/members.htm (last visited
Oct. 30, 2008).
24. See CRC, supra note 7, art. 43(2) (“The Committee shall consist of ten experts of
high moral standing and recognized competence in the field covered by this Convention.”).
25. See id. art. 1.
26. The CRC provides that childhood ends on the eighteenth birthday. See id. Morocco suggested the compromise between the pro-choice and pro-life factions, urging deletion of the original wording “from the moment of his birth.” U.N. Econ. & Soc. Council
[ECOSOC], Comm’n on Human Rights, Report of the Working Group to Consider the
Question of a Convention on the Rights of a Child: Considerations, ¶¶ 28–30, U.N. Doc.
E/CN.4/L.1542 (Mar. 10, 1980) [hereinafter ECOSOC, 1980 Report of the Working
Group], as reprinted in SHARON DETRICK, THE UNITED NATIONS CONVENTION ON THE
RIGHTS OF THE CHILD: A GUIDE TO THE “TRAVAUX PRÉPARATOIRES” 115 (1992).
27. See U.N. Committee on the Rights of the Child, General Comment No. 3: General Measures of Implementation for the Convention on the Rights of the Child, ¶¶ 6–12,
U.N. Doc. CRC/GC/2003/3 (Mar. 17, 2003) (describing the “four general principles” of
the Convention).
28. CRC, supra note 7, art. 2.
29. Id.
30. Norway initiated the inclusion of nonlegal residents for protection under the CRC.
See ECOSOC, Comm’n on Human Rights, Report of the Working Group to Consider the
Question of a Convention on the Rights of a Child: Considerations, U.N. Doc.
E/CN.4/WG.1/WP.10 (1981) [hereinafter ECOSOC, 1981 Report of the Working Group],
as reprinted in Legislative History I, supra note 9, at 320 (indicating Norway’s proposal
to the 1981 Working Group to have each State party apply the Convention “irrespective
of the legality of their parents’ stay”). The United States, which is not a State party to the
CRC, was nevertheless an active participant in the drafting of the CRC and initially insisted on excluding illegal immigrant children. See Legislative History I, supra note 9
2008]
POSTCOLONIAL ANALYSIS OF THE CRC
7
only “respect,” but also “ensure” the right to nondiscrimination,31 Article
2 secures a positive right. To “ensure” a right, a State party must take
active steps against discrimination. For example, there is an argument for
States parties to actively disseminate the Convention’s principles through
affirmative action following the interpretation of the nondiscrimination
provision of the International Covenant on Civil and Political Rights
(“ICCPR”).32
“The best interest of the child” constitutes the second guiding principle. Article 3 of the CRC states that a government shall in all matters
concerning the child consider his or her best interest,33 an obligation that
has been interpreted expansively in international child rights.34 In its
official national budget, the Swedish government, for instance, provides
for a child-impact analysis and lists the budget’s consequences for children.35
The third guiding principle, delineated in Article 12 of the CRC, is the
child’s right to be heard in all matters regarding the child.36 Through the
right to be heard, the CRC establishes the child as a legal subject, a bearer rather than an object of rights.
Finally, set forth in Article 6 of the CRC, the child’s right to life is the
fourth guiding principle.37 However, this right is not a negative right as
(indicating the U.S. proposal to the 1981 Working Group to have each State party apply
the Convention “to all children lawfully in its territory”) (emphasis added).
31. CRC, supra note 7, art. 2.
32. See ECOSOC, Comm’n on Human Rights, General Comment 18, ¶ 10, U.N. Doc.
HRI/GEN/1/Rev. 1 (1989), as reprinted in RACHEL HODGKIN & PETER NEWELL, IMPLEMENTATION HANDBOOK FOR THE CONVENTION ON THE RIGHTS OF THE CHILD 22 (4th ed.
2002) (“The principle of equality sometimes requires States Parties ‘to take affirmative
action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the’ [ICCPR].”); U.N. Committee on the Rights of the Child,
General Guidelines Regarding the Form and Content of Initial Reports to be Submitted
by States Parties Under Article 44, Paragraph 1(a), of the Convention, ¶ 10, U.N. Doc.
CRC/C/5 (Oct. 30, 1991) (“States parties are requested to describe the measures that have
been taken or are foreseen, pursuant to article 42 of the Convention, to make the principles and provisions of the Convention widely known, by appropriate and active means,
to adults and children alike.”).
33. CRC, supra note 7, art. 3.
34. The Swedish Initial Report to the U.N. Committee interprets the “best interest”
provision to include children as a group as well, for example, when budgetary decisions
are being made. See U.N. Committee on the Rights of the Child, Initial Reports of States
Parties Due in 1992: Sweden, ¶¶ 50–52, U.N. Doc. CRC/C/3/Add.1 (Sept. 23, 1992).
35. See id. ¶ 14.
36. CRC, supra note 7, art. 12.
37. Id. art. 6.
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in the ICCPR, which proscribes a party from taking a person’s life.38 The
right to life in the CRC is positive, as the right to survival is one of the
preconditions of the right to life, and it encompasses, inter alia, the rights
to education, healthcare, and an adequate living. Furthermore, the CRC
prohibits subjecting the child to capital punishment or a life sentence
without the possibility of parole.39 According to Article 4, a State party
shall use the “maximum extent of available resources” towards implementing the CRC.40 If a country is poor, it is to seek assistance within the
framework of international cooperation in order to fulfill its commitments under the Convention.41
B. The CRC as Both a Postcolonial and Post-Cold War Treaty
The postcolonial critique that international law is inherently colonial
and a representation of European values42 will be examined in this Section. One version of this critique focuses on the fact that a minority of
States created the laws that bind the majority of today’s States.43 When
the United Nations was founded in 1945, there were fifty-one Member
States; today there are 192 Member States.44 Obviously, the majority of
today’s States were not represented in 1648, the other founding moment
in mainstream international law.45 This is not the case with the CRC,
38. See International Covenant on Civil and Political Rights art. 6(1), Dec. 16, 1966,
999 U.N.T.S. 171 [hereinafter ICCPR].
39. CRC, supra note 7, art. 37(a).
40. Id. art. 4.
41. For example, the comments of Brazil, Colombia, and Norway stress the importance of international solidarity between developed and developing countries. See
ECOSOC, 1980 Report of the Working Group, supra note 26, ¶ 60, as reprinted in Legislative History I, supra note 9, at 351 (Brazil’s proposal invoking “the framework of international cooperation”); ECOSOC, Comm. on Human Rights, Colombia, Question of a
Convention on the Rights of the Child, ¶ 10, U.N. Doc. E/CN.4/1324/Add.2 (Feb. 14,
1979); Legislative History I, supra note 9 at 350 (citing Norway’s proposal at the 1981
Working Group).
42. See, e.g., Gathii, Eurocentricity, supra note 1, at 185–86; Goonesekere, supra
note 1; Kenneth B. Nunn, Law as a Eurocentric Enterprise, 15 LAW & INEQ. 323 (1997).
43. The notion that international law is universal is a relatively new idea that came
about with the establishment of the United Nations. Before the creation of the United
Nations, international law was the law of European and Christian nations. See R.P.
Anand, Family of “Civilized” States and Japan: A Story of Humiliation, Assimilation,
Defiance and Confrontation, 5 J. HIST. INT’L L. 1, 20 (2003). Non-European nations had
to “qualify” for international law by proving they were sufficiently “Western.” See id. at
22.
44. See List of U.N. Member States, supra note 8.
45. Mainstream international legal theorists recognize 1648 and 1945 as dates marking the origins of international law. Often, a distinction is drawn between the origin of
2008]
POSTCOLONIAL ANALYSIS OF THE CRC
9
however. With 193 States parties,46 the CRC has a near-unanimous representation. Scholars like Anghie have connected the origin of international law to the colonial project.47 The last major wave of decolonization resulted in the independence of Zimbabwe (1980),48 Antigua and
Barbuda (1981),49 Belize (1981),50 and Brunei (1984).51 In short, the
CRC is a postcolonial treaty because the formal period of colonialism
had, on the whole,52 come to an end by 1989, the vast majority of States
parties having attained independence by the time of the CRC’s adoption.53
The cultural values argument also criticizes international law as Eurocentric.54 Specifically, this argument asserts that the values of the International Bill of Rights55 are rooted in Western liberal ideology56 and that
this body of law places a priority on civil and political rights over social,
international law in 1648 and the origin of modern international law in 1945. See ANGIE,
supra note 2, 182–90; SHAW, supra note 1, at 25, 30–31.
46. CRC Ratifications, Reservations, and Objections, supra note 8.
47. See, e.g., ANGHIE, supra note 2, 182–90.
48. U.S. Dept. of State, Background Note: Zimbabwe, Oct. 2008, http://www.state.
gov/r/pa/ei/bgn/5479.htm.
49. U.S. Dept. of State, Background Note: Antigua and Barbuda, July 2008, http://www.
state.gov/r/pa/ei/bgn/2336.htm.
50. U.S. Dept. of State, Background Note: Belize, Oct. 2008, http://www.state.gov/r
/pa/ei/bgn/1955.htm.
51. U.S. Dept. of State, Background Note: Brunei, May 2008, http://www.state.gov/r/
pa/ei/bgn/2700.htm.
52. There remain nearly seventy non-self-governing territories classified as “dependencies and areas of special sovereignty.” See U.S. Dept. of State, Dependencies and
Areas of Special Sovereignty, Dec. 18, 2007, http://www.state.gov/s/inr/rls/10543.htm.
53. See CRC Ratifications, Reservations, and Objections, supra note 8 (indicating
that the CRC was opened for signature on Nov. 20, 1989).
54. Karen Engle writes about the shift in discourse among postcolonial States in the
1990s from a strict cultural approach that sought to assimilate human rights to a deep
suspicion that human rights law reinforces a neoliberal political agenda. See Karen Engle,
Culture and Human Rights: The Asian Values Debate in Context, 32 N.Y.U. J. INT’L L. &
POL’Y 291, 291–92 (2000).
55. The Universal Declaration of Human Rights of 1948 (“Universal Declaration”)
together with the ICCPR and the International Covenant on Economic, Social and Cultural Rights of 1966 (“ICESCR”) constitute what is often referred to as the International
Bill of Rights. See ICCPR, supra note 38; International Covenant on Economic, Social
and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR]; Universal
Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg.,
U.N. Doc. A/810 (Dec. 12, 1948).
56. See Makau wa Mutua, The Ideology of Human Rights, 36 VA. J. INT’L L. 589,
605–06 (1996).
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economic, and cultural rights.57 The U.N. Committee insists on a holistic
view of the CRC and on the interdependency of all the rights in the Convention.58 This approach mediates colonial tensions by emphasizing the
interconnectedness of different generations of human rights, including
the right to one’s culture. Article 4 of the CRC acknowledges the economic disparities between the Global North and the Global South, requiring wealthy countries to provide resources to help poorer countries
comply with the CRC.59
A persistent point of contention during the Cold War was which set of
rights should take primacy. Whereas the Marxist-Leninist Eastern Block
argued that collective socio-economic and cultural rights are a precondition for the fulfillment of individual civil and political rights,60 the countries of the West maintained that the former are grounded in the latter.61
At the adoption of the Universal Declaration, for example, communist
Yugoslavia’s U.N. representative articulated the Eastern Block’s position, expressing concerns that the Universal Declaration only focuses on
the individual, not on the need for a social structure and community
within which the individual could enjoy individual rights.62 Representatives of many African countries, which recognize collective rights in
their regional human rights treaty,63 have also levied similar criticisms.
The CRC is a post-Cold War treaty. The U.N. General Assembly
adopted the CRC just a few weeks after the fall of the Berlin Wall on
November 9, 1989,64 and this historic event figured prominently in the
57. See U.N. GAOR, 3d Sess., 183d plen. mtg., U.N. Doc. A/PV. 183 (Dec. 10, 1948)
[hereinafter 183d Plenary Meeting].
58. “Enjoyment of economic, social and cultural rights is inextricably intertwined
with enjoyment of civil and political rights.” U.N. Committee on the Rights of the Child,
General Comment No. 5: General Measures of Implementation for the Convention on the
Rights of the Child, ¶ 6, U.N. Doc. CRC/GC/2003/5 (Nov. 27, 2003).
59. See CRC, supra note 7, art. 4 (“States Parties shall undertake such measures to
the maximum extent of their available resources and, where needed, within the framework of international co-operation.”) (emphasis added).
60. See, e.g., G.I. TUNKIN, THEORY OF INTERNATIONAL LAW 80 (William E. Butler
trans., Wildy, Simmonds & Hill 2003) (1974).
61. See Alexandra Chistyakova, The Russian Bill of Rights: Implications, 24 COLUM.
HUM. RTS. L. REV. 369, 376–77 (1993).
62. See 183d Plenary Meeting, supra note 57.
63. African [Banjul] Charter on Human and Peoples’ Rights, June 27, 1981, arts. 16–24,
OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (recognizing both the rights of “all
peoples” and the rights of “individual[s]”).
64. See BBC: On This Day,1989: Berliners Celebrate the Fall of the Wall, http://news.
bbc.co.uk/onthisday/hi/dates/stories/november/9/newsid_2515000/2515869.stm (last visited
Sept. 28, 2008); CRC Ratifications, Reservations, and Objections, supra note 8.
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POSTCOLONIAL ANALYSIS OF THE CRC
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completion of the drafting of the CRC. The travaux préparatoires65 reveal that a virtual deadlock took place from the time Poland submitted its
“draft resolution” in 197866 all the way to 1988. The end of the Cold War
had been anticipated for about a year before the CRC drafting process
was completed. During this period, most of the disputed issues between
the two Blocks were resolved. The most salient breakthrough was the
agreement to adopt an interdependent view of civil and political rights,
and social-economic and cultural rights.67 And, in brief—as will become
clear when I analyze the reservations to the CRC in Part II—the schism
between East and West so often reflected in reservations or abstentions is
nowhere to be found.68
II. DISSENT EXPRESSED IN RESERVATIONS
While it is possible to point to provisions in the CRC that are vulnerable to a postcolonial critique, there are ample examples in the drafting
process of efforts to be as inclusive as possible towards the postcolonial
States, for instance, through the Working Group to the Commission on
Human Rights (“Working Group”).69 Compared to the Universal Declaration, the ICCPR, and the ICESCR, which were adopted when most
contemporary postcolonial States were still under colonial rule, it is more
difficult to make a clear argument that the values of the CRC exclude
postcolonial States’ values. However, this is not to say that postcolonial
States did not raise objections to certain CRC provisions. One key indicator of such dissent is States parties’ reservations made at the signing
and ratification of the CRC.
The CRC has a two-step process for States to become parties to the
Convention: Article 46 opens up the CRC “for signature by all States,”
and Article 47 notes that the CRC “is subject to ratification.”70 Signing
65. See generally DETRICK, supra note 26.
66. See Question of a Convention of the Rights of a Child: Poland, Draft Resolution,
U.N. Doc. E/CN.4/L.1366 (Feb. 7, 1978), reprinted in Legislative History I, supra note 9,
at 32–35.
67. See DETRICK supra note 26, at 27.
68. The split over the two covenants—the ICCPR and the ICESCR—is an example of
how the Cold War divide was reflected in General Assembly voting: the Eastern Block
abstained from voting for the ICCPR, and the Western nations abstained from voting for
the ICESCR.
69. See DETRICK supra note 26, at 21–22 (“The ‘open-ended’ nature of the Working
Group meant that any of the forty-three states represented on the [U.N. Commission on
Human Rights] could participate. All other Member States of the United Nations could
send ‘observers’ (with the right to take the floor), as could intergovernmental organizations.”).
70. CRC, supra note 7, arts. 46–47.
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indicates the intention of a State to become a party to the treaty, and ratification indicates that a State has become a party to the treaty. A State
party can express its dissent from a treaty provision by making declarations and reservations in connection with the signing and/or ratification
of the treaty.71 Regardless of whether state representatives refer to their
unilateral statement as a “reservation” or as a “declaration,” treaty law
provides that any unilateral statement functions as a reservation when the
statement has an effect on how the State party would be bound by the
treaty.72 And when a State makes a reservation against a treaty provision,
the specific treaty provision binds neither the particular State that made
the reservation, nor any other State in relation to this State.73
However, a reservation does not undo the binding effect of the provision
in relation to other States.74 In short, a reservation is a unilateral expression of a State party’s dissenting position regarding a particular provision
in a treaty. States parties need not ask the organizational body for permission or obtain an agreement with other States to make the reservation,
except where specifically required to do so by a given treaty.75 The position the International Court of Justice took in the Reservations case—that
is, if the reservation is incompatible with the object and purpose of the
treaty, the State making the reservation is not considered a party to the
71. The Vienna Convention on the Law of Treaties (“Vienna Convention”) defines
“reservation” as “a unilateral statement, however phrased or named, made by a State,
when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports
to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” Vienna Convention on the Law of Treaties art. 2(d), May 23, 1969,
1155 U.N.T.S. 331 [hereinafter Vienna Convention]. This provision interprets reservations as normative and as expressions of specific values, but it does not take a position on
the general strategic value of reservations and objections within treaty law. For an examination of the doctrinal role of CRC reservations and the Vienna Convention, see
Lawrence J. Leblanc, Reservations to the Convention on the Rights of the Child: A Macroscopic View of State Practice, 4 INT’L. J. CHILD. RTS. 357 (1996). Leblanc concludes
that allowing reservations likely facilitated a greater number of States parties ratifying the
CRC, but the reservations, many of which were of a general character, make it difficult to
assess the CRC’s impact in specific countries. Id. at 380. Further, Leblanc finds that the
objections made against reservations were, as a group, internally inconsistent; objections
were directed to the reservations of some States, but not to others with the same reservation, and there were some general reservations to which no State objected. Id. Leblanc’s
ultimate conclusion is that such anomalies are to be expected under current treaty law.
See id.
72. See Vienna Convention, supra note 71, art. 2(d).
73. See id. art. 21(a).
74. See id. art. 21(b)(2).
75. See id. art. 19.
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POSTCOLONIAL ANALYSIS OF THE CRC
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treaty—was not followed regarding the CRC.76 Here, each of the States
parties objecting to reservations based on the understanding that they
were incompatible with and against the object and the purpose of the
CRC nonetheless noted that it still considered the reserving State to be a
party to the Convention.77
A. Reservations by Geographic Regions
Of the 193 States parties to the CRC, 119 made no reservations upon
signing and ratifying the CRC.78 A plurality of the remaining seventyfour States that submitted reservations are European.79 According to
region, the following are the total numbers of reservations: Europe,
twenty-six80; Asia, nineteen81; the Middle East, ten82; Africa, ten83; the
Americas, seven84; and the Caribbean, two.85 This empirical evidence
suggests that Europe, as a region, was most dissatisfied with the substance of the CRC, followed by Asia.86
76. See Reservations to Convention on Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, 1951 I.C.J. 15, 24 (May 28, 1951) [hereinafter ICJ Advisory Opinion] (“It has . . . been argued that any State entitled to become a party to the
Genocide Convention may do so while making any reservation it chooses by virtue of its
sovereignty. The Court cannot share this view. It is obvious that so extreme an application of the idea of State sovereignty could lead to a complete disregard of the object and
purpose of the Convention.”).
77. See CRC Ratifications, Reservations, and Objections, supra note 8.
78. See id.
79. See id.
80. See id. (Andorra, Austria, Belgium, Bosnia-Herzegovina, Croatia, Czech Republic, Denmark, France, Germany, the Holy See, Iceland, Ireland, Liechtenstein, Luxembourg, Malta, Monaco, the Netherlands, Norway, Poland, Serbia-Montenegro, Slovakia,
Slovenia, Spain, Switzerland, the United Kingdom, and Yugoslavia).
81. See id. (Australia, Bangladesh, Brunei, China, the Cook Islands, India, Indonesia,
Japan, Kiribati, Malaysia, Maldives, Myanmar (Burma), New Zealand, Pakistan, Qatar,
Republic of Korea, Samoa, Singapore, and Thailand).
82. See id. (Afghanistan, Iran, Iraq, Jordan, Kuwait, Oman, Saudi Arabia, Syria, Turkey, and the United Arab Emirates).
83. See id. (Algeria, Botswana, Djibouti, Egypt, Mali, Mauritania, Mauritius, Morocco, Swaziland, and Tunisia).
84. See id. (Argentina, Canada, Colombia, Ecuador, Guatemala, Uruguay, and Venezuela). Note that the United States is not a party to the CRC and has therefore not made
any reservations. See id.
85. See id. (Bahamas and Cuba).
86. The classification of reserving States into geographic regions is not statistically
adjusted for how many States parties to the CRC are in each region. Consequently, such
categorization should be regarded only as an indicator of regional patterns.
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B. The Substance of the Reservations
Examining the reservations’ substance reveals that most are clustered
around specific issues. There are eight areas into which the majority of
reservations can be grouped: child soldiers; the definition of the child;
freedom of religion; appeals and legal representation; children in the custody of the State; adoption; minority protection (identity); and general
reservations.
1. Child Soldiers87
Article 38 of the CRC establishes fifteen, instead of eighteen, as the
minimum age for recruitment to armed forces and participation in direct
hostilities.88 In a surprising turn during the drafting process, the United
States, though ultimately not a State party to the CRC, and the Union of
Soviet Socialist Republics (“U.S.S.R.”) both actively lobbied to promote
this minimum age of fifteen.89 They argued that the Working Group did
not have the mandate “to review existing standards in international
law.”90 Although the U.S.S.R. dissolved prior to the signing and ratification of the CRC, Russia succeeded the U.S.S.R. as a State party to the
CRC.91 Many other States, however, championed a minimum age of
eighteen, and the tensions over this issue during the drafting of the CRC
ran so high as to threaten consensus adoption by the General Assembly.92
Finally, a compromise was reached: stipulate the age of fifteen in the
CRC, but offer an Optional Protocol93 setting eighteen as the age for both
87. The following countries made reservations in connection with Article 38 of the
CRC: Andorra, Argentina, Austria, Colombia, Ecuador, Germany, the Netherlands, Poland, Serbia-Montenegro, Spain, Switzerland, and Uruguay. CRC Ratifications, Reservations, and Objections, supra note 8.
88. CRC, supra note 7, art. 38(2) (“States Parties shall take all feasible measures to
ensure that persons who have not attained the age of fifteen years do not take a direct part
in hostilities.”); id. art. 38(3) (“States Parties shall refrain from recruiting any person who
has not attained the age of fifteen years into their armed forces.”).
89. See ECOSOC, Comm’n on Human Rights, Report of the Working Group on a
Draft Convention on the Rights of the Child, ¶¶ 603–04, 608, U.N. Doc. E/CN.4/1989/48
(Mar. 2, 1989) [hereinafter ECOSOC, 1989 Report of the Working Group], as reprinted
in DETRICK, supra note 26, at 513–14.
90. Id. ¶ 604, as reprinted in DETRICK, supra note 26, at 514.
91. Russia became a State party to the CRC in August 1990. CRC Ratifications, Reservations, and Objections, supra note 8.
92. See 1989 Report of the Working Group, ¶ 605, as reprinted in DETRICK, supra
note 26, at 514.
93. There are two optional protocols to the CRC. Optional Protocol to the Convention
on the Rights of the Child on the Involvement of Children in Armed Conflicts, G.A. Res.
54/263, U.N. Doc. A/RES/54/263 (May 25, 2000); Optional Protocol to the Convention
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POSTCOLONIAL ANALYSIS OF THE CRC
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recruitment to armed forces and direct participation in hostilities.94 Reservations made in response to Article 38 grew in number as States unilaterally bound themselves not to militarily recruit children under the age
of eighteen, instead of those under fifteen.95 The other reservations in
connection with Article 38 were made in the form of declarations wherein the State party notes its regret and disappointment with the inclusion
of the age of fifteen as the minimum age.96 In total, twelve States made
reservations with respect to Article 38, all favoring the age of eighteen
for military recruitment.97 Eight of the countries are from Europe, and
four represent the Americas.98
2. The Definition of the Child99
As previously noted, the CRC drafters deliberately abstained100 from
setting forth in Article 1 when life begins.101 Notwithstanding this obvious attempt to avoid embroilment in the debate on abortion, several
reservations regarding Article 1 and its definition of the child were made
on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, G.A. Res 54/263, U.N. Doc. A/RES/54/263 (May 25, 2000).
94. See 1989 Report of the Working Group, supra note 92, ¶ 610, as reprinted in
DETRICK, supra note 26, at 515.
95. See CRC Ratifications, Reservations, and Objections, supra note 8.
96. Argentina’s declaration, for example, reads as follows:
Concerning [A]rticle 38 of the Convention, the Argentine Republic declares
that it would have liked the Convention categorically to prohibit the use of
children in armed conflicts. Such a prohibition exists in its domestic law which,
by virtue of [A]rticle 41 of the Convention, it shall continue to apply in this regard.
Id.
97. See id.
98. See supra note 88 and accompanying text.
99. The following countries made reservations regarding Article 1 of the CRC: Argentina, Botswana, Cuba, Guatemala, the Holy See, Indonesia, Liechtenstein, Malaysia,
and the United Kingdom. See CRC Ratifications, Reservations, and Objections, supra
note 8.
100. Morocco suggested a compromise between the States parties that see life as beginning at conception and those that see life as beginning at birth, delineating childhood
with reference to its termination—the eighteenth birthday (a suggestion the Working
Group adopted). See ECOSOC, 1980 Report of the Working Group, supra note 26, ¶¶
29–30, 32–36 (discussing the beginning of life and the termination of childhood).
101. CRC, supra note 7, art. 1 (“For the purposes of the present Convention, a child
means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”).
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with domestic abortion policies in mind.102 The reservations are of three
types.103 Regarding the first, the State party makes an affirmative assertion that the CRC does not cover the unborn child, only the live-born
child. The United Kingdom and Cuba made this kind of reservation.104
The second type involves an overt claim that life begins at conception, a
position taken by Argentina, Guatemala, and the Holy See.105 The representatives of these countries argue that the CRC therefore covers the
rights of the unborn child.106 The third type of reservation, made by
Botswana and Indonesia, claims that Article 1 conflicts with national
law, but does not further elaborate.107
3. Freedom of Religion108
The cultural values critique charges that international law, especially as
regards human rights, favors Christian values over those of other religions, especially Islam.109 As the freedom of religion includes the right to
102. See CRC Ratifications, Reservations, and Objections, supra note 8 (Argentina,
Botswana, Cuba, Guatemala, the Holy See, Indonesia, Liechtenstein, Malaysia, and the
United Kingdom).
103. Liechtenstein’s reservation, which asserts that the age of majority is twenty, is
outside of the traditional abortion debate. See id.
104. See id. (“The United Kingdom interprets the Convention as applicable only following a live birth.”).
105. See id.
106. For example, Guatemala made the following reservation regarding the beginning
of life:
With reference to [A]rticle 1 of the Convention, and with the aim of giving legal definition to its signing of the Convention, the Government of Guatemala
declares that [A]rticle 3 of its Political Constitution establishes that: ‘[t]he State
guarantees and protects human life from the time of its conception, as well as
the integrity and security of the individual.’
Id.
107. See id.
108. Reservations to Article 14 of the CRC were made by Algeria, Bangladesh, Djibouti, Indonesia, Iran, Iraq, Jordan, Malaysia, Morocco, the Netherlands, Oman, Poland,
Qatar, Singapore, Syria, and the United Arab Emirates. See id.
109. See, e.g., ANGHIE, supra note 2, at 13–31 (discussing Francisco de Vitoria and the
colonial origins of international law); MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF
NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870–1960, at 131 (2002) (discussing the “Christian” underpinnings of the “universalism” of early international law
theorists such as Grotius and Vattel); SHAW, supra note 1, at 22–23 (describing the development of international law in the middle of the seventeenth century as a Christian and
European institution).
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POSTCOLONIAL ANALYSIS OF THE CRC
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adopt a new religion,110 it may clash with Islamic views. Since the drafting of the Universal Declaration in 1948, a number of Islamic States
have not dissented from the right to belong to any religion, or the right
not to be discriminated against because of one’s religious beliefs or
membership in a minority religion.111 Rather, several of these States have
objected to allowing people to convert to another religion,112 contending
that because Islam is the “right” religion it would be irresponsible for a
government to permit people to abandon it.113
Another argument against the provision granting the right to change religions is that the colonial project was partly realized through Christian
missionaries persuading or compelling people to convert.114 Indeed, the
role of missionaries in the colonial project, in part, explains why the
110. ICCPR, supra note 38, art. 18 (“Everyone shall have the right to freedom of
thought, conscience and religion. This right shall include freedom to have or to adopt a
religion or belief of his choice, and freedom, either individually or in community with
others and in public or private, to manifest his religion or belief in worship, observance,
practice and teaching.”) (emphasis added).
111. See, e.g., 183d Plenary Meeting, supra note 57. The Author prefers to use the
term “Islamic States” because it is commonly employed in scholarship. It should be
noted, though, that these States’ commitments to Islam and Shariah law vary in key respects. See, e.g., Tad Stahnke & Robert C. Blitt, The Religion-State Relationship and the
Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Predominantly Muslim States, 36 GEO. J. INT’L L. 947, 951 (2005) (assessing the
constitutions of “predominantly Muslim states” and finding a “broad assortment of constitutional views—ranging from Islamic republics with Islam as the official state religion
to secular states with strict separation of religion and state”).
112. During the drafting process, Moroccan representatives explained that, under the
law of Morocco, the child inherits his or her religious affiliation through his or her father.
See ECOSOC, Comm’n on Human Rights, Report of the Working Group to Consider the
Question of a Convention on the Rights of a Child: Considerations, ¶ 2, U.N. Doc.
E/CN.4/1987/WG.1/WP.35 (1987) [hereinafter Morocco Statement], as reprinted in Legislative History I, supra note 9, at 458.
113. See, e.g., 183d Plenary Meeting, supra note 57 (setting forth the Egyptian representative’s comment exemplifying the positions of certain Islamic States).
114. This conflict is between a Christian positive view on the right to “adopt” a religion and the Islamic critical view that one is born into a religion. The Holy See emphasized the importance of individual choice and the freedom of the individual child to make
religious choices. See ECOSOC, Comm’n on Human Rights, Report of the Working
Group to Consider the Question of a Convention on the Rights of a Child: Considerations, ¶ 15, U.N. Doc. E/CN.4/1984/71 (1984), as reprinted in DETRICK, supra note 26, at
241. Compare id., with ECOSOC, Paper Submitted by the Permanent Representative of
Bangladesh, at 2, U.N. Doc. E/CN.4/1986/39, annex IV (1986) [hereinafter Bangladesh
Statement I], as reprinted in DETRICK, supra note 26, at 244 (emphasizing how Article 7,
the predecessor to Article 14 in the adopted version of the CRC, “appears to run counter
to the traditions of the major religious systems of the world”).
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freedom of religion provisions remain contested.115 This argument was
made during the drafting of the CRC116 and, consequently, the CRC uses
modified language compared to the ICCPR. For example, the CRC does
not explicitly use the word “adopt” relative to religion.117
Many States made reservations regarding the freedom of religion
provisions, which can be grouped as follows:118 Algeria, Djibouti (withdrawn reservation), Iran, Iraq, Jordan, Morocco,119 Oman, Qatar (withdrawn reservation), Syria, and the United Arab Emirates all point to
Shariah law.120 Bangladesh, Poland,121 and Singapore reference maintaining parental authority over a child’s religious affiliation.122 Indonesia and
Malaysia exhibit concern with Article 14 and how it bears upon their
domestic legislation.123 And the Netherlands expressly construes Article
14 as including a child’s right to change his or her religion and notes that
this is in accordance with Article 18 of the ICCPR.124
115. Cf. 183d Plenary Meeting, supra note 57 (the comment of the Egyptian representative being an example of early controversy surrounding the freedom of religion provisions in human rights instruments).
116. See Bangladesh Statement I, supra note 114.
117. Compare CRC, supra note 7, art. 14(1) (providing that “States Parties shall respect the right of the child to freedom of thought, conscience and religion”), with ICCPR,
supra note 38, art. 18 (providing that the right to freedom of religion “shall include freedom to have or to adopt a religion or belief of his choice”).
118. See CRC Ratifications, Reservations, and Objections, supra note 8 (Algeria, Bangladesh, Djibouti, Indonesia, Iran, Iraq, Jordan, Malaysia, Morocco, the Netherlands,
Oman, Poland, Qatar, Singapore, Syria, and the United Arab Emirates).
119. Morocco’s reservation is typical: “[t]he Kingdom of Morocco, whose Constitution guarantees to all the freedom to pursue his religious affairs, makes a reservation to
the provisions of [A]rticle 14, which accords children freedom of religion, in view of the
fact that Islam is the State religion.” Id.
120. See id.
121. See, e.g., id. (“The rights . . . shall be exercised with respect for parental authority,
in accordance with Polish customs and traditions regarding the place of the child within
and outside the family.”).
122. See CRC Ratifications, Reservations, and Objections, supra note 8.
123. See id.
124. Id. (“It is the understanding of the Government of the Kingdom of the Netherlands that [A]rticle 14 of the Convention is in accordance with the provisions of [A]rticle
18 of the International Covenant on Civil and Political Rights of 19 December 1966 and
that this [A]rticle shall include the freedom of a child to have or adopt a religion or belief
of his or her choice as soon as the child is capable of making such choice in view of his
or her age or maturity.”).
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POSTCOLONIAL ANALYSIS OF THE CRC
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4. The Rights to Legal Representation and to Appeal125
The rights to a fair trial and to counsel in a criminal trial are cornerstones of civil and political rights. The CRC extends these rights to the
child within the juvenile justice system.126 The two provisions in Article
40 that provoked the most reservations are the child’s right to “legal or
other appropriate assistance in . . . his or her defense,”127 and the right to
appeal a decision when it is “considered to have infringed the penal
law.”128 Differences among the reservations made by States parties are
minor.129 Germany and Switzerland made reservations to both the right
to legal representation in Article 40(2)(v) and the right to appeal in Article 40(2)(ii).130 Belgium, Denmark, France, Korea, and Monaco made
reservations against the latter provision.131
125. Belgium, Denmark, France, Germany, Korea, Monaco, and Switzerland made
reservations to the provisions regarding the child’s rights to legal representation and to
appeal. See id.
126. CRC, supra note 7, art. 40 (“States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a
manner consistent with the promotion of the child’s sense of dignity and worth, which
reinforces the child’s respect for the human rights and fundamental freedoms of others
and which takes into account the child’s age and the desirability of promoting the child’s
reintegration and the child’s assuming a constructive role in society.”).
127. A related provision protects the child’s right “[t]o be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or
legal guardians, and to have legal or other appropriate assistance in the preparation and
presentation of his or her defense.” Id. art. 40(2)(b)(ii).
128. The child’s right to appeal a criminal conviction is protected: “[i]f considered to
have infringed the penal law, [a child is entitled] to have this decision and any measures
imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law.” Id. art. 40(2)(b)(v).
129. Regarding the right to counsel, Switzerland’s reservation is typical: “the Swiss
penal procedure applicable to children, which does not guarantee either the unconditional
right to assistance or separation, where personnel or organization is concerned, between
the examining authority and the sentencing authority, is unaffected.” See CRC Ratifications, Reservations, and Objections, supra note 8. Regarding the right to appeal, Monaco’s reservation is typical:
The Principality of Monaco interprets [A]rticle 40, paragraph 2(b)(v) as stating
a general principle which has a number of statutory exceptions. Such, for example, is the case with respect to certain criminal offences. In any event, in all
matters the Judicial Review Court rules definitively on appeals against all decisions of last resort.
Id.
130. Id.
131. Id.
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5. The Child in the Custody of the State132
The CRC bans giving children the death penalty or life imprisonment
without possibility of parole.133 Malaysia and Singapore made reservations against the provision that bans corporal punishment, which falls
under inhumane or degrading treatment or punishment.134 However, the
provision in Article 37 responsible for the most reservations is the demand that juveniles in the custody of the State be separated from
adults.135 Australia, Canada, the Cook Islands, Iceland, Japan, and New
Zealand objected to this obligation.136 The justification commonly cited
for such reservations is a lack of resources needed to create and maintain
separate facilities for adults and children.137 Australia’s reservation invokes the country’s geographic and demographic constraints.138
132. Australia, Canada, the Cook Islands, Iceland, Japan, Malaysia, the Netherlands,
New Zealand, Singapore, Switzerland, and the United Kingdom made reservations to the
provision on the punishment of children. See id.
133. CRC, supra note 7, art. 37(a) (“No child shall be subjected to torture or other
cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life
imprisonment without possibility of release shall be imposed for offences committed by
persons below eighteen years of age . . . .”).
134. Singapore’s reservation to these provisions reads as follows: “[t]he Republic of
Singapore considers that [A]rticles 19 and 37 of the Convention do not prohibit the judicious application of corporal punishment in the best interest of the child.” CRC Ratifications, Reservations, and Objections, supra note 8.
135. CRC, supra note 7, art. 37(c) (“In particular, every child deprived of liberty shall
be separated from adults unless it is considered in the child’s best interest not to do so
and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.”).
136. CRC Ratifications, Reservations, and Objections, supra note 8.
137. New Zealand’s reservation, for example, provides:
The Government of New Zealand reserves the right not to apply [A]rticle 37(c)
in circumstances where the shortage of suitable facilities makes the mixing of
juveniles and adults unavoidable; and further reserves the right not to apply
[A]rticle 37(c) where the interests of other juveniles in an establishment require
the removal of a particular juvenile offender or where mixing is considered to
be of benefit to the persons concerned.
Id.
138. Id. (“Australia accepts the general principles of [A]rticle 37. In relation to the
second sentence of paragraph (c), the obligation to separate children from adults in prison
is accepted only to the extent that such imprisonment is considered by the responsible
authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia, therefore, ratifies the Convention to the extent that it is unable to comply
with the obligation imposed by [A]rticle 37(c).”).
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POSTCOLONIAL ANALYSIS OF THE CRC
21
6. Adoption139
Located in Article 21, the CRC’s adoption provision140 was added on
the initiative of Barbados and Germany.141 The reservations against this
provision exhibit two main strands, one concerning internal secular matters and the other involving Shariah law.142
Argentina, Bangladesh, Canada, Indonesia, the Republic of Korea, and
Venezuela made reservations against Article 21 that are secular in nature.143 Argentina stresses the need “to prevent trafficking in and the sale
of children,”144 for example, and Canada references practices among its
aboriginal peoples.145 Bangladesh simply notes that “Article 21 would
apply subject to the existing laws and practices in Bangladesh.”146
139. The States parties that made reservations regarding adoption are Argentina, Bangladesh, Brunei, Canada, Egypt, Indonesia, Jordan, Kuwait, Maldives, Oman, Republic
of Korea, Spain, Syria, the United Arab Emirates, and Venezuela. Id.
140. CRC, supra note 7, art. 21 (“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount
consideration.”).
141. See ECOSOC, Comm’n on Human Rights, First Polish Draft Convention and
General Comments, at Barbados comments ¶ 2, Fed. Repub. of Germany comments ¶ 2,
U.N. Doc. E/CN.4/1324/ (Nov. 7–8, 1978), as reprinted in DETRICK, supra note 26, at 42, 46.
142. During the drafting of the CRC, Algeria, Egypt, Iraq, Jordan, Kuwait, Libyan
Arab Jamahiriya, Morocco, Oman, Pakistan, and Tunisia collectively suggested that the
“State Parties to the present Convention shall endeavor, in accordance with their domestic laws and legislation, to provide an alternative family for a child who does not have a
natural family.” See ECOSOC, Comm’n on Human Rights, Report of the Working Group
to Consider the Question of a Convention on the Rights of a Child: Second Reading
(1988–89), ¶ 2, U.N. Doc. E/CN.4/1989/WG.1/WP.4 (1989), as reprinted in U.N. Office
of the High Comm’r for Human Rights, Legislative History of the Convention on the
Rights of the Child, vol. II, at 547, U.N. Doc. ST/HR/PUB/07/1 (2007), available at
http://www.ohchr.org/Documents/Publications/LegislativeHistorycrc2en.pdf [hereinafter
Legislative History II].
143. See CRC Ratifications, Reservations, and Objections, supra note 8.
144. Id. (“The Argentine Republic enters a reservation to subparagraphs (b), (c), (d)
and (e) of [A]rticle 21 of the Convention on the Rights of the Child and declares that
those subparagraphs shall not apply in areas within its jurisdiction because, in its view,
before they can be applied, a strict mechanism must exist for the legal protection of children in matters of inter-country adoption, in order to prevent trafficking in and the sale of
children.”).
145. Id.
146. Id. In the drafting process, Bangladesh had expressed concern that foreign missionaries could exploit adoption to proselytize and convert children to Christianity. See
ECOSOC, Comm’n on Human Rights, Paper Submitted by the Permanent Representative
of Bangladesh, at 2, U.N. Doc. E/CN.4/1986/39, annex IV (1986) [hereinafter Bangladesh Statement II], as reprinted in Legislative History II, supra note 142, at 545.
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Regarding the second type of reservation, several Islamic States outlaw
adoption because it is viewed as inconsistent with Shariah law.147 For
example, Kuwait’s reservation seems to equate adoption with the abandonment of Islam.148 Instead of formal adoption, many Islamic States
practice kafalah, which does not obscure the original blood relations of
the child, but is a permanent change of guardianship.149
7. Minority Rights: Identity and Culture150
The identity and culture reservations cover both the right not to be discriminated against, as well as the right to belong to and participate in
minority cultures.151 The United States originally opposed the inclusion
of illegal immigrants in any elements of the CRC. 152 However, the Unit147. See CRC Ratifications, Reservations, and Objections, supra note 8.
148. See id. (“The State of Kuwait, as it adheres to the provisions of the Islamic Shariah as the main source of legislation, strictly bans abandoning the Islamic religion and
does not therefore approve adoption.”).
149. Article 20 of the CRC regulating the situation concerning children deprived of
their families directly addresses kafalah as an option if the child is deprived of his or her
family. See CRC, supra note 7, art. 20. The kafalah system is well-described by Syria in
an official note sent to the Secretary General regarding Germany’s objection to Syria’s
reservation:
The laws in effect in the Syrian Arab Republic do not recognize the system of
adoption, although they do require that protection and assistance should be provided to those for whatever reason permanently or temporarily deprived of their
family environment and that alternative care should be assured them through
foster placement and kafalah, in care centers and special institutions and, without assimilation to their blood lineage (nasab), by foster families, in accordance
with the legislation in force based on the principles of the Islamic Shariah.
CRC Ratifications, Reservations, and Objections, supra note 8.
150. The Bahamas, Belgium, New Zealand, and the United Kingdom made reservations to the general applicability or coverage of the CRC, and limited the coverage to
legal residents in their reservations; France and Oman made a reservation to the minority
rights in article 30; Venezuela’s reservation links Article 30 with Article 2. See CRC
Ratifications, Reservations, and Objections, supra note 8.
151. Articles 2 and 30 of the CRC both establish the right to practice a minority culture. See CRC, supra note 7, arts. 2, 30.
152. The drafting process shows a split between countries that wanted to include every
child and the countries that only wanted to include legal residents. Consider, for example,
the comments of Norway and the United States. Norway’s comment during the drafting
process was that the CRC should cover all children “irrespective of the legality of their
parents’ stay.” See Legislative History I, supra note 30, at 320. The comment the United
States made during the drafting process reads as follows: “[e]ach State Party to the
present Convention shall respect and extend all the rights set forth in this Convention to
all children lawfully in its territory . . . .” U.N. Doc. E/CN.4/1981/WP.1/WP.7 (1981), as
reprinted in Legislative History I, supra note 30, at 320.
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POSTCOLONIAL ANALYSIS OF THE CRC
23
ed States withdrew its suggestion to distinguish between legal and illegal
residents after a general debate in the Working Group. The CRC thus
does not differentiate between the two.153 Its goal is to cover all children,
regardless of their legal status, in order to eliminate gaps in protection.154
Nevertheless, the Bahamas, Belgium, New Zealand, and the United
Kingdom made reservations that seek to preserve the right to make a distinction between legal and illegal immigrants, especially with regard to
accessing the public benefits of the welfare state.155 France156 and
Oman157 made reservations against connecting the right to exercise one’s
minority culture, as articulated in Article 30 of the CRC,158 with the antidiscrimination provision in Article 2, whereas Venezuela made a reservation linking Article 30 with Article 2.159
153. See CRC, supra note 7, art. 2.
154. See id.
155. New Zealand’s reservation with respect to legal status is representative:
Nothing in this Convention shall affect the right of the Government of New
Zealand to continue to distinguish as it considers appropriate in its law and
practice between persons according to the nature of their authority to be in New
Zealand including but not limited to their entitlement to benefits and other protections described in the Convention, and the Government of New Zealand reserves the right to interpret and apply the Convention accordingly.
CRC Ratifications, Reservations, and Objections, supra note 8. Belgium’s reservation
strikes a similar chord: “[w]ith regard to [A]rticle 2, paragraph 1, according to the interpretation of the Belgian Government non-discrimination on grounds of national origin
does not necessarily imply the obligation for States automatically to guarantee foreigners
the same rights as their nationals.” Id.
156. France’s reservation suggests a contradiction between Article 2, grounding the
right not to be discriminated against, and Article 30, establishing the right to exercise
one’s cultural rights: “[t]he Government of the Republic declares that, in the light of
[A]rticle 2 of the Constitution of the French Republic, [A]rticle 30 is not applicable so far
as the Republic is concerned.” Id.
157. Id. (“The Sultanate [of Oman] does not consider itself to be bound by those provisions of [A]rticle 30 that allow a child belonging to a religious minority to profess his or
her own religion.”).
158. CRC, supra note 7, art. 30 (“In those States in which ethnic, religious or linguistic
minorities or persons of indigenous origin exist, a child belonging to such a minority or
who is indigenous shall not be denied the right, in community with other members of his
or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.”).
159. CRC Ratifications, Reservations, and Objections, supra note 8.
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8. General Reservations160
The many general reservations constitute one of the most controversial
consequences of the near-universal ratification of the CRC.161 Their paramount concern is that the CRC should be subject to religious and/or
constitutional constraints.162 The States parties whose reservations concern religious and moral constraints are the following: Djibouti, which
cites religion and tradition; Afghanistan, Brunei, Iran, Kuwait, Mauritania,163 Qatar, Saudi Arabia, and Syria, all of which cite Shariah law; and
the Holy See,164 which cites Catholic doctrine.165 The Cook Islands,
Indonesia, Singapore, and Tunisia give secular justifications for their
general reservations,166 most commonly invoking their national constitutions.167
160. Afghanistan, Brunei, the Cook Islands, Djibouti, the Holy See, Indonesia, Iran,
Ireland, Kuwait, Mauritania, Qatar, Saudi Arabia, Singapore, Switzerland, Syria, and
Tunisia made general reservations. See id. The reservations of the Cook Islands and Singapore reference their constitutions, whereas the reservation of the Holy See references to
the Catholic religion and morals. Id.
161. The United States and Somalia are the only nonparties to the CRC. See id.
162. This approach—of broad-reaching general reservations—echoes certain reservations to the CEDAW. See Madhavi Sunder, Piercing the Veil, 112 YALE L.J. 1399, 1426
(2003).
163. CRC Ratifications, Reservations, and Objections, supra note 8 (“In signing this
important Convention, the Islamic Republic of Mauritania is making reservations to articles or provisions which may be contrary to the beliefs and values of Islam, the religion
of the Mauritania People and State.”).
164. Id. (“[The Holy See declares] that the application of the Convention be compatible in practice with the particular nature of the Vatican City State and of the sources of its
objective law (art. 1, Law of 7 June 1929, n.11) and, in consideration of its limited extent,
with its legislation in the matters of citizenship, access and residence.”).
165. Id.
166. See id.
167. Singapore’s reservation, for instance, reads:
The Constitution and the laws of the Republic of Singapore provide adequate
protection and fundamental rights and liberties in the best interests of the child.
The accession to the Convention by the Republic of Singapore does not imply
the acceptance of obligations going beyond the limits prescribed by the Constitution of the Republic of Singapore nor the acceptance of any obligation to introduce any right beyond those prescribed under the Constitution.
Id.
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POSTCOLONIAL ANALYSIS OF THE CRC
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C. Summary of the Cultural Values Critique
The reservations States parties submitted do not reveal an overarching
disapproval of the CRC or its goals.168 However, even within the clusters
of reservations, States parties were motivated by different concerns covering a wide variety of reasons.169 Notably, Western countries made
reservations to provisions embodying core civil and political rights,
including the rights to a fair trial, to appeal, to legal representation, to
culture, and to nondiscrimination.170 The reservations of Islamic States
center around the freedom of religion, referencing a disjuncture between
Shariah law and the CRC’s provisions regarding the freedom of conscience and adoption.171 Another significant religious divide is between
Catholic countries, which insist that life begins at conception, and States
parties that fix the legal entitlement to human rights at birth.172
In sum, the apparent disagreements can be traced to competing cultural
values, but these disagreements are quite evenly spread among States
parties and across the CRC. Some points of contention, such as the freedom of religion and certain aspects of the issue of adoption, may partly
originate from a colonial context, but do not exclusively have colonialism as their origin and reason.173
168. There is a distinction between claiming that the CRC process does not represent a
general bias against specific cultures and arguing that the CRC process does not indicate
any biases at all. My argument is not that the process of drafting, signing, and ratifying
the CRC was without bias, but, rather, that the biases evident in the process were not
limited to a single region or culture. In fact, the biases evident in the process were directed at, or apparent in, the actions of representatives of many regions and cultures.
Bonny Ibhawoh has written about the danger of taking a static view of culture, which
would undercut the cultural legitimacy of human rights. See Bonny Ibhawoh, Between
Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the
African State, HUM. RTS. Q. 838, 841–42 (2000).
169. For example, in the reservations to the CRC’s provision on adoption, some States
parties made religiously motivated reservations, and others made reservations with reference to internal administration of the matter. See supra notes 139–49 and accompanying
text.
170. See CRC Ratifications, Reservations, and Objections, supra note 8.
171. See id.
172. See id.
173. In the drafting of CRC, Bangladesh suggested a modification regarding adoption
in order to avoid a conflict with Islamic inheritance law, and also suggested a provision
further protecting orphans from proselytization. See Bangladesh Statement II, supra note
146, at 544–45. Morocco echoed the concerns of Bangladesh regarding inheritance law.
See ECOSOC, Comm’n on Human Rights, Report of the Working Group to Consider the
Question of a Convention on the Rights of a Child: Considerations, ¶ 2, U.N. Doc.
E/CN.4/1987/25 (1987), as reprinted in Legislative History II, supra note 142, at 545.
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III. EUROPE’S REACTION TO POSTCOLONIAL DISSENT
The postcolonial critique is not as easily applied to the CRC as to human rights instruments adopted before the final stages of colonialism. It
is daunting to levy a postcolonial critique against the CRC, given its almost universal ratification and the inclusion of postcolonial States in the
drafting of the Convention. While the remains of a colonial legacy may
be found in both the context of the CRC and parties’ reservations, it
would be a struggle to argue that postcolonial States disapproved of the
very treaty that they ratified, especially when the reservations are relatively balanced geographically.174 This Article now proceeds to analyze
the objections made against reservations, where the deep colonial structure of international law becomes strikingly clear.
If a State party does not want to be bound by or indeed does not agree
with a reservation made by another State party, it may communicate an
objection to the reservation. Objections to reservations are regulated by
Article 51 of the CRC and Article 19(c) of the Vienna Convention, both
of which provide that a State party may object to a reservation that is
“incompatible with the object and purpose” of the Convention.175 The
Vienna Convention also states, “A reservation incompatible with the object and purpose of the present Convention shall not be permitted.”176
However, in contrast to the parties that made objections in connection
with the Genocide Convention, each State objecting in connection with
the CRC insisted on the reserving State still being bound by the Convention, even when the reservation in question was perceived as being incompatible with the object and purpose of the treaty itself.177
Unlike the more fragmented patterns apparent in the reservations, a
unified theme emerges after analysis of the objections to reservations.
All twelve States parties objecting to reservations made at the signing
and ratification of the CRC are European: Austria, Belgium, Denmark,
Finland, Germany, Ireland, Italy, the Netherlands, Norway, Portugal,
Slovakia, and Sweden.178 Twenty-three States parties’ reservations received objections, and of these countries, only two are European.179 Mul174. See supra notes 78–86 and accompanying text.
175. Vienna Convention, supra note 71, art. 19(c).
176. Id.
177. Compare CRC Ratifications, Reservations, and Objections, supra note 8, with ICJ
Advisory Opinion, supra note 76, at 24.
178. See CRC Ratifications, Reservations, and Objections, supra note 8.
179. The remaining States parties whose reservations received objections are Bangladesh, Botswana, Brunei, Djibouti, Indonesia, Iran, Jordan, Kiribati, Kuwait, Malaysia,
Myanmar (Burma), Oman, Pakistan, Qatar, Saudi Arabia, Singapore, Syria, Thailand,
Tunisia, Turkey, and the United Arab Emirates. See id.
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POSTCOLONIAL ANALYSIS OF THE CRC
27
tiple States parties can object to the same reservation, and each State party can deliver multiple objections; there were a total of eighty-nine objections.180 Again, only two objections are directed towards reservations
of European countries; the Netherlands directed objections to the reservations of Andorra and Liechtenstein. The remaining eighty-seven are
against the reservations of non-Western countries.181
A. Objections to Reservations
In the legislative process, the objection phase is the first occasion
where the States parties relate directly to each other rather than to the
document. That is, before the objection phase, all discussions and negotiations are focused on the treaty itself, either through drafting or through
dissent to the material outcome of the drafting process in the form of reservations. By the time that States parties make objections, the treaty text
is complete.
Regarding the CRC, the general reservations prompted the majority of
objections. With the exception of the Holy See, non-European countries
made the general reservations, all of which are either normative (i.e.,
based on religious and/or moral premises) or legalistic (i.e., grounded in
the supremacy of national legislation relative to the CRC).182 With the exception of Afghanistan and the Holy See, States parties that made general
reservations in reference to religion met with objections.183 Afghanistan
made a general reservation upon signing the CRC, but its representatives
did not follow up with a specific reservation at the moment of ratification.184 Of the States parties whose general reservations invoke national
legislation, Indonesia, Singapore, and Tunisia received objections, while
the Cook Islands did not receive any.185
The reservation of the Holy See, to which no State party objected,
reads: “[t]he Holy See, in acceding to this Convention, does not intend to
180. See id.
181. See id.
182. Again, the reservations of Afghanistan, Brunei, Djibouti, the Holy See, Iran, Kuwait, Mauritania, Qatar, Saudi Arabia, and Syria refer to religious and/or moral constraints, whereas the reservations of the Cook Islands, Indonesia, Singapore, and Tunisia
refer to the limiting effect of national legislation. See id.
183. Madhavi Sunder describes the role of religion relative to international law thus:
“[s]imply put, religion is the ‘other’ of international law.” Sunder, supra note 162, at
1402. Sunder argues that international law treats religion as something irrational and
primitive and, further, that the view of religion as a private matter obscures many human
rights violations against women that take place in the name of religion. See id. at
1403–04.
184. See CRC Ratifications, Reservations, and Objections, supra note 8.
185. See id.
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prescind in any way from its specific mission which is of a religious and
moral character.”186 Compare this reservation made by the Holy See with
the reservations of Iran and Indonesia, which prompted objections. Iran’s
reservation states: “[t]he Government of the Islamic Republic of Iran
reserves the right not to apply any provisions or articles of the Convention that are incompatible with Islamic Laws and the international legislation in effect.”187 And Indonesia’s reservation notes: “[t]he ratification
of the [CRC] by the Republic of Indonesia does not imply the acceptance
of obligations going beyond the Constitutional limits nor the acceptance
of any obligation to introduce any right beyond those prescribed under
the Constitution.”188 Austria’s objection to the reservations of Brunei,
Kiribati, Malaysia, and Saudi Arabia is framed as follows: “Austria could
not consider the reservation[s] . . . as compatible with the provisions essential for the implementation of the object and purpose of the
[CRC].”189
It is understandable that, on legal and child rights grounds, so many
countries objected to the general reservations, which could sharply limit
the rights of children in these reserving countries. It is puzzling, however, that the general reservations made by the non-Western States were the
only reservations that prompted reservations from European States parties.
The reservations against the antidiscrimination requirements in Article 2
of the CRC and the holding of nonsovereign territories are just as sweeping as the other general reservations. They withhold human rights protections from large populations of children, but, strangely, they passed
without objections.
B. The Reservations Against the Universal Applicability of the CRC
The goal of the CRC was to secure universal coverage of children’s
rights through two steps: achieving universal ratification, and certifying
that every child within each jurisdiction was covered by the Convention.
As noted previously, full coverage within the jurisdictions of States parties is established by Article 2 of the CRC, which does not distinguish
between legal and illegal residents.190 However, the Bahamas, Belgium,
186. Id.
187. Id.
188. Id.
189. Id.
190. See CRC, supra note 7, art. 2 (“States Parties shall respect and ensure the rights
set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s
race, colour, sex, language, religion, political or other opinion, national, ethnic or social
origin, property, disability, birth or other status.”) (emphases added).
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POSTCOLONIAL ANALYSIS OF THE CRC
29
New Zealand, and the United Kingdom made reservations to the general
applicability of the CRC and limited its coverage to legal residents.191
Despite the fact that these reservations compromise the core intent and
purpose of the CRC, there were no objections to these reservations.
C. The Invisibility of Colonialism During the Ratification of the CRC
The legal status of children within the remaining nonsovereign territories, most of which are formerly colonial islands, was never an issue under public discussion,192 from the drafting and adoption process all the
way through to ratification. The status of these children vis-à-vis the
CRC was communicated postratification in the form of an exchange of
notes between States parties.193 With the exception of arguments between
the United Kingdom and Argentina concerning which country held
rightful dominion over the Falkland Islands, the legitimacy of these holdings was never questioned.194
Argentina, China, Denmark, the Netherlands, and the United Kingdom
communicated their positions regarding the applicability of the CRC in
territories outside national boundaries under their control.195 At no point
during the signing, ratification, waging of objections, or exchanging of
notes was the legitimacy of external control over these territories questioned.
D. Summary of Europe’s Reactions to Postcolonial Dissent
International law’s origin in the colonial encounter is significant and
affects even postcolonial legislation such as the CRC. The very concept
of sovereignty serves as an example. Much was made of the reference to
Islamic law in the general reservations. Judge Sir M. Zafrulla Khan of
the International Court of Justice explains that, for those who follow Islamic law, it is impossible to place any law higher than the law of Allah:
“[i]n Islam the concept of the Sovereign is entirely different (from in Eu-
191. See supra note 155 and accompanying text.
192. These nonsovereign territories include Anguilla, Aruba, Bermuda, the British
Virgin Islands, the Cayman Islands, the Ducie and Oeno Islands, the Falkland Islands
(Malvinas), the Fore Island, Greenland, Henderson, Hong Kong, the Isle of Man, Macao,
Montserrat, the Netherlands Antilles, Pitcairn, St. Helena, the St. Helena Dependencies,
South Georgia and the South Sandwich Islands, the Turks and Caicos Islands, and Tokelau. See CRC Ratifications, Reservations, and Objections, supra note 8.
193. See id.
194. See id.
195. See id.
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rope) [sic]. Absolute sovereignty pertains to Allah alone.”196 It is this
aspect of the general reservations that gave rise to Europe’s uniform response as manifested in its objections.197
However, in her article examining the role of cultural relativism in the
interactions between the U.N. Committee on Human Rights and States
parties, Sonia Harris-Short shows that the Islamic States’ general reservations do not serve to avoid CRC-mandated obligations, as European
objectors had feared.198 The facts that Europe reacted to non-European
concepts of sovereignty, that Europe did not take issue with the holding
of nonsovereign territories, which could jeopardize coverage of the full
Convention to large populations of children, and that Europe made reservations to exclude illegal immigrant children from the entire Convention
are evidence of Europe’s sense of entitlement to international law and its
investment in keeping international law Eurocentric. In short, European
States were more concerned that Islamic States parties had declared international law to be limited by Islamic law than with ensuring that all
children were granted rights.
CONCLUSION
The colonial structure of international law does not derive solely from
the law itself. My argument is that the deep colonial structure is a European sense of prerogative to international law as essentially European.
The deep colonial structure of international law is present through direct
links between colonial and postcolonial laws in legal concepts and areas
such as sovereignty, international trade, and human rights. A full postcolonial critique, however, is difficult to impose upon the CRC, as the
drafting process was inclusive of postcolonial States, and the Convention
has been ratified by every country, except the United States and Somalia.
Postcolonial States have wholeheartedly embraced the CRC through their
ratifications.
For this reason, the CRC provides such an interesting case study of
what role colonialism might have in an international law that is considered postcolonial—postcolonial in the sense that formal colonialism had
ended by the time of its making. This case study of the CRC shows that
while the deep colonial structure transcends law made during colonial
times and transcends legal concepts originating in colonial times, the co196. M. Zafrulla Khan, Islam: Concept, Law and World Habeas Corpus (A Foreword),
1 RUTGERS-CAM L.J. 160, 160 (1969).
197. This position is more clearly stated in the 1990 Cairo Declaration of Human
Rights in Islam, which notes that all human rights law is subject to Islamic law. See U.N.
GAOR, 2d Sess., Agenda Item 11, U.N. Doc. A/CONF. 157/PC/35 (1992).
198. See Harris-Short, supra note 16, at 135–36.
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POSTCOLONIAL ANALYSIS OF THE CRC
31
lonial structure endures in the legislative process of international law,
underlying treaty-making procedure even when the treaty is facially neutral.
The CRC was drafted with the intention of avoiding some obvious
controversies such as abortion,199 freedom of religion,200 and the economic disparity between the Global North and the Global South.201 Despite
these efforts for consensus, many States made reservations.202 The States
that lodged these reservations are geographically diverse, and the provisions with which these reservations took issue are varied, thereby suggesting that the CRC embodies neutral, if not quite universal, values.203
In contrast, the objections against reservations share two striking features. All the objections were made by European countries, and the recipients are overwhelmingly non-European countries.204 Moreover, the
reservations that received the most objections are those challenging the
boundaries of international law by asserting alternatives to European interpretations, alternatives that refer to Shariah law or to national constitutions.205
It is difficult to deny the European sense of privilege when the only
States parties to object to reservations are European, and twenty-one of
the twenty-three parties against whom these objections were directed are
postcolonial States. Moreover, no States parties objected to European
reservations that are equally broad in scope, such as excluding a noncitizen child from the CRC or constraining a child’s right to exercise his or
her culture, reservations that seem to undercut the CRC’s express goal of
universal coverage. Similarly, States parties that hold jurisdiction outside
of their main territories stipulated in reservations that they retain the ability to decide whether the CRC applies to children living in these territories, and these reservations failed to generate any objections. A study of
representative postcolonial legislation reveals that even if it is possible to
legislate “neutral” international law, such law does not operate in a vacuum, but rather in an international community in which European na-
199. See CRC, supra note 7, art. 1 (defining a “child” as “every human being below
the age of eighteen years”).
200. Id. art. 14 (deliberately abstaining from using the word “adopt” with reference to
religion).
201. Id. art. 4 (suggesting that compliance with the CRC by poor countries may be
achieved through “the framework of international co-operation”).
202. See CRC Ratifications, Reservations, and Objections, supra note 8.
203. Id.
204. Id.
205. Id.
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tions continue to proceed as if they were entitled to a Eurocentric international law.
THE PRINCIPLE OF DEMOCRATIC
TELEOLOGY IN INTERNATIONAL LAW
Niels Petersen*
INTRODUCTION ...............................................................................35 I. THEORETICAL FRAMEWORK ........................................................36 A. Definition of Democracy .......................................................37 B. Theories of Democratization .................................................40 1. Cultural Prerequisites .........................................................40 2. Modernization Theory and its Modifications ....................42 3. Cultural and Ethnic Homogeneity......................................45 4. Conclusions ........................................................................47 II. DEMOCRATIC TELEOLOGY IN POSITIVE INTERNATIONAL LAW ...48 A. Self-Determination ................................................................49 1. Democracy as Mandatory Consequence of SelfDetermination ........................................................................50 2. Representation and Self-Determination .............................52 B. International Practice: Establishing Democratic
Teleology ....................................................................................54 1. International Institutions ....................................................55 (a) Right to Democratic Elections Under the ICCPR ........55 (b) Declarations of the U.N. General Assembly ................57 2. Regional Developments .....................................................61 (a) The Americas ................................................................61 (b) Europe ..........................................................................65 (c) Africa ............................................................................67 (d) Evaluation ....................................................................71 * Dr. iur. (Frankfurt). Senior Research Fellow at the Max Planck Institute for Research on Collective Goods, Bonn, Germany. This paper is an extract of my Ph.D. thesis.
I am very grateful to Armin von Bogdandy, Sergio Dellavalle, Thomas Franck, Matthias
Goldmann, Stefan Kadelbach, Benedict Kingsbury, Thomas Kleinlein, Mattias Kumm,
Ingo Venzke, Silja Vöneky, and Joseph Weiler, as well as the members of the J.S.D.
Forum of the New York University School of Law for valuable comments and stimulating discussions. Finally, I would like to thank Brian Cooper for his excellent linguistic
revision of this Article. Any remaining mistakes are, of course, my own.
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3. Democracy and the Use of Force .......................................72 (a) Unilateral Interventions in Grenada, Panama, and
Iraq.....................................................................................72 (b) Collective Interventions in Haiti and Sierra Leone .....75 4. Resume ...............................................................................81 CONCLUSION...................................................................................82 2008]
THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
35
INTRODUCTION
F
or a long time, democracy was a non-issue in international law. In
1986, the International Court of Justice declared:
However the regime in Nicaragua be defined, adherence by a State to
any particular doctrine does not constitute a violation of customary
international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social,
economic and cultural system of a State.1
This perspective changed dramatically in the 1990s following the end of
the ideological dichotomy of the Cold War. A new interventionist U.N.
Security Council and a large number of newly emerging democracies in
Latin America, Africa, and Asia led to a widespread euphoria about democracy. In response, Francis Fukuyama predicted the “end of history,”2
and legal scholars started discussing an emerging right to democratic
governance.3
The first major international document addressing this issue was the
Vienna Declaration of the World Conference on Human Rights (“Vienna
Declaration”), which recognized that “[d]emocracy, development and
respect for human rights and fundamental freedoms are interdependent
and mutually reinforcing.”4 The Vienna Declaration not only promotes
democracy as a form of government, but also emphasizes the beneficial
impact of democracy on development.5 This statement runs against the
traditional assumption of modernization theory6 that the stability of a
democracy depends on a State’s level of socio-economic development.7
It promotes democracy as a universal cure for poverty and assumes that
democracy can be established at almost any stage in the developmental
process and in any society.
1. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 123 (June 27).
2. FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN xii (1992).
3. See, e.g., Gregory H. Fox, The Right to Political Participation in International
Law, 17 YALE J. INT’L L. 539 (1992); Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT’L L. 46 (1992).
4. World Conference on Human Rights, June 14–25, 1993, Vienna Declaration and
Programme of Action, ¶ 8, U.N. Doc. A/CONF.157/23 (July 12, 1993) [hereinafter Vienna Declaration].
5. Id.
6. For an account of modernization theory, see infra Part I.B.2.
7. Adrian Leftwich, Governance, Democracy and Development in the Third World,
14 THIRD WORLD Q. 605, 605 (1993).
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The purpose of this Article is to examine these underlying assumptions
and to reconsider democratic entitlement theory in light of democratization theory in order to redefine the claim to democracy by making a more
modest proposal. Instead of finding evidence supporting the emergence
of an unequivocal right to democratic governance, the practices of regional bodies and treaty obligations suggest the existence of a principle
of democratic teleology, according to which States are obligated to develop towards democracy. Part I of the Article sets forth an analytical
framework that clarifies the definition of democracy and assesses the
principal approaches conceptualizing democratization processes. It will
show that there is much uncertainty within the social sciences on what
constitutes an ideal path to democracy. There is consensus that democracy cannot be introduced overnight, but is, rather, a complex and longterm process. Part II addresses approaches to democratic entitlement and
proposes a more differentiated approach that focuses on the process of
democratization rather than the existence of democratic governance. The
subsequent analysis will show that there is no right to democratic governance in international law. Instead, States have an obligation to develop
towards democracy.
I. THEORETICAL FRAMEWORK
Section A of this portion of the Article establishes a working definition
of democracy. After locating two intertwined aspects to the concept—a
binary classification and a gradation—this section argues that the definition of “democracy” should be grounded in the former and should be
minimalist: democracy can be said to exist when a government has been
chosen through periodic and contested elections. In contrast, the gradual
dimension of the concept takes into account normative components to
democracy. These two dimensions will be the basis for the analysis that
follows on democracy in international law.
Section B further develops the theoretical framework of this Article by
critically evaluating three major theories of democratization: cultural
prerequisites theory, modernization theory, and social homogeneity
theory. We will see that democratization is too multifaceted and complex
to be fully captured in any one theory. As various internal as well as external factors interdependently influence democratization, it is difficult to
predict precisely what facilitates transitions to democracy. Instead, democratization, as demonstrated in this Article, is a complex process,
which can take different forms and shapes.
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A. Definition of Democracy
Democracy is a contested concept. Although it seems to be “nonnegotiable” in the Western Hemisphere,8 there remains little consensus on
what “democracy” actually means.9 Scholars flesh out the term with different content. Some propose “thin” or “minimalist” models of democracy,10 while others advocate “thick” or demanding conceptions.11 The
search for a definition of democracy is complicated by the fact that there
is disagreement on whether democracy is a question of kind or one of
degree.12 The former interpretation is a simple binary one—a political
system is either a democracy or not. The latter, in contrast, is gradual—
democracy is a question of degree. Both conceptions, however, are complementary and not mutually exclusive. Conceiving democracy in a gradual
way presupposes that an anterior classification has been made because it
would deprive the concept of every heuristic value to qualify authoritarian or totalitarian regimes as democratic to a certain degree.13 Once a
binary classification has been made, it may be valuable to distinguish different types of democracy on a gradual scale, as long as democracy is not
solely perceived to be an ideal concept. The notion of democracy, thus,
has two dimensions: a binary classification, which differentiates between
democracies and nondemocracies, and a graduation, which distinguishes
between democracies of different quality.
Regarding the binary approach, there are two ways to address the issue
of defining democracy. On the one hand, one can look at whether relevant sources either explicitly or implicitly provide a definition. On the
other hand, one can establish a proper definition of democracy and analyze whether such a concept exists in international law, notwithstanding
whether it is actually called democracy. Although, at first glance, the first
approach seems to be appealing, its application is deceptive. The term
8. IAN SHAPIRO, THE STATE OF DEMOCRATIC THEORY 1 (2003).
9. LAURENCE WHITEHEAD, DEMOCRATIZATION: THEORY AND EXPERIENCE 14 (2002).
10. See, e.g., Adam Przeworski, Minimalist Conception of Democracy: A Defense, in
DEMOCRACY’S VALUE 23, 23 (Ian Shapiro & Casiano Hacker-Cordón eds., 1999).
11. See Susan Marks, Human Rights, Democracy and Ideology, in 8 COLLECTED
COURSES OF THE ACADEMY OF EUROPEAN LAW, BOOK 2: THE PROTECTION OF HUMAN
RIGHTS IN EUROPE 51 (Acad. of Eur. Law ed., 1997).
12. GIOVANNI SARTORI, THE THEORY OF DEMOCRACY REVISITED 184 (1987).
13. Id. at 184–85. See also Armin von Bogdandy, Demokratisch, demokratischer, am
demokratischsten? Zur Steigerungsfähigkeit eines Verfassungsprinzips am Beispiel einer
Neugestaltung der Verordnungsgebung [Democratic, More Democratic, the Most Democratic? On the Gradual Character of a Constitutional Principle Based on the Example of
a Reform of Executive Regulations], in VERFASSUNG—PHILOSOPHIE—KIRCHE. FESTSCHRIFT FÜR ALEXANDER HOLLERBACH ZUM 70. GEBURTSTAG 364, 367 (Joachim Bohnert
et al. eds., 2001) (F.R.G.).
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“democracy” is used very rarely in international legal documents—
perhaps precisely because of its vagueness. Where it can be found, its
meaning is unspecified.14 The aforementioned Vienna Declaration15 and
the U.N. Secretary General’s Agenda for Peace, for example,16 only allude to democracy’s positive effects on human rights, development, and
peace. International human rights instruments reference notions of democratic society in savings clauses, yet fail to elucidate the meaning of the
word.17
There is one prominent exception, however. In 2000, the U.N. General
Assembly adopted a resolution entitled “Promoting and Consolidating
Democracy.”18 According to the resolution, democracy consists of a
number of different elements: the promotion of pluralism, the protection
of human rights, a separation of powers, the rule of law, elections, the
development of civil society, good governance, sustainable development,
solidarity, and social cohesion.19 Nonetheless, this appears to be more of
a wish list than an attempt to propose a coherent definition of democracy.
It mingles substantive and procedural issues without saying anything
about their interrelation. In addition, the resolution fails to distinguish
between the institutional framework of government and certain programmatic issues, such as sustainable development or social cohesion.20
Turning to political science literature, several definitions of democracy
can be found. Some are minimalist, focusing primarily on elections,21
while others incorporate additional elements, for example, the rule of
14. But cf. STEVEN WHEATLEY, DEMOCRACY, MINORITIES AND INTERNATIONAL LAW
128–34 (2005) (noting that democracy is defined by international legal documents as a
political system in which power is based on the will of the people). However, the concept
of the will of the people is as abstract as the concept of democracy, making Wheatley’s
definition just as unspecific.
15. Vienna Declaration, supra note 4.
16. The Secretary-General, Report of the Secretary-General on an Agenda for Peace,
Preventive Diplomacy, Peacemaking and Peace-keeping, U.N. Doc. S/24111, A/47/277
(June 17, 1992).
17. See American Convention on Human Rights: “Pact of San José, Costa Rica” arts.
15, 16(2), 22(3), 32(2), Nov. 22, 1969, 1144 U.N.T.S. 144 [hereinafter American Convention]; International Covenant on Civil and Political Rights arts. 14(1), 21, 22(2), Dec.
19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; Convention for the Protection of Human Rights and Fundamental Freedoms arts. 6(1), 8(2), 9(2), 10(2), 11(2), Nov. 4, 1950,
213 U.N.T.S. 222.
18. G.A. Res. 55/96, U.N. Doc. A/RES/55/96 (Dec. 4, 2000).
19. Id.
20. See SARTORI, supra note 12, at 90 (explaining this distinction).
21. Przeworski, supra note 10.
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THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
39
law,22 the preservation of civil and political rights,23 minority protection,24 or the existence of social rights.25 Defining democracy is such a
difficult task because the debates on what democracy is and what democracy should be are often intermingled.26 As its definition is highly contested and malleable at its borders,27 this analysis will concentrate on the
core of democracy: the legitimation of public power through elections. A
political system may be deemed a democracy when its government is
designated through periodic and contested elections.28 Elections are contested when their outcomes are uncertain ex ante and irreversible ex
post.29
This definition is meant to be purely descriptive, not normative. It does
not ignore that there are good reasons for more demanding concepts of
democracy. However, because the implementation of the rule of law or
the protection of human rights, for example, are separate institutions,
distinguishable from the establishment of democracy, they should be
subject to independent analyses.30 It is possible to imagine an autocratic
regime observing the rule of law or complying with human rights obligations. An autocracy in which the government is appointed through contested elections, however, is a contradictio in adjecto.
As previously mentioned, democracy also has a second, qualitative
dimension. Recently, Susan Marks cautioned against adopting a minimalist concept of democracy in international law.31 If States have
22. See, e.g., Armin von Bogdandy, Globalization and Europe: How to Square Democracy, Globalization, and International Law, 15 EUR. J. INT’L L. 885, 889–90 (2004).
23. ROBERT ALAN DAHL, POLYARCHY: PARTICIPATION AND OPPOSITION 3 (1971) (including freedom of expression, information, and association, as well as an inclusive status
of citizenship in his definition of democracy).
24. Steven Wheatley, Democracy in International Law: A European Perspective, 51
INT’L & COMP. L.Q. 225, 247 (2002).
25. See generally DAVID BEETHAM, DEMOCRACY AND HUMAN RIGHTS (1999) (advocating a democracy theory based on social rights).
26. In particular, theorists proposing a “thick” concept of democracy often take an
idealist position, allowing their vision of an ideal political system to influence their definition of democracy.
27. WHITEHEAD, supra note 9, at 15.
28. See ADAM PRZEWORSKI ET AL., DEMOCRACY AND DEVELOPMENT: POLITICAL
INSTITUTIONS AND WELL-BEING IN THE WORLD, 1950–1990 at 14–18 (2000) (proposing
this definition).
29. Id. at 16.
30. Manfred G. Schmidt, Ist die Demokratie wirklich die beste Staatsverfassung? [Is
Democracy Really the Best Form of Government?], 28 ÖSTERREICHISCHE ZEITSCHRIFT
FÜR POLITIKWISSENSCHAFT 187, 191–92 (1999) (Austria).
31. Susan Marks, The “Emerging Norm”: Conceptualizing “Democratic Governance,”
91 AM. SOC’Y INT’L L. PROC. 372, 373 (1997); Marks, supra note 11, at 78–88.
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reached a certain minimum threshold, they would become immune from
further critique, which is an undesirable consequence, given the tendency
in international relations to idealize democracy.32 Marks, therefore, proposes
a gradual definition of democracy.33 Nevertheless gradual conceptualizations are not a substitute for classificatory ones. Instead of incorporating
normative concerns into the definition of democracy itself, this Article
addresses this critique by including a gradual dimension in the concept of
democracy, supplementing the proposed binary definition, which centers
upon the role of elections.
B. Theories of Democratization
The transition from an authoritarian regime to a democratic system is
not simply a shift in political status, but a social process influenced by
various external factors. When the debate on democratization started in
the late 1950s, it addressed the issue by analyzing the “prerequisites of
democracy.”34 In its strict sense, the term suggests that democracy has
certain requirements, without which democracy is unable to function.
Still today, there are authors who promote such a strict approach and argue
that certain cultural environments are hostile to democracy. The majority
of scholars, however, pursue a more moderate approach. They try to
identify socio-economic factors that may be favorable to the establishment of democracy. The earliest and most influential school is that of
modernization theory, which seeks to establish a correlation between
economic development and democracy. Other scholars inquire into the
relationship between ethnic, social, or religious homogeneity and the
prospects for democracy.
1. Cultural Prerequisites
The theory of cultural prerequisites argues that the establishment of
democracy depends on the cultural environment of a State. Samuel Huntington, the most prominent proponent of this theory, divides the world
into eight major civilizations: Japanese, Latin American, Western, African, Buddhist, Orthodox, Confucian, and Islamic.35 Among these, only
the first three cultures are regarded as favorable for democracy. Confu-
32. Marks, supra note 11, at 81–82.
33. Id. at 87.
34. See Seymour Martin Lipset, Some Social Requisites of Democracy: Economic
Development and Political Legitimacy, 53 AM. POL. SC. REV. 69 (1959) [hereinafter Lipset, Some Social Requisites].
35. Samuel P. Huntington, The Clash of Civilizations?, 72 FOREIGN AFF. 22, 25–26
(1993).
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THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
41
cian and Islamic civilizations are seen as hostile to democracy, while the
remaining three are viewed as neutral.36 There is some empirical evidence supporting Huntington’s thesis,37 but his argument is unconvincing.
Experience shows that Confucianism and Islam are not per se inimical to
democracy.38 Although a lack of separation between belief systems and
politics may present an obstacle to the establishment of a democratic society, such fluidity is not particular to Confucianism or Islam, but rather
an expression of socio-economic progression.39 Religious or cultural patterns are subject to change during the course of social development.40 An
example in this respect is the development of Catholic societies. Although
Catholicism was regarded as a major obstacle to democratization a few
decades ago,41 many states with predominantly Catholic populations have
since developed into stable democracies. Therefore, religion or culture is
not an absolute impediment to, but at most a surmountable difficulty in,
the process of democratization.
However, the question of the cultural prerequisites of democracy is not
purely empirical. It also has a normative dimension. If the preconditions
for democratization are established in a certain society, these necessarily
36. SAMUEL P. HUNTINGTON, THE THIRD WAVE: DEMOCRATIZATION IN THE LATE
TWENTIETH CENTURY 300 (1991).
37. According to the IMF, Brunei Darussalam, Hong Kong, Kuwait, Qatar, Singapore, and the United Arab Emirates are among the thirty most developed States based on
their per capita incomes of more than 20,000 USD. These States, which could be classified under Huntington’s political and cultural taxonomy as Confucian or Islamic, do not
qualify as electoral democracies according to Freedom House’s Annual Global Survey of
Political Rights and Civil Liberties. Compare INT’L MONETARY FUND, WORLD ECONOMIC
OUTLOOK DATABASE (Apr. 2007), http://www.imf.org/external/pubs/ft/weo/2007/01/data/
index.aspx (providing GDP data for 2004), with FREEDOM HOUSE, SELECTED DATA FROM
FREEDOM HOUSE’S ANNUAL GLOBAL SURVEY OF POLITICAL RIGHTS AND CIVIL LIBERTIES
(2007), http://www.freedomhouse.org/uploads/press_release/fiw07_charts.pdf.
38. Japan, South Korea, and Taiwan, as well as Indonesia can be considered electoral
democracies. The first three countries are influenced by Confucianism, while Indonesia is
home to the largest Muslim population in the world.
39. Pippa Norris & Ronald Inglehart, Islamic Culture and Democracy: Testing the
“Clash of Civilizations” Thesis, 1 COMP. SOC. 235, 239–41 (2002).
40. WOLFGANG MERKEL & HANS-JÜRGEN PUHLE, VON DER DIKTATUR ZUR DEMOKRATIE: TRANSFORMATIONEN, ERFOLGSBEDINGUNGEN, ENTWICKLUNGSPFADE [FROM DICTATORSHIP TO DEMOCRACY: TRANSFORMATIONS, CONDITIONS FOR SUCCESS, TRAJECTORIES]
40 (1999) (F.R.G.); Seymour Martin Lipset, The Social Prerequisites of Democracy Revisited, 59 AM. SOC. REV. 1, 7 (1994) [hereinafter Lipset, Democracy Revisited].
41. Cf., e.g., Kenneth A. Bollen, Political Democracy and the Timing of Development, 44 AM. SOC’Y REV. 572, 584 (1979) (noting support for the view that “the greater
the extent to which a culture is Protestant-based, the greater the level of political democracy”); Pierre Elliott Trudeau, Some Obstacles to Democracy in Quebec, in CANADIAN
DUALISM 241, 245 (Mason Wade & Jean-C. Falardeau eds., 1960).
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lead to cultural changes. From a normative perspective, this raises some
problems. In the 1990s, some Asian governmental leaders, such as Malaysia’s former Prime Minister, Mahathir bin Mohamed, and Singapore’s
former Head of State, Lee Kuan Yew, engaged in a debate on Asian values. They argued that Western democracy should not be imposed on
Asian societies because it conflicts with certain Asian traditions. While
Western democracy is a system of rights, according to these leaders,
Asian societies perceive political communities to be embedded in a system of obligations and emphasize community-oriented values.42
Significant weight, however, should not be afforded to the assertion
that cultural values exempt a State from pursuing democracy. Politicians
may be strategically seeking to preserve the status quo from which they
benefit. Moreover, making appeals to culture-based exceptions assumes
an authority to define a given set of values.43 Furthermore, cultural relativism fails to answer the question of who determines the composition of
the group whose cultural tradition shall be relevant. It is not imperative
to take the collectivity of citizens as the point of reference because a
population can be very heterogeneous.44 If the argument referring to
Asian values is not of a purely strategical nature, its main purpose is to
reinforce collective values.45 As long as we understand democracy as a
procedural framework, though, the concept has sufficient flexibility to
realize a wide range of different value systems. Consequently, cultural
diversity does not per se discredit the universal promotion of democratic
rules.
2. Modernization Theory and its Modifications
Modernization theory attempts to establish a relationship between the
development of a State and its degree of democratization.46 In 1959,
Martin Seymour Lipset made the groundbreaking claim that “the more
well-to-do a nation, the greater the chances that it will sustain democra-
42. Diane Mauzy, The Human Rights and “Asian Values” Debate in Southeast Asia:
Trying to Clarify the Key Issues, 10 PAC. REV. 210, 215 (1997).
43. WOLFGANG MERKEL, DEMOKRATIE IN ASIEN. EIN KONTINENT ZWISCHEN DIKTATUR
UND DEMOKRATIE [DEMOCRACY IN ASIA. A CONTINENT BETWEEN DICTATORSHIP AND
DEMOCRACY] 91 (2003) (F.R.G.).
44. Ronald Dworkin, Liberal Community, 77 CAL. L. REV. 479, 488–89 (1989).
45. Jürgen Habermas, Remarks on Legitimation Through Human Rights, in THE
POSTNATIONAL CONSTELLATION: POLITICAL ESSAYS, 113, 124–25 (Max Pensky ed. &
trans., Blackwell Publishers Ltd. 2001).
46. See Larry Diamond, Economic Development and Democracy Reconsidered, in
REEXAMINING DEMOCRACY: ESSAYS IN HONOR OF SEYMOUR MARTIN LIPSET 93, 93 (Gary
Marks & Larry Diamond eds., 1992); Lipset, Some Social Requisites, supra note 34.
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THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
43
cy.”47 Lipset argued that economic development leads to higher levels of
urbanization48 and education,49 and to the establishment of a middle class
with increased socio-economic mobility. This mobility deprives the underclass of its revolutionary potential and thus supports the stability of a
democratic system.50 Political elites are also less likely to be disadvantaged during periods of governmental change because the relative effect
of a policy change is stronger in poorer countries. 51
Since the publication of Lipset’s theory, several empirical studies have
confirmed a correlation between economic development and democratization, showing that higher economic prosperity increases the probability
that a State will have a stable democratic system.52 However, there is no
causal relationship between both factors.53 Economic development is
neither a necessary nor a sufficient precondition for democracy. There
are important examples that disprove a determinist relationship. India,
for example, has been a relatively stable democracy for several decades
notwithstanding its per capita GDP, which has remained below 1000
USD.54 In contrast, several Arab States with higher per capita incomes
have yet to develop democratic structures. Furthermore, data suggests
that economic development is not the principle cause for transitions to
democracy. Economic prosperity merely stabilizes democratic institutions once they have developed.55 Poor democracies also face a high
probability of collapsing; only after reaching a certain stage of development are democracies sufficiently stable to survive economic crises.56
However, economic development is not the only factor that influences
the democratization process. All political systems have informal rules and
47. Lipset, Some Social Requisites, supra note 34, at 75.
48. Id. at 78.
49. Id. at 78–82; Seymour Martin Lipset, et al., A Comparative Analysis of the Social
Requisites of Democracy, 45 INT’L SOC. SCI. J. 155, 167 (1993).
50. Lipset, Some Social Requisites, supra note 34, at 83.
51. Id. at 84.
52. PHILIP COULTER, SOCIAL MOBILIZATION AND LIBERAL DEMOCRACY (1975); Kenneth A. Bollen & Robert W. Jackman, Economic and Noneconomic Determinants of
Political Democracy in the 1960s, 1 RES. POL. SOC. 27, 42 (1985); Diamond, supra note
46, at 93–96; Lipset, et al., supra note 49.
53. MANFRED G. SCHMIDT, DEMOKRATIETHEORIEN [DEMOCRACY THEORIES] 441
(2000) (F.R.G.); MERKEL & PUHLE, supra note 40, at 33; Bruce J. Bueno de Mesquita &
George W. Downs, Development and Democracy, 84 FOREIGN AFF. 77 (2005) (noting
that China’s tremendous economic growth has not yielded democratic development).
54. See INT’L MONETARY FUND, supra note 37.
55. Adam Przeworski & Fernando Limongi, Modernization: Theories and Facts, 49
WORLD POL. 155, 166 (1997).
56. Id. at 169–70.
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arrangements that support political processes.57 While such mechanisms
may ideally complement formal constitutional institutions and increase
their flexibility, informal networks can be used to pervert democratic
rules if the democratic system is unstable or defective.58 This involves
political actors strengthening their power by relying on exclusive networks outside of constitutional institutions. Such defective democracies
are thus likely to breakdown in social or economic crises or to transform
into open autocracies.
How do defective democracies differ from functional ones? Tatu Vanhanen suggests a rational approach, positing a relationship between the
degree of democratization and the degree to which social power resources are distributed.59 If power resources are widely dispersed, it is
difficult for a specific group within a society to oppress other social
groups by establishing and maintaining hegemonic structures.60 The degree of distribution is related to other socio-economic factors, including
economic development and level of education.61 Vanhanen’s approach
thus supplements rather than modifies modernization theory.
Charles Tilly offers another decisive factor, state institutional capacity.62 According to Tilly, strong civil and political institutions increase the
prospects for a successful democratization process, as these institutions
can offset one of the most significant obstacles to this process, “autonomous power centers.”63 Of course, there are limits: if a State is too
strong, political actors have incentives to claim exclusive power and undermine democratization. Thus, informal “trust networks” have to be
integrated into the public political space.64 While power dispersion continues to serve an important function, it must take place within state institutions, rather than in opposition to them.
57. CHARLES TILLY, DEMOCRACY 88 (2007) (analysing how the establishment of trust
networks facilitates democratic development); Wolfgang Merkel & Aurel Croissant,
Formale und informale Institutionen in defekten Demokratien [Formal and Informal
Institutions in Defective Democracies], 41 POLITISCHE VIERTELJAHRESSCHRIFT 3, 16
(2000) (F.R.G.).
58. WOLFGANG MERKEL ET AL., DEFEKTE DEMOKRATIE [DEFECTIVE DEMOCRACY] 28
(2003) (F.R.G.).
59. TATU VANHANEN, PROSPECTS OF DEMOCRACY 5 (1997); Tatu Vanhanen, Social Constraints of Democratization, in STRATEGIES OF DEMOCRATIZATION 19, 21 (Tatu Vanhanen
ed., 1992).
60. VANHANEN, supra note 59, at 5.
61. Vanhanen, supra note 59, at 21.
62. TILLY, supra note 57, at 161–85.
63. Id. at 164.
64. Id. at 80–105.
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THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
45
Turning to cultural scholarship, commentators have argued that democratization depends on citizens and political elites internalizing similar
understandings of democratic values.65 Certainly, democratic values are
not embraced over night. These values must be learned, accumulated,
and assimilated as social capital.66 Forming them requires education and
experience with democratic institutions.67 Furthermore, socio-economic
change may lead to a transformation of political values.68
In summary, the following conclusions can be drawn. First, the functioning and stability of democracy depend on several interdependent factors:
socio-economic development, the diffusion of power resources, stable
civil and political institutions, and a democratic culture. Accordingly,
democratization rarely takes place abruptly: it is usually a gradual
process.69
3. Cultural and Ethnic Homogeneity
The debate on cultural, religious, and ethnic homogeneity as a precondition for a stable democracy dates back to John Stuart Mill, according to
whom:
Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellow-feeling, especially if
they read and speak different languages, the united public opinion necessary to the working of representative government cannot exist.70
As belonging to a particular cultural, religious, or ethnic group heavily
influences identity, in many pluralistic societies, voting often follows
65. GABRIEL ABRAHAM ALMOND & SIDNEY VERBA, THE CIVIC CULTURE: POLITICAL
ATTITUDES AND DEMOCRACY IN FIVE NATIONS 498 (1963); Larry Diamond & Juan José
Linz, Introduction: Politics, Society, and Democracy in Latin America, in 4 DEMOCRACY
IN DEVELOPING COUNTRIES: LATIN AMERICA 1, 10 (Larry Diamond et al. eds., 1989).
66. ROBERT D. PUTNAM ET AL., MAKING DEMOCRACY WORK: CIVIC TRADITIONS IN
MODERN ITALY 99–116 (1993) (tracing the history of civil communities in Italy).
67. ALMOND & VERBA, supra note 65, at 501. In this context, it is interesting to note
that former British colonies had far more success with the installation of democracy than
the former colonies of other European nations. See also Lipset, Democracy Revisited,
supra note 40, at 5 (comparing the practice of the British with that of other colonial powers in introducing certain democratic institutions in their colonies). See Bollen & Jackman,
supra note 52; Myron Weiner, Empirical Democratic Theory, in COMPETITIVE ELECTIONS
IN DEVELOPING COUNTRIES 3, 19 (Myron Weiner & Ergun Özbudun eds., 1987).
68. Diamond & Linz, supra note 65, at 12.
69. Lipset, Democracy Revisited, supra note 40, at 4.
70. JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 310
(photo. reprint 1991) (1861).
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social affiliations.71 It is thus barely surprising that empirical studies suggest that the probability of establishing democracy in homogeneous societies is twice as high as in segmented societies.72
Scholars have proposed various remedies to overcome problems associated with diverse societies. The most widely recognized proposal is
Arend Lijphart’s model of consociational democracy.73 Lijphart seeks to
describe a system in which every major social group is represented, identifying four fundamental characteristics: government created by “grand
coalition”; mutual veto rights to protect minority interests; proportional
representation in politics and civil service, as well as proportional distribution of public funds; and a federal structure that gives each social
group significant autonomy.74
However, consociationalism implicitly assumes that human identity is
unalterable. Identity is not an inherent characteristic of human beings,
but a social construct.75 Although identity is not infinitely alterable, it can
change with time and circumstance.76 Research in social psychology also
shows that the interaction among different social groups can enhance the
possibility of forming a common superordinate identity.77 Consociationalist models thus run the risk of deepening rather than overcoming divisions
in society. This does not mean, though, that democracy is impossible in
pluralistic societies. One solution is to put in place voting procedures that
discourage incentives to vote according to cultural, religious, or ethnic
cleavages.78
71. Dirk Berg-Schlosser, Empirische Voraussetzungen und allgemeine Konstituierungsbedingungen von Demokratie [Empirical Premises and Necessary Conditions of
Democracy], in PERSPEKTIVEN DER DEMOKRATIE: PROBLEME UND CHANCEN IM ZEITALTER
DER GLOBALISIERUNG 57, 57 (Dirk Berg-Schlosser & Hans-Joachim Giegel eds., 1999)
(F.R.G.).
72. Adrian Karatnycki, The Decline of Illiberal Democracy, 10 J. DEM. 112, 117
(1999).
73. AREND LIJPHART, DEMOCRACIES: PATTERNS OF MAJORITARIAN AND CONSENSUS
GOVERNMENT IN TWENTY-ONE COUNTRIES 21–36 (1984); AREND LIJPHART, DEMOCRACY
IN PLURAL SOCIETIES: A COMPARATIVE EXPLORATION (2d ed. 1980) [hereinafter
LIJPHART, DEMOCRACY IN PLURAL SOCIETIES].
74. LIJPHART, DEMOCRACY IN PLURAL SOCIETIES, supra note 73, at 25.
75. DONALD L. HOROWITZ, ETHNIC GROUPS IN CONFLICT 684 (1985).
76. SHAPIRO, supra note 8, at 95.
77. Samuel L. Gaertner et al., The Common Ingroup Identity Model: Recategorization
and the Reduction of Intergroup Bias, 4 EUR. REV. SOCIAL PSYCHOL. 1, 2–3 (1993).
78. See HOROWITZ, supra note 75, at 628–52 (offering proposals for overcoming
political divides along ethnic lines, including mechanisms whereby parties must obtain a
certain minimum number of votes from more than one social group in order to be
elected).
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Nevertheless, attempts to unify through incentive-based voting mechanisms carry certain risks. Without a consensus on the fundamental
rules of the political game, they cannot surmount social divisions.79 The
remedy in these circumstances is to promote socio-economic development. States with highly segmented societies often have weak institutional structures.80 Thus, formal institutions have to be strengthened, and
trust in these institutions must be developed, while a common identity is
concurrently established. Consequently, in the ideal case, nation- and
capacity-building precede the transition to democracy.81
4. Conclusions
The different theories explaining democratization present a complex
picture. The approaches are not mutually exclusive, but rather highlight
different aspects of the process of democratization. Transition to and
consolidation of democracy are dependent on a variety of factors, defying monocausal explanations.82 Therefore, democracy has no necessary
or sufficient prerequisites, meaning that neither low levels of economic
development nor significant cultural, religious, or ethnic heterogeneity
preclude the establishment of a relatively stable democracy.83 Conversely, significant economic prosperity or social homogeneity do not lead to
an automatic transition to democracy.
Despite the lack of causal explanations, there still remain significant
correlations between economic development and social cohesion, and
democratization. Low economic development or weak social homogeneity
can endanger the consolidation of democracy. These obstacles are malleable,84 but they are subject to long-term processes that are not necessarily
steady.85 As a result, sometimes it may be more effective to compromise
short-term successes in order to pursue long-term goals.86 Furthermore,
in certain circumstances, it may be advisable to engage in nation- and
79. Andrew Reynolds, Constitutional Medicine, 16 J. DEM. 54, 57 (2005).
80. TILLY, supra note 57, at 176–77.
81. Philippe C. Schmitter & Javier Santiso, Three Temporal Dimensions to the Consolidation of Democracy, 19 INT’L POL. SCI. REV. 69, 81 (1998).
82. MERKEL & PUHLE, supra note 40, 62; SHAPIRO, supra note 8, at 80.
83. MAMOUDOU GAZIBO, LES PARADOXES DE LA DÉMOCRATISATION EN AFRIQUE [THE
PARADOXES OF DEMOCRATIZATION IN AFRICA] 228 (2005) (Fr.).
84. Juan José Linz & Alfred Stephan, Toward Consolidated Democracies, 7.2 J. DEM.
14, 23 (1996).
85. RALF DAHRENDORF, REFLECTIONS ON THE REVOLUTION IN EUROPE 99–100 (2005);
Schmitter & Santiso, supra note 81, at 82–84.
86. Javier Santiso, A la recherche des temporalités de la democratization [In Search
of the Temporalities of Democratization] 44 REVUE FRANÇAISE DE SCIENCE POLITIQUE
1079, 1082 (1994) (Fr.).
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identity-building before fostering the establishment of institutions. Because there is no universally valid formula for success, many political
scientists stress the unpredictable character of democratization, describing it as a “complex, long-term, dynamic and open-ended process.”87
Although elections are typically a step in the overall process, they are
not necessarily the first step.88 Democratization is thus a teleological
process,89 and its final objective is the establishment of a legitimate form
of government. This process, though, does not necessarily have to be
democratic itself.90
II. DEMOCRATIC TELEOLOGY IN POSITIVE INTERNATIONAL LAW
Given the process-like character of democratization, Part II of this
Article examines how this understanding of democracy is reflected in
positive international law, while paying particular attention to how our
working definition of democracy, which centers upon the role of elections, is represented in institutional and regional practice. Towards this
end, this section critically reviews two approaches to identifying customary norms: deductive and inductive. The first relies on an interpretative
methodology in identifying customary norms.91 According to this approach, some scholars try to deduce customary norms from more abstract
principles. Based on the assumption that the legal system is holistic and
without internal contradictions, a rule must be considered customary law
if it follows necessarily from a more general principle that has already
been accepted.92 Section A considers the attempts of some scholars to
employ this interpretative approach in order to deduce a right to democratic governance from the principle of self-determination.
87. WHITEHEAD, supra note 9, at 27.
88. Marks, supra note 11, at 87.
89. Andreas Schedler, What is Democratic Consolidation?, 9 J. DEM. 91, 95 (1998).
When Whitehead emphasizes the open-endedness of the process, he does not want to
contest the teleological character of democratization. See WHITEHEAD, supra note 9, at 28
(observing that democracy is a concept that is, to a certain extent, indeterminate and can
be implemented in a variety of different ways).
90. See Schmitter & Santiso, supra note 81, at 79 (discussing the undemocratic nature
of many democratization processes).
91. See Bruno Simma & Philip Alston, The Sources of Human Rights Law: Custom,
Jus Cogens, and General Principles, 12 AUST. Y.B. INT’L L. 82 (1992) (showcasing the
development towards more interpretative methods in identifying customary international
law).
92. Albert Bleckmann, Völkergewohnheitsrecht trotz widersprüchlicher Praxis?
[Customary International Law Despite Contrary Practice?] 36 HEIDELBERG J. INT’L L.
374, 390 (1976) (F.R.G.); Christian Tomuschat, Obligations Arising for States Without or
Against Their Will, 241 RECUEIL DES COURS 195, 293–300 (1993).
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According to the inductive approach, customary norms are identified
by inducing them from state practice and opinio juris.93 In Section B, we
will thus analyze the relevant international practice on democracy, such
as different U.N. resolutions, regional mechanisms designed to preserve
democracy, and the reactions of the international community to coups
against elected regimes. This analysis will show that international law
does not contain a right to democratic governance. Instead, it will identify a principle of democratic teleology, that is, States are legally obliged
to develop towards democracy.
A. Self-Determination
Scholars have used the deductive approach in an attempt to derive a right
to democratic governance from the principle of self-determination.94 There
are two strands to this argument, one contextual and the other logical.
This Section argues that both fall short. Although there is a textual relationship between democracy and self-determination within the International Covenant on Civil and Political Rights (“ICCPR” or “Covenant”),
it does not translate into a customary principle of self-determination. The
logical argument fails because it does not take into account the difference
between establishing a political system and the content of the political
system itself. Instead, this Section proposes that self-determination only
requires a government to be representative, not democratic.
93. See Statute of the International Court of Justice art. 38(1)(b), June 26, 1945, 59
Stat. 1055, 33 U.N.T.S. 933.
94. See, e.g., ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL
REAPPRAISAL 311 (1995); Antonio Cassese, The Self-Determination of Peoples, in THE
INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 92, 97
(Louis Henkin ed., 1981); Juan Francisco Escudero Espinosa, Hacia una Intervención
Armada en Favor de la Democracia?: El “Precedente” de Haití [Towards Armed Intervention in Favor of Democracy?: The “Precedent” of Haiti], 12 ANUARIO DE DERECHO
INTERNACIONAL 297, 344–56 (1996); Allan Rosas, Internal Self-Determination, in MODERN
LAW OF SELF-DETERMINATION 225, 241–46 (Christian Tomuschat ed., 1993); LinosAlexandre Sicilianos, Les Nations Unies et la démocratisation de l’Etat: Nouvelles tendances, [The United Nations and the Democratization of the State: New Trends], in LA
CONTRIBUTION DES NATIONS UNIES À LA DÉMOCRATISATION DE L’ETAT 13, 24 (Rostane
Mehdi ed., 2002); Patrick Thornberry, The Democratic or Internal Aspect of SelfDetermination with Some Remarks on Federalism, in MODERN LAW OF SELF-DETERMINATION,
supra, at 101, 134–37; Daniel Thürer, Self-Determination, in 4 ENCYCLOPEDIA OF PUB.
INT’L L. 364, 372 (Rudolf Bernhardt ed., 2000).
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1. Democracy as Mandatory Consequence of Self-Determination
Originally, self-determination had a primarily external direction, its
strongest impact occurring in the context of decolonization.95 However,
through its incorporation into Common Article 1 of the ICCPR and the
International Covenant on Economic, Social and Cultural Rights,96 it also
gained an internal dimension.97 According to this provision, the principle
of self-determination grants every people, inter alia, the right to determine
their political status freely. The U.N. General Assembly soon after affirmed this interpretation in its Declaration on Principles of International
Law Concerning Friendly Relations (“Friendly Relations Declaration”).98
Two main arguments attempt to deduce a democratic principle from
the right to self-determination. The first argument is contextual and interprets Article 1 of the ICCPR99 in the context of the Covenant’s other
provisions, in particular in conjunction with the right to democratic elections, as prescribed in Article 25.100 According to this argument, the right
to participate in elections informs how the right to determine political
status is exercised.101 However, it seems more convincing to interpret
Articles 1 and 25 in a way that affords them independent normative
95. James Crawford, The Rights of Peoples: “Peoples” or “Governments”?, in THE
RIGHT OF PEOPLES 55, 58 (James, Crawford ed., 1988).
96. ICCPR, supra note 17, art. 1; International Covenant on Economic, Social and
Cultural Rights art. 1, Dec. 16, 1966, 993 U.N.T.S. 3.
97. Cassese, supra note, at 94; Christoph Gusy, Selbstbestimmung im Wandel. Von der
Selbstbestimmung durch den Staat zur Selbstbestimmung im Staat [Self-Determination in
Flux. From Self-Determination Through the State to Self-Determination in the State], 30
ARCHIV DES VÖLKERRECHTS 385, 405 (1992) (F.R.G.).
98. 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/2625 (Oct. 24, 1970) [hereinafter Friendly Relations
Declaration].
99. See ICCPR, supra note 17, art. 25.
100. Id.
101. Cassese, supra note at 94; Christian Hillgruber & Bernhard Kempen, Das
Selbstbestimmungsrecht des deutschen Volkes und der Teso-Beschluß des Bundesverfassungsgerichts [The German People’s Right to Self-Determination and Teso-Decision of
the Federal Constitutional Court], 33 RECHT IN OST UND WEST 323, 325–26 (1989)
(F.R.G.); Alexandre-Charles Kiss, The Peoples’ Right to Self-Determination, 7 HUM.
RTS. L.J. 165, 171 (1986); Rosas, supra note 94, at 244; Hans A. Stöcker, Europäische
Menschenrechtskonvention, Ordre-Public-Vorbehalt und nationales Selbstbestimmungsrecht
[The European Convention on Human Rights, the Public Order Exception and the National Right to Self-Determination], 14 EUROPÄISCHE GRUNDRECHTE ZEITSCHRIFT 473,
477 (1987) (F.R.G.); Thornberry, supra note 94, at 134–37; Thürer, supra note 94, at
372.
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scope.102 If the guarantees of self-determination, as shaped by Article 25
of the ICCPR, do not exceed the right to democratic elections, then the
linkage is unnecessary. In order to ensure elections, Article 25 offers a
sufficient normative basis. If one wants to draw further conclusions, a
mere connection between and abstraction from essentially independent
principles is not enough. If we interpret, for instance, the customary principle of self-determination outside the ICCPR’s framework and in light
of Article 25, then the scope of the electoral guarantee would extend impermissibly beyond the limits of the Covenant.
The second argument is more fundamental. Instead of focusing on the
normative context, it seeks to establish a logical relationship between
self-determination and democracy. The right to choose a political system
belongs to the people, not their government. It has been argued that this
decision must be effectuated through democratic mechanisms, as nondemocratic means are not attributable to a people.103 However, this “logical”
relationship is based on a problematic premise.104 It fails to distinguish
between the act of creating a political system, and the actual content and
structure of government, namely, the pouvoir constituant and the pouvoir
constitué.105 The right to self-determination involves the former, but not
necessarily the latter. History provides several examples where citizens
opted through electoral means to delegate power to political elites who
then established authoritarian rule.106
One solution to this dilemma is to distinguish formally between the act
of establishing a political system and the political system itself. The participation of citizens is limited to the former. If they choose a system
other than democracy, they have, by this act, exhausted their right to selfdetermination.107 However, this view cannot explain why the act of self102. Christian Tomuschat, Democratic Pluralism: The Right to Political Opposition,
in HUMAN RIGHTS AND PLURALIST DEMOCRACY 27, 40 (Allan Rosas et al. eds., 1992).
103. Rosas, supra note 94, at 229; Sicilianos, supra note 94, at 24.
104. Cf. Russel A. Miller, Self-Determination in International Law and the Demise of
Democracy?, 41 COLUM. J. TRANSNAT’L L. 601 (2003) (presenting a historical argument
to challenge the assumed correlation between democracy and self-determination).
105. On this distinction, see Ernst-Wolfgang Böckenförde, Die verfassunggebende
Gewalt des Volkes—Ein Grenzbegriff des Verfassungsrechts [The Constituent Power of
the People—A Limit-Concept of Constitutional Law], in STAAT, VERFASSUNG, DEMOKRATIE
90, 98–107 (1991) (F.R.G.).
106. Jürgen Gebhardt, Das demokratische Prinzip und die moderne politische Ordnung [The Democratic Principle and the Modern Political Order], in DEMOKRATIE—
CHANCEN UND HERAUSFORDERUNGEN IM 21. JAHRHUNDERT 19, 28 (André Kaiser &
Wolfgang Leidhold eds., 2005) (F.R.G.).
107. Karl Doehring, Demokratie und Völkerrecht [Democracy and International Law],
in TRADITION UND WELTOFFENHEIT DES RECHTS. FESTSCHRIFT FÜR HELMUT STEINBERGER
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determination should be irreversible. Electoral outcomes depend on specific historical circumstances, and these circumstances may change over
time, just as citizens’ preferences or the very composition of a population
itself. Therefore, it is difficult to justify why the citizenry of one historical moment should have the power to bind future generations.
Gregory Fox and Georg Nolte set forth another solution in their contribution on “intolerant democracies.”108 Addressing whether democracies
should be allowed to fight political tendencies directed against the system itself, they propose a substantive concept of democracy. According
to their concept, electoral results may be disregarded in order to prevent
an undemocratic opposition from coming to power, thereby protecting
democracy as such. This argument, though, exhibits a predisposition towards democracy.109 Democracy, or even a specific type of substantive
democracy, is considered to be an absolute value a priori. It has been
shown, however, that the value of democracy always depends on socioeconomic circumstances.110 Thus, Alberto Asor Rosa’s statement is quite
astute:
[D]emocracy, precisely because it is a system of mediocrity that cannot
make itself out to be an absolute or an end in itself . . . is a game whose
defining feature is that it allows its own rules to be called into question.
If it does not, it is already something else.111
2. Representation and Self-Determination
Nevertheless, this observation does not lead to the conclusion that the
right to self-determination does not impose any restrictions on the power
of political elites to choose a form of government. With regard to the
principle of self-determination, the United Nations stated in its Friendly
Relations Declaration:
Nothing in the foregoing paragraphs shall be construed as authorizing
or encouraging any action which would dismember or impair, totally or
127, 129 (Hans-Joachim Cremer, Thomas Giegerich & Dagmar Richter eds., 2002)
(F.R.G.).
108. Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36 HARV. INT’L L.J. 1
(1995).
109. Martti Koskenniemi, “Intolerant Democracies”: A Reaction, 37 HARV. INT’L L.J.
231, 232–33 (1996).
110. See supra Part I.B.
111. Alberto Asor Rosa, La felicità e la politica [Happiness and Politics], LABORATORIO POLITICO Mar./Apr. 1981, at 10, 30–31 (Italy) (“[L]a democrazia, proprio in
quanto sistema delle mediocrità, che non si assolutizza e non si erige esso stesso a fine . .
. è quel tale gioco che accetta di rimettere in discussione le proprie regole. Se non lo fa, è
già un’altra cosa.”) (author’s translation).
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in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle
of equal rights and self-determination 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.112
Consequently, not every form of government is compatible with selfdetermination. To conform, a government must be representative. A further argument supports this observation. If a government could exclusively
determine the content of self-determination, then the principle of selfdetermination would not differ from the principle of state sovereignty
and thus lose any independent value.113
However, representation does not necessarily have to be realized
through elections. It may be realized by a government acting in the public
interest, functioning as a government for the people. In this circumstance, the problem is determining what form of government should be
recognized as representative. Unlike democracy, representativeness cannot be determined by the sole existence of certain institutions. Offering
a helpful, substantive proposal, Georg Sørensen distinguishes among
development-oriented regimes, growth-oriented regimes, and self-enriching
regimes.114 While development-oriented regimes strive to promote economic development as well as individual well-being, growth-oriented
regimes focus on fostering economic growth without taking into account
its effects on society.115 Of the three, self-enriching regimes are incompatible with the right to self-determination. A second indicator of a
representative government is its human rights record. Not every human
rights violation renders a government illegitimate, as such violations occur
even in the most advanced political systems.116 However, where systematic violations of core human rights take place within its borders, a
State is not representative of its citizens. It is illegitimate and, as a result,
infringes upon the right of its population to self-determination.
112. Friendly Relations Declaration, supra note 98, pmbl. (emphasis added).
113. Crawford, supra note 95, at 56.
114. GEORG SØRENSEN, DEMOCRACY AND DEMOCRATIZATION. PROCESS AND PROSPECTS
IN A CHANGING WORLD 76–81 (1998).
115. Id.
116. Certainly, a State remains responsible for its human rights violations even if the
violations do not directly undermine the legitimacy of the State.
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B. International Practice: Establishing Democratic Teleology
The inductive approach relies on the practice of international institutions.117 This Section examines the approach to democracy in international law through the lens of democratization theory. It argues that international law does not contain a strict right to democratic governance, but
rather a principle of democratic teleology. This principle has two dimensions.118 States are not required to transition to democracy right away,
but rather, must to develop towards democracy. Similarly, they are also
obligated to prevent regressions in the process of democratization.119
Evidence supporting these two dimensions can be found in various
fields of international law. The following analysis concentrates on three
areas of especial importance. First it focuses on universal human rights
instruments and the practice of international institutions, including the
U.N. General Assembly. This appraisal reveals that the relevant documents predominantly employ process-oriented language that focuses on
democratization instead of democracy. Moreover, the practices of regional
bodies in the Americas, Europe, and Africa will be considered.120 Instead
117. See JUDE I. IBEGBU, RIGHT TO DEMOCRACY IN INTERNATIONAL LAW 141–205
(2003); WHEATLEY, supra note 14, at 135–36; Tom J. Farer, The Promotion of Democracy: International Law and Norms, in THE UN ROLE IN PROMOTING DEMOCRACY:
BETWEEN IDEALS AND REALITY 32, 32 (Edward Newman & Roland Rich eds., 2004);
Fox, supra note 3; Franck, supra note 3; Christian Fulda, Demokratie und pacta sunt
servanda [Democracy and Pacta Sunt Servanda] (May 8, 2002) (unpublished Dr. iur.
dissertation, Humboldt University, Berlin) (on file with the Brooklyn Journal of International Law) (F.R.G.); Dodzi Kokoroko, Souveraineté étatique et principe de légitimité
démocratique [State Sovereignty and the Principle of Democratic Legitimacy], 16 REVUE
QUÉBÉCOISE DE DROIT INTERNATIONAL 37, 40 (2003) (Can.); Juliane Kokott, Souveräne
Gleichheit und Demokratie im Völkerrecht [Sovereign Equality, and Democracy in International Law], 64 HEIDELBERG J. INT’L L. 517, 526–27 (2004) (F.R.G.); Christian Pippan,
Gibt es ein Recht auf Demokratie im Völkerrecht? [Is There a Right to Democracy in
International Law?], in POPPER UND DIE MENSCHENRECHTE 119, 137–60 (Erwin Riefler
ed., 2007) (F.R.G.); Roland Rich, Bringing Democracy into International Law, 12.3 J.
DEM. 20, 21 (2001); Sicilianos, supra note 94; Attila Tanzi, Remarks on Democracy in
Contemporary International Law, 61 LA COMUNITÀ INTERNAZIONALE 289 (2006); Christian Tomuschat, L’intervention structurelle des Nations Unies [The Structural Intervention of the United Nations], in LA CONTRIBUTION DES NATIONS UNIES À LA
DÉMOCRATISATION DE L’ETAT, supra note 94, at 101; David Wippman, Defending Democracy Through Foreign Intervention, 19 HOUS. J. INT’L L. 659, 665–68 (1997); Jan
Wouters et al., Democracy and International Law, 34 NETH. Y.B. INT’L L. 137 (2003).
118. See Schedler, supra note 89, at 98.
119. Id.
120. The following analysis omits a detailed account on Asia. This is due to the fact
that commitments to democracy are at best embryonic. Nevertheless, some positive
trends can be observed in the framework of the Association of South East Asian Nations
(“ASEAN”). Democracy is first mentioned in the ASEAN’s Vientiane Action Program
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of dealing with positive progress, these bodies focus on enforcement mechanisms meant to prevent setbacks once democracy has been introduced. The Section concludes by looking at military interventions in the
name of democracy. Implicitly condemning the ousting of elected heads
of state, these interventions also emphasize the need to prevent setbacks
in the process of democratization.
1. International Institutions
(a) Right to Democratic Elections Under the ICCPR
Universal treaties are a well-recognized indicator for the existence of
customary norms. When States enter into treaty obligations, they express
their intent to be bound by its norms and thus manifest a corresponding
opinio juris.121 The most important treaty norm in this context is Article
25 of the ICCPR. It ensures the right to genuine, periodic elections,
which thereby guarantees the free expression of the electorate’s will.122
Although socialist States originally argued—based on the travaux préparatoire—that one-party systems could conform to Article 25, there is
now consensus among international legal scholars that voters must have
a more “meaningful choice” in order for a State to meet the Covenant’s
requirements.123 A “free expression of the will of the electors”124 and
(“VAP”). Under Title II of the VAP, the enhancement of democracy is listed as one of
the goals of ASEAN. The declaration employs process-oriented language, stating that
democracy should be enhanced and presenting democracy as a goal, not a strict obligation. Vientiane Action Program Title II (1), Nov. 29, 2004, available at http://www.
aseansec.org/VAP-10th%20ASEAN%20Summit.pdf. For more detailed accounts of democracy in the context of ASEAN, see Amitav Acharya, Democratization and the Prospects for Participatory Regionalism in Southeast Asia, 24 THIRD WORLD Q. 375, 378
(2003); Richard Burchill, Regional Integration and the Promotion and Protection of Democracy and Human Rights in Asia: Lessons from ASEAN (Working, Paper), http://law.
nus.edu.sg/aslasi/workingpapers/2007/doc/Mr%ØRichard%20Burchill.pdf (last visited Oct.
20, 2008).
121. North Sea Continental Shelf (F.R.G. v. Den.), 1969 I.C.J. 3, 42 (Feb. 20). For
additional commentary on the issue of treaties as indicators of customary law, see generally Richard R. Baxter, Treaties and Custom, 129 RECUEIL DES COURS 25 (1970).
122. ICCPR, supra note 17, art. 25.
123. SARAH JOSEPH ET AL., THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS: CASES, MATERIALS AND COMMENTARY ¶ 22.31 (2d ed. 2004); Gregory H. Fox,
The Right to Political Participation in International Law, in DEMOCRATIC GOVERNANCE
AND INTERNATIONAL LAW 48, 57–59 (Gregory H. Fox & Brad R. Roth eds., 2000); Karl
Josef Partsch, Freedom of Conscience and Expression, and Political Freedoms, in THE
INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS, supra
note 94, at 209, 240; Niels Petersen, Elections, Right to Participate in, International Protection, in MAX PLANCK ENCYCLOPEDIA OF PUB. INT’L L. ¶ 3, available at http://www.mpepil.
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“[participation] in the conduct of public affairs”125 are only possible
when voters have a choice between not only different persons, but also
different political agendas.126
Thus far, 160 States have ratified the ICCPR.127 More than eighty percent of the international community has agreed to select their governments
through free and fair elections. However, there are notable exceptions.
China and Pakistan, two of the ten most populous States in the world,
have failed to ratify the ICCPR.128 Furthermore, the list of abstaining
countries shows patterns of regional concentration. Especially in East and
Southeast Asia,129 a considerable number of States have not committed
themselves to holding periodic elections. Moreover, the number of States
parties becomes less impressive when actual state practice is considered.
Many of the States that have ratified the ICCPR do not actually practice
electoral democracy. According to a 2007 survey of Freedom House,
only two-thirds of the signatory States qualify as electoral democracies.130
Mere commitment to Article 25 without accompanying state practice is
insufficient to establish a customary principle of democracy.131
com/subscriber_article?script=yes&id=/epil/entries/law-9780199231690-e785&recno=1&s
earchType=Advanced&author=petersen (last visited Oct. 27, 2008).
124. ICCPR, supra note 17, art. 25(b).
125. Id. art. 25(a).
126. U.N. Human Rights Committee, Views of the Human Rights Committee Under
Article 5, Paragraph 4, of the Optional Protocol to the International Covenant on Civil
and Political Rights—Forty-Eighth Session—Concerning Communication No. 314/199
(Bwalya v. Zambia), ¶ 6.6, U.N. Doc. CCPR/C/48/D/314/1988 (Mar. 30, 1988).
127. As of October 17, 2008, the following States have yet to ratify the Covenant:
Antigua and Barbuda, Bahamas, Bhutan, Brunei, China, Comoros, Cuba, Fiji, GuineaBissau, Kiribati, Laos, Malaysia, Marshall Islands, Micronesia, Moldova, Myanmar,
Oman, Pakistan, Palau, Papua New Guinea, Saint Kitts and Nevis, Saint Lucia, São Tomé
and Príncipe, Saudi Arabia, Singapore, Solomon Islands, Tonga, Tuvalu, United Arab
Emirates, and Vanuatu. See Office of the U.N. High Commissioner for Human Rights,
Status of Ratifications, International Covenant on Civil and Political Rights, http://www2.
ohchr.org/english/bodies/ratification/4.htm [hereinafter ICCPR Ratifications] (last visited
Nov. 13, 2008).
128. Id. (both Pakistan and China are signatories to the Convention).
129. Bhutan, Brunei, China, Laos, Malaysia, Myanmar, Pakistan, and Singapore have
yet to ratify the Covenant. Id.
130. Arch Puddington, Freedom in the World 2007: Freedom Stagnation Amid Pushback Against Democracy, http://www.freedomhouse.org/template.cfm?page=130&year
=2007 (last visited Nov. 14, 2007).
131. VALENTINA GRADO, GUERRE CIVILI E TERZI STATI [CIVIL WAR AND THIRD
STATES] 260 (1998) (Italy); BRAD R. ROTH, GOVERNMENTAL ILLEGITIMACY IN INTERNATIONAL LAW 417 (1999); Dietrich Schindler, Völkerrecht und Demokratie [International Law and Democracy], in LIBER AMICORUM PROFESSOR SEIDL–HOHENVELDERN—IN
HONOUR OF HIS 80TH BIRTHDAY 611, 622 (Gerhard Hafner et al. eds., 1998) (Neth.); Ste-
2008]
THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
57
(b) Declarations of the U.N. General Assembly
The U.N. General Assembly has put forth a more modest approach.
Since 1988, it has been issuing resolutions in a series entitled “Enhancing
the Effectiveness of the Principle of Periodic and Genuine Elections.”132
The first resolution does not contain an explicit affirmation of a right to
democratic elections. Instead, in the resolution, the General Assembly
2. [s]tresses its conviction that periodic and genuine elections are a necessary and indispensable element of sustained efforts to protect the
rights and interests of the governed and that, as a matter of practical
experience, the right of everyone to take part in the government of his
or her country is a crucial factor in the effective enjoyment by all of a
wide range of other human rights and fundamental freedoms, including
political, economic, social, and cultural rights;
3. [d]eclares that determining the will of the people requires an electoral process which accommodates distinct alternatives, and this process
should provide an equal opportunity for all citizens to become candidates and put forward their political views, individually and in cooperation with others.133
fan Talmon, Who is a Legitimate Government in Exile? Towards Normative Criteria for
Governmental Legitimacy in International Law, in THE REALITY OF INTERNATIONAL LAW:
ESSAYS IN HONOUR OF IAN BROWNLIE 499, 534 (Guy S. Goodwin-Gill & Stefan Talmon
eds., 1999); Same Varayudej, A Right to Democracy in International Law: Its Implications for Asia, 12 ANN. SURV. INT’L & COMP. L. 1, 8, 17 (2006); Wheatley, supra note 24,
at 233; Mirko Zambelli, La démocratie: principe universel et fondamental de l’ordre
juridique international? [Democracy: Universal and Fundamental Principle of the International Legal Order?], 10 AKTUELLE JURISTISCHE PRAXIS 667, 673 (2001) (Fr.). For
opposing evaluations, see Thomas M. Franck, Legitimacy and the Democratic Entitlement, in DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW, supra note 123, at 25, 27;
Fulda, supra note 117, at 86; Nigel D. White, The United Nations and Democracy Assistance: Developing Practice Within a Constitutional Framework, in DEMOCRACY
ASSISTANCE: INTERNATIONAL CO-OPERATION FOR DEMOCRATIZATION 67, 72 (Peter Burnell ed., 2000).
132. G.A. Res. 62/150, U.N. Doc. A/RES/62/150 (Dec. 18, 2007); G.A. Res. 60/162,
U.N. Doc. A/RES/60/162 (Dec. 16, 2005); G.A. Res. 58/180, U.N. Doc. A/RES/58/180
(Dec. 22, 2003); G.A. Res. 56/159, U.N. Doc. A/RES/56/159 (Dec. 19, 2001); G.A. Res.
54/173, U.N. Doc. A/RES/54/173 (Dec. 17, 1999); G.A. Res. 52/129, U.N. Doc.
A/RES/52/129 (Dec. 12, 1997); G.A. Res. 50/185, U.N. Doc. A/RES/50/185 (Dec. 22,
1995); G.A. Res. 49/190, U.N. Doc. A/RES/49/190 (Dec. 23, 1994); G.A. Res. 48/131,
U.N. Doc. A/RES/48/131 (Dec. 20, 1993); G.A. Res. 47/138, U.N. Doc. A/RES/47/138
(Dec. 18, 1992); G.A. Res. 46/137, U.N. Doc. A/RES/46/137 (Dec. 17, 1991); G.A. Res.
45/150, U.N. Doc. A/RES/45/150 (Dec. 18, 1990); G.A. Res. 44/146, U.N. Doc.
A/RES/44/146 (Dec. 15, 1989); G.A. Res. 43/157, U.N. Doc. A/RES/43/157 (Dec. 8,
1988).
133. G.A. Res. 43/157, supra note 132, ¶¶ 1–2 (emphasis added).
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Instead of imposing a strict obligation, the resolution stresses the importance of elections. Paragraph 2 emphasizes that elections are a necessary
precondition for output legitimacy, while also invoking an empirical justification.134 In contrast, Paragraph 3 is of a normative nature, referring to
the “will of the people” and highlighting the necessity of implementing
their will through an electoral process.135
This resolution was slightly amended in following years. The successive versions contain reservations underlining the autonomy of States to
develop their own political systems. Adopted in 1991, Resolution
46/137, for example,
[r]ecogniz[es] that there is no single political system or electoral method
that is equally suited to all nations and their people and that the efforts
of the international community to enhance the effectiveness of the principle of periodic and genuine elections should not call into question
each State’s sovereign right, in accordance with the will of its people,
freely to choose and develop its political, social, economic and cultural
systems, whether or not they conform to the preferences of other
States.136
Furthermore, in the operative part, this Resolution
[u]nderscores the duty of each Member State, in accordance with the
provisions of the Charter of the United Nations, to respect the decisions
taken by other States, in accordance with the will of their people, in
freely choosing and developing their electoral institutions.137
Concurrently, in 1989 the General Assembly adopted a counterresolution series, “Respect for the Principles of National Sovereignty and
Non-interference in the Internal Affairs of States in their Electoral
Processes,”138 which stresses the right of peoples to determine their polit134. Id.
135. Id.
136. G.A. Res. 46/137, supra note 132, ¶ 5 (emphasis added). The two resolutions
passed in 1989 and 1990 include this paragraph in the operative part instead of the
preamble. G.A. Res. 45/150, supra note 132; G.A. Res. 44/146, supra note 132.
137. Id. (emphasis added).
138. G.A. Res. 54/168, U.N. Doc. A/RES/54/168 (Dec. 17, 1999); U.N. Doc.
A/RES/52/119 (Dec. 12, 1997); G.A. Res. 50/172, U.N. Doc. A/RES/50/172 (Dec. 22,
1995); G.A. Res. 49/180, U.N. Doc. A/RES/49/180 (Dec. 23, 1994); G.A. Res. 48/124,
U.N. Doc. A/RES/48/124 (Dec. 20, 1993); G.A. Res. 47/130, U.N. Doc. A/RES/47/130
(Dec. 18, 1992); G.A. Res. 46/130, U.N. Doc. A/RES/46/130 (Dec. 17, 1991); G.A. Res.
45/151, U.N. Doc. A/RES/45/151 (Dec. 18, 1990); G.A. Res. 44/147, U.N. Doc.
A/RES/44/147 (Dec. 15, 1989). From 2001, the resolutions were adopted with a revised
text that stresses the relationship between a people’s right to determine their political
system and the development of electoral institutions. See G.A. Res. 60/164, U.N. Doc.
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THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
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ical, economic, and social systems. In this Resolution, the General Assembly
1. [r]eiterates that, by virtue of the principle of equal rights and selfdetermination of peoples enshrined in the Charter of the United Nations,
all peoples have the right, freely and without external interference, to
determine their political status and to pursue their economic, social and
cultural development, and that every State has the duty to respect that
right in accordance with the provisions of the Charter;
2. Affirms that it is the concern solely of peoples to determine methods
and to establish institutions regarding the electoral process, as well as
to determine the ways for its implementation according to their constitution and national legislation;
[. . .]
4. Urges all States to respect the principle of non-interference in the internal affairs of States and the sovereign right of peoples to determine
their political, economic and social system.139
At first glance, the two strands in these series appear to contradict each
other.140 While one praises the advantages of an electoral system of government, the other emphasizes the importance of national autonomy as
well as a people’s authority to choose a proper political, economic, and
social system without external interference. However, any seeming contradiction is not as great as some scholars maintain. Even if a people
have the right to determine their political system, the choice is not unlimited. As discussed in the previous section, a legitimate government
must be representative.141 Paragraph 5 of Resolution 46/137 expresses
this point by emphasizing that the choice has to be made “in accordance
with the will of the people.”142 Considering the difficulties of consolidat-
A/RES/60/164 (Dec. 16, 2005); G.A. Res. 58/189, U.N. Doc. A/RES/58/189 (Dec. 22,
2003); G.A. Res. 56/154, U.N. Doc. A/RES/56/154 (Dec. 19, 2001).
139. G.A. Res. 44/147, supra note 138 (emphasis added).
140. Rafâa Ben Achour, Égalité souveraine des états, droit des peuples à disposer
d’eux-mêmes et liberté de choix du système politique, économique, culturel et social [The
Sovereign Equality of States, the Peoples’ Right to Self-determination, and the Freedom
of Choice of the Political, Economic, Cultural, and Social System], in FEDERICO MAYOR
AMICORUM LIBER: SOLIDARITÉ, ÉGALITÉ, LIBERTÉ 785, 793 (Karel Vasak et al. eds.,
1995) (Belg.); Slim Laghmani, Vers une légitimité démocratique? [Towards a Democratic Legitimacy?], in LES NOUVEAUX ASPECTS DU DROIT INTERNATIONAL 249, 269 (Rafâa
Ben Achour & Slim Laghmani eds., 1994) (Fr.) (noting that they are an “exacte négation”
of the pro-election resolutions).
141. See supra Part II.A.2.
142. G.A. Res. 46/137, supra note 132, ¶ 5.
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ing the pouvoir constituant and pouvoir constitué,143 though, this right to
choose does not amount to an automatic right to democracy.
The resolutions, rather, suggest a teleological view of elections and
democracy, upholding the desirability of electoral institutions without
imposing a strict obligation to establish and honor them. In the above
analysis of democratization theories, it has been shown that democratization is a long-term process, not a simple shift from one status to another.144
By using the terms “developing” and “enhancing” to discuss electoral
institutions, the language of these resolutions stresses this process-like
character of democratization.
In addition, several other resolutions and declarations of the international community support this understanding of democratization. A
prime example is General Assembly Resolution 55/96, which was
adopted in 2000.145 Its central purpose is to “call upon states to promote
and consolidate democracy.”146 Thus, the Resolution also uses processoriented terminology by employing the words “promoting” and “consolidating.” The latter is often used in the social sciences to describe the teleological nature of democratization processes.147 Similarly, the term
“consolidation” bolsters the point that in international law democracy is
both a classificatory and a gradual concept. Democratization not only
involves the process leading to a transition to democracy, but also requires subsequent consolidation.
The aforementioned Vienna Declaration of Human Rights also includes a paragraph dedicated to democratization:
The World Conference on Human Rights reaffirms that least developed
countries committed to the process of democratization and economic
reforms, many of which are in Africa, should be supported by the international community in order to succeed in their transition to democracy
and economic development.148
Again, the language focuses on the process of realizing rather than the
status of democracy. Finally, in the U.N. Millennium Declaration, one
can find two statements championing the promotion of democracy or
advocating the development of U.N. Member States’ capacity for democratization.149
143. See supra Part II.A.1.
144. See supra Part I.B.4.
145. G.A. Res. 55/96, supra note 18.
146. Id. ¶ 1.
147. Schedler, supra note 89, at 95.
148. Vienna Declaration, supra note 4, ¶ 9.
149. G.A. Res. 55/2, ¶¶ 24–25 U.N. Doc. A/RES/55/2 (Sept. 8, 2000) (“We will spare
no effort to promote democracy and strengthen the rule of law . . . . We resolve therefore
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2. Regional Developments
(a) The Americas
Some of the most extensive guarantees concerning democracy can be
found in the context of the Organization of American States (“OAS”).
Article 23 of the American Convention on Human Rights150 prescribes
the right to participate in democratic elections. Furthermore, according to
Article 2(b) of the OAS Charter,151 the promotion of democracy is one of
the Organization’s principal objectives. At the start of the 1990s, the
OAS established a mechanism to implement this objective. In June 1991,
the General Assembly of the OAS adopted Resolution 1080, which authorized the OAS Permanent Council to employ coercive measures
against a Member State whose democracy was compromised.152
One year later, the Washington Protocol modified the founding charter.153 Revised Article 9 of the Charter provides for suspending a State’s
membership rights if its elected government has been overthrown by
force. The mechanism governing this suspension is now outlined in
greater detail in Articles 17 through 22 in the Inter-American Democratic
Charter,154 which was adopted in 2001.155
The OAS has applied this sanction mechanism several times. In September 1991, shortly after the adoption of Resolution 1080, it was first
employed in response to Haiti’s president, Jean-Bertrand Aristide, being
. . . [t]o strengthen the capacity of all our countries to implement the principles and practices of democracy.”).
150. American Convention, supra note 17.
151. Charter of the Organization of American States art. 2(b), Apr. 30, 1948 1948
T.I.A.S. 2361, 119 U.N.T.S. 3.
152. O.A.S. Doc. AG/RES 1080 (XXI-O/91) (June 5, 1991) (authorizing the Permanent Council to “devise a set of proposals that will serve as incentives to preserve and
strengthen democratic systems”).
153. Protocol of Amendments to the Charter of the Organization of American States
“Protocol of Washington,” 33 I.L.M 1005 (1994).
154. Inter-American Democratic Charter arts. 17–21, O.A.S. Doc. OEA/Ser.P/AG/Res.1
(XXVIII-E/01) (Sept. 11, 2001).
155. See Enrique Lagos & Timothy D. Rudy, The Third Summit of the Americas and
the Thirty-First Session of the OAS General Assembly, 96 AM. J. INT’L L. 173 (2002);
Sonia Picado, The Evolution of Democracy and Human Rights in Latin America: A TenYear Perspective, 11 HUM. RTS. BRIEF 28 (2004) (providing a more in-depth discussion
of the Democratic Charter). Although the Democratic Charter is not directly binding as a
resolution of the OAS General Assembly, according to Article 31 of the Vienna Convention
on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679, the mechanism
in question can be regarded as an “interpretation” of Article 9 of the OAS Charter. See
Enrique Lagos & Timothy D. Rudy, In Defense of Democracy, 35 U. MIAMI INTER-AM.
L. REV. 283, 303–05 (2004).
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ousted in a coup. The OAS Permanent Council convened immediately
and condemned the coup, demanding that Aristide be reinstated.156 Three
days later, the OAS suspended trade relations with Haiti and all forms of
non-humanitarian aid.157 Subsequently, the United Nations assumed the
case, and two years after the coup, it finally authorized the United States
to intervene militarily to force the military junta to step down.158
In April 1992, the President of Peru, Alberto Fujimori, staged an autocoup, in which he dissolved the parliament and arrested several opposition members.159 The OAS Permanent Council expressly condemned this
action,160 and the international community suspended loans to Peru. The
international pressure prompted Fujimori to concede the election of a
constitutional assembly in November 1992.161 Nevertheless, the effectiveness of these international measures was limited, as in the end Fujimori
won the elections and maintained power.162
One year later, Guatemala’s president, Serrano Elías, also initiated an
auto-coup, dissolving the parliament, suspending several constitutional
rights, and dismissing the constitutional court.163 In this case, the OAS
initiated sanctions severer than those used against Fujimori.164 The Permanent Council unanimously condemned Serrano’s coup and ultimately
forced him to step down.165
Peru again became the focus of international attention in 2000 when
the OAS sent a mission to Peru to monitor presidential elections.166 The
monitoring mission found itself unable to guarantee the technical minimum standards for counting the votes in the decisive ballot between
156. O.A.S. Doc. CP/RES. 567 (870/91) (Sept. 30, 1991).
157. O.A.S. Doc. MRE/RES. 1/91, Ser. F/V.1 (Oct. 3, 1991).
158. See infra Part II.B.3.b (referring to the case of Haiti in more detail).
159. Picado, supra note 155, at 29.
160. O.A.S. Doc. MRE/RES. 1/92, OES/Ser. F./V.2 (Apr. 13, 1992).
161. Picado, supra note 155, at 29.
162. Tom J. Farer, Collectively Defending Democracy in the Western Hemisphere:
Introduction and Overview, in BEYOND SOVEREIGNTY: COLLECTIVELY DEFENDING DEMOCRACY IN THE AMERICAS 1, 19–20 (1996).
163. Barry Steven Levitt, A Desultory Defense of Democracy: OAS Resolution 1080
and the Inter-American Democratic Charter, 48 LATIN AM. POL. & SOC’Y 93, 104
(2006).
164. See id. at 116 (noting that the reason for the different treatment was probably the
fact that the Peruvian people supported Fujimori more than the Guatemalan people supported Serrano).
165. Id. at 105.
166. See OAS Mission for Peru, BBC NEWS, June 6, 2000, http://news.bbc.co.uk/
2/hi/americas/809399.stm.
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THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
63
Fujimori and his contender, Alejandro Toledo.167 The OAS thus cancelled the mission.168 In its report, the delegation stated that the elections
failed to meet international standards.169 Despite this report, OAS Member States could not agree to condemn Peru on the basis of Resolution
1080.170 The Permanent Council, adopting a compromise, sent a mission
to Peru to investigate the situation in more detail.171 The mission, however,
was not completed because Fujimori stumbled into a corruption scandal
and had to cede power.172
In February 2004, Haiti’s President Aristide was toppled for a second
time.173 Following brief hostilities, Aristide was forced to step down and
flee the country.174 The president of the supreme court, Boniface Alexandre, succeeded Aristide as transitional president.175 The reaction of the
international community was much more lukewarm compared to thirteen
years earlier. Although the OAS General Assembly reacted four months
later, adopting a resolution that called upon Haiti to return to democracy
and condemned the acts of violence since the coup,176 the OAS failed to
authorize formal sanctions or suspend Haiti’s membership rights.177 Most
probably, this mild international reaction was due to Aristide’s weak
legitimacy, considering he won elections in 2000 that were subject to
irregularities.178 Furthermore, many human rights organizations blamed
Aristide for the deteriorating human rights situation and political violence in the country.179 This case suggests that the OAS treats coups
d’état differently. Rather than automatically condemning every coup, the
OAS considers the perceived legitimacy of an ousted head of state to be
a decisive factor.
References to democracy are not limited to the OAS. Legal documents
addressing democracy and elections can also be found in the framework
167. Fujimori Insists Poll ‘Fair,’ BBC NEWS, May 30, 2000, http://news.bbc.co.uk/
2/hi/americas/768893.stm.
168. Id.
169. Toledo Withdraws from Peru Election, BBC NEWS, May 22, 2000, http://news.bbc.
co.uk/2/hi/americas/759691.stm.
170. OAS Mission for Peru, supra note 166.
171. Id.
172. Michele Wucker, Haiti: So Many Missteps, 21 WORLD POL’Y J. 41, 41–42 (2004).
173. Id.
174. Id.
175. David S. Berry, Non-Democratic Transitions: Reactions of the OAS and CARICOM
to Aristide’s Departure, 33 SYRACUSE J. INT’L L. & COM. 249, 256 (2005).
176. O.A.S. Doc. AG/RES. 2058 (XXXIV-O/04) (June 8, 2004).
177. Berry, supra note 175.
178. Wucker, supra note 172, at 41, 45.
179. Id. at 47.
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of some Latin American regional organizations. In 1998, the Member
States of the Andean Community (“CAN”) adopted the Andean Community Commitment to Democracy180 as a legally binding additional protocol
to the founding statute of the CAN, the Cartagena Agreement.181 In addition to expressing a commitment to democracy in Article 1, the protocol
sets up a sanction mechanism in Article 4.182 If the democratic order is
disrupted in violation of Article 2, this mechanism provides for coercive
measures ranging from the suspension of membership rights to ineligibility for loans from the financial institutions of the CAN.183 Furthermore,
Article 13 of the Human Rights Charter of the CAN prescribes a right to
democracy, which is further specified in Articles 14 through 18.184
A similar mechanism was included in the framework of the Mercado
Común del Sur (“MERCOSUR”). In 1996, the Member States adopted a
declaration on democracy stating that the establishment and maintenance
of democratic institutions are fundamental preconditions for cooperation
with the MERCOSUR.185 Violations may lead to the suspension of
membership rights.186 With the Protocol of Ushuaia, this mechanism has
been transformed into an international treaty, applying to Bolivia and
Chile in addition to the member signatories.187
Article 3 of the Protocol of Tegucigalpa, the founding statute of the
System of Central American Integration (“SICA”),188 identifies the promotion and strengthening of democracy as one of the organization’s
principal objectives.189 In 1995, this objective was reaffirmed in the
180. Additional Protocol to the Cartagena Agreement: “Andean Community Commitment to Democracy,” Aug. 7, 1998, available at http://www.comunidadandina.org/INGLES/
normativa/democracy.htm.
181. Official Codified Text of the Cartagena Agreement, May 26, 1969, 28 I.L.M.
1165, amended by the Quito Protocol (May 12, 1987).
182. Additional Protocol to the Cartagena Agreement, supra note 180, arts. 1, 4.
183. Id. art. 4.
184. Andean Charter for the Promotion and Protection of Human Rights arts. 13–18, Jul.
26, 2002, available at http://www.comunidadandina.org/INGLES/documentos/documents/and
ean_charter.htm.
185. Declaración Presidencial sobre Compromiso Democrático en el MERCOSUR, June
25, 1996, ¶ 1, available at http://www.mercosursalud.org/espanhol/mercosul/historico/Decl_
compr_Pres.htm.
186. Id. ¶ 4.
187. Protocolo de Ushuaia sobre Compromiso Democrático en el MERCOSUR, la
Republica de Bolivia y la Republica de Chile, July 24, 1998, available at http://www.merc
osur.int/msweb/portal%20intermediario/es/index.htm (follow “Protocolo de Ushuaia” hyperlink).
188. Sistema de Integración Centroamericana.
189. Protocolo de Tegucigalpa a la Carta de la Organización de Estados Centroamericanos (ODECA) art. 3, Dec. 13, 1991, 1695 U.N.T.S. 382.
2008]
THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
65
Framework Treaty on Democratic Security in Central America.190 In addition to noting that the SICA is based on the principles of democracy
and the rule of law, Article 1 of the Treaty obligates States to elect governments through universal and free elections.191
(b) Europe
As in the Americas, the institutional design of European international
organizations shows a strong commitment to democracy. Article 3 of the
first additional protocol to the European Convention on Human Rights192
prescribes a right to participate in democratic elections. In contrast to the
OAS, however, the principle of democracy has not been enshrined in the
founding Statute of the Council of Europe (“Statute”).193 Rather, Article
3 of the Statute provides that Member States “must accept the principles
of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the objective of the Council as
specified in Chapter I.”194 Although missing in the operative part of the
Statute, democracy is mentioned in the preamble. There, democracy is
described as originating from the “spiritual and moral values which are
the common heritage of the [European] peoples.”195 According to Article
1(a) of the Statute, fulfilling these values is one of the main objectives of
the Council.196
In practice, a State’s level of democratization has had an influence on
its membership in the Council of Europe. When the parliamentary democracy in Greece was succeeded by a military dictatorship in 1967, the
European Council’s Parliamentary Assembly recommended the exclusion
of Greece to the Committee of Ministers.197 Greece responded by withdrawing from the Council of Europe on December 12, 1969.198 Similarly,
the Council only admitted Portugal and Spain as members after each
190. Tratado Marco de Seguridad Democrática in Centroamérica, Dec. 15, 1995, 2007
U.N.T.S. 191, available at http://www.sieca.org.gt/publico/Reuniones_Presidentes/xvii/tratad
o1.htm
191. Id. art. 1.
192. Protocol to the Convention for the Protection of Human Rights and Fundamental
Freedoms art. 3, Mar. 20, 1952, Europ.T.S. No. 9.
193. Statute of the Council of Europe, May 5, 1949, Europ. T.S. No. 1.
194. Id. art. 3
195. Id. pmbl.
196. Id. art. 1(a).
197. Council of Europe, Recommendation 547 of the Consultative Assembly (Jan. 30,
1969) 17 Eur. Y.B. 277–79 (1969).
198. See Notification of the Greek Government Denouncing the Statute of the Council
of Europe (Dec. 17, 1969) 17 Eur. Y.B. 327–29 (1969).
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country reinstated democratic governments.199 And after the dissolution
of the Soviet Union, Russia’s admission to the Council was delayed for
several years because, inter alia, a report of experts testified that Russia
had failed to meet “the Council of Europe’s standards.”200
In the Charter of Paris, enacted during the Conference for Security and
Cooperation in Europe in 1990, European heads of state declared that
democracy is the only admissible form of government.201 Although the
Charter of Paris does not have immediate binding force, consistent with
Article 31 of the Vienna Convention on the Law of Treaties,202 it can be
used as a tool to interpret existing obligations such as those of the Council of Europe.203
The supranational institution in which the democracy principle is the
most developed, but also the most widely criticized, is the European Union.204 According to Article 6(1) of the Treaty on the European Union,
democracy is one of the EU’s fundamental principles.205 It is part of the
acquis communautaire, which every potential member must observe in
order to be admitted to the European Union.206 Moreover, Article 7 of the
199. YVES BEIGBEDER, INTERNATIONAL MONITORING OF PLEBISCITES, REFERENDA AND
NATIONAL ELECTIONS 249 (1994).
200. Ronald St. J. Macdonald, The Entry of New Member States into the Council of
Europe, 91 AM. SOC’Y INT’L L PROC. 523, 523–24 (1997).
201. Charter of Paris for a New Europe, Nov. 21, 1990, 30 I.L.M. 193 (1991).
202. See supra note 155.
203. Jochen Abr. Frowein, Demokratie und Völkerrecht in Europa [Democracy and
Public International Law in Europe], in VÖLKERRECHT ZWISCHEN NORMATIVEM ANSPRUCH UND POLITISCHER REALITÄT. FESTSCHRIFT FÜR KARL ZEMANEK ZUM 65. GEBURTSTAG 365, 368 (Konrad Ginther et al. eds., 1994) (F.R.G.).
204. See, e.g., Renaud Dehousse, Beyond Representative Democracy: Constitutionalism in a Polycentric Polity, in EUROPEAN CONSTITUTIONALISM BEYOND THE STATE 135
(J.H.H. Weiler & Marlene Wind eds., 2003); Augustín José Menéndez, Between Laeken
and the Deep Blue Sea: An Assessment of the Draft Constitutional Treaty from a Deliberative-Democratic Standpoint, 11 EUR. PUB. L. 105 (2005); Anne Peters, European
Democracy After the 2003 Convention, 41 COMMON MKT. L. REV. 37 (2004); Niels Petersen, The Democracy Concept of the European Union: Coherent Constitutional Principle
or Prosaic Declaration of Intent?, in THE UNITY OF THE EUROPEAN CONSTITUTION 97
(Philipp Dann & Michal Rynkowski eds., 2006) (proposing different conceptualizations
of the democracy principle in the European Union); Joseph H.H. Weiler et al., European
Democracy and Its Critique, 18 W. EUR. POL. 4 (1995).
205. Consolidated Version of the Treaty on European Union, Mar. 10, 2001, art. 6,
2002 O.J. (C 325), as amended by the Treaty of Nice (Mar. 10, 2001).
206. Id. art. 49.
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THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
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Treaty provides for a sanction mechanism whereby certain membership
rights may be suspended if Article 6(1) of the Treaty is violated.207
(c) Africa
Regarding the African Union (“AU”), Article 13 of the African Charter
on Human and Peoples’ Rights (“Banjul Charter”) does not explicitly
mention a right to elections. 208 It does, however, guarantee a right to participate in public affairs.209 According to the African Commission on
Human Rights (“African Commission”), this participation involves legitimating a sovereign power through elections.210 Articles 3(g) and 4(m) of
the AU Charter also identify the promotion of and respect for democratic
principles and institutions as fundamental objectives of the AU.211 Moreover, the AU as well as its predecessor, the Organization of African Unity
(“OAU”), have established protection mechanisms against coups d’état.
The starting point was a 1994 resolution of the African Commission,
which condemned military overthrows of government and appealed to
military regimes to transfer their power to elected governments.212
In practice, the turning point was the ousting of Ahmed Kabbah in
Sierra Leone in 1997.213 The OAU supported the military intervention of
the Economic Community of West African States (“ECOWAS”)214 and
207. Id. art. 7. For a detailed discussion of the sanction mechanisms established by
Article 7 of the EU Treaty, see AMARYLLIS VERHOEVEN, THE EUROPEAN UNION IN
SEARCH OF A DEMOCRATIC AND CONSTITUTIONAL THEORY 349–54 (2002).
208. Organization of African Unity: Banjul Charter of Human and Peoples’ Rights,
Jun. 27, 1981, 21 I.L.M. 58, available at http://www.africa-union.org/root/au/Documents/
Treaties/Text/Banjul%20Charter.pdf [hereinafter Banjul Charter]. However, it should be
noted that Article 13 discusses the right of every citizen to “participate freely in the
government of his country, either directly or through freely chosen representatives in
accordance with the provision of the law.” Id. art. 13.
209. Id.
210. Constitutional Rights Project and Civil Liberties Organisation/Nigeria ¶¶ 49–50,
Doc. ACHPR/102/93 (Oct. 31, 2008), reprinted in African Commission on Human
Rights and Peoples’ Rights, Twelfth Annual Activity Report of the African Commission on
Human and Peoples’ Rights (1998–1999) 45, Doc. AHG/215 (XXV) (1998), available at
http://www.achpr.org/english/activity_reports/activity12_en.pdf.
211. Constitutive Act of the African Union arts. 3(g), 4(m), O.A.U. Doc. CAB/LEG/2315
(July 11, 2000), available at http://www.au2002.gov.za/docs/key_oau/au_act.htm [hereinafter Act of the AU].
212. Resolution on the Military, OAU Doc. ACHPR/Res.10(XVI)94 (Nov. 3, 1994),
available at http://www.achpr.org/english/_doc_target/documentation.html?../resolutions/
resolution15_en.html.
213. Paul D. Williams, From Non-Intervention to Non-Indifference: The Origins and
Development of the African Unions Security Culture, 106 AFR. AFF. 253, 272 (2007).
214. See infra Part II.B.3.b for a discussion of this intervention.
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called upon the international community not to recognize the junta of
Paul Koroma.215 The OAU reacted similarly towards military coups in
the Comoros, Ivory Coast, and Niger, refusing to acknowledge the legitimacy of rebel governments in these states.216
This position was translated into a formal legal rule during the foundation of the AU. Article 4 of the AU Charter condemns unconstitutional
changes of government.217 Correspondingly, Article 30 of the AU Charter allows a State’s membership rights to be suspended where the government has come to power by “unconstitutional means.”218 Reading
Article 4 in conjunction with Article 30 suggests that the latter permits
such sanctions only when an elected regime has been ousted.
In a 2000 declaration (“Declaration”), AU Member States further elaborated upon this sanction mechanism.219 The Declaration provides for a
six-month period in which the implicated State has the opportunity to
restore its constitutional order, and during this time, the AU can suspend
its right to participate in the policy-making organs of the AU.220 If it does
not comply with this obligation, the AU may then institute sanctions
against the noncompliant State.221 The Declaration contains a nonexhaustive list of possible sanctions, ranging from denying visas for illegitimate
government officials, to limiting government-to-government contacts, to
restricting trade with other AU countries.222
This mechanism has been applied in several cases. In 2003, the AU
barred the Central African Republic from taking part in its organs after
military forces overthrew the elected president, Ange-Félix Patassé.223
The AU allowed the country to resume its participation following presidential elections held in 2005.224 Likewise, when Faure Gnassingbé captured power in Togo by military force after the death of his father in
215. OAU Council of Ministers, Doc. CM/Dec. 356 (LXVI) (May 28–31, 1997).
216. Tiyanjana Maluwa, The Constitutive Act of the African Union and InstitutionBuilding in Postcolonial Africa, 16 LEIDEN J. INT’L L. 157, 165 (2003).
217. Act of the AU, supra note 211, art. 4.
218. Id.
219. Declaration on the Framework for an OAU Response to Unconstitutional Changes
of Government, O.A.U. Doc. AHG/Decl.5 (XXXVI) (July 10–12, 2000), available at
http://www.africa-union.org/Special_Programs/CSSDCA/cssdca-solemndeclaration.pdf.
220. Id.
221. Id.
222. Id.
223. A.U. Doc. Central Organ/MEC/AMB/Comm. (XC), ¶ 4 (Mar. 17, 2003), available
at http://www.africa-union.org/News_Events/Communiqu%C3%A9s/Communique_20_
Eng_17mar03.pdf.
224. A.U. Doc. PSC/PR/Comm. (XXXIII)–(ii), ¶ 2 (June 24, 2005), available at
http://www.iss.co.za/Af/RegOrg/unity_to_union/pdf/centorg/PSC/comm33.pdf.
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February 2005, in addition to condemning the coup and welcoming the
sanctions that ECOWAS initiated, the AU suspended Togo’s membership rights.225 This pressure prompted Gnassingbé to step down and hold
elections, which he ultimately won.226 Despite doubts about the legitimacy
of Gnassingbé’s election,227 the Peace and Security Council readmitted
Togo’s government.228
This last example indicates that the current practice of the AU is problematic in two respects: on the one hand, its sanctions are too farreaching, and on the other hand, as in the case of Togo, they are not
inclusive enough.229 Regarding the over-inclusiveness of sanctions, military coups have been condemned, notwithstanding the legitimacy of
ousted regimes. There is thus a danger that the mechanism is a reinforcer
of the status quo rather than a catalyst for democratization.230 Mauritania’s President, Maaouya Sid Ahmed Ould Taya, for example, whose
legitimacy was questionable at best, was overthrown in a bloodless coup
in August 2005.231 Although the military government announced that it
would hold elections within two years and exclude its own participation,
the AU condemned the coup and subjected Mauritania to sanctions.232
However, some African politicians voiced dissent. The South African
Ambassador to Mauritania, for example, declared: “[although] the principle of the AU is not to agree with coups . . . we believe we shall not
have one policy to fit every situation.”233 The sanctions against Maurita-
225. A.U. Doc. PSC/PR/Comm. (XXV), ¶ 3–4 (Feb. 25, 2005) available at
http://www.issafrica.org/AF/RegOrg/unity_to_Union/pdfs/centorg/PSC/2005/25com.pdf.
226. Doubts Hang over Togo Election, BBC NEWS, Apr. 29, 2005, http://news.bbc.
co.uk/2/hi/africa/4497787.stm.
227. See id.
228. A.U. Doc. PSC/PR/Comm. (XXX), ¶ 3 (May 27, 2005), available at http://www.
issafrica.org/AF/RegOrg/unity_to_union/pdfs/centorg/PSC/2005/30comm.pdf.
229. Williams, supra note 213, at 274.
230. See Djacoba Liva Tehindrazanarivelo, Les sanctions de l’union africaine contre
les coups d’état et autres changements anticonstitutionnels de gouvernement: potentialités et mesures de renforcement [The African Union’s Sanctions Against Coups d’État
and Other Unconstitutional Changes of Government: Efficacy and Enforcement Strategies], 12 AFR. Y.B. INT’L L. 255, 280 (2004) (Neth.).
231. Mauritania Officers “Seize Power,” BBC NEWS, Aug. 4, 2005, http://news.bbc.
co.uk/2/hi/africa/4741243.stm.
232. A.U. Doc. PSC/PR/Stat. (XXXVI)-(ii) (Aug. 4, 2005), available at http://www.
africa-union.org/psc/36th/36th%20Stat%20Mauritania%20PSC%20Eng.pdf.
233. AU Seeks Mauritanian Junta Talks, BBC NEWS, Aug. 9, 2005, http://news.bbc.
co.uk/1/hi/world/africa/4135350.stm.
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nia were nonetheless lifted only after presidential elections were held in
the spring of 2007.234
However, there are also positive signs. In two other cases, the AU
issued formal condemnations without further sanctions in response to
coups against regimes of doubtful legitimacy. The December 1999 military coup against a corrupt regime in the Ivory Coast was publicly criticized, but the transitional government was recognized shortly thereafter.235
When President Kumba Yalla was ousted in Guinea-Bissau in 2003, after
dissolving the parliament and adopting several dictatorial decrees, the
AU only denounced the coup.236
At the same time, the AU has been very reluctant to act when it comes
to other constitutional infringements such as falsifying elections, amending constitutions to consolidate more power, or permitting additional
terms in office.237 A recent example is the March 2008 presidential election in Zimbabwe. Although the legitimacy of the reelection of Robert
Mugabe was questionable at best, the AU General Assembly only
adopted a resolution encouraging the opposing parties to enter into a
constructive dialogue and failed to impose any sanctions.238
Some regional organizations in Africa have established mechanisms
similar to those of the AU. The 1991 Declaration of Political Principles
of the Economic Community of West African States asserts:
We believe in the liberty of the individual and in his inalienable right to
participate by means of free and democratic processes in the framing of
the society in which he lives. We will therefore strive to encourage and
promote in each of our countries, political pluralism and those representative institutions and guarantees for personal safety and freedom
under the law that are our common heritage.239
234. A.U. Doc. PSC/PR/Comm. (LXXVI), ¶ 3–7 (Apr. 10, 2007), available at http://www.
iss.co.za/dynamic/administration/file_manager/file_links/REP76.PDF?link_id=22&slink_id
=4297&link_type=12&slink_type=13&tmpl_id=3.
235. Christof Hartmann, Demokratie als Leitbild der afrikanischen Staatengemeinschaft? Zur Theorie und Praxis demokratischer Schutzklauseln in der Afrikanischen Union [Democracy as a Model for the African Community of States? On Theory and Practice of Democratic Protection Clauses in the African Union], 38 VERFASSUNG UND RECHT
IN ÜBERSEE 201, 218 (2005) (F.R.G.).
236. A.U. Doc. Central Organ/MEC/AMB/Comm. (XCV) (Sept. 18, 2003).
237. Hartmann, supra note 235, at 219–20; Williams, supra note 213, at 274–75.
238. A.U. Doc. Assembly/AU/Res.1 (XI) (July 1, 2008), available at http://www.
africa-union.org/root/au/Conferences/2008/june/summit/dec/ASSEMBLY%20DECISIO
NS%20193%20-%20207%20(XI).pdf.
239. Declaration of Political Principles of the ECOWAS, Doc. A/DCL.1/7/91, ¶ 6 (Jul.
6, 1991).
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THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
71
The essence of this declaration was incorporated into the 1993 Treaty
of ECOWAS.240 Subsections (h) and (j) of Article 4 provide that the right
to participate in the conduct of government and promote democracy is
one of the organization’s fundamental principles.241 Moreover, in accordance with Article 58(2)(g), the organization is to offer its support in the
holding of elections upon a Member State’s request.242 The ECOWAS
reaffirmed these principles in the Protocol on Democracy and Good Governance,243 which explicitly emphasizes the obligation to hold free, fair,
and transparent elections.244
Furthermore, in Article 4(c) of the Charter of the South African Development Community (“SADC”), the promotion of democracy is enshrined
as one of the SADC’s guiding principles.245 According to Article 5(1),
the organization’s objectives feature, inter alia, the promotion of common political values “transmitted through institutions which are democratic, legitimate and effective,”246 as well as the “consolida[tion], defen[se] and mainten[ance] of democracy.”247 The SADC Principles and
Guidelines Governing Democratic Elections, adopted in August 2004
during the organization’s summit in Mauritius, also support these principles.248
(d) Evaluation
The analysis of emerging regional commitments to democracy presents
a heterogeneous picture. In the Americas and Europe, a democracy principle has been established under regional customary law.249 Both human
240. Economic Community of West African States Revised Treaty, Jul. 24, 1993, 35
I.L.M. 660.
241. Id. art. 4(h)–(j).
242. Id. art. 58(2)(g).
243. Protocol on Democracy and Good Governance, Doc. A/SP1/12/01 (Dec. 22, 2001),
available at http://www.ecowas.int.
244. Id. art. 1.
245. Treaty of the Southern African Development Community art. 4(c), Aug. 17, 1992,
available at http://www.sadc.int/index/browse/page/120.
246. Id. art. 5(1)(b).
247. Id. art. 5(1)(c).
248. SADC Principles and Guidelines Governing Democratic Elections, Aug. 2004,
http://www.sadc.int/english/documents/political_affairs/index.php.
249. On the democracy principle in Europe, see Frowein, supra note 203. On the democracy principle in the Americas, see Dexter S. Boniface, Is There a Democratic Norm
in the Americas? An Analysis of the Organization of American States, 8 GLOBAL
GOVERNANCE 365 (2002) (analyzing events supporting the argument that a customary
democracy principle is developing in the Americas); Dinah Shelton, Representative Democracy and Human Rights in the Western Hemisphere, 12 HUM. RTS. L.J. 353 (1991)
(discussing the OAS’s emphasis on democratic institutions).
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rights treaties and documents of the regional political organizations contain extensive electoral and democratic guarantees. American and European regional bodies have also developed effective sanction mechanisms
against States that fail to meet democratic standards. In Europe especially,
these sanctions not only concentrate on the central element of democracy—elections—but also strive to implement a more substantive vision of
democracy.
With regard to Africa, locating a coherent democratic principle is more
difficult. Although the AU Charter has deemed democracy one of its vital
objectives,250 and the Banjul Charter prescribes a right to participate in
public affairs,251 many governments in Africa remain undemocratic.
However, instead of actively promoting democracy, the established sanction mechanisms exclusively address regressions in the process of democratization, which supports the argument that the democracy principle
must be read in a teleological manner rather than in a strict sense.
3. Democracy and the Use of Force
Military intervention in the name of democracy has attracted the most
attention in the literature on democracy in international law. The following analysis focuses on five possible precedents for the use of force to
promote democracy. In doing so, this section compares the unilateral
military interventions of the United States in Grenada, Panama, and Iraq
with the U.N. Security Council-backed interventions in Haiti and Sierra
Leone.
(a) Unilateral Interventions in Grenada, Panama, and Iraq
In response to a coup d’état against the government of Maurice Bishop,
U.S. troops invaded Grenada on October 25, 1983, with the support of
neighboring Caribbean States.252 Three days after the invasion, the U.S.
military succeeded in overthrowing the military council, which had come
to power after the coup.253 In the ensuing debate among legal scholars on
the legality of the U.S. intervention, some argued that restoring democracy was a sufficient legal justification.254 However, there are several facts
250. Act of the AU, supra note 211, art. 3.
251. Banjul Charter, supra note 208, art. 13.
252. John Burgess, Most Residents of Nearby Barbados Appear to Support Grenada
Invasion, WASH. POST, Oct. 29, 1983, at A15.
253. Loren Jenkins, U.S. Forces Seize Fugitive Leader of Grenadan Coup: Barbados
Says Austin Flown to USS Guam, WASH. POST, Oct. 31, 1983, at A1.
254. ROTH, supra note 131, at 309 (noting positive developments following the invasion of Grenada and suggesting that the case of Grenada serves as a positive precedent).
See also FERNANDO R. TESÓN, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW
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THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
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that undercut this position. First, Bishop himself attained power not by
democratic means, but through a coup d’état in 1979.255 Second, the U.S.
administration did not attempt to justify the intervention on the grounds
of restoring democratic order.256 The opinions of academic commentators
alone are insufficient for an opinio juris.257 Finally, and most importantly,
the U.N. General Assembly condemned the intervention as illegal by an
overwhelming majority.258 While resolutions of the General Assembly
are certainly not directly binding, they are an expression of opinio juris
that the U.S. invasion cannot be regarded as a precedent for a right to
pro-democratic intervention.259
The U.S. offensive in Panama is a second possible precedent for the
idea that democracy may justify military intervention.260 On December
20, 1989, the U.S. army invaded Panama in order to overthrow the regime of Manuel Noriega and capture the head of state himself. This time,
President George H.W. Bush explicitly justified the action on the basis of
protecting democracy, in addition to citing the need to protect U.S. citizens, combat drug trafficking, and secure implementation of the Panama
Canal treaties.261 However, the U.N. General Assembly again condemned
AND MORALITY 258 (3rd ed. 2005); William Michael Reisman, Editorial, Coercion and
Self-Determination: Construing Charter Article 2(4), 78 AM. J. INT’L L. 642 (1984) (defending unilateral intervention by arguing that restrictions of Article 2(4) are possible
because of the U.N. Security Council’s lack of effectiveness in many circumstances).
255. L. Doswald-Beck, The Legality of the United States Intervention in Grenada, 24
INDIAN J. INT’L L. 200, 201 (1984).
256. Michael Byers & Simon Chesterman, “You, the People”: Pro-Democratic Intervention in International Law, in DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW,
supra note 123, at 259, 273; Oscar Schachter, The Legality of Pro-Democratic Invasion,
78 AM. J. INT’L L. 645, 648 (1984).
257. Wouters et al., supra note 117, at 169.
258. G.A. Res. 38/7, ¶ 1, U.N. Doc. A/RES/38/7 (Nov. 2, 1983) (“Deeply deplor[ing]
the armed intervention in Grenada, which constitutes a flagrant violation of international
law and of the independence, sovereignty and territorial integrity of that [s]tate”). The
vote was 108-9-27. Byers & Chesterman, supra note 256, at 273 n.64.
259. SCOTT DAVIDSON, GRENADA: A STUDY IN POLITICS AND THE LIMITS OF
INTERNATIONAL LAW 147 (1987); Byers & Chesterman, supra note 256, at 274.
260. TESÓN, supra note 254, at 269; William Michael Reisman, Humanitarian Intervention and Fledging Democracies, 19 FORDHAM INT’L L.J. 794, 800–01 (1995); Abraham D. Sofaer, The Legality of the United States Action in Panama, 29 COLUM. J.
TRANSNAT’L L. 281, 288–91 (1991). But see Anthony D’Amato, The Invasion of Panama
Was a Lawful Response to Tyranny, 84 AM. J. INT’L L. 516, 519 (1990) (referring to the
human rights violations of the Noriega regime and explicitly rejecting the possibility of a
pro-democratic intervention).
261. George Bush, President, Address to the Nation Announcing U.S. Military Action in
Panama, ¶ 2 (Dec. 20, 1989), http://www.presidency.ucsb.edu/ws/print.php?pid=17965.
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the intervention by a clear majority.262 Therefore, the intervention in Panama should likewise not serve as evidence of a right to democracy in
international law.263
The U.S.-led invasion of Iraq in March 2003 is the most recent case in
which regime change was invoked as a justification for war.264 In his
State of the Union address on January 28, 2003, President George W.
Bush declared: “And tonight I have a message for the brave and oppressed people of Iraq: Your enemy is not surrounding your country—
your enemy is ruling your country. And the day he and his regime are
removed from power will be the day of your liberation.”265 Among the
political considerations that finally led to the war, Iraq’s democratization
was a major factor.266 It is telling, though, that in official legal justifications for the war, neither the United States nor Great Britain mentioned
regime change as the principle reason.267 Instead, they justified the intervention by interpreting Resolutions 678,268 687,269 and 1441270 of the
262. G.A. Res. 44/240, ¶ 1, U.N. Doc. A/RES/44/240 (Dec. 29, 1989) (“Strongly deplor[ing] the intervention in Panama by the armed forces of the United States of America,
which constitutes a flagrant violation of international law and of the independence, sovereignty and territorial integrity of states”). The vote was 75-20-40. Byers & Chesterman,
supra note 256, at 275 n.79.
263. Byers & Chesterman, supra note 256, at 275; Louis Henkin, The Invasion of Panama Under International Law: A Gross Violation, 29 COLUM. J. TRANSNAT’L L. 293,
298 (1991); Ved P. Nanda, The Validity of United States Intervention in Panama Under
International Law, 84 AM. J. INT’L L. 494, 500 (1990); John Quigley, The Legality of the
United States Invasion of Panama, 15 YALE J. INT’L L. 276, 303–06 (1990); Sarah A.
Rumage, Panama and the Myth of Humanitarian Intervention in U.S. Foreign Policy:
Neither Legal Nor Moral, Neither Just Nor Right, 10 ARIZ. J. INT’L & COMP. L. 1, 54–57
(1993); Oscar Schachter, Is There a Right to Overthrow an Illegitimate Regime?, in LE
DROIT INTERNATIONAL AU SERVICE DE LA PAIX, DE LA JUSTICE ET DU DEVELOPPEMENT.
MÉLANGES MICHEL VIRALLY. 423, 426–28 (Jean Boulouis & René-Jean Dupuy eds.,
1991).
264. See TESÓN, supra note 254, at 392 (considering humanitarian intervention as the
primary justification of the invasion for Iraq); Davis Brown, Iraq and the 800-Pound
Gorilla Revisited: Good and Bad Faith, and Humanitarian Intervention, 28 HASTINGS
INT’L & COMP. L. REV. 1 (2004); Robert F. Turner, Operation Iraqi Freedom: Legal and
Policy Considerations, 27 HARV. J. L. & PUBL. POL’Y 765, 778 (2004). However, all the
above authors emphasize the human rights violations of Saddam Hussein’s regime. Implicit is the position that the totalitarian form of government alone is not sufficient to
justify an intervention.
265. Press Release, President George W. Bush, President Delivers “State of the Union” (Jan. 28, 2003).
266. James Kurth, Humanitarian Intervention After Iraq, 50 ORBIS 87, 97 (2005).
267. Dino Kritsiotis, Arguments of Mass Confusion, 15 EUR. J. INT’L L. 233, 271, 273–
74 (2004).
268. S.C. Res. 678, U.N. Doc. S/RES/678 (Nov. 29, 1990).
269. S.C. Res. 687, U.N. Doc. S/RES/687 (Apr. 8, 1991).
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THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
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U.N. Security Council respectively.271 Nonetheless, a considerable part
of the international community condemned the intervention. Among its
opponents were Belgium, Canada, China, France, Germany, and Russia.272 Accordingly, the Iraq War also cannot be regarded as support for
the emergence of an international democracy principle.273
(b) Collective Interventions in Haiti and Sierra Leone
In the search for precedents that ground such a norm, collective interventions authorized by international institutions are more promising indicators than the unilateral interventions examined thus far. Many legal
scholars argue that the 1991 intervention in Haiti, which was authorized
by the U.N. Security Council, serves as a paradigmatic precedent.274 In
1990, Jean-Bertrand Aristide was elected as Haiti’s president with sixtyseven percent of the votes.275 The United Nations276 and the OAS277
270. S.C. Res. 1441, U.N. Doc. S/RES/1441 (Nov. 8, 2002).
271. Compare Letter from the Permanent Representative of the United States of
America to the United Nations Addressed to the President of the Security Council, U.N.
Doc. S/2003/351 (Mar. 20, 2003), with Statement by the Attorney General, Lord
Goldsmith, in Answer to a Parliamentary Question (Mar. 18, 2003), available at http://www.
fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1007
029391629&a=KArticle&aid=1047661460790.
272. Elizabeth Bumiller, White House Letter: Who’s Cool at the Group of 8 Meeting
It’s All in Bush’s Gestures, N.Y. TIMES, June 2, 2003, available at http://query.nytimes.
com/gst/fullpage.html?res=9C0DE2DB1230F931A35755C0A9659C8B63&sec=&spon=
&pagewanted=1; Opposition to Iraq War Widens, BBC NEWS, Jan. 23, 2003, http://news.
bbc.co.uk/2/hi/middle_east/2688117.stm; Tracy Wilkinson & Sebastian Rotella, Al Qaeda May Be Widening War of Terror, L.A. TIMES, May 18, 2003, at A1.
273. Michael Bothe, Der Irak-Krieg und das völkerrechtliche Gewaltverbot [The Iraq
War and the Prohibition of the Use of Force in Public International Law], 41 ARCHIV
DES VÖLKERRECHTS 255, 258 (2003) (F.R.G.); Richard A. Falk, What Future for the UN
Charter System of War Prevention?, 97 AM. J. INT’L L. 590, 597 (2003); Mary Ellen
O’Connell, La doctrine américaine et l’intervention en Iraq [The American Doctrine and
the Intervention in Iraq], 49 ANNUAIRE FRANÇAIS DE DROIT INTERNATIONAL 3, 12–14
(2003) (Fr); Andreas Paulus, The War Against Iraq and the Future of International Law:
Hegemony or Pluralism?, 25 MICH. J. INT’L L. 691, 711 (2004); Jason Pedigo, Rogue
States, Weapons of Mass Destruction, and Terrorism: Was Security Council Approval
Necessary for the Invasion of Iraq?, 32 GA. J. INT’L & COMP. L. 199, 223 (2004).
274. TESÓN, supra note 254, at 307–17; Escudero Espinosa, supra note 94, at 375;
Morton H. Halperin & Kristen Lomasney, Guaranteeing Democracy: A Review of the
Record, 9 J. DEM. 134, 138 (1998); Kokoroko, supra note 117, at 52; William Michael
Reisman, Sovereignty and Human Rights in Contemporary International Law, in DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW, supra note 123, at 239, 248.
275. For a detailed account, see Christina M. Cerna, The Case of Haiti Before the Organization of American States, 86 AM. SOC. INT’L L. PROC. 378 (1992).
276. G.A. Res. 45/2, U.N. Doc. A/RES/45/2 (Oct. 10, 1990).
277. A. Schanchetimes, A Real Choice for Haiti’s Voters, L.A. TIMES, Dec. 15, 1990.
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monitored this election at Haiti’s request. On September 29, 1991, the
military overthrew Aristide.278 Though not responding immediately, in
June 1993, the U.N. Security Council adopted Resolution 841, which
imposed economic sanctions on Haiti.279 As a result, Haiti’s military regime concluded the so-called Governors Islands Agreement, in which it
conceded the reinstatement of Aristide to power.280 However, the implementation of the Agreement failed when members of the junta exercised
force against Aristide partisans in the autumn of 1993. In response, the
Security Council set up a naval blockade281 and continued the economic
sanctions.282 On July 31, 1994, it adopted Resolution 940, which permitted
all U.N. Member States to use force to reinstall the legitimate government in Haiti.283 On September 18, 1994, just hours before a multinational troop under U.S. leadership was scheduled to land in Haiti, former
U.S. President Jimmy Carter, with the support of Senator Sam Nunn and
General Colin Powell, convinced the junta to cede power to Aristide and
leave the country.284
Several authors have refused to recognize this case as setting a
precedent for collective pro-democratic intervention, arguing that
through its actions, the Security Council was primarily addressing the
protection of peace and security in the region.285 The response of the
United Nations, however, should be examined within the context of the
Security Council’s new activism during the 1990s. In a series of resolutions, the body broadly interpreted the notion of peace and security in
Chapter VII of the U.N. Charter. The Security Council held that peace
and security do not simply mean the absence of the use of military force.
According to the Council, these two terms may be invoked in the case of
278. Julia Leininger, Democracy and UN Peace-Keeping—Conflict Resolution Through
State-Building and Democracy Promotion in Haiti, 10 MAX PLANCK Y.B. OF U.N. L. 465,
495 (2006).
279. S.C. Res. 841, U.N. Doc. S/RES/841 (June 16, 1993).
280. The Secretary-General, The Situation of Democracy and Human Rights in Haiti:
Report of the Secretary General ¶ 5, U.N. Doc. A/47/975, S/26063 (July 12, 1993) (including the text of the Governor’s Island Agreement)
281. S.C. Res. 875, U.N. Doc. S/RES/875 (Oct. 16, 1993).
282. S.C. Res. 873, U.N. Doc. S/RES/873 (Oct. 13, 1993).
283. S.C. Res. 940, ¶ 4, U.N. Doc. S/RES/940 (July 31, 1994).
284. Jason B. Johnson, Leading Junta Figure Flees the County, BOSTON HERALD, Oct.
5, 1994, at 4.
285. BARDO FASSBENDER, UN SECURITY COUNCIL REFORM AND THE RIGHT OF VETO: A
CONSTITUTIONAL PERSPECTIVE 218 (1998); Byers & Chesterman, supra note 256, at 287.
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THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
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internal crises, such as those in Rwanda and Somalia.286 While formally
respecting the text of the U.N. Charter, the Security Council, with overwhelming support from the legal literature,287 expanded its authority to
cope with the new world order that emerged after the end of the Cold
War. Thus, despite the reference to peace and security in the region,
Resolution 940 was clearly focused on restoring internal order in Haiti.288
Moreover, some scholars have doubted the competence of the U.N.
Security Council to intervene for the purpose of reinstating democratic
order,289 while others have argued that the case of Haiti cannot be generalized because of the specific regional context.290 Some commentators
have even maintained that the general human rights situation in Haiti291
or the violation of the Governors Islands Agreement justified the Security Council resolution.292 However, these objections cannot account for
the fact that the restoration of democracy was the explicit objective of
Resolution 940. This objective is expressed in its preamble:
“[r]eaffirming that the goal of the international community remains the
286. See Hermann-Josef Blanke, Menschenrechte als völkerrechtliche Interventionstitel [Human Rights as a Justification for Intervention Under International Law], 36
ARCHIV DES VÖLKERRECHTS 257, 278–80 (1998) (F.R.G.).
287. TESÓN, supra note 254, at 279; Blanke, supra note 286; Antonio Cassese, Ex
Iniuria Ius Oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, 10 EUR. J. INT’L L. 23, 26–27
(1999); Richard B. Lillich, The Role of the UN Security Council in Protecting Human
Rights in Crisis Situations: UN Humanitarian Intervention in the Post-Cold War World,
3 TUL. J. INT’L & COMP. L. 1 (1995).
288. TESÓN, supra note 254, at 312; Lois E. Fielding, Taking the Next Step in the Development of New Human Rights: The Emerging Right of Humanitarian Assistance to
Restore Democracy, 5 DUKE J. COMP. & INT’L L. 329, 366–69 (1995); Mary Ellen
O’Connell, Regulating the Use of Force in the 21st Century: The Continuing Importance
of State Autonomy, 36 COLUM. J. TRANSNAT’L L. 473, 487–88 (1997).
289. Byers & Chesterman, supra note 256, at 290–92; Douglas Lee Donoho, Evolution
or Expediency: The United Nations Response to the Disruption of Democracy, 29
CORNELL INT’L L.J. 329, 365–67 (1996); Michael J. Glennon, Sovereignty and Community After Haiti: Rethinking the Collective Use of Force, 89 AM. J. INT’L L. 70, 72 (1995).
290. Olivier Corten, La résolution 940 du Conseil de sécurité autorisant une intervention militaire en Haiti: L’émergence d’un principe de légitimité démocratique en droit
international? [Security Council Resolution 940 Authorizing a Military Intervention in
Haiti: The Emergence of a Democratic Legitimacy Principle in International Law?], 6
EUR. J. INT’L L. 116, 129 (1995); Leininger, supra note 278, at 489 (arguing that the intervention in Haiti should not serve as a global precedent because of the specific regional
context).
291. Lillich, supra note 287, at 10. See also KARIN VON HIPPEL, DEMOCRACY BY
FORCE: US MILITARY INTERVENTION IN THE POST-COLD WAR WORLD 98–99 (2000) (noting the human rights violations committed by the Cedras regime).
292. Corten, supra note 290, at 126.
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restoration of democracy in Haiti and the prompt return of the legitimately elected President, Jean-Bertrand Aristide, within the framework of the
Governors Island Agreement.”293 Also, supporting the legitimate government of Haiti plays an important role in its operative part:
1. [The Security Council welcomes] the report of the Secretary-General
of 15 July 1994 (S/1994/828) and takes note of his support for action
under Chapter VII of the Charter of the United Nations in order to
assist the legitimate Government of Haiti in the maintenance of public
order;
[…]
4. Acting under Chapter VII of the Charter of the United Nations, [the
Security Council] authorizes Member States to form a multinational
force under unified command and control and, in this framework, to use
all necessary means to facilitate the departure from Haiti of the military
leadership, consistent with the Governors Island Agreement, the
prompt return of the legitimately elected President and the restoration
of the legitimate authorities of the Government of Haiti, and to establish and maintain a secure and stable environment that will permit implementation of the Governors Island Agreement, on the understanding
that the cost of implementing this temporary operation will be borne by
the participating Member States . . . .294
Although the preamble also refers to the human rights situation in Haiti,295 human rights violations are not the focus of the operative part of the
Resolution, as it concentrates on re-establishing the legitimate order.296
Furthermore, the reference to the Governors Islands Agreement itself is
inessential. It is implausible that the Security Council would have implemented an agreement between a de facto regime and a de jure government irrespective of the latter’s content. The Governors Islands
Agreement was only implemented because the goals of the Agreement
were to restore democratic order to the country. Finally, with regard to
the competence of the Security Council, normative concerns are irrele293. S.C. Res. 940, supra note 283.
294. Id. (emphasis added).
295. Id. (“Gravely concerned by the significant further deterioration of the humanitarian situation in Haiti, in particular the continuing escalation by the illegal de facto regime of systematic violations of civil liberties, the desperate plight of Haitian refugees
and the recent expulsion of the staff of the International Civilian Mission, which was
condemned in its Presidential statement of July 12, 1994.”) (internal parentheses omitted).
296. See, e.g., Corten, supra note 290, at 127 (emphasizing that, in terms of gravity
and intensity, the atrocities in Haiti cannot be compared to those committed in Bosnia,
Rwanda, or Somalia).
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vant when examining practice and opinio juris concerning democracy.297
The crucial point here is that the Security Council Resolution is an indicator of the international community’s reception of the intervention.
Nevertheless, the scope of the Haiti precedent is limited.298 The intervention addressed the restoration of a disrupted, preexisting constitutional order. It cannot be regarded, therefore, as an indicator of a universal
democracy principle. However, it does fit into the patterns already observed in the context of General Assembly resolutions. If the democracy
principle in international law is teleological and process-oriented, then
countries are indeed not obliged to turn into democracies overnight.
Teleology, though, prohibits setbacks in the process of democratization.
If collective interventions, such as the intervention in Haiti, occur after
coups d’état against elected governments, this practice confirms the principle of democratic teleology.
The intervention of Nigeria and ECOWAS in Sierra Leone further
supports this argument. In Sierra Leone, a country plagued by civil war,
the parties to the conflict signed peace accords following the 1996 presidential elections.299 In these elections, Ahmad Tejan Kabbah was voted
president.300 As the Rebel Unity Front were militarily weak and lost the
elections, it signed the Abidjan Accord in November 1996, in which the
parties consented to an immediate ceasefire and the disarmament of the
combatants.301 This agreement did not, however, contribute to a détente.
On the contrary, on May 25, 1997, the President of Sierra Leone was
297. This point also applies to the critique of the democratic intentions of the intervening States. See Richard A. Falk, The Haiti Intervention: A Dangerous World Order
Precedent for the United Nations, 36 HARV. INT’L L.J. 314, 353–54 (1995); Anne Orford,
Muscular Humanitarianism: Reading the Narratives of the New Interventionism, 10 EUR.
J. INT’L L. 679, 701 (1999) (raising such critique in discussing NATO’s intervention in
Kosovo).
298. ROTH, supra note 131, at 386; James Crawford, Democracy in International
Law—A Reprise, in DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW, supra note
123, at 114, 117. Contra John C. Pierce, The Haitian Crisis and the Future of Collective
Enforcement of Democratic Governance, 27 LAW & POL’Y INT’L BUS. 477, 485–96
(1996) (claiming that the Haiti intervention is a full-scale precedent for the emergence of
a right to democratic governance in international law); Fernando R. Tesón, Collective
Humanitarian Intervention, 17 MICH. J. INT’L L. 323, 355 (1996) (regarding the Haiti
intervention as a precedent for the emergence of a full-scale right to democratic intervention).
299. Timeline: Sierra Leone, BBC NEWS, Jun. 18 2008, http://news.bbc.co.uk/2/hi/
africa/country_profiles/1065898.stm.
300. Id.
301. United Nations Mission in Sierra Leone, http://www.un.org/Depts/dpko/missions/
unamsil/background.html (last visited Nov. 14, 2008).
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overthrown.302 This prompted Nigerian troops of the ECOWAS Monitoring Group (“ECOMOG”) to intervene. In June 1997, Nigerian forces
invaded Sierra Leone and helped to reinstate Kabbah as president in
March 1998. The U.N. Security Council only retroactively approved the
intervention. In October 1997, it expressed support for the ECOWAS
action,303 and on March 16, 1998, it welcomed President Kabbah’s return
to office.304
The legal scholarship identifies several justifications for the ECOMOG
intervention, including pro-democratic intervention,305 humanitarian intervention,306 and invitation by the de jure government.307 Some authors
have raised doubts concerning the democratic intentions of the intervening States, noting that Nigeria, the leader of the intervention, was itself
ruled by an autocratic government.308 However, in evaluating the intervention as a precedent for the emergence of a democracy principle, the
reception of the international community is more significant than the intentions of the intervening parties or the legality of the intervention itself.
The Security Council resolutions on Sierra Leone stress the importance
of restoring democratic order. Resolution 1132 requests the military junta
302. Id.
303. S.C. Res. 1132, ¶ 3, U.N. Doc. S/RES/1132 (Oct. 8, 1997) (“Express[ing] its
strong support for the efforts of the ECOWAS Committee to resolve the crisis in Sierra
Leone and encourag[ing] it to continue to work for the peaceful restoration of the constitutional order, including through the resumption of negotiations”).
304. S.C. Res. 1156, S/RES/1156 (Mar. 16, 1998) (“Welcom[ing] the return to Sierra
Leone of its democratically elected president on 10 March 1998”).
305. Valentina Grado, Il ristabilimento della democrazia in Sierra Leone [Restoring
Democracy in Sierra Leone], 83 RIVISTA DI DIRITTO INTERNAZIONALE 361, 395 (2000)
(Italy) (basing her argument on the defense of the internal dimension of the right to selfdetermination rather than on an explicit defense of democracy); Jeremy Levitt, Humanitarian Intervention by Regional Actors in Internal Conflicts: The Cases of ECOWAS in
Liberia and Sierra Leone, 12 TEMP. INT’L & COMP. L.J. 333, 370 (1998).
306. Lee F. Berger, State Practice Evidence of the Humanitarian Intervention Doctrine: The ECOWAS Intervention in Sierra Leone, 11 IND. INT’L & COMP. L. REV. 605,
626–32 (2001); Marco Gestri, ECOWAS Operations in Liberia and Sierra Leone: Amnesty for Past Unlawful Acts or Progress Toward Future Rules?, in REDEFINING SOVEREIGNTY: THE USE OF FORCE AFTER THE COLD WAR 211, 247 (Michael Bothe et al. eds.,
2005).
307. Matthias Goldmann, Sierra Leone: African Solutions to African Problems?, 9
MAX PLANCK Y.B. OF U.N. L. 457, 471–72 (2005); Karsten Nowrot & Emily W. Schabacker, The Use of Force to Restore Democracy: International Legal Implications of the
ECOWAS Intervention in Sierra Leone, 14 AM. U. INT’L L. REV. 321, 401–02 (1998).
308. Byers & Chesterman, supra note 256, at 290; Goldmann, supra note 307, at 473–
74.
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THE PRINCIPLE OF DEMOCRATIC TELEOLOGY
81
to reinstate democratic order,309 while Resolution 1156 welcomes the
country’s return to democracy.310 Therefore, the case of Sierra Leone,
confirms the patterns already observed with regard to Haiti. The international community views the overthrow of an elected government as a
violation of international law,311 and this supports the existence of a principle of democratic teleology in international law.
4. Resume
International law does not provide for a strict right to democratic
governance, as international documents and corresponding practice emphasize the process-oriented character of democratization. Democracy,
rather, is perceived as a teleological principle, according to which States
and societies are obliged to develop towards democracy. This principle
has two dimensions. First, it is directed against regressions in the process
of democratization. Obvious setbacks are military coups. This is underlined by the practice of the U.N. Security Council, which endorsed military
action after elected governments were overthrown in Haiti and Sierra
Leone and by the sanction mechanisms of the OAS and the AU.
Regressions, though, are not limited to coups d’état. They also encompass other setbacks in the process towards and consolidation of democracy, such as increased centralization of power by heads of state or the
cession of political control to the military. Examples include the 1992
autogolpe of Alberto Fujimori in Peru and the 1995 “constitutional referendum” of Alexander Lukashenko in Belarus.312 In particular, this is
reflected in the sanctioning practice of the OAS and, to a certain extent,
in that of the AU. Both organizations have the power to impose sanctions
not only for military coups, but also for other efforts to erode democracy.
Regional institutions have shown reluctance to act in cases where formal
elections have been held, but election results have been falsified by undue influence. In theory, such cases should constitute setbacks in the
process of democratization, which run counter to the principle of democratic teleology.
Democratic teleology is not merely concerned with avoiding setbacks
and regressions. It also imposes a second obligation whereby States must
309. S.C. Res. 1132, supra note 303, ¶ 1 (“Demand[ing] that the military junta take
immediate steps to relinquish power in Sierra Leone and make way for the restoration of
the democratically-elected Government and a return to constitutional order”).
310. See supra note 304.
311. See ROTH, supra note 131, at 393.
312. See Laurence Whitehead, The Consolidation of Fragile Democracies: A Discussion with Illustrations, in DEMOCRACY IN THE AMERICAS: STOPPING THE PENDULUM 76,
76–95 (Robert A. Pastor ed., 1989) (providing further examples from Latin America).
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actively develop towards democracy and then consolidate democratic
institutions. As an ideal type of democracy as well as an ideal method of
democratization are lacking, this duty does not require specific performance. Governments have a certain margin of flexibility, and only clearly
defective strategies can be regarded as illegal. In order to assess strategies, the same classification proposed in the context of the principle of
self-determination may be used.313 According to this proposal, regimes
that are not self-enriching and that observe core human rights principles
should be considered legal and legitimate.
CONCLUSION
Nearly two decades after the fall of the Berlin Wall, the euphoria surrounding democracy has cooled down considerably. Democracy is not
the cure-all it was widely considered to be. Moreover, the third wave of
democratization in the early 1990s314 was much weaker in the end than
many observers had predicted. Although there is near consensus in philosophy and political sciences that, in the long run, there can be no suitable alternative to democracy as a form of government, democratization is
not a simple change of the political status. Instead, it is a long-term,
complex, social process, and its preconditions are still very much debated
in social science research.
This contribution attempts to address these concerns by framing democracy as a teleological principle. In international law, democracy is
neither an absolute right nor a strict obligation. The identified norm, rather, focuses on the process-like character of democratization. States are
merely obliged to develop towards democracy. This understanding of the
democratic principle in international law better comports with existing
legal documents, which use process-oriented rather than prescriptive language. What constitutes concrete development in the process of democratization is, to a considerable extent, subject to a State’s own discretion.
Due to the binary character of legal norms, though, lawyers prefer
clear standards. Karl-Heinz Ladeur once offered a metaphor where he
compared the law to a blind man who uses “a stick to test the stability of
the ground on which he walks.”315 Throughout this process, the man distinguishes between stable and unstable ground.316 In so doing, he creates
a system of orientation without being able to evaluate the world in its
313. See supra Part II.A.2.
314. HUNTINGTON, supra note 36, at 280.
315. Karl-Heinz Ladeur, The Theory of Autopoiesis as an Approach to a Better Understanding of Postmodern Law: From the Hierarchy of Norms to the Heterarchy of Changing Patterns of Legal Inter-Relationships 12 (EUI Working Paper Law No. 99/3. 1999).
316. Id.
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entire complexity.317 Lawyers act in a similar fashion when they merely
ask about the legality or illegality of actions or conditions. In this context, they need standards that allow them to make clear binary distinctions. The stricter the legal standards are, the higher the determinacy of
the legal norms. Against this background, the principle of democratic
teleology fails to meet the standards most legal scholars favor. Whether a
State has held elections or not is a question of fact that can be answered
quite easily.318 In contrast, whether a government acts in the interests of
its population requires difficult normative evaluations.
Nonetheless, strict normative standards do not always take into account
the complexity of reality. Martti Koskenniemi has argued that the “indeterminacy” of norms is inherent to international legal principles.319 According to Koskenniemi, absolute legal standards are always over- or
under-inclusive.320 International law thus suffers from an inherent tension
between determinacy and justice. The more determinate the legal standards are, the less apt they are to take into account the complexity of
reality. Alternatively the more they adjust to complexity, the less determinate they are. In particular, as the effectiveness of international law
depends upon its level of acceptance in the international community, international law cannot afford to impose strict standards. It must apply to
circumstances and strategies as diverse as global democratization itself.
Francis Fukuyama’s diagnosis of “the end of history”321 is premature.
Democracy still has a long way to go, and this is reflected by the present
state of international law. In the legal debate of the 1990s, even those
authors who favored democratic entitlement did not claim the existence
of an unconditional right to democratic governance.322 Instead, most of
them identified a democratic trend,323 or most famously, an “emerging
317. Id.
318. See Marks, supra note 11, at 87 (suggesting that this is likely why the discussion
on the right to democratic governance is dominated by a static concept of democracy
focused only on elections). However, it is important to mention that this question is not
totally free of normative considerations either, given that judging elections as free and
fair requires some assessment. Guillermo O’Donnell, Illusions About Consolidation, 7.2
J. DEM. 34, 45 (1996).
319. MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF THE
INTERNATIONAL LEGAL ARGUMENT 590–96 (2005).
320. Id. at 591.
321. FUKUYAMA, supra note 2.
322. Gregory H. Fox & Brad R. Roth, Introduction: The Spread of Liberal Democracy
and its Implications for International Law, in DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW, supra note 123, at 1, 13.
323. Rich, supra note 117, at 33.
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right to democratic governance.”324 As the present Article has argued,
this position should be reformulated: international law contains a principle of democratic teleology, namely, a right to the emergence of democratic governance.
324. Franck, supra note 3.
CIVIL SOCIETY AND THE LEGITIMACY OF
THE WTO DISPUTE SETTLEMENT SYSTEM
Yuka Fukunaga*
INTRODUCTION
T
he legitimacy of a rule or an institution is important because it
may encourage voluntary compliance with the rule or the institution’s decisions, while the lack of legitimacy may be used as an excuse
for noncompliance.1 Legitimacy is especially critical within the context
of international law, as the international community lacks effective enforcement tools.2 This Article focuses on the legitimacy of the World
Trade Organization’s (“WTO”) dispute settlement system.3 As the coverage of the WTO Agreement4 expands and its enforcement intensifies,
its impact on the lives of citizens becomes more extensive and profound.
The dispute settlement system has been criticized for enforcing the WTO
Agreement without due regard to the nontrade interests and values of
civil society.5 Given that citizens have become important stakeholders in
international trade disputes, critics demand that the dispute settlement
system reflect the concerns of not only States and businesses, but also
civil society.
* Associate Professor, School of Social Sciences, Waseda University. This research
is partly funded by the Grant-in-Aid for Scientific Research of the Ministry of Education,
Culture, Sports, Science, and Technology (Japan). I would like to extend my sincere gratitude to Professor Junji Nakagawa and Professor Akira Kotera, who gave me valuable
insights and comments.
1. MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY
212–16 (Ephraim Fischoff et al. trans., 1978).
2. THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS 27–40 (1990).
3. The WTO was established in 1995 as a result of the Uruguay Round, the last
round of trade negotiations under the General Agreement on Tariffs and Trade. WORLD
TRADE ORG., THE WORLD TRADE ORGANIZATION IN BRIEF 3 (2007), http://www.wto.org/e
nglish/res_e/doload_e/inbr_e.pdf. The WTO has 153 member nations, and this accounts
for approximately 97% of world trade. Id. at 7. The WTO’s dispute settlement system,
the WTO’s procedure for resolving trade quarrels, is instrumental in enforcing WTO
rules and “ensuring that trade flows smoothly.” Id. at 5. Nearly 400 disputes have been
brought before the dispute settlement system, and almost 300 rulings (including panel
and Appellate Body reports and arbitration awards) have been issued. WTO Dispute Settlement: Basic Facts and Figures, http://www.worldtradelaw.net/dsc/database/basicfigures.asp.
(last visited Nov. 18, 2008).
4. General Agreement on Tariffs and Trade—Multilateral Trade Negotiations (The
Uruguay Round): Final Act Embodying the Results of the Uruguay Round of Trade Negotiations, Dec. 15, 1993, 33 I.L.M. 1 [hereinafter WTO Agreement]. The WTO Agreement includes the Marrakesh Agreement and the other agreements in its annexes.
5. See infra note 80 and accompanying text.
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There are many existing proposals on how to legitimize the dispute
settlement system in civil society. Some proposals introduce innovative
concepts such as “constitutionalism,” 6 “democracy,” 7 and “governance,”8 while others focus on specific revisions to the dispute settlement system, such as the acceptance of unsolicited amicus curiae briefs
and the incorporation of nontrade values.9 Despite the divergence of
views, most of the proposals maintain that the dispute settlement system
should directly reflect the diverse interests and values of citizens so as to
be perceived legitimate by civil society.
While the primary question scholars have asked is how this can be accomplished, in the author’s view, there are more fundamental questions
to be addressed. In the first place, why does the dispute settlement system, an intergovernmental trade tribunal, need to respond to civil society’s demand for legitimacy? Does enhanced legitimacy as perceived by
civil society also improve the overall legitimacy of the system? Furthermore, even if such legitimacy needs to be taken into account, is the dispute settlement system suitable for and capable of directly representing
and coordinating the various concerns of civil society?
Responding to these questions, this Article is organized as follows:
Part I analyzes several key sources of legitimacy in the dispute settlement system and demonstrates that there is a conflicting relationship
6. See, e.g., DEBORAH Z. CASS, THE CONSTITUTIONALIZATION OF THE WORLD TRADE
ORGANIZATION: LEGITIMACY, DEMOCRACY, AND COMMUNITY IN THE INTERNATIONAL
TRADING SYSTEM (2005); CONSTITUTIONALISM, MULTILEVEL TRADE GOVERNANCE AND
SOCIAL REGULATION (Christian Joerges & Ernst-Ulrich Petersmann eds., 2006); THE EU
AND THE WTO: LEGAL AND CONSTITUTIONAL ISSUES (Gráinne de Búrca & Joanne Scott
eds., 2001).
7. See, e.g., Jeffery Atik, Democratizing the WTO, 33 GEO. WASH. INT’L L. REV. 451
(2001); Robert Howse, Democracy, Science, and Free Trade: Risk Regulation on Trial at
the World Trade Organization, 98 MICH. L. REV. 2329 (2000); Americo Beviglia Zampetti, Democratic Legitimacy in the World Trade Organization: The Justice Dimension,
37 J. WORLD TRADE 105 (2003). Without defining the terms, this Article discusses the
substance of constitutionalism and democracy to the extent that these concepts are relevant. It should be noted that these terms have been developed in the domestic sphere and
that there is always a risk of incorporating such terms into the international sphere. J.H.H.
WEILER, THE CONSTITUTION OF EUROPE: “DO THE NEW CLOTHES HAVE AN EMPEROR?”
AND OTHER ESSAYS ON EUROPEAN INTEGRATION 270 (1999).
8. See, e.g., TOMER BROUDE, INTERNATIONAL GOVERNANCE IN THE WTO: JUDICIAL
BOUNDARIES AND POLITICAL CAPITULATION (2004); Andrew T. Guzman, Global Governance and the WTO, 45 HARV. INT’L L.J. 303 (2004).
9. See, e.g., Steve Charnovitz, Participation of Nongovernmental Parties in the
World Trade Organization, 17 U. PA. J. INT’L ECON. L. 331 (1996); Daniel C. Esty,
Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion, 1 J. INT’L ECON. L. 123 (1998) [hereinafter Esty, Non-Governmental Organizations].
2008]
CIVIL SOCIETY AND LEGITIMACY
87
among the various sources of legitimacy. Part II examines civil society’s
demand for legitimacy and discusses various proposals that seek to set
forth how this demand can be fulfilled in the dispute settlement system.
While recognizing the growing significance of civil society in the context
of international trade, this section criticizes these proposals and shows
how they might impair the overall legitimacy of the system. Part III discusses alternative ways of legitimizing the dispute settlement system as
perceived by civil society. Underscoring that the dispute settlement system is merely part of the plural international and domestic legal orders,
this section argues that the interests and values of civil society should be
considered and reflected in different domains, both WTO and non-WTO,
and at international, regional, national, and local levels.
I. SOURCES OF LEGITIMACY IN THE DISPUTE SETTLEMENT SYSTEM
In defining legitimacy, it is helpful to distinguish between two different types of legitimacy—objective and subjective.10 Objective legitimacy follows from the actual properties of a rule or institution.11 For example, an international treaty is objectively legitimate when its text clearly
articulates what the contracting States have agreed to. Likewise, an international institution is objectively legitimate when its structure effectively helps to achieve its goals. Subjective legitimacy arises from the
perceptions of a rule or institution by those affected by the rule or institution.12 In particular, the perceptions by States, expressed by their consent
(or the lack thereof) to a rule or institution, determine the subjective legitimacy of the rule or institution.13 Although objective and subjective legitimacy spring from different sources, these two types of legitimacy
may affect one another. For example, if a rule or institution is ineffective,
a State may refuse to consent to the rule or institution.
What confers legitimacy, either in an objective or subjective sense, varies across areas of international law and over the course of time.14 State
10. See Henry H. Perritt, Jr., Structures and Standards for Political Trusteeship, 8
UCLA J. INT’L L. & FOR. AFF. 385, 424–25 (2003).
11. See FRANCK, supra note 2, at 24 (discussing legitimacy as a property of an institution’s rules or rulemaking process that pulls actors towards compliance).
12. See FRANCK, supra note 2, at 25 (noting that an actor’s perception of a rule’s or
institution’s legitimacy will dictate the extent to which the actor complies).
13. David D. Caron, The Legitimacy of the Collective Authority of the Security Council, 87 AM. J. INT’L L. 552, 558–59 (1993).
14. For example, scientific expertise is an essential source of legitimacy in making
and enforcing regulations on whaling. David Caron, The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of
Coercion in Consensual Structures, 89 AM. J. INT’L L. 154, 159–63 (1995). However, the
legitimacy argument once demanded the universal participation of the interested States
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consent is a primary, though implicit, source of legitimacy in international law. Under the principle of pacta sunt servanda, when States consent to an international rule, they accept its legitimacy and agree to
comply with it.15 As state consent was traditionally viewed as the exclusive source of legitimacy in international law, legitimacy was not explicitly discussed as distinct from state consent until recently.16 Despite the
continuing importance of state consent, there is a growing belief in the
international community that state consent is insufficient to persuade
States of the legitimacy of an international rule or institution.17 There are
several explanations for this new trend.18
First, the structure of international law is changing to include not only
the law of coexistence, but also the law of cooperation.19 Consequently,
an international law rule or institution must address new situations in a
manner that differs from the texts of the treaties and agreements to which
States have consented. Something in addition to state consent is necessary to legitimize the subsequent evolution of an international law rule or
in the Antarctic Treaty System. Richard Falk, The Antarctic Treaty System: Are There
Viable Alternatives?, in THE ANTARCTIC TREATY SYSTEM IN WORLD POLITICS 399, 412
(Arnfinn Jorgensen-Dahl & Willy Ostreng eds., 1991). In the context of the European
community, one scholar has suggested that in the process of European integration, the
sources of legitimacy have been expanded to include not only a democratic foundation,
but also a “broad, empirically determined societal acceptance.” J.H.H. Weiler, The
Transformation of Europe, 100 YALE L.J. 2403, 2468–74 (1991) [hereinafter Weiler,
Transformation].
15. Vienna Convention on the Law of Treaties art. 26, May 23, 1969, 1155 U.N.T.S.
331 [hereinafter Vienna Convention] (defining pacta sunt servanda as the principle that
binds parties to an agreement and ensures performance of its terms in good faith). See
also Daniel Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?, 93 AM. J. INT’L L. 596, 604 (1999) (discussing consent).
16. See Allen Buchanan & Robert O. Keohane, The Legitimacy of Global Governance Institutions, 20 ETHICS & INT’L AFF. 405, 412–13 (2006) (discussing state consent
as a measure of legitimacy and referring to this standard as the “International Legal Pedigree View” of legitimacy); id. at 417–18 (noting characteristics of legitimacy that must
be assessed independent of democratic state consent). See also IAN HURD, AFTER
ANARCHY: LEGITIMACY AND POWER IN THE UNITED NATIONS SECURITY COUNCIL 5–7
(2007) (stating that consent does not fully explain state behavior).
17. See, e.g., Bodansky, supra note 15, at 606–11, 623–24; Joshua Meltzer, State
Sovereignty and Legitimacy of the WTO, 9336 U. PA. J. INT’L ECON. L. 693, 693–94
(2005); Weiler, Transformation, supra note 14, at 2468–69.
18. Mattias Kumm, The Legitimacy of International Law: A Constitutionalist
Framework of Analysis, 15 EUR. J. INT’L L. 907, 912–15 (2004) (arguing that the development of international law as governance blurs the distinction between national and
international law and consequently leads to the issue of democratic legitimacy).
19. WOLFGANG FRIEDMANN, THE CHANGING STRUCTURE OF INTERNATIONAL LAW
60–71 (1964).
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institution. Second, the coverage of international law has expanded to
include nonstate actors. A State may be prevented from complying with
an international law rule if its people do not consider the rule legitimate.20 Thus, legitimacy needs to be ensured from the perspective of
nonstate actors within the State.21 Finally, international tribunals have
begun to play a more important role in interpreting international law
rules, a role that in the past was fulfilled by States alone.22 These tribunals may be remote from the control of state consent, and this raises concerns about the legitimacy of their interpretations as well as the tribunals
themselves.
Having recognized the significance of legitimacy in international law,
it remains to be examined what, in addition to state consent, confers legitimacy to international law. The composition of additional sources of
legitimacy and the significance of each may even vary within a single
institution.23 The following subsections examine major sources of objective and subjective legitimacy in the dispute settlement system.24 The
chief purpose of this Section is not to create an exhaustive list of legiti-
20. Harold K. Jacobson & Edith Brown Weiss, Strengthening Compliance with International Environmental Accords: Preliminary Observations from a Collective Project,
1 GLOBAL GOVERNANCE 119, 142 (1995).
21. Bodansky, supra note 15, at 610–11.
22. Ian Johnstone, Treaty Interpretation: The Authority of Interpretive Communities,
12 MICH. J. INT’L L. 371, 372, 385 (1991).
23. Such variety exists within the WTO as well. In trade liberalization negotiations,
the involvement of every Member State is strongly preferred in order to ensure the legitimacy of the negotiations. For example, developing countries are encouraged to participate in the current services negotiations through the submission of any kind of liberalization requests and offers. Special Session of the Council for Trade in Services, Guidelines
and Procedures for the Negotiations on Trade in Services, ¶¶ 1–2, S/L/93 (Mar. 29,
2001). What matters here is not the substance of liberalization commitments, but rather
the fact that all the members are involved in the liberalization process. Id. On the other
hand, in the Trade Policy Review Mechanism (“TPRM”), the completeness and accuracy
of information is more critical than the attendance and remarks of every member at
TPRM meetings. Julien Chaisse & Debashis Chakraborty, Implementing WTO Rules
Through Negotiations and Sanctions: The Role of Trade Policy Review Mechanism and
Dispute Settlement System, 28 U. PA. J. INT’L ECON. L. 153, 158–63 (2007). The most
remarkable example of such variety can be illustrated by the difference between the decision-making procedure in the negotiations and that in the dispute settlement system. The
former adopts the consensus approach, whereas the latter adopts the negative consensus
approach, and not without reason. See WORLD TRADE ORG., UNDERSTANDING THE WTO
57, 101 (2007), http://www.wto.org/english/thewto_e/whatis_e/tif_e/understanding_e.pdf
[hereinafter UNDERSTANDING THE WTO].
24. Bodansky, supra note 15, at 601–02.
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macy sources,25 but rather to reveal the relative value of each.26 This
analysis will show that the overall legitimacy of the dispute settlement
system is achieved through a delicate balance among its various legitimacy sources.
A. Objective Legitimacy
There are four indispensable factors that confer objective legitimacy to
the dispute settlement system: independence, transparency, authority, and
effectiveness.27 Regarding the first,28 impartial rulings made by independent tribunal members help ensure that no political or special interest
groups prejudice rulings in favor of one party. Transparency, also an essential source of objective legitimacy in the dispute settlement system,
fosters its impartiality by enabling the public to monitor the adjudication
of disputes.29 The third source is the authority of the system.30 Unless
25. Scholars have attempted to draw a list of legitimacy sources in and outside the
context of the WTO. See, e.g., Daniel C. Esty, Good Governance at the Supranational
Scale: Globalizing Administrative Law, 115 YALE L.J. 1490, 1515–22 (2006) [hereinafter
Esty, Good Governance]; Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory
of Effective Supranational Adjudication, 107 YALE L.J. 273, 298–337 (1997); Robert
Howse, Adjudicative Legitimacy and Treaty Interpretation in International Trade Law:
The Early Years of WTO Jurisprudence, in THE EU, THE WTO AND THE NAFTA:
TOWARDS A COMMON LAW OF INTERNATIONAL TRADE 35, 41–68 (J.H.H. Weiler ed.,
2000); Kumm, supra note 18, at 917–27.
26. A factor that enhances objective legitimacy could undermine subjective legitimacy and vice versa. Moreover, the sources of legitimacy of the dispute settlement system
do not necessarily ensure the legitimacy of other branches of the WTO, or the WTO as a
whole. BROUDE, supra note 8, at 57–73; Joost Pauwelyn, The Transformation of World
Trade, 104 MICH. L. REV. 1, 50–56 (2005) [hereinafter Pauwelyn, Transformation]. But
see Philip M. Nichols, GATT Doctrine, 36 VA. J. INT’L L. 379, 458–65 (1996).
27. These sources of objective legitimacy are merely illustrative. There can be other
sources of objective legitimacy in the dispute settlement system, although this Article
does not discuss them.
28. Ruth Mackenzie & Philippe Sands, International Courts and Tribunals and the
Independence of the International Judge, 44 HARV. INT’L L.J. 271, 276–84 (2003). But
see Eric A. Posner & John C. Yoo, Judicial Independence in International Tribunals, 93
CALIF. L. REV. 1, 29–54 (2005) (statistically analyzing the practices of international tribunals, including the WTO, and rejecting the correlation between the independence and
the effectiveness of the tribunals).
29. Ronald B. Mitchell, Sources of Transparency: Information Systems in International Regimes, 42 INT’L STUD. Q. 109, 109–11 (1998); Joel P. Trachtman & Philip M.
Moremen, Costs and Benefits of Private Participation in WTO Dispute Settlement:
Whose Right Is It Anyway?, 44 HARV. INT’L L.J. 221, 248 (2003).
30. Bodansky, supra note 15, at 605–06 (discussing authority in terms of legality and
legitimacy). In this Article, “authority” signifies the legal validity of the jurisdictional
basis and findings of the panels and the Appellate Body.
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panel and Appellate Body reports are based on a valid jurisdictional basis
and legally sound findings, the reports will lack the power to induce the
responding party to comply. Finally, the dispute settlement system cannot be objectively legitimate unless it is effective in achieving its institutional goals, the most primary of which is the resolution of disputes.31
These sources of objective legitimacy may conflict with one another,
and each source contributes to the overall legitimacy of the system to a
different degree. Placing greater emphasis on one legitimacy source
could conflict with another source and thus lower the overall legitimacy
of the system. Thus, we need to be aware of the different importance of
each source when we emphasize or de-emphasize one source over others.
A fine balance among these sources of legitimacy bestows overall objective legitimacy to the dispute settlement system.
This can be illustrated by the relationship between independence and
transparency. The WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”) sets forth detailed provisions regarding the independence of the tribunals’ composition and deliberations.32 The DSU thereby ensures that the proceedings of the dispute
settlement system are free from any undue influence of interested parties33 or WTO political divisions, such as the Dispute Settlement Body
(“DSB”).34 However, the dispute settlement system has often been criti31. Ian Johnstone, Legislation and Adjudication in the UN Security Council: Bringing
Down the Deliberative Deficit, 102 AM. J. INT’L L. 275, 277–78 (2008) (discussing deliberation as a means to achieve legitimacy). There is an interdependent relationship between the effectiveness of a rule or institution and the legitimacy of a rule or institution.
While the effective resolution of disputes is a fundamental source of legitimacy in the
dispute settlement system, the legitimacy of the system helps ensure effective dispute
resolution. Caron, supra note 13, at 558–61 (“[P]erceptions of illegitimacy may work
against the effectiveness of the Security Council.”).
32. Understanding on Rules and Procedures Governing the Settlement of Disputes,
arts. 8.2, 8.9, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125
(1994) [hereinafter DSU]. See also WTO Dispute Settlement, Working Procedures for
Appellate Review, art. 6.2, WT/AB/WP/5 (Jan. 4, 2005).
33. There is an exception wherein the parties are allowed to oppose the composition
of panelists proposed by the WTO Secretariat if they have “compelling reasons” to do so.
DSU, supra note 32, art. 8.6. In this manner, the parties can exert some influence over the
selection of panelists. This frequently invoked exception is justified in order to make the
selection legitimate from the perspective of the parties.
34. The DSB, comprised of all WTO member governments, is authorized to decide to
establish a panel and adopt a panel report. DSU, supra note 32, art. 6.1 (regarding the
establishment of panels); id. art. 16 (regarding the adoption of reports). Under the negative consensus approach, such decisions are made automatically and the authority of the
DSB is nominal. See UNDERSTANDING THE WTO, supra note 23, at 56. The influence of
member governments would grow if their authority was made effective. Special Session
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cized for its serious lack of transparency. The DSU states that the deliberations of the tribunals shall be kept confidential35 and that unless a
party to a dispute decides to disclose its submissions to the public, written submissions to the tribunals shall remain confidential.36 While critics
have suggested that the legitimacy of the dispute settlement system
should be improved by enhancing its transparency,37 this suggestion
overlooks how transparency and independence may conflict with each
other.
In some cases, the system’s transparency may enhance its independence. For example, the publication of party submissions may prevent
the tribunals from considering exogenous factors, such as political factors, that are not included in the submissions. Nevertheless, the transparency of the dispute settlement system may clash with its independence.38
For example, transparency might open the way for various actors to influence dispute settlement proceedings.39 Public attendance and media
coverage of tribunal meetings might sway panelists and Appellate Body
members in favor of one of the parties and could thereby impair their
independence. In addition, the requirement to publicize all party submissions might encourage the disputing parties to settle a dispute outside the
dispute settlement system. Thus, there is a conflicting relationship between the transparency and independence of the dispute settlement system, and these two sources must be balanced to achieve greater objective
legitimacy.
A similar relationship exists between the system’s authority and effectiveness. The jurisdictional basis of a panel to adjudicate disputes is esof the Dispute Settlement Body, Revised Textual Proposal by Chile and the United
States: Flexibility and Member Control, TN/DS/W/89 (May 31, 2007) (proposing the
so-called “partial adoption” procedure).
35. DSU, supra note 32, arts. 14, 17.10.
36. Id. art. 18.2.
37. See, e.g., Steve Charnovitz, Nongovernmental Organizations and International
Law, 100 AM. J. INT’L L. 348, 365–68 (2006) [hereinafter Charnovitz, Nongovernmental
Organizations]; Esty, Good Governance, supra note 25, at 1544–47.
38. The position of the DSU is that the independence of the dispute settlement system
should be prioritized over the transparency of the system. DSU, supra note 32, arts. 8.2,
14, 17 (Article 8.2 explicitly calls for the selection of independent panel members, while
Articles 14 and 17 require the confidentiality of both the panel and the Appellate Body
proceedings, thereby subverting transparency.). The dispute settlement system is relatively open, at least for members, in that a member can easily intervene in dispute settlement proceedings either as a co-complaining party or as a third party. Yuji Iwasawa,
WTO Dispute Settlement as Judicial Supervision, 5 J. INT’L ECON. L. 287, 300–03 (2002)
(pointing out the liberal approach of WTO panels in permitting intervention by nonparty
WTO members).
39. Trachtman & Moremen, supra note 29, at 228.
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tablished at a DSB meeting upon a request filed by the complaining party
and the scope of the panel’s jurisdiction is limited to the specific facts
and WTO provisions explicitly mentioned in the request.40 On the one
hand, this restraint on the panel’s authority may be justified because it
enables the panel and the parties to focus on specifically defined issues,
and to develop and refine factual and legal arguments. On the other hand,
limited jurisdiction may prevent the panel from considering changes in
circumstances subsequent to a panel request,41 or the broader context of
a dispute.42 As a result, a panel may fail to provide an effective solution
to the overall dispute between the parties. In practice, when defining its
jurisdictional scope, a panel must attain a balance between the need to
restrain its authority and the need to resolve a dispute effectively.
B. Subjective Legitimacy
Subjective legitimacy arises from the views of stakeholders in trade
disputes.43 Most importantly, it refers to legitimacy as perceived by
governments, particularly those of disputing parties. 44 The WTO
Agreement expressly provides for the rights and obligations of governments, and it is the governments of the disputing parties that owe obligations resulting from the settlement of disputes.45 Thus, a government
may refuse to comply with a dispute settlement decision if it considers
the decision or the dispute settlement system itself to be illegitimate.46
40. DSU, supra note 32, arts. 6–7.
41. According to the Appellate Body, factual developments subsequent to the panel
establishment can fall within the panel’s jurisdiction provided the developments did not
change the essence of the original measure identified in the panel request. Appellate
Body Report, Chile—Price Band System and Safeguard Measures Relating to Certain
Agricultural Products, ¶¶ 135–44, WT/DS207/AB/R (Sept. 23, 2002). See also Panel
Report, India—Measure Affecting the Automotive Sector, ¶¶ 7.23–.37, 8.14–.30,
WT/DS146/R, WT/DS175/R (Dec 21, 2001).
42. In a recent WTO dispute, the Appellate Body refused to adjudicate non-WTO
issues even though the issues before the Appellate Body were only a part of the broader
dispute between the parties. Appellate Body Report, Mexico—Tax Measures on Soft
Drinks and Other Beverages, ¶ 78, WT/DS308/AB/R (Mar. 6, 2006) [hereinafter Mexico—Soft Drinks].
43. As actors in the WTO’s dispute settlement system, the views of the stakeholders
will determine the degree of legitimacy conferred on the institution. See HURD, supra note
16, at 7 (discussing the subjective facet of legitimacy, generally, as “an actor’s normative
belief that a rule or institution ought to be obeyed”).
44. See id. (examining how an actor’s “perception” of an institution and its rules will
affect behavior).
45. See, e.g., DSU, supra note 32, arts. 3.2, 19.1.
46. DSU, supra note 32, art. 19.1. But cf. Hansel T. Pham, Developing Countries and
the WTO: The Need for More Mediation in the DSU, 9 HARV. NEGOT. L. REV. 331, 352
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The subjective legitimacy of the system also depends upon the perceptions of businesses.47 Although they do not have immediate legal obligations under the dispute settlement system, businesses are deeply affected
by the economic effects of trade disputes. However, unlike the subjective
legitimacy on the part of governments, legitimacy as perceived by businesses is not directly reflected in the structure of the dispute settlement
system. For example, businesses are not allowed to bring a case directly
to the dispute settlement system. 48 If they wish to file a complaint
against a WTO member, they need to persuade their government to do
so.49 In addition, businesses cannot attend panel and Appellate Body
meetings, even if their vital interests are involved in a dispute.50 While
the intergovernmental nature of the WTO may explain the exclusion of
businesses from dispute settlement proceedings, 51 it may appear to
businesses that the statist approach deprives them of the right to advance
their economic interests directly before the WTO.52 Nevertheless, busi(2004) (analyzing the DSU’s inability to enforce its decisions by means other than “allowing the complaining party to erect retaliatory trade barriers against the offending party
until the offending party complies with the ruling”).
47. G. Richard Shell, Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization, 44 DUKE L.J. 829, 877–86 (1995) (arguing that in
an “Efficient Market Model” of international trade dispute resolution, “governments and
businesses that favor free trade may circumvent domestic protectionist groups and increase the world’s wealth” through international trade laws and tribunals). See also Panel
Report, United States—Sections 301–310 of the Trade Act of 1974, ¶¶ 7.71–.94,
WT/DS152/R (Dec. 22, 1999) (stating that the objects and purposes of Article 23 of the
DSU are “the creation of market conditions conducive to individual economic activity in
national and global markets and . . . the provision of a secure and predictable multilateral
trading system”).
48. GREGORY C. SHAFFER, DEFENDING INTERESTS: PUBLIC-PRIVATE PARTNERSHIPS IN
WTO LITIGATION 15 (2003).
49. See id. at 31–50 (describing the “public-private collaboration” that allows the
interests of private firms a point of entry into the DSB).
50. DSU, supra note 32, app. 3 (“The panel shall meet in closed session. The parties
to the dispute, and interested parties, shall be present at the meetings only when invited
by the panel to appear before it.”).
51. In international investment arbitrations, private businesses can directly sue the
government of a host country in accordance with the rules of international law. See, e.g.,
Wong-Mog Choi, The Present and Future of the Investor-State Dispute Settlement Paradigm, 10 J. INT’L ECON. L. 725, 735–36 (2007) (discussing the advantages of international
investment arbitration). While direct standing is beneficial to investing businesses, arbitrators and their decisions are occasionally criticized for disregarding the legitimate public policy concerns of the host country. See, e.g., Susan D. Franck, The Legitimacy Crisis
in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, 73 FORDHAM L. REV. 1521, 1521–23, 1584–88 (2005).
52. Shell, supra note 47, at 902–03. But see Philip M. Nichols, Extension of Standing
in World Trade Organization Disputes to Nongovernment Parties, 25 U. PA. J. INT’L
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nesses often have a close connection with their government, which
enables them to exert influence over trade policy.53 In fact, governments
participating in dispute settlement proceedings often act as faithful
agents of businesses, and a government’s decision to file a complaint
with the dispute settlement system is often a response to the demands of
businesses.54 Thus, the lack of legitimacy as perceived by businesses is
supplemented by their partnership with governments in the domestic
sphere.55
While in some cases subjective legitimacy is derived from objective
legitimacy, in others, these two types of legitimacy may be incompatible.
This relationship may be illustrated by the former decision-making procedures in the General Agreement on Tariffs and Trade (“GATT”), the
consensus approach.56 Under the consensus approach, a panel could not
be established and a panel report could not be adopted unless all the contracting parties to the GATT reached a consensus to that effect.57
This approach had both positive and negative effects on the overall legitimacy of the GATT dispute settlement system. On the one hand, the
consensus approach weakened the dispute settlement system’s indepenECON. L. 669, 699 (2004) [hereinafter Nichols, Standing] (presenting a skeptical view on
the direct standing of nongovernmental actors).
53. Jeffrey L. Dunoff, The Misguided Debate over NGO Participation at the WTO, 1
J. INT’L ECON. L. 433, 441–51 (1998) (describing the significant roles played by private
companies behind the film dispute between Japan and the United States). See also William H. Barringer & James P. Durling, Out of Focus: The Use of Section 301 to Address
Anticompetitive Practices in Foreign Markets, 1 UCLA J. INT’L L. & FOREIGN AFF. 98
(1996). Of course, there are also cases where a government refused a request by businesses to bring a case to the dispute settlement system in the light of public policy considerations. See Petros C. Mavroidis et. al., Is the WTO Dispute Settlement Mechanism
Responsive to the Needs of the Traders? Would a System of Direct Action by Private
Parties Yield Better Results?, 32 J. WORLD TRADE 147, 151 (1998).
54. One of the typical examples is Japan—Measures Affecting Consumer Photographic Film and Paper, a WTO dispute between Japan and the United States, which was
triggered by the struggle between the private film companies Fuji and Kodak. Barringer
& Durling, supra note 53.
55. See generally SHAFFER, supra note 48 (evaluating how private companies collaborate with governmental authorities in the domestic sphere to challenge foreign trade
barriers before the WTO).
56. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, T.I.A.S.
1700, 55 U.N.T.S. 194. [hereinafter GATT Agreement]. The GATT is the predecessor to
the WTO and is now incorporated in the WTO Agreement as the GATT 1994. WTO
Agreement, supra note 4, art. 2(4). The decision-making procedures in the GATT, including those in the dispute settlement system, have adopted the consensus approach.
ROBERT E. HUDEC, ENFORCING INTERNATIONAL TRADE LAW: THE EVOLUTION OF THE
MODERN GATT LEGAL SYSTEM 165, 231–33 (1993).
57. Id. at 231–33.
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dence and effectiveness, sources of objective legitimacy. It gave de facto
veto power to every contracting party, and this occasionally interrupted
the flow of the dispute settlement proceedings.58 On the other hand, the
government parties perceived the dispute settlement system’s proceedings and decisions to be legitimate because the unanimous consent of
contracting parties was required.59 At the time the GATT was adopted, it
was not backed by strong political support.60 Thus, although the consensus approach interfered with the GATT’s objective legitimacy, this
approach was favored because it increased the GATT’s legitimacy as
perceived by the governments of the contracting parties.61
However, as trade relations expanded and trade disputes increased, the
contracting parties gradually became frustrated by the ineffectiveness of
the GATT dispute settlement system, which eventually led the United
States to pursue unilateralism.62 The U.S. response persuaded the contracting parties to tackle the system’s inefficiency. Consequently, the
Uruguay Round adopted the negative consensus approach, which allows
for the automatic establishment of a panel and the automatic adoption of
a panel report.63
While the negative consensus approach improved the effectiveness of
the dispute settlement system by giving it de facto compulsory jurisdic-
58. For example, in the GATT disputes between the United States and the European
Community in the 1980s, the adoption of panel reports was either blocked or significantly
delayed by the refusal of one or some of the contracting parties. Id. at 145–64.
59. But see Robert Howse, The Legitimacy of the World Trade Organization, in THE
LEGITIMACY OF INTERNATIONAL ORGANIZATIONS 355, 359–63 (Jean-Marc Coicaud &
Veijo Heiskanen eds., 2001) (pointing out that the legitimating value of state consent is
“inherently limited or insufficient”).
60. After World War II, there was a major need for international economic institutions, and although the GATT was originally intended to serve as a multilateral treaty,
and not an organization, the GATT began to apply provisionally in the deadlock of the
negotiation of the International Trade Organization. JOHN H. JACKSON, THE WORLD
TRADING SYSTEM: LAW AND POLICY OF INTERNATIONAL ECONOMIC RELATIONS 35–41
(1989).
61. HUDEC, supra note 56, at 8.
62. Robert E. Hudec, Thinking About the New Section 301: Beyond Good and Evil, in
AGGRESSIVE UNILATERALISM: AMERICA’S 301 TRADE POLICY AND THE WORLD TRADING
SYSTEM 113, 125–36 (Jagdish Bhagwati & Hugh T. Patrick eds., 1990).
63. Under the negative consensus approach, the DSB establishes a panel and adopts a
panel report automatically unless it decides otherwise by consensus. HUDEC, supra note
56, at 237 (stating that “the only plausible explanation” for the inclusion of the negative
consensus approach is the U.S. unilateral legal policy). See also Pauwelyn, Transformation, supra note 26, at 29–32 (“[S]urrender of the veto occurred through [an] . . . incremental process, closing off a major exit route, while injecting new levels of voice” in the
political decision-making process.).
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tion,64 it also reduced governments’ control over proceedings, thereby
threatening to impair the subjective legitimacy of the system. Thus,
complementary measures were introduced to compensate for the diminished role of state consent. For example, in order to enhance the overall
legitimacy of the system, the Uruguay Round adopted improvements
such as the creation of the Appellate Body, the unification of dispute settlement procedures, and the clarification of the standard of review.65 In
short, the former decision-making procedure in the GATT demonstrates
how the structure of the dispute settlement system strikes a balance between objective and subjective legitimacy.
II. LEGITIMACY AS PERCEIVED BY CIVIL SOCIETY
A. Background and Criticism
Recently, the dispute settlement system has been criticized for disregarding the nontrade interests and values of citizens, such as the environment, human rights, and health.66 This criticism adds a new dimension to establishing the overall legitimacy of the system.67 In the past,
citizens were relatively indifferent to international trade rules because
these rules tended to be very technical and appeared to have no visible
impact on them.68 Accordingly, the GATT dispute settlement system
was created without considering civil society’s concerns.69 Citizens attributed little significance to the system, which seemed most relevant for
governments and large businesses. However, the situation is now chang-
64. Ernst-Ulrich Petersmann, How to Promote the International Rule of Law?: Contributions by the World Trade Organization Appellate Review System, 1 J. INT’L ECON. L.
25, 33–35 (1998).
65. ERNST-ULRICH PETERSMANN, THE GATT/WTO DISPUTE SETTLEMENT SYSTEM:
INTERNATIONAL LAW, INTERNATIONAL ORGANIZATIONS AND DISPUTE SETTLEMENT
177–98 (1997).
66. See, e.g., Howse, supra note 25, at 62–68; Robert Howse & Elisabeth Tuerk, The
WTO Impact on Internal Regulations—A Case Study of the Canada-EC Asbestos Dispute,
in THE EU AND THE WTO: LEGAL AND CONSTITUTIONAL ISSUES 283, 300–06 (Gráinne de
Búrca & Joanne Scott eds., 2001) (pointing out that the Appellate Body did consider
nontrade values in interpreting Article III of GATT 1994); Philip M. Nichols, Trade
Without Values, 90 NW. U. L. REV. 6, 709–18 (1996) [hereinafter Nichols, Values].
67. Howse, supra note 25, at 36–42 (arguing that tribunals must address nontrade
values fairly and sensitively because dispute settlement outcomes must now have “social
legitimacy” in addition to “formal legitimacy”).
68. John O. McGinnis & Mark L. Movsesian, Commentary, The World Trade Constitution, 114 HARV. L. REV. 511, 557–58 (2000).
69. Shoaib A. Ghias, International Judicial Lawmaking: A Theoretical and Political
Analysis of the WTO Appellate Body, 24 BERKLEY J. INT’L L. 534, 546–47 (2006).
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ing.70 Civil society is becoming increasingly conscious of and concerned
about international trade rules and dispute settlements.
One of the major reasons for this change is the development of international trade rules. Since the GATT, the WTO rules have expanded substantially and now cover every aspect of the trade in goods, services, intellectual property rights, and investments.71 The WTO Agreement may
even occasionally have a detrimental affect on nontrade-related domestic
regulation, such as the regulation of food safety and environmental protection.72 Moreover, improved enforcement through the WTO’s dispute
settlement system reinforces the impact of the WTO Agreement’s expansive rules.73
Concurrent with the development of international trade rules, the flow
of international trade and investments has been increasing at an unprecedented rate,74 thereby furthering not only economic, but also social and
cultural globalization. As a result, even citizens who were unconcerned
with trade rules have been forced to face the challenges of globalization.
Recognizing that they are critical stakeholders in international trade disputes, citizens are demanding a say in the dispute settlement system,
which they have criticized as statist and trade-biased.75
In part, the position of citizens in international trade disputes is similar
to that of businesses, as citizens’ interests and values are also not directly
70. Robert O. Keohane & Joseph S. Nye, Jr., The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy, in EFFICIENCY, EQUITY, LEGITIMACY:
THE MULTILATERAL TRADING SYSTEM AT THE MILLENNIUM 264, 269–72 (2001) (arguing
that the club arrangements of trade politics—under which small numbers of rich-country
trade ministers controlled the agenda and made deals—are being undercut by their success).
71. WTO Agreement, supra note 4.
72. Nichols, Values, supra note 66, at 672–90 (pointing out that societal values, such
as the environment, labor, and cultural identity, may conflict with the precepts of free
trade).
73. See, e.g., William J. Davey, The WTO Dispute Settlement System: The First Ten
Years, 8 J. INT’L ECON. L. 17 (2005) (discussing the success of the dispute settlement
system).
74. For example, the global inflow of foreign direct investment in 2006 was $1306
billion, compared to $202 billion in 1990. U.N. CONFERENCE ON TRADE AND DEV.,
WORLD INVESTMENT REPORT 2007: TRANSNATIONAL CORPORATIONS, EXTRACTIVE
INDUSTRIES AND DEVELOPMENT at 9, U.N. Sales No. E.07.II.D.9 (2007).
75. Steve Charnovitz, Opening the WTO to Nongovernmental Interests, 24 FORDHAM
INT’L L.J. 173, 197–212 (2000). See also Ernst-Ulrich Petersmann, Constitutionalism and
International Adjudication: How to Constitutionalize the U.N. Dispute Settlement System?, 31 N.Y.U. J. INT’L L. & POL. 753, 789–90 (stating that the dispute settlement system should protect individual rights and that it should be open to nonstate actors). There
is also a controversy over the participation of civil society in rulemaking procedures. See,
e.g., Charnovitz, Nongovernmental Organizations, supra note 37, at 366–68.
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represented. However, unlike businesses, citizens are unorganized and
tend to lack close connections with their governments, making it difficult
for them to influence their policies.76 Moreover, foreign policy, an area
known for its high politics, is normally subject to only limited democratic control,77 which has been further eroded as the forces of globalization
shift decision-making fora from the domestic to the international
sphere.78 What supplements the lack of legitimacy as perceived by businesses (i.e., close connections with governments) is insufficiently available to citizens. The lack of subjective legitimacy on the part of citizens is
exacerbated by the absence or weakness of domestic channels, which
would allow them to better realize their preferences.79
Therefore, critics argue that the dispute settlement system should directly consider and reflect the diverse concerns of civil society without
relying on the intermediation of national governments.80 They have offered several specific ways in which this can be achieved. First, critics
have suggested opening panel and Appellate Body meetings to the public.81 Second, some have proposed the acceptance and consideration of
unsolicited amicus curiae briefs submitted by the public.82 Finally, oth76. See Eric Stein, International Integration and Democracy: No Love at First Sight,
95 AM. J. INT’L L. 489, 489–91 (2001) (noting that as the integration of international
institutions intensifies, national democracies tend to be more constrained).
77. The treaty-making power of the executive is normally subject to parliamentary
consent alone. LOUIS HENKIN, CONSTITUTIONALISM, DEMOCRACY, AND FOREIGN AFFAIRS
49–68 (1990). See also Karl Kaiser, Transnational Relations as a Threat to the Democratic Process, in TRANSNATIONAL RELATIONS AND WORLD POLITICS 356, 357 (Robert O.
Keohane & Joseph S. Nye, Jr. eds., 1972).
78. JOHN H. JACKSON, SOVEREIGNTY, THE WTO, AND CHANGING FUNDAMENTALS OF
INTERNATIONAL LAW 8–10 (2006) (discussing the exogenous and endogenous forces of
globalization); Robert A. Dahl, Can International Organizations be Democratic? A Skeptic’s View, in DEMOCRACY’S EDGE 19, 34 (Ian Shapiro & Casiano Hacker-Cordón eds.,
1999) (pointing out that the costs of democracy should be taken into account when constructing international organizations). See also DAVID HELD, DEMOCRACY AND THE
GLOBAL ORDER: FROM THE MODERN STATE TO COSMOPOLITAN GOVERNANCE (1995).
79. See Eric Stein, supra note 76, at 489–91.
80. In a similar vein, some argue that international institutions should be accountable
to civil society. See, e.g., Robert O. Keohane, The Concept of Accountability in World
Politics and the Use of Force, 24 MICH. J. INT’L L. 1121, 1135–38 (2003) (discussing the
accountability of the U.N. Security Council). See also Nico Krisch, The Pluralism of
Global Administrative Law, 17 EUR. J. INT’L L. 247 (2006) (examining to whom international institutions should be accountable).
81. See, e.g., J.H.H. Weiler, The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement, 13 AM. REV.
INT’L ARB. 177, 191 (2002).
82. See, e.g., Charnovitz, supra note 9, at 348–57; Esty, Non-Governmental Organizations, supra note 9, 125–26.
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ers have maintained that trade tribunals should reflect nontrade concerns
in their interpretations of international trade rules.83
Given the growing impact of trade rules and trade disputes on civil society, the interests and values of citizens cannot be neglected in the settlement of international trade disputes. Unless citizens perceive the dispute settlement system and its rulings as legitimate, governments of responding parties will meet strong resistance from their citizens when implementing the dispute settlement rulings and may fail to internalize
these rulings into their domestic legal orders. Nevertheless, the critics’
proposals may disturb the balance among sources of legitimacy.
B. Effects of the Critics’ Proposals on Legitimacy
1. Open Panel and Appellate Body Meetings
Critics assert that opening panel and Appellate Body meetings to the
public will enhance the transparency of the dispute settlement system and
thereby improve its legitimacy as perceived by civil society.84 However,
this proposal may also have harmful effects on the system’s overall legitimacy. For example, the presence of citizens at meetings could prevent
governments of the disputing parties from reaching an effective solution
to the dispute.85 Open meetings could also impair the independence of
panel and Appellate Body reviews86 and interfere with governments’
control over proceedings. Special precautions would need to be taken in
order to avoid such results. A few recent cases illustrate the type of precautions that may be used. In US—Continued Suspension and Canada
—Continued Suspension, the disputing parties agreed to open the panel
83. See, e.g., Howse, supra note 25, at 62–68; Howse & Tuerk, supra note 66,
300–06 (pointing out that the Appellate Body did consider nontrade values in interpreting
Article III of GATT 1994); Nichols, Values, supra note 66, at 709–18. There is also a
proposal to take legislative measures, instead of adjudicative measures, in order to incorporate the nontrade concerns of citizens into the WTO. Guzman, supra note 8, at 309–28.
84. Dispute Settlement Body Special Session, Further Contribution of the United
States to the Improvement of the Dispute Settlement Understanding of the WTO Relating
to the Transparency—Revised Legal Drafting, ¶¶ 1–2, WTO Doc. TN/DS/W/86 (Apr. 21,
2006).
85. Article 3.7 of the DSU provides that a solution mutually acceptable to the parties
is clearly preferred. DSU, supra note 32, art. 3.7. In practice, the parties to a dispute occasionally continue talks in order to reach an amicable solution to the dispute even after a
panel review has begun. E.g., Panel Report, Japan—Import Quotas on Dried Laver and
Seasoned Laver, ¶¶ 14–17, WT/DS323/R (Feb. 1, 2006) (noting that the parties reached a
mutually agreed solution after establishment of the panel).
86. As discussed above, the DSU prioritizes independence over the transparency of
the system. See supra note 38 and accompanying text.
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meetings to the public. 87 Citizens observed the meetings through
closed-circuit television broadcasts, but they were not allowed to sit in
the meeting rooms.88 This method was subsequently adopted in other
meetings because of its practical value in furthering transparency without
impairing the independence of the proceedings.89
2. The Acceptance and Consideration of Amicus Curiae Briefs
Another proposal offers that unsolicited amicus curiae briefs should be
accepted and considered in order to facilitate citizens’ participation in the
dispute settlement system. This proposal, though, may impair rather than
improve legitimacy as perceived by civil society. First, amicus curiae
briefs may not be sufficiently representative of civil society as a whole.90
Only a handful of citizens have the resources or expertise to submit them,
and there is no assurance that these citizens represent the collective
views of civil society.91
87. Communication from the Chairman of the Panels, United States—Continued
Suspension of Obligations in the EC-Hormones Dispute, Canada—Continued Suspension
of Obligations in the EC-Hormones Dispute, WT/DS320/8, WT/DS321/8 (Aug. 2, 2005).
In these cases, the Appellate Body’s oral hearing was also opened to the public. WTO
Trade Topics Section: Dispute Settlement, http://www.wto.org/english/tratop_e/dispu_e/
public_hearing_july08_e.htm (last visited Nov. 10, 2008).
88. E.g., Press Release, World Trade Org., WTO Meeting on “Zeroing” Dispute
Opened to the Public (Oct. 10, 2008). Among the citizens that came to these meetings
were journalists, nongovernmental organization representatives, and scholars. WTO 2005
News Items, Dispute Settlement—WTO Opens Panel Proceeding to Public for the First
Time, Sept. 12, 2005, http://www.wto.org/english/news_e/news05_e/openpanel_12sep_e.htm.
89. After US—Continued Suspension and Canada—Continued Suspension, for cases
in which panel meetings were opened to the public at the request of the parties, see Panel
Report, United States—Continued Existence and Application of Zeroing Methodology, ¶
1.9, WT/DS350/R (Oct. 1, 2008); Panel Report, European Communities—Regime for the
Importation, Sale, and Distribution of Bananas—Recourse to Article 21.5 of the DSB by
the United States, ¶ 1.11, WT/DS27/RW/USA (May 19, 2008); WORLD TRADE
ORGANIZATION, WTO: 2008 News Items—WTO Meeting on “Zeroing” Dispute Opened
to the Public, Oct. 10, 2008, http://www.wto.org/english/news_e/news08_e/dispu322_10oct
08_e.htm (a decision for the dispute United States—Measures Relating to Zeroing and
Sunset Reviews has yet to be published); WORLD TRADE ORGANIZATION, WTO: 2008
News Items—WTO Hearings on Apple Dispute Opened to the Public, Aug. 11, 2008 (a
decision for the dispute Australia—Measures Affecting the Importation of Apples from
New Zealand has yet to be published).
90. Yuka Fukunaga, Participation of Private Parties in the WTO Dispute Settlement
Processes: Treatment of Unsolicited Amicus Curiae Submissions, 4 SOOCHOW L.J. 99,
122–24 (2007) [hereinafter Fukunaga, Participation].
91. Although it is uncertain whether the proposed criteria can successfully sort out the
eligible amici curiae, some criteria are proposed to assess if amici curiae are suitably
representative. See, e.g., Hervé Ascensio, L’Amicus curiae devant les juridic-
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In addition, it would be difficult for panelists and Appellate Body
members to reconcile conflicting interests and values in amicus curiae
briefs.92 Critics seem to assume that these briefs would enable all trade
stakeholders to engage in a deliberative dialogue and to reach a rational
and persuasive outcome for the entire society.93 However, such a deliberative dialogue can only succeed in a polity in which citizens share a
common identity and common interests.94 At this point, the most common form of polity is the nation-state.95 A polity that transcends national
boundaries has not emerged and is not likely to do so in the near future.96
tions-internationales [Amicus Curiae Before International Courts], 105 REVUE GÉNÉRALE
DE DROIT INTERNATIONAL PUBLIC [R.I.D.P.] 897, 911–21 (2001) (Fr.); Erik B. Bluemel,
Overcoming NGO Accountability Concerns in International Governance, 31 BROOK. J.
INT’L L. 139, 178–206 (2005); Gabrielle Marceau & Matthew Stilwell, Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating Bodies, 4 J. INT’L ECON. L. 155,
179–81 (2001).
92. Fukunaga, Participation, supra note 90, at 125–28.
93. Esty, Good Governance, supra note 25, at 1520–21 (“In the international policy
arena, a transparent decision-making process that provides opportunities for debate and
political dialogue, with participation by those representing a broad range of views, is a
key to legitimacy, substituting for the missing democratic legitimacy and accountability
that elections provide.”); Robert Howse, From Politics to Technocracy—and Back Again:
The Fate of the Multilateral Trading Regime, 96 AM. J. INT’L L. 94, 114–16 (2002)
(“[P]roviding participatory opportunities for NGOs is not simply a matter of addressing
the problem of agency costs of representative democracy—it is also a question of seizing
on the potential for deliberative democracy at the transnational level.”) (emphasis removed). For a discussion of deliberative democracy in general, see, for example, JÜRGEN
HABERMAS, BETWEEN FACTS AND NORMS 107–09, 118 (William Rehg trans., 1996).
94. BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND
SPREAD OF NATIONALISM 6–7 (1991); Will Kymlicka & Christine Straehle, Cosmopolitanism, Nation-States, and Minority Nationalism: A Critical Review of Recent Literature,
7 EUR. J. PHIL. 65, 68–72, 82–83 (1999). Anderson describes this type of polity as follows:
[The nation] is an imagined political community and imagined as both inherently limited and sovereign. . . . [I]t is imagined as a community, because, regardless of the actual inequality and exploitation that may prevail in each, the
nation is always conceived as a deep, horizontal comradeship. Ultimately it is
this fraternity that makes it possible, over the past two centuries, for so many
millions, not so much to kill, as willingly to die for such limited imaginings.
ANDERSON, supra, at 6–7.
95. ANTHONY D. SMITH, NATIONAL IDENTITY 8–18 (1991) (discussing the elements of
national identity).
96. See, e.g., id. at 175 (“[T]he chances of transcending the nation and superseding
nationalism are at present slim. . . . A growing cosmopolitanism does not in itself entail
the decline of nationalism.”); Bodansky, supra note 15, at 615–17 (“[A] demos—a shared
sense of community . . . is absent at the global level.”). See also Weiler, supra note 14, at
2466–74 (stating that even in the European Union, a collective polity has not emerged). It
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A deliberative dialogue might therefore be regarded as the unilateral imposition of a foreign value by foreign citizens.97 Given these circumstances, even if panels and the Appellate Body make rulings with full
awareness of all the interests and values represented by amicus curiae
briefs, the citizens adversely affected by the rulings may only consider
their concerns to have been illegitimately discounted in favor of others.
Second, the acceptance and consideration of amicus curiae briefs may
also harm the dispute settlement system’s legitimacy as perceived by
governments. Trade disputes often involve a direct conflict of economic
interests between disputing parties, and arguments of amicus curiae
briefs tend to favor the interests of one party to the detriment of the other.98 Moreover, even if the arguments in a brief are consistent with those
that a government would like to make in a given case, the government
may consider them to have adverse implications for future cases. In fact,
many developing countries, whose interests are more likely to clash with
those of amici curiae, are opposed to the acceptance and consideration of
unsolicited briefs.99
Finally, instituting the proposal in question may also damage the objective legitimacy of the dispute settlement system. Consideration of
amicus curiae briefs would allow a few select interest groups to influence
dispute settlement proceedings considerably and may call into question
the independence of the system. A small number of protectionist interest
groups often exert disproportionate pressure to restrict trade despite the
benefits of free trade for the rest of the world.100 In addition to protec-
is also suggestive that while international law recognizes the value of democracy, it generally does so at the national, not international, level. James Crawford, Democracy and
International Law, 64 BRIT. Y. B. INT’L L. 113, 123–30 (1993).
97. See FRIEDRICH A. HAYEK, THE ROAD TO SERFDOM 222–29 (1944).
98. Thus far, most amicus curiae briefs have supported the position of the responding
party. Fukunaga, Participation, supra note 90, at 120.
99. See, e.g., Dispute Settlement Body Special Session, Dispute Settlement Understanding Proposals: Legal Text, at 1, WTO Doc. TN/DS/W/47 (Feb. 11, 2003); WTO
Dispute Settlement Body, Minutes of Meeting Held in the Centre William Rappard on 23
October 2002, at 7–27, WT/DSB/M/134 (Jan. 29, 2003); Dispute Settlement Body Special Session, Text for the African Group Proposals on Dispute Settlement Understanding
Negotiations, at 3, WTO Doc. TN/DS/W/42 (Jan. 24, 2003); Dispute Settlement Body
Special Session—Negotiations on the Dispute Settlement Understanding, at 3–4, WTO
Doc. TN/DS/W/18 (Oct. 7, 2002); WTO Dispute Settlement Body, Minutes of Meeting
Held in the Centre William Rappard on 6 November 1998, WT/DSB/M/50 (Dec. 14,
1998).
100. McGinnis & Movsesian, supra note 68, at 515–16 (“[O]wners and workers in . . .
industries [that suffer because of free trade] will agitate for protectionist measures that
restrict imports. Such protectionist interest groups command disproportionate leverage in
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tionist groups, an empirical study shows that major businesses have been
active in submitting unsolicited amicus curiae briefs to the panels and
Appellate Body.101 One of the challenges for the multilateral trading
system has been to insulate trade policy from such protectionist pressure,102 and the acceptance and consideration of amicus curiae briefs
may conflict with this objective.
Additionally, it is unclear if the panels and the Appellate Body even
have the legal authority to accept and consider amicus curiae briefs. Although the Appellate Body has asserted its authority to do so, the text of
the DSU neither confirms nor denies this right.103
3. The Interpretative Approach to Reflect Nontrade Values
Reflecting nontrade values in the interpretation of the WTO Agreement has long been the subject of scholarly debate.104 This issue arises in
two different situations, when a nontrade value is embodied in non-WTO
international law rules, and when it is not. While in the former case the
issue concerns how these non-WTO rules relate to the rules of the WTO
Agreement, in the latter it is whether panels and the Appellate Body are
justified in reflecting the non-law, nontrade value in their interpretations
of the WTO Agreement. Critics claim that in both situations the interpretative approach incorporating nontrade values would reduce the trade
bias of the dispute settlement system and improve legitimacy as perceived by civil society.105 However, if taken too far, this approach could
domestic politics, and their lobbies are often able to secure import restrictions, even
though the overall citizenry suffers.”).
101. Fukunaga, Participation, supra note 90, at 120.
102. Robert Hudec, “Circumventing” Democracy: The Political Morality of Trade
Negotiations, 25 N.Y.U. J. INT’L L. & POL. 311, 312–17 (1993) (pointing out that direct
democratic participation led to the adoption of the notorious Smoot-Hawley Act).
103. See, e.g., Appellate Body Report, United States—Imposition of Countervailing
Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in
the United Kingdom, ¶¶ 39–42, WT/DS138/AB/R (May 10, 2000); Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, ¶¶
101–10, WT/DS58/AB/R (Oct. 12, 1998) [hereinafter US—Shrimp]; Brigitte Stern,
L’Intervention des tiers dans le contentieux de l’OMC [Third-Party Intervention in WTO
Disputes], 107 REVUE GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC [R.I.D.P.] 257,
289–93 (2003) (Fr.) (criticizing the interpretations of the Appellate Body). In practice,
the Appellate Body has not taken into account amicus curiae briefs unless the briefs were
attached to the parties’ submissions. United States—Import Prohibition of Certain
Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, ¶¶ 75–77,
WT/DS58/AB/RW (Oct. 22, 2001).
104. See supra note 80 and accompanying text.
105. Howse, supra note 25, at 62.
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have harmful consequences on the balance of legitimacy. The following
discussion considers each situation separately.
(a) Nontrade Values Embodied in Rules of International Law
The interpretive approach incorporating nontrade international law
rules may be helpful in resolving trade disputes if the non-WTO rule
does not conflict with the WTO Agreement. For example, the WTO
Agreement may explicitly or implicitly106 recognize the relevance of a
non-WTO international law rule. In this case, the WTO members have
agreed that the panels and Appellate Body are required to rely on the
non-WTO rule in resolving the trade dispute. If the WTO Agreement
does not implicitly or explicitly recognize the non-WTO rule, the interpretive approach may still be helpful in resolving trade disputes. Even if
its relevance is not recognized in the text of the WTO Agreement, the
nontrade rule may help clarify the meaning of the rules of the WTO
Agreement. For example, in US—Shrimp, to clarify the meaning of Article XX of the GATT, the Appellate Body cited non-WTO international
law, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora and the doctrine of abus de droit.107
Referencing non-WTO rules may also generally improve the subjective
and objective legitimacy of the dispute settlement system. The interests
of civil society are more likely to be embodied in non-WTO rules, for
example, international human rights law,108 and governments expect the
panels and the Appellate Body to reflect other international agreements
in adjudicating disputes.109 In addition, recognizing non-WTO rules may
strengthen the objective legitimacy of the system. Article 31(c) of the
106. Article 3.2 of the DSU implicitly recognizes the rules of interpretations codified
in Articles 31 and 32 of the Vienna Convention. See, e.g., Appellate Body Report, Japan—Taxes on Alcoholic Beverages, at 10–12, WT/DS8/AB/R, WT/DS10/AB/R,
WT/DS11/AB/R (Oct. 4, 1996); Appellate Body Report, United States—Standards for
Reformulating and Conventional Gasoline, at 15–16, WT/DS2/AB/R (Apr. 29, 1996)
[hereinafter US—Gasoline]. The Agreement on Trade-Related Aspects of Intellectual
Property Rights explicitly incorporates the provisions of international legal instruments
concerning the protection of intellectual property rights. See, e.g., Panel Report, Canada—Patent Protection of Pharmaceutical Products, ¶¶ 7.13–.15, WT/DS114/R (Mar. 17,
2000).
107. US—Shrimp, supra note 103, ¶¶ 129–34, 158.
108. E.g., David Kinley, Human Rights Fundamentalisms, 29 SYDNEY L. REV. 545,
571–72 (2007) (stating that international organizations, such as the WTO, the World
Bank, and the IMF, do not sufficiently address human rights concerns).
109. E.g., Panel Report, Mexico—Tax Measures on Soft Drinks and Other Beverages,
¶ 8.162, WT/DS308/R (Oct. 7, 2005) (asserting compliance with an international agreement as Mexico’s defense to a U.S. claim in the DSB).
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Vienna Convention on the Law on Treaties (“Vienna Convention”) provides that “any relevant rules of international law applicable in the relations between the parties”110 shall be taken into account in interpreting
international law rules.111 Similarly, the Appellate Body has stated that
the WTO Agreement “is not to be read in clinical isolation from public
international law.”112 In fact, the panels and Appellate Body have been
referencing non-WTO international law rules in interpreting the WTO
Agreement when members have accepted these rules.113
Nonetheless, when there is a conflict between non-WTO international
law rules and the WTO Agreement, the application114 of the former may
110. It is unclear whether the term “parties” refers to the parties to a dispute or to the
parties to the treaty being interpreted. In the case of the latter, a non-WTO international
law rule cannot be taken into account under this provision unless the rule under consideration is applicable to all WTO members. One panel took this approach. Panel Report,
European Communities—Measures Affecting the Approval and Marketing of Biotech
Products, ¶¶ 7.65–.71, WT/DS291/R, WT/DS292/R, WT/DS293/R (Sept. 29, 2006)
(“[T]he rules of international law applicable in the relations between ‘the parties’ are the
rules of international law applicable in the relations between the States which have consented to be bound by the treaty which is being interpreted, and for which that treaty is in
force.”). On the other hand, the Appellate Body might have a slightly broader view as
long as environmental issues are concerned. US—Shrimp, supra note 103, ¶¶ 130–31
(referring to several international legal instruments on environmental issues in the light of
“the recent acknowledgement by the international community of the importance of concerted bilateral or multilateral action to protect living natural resources, and recalling the
explicit recognition by WTO Members of the objective of sustainable development in the
preamble of the WTO Agreement”). See also U.N. Int’l Law Comm’n [ILC], Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of
International Law, para. 472, U.N. Doc. A/CN.4/L.682 (Apr. 13, 2006) [hereinafter ILC,
Fragmentation] (finalized by Martti Koskenniemi). While the report states that “it might
also be useful to take into account the extent to which that other treaty relied upon can be
said to have been ‘implicitly’ accepted or at least tolerated by” all the parties to the treaty
being interpreted, it proposes “permit[ting] reference to another treaty provided that the
parties in dispute are also parties to that other treaty . . . .” Id.
111. The second sentence of Article 3.2 of the DSU provides that the WTO Agreement
shall be clarified “in accordance with customary rules of interpretation of public international law.” DSU, supra note 32, art. 3.2. The Appellate Body repeatedly found that such
customary rules are codified in the Vienna Convention, in particular Articles 31 and 32.
See supra note 123.
112. US—Gasoline, supra note 106.
113. For more detail, see JOOST PAUWELYN, CONFLICT OF NORMS IN PUBLIC
INTERNATIONAL LAW: HOW WTO LAW RELATES TO OTHER RULES OF INTERNATIONAL
LAW 273 (2003). See also Joel P. Trachtman, The Domain of WTO Dispute Resolution,
40 HARV. INT’L L.J. 333, 336–39, 362–64 (1999) (arguing that as far as environmental
issues are concerned, the WTO Agreement can be interpreted harmoniously with environmental rules).
114. In this Article, “reference” to a non-WTO rule means that the non-WTO rule is
consulted in the course of applying the WTO rules. On the other hand, “application” of a
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undermine the dispute settlement system’s overall legitimacy.115 Conflicts may arise in several different situations.116 For example, a direct
conflict may occur when a non-WTO rule requires the adoption of a specific measure that constitutes a violation of the WTO Agreement,117 or
when a violation of the WTO Agreement is justifiable under a non-WTO
rule. There may also be subtler conflicts between the WTO Agreement
and nontrade rules. For example, a matter deliberately left open in the
WTO Agreement may be articulated in non-WTO rules.118 When there is
a conflict between the international non-WTO rules and the WTO
Agreement, may the tribunals apply the former to modify or supersede
the latter? If so, will this enrich the dispute settlement system’s legitimacy? In the author’s view, both questions must be answered in the negative.
Regarding the first, the panels and the Appellate Body lack the legal
authority to apply non-WTO international law rules when they conflict
with the WTO Agreement. Although the DSU does not prohibit the ap-
non-WTO rule means that the non-WTO rule is directly relied upon in the absence of
relevant WTO rules. Although the distinction between the two is a matter of degree, reliance on a non-WTO rule that is in conflict with the WTO rules is plainly not a “reference,” but rather an “application.” PAUWELYN , supra note 113, at 273–74.
115. See Neil Walker, The Idea of Constitutional Pluralism, 65 MOD. L. REV. 317,
347–50 (2002).
116. For analysis on the notion of conflict, see PAUWELYN, supra note 113, at 161–200
(“Essentially, two norms are . . . in a relationship of conflict if one constitutes, has led to,
or may lead to, a breach of the other.”); Wilfred Jenks, The Conflict of Law-Making
Treaties, 30 BRIT. Y.B. INT’L L. 401, 425–27 (1953) (“A conflict in the strict sense of
direct incompatibility arises only where a party to the two treaties cannot simultaneously
comply with its obligations under both treaties.”).
117. See, e.g., World Trade Organization, Comm. on Trade and Environment, Subparagraph 31(i) of the Doha Declaration, TN/TE/W/20 (Feb. 10, 2003); World Trade Organization, Comm. on Trade and Environment, Multilateral Environmental Agreements
(MEAs): Implementation of the Doha Development Agenda, ¶ 31(i), TN/TE/W/1 (Mar. 21,
2002).
118. Conflicts of laws are not new phenomena in international law, which lacks centralized lawmaking authorities. Recently, however, there has been an increasing likelihood
of conflicts among international law rules partly due to the functionalist approach to international law. See, e.g., Douglas M. Johnston, Functionalism in the Theory of International Law, 26 CAN. Y.B. INT’L L. 3, 29–59 (1988). Under this approach, international
law is functionally differentiated into several subareas such as trade, environment, and
human rights. Id. In these subareas, international law rules have been developed rather
autonomously through specialized institutions and tribunals. Id. As a result, international
law has become more fragmented, and conflicts among the rules are more likely to arise.
Id.
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plication of such rules,119 certain provisions of the DSU, such as Articles
7 and 11, suggest that the panels and Appellate Body should only apply
the rules of the WTO Agreement.120 Moreover, if the application of
non-WTO rules results in the modification of the WTO Agreement, this
violates Article 3(2) of the DSU, which stipulates that the dispute settlement system shall not “add to or diminish the rights and obligations”
under the WTO Agreement.121 In addition, nothing in the Vienna Convention justifies the panels and the Appellate Body modifying the WTO
Agreement by applying conflicting non-WTO international law rules.122
119. A non-WTO rule can be applied to fill the absence of the WTO rules when the
absence is not deliberate, and therefore, there is no conflict between the non-WTO rule
and the WTO rules. See PAUWELYN, supra note 113, at 213–15; David Palmeter & Petros
C. Mavroidis, The WTO Legal System: Sources of Law, 92 AM. J. INT’L L. 298, 398–99
(1998); Thomas J. Schoenbaum, WTO Dispute Settlement: Praise and Suggestions for
Reform, 47 INT’L & COMP. L.Q. 647, 653 (1998).
120. DSU, supra note 32, arts. 7, 11; Yūji Iwasawa, WTO hō to hi WTO hō no kōsaku
[The Interaction Between WTO Law and Non-WTO Law], 1254 JURISUTO 20, 21–22
(2003); Gabrielle Marceau, Conflicts of Norms and Conflicts of Jurisdictions: The Relationship Between the WTO Agreement and MEAs and Other Treaties, 35 J. WORLD
TRADE 1081, 1102–05, 1116 (2001); Trachtman, supra note 113, at 342–43.
121. DSU, supra note 32, art. 3.2.
122. ILC, Fragmentation, supra note 110, at 248–56 (admitting that the Vienna Convention fails to provide complete rules to resolve conflicts among international law rules).
See also Martti Koskenniemi, Global Legal Pluralism: Multiple Regimes and Multiple
Modes of Thought, Keynote Speech at Harvard University (Mar. 5, 2005). For criticism
of the ILC report, see Benedetto Conforti, Unité et fragmentation du droit international:
“Glissez, mortels, n’appuyez pas!” 111 REVUE GÉNÉRALE DE DROIT INTERNATIONAL
PUBLIC 1 (2007). In this regard, at least one scholar suggests that, on the contrary, Articles 30(4)(A), 41, and 58 of the Vienna Convention require panels and the Appellate
Body to acknowledge that two or more WTO members may modify or suspend the WTO
rules as between the members by adopting environmental or human rights rules.
PAUWELYN, supra note 113, at 315–24.
However, this suggestion is not convincing for the following reasons. First, the
WTO rules, such as Articles XX and XXIV of the GATT and the last sentence of Article
3.2 of the DSU, appear to contract out of the conflict of laws rules of the Vienna Convention. GATT Agreement, supra note 56, arts. XX(d), XXIV(12); DSU, supra note 32, art.
3.2. Moreover, it is questionable that the Vienna Convention, which was drafted decades
ago, provides a suitable solution to the current fragmentation of international law. Second,
assuming that the Vienna Convention is applied in this context, Articles 41 and 58 of the
Vienna Convention merely allow “the parties to a multilateral treaty” to modify or suspend the treaty under certain conditions, but neither authorize nor oblige a treaty body to
modify or suspend the treaty, or to acknowledge the modification or the suspension
among parties. Vienna Convention, supra note 15, arts. 41, 58. Therefore, while Articles
41 and 58 might allow two or more WTO members to conclude an agreement to modify
or suspend the WTO Agreement as between themselves, these provisions do not justify
panels or the Appellate Body acknowledging and validating such modifications or suspensions of the WTO Agreement. See id. Third, the modification or the suspension of the
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Thus, the DSU requires that the panels and the Appellate Body resolve
disputes by exclusively applying the provisions of the WTO Agreement,
even if these rules conflict with non-WTO rules.123
Even if the panels and the Appellate Body had the legal authority under the DSU to apply conflicting non-WTO rules, which they arguably
do not, both substantive and institutional issues remain concerning how
to address conflicts among international law rules. The substantive concern is whether it is necessary to resolve conflicts between the WTO
Agreement and non-WTO international law rules. Conflicts among international law rules, often referred to as fragmentation, are a natural
consequence of how international law is developed. Specialized rules and
institutions have been created to respond to diverse needs and concerns
WTO Agreement is unlikely to meet the conditions set forth in Articles 41 and 58 of the
Vienna Convention, which establish that the modification or the suspension shall not
affect the right of other parties to the treaty and shall not contradict the object and purpose of the treaty. See, e.g., Panel Report, European Communities—Regime for the Importation, Sale and Distribution of Bananas, ¶ 7.50, WT/DS27/R/USA (May 22, 1997)
(observing that, per the DSU, parties need not have a “legal interest” to request a Panel,
rather it is only necessary for the complaint to assert a potential “infringement” on the
complaining party’s rights under the WTO Agreement by an ancillary agreement among
other members). See also, e.g., Appellate Body Report, European Communities—Regime
for the Importation, Sale and Distribution of Bananas, ¶ 136, WT/DS27/AB/R (Sept. 9,
1997) (reinforcing the aforementioned view of the Panel and noting specifically the justification for the U.S. claim against the E.C. banana regime).
It should be recalled that the WTO Agreement reflects the balance of rights and
obligations of WTO members and that one of the primary goals of the dispute settlement
system is to preserve this balance. DSU, supra note 32, art. 3.2. The modification or the
suspension of the WTO rules between some members would inevitably distort the balance in the WTO Agreement and, consequently, affect the rights and obligations of other
WTO members. Yuka Fukunaga, Securing Compliance Through the WTO Dispute Settlement System: Implementation of DSB Recommendations, 9 J. INT’L ECON. L. 383,
389–95 (2006) [hereinafter Fukunaga, Compliance].
123. One concern might be that the rulings of panels and the Appellate Body may be
incompatible with non-WTO rules or the rulings of other non-WTO tribunals. Thus, it is
suggested that panels and the Appellate Body should pronounce a non liquet and refrain
from making rulings when they face unresolvable conflicts of international law rules.
PAUWELYN, supra note 113, at 419–22. Nothing in the DSU, though, authorizes them to
abstain from exercising the established jurisdiction. Mexico—Soft Drinks, supra note 42,
¶ 49. On the contrary, the abstention of jurisdiction would diminish the right of members
under the DSU to bring disputes to the dispute settlement system. Id. ¶ 49 (A panel has
no discretion “to decline to exercise its jurisdiction even in a case that is properly before
it.”). The situation here is different from the one justifying the principle of judicial
economy in Mexico—Soft Drinks because the exercise of jurisdiction is not considered
necessary to resolve a dispute.
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across different areas of law.124 When efforts are made to maximize rationality, understandably, they result in conflicting rules.125 Resolving
conflicts would negate such efforts. Conflicts cannot be resolved without
developing a hegemonic hierarchy of different rationalities, which is incompatible with the relativity of most international law rules.126
There is also a fundamental institutional issue involved, that is, the capacity and eligibility of panels and the Appellate Body to apply conflicting non-WTO international law rules. First, panelists and Appellate Body
members may lack expertise in such rules. The application of conflicting
non-WTO rules raises the issue of power allocation within the WTO.
Political bodies composed of WTO member governments, not the dispute
settlement system, are better suited to make decisions regarding the
coordination of conflicts among WTO and non-WTO rules.127 Otherwise,
the power to make policy decisions which is reserved to governments
would be eroded, and the legitimacy of the dispute settlement system as
perceived by governments could be undermined.
124. Conforti, supra note 122, at 18; Gerhard Hafner, Pros and Cons Ensuing from
Fragmentation of International Law, 25 MICH. J. INT’L L. 849, 859 (2004).
125. Andreas Fischer-Lescano & Gunther Teubner, Regime-Collisions: The Vain
Search for Legal Unity in the Fragmentation of Global Law, 25 MICH. J. INT’L L. 999,
1006–07, 1017 (Michelle Everson trans., 2004).
126. Koskenniemi, supra note 122, at 12. Although resolving conflicts among different
international law rules may be problematic, the interaction between specialized institutions enriches the activities of these institutions. Fischer-Lescano & Teubner, supra note
125, at 1017–45. However, such interaction should not lead to the assimilation of
specialized institutions. In the context of the WTO, the integrity and security of the trading system should not be lost for the sake of the unity of international law. See generally
NIKLAS LUHMANN, SOCIAL SYSTEMS (John Jr. Bednarz & Dirk Baecker trans., 1995).
Moreover, even if panels and the Appellate Body resolve conflicts between the WTO
Agreement and non-WTO international law rules, they do not necessarily resolve the
fragmentation of international law in general. An international law rule may have different meanings depending on the context, and the application of an international law rule
by a trade tribunal may have only limited relevance in nontrade tribunals. See Prosecutor
v. Delalic, Case No. IT–96–21–A, Judgment, ¶¶ 21–24 (Feb. 20, 2001) (“Although the
Appeals Chamber will necessarily take into consideration other decisions of international
courts, it may, after careful consideration, come to a different conclusion.”). Some suggest that the International Court of Justice should coordinate the conflicting rules of international law. See, e.g., Gilbert Guillaume, The Future of International Judicial Institutions, 44 INT’L & COMP. L.Q. 848, 862 (1995) (proposing that an international tribunal
with a narrow mandate should refer cases to the International Court of Justice upon encountering a difficult question related to public international law). However, this proposal
is unlikely to be realized. See, e.g., Jonathan I. Charney, Is International Law Threatened
by Multiple International Tribunals?, 271 RECUEIL DES COURS 101, 128–29 (1998).
127. Guzman, supra note 8, at 307.
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Second, the application of conflicting non-WTO international law rules
may disrupt the balance between effectiveness and subjective legitimacy
on the part of governments.128 Using both trade and non-WTO rules to
resolve disputes enables panels to consider all legal aspects of a dispute
and resolve it effectively, which is the primary objective of the dispute
settlement system. Dispute resolution through such a comprehensive review prevents a losing party from seeking additional recourse in a tribunal outside the WTO dispute settlement system.129 However, the increased effectiveness of the dispute settlement system reduces governments’ control over disputes, and therefore undermines their perceptions
of the system’s legitimacy. In this regard, it is noteworthy that other international agreements often have individual compliance systems with
different degrees of effectiveness. For example, while the WTO created
the dispute settlement system specifically to enforce compliance with the
WTO Agreement, 130 international environmental and human rights
agreements prefer a different approach to compliance. These agreements
use a managerial approach that encourages and facilitates, rather than
enforces, compliance with their rules.131 When governments agree to
sign an environmental or human rights treaty, they expect that compliance with the agreement will be secured by relatively “soft” secondary
128. As discussed earlier, the negative consensus approach and other Uruguay Round
improvements changed the balance of the dispute settlement system’s sources of legitimacy. See supra note 63 and accompanying text.
129. Assuming that panels and the Appellate Body apply only the WTO rules, res
judicata does not apply to other tribunals applying non-WTO rules to the same dispute.
Panel Report, Argentina—Definitive Anti-Dumping Duties on Poultry from Brazil,
WT/DS241/R (May 19, 2003) (examining the complaining party’s claims, despite the
party’s preceding recourse to another tribunal, and reaching a different conclusion).
However, if the panels and the Appellate Body applied both the WTO rules and
non-WTO rules to a certain dispute between parties, the res judicata effects of their findings might prevent other tribunals from adjudicating the same dispute between the same
parties in accordance with the same non-WTO rules. See, e.g., YUVAL SHANY, THE
COMPETING JURISDICTIONS OF INTERNATIONAL COURTS AND TRIBUNALS 245–47 (2003);
Yuka Fukunaga, Trade Remedies in East Asian Regional Trade Agreements, in THE
WTO TRADE REMEDY SYSTEM: EAST ASIAN PERSPECTIVES 287, 304–07 (Mitsuo Matsushita, Dukgeun Ahn & Tain-Jy Chen eds., 2006); Vaughan Lowe, Overlapping Jurisdictions in International Tribunals, 20 AUSTL. Y.B. INT’L L. 191 (1999).
130. Fukunaga, Participation, supra note 90, at 384–85.
131. Fukunaga, Compliance, supra note 122, at 383, 385–88. See also ABRAM CHAYES
& ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL
REGULATORY AGREEMENTS (1995). “Enforcement” of non-WTO rules not only means the
imposition of obligations or the finding of violations under these rules, but also includes
the exercise of the rights under the rules. See, e.g., DSU, supra note 32, arts. 1–3, 6.
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rules such as advising and monitoring.132 Similarly, governments decide
whether they will enter into an agreement based in part on the relative
hardness or softness of its approach to compliance.133 If the dispute settlement system applies its enforcement power to nontrade rules, governments may view this action as illegitimate, as they did not anticipate the
stronger enforcement of these rules. Although referencing and applying
non-WTO rules can have positive effects on civil society’s perceptions of
the dispute settlement system’s legitimacy, adopting such an approach is
likely to impair the overall legitimacy of the system if the panels and the
Appellate Body apply non-WTO rules that conflict with the WTO
Agreement.134
(b) Nontrade Values not Embodied in the Rules of International Law
Some argue that nontrade values not embodied in rules of international
law should be reflected in the trade tribunals’ interpretations of the WTO
Agreement.135 It is clear that the interpretation of the WTO Agreement
132. Dinah Shelton, Commentary and Conclusions, in COMMITMENT AND COMPLIANCE:
THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM 449, 451 (Dinah Shelton ed., 2000); Prosper Weil, Towards Relative Normativity in International
Law?, 77 AM. J. INT’L L. 413, 421 (1983) (“There is now a trend towards the replacement
of the monolithically conceived normativity of the past by graduated normativity.”).
133. Kal Raustiala, Forms and Substance in International Agreements, 99 AM. J. INT’L
L. 581, 583–85, 608–09 (2005) (focusing on domestic politics and institutions, and analyzing why the review structure in trade agreements is strong whereas the review structure in environmental agreements is weak). But see George W. Downs, David M. Rocke
& Peter N. Barsoon, Is the Good News About Compliance Good News About Cooperation?, 50 INT’L ORG. 379, 384–97 (1996) (arguing that deeper cooperation requires
stronger enforcement).
134. An exception to the above analysis may exist when preemptory rules of international law are involved. When a non-WTO rule has acquired preemptory status in international law, the panels and the Appellate Body may be required to modify the WTO
rules by applying the preemptory rule. Robert Howse & Makau Mutua, Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization (2000),
http://www.ichrdd.ca/english/commdoc/publications/globalization/wtoRightsGlob.html. However, a question remains as to whether the panels and the Appellate Body are able and eligible to decide whether a certain rule has preemptory status. See Pierre-Marie Dupuy, The
Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice, 31 N.Y.U. J. INT’L L. & POL. 791, 801–07 (1999) (arguing
that the International Court of Justice’s role is to recognize the existence of preemptory
rules, which are to be respected in every area of international law).
135. The international legal status of nontrade values often becomes an issue in international trade disputes. See, e.g., Appellate Body Report, European Communities—Measures Concerning Meat and Meat Products (Hormones), ¶¶ 123–25,
WT/DS26/AB/R, WT/DS48/AB/R (Jan. 16, 1998); Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products, ¶¶ 7.86–.89,
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should reflect the object and purpose of the WTO, which includes addressing not only trade interests, but also nontrade interests and values
such as the preservation of the environment.136 However, the integration
of non-law, nontrade values into the dispute settlement system’s decisions could have detrimental effects on the system’s legitimacy if the
panels and the Appellate Body go beyond what is provided in the WTO
Agreement. First, such integration could create an imbalance among the
different sources of subjective legitimacy. Governments, businesses, and
citizens each perceive the dispute settlement system’s legitimacy differently and only share values to a limited extent.137 The sections of the
WT/DS291/R, WT/DS292/R, WT/DS293/R (Sep. 29, 2006). See also U.N. Econ. & Soc.
Council [ECOSOC], Sub-Comm. on Promotion and Prot. of Human Rights, Economic,
Social and Cultural Rights: Mainstreaming the Right to Development into International
Trade Law and Policy at the World Trade Organization, ¶¶ 46–49, U.N. Doc.
E/CN.4/Sub.2/2004/17 (June 9, 2004) (prepared by Robert Howse) (suggesting how the
right to development could affect the interpretation of the WTO Agreement); Jan Bohanes, Risk Regulation in WTO Law: A Procedure-Based Approach to the Precautionary
Principle, 40 COLUM. J. TRANSNAT’L L. 323, 330–38 (2002) (pointing out the ambiguity
of the precautionary principle in international law as well as in WTO law and jurisprudence); Martti Koskenniemi, Constitutionalism as Mindset: Reflections on Kantian
Themes About International Law and Globalization, 8 THEORETICAL INQUIRIES L. 9, 11
(2007) (“What laws mean and the objectives they may appear to have depend on the
judgment of the law-applier.”); Andrew T.F. Lang, Reconstructing Embedded Liberalism: John Gerard Ruggie and Constructivist Approaches to the Study of the International
Trade Regime, 9 J. INT’L ECON. L. 81, 106–09 (2006) (arguing that ideational factors
shape the character of the WTO trade regime); Richard H. Steinberg, Judicial Lawmaking
at the WTO: Discursive, Constitutional, and Political Constraints, 98 AM. J. INT’L L. 247,
261 (2004) (The Appellate Body uses an “interpretative method that is inherently elastic.”). A number of authors believe that
international law is moving towards its ‘constitutionalization’—by which term
these observers denote a development turning the traditional, ‘horizontal,’ minimalist international law governing more or less exclusively relations among
sovereign states in strictly bilateral ways, into something more ‘vertical,’ as it
were—more densely institutionalized, more mature, community-oriented, value-laden, peremptory and hierarchical, according to some even quasi-federalist.
Bruno Simma, Fragmentation in a Positive Light, 25 MICH. J. INT’L L. 845, 845 (2004).
136. For example, the preamble to the Marrakesh Agreement states that the parties to
the WTO Agreement recognize the importance of “allowing for the optimal use of the
world’s resources in accordance with the objective of sustainable development, seeking
both to protect and preserve the environment and to enhance the means for doing so in a
manner consistent with their respective needs and concerns at different levels of economic development.” WTO Agreement, supra note 4, pmbl.
137. For example, the attempt to incorporate labor issues into the WTO has met with
strong opposition from developing countries. See, e.g., Kevin Kolben, Integrative Linkage: Combining Public and Private Regulatory Approaches in the Design of Trade and
Labor Regimes, 48 HARV. INT’L L.J. 203, 210–13 (2007); Jose M. Salazar-Xirinachs, The
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international community that are adversely affected by, or that disagree
with, the protection of a particular non-law, nontrade value would perceive the trade tribunal’s decision as illegitimate. Concerning the system’s
objective legitimacy, it is quite questionable whether the panels and the
Appellate Body have the ability to identify and prioritize the shared values of the international community.138 As a result, if the tribunals attempted to do so and assessed nontrade values not provided in the WTO
Agreement, their reasoning could lose persuasiveness and authority.
IV. ALTERNATIVES TO THE CRITICS’ PROPOSALS
The dispute settlement system is not the only forum that can reflect
civil society’s interests and values vis-à-vis trade.139 In other fora, different balances of legitimacy sources are struck, and the perceptions of
civil society may be given higher importance. The dispute settlement
system’s weak subjective legitimacy on the part of civil society can, and
should, be supplemented in other venues—including the nonjudicial organs of the WTO, other international institutions, as well as regional,
national, and local bodies.140
Trade-Labor Nexus: Developing Countries’ Perspectives, 3 J. INT’L ECON. L. 377, 380–84
(2000).
138. Andrew T. Guzman, Trade, Labor, Legitimacy, 91 CALIF. L. REV. 885, 889–98
(2003); Nichols, Values, supra note 66, at 694–96.
139. The author has described the concept of dispute settlement processes as being
distinct from the dispute settlement system. Under this terminology, the dispute settlement system embodies a set of structures and procedures that are provided in the DSU
and institutionalized within the WTO, whereas the dispute settlement processes adopt a
more comprehensive view, covering both domestic and international processes to settle
trade disputes. Fukunaga, Participation, supra note 90, at 105–06. See also Yuka Fukunaga, Global Economic Institutions and the Autonomy of the Development Policy: A
Pluralist Approach (Dec. 14, 2007) (unpublished conference paper, on file with the
Brooklyn Journal of International Law). See also Paul Schiff Berman, Conflict of Laws,
Globalization, and Cosmopolitan Pluralism, 51 WAYNE L. REV. 1105, 1112–17 (2005);
William W. Burke-White, International Legal Pluralism, 25 MICH. J. INT’L L. 963,
977–78 (2004); Benedict Kingsbury, Editorial Comment, Confronting Difference: The
Puzzling Durability of Gentili’s Combination of Pragmatic Pluralism and Normative
Judgment, 92 AM. J. INT’L L. 713, 723 (1998); Koskenniemi, supra note 122; Krisch,
supra note 80, at 263–74; Gunther Teubner, “Global Bukowina”: Legal Pluralism in the
World Society, in GLOBAL LAW WITHOUT A STATE (Gunther Teubner ed., 1997).
140. See Ernst-Ulrich Petersmann, Justice as Conflict Resolution: Proliferation,
Fragmentation, and Decentralization of Dispute Settlement in International Trade, 27 U.
PA. J. INT’L ECON. L. 273, 306–07, 337–48 (2006) (noting that optimal dispute settlement
requires multilevel procedures, including those at domestic and international levels). See
also Yishai Blank, Localism in the New Global Legal Order, 47 HARV. INT’L L.J. 263,
265–69 (2006) (discussing the new functions of localities in the global legal order).
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The legitimacy of the dispute settlement system should be augmented
either less directly or from outside the system. First, panels and the Appellate Body should endeavor to accommodate the diversity of citizens’
nontrade interests and values, instead of attempting to consider and reflect these interests directly within the dispute settlement system.141 This
accommodation does not imply that the panels and the Appellate Body
should refrain from making any violation findings or recommendations
in complete deference to the policies of WTO members. Instead, it implies that the panels and the Appellate Body should choose an appropriate standard of review depending on the nature of the disputes, in order
not to interfere with the autonomous preferences of citizens, businesses,
and member governments.142 In particular, they should apply a more
deferential standard of review in adjudicating disputes involving nontrade policies, namely, environmental, human rights, and health policies,
which are deliberatively left to the discretion of WTO members.143 In
addition, the procedures that ensure the implementation of DSB recommendations leave room for the responding party to defend the critical
interests and values of its constituents despite its obligation to comply
with the recommendations.144
141. Sabino Cassese, The Globalization of Law, 37 N.Y.U. J. INT’L L. & POL. 973,
987–89 (2005) (“The emerging legal order appears as a binary order, in which differences
coexist with a set of common principles. . . .”). See also IRIS MARION YOUNG, INCLUSION
AND DEMOCRACY 265–71 (2000) (stating that international institutions should respect the
self-determination of citizens).
142. See Paolo G. Carozza, Subsidiarity as a Structural Principle of International
Human Rights Law, 97 AM. J. INT’L L. 38, 42–46, 68–70 (2003) (“[Subsidiarity] purports
to affirm a universal common good while still requiring ample room for pluralism in the
concrete determination and application of that good.”).
143. MATTHIAS OESCH, STANDARDS OF REVIEW IN WTO DISPUTE RESOLUTION 28–33
(2003) (“[T]he standards of review subtly balance the delicate conflict over legal and
political authority between panels and national authorities in trade and trade-related matters governed by the WTO agreements.”); Steven P. Croley & John H. Jackson, WTO
Dispute Procedures, Standard of Review, and Deference to National Governments, 90
AM. J. INT’L L. 193, 194, 205–06, 211–13 (1996) (“The standard-of-review question”
implicates an “allocation of power between national governments and international institutions on matters of vital concern to many governments, as well as the domestic constituencies of some of those governments.”); David Winickoff et. al., Adjudicating the GM
Food Wars: Science, Risk, and Democracy in World Trade Law, 30 YALE J. INT’L L. 81,
106–11 (2005). Further study, though, is necessary to reveal how the standards of review
should be chosen and applied in order to balance the need to enhance compliance with
the WTO Agreement and the need to accommodate the diverse interests and values of
civil society.
144. See Fukunaga, Compliance, supra note 122, at 399–426 (providing a detailed
analysis on mechanisms that ensure the implementation of DSB recommendations). Dispute settlement rulings do not have direct applicability in the domestic legal orders of
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Second, citizens should build a domestic partnership with their governments and thereby influence trade policy.145 For example, governments can be encouraged to hold public hearings146 or to take nontrade
concerns into account147 when crafting dispute settlement strategies.148
Conflicts of interests and values among citizens can be better coordinated
within the domestic sphere. And the full representation of citizens’ concerns in the domestic sphere would render redundant their direct reflection in the dispute settlement system.149
Finally, interaction between the WTO’s nonjudicial organs150 and other international institutions can address the dispute settlement system’s
lack of legitimacy as perceived by civil society. While the interaction of
the dispute settlement system with other international institutions may
raise questions of independency,151 the WTO’s nonjudicial organs are
major WTO members, and in this sense, members retain discretion regarding whether and
how to internalize the rulings. See, e.g., Anupam Chander, Globalization and Distrust,
114 YALE L.J. 1193, 1215–16 (2005); Thomas Cottier & Krista Nadakavukaren Schefer,
The Relationship Between World Trade Organization Law, National and Regional Law, 1
J. INT’L ECON. L. 83, 102–10 (1998); Krisch, supra note 80, at 259–60, 267–69; Joel P.
Trachtman, Bananas, Direct Effect and Compliance, 10 EUR. J. INT’L L. 655 (1999).
145. See Armin von Bogdandy, Constitutionalism in International Law: Comment on a
Proposal from Germany, 47 HARV. INT’L L.J. 223, 235–36 (2006) (asserting that one
fundamental difference between the international community and national communities is
that in national communities “the foremost source of governmental legitimacy” is “the
people”). See also John H. Jackson, Sovereignty-Modern: A New Approach to an Outdated Concept, 97 AM. J. INT’L L. 782, 792 (2003); Nichols, Standing, supra note 52, at
686.
146. See, e.g., Trade Act of 1974, 19 U.S.C.A. § 2414(b)(1)(A) (West 2008) (The
United States Trade Representative “shall provide an opportunity . . . for the presentation
of views by interested persons, including a public hearing if requested by any interested
person” before taking any action under Section 301.).
147. See, e.g., Council Regulation (EC) No. 3286/94 of 22 Dec. 1994, art. 8.1, 1994
O.J. (L 349) 71 (The European Commission may take action under the Trade Barriers
Regulation only if it is “in the interest of the Community.”).
148. Peter M. Gerhart, The Two Constitutional Visions of the World Trade Organization, 24 U. PA. J. INT’L ECON. L. 1, 61–70 (2003) (“[T]he WTO regime provides . . . a set
of procedural protections [in the domestic sphere] for foreigners when a state takes action
that affects their interests.”).
149. John R. Bolton, Should We Take Global Governance Seriously?, 1 CHI. J. INT’L L.
205, 217–18 (2000) (“Civil society’s ‘second bite at the apple’ raises profoundly troubling questions of democratic theory that its advocates have almost entirely elided.”).
150. The nonjudicial organs of the WTO include the political organs, such as the Ministerial Conference, the General Council, and other councils and committees, including
the Trade Negotiations Committee and its subsidiary bodies, as well as the WTO Secretariat. See BROUDE, supra note 8, at 23–24.
151. See supra Part I.A. This does not deny the value of the interaction between the
dispute settlement system and other international institutions. In fact, panels occasionally
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not as constrained in this respect and may actively cooperate with other
international bodies.152 For example, the interaction between the WTO’s
negotiating bodies and international human rights institutions would allow the former to draft WTO rules that are more consistent with human
rights standards.
CONCLUSION
Today, a number of international institutions with narrow mandates are
inextricably intertwined with domestic legal orders. It is under these circumstances that citizens raise criticisms against the legitimacy of the
dispute settlement system and demand that it reflect their interests and
values. This Article has argued that fulfilling this demand may be problematic, as the perceptions of civil society are merely one of several
sources of the dispute settlement system’s legitimacy. There are necessary tradeoffs between sources of legitimacy, and these tradeoffs should
be carefully considered if the overall legitimacy of the system is not to be
compromised.
obtain information from other international institutions, and this is expected to add authority to their rulings. See, e.g., Panel Report, European Communities—Protection of
Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, ¶¶
2.16–.18, 7.234, WT/DS290/R (Mar. 15, 2005) (requesting the International Bureau of
the World Intellectual Property Organization to provide any factual information relevant
to the interpretation of certain provisions of the Paris Convention for the Protection of
Industrial Property); Panel Report, Dominican Republic—Measures Affecting the Importation and Internal Sale of Cigarettes, ¶¶ 1.8, 7.138–.154, WT/DS302/R (Nov. 26, 2004)
(requesting the International Monetary Fund to provide certain information pursuant to
the agreement between it and the WTO).
152. ALAN BOYLE & CHRISTINE CHINKIN, THE MAKING OF INTERNATIONAL LAW 24–28,
99–103, 137–41 (2007). The author does not exclude the possibility of interaction between the nonjudicial organs of the WTO and civil society. While the participation of
citizens in the formal political processes of the WTO could be harmful to the legitimacy
of the WTO, cooperation with civil society in informal settings might contribute to enhancing its legitimacy. In fact, the General Council has adopted guidelines for the participation of nongovernmental organizations in the WTO processes. World Trade Organization General Council, Guidelines for Arrangements on Relations with Non-Governmental
Organizations, WT/L/162 (July 23, 1996).
COMPETITION AND COMITY
IN THE FRAGMENTATION OF
INTERNATIONAL LAW
William Thomas Worster*
INTRODUCTION
The international legal system encompasses a variety of legal norms,
but the perceived increase in “fragmentation” of these norms has recently
been seen as a problem for the system as a whole.1 A few notable cases
have highlighted the difficulties of a variety of tribunals reaching contradictory results. One example is the direct conflict between the decision of
the International Court of Justice (“ICJ”) in the Nicaragua case2 and the
decision of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) in the Tadić case.3 In Tadić, the ICTY took the position
that the “effective control” test, as formulated by the ICJ for determining
whether a foreign State is responsible for an internal civil war, was too
demanding.4 Instead, the ICTY held that the foreign State need only have
had “a role in organizing, coordinating, or planning the military actions
of the military group.”5 Interestingly, the ICTY did not suggest that this
test is lex specialis for international individual criminal responsibility,
but, rather, that the ICJ’s “effective control” test should be displaced
entirely.6
This conflict between the ICJ and the ICTY is hardly isolated.7 There
is a perception that “courts in various countries are increasingly dissatis* Lecturer and Senior Fellow, International Law, Bynkershoek Institute, The Hague
University; LL.M. (Adv.) in Public International Law, Leiden University, Faculty of
Law, Leiden, The Netherlands; J.D., Chicago-Kent College of Law, Illinois Institute of
Technology, Chicago, Illinois; B.A., Modern European History, University of Kansas,
Lawrence, Kansas.
1. For a commentator’s negative portrayal of “fragmentation,” see Gerhard Hafner,
Pros and Cons Ensuing from Fragmentation of International Law, 25 MICH. J. INT’L L.
849, 849–50 (2004).
2. Military and Paramilitary Activities (Nic. v. US), 1986 I.C.J. Rep. 64–65, ¶ 115
(June 27).
3. Prosec. v. Tadić, Case No. IT-94-1-A, Judgment, ¶ 116–45 (July 15, 1999).
4. Id.
5. Id. ¶ 137, at 59.
6. Id.
7. For example, the MOX Plant litigation comprises of a number of cases brought by
Ireland against the United Kingdom regarding a nuclear reprocessing plant; these cases
were litigated in several different fora and, notably, involved a conflict of jurisdiction.
See, e.g., MOX Plant (No. 10) (Ir. v. U.K.), 41 I.L.M. 405 (Int’l Trib. L. of the Sea 2001);
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fied with traditional rules [for resolving conflicts of jurisdiction and
norms, considering them to be] inadequate in a modern, globalizing
world.”8 Consequently, many writers have suggested forms of increased
comity among international tribunals in order to combat the problems
associated with fragmentation; indeed, locating harmonies among international legal regimes within a coherent international legal system appears to be the dominant trend.9 The proposals of Joost Pauwelyn10 and
Yuval Shany,11 as well as to some degree the work of the International
Law Commission (“ILC”) on fragmentation,12 are characteristic of the
comity solution. Yet these perspectives dismiss, or at the very least,
largely overlook, the benefits of competition among international tribunals. The international legal system need not identically reproduce a
MOX Plant (No. 3) (Ir. v. U.K.), 42 I.L.M. 1187 (Perm. Ct. Arb., 2003) [hereinafter PCA
Mox Plant Case No. 3]; Dispute Concerning Access to Information Under Art. 9 of the
OSPAR Convention (Final Award) (Ir. v. U.K.), 42 I.L.M. 118 (Perm. Ct. Arb., 2003).
See also Nikolaos Lavranos, The Mox Plant and Ijzeren Rijn Disputes: Which Court is
the Supreme Arbiter?, 19 LEIDEN J. OF INT’L L. 223 (2006) (discussing the need for a
hierarchy amongst international courts and tribunals in order to avoid the fragmentation
of international law).
8. Jay L. Westbrook, International Judicial Negotiation, 38 TEX. INT’L L.J. 567, 586
(2003). See also Christopher J. Borgen, Resolving Treaty Conflicts, 37 GEO. WASH. INT’L
L. REV. 573, 574–75 (2005) (arguing that fragmentation is caused by treaty conflicts and
that a new approach should be established to resolve these conflicts).
9. See Paul R. Dubinsky, Human Rights Law Meets Private Law Harmonization:
The Coming Conflict, 30 YALE J. INT’L L. 211, 216 (2005) (“The most promising approach is to establish a set of common principles meant to harmonize the procedural
means by which national courts adjudicate grave human rights violations.”).
10. See JOOST PAUWELYN, CONFLICT OF NORMS IN PUBLIC INTERNATIONAL LAW: HOW
WTO LAW RELATES TO OTHER RULES OF INTERNATIONAL LAW (2003) [hereinafter
PAUWELYN, CONFLICT]; Joost Pauwelyn, Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands, 25 MICH. J. INT’L L. 903 (2004) [hereinafter Pauwelyn, Bridging]; Joost Pauwelyn, Going Global, Regional, or Both?: Dispute
Settlement in the Southern African Development Community (SADC) and Overlaps with
the WTO and Other Jurisdictions, 13 MINN. J. GLOBAL TR. 231 (2004) [hereinafter
Pauwelyn, Going Global].
11. See YUVAL SHANY, THE COMPETING JURISDICTIONS OF INTERNATIONAL COURTS
AND TRIBUNALS (2002); Yuval Shany, Contract Claims vs. Treaty Claims: Mapping Conflicts Between ICSID Decisions on Multisourced Investment Claims, 99 AM. J. INT’L L.
835 (2005).
12. See Int’l Law Comm’n, Report of the Study Group, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International
Law, U.N. Doc. A/CN.4/L.702 (July 18, 2006) (finalized by Martti Koskenniemi) [hereinafter ILC, July 18 Rep.]; Int’l Law Comm’n, Report of the Study Group, Fragmentation
of International Law: Difficulties Arising from the Diversification and Expansion of International Law, U.N. Doc. A/CN.4/L.682 (Apr. 13, 2006) (finalized by Martti Koskenniemi) [hereinafter ILC, Apr. 13 Rep.].
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domestic legal system, even if it were possible to do so. If we accept contradictions and disparities in different tribunals’ conclusions as inherent
in and perhaps even beneficial to international law, then conflicts related
to fragmentation are not so objectionable. Competition among tribunals
can itself serve as the coherence of the international legal system, albeit
not in the unitary, constitutional form of harmonized norms that some
may desire.
The argument that international tribunals should consider embracing
competition among themselves proceeds in three stages. Part I discusses
comity as a solution to conflicts emerging from fragmentation, in particular, the work of Joost Pauwelyn, Yuval Shany, and the ILC. Part II
observes the reality of competition among tribunals, specifically discussing the viewpoints of Anne-Marie Slaughter, Yves Dezalay, and Bryant
Garth. Part III assesses the drawbacks and benefits of competition, concluding that competition among tribunals can result in constructive
diversity, rather than destructive fragmentation. International justice can
be realized best not by developing new forms of comity or attempting to
politically replace one regime with another, but, rather, by accepting the
diversity of norms and tribunals in the system and allowing them to be
subject to a kind of natural selection.
I. COMITY AS A SOLUTION
In weighing the benefits of increased comity and competition, the first
inquiry is: what is meant by “comity”? As one scholar has noted,
“[D]espite ubiquitous invocation of the doctrine of comity, its meaning is
surprisingly elusive.”13 Comity can mean anything from the foundation
of international law to mere courtesy, from rules of jurisdiction to the
discretion to decline a case.14
An example of comity serving as a rule of respect for the sovereignty
and competence of another legal actor can be found in the MOX Plant
cases.15 In these cases, the tribunal formed under the U.N. Convention on
the Law of the Sea suspended its proceedings to provide the European
Court of Justice (“ECJ”) an opportunity to reach a decision on a pending
application concerning issues similar to those the tribunal was confronting. The tribunal reasoned that that ECJ might be better suited to answer
the questions at hand.16 There was no immediate threat of reaching a conflicting decision, just an initial conflict of jurisdiction. The tribunal
13.
14.
15.
16.
Joel R. Paul, Comity in International Law, 32 HARV. INT’L L.J. 1, 4 (1991).
See generally id., at 44–54, 70–77.
PCA Mox Plant Case No. 3, supra note 7, ¶ 28.
Id. ¶ 29.
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explained that the stay was required by the “mutual respect and comity
that should [exist] between judicial institutions” deciding on rights and
obligations as between States, and entrusted with the function of assisting States in the peaceful settlement of disputes between them.17
A distinction can be made between a deferral under comity out of
respect for another judicial body and a deferral under comity out of respect for a State generally.18 Some legal systems, however, have denied
that comity is practiced out of international respect for another sovereign,
instead explaining that it arises from a demand for substantive justice,19
which may encompass the principles of diplomatic or sovereign immunity,20 or the recognition of foreign court judgments.21 For the purposes of
this Article, the important distinction is whether the discretion exercised
is one of legal principle or courtesy.
Comity is known in both common law and civil law countries.22 In
general, common law systems practice comity as discretion,23 whereas
civil law systems are inclined to refute that comity is discretionary,
arguing that exercising discretion would be an abuse of judicial power.24
While civil law courts may reach similar results as their common law
counterparts, they do so under legally binding principles, rather than by
mere courtesy.25 These principles of comity in civil law countries generally tend to be seen as principles of binding public international law,26 a
notion common law countries generally reject.27 Common law countries,
however, have historically maintained that the distinction between public
and private comity is false.28 Hersch Lauterpacht, for example, has de17. Id. ¶ 28.
18. See Upendra Baxi, Geographies of Injustice, in TORTURE AS TORT: COMPARATIVE
PERSPECTIVES ON THE DEVELOPMENT OF TRANSNATIONAL HUMAN RIGHTS LITIGATION
197, 205 (Scott Craig ed., 2001).
19. See Paul, supra note 13, at 44–54.
20. See id.
21. See id. at 2 (citing MARK JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 250
(1988)).
22. See id. at 44–54.
23. See Harold G. Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 AM. J. INT’L L. 280, 281 (1982).
24. See Paul, supra note 13, at 33. See also Case C-281/02, Owusu v. Jackson, 2005
E.C.R. I-1383 (criticizing the forum non conveniens principle as incompatible with European regulation).
25. See Ralf Michaels, Two Paradigms of Jurisdiction, 27 MICH. J. INT’L L. 1003
(2006); Paul, supra note 13, at 32.
26. See Paul, supra note 13, at 28.
27. See Maier, supra note 23.
28. See Paul, supra note 9, at 25–26 (discussing how leading European scholars in the
nineteenth century did not see a distinction between the private and the public and “ar-
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nied comity to be a binding principle of public international law, and instead argued it to be a matter of respect among sovereigns.29
Thus, it is clear that there is no simple definition for comity and that
because of these differences between legal cultures, the criteria for invoking comity vary widely among national jurisdictions. Some believe a
tribunal must examine the interests of the forum while keeping in mind
its role as a facilitator of interfora questions and resolver of conflicts
within the international legal system.30 Others criticize considering interstate political relations and demand that a tribunal simply apply its law
without regard to these issues.31
Despite the difficulty of defining comity, it appears to be a way for injecting international politics directly into a tribunal’s considerations that
is separate from the “mechanical” act of legal interpretation.32 Given the
flexible and broad notion of comity, it might best be described “[a]s a
bridge . . . meant to expand the role of public policy, public law, and international politics in [the judiciary].”33 The results of applying comity or
quasi-comity principles of law can be similar, notwithstanding various
interpretations; a court uses these principles to defer to another sovereign
regarding certain issues, but not others, based on a balance struck between competing policies.34 As a result, any use or advocacy of comity
must be an assertion of some extralegal policy choices.
gued in varying degrees that private international law derived from public international
law,” but noting that in the United States, a private/public distinction did exist.)
29. See HERSCH LAUTERPACHT, INTERNATIONAL LAW 43–46 (E. Lauterpacht ed.,
1970); Hersch Lauterpacht, Allegiance, Diplomatic Protection and Jurisdiction Over
Aliens, 9 CAMBRIDGE L.J. 330, 331 (1945).
30. See Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L.
REV. 429, 478 n.193 (2003); Ernst-Ulrich Petersmann, Justice as Conflict Resolution:
Proliferation, Fragmentation and Decentralization of Dispute Settlement in International
Trade, 27 U. PA. J. INT’L ECON. L. 273 (2006). See also Ernst-Ulrich Petersmann, Constitutionalism and International Adjudication: How to Constitutionalize the U.N. Dispute
Settlement System?, 31 N.Y.U. J. INT’L L. & POL. 753, 774–79 (1999) (“In international
economic law, ‘cooperation among international courts’ has been recognized as an important tool for promoting an international ‘community of law.’”).
31. See Maier, supra note 23, at 288.
32. See Paul, supra note 13, at 54–56.
33. Id. at 7.
34. See id. at 2 (“Comity is a ready explanation for much of what courts do in public
and private international law. In the name of comity, U.S. courts often recognize and
enforce foreign judgments or limit domestic jurisdiction to hear claims or apply law, even
where foreign law is contrary to U.S. law or policy. Guided by notions of comity, courts
consider competing foreign and domestic interests.”).
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Regardless of its nature, comity is often conceived as part of a coherent
field of international law.35 One’s perspective on the nature of the international legal system informs not only how comity is applied, but also
how it is best applied. If one sees the international legal system as a coherent whole (or a system with the objective of forming a coherent
whole), then one’s policy choice is to place emphasis on the integrity of
the system. After all, comity is a way for one legal actor to defer to
another.36 However, if one does not see a coherent whole, but rather,
independent, competing legal actors, a system “mostly of erratic blocks
and elements as well as different partial systems,”37 what kind of comity
should be exercised?
A. Joost Pauwelyn’s View
Joost Pauwelyn has made an effort to bring together public international legal rules while still recognizing the differences among nations and
their respective freedom to refuse to defer to others’ rules. He draws
general conclusions for international tribunals from the World Trade Organization (“WTO”). Finding that the WTO must contemplate the entire
corpus of international law,38 he creates the metaphor of “inter-connected
islands”: legal orders, of which the WTO is one, that are self-contained
to some degree, but also regard each other through their connections in
general international law.39 With this expression, he describes a fairly
coherent international legal system respected by tribunals, regardless of
their specialty; although they may conflict over jurisdiction, they do not
seek to impose differing legal norms.40
Pauwelyn defines conflict more broadly than two situations demanding
two distinct outcomes. For him, certainly, the notion of a conflict
includes situations in which one outcome demands a violation of the
35. But see id. at 8–9 (“[T]he peculiar strain [of comity] that developed in the classical doctrine of comity in the United States resulted in part from the incoherence of the
doctrine itself. This incoherence is both traceable to, and well represented by, the Supreme Court’s opinion in Hilton v. Guyot, which is the most commonly cited statement of
comity in U.S. law.”).
36. Westbrook, supra note 8, at 579.
37. Hafner, supra note 1, at 850. See also William Burke-White, International Legal
Pluralism, 25 MICH. J. INT’L L. 963, 964 (2004) (discussing the fragmented nature of international law discourse).
38. PAUWELYN, CONFLICT, supra note 10, at 440 (“The thrust of [this] book [is] to
portray WTO law as part of the wider corpus of public international law.”).
39. See Pauwelyn, Bridging, supra note 10.
40. See id.
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other,41 but his definition also includes situations involving a conflict
between an obligation and a right,42 which is not a particularly narrow
reading of the meaning of conflict. He also finds it important to distinguish between a direct, facial conflict of norms and a conflict of norms
that arises only from the interpretive and implementation process.43
Having identified the kinds of conflicts he will address, Pauwelyn then
proposes rules for resolving conflicts of jurisdiction and norms by referring to already existing rules of public international law. For example, he
looks to explicit conflicts clauses, lex posterior and lex specialis rules,
and the laws on state responsibility.44 In other work, he discusses forum
non conveniens, res judicata, abuse of process, and lis alibi pendens45 as
additional existing methods in international law to resolve conflicts of
jurisdiction. Some conflicts result in the invalidity of one of the norms;
others result in the priority of one norm over the other.46 A tribunal may
only find a true conflict if the usual methods of international law for
dealing with conflicts fail.
One argument against such an approach—namely, using the WTO as a
guideline for other tribunals—is that the WTO Dispute Settlement Understanding (“DSU”) specifically accepts general international law as an
interpretive tool,47 whereas other bodies may not. In particular, ad hoc
arbitral tribunals, or national courts hearing disputes with an international
character, do not necessarily accept the entire corpus of general international law.48 Although one could argue that the DSU’s endorsement of
41. PAUWELYN, CONFLICT, supra note 10, at 175–76 (“Essentially, two norms are,
therefore, in a relationship of conflict if one constitutes, has led to, or may lead to, a
breach of the other.”).
42. Id. at 171–72, 178–88.
43. Id. at 176.
44. Id. at 327–43.
45. See Pauwelyn, Going Global, supra note 10.
46. PAUWELYN, CONFLICT, supra note 10, at 178–88.
47. See Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization,
Annex 2, Legal Instruments—Results of the Uruguay Round, 1869 U.N.T.S. 401, 33
I.L.M. 1125, art. 3 (1994) [hereinafter DSU]; Appellate Body Report, U.S.— Standards
for Reformulated and Conventional Gasoline, ¶ 17, WT/DS2/AB/R (Mar. 20, 1996)
(holding that the DSU Article 3.2 requires WTO agreements to be interpreted in accordance “with customary rules of interpretation of public international law”).
48. For a discussion on ad hoc tribunals, see, for example, ALAN REDFERN & MARTIN
HUNTER, LAW AND PRACTICE OF INTERNATIONAL COMMERCIAL ARBITRATION 127 (4th ed.,
2004). “The reference to ‘such rules of international law as may be applicable’ (as, for
example, in the Washington Convention), or to ‘the relevant principles of international
law’ (as in the Channel Tunnel Treaty) [helps] remind us that it is not the whole corpus
of law, but only certain specific rules of law that are likely to be relevant in any given
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general international law as an interpretive guideline49 suggests that the
rules of the Vienna Convention on the Law of Treaties (“Vienna Convention”) would not apply without it, the contrary argument could also
be made: the DSU codifies what should have been understood before its
formation. In fact, the WTO Panel in Korea—Measures Affecting Government Procurement stated that the purpose of the DSU provision was
to resolve the issues stemming from the pre-WTO era when adjudicators
under the General Agreement on Tariffs and Trade (“GATT”) failed to
follow the customary rules of treaty interpretation properly.50
Moreover, the WTO’s acceptance of general international law is
phrased in terms of using the law to guide the interpretation of the WTO
Agreements, not to impose additional obligations independent from, or
superior to, the Agreements.51 It is clear from the terms of the DSU itself
that general international law is a valid interpretive tool, but the DSU
does not indicate that non-WTO obligations may be transported into the
WTO context.52 There is no support in the text of the WTO Agreements
for applying a non-WTO defense against a WTO obligation. If Pauwelyn
finds that such defenses may be entertained, there would appear to be no
similar prohibition against a WTO tribunal hearing the merits of a nonWTO claim as well. Furthermore, as Bruno Simma has observed, “[T]he
exclusion or modification through a ‘self-contained regime’ or ‘normal’
secondary rules which leads to a ‘softening’ of the legal consequences of
wrongful acts should not easily be presumed.”53 Accordingly, Pauwelyn’s conclusion that the WTO should be a model for international
tribunals generally may be unwarranted.
An additional critique of Pauwelyn’s perspective is that integrating
WTO law into substantive nontrade international law may go against the
intent of the parties to the WTO and may be counterproductive to achieving the human rights and environmental objectives that Pauwelyn
appears to endorse. The parties to the WTO presumably negotiated the
Agreements with the intent of establishing a self-contained regime,
allowing the terms of the Agreements to be interpreted in the light of
dispute.” Id. For a discussion on national courts, see, for example, Medellin v. Texas, 128
S.Ct. 1346, 1361–62 (2008) (holding that the Vienna Convention on Consular Relations,
though it was adopted as a treaty, was not incorporated into U.S. law by implementing
legislation, which would provide a mechanism for direct enforcement).
49. See DSU, supra note 47, art. 3.2, at 1227.
50. Panel Report, Korea—Measures Affecting Government Procurement, ¶ 7.96,
WT/DS163/R (May 1, 2000).
51. DSU, supra note 47, art. 3.2, at 1227.
52. Id. art. 1(1), at 1227.
53. Bruno Simma, Self-Contained Regimes, 16 NETHERLANDS Y.B. OF INT’L L. 111,
135 (1985).
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general international law, while refusing to grant competence to hear
non-WTO law matters, as defenses or otherwise.54 The political tradeoffs of such negotiation should not be dismissed lightly: “by establishing
‘self-contained regimes,’ States contract out of the general rules on the
consequences of treaty violations on the expectation that these regimes
will work to their mutual benefit.”55 The parties may have specifically
intended certain outcomes, either by limiting the competence of the organization or even by making the organization entirely ineffective.56 This
perspective does not imply that nontrade goals are irrelevant for the development of WTO law, since the negotiators of the WTO Agreements
could have intended trade liberalization as one vehicle for reducing poverty and otherwise improving global welfare57 (even though it might
impact the environment adversely). Moreover, Pauwelyn’s proposal risks
undermining the WTO regime. If decisions are based on agreements
outside the WTO’s specific competence, they may be less likely to be
complied with, as Member Parties may view those decisions as less legitimate and may bring their claims to the WTO less frequently.
One of the fundamental points Pauwelyn makes is the right to “contract out” of existing norms while still maintaining respect for international law already in force, even if a negotiated treaty does not.58 This
deference includes the obligation to apply pre-existing norms in a forum,
but within the limits of the tribunal’s competence. For example, the
WTO must apply other norms as defenses, although it is not competent
to enforce the norms themselves.59 A possible illustration of the WTO
applying this kind of rule might be Ernst-Ulrich Petersmann’s proposal
for the WTO to acknowledge its members’ human rights obligations.60
54. Francesco Francioni, WTO Law in Context: The Integration of International
Human Rights and Environmental Law in the Dispute Settlement Process, in THE WTO
AT TEN: THE CONTRIBUTION OF THE DISPUTE SETTLEMENT SYSTEM 143–45 (Giorgio
Sacerdoti, Alan Yanovich & Jan Bohanes eds., Cambridge Univ. Press, 2006). See also
WORLD TRADE ORG. INFO. & MEDIA RELATIONS DIV., UNDERSTANDING THE WTO (3d ed.
2007), available at http://www.wto.org/english/thewto_e/whatis_e/tif_e/understanding_e.pdf.
55. Simma, supra note 53, at 136.
56. See Martinez, supra note 30, at 469.
57. See generally, e.g., Sandra E. Black & Elizabeth Brainerd, Importing Equality?:
The Impact of Globalization on Gender Discrimination, 57 INDUS. & LAB. REL. REV. 540
(2004) (examining the impact of globalization on gender discrimination in manufacturing
industries).
58. PAUWELYN, CONFLICT, supra note 10, at 37–40, 212–18.
59. See id. at 228–36.
60. Ernst-Ulrich Petersmann, Human Rights and International Trade Law: Defining
and Connecting the Two Fields, in HUMAN RIGHTS AND INTERNATIONAL TRADE 29, 70 (L.
Burgi et al. eds., 2005).
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Interestingly, Pauwelyn’s conclusion is that, in a conflict, many international legal norms may result in the nonapplication of WTO law.61
Essentially, he believes that since all international legal norms apply (unless contracted out), there really is no conflict.62 The difficulty with this
argument is that, while States may “contract out,” it is not entirely clear
that the WTO Agreements establishing the rules of trade liberalization
“contracted out” of the rules otherwise governing the interactions of
States. While it is assumed that the rules of general international law
apply before all tribunals unless specifically exempted from application,
just the opposite could be argued: the WTO is a tribunal whose competence is deliberately limited to the WTO Agreements.63
This argument is based on Pauwelyn’s interpretation of the WTO obligations as “reciprocal,” rather than “integral,” as might be expected in a
multilateral treaty.64 In contrast, though, Pauwelyn interprets other international obligations as truly “integral” and thus owed erga omnes.65
Conveniently, “reciprocal” obligations may be modified between the
parties, regardless of other multilateral partners’ opinions, whereas
“integral” obligations may not.66 The happy result is that “integral” treaties concluded before the WTO Agreements, such as some human rights
treaties, remain in force and are not modified by the WTO Agreements.
However, “integral” treaties concluded after the WTO Agreements can
modify those obligations. This is problematic because although the WTO
tribunals may issue decisions aimed at the withdrawal of the offending
provisions, they do not have the authority to order their withdrawal; instead, compensation may be awarded if a State chooses to continue main-
61. PAUWELYN, CONFLICT, supra note 10, at 490–92. See also Pauwelyn, Bridging,
supra note 10, at 911.
62. Pauwelyn, Bridging, supra note 10, at 915–16 (“Especially before a particular
court or tribunal, it is important to include all international law binding between the parties as part of the applicable law, even if the jurisdiction of the adjudicator is limited to a
given treaty (say, WTO covered agreements). If all courts and tribunals follow this approach, it would mean that, although they may have jurisdiction to examine different
claims, in doing so they would apply the same law. Hence, in theory, no conflicts should
arise.”).
63. See, e.g., European Communities—Measures Affecting the Importation of Certain
Poultry Products, ¶ 79, WT/DS69/AB/R (July 13, 1998) (adopted July 23, 1998) (holding that a separate bilateral agreement between the parties was not a WTO agreement
within the WTO’s competence).
64. See PAUWELYN, CONFLICT, supra note 10, at 69–88. For an overview of the distinction between “reciprocal” and “integral,” see id. at 52–88.
65. See, e.g., id. at 74–75 (characterizing the Genocide Convention and European
Communities’ treaties as “integral”).
66. See id. at 53.
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taining those measures.67 Such possibility demonstrates that States have
some freedom to violate the WTO Agreements, albeit in violation of a
moral obligation to comply.68 This interpretation is also troublesome because conflicts between tribunals’ jurisdiction and jurisprudence might
be subject to a classification of the conflict, regardless of whether the
obligation in question is “integral” or “reciprocal,” or whether it is a prohibition or a right. Although Pauwelyn observes that the interpretation of
treaties evolves,69 he does not acknowledge that the classification of
norms might similarly evolve.
An even larger problem with Pauwelyn’s view is his assumption that
existing rules of public international law (which provide options for
managing conflicts) apply to certain kinds of conflicts. As previously
discussed, even this concept is plagued with a variety of interpretations.
In cases of “inherent normative conflicts,”70 there may not be agreement
on the normative force of explicit conflicts clauses, and on lex posterior
and specialis rules, among other conflict resolution techniques.
Curiously, Pauwelyn also acknowledges the general benefit of decentralized competition, noting that “multiple proceedings may actually be
helpful as long as each tribunal stays within the limits of its jurisdiction
and defers to the other tribunal when it comes to deciding matters falling
within that tribunal’s jurisdiction,”71 as “different conclusions based on
the same law . . . may even have positive side effects: [t]hrough competition the best interpretation is likely to surface.”72 However, his general
approach is not one of true competition among tribunals, but of promoting a constitutionalizing process.
In sum, Pauwelyn’s version of comity appears to be a legal one in the
civil law tradition, not an overtly discretionary pursuit of policy objectives. In reality, however, Pauwelyn is advocating for the primacy of
human rights obligations over WTO law as a political end in itself, not as
the result of the objective application of rules of interpretation. He proposes a rather radical restructuring of the relationships among international tribunals, as well as a radical restructuring of their competence,
67. DSU, supra note 47, art. 22(2), at 1239.
68. This moral obligation is articulated in the Vienna Convention, which notes that
under pacta sunt servanda “[e]very treaty in force is binding upon the parties to it and
must be performed by them in good faith.” Vienna Convention on the Law of Treaties
art. 26, May 23, 1969, 1155 U.N.T.S. 331.
69. Pauwelyn, Bridging, supra note 10, at 907.
70. Kalypso Nicolaïdis & Joyce L. Tong, The Continuing Debate Over New Sources
of International Law, 25 MICH. J. INT’L L. 1349, 1372 (2004).
71. Pauwelyn, Going Global, supra note 10, at 295.
72. Pauwelyn, Bridging, supra note 10, at 916.
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although he relies on existing rules of international law, selecting certain
legal objectives such as effectiveness, and techniques such as lex posterior. By selecting objectives and techniques that do not appear to reflect
policy choices, he brings extra-WTO issues into the fold and constitutionalizes the WTO within the international legal system.
B. Yuval Shany’s View
Yuval Shany also recommends a form of comity to increase the effectiveness of international dispute settlement.73 He suggests mechanisms
for resolving conflicts of jurisdiction, not conflicts of obligations. These
mechanisms include increased comity (i.e., the conservative exercise of
jurisdiction based on respect) and the harmonization of conflict rules.74
Whereas Pauwelyn offers pre-existing rules of public international law to
resolve normative conflicts, Shany transports private international law’s
jurisdictional conflict rules into the sphere of public international law.
These jurisdictional conflict rules embrace concepts such as forum non
conveniens, res judicata, and lis alibi pendens.75 In later work, Shany also
proposes abus de droit to prevent parties from taking advantage of alternate fora in bad faith, by forum shopping or otherwise.76 Although Shany
acknowledges that various legal actors are independent of one another,
he, like Pauwelyn, views international law as a coherent system whose
dangerous conflicts need only be “solved” by clear rules.
One problem with Shany’s analysis is that aspects of comity, especially the concepts of forum non conveniens and bad faith, are highly discretionary.77 Thus, they are a rather unpredictable tool for constructing an
international legal system that is supposed to be able to resolve conflicts
predictably. Shany identifies where consistent practice can be found for
discretionary policy, such as with lis alibi pendens and res judicata, but
also notes where it cannot.78 Although he concedes that competition
among fora may develop better, more harmonious policies (just as Pauwelyn appears to do), his definition of competing fora is narrow. Shany
73. See generally SHANY, supra note 11.
74. Id. at 266, 271.
75. See id. at 269–70.
76. See Shany, supra note 11, at 849.
77. See Andrea K. Bjorklund, Private Rights and Public International Law: Why
Competition Among International Economic Law Tribunals is Not Working, 59 HASTINGS
L.J. 241 (2007). See also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507–08 (1947) (“The
principle of forum non conveniens is simply that a court may resist imposition upon its
jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. .
. . [T]he doctrine leaves much to the discretion of the court to which plaintiff resorts.”).
78. SHANY, supra note 11, at 269–71.
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argues that tribunals are only in competition if they are likely to produce
similar results on the same issue.79 Yet, the “lis alibi pendens rule [and
the res judicata requirement] . . . [do] not apply to courts of different national, regional, and worldwide legal systems unless such a prohibition
has been explicitly provided.”80
Despite Shany’s examples, increasing the degree of discretion for tribunals is an unlikely political goal. For example, as José Alvarez has
observed:
At least some of the [North American Free Trade Agreement] parties
appear to be having second thoughts about the scope of discretion that
they have handed over to [International Convention on the Settlement
of Investment Disputes] arbitrators and appear to be turning to interpretative statements ‘to take the power of decision away.’81
Judge Guillaume might add that in order to apply norms drawn from
national courts, including lis alibi pendens and res judicata, the international legal system might also need to adopt rules of court hierarchy, as
national court systems have done.82 Shany acknowledges that until more
harmonized rules are developed, his conflict resolution policies appear
very political. Many commentators have observed that tribunals are often
very conscious of the appearance that they create law.83 It seems strange
for Shany to propose the development of rules by tribunals for the sake
of legitimacy and effectiveness while worrying that the rules he proposes
might appear to have been politically developed.
In contrast to Pauwelyn, Shany’s version of comity is more discretionary and more overtly policy laden, but, like Pauwelyn, his proposal is
actually more radical than it might appear at first glance. Shany avoids
being too controversial by limiting his scope to jurisdiction.84 Furthermore,
although tribunals might not be directly contemplating the substance of
other self-contained regimes, they might reach the same outcomes by
79. Id. at 24–28.
80. Petersmann, supra note 30, at 365.
81. José E. Alvarez, The New Dispute Settlers: (Half) Truths and Consequences, 38
TEX. INT’L L.J. 405, 417 (2003).
82. See Judge Gilbert Guillaume, Pres. of the ICJ, The Proliferation of International
Judicial Bodies: The Outlook for the International Legal Order, Speech to the 6th
Comm. of the Gen. Assembly of the U.N. (Oct. 27, 2000), available at http://www.icjcij.org/presscom/index.php?p1=6&p2=1&pr=85&search=%22nagymaros%22.
83. See, e.g., Alvarez, supra note 81, at 418 (“The possibility of political backlash is
one reason that judges, and not merely international ones, are reluctant to admit that they
are engaging in judicial lawmaking even though this is precisely what they are doing.”).
84. See SHANY, supra note 11, at 269–70.
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simply sending cases away to competing regimes in a less regulated, discretionary atmosphere.
C. The View of the International Law Commission
The work of the ILC on the subject of fragmentation also lends some
insight to this discussion of comity as a solution to the perceived problems
with fragmentation. In the preliminary report on the matter, Martti
Koskenniemi states: “[t]here is no single legislative will behind international law. Treaties and custom come about as a result of conflicting motives
and objectives—they are ‘bargains’ and ‘package-deals’ and often result
from spontaneous reactions to events in the environment.”85 Nonetheless,
he concludes, “International law is a legal system . . . . There are meaningful relationships between [norms] . . . [and i]t is a generally accepted
principle that when several norms bear on a single issue they should, to
the extent possible, be interpreted so as to give rise to a single set of
compatible obligations.”86
However, Koskenniemi argues elsewhere that any attempt to provide
for a coherent international law system is largely a struggle of competing
international law perspectives seeking to gain dominance over international law as a whole.87 In light of this, it must be emphasized that the
ILC’s use of the word “system” means only “that the various decisions,
rules and principles of which the law consists do not appear not randomly related to each other . . . [and that] there is seldom disagreement that it
is one of the tasks of legal reasoning to establish [relationships between
them].”88
Other authors also acknowledge this problem of competing legal perspectives, but simply argue for the particular values that their preferred
regime offers.89 The ILC itself recognizes this concern to some degree,
mainly by questioning whether coherence in the international legal system is necessary for its own sake. While the ILC sees value in predicta85. ILC, Apr. 13 Rep., supra note 12, ¶ 34.
86. ILC, July 18 Rep., supra note 12, ¶ 14.
87. Martti Koskenniemi & Päivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 LEIDEN J. INT’L L. 553, 562 (2002).
88. ILC, Apr. 13 Rep., supra note 12, ¶ 33.
89. See Jan H. Dalhuisen, Legal Orders and Their Manifestations: The Operation of
the International Commercial and Financial Legal Order and Its Lex Mercatoria, 24
BERKELEY J. INT’L L. 129, 170–73 (2006) (arguing that it is important that “recognition
standards [themselves be] of a higher, more universal nature to be truly meaningful, and
not to reduce the recognition process merely to the will or sufferance of states,” but then
admitting that “[n]aturally, it is only to be expected that in the recognition process there
may be a preference for legal orders that recognize similar values, notions, and ideas as
those prevailing in the recognizing legal order”).
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bility, legal security, and equality, it does admit, “Coherence is . . . a
formal and abstract virtue. For a legal system that is regarded in some
respects as unjust or unworkable, no added value is brought by the fact of
its being coherently so.”90
One of the important insights in the ILC’s work is its interpretation of
conflict, which distinguishes between “conflicts within a regime” and
“conflicts across regimes.”91 The Vienna Convention sees conflicts as
subject-matter issues,92 but the ILC disagrees with this approach. For the
ILC, conflict cannot merely be a matter of classifying subject matter,
since no accepted classification scheme exists.93 The ILC favors Pauwelyn’s broad definition of conflict, which encompasses frustration of
purpose, over the narrow definition of two norms demanding incompatible results.94 In addition, the ILC supports Pauwelyn’s perspective that
“[w]hile the [DSU] limits the jurisdiction to claims which arise under the
WTO covered agreements only, there is no explicit provision identifying
the scope of applicable law.”95
Significantly, the ILC concludes that fragmentation is not a threat to
the international system, because whether conflicts reflect fragmentation
or diversity “lie[s] in the eye of the beholder.”96 Any complications that
ensue are not “legal-technical ‘mistakes,’” but rather, a natural consequence of the way the legal order works in a pluralistic system that
accommodates a variety of values.97 Admittedly, the ILC’s work only
discusses substantive conflicts, not the institutional conflicts that fragmentation also poses.98 As a result, the ILC looks to the Vienna Convention, other rules of general international law such as lex specialis, lex
posterior, and jus cogens, and the notion that international obligations
may develop to resolve conflicts.99 These techniques position various
legal values against one another using a language that all lawyers can
agree on and understand, thereby bringing legal closure to disputes. Perhaps such closure is what V.S. Mani contemplated when he wrote that
international adjudication “endeavors to resolve the dispute—or at least
90.
91.
92.
30).
93.
94.
95.
96.
97.
98.
99.
ILC, Apr. 13 Rep., supra note 12, ¶ 491.
See id. app. § 2.
See id. ¶ 22 (citing Vienna Convention on the Law of Treaties, supra note 68, art.
See id. ¶ 22.
See id. ¶¶ 24–25 (citing PAUWELYN, CONFLICT, supra note 10).
Id. ¶ 45.
Id. ¶ 20.
See id. ¶ 16.
See id. ¶ 489.
See id. ¶ 18.
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disposes it off from the juridical plane,”100 or what Sir Robert Jennings
meant when he distinguished between a dispute generally and the legal
or justiciable aspects of the dispute.101 Thus, whether we call the dynamics of the international legal system “fragmentation” or “diversity” does
not mean that lawyers cannot talk to each other and reach closure on the
legal aspects of a dispute.
The ILC’s work primarily focuses, like that of Pauwelyn, on existing
rules to resolve conflicts. However, where Pauwelyn might propose a
supposedly mechanical technique for definitively establishing superior
norms without regard for the morality of the norms (although conveniently human rights norms do triumph), the ILC finds that the nature of
the dispute resolution process in the international legal system is not so
apolitical102 and that the perspective of each regime must be to regard its
own norms as lex specialis.103 While Pauwelyn might argue that there
could be solutions to conflicts that a tribunal may discover, the ILC
might argue that a solution does not exist prior to the dispute, but, rather,
is formed through the process of assessing differing values and seeking
closure.104 In any event, neither party generally finds conflicts to be a
threat to a system of international law perceived as integrated.
100. V.S. MANI, INTERNATIONAL ADJUDICATION: PROCEDURAL ASPECTS 1 (Martinus
Nijhoff Publishers 1980).
101. See Sir Robert Jennings, Reflections on the Term ‘Dispute,’ in ESSAYS IN HONOUR
OF WANG TIEYA 401, 402–03 (Ronald St. John Macdonald, ed., 1994).
102. See ILC, Apr. 13 Rep., supra note 12, ¶ 35 (“Legal interpretation, and thus legal
reasoning, builds systemic relationships between rules and principles by envisaging them
as parts of some human effort or purpose. . . . [S]ystemic thinking penetrates all legal
reasoning . . . [and] may also be rationalized in terms of a political obligation on lawappliers to make their decisions cohere with the preferences and expectations of the
community whose law they administer.”). See also David Kennedy, The Nuclear Weapons Case, in INTERNATIONAL LAW: THE INTERNATIONAL COURT OF JUSTICE AND
NUCLEAR WEAPONS 462, 466 (Laurence Boisson de Chazournes & Philippe Sands eds.,
1999) (finding an apparent contradiction in “judges who flaunt their fealty to positive law
and an apolitical judiciary while remaining proud of their [political] engagement with the
humanist issues of the day, of their national or cultural patriotism, even their participation
in internationalist advocacy institutions of one or another stripe”).
103. See ILC, Apr. 13 Rep., ¶ 410 (“Whether a rule’s speciality or generality should be
decisive, or whether priority should be given to the earlier or to the later rule depended on
such aspects as the will of the parties, the nature of the instruments and their object and
purpose as well as what would be a reasonable way to apply them with minimal disturbance to the operation of the legal system.”).
104. See id. ¶ 20.
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II. COMPETITION AS AN ALTERNATIVE TO COMITY
Competition is, of course, not the polar opposite of comity. Rather, it is
a trend that can pull in the opposite direction, but not necessarily so. We
might even consider competition as one kind of comity, that is, one kind
of relationship among legal actors. If the international legal system is
composed of independent legal actors, then fostering their independence
may support the system. With each of these actors operating independently and in competition with each other, the problems associated with
fragmentation can be effectively resolved.
Jan Dalhuisen has noted that
[i]n situations where the conflicting interests are such that there is
competition between the international commercial and financial order
and a state legal order, state courts in the countries most directly
concerned will be mindful of their state’s position, but even international arbitrators or state courts in other states may not be indifferent to
this competition, although the outcome may not be the same.105
John Dugard has observed that the ICJ was less frequently seized of
disputes after its decision in the early South West Africa case, which
emphasized more formalistic interpretive techniques, and then it successfully attracted disputants back to its facilities after shifting to a more
purposive analysis in the Namibia case.106
Pemmaraju Sreenivasa Rao has added:
Another stated reason for the formation of new tribunals is disenchantment with the decisions of the ICJ, but this explanation too is not a significant factor. After all, disenchantment with outcomes is not confined
to the ICJ or to judicial tribunals in general; it is a feature common to
most permanent institutional bodies.107
In addition, the ICJ apparently sought to accommodate the United
States and Canada in the Gulf of Maine case by constituting a special
105. Dalhuisen, supra note 89, at 170.
106. See generally 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) (thoroughly discussing the Namibia case and its impact on the ICJ’s future).
107. Pemmaraju Sreenivasa Rao, Multiple International Judicial Forums: A Reflection
of the Growing Strength of International Law or Its Fragmentation?, 25 MICH. J. INT’L L.
929, 945 n.59 (2004) (“The disenchantment of developing countries with the court on
account of its decisions in the South-West Africa cases (1962, 1966) and the Northern
Cameroons case (1963) were mentioned for the establishment of the International Tribunal for the Law of the Sea.”).
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chamber of specific judges, due to the threat of the parties leaving the
court for an ad hoc tribunal.108
This reality of competition should not be overstated, since parties are
not entirely free to choose any judicial or quasi-judicial forum for dispute
resolution. However, this does not diminish the pressures of competition
on tribunals of all stripes, and not just pressure from other judicial
bodies. It has even been observed that an institution such as the International Criminal Court (“ICC”) “will need to compete, in highly charged
political environments, to fill its docket.”109 The apparent reluctance of
the U.N. Security Council, Secretary General, and Member States to enforce the arrest warrants issued for certain indicted Sudanese individuals
could suggest that the ICC is losing political influence as international
actors seek alternate methods to resolve the dispute within the Sudan.110
In selecting a dispute resolution forum, there may be structural limitations (i.e., treaty language), a lack of personal or subject matter jurisdiction, or a lack of competence that limits the options for a particular
forum. Nonetheless, parties, as sovereign entities, may always seek to
resolve their differences through mediation, ad hoc arbitration, or one of
the many alternative methods, for example, simple negotiation.111 And,
States often prefer judicial tribunals to nonjudicial, including preferring
domestic processes to international.112 Accordingly, the existence of Al-
108. See PETER MALANCZUK, AKEHURST’S MODERN INTRODUCTION TO INTERNATIONAL
LAW 288 (7th rev. ed., Routledge 1997) (1970) (citing Case Concerning Delimititation of
the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), 1984 I.C.J. Rep. 246, 252
(Oct. 12)).
109. Alvarez, supra note 81, at 420–21 (“Political pressures may force that Court to
build bridges to, not supplant, the more ‘biased’ national venues for judging perpetrators
of mass atrocities that many ICC advocates disparage. . . . [T]he ICC . . . will continue to
depend . . . on the political will of states.”).
110. See The Secretary General, Report of the Secretary-General on the Sudan, U.N.
Doc. S/2008/267 (Apr. 22, 2008); The Secretary General, Report of the SecretaryGeneral on the Sudan, U.N. Doc. S/2008/64 (Jan. 31, 2008). These two documents report
on the “overall situation in the country,” progress in implementing the Comprehensive
Peace Agreement in the Sudan, and “the plans for disarmament, demobilization and reintegration,” but fail to mention the outstanding arrest warrants for former interior minister
Ahmad Harun or Janjaweed militia commander Ali Kushayb issued by the ICC. Id. See
also Prosecutor v. Harun & Kushayb, Case No. ICC-02/05-01/07, Warrant of Arrest
(Int’l. Crim. Ct., Apr. 27, 2007).
111. See, e.g., U.N. Charter, art. 33(1) (“The parties to any dispute, the continuance of
which is likely to endanger the maintenance of international peace and security, shall,
first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or arrangements, or other peaceful means
of their own choice.”).
112. See Alvarez, supra note 81, at 416–19.
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ternate Dispute Resolution (“ADR”) generally is enough to bring about
competition among tribunals.
In addition to negotiation and other ADR methods, the structure and
political nature of tribunals exerts competitive pressure. Observers have
noted that the WTO, the North American Free Trade Agreement, and the
ICJ are subject to intense political pressures such as the selection of favorable judges, bringing political cases to tribunals, and compliance with
judgments113: “[p]olitics does not stop once a court is established and
adjudication begins.”114 Thus, the pressures of competition can arise not
only from direct conflicts of norms and jurisdiction, but also from the
constitutive nature of tribunals and even the personal career objectives of
the individual judges concerned. It must be recognized and accepted that
various tribunals do compete with each other for legal authority, and that
any effort to constitutionalize the international system, or otherwise establish norms for resolving conflicts, has a political result: the favoring
of certain tribunals.
A. Anne-Marie Slaughter’s View
Anne-Marie Slaughter agrees that there is competition among courts,
but her perspective is friendly. She denies a constitutional coherence to
the international legal order,115 and presents instead a system of “fellow
professionals in an endeavor that transcends national borders.”116 For
Slaughter, competition is constructive: “[j]udges who are beginning to
think of one another as participants in the same dispute resolution system
are often less willing to defer to one another out of the comity of nations.
. . . The result, paradoxically, is more dialogue and less deference.”117
However, she posits that through this sort of competition, “a distinct doctrine of ‘judicial comity’ will emerge: a set of principles designed to
guide courts in giving deference.”118 It is somewhat unclear if her version
of comity is discretionary or more rule-based, since she elsewhere argues
in favor of “constrained independence” where tribunals are limited only
by “structural, political, and discursive mechanisms,”119 which she poses
113. See id.
114. Id. at 415.
115. Anne-Marie Slaughter, A Global Community of Courts, 44 HARV. INT’L L.J. 191
(2003).
116. Id. at 193. See also Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT’L
L. 1103 (2000).
117. Slaughter, supra note 115, at 194.
118. Id.
119. Laurence R. Helfer & Anne-Marie Slaughter, Why States Create International
Tribunals: A Response to Professors Posner and Yoo, 93 CALIF. L. REV. 899, 901 (2005).
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in opposition to the theory that “the only effective international tribunals
are ‘dependent’ [less ideological] tribunals.”120 Slaughter’s perspective
suggests that her vision of comity is quite different from Pauwelyn’s.
Slaughter presumes that through friendly competition, some kind of
international law of comity (or similar constitutionalizing solution to
address conflicts) will emerge. Slaughter’s theory assumes that conflicts
are destructive and that, at some point, international law may be able to
rid itself of conflicts. The reality is that conflicts are more likely to be a
permanent fixture, but may serve a constructive purpose in themselves.
B. Yves Dezalay and Bryant Garth’s View
Yves Dezalay and Bryant Garth extensively discuss tribunal competition in connection with ADR’s propensity to attract business121 and the
diffusion of law into new jurisdictions.122 They are particularly interested
in how certain laws compete with others to govern legal outcomes,123 and
the spread of American norms, which have competed with and pushed
aside European norms.124 In fact, the competition they see goes so far as
to offer competing definitions of arbitration/mediation.125 Dezalay and
Garth have also noted that the competitive atmosphere in international
law has intensified, transporting considerations of the market into the
law,126 and that in terms of maintaining legitimacy and social relevance,
this might be a healthy updating of the law and legal dispute resolution.127
Dezalay and Garth’s observations seem accurate. Like Slaughter, they
acknowledge the reality of competition and acknowledge that it has nor120. Id. (citing Eric A. Posner & John C. Yoo, Judicial Independence in International
Tribunals, 93 CALIF. L. REV. 1, 8, 27 (2005)).
121. See Yves Dezalay & Bryant Garth, Fussing About the Forum: Categories and
Definitions as Stakes in a Professional Competition, 21 L. & SOC. INQ. 285, 287 (1996).
122. YVES DEZALAY & BRYANT GARTH, THE INTERNATIONALIZATION OF PALACE
WARS: LAWYERS, ECONOMISTS, AND THE CONTEST TO TRANSFORM LATIN AMERICAN
STATES (2002).
123. See id.
124. Yves Dezalay & Bryant G. Garth, Merchants of Law as Moral Entrepreneurs:
Constructing International Justice out of the Competition for Transnational Business
Disputes, in YVES DEZALAY & BRYANT G. GARTH, DEALING IN VIRTUE: INTERNATIONAL
COMMERCIAL ARBITRATION AND THE CONSTRUCTION OF A TRANSNATIONAL LEGAL ORDER
33, 39 (1996) (“As is the case for the entire field of business law, the Anglo-American
model of the business enterprise and merchant competition is tending to substitute itself
for the Continental model of legal artisans and corporatist control over the profession.”).
125. See Dezalay & Garth, supra note 121, at 292.
126. Id. See also Mauricio García-Villegas, Comparative Sociology of the Law, 31 L.
& SOC. INQUIRY 343 (2006).
127. See Dezalay & Garth, supra note 121, at 308–10.
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mative effects. Also like Slaughter, their observations are stated as fact
(though not without a hint of sadness for the passing of the old order) and
are emblematic of the new normative system supplanting the old. ADR
has been, as a field, historically dominated by Europeans, and it is now
becoming increasingly dominated by Americans. As such, Americans
will bring their own norms with them, pushing out the older, European
ones. Competition continuously produces newer, and possibly more relevant and fair, norms.
III. THE DRAWBACKS AND BENEFITS OF COMPETITION
A. Drawbacks of Competition
Competition among tribunals has led some to criticize tribunals or individual judges for making themselves attractive as decision makers,128
and highlight the drawbacks posed to the international legal system. Forum shopping is almost always identified as one of the more serious
threats, criticized for providing parties opportunities to select a tribunal
based on “access to the court, the procedure followed, the court’s
composition, . . . its power to make certain types of order[,] . . . [or] the
case-law . . . [that] happens to be more favourable to certain doctrines,
concepts[,] or interests.”129 More specifically, “[t]he particular procedures involved may . . . influence the application of substantive domestic
or foreign law and the outcome of disputes.”130 Also cited as drawbacks
are parallel litigation (often linked to litigation costs),131 the development
of a more litigious international environment,132 and a “risk of conflicting
judgments,”133 especially by courts with differing expertise and competence.134 Even more grave, the fragmentation of the law could accelerate
128. See Dezalay & Garth, supra note 124; Guillaume, supra note 82.
129. Guillaume, supra note 82, ¶ 13.
130. Petersmann, supra note 30, at 282.
131. Id. at 358 (“As the very broad scope of WTO law overlaps with numerous other
international and regional agreements, cooperation among international and national
courts becomes ever more important for maintaining the rule of law and reducing transaction costs, particularly in international relations among producers, investors, traders, and
consumers.”).
132. See SHANY, supra note 11, at 77–78.
133. Guillaume, supra note 82, ¶ 15 (“Systems of national law have for long had to
deal with [the problems associated with contradictory decisions]. They have solved them
by two methods: on the one hand, the development of a clear hierarchy among courts, on
the other, the formulation of rules on litispendency and res judicata.”).
134. Id. ¶¶ 16–17, 23.
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and increase destabilizing forces, threatening the international rule of
law135 and thereby endangering legal certainty itself.136
B. Benefits of Competition
These criticisms, leaning on a theory of a coherent international legal
system, presuppose that competition has only drawbacks: they do not
give due regard to potential benefits. What is problematic about a party
forum shopping, especially a sovereign State that has constructed the
very tribunal it now wishes to seize, even if it affects the kind of justice
reached? As Ernst-Ulrich Petersmann observes, “Forum shopping and
multiple litigations have become frequent in the legally and institutionally fragmented international law of human rights.”137 Petersmann continues by noting that
[w]hereas forum shopping in private international commercial law may
seriously inconvenience private parties attacked against their will in
distant fora applying foreign law, respondent parties in intergovernmental litigation usually have the resources to defend themselves in
international courts whose jurisdiction they have voluntarily accepted.138
In fact, we might argue that forum shopping is, in essence, what States
have always done when they have created new arbitral tribunals or
claims commissions for disputes. Not content with the decisions or perhaps even the kind of justice they might receive at one tribunal, States
create others, ones they perceive to be more fair, often referring to them
as possessing “better expertise” or as being “more specialized.”139 It cannot be forgotten that in international law, as opposed to domestic legal
systems, a tribunal only has jurisdiction by state consent.140 If forum
shopping is considered a problem, then the solution would be to prohibit
135. Id. ¶ 27.
136. See ILC, Apr. 13 Rep., supra note 12, ¶ 52.
137. Petersmann, supra note 30, at 283.
138. Id. at 360.
139. See, e.g., Hafner, supra note 1, at 861; Firew Kebede Tiba, What Caused the Multiplicity of International Courts and Tribunals?, 10 GONZ. J. INT’L. L. 202 (2006). See
also Press Release, Secretary-General Hopes More and More Parties Will Make Use of
International Tribunal for Law of the Sea, U.N. Doc. SG/SM/7477/ SEA/1684 (July 3,
2000).
140. See CHITTHARANJAN F. AMERASINGHE, JURISDICTION OF INTERNATIONAL TRIBUNALS
69 (2003) (“If agreement or consent is permitted to be the basis of jurisdiction of a [domestic] tribunal, such as an arbitral tribunal, related to the legal system, it is because it is
expressly and exceptionally permitted to be so by the law of the land. In any case such a
tribunal is ultimately controlled in one way or another by a national tribunal whose jurisdiction is not based on consent of the parties to the dispute but on the legitimate law of
the land.”).
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States from creating any new tribunals, perhaps even ones on a bilateral
or regional basis. This is not only a conceptually difficult task, but also
practically impossible to accomplish.
As for multiple litigations, Pauwelyn interestingly comments:
[The burden of] adjudicating the same dispute before two different tribunals does not necessarily amount to wasteful duplication. In case
each of the two tribunals deals with clearly distinct matters—such as a
WTO or [South African Development Community] panel dealing with
trade-related claims and [International Tribunal for the Law of the Sea]
with matters related to the law of the sea or conservation—multiple
proceedings may actually be helpful as long as each tribunal stays within the limits of its jurisdiction and defers to the other tribunal when it
comes to deciding matters falling within that tribunal’s jurisdiction.141
Accordingly, even if the pressures on a party to defend multiple suits
were a valid concern, others have observed that it is already acceptable
for persons to be subjected to parallel or conflicting laws as an inherent
aspect of globalization.142
Competition among tribunals might lead to better decisions. A court
may not be required to follow another’s jurisprudence, but the risk of
another forum reaching a contrary result and potentially embarrassing the
tribunal might encourage a more careful weighing of issues. A tribunal
may not be seized of a similar dispute again, and thus may not have the
opportunity to refine its jurisprudence on a given issue; judges might also
lose opportunities for career-advancing positions if their decisions come
into disrepute. In addition, a State faced with truly conflicting decisions
from two or more tribunals, that is, decisions requiring an act that
breaches another obligation, must make a choice and violate one regime
in order to follow the other. It is doubtful that any tribunal would want to
be seen as imposing less important decisions that are less likely to be
followed, and therefore, a tribunal may tailor its judgments to avoid forcing a State to make such a decision.
In the recent Kadi and Yusuf cases before the Court of First Instance of
the European Communities (“Court of First Instance”), although no jus
cogens concerns were held to be at issue, the court suggested that some
form of conflict with the decisions of the U.N. Security Council might be
possible over jus cogens issues, and that it could not defer to the Security
Council in such a case.143 Since the issues did not rise to the level of jus
141. Pauwelyn, Going Global, supra note 10, at 295.
142. See Nicolaïdis & Tong, supra note 70.
143. Case T-315/01, Kadi v. E.U. Council, 2005 E.C.R.. II-3649; Case T-306/01, Yusuf & Al Barakaat Int’l Found. v. E.U. Council, 2005 E.C.R. I-17.
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cogens, one might wonder why the Court of First Instance bothered to
devote analysis to a potential conflict with the Security Council, and
whether it was merely the court’s political assertion of the primacy of
human rights norms. While on appeal to the ECJ, the Advocate General
suggested that the ECJ could not defer to the Security Council’s command—a command that would demand a violation of human rights
law—and the ECJ subsequently agreed with that opinion.144 Human
rights campaigners might applaud the ECJ for remaining within its competence and not giving decisive weight to Security Council decisions, but
they might also decry the WTO for failing to step outside its competence
to consider human rights obligations. Forcing a State to choose between
honoring its obligations to the European Communities or to the Security
Council may lead both the ECJ and the Security Council to reach more
considered judgments in the future.
The improvement of tribunals through competition need not be so
confrontational. For example, some observers have noted that a kind of
comity through competition, perhaps just what Slaughter hopes for, has
developed between the ECJ and European Court of Human Rights
(“ECHR”), which “has markedly increased the quality of Luxembourg’s
jurisprudence, in that the latter cites and examines Strasbourg case-law
explicitly, rather than making elliptical assertions of fundamental rights
compliance.”145 Furthermore, the methods of analysis used by one
tribunal might embolden another to improve its approach, particularly if
those two tribunals compete with one another. It has been observed that
the WTO Dispute Settlement Body applies more aggressive and “stricter
standards of judicial review compared to the more deferential ‘margin of
appreciation’ doctrine applied by human rights courts [and that
144. For the Advocate General’s opinions, see Case C-402/05 P, Kadi v. E.U. Council,
et al., 2008 E.C.R. I-39; Case C-415/05 P, Al Barakaat Int’l Found. v. Council of the
E.U., et al., 2008 E.C.R. I-11. Shortly before publication of this Article, the ECJ issued
its opinion in the joined cases and indeed agreed with the Advocate General’s opinion
that the municipal effects of the Security Council’s resolution must comply with EU human rights standards. Joined Cases C-402/05 P and C-415/05 P, Kadi & Al Barakaat Int’l
Found. v. Council of the E.U., et al., ¶¶ 285–330 (Sept. 3, 2008), available at http://eurlex.
europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0402:EN:HTML. The ECJ’s
reference to the case law of the ECHR should be noted. Id.
145. Cathryn Costello, The Bosphorus Ruling of the European Court of Human Rights,
6 HUM. RTS. L. REV. 87, 129 (2006). It is to be noted that the ECJ sits in Luxembourg and
the ECHR sits in Strasbourg. The Court of Justice of the European Communities,
http://curia.europa.edu/ (last visited Nov. 2, 2008); European Court of Human Rights,
http://www.echr.coe.int/echr/index.htm (last visited Nov. 2, 2008).
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c]ompeting jurisdictions among courts . . . may contribute to improving
the quality and overall consistency of judicial reasoning.”146
Indeed, Upendra Baxi has written about the failure of arbitration panels
to consider human rights issues in reaching decisions,147 but this criticism
could be an argument in favor of more competition among tribunals. The
argument would proceed as follows: if a matter were settled by an arbitration panel that ignored human rights issues, that settlement should not
preclude another competing court from pronouncing a judgment on the
human rights aspects of the same matter. This lack of preclusion might
discourage parties from excluding human rights matters from the arbitration panel’s competence, since those matters might be dealt with by
another court in the future anyway. Thus, the decision itself would consider the entirety of the legal issues at stake and might present a better
chance of compliance.
Competition might also make for better courts in and of themselves.
Increased comity, as a solution, may sacrifice the benefits of selfcontained regimes to realize a kind of unobtainable desired coherence in
international law. However, courts do a better job of improvement when
they themselves are the agents of change. Many have noted that “most
international judicial bodies operate in ‘splendid isolation,’ . . . with
little, if any, regard for the jurisprudence of other international tribunals.”148 Judge Guillaume has observed, though, that “[e]very judicial
body tends—whether or not consciously—to assess its value by reference to the frequency with which it is seised.”149 David Kennedy has also
remarked that “the Court is one cultural and political institution among
others, crafting its decision to enhance its legitimacy and pull towards
compliance.”150 Accordingly, losing work to competing tribunals might
suggest to a tribunal that it should improve. Although strictly writing
about international commercial arbitration, Yves Dezalay and Bryant
Garth’s observation has relevance here:
Competition among key actors and groups . . . serves to construct legal
legitimacy[;] . . . the competitive battles that take place within it are
146. Petersmann, supra note 30, at 366 (citing MATTHIAS OESCH, STANDARDS OF
REVIEW IN WTO DISPUTE RESOLUTION (2003) (exploring the alternate standards of review
in WTO dispute resolutions)).
147. See Baxi, supra note 18, at 198–99.
148. Petersmann, supra note 30, at 283.
149. See Guillaume, supra note 82, ¶ 14.
150. Kennedy, supra note 102, at 464. See also id. at 466 (“And the sophisticated
commentators were quick to see the wisdom of the Court’s manoeuvre—for the Court
also manoeuvres, worries about its legitimacy, its allies and enemies in the game of mutual political regard.”).
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fought in symbolic terms among moral entrepreneurs. Battles fought
. . . build careers and markets for those who are successful in this competition, and they build the legitimacy and credibility of international
legal practices and international institutions.151
In support of this observation, Dezalay and Garth cite as an example
the waning of the dispute market presence that the International Chamber
of Commerce once offered to new arbitral institutions seeking to attract
disputants as clients.152 It has also been mentioned that the continuing
Doha reassessment by the Member States—that is, their reassessment of
the effectiveness of the WTO DSU—is likely to strengthen the tribunal.153
Turning to the diversity of tribunals, this diversity permits parties to
select the tribunal most likely to produce a certain outcome because of
the application of certain norms. This diversity is also beneficial in that it
permits parties to select a tribunal more insulated from undesirable politics or corruption.154 Accordingly, the fairness of tribunals is oft-cited as
a reason that some States prefer ADR.155
In a similar manner, another benefit of competition might be increased
transparency.156 Competition provides an incentive to produce decisions
that will be followed,157 and thus, gives courts an incentive to be perceived as fair. It is frequently noted that the ICJ decision in Nicaragua
may have been mostly to blame for the U.S. backlash against the court.158
151. Dezalay & Garth, supra note 124, at 33.
152. Id. at 44 (“This rapid expansion of the market of arbitration naturally awakened
new appetites. The ICC thus found itself more and more in competition with new arbitral
institutions aiming at such or such segment of this very diverse market.”).
153. See Petersmann, supra note 30.
154. See id. at 359 (“The rule-oriented WTO dispute settlement system clearly
mitigates power disparities in international relations and helps governments limit power
politics inside their countries[, for example], by limiting protectionist abuses of trade
policy discretion in favor of rent-seeking interest groups by requiring independent
judicial remedies inside countries like China that did not have such legal institutions prior
to WTO membership.”) (internal parentheses omitted).
155. See Betty Southard Murphy, ADR’s Impact on International Commerce, 48 DISP.
RESOL. J. 68 (1993).
156. Dezalay & Garth, supra note at 124, at 49 (“[I]t is partly a matter of introducing
competition in a market that was strongly cartelized. . . . But it is even more essential and
also more difficult to introduce a minimum of transparency in a community of specialists
characterized by personal relations so complex and so entangled that the interdict access
to this market by nonspecialists.”).
157. See Christopher R. Drahozal, Contracting Out of National Law, 80 NOTRE DAME
L. REV. 523, 524 (2005).
158. See Alvarez, supra note 81, at 417–18.
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Since state compliance is still dependent on state cooperation,159 States
may be more inclined to comply with judgments that are reached by
courts perceived as fair. Similarly, in the context of arbitration, Christopher Drahozal has argued that “[c]ompetition to be selected by parties
gives arbitrators a stronger incentive than public court judges to enforce
the provisions of the parties’ contract, including the parties’ contractual
choice of law.”160 Drahozal suggests that such reasoning might also be
applicable to courts.161 Accordingly, competition, transparency, and the
need for decisions that spur compliance with the law might motivate
tribunals to develop in a fair and noncorrupt way. International constitutionalization and the comity proposals of Pauwelyn and Shany may not
offer this benefit.
In fact, attempting to constitutionalize international courts might ignite
an even more combative fragmentation among tribunals. For example,
Kalypso Nicolaïdis and Joyce Tong argue that the Westphalian project
was essentially one aimed at destroying hierarchies and establishing
horizontal equality.162 Indeed, managing legal tensions with conflict rules
that require comity might place certain tribunals or their norms in a more
vertical position; this postion might actually increase intertribunal hostility,163 and any friendliness that Slaughter sees among horizontal tribunals
might be lost. States exercising their sovereign prerogatives might gravitate to more ad hoc, bilateral tribunals that apply alternative equitable
solutions rather than solutions drawn from the strict corpus of international law, all of which will generate even more conflicting international
norms. Failure to embrace decentralized norm building might exacerbate
the fragmentation of international law, which frustrates advocates of a
constitutionalized, international legal system.
In addition to better tribunals and better decisions, increased competition could make for better justice. For example, if a particular tribunal
becomes more popular, is this not an endorsement by the parties that they
regard the court as achieving justice? Judge Guillaume finds the increased competition among courts as a risk that “[could lead c]ertain
courts . . . to tailor their decisions so as to encourage a growth in their
caseload, to the detriment of a more objective approach to justice. Such a
159. See id.
160. Drahozal, supra note 157, at 524; Christopher R. Drahozal, Commercial Norms,
Commercial Codes, and International Commercial Arbitration, 33 VAND. J. TRANSNAT’L
L. 79, 106–07 (2000).
161. See, e.g., Christopher R. Drahozal, Judicial Incentives and the Appeals Process,
51 SMU L. REV. 469 (1998).
162. Nicolaïdis & Tong, supra note 70, at 1371–72.
163. See id.
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development would be profoundly damaging to international justice.”164
Bruno Simma has also noted that “the exclusion or modification through
a ‘self-contained regime’ of ‘normal’ secondary rules [could lead] to a
‘softening’ of the legal consequences of wrongful acts.”165 But if competition may produce more carefully crafted decisions—decisions largely
perceived as fair and more accurately reflective of the law made by
States for States—then is this development not in pursuit of justice?
CONCLUSION
In short, the fears of fragmentation may be overstated. First, there are
forces opposing fragmentation such as interjudicial dialogue, common
legal traditions, and harmonization, as well the application of many of
the same rules of general international law.166 Second, any threat to legal
certainty posed by fragmentation does not appear particularly graver in
the modern era than any preceding time period. These kinds of conflicts
are simply part of the nature of the international legal system.167 That
being said, competition may, in fact, produce better norms. Drahozal has
stated that “[t]he more choices of national law available to parties, the
more likely they can find a national law that they prefer. Indeed, . . . contractual choice of law facilitates interjurisdictional competition, thereby
further enhancing the choices available to the parties.”168 Fragmenting
norms could provide opportunities for better norms, particularly since
differing legal traditions bring differing norms to adjudication, all of
which may have their relative strengths.169 In support of this, Nicolaïdis
and Tong cite to the competition between the United States and EU
countries to export their legal models, as well as the diversity in the legal
164. Guillaume, supra note 82, ¶ 14.
165. Simma, supra note 53, at 135.
166. See Burke-White, supra note 37, at 964, 974, 978. See also William W. BurkeWhite, Regionalization of International Criminal Law Enforcement: A Preliminary Exploration, 38 TEX. INT’L L.J. 729, 755–61 (2003).
167. ILC, Apr. 13 Rep., supra note 12, ¶ 492 (“One principal conclusion of this report
has been that the emergence of special treaty-regimes (which should not be called ‘selfcontained’) has not seriously undermined legal security, predictability or the equality of
legal subjects.”)
168. Drahozal, supra note 157, at 548–49.
169. See Trevor C. Hartley, The European Union and the Systematic Dismantling of
the Common Law of Conflict of Laws, 54 INT’L & COMP. L.Q. 813, 814 (2005); Michaels,
supra note 25, at 1008 (“American law relies on broad standards of ‘fairness’ and ‘reasonableness’ that are applied in each individual case. This enables the judge to focus on
achieving justice in individual cases even if it hampers predictability for the parties. European law, by contrast, uses hard and fast rules that are easier to apply and therefore
more predictable but may lead to unjust results in individual cases.”).
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models in Europe, which instills a normative power in these models.170
This continual updating of law and legal dispute resolution is healthy for
the law to maintain legitimacy while keeping up with social change.171
How popular courts weigh the need for equality, the right to a hearing,
and so on might suggest a balance among principles that is the most just
approach. Other tribunals may look to the decisions of more popular fora
as examples of justice, and reform themselves and their image appropriately.
Changes in the substance of the law brought about by conflicts of
norms and jurisdiction can be beneficial. Some academics have written
about the evolution of certain rules due to competition for business, such
as the role of party autonomy.172 Others have discussed the criticism
made in regards to tribunals’ applications of comity rules designed to
resolve conflicts.173 In addition, according to Petersmann, “The ruleoriented WTO dispute settlement system [has been cited as mitigating]
power disparities in international relations.”174
Thus, increased competition may increase the diversity of legal norms
and the legitimacy of the norms applied. As William Burke-White has
articulated, the interaction of fragmenting and antifragmenting trends
produces a pluralist legal order, which is more open to a variety of alternative norms.175 The attractiveness of this theory is that there is an international legal system that is legitimate and effective because it strikes a
balance between diversity and universality.176 This diversity of legal
norms “can be a source of normative power.”177 As the ILC has
observed, “Even as international law’s diversification may threaten its
coherence, it does this by increasing its responsiveness to the regulatory
context.”178
Any objection to the beneficial role of fragmentation is based on one’s
conception of justice and whether justice can be a democratic and com-
170. Nicolaïdis & Tong, supra note 70, at 1374–75.
171. See Dezalay & Garth, supra note 121, at 310.
172. See Christopher R. Drahozal, New Experiences of International Arbitration in the
United States, 54 AM. J. COMP. L. 233 (2006).
173. See Westbrook, supra note 8, at 567.
174. See Petersmann, supra note 30, at 359.
175. Burke-White, supra note 37, at 978.
176. See id.
177. Nicolaïdis & Tong, supra note 70, at 1374 (noting the success of the EU political
and legal model around the world, based partly on its underlying diversity in contrast to
the American model, which is largely homogenous).
178. ILC, Apr. 13, Rep., supra note 12, ¶ 492.
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petitive preference. If the South West Africa cases179 at first lost work for,
and then later brought work back to, the ICJ, then the latter decisions in
this series can be regarded in one of two ways: merely a play
for prestige, or a constructive acknowledgement that the international
community thought that its prior decisions were wrong and did not do
justice. With the deliberate adoption of the more purposive interpretation
method described by Dugard,180 the ICJ may be seen as reforming itself
in order to better execute justice, notwithstanding the critical remarks of
South Africa’s ad hoc judge in the final South West Africa case regarding
the justice achieved.181 Prior ICJ decisions had led some developing
countries to view the court as a failure, and prefer the establishment of
new dispute settlement tribunals, such as the International Tribunal for
the Law of the Sea.182 Perhaps the recent increase in business for the ICJ
shows that countries now regard the court as just, striking a balance
between, on the one hand, the interests of States in retaining the role of
sovereign consent in international law and, on the other hand, the international community’s need to constrain States’ freedom of action.
Of course, the opposite can be easily argued: justice is not popular.
However, if international tribunals are created by States in order to do
justice among them, then being recognized as the “most attractive” forum is evidence that a particular tribunal may have a better appreciation
for justice. Petersmann has argued that “national and international courts
do not yet constitute a coherent legal and judicial system,”183 the word
“coherent” being used in the sense of a single, legitimate, normproducing system without internal inconsistencies. However, is this not a
form of coherence if a system allows the best court, norm, or justice to
survive? Fragmentation may not be a problem to be solved, but rather, a
sign that the international legal system needs to consider a variety of legal norms.184 As society’s definition of justice evolves, so do many
tribunals, not necessarily towards a top-down, constitutionalized, hierarchical system overseeing a coherent, unitary international legal order, or
179. See South West Africa Cases (Ethiop. v. S. Afr. & Liberia v. S. Afr.), 2d Phase,
1966 I.C.J. Rep. 6 (July 18), available at http://www.icj-cij.org/docket/files/46/4931.pdf;
South West Africa Cases (Ethiop. v. S. Afr & Liberia v. S. Afr.), Prelim. Objs., 1962
I.C.J. Rep. 319 (Dec. 21), available at http://www.icj-cij.org/docket/files/46/4887.pdf.
180. See Dugard, supra note 106, at 33–38.
181. See South West Africa Cases (2d Phase), 1966 I.C.J. Rep. 68 (separate opinion of
Judge Van Wyk, ad hoc), available at http://www.icj-cij.org/docket/files/46/4939.pdf.
182. See, e.g., Rao, supra note 107, at 945 n.59.
183. Petersmann, supra note 30, at 360.
184. See ILC, Apr. 13, Rep., supra note 12, ¶ 487 (“Even as the law may not go much
further than require a willingness to listen to others, take [others’] points of view into
account and . . . find a reasoned resolution at the end.”).
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for that matter towards a network of friendly, lending, and borrowing
professionals. Instead, they may affirm a bottom-up, vigorous system
where different legal actors compete for the best realization of justice.
WHEN IN ROME:
AIDING AND ABETTING IN
WANG XIAONING V. YAHOO
INTRODUCTION
I
n April 2007, Wang Xiaoning, a Chinese dissident, filed suit against
Yahoo! Inc. and certain subsidiaries (“Yahoo”) under the Alien Tort
Claims Act (“ATCA”).1 The suit alleged that Yahoo aided and abetted
the Chinese government in the torture, cruel and degrading treatment,
arbitrary arrest, and prolonged detention of Wang.2 Through a Yahoo
group that permitted him to post anonymously, Wang posted several articles online criticizing the Chinese government and calling for democratic reform in China.3 After Yahoo provided information to the Chinese
government on the Yahoo account used to publish the articles, the government was able to identify Wang as the author of the postings.4 Wang
was subsequently sentenced to ten years in prison for inciting subversion,
and he claims that he has since been repeatedly beaten and tortured in the
labor camp where he is currently held.5 Wang sued Yahoo for damages
and an injunction to prevent Yahoo from providing identifying information in the future on accounts being used to call for democratic reform in
China.6 When questioned, spokespersons for Yahoo maintained that as a
condition of doing business, it is bound to comply with the local laws
where it operates.7 In November 2007, however, Yahoo settled with
Wang for an undisclosed amount.8
This Note examines the ATCA claims filed against Yahoo and evaluates Wang’s likelihood of success had the case proceeded to trial, in
light of several standards the federal courts have articulated to determine
aiding and abetting liability for multinational corporations. In particular,
federal courts have taken notice of the international criminal aiding and
1. “The 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.” Alien Tort Claims Act, 28 U.S.C. § 1350 (2006).
2. Second Amended Complaint para. 10, Wang Xiaoning v. Yahoo! Inc., No. C0702151 CW (N.D. Cal. July 30, 2007) (Justia), http://casedocs.justia.com/california/candce/
4:2007cv02151/191339/51/0.pdf [hereinafter Complaint].
3. Miguel Helft, Chinese Political Prisoner Sues in U.S. Court, Saying Yahoo
Helped Identify Dissidents, N.Y. TIMES, Apr. 19, 2007, at C4.
4. Ariana Eunjung Cha & Sam Diaz, Advocates Sue Yahoo in Chinese Torture Case,
WASH. POST, Apr. 19, 2007, at D1.
5. Eunjung Cha & Diaz, supra note 4.
6. Helft, supra note 3.
7. Id.
8. Catherine Rampell, Yahoo Settles with Chinese Families, WASH. POST, Nov. 14,
2007, at D4.
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abetting standard articulated by international military tribunals during the
war crimes trials at Nuremberg.9 These trials may provide the courts with
guidance on how to analyze ATCA aiding and abetting claims.10
Part I of this Note provides background on Yahoo’s involvement in
China, the U.S. government’s response to the involvement of Internet
companies in China, and Wang Xiaoning’s suit against Yahoo. Part II
briefly outlines the development of ATCA claims in general and against
multinational corporations in particular, with a focus on civil aiding and
abetting claims. Part III discusses the aiding and abetting criminal liability standard that was prominently established during the trials at Nuremberg and further developed by the tribunals in the former Yugoslavia and
Rwanda. Part IV evaluates Wang’s likelihood of success had the case
gone to trial. Part V concludes that a court would have found Yahoo liable for aiding and abetting if the court applied the Nuremberg standard
for criminal liability for aiding and abetting as it has developed over the
last twenty years, and Wang could have proven that Yahoo turned over
the identifying details on Wang’s account knowing the government was
looking to prosecute a dissident.
I. BACKGROUND
A. Yahoo
It is not difficult to understand why multinational Internet corporations
are anxious to establish business operations in China. The China Internet
Network Information Center estimates that there are 253 million Internet
users in China, recently surpassing the United States.11 Several major
corporations involved in providing services related to the Internet are
already doing business in China, among them Google, Cisco, Microsoft,
and Yahoo.12 But the Chinese government imposes a number of condi9. See, e.g., Khulumani v. Barclay Nat’l Bank Ltd, 504 F.3d 254, 271 (2d Cir. 2007)
(per curium), aff’d due to lack of a quorum sub. nom, Am. Isuzu Motors, Inc. v. Ntsebeza,
128 S. Ct. 2424 (2008) (recognizing that the principles established by the International Military Tribunal are significant due to their “broad acceptance” and because they “were
viewed as reflecting and crystallizing preexisting customary international law”).
10. See, e.g., Doe I v. Unocal, 395 F.3d 932, 950 (9th Cir. 2002), reh’g en banc
granted, 395 F.3d 978 (9th Cir. 2003), appeal dismissed, 403 F.3d 708 (9th Cir. 2005)
(finding the ICTY and the ICTR “especially helpful” in considering the standard to use
for civil aiding and abetting liability).
11. David Barboza, China Surpasses U.S. in Number of Internet Users, N.Y. TIMES,
July 28, 2008, at C3.
12. Nicholas D. Kristof, Op-Ed., China’s Cyberdissidents and the Yahoos at Yahoo,
N.Y. TIMES, Feb. 19, 2006, at D13. Unlike Yahoo and Microsoft, which both provide
email and blogging accounts, Google decided that it would only offer a search engine to
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WHEN IN ROME
153
tions on these companies before it will allow them to establish business
in the country. By agreement, corporations are required to censor content
that “damages the honor or interests of the state” or “disturbs the public
order or destroys public stability.”13 The government, however, does not
provide a list of what must be censored and intentionally leaves the
wording of this agreement unclear so that the corporations themselves
are required to interpret what must be censored.14
In 1999, Yahoo was the first multinational Internet corporation to enter
the market in China when it established a Beijing office and started the
Chinese equivalent of its search engine.15 Yahoo voluntarily signed a
“self-discipline” pledge in 2002, promising to follow the vague censorship laws in China.16 The pledge requires its signatories to “refrain[]
from producing, posting, or disseminating pernicious information that
may jeopardize state security and disrupt social stability, contravene laws
and regulations and spread superstition and obscenity.”17 In a letter in
response to inquiries from Human Rights Watch, an international human
rights group, Yahoo stated, “The pledge involved all major Internet companies in China and was a reiteration of what was already the case—all
Internet companies in China are subject to Chinese law, including with
respect to filtering and information disclosure.”18 Human Rights Watch
noted that while this statement was accurate at the time Yahoo was asked
to sign, neither Microsoft nor Google has since signed the pledge.19
Chinese residents when it entered the market, precisely because it did not want to be put
in a position where it might have to censor its bloggers’ writings or turn over identifying
information to the Chinese police that could lead to their imprisonment. Google also notifies users when certain results have been omitted due to Chinese law, so that they are at
least made aware that the censorship has occurred. See Clive Thompson, Google’s China
Problem (and China’s Google Problem), N.Y. TIMES, Apr. 23, 2006, § 6 (Magazine), at
64.
13. Thompson, supra note 12.
14. Id.
15. Id.
16. HUM. RTS. WATCH, RACE TO THE BOTTOM: CORPORATE COMPLICITY IN CHINESE
INTERNET CENSORSHIP, Aug. 9, 2006, at 30, http://www.hrw.org/reports/2006/china0806/
china0806web.pdf [hereinafter RACE TO THE BOTTOM].
17. Internet Society of China, Public Pledge of Self-Regulation and Professional Ethics for China Internet Industry, http://www.isc.org.cn/20020417/ca102762.htm (last visited Oct. 5, 2008).
18. RACE TO THE BOTTOM, supra note 16, at 125.
19. Id. at 31.
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B. Response of the U.S. Government
Concern about the consequences of suppression of speech in China
roused both the U.S. Congress and the executive branch to gather information about the business of multinational Internet corporations with
operations in China and headquarters in the United States. In February
2006, the State Department announced the establishment of the Global
Internet Freedom Task Force.20 The purpose of the Task Force is to
“maximize freedom of expression and the free flow of information and
ideas, to minimize the success of repressive regimes in censoring and
silencing legitimate debate, and to promote access to information and
ideas over the Internet.”21
Congress has also held several hearings on the matter. On February 15,
2006, representatives of Google, Microsoft, Cisco, and Yahoo appeared
before the House Subcommittee on Africa, Global Human Rights and
International Operations.22 The House Subcommittee was particularly
concerned about the plight of journalist Shi Tao,23 who was imprisoned
for sending notice overseas that the Chinese government warned journalists against any coverage of the anniversary of the Tiananmen Square
massacre.24 Yahoo provided the Chinese government with information
showing that Shi had used his email account at his place of business to
20. Press Release, U.S. Dep’t of State, Secretary of State Establishes New Global
Internet Freedom Task Force (Feb. 14, 2006).
21. Fact Sheet, U.S. Dep’t of State, Global Internet Freedom Task Force (GIFT)
Strategy: A Blueprint for Action (Dec. 28, 2006), http://www.state.gov/g/drl/rls/78340.htm.
22. Tom Zeller Jr., Online Firms Facing Questions about Censoring Internet
Searches in China, N.Y. TIMES, Feb. 15, 2006, at C3.
23. In May 2007, Shi Tao joined Wang Xiaoning’s suit against Yahoo as a plaintiff.
Nate Anderson, Second Chinese Dissident Joins Lawsuit Against Yahoo, ARS TECHNICA,
May 30, 2007, http://arstechnica.com/news.ars/post/20070530-second-chinese-dissidentjoins-lawsuit-against-yahoo.html. While this Note does not review the specific facts surrounding his online advocacy for democratic reform and subsequent imprisonment, his
case is substantially similar to Wang Xiaoning’s, in that he was a journalist who criticized the Chinese government and was later imprisoned after Yahoo provided information tying him to an anonymous email sent overseas. For further details on the imprisonment of Shi Tao, see Complaint, supra note 2, paras. 52–68.
24. The Internet in China: A Tool for Freedom or Suppression?: Joint Hearing Before the Subcomm. on Africa, Global Human Rights and International Operations and the
Subcomm. on Asia and the Pacific of the H. Comm. on International Relations, 109th
Cong. 38 (2006) [hereinafter Hearing] (prepared statement of James R. Keith, Senior
Advisor for China and Mongolia, Bureau of East Asian and Pacific Affairs, U.S. Department of State).
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notify others of the warning.25 Representative Chris Smith, the Chairman
of the Subcommittee, began the hearing by referencing the Holocaust,
where multinational corporations offered technology to the Third Reich
that enabled human rights abuses.26 Representative Tom Lantos, himself
a Holocaust survivor, demanded to know whether the companies were
“ashamed” of their contributions to censorship and, in Yahoo’s case, to
the imprisonment of Chinese dissidents.27 The companies generally responded by noting that while they were “deeply concerned”28 by the
strictures in China, the country has become a “more open societ[y]” since
it has gained access to the Internet.29 Additionally, they emphasized that
China would become more tightly controlled if non-Chinese companies
were forced to leave.30 Finally, they pointed out that the censorship filters
do not always block all the content that the Chinese government does not
want its citizens to see.31
Following the House Subcommittee hearing, Representative Smith
introduced a bill called the Global Online Freedom Act of 2006, the pur25. James Heffernan, An American in Beijing: An Attorney’s Ethical Considerations
Abroad with a Client Doing Business with a Repressive Government, 19 GEO. J. LEGAL
ETHICS 721, 721 (2006).
26. Hearing, supra note 24, at 2 (statement of Rep. Christopher H. Smith, Chairman,
Subcomm. on Africa, Global Human Rights and International Operations).
27. Joe Nocera, Enough Shame to Go Around on China, N.Y. TIMES, Feb. 18, 2006,
at C1.
28. Hearing, supra note 24, at 60 (testimony of Jack Krumholtz, Managing Director
of Federal Government Affairs and Associate General Counsel, Microsoft Corp.).
29. Id. at 56 (testimony of Michael Callahan, Senior Vice President and General
Counsel, Yahoo! Inc.). Advocates for multinational Internet corporations are not the only
ones to argue that regardless of the efforts it makes to stifle dissent, the Chinese government will be unable to slow the forces of democratic change now that the Internet is readily available to its citizens. Even when it shuts down the blog of one prominent dissident, there are now so many citizens using the Web to post their writings that the Internet
in China has become a “censor’s nightmare.” Howard W. French, Despite Web Crackdown, Prevailing Winds are Free, N.Y. TIMES, Feb. 9, 2006, at A4. Of course, this argument ignores the consequences of imprisonment and torture for those individuals unfortunate enough to be identified and prosecuted by the government for voicing their dissent.
Also, the idea that China has become freer through the investment of foreign corporations
is not a given: “[b]ecause China is too lucrative a market to resist, American and European businessmen have ended up endorsing the party line through their silence—or
worse. They are not molding China; China is molding them.” Tina Rosenberg, Editorial,
Building the Great Firewall of China, with Foreign Help, N.Y. TIMES, Sept. 15, 2005, at
D11.
30. Hearing, supra note 24, at 78 (testimony of Mark Chandler, Vice President and
General Counsel, Cisco Systems, Inc.).
31. Id. at 63 (prepared statement of Jack Krumholtz, Managing Director of Federal
Government Affairs and Associate General Counsel, Microsoft Corporation).
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pose of which was to “promote freedom of expression on the Internet”
and “protect [U.S.] businesses from coercion to participate in repression
by authoritarian foreign governments.”32 The bill did not move beyond
the Subcommittee vote before the 109th Session of Congress ended,33
and Representative Smith reintroduced the bill as the Global Online
Freedom Act of 2007 in the 110th Session of Congress.34 In October
2007, the House’s Committee on Foreign Affairs recommended that the
entire House consider the bill,35 but the Energy and Commerce Committee must still consider the bill.36 The bill is unlikely to gain enough support to pass given the significance of China to U.S. trade.37
In August 2007, Representative Lantos, Chairman of the House Committee on Foreign Affairs, announced that he would conduct an investigation to find out whether Yahoo misled Congress when it testified before
Congress in February 2006.38 Yahoo had testified that it had no information about the reason for the investigation of journalist Shi Tao when it
was asked to provide identifying information on his Yahoo account.39
But the Dui Hua Foundation, which advocates for Chinese detainees in
the United States and Hong Kong, uncovered a document establishing
that the Chinese government provided Yahoo with a request for evidence
in a case against Shi for “illegally providing state secrets to foreign enti-
32. Global Online Freedom Act of 2006, H.R. 4780, 109th Cong. (2006).
33. Press Release, Representative Christopher H. Smith, House of Representatives,
Smith Reintroduces the Global Online Freedom Act (Jan. 8, 2007). In the press release,
Representative Smith stated, “American companies should not be working hand-in-glove
with dictators. By blocking access to information and providing secret police with the
technology to monitor dissidents, American IT companies are knowingly—and willingly—enabling the oppression of millions of people.” Id.
34. Global Online Freedom Act of 2007, H.R. 275, 110th Cong. (2007).
35. Press Release, Representative Christopher H. Smith, House of Representatives,
Global Online Freedom Act Passes Committee in Wake of Congressional Investigation of
Yahoo (Oct. 23, 2007).
36. Brett Murphy, US House Committee Approves Personal Online Data Protection
Bill, JURIST, Oct. 24, 2007, http://jurist.law.pitt.edu/paperchase/2007/10/us-house-committeeapproves-online.php.
37. “Congress could certainly pass a law forbidding technology companies from
doing business in China just as it once prohibited trade with South Africa, and still ban
commerce with countries like Cuba and Burma. But it won’t. Ever since the Nixon administration, the government has consistently believed that engaging with China was
better than not . . . .” Nocera, supra note 27.
38. Press Release, House Comm. on Foreign Affairs, Congressional Committee to
Investigate Disparity Between Documents and Hearing Testimony by Yahoo (Aug. 3,
2007).
39. Hearing, supra note 24, at 56 (testimony of Michael Callahan, Senior Vice President and General Counsel, Yahoo! Inc.).
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ties.”40 Yahoo’s Chief Executive Officer Jerry Yang and Senior Vice
President and General Counsel Michael Callahan were requested to testify at a hearing on November 6, 2007.41 At the hearing, Callahan admitted
that, while he was unaware of it at the time of his initial testimony, the
order for information about Shi Tao did contain a reference to an investigation for disclosure of “state secrets.”42 “State secrets” is a term commonly understood to refer to investigations of political dissidents.43
Meanwhile, multinational Internet companies continue to press the
U.S. government to pursue legislative and diplomatic solutions that
encourage freedom of expression on the Internet worldwide. At yet
another hearing before Congress, Michael Samway, the Vice President
and Deputy General Counsel of Yahoo, noted that Yahoo has requested
that the government use its “trade relationships, bilateral and multilateral
forums, and other diplomatic means” among repressive regimes to discourage censorship on the Internet and otherwise.44 But the Internet
40. Congressional Committee to Investigate Disparity Between Documents and Hearing Testimony by Yahoo, supra note 38.
41. Press Release, House Comm. on Foreign Affairs, Committee Asks Yahoo! Executives to Testify About False Information Given to Congress in China Human Rights
Case (Oct. 16, 2007).
42. Yahoo’s Provision of False Information to Congress: Hearing Before the Comm.
on Foreign Affairs, 110th Cong. 26 (2007) (prepared statement of Michael J. Callahan,
General Counsel, Yahoo! Inc.) [hereinafter Yahoo Hearing]. Wang Xiaoning and Shi Tao
settled their suit against Yahoo only one week after this Congressional hearing. Morton
Sklar, the executive director of World Organization for Human Rights USA and lawyer
for Wang and Shi in the lawsuit against Yahoo, stated, “The pressures by Congress on
[Yahoo chief executive officer] Jerry Yang were of tremendous importance to making
this settlement happen.” Rampell, supra note 8. For further description of the Shi Tao
case, see supra note 23.
43. Yahoo Hearing, supra note 42, at 2 (statement of Rep. Tom Lantos, Chairman,
House Comm. on Foreign Affairs).
44. Global Internet Freedom: Corporate Responsibility & the Rule of Law: Hearing
Before the Subcomm. on Human Rights & the Law, 110th Cong. (2008) (opening statement of Michael Samway, Vice President & Deputy General Counsel, Yahoo! Inc.).
Samway noted that Yahoo CEO Jerry Yang met with State Department officials and
wrote a letter to Secretary of State Condoleeza Rice, urging diplomatic efforts to encourage the release of Chinese political prisoners. Id. At the same hearing, Google Inc. Deputy General Counsel Nicole Wong laid out several suggestions to “promote online freedom
of expression.” Id. (testimony of Nicole Wong, Deputy General Counsel, Google Inc.).
Among other things, Google suggested that the U.S. government “renew diplomatic efforts to encourage [approximately thirty countries] to ratify the [International Covenant
on Civil and Political Rights]”; “[s]trengthen and enhance the State Department’s Global
Internet Freedom Taskforce”; “[s]trengthen individuals’ ability to file complaints under
the International Covenant”; and “[p]romote free expression as part of foreign aid.” Id.
For a historical view that the self-interest of corporations in the marketplace may pave the
way to the creation of enforceable human rights legal standards, see Ralph G. Steinhardt,
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companies have also begun to respond at least in part to the criticism that
has been directed towards them for doing business with the Chinese
government. In October 2008, companies, including Yahoo, Microsoft,
and Google, several human rights organizations, scholars, and socially
responsible investors reached an agreement on a voluntary code of conduct for use in countries like China to protect user privacy and encourage
freedom of expression.45
Due to its secrecy, it is difficult to get a true sense of the number of
Chinese citizens significantly affected by the Chinese government’s actions
in cases like Wang’s and Shi’s. The government shows no signs of abating its suppression of dissent. In fall 2007, it announced that it would
continue to attack vigorously what it called “false news reports, unauthorized publications and bogus journalists,” and it promised to punish journalists and media organizations that were “intentionally fabricat[ing]
news” and “tarnish[ing] the nation’s image.”46 Human Rights Watch reported that in August 2007, the government ordered all search sites in the
country, including the Chinese versions of the Google and Yahoo search
sites, to take down any “illegal and unhealthy content” within a week,
without providing substance on what this phrase might mean and without
providing the consequences of failure to comply.47
Soft Law, Hard Markets: Competitive Self-Interest and the Emergence of Human Rights
Responsibilities for Multinational Corporations, 33 BROOK. J. INT’L L. 933 (2008).
45. Miguel Helft & John Markoff, Big Tech Companies Back Global Plan to Shield
Online Speech, N.Y. TIMES, Oct. 28, 2008, at B8. According to the final draft of documents obtained by the Times, the companies promise to “avoid or minimize the impact of
government restrictions on freedom of expression.” Id.
46. Keith Bradsher, China Cracks Down on News Media as Party Congress Nears,
N.Y. TIMES, Aug. 16, 2007, at A3. This “crackdown” coincided with growing worldwide
concern about the quality controls around consumer products made in China as well as
the nearing of the Chinese Community Party Congress, when the new party leadership
was announced. See, e.g., David Barboza & Louise Story, Mattel Issues New Recall of
Toys Made in China, N.Y. TIMES, Aug. 14, 2007, at C2. The message from the government did not concern dissent journalism directly, but due to the Chinese government’s
increased focus on the image of the country around the world, journalists arguing for
democratic reform are likely to feel the trickle-down effects of the ever-tightening controls around what journalists may publish.
47. Press Release, Human Rights Watch, China: Media Freedom Attacks Continue
Despite Pledges (Sept. 7, 2007). And despite the government’s assurances to the contrary,
international media arriving in Beijing for the Olympics found that several websites were
censored by the country’s firewall. After organizers of the Olympics met with senior
members of the International Olympic Committee, some of the bans were lifted. Andrew
Jacobs, Restrictions on Net Access in China Seem Relaxed, N.Y. TIMES, Aug. 1, 2008, at
A7.
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C. Wang Xiaoning
According to his complaint, Wang was the editor of and occasional
contributor to two online journals that advocated for democratic reform
in China.48 In 2000 and 2001, Wang posted his writings to a Yahoo
Group, where users who subscribed could receive emails sent by other
members of the group.49 After administrators came across the forbidden
content in Wang’s writings, his ability to send new posts to the group
was revoked; however, Wang continued to send his journal entries anonymously to particular email addresses.50
In September 2002, Chinese police allegedly arbitrarily detained Wang
without informing him of the charges against him and seized evidence of
his writings, including his computer and his notes.51 A year later, the
Beijing Municipal First Intermediary People’s Court convicted Wang of
“‘incitement to subvert state power,’ advocating the establishment of an
alternative political party, and communicating with an overseas organization the Chinese government considers ‘hostile.’”52 The government sentenced him to ten years in prison.53 According to the complaint, the court
stated that it was able to connect Wang to his writings due to the essential information that Yahoo Hong Kong provided to the Chinese police.54
Specifically, Yahoo Hong Kong told the police that an email address
based in China had been used to set up the Yahoo Group, and that the
postings sent to the Yahoo Group were from an account in China that
was owned by Wang Xiaoning.55 The court also included some of
Wang’s statements from his Internet postings. In one posting, Wang
48. Complaint, supra note 2, para. 32.
49. Id. para. 33.
50. Id. paras. 34–35. The complaint does not identify whether the administrators who
revoked Wang’s posting privileges were members of the Chinese government or employees of Yahoo. Id.
51. Id. para. 37.
52. Id. para. 40.
53. Id. para. 41.
54. Id. para. 42. Yahoo would have probably contested this point. In his prepared
statement, Michael Callahan, General Counsel of Yahoo, emphatically denied that Yahoo
Hong Kong had provided any information to the Chinese police about Shi Tao, another
imprisoned Chinese dissident, and that Yahoo China alone would respond to a request
from a law enforcement agency. Hearing, supra note 24, at 59 (prepared statement of
Michael Callahan, Senior Vice President and General Counsel, Yahoo! Inc.). Also, Yahoo
has been anxious to clarify that in October 2005, Yahoo China merged with Alibaba.com
(a Chinese company), and Alibaba.com now owns the Yahoo China business. While
Yahoo holds one of the four board seats on Alibaba.com and is a “large equity investor,”
it does not maintain control over the day-to-day operations of Yahoo China. Id. at 58.
55. Complaint, supra note 2, para. 42.
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stated, “Without the multi-party system, free elections and separation of
powers, all types of political reform will come to nothing.” 56 In another,
he wrote, “We should never forget that China is still a totalitarian and
despotic country.”57 Wang appealed the judgment, but the Supreme
People’s Court rejected the application for appeal in December 2004 and
again in July 2006.58
Wang has been held at the Detention Center of Beijing State Security
Bureau as well as Beijing Prison No. 2.59 His complaint alleged that he
has been subject to severe beatings and psychological torture to provoke
him to confess to engaging in activities against the State,60 and that at
times he has been malnourished and denied regular exercise and sunlight
for weeks or months on end.61 He is allowed to see his wife for one halfhour every month, and prison administration monitors his written communications directed outside the prison.62
In April 2007, Wang Xiaoning filed suit against Yahoo! Inc. and Yahoo! Hong Kong, Ltd. under the ATCA, among other laws and treaties.63
The specific violations of the law of nations alleged include knowingly
aiding and abetting acts of torture64; cruel, inhuman, or degrading punishment or treatment65; and arbitrary arrest and prolonged detention.66
The lawyer for the plaintiffs, Morton Sklar, is the executive director of
World Organization for Human Rights USA.67 Had Wang’s suit not settled, it would have been considered a test case, because the Supreme
Court has not yet directly ruled on the applicability of the ATCA to multinational corporations for aiding and abetting violations of international
law.68
56. Id. para. 43.
57. Id.
58. Id. para. 44.
59. Id. paras. 39, 44.
60. Id. para. 39.
61. Id. para. 45.
62. Id.
63. The suit also alleged violations of the Torture Victim Protection Act; Convention
against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; International Covenant on Civil and Political Rights; Universal Declaration of Human Rights;
Charter of the United Nations; International Labor Organization Convention No. 29 Concerning Forced or Compulsory Labor; the Electronic Communications Privacy Act; and
certain statutes and common law of the state of California. See id. para. 69.
64. Id. para. 74.
65. Id. para. 81.
66. Id. para. 88.
67. Helft, supra note 3.
68. In a discussion on how to judge whether a norm is “sufficiently definite” to be
considered a violation of international law, Justice Souter, in the only Supreme Court
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II. CLAIMS UNDER THE ATCA
A. Introduction
The ATCA was enacted as part of the Judiciary Act of 1789.69 There is
intense disagreement over its original purpose and current appropriate
application, in part due to the scant record left by Congress when the statute was drafted.70 In Tel-Oren v. Libyan Arab Republic, Judge Bork contended that the drafters of the ATCA had in mind only the violations of
the law of nations existing at that time, including such torts as the violation of safe conduct, infringement of the rights of ambassadors, and piracy.71
Bork concluded that the judiciary should not legislate from the bench on
the meaning of the ATCA when Congressional intent is so unclear:
[We] have, at the moment, no evidence what the intention of Congress
was. When courts lack such evidence, to ‘construe’ is to legislate, to act
in the dark, and hence to do many things that, it is virtually certain,
Congress did not intend. Any correspondence between the will of Congress in 1789 and the decisions of the courts in 1984 can then be only
accidental. Section 1350 can probably be adequately understood only in
the context of the premises and assumptions of a legal culture that no
longer exists.72
Others argue that the ATCA should receive a broad interpretation. The
ATCA was drafted amidst Congressional concern that the U.S. government, still in its very early stages, had no national law with which to enforce the country’s obligations under international law, such as the obli-
opinion to directly address the ATCA, unfortunately provided little guidance on the applicability of the ATCA to private corporations: “A related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.”
Sosa v. Alvarez-Machain, 542 U.S. 692, 732 n.20 (2004). See infra note 99 and accompanying text.
69. Sosa, 542 U.S. at 712–13.
70. Id. at 718–19.
71. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 813–14 (D.C. Cir. 1984) (Bork,
J., concurring). See also JAMES BISER WHISKER, THE SUPREMACY OF THE STATE IN INTERNATIONAL LAW 128 (2003) (arguing that at the time it was enacted, the ATCA would
have only allowed “an extremely limited number of highly specialized cases usually in
regard to unusual offenses”). Others interpret the purpose of the ATCA even more narrowly. See, e.g., Thomas H. Lee, The Safe Conduct Theory of the Alien Tort Statute, 106
COLUM. L. REV. 830 (2006) (arguing that the ATCA was intended to cover violations of
safe conduct only and that the ATCA should provide relief for torts committed by private
individuals only if U.S. sovereign responsibility is implicated).
72. Tel-Oren, 726 F.2d at 815.
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gation to protect ambassadors.73 When the first Congress enacted the
Judiciary Act in 1789, it modeled the drafting on a 1781 resolution by the
Continental Congress that was never passed.74 The 1781 resolution
exhorted states to pass laws that would punish the “most obvious” violations of the law of nations, which Judge Bork referenced in Tel-Oren.75
But it also asked states to grant courts jurisdiction “to decide on offenses
against the law of nations, not . . . enumerat[ed]” and resolved that tort
suits be authorized “for damages by the party injured.”76 Those who argue
for a broad interpretation of the ATCA note that the drafters specifically
chose to grant jurisdiction to all district courts as opposed to the Supreme
Court alone, and that jurisdiction was granted for “all causes” rather than
limited to specific violations of international law, such as infringement of
the rights of ambassadors.77
Filartiga v. Pena-Irala,78 a Second Circuit decision, brought the
ATCA back to life after lying near dormant for close to two hundred
years.79 This decision has been called the Brown v. Board of Education
for transnational public law litigants.80 Filartiga held that the ATCA
provides jurisdiction for violations of “universally accepted norms of the
international law of human rights, regardless of the nationality of the par73. Beth Stephens, Individuals Enforcing International Law: The Comparative and Historical Context, 52 DEPAUL L. REV. 433, 443–44 (2003) [hereinafter Stephens, Historical
Context]. Stephens further argues that the First Congress, in enacting laws enabling both
criminal and civil liability for violations of international law, allowed for a “mixed approach” that provided for “criminal prosecution of the perpetrator and compensation to
those injured through a civil suit.” Id. at 444.
74. William R. Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, in THE ALIEN TORT CLAIMS ACT: AN ANALYTICAL ANTHOLOGY 119, 142 (Ralph G. Steinhardt & Anthony D’Amato eds., 1999). The
First Congress drafted legislation on the issue of the violation of the law of nations some
time after an infamous incident in 1784 involving an assault by a Frenchman, de Longchamps, upon the Secretary of the French Legion on American soil. Since states alone
held the lawmaking power at the time, the Continental Congress had no power that would
allow for a federal remedy. Thus, the delegates at the Constitutional Convention and
subsequently the First Congress were well aware of the need to provide legislation
around violations of international law. Id. at 139–40.
75. Id. at 138 (citing 21 J. CONT. CONG. 1137 (1781)).
76. Id.
77. Id. at 146 (citing Judiciary Act § 9).
78. 630 F.2d 876 (2d Cir. 1980).
79. See Frank Christian Olah, MNC Liability for International Human Rights Violations under the Alien Tort Claims Act: A Review & Analysis of the Fundamental Jurisprudence and a Look at Aiding & Abetting Liability under the Act, 25 QLR 751, 755 &
n.19 (2007).
80. Harold Hongju Koh, Transnational Public Law Litigation, 100 YALE L.J. 2347,
2366 (1991).
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ties.”81 As long as there is “[1] an action by an alien, [2] for a tort only,
[3] committed in violation of the law of nations,” a suit may be properly
brought in district court.82 The Second Circuit further explained that the
courts must carefully define the law of nations. If they failed to do so,
“the courts of one nation might feel free to impose idiosyncratic legal
rules upon others, in the name of applying international law.”83
Since Filartiga, suits under the ATCA generally follow one of two
routes: they are filed against either a State recognized by the United
States (or persons acting in an official capacity for the State)84 or, as is
more recently the case, persons acting in an individual capacity.85 Because
courts had generally only applied international law to States,86 it was not
clear that, when faced with the issue, courts would find private actors
liable as well under the ATCA. Kadic v. Karadzic, decided in 1995, was
one of the first cases to address whether a person acting in an individual
capacity, not as a functionary of the State, could be held responsible for
violations of the law of nations. Here, the Second Circuit found that the
ATCA is applicable to private actors.87 Karadzic argued that only States
and persons acting under color of law could be held liable for violations
of international law, and that because he was a private individual, not a
81. Filartiga, 630 F.2d at 878.
82. Id. at 887 (explaining the elements for making out a tort violation under the
ATCA).
83. Id. at 881.
84. Under the language of the statute, States are not exempt from suits under the
ATCA. But generally, they have not been successfully named as defendants as a result of
States’ general sovereign immunity to suits. See Beth Stephens, Judicial Deference and
the Unreasonable Views of the Executive Branch, 33 BROOK. J. INT’L L. 773, 812 (2008)
[hereinafter Stephens, Unreasonable Views]. Under the Foreign Sovereign Immunities
Act of 1976, 28 U.S.C. §§ 1602–11 (2006), States and their instrumentalities are, subject
to certain exceptions, immune from the jurisdiction of the court. And even when States
are not immune to the court’s jurisdiction under the exceptions enumerated in the Foreign
Sovereign Immunities Act, the act of state doctrine may cause the court to
decline to review the legality of the State’s actions due to concerns about encroaching on
the executive branch’s ability to set foreign policy. See, e.g., Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398 (1964). Indeed, in a footnote in Sosa v. Alvarez-Machain, the
court remarked that there was a “strong argument that federal courts should give serious
weight to the [e]xecutive [b]ranch’s view of the case’s impact on foreign policy.” 542
U.S. 692, 733 n.21 (2004). Another prudential doctrine that courts have indicated may
limit their ability to adjudicate claims is when they are presented with a nonjusticiable
political question. See, e.g., Baker v. Carr, 369 U.S. 186 (1962).
85. GARY CLYDE HUFBAUER & NICHOLAS K. MITROKOSTAS, AWAKENING MONSTER:
THE ALIEN TORT STATUTE OF 1789, at 4–5 (2003).
86. Olah, supra note 79, at 775.
87. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).
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state actor, he could not be sued under the ATCA.88 The court rejected
this argument, asserting that “certain forms of conduct violate the law of
nations whether undertaken by those acting under the auspices of a state
or only as private individuals.”89 That is, there are certain universal
norms that bind all entities, regardless of whether they are private individuals or state actors. For support, the court cited both the Restatement
(Third) of the Foreign Relations Law of the United States,90 which provides for private actor liability for violations of certain universal norms,
as well as offered historical examples of private actions that were considered violations of international law, such as piracy, the slave trade, and
certain war crimes.91
In 2004, the Supreme Court finally spoke on the ATCA in Sosa v.
Alvarez-Machain.92 One of the issues before the Court was whether the
ATCA was a jurisdictional statute only and thus “stillborn.”93 If it were
solely jurisdictional, the statute would only enable litigants to bring
claims once Congress provided a further private right of action through
additional legislation, such as the Torture Victim Protection Act.94 The
Sosa decision, however, did not interpret the statute to require further
legislation. The Court recognized a private right of action for ATCA
claims, but it defined the types of claims that can be brought under the
ATCA relatively narrowly. First, the violation must be “definite” and
“accept[ed] among civilized nations.”95 The Court cited to a concurring
opinion in Tel-Oren v. Libyan Arab Republic, in which Judge Edwards
found that the ATCA only reaches “a handful of heinous actions—each
of which violates definable, universal and obligatory norms.”96 And
when laws or treaties do not clearly define a “violation of international
law,” the Court stated that we should “look[] to those sources we have
long, albeit cautiously, recognized,”97 including:
88. Id. at 239.
89. Id.
90. See, e.g., RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED
STATES pt. II, introductory note (1987) (“Individuals may be held liable for offenses
against international law, such as piracy, war crimes, or genocide.”); id. § 404 (“A state
has jurisdiction to define and prescribe punishment for certain offenses recognized by the
community of nations as of universal concern . . . .”).
91. Karadzic, 70 F.3d at 239.
92. 542 U.S. 692 (2004).
93. Sosa, 542 U.S. at 714.
94. Torture Victim Protection Act of 1991, Pub. L. 102-256, 106 Stat. 73 (1992)
(codified as a note to the ATCA, 28 U.S.C. § 1350 (2006)).
95. Sosa, 542 U.S. at 732.
96. Id.
97. Id. at 733.
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customs and usages of civilized nations; and, as evidence of these, to
the works of jurists and commentators . . . . Such works are resorted to
by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the
law really is.98
As to claims against multinational corporations, Sosa was almost silent. In a footnote that left many wondering in what direction the Court
would turn if faced with another ATCA claim, Justice Souter, writing for
the majority, stated, “A related consideration is whether international law
extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation
or individual.”99 He went on to cite disagreement amongst the circuits: in
Tel-Oren v. Libyan Arab Republic, the D.C. Circuit found that there was
“insufficient consensus” in 1984 that private individuals could commit
violations of international law; in Kadic v. Karadzic, the Second Circuit
found that “sufficient consensus” existed in 1995.100 The Court took a
misstep in not indicating at least in dicta whether ATCA claims against
corporations are actionable, especially since this is one of the issues that
has brought the most attention to the use of the ATCA in district
courts.101
By 2004, the decisions of most courts reflected a belief that, just like
States, individuals and corporations could be held liable for grave violations of international law.102 Certainly the high profile of the International Criminal Tribunal for Rwanda (“ICTR”) and the International Tribunal for the Former Yugoslavia (“ICTY”) contributed to this view, but
holding individuals responsible for violations of international law is not
an innovation of the last twenty years. Under Article I, Section 8, of the
Constitution, Congress is granted the power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the
Law of Nations.”103 Later, the trials at Nuremberg provided strong justi98. Id. at 734 (citing The Paquete Habana, 175 U.S. 677, 700 (1900)). Additionally,
the Restatement (Third) of Foreign Relations Law states that a rule of international law
can be found derivatively by examining “general principles common to the major legal
systems of the world.” RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE
UNITED STATES § 102 (1987). Such principles “may be invoked as supplementary rules of
international law where appropriate.” Id.
99. Id. at 732 n.20.
100. Id.
101. “Approximately one third of the post-Sosa cases involve corporate defendants.”
Stephens, Unreasonable Views, supra note 84.
102. See infra note 125.
103. “Pirates, the very exemplar of intended defendants under Section 1350, were not
always or necessarily considered ‘state actors,’ and there was never any question that
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fication for applying international law to private actors as well as States.
The United States Military Tribunal at Nuremberg convicted forty-three
individual German citizens for crimes against humanity, including forced
labor and enslavement in the individuals’ factories and mines.104
While Sosa did not exactly throw the gates open for litigation under the
ATCA, it certainly did not deny the power of the ATCA to permit plaintiffs
an opportunity to be heard in instances of grave violations of international
law. And because it did not speak one way or another to the relatively
straightforward question of whether individuals and multinational corporations can be held accountable for these violations, ATCA suits against
multinational corporations proceed.
B. Claims Against Multinational Corporations
Courts have generally identified three ways that multinational corporations may be found liable under the ATCA.105 First, a corporation’s action may be deemed “state action” if the corporation is working so closely with a government that its actions in certain areas are indistinguishable
from the actions of the government, or if the corporation assumes roles
traditionally associated with government.106 Second, even if a corporation does not have an established relationship with a State, it may still be
liable under the ATCA for violations of universally accepted norms.107
For example, a private corporation that commits acts of genocide would
be held directly liable for genocide because genocide is universally contheir depredations were in violation of the law of nations and actionable under the
ATCA.” Ralph G. Steinhardt, The Internationalization of Domestic Law, in THE ALIEN
TORT CLAIMS ACT: AN ANALYTICAL ANTHOLOGY, supra note 74, at 3, 11. See also supra
notes 69–77 and accompanying text.
104. These individuals were specifically found to have acted independently of the
German government. Steinhardt, supra note 103, at 9.
105. There are important policy reasons for holding corporations liable for violations
of international law. When a corporation knowingly supplies assistance to a State that
permits the State to commit violations of international law it would not have otherwise
been able to commit, the corporation is culpable. It significantly assisted the State in its
perpetration of the harms. Also, because the work of a corporation often involves the
decisions of many individuals, it can be much simpler to apportion blame to a corporation
than a group of individuals. Anita Ramasastry, Corporate Complicity: From Nuremberg
to Rangoon, 20 BERKELEY J. INT’L L. 91, 97, 105 (2002). However, some would argue
that a corporation should not be expected to play the role of policymaker by encouraging
States to comply with universal human rights standards, and that placing this expectation
upon corporations may chill foreign investment. See, e.g., Lucien J. Dhooge, A Modest
Proposal to Amend the Alien Tort Statute to Provide Guidance to Transnational Corporations, 13 U.C. DAVIS J. INT’L L. & POL’Y 119, 134 (2007).
106. See infra notes 111–13 and accompanying text.
107. See infra notes 114–18 and accompanying text.
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sidered an international crime. Finally, and most controversially, some
courts have based third-party liability for private actors on differing understandings of civil liability for aiding and abetting violations of international law.108
Many of the ATCA suits against corporations can be traced back to the
1997 case, Doe I v. Unocal, where for the first time a district court found
that a corporation could be held liable under the ATCA, both for certain
violations of international law such as torture and forced labor, and for
working in concert or as a joint venturer with the State.109 Since that decision, fifty-two suits have been filed in federal courts against corporate
defendants as of spring 2008; three were settled, thirty-three dismissed,
and fifteen were pending.110
A corporation will be considered a de facto state actor, and thus liable
under the ATCA for violations of international law, when it takes action
in areas typically performed only by a State.111 Additionally, even when
the corporation has not taken over functions traditionally acted on by the
State, it can be liable when it holds such a close relationship with the
state that it is acting under color of law.112 Generally, a corporation can
be said to be acting under “color of law” when it “maintain[s] an interdependent or symbiotic relationship with the public party; when the state
requires, encourages, or is significantly involved in nominally private
conduct; when the private party exercises functions traditionally performed by the state; or when the private parties conspire with state officials.”113
108. See infra note 125.
109. Doe I v. Unocal Corp., 963 F. Supp. 880, 891–92 (C.D. Cal. 1997).
110. Stephens, Unreasonable Views, supra note 84, at 814.
111. Gregory G.A. Tzeutschler, Corporate Violator: The Alien Tort Liability of Transnational Corporations for Human Rights Abuses Abroad, 30 COLUM. HUM. RTS. L. REV.
359, 389 (1999).
112. See, e.g., Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1148 (C.D. Cal. 2002),
aff’d in part, vacated in part, rev’d in part, 456 F.3d 1069 (9th Cir. 2006), opinion withdrawn and superseded in part on reh’g, 487 F.3d 1193 (9th Cir. 2006), reh’g en banc
granted 499 F.3d 923 (9th Cir. 2007) (holding that the actions of the State of Papua New
Guinea were “fairly attributable” to Rio Tinto given their joint action).
113. BETH STEPHENS & MICHAEL RATNER, INTERNATIONAL HUMAN RIGHTS LITIGATION
IN U.S. COURTS 97–98 (1996). An understanding of the term “color of law” in U.S. courts
as applied to private actors comes from the courts’ interpretation of the U.S. civil rights
statute, 42 U.S.C. § 1983 (2000). See Stephens, Historical Context, supra note 73, at 437
(stating that courts that applied the principles of violations under color of law to U.S.
civil rights statutes “paved the way for litigation against corporations”). The Supreme
Court has applied this definition of action under color of law to determine when a private
entity can be considered a state actor and thus liable under § 1983. See Tzeutschler, supra
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Corporations have also been found liable under the ATCA for certain
specific violations of international law. There is a set of carefully defined
universal norms that bind both States and private actors.114 As the court
in Karadzic noted, “[C]ertain forms of conduct violate the law of nations
whether undertaken by those acting under the auspices of a state or only
as private individuals.”115 Under treaties and customary international law,
these norms are considered of such importance that to violate them is to
violate international law, regardless of the identity of the transgressor.116
Blackstone defines the law of nations as “a system of rules, deducible by
natural reason, and established by universal consent among the civilized
inhabitants of the world.”117 These norms may not be imprecise or vague.
An often-cited definition provides that the laws are “universal, definable,
and obligatory international norms.”118
This is not to say that it is a simple task to determine what these norms
are at any particular time. The Sosa Court provided that we should look
to the works of jurists and commentators for evidence.119 The composition of these norms is not static. Laws that reach international consensus,
and views among experts and legal commentators on these laws shift and
develop over time. By the end of the nineteenth century and up until the
twentieth, violations of international law included piracy, slave trading,
and slavery.120 Today the list has significantly expanded.121 The Restatenote 111, at 390–92 (describing the application of the four tests of state action to private
entities).
114. See supra notes 95–98 and accompanying text.
115. Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995).
116. Steinhardt, supra note 103, at 8.
117. Stephens, Historical Context, supra note 73, at 446 (citing 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *67 (Wayne Morrison ed., 2001)
(1753)).
118. Forti v. Suarez-Mason, 672 F. Supp. 1531, 1540 (N.D. Cal. 1987).
119. Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004).
120. Tzeutschler, supra note 111, at 393.
121. For a discussion of which torts constitute violations of international law, see, for
example, Joel Slawotsky, Doing Business Around the World: Corporate Liability under
the Alien Tort Claims Act, 2005 MICH. ST. L. REV. 1065, 1088–98 (2005) (concluding
that violations actionable under the ATCA include crimes against humanity, racial discrimination, slave/forced labor, torture, war crimes, and possibly cruel, inhuman, and/or
degrading conduct, and extrajudicial killing). Slawotsky states that Sosa rejected arbitrary
detention as a basis for an ATCA suit. Id. at 1088. This conclusion is questionable given
that the Sosa Court was insistent that the particular facts presented did not prove a case of
arbitrary detention: “[i]t is enough to hold that a single illegal detention of less than a
day, followed by the transfer of custody to lawful authorities and a prompt arraignment,
violates no norm of customary international law so well defined as to support the creation
of a federal remedy.” Sosa, 542 U.S. at 738. For a different understanding of what torts
are actionable under the ATCA, see Lucien J. Dhooge, Lohengrin Revealed: The Implica-
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ment (Third) of Foreign Relations Law sets forth a list of violations of
international law by states122 to include, among other violations, “torture
or other cruel, inhuman and degrading treatment” and “prolonged arbitrary detention.”123
The final and most controversial mode for finding corporations liable
for violations of international law is through third-party aiding and
abetting liability. Given that most corporations do not intentionally violate international norms, for example, by directly committing acts of
genocide, and that generally corporations are unlikely to have such intions of Sosa v. Alvarez-Machain for Human Rights Litigation Pursuant to the Alien Tort
Claims Act, 28 LOY. L.A. INT’L & COMP. L. REV. 393, 493 (2006) (“The only claims asserted against transnational corporations surviving Sosa are those alleging summary and
extrajudicial execution, torture, and perhaps racial discrimination.”).
122. The Restatement makes clear that in addition to States, individuals and corporations may be held liable for certain violations of international law:
[I]ndividuals and private juridical entities can have any status, capacity, rights,
or duties given them by international law or agreement, and increasingly individuals and private entities have been accorded such aspects of personality in
varying measures. For example, international law and numerous international
agreements now recognize human rights of individuals and sometimes give individuals remedies before international bodies . . . . Individuals may be held liable for offenses against international law, such as piracy, war crimes, or genocide.
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. pt. II, introductory note
(1987) (footnotes omitted).
123. Id. § 702. In full, § 702 asserts:
A state violates international law if, as a matter of state policy, it practices, encourages, or condones
(a) genocide,
(b) slavery or slave trade,
(c) the murder or causing the disappearance of individuals,
(d) torture or other cruel, inhuman, or degrading treatment or punishment,
(e) prolonged arbitrary detention,
(f) systematic racial discrimination, or
(g) a consistent pattern of gross violations of internationally recognized human
rights.
Comment (a) to § 702 notes, “The list is not necessarily complete, and is not closed:
human rights not listed in this section may have achieved the status of customary law,
and some rights might achieve that status in the future.” It is also noteworthy that this list
was considered current as of 1987; certainly additional agreed-upon norms might have
arisen in the last twenty years.
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tertwined relationships with state governments as to be found acting under color of law, aiding and abetting liability has received the most attention, both by legal commentators and the general business community.
Liability for aiding and abetting under the ATCA is still a relatively new
concept in the courts. Because Sosa declined to speak to whether individuals and corporations can be liable under the ATCA,124 the courts
have been left to decide, as a threshold matter, whether aiding and abetting liability under the ATCA exists at all125 and, if so, to select the standard by which to analyze aiding and abetting liability.
Those arguing against corporate aiding and abetting liability126 are
likely to point to the Supreme Court decision in Central Bank of Denver,
N.A. v. First Interstate Bank of Denver, N.A., in which the Court found,
“[W]hen Congress enacts a statute under which a person may sue and
recover damages from a private defendant for the defendant’s violation
of some statutory norm, there is no general presumption that the plaintiff
may also sue aiders and abettors.”127 However, in Khulumani v. Barclay
National Bank, Judge Katzmann stated in a concurring opinion that the
holding in Central Bank is “inapposite” to ATCA claims, because the
“relevant norm is provided not by domestic statute but by the law of
124. See supra notes 99–100 and accompanying text.
125. Post-Sosa, most courts appear to accept the notion that aiding and abetting liability exists for individuals and corporations under the ATCA. William Paul Simmons, Liability of Secondary Actors Under the Alien Tort Statute, 10 YALE HUM. RTS. & DEV. L.J.
88, 111 (2007). See, e.g., Cabello v. Fernandez-Larios, 402 F.3d 1148, 1157 (11th Cir.
2005); In re “Agent Orange” Prod. Liab. Litig., 373 F. Supp. 2d 7, 51–54 (E.D.N.Y.
2005), aff’d, 517 F.3d 104 (2d Cir. 2008). For examples of decisions in which the courts
have declined to find aiding and abetting liability under the ATCA, see In re S. Afr.
Apartheid Litig., 346 F. Supp. 2d 538, 550 (S.D.N.Y. 2004), aff’d in part & vacated in
part sub nom., Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007) (per
curiam) (vacating the district court’s decision, aff’d due to lack of a quorum sub nom.,
Am. Isuzu Motors, Inc. v. Ntsebeza, 128 S. Ct. 2424 (2008). The district court’s decision
in In re S. Afr. Apartheid Litig. to disallow ATCA claims under a theory of aiding and
abetting liability was vacated by the Second Circuit in 2007. For the reasons described in
In re S. Afr. Apartheid Litig., the court in Doe v. Exxon Mobil Corp. declined to find aiding and abetting liability under the ATCA. 393 F. Supp. 2d 20, 24 (D.D.C. 2005), aff’d,
473 F.3d 345 (D.C. Cir. 2007). Now that the Second Circuit has overturned this ruling,
the D.C. District Court decision may have less value as precedent.
126. See, e.g., Curtis A. Bradley, Jack L. Goldsmith, & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869,
924–29 (2007).
127. 511 U.S. 164, 182 (1994). The Court continued that the doctrine of civil aiding
and abetting liability has been “at best uncertain in application.” Id. at 181. For an
interesting analysis on how the aiding and abetting standard might be evaluated in light of
Central Bank, see Simmons, supra note 125, at 111–14.
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nations, and that law extends responsibility for violations of its norms to
aiders and abettors.”128
In In re “Agent Orange” Product Liability Litigation, Judge Weinstein
also rejected reliance on Central Bank in determining whether aiding and
abetting liability exists.129 Judge Weinstein referenced an amicus brief at
length that included a cite to a 1795 opinion from the Attorney General
stating that individuals would be liable under the ATCA for “committing, aiding, or abetting” violations of the laws of war.130 The brief also
cited Talbot v. Jansen,131 a 1795 case in which Talbot, a French citizen,
was found liable for the unlawful capture of a ship in violation of international law, due to his actions in “aiding Ballard[, a U.S. citizen,] to arm
and outfit” the ship and in “cooperating with him on the high seas.”132
Since aiding and abetting liability for violations of international law was
proved to be in existence for over two hundred years, Judge Weinstein
had no trouble dismissing the Central Bank argument.
A majority of courts have found that aiding and abetting liability does
exist under the ATCA, although the courts do not agree on the applicable
legal standard.133 Both the federal district court and the Ninth Circuit in
Doe I v. Unocal134 as well as the Second Circuit in Khulumani v. Barclay
National Bank135 have articulated the standards applied by various courts
128. Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d at 282 (Katzmann, J., concurring).
129. In re “Agent Orange” Prod. Liab. Litig., 373 F. Supp. 2d at 7.
130. Id. at 53–54 (citing Breach of Neutrality, 1 Op. Att’y Gen. 57, 59 (1795)). The
individuals contemplated had “act[ed] in concert with” but did not “control” French naval
ships. Id.
131. 3 U.S. 133 (1795).
132. In re “Agent Orange” Prod. Liab. Litig., 373 F. Supp. 2d at 54.
133. See supra note 125.
134. Doe I v. Unocal was the first case to hold that a multinational corporation could
be found liable under the ATCA for violations of international law. Olah, supra note 79,
at 774. The plaintiffs in Unocal essentially accused the defendants of aiding and abetting
the military of Myanmar, a well-known human rights violator, in the forced labor of the
plaintiffs. Doe I v. Unocal, 395 F.3d 932, 947 (9th Cir. 2002). Unocal had a complicated
procedural history. In 2000, the federal district court granted summary judgment for
Unocal. In 2002, the Ninth Circuit affirmed that decision in part and reversed it in part.
The Ninth Circuit decided to rehear the case in 2003; however, in 2005, the case was
settled before a decision was handed down, thus preventing the chance for the Supreme
Court to speak on the correct standard to apply when analyzing aiding and abetting
claims under the ATCA (assuming, of course, that aiding and abetting claims are cognizable in the first place). See Doe I v. Unocal, 110 F. Supp. 2d 1294 (C.D. Cal. 2000), aff’d
in pt., rev’d in pt., 395 F.3d 932 (9th Cir. 2002), reh’g en banc granted, 395 F.3d 978
(9th Cir. 2003), appeal dismissed, 403 F.3d 708 (9th Cir. 2005).
135. 504 F.3d 254 (2d Cir. 2007) (per curiam), aff’d due to lack of a quorum sub nom.,
Am. Isuzu Motors, Inc. v. Ntsebeza, 128 S. Ct. 2424 (2008).
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in ATCA cases. In particular, courts have alternatively employed the international criminal aiding and abetting liability standards as applied at
Nuremburg—more recently as developed in the ICTY and the ICTR136—
and, perhaps more infrequently, looked to federal common law tort
principles.137
The district court in Doe I v. Unocal used what has been called an
“active participation” standard to judge aiding and abetting liability.138
The court examined several U.S. Military Tribunal decisions at Nuremberg139 and found that because Unocal had not actively participated in
forced labor, it could not be held liable, regardless of the fact that it was
aware of and benefited from the military’s use of forced labor.140 According to the district court, “[L]iability requires participation or cooperation
in the forced labor practices.”141
The Ninth Circuit agreed with the district court that international law
should be applied as set forth in international tribunal cases such as those
at Nuremberg; however, it rejected the “active participation” standard.142
The court’s decision to apply international law rather than domestic law
or the law of the country where the underlying claim took place was
based on several factors. First, because the violation in question was a jus
cogens violation, the law of every state regarding the jus cogens violation
must be identical to the international law standard anyway, or it is per se
invalid.143 Second, the Restatement (Second) of Conflict of Laws states
that if there is no statute in the jurisdiction that governs what law to
apply, the court should take into account “the needs of the interstate and
international systems,” “certainty, predictability and uniformity of re136. See infra notes 138–49 and accompanying text.
137. See infra notes 150–53 and accompanying text.
138. Simmons, supra note 125, at 108.
139. See Unocal, 110 F. Supp. 2d at 1309–10. For further discussion of several U.S.
Military Tribunal cases against German industrialists, see infra Part III.
140. Unocal, 110 F. Supp. 2d at 1310.
141. Id. The court continued, “The Tribunal’s guilty verdict rested not on the defendants’ knowledge and acceptance of benefits of the forced labor, but on their active
participation in the unlawful conduct.” Id. The district court characterized the plaintiff’s
position as arguing that “knowledge and approval of acts is sufficient for a finding of
liability.” Id. at 1309. In retrospect, it was probably a mistake for the plaintiffs to argue
for such a broad rule, given that ATCA litigation in the area of holding multinational
corporations liable for aiding and abetting was so new to the courts at the time.
142. The Ninth Circuit majority states that the “active participation” standard was only
employed in the Nuremberg trials in order to rebut the “necessity defense” invoked by the
defendants. The court goes on to say that the necessity defense is inapplicable in Unocal,
so the active participation standard is also inapplicable. Doe I v. Unocal, 395 F.3d 932,
947–48 (9th Cir. 2002).
143. Id. at 948.
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sult,” and “ease in the determination and application of the law to be applied,”144 all of which point to the desirability of applying international
law. Finally, the court stated that by applying international law, the
underlying policy goal of the statute—“provid[ing] tort remedies for violations of international law”145—is served.
Interestingly, the court did not find it problematic to apply international criminal law standards to international civil law claims, in part because
international human rights law “has been developed largely in the context of criminal prosecutions rather than civil proceedings,”146 thus making criminal law standards the most applicable in ATCA cases. The court
also noted that a separation of criminal and tort claims is often artificial:
[W]hat is a crime in one jurisdiction is often a tort in another jurisdiction, and this distinction is therefore of little help in ascertaining the
standards of international human rights law. Moreover, . . . the standard
for aiding and abetting in international criminal law is similar to the
standard for aiding and abetting in domestic tort law, making the distinction between criminal and tort law less crucial in this context. Accordingly, District Courts are increasingly turning to the decisions by
144. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6 (1971). See also Unocal, 395
F.3d at 948. It is not necessarily true, however, that applying international law to aiding
and abetting civil claims will lead to certainty and predictability. As this section demonstrates, there is no settled standard for international aiding and abetting claims. Bradley,
Goldsmith, and Moore point out that the Rome Statute of the International Criminal
Court may have set forth a “more demanding” standard than the ICTY. See Bradley,
Goldsmith, & Moore, supra note 126, at 927. While the ICTY developed a standard of
“knowingly providing practical assistance, encouragement or moral support that has a
substantial effect on the commission of the crime,” see infra note 148, the Rome Statute’s
General Principles state that “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person . . . [f]or the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its
commission or its attempted commission, including providing the means for its commission . . . .” Rome Statute of the International Criminal Court art. 25(3)(c), July 17, 1999,
2187 U.N.T.S. 90 (emphasis added). Some support for using the Rome Statute to define
aiding and abetting liability may be emerging. In his concurrence in Khulumani, Judge
Katzmann points to the Rome Statute as “particularly significant,” because it “articulates
the mens rea required for aiding and abetting liability.” Khulumani v. Barclay Nat’l Bank
Ltd., 504 F.3d 254, 275 (2d Cir. 2007) (Katzmann, J., concurring). But some scholars
reject using the Rome Statute as a useful source for the definition because it “fails to
incorporate any requirements for finding causation” and fails to “reflect[ or] declare[]
customary international law.” Anthony J. Sebok, Taking Tort Law Seriously in the Alien
Tort Statute, 33 BROOK. J. INT’L L. 871, 884–85 (2008).
145. Unocal, 395 F.3d at 949. The court, however, does not make clear why providing
a tort remedy for violations of international law by applying domestic law would not
serve the policy goals of the ATCA. Id.
146. Id.
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international criminal tribunals for instructions regarding the standards
of international human rights law under our civil ATCA.147
Analyzing ICTR and ICTY cases, the court found that the correct standard to apply is one of “knowing practical assistance or encouragement
that has a substantial effect on the perpetration of the crime.”148 The actus reus requires showing “practical assistance or encouragement which
has a substantial effect on the perpetration of the crime”; the mens rea
requires showing “actual or constructive (i.e., reasonable) knowledge
that the accomplice’s actions will assist the perpetrator in the commission of the crime.”149
In his concurring opinion in Unocal, Judge Reinhardt suggested
instead that “federal common law tort principles, such as agency, joint
venture, or reckless disregard” should be applied.150 He rejected applying
international law standards out of hand, stating that they are “recentlypromulgated”151 and “permit[] imposition of liability for the lending of
147. Id. (citations omitted). See also Sosa v. Alvarez-Machain, 542 U.S. 692, 762–63
(2004) (Breyer, J., concurring) (stating that there is no reason to fail to extend adjudication to a particular nation’s court of a claim concerning alien civil conduct in violation of
international law, given the fact that there is universal consensus to allow any nation’s
court to adjudicate alien criminal conduct that violates international law).
148. Unocal, 395 F.3d at 947, 950–51. The Human Rights Council, tasked with setting
forth human rights standards of corporate responsibility and accountability, incorporated
essentially the same standard used by the majority in the Ninth Circuit decision, with the
exception that the Council also included “moral support,” which the majority in Unocal
did not address. See infra note 152. Citing two cases from the ICTY, the Council stated,
“The international tribunals have developed a fairly clear standard for individual criminal
aiding and abetting liability: knowingly providing practical assistance, encouragement or
moral support that has a substantial effect on the commission of the crime.” Human
Rights Council, Report of the Special Representative of the Secretary-General on the
Issue of Human Rights and Transnational Corporations and Other Business Enterprises,
para. 31, U.N. Doc. A/HRC/4/035 (Feb. 19, 2007). The Council noted, however, that it is
“unknown” whether the International Criminal Court will adopt the same standard. Id.
para. 31 n.28.
149. Unocal, 395 F.3d at 952–53.
150. Id. at 963 (Reinhardt, J., concurring).
151. Id. Certainly the decisions of the ICTY and the ICTR occurred relatively recently,
but the tribunals’ conclusions about the standard for aiding and abetting liability came
from what the majority called an “exhaustive analysis of international case law and international instruments,” primarily from those that arose after World War II. See id. at 950
n.26. And as explained above, aiding and abetting liability for violations of international
law dates back to the adoption of the ATCA. See supra notes 130–31 and accompanying
text. This “new” standard, then, is actually a synthesis of courts’ understanding of criminal aiding and abetting developed over many years.
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moral support.”152 Similarly, in Khulumani, Judge Hall declared that the
courts should review federal common law when examining a claim of
accessory liability.153 But this view has not captured the support of a majority in the federal courts, perhaps in part because the Supreme Court
may have implied that applying international law is appropriate in these
cases.154
III. AIDING AND ABETTING LIABILITY AT NUREMBERG
A. Introduction
While no one definitive standard of aiding and abetting liability under
the ATCA has arisen in the courts, courts and commentators in the United States have been moving toward applying an international standard of
civil liability rather than a federal common law standard.155 Because aiding
and abetting liability for violations of international law is not governed by
treaty, it is especially important to examine the rule of law as developed
in international legal decisions.156 In particular, the aiding and abetting
standard developed in the trials at Nuremberg is worthy of notice.
The war crimes trials at Nuremberg were an early and important attempt
by an international body to hold individuals responsible for complicity in
breaches of international law. The United Nations validated this effort
when the General Assembly endorsed the establishment of the International Military Tribunal and generally affirmed the principles of international law as recognized in the Charter of the Nuremberg Tribunal.157
152. Unocal, 395 F.3d at 963 (Reinhardt, J., concurring). As the majority points out,
the “moral support” element from the ICTY aiding and abetting standard is not incorporated in the standard the Ninth Circuit adopts. See id. at 949 n.24. Nor was it necessary to
even determine whether “moral support” is settled international law or if it has parallels
in domestic law, since it was found that Unocal could be liable for having knowingly
provided practical assistance and encouragement to the Myanmar military. Id. at 951.
153. Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 284 (2d Cir. 2007) (Hall, J.,
concurring). Specifically, Judge Hall looked to § 876(b) of the Restatement (Second) of
Torts. Id. at 287.
154. See, e.g., Xuncax v. Gramajo, 886 F. Supp. 162, 183 (D. Mass. 1995) (explaining
that municipal tort law is an “inadequate placeholder” to address international human
rights violations).
155. “[The Supreme Court’s decision in Sosa] . . . seem[s] to suggest that whatever
liability standard is appropriate for a given norm should be derived from international law
rather than domestic law.” Olah, supra note 79, at 771. See also Khulumani, 504 F.3d at
269 (Katzmann, J., concurring) (“We have repeatedly emphasized that the scope of the
ATCA’s jurisdictional grant should be determined by reference to international law.”).
156. See supra note 98.
157. Affirmation of the Principles of International Law Recognized by the Charter of
the Nürnberg Tribunal, G.A. Res. 95(I), U.N. Doc. A/64/Add.1, at 188 (1946).
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The Nuremberg Charter authorized the Tribunal to prosecute not only
individuals, but also legal persons, so corporations could be found criminally liable.158 Under the Charter, the Tribunal could declare that groups
and organizations were “criminal organizations” at trial.159
After the Allied Powers defeated Germany, the United States, Great
Britain, France, and the U.S.S.R. formed a Control Council to institute
uniform procedures for the trials of war criminals.160 The crimes to be
prosecuted were set forth in Article 6 of the Nuremberg Charter and
included crimes against peace, war crimes, and crimes against humanity.161 The Control Council passed Law No. 10, which specifically provided:
158. Beth Stephens, Sosa v. Alvarez-Machain: “The Door is Still Ajar” For Human
Rights Litigation in U.S. Courts, 70 BROOK. L. REV. 533, 557 & n.115 (2005). See also
Jonathan Clough, Punishing the Parent: Corporate Criminal Complicity in Human
Rights Abuses, 33 BROOK. J. INT’L L. 899, 913 (2008) (stating that holding corporations
criminally liable is a “relatively recent phenomenon” that came about in response to the
rise of corporations during the industrial revolution).
159. “At the trial of any individual member of any group or organization the Tribunal
may declare (in connection with any act of which the individual may be convicted) that
the group or organization of which the individual was a member was a criminal organization.” Charter of the International Military Tribunal art. 9, Aug. 8, 1945, 82 U.N.T.S. 280
[hereinafter IMT Charter].
160. Ramasastry, supra note 105, at 105. Tribunals held by the other Allied Powers
also demonstrate the existence of aiding and abetting liability for violations of international law. See, e.g., In re Tesch, “The Zyklon B Case,” 1 LAW REPORTS OF TRIALS OF
WAR CRIMINALS 93 (Brit. Mil. Ct. 1946) (finding business owner and second-incommand guilty for knowingly supplying poison gas to the Nazis for use in the concentration camps).
161. “Crimes against peace” were defined as “planning, preparation, initiation or
waging of a war of aggression, or a war in violation of international treaties, agreements
or assurances, or participation in a Common Plan or Conspiracy for the accomplishment
of any of the foregoing.” IMT Charter, supra note 159, art. 6. “War crimes” were
defined as “violations of the laws or customs of war.” Id.
Such violations [of the laws or customs of war] shall include, but not be limited
to, murder, ill-treatment or deportation to slave labor or for any other purpose
of civilian population of or in occupied territory, murder or ill-treatment of
prisoners of war or persons on the seas, killing of hostages, plunder of public or
private property, wanton destruction of cities, towns, or villages, or devastation
not justified by military necessity.
Id. Finally, “crimes against humanity” were defined as:
[M]urder, extermination, enslavement, deportation, and other inhumane acts
committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection
with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.
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Any person without regard to nationality or the capacity in which he
acted, is deemed to have committed a crime . . . if he was (a) a principal
or (b) was an accessory to the commission of any such crime or ordered
or abetted the same or (c) took a consenting part therein or (d) was
connected with plans or enterprises involving its commission . . . .162
Thus, the law unambiguously provided for liability for third-party
actors. The United States itself set up six military tribunals to try these
crimes.163
Trials of certain German industrialists under these U.S. Military Tribunals demonstrate how this aiding and abetting standard was applied to
individuals whose businesses profited from gross violations of international law. Businesses could not avert prosecution solely because a dictator conceived of the plan to violate international law and the businesses
played no role in the initial planning:
Hitler could not make aggressive war by himself. He had to have the
co-operation of statesmen, military leaders, diplomats, and business
men. When they, with knowledge of his aims, gave him their cooperation, they made themselves parties to the plan he had initiated.
They are not to be deemed innocent because Hitler made use of them, if
they knew what they were doing.164
These trials at Nuremberg shed light on how courts today might apply an
aiding and abetting standard of liability to multinational corporations.
B. The Flick Case
Frederick Flick, a prominent businessman in the coal and steel industry
in Germany, and five of his business associates were each charged with
participation in the Nazi slave labor program.165 Neither Flick nor his
associates arranged or organized the slave labor used in his plants. As the
tribunal noted, “[T]he slave-labor program had its origin in Reich governmental circles and was a governmental program, and . . . the defendants had no part in creating or launching the program. . . . [T]he defendants had no actual control of the administration of such program even
Id.
162. Control Council Law No. 10, in TELFORD TAYLOR, FINAL REPORT TO THE
SECRETARY OF THE ARMY ON THE NUERNBERG WAR CRIMES TRIALS UNDER CONTROL
COUNCIL LAW NO. 10 app. D, at 251 (1949).
163. Ramasastry, supra note 160, at 105.
164. United States v. Goering, Nuremberg Tribunal, 6 F.R.D. 69, 112 (1947).
165. United States v. Friedrich Flick, “The Flick Case,” 6 TRIALS OF WAR CRIMINALS
BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10,
at 1190 (1952).
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when it affected their own plants.”166 The businessmen argued the affirmative defense of necessity to the charge.167 The court accepted this defense for four of the six defendants. The defendants were “conscious of
the fact that it was both futile and dangerous to object” to the use of slave
labor.168 However, because Bernhard Weiss, one of the defendants, had
taken “active steps” to procure further slave labor for production with the
“knowledge and approval” of Flick, both Flick and Weiss were found
guilty.169
C. The Krupp Case
The defendants in the Krupp case were businessmen in the coal and
steel industry as well; their company, Fried. Krupp, A.G., produced large
amounts of artillery and naval units for the Nazi regime.170 Like the
defendants in the Flick case, they were accused of employing slave labor,
and they also pled the defense of necessity.171 The court rejected this
defense, because it found that the company “manifested not only its willingness but its ardent desire to employ forced labor.”172 As evidence, the
court cited numerous pieces of correspondence in which Fried. Krupp,
A.G. expressed its desire for new slave laborers.173 This result is not necessarily incompatible with the result in the Flick case, because the court
presented the proactive steps taken by the company to procure slave labor rather than what seems to be characterized in the Flick case as a passive acceptance of the labor.174
166. Id. at 1196.
167. The court described “necessity” as “a defense when it is shown that the act
charged was done to avoid an evil both serious and irreparable; that there was no other
adequate means of escape; and that the remedy was not disproportioned to the evil.” Id. at
1200 (citing 1 WHARTON’S CRIMINAL LAW para. 126).
168. Id. at 1197.
169. Id. at 1202.
170. United States v. Alfried Felix Alwyn Krupp von Bohlen und Halbach, “The
Krupp Case,” 9 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY
TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 7–11 (1950).
171. Id. at 1435.
172. Id. at 1440. See also United States v. Carl Krauch, “The Farben Case,” 8 TRIALS
OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL
COUNCIL LAW NO. 10, at 1179 (1952) (finding certain members of I.G. Farben, a chemical and pharmaceutical company, guilty for using slave labor and rejecting their defense
of necessity because they were “to a very substantial degree, responsible for broadening
the scope of that reprehensible system”).
173. The Krupp Case, supra note 170, at 1439–42.
174. The tribunal in Krupp, however, did not look at whether each individual defendant had taken proactive steps to procure slave labor. The tribunal in Flick, on the other
hand, examined whether each individual defendant had taken steps to procure slave labor,
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D. The Einsatzgruppe Case
Waldemar Klingelhoefer was accused of various war crimes and
crimes against humanity.175 He maintained that his only role within the
“Einsatzgruppe,” or special task force, was limited to interpreting.176 The
court stated that even if this were true, “it would not exonerate him from
guilt . . . .”177 During trial, Klingelhoefer admitted to turning over lists of
Communists to his department, and to knowing that, by turning over the
lists, those persons would be executed. “In this function,” said the court,
“he served as an accessory to the crime.”178 Klingelhoefer, then, could
not escape criminal responsibility for having played a substantial role in
the deaths of these individuals, even if he did not participate or was not
present as a witness when they were killed.
E. Conclusion
The standard emerging for aiding and abetting liability in both civil
ATCA trials and criminal international tribunal cases is derived directly
from Nuremburg.179 The trials at Nuremberg established that an
individual is liable when he or she provides assistance that substantially
affects the perpetration of the violation of international law, and knows
that such assistance will assist in the violation. This “knowledge and
substantial assistance” standard does not require that the aider and
abettor desired or wanted the particular crime or breach of international
law to occur (though an individual may be excused if under compulsion
or coercion).180 At Nuremberg, being a willing participant in a violation
of international law was enough for liability. The steel, coal, chemical,
and armament companies may have regarded the assistance they provided as simply a business opportunity, and they may or may not have
looked upon what the Nazis did with horror and distaste, but because
they provided significant assistance to the Nazis in carrying out their enslavement plans, and they had knowledge of the enslavement, they deserved punishment.
as Weiss had, or supervised and approved the actions of those who procured the labor, as
Flick had. See The Flick Case, supra note 165, at 1197–202.
175. United States v. Otto Ohlendorf, “The Einsatzgruppe Case,” 4 TRIALS OF WAR
CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL
LAW NO. 10, at 13–22 (1950).
176. Id. at 569.
177. Id.
178. Id.
179. Nuremberg was the first international effort to delineate jus cogens norms. See
Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir. 1992).
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The Nuremberg standard of aiding and abetting liability continues to
be developed in courts today, most notably in the international tribunals
in the former Yugoslavia and Rwanda.180 By finding aiding and abetting
liability, the Nuremberg tribunals, the ICTR and the ICTY, and many
federal courts have implicitly rejected assertions such as the following,
which was made by a corporate executive and cited by the Ninth Circuit
in Doe I v. Unocal:
By stating that I could not guarantee that the army is not using forced
labour, I certainly imply that they might, (and they might) but I am
saying that we do not have to monitor army’s behavior: we have our
responsibilities; they have their responsibilities; and we refuse to be
pushed into assuming more than what we can really guarantee. About
forced labour used by the troops assigned to provide security on our
pipeline project, let us admit between Unocal and [its subcontractor
corporation] Total that we might be in a grey zone.181
When a corporation knows that a serious violation of international law is
occurring, and it provides practical assistance that substantially affects
that violation, the corporation should be held liable under the ATCA. 182
IV. WANG’S LIKELIHOOD OF SUCCESS
Wang accused Yahoo of aiding and abetting torture, cruel, inhuman,
and degrading treatment, and prolonged arbitrary detention, certainly in
180. See, e.g., Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgment and Sentence (Jan. 27, 2000); Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment (Dec.
10, 1998). Many U.S. federal courts have acknowledged the influence of international
tribunals in determining the definition and scope of the most serious violations of international law. See, e.g., Doe I v. Unocal, 395 F.3d 932, 950 (9th Cir. 2002) (finding the
ICTR and the ICTY “especially helpful” in considering the standard to use for civil aiding and abetting liability). For an overview of the critiques of the use of Nuremberg
precedent in ATCA litigation (and responses to these critiques), see Gwynne Skinner,
Nuremberg’s Legacy Continues: The Nuremberg Trials’ Influence on Human Rights
Litigation in U.S. Courts Under the Alien Tort Statute, 71 ALB. L. REV. 321, 353–66
(2008).
181. Unocal, 395 F.3d at 942. Certainly Unocal could not direct the military’s actions
in employing forced labor, but the company knew that grave human rights violations
were occurring in Myanmar and was eventually informed that these violations were also
occurring in connection with the Unocal project. See id. at 939–42. The Nuremberg
standard would impose liability where the company is aware of the serious violations and
provides substantive assistance for their accomplishment.
182. The principles of law set forth by the Nuremberg tribunals are “significant not
only because they have garnered broad acceptance, but also because they were viewed as
reflecting and crystallizing preexisting customary international law.” Khulumani v.
Barclay Nat’l Bank Ltd., 504 F.3d 254, 271 (2d Cir. 2007) (Katzmann, J., concurring).
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part because by international consensus these violations are considered
so serious that they apply to individuals and corporations as well as
States.183 If the court had applied the same aiding and abetting standard
established at Nuremberg and developed by the ICTY and the ICTR,184
Wang would have needed to show first that Yahoo provided practical
assistance or encouragement to the Chinese government that substantially affected the torture, cruel treatment, and arbitrary detention Wang experienced at the hands of the government. Wang would have also needed
to show that Yahoo had actual or reasonable knowledge that its actions
would assist the Chinese government in committing these violations.
The practical assistance prong of the aiding and abetting analysis
would have been less difficult to demonstrate for Wang; unless Yahoo
could have shown that the government retrieved or could have retrieved
the information on Wang’s identity elsewhere, it is likely that Yahoo’s
provision of such information on request would have been considered
practical assistance with a substantial effect on the violations of international law. Imputing knowledge to Yahoo might have proven more difficult. In Doe I v. Unocal, the Ninth Circuit provided a useful list of the
types of evidence that could have been used to impute actual or reasonable knowledge to Yahoo: a risk assessment provided by an outside consulting group to the corporation, evaluating the practices of the government in connection with the company’s project; a statement from a corporate executive that the government might go outside the boundaries of
international law; warnings and confirmations from human rights groups
that the government was violating international law in connection with
the corporation’s business in the country; information received from a
consultant confirming the “egregious” violations; and receipt of documents generally circulated from the State Department on the country’s
violations of international law.185
Yahoo would have probably argued that the Unocal case was distinguishable from Wang’s. International human rights groups and even the
consultants it had hired told Unocal that the Myanmar military was making use of forced labor on Unocal’s project while the project was still
ongoing.186 Yahoo, on the other hand, was not made aware that turning
over Wang’s name would result in Wang’s imprisonment, torture, and
humiliating treatment. Yahoo also might have argued that businesses
183. See supra notes 121–23 and accompanying text.
184. For an overview of the similarities and differences between modern international
tribunals and the tribunals set up at Nuremberg, see Theodor Meron, Reflections on the
Prosecution of War Crimes by International Tribunals, 100 AM. J. INT’L L. 551 (2006).
185. Unocal, 395 F.3d at 940–42.
186. Id. at 941–42.
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cannot control the actions of a repressive government. Some courts may
be sympathetic to an argument that a chilling effect on business investments outside the United States could occur if a claim like this is allowed
to proceed187; however, courts would probably not be sympathetic to an
argument that Yahoo’s only motive in doing business in China was profit, and that it had no malevolent intent. The Nuremberg tribunals found
such motive no excuse.188
The liability of Yahoo would have most likely turned on how narrowly the
court defined the “knowledge” prong of the aiding and abetting analysis. If
knowledge could have been imputed from information known to the general public, for example, that China’s government represses dissidents,
and that in doing business in China, Yahoo might have been required to
turn over some information on its customers (for known or unknown
purposes), then Yahoo would have certainly been liable. However, if the
court had required Yahoo to know specifically that by turning over
Wang’s identifying information, he would be jailed, tortured, and subjected to cruel and degrading treatment, Yahoo’s liability would have
been unlikely. A middle-of-the-road “knowledge” standard would require
Yahoo to know specifically that it had turned over Wang’s account information due to his dissemination of “state secrets,” but not that giving the
information would result in Wang’s torture and imprisonment.
CONCLUSION AND A PROPOSAL FOR THE AIDING AND ABETTING CIVIL
LIABILITY STANDARD FOR MULTINATIONAL CORPORATIONS
If the court had employed this middle standard, it is likely that the
court would have ruled in Wang’s favor. Critically, the General Counsel
of Yahoo informed Congress that the request for Wang’s identification
from the Chinese government contained reference to “state secrets,” a
term widely known to mean a search for information on dissidents. Yahoo
apparently complied without a second thought. Additionally, the fact that
187. Indeed, the Bush administration has argued in amicus briefs filed in ten different
ATCA cases that ATCA litigation interferes with foreign policy. See Stephens,
Unreasonable Views, supra note 84, at 773–74. The Bush administration has strenuously
objected to the existence of aiding and abetting liability under the ATCA and argues that
if aiding and abetting liability were to be found, investments by both U.S. and non-U.S.
businesses in developing countries would decrease, undermining political and economical
stability in those countries, with harm resulting to the United States. Id. at 792–93.
Stephens argues that the administration’s position should be rejected because it fails to
prove a correlation between the acts at issue in the lawsuit and the “dangers predicted.”
Id. at 800–01. Stephens continues that the arguments upon which the administration relies
are “patently absurd.” Id. at 802.
188. See, e.g., The Flick Case, supra note 165.
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the suit was filed in a district court in California, where appeals eventually go to the same circuit court that decided Unocal, might have made a
decision in Wang’s favor more likely. But Unocal was decided before
the Sosa decision, so whether the court would have applied a different
aiding and abetting standard is unclear, given that Sosa did not address
the aiding and abetting issue specifically. Finally, for a corporation as
large and sophisticated as Yahoo, it is likely that the discovery process
would have revealed that Yahoo understood the implications its actions
posed for one similarly situated to Wang. Yahoo likely employed many
consultants to assess the risks before venturing into business in China. It
is hard to imagine that Yahoo would not have been aware that it might be
required to turn over identifying information to the Chinese government
as a condition of doing business there.189 Prominent human rights organizations have also been active in putting companies and States on notice
about the practices of the Chinese government that violate established
standards of international law.190
While liability for Yahoo would not have been clear-cut, and it is not
even necessarily clear that the court would have used the internationally
developed standard for criminal aiding and abetting, it was probably wise
that Yahoo settled, given the negative attention from Congress, the media, and human rights groups. It will be interesting to find out how the
settlement of the case informs how Yahoo decides to handle requests
from the Chinese government in the future. Yahoo without question now
has knowledge of what could happen to its customers when the company
turns over information on individuals accused of disseminating “state
secrets.”
Since Karadzic and Unocal were decided, most courts facing the issue
have found that corporations may be held liable under the ATCA for aiding and abetting. It might be fair to say that for a majority of courts and
commentators, the question is no longer whether corporations should be
held liable for aiding and abetting. Rather, the question is when should
corporations be held liable for aiding and abetting. The practical consequences of the resolution of this question are far-reaching, so it is important
that, in setting the standard, courts consider not only the relevance of
international law—after all, international law is a part of the federal
common law—but also that corporations should not be held accountable
189. Indeed, Google was so concerned about this possibility that it declined to provide
email services when commencing business in China. See Thompson, supra note 12.
190. See, e.g., Amnesty International, Reports, News Articles, and Campaigns on Human Rights in China, http://www.amnesty.org/en/region/china (last visited Nov. 10,
2008); Human Rights Watch, Press Releases, Letters, Reports, and Commentary on Human Rights in China and Tibet, www.hrw.org/asia/china.php (last visited Nov. 10, 2008).
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for the sins of their business partners in every instance in which the partners breach established standards of international law. Repressive governments are not necessarily predictable, much less stable, and corporations that want to do business globally should not be expected to forecast
suppression of dissent by means that are illegal under international
norms. A “knowledge” standard for aiding and abetting, then, should not
be so narrowly defined that it would impute knowledge to a corporation
for merely knowing, without more, that a government with whom it
works has repressive tendencies. But if a corporation provides substantial
assistance to a State that allows the State to more easily carry out oppression against its citizens in breach of international law, with knowledge
that this oppression would likely follow from its assistance, that corporation should be on notice that it may be held liable in U.S. courts for violations under the ATCA. Finding corporations responsible for substantial assistance to governments that seriously violate international law
upholds the legacy of the war crimes trials at Nuremberg.
Mara D. Byrne*
* B.A., University of Virginia (2000); J.D., Brooklyn Law School (expected 2009).
I would like to thank my parents Patrick and Patricia Byrne for their support and encouragement.
NOT ALL WHO WANDER SHOULD BE LOST1:
THE RIGHTS OF INDIGENOUS BEDOUINS IN
THE MODERN STATE OF ISRAEL
INTRODUCTION
T
he past two centuries can perhaps best be described as the age of
nationalism. Colonialism, the touchstone of the late eighteenth
through the early twentieth centuries, began to wane, and indigenous
peoples all across the globe began to take responsibility for the determination of their own social and political futures.2 Among the weakest,
poorest, and least-represented members of developing societies, indigenous peoples are often disregarded, at best, and discriminated against, at
worst, within the legal and social frameworks of the countries in which
they reside.3 In order to remedy past inequities, it is therefore necessary
to explore the various mechanisms of international law as they relate to
both indigenous peoples of the world and the governments that are their
de facto rulers. Nowhere is this more apparent than in the modern State
of Israel’s relations with its Bedouin Arab inhabitants.4
Since its inception in 1948, Israel has dealt with the issues of the Bedouin minority within its borders in various ways, ranging from the discriminatory5 to the seemingly beneficial.6 This Note argues that Israel, as
a democracy and as a signatory to various international treaties and conventions on human rights,7 has an affirmative duty to redress past inequities in the treatment of its Bedouin population as well as an incumbent
responsibility to safeguard the rights of all its citizens. Part I of this Note
describes the factual and legal history of the treatment of Bedouin Arabs
in the State of Israel. Part II looks at the domestic legal framework within
1. Apologies to J.R.R. Tolkien for the bastardization of the passage, “All that is gold
does not glitter, not all those who wander are lost.” J.R.R. TOLKIEN, THE FELLOWSHIP OF
THE RING 168 (Houghton Mifflin 2002) (1954).
2. See generally S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW
(2004).
3. Id.
4. For a general overview of the history of Bedouin Arab minorities in Israel, see
PENNY MADRELL, THE BEDUIN OF THE NEGEV (1990).
5. For a general discussion of Israel’s discriminatory policies towards its Bedouin
citizens, specifically in the sphere of housing rights, see Tawfiq Rangwala, Inadequate
Housing, Israel and the Bedouin of the Negev, 42 OSGOODE HALL L.J. 415 (2004).
6. For discussion of a recent Israeli Supreme Court decision mandating the implementation of affirmative action in the assignment of counselors for Bedouin schools to
remedy high dropout rates, see Adalah, Newsletter Vol. 9 (Jan. 2005), http://www.adalah.
org/newsletter/eng/jan05/1.php.
7. See infra notes 88–89.
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which Israeli conduct towards the Bedouin minority can be judged. Part
III examines the international legal obligations Israel has to its citizens
and discusses various sources of law that shed light on the responsibilities Israel must fulfill. Part IV surveys the obligations owed to the
“stranger” in what can arguably be called one of the earliest systems of
“international law”—Jewish law—and explores how these obligations
instruct the conduct of the Jewish State. Finally, Part V looks at the current situation of Bedouins in Israel and the impact of recent legal developments. Ultimately, this Note calls for Israeli leaders and academics to
unequivocally support proactive changes in how Israeli law and society
treat Bedouin Arabs as a precursor and prerequisite to any lasting peace
between Israel and its Arab neighbors.
I. NOMADS NO MORE: A BRIEF HISTORY OF BEDOUIN ARABS IN ISRAEL
The term “Bedouin” has varied meanings8 and connotations.9 The terminology used to describe Israel’s Arab citizens is in itself “highly politicized”10 and infuses the legal inquiry with biases and preconceptions.
Regardless of the connotations, it is clear that the Bedouins in present-
8. Long utilized as a synonym for the term “Arab” in what is now known as the
Middle East, the name “Bedouin” comes from the Arabic badawiyin, meaning people
who hail from open areas such as the desert. “Bedouin” often has the further connotation
of a “raider.” All of the nomadic tribes in the region were “Arabs” (“wanderers”), but
some received the additional classification of “raiders.” THOMAS KIERNAN, THE ARABS
70 (1975).
9. See MADRELL, supra note 4, at 20 (“To Europeans the word ‘beduin’ evokes a
strong and generally positive image. . . . [B]eduin are less romantic in Israeli eyes than in
British. Where Englishmen see noble simplicity and the exhilaration of desert horizons,
the Israeli thinks of smuggled hashish, trachoma and illiterate children.”).
10. Zama Coursen-Neff, Discrimination Against Palestinian Arab Children in the
Israeli Educational System, 36 N.Y.U. J. INT’L. L. & POL. 749, 749–50 n.2 (2003) (choosing not to use the term Bedouin, instead calling them “Palestinian Arabs,” which the author concedes is not necessarily used by the Bedouins in describing themselves). For the
purposes of this Note, when “Bedouin Israelis” or “Bedouins” are mentioned, the terms
refer particularly to the Negev (Southern Israeli) Bedouin as opposed to their Northern
Israeli counterparts. Having similar customs in general, the two are distinguishable most
notably due to the fact that Bedouin of the Negev are much less integrated into Israeli
society, in part due to their remote location in the Negev desert. See MADRELL, supra
note 4, at 4.
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day Israel are still considered the “nomadic other”11 both within Israeli
society and by many of their fellow Arabs.12
From their beginnings, the Bedouins were nomadic, desert-dwelling
tribesmen who made a living as shepherds of camels and sheep.13 When
the United Nations partitioned British Palestine in 1947,14 approximately
90,000 Bedouins15 were already living in the area that was to ultimately
become modern-day Israel.16 As opposed to other Bedouin tribes in Middle Eastern and North African countries, Israeli Bedouin are an ethnic
minority “with a distinct character and unique customs.”17 One logical
side effect of the continued growth of the State of Israel in the 1950s was
the need for more land for the agricultural development of the nascent
Jewish State and the settlement of its people.18 This need was often fulfilled through executive policies19 of land expropriation20 designed to
11. Ronen Shamir, Suspended in Space: Bedouins Under the Law of Israel, 30 LAW &
SOC’Y REV. 231, 232 n.2 (1996).
12. MADRELL, supra note 4, at 3 (“[The Bedouin] are looked down upon by Jewish
Israelis and other Palestinians alike as primitive . . . . The Bedouin of the Negev are truly
a minority twice over.”).
13. ISSACHAR ROSEN-ZVI, TAKING SPACE SERIOUSLY: LAW, SPACE AND SOCIETY IN
CONTEMPORARY ISRAEL 75 (2004).
14. G.A. Res. 181 (II), at 131, U.N. Doc. A/519 (Nov. 29, 1947).
15. Although population statistics from that era are speculative at best, the number of
Bedouins in the partitioned territory under Israeli control was estimated in a report to the
General Assembly on September 3, 1947. U.N. Special Comm. on Palestine [UNSCOP],
Report to the General Assembly, U.N. GAOR, 2d Sess., Supp. No. 11, at 102, U.N. Doc.
A/364 (Sept. 3, 1947).
16. Madrell posits that, prior to the 1947 partition, there were anywhere from 65,000
to 95,000 Bedouin in the Negev, with that number falling to fewer than 13,000 by 1951.
MADRELL, supra note 4, at 6.
17. ROSEN-ZVI, supra note 13, at 76.
18. See Rangwala, supra note 5, at 438 (“The Negev represents a great mass of land
available for future settlement and is prized for that reason above all others.”). See also
MADRELL, supra note 4, at 7 (discussing the harsh rule under military government, probably due to the fact that “Israeli authorities were especially anxious to populate the Negev
with Jews”).
19. See Shamir, supra note 11, at 236 (discussing the Israeli government policies that
emphasized the Negev as empty and the Bedouin nomads as “part of nature,” resulting in
the official narratives that the Negev is “an empty space that awaits Jewish liberation”
and the Bedouins are a “nomadic culture that awaits civilization”).
20. For a general discussion on this issue, see HUSSEIN ABU HUSSEIN & FIONA
MCKAY, ACCESS DENIED: PALESTINIAN LAND RIGHTS IN ISRAEL (2003); George E. Bisharat, Land, Law, and Legitimacy in Israel and the Occupied Territories, 43 AM. U. L. REV.
467 (1993); Alexandre (Sandy) Kedar, The Legal Transformation of Ethnic Geography:
Israeli Law and the Palestinian Landholder 1948–1967, 33 N.Y.U. J. INT’L L. & POL. 923
(2001).
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urge the Bedouins into urban settlements,21 effectively altering the very
bases of their economy22 and leaving them ostensibly dependent on the
administrative state for subsistence.23 Approximately 87% of the land
expropriated,24 and thereafter regarded as state owned, was located in the
Negev desert25 where Bedouins are still largely concentrated.26
Over the first few decades of its existence, as Israel developed into a
modern industrialized nation, the institutional discrimination27 against
Israeli Arabs, and in particular Bedouins, continued virtually unabated in
areas ranging from education,28 health care,29 water,30 and land rights31 to
21. See Shamir, supra note 11, at 231. Shamir quotes the Minister of Agriculture,
Moshe Dayan, as saying, “We should transform the Bedouins into an urban proletariat. . . .
Without coercion but with government direction . . . this phenomenon of the Bedouins
will disappear.” Id.
22. For a discussion of the changing socioeconomic conditions of the Bedouins in the
developing State of Israel, see AVINOAM MEIR, AS NOMADISM ENDS: THE ISRAELI
BEDOUIN OF THE NEGEV 18 (1998). See also MADRELL, supra note 4, at 20 (discussing the
remarkable change in the sources of livelihood for Arab Bedouins in Israel “from an almost entirely agricultural and pastoral community” in the 1940s and 1950s to “one overwhelmingly dependent on mainly unskilled wage labour” in the 1980s and beyond).
23. ROSEN-ZVI, supra note 13, at 55.
24. “By 1959 the State had expropriated 250,000 dunams [approximately 63,000
acres] from Bedouin Arabs in the Negev.” MADRELL, supra note 4, at 8.
25. HUSSEIN & MCKAY, supra note 20, at 39 (using the term “Naqab” desert, which is
the Arabic word for “Negev”).
26. See MADRELL, supra note 4, at 3.
27. See DAVID KRETZMER, THE LEGAL STATUS OF THE ARABS IN ISRAEL 117 (1990)
(discussing three interconnected modes of institutional discrimination often practiced
under the guise of discretionary administrative power: budgetary discrimination, resource
allocation, and implementation of laws).
28. “Schools in the government-planned settlements for beduin . . . still lag far behind
the standard of Jewish-Israeli education and have smaller budgets.” MADRELL, supra note
4 at 16.
29. See id. at 17 (citing an independent Israeli survey conducted in 1983 that concluded the Negev Bedouin receive medical care “below the minimum standard to which
every citizen is entitled”). See also Rangwala, supra note 5, at 422–23 (discussing higher
infant mortality rates among Bedouin and positing that “both the accessibility of health
care services and the quality of care available to Bedouin living in both the townships and
unrecognized villages remains grossly inadequate”).
30. See MADRELL, supra note 4, at 12–13 (“Except the few who got some irrigated
land as compensation after 1980, beduin farmers do not get water allocations.”).
31. See Kedar, supra note 20, at 924 (discussing the Israeli legal system, “which by
transforming land possession rules in ways that undermined the possibilities of Arab
landholders to maintain their possession, brought about the transference and registration
of ownership of this land to the Jewish State”). See also MADRELL, supra note 4, at 12
(“The Jewish settlements can lease land for up to [forty-nine] years . . . . Each year [the
Bedouin farmers] must reapply and are likely to receive different lands or even no lands
at all.”).
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herding and grazing rights.32 The Bedouin tribes were pressured to resettle within a military enclosure area33 in townships34 separated from Jewish Israeli settlements and cities, but still close enough for Bedouins to
work in the areas from which they were residentially segregated.35 The
rest of the Negev Bedouin population (i.e., those who did not move to the
government townships) lived in numerous villages unrecognized by the
State.36 These unrecognized villages provide even starker examples of
Israel’s disparate treatment of its Bedouin citizens, as “[t]he villages are
characterized by a lack of basic services, such as running water, electricity, telephone lines, paved roads, schools, and other public institutions.”37
Furthermore, since it is impossible for Bedouins in these villages to obtain building permits, many Bedouins continue to be indicted every year
for “illegal” construction activity, and the Israeli government has slated
innumerable houses for demolition.38 These legal obstacles cast the Bedouin as interlopers in their own homes.39 Additionally, in order to put a
positive legal veneer on its policy of land acquisition, the Israeli legislature passed a series of laws that, in both practice and effect, serve to legitimize the resettlement of the Negev Bedouin population.40
This policy of state-sponsored sedentarization has resulted in modernday Bedouins becoming “the most socially, politically and economically
disadvantaged segment of the [Arab] Minority in Israel.”41 In crafting a
32. See id. at 13. See also Rangwala, supra note 5, at 442–43 (discussing the Plant
Protection Law of 1950 that required “Bedouin shepherds to get a permit from the ministry of agriculture to graze their goats” on certain lands and noting the consequential
dwindling of Bedouin flocks).
33. The enclosure area consisted of roughly ten percent of the land that was previously inhabited exclusively by the Bedouin community. Rangwala, supra note 5, at 420.
34. Ar’ara, Houra, Kuseifa, Laqiah, Rahat, Segev-Shalom, and Tel-Sheva. ROSENZVI, supra note 13, at 46.
35. Id.
36. For a general discussion of these so-called “unrecognized villages,” see HUSSEIN
& MCKAY, supra note 20, at 255–81.
37. Rangwala, supra note 5, at 421.
38. See Shamir, supra note 11, at 246–47.
39. See Rangwala, supra note 5, at 435.
40. Two laws in particular enabled the Israeli government to redefine the nature of
property ownership in the area and utilize land newly defined as “abandoned” for predominantly Jewish settlement interests. Land Acquisition (Validation of Acts & Compensation) Law, 5713-1953, 7 LSI 43 (1952–1953) (Isr.); Absentees’ Property Law, 5710-1950,
4 LSI 68 (1949–1950) (Isr.). For an in-depth discussion of the Absentees’ Property Law
and its repercussions on Israel’s Arab population in general, see Bisharat, supra note 20,
at 512–14. For a more detailed look at both of these laws, as well as others on point, and
their effects on the Bedouin population of the Negev in particular, see Rangwala, supra
note 5, at 439–49.
41. Rangwala, supra note 5, at 416–17.
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possible future solution to this past and present-day inequity, it is imperative, therefore, to survey domestic Israeli legislation that has enabled this
unfairness to occur in the past as well as Israel’s international legal
commitments that should prevent it from continuing in the future.
II. SEPARATE AND UNEQUAL: DOMESTIC ISRAELI LEGAL SOURCES FOR
BEDOUIN RIGHTS
In order to elucidate the responsibilities Israel has to its citizens, one
must first have a basic understanding of the complex structure of Israeli
law. Israel has no written constitution, so the domestic rights granted its
citizens must be gleaned from other sources, specifically the Declaration
of the Establishment of the State of Israel and the Law of Return, the
judicial case law of the Israeli Supreme Court, and the Basic Laws
promulgated by the Knesset, Israel’s parliament.
A. The Declaration and the Law of Return
The Declaration of the Establishment of the State of Israel provides:
“The State of Israel . . . will be based on freedom, justice and peace . . .
[and] it will ensure complete equality of social and political rights to all
its inhabitants irrespective of religion, race or sex.”42 At first glance, it
seems rather clear that the drafters of the Declaration intended complete
equality to mean just that. Soon after the creation of the State, however,
the Knesset passed a law that seemingly contradicts this idea of complete
equality. In 1950, the Knesset promulgated the Law of Return, which
gives every Jew born in or immigrating to Israel the right to Israeli citizenship.43 This law was not merely a public relations campaign for Jewish immigration in the 1950s. It was, and remains to this day, the legislative embodiment of the very idea of a Jewish State, acknowledging the
most basic principle of Zionist ideology44—the inextricable link between
the Jewish Diaspora and the Jewish State.45 Still, this raises questions of
how this law, which clearly grants preferential treatment to Jews as op42. Declaration of the Establishment of the State of Israel, 5708-1948, 1 LSI 3, (1948)
(Isr.) [hereinafter Declaration].
43. Law of Return, 1950, 51 S.H.159. (“Every Jew has the right to come to this country as an oleh [Jewish immigrant to Israel].”).
44. Zionism is a modern political ideology that developed in Europe in the eighteenth
and nineteenth centuries. The main ethos of Zionism is the founding and cultivation of a
Jewish State in biblical Canaan to serve as a homeland for the Jewish populations of all
nations. For a detailed discussion of the rise of Zionism and its most basic principles, see
WALTER LAQUEUR, A HISTORY OF ZIONISM (1976).
45. KRETZMER, supra note 27, at 18. The term “Diaspora” refers to those Jews who
live outside of the land of Israel.
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posed to citizens of any other religion, can coexist with the principle of
complete equality that the Declaration mentions.
While equality is clearly an important principle at the heart of Israeli
law, it is not without limitation.46 First, the term itself is hard to define,
as it signifies a dynamic idea that depends on unique factors in a given
society. As societal values and attitudes change, so too must the conception of what equality entails.47 Second, like any principle of Israeli constitutional law,48 equality is “subordinate to the supremacy of [Knesset]
legislation.”49 Hence, if a conflict arises between the principle of equality
from the Declaration and the plain meaning of a Knesset statute, the statute is dispositive.50
B. Judicial Law
The Israeli judiciary has identified equality as an important, albeit unwritten, constitutional principle.51 Additionally, the Israeli Supreme
Court reasoned that the principle of equality should be given special status due to the unique historical experience of the Jewish people:
When we were exiled from our country and removed from our land we
became victims of the nations of the world among whom we lived, and
46. See HUSSEIN & MCKAY, supra note 20, at 281 (discussing the weak status of
equality in Israeli law in regard to competing policy considerations). See also KRETZMER,
supra note 27, at 11 (discussing the principle of equality in Israeli law as a “soft legal
principle” that cannot overcome “contrary provisions in primary legislation”).
47. As an anecdotal example from American history, although equality is an integral
concept in both the Declaration of Independence and the U.S. Constitution, it took almost
200 years for that equality to be implemented for African Americans.
48. The term “constitutional law” is purposefully not capitalized here and throughout
this Note, as it does not relate to laws of a particular constitution, rather the body of laws
that constitute the general legal apparatus of the State of Israel.
49. KRETZMER, supra note 27, at 77.
50. Id. at 8. (citing HCJ 10/48 Zeev v. Gubernik, [1948] IsrSC 85(1) 89 (holding that
the Declaration is not a “Constitutional law which determines the validity or invalidity of
ordinances and statutes”).
51. See HUSSEIN & MCKAY, supra note 20, at 281 (citing HC 953/87 Poraz v. Mayor
of Tel Aviv, [1988] IsrSC 42(2) 309. The High Court held that public authorities must
give “reasonable weight” to the principle of equality and seek to find alternative ways,
congruent with the principle of equality, to achieve the ends of the particular policy
sought. The court reasoned further that the test for whether a public authority had in fact
acted in a discriminatory fashion was comprised of three elements: (1) the authority must
present evidence that it considered the infringement upon the principle of equality; (2) the
authority must show that it evaluated the competing considerations and gave “reasonable
weight” to equality; and (3) after balancing the competing considerations, the authority
had come to the conclusion that there was no other way to effect the particular policy
choice. Id.
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throughout the generations we tasted the bitterness of persecution, oppression and discrimination merely because we were Jews. . . . Given
this sorrowful experience, which deeply affected our national and human consciousness, it is to be expected that we will not adopt these aberrant ways of the nations of the world, and now that our independence
has been renewed in the State of Israel we must be careful to prevent
any hint of discrimination towards any law-abiding non-Jew among us
who wishes to live with us in his own way, according to his religion
and belief. . . . We must exhibit a human and tolerant attitude . . . and
maintain the great rule of equality in rights and obligations between all
persons.52
The court draws a direct connection between the historical sufferings of
the Jewish people and an affirmative duty to treat all inhabitants of the
modern State of Israel with the humanity and dignity that the founders of
the State sought for themselves.53 Accordingly, the Israeli Supreme Court
has asserted that “discrimination on grounds of religion or race will be
regarded as improper use of administrative discretion, even if that discretion is absolute,”54 and that the construction of statutory language must
further the principle of equality under the law.55
In the spring of 2000, the Israeli Supreme Court decided a case called
Qa’adan v. Israeli Lands Administration, where it held that the State is
forbidden from utilizing national institutions to carry out actions on its
behalf that have discriminatory purpose or effect.56 In this case, a Bedouin family challenged the administration’s refusal to allow them to
purchase a home in Katzir on the grounds that Katzir only accepted Jewish residents.57 The court found that state discrimination based on nationality, overt or otherwise, was illegal and that the State could not circumvent this prohibition by delegating land allocation authority to institutions that then allocate the land in a discriminatory fashion.58 That
same year, in a landmark decision on equality rights vis-á-vis Israeli
Arab minorities, the court clearly stated that “[t]he resources of the State
. . . belong to all citizens and all citizens are entitled to enjoy them ac52. KRETZMER, supra note 27, at 9. (citing CA 56/71 Emma Berger v. Dist. Planning
Comm. [1972] IsrSC 27(2) 764, 771).
53. Id.
54. Id. (citing CA 16/61 Registrar of Companies v. Kardosh [1961] IsrSC 16(1) 1209,
1224).
55. See id. (citing HC 707/81 Abu-Hatzeira v. Attorney Gen. [1981] IsrSC 35(4)
561).
56. Rangwala, supra note 5, at 427 (citing HCJ 6698/95 Qa’adan v. Israeli Lands
Admin. [2000] IsrSC 54 (1) 258).
57. Id.
58. Id.
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cording to the principle of equality, without discrimination, based on religion, race, sex or other prohibited consideration.”59
C. Basic Laws
Instead of delineating certain fundamental rights and liberties in a constitution, the founders of Israel decided to empower the Knesset to enact
a series of “Basic Laws”60 that would form, along with regular substantive Knesset legislation and decisions of the judicial courts, the foundation and backbone of modern Israeli law.61 In 1992, paralleling the reasoning of its judicial counterparts, the Knesset passed two Basic Laws
that signified a “first step towards entrenching certain fundamental rights
and freedoms in Israel.”62 Prior to the promulgation of these Basic Laws,
the Israeli High Court of Justice did recognize certain rights as fundamental.63 The court also ruled that the Basic Laws have constitutional
significance giving greater force to their various provisions.64 The practical significance of this ruling, in light of the lack of a single constitutional document guaranteeing fundamental rights, is that the Basic Laws
59. Id. at 427 n.69 (citing HCJ 1113/99 Adalah v. Minister of Religious Affairs
[2000] IsrSC 54(2) 164, 165). Adalah, the Legal Center for Arab Minority Rights in
Israel, challenged the legality of two budget provisions that allocated funding exclusively
for Jewish cemeteries. Ruling in favor of the petitioners, the court specifically noted the
Ministry’s failure to point to any reasonable justification for the budget discrepancy. For
more information on this case in particular, as well as other cases on point, see Adalah,
http://www.adalah.org/eng/legaladvocacyreligious.php (last visited Oct. 28, 2007).
60. Eleven Basic Laws have been enacted since 1948, mostly dealing with the institutional and administrative workings of the State. Basic Law: The State Comptroller, 1998,
S.H. 30; Basic Law: Jerusalem, Capital of Israel, 5740-1980, 34 LSI 209 (1980) (Isr.);
Basic Law: The Army, 5736-1976, 30 LSI 150 (1976) (Isr.); Basic Law: The State Economy, 5735-1975, 29 LSI 273 (1975) (Isr.); Basic Law: Israel Lands, 5720-1960, 14 LSI
48 (1960) (Isr.); Basic Law: The Judiciary, 5744-1984, 38 LSI 101 (1984) (Isr.); Basic
Law: The Government, 2001, S.H. 158; Basic Law: President of the State, 5724-1964, 18
LSI 11 (1964) (Isr.); Basic Law: The Knesset, 5718-1958, 12 LSI 85 (1958) (Isr.); Basic
Law: Freedom of Occupation, 1992, S.H. 114; Basic Law: Human Dignity and Liberty,
1992, S.H. 150.
61. For a general discussion on the makeup of Israeli law, see KRETZMER, supra note
27.
62. HUSSEIN & MCKAY, supra note 20, at 23.
63. See Aeyal M. Gross, The Politics of Rights in Israeli Constitutional Law, 3 ISRAEL
STUD. II 80, 83–84 (1998) (including the examples of freedom of speech, and more importantly for this discussion, equality).
64. CA 6821/93 United Mizrahi Bank, Ltd. v. Migdal Coop. Village [1993] IsrSC
49(4) 221.
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have become the bedrock of civil and human rights in the modern Israeli
legal structure.65
The tension between the Law of Return—“the sole Israeli Law that explicitly discriminates on the basis of ethnicity or national origin”66—and
the guarantees of equality in the Declaration and Basic Laws is evident.67
Civil liberties and civil rights, though perhaps not as ingrained and protected as in the American system, do play an important role in the Israeli
legal structure.68 Still, the existential conundrum persists: when the continued Jewish nature of the State is in direct conflict with principles of
equality, what is the outcome? This tension was illustrated vividly in a
case dealing with election candidates whose platform included advocating for the destruction of the State of Israel and denial of its sovereignty.69 The Israeli Supreme Court ruled that, short of clear legislative action
to the contrary, it could not bar them from running for office, with one
justice adding in dicta that the Jewish character of the State is a “fundamental constitutional fact.”70 The Knesset responded by amending the
Basic Law: the Knesset precluded from being considered eligible for
elections candidates who tried to negate “the existence of the State of
65. HUSSEIN & MCKAY, supra note 20, at 146 (discussing the Basic Laws, in comparison to other streams of Israeli law, as “the most entrenched kind possible in the Israeli
constitutional system”).
66. Bisharat, supra note 20, at 509 n.209.
67. See Concluding Observations of the Committee on Economic, Social, and Cultural Rights: Israel, 16, U.N. Doc. E/C.12/1/Add.90 (May 23, 2003) (“The Committee reiterates its concern that the excessive emphasis upon the State as a ‘Jewish State’ encourages discrimination and accords a second-class status to its non-Jewish citizens.”). See also
ROSEN-ZVI, supra note 13, at 2 (discussing an offshoot of the Law of Return that prohibits the State from extraditing Jewish citizens, ostensibly “collapsing the distinction between the notions of citizenship and ethnicity”).
68. KRETZMER, supra note 27, at 8 (discussing a line of Israeli Supreme Court cases
that held that basic civil rights, though largely not codified, exist as legal principles in
Israeli jurisprudence). This is further evidenced by the fact that the Constitution, Law and
Justice Committee of the Knesset has been working for years on drafting Israel’s written
constitution and plans to include such rights in the eventual draft: “[t]he proposed constitution will reiterate the state’s commitment to equal rights for all, including minorities.
The constitution will emphasize universal human rights, and forbid state discrimination
among its citizens on the basis of race, religion, or ethnicity.” Knesset Committee Debates on the Constitution for Israel, http://www.cfisrael.org//a134.html?rsID=89 (last
visited Oct. 28, 2007).
69. Id. at 24 (citing EA 1/65 Yardor v. Cent. Elections Comm. for the Sixth Knesset
[1965] 19(3) 365.
70. Id. at 24–25.
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Israel as the State of the Jewish people”71 or those who wished to incite
racism.72
Although Israel’s legal system is formally committed to equality, the
historical encroachments upon equality “reflect the ambiguity in the notion of Israeli nationhood”73 and cast existential uncertainty on the true
nature of Israel’s identity. On the one hand, Israel is a democratic State
belonging equally to all of its citizens, regardless of religion, race, or
sex.74 On the other hand—as the eponymous ancestor of the Jews—Israel
the people may lay claim to Israel the State as theirs and theirs alone.75
The coexistence of these two conceptions of statehood is of particular
significance to Bedouin Israelis76 as full-fledged citizens of a state that
technically belongs to someone else.77
In 1992, the Knesset promulgated the Basic Law: Human Dignity and
Liberty, which guarantees rights to dignity, life, freedom, privacy, and
property.78 Interestingly, missing from this Basic Law is any mention of
equality.79 This was remedied, in part, two years later when the Knesset
amended it to include “fundamental human rights . . . in the spirit of the
71. See Amendment No. 9 to section 7A of the Basic Law: The Knesset, 1985, S.H.
196, available at http://www.knesset.gov.il/laws/special/eng/basic2_eng.htm.
72. This part of the Amendment was utilized to preclude controversial Rabbi Meir
Kahane, known in Israel and the United States for his anti-Arab and racist viewpoints,
from running for Knesset elections. For a more detailed discussion of the case and its
ramifications, see KRETZMER, supra note 27, at 26–31.
73. Id. at 176.
74. Declaration of the Establishment of the State of Israel, 5708-1948, 1 LSI 3, (1948)
(Isr.)
75. See Rangwala, supra note 5, at 425–26 (The language of the Declaration itself
“defines the national character of the state as privileging one group, namely the Jewish
people. . . . Thus[,] as quickly as the principle of equality became an element of the Israeli state via its founding Declaration, it simultaneously became neutralized by its Jewish
characterization.”).
76. See id. at 430 (referring to the “system of unequal citizenship” experienced by the
Negev Bedouin).
77. See MADRELL, supra note 4, at 21 (“Many in the beduin community feel this anguish . . . and the consequent sense that as a community they are fully acceptable neither
to the nation they feel part of nor to the state they are citizens of.”).
78. Basic Law: Human Dignity and Liberty, 1992, S.H. 150, available at http://
www.knesset.gov.il/laws/special/eng/basic3_eng.htm.
79. For a discussion on the Basic Law: Human Dignity and Liberty and its shortcomings in granting complete equality, and even more interestingly, its usage in opposition to
its stated purpose, see HUSSEIN & MCKAY, supra note 20, at 23–24 (discussing Section 8
of the Basic Law: Human Dignity and Liberty, which allows certain laws that may be
facially discriminatory if they serve a “proper purpose” and “will be used to legitimize
laws that discriminate in favour of Jews,” preserving the character of Israel as a Jewish
State even at the expense of fundamental civil rights).
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principles set forth in the Declaration of the Establishment of the State of
Israel.”80 Although the inclusion of equality in Israel’s Basic Law: Human Dignity and Liberty is, at best, indirect, it “is no substitute for a direct provision, and the question must be asked why this principle [of
equality], which the Israeli high Court has said on a number of occasions
is a fundamental principle of Israeli law, was omitted.”81 The unanswered question of Israel’s domestic legal commitment to true equality
among its citizens leads one to look to other sources of substantive law,
specifically international law, to see whether Israel has more concrete
obligations to its Bedouin citizens.
III. GLOBAL PERSPECTIVES, LOCAL RESPONSIBILITY: ISRAEL’S
INTERNATIONAL LEGAL OBLIGATIONS
International law often provides a much sturdier basis than domestic
law for protecting the rights of indigenous peoples.82 In its infancy in the
seventeenth and eighteenth centuries, international law was understood
predominantly as a device for governing relations between nation
states.83 The role of individuals,84 unless acting as state representatives,
was relatively nonexistent under this rudimentary conception of international law.85 Perhaps the seminal moment in the development of modern
international law came in the aftermath of World War II with the establishment of the United Nations.86 The statute of the International Court of
Justice, which the Member States adopted along with the U.N. Charter
(“Charter”), discusses in the notes the sources of international law: treaty,
80. Amendment to Section 1 of the Basic Law: Human Dignity and Liberty, 1994
S.H. 90, available at http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm (last
visited Oct. 28, 2007).
81. HUSSEIN & MCKAY, supra note 20, at 25.
82. Id. at 33.
83. See ANAYA, supra note 2, at vii (discussing international law specifically in regard
to human rights, “which has moved international law away from an exclusively statecentered orientation”).
84. See Eric S. Kobrick, The Ex Post Facto Prohibition and the Exercise of Universal
Jurisdiction over International Crimes, 87 COLUM. L. REV. 1515, 1520–21 (1987) (citing
Hill, International Affairs: The Individual in International Organization, 28 AM. POL.
SCI. REV. 276 (1934) (describing the shift from state-centered international law and the
emergence of the view that individuals are subject to international law)).
85. See Marek St. Korowicz, The Problem of the International Personality of Individuals, 50 AM. J. INT’L L. 533, 537–39 (1956) (examining the shift toward recognition of
international personality of individuals, particularly in their claims of individual rights).
86. See generally ANAYA, supra note 2 (discussing the development of international
law through the lens of indigenous rights and the United Nations).
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custom, and general principles.87 Applied to Israel, each of these international law sources sheds light on the obligations Israel has to its Bedouin
minority, and together they instruct how Israel must act more fairly towards them in the future.
As a member of the United Nations, Israel has bound itself to numerous international treaties, including the Charter as well as the International Covenant on Civil and Political Rights (“ICCPR”)88 and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”).89
The protection of human rights and fundamental freedoms is one of the
main reasons behind the conception of the United Nations in the aftermath of World War II, as evidenced by Article 1 of the Charter, which,
inter alia, states that the purposes of the United Nations are
[t]o 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; [t]o achieve
international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language, or religion.90
Moreover, in Article 55, the Charter reiterates that one of its primary
functions is the promotion of “universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction as to
87. Statute of the International Court of Justice art. 38, June 26, 1945, 59 Stat. 1055,
33 U.N.T.S. 993. The Restatement (Third) of Foreign Relations Law of the United States
provides a more concise definition of international law:
(1) A rule of international law is one that has been accepted as such by the international community of states (a) in the form of customary law; (b) by international agreement; or (c) by derivation from general principles common to the
major legal systems of the world. (2) Customary international law results from
a general and consistent practice of states followed by them from a sense of legal obligation. (3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such
agreements are intended for adherence by states generally and are in fact widely accepted. (4) General principles common to the major legal systems, even if
not incorporated or reflected in customary law or international agreement, may
be invoked as supplementary rules of international law where appropriate.
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §102 (1987).
88. International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S.
171.
89. International Covenant on Economic, Social and Cultural Rights, Dec. 19, 1966,
993 U.N.T.S. 3.
90. U.N. Charter art. 1, paras. 2–3.
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race, sex, language, or religion.”91 This function is imputed to the Member States in that “[a]ll Members pledge themselves to take joint and separate action . . . for the achievement of the purposes set forth in Article
55.”92
Israel ratified the ICCPR and ICESCR on October 3, 1991.93 The
ICCPR94 includes numerous provisions that hold direct relevance to
Israel’s continued mistreatment of its Bedouin minority:
In no case may a people be deprived of its own means of subsistence.95
Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction
of any kind, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the
necessary steps, in accordance with its constitutional processes and
with the provisions of the present Covenant, to adopt such laws or other
measures as may be necessary to give effect to the rights recognized in
the present Covenant.96
Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his
residence.97
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.98
91. Id. art. 55(c).
92. Id. art. 56.
93. See Office for the U.N. High Commissioner for Human Rights, Ratification Page
for the ICCPR, http://www2.ohchr.org/english/bodies/ratification/4.htm (last visited Oct. 28,
2007); Ratification Page for the ICESCR, http://www2.ohchr.org/english/bodies/ratification/
3.htm (last visited Oct. 28, 2007).
94. For a detailed discussion of the ICCPR, see MELISSA CASTAN, SARAH JOSEPH &
JENNY SCHULTZ, THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS:
CASES, MATERIALS AND COMMENTARY (2004).
95. ICCPR, supra note 88, art. 1(2).
96. Id. art. 2(2)–(3).
97. Id. art. 12(1).
98. Id. art. 26.
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Within this broad framework it is absolutely clear that Israel’s policy of
resettlement for the Bedouin of the Negev after 1948 and its continued
governmental actions99 in perpetuating this initial policy violate the principles set forth in the ICCPR.100 While it could be argued that Israeli Supreme Court decisions, discussed supra, fulfill the obligation to “take the
necessary steps . . . to adopt such laws . . . as may be necessary to give
effect to the rights recognized”101 within the ICCPR, it is evident that the
effects of past discriminatory policies still weigh heavily on the civil102
and political rights103 of the Bedouin Arab minority and, therefore, much
more needs to be done in order for Israel to fulfill its obligations under
the ICCPR.
The ICESCR also provides rights that elucidate the international legal
obligations that Israel must abide by in its dealings with its Bedouin Arab
population.104 First, Article 11(1) states:
The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate
steps to ensure the realization of this right, recognizing to this effect the
essential importance of international co-operation based on free consent.105
Two issues arise out of this language, first, the right to adequate housing106 and, second, the idea of free consent in the realization of this right.
As discussed above, the idea of free consent can hardly be reconciled
with Israel’s post-1948 policy of Bedouin resettlement in townships
within the enclosed military zone.107 In terms of adequate housing, besides the fact that Bedouin settlements are clearly substandard in compar99. See supra notes 27–32 and accompanying text (discussing the various discriminatory effects of Israeli policy toward its Bedouin minority).
100. In resettling the Negev Bedouin population in townships that lack adequate infrastructure, irrigation, and basic services, the Bedouin population is in effect “deprived of
its own means of subsistence,” and is deprived of its “right to liberty of movement and
freedom to choose [its] residence,” as set forth in the ICCPR. ICCPR, supra note 88, arts.
1(2), 12(1).
101. ICCPR, supra note 88, art. 2(2).
102. See generally HUSSEIN & MCKAY, supra note 20.
103. See generally MADRELL, supra note 4.
104. See Rangwala, supra note 5, at 454 (“As a party to the ICESCR, Israel is bound
by its terms, and obligations under it should be reflected in Israel’s domestic policy.”).
105. ICESCR, supra note 89, art. 11(1).
106. For a general discussion of the adequacy of housing for the Negev Bedouin, see
Rangwala, supra note 5.
107. See supra notes 33–35.
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ison to Jewish settlements of similar size and location,108 there is also a
more disturbing undercurrent at play since the lack of adequate housing
can substantially diminish the realization of other fundamental rights (including those set forth in the ICCPR).109 Israel has also not fulfilled its
obligations under Article 12 of the ICESCR110 to reconcile discrepancies
in providing proper health care to Negev Bedouin communities.111 Given
that Israel is a signatory to these treaties, it is abundantly clear that it has
an international legal responsibility, not just a moral or ethical imperative, to actively remedy its treatment of the Negev Bedouin.
Customary international law also imposes international legal obligations upon Israel regarding its conduct toward Bedouin Arabs. The
strongest such evidence is found in the U.N. Universal Declaration on
Human Rights (“Universal Declaration”).112 The Universal Declaration is
commonly considered a reliable expression of customary international
law113 and has been deemed so by Israeli courts.114 Article 7 secures the
right to equal protection under the law, 115 and Article 8 grants the right
to an “effective remedy” for the violations of the fundamental rights that
the Universal Declaration guarantees.116 Israel’s history in relation to its
108. See generally MADRELL, supra note 4
109. See Rangwala, supra note 5, at 454 (“For example, it may be impossible to maintain the right to security of person, public assembly, or education where the right to adequate housing is compromised.”).
110. ICESCR, supra note 89, art. 12 (“The State Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 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: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy
development of the child.”).
111. See MADRELL, supra note 4, at 17 (“Beduin children in the Negev have a higher
rate of hospitalization than their Jewish counterparts. A third of Negev Beduin children
are hospitalized at least once in their first year . . . [and many] infants also suffer malnutrition and consequently stunted growth.”).
112. Universal Declaration of Human Rights, G.A. Res. 217A, art. 27(2), U.N. GAOR,
3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 10, 1948) [hereinafter Universal Declaration].
113. HUSSEIN & MCKAY, supra note 20, at 34.
114. Id.
115. Universal Declaration, supra note 112, art. 7 (“All are equal before the law and
are entitled without any discrimination to equal protection of the law. All are entitled to
equal protection against any discrimination in violation of this Declaration and against
any incitement to such discrimination.”).
116. Id. art. 8 (“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by
law.”).
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treatment of Bedouin Arabs117 at best disregards and at worst defies the
substantive guarantees of Articles 7 and 8 of the Universal Declaration.
Furthermore, Article 17(2) states that “[n]o one shall be arbitrarily deprived of his property.”118 Israel’s policies of land expropriation119 after
the establishment of the State in 1948, as well as its continued demolition
of Bedouin houses,120 can certainly be viewed as arbitrary deprivation of
property in stark violation of the Universal Declaration. Article 22121 “articulates an overarching emphasis on the right to human development,
and integrates all branches of human rights (civil, political economic,
social, cultural) within the rubric of greater human development.”122 Accordingly, Israel must consider how its treatment of the Bedouin Arab
minority fits within this framework, and must not only redress specific
incidents of human rights abuses, but also align its legislative, judicial,
and executive policies with the goal of “greater human development.”123
In addition, Israel’s legal obligations under customary international law
can be inferred from the text of the Wye River Memorandum (“Memorandum”),124 which delineates responsibilities for Israel and the Palestine
Liberation Organization in their ongoing peace talks. Although the Memorandum is just a small link in the seemingly unending chain of backand-forth “peace agreements,”125 one of its provisions is especially relevant to the rights of Bedouin Arabs. As a requisite condition for Israel’s
agreeing to transfer nature reserve land to the Palestinians in Gaza, the
Palestinian side agreed not to change “the status of these areas, without
prejudice to the rights of the existing inhabitants in these areas, including
Bedouins.”126 It is ironically telling that in its negotiations with an entity
that has been its enemy for decades, Israel made a point of including the
protection of Bedouin rights. Although anecdotal, it can be inferred from
117. See supra Part II.B.
118. Universal Declaration, supra note 112, art. 17.
119. See supra notes 19–20 and accompanying text.
120. See, e.g., infra note 140.
121. Supra note 112, art. 22 (“Everyone, as a member of society, has the right to social
security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the
economic, social and cultural rights indispensable for his dignity and the free development of his personality.”).
122. Rangwala, supra note 5, at 452–53.
123. Id.
124. Wye River Memorandum, Oct. 23, 1998, 37 I.L.M. 1251.
125. For evidence of the constant cycle of peace talks, one need only look at any daily
newspaper on any given day, and the odds are strong that there will be some talk of the
never-ending struggle for “peace in the Middle East.”
126. See supra note 124.
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this Memorandum that Israel sees the rights of Bedouin Arabs as worthy
of protection, notwithstanding its own failure to do so over the last sixty
years.127 If Israel expects its enemies to treat Bedouin Arabs responsibly,
it should follow both logically and ethically that it bears the same responsibility to its own Bedouin citizens.
IV. STRANGERS IN A STRANGE LAND: RESPONSIBILITIES TO “OTHERS”
128
IN JEWISH LAW
Beyond the classical examples of international law discussed above,
Israel’s legal obligations can also be inferred from what perhaps can be
described as one of the first systems of “international law”—Jewish
law.129 If, in fact, Israel is to be considered a Jewish State130 as opposed
to a completely egalitarian democracy, its conduct should, at the very
least, be in line with the tenets and teachings of Jewish law.
The legal status of the “other” in Israel is founded in the Bible “upon
the special protection and love of the God of Israel for the stranger.”131
This special status is embodied by the divine command to “befriend the
stranger, for you too were strangers in the land of Egypt.”132 Beyond
general pronouncements, the Torah133 further lays down specific rules
regarding the treatment of strangers by the people of Israel, illustrating
“the degree to which Judaism has been willing to include the non-Jew
within the framework of a Jewish society governed by universally applicable rules of ethical conduct.”134 Understandably, not all of Jewish law
was applied to those who were not followers of the religion, but still “the
Torah nevertheless took care to grant them special protection and to
127. See supra note 117.
128. Special thanks to Rabbi Aaron Brusso for his help in researching and conceptualizing the arguments for this section of the Note.
129. See Joseph Levi, Stranger, in CONTEMPORARY JEWISH RELIGIOUS THOUGHT:
ORIGINAL ESSAYS ON CRITICAL CONCEPTS, MOVEMENTS, AND BELIEFS 917, 919 (Arthur A.
Cohen & Paul Mendes-Flohr eds., 1987) (discussing Judaism’s conception of its own
laws as having a “universal mission”). Furthermore, it can be argued that Jewish law is
international in scope, since it has been followed by its adherents over thousands of years
wherever in the world they may happen to reside.
130. Recently, Israeli Prime Minister Ehud Olmert stated unequivocally that the precondition for any and all peace negotiations with the Palestinians is their recognition of
Israel as first and foremost a “Jewish State.” See Barak Ravid, Erekat: Palestinians Will
Not Accept Israel as ‘Jewish State,’ HAARETZ, Nov. 12, 2007, available at http://www.haaretz.
com/hasen/spages/923076.html.
131. Levi, supra note 129, at 918.
132. Deuteronomy 10:19.
133. This is the Hebrew word for the Jewish bible.
134. Levi, supra note 129, at 918.
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equalize their legal status with that of the Jewish majority.”135 Specifically, the Torah seeks to ensure that the stranger is not oppressed136 and
prohibits the perversion of justice where the rights of the stranger are
concerned.137 This protection of the stranger’s rights in Jewish law is also
evidenced by modern thinkers who discern “a similar message of civil
egalitarianism in the attitude of the laws of the Torah regarding the
[stranger].”138
While one could certainly argue that the rules of religious law have no
relevance to the conduct of modern Israel towards its Bedouin minority,
what is clear from the development of Jewish law throughout the ages is
that it is “no longer theological principles that are central, but rather social and legal principles, such as equality before the law, which are
drawn from humanistic philosophy and whose precursors are now seen in
the ancient laws of the Bible.”139 Accordingly, Israel has a clear legal and
ethical obligation, rooted in the traditions of the Bible and developed by
subsequent social, philosophical, and legal thought, to treat the “strangers” in its land with the same decency and respect it presently reserves
exclusively for its Jewish citizens. Moreover, this makes the existential
question of Israel’s continued viability—is it a Jewish State or a true democracy?—inapposite in the context of Bedouin rights, for no matter
which principles govern (i.e., religious or democratic) the outcome
should be the same.
V. ALMOST HOME: THE PRESENT AND FUTURE OF BEDOUIN RIGHTS IN
MODERN ISRAEL
Unfortunately, the maltreatment of Bedouin Arabs in Israel continues
to this day.140 The Israeli government continues its policy of forced evacuations and home demolitions in Bedouin villages in order to pave the
way for more Jewish settlements in the Negev region.141 Perhaps even
more disturbing is the fact that the domestic legal remedies for Israel’s
violation of Bedouin rights seem, at best, hard to come by and, at worst,
135. Id. (citing Leviticus 19:33–34).
136. Exodus 22:21.
137. Deuteronomy 24:17.
138. Levi, supra note 129, at 923 (discussing the opinions of heralded philosophical
minds like Martin Buber and Leo Baeck).
139. Id. at 924.
140. See International Human Rights Day, Dec. 10, 2007, http://adalah.org/eng/hrw.php.
141. Id. (“In order to establish . . . three new Jewish communities, the state is using
multiple means and procedures to evacuate the entire Arab Bedouin population of AtirUmm al-Hieran, including filing lawsuits to evict them and requests for demolition orders
against their homes to the courts.”).
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unenforceable.142 Even if the Bedouins could appeal to the highest international legal bodies and raise causes of actions relating to Israel’s obligations under the various treaties and conventions to which it is a signatory,143 it is unclear what effect, if any, such appeals would have on
Israeli conduct.144 Although organizations like Adalah145 exist for the
purpose of protecting and defending the rights of Arab minorities in
Israel,146 the fight for equality will clearly continue to be one fraught
with ineffectiveness and frustration.147
But there is hope, albeit somewhat dim. As discussed above,148 the
Constitution, Law and Justice Committee of the Knesset is continuing to
negotiate a draft of Israel’s written constitution and has said that it intends to “reiterate the state’s commitment to equal rights for all, including minorities.”149 Contrary to this claim, however, the head of the Constitution, Law and Justice Committee, Menahem Ben-Sasson, recently
admitted that the constitution now taking shape in the committee is likely
to weaken, not strengthen, the rights of Israeli minority groups, including
the Bedouins.150 If this were the case, it would fly in the face of what is
arguably the “primary role of a constitution in a democratic state—
protecting minority rights by anchoring them in the constitution”151 so
that the executive, legislative, and administrative branches of government cannot infringe upon these rights. Furthermore, the president of the
Israeli Bar Association recently remarked that the requisite function of a
142. See id. (“Despite court orders to freeze the home demolitions requested by Adalah, the Israel Lands Administration demolished some houses in June 2007 leaving many
families homeless.”).
143. See supra notes 88–89.
144. There are many examples of U.N. Resolutions that have tried to change the state
of affairs in the region, with little or no success (too many to list here). Also, if Israeli
court orders are not followed by the administrative bodies performing the evacuations
and the demolitions, it would be highly unlikely that an outside tribunal’s decision would
carry much weight either.
145. Adalah, The Legal Center for Arab Minority Rights in Israel, www.adalah.org
(last visited Sept. 29, 2008).
146. See supra note 140 (“Adalah is . . . representing village residents in lawsuits challenging all these [demolition and evacuation] orders, and is demanding an investigation
and disciplinary proceedings against those responsible for the illegal demolitions.”).
147. Id. (discussing continued evacuations, segregation, and other quasi-legal mechanisms that only further entrench Bedouin inequality).
148. See Knesset Committee Debates on the Constitution for Israel, supra note 68.
149. Id.
150. Yuval Yoaz, Head of Knesset Panel Admits Draft Constitution Liable to Weaken
Rights of Gays and Other Minorities, HAARETZ, Oct. 22, 2007, http://www.haaretz.com/
hasen/spages/915321.html.
151. Id.
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constitution is “to protect weak sectors of the population” and that the
price of a constitution “cannot be paid at the expense of minority groups
within the population.”152
As is so often the case in the region, as soon as one has reason to hope
for progress (i.e., a constitution granting unalienable minority rights)
something happens to dampen that hope (i.e., the head of the committee
admitting minority rights are not the paramount consideration in the
drafting process and may not even factor in at all in the final document).
In order to begin to find a solution to the inherent inequality of Bedouin
Arabs in Israel, the first step is for Israel to cease requiring recognition of
Israel as a Jewish State as a precondition for peace talks.153 This prerequisite, which may seem elementary to its proponents, speaks to the heart
of the problem faced by the Bedouins in modern Israel: they are secondclass citizens in a democratic state that should grant them full and equal
rights, but chooses not to. The second step is to finish the drafting of a
truly democratic and egalitarian constitution that guarantees, explicitly
and unequivocally, the unalienable right to equality of all Israel’s inhabitants. The final step is to recognize the shortcomings of the past and recommit to making positive and proactive institutional changes so that
Israel will be a home for all its citizens, regardless of classifications such
as Jew, Palestinian, or Bedouin.
CONCLUSION
Israel has numerous obligations under international law to treat all of
its citizens with the same amount of decency and respect that it affords to
its Jewish citizens. Moreover, the treaties and conventions to which it has
committed place an affirmative duty upon the government of Israel to
remedy its historical maltreatment of its Bedouin minorities and safeguard their rights in the years to come. Moreover, even Jewish law requires better treatment of Bedouin minorities than what they experience
at present. If Israeli leaders, as they are constantly claiming in the media,
are truly interested in forging a lasting peace in the region, it is incumbent upon them to clean up their own house, before extending the olive
branch to their neighbors. The political, intellectual, and academic elite
in Israel must actively make their voices heard and declare that “not all
who wandered should be lost,”154 in calling for Israel to fulfill its international legal obligations in granting full economic, social, and political
152. Id.
153. See Ravid, supra note 130.
154. See supra note 1 and accompanying text.
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rights to all Israeli citizens—then, and only then, will Bedouin Israelis
truly be nomads no more.
Yehuda Gruenberg*
* B.A., Philosophy and B.A., Judaic Studies, Binghamton University (2000), J.D.
Brooklyn Law School (expected 2009). I am profoundly grateful to my Ima and Abba,
Jack and Sandy Gruenberg, who instilled within me early on that life is not about being
good, but about doing good. Thank you to my siblings, Hana, Josh, and Hillel who are
my biggest supporters and best friends, and without whom I would be lost. Thank you to
Aaron and Elissa for bringing joy into my life, in the form of Sari, Zoe, Ilan, Sam, and
Kayla. I am very thankful and fortunate to have Orlee in my life—her patience and positivity are constant examples of how love can truly overcome any and all obstacles. This
Note is dedicated to two men whose names I share: Uncle Jules, who bequeathed to me
his fervent love of Israel, and 'Uda, the Bedouin father from Ein Gedi who welcomed me
into his tent, shared his story with me and with whom I share not only a name, but also a
hope for a brighter future.
INTERNATIONAL CHILD LABOR
REGULATION 101: WHAT CORPORATIONS
NEED TO KNOW ABOUT TREATIES
PERTAINING TO WORKING YOUTH
INTRODUCTION
T
he decision in Roe v. Bridgestone Corp.1 has signaled that transnational corporations2 (“TNCs”) that have sufficient minimum contacts with the United States3 may be subject to liability in U.S. courts for
international child labor violations committed abroad. This liability may
arise under the Alien Tort Statute4 (“ATS”), which allows aliens to bring
claims in U.S. courts for torts in violation of an international treaty or the
law of nations.5 In Bridgestone, Liberian workers alleged6 that their corporate employer7 at the Firestone rubber plantation near Harbel, Liberia,8
encouraged or even required them to put their children to work in order
to meet extremely high production quotas.9 At the plantation, children as
young as six years old allegedly tapped raw latex from rubber trees, ap1. Roe v. Bridgestone Corp., 492 F. Supp. 2d 988 (S.D. Ind. 2007).
2. As used in this Note, “transnational corporation” means a business entity that
operates in at least two countries. Seventy-eight thousand TNCs and their 780,000 foreign affiliates account for one-third of world exports and the equivalent of ten percent of
the world’s gross domestic product. U.N. CONF. ON TRADE & DEV., WORLD INVESTMENT
REPORT 2007: TRANSNATIONAL CORPORATIONS, EXTRACTIVE INDUSTRIES AND DEVELOPMENT, at xvi, U.N.Doc. UNCTAD/WIR/2007, U.N. Sales No. E.07.II.D.9 (2007).
3. See WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (holding that the forum state may not exercise in personam jurisdiction over a defendant that
did not establish minimum contacts with the state).
4. Alien Tort Statute, 28 U.S.C. § 1350 (2000).
5. Id.
6. The plaintiffs asserted claims under the ATS, Thirteenth Amendment, California
law, and 18 U.S.C. § 1595 (a federal statute authorizing civil actions for criminal forced
labor violations), but these claims were dismissed. Bridgestone Corp., 492 F.Supp. 2d at
1024.
7. Bridgestone Corporation is headquartered in Japan and, along with its consolidated subsidiaries, is the world’s largest manufacturer of tires and rubber products.
BRIDGESTONE GROUP, 2007 ANNUAL REPORT 1, 79 (2008).
8. Harbel, Margibi County is situated about thirty-seven miles from Monrovia, the
capital of Liberia. U.N. MISSION IN LIBERIA, HUMAN RIGHTS IN LIBERIA’S RUBBER
PLANTATIONS: TAPPING INTO THE FUTURE 20, 72–73 (2006).
9. According to the pleadings, workers at the Firestone plantation cut rubber trees
with a machete to allow the raw latex to drip into cups mounted on the trees, collected the
latex from the cups into buckets, and brought the latex to the collection location carrying
two, seventy-five-pound buckets at a time. To earn a daily wage equivalent to $3.19, a
worker must collect latex from 1125 trees. Bridgestone Corp., 492 F.Supp. 2d at 991,
994.
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plied pesticides to the trees without any protective equipment, and performed other “back-breaking” work.10 The employer moved to dismiss
for failure to state a claim, but the court denied the motion and concluded
that these allegations, if proven, may give rise to a violation of international law.11 As the Bridgestone litigation continues, TNCs are confronted with the need to identify international child labor standards so as
to avoid liability.
In addition to the risk of liability, failure of TNCs or TNCs’ suppliers
to comply with international child labor standards may pose reputational
risks. An incident involving Gap Inc., an international apparel, accessories, and personal care products retailer,12 illustrates this point. In October of 2007, in an article entitled “Child Sweatshop Shame Threatens
Gap’s Ethical Image,” the U.K. newspaper, The Observer, reported that
Gap Inc. had received merchandise from a factory in India where children as young as ten years old worked sixteen hours a day without pay.13
In response, Gap Inc. issued a press release stating that Gap Inc. discontinued the work order placed with that factory.14 The press release, however, was silent on the future fate of child laborers and whether they in
fact continued working at that factory after Gap Inc. discovered the violations.15 This raises the question of how TNCs should respond to child
labor incidents to assure compliance with international law.
This Note analyzes the treaty law pertaining to the child labor issues
involved in the Bridgestone litigation and the Gap Inc. incident. To be
clear, long before Bridgestone, businesses that conducted activities in a
foreign jurisdiction could be subject to liability under that jurisdiction’s
domestic laws.16 This Note examines child labor standards imposed by
10. Id. at 988, 991, 994, 1019, 1021.
11. Id. at 1021.
12. Gap Inc., Company Fact Sheet, http://www.gapinc.com/public/About/abt_fact_
sheet.shtml (last visited Oct. 23, 2008).
13. Dan McDougall, Child Sweatshop Shame Threatens Gap’s Ethical Image,
OBSERVER, Oct. 28, 2007, available at http://observer.guardian.co.uk/world/story/0,,
2200573,00.html.
14. Press Release, Gap Inc., Gap Inc. Issues Statement on Media Reports on Child
Labor (Oct. 28, 2007).
15. See id.
16. Compare Chadwick v. Arabian Am. Oil Co., 656 F. Supp. 857 (D. Del. 1987)
(applying Saudi Arabian law to the issues of vicarious liability, existence of an employeremployee relationship, and the validity of third-party claims that arose in Saudi Arabia),
with RCA OMS, Inc., 202 N.L.R.B. 228 (1973) (finding that the National Labor Relations Act, 29 U.S.C. § 151–69, including the Labor Management Relations Act, 29
U.S.C. § 141 et seq., does not extend extraterritorially to a U.S. employer in Greenland,
despite the fact that the employees were hired in the United States, underwent U.S. security clearance, were paid from the United States, and returned to the United States upon
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INTERNATIONAL CHILD LABOR REGULATION
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international law, which historically has been shaped by17 treaties,18 customary international law,19 and the general principles of law.20 In recent
years, “a mushrooming of international norms and institutions”21 has
embraced other categories, such as peremptory norms22 and “soft law.”23
While various sources of international law may relate to the problem of
international child labor,24 this Note focuses on treaties and conventions,
finishing the job). See also Felice Morgenstern & Blaise Knapp, Multinational Enterprises and the Extraterritorial Application of Labour Law, 27 INT’L & COMP. L. Q. 769
(1978) (discussing extraterritorial application of domestic labor law).
17. See Statute of the International Court of Justice art. 38(1), June 26, 1945, 59 Stat.
1031, T.S. No. 993 [hereinafter ICJ Statute].
18. A treaty is “an international agreement concluded between States in written form
and governed by international law.” Vienna Convention on the Law of Treaties art.
2(1)(a), May 23, 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention].
19. Customary international law is “evidence of a general practice accepted as law.”
ICJ Statute, supra note 18, art. 38(1)(b). See also ANTONIO CASSESE, INTERNATIONAL
LAW 153, 156 (2d ed. 2005) (discussing customary international law).
20. The general principles of law “emanate from principles endorsed by the developed domestic legal systems of different [S]tates.” G.M. DANILENKO, LAW-MAKING IN
THE INTERNATIONAL COMMUNITY 177 (1993). An example of the general principles of law
is the principle of good faith. BING CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY
INTERNATIONAL COURTS AND TRIBUNALS 105–58 (1987).
21. Janet Koven Levit, Bottom-Up International Lawmaking: Reflections on the New
Haven School of International Law, 32 YALE J. INT’L L. 393, 410 (2007).
22. A jus cogens, or a 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, supra note 18, art. 53. The prohibition on genocide is an example of a jus cogens norm. CASSESE, supra note 19, at 155,
199–212; THEODOR MERON, THE HUMANIZATION OF INTERNATIONAL LAW 392–98 (2006).
23. The term “soft law” refers to sources of law other than treaties and custom, for
example, instruments generated by international bodies, nongovernmental organizations,
and TNCs. Jan Klabbers, The Undesirability of Soft Law, 67 NORDIC J. INT’L L. 381, 385
(1998); Levit, supra note 21, at 413–12.
24. See, e.g., Larry Catá Backer, Economic Globalization and the Rise of Efficient
Systems of Global Private Law Making: Wal-Mart as Global Legislator, 39 CONN. L.
REV. 1739 (2007) (assessing the role of TNCs in developing international standards of
corporate behavior); Madeleine Grey Bullard, Child Labor Prohibitions Are Universal,
Binding, and Obligatory Law: The Evolving State of Customary International Law Concerning the Unempowered Child Laborer, 24 HOUS. J. INT’L. L. 139 (2001) (analyzing
child labor standards as a matter of international customary law); A.C.L. Davies, Should
the EU Have the Power to Set Minimum Standards for Collective Labour Rights in the
Member States, in LABOUR RIGHTS AS HUMAN RIGHTS 177 (Philip Alston ed., 2005) (discussing the role of the supranational legislature in the European Union in establishing
labor standards).
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which, at least until recently, have represented the strongest form of international legal obligations.25
This Note argues that child labor, as a problem of social and economic
development, requires TNCs to act proactively. Often, after exposure in
the media for its association with a supplier that uses child labor, a U.S.
or other Western company will impulsively discontinue its relationship
with the supplier or require that child laborers be dismissed from the
supplier’s production.26 This reactive approach does not squarely address
the issues that child labor raises and may be inconsistent with the principles of children’s human rights. Where a TNC detects incidents of
child labor, the TNC should focus on creating meaningful alternatives for
children dismissed from work.
This Note proceeds in five parts. Part I examines the phenomenon of
child labor and the role of domestic and international law in child labor
regulation. Part II analyzes the child labor standards adopted by the International Labour Organization (“ILO”),27 including the Worst Forms of
Child Labor Convention.28 Part III discusses the human rights of economically active children, as codified in the Convention on the Rights of
the Child.29 Part IV addresses the significance of child labor standards set
forth in U.S. free trade agreements (“FTAs”). Part V concludes the analysis and provides recommendations and planning considerations for the
implementation of international child labor standards in TNCs’ corporate
compliance programs.
I. CHILD LABOR AS AN INTERNATIONAL CONCERN
Today one in seven children in the world works.30 The term “child”
generally refers to a person under the age of eighteen,31 and the “eco25. JAMES AVERY JOYCE, WORLD LABOUR RIGHTS AND THEIR PROTECTION 21 (1980).
26. See John Schmid, Guatemalan Kohl’s Apparel-Maker Signs Labor Pledge,
MILWAUKEE J. SENTINEL, July 2, 2007, available at http://www.nlcnet.org/article.php?id=412
(quoting Charles Kernaghan of the National Labor Committee, a U.S. nongovernmental
organization, who has pointed out that when a U.S. company, in order to avoid the association with a sweatshop, withdraws its orders, “the workers [at the sweatshop] get doubly punished”).
27. The ILO is a specialized agency of the United Nations responsible for social and
labor issues, such as the right to work and social security. JOYCE, supra note 25, at 29; N.
VALTICOS, INTERNATIONAL LABOUR LAW 19 (1979).
28. ILO Convention (No. 182) Concerning the Prohibition and Immediate Action for
the Elimination of the Worst Forms of Child Labor, June 17, 1999, S. TREATY DOC. NO.
106-5 (1999), 2133 U.N.T.S.161 [hereinafter Worst Forms of Child Labor Convention].
29. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.
30. Seven out of ten working children harvest crops and tend livestock in agriculture.
Twenty-two percent of working children are in the services sector, where some of them
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INTERNATIONAL CHILD LABOR REGULATION
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nomic activities” of children are understood to encompass various productive functions, paid and unpaid, formal and informal, legal and illegal.32 In this context, as the Bridgestone court has pointed out, “national
and international norms accommodate a host of different situations”
where children’s work is acceptable.33 This raises the issue of defining
prohibited activities encompassed by the term “child labor.”
A. Defining “Child Labor”
Children’s economic activities exist within a continuum. On one end of
the continuum are various exploitative forms of labor, such as the bonded
labor allegedly involved in the Gap Inc. incident.34 Bonded labor, common in South Asia, arises when an indebted family puts their children to
work to pay off the debt.35 As bonded children work for nominal wages
and the creditor typically retains the major part of the wages as interest,36
which may be as high as sixty percent, the bondage status may pass to
the next generation.37 On the other end of the continuum are activities of
children who were fortunate to become apprentices in trades, which is
are informally employed as domestic workers who prepare meals, wash dishes, or care
for little children. Nine percent are in the industry sector, which includes construction,
manufacturing, and mining. Human Rights Watch, Child Domestics: The World
of Invisible Workers (2004), http://hrw.org/english/docs/2004/06/10/africa8789.htm [hereinafter Child Domestics]; Int’l Labour Org. [ILO], Facts on Child Labour
2006 (2006), available at http://www.ilo.org/ipecinfo/product/viewProduct.do?product
Id=2899; ILO, World Day Against Child Labour (2007), available at http://www.ilo.org/
ipecinfo/product/viewProduct.do?productId=4048.
31. Worst Forms of Child Labor Convention, supra note 28, art. 2; Convention on the
Rights of the Child, supra note 29, art. 1 (providing that “a child means every human
being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”).
32. The term “economic activity” “encompasses most productive activities undertaken by children, whether for the market or not, paid or unpaid, for a few hours or full
time, on a causal or regular basis, legal or illegal; it excludes chores undertaken in the
child’s own household or schooling.” ILO, International Labour Conference, May 31–
June 16, 2006, Report of the Director-General, The End of Child Labour: Within Reach,
Global Report Under the Follow-up to the ILO Declaration on Fundamental Principles
and Rights at Work, at 6, Rep. I(B), available at http://www.ilo.org/public/english/standards/
relm/ilc/ilc95/pdf/rep-i-b.pdf [hereinafter ILO, The End of Child Labour].
33. Roe v. Bridgestone Corp., 492 F. Supp. 2d 988, 1020 (S.D. Ind. 2007).
34. McDougall, supra note 13.
35. A. Yasmine Rassam, International Law and Contemporary Forms of Slavery: An
Economic and Social Rights-Based Approach, 23 PENN ST. INT’L L. REV. 818, 820–24
(2005).
36. WORLD VISION UK, OFFERING HOPE, NOT DESPAIR: ERADICATING CHILD LABOUR
WITHOUT PUTTING CHILDREN WORKERS ON THE STREETS 17 (1997).
37. Rassam, supra note 35, at 821.
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sometimes the only realistic way to learn vocational skills in some countries.38 In India, for example, children in families of artisans, craftsmen,
and farmers traditionally join their family trade and learn while working
alongside the family members.39 The question then becomes what factors
can distinguish “child labor” from other economic activities of children.
In order to answer this question, it is helpful to identify the concerns
that child labor raises and the policies underlying the child labor prohibition. One concern is the children’s health and well-being. For example,
in Bangladesh alone, fifty child laborers are injured by machinery daily,
and three of those fifty become permanently disabled.40 Another concern
is the exploitation of children, as in Guatemala and El Salvador, where
tens of thousands of domestic servants as young as eight years of age
work ninety-hour weeks.41 Working children are also often deprived of
educational opportunities, for example, in rural areas in Mexicali Valley,
Mexico, where child labor is common and school attendance during the
harvesting season drops significantly.42 Entering the workforce too early
reduces the children’s future earnings by thirteen to twenty percent43 and
hardly benefits the domestic economy because children are generally less
productive than adults.44 Ultimately, the child labor prohibition aims to
38. Michael Bonnet, Child Labour in Africa, 132 INT’L LAB. REV. 371, 385–87
(1993).
39. Shahana Dasgupta, Child Welfare Legislation in India: Will Indian Children Benefit from the United Nations Convention on the Rights of the Child, 11 MICH. J. INT’L L.
1301, 1308 (1990).
40. ILO, World Day Against Child Labour, supra note 30. In developing countries,
the rate of injury and illness of working children ranges from twelve percent (for boys in
agriculture) to thirty-five percent (for girls in construction). ILO, Child Labour in Africa
(2005), available at http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1009
&context=child.
41. Child Domestics, supra note 30.
42. DAVID BACON, THE CHILDREN OF NAFTA: LABOR WARS ON THE U.S./MEXICO
BORDER 33 (2004).
43. ILO, The End of Child Labour, supra note 32, at 24.
44. Employers in certain industries attempt to justify child labor under the “nimble
fingers” theory, which holds that children are more productive than adults in carrying out
certain tasks, such as manual tasks that require dexterity. This theory, however, would
not be defensible “were it not for the fact that child labor is much cheaper, more subservient, and therefore better exploited by employers.” M. Neil Browne et al., Universal
Moral Principles and the Law: The Failure of One-Size-Fits-All Child Labor Laws, 27
HOUS. J. INT’L L. 1, 28–29 (2004). See also Savitri Goonesekere, The Best Interests of the
Child: A South Asian Perspective, in THE BEST INTERESTS OF THE CHILD: RECONCILING
CULTURE AND HUMAN RIGHTS 117, 143 (Philip Alston ed., 1994) (discussing Mehta v.
State of Tamil Nadu, a 1990 decision of the Supreme Court of India, which held that the
need for children’s work in the matches industry in Sivakasi outweighed the concern for
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INTERNATIONAL CHILD LABOR REGULATION
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eliminate practices that impede children’s development and education.45
As a matter of social policy, the child labor prohibition ensures the development of human capital and, consequently, long-term social and
economic growth.46
The prohibition of child labor, however, does not discourage children
from contributing to the family’s budget, learning vocational skills and
participating in communal life through their economic activities.47 Daily,
some 30,000 children worldwide die as a result of extreme poverty,48 and
thus, children’s economic activities may be essential to their survival. A
factory in Kutsia, Bangladesh, for instance, dismissed orphans who were
too young to work.49 These children eventually attempted to return to the
factory by bribing the supervisors or by staying on after bringing lunch to
their elder siblings because it was the children’s only opportunity to earn
a living.50 In addition, through their productive activities, children integrate into the community, as in Africa, where children as young as ten
years old begin imitating their family members in the household and
farm tasks, and then move to other tasks, including serving the elders in
their community.51 As such, notions about the appropriateness of children’s economic activities vary among countries.
their well-being since “tender hands of children are more suited to the sorting out of the
manufactured product, and processing it for purposes of packing”).
45. See Ranjan K. Agarwal, The Barefoot Lawyers: Prosecuting Child Labour in the
Supreme Court of India, 21 ARIZ. J. INT’L & COMP. L. 665, 676 (2004) (discussing the
effects of child labor on children’s schooling and vocational training). See also Beatrice
Adenike Oloko, Children’s Work in Urban Nigeria: A Case Study of Young Lagos Street
Traders, in PROTECTING WORKING CHILDREN 13–21 (William E. Myers ed., 1991) (discussing the impact of children’s involvement in street trading on their academic achievement).
46. Marisa Anne Pagnattaro, Enforcing International Labor Standards: The Potential
of the Alien Tort Claims Act, 37 VAND. J. TRANSNAT’L L. 203, 246–47 (2004).
47. See Breen Creighton, Combating Child Labour: The Role of International Labour
Standards, 18 COMP. LAB. L.J. 362, 363 (1997) (providing examples of children’s work
that is not abusive or exploitative); ILO, World Day Against Child Labour, supra note 30
(discussing child labor in agriculture and pointing out that not all work negatively affects
children).
48. ILO, The End of Child Labour, supra note 32, at 1.
49. JEREMY SEABROOK, CHILDREN OF OTHER WORLDS: EXPLOITATION IN THE GLOBAL
MARKET 23 (2001).
50. Id.
51. Bonnet, supra note 38, at 377. See also B. Rwezaura, The Concept of the Child’s
Best Interest in the Changing Economic and Social Context of Sub-Saharan Africa, in
THE BEST INTERESTS OF THE CHILD: RECONCILING CULTURE AND HUMAN RIGHTS, supra
note 44, at 82, 89–92 (discussing economic activities of children in Sub-Saharan Africa).
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B. The Role of Domestic Law in Regulating Child Labor
Child labor laws originally developed in domestic legal systems52 and
reflected domestic ideology, economy, and culture. In the United States,
for example, the 1938 Fair Labor Standards Act was adopted after the
Lochner53 era of free labor ideology54 and left the entire agricultural sector unregulated.55 Today, this federal statute56 outlaws only “oppressive”57 child labor and, generally, sets fourteen as the minimum age for
nonagricultural work, but exempts from regulation children’s work at
family-owned businesses and farms, as performers and babysitters, and
in certain other settings.58 In India, in turn, where child labor is common,59 the 1986 Child Labour (Prohibition and Regulation) Act restricts
employment of children under fourteen only in specific occupations and
52. Rajani Kanta Das, Child Labour in India I, 28 INT’L LAB. REV. 796, 811, 814
(1933).
53. Lochner v. New York, 198 U.S. 45 (1905) (striking down a New York statute that
limited work hours for bakers as violating the rights to property and contractual autonomy implicated in the due process clause of the Fourteenth Amendment of the U.S. Constitution). Cf. W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (upholding the constitutional validity of the minimum wage law of the State of Washington).
54. Horacio Spector, Philosophical Foundations of Labor Law, 33 FLA. ST. U. L.
REV. 1119, 1122 (2006).
55. HUGH D. HINDMAN, CHILD LABOR: AN AMERICAN HISTORY 85 (2002).
56. Individual States within the United States may promulgate more protective child
labor laws. See U.S. Dep’t of Labor Employment Standards Admin., State Labor Laws,
http://www.dol.gov/esa/whd/state/state.htm (last visited Oct. 3, 2008) (summarizing labor
laws in individual U.S. States).
57. The Fair Labor Standards Act, 29 U.S.C. § 203(l) (2006), defines “oppressive
child labor” as follows:
[A] condition of employment under which (1) any employee under the age of
sixteen years is employed by an employer (other than a parent or a person
standing in place of a parent employing his own child or a child in his custody
under the age of sixteen years in an occupation other than manufacturing or
mining or an occupation found by the Secretary of Labor to be particularly hazardous for the employment of children between the ages of sixteen and eighteen years or detrimental to their health or well-being) in any occupation, or (2)
any employee between the ages of sixteen and eighteen years is employed by
an employer in any occupation which the Secretary of Labor shall find and by
order declare to be particularly hazardous for the employment of children between such ages or detrimental to their health or well-being; but oppressive
child labor shall not be deemed to exist by virtue of the employment in any occupation of any person with respect to whom the employer shall have on file an
unexpired certificate issued and held pursuant to regulations of the Secretary of
Labor certifying that such person is above the oppressive child-labor age.
58. Id. §§ 203, 212, 213(c)–(d), 214.
59. AMARTYA KUMAR SEN, DEVELOPMENT AS FREEDOM 114 (2000).
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processes, including tasks characteristic of the South Asian economy
such as the making of beedi (hand-rolled local cigarettes),60 carpetweaving,61 and, as of 2006, working in dhabas (road-side eateries) and
tea-shops.62 These examples demonstrate that individual governments
can tailor their domestic child labor laws to fit into their specific economic and social policies.
Domestic child labor regulation may also respond to unique changes
occurring in a particular jurisdiction. In Russia, for instance, the 1990s
jump from a centrally planned economy to the free-market “gangster capitalism”63 has led to a demographic crisis, which has resulted in a
750,000–800,000 annual population drop64 and the emergence of “street
children”—homeless and orphaned children living in the streets.65 The
2001 Russian Labor Code addresses this crisis by prohibiting employment of children under sixteen66 and affirmatively guarantying thirty-one
60. Beedi are also known as bidi or biri. Manas Bhattacharya et al., Making Ends
Meet: Bidi Workers in India Today, A Study of Four States 1–2, 78 (Int’l Labour Org.,
Sectoral Activities Programme, Working Paper, provisional ed., 2003), available at
http://www.ilo.org/public/english/dialogue/sector/papers/food/wp202.pdf. See SEABROOK,
supra note 49, at 23, 65 (discussing bidi).
61. Child Labour (Prohibition and Regulation) Act, Act No. 61 (1986) (India), available at http://labour.gov.in/cwl/ChildLabour.htm (click on the “Child Labour (Prohibition & Regulation) Act” hyperlink). The Constitution of India provides that “no child
below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.” INDIA CONST. art. 24. See also Dasgupta,
supra note 39, at 1304–07 (examining the laws of India pertaining to child labor).
62. Ministry of Labour and Employment, Notification, The Gazette of India, Oct. 10,
2006, Extraordinary, No. 1211, 2, pt II, sec.3(ii), S.O. 1742(E), available at http://labour.
nic.in/cwl/clBanningFinalOrder.pdf.
63. GEORGE TSOGAS, LABOR REGULATION IN A GLOBAL ECONOMY 6 (2001).
64. This decrease is a result of a misbalance between the population birth and death
rates. This problem is sometimes referred to as the “lost generation of the 1990s.” A.G.
GLISKOV ET AL., PRAVA I OBJAZANNOSTI NESOVERŠENNOLETNIH (KOMMENTARII K ZAKONODATEL’STVU O PRAVAH NESOVERŠENNOLETNIH I ZAŠČITE ETIH PRAV ) [RIGHTS AND DUTIES OF MINORS (COMMENTARY ON THE LEGISLATURE ON THE RIGHTS OF MINORS AND
PROTECTION THEREOF)] 8–9 (2007).
65. U.S. DEP’T OF LABOR, BUREAU OF INT’L LABOR AFFAIRS, U.S. DEPARTMENT OF
LABOR’S 2006 FINDINGS ON THE WORST FORMS OF CHILD LABOR 389–90 (2007).
66. Three exceptions to this rule are (1) employment of a child fifteen years or older
who has graduated from or left in accordance with the federal law a basic general (secondary) educational establishment, (2) light work of a fourteen-year-old, not harmful to
the child’s health and education process, with the consent of one parent (guardian or custodian) and the patronage body, outside of school hours, and (3) participation in the creation and/or performance of art works, without any harm to the child’s health and moral
development, in movie, theatre, concert and circus organizations, with the consent of one
parent (guardian or custodian) and the patronage body. Trudovoi Kodeks [TK] [Labor
Code] art. 63 (Russ.), available at http://www.ilo.org/dyn/natlex/docs/WEBTEXT/60535/
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days of paid vacation to workers under eighteen67 and an annual medical
examination at the employer’s expense.68 The City of Moscow responded
on the local government level by mandating employers with more than a
hundred employees to set a four percent minimum quota for orphans under twenty-three, adolescents under eighteen, and the disabled.69 As individual States and local governments may seem better positioned in designing specific policies with respect to child labor, it is important to address why child labor is also regulated internationally.
C. Regulating Child Labor on the International Level
Parallel with the development of domestic child labor laws, the idea of
international regulation of child labor emerged, and it was supported by
regulatory, economic, and humanitarian arguments.70 Less labor regulation in one country may be a factor in attracting employers from other
parts of the world,71 which, consequently, disadvantages workers in
countries with tougher labor laws, such as developed countries.72 Labor
regulation on the international level curbs such attempts to gain a competitive edge by sacrificing labor protections.73 As for the economic aspect of international child labor regulation, poverty is a significant cause
65252/E01RUS01.htm; O.B. SMIRNOV ET AL., KOMMENTARII K TRUDOVOMU KODEKSU
ROSSIJ-SKOJ FEDERACII [COMMENTARY ON THE LABOR CODE OF THE RUSSIAN
FEDERATION] 160–61 (2007).
67. Trudovoi Kodeks [TK] [Labor Code], supra note 66, art. 267 (“Employees under
[eighteen] years old are granted an annual paid leave of [thirty-one] calendar days at any
time convenient to them.”).
68. Id. art. 266 (“Persons under [eighteen] years old are to be employed only after
preliminary medical survey and are to pass an annual medical survey up to when they
reach [eighteen] years old. The medical surveys specified in the present Article are paid
at the expense of the employer.”).
69. GLISKOV ET AL., supra note 64, at 451; N. N. ŠEPULINA, NOVOE ZAKONODATEL’STVO OB OHRANE TRUDA [THE NEW LEGISALTURE ON LABOR PROTECTION] 172 (2007).
70. VALTICOS, supra note 27, at 17–18.
71. Jonathan P. Hiatt & Deborah Greenfield, The Importance of Core Labor Rights in
World Development, 26 MICH. J. INT’L L. 39, 41 (2004); Kevin Kolben, Integrative Linkage: Combining Public and Private Regulatory Approaches in the Design of Trade and
Labor Regimes, 48 HARV. INT’L L. J. 203, 206–07 (2007).
72. See TSOGAS, supra note 63, at 19, 35–36; Cleopatra Doumbia-Henry & Eric Gravel, Free Trade Agreements and Labour Rights: Recent Developments, 145 INT’L LAB.
REV. 185, 189 (2006) (discussing the concern about a “protectionist backlash from the
developed countries” in enforcement of labor rights through trade agreements).
73. Doumbia-Henry & Gravel, supra note 72, at 189; Kolben, supra note 71, at 206–
07.
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INTERNATIONAL CHILD LABOR REGULATION
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and, at the same time, a consequence of child labor.74 In developing
countries, where child labor is prevalent,75 this creates a vicious cycle,
and so international regulation of child labor may help to break this
cycle.76 Moreover, labor rights (which in the United States are often referred to as “workers’ rights”)77 involve human rights,78 such as the right
to be free from exploitation.79 These arguments have prompted the gradual development of international child labor regulation, as reflected in
the conventions of the ILO.
II. CHILD LABOR STANDARDS IN THE ILO CONVENTIONS
The ILO is an international body that develops labor standards through
adoption of conventions and recommendations80 and engages govern74. Browne et al., supra note 44, at 26–27. See also Worst Forms of Child Labor
Convention, supra note 28, pmbl. (stating that “child labor is to a great extent caused by
poverty”).
75. Agarwal, supra note 45, at 665. Sub-Saharan Africa has the highest percentage of
economically active children (twenty-six percent), followed by the Asian-Pacific region
(less than twenty percent), and Latin America and the Caribbean (five percent). ILO,
Facts on Child Labour 2006, supra note 30.
76. Kaushik Basu & Pham Hoang Van, The Economics of Child Labor, 88 AM. ECON.
REV. 412, 413 (1998).
77. Philip Alston & James Heenan, Shrinking the International Labor Code: An Unintended Consequence of the 1998 ILO Declaration of Fundamental Principles and
Rights at Work? 36 N.Y.U. J. INT’L L. & POL. 221, 224 (2004).
78. The International Covenant on Civil and Political Rights prohibits all forms of
slavery and “forced or compulsory labour” and affirms the rights to unionize and to be
free from discrimination. International Covenant on Civil and Political Rights arts. 8, 22,
26, Dec. 19, 1966, 999 U.N.T.S. 171. The International Covenant on Economic, Social
and Cultural Rights provides for the right to be free from discrimination, the “right to
work,” the right “to the enjoyment of just and favourable conditions of work,” the right to
unionize, and the right to social security. International Covenant on Economic, Social and
Cultural Rights arts. 2(2), 6–9, Dec. 16, 1966, 993 U.N.T.S. 3. The Universal Declaration
of Human Rights affirms the equality of “all human beings,” prohibits all forms of slavery, and provides for the “right to work,” “free choice of employment,” “just and favourable conditions of work,” “protection against unemployment,” “equal pay for equal
work,” “just and favorable remuneration,” the right to unionize, and “the right to rest and
leisure, including reasonable limitation of working hours and periodic holidays with
pay.” Universal Declaration of Human Rights, G.A. Res. 217A(III), at 72–73, 75, U.N.
GAOR, 3d Sess., 183d plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948). See also Philip Alston, Labour Rights as Human Rights: The Not So Happy State of the Art, in LABOUR
RIGHTS AS HUMAN RIGHTS, supra note 24, at 1, 2–5 (discussing labor rights as human
rights).
79. Universal Declaration of Human Rights, supra note 78, at 72.
80. The ILO conventions have the force of treaties and bind the States that ratify such
conventions. The ILO recommendations are nonbinding policy guidelines. JOYCE, supra
note 25, at 26; TSOGAS, supra note 63, at 43–44.
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ments, employers, and workers in the standard-setting process in a model
known as the “tripartite structure.”81 Prior to 1973, the ILO generated
standards for individual economic sectors, such as industry or agriculture,82 and focused on “child welfare”83 rather than child labor abolition.
The 1973 Minimum Age Convention No. 138,84 which is currently in
force,85 was the first “umbrella”86 convention that covered all economic
sectors87 and identified the goal of child labor abolition.88 The United
States has not ratified this Convention.89 The Convention, however, provides a framework for analyzing the 1999 Worst Forms of Child Labor
Convention, which the United States has ratified.90
81. Constitution of the International Labour Organisation art. 7, Oct. 9, 1946, 62 Stat.
3485, 15 U.N.T.S. 35; JOYCE, supra note 25, at 32–35. As of October 5, 2008, 182 countries are ILO members. Int’l Labour Org., Alphabetical List of ILO Member Countries
(182 Countries), http://www.ilo.org/public/english/standards/relm/country.htm (last visited Oct. 5, 2008).
82. See, e.g., ILO Convention (No. 59) Fixing the Minimum Age for Admission of
Children to Industrial Employment, June 22, 1937, 40 U.N.T.S. 217; ILO Convention
(No. 10) Concerning the Age for Admission of Children to Employment in Agriculture,
Nov. 16, 1921, 38 U.N.T.S. 143; ILO Convention (No. 6) Concerning the Night Work of
Young Persons Employed in Industry, Nov. 28, 1919, 38 U.N.T.S. 93; ILO Convention
(No. 5) Fixing the Minimum Age for Admission of Children to Industrial Employment,
Nov. 28, 1919, 38 L.N.T.S. 81.
83. Constitution of the International Labour Organisation, supra note 81, Annex,
III(h).
84. ILO Convention (No. 138) Concerning Minimum Age for Admission to Employment, June 26, 1973, 1015 U.N.T.S. 297 [hereinafter Minimum Age Convention].
85. ILOLEX Database of Int’l Labour Standards, Ratifications by Country or by
Convention, http://www.ilo.org/ilolex/english/newratframeE.htm (last visited Aug. 29,
2008).
86. Int’l Labour Conf., 90th Sess., A Future Without Child Labor, Global Report
under the Follow-up to the ILO Declaration of Fundamental Principles and Rights at
Work, rpt. I(B), 2 (2000), available at http://www.ilo.org/dyn/declaris/DECLARATIONWEB
.DOWNLOAD_BLOB?Var_DocumentID=1566 [hereinafter ILC, A Future Without Child
Labor].
87. Minimum Age Convention, supra note 84, pmbl., art. 1.
88. Id. pmbl., art. 10.
89. ILOLEX Database of Int’l Labour Standards, supra note 85.
90. Worst Forms of Child Labor Convention, supra note 28. The United States has
ratified two ILO Conventions: the 1957 Forced Labor Convention and the 1999 Worst
Forms of Child Labor Convention. The standards of the former, as applied to the employment of youth, overlap with those of the latter. Compare ILO Convention (No. 105)
Concerning the Abolition of Forced Labor, June 25, 1957, S. TREATY DOC. NO. 88-11
(1963), S. TREATY DOC. NO. 102-3 (1991), 320 U.N.T.S. 291, with Worst Forms of Child
Labor Convention, supra note 28, pmbl. (stating that “some of the worst forms of child
labour are covered by other international instruments, in particular the Forced Labour
Convention, 1930”). ILOLEX Database of Int’l Labour Standards, supra note 85.
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INTERNATIONAL CHILD LABOR REGULATION
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A. The Framework of the Minimum Age Convention No. 138
The 1973 Minimum Age Convention No. 138 distinguishes child labor
from other economic activities of children based on the child’s age and
the work setting. Children under eighteen years old91 generally may not
engage in work “which by its nature or the circumstances in which it is
carried out is likely to jeopardize the health, safety or morals of young
persons.”92 As Recommendation No. 146 accompanying the Convention
provides, the determination regarding the types of work to which this
limitation will apply should take into consideration relevant international
standards, such as those pertaining to the use of dangerous substances
and processes.93 In contrast, States may permit adolescents between thirteen and fifteen years of age to perform “light work,”94 defined as work
that is “not likely to be harmful to their health or development”95 and
does not prejudice children’s education or vocational training.96 This correlation between the child’s age and the type of work created a new
framework for defining child labor across economic sectors.
Despite this progress in defining child labor, the Convention failed to
attract a sufficient number of ratifications at the time of its adoption, especially among the States where child labor was common, such as India,
Indonesia, and Pakistan.97 Developing countries, contending with “ex91. Under the Minimum Age Convention, States may, however, upon consultation
with the concerned organizations of employers and workers, authorize employment or
work of persons from the age of sixteen, “on condition that the health, safety and morals
of the young persons concerned are fully protected and that the young persons have received adequate specific instruction or vocational training in the relevant branch of activity.” Minimum Age Convention, supra note 84, art. 3(3).
92. Id. art. 3(1).
93. ILO Minimum Age Recommendation (No. 146) art. 10(1), June 26, 1973, available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?R146.
94. Minimum Age Convention, supra note 84, art. 7(1).
95. Id. art. 7(1)(a).
96. Id. art. 7(1)(b).
97. By 1996, out of 173 ILO members, only forty-nine ratified the Minimum Age
Convention. David M. Smolin, Strategic Choices in the International Campaign Against
Child Labor, 22 HUM. RTS. Q. 942, 945 (2000). Indonesia and Pakistan ratified the Convention in 1999 and 2006, respectively. To date, 150 States have ratified the Convention,
excluding India, Liberia, and the United States. ILOLEX Database of Int’l Labour Standards, supra note 85. Approximately only a quarter of all ILO members ratified other
ILO instruments protecting working children, such as conventions requiring employers to
conduct annual medical examinations of children-employees. Id. See, e.g., ILO Convention (No. 124) Concerning Medical Examination of Young Persons for Fitness for Employment Underground in Mines, June 23, 1965, 614 U.N.T.S. 239; ILO Convention (No.
78) Concerning Medical Examination of Children and Young Persons for Fitness for
Employment in Non-Industrial Occupations, Oct. 9, 1946, 78 U.N.T.S. 213.
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plosive population growth, endemic poverty, and lack of adequate infrastructure,”98 found the Convention insufficiently flexible, despite its
“flexibility clauses,”99 because the Convention failed to identify the immediate priorities and a methodology for achieving the goal of child labor abolition.100 As for developed countries, the Convention’s presumption that the work of children under thirteen is impermissible under any
circumstances contradicted the preference of such countries to leave the
part-time work of youth, such as morning newspaper delivery by a
twelve-year-old, in the realm of parental control and public opinion rather than regulation by law.101 Thus, the Minimum Age Convention No.
138 provided a new framework for analyzing child labor, but failed to
achieve international consensus on the issue.
B. The Worst Forms of Child Labor Convention: Reaching a Consensus
In the 1990s, the ILO undertook a “strategic shift”102 in its policy on
child labor and identified the elimination of the worst forms of child labor as a priority. The ILO moved from traditional labor issues, such as
the regulation of work conditions, to criminal law areas, such as child
trafficking and the economic exploitation of children through prostitution
and military recruitment.103 This approach culminated in the 1999 Worst
Forms of Child Labor Convention, a product of the realization that immediate steps needed to be taken to abolish intolerable forms of child
labor.104 One hundred and sixty-five countries, including the United
States, have ratified this Convention.105
98. Creighton, supra note 47, at 388.
99. Id. at 391. Under the Minimum Age Convention, in certain circumstances, States
may exclude limited categories of work from the application of the Convention, and developing countries, in particular, may set the minimum age at fourteen years. In addition,
the Convention does not apply to certain types of work performed as part of children’s
education or training. Minimum Age Convention, supra note 84, art. 2(4), 4, 5(3), 6.
100. Creighton, supra note 47, at 390–92.
101. Id. 386–88.
102. Smolin, supra note 97, at 942.
103. See Worst Forms of Child Labor Convention, supra note 28, pmbl., art. 3(a)–(c)
(recognizing “the need to adopt new instruments for the prohibition and elimination of
the worst forms of child labour,” such as trafficking and forced or compulsory military
recruitment of children).
104. Michael J. Dennis, The ILO Convention on the Worst Forms of Child Labor, 93
AM. J. INT’L L. 943, 943 (1999); Yoshie Noguchi, ILO Convention No. 182 on the Worst
Forms of Child Labour and the Convention on the Rights of the Child, 10 INT’L J. CHILD.
RTS. 355, 355 (2002).
105. ILOLEX Database of Int’l Labour Standards, supra note 85.
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INTERNATIONAL CHILD LABOR REGULATION
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The Convention applies to all persons under eighteen years of age106
and focuses on the abolition of two categories of child labor: the “unconditional worst forms of child labor” and “hazardous work.”107 The unconditional worst forms of child labor include “all forms of slavery or
practices similar to slavery,” debt bondage, and the use of children in
various illicit activities.108 These forms of labor are prohibited unconditionally because improving their conditions would not justify such practices.109 Similarly to the Minimum Age Convention No. 138, hazardous
work encompasses “work which, by its nature or the circumstances in
which it is carried out, is likely to harm the health, safety or morals of
children.”110 The Worst Forms of Child Labor Convention refers to111 a
list of considerations for identifying “hazardous work” as set forth in
ILO Recommendation No. 190.112 These considerations include, without
limitation, exposure to dangerous machinery and substances damaging to
health.113 Because of its focus on the intolerable forms of child labor, the
106. Worst Forms of Child Labor Convention, supra note 28, art. 2.
107. The ILO Worst Forms of Child Labour Recommendation refers to the forms of
child labor prohibited under Article 3(d) of the Convention as “hazardous work.” ILO
Worst Forms of Child Labour Recommendation (No. 190) art. 3, June 17, 1999, available
at http://www.unhcr.org/home/RSDLEGAL/3ddb6ef34.pdf. Commentators use the term
“unconditional forms worst forms of child labor” to refer to the practices identified in
Article 3(a)–(c) of the Convention. See, e.g., Noguchi, supra note 104, at 358.
108. The unconditional forms of child labor comprise the following:
(a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed
conflict; (b) the use, procuring or offering of a child for prostitution, for the
production of pornography or for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production
and trafficking of drugs as defined in the relevant international treaties.
Worst Forms of Child Labor Convention, supra note 28, art. 3(a)–(c).
109. Noguchi, supra note 104, at 358.
110. The Worst Forms of Child Labor Convention replaced the word “jeopardize” in
the definition of “hazardous work” in the Minimum Age Convention with the word
“harm”: “work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.” Compare Worst Forms of Child Labor Convention, supra note 28, art. 3(d) (emphasis added), with Minimum Age Convention, supra note 84, art. 3(1).
111. Worst Forms of Child Labor Convention, supra note 28, art. 4(1).
112. ILO Worst Forms of Child Labour Recommendation (No. 190), supra note 110,
art. 3.
113. Other relevant considerations are “work which exposes children to physical, psychological or sexual abuse”; “work underground, under water, at dangerous heights or in
confined spaces”; “work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads”; “work in an unhealthy environ-
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Convention has limited its scope, but achieved greater acceptance than
the Minimum Age Convention No. 138.114
Unlike its predecessor, the Worst Forms of Child Labor Convention
provides guidance on achieving its goals and mandates a proactive approach to the child labor problem.115 The Convention stresses the need to
“reach out to children at special risk”116 and prevent children from engaging in the worst forms of child labor.117 With respect to children removed from work, the Convention emphasizes the importance of measures for “rehabilitation and social integration”118 and access to free basic
education and vocational training.119 Thus, the Convention makes it clear
that not only should children be protected from certain categories of
work, children should also be protected from the need to work.
Empirical data supports this approach and shows that child labor abolition requires proactive measures that address the root causes of child labor. For example, the bolsa escola program in Brazil provides a monthly
minimum salary to poor families whose children stay in school.120 This
eliminates the need for the children to join the workforce too early and
prevents them from dropping out of school, which has made the program
a success.121 Remedial and educational programs such as bolsa escola
show that the solution to the child labor problem lies in “capacity building”122 measures—steps aimed at enhancing the economy, educational
system, and civic participation in a community.123
ment which may, for example, expose children to hazardous substances, agents or
processes, or to temperatures, noise levels, or vibrations damaging to their health”; and
“work under particularly difficult conditions such as work for long hours or during the
night or work where the child is unreasonably confined to the premises of the employer.”
Id. art. 3.
114. Dennis, supra note 104, at 943.
115. Noguchi, supra note 104, at 360–61.
116. Worst Forms of Child Labor Convention, supra note 28, art. 7(2)(d).
117. Id. art. 7(2)(a).
118. Id. art. 7(2)(b).
119. Id. art. 7(2)(c).
120. ILC, A Future Without Child Labor, supra note 86, at 101.
121. Id.
122. WORLD VISION UK, supra note 36, at 10.
123. See SEN, supra note 59, 112–16 (examining the interrelation between markets,
liberty, and labor); Chidi Anselm Odinkalu, Back to the Future: The Imperative of Prioritizing for the Protection of Human Rights in Africa, 47 J. AFRICAN L. 1, 4 (2003) (discussing the role of development in fulfillment of human rights).
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III. HUMAN RIGHTS OF ECONOMICALLY ACTIVE CHILDREN
The Convention on the Rights of the Child,124 which memorializes125
the principles of children’s human rights, identifies two aspects of children’s economic activities. On the one hand, children have the right to be
free from exploitation and involvement in hazardous work,126 as well as
to enjoy rest and leisure.127 On the other hand, children have the rights to
survival128 and an adequate standard of living,129 which are implicated in
situations where children work in order to support themselves and their
families.
The interaction between these two aspects of children’s economic activities can be illustrated by the public debate that surrounded the 1992
Child Labor Deterrence Act130 proposed in the U.S. Congress. This bill
sought to introduce sanctions with respect to imported products made
with child labor131 and, thus, advance children’s right to be free from exploitation. In response to this bill, Bangladeshi local activists asserted
that dismissing children from the garment industry would mean throwing
them into the streets without means of subsistence and effectively forcing
124. Convention on the Rights of the Child, supra note 29. The United States has not
ratified this Convention. The United States has ratified the Optional Protocols to the
Convention on the Rights of the Child on the Involvement of Children in Armed Conflict
and on the Sale of Children, Child Prostitution and Child Pornography, G.A. Res. 54/263,
Annex I, II, U.N. Doc. A/RES/54/263 (May 25, 2000). Office of the U.N. High Comm’r
for Human Rights, Status of Ratifications of the Principal International Human Rights
Treaties, June 9, 2004, http://www.unhchr.ch/pdf/report.pdf. The United States has expressed four areas of concern pertaining to the Convention, namely, sovereignty, federalism, reproductive rights, and parents’ rights. Lainie Rutkow & Joshua T. Lozman, Suffer
the Children?: A Call for United States Ratification of the United Nations Convention on
the Rights of the Child, 19 HARV. HUM. RTS. J. 161, 168, 171–72 (2006). The Convention
may establish principles of customary international law. Bullard, supra note 24.
125. Instruments preceding the Convention on the Rights of the Child include the Declaration of the Rights of the Child, which enumerates ten principles of children’s rights.
Declaration of the Rights of the Child, G.A. Res. 1386 (XIV), at 19, U.N. GAOR, 14th
Sess., 841st plen. mtg., U.N. Doc. A/4354 (Nov. 20, 1959).
126. The Convention on the Rights of the Child provides that States “recognize the
right of the child to be protected from economic exploitation and from performing any
work that is likely to be hazardous or to interfere with the child’s education, or to be
harmful to the child’s health or physical, mental, spiritual, moral or social development.”
Convention on the Rights of the Child, supra note 29, art. 32.
127. Id. art. 31.
128. Id. art. 6(2).
129. Id. art. 27.
130. Child Labor Deterrence Act, S. 3133, 102nd Cong. (1992).
131. Id. § 5.
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the children into more hazardous occupations,132 which would jeopardize
the children’s rights to survival and an adequate standard of living. In
fact, between 1992 and 1995, Bangladeshi manufacturers dismissed tens
of thousands of children who subsequently became rickshaw pullers,
brick carriers, rag-pickers, and prostitutes.133 Some 40,000 children dismissed from the factories were never seen again.134 This example demonstrates that children’s right to be free from exploitation and their
right to survival should be balanced.
As the right to survival is a necessary condition for the enjoyment of
other rights, one may suggest that the right to survival should trump other
rights. But this logic fails in situations involving hazardous work, for
example, deep sea fishing. In the Philippines, a country of seven thousand
islands, children work in pa-aling, or deep sea fishing, where, carrying
hoses attached to a surface air compressor, children dive approximately
thirty to fifty feet without protective gear and chase fish into the nets.135
This exposes children to ear injuries, shark attacks, and drowning.136 The
example of deep-sea fishing shows that the very economic opportunity
that enables a child to earn a living and survive may, at the same time,
expose the child to occupational hazards, and thus, threaten the child’s
survival. The difficulty in balancing the two rights may be paralyzing for
the employer: regardless of whether the employer dismisses the child
from work or allows the child to work, the employer would in effect take
away the child’s rights.
The “best interests” principle helps to resolve this tension. This principle, as codified in the Convention on the Rights of the Child, provides
that, in all actions involving the child, the “best interests of the child
shall be a primary consideration.”137 The drafters’ use of the indefinite
article in the term “a primary consideration” shows that the child’s inter-
132. Shareen Hertel, New Moves in Transnational Advocacy: Getting Labor and Economic Rights on the Agenda in Unexpected Ways, 12 GLOBAL GOVERNANCE 263, 267–68
(2006).
133. SEABROOK, supra note 49, 64–65; WORLD VISION UK, supra note 36, at 7.
134. Hertel, supra note 132, at 270. See also WORLD VISION UK, supra note 36, at 7
(discussing the consequences of dismissing children from work).
135. U.S. DEP’T OF LABOR, FACES OF CHANGE: HIGHLIGHTS OF U.S. DEPARTMENT OF
LABOR EFFORTS TO COMBAT INTERNATIONAL CHILD LABOR 6 (2003).
136. Id.
137. Convention on the Rights of the Child, supra note 29, art. 3(1). The “best interests” approach is the general principle of law common to many countries. Jacqueline
Rubellin-Devichi, The Best Interests Principle in French Law and Practice, in THE BEST
INTERESTS OF THE CHILD: RECONCILING CULTURE AND HUMAN RIGHTS, supra note 44, at
259, 260.
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ests are not an overriding factor,138 but the choice of the word “consideration” (as opposed to “element” or “factor”) demonstrates that the
child’s interests “must actually be considered.”139 As such, this principle
accommodates various ideological, social, and cultural approaches in a
universal norm and demands the consideration of the child’s unique circumstances.140
The concept of children’s participatory rights may aid in ascertaining
such circumstances. The Convention on the Rights of the Child provides
for a bundle of participatory rights, namely, the freedom of expression,
conscience, and assembly.141 In essence, the concept of participatory
rights or “participation” requires that, depending on the child’s maturity,
the child should participate in decisions about his or her life142 and have
the opportunity to be “present or consulted.”143 As children have been
“the most photographed and the least listened to members of society,”144
the Convention’s codification of this broad range of participatory rights
is a step forward in the fulfillment of children’s rights.145
Participation empowers the child by including the child in the decisionmaking process concerning his or her life, which the following examples
illustrate. A nongovernmental organization (“NGO”), Save the Children
UK, which conducted evaluation missions in Honduras, Bangladesh, and
Burkina Faso, engaged children in data collection and found that children-interviewers can be “particularly effective as children may relate to
138. Philip Alston, The Best Interests Principle: Towards a Conciliation of Culture
and Human Rights, in THE BEST INTERESTS OF THE CHILD: RECONCILING CULTURE AND
HUMAN RIGHTS, supra note 44, at 12, 12.
139. Id. at 13.
140. Id. at 16.
141. Convention on the Rights of the Child, supra note 29, art. 13–15 (establishing the
freedom of expression; freedom of thought, conscience, and religion; freedom of association and peaceful assembly, respectively). See Rutkow & Lozman, supra note 124, at 165
(discussing children’s participatory rights codified in the Convention).
142. Convention on the Rights of the Child, supra note 29, art. 12 (providing for the
right of the child “who is capable of forming his or her own views the right to express
those views freely in all matters affecting the child, the views of the child being given
due weight in accordance with the age and maturity of the child”).
143. Anita Franklin & Patricia Sloper, Listening and Responding? Children’s Participation in Health Care Within England, in CHILDREN’S HEALTH AND CHILDREN’S RIGHTS,
11, 14 (Michael Freeman ed., 2006).
144. ROGER A. HART, CHILDREN’S PARTICIPATION: FROM TOKENISM TO CITIZENSHIP 9
(1992).
145. Cynthia Price Cohen, The United Nations Convention on the Rights of the Child:
A Feminist Landmark, 3 WM. & MARY J. WOMEN & L. 29, 49–50 (1997).
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each other in a more open way.”146 Another NGO, Undugu Society, organized group meetings for street children in Mathare Valley, a slum in
Nairobi, Kenya, who supported themselves by collecting plastic, scrap
metal, and paper bags around the city.147 In the course of these meetings,
children learned how to read a weighing scale and calculate the price of
what they were selling in order to avoid being cheated by the street buyers.148 The children ultimately decided to sell scrap metal directly to the
factory where the price would be fixed, making cheating less likely.149
These examples demonstrate that working children find ways to subsist
in a dangerous world on a daily basis, and therefore, they can help in
identifying realistic solutions to the child labor problem.
IV. CHILD LABOR STANDARDS IN FREE TRADE AGREEMENTS
In addition to the ILO conventions and the Convention on the Rights
of the Child, several U.S. FTAs set forth child labor standards. Generally, parties entering into an FTA agree to eliminate tariffs and other barriers to trade in goods among themselves, facilitating easier access to
each other’s markets.150 This integration of regional trade regimes may
reveal inequalities in labor conditions in such regimes, which some FTAs
address by imposing labor standards, also referred to as “social clauses.”151 Alternatively, signatories to an FTA may choose to enter into a
side agreement with respect to labor standards, such as the North American Agreement on Labor Cooperation (“NAALC”).152 NAALC was the
first labor accord to supplement an FTA,153 namely, the 1992 North
American Free Trade Agreement between Canada, Mexico, and the
United States (“NAFTA”).154
146. SAVE THE CHILDREN, FINDING THE RIGHT TOOLS FOR THE JOB: LESSONS LEARNED
APPLICATION OF THE ILO CONVENTION 182 ON THE WORST FORMS OF CHILD
LABOUR, at i, 7 (2003).
147. HART, supra note 144, at 25.
148. Id.
149. Id.
150. WILLIAM H. COOPER, FREE TRADE AGREEMENTS: IMPACT ON U.S. TRADE AND
IMPLICATIONS FOR U.S. TRADE POLICY 2–5 (2004).
151. TSOGAS, supra note 63, at 19–20. See also Doumbia-Henry & Gravel, supra note
72, at 186, 189 (discussing enforcement of labor standards through trade agreements).
152. North American Agreement on Labor Cooperation, U.S.-Can.-Mex., Sept. 13,
1993, 32 I.L.M. 1499 [hereinafter NAALC].
153. LESLIE ALAN GLICK, UNDERSTANDING THE NORTH AMERICAN FREE TRADE
AGREEMENT 121 (2d ed. 1994).
154. North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 107 Stat.
2057.
ON THE
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INTERNATIONAL CHILD LABOR REGULATION
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The inclusion of labor standards in FTAs opens the possibility of using
trade sanctions as a mechanism for enforcing these standards155—an avenue unavailable under the ILO conventions. Under the ILO Constitution,
the ILO may recommend “such action as it may deem wise and expedient to secure compliance,”156 but the ILO has never imposed and, under
the current version of the ILO Constitution,157 does not have express authority to impose, economic sanctions.158 Currently, the United States is a
party to over a dozen bilateral and regional FTAs.159 These FTAs differ
in their approaches to the use of trade sanctions in enforcing child labor
standards, as NAALC, the 2000 U.S.-Jordan FTA,160 and the 2004 Central American-Dominican Republic-U.S. FTA161(“CAFTA-DR”) illustrate.
A. NAALC: The First Labor Accord to Accompany an FTA
NAALC was intended to address the concern of U.S. labor unions
about the potential accelerated migration of U.S. jobs to Mexico, where
the relatively high existing labor standards were inadequately enforced.162 This accord, however, does not establish new standards, and its
155. See Andrew T. Guzman, Trade Labor, Legitimacy, 91 CAL. L. REV. 885, 886–87
(2003) (observing that “trade sanctions may be the only effective way of establishing
core labor standards”).
156. Constitution of the International Labour Organisation, supra note 81, art. 33.
157. The first ILO Constitution contained a clause providing for economic enforcement measures. This clause was never used and in 1946 it was deleted. Steve Charnovitz,
The Influence of International Labor Standards on the World Trading Regime: A Historical Overview, 126 INT’L LAB. REV. 565, 575–76 (1987).
158. Christopher L. Erickson & Daniel J.B. Mitchell, Labor Standards and Trade
Agreements: U.S. Experience, 19 COMP. LAB. L. & POL’Y J. 145, 149–51 (1998).
159. Office of the U.S. Trade Representative, http://www.ustr.gov/Trade_Agreements/
Section_Index.html (last visited Oct. 5, 2008) (listing U.S. FTAs currently in force).
160. Agreement on the Establishment of a Free Trade Area, U.S.-Jordan, Oct. 24,
2000, 115 Stat. 243 [hereinafter U.S.-Jordan FTA].
161. Central American-Dominican Republic-United States Free Trade Agreement,
May 28, 2004, 119 Stat. 462 [hereinafter CAFTA-DR].
162. Katherine A. Hagen, Fundamentals of Labor Issues and NAFTA, 27 U.C. DAVIS
L. REV. 917, 919–21 (1994); Joan M. Smith, North American Free Trade and the Exploitation of Working Children, 4 TEMP. POL. & CIV. RTS. L. REV. 57, 67 (1994); Stanley M.
Spracker & Gregory M. Brown, Labor Issues Under the NAFTA: Options and Resolutions, in THE NORTH AMERICAN FREE TRADE AGREEMENT: A NEW FRONTIER IN
INTERNATIONAL TRADE AND INVESTMENT IN THE AMERICAS 351, 352–54, 365 (Judith H.
Bello et al. eds., 1994).
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effect in terms of improvement in the labor conditions has been limited.163
NAALC neither incorporates international child labor standards nor introduces minimum standards for the signatories’ domestic laws.164 Instead, the accord affirms the parties’ rights to establish their own labor
laws165: each party has to “ensure” that such laws provide for “high standards” and “strive to improve” them.166 NAALC identifies eleven “guiding principles”167 that the signatories agree to promote, including “labor
protections for children and young persons.”168 This principle requires
“the establishment of restrictions on the employment of children and
young persons that may vary taking into consideration relevant factors
likely to jeopardize the full physical, mental and moral development of
young persons, including schooling and safety requirements.”169 Neither
in this pronouncement nor elsewhere in the agreement does NAALC set
child labor abolition as a goal or specify the minimum age for employment of children.170
The enforcement mechanisms for these relatively weak standards are
toothless.171 NAALC expressly denies any party’s rights to “undertake
law enforcement activities” on another party’s territory172 and any right
to private actions in domestic legal systems.173 The NAALC signatories
agree to advance the guiding principles through collaboration, cooperation, and information exchange.174 For these purposes, NAALC creates
several procedures and bodies for dispute resolution through consultations and arbitration,175 including the Commission for Labor Cooperation.176 Under these procedures, however, it may take a dispute over three
163. Hagen, supra note 162, at 925; Thomas J. Manley & Ambassador Luis Lauredo,
International Labor Standards in Free Trade Agreements of the Americas, 18 EMORY
INT’L L. REV. 85, 104, 111, 113 (2004).
164. See NAALC, supra note 152; Hagen, supra note 162, at 925; Manley & Lauredo,
supra note 163, at 104; Smith, supra note 162, at 79, 86.
165. NAALC, supra note 152, art. 2.
166. Id.
167. Id. annex 1, pmbl.
168. Id. annex 1, para. 5.
169. Id.
170. See NAALC, supra note 152.
171. Hagen, supra note 162, at 927–30; Manley & Lauredo, supra note 163, at 105;
Spracker & Brown, supra note 162, at 365–66.
172. NAALC, supra note 152, art. 42.
173. Id. art. 43.
174. GLICK, supra note 153, at 121.
175. NAALC, supra note 152, arts. 27–41.
176. Id. art. 8.
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INTERNATIONAL CHILD LABOR REGULATION
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years to reach the stage where sanctions may be considered,177 and even
in that case, remedies in the form of monetary penalties and suspension
of trade benefits under NAFTA are limited to “persistent patterns” of
non-enforcement.178
Meanwhile, child labor in Mexico continues to be a problem.179 Between 1999 and 2005, sixteen percent of children ages five to fourteen in
Mexico were engaged in child labor.180 The majority of these children
worked for small companies, in agriculture and construction, where labor
enforcement is inadequate.181 A recent incident involving nine-year-old
David Salgado Aranda, as reported by the U.N. Children’s Fund, supports this contention.182 David migrated with his parents to Sinaloa,
northern Mexico, looking for seasonal work, similar to some 300,000
other migrant workers’ children ages six and older.183 While David was
working picking tomatoes, he was run over by a tractor and killed.184
David was too young to have been working on a commercial plantation.
As these reports and statistics illustrate, NAALC did not have the anticipated positive effect on labor conditions in Mexico.185 This instrument,
however, raised the issue of the protection of working children, which
was a step toward solving the child labor problem.
B. The High Watermark of Child Labor Standards: The U.S.-Jordan FTA
The subsequently concluded U.S.-Jordan FTA provides more stringent
labor protections than NAALC. The U.S.-Jordan FTA reaffirms the signatories’ obligations as ILO members,186 incorporates internationally
recognized minimum age standards,187 and contains a “no relaxation
177. GLICK, supra note 153, at 130; Spracker & Brown, supra note 162, at 372.
178. NAALC, supra note 152, arts. 27(1), 39, 49; Spracker & Brown, supra note 162,
at 370–72.
179. See BACON, supra note 42, at 16, 40–41 (discussing the problem of child labor in
Mexico).
180. U.N. CHILDREN’S FUND, THE STATE OF THE WORLD’S CHILDREN 134 (2006).
181. U.S. DEP’T OF STATE, BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, 2006
COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES, MEXICO (2007), http://www.state.gov/
g/drl/rls/hrrpt/2006/78898.htm.
182. Thomas Nybo, Child Migrant Workers in Mexico Miss out on Education and a
Safe Environment, UNICEF, Mar. 2, 2007, http://www.unicef.org/infobycountry/mexico_3
8520.html.
183. Id.
184. Id.
185. Hagen, supra note 162, at 918–20; Don Wells, “Best Practice” in the Regulation
of International Labor Standards: Lessons of the U.S.-Cambodia Textile Agreement, 27
COMP. LAB. L. & POL’Y J. 357, 358 (2006).
186. U.S.-Jordan FTA, supra note 160, art. 6(1).
187. Id. art. 6(6)(d).
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clause,” under which the parties may not weaken existing domestic labor
standards.188 The agreement enforces compliance with labor provisions
through trade sanctions.189 Due to its high standards and direct enforcement through trade sanctions, the U.S.-Jordan FTA has been characterized as the high watermark in FTA labor protections.190 The U.N. Committee on the Rights of the Child has praised the measures for eliminating child labor in Jordan, including the enhancement of domestic child
labor laws in Jordan and establishment of a national database on child
labor.191 This FTA indicates that where the ILO, lacking the ability to
impose economic sanctions, fails to enforce international labor standards,
trade agreements could potentially take on this role.192
C. CAFTA-DR as a “Missed Opportunity”193 to Improve Labor Conditions
CAFTA-DR stands out among U.S. FTAs because it has created the
second-largest free trade area for U.S. exports in Latin America.194 In
terms of labor protections, CAFTA-DR is similar to NAALC in that it
only addresses the parties’ enforcement of their own “labor laws,”195
which CAFTA-DR defines to include the parties’ laws “directly related”
to the international minimum age requirements and the elimination of the
worst forms of child labor.196 CAFTA-DR subjects labor claims to dispute resolution procedures separate from those for commercial disputes197
188. Id. art. 6(2).
189. Id. art. 10.
190. Doumbia-Henry & Gravel, supra note 72, at 192; Manley & Lauredo, supra note
163, at 105–06; Marisa Anne Pagnattaro, Leveling the Playing Field: Labor Provisions in
CAFTA, 29 FORDHAM INT’L L.J. 386, 440–42 (2006).
191. U.N. Comm. on the Rights of the Child, Consideration of Reports Submitted by
States Parties Under Article 44 of the Convention, paras. 6–7, 88–89, 43d Sess., U.N.
Doc. CRC/C/JOR/CO/3 (Sept. 29, 2006).
192. See supra note 155 and accompanying text.
193. H.R. REP. NO. 109-182, at 46 (2005).
194. Pagnattaro, supra note 190, at 386.
195. CAFTA-DR, supra note 161, art. 16.2(1)(a).
196. Id. art. 16.8. Each signatory promises to “strive to ensure” that it does not derogate from its labor laws in a way that “reduces adherence” to the international standards
referenced in the FTA, but each party retains discretion over “investigatory, prosecutorial, regulatory and compliance matters.” Id. arts. 16.2(1)(b), 16.2(2).
197. Under CAFTA-DR, an aggrieved party has to first seek consultations with another party and, if that fails, escalate the issue to the Labor Affairs Council—a body “comprising cabinet-level or equivalent representatives” of the signatories (or their designees),
and overseeing labor matters under CAFTA-DR. CAFTA-DR, supra note 161, arts. 16.4,
16.6(1), 16.6(4), 16.6(8). CAFTA-DR establishes a Labor Cooperation and Capacity
Building Mechanism to advance capacity building activities in the area of labor stan-
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INTERNATIONAL CHILD LABOR REGULATION
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and does not authorize trade sanctions for labor violations.198 Instead,
CAFTA-DR contains a provision for “monetary assessment” payable to a
fund that CAFTA-DR creates,199 which means that such assessment is
not payable to the aggrieved party.200 Additionally, CAFTA-DR caps
such monetary assessment at fifteen million U.S. dollars per year.201 For
its failure to establish and strictly enforce labor standards, this FTA has
been criticized in the United States as inadequate.202
A representative of the National Labor Committee, a U.S. NGO whose
mission is to help “defend the human rights of workers in the global
economy,”203 recently visited the Legumex factory in Guatemala, a signatory to CAFTA-DR.204 The Legumex factory processes fruits and vegetables for export to the United States.205 Through reports of the National
Labor Committee, the international community learned that at the factory, thirteen-year-old children were working twelve-hour shifts, wearing
only t-shirts in an area surrounded by food freezers.206 A child worker
cutting vegetables for the U.S. consumer has to cut every head of broccoli into ninety-seven pieces in sixty-four seconds, thus, making one cut
every seven-tenths of a second throughout the shift.207 For the duration of
their twelve-hour shifts, children cutting watermelons stand in an inch of
watermelon juice dripping from the cutting tables, children’s wrists swollen and their feet cracked and bleeding.208 These findings support the
contention that CAFTA-DR was “a missed opportunity”209 in improving
labor conditions in CAFTA-DR countries.
dards, but the lack of funding of this mechanism has undermined its significance. Pagnattaro, supra note 190, at 432.
198. See CAFTA-DR, supra note 161, ch. 16; Pagnattaro, supra note 190, at 432.
199. CAFTA-DR, supra note 161, art. 20.17(4).
200. Id.
201. Id. art. 20.17(2).
202. Kolben, supra note 71, at 203–04; Pagnattaro, supra note 190, at 432.
203. The National Labor Committee “investigates and exposes human and labor rights
abuses committed by U.S. companies producing goods in the developing world.” The
National Labor Committee, Mission Statement, http://www.nlcnet.org/aboutus.php (last
visited Oct. 15, 2008).
204. PBC Films, Harvest of Shame: Report Accuses Child Labor Abuses in Guatemala, Mar. 13, 2007, http://www.pbcfilms.com/Harvest_of_Shame.php.
205. Id.
206. The National Labor Committee reports that the employer did not allow children to
wear sweaters because of the fear that lint from the sweaters could get onto the products.
Id.
207. Id.
208. Id.
209. H.R. REP. NO. 109-182, at 46.
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To conclude, U.S. FTAs that contain provisions concerning working
children generally do not set new child labor standards. These agreements, however, encourage the signatories to comply with existing standards and raise awareness regarding child labor issues. Some FTAs also
enforce child labor standards through trade sanctions.
V. CORPORATE COMPLIANCE WITH INTERNATIONAL CHILD LABOR
STANDARDS
As international child labor standards are evolving, TNCs seeking to
manage their litigation and reputational risks should incorporate these
standards into their compliance programs. The purpose of a compliance
program is to ensure that individual and collective behavior within the
corporation follows applicable laws.210 In a compliance program, the focus
is on development of specific business processes and internal mechanisms that proactively prevent and avoid violations of law.211
Compliance programs should be distinguished from codes of conduct
and other ethical business initiatives. Numerous TNCs, including Bridgestone Corporation212 and Gap Inc.,213 have adopted codes of conduct—
“statements of company policy”214 announcing the company’s commitment to ethical business conduct.215 Similarly to codes of conduct, various
“labeling” initiatives certify manufacturers and producers that comply
with child labor standards. For example, the international NGO RugMark
Foundation certifies child-labor compliant carpet manufacturers in South
Asia.216 These ethical business initiatives contribute to the goal of child
labor abolition, but differ from compliance programs in that ethical business initiatives are voluntary and primarily designed as a marketing
210. JAY A. SIGLER & JOSEPH E. MURPHY, INTERACTIVE CORPORATE COMPLIANCE 56,
104 (1988).
211. Id. at 47–48, 79–81, 104.
212. Bridgestone Americas Holding, Inc., Mission, Vision and Values, http://www.
bridgestone-firestone.com/about_index.asp?id=about/mvv (last visited Oct. 15, 2008).
213. GAP INC., CODE OF BUSINESS CONDUCT (2005), available at http://www.gapinc.
com/public/documents/Code_English.pdf; Gap Inc., Code of Vendor Conduct, http://www.
gapinc.com/public/documents/code_vendor_conduct.pdf (last visited Oct. 15, 2008).
214. U.S. DEP’T OF LABOR, THE APPAREL INDUSTRY AND CODES OF CONDUCT: A
SOLUTION TO THE INTERNATIONAL CHILD LABOR PROBLEM?, at i (1996).
215. See Lance Compa & Tashia Hinchliffe-Darricarrère, Enforcing International
Labor Rights Through Corporate Codes of Conduct, 33 COLUM. J. TRANSNAT’L L. 663,
674–85 (1995) (examining the codes of conduct of Levi Strauss & Co., Reebok Corp.,
and Starbucks Coffee Co.).
216. RugMark Foundation, http://www.rugmark.org (last visited Oct. 15, 2008).
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INTERNATIONAL CHILD LABOR REGULATION
233
tool.217 In contrast, compliance programs focus on internal policies and
procedures guiding TNCs’ employees and suppliers and reflecting specific legal standards.
To create a compliance program, TNCs first need to identify the applicable child labor standards and establish measures implementing these
standards in TNCs’ practices and supplier reviews. As the Gap Inc. incident demonstrates,218 TNCs also need to develop procedures governing
their response to child labor incidents.
A. Identifying and Implementing Applicable Standards
As the analysis of treaties and conventions pertaining to child labor
shows, three categories of child labor violate international law219: the
unconditional worst forms of child labor,220 “hazardous work,”221 and
employment of children under a minimum age (which may be set between fifteen and twelve, depending on the States’ international obligations and domestic regulation).222 Based on the definitions of these categories, the bonded child labor allegedly involved in the Gap Inc. incident
should fall under the realm of the unconditional worst forms of child labor.
The engagement of children in the application of pesticides and fertilizers
without protective equipment, as alleged in Bridgestone,223 may violate
international law as a practice exposing children to hazardous substances.
This shows that despite the fact that international child labor standards
set the outer limits of permissible labor practices involving youth, TNCs
may confront situations where the international standards are violated.
To comply with these standards, TNCs should implement more stringent screening and monitoring measures. The initial supplier screening
should extend beyond the inspection of the suppliers’ records and premises. Record review or a single visit to the supplier’s factory would not
reveal, for instance, that children at the factory use their relatives’ employee numbers to appear on the books as adult workers or that the sup-
217. See TSOGAS, supra note 63, at 11 (“[T]he ‘ethical consumer,’ sensitized to human
rights and environmental issues, sees shopping as a complement to (or substitute for)
other forms of direct social activity.”).
218. McDougall, supra note 13.
219. ILC, A Future Without Child Labor, supra note 86, at 9.
220. Worst Forms of Child Labor Convention, supra note 28, art. 3.
221. Id. art. 3(d); Minimum Age Convention, supra note 84, art. 3; ILO Worst Forms
of Child Labour Recommendation (No. 190), supra note 110; ILO Minimum Age Recommendation (No. 146), supra note 95.
222. Minimum Age Convention, supra note 84, arts. 2(3), 4(2), 5(1), 7. See also ILC,
A Future Without Child Labor, supra note 86, at 9–10.
223. Roe v. Bridgestone Corp., 492 F. Supp. 2d 988 (S.D. Ind. 2007).
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plier may keep a second set of records, which easily “bamboozle”224
TNCs. To avoid this, TNCs can use accounting and social monitoring
firms experienced in evaluating supply-chain risk and compliance with
child labor standards.225 The contract with the supplier should address
this concern and include the supplier’s on-going certification of compliance with international and local child labor laws226 and a provision
giving TNCs’ representatives, such as social monitoring firms, the right
to inspect the supplier’s premises and records at any time without prior
notice to the supplier.
TNCs or their representatives should conduct follow-up visits to the
supplier’s factory. To that end, TNCs should maintain a current list of all
production sites of its suppliers. For instance, the policy of IKEA, an international furniture and home products franchise,227 requires suppliers to
disclose the locations of all production sites.228 This policy should extend
to the suppliers’ subcontractors as well. In order to ensure the accuracy
of information on child labor compliance that the suppliers provide to the
TNCs’ headquarters, TNCs may engage local unions in the monitoring
process.229 TNCs may arrange training sessions for the suppliers’ workers
to increase their awareness with respect to child labor issues. To improve
incident reporting, TNCs may establish a hotline or other anonymous
reporting system, such as an independent worker survey.230 These measures will ensure that the TNC’s management is aware of the TNC’s and
its suppliers’ labor practices and can timely respond to any potential violations.
224. Robyn Blumner, New Standards for Trade Agreements May Not Change Much,
SALT LAKE TRIB., May 26, 2007, available at http://www.nlcnet.org/article.php?id=324.
225. See, e.g., Cal Safety Compliance Corporation, http://www.cscc-online.com (last
visited Nov. 10, 2008) (providing that “CSCC is dedicated to helping our clients build
secure and socially responsible relationships with their supply chain partners”).
226. See HUMAN RIGHTS WATCH, SMALL CHANGE: BONDED CHILD LABOR IN INDIA’S
SILK INDUSTRY (2003), http://www.hrw.org/reports/2003/india/ (providing recommendations to the international community with respect to child labor policies).
227. Inter IKEA Systems B.V., http://franchisor.ikea.com (last visited Oct. 23, 2008).
228. IKEA SERVICES AB, IKEA’S POSITION ON CHILD LABOR (2003), 1, http://www.ikea.
com/ms/en_AU/about_ikea_new/about/read_our_materials/ikea_position_child_labour.p
df (“The supplier must agree to provide lists of all places of production.”).
229. See Risa L. Lieberwitz, Linking Trade and Labor Standards: Prioritizing the
Right of Association, 39 CORNELL INT’L L.J. 641, 648–49 (2006) (discussing the role of
unions in promoting labor rights).
230. See, e.g., Gap Inc., Code Hotline, http://www.gapinc.com/public/Investors/inv_
compliance_hotline.shtml (last visited Oct. 15, 2008) (describing a hotline dedicated to
reports of violations of the Code of Business Conduct).
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INTERNATIONAL CHILD LABOR REGULATION
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B. Responding to Child Labor Incidents
When a TNC discovers child labor incidents in its own or its suppliers’
labor practices, the TNC’s remedial and follow-up measures should take
into consideration children’s rights, such as the right to be free from exploitation231 and the right to survival and an adequate standard of living.232
To balance these rights, the TNC should engage the affected children in a
discussion about possible solutions to the problem233 and assure that the
best interests of the child are given a primary consideration.234 Following
this approach, TNCs may find that an instant severing of ties with a noncompliant supplier or immediate dismissal of children from the
workplace without creation of any alternatives to work may not, on balance, benefit the children.
While under certain circumstances, withdrawal and dismissal may be a
justified measure, it may not constitute a sound policy if applied alone
and without a case-by-case determination. Admittedly, withdrawal from
a relationship with a noncompliant supplier or removal of children from
work may be perceived as mitigating the TNC’s potential liability and
deterring future noncompliance on the part of other suppliers. According
to Gap Inc., for example, in 2006, it severed ties with twenty-three noncompliant factories.235 TNCs, however, are increasingly recognizing the
limitations of this approach.
The solution to the child labor problem should take into consideration
the best interests of the child and focus on creating meaningful alternatives
for children dismissed from work. The apparel and accessories retailer
H&M Hennes & Mauritz AB (“H&M”),236 for instance, reports that
when it discovers “underage workers” at its supplier’s site, H&M, in cooperation with the supplier, contacts the family of the affected child and
seeks a solution in the child’s best interests.237 One such solution has
been allowing the child to continue education and paying wages to the
child’s family during the study period until the child reaches the appro-
231. Convention on the Rights of the Child, supra note 29, art. 19.
232. Id. art. 6(2).
233. See supra note 141 and accompanying text.
234. See supra note 142 and accompanying text.
235. Press Release, Gap Inc., supra note 14.
236. H&M, About H&M, http://www.hm.com/us/abouthm__abouthm.nhtml (last visited Oct. 23, 2008).
237. H&M, Supply Chain Monitoring, What Do We Do If We Find Child Labor Being
Used?, http://www.hm.com/us/corporateresponsibility/supplychainworkingconditions/supply
chainmonitoring/whatwedoifwediscoverchildlabour__monotoringarticle4.nhtml (last visited
Oct. 23, 2008).
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priate age.238 Similarly, to address the child labor issue at its suppliers’
plants, Levi Strauss & Co., a multinational apparel company,239 made a
decision to pay for the children’s education and school supplies until
they reach a minimum age when they would be offered a job at the
plant.240 These capacity-building measures, providing resources and
creating opportunities for the implementation of child labor standards in
the local communities,241 serve the goals of child labor abolition more
effectively than mere dismissal of child laborers from work.
Development of capacity-building measures presents a fertile ground
for creative solutions. In rural areas in developing countries, for instance,
children often have to walk long distances to get to school,242 and simply
providing basic transportation may increase the chances that these children will continue attending school, as opposed to joining the workforce
too early. In identifying these solutions, TNCs may partner up with
NGOs that have experience in capacity building. Starbucks Corporation,
an international coffee retailer and coffee-house chain,243 for example,
partnered with Save the Children USA, an international relief and development organization, in bringing bilingual education to Mayan communities in Guatemala,244 which will expand the employment prospects for
children in these communities.
Although these measures increase the TNCs’ immediate cost of doing
business, such cost is unlikely to be prohibitive. Generally, compliance
programs incur costs, but are necessary for the business in order to avoid
litigation, regulatory, and reputational risks. Additionally, by operating
or otherwise doing business in jurisdictions with cheaper labor (where
incidents of child labor are more likely) TNCs already reduce their labor
costs and reap other benefits of globalization, a process that “has generated vast fortunes” for TNCs.245 The cost-benefit analysis of the measures
addressing the child labor problem should take into account this relative
reduction in overall costs, as well as other factors related to economic
disparities between developed and developing countries such as the relative cost of living. The National Labor Committee estimates that an extra
payment of twenty-five cents per garment paid by U.S. retailers to Ban238.
239.
240.
241.
242.
243.
244.
Id.
Levi Strauss & Co., http://www.levistrauss.com (last visited Oct. 23, 2008).
Compa & Hinchliffe-Darricarrère, supra note 215, at 679.
WORLD VISION UK, supra note 36, at 10.
ILO, World Day Against Child Labour, supra note 30.
Starbucks Corporation, http://www.starbucks.com (last visited Oct. 23, 2008).
STARBUCKS CORPORATION, BEYOND THE CUP: CORPORATE SOCIAL RESPONSIBILITY
FISCAL 2005 ANNUAL REPORT 6, 40 (2005).
245. Hiatt & Greenfield, supra note 71, at 40–41.
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INTERNATIONAL CHILD LABOR REGULATION
237
gladeshi vendors would provide the Bangladeshi economy with assistance eight times exceeding the current U.S. aid,246 and thus, create new
economic opportunities. In return, capacity-building measures will have
a positive long-term effect on these communities, which will benefit the
TNCs by developing the future workforce.
CONCLUSION
TNCs are increasingly becoming aware of the litigation and reputational risks posed by the use of child labor in TNCs’ and their suppliers’
international operations. There are hardly any “quick fixes”247 in this area
because child labor issues are rooted in social and economic problems
such as the lack of resources and opportunities. In developing countries,
children have to work to support themselves and their families, and thus,
child labor is a problem of development rather than merely an issue of
corporate misfeasance. This understanding is important for instilling the
need for TNCs to take measures that anticipate and address potential
child labor incidents. Using the guidance provided in treaties pertaining
to working youth, TNCs should approach child labor proactively, resist
distancing themselves from this problem, and embrace the opportunity to
create meaningful alternatives for child laborers.
Anna A. Kornikova*
246. National Labor Committee, http://www.nlcnet.org (last visited Oct. 15, 2008).
247. ACTION AGAINST CHILD LABOR 224 (Nelien Haspels & Michele Jankanish eds.,
2000).
* J.D. Candidate and Fellow at the Dennis J. Block Center for the Study of International Business Law, Brooklyn Law School; B.A. and M.A., summa cum laude, Ivanovo
State University, Russia. I thank Professor Maryellen Fullerton for her guidance and
comments on prior drafts of the Note. I am also grateful to the staff of the Brooklyn Journal of International Law for assistance in preparing this Note for publication. The views
expressed in this Note and any errors or omissions are my own. I dedicate this Note to my
parents.
WAIVERS OF INDIVIDUAL CLAIMS VIA
TREATY: CHINESE SLAVE LABORERS,
JAPANESE JURISPRUDENCE, AND THE
SOLUTION OF THE EUROPEAN COURT OF
HUMAN RIGHTS
INTRODUCTION
W
ith controversial and limited exceptions, international law provides sovereign governments with the ability to waive the
claims of their citizens that arise out of war or international conflict.1
Nations often dispense with individual claims for war reparations or
compensation by means of peace treaties with other nations, which establish the presumption of settling all outstanding issues relating to a war.2
The reasons for this are logical and imposing: governments require the
flexibility to establish peace and rebuild societies following eras of warfare and turmoil, and the relinquishment of all war claims is often essential to the attainment of such goals.3 If war-torn and dismantled postwar
1. Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 468 (D. N.J. 1999) (“It is wellestablished that countries can waive the war-related claims of their citizens.”); ARNOLD
DUNCAN MCNAIR, LEGAL EFFECTS OF WAR 391 (3d ed. 1948) (“[I]t appears that international law treats a state as being invested for international purposes with complete power
to affect by treaty the private rights of its nationals, whether by disposing of their property, surrendering their claims, changing their nationality, or otherwise.”).
2. Id. See also Ware v. Hylton, 3 U.S. 199, 230 (1796) (“I apprehend that the treaty
of peace abolishes the subject of the war, and that after peace is concluded, neither the
matter in dispute, nor the conduct of either party, during the war, can ever be revived, or
brought into contest again. All violences, injuries, or damages sustained by the government, or people of either, during the war, are buried in oblivion; and all those things are
implied by the very treaty of peace; and therefore not necessary to be expressed.”).
3. See Dames & Moore v. Regan, 453 U.S. 654, 679 (1981) (“Not infrequently in
affairs between nations, outstanding claims by nationals of one country against the government of another country are ‘sources of friction’ between the two sovereigns. To resolve these difficulties, nations have often entered into agreements settling the claims of
their respective nationals. As one treatise writer puts it, international agreements settling
claims by nationals of one state against the government of another ‘are established international practice reflecting traditional international theory.’”). See also Andrea Gattini,
To What Extent are State Immunity and Non-Justiciability Major Hurdles to Individuals’
Claims for War Damages, 1 J. INT’L. CRIM. JUST. 348, 365 (2003) (“[T]aking into account the main objective of [peace treaties] which is to re-establish a state of peace and, if
possible, friendly relations between states in the interest of their communities, it seems
inconceivable that any individual could disturb or even disrupt the whole process of
peacemaking for pecuniary satisfaction of a purported right, whose foundation in interna-
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nations expend their limited resources and are substantially occupied
with defending themselves from numerous lawsuits, it would be very
difficult for such nations to ever reestablish social, economic, and political security, much less attain a state wherein they could flourish.4 However, with the increasing emphasis on human rights in international law,5
scholars and jurists are beginning to rethink the premise behind allowing
governments to waive these individual claims, and serious concerns have
been expressed as to the premise’s legality and fairness, especially in
cases of grave human rights violations or breaches of jus cogens norms.6
In balancing the legitimate concerns of governments in waiving claims
against an individual’s right to bring suit for harms suffered, the question
remains as to whether a sovereign nation’s ability to waive such claims
may be infringed, particularly when the underlying harm to a plaintiff is
an egregious breach of a jus cogens norm.7
tional law is still dubious.”); Dinusha Panditaratne, Rights-Based Approaches to Examining Waiver Clauses in Peace Treaties: Lessons from the Japanese Forced Labor Litigation in Californian Courts, 28 B.C. INT’L & COMP. L. REV. 299, 327 (2005) (“[T]here
may be instances where a waiver of human rights claims may be indispensable in bringing about the conclusion of a war or other international crisis. In these circumstances, a
government may need to agree to a waiver clause, even though the resulting impunity
will undoubtedly be painful to bear for those persons who have suffered at the hands of
that state and its nationals . . . .”).
4. See supra note 3 and accompanying text.
5. Regarding the rise of human rights in international law, Lord Millett explains:
The fundamental human rights of individuals, deriving from the inherent dignity of the human person, ha[ve] become a commonplace of international law.
Article 55 of the Charter of the United Nations [i]s taken to impose an obligation on all states to promote universal respect for and observance of human
rights and fundamental freedoms. The trend [i]s clear. War crimes ha[ve] been
replaced by crimes against humanity. The way in which a state treat[s] its own
citizens within its own borders ha[s] become a matter of legitimate concern to
the international community.
Regina v. Bow St. Metro. Stipendiary Mag., Ex Parte Pinochet Ugarte, 1 A.C. 147, 275
(1999).
6. See Gattini, supra note 3, at 349 (“[I]t is necessary to somehow restrict [a government’s ability to waive its citizens’ claims], in particular through the qualification that
the state’s renunciation is invalid, should it be made with regard to injury caused by a
grave violation of peremptory norms.”). See also Panditaratne, supra note 3, at 327
(“[J]udges should articulate the varied policy considerations at stake and, in particular,
remain mindful of upholding their responsibility to protect individual human rights to the
extent possible. Judges should protect rights in a manner reconcilable with the text of the
waiver clause, while adopting an approach consistent with judicial precedent.”).
7. See Michael Winn, Note, Peace Treaty Claim Waivers: The Case of Prince HansAdam II of Liechtenstein and the “Scene at a Roman Well,” 38 GEO. WASH. INT’L L. REV.
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In 2001, the European Court of Human Rights (“ECHR”) struggled
with the issue of whether to invalidate a peace treaty claim waiver in the
case Prince Hans-Adam II of Liechtenstein v. Germany (“Liechtenstein”), in which the plaintiff, a monarch of Liechtenstein, attempted to
reclaim property confiscated by the Czech Republic (part of the former
Czechoslovakia) in the period following World War II (“WWII”).8 The
ECHR echoed several previous local German courts’ decisions that
barred the prince’s claim based on a 1952 treaty between three of the
Allied Powers and Germany9 in which Germany relinquished all claims
relating to property or assets appropriated by other nations following the
war.10 In determining whether the 1952 agreement had legitimately
waived the plaintiff’s claims, the ECHR utilized a test, which provides
that any limitation on a plaintiff’s claim—in this case, the treaty waiver—must not “restrict or reduce the access left to the individual in such a
way or to such an extent that the very essence of the right [to bring the
claim] is impaired.”11 Furthermore, the test requires that the limitation a
government imposes on a plaintiff’s claim must “pursue a legitimate aim
and . . . [have] a reasonable relationship of proportionality between the
means employed and the aim sought to be achieved.”12 Thus, restated
simply, the ECHR’s “legitimate aim” test consists of the following three
elements, which, if not met by the waiving nation, require a court to
deem its treaty waiver invalid: (1) the waiver must seek a legitimate aim;
(2) the waiver must be reasonably proportional to that legitimate aim;
and (3) the “very essence” of the claim must not be impaired by the
waiver.13
On the other side of the world, this issue is deeply felt, as many WWIIera Chinese slave labor victims have been bringing claims in Japanese
807, 826 (2006) (“Legal scholars contest the legal limits of a state’s right to waive claims
on the basis of treaty.”).
8. Prince Hans-Adam II of Liech. v. F.R.G., App. No. 42527/98, 2001-VIII Eur. Ct.
H.R. 1, 3 (2001).
9. Convention on the Settlement of Matters Arising Out of the War and the Occupation, May 26, 1952, 332 U.N.T.S. 219 [hereinafter Convention on the Settlement].
10. Liech., 2001-VIII Eur. Ct. H.R. 1, at 19–20. For a critique and discussion of the
ECHR’s decision in Liechtenstein, see Winn, supra note 7.
11. Liech., 2001-VIII Eur. Ct. H.R. 1, at 23.
12. Id.
13. See id. Andrea Gattini restates the elements of the ECHR’s “legitimate aim” test
as follows: “[R]estrictions on access to justice are [lawful], where (a) they pursue a legitimate aim; (b) they are proportionate to the aim pursued; and (c) they do not restrict the
right to the point of extinguishing it.” Andrea Gattini, A Trojan Horse for Sudeten
Claims? On Some Implications of the Prince of Liechtenstein v. Germany, 13 EUR. J.
INT’L L. 513, 530 (2002).
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courts against the Japanese government and certain Japanese corporations since the 1990s, all in the face of a waiver of claims by the Chinese
government.14 Defendants in these slave labor15 lawsuits have often succeeded in having the plaintiffs’ claims dismissed based on the Chinese
government’s renunciation of war reparations16 expressed in a 1972 Joint
Communiqué 17 and ratified in the 1978 Treaty of Peace and Friendship
between Japan and the People’s Republic of China.18 Courts have frequently determined that, despite the treaty waiver’s ambiguity with regard to individual claims, it nevertheless precludes them.19 For more than
a decade, the Supreme Court of Japan failed to comment on the issue of
14. For a detailed discussion and history of the Chinese slave labor lawsuits in Japan,
see Timothy Webster, Note, Sisyphus in a Coal Mine: Responses to Slave Labor in Japan
and the United States, 91 CORNELL L. REV. 733 (2006). Some Chinese slave laborers, as
well as American POWs and primarily Korean sex slaves of the Japanese military (socalled “jūgun-ianfu” or “military comfort women”), have also sought recourse in U.S.
courts. See id. at 755–58. For an in-depth discussion of WWII slave labor lawsuits in U.S.
courts, see John Haberstroh, Note, In re World War II Era Japanese Forced Labor Litigation and Obstacles to International Human Rights Claims in U.S. Courts, 10 ASIAN
L.J. 253 (2003).
15. Like Timothy Webster, see supra note 14, this Note chooses to use the terminology “slave labor” as opposed to the euphemistic phrase “forced labor” (“kyōsei rōdō”)
often utilized by Japanese courts when describing the activity suffered by the Chinese
plaintiffs during WWII. See, e.g., Chinese Victims of Forced Labor v. Mitsui Mining,
1809 HANREI JIHŌ 111 (Fukuoka Dist. Ct., Apr. 26, 2002). The opening caption to the
case reads: “[t]his case admits claims based in tort for damages by Chinese individuals
forcibly taken to Japan during the Pacific War [WWII] and made to perform forced labor
in coal mines (and other venues) against the coal mining firms [under which they worked
during the war].” Id. at 111 (emphasis added) (author’s translation).
16. See Shin Hae Bong, The Right of War Crime Victim to Compensation Before
National Court: Compensation for Victims of Wartime Atrocities: Recent Developments
in Japan’s Case Law, 3 J. INT’L CRIM. JUST. 187, 190 (2005) (“In many cases, the government of Japan has successfully invoked [China’s waiver of war reparations] to insist
that the matter of war reparations had already been resolved between [China and Japan]
and that inter-governmental agreements preclude individuals’ claims for compensation.”).
17. Joint Communiqué of the Government of Japan and the Government of the
People’s Republic of China (1972), available at http://www.mofa.go.jp/region/asiapaci/china/joint72.html (last visited Oct. 31, 2008) [hereinafter Joint Communiqué].
18. Treaty of Peace and Friendship between Japan and the People’s Republic of China
(1978), available at http://www.cn.emb-japan.go.jp/bilateral_e/bunken_1978joyaku_e.htm (last
visited Oct. 31, 2008) [hereinafter Treaty of Peace and Friendship].
19. See William Gao, Note, Overdue Redress: Surveying and Explaining the Shifting
Japanese Jurisprudence on Victims’ Compensation Claims, 45 COLUM. J. TRANSNAT’L L.
529, 536 (2007) (“Japanese courts most commonly dismiss [war] compensation suits
based on bilateral agreements between Japan and the plaintiff’s nation of origin. The
rationale is that such bilateral agreements effectively resolve questions of compensation
between the two nations and preclude individual claims.”).
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war reparations for victims of Japanese slave labor and the treaty waiver
of 1972.20 However, in the landmark decision of Lü Zhigang v. Nishimatsu
Construction (“Nishimatsu”) in April 2007, the Court dismissed the
claims of Chinese slave laborers, reversing the decision of the Hiroshima
High Court in the plaintiffs’ favor, and concluding that Chinese WWII
victims are estopped from bringing claims owing to the waiver, despite
its ambiguity.21
Following this Introduction, Part I of this Note reviews the traditional
interpretation of treaty waivers in international law and an important potential exception to the rule that continues to gain influence as international law develops and human rights become a more paramount concern.
Part II discusses the Liechtenstein case and the ECHR’s legitimate aim
test. Part III provides background on the Japanese slave labor situation
and reviews several key Japanese decisions that have interpreted the
Chinese treaty waiver, culminating with an assessment of the Nishimatsu
Japanese Supreme Court case. Part IV uses the Japanese slave labor situation as a test case for the ECHR’s legitimate aim analysis, concluding
that the test tends to favor the Chinese plaintiffs and allows them to override their government’s treaty waiver. In conclusion, this Note argues
that when a treaty waiver is ambiguous and its scope undefined,22 the
legitimate aim test can serve as a viable method for courts to balance the
20. William Gao notes that currently there are increasing limitations on appellate
review within the Japanese legal system, which make it ever more difficult for lower
court decisions to obtain supreme court review. Id. at 545–46.
21. Lü Zhigang v. Nishimatsu Constr., 1969 HANREI JIHŌ 31 (Sup. Ct., Apr. 27,
2007), available at http://www.courts.go.jp/hanrei/pdf/20070427134258.pdf.
22. Cf. Gattini, supra note 3, at 366 (“[I]t is usual for states to be extremely careful to
specify the exact purport of their will, i.e. whether they intend to dispose only of their
claims; of all possible claims of their citizens under domestic law; to bar access to domestic courts without disposing of the substantive right; or to waive only the exercise of
diplomatic protection. The admissibility of civil actions before a domestic court must
then be judged in light of the specific compact.”). As Gattini suggests, clarity is essential
in the adjudication of claims relating to treaty waivers, and governments are indeed cognizant of the fact, using highly specific language to express their will. Since governments
require predictable rules to follow when establishing peace, this Note limits the application of the legitimate aim test only to situations where the treaty waiver is ambiguous.
Thus, if the threshold question of ambiguity in a waiver provision is not met, this Note
would argue that, for efficiency reasons, the test should not be applied at all. This requirement of provision clarity encourages governments to be explicitly clear as to what
exactly is being waived, and allows them a framework for drafting these waivers with the
confidence that the floodgates of litigation involving individual claims will not be unleashed following a war.
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traditional governmental ability to waive claims against an individual’s
right to bring claims.23
I. TREATY WAIVERS IN INTERNATIONAL LAW
A. General Principles of Treaty Interpretation
The 1969 Vienna Convention on the Law of Treaties (“Vienna Convention”) is generally acknowledged as the “codification of the customary
international law governing treaties” and serves as binding international
law even for nations that are nonsignatories.24 It provides that treaties are
to be “interpreted in good faith in accordance with the ordinary meaning
to be given to the terms . . . in their context and in the light of [their] object and purpose.”25 The U.S. Supreme Court reiterated this principle by
affirming that, when interpreting the terms of a treaty, “clear import . . .
controls” unless applying the plain meaning of the language would be
incongruous with the “intent or expectations” of the parties.26 It follows
that generally, like all contracts, unless the context and intent of the parties clearly dictate otherwise, the “ordinary meaning” and “clear import”
of treaty provisions are to be strictly observed.27 In instances where a
plain reading of the language fails to yield conclusive answers, deference
should be given to the interpretations of the sovereign governments that
are parties to the treaty,28 especially when both parties agree to the same
interpretation.29
23. The question of whether victims of war crimes have the initial right to bring
claims under international law, either under a treaty provision such as Article 3 of the
Hague Convention, or under customary international law, is outside of the scope of this
Note. The issues entertained herein assume that the plaintiffs discussed already have such
a right; the essential question is whether a treaty waiver barring such a right may be overcome.
24. MICHAEL BYERS, WAR LAW: UNDERSTANDING INTERNATIONAL LAW AND ARMED
CONFLICT 5 (2005).
25. Vienna Convention on the Law of Treaties art. 31(1), May 23 1969, 1155
U.N.T.S 331 [hereinafter Vienna Convention].
26. Sumitomo Shoji v. Avagliano, 457 U.S. 176, 180 (1982).
27. Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 457 (D.N.J. 1999) (citing numerous sources).
28. Sumitomo, 457 U.S. at 184–85.
29. Id. at 185. Interestingly, in order to determine parties’ intent, the United States
has shown more of an inclination than other countries to look outside of the plain language of treaty provisions and interpret them within the larger context of their drafting.
See BYERS, supra note 24, at 46. In fact, the U.S. delegation to the Vienna Convention
urged the other countries at the convention to codify this method of interpretation, but the
overwhelming majority of the participants rejected it, and instead, agreed upon the “ordi-
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B. Claim Waivers via Treaty
Under traditional principles of international law, sovereign nations
have the power to relinquish the claims of their citizens through effecting
peace treaties.30 The policy justifications for this are obvious: governments require the ability to efficiently orchestrate and reestablish beneficial
economic and collegial relationships with other nations through mutual
negotiation and compromise, particularly following an era of warfare, in
order to establish overall peace, cooperation, and international concord.31
Accordingly, the goals of a sovereign nation are often furthered by relinquishing certain rights, including the individual rights of its citizens, in
exchange for benefits that help establish the welfare of its people and
security in the international community.32 A prime example of the traditional international rule is expressed in Ware v. Hylton, the first U.S. Supreme Court case pertaining to the issue.33 In Ware, which involved a
British subject’s claims against an American citizen for damages that
arose out of the War of Independence, Justice Chase held: “All . . . injuries or damages sustained by the government, or people of either, during
the war, are buried in oblivion; and all those things are implied by the
very treaty of peace, and therefore not necessary to be expressed.”34
Ware therefore illustrates that, traditionally, international law considers
individual claims resulting from war-time activity to be automatically
dissolved by a government’s signing of a peace treaty, there ultimately
being no need for a sovereign nation to waive such claims expressly.35
nary meaning” interpretation, which was ultimately adopted by the Vienna Convention.
Id.; Vienna Convention, supra note 25, art. 31(1).
30. See supra notes 1–2 and accompanying text.
31. See supra note 3 and accompanying text.
32. See Dames & Moore v. Regan, 453 U.S. 654, 679 (1981) (discussing the benefits
for governments in waiving the individual claims of their citizens as a means of resolving
postwar discord between nations).
33. Ware v. Hylton, 3 U.S. 199 (1796).
34. Id. at 230 (emphasis added).
35. Andrea Gattini argues that the primary concern of courts when dealing with
claims waived through international settlement is that they are perceived as inherently
nonjusticiable, even if the judges deciding the cases do not expressly enunciate this view.
She states, “Even if the [nonjusticiability] argument is not always clearly articulated,
domestic courts are aware that the complex issues of post war settlements exceed the
scope of their jurisdiction and should therefore be left to governments, which are in a
better position to reach overall satisfactory and internationally binding settlements.”
Gattini, supra note 3, at 384.
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Undoubtedly, international law has developed since Ware,36 but its essential principle—that through enacting treaties, governments have control over the war-related claims of their citizens—is still the prevailing
view.37 In fact, Ware was recently cited in Hwang Geum Joo v. Japan, a
2006 decision of the Court of Appeals for the District of Columbia involving claims against Japan by WWII-era “military comfort women”
from various East Asian countries (including China).38 In Hwang, the
court explained: “[c]ontrary to [the Ware rule], the [“military comfort
women”] insist the treaties between Japan and [their nations] preserved
the claims of individuals by failing to mention them.”39 The D.C. Circuit
was unsympathetic to their argument, however, refusing to interpret the
respective treaty provisions, and dismissing their claims as involving
nonjusticiable political questions.40
In contrast with the traditional rule allowing governments complete jurisdiction over their citizens’ claims, a noted scholar of international law
has remarked: “[t]he right of states to dispose of claims is increasingly
being challenged.”41 This results in part from an increasing worldwide
36. See Rudolf Dolzer, The Settlement of War-Related Claims: Does International
Law Recognize a Victim’s Private Right of Action? Lessons After 1945, 20 BERK. J. INT’L
L. 296, 297 (2002) (arguing that “the classical approach, which considers war-related
individual claims as being subsumed by the intergovernmental arrangements for peace,”
has undergone “revolutionary” changes in recent years).
37. See, e.g., Burger-Fischer v. Degussa, 65 F. Supp. 2d 248, 273–74 (D.N.J. 1999).
Burger-Fischer uses Ware as the basis for part of its decision to dismiss the treaty-waived
claims of Nazi slave labor victims and holds that, “under international law[,] claims for
compensation by individuals harmed by war-related activity belong exclusively to the
state of which the individual is a citizen.” Id. at 273. Therefore, under Burger-Fischer, a
nation’s power over its citizens’ war compensation claims is taken a step further, from
control to ownership, i.e., “belong[ing] exclusively to the state.” Id.
38. Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C. Cir. 2006).
39. Id. at 51.
40. Id. at 51–53.
41. Gattini, supra note 3, at 350. See also Dolzer, supra note 36, at 297. Dolzer discusses a progressive trend away from the traditional rule and toward an emphasis on the
individual’s right to adjudicate claims:
A decade ago, it would have been generally understood that only the classical
approach, which considers war-related individual claims as being subsumed by
the intergovernmental arrangements for peace, was consistent with international law as reflected in practice and doctrine. However, the 1990s have witnessed
a remarkable, and in some respects revolutionary, attempt to restructure the
classical approach to peacemaking and the resolution of matters relating to the
international consequences of war. In what may be described as an attempt to
replace the traditional exclusive government-to-government process of negotiating a comprehensive peace treaty, efforts were undertaken to adjudicate
claims by individuals before regular courts of law.
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sensitivity regarding human rights issues, as codified in international
agreements,42 and the perception that individuals possess complete ownership of their own right to bring compensation claims for wrongs they
have suffered.43 Although there is little evidence to indicate that courts
are following this ideological shift, and no clear indication of the restrictions, if any, imposed upon a government’s ability to waive individual
claims via treaty,44 one compelling theory of limitation on the traditional
rule is the jus cogens exception.45
C. The Jus Cogens Exception
Perhaps the most persuasive potential limitation on governmental
waivers of claims is the proposition that individual claims for breaches of
jus cogens norms cannot be waived.46 Jus cogens norms, also commonly
referred to as “peremptory norms,” are a body of the most supreme human rights protections considered common to and binding upon all naId.
42. See Regina v. Bow St. Metro. Stipendiary Mag., Ex Parte Pinochet Ugarte, 1 A.C.
147, 275 (1999).
43. Jon M. Van Dyke, The Fundamental Human Right to Prosecution and Compensation, 29 DENV. J. INT’L L. & POL’Y 77, 86 (2001) (“[C]laims based on violations of law
are a form of property that cannot be cavalierly waived by a nation . . . .”).
44. Winn, supra note 7, at 826, 829.
45. See id. at 829. Winn mentions an “alternative forum principle” as another possible
limitation on a government’s ability to waive claims:
[An] alternative forum principle . . . requires a state to offer an alternative forum such as a special tribunal [in exchange for waiving claims]. . . . An alternative forum serves a middle ground. . . . While the individual retains at least
some right to bring a claim, the waiving state serves its interests in judicial efficiency and minimization of potentially aggravating claims by raising the burden of proof or by offering less stringent procedural protections to the claimant.
Id. at 827–28. In Dames & Moore v. Regan, 453 U.S. 654 (1981), the U.S. Supreme
Court seemed to apply a version of this principle when it held that the executive branch
of the U.S. government had legally waived the claims of its citizens taken hostage in Iran
by creating a separate arbitration “claims tribunal” where the aggrieved could bring their
claims. Id. at 686–87 (“Our conclusion [that the president legitimately waived the plaintiffs’ claims against Iran] is buttressed by the fact that the means chosen by the President
to settle the claims of American nationals provided an alternative forum, the Claims Tribunal, which is capable of providing meaningful relief.”). However, Winn contends that
this rule is probably limited to claims of foreign individuals waived by executive order,
and that war compensation claims waived by treaty are not within its scope. See Winn,
supra note 7, at 828.
46. See Van Dyke, supra note 43, at 86 (“Treaties and amnesty agreements purporting to waive claims [for violations of basic norms of human decency] or exonerate human
rights abusers . . . have no . . . validity . . . .”).
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tions.47 Generally accepted jus cogens norms include prohibitions against
military aggression, genocide, racial discrimination, torture, and slavery.48 Even before the nomenclature came into popular usage, the concept underlying jus cogens norms carried weight among judges, who began to characterize certain rights as “fundamental,” “inherent,” or “inalienable.”49 The Vienna Convention codifies the concept and defines a
jus cogens norm as “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.”50 The Vienna Convention
further states that any treaty conflicting with a jus cogens norm is per se
invalid.51 Therefore, though creatures of customary international law, jus
cogens norms are such significant human rights safeguards that they
override any conflicting treaty provision, even trumping the “clear import”
interpretation rule of treaties.52 As an example, two bordering nations
cannot contract through treaty to jointly massacre an unwelcome ethnic
minority population common to both nations; the jus cogens norm
against genocide would render their treaty null and void under international law.53
Despite the significance and weight of jus cogens norms in international law, it remains unclear whether claim waivers for their violation can or
should be invalidated.54 Notwithstanding this lack of clarity, there is considerable support for the proposition that courts should not allow governments to waive jus cogens claims, the most influential of which is the
47. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 488–90 (Oxford
1966) (6th ed. 2003).
48. See id. at 488–89; RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 702, cmt.
n (1987) (“Not all human rights norms are peremptory norms (jus cogens), but those in
clauses (a) to (f) of this section [including clause (b), ‘slavery or slave trade,’] are, and an
international agreement that violates them is void.”); International Law Commission,
Articles on Responsibility of States for International Wrongful Acts (2001), art. 40, cmts.
4–5, available at http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf
[hereinafter Articles on Responsibility of States]. Among a number of generally accepted
peremptory norms, the Commission lists prohibitions against “slavery and the slave trade,
genocide, and racial discrimination and apartheid.” Id. art. 40, cmt. 4.
49. See BROWNLIE, supra note 47, at 488.
50. Vienna Convention, supra note 25, art. 53.
51. Id. (“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”).
52. See Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 457 (D.N.J. 1999) (discussing the “clear import” interpretation rule of treaties).
53. See BROWNLIE, supra note 47, at 489.
54. See Winn, supra note 7, at 829.
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work of the International Law Commission (“ILC”).55 In 2001, in its efforts to restate the international law regarding wrongful acts committed
by sovereign nations, the ILC adopted the Articles on Responsibility of
States for International Wrongful Acts (“Articles on Responsibility of
States”).56 Article 40 of this work deals with state liability for breaches of
jus cogens norms.57 Article 41 provides that “[n]o state shall recognize as
lawful a situation created by a serious breach within Article 40, nor render
aid or assistance in maintaining that situation.”58 The ILC’s commentary
to Article 41 illuminates the Article’s intent by interpreting it to mean
that not only are breaches of jus cogens norms unlawful, but even a
State’s ratification, whether explicit or implicit, of a previous breach is
unacceptable, as it offends international principles and sentiments.59
Comment 9 to Article 41 specifies that an injured state cannot sanction
harm sustained from another nation’s breach of a jus cogens norm, “since
the breach by definition concerns the international community as a whole
[and] waiver or recognition induced from the injured State by the responsible State cannot preclude the international community interest in
ensuring a just and appropriate settlement.”60 Therefore, according to
the ILC’s rationale, claims for grave violations of human rights cannot be
waived, as each and every violation is an international concern, not only
a matter among several states, and the conscience of the international
community would only be offended by neglecting to remedy, or at least
entertain the claim for, such a breach.
Certain courts and judges have echoed the ILC’s sentiments in limiting
a nation’s ability to escape accountability for breaches of jus cogens
norms. For example, in Regina v. Bow Street Metropolitan, a case of the
British House of Lords dealing with torture claims against a former Cuban
head of state, the court rejected the defendant’s argument that he was
exempt from liability under the doctrine of sovereign immunity.61 Lord
55. In order to actualize Article 13 of the U.N. Charter, which delegates to the General Assembly the obligation to “initiate studies and make recommendations” toward international cooperation and international law’s development and codification, U.N. Charter
art. 13, para. 1, the General Assembly established the International Law Commission in
1947 for the “promotion of the progressive development of international law and its
codification.” G.A. Res. 174 (II), U.N. Doc. A/519 (Nov. 21, 1947).
56. Articles on Responsibility of States, supra note 48.
57. Id. art. 40.
58. Id. art. 41.
59. Id. art. 41, cmts. 1–14.
60. Id. art. 41, cmt. 9 (emphasis added).
61. Regina v. Bow St. Metro. Stipendiary Mag., Ex Parte Pinochet Ugarte, 1 A.C.
147 (1999). Under the traditional doctrine of sovereign immunity, a nation (or one of its
official representatives) acting within its “sovereign character” will not be made subject
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Phillips stated: as “torture is prohibited by international law and . . . the
prohibition against torture has the character of jus cogens[,] . . . it is . . .
accepted that officially sanctioned torture is forbidden by international
law.”62
In Al-Adsani v. United Kingdom,63 although the ECHR refused to deny
Kuwait’s sovereign immunity defense against a torture claim, eight of
the seventeen judges dissented, arguing that as a rule of jus cogens, and
therefore “hierarchically higher than any other rule of international law,”
a torture claim overrides a government’s ability to disregard it and to
escape liability by invoking the sovereign immunity defense.64 Although
these European cases deal primarily with the sovereign immunity defense, not treaty waivers, they are emblematic of the trend in international law reflected in the substance of the ILC’s Articles on Responsibility
of States. They echo the ILC’s premise that governments should not be
allowed to disregard or ratify claims for breaches of jus cogens norms.65
Judging from this trend, a persuasive argument can be made that governments must not be permitted to waive the claims of their citizens
when such claims are for breaches of jus cogens norms, as international
law regards them as supreme—almost sacred—rules with powerful overriding capabilities.66
to the jurisdiction of a foreign court without such nation’s consent. See Schooner Exchange
v. McFaddon & Others, 11 U.S. 116, 123–25 (1812). However, this doctrine has largely
given way in modern times to a more limiting theory of sovereign immunity, where a
nation will be unable to invoke the defense for acts arising out of its capacity as a commercial player. E.H. Schopler, Annotation, Modern Status of the Rules as to Immunity of
Foreign Sovereign from Suit in Federal or State Courts, 25 A.L.R. 3d 322 § 2 (1969)
(“Growing concern for individual rights and public morality, coupled with the increasing
entry of governments into what had previously been regarded as private pursuits, has led
a substantial number of nations to abandon the absolute theory of sovereign immunity in
favor of a restrictive theory, under which a foreign sovereign is not granted immunity
from suit where the action arises out of its commercial activities, as distinguished from
acts done in its sovereign capacity.”).
62. Regina, 1 A.C. at 290 (emphasis added).
63. Al-Adsani v. U.K., App. No. 35763/97, 2001-XI Eur. Ct. H.R. 79 (2001).
64. Id. at 111–12 (Rozakis, J., Caflisch, J., Wildhaber, J., Costa, J., Cabral Barreto, J.,
& Vadic, J. dissenting).
65. See Articles on Responsibility of States, supra note 47, art. 41, cmt. 9.
66. Andrea Gattini argues that, even if international law does not yet recognize claims
for violations of jus cogens norms that have been waived by a claimant’s nation, the acknowledgment of such claims could ensure legitimate international settlements:
[G]overnments . . . are in a [good] position to reach overall satisfactory and internationally binding settlements. It does not, however, follow that states are
free to waive any claim and to reach any settlement: they may not reciprocally
condone violations of those rules of humanitarian law which belong to jus co-
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II. THE ECHR’S “LEGITIMATE AIM” TEST: PRINCE HANS-ADAM II OF
LIECHTENSTEIN V. GERMANY
A. Background of the Prince’s Claims and Chapter 6 of the Convention
on the Settlement of Matters Arising Out of the War and the Occupation
Prince Hans-Adam II’s claims arose out of events immediately following WWII.67 His father, a monarch of the German-speaking state of
Liechtenstein, which was a neutral power during the war, owned a castle
in the territory of present-day Czech Republic, in which were kept family
treasures dating back to at least the eighteenth century, including a cherished family painting, Szene an einem römischen Kalkofen (“the
Szene”).68 In 1945, the Czechoslovak government issued “the Beneš Decrees,” one of which, “Decree no. 12,” allowed for the “confiscation and
accelerated allocation” of certain German-owned property remaining
within the Czechoslovak territory in order to fulfill war reparations for
the harms caused by Germany during the war. 69 Thereafter, the Czechoslovak government confiscated the prince’s family castle, along with its
accompanying personal property, including the Szene.70 In 1951, the
prince’s father, in an attempt to reclaim his property, brought suit in the
Bratislava Administrative Court, which dismissed his petition, interpreting the monarch as a German national within the meaning of the Beneš
Decrees, and therefore subject to the confiscation measures therein.71
In 1952, France, Germany, the United Kingdom, and the United States
signed the Convention on the Settlement of Matters Arising Out of the
War and the Occupation (“Settlement Convention”).72 Chapter 6 of the
Settlement Convention states that Germany shall “in the future raise no
objections against the measures which have been, or will be, carried out
with regard to German external assets or other property . . . seized . . . by
the Three Powers with other Allied countries, neutral countries or former
allies of Germany.”73 Chapter 6 thus waives claims regarding German
gens. In such situations, individuals’ claims, although dubiously founded in international law, could have the beneficial effect of spurring states to reach settlements consistent with international law.
Gattini, supra note 3, at 348.
67. Prince Hans-Adam II of Liech. v. F.R.G., App. No. 42527/98, 2001-VIII Eur. Ct.
H.R. 1, 9–10 (2001).
68. Id. at 9.
69. Id.
70. Id.
71. Id. at 9, 28–29.
72. Convention on the Settlement, supra note 9.
73. Id. ch. 6, art. 3(1).
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property seized outside of its borders in the aftermath of WWII. Furthermore, Chapter 6 affirms that “[n]o claim or action shall be admissible against [. . .] international organizations, foreign governments or persons . . . ” and is therefore unambiguous and express, clearly denoting
that all German claims with regard to confiscated external property, including individual claims, are to be relinquished.74
In 1991, the prince discovered that the City of Brno, Czech Republic,
loaned the Szene to the Cologne municipality, and he obtained an interim
injunction from the Cologne Regional Court ordering the Szene to be
delivered to a temporary bailiff.75 From 1992 to 1998, the prince fiercely
litigated through the German courts in an attempt to reclaim his father’s
painting.76 However, the German courts consistently found that Chapter
6 of the Settlement Convention waived his claims, agreeing with the
1951 Bratislava Administrative Court decision that interpreted the monarchs as German nationals.77
B. The ECHR Appeal and the “Legitimate Aim” Test
In 1998, the prince filed an appeal with the European Court of Human
Rights, claiming, inter alia, that by dismissing his claims on the basis of
Chapter 6, the German courts had unfairly restricted his right of access to
the courts and thereby violated Article 6 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms (“European
Convention”).78 The ECHR found that under its body of case law, the
right of access to the court expressed in Article 6 of the European Convention may be subject to limitations.79 Placing the burden of proof on
the waiving nation, the court proposed that in order to validate a limitation on an individual’s right of access to the courts, three elements need
to be proved: (1) the limitation needs to pursue a legitimate aim; (2) such
legitimate aim and the means employed to secure it must bear a “reasonable relationship of proportionality” to each other; and (3) the limitation
must not completely obliterate or impede the “very essence” of the individual’s right of access to the court.80 Therefore, in order to determine
74. Id. ch. 6, art. 3(3) (emphasis added).
75. Liech., 2001-VIII Eur. Ct. H.R. 1, at 10.
76. Id. at 10–15.
77. Id.
78. Id. at 21. Article 6 of the Convention reads in pertinent part: “[i]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing . . . .” European Convention for the Protection of
Human Rights and Fundamental Freedoms art. 6(1), Nov. 4, 1950, 213 U.N.T.S. 221.
79. Liech., 2001-VIII Eur. Ct. H.R. 1, at 23.
80. Id.
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whether the claim waiver expressed in Chapter 6 of the Settlement Convention validly waived the prince’s claims, the ECHR applied this “legitimate aim” test.81
With regard to the first prong, the ECHR determined that Germany had
a legitimate aim in waiving claims for postwar property confiscation via
Chapter 6 of the Settlement Convention.82 It found that the Allied Powers’ victory and occupation of Germany immediately following the war
stripped the defeated power of its sovereignty and consigned it “under
the supreme authority of the [Allied Powers].”83 Indeed, the Allied Powers retained the ability to exercise broad rights over Germany and maintained military forces therein.84 Considering this backdrop, Germany at
the time of the Settlement Convention could hardly afford to negotiate
with the Allies on equal terms and at arm’s length; instead, it was in a
highly compromised position, forced to barter for the return of its very
sovereignty over its internal and external affairs.85 Under these circumstances, Germany’s waiver of individual property claims expressed in
Chapter 6 was proper in light of the legitimate aim to re-secure its national sovereignty.86
The ECHR also found the second prong, the proportionality requirement, fulfilled as to the legitimate aim of recovering state sovereignty.87
In weighing the interests of the prince in bringing his claim against the
legitimate aim of the government in achieving sovereignty and unity, the
court “attache[d] particular significance to the nature of the applicant’s
property claims in respect of the painting . . . .”88 It held that an interest
in litigating such claims “was not sufficient to outweigh the vital public
interest in regaining sovereignty and unifying Germany.”89 In consequence, the means of terminating property claims using the Chapter 6
waiver was found proportionate to Germany’s legitimate aim of attaining
sovereignty.90
As to the third prong of the legitimate aim test, whether the limitation
frustrates the “very essence” of the individual’s claim, the ECHR determined that the waiver did not impair the essence of the prince’s right to
81.
82.
83.
84.
85.
86.
87.
88.
89.
90.
Id. at 25–31.
Id. at 27.
Id. at 25–26.
Id.
Id. at 26–27.
Id. at 27.
Id. at 29.
Id. at 28.
Id. at 29.
Id.
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bring his claim.91 Although the court did not provide a clear analysis of
this prong,92 the basis of its determination can be inferred from its suggestion that there was a more proper forum for the prince’s claim—to
wit, the Czech or Slovak Republics—and that his father had already
brought his claim in Czechoslovakia in 1951.93 The ECHR appeared to
suggest that if there were another forum that the claimant has (or had)
access to, the “very essence” of his or her right would not be frustrated.94
Accordingly, since the prince’s father had already brought the claim before the Bratislava Administrative Court, the ECHR determined that the
“very essence” of his right had not been impaired by the waiver.95 As a
result of the court’s findings, the waiver of Chapter 6 was upheld as valid
over the prince’s claim.96
Although it is questionable whether the ECHR’s legitimate aim test
was correctly or fairly applied in the Liechtenstein case,97 it could still
serve as an effective method for balancing the interests of individuals in
bringing their war-related claims against the governmental interest in
securing policy goals by waiving such claims through peace treaties.
91. Id.
92. “[The ECHR] reached the conclusion that the [‘very essence’] condition was
satisfied, by rather clumsily drawing on the existence of the other two conditions.” Gattini, supra note 13, at 533.
93. Liech., 2001-VIII Eur. Ct. H.R. 1, at 28–29 (“[T]he exclusion of German jurisdiction did not affect the great majority of such cases where property had remained within
the territory of the expropriating State. The genuine forum for the settlement disputes in
respect of these expropriation measures was, in the past, the courts of the former Czechoslovakia and, subsequently, the courts of the Czech or Slovak Republics. Indeed, in
1951 the applicant’s father had availed himself of the opportunity of challenging the expropriation in question before the Bratislava Administrative Court.”).
94. Id.
95. Id.
96. Id.
97. See Winn, supra note 7, at 816–17. Winn criticizes the ECHR’s decision and
writes that “[the prince’s] situation is Kafkaesque: he is a citizen of a neutral country
who, after being deemed German by a court in Bratislava, has been unable to compel the
return of a painting confiscated as part of a World War II reparation scheme between
Germany and Czechoslovakia.” Id. at 816. Winn continues to describe “three violations
of rights guaranteed to the prince under international law” that the ECHR failed to remedy, namely, “(1) confiscation of the prince’s property by a foreign state without compensation; (2) determination of the prince’s citizenship by a foreign state; and (3) imposition
on the prince of a treaty not signed by Liechtenstein.” Id. at 816–17.
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III. CHINESE WWII SLAVE LABOR LITIGATION IN JAPAN AND CHINA’S
WAIVER OF CLAIMS IN ARTICLE 5 OF THE JOINT COMMUNIQUÉ
A. Origins of Slave Labor Litigation in Japan
In order to relieve internal labor shortages during the course of WWII,
from 1942 to 1945 the Japanese government orchestrated the abduction
and transportation to Japan of approximately 37,500 Chinese slave laborers.98 After arrival in Japan, the laborers were subjected to extreme hardship, including illness, severe working conditions, malnutrition, and violence.99 Owing to the harshness of their treatment, about 17.5% of the
slave laborers brought to Japan died during the course of the ordeal.100
After Japan’s defeat and the conclusion of the war, it signed a formal
peace treaty with most of the Allied Powers in 1951 in San Francisco
(“San Francisco Treaty”).101 Although Article 14 of the San Francisco
Treaty expressly waives all present and future war compensation claims
of the Allied Powers and their nationals,102 China (along with several
other nations previously in conflict with Japan) was not a party to the
treaty.103 Recognizing that the San Francisco Treaty was incomplete
without the inclusion of all relevant parties, it authorized Japan to enact
bilateral peace treaties with nonparticipating nations.104 In 1972, Japan
endeavored to complete one of these bilateral peace treaties by signing a
Joint Communiqué with the People’s Republic of China.105 Article 5 of
98. Lü Zhigang v. Nishimatsu Constr., 1969 HANREI JIHŌ 31, 32 (Sup. Ct., Apr. 27,
2007). The number of Korean slave laborers transported to Japan during the same period
is estimated at approximately 290,000. Id.
99. Id. at 32–33.
100. Id. at 33.
101. Treaty of Peace with Japan, Sept. 8, 1951, 136 U.N.T.S. 46 [hereinafter San Francisco Treaty].
102. Id. ch. V, art. 14(b) (“[T]he Allied Powers waive all reparations claims of the
Allied Powers, other claims of the Allied Powers and their nationals arising out of any
actions taken by Japan and its nationals in the course of the prosecution of the war, and
claims of the Allied Powers for direct military costs of occupation.”).
103. Nishimatsu, 1969 HANREI JIHŌ at 33.
104. San Francisco Treaty, supra note 101, art. 26.
105. Joint Communiqué, supra note 17. Actually, Japan had previously signed a peace
treaty with the Republic of China in 1952 in Taipei (“Taipei Treaty”). Treaty of Peace
between the Republic of China and Japan (1952), available at http://www.taiwandocuments.
org/taipei01.htm (last visited Oct. 31, 2008) [hereinafter Taipei Treaty]. The government
of the Republic of China, based in Taiwan at the time, was the competing government
vying for power against the communist People’s Republic of China, but became virtually
powerless after the communist government secured dominance; hence, the Taipei Treaty,
from a practical point of view, became completely irrelevant with regard to Chinese/Japanese postwar relations. See Nishimatsu, 1969 HANREI JIHŌ at 33–34.
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the Joint Communiqué reads: “[t]he Government of the People’s Republic of China declares that in the interest of the friendship between the
Chinese and the Japanese peoples, it renounces its demand for war reparation from Japan.”106 There is no further explanation or definition of the
term “war reparations” found in the Joint Communiqué, however, leaving the reader unsure as to whether the waiver is meant to include individual compensation claims by victims of war, or simply refers only to
governmental claims.107 A formal peace treaty between the two nations
was eventually signed in 1978, in which the terms of the Communiqué
were ratified.108
B. The Japanese Judiciary’s Treatment of Article 5 of the Joint Communiqué
In 1986, the People’s Republic of China established a law that made it
permissible for Chinese nationals to travel outside of their nation’s borders, enabling Chinese WWII victims to bring their claims in Japanese
courts.109 Consequently, following the example of earlier Korean slave
labor litigation, a group of Chinese slave labor plaintiffs brought their
first suit in Tokyo District Court in 1995 against the copper mining firm
under which they were forced to work during the war.110 In holding that
the plaintiffs’ claims were barred under the Civil Code’s statute of limitations for tort claims,111 the Tokyo District Court avoided addressing the
merits of their claims.112 This case initiated a trend among Japanese
judges handling Chinese slave labor cases—that of dismissing war compensation claims by utilizing a handful of defenses before getting to a
discussion of their merits.113
106. Joint Communiqué, supra note 17, art. 5.
107. Id.
108. Treaty of Peace and Friendship, supra note 18 (“Confirming that . . . the Joint
Communiqué constitutes the basis of the relations of peace and friendship between the
two countries . . . the principles enunciated in the Joint Communiqué should be strictly
observed . . . .”).
109. Nishimatsu, 1969 HANREI JIHŌ at 34.
110. Geng Zhun v. Kajima, 988 HANREI TAIMUZU 250 (Tokyo D. Ct., Dec. 12, 1997).
111. MINPŌ, art. 724 (“The right to demand compensation for damages which has arisen from an unlawful act shall lapse by prescription if not exercised within three years
from the time when the injured party or his/her legal representative became aware of such
damage and of the identity of the person who caused it, the same shall apply if twenty
years have elapsed from the time when the unlawful act was committed.”).
112. Kajima, 988 HANREI TAIMUZU at 254.
113. See Webster, supra note 14, at 753–54. Webster states that statutes of limitations
and government immunity are the two most widely used defenses applied by Japanese
courts in the slave labor context. He proceeds to describe these defenses as technical and
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Initially favoring Article 5 of the Joint Communiqué as an effective legal defense, Japanese courts were largely successful in disposing of Chinese claims by concluding that, ipso facto, any Chinese citizen’s individual claim arising out of WWII had been settled by agreement of both
governments and was thus barred.114 Despite this trend, as the below cases demonstrate, several district court judges gradually began to refuse to
follow their colleagues’ formalist interpretation of Article 5 by scrutinizing the ambiguous language in a larger context of international policy
and fairness.
In 2002, analyzing the scope of Article 5’s waiver of claims, the Fukuoka District Court in Chinese Victims of Forced Labor v. Mitsui Mining
assigned particular significance to a 1995 statement by the Chinese foreign minister in which he expressly denied that the People’s Republic of
China had any intention of including individual claims when it negotiated Article 5’s waiver, declaring instead that it was meant to be limited
to the government’s war reparation claims.115 The Fukuoka court determined that this affirmation clarified the ambiguity in China’s waiver and
allowed the Chinese plaintiffs in this case to bring their claims on the
merits.116
In Chinese Victims of Sexual Violence v. Japan, a case involving
WWII Chinese “military comfort women,” the Tokyo District Court examined the ambiguity of the phrase “war reparations” in Article 5 of the
Joint Communiqué.117 It distinguished “war reparations” from the phrase
“compensation for injury,” the former being inherently a state issue and
the latter being payment for a claim that only an individual can bring.118
Based on this distinction, the Tokyo District Court held that the clear
import of the provision illustrates that the waiver in Article 5 applies only to the Chinese government’s “war reparations,” not to individual compensation claims.119
as having “talismanic properties,” which allow judges to arbitrarily decide cases on the
“whims of spells.” Id. at 754. Another typical technical defense successful in Japanese
courts when war reparation claims are brought under international law rather than Japanese civil law includes barring claims owing to the lack of an underlying treaty provision
that would explicitly allow such claims. See Hae Bong, supra note 16, at 189–90.
114. See Gao, supra note 19, at 536; Hae Bong, supra note 16, at 189–90.
115. See Chinese Victims of Forced Labor v. Mitsui Mining, 1809 HANREI JIHŌ 111,
121 (Fukuoka Dist. Ct., Apr. 26, 2002).
116. Id.
117. Chinese Victims of Sexual Violence v. Japan, 1127 HANREI TAIMUZU 281, 295
(Tokyo Dist. Ct., Apr. 24, 2003).
118. Id.
119. Id. (“The Joint Communiqué should be interpreted within the basic framework of
international law. Claims against our country as the assailing nation during the Second
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In Zhang Wenbin v. Rinko Co., arguably the greatest victory for slave
laborer plaintiffs,120 the Niigata District Court also interpreted China’s
waiver in Article 5 to refer only to governmental claims.121 The court
emphasized that the language of the provision explicitly states that the
government of the People’s Republic of China renounces all war reparations, but makes no mention that private, individual claims are to be relinquished.122 In reaching this conclusion (like the Fukuoka District
Court in Mitsui Mining), the court in Rinko gave deference to official
representations by Chinese public officials—particularly the 1995 statement of the Chinese foreign minister—in adhering to the interpretation of
Article 5 as meaning only a renunciation of governmental claims.123
In July 2004, the Hiroshima High Court in Lü Zhigang v. Nishimatsu
Construction refused to construe Article 5 as barring the claims of Chinese slave labor victims forced to work in coal mines during the war, and
reversed a district court decision124 in favor of the defendant companies.125 For similar reasons as the above-cited district court cases, it held
that the claims China waived in Article 5 definitively stopped at government-specific war reparations, and that since individual claims were not
at all mentioned, they should not be barred.126
World War by the People’s Republic of China . . . for compensation, so-called ‘war reparations,’ are all that is waived; claims against our nation by individual Chinese victims
for compensation, so-called ‘compensation for injury,’ are nowhere relinquished.”) (author’s translation).
120. This case is considered particularly significant for Chinese slave labor plaintiffs
because it marks the first time a Japanese court recognized liability on the part of the
Japanese government—in addition to a defendant corporation—for harms suffered by the
slave laborers. See Hae Bong, supra note 16, at 196.
121. Zhang Wenbin v. Rinko Co., 50 SHŌMU GEPPŌ 3444, 3603 (Niigata Dist. Ct.,
Mar. 26, 2004).
122. Id. at 3606–08.
123. Id. The court in Rinko also found influential an official statement by the Chinese
government expressed on the website of the Japanese Embassy to China, which articulated that, during the Joint Communiqué’s negotiation process, the People’s Republic of
China, acting in response to Japan’s expression of great responsibility and deep remorse
for the harm it had caused to the Chinese people during the war, agreed to relinquish all
claims for war reparations. Id. at 3607. Notwithstanding this fact, the statement purported
that the government of China urges Japan to take proper measures and respond with seriousness to protect the interests of individual Chinese WWII victims (such as victims of
chemical weapons, slave laborers, and “military comfort women”). Id. at 3607–08. The
court was moved by this statement and concluded that, based on the premise that it relinquished all its war reparation claims, the government of China expects that Japan take
responsibility to resolve outstanding issues in regard to individual claims. Id. at 3608.
124. 1110 HANREI TAIMUZU 253 (Hiroshima Dist. Ct., July 9, 2002).
125. 1865 HANREI JIHŌ 62 (Hiroshima High Ct., July 9, 2004).
126. Id. at 89–91.
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C. The Japanese Supreme Court’s Review of Lü Zhigang v. Nishimatsu
In April 2007, the Supreme Court of Japan accepted the Nishimatsu
case for review and, for the first time in the course of slave labor litigation in Japan, endeavored to determine the scope of Article 5’s waiver.127
The court admitted that the waiver was ambiguous and its scope undefined.128 Then it unanimously held that Article 5 should be interpreted as
barring all Chinese citizens’ individual claims arising out of WWII,
based primarily on two reasons: (1) the historical evidence shows that the
Joint Communiqué was the product of negotiation and compromise between Japan and China, which were conditioned upon China accepting a
conclusion to the war and the resolution of all outstanding issues in exchange for good consideration; and (2) the Joint Communiqué must be
interpreted within the framework of the San Francisco Treaty, which had
as its main goal the attainment of peace by means of settling all claims—
including individual ones—and resolving outstanding issues.129
With regard to the first reason for finding that Article 5 waived individual claims, the supreme court looked at the historical background and
negotiations behind the signing of the Joint Communiqué and found that
China and Japan had demanded the acceptance of certain basic principles
as preconditions to signing.130 The court stated that the Chinese government had three basic requirements: (1) that Japan recognize the communist government of the People’s Republic of China as the sole, legitimate,
and lawful representative of China; (2) that Japan recognize Taiwan as
the territory solely of the People’s Republic of China; and (3) that the
Taipei Treaty between Japan and the Republic of China131 be deemed
illegal and without effect.132 In contrast, Japan expected the People’s Republic of China to accept similar terms to those reflected in the Taipei
Treaty and officially acknowledge the conclusion of WWII and the complete termination of all war reparation claims and other outstanding is-
127. Lü Zhigang v. Nishimatsu Constr., 1969 HANREI JIHŌ 31 (Sup. Ct., Apr. 27,
2007).
128. Id. at 36 (“[I]t is unclear by just looking at [Article 5] whether its substance
waives claims in addition to war reparations, and if it does, whether the waiver is meant
to include individual claims by Chinese citizens.”) (author’s translation).
129. Id. at 36–37.
130. Id.
131. Taipei Treaty, supra note 105. The obvious reason the People’s Republic of China was so interested in invalidating the Taipei Treaty was because it was signed by its
competing, noncommunist, Chinese government, the Republic of China, which it, of
course, did not recognize.
132. Nishimatsu, 1969 HANREI JIHŌ at 36.
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sues.133 The court illustrated that, from these different viewpoints,
through much effort and negotiation, both countries acceded to each other’s demands and came to mutual understanding and agreement, the
terms of which were memorialized in the Joint Communiqué (albeit imperfectly since it failed to clearly enunciate a waiver of individual
claims).134 From this historical context of negotiation and mutual effort
toward postwar stabilization, the court concluded that both nations intended the Joint Communiqué to be a peace treaty of great significance
with the force to bring the war, all outstanding issues, and all related
claims—including all individual claims—to a definitive end.135
In addition, the Court determined that, as a component of the series of
events that comprise WWII’s epilogue, the Joint Communiqué should be
understood and interpreted only within the framework of the San Francisco Treaty, the primary peace treaty governing postwar matters between Japan and its enemies, and should not deviate from its substance
or purport.136 The court reasoned that the parties to the San Francisco
Treaty, understanding that individual claims would obstruct their critical
goal of establishing a conclusion to the war and overarching peace, wisely crafted the treaty to cause all parties to specifically waive all claims.137
Because the claims waiver of Article 5 of the Joint Communiqué should
be interpreted only within this framework, the court concluded, it should
be construed to include individual claims, as does the San Francisco
Treaty.138 Therefore, the Chinese plaintiffs were found to have no right to
133. Id. In contrast with the ambiguity in Article 5 of the Joint Communiqué, Article
11 of the Taipei Treaty incorporates the San Francisco Treaty, which explicitly waives
individual claims; by extension, the Taipei Treaty also waives all individual claims. Taipei Treaty, supra note 105, art. 11 (“[A]ny problem arising between the Republic of China and Japan as a result of the existence of a state of war shall be settled in accordance
with the relevant provisions of the San Francisco Treaty.”). The court in Nishimatsu argued that Japan relied on the terms in the Taipei Treaty during the negotiation process
that preceded the signing of the Joint Communiqué, despite the fact that the People’s
Republic of China was not a party to the Taipei Treaty. 1969 HANREI JIHŌ at 36. It looked
at the subjective intent of the Japanese government during the negotiation process and
found that, “with regard to the conclusion of war [between Japan and China] and the
termination of all war reparation and other claims, the Japanese government could only
but rely on the premise that all these matters had already been resolved in the [Taipei
Treaty] in a formal manner.” Id. (author’s translation).
134. Id. at 36–37.
135. Id.
136. Id. at 37.
137. Id. at 34–35.
138. Id. at 37.
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bring suit; their claims were deemed to be waived, as understood within
the overarching framework of WWII’s conclusion.139
The effect of Nishimatsu is that it conclusively legitimizes Article 5’s
waiver within the Japanese courts and clarifies its ambiguity by determining that it extends to both government war reparation and individual
claims.140 Since Japan is a civil law country without a firm doctrine of
stare decisis, the structure of the court system is such that the Supreme
Court’s decisions are technically not binding on inferior courts.141 However, the decisions are nonetheless tremendously influential and followed
almost without exception.142 Nishimatsu leaves a strong precedent for
lower courts to follow, and it is highly unlikely that it would ever be contradicted by a lower court.143 It would appear that hereafter, Chinese
WWII-era victims have very little chance of having their claims heard in
Japan.
IV. THE LEGITIMATE AIM TEST APPLIED TO WWII CHINESE SLAVE
LABOR LITIGATION IN JAPAN
This Note proposes that, because of the ambiguity in Article 5 of the
Joint Communiqué,144 the ECHR’s “legitimate aim” test is appropriate to
139. Id.
140. See id.
141. CHARLES F. GOODMAN, JUSTICE AND CIVIL PROCEDURE IN JAPAN 444 (2004) (“A
decision of the [Japanese] Supreme Court, like all other judgments, binds only the parties
to the action in front of the court. The civil law does not recognize starie [sic] decisis and
hence the court’s reasoning is, in theory, not controlling on the lower courts in future
cases.”).
142. Id. Goodman explains that Japan’s Civil Code strongly encourages uniformity
within Japanese case law, which “in essence direct[s] the [lower courts] to follow the
Supreme Court’s precedent—as if it were starie [sic] decisis.” Id.
143. Indeed, since the Supreme Court’s decision in Nishimatsu, as recent decisions
affirm, the lower courts have clearly followed its reasoning. See, e.g., Associated Press,
Japanese Court Rejects WWII Forced Labor Lawsuit, INT’L HERALD TRIB.: ASIA-PAC.,
Sept. 19, 2007, http://www.iht.com/articles/ap/2007/09/19/asia/AS-GEN-Japan-ForcedLabor.php (reporting that the Toyama District Court dismissed claims of Korean slave
labor plaintiffs on the basis that “war-related claims had already been settled under postwar peace and compensation treaties”); Leslie Schulman, Japan High Court Dismisses Chinese WWII Slave Labor Suit, JURIST, June 28, 2007, http://jurist.law.pitt.edu/paperchase/2007/
06/japan-high-court-dismisses-chinese-wwii.php; Theage.com.au, Chinese WWII Slaves Miss
out on Compo, Aug. 30, 2007, http://www.theage.com.au/news/World/Chinese-WWIIslaves-miss-out-on-compo/2007/08/30/1188067198546.html (noting that the Maebashi
District Court, in dismissing the claims of Chinese slave labor plaintiffs, “appeared to
take its cue from [Nishimatsu, which] ruled [that] individual Chinese citizens lost their
right to seek redress from Japan following [the Joint Communiqué]”).
144. Since the Japanese Supreme Court in Nishimatsu found that Article 5’s waiver
was ambiguous, see Nishimatsu, 1969 HANREI JIHŌ at 36, even while holding that the
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apply to the slave labor situation in Japan to determine whether the Chinese government legitimately waived the claims of its citizens, and therefore, whether the conclusion of the Japanese Supreme Court—that Article 5 applies to all Chinese claims—should be overturned. In applying
the ECHR’s test, a court would have to determine whether the Chinese
government: (1) had a legitimate aim in waiving the claims of individual
victims of war; (2) this waiver of claims was a proportional means to that
legitimate aim; and (3) the “very essence” of the Chinese litigants’ right
to bring their claims was not impaired by the waiver.145 It becomes clear,
when applying the legitimate aim test, that a court would likely determine that the ambiguous waiver does not legitimately annul the claims of
the Chinese individual plaintiffs and would allow their claims to proceed
on the merits.
A. The Legitimate Aim Element
A court would likely find that the People’s Republic of China had a legitimate aim in waiving its citizens’ war-related claims through Article 5
of the Joint Communiqué. In determining that Germany had a legitimate
aim in waiving postwar property claims, the ECHR focused on the fact
that Germany was in a highly compromised position, with the pressing
need to regain its sovereignty following the war.146 In contrast, when the
People’s Republic of China signed the Joint Communiqué, bloodshed
and warfare had ended two decades earlier, and the communist government was securely established, albeit not unanimously recognized by all
other world powers.147 Based on the historical facts enumerated by the
Japanese Supreme Court, China’s primary purpose for entering into the
Joint Communiqué was to obtain Japan’s legal recognition of its newly
established communist government and its complete ownership of the
territory of Taiwan.148 In addition, China had the overarching goal of
reestablishing friendly relations and economic intercourse with Japan.149
These are certainly weighty policy considerations, but clearly the temporal and situational circumstances of China were not nearly as grave as
waiver applies to individual claims, this Note concludes that Article 5’s waiver is ambiguous for purposes of satisfying the ambiguity threshold before applying the legitimate
aim test. For the reasoning this Note adopts in requiring an ambiguity threshold as a prerequisite to the legitimate aim test, see supra note 22.
145. See Prince Hans-Adam II of Liech. v. F.R.G., App. No. 42527/98, 2001-VIII Eur.
Ct. H.R. 1, 23 (2001).
146. See id. at 25–27.
147. See Nishimatsu, 1969 HANREI JIHŌ at 34.
148. See id. at 36.
149. See generally Joint Communiqué, supra note 17.
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they had been for Germany at the time it waived its citizens’ claims, and
therefore the purpose in waiving was not as significant.
Though it may be useful for challengers of the waiver to distinguish
the goals of the waiving nations by degree of urgency, ultimately, it
would probably do little to persuade a court that the People’s Republic of
China did not have a legitimate aim under these facts. Certainly, Germany’s situation was extreme, and obviously, it had a legitimate purpose
because it had no choice but to waive the claims of its citizens at the
time.150 However, that does not mean a less extreme situation, like China’s at the time of the Joint Communiqué, would not also be legitimate,
as long as it was not frivolous or unwarranted. Therefore, since the
People’s Republic of China did have significant policy justifications for
Article 5’s waiver, though by degree not as compelling as Germany’s, a
court would likely find that China had a legitimate aim.
B. The Proportionality Element
A court would probably find that the individual claim waiver of Article
5 did not bear a “reasonable relationship of proportionality”151 to China’s
legitimate goal of attaining legal recognition from and establishing a collegial relationship with Japan. The court in Liechtenstein considered
Prince Hans-Adam II’s property claim insufficient to “outweigh the vital
public interest in regaining sovereignty and unifying Germany.”152 It then
concluded that Germany’s action of waiving such property claims was
reasonably proportionate to its legitimate aim of reestablishing itself.153
In contrast with property appropriation, however, there appears to be
general consensus that the prohibition against slave labor is an accepted
jus cogens norm.154 It is clear that jus cogens norms have increasingly
powerful influence in international law, and waivers of jus cogens
breaches should be taken particularly seriously.155 Furthermore, Germany’s situation at the time it waived its citizen’s property claims was much
more critical than China’s at the time it signed the Joint Communiqué.156
Under these circumstances, the balance between a waiver of jus cogens
slavery claims against China’s primary aim of legal recognition appears
much less proportional, especially when compared with the balance that
was drawn between Germany’s grave circumstances and its waiver of
150.
151.
152.
153.
154.
155.
156.
See Liech., 2001-VIII Eur. Ct. H.R. 1, at 26–27.
See id. at 23 (discussing the proportionality element).
Id. at 29.
Id.
See supra note 48 and accompanying text.
See Articles on Responsibility of States, supra note 48, art. 41, cmts. 1–14.
See discussion supra Part IV(a).
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relatively impotent property claims in the Liechtenstein case.157 Accordingly, the scales tip in favor of the Chinese litigants owing to the gravity
of their jus cogens claims, creating a stark imbalance. Therefore, after
finding that jus cogens claims had been waived for relatively insubstantial reasons, a court would likely find that Article 5 was not proportional
to China’s legitimate aim.
C. The “Very Essence” Element
A court would probably find that the “very essence” of the right of
Chinese slave labor victims to have their claims heard is impeded by
Article 5’s waiver. The court in Liechtenstein was impressed by the fact
that there was another, more appropriate, forum for the plaintiff’s claims
in Czechoslovakia and thereby determined that the very essence of his
right had not been impeded by his nation’s waiver.158 Thus, the court
illustrated that the very essence of a claimant’s right to bring a claim is
not impeded by a treaty waiver when there exists another forum in which
to bring his or her claims.159 In the case of the Chinese slave labor victims, it would be difficult to imagine a more appropriate forum than
Japan. As in Czechoslovakia, all possible defendants reside in the country (in this case, Japan), and it is the locus where the protested activity
took place. Indeed, there does not appear to be any other tenable forum
for the Chinese plaintiffs.160 Thus, the litigants would be left without
anywhere to bring their claims and be likely to convince a court that the
very essence of their right is impaired by Article 5’s waiver.
157. Andrea Gattini remarks on this, suggesting that Prince Hans-Adam II’s claim
might have succeeded if the underlying harm he suffered was a jus cogens violation, not
just a mere appropriation of property:
[U]nder what conditions could or should a state disregard an obligation it undertook not to allow claims or actions relating to property seized under certain
circumstances elsewhere? The answer is, when the seizure was a breach of a
peremptory norm of international law. It is difficult to characterize the Benes
Decrees in that way . . . .
Gattini, supra note 13, at 544.
158. See Liech., 2001-VIII Eur. Ct. H.R. 1, at 28–29.
159. See id.
160. In fact, several Chinese and other WWII victims have filed actions against the
Japanese government and certain Japanese corporations in the United States, but they
have been unsuccessful, as American courts have largely refused to entertain their claims.
See generally Haberstroh, supra note 14 (providing a discussion of WWII slave labor
lawsuits in U.S. courts and an accounting of the plaintiffs’ failures therein). Even if
American courts decided to entertain such cases, it would be a much more incongruous
and inappropriate forum than the Japanese courts.
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Therefore, the Chinese government’s waiver in Article 5 would likely
fail the ECHR’s legitimate aim test in Liechtenstein and be declared
invalid.
CONCLUSION
When applied to slave labor litigation in Japan, the legitimate aim test
would likely weigh in favor of the Chinese slave labor plaintiffs, causing
the claim waiver in Article 5 of the Joint Communiqué to be invalidated
as to individual claims and overturning the Japanese Supreme Court’s
decision in Nishimatsu. In waiving the WWII Chinese victims’ individual claims through Article 5, though a court would be likely to find that
the People’s Republic of China had a legitimate aim, it would also be
likely to find that the waiver, in its termination of jus cogens claims, was
not proportionate to that legitimate aim, and that the waiver frustrated the
“very essence” of the Chinese victims’ claims because there does not
exist any viable alternative forum in which to bring them.
By using the slave labor litigation scenario as a test case, it becomes
apparent that the ECHR’s legitimate aim analysis offers a viable method
for balancing the powers and interests of governments with the rights of
individual victims of war. Since nations require functional and foreseeable rules in order to establish peace following warfare,161 the legitimate
aim test should not apply unless the threshold question of ambiguity in a
waiver provision has been answered; that is, for purposes of efficiency
and public policy, if a treaty waiver is clear and unambiguous in relinquishing all individual claims, the question should end there, and the
waiver should be upheld without any further analysis.162 However, when
faced with an ambiguous treaty waiver, like Article 5 of the Joint Communiqué, the legitimate aim test provides the means to effectively weigh
the traditional governmental power to waive all war-related claims
through peace treaties against international law’s increasing concern for
human rights and the individual’s right to judicial recourse for harms
suffered.
From a human rights perspective, the ECHR’s test has great value. It
places an emphasis on the “very essence” of the individual’s right to
have his or her claim heard by requiring an alternative forum. In addition, it mandates that the government have sound policy reasons for
161. See supra note 3 and accompanying text.
162. Since it is common for nations to be very specific in waiving claims postwar, see
Gattini, supra note 3, at 366, it seems evident that governments would typically be able to
avoid the legitimate aim test altogether by relying on the clarity of their well-tailored
treaty language to dispel any claim of ambiguity.
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waiving such claims,163 and thereby ensures that it does not dispense with
them for frivolous or self-serving purposes. Finally, the legitimate aim
test contains the proportionality requirement, which can serve as a valuable method for balancing the interests at stake and determining overall
fairness. Perhaps most importantly, the proportionality requirement, in
weighing the interests, allows a court to underscore the increasing international significance of jus cogens norms, and to acutely assess instances
where they are violated.
Nicholas S. Richard*
163. In most cases, it appears that governments would not have a difficult time coming
up with a “legitimate aim.” Indeed, securing peace following warfare would almost always automatically seem to qualify as a legitimate aim. Therefore, the tension in future
cases potentially applying the legitimate aim test would most likely be found in the “proportionality” prong. In this sense, it might be interesting to draw an analogy to U.S. constitutional law and the equal protection clause in regard to gender discrimination, where
finding an “important governmental interest” for a gender classification is just the doorway to the more difficult question of whether the classification is “substantially related”
to the achievement of governmental aims—in other words, whether the means of gender
classification is “substantially related” (compare with “proportional”) to the “important
governmental interest” (compare with “legitimate aim”) sought to be achieved. Cf. Craig
v. Boren, 429 U.S. 190 (1976).
* B.A., Purchase College (2001); J.D., Brooklyn Law School (expected 2010). I
would like to thank my wife, Rio, and my daughters, Anastasia and Sophia, for being
sources of inspiration, consolation, and love, my parents, Madeline and Simeon Richard,
my brother, Chris Richard, and my two closest friends, Matthew Keil and Adam Gedney,
for their continual support and encouragement. I owe a particular debt of gratitude to
Jonathan W. Knipe for being a mentor and for believing in my capabilities. I would also
like to thank “John” Masatoshi Shoji for confirming my insecure readings of Japanese
sources, Lisa J. Smith, Tamias ben-Magid, and the members of the Brooklyn Journal of
International Law, particularly Laura Scully and Victoria Siesta, for helping me to shape
this Note into publishable form. Any errors or omissions are my own.