PROPOSAL 7

Bernadette Atuahene Chicago-Kent College of Law

How far back should we go: reparations and multiple layers of property dispossession?

Several developing nations are committed to the rule of law and especially the protection of property rights. This commitment is complicated when there are multiple layers of property dispossession. For instance, in the case of Zimbabwe the Ndebele took from the Shona, British settlers took from the Ndebele, and war veterans took from descendants of British settlers. The question is: Whose property rights should be vindicated given the multiple layers of dispossession? My Article is intended to begin answering this daunting question.

PROPOSAL 14

Andrea K. Bjorklund University of California, Davis, School of Law

Private Rights v. Public International Law: How Inefficient Competition in International Economic Disputes Threatens the Viability of International Tribunals

It is a buyer’s market for foreign investors seeking remedies for wrongs they have allegedly suffered at the hands of host governments. They can usually seek relief in the courts of the host state; increasingly, they also have more cosmopolitan options to consider, including investor-State arbitration based on violations of one or more investment treaties. This competition for business is not, contrary to expectation, advantageous to investors or to the world community. First, competition is to some extent illusory: available remedies and jurisdictional authority are often so fragmented among tribunals that a claimant must seek relief in multiple fora in order to be made whole. Second, the possibility of bringing duplicative cases brings disrepute to international dispute settlement mechanisms without corresponding advantages in innovation, quality, or efficient allocation of resources. These problems are exacerbated by the fact that tribunals lack the means (such as the traditional conflict of laws analysis used by municipal courts) to coordinate proceedings when their jurisdictions overlap with those of other tribunals. This incapacity will persist until public international law principles adapt to reflect a pluralistic legal order. Achieving more coordination among tribunals will require moving beyond the historic division between states and individuals in international law. Individuals will need to have recognized status and be treated as owning acquired rights, rather than as merely owning derivative rights, to effect this change. Such theoretical advances will permit a desirable coordination, and ultimately a harmonization of effort, among tribunals in the international economic law sphere.

TABLE OF CONTENTS

INTRODUCTION.................................................................................3

I. THE PROLIFERATION OF INTERNATIONAL COURTS AND TRIBUNALS 7 A. The International Court of Justice ............................8 B. The WTO Dispute Settlement Body .........................10 C. Regional Dispute Settlement Bodies .......................11 D. Investor-State Arbitration .......................................12 E. Municipal Courts ....................................................13

II. FRAGMENTATION AND DUPLICATION OF TRIBUNAL AUTHORITY 16 A. Duplication..............................................................17 B. Fragmentation.........................................................18 C. The Effect of Public International Law Principles .19

1. Identity of the Parties .......................................21 a. Delegated Espousal...................................22 b. Third-Party Beneficiaries..........................22 c. The Delegated Espousal and Third-Party Beneficiary Approaches Compared 23

2. Applicable Law................................................25 3. Relief Available ...............................................26

III. FRAGMENTATION AND DUPLICATION REIFIED: THE LUMBER & LAUDER CASES 27 A. The Softwood Lumber Cases...................................27

1. History of the Softwood Lumber Disputes .......27 2. Lumber IV (2001-2007)...................................29

a. WTO Proceedings.....................................29 b. NAFTA Chapter 19 ..................................32 c. NAFTA Chapter 11 ..................................33 d. U.S. Court of International Trade .............34 e. The Softwood Lumber Agreement 2006 ..35

B. The Lumber Cases Analyzed ...................................36 C. The Lauder Cases....................................................37

1. Investor-State Arbitration under the US-Czech Republic BIT 38 2. Investor-State Arbitration under the Netherlands-Czech Republic BIT 39 3. Proceedings Between the Two Czech Companies 39 4. Arbitration Between Dr. Zelezny and CME ....40

D. The Lauder Cases Analyzed ....................................40 IV. COORDINATION: BARRIERS AND OPPORTUNITIES...........42

A. Treaty Directives.....................................................42 1. “Exclusivity” Clauses ......................................43 2. Election of Remedies Clauses ..........................45 3. “Umbrella” Clauses ........................................45

B. Preclusion Doctrines...............................................48 C. Abstention Doctrines...............................................51

CONCLUSION ....................................................................................51

Introduction It is a buyer’s market for foreign investors seeking remedies for wrongs they have allegedly suffered at the hands of host governments. Because of the proliferation of international tribunals dealing with international economic law, foreign investors can choose from among a variety of fora in their quest for justice. Such an investor can usually seek relief in the courts of the host state; increasingly, he also has more cosmopolitan options to consider, including investor-State arbitration on the grounds of breach of contract or investor-State arbitration based on violations of an investment treaty. Should the investment in question overlap with trade, regional (e.g. NAFTA Chapter 19) or multilateral (e.g. WTO) trade dispute settlement might be available.

The proliferation of tribunals is not problematic in and of itself. The coexistence of multiple and varied peaceful mechanisms for the settlement of investment disputes is theoretically good, and a significant advance over the gunboat diplomacy of the 19th and early 20th centuries.1 The notion that the free movement of goods, services, and capital is desirable is premised on the comparative advantage some nations have in certain sectors.2 Competition is expected to encourage innovation, force improvements in quality, and lead to the most efficient use of resources. Can competition among dispute settlement mechanisms bring similar advantages? One might expect that such competition would be advantageous to claimants who seek relief and to defendant States who seek the fair and expeditious disposition of claims against them. Judges or arbitrators, however, might be expected to perceive the existence of competition more as a threat to their authority than as an exogenous force for improvement and innovation.3 This perception may itself undercut the efficiency of dispute settlement.

To date adjudicatory competition among international tribunals has not been

advantageous for the parties that appear before them. There are two primary problems. First, competition is to some extent illusory: available remedies and jurisdictional authority are often so fragmented among tribunals that a claimant must seek relief in multiple fora in order to be made whole. The tribunals in such instances are effectively insulated from competition with each other. Second, when there is actual overlap in tribunal jurisdiction and duplication in proceedings, tribunals have few tools available to respond to the existence of other proceedings. In such cases, the possibility of bringing duplicative cases brings disrepute to international dispute settlement mechanisms without corresponding advantages in innovation, quality, or efficient allocation of resources. 1 See Burns H. Weston, The Charter of Economic Rights and Duties of States and the Deprivation of Foreign-Owned Wealth, 75 AM. J. INT’L L. 437 (1981) (discussing the substitution of international law for the restrictions previously imposed by colonialism and gunboat diplomacy in the context of nationalizations); Oscar Schachter, Philip Jessup’s Life and Ideas, 80 AM. J. INT’L L. 878, 893 (1980) (noting Judge Jessup’s view that gunboat diplomacy had led to abuses by powerful states). 2 DAVID RICARDO, ON THE PRINCIPLES OF POLITICAL ECONOMY AND TAXATION ch. 7, para. 16; ch. 19, para. 1 (R.D. Irwin 1963) (1817). 3 The Oxford English Dictionary defines competition as “Rivalry in the market, striving for custom between those who have the same commodities to dispose of.” III THE OXFORD ENGLISH DICTIONARY 604 (2d ed. 1989 (reprinted 2004)).

The first problem, that of fragmentation, is primarily one of inefficiency. Different

tribunals must educate themselves about the facts underlying the claim at issue, while claimants and defendants have the expense of coordinating multiple proceedings. Yet it is not readily apparent to the casual observer that it is jurisdictional fragmentation that makes multiple proceedings necessary. Instead, she may perceive foreign investors having access to so many avenues for relief that they seem unduly favored by states and even by international law generally.4

The second problem, that of duplication, is one of fairness and abuse of process, both

real and perceived. Forum shopping in the municipal court context is often viewed as a luxury which, if conferred on claimants too liberally, is not conducive to fairness to defendants. “Forum-shopping is a dirty word; but it is only a perjorative way of saying that, if you offer a plaintiff a choice of jurisdictions, he will naturally choose the one in which he thinks his case can be most favourably presented: this should be a matter neither for surprise nor indignation.”5 Forum shopping can really be corrosive, however, when it gives rise to the possibility of multiple bites at the apple – the possibility of gaining relief in a second forum notwithstanding the first forum’s dismissal of a suit, or even worse, duplicative relief if suits in both tribunals proceed and are successful.

Foreign investors who have multiple options for seeking relief are subject to

criticisms similar to those levied at claimants in municipal courts.6 A foreign investor can tailor its case, and even manipulate its corporate structure, in order to invoke the jurisdiction of the tribunal most likely to grant it favorable relief.7

The problems underlying the existence of duplicative proceedings are exacerbated by

the fact that tribunals lack the means to coordinate proceedings when their jurisdictions overlap with those of other tribunals. The occurrence of overlapping jurisdictions between tribunals is not new; it is the classic subject matter of private international law, also known as conflict of laws, in which municipal courts are faced with disputes involving cross-border transactions. The common law approach to conflict of laws rests on three pillars – jurisdiction, choice of law, and the recognition of judgments – that help a municipal court manage transnational disputes. There is as yet no comprehensive set of conflicts rules available to judges or arbitrators in international tribunals. Trying to 4 Laurence Shore, Book Review (reviewing JAN PAULSSON, DENIAL OF JUSTICE IN INTERNATIONAL LAW (2005)), 22 ARB. INT’L 627, 627 (2006). 5 The Atlantic Star, [1974] A.C. 436, 471 (H.L.) (appeal taken from Eng.) (U.K.). 6 Richard H. Kreindler, “Arbitral Forum Shopping”: Some Observations on Recent Developments in International Commercial and Investment Arbitration, 16 AM. REV. INT’L ARB. 157, 157 (2005). 7 The principle of non-responsibility holds that states are not responsible under international law for injuries to their own nationals. (Human rights law is a notable exception to this practice). Thus, only a foreign investor may bring a claim for a violation of the law of state responsibility, under which most investment disputes fall. Corporations can manipulate the structure of their investments to ensure that there is a cross-border relationship that places their investment under the protection of a bilateral investment treaty. See Barton Legum, Defining Investment and Investor: Who is Entitled to Claim?, 22 ARB. INT’L 521, 526 (2006). For example, many oil companies own their Venezuelan investments through Dutch subsidiaries, and The Netherlands and Venezuela have a bilateral investment treaty providing protections to Dutch-owned investments.

develop similar rules amid the proliferation of international courts and tribunals is difficult given the discrete and fragmented nature of the tribunals and their authority, and the fact that they do not exist within a single dispute settlement system.

Municipal courts manage jurisdictional conflicts with abstention doctrines such as

forum non conveniens, lis alibi pendens, and comity; they minimize the ill effects of forum shopping by choice of law analysis; and they recognize awards and holdings in related cases through doctrines such as res judicata and collateral estoppel. These tools transfer only uneasily to the international sphere. Entrenched assumptions about private and public international law have limited the development of procedural and substantive legal theories that would reflect the changes in global dispute settlement illustrated by the proliferation of tribunals. These limitations are demonstrated clearly in hybrid investor-State arbitral tribunals, which are based on the private international dispute resolution model of international commercial arbitration, but which have a public international law elements grafted on to that private substructure.8 Lack of analytic clarity about matters such as the presumed identity of interest between investors and their home states leads to difficulty in determining whether proceedings are indeed duplicative.

The challenge is to develop legal tools that will permit the benefits of competition in

the international dispute settlement system to outweigh the disadvantages.9 The ideal would be to lessen the duplication of effort required by claimants faced with fragmented systems for dispute settlement, and also to minimize or eliminate the possibility of claimants’ duplicative recovery. Tools from private international law can help in this process, but will be of limited use unless some public international law principles adapt to reflect a pluralistic legal order. Achieving more coordination, and even harmonization, among tribunals will require moving beyond the historic division between states and individuals in international law. Individuals will need to have recognized status and be treated as owning acquired rights, rather than as merely owning derivative rights, to effect this change.

International law scholars have started to analyze the effects of international tribunal

proliferation, but to date these studies have focused on permanent tribunals rather than on ad hoc bodies whose life spans are coextensive with the duration of the case before them.10 The temporary nature of these ad hoc tribunals belies their increasing 8 For an excellent and comprehensive description of the “hybrid” nature of investor-state arbitration, see Zachary Douglas, The Hybrid Foundations of Investment Treaty Arbitration, 74 BRIT. Y.B. INT’L L. 151 (2004). 9 Some publicists have started to broach these problems. See, e.g. Yuval Shany, Contract Claims vs. Treaty Claims: Mapping Conflicts Between ICSID Decisions on Multisourced Investment Claims, 99 AM. J. INT’L L. 835, 844-45 (2005) (discussing “integrationist” and “disintegrationist” methodologies in approaching multifacted disputes) 10 JOSÉ E. ALVAREZ, INTERNATIONAL ORGANIZATIONS AS LAW-MAKERS 401-520 (2005), YUVAL SHANY, THE COMPETING JURISDICTIONS OF INTERNATIONAL COURTS AND TRIBUNALS (2003), Ernest Young, Institutional Settlement in a Globalizing Judicial System, 54 DUKE L. J. 1143 (2005); David Davenport, The Proliferation of International Courts and Tribunals: What Does it Mean?, 9:5 Nat’l L. Ctr. Pub. Interest (May 2005); José E. Alvarez, The New Dispute Settlers: (Half) Truths and Consequences, 38 TEX. INT’L L. J. 405 (2003); Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429 (2003); Jonathan I. Charney, The Impact on the International Legal System of the Growth of International Courts

importance as pieces in the puzzle of international dispute settlement. Hybrid investor-State tribunals are, by reason of necessity, the most likely laboratories for the development of legal theories designed to surmount the problems of fragmentation and duplication. For investment treaty arbitral tribunals, the lack of means to manage relationships with other tribunals can be a particular handicap. First, an investor-State arbitral tribunal convened under an investment treaty often faces jurisdictional issues from the beginning.11 These often hinge on the allocation of power between national courts and international tribunals. Second, investment treaties typically have very broad standing provisions. Other international tribunals or domestic courts or administrative tribunals may have come to decisions in related cases, or may be considering on-going cases. Thus, an investor-State tribunal will be confronted with arguments as to the res judicata effect to be given to an earlier decision or the lis alibi pendens effect of concurrent cases. Finally, an investor-State tribunal has some flexibility in the application and development of both procedural and substantive legal principles.

This article adds to earlier studies of international tribunal proliferation by discussing international investment tribunals. It also focuses on those tribunals that deal with international economic law issues to facilitate discussion of the problems facing the international community with respect to poor coordination among states at the stage of tribunal creation. Part I examines the proliferation of international courts and tribunals in the post-War period. It identifies those tribunals most likely to be involved in international economic law disputes. Part II examines more closely the fragmented nature of international dispute settlement and the compartmentalization of relief available to claimants. It compares those problems of fragmentation with problems of duplication that stem from tribunals with overlapping jurisdictions and the potential to award duplicative relief to the claimants before them. It discusses the effect that public international law principles related to the identity of claimants and the effect of that categorization on the fragmentation and duplication of disputes. Part III illustrates the problems of fragmentation and duplication through the lens of the most recent Softwood Lumber dispute between the United States and Canada and the infamous Lauder cases. Part IV identifies and analyzes the efficacy of the techniques international tribunals have already employed to manage conflicting dispute. It then examines some of the private international law solutions municipal courts have devised for coordinating conflicting cases, and identifies both those techniques that translate well to the international sphere and some of the barriers international tribunals face when trying to adapt those techniques for their purposes. In both instances many of the problems arise from lack of analytic clarity about the level of autonomy and authority that can or should be exercised by individual claimants appearing before international tribunals. In conclusion, I suggest

and Tribunals, 31 N.Y.U. J. INT'L L. & POL. 697 (1999); Benedict Kingsbury, Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?, 31 N.Y.U. J. INT'L L. & POL. 679 (1999); Cesare P.R. Romano, The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U. J. INT’L L. & POLITICS 709 (1999), Jonathan I. Charney, Is International Law Threatened By Multiple International Tribunals?, 271 RECUEIL DES COURS 101 (1998) [hereinafter Charney, Is International Law Threatened?]. 11 The predilection of defendant states to challenge the jurisdiction of tribunals is marked. See generally MEG KINNEAR, ANDREA K. BJORKLUND, JOHN F.G. HANNAFORD, INVESTMENT DISPUTES UNDER NAFTA: AN ANNOTATED GUIDE TO NAFTA CHAPTER 11, 1101-1 to 1101-50 (2006).

that theoretical advances about the place of individuals in the international legal order will permit a desirable coordination, and ultimately a harmonization of effort, among tribunals in the international economic law sphere.

The proliferation of International Courts and Tribunals The abundance of international dispute settlement mechanisms in the latter part of the

twentieth century is not surprising.12 Particularly in the aftermath of two World Wars, promoting non-violent settlement of disputes was the ideal of many peoples around the world. Indeed, Article 33 of the U.N. Charter requires resort to the peaceful settlement of disputes and sets forth various mechanisms that states might employ.13 Differences in the kinds of tribunals available to solve international disputes demonstrate innovation on the part of states and of private actors. The tribunals established run the gamut from the International Court of Justice, a permanent tribunal with very broad subject matter jurisdiction; to the World Trade Organization’s Dispute Settlement Body, a permanent tribunal with very limited subject matter jurisdiction; to regional standing tribunals; and to ad hoc tribunals convened to hear a single dispute between an investor and a host government. Some are considered to be public international law tribunals, some private international law tribunals, and some are a hybrid of the two.14

This article focuses on international economic law and the tribunals that hear cases

about economic law matters. It can be surprisingly difficult to find descriptions of what constitutes international economic law, and even more difficult to find consistent descriptions. Detlev Vagts, in his recent article on the history of international economic law, defined it as “the international law regulating transborder transactions in goods, services, currency, investment, and intellectual property,”15 a succinct yet comprehensive

12 See Thomas Buergenthal, The Proliferation of disputes, Disputes Settlement Procedures and Respect for the Rule of Law, 22 ARB. INT’L 495, 496-97 (2006) (noting two reasons for proliferation of dispute settlement mechanisms: as more tribunals exist to hear more cases the predictability of outcomes increases; as tribunals are perceived to be successful, international organizations are inclined to emulate that success by imitation); (Roslyn Higgins, International Law in a Changing International System, 58 CAMBRIDGE L. J. 78, 84 (1999) (noting that “The more our world is globalised, the more we all have to depend upon each other for our common welfare, the less the State retains its monopoly as an international actor and the more systems of dispute settlement we are likely to find.”) 13 “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.” U.N. Charter art. 33, para. 1. 14 See Douglas, supra note xx, at 152-60 (discussing the departure of investment treaty tribunals from the traditions of both private and public international law). 15 Detlev Vagts, Centennial Essay: International Economic Law and the American Journal of International Law, 100 AM. J. INT’L L. 769, 769 (2006). Professor Vagts notes that there are even more expansive definitions: “‘the total range of norms (directly or indirectly based on treaties) of public international law with regard to transnational economic relations.’” Id. (citing PIETER VERLOREN VAN THEMAAT, THE CHANGING STRUCTURE OF INTERNATIONAL ECONOMIC LAW 9 (1981)); see also ANDREAS LOWENFELD, INTERNATIONAL ECONOMIC LAW 3 (2002) (assuming that international economic law includes “international trade, investment, and financial transactions.”). Federico and Matteo Ortino have suggested that international economic law needs its own methodological approach, “one that cuts across the boundaries between legal systems (e.g. national, regional, international and trans-national) and those between traditional fields of law (e.g. constitutional, commercial and procedural law). Federico Ortino &

description. To a large extent the fields of trade and investment are viewed as discrete systems, and there are significant differences in the dispute settlement options available to foreign investors and those available to foreign traders.16 Investors have been protected by bilateral treaties permitting private rights of action in pursuit of money damages, while traders have been protected by the General Agreement on Tariffs and Trade and its successors, with institutionalized dispute settlement characterized by governments espousing the claims of traders and relief limited to prospective declaratory judgments.17 Yet many foreign investors are also traders, and vice versa. Each is thus protected by more than one treaty or treaty chapter, and is increasingly able to seek relief in multiple venues.

Nearly any court or tribunal may have a case before it that falls within the rather

broad realm of international economic law. Yet experience suggests that certain tribunals are more likely to play recurring roles in international economic law disputes than others, and are more likely to hear disputes that overlap or are related to disputes brought in other tribunals. The section below introduces those in which foreign investors, whether acting alone or with the assistance of their home states, are mostly likely to seek relief.18 It sets the stage for a deeper discussion in the ensuing sections of the fragmentation of power among tribunals and the potential for duplicative relief.

The International Court of Justice

The International Court of Justice (ICJ) is the preëminent international tribunal. It has decided rather few cases in the category of international economic law, but those it has decided have had lasting resonance given the position of the Court.19 The subject

Matteo Ortino, Law of the International economy: in need of a new methodological approach?, in INTERNATIONAL ECONOMIC LAW: THE STATE AND FUTURE OF THE DISCIPLINE (Colin Picker, Isabella Bunn & Douglas Arner eds., Hart Publishing, forthcoming 2007). 16 For a lucid and insightful analysis of these differences, see Alan O. Sykes, Public v. Private Enforcement of International Economic Law: Standing and Remedy, 34 J. LEGAL STUD. 631 (2005). Professor Sykes is one of the few to have addressed systematically the differences in the trade and investment regimes, a field that will repay increasing study as the protections offered to foreign investors become more robust and widespread. 17 Sykes, supra note 16, at 634. 18 It is therefore not a comprehensive listing of international tribunals. Cesare Romano, writing in 1999, compiled a list of over 40 permanent international tribunals. Romano, supra note xx, at 718-719. His list did not include ad hoc tribunals that could be constituted under various existing treaties. Id. 19 Two notable examples are Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 I.C.J. 15 (July 20) and The Barcelona Traction, Light & Power Company, (Belg. v. Sp.) [1970] I.C.J. 3 (Feb. 5). Barcelona Traction, one of the most famous cases that the ICJ has decided, has special significance for international economic law. Belgium, acting on behalf of Belgian shareholders of the Barcelona Traction, Light & Power Company, a Canadian corporation with significant electric utility operations in Spain, alleged that the Spanish government had failed to provide adequate protection to their assets when a group of Spanish privateers effectively seized the company. The ICJ rejected the claim on the grounds that the Belgian shareholders lacked standing to bring a claim on behalf of a corporation; only the corporation could act in its own interests. [1970] I.C.J. 3, paras. 41-47. Because this was a diplomatic protection case, the ICJ’s holding meant that only Canada could have brought a claim on behalf of the Canadian corporation; Belgium could not espouse the claims of the Belgian shareholders. Id. For a witty, fascinating account of the entire Barcelona Traction saga, including an in-depth portrait of the Spanish entrepreneur, Juan March, who took control of the company, see John Brooks, Annals of Finance: Privateer-1, THE NEW YORKER

matter jurisdiction of the International Court of Justice is very broad, but only states may submit cases to it for decision, and its jurisdiction over individual states depends on their consent.20 Its processes are often cumbersome, though it can act with dispatch on occasion.21 The Court uses international law to decide the cases submitted to it.22 The Court may give declaratory relief or may order states to pay damages.23

Given the limitations of the International Court of Justice, the development of

specialized tribunals was perhaps inevitable.24 And, indeed, several multilateral treaties, such as the General Agreement on Tariffs and Trade, its successor the Marrakesh Agreement Establishing the World Trade Organization (WTO), and the U.N. Convention on the Law of the Sea, have established tribunals to hear disputes brought under their constitutive treaties.25 The development of those and other specialized tribunals makes even less likely the Court’s hearing a significant number of investment cases in the future. The importance of the Court is not, however, limited to direct decision-making, but stems from the role its decisions play in other contexts. Notwithstanding the fact that the governing rules of the Court do not provide for its decisions to have a precedential effect, in practice they are often used in such a manner by claimants, defendants, and by other decisionmakers.26 The Statute of the International Court of Justice places judicial

(May 21, 1979); John Brooks, Annals of Finance: Privateer-2, THE NEW YORKER (May 28, 1979). International investment agreements have been at pains to ensure that Barcelona Traction does not limit the standing of individual investors to bring claims; for example, many such agreements include specific provisions permitting investors to bring claims notwithstanding indirect ownership or control of an investment in a host state. MEG KINNEAR, ANDREA K. BJORKLUND, JOHN F.G. HANNAFORD, INVESTMENT DISPUTES UNDER NAFTA: AN ANNOTATED GUIDE TO NAFTA CHAPTER 11, at 1116-6 to 1116-7 (2006); UNCTAD, I International Investment Agreements: Key Issues 117-18, 126-131 (2004). 20 Statute of the International Court of Justice arts. 34(1), 36(1), June 26, 1945, 59 Stat. 1031, T.S. No. 993. As of February 2006, 66 states had subscribed to the compulsory jurisdiction of the court. International Court of Justice, Declarations Recognizing as Compulsory the Jurisdiction of the Court (Feb. 16, 2006), available at http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicdeclarations.htm. A state that has not subscribed to the compulsory jurisdiction of the court can consent to individual cases being brought before the court either by means of a compromissory clause in a treaty or other agreement. ROSENNE’S THE WORLD COURT: WHAT IT IS AND HOW IT WORKS 70 (Terry D. Gill ed., 6th ed. 2003). 21 For example, in Breard, the Republic of Paraguay sought provisional measures from the International Court of Justice that would stay the execution of Angel Breard pending the Court’s decision on the proper interpretation of the United States’ alleged breach of the Vienna Convention on Consular Relations. The Court unanimously indicated provisional measures six days after Paraguay’s request. CONSTANZE SCHULTE, COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE 365-67 (2004). 22 Statute of the International Court of Justice, art. 38, para. 1. The ICJ may also decide a case ex aequo et bono, if the parties agree. Id. art. 38, para. 2. 23 [Rosenne] 24 Roslyn Higgins, International Law in a Changing International System, 58 CAMBRIDGE L. J. 78, 84-85 (1999). 25 General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194; Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, April 15, 1994, 33 I.L.M. 1125 (1994); United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]. 26 See, e.g., MOHAMED SHAHABUDDEEN, PRECEDENT IN THE WORLD COURT 107-10 (1996) (noting that the exclusion of stare decisis does not exclude decisions of the ICJ from having precedential force). The same is true of decisions made by other bodies, although their reach is often limited by context. See, e.g., Andrea K. Bjorklund, Investment Treaty Arbitral Decisions as Jurisprudence Constante, in INTERNATIONAL ECONOMIC LAW: THE STATE AND FUTURE OF THE DISCIPLINE (Colin Picker, Isabella Bunn & Douglas

decisions below the other sources of international law that it applies,27 but that directive has often been interpreted simply as an instruction to look to jurisprudence and doctrine for evidence of the existence of the rights and obligations of States, without particular reference to the hierarchy set forth in the ICJ Statute.28 Moreover, most agree that cases decided by international tribunals, including the International Court of Justice, do in fact contain “a law-creating element” – “If a judgment, especially of the highest court, has pronounced legal rules and principles, legal certainty requires adherence to these rules and principles in other cases, unless compelling reasons militate in favour of changing the case law.”29

The WTO Dispute Settlement Body The General Agreement on Tariffs and Trade, established in the aftermath of the

Second World War to govern the world trading system, contained a dispute settlement mechanism often characterized as “power-based.” Individual countries could block the adoption of the reports of any dispute settlement panel, and powerful states were frequently wont to do so. The WTO Dispute Settlement Understanding established a more judicialized dispute settlement process.30 Now, a state party to the WTO may challenge the implementation of the WTO agreements by other states party. At the initial stage a panel, drawn from a roster of judges, is convened to hear the dispute. The Marrakesh Agreement also established an appellate body before which states could challenge a panel’s findings. The existence of an appellate body has improved the prestige of the WTO and has brought a predictability into its decision making.

The WTO Dispute Settlement Body has limited jurisdictional reach; it only hears

disputes about the implementation by states of the WTO agreements. Only state parties may bring disputes to the WTO, although private parties often play significant roles in assisting their governments to present the cases.31 The WTO gives only prospective relief in the form of ordering a state to conform its actions to its WTO obligations.32

Arner eds., Hart Publishing, forthcoming 2007); Raj Bhala, The Myth About Stare Decisis and International Trade Law (Part One of a Trilogy), 14 AM. U. INT’L L. REV. 845, 849–932 (1999) (discussing the de facto precedential value accorded to GATT panels and WTO panel and appellate body decisions). 27 The primary sources of law are international conventions, international custom, the general principles of law recognized by civilized nations and “judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” ICJ Statute, supra note 22, art. 38. 28 See, e.g., SHABTEI ROSENNE, III THE LAW AND PRACTICE OF THE INTERNATIONAL COURT 1920-2005, at 1550-51 (2006). The subsidiary means are “the store-house from which the rules” of international law can be extracted. Id. at 1551. 29 THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A COMMENTARY 1244-45 (Andreas Zimmermann, Christian Tomuschat, & Karin Oellers-Frahm eds., 2006) [hereinafter ICJ STATUTE COMMENTARY]. 30 [John Jackson] 31 GREG SHAFFER, DEFENDING INTERESTS: PUBLIC-PRIVATE PARTNERSHIPS IN WTO LITIGATION 19-64 (2003). 32 [AJK – citation]

Regional Dispute Settlement Bodies

The WTO permits its members to form preferential trading blocs notwithstanding their obligations to provide most-favored-nation status to all other WTO parties; hence the existence of the European Union, the North American Free Trade Agreement (NAFTA), Mercosur, and the like. Not all believe such preferential blocks are effective or desirable. Jagdish Bhagwati, writing in 1995, characterized the rise in preferential trade agreements, as a “spaghetti bowl” phenomenon that “clutters up trade with discrimination depending on the ‘nationality’ of a good, with inevitable costs that experts have long since noted.”33

Some regional bodies are primarily concerned with trade, while others have a

different focus. NAFTA Chapter 19 focuses on trade matters, and provides for the establishment of binational panels to review the final decisions of each Party’s administrative authorities with respect to the imposition of antidumping or countervailing duty measures.34 The binational panels act in lieu of municipal judicial authorities; they review administrative procedures for conformance with the municipal laws of the state imposing duties, rather for conformance with international law. The panel review is started by a request from the NAFTA Party whose exports have been subject to duty. In that respect, it might be described as a traditional State-to-State proceeding. Yet “[a]ll parties who would have been able to appear before a court had the review proceeded through a national courts system . . . may appear before the Chapter 19 binational panel . . . . Thus, the procedure itself is neither wholly State-to-State nor wholly investor-State; it might best be described as sui generis.”35 NAFTA Chapter 19 panels can only remand to the administrative authorities for reconsideration of their earlier decisions in light of the panel’s determination. The United States has not included similar cases in its other free trade agreements; neither has Mexico or Canada.

The European Court of Justice has broad jurisdiction to consider cases brought by

member states and nationals of those states, and also by the European Commission. The European Court of Justice supervises the application of E.U. law by the member states. It also supervises the European Union’s institutions. The European Court of Justice ordinarily either validates or invalidates an official act, and thus does not usually order the payment of money damages, although it has the authority to do so.36

Human Rights courts are also potential venues for claims that might also be heard in

trade or investment tribunals. For example, the European Convention on Human Rights provides property protections.37 These are often considered more watered-down than 33 JAGDISH BHAGWATI & ANNE O. KRUEGER, THE DANGEROUS DRIFT TO PREFERENTIAL TRADE AGREEMENTS 2-3 (1995). 34 North American Free Trade Agreement [hereinafter NAFTA], art. 1904, Dec. 17, 1992, Can.-Mex.-U.S., 32 I.L.M. 605 (2003). 35 KINNEAR ET AL., supra note xx, General Section-37. Decisions of Chapter 19 tribunals can be challenged before an “Extraordinary Challenge Committee” at the request of one of the NAFTA State Parties to the dispute. NAFTA, supra note 34, art. 1904(13). 36 For example, the European Court of Justice ordered Greece to pay a fine for its continued failure to comply with a prior court decisions. Commission v. Greece (Case C-387/97, [2000] E.C.R. I-5047. 37 First Protocol to the European Convention on Human Rights, Nov. 4, 1950, 213 U.N.TS. 221, E.T.S. 5.

those in investment treaties, but the Court is well-established and effective, and is thus an attractive venue.38 The European Court of Human Rights has heard a number of expropriation cases.39 Recently a foreign investor abandoned his claim before an investment tribunal in favor of starting one before the European Court of Human Rights.40 Economic law cases are not only about property; matters of due process before administrative bodies or courts may also be at issue. Human rights courts are eminently well suited to hear such cases. Individuals may bring cases against states party to the European Convention, and the court may order damages as well as declaratory relief.41

Investor-State Arbitration Arbitration between states and individuals is an offshoot of private international

dispute resolution – the contract-based establishment of tribunals convened to hear commercial disputes. Individuals and corporations involved in cross-border transactions not surprisingly have wanted dispute resolution before neutral decision-makers and a minimum of jurisdictional wrangling. The growth of international arbitration has been facilitated enormously by the widespread adoption of the New York Convention on the Recognition and Enforcement of Arbitral Awards, a treaty that permits a party to an arbitration to enlist the coercive powers of national courts to enforce an arbitral award in his favor.42

Foreign investors are able to protect themselves and their investments in various

ways. For example, they can and do negotiate contracts with host states that contain arbitration provisions. These contracts can either establish an entirely ad hoc arbitral body, or they can refer the disputing parties to dispute settlement under the auspices of the ICSID Convention when both the host state of the investor and the host state are party to the Convention. The law governing these contract-based arbitrations is usually stipulated in the contract and is often municipal law, although the parties could agree to have their dispute governed by international law.

38 The Inter-American Convention on Human Rights offers similar protections and could be an attractive venue for such cases, although its enforcement mechanisms, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, have not been as active as the European Court. One interesting example is a case concerning the land rights of the indigenous community of Nicaragua and its demand for formal incorporation into the national land title system. The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, Inter-Am. Ct. H.R. (ser. C) No. 79, (Aug. 31,2001) 39 See, e.g., Sporrong and Lönnroth v. Sweden, 5 Eur. Ct. H.R. 35, 54 (1983) (Swedish government’s issuance of long-term expropriation permits and prohibitions on construction deprived the owners of their use of property in violation of the Convention because the owners bore an individual and excessive burden when compared to the general interests of the community). 40 [KAR - Citation] 41 [KAR citation] 42 Convention on Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3 [hereinafter New York Convention]. As of 2006, there were 142 signatories to the New York Convention. UNCITRAL, Status of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, (2006), http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html.

Individually negotiated arbitration agreements are not, however, the only way for investors to submit disputes against host states to arbitration. There is now a network of more than 2,400 investment treaties, most of which contain investor-state dispute settlement provisions.43 These investment treaties may be said to involve standing offers to arbitrate in the event certain conditions are satisfied. When the conditions precedent to arbitration are satisfied, an investor may accept the offer to arbitrate. These tribunals are hybrids in that they typically use private international law rules to resolve disputes whose foundation is usually in public international law.

Investors from a state that has an investment treaty with a host state may invoke the

protections of the treaty. Many treaties have what might be termed generous standing provisions – they cover investments that are controlled directly or indirectly by an investor from a treaty party. The substantive treaty protections set forth the obligations that a state has undertaken with respect to investments from the home state. These protections typically include an obligation to afford national treatment, most-favored-nation treatment, and the minimum standard of treatment under international law, including fair and equitable treatment and full protection and security. Host states also pledge not to impose performance requirements, to permit the repatriation of profits, and not to expropriate without payment of due compensation. But it is the ability to submit disputes to arbitration that is generally considered especially valuable to investors. Investors may submit cases to arbitration directly; they do not need to seek espousal by their home states. The relief given by investment treaty tribunals is usually limited to ordering money damages payable to the investor. Taken together, the above advantages suggest why investment treaty dispute resolution is so popular.44

Municipal Courts

Focusing only on international tribunals would not give adequate recognition to the role that municipal courts have played and will continue to play in foreign investors’ search for recompense. Municipal courts, usually in the host state, are the most obvious and likely the most frequently used venues for settlement of disputes between foreign investors and host governments, though there are no data on the number of disputes involving foreign investors that are finally resolved by local courts. Certain municipal courts are particularly likely to hear international commercial disputes.45

43 United Nations Conference on Trade and Development (UNCTAD), Developments in International Investment Agreements in 2005, UNCTAD/WEB/ITE/IIA/2006/7 (2006), p. 2. Many preferential trade and investment agreements (PTIAs) also contain BIT-like protections for investors and investments; the number of PTIAs had increased to 232 by the end of 2005. Id. at. 7. 44 The number of treaty-based disputes has risen substantially over the past several years; claims brought before the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) rose from three as of the end of 1994 to 132 as of November, 2005. UNCTAD, Investor State Disputes Arising from Investment Treaties: A Review, Pub. No. UNCTAD/ITE/IIT/2005/4 available at http://www.unctad.org/Templates/Page.asp?intItemID=1397&lang=1#, p. 4. UNCTAD also notes at least eighty-seven cases outside the auspices of the ICSID. Ibid., pp. 4-5. Thus, the total number of cases is about 219, over half of which have been filed within the past four years. Ibid. These numbers include only known cases; because some claims are kept confidential, the numbers are likely somewhat higher. Ibid., pp. 5-6 (noting that confidentiality of disputes exerts a “downward pressure” on the numbers). 45 See, e.g., Hein Kotz, The Common Core of European Private Law: Presented at the Third General Meeting of the Trento Project, 21 HASTINGS INT’L & COMP. L. REV. 803, 806 & n.4 (quoting Lord Goff:

Notwithstanding their apparent convenience, local courts in a host country may be

unattractive for a number of reasons. First, there may be questions of sovereign immunity. In the United States, for example, the federal governments and the states retain their immunity for a number of acts, including intentional torts.46 Many states have abrogated their sovereign immunity, though, so it will not pose an insurmountable hurdle in most cases.47 In a state in which the independence of the judiciary is questionable, foreign investors may fear that the government’s position is likely to be favored.48 Foreign investors may fear bias even when the judiciary is considered independent.49

Municipal courts in the home state of the investors will often be unavailable either for

lack of jurisdiction over the host state, or because foreign sovereign immunity will protect the host government. All of the western European nations, and many beyond, have adopted the restrictive theory of sovereign immunity, which holds that foreign governments do not enjoy immunity when they are acting jure gestionis (in a private capacity), but that they retain immunity when acting jure imperii (in a public capacity).50 The United States followed the lead of the European countries and codified the restrictive theory of immunity in the Foreign Sovereign Immunities Act of 1976.51 In the investor- “The English Commercial Court itself . . . [ ] must, I imagine, by far the most important court in the world for the resolution of international commercial disputes. Certainly there is nothing like it anywhere else in Europe. You can judge its international character by the fact that, in one year during which I had the honor to preside over the court, in every single case tried in the court either one or both parties came from overseas.”) 46 See, e.g., Federal Tort Claims Act, 28 U.S.C. 2674(h) (2006). 47 Gyula Eorsi, Private and Governmental Liability for the Torts of Employees and Organs, in 11 INT’L ENCYCLOPÆDIA. COMP. L. 172-73 (André Tunc ed., 1975). 48 These concerns are not new; they led to the negotiation of the International Convention on Settlement of Investment Disputes. Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, March 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159. 49 A recent study of foreign corporate defendants in U.S. courts suggests that they are more likely to lose cases than are U.S. corporate defendants. Utpal Bhattacharya, Neal E. Galpin, & Bruce Haslem, The Homecourt Advantage in International Corporate Litigation, J.L. & ECON. (forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=509008 (Aug. 2006). The authors note that bias is not the only reason for the disparate results, although they suggest that structural reasons, such as foreign firms’ having less familiarity with and less skill in dealing with the U.S. justice system, were unlikely to be important explanations. Id. (manuscript at 29). This study does not address situations where the plaintiffs are corporations, nor does it look at cases in which government, whether local or national, is the opposing party. The history of state responsibility for injuries to aliens, however, is replete with examples of bias in the courts. See JAN PAULSSON, DENIAL OF JUSTICE IN INTERNATIONAL LAW (2005); Andrea K. Bjorklund, Reconciling State Sovereignty and Investor Protection in Denial of Justice Claims, 45 VA. J. INT’L L. 809, 838-47 (2005). 50 William C. Hoffman, The Separate Entity Rule in International Perspective: Should State Ownership of Corporate Shares Confer Sovereign Status for Immunity Purposes?, 65 TUL. L. REV. 535, 537, 554 (1991) (discussing the “internationally predominant” restrictive theory of immunity); Pierre Lalive, L'immunite de Jurisdiction des Etats et des Organisations Internationales, III RECUEIL DES COURS 209, 215 (1953); Sinclair, The Law of Sovereign Immunity, II RECUEIL DES COURS 113, 121-46 (1980). 51 United States Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602, 1605 (2006). See also A.F.M. Maniruzzaman, State Enterprise Arbitration and Sovereign Immunity Issues: A Look at Recent Trends, 60:3 DISP. RES. J. 1 (Aug.-Oct. 2005) (discussing immunity of state-owned enterprises, as well as states themselves);

State dispute settlement context, foreign states will sometimes have acted in a private capacity, but will very often have acted in a public capacity as they enacted a government measure with deleterious effects on a foreign investor or his investment.

In rare circumstances a foreign investor may seek relief in the courts of a third state –

one that is neither the home nor the host state. First, one should recognize that it might be difficult to say which is the home state when an investment is controlled by one corporation that is in turn held by another corporate entity (or entities). In such a case, there may effectively be more than one home state.52 A third state may also have jurisdiction due to complexities of corporate ownership structure. Claimants, assisted by expansive jurisdictional reach in some countries, such as the United States, can be inventive in the ways in which they bring cases. One example is the recent case involving the Yukos Oil Company, a Russian-based multinational conglomerate whose assets were seized by Russian authorities, allegedly in response to fraud and tax evasion by Yukos’s principal, Mikhail Khodorkovsky.53 The Russian authorities put up for auction stock in one company responsible for managing 60% of the production of the Yukos Group (the average daily output of the group was more than 1.6 million barrels in 2003).54 In an attempt to stop the auction, managers of Yukos filed a voluntary bankruptcy petition in Houston, Texas and asked the court to issue a temporary restraining order to stop the auction in order to protect the bankruptcy estate.55 The court determined it had jurisdiction to administer the bankruptcy on several grounds, including the fact that a substantial portion of Yukos stock was owned by U.S. investors.56 The court accordingly issued a stay, but the Russian Government held the auction as scheduled, notwithstanding the Houston court’s order.57 Soon thereafter, the Houston court dismissed the case “for cause”58; though it did not specify the exact reason for the dismissal, the motion to dismiss cited, inter alia, bad faith, forum non conveniens, comity, and the act of state doctrine.59

A disincentive to seeking relief in municipal courts is that governing law will

usually be national law. In those situations in which municipal law is unlikely to grant relief, investors might prefer to go to an international tribunals in which they can allege violations of international law. In some states it might be possible to bring a claim based on international law; courts of countries in which investment treaties have direct effect,

52 See, e.g., the discussion of the Lauder cases, infra. 53 Matteo M. Winkler, Arbitration Without Privity and Russian Oil: The Yukos Case Before the Houston Court, 27 U. PA. J. INT’L ECON. L. 115, 115-16 (2006. 54 Id. at 116-17. 55 In re Yukos Oil Co., 321 B.R. 396, 399 (Bankr. S.D. Tex. 2005) 56 Yukos Oil Co. v. Russian Federation (In re Yukos Oil Company), 320 B.R. 130, 132 (Bankr. S.D. Tex. 2004). 57 Winkler, supra note xx, at 120. 58 In re Yukos Oil Co., 321 B.R. 396, 410-11 (Bankr. S.D. Tex. 2005). 59 Deutsche Bank AG’s Motion to Dismiss Chapter 11 Bankruptcy Case at 9-19, In re Yukos Oil Col., 321 B.R. 396 (Bankr. S.D. Tex. 2005) (No. 04-47742 (filed Dec. 28, 2004). The Yukos dispute did not end there; Yukos also sought to compel arbitration with the Russian Government under Russia’s foreign investment laws. Winkler, supra note xx, at 121-26. Other investors in Yukos whose home states have investment treaties with Russia suggest they will initiate arbitration under those treaties. [AJK – citation]

for example, will have jurisdiction to consider claims based on those treaties.60 Even then local political pressures might make it difficult for a judge to decide that a governmental measure comported with local law but violated international law.

Fragmentation and Duplication of Tribunal Authority A cursory glance at the multiplicity of mechanisms apparently available for the

resolution of international economic disputes suggests that states have favored investors by establishing many and varied options for dispute settlement. A closer examination, however, reveals a more complex picture and the genesis of the problems presented by fragmentation and duplication. Duplication and fragmentation are essentially two sides of the same coin; multiple tribunals whose authority extends to hearing cases arising from the same complex dispute may have some overlapping powers and some divergent powers. Thus, a particular dispute can offer elements of both fragmentation and duplication.

A preliminary point is that fragmentation and even duplication are not inherently

bad; each can potentially bring benefits, such as the establishment of tribunals with deliberately limited competences and highly specialized decision makers.61 Indeed, Professor Charney has suggested that the existence of multiple tribunals will eventually strengthen the International Court of Justice and the rule of international law.62

Yet it is the problematic aspects of fragmentation and duplication that have captured

the attention of commentators. Parallel and successive arbitral proceedings “have been controversial and, for some commentators and academics, portend a gathering crisis in the global system of international arbitration.”63 The fragmentation of responsibilities among international tribunals has been said to “threaten the coherence of the international legal system”64 and to “create the danger of conflicting and incompatible rules, principles, rule-systems and institutional practices.”65

60 Mexico, for example, had to provide especially for this possibility in the NAFTA by requiring investors to assert NAFTA claims either in Mexican courts or before international arbitral tribunals, but not both. NAFTA, supra note xx, annex 1120.1. 61 See Buergenthal, supra note xx, at 497 (“the proliferation of international courts is, on the whole, good for international law”); Jonathan I. Charney, The Impact on the International Legal System of the Growth of International Courts and Tribunals, 31 N.Y.U. J. INT’L L. & POL. 697, 698-99 (199-) (noting features that make disparate tribunals attractive, such as the special qualities of panel members) [hereinafter Charney, The Impact on the International Legal System]; International Law Commission, Study Group, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, 11 U.N. Doc. A/CN.4/L.682 (Apr. 4, 2006) (prepared by Martti Koskenniemi) (noting both positive and negative sides) [hereinafter ILC Fragmentation Report]. Other potential benefits include procedures that may vary from those established by the ICJ, or by other tribunals, such as secrecy, rules about intervention, and official language. Charney, Is International Law Threatened?, supra note xx, at 133. 62 Charney, Is International Law Threatened?, supra note xx, at 135. 63 David W. Rivkin, The Impact of Parallel and Successive Proceedings on the Enforcement of Arbitral Awards, in DOSSIERS: PARALLEL STATE AND ARBITRAL PROCEDURES IN INTERNATIONAL ARBITRATION 269, 269 (Bernardo M. Cremades & Julian D.M. Lew eds., 2005). 64 Charney, The Impact on the International Legal System, supra note xx, at 699. 65 ILC Fragmentation Report, supra note xx, at 11.

Whether these somewhat dire predictions will be confirmed is yet to be seen. At the

least, however, complex economic transactions that often involve multiple actors in multiple countries transcend the boundaries between dispute settlement regimes in a manner that requires some coordination. Barriers to such coordination are rooted in the traditional public international law doctrines centering on the nation-state as the primary actor on the international stage. These conceptions tend to magnify problems of fragmentation and to minimize problems of duplication, although the perceptions of the illegitimacy tied to duplicative proceedings will often remain. In section C below, these problems are illustrated by an examination of the relationship between states and private individuals as parties to proceedings; the conceptual distinctions between the subjects of different dispute settlement hearings; and the potential for double recovery.

Duplication Concerns about the potential for duplicative relief permeate the literature about forum shopping in municipal courts.66 Many international tribunals have overlapping jurisdictions leading to parallel or sequential proceedings in which the objective is duplicative or substantially similar relief. As Yuval Shany has said, “[J]urisdictional conflicts between different international courts and tribunals (and quasi-judicial procedures) are not only possible, but are a real and inevitable phenomenon.”67 The infamous investor-State cases involving Ronald Lauder – one involving Lauder himself submitting a claim to arbitration against the Czech Republic under the U.S.-Czech Republic bilateral investment treaty,68 the second involving Lauder’s Dutch subsidiary submitting a claim to arbitration under the Netherlands-Czech Republic bilateral investment treaty69 – sparked a similar outcry on the international front.70 The concerns about duplication are similar both municipally and internationally. Duplicative filings can lead to inefficiency of process as disputes arising from the same

66 See, e.g, Debra Lyn Bassett, The Forum Game, 84 N.C. L. REV. 333, 337 (2005) (“Critics of forum shopping charge manipulation, wrongdoing, and abuse by lawyers (invariably plaintiffs' lawyers) to obtain a forum and substantive law to which they are not entitled.”); Kimberly Jade Norwood, Shopping for a Venue: The Need for More Limits on Choice, 50 U. MIAMI L. REV. 267, 307 (1996) (suggesting sanctions are appropriate for lawyers engaging in forum shopping). These concerns abound whether or not the forum shopping crosses national borders. See N. Jansen Calamita, Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings, 27 U. PA. J. INT’L ECON. L. 601, 608-09 (2006) (“[T]he battle for where litigation is to take place may often be the most important and bitterly fought issue in a transnational case.”) 67 YUVAL SHANY, THE COMPETING JURISDICTIONS OF INTERNATIONAL COURTS AND TRIBUNALS 73 (2003). 68 Ronald S. Lauder (U.S.) v. The Czech Republic, UNCITRAL (Sept. 3, 2001) (Award) [hereinafter Lauder Award]. 69 CME Czech Republic B.V. (Neth.) v. The Czech Republic, UNCITRAL (March 14, 2003) (Final Award) [hereinafter CME Final Award]. 70 See Susan D. Franck, The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, 73 FORDHAM L. REV. 1521, 1559-68 (2005); Charles N. Brower & Jeremy K. Sharpe, Multiple and Conflicting International Arbitral Awards, 4 J. WORLD INVESTMENT 211, 216 (2003) (quoting counsel for the Czech Republic as describing situation as “absolutely ludicrous, and highly regrettable for the fact that it makes the law look so stupid.”) (internal citations omitted); Michael Goldhaber, Czechmate, AM. LAW., March 2002, pg. 82.

underlying set of facts are litigated or arbitrated at great time and expense. The legitimacy of the dispute settlement system or systems may be undermined because of the perception that claimants have too many places in which they can seek relief. There is a risk that tribunals will come to inconsistent decisions about liability and/or the payment of damages. The problems arising from inconsistent decisions are twofold: one is the practical problem of reconciling the two disparate decisions in further tribunals called upon to enforce the awards; the second is the philosophical problem that the legitimacy of the dispute settlement bodies at issue will be compromised because of the inconsistent outcomes. Finally, there is the possibility that a claimant will get duplicative recovery, an outcome that suggests substantive unfairness in the process itself. Before undertaking a systematic analysis of duplicative proceedings and comparing them to fragmented proceedings, it is necessary to identify what characteristics identify proceedings as duplicative or fragmented. These characteristics are the identity of the parties, the applicable law, and the nature of the available relief. The first two criteria are contained in the principles of lis alibi pendens and res judicata and thus determine when concurrent parallel proceeding should be suspended and when a completed proceeding should preclude the prosecution of a case in a subsequent tribunal.71 The third element – duplicative relief – may in fact be the most important, at least insofar as perceptions of fairness and legitimacy are concerned.

Fragmentation Using the preceding characteristics as a basis for analysis suggests that international

dispute resolution is more often characterized by fragmentation than by duplication. Fragmentation occurs when one applies the same factors – identity of the parties, the law applicable to the dispute, and the relief available – and finds that at least one of them differs. Again the third element may be the most important, and may of course be affected by the identity of the parties to the dispute.

The occurrence of fragmentation is not surprising. First, many international tribunals

were created to hear disputes in what are essentially closed legal systems.72 Most international tribunals are tied to a treaty and have jurisdiction limited to disputes that arise under that treaty.73 This has led to the development of apparently discrete legal 71 The first two of these criteria are the ones usually necessary to establish res judicata in a subsequent proceeding. See Pious Fund of the Californias (Mex. v. U.S.) (Hague Ct. Rep. (Scott) 1, 5 (Perm. Ct. Arb. 1902). Res judicata is generally not available as between proceedings in national courts and national tribunals. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 52 (5th ed. 1998); William S. Dodge, National Courts and International Arbitration: Exhaustion of Remedies and Res Judicata Under Chapter Eleven of NAFTA, 23 HASTINGS J. INT’L & COMP. L. 357, 367-70 (2000) (listing five reasons for this practice). For a discussion of lis alibi pendens, see Douglas D. Reichert, Problems with Parallel and Duplicate Proceedings: The Litispendence Principle and International Arbitration, 8 ARB. INT’L 237 (1992). 72 See C. Wilfred Jenks, The Conflict of Law-Making Treaties, 30 BRIT. Y.B. INT’L L. 401, 403 (1953) (“[L]aw-making treaties are tending to develop in a number of historical, functional and regional groups which are separate from each other and whose mutual relationships are in some respect analogous to those of separate systems of municipal law.”). 73 Thus, for example, the WTO dispute settlement system is charged to “preserve the rights and obligation of Members under the covered agreements, and to clarify the existing provisions of those agreements in

systems between which there is limited interaction.74 Thus, one tends to have different tribunals hearing disputes that arise under different treaties, even if those disputes might arise from related or even identical transactions.

The problem of fragmentation in international law is starting to receive a great deal of

attention.75 This work has focused on fragmentation in the formation of customary international law and the interrelationship of principles developed in closed systems of law related to particular treaties.76 It has not examined fragmentation in the disputes settlement options themselves or its effect on those dispute settlement bodies and the parties before them.

Second, traditional views of the roles of the state and the individual in international

law tend to push towards fragmentation. The rigid distinctions between states and individual claimants that are the legacy of the Westphalian tradition of public international law are reflected in many institutions.77 Thus, while investors have more rights before international tribunals than hitherto was the case, they still often lack standing. The applicable law in various tribunals differs, and often tribunals have authority to grant only limited forms of relief. These limitations encourage filing before multiple tribunals.

Fragmentation may not give rise to the double-dipping problems exemplified by duplicative processes. It may nonetheless be wasteful in the sense that parties must duplicate their efforts in different fora. It may also give rise to perceptions of illegitimate use of dispute resolution processes insofar as technical distinctions between parties, causes of action, or relief sought are obscured behind rhetoric and broad-brushed descriptions of the dispute at issue.

The Effect of Public International Law Principles

Traditional public international law principles did not allow room for non-state actors. Private international law dealt with the transnational relationships between private entities.78 Private international law was in fact the municipal law that a state developed

accordance with customary rules of interpretation of public international law.” Understanding on Rules and Procedures Governing the Settlement of Disputes, art. 3(2). International law, apart from the treaties themselves, thus plays only an interpretive role in WTO decision making. 74 Charney, Is International Law Threatened?, supra note xx, at 130 (noting specialized tribunals’ tendency to cite to Permanent Court of International Justice and ICJ awards but less to the awards of other tribunals). 75 See generally ILC Fragmentation Report, supra note xx,; Charney, Is International Law Threatened?, supra note xx. 76 ILC Fragmentation Report, supra note xx; Charney, Is International Law Threatened?, supra note xx. 77 The 1648 Treaty of Westphalia is usually credited with ushering in an international legal order deriving its authority from the nation state; it also established that nation states had absolute sovereignty over their territory and were to be treated as equals in the international order. See BROWNLIE, supra note xx, at 57-58. For an historical and contextual account of the Peace of Westphalia, see PHILIP BOBBITT, THE SHIELD OF ACHILLES: WAR, PEACE AND THE COURSE OF HISTORY 501-19(2002) 78 [DICEY & MORRIS]

to manage cross-border transactions and relationships.79 In that sense, it was not “international law” at all. The dichotomy between the private and the public80 may have made more sense in a world governed by a strong Westphalian tradition in which states were the only actors empowered to assert rights under or seek the protections of public international law. But the state is no longer the only actor on the global stage.81 The “transnational law” presciently discussed by Judge Philip Jessup is an increasingly common feature of modern life.82 Dean Harold Koh has described a transnational legal process that “is nonstatist: the actors in this process are not just, or even primarily, nation-states, but include nonstate actors as well.”83 Dean Anne-Marie Slaughter has described a disaggregated world order characterized by regulatory, judicial, and legislative government networks and non-governmental networks that interact with each other both formally and informally.84 As the foregoing demonstrates, the global legal order is best characterized as pluralistic. Non-state actors play formal roles before many dispute settlement tribunals. Notwithstanding this advance, however, substantive international law has not kept pace with this recognition of non-state actors as having status before international tribunals. Most international law was developed for application in a world in which states were the only actors. Obligations understood as obtaining between states may transfer uneasily to obligations understood as obtaining between states and private individuals.85 Entrenched views that individuals have status on the international plane only derivative of their protecting states result in the conclusion that international disputes involving claimants with different nationalities effectively involve disputes with different states,

79 GEORGE GRAFTON WILSON, INTERNATIONAL LAW 4 (9th ed. 1935) (1901) (“Private international law . . . treats of the rules and principles which are observed in cases of conflict of jurisdiction in regard to private rights. These cases are not strictly international, and a better term for this branch of knowledge is that given by Judge Story, ‘The Conflict of Laws.’”) This distinction was always in some sense overdrawn: private actors were affected by public international law even at the height of the Westphalian order. 80 The oft-misleading taxonomy “public” law and “private” law exists in municipal law as well. For discussions of the public/private distinction generally, see Peter Cane, The Anatomy of Private Law Theory: A 25th Anniversary Essay, 25 OXFORD J. LEGAL STUD. 203, 212-14 (2005) (discussing the philosophical bases for distinguishing public and private law); Randy E. Barnett, Foreword: Four Senses of the Public Law-Private Law Distinction, 9 HARV. J. L. & PUB. POL’Y 267 (1986) (discussing the relationship between the public/private law distinction and legal regulation). 81 “It is now well established that the individual is a subject of international law, though not in all the same respects as states and international organizations.” M. Cherif Bassiouni, The Perennial Conflict Between International Criminal Justice and Realpolitik, 22 GA. ST. U. L. Rev. 541, 548 (2006); see generally ALVAREZ, supra note xx, (discussing role of international organizations in the formation and application of international law). 82 PHILIP C. JESSUP, TRANSNATIONAL LAW (1953). 83 Harold H. Koh, Transnational Legal Process, 75 NEB. L. REV. 181, 184 (1996) 84 ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 132; passim (2004). 85 The International Law Commission’s State Responsibility Articles leave open the possibility that individuals may play a role in international disputes, but do not address the matter directly. Article 33 provides: “This Part [on the scope of international obligations] is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a state.” Report of the Commission At Its Fifty-third Session, U.N. Doc. A/56/10 (2001).

notwithstanding any corporate or other relationship between the claimants. This interpretation tends to fragment disputes that may arise from the same or related factual bases and to limit the possibility for their coordination. On the other hand, the more flexible view that claimants have rights of their own, while potentially diminishing the fragmentation of disputes, poses other interpretive problems.

Identity of the Parties

When only states had identity in international law, only states could be the parties to international disputes. In most international tribunals, then, states sought damages or redress for injuries done to the state itself. Sometimes, though, the state was actually seeking redress for injury done to one of its nationals. This led to the establishment of the principle of diplomatic protection or espousal – the legal fiction that an injury to a state’s national was an injury to the state itself.86 A third possibility was that the home state of a national could bring claims alleging direct injury to the state the favorable resolution of which would also redound to the benefit of the private entities.

States are still the most usual claimants in international tribunals, although some

tribunals have permitted limited informal participation by non-governmental entities.87 In the economic law realm, private entities, both individual and corporate, have in many circumstances the right and the ability to bring claims on their own behalf.88 In fact, investors can not only choose which forum they prefer, but also may bring their claims simultaneously, or sequentially, in those different tribunals.89

In most instances individuals have rights to bring their own claims before

international tribunals because states have conferred those rights on them by treaty.90 This most commonly happens in the case of bilateral investment treaties, in which the

86 Bjorklund, supra note xx, at 821-25. 87 The WTO Appellate Body has held that it had the authority to consider amicus curiae-type submissions from non-governmental organizations in certain circumstances. The member states, however, disapproved of the Appellate Body’s conclusion, and the WTO dispute settlement bodies have not revisited the issue. Article 16.1 of the DSU makes clear that any ruling under that provision sets forth procedures for that case only; a majority of WTO members have yet to acquiesce in the panel and appellate body rulings permitting amicus submissions. Minutes of the General CouncilMeeting (22 November 2000), WT/GC/M/60. In the ICJ case Gabčikovo-Nagymaros Project, the ICJ informally considered a submission from a non-governmental organization. 88 These rights are conferred usually by investment treaties, whether multilateral or bilateral. UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT, 1 INTERNATIONAL INVESTMENT AGREEMENTS: KEY ISSUES 17-20 (2004). 89 See, e.g., Joost Pauwelyn, Editorial Comment: Adding Sweeteners to Softwood Lumber: the WTO-NAFTA ‘Spaghetti Bowl’ is Cooking, 9 J. INT’L ECON. L. 197 (2006); August Reinisch, The Use and Limits of Res Judicata and Lis Pendens as Procedural Tools to Avoid Conflicting Dispute Settlement Outcomes, in 3 The Law and Practice of International Courts and Tribunals 37 (2004); Christer Söderlund, Lis Pendens, Res Judicata and the Issue of Parallel Judicial Proceedings, 22 J. INT’L ARB. 301 (2005); Katia Yannaca-Small, Parallel Proceedings, in OXFORD HANDBOOK OF FOREIGN INVESTMENT LAW (Peter Muchlinski & Federico Ortino eds., Oxford U. Press, forthcoming 2007). 90 When private entities enter into state contracts that contain arbitration clauses with the host government, they do so without the intermediary action of their home government, and are then direct beneficiaries of those agreements. To the extent that the contract refers to arbitration under the ICSID Convention, however, some of the rights may more properly be viewed as conferred on the individuals by the state.

states party negotiate special protections for foreign investors, and the ability of those foreign investors to vindicate their claims before ad hoc international arbitral tribunals. This conferral can be viewed in two different ways: one is that it is a kind of “delegated espousal,” and the other is that the individuals become third-party beneficiaries of the treaties, with all of the rights pertaining thereto. The two approaches are described below, followed by an exploration of the ramifications of each for the duplication and fragmentation of proceedings.

Delegated Espousal What I call the “delegated espousal” model builds on the traditional view that states

are the only proper subjects of international law, and treaties “bestow legally enforceable rights only on states, and not directly on individuals.”91 Thus, an injury to a national of the state is an injury to the state itself, for which the state could seek redress under the doctrine of espousal. A state that negotiates the ability for its national to bring a claim on its own behalf is thus delegating its espousal capability to its national.

This premise may seem unduly cumbersome, but it is consistent with the view that

states negotiate treaties to confer benefits on themselves, and that a violation of a treaty the treaty is an injury to the state. 92 Most investment treaties do not preclude the possibility of espousal; while in most cases an individual will prefer to bring a claim himself, he retains the option trying to persuade his home state to pursue a claim on his behalf.93 Finally, states retain the ability to withdraw from treaties.94 In that respect, they would seem still to be the primary actors.

Third-Party Beneficiaries A second possible approach is that, in contract-law terms, individuals who have been granted the ability to submit claims of violations of international law on their own behalf become third-party beneficiaries of the treaties. Third party beneficiaries may enforce a right when doing so is appropriate to effectuate the intention of the parties and when “‘the circumstances indicate that the promisee [the contracting state] intends to give the beneficiary (the foreign citizen) the benefit of the promised performance.’”95 This is 91 Robert Anderson, IV, “Ascertained in a Different Way”: The Treaty Power at the Crossroads of Contract, Compact, and Constitution, 69 GEO. WASH. L. REV. 189, 243 (2001). 92 This was the argument always made against the “Calvo” clauses that many Latin American countries insisted be included in contracts between foreign investors and the State. The Argentine jurist Carlos Calvo argued that aliens should be given no better treatment than nationals of a host state; thus, aliens signing a contract with a host government should waive their right to seek diplomatic protection from their home states, as the home state’s espousal of its nationals claim conferred an extra advantage. Aliens signed contracts containing such waivers, but they were later held invalid by mixed claims commissions entrusted with resolving later disputes on the grounds that the ability to espouse a claim belonged to the government and could not be waived by an individual. DONALD R. SHEA, THE CALVO CLAUSE 3-8 (1955). 93 Diplomatic protection is often precluded by the terms of the treaty in the event that an individual commences investor-State dispute settlement on its own behalf. In the event the respondent state refuses to cooperate in good faith with the privatized dispute settlement mechanisms, however, an individual may request diplomatic protection. 94 Vienna Convention on the Law of Treaties, arts. 54-64 1155 U.N.T.S. 331, (entered into force Jan. 27, 1980). 95 Anderson, supra note xx, at 243 (quoting Restatement (Second) of Contracts § 302 (1981)).

analogous to the treatment in municipal law of those treaties that confer on private individuals the ability to enforce the treaty provisions in the courts of that individual’s country.96

Little has been written about individuals as third-party beneficiaries to investment treaties. Some writers, and the Restatement (Third) of the Foreign Relations Law of the United States have recognized that states may be third-party beneficiaries of a treaty, although the extent of the rights conferred is unclear.97 It has been suggested that individuals have rights under tax treaties, but that the situation is better resolve by granting individuals explicit rights under the treaty, rather than requiring that they rely on implication or status as third-party beneficiaries.98

A significant benefit of this approach is that it appears consistent with the intentions of the states and with the processes of the treaty dispute settlement provisions. It strips away the fiction that the state is the injured party in favor of the straightforward fact that most of the time the injury is done to the claimant. The dispute settlement provisions of bilateral investment treaties permit individual claimants to bring their own claims; claimants also choose how to prosecute their cases and whether or not to settle them. The third-party beneficiary approach is thus consistent with the treaty provisions that give individual claimants autonomous rights separate from those of their home states.

The Delegated Espousal and Third-Party Beneficiary Approaches Compared

The distinctions between the “delegated espousal” and “third-party” beneficiary approaches are not merely semantic. They relate to the relationship between claims under different treaties that may arise from similar events. Take, for example, the hypothetical situation where States A and B each have an investment treaty with State C. State C enacts a measure that allegedly violates customary international law and injures property owned or controlled by claimants (a) and (b) from states A and B. Those claimants subsequently file claims under their respective bilateral investment treaties. If an injury to claimant (a) is properly perceived as an injury to State A, and an injury arising out of the same cluster of events to claimant (b) is properly perceived as an injury to State B, then one would have to conclude under principles of public international law that these are separate injuries, notwithstanding their common origin, and

96 See Lea Brilmayer, International Law in American Courts: A Modest Proposal, 100 YALE L. J. 2277, 2304 (1991). 97 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 324 (1987) (an international agreement creates neither rights nor obligations for a third state without its consent; rights or obligations are created only if the parties to the agreement intend to confer the right or establish the obligation and the third state accepts the right or obligation); Note, Rachel Anderson, Redressing Colonial Genocide Under International Law: The Hereros’ Cause of Action Against Germany, 93 CAL. L. REV. 1155 (2005) (viewing rights of Herero gained under treaty as possibly conferring on them third-party beneficiary rights). 98 William W. Park, Income Tax Treaty Arbitration, 10 GEO. MASON L. REV. 803, 831 (2002). Professor Park also notes that third party beneficiaries have been recognized in the context of life insurance policies and forum selection clauses. Id. at n. 64.

notwithstanding any relationship between claimants (a) and (b). This is a fragmenting conclusion, but is consistent with the approach that States Aand B are effectively the injured parties. If, however, an injury to claimant (a) is just that, and an injury arising out of the same events to claimant (b) is nothing more than that, then the question of duplication centers on the relationship between claimants A and B. If they are related entities such as a parent corporation and its subsidiary, then corporate law principles would govern whether these were in fact duplicative claims, and the potential for coordinating these claims would be greater.

In fact, investor-State treaties often have exceptionally broad standing provisions that permit foreign investors who “own or control, directly or indirectly,” investments in a host state, to bring claims on behalf of that investment.99 Thus, it is possible that more than one investor can bring a claim on behalf of a single investment. This broad standing capability raises the possibility of multiple proceedings arising from the same set of facts; whether these proceedings are duplicative or fragmented depends on one’s view of the status of the relevant parties.

The divergent approaches I suggest above would also potentially change the position

of individual claimants with respect to a state’s withdrawal from a treaty, or a state’s settlement of a dispute that effectively waived some of the protections of the treaty vis-à-vis certain claimants. One question involves the duration of the primary obligations that states undertook in the treaties, such as the obligations to afford national treatment and most-favored-nation treatment to foreign investors. Under a delegated espousal approach, a state’s decision to withdraw those protections would quite possibly end those protections with respect to the investor. Under a third-party beneficiary approach, however, the obligations could be viewed as persisting at least as to the investments made while the treaty was in effect. A second question about treaty withdrawal involves the duration of the secondary rights – of the ability to submit claims of violations of those primary rights to arbitration. Under a delegated espousal approach, the ability of an individual to vindicate the rights hitherto available under the treaty could end as well, if a state were permitted to revoke its delegation. If, on the other hand, the individual were a third-party beneficiary his vindication rights might persist, notwithstanding the termination of the primary rights as of a date certain.

These different approaches also affect the possibility of settlement. It is possible that

a state could enter into a settlement agreement in a complex dispute that would affect the rights of the individual parties. If the individual claimants merely were delegated the ability to espouse the claim, it is possible that the state could settle the claim on their behalf, assuming again that it could effectively revoke the delegation. If the individual claimants were third-party beneficiaries, the state could not settle the case without their consent.

99 See, e.g. NAFTA supra note xx, art. 1116.

A third area of interest is the ability of individual claimants to waive claims that they might be able to bring under an investment treaty. If they are merely delegated the espousal ability that properly viewed belongs to the state, they would not be able to waive their claims. If they are third-party beneficiaries, however, one might presume that they could waive claims under the treaties, either before or after a dispute had arisen.100 Investment treaties typically grant concessions that give broader access to the market to foreign investors It seems paradoxical for the state then to require that investors waive the dispute settlement protections of the very treaty that might have attracted them in the first place. Yet this interpretation might give greater weight than should be given to the dispute settlement provisions of the BIT. Other BIT provisions arguably have equal or more weight when it comes to attracting foreign investment.101

Applicable Law Forum shopping is attractive to claimants in municipal courts because of the

possibility that some tribunals will prove to be more favorable venues in which to try their claims than others. The attractiveness usually stems from advantages in substantive law or procedure, or both. Tribunals that offer the potential to resolve international economic law claims offer some of the same attributes, but with some unusual features. Foreign claimants seeking relief for those matters need to consider these attributes, and in particular applicable law, in making their choice of forum.

Many tribunals were formed by particular treaties to resolve disputes arising only

under that treaty. To the extent that a dispute involves multiple treaty violations, a claimant may need to seek relief in multiple tribunals to be made whole, or to vindicate different rights. The differences in applicable law among these tribunals are relatively distinct and reveal what might be termed inter-systemic fragmentation. While filing in multiple fora will require duplication of effort, it may or may not lead to duplicative relief.

Because individuals have limited standing before many international tribunals, their

options will be to some degree limited. They may not bring a claim before the WTO unless their home state espouses their claim, and Dispute Settlement Body decides only if a state measure is consistent with the WTO Agreements. It does not consider whether a state’s behavior results in other violations of international law, or other violations of municipal law. The European Court of Justice will only decide if a member state’s measure is consistent with its Community obligations. A NAFTA Chapter 19 tribunal similarly has a different purview, as does a NAFTA Chapter 11 tribunal.102

100 This approach, however, has yet to be adopted by tribunals hearing hybrid investor-State disputes. [Vivendi, etc.] 101 [Yackee paper] 102 See Jon Johnson, The Effect of the Softwood Lumber Agreement 2006 on the NAFTA Chapter Nineteen Binational Panel Process, Goodman’s Update (Nov. 24, 2006) , available at http://www.goodmans.ca/index.cfm?fuseaction=PublicationDetail&primaryKey=684 (noting distinction between WTO and NAFTA binational process and Canada’s two-track strategy to gain relief).

A slightly different result might ensue when one looks to ad-hoc tribunals formed to decide cases brought under investment treaties. One reason investor-State dispute settlement has proven so attractive is that claimants need not persuade their home states to espouse their claims. The law applicable in an investor-state proceeding is usually the law of the treaty, plus customary international law norms, such as fair and equitable treatment and full protection and security, that are incorporated into the treaty by reference.103 These obligations are often replicated in different treaties. One might query whether a single state measure in violation of those obligations results in a single breach of international law for which separate claims can be filed, or whether there are independent breaches of international law.

This outcome leads to potentially duplicative claims for recovery, albeit under

ostensibly separate causes of action. The inefficiency and potential unfairness in this result suggest that a different conception of the injuries involved would be desirable. Concluding that the obligations in question were owed to the investors, rather than to the home countries of the investors, under a third-party beneficiary theory would permit a more detailed analysis of the relationship between the investors and their investment. One could then analyze whether the investors were indeed alleging conceptually distinct injuries, or whether in fact the injuries were the same and recompensable only once.

Relief Available

Claimants submit claims to dispute settlement to get relief. They may want vindication in the form of a declaratory judgment, they may want injunctive relief to prevent further injury, or they may want money damages. Tribunals differ significantly in the kinds of relief they can give, and often their authority is extremely limited. This means that a claimant seeking redress for allegedly wrongful measures may be forced to go to different tribunals in order to get comprehensive relief. An individual claimant may, however, be limited in his options because he will have standing before very few tribunals. A private claimant acting in concert with his home state will have the most options. The WTO Dispute Settlement Body, for example, can order only prospective relief. It can determine that a member state has been violating its WTO obligations and order that the state bring its practice into compliance, but it has no authority to order retroactive relief or the payment of money damages. A NAFTA Chapter 19 tribunal is also limited in authority. It reviews decisions of the administrative authorities of the member states in accordance with the standard of review that would be employed by the domestic court charged with reviewing. Thus, a tribunal reviewing a decision of a U.S. administrative authority employs “Chevron” deference104 to the agency’s ruling. The tribunal can remand to the agency to revisit its methodology or to devise a new

103 See generally UNCTAD, FAIR AND EQUITABLE TREATMENT (1999); KINNEAR ET AL, supra note xx, 1105-6 to 1105-15. 104 [Chevron]

methodology, but it cannot “substitute its judgment for that of the agency.” It also cannot order the payment of damages.105

An investor-state tribunal, including one formed under NAFTA, usually has the authority only to order money damages. Those money damages can be both retrospective and prospective. Investor-state tribunals have no authority to issue injunctive or declaratory relief. NAFTA Chapter 11 provides that should provisional measures in aid of arbitration be necessary the claimant can seek them from a municipal court. In many instances, claimants who pursue relief from multiple tribunals will not get duplicative recovery even if they are successful in more than one venue. In some cases, however, decisions based on different laws will conflict, or will need to be reconciled. In rare cases, tribunals will indeed order what appears to be duplicative relief. Whether it is actually a case of “double-dipping” or not may depend on how you view the parties to the different disputes, or on whether the applicable laws should be viewed as causing separate injuries deserving of separate recompense.

Fragmentation and Duplication Reified: The Lumber & Lauder Cases

Lest one imagine that cases of adjudicatory competition are theoretical only, it is useful to give some examples of the cross-jurisdictional nature of some recent cases.

The Softwood Lumber Cases

The Softwood Lumber cases between the United States and Canada illustrate the allocation of authority among various tribunals and the resulting disaggregated nature of proceedings that all arose from fundamentally the same dispute. The Softwood Lumber dispute offers a quintessential example of the fragmentation of responsibility among various tribunals. That is not to say there is no duplication in the efforts of the tribunals seised with the lumber dispute and the potential for limited duplication in relief offered. But Softwood Lumber overwhelmingly illustrates the fragmentation among tribunals with respect to appropriate parties, to applicable law, and available relief.

History of the Softwood Lumber Disputes The United States and Canada have been disputing about softwood lumber exported

from Canada to the United States for nearly 25 years.106 There have been four trade cases, most of which contained multiple stages. The first two, Lumber I and Lumber II,

105 A Chapter 19 tribunal also cannot order the disbursement and repayment of duties already collected, although if the Commerce Department revokes an order pursuant to a panel remand the same disbursement and payment proceedings that apply to domestic procedures should apply in the aftermath of a Chapter 19 tribunal decision. NAFTA, supra note xx, art. 1904(15). The United States has argued that NAFTA panel decisions have prospective effect only, but has lost that argument at the Court of International Trade. Tembec Inc. v. United States, 461 F. Supp. 2d. 1355, 1359-60 (Oct. 13, 2006) 106 The dispute usually dates to the first countervailing duty case filed against Canada in 1982. The United States Coalition for Fair Lumber Imports filed a claim on October 7, 1982, but the case ended in 1983 when the Department of Commerce issued a final determination that Canada had not subsidized the softwood lumber industry. 48 Fed. Reg. 24159 (May 5, 1983). See generally WILLIAM J. DAVEY, PINE & SWINE 172-79, 232-50 (1996).

predated the North American Free Trade Agreement and its predecessor, the Canada – United States Free Trade Agreement.107 Lumber III, a five-year saga that tested the newly minted binational panel process set out in Chapter 18 of the Canada – United States Free Trade Agreement, ultimately ended in an agreement under which Canada imposed voluntary restraints on the exports of lumber to the United States.108 The most recent iteration, Lumber IV, involved a constellation of disputes that were considered for more than five years by various national and international bodies before also ending in settlement.

The softwood lumber dispute is fundamentally about differences in the ways in which Canadian and American harvesters acquire standing timber, or the right to cut down standing timber. In the United States, approximately 70% of all timberland is privately owned. While the U.S. timber industry owns about 15% of all private timberland, it purchases most of its standing timber from other private landowners.109 By contrast, almost 95% of Canada’s standing timber is publicly owned.110 Provincial governments are responsible for forest management, including harvesting. Stumpage programs are the means by which the provinces administer their timberlands. In general, stumpage programs entail long-term tenure agreements by which a provincial government grants the right to harvest timber to a contracting company. Tenure holders must agree to certain obligations, such as road development, ecosystem management, and minimum cut requirements. When a tenure holder exercises its harvesting rights, it pays “stumpage fees” based on the volume of timber cut. Canada exports much of its lumber, primarily to the United States. In the softwood lumber dispute, the primary claim of the U.S. petitioners is that stumpage programs constitute unfair subsidies. Canadian producers, the petitioners contend, pay far below fair market value for logs they acquire through stumpage systems, which gives their exports an unfair price advantage against domestic U.S. products.111 The Canadian respondents deny that unfair subsidies exist. Their position is that stumpage programs do not include subsidies. Moreover, Canadian tenure holders incur a 107 Lumber II was terminated by a Memorandum of Understanding (“MOU”) whereby Canada agreed to impose a tariff of 15% on all lumber exports to the United States. The Softwood Lumber Cases (Canfor Corp. and Terminal Forest Products Ltd. v. U.S.), Decision on Preliminary Question, para. 57 (June 6, 2006). The Canada-U.S. Free Trade Agreement was signed while the MOU was still in force, and included provisions recognizing and upholding the MOU. Canada –U.S. Free Trade Agreement, Jan. 2, 1988, U.S.-Can., 27 I.L.M. 281. 108 Agreement Between the Government of Canada and the Government of the United States of America, U.S.- Can., May 29, 1996, 35 I.L.M. 1195. 109 U.S. Department of Agriculture statistics, at http://www.fas.usda.gov/ffpd/wood_tradedata.htm 110 Id. 111 Because so much of the Canadian market consists of government sales of lumber, the Commerce Dpartment has struggled to define and measure “fair market value” in its determinations. In Lumber I, for example, it measured Canadian government costs against revenues it received from its stumpage sales, and found a fair market price wherever the revenues exceeded the costs. Certain Softwood Lumber Products from Canada, 48 Fed. Reg. 24, 159 (May 31, 1983) (Final Negative Countervailing Duty Determination). Later, Commerce created methodologies by which it tried to construct a theoretical fair market price in Canada and compare it to prices the producers in the U.S. paid for their domestic logs. Certain Softwood Lumber from Canada, 57 Fed. Reg. 22,470 (May 28, 1992) (Final Affirmative Determination). This was one of the issues before the binational panel in Lumber IV. See infra notes xx and accompanying text..

variety of costs, such as forest maintenance responsibilities, which are not reflected merely in stumpage fees.112

Lumber IV (2001-2007) The Softwood Lumber Agreement that resolved Lumber III expired on March 31, 2001.113 Two days later, the Coalition for Fair Lumber Imports filed new antidumping and countervailing duty petitions against Canadian lumber imports, thus commencing the complex set of disputes that made up Lumber IV.114 Because Lumber III had settled in 1996, Lumber IV was the first softwood lumber dispute to test the dispute settlement mechanisms of both the NAFTA and the WTO. The lumber dispute has always been hard fought, but this time Canada, Canadian lumber producers, and Canadian investors battled the United States on all available fronts.

The Lumber IV dispute graphically illustrates the fact of fragmentation in economic dispute resolution and the ensuing problems. Different claimants sought different relief under different legal theories before different tribunals. The proceedings were inefficient, expensive, and ultimately dissatisfying for both the United States as a defendant and for Canada and Canadian claimants. On September 12, 2006, Canada and the United States entered into another agreement to settle their dispute.115

The United States follows a bifurcated procedure in trade cases. The Department of Commerce determines whether a foreign government has provided countervailable subsidies to the industry manufacturing the goods under review, or whether goods are being sold at less than fair value (“dumped”) in the U.S. market, while the U.S. International Trade Commission (ITC) determines whether or not the domestic industry is injured by reason of the subject imports.116 Each administrative agency must make an affirmative determination before the Commerce Department will issue a countervailing duty or antidumping order.117

WTO Proceedings After the Department of Commerce issued its preliminary determination that Canada had subsidized the export of softwood lumber and that critical circumstances warranted the imposition of retroactive duties, the Government of Canada sought relief

112 [KAR – citation?] 113 Softwood Lumber Agreement,, U.S.-Can., May 29, 1996, 35 I.L.M. 1195. 114 Certain Softwood Lumber Products from Canada, 66 Fed. Reg. 21,332, at 21,332 (Dep’t of Commerce April 30, 2001) (Notice of Initiation of Countervailing Duty Investigation); Certain Softwood Lumber Products from Canada, 66 Fed. Reg. 21,328, at 21,328-29 (Dep’t of Commerce April 30, 2001) (Notice of Initiation of Antidumping Duty Investigation). 115 Softwood Lumber Agreement, Sept. 12, 2006, as amended Oct. 12, 2006, available at http://www.international.gc.ca/trade/eicb/softwood/SLA-main.en.asp#legal [hereinafter SLA 2006]. 116 U.S. INTERNATIONAL TRADE COMMISSION, ANTIDUMPING AND COUNTERVAILING DUTY HANDBOOK I-9, I-12 to I-13 (Nov. 1999) [hereinafter AD AND CVD HANDBOOK]. 117 A provisional imposition of duty will be applied to all imports for which the Commerce Department and the International Trade Commission (ITC) have made preliminary affirmative determinations. AD AND CVD HANDBOOK, supra note xx, at II-13 to II-14. The final determination determines whether the order remains in place. Id.

before a panel of the World Trade Organization’s Dispute Settlement Body.118 The WTO panel decided that the United States had erred in its determination that the stumpage program provided a benefit to the recipients, in particular because the Department of Commerce had measured the amount charged by Canada for stumpage against prevailing market conditions in the United States, rather than against the prevailing market conditions in Canada, as required by the Agreement on Subsidies and Countervailing Measures (SCM Agreement).119 The panel rejected certain other conclusions of the Department with respect to the calculation of the benefit conferred, and also determined that the critical circumstances determination did not conform to the requirements in the SCM Agreement.120 The panel recommended that the Dispute Settlement Body request the United States to bring its measures into conformity with its obligations under the SCM Agreement. The Department of Commerce’s final countervailing duty determination came out before the WTO panel had issued its decision with respect to the preliminary determination. The United States thus was not able to adjust its methodology in response to the WTO panel decision; the final decision also employed U.S. lumber prices as a benchmark.121 Canada also challenged the Department of Commerce’s final countervailing duty determination before the WTO.122 Given that the Department used the same methodology in its final determination as it had preliminarily, it is not surprising that the outcome was virtually the same. The second WTO panel, too, found that a plain language interpretation of the SCM Agreement precluded the Commerce Department from using the United States market as a benchmark for determining whether there was a benefit to the recipient.123 Thus, although it upheld the possibility that Canada’s stumpage program could constitute a countervailable subsidy, it determined that the Commerce Department’s measurement of the amount of the subsidy was inconsistent with the SCM agreement.124

118 Before Lumber IV commenced, Canada also sought declaratory relief before the WTO that the Statement of Administrative Action accompanying the Uruguay Round Agreements Act, and the Preamble to U.S. countervailing duty regulations directed the Commerce Department to treat log export restraints as countervailable subsidies in violation of the WTO Agreement on Subsidies and Countervailing Measures (SCM Agreement). The WTO panel found that log export restraints could not be treated as countervailable subsidies, but determined that neither the Statement of Administrative Action nor the Preamble was mandatory, so the Commerce Department had the discretion to implement the law in a manner consistent with the United States’ WTO obligations. United States – Measures Treating Export Restraints as Subsidies, WT/DS194/R (June 29, 2001). 119 Panel Report, United States – Preliminary Determinations with Respect to Certain Softwood Lumber Products from Canada, WT/DS236/R (Sept. 9, 2002). [JMG – pin cite] 120 Id. [JMG, pin cites] 121 Certain Softwood Lumber Products from Canada, 67 Fed. Reg. 15, 545 (Apr. 2, 2002) (Final Affirmative Countervailing Duty Determination).[JMG – pin cite] 122 Panel Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/R (Aug. 29, 2003) [JMG – pin cite]. 123 Id. [JMG – pin cite] 124 Id. [JMG – pin cite] The United States and Canada each appealed portions of the panel’s ruling. The appellate body upheld the panel’s finding that stumpage programs could constitute a countervailable benefit, but reversed the panel’s finding as to the appropriate benchmark to use when measuring the amount of a subsidy. It did not, however, endorse the Commerce Department’s approach, but determined that the investigating authority must have established that the private prices were distorted because of the

Canada also challenged the Commerce Department’s determination that the Canadian industry was dumping softwood lumber in the U.S. market. Canada won on certain issues at the panel stage – in particular, the panel said that U.S. practice with respect to “zeroing”125 violated the Antidumping Agreement.126 An appellate body report upheld that determination and reversed some aspects of the panel’s determination that the United States had not acted inconsistently with its WTO obligations.127

On December 20, 2002, Canada also challenged before the WTO the U.S. International Trade Commission’s determination that the U.S. industry was threatened with material injury by reason of imports of softwood lumber from Canada. The WTO panel found that the United States had indeed failed to comply with the requirements in both the Antidumping Agreement and the SCM Agreement as to the finding of threat of material injury because the ITC’s conclusion that there was a likelihood of substantially increased imports was not consistent with the requirements of those Agreements.128 Because the ITC’s conclusion as to injury “by reason of” the subject imports rested on that inconsistent finding, it could not stand.129 The panel directed the United States to bring its measures into conformity with the United States’ international obligations. The United States did not challenge the WTO decision with respect to the International Trade Commission. Instead, pursuant to section 129 of the Uruguay Round Agreements Act, which governs the implementation of adverse WTO panel decisions, the ITC issued a new affirmative threat determination on November 24, 2004 that it said was consistent with the WTO decision.130 Canada challenged the United States’ actions government’s role in the market before it could use another benchmark, and remanded on other issues as well. United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R (Jan. 19, 2004) [JMG – pin cite]. 125 In determining whether or not there has been dumping, Commerce determines the weighted average export price in comparison to the weighted average normal value. Commerce aggregates the different values determined for different product types to compute the overall margin of dumping. Zeroing is the process whereby Commerce attributed a value of zero to those instances in which the weighted average export price was greater than the weighted average normal value, rather than attributing the full price charged to the goods in question. Higher prices thus have less ability to offset dumped prices. 126 United States – Final Dumping Determination with respect to Certain Softwood Lumber from Canada, WT/DS264/R (Sept. 13, 2002),[JMG – pin cite]. 127 United States – Final Dumping Determination with Respect to Certain Softwood Lumber from Canada, [JMG – citation]. There were also further proceedings under Articles 21.3(c) and Articles 21.5 of the DSU. [JMG – proper citations]. 128 Panel Report, United States – Investigation of the International Trade Commission in Softwood Lumber from Canada, WT/DS277/R (March 22, 2004). Canada subsequently challenged the implementation of recommendation of the Dispute Settlement Body under Article 21.9 of the Dispute Settlement Understanding. The panel concluded that the United States continued to be in violation of certain provisions of the SCM Agreement, and of Article VI:3 of the GATT 1994. The United States challenged this determination, but the Appellate Body determined that the panel had acted within the scope of its authority in reaching its conclusions. [JMG – citation] 129 Id. [JMG – citation] 130 Softwood Lumber from Canada, 701-TA-414, 701-TA-928 (final), Section 129 Determination (Nov. 24, 2004). Canada had previously challenged section 129(c)(1) of the Uruguay Round Agreements Act as violative of the United States’s WTO obligations, but did not prevail on that argument. The panel found that a member’s obligation under the Dispute Settlement Understanding extended only to providing

before the WTO on the grounds that the new determination did not constitute compliance with the panel decision. While a panel agreed with the United States, the appellate body reversed the panel finding as to compliance.131

NAFTA Chapter 19

After the Commerce Department issued its final countervailing duty determination, Canada, the governments of several Canadian provinces, and several Canadian lumber producers’ associations challenged the determination before a NAFTA Chapter 19 panel.132 The claimants challenged the Commerce Department’s determination on the grounds that it departed from the Uruguay Round Agreements Act, the U.S. implementing legislation for the WTO Agreements. The NAFTA Chapter 19 panel affirmed many of the Commerce Department’s determinations, but remanded to the agency on the question of the benefit conferred by Canada and the adequacy of the remuneration Canada received for providing stumpage to Canadian lumber producers.133 Commerce had based its adequacy determination on U.S. market prices for lumber, and had determined that Canadian stumpage rates conferred a benefit on Canadian producers because the rates were lower than U.S. market rates.134 The panel determined that using cross-border benchmarks was inconsistent with Commerce’s regulations and with prior Commerce department practice.135 Fresh appeals to Chapter 19 panels and further remands followed with respect to the Commerce Department’s determination.136

Canadian claimants also challenged the ITC’s threat of material injury determination before a NAFTA Chapter 19 panel.137 The NAFTA Chapter 19 panel found that the evidence did not support the ITC’s determination that unused production capacity would lead to an increase in the volume of subject imports; that evidence did not show that price trends demonstrated the likelihood of lower prices or that increased

prospective relief. Thus, the fact that section 129(c)(1) did not require the United States to refund previously collected duties was not contrary to the United States’ WTO obligations. United States – Section 129(c)(1) of the Uruguay Round Agreements Act, WT/DS221/R (July 15, 2002) [JMG – pin cite]. 131 United States – Investigation of the International Trade Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada, WT/DS277/AB/RW (Apr. 13, 2006). 132 Review of DOC Final Affirmative CVD Determination, 4/2/02 and 5/22/02, USA-CDA-2002-1094-03 (Aug. 13, 2003) [First NAFTA Chapter 19 CVD Decision]. The provincial government claimants were Alberta, British Columbia, Manitoba, the Northwest Territories, Ontario, Quebec, Saskatchewan, and the Yukon Territory. The private associations were the British Columbia Lumber Trade Council, the Ontario Forest Industries Association, the Ontario Lumber Manufacturers Association, and the Quebec Lumber Manufacturers Association. 133 The NAFTA panel also remanded on excluding certain products from the class or kind of product under review. First NAFTA Chapter 19 CVD Decision , supra note xx, at 91. 134 First NAFTA Chapter 19 CVD Decision, supra note xx, at 10. Although the panel affirmed the Department of Commerce’s other determinations, it made clear it was doing so because of the deferential standard of review, rather than because the panel agreed with the Department’s determinations. Id. The panel recognized that the limited scope of judicial review of expert agency decisions prevented the panel from second-guessing the Department’s expert judgment in such matters of degree, and therefore it had to affirm the Department’s determinations. Id. at 47. 135 The regulation in question was 19 C.F.R. Part 351.511(a)(2)(ii). 136 Ultimately there were four Chapter 19 Panel decisions and 5 remands on the Commerce Department’s findings. 137 NAFTA Chapter 19 ITC Determination, USA-CDA-2002-1904-07 (Dec. 14, 2003).

volume of imports would outstrip increasing demand.138 Thus, the ITC had failed to support its conclusion that there was a likelihood of a threat of material injury. After two remands, the Chapter 19 panel again reviewed the ITC’s decision. The panel found that the ITC had again based its affirmative threat finding on an administrative record that the panel had twice before held to be insufficient as a matter of law. The panel thus precluded the agency from again considering the matter, but directed the ITC to issue within 10 days a determination that there was no threat of material injury.139 Notwithstanding this affirmative order, the ITC issued another affirmative determination. Finally, after another panel decision after the third remand, the ITC issued a negative threat of material injury determination.140The United States requested the formation of an Extraordinary Challenge Committee to review the Chapter 19 Panel’s third remand determination, but the panel was never constituted.141

NAFTA Chapter 11

Three Canadian lumber producers who had investments in the United States invoked the protections of Chapter 11 of the NAFTA in challenging the Department of Commerce’s countervailing duty and antidumping duty determinations and the U.S. International Trade Commission’s determination that the U.S. lumber industry was threatened with material injury by reason of imports of softwood lumber from Canada. The first producer to file, in 2002, was the Canfor Corporation.142 Two other companies followed in 2004: Terminal Forest Products143 and Tembec.144 Though the claims varied slightly in the details, all producers claimed that the determinations of the Commerce Department and the International Trade Commission violated the United States’ NAFTA obligations to afford national treatment (non discrimination) to Canadian investors and investments, to afford the minimum standard of treatment to investments owned by Canadian investors.145 They also claimed that the United States had expropriated their property without payment of compensation, in violation of Article 1110 of NAFTA.146 Each lumber producer further challenged the “Byrd” amendment as a violation of the national treatment, most-favored-nation treatment, and minimum standard of treatment provisions of NAFTA. The Byrd Amendment, included in the Agricultural Appropriations Act of 2001, provides that any countervailing or 138 Id. at 66. 139 NAFTA Chapter 19 ITC Determination after Second Remand, USA-CDA-2002-1904-07 (June 10, 2004). 140 Softwood Lumber from Canada, Inv. Nos. 701-TA-414, 731-TA-928 (Final) (Third Remand), USITC Pub. 3815, Views on Remand (Sept. 10, 2004) ("Negative Remand Determination"). 141 [KAR – citation] 142 Canfor Corporation v. United States of America, (UNCITRAL), (Notice of Arbitration and Statement of Claim) (May 23, 2002) [hereinafter Canfor Notice of Arbitration]. 143 Terminal Forest Prods. Inc., v. United States of America (UNCITRAL) (Notice of Arbitration) (March 30, 2004) [hereinafter Terminal Notice of Arbitration]. 144 Tembec Inc. v. United States of America (UNCITRAL) (Notice of Arbitration and Statement of Claim) (Dec. 3, 2004) [hereinafter Tembec Notice of Arbitration]. 145 Canfor Notice of Arbitration, supra note xx, at para. 19; Terminal Notice of Arbitration, supra note xx, at paras. 21-23; Tembec Notice of Arbitration, supra note xx, at paras 100-08 146 Canfor Notice of Arbitration, supra note xx, at para. 109; Terminal Notice of Arbitration, supra note xx, at para. 39; Tembec Notice of Arbitration, supra note xx, at paras. 109-110.

antidumping duties collected by the United States be paid to the domestic producers that petitioned the U.S. administrative agencies for relief.147 The Byrd Amendment gives domestic producers double incentive to petition U.S. administrative agencies to commence antidumping or countervailing duty investigations; successful petitions result not only in the imposition of duties against importers but also in the payment of those duties directly to the domestic industry.148

Canfor Corporation claimed damages of not less than $250 million149; Terminal Forest Products claimed damages of not less than $90 million150; and Tembec claimed damages of at least $200 million.151 It should perhaps be noted that initial damages claims in investor-State cases tend to be much higher than the damages actually awarded. These cases were consolidated pursuant to NAFTA Article 1126, which permits the consolidation of cases that have questions of law or fact in common.152 The consolidation tribunal dismissed the portions of the case challenging the acts of the administrative authorities on the grounds that Chapter 19 was the only NAFTA venue for such challenges. It retained jurisdiction over the allegations that the Byrd Amendment violated the United States’ international law obligations.

U.S. Court of International Trade International tribunals were not the only venues hosting the Softwood Lumber Dispute. The U.S. Court of International Trade (CIT) was involved in several disputes, three of which are detailed here. The first dispute involved a challenge to the Byrd Amendment.153 That case was brought by the Canadian Lumber Trade Alliance on behalf of Canadian lumber exporters and by the Government of Canada. The Court first determined that Canada lacked standing to pursue its claims about the Byrd amendment because it had already elected a remedy for that breach by pursuing and winning that claim before the WTO; Canada was not entitled to multiple remedies for the same breach.154 The Canadian exporters, on the other hand, did have standing, and prevailed in their argument that section 408 of the NAFTA Implementation act prevented the Byrd Amendment from applying to Canada or Mexico.155

147 United States Int’l Trade Commission, Trade Remedy Investigations, “Byrd Amendment,” http://www.usitc.gov/trade-remedy/731_ad_701_cvd/byrd.htm (last visited March 13, 2007). 148 A group of countries, including Canada, challenged the Byrd Amendment before the WTO and prevailed in their argument that the Byrd Amendment violated U.S. WTO obligations. [KAR – pin cite] For several years the United States declined to implement the WTO decision, but Congress voted to repeal the legislation in early 2006, with the repeal to be effective October 1, 2007. S. 1932, 109th Cong. § 7601 (2006). 149 Canfor Notice of Arbitration, supra note 142, at 50. 150 Terminal Notice of Arbitration, supra note 143, at 17. 151 Tembec Notice of Arbitration, supra note 144, at 45. 152 The consolidation provision of NAFTA as a coordination tool is discussed further in part xx, infra. 153 Canadian Lumber Trade Alliance v. United States, 425 F. Supp. 2d 1321 (2006). 154 Canadian Lumber Trade Alliance v. United States, 425 F. Supp. 2d 1321 (2006) [JMG – pin cite]. 155 Canadian Lumber Trade Alliance v. United States, 425 F. Supp.2d 1321 (2006) [JMG – pin cite].

The second Court of International Trade dispute involved the ITC and the affirmative threat of material injury decision it issued after the WTO panel found that the earlier ITC determination had been inconsistent with the WTO obligations of the United States, and after the ITC had in fact issued a negative determination as ordered by the NAFTA Chapter 19 panel.156 The United States Trade Representative took this determination as authority to order the Department of Commerce to revise and implement its antidumping and countervailing duty orders. The Canadian government, certain provincial governments, and members of the Canadian lumber industry challenged before the CIT the USTR’s implementation of section 129 of the Uruguay Round Agreements Act. The Court of International Trade determined that it had jurisdiction to hear the case, and determined that USTR had incorrectly interpreted and applied section 129 and that USTR’s order was therefore ultra vires and void.157 In a further proceeding, the CIT ordered the refund of duties paid by Canadian producers while the disputes were pending.158

The third Court of International Trade dispute involved a request by Canadian producers of softwood lumber that it issue a writ of mandamus ordering the United States to compel the United States Trade Representative to appoint a member to an Extraordinary Challenge Committee convened under NAFTA Chapter 19 to review the NAFTA panel’s decision with respect to countervailing duties. The CIT refused to issue the writ, stating that it was abstaining from proceeding because to proceed would unduly interfere with NAFTA proceedings.159 The CIT stated that while it had statutory jurisdiction over this case under 28 U.S.C. 1581(i)(4), principles of comity favored abstention. First, the CIT determined that binational review panels constituted “foreign courts” for the purposes of comity.160 The court said that binational panel review systems created a parallel procedure for the adjudication of trade disputes which was adequate and complete.161 Furthermore, the NAFTA Implementation Act required U.S. courts to lend assistance to binational panels at the request of the panel, rather than at the request of the parties, thus suggesting that Congress intended to leave the binational panel system free from judicial interference.162

The Softwood Lumber Agreement 2006

Canada and the United States had entered into negotiations to settle the case as early as April 2006. The Softwood Lumber Agreement (SLA 2006) they eventually signed on September 12, 2006, established a managed trade regime based on export quotas and export taxes. The SLA ended the trade cases before the ITC and the

156 Tembec, Inc. v. United States, 441 F. Supp.2d 1302 (2006). [JMG – pin cite] 157 Tembec, Inc. v. United States, 441 F. Supp.2d 1302 (2006). [JMG – pin cite] 158 Tembec, Inc. v. United States, 461 F. Supp.2d 1355 (2006) [JMG – pin cite] 159 Ontario Forest Industries Assoc. v. United States, 444 F. Supp. 2d 1309 (2006). At the time of the decision, proceedings regarding the case before an Extraordinary Challenge Committee were suspended because Canada and the United States had entered into settlement negotiations and had reached a tentative settlement agreement. 160 Id., [JMG – pin cite] 161 Id., [JMG – pin cite] 162 Ontario Forest Industries Assoc. v. United States, 444 F. Supp. 2d 1309 (2006). [JMG – pin cite]

Department of Commerce.163 It also provided that the NAFTA Chapter 19 case still pending against the Department of Commerce would be dismissed, as would the Court of International Trade Cases.164 Canfor and Tembec agreed to dismiss their NAFTA Chapter 11 cases, although Terminal Forest Products at first refused to compromise its Chapter 11 claim.165 Terminal Forest Products has now requested that the case be dismissed.166

The Lumber Cases Analyzed The Lumber cases demonstrate a fragmented dispute settlement structure, particularly with respect to the applicable law and the nature of the relief requested. First, one might have been struck by the separate tracks reviewing the Commerce Department’s orders and the ITC’s orders. This dispersal has as much to do with US law as it does with WTO and Chapter 19 procedures. Given the distinct roles played by the two US administrative agencies, it is not clear that the substantive reviews are in any way duplicative. Given that the two agencies need to work together, however, it is somewhat undesirable to have each challenge hewing to a different schedule. Second, it is clear that the Government of Canada sought relief under two regimes – the WTO and NAFTA Chapter 19. The WTO tribunal was empowered to grant prospective relief only, and it did so – it ordered that the ITC bring its decision into compliance with the United States’ WTO obligations. The NAFTA Chapter 19 tribunal, on the other hand, was applying U.S. law. The relief it could order was limited to remanding the cases to the respective agencies. These remands could, however, lead to monetary relief in the form of duty refund orders, although it could not order consequential damages. As interpreted by the United States before the intervention of the CIT, these tribunals’ directives were incompatible in that the WTO order permitted the unfair trade duties to remain in place, while the NAFTA binational panel demanded that they be removed. This incompatibility demonstrates that even fragmented proceedings may require some coordination. Third, the private parties involved – mostly Canadian lumber exporters – also sought relief in different tribunals. They were coordinate parties in the Chapter 19 cases, and were autonomous claimants in the NAFTA Chapter 11 proceedings and the CIT proceedings. The CIT and the Chapter 19 proceedings addressed different issues. The case before the NAFTA Chapter 11 tribunal, however, addressed issues similar to those before the other tribunals, albeit as violations of the international legal obligations found in NAFTA Chapter 11. Damages from the Chapter 11 tribunal would be payable directly to the investors, and could include consequential damages in addition to compensatory relief.

163 SLA 2006, supra note xx. 164 Id. at Annex 2A, para. 1. It also provided that the pending challenge to the constitutionality of the Chapter 19 binational panel process be dismissed. Id. at Annex 2A, para. 1. [KAR – citation to order dismissing this case] 165 SLA 2006 , Annex 2A, at 48-49. 166 [citation]

Fourth, the NAFTA Chapter 11 proceedings demonstrate two anti-fragmentation techniques. First, the decision to consolidate the proceedings eliminated inefficiencies in hearing the same challenges to the same government measure in parallel fora. This is precisely the purpose for which NAFTA Article 1126 was designed. Second, by declining to exercise jurisdiction over the claimants’ challenges to the acts of the administrative authority on the grounds that NAFTA Chapter 19 provided the exclusive mechanism, the Chapter 11 tribunal eliminated the possibility of duplicative relief, primarily on the grounds that concurrent or parallel proceedings were to be avoided.167 Although the tribunal recognized that the legal theories under which relief was sought differed in the different venues, it determined the claims were indeed parallel because they were based largely on the same facts.168

Fifth, the terms of the settlement agreement affecting individual investors are most instructive. Canada and the United States appeared to follow a third-party beneficiary approach: two of the private claimants, Tembec and Canfor, were party to the agreement and agreed to withdraw their cases. The third, Terminal Forest Products, continued, at least for a time, to press its claims. This difference in treatment suggests that Canada did not consider it could require Terminal Forest Products to withdraw the Chapter 11 case.

The Lauder Cases

The Lauder cases offer an example of a duplication trifecta – perception of unfairness; potential duplicate relief, and inconsistent decisions. A series of cases in various fora arose from a dispute centered around an investment in a Czech television station called TV Nova by an American investor, Ronald Lauder, via his Dutch investment company. These involved three sets of events occurring in 1992, in 1996, and in 1999.

In 1992, a Czech media enterprise (CET 21), run by a citizen of what was then

Czechoslovakia, Dr. Vladimir Zelezny, applied to the Czech Council for Radio and Television Broadcasts (Czech Media Council) for a television broadcasting license to establish a television station.169 The application was supported by the Central European Development Corporation (CEDC), a German company controlled by a U.S. citizen, Ronald S. Lauder.170 To satisfy Czech restrictions on foreign ownership of broadcast licenses, the non-assignable license was granted to CET 21.171 CET 21 and two other companies, including CEDC, then formed a third corporation, CNTS, to run TV Nova. CET 21’s contribution of capital to CNTS was to be the broadcast license itself, while the other two entities would contribute monetary capital.172 The Council endorsed this so-

167 Softwood Consolidation Tribunal Decision on Jurisdiction, para. 242. 168 Softwood Consolidation Tribunal Decision on Jurisdiction, para. 246. 169 Czech Republic v. CME Czech Republic B.V., 42 I.L.M. 919 (May 14, 2003) (Decision of the Svea Court of Appeal). [JMG – pin cite]. 170 Id. [JMG – pin cite] 171 Id. [JMG – pin cite] 172 Id. [JMG – pin cite]

called “split structure.”173 In August 1994, a Dutch company, CME Media Enterprise B.V., acquired CEDC’s shares in CNTS. CME Media Enterprise was also ultimately controlled by Mr. Lauder. Eventually CME Media Enterprise owned 99 percent of CNTS through a wholly-owned Czech subsidiary.174

In 1996, the Czech Media Council reversed its position with respect to the split

structure, and put pressure on CNTS to give up its exclusive right to use the license. As a result, the agreement between CET 21 and CNTS was amended to change the description of CET 21’s investment in CNTS from “the use of the License” to “the use of the know-how of the License,” and in other ways as well.175 The result of this was to diminish CNTS’s position vis-à-vis CET 21, the nominal licensee.176 By this time, TV Nova was the Czech Republic’s most successful private television station.177

The relationship between CME, which owned nearly all of CNTS, and Dr. Zelezny,

who controlled CET 21, deteriorated after the 1996 events. Dr. Zelezny claimed to have the right to receive more of TV Nova’s revenues. In March 1999, the Czech Media Council, apparently at the behest of Dr. Zelezny, wrote a letter suggesting again that the ownership structure of CNTS violated Czech law and that, inter alia, CET 21 was entitled to all advertising revenues from TV Nova.178 After Dr. Zelezny took other steps to alter the exclusive relationship that had hitherto existed between CET 21 and CNTS, CME removed Dr. Zelezny from his position as general director of CNTS. Dr. Zelezny then caused CET 21 to end its ties to CNTS, and began broadcasting TV Nova through different companies.179

The convoluted corporate ownership structure gave rise to several claims by CNTS

and its related ventures against several defendants, including the Czech Republic. The foreign investors, Ronald Lauder and the Dutch Company CME Media Enterprise, each filed separate investment treaty claims, while the Czech companies sought relief in international commercial arbitration and local courts.

Investor-State Arbitration under the US-Czech Republic BIT Mr. Lauder filed his case under the U.S.-Czech Republic BIT in August, 1999; the

parties designated London as the place of arbitration.180 Mr. Lauder claimed a violation of the following treaty provisions with respect to his investment: the obligation to provide fair and equitable treatment; the obligation to provide full protection and

173 Id. [JMG – pin cite] For a detailed explanation of these arrangements, see CME Czech Republic B.V. (The Netherlands) v. The Czech Republic, UNCITRAL Rules, ¶¶ 75-102 (13 September 2001) (Partial Award) [hereinafter CME Partial Award]. 174 Czech Republic, 42 I.L.M., at [JMG – pin cite] 175 Id. [JMG – pin cite] 176 Id. [JMG – pin cite] For a more detailed description of the negotiations in 1996, see CME Partial Award, supra note xx, ¶¶ 107-118. 177 CME Partial Award, supra note xx, ¶ 104. 178 Id. ¶¶ 129. 179 For a more detailed explanation of these occurrences, see CME Partial Award, supra note xx, ¶¶ 119-136. 180 Lauder Award, supra note xx, [JMG – pin cite]

security; the obligation to treat investments in conformity with the minimum standard of treatment of international law; the obligation not to impair investments by arbitrary or discriminatory measures; and the obligation not to expropriate property.181 The U.S.-Czech Republic BIT permits an investor to bring a challenge based only on violations of treaty provisions and certain customary international law standards; it does not permit an investor to bring a challenge based directly on violations of Czech law (except insofar as those violations would also constitute a breach of international law). The Lauder tribunal found that the 1992 acts requiring that a third company be formed to avoid the holding of a broadcast license by a non-Czech entity violated the investment treaty because it was arbitrary and discriminatory treatment, but that no damages were caused by it.182 The tribunal in fact concluded that no damages were due to Mr. Lauder.183

Investor-State Arbitration under the Netherlands-Czech Republic BIT The CME case was initiated under the BIT between the Netherlands and the Czech

Republic on February 22, 2000, with Stockholm as the place of arbitration.184 CME alleged that the three sets of events violated several provisions of the treaty. In particular, CME claimed that its investment, CNTS, was unlawfully expropriated in violation of Article 5; that the Czech Republic had failed to accord CNTS “fair and equitable” treatment under Article 3(1); that the Czech Republic had failed to accord it nondiscriminatory treatment under Article 3(1); that the Czech Republic had failed to accord to CNTS “full protection and security under Article 3(2); and that the Czech Republic had not accorded to CNTS the minimum standards required under international law, as required by Article 3(5) of the BIT.185

The CME tribunal determined that the 1992 events had note resulted in a violation

of the applicable treaty, but that the 1997 and 1999 events had.186 The tribunal issued a final award placing damages at $270 million.187 The Czech Republic asked the Svea Court of Appeal in Stockholm to invalidate or set aside the award, as Sweden was the place of arbitration. The Court upheld the award in all respects.188

Proceedings Between the Two Czech Companies

There were also proceedings in municipal court in the Czech Republic through which CNTS tried to recoup its investment by suing CET 21 for having terminated the license-

181 Id. [JMG – pin cite] 182 Id., paras. 231-32. 183 Id., [JMG -- pin cite]. 184 CME Partial Award, supra note xx, at [JMG – pin cite] 185 Id. paras. 149-62. 186 Id. One of the arbitrators, criticizing the reasoning processes of the two arbitrators in the majority and complaining of their treatment of him during the deliberations, dissented from that decision. CME Czech Republic B.V. (Neth.) v. The Czech Republic, UNCITRAL (Sept. 22, 2001) (Dissenting Opinion of the Arbitrator JUDr Jaroslav Hándl against the Partial Arbitration Award). He subsequently resigned, and was replaced by Professor Ian Brownlie. CME Final Award, supra note xx, at [JMG – pin cite] 187 CME Czech Republic B.V. (Neth.) v. The Czech Republic, UNCITRAL (March 14, 2003) (Final Award). 188 Czech Republic v. CME Czech Republic B.V., 42 I.L.M. 919, (May 15, 2003) (Decision of the Svea Court of Appeal).

use agreement without cause. The Supreme Court of the Czech Republic held on November 14, 2000, that the termination had indeed been without cause, and remanded the case to the City Court of Prague.189 In summer 2003, CNTS (and CME) had also initiated arbitration in Vienna against CET 21 with respect to lost profits of $275 million resulting from the alleged improper termination of the license; had the case been successful, CME claims it would have returned $205 million to the Czech Republic.190 The case has now settled.191

Arbitration Between Dr. Zelezny and CME192

CME initiated arbitration under the International Chamber of Commerce (ICC) Arbitration in Amsterdam against Dr. Zelezny pursuant to a clause in a “Share Purchase Agreement” through which it had increased its shares in CNTS by purchasing Dr. Zelezny’s interests in the company. CME was to make a series of payments to Dr. Zelezny from 1997 through 2000. The Share Purchase Agreement contained a covenant not to compete on the part of Dr. Zelezny, and also an undertaking by him not to solicit or entice away any employee of CME or CNTS. Both of those restrictions were to last until the final payment was to be made, in February 2000. CME alleged that Dr. Zelezny had violated those agreements. Though the ICC tribunal did not find for CME in all respects, it did find that Dr. Zelezny had violated parts of the Share Purchase Agreement and ordered him to restore to CME $23,350,000, plus applicable interest.193

The Lauder Cases Analyzed

The Lauder cases more evidently demonstrate duplication than fragmentation, although there are elements of each presented by the myriad disputes at issue. Much attention has been lavished on the discrepancy in outcomes between the CME and Lauder decisions, their effect on the legitimacy of investment treaty arbitration, and the 189 Czech TV License Dispute Produces 2 Awards with Opposite Findings, 16 MEALEY’S INT’L ARB. REP., #11 (Nov. 2001). 190 Czech News Agency, PPF’s Purchase of CNTS Likely to End CME vs. Nova Dispute (8 October 2003), available in LEXIS/Nexis, News Library, All. CET 21 representatives claimed the Vienna arbitration was brought in an attempt to influence the Czech Court decision. See CET 21’s Arbitrator in Dispute with CME is Martin Hunter (7 September 2003), available at LEXIS/Nexis, News Library, All. 191 Another media company, the PPF Group, which owns part of CET 21, purchased CME’s shares in CNTS. This change in ownership resulted in the settlement of the remaining disputes. PPF Controls 66 Percent of Private TV Nova, SMEJC Has the Rest, Czech News Agency, (19 December 2003), available at LEXIS/Nexis, News Library, All. 192 CME Media Enterprises B.V. v. Vladimir Zelezny, ICC Case 10435/AER/ACS (Final Award) (9 Feb. 2001) [hereinafter CME ICC Award]. The facts in the following paragraph are taken from the CME ICC Award. 193 Id. at 76, para. 1. CME ran into difficulties when it attempted to enforce the award in the United States. CME applied to a federal district court in New York in an attempt to attach Dr. Zelezny’s account at Citbank in New York, and also sought an order for discovery to locate other assets in the jurisdiction. However, Dr. Zelezny’s account contained only $69.65 (which amount was reduced to $0.05 when Citibank deducted certain fees). With respect to the discovery issue, the court determined that Dr. Zelezny’s nearly empty bank account did not establish minimum contacts constitutionally necessary for the court to exercise personal jurisdiction. CME Media Enterprises v. Zelezny, No. 01 Civ. 1733 (DC), 2001 WL 1035138 (S.D.N.Y. 10 Sept. 2001). However, it appears that Dr. Zelezny paid the award after the Amsterdam District Court denied Dr. Zelezny’s request to set it aside. Thomas Wälde, Introductory Note to Svea Court of Appeals: Czech Republic v. CME Czech Republic B.V., 42 I.L.M. 915, 917 (2003).

possibility that those tribunals could have given what appeared to be duplicative relief.194 Less attention has been given to the fragmentation aspects of the cases. Both the CME tribunal and the Svea Court of Appeal considered the arguments that the Lauder decision, which preceded the CME tribunal’s decision, should have been treated as res judicata by the subsequent tribunal. Both rejected the argument on traditional international law grounds. The CME tribunal decided that res judicata did not apply because (1) the parties were different; (2) the treaties on which the claims were based were different, with some different provisions; (3) the facts on which the claims were based might well have been different; (4) even those treaty claims that seemed similar on their face might be susceptible to different interpretations, given differences in contexts, object and purpose, and subsequent practice of the parties.195 The CME tribunal also rejected the invitation to determine that CME and Mr. Lauder were a “single economic entity,” noting that such a determination could be made only in exceptional cases, ordinarily having to do with competition law, and was not generally accepted in international arbitration.196 The Svea Court of Appeal concurred that there was no identity between the parties, and thus did not consider whether the claims raised in the parallel proceedings were actually duplicative.197

The relationship between the investor-State cases and the other tribunal proceedings has received less attention.198 The dispute between the Czech companies ended with apparently no damages being paid. Yet CME suggested that had it won in those proceedings, it would have restored the money it got from the Czech Republic in the investor-state proceeding, thus apparently conceding the potential of duplicative recovery. The claims in those cases were, however, based on clearly different legal theories against clearly different legal entities. Thus one had the potential for duplicative recovery with limited overlap in the parties and limited overlap in applicable law. Consolidating any or all of the proceedings might have been possible, albeit difficult. The apparent fact that Dr. Zelezny, and the company he controlled, acted in concert with government officials to deprive CME of its ownership of TV Nova was of interest in both the investor-state cases, and consolidating the cases against all parties might have been efficient and even instructive. CME and Lauder offered to consolidate proceedings in the investor-State cases, but the Czech Republic refused.199 Unlike NAFTA Chapter 11, the investment treaties at issue do not have consolidation clauses,

194 [citations] 195 CME Final Award, supra note xx, at ¶¶ 432-33. 196 Id. at ¶ 436. 197 Svea Court Decision, 42 I.L.M. at 967. 198 The potentially preclusive effect of these cases was raised before the Svea Court of Appeal, but the court did not directly address the effect of those proceedings. Svea Court Decision, 42 I.L.M. at 967. Given its decision about identity of parties with respect to CME and Mr. Lauder, it presumably would have found that the requirement of identity of parties was not met in those cases either. 199 “‘The Czech Republic does not consider it appropriate that claims brought by different claimants under separate Treaties (which give rise to obligations of the Czech Republic to two different sovereign States . . . under international law) should be effectively consolidated and the Czech Republic asserts the right that each action be determined independently and promptly.’” CME Final Award, supra note xx, ¶ 428.

nor do they have provisions for joining third party defendants. Parties have the autonomy to alter arbitration agreements, however, and potentially could have joined all of the cases. Doing so might have presented procedural difficulties, as none of the applicable rules contemplate such a procedure.

Coordination: Barriers and Opportunities The starting point for managing inter-jurisdictional disputes is the law of the forum.

An international tribunal will look first to the language of the treaty or agreement that constituted it, while a municipal court will look to its conflict of laws principles. Conflict of laws has not yet played a greater role in the globalization debate,200 and relatively few conflicts tools have been adapted for use by international tribunals. This failure has partly to do with inter-systemic fragmentation; there may be less perceived need for coordination to the extent that tribunals appear to be apply discrete bodies of law. There is also no body with authority over all tribunals to police the application of any such principles and to harmonize divergent interpretations.201

The focus of the following section is largely on investor-State tribunals because so

many complex issues of inter-jurisdictional conflict have arisen in conjunction with cases brought under investment treaties, and because the hybrid nature of those disputes illustrates the conceptual difficulties in applying public international law to disputes involving private individuals. 202 Those tribunals also have flexibility in sorting out complex and overlapping disputes, making them a good source for examining existing approaches to problems of fragmentation and duplication, and potential laboratories in which other solutions will be attempted and assessed.

Treaty Directives Many of the treaties constituting arbitral tribunals give some direction to those

tribunals with respect to managing potential duplicative proceedings, or to status of various tribunals vis-à-vis one another. These tools have not necessarily been employed in a manner calculated to minimize duplicative proceedings, largely due to tribunals’ adherence to traditional public international law norms distinguishing causes of action brought in different legal regimes. 200 Ralf Michaels and Paul Berman are two scholars who have recognized that conflict-of-laws approaches could provide useful approaches to the challenges posed by global legal pluralism. See, e.g., Ralf Michaels, The Re-Statement of Non-State Law: The State, Choice of Law, and the Challenge from Global Legal Pluralism, WAYNE LAW REVIEW at 3 (noting the potential role that conflict of laws could play in debates about global legal pluralism); Paul Schiff Berman, Towards a Cosmopolitan Vision of Conflict of Laws: Redefining Governmental Interests in a Global Era, 153 U. PA. L. REV. 1819, 1821 (2005). 201 The same problems exist in federal states – the United States, or example, has no federal law of conflicts. The members of the European Union and the European Free Trade Area, by means of the Brussels and Lugano Conventions, have to a large degree harmonized the exercise of jurisdiction and the recognition and enforcement of judgments. European Communities: Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, [citation] These arrangements are overseen by the European Court of Justice. 202 Yuval Shany suggests that the difficulty in finding a coherent approach reflects “an ideological divide between international judges and arbitrators over how best to address problems created by the multiplicity of legal sources and procedures implicated in contemporary investment disputes.” Shany, Mapping Conflicts, supra note xx, at 844.

“Exclusivity” Clauses

Some treaties have what might be termed exclusivity clauses – a directive that tribunals convened under that treaty have the exclusive right to hear cases brought under that treaty, or that a tribunal once seised of a case has the exclusive right to hear that case. An example of the former include the European Convention, which provides “Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein.”203 An example of the latter is the ICSID Convention, which provides “Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy.”204

The effectiveness of these provisions is untested. Their enforcement will often hinge on the willingness of other tribunals to honor those provisions. For example, the language of the WTO Dispute Settlement Understanding says that members shall not take unilateral action in response to alleged treaty breaches, but shall submit all disputes to the Dispute Settlement Body.205 Nonetheless, several regional free trade agreements either provide that trade disputes shall be hear exclusively by regional tribunals, or give members states the election of opting for either WTO dispute settlement or regional dispute settlement, and generally providing that once that election is made it is exclusive.206 The WTO Dispute Settlement Body has suggested in obiter dicta that it would recognize such a clause, but has not been called upon to do so directly.207

Effectiveness of exclusivity clauses may also depend on the extent of the authority exercised by the tribunal seeking to enforce its exclusive jurisdiction. An interesting set of questions arose in the MOX Plant case, a complex dispute environmental dispute between Ireland and the United Kingdom concerning Ireland’s objection to the approval and operation by the United Kingdom of a mixed oxide (MOX) fuel-processing plant in England. Ireland brought legal claims under a regional environmental treaty (the convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR)208; the Law of the Sea Convention209, and English law. Those claims were all filed in different fora.210 The European Commission challenged before the European Court of Justice Ireland’s institution of proceedings before an ITLOS tribunal on the grounds that the subject matter of the dispute lay within the competence of the European 203 Treaty Establishing the European Community, Nov. 10, 1997, art. 292, O.J. (C 340) 3 (1997). The EC Treaty established a Court of First Instance and the European Court of Justice. Id., arts. 220, 225. 204 ICSID Convention, supra note xx, art. 26. 205 DSU, supra note xx, art. 23. 206 For a catalogue of such provisions, see 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 TRADE 231, 281-85 (2004). 207 Id. at 287-88 (citing WTO decision in Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil, WT/DS241/R, para. 7.38 (Apr. 22, 2003)). 208 Convention for the Protection of the Marine Environment of the North-East Atlantic, Sept. 22, 1992, 32I.L.M. 1069 (1992). 209 UNCLOS, supra note xx. 210 A cogent and insightful discussion of MOX Plant cases may be found in Shany, supra note xx (AJIL article), at 846-47. His article was published before the European Court of Justice issued its final determination.

Community, and that the European Court of Justice thus had exclusive authority to hear the dispute. The European Court of Justice agreed that Ireland had breached its obligations under the EC Treaty.211 After finding that the ITLOS dispute related to undertakings on a subject “in wchih the respective areas of competence of the Community and the Member States are liable to be closely interrelated,” the tribunal stated: “The act of submitting a dispute of this nature to a judicial forum such as the Arbitral Tribunal involves the risk that a judicial forum other than the Court will rule on the scope of obligations imposed on the Member States pursuant to Community law.”212 The European Court did not address the effect its decision would have on the other pending cases.213 The ITLOS tribunal suspended its proceedings pending the ECJ decision, and the matter remains pending.214

It should be noted that the European Court of Justice has no authority over the ITLOS tribunal. The ITLOS tribunal did suspend its proceedings “bearing in mind considerations of mutual respect and comity which should prevail between judicial institutions both of which may be called upon to determine rights and obligations as between two states.”215 Municipal courts in different jurisdictions, which also lack any hierarchical control over each other, will attempt to control their exercise of jurisdiction by issuing an “anti-suit injunction” – an order directing one or both parties before them not to persist in the other court proceedings.216 Municipal courts have also been known to enjoin parties from proceedings with an arbitration,217 and arbitrators to enjoin parties from proceeding with competing arbitrations or with competing court proceedings, although they should do so cautiously.218 One of the drawbacks of the anti-suit injunction is the quite likely possibility that the competing court or tribunal will respond with an anti anti-suit injunction. Treaty exclusivity clauses are useful mechanisms; indeed, the most desirable course for states to follow is to spell out precisely in their agreements what the scope of each is, and how they interact with each other.219 Yet such specificity is elusive. Some rules, like lex specialis and later-in-time rules, can help tribunals to reconcile inconsistent grants of authority, but their implementation may not be uniform.

211 Case C-459/03, Commission of the European Communities v. Ireland, paras. 168-183 (May 30, 2006). 212 Id. paras. 176-77. 213 Id. 214 MOX Plant Arbitral Tribunal Issues Order No. 5 Suspending Periodic Reports by the Parties, Feb. 21, 2007, at http://www.pca-cpa.org/PDF/MOX%20Press%20Release%20Order%20No.%205.pdf. 215The Mox Plant Case (Ireland v. U.K.), para. 28 (June 24, 2003) (Order No. 3), at http://www.pca-cpa.org/PDF/MOX%20Order%20no3.pdf. The tribunal added “Moreover, a procedure that might result in two conflicting decisions on the same issue would not be helpful to the resolution of the dispute between the Parties.” Id. 216 Emmanuel Gaillard, Introduction, in ANTI-SUIT INJUNCTIONS IN INTERNATIONAL ARBITRATION 1 (Emmanuel Gaillard ed., 2005). 217 Stephen M. Schwebel, Antisuit Injunctions in International Arbitration: An Overview, in ANTI-SUIT INJUNCTIONS IN INTERNATIONAL ARBITRATION 5, 5-8 (Emmanuel Gaillard ed., 2005). 218 Lauren Lévy, Anti-Suit Injunctions Issued by Arbitrators, in ANTI-SUIT INJUNCTIONS IN INTERNATIONAL ARBITRATION 5, 5-8 (Emmanuel Gaillard ed., 2005). 219 See Pauwelyn, SADC Article, supra note xx, at 304.

Election of Remedies Clauses

Investment treaties have what might be viewed as specialized exclusivity clauses. Many treaties have what are called “fork-in-the-road” clauses, which require that an investor must choose either to submit a claim to arbitration or to dispute settlement in local courts. Once that choice has been made, the investor may not change his mind. In practice, however, this election has not proved to be preclusive in very many cases because of the narrow interpretation given the scope of the election. Most tribunals to date have been faced with instances in which claimants alleged violations of domestic law in municipal courts, and have later submitted to arbitration claims arising from the same dispute, but based on international law. They have generally held that because the law governing the claim differed, the fork-in-the-road clause was not triggered, and the investment treaty tribunal can exercise jurisdiction.220

NAFTA Chapter 11 takes a slightly different approach that conceivably has more preclusive effect. Article 1121 requires that an investor seeking to initiate arbitration “waive the right to initiate or continue proceedings with respect to the measure at issue.”221

“Umbrella” Clauses One of the most vexing issues in investment treaty arbitration over the last few years

has been the function and purpose of an “observance of undertakings” clause in an investment treaty.222 By virtue of such a clause, a state promises to “observe any obligation it has assumed with regard to specific investments in its territory by investors of the other Contracting Party.”223 The interpretation of the clause that has gained the most traction is that it serves to bring any commitment made by the state to a foreign investor under the protective “umbrella” of the treaty. Any contractual breach thus turns into a treaty violation, and the investor can demand arbitration under the investment treaty in the event of the breach.224 One commentator has suggested a more nuanced 220 See, e.g., Compañía de Aguas del Aconquija, S.A. & Vivendi Universal (Fr.) v. Argentine Republic, ICSID (W. Bank) (July 3, 2002) (Decision on Annulment), 6 ICSID Rep. 340 (2002) 221 NAFTA, supra note xx, art. 1121. 222 Several pieces have been written on umbrella clauses within the last few years. See, Yuval Shany, Contract Claims vs. Treaty Claims: Mapping Conflicts between ICSID Decisions on Multisourced Investment Claims, 99 AM. J. INT’L L. 835 (2006); Thomas Wälde, The “Umbrella” Clause in Investment Arbitration: A Comment on Original Intentions and Recent Cases, 6 J. WORLD INV. & TRADE 183 (2005); Christoph Schreuer, Travelling the BIT Route: Of Waiting Periods, Umbrella Clauses and Forks in the Road, 5 J. WORLD INV. & TRADE 231 (2004); Anthony C. Sinclair, The Origins of the Umbrella Clause in the International Law of Investment Protection, 20 ARB. INT’L 411 (2004); David Foster, Umbrella Clauses – A Retreat from the Philippines?, 9 INT’L ARB. L. REV. 100 (2006); Katia Yannaca-Small, Interpretation of the Umbrella Clause in Investment Agreements, OECD: WORKING PAPERS ON INTERNATIONAL INVESTMENT (No. 2006/3). 223 SGS Société Générale de Surveillance SA v. Republic of the Philippines (hereinafter SGS v. Philippines), ICSID Case No. ARB/02/6, Decision of the Tribunal on Objections to Jurisdiction, ¶ 115 (January 29, 2004). 224 See, e.g, SGS v. Philippines ¶ 127 (holding the umbrella clause operated to raise a breach of the supply agreement into a treaty violation); Fedax NV v. Republic of Venezuela, ICSID Case No. ARB/96/3, Award (March 9, 1998)

interpretation of the umbrella clause, such that its protections would come into play if the host government used its sovereign authority to abrogate or interfere with its contractual commitments, but would not apply to an ordinary breach of contract dispute.225 The other primary interpretation of these types of clauses is that their purpose is merely to reiterate a state’s general commitment to act in accordance with its obligations, but not to stand separately as an affirmative treaty obligation.226 If it did so, then the jurisdictional reach of the treaty would be capable of nearly “indefinite expansion.”227

Adopting the former view means that an umbrella clause may effectively oust the jurisdiction of the municipal court that would otherwise be the presumptive forum to hear the municipal-law based breach of contract claim. As such, an umbrella clause could be seen as a weapon against fragmentation – all claims arising out of a single transaction, whether based on violations of international law or on breach of contract, could be heard in the same forum if the investor chose to bring such a claim. Though the contract claim would be a breach of the treaty for purposes of invoking the arbitral tribunal’s jurisdiction, the tribunal would usually be called upon to apply municipal law to the contract claim,228 and international law to the other treaty-based claims (e.g., failure to accord national treatment, failure to accord the minimum standard of treatment). In SGS v. Philippines, the Tribunal quoted Article 42(1) of the Convention, which provides that: “The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law

(applying the “plain meaning” of the umbrella clause provision to find Venezuela was obligated to honor the terms of its agreement under the BIT); CMS v. Republic of Argentina, ICSID Case No. ARB/01/8, Award, (May 12, 2005) (recognizing that umbrella clauses may protect commercial aspects of a contract in cases where there is significant interference by the sovereign with the rights of the investor). 225 Thomas Wälde, The “Umbrella” Clause in Investment Arbitration: A Comment on Original Intentions and Recent Cases, 6 J. WORLD INV. & TRADE 183, 235 (2005). This interpretation is appealing in that it is consistent with the rationale behind offering foreign investors protection from host governments – governments by virtue of their inherent powers have the ability to change the political or business landscape. It also potentially alleviates the indefinite expansion concern raised by those tribunals that have refused to give umbrella clauses substantive meaning; see also, CMS v. Republic of Argentina, ICSID case No. ARB/01/8, Award, (May 12, 2005) (recognizing that umbrella clauses may protect commercial aspects of a contract in cases where there is significant interference by the sovereign with the rights of the investor). 226 See, e.g., SGS Société Générale de Surveillance SA v. Islamic Republic of Pakistan (hereinafter SGS v. Pakistan), ICSID Case No. ARB/01/13, Decision of the Tribunal on Objections to Jurisdiction (August 6, 2003) (rejecting the notion that an umbrella clause operates to raise a breach of contract into a treaty violation); El Paso Energy International Co. Ltd. v. The Argentine Republic (hereinafter El Paso v. Argentina), ICSID Case No. ARB/03/15, Decision on Jurisdiction, para. 73 (April 27, 2006) (interpreting umbrella clauses to elevate any breach of contract to a treaty violation would render the substantive provisions of the treaty useless); Joy Mining Machinery Limited v. The Arabic Republic of Egypt, ICSID Case No. ARB/03/11, Award on Jurisdiction, (August 6, 2004) (explaining that commercial and contractual disputes should be settled in the manner described in the agreement between the parties). 227 SGS v. Pakistan ¶¶ 165-66; Christoph Schreuer, Travelling the BIT Route: Of Waiting Periods, Umbrella Clauses and Forks in the Road, 5 J. WORLD INV. & TRADE 231, 253-255 (2004); Wälde, supra note XX at 215-216. 228 So long as the failure to observe a commitment stems from a contract, determining whether a state had abided by its contractual obligations would mean construing the contract under its governing municipal law.

of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable.”229 In Fedax v. Venezuela, the Tribunal stated that Venezuelan law would apply, in particular, the Venezuelan Commercial Code.230 Despite this dépeçage, there would likely be efficiencies in adjudication as the dispute itself would arise out of a “common nucleus of operative fact.”231 Efficiency considerations thus bolster the rationale for conferring substantive meaning on umbrella clauses.

Yet another layer of complication may arise, however, when the contract itself contains a choice of forum clause that directs the parties to local courts. Can or should the investment treaty tribunal hear an “umbrella clause” dispute when the parties have selected in the contract an exclusive forum? In other words, can the parties pre-empt the jurisdiction of the investment treaty tribunal, at least insofar as the breach of contract claim is concerned, by choosing another forum in their contract?232 The SGS Philippines tribunal had to address this very question, as the agreement between SGS and the Philippines provided “ All actions concerning disputes in connection with the obligations of either party to the Agreement shall be filed at the Regional Trial Courts of Makati or Manila.”233

If one adopts the delegated espousal view, such a waiver should not be permitted at

all. If the usual remedy for a disgruntled investor would be to seek espousal of his claim from his government, and if the government via treaty effectively confers that right on him, then the investor may be viewed as merely exercising the rights that really belong to his government. This is the rationale adopted by the SGS/Philippines tribunal. Yet, the tribunal also determined that a “party should [not] be allowed to rely on a contract as the basis of its claim when the contract itself referred that claim exclusively to another forum.”234 It thus stayed its proceedings pending a decision by the Regional Trial Court in Manila or Makati on the breach of contract claim.235

This result apparently distinguishes between the authority of the claimant to

waive a contract claim and its authority to waive a BIT claim, yet because the contract claim was in fact also a BIT claim that distinction was not maintained. The tribunal’s decision thus is not logically consistent. 229 SGS v. Philippines, supra note xx, at para. 28. 230 Fedax NV v. Republic of Venezuela, ICSID Case No. ARB/96/3, para. 27 Award (March 9, 1998). 231 United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966). 232 A related question is whether the investor could waive the right to assert any treaty claims whatsoever. 233 SGS v. Philippines, supra note XX, para. 22. The clause also provided for the Agreement to be governed by and construed in accordance with the law of the Philippines. Id. 234 SGS v. Philippines, supra note XX, para. 154. 235 The Tribunal was not specific in the division of labor, nor did it clearly state what would happen after the Philippines court reached its decision. The Tribunal stated, “The stay of proceedings may be lifted for sufficient cause on application by either party. The Tribunal calls on both parties to expedite proceedings before the Philippine courts and, in general, to take all necessary measures to ensure a prompt and effective resolution of the dispute. The parties are directed to report briefly to the Tribunal, either jointly or separately, at sixth-monthly intervals commencing 1 July 2004, on the steps being taken for the resolution of the present claim… [The Tribunal held] that the proceedings will resume on the request of either party as soon as the condition for admissibility set out above has been satisfied.” Id. paras. 175-177.

[wrap up + recommendations]

Preclusion Doctrines Res judicata and lis alibi pendens are generally accepted principles of international law.236 However, while the principle of res judicata as between decisions of international tribunals is clearly recognized in international law, the principle has not been recognized as between international tribunals and national courts. Thus, a decision on the merits of a case by a local court need be given no authority by an international tribunal reviewing largely the same events.237 Even if this obstacle were overcome, the doctrine would still be fairly limited, at least as it has traditionally been applied. 238

Application of res judicata requires both identity of the parties and of the question at issue in the arbitration.239 Both of those issues may warrant reexamination in the context of an increasing likelihood of contradictory decisions and duplicative recoveries. Without adaptation, their usefulness in the transnational economic law arena is limited. “One consequence of this link between an international arbitration and the seat of that arbitration is that international commercial arbitrations taking place in different countries are not connected inter se. These awards do not pertain to a definite international legal order nor to the same domestic legal system within which the concepts of lis pendens and res iudicata have the role of avoiding conflicting proceedings and decisions. There is no coordination nor hierarchy between the awards. This may be relevant in respect of the disputed applicability of these concepts in the transnational context.”240

A strict construction of “identity of the parties” does little to stem duplicative proceedings in investor-State arbitrations. The web of over 2,000 investment treaties, which often confer very broad standing on investors, whether they control an investment directly or indirectly, permits multiple parties to have standing in different cases involving the same issues.241 In the CME and Lauder cases, Lauder and CME are

236 Pious Fund of the Californias (Mex. v. U.S.), Hague Ct. Rep. (Scott) 1, 5 (Perm. Ct. Arb. 1902); Dodge, supra note xx, at 365; Hanotiau, supra note 154, at 356-60; INTERNATIONAL LAW ASSOCIATION REPORT, supra note 154. 237 See, Dodge, supra note xx, at 367-370 (listing five reasons for this practice). 238 Both of these doctrines are ripe for further scholarly investigation as to their application in the context of international arbitration. The necessarily abbreviated discussion that follows draws from some of the best scholarship to date. See, e.g., Reinisch, supra note xx; Reichert, supra note xx; Christian Oetiker, The Principle of Lis Pendens in International Arbitration: The Swiss Decision in Fomento v. Colon, 18 ARB. INT’L 137 (2002); William S. Dodge, National Courts and International Arbitration: Exhaustion of Remedies and Res Judicata Under Chapter Eleven of NAFTA , 23 HASTINGS J. INT’L & COMP. L. 357 (2000); Hanotiau, supra note xx; Stanislaw Soltysinski & Marcin Olechowski, 2003:2 Stockholm Arb. Rep. 215, 229-37; IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 52 (5th ed. 1998); INTERNATIONAL LAW ASSOCIATION, INTERIM REPORT: “RES JUDICATA” AND ARBITRATION (2004), at http://www.ila-hq.org/html/layout_committee.htm. 239 See, e.g., Pious Fund Case, supra note 155, at 5; Polish Postal Service in Danzig Case, 1925 P.C.I.J. (ser. B). No. 11, at 30. 240 Sacerdoti, supra note xx, at 29. 241 NAFTA Chapter Eleven, for example, permits an investor to bring a claim on behalf of an investment that it “owns or controls, directly or indirectly.” NAFTA art. 1117. That same investor may bring a claim

distinct entities in the absence of “piercing the corporate veil.” 242 Even more difficult, however, is the fact that each was protected under the terms of a different investment treaty, and could be treated differently on that ground as well. Thus, a more searching review may be warranted to prevent “double-dipping” or gaming the system by means of indirect claims and complex corporate structures, or complex investment treaty manipulation.

Professor Reisman has recommended that ICSID annulment bodies take a “broad and inclusive” view of res judicata;243 it may be that any all investor-state tribunals should do the same, and consider also doctrines such as collateral estoppel (issue preclusion) which might permit a tribunal to consider the findings of other tribunals with respect to factual issues, though this approach has not been favored in the past.244

Identity of the subject matter of the dispute is also usually required for res judicata to bar subsequent litigation. If one were to assume that Lauder and CME were privies such that one had identity of parties, and that the subject matter of the dispute was identical, one would still need to establish the identity of the claims. In Lauder, Mr. Lauder alleged violations of various treaty provisions and of customary international law. In CME, the claimed violations were almost identical to those alleged in Lauder, albeit based on a different treaty. However, the rules of decision in the Czech Republic-Netherlands BIT involve a complex and apparently undifferentiated hierarchy of laws, including municipal law, that is not included in the U.S.-Czech Republic BIT. Thus, the Stockholm Tribunal’s analysis differed in some significant ways from that of the London Tribunal. Yet it would be somewhat ridiculous to say the claims were not identical – or at least that they were not made to redress the same injury – even though the governing law differed.245

The doctrine of lis alibi pendens (or litispendence) also has potential relevance. When, if ever, should one arbitral tribunal stay its proceedings pending the resolution of a parallel case? Both civil law and common law jurisdictions recognize the principle in the

on his own behalf. NAFTA art. 1116. See also, Mary L. Moreland, "Foreign Control" and "Agreement" under ICSID Article 25(2)(B): Standards for Claims Brought by Locally Organized Subsidiaries Against Host States, 9 CURRENTS: INTERNATIONAL TRADE L. J. 18 (2000). 242 Noah Rubins, Observations, 2003:2 STOCKHOLM ARB. REP. 195, 210 (“[I]n a case like CME, where the ultimate party in interest is the same, and where there is real potential for conflicting decisions on central issues, one might suppose that the equitable nature of the res judicata doctrine would allow for some flexibility in the identity requirement.”). For an interesting analysis of the relationship between Zelezny and CME, see Mihir A. Desai & Alberto Moel, Czech Mate: Expropriation and Investor Protection in a Converging World (ECGI – Finance Working Paper NO. 62/2004), at http://ssrn.com/abstract=585843. 243 W. MICHAEL REISMAN, SYSTEMS OF CONTROL IN INTERNATIONAL ADJUDICATION AND ARBITRATION: BREAKDOWN AND REPAIR 97-102 (1992). 244 See, Bernard Hanoitau, Problems Raised by Complex Arbitrations Involving Multiple Contracts – Parties – Issues, 18 J. INT’L ARB. 251, 358-60 (2001) (noting that in the Pyramid case (SPP v. Egypt), the ICSID Tribunal suggested that such deference would be an abdication of the Tribunal’s responsibility to make its own findings of fact). 245 NAFTA Chapter Eleven tries to prevent “double-dipping” by requiring claimants starting a NAFTA case to waive their right to “initiate or continue other proceedings with respect to the measure at issue.” NAFTA arts. 1121(1)(b), 1121(2)(b).

context of national court proceedings. Both generally follow a first-in-time rule that requires deference to the case that was filed first, thus inspiring a “race to the courthouse.”246 Often litispendence is rejected as irrelevant to international arbitration. In the event it is considered, it requires identity of parties; identity of claims, and equality of jurisdictions,247 yet there is room for flexibility in its enforcement. When the competition, so to speak, is between national courts and arbitral tribunals, treaty-based arbitrations have generally determined that the arbitral proceeding takes precedence.248 One commentator has suggested that the principle be applied with an eye towards the “integrity of the arbitral process.”249 In CME, the Svea Court of Appeal dispensed with the res judicata and lis alibi pendens arguments relatively quickly. It was assisted by the Czech Republic’s unwise decision to waive any claims with respect to those principles. The court treated the issues as procedural matters to which Swedish law applied. It is difficult to quarrel with this determination. Moreover, given the Stockholm Tribunal’s dismissal of the issue, it may not have been properly before the court.250 Yet the result was unfortunate because of the cloud cast over the integrity of the process. The Svea court was criticized for declining to delve into the intricacies of lis alibi pendens and res judicata. It also refused to “pierce the corporate veil” to determine if there was an identity of interests between Ronald Lauder and CME. However, it is far from clear that the Svea Court’s decision would have been any different even had it done so unless it had been willing to approach the identity of the parties, and identity of the claims, in a creative and possibly novel way. . This is due partly to the limits of international law, and of the doctrines lis alibi pendens and res judicata in particular (even in municipal law the application of these principles can lead to disparate results). It is also due to the extremely broad standing doctrines set forth in many bilateral investment treaties. In an attempt to ensure that aggrieved investors are able to challenge claims, many BITs give rights to many parties, including those who exert either direct or indirect control over an investment. This was a deliberate choice on the part of State Parties, the reach of which is only just now becoming clear. An appellate body might arguably be thwarting the object and purpose of these treaties if it did not permit more than one investor to have standing in a particular dispute. The questions of lis alibi pendens and res judicata are made even more complicated when one considers the interplay between arbitral tribunals and national courts. For example, had the London Tribunal issued an award, Mr. Lauder could theoretically have sought its enforcement in Sweden under the New York Convention.251 Thus, the potential for conflicting interpretations of an arbitral award is not limited to

246 See generally Douglas D. Reichert, Problems with Parallel and Duplicate Proceedings: The Litispendence Principle and International Arbitration, 8 ARB. INT’L 237 (1992). 247 Id. at 242-43. 248 Id. at 250-52. 249 Id. at 255. 250 Rubins, Observations, supra note xx, at 210-11. 251 Soltysinski & Olechowski, supra note xx, at 233.

dueling BIT awards.252 A single arbitral award, whether in the investor-State or in the private arbitration realm, could give rise to controversy at the stage of enforcement or set-aside. For example, an award rendered in one jurisdiction can be vacated in that jurisdiction but enforced, under the New York Convention, in another jurisdiction, without regard to the vacatur.253 The New York Convention permits, but does not require, a State to refuse enforcement to an award that has been vacated in another competent court.254 The possibility for controversy will remain so long as enforcement occurs under different regimes with different rules.255 Most of this discussion has focused on the preclusive effects arbitral bodies should give to other arbitral bodies’ decisions. However, this does not answer the question of the amount of preclusive effect national courts should give arbitral awards (or vice versa). Some have suggested that one ought to be wary of leaping to the conclusion that arbitral tribunals should adopt doctrines of lis alibi pendens and res judicata wholesale.256 Moreover, the very existence of parallel systems of international and domestic law suggests that tribunals will continue to exercise concurrent jurisdiction with the concomitant possibility that they will render awards that conflict in terms of results, if not in terms of legal reasoning.

Abstention Doctrines [complete]

Conclusion

International dispute settlement is disaggregated and largely unregulated.

International tribunals do not compete as much as one might think due to the fragmented

252 See, e.g., Gabrielle Kaufmann-Kohler, Annulment of ICSID Awards in Contract and Treaty Arbitrations: Are There Differences? in ANNULMENT OF ICSID AWARDS 189, 203-05 (Emmanuel Gaillard & Yas Banifatemi eds., 2004) (discussing the concurrent jurisdiction exercised by different tribunals in Wena Hotels v. Egypt and in Azinian v. United Mexican States). 253 See, e.g., HAMID G. GHARAVI, THE INTERNATIONAL EFFECTIVENESS OF THE ANNULMENT OF AN ARBITRAL AWARD 119-38 (2002) (discussing, inter alia, the possibilities for conflicting enforcement decisions stemming from different interpretations of the New York Convention and the 1961 European Convention). 254 See, e.g, New York Convention, art. V(e). 255 Establishing a new multilateral convention, or amending the New York Convention,. to limit the fora in which parties could seek annulment has been suggested as one way to establish more uniform treatment of awards and of court decisions annulling awards. See, e.g., GHARAVI, supra note xx, at 157-162. Mr. Gharavi suggests that the ideal solution would be the establishment of such a supranational body, a result he suggests is both desirable and conceivable. Id. at 170-91. While this assessment may be accurate, the barriers to achieving such a result are enormous. It is difficult to conceive of a regime in which national courts play no role whatsoever, and the possibility of a national court’s second-guessing the supra-national court’s decision would be difficult to rule out in every case, given the national court’s concern with the integrity of its own process. 256 See, e.g., Gerard J. Sanders, Rethinking Arbitral Preclusion, 24 L. POL’Y INT’L BUS. 101 (1992) (arguing that courts should grant res judicata status to arbitral awards only for purposes of enforcement and that courts ought not grant issue-preclusive effect to arbitral awards).

nature of their jurisdictions, and due to formalistic, and possibly anachronistic, views about public international law in an era when private actors have status and rights in the public international law arena. One irony is that the very competition that most think is good in the context of international trade and investment does not necessarily translate to the provision of dispute settlement. The potpourri of potential relief fragmented among various tribunals tends not confer a big advantage on them; indeed, it leads to duplicative and inefficient proceedings. The ability of investors and their related entities to bring parallel claims for potentially duplicative relief seems like more of an advantage in that two bites at the apple are often viewed as better than one. Yet the possibility of duplicative relief and the real potential for inconsistent decisions threatens the legitimacy of international dispute settlement systems generally.

Competition between and among tribunals, when it occurs, does so along both inter-

systemic and intra-arbitral axes. Inter-systemic competition occurs when tribunals are established under evidently different treaties and apply evidently different law. Intra-arbitral competition may be said to occur when concurrent or successive tribunals convened pursuant to separate treaties or contracts have the ability to give potentially duplicative relief, albeit under formally distinct causes of action. Inter-systemic competition occurs between international tribunals, and between international and municipal tribunals.

Developing tools to manage the inevitable jurisdictional clashes is essential to maintaining the long term viability of international dispute settlement. Absent a recognition of the fact that conferring private rights on individuals requires also a coherent approach to integrating them into the public international legal order, however, progress on the coordination of disputes is likely to be haphazard and inconsistent. Unless states establish a world commercial court – an idealistic vision in no danger of coming to fruition – international tribunals will need to adapt existing approaches and develop new ones to regulate the relationships of the cases under their purview. Friedrich von Hayek portrayed law as a continuously adapting process, much like a market place.257 The hybrid nature of investment treaty arbitrations makes it an ideal laboratory to testing new solutions to problems of transnational governance and dispute settlement.

257 FRIEDRICH VON HAYEK, LAW, LEGISLATION, AND LIBERTY: RULES AND ORDER 65 (1973)

PROPOSAL 27

Kristen Boon Seton Hall Law School

The Security Council and Economic Statecraft

The Security Council of the United Nations has enacted nineteen sanctions regimes under Article 41 of the UN Charter. The majority of these regimes were put into place in the last decade, marking a sharp increase from the UN’s first thirty years when the Security Council reverted to its Article 41 sanctions powers only twice (against South Africa and Rhodesia).1 Article 41 is no longer a latent power of the Security Council hamstrung by cold war standoffs; instead it is invoked with increasing frequency by the Security Council to address an ever-widening range of conflicts. Sanctions regimes today target natural resources, impose travel bans on named individuals, review suspected terrorist financing, address non-state actors, and cover broad geographical areas. Although a substantial body of writing addresses the powers of the Security Council (the most powerful international organ in history)2 to respond to threats and breaches of the peace, the Security Council’s recent embrace of Article 41 raises a new set of questions: What are the principal characteristics of these new sanctions regimes? How is the Security Council adapting to globalization and contemporary conflicts? Who is the Security Council cooperating with to implement Chapter VII resolutions? The aim of this article is to provide a taxonomy of the last two decades of Security Council sanctions regimes in order to examine the Security Council’s contemporary engagement in economic statecraft. The evolution in the objectives of sanctions regimes is illustrative of the Security Council’s new economic statecraft. One of the most common goals of early sanctions regimes was controlling access to funds and natural resources. For example, the first sanctions regime against Rhodesia required all members to prevent import into their territories of asbestos, iron ore, chrome, pig iron, sugar, tobacco, copper and meat originating in Rhodesia. In other words, economic sanctions were implemented to limit the ability of governments to access markets, funds, weapons and supplies. Contemporary sanctions regimes may share a similar aim, but they are increasingly focused on commodities that fuel economies of war.3 Diamonds, timber, and oil are new focal points for international sanctions. Contemporary sanctions regimes are often designed to enforce peace processes, such as those in the Democratic Republic of the Congo, Cote D’Ivoire, Sudan and Iraq. To this end, the Security Council has expanded its engagement with non-state actors, whether through the direct targeting of rebel groups or individuals, or through increased reliance on other actors for enforcement. Resolution

1 Sanctions were implemented in Rhodesia pursuant to Security Council Resolution 232 (1966) and in South Africa under resolution 418 (1977). Political discord subsequently halted the Council’s sanctions activities. 2 Frowein & Krisch, Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression, in THE CHARTER OF THE UNITED NATIONS 702 (Bruno Simma Ed.) 3 Karen Ballentine: Program on Economic Agendas in Civil Wars (IPA publication, May 2004)

1171 on Sierra Leone prohibits the supply of arms to non-governmental forces, and Resolution 997 on Rwanda expands the arms embargo against Rwanda to persons in states neighbouring Rwanda if the sale or supply is for the purpose of using arms within Rwanda. Finally, prompted by the terrorist attacks of 9/11, a number of Security Council regimes seek to complement the fight against terrorism by controlling financial resources and creating administrative processes to monitor compliance.4

The Security Council’s new economic statecraft can be further illustrated by its reliance on international financial institutions. Before the 1990s, the Security Council rarely referred to international financial institutions in its resolutions. Today however, such references are frequent.5 This incorporation of IFIs into the sanctions machinery is bringing into focus the tenuous separation of powers between the IFIs and the UN. Under the Relationship Agreements between the UN and the IFIs, the Bank and the IMF are only required to give “due regard” to Chapter VII Security Council resolutions.6 “Due regard” does not indicate that Security Council resolutions are binding on the IFIs, nor have the General Counsel of the IFIs interpreted it this way. Former IMF General Counsel Joseph Gold wrote: “[T]he IMF has steadfastly avoided any statement or action that might imply that the IMF is bound by decisions of the Security Council.”7 Would the IFIs follow a Security Council resolution that required resource management or implemented an Economic Management Assistance Program with which they disagreed?8 How would the IMF view a Security Council resolution that asked the IMF to implement a financial bailout package for a failed state that might not meet the usual

4 See resolutions 1267, 1373, 1540 and 1624 5 Prior to the late 1990s, international financial institutions were rarely, if ever, referred to by the Security Council. When they were, it was usually restricted to donor coordination. For example, some resolutions urged international financial institutions to assist in coordinating and disbursing donor funds. See, e.g., S.C. Res. 1576, U.N. Doc. S/RES/1576 (Nov. 29, 2004) (Haiti); S.C. Res. 1230, ¶ 16, U.N. Doc. S/RES/1230 (Feb. 26, 1999) (Central African Republic). Others urged IFIs to contribute to economic development. See, e.g., S.C. Res. 1545, ¶ 19, U.N. Doc. S/RES/1545 (May 21, 2004) (Burundi); S.C. Res. 1542, ¶ 13, U.N. Doc. S/RES/1542 (Apr. 30, 2004); S.C. Res. 1037, ¶ 18, U.N. Doc. S/RES/1037 (Jan. 15, 1996) (Eastern Slavonia, Baranja, and Western Sirmium); S.C. Res. 1063, ¶ 5, U.N. Doc. S/RES/1063 (June 28, 1996) (Haiti); S.C. Res. 1088, ¶ 12, U.N. Doc. S/RES/1088 (Dec. 12, 1996) (Bosnia & Herzegovina). The Security Council also requested assistance from the World Bank in establishing efficient and transparent control of exploitation of natural resources in the Democratic Republic of the Congo. See S.C. Res. 1565, ¶ 22, U.N. Doc. S/RES/1565 (Oct. 1, 2004); S.C. Res. 1457, U.N. Doc. S/RES/1457 (Jan. 24, 2003). See also S.C. Res. 1528, ¶ 6(f), U.N. Doc. S/RES/ 1528 (Feb. 27, 2004) (Côte d’Ivoire). 6 Agreement between the U.N. and the International Bank for Reconstruction and Development art. I, ¶ 2, Nov. 15, 1947, 16 U.N.T.S. 346; Agreement between the U.N. and the International Monetary Fund art. I, ¶ 2, Nov. 15, 1947, 16 U.N.T.S. 326. 7 See Evelyne LaGrange & Pierre Michel Eisemann, Article 41, in LA CHARTE DES NATIONS UNIES: COMMENTAIRE ARTICLE PAR ARTICLE 1195, 1211 (Jean-Pierre Cot & Alain Pellet ed., Economica 3rd ed. 2005). The IMF makes independent findings of statehood, for example, and while it might take into account the UN’s position, it considers it as evidence, and not as a legally binding fact. See JOSEPH GOLD, MEMBERSHIP AND NONMEMBERSHIP IN THE INTERNATIONAL MONETARY FUND 56 (1974). See also THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 3-4 (1995) (discussing implications of the IMF’s 1992 determination that the Socialist Federal Republic of Yugoslavia had ceased to exist). 8 The Forest Reform Program and the Economic Management Assistance Program implemented by the Security Council in Liberia presents this potential scenario. See S.C. Res. 1689, U.N. Doc. S/RES/1689 (June 20, 2006) and S.C. Res. 1607, U.N. Doc. S/RES/1607 (June 21, 2005); see generally RENATA DAWN & LAURA BAILEY: LIBERIA’S GOVERNANCE AND ECONOMIC MANAGEMENT ASSISTANCE PROGRAM (2006), available at http://siteresources.worldbank.org/INTLICUS/Resources/DPKOWBGEMAPFINAL.pdf#search=%22economic%20management%20assistance%20program%22.

criteria? Can the IFIs implement the current sanctions against Iran (with whom they have active portfolios) if this would place them in breach of their own Articles of Agreement? This article assesses the objectives, jurisdiction and frontiers of the Security Council’s new economic statecraft in order to explore how the Security Council is departing from a consent-based international law making process, and how it is using its sanctions powers to respond to contemporary threats to international peace and security.

PROPOSAL 24

Gregory W. Bowman Mississippi College School of Law

Winning the Battle but Losing the War? Reflections on Extraterritorial Jurisdiction in

U.S. Export Control Laws For the past quarter century, the United States has asserted extraterritorial prescriptive jurisdiction over U.S. origin goods and technologies that were already located abroad. Moreover, this jurisdictional claim under U.S. export control laws is based on the origin of the goods and technologies themselves, and not on the nationality of the parties involved. This unprecedented claim of item-based (as opposed to person-based) jurisdiction is one of international law’s more intractable jurisdictional issues in recent years. While the genesis of this jurisdictional claim—U.S. efforts to thwart construction of a trans-Siberian pipeline in the early 1980s—is long gone, to this day the United States continues to assert item-based extraterritorial jurisdiction under its export control laws. The validity of this U.S. claim was debated at length by scholars in the 1980s and early 1990s, but there has been less focus on the subject in recent years, perhaps due to the lack of another galvanizing, headline-grabbing event such as the trans-Siberian pipeline controversy. Yet the subject of item-based exterritorial jurisdiction is worth revisiting now for two reasons. First, there has been a dramatic upsurge in global trade in the past fifteen years, and increasingly both production and research and development activities are trans-border in nature. This means there are more foreign activities in which U.S.-origin goods and technologies are being used—and this in turn means there are more foreign activities over which the United States claims item-based extraterritorial jurisdiction. Second, the current national security and foreign policy landscape is vastly different from that of the Cold War and the pre-9/11 era. Could such changes substantially affect our analysis of item-based extraterritorial jurisdiction and its validity? This article presents a two-part thesis. First, it argues that item-based extraterritorial jurisdiction in fact can be justified under existing international law doctrine, and that these justifications are consistent with the national security goals of both the United States and its major trading partners. Second, however, an exploration of these justifications reveals that “justifiable” does not mean ideal, or perhaps even close to it—and that the very national security goals pursued by the United States through item-based extraterritorial jurisdiction could be better served by a departure from the item-based model. Stated differently, item-based extraterritorial export controls are legally adequate but strategically imperfect. In exploring the first part of this thesis, the article will analyze earlier scholarship on extraterritorial export jurisdiction and discuss how changes to the modern global landscape may lead to different legal conclusions today. For example, some previous commentators concluded that item-based extraterritorial jurisdiction could not be justified under the protective principle, and certainly not under the universal jurisdiction principle.

However, with the emergence of decentralized terrorism in recent years, might the protective principle be sufficient justification for extraterritorial jurisdiction? Given the general global consensus against terrorism and proliferation of weapons of mass destruction, might universal jurisdiction even be justified, assuming of course that definitions of such activities can be agreed upon? Other previous avenues of inquiry, such as analyzing extraterritorial jurisdiction using principles of comity, functional association, or reasonable connections, will also be revisited and discussed. In addition, more recent scholarship on voluntary inter-governmental cooperation will be explored as a means to justify item-based extraterritorial jurisdiction. Specifically, the article will explore how transnational mutual recognition regimes and other nonbinding efforts by governments to coordinate their national laws and policies may play into—and perhaps help justify—item-based extraterritorial export controls. In discussing the second part of the above thesis—that “justifiable” does not mean ideal—the article will explore how U.S. export controls might be reformulated. Reconsideration of the primary national security purposes of these controls suggests that these purposes could be better served by a departure from the item-based model. Such a change would have the dual benefit of making any extraterritoriality in the revamped controls both more easily justifiable and less objectionable to major U.S. trading partners. It also might lead to greater multilateral cooperation in the area of export controls—which in turn could lead to greater consensus, and thus even stronger legal justifications for these controls under international law. The article will close with some observations about how such changes might be achieved, either with or without changes to the underlying statutory structure of U.S. export controls.

PROPOSAL 12

Karen Bravo Indiana University School of Law - Indianapolis

Exploring the Analogy between Modern Trafficking in

Humans and the Trans-Atlantic Slave Trade In 2007 the United Kingdom celebrates the 200th anniversary of its abolition of the trans-Atlantic slave trade. In 2008 the U.S. will mark the 200th anniversary of its own prohibition of the trans-Atlantic trade. Yet, according to various sources, 27 million people worldwide are enslaved, and each year 50,000 people are trafficked into the U.S. The modern “re-emergence” of trafficking in human beings and of slavery is said to be linked to the deepening interconnection among countries in the global economy, overpopulation (with its consequent production of disposable people), and the economic and other vulnerabilities of the victims. In response to the reported increase, some academics have explored the potential applicability of the Thirteenth Amendment of the U.S. Constitution. Also, a significant number of academics and commentators highlight in their work the evolution of the attempts to deal with the phenomenon of modern trafficking in humans from the international and domestic U.S. reactions to the “white slavery” hysteria of the late nineteenth and early twentieth centuries and the international instruments formulated to combat it. In addition, references and analogies to the trans-Atlantic slave trade are also made in government policy statements, in the literature analyzing the modern phenomenon and in other fora. Commentators analogize to the trans-Atlantic slave trade and slavery in order to emphasize the similarities in the phenomena and to urge that like-minded people rise up to end the appalling practice, much as was eventually done to end the trans-Atlantic trade. The content of the analogies varies with the intent of their users. Either “the old slavery” is compared to “the new slavery” with respect to, for example, the egregiousness of abusive treatment of the enslaved, the level of interconnection of the phenomenon with the global economy, or the race or ethnicity of the victims in order to distinguish the new slavery from the old. Often, the implicit hypothesis is that modern slavery is more widespread and awful, and involves more victims and, by extension, more human degradation than did the trans-Atlantic slave trade. Still others invoke the trans-Atlantic slave trade and slavery to assume a mantle of self-righteousness, and distance themselves, their political and economic system, their state and its efforts, from the repugnant phenomenon. Is the analogy to the trans-Atlantic slave trade and/or slavery relevant? Is it useful? Can it contribute to understanding of the phenomenon of modern trafficking in humans or lead to mechanisms to combat human trafficking in the Twenty-first Century? It is my hypothesis that those who have used the analogy have failed to explore it other than superficially, or to adequately map out the similarities and differences between the two

phenomena. As a consequence, the ability to effectively combat the modern traffic in human beings (or indeed, to combat the slavery (or exploitative or forced labor) of the estimated 27 million people who are held in slavery within state borders but not trafficked) has been compromised both internationally and domestically. I argue that the analogy is underutilized as currently used because it does not illuminate the essential similarities or differences in the phenomena. Instead, use of the analogy too often appeals to emotions to serve particular ends of the user. The analogy to the trans-Atlantic slave trade can be relevant if explored more deeply – there are similarities not merely in individual plights but in the deeper structures of the world economic system and the factors that cause and foster the rise in the phenomena. Comparisons of the modern trafficking in humans and the trans-Atlantic slave trade reveals the essential nature of the phenomena – at bottom, they both trade in human labor. The predecessor empires to today’s states, such as Great Britain, Portugal and Spain, funded, supported and protected the birth and rise of trans-Atlantic slavery to satisfy the demands for labor of their economies and the economies of their overseas colonies. The growth of the nation state and the concomitant increase in the legislative and other barriers to the movement of peoples has driven and continues to drive the movement of people (and their labor) underground. Unlike the peoples of England, Spain and the other colonial empires who lived intimately with slavery, the modern consumer in the West can remain blissfully unaware of the link between his economic well-being and the enslavement of others. In the twentieth and twenty-first centuries, by creating the pre-conditions for human smuggling – and by extension human trafficking – together with failure to deploy consistent internal policies regarding the movement of peoples, the U.S. and Western Europe lay the foundations for the thriving market in human labor represented by illegal immigration and its worst form – the trafficking in humans. Migrants seek to exchange their labor for value – to respond to market forces that promise higher prices for that labor across international/state borders. If the comparative advantage of some – usually developing – countries is their abundance of available labor, individuals and organizations from those countries should be able to freely trade their labor internationally. The increasing use of barriers to movement of people (and their labor) is based, among others things, on concern for state national security. Also present is the fear that to allow unconstrained movement of peoples and the sharing in the wealth of Western countries might result in the loss to the West of that wealth and its advantages. I examine uses of the analogy to the trans-Atlantic slave trade and their impact, and map out the characteristics that both underlie and distinguish the phenomena to determine whether the trans-Atlantic slave trade, more than the “white slavery” of the late nineteenth and early twentieth centuries offers lessons that may be used to combat modern trafficking in humans. The heritage of “white slavery” is more entrenched in the legal frameworks constructed in response to the modern traffic, but the analogy to the trans-Atlantic slave trade adds to a richer understanding of the modern phenomenon and illuminates a potentially more effective path to its eradication. While it is the trans-Atlantic slave trade analogy that is most frequently invoked, it is the mechanisms to

combat the later “white slavery” that are the progenitors of the most dominant of the frameworks used to understand and combat the modern traffic. I also expose the inherent contradictions of the competing (and complementary) invocation of analogies to trans-Atlantic slavery and the white slave trade: while the users of the analogy invoke the image of enslaved blacks to inspire the taking of action against the modern trafficking in humans, at the same time the subordination of blacks, blackness and the colored “other” is viewed as more “natural” than the enslavement of whites and whiteness. It is the enslavement of whiteness that, together with the threats to state borders (territory and authority) precipitated a coordinated international campaign against modern traffic in humans. And, ironically, the racism that arose from the phenomenon of the trans-Atlantic slave trade prevents users of the analogy from delving more deeply into the substantive meanings and similarities between the two phenomena.

PROPOSAL 3 Paul H. Brietzke**

Valparaiso University

PLAYING POKER AT THE U.N.*

The sprawling institutions of the U.N.1 are the major sources of a modern international law. They generate a bewildering variety of treaties which are opened for nation-states to sign (although subsequent implementation and enforcement are much more problematic), as well as create reams of international “soft” and customary law.2 Founded sixty years ago, more or less, and now facing mid-life crises, the U.N. sought to reform itself through initiatives that responded to perceived crises. This process came to a head at the September 2005 World Summit, and this article seeks to explain why these initiatives largely failed, why international law thus remains mostly unchanged. A poker-like model is adapted to explain U.N. processes.3 The 2005 reform initiatives are then analyzed with the help of this model4, with particular attention being paid to human rights (non-)reforms and (the lack of) progress over implementing the Millennium Development Goals.5 Assuming that this degree of reform failure is undesirable, at least on balance, some remedies are then discussed.6 Four interrelated definitions of international law will be used in this article. Ideally, international law (and the other functions of the U.N.) seeks to enhance security and a human dignity/capability. Second, international law seeks to implement a seeming paradox: global governance without a global government, able to harmonize, integrate, and enforce laws and policies.7 Such arrangements create what economists call ** Professor, Valparaiso University School of Law; B.A. Lake Forest, J.D. Wisconsin, and Ph.D. London; Paul.Brietzke@valpo.edu. Comments and criticisms are welcome. * Presented to the Comparative Constitutionalism and Rights Conference, Dec. 10-13, 2005, Durban, South Africa. 1 See Roger Coate, U.N. World Summit Set to Begin, WASHINGTON POST, Sept. 14, 2005, 2 PM (all POST articles read off <WashingtonPost.com>. The U.N. is a “family” of intergovernmental agencies: the International Labour Organisation, the World Bank, the World Trade Organization, etc. etc. Reform must thus be seen as systemic, “not just tinkering with things in New York.” Id. 2 Paul Brietzke, Insurgents in the ‘New’ International Law, 13 WIS. INT. L. J. 1 (1995). 3 See notes ___ and accompanying text, infra. 4 See notes ___ and accompanying text, infra. 5 See notes ___ and accompanying text, infra. I will follow precedent set by Philip Alston _____________, and reproduce the Millennium Development Goals in the Appendix. 6 See notes ____ and accompanying text, infra. 7 JOSEPH STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS 21 (2002); Paul Brietzke, Globalization, Nationalism, & Human Rights, ___ U. FLA. J. INT. L. ___ (2006). See Tony Evans, International Human

“collective action problems”8, and analogies to such arrangements can be seen in the long history of Islamic or Judaic law and (by anthropologists) among indigenous groups who lack formal rulers and thus live by reciprocal observances of rules.9 Third, while the profits from an economic globalization can usually be appropriated by particular corporations or countries, most of the rest of international law seeks to create “public goods”: human rights, peace, development, a healthy environment, etc. These goods belong to everyone, and no one (other than an altruist) wants to bear the costs of pursuing them; unlike profits from an economic globalization, they cannot be appropriated for the pursuer’s sole benefit in the short run. Another set of collective action problems, or “market failures”, arise from the resulting under-supply of these public goods; none but altruists will pursue them in the poker games to be described, except when these public goods serve some other game purpose. In other words, everyone wants to win even more by being a “free rider”, who reaps good things paid for by others.10 Fourth, international law provides the rules for the poker games that will be described. These games are about access to, and a measure of control over, an interchangeable wealth and power pursued through legal (and other) processes.11

THE GAMES’ AFOOT

To paraphrase William Blake, I must either create my own model or be dominated by someone else’s.12 However, the reader is promised that taking the time to understand my poker model will yield important insights not readily available in other ways. Anyone who analyzes the international law produced by the U.N. necessarily uses an explicit or implicit model, if only to tame the intractability of the material. For example,

Rights Law as Power/Knowledge, 22 H. RTS. Q. 1046, 1054 (2005) (“discipline” as social organization without the need for coercion, “a form of modernist power”); id. at 1065 (pessimists quote investment banker Robert Hormats—the “great beauty of globalization is that no one is in control.”). The argument at 1054 shows Evans is British, since it was first used by the poet Mathew Arnold when he was also Headmaster of Rugby School (where the sport of loosely-organized mayhem originated). It later formed the ideology of British colonialism in Africa: governance with the fewest resources possible, sometimes called Indirect Rule. 8 Eric Posner, International Law: A Welfarist Approach (2005) (Olin L. & Econ. Pap. 2d, No. 256 & SSRN 811554); John Yoo, Force rules: U.N. Reform & Intervention (2005) (Berkeley Pub. L. & Res. Pap.) (Both articles can be downloaded from <SSRN.com>). 9 Brietzke, supra note 7. 10 Id.; Posner, supra note 8; Yoo, supra note 8. Posner, id., offers an example: even if all countries would have been better off if genocide in Rwanda has been stopped, each country would have been even better off if other countries bore the considerable risks and costs of procuring this stop. (This is like using other people’s money to play poker, while keeping any winnings for yourself). 11 Brietzke, supra note 7, from which the model to be presented has been adapted. 12 Regrettably, I have lost the source of this quote.

two game theorists13 won the 2005 Nobel Prize in Economics for modeling a relatively well-known means of conflict management, which grew out of the (bipolar, in both senses) Cold War. Inevitably under such models, even sharp competitions must take place within a cooperative framework, so that a game does not end in the violent conflict that spawns international anarchy. Building trust and collaborations through small compromises proves the most fruitful path, since you can always punish uncooperative players (perceived defectors) in subsequent rounds of play ("hands” of poker). 14 Briefing the U.S. House International Relations Committee, Deputy Secretary General Mark Malloch Brown argues that U.N. reform “has to be the work of a coalition, and holding that coalition together is the surest way to success.”15

Our topic—multidimensional and interrelated disputes and needs, occurring in many geographic and subject matter areas at the same time—is far too complex16 to be modeled as the two-person, one-subject game described in the last paragraph. Likewise, there are few “economies of scale in a [legal] rule specific enough unambiguously to govern a decision; over time, the increasingly-difficult question becomes which of these proliferating specific rules resolves a particular dispute with some degree of flexibility.”17 This complexity, and the uncertainty it inevitably breeds, are not products of an international anarchy. A more nuanced view of governance is required: a search for

13 I.e., the American Thomas Schelling and the Israeli Robert Aumann. See The Trade Game, L.A. TIMES, Oct. 13, 2005 (all L.A. TIMES articles are read off <LATimes.com>); War Games, THE ECONOMIST, Oct. 15, 2005, 82. 14 Brietzke, supra note 7; The Trade Game, supra note 13 (modeling the Doha round of WTO trade negotiations); War Games, supra note 13. 15 Mark M. Brown, Briefing to the House International Relations Committee, Sept. 28, 2005 (transcript available at <unfoundation.org>. 16 Coate, supra note 1; Alberto Romulo, The United Nations and the Building of a Better World, MANILA TIMES, Oct. 3, 2005 (Philippines Foreign Affairs Secretary) (read off <manilatimes.net>). See MARK TAYLOR, THE MANAGEMENT OF COMPLEXITY: EMERGING NETWORK CULTURE 3 (2001) (we’re in an “era of unprecedented complexity, when things are changing faster than our ability to comprehend them.”); id. at 13 (we are far from equilibrium, at the edge of chaos under complexity theory; all significant change occurs in the area lying between too much and too little order). 17 Andrew Guzman, Why LDCs Sign Treaties That Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 VA. INT’L L. 639, 641, 644 (1998); Werner Hirsch, Reducing Laws Uncertainly and Complexity, U.C.L.A. L. REV. 1233 (1974). See MICHAEL KING & CHRIS THORNHILL, NIKLAS LUHMANN’S THEORY OF POLITICS AND LAW (discussing Luhmann’s analyses), id. at 285 (“awareness of complexity” eclipses the claim that the problems of the world can be worked out logically or even theoretically.”); id. at 286 (“the pressure for action often cuts short the search for knowledge short.”); NIKLAS LUHMANN, OBSERVATIONS ON MODERNITY 27, 67-68 (1998); Paul Blustein, U.S. Free Trade Deals Include Few Muslim Countries, WASHINGTON POST, Dec. 3, 2004, E1; Nobles & Schiff, supra note 8, at 50; Exclusive, THE ECONOMIST, Nov. 20, 2004, 78.

fairly stable “rules of the road” rather than an automatic, Hobbesian18 recourse to coercion—which is usually too costly these days, for a variety of reasons. The need for cooperation and coordination during a bargaining can often be met, even in the absence of a developed global state, because the truly significant international “players” are few in number. They are five in fact, and they constitute what economists might call a “loose oligopoly”: the U.S., Russia, China, the European Union, and the U.N. itself. (The latter two act as major players only when members coordinate their communications, power and resources effectively—something the other majors can usually take for granted, although Congress sometimes speaks in a different voice from that of the President for example.) The very existence of the game (described infra) shows that, unlike a globalized economy or science for example, politics still recognizes and informally operates through nation-state boundaries that define the “players”, through the sovereignty that still proves both inevitable and necessary in international law and relations. Thus the game fosters recognition that both the successes and the failures of the U.N. and of its international law are those of interacting nation-states. The game offers some solutions to economists’ “collective action problems,” and to dealing with “public goods” and “free rider” problems that are stimulated by the existence of very high “transaction costs” in international relations. The resulting outcomes are necessarily too complex to be captured by simpler versions of economists’ game theory.19 The global relations of the five major players play out against a backdrop of what economists might call a “competitive fringe”: the many countries that are too relatively poor and/or powerless to effect outcomes much overall. Their role is usually supportive of consensus among some or all of the five major players. This tactic minimizes the antagonizing of major players and perhaps provoking their retaliation, and it gives the minor players a sense of inclusion in, and a “soft” power through, international law and relations. Some of these many countries have a situational or geographical power with regard to particular issues, a power which forces the majors to take them into account for some purposes: Saudi Arabia’s oil and its funding of Islamic fundamentalism in many Muslim countries20 or India and Pakistan in relation to Kashmir, for example.

18 In the sense that Hobbes’ state of nature is sometimes evident in global society. He assumed that we would agree to Leviathan under such a SON, but global society is too complex and too democratic in parts for such a consensus to emerge. See text accompanying notes ___, infra. 19 Michael Glennon, Idealism That Won’t Work (2005) (SSRN Paper No. ____); Douglas Snidal, Political Economy and International Institutions, 16 INT’L REV. L. & EC. 121, 126-28 (1996). See THOMAS JACKSON, THE JURISPRUDENCE OF GATT AND THE WTO: INSIGHTS ON TREATY LAW AND ECONOMIC RELATIONS 149, 156 (2000); Richard Nobles & David Schiff, Introduction, in NIKLAS LUHMANN, LAW AS A SOCIAL SYSTEM 1, 49 (2004) (discussing Luhmann’s ideas); notes 13-16 and accompanying text, supra. 20 Saudi Arabia was a good counter to Egypt’s Nasser and then Saddam, and a surrogate after the Shah of Iran was overthrown. But the U.S. inability to wean itself off cheap oil, and corrupting contacts between U.S. and Saudi elites blinded the U.S. to the Saudi nurturing of a militant anti-Westernism—including that of Al Qaeda, and the alienation of its own subjects and freedom lovers generally. Milton Viorst, Desert Storms, THE NATION, Sept. 26, 2005, 31.

A helpful extended analogy illustrating this small group behavior has us imagining the five majors playing global poker games.21 They have played together for so long that each is aware of the past behavior patterns of the others, although the styles of play from some new player-representatives—Bush/Bolton or Putin, for example—can disrupt the game (infra). In particular, each player has views about the strengths and weaknesses of its own play, and especially about the reactions other players will have to its own projected actions. Unlike chess, poker is played at speed and player information is seriously incomplete. Players try to fill informational gaps by evaluating opponents’ behavior, while attempting to conceal the significance of their own behavior: in other words, practising good diplomacy. (In contrast, Bush telegraphs tactics in his speeches.)22 These anticipated reactions affect the players’ actions in turn. The barriers to becoming a major player are huge, which is just the way incumbent major players want to keep it. Such conditions hold sway even if other seats around the poker table (up to a total of eight, say, although up to ten can play 5-card stud) are filled by temporary players: e.g., Japan and North and South Korea, but not the U.N. for the most part, during six-sided negotiations over North Korea’s nuclear ambitions. The range of feasible outcomes from any given “hand” (round of play) is reduced markedly by such particular players’ predilections, but the actual outcome is still indeterminate because of unforeseen events which are external to the game and because information is imperfect: who has which cards (or which “hole” card(s), if “stud” poker is being played) and how these cards will be played, for example. North Korea’s nukes offer a useful example here. While Russia has been rather inactive, China has bet the most and has the biggest stake in the matter—rivaling North Korea’s stake, even. Resolving this dispute would greatly enhance Chinese prestige, by helping to convert its growing economic power into a geopolitical power. China has leverage, controlling 30% of North Korea’s food and more than 70% of its fuel, but China also has the most to lose: the collapse of the North Korean regime would flood China with many stability-endangering refugees. South Korea’s style of play has changed, from fear to an ambiguous pity for brethren who could never be absorbed economically, through reunification. U.S. game-play is difficult to evaluate. Like China (and Russia, infra), North Korea threatens U.S. military dominance in the region, and poses a diffuse threat to a valued ally, Japan (but probably not South Korea), yet Japan seems only mildly concerned. Above all, mutual incomprehension and translation 21 See JAMES KOCH, INDUSTRIAL ORGANIZATION AND PRICES 268-69 (1974); F.M. SCHERER, INDUSTRIAL MARKET STRUCTURE AND ECONOMIC PERFORMANCE 165 (1970); supra note 108, at 268-69; SCHERER, supra note 108, at 165; DAVID SKLANSKY, THE THEORY OF POKER (4th ed. 2005); HOYLE’S RULES OF GAMES 241-79 (Albert Morehead & Geoffrey Mott-Smith, eds., 3d., rev. ed. 2001). The ideal analogy to oligopoly would: define the number of actors and account for procedures, asymmetries (especially of information and a limited understanding of political and economic forces), the ways expectations are conveyed, an uncertainty of outcomes, and the managing of cooperation. See JACKSON, supra note 17, at 18, 42, 156; Snidal, supra note 19, at 123-24. The poker game analogy arguably satisfies these criteria. 22 SKLANSKY, supra note 21, at 17, 245. See HOYLE’S, supra note 21, at 267; Marking the Dealer’s Cards, THE ECONOMIST, Nov. 26, 2005, 92 (Friedrich Hayek saw the economy running on “dispersed bits of incomplete and frequently contradictory knowledge” communicated to everyone through shifts in market prices—or bets in the poker model).

difficulties plague the course of play against each other by the U.S. and North Korea. It is thus difficult to know the outcome from quite a few “hands” (rounds of play): who won and lost what? Was some agreement reached and, if so, what are its terms? Does it include a light-water reactor for North Korea?23 Above all, have global concerns over a nuclear proliferation gotten lost during the heat of play—perhaps because U.N. involvement has been mostly limited to providing food aid to North Korea? Poker player-representatives are nation-state leaders or their appointees, who thus play poker with others’ (taxpayers, etc.) interchangeable wealth and power. Their style of play is thus less cautious than it would be if players were investing their personal wealth and power in the game. The playwright David Mamet displays a deep understanding of poker while modeling contemporary American politics.24 For Mamet, the only way to win, to seize the initiative, is to “raise” (bet more than the other players during the current betting round). But if you have never raised before, the other players will simply “fold” (leave the game, and leave you as the winner of relatively little; this is the tactic today’s Democrats use in the U.S.). On the other hand, an excess of your past raises in poker (a Bushian over-aggressiveness, for example) makes the other players suspicious. One or several will likely “call your bluff” by matching or raising your own raise(s), thus forcing you to show your cards. But if you don’t raise, you will “ante” your life away (pay the minimum necessary to play each hand) and go home broke. Mamet concludes that there is no certainty in poker, only likelihood, and “the likelihood is that aggression will prevail.”25 Over time, the “luck of the draw” (the cards you get in a particular hand) evens out, so success or failure turns on how well you play all of the hands—or perhaps on how unobtrusively you cheat; cheaters are shunned or worse, however. Players can set their own ethical standards but, generally, anything short of cheating—e.g., deviousness or deceit—is acceptable. Partnerships among players are contrary to the spirit of the game yet (like bidders’ rings at auctions) difficult to detect. The “cards speak for themselves”, and players who have not dropped out must show theirs—providing information on their style of play to the others.26 David Sklansky adds: “rarely if ever is a particular play always right or always wrong. Your play is affected by the size of the pot {the money-

23 Philip Bowring, Modeling Korean Unification, INT. HERALD TRIB., Sept. 27, 2005 (read off Internet); Joseph Kahn, North Korea Sets New Demand for Ending Arms Program, N.Y. TIMES, Sept. 15, 2005 (all TIMES articles are read off <NYTimes.com>. Glenn Kessler, What That Accord Really Says, WASHINGTON POST, Sept. 25, 2005, B2 (all POST articles are read off <washingtonpost.com>); Tong Kim, You Say Okjeryok, I Say Deterrent, WASHINGTON POST, Sept. 25, 2005, B1; Charles Krauthammer, China’s Moment, WASHINGTON POST, Sept. 23, 2005, A23; The Deal That Wasn’t, THE ECONOMIST, Sept. 24, 2005, 49; North Korea Rejects UN Food Aid, Sept. 23, 2005, 2140 GMT (read off <BBCNews.com>). 24 See David Mamet, Poker Party, L.A. TIMES, Sept. 16, 2005. 25 Id. But see also SKLANSKY, supra note 21, at 87, 121, 136 (a raise should be a rare ploy to obtain information or when you expect greater subsequent improvement in your hand than your opponents will have); id. at 133 (“raising is often a better alternative than folding, with calling the worst of the three.”) 26 Id. at 137; HOYLE’S, supra note 21, at 250, 266.

backed chips to be won, lying in the middle of the table}, your position {whether you bet relatively early or relatively late during a round}, the amount of money they have and you have, the flow of the game, and other, more subtle factors.”27 A simple game thus becomes quite complex when played by experts. Consider a decision over “bluffing” (betting when you have no chance to win if your bet is “called”) versus betting a fair hand for value, where both plays may be appropriate and it is almost never right to do neither. The decision turns on your view of your opponents, and the self-image you want to project for the future: you may want to be “caught” bluffing, to earn even more money later on a good hand because opponents think you are bluffing again. Those who never bluff or bluff too much become losers.28

As a poker player, the Bush Administration bluffs excessively and in a particular way, by acting like a “plunger.” With more wealth, military power, etc., than any other player, the U.S. bets high at every opportunity, to drive opponents out of the hand (force them to “fold” because they lack the wealth and power consistently to challenge the U.S.), and perhaps out of the entire game. The outcome, regardless of the cards the U.S. holds, is more “pots” for it since some opponents with better cards will “fold.” These pots are smaller, however, because some or many potential bettors have been driven out earlier. Expert players with adequate resources love a plunger like the U.S., relying on it to subsidize their lifestyles: consider Israel and Egypt, reaping huge foreign and especially military aid “pots,” even though they have nowhere else to go or other viable modes of play. They even seem to provoke additional bluffs from the U.S. (which they will cheerfully “call”) by praising American sloppiness: betting heavily on a dubious Mideast “democracy” while supporting autocrats, for example.29 Unless the developing minor players are very skilled, their play is often desperate, since they are playing with money provided (under tight strictures) by the IMF, the World Bank, etc. Some of this money originally comes from the U.S. which, in this sense, is playing against itself. In sum, the Bush Administration plays by a failed (perhaps neoconservative or imperialist) formula, rather than adjust its play according to who the relevant players are and the structure of the particular game being played: e.g., the size of the ante and the betting rules. In contrast, good players are intentionally inconsistent—bluffing randomly and even seeming to blunder on occasion, in ways which can often be assembled into a winning strategy later. This is especially effective if it is combined with disparaging, distracting, and/or confusing talk: consider Fisher playing chess with Spassky or Khrushchev playing almost anybody. If you are a good player, you know what your opponents think your cards are, and what your opponents think you think their cards

27 SKLANSKY, supra note 21, at 172-73. 28 Id. at 164, 173-76. 29 E.g., the November 2005 Forum for the Future in Bahrain, the conference/centerpiece of Bush’s Middle Eastern democracy initiative, collapsed over “Egypt’s insistence that Arab governments should have more control over grants from a new {U.S.} fund designed to help local pro-democracy groups.” William Fisher, Forum for the (Distant) Future, IPS, Nov. 28, 2005.

are.30 The Bush Administration cannot be troubled with such niceties of the game, or even with getting to know their opponents: simply deem the North Koreans “inscrutable” for example, and you will likely lose. Analytically, the most important point is that the major poker players recognize their interdependence, which makes the course of play less fun but more predictable. Economists might call the major players’ an “oligopolistic interdependence,” to reflect the absence of consistent collusion among the majors. Each major wants to “win” each hand for itself of course, perhaps with each major defining what amounts to a win somewhat differently, and each is keen to avoid the huge costs of monitoring the others’ opportunistic defections from a more formal “cartel.” (Interdependence does not necessarily mean stability, in the sense of an inherent tendency toward some equilibrium.) But even more important than winning for the majors is to not lose in certain ways: they seek “minimax” solutions while avoiding war or some other painful (costly) disaster. Disastrous examples would include the Zimmermann Telegram that helped to spur World War I, and putative weapons of mass destruction (W.M.D.) in 21st Century Iraq. Saddam offered a puzzle to the gamers, by giving only the most grudging cooperation to U.N. weapons inspectors when he had no W.M.D. Did he want to conceal the humiliating fact that he had nothing to hide31—a hubris surpassing even that of Zimbabwe’s Mugabe? Players recognize that the safest way to avoid disaster while playing to win is to play by “liberal internationalism” rules, for want of a better description for ‘advanced poker’ or the anti-Hobbesian rules of the road. Ordinary poker is a zero-sum game, winners benefit only at the expense of losers, while (an imaginary) ‘advanced poker’ is played in positive-sum ways: all or most major and minor players benefiting from a particular game, through cooperation and coordination. Over time, the players display an enhanced trust, sense of injustice—particularly but not only as it affects themselves, and even self-denial on occasion. This is especially true when a public (“non-rival”) good can be won—your use of it does not interfere with my use—and reaches a peak over “network effects”: the more people who act in the same way (use Microsoft Windows or act in accord with a particular law for example), the more useful that good becomes for everyone.32

30 See id. at 149; id. at 152 (“Many aggressive players … steal money with bluffs”, etc. “but when they get a decent hand, they wind up losing.”); id. at ____. 31 SKLANSKY, supra note 21, at 252, 257; War Games, supra note 13. Posner, supra note 8, argues that “regional successes”—NATO, the EU or NAFTA, for example—“are based either on the small number of parties or the dominance of a few large parties.” Similarly, “the dominance” of the major players helps explain poker outcomes, but an oligopolistic interdependence among them does not consistently generate the degree of consensus seen in Posner’s “successes.” 32 SCHERER, supra note 21, at 135, 166, 443; Snidal, supra note 19, at 122-23; The Concrete Savannah, THE ECONOMIST, Dec. 24, 2005, Christmas Survey 9, at 10; The Economics of Sharing, THE ECONOMIST, Feb. 5, 2004, 72. See KOCH, supra note 21, at 328 (in the course of play, oligopolists “outline spheres of interest” which change over time); ROGER MILLER, INTERMEDIATE MICROECONOMICS, (discussing George Stigler’s implicit collusion among oligopolists, because explicit collusion is too costly); id. at 352 (price

While often-inconsistent or –incoherent rules emerge as a side-effect of ordinary poker, a relatively integrated body of international law can be built up through the group cooperation of ‘advanced poker’ over time. This is something no major player can do by itself—through its domestic rules, for example. Multinational corporations, and other nongovernmental organizations (NGOs) like Greenpeace, Amnesty International, and al-Qaeda, (the Vikings of our time, alas), also play ‘advanced poker’ at its fringes, strengthening global cooperation for their own purposes. Even though processes may have a goal-orientation, rounds (or hands) are usually played in cautious and incremental ways. Effects are occasionally broad and deep over time, but particular outcomes are more frequently halting and display some or much backsliding by some or many players. Planning or preventative action is usually impossible; you must play the cards dealt you (in our analogy and in reality) under a short time horizon. Cooperation is never perfect: mistakes happen; rebelliousness occurs, especially among states taken for granted because of their long record of cooperation; and major and minor States sometimes prefer national interests (centrifugal aspirations) over a liberal internationalist consensus.33

A country can be called a “rogue” if it refuses to follow this liberal internationalism consensus, over major issues and for extended periods of time. If a rogue is relatively poor and powerless, it is simply ignored: Zimbabwe for example—with disastrous human rights consequences there. A more powerful rogue gets disciplined by the majors if they can reach consensus over how to do this: for example, a proto-nuclear Iran or a chronically rights-abusing oil state like Sudan. Almost always, a relatively poor and powerless state is best advised to play a different game or by slightly different means to create a “niche” for itself (clever advertising or a slightly different product are examples drawn from the economics of oligopoly), which will be tolerated by

wars as evidence of temporary disruption of communication channels among oligopolists); JEFF PERLOFF AND KLASS VANT VELD, MODERN INDUSTRIAL ORGANIZATION 175, 229n., 816-17 (2d ed. 1994); SCHERER at 443 (recognition among oligopolists that aggressive actions provoke aggressive reactions, which leads to mutual restraint); Snidal, supra note 28, at 133 (need for cooperation and coordination through bargaining internationally); Concrete Savannah, at 11 (“humans are hard-wired not for logic but for detecting injustice.”). 33 SCHERER, supra note 21, at 166; MICHAEL WALZER, ARGUING ABOUT WAR, 167, 170-81 (2004); Niall Ferguson, A World Without Power, FOREIGN POLICY July/Aug. 2004, 23, at 38 (the “Vikings” allusion); Walter Mead, Sticky Power, FOREIGN POLICY Mar./Apr. 2004, 46, at 51; Shawn Turnbull, Evergence of a Global Brain: For and From World Governance (2005) (read off SSRN.com as no. 637401). See JACKSON, supra note 2, at 33 (discussing the tendency to overlook GATT obligations, especially when these are owed to the poor and powerless); id. at 42 (perfection can’t be expected among players with diverse interests); id. at 156 (the tactic of erecting barriers which cost your opponents more than they do you); KOCH, supra note 108, at 350 (information about future states of the market isn’t free, and therefore neither are decisions about what to do so that most simply follow the behavior of the major players); Amman Says US Should Support Millennium Development Goals, REUTERS, Sept. 5, 2004, 2136 GMT (read off <alertnet.com>) (asked about U.S. Ambassador Bolton, Amman stressed “give and take” or “in the end you can’t be effective”; “consensus at all costs” creates “191 vetoes.”).

the major players because it does not disrupt their overall games.34 Singapore, for example, has become much richer and somewhat more powerful in quite specialized ways. Yet Singapore is tolerated by the majors because, as a city-state, it lacks the capacity to become a major player—a capacity possessed by the India, Brazil, Indonesia, and even the Argentina and South Africa that are thus watched carefully by the incumbent majors. The game totters along, minor rogues notwithstanding, but its continuance is threatened—as are the disasters that liberal internationalism rules are designed to avoid—when a major player becomes a rogue. After all, the last bout of globalization ended when unresolved political tensions among the then-majors and their satraps exploded into World War I. Even sophisticated subsystems may be unable to block the causes of their own destruction. The (Younger) Bush Administration arguably turned the U.S. into a major-player rogue, by refusing to make important game moves under liberal internationalism rules35 and thus distorting the goal-orientation of governance without a 34 KOCH, supra note 21, at 350; SCHERER, supra note 21, at 10, 209; Sebastian Mallaby, Making Globalization Work, WASHINGTON POST, Feb. 28, 2004, A17. See SCHERER, at 209 (in an oligopolistic market, limited deviations operate to inhibit retaliation). 35 E.g., the U.N. supported the U.S. in the Korean War, Iraqi War I (1991), the re-installation of Aristide in Haiti (1994) and helped the U.S. settle the Suez Crisis (1956) and the Cuban Missile Crisis, 1962. Steven Schlesinger, The U.N. Under Siege, Mar. 17, 2005 (Maximnews.com). Bush the Younger thus came as a shock to foreign leaders familiar with Bush the Elder’s and Clinton’s (admittedly rather tepid) liberal internationalism. Already in 2002, a career diplomat resigning over the Younger’s foreign policies, John Brady Giesing, ably summarized the changes taking place: “We are straining beyond its limits an international system we built with such toil and treasure, a web of laws, treaties, organizations, and shared values that sets limits to our foes far more effectively than it ever constrained America’s ability to defend its interests.” Paul Brietzke, September 11 and American Law (forthcoming) [hereinafter September 11] (quoting Geising). In rapid succession, the current Bush Administration repudiated the Kyoto Global Warming Treaty, the Nuclear Test-Ban Treaty, and U.S. participation in the International Criminal Court; coercive ‘agreements’ were subsequently wrung from a number of minor players, to keep U.S. citizens out of this Court. The U.S. even managed to lose its perennial seat on the U.N. Human Rights Commission, and the invasive U.S.A. PATRIOT Act gave the U.S. a bad name among human rights advocates because, e.g., it encouraged rights abusers. Common “anti-terrorism” cause was made with dictators in Pakistan, Saudi Arabia, Egypt, and more reliable allies in “old” Europe were ignored. Zbigniew Brzezinski attributes such strange policies to a blind fear that periodically verges on panic. Wright, infra note 102 (quoting Brzezinski). See AMY CHUA, WORLD ON FIRE 8-9 (2003); Paul Brietzke, September 11; Ellen Goodman, A Post-Bush Mind Set, WASHINGTON POST, Oct. 30, 2004, A19. Having re-invented the doctrine of pre-emption as a kind of anticipatory retaliation, Bush marketed Iraqi War II as if it were a soft drink or toothpaste, adopting “Orwellian flourishes:” “in order to be relevant,” the U.N. Security Council (that was awaiting reports on weapons of mass destruction that turned out to not be in Iraq) “must become irrelevant” by allowing “the U.S. to evaluate … risk and respond in its sole discretion.” Michael Kinsley, By Whose Authority, WASHINGTON POST, Mar. 21, 2003, A37. See Guehenno, at 90; Lazare, supra note 20-1, at 36. Bush added fuel to foreigners’ fires over detention and torture at Guantanamo and Abu Ghraib. Bush shocked even his cynical critics by appointing (without Senate consent) the abrasive John Bolton as U.N. Ambassador because, apparently, Secretary of State Rice did not want him as her Deputy. Bolton is a darling of the neoconservatives who would dissolve the U.N. or, at the least, force Kofi Annan’s resignation, and whose influence over foreign policy is an increasingly permanent factor in the U.S. Bolton

government. The U.S. uses radically offensive game-moves (supra): Bush feels unable to wait until the next terrorist attack, for example, so he is trying to change international law and politics (ultimately the “game rules”) to enhance U.S. national security. But Bush now tries to reach out to a world dismayed by the foreign policy choices of his first term: in a conciliatory, more multilateral, speech to the September 2005 U.N. World Summit, for example. An inability to understand this global dismay is typified by William Smullen: “It is clear that the American brand has been badly damaged. {As if I’m selling toothpaste,} I’m not suggesting we have to change our policy.”36 Earlier, the Security Council’s “no” on supporting his Iraqi War II was a moment of defiance, relevance, and global significance that soon collapsed nonetheless, under concentrated U.S. pressure. In sum, Bush’s bungling comes close to Nixon’s 35 year-old nightmare, of turning the U.S. into a “pitiful, helpless giant”—unable to subdue a rag-tag Iraqi insurgency which has no major external sources of support.37 Intellectually-bankrupt tactics seem to involve driving led the U.S. repudiation of several treaties, alienated North Korea (an easy thing to do, perhaps) and opposes EU efforts to curb Iran’s nuclear ambitions. He calls the U.N. a “rusting hulk”, opposes its peacekeeping and humanitarian missions, and denies that the U.S. has a legal obligation to pay U.N. dues. Bush nominated another neoconservative icon, Paul Wolfowitz, as the new World Bank President. Diplomat and a senior Defense Department official, Wolfowitz is a major architect of Iraqi War II. Glenn Kessler & Colum Lynch, Critic of U.N. Named Envoy, WASHINGTON POST, Mar. 8, 2005, A1; Charles Lane, Mexicans on Death Row Get Hearings, WASHINGTON POST, Mar. 8, 2005, A2; Lane, U.S. Quits Pact Used in Capital Cases, WASHINGTON POST, Mar. 10, 2005, A1; Colum Lynch, U.S. Drops Abortion Issue at U.N. Conference, WASHINGTON POST, Mar. 5, 2005, A13; Brian McNamara, Letter to the Editor, WASHINGTON POST, Mar. 13, 2005, B6 (by a retired U.S. consular official); Susan Rice, Tough Love or Tough Luck, WASHINGTON POST, Mar. 8, 2005, A15; Ian Williams, Real U.N. Reform, THE NATION, Dec. 27, 2004, 6; The View From Abroad, THE ECONOMIST, Feb. 19, 2005, 24 (a Special Report on Anti-Americanism). But see Condi’s Challenge (“there are signs that the administration is beginning to count the costs of its first-term policy.”). Neoconservatives see Europeans as “a bunch of duplicitous, atheistic wimps, whose moral laxity is leading them to an inevitable and richly deserved doom.” The European Dreamers, THE ECONOMIST, Dec. 18, 2004, 78. In sum, the Bush Administration continues to fuel nationalist claims hostile to U.S. interests, and repudiates or ignores key international law principles. But with some justification, neoconservatives take credit for democracy in the Middle East. 36 Glenn Kessler & Robin Wright, Report: U.S. Image in Bad Shape—Hughes Set to Begin Public Diplomacy, WASHINGTON POST, Sept. 24, 2005, A16. 37 Anatol Lieven, Liberal Hawk Down, THE NATION, Oct. 25, 2004, 29, at 34. See European Dreamers, supra note 35 (the younger Bush Administration is globally seen as having “feet of mud”, literally in New Orleans and figuratively in the Iraqi quagmire); id. (quoting former British Minister Clare Shore) (U.N. reforms are difficult when “the world’s hegemonic power has set aside international law and declared that it will act unilaterally whenever its interests are suited.”); Thalif Deen, Despite Strictures, U.N. Chief Refuses to Yield, I.P.S., Sept. 14, 2005, 1511 GMT (all InterPress Service News Agency, IPS, dispatches are read off <ips.com>); David Ignatius, They’re Not Going to Like Us, WASHINGTON POST, Sept. 23, 2005, A23 (wanting to be loved, Americans assume our deep unpopularity is a “communications problem” to be treated by e.g., appointing Karen Hughes or perhaps sending more troops to Iraq); Glenn Kessler, This Year, Bush Takes a Different Tone With the U.N., WASHINGTON POST, Sept. 15, 2005, A08; U.N. Set Out to Institute Bold Reforms but Ended Up With Feeble Tweaks, HOUSTON CHRONICLE, Sept. 15, 2005, 8:07 PM (read off <houstonchronicle.com>) (Bush’s conciliatory Sept. 2005 speech contrasted sharply with his statement three years earlier, that the U.S. would wage war in Iraq whether or not the Security Council approved).

lightly-armored U.S. vehicles down Iraqi roads—to see who shoots or has planted explosives. Putin’s Russia similarly tends toward a rogue state.38 His purported emulation of Bush’s “democracy” and “rule of law” are now muted by a desire to squeeze out any political opposition, to claw back powers Yeltsin devolved to the regions, and to control the media more tightly. The Economist sees traces of a Leninism in this: “Russian foreign policy is still warped by the phantom pain of its lost empire. The government still has too little regard for private property, too often shows a reflexive distrust of business {having repeatedly snubbed lax IMF and World Bank policies concerning Russia}, and has an inflated idea of the state’s proper role in the economy—as recent developments in Russia’s energy sector demonstrate….”39

Many E.U. and U.N. officials are appalled by U.S. and Russian behavior, and a few commentators see Ukraine as the kick off in a new Cold War.40 Many minor players 38 Outsiders understand little about Russia: e.g., having exaggerated the extent to which Yeltsin established liberal democracy, they exaggerate the extent of Putin’s backpeddling towards authoritarianism. Admittedly, he has fought a brutal, human-rights-abusing war against nationalists in Chechniya (a separatist province), justifying this as a move against “terrorism”—the same justification Bush uses in Iraq. Russia’s political meddling in Belarus, Georgia, Moldova, Abkashia (a province in Georgia), and Trans-Dniester (a separatist region of Moldova) will almost certainly continue. But the ex-Soviet Muslim “-stans” are slowly drifting out of the Russian orbit while adopting a variety of anti-democratic practices, the Baltic countries are already in NATO, and the Transcaucasian region is unstable and bloody—because local rulers pursue ethnic nationalism claims. Rachel Denber, Beyond Ukraine, THE INT. HERALD TRIB., Dec. 28, 2004 (reprinted at <hrw.org/English/docs/2004.12/29/uzbeki 9941.htm>); Jackson Diehl, Russia’s Unchecked Ambitions, WASHINGTON POST, Dec. 8, 2004, A21; Peter Finn, Krygystan Opposition Routed at Polls, Process Faulted, WASHINGTON POST, Mar. 15, 2005, A`7; Charles Krauthammer, Why Only in Ukraine?, WASHINGTON PO ST, Dec. 3, 2004, A27; Michael McFaul, Reform and Retreat, WASHINGTON POST, Feb. 6, 2005, BW8; Bleak House, THE ECONOMIST, Jan. 15, 2005, 80; An Empire’s Fraying Edge, THE ECONOMIST, Feb. 12, 2005, 21; Vladimir III, THE ECONOMIST, Dec. 11, 2004, 46. 39 Bury Lenin, THE ECONOMIST, Oct. 8, 2005, 12. See note 96, infra; Jim Hoagland, Can Russia Stem This Tide?, WASHINGTON POST, Oct. 13, 2005, A23; Andrew Osborn & Anne Penketh, Putin Boasts of Russian Power at E.U. Summit, THE INDEPENDENT, Oct. 5, 2005 (all INDEPENDENT articles read online at <Independent.com>); Beyond Siberia, THE ECONOMIST, Sept. 3, 2005, 45. 40 Outsiders understand little about Russia: e.g., having exaggerated the extent to which Yeltsin established liberal democracy, they exaggerate the extent of Putin’s backpeddling towards authoritarianism. Admittedly, he has fought a brutal, human-rights-abusing war against nationalists in Chechniya (a separatist province), justifying this as a move against “terrorism”—the same justification Bush uses in Iraq. Russia’s political meddling in Belorus, Georgia, Moldova, Abkashia (a province in Georgia), and Trans-Dniester (a separatist region of Moldova) will almost certainly continue. But the ex-Soviet Muslim “-stans” are slowly drifting out of the Russian orbit while adopting a variety of anti-democratic practices, the Baltic countries are already in NATO, and the Transcaucasian region is unstable and bloody—because local rulers pursue ethnic nationalism claims. Russia represses a militant Islam in the Caucasus in coherent ways which alienate a hitherto supportive population; Sharia is seen as a superior alternative to Russian lawlessness. Rachel Denber, Beyond Ukraine, THE INT. HERALD TRIB., Dec. 28, 2004 (reprinted at <hrw.org/English/docs/2004.12/29/uzbeki 9941.htm>); Jackson Diehl, Russia’s Unchecked Ambitions, WASHINGTON POST, Dec. 8, 2004, A21; Peter Finn, Krygystan Opposition Routed at Polls, Process Faulted, WASHINGTON POST, Mar. 15, 2005, A`7; Charles Krauthammer, Why Only in Ukraine?, WASHINGTON PO ST, Dec. 3, 2004, A27; Michael McFaul,

are seeking cover because they fear the onset of disasters and reallocations of power that the disruptions in an ‘advanced poker’ game make more likely. Such disruptions in a governance without government game are also disruptions in relatively settled political and economic expectations. Self-fulfilling prophecies of a lack of cooperation can lead to a potentially dangerous level of instability, and to even greater uncertainty and complexity. But the poker games have been running within consensus borders since the end of World War II, and most nation-states have developed buffers against threatened international instabilities. These buffers may prove effective for a long enough period—until Bush and perhaps Putin leave office, for example. The Chinese seem faintly bemused by Bush’s and Putin’s carryings-on, while positioning themselves to take advantage of any future chaos. China is increasingly projecting itself as a global power, spending a great deal on a leaner, meaner, more technologically-adept military. For example, a Chinese-Russian joint military exercise, Peace 2005, was a classical battle set-piece, with Russia using the modern equipment China lacks—perhaps to awe the Chinese and to make U.S. dominance in the region seem even more tenuous. A very good poker player, China cozies up to (an anxious) Russia and Central Asian states; the U.S. schmoozes India and tries to persuade Japan to become more assertive towards China and Russia. Its insatiable quest for oil and gas has China competing with India and dealing with countries blacklisted by the U.S. as troublesome: Myanmar, Sudan, and Iran for example. Persistent U.S. complaints about Chinese human rights violations, about inadequate protections of intellectual property, and about overvaluing its currency (yuan) to boost exports (using much of the proceeds to, it should be noted, buy the U.S. Treasury liabilities that finance huge U.S. deficits) have been met only with lukewarm ‘cosmetic’ Chinese responses. Notwithstanding China’s continuing economic boom, some commentators see China’s “socialist” (or “planned”— although its 11th Five-Year Plan is called a “blueprint”) market economy as the ultimate contradiction in terms. A consumer choice without political choice is believed to spawn corruption, cronyism, and a growth in the number and scale of public protests. In any event, this “harmonious society” (the new buzzword in China) is under threat from a galloping inequality in the distribution of wealth.41

Reform and Retreat, WASHINGTON POST, Feb. 6, 2005, BW8; Kim Murphy, Rebellion Creeping Through Caucasus, L.A. TIMES, Oct. 23, 2005; Bleak House, THE ECONOMIST, Jan. 15, 2005, 80; An Empire’s Fraying Edge, THE ECONOMIST, Feb. 12, 2005, 21; Vladimir III, THE ECONOMIST, Dec. 11, 2004, 46. 41 Antoneta Bezlova, Great Leap to Help Rural China, I.P.S., Oct. 14, 2005, 0417 GMT; Paul Blustein, U.S. Urges IMF Crackdown on {Chinese} Currency, WASHINGTON POST, Sept. 24, 2005, D1; Dieter Farwick, China is Flexing Its Military Might, WORLD SECURITY NET NEWSLETTER, Sept. 21, 2005 (read of <newsletter@worldsecuritynetwork.com>); Niall Ferguson, The Man-Eater of Asia’s Tigers, L.A. TIMES, Oct. 3, 2005; The Cauldron Boils, THE ECONOMIST, Oct. 1, 2005, 38; The Dragon Comes Calling, THE ECONOMIST, Sept. 3, 2005, 24. Peter Goodwin, China’s Transformation, WASHINGTON POST, Nov. 4, 2005, 10 AM (China’s economy will stumble at some point given “rickety” banking, water and energy shortages, social instability, the wastage of capital and “white elephants”); see note 137 infra (in a statement presumably calculated by Government, a Chinese General threatened to “nuke” hundreds of U.S. cities, if the U.S. intervened over Taiwan); id. (a 1998 Chinese Army publication recognizes the impressibility of challenging the U.S. on its own terms, so the solution is to subvert banks, stock markets, and defense contractors; flood the U.S. with drugs; seize natural resources overseas; paralyze U.S. phones, media, and traffic; and use psychological warfare); id. (China’s regular “deliberate ambiguity” is something

The E.U. attempts to achieve a common foreign policy and international law reform policy, with (only) a modest degree of success. THE ECONOMIST goes too far in playing down the E.U.’s role in international relations and law by likening it to the role of a Greek chorus (rather than a disorganized cacophony): commenting, reacting with horror or praise, but playing no part in the action.42 Bush is seen as this play’s tragic protagonist, “hurrying to his doom and reckless of the consequences of his actions.”43 Some neoconservative Americans return the favor, seeing E.U. members as too disorganized, “cowardly, cynical and decadent to support America’s courageous and idealistic mission….”44 Admittedly, France is often prickly and seeks to dominate consensus, Blair’s Britain is often the outsider of Europe—trying to play poker like Bush, Europe’s ideological wounds are slow to heal, and the failure of the new E.U. Constitution in two referenda exposes a legitimation crisis within Europe. In addition to hiving off Britain, Bush managed to divide the E.U. further over Iraq: Italy, Poland and (temporarily) Spain came over to Bush’s “coalition of the willing.” Despite such disunity on some issues, the E.U. was one of the few parties that backed the World Summit draft document as a whole. In comparison, the U.S. proposed 700 amendments to this draft, while Russia, Cuba, Pakistan, Algeria, Iran and others also sought extensive changes.45

the Pentagon is not set up to address); Bezlova (the Chinese Public Security Ministry admitted 74,000 “serious” protests in 2004, involving 3.7 million people—up from 50,000 protests in 2003); id. (in 2005, to Oct., 23 policemen were killed during “riots” and 1,826 injured); Edward Cody, China Will Pursue Reforms and Focus on Poverty, WASHINGTON POST, Oct. 11, 2005 (with no reference to growing protests, a communiqué stated—“We have to solve the contradictions of the people”, “their most crucial, direct and unrealistic problems”); id. (no countervailing power such as an independent court system will be tolerated, and “the most important thing is to strengthen the ability and liberty of the party.”); Shasha Trudeau, The Red China of Two Naïve Guys, TORONTO STAR, Oct. 16, 2005, 8:19 AM (all STAR articles are read off <thestar.com>) (quoting Shao Ming) “China used to be only one color—red,” but not it “is many colours”); The Dragon, at 25 (Chinese leader Hu will ask Bush to treat China as a “market economy” —thus making the application of U.S> anti-dumping measures more difficult—but the request is unlikely to be granted). 42 Europe’s Cassandra Complex, THE ECONOMIST, Oct. 29, 2005, 54 (citing Bob Kagan). Like the E.U., a Greek chorus often supports the “law”—as in Sophocles’s Antigone, id. 43 Id. 44 Lieven, supra note 37, at 34. 45 See note ___ infra (emphasis supplied). See Stefania Bianchi, Amid Budget Spat, E.U. Searches for the Big Picture, I.P.S., Oct. 28, 2005, 0035 GMT; id. (quoting Alasdair Murray) (all EU countries face similar challenges to their social models—aging populations, low-wage competition from Asia and high unemployment in some areas); id. (we must reach a policy consensus before attempting other reforms); Stefania Bianchi, U.N. Summit Being Written Off Already, I.P.S., Sept. 21, 2005, 0323 GMT (Luis Morago, head of Oxform, Brussels urges European leaders to go further on poverty reduction and arms control); Stephen Castle, China Says Brussels Does Not Care About Job Losses in Assault on Economic Policy, THE INDEPENDENT, Oct. 7, 2005, 18:15 (Chirac stresses the need for an E.U. united front on globalization in “classic Chirac: defining Europe and France as the same thing.”); Romulo, supra note 16; Annan Says, supra note 25; To Doha’s Rescue, THE ECONOMIST, Oct. 15, 2005, 13 (Peter Mandelson, the European commissioner for trade, “needs approval from national governments if he is to go as far as his American counterpart”); Similarly the negotiating points of the U.S. must be confirmed by congressional enactment.

The European Commission calls the U.N.’s Millennium Development Goals (MDGs, infra) “the core” of E.U. development policy, the “new … consensus” of “a global player.”46 A nongovernmental organization (NGO) official notes that the E.U. claims “moral leadership over MDGs”, in what we might call an important “bet” in a major poker game, but E.U. countries must “deliver on their promises” through collective action—to be “credible.”47 Arguably, E.U. performance during the Doha Round of WTO negotiations (infra) saps its credibility. A Deputy Secretary-General who recently resigned, the Canadian Louise Frechette, calls the U.N. the complex center of just about everything since the end of the Cold War, of high ambitions and often higher expectations. Outcomes have been both “notable successes and [the] shattering failures” that rarely stem from the U.N. simply walking away from a problem.48 As adaptable, evolving reflections of the world, the members of the U.N. “family” (which includes international conferences even) have an international legal personality (without approximating the organs of a world government), can participate in international relations independent of their member nation-states, and can create an independent customary international law. But like the E.U., the U.N. is a major player only when adequate power and resources are delegated by members, after the requisite consensus is mustered. Then, the U.N. can build its own distinctive power: the ability to legitimate or delegitimate political, social, economic, and even military actions. Lawyers as lawyers like poker games organized around this legitimation rubric because, among other things, rules of international law are often created during the course of play. Some argue that such games serve to conceal processes of domination, however—including those ostensibly operating through “markets”, another game rubric thought legitimate by the U.S., increasingly by China,

On the EU as a major player, see Morton Abrahamowitz and Heather Hurlbut, Where to Start With Europe, WASHINGTON POST, Jan. 9, 2005, BW5 (reviewing TIMOTHY GORTON ASH, AMERICA, EUROPE, AND THE SURPRISING FUTURE OF THE WEST, and T.R. REID, THE UNITED STATES OF EUROPE) (the residual affectation, resilient interdependence, and furious passion of the trans-Atlantic relationship); id. (the Europeans’ “bickering and boredom: and anxiety over “feeling dwarfed by the U.S. hyperpuissance.”) id. (Ash shows how disunity is “one of the things we in the West have in common.”); id. (Ash shows how “building a future in defiance of the other—the Soviet Union in the past, America today, perhaps in Islam or China tomorrow—is neither sustainable nor ennobling.”); Editorial: Backward in China, WASHINGTON POST, Dec. 20, 2004, A22. 46 #72 [????] [emphasis supplied). 47 Olivia Ward, Frechette’s U.N. Challenge, TORONTO STAR, Sept. 24, 2005, 8:13 A.M. See notes __ and accompanying text (E.U.’s behavior over the Doha Round of WTO negotiations). 48 JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, 1 CUSTOMARY INTERNATIONAL HUMANITARIAN LAW: RULES, Introduction, xxv, xxxv (2005); Brietzke, supra note 7; Tony Evans, International Human Rights as Power/Knowledge, 27 H. RT. Q. 1046, 1054-56 (2005); See notes 5, 17, 26, 51 (quoting Annan). But see note 26, supra: in a 2003 Poll, the U.N.’s “standing” declined in the 20 countries polled, in the U.S. because the U.N. didn’t sanction Iraqi War II and in the 19 others because it couldn’t prevent it.

and tolerated by many developing countries as a necessary evil under strictures imposed by the WTO, the IMF, the World Bank, etc.49

A major function of the U.N. is the collective empowerment of the relatively powerless (i.e., the U.N. sometimes plays poker hands as a major acting on behalf of minor players), by offering a forum where minors’ concerns and arguments can be aired, and a solution to some collective action problems. This can be seen in a U.N. representation of the sometimes-diffuse interests of the 118-member Non-Aligned Movement, more powerful during the Cold War and currently led by Malaysia, India, and South Africa. This Movement is frequently ignored by widely-circulated media, as is an even less well-known Group of 77 (with 134 members) currently chaired by Jamaica and the Group of 24, formed in 1971 to unify developing countries’ positions on monetary policy and development finance. At the other end of the player spectrum, Bush’s neoconservative surrogates (Norm Coleman, Tom DeLay, and Henry Hyde, for example) created an existential crisis when they picked up Bush’s cudgels for use against another lame duck, Secretary-General Annan, over what amounts to an oil-for-food corruption sidebar (infra) to the World Summit. This crisis set two of the world’s most impressive “spin machines” into motion, and the forces of liberal internationalism prevailed over the neocons: China, Russia, 105 other states and the E.U., plus the NEW YORK TIMES, WASHINGTON POST, National Public Radio, and the BBC supported the “bold reformer” Annan as the best Secretary General since Dag Hammarskjold. (Some see this as rather faint praise.)50

Like fairies, paper money or perhaps the Soviet Union, the U.N. would cease to exist (at least as a major player) if people stopped believing in it. This seems the tactic attempted by U.S. neoconservatives, along with curbing funding for the U.N., but it is wildly unrealistic. The U.N. currently oversees 18 peacekeeping operations, using 8,000 troops. Would the U.S. want to pay for and pacify these problematic hot spots by itself?51 Rather, shouldn’t the U.S. want to reform U.N. institutions so as to strengthen them for this purpose, out of a national self-interest—so that the U.S. can concentrate on playing poker games with greater pay-offs? But this was not to be. Accurately forecasting the outcome from the September 2005 World Summit, Samantha Powers notes that the “U.N.’s imperfections were manifest from its creation,” as “built upon …

49 5; Commentary: United Nations to the Rescue (of Itself), CHRISTIAN SCIENCE MONITOR, Sept. 15, 2005 (U.N. “power lies in getting norms of behavior and then using a major voice to persuade or shame norm-breakers to follow suit.”); and infra notes 106 and 107. Ronald Saunders, Small States Need a Stronger U.N., CARIBBEAN NET NEWS, Sept. 27, 2005; Martin Walker, Bush v. Annan: Taming the United States, 22 (5) WORLD POL’Y J. (Spring 2005) (read off <worldpolicy.com>). 50 Simon Chesterman, Duty Pulls Annan in Two Directions, INT. HERALD TRIB., Sept. 9, 2005; Thalif Deen, Post-Summit Dilemma of Promises and Delivery, I.P.S., Sept. 27, 2005; Sebastian Mallaby, Bush’s Missed U.N. Opportunity, WASHINGTON POST, Sept. 12, 2005, A19; Schlesinger, supra note 35. See Ward, Frechette, supra note 47 (the U.N. is looked upon as a necessary, and often most competent partner—for players major and minor); notes ___ and accompanying text, infra (corruption sidebar). 51 See Samantha Power, To Save the World From Hell, LE MONDE DIPLOMATIQUE, Sept. 2005. See id.: 60 years ago, Henry Cabot Lodge, Jr. said that the U.N. won’t “bring us to heaven”, but it might “save us from hell.”

obvious contradictions …. Whatever they can agree upon {at the Summit} is sure to be disappointing and will be derided.”52

SUMMITRY

For the U.N., “success never seems to resonate as much as failure”: disasters in Bosnia, Rwanda, and Somalia53; the U.S. circumventing collective (Security Council) action over Iraqi War II; sexual abuse by U.N. troops in the Congo and elsewhere; and corruption in the oil-for-food program (sidebar, infra). The U.N. might be thought ineffective because we still face war, injustice, and poverty, yet we avoided World War III (so far, in no small measure because of the international law rules governing the parties’ poker games), and more people now live in countries where freedoms are protected to some extent by law. The U.N. has run elections in 90 countries and peacekeeping operations in 60, helped resolve 170 regional conflicts, and assisted in the decolonization of 80 countries. Such activities are the primary cause for a 40% decline in armed conflicts since the end of the Cold War. The U.N. imposes sanctions on member-miscreants, and sets up international criminal tribunals and then convinces members to turn over potential defendants. The High Commission for Refugees aided 50 million refugees from war, famine or persecution; the International Atomic Energy Agency (winner of the 2005 Nobel Peace Prize) searches for W.M.D. and created security measures for 100 nuclear facilities in 70 countries; and the World Health Organization wiped out smallpox and markedly reduced polio.54 Past reform efforts were spurred by the vision and political will of the leaders of particular nation-states, often after a war. The current round of reform turns this process on its head, by trying to create political will internally—to make the U.N. more effective. The fear is that “under performing” U.N. institutions—some see a U.N. system failure, a series of market (-like) failures in the provision of public goods like peace and development—will otherwise be unable to meet new threats and opportunities.55 In

52 Id. 53 Editorial: Short-Lived Celebration, L.A. TIMES, Oct. 10, 2005. 54 Chesterman, supra note 50; Kathryn Horvat & Pat Shea, The U.N.: 60 Years and Still Counting, SALT LAKE TRIB., Oct. 22, 2005 (read off <sltrib.com>); Edith Lederer, Global Violence Has Decreased, U.N. Says, WASHINGTON POST/ASSOC. P., Oct. 18, 2005, 9:12 A.M.; Shashi Tharoor, In Order to Redeem, the United Nations Must Be Redeemed, THE (Lebanon) DAILY STAR Sept. 15, 2005; Editorial: U.N. is Faced With New Challenges, PEOPLE’S DAILY ONLINE, Oct. 24, 2005; U.N. Set, supra note 37. But see Michael Glennon, Idealism That Won’t Work (2005) (S.S.R.N. Pap. No. ___) (medicrease in violence “might have been the result of … growing economic integration, stronger alliances, military deterrence, more influential N.G.O.s, the reportage of the mass media, or merely a transnational sense of horror over the barbarism of war.”); Juan Somovia, The Humanitarian Responsibilities of the U.N. Security Council (1996) (downloaded from <globalpolicy.com>) (“sanctions as currently-practiced produce large-scale human insecurity, the opposite of their intended effect.”). 55 Kofi Annan, Secretary-General Urges Reform Process Forward, Speech to the World Summit, Sept. 15, 2005, SG/SM/10090/Rev.1*, GA/10380/Rev.1.

preparation, Secretary-General Annan named a Panel of High-Level Experts, to report on issues of peace and security56, while economists led by Jeffrey Sachs considered how the commitments made at the 2000 Millennium Summit could best be implemented.57 In March 2005, Annan synthesized their key recommendations in his manifesto, In Larger Freedom.58 The Secretary General deliberately set an ambitious and tightly-packaged agenda, given the watering-down and fragmentation that inevitably results from negotiations (poker games played) over this agenda. Pakistan, which merits some of the blame for eventual reform failures, feared that so ‘heavy’ an agenda would lead to collapse, leaving the Summit with no tangible result.59 (This didn’t happen, of course: poker and especially ‘advanced poker’ rules are designed to avoid collapse/no-result at almost any cost.) Many echo Annan over an essential interrelatedness of the development, security (including the suppression of terrorism), and respect for human rights, all to be achieved through U.N. reforms. But the U.S., Russia to a lesser extent, and a relatively few minor players persisted in pulling at any snag or frayed edge that emerged when Annan’s proposals were put under negotiating stress. In effect, these players chose to play many separate poker games—not of the ‘advanced’ variety—for narrow, short-term, and sometimes-misperceived gains. A U.N. culture of inaction absent consensus enabled these players to shape non-reform outcomes, as the economists’ “holdouts” —veto groups whose existence is made possible by the extraordinarily high “transaction costs” of U.N. reform. Annan’s hope for an idealized, grand social contract (or a single, idealized ‘advanced poker’ game) were dashed—developed countries genuinely working to alleviate Third World poverty, in exchange for developing countries’ support for the reforms developed countries sought. But Annan was careful not to challenge the permanent members of the Security Council—those with a veto or, roughly, what are called the major poker players here—since their power and consensus is essential to any successful reform. 60 Had the U.S. stood with the other majors, would it have been

56 See Jean-Maria Guehenno, Letter to the Editor, N.Y. TIMES (Oct. 29, 2005) (the U.N. under Secretary for Peacekeeping) (the U.N. investigated 221 peacekeepers over sexual abuse in the Congo, repatriated 88 soldiers … so some of whom are being prosecuted in their home country … fired 10 civilians). Tharoor, supra note 54. 57 JEFFREY SACHS, INVESTING IN DEVELOPMENT: A PRACTICAL PLAN TO ACHIEVE THE MILLENNIUM (2004). 58 <un.org/largerfreedom> (UNDP). 59 Brown, supra note 15; Colum Lynch & Glenn Keasler, U.N. Scales Back Plan of Action, WASHINGTON POST, Sept. 14, 2005, A6; Schlesinger, supra note 35; David Usborne #61. 60 #51; Edith M. Lederer, Leaders Fall Short on Larger Goals in Effort to Fight Poverty, Terrorism at U.N. Summit, ASSOCIATED PRESS, 9/17/05; Monique Chemillier-Gendreau, The Alternative U.N., LE MONDE DIPLOMATIQUE, Sept. 2005. The holdouts “spoiler countries” variously include the U.S., Russia, Myanmar, Turkemenistan, Belarus, India, Vietnam, Syria, Venezuela, Cuba, Pakistan, Egypt, and Iran. #5; Nick Wadhams, General Assembly OKs Compromise Document, AP, Sept. 13, 2005. The people deserve better than this disingenuous horse trading; there is no evidence of the political will to stop, e.g., another Rwanda, id. See note ___ and text accompanying, infra (some effects of the holdouts).

possible to isolate Russia and eliminate (through a broad range of coercions) the minor-player holdouts? The logic of poker suggests “yes.” The Summit, “the 900 pound gorilla, … the largest in history,” occurred when about 170 nation-state leaders gathered for a “once-in-a-generation” opportunity for U.N. reform61, in New York during September 2005. Mark Malloch Brown says that, on the morning the Summit opened, negotiations were “heading off the rails”, with 140 passages and 27 issues still left undecided.62 Annan and the incoming and outgoing General Assembly Presidents took “a high-risk gamble”: deleted contentious matters from the draft Summit outcome, adopted alternative language they thought could win approval, and submitted a “clean” copy to members—who then adopted it quickly.63 Everyone had to “compromise”64, something our ‘advanced poker’ model predicts, as it does the narrow limitations on such compromises—composed as they are of diverse national interests and desires to “win.” In any event, Annan’s proposals were criticized for ignoring the complexities of global society, and for the impossibility of reform where the major powers refuse to give up their prerogatives. Secretary-General Annan did much to open up U.N. processes to nongovernmental organizations (NGOs, including corporations, as “stakeholders” in a civil society), arguably to open up and solidify ‘advanced poker’ as the dominant game. But NGOs strongly objected to a lack of control over the Summit agenda, and the lack of access to closed-door negotiations among nation-states. In contrast, the Helsinki Summit and the (Bill) Clinton Global Initiative, held just before and just after the U.N. Summit respectively, made room for NGO participation in the “intense dialogue” no longer possible at the U.N. “because of highly ritualistic structures, protocol and conflict avoidance.”65 The “multi-stakeholder” Helsinki process will go forward under two NGOs, the Celso Furtado Centre in Sao Paolo, Brazil, and the Brookings Institution in Washington.66 61 Olivia Ward, U.N. Faces the Fight of its Life, TORONTO STAR, Sept. 12, 2005, 1:00 A.M. 62 Edith Lederer, U.N. Summit Leaders to Adopt Weak Document, SEATTLE POST INTELLIGENCER, Sept. 15, 2005 (read off <seattlepi.com>). 63 Id. 64 Id. 65 Glenn Kessler, Clinton Gathers World Leaders, WASHINGTON POST, Sept. 16, 2005, A2 (quoting Richard Holbrook, U.N. Ambassador under Clinton). See Sanjay Suri, Development: NGOs Talk, Governments Listen, IPS, Sept. 7, 2005, 02:05 GMT; Monique Chemillier-Gendreau, The Alternative U.N., LE MONDE DIPLOMATIQUE, Sept. 2005; 117, supra note __, 134; (Clinton reportedly wanted to be Secretary General, and is skilled at “building bridges”); Coate, supra note 1; Maggie Farley, U.N. Reform Bid Exposes its Woes, L.A. TIMES, Sept. 14, 2005; Sanjay Suri, NGOs Talk, Governments Listen, I.P.S., Sept. 6, 2005 (70 governments and 600 NGOs at Helsinki). 66 Sanjay Suri, Development: Straight Talk Expected at Post-Helsinki Roundtables, I.P.S., Sept. 14, 2005; Goday, supra note 66. [?????}

NGO officials also came up with specific criticisms of Summit outcomes: e.g., “We wanted a bold agenda to tackle poverty but instead we have a brochure showcasing past commitments” and omitting, e.g., women’s rights issues.67 Only democratic, “comprehensive, radical and transparent reform of the U.N. will enable this system to fulfill its historical role….”68 The “watered-down” language of the “cleverly-crafted” Summit outcome document shows the U.N. becoming “the biggest talk—but not act—shop in the world.”69 The Mauritius Ambassador speaks of a “least common denominator” Summit outcome document70 which, according to a political science professor, will not move the world toward promoting human security.71 There was a leadership vacuum, which is what the poker analogy would lead us to expect. Clare Short finds “depression and mistrust”72, which we might see as attitudes making ‘advanced poker’ less likely. According to Mary Robinson, the U.N. “had its bluff called….”73 Venezuela’s Foreign Minister objected to the “anti-democratic” negotiation process, and especially to having to approve the outcome document before it was translated into Spanish.74 But the elliptical ECONOMIST finds the document “not wholly devoid of substance.”75

67 Edith M. Lederer, Annan Appeals to World Leaders at Summit, WASHINGTON POST, Sept. 14, 2005 (quoting Oxfam’s Nicola Reindorp). See #38; notes ___ and accompanying text, infra (MDGs). Oxfam’s 4,000 partner organizations in 70 countries promote dignity and development. Juan Somavia, The Humanitarian Responsibilities of the U.N. Security Council (downloaded from <globalpolicy.org>). 68 Elisa Marincola, Summit Ignores People’s U.N., IPS, Sept. 16, 2005 (quoting Antonio Papisca of the University of Padua’s Centre for Human Rights). See Haider Rizvi, Anger at Washington Simmers on Eve of U.N. Meet, IPS, Sept. 1, 2005. 69 Thalia Deen, March Toward MDGs Leaving Millions Behind, IPS, Sept. 16, 2005 (quoting Saradha Iyer, of Malaysia’s Third World Network). See Ward, supra note 47 (document is “heavy on rhetoric and light on substance.” 70 #61 (quoting the Ambassador). See id. (quoting Mark Malloch Brown): “we always knew we wouldn’t get the full loaf. We’ve got to start counting slices.” 71 Coate, supra note 1. 72 Clare Short: Depression and Mistrust Prevail at the U.N., THE INDEPENDENT ONLINE, Sept. 15, 2005 (quoting former British Minister Short). See Mary Robinson, A New Way of Doing the World’s Business, INT. HERALD TRIB., Sept. 25, 2005 (a leadership vacuum deprived the summit of “backbone”). 73 Id. 74 Edith Lederer, Leaders Fall Short of Larger Goals in Effort to Fight Poverty, Terrorism at the U.N. Summit, AP, Sept. 17, 2005 (read off <ABC.com>) (quoting Minister Rodriguez). 75 Better Than Nothing, THE ECONOMIST, Sept. 17, 2005, 33. See Thalif Dean, supra note 69 (quoting Jamaica’s Foreign Minister Knight, speaking for the Group of 77) (the Summit outcome at best “a bag of mixed results”); George Mitchell, Don’t Write Off U.N. Reform Just Yet, INT. HERALD TRIB., Oct. 11, 2005 (document “papered over many differences and skirted other issues”, but it “establishes a starting point” and a consensus is building); Nahal Toosi, Annan Depends Summit’s Accomplishments, Agrees Some Results Were Nixed, A.P. NEWSDAY, Oct. 17, 2005, 3:15 EDT (while the absence of progress on non-proliferation a “disgrace”, administrative reforms were nixed, the Millennium Development Goals were “endorsed”, and the peacebuilding commission is a valuable creation).

American neoconservatives are even more critical: e.g., Brett Schaefer sees the Summit as another step on the path towards U.N. irrelevance, inefficiency, and more low-priority, costly mandates.76 John Yoo agrees with this characterization, but goes on to argue that the U.N. reforms will markedly increase transaction costs—thus reducing the U.N.’s ability to solve collective action problems.77 For Nicholas Kristof, the Summit was history’s biggest gathering of “hypocrites”, who “preen and boast”; along with the Italians and Japanese, “Americans set a dreadful example.”78

With some justification, much of the blame for reform failures is attributed to John Bolton, Bush’s recess appointment as U.N. Ambassador—because the (Republican-dominated) Senate refused to confirm him. (Some see Bush’s appointment as the abandonment of a bipartisan foreign policy.) The bull in the china shop who stalemated the Summit for most observers, Bolton was regarded by the U.S. neoconservatives as showing that the U.N. emperor has no clothes. At Bolton’s request, all references to the International Criminal Court and the Kyoto Protocol were deleted from the document. But he was unsuccessful at deleting all quantitative goals relating to the Millennium Development Initiative. Speaking at the Summit, Bush got to play “good cop” to Bolton’s “bad cop”, and the consensus was of a pleasant surprise over Bush’s more conciliatory “moral obligation” to go along with much of the outcome document.79 However, our poker analogy suggests that Bolton could not have had so significant an impact on the Summit without disruptions from the Russians and especially from the minor-player holdouts that, like the U.S., were grinding very different axes, trying to win short-term games for their own purposes and in distinctive ways.

76 Brett D. Schaefer, The U.N. Summit Document: At What Cost?, THE HERITAGE FOUNDATION, Sept. 21, 2005 (quoting the Heritage Foundation’s Schaefer). 77 Yoo, supra note 8. 78 Nicholas D. Kristof, Meet the Fakers, THE NEW YORK TIMES, Sept. 13, 2005. 79 Haider Rizvi, Anger at Washington Simmers on Eve of U.N. Meet, I.P.S., Sept. 14, 2005; Barbara Slavin, Bolton Dives Right in to Effort to Change U.N., USA TODAY, Sept. 12, 2005; Celia Dugger, U.N. vs. Poverty, N.Y. TIMES, Sept. 14, 2005; Maggie Farley & Warren Vieth, Bush, Annan Tout Role of the U.N., L.A. TIMES, Sept. 15, 2005; Better Than Nothing, supra note 75; U.N. Set Out, supra note 37. See Evelyn Leopold, Fears Grow of Meltdown at Ambitious U.N. Summit, REUTERS, Sept. 11, 2005 19:17:19 GMT (quoting David Schorr) (Bolton’s “overreaching by niggling over small stuff rather than shoring up the major items.”); Jonathan Beale, Strained Relations for U.S. & U.N., BBC News, Aug. 8, 2005, 0210 GMT (the man Bolton replaced at the U.N., Nicholas Burns, had worked hard and collaboratively); Klaus Brinkbaum & Greg Mascolo, The Gangs of New York, SPIEGEL ONLINE, Sept. 26, 2005 (Bolton downgraded “the final document to little more than a meaningless sketchpad of world politics.”); Thalif Deen, U.S.-U.N. Relations May be on a Collision Course, I.P.S., Aug. 5, 2005 (quoting James Paul Bolton is like an atheist appointed as ambassador to the Vatican); id. (“through threats and blackmail,” the U.S. tries to bend the U.N. to its will—without breaking it); Appendix, infra (the MDG quantitative goals that remained).

These reform and non-reform outcomes will be discussed under eight headings: the composition of, and voting arrangements in, the Security Council; U.N. powers of intervention and the new “responsibility to protect” against genocide and war crimes; terrorism, a central concern of the U.S. and the U.K.; a new Peacebuilding Commission, to help nations emerging from conflict; the non-proliferation of W.M.D., and of ordinary weapons as well; management and administration within the U.N.; human rights; and (non-) implementation of the Millennium Development Goals. How all of this will be paid for remains to be seen, of course; this is a topic of little interest to players totaling up their wins and losses at poker.80

The Security Council (S.C.) The S.C. will remain an unreformed “aristocratic” (undemocratic) yet rather “toothless” “executive” body, which suffers from a “credibility deficit.”81 For example, fears of a Chinese and/or Russian veto have so far stopped the S.C. from a needed and otherwise-feasible humanitarian intervention in Darfur, in Sudan. Many minor players are opposed to reform of the S.C., as conducive to marginalizing the General Assembly (G.A.)—in what is assumed to be a zero-sum (poker) game between them. More modest (transaction cost- reducing) reforms of the G.A., the minor-players’ bailiwick, were approved by the Summit—streamlining committee structures, speeding up deliberations, and rationalizing the G.A. agenda—despite an apparent preference among members of the G.A. for paralyzing, protracted debates. Poker analyses show why “democratizing” reforms to the S.C.—e.g., eliminating permanent membership and thus vetoes—went nowhere. (Even Bush/Bolton were uncharacteristically coy about this reform, perhaps because they knew it was doomed to failure).82 Permanent S.C. members are roughly coextensive with our major poker players, the E.U. getting two S.C. ‘half’-vetoes: Britain and/or France don’t always reflect interests of the E.U. as a whole. Denied a S.C. veto, one or more major players could rather easily find another way to wreck any disagreeable (to them) game created by many or most minor players through the G.A. The failure of many important G.A. (one state, one vote) resolutions attest to this power. Similarly, creating additional permanent

80 Main Divisive Issues Before World U.N. Summit, REUTERS ALERTNET, Sept. 5, 2005, 0531GMT. See Julio Godoy, ‘Summit Will Look for the Money’, IPS, Sept. 13, 2005 (examining proposals to raise global Tobin taxes on currency speculation, environmentally-hazardous activities, and corporate profits); note ___, supra (holdouts). The MDGs are listed in the Appendix. 81 See Chemillier-Gendreau, supra note 65 (S.C. has allowed conflicts to proliferate and intervened arbitrarily); Deen, Despite Strictures, supra note 37 (the S.C. fails to define its own parameters and responsibilities in, e.g., the Iraq oil-for-food program, and is inherently flawed by the lack of democracy—the vetoes of permanent members are a recipe for paralysis and failure). But see note ___ and accompanying text, infra. 82 Evelyn Leopold, Fears Grow of Meltdown at Ambitious U.N. Summit, REUTERS, Sept. 11, 2005, 19:17:19 GMT; Remarks by Louise G. Frechette, Deputy Secretary-General, United Nations, ABA Day at the UN, Mar. 29, 2005; 73, Chemimllier-Gendreau, supra note 65; Mallaby, supra note 34; Posner, supra note 8; Darfur’s Despair, THE ECONOMIST, Oct. 15, 2005, 47.

members, with or without a veto, is bound to fail de facto, since this would increase transaction costs and give middle-level players a (quasi-major-player) power they cannot currently win by playing games with the other majors. In any event, the other members were unable to choose two new permanents (a step recommended in Annan’s In Greater Freedom) from among the lobbying aspirants: Japan, India, Germany, Brazil, and South Africa (although the African Union wanted two permanent seats from Africa). Alternatively, Italy, Canada, Pakistan, Mexico, and 16 other countries proposed ten additional temporary (rotating) S.C. seats: this is a feasible increase in representativeness, but it would come at the price of significantly higher transaction costs in the S.C.’s production of public goods. In the end, no formal votes were taken on these reforms, and the Summit final document contained an anodyne “commitment” to make the S.C. “more broadly representative, more efficient and transparent.”83 But the debate over S.C. seats, what some describe as the Summit’s biggest failure—to deal with an issue which had been percolating for a decade, “sucked the oxygen from other issues and divided the member states ….”84 Thoroughgoing reforms are arguably needed, so that the S.C. better defends law: the rule of international law is widely regarded as endangered. The S.C. must also become more accountable, transparent, and legitimate—e.g., to counter its image of “the fox guarding the chicken coop”; and it must adopt more permanent and effective procedures.85

Terrorism A recent study shows “international terrorism” to be the only form of political violence that is on the increase. Political/organizational/technological innovations enable terrorist NGOs (whether we like this or not) to do things which were formerly the province of rogue nation-states, things which render a national self-defense almost impossible and which make terrorist organizations able to grab a seat at a poker table and often disrupt the game. For the U.S., Britain, and perhaps some other countries, this justifies an oxymoronic anticipatory retaliation (infra) as a game-move. The obvious risk this tactic poses to peace and security, when misused in Iraqi War II games for example, seems a prime motive behind U.N. attempts to regulate terrorism. A Convention Against Nuclear Terrorism, based on Russian proposals and criticized for omitting prohibitions on a state terrorism, was nevertheless approved by the G.A. and opened for signature by leaders at the World Summit. It is the latest of thirteen anti-terrorism conventions. Still,

83 Richard Black, U.N. Reforms Receive Mixed Response, BBC News, Sept. 17, 2005, 0730 GMT (quoting the document). See Mark Turner, U.N. “Must Never Again be Found Wanting on Genocide’, FINANCIAL TIMES, Sept. 17, 2005; 112a; Evelyn Leopold, Like Fixing the Weather, Council Reform Eludes U.N., REUTERS ALERTNET, Sept. 19, 2005, 0854 GMT; Andrew Teitelbaum, All We Can Hope is That Things Don’t Get Worse, I.P.S., SEPT. 24, 2005, 1418 GMT; Yoo, supra note 8. 84 Chesterman, supra note 50. See Thalif Deen, U.N.’s Authority Tested by Perils Ahead, I.P.S., Dec. 27, 2005. 85 James Paul & Celine Nahory, Theses Toward a Democratic Reform of the U.N. Security Council, GLOBAL POLICY FORUM, July 13, 2005 (downloaded from <globalpolicy.org>). See Somovia, supra note 54; Swiss Government, Working Methods of the Security Council July 2005 (17 recommendations in a “non paper” downloaded from <globalpolicy.org>).

some think that terrorism is inadequately outlawed by international law, especially those who believe that this inadequacy licenses intervention by one or a few countries. Britain’s Tony Blair thus proposed Security Council Resolution 1624, which passed unanimously during the Summit. Under it, all members must now “prevent incitement” to terrorism, deny safe haven to terrorists, and (a Blair preoccupation) “counter violent extremist ideologies.”86 But Kumi Naidoo, an NGO official and former African National Congress (ANC) activist, argues that 1624 is of “no effect” without a definition of “terrorism” from the Summit G.A.87 Human Rights Watch and Human Rights First disagree: oppressive governments can use a vague “prevent” and “incitement” to punish a non-violent criticism88, and I would add that the obligation to “counter … ideologies” can be used to similar effect. The Summit outcome document offered a therapeutic concession to developed countries, especially the U.S. and Britain, by promising to “make all efforts” towards yet another convention, and condemning “terrorism in all its forms and manifestations, committed by whomever, wherever and for whatever purposes.”89 But, as Naidoo notes, Muslim nations scotched any definition of “terrorism” which prohibits attacks on civilians, a definition needed to make the statement in the Summit document operative, for fear that such a definition would delegitimate, e.g., Palestinian self-determination efforts and rights to resist occupation. Naidoo adds that some thought the ANC a terrorist organization, but it now governs South Africa. Perhaps unconsciously echoing former

86 U.N. Security Council Passes Resolutions Related to Terrorism, JERUSALEM POST INTERNATIONAL Sept. 14, 2005, (quoting S.C. Res. 1624). See Andrew Grice, Blair Frustrated as U.N. Fails to Agree on Anti-terror Action, THE INDEPENDENT, Sept. 15, 2005; Lederer, Global Violence, supra note 54; Haider Rizvi, U.N. Treaty Targets Rogue Nukes, IPS, Sept. 13, 2005; Yoo, supra note 8; Security Council Meeting at Summit Level Unanimously Adopts Anti-Terror Steps, Sept. 14, 2005 (downloaded from <un.org>). 87 Black, supra note 85 (quoting Naidoo). The High-Level Panel suggested a terrorism definition: “any action, in addition to … {those in} existing conventions …, the Geneva Conventions and … {S.C. Res.} 1566, that is intended to cause death or serious bodily harm to civilians or non-combatants.” Rizvi, U.N. Treaty, supra note 68 (quoting the Panel). The definition proposed by Annan is: “Any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act.” Chemillier-Gendreau, supra note 65 (quoting Annan). Bolton’s proposed language involved “the targeting and deliberate killing of civilians … when the purpose …, but its nature or context, is to intimidate a population or compel a government or international organization {which} cannot be justified on any grounds ….” Patrick Goodenough, U.N. Summit Document Won’t Define Terrorism, Sept. 14, 2005 (quoting Bolton) (downloaded from <CNSNews.com>). No such definition, or any other, was adopted by the World Summit: see supra note 79 and accompanying text, infra. 88 See Grice, supra note 86, Mithre Sondrasagrn, U.N. Terror Resolution Overly Vague, HWR Says, I.P.S., Sept. 14, 2005; Human Rights First, Security Council’s Counterterrorism Resolution Open to Abuse By Authoritarian Governments, n.d. (downloaded from <humanrightsfirst.org>). See #41 (for Benin’s President, anti-terrorism requires scrupulous respect for state sovereignty, international human rights, and international humanitarian law); id. for Romania’s President, anti-terrorism can be “sustained” only by S.C. action). But see Sondrasagra (quoting the Danish Prime Minister): “Freedom of speech … must never be an excuse for inciting terrorism and fostering hatred.” 89 Black, supra note 83 (quoting the document).

President Reagan’s view of the Nicaraguan Contras, Naidoo concludes: “one person’s terrorist is another person’s freedom fighter.”90 While China and Russia want the U.N. to help coordinate anti-terrorism efforts, the Bush Administration (much like China and Russia, if they are honest) wants a carte blanche for unilateral action—with U.N. coordination only for “fringe” issues like money laundering. Placing security above development, Bush has moved further away from multilateral aid, arguably to militarize and funnel aid to, e.g., Pakistan and Israel. These are instances of regime rather than developmental support, huge “plunger” bets in pursuit of short-term game payoffs, rather than playing the more profitable, long-term ‘advanced poker’ that require a more equitable, broadly-based development. At the same time, few believe the E.U.’s holier-than-thou rhetoric over development aid (either).91 Most treat it like any other bet in a short-term game, because it is not backed by reduction in the E.U. subsidies to European agriculture that leave most developing countries without access to European agricultural markets. Intervention The Summit attempted to breathe new life into multilateral actions, in what proved to be an imperfect reform in organizational and nation-state priorities. Perception of collective security threats have changed, with W.M.D., terrorism, humanitarian crises, disaster relief, discriminatory ideologies, genocide, and abductions—especially of aid workers, becoming more prominent as threats. Also, complaints are prevalent that such interventions as occur are often arbitrary, that Security Council consensus resolutions are often too restrictive for a “robust” peacekeeping, and that donor peacekeeping aid usually arrives too late. Nonetheless, U.N. conflict prevention (and peacebuilding, infra) efforts are becoming more numerous and more effective. Operations in East Timor and Sierra Leone ended more or less successfully in 2005, and a recent Rand Corp. study found 66% of U.N. peacekeeping efforts to be successful. But even if, as some argue, the true figure is 40%, this is an achievement since collective peacekeeping did not really exist prior to the 1990s.92 Summiteers sitting as the Security Council passed another Resolution unanimously, 1625, which is aimed at conflict prevention (especially in Africa) and calls for preventative diplomacy, regional mediation, an early-warning system for potential conflicts, promoting fairness and transparency in elections, and acting against the illegal 90 Id. (quoting Naidoo). See Hughes, supra note ___; U.N. Set, supra note 37, supra. 91 See Grice, supra note 86; Sanjay Suri, Political Strings Tie Up U.S. Aid, I.P.S., Sept. 24, 2005. 92 Lederer, Global Violence, supra note 54. See Chemillier-Gendreau, supra note 65; Power, supra note 51; Gordon Brown & Hilary Benn, Let’s Put On Some Institutional Muscle, INT. HERALD TRIB., Oct. 19, 2005 (to deal with natural disasters, the following must be augmented and better coordinated—the emergency jurisdiction of the IMF and the World Bank, the U.N. Office for Coordination of Humanitarian Affairs, and the U.N. Emergency Revolution Fund); Howard LaFranchi, A Welcome Surprise: War Waning Globally, THE CHRISTIAN SCI. MONITOR, Oct. 18, 2005 (read off <scmonitor.com>); Haider Rizvi, U.N. Blue Helmets Earn Applause—and Censure, I.P.S., Dec. 30, 2005; Yoo, supra note 8 (humanitarian crises include systematic human rights violations and the collapse of central authority—or hijacking by non-state actors and involve individual liability as well as collective action problems). Yoo, id.; arguably proves the reformers’ case when he notes that between the Korean War and Iraqi War I (1991) 75-80% of deaths from violent conflict came from intrastate conflicts that the U.N. Charter drafters did not see as threats to peace.

exploitation of resources such as diamonds.93 Many also see a need to break the worldwide ‘Hobbesian’ cycle of war-conquest-‘empire’-oppression-succession-anarchy, and back to war. This cycle is based on the incentives and capacities for a violent, collective self-help: for example, the ability to coerce would-be “free riders” and to attract an external support for your cause—or to create a unifying distrust of external opposition. (These incentives and capacities can often be altered non-violently by, e.g., effective recognition of the right to self-determination).94 Romeo Dalliare, the Canadian General who headed U.N. peacekeeping in Rwanda, complains that the “Mogadishu rule” (in effect since the U.S. pulled out of Somalia in 1990) governs: “the sense of responsibility to human beings” loses out “against the self-interested demands imposed by the governments and …by their peoples and structures.”95 In other words, the initial S.C. decision to play ‘advanced poker’ over Rwanda was later deserted by players whose support and resources the U.N. needed, players who were not altogether free agents since they operated under ‘domestic’ strictures. These deserting players thus reverted to short-term, non-peacekeeping (poker) games where perceived payoffs were greater. Dalliare contrasts Rwanda with the self-interested (ostensibly security-based) intervention in Yugoslavia, where people are white—‘like us’ and living closer to us. He concludes that conflict resolution requires more enlightened and multi-skilled peacekeeper/humanitarians, who must be given a firm S.C. mandate to protect the people caught between warring participants.96

Interventions by another country (rather than the U.N.) are traditionally restricted to self-defense, or interventions otherwise permitted under Chapter 7 of the U.N. Charter. Bush’s assertion of a unilateral right of anticipatory retaliation, especially as mis-played during his Iraq poker hands, alerted the world community to the need for legal action. The High-Level Panel thus recommended a five-pronged interpretive loosening of Chapter 7 strictures, an effort Michael Glennon labels “wishful thinking.”97 When this

93 Security Council Meeting, supra note 86. 94 Brietzke, Globalization, supra note 7; Paul Brietzke, Self-Determination, Self-Determination, or Jurisprudential Confusion Exacerbating Political Conflict, 14 WIS. INT. L.J. 69 (1995) _____. 95 Romeo Dalliare, interviewed by MOTHER JONES (Jan. 2005) (downloaded from <cbc.ca/news>). 96 Id. See Somavia, supra note 67. Humanitarian interventions require “a series of interlocking legal and logistical safeguards—shored up by the political will of countries … and operationalized through a coherent U.N. system … functioning with NGOs and regional and local governments. A separate convention (treaty) is needed to protect nongovernmental personnel affiliated with U.N. relief efforts, id. But see Rizvi, supra note 68 (since the 1990 failure in Somalia, U.N. peacekeeping operations have become more aggressive and less “neutral”, in Haiti for example, resulting in the death of 91 peacekeepers in 2004). 97 Michael Glennon, Idealism That Won’t Work (2005) (SSRN Pap. No. ___). Glennon, id. lists the Panel’s five “criteria of legitimacy”: is the threat sufficiently serious, is the purpose proper, has every nonmilitary option been exhausted, is the military action proportionate to the threat, and is there a reasonable chance of success? For Yoo, supra note ___, these criteria will not forestall the use of self-defense as a pretext for illegality. Bush must have been irked when, during the World Summit, the new Iranian President called Bush’s anticipatory retaliation a “blatant contradiction to the very foundations o f

proposal is combined with the inability of the members of the International Criminal Court to define “aggression”, and with polls which show diverse national interpretations of “peace” (and even “development”, infra), Glennon concludes that a “legalist solution” to a profligate use of force is highly improbable.98 Nonetheless, Annan and, later, the World Summit outcome document, adopted a Canadian (and human rights NGOs’) initiative: the “responsibility to protect”, through uninhibited action, civilian populations against genocide or war crimes, when their governments are “unable or unwilling” to do so.99 This language was adopted despite assertions that it infringes state sovereignty, despite fears of endless S.C. debates—as over Rwanda and Darfur, and despite developing countries’ (including chronic human rights abusers’) fears that this “responsibility” would give major players (especially the U.S.) an excuse to intervene. The thoughtful former U.N. High Commissioner for Human Rights and President of Ireland, Mary Robinson, praises this World Summit (game) move, while adding that it is only the single leg of a stool where the others failed to materialize: human rights improvements, control over trade in small arms (“the real W.M.D.’s”), and especially, progress over development; the G-8’s “triumphal announcements” came off “looking hollow.”100

Peacebuilding The (post-conflict) Peacebuilding Commission is an important World Summit reform which generated no reported disagreements during negotiations. Perhaps this is because the Commission formalizes and institutionalizes steps already being pursued by

the U.N. and the letter and spirit of its charter.” Tyler Marshall, Iran Leader’s First U.N. Speech Has a Pretty Clear Target, L.A. TIMES, Sept. 15, 2005. 98 Glennon, supra note 19. 99 Black, supra note 83 (quoting the document). See Iraz Hussein, Is the Glass of U.N. Reforms Half Full?, (Pakistan) DAILY TIMES, Oct. 7, 2005 (read off <unwire.org>) (between 1827 and 1914, the U.S. intervened in Latin American countries 70 times on “humanitarian”/’duty to protect’ grounds; the “principle alone is not sufficient”); Sanders, supra note ___; Ward, U.N. Blocks, supra note ___; Main Divisive Issues, supra note 80. 100 Robinson, supra note 72. See Mark Turner, U.N. ‘Must Never Again be Found Wanting on Genocide’, FINANCIAL TIMES, Sept. 15, 2005 (for Zimbabwe’s Mugabe, “responsibility to protect” can be a cynical ploy in an aggressive foreign policy); #121 (quoting Rwanda’s Foreign Minister Murigande (will the document “lead to lengthy academic or legal debates on what constitutes genocide or crimes against humanity, while people die?”); id. (the U.N. has “consistently neglected to learn from its mistakes” in, e.g., Rwanda); Brinkbaumer & Muscala, supra note ___; Ward, U.N. Backs, supra note 47; Better Than Nothing, supra note 75. On development and the G8, see notes ___ and accompanying text, infra. While the Bush Administration has moved too slowly over Darfur, a no-fly zone has not been imposed, and there has been no NATO deployment. But the U.N. is even slower. Darfur’s Despair, supra note 82; Editorial: Negotiating With Genocide, WASHINGTON POST, Oct. 9, 2005, B6; Main Divisive, supra note 80. U.S. Ambassador Bolton (plus China, Algeria, and Russia) thus blocked a U.N. envoy from briefing the S.C. about human rights violations in Darfur: action rather than talk is required.

consensus, sometimes as logical extensions of more overt interventions and now to create an in-house expertise and training in mediation and “good offices.” Past efforts show how non-violent interventions by third parties can bridge deep hatreds to build communication and trust among the parties. U.N. mediators have helped free hostages, resolve border and electoral disputes, and forge peace agreements in the Cambodia, El Salvador, and Guatemala of the 1990s. In particular, Lakhdar Brahimi navigated deep ethnic and political divisions while creating the “road map” for Afghan governance.101

As an effort which overlaps some U.N. Development Program (U.N.D.P.) projects, $42 million has been raised from 39 countries—and especially from the U.S., India, and Australia—to create a new Democracy Fund (U.N.D.E.F.). The idea is to fill in the gaps experienced by countries in transit from some kind of authoritarianism. The anticipated projects include: the creation of civil societies; the rule of law; political parties; independent courts; a “free press”; trades unions; enhanced monitoring, evaluation, and auditing capacities; more professionalized civil and military establishments; and programs to safeguard the rights of women, children, and minorities. No particular democratic model will be endorsed, no (IMF- or World Bank-style) conditionality will be imposed on the aid given, and the Fund will report to the General Assembly. Both of these reforms look like useful ways to restructure domestic games, to make an ‘advanced poker’ more common and more likely to yield cooperative, positive-sum outcomes.102

Non-Proliferation In contrast to the peacebuilding successes described in the last two paragraphs, Secretary-General Annan noted that the World Summit “could not even agree on a paragraph on non-proliferation and disarmament, and I … {find this} a disgrace and a real failure.”103 We might see in this the same kind of failure described earlier and later: too many players preoccupied with (perhaps misperceived) short-term gains potentially available from smaller, non-‘advanced poker’ (uncooperative, zero-sum) games.104 As things stand, the Nonproliferation Treaty (NPT) allows the U.S., Britain, France, China, and Russia to possess nuclear weapons, but requires them to disarm. Other state-parties are strictly prohibited from having them. India, Pakistan, and Israel have not signed the NPT however, and North Korea withdrew from the NPT in 2002. Nuclear-free countries 101 La Franchi, supra note ___; Lederer, Global Violence, supra note (43}; Editorial: Making Peace Work, L.A. TIMES, Oct. 23, 2005. 102 Ayesha Gooneratne, U.N. Launches New Democracy Fund, I.P.S., Oct. 12, 2005. See notes ___ and accompanying text, supra (‘advanced poker’). But see also Robin Wright, Middle East Democracy Summit Ends in Rancor, WASHINGTON POST, Nov. 12, 2005 9:38 A.M.: Bush’s Forum for the Future, held in Bahrain, ended without a formal agreement on democracy promotion, Egypt—thought to be dependent on U.S. foreign aid—insisting on Arab governments’ control over which democracy groups receive aid. 103 Nick Wahams, General Assembly OKs Compromise Document, ASK JEEVES, Sept. 13, 2005, 10:10 (downloaded from <ask.com>) (quoting Annan). 104 See text following note ___ {51) supra; notes ___ and accompanying text, infra.

supported the NPT in the past because of the nuclear “haves’” promise to disarm, but this is being undermined by Bush’s refusal to disarm, by other Bush/Bolton actions105, by Russia106, and by actions of others. The most dangerous ‘other’ is Pakistani scientist and black marketeer, A.Q. Khan. He facilitated a proliferation by North Korea, a potential proliferation by Iran and Libya, and by who knows where else, feeling that Muslim countries had their nuclear weapons desires thwarted while Israel and India were given free rein.107 He is such a nationalist hero as to be untouchable by the international community—so long as he stays in Pakistan. The reformist heavy lifting in this area was helped along by an NGO: the Nobel Committee awarded the 2005 Peace Prize to the International Atomic Energy Agency (IAEA) and its head, Egyptian lawyer Mohamed El Baradei. This Prize was both a slap at the U.S. and a warning that the serious threats posed by Khan, North Korea, Iran, et al. can only be met through international cooperation—rather than unilateral or collaborative action from within the major players. (The U.S. had opposed El Baradei’s re-election because of his behavior concerning Iran, until it became clear that there was no other suitable candidate; and the U.S. later purported to find in his Nobel Prize a warning to Iran.) Particularly innovative and deserving of global support is El Baradei’s new proposal: countries which do not yet have nuclear weapons should forbear producing nuclear fuel for at least ten years. Fuel would be supplied (and disposed of later) by a country already having nukes, with the IAEA as the supplier/disposer of last resort. The

105 Xin Benjian, Who’s Pushing Nuclear Proliferation, PEOPLE’S DAILY ONLINE, Oct. 27, 2005 (the 44-member Nuclear Suppliers Group, which exerts export controls—especially when the importer has not signed the NPT—turned down the U.S. request to offer access to India); id. (this attempt makes it more difficult for the U.S. to win support from the international community to not supply North Korea and Iran); Hudson, supra note ___ (“The U.S. seeks to reinterpret the NPT as legitimizing the possession of weapons by existing nuclear states, while using it as the justification for confrontation with states accused of proliferation.”); id. (countries resent this “do-what-we-say-not-as-we-do” attitude); id. (the U.S. proposes to develop new nukes, for use even against non-nuclear states); id. (the question arises—“who exactly are we deterring?”); Colum Lynch, Bolton Criticizes Bill Withholding U.N. Funds, WASHINGTON POST, Sept. 28, 2005, A20 (asked in Congress why he didn’t strike deals at the Summit for non-proliferation of biological and chemical weapons, Bolton said “We ‘tried very hard’ but were opposed by countries who saw the U.S. rather than rogue states as the prime proliferators); Jacques Hymans, Think Again: Nuclear Proliferation, FOREIGN POLICY, Nov. 2005 (read off <foreignpolicy.com>) (Americans “squander” non-proliferation opportunities through a … tendency to lecture rather than to listen.”). 106 E.g., Ted Turner & Stanley Weiss, Avoiding A Russian Arms Disaster, WASHINGTON TIMES, Nov. 6, 2005 (downloaded from <washingtontimes.com>) (half of Russia’s weapons-grade nuclear materials are poorly protected, as are shells of VX and Sarin nerve gas, and the Nunn/Lugar program that has eliminated some Russian nukes is now under threat from Congress). 107 Douglas Frantz, From Patriot to Proliferator, L.A. TIMES, Sept. 23, 2005. See Hudson, supra note ___ (in 1996, the International Court of Justice called for nuclear disarmament obligation to be met); Sanders, supra note ___ (in light of the U.N. Charter pledge ‘to save succeeding generations from the scourge of war”, the U.S. ‘failure to agree on disarmament and nuclear non-proliferation is a woeful foreboding that conflicts will get worse not better.”). But see Hyman, supra note 105, supra. (Since the end of the Cold War, more nations have given up nuclear arsenals than have created new ones); id. (the nonproliferation regime has not been as successful as advertised, since the vast majority of states simply has no interest in doing what the N.D.T. prohibits).

IAEA seems to do its best work when given unfettered access108—which is not the case in North Korea and Iran, where various nation-state players claim primacy. The IAEA could be understood as claiming a seat at the poker table, helping to guide play in more ‘advanced’ (cooperative/positive-sum) directions. The World Summit Draft outcome document asked governments to take action against organized crime, as well as against the proliferation of small arms—“the real WMD”, according to Mary Robinson109—and of land mines. 145 nations have ratified the Landmine [non-proliferation] Treaty, the product of the Campaign that won the 1997 Nobel Peace Prize, and performance under the Treaty has been relatively good. But regrettably, the Pentagon may soon produce two higher-tech landmines.110 To allow Annan the last word, the “non-proliferation regime” is “unraveling” because “we have allowed posturing to get in the way of results.”111 (Posturing can be understood as a relatively insubstantial poker bet, which is treated as such by the other players.) Administration—and a Sidebar. Paul Volker, the head of the oil-for-food investigating Commission, which convinced most U.N. members of the urgency of administrative reform (sidebar, infra), found that Secretary-General Annan’s “cumulative management performance” fell short of the standard the U.N. “should strive to maintain.”112 The putative keeper of the better natures at the U.N., Annan thus continued his attempts to rebuild U.N. legitimacy, at a time when his own political and moral authority was at its weakest. Many problems stem from the U.N. bureaucrats’ inbred and cosseted (by diplomatic immunity) existence. Bureaucratic positions are filled by nationality rather than merit in an atmosphere of secrecy and unaccountability, and many U.N. goals get compromised by a bureaucratic unwillingness or inability to implement them. Except for improved security measures, to forestall the recurrence of events like the Baghdad explosion that killed Sergio de Mello and other valued U.N. officials, Annan managed only partial reforms before the World Summit. These earlier reforms nonetheless left U.N. bureaucrats—most of whom have little faith in their seniors—with their morale further damaged. The World Summit (thus)

108 Deen, supra note 37; David Holley, Nuclear Chief Offers a Nonproliferation Plan: Promise Them Fuel, L.A. TIMES, Oct. 6, 2005; Despite Prize, Nuclear Agency Flawed, TORONTO STAR, Oct. 12, 2005; Nuclear Watchdog Wins Nobel Peace Prize, AP, in INT. HERALD TRIB., Oct. 7, 2005; Short-Lived Celebration, supra note 53. But see Hymans, supra note 105 (while the nonproliferation regime is billed as successful, the fact is that most countries do not want the bomb in question anyway); id. (the IAEA regime is “flimsy”, suffering from “ambiguous and erratically enforced rules, a myriad of technical loopholes, and chronic underfunding.”). 109 Robinson, supra note 72. 110 Human Rights Watch, Back in Business?: U.S. Landmine Production and Exports, Aug. 2005 (briefing paper, which can be downloaded from <hrw.org>). 111 Hussain, supra note __ (quoting Annan). See Black, supra note 83. 112 Bill Berkowitz, At Sixty, It’s Uneasy Times for the U.N., I.P.S., Nov. 10, 2005 (quoting Volker).

approved Annan’s additional reforms, under his claimed goals of improving U.N. integrity, impartiality, and its capacity to deliver: an internal ethics office, especially to resolve conflict-of-interest problems; strengthening the Office of Internal Oversight Services, and other auditing, etc. programs designed to increase efficiency; a one-time buyout of the least competent U.N. bureaucrats; an independent and external evaluation committee; and increased uniformity over which documents are made public, with a bias towards an increased transparency in the U.N. Secretariat. These were the reforms the U.S. and other major funders of the U.N. wanted, and they were adopted despite minor players’ suspicions that they would be used by their advocates, especially the U.S., to control the Secretary General. Developing country worries were well-placed, to the extent that budgetary and other major administrative controls are being removed from the General Assembly that the developing countries dominate.113 This looked like a straight zero-sum (not an ‘advanced’) poker game, with developed (U.N.-funding) countries able to out-bid the developing ones. As mentioned earlier114, the oil-for-food sidebar provoked shameless exaggeration of the extent of corruption, and of Annan’s role in it, in a failed American neoconservative quest for the Secretary-General’s head—because he approved of the S.C.’s denial of permission for Iraqi War II. (Under this sidebar, Iraq was permitted to circumvent the sanctions installed after Iraqi War I, by selling oil in order to buy food and medicine). The Reports of the Volker Commission investigating this sidebar also encouraged the administrative reforms discussed in the last paragraph. These Reports fault Annan for seeking administrative review of oil-for-food through the S.C., rather than an outside investigation of the scandal, and for not supervising his son Kojo—who profited from the corruption and then proved uncooperative with the Volker Commission. But U.S., French, British, Russian, and Chinese representatives on the Security Council oversight committee approved the relevant oil-for-food transfers, while turning a blind eye to abuses. (Russia received one-third of the oil.) This corruption pales in comparison with that of the U.S. Coalition Provisional Authority in Iraq. Among other things, $12 billion was withdrawn from the N.Y. Federal Reserve as 363 tons of $100 bills. 80% of another large disbursement could not be accounted for. Fortunately, a neoconservative American attempt to find corruption in U.N. tsunami funds, has gone nowhere.115

113 Brown, supra note 15; Chesterman, supra note 50; Deen, U.N.’s Authority, supra note 84; Mitchell, supra note 75; Mark Turner, Envoys Fight to Keep U.N. Reform Package on Track, FINANCIAL TIMES, Sept. 12, 2005 (downloaded off <ft.com>); Nabal Toosi, Annan Defends Summit’s Accomplishments, Agrees Some Results Mixed, A.P., Oct. 17, 2005, 3:15 P.M. E.D.T. (downloaded from <newsday.com>); Walker, supra note 49; Ward, Frechette, supra note 47; Key Elements of U.N. Draft Document, N.Y. TIMES, Sept. 13, 2005; U.S. Fears Summit Will Gut U.N. Reform, Rights Plan, Reuters, Sept. 12, 2005 (downloaded from <AlertNet.com>). See Turner; Volker, supra note __ (quoting in note 115, infra; notes __ and accompanying text, infra (Group of 77’s opposition after the Summit. 114 See note ___ and accompanying text, supra. 115 Doreen Carvajal and Andrew Kramer, Report on Oil-for-Food Scheme Gives Details of Bribes to Iraq, N.Y. TIMES, Oct. 28, 2005; Maggie Farley, U.N. Oil-for-Food Inquiry Findings Surprised Volker, L.A. TIMES, Oct. 28, 2005; Colum Lynch, Oil-for-Food Probe: U.N. Needs Overhaul to Stop Fraud, WASHINGTON POST, Sept. 7, 2005, A20; Lynch, U.N. Panel Says 2,400 Firms Paid Bribes to Iraq,

Saddam profited to the extent of $250-600 million per year, including “kickbacks” from Volvo, Siemens, Daimler Chrysler, Coastal Petroleum of Houston, and 2,400 other firms; and from the sales of oil smuggled through Jordan, Syria, and Turkey. Neither the kickbacks nor the smuggling was part of the U.N. oil-for-food program, and U.S. and British intelligence had to know of the smuggling—impossible to conceal from overflights and satellites—and of the many diplomatic bags stuffed with cash that moved in the opposite direction. Nevertheless, Annan accepted responsibility for these scandals and the attendant design, auditing, and management failures. But having mended his Washington fences with all but the extremists, Annan then got outspoken support from almost all U.N. members. This is appropriate: differences among countries impeded supervision and operated to tolerate corruption. What ensued were ‘unofficial’ poker games among some nation-states, individuals (especially Saddam), and corporations shamelessly devoted to making of money at the expense of dishonoring U.N. ideals and eroding the public’s support for them. No one was in charge (a hallmark of poker) and no one emerged covered in glory.116

Interrelated (?) Human Rights and Development In a thoughtful article, Philip Alston argues that development and human rights advocates should pay much more attention to each other’s concerns, which are linked by a “virtual tautology”: the “U.N. approach of indivisibility”117 that arguably informs the entire reform effort. Human rights and development advocates should “engage more effectively”, share their “imagination and energy”, “prioritize” between themselves, reduce the gap between rhetoric and actual programs that both groups share, and work to increase the capacities of “duty-bearers” to meet obligations and of “rights-holders” to claim the fruits of these obligations.118 Mary Robinson calls extreme poverty the most serious form of human rights violation, especially given the ways poor countries use their scarce resources119—in no small measure because of strictures imposed by the IMF, the WASHINGTON POST, Oct. 28, 2005, A16; Mark Turner, Volker Set to Call for Reform of U.N. Leadership, FINANCIAL TIMES, Sept. 5, 2005, 21; 51; Walker, supra note 49; Ian Williams, The Sound of Silence: As in Dogs Not Barking, Maximsnews.com, Dec. 30, 2005. 116 Lynch, U.N. Panel, supra note 115; David Lynch, Report Details Kickbacks for Iraq, USA TODAY, Oct, 27, 2005, 12:30 A.M.; Walker, supra note 49; Probe Finds Illicit, Unethical Corrupt Oil-for-Food Operation, USA TODAY, Sept. 6, 2005, 12:55 A.M. See Turner, Volker, supra note ___ (quoting Mark Malloch Brown) (“Entrenched interests inside the organization” the U.N., “a wish that all of this would go away and that it could settle back into comfortable mediocrity again.”). 117 Philip Alston, Ships Passing in the Night: The Current State of the Human Rights and Development Seen Through the Lens of the Millennium Development Goals, 27 H. RT. Q., 755, 784-85 (2005). See Security Council Meeting, supra note 86 (quoting French P.M. deVillepin) (calling for “resolute action” at the World Summit “on everything that fuels terrorism—the inequalities, the persistence of violence, injustices and conflicts, the lack of understanding among cultures,” since force “does not address the roots of evil.”). 118 Alston, supra note 117, at 755-56, 770, 790. 119 Id. at 786-87 (quoting Robinson).

World Bank, and private foreign investors and lenders. Unfortunately, the poker metaphor predicts Alston’s conclusion—human rights and development advocates are “ships passing in the night:”120 different players in different games are pursuing different gains in different ways, forestalling what is perhaps Secretary-General Annan’s mega-‘advanced poker’ of cooperation and coordination in pursuit of security as well as human rights and development. Human rights may be “open-ended, contingent and … subjective,”121 but they are much less so than the World Summit’s treatment of them. They were potentially improved as an ancillary effect of establishing the Peacebuilding Commission, and of creating the “responsibility to protect” against genocide or war crimes. On the other hand, human rights were seriously damaged by the lack of progress over non-proliferation and implementation of the Millennium Development Goals (infra), and slightly injured by the (slight, it turned out) emphasis on terrorism. Secretary-General Annan had called for reform of the Human Rights Commission into the “third pillar” of the U.N. (along with the General Assembly and the Security Council) because of that Commission’s “declining credibility and professionalism.”122 The reformed body should operate continuously, rather than the current six weeks per year term that is conducive only to grand but superficial gestures; given more time, effective monitoring of countries’ human rights undertakings would be possible. Also, membership in the body should be reserved to countries making real contributions to human rights.123

In 2004, the Human Rights Commission refused to act over abuses by China, Iran or Zimbabwe, or by Russia in Chechnya. Chaired by Libya, the 2004Commission had Zimbabwe as a member and re-elected Sudan during its Darfur abuses, having earlier refused to re-elect the U.S. (This reminds me of Lyndon Johnson’s response to criticism over appointing Admiral Hyman Rickover to the Nuclear Regulatory Commission: “Wouldn’t you rather have him inside the tent pissing out than outside the tent pissing in?”) This re-election failure of the U.S. attracted the enmity of neoconservatives, and the apparent top priority of the Bush Administration during the World Summit was to punish a Commission showing this much independence—by destroying it. The Commission repaid this favor by appointing eight independent human rights experts aggressively to evaluate the rights record of the U.S. over the past five years—as part of the Commission’s regular evaluation cycle. Investigated are the worldwide treatment of ‘terrorist’ detainees, the U.S.A. PATRIOT Act and the copycat laws it spawns worldwide, the Iraqi tribunal trying Saddam and his colleagues, the death penalty, and other shortcomings. Admission of the U.N. experts to U.S. prisons in Afghanistan, Iraq,

120 Id. at 825. 121 Id. at 760. 122 Human Rights Watch, U.N. Reform Q and A (n.d.) (downloaded from <hrw.org>) (quoting Annan) (hereinafter Q & A]. See Brown, supra note 15; Q & A; Security Council Meeting, supra note 86 (quoting deVillepin in note 105, supra). 123 Q & A, supra note 122 (quoting Annan).

and Guantanamo has been denied by the U.S. The Mickeljohn Civil Liberties Institute at Berkeley documented 180 alleged human rights violations by the U.S., and 19 alleged violations of human rights duties by the federal government.124

The World Summit missed an important reform opportunity, by referring key decisions about a Human Rights Council (to replace the Commission) to the General Assembly (G.A.) for action. This move was supported by Russia, China, Egypt, Pakistan, and some other countries concerned about their human rights record. Only the Summit’s doubling of the budget for the Office of the High Commissioner for Human Rights (the capable Louise Arbour is the current High Commissioner) is regarded as adding (a minimal) content to reform. It seems clear that opposition to making human rights protections more effective among three of the four major players left the matter all-but-unreformed within the fifth major player. Some criticized the U.S. for trying to remove from the Commission countries hostile to U.S. interests, and for U.S. support of some human rights-abusing regimes, but an E.U. official called the new Council “a simple name-change.”125 Trying to put a brave face on this non-reform, Mark Malloch Brown said that the new Council offered reform leverage within the G.A., for countries that really care about human rights. Activists’ calls for a human rights court (like that of the E.U., rather than a Commission or Council), or for a court combining this function with the International Court of Justice and the International Criminal Court, are unlikely to go anywhere for some time to come.126

* * * * * *

Lack of progress on development during the September 2005 World Summit, and the failure effectively to plan implementation of the Millennium Development Goals in particular, is perhaps the clearest illustration this article offers of how something like a (cooperative, positive-sum) ‘advanced poker’ can give way under the lure of possibly winning smaller gains more quickly in zero- sum, ordinary poker ways. At first glance, this is because of the limited altruism displayed by most developed countries; Canada,

124 supra note110; Thalif Deen, U.N./Human Rights Body to Scrutinize U.S. Abuses, I.P.S., Sept. 20, 2005. See Hughes, supra note __ (quoting language from Bush’s World Summit speech which echoes some of Annan’s ideas); La Franchi, supra note 101 (quoting John Norris, of the International Crisis Group) (recent human rights progress through “international actions against high-profile violators like Serbia’s Slobodan Milosevic or Liberia’s Charles Taylor); U.N. Envoy Cautions on China Rights, BBC News, Sept. 12, 2005 (Louise Arbour, text accompanying note __, infra, concerned about China’s detaining journalists, labor activists, and ethnic minorities, and about the treatment of Tibetans and Muslim neighbors). 125 Evelyn Leopold & Paul Taylor, U.N. Assembly Approves Weekend Summit Blueprint, WASHINGTON POST, Reuters, Sept. 13, 2005, 7:52 P.M. (quoting Benita Ferrero-Waldner). See Power, supra note 51; Deen, U.N. Human Rights, supra note 124; id. (quoting Norman Solomon, of the D.C. Institute for Public Accuracy) (the U.S. “is among the most culpable of human rights violators”); id. (“A superpower that is striving to remake” the U.N. “in its own image can hardly be expected to submit to institutional scrutiny of its actual human rights record.”); Hussain, supra note __; Evelyn Leopold, U.S. Fears Summit Will Get U.N. Reform Rights Plan, REUTERS ALERT NET, Sept. 12, 2005, 18:42 GMT; Haider Rizvi, supra note 65; Mark Turner, Envoys Fight to Keep UN Reform Package on Track, FINANCIAL TIMES, Sept. 12, 2005, 03:00. 126 Brown, supra note 15; Human Rights Watch, Key Human Rights Proposals Stymied, Sept. 13, 2005.

Holland, and the Scandinavian countries are worthy exceptions. This altruism is mostly exhausted on the plight of fellow-citizens rather than on far-away ‘strangers’—unless the foreigners’ are victimized by some mediagenic disaster perhaps. Also, middle-income countries like India and Brazil can expect little in the way of increased development aid and are, rather, worried about tougher human rights standards and a dilution of their influence at the U.N. International law thus continues to honor voluntary redistributions (by aid “donors”, perhaps through what are called M.D.G. “development compacts”) but almost never creates a legal obligation of redistribution.127 Such an obligation could be imposed as a matter of developed country status rather than contract, but it would be almost impossible to enforce this obligation under governance without a government, or to determine the relative rights and obligations of middle-income countries. Unfortunately, this international law and practice of a voluntary and thus limited altruism is badly out of step with a well-informed reality. While development is a “public good”: initially, a perception which encourages many developed countries to be “free riders” who reap diffuse benefits without bearing focused costs128, development also spawns significant benefits which can be directly appropriated by individuals, NGOs, and developing and developed countries in the long run. Development results in more goods and services being produced, traded, and consumed of course; and also in a greater citizen tolerance, a willingness to settle disputes peacefully (especially if good rules and courts are in place), a democratic inclination, and the greater energy and happiness that flow from improving living standards. After all, this is the promise of modernism, Max Weber’s for example, which is why post-modernism is unpopular in the Third World: people there want to experience extensive material benefits before feeling “alienated” 127 Alston, supra note 117, at 777, 786, 825; Posner, supra note 8; Turner, 13. For example, an $88 million U.N. appeal concerning starvation caused by draught in Malawi, contemporaneous with the World Summit, attracted government pledges after three weeks, where $1/day would save a life. Malawi Appeal Gets _____, BBC _____. Similarly, the 2005 aid shortfall at the U.N. High Commission for Refugees and the U.N. World Food Program (WFP) is $219 million and $182 million respectively. African Refugees, ___________. Developed countries spend more in a week to subsidize their own farmers than they spend in a year to help starving children. U.N. Warns ______. The WFP requested bids from the ten largest reinsurance companies, in a pilot scheme to insure Ethiopia against draught. Mark Turner, U.N. Move to Insure Against Drought, FINANCIAL TIMES, Oct. 15, 2005, 03:00. (Such insurance is necessary only because of limited altruism, since a global self-insurance by all of us would save much money in terms of reinsurance company profits.) In contrast, a proposed insurance fund for foreign investors in Gaza (Kessler, supra note 23) makes sense regardless of altruism, since this bind of private-sector insurance is commonly thought essential to investment in developing countries and commonly arranged through a division of the World Bank. But see also Linus Atarak, World Bank Chief Says Africa is First Priority, I.P.S., (quoting Wolfowitz) (discussing developed countries “obligation” to help developing countries without describing how the obligation can be enforced); id. (“uncomfortable” for developing countries to give up subsidies during Doha negotiations, but this is far less serious than the “daily … deprivation” these subsidies generate among “the poorest.”). 128 At the World Summit, the Presidents of China and Indonesia stressed the importance of a global cooperation, without which development efforts are bound to fail. GA/10381. (Cooperation with people otherwise excluded from the development process is particularly important to success. Arndt. See notes ____ and accompanying text, supra.

from them. (In contrast, economic stagnation or decline is conducive to frustration, friction and, sometimes, ethnic strife, authoritarianism, and a swelling of terrorist ranks.) From this perspective, two central developmental problems remain: Western politics has an overwhelmingly short-term orientation which is ill-suited to development issues, an orientation marked by two- and four-year election cycles in the U.S. for example; and large gaps in the agendas and priorities among countries result in too little of the cooperation essential to a sustained ‘advanced poker.’129 Such gaps spawned what South Africa’s Mbeki termed a “half-hearted, timid, and tepid” World Summit130, and also paralysis and apparent deadlock (as of this writing) in the Doha Round of WTO negotiations, and widespread dissatisfaction with the (anti-) developmental behavior of the IMF and the World Bank. The remedy proposed later is a reinvigoration of the rules of liberal internationalism, to further embed a global ‘advanced poker’ through a mature understanding of our long-term interests and needs.131 The Millennium Development Goals (M.D.G.s; see the Appendix) were to be the focus of the September 2005 World Summit, accounting as they did for half of the Summit draft (pre-negotiations) outcome document. Secretary-General Annan observed that “[n]ations must tear down the walls that separated the developed and developing world,”132 and Roger Coate speaks of a “system-wide initiative to raise people out of hell-like conditions.”133 Helen Tombo and Kevin Watkins discuss the reality of a global inequality: 2.5 billion people currently live on less than $2 per day, with 1.2 billion of these living at a lower “poverty” level.134 Projections indicate that 800 million will still live in poverty in 2015 (the anticipated end of the M.D.G. process), 380 million more than the relevant M.D.G. Target stipulates. In 2005, we are five years into the twenty year M.D.G. process, and 50 countries (900 million people) already make little or no progress toward one or more M.D.G. targets, a lag which undermines progress in meeting the other targets. The projected non-attainment of another Target by 2015 means that an additional 41 million children will die needlessly; a child currently dies every three seconds, a mother dies every minute during childbirth, and 25,000 people die from starvation every day. More than one billion people lack access to a safe water supply, 129 BENJAMIN FRIEDMAN, THE MORAL CONSEQUENCES OF ECONOMIC GROWTH (2005); Shiffer & Hakim, Why the Rich Must Get Richer, THE ECONOMIST, Nov. 12, 2005, 87. 130 South Africa’s Mbeki (discussing the lack of resources for the poor to extricate themselves from misery and the related need for developed countries to go beyond traditional definitions of “security.” 131 See notes ___ and accompanying text, infra. 132 Sixteenth General Assembly Plenary, United Nations General Assembly, World Leaders at General Assembly Summit Urged to Persevere, Take Bold Steps to Tackle Urgent Challenges, As Lives of Millions Hang in the Balance, (GA/10379) (quoting Annan). 133 Coate, supra note 1. 134 Helen Tombo, Global Call to Action Against Poverty, _____; Isaac Baker, Time for a “Decisive Breakthrough, UN Urges, IPS, Sept. 7, 2005; United Natnins Development Programme Bulletin, More Aid, Pro-Poor Trade Reform, and Long-Term Peace-Building Vital to Ending Extreme Poverty, MDG, Sept. 7, 2005 (quoting Kevin Watkins, a lead author of the 2005 UNDP Human Development Report).

and 2.6 billion lack access to sanitation, yet rich countries give half as much development aid (in real terms) as they gave in 1960.135

A significant departure from previous approaches to development, the M.D.G.s captured the imagination and energy of international agencies, developing countries, and NGOs. Mobilization of these organizations is sought to generate national reports that describe development priorities—many of the reports already drafted make no reference to human rights—and also voluntary “development compacts” between a developing country and developed countries. Transparency and a great deal of publicity are thought essential to keeping the countries and organizations’ feet to the developmental fire, but coverage of the M.D.G. process by mainstream media has been disappointing so far.136

Conflicts over development priorities and techniques emerged soon after the consensus (‘advanced poker’) promulgation of the M.D.G.s in 2000. A few countries, led by the U.S., continue to advocate the “free-market model” of ‘development’ (really, the pursuit of economic growth) that reigned in the 1990s, after the demise of many communist party-states and the erosion of the means to finance “welfare” measures in social democracies. (Family planning was deleted from the M.D.G.s prior to their promulgation, to appease American neoconservatives and the Vatican, despite the essential role of population control in attaining M.D.G. targets among the least developed countries.) In contrast, many developed and almost all developing countries pursue goals which are ignored de facto by markets and their advocates: rather modestly redressing inequalities in favor of the poor and powerless, and forestalling the economic instabilities characteristic of an unregulated capitalism—particularly the “premature” marketization that the IMF and the World Bank demand from developing countries (infra). The U.S. thus winds up pursuing free trade at the expense of generous development aid (aid supplied subject to conditions which make the relatively small sums less effective), while the E.U. supports relatively generous aid at the expense of a potentially more valuable free trade—especially in agriculture. Russia and China (the other major players) passively support the developmental strategy of the majority, while the World Bank now speaks of an oxymoronic “market-driven equality.”137

135 Tombo, supra note 134, 124 supra note ___; Baker, supra note 134. See Penderio (quoting a WHO official, the shortfall in achieving M.D.G. health targets to date is “staggering.”). 136 Alston, supra note 117, at 756, 777, 780, 786; Diana Cariboni, Poverty Missing From the News Agenda, I.P.S., Nov. 22, 2005. 137 See Chemillier-Gendreau, The Alternative U.N., supra note 65; Shirin, World Bank Calls for Market-Driven Equality, IPS, Sept. 20, 2005; Marcela Valente, Civil Society Forum-A Sham?, IPS, Sept. 9, 2005; Deen, Family; Stephen King. There is too little development aid—adjusted for inflation, it has not increased yet. African countries are dependent on it—agriculture has been neglected recently, too much aid is absorbed by consultants from the donor country, and effectiveness is reduced by the overlaps created by a failure to coordinate donors’ programs. Dugger, supra note ___; Sachs at 7; The Foreign Aid Gap. Even the U.S. HIV/AIDS program is bilateral and channels funds according to U.S. strategic interests. Free trade maximizes output from given inputs, but says nothing about the distribution of that output. Stephen King. According to the World Bank’s Wolfowitz, “inequity” most often happens when markets are missing, imperfect or failing. But the M.D.G.s are driven by the idea that lack of development does not flow from a lack of trade, but from a lack of capital and geographic, political or technological constraints,

The World Summit M.D.G. outcome was spotty, but with an overall lack of progress in solving the collective action problems of development. Optimists’ hopes that the M.D.G. process would rejuvenate multilateral behavior were thus dashed.138 Mary Robinson concludes that the M.D.G.s “now seem set to join the pile of broken pledges that mark the old U.N.’s history.”139 The Summit also ratified an earlier move by the wealthy G8 countries, which then received additional ratifications from International Monetary Fund (IMF) and World Bank (WB) meetings. After eight years of popular campaigning, through rock concerts, etc., the G8 agreed to $40-55 billion in debt relief King. According to Social Watch, the resulting poverty stems from an inequality of access to income, power, job opportunities, information, social services, and political participation. This amounts to Amartya Sen’s deprivation of basic capabilities, measurable under the Social Watch Index: the proportion of births attended by skilled health personnel, the under-5 infant mortality rate (which grows worse in 56 countries), and the proportion of children in school through the fifth grade. Cariboni. Martin Ravallian, Inequality Is Bad for the Poor, World Bank Research Paper 4677 (Aug. 2005): Economic growth and trade are distribution-neutral, often inequality-promoting, and thus they have less of the “welfare impact” associated with development. Care must be used in deplacing poverty reduction (rather than inequalities reduction as such) programs, lest redistributive policies inhibit growth and create additional economic distortions.” “Win-win policies” are the solution, policies that eliminate inhibitions on growth which are also serve to increase inequalities. E.g.s are, fixing market and government failures, making institutions work better, improved infrastructures, and a better delivery of quality health and education which is more responsive to the needs of the poor. Id. Inequality is the root cause of poverty in Latin America, Osara. The halving of extreme poverty (M.D.G. Target 1) by 2015 is unlikely in Brazil or Argentina, and attention to poverty occurs only through the election of progressive governments, id. See World Bank Calls for Market-Driven Economy, IPS, Sept. 21, 2005, 03:28 GMT (quoting Rick Rowden) (equality cannot come about through market-based privatization policies or without eliminating a gender-bias; Macon-Maskor (citing a recent ILO study about the growing “employment gap”, “jobless growth” in ‘booming Asian economies that increasingly underfund public heath); Tranovich (women are more likely to work in the “informal” sector, in the most precarious jobs with the lowest wages). A term growing in popularity is “equity”: a move towards equality. It amounts to “empty rhetoric conserving a regressive status quo”, without changes in institutions which allocate resources and economic opportunities. Equity Promises. 138 Paul Martin & Soraka Iyer of the Third World Network argues that the World Summit shows that world leaders are “isolated from … global poverty” and “appear … immune” to “mass mobilizations.” Deen, supra note 69. The Director of the U.N.’s Millennium Campaign, Salil Shetty, fears that the 2015 M.D.G. targets won’t be met as a whole, “not even in 100 years.” World Must Act to Alleviate Crippling Debt and Rampant Poverty, Leaders Tell U.N. Summit, U.N. NEWS CENTRE, Sept. 15, 2005 (Progress on meeting Target 1, halving poverty, is relatively good but “masks huge disparities across and within countries and regions”, and the low or inappropriate quality of aid, id. This admitted progress on Target 1 is actually small in comparison with the global availability of human, financial, and technical resources. Baker, supra note #124 and #128, citing the 2005 UNDP Human Development Report. Hussain, supra note ___: thus was the original purpose of the Summit subordinated to political and security interests. See NGO (to the same effect). However, the Summit “clearly created stronger support” for developed countries contributing 0.7% of their GNP for development aid, created innovative means of financing: e.g., a small tax on airline tickets. Deen, Lost-Sum. The World Summit outcome document did declare that gender equality, HIV/AIDS, and reproductive health must be kept at the top of the global agenda. Deen, Giant. The Summit also set up an International Financing Facility, to make development aid more predictable and accessible. #24; 2005 World. 139 Robinson, supra note 72.

for the twenty poorest countries. This number would go as high as 38 countries, but Kenya for example is deemed to have a “sustainable” debt burden. The G8 action can be regarded as a follow-up on previous ‘advanced poker’ rounds of winning a partial debt forgiveness for the poorest countries, even though such steps violate the IMF’s “uniformity of treatment” rule. Nothing was done about the fair amount of this debt that was used corruptly to finance elite lifestyles in the poorest countries, or about the economists’ “moral hazard” for the future: having had past debts forgiven, elites are likely to create new debt and use it inappropriately, in the expectation that the new debt will be forgiven as well.140 Instead of simply forgiving it, the debt could have been (but wasn’t) converted into supervised programs to finance the pursuit of M.D.G. targets. G8 countries will likely debit this debt relief from the development aid they otherwise intend to give and, only one month after the Summit, at a WB meeting, they fell to quarreling (reverted to an ordinary, 0-sum poker) over who pays what, who is eligible for relief, and which conditions will be attached. Belgium, Holland, and Norway fear that the costs of this debt abatement will not be fully funded by the G8, leaving the IMF and the WB with too little income to function.141 In other words, these international organizations “swapped the risk that poor countries will not repay their loans for the risk that rich countries will not redeem their promises.”142

Many in the Third World would find a mixed blessing (rather than, say, a disaster) in the IMF and the WB having too little income to function. Developing countries see their under-representation in these international agencies as diminishing agency significance, and as fueling the need to circumvent them through, e.g., the G8 assumed to be more sympathetic—even though developing countries have no formal representation there. Strict IMF and WB policies are seen to curb development and democracy: politicians and bureaucrats must respond to these organizations’ strictures rather than to local electorates. An NGO study shows that, of the 308 IMF and WB policies imposed on fifty countries, only eleven policies diverged from the “Washington [Reaganite, neoclassical economics] consensus” of strict monetary and fiscal policies, deregulation and privatization, and the premature opening to an international competition of capital, financial, labor, and product markets in developing countries.143

Large WB projects in developing countries are bonanzas for multinational corporations and corrupt local politicians, but they do little for the poor—other than evict them from subsistence lands. More than 70% of WB loans go to as few as twelve middle-income countries, countries able to meet their capital needs through private

140 Posner, supra note 8. See notes #94; #100; #132; Bad Loans. The G8 countries are Russia, Britain, France, Germany, the U.S., Japan, Italy and Canada. Philip Thornton, Rich Nations Finally Give Go-Ahead to Long-Awaited Agreement on Debt Relief, THE INDEPENDENT, Sept. 27, 2005. 141 See supra note 140; Atara, supra note 127. 142 Bad Loans, supra note 140. 143 World Bank/IMF Losing Relevency, South Says, I.P.S., Sept. 23, 2005; Sanjay Suri, Straight Talk Expected at Post-Helsinki Roundtables, I.P.S., Sept. 12, 2005 (Schifferes).

markets. This pattern is likely to continue—with WB President Wolfowitz recently touting a mega-project to supply electricity to Congo, Malawi, Zimbabwe, and South Africa—despite the consensus that small projects better meet the needs of the poor, especially in water and energy and especially if the projects are made accountable to their ostensible beneficiaries. Like his predecessor, Wolfowitz pays lip-service to such projects and virtues. A Dutch M.P. notes that parliamentarians must inform themselves and apply extra pressure to countries and the WB—so as to keep their games honest. The story is much the same for the IMF. Asian countries have accumulated huge foreign exchange reserves, in part so they don’t have to go begging to the IMF. Argentina defaulted and otherwise took a hard line against the IMF and private creditors, yet this resulted in only a three-month depression. Argentina amounted to a huge loss of IMF influence, a bluff well and truly called on the cut-down-to-size IMF leader of a “creditors’ cartel” of other multilateral creditors, rich countries, and the private sector. The Group of 20 (G20) rich and developing countries describes the need for the IMF to improve governance, strategy, and operations, and to reform their quotas (which govern particular countries’ capacity to borrow.) The IMF seems to understand the need to increase its legitimacy through such reforms, plus expanding developing country influence in the IMF, introducing transparency, and forbearing from attaching stability- and development-endangering conditions to IMF loans.144 We shall see. The legally-guaranteed separatism of the IMF and the WB, which are accountable (pro rata) to the countries providing loan funds, and of the World Trade Organization (WTO), accountable to its 148 members, means that global development policies are not integrated or coordinated by the Secretary General, the World Summit, or anyone else. The Doha Round of the WTO negotiations (lodged in quasi-authoritarian Qatar, to minimize anti-WTO demonstrations) has regularly been on the brink of collapse since 2003, with too much finger-pointing (insignificant bets, perceived as such) and too little leadership (as the poker metaphor leads us to expect). Doha is the first real chance for developing countries to engage in trade negotiations that might enhance their economic growth, reductions in poverty145, and perhaps curb some of the market fundamentalisms of the previous, Uruguay Round. Three main ‘games’ are being played separately and together in Doha, inconclusively and over long periods: (1) liberalizing farm trade, the most distorted of global trade sectors; (2) liberalizing trade in services, chiefly in the banking, medical, and accounting sub-sectors; and (3) decreasing industrial tariffs, measures which the E.U. in particular is keen for developing countries to implement. These seem to be negative-sum poker games: meager winnings by developed countries do not seem to wash their losses, while developing countries are hanging in there as of this writing, but with their betting resources dissipated. The clearest example of an ordinary poker occurs in negotiations over liberalizing trade in services. These have led to decentralized results, with different

144 Atara, supra note 127; Balls and McGregor; Hart & Pottinger; Lachman; Schifferes, supra note ___; Weisbrodt; G20 Nations. 145 Farmer’s Friend; In the Rough. See Martinez (as of Oct. 2005, the Doha process is already two years behind schedule).

countries betting on different deals in what amounts to separate games. This would also be the outcome from a total collapse of the Doha Round, with rich countries able to pick off poor ones one-by-one (i.e., “bet” more than poor countries can afford to “call”) while creating bilateral trade treaties. ‘Advanced poker’ is structured to avoid such a collapse and thereby stay within the broader Doha “game” geared toward fairer and more broadly acceptable rules (rather than a simple Uruguay Round rush to further liberalizations), if the poorer countries can only find their way back to this ‘advanced poker.’ The apparent Doha deadline is mid-2007, when President Bush’s “fast track” authority ends: i.e., the Senate must vote to ratify the Doha agreement or not until mid-2007, without introducing protectionist amendments that favor particular constituents.146 Middle-income countries like Brazil and India refuse to budge on (2) services, and especially on (3) industrial tariffs, where they want to protect fragile local industries, absent significant progress on (1), their access to the agricultural markets of developed countries. Annual farm subsidies amount to $19 billion in the U.S. and $75 billion in the E.U. (with protectionist Japan hiding behind these major players), locally-popular barriers which are difficult for agricultural products from poor, developing, and even middle-income countries to leap over. The U.S. bet significant farm subsidy reductions in an ostensible attempt to break the Doha gaming deadlock, but the E.U. (and especially France) refuses to match (or “call”) the U.S. bet. The U.S. can thus be said to have “called” the E.U.’s “bluff” over development being a “core” value (or source of prestige) within E.U. foreign policy. But it is widely known that Congress is unlikely to underwrite the U.S. Trade Representative’s bet. It is even reported that the 32 poorest WTO members have had trouble agreeing on a common position, despite their not being required to make concessions during negotiations.147 At the December 2005 Hong Kong Summit, expectations were low that a meaningful framework agreement for the Doha Round would be created. Philip Bowring gave this Summit a low but not failing grade, since it showed developing countries to be more dedicated trade liberalizers than are their developed counterparts.148 NGOs like Oxfam and Greenpeace were very critical, and the behavior of demonstrators—mostly

146 See Ragavan, In The Rough, supra note ___; The Trade Game (using two party, one issue game, discussed in notes ___ and accompanying text, supra, to model the Doha Round). The WB estimates the (scaled-back) benefit of a successful Doha Round to developing countries at $20-30 billion per year. But see also Arndt, supra note ___ (one study shows projected benefits and adjustment costs to be relatively small in Mozambique); Filo & Harridge (a successful Doha’s “positive but rather small” effects on the structure of poverty and income distribution in Brazil). 147 Beattie, Poorer; Bianchi, E.U. Lender; French Monkey (France has bullied E.U. partners into a “trade cowardice”); id. (Does France want the “unilateralist” blame for entrenching poverty?); Stopped Clock. See Beattie, Ct; The Trade Game, supra note __. The existing WTO Agreement on Agriculture has Special safeguards provisions (special import restrictions for certain types of “emergencies”) which developing countries would like to prohibit developed countries from using. 148 Philip Bowring, Silver Lining in WTO Talks, INT. HERALD TRIB., Dec. 19, 2005. See Don Lee, Delegates Eke Out a Trade Deal, L.A. TIMES, Dec. 19, 2005 (a Hong Kong failure would have damaged WTO credibility while it contends with the proliferation of bilateral trade agreements, growing global economic imbalances, and growing protectionist sentiment in developed countries).

South Korean farmers—was mirrored inside the hall by E.U. representatives. 110 developing countries united in a historic first for the WTO, in an effort to make the Round the development round it was supposed to be. Their efforts failed, since no meaningful access to the agricultural markets of developing countries resulted. Developed countries agreed to eliminate agricultural export subsidies by 2013 (by 2006 for cotton), but export subsidies are a small fraction of total U.S./E.U. farm subsidies. Their quotas and tariffs will be done away with in 2008 for the 50 least developed countries, but the U.S. has already said that it will likely exempt textiles and apparel from this abolition. Developing countries hope to recover ground lost in Hong Kong by influencing drafting committees and entering into plurilateral negotiations over agreements on agricultural market access—with services as the new battleground of negotiation.149

To provide counterpoint to this Doha/Hong Kong quasi-anarchy, and to round out the picture of multilateral development efforts, the World Summit also called for the reform of the Economic and Social Council (ECOSOC), and implementation of the Hyogo Framework to reduce disaster relief response times, improve disaster prevention measures and early warning systems, and secure more food supplies for disasters which are less tied to donors’ conditions. The global response to the South Pacific tsunami seemed adequate, with the U.N. playing an important but far from exclusive role because the U.S., Australia, and a few others doubted U.N. efficiency, but hurricanes in Central and South America, famine in Niger, and the earthquake in Kashmir illustrate donor inattention and “fatigue”, and a shortage of U.N. resources. Such disasters will negate development efforts in affected countries for many years to come, unless creative programs and a great deal of money are forthcoming. The new High-Level Commission for the Legal Empowerment of the Poor, apparently not considered by the World Summit, has Hernando de Soto and Madeline Albright as co-Commissioners. It is likely to not be a mere substitute for doing something: de Soto’s legally-defined property rights ‘movement’ is increasingly accepted as the best means of transition from an informal economy and into a measure of entrepreneurship. There is currently $9.3 trillion worth of unregistered land and equipment worldwide, which can be levered into additional wealth, security for loans, etc., through registration and the other means that the Commission will consider.150

The Games Continue In the wake of the World Summit, the new General Assembly (G.A.) President, Eliasson of Sweden, said members were busy mapping negotiating positions (as you 149 Id.; Gustavo Capdevila, Back to Work in the WTO, With Empty Hands, I.P.S., Dec. 30, 2005; Lee, supra note 148; Ramesh Jaura, Historic Union in Hong Kong, I.P.S., Dec. 16, 2005. See id.: (The 50 least developed countries, 34 of which are in Africa, hold 12.5% of world population but account for only 0.5% of world trade). 150 Chaufen; U.N. Calls. The U.N.’s emergency relief coordinator, Jan Egeland, proposes additional reforms: a central fund (to which the U.S. will not contribute) and other ways to leave relief less “overstretched.” Imogen Foulkes, U.N. Urges Disaster Response Reform, BBC NEWS, Nov. 23, 2005, 01:33 GMT.

might expect, structuring new poker games in effect), and dealing with matters that take precedence: setting up the Peacebuilding Commission and the Human Rights Council that must be in place by the end of 2005[!], and with a terrorism convention to be finished by the end of the current G.A. session in September 2006. The crucial definition of “terrorism” continues to be contentious, with some members continuing their efforts to protect the rights of self-determination and to resist occupation that some opponents see as “terrorism” among, e.g., Palestinians. In late November, a speech by U.S. Ambassador Bolton gave the U.N. “its usual warning” from the U.S.: ‘Do what we say or we will send you into oblivion.’151 Annan’s comment is “I am not the interpreter of Ambassador Bolton”, and an American reader of the Bolton-ian tea leaves sees the U.S. continuing to seek “multilateral cover for unilateral and illegal U.S. interventions….”152 As 2005 drew to a close, the U.N. could not approve its 2006-07 budget because of the implicit U.S. threat to withhold funds if members do not enact the “radical” reforms the U.S. seeks, especially in administration. (The occurred after the U.S. was rather disengaged from the September World Summit that created so much “fudge and mush.”) Jeffrey Laurenti attributes this stance to Bush’s “foreign policy schizophrenia”, also termed his “bipolar” isolationism.153 The Group of 77, discussed in the next paragraph, refused to rush into decision under threats from U.S. neoconservatives, taking the position that later reforms can be paid for under supplementary budgets. This led Bolton, that comfortable contrarian who reportedly “speak{s} power to truth,”154 to propose a three-month budget, and that the U.S. could and would solve global problems by turning to mechanisms other than the U.N.’s. A two-year budget was approved unanimously late in December, with a spending cap (backed by the U.S., the E.U., and Japan), that runs out in about six months unless reforms are adopted, reforms which Annan would restrict to those passed by the September World Summit.155

151 Thalif Deen, U.N. Faces New Political Threats From the U.S., I.P.S., Nov. 23, 2005 (quoting Global Policy Forum’s Jim Paul, who apparently paraphrases Bolton). 152 Id. (quoting Annan and Institute for Policy Studies’ Phyllis Bennis respectively). See General Assembly President Outlines Progress on U.N. World Summit Issues, U.N. NEWS SERVICE, Nov. 17, 2005 (read off <un.org/news>) (quoting and citing Eliasson). The U.S. seeks to disempower the G.A. and make Annan’s successors accountable to Washington as “glorified CEOs”. Deen, U.N. Faces, supra note 151 (quoting Bennis and Paul). Many of the Secretary-General’s top staff has been replaced by active supporters of the U.S. agenda, but Annan has retained some independence nonetheless. Id. (quoting Bennis). The net effect is more belligerent but otherwise not very different from Clinton’s “assertive multilateralism”, where Madeline Albright famously called the U.N. “a tool of American foreign policy.” Id. (quoting Bennis). 153 Jeffrey Laurenti, Schizophrenic Administration Heightens U.S. Isolation, MAXIMS NEWS NETWORK, Dec. 29, 2005. 154 Id. 155 Thalif Deen, U.N. Threatened With Budgetary Showdown, I.P.S., Dec. 21, 2005; Maggie Farley, U.N. Hit By a Bolt From the Right, L.A. TIMES, Dec. 23, 2005; Warren Hoge, Official Says American Delay of U.N. Budget Would Cause Crisis, N.Y. TIMES, Nov. 30, 2005; Edith Lederer, U.S. Stands Alone in the U.N. Budget Demand, SEATTLE POST-INTELLIGENCER, Dec. 2, 2005, 7:03 P.M.; Laurenti, supra note 153; Betsy Pisik, U.S. Budget Plan for U.N. Criticized, WASHINGTON TIMES, Nov. 30, 2005; Mark Turner, U.N. Risks Severe Financial Crisis Over Threat to Block Budget, FINANCIAL TIMES, Dec. 4, 2005; Editorial: Blocking

From the other side, the 132-member Group of 77 developing countries, plus China, is holding up work on the Human Rights Council (along with a smaller group of repressive regimes which fear being called to account) because Bolton wants the Council. The G77 is also protesting a cost-cutting shrinkage in Palestinian programs, and provoking showdowns, with the U.N. Secretariat over administrative reforms and over who will be Secretary-General Annan’s successor. Annan will establish a Rule of Law Unit in the Secretariat, and order a review of several G.A. committees which he thinks have outlived their usefulness and mandates concerning, e.g., management and the budget of the U.N. secretariat. He thinks “misunderstandings” led to the G77 charge that he was engaged in a “grab for power”; it is the U.N. members’ “prerogative to decide what should be cut and what should be rejected.”156 Annan then accused the G77 of interference in day-to-day Secretariat operations, and of violating the U.N. Charter by politicizing the Secretariat. The G77 fears that reforms will be funded by transfers from human rights and development programs. World Health Organization employees threaten a work stoppage to protest reorganization plans, despite threats that this will lead to their being fired.157

In other words, business (or ordinary poker) continues as usual at the U.N.: the lack of public information and advocacy, plus the chronic preference for a narrow and short-term self-interest, leaves almost all of us, including most World Summiteers, unable to see an admittedly complex “big picture.” This picture can usefully be defined as the need for active pursuit of Annan’s interdependent “four pillars” of peace, security, development, and human rights. Pursuit or non-pursuit of these pillars will affect almost everyone in the long run, and a failure to recognize and deal with this fact could reverse the trend toward world civilization. As Tony Blair argued, we need a better understanding of how self-interest and mutual interest are inextricably linked.158 Improved cooperation, described here as a commitment to the liberal internationalism rules of a sustained ‘advanced poker’, enables the players to draw (and bet on) simultaneously self- and mutually-interested links among development, trade, security, human rights, environmental protection, migration (a major concern in the U.S.

Reform at the U.N., N.Y. TIMES, Dec. 2, 2005; U.N. Members Approve Two-Year Budget, CBS NEWS, Dec. 24, 2005 (read off <CBSNews.com>). 156 Thalif Deen, U.N. Chief Denies Making a “Grab for Power”, I.P.S., Nov. 22, 2005. Thalif Deen, Developing Nations Fault U.N. Reform Plan, I.P.S., Nov. 10, 2005; Deen, Move to Shrink Palestinian Programs Spurs Protest, I.P.S., Nov. 30, 2005; Colum Lynch, Campaigns to Succeed Annan at U.N. Are Underway, WASHINGTON POST, Nov. 26, 2005, A22; U.N. Members Approve, supra note 155. 157 Deen, U.N. Chief, supra note 65 (quoting Annan). See Andrew Jack, WHO Staff to Stop Work Over Shake-Up, I.P.S., Nov. 30, 2005; Pisik, supra note 155. 158 Farley, U.N. Reform, supra note 65; M.S. Haq, President Bush’s Address at the U.N. Has Made the World’s Poor More Hopeful, THE [BANGLADESH] NEW NATION, Oct. 2, 2005, 11:37 (an excellent article); Frederick Studemann, Blair to Call for Global Trade Agreement, FINANCIAL TIMES, Nov. 13, 2005, 22:00; Can Its Credibility Be Repaired, THE ECONOMIST, Sept. 10, 2005, at 30. Annan is fond of “pillars”: cf. his 3 pillars, note 120, supra.

and E.U.), etc. Hurricane Katrina showed Americans that cooperation is needed to reduce feelings of job insecurity and of vulnerability to disaster and violence; and also to deal with corrupt, fragile and/or incompetent governments. The poorer the nation, the more likely is a plague of violence which reinforces poverty and the other evils that operate to deny a human dignity. Even President Bush spoke of a “moral duty” to recognize interrelatedness and the need to cooperate (admittedly, to pursue his anti-terrorism strategy), during his September 2005 speech to the World Summit. For most other countries, the U.N. is a necessary, often the most competent, partner for the pursuit of vast, interrelated responsibilities. This is why World Summit failures on non-proliferation, human rights, and development, and the partial successes concerning intervention and administrative reforms, are so tragic. Peacebuilding is the only genuine Summit success, and the paucity of useful proposals concerning terrorism and the composition of the Security Council mean that lack of progress in these areas is a good thing. The Summit at least offers a starting point for continued reforms, if members can understand Summit failures and develop the will to achieve consensus-by-compromise. As Annan remarks rather optimistically, “reform is a process, not an event.”159

REMEDIES?

The once-in-a-generation opportunity for wholesale U.N. reform160 at the 2005 World Summit having mostly failed, what are the prospects for piecemeal reforms in the future? The answer is both “excellent” and “poor.” Governance without a government creates many outcomes “balanced between no longer and not yet,”161 and a consensus over smaller changes to this unwieldy state of affairs is easy to achieve in theory. But there is little basis for negotiation (game-playing) without a fairly large number of significant proposals on the table, to trade off against each other. Otherwise, with relatively little to lose, major players and coalitions of minor ones, easily manipulate (usually veto) new negotiated legal orders (rules which require a strong consensus to take effect), especially by changing the game from ‘advanced’ to ordinary poker—as has been argued. Reforms are especially unlikely so long as the world’s hegemonic power (the U.S.) provokes determined opposition by so easily and regularly setting international laws aside whenever its short-term interests are perceived as advanced by such a play. This tactic cannot long endure within a rational international politics, however: along

159 Farley, U.N. Reform, supra note 65 (quoting Annan). See Stefania Bianchi, E.U. Presents its Plan for the Poor, I.P.S., Sept. 21, 2005, 03:23 GMT; Alston, supra note 117, at 826; Holland, supra note __; Kessler, supra note 23; Mitchell, supra note 75; Ward, Frechette, supra note 47. 160 But see Robert Samuelson, Seduced by ‘Reform”, WASHINGTON POST, June 2, 2004, A25 (“reform” is “a public relations tool—a convenient label” slapped on “proposals to claim the high moral ground.”); id. (self-labeled reformers “aim to stigmatize adversaries as nasty, wrongheaded, selfish or misinformed.”). These are tactics widely used at the U.N. 161 LUHMANN, OBSERVATIONS, supra note 17, at 66 (discussing outcomes from a multiplicity of his “subsystems” which are arguably like the U.N. “family”—note 1 and accompanying text, supra). See OBSERVATIONS at 18, 27.

with Europeans, the U.S. benefits the most from a stable and functioning international legal order.162

A useful metaphor for discussing feasible smaller reforms is based on the Fasces deployed in Republican Rome—and also in Imperial Rome and Mussolini’s Italy (hence “fascism”), alas. The Fasces is a bundle of sticks, with each stick representing an aspect of governance. The sticks are bound together with leather straps and an axe head is inserted at the top—to represent coercive capacities. Each member of the U.N. “family” would have a different Fasces, reflecting the different aspects of governance they possess, but none of these Fasces have enough of the right kind of sticks to reflect a government. Apart from the Security Council’s under circumstances that rarely obtain, the axe heads are variously small and dull for each U.N. organ, reflecting modest capacities in the areas of implementation and enforcement. The point is that particular governance reform sticks, and even better axe heads, can be added to particular U.N. Fasces without raising the spectre of a global government, and with little observable effect on nation-state sovereignty. For most economists, a world government would create unbearably high agency costs (given a global heterogeneity of preferences) and enforcement costs. Such costs would likely negate the welfare gains such a government would create. The steady centralization of nation-state power that followed the 1648 Treaty of Westphalia is now being reversed, as variously predicted by Kant’s “Perpetual Peace” (1795), Marx’s “withering away of the state” and Bertrand Russell in the 1060s. Sovereign equality has always been implausible, and the Westphalian system of self-help had to be tempered by (‘advanced’ poker) rules and institutions, to avert disasters as conflicts grew more deadly over time. National governments increasingly share power with multinational corporations, other NGOs, and globalized markets, as well as with international organizations. Even so, the nation-state remains the only institution with an automatic right of membership in the world community—as a “player.” Any theoretical loss of an increasingly-theoretical sovereignty due to small U.N. reforms is unlikely to be noticed, much less attributed to small U.N. reforms.163 (Even American neoconservatives are not vigilant in this regard.) Smaller reforms can be described as the constitutionalization of particular practices, to further entrench a liberal internationalism (or ‘advanced’ poker). There are

162 Clare Short: Depression and Mistrust Prevail at the U.N., THE INDEPENDENT, Sept. 16, 2005; (quoting Clare Short); Coate, supra note 1. See note 70 and accompanying text, supra (Mark Malloch Brown, on the indispensability of reform coalitions). See also Brinkbaumer & Mascolo, supra note 79: “a morally-oriented international community did not exist before the Asian tsunami of 2004. {A}fter … three months of solidarity, everything returned to normal. Id. 163 Coate, supra note 1; Peter Drucker, The Global Economy and the Nation-State, FOREIGN AFFAIRS, Sept./Oct. 1997 (all FOREIGN AFFAIRS articles are read off <cfr.org>); Jessica Mathews, Power Shift, FOREIGN AFFAIRS, Jan./Feb. 1997. See Posner, supra note 8 (while the status quo will likely prevail, moderate legal revisions are possible); Yoo, supra note 8 (despite the “almost inviolable” U.N. Charter presumption of state sovereignty, states must—except in the case of self-defense—delegate the use of force to the U.N., in “a law enforcement paradigm”). But see Posner: the collective action problem of decentralized enforcement is often solved through a self-help.

costs to forming each constitutional consensus of course, but fundamental ‘game’ changes may make a consensus easier to form. Through new treaties, modifying old ones, or confidently proclaiming new customary international laws—an unwritten constitution—the constitutional goals should be to expand rather than foreclose opportunities, through broader and more open channels of communication. Information would then flow more widely to players and the public, and rapid global changes could be embodied in legal changes more accurately. Adding escape clauses judiciously, and new means of buffering widely, would reduce tensions among the players.164 An excellent article by Joel Tractman165 explores the most thoroughly-constitutionalized of the U.N. family, the World Trade Organization. He finds six constitutional dimensions, which are necessarily interrelated and related to WTO members’ desires and domestic constitutions: an economic governance of exchanges of value and authority; an integration of many (but not all) social values; a political reflection of the “cultural and democratic integrity of a group”; a legal definition of the scope of legislative, judicial (I would substitute dispute resolution), and social interaction processes; a human rights limitation on nation-state authority; and a redistribution founded on social solidarity.166 I would argue that the combination of WTO structures and members’ desires operates to emphasize economic growth at the expense of the functions of human rights, redistributive/labor, and environmental constitutions. As reformulated, Tractman’s approach arguably serves as a (perhaps too complex) template for the further constitutionalization of other U.N. agencies. Better monitoring techniques/institutions would reduce collective action problems by reducing the opportunism of hidden agendas and ploys (i.e., cheating at poker). This, plus substantive means for fleshing out and incentivizing an enlightened, longer-term self-interest, would enhance the cooperation on which an ‘advanced’ poker depends. Constitutionalization turns mere voting into an abandonment of the survival of the fittest, into some value system which goes beyond a simple welfare (or warfare) maximization by and for elites. Under pressures on the U.N.—through NGO “audits” of various agencies and (inevitably partial) mobilizations of public opinion, but not by the 2005 World Summit that (perhaps inevitably) left the powerful Security Council in its oligarchic place—this value system slowly evolves in democratic directions. Inclusion, participation and, less directly, transparency, accountability, and distinctive sources of legitimacy, spawn a growing resistance toward the exclusionary games of ordinary poker. But democratization is only in its infancy at the WTO, the IMF, the World Bank, etc. Democratic tendencies do not necessarily generate respect for minority rights (a weaker form of self-determination), and democratic tendencies can also generate unpredictable, incoherent and, as in Serbia, illiberal outcomes. Despite such potential defects, the popularity as well as the importance of these artifacts of an international democracy suggest that, with creativity and courage, the General Assembly could use them to 164 See JACKSON, supra note 19, at 120-21, 216, 350, 355, 445-46, 459. 165 Joel Tractman, The WTO Constitution: Toward Tertiary Rules for Intertwined Elephants (2005) (S.S.R.N. Paper No. 815764). 166 Id. Tractman properly treats the WTO as “semi-autonomous”, a characterization which requires complex analyses of the rest of the U.N. law and of domestic constitutional orders. Id.

reclaim its place as the most important U.N. body. Democratization faces more opposition that does a ‘mere’ constitutionalization, from major players (perhaps excluding the U.N.) that deem unaccountability and poker-like secrecy as essential to pursuing their elaborate schemes. For this reason, the collectively quite powerful minor players and most NGOs support democratization as a partial equalizer for the major players’ wealth and power.167 As mentioned before, the complexity, instability, uncertainty, and incoherence of much of the international law that revolves around the U.N. family does not stem from an international anarchy. Rather, it is characteristic of the governance without government that has been modeled here as outcomes of the leaderless, self-organized “ordinary” poker games. The players’ interest gets exhausted over who wins and who loses what and when, with little attention being paid to coordination of the outcomes. Integration of the unwieldy and unevenly-developed international law rules seems more difficult than a constitutionalization and even a democratization. Greater cooperation (more of an ‘advanced’ poker) is essential, and the World Wide Web offers one model of how this could be accomplished: relatively few rules which (almost) everyone can support because they permit diverse content, and few nodes but many links which can be ‘Googled’ to solve legal disputes and other problems. John Jackson offers a legal frame for such a model: “plurilateral” agreements, which integrate an economic globalization with environmental concerns, for example.168 Agreements could also integrate economic globalization with human rights, self-determination with other human rights, etc. With sustained advocacy from NGOs, such agreements could form the base of a pyramid of international law among the willing, with increasingly-general integrations emerging at the higher levels of the pyramid. However, this is open to the criticism that it reverts to the “a la carte” international law that multilateral agreements are designed to avoid, and it is thus unlikely that such agreements would even generate a customary international law. A fuller integration presumably requires a powerful specialist agency, a Global Law Organization. Akin to a treaty-based WTO, this GLO could manage “trade” (and tradeoffs) in law, by integrating the diverse values created through a decentralized rule- 167 Alston, supra note 117, at 790-1; Monique Chemillier-Gendreau, The Alternative U.N, LE MONDE DIPLOMATIQUE, Sept. 2005; Thalif Deen, U.N.’s Authority Tested By Perils Ahead, IPS, Dec. 27, 2005. See JACKSON, supra note 19, at 216; LUHMANN, LAW, supra note 17, at 304, 347; WALZER, supra note 33, at 180-81; Alston, at 811 (discussions of participation which are not tied to a concrete law or policy are, “hollow and tokenistic”); Ignatius, They’re Not, supra note 37 (quoting the leader of Egypt’s Muslim Brotherhood) (the U.S. wants democracy only as an “artistic decoration”, since truly fair elections would threaten Israeli and U.S. interests); Adrian Karatnycky, Zigging and Zagging Toward Democracy, WASHINGTON POST, Nov. 15, 2005, at A21 (durable domestic democracies maintain the discipline of nonviolent civic action and are led by broadly-based civil coalitions which force splits within the ruling elite and its security forces); Marincola, Summit Ignores, supra note 68 (quoting Antonio Papisca) (“It is impossible to speak of international democracy and democratisation within making reference to the institutional spheres in which they can actually be pursued.”); Tractman, supra note 165 (discussing the “democracy deficit” at the international level); Democracy’s Ten-Year Rut, THE ECONOMIST, Oct. 29, 2005, 39-40 (“Latin Americans do not want to go back to their dictatorships but they are still unimpressed with their democracies.”); id. (only 26% feel they “are equal before the law—the same number as in 1998.”); id. (mistrust of political institutions leads Latin Americans frequently to take to the streets); note 29, supra (collapse of Bush’s democracy initiative in the Middle East). 168 See notes ___ and accompanying text, supra.

making169, as well as through constitutionalization, democratization, and new checks and balances (if any) as well. Adapted from Montesquieu, checks and balances are an American and (somewhat) French curb on the powers of governance, and an alternative to a concentration of powers—the monarch in Parliament under the British model, for example. It can be convincingly argued that (almost all) U.N. powers are too weak to require additional checks and balances that increase the costs of forming a consensus; things are unlikely to “get out of hand” in the future. This is because a fair number of informal checks and balances already exist: means of settling disputes peaceably; practices that screen out much of the abuse that would otherwise occur, through generalized injunctions of cooperation (conducive to an ‘advanced’ poker); and (modest) restraints on the use of a naked wealth and power. The most notable check would be called “federalism”, if government(s) existed at the international level.170

As ‘players’ wealthy multinational cooperations, other major NGOs, and nation-states, channel and condition the creation of international laws through their game-plays. Probably as a necessary concession to reality, major players can veto many (game-) initiatives. To the extent that nation-state (and some NGO) policies are indeed devised democratically, this lends an indirect democracy to international processes. A few U.N. reforms spelling out relative competences could reinforce the “subsidiarity” principle that aids in the management of complexity: assign a task to the lowest level of governance that can most efficiently and humanely perform it, given that governance level’s degree of development. International action should thus be, and largely is, reserved for those things where various levels of the relevant nation-states cannot or will not act: “externalities”, where these states are concerned. Some of these externalities could be tamed by restraining the White House, if possible and necessary, and by a Global Law Organization (supra) which eliminates multiple legal overlaps. To the extent that the distinction can be drawn, the politics of these externalities is for the members, and the administration (the monitoring, implementation, and enforcement of political decisions) is for the U.N. family that has often avoided accountability for its actions in the past. The most sensitive topics here are empowering poor people and creating an (inevitably modest) redistribution on their behalf, especially in developing countries and where the plight of the poor is generated by the global markets beyond the control of most nation-states.171

169 JACKSON, supra note 19, at 412. See Hirsch, supra note 17; Carlos Vasquez, Trade Sanctions and Human Rights—Past, Present, and Future 6 J. INT’L. ECON. L. 797, 831 (___) (agreements could permit but not require states to impose trade sanctions for human rights violations). But see Andrew Guzman, Why LDCs Sign Treaties That Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 VA. J. INT’L. L. 639, 641, 644 (1998). 170 Tractman, supra note 165. See id. (something like the GLO I propose could watch for imbalances among values within particular U.N. agencies, and seek to impose “redistribution” and human rights norms as expressions of social solidarity and as advancing a new international civilization). On poker game outcomes as the kind of “noise” that can lead to institutional formation or reformation, see TURNER, supra note 106, at 103, 127, 137-39, 146-47, 153. 171 See JACKSON, supra note 19, at 454.

The monitoring, implementation, and the more centralized (based less on a self-help) enforcement of international political decisions require the displacement of governance through ‘advanced’ as well as ordinary poker games, by an institutionalization which is an extrapolation from the constitutionalization discussed earlier. Many U.N. institutions are thin, unbalanced, and thus incapable of promoting “thicker” human rights and developmental rights and duties, as well as promoting legality and justice generally—as solutions to collective action problems.172 Discussing the reasons why customary international humanitarian laws are violated, Abdul Korama describes a mixture of factors: the rules are unknown, known but inadequate, enforcement mechanisms are weak, and law is simply disregarded.173 These are the factors that reformed and thus stronger institutions must work on to reduce the number and seriousness of violations. Pursuing a piecemeal reform process such as described here, we must learn to live with legal and political failures—as we describe them—and expect only small legal evolutions. We have to ask the right questions, use hard-headed analysis rather than a “happy-think”, and take quick advantage of transcendent and incremental opportunities. Above all, we should recognize that much of what we see as necessary or natural is really a matter of choice or context. For example, dignitary human rights mean different things in different circumstances, and the seemingly-unattainable Millennium Development Goals may merely give false hope, ignore the effects of the global distribution of wealth and power, be too selective, not go far enough, fail to attract a sufficient legitimacy to be implemented, etc.

CONCLUSION

This article is no less complex that the global phenomena it tries to describe, phenomena of an insiders’ game—like poker. Rather than try to summarize these phenomena here, we should close with brief thoughts about the future. After the 2005 World Summit, “many critics wrote the United Nations off as an institution so deeply flawed that it was beyond salvation.”174 This article takes a different, more nuanced view: despite political (or poker-playing) flaws, a creaking bureaucracy, and inadequate resources, the U.N. will play a rather uncertain yet critical role in solving global

172 See id. at 275, 411-12, 423; Evans, supra note 48, at 1056; Tractman, supra note 165. But see Evans, at 1062 (calling global “market discipline” a “counter-law” which, I would argue, is nevertheless conditioned heavily by the WTO/IMF/World Bank legal complex). But see also Alston, supra note 117, at 791 (decentralization is required to “enhance poor people’s voice”); Glennon, supra note 19 (“To reduce state miscreance it is necessary to reduce state power; countervailing (decent-concerns such as humanitarianism and state security are simply irrelevant.”). 173 See Monique Chemillier-Gendreau, The Alternative U.N., LE MONDE DIPLOMATIQUE, Sept. 2005; Brown & Benn, supra note 92; Godoy, supra note 66; Posner, supra note 8. Abdul Korama, Forward, in Henckaerts & Oswald-Beck, supra note ___, at xii. 174 Alston, supra note 117, at 762-65; Glennon, supra note 19; Paul & Nahory, supra note 85.

externalities/collective action problems—especially if piecemeal reforms are aggressively pursued. Discussing international economic law while paraphrasing Heraclites, Andreas Lowenfeld argues that “nothing is permanent except change”175, and that most international law of the U.N. is followed most of the time.176 Philip Alston is right to worry that the “U.N. approach of indivisibility” will become a “tautology”177 or perhaps a cliché, yet it currently offers a “big picture” with which to confront nation-state players busy totaling up their poker winnings and losses. Will the U.N. create a “networked world? A Global Neighborhood Watch? Managed Globalization?” Are there other facets “to think about and support an integrated response” from voters and policymakers?178 Through reform, will the U.N. family slowly create freedoms from want and fear, and otherwise preserve our common humanity? Can new collaborative arrangements make better use of everybody’s expertise, and of our other resources, in discovering new opportunities and addressing new threats?179 Some or all of these futures are plausible, but one thing is clear: to change the U.N., “we must change too.”180 The most important and difficult change is to stiffen political will at the nation-state level, to resist the temptation to create law through an ordinary poker—in pursuit of unstable, short-term, and sometimes-misperceived gains—by decreasing the incentives so to defect from ‘advanced’ poker—where incentives must be increased.181

175 Andrew Mack, Peace on Earth? Increasingly, Yes, WASHINGTON POST, Dec. 28, 2005, A21. 176 ANDREAS LOWENFELD, INTERNATIONAL ECONOMIC LAW 43 (____). See Lederer, Global Violence, supra note 54; LOWENFELD, supra note __, at 148. 177 Alston, supra note 117, at 784-85. 178 Anne-Marie Slaughter, The Shadow World, WASHINGTON POST, Oct. 30, 2005, BW6 (reviewing MOISS NAM, ILLICIT: HOW SMUGGLERS, TRAFFICKERS, AND COPYCATS ARE HIJACKING THE GLOBAL ECONOMY). 179 Romulo, supra note __. See Alston, supra note 117, at 772 (quoting Christian Tormuschat): “If human life and dignity are not protected, the idea of a legal order would collapse” —at least in the liberal tradition. Law-as-ordinary-poker is thus dangerous because it is not biased toward dignity-enhancing outcomes. 180 Thoroor, supra note ___. 181 One aspect of law-as-poker is the effect it may have on ethnic or religious identity. Law-as-poker may accelerate the obsolescence of a variety of ‘traditional’ practices, while paying lip-service to diversity, and may render discourse over law—based on John Rawls’s “overlapping consensus” for example—as cheap game-bets no one listens to because legal content does not matter much. See JOHN RAWLS, POLITICAL LIBERALISM (___) (“overlapping consensus”). Sticking your national neck out by assuming a human rights obligation, for example, is often seen as, and sometimes is, a game-bet denoted to winning something quite different. But see Alston, at 809. To give Kofi Annan the last word: “We must find what President Franklin Roosevelt once called ‘the courage to fulfill our roles in an admittedly imperfect world.’” Kathryn Horvat and Pat Shea, The United Nations, 60 Years and Still Counting, SALT LAKE TRIB., Oct. 26, 2005.

APPENDIX: THE MILLENNIUM DEVELOPMENT GOALS AND TARGETS (Alston, supra note ___, at 828-29).

Goal 1: Eradicate extreme poverty and hunger

Target 1: Halve, between 1990 and 2015, the proportion of people whose income is less than one dollar a day.

Target 2: Halve, between 1990 and 2015, the proportion of people who suffer

from hunger. Goal 2: Achieve universal primary education

Target 3: Ensure that, by 2015, children everywhere, boys and girls alike, will be able to complete a full course of primary schooling.

Goal 3: Promote gender equality and empower women

Target 4: Eliminate gender disparity in primary and secondary education, preferably by 2005, and to all levels of education no later than 2015.

Goal 4: Reduce child mortality

Target 5: Reduce by two-thirds, between 1990 and 2015, the under-five mortality rate.

Goal 5: Improve maternal health

Target 6: Reduce by three-quarters, between 1990 and 2015, the maternal morality ratio.

Goal 6: Combat HIV/AIDS, malaria and other diseases

Target 7: Have halted by 2015 and begun to reverse the spread of HIV/AIDS.

Target 8: Have halted by 2015 and begun to reverse the incidence of malaria and other major diseases.

Goal 7: Ensure environmental sustainability

Target 9: Integrate the principles of sustainable development into country policies and programmes and reverse the loss of environmental resources.

Target 10: Halve, by 2015, the proportion of people without sustainable access to

safe drinking water.

Target 11: By 2020, to have achieved a significant improvement in the lives of at least 100 million slum dwellers.

Goal 8: Develop a Global Partnership for Development Some of the indicators listed below will be monitored separately for the Least Developed Countries (LDCs), Africa, landlocked countries and small island developing States.

Target 12: Develop further an open, rule-based, predictable, non-discriminatory trading and financial system.

Target 13: Address the Special Needs of the Least Developed Countries.

Target 14: Address the Special Needs of landlocked countries and small island

developing states.

Target 15: Deal comprehensively with the debt problems of developing countries through national and international measures in order to make debt sustainable in the long term.

Target 16: In co-operation with developing countries, develop and implement

strategies for decent and productive work for youth.

Target 17: In cooperation with pharmaceutical companies, provide access to affordable, essential drugs in developing countries.

Target 18: In co-operation with the private sector, make available the benefits of

new technologies, especially information and communications.

Of the World Trade Court’s Burden

Abstract

Sungjoon Cho Decisions of the WTO tribunal (Court) on sensitive disputes, such as those concerning human health, have often caused resentment from some groups, besides losing parties. Beneath this disapproval against the Court lies an image of a Dworkinian Hercules which capriciously renders its own answers on risks and science. In judging which party should win the case, this Hercules assesses parties’ arguments and evidence on risks and regulatory responses through a technical rule labeled the “burden of proof” (BOP). Yet, the BOP is more of the Court’s burden than of parties’ burden (who to prove) in that the final outcome of the case hinges eventually on those elements which the Court requires parties to prove (what to prove) as well as whether the Court approves that a party has discharged its BOP and allows the burden to shift to the other party (whether to prove). However, the Court, with its judicial authority, employs the BOP in a way which defines and constructs its own version of science to deliver a definite answer to litigants. As long as the Court plays the role of Hercules by handing down actuarial justice on issues of high controversy, such as risks and science, whatever decision it makes will hardly satisfy the parties concerned, at least the losing party, and thus never fully resolving their disputes. If the Court’s own answer (substantive justice) cannot put an end to parties’ antimonial struggle, the Court should contemplate guiding parties to discover the solution between them via constructive regulatory dialogue. In other words, the Court, instead of throwing out its own “right answer” in front of already dogmatic parties, might encourage them to fulfill their dialectical dialogue through talking to, deliberating with, and enlightening each other. This nuanced judicial posture can greatly mitigate any unnecessary adversarial tensions, which will in turn secure a certain space for accommodation or recognition of different regulatory positions. The Court can achieve this new goal by transforming its current substantive hermeneutics over the BOP into a “procedural” one. The Court can lead parties to present different probative evidence, i.e., evidence substantiating the procedural integrity of a measure, from the conventional one, i.e., evidence adduced to prove that the measure was scientifically valid.

PROPOSAL 17

Richard Cole Western New England College School of Law

A Jurisprudence of Human Rights for Contemporary International Law

Human rights have become an increasingly important part of the body of principles of international law since the end of World War II. Nevertheless, there remain numerous issues concerning both the legitimacy and the course of development of internationally-recognized human rights . For example, what are the legitimate sources of human rights (in law, philosophy, religion, etc.)? Who should be able to assert claims of human rights, and who should be held accountable for violations of them? This brief article focuses upon another issue, what can be called the jurisprudence of human rights that can provide a model for the development of human rights in modern international law. Based upon the Enlightenment tradition of natural rights thought, Americans especially tend to view human rights in abstracted, individualized, and absolutist terms.. The paradigm for this is the person in the state of nature endowed with inalienable rights. The jurisprudential result of this view is generally either to recognize a human right claim as absolute, or to totally reject it. There are significant limitations to this approach to human rights. Witness of this point is that it has had, and continues to have, a number of major critics. Further, though in Jefferson’s famous phrase all persons enjoyed rights “to life, liberty, and the pursuit of happiness, which seemingly were absolute, in the reality of American jurisprudence rights have often been applied narrowly.

This article asks readers to consider an alternative view of human rights as a model for the development of human rights in modern international law. It has its modern roots in European moral philosophy, most particularly that of Immanuel Kant, (but the historical roots for this view of human rights are much earlier than Kant, and quite diverse). Pursuant to this view people exercise human rights within communities. They are therefore contextualized, and often limited by the interest and rights of other persons. But European law recognizes a wider array of human rights than does American jurisprudence. This is a view of human rights provides the basis for an appealing jurisprudence for resolving conflicts of claims of right and interests among various persons, groups, and states that avoids the normally either /or nature of the application of rights based upon the natural rights view. It also promises to have a wider appeal worldwide than does the Enlightenment-based conception of natural rights. This conception and application of human rights therefore is worthy of our consideration as providing one framework of legal thought conducive for the development of of a vibrant and practical body of human rights in contemporary international law.

PROPOSAL 20

Jacob Katz Cogan*

University of Cincinnati

COMPETITION AND CONTROL IN INTERNATIONAL ADJUDICATION

Work-in-Progress (Please do not cite or quote without permission)

This Essay takes issue with the standard view among international law and international relations scholars that States have sufficient and effective tools to constrain international courts. Like international organizations generally, international courts have minds and interests of their own. As a result, they can be tempted to expand their powers beyond those provided for in their mandates or by informal expectations. At the same time, international courts are protected from external control because of the principle of judicial independence and because of structural constraints on international lawmaking and institutional reform. This combination of weak external control and imperfect self-control provides international courts with opportunities to exceed their mandates. It also makes States more likely not to consent ex ante to the jurisdiction of international courts, to withdraw from the jurisdiction of courts to which jurisdiction they had previously consented, and to disobey judicial decisions. In other words, weak judicial control mechanisms create weak dispute resolution mechanisms. This is not optimal, as the international system needs more not less opportunities for peaceful dispute settlement. In order to strengthen international courts, we need to think anew about how best to maintain control over them. The answer, though, is not, as some would have it, to decrease judicial independence by increasing direct State control. Instead, this Essay argues that increasing competition among international courts will more effectively constrain international judicial power and, consequently, increase the likelihood that States will recognize and accede to international judicial authority. Competition among courts will also lead to better – and perhaps convergent – decisions. Therefore, in contrast to the received wisdom that international courts should be more respectful and deferential to each other, this Essay claims that such “system-protective” doctrines are counterproductive. Instead of striving for uniformity, we should accept and develop a system of competitive adjudication in international law.

* Assistant Professor of Law, University of Cincinnati College of Law. J.D., Yale; Ph.D., Princeton. I appreciate the comments made on previous drafts by Dan Bodansky, Peggy McGuinness, Ingrid Wuerth, and the members of the International Law Colloquium at the University of Georgia School of Law.

CONTENTS

INTRODUCTION I. CONSENT AND CONTROLII. CAN INTERNATIONAL COURTS BE CONTROLLED BY STATES?

A. External Controls on International Courts B. Limitations on External Controls C. The Limits of External Controls: Independent Courts

III. CAN INTERNATIONAL COURTS EXERT SELF-CONTROL? A. Internal Controls on International Courts B. Limitations on Internal Controls C. The Limits of Internal Controls: Independent Judges

IV. COMPETITION AND CONTROL A Competitive Adjudication B. Limitations on Competitive Adjudication

V. Conclusion: Coherence and Competition

Different and more or less conflicting systems of law, different and more or less competing systems of jurisdiction, in one and the same region, are compatible

with a high state of civilization, with a strong government, and with an administration of justice well enough liked and sufficiently understood by those

who are concerned.

S.F.C. Milsom1

INTRODUCTION

States are increasingly delegating or transferring powers to international

organizations,2 and international organizations are increasingly pushing the limits of the powers conferred upon them. This expansion of powers embraces all areas of international authority – particularly lawmaking and adjudication.3 Recognizing that international organizations have gained this greater role, scholars have begun to think more deeply about the legitimacy, accountability, and good governance of international organizations,4 and States (as well as non-State entities, such as the European Union5 and nongovernmental organizations), knowing what’s at stake, have become more forthright in seeking a seat at the table.6

As the powers of international organizations have expanded, the need to maintain

control of international organizations has also grown. “Control” means checks on the powers of an organization that ensure that the organization acts within its assigned

1 S.F.C. Milsom, Introduction to 1 FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW: BEFORE THE TIME OF EDWARD I at xcv (2d ed. reissued, 1968) (1898). 2 See generally DAN SAROOSHI, INTERNATIONAL ORGANIZATIONS AND THEIR EXERCISE OF SOVEREIGN POWERS (2005). On the constitutionality in the United States of delegations to international organizations, see Curtis A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution, 55 STAN. L. REV. 1557 (2003); Thomas M. Franck, Can the United States Delegate Aspects of Sovereignty to International Regimes?, in DELEGATING STATE POWERS: THE EFFECT OF TREATY REGIMES ON DEMOCRACY AND SOVEREIGNTY 1 (Thomas M. Franck ed., 2000); David M. Golove, The New Confederalism: Treaty Delegations of Legislative, Executive, and Judicial Authority, 55 STAN. L. REV. 1697 (2003); Julian G. Ku, The Delegation of Federal Power to International Organizations: New Problems with Old Solutions, 85 MINN. L. REV. 71 (2000); and Edward T. Swaine, The Constitutionality of International Delegations, 104 COLUM. L. REV. 1492 (2004). 3 See generally JOSÉ E. ALVAREZ, INTERNATIONAL ORGANIZATIONS AS LAW-MAKERS (2005). 4 See, e.g., Daniel Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?, 93 AM. J. INT’L L. 596 (1999); Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 AM. J. INT’L L. 510 (2003); Daniel C. Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 YALE L.J. 1490 (2006); Thomas M. Franck, Legitimacy in the International System, 82 AM. J. INT’L L. 705 (1988); Ruth W. Grant & Robert O. Keohane, Accountability and Abuses of Power in World Politics, 99 AM. POL. SCI. REV. 29 (2005); Ian Hurd, Legitimacy and Authority in International Politics, 53 INT’L ORG. 379 (1999); Benedict Kingsbury, Nico Krisch, & Richard B. Stewart, The Emergence of Global Administrative Law, 68 LAW & CONTEMP. PROBS. 15 (2005); Paul B. Stephan, Accountability and International Lawmaking: Rules, Rents, and Legitimacy, 17 NW. J. INT’L L. & BUS. 681 (1996-1997). 5 On the EU and EC’s attempts to become more active in international fora – and, occasionally, to supplant the roles of its member states – see, for example, Duncan B. Hollis, Why State Consent Still Matters: Non-State Actors, Treaties and the Changing Sources of International Law, 23 BERKELEY J. INT’L L. 137, 155-61 (2005). 6 Cf. John O. McGinnis & Mark L. Movsesian, The World Trade Constitution, 114 HARV. L. REV. 512, 604 (2000) (“[T]here is a sad dilemma at the heart of all constitutions: the more wealth a regime creates, the greater the incentives for interest groups to distort the system to their advantage.”); J.H.H. Weiler, The Transformation of Europe, 100 YALE L.J. 2403, 2411 (1991) (noting how “the closure of Exit leads to demands for enhanced Voice”).

mandate.7 Controls, such as the checks and balances of the U.S. Constitution, are necessary in any system of limited powers. Without them, restrictions, as they appear in an organization’s charter, are liable to disappear, and the organization is likely to take actions either in violation of its allocated authority (the claims of ultra vires and excès de pouvoir)8 or for a purpose for which that authority was not granted (the claim of détournement de pouvoir).9 Depending on their content, such actions could jeopardize the legitimacy of the organization and, conceivably, its very existence. Controls, therefore, are crucial to the successful operation of an international organization; they have greater importance the greater the power given to the organization. This is true whether the international organization (or one of its components) exercises political, legislative, administrative, or judicial functions.

But control is not everything. International organizations need a certain degree of

independence in order to accomplish their tasks, and, indeed, that is assumed by the States that create them.10 Independence – in the forms of autonomy and neutrality – can “enhanc[e] the efficiency and legitimacy of collective and individual actions.”11 The assumption of independence is particularly true for international courts, which, like their domestic counterparts, require independence as a prerequisite of their legitimacy and the successful fulfillment of their responsibilities.12

A tension between independence and control is inherent in all forms of international

delegation, but no more so than with delegation to international courts.13 Courts are accorded independence on the condition that there are sufficient effective controls in place, and controls are tailored so as not to impede too greatly on judicial independence. In some highly developed domestic legal systems, such as the United States,14 the controls are so finely tuned and trusted that courts are allowed powers, in some instances, to negate the acts of other governmental entities (judicial review of legislative and administrative acts) or to develop the law on their own (common-law-making).15 In less

7 See W. MICHAEL REISMAN, SYSTEMS OF CONTROL IN INTERNATIONAL ADJUDICATION AND ARBITRATION: BREAKDOWN AND REPAIR 1 (1992). 8 See id. at 6. 9 See generally J.E.S. Fawcett, Détournement de Pouvoir by International Organizations, 33 BRIT. Y.B. INT’L L. 311 (1957). 10 See Kenneth W. Abbott & Duncan Snidal, Why States Act Through Formal International Organizations, 42 J. CONFLICT RES. 3, 16-23 (1998). 11 Id.; see also Yoram Z. Haftel & Alexander Thompson, The Independence of International Organizations: Concept and Application, 50 J. CONFLICT RES. 253, 256 (2006). 12 See generally Theodor Meron, Judicial Independence and Impartiality in International Criminal Courts, 99 AM. J. INT’L L. 359 (2005); see also Ruth Mackenzie & Philippe Sands, International Courts and Tribunals and the Independence of the International Judge, 44 HARV. INT’L L.J. 271 (2003); Edward Gordon, et al., The Independence and Impartiality of International Judges, 83 AM. SOC’Y INT’L L. PROC. 508 (1989); Symposium, Independence and Accountability of the International Judge, 2 LAW & PRAC. INT’L CTS. & TRIBUNALS 3 (2003). 13 Cf. Jonas Tallberg, Delegation to Supranational Institutions: Why, How, and with What Consequences?, 25 W. EUR. POL. 23, 28 (2002) (“What truly makes delegation a dilemma is the fact that its very rationale may prevent government principals from establishing effective control mechanisms.”). 14 See, e.g., Erwin Chemerinsky, The Price of Asking the Wrong Question: An Essay on Constitutional Scholarship and Judicial Review, 62 TEX. L. REV. 1207, 1251-53 (1984) (describing the external and internal constraints on the U.S. Supreme Court); Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577, 679 (1993) (concluding that U.S. “[j]udges are constrained by the political system that surrounds them”). 15 Of course, the exercise of such authorities by courts in even the most developed legal systems is controversial in particular cases and is rejected by some categorically.

developed systems, such as international law, courts do not have such expansive authorities,16 but their impact is no less great and their role is no less important.

International law scholars have argued recently that we need not worry about the

potential excesses of international courts – and particularly international judicial lawmaking – because existing controls effectively keep courts in check.17 Described variously as “bounded discretion”18 or “constrained independence,”19 these scholars assert that international courts operate in a “strategic space” in which “the political constraint is operating effectively.”20 Consequently, to the extent any judicial lawmaking or innovation has occurred, it has been tacitly approved of by the relevant States, which therefore removes any questions about its legitimacy.21

This Essay takes issue with this assumption that controls on international courts are

sufficient and effective. To the contrary, existing controls over international courts are, in practice, relatively weak. Because of structural constraints on international lawmaking and the intricacies of international politics and diplomacy, States generally lack the ability to correct interpretive errors made by courts,22 and because of the principle of judicial independence, States are unable to direct judges to decide cases in certain ways or otherwise control the substance of judicial decisions. Judges, for their part, naturally have their own interests and are tempted and encouraged to depart from their limited roles in order to expand their own and their courts’ authorities.23 Internal controls are, thus, relatively weak as well. This is not to say, certainly, that existing controls don’t sometimes work or that judges seldom rule in accordance with law. It is simply to point out that controls are not as effective as they are purported to be.

Because States have no obligation to consent to the jurisdiction of international courts

and because States have the ability not to comply with judicial decisions, the weaknesses of judicial controls means that States are more likely to avoid courts, abandon them, or disregard their decisions, potentially condemning courts to irrelevance. In order to

16 See Joel P. Trachtman, The Domain of WTO Resolution, 40 HARV. INT’L L.J. 333, 347 (1999). 17 See, e.g., Allison Marston Danner, When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War, 59 VAND. L. REV. 1 (2006); Tom Ginsburg, Bounded Discretion in International Judicial Lawmaking, 45 VA. J. INT’L L. 3 (2005); Laurence R. Helfer, Why States Create International Tribunals: A Theory of Constrained Independence, in INTERNATIONAL CONFLICT RESOLUTION 253 (Stefan Voigt, Max Albert, & Dieter Schmidtchen eds., 2006); Laurence R. Helfer & Anne-Marie Slaughter, Why States Create International Tribunals: A Response to Professors Posner and Yoo, 93 CAL. L. REV. 901, 942-54 (2005); Richard H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 AM. J. INT’L L. 247, 249 (2004); cf. Mike Burstein, The Will to Enforce: An Examination of the Political Constraints upon a Regional Court of Human Rights, 24 BERKELEY J. INT’L L. 423 (2006); William J. Davey, Has the WTO Dispute Resolution Settlement System Exceeded Its Authority: Consideration of Deference Shown to Member Government Decisions and Its Use of Issue-Avoidance Techniques, 4 J. INT’L ECON. L. 79 (2001). 18 Ginsburg, supra note 17. 19 Helfer, supra note 17; Helfer & Slaughter, supra note 17. 20 Steinberg, supra note 17, at 249. 21 See Danner, supra note 17. 22 Cf. Karen J. Alter, Delegation to International Courts and the Limits of Recontracting Power, in DELEGATION AND AGENCY IN INTERNATIONAL ORGANIZATIONS 312 (Darren G. Hawkins, et al. eds., 2006).23 Cf. Shoaib A. Ghias, International Judicial Lawmaking: A Theoretical and Political Analysis of the WTO Appellate Body, 24 BERKELEY J. INT’L L. 534 (2006); Jared Wessel, Judicial Policy-Making at the International Criminal Court: An Institutional Guide to Analyzing International Adjudication, 44 COLUM. J. TRANSNAT’L L. 377, 450 (2006).

preserve and strengthen international courts, we need to think anew about how best to maintain control over them.

The answer is not, as some have suggested, for States to exert greater direct control

over international judges.24 As others have pointed out, international courts with independent judges serve useful purposes for States by, among other things, “enhanc[ing] the credibility of international commitments,”25 thereby ensuring the relevant “[legal] regime’s perceived legitimacy and continued operation.”26 More State control over judges would consequently be counterproductive. The greater the direct control over judges by States the lesser the utility of those judges and their courts to States.

Instead, this Essay argues that increasing competition among international courts that

has resulted from the proliferation of courts has and will continue to more effectively constrain international judicial power and, as a result, increase the likelihood that States will recognize and accede to international judicial authority. Competition among courts will also lead to better – and perhaps convergent – decisions over the long-term. Though some have acknowledged in passing the possible benefits of competition among courts,27 no one has provided a comprehensive argument in its favor, linked competition with control, or offered a defense against competition’s critics who claim, as Gilbert Guillaume, former judge and president of the International Court of Justice, recently did, that “The law of the market . . . cannot be the law of justice.”28

Part II explains why effective controls are necessary for international adjudication.

Part III argues that States, with minor exceptions, currently do not have effective mechanisms to control international courts once those courts have been established. Part IV looks at internal control mechanisms and asks whether judges can effectively control their own interests in expanding the powers of their courts. Part V contends that the international legal system, as it is presently constituted, is well-suited to competitive adjudication, that such competition can provide an effective judicial control mechanism, and that, on balance, this and other characteristics of competition enhance international dispute resolution. To this end, the Essay concludes with an argument against “system-

24 See Eric A. Posner & John C. Yoo, Judicial Independence in International Tribunals, 93 CAL. L. REV. 1, 7 (2005). 25 Laurence R. Helfer & Anne-Marie Slaughter, Why States Create International Tribunals: A Response to Professor Posner and Yoo, 93 CAL. L. REV. 899, 904 (2005); see also id. at 931-36. 26 Robert C. Hockett, The Limits of Their World, 90 MINN. L. REV. 1720, 1768 (2006) (reviewing JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005)). 27 See Ian Brownlie, The Peaceful Settlement of International Disputes, 7 PACE INT’L L. REV. 257, 276 (1995); Thomas Buergenthal, The Proliferation of Disputes, Dispute Settlement Procedures and Respect for the Rule of Law, 22 ARB. INT’L 495, 497 (2006); Jonathan I. Charney, Is International Law Threatened by Multiple International Tribunals?, 271 RECUEIL DES COURS 101, 354, 361 (1998). 28 Gilbert Guillaume, Advantages and Risks of Proliferation: A Blueprint for Action, 2 J. INT’L CRIM. JUST. 300, 301 (2004); see also The Proliferation of International Judicial Bodes: The Outlook for the International Legal Order. Speech by His Excellency Judge Gilbert Guillaume, President of the International Court of Justice, to the Sixth Committee of the General Assembly of the United Nations (Oct. 27, 2000), available at http://www.icj-cij.org/icjwww/ipresscom/SPEECHES/iSpeechPresident_Guillaume_SixthCommittee_20001027.htm; YUVAL SHANY, THE COMPETING JURISDICTIONS OF INTERNATIONAL COURTS AND TRIBUNALS 127 (2003); Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429 (2003); Gilbert Guillaume, The Future of International Judicial Institutions, 44 INT’L & COMP. L.Q. 848, 862 (1995) (“New courts or tribunals should be created only when necessary. Moreover, one may wonder whether a mechanism could not be devised to avoid divergences of case law.”)

protective” judicial devices such as inter-court deference, and in favor of the establishment of “competition-friendly” procedures. I. CONSENT AND CONTROL

International adjudication is a consent-based system.29 States are under no obligation to consent to the jurisdiction of an international court, and even when they do, they reflect the limits of their consent in the terms of the court’s mandate or (if permitted) in the terms of their accession to it.30 Such limits can stipulate the court’s subject matter jurisdiction31 and any other preconditions on its exercise. The mandates may also limit the court’s procedures, what law the court may apply, and what remedies it may impose.32

Like all organizations with limited mandates, restrictions on international courts

would be meaningless without effective control mechanisms. Controls are common in all successful national constitutional systems. The system of checks and balances in the U.S. Constitution is the most obvious example. Controls can be in the original document laying out the institution’s mandate or evolve over time. They can take on a variety of forms. They can be exercised by coequal structures – for example, separate branches of government – or hierarchically – such as, by a higher court over a lower court. They can be formal or informal. They can be internal or external. Internal controls are those exercised by the institution itself. They are, in other words, methods of self-control. External controls, by contrast, are those effected by outside bodies.

Not all control systems are created equal though. Some are more effective than

others, and some are more desirable than others. Internal controls are more efficient because they eliminate or reduce the costs of correction by external agents, but most legal systems, including international law, contain a complicated and intertwined combination of internal and external controls in order to reduce the risk of control failure and to ensure optimal control effect.

However constructed, controls provide States the comfort they seek at the moment of

consent that an international court will not venture beyond its assigned mandate, and controls continue to provide States the security they require to maintain their consent throughout a court’s existence. The work controls do, in other words, is not only objective – that is, actually establishing limits to judicial action. It is, and perhaps more importantly, subjective – the creation of the perception that courts are acting in accordance with their mandates. It is that perception that allows a risk-averse State to do what it need not do – consent to a court’s jurisdiction. And it is the failure to create such 29 Some argue – with some exaggeration – that international adjudication is moving from a consensual to a compulsory system. See, e.g., Cesare Romano, The Shift from the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent, 39 N.Y.U. J. INT’L L. & POL. (forthcoming 2007). 30 This discussion is based in part on REISMAN, supra note 7, at 1-3; and W. Michael Reisman, The Supervisory Jurisdiction of the International Court of Justice: International Arbitration and International Adjudication, 258 RECUEIL DES COURS 9, 28-37 (1996). 31 See, e.g., Statute of the International Court of Justice, art. 36; Rome Statute of the International Criminal Court, art. 1. 32 See, e.g., Statute of the International Court of Justice, art. 38.

an impression (or, alternatively, the undermining of an existing positive impression) that weakens consent.

Simply stated, without control there would be no consent, and without consent there

would be no adjudication. Thus, when controls are removed (or perceived to be removed), consent is likely to go as well. And when controls are weakened, so too is consent. Effective controls are, therefore, necessary for the existence and success of international dispute resolution. It is important, then, to understand whether there are sufficient and effective controls on international courts, and, if not, how they can be improved.

II. CAN INTERNATIONAL COURTS BE CONTROLLED BY STATES?

On the surface there are a multitude of ways for States to control international courts. States elect a court’s judges; they set the court’s budget and appropriate funds; they specify the terms of the court’s jurisdiction and write the laws that the court applies in particular cases; and, if all else fails, they can withdraw from a court’s jurisdiction. The standard view is that these multiple mechanisms of controlling international courts are effective and sufficient.33

But controlling an international court is not as easy as it looks, for two reasons. First, State control of international courts is limited because courts (and their judges), as an essential component of their existence, are provided judicial independence and because the tools for the control of courts are cumbersome and not easily employed. External controls and their limitations – judicial independence and structural constraints inherent to the international system – are the subjects of this Part. Second, State control is limited because international courts, particularly their judges, are not simple puppets – courts and judges have interests and authorities of their own, interests that occasionally differ from those of the States that established them. This second set of reasons, which pertain to judicial self-control, is the subject of Part IV.

A. External Controls on International Courts

External controls on international courts are many and various, encompassing actions both ex ante and ex post.34 They come in five categories: (1) control over the court’s mandate; (2) control over the rules the court applies; (3) control over the court’s staffing; (4) control over the court’s budget; and (5) control over a court’s ability to make and apply its decisions.

States control a court’s mandate, the basic document that establishes the court and

sets the terms of the court’s jurisdiction and operation. Mandate control operates both ex ante and ex post. States, for instance, can limit a court’s jurisdiction ex ante, and if they find that the original jurisdictional grant is flawed, they have the ability to revise the

33 See, e.g., Ginsburg, supra note 17; Helfer & Slaughter, supra note 17. 34 For a useful summary of various control mechanisms, see Helfer & Slaughter, supra note 17, at 944 tbl. 3.

court’s mandate ex post.35 The Security Council, for instance, has amended the ICTY and ICTR statutes a number of times in order to enhance efficiency of the courts by increasing the number of judges available to hear cases and by adding an additional prosecutor.36 The Council has also set out “completion strategies” for the two ad hoc criminal tribunals, which establish “target dates”37 for the conclusion of investigations, trials, and “all [other] work.”38 Though the dates specified by the Council are couched in less than binding language, the evident threat is that the courts will be shut down, and their mandates terminated, at the close of the specified period.

States can also control a court through the strict drafting of applicable law ex ante,

subsequent interpretation of the law, and the formal revision of that law ex post. To this end, most treaties allow for amendment and some provide mechanisms for the parties to adopt authoritative interpretations of the agreement.

The detailed Elements of Crimes and Rules of Procedure and Evidence set out by the States Parties to the International Criminal Court demonstrate the lengths to which States can go to limit a court’s discretion ex ante.39 These documents were a conscious attempt by their drafters to limit judicial discretion. This move resulted, in part, from concerns that the crimes in the Court’s Statute were too vague, infringing on the principle of legality (nullum crimen sine lege) and allowing for the possibility of judicial lawmaking.40 It also reflected dissatisfaction with the active rulemaking by ICTY and ICTR judges.41 Indeed, one former-ICTY judge described the Elements of Crimes as “an overwhelming exercise in legal positivism,”42 and concluded that the “drafting of the ICC Statute and the Elements of Crimes illustrates clearly an intent on [the] part [of the States Parties to the Rome Statute] to maintain control over the making of international law and to keep a tight leash on the ability of international judges to go beyond what [States] have agreed to.”43 Another former-ICTY judge and president, referring to the ICC Statute, lamented that it “seems to evince a certain mistrust in the Judges.”44

35 See, e.g., Statute of the International Tribunal for the Law of the Sea, art. 41 (providing a means for the amendment of the Statute); Statute of the International Court of Justice, art. 69 (same). 36 See, e.g., S/RES/1512 (2003) (ICTR); S/RES/1503 (2003) (ICTR); S/RES/1431 (2002) (ICTR and ICTY). 37 Statement by the President of the Security Council, UN Doc. S/PRST/2004/28.

38 See S/RES/1503 (2003), para. 7; S/RES/1534 (2004), para. 3. On the completion strategies, see Daryl A. Mundis, The Judicial Effects of the “Completion Strategies” on the Ad Hoc International Criminal Tribunals, 99 AM. J. INT’L L. 142 (2005); Larry D. Johnson, Closing an International Criminal Tribunal While Maintaining International Human Rights Standards and Excluding Impunity, 99 AM. J. INT’L L. 158 (2005); Dominic Raab, Evaluating the ICTY and Its Completion Strategy: Efforts to Achieve Accountability for War Crimes and their Tribunals, 3 J. INT’L CRIM. JUST. 82 (2005). 39 ICC-ASP/1/3. 40 See William K. Lietzau, International Criminal Law After Rome: Concerns from a U.S. Military Perspective, 64 LAW & CONTEMP. PROBS. 119, 122-23 (2001); see also William K. Lietzau, Checks and Balances and Elements of Proof: Structural Pillars for the International Criminal Court, 32 CORNELL INT’L L.J. 477 (1999). 41 Article 51 of the Rome Statute provides that the Rules of Procedure and Evidence are to be adopted by the Assembly of States Parties. Judges can only adopt provisional rules in “urgent cases,” which will then be reviewed by a subsequent Assembly of States Parties. Rome Statute, art. 51(3). 42 David Hunt, The International Criminal Court: High Hopes, ‘Creative Ambiguity’ and an Unfortunate Mistrust in International Judges, 2 J. INT’L CRIM. JUST. 56, 59 (2004). 43 Id. at 61. 44 Antonio Cassese, The Statute of the International Criminal Court: Some Preliminary Reflections, 10 EUR. J. INT’L L. 144, 163 (1999); accord Board of Editors, The Rome Statute: A Tentative Assessment, in 2 THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 1901, 1904 n.2 (Antonio Cassese, Paola Gaeta, & John R.W.D.

The North American Free Trade Agreement (NAFTA) provides an example of ex

post rules control. Pursuant to that agreement, the NAFTA’s Free Trade Commission (FTC), whose members are the three NAFTA parties, has the authority to interpret provisions of the NAFTA, and the FTC’s interpretations are binding on NAFTA dispute resolution panels.45 In fact, such interpretations may effectively “overrule” interpretations given to the same provisions in earlier decisions of dispute resolution panels. In 2001, the Commission did precisely this following three awards interpreting a particular NAFTA provision.46 The three NAFTA parties decided that these interpretations were incorrect, and the FTC issued its own interpretation.47 The FTC’s interpretation was subsequently followed by panels in The Loewen Group, Inc. v. United States48 and Pope & Talbot, Inc. v. Canada.49

Jones, eds., 2002) (suggesting that the detailed drafting of the ICC’s Elements of Crimes “was symptomatic of States’ concern to control the Court and its judges”). 45 NAFTA, arts. 1131(2), 2001(2)(c). The WTO Agreement also allows its members, by a vote of three-fourths, to interpret the Agreement. See Agreement Establishing the World Trade Organization, art. XI(2). The members have never adopted an interpretation and only once has an interpretation been proposed. See General Council, Request for an Authoritative Interpretation Pursuant to Article IX:2 of the Marrakesh Agreement Establishing the World Trade Organization – Communication from the European Communities, WT/GC/W/133, 25 January 1999; and General Council, Request for an Authoritative Interpretation Pursuant to Article IX:2 of the Marrakesh Agreement Establishing the World Trade Organization – Communication from the European Communities, WT/GC/W/143, 5 February 1999. 46 See Metalclad Corp. v. United Mexican States, ICSID Case No. ARB(AF)/97/01, Award (NAFTA Chapter 11 Tribunal, Aug. 30, 2000), available at http://www. economia-snci.gob.mx/sphp_pages/importa/sol_contro/consultoria/Casos_Mexico/Metalclad/laudo/laudo_ingles.pdf; S.D. Myers, Inc. v. Canada, Partial Award (NAFTA Chapter 11 Tribunal, Nov. 13, 2000), available at http://www.dfait-maeci.gc.ca/tna-nac/documents/myersvcanadapartialaward_final_13-11-00.pdf; Pope & Talbot, Inc. v. Canada, Award on the Merits of Phase 2 (Apr. 10, 2001), available at http://www.dfait-maeci.gc.ca/tna-nac/documents/Award_Merits-e.pdf. 47 Interpretation of the Free Trade Commission of Certain Chapter 11 Provisions, available at http://www.state.gov/documents/organization/38790.pdf (interpreting NAFTA article 1105(1)’s “minimum standard of treatment in accordance with international law” provision). 48 The Loewen Group, Inc. v. United States, ICSID Case No. ARB(AF)/98/3, Award, ¶¶125-128 (NAFTA Chapter 11 Tribunal, June 26, 2003), available at http://www.state.gov/documents/organization/22094.pdf. 49 Pope & Talbot, Inc. v. Canada, Award in Respect of Damages, ¶51 (NAFTA Chapter 11 Tribunal, May 31, 2002), available at http://www.dfait-maeci.gc.ca/tna-nac/documents/damage_award.pdf.

Another mechanism by which States can control courts is through judicial appointments.50 Staffing control can take place in a number of ways: through the establishment (or not) of judicial term limits; through the manipulation of the judge’s term of office; through the nomination, election, and reappointment of judges; through the granting of certain privileges and immunities to judges; and through the designation of judicial seats for certain States, regions, or persons with particular competences and experience.51 Presumably, States put some thought into those who they nominate and elect to the international bench. Further, it is assumed that judges are more likely to do a good job if they wish to be re-appointed and that a judge who does a poor job will not be re-nominated or re-elected.

States also can control courts through their budgets, as courts are entirely dependent

on States and international organizations for their funding.52 The expenses of the Special Court for Sierra Leone, for example, are “borne by voluntary contributions from the international community.”53 The Presidents of the International Criminal Court and the International Tribunal for the Law of the Sea depend on their respective States Parties to bear the courts’ expenses, in ways decided by their Assemblies of States Parties.54 And the Presidents of the ICJ, ICTY, and ICTR go hat in hand to the U.N. General Assembly at least every other year to garner sufficient funds.55 Conceivably, States can signal their displeasure with a court by limiting its funds. Indeed, one scholar has asserted recently that “[k]eeping [the ICJ] on a tight budget looks increasingly like a poorly concealed attempt to influence it.”56

The final category of external control is decision control: mechanisms that remove a

State from a court’s jurisdiction, either ex ante or ex post, or deny the applicability to a State of a court’s ruling. Decision control is different from mandate control because it operates at the level of the individual State. Jurisdictional avoidance can occur in three ways: a State may refuse to consent to a court’s jurisdiction in whole or in part; a State may take a reservation to a treaty, thereby denying a court the ability to apply that rule to that State; and a State, having previously consented to a court’s jurisdiction or to a treaty

50 See generally Adam M. Smith, “Judicial Nationalism” in International Law: National Identity and Judicial Autonomy at the ICJ, 40 TEX. INT’L L.J. 197 (2005). 51 See, e.g., Rome Statute of the International Criminal Court, art. 36(5) (requiring there to be an “equivalent proportion” of judges with competences in criminal law and procedure and in international humanitarian law and the law of human rights); id., art. 36(8) (stating the parties shall take into account in the selection of judges, inter alia, “[e]quitable geographic representation” and a “fair representation of male and female judges”). 52 See generally Thordis Ingadottir, The Financing of Internationalized Criminal Courts and Tribunals, in INTERNATIONALIZED CRIMINAL COURTS 271 (Cesare P.R. Romano, André Nollkaemper, & Jann K. Kleffner eds., 2004); Cesare Romano, The Price of International Justice, 4 LAW & PRAC. INT’L CTS. & TRIBUNALS 281 (2005). 53 Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, art. 6. States have not always voluntarily provided sufficient funds to the Special Court, and the United Nations was called upon in 2004 to make up the shortfall. See UN Doc. A/RES/58/284 (2004). 54 Statute of the International Tribunal for the Law of the Sea, art. 19; Rome Statute of the International Criminal Court, art. 115. 55 The budgets of the ICJ and the ad hoc tribunals are voted on every two years, though there are occasional amendments. See, e.g., A/RES/58/255 (2003) (ICTY); A/RES/58/253 (2003) (ICTR); A/RES/59/273 (2004) (ICTR); A/RES/59/274 (2004) (ICTY); A/60/6 (Sect. 7) (2005) (Secretary-General’s request on behalf of the ICJ for the 2006-2007 biennium ICJ budget). 56 Romano, supra note 52, at 286.

regime, usually may exit. Denial of a court’s ruling takes the form of noncompliance.57

There are, of course, many examples of decision control. In 1986, in reaction to

rulings by the International Court of Justice, the United States withdrew from its blanket consent to the Court’s jurisdiction, and in 2005 the United States withdrew from a treaty that gave the Court jurisdiction over disputes pertaining to the Vienna Convention on Consular Relations.58 The United States now generally refuses to consent to any new treaty that provides the ICJ with jurisdiction over disputes without having the option to waive such a provision.59 But the United States, certainly, is far from the only State that has avoided – partially or entirely – the decisional authority of international courts or failed to comply with a court’s ruling.60 In 2002, Australia revised its consent to ICJ and International Tribunal for the Law of the Sea jurisdiction to exclude disputes relating to the delimitation of maritime zones, lest a possible claim be brought against it by East Timor in those fora.61 And in 2004, the United Kingdom altered its general consent to the jurisdiction of the ICJ so that a threatened case by Mauritius would not fall within the Court’s competence.62

B. Limitations on External Controls

External controls, from the look of them, are imposing. Because decision control works unilaterally, it is not easily mediated; consequently, decision control operates effectively, albeit, perhaps, somewhat crudely. Other external controls (what one might call intermediate controls), in contrast, require cooperation and coordination among States and therefore are more susceptible to frustration. As a consequence, there are two fundamental limitations on intermediate external controls over international courts:

57 On noncompliance, see Jacob Katz Cogan, Noncompliance and the International Rule of Law, 31 YALE J. INT’L L. 189 (2006). 58 See Adam Liptak, U.S. Says It Has Withdrawn from World Judicial Body, N.Y. TIMES, Mar. 10, 2005, at A16. 59 See, e.g., Letter of Submittal of the Department of State on the United Nations Convention Against Corruption, S. Treaty Doc. 109-6, at 20 (2005); United Nations Convention Against Corruption, art. 66(3). 60 Cf. Laurance R. Helfer, Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes, 102 COLUM. L. REV. 1832 (2002). 61 See Declaration [of Australia] Under Paragraph 2 of Article 36 of the Statute of the International Court of Justice, Mar. 21, 2002 (amending its declaration to preclude “any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation”); Declaration [of Australia] Under Paragraph 1(a) of Article 298 of the 1982 United Nations Convention on the Law of the Sea, Mar. 21, 2002 (declaring that Australia “does not accept any of the procedures provided for in section 2 of Part XV (including the procedures referred to in paragraphs (a) and (b) of this declaration) with respect to disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations”). Australia was concerned that East Timor, upon gaining independence, would submit a dispute to the ICJ or ITLOS regarding sovereignty over the Timor Gap. See Gillian Triggs & Dean Bialek, Australia Withdraws Maritime Disputes from the Compulsory Jurisdiction of the International Court of Justice and the International Tribunal for the Law of the Sea, 17 INT’L J. MARINE & COASTAL L. 423, 423 (2002). 62 See Declaration of the United Kingdom Under Article 36, Paragraph 2, of the ICJ Statute, July 5, 2004 (altering the United Kingdom’s previous declaration so that the Court’s jurisdiction would henceforth cover only disputes arising after January 1, 1974 and those that are brought by States that are not and have never been a member of the Commonwealth). The United Kingdom was fearful that Mauritius would bring a case regarding the status of the Chagos Islands in the Indian Ocean. See Nita Bhalla, Mauritius Stakes Claim for Chagos, BBC NEWS, Mar. 30, 2004, available at http://news.bbc.co.uk/1/hi/world/africa/3583927.stm; Ewen MacAskill, Mauritius May Sue for Diego Garcia, THE GUARDIAN, July 7, 2004, available at http://www.guardian.co.uk/international/story/0,3604,1255446,00.html.

judicial independence and structural constraints inherent in the international system. These limits significantly undermine the efficacy of intermediate external controls over international courts.

As an initial matter, States have less control over judges than they do over other

international civil servants because of judicial independence.63 Independence, here, means the freedom from coercion.64 Such independence means that States cannot direct judges to decide cases in certain ways, even if those judges are nationals of that State. Though the presumption of judicial independence may not have obtained for certain ICJ judges from totalitarian States during the Cold War,65 it must be assumed today. This is not to suggest, certainly, that judges are completely impartial, especially when they decide cases in which their State of nationality is a party, only that judges are free to decide cases in accordance with their views, which will necessarily reflect their backgrounds.66

That States take judicial independence seriously became evident during the discussion

in the Security Council of the completion strategies for the ICTY and ICTR.67 Some States worried that directing the ad hoc courts to complete their missions by certain dates impermissibly directed the courts, particularly their judges, to take certain positions. France, in a letter to the President of the Security Council, made clear its view that the completion strategies “should not be construed as undermining the principle of independence of the two Tribunals and the separation of their functions [from those of the Council].”68 As a consequence of the need and desire for judicial independence, it has been, according to a former Assistant Secretary-General for Legal Affairs, “extremely difficult for . . . the Tribunals’ parent organ, the Security Council, to hold [them] strictly accountable.”69

Aside from judicial independence, there are numerous structural constraints that limit

the ability of States to control international courts. There are three types: (1) multiple principals constraints; (2) monitoring constraints; and (3) competing non-legal policy constraints.

63 See Steve Charnovitz, Judicial Independence in the World Trade Organization, in INTERNATIONAL ORGANIZATIONS AND INTERNATIONAL DISPUTE SETTLEMENT: TRENDS AND PROSPECTS 219, 227-28 (Laurence Boisson de Chazournes, Cesare Romano, & Ruth Mackenzie eds., 2002) (noting that “judicial independence was recognized by the parties drafting the WTO”). 64 See Pamela S. Karlan, Two Concepts of Judicial Independence, 72 S. CAL. L. REV. 535, 536 (1999). 65 See W. Michael Reisman, Metamorphoses: Judge Shigeru Oda and the International Court of Justice, 33 CAN. Y.B. INT’L L. 185, 187 (1995). The Soviet Union claimed the same with regard to Western ICJ judges. See Zigurds L. Zile, A Soviet Contribution to International Adjudication: Professor Krylov’s Jurisprudential Legacy, 58 AM. J. INT’L L. 359, 365 (1964). 66 Cf. Eric A. Posner & Miguel F.P. de Figueiredo, Is the International Court of Justice Biased?, 34 J. LEGAL STUD. 599 (2005). 67 As a formal matter, statutes of international courts state that judges are to be “independent.” See, e.g., Statute of the International Court of Justice, art. 2 (“The Court shall be composed of a body of independent judges . . . .”). 68 Letter Dated 30 March 2004 from the Permanent Representative of France to the United Nations Addressed to the President of the Security Council, UN Doc. S/2004/265. 69 Ralph Zacklin, The Failings of Ad Hoc International Tribunals, 2 J. INT’L CRIM. JUST. 541, 543 (2004).

Constraints on State control flow, in part, from the fact that international courts have multiple principals. Thus, even when the control mechanism is centralized, such as through the Security Council or an Assembly of States Parties, control is effectively mitigated by the inability of States to agree. This is especially evident with rules control. Unlike in the United States and other developed legal systems, where judicial interpretations of statutory70 and constitutional71 provisions can be and are overturned, States have great difficulty with re-legislating international law.72 This, as one commentator has written, is international law’s “missing legislator” problem.73 The same difficulties apply to revising a court’s mandate.

For similar reasons, States cannot effectively control courts through appointments.

Inter-State coordination of nominations and elections takes the form of horse-trading and not substantive review. Usually, judges are nominated and rotated on a geographical basis that has no connection ex ante with a judge’s views or ex post with a judge’s decisions. As Judge Thomas Buergenthal has recently written, “What struck me in my re-election campaign is how highly politicized the election process is for the various judicial positions that the UN membership has to vote for and how little judicial qualifications of the individual candidates or their judicial record seem to matter.”74 Even States, such as the permanent five members of the Security Council, that traditionally have guaranteed seats on international courts seldom rotate their judges, even when there has been a change in government. Only in exceptional cases have substantive considerations mattered.75 Judges, therefore, have little concern that their decisions will affect their chances for reappointment or promotion, and this increases their independence while on the bench.76

70 See, e.g., William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 334 (1991) (concluding that “Congress and its committees are aware of the [Supreme] Court’s statutory decisions, devote significant efforts toward analyzing their policy implications, and override those decisions with a frequency heretofore unreported”). 71 Four constitutional amendments have overturned Supreme Court decisions: the Eleventh Amendment, overturning Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793); the Fourteenth Amendment, overturning Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); the Sixteenth Amendment, overturning Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895); and the Twenty-Sixth Amendment, overturning Oregon v. Mitchell, 400 U.S. 112 (1970). There, of course, a large literature on “conversations” between courts and the legislative and executive branches. See, e.g., Luc B. Tremblay, The Legitimacy of Judicial Review: The Limits of Dialogue Between Courts and Legislatures, 3 INT’L J. CONST. L. 617 (2005). 72 See, e.g., Jeffrey Atik, Democratizing the WTO, 33 GEO. WASH. INT’L L. REV. 451, 454 (2001); Konstantin J. Joergens, True Appellate Procedure or Only a Two-Stage Process? A Comparative View of the Appellate Body Under the WTO Dispute Settlement Understanding, 30 LAW & POL’Y INT’L BUS. 193 (1999); Vaughan Lowe, Advocating Judicial Activism: The ITLOS Opinions of Judge Ivan Shearer, 24 AUSTL. Y.B. INT’L L. 145, 152 (2005). 73 Armin von Bogdandy, Law and Politics in the WTO – Strategies to Cope with a Deficient Relationship, 5 MAX PLANCK Y.B. U.N. L. 609, 651 (2001). 74 Buergenthal, supra note 27, at 498. 75 Thus, the majority of the UN General Assembly, unhappy with the ICJ’s judgment in the South West Africa (Second Phase) case, replaced the judges who voted on the “wrong” side. As a consequence, five years later the court’s decision was essentially reversed in the Namibia case, through the election of judges. See Edward McWhinney, The International Court of Justice and International Law-making: The Judicial Activism/Self-Restraint Autonomy, 5 CHINESE J. INT’L L. 3, 10-11 (2006). 76 See Karen J. Alter, Resolving or Exacerbating Disputes? The WTO’s New Dispute Resolution System, 79 INT’L AFF. 783, 795-96 (2003); Daniel Klerman, Nonpromotion and Judicial Independence, 72 S. CAL. L. REV. 455 (1999). Contrast the domestic situation in the United States and Japan: J. Mark Ramseyer & Eric B. Rasmusen, Judicial Independence in a Civil Law Regime: The Evidence from Japan, 13 J.L. ECON. & ORG. 259 (1997); Mark A. Cohen, Explaining Judicial Behavior or What’s “Unconstitutional” About the Sentencing Commission?, 7 J.L. ECON. & ORG.

Monitoring constraints also mitigate effective control of international courts. In

domestic systems, we rely upon a host of actors – the government, private parties (including practitioners and academics), and the media – to monitor and report on judicial activities. In the international system, such monitoring devices exist but are much more attenuated or non-functional. Thus, even though many (though not all) court sessions are open, decisions and opinions are public, and press releases are issued, the media report on only the most high-profile cases (such as that of Slobodan Milošević) and seldom with any insight.77 Further, even the most affluent of States cannot afford the resources to track every action of every court. With particularly active courts, such as the ad hoc international criminal tribunals, it is especially difficult to read and analyze the plethora of documents produced. It is true that some States, including the United Kingdom and the United States, maintain very small staffs in The Hague to, among other things, monitor and interact with the tribunals that sit there, but it is still next to impossible to digest everything. For the vast majority of States, it is impossible. Even the U.N. Security Council and General Assembly have difficulties.78 One might expect States to only truly pay careful attention to courts (and, consequently, one might expect courts to pay careful attention to States) when States are participants in a proceeding – either as a party or when subject to orders by a court.79 Much happens, therefore, in the absence of oversight.80

But even if a few State officials can get a handle on what’s going on, it is difficult for

a State to react to judicial errors. This is not just a matter of bureaucracy; it is also a matter of competing policies. Legal policy is only one of any number of policies that make up a State’s foreign policy.81 Thus, even if a State decides that an international tribunal has exceeded its jurisdiction or committed an error of law that would have a direct effect on that State’s international obligations, it is still be possible that the State would take no corrective action because of other, competing policies. For instance, even if the United States took issue with a particular ruling of the ICTY, one might wonder whether it would attempt to take action against the ICTY because the United States is strongly supportive of that institution for foreign policy reasons.

183, 192-95 (1991); Gregory B. Sisk, Michael Heise, & Andrew P. Morriss, Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning, 73 N.Y.U. L. REV. 1377, 1487-93 (1998). 77 See Monica Hakimi, The Media as Participants in the International Legal Process, 16 DUKE J. INT’L & COMP. L. 1, 21-27 (2006). 78 See Dominic Raab & Hans Bevers, The International Criminal Court and the Separation of Powers, 3 INT’L ORGS. L. REV. 93, 103-4 (2006) (“Representatives of the Fifth Committee [of the General Assembly, which is responsible for budgetary issues,] and the Security Council often lack a high level of specific expertise in or experience with criminal courts.”). 79 See, e.g., Prosecutor v. Milošević, Case No. IT-02-54-T, Decision on Assigned Counsel Application for Interview and Testimony of Tony Blair and Gerhard Schröder, International Criminal Tribunal for the Former Yugoslavia, Trial Chamber (Dec. 9, 2005); Jacob Katz Cogan, Prosecutor v. Milutinović, Decision on Requests of the United States of America and the North Atlantic Treaty Organisation for Review, 101 AM. J. INT’L L. (forthcoming 2007). 80 See, e.g., Raab & Bevers, supra note 78, at 104 (noting how the ICTY’s “plea-bargaining and sentencing policy more broadly have developed in a rather haphazard manner without independent review”). 81 Cf. David D. Caron, Towards a Political Theory of International Courts and Tribunals, 24 BERKELEY J. INT’L L. 401, 409 (2006) (noting that there are often political motives for establishing international courts).

C. The Limits of External Controls: Independent Courts

In domestic systems, we have a structure of independent judges within a dependent judiciary.82 Individual judges are provided independence but the courts are kept in check by various intermediate control mechanisms – primarily re-legislating and re-allocation of jurisdiction. Though only occasionally used, such controls are effective; hence, they act not only as correctives but as deterrents. When combined with internal controls, they can make for highly-developed systems of control.

The same cannot be said for international law, which is mostly a system of

independent judges within independent courts. Because of the limitations on intermediate external control mechanisms peculiar to international system, the optimal conditions for their effectiveness do not exist in practice, except in limited cases. Courts are most likely to be properly controlled when they are supervised by fewer principals, when there are opportunities for effective re-legislating, or when the stakes are extraordinarily high. Thus, both the NAFTA and the WTO contain mechanisms for judicial correction, but only in the case of the NAFTA (and not the 150-member WTO) have the three Parties agreed to correct a judicial decision. In most cases, international courts lack effective supervision because the effect of those intermediate mechanisms of control – the ones that are used so well in domestic systems – is mediated by the structural limitations of the international system or by the principle of judicial independence. Consequently, as one commentator has put it, referring to the ICTY, international courts largely look after themselves.83

III. CAN INTERNATIONAL COURTS EXERT SELF-CONTROL?

Commentators focus on external controls on international courts, as if those were the only mechanisms that keep judges in check.84 But as important, if not more important, are internal controls – those checks on the operation of the judiciary that are applied by judges to themselves.85

In the absence of effective external checks, internal checks are particularly important because international judges are not simple agents applying the law disinterestedly, at least not always. International judges, like their domestic counterparts, have interests like anyone else.86 These interests are both attitudinal – in the sense of being based on

82 See John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. CAL. L. REV. 353 (1999). 83 See Raab & Bevers, supra note 78, at 104 (quoting Chris Stephen, Analysis: Setting the Hague Record Straight, IWPR TRIBUNAL UPDATE, no. 300, Feb. 10-15, 2003, available at http://www.iwpr.net/?p=tri&s=f&o=166536&apc_state= henitri2003). 84 See, e.g., Danner, supra note 17; Ginsberg, supra note 17; Steinberg, supra note 17. 85 Cf. Ronald A. Cass, Judging: Norms and Incentives of Retrospective Decision-Making, 75 B.U. L. REV. 941, 969 (1995) (“The hard features of our judicial system . . . largely are useful in a negative sense . . . . They do not provide positive inducements to behave in a desirable manner . . . .”). 86 See, e.g., Jerome Frank, Are Judges Human?, 80 U. PA. L. REV. 17 (1931); Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. LEGAL EDUC. 518 (1986); Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 SUP. CT. ECON. REV. 1 (1993); Frederick Schauer, Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior, 68 U. CIN. L. REV. 615 (2000). My discussion of judicial self-interest relies a good deal on previous work done in the U.S. context by, among others,

ideology or preferred public policy – and personal – in the sense of being based on ambition, respect, popularity, and other forms self-interest. Such interests can run against – and override – the external limits placed upon international courts and judges. Hence the need not only for effective external controls but also for effective internal controls. This Part looks at techniques of judicial self-control and their limits. It argues that while there are a number of internal control mechanisms that operate on international judges, these are, by their very nature, weak. On the other hand, international judges have strong interests of their own, and those interests are empowered by the inherent authorities of international courts.

A. Internal Controls on International Courts

Internal controls on international courts are both formal and informal. They can be divided into three categories of constraints: professional norms, judicial ego, and legal process. All three types of control are weak, but they do have their effects and they cannot be ignored.

Foremost, international judges are limited by the professional norms associated with

their office, primarily independence and impartiality.87 Though such norms exist as a necessary consequence of a judge’s election, “for [a new] international judge to conduct himself in an impartial and independent way,” writes Judge Theodor Meron, “may require adaptation and discipline.”88 As part of this process, the statutes of most international courts require that judges, before they take their seats, make a solemn declaration89 that is designed to impart notions of impartiality and conscientiousness to the persons taking the oath – in other words to appeal to their “internal compass.”90 To bolster their effect, oaths are administered publicly. This is intended to suggest to the judge that he or she is publicly accountable in the event of a failure to abide by judicial norms of conduct. It is also intended to satisfy the audience that the judge will act in accordance with the norms expected of him or her. Professional norms thus act upon judges in two ways: as a reminder of agreed judicial standards and as a reminder of the possible consequences resulting from the failure to abide by those standards.

Judges might care about the views of the public because they might enjoy adulation

and might care about the prestige of their office. Judges might also be concerned about LAWRENCE BAUM, JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR (2006); Schauer, supra; and Cass, supra note 85. 87 These norms are seldom specified in any detail. The Code of Judicial Ethics, adopted by the judges of the International Criminal Court, is an exception. 88 Meron, supra note 12, at 360. 89 See, e.g., Statute of the International Court of Justice, art. 20 (“Every member of the Court shall, before taking up his duties, make a solemn declaration in open court that he will exercise his powers impartially and conscientiously.”); Rome Statute of the International Criminal Court, art. 45; Statute of the International Tribunal for the Law of the Sea, art. 11; Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, Rule 14; Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda, Rule 14. 90 Cass, supra note 85, at 978.

their popularity with particular groups – such as members of the international bar, international law academics, and nongovernmental organizations – for reasons of ego (wanting to be respected), influence, and even monetary rewards (for example, by being appointed an arbitrator in international arbitrations).91 They might care about their reputation among their colleagues, both on their own court and on other international courts, also for reasons of ego and influence. In these and other ways, international judges have been said to be a part of a “global community of law” that restricts their decision-making.92 Finally, international judges care about whether their decisions will be complied with by States (both the parties to the case and non-parties) and whether States may withdraw their consent from the Court’s jurisdiction, and this may affect their decision-making too.93

Judges are restricted, as well, in a number of technical and procedural ways. As a

formal matter, they are restricted by the jurisdictional and other limits imposed by States in a court’s mandate. So too are they limited by the texts of the agreements they apply, as well as by precedent and other sources of law, including interpretative rules.94 The requirement that a court give reasoned, public opinions95 can also set limits to a judge’s decision-making.96 And some courts, such as the international criminal tribunals and the WTO, include multi-judge panels and forms of appellate or quasi-appellate review in order to decrease the possibility of partiality and error.

B. Limitations on Internal Controls

There are, thus, a number of ways in which judges can constrain or are constrained by themselves. But there are a number of factors, some unique and some not unique to the international system, that work in favor of judicial discretion. Indeed, some of the internal constraints on judging can in fact cut in favor of activism, and other internal constraints, such as giving reasoned opinions, are not necessarily effective.97 There are two general types of limits on internal controls: the personal and institutional interests of judges and the institutional authority of courts.

91 See Posner, supra note 86, at 13-15. Stephen Schwebel, former judge and president of the International Court of Justice, was a member of more than two dozen arbitral panels during his career on the court. See Elihu Lauterpacht, et al., Legal Opinion on Guatemala’s Territorial Claim to Belize 1 (2001), available at http://www.mfa.gov.bz/library/documents/ LegalOpinionon.pdf. 92 Helfer & Slaughter, supra note 17, at 953; see also Oscar Schachter, The Invisible College of International Lawyers, 72 NW. U. L. REV. 217 (1977); Anne-Marie Slaughter, A Global Community of Courts, 44 HARV. INT’L L.J. 191 (2003). 93 In domestic systems, lower court judges who desire promotion have the related anxiety of possible reversal by a higher court. See Mark A. Cohen, The Motives of Judges: Empirical Evidence From Antitrust Sentencing, 12 INT’L REV. L. & ECON. 13 (1992). 94 This can be true, even though, as a formal matter, international judges are not bound by prior decisions. See, e.g., MOHAMED SHAHABUDDEEN, PRECEDENT IN THE WORLD COURT (1996). 95 See, e.g., Statute of the International Court of Justice, art. 56(1) (“The judgment shall state the reasons on which it is based.”); Statute of the International Tribunal for the Law of the Sea, art. 30(1) (same). 96 See Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 657-58 (1995). 97 Reasons can easily cover a self-interested decision. See Rogers M. Smith, The Inherent Deceptiveness of Constitutional Discourse: A Diagnosis and Prescription, in NOMOS XL: INTEGRITY AND CONSCIENCE 218 (Ian Shapiro & Robert Adams eds., 1998). On the failure of the International Court of Justice to give reasons in one case, see Sean D. Murphy, Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?, 99 AM. J. INT’L L. 62 (2005).

Like all judges, international judges have a variety of personal and institutional interests that overlap with or derive from their professional roles. They have views about public policy; they have opinions regarding the role of courts and judges; and they have concerns about their reputations and popularity.98 These interests cohere into a tendency, as Karen Alter has written, for judges to “promot[e] [judicial] independence, influence, and authority.”99 Thus, judges seek independence and autonomy from political bodies, and they seek to increase the relevance of their decisions.100 They also tend to advocate expanding the power of the law, as by doing so they also expand their own power.101

Given the structure of the international system, with its gaps, ambiguities, deficient

legislative process, and weak enforcement mechanisms, these inclinations – and the opportunities to act on them – are even greater for international judges. As a result, international judges often believe in the “development of international law”102 or, as Judge Jennings put it, “the scientific development of general international law.”103 Knowing how difficult it is for States to fill the gaps, they see it as their responsibility to do so by putting their “imprimatur” on such development.104 Judge Jennings wrote approvingly that “It is probable that in view of the difficulties surrounding the codification of international law, international tribunals will in future fulfill, inconspicuously but effectively, a large part of the task of developing international law.”105 Judge Koroma, referring to this prediction, commented that “I believe that is what we try to do.”106 Judge Simma of the International Court of Justice, writing in two recent judgments, complained about the “inappropriate self-restraint” and the “unnecessarily cautious way[s]” of his colleagues107 and Judge ad hoc Shearer argued in an opinion that it was for the International Tribunal for the Law of the Sea to strike “[a] new ‘balance’” in the law since “circumstances have now changed.”108 International judges are also believers in the power of international law and adjudication. The courts through their decisions can, some judges claim, “secur[e] the promotion of international peace and security and the development of friendly relations between States.”109 Thus, like constitutional court judges, international court judges “seek both to preserve the

98 See generally BAUM, supra note 86. 99 KAREN J. ALTER, ESTABLISHING THE SUPREMACY OF EUROPEAN LAW: THE MAKING OF AN INTERNATIONAL RULE OF LAW IN EUROPE 45 (2001). 100 See id. at 45-46. 101 See John O. McGinnis, The Limits of International Law in Protecting Dignity, 27 HARV. J. L. & PUB. POL’Y 137, 141 (2003) (international court judges expand their own authority by expanding the authority of international law); Larry Ribstein, The Illogic and Limits of Partners’ Liability in Bankruptcy, 32 WAKE FOREST L. REV. 31, 63 (1997) (bankruptcy judges decide cases in ways that expand their authority). 102 NAGENDRA SINGH, THE ROLE AND RECORD OF THE INTERNATIONAL COURT OF JUSTICE 137 (1989). 103 Robert Jennings, The Role of the International Court of Justice in the Development of International Environment Protection Law, 1 REV. EUR. COMMUN. & INT’L ENVT’L L. 240, 242 (1992), quoted in Reisman, supra note 30, at 52. 104 Jennings, supra note 103, at 241. 105 1 ROBERT JENNINGS & ARTHUR WATTS, OPPENHEIM’S INTERNATIONAL LAW 41 (9th ed. 1992). 106 Abdul G. Koroma, International Courts and Tribunals: Alternatives to Treaty Making, in DEVELOPMENTS OF INTERNATIONAL LAW IN TREATY MAKING 621, 625 (Rüdiger Wolfrum & Volker Röben eds., 2005). 107 Separate Opinion of Judge Bruno Simma, para. 6, Oil Platforms Case (Iran v. U.S.), International Court of Justice, Judgment of Nov. 6, 2003; Separate Opinion of Judge Bruno Simma, para. 15, Armed Activities on the Territory of the Congo (D.R.C. v. Rwanda), International Court of Justice, Judgment of Dec. 19, 2005. 108 Dissenting opinion of Judge ad hoc Shearer, The “Volga” Case (Russ. v. Austl.), International Tribunal for the Law of the Sea, Judgment of Dec. 23, 2002, Application for Prompt Release, para. 19. 109 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), ICJ Reports 1995, at 90 (30 June) (Joint Dissenting Opinion of Judges Aguilar Mawdsley and Ranjeva), quoted in Reisman, supra note 30, at 53.

normative superiority of” international law “and to ensure that [international law] becomes, or continues to be, the essential reference point for the settlement of like cases that may arise in the future.”110

Courts and judges not only have their own interests, they also have their own

authorities. They initially have (some) authority because it was given to them by States. But they have other kinds of authorities – independent of what State’s bestow upon them – by virtue of their expertise and the legitimacy inherent in their judicial role.111 International courts, therefore, have “the ability . . . to use institutional and discursive resources to induce deference from others.”112 That ability is based in their missions, their goals, and their methods, the ways in which they go about achieving those goals. With such abilities, international courts can use their authority to regulate current and future behavior by States and other actors. In so doing, they potentially can go beyond what States have delegated to them, as, once established, international courts have authorities independent of that delegation. These powers can be substantial. The European Court of Justice’s construction of its own authority and its transformation of the EU legal system is the best example of inherent judicial authority at work.113

C. The Limits of Internal Controls: Independent Judges

Even more so than their domestic colleagues, international judges have interests that make them inherent judicial expansionists and authorities that provide them the opportunities to implement those predilections. Believers in the power of law, international judges see it as their duty to use the courts to develop international law and to consolidate the international rule of law. Internal controls have their effects – judges feel compelled to decide cases under the law, as a matter of substance and process. But internal controls, which are naturally weak as they depend on self-control, can only counter these tendencies so much. Law, particularly international law, is malleable, and judges have great discretion. While international judges, of course, are not free agents, they are also not opinionless automatons.

Because of the strong judicial desire to play a positive role in the international legal

order, the most effective controls on judges, therefore, will play on that need. And the best way to do that is by restricting, or threatening to restrict, the main vehicle for judicial influence – cases. In other words, international judges are most likely to exert self-control if they can envision harms to their core self-interests by failing to do so.

110 ALEC STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE 141 (2000). 111 See, e.g., Chester Brown, The Inherent Powers of International Courts and Tribunals, 76 BRIT. Y.B. INT’L L. 195 (2005); Michèle Buteau & Gabriël Oosthuizen, When the Statute and Rules are Silent: The Inherent Powers of the Tribunal, in ESSAYS ON ICTY PROCEDURE AND EVIDENCE IN HONOUR OF GABRIELLE KIRK MCDONALD 65 (Richard May, et al. eds., 2001). 112 MICHAEL BARNETT & MARTHA FINNEMORE, RULES FOR THE WORLD: INTERNATIONAL ORGANIZATIONS IN GLOBAL POLITICS 5 (2004). 113 See, e.g., Karen J. Alter, Who Are the “Masters of the Treaty”?: European Governments and the European Court of Justice, 52 INT’L ORG. 121 (1998); cf. Ghias, supra note 23.

IV. COMPETITION AND CONTROL

States are not unaware of the importance and fragility of control mechanisms. So during the Security Council debates on the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), some States put down markers for the new courts. Thus, the representative of Venezuela stated that the ICTY, “as a subsidiary organ of the Council, would not be empowered with – nor would the Council be assuming – the ability to set down norms of international law or to legislate with respect to those rights. It simply applies existing international humanitarian law.”114 And the representative of Argentina indicated that the ICTR “is not authorized to establish rules of international law or to legislate as regards such law but, rather, it is to apply existing international law.”115 This was also a concern of the drafters of the WTO’s Dispute Settlement Understanding, who embedded in that agreement the rule that “Recommendations and rulings of the D[ispute] S[ettlement] [B]ody cannot add to or diminish the rights and obligations provided in the covered agreements.”116 And as we have seen, the drafters of the Rome Statute of the International Criminal Court went to great lengths to reduce judicial discretion by drafting detailed Rules of Procedure and Evidence and Elements of Crimes and all but eliminating judicial rulemaking. As States have created more courts, and noticed the flaws of existing courts, they have become increasingly interested in controlling courts ab initio.

But, as the above analysis indicates, these attempts will ultimately be ineffectual.

Like international organizations generally,117 international courts have minds and interests of their own. As a result, they can be tempted to expand their powers beyond those provided for in their constitutive documents or by informal expectations. At the same time, international courts are protected from external control because of the principle of judicial independence and because of structural constraints on international lawmaking and institutional reform. This combination of weak external control and imperfect self-control provides international courts with opportunities to exceed their mandates.118 Though the likelihood of this happening varies by court, there should be no doubt that international judges not only have the opportunity and the tools119 but, on occasion, the willingness to do this as well.120

114 UN Doc. S/PV.3217 (1993), at 7. It is true that the ad hoc tribunals can create their own rules and that those rules influence the outcome of cases, but that does not mean that the Security Council delegated lawmaking authority to those courts. 115 UN Doc. S/PV.3453 (1994), at 8. 116 Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, art. 3(2), Agreement Establishing the World Trade Organization, Annex 2. 117 See, e.g., BARNETT & FINNEMORE, supra note 112 (discussing the autonomy and authority of secretariats of international organizations). 118 For a similar conclusion about the European Court of Justice, see Karen J. Alter, Who Are the “Masters of the Treaty”?: European Governments and the European Court of Justice, 52 INT’L ORG. 121 (1998). 119 See, e.g., Jan Klabbers, Constitutionalism Lite, 1 INT’L ORGS. L. REV. 31, 37-41 (2004) (describing the doctrines of conferred powers, functional necessity, and ultra vires that judges use to expand their powers). 120 See, e.g., REISMAN, supra note 7, at 11-45 (describing the breakdown of informal jurisdictional limits at the ICJ); Roger P. Alford, Reflections on US-Zeroing: A Study in Judicial Overreaching by the WTO Appellate Body, 45 COLUM. J. TRANSNAT’L L. 196 (2006) (concluding that, in a recent case, “the Appellate Body inappropriately expanded the WTO’s authority to hear facial challenges”).

Traditional mechanism of control are imperfect because they don’t effectively act

upon the needs of courts and judges to maintain their influence and authority. If judges have little reason to worry about external controls – that their decisions will effect their chances for reelection; that their rulings will be overturned legislatively; that their mandates will not operate perpetually; that their rulings will diminish the number of cases on their docket – then they have little incentive to check their own actions. This is why those who are troubled by the breakdown of control have often looked to internal controls, suggesting that international judges be better attuned to their unique roles and exert greater self-control.121 Yet, as these same commentators acknowledge, self-control is a weak hook upon which the hang international dispute resolution. What is needed are controls that are tailored to and take advantage of the structure of the international system as it exists today and the various intersecting incentives and capacities created by that structure.

A. Competitive Adjudication

Which brings us back to consent and decision control. The easiest and most effective way for States to control courts is to limit their ability to decide cases, by actions taken either ex ante or ex post. This is usually viewed negatively, as States opting out of the international legal system. But there is potentially a positive side to decision control too, for a State’s refusal to consent to a court’s jurisdiction or withdrawing from that jurisdiction communicates to the court that that State is unsatisfied with the quality of the court’s work.122 States have an interest in finding courts that provide them with “unbiased, accurate, reasonable, and prompt resolution of disputes,” failing that, they withdraw.123 If enough States (or important enough States) did this, then a court might lose its customer base, and without customers, a court could slide into irrelevance and maybe even shut down. Though international judges are not as dependent on litigants as pre-nineteenth-century English judges, whose salaries were based on the fees they received from litigants, they will still be solicitous of the needs of States, except in certain circumstances (noted below), in order to maintain their standing in the international legal order.124 Faced with losing market share (and its potential consequences) because States withdraw from or refuse to accede to their jurisdiction, courts – like any supplier of goods and services – will look to reinvent themselves as more customer-friendly.125 This process of evaluation and re-evaluation is enhanced when a State has multiple fora to choose from when submitting a dispute to adjudication. The ability of States to choose among courts or to forego them entirely and the desire of courts to adjudicate cases and adjust their procedures to attract litigants together generate

121 See REISMAN, supra note 7, at 143; Lorand Bartels, The Separation of Powers in the WTO: How to Avoid Judicial Activism, 53 INT’L & COMP. L.Q. 861 (2004); J. Patrick Kelly, Judicial Activism at the World Trade Organization: Developing Principles of Self-Restraint, 22 NW. J. INT’L L. & BUS. 353 (2002). 122 I leave aside here the issue of noncompliance, which is not an optimal form of control. 123 Todd J. Zywicki, The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis, 97 NW. U. L. REV. 1551, 1585 (2003). 124 See id. at 1587. 125 Cf. Robert D. Cooter, The Objectives of Private and Public Judges, 41 PUB. CHOICE 107, 107 (1983) (“[S]ome private judges have to attract business, so they are exposed to the same market pressures as anyone who sells a service.”).

the incentives and dynamics for competitive adjudication. Courts will endeavor to make rules – both procedural and substantive – that accord with the interests of States, and courts will monitor the decisions of their competitors (and how they are received) in order to decide whether to adopt those innovations themselves. In this way, competition among courts can create effective control.126

The market for international legal services can serve as an effective control

mechanism not only because it creates incentives for courts to mediate their actions in order to attract litigants but also because the system, as constructed, does not establish a bias in favor of a particular set of litigants, plaintiffs or defendants. Not all competitive systems are so evenhanded. In the United States, for example, state long-arm statutes and choice-of-law rules allow plaintiffs in class-action tort litigation to unilaterally choose their forum, and elected state judiciaries have incentives to favor these plaintiffs, thereby creating a pro-plaintiff bias in certain jurisdictions.127 In the international system, as with private international dispute resolution, plaintiffs do not have this choice, as the consent of the defendant is also required as a basis for jurisdiction, and plaintiffs must choose their forum with the foreknowledge that they may be subject to the same rule as a future defendant. Thus, as with arbitrators in international commercial arbitration, international court judges “have strong incentives to make decisions that make both parties to the case, ex ante, better off.”128

In some ways, international dispute resolution has always been a competitive system.

States had their choice of fora, whether it was the International Court of Justice (or the Permanent Court of International Justice) or ad hoc arbitral tribunals. Sometimes, because of the nature of the dispute, only one forum – permanent or ad hoc – was available. But mostly States had their pick and opted for the forum that best suited their needs.129 Thus, States have variously resorted to the ICJ and ad hoc arbitration to resolve their maritime boundary disputes.130

That said, the proliferation of courts, principally over the past fifteen years, has

expanded the possibilities for competition significantly. Ad hoc tribunals are fine, but, in the end, competition is enhanced by more permanent institutions because permanent judges – given the length of their tenure and the permanency of their courts – have greater incentives to maintain their status positions and influences than do arbitrators.

126 Ruth Wedgwood has suggested a system of “competitive multilateralism” that would lead to reform of international organizations, such as the United Nations. See Ruth Wedgwood, Give the United Nations a Little Competition, N.Y. TIMES, Dec. 5, 2005, at A23. 127 See Todd J. Zywicki, Is Forum-Shopping Corrupting America’s Bankruptcy Courts?, 94 GEO. L.J. 1141, 1154-57 (2006) (reviewing LYNN M. LOPUCKI, COURTING FAILURE: HOW COMPETITION FOR BIG CASES IS CORRUPTING THE BANKRUPTCY COURTS (2005)). 128 Christopher R. Drahozal, Commercial Norms, Commercial Codes, and International Commercial Arbitration, 33 VAND. J. TRANSNAT’L L. 79, 107 (2000) (emphasis added); see also Cooter, supra note 125, at 131 (“Private judges who maximize demand for their services from disputants, each of whom has the power to veto choice of a judge, will make decisions which are pairwise Pareto efficient . . . .”). 129 On why States may prefer arbitration over adjudication, see Loretta Malintoppi, Methods of Dispute Resolution in Inter-State Litigation: When States Go to Arbitration Rather than Adjudication, 5 LAW & PRAC. INT’L CTS. & TRIBUNALS 133 (2006). 130 See Charney, supra note 27, at 315.

Competition has also increased because of a proliferation of treaties that not only mandate binding dispute resolution but also include provisions that institutionalize a framework for competitive adjudication. The best example is the United Nations Convention on the Law of the Sea (UNCLOS).131 Article 287 of UNCLOS allows parties to the Convention to choose between four different types of dispute resolution: the International Tribunal for the Law of the Sea (ITLOS), the ICJ, and two types of arbitration.132 The default (in cases where a States does not choose ex ante or where States have not consented to the same dispute resolution mechanism) is to one of the two forms of arbitration.133 Because States can alter their dispute resolution choice at any time prior to a dispute or can agree ad hoc to one of the four dispute resolution mechanisms, the Convention imbeds competition.134 This system of choice was established because the States negotiating the Convention could not agree upon a single method of adjudication,135 and the resulting approach makes it more likely that States that are considering ratifying the Convention will not be put off by the Convention’s compulsory dispute resolution mechanism.136 As a result of this competition, States may forum shop and tribunals may seek to make themselves more amenable to perceived State preferences.137

Another boon to the competitive system is the investor-State dispute resolution

procedure under many bilateral investment treaties.138 Here the competition works slightly differently, as disputes are referred to arbitration. Since each tribunal is constituted afresh, panel members, particularly the tribunal’s President, are aware that their decisions will have an effect on the likelihood that they will be appointed to some future panel. They are, therefore, more likely to adhere to their roles.

131 Similar mechanisms appear in the Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, art. 19, 30 I.L.M. 1455; the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Aug. 4, 1995, art. 30, 2167 U.N.T.S. 3, 34 I.L.M. 1542; and the Convention on the Regulation of Antarctic Mineral Resource Activities, June 2, 1988, arts. 56-57, 27 I.L.M. 859 (not in force). Nonbinding dispute settlement provisions that include choice of fora include the United Nations Framework Convention on Climate Change, May 9, 1992, art. 14, 1771 U.N.T.S. 107, 31 I.L.M. 809; the Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, art. 11, 26 I.L.M. 1520; the Convention on the Conservation of Antarctic Marine Living Resources, May 20, 1980, art. 25, 33 U.S.T. 3476, 19 I.L.M. 841; and the Convention on Biological Diversity, June 5, 1992, art. 27, 1760 U.N.T.S. 143, 31 I.L.M. 818.132 United Nations Convention on the Law of the Sea, Dec. 10, 1982, art. 287, 1833 U.N.T.S. 396. 133 See UNCLOS, art. 287(5). 134 See Tullio Treves, Conflicts Between the International Tribunal for the Law of the Sea and the International Court of Justice, 31 N.Y.U. J. INT’L L. & POL. 809, 817 (1999). 135 See 5 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A COMMENTARY 41-45 (Myron H. Nordquist, Shabtai Rosenne, & Louis B. Sohn eds., 1989); NATALIE KLEIN, DISPUTE SETTLEMENT IN THE UN CONVENTION ON THE LAW OF THE SEA 54 (2005); Shabtai Rosenne, UNCLOS III – The Montreux (Riphagen) Compromise, in REALISM IN LAW-MAKING: ESSAYS ON INTERNATIONAL LAW IN HONOUR OF WILLEM RIPHAGEN 169 (Adriaan Bos & Hugo Siblesz eds., 1986). 136 See Jonathan I. Charney, The Implications of Expanding International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea, 90 AM. J. INT’L L. 69, 71 (1996). 137 See, e.g., Donald L. Morgan, Implications of the Proliferation of International Legal Fora: The Example of the Southern Bluefin Tuna Cases, 43 HARV. INT’L L.J. 541, 550-51 (2002) (explaining why ITLOS’s procedural practices, such as expediency, and interpretations of substantive law, such as the precautionary principle, might make it an attractive forum for certain States). 138 See, e.g., Treaty Between the United States of America and the Hashemite Kingdom of Jordan on the Encouragement and Reciprocal Protection of Investment, art. IX, S. Treaty Doc. 106-30, entered into force June 13, 2003.

Competition among courts is not purely theoretical. Alain Pellet, who has appeared

many times before the ICJ and other international courts, noted recently that “Parties have the impression that the political, financial and human efforts involved in their consent to bring a case to the World Court are not compensated and they therefore turn toward other fora, which are perhaps less prestigious, but just as effective.”139 The impact of this competitive framework is already evident in the acts of courts. Older institutions have updated their rules to make them more user-friendly.140 And practices or powers of one court – such as the authority to issue binding provisional measures and the use of law clerks – are being adopted or sought by other courts in the hope that they will make them more attractive to potential litigants or at least as attractive as their competitors.141

B. Limitations on Competitive Adjudication

Competitive adjudication works, though, only if judges feel the need to compete. Consequently, when courts are guaranteed sufficient business (that is, when they have exclusive and compulsory jurisdiction and when States have no option but to accede to their jurisdiction), they will not yield to the pressures of competition. For example, the European Court of Human Rights (ECHR) has compulsory jurisdiction over the member states of the Council of Europe for violations of the European Convention on Human Rights. The only mechanism of exit is withdrawal from the Council of Europe, which is not a desirable option for most States. Consequently, the ECHR has no effective competition.142 So, too, the European Court of Justice (ECJ), which – in the wake of two recent efforts by member States to adjudicate claims by ad hoc arbitration – declared last year that it had “exclusive jurisdiction . . . in regard to the resolution of disputes between Member States concerning the interpretation and application of Community law.”143 EU Member States are therefore prohibited from bringing disputes to courts and tribunals

139 Alain Pellet, Remarks on Proceedings Before the International Court of Justice, 5 LAW & PRAC. INT’L CTS. & TRIBUNALS 163, 181-82 (2006). 140 See, e.g., International Court of Justice, Rules of Court, available at http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicrulesofcourt_ 20050929.htm; International Court of Justice, Practice Directions, available at http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/eCourt_Practice_ Directions.pdf; Permanent Court of Arbitration, Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two States, available at http://www.pca-cpa.org/ENGLISH/BD/BDEN/2STATENG.pdf; Permanent Court of Arbitration, Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment, available at http://www.pca-cpa.org/ENGLISH/BD/BDEN/ENVIRONMENTAL.pdf. 141 See, e.g., See LaGrand Case (Ger. v. U.S.), Judgment, 2001 I.C.J. 104 (June 27) (holding that provisional measures issued by the court are binding); Speech by H.E. Judge Rosalyn Higgins, President of the International Court of Justice, to the General Assembly of the United Nations (Oct. 26, 2006) (“Quite simply, the International Court of Justice can no longer provide the service that Member States bringing cases desire if it, as the principal judicial organ of the United Nations, is denied what is routinely accorded to every other senior court.”), available at http://www.icj-cij.org/icjwww/ipresscom/SPEECHES/ispeechpresident _higgins_20061026.htm; Romano, supra note 52, at 288. 142 At most, it engages in a dialogue with other international human rights courts. See Antonio Augusto Cançado Trindade, The Merits of Coordination of International Courts on Human Rights, 2 J. INT’L CRIM. JUST. 309 (2004). 143 Case C-459/03, Commission v. Ireland, [2006] ECR I-4635, para. 132. See generally Nikolaos Lavranos, Protecting Its Exclusive Jurisdiction: The MOX Plant-Judgment of the ECJ, 5 LAW & PRAC. INT’L CTS. & TRIBUNALS 479 (2006). This accords with the ECJ’s refusal to give direct effect to WTO Appellate Body decisions. See Case C-149/96, Portugal v. Council, [1999] ECR I-8395, para. 47; Case C-377/02, Van Parys v. Belgisch Interventie- en Restitutiebureau, [2005] ECR I-1465, para. 48. See generally Nikolaos Lavranos, The Communitarization of WTO Dispute Settlement Reports: An Exception to the Rule of Law, 10 EUR. FOREIGN AFF. REV. 313 (2005).

other than the ECJ when a question of European law is at issue (and the Court gave a wide interpretation of what constitutes European law). In monopolistic systems, such as these, competitive adjudication will not succeed. V. CONCLUSION: COHERENCE AND COMPETITION

The international system needs more not less mechanisms for dispute resolution. Consequently, when judicial controls have broken down or are ineffective, there is the need to repair them. Like all types of reform, control regeneration is difficult but not inconceivable. In the context of international courts, control reform must take into account judicial independence and, to be effective, must also be sensitive to the structural constraints inherent in the international system. Competition accomplishes this by ensuring that the needs of courts and their judges are linked with the needs of States. Competition is not only a innocuous means of control; it also a valuable technique for the creation of better rules.

Many have worried that competition (and conflicts) among courts will lead to

incoherence and unpredictability in the law and that will undermine the authority of the international legal system, which is already short on credibility.144 Jurisdictional overlap, in the words of one commentator, “causes a host of problems such as legal uncertainty for the parties, endless proceedings through forum-shopping and re-litigation of the same dispute before different courts and tribunals, creation of ‘self-contained’ regimes, fragmentation of international law, and, ultimately, deterioration of the authority of dispute settlement mechanisms.”145 If we care about international courts and international law, the argument goes, we should do what we can to reduce, if not eliminate, conflict among courts.

Those who worry about incoherence propose two types of mechanisms to resolve

such conflicts. The first imagines a hierarchical judicial system, such as by making the ICJ a court of appeal, giving the ICJ the authority to render preliminary rulings (modeled on the ECJ), extending the ICJ’s advisory jurisdiction, or creating a Tribunal des Conflits (modeled on the French system for resolving disputes between the Conseil d’Etat and the Cour de Cassation).146 The second is based on judicial comity, res judicata, lis pendens, or other “system-protective doctrines” to be created and implemented by judges.147 Because “there is no central judicial authority [in international law] which can impose order over the entire field so as to secure unity in the overall development of the law,”

144 See, e.g., SHANY, supra note 28, at 94, 125-26; Symposium, Diversity or Cacophony?: New Sources of Norms in International Law, 25 MICH. J. INT’L L. 963 (2004); 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 (1999); 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, 366 (2006). 145 Nikolaos Lavranos, The MOX Plant and IJzeren Rijn Disputes: Which Court Is the Supreme Arbiter?, 19 LEIDEN J. INT’L L. 223, 242 (2006). 146 See id. at 243-45. 147 See SHANY, supra note 28, at 278; Lavranos, supra note 145, at 245-46; Martinez, supra note 28, at 448; August Reinisch, The Use and Limits of Res Judicata and Lis Pendens, 3 LAW & PRAC. INT’L CTS. & TRIBUNALS 37 (2004); Mohamed Shahabuddeen, Consistency in Holdings of International Tribunals, in 1 LIBER AMICORUM JUDGE SHIGERU ODA 633 (Nisuke Ando, Edward McWhinney, & Rüdiger Wolfrum eds., 2002).

Judge Shahabuddeen has written, “there is a legal duty to take account of the need for coherence in the whole field.”148 Such judicial “self-organizing,” it is claimed, “is almost certainly a necessary precondition” of “an international judicial system that functions well in all situations.”149

Even assuming that’s true, coherence and order prioritize style over substance, form

over outcome. Most importantly, coherence presupposes a legal system that contains adequate control mechanisms. Without adequate control mechanisms, however, a well-regulated system will not be a well-subscribed system. Coherence is a luxury afforded to us by control. Further, competition and coherence are not necessarily in tension. It is entirely possible that, after an initial period of competition in a particular substantive area, coherent rules will emerge, and, indeed, this has been the case in some areas of law.150 If competition is the priority, then we should think more about competition-enhancing devices, such as treaty provisions like those in UNCLOS that provide a choice of forum, or doctrines that mediate the precedential effect of decisions,151 or the simple encouragement of dissenting opinions.152 Indeed, instead of striving for uniformity, we should accept and develop a system of competitive adjudication in international law.

148 Separate Opinion of Judge Shahabuddeen, Semanza v. The Prosecutor, Decision, International Criminal Tribunal for Rwanda, Appeals Chamber (May 31, 2000), paras. 25, 28. 149 Martinez, supra note 28, at 448. 150 See, e.g., Charney, supra note 27, at 345. 151 Cf. Nathan Miller, An International Jurisprudence? The Operation of “Precedent” Across International Tribunals, 15 LEIDEN J. INT’L L. 483 (2002). 152 Cf. Meredith Kolsky Lewis, The Lack of Dissent in WTO Dispute Settlement, 9 J. INT’L ECON. L. 895 (2006).

PROPOSAL 2

Juscelino F. Colares Syracuse University

Alternative Methods of Appellate Review in Trade Remedy Cases:

Examining Results of U.S. Judicial and NAFTA Binational Review of U.S. Agency Decisions from 1989 to 2005

When the United States and Canada agreed to replace U.S. judicial review of trade-remedy cases with a new dispute mechanism under Chapter 19 of the Canada-United States Free Trade Agreement (now the North American Free Trade Agreement), the U.S. Congress and trade negotiators stipulated that the new dispute settlement panels would apply U.S. law and standard of review in the same manner as U.S. courts. This requirement was embodied in the text of the agreement and has at least nominally been applied by Chapter 19 panels ever since. Empirical analysis of seventeen years of decisions now allows a conclusion with a high degree of confidence that Chapter 19 panels are far more likely than U.S. courts to overturn U.S. agency decisions. Not only that, but Chapter 19 panels have produced outcomes more favorable to Canadian importers than have U.S. courts. This outcome illustrates that the facial legal terms of an international agreement may give a misleading impression of how it will actually be implemented, and suggests that greater attention must be paid to how it will be interpreted and by whom.

Introduction†

Quantitative analysis on the economic effects and trends of trade liberalization has been both frequent and sophisticated. Vast quantities of easily accessible aggregate data including multiple countries' trade volumes, average tariff levels and gross domestic product are available to economists from governmental or private sources. Perhaps due to the difficulty in obtaining quantitative data on legal phenomena related to the operation of the different international trade regimes, legal scholarship has scarcely used statistical analysis. This means that we have come to understand a good deal about the broad quantifiable economic consequences of trade agreements, but remain largely confined to anecdotal accounts of how such agreements have affected and been impacted by the legal proceedings taking place in the domestic and international legal infrastructure.1 Thus, studying what can be quantified in the operation of this legal architecture is critical for an

† The author is grateful to the Office of the Clerk of the United States Court of International Trade, especially to Leo Gordon, former Clerk, for their assistance in the collection of data on agency court remand determinations. John W. Bohn, attorney at Dewey Ballantine, LLP (Washington, D.C.) collected a portion of the data on NAFTA panel decisions. Many thanks to Jeffrey J. Rachlinski and Kevin M. Clermont for insightful comments and suggestions in the various phases of this project. The Barclay Law Library staff at Syracuse University College of Law and my research assistants, Carrie J. Lonsinger and Jennifer Liu, were instrumental in bringing this Article to fruition. 1 For one such brilliant anecdotal study, see Daniel K. Tarullo, The Hidden Costs of International Dispute Settlement: WTO Review of Domestic Anti-Dumping Decisions, 34 LAW & POL'Y INT'L BUS. 109, 110 (2002).

understanding of how international trade law has evolved as it has been applied by the institutions charged with adjudicating international trade disputes. This effort may also contribute to a more complete comprehension of the processes underlying economic change.

The United States, like Canada and nearly every other industrialized nation, maintains "trade remedy" laws that authorize U.S. administrative agencies to impose duties on imported goods they find to be "dumped" or subsidized. These antidumping (AD) and countervailing duty (CVD) determinations are subject to review by U.S. federal courts. Chapter 19 of the Canada-United States Free Trade Agreement (CUSFTA) and its successor,2 the North American Free Trade Agreement (NAFTA), allowed replacing review of agency decisions by national judges on trade-remedy cases with review by binational panels appointed jointly by the governments involved.3 Chapter 19 requires these binational panels to review agency decisions on AD and CVD law using the same standard of review and substantive law as would the domestic courts they replace.4 NAFTA also prohibits domestic judicial review once one of the members requests the formation of a panel, and requires them to obey the decisions of these panels.5 The U.S. and Canadian governments adopted this arrangement as a compromise, after the United States rejected Canada's demands that CUSFTA eliminate all antidumping and countervailing duties in trade between the two countries.6 Canadians reasoned that this new mechanism for review of agency decisions would put a check on what they perceived as a predisposition on the part of U.S. agencies to rule in favor of U.S. industry petitioners.7

Prior studies of Chapter 19 agree that these panels overturn U.S. agency decisions more often than U.S. judges. Yet, none of these studies has provided an actual empirical comparison of how review has been different under these two systems. This Article reviews prior research and extends it by comparing the results of judicial review of U.S. agency determinations with Chapter 19 review.

I. Operation of U.S. Trade Remedy Law

2 Technically speaking, NAFTA did not terminate CUSFTA, which remains in operation, as specified in North American Free Trade Agreement, U.S.-Can.-Mex., Art. 103(1), Dec. 17, 1992, 32 I.L.M. 289, 297 (1993) [hereinafter NAFTA]. CUSFTA provisions that are inconsistent with NAFTA are no longer in effect. Id. Art. 103(2), 32 I.L.M. at 297. 3 See Canada-United States Free Trade Agreement, U.S.-Can., Art. 1904, Jan. 2, 1988, 27 I.L.M 281, 387; NAFTA, supra note 2, Art. 1904, 32 I.L.M. at 683. 4 See CUSFTA, supra note 3, Art. 1904(3), 27 I.L.M at 387; NAFTA, supra note 2, Art. 1904(3), 32 I.L.M. at 683. 5 See CUSFTA, supra note 3, Art. 1904(1), 27 I.L.M at 387; NAFTA, supra note 2, Art. 1904(1), 32 I.L.M. at 683. 6 Michael Hart, Dumping and Free Trade Areas, in ANTIDUMPING LAW AND PRACTICE 326, 336-41 (John H. Jackson & Edwin A. Vermulst eds., 1989). 7 U.S. GENERAL ACCOUNTING OFFICE, GAO/GGD-95-175BR, U.S-CANADA FREE TRADE AGREEMENT: FACTORS CONTRIBUTING TO CONTROVERSY IN APPEALS OF TRADE REMEDY CASES TO BINATIONAL PANELS 3 (1995) [hereinafter GAO Report].

The AD and CVD law in the United States is a complex set of statutes designed to ensure that the executive branch takes action against unfair trade practices by foreign countries and/or foreign companies trading with the U.S. Usually, a U.S. manufacturer files a petition with the U.S. Department of Commerce (Commerce).8 The petition must claim that imports from another country have benefited from government subsidies or are being sold in the U.S. at prices lower than in their home market (dumping).9 After a brief preliminary inquiry into sufficiency of the petition, Commerce then conducts an investigation to determine if the petitioner's claims are valid.10 Concurrently, the U.S. International Trade Commission (ITC) investigates whether the U.S. domestic industry has suffered injury by reason of such imports.11 If both agencies make affirmative determinations, then Commerce calculates an offsetting duty that will be applied against the subject import.12

Agency determinations can only be reviewed by the U.S. Court of International Trade (CIT), an Article III court sitting in New York City.13 The U.S. Court of Appeals for the Federal Circuit (CAFC) has exclusive appellate jurisdiction over final decisions of the CIT.14 The U.S. Supreme Court has discretion to review CAFC decisions,15 though it has reviewed only a handful of AD and CVD cases in the last hundred years.16

Review of U.S. agency final determinations occurs under the "substantial evidence" standard. Under this standard, the reviewing court decides whether such determinations are "unsupported by substantial evidence on the record, or otherwise not in accordance with law."17 Specifically, this standard has been interpreted to be the equivalent of asking "is the determination unreasonable?"18 In the majority of cases, when deciding whether an agency's decision is "not in accordance with law," a court will provide some deference to the agency's legal interpretations, upholding them unless they are "effectively precluded by the statute."19

While this review process is open to all foreign parties who wish to appeal U.S. agency determinations before U.S. courts, NAFTA member countries have another option in Chapter 19 panel review.

II. The Chapter 19 Review System

8 19 U.S.C. §§ 1671a(b) (CVD) & 1673a(b) (AD) (2006). 9 See id. 10 19 U.S.C. §§ 1671a(c) & 1673a(c). 11 19 U.S.C. §§ 1671d(b) (CVD) & 1673d(b) (AD). 12 19 U.S.C. §§ 1671d(c) (CVD) & 1673d(c) (AD). 13 See 28 U.S.C. § 1581 (2006). 14 28 U.S.C. § 1295(a)(5). 15 28 U.S.C. § 1254. 16 The last case the Court reviewed was Zenith Radio Corp. v. United States, 437 U.S. 443 (1978). 17 19 U.S.C. § 1516a(b)(1)(B)(i). 18 Nippon Steel Corp. v. United States, Nos. 05-1404 & 05-1417, slip op. at 9 (Fed. Cir. Aug. 10, 2006) (internal punctuation omitted) (quoting SSIH Equip. SA v. U.S. Int'l Trade Comm'n, 718 F.2d 365, 381 (Fed. Cir. 1983) (Nies, J., concurring)). 19 PPG Indus. v. United States, 928 F.2d 1568, 1573 (Fed. Cir. 1991).

Chapter 19 came into effect on January 1, 1989.20 It was in part a result of a compromise between Canada—which had wanted complete exemption from U.S. AD law21—and the United States—which was not ready to do so unless Canada agreed to a stricter set of rules against subsidies.22 This arrangement, a product of last-minute negotiations,23 enabled the two trading partners to enter what they perceived as a mutually advantageous agreement. At the time, the United States and Canada had the largest bilateral trade relationship in the world.24 The United States was Canada's largest export market and Canada was the United States' second largest export market, ranking only behind Japan.25 To Canada, improved access to the largest consumer market in the world—combined with the increase in U.S. and other foreign direct investment that normally follows the creation of a free trade area—provided a number of benefits, including the long-term permanence in Canada of Canadian and foreign-owned multinational corporations (MNCs).26 From a U.S. perspective, the FTA would, among other things, ensure an open investment environment in Canada for U.S. companies, and facilitate U.S. access to vast Canadian energy resources.27 Chapter 19 was later extended to Mexico when it entered into the NAFTA in 1994.28

To implement a more closely integrated dispute settlement regime for trade remedy investigations in the NAFTA area, members agreed to waive their sovereign right to have their agency determinations be reviewed by their domestic courts, opting instead for review by binational panels.29 Agency compliance with its country's domestic trade remedy laws, as determined by these binational panels, would be the measure of that country's compliance with its NAFTA obligations.30 Thus, parties from NAFTA countries affected by U.S. trade remedy determinations were given the option to seek either U.S. judicial or Chapter 19 panel review.31 However, a request for the formation

20 CUSFTA, supra note 3, Art. 2105, 27 I.L.M. at 399. 21 See Hart, supra note 6, at 336-37. 22 Charles M. Gastle & Jean-G. Castel, Should the North American Free Trade Agreement Dispute Settlement Mechanism in Antidumping and Countervailing Duty Cases Be Reformed in the Light of Softwood, 26 LAW & POL'Y INT'L BUS. 823, 829 (1995). 23 Charles M. Gastle, Policy Alternatives for Reform of the Free Trade Agreement of the Americas: Dispute Settlement Mechanisms, 26 LAW & POL'Y INT'L BUS. 735, 743 (1995) (explaining that Chapter 19 was a "last-minute compromise that [had] saved the free trade negotiations."). 24 See S. Comm. on Finance, Report of the Committee on Finance, in Approving and Implementing the United States-Canada Free-Trade Agreement: Reports and Other Materials, S. Rep. No. 100-509, at 3, 8 (1988). 25 Id. 26 See, e.g., RALPH H. FOLSON ET AL., NAFTA—A PROBLEM ORIENTED COURSEBOOK 6 (2000) (noting that "the majority of exports from MNCs in Canada are intra-firm exchanges," and explaining how this fact influenced MNCs decisions to maintain operations in Canada despite the removal of tariff barriers). 27 See The Constitutionality of Establishing a Binational Panel to Resolve Disputes in Antidumping and countervailing Duty Cases: Hearing on United States-Canada Free Trade Agreement Before the S. Comm. on the Judiciary, 100th Cong. 2 (1988) (Statement of Ambassador Alan F. Homer, Deputy United States Trade Representative). 28 NAFTA, supra note 2, Art. 2203, 32 I.L.M. at 702. For convenience, this Article will refer to NAFTA rather than the CUSFTA unless there is a particular need to distinguish the two. 29 NAFTA, supra note 2, Art. 1904(1), 32 I.L.M. at 683. 30 NAFTA, supra note 2, Art. 1904(2), 32 I.L.M. at 683 31 See 19 U.S.C. § 1516a(a)(2); NAFTA, supra note 2, Art. 1904(5), 32 I.L.M. at 683.

of a binational panel by any party who took part in the agency proceedings forecloses U.S. court review of such determinations.32

Panels, which consist of "experts" in international trade matters (usually lawyers in private practice), are bound to apply the domestic law of the party whose agency order is challenged, i.e., the law of the importing country.33 More importantly, as reviewing authorities, NAFTA panels must apply "the standard of review . . . and the general legal principles that a court of the importing party otherwise would apply to" determinations of the competent agencies in the importing country.34 Therefore, NAFTA panels reviewing Commerce or ITC trade remedy decisions are bound to (a) apply U.S. trade remedy law; and (b) employ the statutorily mandated standard of review and assume a level of deference similar to that extended to such agencies by the CIT and the CAFC.35

In contrast to the U.S. judicial review system where the Federal Courts of Appeal have no discretion to refuse appeals of final determinations from lower courts,36 there is no appeal as a matter of right from a panel decision. Under NAFTA, only governments can file a request for an "extraordinary challenge" to a panel decision.37 Extraordinary Challenge Committees ("ECCs") exist partly to ensure that NAFTA decisions remain consistent with domestic law and precedent,38 but are permitted only in relatively extreme circumstances. For example, a government can file an extraordinary challenge if a panelist is guilty of "gross misconduct," or the Panel "manifestly exceeded its powers, authority or jurisdiction . . . for example by failing to apply the appropriate standard of review," but even then only if such an action "materially affected the panel's decision and threatens the integrity of the binational panel review process."39

III. Earlier Studies on the Record of Chapter 19 Review

Many authors have in some way sought to compare the results of Chapter 19 review of U.S. agency decisions with the outcomes of adjudication by the CIT and CAFC.40 They

32 19 U.S.C. § 1516a(g)(2); NAFTA, supra note 2, Art. 1904(11), 32 I.L.M. at 683. 33 Id.; NAFTA, supra note 2, Annex 1901.2(1)-(2), 32 I.L.M. at 687. 34 NAFTA, supra note 2, Art. 1904(3), 32 I.L.M. at 683. 35 See id.; accord GAO Report, supra note 7, at 35. 36 See 28 U.S.C. §§ 1291, 1295. 37 NAFTA, supra note 2, Art. 1904(13), 32 I.L.M. at 683. 38 Pure Magnesium from Canada, No. ECC-2003-1904-01USA, at ¶ 29 (Oct. 7, 2004) (ECC should not permit "formation of two streams of anti-dumping and countervail duty law, one developed by binational panels and one by courts; a result that is clearly antithetical to the whole construct of Chapter 19"). Cf. Synthetic Baler Twine with a Knot Strength of 200 Lbs. or Less Originating in or Exported from the United States of America, No. CDA-94-1904-02, at 12 (Apr. 10, 1995) (binational panel should use same standard of review as Canadian federal court, even though binational panels are particularly expert in international law, to ensure "certainty, consistency, and predictability in decision-making" between decisions involving NAFTA and non-NAFTA members). 39 NAFTA, supra note 2, Art. 1904(13), 32 I.L.M. at 683. 40 See Patrick Macrory, NAFTA Chapter 19: A Successful Experiment in International Trade Dispute Resolution, C.D. HOWE INST. COMMENT. Sept. 2002, at 1; Jennifer Danner Riccardi, The Failure of Chapter 19 in Design and Practice: An Opportunity for Reform, 28 OHIO N.U.L. REV. 727 (2002); Kent Jones, Does NAFTA Chapter 19 Make a Difference? Dispute Settlement and the Incentive Structure of

all have noted that Chapter 19 panels overturn agency decisions more often than the U.S. courts.41 Most consider this a desirable outcome or at least one permissible under U.S. law.42 Some studies have also compared how Chapter 19 panels review U.S. and Canadian agency decisions. They have concluded that Chapter 19 panels have showed far more deference to Canadian decisions, and have ruled more often in favor of petitioners from Canada.43 None of these studies, however, has systematically looked at the outcomes of all Chapter 19 decisions during both CUSFTA & NAFTA periods. They relied on either data available from the CUSFTA period or data from the earlier years of NAFTA. More importantly, no prior study has compared the results of Chapter 19 review with outcomes of U.S. judicial review.

IV. Empirical Analysis of Federal Judicial and NAFTA Review of U.S. Agency Determinations on Trade Remedy Cases from 1989 to 2005

A. Statement of Hypotheses and Some Methodological Considerations

To empirically verify whether the agreed-upon review mechanism of NAFTA has behaved similarly to the CIT/CAFC review system, one has to look at quantifiable aspects of decisions by these parallel adjudicatory systems. To confirm or refute the general impression that NAFTA panels have been less deferential to U.S. agency decisions than U.S. courts, one must examine AD/CVD rate, scope and injury decisions before and after review.44 The goal was to test the following two hypotheses:45

H1: NAFTA panel review is less likely to leave rate determinations unchanged

than U.S. federal court review; and U.S./Canada Unfair Trade Petitions, CONTEMP. ECON. POL'Y, Apr., 2000, at 145; Eric J. Pan, Assessing the NAFTA Chapter 19 Binational Panel System: An Experiment in International Adjudication, 40 HARV. INT'L L.J. 379 (1999); Judith Goldstein, International Law and Domestic Institutions: Reconciling North American "Unfair" Trade Laws, 50 INT'L ORG. 541 (1996); John M. Mercury, Chapter 19 of the United States-Canada Free Trade Agreement 1989-95: A Check on Administered Protection?, 15 NW J. INT'L L. & BUS. 525 (1995); GAO Report, supra note 7, at 2; JAMES R. CANNON, JR., RESOLVING DISPUTES UNDER NAFTA CHAPTER 19 chs. 13-14 (1994); Michael Krauss, The Record of the United States-Canada Binational Dispute Resolution Panels, N.Y. INT'L L. REV. 85 (Summer, 1993); Andreas F. Lowenfeld, Binational Dispute Settlement Under Chapter 19 of the Canada-United States Free Trade Agreement: An Interim Appraisal, 24 N.Y.U. J. INT'L L. & POL. 269 (1991). 41 See id. 42 See Macrory, supra note 40, at 18; Jones, supra note 40, at 149; Pan, supra note 40, 442-44; Goldstein, supra note 40, at 562; Mercury, supra note 40, at 527-28; Lowenfeld, supra note 40, at 338. 43 See, e.g., Mercury, supra note 40, at 529-35, 568-72; Jones, supra note 40, at 149. 44 To simplify sentences and facilitate the flow of text in this Part, the term "rate(s)," will also be used to refer to decisions about the scope of an order. For substantive, not textual, reasons explained in the text below, injury determinations are also subsumed under the general label "rates." 45 Technically, "[t]he hypothesis that is actually tested is . . . the null hypothesis," which generally states that "there is no difference between [the two] groups [studied] or relationship between the variables . . .." HUBERT M. BLALOCK, JR., SOCIAL STATISTICS 156 (MCGRAW HILL, Revised 2d ed. 1979). Accordingly, in this study, the "null" states that there is no difference between the two review systems under any of these research hypotheses.

H2: NAFTA panel review is less likely to result in rate increases than U.S. federal court review.

The foremost purpose of these hypotheses is twofold: (a) to allow for an examination of agency deference from a neutral, non-subjective perspective; and (b) to monitor the impact of NAFTA or judicial review on these agencies' original determinations. In applying U.S. trade remedy statutory law, Commerce and the ITC issue determinations that either establish or deny the imposition of AD/CVD remedies to imports deemed to be within the scope of their investigations. From both legal and economic perspectives, these decisions about duty rates or scope (Commerce) and injury (ITC) constitute the core of these agencies' determinations. Examining what happens to the quantifiable dimensions of such decisions once judicial or NAFTA review is completed allows us not only to test empirically whether these two systems have approached agency decisions similarly, but also permits assessment of the overall impact of judicial or NAFTA review on these decisions.

To accomplish these goals, the first hypothesis tests specifically whether original AD/CVD rate determinations by U.S. agencies have the same "success" rate under the two review systems. By looking at whether the final results of either type of review maintain or alter the original agency decision—by reference to what happens to the rate after all review is completed—one can develop a picture of how often agency findings (whether affirmative or negative) receive deference. For our purposes, an agency "win" is either an outright affirmance by the CIT or NAFTA panel or an affirmance of a determination on remand that leaves the original rate undisturbed. Conversely, a "loss" occurs whenever the rate changes as a result of review. Assuming ceteris paribus conditions, if one detects statistically significant differences in the way the two adjudicatory systems approach agency decisions under review, one can then identify one of these two systems as being systematically less deferential than the other.

Looking at a subset of these cases, the data collected under the second hypothesis is designed to determine what happens to rates when an agency is reversed. This hypothesis notably excludes cases where agencies have "won," as explained in the first hypothesis. By examining how rates change as a result of review, one can detect whether a particular statistically significant trend in the direction of rates exists. Specifically, cases where rates remain the same after review are excluded, do these adjudicatory systems differ in terms of trends in post-review rates in such a way that one tends to reduce or increase rates more than the other? If one of these review systems is more likely to reduce agency-determined AD/CVD rates than the other, then one can consider that particular system to be more beneficial to exporting/importing interests than to the competing domestic industry in the importing country. Thus, by determining that one review system is more likely to increase (or decrease) rates than the other, one should be able to identify which set of economic interests tend to benefit more under each system—an inquiry beyond the notion of deference, tested in the first hypothesis.

In sum, should empirical analysis support these two hypotheses, one would be justified in concluding that binational review under NAFTA has failed to comply with the

requirement that it apply the U.S. substantive law under the same principles of administrative review that prevail in U.S. courts. Such sustained pattern of adjudication that limits the operation of U.S. trade remedy statutes would amount to a failure to comply with the basic terms of the bargain to which NAFTA members agreed.

B. The Data

To test the two hypotheses, we collected data covering completed results of CIT/CAFC review and NAFTA binational review in the period from January 1, 1989 to December 31, 2005. These results focused on determinations made by the Department of Commerce and the ITC. For CIT/CAFC review, the two main sources of primary data were (a) the United States Court of International Trade Reports (1989-1999);46 and (b) the Websites of the CIT (1999-2005),47 CAFC and Georgetown Law Library (1995-2005), which contain all decisions by these courts during the relevant period.48 Of all CIT/CAFC opinions, we looked only at trade remedy cases, discarding other types of litigation, such as appeals of Customs decisions to the CIT/CAFC and appeals of government contracts, patents, trademarks, and certain money claims against the U.S. government to the CAFC. We also examined the effects of CAFC reversal of CIT decisions. As we looked at each of these decisions, we monitored subsequent developments on remand by looking at agency remand redeterminations according to the "Case File Number" assigned at the CIT.

Because the CIT issues on average more than 120 decisions regarding trade remedy determinations every year, an algorithm was used to restrict the size of the sample to manageable proportions while assuring randomness. This algorithm is based on the last five digits of the "Case File Number" assigned at random to all CIT decisions. If the sum of these digits divided by three yields an integer, the case enters the sample. However, if the selected case involves procedural issues (e.g., requests for injunctions, mandamus, motions for rehearing, etc.) not relevant for comparison with NAFTA dispute settlement, that selected case, though part of the sample, will not appear in the total number of observations.

The initial agency rate was obtained either from the Federal Register notice communicating the results of the agency's final determination or from the court's opinion. To obtain information about what happened to rates when the CIT did not affirm, we searched through the Federal Register database for information about agencies' redeterminations on remand.49 When we did not succeed in obtaining any information through this means, we contacted the Office of the Clerk of the CIT and requested information about these particular remands. This was particularly necessary for remand 46 UNITED STATES COURT OF INTERNATIONAL TRADE REPORTS: CASES ADJUDGED IN THE UNITED STATES COURT OF INTERNATIONAL TRADE, vol. 13-23 (1989-1999). 47 Court of International Trade Website, http://www.cit.uscourts.gov/slip_op/slip-op.html (last visited Nov 10, 2006). 48 Court of Appeals for the Federal Circuit Website, http://www.fedcir.gov/ dailylog.html (last visited Nov. 10, 2006); Georgetown Law Library Website, http://www.ll.georgetown.edu/ federal/judicial/cafed.cfm (last visited Nov. 10, 2006). 49 Federal Register Database, http://www.gpoaccess.gov/fr/index.html (last visited Nov. 10, 2006).

redeterminations issued between January 1, 1989 and May 16, 1997, because the Department of Commerce has not published its remand results for this period and in some cases may not retain them. Remand redeterminations for the relevant cases in the remaining period of the sample were obtained from the Department's Website.50 However, because information about some of these cases was proprietary, we were not granted access to such remands and could not reach a decision with respect to rates for such cases, and thus had to eliminate them from the sample.

Because only 42 completed Chapter 19 cases reviewing U.S. agencies' determinations occurred during the research period, we were able to collect data on the entire population of published cases before NAFTA panels. Primary data on these Chapter 19 cases was obtained from the NAFTA Secretariat's database of panel and ECC decisions.51 We also monitored subsequent developments on remand by looking at agency remand redeterminations to determine how prior rate decisions were affected. Information about pre- and post-NAFTA review agency rates was collected from Federal Register notices and the text of NAFTA panel or ECC reports following remand.

Upon completion of data collection, each case was coded for purposes of hypothesis testing. While detailed information about how cases in each table were coded is presented in the section below, the final decision with respect to where a particular case fits is based on the final outcome of review once all remand activity, if any, was approved by the reviewing body.

In order to include ITC cases within the sample, we developed a method that allowed converting review results from injury determinations into a rate-based approach. Because of the binary nature of injury determinations in U.S. trade remedy law, final judicial or NAFTA review of affirmative injury determinations can result in either affirmance or revocation of the underlying AD/CVD duty order.52 Therefore, an affirmance of an affirmative injury determination was coded as a decision that does not alter the rate, while a final decision vacating or calling for the revocation of a prior affirmative injury determination on remand means that the rate is in effect reduced (i.e., the rate actually disappears) as a result of the order being revoked. Accordingly, final affirmance of a negative injury determination was interpreted as a decision that leaves the rate unchanged (i.e., the rate remains at zero as no order imposing offsetting duties exists), while a court or panel-mandated remand that subsequently results in the ITC issuance of an affirmative injury remand redetermination was counted as a change in rates, since duty rates will necessarily be imposed and rates will change from zero upwards.

C. Statistical Comparison of Chapter 19 and U.S. Judicial Review Outcomes

1. First Hypothesis: NAFTA panel review is less likely to leave rate determinations unchanged than U.S. federal court review

50 See ITA Website, http://ia.ita.doc.gov/remands/ (last visited on Nov. 10, 2006). 51 NAFTA Secretariat's Database, http://www.nafta-secalena.org/DefaultSite/ index_e.aspx?DetailID=76 (last visited on Nov. 10, 2006). 52 19 U.S.C. §§ 1671(a) & 1673.

To test this hypothesis, we looked at whether the rates prevailing after the conclusion of all review remained the same or changed (upwards or downwards) in comparison with the rates reported at the conclusion of U.S. agencies' trade remedy investigations.53 Table 1 shows the cell frequencies observed for each category of the dependent variable (rows) and independent variable (columns). Table 1

Adjudicating System

CIT/CAFC Review NAFTA Review Row Sum

Rate Status Same Rate 114 67.86% 14 34.15% 128

After Review Different Rate 54 32.14% 27 65.85% 81

Column Sum 168 41 n = 209

Table 1's first row shows that review by U.S. courts results in no change in the agency-determined rate about 68 percent of the time, while NAFTA review maintains the original rate only about 34 percent of the time. Thus, in rounded figures, over 2 challenges in 3 fail to succeed in changing U.S. agencies' rate decisions in U.S. courts. Yet, only 1 challenge in 3 at NAFTA fails to change rates. Table 1's second row shows the same picture from a different perspective: U.S. judicial review of agency determinations change rates less than one-third of the time, while review at NAFTA does so just short of two-thirds of the time.54 These results demonstrate that varying the review system impacts the likelihood that rates will remain the same. To be precise, U.S. judicial review is more deferential to prior agency determinations than NAFTA binational review because it allows the status quo to stand much more frequently. To determine whether a statistically significant relationship exists between "Adjudicating System" and "Rate Status," a Fisher's Exact Test was applied. A p-value of less than .0001 was obtained, which allowed corroborating the hypothesis that NAFTA panel review is less likely to leave rate determinations unchanged than U.S. federal court review. That the source of review affects whether rates change, suggests that U.S.

53 That is, rates established in the Department's original final determinations constitute the baseline for rate comparisons throughout this study. For a number of reasons, not all relevant cases were included in the reported number of observations. An otherwise relevant case was excluded where either (a) the final disposition on review did not occur before December 31, 2005; (b) the information regarding rates after remand was not available, as explained supra Part IV.B; or (c) the final disposition of a case, though occurring at a later year, was recorded earlier (to avoid the risk of double-counting). 54 See appendix for a list of the cases in which NAFTA Review changed rates. Due to the large sample size, the list of the CIT/CAFC cases that resulted in changed rates is not provided.

judicial review is more deferential to agency determinations than NAFTA as a result of the principle of judicial deference prevailing in all administrative litigation in U.S. courts.

2. Second Hypothesis: NAFTA panel review is less likely to result in rate increases than U.S. federal court review

By examining the subset of decisions where U.S. agencies were reversed, we seek to determine if the two review systems also differ with respect to the direction that revised rates assume after review is completed.55 Table 2 displays the observed frequencies for the categories of each variable. Table 2

Adjudicating System

CIT/CAFC Review NAFTA Review Row Sum

Rate Status Increased

Rate 14 31.82% 2 8.00% 16

After Review

Decreased Rate 30 68.18% 23 91.67% 53

Column Sum 44 25 n = 69

Although Table 2 shows that both review systems are more likely to decrease than increase rates when they reverse agencies, it still demonstrates that they differ markedly in terms of how often rates are increased or decreased. When U.S. courts reverse U.S. agencies, their review leads to increased rates about 32 percent of the time or almost 3 times for every 10 reversals. NAFTA does so 8 percent of the time or less than once for every 10 reversals. In relative percentages, NAFTA review is thus four times less likely to result in increased rates than U.S. court review. Conversely, Table 2's second row shows that after NAFTA review, rates are decreased 92 percent of the time compared to only 68 percent of the time in U.S. federal courts.56

Statistical testing (p-value approximately .0212) confirmed the interpretation above, allowing corroboration of the hypothesis that NAFTA panel review is less likely to result in rate increases than U.S. federal court review. That NAFTA review is more likely to result in rate decreases than U.S. judicial review, supports the earlier inference that NAFTA is more beneficial to exporting interests than to the competing U.S. domestic industry seeking relief against foreign trade practices. 55 As with the first hypothesis, not all relevant cases were included in the reported number of observations. In addition to the reasons for exclusion listed supra in note 53, an otherwise relevant case was excluded where either (a) the rates did not differ from the original rates; or (b) the rates assessed to particular companies changed in opposite directions ("mixed-rate" cases). 56 See the appendix for a list of cases where NAFTA Review has decreased rates.

One should note that of the 14 CIT/CAFC reviews that resulted in rate increases, nine were filed by plaintiffs representing the domestic industry.57 To date, such plaintiffs have never initiated a Chapter 19 proceeding (though they have cross-appealed in reaction to importers' appeals). In theory, one could suppose that the difference in outcomes between Chapter 19 and CIT/CAFC adjudication arises because U.S. industries have neglected to file appeals that would have succeeded if they had bothered to pursue them. But it is hard to imagine why U.S. industries would be relatively more neglectful of their own rights in cases with Chapter 19 jurisdiction than in cases with CIT jurisdiction. In both forums it is relatively cheap to appeal, compared with pursuing an investigation, so that if the expense of filing a petition justified pursuing a matter, the chance of filing an appeal with a good chance of success would seem equally to justify doing so. Thus, the reluctance on the part of U.S. domestic industry to request Chapter 19 review likely results from the perception that its chances of success are low. This perception may be based on commentators that have observed different success rates58 and the history of Chapter 19, which was introduced as a result of Canadian complaints that the CIT did not give Canadian parties a sufficient chance of success.

D. Why a Priest-Klein Case Selection Effect Cannot Account for the Results of Chapter 19 Litigation

Priest and Klein posited that samples consisting only of litigated cases are not necessarily representative of the larger population of disputes about which one draws causal inferences.59 In light of this, one may question whether a case selection effect might actually account for the demonstrated propensity of Chapter 19 panels to rule against U.S. agency decisions. If fewer challenges to NAFTA mean only stronger cases are being pursued, the difference in reversal rates between the two systems may be a result of case selection, rather than an indication of less deference in the Chapter 19 system.

Two important facts refute this conjecture. First, from 1989 through 2003 (the most recent year for which statistics on agency orders are available), the U.S. issued 15 AD/CVD orders on Canadian imports,60 all of which were appealed to Chapter 19 panels.61 That Canadian parties chose to challenge every order a U.S. agency issued against their exports—all leading to NAFTA decisions without a single settlement—

57 See the appendix for a list of cases CIT/CAFC cases filed by the domestic industry. 58 See supra note 40. 59 For a detailed discussion of this model, see George Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1 (1984). 60 See INTERNATIONAL TRADE ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE, ANTIDUMPING INVESTIGATIONS CASE ACTIVITY (JAN. 1, 1980 - DEC. 31, 2003), available at http://ia.ita.doc.gov/stats/ad-1980-2003.html (last visited Nov. 10, 2006); INTERNATIONAL TRADE ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE, ANTIDUMPING INVESTIGATIONS CASE ACTIVITY (JAN. 1, 1980 - DEC. 31, 2003), available at http://ia.ita.doc.gov/stats/cvd-1980-2003.html (last visited Nov. 10, 2006); and INTERNATIONAL TRADE ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE, AD/CVD INVESTIGATIONS FEDERAL REGISTER HISTORY, available at http://ia.ita.doc.gov/stats/caselist.txt (last visited Nov. 10, 2006). 61 See NAFTA Secretariat, Decisions and Reports, http://www.nafta-sec-alena.org/DefaultSite/index_e.aspx?DetailID=76 (last visited Nov. 10, 2006).

shows how unselective they have been with respect to their decisions to appeal. In contrast, since New Steel Rails from Canada in 1990,62 U.S. domestic industry has not bothered to appeal any negative dumping, subsidy or injury decision by U.S. agencies regarding Canadian goods, even though appeals typically require much less effort than investigations.63 Second, a comparison of the ratio of Canadian appeals to U.S. agency determinations before and after the creation of the Chapter 19 system shows that the Canadian appeals increased with the inception of Chapter 19 review. Canadian parties appealed 19.5 percent of Commerce determinations to the CIT in the period between January 1985 and December 1988.64 In contrast, Canadians challenged 47 percent of such determinations before Chapter 19 panels in the period from January 1989 to September 1994.65 That Canadian appeals have become more frequent since the creation of Chapter 19 review refutes the notion that these cases are somehow made up of stronger claims.

A similar effect could arise if U.S. agencies discriminated against Canadian imports by imposing a disproportionate number of AD/CVD orders on Canadian products. The opposite is true: U.S. agencies have imposed fewer duties on NAFTA members, and U.S. industries have filed relatively fewer petitions regarding NAFTA members' goods.66 In sum, Chapter 19's high rate of agency reversal in comparison with U.S. judicial review cannot be explained by any kind of case selectivity effect.

E. Pre-Chapter 19 Litigation Results in Cases Involving Canadian Goods

A comparison between litigation patterns in challenges to U.S. agency determinations on Canadian goods before and after the creation of Chapter 19 is necessary to ensure that attribution of the higher reversal rate in Chapter 19 review to the change in adjudicatory system is appropriate. In other words, should Chapter 19 reversal rates match those of U.S. judicial review in the years immediately preceding its creation, one would be forced to conclude that Chapter 19 is not deciding Canadian cases differently than would the U.S. courts it replaced. Thus, arguments about changes in the degree of deference could not be maintained, as no change would have occurred. Accordingly, one must examine the rate of U.S. agency wins and losses during the post-Chevron period that preceded the creation of Chapter 19 (1984-1988).

While a perfect comparison between the datasets in the two periods is not possible due to lack of information on the status of rates (pre- and post-review), one can still roughly determine the extent to which U.S. agency decisions were maintained (or changed) by 62 New Steel Rail, Except Light Rail, from Canada, Panel No. USA-89-1904-08 (FTA Panel Aug. 13, 1990). 63 E.g., Live Swine from Canada, 70 Fed. Reg. 20,400 (Int'l Trade Comm'n Apr. 19, 2005) (final injury determ.); Live Swine from Canada, 70 Fed. Reg. 12,186 (Dep't of Commerce Mar. 11, 2005) (final countervailing duty determ.); Durum and Hard Red Wheat from Canada, 68 Fed. Reg. 60,707 (Int'l Trade Comm'n Oct. 23, 2003) (final injury determ.) 64 See GAO Report, supra note 7, at 41. 65 See Id.

66 See Macrory, supra note 40; Jones, supra note 40.

analyzing published court opinions involving Canadian goods in the relevant period. A search of published CIT decisions produced 26 slip opinions involving "non-procedural" challenges to U.S. agency final determinations on Canadian products in the 1984-1988 period. These 26 decisions occurred on 17 separate cases brought by U.S. domestic industry, U.S. importing industry or Canadian producers. Of these 17 cases, the U.S. government won 10 (58.82 percent), with other parties winning 7 (41.18 percent). While this analysis does not reveal what happened to the rate after court review, it uses U.S. government wins as a proxy for agency affirmance and, therefore, deference. We suspect that if we had the data on rates before and after review, some of these cases would result in rates being left ultimately unchanged, since, as we learned from the other sample (1989-2005) that not all court reversals lead to rate decreases on remand. Regardless, this means that at least 58 percent of cases resulted in no change in rates. In comparison with the 34.15 percent U.S. agency win rate at NAFTA, this is quite a change. Furthermore, one can now surmise that non-agency parties went from a less than 42 percent win rate before NAFTA to a 66 percent win rate, which is a significant increase. Thus, one can conclude that the change in review systems brought a greater agency reversal rate. Of course, this analysis combines under the label "other parties" Canadian and U.S. plaintiffs (U.S. domestic industry and U.S. importers). Yet, except for a desire to reverse prior agency action, these parties have opposing interests. Therefore, we analyzed these 17 cases according to whether the party who won had a preference to maintain or increase duty rates (U.S. government and U.S. domestic industry), or was attempting to reduce or eliminate these rates altogether (Canadian producer and U.S. importer). Bearing in mind that U.S. agencies won 10 of these cases, if one takes note of the fact that, among the 7 wins for other parties, 3 wins are for U.S. domestic industry, one can conclude that pro-rate parties won (at least) 76.47 percent of these pre-NAFTA cases, much higher than the 23.53 percent win rate for anti-rate parties. These changes in rates of agency reversal and duty rate reductions show a systemic pattern: far from mirroring preexisting litigation patterns in U.S. judicial review, the switch from CIT adjudication to Chapter 19 review has profoundly altered the general profile of outcomes in favor of Canadian producers and against U.S. agencies and U.S. domestic industry. More importantly, they corroborate the notion that Chapter 19 panels have not behaved like the U.S. courts they replaced.

F. Examining Alternative Causation Theories

Conceivably, one could argue that the reported differences between the two

systems merely reflect a pro-U.S. bias in U.S. courts. Therefore, NAFTA results are different because its panels are simply providing a more "correct" interpretation of the law (though this would still mean that NAFTA panels were not fulfilling their mandate to apply U.S. law in the same fashion as the U.S. courts). However, there is reason to think

otherwise.67 If this were true, this conclusion would still have momentous implications. CIT judges are highly qualified U.S. lawyers, who are appointed for life under strict Article III requirements specifically to shield them from political influence. They typically have many years' experience on the bench, where they specialize in trade law. Their decisions are subject to appeal to the Court of Appeals for the Federal Circuit, where judges have similar qualifications and experience. Thus, if U.S. judicial review produces outcomes that are dramatically more biased against foreign nationals than do ad hoc panels of part-time adjudicators of mixed legal backgrounds, often with no prior judicial experience, whose decisions are not subject to regular appellate review, then the entire U.S. system of lifetime judicial appointment needs rethinking.

Additionally, a bias argument simplistically assumes that all U.S. parties—

including the agency, the petitioning domestic industry, and the U.S. importers—have homogenous interests. The opposite is true. For example, the domestic industry would want to impose or increase duties while U.S. importers would want to eliminate or decrease them. In turn, the agency has a greater interest in seeing its earlier decisions upheld on appeal regardless of whether they authorized or denied the imposition of AD/CVD duties. Even if domestic producers could control the appointment process to "pack" the CIT with pro-duty judges (assuming U.S. importers do not form as strong a lobby), it would be much more difficult to sustain that level of control over CAFC appointments. This is the case because review of trade law decisions is a smaller part of the CAFC docket than review of other cases, such as patent cases and claims against the U.S. government. Thus, judicial appointments would be made based upon considerations other than just the candidate's views regarding trade law. More importantly, a bias argument simply cannot undermine the CIT/CAFC 's alignment with other federal administrative review. If one takes the data and statistical analysis coming from the CIT/CAFC portion of this study and compares it with the results of general appellate review of agency action in the U.S., no discrepancy appears. As Graves and Teske showed, when considering a period that predated Chevron by several years, federal appellate and Supreme Court review of administrative decisions yielded affirmance rates of up to 63 percent, which is not much different from the 68 percent affirmance rate detected in Table 1.68 Plausibly, Chevron's call for greater deference has resulted in higher affirmance rates in all judicial review of administrative action, pushing non-trade litigation results even closer to the 68 percent affirmance rate detected in our sample. If affirmance rates of this magnitude are the norm for agency review proceedings throughout the federal judiciary, one can only conclude that the NAFTA binational review system is not acting like reviewing courts in the United States.

Equally, it is possible that some unknown factual distinction accounts for the difference in outcomes. That is, there could be some unique factor that distinguishes appeals

67 See Juscelino F. Colares & John W. Bohn, NAFTA's Double Standards of Review, 22 WAKE FOREST L. REV. (forthcoming Spring 2007) (explaining why NAFTA panels would be less likely to adhere to U.S. standard of review than U.S. courts). 68 See Scott Graves & Paul Teske, State Supreme Courts and Judicial Review of Regulation, 66 ALB. L. REV. 857, 859-60 (2003).

involving Canada from appeals involving other countries. Many studies have used statistical analysis to try to identify factors that influence the outcomes of agency determinations of dumping, subsidization, or injury.69 For example, many have considered whether factors that are proxies for political influence correlate with outcomes at the ITC or Commerce, generally with inconclusive or negative results.70 Analysis of these discussions is interesting but falls outside the scope of this paper.71

Unfortunately, no study has similarly tried to analyze factors explaining the outcomes of judicial review of agency decisions in trade cases, which is not the same thing. For example, Blonigen and Brown find that China tends to receive higher antidumping margins from Commerce, and Korea, Taiwan, and Russia to have significantly lower ones.72 But that does not necessarily mean that judicial review is more—or less—likely to overturn Commerce decisions involving China than Korea. These figures, in themselves, do not suggest that Commerce is "biased" against China or in favor of Korea, or that judicial review would reverse those biases, or whether some other factor entirely explains the observed differences in margins (e.g., that the absence of reliable input price data in China's imperfectly market-based economy means that firms tend more frequently to sell below cost and hence dump more frequently). Accordingly, while more research regarding factors influencing court review of trade cases may be useful, there is no currently known factor that would cause the outcome of trade appeals involving Canada to differ from appeals involving other countries, other than different application of standards of review. Conclusion

69 E.g., Michael O. Moore, An Econometric Analysis of U.S. Antidumping Sunset Review Decisions, 142 REV. WORLD ECON. 122 (2006); Bruce A. Blonigen, Evolving Discretionary Practices of U.S. Antidumping Activity, NBER WORKING PAPER 9625 (Apr. 2003); Bruce A. Blonigen & Chad P. Brown, Antidumping and Retaliation Threats, 60 J. INT’L ECON. 249 (2003); Kyung-Ho Lee & Jai S. Mah, Institutional Changes and Antidumping Decisions in the United States, 25 J. POL. MODELING 555 (2003); James M. De Vault, Congressional Dominance and the International Trade Commission, 110 PUBLIC CHOICE 1 (2002); Wendy L. Hansen & Thomas J. Prusa, The Economics and Politics of Trade Policy: An Empirical Analysis of ITC Decision Making, 5 REV. INT’L ECON. 230 (1997); Keith B. Anderson, Agency Discretion or Statutory Direction: Decision Making at the U.S. International Trade Commission, 36 J. L. & ECON. 915 (1993); Stefanie A. Lenway et al., To Lobby or to Petition: The Political Environment of U.S. Trade Policy, 16 J. MGMT. 119 (1990); Judith Goldstein & Stefanie Ann Lenway, Interests of Institutions: An Inquiry into Congressional-ITC Relations, 33 INT’L STUDIES Q. 303 (1989); J.M. Finger et al., The Political Economy of Administered Protection, 72 AM. ECON. REV. 452 (1982). 70 See Finger, supra note 69 (finding no significant evidence of political influence on Commerce antidumping and countervailing duty decisions); Lenway, supra note 69 (finding no significant evidence of political influence on ITC decisions); Hansen & Prusa, supra note 69 (finding that ITC decisions positively correlated with PAC contributions and House Ways & Means Committee representation but non- or negatively correlated with Senate Finance Committee representation); De Vault, supra note 69, at 1 & 18 (Congress has “influenced” ITC decisions but not “micromanaged” them). 71 Faced with a potentially infinite number of possible correlations that might be analyzed between potential explanatory variables and observed outcomes of trade cases, it is not necessarily surprising to find some statistically significant positive correlations. Interpretation of the significance of these correlations requires caution. 72 See Blonigen, supra note 69.

A striking feature of the data analyzed above is the sustained asymmetrical pattern of review results between NAFTA and CIT/CAFC adjudication. Looking in different ways at the agency-determined rates prevailing before and after adjudication, U.S. agencies consistently "lose" on NAFTA appeals at a greater rate than when those challenges are raised before U.S. courts. Similar results would normally be interpreted as uncontroversial if they emanated from parallel review systems where the substantive law or guiding principles of administrative review (or both) were different. That is not the case with review before NAFTA and the CIT/CAFC systems. NAFTA's lack of conformity with the pattern of adjudication in all U.S. federal administrative review, including international trade, may mean more than just a mere difference in approaching U.S. substantive law. It may suggest that the NAFTA system is deficient not because it is necessarily determined to misapply U.S. trade remedy law—though such may be the effect of its decisions—but because it just "doesn't get" U.S. administrative law. The Honorable Malcolm Wilkey, a retired Judge from the District of Columbia Circuit, former U.S. ambassador and former member of a NAFTA ECC, diagnosed this problem long ago:

Why do these distinguished Panel experts make this type of error? The answer is, I suggest, that they are experts in trade law; they are not experts in the field of judicial review of agency action; they do not necessarily have any familiarity whatsoever with the standards of judicial review under United States law.73

Both empirical analysis of the above hypotheses and the systemic-wide findings of previous studies seem to support Judge Wilkey's criticism. For example, while declining to establish a causal pattern based on behavioral differences between Chapter 19 panelists and U.S. judges as the reason why their decisions differed, a prior GAO study found "significant differences between the behavioral characteristics of the binational panel process and the U.S. judicial system that it replaces." 74 Further, Judge Wilkey's observation can perhaps help explain the marked increase in U.S. agency reversals in cases involving Canadian goods between the years immediately preceding and during Chapter 19 dispute settlement, during which U.S. law remained largely the same. This remains more than a theoretical discussion, however. The fact is that U.S. trade remedy law is being applied differently as a result of this two-track system. That goes explicitly against the express will of Congressional Committees75 and should be the object of future reform.76 Subsequent research on Chapter 19 review of Canadian agency cases would

73 Certain Softwood Lumber Products from Canada, ECC No. 94-1904-01USA (Ex. Chal. Com. Aug. 3, 1994). 74 GAO Report, supra note 7, at 4. 75 See, e.g., S. Comm. on Finance, Report of the Committee on Finance, in North American Free Trade Agreement Implementation Act: Joint Report, S. Rep. 103-189, at 41-42 (1993) [hereinafter S. Joint Rep.]. (explaining that the requirement that "binational panels . . . apply the same standard of review and general legal principles that domestic courts" employ "is the foundation of the binational panel system."); accord S. Comm. on the Judiciary, Report of the Committee on the Judiciary, in S. Joint Rep. at 126 (expressing the desire that the inclusion of judges in the panel system "would diminish the possibility that panels and courts will develop distinct bodies of U.S. law."). 76 See generally Riccardi, supra note 40, at 727-46.

further our understanding of whether the same asymmetric pattern of adjudication extends beyond the application of U.S. trade remedy law. APPENDIX 1. NAFTA Review has changed rates in the following cases: Hard Red Spring Wheat from Canada, Panel No. USA-CDA-2003-1904-06 (NAFTA Panel June 7, 2005) (final injury determ.); Certain Duram Wheat and Hard Red Spring Wheat from Canada, Panel No. USA-CDA-2003-1904-05 (NAFTA Panel Mar. 10, 2005) (final CVD determ.); Certain Softwood Lumber Products from Canada, Panel No. USA-CDA-2002-1904-07 (NAFTA Panel Sept. 5, 2003) (threat of injury determ.); Pure Magnesium from Canada, Panel No. USA-CDA-2000-1904-06 (NAFTA Panel Mar. 27, 2002) (AD sunset review); Gray Portland Cement and Cement Clinker from Mexico, Panel No. USA-MEX-99-1904-03 (NAFTA Panel May 30, 2002) (7th AD admin. rev.); Pure Magnesium and Alloy Magnesium from Canada, Panel No. USA-CDA-2000-1904-07 (NAFTA Panel Mar. 27, 2002) (CVD sunset review); Corrosion-Resistant Carbon Steel Flat Products from Mexico, Panel No. USA-CDA-98-1904-01 (NAFTA Panel Mar. 20, 2001) (3d AD admin. rev.); Brass Sheet and Strip from Canada, Panel No. USA-CDA-98-1904-03 (NAFTA Panel July 16, 1999) (AD admin. rev.); Gray Portland Cement and Clinker from Mexico, Panel No. USA-97-1904-01 (NAFTA Panel June 18, 1999) (5th AD admin. rev.); Porcelain-on-Steel Cookware from Mexico, Panel No. USA-97-1904-07 (NAFTA Panel Apr. 30, 1999) (9th AD admin. rev.); Fresh Cut Flowers from Mexico, Panel No. USA-95-1904-05 (NAFTA Panel Dec. 12, 1996) (final AD determ.); Oil Country Tubular Goods from Mexico, Panel No. USA-95-1904-04 (NAFTA Panel July 31, 1996) (final AD determ.); Porcelain-on-Steel Cookware from Mexico, Panel No. USA-95-1904-01 (NAFTA Panel Apr. 30, 1996) (5th AD admin. rev.); Leather Wearing Apparel from Mexico, Panel No. USA-94-1904-02 (NAFTA Panel Oct. 20, 1995) (final CVD determ.); Live Swine from Canada, Panel No. USA-94-1904-01 (NAFTA Panel May 30, 1995) (6th AD admin rev.); Certain Corrosion-Resistant Carbon Steel Flat Products from Canada, Panel No. USA-93-1904-03 (FTA Panel Oct. 31, 1994) (final AD determ.); Certain Cut-to-Length Carbon Steel Plate from Canada, Panel No. USA-93-1904-04 (FTA Panel Oct. 31, 1994) (final AD determ.); Pure and Alloy Magnesium from Canada, Panel No. USA-92-1904-04 (FTA Panel Oct. 6, 1993) (final AD determ.); Certain Softwood Lumber Products from Canada, Panel No. USA-92-1904-02 (FTA Panel July 26, 1993) (final injury determ.); Certain Softwood Lumber Products from Canada Panel, No. USA-92-1904-01 (FTA Panel May 6, 1993) (final CVD determ.); Live Swine from Canada, Panel No. USA-91-1904-04 (FTA Panel Aug. 26, 1992) (5th CVD admin. rev.); Live Swine from Canada, Panel No. USA-91-1904-03 (FTA Panel May 19, 1992) (4th CVD admin. rev.); Replacement Parts for Self-Propelled Bituminous Paving Equipment from Canada, Panel No. USA-90-1904-01 (FTA Panel May 24, 1991) (final AD determ.); Fresh, Chilled, and Frozen Pork from Canada, Panel No. USA-89-1904-06 (FTA Panel Sept. 28, 1990) (final CVD determ.); Fresh, Chilled, and Frozen Pork from Canada, Panel No. USA-89-1904-11 (FTA Panel Aug. 24, 1990) (final injury determ.); New Steel Rail, Except Light Rail, from Canada, Panel No. USA-89-1904-07 (FTA Panel June 30, 1990) (final CVD determ.); Red Raspberries from Canada, Panel No. USA-89-1904-01 (FTA Panel Dec. 15, 1989) (final AD determ.). 2. NAFTA Review has decreased rates in the following cases:

Duram and Hard Red Spring Wheat (June 7, 2005); Duram Wheat (Mar. 10, 2005); Softwood Lumber (Sept. 5, 2003); Pure Magnesium (Mar. 27, 2002); Pure Magnesium and Alloy Magnesium (Mar. 27, 2002); Gray Portland Cement and Cement Clinker (May 30, 2002); Corrosion-Resistant Carbon Steel Flat Products (Mar. 20, 2001); Brass Sheet

and Strip (July 16, 1999); Gray Portland Cement and Clinker (June 18, 1999); Fresh Cut Flowers (Dec. 16, 1996); Oil Country Tubular Goods (July 31, 1996); Porcelain-on-Steel Cookware (Apr. 30, 1996); Leather Wearing Apparel (Oct. 20, 1995); Certain Cut-to-Length Carbon Steel Plate (Oct. 31, 1994); Pure and Alloy Magnesium (Oct. 6, 1993); Lumber (July 26, 1993); Softwood Lumber (May 6, 1993); Live Swine (Aug. 26, 1992); Live Swine (May 19, 1992); Fresh, Chilled, and Frozen Pork (Sept. 28, 1990); New Steel Rail, Except Light Rail (June 8, 1990); Fresh, Chilled, and Frozen Pork (Aug. 24, 1990); Red Raspberries (Dec. 15, 1989). 3. Domestic industry filed the following cases in the CIT/CAFC system:

Maui Pineapple Co. v. United States Dep't Commerce, 264 F. Supp. 2d 1244 (Ct. Int'l Trade 2003); Al Tech Specialty Steel Corp. v. United States Dep't Commerce, 25 C.I.T. 343 (2001); Allegheny Ludlum Corp. v. United States Dep't Commerce, 215 F. Supp. 2d 1322 (Ct. Int'l Trade 2000); Inland Steel Industries, Inc. v. United States Dep't Commerce, 967 F. Supp. 1338 (Ct. Int'l Trade 1997); Torrington Co. v. United States Dep't Commerce, 973 F. Supp. 164 (Ct. Int'l Trade 1997); NACCO Materials Handling Group, Inc. v. United States Dep't Commerce, 896 F. Supp. 1248 (Ct. Int'l Trade 1995); NTN Bearing Corp. of Am. v. United States Dep't of Commerce, 858 F. Supp. 215 (Ct. of Int'l Trade 1994); Smith Corona Corp. v. United States Dep't of Commerce, 796 F. Supp. 1532 (Ct. Int'l Trade 1992); Timken Co. v. United States Dep't Commerce, 714 F. Supp. 535 (Ct. Int'l Trade 1989).

PROPOSAL 29

Benjamin G. Davis1

University of Toledo College of Law

Dedoublement Analytique: Avoiding Making a Virtue of Ignorance What I would like to add to the literature on international law and the United States is to engage with two visions simultaneously: Vision (1) is centered on the internal U.S. foreign relations law vision (i.e. from the Constitution down in U.S. foreign relations law) and Vision (2) is centered on the external international law vision (i.e. from the United States obligations outward vision). Under Vision (1) when the President is acting pursuant to his Constitutional commander-in-chief powers (and particularly with Congressional support) he is at the zenith of his power and, as a matter of internal law, can act in a manner inconsistent with customary international law and treaty obligations.2 The allocation of roles between the Executive, the Legislative, and the Judiciary of the United States Federal Government is the manner in which international law (or departures from it) operates in the United States.3 The internal doctrines that impact on how international law operates within the United States are the essential doctrines - what we do in the United States is what matters.4 The impact of other states is measured by the means with which we can exert our power to have them acquiesce in our actions, even if our actions are illegal as a matter of external visions of international law. Under Vision (2) international law constrains the United States as it does each state. Whatever the United States does as a matter of internal law is immaterial, the essence is whether the United States is in compliance with its international obligations. The United States may have internal interpretations of international law that are exotic, but the question that remains at the center is – whatever the internal rules – is the United States in compliance or breach with its international obligations. A second aspect of this external vision is that if the United States is in breach of its international law obligations, what will the other states do about bringing the United States into compliance. At this point, the economic, intelligence, military, political and diplomatic intersect with the legal as the other states

1 Associate Professor of Law, University of Toledo College of Law 2 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Justice Jackson’s concurring opinion), Dames & Moore v. Regan, 453 U.S. 654 (1981), E.g. The Chinese Exclusion Case, 130 U.S. 599-602, Edye v. Robertson (The Head Money Cases), 112 U.S. 580, 597-599 (1884), Chew Heong v. United States, 112 U.S. 536 (1884), as discussed in United States of America v. Palestine Liberation Organization, 695 F. Supp 1456 (S.D. N.Y. 1988), The Paquete Habana, 175 U.S. 677 (1900); See generally Jeffrey L. Dunoff, Steven R. Ratner and David Wippman, International Law Norms, Actors, Process, Second edition (Aspen 2006) (hereinafter Dunoff, Ratner and Wippman Casebook) 3 See generally Chapter 5 International Law and Domestic Law of Dunoff, Ratner and Wippman Casebook and Chapter 3 International Law and Municipal Law of Lori Fischer Damrosch, Louis Henkin, Richard Crawford Pugh, Oscar Schachter, and Hans Smit, International Law Cases and Materials, Fourth Edition (West 2001) (hereinafter Henkin Casebook). 4 Id.

in the world determine the approach they each wish to take to the Americans – acquiescence or horizontal enforcement5. Building on the dedoublement fonctionnel (role-splitting) idea as to the roles of states in the “creation of” and as subjects of international law in the international community6, I am suggesting that the citizen observer is able to have “second vision”7 consisting of both evaluating the United States in an internal international law perspective and evaluating the United States in an external international law perspective of other states and international organizations as to United States compliance with international law obligations. I would like to call this type of second vision the dedoublement analytique - the essence of the evaluative process of this essay. Figure 1 Second vision or Dedoublement analytique

5 See generally Lori Damrosch, Enforcing International Law Through Non-forcible Measures, 269 Rec. des Cours 19-22, 24 (1997) reprinted in Henkin Casebook pages 23-24. 6 Louis Henkin, International Law: Politics and Values, 74-75 (1995), reprinted in Henkin Casebook pages 180-181. See generally the essays at The European Tradition of International Law: Georges Scelle, ! European Journal of International Law 193-250 (1990) and in particular, Hubert Thierry, The Thought of Georges Scelle, Id at 193 and Antonio Cassese, Remarks on Scelle’s Theory of “Role Splitting” (“dedoublement fonctionnel” in International Law) and footnotes to G. Scelle’s work, Id at 210 (1990) available online at http://www.ejil.org/journal/Vol1/No1/index.html (Last visited on March 10, 2007). I recognize my debt to G. Scelle and the European Tradition which clearly influences this work. In so doing, I do not consider myself bound to the assumptions said to underlie G. Scelle’s work. Id. at 210. 7 I prefer “second vision” to a variation on the idea of role splitting because the idea of a split analysis separates the internal and external perspective. In this more holistic method, it is essential for the citizen to both see the internal and external perspectives – see the harmonies and discontinuities between the two perspectives– in order to better understand what is at stake in the manner his state is operating on the international plane. Holding the two visions, in this approach, is the method to see and understand – not one or the other vision.

Figure 1 helps understand the idea. For the United States the Constitutional allocation of roles (Executive, Legislative and Judiciary at the Federal level) as regards international law and international law’s role in United States federalism (Executive, Legislative, and Judiciary role at the state level) makes for a complex series of internal law doctrines and debates. The traditional view (now called the modern position) of customary international law as federal law is free to be contested by the more recently argued view (now asserted as a traditional view) that it is state law – with the impact of all this on the supremacy of international law as a constitutional matter.8 Self-executing vs. non-self-executing treaty doctrines, state secret doctrines, federal officer immunity doctrines, and political question doctrines play their role in shaping this internal space in how the United States meets or attempts to change its international obligations. Looking out to the rest of the world (Brazil, Canada and the United Kingdom being picked at 8 Jack Landman Goldsmith & Curtis Bradley. "Customary International Law as Federal Common Law: A Critique of the Modern Position," 110 Harv. L. Rev. 815 (1997). Harold Hongju Koh, “Is International Law Really State Law?”, 111 Harv. L. Rev. 1824 (1998)

random) the internal mechanisms of these other countries are of only marginal interest. These are blank slates on which the United States can seek to assert influence to shape or at least get these states to acquiesce in the United States view.

At the same time, the rules of international law are knowable as obligations

between states that are not determined by the internal laws of each state. The internal law view of the given international law rule can be measured on the international plane to determine whether a state is acting in compliance with the international rule. Being able to make both those analyses as one looks at the United States is useful to help understand our approach and express the ebb and flow in my country as regards its international obligations. This dynamism is reflected in the governmental action but also in the reaction of civil society to the positions taken by our government (Executive, Legislative and Judiciary).

Those who focus only on the foreign relations law aspects (internal law described from the Constitution down) seem to be deaf to the dissonance that may be a result of the U.S. approach. One can enthusiastically enter into debates about how customary international law is viewed as a matter of U.S. internal law (the meaning of The Paquete Habana 9as one topic, the Charming Betsy10 canon as another, and whether international law is state or federal law as a third11) and whether treaties are self-executing or not12. This approach while fascinating as a process of “blocking and tackling” through Federalism and Constitutional law paradigms that are rich and diverse appears to miss the forest for the trees. The reason is that, particularly in this “War on Terror”, the discussion seems to force one to center one’s attention on the wrong thing - the relative roles of the coequal branches of the Federal Government – the American structure of organizing our state. Whether or not the internal view properly calibrates the internal impact of international law, the external view has the blessing of focusing one’s attention on the essence – is the U.S. acting in a manner that is in compliance with its international law obligations? If not, what can we do about it? Thus, I have a significant quibble with the method of those who focus on U.S. foreign relations law and Constitutional law concerns as an expression of the U.S. approach to any issue in international law for those writers seem to discount the brakes of horizontal enforcement too quickly in their assertion of U.S. uber-power to change the world.

At the same time, focusing on the international law perspective do is also problematic. In this setting, one might miss important trees for the forest. The perspective of the foreign court or the international tribunal well versed in the rule that international obligations fall on the state whatever its organization, misses a significant specificity about the transnational impact of U.S. internal approaches. Without falling into the trap of American exceptionalism, as such a powerful force on many levels in the world, the United States is extremely influential - particularly in the “War on Terrorism.” 9 The Paquete Habana, 175 U.S. 677 (1900) 10 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 65, 118 (1804) 11 Goldsmith and Bradley and Koh, footnote 14, supra 12 Missouri v. Holland, 252 U.S. 416 (1920); See Carlos Vazquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Intl. L. 695 (1995) discussed in Dunoff, Ratner Wippman Casebook p. 315.

This influence – which is not a diktat - puts great pressure on other states as to how to respond as given rules of international law are interpreted and seen to evolve by the United States.13 Treaty interpretation and evolution of customary international law rules through changes of practice by such a significant power are subjects of great attention. Those determinations may refract in the practices of states that accommodate the U.S. approach. New formulations or understandings (and possibly propulsing new conventions like a new Geneva Convention)14 may be pushed by the United States. In

13 A classic example are the U.S. efforts to reinterpret the Treaty on the Limitation of Anti-Ballistic Missile Systems 23 U.S. T. 3435 (1972) in the Reagan Administration in 1983-1985, and subsequently with the Bush Administration withdrawal in December 2001 and agreement to the Treaty on Strategic Offensive Reductions of 2002. See Dunoff, Ratner, Wippman Casebook at p. 35 et seq. 14 “Senator Schumer. Let me ask you another question, and that is this: We have had a lot of talk about the Geneva Convention and what has happened in the past. I want to ask you a prospective question about the Geneva Convention. Do you think that we should seek revisions of the Geneva Convention in the future? I do not know if that is right or wrong, but do you think we should? Have there been any discussions in your office as Counsel or in the White House or in the administration as to whether we should seek those revisions? And if there is a determination that we should seek certain revisions--and I do not know what they would be; they might be reasonable--should Congress be include in that discussion? Judge Gonzales. Thank you, Senator, for that question. I think it's a very good question because we are fighting a new type of enemy and a new type of war. Senator Schumer. Sure. Judge Gonzales. Geneva was ratified in 1949, Geneva Conventions, and I think it is appropriate to revisit whether or not Geneva should be revisited. Now, I'm not suggesting that the principles of Geneva regarding basic treatment, basic decent treatment of human beings, should be revisited. That should always be our polestar. That should always be the basis on which we look at this. But I am aware--there has been some very preliminary discussion as to whether is this something that we ought to look at. I'm also aware that certain academicians and international law scholars have written on this subject as to whether or not should we revisit Geneva and asked whether or not the Senate should play a role or the Congress should play a role. Obviously, if you're talking about modifications of Geneva or a new treaty, the Senate would play a very important role in the ratification process. Senator Schumer. I understand that, but what I am saying is if the new administration were to begin internal discussions on whether Geneva should be modified and in what way, would they include the Senate in those discussions rather than saying here is what we recommend? You know, I mean, obviously this needs to be negotiated in a multilateral way. But would you include us in those--or would you recommend to the President that we be included in those discussions? Judge Gonzales. Before answering a question, I want to emphasize, when I indicate that there's been some discussion

this praxis, resistance to those new approaches may harden as a form of horizontal enforcement of existing international norms.

One irony is that the American citizen observer who is not at the heights of society might be in a peculiarly fortunate position to be able to hold in thought both the internal and external visions of the United States – to successfully do the dedoublement analytique so to speak. Without the pressure of the great responsibilities of those at the heights of the society one is not as informed but one may also be less distracted by one’s actions being interpreted also by other countries – less worry about the dedoublement fonctionnel. While not necessarily unified in approach or solution, those in the heights have to weigh their choices in light of their responsibilities to protect the national security – a burden that falls heavily upon them. The citizen may be a patriot but is not subject to the daily pressure of being the decider(s). While not a role at the center of power, the citizen observer’s role no matter how minor is not one, however, to be considered as frivolous. On the contrary, from an external perspective I am drawn back to Hersch Lauterpacht’s “The Reality of the Law of Nations” a lecture given at the Royal Institute of International Affairs, Chatham House, within the White House or the administration, it's not been a systematic project or effort to look at this question, but some--I know certainly with the people that I deal with, the lawyers have questioned maybe this is something that ought to be looked at. So I do not want to leave the impression-- Senator Schumer. I do not hold any brief against that. Obviously, you can re-examine these things. Judge Gonzales. And it seems to me that it's probably always better to consult with the Senate since the Senate is going to have a role in the ratification process. I think consultation is usually better than not consulting. Senator Schumer. Okay. And there is no proposal you know that is being formulated right now, is there? Judge Gonzales. Not that I'm aware of, Senator. Senator Schumer. Thank you. Thank you, Mr. Chairman.” Confirmation hearing on the nomination of Alberto R. Gonzales to be Attorney General of the United States, Committee on the Judiciayr, United States Senate, 109th Cong. (2005). See generally, Sean D. Murphy, "Evolving Geneva Convention Paradigms in the 'War on Terrorism': Applying the Core Rules to the Release of Persons Deemed 'Unprivileged Combatants'" . George Washington Law Review, Vol. 75, 2007 Available at SSRN: http://ssrn.com/abstract=958380; John Yoo, The Status of Soldiers and Terrorists under the Geneva Conventions, 3 Chinese J.I.L. 135 (2004); Benjamin G. Davis, Keeping Our Honor Clean: A Response to Professor Yoo, 4 Chinese J.I.L. 745-750 (2005); Memorandum from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, to Alberto Gonzales, Counsel to the President (7 February 2002) Status of Taliban Forces Under Article 4 of the Third Geneva Convention reprinted in Mark Danner, Torture and Truth 96 (2004); George H. Aldrich, The Taliban, Al Qaeda and the Determination of Illegal Combatants, 96 Am. J. Int’ L. 891 (2002); Memorandum from William H. Taft IV, Legal Adviser, U.S. Department of State, to Alberto Gonzales, Counsel to the President (2 February 2002), Comments on Your Paper n the Geneva Convention, reprinted in Mark Danner, Torture and Truth 94 (2004); Memorandum from William H. Taft IV, Legal Adviser, U.S. Department of State, to John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice (11 January 2002) Your Draft Memorandum of January 9, 2002 available online at http://pegc.no-ip.info/archive/State_Department/taft_memo_20020111.pdf)

London, on May 27, 1941 in some of the darkest days of World War II. Lauterpacht wrote, “Constructive thought in the field of international organization must continue to be based on the view that while the protection of true sovereignty, conceived as independence of the power of other States, is the main purpose of international law, its reality has been thwarted by certain manifestations of State sovereignty and that a surrender or limitation of some aspects of that sovereignty are still the essential condition of the effectiveness of the Law of Nations. The fulfillment of that condition depends not only on the acquiescence but on the determination of the individual citizen.”15 (Emphasis added) From an internal perspective, I am drawn to the words spoken at a meeting of the American Society of International Law (ASIL) on April 13, 1945 by Robert H. Jackson – Chief Prosecutor at the International Military Tribunal at Nuremberg, but also Supreme Court justice and a distinguished jurist. In his address entitled “The Rule of Law Among Nations,” he stated that: “The trouble has been that the advocates of International Law have had too little of what Mr. Justice Holmes called “fire in the belly,” while the extreme nationalists have had too little else.16” Both of these internationalist jurists speak to the citizen observer calling on each of us to make an effort and take a stand. That being said, I must admit a concern with the difficulty of being the good American citizen observer. It is possibly an erroneous impression of what this task of dedoublement analytique entails for the American citizen observer, but it seems that the task contrasts with my understanding of the way international law might be thought about by my foreign colleagues. My experience with internationalist law experts from outside the United States (whether monists or dualists) is that they appear to have a distinctly clearer understanding of the nature of international law on the international plane. They are much more hesitant to describe the international law obligations through the lens of their respective state’s foreign relations law.17 Rather, the lens will be one more of whether the state is complying with its international law obligations as described by consensus visions of what those obligations are. The dominance of the internal perspective appears so significant in the United States that it seems to crowd out this

15 E. Lauterpacht (Eds), International Law being the Collected Papers of Hersch Lauterpacht, Vol. 2, pgs. 35-36 Cambridge University Press (1975) 16 Robert Jackson, The Rule of Law Among Nations, April 13, 1945 available online at http://www.roberthjackson.org/documents/Rule%20of%20Law%20Among%20Nations.pdf (Last visited March 10, 2007) 17 An interesting discussion of Franco-American similarities and differences as regards international law can be found at Emmanuelle Jouannet, French and American Perspectives on International Law: Legal Cultures and International Law in Symposium: French and American Perspectives Towards International Law and International Institutions 58 Maine L. R. 292 (2006). See also, Jose Alvarez, International Law 101: A Post-Mortem IL post February 12, 2007 http://www.asil.org/aboutasil/president.html (Last visited on March 10, 2007).

external perspective. The efforts legislatively or in dicta to remove all foreign or international elements from analysis of fundamental international rules (Geneva Conventions in the Military Commission Act as an example18), appears to be an effort to hermetically seal the U.S. mind for fear of the effects of foreign or international thought contamination – seeming to make a virtue of ignorance. The consequence is that one senses a gulf between the U.S. internal and external perspectives that appears greater than that in other countries. I recognize this may only be a conclusion based on my limited experience, but I am left with this disturbing thought.

18 “No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated”, Military Commissions Act of 2006 Section 5 a. See generally, Michael C. Dorf, The Orwellian Military Commissions Act of 2006, available at journal of International Crimnal Justice Advanced Access (2007) http://jicj.oxfordjournals.org/cgi/content/full/mql097v1# (Last visited March 10, 2007). John Cerrone, ASIL Insight, The Military Commissions Act of 2006: Examining the Relationship between the International Law of Armed Conflict and US Law, Novembe 13, 2006 Vol 10 Number 30 available at http://www.asil.org/insights/2006/11/insights061114.html (Last visited on March 10, 2007)

PROPOSAL 30

Lakshman D. Guruswamy, Ph.D. University of Colorado at Boulder

EFFECTIVENESS OF INTERNATIONAL TREATIES

Introduction

Over the last fifty years international law has become a dynamic instrumentalist social force addressing a wide range of socioeconomic, sociopolitical and biophysical challenges through bilateral, regional, and global treaties. International law now includes a formidable corpus of treaties dealing, for example, with labor, human rights, health, intellectual property, taxation, the environment and energy. Many of these treaties establish articulated and implied goals and objectives, and some of them create new institutions. Moreover, the growing challenges presented by energy and environmental problems necessitates new treaty arrangements that change the way in which nations behave. Good new energy treaties that command future compliance must be based on an understanding of the extent to which nations comply with existing treaties, and why they do so.19 This paper builds upon and further develops a seam of international teaching and writing on compliance, effectiveness and impact of energy and environmental treaties.20

In general, even the limited inquiry about compliance with international law

dealing with biophysical issues like the environment or energy has been theoretical. It has been confined to two questions: one, has international law been implemented by being incorporated into domestic law through legislative, judicial or executive action; and two, to what extent have countries complied with a treaty by adhering to its provisions and the implementing machinery established by it.21 The effectiveness of a treaty goes beyond mere adherence to legal obligations.22 This article defines effectiveness as the

19 Jose E. Alvarez, Why Nations Behave, 19 MICH. J. INT'L L. 303, 305 (1998).20 20 Brown Weiss, E, Jacobson , Harold K, Engaging Countries; Strengthening Compliance with Environmental Accords (1998); Dinah Shelton, Commitment and Compliance (2000); Kal Raustiala, Compliance & Effectiveness in International Regulatory Cooperation, 32 CASE W. RES. J. INT'L L. 387, 393-94 (2000) ; 20 ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY (1995); THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995); George W. Downs et al., supra note 5; Oran R. Young et al., Regime Effectiveness: Taking Stock, in THE EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL REGIMES 249 (Oran R. Young ed., 1999). Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J. 2599, 2603 (1997) 21 Brown Weiss, E, Jacobson , Harold K, Engaging Countries; Strengthening Compliance with Environmental Accords (1998); Dinah Shelton, Commitment and Compliance (2000). 22 M.A. Fitzmaurice & C. Redgwell, Environmental Non-Compliance Procedures and International Law, 31 NETH, Y.B. INT'L L. 35, (2000)..

extent to which the goals of a treaty have been achieved. Shallow commitments23 could lead to effective compliance in cases where states would have done so even if the treaty had never been in force or could do so without much impact on the underlying issue.24 It is important, therefore, to understand a treaty not only in terms of its effectiveness in achieving stated goals, but also in terms of its impact as a satisfactory response to the challenge addressed, and the degree to which it changes state behavior.

International institutions of differing types, created by treaties to serve their goals,

as well as international organizations in general,25 have been the subject of research and teaching. By contrast, methods for ensuring compliance, although listed or catalogued, have not been analyzed and examined from the point of view of their comparative utility, effectiveness or impacts. This has happened despite the fact that compliance may depend on those methods. Such methods for ensuring compliance include processes, implementive devices, and different techniques employing distributive and resource transferring, grievance remediation (enforcement), private arrangements, and regulatory frameworks. Of the few methods that have been examined,26 there has only been modest investigation and analysis of the utility of various compliance methods27 and compliance devices used by these international instruments to achieve their goals. It is perfectly possible for an expensive method to achieve a modest goal when it could have been done by another at less cost. Overall, it is important to assess and evaluate the extent to which these varying methods have succeeded in achieving their treaty goals because future instrumentalist treaties will need to avoid failures and embrace the successes of existing treaties.

When moving from methods into the field of effectiveness and impacts it is

important to identify the goals of a treaty and to compare such goals with the results produced. It is also necessary to inquire about the depth of these goals and the extent to which they did or did not remedy the problem being addressed. Where the results, garnered from empirical data and evidence, do not match goals or point to the inadequacy of those goals, attention turns to the reasons for such shortfalls. It is possible for shallow commitments and modest goals to reflect what countries are already doing rather than what is needed to address the problem at hand. Such an inquiry must traverse institutions, compliance methods, enforcement, and the socioeconomic, political or cultural context that might explain the gaps between the goals of a treaty and the inability to meet them, or the meagerness of the goals and the ease with which they were met.

23 George W. Downs et al., Is the good news about compliance good news about cooperation? 50 INT'L ORG. 379, 383 (1996). 24 Kal Raustiala, Compliance & Effectiveness in International Regulatory Cooperation, 32 CASE W. RES. J. INT'L L. 387, 393-94 (2000); While Raustiala, who conflates the two concepts, this article draws a distinction between effectiveness and impact 25 Alvarez, Jose, International Organizations as Law Makers (2005) 26 According to Victor, Enforcing International Law Implications for an Effective Global Warming Regime 10 Duke Envtl. L. & Pol'y F. 147 (1999), of t 140 multilateral environmental agreements covering a broad spectrum of issues, scholars have examined closely only a fraction of these agreements and issue-areas. 27 Summers, Robert S, Instrumentalism and American Legal Theory, 193-208 (1982) “Method” as used in this paper corresponds to the ”Implementive Machinery” described by Summers rather than to chapter 6 titled “Legal Method.”

While there is a substantial body of literature on “effectiveness,”28 these

otherwise theoretically illuminating contributions do not include any authoritative conclusions based on comprehensive empirical examination of compliance, effectiveness or impacts of energy and environmental agreements.29 This is primarily because of the absence of comprehensive and organized empirical evidence or data. The impressive study by Brown and Jacobson was based on only five treaties.30

It is time to examine the accuracy of the hoary old chestnut that most nations

conform to international law most of the time.31 While this impressionistic claim has been repeated in recent times32 and may be correct, the evidence for so believing today simply does not exist in the energy and environmental areas. The importance of empirical evidence backing any such claims cannot be overemphasized.

Ian Brownlie, who considers evidence of effectiveness to be extra-legal, asserts

that “the utility and effectiveness of a legal order must be determined ultimately by extra-legal criteria.”33 Benedict Kingsbury points out that we do not have systematic studies to verify the accuracy of Henkin’s venerable assertion that most of the time nations conform to international law. Moreover, he states that the dearth of good empirical studies of the correspondence between state behavior and international rules is a serious obstacle to understanding and evaluating the international legal system.34 This lack of serious empirical research pertains to compliance methods as well as to effectiveness and impacts. While the effectiveness of international regimes is an established field of study, the empirical evidence relied upon in the environmental and energy areas is sparse at best and dubious at worst.35

The existence of an empirically-based research and teaching lacunae relating to

methods, effectiveness and impacts has created a serious problem because the rationale behind functional and instrumental legal treaties is to change behavior. The relative absence of writing and teaching on the extent to which they have succeeded in doing so is an omission that should be remedied.

28 ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY (1995); THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995); George W. Downs et al., supra note 5; Oran R. Young et al., Regime Effectiveness: Taking Stock, in THE EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL REGIMES 249 (Oran R. Young ed., 1999). Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J. 2599, 2603 (1997). 29 The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice ix (David G. Victor et al. eds., 1998). 30 See fn 2 above 31 Louis Henkin, How Nations Behave ( 2d ed. 1969) 32 David D. Victor, Enforcing International Law: Implications for an Effective Global Warming Regime, 10 DUKE ENVTL. L. & POL'Y F. 147, 151 (1999). 33 Brownlie, Ian, The Rule of Law in International Affairs, 11 (1999) 34 Benedict Kingsbury, The Concept of Compliance as a Function of Competing Conceptions of International Law50, in International Compliance with Nonbinding Accords (Brown Weiss, ed. 1997) 35 Andresen, H and Hey, Ellen, The Effectiveness and Legitimacy of International Environmental Institutions, 212 at 218, 5, International Environmental Agreements: Politics, Law and Economics (2005)

This paper will describe and discuss a two-part project that is seeking to advance sustainable energy solutions to the energy crisis confronting the world. The goals of the exercise are very functional, rather than theoretical. They are to identify all energy treaties in force and to analyze them with a view to reaching conclusions about the kind of treaties that most effectively and efficiently promote sustainable energy. The project is doing so by examining all international energy agreements now in force, along with other non-legal instruments including partnerships, declarations, commitments, pledges and other decisions in the international domain that deal with energy. The first phase of this project, which is studying compliance, effectiveness and the impacts of these energy treaties, has identified some 1,800 energy treaties dealing with different aspects of energy and incorporating a variety of goals and methods. The second phase of this project will track the implementation, compliance, effectiveness and impact of these treaties—as well as identify and monitor compliance, effectiveness and impacts vis-à-vis such non-legal instruments as partnerships, declarations, commitments, and pledges. When completed, this project will erase the data deficit regarding energy treaties, situate our understanding of these treaties within a broader instrumentalist framework, and hopefully offer salient insights about the compliance methods, effectiveness, and impacts of treaties.

ISEA/IPECC: An Empirical International Energy Law Research Project

Phase I: International Sustainable Energy Assessment (ISEA)

The insecurity created by the current hydrocarbon economy and the need to

develop more secure forms of energy are internationally recognized on a widespread basis. Traditionally, national security has been associated with armed aggression and the ability to thwart military invasions or subversion. More contemporary concepts of security include critical threats to vital national and international support systems such as the economy, energy and the environment. In this context, the increasing reliance on hydrocarbons has created energy, environmental and economic insecurity.

However, the magnitude of the challenges arising in moving to a more sustainable

global energy regime cannot be solved by any one nation and must entail international engagement and cooperation. The International Sustainable Energy Assessment (ISEA) is designed to facilitate such cooperation and engagement by enhancing international understanding of optimal ways to utilize and configure international energy agreements, in order to facilitate the development of renewable energy technologies and technologies and practices relevant to energy efficiency and energy conservation.

ISEA has created a unique database containing full text and analysis of

approximately 1,800 international energy treaties from all 192 countries in the world. The ISEA database covers a wide array of energy subjects ranging from energy markets and electricity infrastructure to renewable energy, energy efficiency, and hydrogen. By providing a detailed empirical survey and analysis of in-force energy treaties, ISEA constitutes the first critical step towards remedying the empirical research and teaching lacunae related to the compliance, effectiveness and impacts of international energy instruments.

The references to “instruments” are to a genus that includes a variety of

multilateral and bilateral agreements, pacts, treaties, protocols and conventions dealing inter alia with science and technology, trade and investment, research and development, technology transfer, and sustainable development.36 As currently envisioned, the principal objective of these instruments will be to facilitate the development of primary sources of energy—i.e., energy in its naturally occurring form—as well as energy conversion, transmission and end-use distribution.37

ISEA builds upon the research frameworks already delineated,38 which seek to

foster the development of low greenhouse gas (GHG) global energy systems by facilitating technology research. The ultimate goal of ISEA/IPECC is to advance the negotiation of a comprehensive framework treaty on energy that can galvanize all nations and peoples, including developing countries like China, India and Brazil, to commit to renewable and sustainable energy targets. Such a treaty would be analogous to the Kyoto Protocol that placed numerical quantitative restrictions on carbon emissions.

While a comprehensive treaty remains the ultimate goal, the immediate focus of

the ISEA phase is the creation of an empirical database. Providing such data does not allow ISEA to presume to legislate the scope, structure, specific subject matter, final terms or norms of proposed new energy instruments. Instead, ISEA is intended as a starting point from which to begin the arduous interdisciplinary and collaborative work necessary to negotiate a spectrum of instrumental treaties ranging from bilateral or regional science and technology agreements, to trade and investment treaties, to more ambitious regional treaties and overarching global conventions or protocols.

During the ISEA phase of this project, EESI researchers were charged with the

task of identifying and analyzing every international energy agreement in the world currently in force—including both bilateral and multilateral treaties. This obviously daunting task required the creation of a uniform analytical structure that would render the process of inputting information into the system straightforward and efficient, ensure that essential information is captured (and conversely, that the lack of such information is also captured), and facilitate and structure the comparative analysis of information within the system. To that end, an analytical structure consisting of 29 fields was devised. All 1,800 agreements currently within the ISEA system were analyzed pursuant to this uniform structure. The analytical structure is bifurcated into two primary divisions: (1) key coordinates—containing such information as parties to the treaty, date entered into force, and subject matter focus; and (2) substantive obligations, such as fundamental

36 As discussed below, the definitional scope of “instruments” is expanded in phase two of this project to include non-legal pledges, commitments, partnerships and decisions. 37 The World Energy Council reports primary energy consumption for different countries based on rules for conversion of energy sources into primary energy. This accounting is a suitable method for comparing consumption of different energy sources in different countries. 38 See Franklin M. Orr, Jr., White Paper: Global Climate and Energy Challenge (available at http://gcep.stanford.edu/pdfs/gcep_white_paper.pdf).

obligations, financial commitments, and accountability mechanisms, including information on and analysis of implementation, compliance, effectiveness and impact (with much of the information in these latter four categories to come from the IPECC phase of the project).

ISEA ANALYTICAL STRUCTURE / TAXONOMY OF OBLIGATIONS Key coordinates fields include: (1) treaty name; (2) external reference ID; (3) date

signed; (4) date entered into force; (5) signatories; (6) parties to the treaty; (7) legal type—a distinction internal to U.S. law; (8) termination / renewal clause; (9) bilateral or multilateral; (10) subject matter; (11) amendments; (12) extensions; (13) related agreements; (14) parent agreement; (15) subsidiary agreements; (16); international bodies involved; (17) official contacts; and (18) the full text of the treaty.

The taxonomy devised for substantive obligations identifies the types of

obligations that call for both implementation and compliance. The fields that constitute this structure are as follows: (1) goals / objectives; (2) fundamental principles; (3) financial obligations; (4) institution-related obligations; (5) project-related obligations; (6) interdependent obligations; (7) dispute resolution mechanisms; (8) implementing agency and methods; (9) accountability / reporting mechanism; (10) implementation and compliance; and (11) effectiveness and impact.

In addition to the two-dimensional view of the field structure denoted above, there

are numerous fields within this structure that contain subcategories of analysis, which are dynamically interrelated —thus lending the system a degree of further analytical depth and internal coherence. For instance, with respect to “subject matter focus” the system currently contains treaties covering approximately 45 energy-related subject areas. Eight of these subject areas are deemed primary or top-level categories (see figure 1 below).

P

Cooperation Agreements Electricity Infrastructure and Technologies Energy MarketsEnergy Storage Fossil Energy

Nuclear Energy

Sustainable Energy Transportation

Fig. 1 – ISEA Top-Level Subject Categories

Phase II: International Projects on Energy Commitments & Compliance

(IPECC) The ISEA is the first phase of a larger research initiative of the Energy

Environment Security Initiative (EESI)—an interdisciplinary research center at the University of Colorado at Boulder (the present author is the Director of this center). The larger research program—the International Project on Energy Commitments and Compliance (IPECC)—involves the construction of a comprehensive knowledge base and analytical compass that will monitor compliance with both legal and non-legal instruments, and other international decisions of multinational corporations. Such independent global monitoring will be conducted through an innovative and unique online compliance monitoring system. The system will be similar to the Wikipedia, the well-known online encyclopedia, in that it will enlist and enable the participation of a distributed group of dedicated individuals. Unlike Wikipedia, however, this will not be an open-access system, but rather will engage the participation of approved entities and individuals throughout the world. The system will offer publicly and freely available data facilitating the development and drafting of new and better international energy instruments and decision-making.

As the sister project of ISEA, IPECC is designed to improve and enhance the

efforts of governments, non-governmental actors (such as corporations, non-governmental organizations (NGOs), trade unions, and churches),and key decision-makers throughout the world in two ways: first, by evaluating the extent to which their existing commitments and pledges are actually working; and second, by facilitating new and better clean and affordable energy solutions.

At present there are hundreds of international treaties that seek to advance

sustainable energy technologies and policies. In addition to international treaties, recent years have given rise to dozens of partnership agreements involving countries and private sector entities, scores of pledges found in political resolutions, and numerous other non-binding instruments. These instruments express commitments, of varying degrees and in different ways, supporting the development of sustainable energy technologies. Furthermore, there are numerous other commitments made by private corporations that also seek to advance sustainable energy policies and technologies. While the extent and form of such commitments and pledges has received some attention, an increasingly important, though unanswered question, relates to how effectively they have been implemented, and the degree to which they actually achieve progress by impacting behavior and moving toward sustainable energy goals.

ISEA and IPECC seek to provide the information needed to improve the

effectiveness of existing commitments and encourage new commitments where necessary. Collectively, these projects are designed to track and monitor the implementation of sustainable energy commitments undertaken by governments,

corporations and other entities, and to provide detailed information on the extent to which these commitments are being complied with. In doing this, ISEA and IPECC will serve as watchdogs over what is and should be happening with respect to these instruments and the commitments they embody.

Through the use of the innovative collaborative online monitoring system,

ISEA/IPECC will create a global network of expert participants dedicated to monitoring and improving actions taken pursuant to international energy commitments. Project information, analysis and recommendations will also be made freely available through a public website and disseminated through annual reports.

OUTLINE CONTINUED

Expand on taxonomy Explain why it is different to earlier data collection exercises Delineate differences between effectiveness and impacts Examine the challenges in devising metrics to measure effectiveness, impacts Discuss how to distinguish legally motivated behavior from other causes of behavior

ABSTRACT

Global reliance on hydrocarbons in the face of both global warming and the peaking of oil must be halted. This is a global as well as a national problem that calls for new international treaties moving the world toward a sustainable energy future. But new accords need to be built on the foundations of existing treaties. New accords should embrace the successes and eschew the failures of existing treaties. Unfortunately, the empirical evidence about existing treaty compliance and particularly effectiveness and impacts is lacking. This article describes how this deficiency is being met in the energy field by the International Sustainable Energy Assessment (ISEA) that has identified 1,800 energy treaties in force and is analyzing them in 35 fields covering their coordinates as well as their obligations, institutions, methods, efficiency and impacts. The data contained in ISEA may provide some broader lessons about treaty effectiveness outside the field of energy.

Proposal 10

Reza Dibadj University of San Francisco

Overplaying International Law

This Article argues that one of the essential “wrongs” in the way we teach and write international law is that we overplay it. In other words, we set dramatic expectations as to the existence of an impressive body of international law, only to be disappointed by its frequent impotence. Instead, I argue, much of what is treated as “international” law is nothing more than national law applied to transnational events. To illustrate my argument, I draw on the law of international business transactions. I argue that despite often dramatic claims about the role of international law in mediating these transactions, the great irony is that national law plays a far more significant role. I draw on examples in a variety of areas, including sale of goods, antitrust, corporate and securities law, and intellectual property. There are two likely reactions to this reality. The first would be simply to focus on workaround doctrines such as extraterritoriality. To a large extent, this is where much international law scholarship is heading. Yet, while providing a seductive path of least resistance such an approach is misguided. Instead, we must renew our justifications for the legitimacy of international qua international law. We must then explore why this body of law has been anemically developed and enforced and how this stunning gap has contributed to a spate of problems, including economic disparity between the developed and developing worlds and disenchantment with globalization. Only by acknowledging and understanding the problem can we begin to fix it.

PROPOSAL 21

Laura A. Dickinson1

University of Connecticut School of Law

Sociolegal Approaches to International Human Rights

In one of the most quoted statements in the international law literature, Louis Henkin suggested thirty-five years ago that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." (Henkin, 1968). The truth of this observation, however, has not been subjected to sufficient empirical scrutiny. On the one hand, obedience to international legal norms has too often been taken simply as an article of faith among those most committed to international law and legal institutions. Thus, liberal internationalists have traditionally assumed that liberal democratic states comply with international law because their norms and values resonate with those contained in international agreements. (E.g., Doyle, 1983; Burley, 1992). Other scholars have suggested that if international rules are deemed procedurally and substantively “fair,” they compel compliance. (E.g., Franck, 1995; Trimble, 1990). And those studying “transnational legal process” have argued that states obey international law because they come to internalize international norms and values over time. (E.g., Koh, 1997; O’Connell, 1999; Goodman & Jinks, 2004). Yet, for years there were only fitful efforts to test these hypotheses with comprehensive data on international law compliance.

On the other hand, international relations skeptics of international law have long used rational choice and game theoretic models to argue that international law does not have any independent valence and that a nation-state obeys international law only when doing so is in that state’s own self-interest. (E.g., Morgenthau, 1948; Goldsmith & Posner, 2004). But these arguments too have tended not to be empirically grounded, relying far more on logical models and hidden (or not so hidden) assumptions concerning state behavior. And while constructivist scholars have challenged realist assumptions and argued that international law itself shapes what comes to be thought of as the state’s interest (e.g., Finnemore, 1996; Ruggie, 1998), this proposition, like the others, has not been sufficiently tested on the ground.

Recently, this lack of emphasis on empirical studies in international law has begun to change. Perhaps spurred on by the general trend towards empiricism in the legal academy, legal scholars are beginning to test the impact and efficacy of international law. However, this work is still in its infancy and tends to be informed primarily by the methodologies of quantitative political science research. Accordingly, the empirical study of international law has not sufficiently embraced the broad range of empirical approaches to legal questions that is emblematic of the law and society movement. Meanwhile, law and society scholars—with some notable exceptions—have

1 Professor, University of Connecticut School of Law; Visiting Professor and Visiting Research Scholar, Princeton University, Program in Law and Public Affairs.

historically focused on domestic legal regimes and have therefore not sufficiently analyzed international law.

In this paper, I argue that international law and international relations scholars should engage more directly with the variety of law and society approaches to studying legal questions, and they should recognize the importance of qualitative empirical approaches and not just quantitative ones. It seems to me that international law generally—and international human rights law in particular—needs law and society insights, because these are insights about how laws on paper translate themselves into the behavior, assumptions, and practices of officials, social movements, and people on the ground. As with all rights, there is a social dimension to their internalization and efficacy. Law and society scholars have been studying and analyzing this process for years, but primarily in the domestic context. And although international law and international relations scholars are increasingly interested in testing whether (and how) states comply with international law, these nascent studies are almost solely quantitative and have not generally been harnessed to broader law and society insights about law’s operation in daily life. Accordingly, international law would greatly benefit from the kind of rich multifaceted studies that characterize sociolegal scholarship. Such studies would help us develop a more complete understanding of the complex and multivariate processes through which states and the various actors within states—governmental and inter-governmental bureaucrats, as well as members of non-governmental organizations, corporations, social movements, and individuals—internalize, ignore, or resist the norms and values encoded in international law.

At the same time that international law scholars need law and society insights, law and society scholars can learn something from going international. Because of their focus on law on the ground, law and society scholars are perhaps unduly dismissive of international law in all forms because they do not perceive a state sanction. Indeed, sociologically oriented legal scholars tend to be realists in international law terms because of their skepticism about paper rules. Where is the sanction, they ask? Where is the power? Where is the bureaucracy of enforcement—the police and other such institutional actors?

This approach, however, ignores the fact that populations may internalize norms, even if those norms are not articulated through instruments of coercive power. As research on legal consciousness in the domestic context has shown (Ewick & Silbey, 1998), law’s power may manifest in categories of thought and everyday attitudes, and these social beliefs may derive, at least in part, from legal norms that are not associated with a coercive sanction. Similarly, international human rights treaties and treaty processes—even without strong sanctioning power—can operate to name categories of offenses, create transnational networks of governmental and nongovernmental actors concerned with these categories, empower local actors to take action on certain issues, and shape and shift local understandings and practices. (E.g., Merry 2003). Thus, international human rights is an important terrain for study and understanding of broad law and society issues.

Finally, this paper rekindles long-running law and society debates about the merits of quantitative v. qualitative analysis, yet plays it out on the terrain of international human rights law. For example, to what extent do arguments in favor of either quantitative or qualitative work change when addressing international, as opposed to domestic, law? What forms of statistical analysis are appropriate in this area, given the practical difficulties in measuring both human rights violations and compliance? Are the concerns about using statistics different in the international realm?

Indeed, international human rights law in some ways resembles the contractual forms familiar from commercial practice. As in commercial law, there is a standardized model or template, which migrates and gets adopted from nation to nation and from legal culture to legal culture. Yet, the very same forms may have very different cultural meanings or interpretations in different contexts, and in each context we encounter a different set of state actors, NGOs, and local social movements—different people with different things to gain and lose from adopting or rejecting the template. Thus, with regard to an international human rights provision, we may see in some cultures a strong effect; the ratification of a treaty leads to a reduction in human rights abuses and the establishment of human rights monitoring organizations. But in other settings there may be absolutely no effect; the categories contained in the human rights treaties may be received officially, but then are promptly buried. Or, the interpretation of a treaty and its tools of legal enforcement may become more robust over time, so much so that they may generate a backlash. Accordingly, a simple statistical model that tallies formal ratification may not capture the wide variety of implementation practices that are occurring.

On the other hand, with respect to more qualitative studies, such as interpretive ethnographies, are there different limitations and possibilities for this work in the international sphere? Is it harder to draw generalizable conclusions from such studies given the breadth and scope of international law and the diversity of actors in the international system? And finally, to the extent that one wants to do empirical work—qualitative or quantitative—what are the relevant sources of law, and who are the relevant actors to be studied?

In an attempt to stimulate dialogue and debate about all of these questions, this paper surveys a small sampling of recent empirical work in international human rights law. I divide this work into three main categories, corresponding to those areas of human rights law that have so far inspired the most attention from empirically-oriented scholars: (1) the extent of nation-state compliance with international human rights norms (e.g., Hathaway, 2002; Goodman & Jinks, 2004); (2) the degree to which individual and institutional actors within nation-states internalize international human rights norms (e.g., Levit, 1999; Human Rights Center, 2000; Burke-White, 2005; Wilson, 2000); and (3) the interactions among international human rights norms and local and transnational social movements (e.g., Rajagopal, 2003; Merry & Stern, 2005; Hajjar, 1997; Helfer, 2002; Lutz & Sikkink, 2001). In each of these areas, we see scholars engaging with both the theoretical and methodological questions raised above, and this work therefore offer both a useful glimpse at the emerging empirical discourse on international human rights, and a fertile source of ideas for future development in this area. In the end, my fundamental

claim is that empiricists of international human rights law need each other, and international law, international relations, and law and society scholars must engage in constant interdisciplinary dialogue if they are collectively to provide a richer, more empirically grounded picture of how the international human rights system functions both in the halls of government and the streets of towns throughout the world.

NOTES

Burke-White, William, Complementarity in Practice: The International Criminal Court

as Part of a System of Multi-Level Global Governance in the Democratic Republic of Congo, 18 LEIDEN J. INT’L L. 557 (2005).

Burley, Anne-Marie. Law Among Liberal States: Liberal Internationalism and the Act of

State Doctrine, 92 COLUM. L. REV. 1907 (1992).

Doyle, Michael W. Kant, Liberal Legacies, and Foreign Affairs, 12 PHIL. & PUB. AFF. 205 (1983).

Ewick Patricia & Susan S. Silbey. THE COMMON PLACE OF LAW: STORIES FROM EVERYDAY LIFE (1998).

Finnemore, Martha. NATIONAL INTERESTS IN INTERNATIONAL SOCIETY (1996).

Franck, Thomas M. FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995).

Goldsmith, Jack L. & Eric A. Posner. THE LIMITS OF INTERNATIONAL LAW (2004). Goodman, Ryan & Derek A. Jinks, How to Influence States: Socialization and

International Human Rights Law, 54 DUKE L.J. 621 (2004).

Hajjar, Lisa, Cause Lawyering in Transnational Perspective: National Conflict and Human Rights in Israel/Palestine, 31 LAW & SOC’Y REV. 473 (1997)

Hathaway, Oona, Do Human Rights Treaties Make a Difference, 111 YALE L.J. 1935 (2002).

Helfer, Laurence R., Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes, 102 COLUM. L. REV. 1832 (2002).

Henkin, Louis. HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 42 (1968). The Human Rights Center and the International Human Rights Law Clinic, University of

California, Berkeley, and the Centre for Human Rights, University of Sarajevo, Justice, Accountability, and Social Reconstruction: an Interview Study of Bosnia Judges and Prosecutors, 18 BERKELEY J. INT’L L. 102 (2000).

Koh, Harold Hongju. Why Do Nations Obey International Law?, 106 YALE L.J. 2599

(1997). Levit, Janet Koven The Constitutionalization of Human Rights in Argentina: Problem or

Promise?, 37 COLUM. J. TRANSNAT’L L. 281 (1999).

Lutz, Ellen & Kathryn Sikkink, The Justice Cascade: the Evolution and Impact of Foreign Human Rights Trials in Latin America, 2 CHI. J. INT’L L. 1 (2001).

Merry, Sally Engle. Constructing a Global Law—Violence Against Women and the Human

Rights System, 28 LAW & SOC. INQUIRY 941 (2003). Merry, Sally Engle & Rachel Stern, The Female Inheritance Movement in Hong Kong:

Theorizing the Local/Global Interface, 46 CURRENT ANTHROPOLOGY 387 (2005). Morgenthau, Hans J. POLITICS AMONG NATIONS (5th ed. 1978) (1948). O’Connell, Mary Ellen. New International Legal Process, 93 AM. J. INT’L L. 334 (1999). Rajagopal, Balakrishnan, International Law and Social Movements: Challenges of

Theorizing Resistance, 41 COLUM. J. TRANSNAT’L L. 397 (2003). Ruggie, John Gerard. What Makes the World Hang Together: Neo-Utilitarianism and the

Social Constructivist Challenge, 52 INT’L ORG. 855 (1998). Trimble, Phillip R. International Law, World Order, and Critical Legal Studies, 42 STAN.

L. REV. 811 (1990). Wilson, Richard A., Reconciliation and Revenge in Post-Apartheid South Africa,

Rethinking Legal Pluralism and Human Rights 41 CURRENT ANTHROPOLOGY 75 (2000).

PROPOSAL 23

Erika George University of Utah, S.J. Quinney College of Law

Human Rights Universality, Virginity Testing and

HIV/AIDS: From the Politics of Cultural Pluralism towards a Global Public Health Ethic

ABSTRACT: The paper will explore the tensions between gender equality,

personal autonomy and evolving cultural practices when a traditional practice that arguably violates universal international human rights and domestic constitutional norms also enjoys strong support—as is the case with virginity testing among certain communities in South Africa. By some estimates, more than 20 percent of the population ages 15 to 49 is infected with HIV/AIDS, a disproportionate share of those infected are women and girls. It is within this context that the practice of virginity testing has reemerged, advanced not only as a return to tradition but also as an AIDS prevention strategy. Women’s rights groups have objected to testing on gender equality grounds while traditional leaders, testers and girls are fighting for their “cultural rights.”

The paper examines the debates surrounding the resurgence of virginity

testing and its recent prohibition by the government in order to more fully consider the limitations of a universal liberal normative order when operating within a pluralistic cultural context under pressure from pandemic disease. In brief, the paper argues the current debate as been misguided and has served to misdirect attention away from developing strategies to better address the underlying issues that gave rise to resurgence in virginity testing. Observing that neither legal nor biomedical approaches absent an appreciation for culture can in isolation address pandemic disease, the article calls for a discursive shift from the politics of culture towards a substantive right to health and ultimately the conceptualization of a global public health ethic.

Part I explains the virginity testing procedure, tracks its revival and discusses

complications and concerns associated with testing. Part II situates virginity testing within the human rights literature on gender equality and cultural autonomy engaging the rights arguments advanced by both opponents and proponents of testing as rooted in international human rights instruments and South African Constitutional jurisprudence. Part III explains the shortcomings of abolition versus accommodation approaches to discriminatory cultural practices and the country’s legislative proposals to eradicate virginity testing. It is argued that virginity testing is symptomatic of a larger problem— disproportionately high HIV infection rates among women in South Africa. In Part IV, the paper posits a path for reconciling the divergent positions in the testing debate through advocating a discursive shift away from the politics of culture towards a substantive right to health informed by the “Capabilities” theory advanced by economist Amartya Sen that would redirect the focus of government and civil society towards a recognition that legal and biomedical approaches, absent an appreciation for and mobilization of cultural norms cannot in isolation sufficiently improve the public health.

Finally, Part V concludes that the resurgence in virginity testing when viewed as a community self-help solution signals a systemic failure on the part of the South African government and the International Community to address the HIV/AIDS pandemic.

EFFECTIVENESS OF INTERNATIONAL TREATIES

Lakshman Guruswamy, Ph.D. Nicholas Doman Professor of International Environmental Law

University of Colorado at Boulder

Introduction

Over the last fifty years international law has become a dynamic instrumentalist

social force addressing a wide range of socioeconomic, sociopolitical and biophysical

challenges through bilateral, regional, and global treaties. International law now includes a

formidable corpus of treaties dealing, for example, with labor, human rights, health,

intellectual property, taxation, the environment and energy. Many of these treaties

establish articulated and implied goals and objectives, and some of them create new

institutions. Moreover, the growing challenges presented by energy and environmental

problems necessitates new treaty arrangements that will change the way in which nations

behave.

This article addresses the effectiveness of international environmental and energy

(E/E) treaties from an instrumentalist and pragmatic standpoint. Since effectiveness and

ineffectiveness or success and failure of a treaty may be predicated on differing and

perhaps contradictory criteria, it may be useful to delineate the core predicates on which

this article assesses success or failure. But before doing so it is worth mentioning that the

any new E/E instrumentalist treaties must be based on an understanding of the reasons for

the success of healthy existing treaties, as well as the pathologies of failure.1 In trying to

create new treaties dealing with sustainable energy, the experience derived from 1800

energy treaties already in force must be taken into account. This article is based on an

impressionistic view of the lessons to be learned from past treaties, and will use the

artifice of two fictional treaties: treaty “a” and treaty “b”,

Treaty “a” is a weak treaty that does not correctly diagnose the challenge it seeks

to address. One part contains only shallow commitments,2 coupled with inadequate goals.

It reiterates what its parties would have done anyway, and requires only minimal or

1 Jose E. Alvarez, Why Nations Behave, 19 MICH. J. INT'L L. 303, 305 (1998).2 See George W. Downs et al., Is the Good News About Compliance Good News About Cooperation?, 50 INT’L ORG. 379, 383 (1996).

insignificant behavioral changes. It does not seek to remedy the causes of the challenge it

confronts. By contrast, another part of the treaty wrongly diagnoses a problem but

prescribes erroneous even onerous goals based on its wrong diagnosis. It embodies

inadequate methods of implementation. Neither parts of treaty “a” result in a positive

impact on the problem, or in needed behavioral changes.

Treaty “b” is a strong treaty based on the correct diagnosis of the problem, and

contains deep and substantive commitments and challenging goals addressing the causes

of the problem it seeks to address. It incorporates methods of implementation that will

facilitate the effective realization of its goals, results in behavioral changes, and has a

positive impact on the problem it seeks to address.

These two apocryphal treaties will be referenced to illustrate the predicates or

indicia by which E/E treaties will be judged. The first predicate relates to the correct

identification and diagnosis of the problem or issue that an E/E treaty purports to address.

Treaty “b” is based on a valid diagnosis but Treaty “a” suffers from the lack of one.

Second, following upon their diagnosis treaties should embody prescriptions aimed at the

core of the problem dealing with the sources of the malady. Successful treaties should

not skirt around the challenge or address symptoms rather than causes. Treaty “b”

canvases the causes of the problem it confronted while treaty “a” does not.

Third, having accurately identified the sources of a problem, the remedies

prescribed by a instrumentalist treaty almost invariably requires behavioral changes.

Therefore, treaties should incorporate methods of implementation and compliance crafted

to secure the effective attainment of their goals. This is what is done by treaty “b”

Fourth, the remedies and methods employed by a treaty should have a

demonstrably beneficial impact on the problem and help move the treaty toward the

practical attainment of its goals and objectives.

Fifth, In order to secure effective behavioral changes that have a favorable impact

on a problem functional, goal-oriented treaties like treaty “b” should command and induce

compliance through compliance securing architecture, and methods that both effectively

and beneficially impact the problems addressed by them.3

3 See Jose E. Alvarez, Why Nations Behave, 19 MICH. J. INT’L L. 303, 305 (1998).

This paper is confined to the third, fourth, and fifth factors enumerated, and builds

upon and further develops a seam of international teaching and writing on compliance,

effectiveness and impact of E/E treaties.4 In general, even the limited inquiry about

compliance with international law dealing with biophysical issues like the environment or

energy has been normative and theoretical. It has been confined to two questions: one,

has international law been implemented by being incorporated into domestic law through

legislative, judicial or executive action; and two, to what extent have countries complied

with a treaty by adhering to its provisions and the implementing machinery established by

it.5

Judging Effectiveness

It is time to examine the accuracy of the old chestnut that most nations conform to

international law most of the time.6 While this impressionistic claim has been repeated in

recent times7 and may be correct, the evidence for such an assertion today simply does not

exist in the energy and environmental areas. This is particularly the case because there is a

general absence of actual empirical evidence proving any such claims.

Ian Brownlie, who considers evidence of effectiveness to be extra-legal, asserts

that “the utility and effectiveness of a legal order must be determined ultimately by extra-

legal criteria.”8 Benedict Kingsbury points out that we do not have systematic studies to

verify the accuracy of Henkin’s venerable assertion that most of the time nations conform

to international law. Moreover, he states that the dearth of good empirical studies of the

correspondence between state behavior and international rules is a serious obstacle to

4 Brown Weiss, E, Jacobson , Harold K, Engaging Countries; Strengthening Compliance with Environmental Accords (1998); Dinah Shelton, Commitment and Compliance (2000); Kal Raustiala, Compliance & Effectiveness in International Regulatory Cooperation, 32 CASE W. RES. J. INT'L L. 387, 393-94 (2000) ; 4 ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY (1995); THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995); George W. Downs et al., supra note 5; Oran R. Young et al., Regime Effectiveness: Taking Stock, in THE EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL REGIMES 249 (Oran R. Young ed., 1999). Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J. 2599, 2603 (1997) 5 Brown Weiss, E, Jacobson , Harold K, Engaging Countries; Strengthening Compliance with Environmental Accords (1998); Dinah Shelton, Commitment and Compliance (2000). 6 Louis Henkin, How Nations Behave ( 2d ed. 1969) 7 David D. Victor, Enforcing International Law: Implications for an Effective Global Warming Regime, 10 DUKE ENVTL. L. & POL'Y F. 147, 151 (1999). 8 Brownlie, Ian, The Rule of Law in International Affairs, 11 (1999)

understanding and evaluating the international legal system.9 This lack of serious

empirical research pertains to compliance methods as well as to effectiveness and impacts.

While the effectiveness of international regimes is an established field of study, the

quality of the empirical evidence relied upon in the E/E areas is sparse at best and dubious

at worst.10

The success of a treaty, calls to be judged on empirical criteria that extend beyond

formal implementation, compliance, and theoretical adherence to legal obligations.11 The

success of a treaty will depend more poignantly on the extent to which it has affected state

conduct in moving a treaty toward its goals and objectives. This article will focus on the

empirical evaluation of effectiveness and impact.

Exercising semantic license this article defines effectiveness as the extent to which

the goals of a treaty have been achieved. Shallow commitments12 and weak obligations,

of the kind referred to in treaty “a” could nevertheless lead to effective compliance. This

is so even in cases where parties to treaty similar to “a” comply with its goals for reasons

of their own that are independent of the treaty. But while treaty similar to treaty “a” may

be effective it not have a significant impact on the underlying issue.13 It is important,

therefore, to understand a treaty such as treaty “a” not only in terms of its effectiveness in

achieving stated goals, but in light of its impact as a satisfactory response to the challenge

addressed, and the degree to which it changes state behavior. Impact is this context refers

to the positive extent to which a treaty influences and affects the problem it is addressing.

In dealing with effectiveness and impacts it is important to identify the goals of a

treaty, and to compare such goals with the results produced. It is also necessary to inquire

about the depth of these goals and the extent to which they did or did not remedy the

problem being addressed. Where the results, garnered from empirical data and evidence,

9 Benedict Kingsbury, The Concept of Compliance as a Function of Competing Conceptions of International Law50, in International Compliance with Nonbinding Accords (Brown Weiss, ed. 1997) 10 Andresen, H and Hey, Ellen, The Effectiveness and Legitimacy of International Environmental Institutions, 212 at 218, 5, International Environmental Agreements: Politics, Law and Economics (2005) 11 M.A. Fitzmaurice & C. Redgwell, Environmental Non-Compliance Procedures and International Law, 31 NETH, Y.B. INT'L L. 35, (2000).. 12 George W. Downs et al., Is the good news about compliance good news about cooperation? 50 INT'L ORG. 379, 383 (1996). 13 Kal Raustiala, Compliance & Effectiveness in International Regulatory Cooperation, 32 CASE W. RES. J. INT'L L. 387, 393-94 (2000); While Raustiala, who conflates the two concepts, this article draws a distinction between effectiveness and impact

do not match goals or point to the inadequacy of those goals, attention turns to the reasons

for such shortfalls. It is possible for shallow commitments and modest goals to reflect

what countries are already doing rather than what is needed to address the problem at

hand. Such an inquiry must traverse institutions, compliance methods, enforcement, and

the socioeconomic, political or cultural context that might explain the gaps between the

goals of a treaty and the inability to meet them, or the meagerness of the goals and the

ease with which they were met.

International institutions of differing types, created by treaties to serve their goals,

as well as international organizations in general,14 have been the subject of research and

teaching. By contrast, methods for ensuring compliance, although listed or catalogued,

have not been analyzed and examined from the point of view of their comparative utility,

effectiveness or impacts, despite the fact that compliance may depend on those methods.

The methods for ensuring compliance include various processes, implementing devices,

and different techniques employing distributive and resource transferring mechanisms,

grievance remediation (enforcement) machinery, private arrangements, and regulatory

frameworks. Of the few methods that have been examined,15 there has only been modest

investigation and analysis of the utility of various compliance methods16 and compliance

devices used by these international instruments to achieve their goals. When assessing

how methods have achieved goals, economic efficiency cannot be ignored. For example,

it is perfectly possible for an expensive method to achieve a modest goal when it could

have been done by another at less cost. Overall, it is important to assess and evaluate the

extent to which these varying methods have demonstrated economic efficiency in

achieving their treaty goals because future instrumentalist treaties will need to avoid

failures and embrace the successes of existing treaties

14 Alvarez, Jose, International Organizations as Law Makers (2005) 15 According to Victor, Enforcing International Law Implications for an Effective Global Warming Regime 10 Duke Envtl. L. & Pol'y F. 147 (1999), of t 140 multilateral environmental agreements covering a broad spectrum of issues, scholars have examined closely only a fraction of these agreements and issue-areas. 16 Summers, Robert S, Instrumentalism and American Legal Theory, 193-208 (1982) “Method” as used in this paper corresponds to the ”Implementive Machinery” described by Summers rather than to chapter 6 titled “Legal Method.”

While there is a substantial body of literature on “effectiveness,”17 these otherwise

theoretically illuminating contributions do not include any authoritative conclusions based

on comprehensive empirical examination of compliance, effectiveness or impacts of E/E

agreements.18 This is primarily because of the absence of comprehensive and organized

empirical evidence or data. The impressive study by Brown and Jacobson was based on

only five treaties.19

The existence of an empirically-based research and teaching lacunae relating to

methods, effectiveness and impacts has created a serious problem because the rationale

behind functional and instrumental legal treaties is to change behavior. The relative

absence of writing and teaching on the extent to which they have succeeded in doing so is

an omission that should be remedied.

This paper will describe and discuss a two-part project that is seeking to advance

sustainable energy solutions to the energy crisis confronting the world. The goals of the

exercise are unabashedly functional, rather than theoretical. They are to identify all energy

treaties in force along with other non-legal instruments including partnerships,

declarations, commitments, pledges and other decisions in the international domain that

deal with energy. They will be analyzed with a view to reaching conclusions about the

kind of treaties and other instruments that most effectively and efficiently promote

sustainable energy.

The first phase of this project, has identified some 1,800 energy treaties dealing

with different aspects of energy, that incorporate a variety of goals and methods. The

second phase of this project will track the implementation, compliance, effectiveness and

impact of these treaties—as well as identify and monitor compliance, effectiveness and

impacts vis-à-vis such non-legal instruments as partnerships, declarations, commitments,

and pledges. When completed, this project will erase the data deficit regarding energy

treaties, situate our understanding of these treaties within a broader instrumentalist

17 ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY (1995); THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995); George W. Downs et al., supra note 5; Oran R. Young et al., Regime Effectiveness: Taking Stock, in THE EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL REGIMES 249 (Oran R. Young ed., 1999). Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J. 2599, 2603 (1997). 18 The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice ix (David G. Victor et al. eds., 1998). 19 See fn 2 above

framework, and hopefully offer salient insights about the compliance methods,

effectiveness, and impacts of treaties.

ISEA/IPECC: An Empirical International Energy Law Research Project

Phase I: International Sustainable Energy Assessment (ISEA)

The insecurity created by the current hydrocarbon economy and the need to

develop more secure forms of energy are internationally recognized on a widespread

basis. Traditionally, national security has been associated with armed aggression and the

ability to thwart military invasions or subversion. More contemporary concepts of

security include critical threats to vital national and international support systems such as

the economy, energy and the environment. In this context, the increasing reliance on

hydrocarbons has created energy, environmental and economic insecurity.

However, the magnitude of the challenges arising in moving to a more sustainable

global energy regime cannot be solved by any one nation and must entail international

engagement and cooperation. The International Sustainable Energy Assessment (ISEA) is

designed to facilitate such cooperation and engagement by enhancing international

understanding of optimal ways to utilize and configure international energy agreements, in

order to facilitate the development of renewable energy technologies and technologies and

practices relevant to energy efficiency and energy conservation.

ISEA has created a unique database containing full text and analysis of

approximately 1,800 international energy treaties from all 192 countries in the world. The

ISEA database covers a wide array of energy subjects ranging from energy markets and

electricity infrastructure to renewable energy, energy efficiency, and hydrogen. By

providing a detailed empirical survey and analysis of in-force energy treaties, ISEA

constitutes the first critical step towards remedying the empirical research and teaching

lacunae related to the compliance, effectiveness and impacts of international energy

instruments.

The references to “instruments” are to a genus that includes a variety of

multilateral and bilateral agreements, pacts, treaties, protocols and conventions dealing

inter alia with science and technology, trade and investment, research and development,

technology transfer, and sustainable development.20 As currently envisioned, the principal

objective of these instruments will be to facilitate the development of primary sources of

energy—i.e., energy in its naturally occurring form—as well as energy conversion,

transmission and end-use distribution.21

ISEA builds upon the research frameworks already delineated,22 which seek to

foster the development of low greenhouse gas (GHG) global energy systems by

facilitating technology research. The ultimate goal of ISEA/IPECC is to advance the

negotiation of a comprehensive framework treaty on energy that can galvanize all nations

and peoples, including developing countries like China, India and Brazil, to commit to

renewable and sustainable energy targets. Such a treaty would be analogous to the Kyoto

Protocol that placed numerical quantitative restrictions on carbon emissions.

While a comprehensive treaty remains the ultimate goal, the immediate focus of

the ISEA phase is the creation of an empirical database. Providing such data does not

allow ISEA to presume to legislate the scope, structure, specific subject matter, final terms

or norms of proposed new energy instruments. Instead, ISEA is intended as a starting

point from which to begin the arduous interdisciplinary and collaborative work necessary

to negotiate a spectrum of instrumental treaties ranging from bilateral or regional science

and technology agreements, to trade and investment treaties, to more ambitious regional

treaties and overarching global conventions or protocols.

20 As discussed below, the definitional scope of “instruments” is expanded in phase two of this project to include non-legal pledges, commitments, partnerships and decisions. 21 The World Energy Council reports primary energy consumption for different countries based on rules for conversion of energy sources into primary energy. This accounting is a suitable method for comparing consumption of different energy sources in different countries. 22 See Franklin M. Orr, Jr., White Paper: Global Climate and Energy Challenge (available at http://gcep.stanford.edu/pdfs/gcep_white_paper.pdf).

During the ISEA phase of this project, EESI researchers were charged with the

task of identifying and analyzing every international energy agreement in the world

currently in force—including both bilateral and multilateral treaties. This obviously

daunting task required the creation of a uniform analytical structure that would render the

process of inputting information into the system straightforward and efficient, ensure that

essential information is captured (and conversely, that the lack of such information is also

captured), and facilitate and structure the comparative analysis of information within the

system. To that end, an analytical structure consisting of 29 fields was devised. All

1,800 agreements currently within the ISEA system were analyzed pursuant to this

uniform structure. The analytical structure is bifurcated into two primary divisions: (1)

key coordinates—containing such information as parties to the treaty, date entered into

force, and subject matter focus; and (2) substantive obligations, such as fundamental

obligations, financial commitments, and accountability mechanisms, including

information on and analysis of implementation, compliance, effectiveness and impact

(with much of the information in these latter four categories to come from the IPECC

phase of the project).

ISEA ANALYTICAL STRUCTURE / TAXONOMY OF OBLIGATIONS

Key coordinates fields include: (1) treaty name; (2) external reference ID; (3) date

signed; (4) date entered into force; (5) signatories; (6) parties to the treaty; (7) legal type—

a distinction internal to U.S. law; (8) termination / renewal clause; (9) bilateral or

multilateral; (10) subject matter; (11) amendments; (12) extensions; (13) related

agreements; (14) parent agreement; (15) subsidiary agreements; (16); international bodies

involved; (17) official contacts; and (18) the full text of the treaty.

The taxonomy devised for substantive obligations identifies the types of

obligations that call for both implementation and compliance. The fields that constitute

this structure are as follows: (1) goals / objectives; (2) fundamental principles; (3)

financial obligations; (4) institution-related obligations; (5) project-related obligations; (6)

interdependent obligations; (7) dispute resolution mechanisms; (8) implementing agency

and methods; (9) accountability / reporting mechanism; (10) implementation and

compliance; and (11) effectiveness and impact.

In addition to the two-dimensional view of the field structure denoted above, there

are numerous fields within this structure that contain subcategories of analysis, which are

dynamically interrelated —thus lending the system a degree of further analytical depth

and internal coherence. For instance, with respect to “subject matter focus” the system

currently contains treaties covering approximately 45 energy-related subject areas. Eight

of these subject areas are deemed primary or top-level categories (see figure 1 below).

P

Cooperation Agreements Electricity Infrastructure and Technologies Energy MarketsEnergy Storage Fossil Energy Nuclear Energy Sustainable Energy Transportation

Fig. 1 – ISEA Top-Level Subject Categories

Phase II: International Projects on Energy Commitments & Compliance

(IPECC)

The ISEA is the first phase of a larger research initiative of the Energy

Environment Security Initiative (EESI)—an interdisciplinary research center at the

University of Colorado at Boulder (the present author is the Director of this center). The

larger research program—the International Project on Energy Commitments and

Compliance (IPECC)—involves the construction of a comprehensive knowledge base and

analytical compass that will monitor compliance with both legal and non-legal

instruments, and other international decisions of multinational corporations. Such

independent global monitoring will be conducted through an innovative and unique online

compliance monitoring system. The system will be similar to the Wikipedia, the well-

known online encyclopedia, in that it will enlist and enable the participation of a

distributed group of dedicated individuals. Unlike Wikipedia, however, this will not be an

open-access system, but rather will engage the participation of approved entities and

individuals throughout the world. The system will offer publicly and freely available data

facilitating the development and drafting of new and better international energy

instruments and decision-making

As the sister project of ISEA, IPECC is designed to improve and enhance the

efforts of governments, non-governmental actors (such as corporations, non-governmental

organizations (NGOs), trade unions, and churches), and key decision-makers throughout

the world in two ways: first, by evaluating the extent to which their existing commitments

and pledges are actually working; and second, by facilitating new and better clean and

affordable energy solutions.

At present there are hundreds of international treaties that seek to advance

sustainable energy technologies and policies. In addition to international treaties, recent

years have given rise to dozens of partnership agreements involving countries and private

sector entities, scores of pledges found in political resolutions, and numerous other non-

binding instruments. These instruments express commitments, of varying degrees and in

different ways, supporting the development of sustainable energy technologies.

Furthermore, there are numerous other commitments made by private corporations that

also seek to advance sustainable energy policies and technologies. While the extent and

form of such commitments and pledges has received some attention, an increasingly

important, though unanswered question, relates to how effectively they have been

implemented, and the degree to which they actually achieve progress by impacting

behavior and moving toward sustainable energy goals.

ISEA and IPECC seek to provide the information needed to improve the

effectiveness of existing commitments and encourage new commitments where necessary.

Collectively, these projects are designed to track and monitor the implementation of

sustainable energy commitments undertaken by governments, corporations and other

entities, and to provide detailed information on the extent to which these commitments are

being complied with. In doing this, ISEA and IPECC will serve as watchdogs over what

is and should be happening with respect to these instruments and the commitments they

embody.

Through the use of the innovative collaborative online monitoring system,

ISEA/IPECC will create a global network of expert participants dedicated to monitoring

and improving actions taken pursuant to international energy commitments. Project

information, analysis and recommendations will also be made freely available through a

public website and disseminated through annual reports.

OUTLINE CONTINUED

Expand on taxonomy

Explain why it is different to earlier data collection exercises

Delineate differences between effectiveness and impacts

Examine the challenges in devising metrics to measure effectiveness, impacts

Discuss how to distinguish legally motivated behavior from other causes of

behavior

PROPOSAL 31

Ernesto Hernández-López Chapman University School of Law

Sovereignty Migrates in US and Mexican Law: Transnational Influences in Plenary Power and Non-Intervention

<PROPOSAL IS A PDF FILE>

ABSTRACT: Mexico and the US exercise increasingly transnational, less absolute, sovereignty with respect to migration. This is evident in changes to Mexico’s norm of non-intervention (NIV) and the US’ plenary power doctrine (PPD), two doctrines sourced in international sovereignty. Both historically defined sovereign authority in absolute terms, avoiding any foreign influence or domestic limitation. NIV prohibits Mexican foreign relations from interfering in another state’s domestic affairs. Traditionally it barred a foreign policy on migrants in the US, leading to Mexico’s “no policy” on migrants. PPD labels immigration law as immune from judicial review because the political branches have complete, “plenary,” authority over it. Traditionally, PPD barred constitutional limitations to this migration authority. Two events since 2001 inspire a transnational examination of changes in traditional sovereignty. First in Zadvydas v. Davis, the Supreme Court explicitly stated that the plenary power is “subject to important constitutional limitations.” Second, Mexico actively lobbied US lawmakers for reforms to US immigration laws, an effort sometimes called the “whole enchilada.” These developments point to the opposite of each doctrine’s conclusion, that: there are constitutional limits to PPD and foreign relations may influence another state’s lawmaking. This examination is presented in five sections which: transnationally analyze international migration, describe PPD and NIV’s foundations in absolute sovereignty, present Mexico’s active foreign relations on migrants, discuss the US Supreme Court’s use of the canon of avoidance to limit PPD, and conclude how these changes suggest a transnational influence in legal sovereignty conceptions.

PROPOSAL 22

Patrick J. Keenan

University of Illinois College of Law

China in Africa: Breaking and Remaking the Human Rights Paradigm In November 2006, heads of state and foreign ministers from 48 African countries gathered in China for a two-day summit on trade and investment. At the end of the summit, Chinese President Hu Jintao promised the his country would double aid to Africa by 2009 and would make available at least $5 billion in loans and credits. The China-Africa summit was only one of a series of steps that China has taken to increase its investments and influence in Africa. Trade between China and countries in Africa increased from $10 billion in 2000 to approximately $55 billion in 2006. By the start of 2006, Chinese companies had opened 750 businesses in Africa worth at least $1 billion. Although Beijing’s investments have mostly been in service of its search for raw materials to fuel its booming economy, it has also invested in telecommunications, infrastructure projects like roads and bridges, and is even building a new conference hall for the Africa Union. The economic and strategic consequences of China’s increased focus on Africa have been the subject of much debate in the U.S. and around the world, but much less attention has been paid to the effect of China’s new approach on human rights in Africa. After the end of the Cold War, aid and investment in Africa dropped significantly. During the Cold War, the U.S. and the Soviet Union used aid—humanitarian and military both—to compete for the resources and loyalty of African states. With the collapse of the Soviet Union, the money dried up. No longer did the U.S. need to use foreign aid and investment to buy friends. Aid from the U.S., and from Western institutions such as the International Monetary Fund and the World Bank, came with conditions attached, many of which sharply reduced social services and thereby weakened leaders in developing countries who used state handouts to ensure their political careers. Aid was not free money; more and more, it was a reward, conferred only on those states that complied with a growing list of conditions. During roughly the same period, the concern for human rights came more fully into focus as an issue that influenced not only state practice, but also the actions of corporations. Western corporations became sensitive to accusations that their foreign suppliers or subsidiaries engaged in unfair labor practices or damaged the environment. This was especially true for those corporations whose products were sold in the West to the public and whose brands were therefore dependent on the good will of ordinary consumers. To be sure, human rights concerns did not predominate, but they were increasingly important as corporations decided where to invest in the developing world.

The rise of China, and its willingness to spend its foreign currency reserves to build roads in Gabon, develop mines in Zambia, or buy oil from the pariah regime in Sudan, has changed the equation. How will human rights be enforced in an era when rogue leaders can obtain what they need—financing, arms, markets for their goods—without subjecting themselves to the conditions that attach to Western engagement and aid? I identify three factors that can help to re-start the human rights project. First, Western lenders must make it easier for developing countries to obtain aid. This need not mean lowering human rights or environmental standards. Instead, Western lenders and aid agencies must make themselves more efficient and easier to work with. Consider an analogy. The World Bank and other institutions have developed indices of the business climate in a country—measuring such things as the amount of time it takes to incorporate a business, the number of forms that must be submitted, and the like. By this measure (and without considering substantive standards), China presents a much more hospitable business climate than do Western lenders. Second, I argue that there is a public choice story that might explain lead to greater respect for human rights. Consider the Foreign Corrupt Practices Act. In response to a number of bribery scandals, a combination of shareholder and public pressure helped to create support for the statute. Once the statute was in place, American firms and the United States government wanted everyone to have to play by the same rules, so eventually FCPA-like statutes spread around the world. This is a form of a phenomenon sometimes seen in antitrust cases: firms seek to raise rivals’ costs to gain an advantage. Firms sometimes lobby to be free of regulations that their competitors don't face, and sometimes lobby in favor of measures to regulate their competitors so that everyone faces the same constraints. Chinese engagement in Africa might lead to a similar dynamic. The Chinese offer capital much more cheaply than other lenders for a couple of reasons. First, they do not insist on transparency rules, so corrupt officials find it easier to line their pockets when dealing with Chinese lenders. Second, their procurement and lending processes are simpler and faster. Finally, Chinese investment often includes significant infrastructure work too. For example, China recently forgave Zimbabwe's debt in exchange for the right to rebuild and then control the railroad line that connects mines in the interior to the coast. So far, Chinese lenders have been left mostly alone because they went where other firms didn't want to go. No one else was interested in the Chambishi mine in Zambia, for example. But now, firms that have to compete with the Chinese are feeling the pressure behave like the Chinese, and they are protesting. Mittal just signed deal in Sierra Leone that includes not just mining concessions but infrastructure commitments. That makes sense for a firm like Mittal that does a lot of different things, but many competitors were not in a position to be as generous. As those firms start to push for better adherence to transparency requirements and accounting norms so they will be better able to compete, human rights standards will be reintroduced into lending decisions. Finally, the globalizing of brands will be accompanied by a globalizing of better corporate responsibility standards. Global brands can produce a race to the top, much as

highly mobile capital can contribute to a race to the bottom. Consider Mittal. First, it is a global brand now, and what its subsidiary in Sierra Leone does has the potential to affect the value of its brand around the world. Second, because of better telecommunications and the explosion of watchdog organizations, it is more likely than ever before that consumers will hear about Mittal's adventures in Sierra Leone. Third, because it's a global brand, Mittal cannot effectively segment its reputation. That is, it cannot obtain the benefits that come from having a good in the United Kingdom or India (such as government contracts or favorable reviews from regulators) while avoiding the costs of having a bad name in Africa. One implication of this is that it is risky for firms to grow too big. But another implication is that firms must regulate much more closely the behavior of their far-flung divisions.

1

1

PROPOSAL 8

Kenneth Lasson University of Baltimore School of Law

TORTURE, TRUTH SERUM, AND TICKING BOMBS:

Toward a Pragmatic Perspective of Coercive Interrogation Introduction I. Torture throughout History A. Traditional Purposes and Methods B. Methods of Modern Torture C. Efficacy and Probative Value of Traditional Coercive Methods II. Toward a Pragmatic Perspective of Coercive Interrogation A. Defining Torture B. International Conventions and Constitutional Considerations C. Use of Torture in Ticking-Bomb Scenarios – the Israeli experience

– alternatives to coercive interrogations (demolitions; curfews; blockades, encirclements, and checkpoints; administrative detentions; pre-emptive strikes)

– the American approach III. Truth Serum and Ticking Bombs A. Distinguishing Use of Truth Serum from Torture (primary KL argument) B. Use of Truth Serum in Ticking-Bomb Interrogations C. Methodology, Efficacy, and Ethics Conclusion

I don’t wanna bypass the Constitution, but these are extraordinary circumstances. – Jack Bauer, U.S. Counter-Terrorism Agent1

Introduction

The “War on Terror” has prompted a great deal of discussion about the use of torture as a means of extracting information from those suspected of having perpetrated past acts of violence or planning future ones. Despite the years that have passed since the attacks of September 11, 2001, there is still a strong tension between the competing emotions of anger, revenge, and desperation, and adherence to international norms governing a nation’s moral and legal obligations, to protect its citizens from grave danger while promoting their individual freedoms. Among the more difficult questions to emerge from those that were far-fetched if not unthinkable a few decades ago is how to handle the so-called “ticking time-bomb” scenario.2 As terror organizations grow in size and complexity, uncovering their plans through the interrogation of a group member has become critical, the need to

1 U.S. Counter-Terrorism Unit on the television program “24” (quoted in Jane Mayer, Whatever It Takes, NEW YORKER MAGAZINE, February 19, 2007 at p. 68). 2 The ticking-bomb image first appeared in Jean Lartéguy’s 1960 novel Les Centurions. Mayer, supra note 1 at p. 67 (quoting Darius Rejali, author of forthcoming book, TORTURE AND DEMOCRACY).

2

gather intelligence in order to save lives increasingly urgent. Another way of looking at this question is to compare the use of coercive interrogation techniques in, say, the television program “24” with those that are likely being employed to prevent terror attacks that take place in, say, Iraq and Israel.3 The lines between truth and fiction have become exceedingly if not frighteningly blurred.4 For all its fictional liberties, “24” depicts the fight against Islamist extremism much as it has been defined by the Bush Administration: a perilous and all-consuming struggle for America’s survival that demands the toughest of tactics.5 The notion that physical coercion in interrogations is unreliable, although widespread among military intelligence officers and F.B.I. agents, has been firmly rejected by the Administration.6 This article considers the use of torture in obtaining such information, including the form and the extent to which it might be acceptable – and particularly whether the administration of “truth serum” constitutes torture.7 Part I summarizes the definition, purposes, methods, and probative value of torture throughout history. Part II analyzes and suggests a pragmatic perspective on the issue of coercive interrogation, particularly in the “ticking time-bombs” scenario. Part III examines the legal and ethical propriety of the administration of “truth serum” for the sole purpose of extracting information to prevent future harm.8

I. Torture Throughout History Pain forces the innocent to lie.

– Publilius Syrus9

Answering the question ultimately at issue in this paper – whether the administration of truth serum as part of a

3 “24” has a weekly audience of fifteen million viewers. Mayer, supra note 1 at 77. 4 Homeland Security Secretary Michael Chertoff praised “24”’s depiction of the war on terrorism as “trying to make the best choice with a series of bad options. . . . Frankly, it reflects real life.” Mayer, supra note 1 at 82. “Most terrorism experts will tell you that the ‘ticking time bomb’ situation never occurs in real life, or very rarely. But on our show it happens every week.”(Id. at 67, quoting Bob Cochran, co-creator of “24”). 5 Id. See also John Doyle, 24 Becomes Touchstone of War on Terror, THE GLOBE AND MAIL (Canada), Feb. 19, 2007 at p. R3. See also “Torture on TV Imitated in the Field,” Human Rights First, Communiccations@HumanRightsFirst.org, Feb. 13, 2007; “Jihad Vows to Avenge Leader’s Death,” Jerusalem Post OnLine Edition, http://www.jpost.com, Feb. 21, 2007; and “Egypt: Palestinian Nabbed, Planning Suicide Attack on Israelis,” Haaretz.com, Feb. 21, 2007. 6 In September 2006, President Bush defended the C.I.A.’s use of “an alternative set of procedures.” In order to “save innocent lives,” he said, the agency needed to be able to use “enhanced” measures to extract “vital information” from “dangerous” detainees who were aware of “terrorist plans we could not get anywhere else.” Mayer, supra note 1 at 77. 7 The term “truth serum” is used throughout this article to describe variety of mind-altering substances with properties (specifically sodium amytal scopolamine, and sodium pentothal) considered capable of eliciting the truth. See infra note and accompanying text. 8 In “24,” when a libertarian lawyer makes a principled argument to a Presidential aide against unwarranted detentions ( “You continue to arrest innocent people, you’re giving the terrorists exactly what they want”), the aide sarcastically responds, “Well! You’ve got the makings of a splendid law-review article here.” Mayer, supra note 1 at 68. 9 First-Century B.C. Roman writer of mimes, Sententiae, No. 171 [CDQ 914].

3

coercive interrogation should be permitted in ticking-bomb cases – should begin with an overview providing context for the use of torture through the ages. Although torture has come to be abhorred and prohibited in most modern societies, its use for the purpose of obtaining criminal confessions was once a mainstay in virtually all legal systems, and persists in many.

Traditional Purposes and Methods of Torture The traditional justifications for the use of torture have been primarily four-fold: (1) to interrogate; (2) to instill fear; (3) to punish; and/or (4) to prevent future harm.10

In Europe, the law of torture evolved in conjunction with the production of evidentiary proof. Since courts themselves often dictated the specifics of how it was utilized, the practice became known as “judicial torture.”11 In order to meet the standard of proof necessary for a conviction, either the testimony of two eyewitnesses to a crime or a voluntary confession of an accused was required. Torture became an acceptable method for obtaining such a confession. The evidence gathered under the coercion of torture was used to corroborate confessions, instead of the confession being used to corroborate the evidence.12 Although this practice of judicial torture was finally abolished in the mid- to late 1700's, a host of “modern” justifications for torture emerged.13

In Uzbekistan and Egypt, for example, torture is used to eradicate political dissent and to meet perceived security threats. The same is true in China and Turkey. In Brazil, criminal suspects are routinely tortured to extract confessions for everyday crimes.14 State actors have often used torture for the purpose of satisfying base desires, such as persecuting political or ethnic groups. The individuals actually administering torture may be motivated by sadism or revenge.15 Torture employed ostensibly for the purpose of obtaining information or a confession is still seen in the Peoples’ Republic of China.16 Even in the United States, torture and related forms of coercive interrogation have become tools for addressing the

10 Elizabeth S. Silker, Terrorists, Interrogation, and Torture: Where Do We Draw The Line?, 31 JLEGIS 191, 201 (2004). > refer to country reports or reports by Amnesty International, etc.? 11 JOHN H. LANGBEIN, THE LEGAL HISTORY OF TORTURE IN TORTURE: A COLLECTION, p. 94, edited by Sandford Levinson, Oxford University Press, 2004. 12 Id. 13 Id. at 96. >include info. from James Ross in Torture, A Human Rights Perspective 14 [insert country reports found on U.S. State Department web-site] 15 The Latin American countries of Guatemala, El Salvador, and Honduras have engaged in some of the worst official human rights violations in recent history. JENNIFER K. HARBURY, TRUTH, TORTURE, AND THE AMERICAN WAY: THE HISTORY AND CONSEQUENCES OF U.S. INVOLVEMENT IN TORTURE, p. 29 (Beacon Press 2005). 16 JUNG CHANG, WILD SWANS: THREE DAUGHTERS OF CHINA ( ed., Touchstone, August 12, 2003).

4

threat of terrorism.17 Such practices might not sit well with American interrogators. In November 2006, U.S. Army Brigadier General Patrick Finnegan, dean of the United States Military Academy at West Point, flew to Southern California with three veteran federal law-enforcement officials to meet with the creative team behind “24.” They expressed their concern that the show’s central premise – in certain situations the letter of American law must be sacrificed for the sake of national security – was promoting unethical and illegal behavior and adversely affecting the training and performance of actual American military personnel. “The disturbing thing,” said Finnegan, “ is that although torture may cause Jack Bauer some angst, it is always the patriotic thing to do.”18

Methods of Modern Torture

For the most part, the methods of modern torture are as varied as they are diabolical. Only a few of them are described below. Civilian political dissidents and others are often subjected to rape, burning with cigarettes, and prolonged beatings. Many accounts exist of detainees being stripped naked and chained to cots while exposed to various harmful gasses, or of strapped to benches with their legs stretched out in front of them, with bricks placed beneath their ankles until the pain becomes unbearable. Confessions are often extracted with threats to family members or loved ones.19 In the early 1970's, coercive interrogation techniques of suspected Irish Republican Army (IRA) members by British forces subjected suspects to hours of wall-standing (being forced to stand spread-eagled on toes with fingers on the wall above the head, so that the body weight is on the toes and fingers); hooding; continuous loud and hissing noises; sleep deprivation; and restricted food and water.20 The European Commission of Human Rights found that these practices constituted torture collectively, and the European Court of Human Rights viewed them as inhuman and degrading.21 This distinction between what acts constitute the “aggravated” form of inhuman treatment has given rise to much debate. Similarly controversial was whether the acts employed by U.S. Special Forces against detainees in Afghanistan and Iraq, when considered individually, amounted to torture under international law or were again examples of inhuman and degrading treatment. In addition to beatings, the documented methodologies included keeping detainees standing or kneeling for hours in black hoods or spray-painted goggles while in awkward painful positions; depriving them of sleep by exposing them to twenty-four hours of lights; and selectively giving pain-killing drugs to a suspect with gunshot wounds.22

17 KENNETH ROTH, ED., TORTURE: DOES IT MAKE US SAFER? IS IT EVER OK? A HUMAN RIGHTS PERSPECTIVE, p. xiii (New Press 2005). See also Peter Whoriskey, Judge Orders Padilla Jail Personnel to Testify, WASHINGTON POST, Feb. 17, 2007 at p. A17; and Laura Parker, Terror Suspect’s Claim: too Traumatized for Trial, USA TODAY, Feb. 14, 2007 at p. 1A. 18 Mayer, supra note 1 at 72. 19 Id. at XIX 20 Id. 21 Id. 22 Id. at 154.

5

Other techniques carried out by U.S. armed forces against “enemy combatants” included “prolonged stress positions and isolation, sensory deprivation, hooding, exposure to cold or heat, sleep and dietary adjustments, 20-hour interrogations, removal of clothing and deprivation of all comfort and religious items, forced grooming, and exploitation of detainees’ individual phobias.”23

Efficacy and Probative Value of Traditional Coercive Methods

Two contemporary types of torture have been classified as terroristic and interrogational. The goal of the former is to intimidate; of the latter to extract information.24 Interrogational torture is commonly employed against suspected terrorists or other criminals in ticking-bomb situations – that is, when it is believed the only way to prevent imminent death or danger is to coerce revelation of the plan. The efficacy and probative value of traditional coercive methods (those other than the administration of truth serum, which is discussed in Part III) has been widely debated.25

Some maintain there is a “moral duty” to employ torture in order to gain information in ticking-bomb situations,26 while others believe a resort to torture is a “sign of desperation, an admission that your side has no other resources left.”27 These arguments focus on moral and philosophical theories, combined with the practical questions of effectiveness and predictability.28 Advocating the use of torture in certain situations, some observers promote a “harm minimization rationale,” where the question of whether torture is “morally defensible” should depend upon the following factors: (1) the number

23 CCPR/C/USA/CO/3, CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT Concluding observations of the Human Rights Committee: UNITED STATES OF AMERICA, ¶ 13, 15 September 2006 available at http://www.unhchr.ch/tbs/doc.nsf/0/0d83f7fe89d83ed6c12571fb00411eb5/$FILE/G0644318.pdf. 24 Henry Shue, TORTURE, p. 53, found in TORTURE, A COLLECTION, edited by Sanford Levinson, Oxford University Press, 2004. 25 See supra note and accompanying text. 26 Charles Krauthammer, The Truth About Torture: It’s Time to be Honest About Doing Terrible Things, THE WEEKLY STANDARD, Volume 011, Issue 12 12/05/2005 found at http://weeklystandard.com. 27 TOM HEAD, ED. IS TORTURE EVER JUSTIFIED? Thomson Gale, 2005 (citation omitted). 28 “If coercion is unreliable, then it is unlikely that it will produce the timely and accurate information that is sought.” Philip N.S. Rumney, The Torture Debate: Is Coercive Interrogation of Terrorist Suspects Effective? A Response to Bagaric and Clarke, 40 U.S.F.L. REV. 479, 481 (2006). Rumney argues that proponents of such measures rely on incomplete information and make illogical conclusions. For instance, criticizing Alan Dershowitz’s assumption that torture exists for a rational reason – as a means of preventing terrorism – he points out that such coercion has been used for a host of less justifiable reasons, [such as ? ? ? – add reasons]. Id. at 488. Rumney also casts doubt on the claims of Israeli authorities that they have prevented ninety planned terrorist attacks by the use of coercive interrogation. Id. at 502, quoting B’Tselem, Routine Torture: Interrogation Methods of the General Security Service 30 (1998). Rumney also contends that the information obtained through coercive interrogation may not always be valuable or reliable because the subject may be motivated to provide the information simply to stop the pain. Additional problems with coercive interrogation, according to Rumney, include the problem of the slippery slope and the difficulty in correctly identifying terrorists or those who possess “required knowledge” in the first place. Id. at 500.

6

of lives at risk; (2) the immediacy of the harm; (3) the availability of other means to acquire the information; (4) the level of wrongdoing of the agent; and (5) the likelihood that the agent actually does possess the relevant information.29 Under this theory all forms of physical coercion may be inflicted on the suspect: the primary consideration is the magnitude of the harm that the state wishes to prevent.30

II. Toward a Pragmatic Perspective of Coercive Interrogation

If King John had had to contend with suicide bombers,

he might never have signed [the Magna Carta]. – Horace Rumpole31

– Determining the question ultimately at issue here – whether the use of truth serum in ticking-bomb situations amounts to proscribable activity – requires a clear understanding of the terminology of torture. Defining Torture The most widely-accepted functional definition of torture can be found in Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter “the C.A.T.”). The C.A.T. defines torture as:

29 See, e.g., Mirko Bagaric and Julie Clarke, Not Enough Official Torture in the World? The Circumstances in which Torture is Morally Justifiable, 39 U.S.F.L. REV. 581, 611 (2005). 30 Id. They base their argument on the concept of “hedonistic act utilitarianism,” where torture is justified because “the harm caused to the agent will be offset by the increased happiness gained to other people.” Not even the right to life is sacrosanct, they claim – as evidenced by the fact that the use of deadly force in self-defense is authorized in all cultures. 31 JOHN MORTIMER, RUMPOLE AND THE REIGN OF TERROR (Viking Press 2006).

7

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.32

32 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, entered into force on 26 June 1987, in accordance with Article 27 (1), available at http://www.ohchr.org/english/law/cat.htm. As of January 2007, the CAT has been signed by 135 countries to date. [verify]

8

But this definition of torture is far from unambiguous. Many nations, in the course of establishing their own internal legislation to prevent torture as required by Article 2 of the Convention, have developed broader or narrower interpretations of the words “any act.”33 In addition, there is no uniform understanding among signatories about what acts or omissions constitute egregious types of cruel, inhuman, or degrading treatment but still fall short of torture, nor is there consistency in the prohibition of both mental and physical suffering.34 [note case about “near death” mentioned in O’Connell article]35

For example, does mental suffering include prolonged effects such as flashbacks or post-traumatic stress, or is it limited to what occurs as a direct result of an act at the time it is being committed? Attempting to provide clarification, the United States submitted the following as part of its formal reservations, as well as a condition for American ratification of the C.A.T.:

33 GAIL H. MILLER, DEFINING TORTURE at p.7. Miller points out that while Art. 1 requires an “act,” the United Kingdom holds that “it is immaterial whether the pain or suffering . . . is caused by an act or an omission” (quoting Consideration of Reports Submitted by State Parties under Article 19 of the Convention, United Kingdom, U.N. Doc. CAT/C/67/Add.2, at ¶ 39, available at http://unhchr.ch/tbs/doc.nsf/(Symbol)/CAT.C.67.Add.2.En?Opendocument). In contrast, however, Greece uses the term “infliction” instead of “act” and requires that it be “systematic.” Id. at note 37 (quoting Consideration of Reports Submitted by State Parties under Article 19 of the Convention, Greece, U.N. Doc. CAT/C/61/Add. 1, at ¶ 230, available at http://unhchr.ch/tbs/doc.nsf/(Symbol)/CAT.C.61.Add.1.En?Opendocument). 34 Miller, supra note at 11-12. 35 Mary Ellen O’Connell, Affirming the Ban on Harsh Interrogation, 66 OHSLJ 1231 (2005).

9

(1) (a) . . .in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.36

36 U.S. Reservations, Understandings and Declarations, ¶ II, available at http://www.ohchr.org/english/countries/ratification/9.htm#reservations.

10

While this definition provides more specific guidance as to what constitutes mental suffering, it does not specifically refer to “truth serum” – a catch-all term which covers a variety of mind-altering substances with properties considered capable of diminishing control of the central nervous system, thereby relaxing inhibitions and ostensibly eliciting the truth from those to whom it is administered. Truth serums are actually barbiturates such as scopolamine, sodium amytal, and sodium pentothal.37 International Conventions and Constitutional Considerations The basis for international agreements banning torture is that it offends modern notions of morality. It is likened to other crimes against human dignity and society, such as rape and genocide.38 It is said to degrade the high ground that Western culture has sought for over a century:

37 David Brown, Some Believe 'Truth Serums' Will Come Back, WASHINGTON POST, November 20, 2006; Page A08, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/11/19/AR2006111900891.html. See generally infra Part III. 38 See Geert-Jan J.G. Knoops, Defenses in Contemporary International Criminal Law 29 (2001).

11

Experience has shown that if torture, which has been deemed illegitimate by the civilized world for more than a century, were now to be legitimized – even for limited use in one extraordinary type of situation—such legitimation would constitute an important symbolic setback in the worldwide campaign against human rights abuses. Inevitably, the legitimation of torture by the world’s leading democracy would provide a welcome justification for its more widespread use in other parts of the world.39

39 Dershowitz, supra note at p.145.

12

This rationale is why the C.A.T. (which was ratified by the U.S. Senate in 1994) specifies that “no exceptional circumstances, whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”40

Others see the use of torture, even in the ticking-bomb scenario, as a capitulation to the terrorist’s evil standard. “Resort to torture could conceivably stave off catastrophe. But at what price to our self-respect?...We are in a war of the decent against the indecent. We dare not cross the line that separates the two.”41 These arguments of course leave Western democracies in a precarious position. Will such adherence to values we hold dear shackle us even in extraordinary circumstances, ultimately (as some say) consigning us to the dustbin of history? On the other hand, moral arguments may also be made to justify torture in particular circumstances such as the ticking-bomb situation. In theory it is easy to disavow all torture. Human Rights organizations can advocate policy without ever having to assume responsibility in determining the fate of others. Amnesty International can be praised for taking the high road – that is its role, because it need not make hard judgments about choices of evil. In the real world, however, governments must act in the interest of the people and take whatever actions are necessary to prevent widespread harm. Government officials are sometimes in a quite different position.”42

Just as it is the government in which we have entrusted a legitimate use of force during wartime, it is to the government we look for action in a ticking-bomb scenario. Responsibility for its resolution falls upon a nation’s leadership.43 In the “dirty hands” leadership theory, a leader is faced with determining whether to authorize the torture of a captured rebel leader who knows or probably knows the location of a number of bombs hidden in apartment building and set to go off within twenty-four hours. Even though he believes that “torture is wrong, indeed abominable, not just sometimes, but always,” the leader orders the man tortured, convinced that he must do so for

40 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, entered into force on 26 June 1987, in accordance with Article 27 (1), available at http://www.ohchr.org/english/law/cat.htm. See supra note 2 and accompanying text. 41 Jeff Jacoby, How Not to Win the War, BOSTON GLOBE, Jan. 26, 2003, at p, H11. 42 Alan M. Dershowitz, The Torture Warrant: A Response to Professor Strauss, 48 N.Y.L. SCH. L. REV. 275, 279 (2003). 43 In many episodes of “24,” heroic American officials act as the tormentors of suspects thought to have knowledge of ticking bombs..“Isn’t it obvious that if there was a nuke in New York City that was about to blow – or any other city in this country – that, even if you were going to go to jail, it would be the right thing to do?” Mayer, supra note 1 at 67 (quoting Joel Sarnow, creator/producer of “24”). See also Max Weber, Speech, Politik als Beruf (Politics as a Vocation) (Munich University, 1918), in The Vocation Lectures, Hackett Pub. Co. (2004) (a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.).

13

the sake of those who might otherwise die in the explosions.44 American citizens expect their armed forces – under the control of the executive branch – to fight for their interests. (“People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.”)45 It is this role-specific ethical standard that distinguishes an average person’s proper behavior from that of those who govern.46 At its most basic, the “dirty hands” theory is a utilitarian cost-benefit calculation. Such an analysis was set out by both Jeremy Bentham and John Stuart Mill, who are credited with the libertarian underpinnings of American political philosophy.47 Here’s Bentham:

44 Michael Walzer, Political Action: The Problem of Dirty Hands, Philosophy and Public Affairs, 1973, quoting George Orwell. [is this a book? an article?] 45 Roger Cohen, An Obsession the World Doesn’t Share, NEW YORK TIMES UPFRONT, March 28, 2005. 46 Adam Raviv, Torture and Justification: Defending the Indefensible, 13 GEO. MASON L. REV. 135, 142 (Fall, 2004). 47 [source?]

14

For the purpose of rescuing from torture a hundred innocents, should any scruple be made of applying equal or superior torture, to extract the requisite information from the mouth of one criminal, who having it in his power to make known the place where at this time the enormity was practicing or about to be practiced, should refuse to do so? To say nothing of wisdom, could any pretence be made so much as to the praise of blind and vulgar humanity, by the man who to save one criminal, should determine to abandon a 100 innocent persons to the same fate?48

48 Quoted in W.L. Twining and P.E. Twining, Bentham on Torture, NORTHERN IRELAND LEGAL QUARTERLY, AUTUMN 1973, p.347.

15

Under this rationale, torture of the ticking-bomb suspect would be justified to prevent the deaths of many innocent civilians49

But even professed utilitarians, recognizing that this view places governments on a very slippery slope – none can be trusted to use such power wisely in practice – might support an absolute prohibition against institutionalized torture. Examples abound throughout history: without restraint, what is to prevent a once-fair-minded regime from evolving into one like those of Lenin, Stalin, Mao and others, which epitomized an ends-justifies-the-means view of implementing socialism/communism that led to the murders of millions.50 It is therefore important to consider not just the moral arguments for or against the use of torture, but also a legal framework that may provide justification for its use, particularly in a ticking-bomb case. In the United States, is there any legal obstacle to torturing a suspect who has been taken into custody and is suspected of possessing valuable information about an impending terrorist attack?

[should there be a different standard for an enemy combatant?]

The Fifth Amendment prohibits coerced self-incrimination, to the extent that compelled statements are generally excluded from use in prosecution. However, what if statements obtained as a result of torture are not used to prosecute the suspect, but employed solely to obtain information about a pending attack? The Due Process clauses of the Fifth and Fourteenth Amendments control this question only to a limited extent. It is clear that if a suspect’s due-process rights are violated, through the use of torture, a confession obtained by such violations would preclude the use of the confession in prosecution.51 The Eighth Amendment, which prohibits “cruel and unusual punishment,” has been construed to apply only to post-conviction punishment.52 Specifically, the Supreme Court has upheld the forcible administration of psychotropic medication to mentally ill prisoners.53

49 See Dershowitz, supra note at 143. 50 Id. at 145. (quoting W.L. Twining and P.E. Twining, “Bentham on Torture, supra note at 305, 348-49). 51 See, e.g., Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461 (1936)(holding that savage beatings of the suspects violated the due process clause of the Fourteenth Amendment, and therefore any confession obtained by such a violation were precluded from use in prosecution.); Leyra v. Denno, 347 U.S. 556 (1954)(“use in a state criminal trial of a defendant’s confession obtained by coercion—whether physical or mental—is forbidden by the Fourteenth Amendment”). [there are more recent cases – Shepardize] 52 See, e.g., Ingraham v. Wright, 430 U.S. 651, 664 (1977) (holding that the Eighth Amendment protects those convicted of crimes). 53 Washington v. Harper, 110 S. Ct. 1028 (1990). But see Jami Floyd, The Administration of Psychotropic Drugs to Prisoners: State of the Law and Beyond, 78 CALIF. L. REV. 1243 (1990) (arguing that the Eighth Amendment should provide a minimum safeguard against forced medication where a patient is competent and poses no emergency threat to herself or to others).

16

[see O’Connell article]

The U.S. Supreme Court has yet clearly to state whether the use of torture itself is unconstitutional, not to mention whether statements obtained therefrom can violate a suspect’s due process rights absent a criminal prosecution, particularly in a ticking-bomb scenario.54 Torture Warrants Some scholars have nevertheless advocated various procedures by which the government could constitutionally handle such situations. Professor Dershowitz suggests judicial supervision of interrogations through the use of a “torture warrant,” whereby judicial approval for the use of torture must be sought and obtained before any such coercive interrogation takes place.55 The purpose of requiring judicial supervision is both to assure accountability and judicial neutrality, and to ensure that the confrontation with a choice of evils is conducted in an open way.”56 Essentially a torture warrant would provide accountability and transparency; whereas now the use of torture happens, perhaps more often than not, with no restraints and under the radar of a society with a hear- no-evil, see-no-evil mentality in our post-September 11th world.57

But torture warrants serve to legitimize a practice that all want to see ended or minimized.58 There are pragmatic considerations as well. While the judiciary is supposed to be non-political, many judges would be hard put to overcome the social pressure to sign a torture warrant? There are significant other questions as well. Can a judge with the responsibility of having a torture warrant before him honestly trust all the information supplied?59 How long would the government have to wait for such a torture warrant? How could a politically-correct standard be articulated?

The Necessity Defense Perhaps the best way legally to justify the use of torture in a ticking-bomb case is the “necessity defense” – which is essentially a choice between two evils, but one that must be countenanced.60

54 See, e.g. Chavez v. Martinez, 583 U.S. 760 (2003) (The Supreme Court remanded a case for the trial court to determine whether brutality in thise case rose to a level where it “shocks the conscience,” thereby implicating the due process rights of the individual even without a prosecution). 55 Dershowitz, supra note at . 56 Id. at 278. 57 Id. Raviv goes further: “The way we can distinguish ourselves from he brutal methods of totalitarian regimes is by being absolutely forthright when we find it necessary to torture a suspect. The regimes in Tehran, Damascus, and Pyongyang can never be honest about the torture they commit because the reasons for the torture are so utterly unjustified.” Raviv, supra note at 153. Whether this means that torture is acceptable so long as we can justify our reasons for it is a question for another day. 58 Id. 59 See e.g., Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. COLO. L. REV. 1037, 1059 (1996). 60 The necessity defense has also has become a part of the truth/fiction world in “24.” One of the co-creators of the show, a lawyer, believes the use of torture in certain circumstances can be justified under the Constitution. “The

17

Such a defense in a ticking-bomb case properly considers actions of officials after the act – torture – rather than before, which is what a torture warrant contemplates.61 If prosecutors are told of torture, and they deem the case worthy of prosecution, a full-blown trial will take place to determine whether or not the actor who tortured the suspect was justified in doing so.62 Generally, in order to succeed with a necessity defense, the torturer would need to show that (1) he acted to prevent a significant and immediate harm; (2) there was no reasonable or adequate legal alternative; and (3) the injury caused was not disproportionate to the harm avoided.”63 >[doesn’t this encourage torturer to inflict pain to point of gaining something “valuable” enough to meet this regulation even if it turns out not to be true? i.e., if it’s becoming apparent that suspect isn’t giving up anything ? . . . ] The necessity defense properly puts the acts of the torturer within the purview of the jury.

* As noted earlier, fighting terrorism according to accepted legal codes requires a definition of terms, but there is no precise terminology acceptable to all. A terrorist may be defined as someone seeking to achieve a political goal by use of violent means. Under the Geneva Conventions, however, a terrorist is neither an “enemy combatant” nor a “civilian” – and thus is not entitled to the protections afforded either. Captured terrorists, therefore, need not be treated as prisoners of war, and terrorist acts can (and often must) be met with responses that are not always governed by established international protocols.

Use of Torture in Ticking-Bomb Scenarios The use of torture in ticking-bomb scenarios had been an issue long before the attacks against the United States on September 11, 2001 so harshly demonstrated that terrorism had become a global struggle between democracy and its enemies. It is useful to compare the current approach of the United States in its fight against terror with that of Israel, which for practically its entire existence as a state has been faced with the persistent dilemma of having to strike the correct balance between the preservation of human rights and the need for national security. That balance is one based on reasonableness, where Israeli courts usually defer to the judgment of military commanders. The criteria for the latter’s strategic and tactical decisions are (a) the gravity of the circumstances presented by terrorists; (b) legislative restrictions on and latitude given to commanders faced with exercising their judgment; and (c) the impropriety of judicial intervention.64

Throughout its brief history Israel has had to confront the challenge of foiling terrorist attacks before they occur. Torture being viewed as a last resort, the various other methods tried by Israel to thwart terrorism have met with

Doctrine of Necessity says you can occasionally break the law to prevent greater harm. I think that could supersede the Convention Against Torture.” (Mayer, supra note 1 at 72, quoting Bob Cochran). 61 Raviv, supra note 22. [Israeli case?] 62 Id. at 180. 63 Laura Dietz et al, 21 Am Jur 2d Criminal Law § 158 (Defense of Necessity) (2006)(citations omitted). 64 [source?]

18

varying success. Among the alternatives to coercive interrogations that have been tried by Israel have been the demolition of terrorists’ houses; the imposition of curfews; the utilization of blockades, encirclements, and checkpoints; and the declaration of specified territory as closed military areas; and administrative detentions. Israel’s use of each of these measures has been criticized by various international states and media – with the United States the most notable exception. Nevertheless, Israel’s actions have withstood challenges that they have violated international law.65

In dealing with terrorists, however, there are few peaceful alternatives. Under international law, if there is a high degree of certainty that identifies potential attackers and that an attack is imminent, pre-emptive actions – even crossing borders to carry them out – are warranted. In every instance, the attack should be proportionate to the circumstances justifying it, and peaceful alternatives should be explored first.66

Demolitions

The origin of the practice of demolishing terrorists’ homes – variously justified as a means of punishment or deterrence – can be traced to the British occupation of Palestine during the first half of the Twentieth Century. Critics of such military action argue that it violates international law prohibiting collective punishment, the seizure of private property, and the right of due process – each contradicting the humanitarian goal of international law. Israel justifies the exercise of demolition powers as a military necessity, although Israeli courts have mandated some minimal due process procedures on commanders ordering demolitions.67

The courts apply a proportionality test to determine whether commanders have been reasonable. They consider the gravity of the acts of which the terrorist is suspected of having committed, the degree of participation of other members of his household, the likelihood that demolition will deter other inhabitants of the house, and whether such a deterrent effect could be achieved by measures other than demolition.68

Curfews

The difficulty with curfews is that they often interfere with the rights of civilians more than those of terrorists. The courts have limited the exercise of a commander’s discretion to when he is convinced that the imposition of a curfew is essential for the promotion of one of the goals he’s charged with achieving, and for which there appears to be no less harsh alternative. Curfews are justified to facilitate the location and capture of terrorists, and to pre-empt or contain outbreaks of rioting or other violence.

65 [source?] � Emanuel Gross, Thwarting Terrorism By Attacking the Perpetrators or Their Commanders as an Act of Self-Defense: Human Rights Versus the State’s Duty to Protect Its Citizens, 15 TEMP. INT’L & COMP. L.J. 195 (2001). � Some concern has been expressed with the low standard of proof required to demonstrate necessity. See Emanuel Gross, Democracy’s Struggle Against Terrorism: The Powers of Military Commanders to Decide Upon the Demolition of Houses, the Imposition of Curfews, Blockades, Encirclements and the Declaration of an Area as a Closed Military Area, 30 GA. J. INT’L & COMP. L. 165 (2002). � See Nazal v. Commander, 48(5) P.D. 338, 343 per Mat (2)(Hebrew).

19

However, in Israel, curfews can be used only as preventive measures, not as punitive ones. In order to comply with basic principles of human rights, they must be either of short in duration or occasionally lifted so that essential goods can be replenished and those who are ill treated.69

Barricades

When intelligence sources give rise to credible threats of terrorist activity, there is often no feasible alternative for a military commander except to barricade the suspected area from where a terrorist may enter or exit. Israeli courts have viewed these measures almost exclusively as a means of preventing suspected terrorist acts. Petitioners who have argued that the barricades serve as a form of collective punishment, because they cause starvation and endanger their health, have failed to prove such claims in court. When examined under both Israeli constitutional law and international law, these military measures can be fully justified – particularly in view of the fact that judicial review is readily available.70

Administrative Detentions

In April of 2000, the Israeli Supreme Court held that the state may not hold suspected terrorists by way of administrative detention as a means to obtain the release of an Israeli prisoner held by Lebanese terrorists organizations. The Court held that a detention pursuant to these kinds of motives violated Israel’s Administrative Detention Law.71

In Israel, the protections afforded to administrative detainees can be viewed as above and beyond what either the U.S. or Britain have offered under their administrative detentions. Before 9/11 the U.S. used them to hold those who had attempted illegally to enter the country. Moreover, they are applied arbitrarily: the federal circuits have held that no constitutional protections are afforded administrative detainees.

Common Methods of Israeli Interrogation

In Israel, common interrogation methods have included forcing the suspect to stand or sit for prolonged periods in uncomfortable sitting positions, tight hand- or ankle-cuffing, loud noise, sleep-deprivation, hooding, cold rooms, and violent shaking.72 As might be expected, such tactics have met with differing reactions: the U.N. Committee against Torture and its Special Rapporteur, for example, determined that these methods amounted to torture, but an

� See Israeli-Palestinian Doctors Society v. Minister of Defense, 45(2) P.S. 832, 836 (Hebrew). � Emanuel Gross, Democracy's Struggle Against Terrorism: The Powers of Military Commanders to Decide Upon the Demolition of Houses, the Imposition of Curfews, Blockades, Encirclements and the Declaration of an Area as a Closed MilitaryArea, 30 GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 165 at 218-26. � Amnon [?] v. Minster of Defense, 54(1) P.D. 721, 743 (Hebrew). See also Emanuel Gross, Human Rights, Terrorism and the Problem of Administrative Detention in Israel: Does Democracy Have the Right to Hold Terrorists as Bargaining Chips?, 18 ARIZ. J. INT’L & COMP. LAW 721 (2001). 72 JOHN T. PARRY, ESCALATION AND NECESSITY: DEFINING TORTURE AT HOME AND ABROAD, pp. 148-149, found in TORTURE, A COLLECTION, edited by Sanford Levinson, Oxford University Press, 2004.

20

Israeli investigatory commission concluded they were legally authorized by the necessity defense.73 The Supreme Court of Israel, defining torture as being physical abuse and discomfort, condemned and eventually prohibited the use of relatively moderate forms of physical coercion.74 In 2001, the Court found that certain means of interrogating terrorists, even though they entailed only moderate physical force or non-violent psychological pressure, infringed on human dignity and violated international law.75 Significantly, however, the Court never held such acts were unauthorized by Israeli or international law – suggesting instead that a justification defense could be acceptable in certain situations.76 The use of torture to extract information (as opposed to instill fear or to deter future acts of terror) has long been a matter of controversy, especially in ticking time-bomb scenarios.77

In Israel, torture has been held justified only where it is certain that the suspect holds information that can enable the state to thwart an attack and prevent loss of life. If it is uncertain exactly what information the suspect holds, or it is known that he possesses little helpful information, torture is not permitted.78 But the Supreme Court of Israel has also held various types of physical interrogation to be consistent with international law, such as sleep deprivation, forced showering in cold water, standing in the prison yard for hours in between interrogations, and threats that his family would be detained:

73 Id. 74 Public Comm. Against Torture in Israel v. The State of Israel, H.C.5100/94 (1999). The Supreme Court of Israel specifically proscribed shaking, sleep deprivation, and placing the of detainee in a frog crouch position for long periods of time. � H.C. 5100/94 The Public Committee Against Torture v. Israel (not yet published) available at www.court.gov.il/mishpat/html.en/verdict/judgment.rtf (last visited Feb. 27, 2001) 76 Id. � See Daniel Statman, The Question of Absolute Morality Regarding the Prohibition on Torture, 4 Mishpat U-Mimshal [Law& Gov’t in Isr. ] 161, 163 (1997). See also Emanuel Gross, Legal Aspects of Tackling Terrorism: The Balance Between the Right of A Democracy to Defend Itself and the Protection of Human Rights, 6 UCLA J. INT’L L. & FOR. AFF. 89 (2001). � Torture may be justified even against innocent people in certain circumstances, such as against a member of the suspect’s family if he is about to die or can withstand the torture.

21

A person will not bear criminal liability for committing any act immediately necessary for the purpose of saving the life, liberty, body or property, of either himself or his fellow person, from substantial danger of serious harm, imminent from the particular state of things, at the requisite timing, and absent alternative means for avoiding the harm.79

� The Penal Law, 1977, S.H. 34 (at the time the Landau Report was issued, this was § 22 of the Penal Law, which had already been amended that year). See also Nafsu v. Military Prosecutor General 41(2) P.D. 631. Lieutenant Nafsu was convicted of treason and espionage on the basis of his confession during the course of a GSS interrogation. He contended that this confession was extracted from him by torture including sleep deprivation, forced showering in cold water, standing in the prison yard for hours in between interrogations, and threats that his family would be detained. The GSS did not keep the records of his interrogations and there was thus no opportunity to examine them. According to the testimony of the interrogators during the first trial, Nafsu was not subjected to the torture alleged and therefore his confession was admitted as having been given freely and voluntarily. Afterwards, when it was discovered that he had indeed been subjected to torturous interrogation methods, the Court held that his conviction on the basis of his confession lacked legal foundation. No comment was made regarding the illegality of the interrogators’ conduct.

22

* In the United States, the Comprehensive Terrorism Prevention Act establishes guidelines for interrogation and recognizes that suspects are entitled to specific basic human rights and constitutional protections.80 Some commentators have argued for torture warrants, to be issued by courts of law, as a means both to limit the practice and to make it part of the public record.81

Before 2001, few Americans ever envisioned a September 11th. Now, however, almost all realize that such a terrorist act could well happen again, and perhaps on a much more destructive scale. Not long after 9/11, government officials began discussing how to handle the ticking-bomb situation, in which a plan has been put into action or an actual device deployed and the police have in custody a suspect who may have the information necessary to prevent or minimize death and violence on a large scale, and related questions.82 The attacks on the World Trade Center in New York and the Pentagon in Washington, D.C. were certainly planned long in advance and with the aid of many co-conspirators: if similar actions were planned again, and the government held a suspect with possible knowledge its taking place, could he or she be subjected to physical coercion in order to obtain relevant information?

� IV. Investigative Techniques

A. When conducting investigations under these guidelines the FBI may use any lawful investigative technique. Before employing a technique, the FBI should consider whether the information could be obtained in a timely and effective way by less intrusive means. Some of the factors to be considered in judging intrusiveness are adverse consequences to an individual's privacy interests and avoidable damage to his reputation. Whether a highly intrusive technique should be used depends on the seriousness of the crime and the strength of the information indicating the existence of the crime. It is recognized that choice of technique is a matter of judgment.

B. All requirements for use of a technique set by statute, Department regulations and policies, and Attorney General Guidelines must be complied with. . . .

See THE ATTORNEY GENERAL'S GUIDELINES ON GENERAL CRIMES, RACKETEERING ENTERPRISE AND DOMESTIC SECURITY/TERRORISM INVESTIGATIONS http://www.fas.org/irp/agency/doj/fbi/generalcrimea.htm#general.

81 Prof. Dershowitz is the leading advocate of this procedure. See supra note and accompanying text. See also Barry Gewen, Thinking the Unthinkable, NEW YORK TIMES, September 15, 2002 at section 7, page 12. 82 See ALAN M. DERSHOWITZ, WHY TERRORISM WORKS: UNDERSTANDING THE THREAT, RESPONDING TO THE CHALLENGE 140 (2002). See also Walter Pincus, Silence of 4 Terror Probe Suspects Poses Dilemma for FBI, WASHINGTON POST, Oct. 21, 2001 at A6 (“FBI and Justice Department investigators are increasingly frustrated by the silence of jailed suspected associates of Bin Laden’s al Queda’s network, and some are beginning to…say that traditional civil liberties may have to be cast aside if they are to extract information about the September 11 attacks and terrorist plans.”)

23

* Although for the United Nations torture is regarded only in terms of physical abuse,83 elsewhere it has been more broadly defined to include placing a suspect in mild physical discomfort with psychological trauma, such as using excessively strong lighting in a cell, or the playing of loud rock music.84

At least three major international agreements – the United Nations Convention Against Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment,85 Article 5 of the Universal Declaration of Human Rights,86 and Article 7 of the International Covenant on Civil and Political Rights87 – outlaw the use of torture in any form. Many countries, including the United States, are signatories to these conventions.88 It is of course a sad irony that a number of the nations who participate in agreements banning torture are themselves more abusive than those which have yet to sign on.89 In a post-9/11 environment, even the United States seeks to circumvent the accords by sending suspects elsewhere to face interrogation, and often torture, at the hands of others.90 * Even in the face of international agreements reflecting a general disapproval of coercive interrogations, is torture

83 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res 39/46, 39 U.N. GAOR Supp. No. 51 at 197, U.N. Doc a/39/51 (1984). 84 Public Comm. Against Torture v. Israel, 38 Int’l. Legal Materials at 1488. (Israel’s prohibition includes the playing of “powerfully loud music.”) 85 G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1984). 86 G.A. Res. 217 A, U.N. GAOR, 3d Sess., at 71, U.N. Doc. A/810 (1948) (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”) 87 S. Exec. Doc. E., 95-2, at 23 (1978); 999 U.N.T.S. 171, 175 (1966) (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”) 88 In 1994 the United States Senate ratified the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 89 See Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L. J. 1935, 1979 (2002). 90 See., e.g., Duncan Campbell, September 11: Six Months on: U.S. Sends Suspects to Face Torture, THE GUARDIAN (London), Mar. 12, 2002, at p. 4. The Abu Ghraib experience may have served to illustrate the United States’ own practices (see, e.g., Seymour M. Hersh, Chain of Command: The Road from 9/11 to Abu Ghraib [2004]), but that incident was likely more isolated than those of the less transparent and more brutal regimes that extract information from “rendered” prisoners at the behest of the U.S. See Rajiv Chandrasekaran and Peter Finn, U.S. Behind Secret Transfer of Terror Suspects, WASHINGTON POST, Mar. 11, 2002.

24

appropriate in a ticking-bomb scenario? It has often been suggested that rough interrogation techniques rarely work, producing little more than false confessions.91 However, there is data to support the proposition that the use of torture can yield valuable information.92 In 1995, for example, the Philippine government tortured a suspect who eventually disclosed truthful information about schemes that included killing the pope, flying an explosives-laden plane into CIA headquarters, and destroying up to eleven commercial airplanes over the Pacific Ocean. For over two months, Philippine agents tortured the prisoner, beating him “with a chair and a long piece of wood, forced water into his mouth, and crushed lighted cigarettes into his private parts” – and were able to extract information that prevented the realization of massive terrorist attacks.93 Inflicting mental pain on people in order to obtain information from them is not a new technique use by other countries. Jordan threatened terrorist Abu Nidal’s family in order to get him to talk; in similar fashion, the Philippines convinced a terrorist suspect that they were going to turn him into the Israeli authorities and as a result, they helped solve the case of the 1993 World Trade Center bombings and a plot to kill the pope. And Israel, until 1999, had used violent shaking, which entailed an odorous bag being held over a suspect’s head in a dark room and then psychologically tormenting the individual.94 In early 2007, Israel reported that it had thwarted a major suicide bombing attack at the central bus station in Tel Aviv by capturing the perpetrator before any damage was done. It is highly unlikely that the valuable information provided by the suspect, which included the location of the un-detonated bomb and the name of the attacker’s sponsor, would have been forthcoming without the use of coercive interrogation.

91 One former interrogator said, “I never saw pain produce intelligence. I worked with someone who used water-boarding [an interrogation method involving repeated near-drowning of suspect]. I used sever hypothermia, dogs, and sleep deprivation. I saw suspects after soldiers had gone into their homes and broken their bones, or made them sit on a Humvee’s hot exhaust pipes until they got third-degree burns. Nothing happened. [Some people] gave confessions. But they just told us what we already knew. It never opened up a stream of new information. . . .[If anything] physical pain can strengthen the resolve to clam up.” Mayer, supra note 1 at 77, quoting Tony Lagouranis, a former Army interrogator Another, estimating that he has conducted some twelve thousand interrogations, says that torture is not an effective technique: “These are very determined people, and they won’t turn just because you pull a fingernail out.” (Id., quoting Joe Navarro) Still another says that would-be martyrs would almost welcome torture, and that a ticking time bomb would make a suspect only more unwilling to talk. “They know if they can simply hold out several hours, all the more glory – the ticking bomb will go off!” (Id., quoting Finnegan). See also Mischa Gaus, Interrogations Behind Barbed Wire, IN THESE TIMES, Institute for Public Affairs, Feb. 2007 at p. 26. See also Editorial, Is Torture Ever Justified?, THE ECONOMIST, Jan. 11, 2003, at p. 11. 92 See Arvinder Kaur, The Truth Drug, THE PRESS TRUST OF INDIA, Jan. 13, 2007. 93 Matthew Brzezinski, Bust and Boom: Six Years Before the September 11 Attacks, Philippine Police Took Down an al Queda Cell That Had Been Plotting, Among Other Things, to Fly Explosives-Laden Planes into the Pentagon—and Possibly Some Skyscrapers, WASHINGTON POST, Dec. 30, 2001, at p.W09. 94 Jonathan Adler, Time to Think About Torture, NEWSWEEK, Nov. 5, 2001 at p.45.

25

III. Truth Serum and Ticking Bombs

Truth is only developed in the hour of need; time, and not man, discovers it.

– Louis de Bonald 95

Perhaps not surprisingly, the three leading countries to test the limits of coercive means of interrogation in order to extract information from such individuals are Israel, the United Kingdom, and the United States – all democratic nations that have been victimized by terrorism. Making your way in the world today takes everything you’ve got.96 “Modern warfare against treacherous enemies is a dirty business,” says Vice-President Richard Cheney. “We don’t like it – we didn’t want to get in it – but we are in it and we’re going to fight it with everything we’ve got.”97 Says “24”’s Jack Bauer: “I need to use every advantage I’ve got.”98

What have we “got” with which to fight the war on terror? Although there is little data about the modern-day use of drugs in interrogations, it is quite unlikely that any effective truth serum would be publicly disclosed.99 In 2006, after terrorist bomb blasts went off in Mumbai, India, the police commissioner said that his investigation relied heavily on scientific procedures like narcoanalysis tests.100

Distinguishing Use of Truth Serum from Torture Various commentators discussed in this essay oppose the use of truth serum on the grounds that it amounts to

95 French philosopher, 1754-1840. 96 Theme song from “Cheers,” a popular television sitcom in the 1990's. 97 Quoting Franklin D. Roosevelt, in Remarks at the Veterans of Foreign Wars National Convention, Federal Department and Agency Documents, CONGRESSIONAL QUARTERLY, August 28, 2006. Not long after September 11th, Cheney alluded vaguely to the idea that the nation needed to begin working through the “dark side” in countering terrorism. Mayer, supra note 1 at 67. Cf. 98 Mayer, supra note 1 at 68. 99 When the West Point delegation visited the produceers of “24,” the show’s lead writer excitedly asked if they knew of any effective truth serums. Mayer, supra note 1 at 72. 100 See Kaur, supra note . On “24,” a member of the Counter-Terrorism Unit carries a briefcase filled with elephantine hypodermic needles. “In recent years, we’ve resorted a lot to [a] pharmacological sort of thing. . . .He’ll inject chemicals that cause horrible pain that can knock down your defenses – a sort of sodium pentothal plus.” Mayer, supra note 1 at 68 (quoting Howard Gordon, the show’s lead writer).

26

torture and is therefore forbidden by international law and conventions.101 Others consider torture to be justified in certain situations, including the ticking-bomb scenario.102 [elaborate on objections to Keller / Strauss / O’Connell (all opposed to truth serum); and distinguish Bagaric/Clarke/Dershowitz (i.e., t.s. should not be considered torture)] Very few commentators have come clearly to conclude that the use of truth serum in ticking-bomb interrogations is neither forbidden by international law or conventions – nor should be considered torture.103

[distinguish Odeshoo (KL: good analysis of question, but conclusions too circumspect)]

Using Truth Serum in Ticking-Bomb Situations As we have seen, international law defines and regulates torture under a number of treaties.104 The United Nations General Assembly adopted the international Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by consensus (CAT) in 1984.105 As noted earlier, C.A.T. defines torture as any act which inflicts “severe pain or suffering, whether physical or mental,” in order to obtain information or a confession, punishment, or intimidation. It does not include pain or suffering incidental to lawful sanctions.106

Article 2 of the C.A.T. appears to be unequivocal in its prohibition of torture: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”107 But when the U.S. ratified the C.A.T in 1994, it did so with some Reservations, Understandings, and Declarations. The first reservation equates “cruel, inhuman or degrading punishment” (“C.I.D.T.”) in Article 16 of the C.A.T.

101 See Linda M. Keller, Is Truth Serum Torture, 20 AM. U. INT’L L. REV. 521 (2005) at fn 72; Strauss, supra note ; and O’Connell, supra note . 102 See Bagaric and Clarke, supra note and Dershowitz, supra note . 103 Jason Odeshoo offers a thorough analysis of the issue, but it seems to me that his conclusions are overly circumspect. See also Jason R. Odeshoo, Truth or Dare?: Terrorism and “Truth Serum” in the Post-9/11 World, 57 STAN L. REV. 209 (2004). 104 These treaties include the Geneva Conventions; the International Covenant on Civil and Political Rights; the Convention on the Prevention of Genocide; the International Convention on the Elimination of All Forms of Racial Discrimination; and the Convention on the Rights of the Child. See Linda M. Keller, Is Truth Serum Torture, 20 AM. U. INT’L L. REV. 521 (2005) at fn 72. 105 Keller, supra note at 536, note 67. 106 C.A.T., supra note . 107 Id.

27

with the U.S. Constitution’s ban on “cruel and inhuman punishment” in the Eighth Amendment.108 That prohibition, however, applies only after a person has been convicted of a crime.109 The types of conduct found by the courts to violate the Eighth Amendment, generally involving infliction of various forms of pain and suffering, provide no clear indication as to how the administration of truth serum – which causes little physical pain beyond that of a pinprick – would be regarded. In Hudson v. McMillan,110 the Court held that beating a prisoner could be considered cruel and unusual punishment even if it caused little more than bruising. Relying on Wilkerson v. Utah,111 which found that punishment by torture in all cases amounted to unnecessary cruelty forbidden by the Eighth Amendment, it suggested that cruel and unusual punishment occurs in situations other then interrogation.112 Some observers go farther, arguing that the use of truth serum offends due-process rights guaranteed by the Fifth and Fourteenth Amendments. Under the former, information obtained from an interrogated individual violates the Amendment if (1) it was compelled; (2) it was testimonial in nature; and (3) it was incriminating. Information obtained through the use of truth serum clearly meets the first two requirements, so whether or not the use of truth serum violates the Fifth Amendment ultimately turns on whether it was incriminating. On this point, the Court has been very clear: in order to be incriminating, a statement must be used against the accused at trial.113 However, the White House’s Office of Legal Counsel declared that the Fifth Amendment’s Self-Incrimination Clause would not classify “unwarned custodial interrogation as a constitutional violation in itself.”114 Therefore, as long as the information obtained is used only for intelligence purposes, and not for a criminal conviction, there is no Fifth Amendment violation. In a ticking-bomb situation, truth serum could only be used to find out information

108 Id. 109 In Ingraham v. Wright, the Court held that the proscription was designed to protect those convicted of crimes, and does not apply to the paddling of children as a means of maintaining discipline in public schools. 430 U.S. 651 (1977). 110 503 U.S. 1 (1992). 111 99 U.S. 130 (1979). 112 503 U.S. 1 at 9 (citing Wilkerson, 99 U.S. at 136). 113 [cite?] See also Odeshoo, supra note at 209. 114 See Memorandum from Asst. U.S. Attorney General Jay Bybee, to U.S. Department of Defense General Counsel William Haynes 3 (Feb. 26, 2002), available at http://www.washingtonpost.com/wp-srv/nation/documents/022602bybee.pdf.

28

about the present exigent situation, not to pursue a criminal charge. The Court has addressed the due-process challenge presented by the Fourteenth Amendment in cases where the defendant is administered drugs involuntarily in order to render him competent to stand trial, holding that the government is permitted to undertake such action if the treatment is medically appropriate.115 It follows arguendo that an unwilling terror suspect could be injected with truth serum in order to reveal life-saving information, if such a course of action is absolutely necessary in the face of imminent potential harm. The Supreme Court has confronted a truth-serum case only once, in Townsend v. Sain.116 There, the Court found that the use of truth serum constitutes a due-process violation only when the statements obtained were admitted as evidence at trial. That rationale should be applicable to the ticking-bomb scenario, assuming as we can that those administering truth serum are attempting to prevent imminent potential harm and not accumulating evidence for trial.117 Thus it can be argued that administering truth serum may be acceptable when dealing with a terrorist who admits to planting a weapon of mass destruction in a largely populated city but refuses to say where. Due process does not exist in a vacuum, and requires consideration of any compelling government interest as well as any alternative means to secure those interests.118 In other words, police behavior that may be condemned as indecent and abhorrent to civilized society may be embraced as a necessary evil when the situation changes. While the Supreme Court has not undertaken a balancing test – weighing the government’s interest against individual liberty interests of an interrogated suspect – at least one state court has considered whether the use of extreme force is acceptable when a suspect has information vital to someone’s life.119 It is unlikely that a court would find that the pin-prick involved in the administration of truth serum would violate standards of decency where the information acquired could be potentially life-saving. Truth serum could fairly be characterized as a very low-risk medical procedure, closer to an acceptable blood-extraction than an unconstitutional stomach-pumping.120 > [see also German case about kidnapped boy?] > [see WSJ article about getting convicts healthy in order to execute them?]

115 Washington v. Harper, 494 U.S. 210 (1990). See also Odeshoo, supra note at 8. 116372 U.S. 293, 83 S. Ct. 745 (1963). 117 See Odeshoo, supra note at 8. 118 Strauss at 38. 119 Leon v. State, 410 So. 2d 201 (Fl. Ct. App. 1982), aff'd Leon v. Wainwright, 734 F2d 770 (11th Cir. 1984). The court noted that the violence was not inflicted to obtain a confession or provide other evidence to establish guilt, but by the immediate necessity to find the victim and save his life. Id. At 773 n.5. See also Strauss at 39. 120 Keller at 654.

Privacy Issues In Schmerber v. California, the Supreme Court upheld the constitutionality of a warrantless and non-consensual blood test for alcohol, saying that such a test did not violate the individual’s Fourth Amendment privacy rights.121 Although the Court later held that prisoners have a reasonable expectation that the privacy of their bodies and their minds will not be physically invaded by the state,122 it was not contemplating a ticking-bomb interrogation. The Court has assessed whether various physical invasions “shock the conscience” as interrogation techniques. In Rochin v. California, the Court determined that involuntary extraction of blood does not shock the conscience.123 In Breithaupt v. Abram, the Court also held that drawing blood from a suspected, and unconscious, drunk driver did not shock the conscience, and it was not deemed cruel or offensive if done in a hospital.124 If such an intrusion does not shock the conscience, why would the imposition of a needle-prick do so, especially in circumstances where a terrorist act might be imminent? The conclusion can readily be drawn that on a purely physical level, administering truth serum does not so shock the conscience that it would be unconstitutional under the Fifth and Fourteenth Amendments. Among the few commentators who have considered the question to date, there is disagreement as to whether the administration of truth serum constitutes a violation of an individual’s right to privacy, personal dignity, and bodily integrity. Some say categorically that it does;125 others are more circumspect.126

Though the physical pain may be minimal, critics who argue that truth serum should never be used suggest that it causes severe mental distress. For Professor Keller, “the core of a person – her own mind, her own beliefs, thoughts, judgments – is negated under the influence of an effective truth serum. Truth serum invades the mind in a profoundly disturbing way, and its absolute control over the mind and personality during the session might be compared to a physical invasion: truth serum as the equivalent to mental rape, leading to prolonged mental harm.” She argues that even the threat of truth serum could

29

121 384 U.S. 757 at 759-70 (1966). 122 Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989). 123 342 U.S. 165 (1952). 124 352 U.S. 432 (1957). 125 See, e.g., Keller, supra note at n. 22. 126 See, e.g., Odeshoo at 214.

cause severe mental harm because of “fear of the unknown.”127

Besides being highly speculative, this line of reasoning ignores the suspect’s ostensible and overriding goal of causing widespread harm and mayhem. Even if truth serum were in fact to “fundamentally alter a subject’s personality,” which may be “virtually wiped out during the session and significantly effected afterward,” its use can be justified as a necessity to prevent greater suffering. Law-enforcement officers regularly use stun guns to prevent violence to others. Here, the government’s urgent interest in life-saving information should allow intrusions into individual liberties and due-process rights. Privacy issues are also implicated under the International Covenant on Civil and Political Rights (ICCPR). Article 17 of the ICCPR states: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” While the use of truth serum might appear to contravene this prohibition, the right to privacy is not absolute. Although a number of the Article’s drafters suggested a more precise accounting of the kinds of circumstances that might justify infringement of the right, no such language was ever added. Nor has the United Nations’ Human Rights Committee further defined the privacy right. Ultimately, Article 17 places only two limitations on infringements of privacy: interference with privacy is prohibited where it is either unlawful or arbitrary.128 Administration of truth serum in a ticking-bomb case need not be considered as either unlawful nor arbitrary. Put more plainly, protecting the integrity or health of an individual’s personality should not be deemed more important than saving the lives of others.

Ethics and Humanitarian Principles Veritas vos liberabit.

(The truth will set you free.)129

When considering the ethical issues regarding the use of truth serum, the baseline questions remain the same: Can such a method of interrogation be considered torture? If so, can it be justified by either utilitarian or necessity theories? As noted throughout, the definition of torture used in international law to date is at best ambiguous. Although it is mentioned in virtually all covenants, declarations, and treaties that address human rights, there are no specific actions listed as prohibited.

30

127 Keller at 24-25. 128 Odeshoo, supra note at 224. 129 Motto of the Johns Hopkins University.

But under such traditional ways of thinking about what constitutes torture, could the mere injection of a truth-serum drug qualify?130 Mental suffering is likewise countenanced in both the I.C.C.P.R. and the C.A.T.. A cogent argument can be made that the involuntary administration of truth serum is equivalent to the use a mind-altering drug upon a person.131 > [see Army Field Manual?] Utilitarianism, which posits that the results of an action should contribute to the overall good, is often invoked to rebut arguments that torture is an unpredictable and dangerous abrogation of the principles of humanity.132

Under utilitarian doctrine, subjecting suspected terrorists to injections of truth serum is a reasonable means of obtaining information to protect the greatest amount of people. Citizens expect their military forces to fight on their behalf even in losing battles where lives are at stake, in the end, the whole will benefit.133 So it is with the use of truth serum – when it is the best option in order to save the most lives. Thus William Webster, former director of the CIA and FBI, said that truth serum should be used “for the protection of the country.”134 It is “a less intrusive means of learning something that you badly need to know.”135

In ticking-bomb cases, where there is not enough time to investigate every lead, quick and decisive action must be taken if any useful information is to be obtained. (One might legitimately wonder how many lives could have been saved the morning of September 11, 2001 if suspected terrorists had been caught beforehand and administered truth serum.)

31

130 Odeshoo, supra note at . 131 Keller, supra note at . 132 John T. Parry and Welsh S. White, Interrogating Suspected Terrorists: Should Torture Be an Option?, 63 U. PITT. L. REV. 743 (2002). 133 Mirko Bagaric and Julie Clarke, Not Enough Official Torture in the World? The Circumstances in which Torture is Morally Justifiable, 39 U.S.F. L. REV. 581 (2005) 134 See Ann Tyson, U.S. Task: Get Inside Head of Captured bin Laden Aide, CHRISTIAN SCIENCE MONITOR, Apr. 4, 2002. 135 Stewart M. Powell, Truth Serum Urged for Detainees: Webster Says Need for Data Justifies Use on Al-Qaida Fighers, MILWAUKEE JOURNAL SENTINEL, April 28, 2002 at p.16A .

Even some critics of the use of truth serum concede that its use could be sanctioned under a defense of necessity.136 The premise is (and should be) that the end – preserving life at virtually all cost – justifies the means.

Conclusion Whether or not a civilized society can or should allow torture is a matter that will continued to be debated for years to come. It is clear that our post-9/11 world presents us with critical problems, such as whether we should torture a suspect in a ticking-bomb scenario. Though both sides of legal and moral arguments have merit, in such a situation the government must choose the lesser of two evils for the protection of the community it serves. It must not engage in torture with impunity, but only when absolutely necessary. It must not be shackled by moral concerns. Given only the terrible choice of permitting the deaths of many people or torturing an individual or group of suspects who can possibly prevent those murders, the government must do what is necessary. The choice is even clearer, and perhaps not so terrible, when the same end can be accomplished with administration of a drug.

32 136 Parry and White, supra note .

Proposal 6

ILHYUNG LEE University of Missouri

Pyung-Deung: Korean Perception(s) of Equality

Korea has been a constitutional democracy for barely twenty years, beginning from the momentous reforms in 1987, after decades of authoritarian rule. In recent years, commentators have noted that notions of “freedom,” “equality,” “democracy,” and “justice” are relatively new concepts to average Koreans. The Korean perception of equality and equality rights is the subject of this article.

Two competing forces shape Korean perceptions of equality and legal rights. First, Korea is a society with a long social history, with deeply embedded Confucian norms that shape and guide contemporary attitudes and practices. Second, in almost diametrically opposite fashion, Korea has undergone a radical social transformation in recent years, resulting in changing norms. Both of these realities play a role regarding contemporary perception of equality. The article begins with a discussion of the Korean constitutional development, the Korean equivalent of the Equal Protection Clause, and the jurisdiction’s approach to equal protection analysis. This is followed by a description of Korean societal and cultural attitudes regarding equality and conflict resolution. With this foundation in place, the article takes on a more directed focus. Toward a further understanding of how Koreans perceive equality and equality rights, this article reports the results of a survey of Korean subjects on their reactions to a hypothetical that suggests disparate treatment by a commercial carrier. In short, the survey assesses whether participants view the situation as one evidencing unequal and discriminatory treatment, and what actions they would take in response. The results shed more light on the subject of contemporary notions of legal equality in Korea.

PROPOSAL 13

John Linarelli†

University of La Verne College of Law

Might Does Not Make Right: Thinking Through Stromseth, Wippman and Brooks Wittgenstein said that philosophy, or at least his way of doing it, provides us with “observations which no one has doubted, but which have escaped remark only because they are always before our eyes.”1 If we entertain the plausible assumption, grounded in the claims of the neoconservatives, that at least part of the reason for intervening in Iraq was to bring democracy and rule of law to Iraq and for it to spread eventually throughout the entire Middle East, we have to ask ourselves the question: what were we thinking?2 Of course, there may be something to the worn out adage, “hindsight is twenty-twenty,” but certainly reasonable minds should have asked the question whether it was reasonable to believe at the time that we could bring democracy to Iraq through an armed intervention. In this paper, I explore a dilemma presented by the invasion of Iraq: is it conceptually possible to bring rule of law and deliberative democracy to a country through an armed intervention of dubious legality? By “conceptually possible” I mean to locate my inquiry primarily in legal and political philosophy. My aim is to provide the philosophical argument in support of the findings of Jane Stromseth, David Wippman and Rosa Brooks in the recent and important book, Can Might Make Rights? Building the Rule of Law After Military Interventions.3 The authors of that book deal with a number of important questions that touch upon similar questions legal and political philosophers of the past century or so have dealt with in some rigor. In addition, I resurrect the teachings of what has come to be known as the “old” law and development movement of the 1960s and 1970s, a movement perhaps forgotten by many, and whose lessons policy makers ignore at their peril. To be more precise in stating the question, a philosophical account would try to divide the question into two questions. First, a question that seeks a causal explanation: † Professor of Law and ULV Academy Scholar, University of La Verne College of Law, Ontario California, john_linarelli@ulv.edu. 1 LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS I, ¶ 415 (G.E.M. Anscombe trans. Blackwell 1953). I owe this quote to HANNA FENICHEL PITKIN, WITTGENSTEIN AND JUSTICE 1 (University of California Press 1972). 2 Of course, the official reason the Bush Administration offered for the intervention was the presence of weapons of mass destruction, which resulted in violations of the ceasefire conditions set forth in multiple United Nations Security Council (UNSC) Resolutions, but which in particular violated UNSC Resolution 1441. See UNSC Resolution 1441, Nov. 8, 2002; Draft UNSC Resolution authorizing force, proposed by Spain, the UK and the US, Mar. 7, 2003, not passed; Joint Declaration of Russia, Germany and France opposing UN resolution authorizing force; Address by Dominique de Villepin, French Minister of Foreign Affairs, before the UN Security Council; Lori Fisler Damrosch et al., Agora: Future Implications of the Iraq Conflict, 97 AM. J. INTL L. 553 (1997). 3 JANE STROMSETH, DAVID WIPPMAN & ROSA BROOKS, CAN MIGHT MAKE RIGHTS? BUILDING THE RULE OF LAW AFTER MILITARY INTERVENTIONS (Cambridge University Press 2006).

can an armed intervention by one country or coalition of country against another, produce the conditions for deliberative democracy, including a legal system within it? This is a question that seeks theoretical reasons to believe one way or the other. Second, a question that seeks a normative judgment: should we have used an armed intervention to attempt to produce the conditions for deliberative democracy and a legal system? This is a question that seeks practical reasons to act one way or the other. The first question asks what we ought to believe and the second question asks what we ought to do. These questions do not neatly separate, but it is important to try to keep them separate to seek clarity in our account. This paper explores four sets of questions, all of which concern the notion of normativity in the law and how we cannot lose our grasp of normativity without great sacrifice to the integrity of the law. These three sets of questions are the subject of Parts III through V of this paper. But first, we must set forth a foundation for the main analysis. Part I provides an institutional setting for the focus of this paper: what can happen when an occupying power tries to bring rule of law and deliberative democracy to an occupied country. Part I goes through the problems encountered in Iraq in doing democracy building. Realizing readers will come to this paper from different disciplines. Part II provides a brief discussion of what it means to say the focus of the questions is on normativity. This section is necessary because much of the current scholarship on international law makes a false distinction between the “doctrinal” and the “instrumental.” This distinction, as rational choice theorists often make it, rests on a mistake. The mistake is about what so-called doctrinalists are doing when they discuss and apply international law. Part III deals with the question whether an armed intervention, lawful under the prevailing international law or not, can be successful in bringing about the rule of law and deliberative democracy in the country in which the intervention occurs. Part III brings the teachings of analytical jurisprudence and philosophical accounts of associative obligation and shared agency to bear on actual rule of law projects. These accounts have a very real significance to what is happening “on the ground” in Iraq and globally. A significant movement in philosophy is towards what is known as “applied” philosophy. Much of the “application” work is in bringing the ideas of moral philosophy and philosophical ethics to bear on the law, ignoring or suspending the question whether private moral accounts are justifiably extended to the public legal sphere. No one has thought that analytical jurisprudence has any place in this applied movement. But one of the main theses of this article is that it does, and that indeed it is highly relevant. Events in the “real world” show us that the analytical legal philosophers have elucidated the essential features of the law, and that our policies would be better if we took theses theories into account. Substantial confusion persists among current policy makers and their lawyers about the concept of legal obligation. This confusion permeates much of what we get from the Bush Administration as policy about the Iraq intervention and the role of international law in the world. To anticipate the question of skeptics: are these philosophical theories

“true?” My answer: if the policy makers and lawyers who planned the armed intervention in Iraq with the idea in mind of bringing democracy and rule of law to Iraq had a measure of sophistication about legal and political philosophy, would they have been as sanguine at the prospects of bringing law to Iraq through armed intervention? Stromseth, Wippman and Brooks explain that their book “is less concerned with political and legal theory than with what seems to work on the ground, and what does not. Nonetheless, when it comes to creating ‘the rule of law’ in post-intervention settings, we are convinced that understanding what does and doesn’t work requires some basic historical and theoretical insights.”4 This paper fills in the theoretical insights. Part IV advises that some of these questions have already been investigated, though in a different discipline, that of the law and society movement. Part IV examines the teachings of the so-called old law and development movement, how they can inform what goes on in contemporary law reform, and how their teachings complement those of legal philosophy. We will discover that a prior generation of law and development scholars has covered much ground, though policy makers seem to have ignored their teachings. Part V deals with the question what should be the content of international law norms on armed intervention. Substantial disagreement persists on what the content of norms of non-intervention should come to be, and what role the UN Security Council should take in enforcing those norms. Part V explains that legal rules on intervention should take the conditions for imposing deliberative democracy and rule of law into account. In addition, regardless of the change in the content of the legal norms on intervention, the way the new norms are brought about must respect the validity conditions of international law. This argument is but an application of the concepts of legal normativity and obligation in the international sphere, a continuation of the above discussion.

4 Stromseth, Wippman & Brooks, supra note 3, at 10.

PROPOSAL 33

Margaret McGuinness Visiting Associate Professor (Spring 2007)

University of Georgia School of Law

Mapping Norm Portals Précis:

One way to understand the ways in which disaggregated international actors behave, and the degree to

which their behavior can be characterized as representative of something akin to an international legal order, is to identify the mechanisms and spaces in which interaction between two or more actors and between actors and norms occurs. This is especially important in the area of human rights. Precision and fine-grained empirical examinations are needed to supplement the broad theories of international human rights norm integration posited at one extreme by realist/rational choice rejections of the efficacy of the human rights system and at the other by compliance theory’s reliance on the “normative pull” of treaties to bring state practice in line with international standards. This project is an attempt to map one means through which international human rights norms move, horizontally, between national legal systems and between international and domestic legal systems.

In Medellin, Norm Portals, and the Horizontal Integration of International Human Rights,1 I identified a

typology of international human rights integration: Formal-Vertical, Informal-Vertical, Formal-Horizontal, and Informal-Horizontal. Within that typology, I further identified a particular kind of formal horizontal mechanism as a norm portal -- “a formal gateway permitting the entry of an international human rights norm into the legal system of a state that has persistently rejected the norm.” My current project follows on this introduction of the concept of norm portals to present a comprehensive explanatory and predictive account of norm portals across the international human rights system.

Norm portals offer a challenge to the notion that norms and law flow from rational purposive acts of actors within the international system to demonstrate that, as constructivist theory in international relations posits, norms themselves (for example, abolition of the death penalty) affect behavior. In a norm portal mechanism, a state or states formally agree to a particular normative end. That formal process includes a procedural mechanism to permit participation of actors outside the domestic legal system who, through a process of interaction and mediation, exploit the portal to introduce a different normative or purposive goal – a goal to which a state may have persistently objected. This procedural mechanism facilitates further elaboration and, ultimately, integration of the external norm in the legal system of a state that had otherwise rejected it. Norm portals are successful where they result in a shift in practice or law that moves a domestic legal closer to the international standard.

1 Margaret E. McGuinness, Medellin, Norm Portals, and the Horizontal Integration of International Human Rights, 82 NOTRE DAME L. REV. 755 ( 2006)

In the Vienna Convention on Consular Relations (VCCR) death penalty cases, for example, a formal treaty (the VCCR) was adopted to codify the prerogative of states to protect the interests of their nationals detained overseas. That formal process included a provision to require notification of states when their nationals are arrested in the United States and granted permission to states to render assistance to their nationals. In cases where foreign nationals faced the death penalty in the United States – which had remained outside international regulation of the death penalty -- the role of consular assistance was successfully exploited as a norm portal by states and NGOs working together toward a common goal of protecting foreign nationals and avoiding death sentences.

The use of norm portals is not limited to the VCCR. Extradition treaties and international refugee law are other examples of formal horizontal processes that have evolved to regulate the import and export of international human rights norms across state borders. Like the VCCR, extradition treaties and the Refugee Convention represent formal legal obligations adopted through treaty and subject to political reversal. As such, these norm portals may prove more robust and less potentially dilutive of democratic processes than the use of non-binding foreign and international legal authority in judicial opinions that has come under the criticism of anti-internationalists. The use of these portals nonetheless demonstrates that no state is an island, as it were, when it comes to the convergence of state practice around an international standard. Human rights advocates are likely to continue to seek out and exploit norm portals as a means through which to bring human rights practice of persistent objector states in line with higher (i.e., rights-expanding) external standards.

PROPOSAL 26

Hari M. Osofsky University of Oregon School of Law

The Geography of Climate Change Litigation Part II

Narratives of Nation-States and Third Space

Hari M. Osofsky*

ABSTRACT: This article aims to interweave two current crises for law and policy in the United States: (1) the extent of our commitment to international law and (2) the approach we will take to regulating global climate change. It argues that achieving progress on both fronts requires interrogating the geographic assumptions in major conceptual approaches to international legal theory and the implications of those assumptions for their narratives of climate change litigation. To that end, it develops a taxonomy of international legal theory based on how those approaches view nation-state spaces—Westphalian, modified Westphalian, pluralist, and critical—and considers how a law and geography narrative of climate change litigation might interact each of these accounts. Building from these narratives, it considers what would be required for a theory of international law to address simultaneously the need for and the legitimate critiques of nation-state spaces in transnational regulatory governance and the implications of such a “thirdspace” for global climate change.

I. INTRODUCTION……………………………………………………....__II. GEOGRAPHIC ASSUMPTIONS ABOUT THE NATION-

STATE………………………………………………………...………………....__A. Place, Space, and Scale

.. ...……………………...........................................__ B. Narrating Local Governmental Spaces...................................................__C. Narrating Nation-State

Spaces…….........................................................__

* Assistant Professor, University of Oregon School of Law; B.A., J.D., Yale University. This piece was shaped by the thoughtful comments of colleagues during my workshop presentations at the Arizona State University Sandra Day O’Connor College of Law, Loyola Law School (New Orleans), the University of Houston Law Center, the Junior International Law Scholars Roundtable, and the University of Oregon School of Law, as well as its conference presentation at International Law Weekend–West; I am grateful for the insights and encouragement. This piece has benefited tremendously from the suggestions of Keith Aoki, Paul Berman, Caroline Forell, Ibrahim Gassama, Joshua Gitelson, Janet Levit, Lillian Aponte Miranda, Alexander Murphy, Margie Paris, Robert Tsai, Lua Kamal Yuille, Robert Verchick, and Jonathan Zasloff. I also appreciate the generous financial support from University of Oregon School of Law, and in particular, the Dean’s Advisory Council Endowment Fund, for this project.

III. A LAW AND GEOGRAPHY TAXONOMY OF INTERNATIONAL LEGAL THEORY................................................................................................__A. Traditional Westphalian Spaces

.................. ...…….……………..............................__ B. Modified Westphalian

Spaces.……….....................................................__C. Pluralist Spaces………

. ………………….…..............................................__ D. Deconstructed

Spaces…………………….……………………………...__ E. Reflections on Theorizing State Spaces….…………………………......__

IV. RE-ENVISIONING TRANSNATIONAL REGULATORY GOVERNANCE?............................................................................................…__A. Embracing Dialectical Relationships…..……..……………………. . ..__

B. "Thirdspace" Approaches to International Law and Climate Change Litigation?..…………………………………………………………........__

V. CONCLUDING REFLECTIONS…………………………………...__ I. Introduction We are at a crucial juncture in our narratives of both climate change and of international law. The recently released Fourth IPCC Assessment makes clear not only that climate change is happening, but that we have passed the point in our emissions at which prevention is possible. The questions we now face are whether we will do enough to avoid the most catastrophic scenarios and to develop our capacity to adapt to the changes that are coming.1

At the same time as the prospects for traditional international legal mechanisms meeting this challenge seem poor, the debates in the United States over the status and boundaries of international law are intense. 2 In the years since 9-11, the Bush administration has worked together with international law academics to undermine core human rights protections and restraints on the use of force in order to strengthen executive power. The push-back against these efforts has also been strong, which has led to an environment of encampment in the international law and policy community.3

1 See Intergovernmental Panel on Climate Change, Climate Change 2007: The Physical Basis, Summary for Policymakers, available at http://www.ipcc.ch/SPM2feb07.pdf. 2 See, e.g., Agora: The United States Constitution and International Law, 98 AM. J. INT’L L. 42 (2004) (providing various perspectives on the appropriateness of using international law to interpret the U.S. Constitution). 3 These dynamics were reflected in the debate over Jack Goldsmith and Eric Posner’s recent book, see JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005), which relies on game theory and rational choice theory to argue for the limites of international law. See, e.g., Paul

The discourse about these two moments of crisis, however, has tended to intertwine them in only the most superficial sense. Those fighting for a stronger commitment to international law generally recognize a refusal to take climate change seriously enough as part of the Bush Administration’s disastrous foreign policy, but have tended to focus largely on “war on terror” issues.4 The significant discussions about climate change still largely take place in focused fora of environmental experts.5

This balkanization is beginning to change, however, particularly with respect to the growing body of litigation over climate change. An ever-increasing number of suits and petitions that engage global climate change have been brought in a variety of subnational, national, and supranational fora around the world. As the U.S. Supreme Court and leading newspapers and law journals engage the issues raised by these suits, some of the most prominent voices in the battle over international law have begun to discuss their significance. For example, Eric Posner, one of the principle advocates for an expansive approach to executive power that significantly curtails rights protections, recently posted a piece on the Social Science Research Network that makes a normative argument against bringing human rights claims under the Alien Tort Claims Act based on climate change.6 At a 2007 Yale Journal of International Law symposium exploring whether a “new” New Haven School is emerging, Dean Harold Hongju Koh, one of the leading defenders of the importance of international legal obligations, led off his questions on the panel he

Schiff Berman, Book Review Essay, Seeing Beyond the Limits of International Law, 84 TEX. L. REV. 1265 (2006) (critiquing the book based on its assumptions); Oona A. Hathaway & Ariel N. Lavinbuk, Book Review, Rationalism and Revisionism in International Law, 199 HARV. L. REV. 1404 (2006) (noting its methodological contribution but critiquing its particular approach to rationalist analysis); Edward T. Swaine, Review Essay, Restoring (and Risking) Interest in International Law, 100 AM J. INT’L L. 259 (2006) (providing a largely positive analysis of the book); Anne Van Aaken, To Do Away With International Law? Some Limits to the ‘Limits of International Law’, 17 EUR. J. INT’L L. 289 (2006) (providing a critique of the book from a rationalist perspective); Symposium: The Limits of International Law, GA. J. INT’L & COMP. L. 253 (symposium issue that included multiple perspectives).4 See supra note 3. 5 All of the symposia held at a variety of law schools during the 2005–06 academic year on climate change regulation embody this focus on climate regulation without much connection to the broader debates over the future of international law. See, e.g., Cap and Trade as a Tool for Climate Change, http://www.law.berkeley.edu/centers/envirolaw/capandtrade/index.html (Feb. 22–23, University of California Berkeley Boalt Hall School of Law); Environmental Law Symposium, Partnerships & Legislation: California’s Approach to Climate Change, http://students.law.ucdavis.edu/ELS/symposium.shtml (UC Davis School of Law, Feb. 23, 2007); Pennsylvania Law Review, Responses to Global Warming: The Law, Economics, and Science of Climate Change, http://www.pennumbra.com/symposia/ (Nov. 16-17, 2006); Stanford Environmental Law Journal and Stanford Journal of International Law, Spring 2007 Symposium: Climate Change Liability and the Allocation of Risk, http://sjil.stanford.edu/climatechange.shtml (Feb. 24, 2007); University of San Francisco School of Law—Law Review, The Domestic Response to Global Climate Change: Federal, State, and Litigation Initiatives, http://www.usfca.edu/lawreview/symposium.html (Mar. 31, 2007). 6 Eric A. Posner, Climate Change and International Human Rights Litigation: A Critical Appraisal (draft manuscript on file with author).

moderated by engaging the significance of Massachusetts v. EPA, the first U.S. Supreme Court case to address climate change.7

As climate change litigation begins to more clearly form part of the fight for the future of international law, a systematic examination of how it fits into that discourse is critical. This article attempts to begin that conversation by examining the ways in which geographic assumptions8 about the nation-state influence the narratives about how this type of litigation fits into an understanding of international law. It argues that interrogating those assumptions and their implications allows for clarification of the significance of climate change litigation crucial to making progress on how to regulate anthropogenic greenhouse emissions and their effects.

In the process of this analysis, the article treats climate change litigation as a case example of how to engage more creatively broader international legal dilemmas. This litigation raises core conceptual issues about the boundaries of domestic and international, and of public and private. It embodies an emerging transnational regulatory process which could be viewed quite differently depending on one’s base assumptions about what international law is and how it works. Moreover, as I explored in The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, the problem of greenhouse gas emissions is deeply intertwined with energy production and consumption, and the complex state-corporate regulatory dynamics which govern that transnational industry.9 As examples from Iran’s nuclear defiance10 to the threatened production stoppage in Alaska11 amply reveal, how law does and should

7 For a summary of that panel, which focused broadly on international legal theory, see Jessica Karbowski, YCS Applications of the New Haven School: Professional Scholarship, http://www.opiniojuris.org/. 8 A law and geography approach considers both the spaces of law (Geography in Law) and the way in which “law shapes physical conditions and legitimates spatiality” (Law in Geography). Jane Holder and Carolyn Harrison, Connecting Law and Geography, in LAW AND GEOGRAPHY, 3, 3–5 (Jane Holder & Carolyn Harrison eds., 2003). This dynamic relationship has been described in the following manner: “Our legal lives are constituted by shifting intersections of different and not necessarily coherently articulating legal orders associated with different scalar spaces. The relations between these different legal spaces is a dynamic and complex one, but it is a pressing and important subject of inquiry given the ways in which codes operative at various scales intermingle.” David Delaney, Richard T. Ford & Nicholas Blomley, Preface: Where is Law at xxi, in THE LEGAL GEOGRAPHIES READER (Nicholas Blomley, David Delaney & Richard T. Ford eds., 2001). 9 See Hari M. Osofsky, The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, 83 WASH. U. L.Q. 1789, 1795–1800 (2005). 10 See Michael Donovan, Iran’s Bomb: Crisis Deferred?, 29 FLETCHER F. WORLD. AFF 27, 36 (2005); Anthony Faiola & Dafna Linzer, WASH. POST A14, June 13, 2006; Richard Spencer, Tension Rises as China Scours Globe for Energy, THE DAILY TELEGRAPH (LONDON) 18, Nov. 19, 2004; Robin Wright, Iran’s New Alliance With China Could Cost U.S. Leverage, WASH. POST A21, Nov. 17, 2004. 11 See David Prosser, BP Battles to Keep Alaska Flowing as Oil Price Heads for Record, 8/14/06 INDEPENDENT (United Kingdom) 36; Pam Radtke Russell, BPs Corrosion Problems in Alaska Have

engage the energy industry is intimately intertwined with critical national security concerns. This article’s engagement of theoretical and normative questions thus aims to situate climate change litigation amid a complex of knotty legal and policy problems vexing the international legal community today.

This piece is the second in a trilogy of articles I am writing on the geography of climate change litigation. The first piece in this series, The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, WASH. U. L.Q. (2005), explores the geography of these actions and the implications of its spaces12 for transnational regulatory governance. That article argues that mapping the ties to place of actors and claims in these actions reveals a three-dimensional geography of overlapping spaces that are simultaneously multiscalar, multibranch, and multiactor.13

This article builds upon that analysis by engaging the conceptual implications of that descriptive account. Drawing from Richard Ford’s conception of governmental spaces in the local government context,14 the piece develops a taxonomy of theoretical approaches to international law based on how they view the role of the nation-state: (1) traditional Westphalian, (2) modified Westphalian, (3) pluralist, and (4) critical.15 It analyzes how each group might narrate climate change litigation, and the presumptions about space that underlie such a framing.16 Then, using Edward Soja’s theory of thirdspace, it engages the possibilities for progress on both climate change regulation and the debate over international law.

Part II introduces the law and geography approach that underlies this piece’s analysis. Part III explores four views of the nation-state as an international lawmaker and what their narratives of climate change litigation might be. Part IV considers the implications of this taxonomy for climate change and international law. The Article concludes with reflections on the questions raised by this law and geography approach. Drawn Attention to Oil Spills, But Officials Say Pipeline Regulations Are Tighter in Louisiana, 8/20/06 TIMES PICAYUNNE 1. 12 The term “space” is central to the geography literature, and has been used in a variety contexts. See, e.g., DAVID HARVEY, SPACES OF CAPITAL: TOWARDS A CRITICAL GEOGRAPHY 369 (2001) (spaces of capital); DOREEN MASSEY, FOR SPACE (2005) (a broad analysis of the concept of space in a globalizing world); Alexander B. Murphy, The Sovereign State System as Political-Territorial Ideal: Historical and Contemporary Considerations, in STATE SOVEREIGNTY AS SOCIAL CONTRACT, 81, 107 (Thomas J. Biersteker & Cynthia Weber eds., 1996) (space in an international economic context). This article uses “space” inclusively to encompass socio-political, socio-cultural, and legal structures. “Place” references ties to specific locations, and “scale” describes the relevant level of governance. 13 Hari M. Osofsky, The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, 83 WASH. U. L.Q. 1789, 1813–18 (2005). 14 See Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1841, 1857–60, 1887–1892 (1994). 15 See infra Part III. 16 See id.

II. Geographic Assumptions about the Nation-State

Geography studies the way in which of place, space, and scale interact over time. The scholarly literature in geography, particularly since the early 1970s, analyzes the complexities of each of those core terms.17 Geography often is described as the spatial analog to history; they both unify a set of disparate topics by focusing on a particular aspect of them, geography on space and history on time. Geography’s spatial focus causes it to cross the often-entrenched distinctions among the hard sciences, social sciences, and humanities. This quality adds to its capacity to address multifaceted problems, but also has contributed to its difficulties establishing itself securely in U.S. universities.18

As I’ve analyzed in depth elsewhere,19 many current U.S. law professors have had limited exposure to university-level geography as a result of its mid-to-late twentieth century purge from many elite institutions; currently 93% of liberal arts institutions lack a geography department and Dartmouth College remains the only Ivy League school with one.20 Although signs of geography’s institutional resurgence abound, most notably in Harvard’s 2006 establishment of a Center for Geographic Analysis,21 law professors’ dearth of geography education tends to make scholarly analysis of geographic concepts thinner. Law and geography has also been slower to emerge than many other law and social science intersections.22

This Part provides background on the relevant geography—as well law and geography—literature, to frame the more specific discussion of the rest of the paper. It begins by introducing the way in which geography interrogates concepts of place, space, and scale. It next summarizes Richard Ford’s use of the geography literature on space to analyze the way in which legal conceptions of local government contribute to racial segregation.

17 See supra Section II.A. 18 Alexander Murphy, Geography’s Place in Higher Education in the United States, 31 J. OF GEOGRAPHER IN HIGHER ED. 121, 122–23 (January 2007); Hari M. Osofsky, A Law and Geography Perspective on the New Haven School, __ YALE J. INT’L L. __ (forthcoming 2007). 19 See Osofsky, supra note 18, at __. 20 See Mark D. Bjelland, A Place for Geography in the Liberal Arts College?, 56 PROFESSIONAL GEOGRAPHER 326, 326 (2004); Department of Geography Dartmouth College, About the Department: An Introduction, http://www.dartmouth.edu/~geog/aboutdept/dept.html (the department currently only grants a Bachelor of Arts degree); Center for Geographical Analysis, http://www.gis.harvard.edu/icb/icb.do; Murphy, supra note 18, at 130–34. 21 See Elizabeth Gerhman, Geography Center Launched, HARV. UNIV. GAZETTE, May 11, 2006, http://www.news.harvard.edu/gazette/2006/05.11/05-geography.html. 22 See Osofsky, supra note 18, at __. For examples of international law and geography scholarship that draws from the discipline of geography, see Keith Aoki, Space Invaders: Critical Geography, the “Third World” in International Law and Critical Race Theory, 45 VILL. L. REV. 913 (2000); Matthew R. Auer, Geography, Domestic Politics and Environmental Diplomacy: A Case from the Baltic Sea Region, 11 GEO. INT’L ENVTL. L. REV. 77 (1998); Paul Schiff Berman, The Globalization of Jurisdiction, 151 U. PA. L. REV. 311 (2002); Richard T. Ford, Law’s Territory (A History of Jurisdiction), 97 MICH. L. REV. 843 (1999); Osofsky, supra note 9; Robert R.M. Verchick, Critical Space Theory: Keeping Local Geography in American and European Environmental Law, 73 TUL. L. REV. 739 (1999).

Finally, it demonstrates how Ford’s approach might be applied in the context of international legal theory.

A. Place, Space, and Scale For the reasons discussed above, analyses of legal problems often engage concepts of “place,” “space,” and “scale,” but generally with little acknowledgement of the rich literature in geography exploring what these ideas mean.23 This section provides a brief introduction to that literature as a background for understanding the insights that a law and geography approach can bring. In his foundational book, Space and Place: The Perspective of Experience, Yi-fu Tuan explains that that“[s]pace and place are basic components of the lived world; we take them for granted. When we think about them, however, they may assume unexpected meanings and raise questions we have not thought to ask.”24 He further explains:

In experience, the meaning of space often merges with that of place. “Space” is more abstract than “place.” What begins as undifferentiated space becomes place as we get to know it better and endow it with value. Architects talk about the spatial qualities of place; they can equally well speak of the locational (place) qualities of space. The ideas “space” and “place” require each other for definition. From the security and stability of place we are aware of the openness, freedom, and threat of space, and vice versa. Furthermore, if we think of space as that which allows movement, then place is pause; each pause in movement makes it possible for location to be transformed into place.25

More recent scholarly literature has explored numerous aspects of the concept of “space” in a globalizing world.26

23 I have analyzed this phenomenon in the context of the New Haven School of international law in Osofsky, supra note 18, at __. 24 YI-FU TUAN, SPACE AND PLACE: THE PERSPECTIVE OF LIVED EXPERIENCE 3 (1977). 25 See YI-FU TUAN, supra note 24, at 6; see also John A. Agnew & James S. Duncan, Introduction, in THE POWER OF PLACE: BRINGING TOGETHER GEOGRAPHICAL AND SOCIOLOGICAL IMAGINATIONS 1, 1 (John A. Agnew & James S. Duncan, eds., 1989); Helen Couclelis, Location, Place, Region, and Space, in GEOGRAPHY’S INNER WORLDS: PERVASIVE THEMES IN CONTEMPORARY AMERICAN GEOGRAPHY 215, 215 (Ronald F. Abler, Melvin G. Marcus & Judy M. Olson, eds., 1992). Accord Michael R. Curry, On Space and Spatial Practice in Contemporary Geography, in CONCEPTS IN HUMAN GEOGRAPHY 3, 3 (Earle Carville, ed., 1995) (“When first confronted with the literature on the nature of space, the new student finds a bewildering set of apparent alternatives. There is real space and perceived space, there is phenomenal space and behavioral space, there is ideal space and material space. Within the confines of this group of broader and contrasting conceptions, there appear to be another set of related contrasts, of place, region, site, location, locale, and situation….”). 26 See, e.g., EDWARD W. SOJA, POSTMODERN GEOGRAPHIES: THE REASSERTION OF SPACE IN CRITICAL SOCIAL THEORY [add pincite] (1989); EDWARD W. SOJA, THIRDSPACE: JOURNEYS TO LOS ANGELES AND OTHER REAL-AND-IMAGINED PLACES (1996); DOREEN MASSEY, FOR SPACE (2005).

“Scale” has received similar interrogation. Neil Brenner’s has summarized the various definitions provided for scale in recent geography scholarship: (1) “a nested hierarchy of bounded spaces of differing size;” (2) “the level of geographical resolution at which a given phenomenon is thought of, acted on or studied;” (3) “the geographical organizer and expression of collective social action”; and (4) “the geographical resolution of contradictory processes of competition and cooperation.”27 He then provides his own detailed definition after explaining that his analysis is “broadly compatible” with these definitions “but emphasizes, above all, the hierarchization of spaces in relation to one another.”28 Moreover, geographers have begun to engage the way in which their analyses of scale might interact with discussions in other disciplines. Nathan Sayre, for example, has compared the approaches of geographers with those of ecologists.29

By using these geographic ideas more precisely and recognizing the assumptions imbedded in usages of them, scholars can gain new insights into legal constructs. Such an approach is particularly important in the context of climate change and international law because, as discussed in more depth in Parts III, both have many imbedded geographic assumptions.

B. Narrating Local Governmental Spaces Richard Ford of Stanford Law School has played a critical role in establishing law and geography as an important interdisciplinary interchange. The 1996 Stanford Law Review symposium on Surveying Law and Borders, which he organized, represented the first time a major law review focused on law and geography work.30 Moreover, his co-edited book, The Legal Geographies Reader, provides a much-needed introduction to the wide range of ways in which law and geography analysis can contribute to legal scholarship.31

In one of his earliest law and geography pieces, The Boundaries of Race: Political Geography in Legal Analysis, Ford explores the way in which legal conceptions of cities serve to reify the status quo in ways that reinforce racial segregation. He describes these

27 NEIL BRENNER, NEW STATE SPACES: URBAN GOVERNANCE AND THE RESCALING OF STATEHOOD 9 (2004) (internal quotations omitted). 28 Id.; see also Sallie A. Marston, The Social Construction of Scale, 24 PROGRESS IN HUMAN GEOGRAPHY 219 (2000); Neil Brenner, The Limits to Scale? Methodological Reflections on Scalar Structuration, 25 PROGRESS IN HUMAN GEOGRAPHY 591 (2001); Sallie A. Marston & Neil Smith, States, Scales and Households: Limits to Scale Thinking? A Response to Brenner, 25 PROGRESS IN HUMAN GEOGRAPHY 615 (2001). 29 Nathan F. Sayre, Ecological and Geographical Scale: Parallels and Potential for Integration, 29 PROGRESS IN HUMAN GEOGRAPHY 276 (2005). 30 See 48 STAN. L. REV. 1037–1429 (1996). 31 THE LEGAL GEOGRAPHIES READER (Nicholas Blomley, David Delaney & Richard T. Ford eds., 2001). This represented the first such compilation. Since then, there has been one other. LAW AND GEOGRAPHY (Jane Holder & Carolyn Harrison eds., 2003). Nicholas Blomley, one of Ford’s co-editors, wrote the first monograph broadly exploring the ways in which critical geography could aid legal analysis. See NICHOLAS K. BLOMLEY, LAW, SPACE AND THE GEOGRAPHIES OF POWER (1994).

legal spaces as simultaneously opaque and transparent in ways that reify the status quo.32 Ford uses the term “opaque” to mean that the law does not explore the internal decisionmaking of cities. He explains that cities are viewed as organically developing and then being discovered by law. As such, they are treated as autonomous political entities: “We cannot ‘see inside’ the political space to perceive the social institutions that define and comprise it.”33

Ford further argues that the law simultaneously treats cities as “transparent,” by which he means that the legitimacy of their authority is not questioned. He notes that the law views localities “as mere subdivisions, the inconsequential and administratively necessary agents of centralized power.”34 The applicable legal doctrines assume that this supposedly transparent power structure should be treated as irrelevant, and thus fails to explore its consequences.35

In Ford’s conception, the law continuously oscillates between these views of the city in a manner that avoids fundamental engagement with the impact that they have on racial segregation. By failing to examine the social institutions inside localities and by treating them as mere agents, the law does not see the ways in which communities make decisions that separate racial groups. Together, these views of the spaces for local government maintain and reinforce racially identified spaces.36

C. Narrating Nation-State Spaces

This analysis that Ford provides regarding cities translates readily into the international law context. Theories of international and transnational law vary in the extent to which they view the political geography of nation-state as opaque and/or transparent, as defined by Ford. These spatial conceptions roughly track these theories’ assumptions about the centrality of the nation-state. Grouping international legal theory based on these assumptions changes the lens through which these theories are being viewed from the predominant norm-based/interest-based one,37 and in so doing, provides an opportunity for insights into the spaces that underlie them. 38

32 See Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1841, 1857–60, 1887–1892 (1994). 33 Id. at 1858. 34 Id. at 1877. 35 Id. 36 Id. at 1886–1918. 37 In Foundations of International Law and Politics, for example, Oona Hathaway and Harold Koh argued that the intersection of international relations and international law can be sub-divided into interest-based and norm-based approaches. FOUNDATIONS OF INTERNATIONAL LAW AND POLITICS (Oona A. Hathway & Harold Hongju Koh, eds., 2005). 38 The aim of this grouping is to portray a theoretical landscape. Although this Part attempts to group leading theories as accurately as possible, these groupings are my choices, rather than those of the authors of those theories. I am open to the notion that those authors might choose to

At one end of the spectrum, a traditional Westphalian approach treats the nation-state similarly to Ford’s model of the legal treatment of the city. Namely, the nation-state’s power is treated as transparent—whether from divine authority embodied in the king or through popular sovereignty into an elected leader—and therefore irrelevant; this model does not question the extent to which the nation-state structure actually comports with those values, and therefore should be the basis for an international legal order. This legitimation of the nation-state as the central axiom of the international legal system is reinforced by the simultaneously opaque way in which the Westphalian model views the state; the nation-state is an impenetrable unit upon whose consent international law rests.39

At the other end of the spectrum, critical conceptions of nation-state spaces treat them as neither opaque nor transparent. These accounts—which draw from critical race theory, LatCrit theory, third world approaches to international law, new approaches to international law, feminist theory, etc.—argue against the legitimacy of the nation-state (altogether for some, as currently constructed for others). They decry as illegitimate the colonialism and conquest that shaped the modern map, and examine the subordination that underlies the international legal system.40

Between those two poles lies much of contemporary international legal theory. Most of the scholars engaged in the debate over international law described in the introduction range from what I call a modified Westphalian approach to a pluralist one. In a modified Westphalian visions, the centrality of the nation-state is not fundamentally challenged, but the processes by which nation-states consent and obey are interrogated. Power is still relatively transparent because of that presumption of centrality, but the state is far less opaque.

recategorize themselves, or that a particular theory could arguably have some characteristics of more than one group. 39 For an exposition of the Westphalian vision, see IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 287–88 (6th ed. 2003); see also Michael J. Kelly, Pulling at the Threads of Westphalia: “Involuntary Sovereignty Waiver,” Revolutionary International Legal Theory or Return to Rule by the Great Powers, __ UCLA J. INT’L L. __ (forthcoming) (draft on file with author). 40 See, e.g., BALAKRISHNAN RAJAGOPAL, INTERNATIONAL LAW FROM BELOW: DEVELOPMENT, SOCIAL MOVEMENTS AND THIRD WORLD RESISTANCE (2003) (exploring the relationship between the Third World and international law in the Twentieth Century); Symposium, Critical Race Theory and International Law: Convergence and Divergence, 45 VILL. L. REV. 827 (2000) (exploring how Critical Race Theory might interact with international law); David Kennedy, When Renewal Repeats: Thinking Against the Box, 32 N.Y.U. J. INT’L L. & POL. 335, 476–500 (2000) (describing the evolution of New Approaches to International Law (NAIL)); Obiora Chinedu Okafor, Newness, Imperialism, and International Legal Reform in Our Time: A Twail Perspective, 43 OSGOODE HALL LAW JOURNAL 171 (2005) (exploring post-9-11 claims of a new international order from a Third World Approaches to International Law (TWAIL) perspective).

A growing number of scholars provide a more pluralist vision of international lawmaking that questions the centrality of the nation-state. They argue for recognition of the significance of the other types of decision-making that occur, and the multiplicity of interconnections that individuals have.41 Their work often builds on the scholarship of the New Haven School, which described law as “a process of authoritative decision by which members of a community clarify and secure their common interests“ and “noted the importance of locating any particular process of authoritative decision in its larger context of community and effective power processes, and observed that humankind today lives in a whole hierarchy of interpenetrating communities, from the local to the global.”42 These pluralist perspectives do not abandon the nation-state, but through viewing it as less central, penetrate the opaque and transparent spaces of the Westphalian vision.

Of course, most theories do not fit neatly into one of these four boxes. Anne-Marie Slaughter’s conception of “a new world order,” for instance, involves a three-dimensional model of transgovernmental relationships that form the infrastructure of global governance.43 Her first premise, however, makes clear that the model has not entirely abandoned the state centrality of the modified Westphalians: “The state is not the only actor in the international system, but it is still the most important actor.”44 Similarly, Balakrishnan Rajagopal’s article, The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India, takes an approach that is arguably both pluralist and critical.45

Although individual theories may have more than one category in which they belong, the taxonomy still provides a helpful mechanism for exploring the implications of how we narrate climate change litigation. Through their different conceptions of state spaces, each of these four approaches to international legal theory would explore the significance of climate change litigation differently. An engagement of these stories illuminates how a law and geography perspective might help map existing streams of international legal theory and, in the process, enhance our understanding of them and their perspective on phenomenon that we use them to explain.

41 See Paul Schiff Berman, Conflict of Laws and the Challenge of Legal Pluralism (draft on file with author); Janet Koven Levit, A Bottom-Up Approach to International Law Making: The Tale of Three Trade Finance Instruments, 30 YALE J. INT’L L. 125 (2005). 42 HAROLD D. LASSWELL & MYRES S. MCDOUGAL, JURISPRUDENCE FOR A FREE SOCIETY: STUDIES IN LAW, SCIENCE AND POLICY, at xxi (1992). Accord Richard A. Falk, Casting the Spell: The New Haven School of International Law, 104 YALE L.J. 1991 (1995); Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 AM. J. INT’L L. 1 (1959); Myres S. McDougal, et al., The World Constitutive Process of Authoritative Decisions, 19 J. LEGAL EDUC. 253 (1967); W. Michael Reisman, International Lawmaking: A Process of Communication, The Harold D. Lasswell Memorial Lecture, (April 24, 1981), in 75 AM. SOC’Y INT’L L. PROC. 101 (1981). 43 ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 18-23 (2004). 44 Id. at 18. 45 Balakrishnan Rajagopal, The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India, 18 LEIDEN J. INT’L L. 18 (2005).

III. A Law and Geography Taxonomy of International Legal Theory The sections that follow—organized around these four main views of the nation-state—focus on two primary questions: (1) How might a narrative from each theoretical perspective explain the way in which climate change litigation fits into international law, and (2) How does this interaction clarify the presumptions about space that underlie these approaches? Exploring potential answers to these questions helps to lay the groundwork for addressing underlying normative dilemmas about the appropriate role for climate change litigation in transnational regulatory governance, and how this role should navigate the multiplicity of scales and actors that climate change litigation entails.46

A. Traditional Westphalian Spaces In a traditional Westphalian approach, nation-states are the primary subjects and objects of international law and their consent undergirds the international legal order. The two primary building blocks of public international law, treaties and customary international law, are constructed by nation-states and derive their binding force from the decisions of those states.47 These sovereign equals cede specific authority to the international community through their consent, and the general legal principles they recognize in their domestic legal systems help to fill the gaps in that formal legal structure.48

As noted above, traditional Westphalian spaces closely replicate the dialectical relationship of opaqueness and transparency that Ford describes in the local government context. The Westphalian nation-state is impenetrable; the only relevant question is whether or not it, as a unit, has consented. The internal processes through which it derives consent, and the formal and informal—often private—actors participating in those processes, are only relevant to the extent that they help to answer the question of consent.49

At the same time, the international legal community treats states as transparent. If they meet the criteria for statehood—which do not delve into legitimacy of a state’s current legal order but only its stability and effectiveness—they have formal rights to participate in international lawmaking as sovereign equals.50 Moreover, although states at times

46 For an interesting historical analysis of the public/private divide in the context of cities, see Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1059 (1980). For an analysis of the blurring of public and private in the nation-state context, see Laura A. Dickinson, Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability Under International Law, 47 WM. & MARY L. REV. 135 (2005). 47 See BROWNLIE, supra note 39, at 3–29, 287–88. 48 See id. 49 See id. 50 See id. at 69–83.

choose not to recognize each others’ governments for political reasons, such nonrecognition is rare and does not go to the underlying question of statehood.51

A narrative of climate change litigation from this perspective would look quite different from the modified Westphalian one I provided in The Geography of Climate Change Litigation. First, the only cases that would be viewed as having international legal relevance are those that involve supranational obligations. The cases which invoke subnational or national law—which includes all of the subnational-level cases and of the national-level ones brought within the United States—occur within the black box of the nation-state. The involvement of transnational actors in the litigation and the factual focus on a supranational problem would not change their status. The Minnesota Court of Appeals’ analysis—discussed in depth in The Geography of Climate Change Litigation—of whether the Minnesota Public Utilities Commission included carbon dioxide in its environmental cost valuation scheme on the basis of substantial evidence, for instance, invokes only Minnesota law; it does not purport to be an international law case.52 Similarly, Massachusetts v. EPA, as a formal matter, focuses entirely on federal law.53

Second, the cases invoking supranational law have international legal relevance in a much thinner way than suggested in that law and geography analysis of them. The relevant issue for the traditional Westphalian is not how these cases play into broader transnational regulatory dynamics, but how they interact with state consent. The supranational tribunals might clarify, for example, what a state’s obligations are under treaties it has consented to, and whether or not it is meeting those obligations appropriately.54 The national courts’ consideration of regional treaties in the German and Nigerian cases, discussed in detail in The Geography of Climate Change Litigation, similarly helped to establish how the nation-state views its obligations under those treaties.55

51 See id. at 85–101. 52 See Quantification of Envtl. Costs, 578 N.W.2d 794, 796–97 (Minn. Ct. App. 1998); see also See Osofsky, supra note 13, at 1818–1822. 53 Massachusetts v. EPA, 433 F.3d 66 (D.C. Cir. 2005), cert. granted 2006 WL 1725113 (U.S. Dist. Col. June 26, 2006) (No. 05-1120); I have discussed this view of that litigation as problematic in Hari M. Osofsky, Climate Change Litigation as Pluralist Legal Dialogue?, __STAN. ENV. L.J. & STAN. J. INT’L L. (forthcoming 2007). 54 For example, the Inter-American Commission on Human Rights has been asked to play this role in the Inuit Petition. See Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (submitted Dec. 7, 2005), available at http://www.earthjustice.org/library/reports/ICC_Human_ Rights_Petition.pdf.; see also Statute of the Inter-American Commission on Human Rights arts. 18–20, Oct. 31, 1979, O.A.S. G.A. Res. 447 (IX-0/79), available at http://www.iachr.org/Basicos/basic15.htm; Inter-American Commission on Human Rights, What Is the IACHR?, http://www.iachr.org/what.htm (last visited Aug. 22, 2006). 55 See, e.g., See Gbemre v. Shell Petroleum Dev. Co. Nigeria Ltd. et al., [2005]—F.H.C.N.L.R.—(Nigeria), available at

Moreover, in the truly Westphalian approach, the petition processes in the supranational cases likely would be viewed as problematic, since they give status to individuals vis-à-vis sovereign states.56 Only the “public” nation-states belong in the international legal discourse, and not the “private” individuals and organizations that have brought petitions to the Inter-American Commission on Human Rights and the World Heritage Commission.57

The traditional Westphalian narrative thus would consider ties to place only as they relate to the obligations of nation-states. Place matters as territory, and falls inside or outside of the boundaries of a particular state.58 The spaces that matter are state spaces, and climate change litigation forms part of an international law dialogue through its interaction with those spaces. The subnational spaces, branches of government, and multiple participating public and private actors represented in three-dimensional geographic model are relevant only in so far as they are instrumental in influencing state spaces; they do not form part of the formal map.

B. Modified Westphalian Spaces www.climatelaw.org/media/gas.flaring.suit.nov2005/ni.shell.nov05.decision.pdf; Climate Justice, Climate Impacts of German Export Credits to Be Disclosed, http://www.climatelaw.org/media/Germany (last visited Mar. 1, 2006). 56 Beth Stephens, Individuals Enforcing International Law: The Comparative and Historical Context, 52 DEPAUL L. REV. 433 (2002). These issues also have arisen in the question of individual responsibility in the international criminal law context. See André Nollkaemper, Concurrence Between Individual Responsibility and State Responsibility in International Law, 52 INT’L & COMP. L.Q. 615 (2003). 57 Petition to the World Heritage Committee Requesting Inclusion of Belize Barrier Reef Reserve System in the List of World Heritage in Danger as a Result of Climate Change and for Protective Measures & Actions (Nov. 15, 2004), available at http://www.climatelaw.org/media/ UNESCO.petitions.release/belize.barrier.reef.doc [hereinafter Belize Petition]; Petition to the World Heritage Committee Requesting Inclusion of the Huascaran National Park in the List of World Heritage in Danger as a Result of Climate Change (Nov. 17, 2004), available at http://www. climatelaw.org/media/UNESCO.petitions.release/peru.huascaran.national.park.doc [hereinafter Peru Petition]; Petition to the World Heritage Committee Requesting Inclusion of Sagarmatha National Park in the List of World Heritage in Danger as a Result of Climate Change and for Protective Measures & Actions (Nov. 15, 2004), available at http://www.climatelaw.org/media/UNESCO. petitions.release/nepal.sagarmatha.national.park.doc; DONALD R. ROTHWELL, SYDNEY CTR. FOR INT’L AND GLOBAL LAW, GLOBAL CLIMATE CHANGE AND THE GREAT BARRIER REEF: AUSTRALIA’S OBLIGATIONS UNDER THE WORLD HERITAGE CONVENTION (Sept. 21, 2004), available at http://www.law.usyd.edu.au/scigl/SCIGLFinalReport21_ 09_04.pdf; Petition to the World Heritage Committee Requesting Inclusion of Waterton-Glacier International Peace Park on the List of World Heritage in Danger as a Result of Climate Change and for Protective Measures and Actions (Feb. 16, 2006), available at http://law.lclark.edu/org/ielp/ objects/Waterton-GlacierPetition2.15.06.pdf; see also Frug, supra note 46. I have explored this problem in Osofsky, supra note 53. 58 See Richard T. Ford, Law’s Territory (A History of Jurisdiction), 97 MICH. L. REV. 843 (1999).

Contemporary international legal theory almost never hews to the strictures of the traditional Westphalian vision. In fact, many of the leading theoretical approaches—even ones that vigorously disagree with one another—would be characterized most accurately as presenting modified Westphalian models. For example, Jack Goldsmith and Eric Posner present a perspective on international law that contrasts greatly with that of Harold Koh, but both approaches agree upon the central formal role of the nation-state (the Westphalian move) while looking inside nation-state decisionmaking (the modification).59

Despite the conceptual and political diversity within this category, modified Westphalian approaches share foundational commonalities in how they view the spaces of international law. The nation-state’s internal spaces are far less opaque than in a traditional Westphalian construction. Harold Koh’s theory of transnational legal process, for example, explains states’ compliance with rules of international law from an obedience born of norm internalization; that internalization process happens through state and nonstate actors interacting in a variety of domestic and international fora.60 Although the nation-state’s consent—to the norm itself and to compliance with it—ultimately grounds international law, the space in which that consent happens is no longer impenetrable. Additional public and private actors form part of the Westphalian lawmaking process, and that changes how the states themselves should be viewed.

The transparency of the traditional Westphalian vision largely remains in the modified Westphalian theories, however. These theories still presume the centrality of the nation-state for international law, and do not dismantle fundamentally the consent-based architecture of the international legal system. They argue about the extent to which international law matters and its appropriate boundaries, but they assume that this type of law—whatever its import and however disaggregated the process by which it is made—is constituted, at least formally, through consensual agreements between equal sovereigns. 61

The Geography of Climate Change Litigation provides an example of a modified Westphalian narrative of climate change litigation. Through analyzing the ties to place in cases at multiple levels of governance, the article portrays a disaggregated vision of international decision-making that intertwines a multiplicity of decisionmakers at different scales;62 the state is thus far less opaque than in the traditional Westphalian 59 Compare GOLDSMITH & POSNER, supra note 3, with SLAUGHTER, supra note 43 & Koh, Jefferson Memorial Lecture: Transnational Legal Process After September 11th, 22 BERKELEY J. INT’L L. 337, 339 (2004). 60 See Koh, Jefferson Memorial Lecture: Transnational Legal Process After September 11th, supra note 59. 61 See, e.g., GOLDSMITH & POSNER, supra note 3, at 4–5; SLAUGHTER, supra note 43, at 1–35; Koh, Jefferson Memorial Lecture: Transnational Legal Process After September 11th, supra note 59, at 338–39. 62 See Osofsky, supra note 13, at 1813–1818. As noted in my initial article, this disaggregated model has structural similarities to, but conceptual differences from, the one presented by Anne-Marie Slaughter in A New World Order (2004). See Osofsky, supra note 13, at n.85.

view. However, it views the nation-state, particularly in its regulatory relationship with multinational corporations, at the core of this transnational dialogue. While the account does not treat state authority as presumptively justified, it acknowledges its centrality and does not focus on legitimacy questions. In so doing, it provides a relatively transparent vision of the nation-state’s role in the international legal system.

Although the details of why these cases matter would vary greatly across the range of modified Westphalian theories, the accounts likely all would share two basic characteristics with the above narrative. First, they would acknowledge these cases as relevant to the international legal process of regulating climate change. Whether operating from the perspective that states make decisions normatively or based out of self-interest, these theories recognize the relevance of looking inside why states do what they do. Their narrative of these cases—from subnational to supranational—would view them as intertwined with more formal international lawmaking. Although the Minnesota Court of Appeals does not mention international law,63 a transnational judicial process scholar likely would view it as helping to internalize norms around regulation of greenhouse gas emissions.

Second, they would not engage these cases as fundamental challenges to the Westphalian order. Certainly, Goldsmith and Posner embrace a far more limited conception of the boundaries and roles of international law than does Koh.64 But even Goldsmith and Posner embrace international law as a “real phenomenon”65 and justify state centrality on the basis that “international law addresses itself to states, and for the most part, not to individuals or other entities such as governments.”66 These cases might be part of a narrative of climate change in which the nation-state is less opaque, but they would be fit within the transparent power of the nation-state. For instance, the modified Westphalian would view the Supreme Court’s upcoming decision about whether the EPA is acting within its discretion in not regulating greenhouse gas emissions from motor vehicles under the Clean Air Act67 as relevant to transnational governance beyond its direct impact on U.S. treaty and customary international obligations, but would still view those obligations as international law itself.

Ties to place would enter the modified Westphalian analysis, therefore, primarily as a way to explain the process by which the nation-states engage in regulation. An explicit engagement with place would thicken many of the leading accounts’ efforts to open the black box of the nation-state. For an interest-based approach,68 a focus on place would help to explain the spaces for states’ interests more clearly. Similarly, theories that

63 See Quantification of Envtl. Costs, 578 N.W.2d 794, 796–97 (Minn. Ct. App. 1998). 64 See supra note 59 and accompanying text. 65 GOLDSMITH & POSNER, supra note 3, at 225. 66 Id. at 5. 67 Massachusetts v. EPA, 433 F.3d 66 (D.C. Cir. 2005), cert. granted 2006 WL 1725113 (U.S. Dist. Col. June 26, 2006) (No. 05-1120). 68 For a selection of interest-based approaches, see FOUNDATIONS OF INTERNATIONAL LAW AND POLITICS, supra note 37, at 26–110.

believe states make decisions based on internalized norms69 would benefit from considering how these ties influence the spaces for norm development. The multiplicity of ties does not necessarily undermine the Westphalian presumption, but does help to penetrate the opaque nation-state and reveal public and private spaces within it relevant to the international legal discourse.

C. Pluralist Spaces Pluralist approaches part ways with these modified Westphalian ones primarily by decentering the nation-state. They argue for a theory of international law in which the formalized acts between sovereign consenting states are no longer the primary behavior that constitutes international law-making. Since McDougal and Lasswell’s initial portrayal of a pluralist vision of international law, both New Haven School scholars70 and others—such as Elena Baylis,71 Paul Berman,72 William Burke-White,73 Janet Koven Levit,74 Sally Engle Merry,75 Ralf Michaels,76 Balakrishnan Rajagopal,77 and me78—have further explored the contours of what is typically termed “global legal pluralism.”79

Although a true pluralist approach would view the state as merely one lawmaker among many, those that I include as “pluralist” international legal theorists generally do acknowledge the state as particularly important. This acknowledgement is a demoting of the state from the pedestal it occupies in the various Westphalian approaches, but the line between approaches I am characterizing as modified Westphalian and those I am characterizing as pluralist is often quite fine. Levit’s conceptualization of “bottom-up lawmaking,” for example, notes its commonalities with both transnational legal process and transgovernmentalism, but distinguishes them because of their greater focus on

69 For a selection of norm-based approaches, see id. at 111–204. 70 See, e.g., Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 AM. J. INT’L L. 1 (1959); Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The World Constitutive Process of Authoritative Decision, 19 J. LEGAL EDUC. 253 (1966–67); Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 VA. J. INT’L L. 188 (1967–68). 71 Elena Baylis, Parallel Courts in Post-Conflict Kosovo, 32 YALE J. INT’L L. 1 (forthcoming 2007). 72 Paul Schiff Berman, Global Legal Pluralism (Draft Manuscript) (On File with Author). 73 William W. Burke-White, International Legal Pluralism, 25 MICH. J. INT’L L. 963 (2004). 74 Janet Koven Levit, A Bottom-Up Approach to International Law Making: The Tale of Three Trade Finance Instruments, 30 YALE J. INT’L L. 125 (2005). 75 Sally Engle Merry, International Law and Sociolegal Scholarship: Towards a Spatial Global Legal Pluralism, __ STUDS. IN L. POLITICS & SOC’Y__ (forthcoming 2007). 76 Ralf Michaels, The Re-State-Ment of Non-State Law: The State, Choice of Law, and the Challenge from Global Legal Pluralism, 51 WAYNE L. REV. 1209 (2005). 77 See Rajagopal, supra note 45. 78 See Osofsky, supra note 53. 79 I have argued, however, that “multiscalar legal pluralism” would be a more appropriate label. See id.

states.80 Similarly, as noted above, it is ambiguous which of the two approaches best captures Anne-Marie Slaughter’s work.81

With respect to nation-state opaqueness, pluralists share much in common with modified Westphalian scholars. Their accounts consider the ways in which actors other than the nation-state create norms and legal rules, and the interactions among all of the relevant actors. In their descriptions and explications, international lawmaking moves beyond the opaque Westphalian notion of state consent to a nuanced dance among multiple normative communities.82

The bigger divergence comes through an examination of transparency. The pluralists questioning of the presumption of nation-state centrality also undermines the transparency underlying the Westphalian model of the international legal system. The normative Westphalian justification of the international legal system rests on the presumption that consent by sovereign equals drives the system. Just as the city is viewed as transparent and irrelevant because it is an administrative unit of the state,83 international law’s legitimacy flows transparently from the centrality of the nation-state. If state authority no longer forms the core through which international norms and law are justified, a thicker, less transparent approach to the international legal system is needed.

A pluralist narrative of climate change litigation would thus resemble the modified Westphalian one in its acceptance of this litigation as relevant to the story of international regulation of greenhouse gas emissions and their impacts. These cases interact with and are part of norm formation, and help to drive what states view as in their interest. Because decisionmaking does not simply rest inside the opaque state, climate change litigation can be analyzed as part of the process.

The pluralist account would differ from the Westphalian one, however, in the status it would give to this litigation as lawmaking. As I have explored in depth in Climate Change Litigation as Pluralist Legal Dialogue?, this approach might treat subnational and national cases, as well as the informal import of supranational petitions, as part of a hybrid model of international lawmaking.84 For the pluralist, the litigation is important not only as part of the state decisionmaking process, but also as a lawmaking process in its own right. The tribunals, and the actors engaging with them, are crafting the international legal response to climate change. The Minnesota Court of Appeals,85 for 80 See Levit, supra note 74 81 See SLAUGHTER, supra note 43. 82 See Berman, supra note 41; see also Levit, supra note 41, at 175–94. This concept builds on the “interpenetrating communities” described by the New Haven School. LASSWELL & MCDOUGAL, supra note 42, at xxi. 83 See Ford, supra note 14, at 1877. 84 See Osofsky, supra note 53. 85 See Quantification of Envtl. Costs, 578 N.W.2d 794, 796–97 (Minn. Ct. App. 1998).

instance, might be viewed by a pluralist as acting as an international lawmaker through viewing carbon dioxide as a pollutant based on its contribution to global climate change; its decision impacts how some of those emissions are being regulated, and therefore the phenomenon that is being regulated at multiple levels of governance.

Ties to place might enter the pluralist narrative through “multiple ports.”86 At the simplest level, looking at how tribunals, litigants, and claims connect to places helps to define the spaces occupied by the normative communities relevant to the lawmaking dialogue. More foundationally, these normative communities intertwine with issues of identity, which has a complex relationship with place. A geographic approach thus provides a critical tool for pluralists to identify and understand the public and private spaces included in their hybrid international lawmaking narrative.

D. Critical Spaces

Critical approaches do not simply reject the centering of the state, but rather question the legitimacy of the nation-state structure on which the international legal system rests. They criticize the supposed neutrality of the Westphalian spaces, and explore the ways in which colonialism, racism, sexism, and subordination underlie them. These approaches vary widely in the substance of their particular critique, and what solutions—if any—they propose. But they share in common a strong skepticism of even modified Westphalian visions of the international legal system.87

As noted above, critical approaches attack both the opacity and the transparency of the Westphalian vision. For these scholars, the opaqueness problem goes beyond the multiplicity of relevant actors that dominate the modified Westphalian and pluralist conceptions. Their critiques look inside the spaces formed by these institutions and demonstrate the problematic social dynamics that infuse them. They argue that international law, born from these institutions and dynamics, is fundamentally flawed.88

Like the pluralist theories, critical approaches’ dismantling of the Westphalian vision does not end with penetrating the opaque state. But they go much farther in their attack on transparency than the pluralists do. For critical approaches, states are not simply one actor among others. Rather, these theories question the legitimacy of the axiomatic state sovereignty and equality on which the international legal system is supposedly built. They demonstrate inequalities within states and among states, and critique the whole Westphalian enterprise as a legitimization of colonial practices that subordinate

86 Judith Resnik used this conception of multiple ports of entry in her recent article arguing that norms are often absorbed through informal mechanisms, and then incorporated as constitutive parts of domestic identity. See Judith Resnik, Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry, 115 YALE L.J. 1564 (2006). 87 See supra note 40 and accompanying text. 88 See id.

indigenous and minority populations. They argue that the dominating spaces for nation-states served to erase unjustly the territorial claims of original inhabitants.89

For these scholars, a narrative of climate change litigation might focus on the problematic power relationships that necessitate these actions and the fundamental structural limitations on what they can achieve. To the extent that this litigation is an effort to force governmental regulatory behavior, it is stuck operating within the current and problematic confines of state sovereignty. Although the adjudication sometimes provides a mechanism for subordinated groups to voice their complaints, its ability to provide meaningful redress is constrained by the foundational flaws in the systems attempting to provide such redress.90

For example, a scholar taking this type of theoretical approach might argue that the Inuit’s petition to the Inter-American Commission on Human Rights claiming that U.S. climate change policy violates their rights demonstrates systematic flaws in avenues for redress. The Inuit are using the language of international human rights—a Western, developed country construct—to attempt to gain redress. 91 The body they are petitioning to was constructed by nation-states that devastated their indigenous populations.92 In any case, the United States has demonstrated in its response to recommendations by the Commission in previous cases that it is highly unlikely to change its behavior based on the outcome of this case.93 The petition thus cannot achieve meaningful redress because it functions in an illegitimate system. The Westphalian concern of the private actor being given an official role in the public nation-state system is supplanted by more foundational difficulties.

An examination of the relationship among place, space, and time provides a powerful tool for this type of analysis. For instance, Sherene Razack’s anthology, Race, Space, and the Law: Unmapping a White Settler Society uses a law and geography approach to explore “how the constitution of spaces reproduces racial hierarchies [through an examination of] the spatial and legal practices required in the making and maintaining of

89 See id. 90 I am exploring these quandaries in a piece for a U.C. Davis symposium on The Evolution of Colonialism in a Global Economy. See Hari M. Osofsky, Climate Change as a Neocolonial Problem?, __ U.C. DAVIS J. INT’L L. & P. __ (forthcoming 2007). 91 See Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (submitted Dec. 7, 2005), available at http://www.earthjustice.org/library/reports/ICC_Human_ Rights_Petition.pdf. 92 For a summary of the impact of colonialism on indigenous peoples in North and South America, see S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 3–4 (2d. ed., 2004). 93 See, e.g., Case No 11.140 , Inter-Am. C.H.R. 113/01 (2001); Response Of The Government Of The United States To October 10, 2002 Report No. 53/02 Case No. 11.140 (Mary And Carrie Dann), available at http://www.cidh.org/Respuestas/USA.11140.htm.

a white settler society.”94 As part of that exploration, the book describes the way in which the delineation of territory, and corresponding conceptions of empty space, helped to undergird colonial subordination.95 By considering the spaces created by legal conceptions of ties to place over time from a critical perspective, deconstructed scholarly approaches gain additional fuel for their attack on Westphalia and its vision of public international law.

E. Reflections on Theorizing State Spaces

The above narratives and the spaces they reveal lead to further difficulties for fitting climate change litigation within a coherent conception of transnational regulatory governance. Namely, the moves away from the traditional Westphalian model focus more on opacity than transparency. The latter three theoretical approaches all disaggregate state consent to varying degrees, but only the deconstructed approaches foundationally challenge whether international law should be based on the nation-state.96

To some extent this lack of parallelism may reflect a practical impulse. Without nation-state legitimacy, the entire international order threatens to collapse. Although liberal internationalists are troubled by the ongoing legacies of racism and colonialism, the international legal order helps to constrain and punish human beings’ Hobbesian impulses. The modified Westphalian and pluralist spaces that lie in the middle at least to some extent represent a hope that the nation-state can become more legitimate by a thicker account that blurs traditional Westphalia’s boundaries. By recognizing the entwinement of public and private, domestic and international, they perhaps can reconstruct an international system that has more room for justice and fairness.

The challenge thus posed for the resulting climate change narrative is not simply whether divergent perspectives can be interwoven. Rather, the more foundational question is whether a legitimate model of transnational regulatory governance can emerge that looks inside the opaque and transparent presumptions of the Westphalian model. Or more specifically, can climate change litigation represent an evolving world order that acknowledges the concerns of each of these narratives?

IV. Re-Envisioning Transnational Regulatory Governance? This Part attempts to engage those questions. It begins by looking at the ways in which the substantive, structural, and conceptual dialectics of international law limit our approaches to problems like climate change. It then explores the possibilities for a “thirdspace” approach to help move discourse beyond these balkanized categories.

A. Beyond Dialectical Relationships 94 Sherene H. Razack, When Place Becomes Race, in RACE, SPACE, AND THE LAW: UNMAPPING A WHITE SETTLER SOCIETY 1 (Sherene H. Razack, ed., 2002). 95 See id. at 3. 96 See supra Sections III.A–III.D.

Our conversations about both international law and climate change are constrained by the available boxes for discourse and the dialectical relationships that we create around them. This difficulty infuses the way in which we write and teach about law, and poses barriers to cross-cutting work. For example, I have often been asked on job interviews whether I am “really” an international or an environmental person, or whether my interest in corporate responsibility is “enough” to make me a private international person. And as I approach tenure, the question of who is in “my area” begins to arise. This Section highlights three types of dialectics that limit our narratives: (1) substantive ones that invoke disciplinary boundaries and divisions within the law such as environment/human rights, law/science; (2) structural ones that order international legal system, such as public/private, subnational/national/supranational; and (3) conceptual ones that bound our analysis of how law, politics, and power interact in the international legal system such as opaque/transparent.97 The law’s treatment of these dialectics has evolved over time, and the next chapter of “international law” needs to reengage them as an integrating tool.

1. Substantive Dialectics In which box does climate change litigation belong? This is a question we have been forced to confront this spring at the University of Oregon School of Law as I prepare to teach a seminar on the subject for the first time. At first blush, this seems relatively simple to answer, as most people will readily categorize it as international environmental law. It was not difficult to persuade my colleagues that such a course should count towards both the environmental and international certificates.

However, such a categorization has a fundamental accuracy problem: none of the lawsuits or petitions actually involves international environmental law. The international and regional petitions claim violations of human rights or threats to world heritage. The national-level suits, especially in the United States, mostly involve efforts to force regulatory behavior through a combination of federal administrative and environmental law, or to change corporate behavior through tort law, more specifically public nuisance. The state court disputes follow the same basic pattern of the federal ones, but unsurprisingly, focus on subnational law.98 So, is my class about human rights law? World Heritage law? “Domestic” environmental law? Administrative law? Tort law?

Moreover, as I have written about previously, anyone of these legal categories only captures a piece of what actually matters about this litigation. One can tell an accurate narrative of human rights violations based on climate change—the Inuit do so quite powerful—but such a characterization is doomed to be partial. Climate change, like so

97 I have explored some of these dialectics in the specific context of the Inuit petition. See Hari M. Osofsky, The Inuit Petition as a Bridge?: Beyond Dialectics of Climate Change and Indigenous Peoples’ Rights, __ AM. INDIAN L. REV. __ (forthcoming 2007). 98 For a detailing of these suits, see Osofsky, supra note 9.

many other problems, fits in more than one box, and no legal category is capable of providing a container that captures it fully.99

As if locating climate change within law was not hard enough, one does not have to be an expert in the subject to realize that it involves many other disciplines. Justice Scalia’s remark in the oral argument in Massachusetts v. EPA was quite telling: “I told you before I’m not a scientist. That’s why I don’t want to deal with global warming, to tell you the truth.”100 Holly Doremus has provided powerful analysis of the scientization of politics in the context of natural resource regulation, arguing that both sides of environmental debates can use science as a tool.101 Her approach is easily applicable to the climate change context, as she herself has noted.102

Climate change does not, however, simply involve law and “science,” which is itself a category that includes many other disciplines. If one applies geographic and ecological analyses of scale, for example, the arguments in Massachusetts v. EPA can be understood as a continuous process of scaling up and scaling down analysis of science and law. The petitioners pushing for greater regulation would scale down—noting specific local impacts and the feasibility of federal regulation—while the respondents continuously scaled up, claiming that its supranational dimensions made EPA’s decision not to regulate appropriate.103 And this analysis does not yet touch upon anthropology, political science, psychology, and sociology, just to name a few disciplines that would have helpful and distinct perspectives on climate change litigation’s significance.

An approach in which we have to either put climate change in a substantive box or view it as a dialogue among boxes thus has fundamental limitations. Understanding climate change demands viewing it as a multidisciplinary problem. Furthermore, this discussion 99 For a discussion of this problem in the broader environmental rights context, see Hari M. Osofsky, Learning from Environmental Justice: A New Model for International Environmental Rights, 24 STAN. ENVTL. L.J. 71 (2005). 100 Transcript, Massachusetts v. EPA, 2006 WL 3431932 (U.S.) (Nov. 29, 2006), at 22–23. 101 See Holly Doremus, Science Plays Defense: Natural Resource Management in the Bush Administration, 32 ECOLOGY L.Q. 249 (2005); Holly Doremus & A. Dan Tarlock, Science, Judgment, and Controversy in Natural Resource Regulation, 26 PUB. LAND & RESOURCES L. REV. 1 (2005); Holly Doremus, The Purposes, Effects, and Future of the Endangered Species Act’s Best Available Science Mandate, 34 ENVTL. L. 397 (2004); Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn’t Always Better Policy, 75 WASH. U. L.Q. 1029 (1997). 102 She provides a passage from a memorandum by Frank Luntz on climate change as an example of the defensive approach. See Doremus, Science Plays Defense, supra note 101 at 255 (“The most important principle in any discussion of global warming is your commitment to sound science. American unanimously believe all environmental rules and regulations should be based on sound science and common sense. Similarly, our confidence in the ability of science and technology to solve our nation’s ills is second to none. Both perceptions will work in your favor if properly cultivated.”) (quoting The Luntz Research Companies, Straight Talk, The Environment: A Cleaner, Safer, Healthier America, at 138, available at http://www.luntzspeak.com/graphics/LuntzResearch.Memo.pdf). 103 I have analyzed this confluence in detail in Hari M. Osofsky, The Intersection of Scale, Science, and Law in Massachusetts v. EPA, __ OR. REV. INT’L L. __ (forthcoming 2007).

of climate change could easily be extended to many of the problems that international law scholars regularly analyze. For example, the raging debates over torture or enemy combatants, 104 as well as private law dilemmas over how Yahoo should handle its ties to multiple places,105 involve many areas of law and other disciplines.

2. Structural Dialects These difficulties are not simply substantive, however. They go to the very heart of units that we use to structure the international legal system. More binaries abound in unhelpful ways: Is climate change a domestic or international problem? If domestic, is it state or federal? Is it public or private?106

The problem with these questions is not simply that they all demand a “both/and” rather than an “either/or” answer if one were to answer them meaningfully.107 More fundamentally, each of the questions includes assumptions about what international law is and how we structure it.

A brief examination of scale in the above-described four approaches is instructive. If we assume Brenner’s second definition of scale as level of governance,108 how should we envision international law? As illustrated by the following diagrams, multiple possibilities exist:

104 For an example of recent discussion of these issues, see Symposium, War, Terrorism, and Torture: Limits on Presidential Power in the 21st Century, 81 INDIANA L.J. 1139 (2006). 105 See Paul Schiff Berman, The Globalization of Jurisdiction, 151 U. PA. L. REV. 311, 516 (2002) 106 I have asked these questions in the context of the Massachusetts v. EPA case. See Osofsky, supra note 103. 107 For a discussion of “both/and also logic,” see SOJA, THIRDSPACE, supra note 56, at 5. 108 See BRENNER, supra note 27, at 9.

Westphalian Models?

International

National

Subnational

International

National

Subnational

National

International/Subnational

National

International/Subnational

A Pluralist Model?

Supranational:Regional

Supranational:International

Subnational:Local

Subnational:State

National

InternationalLawmaking

Supranational:Regional

Supranational:International

Subnational:Local

Subnational:State

National

InternationalLawmaking

Should we view scale hierarchically, as my diagrams of Westphalian models attempt to visually represent? If we do, do we order the hierarchy based on geographic extent (the supranational belongs on top), formal power (the nation-state belongs on top), or effective power (unclear which level might belong on top)? How tall and wide should we make each piece of the hierarchy? Or, if one eschews hierarchy and envisions a hybrid process of international lawmaking, at what point—if ever—does one stop adding circles? Are those circles really containers, as envisioned here, or are they more fluid, flowing into one another? And I have not even included a diagram for the critical approaches because so many possibilities abound for how one might reconstruct after deconstruction, and it is not clear how any of them might be acceptable given the inequalities of power and resources that critical accounts of international law highlight.

These questions are not simply romps through law and geography theory, but actually have real world implications, as the context of climate change reveals. Which version of international law one chooses—assuming one has to pick a theoretical box—

fundamentally restructures the narrative of what matters in ways that might have policy implications. The more one moves away from traditional Westphalia, for example, the less plausible it is to envision solving climate change by a treaty between nation-states, even if such a treaty were politically feasible.109 And an argument emerges that such a treaty regime must somehow engage the range of actors that matter—both nongovernmental and subnational—more directly than through their contribution to the nation-state’s position and regulatory power.110

3. Conceptual Dialectics These substantive and structural problems frame the conceptual dialectics that constrain current discourse, and also point towards the move beyond dialectical analysis that forms the focus of the next section of this piece. In particular, the opaque/transparent dialectic that Ford unpacks and that serves as the frame of Part II of this paper exemplifies the conceptual problem and the need for both/and solutions.

To do so, especially because I have been pushed—rightly so—to make my analysis less jargony, I want to push deeper into what “opaque” and “transparent” mean. Namely, I want to leave law and geography behind for a moment, and dip more directly into these concepts in the geographic literature and, in particular, introduce Edward Soja, who was also present at that 1996 symposium that Richard Ford organized111 and will figure heavily in the final section of this Part. Soja, in Postmodern Geographies: The Reassertion of Space in Critical Social Theory, provides the following account of opaque and transparent spaces:

The ‘illusion of opaqueness’ reifies space, inducing a myopia that sees only a superficial materiality, concretized forms susceptible to little else but measurement and phenomenal description: fixed, dead, and

109 Beyond the problems of the lack of U.S. and Australia participation in Kyoto and the unlikelihood of many countries who are parties meeting their Kyoto obligations, the treaty—if fully implemented—would only slow the rate of anthropogenic climate change. See RUSSIA AND THE KYOTO PROTOCOL: OPPORTUNITIES AND CHALLENGES (Anna Korppoo, Jacqueline Karas & Michael Grubb, eds. 2006) (exploring the issues facing Russia); Mindy G. Nigoff, The Clean Development Mechanism: Does the Current Structure Facilitate Kyoto Protocol Compliance?, 19 GEO. INT’L L. REV. 249 (2006) (critiquing the current CDM approach). For a technical analysis of the Kyoto Protocol, see LEGAL ASPECTS OF IMPLEMENTING THE KYOTO PROTOCOL MECHANISMS: MAKING KYOTO WORK (David Freestone & Charlotte Streck, eds., 2005). Although innovative, the Asia-Pacific Partnership on Clean Development and Climate is nonbinding. For a description of the meeting establishing the partnership, as well as reactions to it, see Fiona Harvey, FT Report – The World 2006, FT REP. 6, Jan, 25, 2006; Asian Environmentalism: More Hot Air, ECONOMIST 9, Jan, 14, 2006; Nigel Wilson & Andrew Trounson, Critics Rain Scorn on Climate Summit, AUSTRALIAN (Newspaper) 33, Jan. 14, 2006; Asia-Pacific Pact Members Launch Clean Energy Fund, available at http://www.scidev.net/News/index.cfm?fuseaction=readNews&itemid=2591&language=1 (last visited Feb. 10, 2006). 110 I have made that argument in Climate Change as Pluralist Legal Dialogue?. See Osofsky, supra note 53. 111 See supra note 30 and accompanying text.

undialectical: the Cartesian cartography of spatial science. Alternatively, the ‘illusion of transparency’ dematerializes space into pure ideation and representation, an intuitive way of thinking that equally prevents us from seeing the social construction of affective geographies, the concretization of social relations embodied in spatiality, an interpretation of space as a ‘concrete abstraction,’ a social hieroglyphic similar to Marx’s conceptualization of the commodity form. Philosophers and geographers have tended to bounce back and forth between these two distorting illusions for centuries, dualistically obscuring from view the power-filled and problematic making of geographies, the enveloping and instrumental spatialization of society.112

This quote captures quite well not only the conceptual problems facing Westphalia, but also the more fundamental issue of the divided boxes that law gives us to work with when we want to solve problems. We divide the world into neat Cartesian units—the nation-states—and then use them as the center-point of our international law model. Moreover, once we create that model, the nation-state becomes an abstraction; we ignore the foundational differences between the United States and Zambia because they are both “sovereign” and “equal.” How much should we look inside those maps, organize them differently, change their scale? 113 How does it affect our international law story?

The fight between the liberal internationalists and the neorealists with which this piece started highlights how much the answers to these questions matter. Posner and Goldsmith ground their rational-choice-based theory on a set of explicit assumptions that other scholars, like Paul Berman in his review of their book, have challenged. In particular, they assume—among other things—that states have definable national-level interests and should act based on those interests.114 These assumptions are both outcome determinative and reflect a particular view of how we should map the nation-state. The national level becomes a hierachically-superior scale and the nation-state serves as merely a container holding interests. With this geographical perspective, a very limited story of international law quite naturally results.

A similar approach undergirds Posner’s more recent claim that allowing human rights claims against corporations based on climate change under the Alien Tort Statute would be normatively problematic. In his draft piece, Posner makes not only the explicit 112 SOJA, POSTMODERN GEOGRAPHIES, supra note 25, at 7. 113 Political geographers have engaged these issues extensively. For a helpful summary of the issues that political geographers explore, see JOHN AGNEW, MAKING POLITICAL GEOGRAPHY (2002). For an analysis of the interactions between political geography and political science, see Alexander B. Murphy, “Living Together Separately”: Thoughts on the Relationship Between Political Science and Political Geography, 18 POLITICAL GEOGRAPHY 887 (1999). For a discussion of some of these issues in the law and globalization literature, see David Held & Andrew McGrew, The Great Globalization Debate: An Introduction, in THE GLOBAL TRANSFORMATIONS READER: AN INTRODUCTION TO THE GLOBALIZATION DEBATE 1 (David Held & Andrew McGrew, eds., 2d ed., 2003); see also Terence C. Halliday & Pavel Osinsky, Globalization of Law 32 ANNUAL REV. SOCIOLOGY 447 (2006) 114 See Berman, supra note 3.

assumptions about how such litigation might focus on corporations, but also implicit assumptions in his analysis of the costs and benefits of such litigation about where this litigation takes place and how law and policy interacts around it. Although the dismantling of these assumptions and the situating his normative arguments in broader context is beyond the scope of this piece,115 a brief note is in order about their geography. In order for Posner’s argument to have cogency, one has to map the world in a way in which one envisions U.S. courts decisions’ as developing “green-house gas policy for Australia, Ecuador, Sweden, and Chad”116 in a range of problematic ways that he describes. The boxes into which Posner places litigation and the nation-state frame a world-view in which one tells a story of human rights claims in U.S. courts about climate change as creating unfair outcomes for “poor people today.”117

Since I disagree with both Posner’s implicit and explicit assumptions and conclusions, it is tempting to argue against his narrative—as I plan to do elsewhere118—as one out of step with the realities of climate change regulation.119 But such a rejection would miss the central point that I am making here about the dangers of our conceptual dialectics. Namely, if we are simply fighting for whose story—of international law more broadly or of regulation of anthropogenic climate change in particular—wins the day, we miss the way in which our dialectical structures and approach constrain us. There is simply not that much room for synthesis between Harold Koh and Jack Goldsmith, who debated each other on March 7, 2007 at Yale Law School.120 Accepting a world in which one encamps and fights for one’s vision of law and policy—quite possibly an important normative move in the current moment—risks silencing discourse and eliminating nuance. This dilemma frames the final question that this article poses: Can and should one create “thirdspaces” for international law and for climate change litigation?

B. “Thirdspace” Approaches to International Law and Climate Change

Litigation?

In his book, Thirdspace: Journeys to Los Angeles and Other Real-and-Imagined Places, Edward Soja introduces Thirdspace as:

the space where all places are, capable of being seen from every angle, each standing clear; but also a secret and conjectured object, filled with illusions and allusions, a space that is common to all of us yet never able

115 I plan to write a book review of two books on climate change and environmental justice that responds to his arguments. 116 Posner, supra note 6, at 14. 117 Id. at 19. 118 See supra note 115. 119 Similarly, the one time in my life I felt strongly enough about an Op-Ed in the New York Times to write the editor was when Posner argued against Bush modifying his detention policy without acknowledging the dangers of Korematsu. It did not make the letters page, but I later posted a variation of it on IntLawGrrls. Mata Hari, Detainees, Internment, and Outsider Voices, http://intlawgrrls.blogspot.com/search/label/Detainees. 120 See http://www.yalefedsoc.org/calendar.html#3-8,

to be completely seen and understood, an ‘unimaginable universe,’ or as Lefebvre would put it, ‘the most general of products.’121

Soja does not simply leave the reader with this space that somehow contains all binaries, however. He goes on to explain that:

Thirding-as-Othering is much more than a dialectical synthesis à la Hegel or Marx, which is too predicated on the completeness and temporal sequencing of thesis/antithesis/synthesis. Thirding introduces a critical “other than” choice that speaks and critiques through its otherness. That is to say, it does not derive simply from an additive combination of its binary antecedents but rather from a disordering, deconstruction, and tentative reconstitution of their presumed totalization producing an open alternative that is both similar and strikingly different.122

In other words, rather than trying to produce something from the fight among opposing views, progress can be made by creating a space that somehow allows for all of the difference. When I envision thirdspace more concretely, particular moments of surprise and conceptual reconfiguring come to mind. I remember a story from a nonviolence workshop I attended of a woman who reacted to the threatening men coming at her on the dark, isolated street by acting as if she was mentally ill; she began talking to the trash can and the men left her alone. I also think of a moment in my career as a young litigator in which opposing counsel was about to file a motion against me because I had made a technical error. After I responded by acknowledging the mistake and also talking warmly about how I try to be as collegial as possible in the context of litigation, he replied with a little embarrassment that he tries to do the same. That motion was never filed. In a more academic context, I think of those delicious moments in writing where one suddenly breaks form and acknowledges the self and its stories rather than retaining careful third person distance. In each of those moments, there is a feeling of risk with possible consequences, but at the same time, in the choice of marginality, as Soja terms it, there is also an opening of new possibilities.123

This Part explores whether this concept of thirdspace might be useful in the context of international law and climate change litigation. It engages what it would mean to create a thirdspace in the current polarized discourse, which occurs in the broader context of fundamentally divergent constructions of nation-state spaces. From that base, it asks the critical normative question of whether a thirdspace approach might provide new possibilities for constructive progress.

1. Constructing a Thirdspace

121 SOJA, THIRDSPACE, supra note 56. 122 Id. at 60–61. 123 SOJA, THIRDSPACE, supra note 56, at 97–100.

This project of construction is quite a daunting one, which may be why Thirdspace did not set off an instant policy revolution. In practical terms, what would it mean to simultaneously acknowledge the validity of perspectives in intense conflict with one another? How can one view the nation-state as at the center of power, as one power source among many, and as an invalid product of subordination at the same time? This section renarrates climate change and international law in a way that attempts to answer those questions. In thirdspace, the four above narratives of climate change litigation—and other possible ones that I did not include—come together, but not in a synthesis. The suits and petitions help to shape nation-state approaches to their traditional lawmaking regarding climate change, serve as forms of lawmaking in their own right, and are constrained by the fundamental problems with the international legal system. The stories of this litigation do not build upon one another, but coexist as versions that each contains its own validity. Rather than choosing one narrative as truth that excludes the others, thirding allows for a recognition of each of their truths. Such an approach is not simply my striving for a “kumbaya” moment in which people who wildly disagree with one another sit down in a circle, hold hands, and find their common ground. Rather, it represents a recognition that an attempt to solve the problem of climate change through only one of these stories will utterly fail. The traditional and modified Westphalian narratives capture the role that treaty and customary international law must play in solving the problem, but they may understate the significance of other forms of lawmaking.124 Pluralist and critical approaches both acknowledge important, other sources of power, but their analyses of hybridity and attempts to move away from the valorization of the state often choose not to focus on the role that treaties should play.125

The point here is not that these approaches are incapable of telling complete stories or providing nuanced policy solutions, but rather than they tend not to because of where they focus. Transnational legal process tells an incredibly helpful narrative of the norm internalization process, which could help craft more thoughtful approaches to climate change litigation and policy, but the center of gravity of such proposals will simply be different than the hybrid models that might come out of a global legal pluralist account. We lose something if we include only one story. The value of thirding for international legal discourse more broadly was reinforced for me at a recent conference I attended at Yale Law School on whether a “new” New Haven School was emerging. The discourse throughout the day—which was at times somewhat fraught—moved primarily between three interrelated but conceptually distinct approaches to engaging international legal problems: (1) the law, science, and policy approach often referred to as the New Haven School; (2) transnational legal process; and (3) global legal pluralism.126 At the end of the day, in the final session, we puzzled over

124 See supra Part III.A & II.B. 125 See supra Part III.C. 126 I provided this description in my comment/question during the final panel of the day.

whether a new school of thought was emerging from some of the unities among an emerging generation of scholars whose work dances among these and other approaches.127 As this discussion took place, the room contained current Yale Law School students and professors, Yale Law School graduates who were professors elsewhere, and many scholars who have no affiliation with Yale, but often work very closely with that second group. In fact, the day before this gathering, the Junior International Law Scholars Roundtable—a group that includes junior, recently tenured, and soon-to-be professors—had met to discuss interdisciplinary in their work and many scholars from that gathering stayed for the Yale Journal of International Law symposium.128

I left this discussion with a number of questions, many of which were asked over the course of the discourse. Most fundamentally—a question with which Dean Harold Hongju Koh began—what does it mean to establish a school of thought?129 As I asked in the final session, how would such a school of thought interact with those three threads and how much conceptual unity is needed to establish such a school? And as we grappled with labels, important questions—from a number of people throughout the day—emerged about how to avoid devaluing the “original” New Haven School and excluding those who have no affiliation with Yale?130

In my view, many of the tensions over the course of the day surrounded either/or choices and the not-infrequent moments of progress occurred when we allowed ourselves to engaged in thirding. So, for instance, if we were choosing between an “original” and “new” New Haven School, the law, science, and policy approach was brought into conflict with whatever was viewed as coming after it.131 When we decide whether or not to use a Yale-affiliated moniker, we face decisions over embracing the power that such a name brings and the problem of inclusion/exclusion.132 The two middle panels of the day, however, simply danced among the three approaches without taking a position on these either/or questions. For instance, Rebecca Bratspies, Janet Levit, Melissa Waters, and I gave presentations that drew from all three threads and did not attempt to answer the question of which one should be chosen as the “new” New Haven School. We played with future directions for international legal thought and built upon each other’s ideas, but did not try to achieve some synthesis that would present a

127 The Opinio Juris website has a summary of the discourse. See Jessica Karbowski, Is There a ‘New’ New Haven School, http://www.opiniojuris.org/international_legal_theory_and_teaching/ (Mar. 11, 2007). 128 The events had intentionally been organized in tandem. 129 See Harold Hongju Koh, Is There a “New” New Haven School of International Law?, http://www.yale.edu/yjil/Misc/2007%20new%20new%20haven.ppt. 130 For a brief summary of the session that does not include the question period, see Karbowski, supra note 127. 131 W. Michael Reisman made this point in the first session. See Jose Minan, Historical Perspectives on the New Haven School, http://www.opiniojuris.org/posts/1173668170.shtml. 132 See supra note 130 and accompanying text.

unified school of thought to the group.133 That approach was facilitated by the fact that we share a great deal of common ground in our interests and values. This rather long example leads directly back to the context of climate change litigation. This both/and approach was particularly evident when Dean Koh, who was moderating the panel, asked the first question about how we would apply our theoretical approaches to Massachusetts v. EPA. We each told separate, but interrelated, narratives from our conceptual perspectives about why this case mattered. We referenced each other, but did not attempt to tell one story. Rather, the discussion of the case’s importance through multiple lenses simply included whatever insights we provided.134

The mutual coexistence of the either/or and the both/and at this conference—a dynamic which is replicated in different variations at most academic conferences or policy discussions—only raises further issues. Arguably both framings provide important insights. In law and policymaking, we have to make hard choices; in those choices either/or dichotomies may be unavoidable. At the end of the day, for example, there either is or is not a “new” New Haven School and each key actor will make specific choices about how to approach the problem of climate change. However, despite the existence of those choices and differences, taking time to allow the different and overlapping narratives to coexist may allow for better decisions in that final moment. The openness and play of thirding allows for riffs—not unlike those Keith Aoki has described in the context of the creation of blues music135—in which one can potentially achieve an understanding unavailable from the trenches of conflict.

2. Implications of Thirding

Acknowledging the potential value of thirding does not, of course, resolve when such an approach might be appropriate and how it fits into the broader discourse on climate change litigation and international law. This section explores that terrain. It suggests that an effort to create thirdspace would be particularly helpful in the period before a final either/or decision must be made. Discussions about climate change regulation often are framed in terms that reflect a particular view of the nation-state and its role in international law without acknowledging other possibilities. So, for instance, a proposal might focus on the future of the international treaty regime with little acknowledgement of how such a regime might interact with nonstate or substate actors. Or, conversely, a dialogue about AB 32,136 California’s new law governing greenhouse gas emissions, might not situate it in the broader context of other “international” regulatory efforts taking place.

133 For a summary of this panel, see Jessica Karpowski, YCS Applications of the New Haven School: Professional Scholarship, http://www.opiniojuris.org/posts/1173668896.shtml. 134 See id. 135 See Keith Aoki, Distributive and Syncretic Motives in Intellectual Property Law (with Special Reference to Coercion, Agency, and Development), 40 U.C. DAVIS. L. REV. 101 (2007). 136 California Global Warming Solutions Act of 2006 (AB 32), Cal. Health & Safety Code §§ 38500 et seq.

This tendency to treat different approaches to climate change regulation as discrete options likely reflects a practical reality: It would be impossible to simultaneously consider all of the efforts taking place on climate change with every regulatory decision. Such an approach would be time-consuming, burdensome, and potentially paralyzing. Moreover, although it would be helpful to approach climate change regulation more holistically and systematically, regulatory redundancy arguably allows for innovation and improves the possibility of getting emissions under control.137

A preference for thirding in the early stages of decisionmaking, however, does not require an impossibly complex process that includes every conceivably relevant factor. Rather, it dictates a more open stance towards what those factors are. It suggests that while people are crafting the next climate change treaty, they should consider how different narratives of that agreement might change how it should be framed. Similarly, in contemplating litigation, substate actors should consider how thinking of it as influencing national policy versus as international lawmaking in its own right should influence their strategy. By positing that seemingly—and perhaps actually—incompatible worldviews can have simultaneous explanatory value, a thirdspace approach opens up the possibility of escaping the boxes that constrain legal thinking. If we choose to take a stance of radical openness138 and view situations from multiple narrative perspectives simultaneously, we likely end up with more options on the table before our final need to make an either/or decision. And sometimes those options might change what the choices are. Being open to a range of perspectives, however, is always easier when a high level of congruence exists. The thirding that arguably occurred on my panel at the “new” New Haven School conference was a riff among five people who fundamentally agree with one another. But taking thirdspace seriously means considering how to deal with fundamentally divergent narratives. Or, to put it more concretely, if we return to Eric Posner’s new piece—which arguably represents a convergence of the battles over international law and the discussions about how climate change litigation should fit into a regulatory scheme—what is the value of having it occupy the same space as the rebuttal to it that I plan to write?139 Posner’s piece focuses on a particular type of potential climate change litigation, international human rights claims in U.S. courts against corporations under the Alien Tort Statute. My rebuttal will suggest—among other arguments—that his assumptions and

137 For a discussion of the value of regulatory redundancy, see Robert A. Schapiro, Towards a Theory of Interactive Federalism, 91 IOWA L. REV. 243, 288–90 (2005); cf. William W. Buzbee, Recognizing the Regulatory Commons: A Theory of Regulatory Gaps, 89 IOWA L. REV. 1 (2003) (exploring the way in which regulatory overlaps can lead to under- rather than over-regulation). 138 SOJA, THIRDSPACE, supra note 56, at 5. 139 See supra notes 6, 115–117.

analysis lack context in a variety of ways, such as how the U.S. approach to regulating greenhouse gases compares to other countries, the range of climate change litigation within which such a suit would be occurring, or the broader analyses of climate change and environmental justice.140 If one chooses to view those two very different analyses as part of the same space rather than as simply posing an either/or, better analysis emerges. Someone contemplating a human rights suit over climate change arguably would be well-advised to consider both his concerns and my justifications. Even if the petitioner disagreed with one of us strongly, as seems likely given the divergence in our views, treating both approaches as relevant narratives allows for a fuller discourse about when such a suit would be appropriate and how it could be framed to avoid the issues that he raises. That discourse does not necessarily result in a synthesis of our views, but ensures that the chosen narrative reflects the multiplicity of narratives that exist. Such an approach, at first blush, may seem deceptively simple. It begins to sound a bit like the motto of the Independent Party of Yale Political Union, which I chaired as an undergraduate, “hear all sides.”141 But such an openness is rare in the current discourse over both climate change litigation and international law. I have had colleagues who view themselves as moderates agonize to me over how they can possibly situate their work in the current climate. Analyses of the Kyoto Protocol and future treaties, of climate change litigation, and of how to structure cap-and-trade regimes tend to occur relatively separately from one another. I encounter mostly non-overlapping groups of people in discussions over climate science, climate law, international legal theory, and race and social justice. Until we make more of a commitment to thirding, we box our discourse in unhelpful ways.

140 See supra notes 115–117. 141 The Independent Party of the Yale Political Union, http://www.yale.edu/ip/javaindex.htm.

V. Concluding Reflections

This article opens with a claim that we are at a crucial juncture in the discourse over climate change and international law. It concludes by suggesting that our response to this crisis should not be one of foreclosing possibilities. If we are to make progress on difficult, cross-cutting issues, we must step outside of our camps, labels, and loyalties to engage in serious, creative thinking. Such an approach does not preclude a hard fight for our values. We face hard either/or choices with respect to both our international legal commitments and our response to global climate change. However, as each version of “us” engages in such a struggle, we must find the moments in which thoughtful dialogue is possible. As I said to that litigator who was contemplating a motion against me, litigation forces us to be in adversarial positions at times, but I try not to be in them whenever possible. Law and geography approaches serve as a helpful tool in such an effort. By pushing us to interrogate our geographic assumptions, they provide possibilities for re-ordering and re-envisioning. Such analyses do not eliminate core areas of disagreement, but they perhaps create more opportunities for us to dwell in thirdspace.

PROPOSAL 15

Joel Paul paulj@uchastings.edu

The Geopolitics of Private International Law

Private international law reflects and shapes the contours of public and private law in ways that allocate power among public and private actors. When courts decide on the reach of domestic and foreign law or on the appropriateness of the forum they are describing the relationship between the forum’s public law and the market at a particular historical moment. In so doing they are also positing both the relationship between the judiciary and the political branches and the relationship between the forum state and the world. In the United States the foundation of private international law has been the doctrine of international comity. Courts have responded to America’s changing role in the world by deploying comity in a variety of ways to accommodate a shifting geopolitical context. This paper examines how comity has been transformed by U.S. courts in response to geopolitical events during three historical moments. During the first historical moment U.S. courts in the nineteenth century tried to use comity as a device for reconciling free and slave states while containing the spread of slavery. Comity in fact empowered the courts of the forum state to resist the law of slave states. “Deference” to the law of foreign sovereigns meant in actual practice that the forum state would only defer to foreign law that was not inconsistent with fundamental public policy, such as a prohibition against slavery.

The second historical moment began after containment failed and the ensuing Civil War crushed the states’ rights movement. In the latter half of the nineteenth century U.S. courts re-fashioned the comity doctrine to facilitate the growth of a national industrial economy that could compete with European powers. Courts still spoke of “deference,” but now the concept of resisting foreign law gave way to the idea of respecting the autonomy of private parties. In other words comity was enlisted in the service of facilitating the growth of markets. This turn toward market liberalization gained momentum after the Second World War for two inter-related reasons. First, as multinational enterprises began to dominate the economy, the growth of international trade and commerce depended upon the willingness of courts to allow parties to opt out of local law. Second, as the United States confronted the threat of Communism, courts relied on the comity doctrine as a means of both re-affirming the liberal values of a private market and deferring to the executive branch in the conduct of foreign relations.

The third historical moment began after the fall of the Berlin Wall and the collapse of Soviet Communism. U.S. courts re-formulated international comity to re-define America’s relationship to the “global economy.” Deference now meant something quite different: not respect for either foreign law or private parties, but respect for the Market itself. In this new geopolitical reality the Market assumed a will and personality that demanded obeisance. Courts even subordinated fundamental public policies designed to

protect the autonomy of private parties, such as competition policy, in order to serve this new sovereign. As the Supreme Court opined in its famous 1895 opinion in Hilton, “Comity is neither a matter of absolute obligation on the one hand nor of mere courtesy and good will... it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another...” Comity has been described inconsistently by courts and commentators as a principle of choice of law, a synonym of private international law, a rule of international law, a moral necessity, expediency, reciprocity or a consideration of international politics. As a foundation for private international law, comity seems a peculiarly vague, ephemeral, and unstable concept. Indeed, it is precisely these qualities that have allowed comity to mutate from one historical context to another in ways that seem contradictory.

The doctrine of comity was introduced into American law by U.S. Supreme Court

Justice Joseph Story in his Commentaries on the Conflicts of Law. Justice Story asserted that the comity doctrine was the basis for “private international law” – a name he coined. Story characterized private international law as a sub-category of public international law: Public and private international law were a unified whole with a common foundation based on public law. Justice Story borrowed the concept of comity from Lord Mansfield’s opinion in Somerset v. Stewart, holding that a British court could not be required to recognize the property rights of a U.S. slaveholder in his slave. Story, like Mansfield, asserted that courts were not legally obligated to recognize foreign law, but rather, courts could choose to apply foreign law out of comity. Story believed that adherence to the comity doctrine could contain the problem of slavery by allowing northern free states a legal basis for refusing to recognize the rights of slaveholders. Story employed the rhetoric of deference and respect for a foreign sovereign as a sly strategem for asserting the supremacy of the forum’s own law. The forum court was obligated to resist an external threat to the forum’s public policy. Comity meant deference in theory, but resistance in fact.

In the latter part of the nineteenth century courts and scholars came to refer to two

distinct fields of public and private law. This separation of public and private spheres insulated the private market from the reach of state power and thereby facilitated the growth of capital markets in the United States. At the same time that private law became estranged from public law generally, the unity of public and private international law disintegrated. By the twentieth century public international law had abandoned private international law at the doorstep of municipal law. Private international law became a subject of domestic (mostly state) private law. By re-christening private international law “conflicts of law,” lawyers and judges reinforced the idea that it had no familial relationship to the grand principles of public international law. Conflicts of law was a poor stepchild to municipal law with no higher ambitions. Still, U.S. courts continued to speak of the application of foreign law as a matter of respect for foreign sovereigns, rather than obligation.

Two inter-connected developments after World War II transformed comity into an obligatory principle. First, the growth of international trade and multinational enterprises led to increasing numbers of contracts that included choice-of-law, choice-of-forum, and arbitration clauses. U.S. courts often deferred to these contractual provisions out of comity even when the provisions led to results that were manifestly inconsistent with fundamental U.S. public policies. The courts explained that they were “bound” to respect both foreign sovereigns and the autonomy of private parties. Comity began to shift from a matter of judicial discretion to one of obligation.

The second related development was the Cold War and the U.S. leadership in

promoting the spread of market democracy as a bulwark against Communism. Courts often justified their deference to foreign law as a way of avoiding interference with the executive’s conduct of foreign relations. The most famous occasion for this approach was the Court’s decision in Sabbatino applying the act-of-state doctrine to bar a claim arising out of Castro’s expropriation of U.S. property in Cuba. The act-of-state doctrine operates like a super-choice-of-law rule that supersedes the forum’s public policy and bars a U.S. court from questioning the validity of a foreign act of state in the foreign territory. The act-of-state doctine rests on both comity and constitutional underpinnings of the separation of powers. In Sabbatino, the Court refused to sit in judgment on the legality of the Cuban expropriation in the absence of a treaty or a clear consensus as to what customary international law required. Rather than appeal to the interests of the global capital market in protecting property rights, the Court noted the complexity of foreign relations and the risk of embarrassing the executive in managing foreign affairs.

Liberal trade policy and the Cold War led to a bold new rhetoric of comity that

obligated courts to apply foreign law, even when the consequence was inconsistent with basic public policy. Paradoxically, comity functioned both to unify and separate public and private law. Comity bridged the public and private realms by introducing public policy considerations into the discussion of private law disputes. For example, courts applying what the Restatement called a “jurisdictional rule of reason,” were compelled to balance public and private interests in deciding on the appropriate reach of prescriptive jurisdiction. At the same time, comity also limited the extraterritorial reach of public law to protect the expectations of private parties.

With the end of the Cold War, the Court seemed to back away from the idea of

comity as preserving executive supremacy in foreign relations. In Hartford Fire Insurance, the Court signalled in 1993 that it did not regard the doctrine of international comity as barring claims against foreign anticompetitive practices, even if those practices were expressly permitted by foreign law. Most commentators read the Hartford Fire Insurance opinion as repudiating the doctrine of comity, and some concluded comity was now dead.

Reports of comity’s demise were greatly exaggerated, however. Globalization has

produced a new incarnation of comity. The most vivid example of the new comity appeared in the Supreme Court’s 2004 decision in F. Hoffman-La Roche, Ltd. v Empagran, S.A. Foreign plaintiffs brought a class action suit under the Sherman Antitrust

Act against foreign defendants who had conspicuously conspired to fix prices in the worldwide market for bulk vitamins. The Court opined that the statute had to be read consistently with the principle of comity to avoid offending foreign sovereigns. The Court relied in part on the Charming Betsy principle that all legislation should be construed consistently with international law. Accordingly, it found that the plaintiffs had no cause of action where the admittedly significant effect on U.S. commerce was independent of the effect on foreign commerce. Writing for the majority Justice Kennedy asserted that this

.. rule of statutory construction cautions courts to assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws. It thereby helps the potentially conflicting laws of different nations work together in harmony – a harmony particularly needed in today’s highly interdependent commercial world.

The Empagran decision cannot be read as merely deferring to the wishes of

private parties. To the contrary, the Court held that the power of private parties to compete in a market freed from collusion had to be subordinated to the needs of the Market itself. The Court deferred not to the will of individual private parties, but to the presumed will of the Market.

Key to the Court’s justificatory rhetoric is the image of the “highly

interdependent” global market. Similarly, the Court in Mitsubishi Motors enforced a choice-of-law provision out of “sensitivity to the need of the international commercial system for predictability.” Again, in The Bremen the Court cautioned that “[w]e cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts.” And in Scherck the Court stressed the damage that “a parochial refusal by the courts” to enforce a foreign arbitration agreement would do to “the fabric of international commerce and trade.” In each of these cases the Court deferred to the Market as against an important U.S. public policy embodied in a federal statute for the purpose of protecting private parties from exploitation.

The appeal to a globalized market as a justification for limiting domestic

jurisdiction asserts that the United States depends on foreign commerce in a way that limits our autonomy. We cannot have commerce on our own terms; we are no longer masters of our economic destiny. Comity demands not merely respect for foreign sovereigns or the executive branch or even the autonomy of private parties; comity now demands respect for the Market itself. U.S. courts have endowed the Market with its own autonomous will and personality in rhetorical terms that echo the way courts once described the sovereign’s will. In this new globalized economy courts serve a higher master and the sovereign’s will must yield to the powerful embrace of the Market.

PROPOSAL 18

Catherine Powell Fordham Law School

Tinkering With Torture in the Aftermath of Hamdan:

Testing the Relationship between Internationalism and Constitutionalism Since September 11, critics of domestic incorporation of international law have

made two central arguments about the role of the democratic process in negotiating the relationship between international law and our Constitution. In one arena – federal courts – these critics have argued for greater democratic review of international law before courts can be permitted to use these sources in interpreting domestic law (and, specifically, the Constitution). In this account, reliance on international law -- even binding ratified treaties—is not true to our constitutional ideals of democratic accountability, self-governance, and popular sovereignty, in the absence of greater democratic deliberation. In another arena – the executive branch – some of these same critics have argued for less democratic review of international law in the context of the President's War on Terror. Here, the critics assert that the President is not bound by laws that deepen the democratic basis of international law, for example, implementing legislation that incorporates and validates the international prohibition on torture. In this view, critics claim that application of international law constraints – even treaties that are not only ratified but implemented into legislation by both houses of Congress – would impermissibly encroach on the President’s power to wage war as Commander-in-Chief.

In reviewing what are essentially two core separation of powers debates concerning domestic incorporation of international law, this paper explores the tension between embracing the democratic process as the litmus test for the legitimacy of law in one context, while running from the democratic process as an infringement of presidential powers in the other context. Why are critics quick to challenge international law as lacking a proper democratic foundation, even while they dismiss the democratic legitimacy that congressional sharing of war power brings. The underlying subtext, of course, is that war is different and the President’s role in war singular. War justifies, in fact calls for, less democratic deliberation, so the argument goes. We need a single decision-maker – and that would be the President – to act with dispatch and secrecy in a war. Moreover, the War on Terror, these critics argue, is like no other war.

Hamdan v. Rumsfeld firmly rejects this view. As Jack Balkin notes, Hamdan is a

“democracy-forcing” decision. It rejects executive unilateralism and calls on the President to consult with Congress in developing rules concerning detainees. At the same time, the decision affirms the relevance and applicability of international law, and the use of the democratic process for negotiating the relationship between international and domestic law.

Because Hamdan affirms the value of democratic deliberation over international law, this paper takes seriously the democratic deficit critique that critics of domestic

incorporation of international law make. In taking the critique seriously and applying it more consistently to the War on Terror, this paper asks what does international law stand to gain or lose from greater democratic accountability over international law. Bridging international law and constitutional law scholarship, the paper examines the costs and benefits of greater democratic accountability in the context of provisions concerning torture in the Military Commissions Act passed in the aftermath of Hamdan.

PROPOSAL 5

Kenneth M. Rosen University of Alabama School of Law

Introducing International Business Law Pedagogy to its Public:

Teaching the Next Generation International Business Transactions Course

Many continue to describe international business transactions as a private international law course. Although private law constitutes a major component of an IBT course, it hardly characterizes the entire class. Public law – both domestic and international – critically affects businesses that operate across borders. But while IBT courses previously have included a few public international law topics, such as international trade rules and expropriation, it is time to more generally embrace public law and the regulation of businesses as part of the IBT curriculum for the twenty-first century. Accordingly, my paper first would underscore the need for additional attention to public law in IBT courses. Having formerly worked on international issues as Special Counsel at the U.S. Securities and Exchange Commission, I am especially familiar with this need. As businesses globalize, regulators themselves recognize the need for both coordination and harmonization of actual rules. In the securities world, for example, the existence of the International Organization of Securities Commissions reflects the need and desire to institutionalize such efforts. Even the most traditional aspect of IBT courses, sales law, has become a matter of public treaty law with the introduction of the Convention for the International Sale of Goods. And as businesses increasingly look towards foreign establishment, outsourcing, and complex joint ventures as the method to spread their operations across borders, the public regulations applicable to businesses become far more significant. The mission to bring public law, including public international law, to IBT students, is particularly important given that for many students, the IBT course may be their only major course work in international law during their law school studies. After establishing the need to enhance the existing curriculum, I would provide a model for incorporating additional public law topics into an IBT course based on the class that I teach at the University of Alabama. The scope of that class reaches issues not covered by some traditional IBT courses. Beyond covering simple sales transactions and distributorship agreements, for instance, my course explores more complex joint ventures and mergers and acquisitions transactions and antitrust and other regulatory entities potentially interested in them. Additionally, in discussing possible financing to facilitate international transactions, I move beyond traditional coverage of letter of credit law to discussions of assistance available to businesses through government programs, international organizations including development banks and other institutions, and global capital markets.

I combine such discussion with classroom exercises, including a simulation exercise that allows teams of students to use different techniques to help clients take their businesses abroad and that forces students to confront the effect of public law issues on the different paths chosen. I also draw on lessons from courses at business schools and universities abroad that traditionally placed greater emphasis on the regulation of businesses in an international context.

The AALS Midyear Meeting and Joint AALS and ASIL Conference on International Law would provide a particularly appropriate venue to begin a more active dialogue on the nature of IBT courses.

PROPOSAL 4

Miguel Schor mschor@suffolk.edu

Mapping Comparative Judicial Review

The Article explores the questions scholars ask about comparative judicial review

and critically assesses the answers they provide. Scholars ask three, interrelated questions. (i) The foundational question is why has judicial review (almost) conquered democracy. While federalism played an important role in the modest success of judicial review before the Second World War, demands for human rights drove the expansion of judicial power in the second half of the twentieth century. The Article argues that theories that seek to explain the worldwide expansion of judicial review by reducing this phenomenon to the self-interest of elites fail to appreciate the complexity of the historical processes that led to the flowering of judicial review. (ii) One consequence of this global expansion of judicial power is that parliamentary supremacy has become a critically endangered constitutional species. The really big question scholars ask, therefore, is what does the loss of institutional diversity mean for democracy. Scholarly reaction is sharply split between judicial optimists and judicial pessimists. (iii) Another consequence of this global transformation is that polities adopted a dizzying array of mechanisms for implementing judicial review. The question this raises is how best to understand the rich, institutional diversity of judicial review. Lumpers look at the brave new world of judicial review and see commonalities rather than differences. Splitters, on the other hand, look at the same constitutional landscape and argue that the differences jut out more prominently than do the commonalities.

The Article concludes that a critical review of the comparative constitutional

imagination reveals three, hidden maps whose illumination is critical to our understanding of judicial review. The first is the relationship between the emergence of judicial review and the emergence of democracy. Students of democracy vigorously debate the relative importance of elite bargains and citizen demands whereas the leading scholarly accounts of judicial review discount the importance of citizens and emphasize the role of elites. Our understanding of the emergence of judicial review would be improved if the people were brought back into the picture. The second is the role that constitutional courts play in maintaining or undermining democracy. The argument for or against judicial review should turn not on normative arguments, however, but on the role, if any, that judicial review plays in the construction of democracy. The third is that our understanding of judicial review would be improved if scholars were to deemphasize the American experience. Scholarly maps of judicial review have for too long viewed the world through the prism of the exceptional American Supreme Court. In short, questions about the emergence and maintenance of democracy and the problematic relationship that the United States has to the world’s constitutional democracies lie at the root of our understanding of comparative judicial review.

PROPOSAL 16

David Sloss Saint Louis University School of Law

You will note that key sections of the article have not yet been drafted. If the paper is selected for presentation at the conference, I would fill in many of the gaps before May 15.

The Original Understanding of the Treaty Power:

Lessons from the 1790s

During a four-year period from 1793 through 1796, U.S. federal courts dismissed more than twenty admiralty cases on the grounds that a treaty barred the exercise of federal jurisdiction. Every case that the courts dismissed on jurisdictional grounds fell squarely within the statutory grant of admiralty jurisdiction, as codified in the Judiciary Act of 1789.1 In every case, the courts invoked a 1778 treaty with France to supply the jurisdictional rule of decision.2 In other words, in more than twenty cases where a federal statute granted jurisdiction, but a treaty barred jurisdiction, the courts applied the earlier-in-time treaty instead of the later-in-time statute. From a contemporary perspective, these 1790s admiralty cases present a puzzle because they appear to conflict with the later-in-time rule, which holds that a later-enacted statute trumps a prior inconsistent treaty.3 This essay examines these admiralty cases in an effort to explain how American jurists in the late eighteenth century viewed the status of treaties in the U.S. legal system, and the relationship between statutes and treaties.

The later-in-time rule presupposes that treaties and statutes have equal rank within

the domestic legal system. If statutes outranked treaties, or if treaties outranked statutes, there would be no need for a later-in-time rule, because the hierarchically superior type of law would take precedence. In a recent article, Vasan Kesavan contends that the Framers understood the Supremacy Clause to mean that statutes are hierarchically superior to treaties within the U.S. legal system.4 The 1790s admiralty cases that are the focus of this essay belie his claim. Those cases are consistent with the view that treaties are hierarchically superior to statutes. They are also consistent with the view that treaties and statutes have equal rank. However, analysis of those cases demonstrates that the lawyers who litigated them and the judges who decided them – most of whom were personally

1 An Act to Establish the Judicial Courts of the United States, 1 Stat. 73, 76-77 (Sept. 24, 1789). 2 Treaty of Amity and Commerce, Feb. 6, 1778, U.S.-France, reprinted in 2 Treaties and Other International Acts of the United States of America 3 (Hunter Miller ed., 1931) [hereinafter 1778 Treaty with France]. The United States and France signed three treaties in 1778, but the Treaty of Amity and Commerce is the key treaty for the purpose of this essay. 3 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 115 (1987) [hereinafter, Restatement]. The later-in-time rule became an entrenched feature of U.S. jurisprudence in the late nineteenth century. See Chae Chan Ping v. United States, 130 U.S. 581, 602 (1889); Whitney v. Robertson, 124 U.S. 190, 194 (1888); Edye v. Robertson, 112 U.S. 580, 597-98 (1884); The Cherokee Tobacco, 78 U.S. 616, 621 (1871). 4 Vasan Kesavan, The Three Tiers of Federal Law, 100 NORTHWESTERN UNIV. L. REV. 1479 (2006).

involved in drafting and ratifying the Constitution – did not believe that statutes were hierarchically superior to treaties in the U.S. constitutional system.

The later-in-time rule also presupposes that at least some treaties regulating

matters within the scope of Congress’ Article I legislative powers have domestic legal force in the absence of implementing legislation. If treaty provisions within the scope of Article I always required implementing legislation, there would be no need for a later-in-time rule. Every conflict between a treaty and a statute would be resolved in favor of the statute, as a matter of domestic law, because treaties that occupied the same field as federal statutes would have no domestic legal force. Professor Yoo has argued that the Framers understood the Constitution to mean that treaties regulating matters within the scope of Article I always require implementing legislation to have domestic legal effect.5 This essay demonstrates that the consistent practice of federal courts in the 1790s belies that claim. Federal courts in the first decade after ratification of the Constitution consistently applied Article 17 of the 1778 Treaty with France to regulate the exercise of federal jurisdiction, a matter clearly within the scope of Congress’ Article I powers. Moreover, the courts gave effect to Article 17 despite the fact that Congress never enacted legislation to implement Article 17, and Congress did enact legislation that appeared to conflict with Article 17.

This essay consists of four parts. Part One provides the factual and legal

background necessary to understand the admiralty cases that are the focus of this essay. Part Two analyzes a set of about twenty-five admiralty cases that were litigated in U.S. federal courts during a four-year period from 1793 through 1796. All these cases implicate the relationship between Article 17 of the 1778 treaty with France and Section 9 of the 1789 Judiciary Act, which granted federal district courts “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction.”6 Part Three considers four possible explanations for the fact that the courts consistently applied the 1778 treaty with France as a jurisdictional rule of decision, despite an apparent conflict between the treaty and the later-enacted statute. This analysis sheds light on the question of how American jurists in the 1790s understood the status of treaties in the U.S. legal system and the relationship between statutes and treaties. Part Four discusses the relevance of these 1790s admiralty cases to contemporary scholarly debates about the status and effects of treaties in the U.S. constitutional system.

It bears emphasis that the analysis in this essay relies heavily on unpublished

records of Supreme Court decisions, which are available only in the Supreme Court archives.7 During the 1790s, the Supreme Court resolved numerous cases without

5 See John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 COLUM. L. REV. 1955 (1999); John C. Yoo, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, 99 COLUM. L. REV. 2218 (1999). 6 An Act to Establish the Judicial Courts of the United States, Sec. 9, 1 Stat. 73, 76-77 (Sept. 24, 1789). 7 Some of the unpublished documents in these cases have been collected in THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789-1800 (Maeva Marcus, ed., 1985).

issuing published decisions; many of those cases involved treaties.8 In recent years, scholars of U.S. foreign relations law have delved deeply into materials from the 1780s to shed light on the original understanding of the Treaty Power.9 This is the first article, though, to conduct a systematic examination of judicial decisions in treaty cases from the 1790s. Whereas delegates to the Philadelphia Convention and state ratifying conventions often made seemingly inconsistent statements about the Treaty Power, analysis of judicial decisions from the 1790s reveals a consistent pattern of judicial decision-making in treaty cases. Thus, the records of these decisions are an important, but previously overlooked, source that sheds considerable light on the original understanding of the Treaty Power.

I. Background

In the late eighteenth century, “privateering” was a common means of warfare.10

If a nation with a relatively weak naval force became embroiled in warfare, it could augment its naval power by commissioning privateers to fight on its behalf. The term “privateer” refers both to privately owned ships that fought on behalf of a government and to the crew that manned those ships. If a man wanted to fight as a privateer on behalf of a government, he would have to bear the expense of purchasing an appropriate ship, fitting it for warfare, and hiring a crew. He would also have to obtain a commission from a duly authorized government officer. Armed with such a commission, the privateer was authorized to capture enemy ships. Once captured, the privateer would bring the captured vessel to a “prize court,” a judicial body authorized to declare whether the captured vessel was a lawful prize. If it was a lawful prize, the captors could sell the ship and its cargo and keep the money for themselves. Thus, the privateering system utilized the profit motive as a force multiplier to enhance the naval power of a nation at war.

On February 1, 1793, in the midst of revolutionary fervor at home, France

declared war on both Great Britain and Holland.11 At that point, France was already at war with Austria and Prussia. Soon afterwards, France also declared war on Spain. Confronted with numerous enemies who collectively had superior naval forces, the French government decided to make extensive use of privateers to capture enemy vessels. Many French privateers sailed from ports in the United States, operated in U.S. territorial waters, and/or brought their prizes to U.S. ports. The activities of French privateers

8 Indeed, a leading historical account notes that 31 of 61 cases adjudicated in the Supreme Court between 1790 and 1800 involved treaties. See JULIUS GOEBEL, JR., ANTECEDENTS AND BEGINNINGS TO 1801 (Vol. I of Oliver Wendell Holmes Devise History of the Supreme Court), at 812 (data in Tables XIII and XIV). The figure of 61 adjudicated cases excludes 18 cases that were disposed without adjudication. See id. 9 See, e.g., Martin S. Flaherty, History Right? Historical Scholarship, Original Understanding, and Treaties as “Supreme Law of the Land,” 99 COLUM. L. REV. 2095 (1999). 10 The discussion of privateering in this paragraph is drawn primarily from William R. Casto, Foreign Affairs Crises and the Constitution’s Case or Controversy Limitation: Notes from the Founding Era, 46 AM. J. LEGAL HIST. 237, 241-43 (2004). 11 CHARLES MARION THOMAS, AMERICAN NEUTRALITY IN 1793: A STUDY IN CABINET GOVERNMENT 24 (1967).

posed significant foreign policy problems for the United States government. They also raised intriguing legal questions for U.S. courts.

The United States wanted to remain neutral in the war between France and its

numerous enemies. President Washington announced the U.S. neutrality policy in a proclamation issued in April 1793.12 Although the concept of neutrality was simple, French activities in the United States posed substantial difficulties for the implementation of U.S. neutrality policy. In November 1792, France appointed Edmond Genet as its new ambassador to the United States. Genet arrived in the United States in April 1793.13 Almost immediately after his arrival, Genet began commissioning U.S. citizens to act as privateers in the service of the French government.14 Article 21 of the 1778 treaty with France prohibited U.S. citizens from taking “any Commission or letters of marque for arming any ship or Ships to act as Privateers against” France.15 From Genet’s perspective, though, it was entirely permissible for U.S. citizens to accept commissions from France to act as privateers against France’s enemies. In contrast, the United States construed its neutrality policy to preclude U.S. citizens from serving as French privateers.16 In June 1794, Congress enacted legislation making it a misdemeanor for “any citizen of the United States . . . [to] accept and exercise a commission to serve a foreign prince or state in war.”17

Genet also provided financial assistance to U.S. and French citizens who accepted

commissions to serve as privateers for France. With Genet’s financial aid, the privateers purchased ships and armed them for naval warfare. They undertook these operations on U.S. territory.18 Article 22 of the 1778 treaty with France prohibited privateers employed by France’s enemies from outfitting their ships in U.S. ports.19 Genet construed this to mean that privateers employed by France were permitted to outfit their ships in U.S. ports.20 The United States, in contrast, believed that it was incompatible with U.S. neutrality policy to permit outfitting of French privateers in U.S. ports. Accordingly, in August 1793, The Washington Administration adopted “Rules Governing Belligerents” to prohibit the practice.21 Congress enacted legislation the next year making it a misdemeanor for any person acting within the jurisdiction of the United States to “fit out and arm . . . any ship or vessel with intent that such ship or vessel shall be employed in the service of any foreign prince or state” or to “increase or augment . . . the force of any ship of war, cruiser or other armed vessel . . . in the service of a foreign prince or state.”22 12 See id. at 41-43. The text of the proclamation is printed in I AMERICAN STATE PAPERS ON FOREIGN RELATIONS, at 140. 13 See generally HARRY AMMON, THE GENET MISSION (1973). 14 Add citations. 15 1778 Treaty with France, supra note __, art. 21. 16 See THOMAS, supra note __, at 165-68. 17 An Act in addition to the act for the punishment of certain crimes against the United States, § 1, 1 Stat. 381, 381-82 (June 5, 1794). 18 Add citations19 1778 Treaty with France, supra note __, art. 22. 20 See THOMAS, supra note __, at 126-28. 21 See id. at 150-53. 22 An Act in addition to the act for the punishment of certain crimes against the United States, §§ 3-4, 1 Stat. 381, 383 (June 5, 1794).

(In the jargon of the 1790s, the term “fitting out” or “outfitting” referred to the conversion of a civilian vessel for military use, whereas “augmentation” referred to the the practice of adding more guns to a ship that was already fitted out for military use.)

Additionally, Genet instructed French consuls in major U.S. ports to establish

prize courts. Consequently, French privateers commissioned by Genet and outfitted in the United States began bringing their prizes into U.S. ports so that French consuls operating prize courts on U.S. territory could adjudicate the lawfulness of their prizes.23 France’s attempt to establish prize courts in the United States was a radical innovation. The prior practice in Europe was for privateers to bring prizes to their home country, or to a colonial territory controlled by that country.24 The U.S. had agreed in a consular treaty with France that French consuls would have the power to adjudicate disputes, for example, between a French captain and his crew while they were docked at U.S. ports.25 There was no treaty provision, though, that authorized French consuls to adjudicate prize cases on U.S. territory. Accordingly, the Supreme Court decreed expressly in February 1794 “that the admiralty jurisdiction, which has been exercised in the United States by the Consuls of France . . . is not of right.”26

From 1793 until 1796, French privateers continued to bring captured vessels into

U.S. ports, where they would attempt to sell the prize and its cargo. Typically, when a French privateer brought a prize to a U.S. port, the owner of the vessel, or someone representing the owner’s interests, filed a libel in a U.S. district court in an effort to obtain restitution of the captured vessel and its cargo. The Judiciary Act of 1789 granted U.S. district courts “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction.”27 Although there was initially some doubt about whether a libel to obtain restitution of a captured vessel was a “civil cause” within the meaning of the Judiciary Act, the Supreme Court provided an authoritative resolution of that issue in February 1794, holding that such cases fell squarely within the scope of the district courts’ admiralty jurisdiction.28

After the Supreme Court resolved the jurisdictional issue as a matter of statutory

interpretation, federal courts adjudicated numerous cases in which French privateers captured enemy vessels on the high seas and brought their prizes into U.S. courts. When the owners filed libels to obtain restitution of the captured property, the French privateers consistently invoked Article 17 of the 1778 treaty with France as a bar to the jurisdiction of U.S. courts. Article 17 provided in relevant part as follows:

23 See Casto, supra note __, at 243. 24 See id. 25 Convention Defining and Establishing the Functions and Privileges of Consuls and Vice Consuls, Nov. 14, 1788, art. 12, U.S.-France, reprinted in 2 Treaties and Other International Acts of the United States of America 228, 239 (Hunter Miller ed., 1931). 26 Glass v. Sloop Betsey, 3 U.S. 6, 16 (1794). 27 An Act to establish the Judicial Courts of the United States, § 9, 1 Stat. 73, 76-77 (Sept. 24, 1789). 28 Glass v. The Sloop Betsey, 3 U.S. 6 (1794). See infra notes __ and accompanying text (discussing Sloop Betsey in more detail).

It shall be lawful for the Ships of War of either Party & Privateers freely to carry whithersoever they please the Ships and Goods taken from their Enemies, without being obliged to pay any Duty to the Officers of the Admiralty or any other Judges; nor shall such Prizes be arrested or seized, when they come to and enter the Ports of either Party; nor shall the Searchers or other Officers of those Places search the same or make examination concerning the Lawfulness of such Prizes, but they may hoist Sail at any time and depart and carry their Prizes to the Places express’d in their Commissions, which the Commanders of such Ships of War shall be obliged to shew.29

U.S. courts could not resolve the merits of libels filed by the owners of captured property without ruling on the lawfulness of the capture. But Article 17 expressly precluded U.S. courts from examining “the Lawfulness of such Prizes.” Thus, these cases presented a direct conflict between the 1789 Judiciary Act, which conferred jurisdiction on the federal district courts, and Article 17 of the 1778 treaty with France, which barred the exercise of jurisdiction. The treaty-based restriction on jurisdiction was essentially a codification or restatement of a generally accepted principle of the law of nations: that courts of the captors’ nation had exclusive jurisdiction to decide whether a prize was lawfully captured. For that reason, many of the judicial decisions barring the exercise of federal jurisdiction refer interchangeably to Article 17 and the law of nations.

II. Admiralty Cases in the 1790s

From 1793 through 1796, U.S. courts decided at least twenty-two cases in which Article 17 of the treaty with France and/or the law of nations precluded the exercise of statutorily granted admiralty jurisdiction. These twenty-two cases include: four published Supreme Court decisions,30 two published district court opinions that were affirmed by the Supreme Court in unpublished dispositions;31 nine published district court opinions in cases that never reached the Supreme Court;32 and seven other cases decided by the Supreme Court in unpublished dispositions.33 Part Two analyzes these

29 1778 Treaty with France, supra note __, art. 17 (emphasis added). 30 Moodie v. The Ship Phoebe Anne, 3 U.S. 319 (1796); Moodie v. The Ship Alfred, 3 U.S. 307 (1796); Geyer v. Michel, 3 U.S. 285 (1796); United States v. Peters, 3 U.S. 121 (1795). 31 British Consul v. The Favorite, 4 F. Cas. 169 (D.S.C. 1794) (district court opinion reported as note to Case No. 15,331, 26 F.Cas. 233) (Supreme Court Case No. 22, affirmed by the Supreme Court on Feb. 29, 1796); British Consul v. The Mermaid, 4 F. Cas. 169 (D.S.C. 1795) (Supreme Court Case No. 17, affirmed by the Supreme Court on March 1, 1796). The Supreme Court Minutes for February Term, 1796, are published in 7 AM. J. LEGAL HIST. 63 (1963)). 32 Moodie v. The Amity, 17 F. Cas. 650 (D.S.C. 1796); Moodie v. The Brothers, 17 F. Cas. 653 (D.S.C. 1795); Williamson v. The Betsy, 30 F. Cas. 7 (D.S.C. 1795); Reid v. The Vere, 20 F. Cas. 488 (D.S.C. 1795); Salderondo v. Nostra Signora del Camino, 21 F. Cas. 225 (D.S.C. 1794); Stannick v. The Friendship, 22 F. Cas. 1056 (D.S.C. 1794); Castello v. Bouteille, 5 F. Cas. 278 (D.S.C. 1794); Findlay v. The William, 9 F. Cas. 57 (D. Penn. 1793); Moxon v. The Fanny, 17 F. Cas. 942 (D. Penn. 1793). 33 Don Diego Pintado v. Ship San Joseph, alias la Princesa de la Asturias, Supreme Court Case No. __ (decree of the Circuit Court for the District of New York affirmed by the Supreme Court on Aug. 10, 1796); Moodie v. Snow Potowmack, Supreme Court Case No. 24 (judgment of the Circuit Court for South Carolina District affirmed by the Supreme Court on Aug. 9, 1796); Moodie v. Brig Tivoly, Supreme Court

cases. The first section discusses Glass v. The Sloop Betsey,34 the first Supreme Court decision addressing the constellation of issues involving prize cases, Article 17, and admiralty jurisdiction. The second section provides an overview of the twenty-two cases in which courts held that Article 17 barred the exercise of statutorily granted admiralty jurisdiction.

A. Glass v. The Sloop Betsey In Glass v. The Sloop Betsey, a French privateer captured a vessel belonging to

subjects of Sweden, which was a neutral power. After the captor brought his prize into the port of Baltimore, the owners of the vessel and its cargo filed a libel in the District Court of Maryland.35 The French captor then filed a plea to the jurisdiction of the court.36 The District Court dismissed the case for lack of jurisdiction, and the Circuit Court affirmed. The owners then appealed that decision to the Supreme Court.

Oral argument before the Supreme Court lasted for four days, from Feb. 8 to Feb.

12, 1794.37 The French captor raised three distinct arguments against jurisdiction. First, he argued, the jurisdiction of the District Court under the Judiciary Act extends only to “civil causes of admiralty and maritime jurisdiction.”38 Since the case at issue arose in the context of an ongoing war, it was not a “civil cause” within the meaning of the Judiciary Act.39 Second, the owners’ claim for restitution necessarily raised the question whether the capture was a lawful prize, and under the law of nations that question “can only be decided by the admiralty courts of that government to whom the captor

Case No. 20 (judgment of the Circuit Court for South Carolina District affirmed by the Supreme Court on Aug. 9, 1796); Moodie v. Brig Eliza, Supreme Court Case Nos. 18, 25 (judgment of the Circuit Court for South Carolina District affirmed by the Supreme Court on Aug. 9, 1796); Moodie v. Ship Britannia, Supreme Court Case No. 23 (judgment of the Circuit Court for South Carolina District affirmed by the Supreme Court on Aug. 9, 1796); Moodie v. The Ship Phyn, Supreme Court Case No. 19 (decree of the Circuit Court for South Carolina District affirmed by the Supreme Court on March 14, 1796); Wallace v. The Brig Casar, Supreme Court Case No. __ (judgment of the Circuit Court of Georgia District affirmed by the Supreme Court on Feb. 29, 1796). The Supreme Court Minutes for August Term, 1796, are published in 7 AM. J. LEGAL HIST. 165 (1963). The Minutes for February Term, 1796, are published in 7 AM. J. LEGAL HIST. 63 (1963). References to Supreme Court Case numbers are the docket numbers used in the Supreme Court archives. 34 3 U.S. 6 (1794) (decided Feb. 18, 1794). 35 Id. at 6. The cargo was owned jointly by Swedes and Americans. 36 In the admiralty cases that are the focus of this study, the French captors consistently raised pleas to jurisdiction without specifying whether they were challenging the court’s in rem jurisdiction over the captured property, or its subject matter jurisdiction over the claim. In the 1790s, lawyers and judges did not draw a sharp distinction between subject matter jurisdiction and jurisdiction over property. From their standpoint, the two ideas were inextricably related. See infra notes __ and accompanying text. 37 See Minutes of the Supreme Court of the United States, Feb. Term 1794, reprinted in 5 AM. J. LEGAL HIST. 166, 190-92 (1961). 38 Sloop Betsey, 3 U.S. at 7. See also An Act to establish the Judicial Courts of the United States, § 9, 1 Stat. 73, 76-77 (granting district courts “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction”). 39 Id. at 7-8.

belongs.”40 Third, “the interference of the American courts will be a manifest violation of the seventeenth article of the treaty with France.”41

The appellants contested each of these arguments. With respect to the treaty, they

argued that “[t]he seventeenth article of the Treaty expressly extends only to ‘ships and goods taken by France from her enemies;’ and being in the affirmative, as to enemies, it affords a strong implication of a negative as to neutrals and Americans.”42 With respect to the statute, they contended that the word “civil,” in the statute, was used “in contra distinction to criminal.” Since wartime admiralty cases are not criminal cases, they were included within the grant of statutory jurisdiction.43

The Supreme Court ruled in favor of the appellants, holding expressly that “every

District Court in the United States possesses all the powers of a court of Admiralty,” including jurisdiction over libels for restitution of captured prizes.44 The Court remanded the case to the District Court to decide whether the claimants were entitled to restitution under “the laws of nations and the treaties and laws of the United States.”45 Although the Court did not explicitly discuss the correct interpretation of Article 17, the clear implication of the Court’s opinion is that Article 17 did not preclude the exercise of jurisdiction in this case because the article, by its terms, applied only to ships “taken [by French privateers] from their Enemies,”46 and Sweden was a neutral power.

The Supreme Court’s decision in Sloop Betsey is significant for two reasons.

First, the Court held unambiguously that cases in which ship owners sought restitution of prizes captured by French privateers fell squarely within the statutory grant of admiralty jurisdiction in the 1789 Judiciary Act. In Sloop Betsey, the French captors explicitly raised statutory arguments against the jurisdiction of the federal district court.47 After Sloop Betsey, French captors stopped raising those arguments. They effectively conceded that federal courts had statutory jurisdiction under the Judiciary Act, but they continued to raise successful treaty-based objections to jurisdiction.

Second, the Court’s decision in Sloop Betsey made clear that there were limits to

the generally accepted law of nations principle that the question of “[p]rize or no prize must be determined by courts of admiralty, belonging to the power whose subjects make the capture.”48 In particular, the Court recognized an exception for cases in which privateers captured ships belonging to neutral powers. This exception, as appellants noted, was implicit in Article 17 of the treaty with France.

40 Id. at 9-11. 41 Id. at 11-12. 42 Id. at 12. See also 1778 Treaty with France, supra note __, Art. 17, (specifying, with respect to “Ships and Goods taken from [France’s] Enemies,” that U.S. admiralty courts shall not “make examination concerning the Lawfulness of such Prizes”). 43 Id. at 12-13. 44 Id. at 16. 45 Id. 46 1778 Treaty with France, supra note __, Art. 17. 47 Sloop Betsey, 3 U.S. at 7-8. 48 Findlay v. The William, 9 F.Cas. 57, 62 (D. Penn. 1793) (citing authorities).

Over the next eighteen months, the U.S. established two other exceptions to the

law of nations principle embodied in Article 17. First, in June 1794, Congress enacted a statute granting district courts jurisdiction over cases involving vessels captured within U.S. territorial waters.49 Second, in August 1795, the Supreme Court held that the district courts had authority to inquire whether the privateer who captured the disputed prize had a lawful commission, and to order restitution of prizes captured by privateers who lacked valid commissions.50

In sum, by late 1795 it was firmly established that Article 17 barred the exercise

of jurisdiction over libels to obtain restitution of property captured by French privateers, unless the privateer lacked a valid commission, captured neutral property, or made the capture in U.S. territorial waters. Judge Thomas Bee, the federal district judge in South Carolina who adjudicated the majority of the cases under consideration, recognized one other exception to the rule barring jurisdiction. In some cases he exercised jurisdiction, notwithstanding article 17, on the grounds that the privateer had been illegally outfitted in a U.S. port, or had augmented its force in a U.S. port in violation of U.S. sovereignty and neutrality.51 In two such cases, the Circuit Court reversed Judge Bee’s decision on factual grounds, and the Supreme Court affirmed the Circuit Court judgment.52 There is no evidence that the French captor appealed the judgment in any other case where Judge Bee invoked this rationale in support of jurisdiction. Consequently, the Supreme Court never decided whether illegal outfitting or illegal augmentation of forces was a legitimate ground for district courts to exercise jurisdiction over captures of enemy vessels by French privateers on the high seas.

Regardless, lower federal courts continued to adjudicate numerous cases that did

not satisfy any of these exceptions: cases in which lawfully commissioned French privateers captured enemy vessels on the high seas and brought their prizes into U.S. courts. These cases presented a direct conflict between the 1789 Judiciary Act, which conferred jurisdiction on the federal district courts, and the 1778 treaty with France, which barred the exercise of jurisdiction. The courts consistently resolved that conflict in favor of the treaty.

B. An Overview of the Cases

From 1793 through 1796 U.S. courts decided at least twenty-two cases in which

Article 17 of the treaty with France and/or the law of nations precluded the exercise of statutorily granted admiralty jurisdiction.53 This figure includes cases that yielded either

49 An Act in addition to the act for the punishment of certain crimes against the United States, § 6, 1 Stat. 381, 384 (June 5, 1794) (establishing district court jurisdiction in “cases of captures made within the waters of the United States, or within a marine league of the coasts or shores thereof”). 50 Talbot v. Jansen, 3 U.S. 133 (Aug. 1795). See infra notes __ and accompanying text (discussing Talbot). 51 See, e.g., British Consul v. The Nancy, 4 F.Cas. 171 (D.S.C. 1795); Moodie v. The Betty Cathcart, 17 F.Cas. 651 (D.S.C. 1795). 52 See infra notes ___ and accompanying text. 53 See supra notes __ (listing cases).

a published Supreme Court decision, or a lower court decision published in the “Federal Cases” series, or an unpublished Supreme Court decision recorded in the Supreme Court minutes.54 Unpublished lower court decisions are not counted for these purposes. This section presents an analysis of these cases in roughly chronological order.

Supreme Court records of unpublished decisions do not contain any opinions

adopted by the Court, or written by individual Justices. Rather, the archival material consists primarily of the documents filed in the District Court, and the orders issued by the District and Circuit Courts. The Supreme Court’s reliance on Article 17 as the jurisdictional rule of decision must be inferred on this basis.

Judge Richard Peters of the District Court in Pennsylvania published two

decisions in 1793 in cases where British ship owners filed libels seeking remedies for allegedly illegal captures made by French privateers: Findlay v. The William,55 and Moxon v. The Fanny.56 In both cases, the French captors filed a plea to the jurisdiction of the court.57 In both cases, the French captors argued that it would be a violation of Article 17 and the law of nations for the court to exercise jurisdiction over the libels.58 In both cases, Judge Peters dismissed the libels.59 In the course of summarizing the British arguments in favor of jurisdiction, Judge Peters referred indirectly to the Judiciary Act, but his decisions did not rely on the statute.60 To the contrary, both decisions relied primarily on the law of nations, and secondarily on Article 17 of the treaty with France, to provide the jurisdictional rule of decision.61 Judge Peters noted specifically that Article 17 and the law of nations endorsed similar principles.62

54 Supreme Court Minutes from 1789 through 1800 are reproduced in Volumes 5, 6, 7, and 8 of the American Journal of Legal History. 55 9 F.Cas. 57 (D. Penn. 1793) (British ship owners sought discharge of ship and cargo and damages for allegedly illegal capture made by the French privateer, Citizen Genet). 56 17 F.Cas. 942 (D. Penn. 1793) (British ship owners sought restitution of vessel and cargo and damages for allegedly illegal capture made by the French privateer, Sans Culottes). 57 See The William, 9 F.Cas. at 57-58; The Fanny, 17 F.Cas. at 942-43. 58 See The William, 9 F.Cas. at 58 (summarizing argument of French captors); The Fanny, 17 F.Cas. at 943 (noting argument by French captor “[t]hat by the laws of nations, and the treaty of amity and commerce with France, it doth not pertain to this court to hold plea”). 59 See The William, 9 F.Cas. at 62 (ordering “that the libel in this cause be dismissed; and that the ship therein mentioned be discharged from the arrest, the plea in this case being relevant); The Fanny, 17 F.Cas. at 948 (ordering that the brigantine Fanny “be discharged from arrest, and the libel be dismissed, the plea to the jurisdiction being relevant”). 60 See The William, 9 F.Cas. at 58-59 (noting British argument in favor of judicial exercise of admiralty jurisdiction); The Fanny, 17 F.Cas. at 943 (summarizing British argument that case is “within the jurisdiction of our admiralty courts” and “the judiciary have cognizance of all cases of admiralty and maritime jurisdiction”). 61 See The William, 9 F.Cas. at 59-61 (discussing law of nations), and at 60 (citing treaty); The Fanny, 17 F.Cas. at 944-47 (discussing law of nations), and at 947 (“I do not extend these opinions farther, than to captures by one enemy from another. The treaty with France . . . insisted on by the captors, extends no farther than to such captures. This treaty has its due weight with me; but only in cases evidently comprehended in it. And it appears to me that this case is one of them.”). 62 The William, 9 F.Cas. at 60 (“The general principle, as to the capture, [embodied in the law of nations] is agreed; and is similar to that established in our treaty with France, which ought to have its proper weight.”).

The Supreme Court decided Sloop Betsey in February 1794. There were no other relevant Supreme Court decisions that year. Meanwhile, Judge Thomas Bee of the District Court in South Carolina published four decisions in 1794 in which he dismissed libels filed by British or Spanish ship owners or their representatives seeking remedies for allegedly illegal captures made by French privateers: Castello v. Bouteille,63 British Consul v. The Favorite,64 Stannick v. The Friendship,65 and Salderondo v. Nostra Signora del Camino.66 In all four cases the French captors filed a plea to the jurisdiction of the court.67 Judge Bee dismissed all four cases for lack of jurisdiction, relying primarily on Article 17 of the treaty with France.68

In 1795 and 1796, Judge Bee published five more decisions in which the court

dismissed, on jurisdictional grounds, cases where British ship owners or their representatives filed libels seeking remedies for allegedly illegal captures made by French subjects: Reid v. The Vere,69 Williamson v. The Betsy,70 British Consul v. The Mermaid,71 Moodie v. The Brothers,72 and Moodie v. The Amity.73 In all five cases, the

63 5 F.Cas. 278 (D.S.C. 1794) (Spanish ship owner sought restitution of vessel and cargo and compensation for allegedly illegal capture made by French privateers, Fair Margaret and Sans-Pareille). 64 4 F.Cas. 169 (D.S.C. 1794) (opinion published as a note to United States v. Hawke, 26 F.Cas. 233 (D.S.C. 1794)) (British consul filed libel challenging allegedly illegal capture made by French privateer, The Hawke). 65 22 F.Cas. 1056 (D.S.C. 1794) (British ship owner sought restitution of vessel and cargo and damages for allegedly illegal capture made by French privateer, Montagne). 66 21 F.Cas. 225 (D.S.C. 1794) (representative of Spanish ship owner filed libel challenging allegedly illegal capture made by French privateers, Minerva and Sans-Pareille). 67 See Castello, 5 F.Cas. at 279; The Favorite, 26 F.Cas. at 235; The Friendship, 22 F.Cas. at 1056; Salderondo, 21 F.Cas. at 226. 68 See Castello, 5 F.Cas. at 279 (referencing Article 17) and at 280 (dismissing libel); The Favorite, 26 F.Cas. at 235 (dismissing libel on the grounds that “the 17th article of the treaty with France [was a] bar to the jurisdiction of this court”); The Friendship, 22 F.Cas. at 1057 (holding that “our treaty with France (17th article) has expressly altered [the] law in cases like the present . . . [and] the libel must be dismissed”); Salderondo, 21 F.Cas. at 226 (“I consider the 17th article of our treaty with France as conclusive against the jurisdiction of this court, and I dismiss the libel with costs.”). Judge Bee decided four other cases in 1794 in which he affirmed the court’s jurisdiction, despite objections by French captors. In three cases, French privateers had captured American property. See Arnold v. Del Col, 1 F.Cas. 1178 (D.S.C. 1794) (awarding damages to owner of American brig captured by French privateer) (affirmed by U.S. Supreme Court in Del Col v. Arnold, 3 U.S. 333 (1796)); Tunno v. Preary, 24 F.Cas. 323 (D.S.C. 1794) (ordering reimbursement of $12,000 taken from American vessel by French privateer); M’Grath v. The Candalero, 16 F.Cas. 127 (D.S.C. 1794) (awarding damages to owner of U.S. schooner captured by French privateer). Since article 17 of the treaty with France applied only to captures of vessels owned by France’s enemies, see supra notes __ and accompanying text, the treaty did not bar jurisdiction in these cases. In the fourth case, the captors did not have valid French commissions. See Jansen v. The Vrow Christina Magdalena, 13 F.Cas. 356 (D.S.C. 1794) (affirmed by U.S. Supreme Court in Talbot v. Jansen, 3 U.S. 133 (1795)). 69 20 F.Cas. 488 (D.S.C. 1795) (representative of British ship owner sought restitution of vessel captured by French prisoners). 70 30 F.Cas. 7 (D.S.C. 1795) (master of British brig sought restoration of vessel on grounds that it was captured illegally by French privateer, Port-de-Paix). 71 4 F.Cas. 169 (D.S.C. 1795) (British consul sought restitution of vessel on grounds that it was captured illegally by French privateer, General Laveaux). 72 17 F.Cas. 653 (D.S.C. 1795) (British consul sought restitution of vessel on grounds that it was captured illegally by French privateer, Port-de-Paix).

French captors filed a plea to the jurisdiction of the court.74 Judge Bee dismissed all five cases for lack of jurisdiction, relying primarily on Article 17 of the treaty with France.75

The Supreme Court decided two cases in 1795 that are relevant to the present

discussion. First, in Talbot v. Jansen,76 the Supreme Court held that federal district courts could exercise jurisdiction over cases involving captures by French privateers on the high seas for the limited purpose of inquiring whether a privateer who captured a disputed prize had a lawful commission.77 Second, the Court decided United States v. Peters.78 In Peters, the commander of a French warship filed a writ of prohibition in the Supreme Court to prevent Richard Peters, the district judge for the District of Pennsylvania, from exercising jurisdiction over a libel filed in that court by James Yard.79 In his libel in the district court, Yard alleged that he was the owner of the schooner William Lindsey, which had been captured illegally by a French warship, the Cassius, and taken to Port de Paix (a French port). When the Cassius subsequently returned to Philadelphia (while the William Lindsey was still in Port de Paix), Yard filed a libel and moved to attach the Cassius in an effort to secure compensation for the damages he sustained as a result of the allegedly illegal capture of the William Lindsey.80 Samuel Davis, the commander of the Cassius, responded by filing a writ of prohibition in the Supreme Court. The Supreme Court granted the writ,81 holding that the law of nations and the treaty with France precluded the district court from exercising jurisdiction

73 17 F.Cas. 650 (D.S.C. 1796) (British consul sought remedy for capture of British vessel on the ground that the prize was sold in the United States in violation of a treaty between the U.S. and Great Britain). 74 See The Vere, 20 F.Cas. at 488-89; The Betsy, 30 F.Cas. at 7; The Mermaid, 4 F.Cas. at 169-71; The Brothers, 17 F.Cas. at 654; The Amity, 17 F.Cas. at 650-51. 75 See The Vere, 20 F.Cas. at 488-89 (referencing both the law of nations and Article 17 of the treaty with France, and holding that “the plea to the jurisdiction must be sustained”); The Betsy, 30 F.Cas. at 7 (noting that “the 17th article of the treaty with France is relied on in support of the plea” to jurisdiction, and dismissing the libel with costs); The Mermaid, 4 F.Cas. at 171 (stating that the privateer “is protected by the 17th article of our treaty with France” and “decreeing that the libel be dismissed with costs”); The Brothers, 17 F.Cas. at 654 (noting that the claimants “plead the 17th article of the treaty with France in bar to the interference of this court” and decreeing that the libel be dismissed with costs); The Amity; 17 F.Cas. at 651 (stating that “the treaty with France excludes all jurisdiction on our part, in cases like the present” and dismissing the libel with costs). 76 3 U.S. 133 (Aug. 1795). 77 See id. at 159 (Iredell, J.)

[I]t is true, both by the law of nations, and the treaty with France, if a French privateer brings an enemy’s ship into our ports, which she has taken as prize on the high seas, the United States, as a nation, have no right to detain her, or make any enquiry into the circumstances of the capture. But this exemption from enquiry, by our courts of justice, in this respect, only belongs to a French privateer, lawfully commissioned, and, therefore, if a vessel claims that exemption, but does not appear to be duly entitled to it, it is the express duty of the court, upon application, to make enquiry, whether she is the vessel she pretends to be, since her title to such exemption depends on that very fact.

78 3 U.S. 121 (Aug. 1795). 79 See id. at 121-25. 80 Id. at 121-22. 81 Id. at 129

in a case where a French warship had captured an American vessel and taken the captured vessel to a French port.82

In the February term of 1796, the Supreme Court decided six cases that are

relevant to the present inquiry. The Court published a single opinion that resolved two of the six cases: Geyer v. The Ship Den Onzekeren and Moodie v. The Ship Betty Cathcart.83 The Den Onzekeren and the Betty Cathcart were joined for oral argument before the Supreme Court.84 The Den Onzekeren was a Dutch ship; the Betty Cathcart was a British vessel. Both were captured by the Citizen of Marseilles, a French privateer.85 In separate decisions, Judge Bee ordered restitution of both vessels to their respective owners on the grounds that the Citizen of Marseilles had illegally augmented its force within U.S. territory, in violation of U.S. neutrality laws.86 The Circuit Court reversed those decisions after hearing new evidence that tended to show that the Citizen of Marseilles had not actually augmented its force within U.S. territory.87 The Supreme Court affirmed the Circuit Court decision without comment.88 As a result, both libels were dismissed on the ground that Article 17 of the treaty with France precluded the district court from exercising jurisdiction.89

The Supreme Court decided four other relevant cases during the February 1796

term in unpublished dispositions: Moodie v. The Brig Favorite,90 Moodie v. The Ship

82 Id. at 129-32. Note that Peters differs from the other cases discussed above in that Peters involved a captured ship that had been taken to a French port, whereas the other cases involved captured ships that had been brought into U.S. ports. If the Cassius had brought the William Lindsey to Philadelphia, the district court could have exercised jurisdiction, at least for the limited purpose of ascertaining whether the William Lindsey was, in fact, an American vessel. 83 Geyer v. Michel, 3 U.S. 285 (1796) (affirming the Circuit Court judgments in Geyer v. The Ship Den Onzekeren, Supreme Court Case No. 15, and Moodie v. The Betty Cathcart, Supreme Court Case No. 16). 84 See Minutes of the Supreme Court, March 3, 1796 (noting that the two cases “were agreed by Counsel to be argued together as depending upon similar principles”), and March 4, 5, 10, 11, and 12 (noting that the Court continued to hear argument in the two cases), reprinted in 7 AM. J. LEGAL HIST. 63, 75-80 (1963). 85 See Geyer, 3 U.S. at 286, 289. 86 See id. at 288 (noting that Judge Bee ordered restitution of the Den Onzekeren in an unpublished opinion). See also Moodie v. The Betty Cathcart, 17 F.Cas. 651, 653 (D.S.C. 1795) (holding that restoration of captured prizes is the appropriate remedy when a privateer augments its force on U.S. territory in violation of U.S. sovereignty and neutrality). 87 See Geyer, 3 U.S. at 289-96. 88 Id. at 296. 89 The French privateer, the Citizen of Marseilles, captured both prizes on the high seas, outside the jurisdictional limits of the United States. [Add pin-cites.] There was no dispute that the Citizen of Marseilles had a lawful commission from the French government. [Pin-cite.] Both captured prizes belonged to enemies of France: the Den Onzekeren was Dutch, and the Betty Cathcart was British. Therefore, under the agreed principles that governed these cases, the only plausible argument in favor of jurisdiction was that the Citizen of Marseilles had illegally augmented its force within U.S. territory. When the Circuit Court rejected that claim, dismissal of the libel for lack of jurisdiction was the necessary consequence. The Supreme Court did not need to state this explicitly because all the relevant players understood this consequence. 90 Supreme Court Case No. 22.

Mermaid,91 Moodie v. The Ship Phyn,92 and Wallace v. The Brig Casar.93 The first three cases were appeals from decisions by Judge Thomas Bee of the District Court of South Carolina. Judge Bee dismissed all three cases on the grounds that Article 17 barred the exercise of jurisdiction.94 In all three cases, the Circuit Court affirmed the District Court without comment,95 and the Supreme Court affirmed the Circuit Court without comment.96 Thus, it is reasonable to infer that the Supreme Court endorsed Judge Bee’s rationale. In the fourth case, Wallace v. The Brig Casar, the Supreme Court Minutes state expressly that The Casar and The Favorite “depend[ed] upon similar principles for their determination,”97 meaning that Article 17 also barred the exercise of jurisdiction in The Casar.

The Supreme Court decided seven cases in the August term of 1796 in which Article 17 of the treaty with France precluded the district courts from exercising jurisdiction over admiralty claims involving enemy vessels captured by French privateers, including two published decisions and five unpublished decisions. The two published decisions are Moodie v. The Ship Phoebe Anne98and Moodie v. The Ship Alfred.99 In Phoebe Anne, the British consul argued “the impolicy and inconveniency of suffering privateers to equip” in U.S. ports.100 In response, Chief Justice Elsworth, writing for the Court, stated: “Suggestions of policy and conveniency cannot be considered in the judicial determination of a question of right: the Treaty with France . . . must have its effect.”101 Accordingly, the Supreme Court affirmed the judgment of the

91 Supreme Court Case No. 17. 92 Supreme Court Case No. 19. 93 Supreme Court Case No. 15. 94 See British Consul v. The Mermaid, 4 F.Cas. 169, 171 (D.S.C. 1795) (stating that the privateer “is protected by the 17th article of our treaty with France” and “decreeing that the libel be dismissed with costs”); British Consul v. The Favorite, 4 F.Cas. 169 (D.S.C. 1794) (opinion published as a note to United States v. Hawke, 26 F.Cas. 233, 235 (D.S.C. 1794)) (dismissing libel on the grounds that “the 17th article of the treaty with France [was a] bar to the jurisdiction of this court”); Moodie v. The Ship Phyn, Supreme Court Case No. 19, decree of District Court, pg. 13 of case file (“I do adjudge and decree that the plea in bar of the seventeenth Article of the Treaty filed in this cause is relevant and that the libel be dismissed with costs.”). 95 See Moodie v. The Brig Favorite, Case No. 22, decree of Circuit Court, pg. 10 of case file (ordering that “the decree of the district court of South Carolina . . . be and the same is hereby established and affirmed in all its parts”); Moodie v. The Ship Mermaid, Case No. 17, decree of Circuit Court, pg. 21 of case file (ordering that “the decree of the District Court of South Carolina . . . be and the same is hereby established and affirmed in all its parts”); Moodie v. The Ship Phyn, Case No. 19, decree of Circuit Court, pg. 15 of case file (ordering “that the decree of the District Court of South Carolina pronounced in this Cause . . . is hereby established and affirmed in all its parts”). 96 See Minutes of the Supreme Court, Feb. 29, 1796, reprinted in 7 AM. J. LEGAL HIST. 63, 73 (1963) (affirming the judgment of the Circuit Court of South Carolina in The Brig Favorite); Minutes of the Supreme Court, March 1, 1796, reprinted in 7 AM. J. LEGAL HIST. 63, 74 (1963) (affirming the judgment of the Circuit Court of South Carolina in The Ship Mermaid); Minutes of the Supreme Court, March 14, 1796, reprinted in 7 AM. J. LEGAL HIST. 63, 81 (1963) (affirming the judgment of the Circuit Court of South Carolina in The Ship Phyn). 97 Minutes of the Supreme Court, Feb. 28, 1796, reprinted in 7 AM. J. LEGAL HIST. 63, 72-73 (1963). 98 3 U.S. 319 (1796). 99 3 U.S. 307 (1796). 100 Phoebe Anne, 3 U.S. at 319. 101 Id.

lower court, which dismissed the libel on the ground that Article 17 of the treaty with France barred the exercise of jurisdiction.102 The published opinion in The Alfred does not specifically mention the treaty with France, but other evidence establishes that the case was dismissed because the treaty deprived the district court of jurisdiction.103

In the August term of 1796, the Supreme Court also handed down unpublished decisions in five cases in which Article 17 of the treaty with France precluded the district courts from exercising jurisdiction: Moodie v. The Brig Tivoly,104 Moodie v. The Ship Britannia,105 Moodie v. The Snow Potowmack,106 Moodie v. The Brig Eliza,107 and Don Diego Pintado v. The Ship San Joseph, alias la Princessa de la Asturias.108 The first four cases were appeals from decisions by Judge Thomas Bee of the District Court of South Carolina. Judge Bee dismissed all four cases on the grounds that Article 17 barred the exercise of jurisdiction.109 In all four cases, the Circuit Court affirmed the District Court without comment,110 and the Supreme Court affirmed the Circuit Court without

102 In Phoebe Anne, Judge Bee decreed “that the plea in bar of the seventeenth article of the Treaty with France is relevant in this case and therefore that the Libel be dismissed with costs.” Supreme Court Case No. 21, decree of District Court, pg. 7-8 of case file. The Circuit Court ordered that “the decree of the District Court of South Carolina pronounced in this cause . . . is hereby Established and Affirmed in all its parts.” Supreme Court Case No. 26, decree of Circuit Court, pg. 10 of case file. The published Supreme Court opinion refers to Article 19 of the treaty. In fact, two treaty articles were deleted between initial signature and entry into force, and the other articles were subsequently renumbered. [Add citation.] Thus, the Supreme Court’s reference to Article 19 is presumably a reference to the article that was originally number 19, but that subsequently became Article 17. 103 In The Ship Alfred, Judge Bee decreed “that the plea in Bar of the Seventeenth Article of the Treaty with France filed in this cause is relevant and that the Libel be dismissed without costs.” Supreme Court Case No. 21, decree of District Court, pg. 12 of case file. The Circuit Court ordered “that the decree of the District Court of South Carolina . . . be and the same is hereby established and affirmed in all of its parts.” Supreme Court Case No. 21, decree of Circuit Court, pg. 16 of case file. The Supreme Court affirmed without explanation. See 3 U.S. 307 (1796). 104 Supreme Court Case No. 20. 105 Supreme Court Case No. 23. 106 Supreme Court Case No. 24. 107 Supreme Court Case No. 25. [Note: In the archive material, there are two different Brig Eliza cases, numbered 18 and 25. In the Supreme Court Minutes, there is only one reference to a Supreme Court decision in a case called The Brig Eliza.] 108 Supreme Court Case No. __. 109 See Moodie v. The Brig Tivoly, Supreme Court Case No. 20, decree of District Court, pg. 12 of case file (“I do adjudge and decree that the plea in Bar of the seventeenth article of the treaty with France filed in this cause is relevant and that the libel be dismissed with costs.”); Moodie v. The Ship Britannia, Supreme Court Case No. 23, decree of District Court, pg. 8-9 of case file (same); Moodie v. The Snow Potowmack, Supreme Court Case No. 24, decree of District Court, pg. 9 of case file (same); Moodie v. The Brig Eliza, Supreme Court Case No. 25, decree of District Court, pg. 9-10 of case file (same). 110 See Moodie v. The Brig Tivoly, Supreme Court Case No. 20, decree of Circuit Court, pg. 14 of case file (stating “that the decree of the district court of South Carolina . . . be, and the same is hereby established and affirmed in all its parts”); Moodie v. The Ship Britannia, Supreme Court Case No. 23, decree of Circuit Court, pg. 11-12 of case file (same); Moodie v. The Snow Potowmack, Supreme Court Case No. 24, decree of Circuit Court, pg. 12 of case file (same); Moodie v. The Brig Eliza, Supreme Court Case No. 25, decree of Circuit Court, pg. 13 of case file (same).

comment.111 Thus, it is reasonable to infer that the Supreme Court endorsed Judge Bee’s rationale. [Still need more research on Don Diego Pintado.]112

In sum, during a four-year period from 1793 through 1796, U.S. federal courts

dismissed more than twenty admiralty cases on the grounds that Article 17 of the treaty with France barred the exercise of federal jurisdiction. Every case that the courts dismissed on jurisdictional grounds fell squarely within the statutory grant of admiralty jurisdiction, as codified in the Judiciary Act of 1789. Thus, in more than twenty cases where a federal statute granted jurisdiction, but a treaty barred jurisdiction, the courts applied the earlier-in-time treaty instead of the later-in-time statute. Part Three considers four possible explanations for the courts’ consistent practice of applying an earlier-in-time treaty in the face of a later conflicting statute. The analysis helps explain how American jurists in the late eighteenth century viewed the status of treaties in the U.S. legal system, and the relationship between statutes and treaties.

III. Explaining the Cases

To be added

IV. Relevance to Contemporary Scholarly Debates

The judicial decisions involving Article 17 of the 1778 treaty with France have implications for at least four different subjects of contemporary scholarly debate. The first two issues are purely doctrinal: the relative status of treaties and statutes within the U.S. legal system, and separation of powers limits on the treaty power. The other two issues are not doctrinal: the role of the judiciary in implementing U.S. foreign policy, and the value of early judicial decisions in illuminating the original intent of the Framers.

A. The Relative Status of Treaties and Statutes

In a recent article, Vasan Kesavan contends that the Framers understood the

Supremacy Clause to mean that statutes are hierarchically superior to treaties within the U.S. legal system.113 The 1790s admiralty cases that are the focus of this essay belie his claim. Those cases are consistent with the view that treaties are hierarchically superior to statutes. They are also consistent with the view that treaties and statutes have equal rank. However, analysis of those cases demonstrates that the lawyers who litigated them and the judges who decided them did not believe that statutes were hierarchically superior to treaties in the U.S. constitutional system.

111 See Minutes of the Supreme Court, Aug. 9, 1796, reprinted in 7 AM. J. LEGAL HIST. 165, 170 (1963) (affirming the judgment of the Circuit Court of South Carolina in The Brig Tivoly); id. (affirming the judgment of the Circuit Court of South Carolina in The Ship Britannia); id. at 171 (affirming the judgment of the Circuit Court of South Carolina in The Snow Potowmack); id. at 170 (affirming the judgment of the Circuit Court of South Carolina in The Brig Eliza). 112 See Minutes of the Supreme Court, Aug. 10, 1796, reprinted in 7 AM. J. LEGAL HIST. 165, 171-72 (1963). 113 Vasan Kesavan, The Three Tiers of Federal Law, 100 NORTHWESTERN UNIV. L. REV. 1479 (2006).

More to be added B. Separation of Powers Limits on the Treaty Power

Professor Yoo has argued that the Framers understood the Constitution to mean

that treaties regulating matters within the scope of Article I always require implementing legislation to have domestic legal effect.114 This essay demonstrates that the consistent practice of federal courts in the 1790s belies that claim. Federal courts in the first decade after ratification of the Constitution consistently applied Article 17 of the 1778 Treaty with France to regulate the exercise of federal jurisdiction, a matter clearly within the scope of Congress’ Article I powers. Moreover, the courts gave effect to Article 17 despite the fact that Congress never enacted legislation to implement Article 17.

More to be added.

C. Originalist Methodology

Originalist scholars place great weight on historical materials from the 1780s,

especially the records of the state ratification debates and the Constitutional Convention in Philadelphia, as indicia of the original intent of the Framers. In contrast, they have paid far less attention to the records of judicial decisions in the 1790s. It would be imprudent to make any broad claims about originalist methodology based upon this study of judicial decisions implicating Article 17 of the 1778 treaty with France. Nevertheless, with respect to the two issues discussed above – the hierarchical relationship between treaties and statutes, and the use of treaties to regulate matters within the scope of Congress’ Article I powers – there is a consistent record of judicial decisions from the 1790s that provides very compelling evidence of the original understanding. In contrast, the historical materials from the 1780s that other commentators have relied upon present a mixed record of ambiguous and inconsistent statements. At a minimum, when confronted with pre-ratification materials that are ambiguous and inconsistent, versus post-ratification materials that establish a clear, consistent record of judicial decision-making, originalist scholars should give more weight to the post-ratification materials. More broadly, the preceding analysis suggests that the record of judicial decisions from the 1790s, including materials available only in the Supreme Court archives, is an important historical source that has been under-utilized by originalist scholars.

D. The Judiciary and Foreign Policy

One of the most interesting aspects of the admiralty cases discussed above is the

interplay between the executive branch, the judiciary and foreign ambassadors. Many of these cases were the subject of high level political dialogue between U.S. officials and French and British diplomats. The British complained that the United States was

114 See John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 COLUM. L. REV. 1955 (1999); John C. Yoo, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, 99 COLUM. L. REV. 2218 (1999).

allowing French privateers to use U.S. ports as a base of operations to conduct military attacks against British merchant ships, in violation of the United States’ declared neutrality policy. The French complained that the United States was allowing British merchants to use U.S. courts to seize prizes lawfully captured by French privateers, in violation of the 1778 treaty with France. The executive branch routinely responded by saying that it was powerless to resolve these disputes, and by directing these diplomatic protests to the courts. President Washington had declared a policy of U.S. neutrality, but he was content to allow the federal courts to work out the details of what that neutrality policy meant in practice. And that, in effect, is what the courts did. They put flesh on the bones of the Washington Administration’s neutrality policy.

The role played by the federal judiciary in fleshing out the details of U.S.

neutrality policy in 1794-96 casts doubt on claims of contemporary scholars who contend that the power to conduct foreign policy is vested exclusively in the executive branch. Historical practice in the 1790s suggests that the Founding generation expected all three branches of the federal government to play an active role in shaping the contours of U.S. foreign policy. Moreover, the history of this era teaches a very practical lesson. A wise President can sometimes best effectuate U.S. foreign policy goals by refusing to intervene in the judicial process, and allowing the courts to resolve disputes through the application of international law, rather than bullying the courts to support the executive branch’s unilateralist interpretation of international law.

PROPOSAL 19

Sonja Starr Harvard Law School

Rights and Remedies in International Courts:

Judicial Under-andOver-Enforcement of Human Rights Law

For most of the sixty-year history of the international human rights era, scholarship in the field has primarily centered on the articulation of primary rules that substantively regulate government conduct, rather than with the effective implementation of those rules. “Rights” have largely been conceived as ideals that exist on a plane separate from the remedies used to implement them; remedies have amounted to an afterthought. That focus was paralleled for decades in human rights advocacy and international lawmaking processes—but in those contexts, the picture is beginning to change, and a new emphasis on enforcement has resulted in a proliferation of international tribunals. Scholarship in international human rights law (IHRL), however, is only just beginning to respond to this change. Although scholars have begun to give welcome attention to the creation of effective human rights institutions, the theoretical literature surrounding the relationship between rights and remedies in IHRL as implemented by those institutions remains extremely underdeveloped, especially by comparison to the rich scholarship assessing analogous issues in other fields, such as domestic constitutional law. This should change. The challenge of creating effective remedies for violations of rights will likely dominate the human rights agenda of the twenty-first century, and IHRL scholarship should track that reality.

This paper accordingly explores several questions related to remedies in IHRL as implemented by international courts. Drawing examples from several courts’ case law, the descriptive portion argues that courts’ substantive interpretations of rights as well as the remedial rules they adopt are often driven by pragmatic concerns about the courts’ own institutional capacities and about the effectiveness and consequences of the remedies available to them. In some instances, international courts “underenforce” rights on the basis of such concerns—either narrowly interpreting a right so as to avoid implementing a remedy, or (less often) recognizing a rights violation but candidly admitting to the existence of a right-remedy gap. On the other hand, courts sometimes adopt strong prophylactic rules that go beyond the requirements spelled out in human rights treaties, out of a concern that additional protections are necessary to make core treaty rights effective or to preserve institutional prerogatives like the tribunal’s credibility.

If courts vary the substantive and remedial rules they adopt on the basis of

pragmatic concerns specific to the particular tribunal, does that mean that they are not enforcing the “true” meaning of IHRL? In the U.S. constitutional law context, Daryl Levinson has critiqued the notion that rights have some “essential” meaning apart from the way they are actually enforced. IHRL scholarship frequently engages in just this sort of “rights essentialism,” with problematic consequences that my paper explores; like

Levinson, I argue that remedial concerns should be brought in from the periphery. However, his ultimate wholesale rejection of the right/remedy distinction—defining rights as nothing more or less than the remedy that a court will give if a particular harm is suffered—cannot aptly be applied to the international context. The meaning of IHRL cannot turn entirely on international judicial doctrine. Not only does IHRL lack a global system of binding precedent, but IHRL is a body of law that has never been primarily intended to be implemented by international courts. Rather, its core operation has been as a political instrument intended to shape state behavior. To the extent it is judicially enforced, the front-line enforcers are domestic courts. International courts face institutional constraints that differ from those facing domestic political and judicial actors, and there is no reason the doctrinal rules adopted because of those constraints must be treated as the authoritative definition of IHRL’s requirements. Moreover, in some instances, it may be possible and desirable to establish universal substantive rules governing state behavior, but either impossible or undesirable to achieve similar uniformity as to remedies due to diversity in what victim groups want.

In what cases, then, should the implementing rules adopted by international courts be understood to have the status of international law (IL), such that domestic governments are required to follow them when implementing their human rights obligations? If an international court claims that IL requires the particular remedial or substantive rule that it has adopted, that interpretation may be highly persuasive (if not binding) to other actors attempting to follow IL requirements. And international courts often do make such claims. For instance, they often claim that the remedies they impose are implicitly required by IHRL, because they are essential to the effective protection of the underlying right, taken together with the general right to an effective remedy for human rights violations.

The paper argues that such doctrinal rules, whether relatively expansive or

restrictive, should generally be taken seriously by domestic authorities as persuasive interpretations of IHRL. The rules spelled out in international treaties are too vague to be workable; they need content, and an approach that gives significant weight to international courts’ doctrinal rules is likely to encourage more consistent enforcement of IHRL. However, where international courts’ determinations are driven by considerations specific to their particular institutional concerns, they should carry less weight when considered by domestic courts or other actors that do not share those concerns. Some such situations—e.g., when international courts rely on a margin of deference to domestic authorities—should be understood as “underenforcement” cases, in which other actors may be legally obligated to follow broader interpretations of the requirements of IHRL. IHRL scholars—like domestic courts interpreting international judicial doctrine—have often failed to distinguish appropriately between these categories of cases. Finally, the paper considers the question of judicial candor about remedial shortfall. In IHRL, the dominant formulation of the “right to an effective remedy” requires “full” compensation. In practice, that ideal is often unrealistic, and remedial shortfall is ubiquitous. But courts have not articulated clear principles for when shortfall is acceptable, nor for what kinds of second-best remedies should be adopted. Instead,

they have either paid lip service to the “full remedy” ideal while ordering remedies that are plainly inadequate, or avoided the issue by finding no violation or no prejudice. Although there are some expressive and legitimacy-related advantages to this approach, the paper concludes that it is usually counterproductive, and that courts should grapple openly and seriously with the problems posed by remedial shortfall.

PROPOSAL 32

Pamela J. Stephens Vermont Law School

THE MARGIN OF APPRECIATION: DEFINING CORE RIGHTS AND RECONCILING COMPETING INTERESTS DRAFT PROPOSAL I. INTRODUCTION

In the application of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights has developed a discretionary doctrine it refers to as the “margin of appreciation.” This doctrine attempts to reconcile a member State’s interest in implementing human rights in the context of that State’s political, legal and cultural situation with the Court’s charge to exercise European supervision over the implementation of these human rights provisions.

One commentator has noted that in designing a system of international

enforcement of human rights “some interpretational tool is needed to draw the line between what is properly a matter for each community to decide at a local level and what is so fundamental that it entails the same requirement for all countries whatever the variations in traditions and cultures.1 He asserts that in the European system that function is served by the doctrine of “margin of appreciation.”2 Thus determination of what margin is to be allowed in a certain context is necessarily dependant upon the Court determining what core rights (if any) are at stake and the extent to which varying State law can be reconciled with those core rights.

The Court in applying the margin of appreciation over fifty years has taken into

account several different factors in addition to how fundamental the right involved is. These include the extent of interference with the right, how reasonable the justification for the interference and the degree of consensus among the European States concerning the content of and the permissible interference with this right.3

The first part of this article will explore the doctrine of margin of appreciation, its

place in the array of doctrines of discretion and interpretation and its development in the

1Paul Mahoney, Marvelous Richness of Diversity or Invidious Cultural Relativism, 19 HUMAN

RTS L.J. 1 (1998).

2Id.

3See, e.g., Lustig-Prean and Beckett v. the United Kingdom, www.echr.coe.int/eng/Judgments.htm (1999).

E.C.H.R.’s jurisprudence. This development has played out in the assertion of several different rights including, the rights to privacy, freedom of expression and religious freedom. However, this article will focus on the current development of the jurisprudence in this area as informed by cases dealing with the law of reproductive rights. The second part of the article will examine these cases, with a particular emphasis on two cases decided last year. These cases are singled out for two reasons: first, they illustrate the complex and varied factual situations in which reproductive rights issues may arise; second, they highlight two additional factors which may be key to the Court’s analysis.

The last part of the article will attempt to reconcile the seemingly inconsistent

threads of the Court’s recent cases and will propose a method of analysis that serves both core rights and the competing interests at stake. II. THE DOCTRINE OF MARGIN OF APPRECIATION III. THE REPRODUCTIVE RIGHTS CASES A. Evans v. The United Kingdom4

The applicant in this case, Ms. Natallie Evans is a British national who brought suit against the United Kingdom in the ECHR asserting that the U.K.’s Human Fertilisation and Embryology Act of 1990, which “requires her former partner’s consent before the embryos made with their joint genetic material can be planted in her uterus”5 is in violation of her rights under Articles 8 and 14 of the Convention and the embryo’s right to life under Article 2.6

1, The Decisions of the National Courts:

The facts of the case are briefly that Ms. Evans and her former partner (identified only as J in the court proceedings) sought treatment in July 2000 at the Bath Assisted Conception Clinic. [the Clinic]. In October 2000, in the course of that treatment it was discovered that Evans had “precancerous tumors” on both ovaries, that would require their removal. The couple was advised that it was possible, before the surgery would take place, for Evans to undergo one round of in vitro fertilization treatment, during which her eggs would be harvested.7

4Application No. 6339/05. Judgment 7 March 2006. “This judgment will become final under

Article 44 §2 of the Convention. It may be subject to editorial revision.”

5 Id. at §43

6 Id.

7Id. at §§ 7-8

During the October 2000 consultation at the Clinic, a nurse explained to Evans and J that they would each have to sign a separate form consenting to the IVF treatment and “that in accordance with the provisions of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”), it would be possible for either of them to withdraw his or her consent at any time before the embryos were implanted in [Evans’] uterus.”8 Evans asked whether her eggs might be frozen instead and was advised that the Clinic did not perform that procedure. At that point, J offered assurances to Evans that they would remain together and that he wished to father a child with her.9 The couple signed the consent forms. In November 2001, following treatment, six embryos were created and put in storage. On November 26, Evans underwent surgery to remove her ovaries and was advised that she should wait two years before attempting a pregnancy.10

In May 2002, the relationship between Evans and J ended and in July 2002, J wrote to the Clinic, withdrawing his consent and requesting that the six embryos be destroyed. Evans was notified of J’s withdrawal of consent and the Clinic informed her it was under a legal obligation to destroy the embryos pursuant to the 1990 Act.11 She then initiated legal proceedings in the High Court and sought “an injunction requiring J to restore his consent to the use and storage of the embryos and a declaration, inter alia, that he had not varied and could not vary his consent of 10 October 2001.”12 The Clinic was ordered to preserve the embryos pending the proceedings. The trial court dismissed the plaintiff’s claims13 and on appeal, the Court of Appeal affirmed that judgment.14 The Court of Appeal held “that the clear policy of the 1990 Act was to ensure the continuing consent of both parties from the commencement of

8Id. at § 9

9 Id. at §§ 10-11

10 Id. at § 12

11 Id. at §13

12 Id. In addition, Evans sought a declaration that the 1990 Act breached hewr rights under Artles

8, 12, and 14 of the Convention and the embryos’ rights under Articles 2 and 8.

13Evans v. Amicus Healthcare Ltd. and Others,(2003) EWHC 2161 (Fam).

14Evans v. Amicus Healthcare Ltd., [2004] EWCA Civ. 727. For a more comprehensive

discussion of these national court opinions, see also, Amel Alghrani, Deciding the Fate of Frozen Embryos,

13 Med. L. Rev. 244 (2005).

treatment to the point of implantation of the embryo, and that ‘the court should be extremely slow to recognise or to create a principle of waiver that would conflict with the parliamentary scheme.”15 The House of Lords refused Evans’ leave to appeal and she filed her application with the ECHR on February 11, 2005. 2. The Decision of the European Court of Human RightsAs was stated earlier, the applicant asserted that the provisions of the 1990 Act allowing for withdrawal of consent by one of the gamete donors up to the point of implantation are incompatible with several provisions of the European Convention. The ECHR did a detailed review of the 1990 Act. It noted that “[o]ne of the policy objectives of the 1990 Act was to promote the welfare of the child.”16 The Court found a second key policy objective of the Act was “to ensure that both gamete providers (i.e. the providers of the sperm and eggs) continued to consent from the commencement of the treatment until the implantation of the embryos.”17 The Court also reviewed the position of other States, including other member States of the Council of Europe., 18 the United States, 19 and

15Evans v. The United Kingdom at §18 , quoting the Court of Appeal decision.

16 Id. at §26 , quoting Section 13 (5) of the Act, which provides: “A woman shall not be provided

with treatment services unless account has been taken of the welfare of any child who may be born as a

result of the treatment (including the need of that child for a father), and of any other child who may be

affected by the birth.”

17 Id. at §27

18The Court found that Denmark, France, Greece, Switzerland and the Netherlands were in line

with the U.K. in that they by legislation allowed either party to withdraw consent up to the time of

implantation. Belgium, Germany and Finland appear to follow the same rule in practice and the Court says

Iceland Sweden and Turkey provide that “the male donor enjoys similar power of veto to that afforded by

the United Kingdom.” However, other countries have deviated from this model. Hungary allows the

woman to proceed, even in the face of death of her partner or divorce. Austria, Estonia and Italy only allow

the man to revoke consent up to the point of fertilization and Spain only allows the man to revoke consent

if he is married to and living with the woman.. Id. at §§31-32.

Israel.20 Finally, as its last reference to “relevant non-convention material,” the Court reviewed the international documents previously alluded to regarding Biomedicine and Bioethics. The Court then turned to the assertions regarding the Convention and disposed of the Article 2 contention rather summarily. Article 2 provides in relevant part that: “Everyone’s right to life shall be protected by law.” The Court noted that it had previously held that “in the absence of any European consensus on the scientific and legal definition of the beginning of life, the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere.”21 Since the English courts made it clear that an embryo does not have any independent rights and therefore cannot claim a right to life, the Court finds there can be no violation of Article 2. A violation of Article 8 of the Convention was also alleged. Article 8 provides: “1. Everyone has the right to respect for his private and family life. 2. There shall be no interference by a public authority with the exercise of this right except as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Court first notes that there is no dispute between the parties on the issue of whether Article 8 is applicable and that the case concerns applicant’s right to respect for her private life and the Court agrees.22

19 Id. at §§33-38, citing five cases decided by state courts, which reach differing conclusions

regarding one gamete provider’s right to proceed and the others right to withdraw consent. See, e.g., A.Z.

v. B.Z. 431 Mass. , 725 N.E. 2d 1051 (2000) versus Davis v. Davis, 842 S.W. 2d 588 (Tenn. 1992).

20 Id. at §39, See, Nachmani v. Nachmani, (50(4) P.D. 661(Isr.).

21 Id. at §46 , citing Vo v. France [GC], no 53924/00, §82 ECHR 2004.

22Id. at §57 . “‘Private life’ . . . . encompass[es],inter alia, aspects of an individual’s physical and

social identity including the right to personal autonomy, personal development and to establish and develop

relationships with other human beings and the outside world, . . . . incorporates the right to respect for both

the decisions to become and not to become a parent.”

Interestingly (and this is a point disputed by the dissenting opinion), the Court chooses to view this Article 8 issue as one concerning positive obligations of the State. It acknowledges that in the domestic courts it was treated as “an interference by the State with the applicant’s right to respect for her private life, since the relevant provisions of the 1990 Act prevented the Clinic from treating the applicant once J had withdrawn his consent.”23 But the Court would characterize the issue as “whether there exists a positive obligation on the State to ensure that a woman who has embarked on treatment for the specific purpose of giving birth to a genetically related child should be permitted to proceed to implantation of the embryo notwithstanding the withdrawal of consent by her former partner, the male gamete provider.”24

In assessing the extent of this positive obligation, the Court notes that “[s]ince the use of IVF treatment gives rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, and since the questions raised by the case touch on areas where there is no clear common ground amongst the Member States, the Court considers that the margin of appreciation to be afforded to the respondent State must be a wide one.”25

The applicant had argued before the Court that a wide margin should be granted to States regarding the question of whether to regulate IVF treatments, but once having decided to so regulate “it was under a duty to introduce a scheme with sufficient flexibility to ensure respect for human rights.”26 Such a scheme would permit exceptions to the consent provisions in hard cases and allow for the balancing of competing individual interests. The Court rejected this approach, which would distinguish the issue of intervention by the State in and the regulation by the State of IVF treatment. “The two questions are inseparably linked and the State’s wide margin must in principle extend both to its decision to intervene in the area and, once having intervened, to the detailed rules it lays down in order to achieve a balance between the competing public and private interests.”27

After extensive consideration of the drafting of the 1990 Act, the Court recalls that in previous cases it has found it was a violation of Article 8 for a State to legislate regarding aspects of private life without providing for the weighing or balancing “of

23 Id. at §58

24 Id.

25 Id. at §62

26 Id. at §50

27 Id. at §62

competing interests in the circumstances of each individual case.”28 The Court finds in this case “strong policy considerations underlay the decision of the legislature to favour a clear or ‘bright line” rule which would serve both to produce legal certainty and to maintain public confidence in the law in a highly sensitive field.”29 And while the Parliament might have struck a different balance in drawing its bright line and while it “has great sympathy for the plight of the applicant who, if implantation does not take place, will be deprived of the ability to give birth to her own child,”30 the Court concludes that the U.K., in adopting the 1990 Act, did not exceed the margin of appreciation granted to it and therefore there was no violation of Article 8. Applicant also alleged a violation of Article 14 taken in conjunction with Article 8. Article 14, the anti-discrimination provision, states that: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property birth or other status.”31

Applicant’s argument was that a fertile woman “was subject to no control or influence over how her fertilised eggs developed; from the moment of fertilisation she alone determined the future of the embryo.”32 She contrasted this with women such as herself who were “at the whim of the sperm donor.”33 The government’s response to this was that there was no discrimination because the implantation of the embryo in the woman was the equivalent of the fertilisation of an egg inside the woman following sexual intercourse. Having found that there was no violation of applicant’s rights under Article 8 in that the U.K. acted within its margin of appreciation, the Court holds there was not discrimination in violation of Article 14 even if there was differing treatment, because it cannot say that such treatment was without reasonable and objective justification.

28 Id. at §65, citing Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III and Odievre v.

France, no. 42326/98, ECHR 2003-II.

29 Id.

30 Id. at §§68-69.

31 Convention, at Article 14.

32 Id. at §70

33 Id.

B. Dickson v. The United Kingdom34

Illustrating the variety of situations in which issues concerning assisted reproductive technologies may exist, is the Dickson case. This case is brought to the ECHR on application of two British nationals, husband and wife, referred to by the court as first applicant and second applicant, respectively. First applicant, the husband, was born in 1972, and second applicant, the wife in 1958. The first applicant is currently in prison. He was convicted in 1994 of murder and sentenced to life imprisonment. His earliest possible release date is 2009. He has no children. The second applicant met her husband while she was serving a prison term. She was subsequently released and they were married in 2001. She has three children from other relationships.35 In October 2001, first applicant applied for facilities for artificial insemination. In December 2002, second applicant joined in this request. The applicants’ solicitors represented to the Secretary of State (who was charged with making the decision regarding applicants’ request) that because of second applicant’s age (she would be 51 at the earliest release date for first applicant) the couple were unlikely to be able to have a child together without artificial insemination.36

In a letter dated May 28, 2003, the Secretary of State denied the applicants’ request. In that letter he set out his policy regarding such requests by prisoners, 37 and the

34 Dickson v. the United Kingdom, no 44362/04, ECHR (2006)

35 Id. at §§4-6.

36Id. at §7.

37 Id. at §8. The policy is as follows: “Requests for artificial insemination by prisoners are carefully considered on

individual merit and will only be granted in exceptional circumstances. In reaching decisions particular attention is given to the following general considerations:

-whether the provision of AI facilities is the only means by which conception is likely to occur.

-whether the prisoner’s expected day of release is neither so near that delay would not be excessive nor so distant that he/she would be unable to assume the responsibilities of a parent

-whether both parties want the procedure and the medical authorities both inside and outside the prison are satisfied that the couple are medically fit to proceed with AI

-whether the couple were in a well established and stable relationship prior to imprisonment which is likely to subsist after the prisoner’s release

-whether there is any evidence to suggest that the couple’s domestic circumstances and the arrangements for the welfare of the child are satisfactory, including the length of time for which the child might expect to be without a father or mother

-whether having regard to the prisoner’s history, antecedents and other relevant factors there is evidence to suggest that it would not be in the public interest to provide artificial insemination facilities in a particular case.”

application of that policy to the applicants’ particular request. Though acknowledging that second applicant’s age at first applicant’s earliest possible date of release made the likelihood of her conceiving naturally small and the agreement of both applicants on the decision to have a child, the Secretary found other factors weighed against granting their request. His concerns included: that the relationship was begun in prison and had never existed outside that situation; that there were insufficient resources in place to provide for any child; that there was little or no support network for the mother and child; that any child would be without a father for several years and last “in light of the violence of the first applicant’s crime, there would be legitimate public concern that the punitive and deterrent elements of his sentence were being circumvented if he were allowed to father a child by artificial insemination.”38 After exhausting domestic remedies, applicants filed with European Court of Human Rights on November 23, 2004. In terms of relevant domestic law, the Court referred to the Prison Act, 1952, Section 47, which authorizes the Secretary of State to make rules for the management of prisons. The relevant rule here was Rule 4 of the Prison Rules 1999 (S.I. 1999, no. 728), which provides: “Outside contacts Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both. A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, n the opinion of the governor, best promote the interests of his family and his own social rehabilitation. The Court also considered a domestic court decision39 in which artificial insemination was denied to a 29 year old prisoner serving a life sentence for murder, whose earliest release date was in three years and whose wife was 25. They challenged the Secretary’s decision as an unjustified interference with their Article 8 rights. The Court of Appeal accepted two reasons asserted by the government for the policy: that “there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison”, and that “it was undesirable, as a general rule, for children to be brought up in single parent families.”40 For those reasons, the Court of Appeal found no disproportionate interference with applicants’ rights under Article 8. The Dickson applicants also alleged a violation of Article 8. The applicants argued that it should take “considerable justification to take away a fundamental right”41 Moreover, they argued that the policy outlined by the Secretary of State, proceeds in a backward

38 Id.

39 R(Mellor) v. Secretary of State for the Home Department ([2001] 3 WLR 533).

40 Id. at paragraphs 44ff.

41 Dickson v. the United Kingdom, at§21.

manner, in that it presumes no artificial insemination for prisoners absent exceptional circumstances, whereas applicants argue the assumption should be that they had a right to conceive absent compelling reasons against their doing so.42 As to the application of the policy to them, applicants would distinguish Mellor in that a denial of artificial insemination in their case would extinguish their right to found a family. And they point out that it is second applicant’s rights in particular which were being impacted here, thought the focus seemed to be on first applicant and his situation.43

The government argued that this restriction was a form of punishment “not disproportionate to the aim of maintaining a penal system designed to punish and deter.”44 There was no attempt to explain why second applicant should be “punished” at this point. The government also maintained that this policy was consistent with relevant Convention law as embodied in a series of European Commission decisions45 and consistent with the Convention because it enabled examination of the individual merits of each case.46 This was an interesting assertion in light of the Evans case. Lastly, the Government asserted that it should be afforded a wide margin of appreciation, since the case involved a positive obligation of the State to take action to promote Convention rights.47

The ECHR first acknowledges that “prisoners do not forfeit their Convention rights following conviction and sentence and continue to enjoy all fundamental rights and freedoms guaranteed under the Convention save for the right to liberty: those rights include the right to continue to enjoy respect for family and private life.”48 And the Court finds regarding this application that “artificial insemination relates to the applicants’ private and family life in such a way that the question of their access thereto falls within the ambit of Article 8.”49

The Court agrees with the Government’s position that the issue regarding the policy does not concern State interference with an established right, but rather “concerns the State’s refusal to take steps exceptionally to allow something (the possibility of the begetting of

42 Id.

43 Id. at §23.

44 Id. at §24.

45 Id.

46 Id.

47 Id.

48 Id. at §26

49 Id.

children by prisoners) not already an existing right or 50entitlement.” Thus the applicants are complaining that the State failed to fulfill a positive obligation. In discussing this “positive obligation”, the Court notes that there must be a balancing of the general interests of the community and the interest of the individual. In this situation “two principal aims underlie the policy: the maintenance of public confidence in the penal system and the welfare of any child conceived as a result of artificial insemination and, therefore, the general interests of society as a whole.”51 Both of these aims are viewed as valid by the Court and the criteria contained in the policy are not arbitrary or not reasonably related to the underlying aims of the policy. The Court goes on to consider whether application of this multi-factored policy is arbitrary or unreasonable on the facts, concludes that it is not and that therefore, given the wide margin of appreciation afforded to States, there is no violation of Article 8 of the Convention. A 4-3 decision was entered on each claim. IV. RECONCILING THE COURT’S VIEWS AND A PROPOSED ANALYSIS These cases raise several questions. Though the Court upholds the State’s position in each of these cases, effectively denying the applicants parenthood, the claims arise in such different contexts and under such differing “regulatory schemes,” that it seems worthwhile to tease them apart to see if any general conclusions can be drawn regarding underlying principles guiding the Court’s decisionmaking. First, in determining the extent of the margin of appreciation to be afforded to a State, it must be determined whether a fundamental or core right has been violated. So the question arises whether there is a right to procreate recognized by the Court. The views of members of the Court seem to vary on this. In Dickson, the concurring opinion of Judge Bonello states that: “Nothing in the Convention guarantees to a person a ‘right’ to procreate. What the Convention more cogently guarantees is the ‘right to found a family’ (Article 12).”52 He goes on to consider that right in the context of other social norms, concluding that he is “hardly convinced that procreating a child through artificial insemination by a life prisoner is embraced in the right secured by Article 12”.53 In contrast the dissenting opinion of Judges Casadevall and Garlicki cite the U.S. Supreme Court judgment in Skinner v. Oklahoma (1942), for the proposition that since that time “the fundamental nature of the right to procreate has been recognized in constitutional jurisprudence.”54 They also cite the decision in the Evans case, which says that Article 8 of the European Convention “incorporates the right to respect for both the decisions to

50 Id. at §30

51 Id. at §33.

52 Id. at §4, concurring opinion, J. Bonello.

53 Id.

54 Id. (dissenting opinion of Judges Casadavell and Garlicki).

become and not to become a parent.”55 The dissenting opinion in Evans refers variously to the applicant’s Article 8 “right to become a mother”, and “right to have a child.”56 It should be noted that this opinion also refers to J’s competing “right not to become a father against his will.”57

The only thing that seems clear from these opinions is the Court generally recognizes that the Article 8 right to respect for privacy and the Article 12 right to found a family encompass a core of fundamental interests having to do with decisions of whether and when to become a parent that are subject to protection by the Convention and some regulation by the member States.58

Second, the Court highlights in these cases two additional factors that may influence the Court’s decisions regarding the margin of appreciation. The first of these factors has to do with the nature of the competing interests involved. In Dickson it is the State’s interests versus the individual interests of the applicants. In Evans, that conflict exists as well as conflicting individual interests between the applicant and J. In addition, in both cases, one could argue that the interests of the State in maintaining a wide margin of appreciation must be balanced against the European interest in uniform, consistent application of the Convention rights. As a second additional factor, the Court raises in both cases the negative versus positive obligation issue and the members of the Court express some apparent disagreement about the consequences of making such a characterization, particularly in terms of how wide a margin of appreciation is to be granted to the State. A final question to be resolved concerns the methodology one might employ in the application of the Convention rights and the determination of the margin of appreciation and is illustrated by the nature of the State’s decisionmaking process in each of these cases. In the Evans case the Court affirms the State’s rigid “bright line” standard under the 1990 Act, which admits of no exception nor consideration of any mitigating factors. In Dickson, the Court affirms the State’s use of a highly individualized standard, which vests broad discretion in the decision maker. Is there anything inconsistent in the Court’s affirmation of these widely differing practices? Does the margin of appreciation doctrine allow the Court to consider whether the underlying policies of the State’s law or the underlying rights involved might be better served by providing for a more rather than less individualized decision? Any principled analysis in this area that will have predictive value for upcoming cases requires the Court to take into consideration the intersection of all of these concerns. We may assume for purposes of this analysis that a core or fundamental right under the Convention is at stake (though how fundamental that right is and the extent of the

55 Evans at §57.

56 Id. at §§2-3, dissenting opinion of Judges Traja and Mijovic.

57 Id.

58 Evans acknowledges this in §57 of the opinion.

interference with that right continue to be relevant variables). However, the last issue raised concerning the method of decisionmaking to be employed by the State is necessarily related to the question of how to reconcile competing interests, which in turn may be influenced by the characterization of the State’s obligation as either positive or negative under the Convention. For example, in Evans, the applicant asserts that it is only as to the question of State interest versus her individual interest that a wide margin of appreciation should be granted. However, with regard to her interests versus J’s interests, that is, with regard to implementing the law in her particular case, the margin of appreciation should be much narrower. The dissenting opinion in Evans is more sympathetic to the distinction that applicant would make and would find that the U.K.’s 1990 Act impairs “the very core of applicant’s right” to become a mother, which is not acceptable under the Convention.59 The dissenters recognize the State’s public interest in regulating IVF treatment and in protecting individuals when they have conflicting rights, but would find “in the present case the conflict is more acute between individual interests than between the private and public interest,”60 and that “the particular private life interests at stake here should be made the focus of the Court’s analysis.”61

The dissenters are concerned that the 1990 Act privileges one private interest over all others: that of the party withdrawing consent to be a parent.62 They would find in the Convention’s Article 8 protections a “duty to strike a fair balance between individual rights in conflict” and that this duty “remains . . . the same invariable and imperative requirement under the Convention for all member States.”63

Thus, rather than a “bright-line” rule, these dissenters would require a more individualized scheme, which would create a presumption that “the interests of the party who withdraws consent and wants to have the embryos destroyed should prevail (if domestic law so provides), unless the other party (a) has no other means to have a genetically related child; and (b) has no children at all; and (c) does not intend to have recourse to a surrogate mother in the process of implantation.”64

The remainder of this article will attempt to explain how the multiple variables outlined above interact and what that means for the enforcement of human rights generally in the European system. The article will conclude that the requirement of an individualized determination in these cases seems more likely to serve the competing interests at stake

59 Evans v. the United Kingdom at §2, dissenting opinion.

60 Id. at §3.

61 Id.

62 Id. at §4.

63 Id. at §5.

64 Id. at §9

(as the Court seems to acknowledge in Dickson), particularly where individual interests collide. What the individualized decisions in the reproductive rights cases should take into account, of course, raises difficult ethical and moral issues. Whether the Evans dissenters have struck the appropriate balance can be debated, but as the dissenters note, rigid “bright-line” rules can lead to “irreparable harm or to the destruction of the essence of one party’s rights” and for those reasons should be strictly scrutinized by the Court.