Spring 2011 - American Branch of the International Law Association

Transcription

ILSA JOURNAL OF INTERNATIONAL & COMPARATIVE LAW
NOVA SOUTHEASTERN UNIVERSITY
SHEPARD BROAD LAW CENTER
Volume 17
Spring 2011
Number 2
EDITORIAL BOARD
NATHANIEL G. DUTT
Editor-in-Chief & Executive Board Member
REASEY NGOUN-COLON
STEPHANIE A. FENSTERSHEIB
Managing Editor & Executive Board Member
Executive Editor & Executive Board Member
WILLIAM L. TUCKER
NAZARENA CELESTE OCON
Lead Articles Editor & Executive Board Member
Bilingual Editor & Executive Board Member
CHRISTINE M. WHITED
STEPHANIE M. TAYLOR
Lead Technical Editor
Senior Articles Editor
COREY K. SETTERLUND
Subscriptions Editor & Articles Editor
FACULTY ADVISORS
DOUGLAS L. DONOHO
ELOISA C. RODRIGUEZ-DOD
JUNIOR STAFF MEMBERS
Christopher Brown
Staci Burton
Martavis Clarke
Cristina Cossio
Alana Faintuch
Rayna Karadbil
Jennifer Lemberger
Nicholas LeRoy
Jany Martinez
Michel Morgan
Alan Reinfeld
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Jordan Rubin
Gabriela Urbina
Rafaela Vianna
Antoinette Williams
Alicia Zweig
Nova Southeastern University
Shepard Broad Law Center
ADMINISTRATION
Athornia Steele, B.A., J.D., Dean of the Law School & Professor of Law
Leslie Larkin Cooney, B.S., J.D., Associate Dean for Academic Affairs & Professor
of Law
Catherine Arcabascio, B.A., J.D., Associate Dean for International, Online and
Graduate Programs & Professor of Law
Linda F. Harrison, B.A., J.D., Associate Dean, Critical Skills Program & Associate
Professor of Law
Janet Mosseri, B.S., J.D., Associate Director for Student Affairs
Paula A. Habib, B.S., Assistant Dean for Administration
Robert Hudson, B.A., M.A., J.D., M.L.S., Interim – Director Law Library &
Technology Center, Head of Information Services & Adjunct Professor
Linda Lahey, B.S., M.B.A., Assistant Dean for Publications and Special Events
Lynn Acosta, B.A., M.S., Assistant Dean for Student Services
Beth Hall, B.A., M.S., Assistant Dean for Admissions
Nancy Kelly Sanguigni, B.S., M.B.A., Assistant Dean for Clinical Programs
Jennifer McIntyre, B. S., M.S., Assistant Dean for Online Programs
Robert Levine, B.S., J.D. Assistant Dean of Career Development
FACULTY
John B. Anderson, B.A., J.D., LL.M., Distinguished Visiting Professor of Law
Catherine Arcabascio, B.A., J.D., Professor of Law
Timothy Arcaro, B.S., J.D., Professor of Law
Heather Baxter, B.A., J.D., Assistant Professor of Law
Brion Blackwelder, B.S., J.D., Director, Children & Families Clinic & Associate
Professor of Law
Ronald Benton Brown, B.S.M.E., J.D., LL.M., Professor of Law
Randolph Braccialarghe, B.A., J.D., Professor of Law
Barbara Britzke, M.A.T., J.D., LL. M, Critical Skills Program Instructor
Johnny C. Burris, B.G.S., J.D., LL.M., Professor of Law
Marilyn Cane, B.A., J.D., Professor of Law
Bernadette Carnegie Baugh, B.S., M.S.M.F.T., Administrative Director, Critical
Skills Program
Kathy Cerminara, B.S., J.D., LL.M., Professor of Law
Meg Chandelle, B.S., M.B.A., J.D., Director of Advanced Lawyering Skills & Values
& Adjunct Professor of Law
Anthony Chase, B.A., J.D., LL.M., Professor of Law
David R. Cleveland, B.A., J.D., Assistant Professor of Law
Phyllis G. Coleman, B.S., M.Ed., J.D., Professor of Law
Leslie Larkin Cooney, B.S., J.D., Professor of Law
Jane Ellen Cross, B.A., J.D., Director of Caribbean Law Programs and Associate
Professor of Law
Debra Moss Curtis, B.A., J.D., Associate Professor of Law
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Michael J. Dale, B.A., J.D., Professor of Law
Mark Dobson, B.A., J.D., LL.M., Professor of Law
Douglas Lee Donoho, B.A., J.D., LL.M., Professor of Law
Olympia Duhart, B.A., J.D., Assistant Professor of Law
Lynn A. Epstein, B.S., J.D., Professor of Law
Michael Flynn, B.A., J.D., Professor of Law
Angela Gilmore, B.A., J.D., Professor of Law
Pearl Goldman, B.C.L., M. Phil., LL.B., J.D., LL.M., Professor of Law
Colleen Grady, M.S., Ed.D., J.D., Critical Skills Program Instructor
Robert Gregg, J.D., Critical Skills Program Instructor
Joseph M. Grohman, B.A., M.A., J.D., Professor of Law
Richard Grosso, B.S., J.D., Director, Environmental & Land Use Law Clinic and
Associate Professor of Law
Gwen Thayer Handelman, B.A., J.D., Scholar in Residence
Joseph D. Harbaugh, B.S., J.D., LL.B., LL.M., Dean Emeritus & Professor of Law
Linda F. Harrison, B.A., J.D., Associate Dean, Critical Skills Program & Associate
Professor of Law
David Herwitz, Distinguished Visiting Professor of Law
Joseph Hnylka, B.A., J.D., Assistant Professor of Law
Areto Imoukhuede, B. A., J.D., Assistant Professor of Law
Robert M. Jarvis, B.A., J.D., LL.M., Professor of Law
Alicia Jackson, M.P.A., J.D., Critical Skills Program Instructor
Judith Karp, B.A., M.L.S., J.D., Professor of Law
Shahabudeen Khan, J.D., Critical Skills Program Instructor
Ishaq Kundawala, B.A., J.D., Assistant Professor of Law
P. Camille Lamar, B.A., J.D., Assistant Professor of Law
Elena Langan, B.A., J.D., Assistant Professor of Law
Betsy Levin, A.B., LL.B., LL.D., Visiting Professor of Law
Robert C. Levine, B.S., J.D., Assistant Dean, Career Services & Adjunct Professor
of Law
James B. Levy, B.A., J.D., Assistant Professor of Law
Kenneth Lewis, B.A., J.D., Assistant Professor of Law
Ovid C. Lewis, A.B., J.D., LL.M., J.S.D., Professor Emeritus of Law
Donna Litman, A.B., J.D., Professor of Law
Elena Marty-Nelson, B.A., J.D., LL.M., Professor of Law
Michael R. Masinter, B.A., J.D., Professor of Law
Jani E. Maurer, B.A., J.D., Professor of Law
Howard Messing, A.B., J.D., Professor Emeritus of Law
Joel A. Mintz, B.A., J.D., LL.M., J.S.D., Professor of Law
Heddy Muransky, M. Ed., J.D., Critical Skills Program Instructor
Anthony Niedwiecki, B.A., J.D., LL.M., Director of First Year LSV Program &
Assistant Professor of Law
Timothy A. O’Brien, B.A., M.A., J.D., Distinguished Visiting Professor of Law
Roma Perez, B.A., J.D., Assistant Professor of Law
Patricia Murphy Propheter, M.A. Ed., J.D., Critical Skills Program Instructor
Rodney Rawls, J.D., LL. M., Critical Skills Program Instructor
Gail Levin Richmond, A.B., M.B.A., J.D., Professor of Law
Michael L. Richmond, A.B., M.S.L.S., J.D., Professor of Law
Eloisa C. Rodriguez-Dod, B.B.A., M.B.A., J.D., Professor of Law
Bruce S. Rogow, B.B.A., J.D., Professor of Law
Marc Rohr, B.A., J.D., Professor of Law
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John Sanchez, B.A., J.D., LL.M., Professor of Law
Florence Bih Shu-Acquaye, LL.B., LL.M., J.S.M., J.S.D., Professor of Law
Charlene Smith, B.A, M.A., J.D., LL.M., Professor of Law
Michele Struffolino, M.A Ed., JD., Assistant Professor of Law
Fran L. Tetunic, B.A., J.D., Director, Alternative Dispute Resolution Clinic &
Associate Professor of Law
James D. Wilets, B.A., M.A., J.D., Professor of Law
Tania Williams, B.A., J.D., LL. M., Critical Skills Program Instructor
Steven Wisotsky, B.A., J.D., LL.M., Professor of Law
Carol Yecies, B.A., J.D., Acting Associate Director of Information and
Administration & Adjunct Professor of Law
ADJUNCT FACULTY
Scott Atherton, B.S., J.D.
Ross Baer, B.A., J.D.
Steve Ballinger, B.A., J.D.
Roshawn Banks, B.S., J.D.
Lorna Banister, B.S., J.D.
Marylin Batista-McNamara, B.S., J.D.
Leyza Blanco, B.A., J.D.
Gabrielle Bouza, B.S., J.D.
Mark Bromley, B.S., J.D.
Dale A. Bruschi, B.S., J.D.
Robert Campbell, B.A., J.D., M.P.H.,
Ph.D.
Lydia Cannizzo, B.H.S., J.D.
Meg Chandelle, B.S., M.B.A., J.D.
Michele Chang, B.A., J.D., M.H.A.
Judith Chorlog, B.S., J.D.
Howard Citron, B.S., J.D.
Steven M. Collard, B.A., M.Ed.
Michael Constantino, B.A., J.D.
Christopher Crane, B.S., J.D.
Charles Curtis, B.S., J.D.
Morton A. Diamond, B.A., M.D.
Robert F. Diaz, A.A., B.A., J.D.
Ken S. Direktor, B.A., J.D.
Susan Dubow, B.S.
Rebecca Feinberg, B.A., J.D.
Jane Fishman, B.A., J.D.
Rex J. Ford, B.S., J.D.
Steve Friedland, B.A., J. D., LL. M.,
J.S.D.
John A. Frusciante, B.A., M.S., J.D
Myrna Galligano, B.A., J.D.
Stuart Gold, B.A., J.D.
Adam S. Goldberg, B.S., J.D., LL.M.
Anthony Gonzalez, B.A., J.D.
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Warren Kwavnick, B.C., J.D.
Barbara Landau, B.A., J.D., LL.M.
Steven Leigh, B.S., M.S., J.D., Ph. D.
Allan M. Lerner, B.A., J.D.
Robert Levine, B.S., J.D.
James Lewis, B.A., J.D.
Juan Lopez-Campillo, B.A., J.D.,
LL.M.
Rochelle Marcus, B.S., M.ED., J.D.
Lisa A. McNeils, B.A., J.D.
Catherine M. Michael, B.A., J.D.
Elena R. Minicucci, B.A., J.D.
Seema Mohapatra Reddy, B.A.,
M.P.H.,
Kenneth Morgan, Jr., B.A., J.D.
Alberto Moris, B.A., J.D.
Gerald Morris, B.A., J.D.
Charles Morton, B.A., J.D.
John Napolitano, B.A., J.D.
Matthew Nelles, B.S., J.D.
Alice Nelson, B.A., M.S.W., J.D.
Paul A. Nidich, B.A., J.D., LL.M.
Mark Nurik, B.A., J.D.
Elizabeth Pendo, B.A., J.D.
Byron Petersen, B.A., J.D.
Laura Pincus, B.A., M.A., J.D.
Gary A. Poliakoff, B.S., J.D.
Ivan Reich, B.A., J.D.
Israel Reyes, A.A., B.S., J.D.
Christine Rickard, B.A., J.D.
H. John Rizvi, B.S., J.D.
Michael Rocque, B.A., J.D.
Jose A. Rodriguez-Dod, B.S., J.D.
Denise Roland, B.A. J.D.
Jon Rosenthal, B.A., J.D.
Diana Santa Maria, B.A., J.D.
Jessica Santiago, B.A., J.D.
Philip G. Schlissel, B.A., J.D.
Carl Schoeppl, B.S., J.D.
Adam Schulman, B.A., M.S., Ph.D.
Robert Schwartz, B.A., J.D.
Neal Shniderman, B.A., J.D.
Jodi Siegel, B.A., J.D.
Samuel Smargon, Ph.D., J.D.
Scott Smiley, B.S., J.D.
Mindy Solomon, B.S., J.D.
Richard Stone, B.A., J.D.
Frank Terzo, B.A., J.D.
Debbie Thaler, B.A., J.D.
Ellen S. Tilles, B.A., M.S.W., Ed.S.,
J.D.
Damian Thomas , B.B.A., J.D.
Daniel S. Weinger, B.B.A., J.D.
Camille Worsnop, B.S., J.D., LL.M
Carol Yecies,B.A,, J.D.
Bruce Zimet, B.A., J.D.
Robert C. Grosz, B.A., M.S., Ed.D.
Gwen Handleman, B.A., J.D.
Tonja Haddad, B.A., J.D.
Ross Hartog, B.S., J.D.
Robert Hartsell, B.A., J.D.
Douglas F. Hoffman, B.S., B.A., J.D.
Alfred Horowitz, B.A., J.D., LL.M.
Julie Hough, B.A., J.D.
Robert Hudson, B.A., M.A., J.D.,
M.L.S.
Cynthia Imperato, B.S., M.S., J.D.
William Isenberg, B.A., J.D.
Yasmin Jacob, B.A., J.D.
Judith Jarvis, B.A., J.D.
Linnea Johnson, B.A., J.D.
Nick Javanovich, B.S., J.D., LL.M
Norman Kaplan, B.S., J.D., LL.M.
Daniel L. Kaufman, B.S., J.D.
Phyllis Kotey, B.A., J.D., M.A.
Pamela Krauss, B.S., M.S., J.D.
Ira Kurzban, B.S., J.D.
LIBRARY STAFF
Robert Hudson, B.A., M.A., J.D., M.L.S. Interim – Director Law Library &
Technology Center, Head of Information Services & Adjunct Professor
Carol Yecies, B.A., J.D., Associate Law Library Director for Information
Services and Administration
Frank Novak, B.A., J.D., Director of Network Services
Mary Paige Smith, B.A., M.L.S., Associate Law Library Director for Technical
Services
Donna Struthers, B.A., M.L.S., Assistant Head of Technical Services for
Cataloging & Database Management
Stephan Sobchak, B.S., Technology Development Manager
Angie Stramiello, B.A., M.L.S., Reference Librarian
Alison Rosenberg, B.A., J.D., Reference/Electronic Services Librarian
Stephanie Hess, B.A., M.L.I.S., Assistant Head of Technical Services,
Acquisitions & Serials
Jason Rosenberg, B.A., M.B.A., M.I.S., Information Systems Administrator
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EDITOR’S NOTE
International Law Weekend (ILW) was an incredible experience
that I will remember for years to come. This International
Practitioners’ Notebook is based on panelist presentations made
during the 2010 ILW, as presented by the International Law Student
Association (ILSA) and the American Branch of the International
Law Association (ABILA). The panels discussed a plethora of
subjects regarding the topic of “International Law and Institutions:
Advancing Justice, Security and Prosperity.” It was an honor to be
invited to join so many distinguished international law practitioners,
scholars, and government officials. Having the opportunity to work
with many of these individuals, as intellectuals and authors, served to
propagate a deep respect for international law. Thus, on behalf of the
ILSA Journal of International & Comparative Law, I would like to
take this opportunity to sincerely thank all of our prestigious authors
for their contributions to this issue; it is a privilege to publish their
articles. Their generous amounts of hard work, time, and input
throughout the publication process are evident throughout this
periodical.
I would like to acknowledge those persons whose thoughts,
efforts, and achievements made this publication a reality. Special
gratitude is owed to the complete ILSA and ABILA staffs for such a
well organized and successful event—without them, this issue would
not exist. Also, thank you to the entire editorial board for
accompanying me to New York City and working with such
diligence throughout the semester; it was an unforgettable
opportunity to work with you all during this academic year. Further,
I owe an immense amount of gratitude to the entire staff of the ILSA
Journal for their unyielding efforts and continuous energy spent in
editing the articles—my tenure was enormously fulfilling because of
you all, and your efforts do not go unappreciated.
Great appreciation goes to our faculty advisors, Douglas Donoho
and Eloisa Rodriguez-Dod, for advising the ILSA Journal and for
their steadfast encouragement and abilities to resolve surfacing
predicaments. Lastly, I would personally like to thank my closest
family members and friends—although I may live more than 1,000
miles from home, I know you love me and support my decisions and
career selection.
As evident from the pages within this issue, it was an honor to
work with the brightest minds in the international legal community. I
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hope you will enjoy reading this publication as much as I have
enjoyed being a part of it. So without further ado, it is my pleasure to
introduce the ILSA Journal of International and Comparative Law’s
Volume 17, Issue 2; the International Practitioners’ Notebook edition
for 2010 ILW conference.
Nathaniel Gregory Dutt
Editor-in-Chief, 2010–2011
April 13, 2011
viii
ILSA JOURNAL OF INTERNATIONAL & COMPARATIVE LAW
SHEPARD BROAD LAW CENTER
Volume 17
Spring 2011
Number 2
TABLE OF CONTENTS
Disability-Inclusive Development
Inaccessible Justice: Human Rights, Persons with
Disabilities and the Legal System………………Stephanie Ortoleva
281
The Evolution of Corporate Accountability for Human
Rights Abuses
A Human Rights Framework for Corporate
Accountability…………………………………... Jeanne M. Woods
321
Domestic and International Legal Responses to
Emerging Migration Issues
The International Court of Justice and the Question of
Kosovo’s Independence………………………………..John Cerone
335
International Migration: Trends, Challenges, and the Need
for Cooperation within an International Human Rights
Framework…………………………………………...Ved P. Nanda
355
How Does International Development Law Coexist with
Traditional Sovereignty over Economic
Resources and Activities?
Critical Essay—A “Re-visioned” Foreign Direct Investment
Approach from an Emerging Country Perspective: Moving
from a Vicious Circle to a Virtuous Cycle………….. .. Rumu Sarkar
ix
379
Evaluating the 1979 Moon Agreement
The Moon Agreement and Private Enterprise: Lessons from
Investment Law………………………………...Timothy G. Nelson
393
State Responsibility for Refugees in Times of
Occupation
Beyond Occupation: Protected Persons and the Expiration of
Obligations……………………………………………..Tom Syring
417
A Pirate and a Refugee: Reservations and Responses in the
Fight Against Piracy……………………………………Tom Syring
437
Pathways to Employment in International Law
Tortured Law/Tortured “Justice”—Joint Criminal Enterprise
in the Case of Aloys Simba………………………….Beth S. Lyons
x
459
THE AMERICAN BRANCH
of the
INTERNATIONAL LAW ASSOCIATION
Presents
International Law Weekend 2010
“International Law and Institutions:
Advancing Justice, Security and Prosperity”
October 21–23
Thursday events held at the
House of the Association of the Bar of the City of New York
42 West 44th Street, New York City
Friday and Saturday panels held at
Fordham University School of Law
140 West 62nd Street, New York City
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THE AMERICAN BRANCH
of the
Gratefully Acknowledges the Generous Support of
the Following Co-Sponsors
___________
American Bar Association Section of International Law
Allen & Overy LLP
American Society of International Law
American University, Washington College of Law
Baker & McKenzie LLP
Brill/Martinus Nijhoff Publishers
California Western School of Law
Connecticut Bar Association Section of International Law
Customs and International Trade Bar Association
Debevoise & Plimpton LLP
Edwards Angell Palmer & Dodge LLP
The Federalist Society International & National Security Law
Practice Group
Fordham University School of Law
Freshfields Bruckhaus Deringer LLP
The George Washington University Law School
Hofstra University School of Law
ILSA Journal of International and Comparative Law
Leitner Center for International Law and Justice
New York State Bar Association, International Law Section
Oxford University Press
Pace Law School
Seton Hall University School of Law
Simpson, Thacher & Bartlett LLP
Skadden, Arps, Slate, Meagher & Flom and Affiliates
Willkie Farr & Gallagher LLP
Wilmer Cutler Pickering Hale & Dorr LLP
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2010 ILW CO-CHAIRS
Elizabeth Burleson
University of South Dakota Law School
Hanna Dreifeldt Lainé
United Nations Office of Legal Affairs
Jill Schmieder Hereau
International Law Students Association
Vincent J. Vitkowsky
Edwards Angell Palmer & Dodge LLP
PATRONS OF THE AMERICAN BRANCH OF THE
Charles N. Brower
David D. Caron
Edward Gordon
Cynthia Lichtenstein
Ved Nanda
John F. Murphy
James A.R. Nafziger
John E. Noyes
Charles D. Siegal
xiii
THE AMERICAN BRANCH
of the
(FOUNDED 1873)
Chair, Executive Committee
Charles D. Siegal
President
John E. Noyes
Vice Presidents
Valerie Epps
Gary N. Horlick
Leila Nadya Sadat
David P. Stewart
Ruth Wedgwood
Honorary Vice Presidents
Charles N. Brower
Edward Gordon
P. Nicholas Kourides
Luke T. Lee
Cynthia C. Lichtenstein
Robert B. von Mehren
John F. Murphy
James A.R. Nafziger
Ved P. Nanda
Cecil J. Olmstead
Alfred P. Rubin
Honorary Secretary
Houston Putnam Lowry
Acting Honorary Treasurer
Anne Siegal
Executive Committee
William Aceves
Catherine Amirfar
Kelly Dawn Askin
Jeffery C. Atik
David J. Bederman
Ronald A. Brand
Lorraine M. Brennan
Christina M. Cerna
Paul R. Dubinsky
Malvina Halberstam
Scott Horton
Karen A. Hudes
Philip M. Moremen
Aníbal Sabater
Michael P. Scharf
Louise E. Teitz
Nancy Thevenin
Susan Tiefenbrun
George K. Walker
Peter K. Yu
xiv
ILW PANELS
THURSDAY, OCTOBER 21
6:00pm — 7:30pm
The Role of the United Nations in the Development of International
Law
The UN Charter directs the General Assembly to initiate studies and
make recommendations for the purpose of encouraging the
progressive development and codification of international law. For
this purpose, the Assembly established the International Law
Commission, and a wide range of international instruments have been
adopted. This panel examines how and to what extent the General
Assembly, through the International Law Commission and otherwise,
has discharged its responsibility in this area, including its challenges,
successes and failures.
Moderator:
Patricia O’Brien, Under-Secretary-General for Legal
Affairs and the UN Legal Counsel
Panelists:
Donald McRae, Hyman Soloway Professor of Law,
University of Ottawa, Member, United Nations
International Law Commission; Brian Hook, Founding
Partner, Latitude, LLC, former Assistant Secretary of
State for International Organizations; W. Michael
Reisman, McDougal Professor of International Law,
Yale Law School
FRIDAY, OCTOBER 22
9:00am — 10:30am
The International Court of Justice’s Role in Resolving the Kosovo
Crisis
In 2008, the UN General Assembly requested an advisory opinion
from the ICJ on the following question: “Is the unilateral declaration
of independence by the Provisional Institutions of Self-Government
of Kosovo in accordance with international law?” The Court received
written statements from 36 states plus Kosovo and comments from
14 states plus Kosovo. The Court issued its advisory opinion in July
2010. The panelists will discuss the implications of the Court’s
opinion, paying particular attention to the role of the Court in settling
international disputes in the volatile arena of secession.
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Chair:
Valerie Epps, Professor and Co-Director of the
International Law Concentration, Suffolk University
Law School, Vice-President and Co-Director of
Studies of ABILA
Panelists:
Christopher Borgen, Professor and Associate Director
for International Studies, St. John’s University School
of Law, ABILA representative to the Recognition/NonRecognition in International Law Committee of the
International Law Association; John Cerone, Professor
and Director of the Center for International Law and
Policy, New England School of Law, ABILA
representative to the Human Rights Law Committee
of the International Law Association; Brad Roth,
Associate Professor of Political Science and Law,
Wayne State University, ABILA representative to the
Recognition/Non-Recognition in International Law
Committee of the International Law Association;
Ralph Wilde, Reader, Faculty of Laws, University
College London, University of London
FRIDAY, OCTOBER 22
9:00am — 10:30am
Global versus Local: International Law and Institutions, Customary
Law and Human Rights in Africa
This panel will explore the complex relationship between traditional
African legal systems and the international human rights regime. In
an increasingly globalized, yet also very localized, world many
international rules and standards face challenges when implemented
in local contexts, particularly in the field of human rights. The panel
will discuss both the challenges and opportunities for international
human rights standard penetration to the community level, with a
focus on promoting standards’ relevance and impact for
disadvantaged and vulnerable groups.
Moderator:
Paolo Galizzi, Associate Clinical Professor of Law and
Director, Sustainable Development Legal Initiative,
Leitner Center for International Law and Justice,
Fordham Law School
xvi
Panelists:
Anna Bossman, Commissioner, Commission for Human
Rights and Administrative Justice, Ghana; Tracy
Higgins, Professor of Law and Faculty Co-Director,
Leitner Center for International Law and Justice,
Fordham Law School; Muna B. Ndulo, Professor of
Law, Director of the Institute for African
Development, Cornell University Law School; Thoko
Kaime, Lecturer in Law and Deputy Director, Surrey
International Law Centre (SILC) School of Law,
University of Surrey
FRIDAY, OCTOBER 22
9:00am — 10:30am
Non-Party Discovery in Aid of Arbitration under the FAA and U.S.
Discovery in Aid of Foreign and International Tribunals under
Section 1782
This panel will explore the availability of, scope and procedures for
obtaining discovery of non-parties for use in arbitrations under
Section 7 of the Federal Arbitration Act. It will also explore the
availability of, scope and procedures for obtaining discovery located
in the U.S. for use in international arbitrations, whether seated in the
U.S. or abroad, under 28 U.S.C. § 1782, which authorizes federal
district courts to grant discovery in the U.S. in aid of “foreign or
international tribunals.” Finally, it will examine the relationship
between FAA Section 7 and Section 1782 from the perspectives of
the parties, non-parties, arbitrators and the courts.
Moderator:
Robert Smit, Partner, Simpson Thacher & Bartlett LLP
Panelists:
Dana MacGrath, Partner, Allen & Overy LLP; Tim
Nelson, Partner, Skadden, Arps, Meagher & Flom
LLP; Steven H. Reisberg, Partner, Willkie Farr &
Gallagher LLP; David Zaslowsky, Partner, Baker &
McKenzie LLP
FRIDAY, OCTOBER 22
9:00am — 10:30am
Private International Law and Cross Border Consumer Redress
International instruments of private international law have
traditionally treated consumer transactions as a special category in
xvii
the application of rules regarding jurisdiction and applicable law.
Recent completion of some new instruments and current negotiation
of others raise questions about the effectiveness of traditional
conflicts rules as tools for the protection of consumer interests. An
alternative approach being considered in some intergovernmental
negotiations focuses on providing inexpensive alternative dispute
resolution, including online dispute resolution. This panel will
consider consumer protection provisions of existing instruments as
well as substantive and procedural consumer protection alternatives,
in particular, those being considered in the OAS/CIDIP process.
Moderator:
Louise Ellen Teitz, Professor of Law, Roger Williams
University School of Law, Member, ABILA
Executive Committee, Co-Chair, ABILA Commercial
Dispute Resolution Committee, ABILA representative
to the International Commercial Arbitration and
International Protection of Consumers Committees of
the International Law Association
Panelists:
Ronald A. Brand, Professor of Law, University of
Pittsburgh School of Law, Member, ABILA
Executive Committee; Michael Dennis, Office of
Private International Law, Office of the Legal Adviser,
U.S. Department of State; Claudia Lima Marques,
Professor, Federal University of Porto Alegre, Brazil
Colin Rule, Director of Online Dispute Resolution,
Paypal/Ebay; Hugh Stevenson, Deputy Director, Office
of International Affairs, U.S. Federal Trade Commission
FRIDAY, OCTOBER 22
9:00am — 10:30am
Disability-Inclusive Development
In the developing world and in every country after natural disasters,
there is a crucial need to create environments that include the broadest
possible spectrum of people with disabilities. Spurred on in part by
the United Nations Convention on the Rights of Peoples with
Disabilities (UNCRPD), there is currently a vibrant international
discussion about and efforts toward making this possible. This panel
will discuss the development issues, as well as comments on the
UNCRPD generally and prospects for U.S. ratification.
xviii
Panelists:
Michael Waterstone, J. Howard Ziemann Fellow and
Professor of Law, Loyola Law School Los Angeles
Tara Melish, Associate Professor and Director of
Buffalo Human Rights Center, Buffalo Law School
Janet Lord, Blue Law Group International
Maya Sabatello, Professor, New York University
Center for Global Affairs and Columbia University
FRIDAY, OCTOBER 22
10:45am — 12:15pm
The International Criminal Court: The Way Forward After the
Kampala Review Conference
This past June, an historic agreement was reached to amend the
Rome Statute of the International Criminal Court to add a definition
of the crime of aggression and conditions for the exercise of
jurisdiction. Hear key interlocutors during the Review Conference
negotiations discuss how the final agreement was concluded, and
their views on the compromises reached, including exempting nonStates Parties (such as the U.S.) from jurisdiction, and only activating
jurisdiction in the future (potentially in seven years).
Moderator:
Jennifer Trahan, Assistant Clinical Professor of Global
Affairs, New York University, NGO observer to the
International Criminal Court Review Conference,
Kampala, Uganda, Chair, ABILA International
Criminal Court Committee
Panelists:
Stefan Barriga, Deputy Permanent Representative of
the Principality of Liechtenstein, to the United Nations,
Legal Adviser of the President of the Assembly of
States Parties of the International Criminal Court; Todd
Buchwald, Assistant Legal Adviser for United Nations
Affairs, U.S. Department of State, Member, U.S.
Delegation, International Criminal Court Review
Conference, Kampala, Uganda; John Washburn,
Convenor, The American Non-Governmental
Organizations Coalition for the International Criminal
Court, NGO observer to the International Criminal
Court Review Conference, Kampala, Uganda
xix
FRIDAY, OCTOBER 22
10:45am — 12:15pm
Climate Change, Energy and the Implications for International Law
This panel will consider some energy options, including
geoengineering and nuclear technology, which are presently being
considered to mitigate climate. Panelists will evaluate the international
law and policy options for and gaps in exploring new energy options in
responding to climate change. Panelists will take both practical and
theoretical approaches to their analyses. Each panelist will make brief
presentation followed by Q&A.
Panelists:
Deepa Badrinarayana, Assistant Professor of Law,
Chapman University School of Law; Elizabeth
Burleson, Associate Professor of Law, University of
South Dakota School of Law, Co-Chair, International
Law Weekend; William C.G. Burns, Editor in Chief,
Journal of International Wildlife Law & Policy,
Climate Change and Geoengineering Law and Policy
Expert, Co-Chair, ABILA International Environmental
Law Committee; David Hunter, Associate Professor of
Law, American University Washington College of
Law; Elizabeth Trujillo, Associate Professor of Law,
Suffolk University Law School
FRIDAY, OCTOBER 22
10:45am — 12:15pm
Update on the European Union and the Treaty of Lisbon
The Treaty of Lisbon entered into force on December 1, 2009. Major
changes have been effected by the Treaty including the creation of a
President of the European Council and a High Representative for
Foreign Affairs. The Pillar system is abolished, and the Parliament
has an increased role. The Charter of the Fundamental Rights of the
European Union is now legally binding, and the EU will accede to the
European Convention on Fundamental Rights and Freedoms. In
addition, during this past year the EU has had to manage the
economic crises in various member states. This panel will address
these and other issues, including the recent ICJ advisory opinion
concerning Kosovo.
Chair:
Elizabeth F. Defeis, Professor of Law, Seton Hall
University School of Law
xx
Panelists:
Roger Goebel, Professor and Director, Fordham Center
on European Union Law; Hugo Kaufmann, Professor
and Director, European Union Studies Center, CUNY
Graduate Center; Mattias Kumm, Professor of Law and
Director, LL.M./J.S.D. Program in International and
Comparative Law, New York University School of
Law; Roland Tricot, Legal Advisor, European Union
Delegation to the UN
FRIDAY, OCTOBER 22
10:45am — 12:15pm
International Litigation and Human Rights
Can claims for human rights violations be brought in a jurisdiction
other than where the alleged violation was committed? Are
transnational class actions for human rights violations here to stay?
Can U.S. courts grant discovery in aid of foreign human rights
claims? Can foreign civil judgments on human rights be enforced in
the United States? Are supranational courts working? Experienced
practitioners will address these and other related questions, including
the Alien Tort Statute, as human rights justice appears to go global.
Moderator:
Aníbal M. Sabater, Fulbright & Jaworski LLP,
Member, ABILA Executive Committee, Chair, ABILA
Extraterritorial Jurisdiction Committee
Panelists:
Catherine M. Amirfar, Debevoise & Plimpton LLP,
Member, ABILA Executive Committee; Edward G.
Kehoe, King & Spalding LLP; David P. Stewart,
Visiting Professor of Law, Georgetown University
Law Center, Vice President of the ABILA, ABILA
representative to the International Protection of
Consumers Committee of the International Law
Association
FRIDAY, OCTOBER 22
10:45am — 12:15pm
Book Discussion of Cohen and DeLong, The End of Influence: What
Happens When Other Countries Have the Money
In a format new to the ILW conference, moderator Cynthia
Lichtenstein is proposing that attendees of this session discuss the
xxi
provocative book “The End of Influence, What Happens When Other
Countries Have the Money” by Stephen S. Cohen and J. Bradford
DeLong, and topics addressed therein including sovereign wealth
funds, the renminbi, China’s economic policy, and global imbalances.
She has asked the “speakers” listed below to begin by briefly making
comments on the book, and to then draw all those in attendance into
the discussion. Attendees are encouraged to read the book before
attending the session, but for those who are unable to do so a short
summary of its contents will be provided.
Moderator:
Cynthia Crawford Lichtenstein, Professor Emeritus,
Boston College Law School, Honorary Vice President
and Patron of ABILA, ABILA representative to the
International Monetary Law and International
Securities Law Committees of the International Law
Association, Vice Chair of the International Law
Association Executive Council
Panelists:
Eric Pan, Professor, Cardozo School of Law; Anna
Gelpern, Associate Professor of Law, American
University Washington College of Law; Rhoda WeeksBrown, Assistant General Counsel, International
Monetary Fund
FRIDAY, OCTOBER 22
12:30pm — 2:00pm
U.S. Nuclear Weapon Policy and International Law on Nuclear
Disarmament
With a historic call for “a world without nuclear weapons” by
President Obama in April 2009, what steps have been taken by the
Obama administration so far to promote such an important goal? Will
the new steps taken by the United States contribute to a further
nuclear disarmament in the world, as well as to a positive
development in international law on arms control and nuclear
disarmament?
Moderator:
John H. Kim, Esq., Co-Chair, ABILA Arms Control
and Disarmament Committee
Panelists:
Commander James Kraska, Howard S. Levie Chair of
Operational Law, U.S. Naval War College, Chair,
xxii
ABILA Use of Force Committee; John Burroughs,
Esq., Executive Director, Lawyers Committee on
Nuclear Policy
FRIDAY, OCTOBER 22
12:30pm — 2:00pm
Legal Mechanisms for Advancing Environmental Human Rights and
Environmental Security
This roundtable panel will discuss various legal mechanisms for
advancing environmental human rights and environmental security. It
will address the prevalence and enforceability of constitutionally
embedded rights to a quality environment around the globe, and the
role that international and regional courts and tribunals can play in
advancing environmental human rights, including reference to
recurring debates on the possible establishment of an international
environmental court. It will also focus on questions of collaborations
between the UN and domestic civilian and military entities in
addressing security concerns triggered by environmental change,
which can act as a threat multiplier for instability in some of the most
fragile regions of the world, and thereby present significant national
security challenges for international institutions and domestic
governments.
Panelists:
Carl Bruch, Senior Attorney and Co-Director of
International
Programs,
Environmental
Law
Institute; Melanne Civic, Special Advisor to the Center
for Complex Operations, National Defense University,
U.S. Department of State Office of the Coordinator for
Reconstruction and Stabilization; James R. May, H.
Albert Young Fellow in Constitutional Law, Widener
University School of Law; Ole W. Pedersen, Lecturer,
Newcastle Law School, University of Newcastle upon
Tyne
FRIDAY, OCTOBER 22
12:30pm — 2:00pm
Using Mediation to Resolve International Parental Child Abduction
Cases
This program will explore the ethics, feasibility, efficacy and
propriety of using elective mediation to resolve international parental
child abduction and cross-border child custody cases. Panelists will
xxiii
provide practice pointers for the effective use of mediation in this
complex, high-conflict context. Participants will learn about existing
programs already successfully employing mediation in the
international parental abduction context.
Panelists:
Melissa A. Kucinski, Esq., Bulman, Dunie, Burke &
Feld, Chtd.; Morna P. Ellis, Esq., ACCORD Global,
LLC
FRIDAY, OCTOBER 22
3:00pm — 4:30pm
The Evolution of Corporate Accountability for Human Rights Abuses
While nation-states have long been obligated to protect and respect
individual human rights, parameters within which the obligations and
liabilities of private sector actors in this area exist have grown with
the globalization of markets. This panel will look at recent
developments in law in this area, considering the work of the UN
Special Representative on Business and Human Rights, and the
principles and norms embodied in hard, soft and case law in an
international context.
Panelists:
Marie Soveroski, Managing Director, EarthRights
International Katie Gallagher, Senior Staff Attorney,
Center for Constitutional Rights; Sarah Altschuller,
Foley Hoag LLP; Jeanne M. Woods, Professor of Law,
Loyola University New Orleans College of Law
FRIDAY, OCTOBER 22
3:00pm — 4:30pm
Managing Discovery in International Commercial Arbitration: The
Institutional Response
As parties with international commercial disputes of increasing
complexity turned to arbitration for resolution, litigation discovery
tools employed in U.S. courts were frequently imported into the
process. Some arbitration critics charged that the resulting evolution
in the arbitral process turned it into little more than private litigation.
The panel discussion will highlight how arbitral institutions are
responding and attempting to preserve speed and economy in the
process, along with reactions from arbitrators and practitioners.
xxiv
Moderator:
Philip D. O’Neill, Jr., Adjunct Professor of
International Arbitration, Boston College Law
School, Partner, Edwards Angell Palmer & Dodge
LLP, ABILA representative to the International
Commercial
Arbitration
Committee
of
the
International Law Association
Panelists:
John Wilkinson, JAMS, Co-Chair of the Arbitration
Committee and Member of the Executive
Committee of the Dispute Resolution Section of the
New York State Bar Association; Gene Farber, CCA
Board Member, Adjunct Professor of Alternate
Dispute Resolution, Pace University School of Law,
Partner, Farber, Pappalardo & Carbonari; Lorraine
Brennan, Senior Vice President, International Institute
for Conflict Prevention and Resolution, New York,
Adjunct Professor of Law, Georgetown University
Law Center, Member, ABILA Executive Committee;
Victoria Shannon, Deputy Director, Arbitration &
ADR, North America, ICC International Court of
Arbitration; John V. H. Pierce, Partner, International
Arbitration Group, Wilmer Cutler Pickering Hale & Dorr
LLP; Luis Martinez, Vice President, International
Centre for Dispute Resolution – A Division of the
American Arbitration Association, President, InterAmerican Commercial Arbitration Commission
FRIDAY, OCTOBER 22
3:00pm — 4:30pm
Domestic and International Legal Responses to Emerging Migration
Issues
The panel’s focus will be on the national and international regulation
of migration. The panel will review the current migration landscape
and the challenges it poses for states as they explore the ways to
regulate its various aspects. Developments in Europe and the U.S.
will be examined, with special emphasis on the impact of
international law on the U.S. immigration regime. Also discussed
will be refugee and asylum issues and the criminalization of
migration.
xxv
Moderator:
Ved P. Nanda, John Evans Distinguished University
Professor and Director, International and Comparative
Legal Studies, University of Denver Sturm College of
Law, Honorary Vice President and Patron of ABILA
Panelists:
James A.R. Nafziger, Thomas B. Stoel Professor of
Law
and
Director
of
International
Law
Programs, Willamette University College of Law,
Honorary Vice President and Patron of ABILA, Chair,
Cultural Heritage Law Committee of the International
Law Association, ABILA representative to
Reparations for Victims of Armed Conflict Committee
of the International Law Association; Daniel H.
Derby, Professor of Law and Director of International
Programs, Touro Law Center; David Aronofsky,
General Counsel, University of Montana
FRIDAY, OCTOBER 22
3:00pm — 4:30pm
The Limits of International Adjudication
The decisions of international adjudicatory bodies are of increasing
significance. There are more “international courts” than ever before,
and many are wielding real power. But are there limits on what these
international courts can or should do? Are there times when their
legitimacy or authority runs out? Should such courts ever abstain
from jurisdiction or defer to national decisions? And what happens
when these international courts overreach? This panel explores the
limits of international adjudication.
Panelists:
Elena A. Baylis, Associate Professor of Law,
University of Pittsburgh School of Law; Harlan Grant
Cohen, Assistant Professor of Law, University of
Georgia School of Law; Nienke Grossman, Assistant
Professor, University of Baltimore School of Law;
Molly Beutz Land, Associate Professor of Law, New
York Law School
xxvi
FRIDAY, OCTOBER 22
4:45pm — 6:15pm
How Does International Development Law Coexist with Traditional
Sovereignty over Economic Resources and Activities?
The ABILA Bilateral Investment Treaty and Development
Committee’s expert panel will consider the structure, key protections
and procedures, and possible weaknesses of the United States
Bilateral Investment Treaty Program. The panel will give particular
attention to the competing aims of American investors and
developing nations. Should bilateral investment treaties foster
development? Do they? How should “the right of establishment” be
interpreted? And how should the legal rights to “fair and equitable
treatment” and “effective administrative regulation” be balanced?
The panel will also address particular investment and development
challenges of the intensifying bilateral relationships of China, South
Africa, and the United States.
Moderator:
Roberto Aguirre Luzi, King & Spaulding LLP, CoChair, ABILA Bilateral Investment Treaty and
Development Committee
Panelists:
José Alvarez, Herbert and Rose Rubin Professor of
International Law, New York University School of
Law, member of the U.S. State Department’s Subcommittee on Investment; Rumu Sarkar, Adjunct
Professor of Law, Georgetown Law Center; Senior
Legal Advisor, Calibre Systems; Greg Young,
Professor, California State Polytechnic University
College of Business, Co-Chair, ABILA Bilateral
Investment Treaty and Development Committee
FRIDAY, OCTOBER 22
4:45pm — 6:15pm
Responsibility to Protect: The Relationship betweenHuman Dignity
and State Sovereignty
Responsibility to Protect (R2P) is the practical outgrowth of global
cosmopolitanism. It proposes a universal standard of human security
that states have an obligation to promote and protect. Proponents of
R2P suggest that it elevates human values over state sovereignty. But
can values such as human dignity be promoted in a system of weak
state sovereignty? From where does a state’s responsibility for people
xxvii
in other nations arise? Why might a state exercise such responsibility
apart from other state interests?
Chair:
Neomi Rao, Assistant Professor of Law, George
Mason University School of Law
Moderator:
Julian Ku, Professor of Law, Hofstra University
School of Law
Panelists:
Frank Chalk, Professor, Concordia University
(History); Director of the Montreal Institute for
Genocide and Human Rights Studies ; Jeremy Rabkin,
Professor of Law, George Mason University School of
Law; Neomi Rao, Assistant Professor of Law, George
Mason University School of Law; Fernando R. Tesón,
Tobias Simon Eminent Scholar, Florida State
University College of Law, Co-Chair, ABILA
Formation of Rules of Customary International Law
Committee
FRIDAY, OCTOBER 22
4:45pm — 6:15pm
15 Years of TRIPS Implementation
On January 1, 1995, the WTO Agreement on Trade-Related Aspects
of Intellectual Property Rights entered into effect. This timely panel
examines the past implementation of this important treaty and the
upcoming challenges confronting the international intellectual
property regime.
Chair:
Peter K. Yu, Kern Family Chair in Intellectual
Property Law & Director, Intellectual Property Law
Center, Drake University Law School, Member,
ABILA Executive Committee
Panelists:
Margaret Chon, Associate Dean for Research and
Centers and Donald & Lynda Horowitz
Professor for the Pursuit of Justice, Seattle University
School of Law; Sean Flynn, Professor and Associate
Director, Program on Information Justice and
Intellectual
Property,
American
University
Washington College of Law; Daniel J. Gervais,
xxviii
Professor of Law and Co-Director, Technology &
Entertainment Law Program, Vanderbilt University
School of Law; Doris Estelle Long, Professor and
Chair, Intellectual Property, Information Technology
and Privacy Group, The John Marshall Law School
SATURDAY, OCTOBER 23
9:00am — 10:30am
Treaty Claims in U.S. Courts after Medellín v. Texas
In Breard v. Greene, 523 U.S. 371 (1998), Sanchez-Llamas v.
Oregon, 548 U.S. 331 (2006), and most recently, Medellín v. Texas,
552 U.S. 491 (2008), the Supreme Court has addressed two critical
sets of issues involving treaty law: the extent to which U.S. treatymakers can “delegate outward” judicial power to international
tribunals, as well as how U.S. courts should distinguish between selfexecuting and non-self-executing treaties. This panel explores these
issues with a special focus on history, doctrine, and the prospect of
future litigation.
Panelists:
Donald Francis Donovan, Partner, Debevoise &
Plimpton LLP; Martin Flaherty, Leitner Family
Professor of International Law, Leitner Center for
International Law and Justice at Fordham Law School,
Visiting Professor, Woodrow Wilson School of Public
and International Law; Thomas H. Lee, Leitner Family
Professor of Law and Director of International Studies,
Fordham Law School; David Sloss, Professor of Law
and Director, Center for Global Law and Policy, Santa
Clara University School of Law
9:00am — 10:30am
UN Security Council and WMD Proliferation
This panel will discuss the United Nations Security Council’s efforts
to implement, preserve and universalize international law regulating
the proliferation of weapons of mass destruction (WMD). The
Security Council has addressed WMD proliferation in many of its
resolutions since the end of the Cold War, both in the discrete context
of individual states (e.g., Iraq, Iran, North Korea), as well as through
more generalized normative statements (e.g., Resolution 1540
(2004)). However, the manner in which the Security Council has
xxix
addressed WMD proliferation in its resolutions has raised a number
of interesting legal questions, some of which go to core issues of the
scope and character of the authority of the Security Council.
Chair:
Masahiko Asada, Professor, Kyoto University
Panelists:
Matthew Happold, Professor, University of
Luxembourg; Daniel Joyner, Associate Professor of
Law, University of Alabama School of Law, ABILA
Representative to the Nuclear Weapons, NonProliferation and Contemporary International Law
Thomas Wuchte, Senior Advisor, U.S. Department of
State
9:00am — 10:30am
War, Philosophy, and International Law
Robust, exciting philosophical literature about war has emerged
recently. The panel will explore the fit (or lack thereof) between
standard international law doctrines and the principles (many of them
contested) proposed by that literature. The discussion will cover both
jus in bello and jus ad bellum: the right to kill in war, the principles
of proportionality, the justice of the cause, non-combatant immunity,
self-defense, humanitarian intervention, and the nature of
asymmetrical conflict.
Chair:
Fernando R. Tesón, Tobias Simon Eminent Scholar,
Florida State University College of Law,
Co-Chair, ABILA Formation of Rules of Customary
International Law Committee
Panelists:
Claire Finklestein, Algernon Biddle Professor of Law
and Professor of Philosophy, University of
Pennsylvania School of Law; Jeff McMahan, Professor
of Philosophy, Rutgers University; Robert D. Sloane,
Associate Professor of Law, Boston University School
of Law; Gabriella Blum, Assistant Professor, Harvard
Law School
xxx
9:00am — 10:30am
Behind the Red Curtain: Environmental Concerns in the End of
Communism
Explanations for the collapse of Communism focus on dramatic
features like Solidarność in Poland and the launching of perestroika
and glasnost, as well as a yearning for democracy and human rights
and the desire for higher standards of living. Yet Communist
governments had functioned for decades without serious challenge
and with no obvious reason not to continue for decades more. In
many of these countries, the missing piece of the puzzle of the
collapse of these regimes was their dismal record on the
environment.
Chair:
Elizabeth Burleson, Associate Professor of Law,
University of South Dakota School of Law,
Co-Chair, International Law Weekend
Panelists:
Joseph W. Dellapenna, Professor of Law, Villanova
Law School; John Dernbach, Professor of Law and
Director, Environmental Law Center, Widener Law
School, Harrisburg; Maxim Yasus, Professor,
Academy of Social Relations, Irkutsk, Russia
9:00am — 10:30am
Evaluating the 1979 Moon Agreement
This treaty has been controversial since its signing. It has only been
ratified by thirteen states. Among its provisions are Art. 11(1) (“The
moon and its natural resources are the common heritage of
mankind”) and Art. 11(5) concerning the establishment of an
international regime governing “the exploitation of the natural
resources of the moon.” The panel will examine the Agreement in
relation to perspectives regarding economic theory, property rights,
Latin American views on the Common Heritage of Mankind,
environmental protection and lessons from investment law.
Panelists:
Jonathan F. Galloway, Co-Chair, ABILA Space Law
Committee, Vice President, International Institute of
Space Law, ABILA representative to the Space Law
xxxi
Henry Hertzfeld, Co-Chair, ABILA Space Law
Committee, Professor, Center for International
Science and Technology Policy, Space Policy Institute,
George Washington University; Joanne Irene
Gabrynowicz, Professor of Law and Director, National
Center for Remote Sensing, Air and Space Law, The
University of Mississippi School of Law, Editor-inChief, Journal of Space Law, ABILA representative to
the Space Law Committee of the International Law
Association; Rafael Moro Aguilar, Head of Legal
Affairs, Orbspace, ABILA representative to the Space
Law Committee of the International Law Association;
Timothy G. Nelson, Partner, Skadden, Arps, Slate,
Meagher & Flom, LLP; Leslie I. Tennen, Law Offices
of Sterns and Tennen
10:45am — 12:15pm
Is Targeted Killing Legal?
The Obama administration has increased the use of targeted killing of
al Qaeda and Taliban leaders. State Department Legal Adviser
Harold Koh has provided justifications under both the law of war and
the inherent right of self defense. The UN Special Rapporteur on
extrajudicial executions has raised questions, including the
geographical scope of the battle zone and the involvement of the
CIA. The ACLU has challenged the targeting of American citizens.
This panel will examine these and related issues under international
and domestic law.
Moderator:
Vincent J. Vitkowsky, Partner, Edwards Angell Palmer
& Dodge LLP, Adjunct Fellow, Center for Law and
Counterterrorism, Co-Chair, International Law
Weekend
Panelists:
Mary Ellen O’Connell, Short Chair in Law and
Research Professor, Kroc Institute, University of Notre
Dame, Chair, Use of Force Committee, International
Law Association; Benjamin Wittes, Senior Fellow and
Research Director in Public Law, The Brookings
Institution, Member of Hoover Institution Task Force
on National Security and the Law
xxxii
10:45am — 12:15pm
State Responsibility for Refugees in Times of Occupation
This roundtable will address issues relating to the obligations of
occupying powers to refugees, internally displaced persons, stateless
persons, and protected persons under Geneva IV, such as: Does an
occupying power carry primary responsibility for the protection of
people whose lives were specifically affected by war or intervention,
irrespective of the legitimacy of those acts? Do such obligations
extend beyond the time of occupation, and what is the nexus between
prolonged occupation and refugee status?
Moderator:
Jaya Ramji-Nogales, Associate Professor, Temple
University Beasley School of Law
Panelists:
Anna Dolidze, Research Fellow, Cornell University
Law School; Richard Falk, Research Professor in
Global and International Studies, University of
California, Santa Barbara; Andrew Solomon, Foreign
Policy Fellow and Deputy Director, Brookings-Bern
Project on Internal Displacement, Brookings
Institution;
Tom
Syring,
Legal
Adviser,
UNE/Norwegian Immigration Appeals Board
10:45am — 12:15pm
Bribery: What is it, What Can Be Done, What Should Be Done, and
How to Comply?
International enforcement of business bribery and corruption laws,
including the U.S. Foreign Corrupt Practices Act (“FCPA”), has
greatly expanded during the past ten years. That such an expansion
has occurred during a period of economic recession further
compounds the compliance challenges global companies face when
conducting business abroad. However, against the backdrop of
aggressive enforcement of bribery and corruption laws, several basic
questions remain unanswered. This roundtable panel will explore
what is bribery, what can be done to eliminate bribery, what should
be done to eliminate bribery, and how to comply with bribery and
corruption laws.
xxxiii
Co-Chairs:
Mike Koehler, Assistant Professor of Business Law,
Butler University; Corinne Lammers, Of Counsel,
Paul, Hastings, Janofsky & Walker LLP
Panelists:
Bruce Bean, Lecturer in Global Corporate Law and
Co-Director, LL.M. Program, Michigan State
University College of Law; Daniel C.K. Chow, Joseph
S. Platt Porter Wright Morris & Arthur Professor of
Law, The Ohio State University Michael E. Moritz
College of Law; Elizabeth Spahn, Professor of Law,
New England School of Law ǀ Boston; Andy
Spalding, Visiting Assistant Professor of Law,
Chicago-Kent College of Law
10:45am — 12:15pm
Foreign Official Immunity After Samantar v. Yousuf
The U.S. Supreme Court held in Samantar v. Yousuf that the common
law, not the FSIA, governs the immunity of current and former
foreign officials. Very little has been written in recent decades about
this area of the common law. This roundtable address the history and
scope of common law immunity as well as questions such as the role
of the Executive branch in determining immunity, and how U.S.
courts should proceed in light of Samantar.
Moderator:
Beth Stephens, Professor, Rutgers School of Law,
Camden
Panelists:
David P. Stewart, Visiting Professor of Law,
Georgetown
University
Law
Center;
Vice
President of the ABILA; Chimène Keitner, Associate
Professor of Law, University of California Hastings
College of the Law; Curtis A. Bradley, Richard A.
Horvitz Professor of Law and Professor of Public
Policy Studies, Duke Law School; Douglas HallwardDriemeier, Partner, Ropes & Gray LLP
xxxiv
10:45am — 12:15pm
Protecting the Most Vulnerable from Environmental Harm
Environmental problems have differential impacts across societies.
Ethicists talk about the responsibility to protect those most vulnerable
to adverse impacts. Vulnerabilities differ with wealth, location, age,
gender, health, and other variables, as well as with the nature of the
environmental problem. This session will consider how different
international environmental agreements protect people and/or
ecosystems most at risk from the problems addressed by the
agreement. Speakers will evaluate protections in individual
agreements and identify effective protective strategies.
Chair:
Marilyn Averill, University of Colorado at
Boulder
Panelists:
Daniel Magraw, President and Chief Executive
Officer, Center for International Environmental Law,
Member, Role of Soft Law Instruments in International
Investment Law Study Group of the International Law
Association; Dinah Shelton, Manatt/Ahn Professor of
International Law, The George Washington
University Law School; Edith Brown Weiss, Francis
Cabell Brown Professor of International Law; CoDirector, Joint Degree in Law and Government,
Georgetown University Law Center
2:00pm — 3:00pm
Pathways to Employment in International Law
A unique forum that brings law students and new lawyers together
with experienced practitioners to explore opportunities for
employment in international law. Learn about international internship
opportunities, how to network with legal experts from around the
world, practice in other legal systems and cultures, become active in
international organizations and societies, and how to develop legal
and interpersonal skills. Sponsored by the ABA Section of
International Law and ILSA.
Moderator:
William Patterson, Executive Director, International
Law Students Association
xxxv
Panelists:
Michael P. Scharf, John Deaver Drinko–Baker &
Hostetler Professor of Law and Director of the
Frederick K. Cox International Law Center at Case
Western Reserve University School of Law, Chairman
of the Board of the International Law Students
Association, Member of the Executive Committee of
the ABILA; Beth S. Lyons, Defence Counsel at
International Criminal Tribunal for Rwanda (ICTR);
Hansdeep Singh, Senior Staff Attorney, International
Civil and Human Rights Advocate
3:00pm — 4:15pm
Immigration Law
Moderator:
Charles Siegel, Munger Tolles & Olson LLP; Chair of
the Executive Committee of ABILA
Panelists:
Lenni Benson, Professor of Law, New York Law
School; Dagmar Butte, Parker Butte & Lane, PC,
Member of the Board of the International Law
Students Association; Rachel Settlage, Director of the
Law Asylum and Immigration Law Clinic, Wayne
State University Law School
3:00pm — 4:15pm
Practicing International Law at NGOs and International
Organizations
Moderator:
Paul R. Dubinsky, Associate Professor of Law, Wayne
State University Law School; Member of the Executive
Committee of ABILA
Panelists:
Hanna Dreifeldt Lainé, Legal Officer, Codification
Division, United Nations Office of Legal Affairs, CoChair of International Law Weekend; John Burroughs,
Executive Directors, Lawyers Committee on Nuclear
Policy; Marie Severovski, Managing Director,
EarthRights International
xxxvi
4:30pm — 5:45pm
International Litigation and Arbitration
Moderator:
Paul R. Dubinsky, Associate Professor of Law, Wayne
State University Law School, Member of the Executive
Committee of ABILA
Panelists:
Lucy Martinez, Freshfields, Bruckhaus Deringer LLP;
Natalie Reid, Debevoise & Plimpton LLP; Steven
Reisberg, Willkie Farr & Gallagher LLP
xxxvii
INACCESSIBLE JUSTICE: HUMAN RIGHTS,
PERSONS WITH DISABILITIES AND THE LEGAL
SYSTEM
Stephanie Ortoleva, Esq.∗
I.
II.
III.
ABSTRACT ....................................................................................... 282
WHAT IS ACCESS TO JUSTICE AND WHY IS IT IMPORTANT TO
PERSONS WITH DISABILITIES? ......................................................... 284
THE LEGAL FRAMEWORK................................................................ 287
A. Under the United Nations Convention on the Rights of
Persons with Disabilities......................................................... 287
B. Under Other International Conventions ................................. 292
C. Regional Treaties .................................................................... 298
*
Stephanie Ortoleva is an attorney with expertise in international human rights law and
U.S. civil rights law. Currently, she is the Senior Human Rights Legal Advisor with the leading
international human rights law firm BlueLaw International, LLP, where she focuses on disability rights,
women’s rights and rule of law issues, with concentrations on human rights programming in developing,
transition and post-conflict countries. Ms. Ortoleva also is an Adjunct Professor at American University
School of International Service and will be a Visiting scholar at the University of Hawai’i in Spring
2012. She is the founding Co-Chair of the American Society for International Law’s International
Disability Rights Interest Group. Previously, Ms. Ortoleva served as an Attorney and Human Rights
Officer at the U.S. Department of State, where she participated in the negotiations of the UN
Convention on the Rights of Persons with Disabilities, serving on the United States governmental
delegation. Ms. Ortoleva also engaged in extensive work at the United Nations and Organization of
American States on international disability rights and on women’s issues, including, women’s role in
peace-building and post-conflict resolution. She was given the prestigious U.S. Department of State
Franklin Award in 2009 for her outstanding work on human rights matters and was the featured
Department employee for women’s history month in 2009. She is a frequent speaker at conferences and
other events and has numerous publications on women’s rights, disability rights and multilateral
diplomacy, including a Chapter in “Lawyers, Lead On”, American Bar Association Publishing, March
2011; “Right Now! Women with Disabilities Build Peace Post Conflict”, Center for Women’s Policy
Studies, Barbara Waxman Fiduccia Papers April 2011; “The Forgotten Peace Builders: Women with
Disabilities, Loyola of Los Angeles International and Comparative Law Review, Spring 2011; with her
colleague Marc Brenman, “Corporations & the Human Rights of Persons with Disabilities”, RI Journal,
April 2011; with her colleague Marc Brenman “Women’s Issues in Transportation” In K. Lucas (Ed.),
Running on Empty: Transport, Social Exclusion and Environment Justice (pp. 257-279). London:
Policy Press, 2004; among others. She developed the website www.WomenEnabled.org to bring
attention to the urgent need to include women and girls with disabilities in international resolutions,
policies and programs. She graduated from Hofstra University School of Law with outstanding honors.
The author wishes to thank her research assistant Lisa M. Coleman for her outstanding and
creative assistance; Janet E. Lord, Senior Partner at BlueLaw International for her expertise and support;
Akiko Ito, Chief, Secretariat for the United Nations Convention on the Rights of Persons with
Disabilities for her commitment to the rights of persons with disabilities; and Frank Della-Penna, her
ever-supportive husband and life partner, for his patience and assistance.
282
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[Vol. 17:2
IV.
HIGHLIGHTS OF SPECIFIC AREAS OF DENIALS OF ACCESS TO
JUSTICE FOR PERSONS WITH DISABILITY ........................................ 299
A. As People Seeking to Learn About or to Obtain Information
on How the Justice System Works ........................................... 299
B. As a Member of a Disabled Persons Organization
Advocating for Disability Rights ............................................. 300
C. As Clients Generally ............................................................... 300
D. As Lawyers .............................................................................. 303
E. As Jurors ................................................................................. 304
F. As Persons Seeking Access to the Courthouse ........................ 305
G. As Criminal Defendants and As Prisoners.............................. 307
V.
COMMON BARRIERS TO DISABILITY INCLUSION IN RULE OF LAW
PROGRAMMING ............................................................................... 313
VI. STRATEGIES FOR ACHIEVING INCLUSION OF DISABLED PERSONS
IN RULE OF LAW PROGRAMMING .................................................... 314
A. Legal Analysis, Research, and Institution Reform .................. 314
B. Training Judges, Lawyers, and other Justice Professionals ... 315
C. Judges and Lawyers with Disabilities ..................................... 315
D. Disabled Persons and Disabled Peoples Organizations......... 315
E. Crime and the Criminal Justice System .................................. 315
F. Community Education and Awareness Raising ...................... 316
G. Physical Access to Courts and Judicial Tribunals .................. 316
VII. CONCLUSIONS AND RECOMMENDATIONS MOVING FORWARD ....... 317
I. ABSTRACT
This paper focuses on the important concept of access to justice and
what it means to persons with disabilities. It also addresses how the United
Nations (UN) Convention on the Rights of Persons with Disabilities
(CRPD) provides for awareness of the requirements to provide access to
justice for persons with disabilities.
Part II seeks to answer the question of what is access to justice and
why it is important for persons with disabilities. “Access to Justice” is a
broad concept, encompassing peoples’ effective access to the systems,
procedures, information, and locations used in the administration of justice.
Persons with disabilities have often been denied access to fair and equal
treatment before courts, tribunals, law enforcement officials, prison
systems, and other bodies that make up the justice system in their country,
because they have faced barriers. Additionally, persons with disabilities
have been discriminated against in terms of attaining positions as lawyers,
judges, and other officials in the justice system. Such barriers not only
limit the ability of persons with disabilities to use the justice system, but
also limit their ability to contribute to the administration of justice to
2011]
Ortoleva
283
society and to the community as a whole. This important right is
enumerated in Article 13 of the CRPD.
Part III outlines the legal framework in which this right is developed.
Subpart A explores the right under the CRPD. Subpart B outlines the
comparable right in other international conventions and Subpart C makes a
similar analysis under regional treaties. The right of access to justice is
intrinsic to all human rights treaties. The citations to specific provisions
and the interpretations of these provisions by the various treaty Committees
provides guidance on the development of a formulation of this right in
Article 13 of the CRPD by the United Nations Committee on the Rights of
Persons with Disabilities (CRPD Committee), and other international
bodies. The various treaty Committees also provide guidance for States
Parties to the CRPD as they implement its provisions.
Part IV highlights specific areas of denials of access to justice for
persons with disabilities. Subpart A addresses the denials to persons with
disabilities as people who seek to learn about or seek to obtain information
about how the justice system works. Subpart B explores denials of justice
to Disabled People’s Organizations (DPOs) advocating for disability rights.
Subpart C addresses the barriers persons with disabilities face as clients
generally. Subpart D explores the exclusion of persons with disabilities
from positions as lawyers. Subpart E documents the ongoing exclusion of
persons with disabilities as jurors. Subpart F explores the barriers to access
to the courthouse. Subpart G enumerates the situations persons with
disabilities face as criminal defendants and prisoners, and Subpart H
outlines the problems confronted by those who are victims of crime.
Part V briefly outlines some common barriers to disability inclusion in
rule of law and justice reform programming. Access to justice is often
addressed in rule of law and justice reform programming conducted by
international donors and implementing partners. Regrettably, many of
these programs ignore the interests of persons with disabilities in designing
their programs, despite the mandate to do otherwise, as contained in the
CRPD and in the donors’ own guidelines.
Part VI outlines effective strategies for achieving inclusion of disabled
persons in rule of law and justice reform programming. These suggestions
are detailed in several categories: Subpart A discusses legal analysis,
research and institution reform; Subpart B emphasizes the role of training
judges, lawyers, and other justice professionals; Subpart C describes the
methods that might increase the number of judges and lawyers with
disabilities; Subpart D relates to the role of Disabled Persons and DPOs in
such efforts; Subpart E describes needed reforms in the criminal justice
system; Subpart F explores techniques for community education and
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awareness; and Subpart G outlines reforms in the essential element of
physical access to courts and judicial tribunals.
Part VII sets forth conclusions and recommendations moving forward,
with a focus on the roles of the CRPD committee, States Parties, and
disabled persons and DPOs.
II. WHAT IS ACCESS TO JUSTICE AND WHY IS IT IMPORTANT TO PERSONS
WITH DISABILITIES?
“Access to Justice” is a broad concept, encompassing peoples’
effective access to the systems, procedures, information, and locations used
in the administration of justice. People who feel wronged or mistreated in
some way usually turn to their country’s justice system for redress. In
addition, people may be called upon to participate in the justice system, for
example, as witnesses or as jurors in a trial. Persons with disabilities have
often been denied access to fair and equal treatment before courts, tribunals,
law enforcement officials, prison systems, and other bodies that make up
the justice system in their country because they have faced barriers.
Additionally, persons with disabilities have been discriminated against in
terms of attaining positions as lawyers, judges, and other officials in the
justice system. Such barriers not only limit the ability of persons with
disabilities to use the justice system, but also limit their ability to contribute
to the administration of justice to society and to the community as a whole.
Thus, Article 13 of the CRPD explicitly references the right of persons with
disabilities to access to justice.1
One expert working on women’s access to justice highlights the trend
towards thinking of access to justice as three distinct, yet interdependent
components:
[S]ubstantive justice which concerns itself with an assessment of
the rights claims that are available to those who seek a remedy;
procedural aspects which focus on the opportunities and barriers
to getting ones claim into court (or other dispute resolution
forum); and, the symbolic component of access to justice which
steps outside of doctrinal law and asks to what extent a particular
2
legal regime promotes citizens’ belonging and empowerment.
1.
Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, Annex I, art. 13,
U.N. Doc. A/RES/61/106 (Dec. 13, 2006) [hereinafter CRPD].
2.
International Development Research Centre, Background Paper on Women’s Access to
Justice in the MENA Region, 2007, available at http://www.idrc.ca/.../12151851101Women’s_
access_to_justice_in_MENA-Bahdi_ En.doc (last visited Feb. 23, 2011).
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This author also prefers a bifurcated relationship to the law, which
recognizes it both as a source of oppression and liberation. This image of
law is preferable because it reflects and presupposes a particular image of
marginalized peoples as both objects of oppression, and yet not entirely
powerless makers of their own significance. This bifurcated relationship to
the law also captures the law’s true complexity. Law can offer hope to
those who find little hope in the realm of economics, politics, or social
status.
This is the reality of the justice system for persons with disabilities as
well, since sometimes the justice system remedies inequality and
discrimination, and sometimes it is the justice system itself that perpetuates
that very inequality and discrimination. While advocating for improved
access to justice, disability rights activists must not ignore other
mechanisms for advancement such as human rights, education, media
engagement, grassroots empowerment, mobilization, budgetary analysis, 3
and advocacy. As disability rights activists work to gain access to the
justice system, these harsh realities must be kept in mind.
Nonetheless, the ability to access justice is of critical importance in the
enjoyment of all other human rights and in the fair and effective
administration of justice. For example, a person with a disability who feels
that she or he has been denied the right to work4 may wish to turn to the
justice system to seek a remedy. However, if the justice system fails to
3.
Budget analysis refers to a process by which State allocation of resources are scrutinized
and assessed, for example, to identify sufficiency of resource allocation in the attempt to secure the
rights of a particularly disadvantaged group. See Maria Socorro I. Diokno, A Rights-Based Approach to
Budget Analysis, 8 (1999), available at http://www.crin.org/docs/resources/publications/ hrbap/
RBABudgetAnalysis.pdf (last visited Feb. 22, 2011); Fundar-Centro de Análisis e Investigación,
International Human Rights Internship Program, International Budget Project, Dignity Counts: A Guide
to Using Budget Analysis to Advance Human Rights, 1 (2004), available at
http://www.law.washington.edu/wlr/notes/83washlrev449n46b.pdf (last visited Feb. 22, 2011). For the
role of budget analysis in the realm of women’s rights, see Debbie Budlender & Rhonda Sharp, How To
Do a Gender-Sensitive Budget Analysis: Contemporary Research and Practice, 5, 57 (1998), available
at http:// www.llbc.leg.bc.ca/Public/PubDocs/docs/360141/AusAIDTr.pdf (last visited Mar. 26, 2011).
Budget analysis has also been stressed in the context of State reporting obligations on the
implementation of economic, social, and cultural rights. See U.N. Econ. & Soc. Council, Limburg
Principles on the Implementation of Economic, Social and Cultural Rights, No. 79, U.N. Doc.
E/CN.4/1987/17 (Jan. 8, 1987), which states:
Quantitative information should be included in the reports of States Parties in
order to indicate the extent to which the rights are protected in fact. Statistical
information and information on budgetary allocations and expenditures should be
presented in such a way as to facilitate the assessment of the compliance with
Covenant obligations. States Parties should, where possible, adopt clearly defined
targets and indicators in implementing the Covenant.
4.
CRPD, supra note 1, art. 27.
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accommodate her or his physical, communication, or other disabilityrelated needs, and/or expressly discriminates against her or him, then
clearly denial of access to the justice system also results in denial of
protection of the right to work. Similarly, a person with a disability who
has been the victim of a crime may wish to report the crime to the police
and press charges against the offender.5 However, if she or he is denied
physical access to the police station, clear communication with the police,
or access to information that is understandable, then that person may not be
able to exercise her or his rights as a victim. These examples demonstrate
that human rights are indivisible, interdependent, and interconnected.
The enjoyment of other human rights can also positively or negatively
impact the ability of persons with disabilities to enjoy access to justice.
Accessibility6 of transportation may determine whether or not a person with
a disability is able to travel to a police station, courthouse, or other place
where justice is administered. Similarly, a person with a disability who has
had access to a quality education7 will be better able to understand and use
the justice system. However, if she or he has been denied the right to
education, then participation in the justice system may be difficult or
impossible. Additionally, if formal legal education is denied to persons
with disabilities, they will be unable to work as lawyers or serve as judges
who can integrate the views and experiences of disabled persons in the
justice system. Without the right to political participation,8 persons with
disabilities will not be able to run for office, or vote for or campaign for
candidates who support their access to the justice system.
To be fully included in society, persons with disabilities need access to
justice. As long as persons with disabilities face barriers to their
participation in the justice system, they will be unable to assume their full
responsibilities as members of society or vindicate their rights. For this
reason, it is important that barriers be removed so that persons with
disabilities can enjoy the equal opportunity to perform their duties as
parties, witnesses, jurors, lawyers, prosecutors, judges, arbitrators, and
other participants in the administration of justice. It is also important for
persons with disabilities to enjoy the myriad of civil, political, economic,
social, and cultural rights enumerated in the CRPD, as well as being treated
fairly and equitably in the administration of justice itself.
5.
Id. arts. 15–6.
6.
Id. art. 9.
7.
Id. art. 24.
8.
Id. art. 29.
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287
For example, with respect to economic, social, and cultural rights, a
significant study by the Office of the High Commissioner for Human
Rights states:
For rights to have meaning, effective remedies must be
available to redress violations. This requirement is implicit
in the Convention and consistently referred to in the context
of the other major human rights treaties. Administrative
remedies might in certain cases be adequate to vindicate
rights. In other cases, judicial protection of rights appears
indispensable in order to satisfy the requirement of the
Convention, and should extend to economic, social and
9
cultural rights, besides civil and political rights.
III. THE LEGAL FRAMEWORK
A. Under the United Nations Convention on the Rights of Persons with
Disabilities
The CRPD, the first human rights treaty of the 21st Century, became
the first international instrument by which persons with disabilities could
enforce their human rights. The CRPD also incorporated a transformative
view of disability, moving away from the “medical model” of disability
toward a “social model” of disability. Noted disability human rights
scholars, Michael Stein and Janet Lord, emphasize the fact that:
[t]he Convention categorically affirms the social model of
disability in relation to persons with disabilities by
describing it as a condition arising from “interaction with
various barriers [that] may hinder their full and effective
participation in society on an equal basis with others instead
10
of condition arising from inherent limitations.”
Access to justice is a fundamental human right and has long been a
concern to persons with disabilities. People vigorously engaged in the
negotiations of the CRPD understand this long history of denial of access to
justice, and as aptly stated by Katherine Guernsey, “Article 13 seeks to
9.
Office of the United Nations High Commissioner for Human Rights And Reports of the
Office of the High Commissioner and the Secretary-General, Thematic Study: Enhancing Awareness
and Understanding of the Convention on the Rights of Persons with Disabilities, A/HRC/10/48, 10th
Sess., Jan. 26, 2009, ¶ 57 (2009).
10. Janet E. Lord & Michael Ashley Stein, The Domestic Incorporation of Human Rights Law
and the United Nations Convention on the Rights of Persons with Disabilities, 83 WASH. L. REV. 449,
460 (2008) (quoting CRPD, supra note 1, art. 1).
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respond to the historic exclusion, in many societies, of persons with
disabilities from the justice system.”11 As the renowned scholar Anna
Lawson has noted, when these rights are denied, the result is the “civil
death” of the person affected.12 As highlighted by the UN Development
Program, access to justice has ramifications far beyond the justice system
itself.
There are strong links between establishing democratic
governance, reducing poverty, and securing access to justice.
Democratic governance is undermined where access to justice for
all citizens (irrespective of [disability,] gender, race, religion,
age, class or creed) is absent. Access to justice is also closely
linked to poverty reduction since being poor and marginalized
means being deprived of choices, opportunities, access to basic
resources and a voice in decision-making. Lack of access to
justice limits the effectiveness of poverty reduction and
democratic governance programmes by limiting participation,
13
transparency and accountability.
The CRPD enumerates many general obligations that States Parties
must adhere to. For example, States Parties have to give full effect to these
rights, they have to ensure that laws and practices do not discriminate
against persons with disabilities, and they have to make sure to change
those laws that do so discriminate against persons with disabilities.14 The
11. Katherine Guernsey, Marco Nicoli & Alberto Ninio, World Bank, Convention on the
Rights of Persons with Disabilities: Its Implementation and Relevance for the World Bank, SP
Discussion Paper No. 0712, June 2007, at 13, available at http://siteresources.worldbank.org/
SOCIALPROTECTION/Resources/SP-Discussion-papers/Disability-DP/0712.pdf (last visited Feb. 22,
2011).
12. Anna Lawson, The United Nations Convention on the Rights of Persons with Disabilities:
New Era or False Dawn?, 34 SYRACUSE J. INT’L. L. & COM. 563, 573 (2007).
13. See Access to Justice: Practice Note, United Nations Development Programme (Sept. 3,
2004), at 3, http://www.undp.org/governance/docs/Justice_PN_English.pdf (last visited Mar. 26, 2011)
[hereinafter Access to Justice].
14.
CRPD, supra note 1, art. 4. Article 4 on General Obligations provides:
States Parties undertake to ensure and promote the full realization of all
human rights and fundamental freedoms for all persons with disabilities
without discrimination of any kind on the basis of disability. To this end,
States Parties undertake: (a) To adopt all appropriate legislative,
administrative and other measures for the implementation of the rights
recognized in the present Convention; (b) To take all appropriate
measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices that constitute discrimination against
persons with disabilities . . . .
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CRPD also incorporates the dynamic, intersecting, and over-arching rights
of “equality before the law”15 such as: the importance of eliminating
stereotypes of persons with disabilities,16 accessibility,17 equal recognition
before the law” (often framed as “legal capacity”),18 and the concept of
“access to justice” for persons with disabilities.19 Additionally, the CRPD
includes the right to education,20 non-discrimination, and reasonable
accommodation in employment.21
15.
Id. art. 5. Article 5 on Equality and Non-discrimination provides:
1. States Parties recognize that all persons are equal before and under the
law and are entitled without any discrimination to the equal protection and
equal benefit of the law. 2. States Parties shall prohibit all discrimination
on the basis of disability and guarantee to persons with disabilities equal
and effective legal protection against discrimination on all grounds.
16.
Id. art. 8. Article 8 on Awareness-raising provides:
1. States Parties undertake to adopt immediate, effective and appropriate
measures: (a) To raise awareness throughout society, including at the
family level, regarding persons with disabilities, and to foster respect for
the rights and dignity of persons with disabilities; (b) To combat
stereotypes, prejudices and harmful practices relating to persons with
disabilities, including those based on sex and age, in all areas of life; (c)
To promote awareness of the capabilities and contributions of persons with
disabilities. 2. Measures to this end include: (a) Initiating and maintaining
effective public awareness campaigns designed: (i) To nurture
receptiveness to the rights of persons with disabilities; (ii) To promote
positive perceptions and greater social awareness towards persons with
disabilities; (iii) To promote recognition of the skills merits and abilities of
persons with disabilities, and of their contributions to the workplace and
the labour market; (b) Fostering at all levels of the education system,
including in all children from an early age, an attitude of respect for the
rights of persons with disabilities; (c) Encouraging all organs of the media
to portray persons with disabilities in a manner consistent with the purpose
of the present Convention; (d) Promoting awareness-training programmes
regarding persons with disabilities and the rights of persons with
disabilities.
17.
Id. art. 9.
18.
Id. art. 12.
19.
CRPD, supra note 1, art. 13.
20.
Id. art. 24. Article 24 on Education provides:
1. States Parties recognize the right of persons with disabilities to
education. With a view to realizing this right without discrimination and
on the basis of equal opportunity, States Parties shall ensure an inclusive
education system at all levels and life long learning directed to: (a) The
full development of human potential and sense of dignity and self-worth,
and the strengthening of respect for human rights, fundamental freedoms
and human diversity; (b) The development by persons with disabilities of
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their personality, talents and creativity, as well as their mental and physical
abilities, to their fullest potential; (c) Enabling persons with disabilities to
participate effectively in a free society.
2. In realizing this right, States Parties shall ensure that: (a) Persons with
disabilities are not excluded from the general education system on the
basis of disability, and that children with disabilities are not excluded from
free and compulsory primary education, or from secondary education, on
the basis of disability; (b) Persons with disabilities can access an inclusive,
quality and free primary education and secondary education on an equal
basis with others in the communities in which they live; (c) Reasonable
accommodation of the individual’s requirements is provided; (d) Persons
with disabilities receive the support required, within the general education
system, to facilitate their effective education; (e) Effective individualized
support measures are provided in environments that maximize academic
and social development, consistent with the goal of full inclusion.
3. States Parties shall enable persons with disabilities to learn life and
social development skills to facilitate their full and equal participation in
education and as members of the community. To this end, States Parties
shall take appropriate measures, including: (a) Facilitating the learning of
Braille, alternative script, augmentative and alternative modes, means and
formats of communication and orientation and mobility skills, and
facilitating peer support and mentoring; (b) Facilitating the learning of sign
language and the promotion of the linguistic identity of the deaf
community; (c) Ensuring that the education of persons, and in particular
children, who are blind, deaf or deafblind, is delivered in the most
appropriate languages and modes and means of communication for the
individual, and in environments which maximize academic and social
development.
4. In order to help ensure the realization of this right, States Parties shall
take appropriate measures to employ teachers, including teachers with
disabilities, who are qualified in sign language and/or Braille, and to train
professionals and staff who work at all levels of education. Such training
shall incorporate disability awareness and the use of appropriate
augmentative and alternative modes, means and formats of
communication, educational techniques and materials to support persons
with disabilities.
5. States Parties shall ensure that persons with disabilities are able to
access general tertiary education, vocational training, adult education and
lifelong learning without discrimination and on an equal basis with others.
To this end, States Parties shall ensure that reasonable accommodation is
provided to persons with disabilities.
21.
Id. art. 27. Article 27 on Work and Employment provides:
1. States Parties recognize the right of persons with disabilities to work,
on an equal basis with others; this includes the right to the opportunity to
gain a living by work freely chosen or accepted in a labour market and
work environment that is open, inclusive and accessible to persons with
disabilities. States Parties shall safeguard and promote the realization of
the right to work, including for those who acquire a disability during the
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Article 12 of the CRPD states: “1. States Parties reaffirm that persons
with disabilities have the right to recognition everywhere as persons before
the law. 2. States Parties shall recognize that persons with disabilities enjoy
legal capacity on an equal basis with others in all aspects of life.”22
Article 13, Access to Justice states:
1. States Parties shall ensure effective access to justice for
persons with disabilities on an equal basis with others,
including through the provision of procedural and ageappropriate accommodations, in order to facilitate their
effective role as direct and indirect participants, including
as witnesses, in all legal proceedings, including at
investigative and other preliminary stages.
2. In order to help to ensure effective access to justice for
persons with disabilities, States Parties shall promote
course of employment, by taking appropriate steps, including through
legislation, to, inter alia: (a) Prohibit discrimination on the basis of
disability with regard to all matters concerning all forms of employment,
including conditions of recruitment, hiring and employment, continuance
of employment, career advancement and safe and healthy working
conditions; (b) Protect the rights of persons with disabilities, on an equal
basis with others, to just and favourable conditions of work, including
equal opportunities and equal remuneration for work of equal value, safe
and healthy working conditions, including protection from harassment, and
the redress of grievances; (c) Ensure that persons with disabilities are able
to exercise their labour and trade union rights on an equal basis with
others; (d) Enable persons with disabilities to have effective access to
general technical and vocational guidance programmes, placement services
and vocational and continuing training; (e) Promote employment
opportunities and career advancement for persons with disabilities in the
labour market, as well as assistance in finding, obtaining, maintaining and
returning to employment; (f) Promote opportunities for self-employment,
entrepreneurship, the development of cooperatives and starting one’s own
business; (g) Employ persons with disabilities in the public sector; (h)
Promote the employment of persons with disabilities in the private sector
through appropriate policies and measures, which may include affirmative
action programmes, incentives and other measures; (i) Ensure that
reasonable accommodation is provided to persons with disabilities in the
workplace; (j) Promote the acquisition by persons with disabilities of work
experience in the open labour market; (k) Promote vocational and
professional rehabilitation, job retention and return-to-work programmes
for persons with disabilities. 2. States Parties shall ensure that persons
with disabilities are not held in slavery or in servitude, and are protected,
on an equal basis with others, from forced or compulsory labour.
22.
Id. art. 12.
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appropriate training for those working in the field of
23
administration of justice, including police and prison staff.
Persons with disabilities also have the right to employment with
reasonable accommodation in the justice sector as lawyers, judges, law
enforcement officials, and other justice sector employment on an equal
basis with others.24 Often, a pre-requisite to the ability to exercise the right
to equal employment opportunity, is the right to education,25 since
appropriate professional education is necessary to assume positions in the
justice system.
B. Under Other International Conventions
The right of access to justice is intrinsic to all human rights treaties.
The citations to specific provisions and the interpretations of these
provisions, by the various treaty committees, provide guidance on the
development of a formulation of this right in Article 13 of the CRPD.
Article 13 also provides guidance for States Parties to use the CRPD and
how to implement its provisions.
Access to justice was first formally referenced in the formative human
rights document, the Universal Declaration of Human Rights (UDHR);
although the term “access to justice” was not specifically used to label this
right therein. Several articles of the UDHR enumerate these rights: Article
7 concerning equality before the law and equal protection of the law,26
Article 8 stating that all have the right to an effective remedy,27 and Article
23.
Id. art. 13.
24.
CRPD, supra note 1, art. 27. Article 27 provides:
States Parties recognize the right of persons with disabilities to work, on an
equal basis with others; this includes the right to the opportunity to gain a
living by work freely chosen or accepted in a labour market and work
environment that is open, inclusive and accessible to persons with
disabilities.
25.
Id.
26. Universal Declaration of Human Rights, G.A. Res. 217 (III), U.N. Doc. A/RES/217(III),
art. 7 (Dec. 10, 1948). Article 7 provides that “[a]ll are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such discrimination.”
27. Id. art. 8. Article 8 provides: “Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights granted him by the constitution or
by law.”
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1028 expressing the basic right of the individual to a fair trial in both civil
and criminal proceedings.29
The International Covenant on Civil and Political Rights (ICCPR) sets
forth this right in Article 14, which states in pertinent part: “all persons
shall be equal before the courts and tribunals.”30 ICCPR Article 14(2)(f),
states with respect to criminal proceedings: “to have the free assistance of
an interpreter if he cannot understand or speak the language used in
court.”31 ICCPR Article 16 states: “everyone shall have the right to
recognition everywhere as a person before the law.”32
The Human Rights Committee, the committee that monitors
compliance with the ICCPR, in its General Comment No. 13 recognizes the
importance of communication in judicial processes in a language a person
can understand:
Subparagraph 3 (f) provides that if the accused cannot
understand or speak the language used in court he is entitled
to the assistance of an interpreter free of any charge. This
right is independent of the outcome of the proceedings and
applies to aliens as well as to nationals. It is of basic
importance in cases in which ignorance of the language
used by a court or difficulty in understanding may
33
constitute a major obstacle to the right of defense.
Clearly, this concept provides the requisite reasonable accommodation
that allows a defense to persons who are deaf and use sign language to
communicate with others, and to persons who are blind and cannot read
standard print. The Human Rights Committee in its General Comment 13
further defines what fulfillment of the Article 14 equality before a tribunal
under the ICCPR.
Paragraph 3 states in pertinent part:
28.
Id. art. 10.
29. Id. Article 10 provides: “Everyone is entitled in full equality to a fair and public hearing
by an independent and impartial tribunal, in the determination of his rights and obligations and any
criminal charge against him.”
30. International Covenant on Civil and Political Rights, art. 14, Dec. 16, 1966, 999 U.N.T.S.
171, 6 I.L.M. 368 (1967).
31.
Id. art. 14(2)(f).
32.
Id. art. 16.
33. United Nations, Office of the High Commissioner for Human Rights, CPR General
Comment No. 13: Article 14 (Administration of Justice) Equality Before the Courts and the Right to a
Fair and Public Hearing by an Independent Court Established by Law, ¶ 13 (Apr. 13, 1984), available at
http://www.unhchr.ch/tbs/doc.nsf/0/bb722416a295f264c12563ed0049dfbd?Opendocument (last visited
Mar. 26, 2011).
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The Committee would find it useful if, in their future reports,
States Parties could provide more detailed information on the
steps taken to ensure that equality before the courts, including
equal access to courts, fair and public hearings and competence,
impartiality and independence of the judiciary are established by
law and guaranteed in practice. In particular, States Parties
should specify the relevant constitutional and legislative texts
which provide for the establishment of the courts and ensure that
they are independent, impartial and competent, in particular with
regard to the manner in which judges are appointed, the
qualifications for appointment, and the duration of their terms of
office; the condition governing promotion, transfer and cessation
of their functions and the actual independence of the judiciary
34
from the executive branch and the legislative.
Although the International Covenant on Economic, Social and Cultural
Rights (ICESCR) does not contain a specific access to justice provision, a
general comment of the Committee on Economic, Social and Cultural
Rights recognizes that an effective judicial or administrative remedy is
“indispensable.”35 Paragraph 9 of General Comment 9 under the ICESCR
states:
The right to an effective remedy need not be interpreted as
always requiring a judicial remedy.
Administrative
remedies will, in many cases, be adequate and those living
within the jurisdiction of a State party have a legitimate
expectation, based on the principle of good faith, that all
administrative authorities will take account of the
requirements of the Covenant in their decision-making.
Any such administrative remedies should be accessible,
affordable, timely and effective. An ultimate right of
judicial appeal from administrative procedures of this type
would also often be appropriate. By the same token, there
are some obligations, such as (but by no means limited to)
those concerning non-discrimination, in relation to which
the provision of some form of judicial remedy would seem
indispensable in order to satisfy the requirements of the
Covenant. In other words, whenever a Covenant right
34.
Id. ¶ 3.
35. U.N. Econ. & Soc. Council, General Comment 9: The Domestic Application of the
Covenant, ¶¶ 9–10, U.N. Doc. E/C/1998/24 (Dec. 3, 1998).
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cannot be made fully effective without some role for the
36
judiciary, judicial remedies are necessary.
Paragraph 10 states:
In relation to civil and political rights, it is generally taken
for granted that judicial remedies for violations are
essential. Regrettably, the contrary assumption is too often
made in relation to economic, social and cultural rights.
This discrepancy is not warranted either by the nature of the
37
rights or by the relevant Covenant provisions.
The Committee has already made it clear that it considers many of the
provisions in the Covenant to be capable of immediate implementation. It
is important in this regard to distinguish between justiciability (which refers
to those matters which are appropriately resolved by the courts) and norms
which are self-executing (capable of being applied by courts without further
elaboration). While the general approach of each legal system needs to be
taken into account, there is no covenant right which could not, in the great
majority of systems, be considered to possess at least some significant
justiciable dimensions. It is sometimes suggested that matters involving the
allocation of resources should be left to the political authorities rather than
the courts. While the respective competences of the various branches of
government must be respected, it is appropriate to acknowledge that courts
are generally involved in a considerable range of matters which have
important resource implications. The adoption of a rigid classification of
economic, social and cultural rights, which puts them beyond the reach of
the courts, would be arbitrary and incompatible with the principle that the
two sets of human rights are indivisible and interdependent. It would also
drastically curtail the capacity of the courts to protect the rights of the most
vulnerable and disadvantaged groups in society.38
The United Nations Convention for the Elimination of All Forms of
Discrimination Against Women (CEDAW) also recognizes a right to
equality before the law. Article 15 requires equality between men and
women before the law and the courts.39
36.
Id. ¶ 9.
37.
Id. ¶ 10.
38.
Id. ¶ 9.
39. Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res.
34/180, U.N. Doc. A/RES/34/180, art. 15 (Dec. 18, 1979). Article 15 provides:
1. States Parties shall accord to women equality with men before the law.
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The Committee for the Convention on Discrimination
Against Women (CEDAW Committee), in its General Comment 21,
explained the paramount importance of the rights of women in the justice
system:
A woman’s right to bring litigation is limited in some
countries by law or by her access to legal advice and her
ability to seek redress from the courts. In others, her status
as a witness or her evidence is accorded less respect or
weight than that of a man. Such laws or customs limit the
woman’s right effectively to pursue or retain her equal
share of property and diminish her standing as an
independent, responsible and valued member of her
community. When countries limit a woman’s legal capacity
by their laws, or permit individuals or institutions to do the
same, they are denying women their rights to be equal with
men and restricting women’s ability to provide for
40
themselves and their dependents.
For example, the CEDAW recognizes that without access to justice
there is no remedy for women to address gender-based violence.41 The
Convention for the Elimination of Racial Discrimination (CERD), in
Article 5, also recognizes the right to equality before the law, the right to
equal treatment before tribunals, and all other elements of the justice
system.42
2. States Parties shall accord to women, in civil matters, a legal capacity
identical to that of men and the same opportunities to exercise that
capacity. In particular, they shall give women equal rights to conclude
contracts and to administer property and shall treat them equally in all
stages of procedure in courts and tribunals.
3. States Parties agree that all contracts and all other private instruments of
any kind with a legal effect which is directed at restricting the legal
capacity of women shall be deemed null and void.
4. States Parties shall accord to men and women the same rights with
regard to the law relating to the movement of persons and the freedom to
choose their residence and domicile.
40. OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS: EQUALITY IN
MARRIAGE AND FAMILY RELATIONS, CEDAW General Recommedation No. 21, 13th Session, cmt. 7,
(Apr. 2, 1994).
41.
Id.
42. International Convention on the Elimination of All Forms of Racial Discrimination, G.A.
Res. 2106 (XX), U.N. Doc. A/RES/ 2106(XX), art. 5(a) (Dec. 21, 1965). Article 5 provides:
In compliance with the fundamental obligations laid down in article 2 of
this Convention, States Parties undertake to prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of everyone,
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The Committee for the Elimination of Racial Discrimination (CERD
Committee) General Comment No. 20 to Article 5 of the CERD states:
“Many of the rights and freedoms mentioned in article 5, such as the right
to equal treatment before tribunals, are to be enjoyed by all persons living
in a given State . . . .”43
Additionally, the wording of the CERD Committee’s General
Recommendation No. 25 usefully illustrates the notion of multiple
discrimination based on race and other grounds.44 The CERD Committee
notes, for example, “racial discrimination does not always affect women
and men equally or in the same way. There are circumstances in which
racial discrimination only or primarily affects women, or affects women in
a different way, or to a different degree than men”45 and “certain forms of
racial discrimination may be directed towards women specifically because
of their gender . . . .”46
It certainly would be useful for the CRPD Committee to examine the
multi-dimensional aspects of access to justice, as it affects women with
disabilities and persons with disabilities from other marginalized groups.
International environmental law also incorporates concepts of access to
justice. For example, the Convention on Access to Information, Public
Decision-making and Access to Justice in Environmental Matters (Aarhus
Convention), in addition to addressing environmental matters, also
addresses government accountability, transparency, and responsiveness
through provisions on information, public participation, and access to
justice.47 With respect to access of information provisions, for example,
the Aarhus Convention ensures that individuals have access to review
procedures before a court of law or another independent and impartial body,
which may be free of charge or inexpensive.48 Additionally, the
Convention on Access to Information provides access to administrative or
judicial procedures that allows individuals to challenge acts and omissions
without distinction as to race, colour, or national or ethnic origin, to
equality before the law, notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs
administering justice.
43. U.N. Rep. of the Comm. on the Elimination of Racial Discrimination, G.A. 51st Sess., at
124, U.N. Doc. A/51/18 (Sept. 30, 1996).
44. U.N. Rep. of the Comm. on the Elimination of Racial Discrimination, G.A. 55th Sess., at
152, U.N. Doc. A/55/18 (Oct. 17, 2000).
45.
Id.
46.
Id.
47. Convention on Access to Information, Public Decision-making and Access to Justice in
Environmental Matters, art. 9, June 25, 1998, 2161 U.N.T.S. 447, 38 I.L.M. 517 (1999).
48.
Id. art. 9(2).
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made by private persons and public authorities that contravene
environmental laws.49
C. Regional Treaties
In addition to the various international human rights and other treaties
outlined above, comparable access to justice provisions are contained in the
regional human rights treaties. The 1948 American Declaration of the
Rights and Duties of Man (American Declaration) provides that every
individual in the member states of the Organization of American States
(OAS) is entitled to enjoy basic civil rights, including the right to resort to
the courts to ensure respect for her or his legal rights.50 Article 8(1) of the
1978 American Convention on Human Rights (American Convention)
entitles every individual in the ratifying Latin American states to a
“hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established by
law, in the substantiation of any accusation of a criminal nature, and the
determination of her or his rights and obligations of a civil, labour, fiscal, or
any other nature.”51
The due process rights in the European Convention for the Protection
of Human Rights and Fundamental Freedoms (European Convention)
resembles the ICCPR.52 These conventions entitle everyone in the ratifying
and acceding states to: a fair and public hearing by law in determining civil
rights and obligations, and any criminal charges within a reasonable time,
and to an independent, impartial, and lawfully established tribunal.53
The American Convention on the Elimination of All Forms of
Discrimination Against Persons with Disabilities ensures for all persons
with disabilities in ratifying states, that governments will take measures to
49. Id. art. 9. Article 9 of the Convention on Access to Information, Public Decision-making
and Access to Justice in Environmental Matters provides great detail on the processes described in part
below:
1. Each Party shall, within the framework of its national legislation, ensure
that [aggrieved persons have] access to a review procedure before a court
of law or another independent and impartial body established by law.
50. American Declaration of the Rights and Duties of Man, O.A.S. Official Rec., OEA/Ser.
L./V./II.23, doc 21 rev. 6 (1948), reprinted in Basic Documents Pertaining to Human Rights in the InterAmerican System, OEA/Ser. L. V/II.82, doc. 6 rev. 1, art. XVII (1992).
51. American Convention on Human Rights, Pact of San Jose, Costa Rica, art. 8(1), Nov. 22,
1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123, OAS/Ser. L/V/I.4 rev. 7 (entered into force July 18,
1978).
52. Council of Europe, Convention for the Protection of Human Rights and Fundamental
Freedoms, art. 2, Nov. 4, 1950, 213 U.N.T.S. 222, E.T.S. No. 5 (entered into force Sept. 3, 1953).
53.
Id.
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eliminate discrimination in the law enforcement and administration of
justice.54
The African (Banjul) Charter on Human and Peoples Rights (African
Charter) entitles every individual in a ratifying state to have her or his cause
heard, and to be tried within a reasonable time by an impartial court or
tribunal.55 The 2004 Revised Arab Charter on Human Rights (revised Arab
Charter) proclaims that everyone is entitled to a fair trial that affords
adequate guarantees before a competent, independent court.56
IV. HIGHLIGHTS OF SPECIFIC AREAS OF DENIALS OF ACCESS TO JUSTICE
FOR PERSONS WITH DISABILITY
There are numerous ways in which persons with disabilities are denied
access to justice. These numerous denials are demonstrated when obtaining
information on the justice system and advocating for reforms through the
DPOs. In addition, individuals are affected in the way they are treated as
clients by lawyers and by the justice system. These denials also prevent
them the opportunity to be employed as lawyers or to serve as prosecutors
and judges. It further prevents them from assuming the societal
responsibility to serve as jurors, due to physical inaccessibility and
attitudinal barriers in the courthouse, as well as other elements of the justice
system. Lastly, they are denied participation in the justice system as
defendants and prisoners, and equal treatment by the justice system as
victims of crimes.
A. As People Seeking to Learn About or to Obtain Information on How the
Justice System Works
As poignantly stated by the United Nations Development Program:
Legal awareness is the foundation for fighting injustice.
The poor and other disadvantaged people cannot seek
remedies for injustice when they do not know what their
rights and entitlements are under the law. Information on
remedies for injustice must be intelligible to the public and
54. Inter-American Convention on the Elimination of All Forms of Discrimination Against
Persons with Disabilities, AG/RES. 1608 (XXIX-O/99), art. III(1)(a) (June 7, 1999).
55. African (Banjul) Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev.
5, 21 I.L.M. 58 (1982), art. 7(1) (June 27, 1981) (entered into force Oct. 21, 1986).
56. League of Arab States, Arab Charter on Human Rights, May 22, 2004, reprinted in 12
INT’L HUM. RTS. REP. 893 (2005) (entered into force Mar. 15, 2008); see also Don Fleming, Legal Aid
and Human Rights, INT’L LEGAL AID GROUP CONF., June 6–8, 2007, available at
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Antwerpen_2007/Conference_Papers
/Legal_Aid_and_Human_Rights.pdf (last visited Feb. 22, 2011).
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knowledge provided to them must serve their practical
57
purposes.
Information on human rights, the legal system, and how to vindicate
those rights are rarely available to persons with disabilities in accessible
formats. Such information is also neither produced in user-friendly formats
nor in plain language.
B. As a Member of a Disabled Persons Organization Advocating for
Disability Rights
The “nothing about us without us” philosophy intrinsic in the CRPD is
reflected in the DPOs involvement in the development of laws, policies,
and procedures that gives access to justice for persons with disabilities.58
C. As Clients Generally
Remedies for violations of human rights often require the intervention
of lawyers. The expense of obtaining the services of legal counsel and legal
processes often discourages those who cannot afford them from seeking just
remedies. Availability, affordability, and adequacy are the three major
challenges to obtaining legal assistance faced by marginalized groups. A
fourth barrier for persons with disabilities is the lack of knowledge by legal
professionals of how to work with clients with disabilities, and a lack of
knowledge of the legal concerns faced by persons with disabilities.
In addition to the general access to justice issues confronting persons
with disabilities, often poverty prevents persons with disabilities from
utilizing the civil justice system because they simply cannot afford the
57.
Access to Justice, supra note 13, at 10.
58.
CRPD, supra note 1, pmbl., §§ (m), (o), art. 4(3). Section (m) states:
Recognizing the valued existing and potential contributions made by
persons with disabilities to the overall well-being and diversity of their
communities, and that the promotion of the full enjoyment by persons with
disabilities of their human rights and fundamental freedoms and of full
participation by persons with disabilities will result in their enhanced sense
of belonging and in significant advances in the human, social and
economic development of society and the eradication of poverty.
Section (o) states: “Considering that persons with disabilities should have the
opportunity to be actively involved in decision-making processes about policies
and programmes, including those directly concerning them.” Article 4(3) states:
“In the development and implementation of legislation and policies to implement
the present Convention, and in other decision-making processes concerning issues
relating to persons with disabilities, States Parties shall closely consult with and
actively involve persons with disabilities, including children with disabilities,
through their representative organizations.”
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services of a lawyer. Frances Gibson in her paper on the CRPD Article 13
argues that access to justice would be meaningless without the right to free
legal aid, and that this is even more important for persons with disabilities
because of their lack of knowledge of the legal system and their extreme
poverty.59 She references the 1975 Declaration on the Rights of Disabled
Persons, which recognizes that a right to legal aid is indispensable:60
“Disabled persons shall be able to avail themselves of qualified legal aid
when such aid proves indispensable for the protection of their persons and
property. If judicial proceedings are instituted against them, the legal
procedure applied shall take their physical and mental condition fully into
account.”61
Although Ms. Gibson concludes that persons with disabilities are
clearly entitled to free legal representation in criminal matters, she
expresses concern that this right must also apply in civil matters.62 She
notes that:
If Article 13 of the CRPD is to have any meaning, then it
follows that—in the absence of forums which are simple
enough in both procedure and substantive law to allow
disabled citizens to have a fair hearing without the
assistance of a lawyer—the convention requires states to
provide legal aid to people with disabilities who cannot
access private legal assistance and that, at a minimum, legal
aid should be available for cases involving breaches of the
63
human rights referred to in the treaty.
Generally, in law schools, lawyers are not trained on disability law or
on how to work with clients with disabilities.64 Most lawyers do not
employ sign language interpreters to aid with deaf clients and they do not
have materials for persons who are blind. They also have little experience
59. Frances Gibson, Article 13 of the Convention on the Rights of Persons with Disabilities—
A Right to Legal Aid?, 15 AUSTL. J. OF HUM. RTS. 123, 131 (2010).
60.
Id. at 128.
61. Declaration on the Rights of Disabled Persons, G.A. Res. 3447 (XXX), U.N. GAOR.,
U.N. Doc A/RES/3447(XXX), art. 11 (Dec. 9, 1975).
62.
Gibson, supra note 59, at 129.
63. Id. at 131 (citing Kyiv Declaration on Legal Aid, Conference on the Protection and
Promotion of Human Rights through Provision of Legal Services, art 6, available at
http://www.ahrcentre.org/documents/Publications/15_ajhr_2.pdf#page=133 (last visited Mar. 26,
2011)). “Recognising the right to redress for violations of human rights—Legal aid should be available
to all people without discrimination who seek legal redress for violation of their human rights, including
for violations by any organ of state.” Id.
64.
Gibson, supra note 59, at 128.
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working with disabled persons and minimal understanding of the so-called
“disability etiquette,” which helps in addressing and interacting with
persons with disabilities.
For example, Michael Schwartz, a well-respected deaf lawyer,
provides detailed guidance to attorneys who are working with clients with
hearing disabilities, including the types of communications devices to use,
methods of communication, styles of speaking, etc.65 He also highlights the
fact that sign language interpreters are bound to keep all communications
confidential, but some have concerns about the use of interpreters with
respect to the confidentiality of the lawyer-client relationship.66 Mr.
Schwartz also points out that when the court appoints an attorney to a deaf
client, it must also appoint an interpreter.67 Family members and close
friends should not serve this purpose because it would deprive them of their
attorney-client privilege to confidential communications. Also, interpreters
who know the client may use their own knowledge or opinion to influence
communications.68
The International Criminal Court69 requires taking into account the
needs of all victims, including persons with disabilities.70 Under Rule 102,
on communications other than in writing, “[w]here a person is unable, due
to a disability or illiteracy, to make a written request, application,
observation or other communication to the Court, the person may make
such request, application, observation or communication in audio, video or
other electronic form.”71
Furthermore, in detailed guidance to counsel appearing before the
International Criminal Court, one provision states:
When a Client’s ability to make reasonably considered
decisions in connection with his or her representation is
impaired because of minority, mental disability or any other
reason, Counsel must:
65.
See MICHAEL SCHWARTZ, SERVING HEARING-IMPAIRED CLIENTS, BARRISTER (1991).
66.
Id.
67.
Id.
68.
Id.
69. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court, Rome, Italy, June 15–July 17, 1998, Rome Statute of the International
Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998).
70. INT’L CRIM. CT., RULE OF PROC. AND EVID. 102, Official Records ICC-ASP/1/3 (2002),
available at http://www.icc-cpi.int/NR/rdonlyres/F1E0AC1C-A3F3-4A3C-B9A7-B3E8B115E886/
140164/Rules_of_procedure_and_Evidence_English.pdf (last visited Feb. 23, 2011).
71.
Id.
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(a) Inform the Presiding Judge or Chamber of the Court
hearing the matter, if any, of the disability;
(b) Take such steps as are necessary to ensure the adequate
legal representation of such Client; and
(c) As far as reasonably possible maintain a normal
72
Counsel-Client relationship with the Client.
These provisions are preliminary steps in addressing how persons with
disabilities should be treated in the context of the International Criminal
Court. It is rather disheartening that this tribunal has not adopted more
appropriate and disability-sensitive approaches in light of the fact that war
and conflict result in an increase in the population of persons with
disabilities, since the International Criminal Court might well be a tribunal
before which such persons will need to appear.
D. As Lawyers
Persons with disabilities rarely work as lawyers, even in developed
countries. Indeed, historically, persons with disabilities were barred from
the occupation. Law schools tended not to admit applicants with
disabilities and even to this day, law school entrance exams are not
accessible to those applicants. Employment is limited by many factors,
including that bar exams present challenges to many because of
inaccessibility of the exam, attitudinal barriers posed by employers,
unavailability of reasonable accommodations, and other factors. Data on
the numbers of law students and lawyers with disabilities in the United
States demonstrates the need for change. According to the National
Association for Law Placement (NALP), “for the class of 2007, 494 law
students of a total of 37,000 graduates reported that they were disabled,
which is about 1.5 percent reporting a disability.”73 “For 2008–2009, the
ABA Office of Legal Education and Admissions to the Bar indicated that,
of 152,005 law students in ABA accredited law schools, 4,111 (2.7 percent)
were provided accommodations.”74
72. INTERNATIONAL BAR ASSOCIATION, THE CODE OF PROFESSIONAL CONDUCT FOR
COUNSEL APPEARING BEFORE THE INT’L CRIM. CT., available at http://www.envoyco.com/clients/
iba/english.pdf (last visited Feb. 23, 2011). This guidance is somewhat patronizing, but at least raises
the fact that witnesses and clients in matters before the International Criminal Court often are persons
with disabilities requiring accommodations in the proceedings.
73. ABA Report on the Second Nat’l Conf. on the Emp. of Lawyers with Disabilities, June
16–25, 2009, at 22, available at http://new.abanet.org/disability/PublicDocuments/09report.pdf (last
visited Feb. 23, 2011).
74. Id.; see also Barry E. Katz, Disabled, Not Disqualified—With Proper Accommodations,
Law Students with Disabilities Can Succeed in Law School and Their Careers, STUDENT LAWYER
MAG., Sept. 2001, at 22 and Jennifer Jolly-Ryan, Disabilities to Exceptional Abilities: Law Students
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A careful review of these statistics on law students with disabilities
reveals the poor data collection. With respect to employment, only 0.25
percent of partners, 0.17 percent of associates, and 0.23 percent of all
lawyers at NALP firms reportedly have disabilities.75 Of more than 9,000
summer associates in 2009 at NALP firms, only 9 reported having
disabilities.76
The ABA Commission on Mental and Physical Disabilities reports that
Dr. Douglas Kruse of Rutgers University and the National Bureau of
Economic Research notes that out of the 1.08 million Americans who are
lawyers or judges, magistrates, and other judicial workers, only 3.8 percent
have a reported disability.77 The Bureau of Labor Statistics has different
statistics, reporting that for the third quarter of 2009 (July, August, and
September), 2.6 percent of those employed in the legal occupation (e.g.,
lawyers, judges, magistrates, law clerks, court reporters, paralegals) had a
disability.78 Yet persons with disabilities represent an estimated ten percent
of the population. These figures point to a profound underrepresentation of
lawyers and law students with disabilities in the United States in the
profession, as well as issues with disclosure of disability, professional
choice, and concerns about hiring, retention, and promotion. The problem
is multifaceted—the pipeline from college to law school and career, and
attitudinal barriers within the profession itself.
E. As Jurors
The responsibility to serve on juries is a fundamental right in most
countries. When persons with disabilities are denied this right they are
denied the opportunity to serve their communities. Although some of the
legal barriers to jury service have been removed in some countries, other
barriers still exist. In a recent article, Ms. Natasha Azava asserted: “People
with disabilities have long been denied the right to be on a jury.”79 Until
with Disabilities, Non-Traditional Learners, and the Law Teacher as a Learner, 6 NEV. L.J. 116, 122
(2005).
75. National Association for Legal Career Professionals, Diversity Demographics, Reported
Number of Lawyers with Disabilities Remains Small, NALP BULL., Dec. 2009, available at
http://www.nalp.org/dec09disabled (last visited Feb. 23, 2011).
76.
Id.
77. ABA Comm. on Mental and Physical Disability, ABA Disability Statistics—2010, at 4,
available at http://new.abanet.org/disability/PublicDocuments/ABADisabilityStatisticsReport.pdf (last
78.
79.
Id.
Natasha Azava, Disability-Based Peremptory Challenge: Need for Elimination, 4
CARDOZO PUB. L. POL’Y & ETHICS J. 121, 121 (2006) (citing Mary A. Lynch, The Application of Equal
2011]
Ortoleva
305
recently, in the United States, state laws describing jury qualifications
“entirely excluded people with any disabilities.”80 Moreover, practical
barriers such as:
“inaccessible courtrooms, difficulty in obtaining
transportation to court, and a lack of reasonable accommodations such as
sign interpreters or assistive communication devices,” made their
participation in jury service impractical.81
Although outright prohibitions are now illegal in the United States,
often a peremptory challenge is utilized and the author notes that a
peremptory challenge “is one exercised without a reason stated, without
inquiry and without being subject to the court’s control.”82 “In effect,
parties can remove a potential juror even though she or he qualifies to serve
under the statute.”83 She further notes that peremptory challenges based on
disability are still constitutional in the United States, and that the use of
such challenges is based on ignorance and an unwillingness to evaluate the
individual situation.84
F. As Persons Seeking Access to the Courthouse
One of the most obvious barriers to access to justice for persons with
disabilities is the physical barriers to the courts and other institutions of the
justice system. This remains one of the most egregious problems.
Courthouses, the symbols of the justice system, are often inaccessible in
many ways. For example, inaccessibility includes: steps to and inside the
courthouse, inaccessible witness chairs and jury boxes, lack of technology
to enable persons with disabilities to understand the proceedings,
prohibitions on animals in the courthouse despite the fact that they are
service animals, and other elements of courthouse design. Increasingly
world-wide persons with disabilities and DPOs are fighting to remove these
barriers.
Esthe Muller, a South African lawyer and also a wheelchair user, filed
suit under the Promotion of Equality and Prevention of Unfair
Discrimination Act of 2000 against the Justice Department and the
Department of Public Works because of the inaccessibility of the
Protection to Prospective Jurors with Disabilities: Will Batson Cover Disability-Based Strikes?, 57
ALB. L. REV. 289, 298 (1993)).
80.
Azaya, supra note 79 (citing Lynch, supra note 79, at 298).
81.
Id. (citing Lynch, supra note 79, at 299).
82.
Id. at 123–24 (citing Swain v. Alabama, 380 U.S. 202, 220–22 (1965)).
83.
Id. at 124.
84.
Id. at 124–25 (citing Lynch, supra note 79, at 303).
306
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courthouses.85 Ms. Muller had to be carried down a flight of stairs to enter
the courthouse and on another occasion the court had to postpone her cases
because she could not get into the room.86 In September 2004, the South
African Equality Court reached a final settlement in which the two
government departments admitted that they had failed to provide proper
wheelchair access and that this was a form of unfair discrimination against
Ms. Muller and other people with similar accessibility needs.87 The
departments committed to a plan to ensure that all court buildings
throughout the country would be made accessible within three years.88
Several individuals with disabilities who were paraplegic and who
used wheelchairs filed action for damages and equitable relief, alleging
violations of the Americans with Disabilities Act in terms of physical
access to the courts.89 The United States Supreme Court found that when
enacting this law, the U.S. Congress based it on extensive evidence of the
“unequal treatment of disabled persons in the administration of judicial
services and that this has persisted despite several state and federal
legislative efforts to remedy the problem . . . .”90 The Court also
“[recognized] that failure to accommodate persons with disabilities will
often have the same practical effect as outright exclusion.”91
The U.S. Access Board and the Canadian agency working on
communication for persons with hearing disabilities have developed
outstanding guides on how to make courthouses and their facilities and
programs accessible to persons with disabilities.92 Professor Peter Blanck,
85. South African Government Information, Equality Court Victory for People with
Disabilities, http://www.info.gov.za/speeches/2004/04022415461001.htm (last visited Feb. 23, 2011)
[hereinafter South African Government Information]; see also Dave Reynolds, Government Sets Date
for All Courts to be Accessible, INCLUSION DAILY EXPRESS, Sept. 15, 2004, http://www.inclusiondaily.
com/archives/04/09/15/091504sacourtaccess.htm (last visited Feb. 27, 2011) [hereinafter Reynolds].
86.
South African Government Information, supra note 85.
87.
Id.
88.
Reynolds, supra note 85.
89.
Tennessee v. Lane, 541 U.S. 509, 512–14 (2004).
90.
Id. at 530–32.
91.
Id. at 510–12.
92. See U.S. Access Board, Courthouse Access Advisory Committee Courtroom, Mock-Up,
http://www.access-board.gov/caac/mock-up.htm (last visited Feb. 27, 2011) (illustrating a model
accessible courtroom); see also U.S. Access Board, Courthouse Access Advisory Committee, Justice for
All: Designing Accessible Courthouses, Recommendations from the Courthouse Access Advisory
Committee (Nov. 15, 2006), http://www.access-board.gov/caac/report.pdf (last visited Feb. 27, 2011).
See generally Communication Access to Justice Services, Building Capacity Within the Justice Sector to
Provide Services to People Who Have Communication Disabilities, Outlining Strategies to Make Courts
2011]
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307
in a recent article, highlights the vast array of technological solutions
available for the courtroom.93 He highlights the fact that assistive
technology can, in addition to providing access to individuals with
disabilities, enhance the experience and accuracy of proceedings to nondisabled individuals, such as: jurors, judges, and attorneys.94 “This is
particularly true when courtroom technology embodies concepts of
‘universal design,’ which enables all participants to engage meaningfully in
the proceedings.”95
G. As Criminal Defendants and As Prisoners
Like all members of the community, persons with disabilities
encounter the criminal justice system as defendants. Some studies indicate
that there is a significant percentage of the population of individuals with
disabilities incarcerated which are incarcerated in greater percentages than
in the general population.96 Individuals who are accused and/or convicted
of a crime also must be afforded accessible programs and facilities that
meet their needs. Some of these approaches are obvious. For example, in
prisons, where inmate telephone calls are time-limited, the prison may be
required to permit inmates who use TTY phones a longer period of time to
make those calls, due to the slower nature of TTY communication. In
addition, prisons must have accessible holding cells, including beds,
benches, toilets, and bathing facilities. Indeed, the goal of rehabilitation
and re-integration into the community after the sentence has been
completed, demands that such programs and facilities are responsive to
these concerns.
A significant study and guidance document by the United Nations
Office of Drugs and Crime highlights the main needs and possible
responses in line with international standards for persons with disabilities in
prisons, along with other so-called “vulnerable groups.”97 Rather than
offering detailed guidance for use in a myriad of different economic and
social contexts, the document aims to generate a deeper understanding of
Accessible to People Using Alternative Communications (AAC), http://www.accpc.ca/ej-calc-01.htm
(last visited Feb. 27, 2011).
93. Peter Blanck, Ann Wilichowski & James Schmeling, Disability Civil Rights Law and
Policy: Accessible Courtroom Technology, 12 WM. & MARY BILL OF RTS. J. 825, 836 (2004).
94.
Id.
95.
Id.
96. See generally United Nations Office of Drugs and Crime, Handbook on Prisoners with
Special Needs, at 80–81 (Criminal Justice Handbook Series 2009), available at http://www.unodc.org/
documents/justice-and-prison-reform/Prisoners-with-special-needs.pdf (last visited Feb. 27, 2011)
[hereinafter U.N. Handbook on Prisoners with Special Needs].
97.
Id.
308
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the situation of vulnerable prisoners, to encourage new thinking and the
development of appropriate strategies to address their care and supervision
requirements.98 The report also highlights the relevant international
instruments, focusing specific attention on the United Nations Standard
Minimum Rules for the Treatment of Prisoners.99 The report notes that
according to studies undertaken in a number of countries, fifty to eighty
percent of prisoners have some form of mental disability.100 This guidance
advises that comprehensive management strategies need to be developed,
and mechanisms put in place to ensure that they are implemented, to
guarantee that prisoners with disabilities are treated in accordance with the
requirements of international human rights standards, while their prospects
of social reintegration are enhanced.
The guidance draws on the CRPD and states:
In order to ensure that persons with disabilities can access
justice on an equal basis with others, relevant legislation
and procedures need to be in place to ensure that persons
with disabilities charged with or convicted of a criminal
offence are not discriminated against in the criminal justice
system. Prison sentences should be used as a last resort in
all cases. This principle should be fundamental in deciding
whether to imprison offenders with disabilities, and
especially those who have committed non-violent offences,
taking into account the level of care they are likely to
receive in prisons. The difficulties people with disabilities
face in society are magnified in prisons, given the nature of
the closed and restricted environment and violence resulting
from overcrowding, lack of proper prisoner differentiation
and supervision, among others. Prison overcrowding
accelerates the disabling process, with the neglect,
psychological stress and lack of adequate medical care,
characteristic of overcrowded prisons. In order to ensure
the equal treatment of prisoners with disabilities and the
protection of their human rights, prison authorities need to
develop policies and strategies which address the needs of
this group in prisons. Such policies should be informed by
the United Nations Convention on the Rights of Persons
with Disabilities and national legislation, and address issues
such as staff training, classification, accommodation, health
care, access to programmes and services, safety, preparation
98.
Id.
99.
Id.
100. Id.
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309
for release, early conditional release and compassionate
101
release, as a priority.
Drawing on interviews with correctional officials, mental health
experts, prisoners and lawyers, a report of Human Rights Watch identifies
persons with psycho-social disabilities in prison—“their numbers, the
nature of their illnesses, and the reasons for their incarceration”102 and
“confinement in long-term segregation facilities, the way prisons respond to
their self-mutilation and suicide attempts, and the services they receive
upon release from prison”103 are also issues to be considered with respect to
prisoners with disabilities. This research by Human Rights Watch “reveals
significant advances in mental health care services in some prison
systems.”104 Prison healthcare officials face, however, “daunting obstacles
—including facilities and rules designed for punishment.”105 “The current
fiscal crisis in states across the country also threatens the gains that have
been made.”106 However, in many prisons “deep-rooted patterns of neglect,
mistreatment, and even cavalier disregard for the well-being”107 of these
individuals still persists.
A report by the Prison Reform Trust presents the findings of a major
survey of prisoners with learning disabilities and learning difficulties,
which explored their experiences of the criminal justice system.108 Based
on interviews, the study found that:
[b]efore being arrested: prisoners were almost twice as
likely as the comparison group to have been unemployed.
Over half had attended a special school and they were three
times as likely to have been excluded from school as the
comparison group. At the police station: less than a third
of prisoners received support from an appropriate adult
101. U.N. Handbook on Prisoners with Special Needs, supra note 96, at 43.
102. Human Rights Watch, Ill Equipped: U.S. Prisons and Offenders with Mental Illness, at 1
(Oct. 21, 2003), http://www.hrw.org/en/reports/2003/10/21/ill-equipped (last visited Feb. 27, 2011)
[hereinafter Human Rights Watch].
103. Id.
104. Id.
105. Id.
106. Id.
107. Human Rights Watch, supra note 102, at 2.
108. See generally Jenny Talbot, No One Knows Report and Final Recommendations,
Prisoners’ Voices: Experiences of the Criminal Justice System by Prisoners with Learning Disabilities
and Difficulties (Prison Reform Trust 2008), available at http://www.wwda.org.au/talbot1.pdf (last
310
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during police interview and half of prisoners with possible
learning or borderline learning disabilities said they did not
know what would happen once they had been charged. A
few said they had been beaten or handled roughly by the
police and felt manipulated into agreeing to a police
interview without support. In court: over a fifth of
prisoners did not understand what was going on in court;
some didn’t know why they were in court or what they had
done wrong. Most prisoners said the use of simpler
language in court would have helped. In prison: most
prisoners had difficulties reading and understanding prison
information, which often meant they did not fully
understand what was going on or what was expected of
them. They also had difficulties filling in prison forms,
which for some meant missing out on things such as family
visits, and going to the gym, or getting the wrong things
delivered such as meals. Over half said they had difficulties
making themselves understood. Prisoners frequently had
difficulties accessing the prison regime, “including
offending behaviour programmes, and spent long periods of
time on their own with little to do.” However, over half of
prisoners said they attended education classes and those
with possible learning or borderline learning disabilities
were the most likely to say so. Prisoners with disabilities
were five times as likely as the comparison group to have
been subject to control and restraint techniques and were
three times as likely to have spent time in segregation.
Over half said they had been scared while in prison and
slightly less than half said they had been bullied; none of
the comparison group said they had been bullied. Prisoners
were almost three times as likely as the comparison group
109
to have clinically significant depression or anxiety.
Thus, prisoners with learning disabilities encounter unique problems.
H. As Victims of Crimes
Persons with disabilities are more vulnerable as victims of crimes from
both strangers and persons who know them. However, the difficult
experience does not end after the alleged crime is over, because often the
police and other elements of the legal system treat persons with disabilities
poorly when they seek to redress the wrong. Police stations are often
inaccessible, police do not know how to work with victims with disabilities,
sign language interpreter services are not available, and materials in
109. Id. at v–vi.
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311
alternative formats for victims who are blind are not provided. Often the
most serious barrier is that persons with disabilities are not believed or are
not viewed as credible and reliable witnesses by police and prosecutors.
Unfortunately, little statistical data is available on crimes against
persons with disabilities internationally. In 1998, the United States enacted
the Crime Victims with Disability Awareness Act, Public Law 105-301 to
address this gap in statistics.110 This act required the collection of crime
statistics against persons with developmental disabilities.111 A 2007 U.S.
Department of Justice study concluded that persons with disabilities were
victims of about 47,000 rapes, 79,000 robberies, 114,000 aggravated
assaults, and 476,000 simple assaults.112 Age-adjusted rate of nonfatal
violent crime against persons with disabilities was 1.5 times higher than the
rate for persons without disabilities.113 Females with a disability had a
higher victimization rate than males with a disability; males had a higher
rate than females among those without a disability.114 The history of this
violence is well brought to light in a report by the Leadership Conference
on Civil Rights, which stated:
Disability bias can also manifest itself in the form of
violence—and it is imperative that a message be sent to our
country that these acts of bias motivated hatred are not
acceptable in our society.
Numerous disability and
criminology studies, over many years, indicate a high crime
rate against people with disabilities. However, the U.S.
Office on Crime Statistics reported in 2002 that in many
cases, crime victims with disabilities have never
participated in the criminal justice process, “even if they
115
have been repeatedly and brutally victimized.”
There are a number of challenges for disability-based hate crime
reporting. For instance, hate crimes against people with disabilities are
110. Crime Victims with Disabilities Awareness Act of 1998, Pub. L. No. 105-301, 112 Stat.
2838 (1998) (codified at 42 U.S.C. § 3732).
111. Id.
112. ERIKA HARRELL & MICHAEL R. RAND, CRIME AGAINST PEOPLE WITH DISABILITIES (U.S.
DEP’T OF JUST., BUREAU OF JUST. STAT., 2007), available at http://bjs.ojp.usdoj.gov/content/
pub/pdf/capd07.pdf (last visited Feb. 27, 2011).
113. Id.
114. Id.
115. Leadership Conference on Civil Rights, Confronting the New Faces of Hate: Hate Crimes
in America 2009, Hate Crimes Against Individuals with Disabilities, http://www.civilrights.org/
publications/hatecrimes/disabilities.html (last visited Feb. 27, 2011) [hereinafter Confronting the New
Faces of Hate].
312
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often never reported to law enforcement agencies.116 The victim may be
ashamed, afraid of retaliation, or afraid of not being believed.117 The victim
may be reliant on a caregiver or other third party to report the crime, who
fails to do so.118 Or, the crime may be reported, but there may be no
reporting of the victims’ disability, especially in cases where the victim has
an invisible disability that they themselves do not divulge.119
“Perhaps the biggest reason for underreporting of disability-based hate
crimes is that disability-based bias crimes are all too frequently mislabeled
as ‘abuse’ and never directed from the social service or education systems
to the criminal justice system. Even very serious crimes—including rape,
assault, and vandalism—are too frequently labeled ‘abuse.’”120
For a comprehensive bibliography on crimes against persons with
disabilities, see the work of Michelle Armstrong.121 The unique crime
experiences of women with disabilities are explored by Springtide
Resources and by DAWN.122 With appropriate accommodations and
support, women with disabilities can be successful in getting relief for the
crimes against them in the legal system. A study by Cape Mental Health in
South Africa, described a highly successful project.123
116. Id.
117
Id.
118
Id.
119
Id.
120. Confronting the New Faces of Hate, supra note 115.
121. See MICHELLE ARMSTRONG, VIOLENCE AND CRIMES AGAINST PEOPLE WITH DISABILITIES
BIBLIOGRAPHY (Wyoming Inst. for Disabilities, Sept. 2008), available at http://works.bepress.com/
cgi/viewcontent.cgi?article=1002&context=michelle_armstrong (last visited Mar. 23, 2011).
122. Springtide Resources, Ending Violence against Women, Faces of Violence Against
Women
with
Developmental
Disabilities,
http://www.springtideresources.org/resources/
show.cfm?id=12 (last visited Mar. 23, 2011); Vote for Equality, Q&A: How Are Women with
Disabilities Discriminated Against?, http://dawn.thot.net/election2004/caefs4.htm (last visited Mar. 23,
2011).
123. Beverley Jo Dickman & Amanda Jane Roux, Cape Mental Health, Complainants with
Learning Disabilities in Sexual Abuse Cases: A 10-year Review of a Psycho-legal Project in Cape
Town, South Africa, 33 BRIT. J. OF LEARNING DISABILITIES 138, 143 (2005).
2011]
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313
V. COMMON BARRIERS TO DISABILITY INCLUSION IN RULE OF LAW
PROGRAMMING124
Access to justice is often addressed in rule of law and justice reform
programming conducted by international donors and implementing
partners. Regrettably, many of these programs ignore the interests of
persons with disabilities in designing their programs, despite mandates to
do otherwise, as contained in the CRPD Article 32 on International
Cooperation, and donor’s own guidelines.125 There are numerous examples
of somewhat inclusive disability development policies, although most do
not specifically address access to justice program implementation in a
detailed manner. The World Bank has established policies for inclusive
programming and issued a publication that examines recent policies of
major multilateral and bilateral agencies, which they have employed to
include disability in development aid and provides some examples of
implementation.126 Unfortunately, to date, it does not appear that any of
these policies have resulted in significant inclusion of persons with
disabilities as active participants in these entities’ access to justice
programs.
Several barriers to inclusion in rule of law and justice reform
programming exist. For example, rule of law implementing partners have
little awareness of disability issues or history of engagement with DPOs.
Disability law and policy, at both domestic and international levels, are
relatively new and therefore unfamiliar terrain for many donors and
implementing partners engaged in rule of law programming. There are few
role models for persons with disabilities in the legal field because of the
inaccessibility of court houses, law schools, training venues, government
offices, and police stations. Furthermore, persons with disabilities and
124. The more detailed discussions in this article of both barriers to and approaches to
improving the inclusion of persons with disabilities in rule of law programming expands upon the earlier
work outlined in JANET E. LORD, JERRY MINDES, STEPHANIE ORTOLEVA, MICHAEL STEIN & ALLISON
DEFRANCO, DISABILITY INCLUSION IN DEMOCRACY AND GOVERNANCE PROGRAMMING: STRATEGIES
FOR WORKING ON DISABILITY ISSUES IN DEVELOPING COUNTRIES (2010) (on file with author).
125. CRPD, supra note 1, art. 32.
126. See generally JANET LORD ET AL., DISABILITY AND INTERNATIONAL COOPERATION AND
DEVELOPMENT: A REVIEW OF POLICIES AND PRACTICES (2010); Canadian International Development
Agency, Gender Analysis, http://www.acdi-cida.gc.ca/acdi-cida/acdi-cida.nsf/Eng/2D15BA48F56F13
DE8525729B00510DA4?OpenDocument (last visited Mar. 15, 2011); DEVELOPMENT FOR ALL:
TOWARDS A DISABILITY-INCLUSIVE AUSTRALIAN AID PROGRAM 2009–2014 III (Australian Agency for
International Development, Nov. 2008), available at http://www.ausaid.gov.au/publications/pdf/dev-forall.pdf (last visited Mar. 15, 2011); FINLAND’S DEVELOPMENT POLICY PROGRAMME 2007: TOWARDS A
SUSTAINABLE AND JUST WORLD COMMUNITY 16 (Ministry of Foreign Affairs of Finland, 2007),
available at http://formin.finland.fi/Public/download.aspx?ID=24014&GUID={41C62727-0F60-4794B744-F40E9460D79F} (last visited Mar. 15, 2011).
314
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DPOs may have little experience in law and policy advocacy and are
therefore often left out of rule of law programming engaging Civil Society
Organizations (CSOs). DPOs are not identified as target constituents in
constitutional drafting exercises. Therefore, DPOs cannot become technical
assistance providers, such as experts in constitutional law, international
human rights, criminal justice reform, administrative law, civil law, and
criminal law. Also, gender rights programs do not possess disability law
and policy expertise and therefore leave disability out of their assessments,
law reforms and other work product. There is a general absence of free
legal services for persons with disabilities with expertise in disability law
issues and in how to work with and serve clients with disabilities.
Transitional justice mechanisms do not make accommodations to ensure the
participation of persons with disabilities in their processes (e.g.,
communication barriers, physical barriers, transportation barriers) and
attitudinal barriers.
VI. STRATEGIES FOR ACHIEVING INCLUSION OF DISABLED PERSONS IN
RULE OF LAW PROGRAMMING127
International donors and implementing partners clearly must and
indeed can, take steps to integrate persons with disabilities into rule of law
and justice programming. Some simple steps include the following,
described below.
A. Legal Analysis, Research, and Institution Reform
Ensure that legal analyses and research includes coverage of disability
issues consistent with international human rights standards on disability,
especially those enumerated in the CRPD.
Perform disability-focused reviews of laws to identify and repeal or
amend discriminatory legislation, regulations, policies, or practices
expressly barring persons with disabilities from being witnesses, jurors,
judges, or lawyers, in consultation with disabled persons and DPOs.
Implement programs that seek to strengthen legal protections for the
human rights of persons with disabilities in conformity with international
standards, especially those enumerated in the CRPD.
Ensure that the reform of judicial, legal, and regulatory frameworks
(codes, laws, constitutions, etc.) is done in consultation with DPOs and
consistent with international standards on disability.
127. The more detailed discussions in this article of both barriers to and approaches to
improving the inclusion of persons with disabilities in rule of law programming expands upon the earlier
work outlined in JANET E. LORD, JERRY MINDES, STEPHANIE ORTOLEVA, MICHAEL STEIN & ALLISON
DEFRANCO, DISABILITY INCLUSION IN DEMOCRACY AND GOVERNANCE PROGRAMMING: STRATEGIES
FOR WORKING ON DISABILITY ISSUES IN DEVELOPING COUNTRIES (2010) (on file with author).
2011]
Ortoleva
315
Undertake disability audits in access to justice assessments to identify
barriers and possible solutions.
Ensure that human rights institutions, such as Ombudsman offices and
national human rights commissions, include persons with disabilities in
their work with disadvantaged populations.
B. Training Judges, Lawyers, and other Justice Professionals
Enhance coverage of disability law in judicial professional
development and access to the law programs by ensuring that disabled
lawyers and judges are part of such programs.
Include a disability component in programs designed to strengthen
justice sector institutions, including the judiciary, prosecutors, legal
defenders, and civilian police.
C. Judges and Lawyers with Disabilities
Increase opportunities for persons with disabilities to attend law school
and other legal professional education, including the provision of
reasonable accommodation if necessary, and ensure that admission criteria
are not discriminatory.
Foster the inclusion of disabled lawyers and judges in programs
designed to strengthen independent judicial and legal professional
associations.
Enhance coverage of disability law in judicial professional
development and access to the law programs, ensuring that disabled
lawyers and judges are part of such programs.
D. Disabled Persons and Disabled Peoples Organizations
Include persons with disabilities on human rights education training
teams and other rule of law training endeavors.
Work with DPOs to improve the access to justice and the skills and
knowledge necessary for disabled persons and their allies to use the justice
system effectively.
Provide coverage of the CRPD in training on human rights treaty body
reporting.
Ensure that human rights institutions, such as Ombudsman offices and
national human rights commissions, include persons with disabilities in
their work with disadvantaged populations.
E. Crime and the Criminal Justice System
Include a disability component in programs designed to strengthen
justice sector institutions, including civilian police.
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Provide training to police and prosecutors on working with persons
with disabilities.
Ensure that police stations are accessible to persons with disabilities
and that appropriate accommodations are available, such as sign language
interpreters and materials in Braille or other accessible formats.
Include disabled persons and DPOs in crime prevention, community
security, and civilian policing program design and implementation.
Improve the investigative capacity of police and/or prosecutors
through disability awareness training.
F. Community Education and Awareness Raising
Provide coverage of the CRPD in human rights treaty body reporting
training.
Increase citizen awareness of the human rights of persons with
disabilities through participatory disability rights education.
Include issues of concern to persons with disabilities in media justice
awareness programs.
G. Physical Access to Courts and Judicial Tribunals
Ensure that facilities, which are part of the justice sector, are
accessible to persons with disabilities, especially when facilities are
constructed or renovated.
Provide reasonable accommodations to witnesses and parties in the
courts, tribunals and other elements of the justice system.
Develop systems to ensure that justice institutions communicate with
persons with disabilities in means that are accessible to them, for example,
sign language interpreters, Braille, etc.
Thus, for purposes of a discussion on the inclusion of persons with
disabilities in access to justice and rule of law programming, as with all
aspects of development programs, persons with disabilities must be
integrated into these programs. The preamble to the CRPD provides: “(g)
[e]mphasizing the importance of mainstreaming disability issues as an
integral part of relevant strategies of sustainable development. . . .”128
As programs are designed, as policies are drafted, and as projects are
implemented on the ground, the needs and concerns of persons with
disabilities must be integrated and the involvement of persons with
disabilities and DPOs must be a primary focus, consistent with international
standards.
128. CRPD, supra note 1, pmbl., § (g).
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VII. CONCLUSIONS AND RECOMMENDATIONS MOVING FORWARD
This article suggests that the use of a coherent methodology to address
access to justice for persons with disabilities (drawing on the interpretation
of this right under other human rights treaties and other international
documents outlining the scope of the right to access to justice generally and
for persons with disabilities in particular) would be helpful in proposing
and elaborating a comprehensive understanding of the right for access to
justice for persons with disabilities. This article has sought to explain how
the CRPD Committee, state and non-state actors might take steps to: name
operative denials of access to justice for persons with disabilities, identify
their forms, contexts, and means of perpetuation, and describe the ways in
which they harm persons with disabilities and the integrity of the justice
system itself. It also articulates States Parties’ normative obligations to
eliminate denials of access to justice for persons with disabilities and the
scope of those obligations. Furthermore, it determines whether denials of
access to justice for persons with disabilities violates the rights of persons
with disabilities, including corollary rights such as their right to
employment or their right to transportation, or whether it constitutes a form
of discrimination. If it does constitute discrimination, then available
remedies are devised for the individual whose rights were violated. Lastly,
to address the structural nature of the denials of access to justice for persons
with disabilities, the use of temporary special measures or programs of
affirmative action can be used as a remedy.
The role of the CRPD Committee in articulating and applying a
coherent methodology is crucial to dismantling denial of access to justice
for persons with disabilities. The CRPD Committee can articulate the
nature and scope of States Parties’ normative obligations to eliminate
denials of access to justice through its mandates based on its examination of
States Parties’ periodic progress reports pursuant to the CRPD Article 35.129
The CRPD Committee also can develop General Recommendations that
elaborate the content and meaning of the CRPD pursuant to the CRPD
Articles 38(b)130 and 39.131 The CRPD Committee should consider
communications from those individuals in countries that have ratified the
Optional Protocol to the CRPD Optional Protocol132 and undertake inquiries
into grave or systematic violations, pursuant to Article 6 of the CRPD
Optional Protocol.133 Through its Concluding Observations, the CRPD
129. Id. art. 35.
130. Id. art. 38(b).
131. Id. art. 39.
132. Id. art. 1.
133. CRPD, supra note 1, art. 6.
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Committee can clarify and provide an authoritative interpretation of the
obligations that States Parties have to eliminate denials of access to justice
for persons with disabilities in a particular situation.
Under the communication and inquiry procedures of the Optional
Protocol, the CRPD Committee can apply the CRPD to determine whether
denials of access to justice constitute a form of discrimination against
persons with disabilities, contrary to Article 3(b).134 The CRPD Committee
can also determine whether denials of access to justice violates the rights of
persons with disabilities to be equal before, and under the law, and to be
entitled without any discrimination to the equal, and effective protection,
and equal benefit of the law under Articles 5(1) and (2).135 The obligation
to raise awareness and the elimination of stereotypes of persons with
disabilities is pervasive in the justice system under Article 8136 and the right
to access to justice under Article 13.137 The CRPD Committee also can
examine corollary rights such as: the right to employment and work with
respect to equal opportunity for persons with disabilities to work as lawyers
and to serve as judges under Article 27;138 and obtain legal education in law
schools and learn about the structure and operations of the legal system so
that they can utilize it under Article 24.139
These procedures can be used to name denials of access to justice.
They can also elaborate consequent wrongs, give concrete meaning to
States Parties’ obligations, determine the existence of discrimination and/or
other violations based on denials of access to justice, and remedy the
individual and structural wrongs of offensive denials of access to justice.
Significantly, these procedures that allow the CRPD Committee to apply
the CRPD to specific instances of denials of access to justice can also
highlight facts and model practices that States Parties can apply to eradicate
such denials of access to justice for persons with disabilities.
In order for all the players attempting to apply the CRPD to eliminate
all forms of discrimination against persons with disabilities, and to ensure
their exercise of their human rights and fundamental freedoms, clearer
guidance on the obligations to eliminate wrongful denials of access to
justice for persons with disabilities would be helpful. A useful way to
achieve this goal would be for the CRPD Committee to craft a General
Recommendation on the nature and scope of obligations with respect to
134. See id. art. 3(b).
135. See id. art. 5(1)–(2).
136. See id. art. 8.
137. See id. art. 13.
138. See CRPD, supra note 1, art. 27.
139. See id. art. 24.
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Ortoleva
319
access to justice under Articles 5, 8, 9, 12, and the primary Article on this
issue, Article13, as well as the corollary Articles 24 and 27 of the CRPD.
Although the CRPD Committee currently is considering development of a
separate General Recommendation on Article 9 and 12, which has yet to be
developed. Guidance through a General Recommendation would enhance
understanding and application of these provisions domestically and
internationally. Where the nature and scope of the treaty obligation are
more fully understood, courts and other treaty bodies might be more likely
to rule that denials of access to justice for persons with disabilities are a
form of discrimination. A comprehensive General Recommendation might
make clear that the fundamental human right of access to justice is
indivisible, interdependent, and interconnected with all other human rights
of persons with disabilities. Where access to justice is provided, “the
elimination of discrimination against persons with disabilities is generally
accelerated.” As a result, there might be a more concerted effort by all
players to identify the harms of denials of access to justice for persons with
disabilities, and to provide information that disconfirms wrongful
assumptions and stereotypes about persons with disabilities.
The CRPD Committee has a powerful opportunity to leverage its
position as the international human rights treaty body responsible for
monitoring compliance with the CRPD and to raise awareness of
transnational approaches to eliminating wrongful denials of access to
justice. Of particular importance is the need to foster understanding of how
different States Parties have dismantled barriers to access to justice,
overcoming barriers that are de facto, de jure, and persistent. One approach
is to examine how domestic courts have found that denials of access to
justice are unlawful discrimination or otherwise violate legal protections of
constitutional and human rights of persons with disabilities, perhaps thereby
more effectively integrating the CRPD standards into domestic court
jurisprudence.
In entering into dialogue with States Parties on their periodic progress
reports, individual CRPD Committee members can explore how the
experiences of eliminating wrongful denials of justice to persons with
disabilities in one country or sector might be applied to another country or
sector. Responding to the challenge of dismantling wrongful denials of
access to justice is not limited to the CRPD Committee. The specialized
agencies and offices of the United Nations, such as the World Bank, the
World Health Organization, the International Labour Organization, the
United Nations Educational, Scientific and Cultural Organization, and the
United Nations High Commissioner for Refugees, can play significant roles
in reporting to the CRPD Committee how denials of access to justice
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operate to deny persons with disabilities their rights in their areas of
responsibility.
States Parties implementing the CRPD and reporting on the progress
they have made domestically are also key players. DPOs and nongovernmental organizations monitoring observance of the CRPD
domestically and internationally, including their submission of shadow
reports to the CRPD Committee, and their use of the communication and
inquiry procedures under the Optional Protocol, are also essential. These
organizations can be significant in highlighting denials of access to justice,
identifying their harms and explaining both how these denials of access to
justice violate the rights of persons with disabilities and what might be
effective remedies for these violations.
Since access to justice is such a fundamental right to the realization by
persons with disabilities of all of the civil, political, economic, social and
cultural rights enumerated in the CRPD, developing a sound jurisprudence
on Article 13 and related articles of the CRPD is essential to the
achievement of the array of human rights enumerated in the CRPD and
realizing justice and equality for persons with disabilities world-wide.
A HUMAN RIGHTS FRAMEWORK FOR
CORPORATE ACCOUNTABILITY
Jeanne M. Woods∗
I.
II.
III.
IV.
INTRODUCTION ................................................................................ 321
THE WESTPHALIAN CONCEIT .......................................................... 322
NEW/OLD PARADIGMS OF EXPLOITATION AND IMPUNITY ............. 328
CONCLUSION ................................................................................... 333
I. INTRODUCTION
The ongoing controversy over corporate liability for human rights
violations1 seems counterintuitive today, in an era characterized by the
unprecedented expansion of both rights instruments and global commercial
intercourse. There is a dual paradox in our “age of rights:”2 while the postWar “human rights revolution” recognized and gave legal content to
individual human rights, the sovereign state continues to control the
exercise of international legal personality. International legal personality is
the capacity to be a subject of rights and duties under international law, that
is, to participate in the creation of legal norms, to enforce legal claims, and
to be held legally accountable.3 This problem was only superficially
∗
Jeanne M. Woods is the Henry F. Bonura, Jr. Distinguished Professor of Law at Loyola
University College of Law, New Orleans. She would like to thank Kandice Doley and English Pratts for
their research assistance.
1.
The debate has taken place within the United Nations, in the legal academy, and in the
courts. In a major retreat, recent United States Federal Court decisions have ruled that corporations
cannot be sued for violations of international law under the Alien Torts Statute. See, e.g., Kiobel v.
Royal Dutch Petroleum Co., 456 F.Supp.2d 457 (S.D.N.Y. 2006). Cf. Romero v. Drummond Co., Inc.,
552 F.3d 1303 (11th Cir. 2008). United Nations norms are being developed by Harvard professor John
Ruggie. See John Ruggie, Business and Human Rights: The Evolving International Agenda, 101 AM. J.
INT’L L. 819, 819 (2007). For academic discussion see Carlos M. Vázquez, Direct vs. Indirect
Obligations of Corporations Under International Law, 43 COLUM. J. TRANSNAT’L L. 927, 927 (2005);
Jordan J. Paust, The Reality of Private Rights, Duties, and Participation in the International Legal
Process, 25 MICH. J. INT’L L. 1229, 1232 (2004); Gabriel D. Pinilla, Note & Comment: Corporate
Liability for Human Rights Violations on Foreign Soil: A Historical and Prospective Analysis of the
Alien Tort Claims Controversy, 16 ST. THOMAS L. REV. 687, 687 (2004); Developments in the LawCorporate Liability for Violations of International Human Rights Law, 114 HARV. L. REV. 2025, 2025
(2001).
2.
See generally LOUIS HENKIN, THE AGE OF RIGHTS (Columbia Univ. Press 1990).
3.
During the period beginning in the mid-15th century through the 19th century, the concept
of state sovereignty was being constructed in Europe. International legal personality emerged as a
concept distinct from sovereignty in the seventeenth century, in order to allow certain non-state actors,
the German Princes, to participate in diplomatic activities. Although this was after Westphalia, the Holy
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addressed in the human rights canon, while at the same time the dominant
states structured international law and society so as to facilitate the
unimpeded pursuit of profit by global corporations that have the rights, but
not the duties, of international persons.
II. THE WESTPHALIAN CONCEIT
Modern international law is traditionally dated from the 1648 Peace of
Westphalia.4 Under the prevailing—but increasingly contested5—doctrine,
Westphalia symbolizes the consolidation of the sovereign state system in
Europe. Accordingly, the Treaty provides textual affirmation of the statecentered essence of international law and its subjects.6 The state-centric
perspective survived despite the origins of international law in natural law
philosophy,7 which “obliges all men, in all conditions, in all times, and in
all places, in one and the same way.”8
Yet at the time of Westphalia non-state actors, in particular global
corporations, were exercising sovereign prerogatives: negotiating treaties
with foreign sovereigns; capturing and administering territory; collecting
taxes; coining money; and waging war with indigenous peoples in Asia,
Africa and the Americas.9 The state did not assert itself as the sole subject
of international law until it became the dominant form of political
Roman Empire remained dominant over much of Europe’s territory. Since then international legal
personality has been used both to include and to exclude actors from international legal society. For
example, chartered trading companies were delegated international legal personality to enable them to
play a vanguard role in the conquest of colonial empires.
4.
1 CONSOLIDATED TREATY SERIES 198.
See, e.g., STEPHANE BEAULAC, THE POWER OF LANGUAGE IN THE MAKING OF
INTERNATIONAL LAW: THE WORD SOVEREIGNTY IN BODIN AND VATTEL AND THE MYTH OF
WESTPHALIA 185 (Martinus Nijhoff Publishers 2004).
5.
6.
Leo Gross, The Peace of Westphalia, 42 AM J. INT’L L. 20, 28 (1948).
7.
See, e.g., the earliest writings by international legal scholars such as Hugo Grotius,
Emmerich de Vattel, and Fransisco de Vitoria: HUGO GROTIUS, MARE LIBERUM (1609); EMMERICH DE
VATTEL, THE LAW OF NATIONS OR THE PRINCIPLES OF NATURAL LAW (1758); FRANCISCO DE VITORIA,
POLITICAL WRITINGS 223, 295 (Anthony Pagden et al. eds., Cambridge Univ. Press, 1st ed., 1991)
(1486–1546); as well as DE POTESTATE CIVILI (1528).
8.
John P. Doyle, Francisco Suarez on the Law of Nation, in RELIGION AND INTERNATIONAL
LAW 103, 106 (Carolyn Evans & Mark W. Janis eds., 2004). See also, Antony Anghie, Finding the
Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 HARV. INT’L
L.J. 1, 25 (1999).
9.
M.F. LINDLEY, THE ACQUISITION AND GOVERNMENT OF BACKWARD TERRITORY IN
INTERNATIONAL LAW 93 (1926).
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Woods
323
organization after the Industrial Revolution.10 The Industrial Revolution
facilitated the division of the Global South into colonial appendages of
European territorial states, thus strengthening them economically and
militarily while also elevating this organizational structure above other
more diffused polities, such as the Italian City-State and the Germanic
Hanseatic League.11
During this period, legal positivism came to prominence, replacing
natural law as the jurisprudential foundation of international law.12 With its
emphasis on the concentration of power, positivism better accommodated
the increasingly prominent role of the state in global affairs,13 enforcing a
rigid dichotomy between state and non-state actors. However legal
positivism, with its veneration of state power, lost much of its appeal after
the systematized horror of World War II.14 In response, natural rightsbased norms were given legal substance in the Nuremberg Charter15 and an
array of human rights treaties;16 nevertheless, the post-war legal system
fashioned by these instruments retained the essence of the state-centric
regime: the power of the so-called “civilized” states to grant and withhold
legal personality.
Prominently absent from the Westphalian narrative is the legal
subjectivity that enabled the first corporations to shape the international
legal order. Since the sixteenth century, chartered trading companies had
10.
B.S. CHIMNI, INTERNATIONAL LAW AND WORLD ORDER 226–27 (Sage Publications
1993).
11. See generally HENDRIK SPRUYT, THE SOVEREIGN STATE AND ITS COMPETITORS: AN
ANALYSIS OF SYSTEMS CHANGE (Princeton Univ. Press 1994).
12.
See, e.g., Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897).
13. Positivist theory, asserting that law is the creation of sovereign states possessing certain
“unique, civilized, and social institutions” peculiar to the West, facilitated this consolidation. It was
necessary to “distinguish sovereigns proper from other entities that also seemed to possess the attributes
of sovereignty, such as pirates, non-European states . . . nomads” and corporations. Thus, the doctrine
of territorial sovereignty became paramount. Anghie, supra note 8, at 26.
14. See, e.g., Lon L. Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71
HARV. L. REV. 630 (1958) (providing a prominent example of the postwar debate on positivism). See
also ISSA G. SHIVJI, THE CONCEPT OF HUMAN RIGHTS IN AFRICA 48 (1989).
15.
Charter of the International Military Tribunal, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S.
279.
16. See, e.g., the core international human rights instruments, including the International
Covenant on Civil and Political Rights, G.A. Res. 2200, U.N. GAOR, 21st Sess. Supp. No. 16, U.N.
Doc. A/6316 (Dec. 16, 1966); International Covenant on Economic, Social and Cultural Rights, G.A.
Res. 2200A, U.N. GAOR, 21st Sess. Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966); Convention on
the Elimination of All Forms of Racial Discrimination, Oct. 26, 1996, 660 U.N.T.S. 195.
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been empowered with international legal personality.17 These corporations
were the means by which European states conquered their vast empires.18
It was only after the European states had consolidated themselves
politically and militarily—that is, after the Industrial Revolution and the
triumph of legal positivism—that these charters were revoked, the states
themselves claimed sovereignty over their distant empires, and the
corporations were reduced in international legal theory from “subject” to
“object” of international law.19 Yet many of the rules that today grant
rights to powerful corporations emerged from the practice of these profitdriven entities20 that are now shielded from human rights law as “non-state
actors.”
Thus, in the post-War legal regime international legal personality,
though expanded, was not democratized. While the rights of individuals
were proclaimed in declarations and legally entrenched in covenants, states
retained the power to decide whether these rights could be adjudicated;21
colonized peoples continued to be “objects” of the law as the post—War
institutions embraced patronizing “trusteeships;”22 and undemocratic and
17. See SIBA GROVOGUI, SOVEREIGNS, QUASI SOVEREIGNS, AND AFRICANS: RACE AND SELFDETERMINATION IN INTERNATIONAL LAW 68–69 (Univ. of Minnesota Press 1996).
18.
LINDLEY, supra note 9, at 91–93.
19.
Id. at 109.
20. Under the slogan of “flag follows trade,” norms of international law were developed to
protect overseas investors, such as the law of state responsibility requiring “prompt, adequate and
effective compensation” for expropriations. This has become known as the “Hull formula.” Secretary
Hull to the Mexican Ambassador, August 22, 1938: “The Government of the United States merely
adverts to a self-evident fact when it notes that the applicable and recognized authorities on international
law support its declaration that, under every rule of law and equity, no government is entitled to
expropriate private property, for whatever purpose, without provision for prompt, adequate and effective
payment therefore. In addition, clauses appearing in the constitutions of almost all nations today, and in
particular in the constitutions of the American republics, embody the principle of just compensation.
These, in themselves, are declaratory of the like principle in the law of nations.” See generally Pamela
B. Gann, Compensation Standard for Expropriation, 23 COLO. J. TRANSNAT’L L. 615 (1985). See R.P.
ANAND, NEW STATES AND INTERNATIONAL LAW 102 (1972). A 1991 review showed that, with one
exception, every arbitral tribunal that had considered the issue from 1971 to 1991 had “affirmed that
customary international law requires a state expropriating the property of a foreign national to pay the
full value of that property measured, where possible, by the market price.” Patrick Norton, A Law of the
Future or a Law of the Past? Modern Tribunals and the International Law of Expropriation, 85 AM. J.
INT’L L. 474, 488 (1991).
21. See, e.g., Optional Protocol to the International Covenant on Political and Civil Rights,
Dec. 16, 1966, 999 U.N.T.S. 171.
22. Under the United Nations Charter a Trusteeship Council was established to supervise the
administration of colonial territories, ostensibly to “promote the advancement of the Trust Territories
and their progression towards sovereignty.” Trusteeship Council, UN.ORG, http://www.un.org/en/
mainbodies/trusteeship/ (last visited Feb. 25, 2011). See generally Christian E. Ford & Ben A.
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unaccountable financial institutions were endowed with autonomy,
personality, and enormous power.23 Despite the natural law-based human
rights infrastructure, the positivist superstructure maintained the dichotomy
between “state” and “non-state” actor.
The reign of the European global empire was punctuated by two
devastating world wars, signaling the contraction of the global economy.
During this period, roughly covering the first half of the twentieth century,
the ravages of unregulated laissez-faire capitalism—or liberalism—were
challenged and tempered.24 Economic conditions and mass movements
forced industrialized states to regulate corporate power25 and to provide
Oppenheim, Neotrusteeship or Mistrusteeship? The “Authority Creep” Dilemma in United Nations
Transitional Administration, 41 VAND. J. TRANSNAT’L L. 55 (2008). See also Brian Deiwert, A New
Trusteeship For World Peace and Security: Can an Old League of Nations Idea Be Applied to a TwentyFirst Century Iraq?, 14 IND. INT’L & COMP. L. REV. 771, 772 (2004).
23. As World War II was ending, the Western Allied Powers gathered in Bretton Woods, New
Hampshire, to govern the global economy. They chartered the International Bank for Reconstruction
and Development (World Bank) to fund post-War reconstruction, and the International Monetary Fund
(IMF) to provide short-term loans for countries experiencing balance of payments deficits. Because of
the nature of their decision-making processes, the International Financial Institutions have been
criticized as undemocratic institutions. See Antony Anghie, Time Present and Time Past: Globalization,
International Financial Institutions, and the Third World, 32 N.Y.U. J. INT’L L. & POL. 243, 253–54
(2000). Voting in the Fund and the Bank is weighted according to the financial contributions of the
Members, known as quotas, giving the most power to the richest States. This “democracy deficit”
leaves developing countries with little influence over IFI policies and decisions. The United States
exercises 17.38% of the vote, the largest share of any member. The U.S. is followed by Japan with
6.23%, Germany with 6.09%, and France and the United Kingdom, with 5.03% each. These institutions
have also been accused of unduly interfering in the affairs of sovereign States. This charge relates
primarily to the practice of conditioning assistance on the adoption of neo-liberal macroeconomic
reforms. Conditionality requires countries to undertake market liberalization measures such as
privatizing state-owned enterprises; discontinuing government intervention in agricultural and raw
materials markets; reducing tariffs and non-tariff barriers such as quotas and licensing requirements;
shifting to an export-oriented economy; removing subsidies on exports; reducing expenditures on
education, health, and social security. The net result of such measures is the concentration of wealth in
the hands of a few; inability of the rural population to grow their own food; internal displacement of the
rural population through migration to overcrowded cities; growing emiseration of the nation’s poor. See
also Susan Park, Assessing the Accountability of the World Bank Group, INT’L STUDIES ASS’N, March
2008, at 253, available at http://www.allacademic.com//meta/p_mla_apa_research_citation/
2/5/3/5/1/pages253519/p253519-1.php (last visited Feb. 22, 2011).
24. See, e.g., Abbott P. Usher, Economic History—The Decline of Laissez Faire, 22 AM.
ECON. REV., no. 1, 1931, at supp. 3–10. See also Don Mayer, Community, Business Ethics, and Global
Capitalism, 38 AM. BUS. L.J. 215, 246–47 (2001).
25. Edward John Ray, The Political Economy of International Trade Law and Policy:
Changing Patterns of Protectionism: The Fall in Tariffs and the Rise in Non-Tariff Barriers, 8 NW. J.
INT’L L. & BUS. 285, 291 (1987). See generally Giovanni Arrighi, 2 THE GLOBAL MARKET JOURNAL
OF WORLD-SYSTEMS RESEARCH, 217–51 (1999), available at http://jwsr.ucr.edu/archive/vol5/number2/
v5n2_split/jwsr_v5n2_arrighi.pdf (last visited Feb. 23, 2011).
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safety nets for their people.26 Protectionist trade policies limited the ability
of multinational corporations (MNCs) to penetrate foreign markets.27
After World War II and the triumph of U.S. power, global security and
financial institutions were created under its leadership.28 A free trade
regime was established under the General Agreement on Tariffs and Trade
(GATT)29 that steadily eroded protectionist policies and expanded the reach
of western-based corporations. In the 1980s, the Reagan, Thatcher, and
Kohl administrations implemented policies of “neo-liberalism:”
deregulation proceeded with abandon at home, accompanied by the
imposition of the “Washington Consensus”30 upon debtor nations abroad.
This consolidated the trend of liberalization of the global economy, the
relaxation or removal of local government controls over international flows
of goods, services, technology and capital, and the privatization of former
state functions. Advancements in transportation and communication, like
those that sparked the post-Industrial Revolution expansion, coinciding
with the opening of new markets in China and Eastern Europe, triggered
another globalization.31
26.
Ray, supra note 25, at 291–92.
27.
Id.
28. See generally Robert L. Kuttner, Development, Globalization, and Law, 26 MICH J. INT’L
L. 19 (2004). See also John W. Head, Developing the IMF, the World Bank and the Regional
Development Banks: The Future of Law and Policy in Global Financial Institutions: The Changing
Role of Law in the IMF and the Multilateral Development Banks, 17 KAN. J. L. & PUB. POL’Y 194, 198
(2007).
29. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, T.I.A.S. 1700, 55
U.N.T.S. 194. The GATT was negotiated during the United Nations Conference on Trade and
Employment and operated between 1948 and 1994, prior to the creation of the World Trade
Organization in 1995. See Marrakesh Agreement Establishing the World Trade Organization, Apr. 15,
1994, 1867 U.N.T.S. 154. The WTO expanded the scope of trade liberalization from goods to trade
within the service sector and intellectual property rights. See generally General Agreement on Trade
Services, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B,
Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1167 (1994); Agreement on TradeRelated Aspects on Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the
World Trade Organization, Annex 1C, Legal Instruments—Results of the Uruguay Round, vol. 31, 33
I.L.M. 81 (1994).
30. The “Washington Consensus” is a neoliberal approach to poverty and development that
promoted the implementation of market-friendly regulatory reforms to counter “protectionism,
government control of investment, and state monopolies in key sectors.” Such reforms “replaced state
intervention in markets with private incentives, public ownership with private ownership, and protection
of domestic industries with competition from foreign producers and investors.” See, e.g., World Bank
Development Report, WORLD BANK 61–62 (2000), available at http://www.worldbank.org/poverty/
wdrpoverty/report/Index.htm (last visited Feb. 23, 2011).
31. The United Nations Committee on Economic, Social and Cultural Rights defines
globalization as:
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By the late 1990s, it was widely recognized that globalization
diminished the authority and control of the territorial state over economic
activities by its nationals conducted within its borders.32 Once again private
corporations were at the forefront of an expansion of the global economy, 33
while states played supporting roles.34 This time global business enterprises
also have at their disposal the resources of a network of powerful
multilateral institutions such as the United Nations (UN), the Bretton
Woods Institutions, the World Trade Organization, a plethora of Bilateral
Investment Treaties (BITs), and regionally-based Free Trade Agreements
(FTAs).
Wielding this enormous wealth, power, and institutional support,
MNCs are able to deploy a variety of strategies to avoid accountability
when their activities cause harm to individuals, groups or their
[c]losely associated with a variety of specific trends and policies including
increasing reliance on the free market, a significant growth in the influence of
international financial markets and institutions in determining the viability of
national policy priorities, a diminution in the role of the state and the size of its
budget, the privatization of various functions previously considered to be the
exclusive domain of the state, the deregulation of a range of activities with a view
to facilitating investment and rewarding individual initiative, and a corresponding
increase in the role and even responsibilities attributed to private actors, both in
the corporate sector, in particular to the transnational corporations, and in civil
society.
Comm. on Economic, Social and Cultural Rights, Rep. on its 18th Sess., Globalization and the
Enjoyment of Economic, Social and Cultural Rights, ¶ 2, U.N. Doc. E/1999/22 (May 11, 1998).
32. See, e.g., SUSAN STRANGE, THE RETREAT OF THE STATE: THE DIFFUSION OF POWER IN
WORLD ECONOMY (Cambridge Univ. Press 1996); THE EMERGENCE OF PRIVATE AUTHORITY IN
GLOBAL GOVERNANCE 3 (Thomas J. Biersterjer & Rodney Bruce Hall eds., Cambridge Univ. Press
2002).
THE
33. Many global corporations have evolved into titans with economies rivaling those of small
countries. Of the largest economies in the world, more than half are corporations. For example, in 2000
Exxon-Mobil’s gross sales were $210.3 billion while Indonesia’s GDP was $153 million. See Frank R.
Lopez, Corporate Social Responsibility In a Global Economy After September 11: Profits, Freedom,
and Human Rights, 55 MERCER L. REV. 739, 739–40 (2004). Global corporations play a significant
role in shaping the world economy and, arguably, the political landscape. The size of corporations,
measured by sales and the number of employees, is staggering. For example, Wal-Mart’s workforce has
grown from 62,000 employees in 1983 to 1,140,000 in 1999. Id. In terms of sales, it is now the largest
company in the world. Comparing GDP and sales, General Motors is now bigger than Denmark, WalMart is bigger than Poland, and Exxon-Mobil is bigger than South Africa.
34. One way in which states can support impunity is by creating secrecy havens for
corporations registered in their jurisdictions. A secrecy haven can pose a barrier to accountability by
cloaking the identity of the shareholders or personnel of a corporation registered in its jurisdiction, or
otherwise withholding information relevant to a potential liability finding in another state. See, e.g.,
Robin F. Hansen, Multinational Enterprise Pursuit of Minimized Liability: Law, International Business
Theory and the Prestige Oil Spill, 26 BERKELEY J. INT’L L. 410, 424–25 (2008).
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environments.35 Like the chartered companies of the past, today’s MNCs
exercise quasi-sovereign authority, like the ability to arbitrate on equal
footing with states.36 They are enabled through state law and multilateral
institutions to exploit and injure not only the peoples of poor countries, but
those of the most powerful states as well. 37
III. NEW/OLD PARADIGMS OF EXPLOITATION AND IMPUNITY
In their dogged quest for profit, MNCs target the most vulnerable
people and spaces. This section identifies three contemporary patterns of
corporate conduct that illustrate the complicity of MNCs and international
organizations: uranium mining in Africa, international arbitration, and the
international plan for post-earthquake Haiti.
The extractive industries are among the most notorious violators of
rights, historically known for violent population displacement;38 murders;39
35. See generally Sarah Anderson, Manuel Perez-Rocha & Rebecca Dreyfus, Mining for
Profits in International Tribunals: How Corporations Use Trade and Investment Treaties as Powerful
Tools in Disputes Over Oil, Mining, and Gas, Institute for Policy Studies Report 7 (2010), available at
http://www.ips-dc.org/reports/mining_for_profits_in_international_tribunals (last visited Feb. 23, 2011).
36.
See infra notes 52–56 and accompanying text.
37. For example ASARCO, a multinational corporation responsible for severe environmental
damages due to its smeltering operations in El Paso, Texas, filed for bankruptcy in 2005. The $1.79
billion settlement to cover the costs of environmental monitoring and cleanup and limited compensation
to certain employees “represents less than one percent of the funds originally identified as needed by
claimants.” See Mara Kardas-Nelson, Lin Nelson & Anne Fischel, Bankruptcy as Corporate Makeover:
ASARCO Demonstrates How to Evade Environmental Responsibility, DOLLARS AND SENSE MAG.,
May/June 2010, available at http://www.dollarsandsense.org/archives/2010/0510kardas-nelson-nelsonfischel.html (last visited Feb. 23, 2011). See also Special Investigations Unit: Broken Government—
Scorched Earth, Aired Mar. 8, 2008 (CNN television broadcast, Mar. 8, 2008), available at
http://edition.cnn.com/TRANSCRIPTS/0803/08/se.01.html (last visited Feb. 25, 2011).
38. See, e.g., Theodore Downing, Avoiding New Poverty: Mining-Induced Displacement and
Resettlement, INT’L INST. FOR ENV’T AND DEV. AND WORLD BUS. COUNS. FOR SUSTAINABLE DEV.
(2002).
39. For example, Drummond, a U.S. based mining company, has been accused of conspiring
to murder three trade union activists in Colombia. See Anastasia Moloney, U.S. Mining Group Faces
Trial Over Dead Activists, FIN. TIMES, July 8, 2007. See also Wiwa v. Royal Dutch Petroleum, 392
F.3d 812 (2004), a lawsuit brought against Royal Dutch/Shell, the head of its Nigerian operation, and
Royal Dutch/Shell’s Nigerian subsidiary, charging them with complicity in human rights abuses against
the Ogoni people in Nigeria. The suit alleges that the company and its subsidiary colluded with the
Nigerian government to instigate the arrest and execution of a group of activists that were hanged in
November, 1995 after a trial before a special military tribunal which was based on fabricated charges.
See also Osita Nnamani Ogbu, Combating Corruption in Nigeria: A Critical Appraisal of the Laws,
Institutions, and the Political Will, 14 ANN. SURV. INT’L & COMP. L. 99 (2008).
2011]
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329
environmental degradation;40 destruction of agricultural lands, subsistence
economies, and marine ecosystems;41 and desecration of sacred religious
sites.42 These extremely resource-intensive industries are inherently
unsustainable. Climate change will exacerbate the destructive impact of
these industries, threatening the very survival of many people, particularly
indigenous communities.
Ironically, climate change is being used as an excuse to accelerate
uranium mining, one of the most dangerous operations. Data presented
before the UN Department of Economic and Social Affairs, for example,
showed that many foreign corporations have gone to great lengths to
establish uranium mining operations in vulnerable African countries such as
Namibia, Tanzania, Niger, and Malawi. These corporations are creating
significant economic, environmental, and health problems in fragile areas.43
It is no coincidence that companies are targeting countries in Africa—the
site of the notorious nineteenth century scramble in which mining
companies took the lead in colonial conquest44—to exploit weak regulatory
regimes and monitoring capacity.45
In Namibia, for example, uranium mining extracts huge amounts of
water from the underground aquifers, destroying the means of subsistence
of the Nama people. In Tanzania, open-cast uranium mining threatens to
destroy the traditional lands of the Wasandawi people, who live as hunter-
40. United Nations Conference on Trade and Development, Apr. 20–25, 2008, World
Investment Report 2007: Transnational Corporations, Extractive Industries and Development, at 147,
U.N. Doc. UNCTAD/WIR/2008 (Apr. 24, 2008).
41. For example in the Niger Delta, Shell Oil operations have rendered useless rich
agricultural lands and fishing resources.
42. See, e.g., Indigenous Environmental Network, and International Indian Treaty Council et
al., Submission to the United Nations Universal Periodic Review on the United States of America, Ninth
Session of the Working Group on the UPR, Human Rights Council (Nov. 1–12, 2010), available at
http://lib.ohchr.org/HRBodies/UPR/Documents/session9/US/USHRN_UPR_USA_S09_2010_Annex25
_Indigenous%20Peoples%20Rights.pdf (last visited Feb. 25, 2011).
43. For details see U.N. Dept. of Econ. and Soc. Aff. Comm. on Sustainable Dev., Mining and
Sustainable Development, Rep. on its 18th Sess. (May 6, 2010) (presented by Victoria Tauli-Corpuz),
available at http://www.un.org/esa/dsd/resources/res_statprescsd_18_6may.shtml (last visited Feb. 23,
2011) [hereinafter Mining and Sustainable Development].
44. See, e.g., CAROLYN A. BROWN, WE WERE ALL SLAVES: AFRICAN MINERS, CULTURE AND
RESISTANCE AT THE ENUGU GOVERNMENT COLLIERY (2003); RAYMOND E. DUMETT, EL DORADO IN
WEST AFRICA: THE GOLD MINING FRONTIER, AFRICAN LABOR AND COLONIAL CAPITALISM IN THE
GOLD COAST, 1875–1900 (1998); JOHN J. STEPHENS, FUELLING THE EMPIRE: SOUTH AFRICA’S GOLD
AND THE ROAD TO WAR (2003).
45.
Id.
330
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gatherers in the central part of the country.46 In Niger, uranium mining has
already contaminated the groundwater,47 and fossil water aquifers—nonrenewable resources—have been depleted. AREVA, a French mining
company, announced officially that its planned new mine in Mali will have
depleted the local fossil water aquifer about the same time that the uranium
deposit will be exhausted—leaving local Touareg people with nothing to
survive on.48 In Malawi, a newly opened Australian-owned mine has
already claimed the lives of two workers; the mine and its tailings pose a
serious threat to Lake Malawi, which is a critical freshwater resource on
which some three million people depend.49 The government of Malawi
acknowledged that it does not have the capacity to monitor the mine.50
These activities have been aggressively encouraged by the World
Bank. According to a 2003 Report commissioned by the Bank:
Since the 1980s [the onset of globalization] the World Bank
Group . . . has actively promoted private-sector development in
extractive industries in developing countries by reforming mining
codes, privatizing state-owned enterprises, and improving market
prices by removing subsidies for extractive resources. Attracted
by these incentives, foreign private oil, gas, and mining
investment poured into developing countries in significant
51
amounts.
46. African Uranium Alliance, Two Statements to UN CSD on Indigenous People & Uranium,
MINES & COMMUNITIES (May 29, 2010), http://www.minesandcommunities.org/article.php?a=10138
(last visited Mar. 26, 2011) [hereinafter African Uranium Alliance].
47. Id.; The level of uranium in the drinking water is approximately 10 to 110 times higher
than the WHO standard. World Hunger Org., Uranium in Drinking-Water: Background Document for
Development of WHO Guidelines for Drinking-Water Quality, at 2 (2010), available at
http://www.who.int/entity/water_sanitation_health/dwq/chemicals/uranium290605.pdf (last visited Feb.
23, 2011). See also Left in the Dust: AREVA’s Radioactive Legacy in the Desert Towns of Niger,
GREENPEACE, http://www.greenpeace.org/international/Global/international/publications/nuclear/2010/
AREVA_Niger_report.pdf (last visited Feb. 25, 2011).
48. Mining and Sustainable Development, supra note 43. See also African Uranium Alliance,
supra note 46.
supra note 46.
supra note 46.
51. Striking a Better Balance, The World Bank Group and Extractive Industries Vol. I,
EXTRACTIVE INDUSTRIES REV., at iv (2003). The Report adds: “The WBG has encouraged broader
opportunities for development of these mineral endowments by promoting structural reform programs
for the reorientation of governing regimes, improved title registries, and broader guarantees for
investors, as well as by providing support for individual projects.” Id. at 7–8.
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Woods
331
New multilateral institutions like the International Center for the
Settlement of Investment Disputes (ICSID)52—another product of the
World Bank—are similarly reminiscent of old colonial mechanisms like
capitulations, or consular jurisdiction, whereby Asian and African
governments were divested of jurisdiction over European residents.53 The
recent surge in the formation of arbitration tribunals similarly strips host
states of jurisdiction over disputes involving foreign investors.54
Forced to compete for increased foreign investment, developing
countries enter into BITs wherein they agree to settle disputes with foreign
investors through binding arbitration in ICSID and other international
tribunals.55 MNCs have even accessed these tribunals by changing
nationality.56
In addition to the humiliating infringement on national sovereignty, the
economic consequences can be staggering for small countries. For
example, in March 2010, an arbitration panel at the UN Commission on
International Trade Law (UNCITRAL) ruled in favor of Chevron in an
arbitration proceeding under the U.S.-Ecuador BIT. Ecuadorean plaintiffs
had sued Chevron for environmental damage caused by its oil drilling
operations. The panel found in part that a domestic court in Ecuador caused
52. Convention on the Settlement of Investment Disputes Between States and Nationals of
Other States, Mar. 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159 [hereinafter ICSID Convention]. The
ICSID Convention is a multilateral treaty formulated by the World Bank to facilitate arbitration of
international investment disputes, thus promoting international private investment.
53. See CHARLES HENRY ALEXANDROWICZ, THE EUROPEAN-AFRICAN CONFRONTATION: A
STUDY IN TREATY MAKING 83–91 (1973).
54. See generally Teemu Ruskola, Colonialism Without Colonies: On the Extraterritorial
Jurisprudence of the U.S. Court for China, 71 LAW & CONTEMP. PROBS. 217, 221 (2008).
55. See Sarah Anderson & Sara Grusky, Challenging Corporate Investor Rule, INST. FOR
POL’Y
STUDIES
2
(Apr.
2007),
available
at
www.ips-dc.org/reports/070430challengingcorporateinvestorrule.pdf (last visited Feb. 25, 2011). “Through an explosion of multilateral
and bilateral trade and investment agreements, global firms have acquired new protections against
government acts that might reduce their profits. And to enforce these new privileges, they can turn to an
arbitration body connected to the World Bank, the International Centre for the Settlement of Investment
Disputes, and other similar international tribunals.” Id.
56. See, e.g., Pacific Rim Cayman, LLC v. El Salvador, ICSID Case No. ARB/09/12, Pending
(June 15, 2009). In this case, Canadian mining company Pacific Rim is suing El Salvador under the
CAFTA agreement for $100 million. The company alleges that El Salvador improperly denied
environmental permits for its exploration projects, rendering its investment in El Salvador worthless.
Because Canada is not a party to the CAFTA agreement, Pacific Rim formed a U.S. subsidiary company
in Nevada to access CAFTA’s investor-state dispute settlement. See Mining and Sustainable
Development, supra note 43, at 7.
332
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“unreasonable delays” in resolving the suits, and awarded the company
$700 million plus interest, taxes, and costs. 57
In addition to the damaging competition among poor states,
globalization has created a “race to the bottom” in which workers in
different countries must compete by accepting lower and lower wages. The
recent disaster in Haiti demonstrates a trend toward the complicity of
multilateral institutions in the exploitation of such natural disasters—which
are likely to increase due to climate change—to enable MNCs to maximize
profits with no regard for victims, the natural environment, or future
generations.58
According to the Oxford University economist who fashioned the plan
for Haiti’s post-earthquake economy, Haiti’s minimum wage of about $3.00
a day makes it “fully competitive with China.”59 However, the plan was
actually conceived in January 2009, more than a year before the disaster.60
The highlight of the plan is the establishment of garment industry free trade
zones, supported by a $20 million World Bank loan containing no
contractual commitments to workers’ rights.61
With virtually no public education system, inadequate health care,
housing, and basic infrastructure—even before the earthquake—it seems
counterintuitive to propose moving Haiti from a largely agrarian society to
large-scale manufacturing.62 Yet, within days of the January 12 earthquake
that devastated much of southern Haiti, the disaster was being used to
promote a UN plan for drastically expanding the country’s garment
assembly industry, which employs low-paid workers to stitch apparel for
duty-free export63 to U.S. and Canadian markets. Meanwhile, the UN
57.
Mining and Sustainable Development, supra note 43.
58. John R. Wilke & Brody Mullins, After Katrina, Republicans Back a Sea of Conservative
Ideas, WALL ST. J., Sept. 15, 2005, at B1.
59. See David L. Wilson, Rebuilding Haiti—the Sweatshop Hoax, MONTHLY REV., Apr. 4,
2010, available at http://mrzine.monthlyreview.org/2010/wilson040310.html (last visited Feb. 25,
2011).
60.
Id.
61. See Rick Cohen, Rebuilding with Haiti’s Troubled Garment Industry, NONPROFIT Q., Oct.
19, 2010, available at http://www.nonprofitquarterly.org/index.php?option=com_content&view=
article&id=6556:rebuilding-with-haitis-troubled-garment-industry&catid=155:nonprofitnewswire&Itemid=986 (last visited Feb. 25, 2011).
62.
Id.
63. See Wilson, supra note 59. See also Nicholas D. Kristof, Some Frank Talk About Haiti,
N.Y. TIMES, Jan. 20, 2010, available at http://www.nytimes.com/2010/01/21/opinion/21kristof.html?_
r=2 (last visited Feb. 25, 2011); Paul Collier & Jean-Louis Warnholz, Building Haiti’s Economy One
Mango at a Time, N.Y. TIMES, Jan. 28, 2010, available at http://www.nytimes.com/2010/01/29/
opinion/29collier.html?pagewanted=print (last visited Feb . 25, 2011); Thinking About a New Haiti,
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Woods
333
stopped its Emergency Food Program after less than four months because it
decided it was time to provide “cash for work.” The main presence of the
UN appears to be as soldiers on patrol, pointing guns at people. They are
considered by many Haitians to be a foreign occupying army.
IV. CONCLUSION
Given the challenges of globalization, any attempt to employ a human
rights framework in an effort to impose corporate liability must entail the
following:
1.
2.
3.
Framing issues of corporate behavior, globalization, and
climate change in terms of the full panoply of human rights
guarantees: political and civil; economic, social, and
cultural; and third generation rights to a clean and safe
64
environment, development; and peace;
Prioritizing the rights of the historically oppressed,
marginalized, and most vulnerable people, including racial,
ethnic, religious, and other minority groups, women and
indigenous peoples;
Elevating self-determination, the first norm specified in the
65
two foundational human rights Covenants.
This entails
emphasizing strategies of participation and empowerment,
strategies that support mobilizing efforts at the grassroots
level; this would include fighting for the recognition of the
right of Indigenous Peoples to require their free, prior
informed consent before states and corporations can operate
on their lands;
N.Y. TIMES, Feb. 1, 2010, available at http://www.nytimes.com/2010/02/01/opinion/
01mon1.html?pagewanted=print (last visited Feb. 25, 2011).
64. According to the Vienna Declaration and Programme of Action, “All human rights are
universal, indivisible and interdependent and interrelated. The international community must treat
human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”
Vienna Declaration and Programme of Action, A/CONF.157/24 (Part I) chap. III, adopted by the World
Conference on Human Rights, Vienna, June 25, 1993.
65. The right to self-determination is the collective right of peoples to “freely determine their
political status and freely pursue their economic, social and political development.” This right is
codified in Articles 1(2) and 55 of the United Nations Charter, as well as in the first article of both major
human rights covenants, the International Covenant on Civil and Political Rights and the International
Covenant on economic, social and cultural Rights. This rule has been reaffirmed by the UN Security
Council in resolutions concerning the former Rhodesia, S.C. Res. 183 (1963); Namibia, S.C. Res. 301
(1971); and Western Sahara. S.C. Res. 377 (1975). The Advisory Opinion of the International Court of
Justice relating to the Western Sahara confirmed the validity of the principle in the context of
international law. 1975 I.C.J. Rep. 3, 31–33 (Oct. 1975). This right is codified in Articles 1(2) and 55
of the United Nations Charter, as well as in the first article of both major human rights covenants.
334
4.
5.
6.
[Vol. 17:2
Fighting for the democratization, transparency and
accountability of international economic institutions;
Advocacy for enforceable legal norms of corporate
responsibility at both the national and international levels;
and
Credible independent monitoring of corporate conformity
66
with voluntary codes of conduct.
In this writer’s view, such a comprehensive approach is the only way
that a structurally weak normative and institutional framework can have any
success in actually improving the lives of people.
66. The adoption of non-binding standards has been embraced in light of the presumed
inability of treaty law to bind corporate non-state actors. Some scholars argue that a norm of “corporate
responsibility” is emerging, creating “global standards of action for companies.” See, e.g., Cynthia A.
Williams, Symposium: Oil and the International Law: The Geopolitical Significance of Petroleum
Corporations: Civil Society Initiatives and “Soft Law” in the Oil and Gas Industry, 36 N.Y.U. J. INT’L
L. & POL. 457, 461 (2004). Such standards would arguably give teeth to otherwise non-binding norms
as corporate activities are examined and evaluated by formal, uniform criteria. See James Thuo Gathii,
Good Governance as a Counter-Insurgency Agenda to Oppositional and Transformative Social Projects
in International Law, 5 BUFF. HUM. RTS. L. REV. 937, 934 (1999). Noteworthy, however, is the fact
that some of the most notorious violators of human rights such as Unocal, ChevronTexaco and Shell,
have adopted such codes and are as well signatories to many other initiatives. Moreover, non-binding
standards are conceptually problematic. Not only do they have the potential to deflect the demand for
mandatory, enforceable norms. More importantly, self-selected, self-defined and self-interested norms
could circumscribe the scope of human rights law applicable to corporate non-state actors. One recent
experience with voluntary codes of conduct illustrates this concern. The Sullivan Principles were
promoted as an alternative to the anti-apartheid movement’s demand for mandatory sanctions against
South Africa, and for disinvestment from multinational corporations doing business there. Not only
were the Sullivan Principles demonstrably unsuccessful in ameliorating the crimes of apartheid; the
normative impact of this approach was much more pernicious. The Principles sought to redefine the
South Africa question as one of racial discrimination simpliciter as opposed to a question of
decolonization and self-determination. Thus, the problem could be addressed by measures such as
desegregation of the workplace.
THE INTERNATIONAL COURT OF JUSTICE AND
THE QUESTION OF KOSOVO’S INDEPENDENCE
John Cerone*
I.
II.
III.
IV.
BACKGROUND TO THE OPINION ...................................................... 336
A. Background ............................................................................. 336
1. Historical Background..................................................... 336
2. The United Nations Interim Administration Mission in
Kosovo (UNMIK) ........................................................... 337
3. Redistribution of the Population ..................................... 338
4. Establishment and Revision of the Applicable Law ....... 338
5. Transfer of Authority to the PISG and the Declaration
of Independence .............................................................. 341
B. The General Assembly Request for an Advisory Opinion ....... 341
C. The UK Letter and the “Authors” of the Declaration ............ 342
SURVEY OF POTENTIALLY RELEVANT RULES OF INTERNATIONAL
LAW ................................................................................................. 343
A. Secession under International Law, In General...................... 344
B. As Applied to Kosovo .............................................................. 345
C. The Lex Specialis of Resolution 1244 ..................................... 347
D. The Competence of the PISG .................................................. 348
AN ANALYSIS OF THE ADVISORY OPINION ..................................... 349
A. General International Law...................................................... 350
B. Security Council Resolution 1244 and the Constitutional
Framework .............................................................................. 350
C. Recasting the Question ............................................................ 351
D. The Lotus Principle ................................................................. 352
CONCLUSION: THE PROPER ROLE OF THE COURT .......................... 353
If my mother were to stand in her living room and declare it to be an
independent state, she would have violated no rule of international law.
Even were she to broadcast that declaration to the world, it would still not
be unlawful. It would also not have any legal effect. This is, in essence, the
conclusion reached by the International Court of Justice (ICJ) in its very
narrow Advisory Opinion in Accordance with International Law of the
Unilateral Declaration of Independence in Respect of Kosovo. The Court
*
John Cerone is Professor of Law and Director of the Center for International Law &
Policy at New England Law | Boston. From 1999-2001, he served as a Human Rights Legal Advisor
with the OSCE pillar of the UN Mission in Kosovo (UNMIK). The author would like thank New
England Law | Boston and the Institute for Shipboard Education for their support.
336
[Vol. 17:2
simply found that the making of the declaration was not itself an act
contrary to international law.
The question originally posed to the Court raised a number of
significant issues and provided the Court an opportunity to bring clarity to
areas of international law that are fraught with ambiguity. While most
international lawyers had hoped that the Court would seize this opportunity
to elaborate upon the law pertaining to the creation and recognition of
states, particularly in a secession context, the political realities were such
that the Court’s restrictive approach was to be expected.1
The first section of this article sets forth the background to the
Opinion, including a brief history of the Kosovo conflict and an analysis of
the question posed by the General Assembly. The second section surveys
rules of international law potentially relevant to the question, and highlights
a number of legal issues that the Court could have clarified. The third
section examines the Court’s Opinion, setting forth the few noteworthy
legal findings, as well as an analysis of the Court’s reconstruction of the
General Assembly’s request for an advisory opinion. The article concludes
with observations about the proper role of the Court, and whether the Court
abdicated its responsibilities in this instance.
I. BACKGROUND TO THE OPINION
A. Background
1. Historical Background
For centuries, Kosovo has been occupied by both ethnic Albanians and
ethnic Serbs, as well as a number of other ethnic minorities. Since the end
of World War II, Kosovo was a province of the Republic of Serbia, one of
the six constituent republics of what had been the Socialist Federal
Republic of Yugoslavia. Under the 1974 Yugoslav Constitution, Kosovo
had been granted a high degree of autonomy within the Republic of Serbia.
Under this system, Kosovo had its own legal codes.
Amid claims of anti-Serb discrimination in the late 1980s, Belgrade
revoked Kosovo’s autonomy in 1989. This led to an increase in tensions
and allegations of widespread discrimination against Kosovo Albanians.
The situation came to a boil amidst the disintegration of the former
Yugoslavia in the mid-1990s.
By 1998, armed conflict had broken out between Belgrade’s forces
and the Kosovo Liberation Army, the independence-seeking non-state
armed group that purported to act on behalf of Kosovo’s majority ethnic1.
See generally John Cerone, The Legality and Legal Effect of Kosovo’s Purported
Secession and Ensuing Acts of Recognition, 3 BELGRADE L. REV. 60 (2008).
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Cerone
337
Albanian population. The severity of Belgrade’s crackdown soon gave rise
to reports alleging the commission of serious violations of international
human rights and humanitarian law perpetrated primarily by Serbian forces.
The United Nations Security Council, seized of the situation there, adopted
Chapter VII resolutions demanding a cessation of hostilities, calling for
investigations of abuses, and demanding that steps be taken toward a
political solution.
Unsatisfied with Belgrade’s level of compliance with these demands,
and despite the Security Council’s failure to expressly authorize the use of
force, U.S.-led NATO forces launched a military intervention to compel
Belgrade to withdraw from Kosovo. By early June 1999, Belgrade was
prepared to agree to a set of “principles on a political solution to the
Kosovo crisis.” On June 10, 1999, the Security Council, acting under
Chapter VII of the Charter, adopted Resolution 1244, which authorized the
establishment and deployment of the UN Interim Administration Mission in
Kosovo (UNMIK) and the NATO-led Kosovo Force.2
2. The United Nations Interim Administration Mission in Kosovo
(UNMIK)
UNMIK was mandated to provide “an interim administration for
Kosovo under which the people of Kosovo can enjoy substantial autonomy
within the Federal Republic of Yugoslavia.”3 All executive and legislative
powers were vested in UNMIK,4 which was led by the Special
Representative of the Secretary General (SRSG).
The resolution also mandated UNMIK to organize and oversee “the
development of provisional institutions for democratic and autonomous
self-government pending a political settlement,” to transfer its
administrative responsibilities to these institutions as they were established,
to facilitate a political process “designed to determine Kosovo’s future
status,” and, “in a final stage,” to oversee the “transfer of authority from
Kosovo’s provisional institutions to institutions established under a political
settlement.”5
2.
S.C. Res. 1244, U.N. Doc. S/RES/1244 (June 10, 1999) [hereinafter Resolution 1244].
3.
Id. ¶ 10.
4.
The Secretary-General, Report of the Secretary-General on the United Nations Interim
Administration Mission in Kosovo, ¶ 35, U.N. Doc. S/1999/779 (July 12, 1999) (“The Security Council,
in its resolution 1244 (1999), has vested in the interim civil administration authority over the territory
and people of Kosovo. All legislative and executive powers, including the administration of the
judiciary, will, therefore, be vested in UNMIK.”) [hereinafter Report of the Secretary-General].
5.
Resolution 1244, supra note 2, ¶ 11.
338
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An unusual feature of UNMIK’s mandate is that it is self-renewing. In
paragraph 19 of Resolution 1244, the Security Council “decides that the
international civil and security presences are established for an initial period
of twelve months, to continue thereafter unless the Security Council decides
otherwise.”6 This feature was presumably included due to uncertainties
about the continued willingness of Russia, one of Belgrade’s historical
allies, to support the Mission.7
3. Redistribution of the Population
With the withdrawal of Serbian and Yugoslav forces after the
bombing, Kosovo Serbs were expelled from the majority of the province’s
territory. While most fled to Serbia proper, a substantial number fled to
northern Kosovo, which already had a majority Serb population.
It soon became clear that the Kosovo Albanian population, a majority
in Kosovo as a whole, and the overwhelming majority throughout most of
the territory following the expulsion of Kosovo Serbs, would accept
nothing short of independence. Kosovo Albanian leaders strongly resisted
any notion that Kosovo remained under the sovereignty of the then Federal
Republic of Yugoslavia. Pressure from the Kosovo Albanian community,
as well as a perception on the part of some UNMIK officials that the exodus
of Kosovo Serbs was a fait accompli, led UNMIK to reverse course on a
number of occasions. An early example of this was the establishment and
revision of the applicable law.
4. Establishment and Revision of the Applicable Law
Following the withdrawal of the Serbian and Yugoslav forces, Kosovo
was left in a law-and-order vacuum. Among the first acts of the SRSG in
the summer of 1999 was the establishment of the law applicable in Kosovo.
While the extent to which the SRSG was mandated to fashion the
applicable law was initially unclear,8 the SRSG ultimately replaced the
6.
Id. ¶ 19. Extending the mandate of a peacekeeping mission usually requires an affirmative
vote of the Security Council.
7.
Mission.
This is somewhat ironic as it is Russia that has refused to vote in favor of terminating the
8.
It seemed from the initial Report of the Secretary-General that UNMIK would only be
empowered to change the applicable law to the extent necessary to comply with human rights law or to
otherwise carry out its mandate. See Report of the Secretary-General, supra note 4, ¶ 36 (“In
implementing its mandate in the territory of Kosovo, UNMIK will respect the laws of the Federal
Republic of Yugoslavia and of the Republic of Serbia insofar as they do not conflict with internationally
recognized human rights standards or with regulations issued by the Special Representative in the
fulfilment of the mandate given to the United Nations by the Security Council.”); Id. ¶ 39 (“[The SRSG]
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Cerone
339
applicable law entirely. In accordance with his mandate,9 the SRSG set
forth the applicable law in UNMIK Regulation 1999/1, which stated:
The laws applicable in the territory of Kosovo prior to 24 March
1999 shall continue to apply in Kosovo insofar as they do not
conflict with standards referred to in section 2, the fulfilment of
the mandate given to UNMIK under United Nations Security
Council resolution 1244 (1999), or the present or any other
10
regulation issued by UNMIK.
Thus, the applicable law included the Yugoslav, Serbian, and local law
applicable on March 23, 1999—the day before the NATO air campaign
began.
Promulgation of Regulation 1999/1 was met with widespread protest
among significant segments of the Kosovo Albanian population who
wanted the applicable law to include the Kosovo legislation that was in
force prior to the revocation of Kosovo’s autonomy in 1989 (and to exclude
the application of Serbian law). Local legal experts, recruited by UNMIK
to train law enforcement personnel, refused to train in Serbian law. Several
newly appointed Kosovo Albanian judges refused to apply Serbian law, and
applied instead the Kosovo Penal Code,11 which had not been valid law
since 1989. A number of Kosovo Albanian judges threatened to resign.
In Mitrovica, interim Kosovo Serb judges who had been appointed to
serve on the District Court resigned over alleged bias in the courts, citing
instances of discrimination against Kosovo Serb defendants as well as the
unlawful application of the Kosovo Penal Code. UNMIK immediately
initiated negotiations in an effort to re-establish a multi-ethnic judiciary in
Mitrovica. Bowing to mounting pressure from the majority Kosovo
Albanian community, the SRSG revised the applicable law in Regulation
will be empowered to regulate within the areas of his responsibilities laid down by the Security Council
in its resolution 1244 (1999). In doing so, he may change, repeal or suspend existing laws to the extent
necessary for the carrying out of his functions, or where existing laws are incompatible with the
mandate, aims and purposes of the interim civil administration.”); Id. ¶ 75 (“UNMIK will initiate a
process to amend current legislation in Kosovo, as necessary, including criminal laws, the law on
internal affairs and the law on public peace and order, in a way consistent with the objectives of Security
Council resolution 1244 (1999) and internationally recognized human rights standards.”) (emphasis
added).
9.
See generally Report of the Secretary-General, supra note 4.
10. UNMIK Reg. 1999/1, § 3, U.N. Doc. UNMIK/REG/1999/1 (July 25, 1999) [hereinafter
Regulation 1999/1].
11.
At the time, the local courts were dealing only with criminal cases.
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1999/24.12 The new applicable law took as its starting point13 the law in
force on March 22, 1989—a date prior to the revocation of Kosovo’s
autonomy and a time when Kosovo was still largely regulated under
Kosovan legislation.14 However, UNMIK Regulations remained supreme.
In order to retroactively validate otherwise unlawful convictions under the
Kosovo Penal Code, the new Regulation 1999/24, which was promulgated
on December 12, 1999, was to be deemed to have entered into force as of
June 10, 1999.15
This reversal in the applicable law was seen by the Kosovo Albanian
community as a substantial victory in their quest for independence, and
conversely as a defeat for Kosovo Serbs who largely viewed it as
confirmation of their belief that the purpose behind the bombing and
establishment of UNMIK was to hand control of Kosovo to the Kosovo
Albanian population (as opposed to simply putting an end to the gross
violations of international law being perpetrated against Kosovo
Albanians). After this, the previously ongoing negotiations to re-establish a
multi-ethnic judiciary in Mitrovica collapsed.
12. UNMIK Reg. 1999/24, U.N. Doc. UNMIK/REG/1999/24 (Dec. 12, 1999) [hereinafter
Regulation 1999/24]. Regulation 1999/24 had been presented by some actors within UNMIK as a mere
clarification, as opposed to a revision, of the applicable law. Weighing against the assertion that
Regulation 1999/24 is merely a clarification of Regulation 1999/1 are the facts that the latter is expressly
repealed by Regulation 1999/25 and that Section 4 of Regulation 1999/24 purports to validate judicial
decisions made pursuant to Regulation 1999/1, both implying that Regulation 1999/24 provides for a
different applicable law than that set forth in Regulation 1999/1.
13. Regulation 1999/24 further provided: “If a court of competent jurisdiction or a body or
person required to implement a provision of the law, determines that a subject matter or situation is not
covered by the laws set out in section 1.1 of the present regulation but is covered by another law in force
in Kosovo after 22 March 1989 which is not discriminatory and which complies with section 1.3 of the
present regulation, the court, body or person shall, as an exception, apply that law.” Regulation
1999/24, supra note 12, § 1.2. Thus, where a gap in the law was filled by a later-applicable provision of
Yugoslav or Serbian law that complied with human rights standards, that later applicable provision
would be applied. However, as the distinction between a gap-filler and an amendment is not always
clear, the implementation of this provision produced its own complications.
14. Although the law in force on March 22, 1989 included Yugoslav and Serbian law, much of
what in 1999 was regulated by Serbian law was in 1989 still regulated by Kosovan law. Thus, the new
regulation replaced much of the previously applicable (under Regulation 1999/1) Serbian law with
Kosovan law.
15. Regulation 1999/24 also included a savings provision, which attempted to maintain the
validity of legal acts taken pursuant to the originally established applicable law. Regulation 1999/24,
supra note 12, § 4 (“All legal acts, including judicial decisions, and the legal effects of events which
occurred, during the period from 10 June 1999 up to the date of the present regulation, pursuant to the
laws in force during that period under section 3 of UNMIK Regulation No. 1999/1 of 25 July 1999, shall
remain valid, insofar as they do not conflict with the standards referred to in section 1 of the present
regulation or any UNMIK regulation in force at the time of such acts.”).
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5. Transfer of Authority to the PISG and the Declaration of Independence
Over the course of the next decade, public authority in Kosovo was
gradually transferred from UNMIK’s chief administrator, the Special
Representative of the Secretary General, to Kosovan authorities, which as
of February 2008, were called the Provisional Institutions of SelfGovernment (PISG). These institutions are primarily controlled by Kosovo
Albanians. As such, Kosovo Serbs largely resisted this transfer of
authority.
On February 17, 2008, these authorities, purporting to act on behalf of
the people of Kosovo, declared Kosovo to be an independent state. Since
that date, a number of states, though still a minority of states, have
recognized Kosovo as a new state.
B. The General Assembly Request for an Advisory Opinion
The General Assembly is one of the five UN bodies empowered to
request Advisory Opinions.16 A properly formulated request activates the
advisory jurisdiction of the ICJ. Even where its jurisdiction has been
properly activated, the Court is not obliged to give an opinion.17
Nonetheless, the Court has never failed to render an opinion once its
advisory jurisdiction has been properly invoked.
On October 8, 2008, after months of controversy over whether Kosovo
had successfully acceded to sovereignty as a result of the declaration of
independence, the General Assembly adopted Resolution 63/3, requesting
the ICJ to render an advisory opinion on the question: “Is the unilateral
declaration of independence by the Provisional Institutions of SelfGovernment (PISG) of Kosovo in accordance with international law?”18
This formulation of the question was amenable to a broad array of
interpretations. Indeed, it could have been interpreted to mean any or all of
the following:
16.
U.N. Charter art. 96, para. 1–2. Advisory Opinions are not legally binding.
17. Statute of the International Court of Justice, art. 65(1), June 26, 1945, 33 U.N.T.S. 933
(stating that the “Court may give an advisory opinion on any legal question at the request of whatever
body may be authorized by or in accordance with the Charter of the United Nations to make such a
request”) (emphasis added).
18. Request for an Advisory Opinion of the International Court of Justice on Whether the
Unilateral Declaration of Independence of Kosovo is in Accordance with International Law, GA Res.
63/3, UN GAOR, 63rd Sess., UN Doc. A/RES/63/3 (Oct. 8, 2008) [hereinafter Request for an Advisory
Opinion].
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1.
As of February 2008, did international law confer a right
upon the Provisional Institutions of Self-Government to
declare independence?
2. Did international law require the PISG to refrain from
declaring independence?
3. Did international law confer upon Kosovo (or the people
thereof) a right to secede?
4. Did international law require Kosovo to refrain from
seceding?
5. Were the PISG entitled to act for Kosovo on the
international level?
6. What was the legal effect of the purported secession? Was
it successful?
7. Were the ensuing acts of recognition authorized by
international law?
8. Were the ensuing acts of recognition prohibited by
international law?
9. What was the legal effect of these ensuing acts of
recognition?
10. Can the legal effect of these ensuing acts of recognition be
altered by subsequent acts of recognition?
Thus, as noted above, the question posed by the General Assembly
potentially raised a number of significant legal issues in some of the least
well-delineated fields of international law. Perhaps nowhere else in
international law is the border between the legal and the political as difficult
to discern as it is in the realm of the creation and recognition of states.
Read broadly, this request would also present the Court with an opportunity
to elaborate upon the well-established, but as yet sparsely defined,
principles of territorial integrity and self-determination.
C. The UK Letter and the “Authors” of the Declaration
The Permanent Representative of the United Kingdom of Great Britain
and Northern Ireland, in a letter to the President of the General Assembly,
addressed the issue of whether “Kosovo” should be permitted to take part in
the proceedings. The UK letter asserted that “if an advisory opinion is
requested, it would be appropriate for the resolution referring the matter to
the Court to signal that the General Assembly considers that fairness
dictates that Kosovo should be permitted to be represented in the
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proceedings and to present arguments in its own name.”19 The resolution
contains no such language.
This omission notwithstanding, the Court, in its order fixing timelimits for the submission of written statements, decided to invite the
“authors” of the declaration of independence to make written contributions
to the Court.20 In contrast to the UK position, the Court was careful to
avoid opining on the identity of the “authors,” the issue of whether the
“authors” are acting on behalf of Kosovo, or indeed whether Kosovo has
international legal personality.21
At this time, the title of the case, as reflected in the Court’s order, was
“Accordance with international law of the unilateral declaration of
independence by the Provisional Institutions of Self-Government of
Kosovo.”
II. SURVEY OF POTENTIALLY RELEVANT RULES OF INTERNATIONAL LAW
Read broadly, the Generally Assembly’s question could have entailed
consideration of the legality of Kosovo’s purported secession, the
competence of the PISG under international law, whether the attempted
secession was successful, whether ensuing acts of recognition were lawful,
and the legal effects of the acts of recognition.
Even more broadly, the question could have invited the Court to
consider the issue of the starting point of its inquiry. Rather than asking
whether the PISG had the right to secede, or whether the PISG were
prohibited from attempting to secede, the question asks whether the
declaration of independence was “in accordance with international law.”
This relatively neutral formulation of the question might have allowed the
19. Letter from the Permanent Representative of the United Kingdom of Great Britain and
Northern Ireland to the United Nations Addressed to the President of the General Assembly, U.N. Doc.
A/63/461 (Oct. 2, 2008) [hereinafter Letter from the Permanent Representative of the United Kingdom
of Great Britain].
20. Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Advisory Opinion, 2008 I.C.J. 409 (Oct. 17).
Granting capacity to make submissions to entities other than UN Member States and international
organizations is not unprecedented. In its 2003 Order in Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, the Court decided that, in light of the General Assembly
resolution requesting an opinion and the report of the Secretary-General transmitted to the Court with
the request, and “taking into account the fact that the General Assembly has granted Palestine a special
status of observer and that the latter is co-sponsor of the draft resolution requesting the advisory opinion,
Palestine may also submit to the Court a written statement.” Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2003 I.C.J. 428 (Dec. 19).
21. See generally Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, 2003 I.C.J. 428 (Dec. 19).
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Court to begin with an examination of whether the appropriate starting
point should be the principle of the freedom of states—the so-called Lotus
principle.22
On the other hand, as the UK letter points out,23 the formulation of the
question as adopted by the General Assembly is significantly narrower than
that initially set forth in Serbia’s request that this item be added to the
General Assembly’s agenda. The letter from the Permanent Representative
of Serbia formulated the issue as “whether the unilateral declaration of
independence of Kosovo is in accordance with international law.”24 The
ultimate formulation potentially narrows the question to the role of the
PISG. If the question was understood to be limited to the scope of authority
of the PISG, the Court could have chosen to limit its Opinion to this
narrower subject without opining on the broader issues noted above.
A. Secession under International Law, In General
International law has very little to say about the legality of secession.
This neutrality derives largely from the principle of non-intervention.
What then of the principle of territorial integrity? The traditional
understanding of this principle was that it operates to impose a duty on
states to refrain from acts that encroach upon another state’s territorial
sovereignty,25 which of course would include an obligation to refrain from
assisting separatist movements in their pursuit of secession. However, it
was unclear whether it binds these movements as such.
Thus, in general, the legally significant issue is the effect of the
attempted secession; i.e., whether a new state has come into existence.
In order for a new state to come into existence, it must meet the socalled Montevideo criteria: a) a permanent population; b) a defined
territory; c) government; and d) capacity to enter into relations with other
states.26 The latter two are generally understood to incorporate a
requirement of independence. The government criterion also entails a
requirement of control over the territory and its population.
The legality of recognition is analytically distinct from the question of
the legality of secession, though the two are interrelated. Recognition of
22.
See S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).
23. See Letter from the Permanent Representative of the United Kingdom of Great Britain,
supra note 19, at Annex ¶ 7.
24.
Request for an Advisory Opinion, supra note 18.
25. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986
I.C.J. 14, ¶ 251 (June 27).
26. Montevideo Convention on the Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097,
3100, 165 U.N.T.S. 21, 24.
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newly independent states is generally not unlawful, so long as that new
state has effectively established its independence in fact. However, it is
increasingly accepted that it is unlawful to recognize territorial sovereignty
acquired through a violation of the prohibition on the use of force, or
violation of another peremptory norm of international law.27 It would also
be unlawful for UN Member States to recognize a state where the Security
Council has decided, with reference to a particular situation, that states
must refrain from recognizing that state.28
B. As Applied to Kosovo
At first glance, Kosovo would seem to meet the Montevideo criteria.
However, the application of the criteria is complicated by the unique
circumstances in which Kosovo has evolved over the past decade. In
particular, closer scrutiny is warranted with regard to the claim that Kosovo
has an independent government in effective control. The necessary level of
control is context-dependent.
The current public authorities in Kosovo29 are operating as the de facto
government of Kosovo. They have achieved effective control of territory
and population (at least with respect to southern Kosovo). However, it may
also be argued that the control exercised has not been established by
independent Kosovan institutions, but has in fact been enabled, and
continues to be supported by, external forces, including the UN and NATO.
In this sense, it could be argued that the Kosovan authorities are not
themselves in effective control of the territory. Nonetheless, the purpose of
requiring a higher degree of control in the context of secession is generally
predicated on a competing degree of control exercised by the parent state.
In the Kosovo context, the control exercised by Kosovan institutions is to
the complete exclusion of control by the parent state. Seen from this
27. According to the Articles on State Responsibility, “[n]o State shall recognize as lawful a
situation created by a serious breach” by a State of an obligation arising under a peremptory norm of
general international law. Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83,
art. 41(2), U.N. GAOR, 56th Sess., 85th plen. mtg., U.N. Doc. A/RES/56/83 (Jan. 28, 2002) [hereinafter
Responsibility of States for Internationally Wrongful Acts]. In addition, commentators have speculated
that there is an emerging trend toward incorporation of a human rights dimension into the question of
the creation and recognition of states. In particular, some have asserted the existence of a soft law norm
requiring non-recognition in the face of massive human rights violations.
28. See, e.g., UN Security Council Resolution 216 concerning the situation in Southern
Rhodesia, S.C. Res. 216, U.N. Doc. S/RES/216 (Nov. 12, 1965).
29. As used in this article, the terms “public authorities in Kosovo” or “Kosovo public
authorities” are used simply to refer to the self-proclaimed government of Kosovo, and are not intended
to imply anything about their authority. These terms do not refer to the self-proclaimed Kosovo Serb
authorities in northern Kosovo or to any international presences in Kosovo.
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perspective, it would seem that that the test of effective control has been
met in the case of Kosovo.
A further point of inquiry, however, would be whether and to what
extent the external support afforded undermines the requirement of
independence or is itself an unlawful intervention. As the support afforded
has been authorized by a decision of the Security Council, such support is
lawful so long as the resolution is itself lawful. As to the question of
independence, reliance on foreign assistance, including military assistance,
would not necessarily, of itself, constrain the fulfillment of the Montevideo
criteria, at least where such assistance is provided lawfully.30
If Kosovo has indeed met the Montevideo criteria, the debate over
self-determination may be of no moment. The right of self-determination
attains legal significance only if it is necessary to establish a duty on states
to permit Kosovo’s secession.
If read broadly, the question posed to the Court could have entailed
discussion of the legality of acts of recognition. This would have enabled
the Court to consider whether there had been a violation of the prohibition
on the use of force that would give rise to an obligation on all states to
refrain from recognizing claims to sovereignty made pursuant to it. The
first question would be whether or not the 1999 NATO bombing constituted
a violation of the prohibition on the use of force. A further consideration
would then be whether an unlawful use of force by third parties could
preclude Kosovo from having its statehood recognized.31 In any event, it
was highly unlikely that the Court would examine these questions given
their political sensitivity and the possibility of interpreting the question
more narrowly.
The Court could also have taken this opportunity to shed some light on
the legal effect of recognition, and in particular on the extent to which
30. This may be a basis of distinction with respect to South Ossetia, which is otherwise
parallel in many respects, and also with respect to Northern Cyprus, though in that situation the Security
Council has affirmatively rejected the legality of the situation. As for South Ossetia, while it may be
argued that Georgia agreed to the presence of the Russian peacekeepers (though the validity of that
agreement is open to question given the circumstances surrounding its conclusion), the conduct of the
latter, from the beginning, clearly exceeded the scope of Georgian consent. Another basis of distinction
may be found with respect to the degree of independence enjoyed by the authorities. Many of the South
Ossetian “authorities” are Russian public officials (i.e., not merely installed by Moscow, but were
already organs of the Russian Federation and continue to serve in that capacity).
31. Perhaps if Kosovo’s secession was the direct result of that violation, it could be argued
that there is an obligation to refrain from recognizing a new state. A counter-argument would be that
the Security Council’s authorization of KFOR’s presence was a supervening legal event. While this
supervening legal event could not retroactively authorize the NATO bombing, and thus could not afford
a valid basis for territorial claims made by NATO countries, it could break the causal connection
between that bombing and Kosovo’s attempted secession.
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further acts of recognition, whether lawful or not at the time performed,
might cure any legal defects in Kosovo’s claimed title to statehood.32
C. The Lex Specialis of Resolution 1244
In addition to the rules discussed above, the Kosovo situation is also
governed by the lex specialis of Resolution 1244. Thus, another step in the
legal analysis is to consider whether and to what extent the legal situation
has been altered by its terms.
There are at least three phrases within the resolution that may be
interpreted to preclude unilateral attempted secession of Kosovo or
recognition of its secession. Those phrases are: the reaffirmation of “the
territorial integrity of the Federal Republic of Yugoslavia;”33 a “final” or
“political settlement;”34 and “within the Federal Republic of Yugoslavia.”35
As for the first phrase—the reaffirmation of the principle of territorial
integrity—this language merely reaffirms the principle as explained above.
In light of the extraordinary use of Security Council power entailed in
Resolution 1244, this reaffirmation of territorial integrity was likely
included to assure states that the creation of this administration, as such, did
not in any way compromise the de jure territorial integrity of the Federal
Republic of Yugoslavia, which the resolution clearly recognizes as
including Kosovo, or that of any of the other states in the region. But does
it require that Kosovo remain within Serbia pending a political settlement?
As for the second phrase, the references to a “final settlement” and a
“political settlement” might be read as requiring that Belgrade consent to
the final disposition of the question of Kosovo before it becomes legally
cognizable. Certainly, the resolution contemplates that there will be a
settlement. The first question then is what will constitute such a
settlement? The resolution as such provides little guidance. However, it
may be argued that the ordinary meaning of the term settlement connotes
agreement. The question then arises, whose agreement is required? The
particular parties to the dispute? Those parties and the Security Council?
Or the international community as a whole?
Even if the resolution contemplates a final settlement, what is the legal
effect of a failure to achieve such a settlement? Does it require the
continuation of the status quo, and thereby impose an obligation on all
parties to maintain the status quo?
32. See East Timor (Port. v. Austl.), Judgment of 30 June 1995, I.C.J. Rep. 1995, at 90,
Separate Opinion of Judge Oda, ¶ 17.
33.
Resolution 1244, supra note 2, pmbl.
34.
Id. ¶ 11.
35.
Id. ¶ 10.
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The references to a final settlement serve as a marker for the
completion of UNMIK’s mandate. What are the legal consequences then of
a failure to achieve or terminate the mandate? This is a particular concern
in light of Russia’s refusal to agree to terminate UNMIK’s self-renewing
mandate.36 It would seem that UNMIK’s supervisory authority would
continue. Is the existence of this authority sufficient to undermine
Kosovo’s fulfillment of the Montevideo criteria?
As for the third phrase—“within the Federal Republic of
Yugoslavia”—it may be argued that this language legally requires that
Kosovo remain within the Federal Republic of Yugoslavia (FRY) or Serbia.
The whole paragraph reads:
[The Security Council] [a]uthorizes the Secretary-General, with
the assistance of relevant international organizations, to establish
an international civil presence in Kosovo in order to provide an
interim administration for Kosovo under which the people of
Kosovo can enjoy substantial autonomy within the Federal
Republic of Yugoslavia, and which will provide transitional
administration while establishing and overseeing the
development of provisional democratic self-governing
institutions to ensure conditions for a peaceful and normal life for
37
all inhabitants of Kosovo.
In the context of the paragraph as a whole, it becomes clear that this
language refers to the purpose of the administration. UNMIK is established
in order to provide an administration under which the people of Kosovo can
enjoy autonomy with the FRY. While this language recognizes that
Kosovo is within the FRY, it does not expressly indicate that Kosovo must
remain part of the FRY.38
D. The Competence of the PISG
As noted above, the Court could choose to focus on the narrower issue
of the competence of the PISG to declare independence. It could be argued
36. This turn of events is somewhat ironic. As noted above, the Security Council made
UNMIK’s mandate self-renewing presumably in response to concerns that Russia might not continue to
support the Mission if it came up for renewal.
37.
Id.
38. This is, arguably, reinforced by the way in which UNMIK is conceived throughout the
resolution. The resolution envisions UNMIK as a neutral facilitator, while at the same time implying
movement (“transitional”) and direction (“autonomy;” “democratic self-governing institutions”). Thus,
the language of enabling the enjoyment of substantial autonomy may be seen as stipulating UNMIK’s
goal as an interim presence.
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that the PISG are also a creation of Resolution 1244, and as such are
similarly bound by it, and are therefore, obliged to refrain from promoting
or striving toward independence. Nonetheless, this would not necessarily
mean that Kosovo’s secession was not successful. Even if the PISG could
be said to have violated Resolution 1244, this does not mean that the
purported secession was legally ineffective. It could also be argued that the
PISG ceased to be the PISG upon declaring independence, or that they
acted simultaneously in the capacity of a separatist government.39
Ultimately, the Court pursued a very narrow interpretation of the
question posed. While one might conclude from this that the Court decided
to focus exclusively on the competence of the PISG, it took a somewhat
different tack.
III. AN ANALYSIS OF THE ADVISORY OPINION
As a starting point, it is essential to clarify what the Court did not
find. The Court did not find that Kosovo had a right to secede.40 It did not
find that Kosovo’s declaration was legally effective, that the attempted
secession was successful, or that Kosovo is otherwise an independent
state.41 It did not find that other states acted lawfully in recognizing
Kosovo as an independent State.42 Indeed, the Opinion does not in any way
support Kosovo statehood.43 It merely cuts off one possible avenue for
arguing that the attempted secession is unlawful.
As for what the Court did find, there are few noteworthy legal points.
More interesting is the manner in which the Court navigated through the
political morass by recasting the question posed by the General Assembly.
After satisfying itself of jurisdiction, and declining to exercise its
discretion to refrain from rendering an opinion,44 the Court turned to the
question posed and gave it a narrow read. It interpreted the question as not
including an examination of the legal consequences of the declaration, such
39. In this capacity, however, it may be regarded as being competent to act only on behalf of
the territory and population group that it actually controls (i.e., south of the River Ibar).
40. Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, 2010 I.C.J. 141, ¶¶ 82–84 (July 22, 2010) [hereinafter Declaration of
Independence].
41.
See id. ¶¶ 102–09.
42.
See id.
43.
See generally id.
44. Id. ¶¶ 18–48. This is unsurprising, since, as noted above, the Court has never declined to
render an opinion where it has found that a request had been properly made.
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as the issue of whether Kosovo had achieved statehood or “the validity45 or
legal effects of the recognition of Kosovo by those States which have
recognized it as an independent State.”46
The Court then proceeded to assess whether the making of the
declaration was in violation of general international law or of the lex
specialis of Security Council Resolution 1244 and the Constitutional
Framework promulgated pursuant thereto.
A. General International Law
In its analysis of general international law, the Court reaffirmed the
traditional understanding of the principle of territorial integrity as operating
between states. According to the Court, the scope of this principle is
“confined to the sphere of relations between States.”47 Thus, it does not
bind non-state actors, in particular secession seeking groups. According to
this line of reasoning, any general legal prohibition on secession arises, if at
all, under domestic law.
As there is no general prohibition on declaring independence, the
Court opines that there is therefore no need to examine whether there is a
right to secede in this case.48 It thus avoids tackling the issue of selfdetermination. Given the state of international law on this issue, it was best
avoided. More guidance is required from political organs to give this right
legal content. At its present stage of development, the Court would likely
have found it to be non liquet.
B. Security Council Resolution 1244 and the Constitutional Framework
Before assessing the legality of the declaration of independence with
the lex specialis of Resolution 1244 and “measures adopted thereunder,”
the Court addresses the issue of the identity of the authors of the
declaration. It finds that the authors of the declaration were not, contrary to
the apparent assumption underlying the question posed by the General
Assembly, the Provisional Institutions of Self-Government (PISG), but
rather were “persons who acted together in their capacity as representatives
of the people of Kosovo outside the framework of the interim
administration.”49 This of course makes its analysis much simpler.
45. Declaration of Independence, supra note 40, ¶¶ 51, 80. Interestingly, the Court does not
refer here to the “legality” of acts of recognition, but merely to their “validity or legal effects.”
25.
Id. ¶ 80.
47.
Id.
48.
Id. ¶¶ 82–84.
49.
Id. ¶ 109.
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The Court then concludes that as these “persons” were not legally
constrained by Resolution 1244 or measures adopted thereunder, their
making of a declaration of independence was not in violation of this lex
specialis.50 The Court also points out that Resolution 1244 was focused on
process, and not outcome, and that, as such, independence was not
precluded by Resolution 1244.51
In the course of its analysis, the Court makes a few interesting
observations. The first is its affirmation that the Security Council has the
power to legally bind non-state actors. The second is its finding that
UNMIK Regulations promulgated by the Special Representative of the
Secretary General, and the Constitutional Framework in particular, while
operating within the internal legal system of Kosovo, have an international
character, and thus comprise part of the international law applicable in this
context.
C. Recasting the Question
Perhaps the most interesting facet of the Opinion is the manner in
which the Court recasts the question posed by the General Assembly. After
affirming its right to reformulate the scope of questions posed by the
General Assembly, the Court expressly declines to do so.52 Ironically, the
Court then proceeds to do just that.
The question posed by the General Assembly was: “Is the unilateral
declaration by the Provisional Institutions of Self-Government of Kosovo in
accordance with international law?”53 It would seem that the one thing the
General Assembly did make clear was the lawfulness of whose conduct it
sought to be assessed.
Nonetheless, the Court did not consider that “the General Assembly
intended to restrict the Court’s freedom to determine this issue [i.e., the
identity of the authors of the declaration] for itself.”54 That may well be
true. But if that was the case, then perhaps the Court’s analysis should have
stopped as soon as it determined that the authors were other than those
expressly inquired about by the General Assembly.
Further on in the opinion, the Court addresses the question of who
authored the declaration. Its analysis is suspect. It finds, essentially, that
since the PISG were not empowered to declare independence, they could
50.
See Declaration of Independence, supra note 40, ¶¶ 82–84.
51.
See id. ¶¶ 97–100.
52.
Id. ¶ 51.
53.
Request for an Advisory Opinion, supra note 18.
54.
Declaration of Independence, supra note 40, ¶ 53.
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not have been acting in the capacity of the PISG when they did so. This
runs counter to the general principle of law, equally recognized in
international law,55 that an organ may commit ultra vires conduct while still
acting in official capacity.
The Court notes that the authors were instead “persons who acted
together in their capacity as representatives of the people of Kosovo outside
the framework of the interim administration.”56 By what process did they
become “representatives of the people of Kosovo?” These representatives
identified themselves in the declaration as “democratically-elected leaders,”
elected to positions in the PISG pursuant to the legal framework put in
place by UNMIK.57
It could perhaps be argued that these individuals acted simultaneously
in more than one capacity, but to say that they were not acting at all in the
capacity of the PISG strains logic. Ironically, even had the Court
acknowledged that the authors were at least partially acting as the PISG, it
could still have reached the same result—that the making of the declaration
was not unlawful.58
D. The Lotus Principle
One other aspect of the Opinion is worth mentioning—the extent to
which the Court embraced the Lotus principle.
According to the Separate Opinion of Judge Simma, “The Court’s
reading of the General Assembly’s question and its reasoning, leaping as it
does straight from the lack of a prohibition to permissibility, is a
straightforward application of the so-called Lotus principle.”59 However, it
is far from clear that the Court applied the Lotus principle.
55. Responsibility of States for Internationally Wrongful Acts, supra note 27, art. 7. See also
Report of the International Law Commission on the Work of it Fifty-Third Session, 56 U.N. GAOR
Supp. (No.10) at 99–103, U.N. Doc. A/56/10 (2001), reprinted in [2001] 2 Y.B. Int’l L. Comm. 1, U.N.
Doc. A/CN.4/SER.A/2001/Add.1 (Part 2).
56.
Declaration of Independence, supra note 40, ¶ 109.
57. Id. ¶ 75. Also noteworthy is the change in the title of the case from the Court’s earlier
2008 Order. As noted above, the title of the case in that Order was “Accordance with International Law
of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of
Kosovo.” In the Advisory Opinion, the title was changed to “Accordance with International Law of the
Unilateral Declaration of Independence in Respect of Kosovo.” Presumably the title was changed to
correspond to the Court’s reformulation of the question.
58.
See generally Cerone, supra note 1.
59. Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, 2010 I.C.J. 141 (July 22, 2010) (Simma, J., Separate Opinion ¶ 8).
2011]
Cerone
353
First, in its strict construction, that “restrictions on the independence of
states cannot . . . be presumed,”60 the Lotus principle is applicable only to
states, and thus is not implicated by the conduct of non-state actors.
However, read more broadly, the Lotus principle stands for the proposition
that the only international law that exists is that which is positively created
by states, and that in the absence of a rule to the contrary, conduct is
permitted (whether of a state or non-state actor).
Did the Court apply this broader construction of the Lotus principle?
It is more likely that the Court simply interpreted the General Assembly
request as disposing of the issue. The Court read the question of whether
the making of the declaration was in accordance with international law as
equivalent to the question of whether it was in violation of a rule of
international law. This is a reasonable interpretation of the question asked,
particularly in light of the Court’s prior practice of avoiding addressing
head-on the Lotus question.61 Indeed, this interpretation comports with the
presumed intent of the General Assembly. If the General Assembly wanted
the Court to address the Lotus question, it could have asked the question
explicitly. The Court is probably also aware that it is highly unlikely that
the General Assembly would want the Court to opine on the Lotus issue.
IV. CONCLUSION: THE PROPER ROLE OF THE COURT
Some authors have criticized the Court’s narrow interpretation of the
question, finding the Court’s opinion of little legal value and relevance.
While that assessment may be correct, it does not mean that the Court’s
restrictive approach was inappropriate.
This highly sensitive case subjected the Court to strong political
forces. The process of requesting the opinion was heavily negotiated, and
dozens of states made submissions to the Court on the question. Was the
question poorly formulated? Presumably states knew that they were asking
a very narrow question, and perhaps all states’ political interests were
ultimately served by this formulation.62
It is beyond question that the Court is used by states as a policy tool.
This is unproblematic as far as it goes. It is up to the Court to ensure the
integrity of its process. Its function is adjudication, and the Court must not
allow this function to be inappropriately influenced by politics. Indeed, the
60.
Id. ¶ 2.
61. See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996
I.C.J. 226 (July 8).
62. It is not uncommon for states to have recourse to the ICJ for political cover for decisions
that would be politically unpopular with their domestic constituencies.
354
[Vol. 17:2
Court goes out of its way to expressly affirm this responsibility. Whether it
succeeds in fulfilling this responsibility is a matter of some debate.
Concerns have already been raised about the potential effects of the
Opinion on separatist movements around the globe. Should the Opinion
have any knock-on effect? No. It states nothing unusual; virtually nothing
has changed as a legal matter. Will it have a knock-on effect? That
depends on how the decision is spun by the various stakeholders.
If the Opinion simply maintains the legal status quo on the question of
Kosovo’s independence, does this mean that the Court has in some sense
abdicated its responsibility? The Court’s restrictive interpretation of the
question posed, and its preservation of the legal status quo, is appropriate in
this area of the law—one which is driven primarily by political reality. If
the overwhelming majority of states endorse Kosovo’s accession to
sovereignty, its factual independence will be given the imprimatur of
international law. That is not to say that the Court should eschew matters
that are politically sensitive. It has, rightfully, consistently rejected such
arguments. But where, as here, the law leaves its conclusions to the
political process, the Court should sit back and allow that process to come
to resolution.
At the same time, the Court must be vigilant to maintain the integrity
of its process. The way in which the Court recast the question posed by the
General Assembly could lead some to suspect that the Court’s
independence had been compromised.
INTERNATIONAL MIGRATION: TRENDS,
CHALLENGES, AND THE NEED FOR
COOPERATION WITHIN AN INTERNATIONAL
HUMAN RIGHTS FRAMEWORK
Ved P. Nanda*
I.
II.
III.
IV.
INTRODUCTION ................................................................................ 355
TRENDS AND CHALLENGES OF INTERNATIONAL MIGRATION ........ 356
A. Trends...................................................................................... 356
B. Challenges ............................................................................... 358
SELECTED INTERNATIONAL EFFORTS TO ADDRESS MIGRATION
ISSUES AND TO PROTECT MIGRANTS .............................................. 363
A. Pertinent International Norms and Standards ........................ 364
B. Protection of the Rights of Migrant Workers and Members
of Their Families with Special Reference to the Rights of
Migrant Domestic Workers ..................................................... 365
C. Irregular Migrants .................................................................. 369
D. Protection of the Rights of Women Migrant Workers and
the Rights of Children in the Context of Migration ................. 372
1. Women Migrant Workers’ Rights ................................... 372
2. The Rights of Children in the Context of Migration ....... 374
E. Climate Change, Migration, and Displacement...................... 376
CONCLUSION ................................................................................... 378
I. INTRODUCTION
International migration is a growing phenomenon with the estimated
number of international migrants worldwide currently at 214 million.1 The
*
John Evans Distinguished University Professor, University of Denver; Thompson G.
Marsh Professor of Law and Director, International Legal Studies Program, University of Denver Sturm
College of Law. This is an adapted version of a presentation made at the International Law Weekend of
the American Branch, International Law Association, New York, October 22, 2010.
1.
International Organization for Migration, World Migration Report 2010—The Future of
Migration: Building Capacities for Change 115 (2010), available at http://publications.iom.int/
bookstore/free/WMR_2010_ENGLISH.pdf (last visited Feb. 23, 2011) [hereinafter World Migration
Report 2010]. See U.N. Department of Economic and Social Affairs, Population Div. Trends in
International Migrant Stock: The 2008 Revision (July 2009), U.N. Database POP/DB/MIG/
Stock/Rev.2008, available at http://www.un.org/esa/population/ migration/UN_MigStock_2008.pdf
356
[Vol. 17:2
global financial crisis that began in Fall 2008 had an extensive adverse
impact on international migration.2
States responded by introducing restrictive migration policy measures,
such as restricting the inflow of migrants and encouraging their return, in
addition to protecting labor markets for native workers.3 Although this
phenomenon has resulted in slowing the flow of new migrants in many
states, the overall stock of migrants has not decreased.4
At present, a state is under no specific obligation to permit migrants
entry into its territory, nor do most states provide adequate and effective
civil and political or economic, social, and cultural rights to them. Irregular
migrants, that is, migrants without proper legal status in transit, or host
countries, are especially vulnerable and hence, generally face severe
discrimination, exploitation, and criminalization of migration-related
offenses. As the number of migrants is likely to continue to increase,5 the
need is apparent for international cooperative measures to address the
migration challenges the international community will face in the future.
Anticipating such a need, international efforts are ongoing, primarily under
the auspices of the United Nations, to create a normative and institutional
framework to manage migration and protect the rights of migrants.
This essay focuses on these efforts. In Part II, the current trends and
challenges of international migration is presented. Part III features selected
international efforts to ensure that international migration issues are
seriously and thoughtfully addressed and appropriately and effectively
managed while protecting migrants within a human rights framework. Part
IV is the concluding section.
II. TRENDS AND CHALLENGES OF INTERNATIONAL MIGRATION
A. Trends
According to the International Organization for Migration’s (IOM)
World Migration Report for 2010, international migrants, currently
numbering approximately 214 million, compared with an estimated 150
2.
See generally DEMETRIOS G. PAPADEMETRIOU ET AL., MIGRATION POLICY
INSTITUTE/BBC WORLD SERVICE, MIGRATION AND IMMIGRANTS: TWO YEARS AFTER THE FINANCIAL
COLLAPSE: WHERE DO WE STAND? (2010), available at migrationpolicy.org/pubs/MPI-BBCreport2010.pdf (last visited Feb. 23, 2011) [hereinafter TWO YEARS AFTER THE FINANCIAL COLLAPSE].
3.
World Migration Report 2010, supra note 1, at 124.
4.
See id. at 122.
5.
Estimated to be 405 million by 2050. Id. at xix (Foreword by the International
Organization of Migration Director General William Lacey Swing).
2011]
Nanda
357
million in 2000,6 constitute 3.1 percent of the global population.7 Perhaps
10−15 percent of all international migrants are irregular migrants, and an
estimated one-third of all migration from developing countries could be in
that situation.8 In addition, the number of internal migrants in the world is
estimated at 740 million.9 The remittances sent home by migrants were
estimated at $414 billion in 2009, and in 2008 remittances in ten countries
accounted for more than 20 percent of the gross domestic product.10 At the
end of 2008, the number of refugees stood at 15.2 million and the number
of internally displaced persons at 26 million.11
The IOM Report projects the number of international migrants
worldwide to continue to increase in the foreseeable future and to reach 405
million by 2050.12 Although there is uncertainty about the number of
migrants resulting from environmental change, varying from 50 million to
one billion by 2050, the most widely cited figure is up to 200 million
people, and in 2008 approximately 20 million people were displaced by
climate-related natural disasters.13 However, as the Report aptly mentions:
There is no agreed definition or defined category, and no explicit
legal or normative framework pertaining to people moving as a
result of the effects of environmental change. In other words,
even if such movements are already taking place or are likely to
in the future, they may not be recognized, categorized or counted
14
as distinct from other types of movement.
It is likely that most of this migration will be internal, rather than
international. Also, such movement could be temporary and hence the
Report focuses on adaptation and capacity building to address this
6.
Id. at xix.
7.
Id. at 29, 115. See generally id. at 29–44.
8
World Migration Report 2010, supra note 1, at 120.
9.
Id. at 117 (citing the United Nations Development Programme, Human Development
Report 2009).
10.
Id. at 117–18.
11. Id. at 119 (citing the 2009 Office Report, 2008 Global Trends: Refugees, Asylum-Seekers,
Returnees, Internally Displaced and Stateless Persons, and the 2009 Internal Displacement Monitoring
Center Report, Internal Displacement: Global Overview of Trends and Developments in 2008).
12. International Organization for Migration, World Migration Report 2010 Executive
Summary, 1 (2010), available at http://publications.iom.int/bookstore/free/WMR2010_summary.pdf
13. Id. at 2 (citing estimates from the United Nations Office for the Coordination of
Humanitarian Affairs and Internal Displacement Monitoring Center).
14.
World Migration Report 2010, supra note 1, at 73–74.
358
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phenomenon. It enumerates several requirements for capacity building,
including establishing a better evidence base, developing adaptation
strategies, filling gaps in the legal and normative framework, and for states
to amend national immigration laws and policies, and implement national
laws and policies on internal displacement, and ensure provision for
humanitarian assistance.15
B. Challenges
In addition, the enormous challenge migration poses to countries of
origin, transit, and destination, as well as to the individuals involved, daily
headlines are a constant reminder that international migration has become
one of the defining issues of our time.16 Consequently, while the subject
figures prominently on the global policy agenda,17 policy makers in most
countries face formidable challenges in managing it because of its
complexity, as well as its legal, political, economic, and social implications.
While language and integration tests are becoming commonplace today as
immigration criteria, the debate has intensified in Europe on the use of
cultural identities, ethnicity, religion, and race for that purpose, although the
legitimacy of some of these criteria may be questionable.18
In a recent study, Liav Orgad focused on France, Germany, the
Netherlands, the United Kingdom, and Denmark to describe their new
restrictive migration policies and explore whether culture is a legitimate
criterion for regulating migration and access to citizenship.19
He
convincingly demonstrates how these countries are “raising a ‘cultural wall’
15.
Id. at 74–86.
16. See, e.g., Stanley Pignal, EU Faces Threat to Migration Principle, FIN. TIMES (London),
Sept. 29, 2010, at 6; Sara Miller Llana, Global Doors Slam Shut on Immigrants; While Arizona’sAantiImmigrant Laws Get all the Attention, Countries Around the World are Pursuing Tough Immigration
Policies on a Scale Rarely Seen in History, CHRISTIAN SCI. MONITOR, Oct. 9, 2010 [hereinafter Global
Doors Slam Shut]; Haig Simonian, Swiss to Vote on Deporting Criminal Foreigners, FIN. TIMES (USA),
Nov. 26, 2010, at 3; Nick Cumming-Bruce, Swiss Vote to Oust Foreigners Convicted of Serious Crimes,
N.Y. TIMES, Nov. 29, 2010, at A14.
17. See section III, infra, for a discussion of the work of the United Nations and other
international entities on migration issues. In addition, most states—whether states of origin, transit, or
destination—confront various aspects of immigration issues, and at stake are individuals’ lives and wellbeing.
18. See generally Liav Orgad, Illiberal Liberalism: Cultural Restrictions on Migration and
Access to Citizenship in Europe, 58 AM. J. COMP. L. 53 (2010).
19.
Id.
2011]
Nanda
359
on [their] road to citizenship by means of culture-based courses, tests and
contracts.”20
Migrant flows are not confined to developed countries. Thomas
Weiss, Chief of Mission in Mexico City for the International Organization
for Migration, states that the tendency in the West to feel overwhelmed
with migrants “is without understanding exactly that many developing
countries are at the present facing irregular flows that are much stronger
and much more difficult to be absorbed by society and by local labor
markets.”21 A Migration Policy Institute study for the BBC World Service
released in October 2010, examined the impact of the global financial
collapse of Fall 2008 on migration flows, remittances, employment, and
poverty rates, with a special focus on Germany, Ireland, Spain, the United
Kingdom, and the United States.22 It found that the crisis hit immigrants
disproportionately. However, migration flows have remained steady.
Since the mid-1990s, the debate on international migration, especially
the status of undocumented aliens, has intensified. Migrants, especially
irregular migrants, often face resentment and backlash, not only in
developed countries, but also in developing countries. To illustrate, while
angry residents of Arizona or Texas want irregular immigrants from
Mexico deported, equally angry Mexican residents tell those from
Guatemala and Honduras who use Mexico as a passageway to the United
States to go back to their home countries. In the United States, the tragic
events of 9/11 had a profound impact on the ongoing debate in the country
over immigration reform.
The enhanced concern with national security compounded the problem
for immigrants, who were already suffering discrimination, as critics
continued to link immigrants with criminality.23 This link was vigorously
asserted in California by supporters of Proposition 187, a ballot initiative
aimed at denying undocumented aliens social services, health care, and
public education.24
Chairperson of the California Commission for
Immigration Reform and one of the drafters of the proposition, Barbara
20. Id. at 105. See generally id. at 57−96 (describing European laws and policies which tend
to force migrant cultural assimilation).
21.
Global Doors Slam Shut, supra note 16.
22.
See TWO YEARS AFTER THE FINANCIAL COLLAPSE, supra note 2.
23. See Jennifer M. Chacon, Commentary: Blurred Boundaries in Immigration—Unsecure
Borders: Immigration Relations, Crime Control and National Security, 39 CONN. L. REV. 1827,
1843−48 (discussing U.S. laws linking immigrants with criminality). On national security concerns see
generally id. at 1856−75.
24. On Proposition 187, see generally Kevin R. Johnson, An Essay on Immigration Politics,
Popular Democracy, and California’s Proposition 187: The Political Relevance and Legal Irrelevance,
70 WASH. L. REV. 629 (1995).
360
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Coe, wrote in an op-ed piece: “Violent crime is rampant. Illegal-alien
gangs roam our streets, dealing drugs and searching for innocent victims to
rob, rape, and, in many cases, murder those who dare violate their ‘turf.’”25
In a similar vein, in the debate on the enactment by Congress of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,26 which
created several new federal immigration crimes, Senator Orrin Hatch,
Republican from Utah, and Chairman of the Senate Judiciary Committee,
stated:
This is an important bill. It is one of the most important bills in
this country’s history. We can no longer afford to allow our
borders to be just overrun by illegal aliens. . . . Frankly, a lot of
our criminality in this country today happens to be coming from
criminal, illegal aliens who are ripping our country apart. A lot
27
of the drugs are coming from these people.
The outcome has been to increasingly regulate migration through the
criminal justice system, so that criminal enforcement of migration issues
has become routine28 and this has led to a trend of declining procedural
protections of criminal prosecutions for immigration-related offenses.29
After conducting a comprehensive survey of the relationship between
immigration and crime in 20th-Century America, Professors Ramiro
Martinez, Jr. and Matthew T. Lee have concluded in their study that
“immigrants are usually underrepresented in criminal statistics,”30 however,
immigration law and criminal law have indeed become conflated in the
United States.
25. Barbara Coe, Keep Illegals Out of State, USA TODAY, Oct. 12, 1994, at 12A. For the
drafters’ views, see Johnson, supra note 24, at 654−57.
26. Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in scattered sections of 8 U.S.C.
and 18 U.S.C.).
27.
142 CONG. REC. S11,505 (daily ed. Sept. 27, 1996) (statement of Sen. Hatch).
28. See generally Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric
Incorporation of Criminal Justice Norms, 64 WASH. & LEE L. REV. 469 (2007) (describing the
“criminalization” of immigration law and arguing for a return to the civil regulatory model of
immigration law for both enforcement and adjudication).
29. See Jennifer M. Chacon, Managing Migration Through Crime, 109 COLUM. L. REV.
SIDEBAR 135 (2009) (illustrating the use of criminal prosecutions of migrants and the declining
procedural protections in criminal cases regarding migration-related offenses).
30. Ramiro Martinez, Jr. & Matthew T. Lee, On Immigration and Crime, in 1 THE NATURE OF
CRIME: CONTINUITY AND CHANGE 485, 515 (U.S. Dept. of Justice, National Institute of Justice 2000).
2011]
Nanda
361
On the linkage between migration and security, the Global
Commission on International Migration released a report in October 2005.31
The Commission, established in December 2003 by a Core Group of States
“with a mandate to provide the framework for the formulation of a
coherent, comprehensive and global response to the issue of international
migration,”32 is composed of nineteen people from different parts of the
world with high-level international experience. The report states:
The linkage between migration and security has become an issue
of [great] international concern. Recent incidents involving
violence committed by migrants and members of minority groups
have led to a perception that there is a close connection between
international migration and international terrorism. Irregular
migration, which appears to be growing in scale in many parts of
the world, is regarded by politicians and the public alike as a
threat to the sovereignty and security of the state. In a number of
destination countries, host societies have become increasingly
fearful about the presence of migrant communities, especially
those with unfamiliar cultures and that come from parts of the
33
world associated with extremism and violence.
Just as in the United States, there is unease with migrants in Europe
and far-right political parties keen to restrict lenient immigration policies
have experienced unprecedented success in the Netherlands and Sweden.34
France has officially banned the burqa, which completely covers the face
and body,35 a practice challenged in other European countries, as well.
31. REPORT OF THE GLOBAL COMMISSION ON INTERNATIONAL MIGRATION, MIGRATION IN AN
INTERCONNECTED WORLD: NEW DIRECTIONS FOR ACTION (GCIM 2005), available at
http://www.gcim.org/attachements/gcim-complete-report-2005.pdf (last visited Feb. 23, 2011).
32.
Id. at vii.
33.
Id. at 8–9.
34. See, e.g., Robert Marquand, Why ‘Islamophobia’ is Less Thinly Veiled in Europe: How
Anti-Muslim Sentiment is Different European Countries than in America, CHRISTIAN SCI. MONITOR,
Sept. 5, 2010; Migration Policy Institute, Migration Information Source, Europe, Wary of Immigration
and
Immigrants,
Reaches
an
Inflection
Point,
Dec.
2,
2010,
available
at
http://www.migrationinformation.org/Feature/display.cfm?ID=814 (last visited Feb. 23, 2011) [hereafter
Europe, Wary of Immigration].
35. See, e.g., Mona Eltahawy, Rending the Veil—with Little Help, WASH. POST, July 17, 2010,
at A13; Robin Givhan, Runway Fashions and the Burqa: In France, They Know About the Power of
Clothes, WASH. POST., Oct. 3, 2010, at E05; Danna Harman, French Muslims Feel Increased Scrutiny
Amid Terror Concerns; Many Muslims in France Feel Increasingly Targeted Amid Growing Terror
Concerns and What Some See as Anti-Muslim Measures, Such as the Banning of Burqas in Public,
CHRISTIAN SCI. MONITOR, Oct. 8, 2010; See also Kristi Severance, Migration Policy Institute,
Migration Information Source, France’s Expulsion of Roma Migrants: A Test Case for Europe, Oct. 21,
362
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Switzerland has banned minarets,36 and in Germany, there is disquiet about
Turkish immigrants.37
Environmental migration poses special challenges. Predictions about
the impact of climate change on displacements are in the hundreds of
millions. The United Nations Development Programme puts the figure at
330 million people being temporarily or permanently displaced through sea
level rise and flooding if global temperatures rise by 3−4 degrees
Centigrade.38 According to the IOM, “the most widely repeated prediction”
is that 200 million people will be displaced because of climate change by
2050.39
However, there is a great deal of uncertainty about these numbers and
about the role of climate change in causing migration and displacements.
Environmental degradation—from drought, desertification, or flooding, for
example, and due to climate change and/or other causes—may not be the
sole driver of migration, whether internal or international, temporary or
long-term, or perhaps even permanent. It is likely that in conjunction with
environmental degradation, other factors—demographic, economic, and
political—could have precipitated the move. Also, it is possible that people
may not move, but adapt to the changed environmental conditions, by
modifying land use practices, for example.
Notwithstanding these challenges and notwithstanding the enormity of
the problems humanity faces because of migration—whether voluntary or
forced—and displacement, states have a sovereign right under international
law to decide who enters the country and under what conditions, who stays,
and the right to regulate the movement of persons within their borders.
They are under no obligation to admit foreigners to their territory and are
free to decide on whom to confer nationality and to determine the criteria
for that decision.
2010, available at http://www.migrationinformation.org/Feature/display.cfm?ID=803 (last visited Feb.
23, 2011).
36. See, e.g., Julie Schindall, Migration Policy Institute, Migration Information Source, Swiss
Vote to Ban Minarets, Sparking International Criticism, Dec. 1, 2009, available at
http://www.migrationinformation.org/Feature/display.cfm?ID=755 (last visited Feb. 23, 2011).
37. See, e.g., Anthony Faiola, Official’s Views on Muslim Immigration Divide Germany,
WASH. POST, Sept. 10, 2010, at A14; Eric Leise, Migration Policy Institute, Migration Information
Source, Germany Strives to Integrate Immigrants with New Policies, July 9, 2007, available at
http://www.migrationinformation.org/Feature/display.cfm?id=610 (last visited Feb. 23, 2011).
38. U.N. DEVELOPMENT PROGRAMME, FIGHTING CLIMATE CHANGE: HUMAN SOLIDARITY IN
DIVIDED WORLD, HUMAN DEVELOPMENT REPORT 2007/2008, at 9 (2007) [hereinafter U.N.
DEVELOPMENT PROGRAMME].
A
39. INTERNATIONAL ORGANIZATION FOR MIGRATION, MIGRATION AND CLIMATE CHANGE 9
(IOM Migration Research Series No. 31, 2008).
2011]
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363
Consequently, immigration law and policies are within the purview of
each state.
Although international migrants often make valuable
contributions in the countries of destination, they are vulnerable to a range
of abuses, enduring exploitation, discrimination, xenophobia, racism, and
violation of basic human rights, especially denial of access to education and
health. This happens despite the existence of various international
instruments under which states have an obligation to respect and protect the
human rights of all individuals under their jurisdiction regardless of their
nationality, origin, or immigration status.
III. SELECTED INTERNATIONAL EFFORTS TO ADDRESS MIGRATION ISSUES
AND TO PROTECT MIGRANTS
In light of the trends and challenges of international migration
discussed above, migration issues are receiving serious national, regional,
and international attention. International entities actively involved with
international migration issues include the United Nations and its various
agencies, especially the Office of the United Nations High Commissioner
for Human Rights,40 the Special Rapporteur on the Human Rights of
Migrants,41 and the Committee on the Protection of the Rights of All
Migrant Workers and Members of their Families.42 The Global Migration
Group43 and the Global Forum on Migration and Development44 are two
special initiatives by the United Nations. Other organizations include the
World Bank,45 the International Organization for Migration,46 and the
Organization of Economic Cooperation and Development.47 In the United
40. United Nations Human Rights, Office of the High Commissioner for Human Rights,
http://www.ohchr.org/EN/Pages/WelcomePage.aspx (last visited Mar. 15, 2011).
41. Office of the United Nations High Commissioner for Human Rights, Special Rapporteur
on the Human Rights of Migrants, http://www2.ohchr.org/english/issues/migration/rapporteur/ (last
visited Mar. 15, 2011).
42. Office of the United Nations High Commissioner for Human Rights, Committee on
Migrant Workers, http://www2.ohchr.org/english/bodies/cmw/ (last visited Mar. 15, 2011).
43.
Global Migration Group, http://www.globalmigrationgroup.org/ (last visited Mar. 15,
44.
Global Forum on Migration & Development, http://gfmd-fmmd.org (last visited Mar. 15,
45.
The World Bank, http://www.worldbank.org (last visited Mar. 15, 2011).
2011).
2011).
46. International Organization on Migration, http://www.iom.int/jahia/jsp/index.jsp (last
47. Organisation for Economic Co-operation and Development, http://www.oecd.org (last
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States the Migration Policy Institute,48 the Population Reference Bureau,49
and the Annie E. Casey Foundation50 are major actors.
Migration issues cover a wide spectrum of topics. However, after
noting the pertinent international norms and standards that apply to
international migration, the discussion here is limited to the work of
selected international entities on the following major issues: protection of
the rights of migrant workers and their families, with special reference to
migrant domestic workers; protection of the rights of irregular migrants;
protection of women migrant workers’ rights, and the rights of children in
the context of migration; and climate change, migration, and displacement.
A. Pertinent International Norms and Standards
In addition to the Universal Declaration of Human Rights,51 pertinent
treaties include the two International Covenants—on Economic, Social, and
Cultural Rights52 and on Civil and Political Rights53—the 1990
International Convention on the Protection of All Migrant Workers and
Members of their Families (Migrant Workers Convention),54 and two
International Labor Organization (ILO) Conventions—ILO Convention 97
on Migration for Employment (1949)55 and ILO Convention 143 on
Migrant Workers (1975) (Supplementary Provisions),56 which are
commonly referred to as constituting an international charter on migration.
Together these provide for protection of all migrants’ rights, whether they
are in regular or irregular status. In addition, several international
48.
Migration Policy Institute, http://www.migrationpolicy.org (last visited Mar. 15, 2011).
49.
Population Reference Bureau, http://www.prb.org (last visited Mar. 15, 2011).
50.
The American Council for Capital Formation, http://www.aecf.org (last visited Mar. 15,
2011).
51. Universal Declaration of Human Rights, adopted by the UN General Assembly on Dec.
10, 1948, G.A. Res. 217A, U.N. GAOR, 3rd Sess., Pt. I, Resolutions, at 71, U.N. Doc. A/810 (1948).
52. International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3,
reprinted in 6 I.L.M. 360 (1967).
53. International Covenant on Civil and Political Rights, 993 U.N.T.S. 171, reprinted in 6
I.L.M. 368 (1967).
54. International Convention on the Protection of the Rights of all Migrant Workers and
Members of their Families, opened for signature Dec. 18, 1990, 30 I.L.M. 1517 (entered into force July
1, 2003) [hereinafter Migrant Workers Convention]. See generally Office of the UN High
Commissioner for Human Rights, The International Convention on Migrant Workers and its Committee,
Fact Sheet No. 24 (Rev. 1) (2005).
55.
Convention Concerning Migration for Employment, July 1, 1949, 1616 U.N.T.S. 120.
56. Convention Concerning Migrations in Abusive Conditions and the Promotion of Equality
of Opportunity and Treatment of Migrant Workers, June 24, 1975, 17426 U.N.T.S. 1120.
2011]
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instruments place migration in a human rights context. Among these are
core United Nations human rights conventions, such as the Women’s
Rights Convention (CEDAW),57 Convention on the Rights of the Child,58
the Torture Convention,59 the Elimination of Racial Discrimination
Convention,60 and the Refugee Convention61 and its Protocol.62
B. Protection of the Rights of Migrant Workers and Members of Their
Families with Special Reference to the Rights of Migrant Domestic Workers
The pertinent conventions are the Migrant Workers Conventions and
the two ILO Conventions mentioned above. Although the Migrant Workers
Convention has received just forty-four ratifications as of December 15,
2010,63 and the ILO Conventions even fewer, other conventions mentioned
above have been widely ratified, with a large number of states having
become parties to these conventions. However, even in states that are
parties to these conventions, migrants often are subjected to human rights
violations such as discrimination, xenophobia, and racism. They face
violence, exploitation and unsafe conditions, and sexual harassment, and
are often denied access to basic health care, education, and adequate
housing—all in breach of states’ obligations under international law, which
guarantees these rights to migrants.
The Migrant Workers Convention is one of the core United Nations
human rights treaties, embodying migrant workers’ rights within a human
rights framework. It contains a comprehensive definition of migrant
workers, as it defines a migrant worker as “a person who is to be engaged,
is engaged or has been engaged in a remunerated activity in a State of
which he or she is not a national.”64 Under Article 7, states are to respect
57. Convention on the Elimination of all Forms of Discrimination against Women, Dec. 18,
1979, 1249 U.N.T.S. 13, reprinted in 19 I.L.M. 33 (1980).
58. Convention on the Rights of the Child, G.A. Res. 44/25 (Annex), U.N. GAOR 44th Sess.,
Supp. No. 49, at 166, U.N. Doc. A/RES/44/49 (1990), reprinted in 30 I.L.M. 1448 (1989) [hereinafter
Convention on the Rights of the Child].
59. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46 (Annex), U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc.
A/39/51 (1985), reprinted in 23 I.L.M. 1027 (1984).
60. International Convention on the Elimination of all Forms of Racial Discrimination, Jan. 4
1969, 660 U.N.T.S. 195, reprinted in 5 I.L.M 352 (1966).
61.
Convention Relating to the Status of Refugees, Apr. 22, 1954, 189 U.N.T.S. 150.
62. Protocol Relating to the Status of Refugees, Oct. 4, 1967, 606 U.N.T.S. 267, reprinted in 6
I.L.M. 78 (1967).
63.
United Nations Treaties, http://www.treaties.un.org (last visited Mar. 15, 2011).
64.
Migrant Workers Convention, supra note 54, art. 2(1).
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and ensure the rights contained in the Convention “without distinction of
any kind, such as sex, race, color, language, religion or conviction, political
or other opinion, national, ethnic, or social origin, nationality, age,
economic position, property, marital status, birth or other status.” It grants
a fairly broad series of rights to all migrant workers and members of their
families, regardless of their migratory status.65 It assigns additional rights
to migrant workers and members of their families who are documented or
in a regular situation.66 It especially provides for interstate consultation,
cooperation, and information sharing on various aspects of international
migration.67
The implementation of the Convention is monitored by a Committee—
the Committee on the Protection of the Rights of All Migrant Workers and
Members of their Families (the Committee)—consisting of fourteen experts
elected by the state parties, under Article 72.68 Under Articles 76 and 77, a
state may make a declaration recognizing the competence of the Committee
to receive communications from state parties and individuals, respectively,
about noncompliance with the Convention’s provisions.
Commemorating the 20th anniversary of the Convention, the United
Nations High Commissioner for Human Rights, Ms. Navi Pillay, addressed
the Global Forum on Migration and Development at Puerto Vallarta,
Mexico, in November 2010, calling:
[F]or the strengthening of anti-discrimination measures
everywhere. Racist violence and xenophobia against foreigners
must be countered with all appropriate legal and administrative
means, perpetrators must be prosecuted vigorously, and
education that promotes our common human values, teaches
respect and tolerance—in short, human rights education—must
be pursued with urgency. This is the minimum effort incumbent
upon all countries, whether countries of origin, transit or
destination, in order to prevent manifestations of xenophobia and
69
stem intolerance at its roots.
65.
Id. arts. 8–35.
66.
See generally id. arts. 37–56.
67.
Id. arts. 64–71.
68. Id. art. 73(1)(a). In May 2008, the Committee on the Protection of the Rights of All
Migrant Workers and their Families released a set of guidelines for states parties’ submission of their
periodic reports to the Committee as required under Article 73(1)(a) of the Convention.
69. Navanethem Pillay, UN High Commissioner for Human Rights, Global Forum on
Migration and
Development/Civil Society
Days
(Nov.
8,
2010),
available
at
ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10514&LangID=E (last visited Mar. 17,
2011).
2011]
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367
Since there are no express references to either domestic work or
domestic workers within either a national or international framework of
law, the Committee issued a General Comment in November 2009 to
provide guidance to states on how to implement their obligations under the
Migrant Workers Convention regarding migrant domestic workers.70
After noting that the term “domestic worker” generally refers to a
person who performs work within an employment relationship in or for
other people’s private homes, whether or not residing in the household,71 it
observes that such workers face even “heightened risk of certain forms of
exploitation and abuse.”72 The Comment identifies problems faced by such
workers and members of their families, for these workers remain vulnerable
throughout the migration cycle—recruitment, predeparture, and in countries
of transit, at arrival, during employment, and upon return.73 Family unity
could be negatively affected because of the prolonged absence of such
workers, and this often results in the violation of the rights of children who
have remained in the home country.74
The Comment further describes the reintegration problems of migrant
domestic workers upon their return home. Also, as most cannot stay in the
country of employment after the termination of their employment
relationship, they may be unable to seek remedies if their employers have
violated their rights by refusing to pay due compensation or having abused
the workers.75
The Comment notes that while international treaties regarding human
rights law and labor law amply cover migrant workers, many national laws
categorically exclude domestic workers “in ways that contribute to
exploitative labour practices and limit avenues for legal redress in cases of
violations.”76 It then details the gaps for migrant domestic workers in the
legal system—labor law, immigration law, contract law, and social security
laws. Domestic workers are frequently excepted from the protections of
labor laws, as they do not work for regular “employers,” and they are
70. Committee on the Protection of the Rights of all Migrant Workers and Members of Their
Families, General Comment No. 1 on Migrant Domestic Workers, U.N. Doc. CMW/C/12/CRP.2/Rev. 2
(Nov. 30 2010) [hereinafter Committee on the Protection of the Rights of all Migrant Workers and
Members of Their Families].
71.
Id. ¶ 5.
72.
Id. ¶ 7.
73.
Id. ¶¶ 9−14, 16, 17.
74.
Id. ¶ 15.
Families, supra note 70, ¶¶ 16−17.
76.
Id. ¶ 18.
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[Vol. 17:2
treated as “family helpers,” which leads to an “unrecognised” status as
“workers” and an inability to exercise their due rights and freedoms under
labor law.77
Domestic workers are often prevented from organizing for their labor
rights and in household settings they do not benefit from the monitoring and
inspections available to other workers.78 Restrictive immigration laws in
destination countries often cause undocumented or irregular migrant
domestic workers to be present in overly large numbers, leaving them
further vulnerable to exploitation because of their dependence on the
continued sponsorship of specific employers.79 Women migrant domestic
workers may face even further gender-based hardships, such as losing their
permit if they get pregnant or are found to be HIV-positive.80 Furthermore,
domestic migrant workers are often deprived of the application of national
contract laws and social security laws.81
The Comment next reviews gaps between the protections provided to
such workers in law and in practice. It identifies some of the practical
obstacles they face because of the “hidden” nature of the domestic work
and others which prevent or deter them from claiming their rights and
seeking redress.82 Finally, the Comment makes recommendations to State
Parties aimed at protecting the rights of domestic workers. These include
developing predeparture programs for raising awareness and training
migrant workers about their rights under other states’ laws and practice.83
The Comment notes that since State Parties share the responsibility to
regulate and monitor recruitment and placement processes, they are under
an obligation to ensure that labor workers, recruitment agencies, and other
intermediaries respect the rights of migrant domestic workers.84 Detailed
provisions are included regarding migrant domestic workers’ conditions of
work and the application of states’ social security benefits to the domestic
workers on the basis of equal treatment with nationals.85 The Comment
specifically provides for protection of the migrant domestic workers’ right
77.
Id. ¶ 19.
78.
Id. ¶ 20.
79.
Id. ¶ 21.
Families, supra note 70, ¶ 22.
81.
Id. ¶¶ 23−24.
82.
Id. ¶¶ 25−27.
83.
Id. ¶¶ 28−30.
84.
Id. ¶¶ 31−36.
Families, supra note 70, ¶¶ 37−44.
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to organize for collective bargaining, freedom of religion or belief and
freedom of expression, and access to justice and remedies.86
Other provisions call for access to regular channels for migration
status, respect for family unity, special protection for children, and
sensitivity to gender perspective.87 Finally, the Comment recommends that
embassies and consulates of states of origin should be actively involved in
protecting the rights of their nationals employed as migrant domestic
workers.88 Furthermore, in the development and implementation of
legislative and other measures related to the protection of migrant domestic
workers’ rights, migrant domestic workers and civil society organizations
should be genuinely consulted and State Parties should specifically report
their efforts to monitor migrant domestic workers’ situations and statistical
data.89
C. Irregular Migrants
No precise and accurate information is currently available about the
number of irregular or undocumented international migrants in transit or in
host countries worldwide. However, the Global Migration Group on the
Human Rights of Migrants in Irregular Situation (GMG)90 estimates the
number in the tens of millions.91
A 2002 study of the International Labor Organization explains the
impact of globalization on migration and the reasons for preference for
irregular migrants by stating that:
[T]he demand for foreign labour reflects the long term trend of
informalization of low skilled and poorly paid jobs, where
irregular migrants are preferred as they are willing to work for
86.
Id. ¶¶ 45−50.
87.
Id. ¶¶ 51−61.
88.
Id. ¶¶ 62−64.
89.
Id. ¶¶ 65−66.
90. Global Migration Group, http://www.globalmigrationgroup.org (last visited Mar. 15,
2011). GMG is a UN inter-agency group comprising of twelve UN agencies, the World Bank, and the
IOM; and was established in 2006 and is aimed at promoting the application of relevant international
instruments and norms relating to migration and at encouraging the adoption of comprehensive and
more coherent and coordinated approaches to the international migration issue.
91. Statement of the Global Migration Group on the Human Rights of Migrants in Irregular
Situation (Sept. 30, 2010), http://www.globalmigrationgroup.org/pdf/GMG%20Joint%20Statement%
20Adopted%2030%20Sept%202010.pdf (last visited Feb. 27, 2011) [hereinafter GMG Statement].
370
[Vol. 17:2
inferior salaries, for short periods in production peaks, or to take
92
physically demanding and dirty jobs.
It is widely reported in the media that irregular or undocumented
migrants often suffer exclusion.93 For example, in the United States,
Congress passed the 1996 Personal Responsibility and Work Opportunity
Reconciliation Act94 as part of an immigration reform movement. The Act
specifically denies Medicaid and other local benefits to undocumented
migrants, who are referred to as “undocumented aliens,”95 as contrasted
with qualified aliens, Lawful Permanent Residents, asylees, and refugees.96
In Texas, an undocumented worker may be unable to recover any lost
wages for discriminatory termination of his employment by his employer.97
These workers also face discrimination, abuse, and exploitation. The
Economist narrates the story of the Vega family, undocumented migrants
from southern Mexico, who succeeded in crossing the border after several
attempts, suffering abuse and violence along the way, and frequent
deportation by officials. The family was finally employed in Arizona as
farm workers.98 They were reported as feeling:
[H]ated much of the time. Some people hurl racial slurs at them,
give them dirty looks or call them “wetbacks,” a term of abuse
recalling someone who has just swum the Rio Grande. Felix
92. Patrick A. Taran & Eduardo Geronimi, Globalisation, Labour and Migration: Protection
is Paramount, 3E PERSPECTIVES ON LABOUR MIGRATION 5 (2002).
93. See, e.g., D. Carolina Nunez, Fractured Membership: Deconstructing Territoriality to
Secure Rights and Remedies for the Undocumented Worker, 2010 WIS. L. REV. 817 (2010) (critiquing
undocumented workers’ status-based exclusion from workplace protections); Maya A. Babu & Joseph
B. Wolpin, Note and Comment: Undocumented Immigrants, Healthcare Access, and Medical
Repatriation Following Serious Medical Illness, 3 J. HEALTH & LIFE SCI. L. 83 (2010) (discussing the
U.S. healthcare and immigration policy and identifying unresolved legal and ethical issues).
94.
8 U.S.C. § 1601 (1996).
95.
Id.
96.
Id. § 1641(b).
97. See, e.g., Escobar v. Spartan, 281 F.Supp.2d 895, 897 (S.D. Tex. 2003), in which the court
held, citing Hoffman Plastic Compounds, Inc. v. Nat’l Labor Relations Board, 535 U.S. 137 (2002), that
Escobar was “not entitled to back pay on his claims under Title VII, such a remedy being foreclosed by
the fact that he was an undocumented worker at the time he was employed by Spartan.” See also Crespo
v. Evergo Corp., 841 A.2d 471, 477 (2004), where the court held that the plaintiff could not recover
because of the “Congressionally mandated disqualification, violation of which imposes criminal liability
upon not only the employer but the employee as well. . . . [I]t is the illegality of plaintiff’s employment
which precludes both economic and non-economic damages she claims resulted from the termination of
that employment.”
98.
Fields of Tears, ECONOMIST, Dec. 18, 2010, at 39.
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Vega says that the mood has become noticeably more hostile this
year, perhaps because a controversial state law in Arizona has
legitimized such animosity. That law . . . would make illegal
99
immigration a state crime and oblige local police to enforce it.
After studying the plight of irregular migrants, the GMG vividly
describes that plight in its statement, which urges states to protect the
fundamental rights of all persons regardless of their migration status.100 As
the statement clearly and convincingly makes the case for irregular
migrants protection, it seems appropriate to cite it here extensively.
After enumerating fundamental rights of all human beings under
international human rights instruments and customary international law, the
GMG calls on states to review the situation of such migrants and further
calls upon:
[S]tates, civil society, the private sector, the media and host
communities to address the demand side of trafficking and
exploitation, to work actively to combat xenophobia, racism and
incitement to discrimination in national politics and in public
discourse to protect all migrants, as well as to actively promote
tolerant societies in which every person can enjoy his or her
101
human rights, regardless of migration status.
According to the GMG statement, undocumented international
migrants:
[O]ften face prolonged detention or ill-treatment, and in some
cases enslavement, rape or even murder. They are more likely to
be targeted by xenophobes and racists, victimized by
unscrupulous employers, and sexual predators, and can easily fall
prey to criminal traffickers and smugglers. Rendered vulnerable
by their irregular status, these men, women and children are often
afraid or unable to seek protection and relief from the authorities
102
of countries of origin, transit or destination.
After especially describing the plight of children in the context of
migration and female migrants in such situations, the statement adds:
99.
Id. at 42.
100. GMG Statement, supra note 91.
101. Id.
102. Id.
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Too often, States have addressed irregular migration solely
through the lens of sovereignty, border security or law
enforcement, sometimes driven by hostile domestic
constituencies. Although States have legitimate interests in
securing their borders and exercising immigration controls, such
concerns cannot, and indeed, as a matter of international law, do
not, trump the obligations of the State to respect the
internationally guaranteed rights of all persons, to protect those
rights against abuses, and to fulfill the rights necessary for them
103
to enjoy a life of dignity and security.
The United Nations High Commissioner for Human Rights, Ms. Navi
Pallay, who was then chairing the GMG, said to the media on September
30, 2010, after the adoption of the GMG statement, that it was a “landmark
statement,” which was “historic,” since the GMG had “[spoken] out with
one voice for the protection of the human rights of all migrants, particularly
those who are caught in an irregular situation.”104 Since this GMG call is
not obligatory on states, their implementation of this historic call for action,
as for similar other calls, will obviously depend on the state’s politics and
its decision making processes, for immigration issues tend to be volatile in
many states.
D. Protection of the Rights of Women Migrant Workers and the Rights of
Children in the Context of Migration
Women migrant workers and children in the context of migration are
especially vulnerable and often are subjected to exploitation and abuse.
1. Women Migrant Workers’ Rights
The United Nations Development Fund for Women (UNIFEM) has
been actively engaged in activities and programs aimed at ensuring
protection of women migrant workers’ rights. In a 2003 Briefing Paper, it
emphasized the role of globalization in enhancing demand for labor in
many countries and the consequent increased migration numbers to meet
that demand, growth in the informal sector and decreased regulation of the
labor market. These trends, the Briefing Paper argued, had set “the scene
for exploitation of those most desperate: irregular border-crossers, those in
103. Id.
104. Press Release, Navi Pillay, Chair, Global Migration Group, Landmark Statement on
Protecting the Human Rights of Irregular Migrants (Sept. 10, 2010), available at
http://www.ohchr.org/EN/NewsEvents/Pages/MigrantsInIrregularSituation.aspx (last visited Mar. 11,
2011).
2011]
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373
the informal sector, and the poor. For women, these trends spell increased
vulnerability to exploitation and abuse, and continuing inequality with
men.”105
In a September 2010 consultation, UNIFEM co-organized with the
Government of Mexico.106 The participants expressed concern with “the
continuing reports of the grave human rights abuses committed against all
categories of women migrant workers at all stages of migration.”107 They
were also concerned that women migrants, including domestic workers,
may not receive adequate labor law protection.108 They called upon
participating states and civil society organizations attending the Global
Forum on Migration and Development’s meeting in November 2010 in
Mexico,109 inter alia, to:
Mainstream a gender-sensitive human rights perspective and
provisions to eliminate stigma and discrimination, including for
domestic workers, into migration, labor, population and
development policies, legislation . . . plans and budgets, with
strong accountability mechanisms at national/local levels in
110
countries of origin, transit, and destination.
Among other recommendations are those calling for information
sharing, awareness raising, and capacity building of migrant women
workers.
105. UNIFEM, Human Rights Protections Applicable to Women Migrant Workers—A
UNIFEM Briefing Paper 4 (2003), available at http://www.unifem.org/attachments/products/
HRProtectionsApplicable2WMW_eng.pdf (last visited Mar. 11, 2011); see also an accompanying
document, UNIFEM, Human Rights Protections Applicable to Women Migrant Workers—A UNIFEM
Legal Analysis (2003). For a report on UNIFEM policy and programs on international migration, see
UNIFEM, Policy and Programme Work on International Migration (2008), available at
http://www.un.org/esa/population/meetings/seventhcoord2008/P06_UNIFEM.pdf (last visited Mar. 11,
2011).
106. UNIFEM, Mexico City Conclusions, Mexico City, Mexico, Sept. 7–8, 2010, Promoting
and Protecting the Rights of Women Migrant Workers: Partnerships for Migration and Human
Development: Shares Prosperity—Shared Responsibility, available at http://www.migration-unifemapas.org/docs/TheMexicoCityConclusions_onProtectingWomenMigrantsSept2010.pdf (last visited Mar.
11, 2011) [hereinafter Mexico City Conclusions]. Participants in the consultation were UN
representatives from governments of twenty countries in five continents, along with other international
organizations and civil society.
107. Id.
108. Id.
109. See generally Global Forum on Migration & Development, Reports of the GFMD Mexico
Meetings, available at http://www.gfmd.org/en/documents-library/mexico-2010.html (last visited Feb.
27, 2011).
110. Mexico City Conclusions, supra note 106.
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Earlier, in July 2009, the United Nations Secretary-General issued a
report,111 which referred to the pertinent international legal framework,
including the Migrant Workers Convention and the ILO Conventions
mentioned above, and other instruments related to violence against women
migrant workers.
These instruments included the United Nations
Convention against Transnational Organized Crime and its Protocols,
including the Protocol against Smuggling of Migrants by Land, Sea and
Air.112 After describing the activities undertaken by states and the United
Nations, such as those related to preventive measures, new legislation and
policy development, protection and support for women migrant victims of
violence, the report made several specific recommendations to states,
including one calling on states to:
[E]nsure that migration policies are gender-sensitive, rightsbased and promote safe migration, and that all relevant policies
and strategies ensure the protection of the human rights of all
women migrant workers and comprehensively address violence
against women migrant workers, including measures to prevent
violence, prosecute perpetrators and protect and support
113
victims.
2. The Rights of Children in the Context of Migration114
The Office of the High Commissioner for Human Rights and the
Special Rapporteur on the Human Rights of Migrants have been actively
involved in studying and reporting on this issue. Two recent reports, one
by the High Commissioner on July 5, 2010,115 and the other by the Special
111. U.N. Secretary-General, Violence Against Women Migrant Workers, U.N. Doc. A/64/152
(July 16, 2009) [hereinafter Violence Against Women Migrant Workers].
112. United Nations Office on Drugs and Crime, United Nations Convention Against
Transnational Organized Crime and the Protocols Thereto, 2225 U.N.T.S. 209, U.N. Doc. A/55/383
(Sept. 29, 2003), available at http://www.unodc.org/documents/treaties/UNTOC/Publications/
TOC%20Convention/TOCebook-e.pdf (last visited Feb. 27, 2011).
113. Violence Against Women Migrant Workers, supra note 111, at 50.
114. For comments of the International Labor Organization on Migration and the Rights of the
Child, see International Labor Organization, Geneva, Switzerland, Apr. 28, 2010, Migration and the
Human Rights of the Child, available at http://www2.ohchr.org/english/issues/migration/consultation/
docs/Intergovernmental%20Organisations/INTERNATIONAL_LABOUR_ORGANIZATION.doc (last
115. Human Rights Council, Study of the Office of the United Nations High Commissioner for
Human Rights on Challenges and Best Practices in the Implementation of the International Framework
for the Protection of the Rights of the Child in the Context of Migration, U.N. Doc. A/HRC/15/29 (July
5,
2010),
available
at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/
A.HRC.15.29_en.pdf (last visited Mar. 9, 2011). The Office of the United Nations High Commissioner
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Rapporteur on May 14, 2009, thoroughly analyzed the situation.116 In his
study, the Special Rapporteur, after presenting an overview of the
applicable international legal framework, with a focus on the Convention
on the Rights of the Child, the Special Rapporteur noted protection gaps: 1)
on deportation and detention;117 and 2) the other on public policies that do
not take into account the specific conditions and needs of migrant
children.118
The Special Rapporteur categorized children affected by the migration
process into three groups—those left behind by migrating family
members,119 migrant children moving across borders,120 and migrant
children in host countries.121 He referred to the problems faced by children
in each one of these categories and identified the protections they need. He
recommended to states that they should ratify relevant international human
rights instruments and implement them through their national laws and
policies. In addition, he urged them to emphasize a human rights approach
to the issue,122 protect the most vulnerable,123 share information,124 and take
measures to protect children in all the categories listed above.125 He also
called for inter-institutional coordination at the national level and
international collaboration by all participants.126
The study by the High Commissioner for Human Rights also focused
on the existing normative standards to protect the rights of the child in the
context of migration, with special focus on the Convention on the Rights of
the Child.127 Its discussion of the challenges in implementation included
for Human Rights had earlier co-organized an international meeting on the protection of the rights of
children in the context of international migration in Mexico City on September 30 and October 1, 2008.
116. Human Rights Council, Jorge Bustamante, Special Rapporteur on the Human Rights of
Migrants, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and
Cultural Rights, Including the Right to Development, U.N. Doc. A/HRC/11/7 (May 14, 2009), available
at http://www2.ohchr.org/english/bodies/hrcouncil/docs/11session/A.HRC.11.7.pdf (last visited Mar. 9,
2011) [hereinafter Jorge Bustamante Report].
117. Id. at 43.
118. Id. at 44.
119. Id. at 45–51.
120. Id. at 52–65.
121. Jorge Bustamante Report, supra note 116, at 66–80.
122. Id. at 82–83.
123. Id. at 84–87.
124. Id. at 88–89.
125. Id. at 90–126.
126. Jorge Bustamante Report, supra note 116, at 127–28.
127. See Convention on the Rights of the Child, supra note 58, ¶¶ 9–30.
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detention and access to health, housing, education, and work.128 It provides
an overview of selected practices of governments, international
organizations, and NGOs, among others, regarding the initiatives they have
taken on several aspects of the topic,129 and offered a similar set of
recommendations as suggested by the Special Rapporteur.130
E. Climate Change, Migration, and Displacement
As mentioned above, uncertainty exists about the nature and scope of
migration and displacement to be attributed to environmental degradation,
and as to how much of that harm is due to climate change. Several
international organizations, including the IOM, the United Nations High
Commissioner for Refugees (UNHCR), and the Representative of the
Secretary General on the Human Rights of Internally Displaced Persons,
acknowledged this uncertainty in their submission of February 2009:
While there are no scientifically verified estimates of climate
change-related displacement or of overall population flows
triggered by the effects of climate change, it is evident that
gradual and sudden environmental changes are already resulting
in substantial human migration and displacement. This trend is
expected to continue, with anywhere between 50 and 200 million
people moving as a result by the middle of the century, either
within their countries or across borders, on a permanent or
temporary basis. There is a possibility of even higher numbers if
the [Intergovernmental Panel on Climate Change’s] worst-case
scenarios materialize. In some cases, in particular at early stages
of environmental degradation and for those with the resources to
move, migration may be an adaption mechanism, allowing, for
example, to diversify the sources of income. In other instances,
in particular in cases of natural disasters and for those with fewer
means to move, leaving their places of habitual residence may be
an expression of failed adaption and constitute a survival
131
mechanism.
128. Id. ¶¶ 31–78.
129. Id. ¶¶ 79–85.
130. Id. ¶¶ 86–87.
131. 5th Session of the Ad Hoc Working Group on Long-Term Cooperative Action Under the
UNFCCC Convention, Bonn, Germany, Mar. 28–Apr. 8, 2009, Climate Change, Migration, and
Displacement: Impacts, Vulnerability, and Adaptation Options (Feb. 6, 2009), available at
http://unfccc.int/resource/docs/2008/smsn/igo/031.pdf (last visited Mar. 9, 2011) [hereinafter 2009
Submission].
2011]
Nanda
377
They added that “[e]nsuring that migration and displacement triggered
by climate change are systematically considered and addressed by the
international community is our shared responsibility. This cannot be
achieved unless these consequences are duly acknowledged in the
successor-agreement to the Kyoto Protocol.”132
At the Sixteenth Conference of the Parties of the United Nations
Framework Convention on Climate Change at Cancún, Mexico, November
29 to December 10, 2010, the Ad Hoc Working Group on Long-Term
Cooperative Action under the Convention decided to undertake enhanced
action on adaptation and as part of that action included “[m]easures to
enhance understanding, coordination and cooperation with regard to climate
change induced displacement, migration, and planned relocation, where
appropriate, at national, regional and international levels.”133
Considerable research is currently being undertaken on climate
change, environment, migration, and displacement, by several United
Nations entities as well as professional groups,134 including the Climate
Change, Environment and Migration Alliance,135 the United Nations
University Institute for Environment and Human Security,136 and the
132. Id.
133. Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action
under the Convention, ¶ 14(f), Draft decision-/CP.16, available at http://unfccc.int/files/meetings/
cop_16/application/pdf/cop16_lca.pdf (last visited Mar. 9, 2011).
134. See U.N. DEVELOPMENT PROGRAMME, supra note 38; see also Informal Group on
Migration/Displacement and Climate Change of the IASC, Climate Change, Migration and
Displacement: Who will be affected? (Inter-Agency Standing Comm., Working Paper, Oct. 31, 2008),
available at http://unfccc.int/resource/docs/2008/smsn/igo/022.pdf (last visited Mar. 9, 2011); U.N.
System Side Event, Displacement and Migration: Examples of Initiatives to Support Resilience and
Adaptation, Cancun, Mexico, Nov. 30 2010, Towards a Shared Approach to Climate Change,
Displacement and Migration, available at http://www.iom.int/jahia/webdav/shared/shared/mainsite/activities/
env_degradation/Climate-Change-Displacement-and-Migration-Shared-Messages.pdf (last visited Mar.
9, 2011).
135. CCEMA is a partnership of organization and institutions—International Organization for
Migration, Munich Re Foundation, Stockholm Environment Institute, United Nations Environment
Programme, United Nations Office for the Coordination of Humanitarian Affairs, United Nations
University—Institute for Environment and Human Security, University of Sussex—Development
Research Centre on Migration, Globalisation and Poverty, and World Wildlife Fund. See, e.g., 2nd
Expert Workshop on Climate Change, Environment, and Migration, Munich, Germany, July 23–24,
2009, The Way Forward: Researching the Environment and Migration Nexus, available at
http://www.ccema-portal.org/file/get/5773 (last visited Mar. 9, 2011).
136. See, e.g., Research Workshop on Migration and the Environment: Developing a Global
Research Agenda, Munich, Germany, Apr. 16–18, 2008, Workshop Report, available at
http://www.ccema-portal.org/file/get/5774 (last visited Mar. 9, 2011).
378
[Vol. 17:2
Refugee Studies Center.137 As mentioned earlier, the World Migration
Report 2010 emphasizes migration-capacity building to effectively address
challenges arising from the effects of environmental change, and discusses
essential requirements for this purpose.138
IV. CONCLUSION
Projections for international migration are that it will continue to grow.
The two main reasons are globalization and demographic trends in several
developed countries for slow population growth, and for some states, such
as Japan and Russia, even shrinkage. On the supply side of the equation,
many developing states with meagre economic resources are witnessing an
ongoing population rise. This results in a lack of the needed absorptive
capacity for all those seeking work, and thus pushes some to move abroad.
In light of these trends and projections, the world community must remain
vigilant and determined in its quest for effective solutions to the myriads of
problems and challenges associated with international migration.
To the credit of the international community, it has created a
comprehensive international legal framework, primarily under the United
Nations leadership, to address issues pertaining not only to international
migrants in general, but also to the needs and protection issues of women
and children, and equally important, the struggles migrant domestic
workers face. The major challenge is to ensure that states implement the
existing norms and standards by incorporating them in their legislation, and
that their policies faithfully reflect these norms and standards in action.
137. See, e.g., Refugee Studies Centre, Climate Change and Displacement, 31 FORCED
MIGRATION REV. (2008) (U.K.), available at http://www.fmreview.org/FMRpdfs/FMR31/contents.pdf
(last visited Mar. 9, 2011).
138. World Migration Report 2010, supra note 1, at 74.
A “RE-VISIONED” FOREIGN DIRECT
INVESTMENT APPROACH FROM AN EMERGING
COUNTRY PERSPECTIVE: MOVING FROM A
VICIOUS CIRCLE TO A VIRTUOUS CYCLE
Rumu Sarkar*
I.
II.
III.
INTRODUCTION ................................................................................ 379
USING TRANSNATIONAL CAPITAL FLOWS TO SUPPORT
DEVELOPMENT OBJECTIVES ........................................................... 383
A. Bilateral Investment Treaties as a Form of Economic
Liberalism ............................................................................... 383
B. Reengineering BITs in the Future to Support Development
Goals ....................................................................................... 386
C. Sovereign Wealth Funds as a Co-Vehicle to Support a
Development Agenda .............................................................. 389
CONCLUSION ................................................................................... 392
I. INTRODUCTION
This Critical Essay sets forth and expands upon remarks presented at
the International Law Weekend 2010 in New York, New York, which
constitutes the annual meeting of the American Branch of the International
Law Association (ABILA). The presentation juxtaposed certain ideas in
order to create a new framework of analysis in the process. This discussion
is intended to explore the possibilities of uniting two disparate areas of
international investment law, namely Bilateral Investment Treaties (BITs)
and Sovereign Wealth Funds (SWFs) to serve a common purpose of
supporting development objectives. By interfacing these two approaches, it
may be possible to coordinate a policy agenda that supports development
objectives from an emerging country perspective rather than simply from
the standpoint of protecting a foreign investor.
*
This essay summarizes and expands the remarks made by the author at the 89th Annual
Meeting of the American Branch of the International Law Association, “International Law and
Institutions: Advancing Justice, Security and Prosperity,” held in New York, NY from October 21–23,
2010. The author’s remarks were made as part of a panel discussion held on October 22, 2010 entitled,
“How Does International Development Law Coexist with Traditional Sovereignty over Economic
Resources and Activities?” Dr. Rumu Sarkar is a former Adjunct Law Professor at the Georgetown
University Law Center, and the Senior Legal Advisor to CALIBRE Systems, Inc., a defense consulting
firm located in Alexandria, Virginia. She is the author of INTERNATIONAL DEVELOPMENT LAW: RULE
OF LAW, HUMAN RIGHTS & GLOBAL FINANCE (Oxford Univ. Press, 2009).
380
[Vol. 17:2
Further, it may be possible to set policy objectives to support
economic development in terms of the inflows of Foreign Direct Investment
(FDI) made possible by BITs and the FDI outflows made by SWFs. In
other words, it may be possible to create a dynamic between FDI inflows
and outflows in ways that support and further development-related goals in
the emerging country in question. Hopefully, this dynamic will help move
the emerging economy away from a potentially “vicious circle” between
inflows and outflows of FDI, and move it toward a “virtuous cycle”
between the two. While a foreign investment regime has many components
controlled by a number of different legal instruments and bilateral
agreements, for purposes of this discussion, this essay shall only consider
BITs in order to better focus on the underlying theme.
A BIT is simply an agreement between two countries, usually a
developed “home” country and a developing “host” country. BITs govern
several key aspects of both the promotion and protection of foreign
investments made in the host country by the home country.1 The plethora
of BITs is overwhelming: by 2006, over 2,600 BITs had been signed with
about seventy new ones being executed each year, according to the United
Nations Conference on Trade and Development (UNCTAD).2 In part, the
proliferation of BITs is a reaction to the absence of a multilateral instrument
that sets forth the parameters of FDI—this absence has created a vacuum.
The failed OECD Multilateral Agreement on Investment (MAI) proposed
and considered between 1995 and 1998 is one noteworthy example of this
failed attempt.3 This vacuum has been filled with an exponentially
increasing number of bilateral investment treaties in lieu of a single
multilateral one.
A BIT generally is composed of five basic provisions:
1)
2)
3)
4)
The scope of its application;
The conditions for the entry of new FDI;
The standards of treatment to be applied to foreign
investors;
The protections against expropriation; and
1.
Alec Johnson, Rethinking Bilateral Investment Treaties in Sub-Saharan Africa, 59 EMORY
L.J. 919, 919 (2010).
2.
ITUC Briefing Note on Bilateral Investment Treaties, http://gurn.c50-hosting.com/
en/topics/bilateral-and-regional-trade-agreementes/bilateral-investment-treaties/background/tilsbriefing-note-on-bilateral-investment-treaties (last visited Dec. 10, 2010).
3.
See OECD, Multilateral Agreement on Investment, http://www.oecd.org/document/
22/0,3343,en_2649_33783766_1894819_1_1_1_1,00.html (last visited Dec. 10, 2010).
2011]
Sarkar
5)
381
Investment dispute resolution usually by means of
4
providing for international arbitration.
The terms and conditions of a BIT represent a bargain between the two
contracting states insofar as the host country promises to protect the FDI
made by the home country. In exchange for the new (i.e., greenfield) or
increased FDI, the host country implicitly agrees to a diminution of its
sovereign authority by agreeing to protect the foreign investment against
state expropriation and regulatory takings, and by delegating judicial
authority to adjudicate disputes concerning the investment to international
arbitral bodies.5
This generally means that the host state, at the request of the investor,
must submit investment disputes, including the interpretation and
application of the BIT, to binding third party international arbitration.6
Further, most BITs also contain a provision that where the home state pays
compensation to one of its investors for losses covered under an investment
insurance program, the home state is subrogated to the rights of the investor
against the host state for the recovery of compensation for any losses.7
Why would a developing or an emerging country agree to a diminution
in its sovereign power by entering into a BIT? The answer is both
contextual and complex but, in general, many developing countries do not
have adequate domestic income and savings levels to support their incountry investment needs. Therefore, such countries must source their
capital needs from external sources of financing. Many lower income
developing countries are, in fact, heavily dependent on official development
assistance (from multilateral institutions such as the World Bank and
bilateral donors such as the U.S., U.K., Canada, and many others). Private
investment in the form of FDI is also sought after by emerging countries in
hopes that such capital investments will bring about greater economic
growth and prosperity.8 For example, an influx of foreign capital may help
fund new technologies and physical infrastructure (e.g., roads, bridges,
dams, telecommunications networks, airports, seaports, schools, hospitals)
as well as enlarge the existing human resource base by increasing
vocational training and by encouraging technology transfers. The FDI may
4.
Johnson, supra note 1, at 928–29; see also Kenneth Vandevelde, Investment Liberalization
and Economic Development: The Role of Bilateral Investment Treaties, 36 COLUM. J. TRANSNAT’L L.
501, 506–07 (1998).
5.
Johnson, supra note 1, at 924–25.
6.
Vandevelde, supra note 4, at 508.
7.
Id. at 509.
8.
Johnson, supra note 1, at 927.
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also enhance capital market growth by encouraging secondary trading of
shares in local stock markets.9
Whether entering into a BIT actually increases FDI overall is a
different matter. The academic literature seems to concur that there is no
positive correlation between signing a BIT and increased FDI flows.10
“Surprisingly, many analyses exploring the economic effects of BIT signing
has generally come to the rather discouraging conclusion that BIT treaties
are not associated with large increases in foreign investment.”11 Indeed,
“BITs do not appear to increase foreign investment flows, or to improve the
characteristics of the local investment environment in signatory
countries.”12
This is somewhat ironic and perhaps even disturbing since increasing
FDI appears to be the raison d’être of entering into a BIT. It begs the
question of whether entering into a BIT is in the best interest of the
emerging country in question, especially at the price of relinquishing
certain sovereign rights that it may have otherwise exercised. The focus of
BITs to date has really been on the protection of foreign investor rights
rather than on the needs of the emerging country. As such, BITs tend to be
9.
Deborah Swenson, Why Do Developing Countries Sign BITs?, 12 U.C. DAVIS J. INT’L L &
POL’Y 131, 131–32 (2005).
10.
It is unlikely that any causal connection between the conclusion of BITs and
increased foreign investment flows could ever be established using statistical
correlations. Because any impact that BITs have on investment flows may not be
immediate and because the majority of BITs are recent, insufficient time may
have elapsed to accurately measure the impact of BITs. Assuming that a
correlation between BITs and investment flows could be identified, the
correlation may be negative, since states that are having the greatest difficulty
attracting foreign investment may have the greatest incentive to conclude BITs.
Even if a positive correlation were found, there still would be serious difficulties
in demonstrating the direction of causation. First, the number of variables that
must be controlled is enormous, including presence of natural resources,
availability of inexpensive labor. status of physical infrastructure, level of
education of the work force, size of the market, proximity to other markets, and
political stability, to name a few. Second, even if one could control for [sic] all
the variable and demonstrate a statistically significant positive correlation
between the number of BITs and investment inflows, one still could not be certain
which variables were dependent and which independent.
Id. at 524–25. See also Johnson, supra note 1, at 926.
11. Deborah L. Swenson, Bilateral Investment Treaties and International Integration, 4
(University of California, Preliminary Draft, 2008), available at http://www.econ.ucdavis.edu/
faculty/dswenson/BITsIntegration08.pdf (last visited Mar. 24, 2011).
12.
Id. at 4–5.
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383
asymmetrical and unbalanced in nature, a point that will be addressed later
in the discussion.
BITs are, however, important legal instruments in ensuring
“investment neutrality” in two ways. First, BITs ensure that investors may
establish investments in the territory of the other investor on a co-equal
basis. In other words, there are no barriers to outward or inward investment
flows, thus guaranteeing the free movement of investment capital on a
cross-border basis.13
Second, the host state is prohibited from
discriminating against investments on the basis of national origin with
regard to the ownership or control of such investments.14 Most BITs grant
Most Favored Nation (MFN) status to the home state investment and
investors. In essence, therefore, BITs grant favorable treatment for foreign
investment on the basis of access, security, dispute resolution, and
transparency.15 While these measures are aimed at creating and preserving
investment neutrality, entering into BIT also signals something more
fundamental, as discussed below.
II. USING TRANSNATIONAL CAPITAL FLOWS TO SUPPORT DEVELOPMENT
OBJECTIVES
A. Bilateral Investment Treaties as a Form of Economic Liberalism
Entering into a BIT tends to signal a willingness to enter into an
internationally accepted investment framework that centers on protecting
foreign investments made in the host country. While merely signing a BIT
does not necessarily mean that systemic and overarching legal and other
market reforms are forthcoming, it at least provides concrete evidence that
the host government has considered foreign investment issues and has
committed to undertake (or refrain from) certain legal actions in relation
thereto.
In fact, entering into a BIT is a “shortcut” that provides foreign access
to captive emerging markets while hedging against the risks implicit in such
markets such as the likelihood of state expropriations, regulatory takings or
“creeping expropriation,” imposing export or currency controls, or having
to deal with a potentially weak, biased, inefficient or corrupt judicial
system.16 By providing substantive safeguards against these risks, and by
providing off-shore arbitration with respect to disputes arising from the
foreign investment, the market value of the investment is protected, at least
13.
Vandevelde, supra note 4, at 510–11.
14.
Id. at 511.
15.
Id. at 514.
16.
Id.
384
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in theory, thus allowing sufficient time in which the foreign investor may
expropriate (or in the best case scenario, reinvest) any profits made from
the venture.
Thus, a BIT may be regarded as an example of a bilateral instrument
of economic liberalization where the private property and contract rights of
the foreign investor are provided special protections. The host state agrees,
in effect, to protect the foreign investment from public interference, protects
against any discrimination against the nationality of the foreign investors
thereby promoting investment neutrality, and helps to facilitate the market
by encouraging unimpeded cross-border investment flows.17
More importantly, however, in this context, by signing a BIT, these
legal commitments are raised to the level of international law. By agreeing
to a free-standing, clear set of rules to govern foreign investment, the host
country substitutes its own domestic laws for a set of agreed upon
independent rules that are enforceable through international arbitration
before neutral and independent international arbitral bodies.18 In other
words, this substitutes a domestic regime for what is, in effect, an
international one, thereby sidestepping weak domestic laws and inefficient
judicial institutions that may not be able to adequately protect the foreign
investment.
Two separate issues stem from the above: first, entering into a BIT
signals an initiation into a liberal economic regime where the relation of the
state to the market is predicated on certain predetermined assumptions; and
second, while BITs may be an initiation into economic liberalism,
concluding a BIT does not actually establish an economically liberal
regime.19 While BITs may be designed to address market imperfections, it
does not address the underlying causes of such imperfections such as, the
lack of contract enforceability, weak and non-transparent financial markets,
inefficient judicial and enforcement mechanisms, and systemic corruption.
Generally speaking, many more steps may need to be taken by the host
country in order to create consistent and continued climate of economic
liberalism, and the failure to do so may ultimately render the BIT
ineffective in the long-term.20
As a self-proclaimed instrument of economic liberalism, BITs do,
indeed, tend to support the underlying philosophy of economic liberalism.21
By limiting the state’s power to interfere with private property and contract
17.
Id. at 505–06.
18.
19.
20.
Id. at 516.
21.
Id. 503–04.
2011]
Sarkar
385
rights, BITs support a basic tenant of liberal economic theory that the free
market, rather than the state, most efficiently allocates resources, and
therefore, the state’s interference with free market forces should be limited
in substantive ways. Further, the contractual bargain made between private
parties should be protected by and not interfered with by the state. Finally,
economic liberalism supports the belief that the state should intervene in
prescribed ways only where required in order to correct market failures, and
should do so in a manner that facilitates rather than impedes market
forces.22
This view of state power and its limits is fully consistent with the
laissez-faire approach historically taken by most advanced nations. In fact,
this view of the state’s powers and its appropriate roles may be perceived as
a view from without, that is to say, from the viewpoint of a foreign investor
from an advanced nation where this approach is implicitly understood, if
not actively supported. The views of emerging countries may not
necessarily be in full accord with approach as shall be discussed later with
respect to the underlying philosophy that may motivate SWFs.
Of course, BITs are bilateral instruments that are only a small part of a
foreign investment regime.23 Simply signing a BIT does not establish a
liberal economic regime—in order to create an enabling investment
environment, a new legal framework of domestic laws (e.g., contract, tax,
employment, environmental, intellectual property) may need to be
legislated, and domestic institutions may need to be created or strengthened
(e.g., stock markets, securities and commodities regulatory institutions,
environmental agencies, central bank, courts). Additionally, education and
public outreach measures may need to be undertaken so that the parameters
of the new regime are disseminated and understood by lawyers, judges, and
the public, including the investing public.
More importantly, however, the host country must move quickly and
efficiently to correct market distortions on its own in order to create a Rule
of Law-based economic and legal environment. Simply entering into BITs
with interested home countries will not be sufficient to achieve real
economic growth. For example, in Africa where FDI tends to be
concentrated in extractive industries, many countries are extremely
vulnerable to rises and falls in commodity prices, thus leading to extreme
fluctuations in FDI inflows and outflows.24 If systemic problems in the
underlying economic and legal framework are not addressed by the host
22.
Id. at 504–06.
23.
Id. at 515.
24.
386
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country, it may continue to be vulnerable to boom and bust cycles, thus
making sustainable economic development all the more illusory.
Entering into a BIT may be viewed as an opportunity to create a new
or revitalized investment regime by the host country. The foreign investor
should also view this opportunity as one in which to partner with the host
country in initiating systemic and sustainable change. However, there is a
broader opportunity that seems to be missing from this equation. While
BITs are ostensibly entered into by host countries in order to source new
avenues of FDI to promote economic development and encourage capital
growth, BITs are generally not explicitly tied to overall development
objectives of the host country. Of course, the host country in question must
also define its development objectives as a political prerogative—this is
something that no other country or multilateral institution can do for it.
However, because BITs and the whole discourse surrounding
them have become focused on foreign investment, they tend to
ignore important domestic considerations to the detriment of
home and host countries alike. While there exists a healthy
debate over the value of BITs to developing countries, most
studies—both by supporters who argue that BITs positively
impact FDI, and detractors, who claim that they do not—center
on foreign investment alone. . . . [It is argued] that BITs that
ignore important domestic issues forego real opportunities to
25
promote a host country’s sustainable economic development.
By moving away from a foreign investor-centered debate and moving
toward a host country-centered discussion, it may be more advantageous for
both home and host countries to become true partners in development, and
create overall sustainable investment and trade opportunities into the future.
Although BITs are not now specifically designed to support host country
development objectives, BITs may be reengineered to do so in the future.
In fact, there is already evidence that a movement in this direction is
already taking place.
B. Reengineering BITs in the Future to Support Development Goals
Changing the nature of BITs and the underlying motivation for
entering into one is an uphill battle. BITs, as a positivist instrument of
economic liberalism, implicitly resist the idea of imposing government
controls, restrictions, or performance-based criteria that modifies or
interferes with free market choices. The protection of international
investments and investors will remain a paramount consideration; however,
25.
Id. at 929.
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Sarkar
387
a more nuanced approach has been adopted fairly recently that changes the
parameters of BITs in significant ways. These changes may ultimately
support development objectives that could be shared by the home and the
host country alike.
Norway’s former draft model BIT26 provides an illustrative example of
a new emerging trend in more effectively balancing investor rights with
state rights to both regulate and protect human health, safety, international
labor rights, and the environment. In June 2009, Norway shelved its
consideration of a new draft model BIT proposed in December 2007, and
released for public comment on December 19, 2007. Nevertheless, certain
of its provisions dealing with corporate social responsibility, human rights,
and sustainable development are very useful in this context.27 The
Preamble reaffirmed Norway’s commitment to democracy, the rule of law,
human rights, and fundamental freedoms in accordance with their duties
under the United Nations Charter and the Universal Declaration of Human
Rights.28 It also notes the support of the signatory parties to both prevent
and fight corruption, including bribery in international trade and
investment.29
Article 24 of the model draft BIT (and now abandoned) states in
essence that nothing in the BIT shall prevent the Parties from adopting or
enforcing measures to protect the environment, support human rights,
control corruption, and support sustainable development generally.30 This
model BIT takes into account the needs of both developed and developing
countries, including the fair consideration of measures that protect the host
country.
Article 32 supports corporate social responsibility by specifically
encouraging Norwegian investors to “conduct their investment activities in
compliance with the OECD Guidelines for Multinational Enterprises and to
participate in the United Nations Global Compact.”31 While Norway’s draft
26. Damon Vis-Dunbar, Norway Shelves its Draft Model Bilateral Investment Treaty,
INVESTMENT TREATY NEWS (June 8, 2009), available at http://www.iisd.org/itn/2009/06/08/norwayshelves-its-proposed-model-bilateral-investment-treaty/ (last visited Dec. 11, 2010).
27.
Id.
28. American Society of International Law, International Law In Brief: Draft Model
Norwegian Bilateral Investment Treaty (Dec. 19, 2007), available at http://www.asil.org/
ilib080421.cfm (last visited Dec. 11, 2010).
29.
Id.
30. Agreement Between the Kingdom of Norway and [. . .] for the Promotion and Protection
of Investment (Draft Version 191207), art. 24, available at http://www.asil.org/ilib080421.cfm (follow
“Click here” hyperlink below Treaties, Agreements, and Related Documents) (last visited Mar. 24,
2011).
31.
Id. art. 32.
388
[Vol. 17:2
model BIT was abandoned due to stakeholder concerns voiced by NonGovernment Organizations and private businesses who felt that the model
BIT did not include sufficient protections for investors, it can be argued that
it was a step in the right direction.
Indeed, the 2004 U.S. draft model BIT demonstrates a promising new
direction. The Department of State and the Office of the United States
Trade Representative (USTR) were the lead agencies in an interagency
effort to update the U.S. model bilateral investment treaty.32 Article 10 of
the model treaty sets forth new provisions on transparency that provide, in
essence, that each party designate contact points, and that it notify the other
party of any contemplated changes that may affect the operation of the BIT,
and that it publish in advance any such measures, and provide the other
party a reasonable amount of time in which to comment on such proposed
changes.33
Further, Article 12(2) provides that:
Nothing in this Treaty shall be construed to prevent a Party from
adopting, maintaining, or enforcing any measure otherwise
consistent with this Treaty that it considers appropriate to ensure
that investment activity in its territory is undertaken in a manner
34
sensitive to environmental concerns.
Similarly, Article 13(1) provides that:
The Parties recognize that it is inappropriate to encourage
investment by weakening or reducing the protections afforded in
domestic labor laws. Accordingly, each Party shall strive to
ensure that it does not waive or otherwise derogate from, or offer
to waive or otherwise derogate from, such laws in a manner that
weakens or reduces adherence to the internationally recognized
35
labor rights. . . .
While the 2004 U.S. draft model BIT may lack the breadth of the 2007
Norway model BIT, there is a strong recognition that BITs are now a two32. U.S. State Department Press Statement, Update of U.S. Model Bilateral Investment Treaty
(“BIT”), BILATERALS.ORG (Feb. 5, 2004), http://www.bilaterals.org/spip.php?article137 (last visited
Dec. 11, 2010).
33. Treaty Between the Government of the United States of America and the Government of
[Country] Concerning the Encouragement and Reciprocal Protection of Investment, art. 10, 2004 Model
BIT, http://ustraderep.gov/assets/Trade_Sectors/Investment/Model_BIT/asset_upload_file847_6897.pdf
(last visited Dec. 14, 2010).
34.
Id. art. 12.
35.
Id. art. 13.
2011]
Sarkar
389
way street, and that the parties’ reciprocal legal obligations include being
cognizant of the environmental and social needs of the host country. Thus,
BITs can and have been reengineered to support development objectives of
the host country, and should be viewed as a dynamic and powerful bilateral
instrument in furthering those goals as mutually reinforcing obligations of
the parties.
C. Sovereign Wealth Funds as a Co-Vehicle to Support a Development
Agenda
The above discussion explained how BITs constitute a part of a liberal
economic regime that essentially curtails the power of the host state to
interfere with or impede private contractual and property relations.
However, this view of the state, previously characterized as a view from
without (i.e., a view of an advanced investor nation looking at a host
country), may not be shared in principle by emerging countries. The view
from within, so to speak, may be based on a widely different set of
philosophic assumptions.
For example, restraining the power of the state in protecting the rights
of the individual may be a viewpoint that is not necessarily shared by the
host state. Instead, the state may be viewed as the fountainhead of all rights
enjoyed by individuals.36 In other words, a liberal economic regime may
not necessarily be the desired outcome of establishing a new investment
climate from the perspective of an emerging economy—it may simply be
the by-product of it.37
While BITs create part of the legal framework governing the inflow of
FDI into a host country, SWFs are one means by which outflows of FDI are
made by the host country.38 SWFs are a state-owned investment fund
36. For a fuller discussion of the philosophic underpinnings of emerging countries, see RUMU
SARKAR, INTERNATIONAL DEVELOPMENT LAW: RULE OF LAW, HUMAN RIGHTS & GLOBAL FINANCE
33–73 (Oxford Univ. Press, 2009).
37.
Kenneth Vandevelde states rather empathically that:
[L]iberalization may not be essential to economic development. The recent
history with planned economies and import substitutions development policies
suggests, however, that states that choose an illiberal path have encountered
enormous difficulties with economic development beyond a certain point. In
short, states seeking to develop economically may have little alternative as a
practical matter but to embrace the kinds of policies that a BIT requires.
38. UNCTAD reports that SWFs invested USD $10.5 billion or 27% of their total FDI in
developing countries, mainly in Asia, with limited investments in Africa and Latin America. Over the
past two decades, SWFs have invested 73% of their assets in developed countries, principally in the
form of Foreign Portfolio Investment (FPI) in the financial services sector of developed countries. Press
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composed of financial assets such as, stocks, bonds, real estate, or other
financial instruments funded by foreign exchange assets. These assets may
include a balance of payments surpluses, fiscal surpluses, and/or receipts
resulting from commodity exports.39 While emerging countries with SWFs
are a small subset of developing countries overall, they do include places
such as Nigeria, Mauritania, Trinidad & Tobago, Indonesia, Vietnam, East
Timor, and Botswana.40
SWFs often suffer from the same type of bias as BITs—they are not
seen from the perspective of the originating country but from the
perspective of advanced nations. This view is imbalanced insofar as it does
not take into account the needs and objectives of the country originating the
SWF. In some ways, BITs represent the viewpoint of advanced investor
nations looking at emerging economies whereas SWFs represent the views
of emerging countries looking at advanced nations. Perhaps both may be
viewed as two sides of the same coin.
Ian Bremmer argues provocatively that, “the free-market tide has now
receded. In its place has come state capitalism, a system in which the state
functions as the leading economic actor and uses markets primarily for
political gain.”41 This may not be strictly the case since most SWFs are
generally composed of excess foreign currency reserves that are designed to
hedge against extreme volatility in foreign exchange and commodities
markets, to provide for liquidity in times of capital constraints faced by
emerging economies without having to resort to the International Monetary
Fund for immediate cash infusions, and to create a diversified portfolio of
assets for use by future generations.42
Release, United Nations Conference on Trade and Development, Sovereign Wealth Funds Beginning to
Play Major Role in Foreign Direct Investment through Mergers and Acquisitions,
UNCTAD/PRESS/PR/2008/037/Rev.1 (Sept. 24, 2008), available at http://www.unctad.org/
templates/webflyer.asp?docid=10478&intItemID=4697&lang=1 (last visited on Apr. 1, 2011). For a
discussion distinguishing FDI from FPI, see Levin Institute, State University of New York, What are the
Different Kinds of Foreign Investment? (2010), http://www.globalization101.org/index.php?file=
issue&pass1=subs&id=55 (last visited on Apr. 1, 2011).
39. Rumu Sarkar, Sovereign Wealth Funds as a Development Tool for ASEAN Nations: From
Social Wealth to Social Responsibility, 41 GEO. J. INT’L L. 621, 622 (2010).
40. Sovereign
Wealth
Fund
Institute,
Sovereign
http://www.swfinstitute.org/fund-rankings/ (last visited Dec. 11, 2010).
Wealth
Fund
Rankings,
41. Ian Bremmer, State Capitalism Comes of Age: The End of the Free Market?, 2 (Foreign
Affairs, Essay, May/June 2009), available at http://www.panzertruppen.org/2010/economia/mh002.pdf
(last visited Dec.11, 2010).
42. Sarkar, supra note 39, at 625; see also Efram Chalamish, OECD Global Forum on
International Investment: Protectionism and Sovereign Investment Post Global Recession, 3 (Dec. 7–8,
2009), available at http://www.oecd.org/dataoecd/31/22/44231385.pdf (last visited Dec. 11, 2010). In
fact:
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Sarkar
391
Bremmer also states that:
A third wave of state capitalism was marked by the rise of SWFs,
which by 2005 had begun to challenge Western dominance of
global capital flows. These capital reserves were generated by
the huge increase in exports from emerging market countries. . . .
A fourth wave of state capitalism has now arrived, hastened by
the recent global economic slowdown. But this time, the
governments of the world’s wealthiest countries, and not just
those of emerging-market countries, are the ones intervening in
their economies.
In the United States, lawmakers have
intervened in the economy despite the public’s historic mistrust
of government and its faith in private enterprise. Australia,
43
Japan, and other free-market heavyweights have followed suit.
This argument may point to an implicit tension between the
philosophies underlying the market capitalism approach of BITs and the
state capitalist oriented approach of SWFs. Whereas BITs are designed to
protect foreign investors’ interest, SWFs are designed to maximize foreign
investments made by emerging countries.
As Efram Chalamish explains:
It is important to note that SWFs have been criticized by their
own home states as well for being over-diversified and investing
extensively in the West, especially in Western financial
institutions. Most of these financial investments have generated
significant losses during the 2008 financial crisis to many SWFs
and, indirectly, to the governments of their home countries.
Many of these investments are perceived as outside of the core
investment strategy of most SWFs and many local conservative
voices have called for investing conservatively and mainly in the
44
geographical region of the respective fund.
[d]uring the financial crisis, France launched a Euro 20 billion SWF in 2009 with
the ostensible aim of protecting national strategic companies from ‘foreign
predators’—the very accusation leveled at sovereign funds from Asia and the
Middle East. This is despite the fact that the objective condition for establishing a
SWF—higher current account surpluses and strong basic commodity exports—
are missing in France.
Kalvajit Singh, Fixing Global Finance: A Developing Country Perspective on Global Financial
Reforms, 47 (2010), available at http://www.madhyam.org.in/admin/tender/FGF2510.pdf (last visited
Dec. 15, 2010).
43.
Bremmer, supra note 41, at 6.
44.
Chalamish, supra note 42, at 4.
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[Vol. 17:2
While the scope, impact, and political implications of SWFs fall
outside the scope of this critical essay, FDI flows, both inflows regulated by
BITs and outflows of FDI made vis-à-vis SWFs may be used to support
development objectives. In other words, the FDI invested through BITs,
and the profits generated by portfolio earnings of SWFs, may both be used
to support development goals of the emerging country. This approach may
be viewed as an opportunity to create a development-based “virtuous
cycle.”
Specifically, a percentage of SWF-generated profits or dividends could
be set aside to support pre-defined and well-defined development objectives
in the host country. Such public expenditures of profits could go to support
physical infrastructure in terms of roads, airports, seaports,
telecommunications, as well as social infrastructure in terms of schools,
hospitals, and social welfare programs. In other words, a small percentage
of the profits generated by SWFs may be used to dovetail with and
financially bolster FDI-supported projects in the host country. This
dynamic should both encourage the free flow of cross-border capital and
create legal conditions for investor neutrality. This mutuality of obligation
among the parties, including foreign investors, may actually help deepen
and strengthen global capital markets.
Additionally, new BITs are constantly being negotiated and executed,
and may be re-tooled along the lines discussed above to reflect the new
development-based priorities of the host country. This undertaking should,
in principle, be supported by the home country (foreign investor) with the
long-term perspective of creating better and more stable global trade and
capital markets. Thus, both BITs and SWFs may be seen as co-vehicles for
supporting the development objectives of the host country, despite their
different philosophic underpinnings. It is also a means for an emerging
country to avoid the vicious circle of “boom and bust” foreign exchange
earnings and expenditures, and move toward the “virtuous cycle” of
creating development-based opportunities and sustainable economic
growth.
III. CONCLUSION
In sum, policy coordination between FDI inflows and outflows,
viewed from the perspective and needs of emerging countries, may better
support development objectives, facilitate more efficient cross-border
investment flows, and create a stronger global foreign investment regime in
the future.
THE MOON AGREEMENT AND PRIVATE
ENTERPRISE: LESSONS FROM INVESTMENT
LAW
Timothy G. Nelson*
I.
II.
III.
IV.
V.
VI.
INTRODUCTION ................................................................................ 393
THE RISE AND FALL OF THE MOON AGREEMENT ........................... 394
A. Genesis of the Moon Agreement.............................................. 394
B. The Hostile Reception ............................................................. 395
C. Comparisons with UNCLOS III’s Sea-Bed Regime ................ 399
D. The Demise of the Moon Agreement ....................................... 401
THE NEED FOR A REVISED TREATY REGIME................................... 403
PRACTICAL PRECEDENTS FOR A FUTURE TREATY SYSTEM ............ 405
A. The Revised Sea-Bed Regime as Contained in the 1994
Agreement on Part XI.............................................................. 405
B. The 1988 Antarctic Mineral Resources Treaty ....................... 406
C. The ITU System for Regulating Geostationary Orbital Slots .. 407
1. The Space Station Agreement ......................................... 410
2. Investment Protection Treaties and Free Trade
Agreements ..................................................................... 410
POSSIBLE INVESTMENT PRINCIPLES FOR A NEW MOON
AGREEMENT .................................................................................... 413
CONCLUSION ................................................................................... 415
I. INTRODUCTION
The year 2009 marked two events of interest to those with an interest
in lunar exploration. First, there was the discovery by the National
Aeronautics and Space Administration (NASA) of large quantities of water
on the moon.1 Second, there was the release of Duncan Jones’ film
*
B.A. L.L.B. (UNSW 1990), B.C.L. (Oxon. 1997). Mr. Nelson is a Partner in the
International Litigation and Arbitration practice group of Skadden, Arps, Slate, Meagher & Flom LLP.
The views expressed herein are solely those of the author and are not those of his firm or the firm’s
clients. This paper reflects comments delivered at the ABILA/ASIL Internaitonal Law Weekend on
October 23, 2010. The author thanks his fellow panelists Henry Hertzfeld and Rafael Moro Aguilar for
their comments and insights during that session, as well as Gunjan Sharma, Associate of Skadden, Arps,
for his help in finalizing this article.
1.
“NASA scientists discovered that the moon contains water, a ‘significant amount,’ said
Anthony Colaprete, who oversaw the Lunar Crater Observation and Sensing Satellite mission. He said
NASA found enough water to fill a dozen two gallon buckets.” Ashley Jones, There’s Water on the
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“Moon,” which imagines a future where large quantities of Helium-3 are
harvested and sent back to earth to be used in clean nuclear fusion, solving
the world’s energy and environmental problems—but requiring Sam
Rockwell’s character, the solitary miner, to work under somewhat
inequitable conditions imposed by his employer, Lunar Industries.
Science-fiction aside, if outer space resources are exploited in the
future, it seems quite likely that private companies will be involved in the
endeavor. This is not to suggest an unregulated “Wild West” of the kind
encountered in films like “Outland” or a dystopian future of the kind shown
in the film “Moon;” but the fact remains that, for the last few decades,
private capital has driven most forms of technological innovation and largescale investment, and, even after the 2008 financial crisis, continues to play
a leading role in the world’s economic development. Suggested below are
a few ideas on how the current legal instruments concerning lunar
exploration can be improved to encourage private enterprise in this field.
II. THE RISE AND FALL OF THE MOON AGREEMENT
A. Genesis of the Moon Agreement
The Moon Agreement of 1979 (Moon Agreement)2 is the last in the
initial series of Space Law treaties, of which the 1967 Outer Space Treaty3
is perhaps the high-water mark. The Moon Agreement applies not only to
Moon, but Who Owns It?, WALL ST. J. LAW BLOG (Nov. 18, 2009), http://blogs.wsj.com/law/
2009/11/18/theres-water-on-the-moon-but-who-owns-it/ (last visited Feb. 24, 2011).
2.
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies,
G.A. Res. 34/68, U.N. Doc. A/RES/34/68 (Dec. 5, 1979), reprinted in 18 I.L.M. 1434 (1979)
[hereinafter Moon Agreement].
3.
Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies, entered into force for the United States,
Jan. 27, 1967, 18 U.S.T. 2410 (entered into force Oct. 10, 1967), available at
http://www.unoosa.org/pdf/publications/STSPACE11E.pdf (last visited Mar. 25, 2001) [hereinafter
Outer Space Treaty]. 98 States have ratified, and an additional 27 have signed, the Outer Space Treaty
(as of Jan. 1, 2008). It provides the basic ground rules for space law, including that:
(1)
(2)
(3)
(4)
(5)
Id.
Space exploration shall be carried out for the benefit of all mankind, in
recognition that space is “the province of all mankind;”
Outer space is not to be weaponized;
Outer space cannot be the subject of sovereign claims;
States shall have “responsibility” for their space activities (including the
activities of non-governmental actors who are nationals of those states);
and
The moon and other celestial bodies shall be used exclusively for peaceful
purposes.
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Nelson
395
the Moon itself, whose riches are vast enough,4 but to “other celestial
bodies;” thus, potentially covering the planets and asteroids, whose mineral
potential is almost infinite.5 Despite its ambitious spatial coverage, many of
the provisions of the Moon Agreement do no more than restate the 1967
principles as being applicable to “the moon and other celestial bodies”6 or
contain similarly anodyne statements about freedom of research and
exploration or the absence of national sovereignty over outer space.7
B. The Hostile Reception
One of the apparent driving factors for its rapid finalization and
adoption in 1979 was the anxiety of Soviet Bloc states over the
4.
Standing alone, the value of the water on the Moon is considerable as it might sustain a
future human community there. “For future lunar colonists, this lunar water is more precious than
gold.” Kevin V. Cook, The Discovery of Lunar Water: An Opportunity to Develop a Workable Moon
Treaty, 11 GEO. INT’L ENVT’L L. REV. 647, 651 (1999). The H-3 deposits are “potentially [even] more
valuable.” Id. at 652.
5.
The Moon, planets and asteroids have been said to contain “aluminum, calcium, carbon,
chromium, gold, hydrogen, iridium, iron, magnesium, manganese, nickel, nitrogen, oxygen, platinum,
silicon, titanium and water.” Heidi Keefe, Making the Final Frontier Feasible: A Critical Look at the
Current Body of Outer Space Law, 11 SANTA CLARA COMPUTER & HIGH TECH L.J. 345, 362 (1995).
One asteroid alone is said to contain approximately $1 trillion worth of iron, nickel, cobalt and platinum.
See Cook, supra note 4, at 653. In terms of its sheer physical scope, therefore, the Moon Agreement
could rightly be characterized as “the most far reaching international agreement ever written.” Art Dula,
Free Enterprise & The Proposed Moon Treaty, 2 HOUS. J. INT’L L. 3, 3 (1980).
6.
For example, Article 2 of the Moon Agreement, providing that “[o]uter space, including
the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by
means of use or occupation, or by any other means,” simply reaffirms Article II of the Outer Space
Treaty. The provisions guaranteeing against militarization of the Moon or celestial bodies likewise
mirror Article IV of the Outer Space Treaty. See also Dula, supra note 5 at 6 n.14 (summarizing the
provisions of the 1967 Treaty that mention the Moon).
7.
Article 11(2) of the Moon Agreement, stating that “[t]he moon is not subject to national
appropriation by any claim of sovereignty, by means of use or occupation, or by any other means,”
simply elaborates on the principle stated in the Outer Space Treaty that outer space cannot be the subject
of national sovereign claims. Indeed, the non-sovereignty principle is broadly in line with the Law of
the Sea Convention’s principle that “[n]o State shall claim or exercise sovereignty or sovereign rights
over any part of the [sea-bed].” United Nations Convention on the Law of the Sea, art. 137(1), Dec. 10,
1982, 1833 U.N.T.S. 397 [hereinafter LOSC]. The non-sovereignty principle also lines up with the
current “freeze” or exercise on territorial claims over the Antarctic. See Antarctic Treaty, art. 4(2), Dec.
1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71 (providing that the state parties shall not make any new claim
to sovereignty over Antarctica). Article 11(3) of the Moon Agreement, providing that the landing of
space vehicles or building of installations on the Moon shall not give rise to ownership rights “over the
surface or the subsurface of the moon or any areas thereof,” is reasonably consistent with the nonsovereignty principle—although it is perhaps disappointing that the Moon Agreement does not afford
assurances that future owner/operator of those “buildings and installations” has the right to continuous
use, occupation and enjoyment of those facilities.
396
[Vol. 17:2
militarization of space. Those anxieties were partially assuaged by the
provisions of Article 3, which “reaffirmed the demilitarization of the moon
and [celestial] bodies.”8 When Western critics examined its text, however,
it was not these provisions, but instead the economic provisions, that
sparked controversy. Specifically, Article 11(1) of the Moon Agreement,
stating that the natural resources of the Moon were the “common heritage
of mankind,”9 was seen as a road to the socialization of the Moon.
There is an irony here. The formula “common heritage of all
mankind” was not, as is commonly supposed, a creation of the Soviet Bloc;
rather it was devised by Argentinian lawyers who believed, perhaps
reasonably, that the prior formula “province of all mankind” was unduly
vague and that a new formula was needed to reflect the concepts of
“beneficial domain which includes enjoyment, profit and receipt of
fruits.”10 This formula then was embraced by the Nixon administration in
1972,11 over the strong opposition of the Soviet Bloc.12 Small wonder that
the chief U.S. negotiator expressed bewilderment when the phrase came
under attack.13
8.
BIN CHENG, STUDIES IN INTERNATIONAL SPACE LAW 362 (Clarendon Press 1997) (noting
that, although “it can only be a matter for speculation what supplied the political will” for the
“seemingly barren and frustrating labour of seven years [of Moon Agreement negotiations] suddenly to
bloom and fruit all within the span of fifteen days,” the “answer” may be found in the fact that the
second Strategic Arms Limitation Treaty (SALT-II) was finalized at almost exactly the same time).
9.
Article 11(1) provides that “[t]he moon and its natural resources are the common heritage
of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5
of this article.” See Moon Agreement, supra note 2, art. 11(1).
10. Maureen Williams, The Common Heritage of Mankind and the Moon Agreement:
Economic Implications and Institutional Arrangements, in PROCEEDINGS OF THE 24TH COLLOQUIUM ON
THE LAW OF OUTER SPACE 87 (Int’l Inst. of Space Law, Sept. 1981).
11. See generally Carl Q. Christol, The Common Heritage of Mankind Provision in the 1979
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 14 INT’L LAW.
429, 454–65 (1980) (describing development of “common heritage of mankind” principle during treaty
negotiations).
12. “Until July of 1979, the Soviet Union maintained strong opposition to the common
heritage concept, and it was essentially because of this opposition that the [Moon] Treaty was not
concluded several years [before 1979].” Marian L. Nash, U.S. Practice, 74 AM. J. INT’L .L. 418, 423
(1980) (quoting then Secretary Cyrus R. Vance). Instead, the Soviet Union preferred the view that
space was “an international area for common use, ‘a position that has been described as’ just a watered
down version of res nullius” that necessarily “rejected any limitation on their use of space resources.”
David Everett Marko, A Kind, Gentler Moon Treaty: A Critical Review of the Current Moon Treaty and
a Proposed Alternative, 8 J. NAT. RES. & ENVT’L L. 293, 312 (1992–93).
13. See, e.g., International Space Activities, 1979: Hearings Before the Subcomm. on Space
Science & Applications of the H. Comm. on Science & Technology, 96th Cong., 95–96 (1979)
(statement of S. Neil Hosenball, U.S. Representative to the 1979 Session at the U.N. Comm. on the
Peaceful Uses of Outer Space and Gen. Counsel, Nat’l Aeronautics and Space Admin.) [hereinafter
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397
No matter, over time the notion that certain resources (such as the
moon, or the deep sea-bed, or the Antarctic) are the “common heritage of
mankind” was aggressively embraced by developing nations,14 and thus
came to acquire socialist connotations.15 It did not matter that the phrase
itself was relatively benign, if not meaningless; politics abhors a vacuum
and it was soon given a meaning. Specifically, “[t]he developing nations
interpret[ed the concept] to embody the principle that celestial body
resources are the common property of all the nations, and to require
international control of celestial body resources for the purpose of
redistributing wealth and technology among nations.”16 This was in
diametrical opposition to the supposedly “laissez faire” interpretation that
the United States had previously advanced.17
House Subcommittee Hearings]. “I don’t think that [the ‘common heritage of mankind’] is a defined
term, and I think people are overly concerned with the definition.” See Nash, supra note 12, at 425
(quoting then Assistant Secretary of State for Congressional Relations J. Brian Atwood as stating that
“neither the ‘common heritage of mankind’ concept as embodied in the Moon Treaty nor any other
provision of the Treaty compels any specific form of international arrangement for the regulation of the
exploitation of moon or other celestial body resources”).
14. The movement to treat Antarctica as part of the “common heritage of mankind” began
with a proposal by Malaysia in 1982, and gained traction during the 1980s among members of the socalled “non-aligned movement” and “Group of 77” developing nations. See Moritaka Hayashi, The
Antarctica Question in the United Nations, 19 CORNELL INT’L L.J. 275, 275–76 (1986). Some of its
proponents argued that the “common heritage” concept required a “sharing of benefits by all mankind”
of resources extracted from Antarctica. See id. at 287–88. The “common heritage” question, insofar as
Antarctica was concerned, receded greatly in 1991, when the Antarctic Treaty System members agreed
on a long-term moratorium on mining in the Antarctic.
15. See Marko, supra note 12, at 310 (The developing states “h[eld] the notion that the Moon
is common property, res communis, and that taking property declared to be the common heritage of
mankind is stealing.”) (footnotes omitted).
16. Alan Duane Webber, Note, Extraterritorial Law on the Final Frontier: A Regime to
Govern the Development of Celestial Body Resources, 71 Geo. L.J. 1427, 1436–37 (1983) (footnote
omitted); see also id. at 1445 (“The Moon Treaty, like [Part XI of LOSC], will probably be interpreted
as requiring developers to share their profits and technology with the lesser-developed countries.”);
House Subcommittee Hearings, supra note 13, at 134 (statement of Marnes A. Dubs, Chairman,
American Mining Congress Committee on Undersea Mineral Resources) (The common heritage concept
represents a system where there is “complete international control over access to, and the disposition of
important natural resources so as to effect the transfer of wealth, technology and political control from
the industrialized countries to the developing countries.”).
17. Webber, supra note 16, at 1437. The United States position, of course, always
presupposed a degree of regulation: as formulated by President Nixon during the sea-bed negotiations,
it envisaged “that all resources in the deep seabed should be regarded as the common heritage of
mankind, to be held in trust by the adjacent coastal state, with the revenues of the trusteeship to be
apportioned between the trustee and an international seabed authority.” Grier C. Raclin, From Ice to
Ether: The Adoption of a Regime to Govern Resource Exploitation in Outer Space, 7 NW. J. INT’L L. &
BUS. 727, 738 (1986).
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To be sure, the Moon Treaty does not prohibit (and thus implicitly
permits) private lunar exploration. Moreover, it does not expressly ban the
use of lunar minerals for profit, and it allows private actors “to keep title to
any private property which they might bring to the moon.”18 But this
implicit acceptance of private lunar exploration was subject to a proposed,
yet-to-be-established “international regime” to “govern the exploitation of
the natural resources of the moon as such exploitation is about to become
feasible.”19 And, while some of the stated principles of the future regime
(such as “orderly and safe development of the natural resources of the
moon,” and the “rational management” of the moon and the “expansion” of
exploitation) were unobjectionable, the last of the regime goals proved
controversial. It stated that this regime would seek to bring about:
An equitable sharing by all States Parties in the benefits derived
from those resources, whereby the interests and needs of the
developing countries, as well as the efforts of those countries
which have contributed either directly or indirectly to the
20
exploration of the Moon, shall be given special consideration.
Opponents predicted that this new authority would likely be a body in
which developed countries would potentially be outnumbered and outvoted;
and therefore, as a body predominantly controlled by developing countries,
this new authority would insist on technology transfer and payment of
international taxes as part of the new “regime” of lunar exploration.21
Compounding this all was that the “regime” was only to emerge after
it had been determined that exploitation of lunar resources was proven to be
18. Brian M. Hoffstadt, Moving the Heavens: Lunar Mining & the “Common Heritage of
Mankind,” in the Moon Treaty, 42 UCLA L. REV. 575, 586 (1994). Mr. Hoffstadt also suggests that
“the Treaty grants ownership to any natural resources on the moon’s surface that are no longer in place”
and might therefore permit retention of profit from “minerals which are mined” there. Id. He stresses,
however, that these features need to be read in conjunction with the rules regarding an international
“regime,” which might have the ability to regulate and prohibit such mining activities through “ex post
facto restrictions on mining and profit-keeping.” Id. at 590.
19. Moon Agreement, supra note 2, art. 11(5); see also id. art. 11(6) (“In order to facilitate the
establishment of the international regime . . . States Parties shall inform the Secretary-General of the
United Nations as well as the public and the international scientific community, to the greatest extent
feasible and practicable, of any natural resources they may discover on the Moon.”); id. art. 18 (This
article provides that, at any time after the fifth anniversary of the agreement coming into force, there
shall be a “review conference” to “consider the question of the implementation” of the international
regime.). The projected “review conference” apparently has not occurred.
20. Id. art. 11(7); see also id. art. 11(8) (“All the activities with respect to the natural resources
of the Moon shall be carried out in a manner compatible with the purposes specified in paragraph 7 of
this article and the provisions of article 6, paragraph 2, of this Agreement.”).
21.
See Cook, supra note 4, at 667.
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Nelson
399
“feasible.”22 This awkward timing meant that an international authority
would impose its rules “in the middle of the figurative game,” i.e., after
potentially expensive feasibility studies had been conducted.23 Combined
with the politically ambiguous nature of the “regime,” this created the
specter of a private actor, having spent millions (or billions) on research on
exploration and prospecting, suffering “‘ex post facto’ appropriation of
their investments by a nebulous future international regime” with power to
tax or veto any future exploitation of the very resources the private actor
had just located.24
C. Comparisons with UNCLOS III’s Sea-Bed Regime
Moon Agreement critics could point to the law of the sea for a
concrete example of how a “regime” based on “common heritage” might
work in practice. Throughout the 1970s, the United Nations Third
Conference on the Law of the Sea (UNCLOS III) was drafting a new Law
of the Sea Convention. A Sea-Bed Committee was responsible for drafting
an entire chapter of the new treaty to regulate the exploitation of the deep
sea-bed.25
In 1978, a draft of the proposed Law of the Sea Convention was
released, including a Part XI drafted by the Sea-Bed Committee. As
proposed (and as later adopted by the final 1982 session of UNCLOS III),
this text declared the sea-bed to be “the common heritage of mankind.”26
By now, some delegates had definite views on what this meant. To quote
Sri Lanka’s delegate, “[i]f you touch the nodules at the bottom of the sea,
you touch my property. If you take them away, you take away my
property.”27 And, as “operationally defined” by the originally-drafted
UNCLOS Convention, “[common heritage of mankind] mean[t] that all
nations [were] entitled to share in the profits derived from sea-bed
22.
Moon Agreement, supra note 2, art. 11(5).
23. Benjamin D. Hatch, Dividing the Pie in the Sky: The Need for a New Lunar Resources
Regime, 24 EMORY INT’L L. REV. 229, 252 (2010).
24. D. Goedhuis, Some Recent Trends in the Interpretation and the Implementation of the
Rules of International Space Law, 19 COLUM. J. TRANSNAT’L L. 213, 232 (1981) (citing arguments
being made by “opponents of the present Moon regime”).
25. See EDWARD L. MILES, GLOBAL OCEAN POLITICS: THE DECISION PROCESS AT THE THIRD
UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA 1973–1982, 45–48 (1988).
26.
LOSC, supra note 7, art. 136.
27. Statement of Ambassador M.C.W. Pinto of Sri Lanka, Alternatives in Mining, LAW OF THE
SEA INSTITUTE (Workshop at the Univ. of Hawaii, Dec. 11–14, 1978), reprinted in FABIO TRONCHETTI,
THE EXPLOITATION OF NATURAL RESOURCES OF THE MOON AND OTHER CELESTIAL BODIES—A
PROPOSAL FOR A LEGAL REGIME 57 (F.G. von der Dunk ed., vol. 4, 2009).
400
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resources, regardless of their contribution of capital or technology to the
extraction of those resources.”28
Part XI as proposed in 1978 provided for the establishment of an
International Sea-Bed Authority (ISB Authority) to regulate and authorize
exploitation of minerals on the international sea-bed, and to collect and
distribute royalties from this activity. The ISB Authority had the power to
license private operators to engage in sea-bed mining as long as:
(1)
(2)
(3)
Private operators pay a series of application fees and
royalties to the Authority;
There be established an “Enterprise,” to operate as a
wholly-owned organ of the public Authority, which would
have equal access to the sea-bed and operate alongside
private operators; and
Any private operator would be subject to mandatory
technology transfers, in that they would be forced to share
their proprietary technical information with the Authority
29
and the Enterprise.
The ISB Authority was required to provide for the “equitable sharing” of
benefits from sea-bed mining and to show special consideration for the
interests of developing states.30
The 1978 draft text of the UNCLOS III attracted immediate opposition
from critics within the United States. They objected not only to the
economic structure of the Part XI regime (which they considered to be too
bureaucratic and unfriendly to private capital), but also pointed out that, as
drafted, the ISB Authority’s “one-nation-one-vote” rule would mean that
“the developing countries and the Eastern Bloc” would have “control[led]
licenses to exploit and use the deep sea-bed resources.”31 This, plus the
“expensive” licensing fees, “cumbersome” licensing procedures, and
ceilings on output, were said to “deter development of the oceans’
resources.”32
Fears that the Moon Agreement’s regulatory “regime” might resemble
the Part XI sea-bed regime fueled its opponents’ arguments.33 To quote
then-Congressman John Breaux:
28.
Webber, supra note 16, at 1439.
29.
See LOSC, supra note 7, arts. 140(2), 144(1), 160(2)(f)(i).
30.
Id. art. 140(2).
31.
Raclin, supra note 17, at 744; Webber, supra note 16, at 1439.
32.
Marko, supra note 12, at 318.
33. See Kevin B. Walsh, Controversial Issues under Article XI of the Moon Treaty, 6 ANNALS
AIR & SPACE. L. 489, 496 (1981).
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The long-term economic implications for the United States would
be extremely adverse, if the United States were to repeat in the
outer space context the mistakes committed with regard to the
deep sea-bed. . . . I believe that for the United States to accept the
kind of situation presaged by the draft Moon Treaty is to invite a
34
serious erosion of our international community.
Other critics were even more explicit, seeing the Moon Agreement as
“socializing the moon.”35
D. The Demise of the Moon Agreement
Defenders of the Moon Agreement argued that comparisons with the
sea-bed regime were misplaced, and that it would not necessarily serve as a
wealth-redistribution body. They stressed that the concept of “[e]quitable”
division (as stated in Article 11) was “not the same as ‘equal,’” signifying
that private operators might still be able to operate profitably within the
future international regime.36 But the drafters of the Moon Agreement had
done themselves no favors. The treaty text had “fail[ed] to clarify the
vague requirements” of this future regime, thus allowing critics to interpret
it uncharitably.37
Defenders of the treaty also took umbrage at suggestions that the treaty
imposed a “moratorium” on lunar development. They were technically
correct, in that the Moon Agreement does not expressly place a legal
moratorium on exploitation of lunar resources. Nevertheless, as many
commentators note, it contained so many “ambiguities, significant
restrictions and future commitments,” and therefore created such
34. House Subcommittee Hearings, supra note 13, at 141 (statement of U.S. Rep. John
Breaux); see also Letter from Senators Frank Church & Jacob Javits to Secretary of State Cyrus R.
Vance (Oct. 30, 1979), reprinted in CITIZEN ACTION FOR GLOBAL CHANGE: THE NEPTUNE GROUP AND
THE LAW OF THE SEA 124 (Syracuse Univ. Press) (1999) (stating that the “interpretation of the ‘common
heritage’ [in the Law of the Sea Convention] . . . does not conform to the national interests of the United
States or other countries with free enterprise/free market economies” and repeating these concerns with
respect to the Moon Agreement).
35. J.M. Spectar, Elephants, Donkeys or Other Creatures? Presidential Election Cycles &
International Law of the Global Commons, 15 AM. U. INT’L L. REV. 975, 1031 (2000) (citation
omitted).
36.
Williams, supra note 10, at 88.
37. Cook, supra note 4, at 667; see also Marko, supra note 12, at 315 (noting that, whatever
the content of the treaty itself, “[t]he commercial and psychological beliefs of developed countries have
doomed the treaty” by creating the expectation that it will be used for wealth-distribution).
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uncertainty, that no rational private actor would invest in this legal
climate.38
In sum, the treaty had been “hastily and hence poorly put together”39
and was easy prey for the new wave of free-enterprise critics who saw it as
embodying the kind of 1970s ideology they were determined to sweep
away.40 And it was these kinds of concerns, voiced during the Senate
hearings on the Moon Agreement, that led the Carter Administration to
consign it to inter-agency review,41 and for the Reagan Administration to
abandon it.42 The Moon Agreement has since acquired only a handful of
ratifications.43
38. Walsh, supra note 33, at 496; see also D. Goedhuis, supra note 24, at 232 (“[O]pponents
of the present Moon regime . . . further submitted that free enterprise institutions simply cannot make
significant investments in space where there is a threat of suit over treaty terms of ‘ex post facto’
appropriation of their investments by a nebulous future international regime.”); Webber, supra note 16,
at 1445 (“Private enterprise would not be likely to make large investments in extraterrestrial resource
development if it feared that once investments had made exploitation feasible an international regime
would take control and distribute a portion of the profits among all nations.”); House Subcommittee
Hearings, supra note 13, at 108 (statement of Leigh S. Ratiner, on behalf of the L-5 Society) (arguing
that the Moon Treaty effectively imposed a “de facto moratorium on private enterprise use of [outer]
space in connection with the development of natural resources”).
39.
CHENG, supra note 8, at 357.
40. Dula, supra note 5, at 23 (“[T]he Moon Treaty is a dangerous and unnecessary
abandonment of the basic legal rights free enterprise will need to work effectively in space. [It]
introduces substantial uncertainty and risk for private sector investment in space ventures that would
exploit space resources for profit.”); House Subcommittee Hearings, supra note 13, at 107 (statement of
Leigh S. Ratiner on behalf of the L-5 Society) (“The moon treaty is a give away of unprecedented
proportions for which the U.S. obtains nothing in return.”).
41. Spectar, supra note 35, at 1033 (describing the process by which the Carter administration
shelved the treaty).
42. The first Reagan Secretary of State, Alexander Haig, was among the more trenchant
opponents of the Moon Treaty. In 1979, as President of United Technologies he testified before
Congress that the common heritage concept was being used by developing countries to “gain control
over critical materials and to gain access as a matter of right to the technology needed to exploit them”
and that ratification therefore “would doom any private investment directed at space resource
exploration.” House Subcommittee Hearings, supra note 13, at 219–20 (statement of Alexander Haig,
President, United Technologies Corp., Inc.). As Secretary of State, Mr. Haig “presided . . . over the
dismantling of American support for the Moon Treaty.” Marko, supra note 12, at 312 n.129.
43. As of today, only 13 States—Australia, Austria, Belgium, Chile, Kazakhstan, Lebanon,
Mexico, Morocco, the Netherlands, Pakistan, the Philippines, Poland, and Uruguay—have ratified the
Moon Agreement. U.N. Office for Outer Space Affairs, Status of Agreements Relating to Activities in
Outer Space as at January 1, 2008, U.N. Doc. ST/SPACE/11/Re.2/Ad.1 (2008), available at
http://www.unoosa.org/pdf/publications/ST_SPACE_11_Rev2_Add1E.pdf (last visited Feb. 24, 2011).
In addition, France, Guatemala, India and Romania have signed it. Moreover, “[a]rguably, the
agreement should be given little weight as evidence of developing customary law, since, in contrast to
other ‘space law’ agreements that have achieved widespread ratification, the Moon Agreement has, over
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Looking back, it is difficult to disagree with Professor Goedhuis’
observation that the final text of the Moon Agreement should not have been
“rushed through the United Nations in a great hurry before a consensus on
the exact meaning and content of the concept of the moon and its natural
resources being the common heritage of mankind had been achieved.”44
III. THE NEED FOR A REVISED TREATY REGIME
Assuming, as a policy matter, that private capital needs to be better
incentivized in the future of lunar resources development, what legal
reforms might assist this?
Some might advocate a totally unregulated environment where
operators take what they find. This has superficial attraction for those
concerned with the disincentives and “free riders” associated with the
common heritage concept.45 But, one critic has warned:
[T]his total lack of lunar law would likely heighten the
comparison to the Wild West — with no regulation; states would
have an incentive to militarize the Moon and to engage in
prolonged conflicts with other would-be users to gain monopolies
and exclusive uses over valuable lunar resources. While a
scheme rejecting all lunar regulation might lead to an era of free
46
and open use of the Moon, it also may lead to World War III.
In fact, the principal criticism of the Moon Agreement is not that it
proposes regulation, but that it proposes the wrong sort of regulation: the
a considerable period, gained few adherents, none of which are significant space powers.” Richard B.
Bilder, A Legal Regime for the Mining of Helium-3 on the Moon: U.S. Policy Options, 33 FORDHAM
INT’L L.J. 243, 269 (2010).
44. Goedhuis, supra note 24, at 233; see also Nicolas Mateesco Matte, Limited Aerospace
Natural Resources and Their Regulation, 7 ANNALS AIR & SPACE L. 379, 395 (1982) (“The space
powers should stop offering agreements or treaties which are lacking in substance fata morgana in a
vacuum juris before effective exploitation of limited resources becomes realistic.”); Lynn M. Fountain,
Creating Momentum in Space: Ending the Paralysis Produced by the “Common Heritage of Mankind”
Doctrine, 35 CONN. L. REV. 1753 (2003) (noting that the Moon Agreement “deepens the quandary” over
resource ownership because it “defers the resolution of the property rights issue until after an
international governing regime has been established, which is not to be established until exploitation of
the resources becomes feasible. Yet, the ambiguous nature of the governing regime, as well as the
uncertainty of the property rights, discourages such exploitation.”); IAN BROWNLIE, PRINCIPLES OF
PUBLIC INTERNATIONAL LAW 258 (7th ed., 2008) (“[T]he [Moon Agreement’s] provisions concerning
the appropriation of resources of the moon have certain obscurities.”).
45.
Hatch, supra note 23, at 267.
46.
Id.
404
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kind that discourages a sufficiently stable and predictable framework
which, in turn, discourages private investment.47
Proper regulation would also ensure that there is adequate provision
against any one company acquiring a monopoly position in the world
minerals market, as well as addressing issues of collective security. No one
would deny, for example, that if a huge cache of plutonium were discovered
somewhere outside the Earth, there would be a legitimate regulatory
interest in controlling (or curbing) its use and extraction. To quote one
writer:
A free-market approach bolstered by the legal certainty inherent
in a system that provides defined property rights would do much
to energize the stalled development of the space industry.
Involvement of private companies can provide the focus, money
and research necessary for successful growth. But such growth
must take place under an international regulatory regime. If the
space powers each create and pursue their own legal systems for
the commercialization of outer space, the result will be chaotic
48
and prone to international conflict.
Proof of the need for some kind of regulation lies in two pieces of U.S.
legislation. The first is the U.S. International Traffic in Arms Regulations
(ITAR), “a special U.S. regulatory regime aimed at controlling the export
and transfer of U.S. technology, including satellite technology, to foreign
persons.”49 The ITAR is not just an explicit recognition of U.S. national
security interests in controlling the transfer of aerospace technology, it is
47. “[P]rivate enterprise . . . is not likely to invest without a stable legal environment. . . . If
political instability threaten[s] financial returns, private enterprise would not make the initial investment.
Without a legal framework to govern extraterrestrial resource development, resources simply would not
be developed. Thus, such a framework is in the interests of mankind.” Webber, supra note 16, at 1342;
see also Keefe, supra note 5, at 370 (“Space Law currently . . . lacks a sufficiently well-defined regime
to adequately inform investors of how resources extracted from celestial bodies will be regulated and
divided.”); Jeremy L. Zell, Putting a Mine on the Moon: Creating an International Authority to
Regulate Mining Rights in Outer Space, 15 MINN. J. INT’L L. 489, 515 (2006) (“It is nearly impossible
for a firm or nation to calculate potential returns on investment for mining outer space if the legal status
of its claim is unknown. Currently, the debate over the Common Heritage Concept leaves many
debating whether it is possible to make claims on materials in space and who receives the benefits of the
extracted material and in what proportions.”).
48.
Fountain, supra note 44, at 1775.
49. See RAYMOND G. BENDER, JR., CHAPTER 39 INTERNATIONAL ARBITRATION—SATELLITE
COMMUNICATIONS: ARBITRATOR PERSPECTIVE § 39.07[3][a], at 39.31; see generally Arms Export
Control Act, 22 U.S.C. §§ 2751–99; International Traffic In Arms Regulations, 22 C.F.R. § 120.17
(2010) (limiting export of “any aircraft, vessel, or satellite covered by the U.S. Munitions List, whether
in the United States or abroad”).
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also an explicit recognition that the international community has a
legitimate interest in ensuring that sophisticated (and potentially dangerous)
technology does not fall into the wrong hands.
The second is the initial U.S. legislative response to Part XI of the Law
of the Sea Convention (LOSC). Following its rejection of Part XI, the
United States enacted legislation to license and authorize deep sea-bed
mining by U.S. companies.50 Soon thereafter, however, the United States
decided that it could not proceed in a totally unilateral manner and
negotiated separate agreements with its major trading partners “to resolve
overlapping claims with respect to mining areas for polymetallic nodules of
the deep sea-bed.”51 Thus, international cooperation and recognition was
ultimately judged necessary for the resource-exploitation regime to be
viable. Likewise, some form of treaty-based system for technology control
and international exploitation of outer space resources appears desirable.
IV. PRACTICAL PRECEDENTS FOR A FUTURE TREATY SYSTEM
A. The Revised Sea-Bed Regime as Contained in the 1994 Agreement on
Part XI
Since 1979, international law has witnessed four developments that,
together, provide guidance for a reformed Moon Agreement. The most
obvious of these is the sea-bed regime, as now reformulated.
In 1994, shortly prior to the LOSC coming into force,52 the United
States and other Western countries successfully negotiated a new
“Agreement on Implementation” of Part XI. The 1994 Agreement, adopted
by the UN General Assembly in 1994, creates a more market-friendly
regime for the sea-bed.53 It reduces the license application fee, abolished
50. See Deep Seabed Hard Mineral Resources Act, Pub. L. No. 96-283, 94 Stat. 553 (1980)
(codified as amended at 30 U.S.C. §§ 1401–73).
51. Bilder, supra note 43, at 274; see also id. at 274 n.117; BROWNLIE, supra note 44, at 246;
France-Federal Republic of Germany-United Kingdom-United Sates: Agreement Concerning Interim
Arrangements Relating to Polymetallic Nodules of the Deep Sea Bed, Sept. 2, 1982, 34 U.S.T.S. 3451;
Belgium-France-Federal Republic of Germany-Italy-Japan-Netherlands-United Kingdom-United States:
Provisional Understanding Regarding Deep Sea-Bed Matters, Nov. 1984, 23 I.L.M. 1354.
52. The Law of the Sea Convention came into force on November 16, 1994, one year after its
sixtieth ratification.
53. Agreement Relating to the Implementation of Part XI of the United Nations Convention
on the Law of the Sea of 10 December 1982, July 28, 1994, 1836 U.N.T.S. 42 [hereinafter 1994 Part XI
Agreement]. See generally Marian Nash Leisch, Contemporary Practice of the United States Relating
to International Law, 88 AM. J. INT’L L. 733 (1994); Cook, supra note 4, at 682–84; Jennifer Frakes,
Notes And Comments: The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space,
and Antarctica: Will Developed And Developing Nations Reach A Compromise?, 21 WIS. INT’L L.J.
409, 418–20 (2003); Bilder, supra note 43, at 266–67.
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the requirement that private ventures fund the activities of the so-called
“Enterprise,”54 and abolished mandatory technology transfer requirements55
and mandatory production ceilings.56 It further provided that voting on the
Sea-Bed Authority would be done in groups, with the United States
virtually guaranteed a seat on such groups, and each group able to block
decisions on substantive matters.57 The 1994 Agreement also established a
Finance Committee that would originate the financial decisions of the ISB
Authority, to which the largest donors would automatically be members and
in which decisions would be made by consensus.58
B. The 1988 Antarctic Mineral Resources Treaty
In 1988, a Convention on the Regulation of Antarctic Mineral
Resource Activities (CRAMRA) was signed by the various members of the
Antarctic Treaty System. CRAMRA is aimed to permit and regulate
mining activities in Antarctica.59 Environmental pressures, however, led to
a shelving of CRAMRA in favor of a long-term moratorium on mineral
activities in the Antarctic, now formalized in the 1991 Madrid Protocol
banning Antarctic mining for fifty years.60
Although CRAMRA had some limited promises of good treatment for
investors willing to mine in the Antarctic, its focus was on administrative
structure. Although it indicated that exploration or development permits
would not be “cancelled” by the council except under certain
circumstances,61 it nevertheless appeared to contemplate that a permit can
be cancelled for any reason with the consent of the investor’s “sponsoring
54. 1994 Part XI Agreement, supra note 53, § 2 (abolishing obligations on operators to fund
the Enterprise).
55.
Id. Annex § 5 (changing rules regarding technology transfer).
56. Id. Annex § 75 (changing rules regarding production policies, including abolition of
original LOSC rules on production ceilings).
57.
Id. Annex § 3.
58.
Id. Annex § 9 (“The Finance Committee”).
59. Convention on the Regulation of Antarctic Mineral Resource Activities, 27 I.L.M. 859,
859 (1988) [hereinafter CRAMRA].
60. See Protocol on Environmental Protection to the Antarctic Treaty, art. 7, Oct. 4, 1991, 30
I.L.M. 1499, 1464 (1991).
61. CRAMRA, supra note 59, art. 50(1) (“No Management Scheme shall be suspended or
modified and no Management Scheme, exploration or development permit shall be cancelled without
the consent of the Sponsoring State except pursuant to Article 51 [permitting cancellation where
development goes beyond “acceptable” environmental impact or where operator fails to comply with
Convention], or Article 54 or the Management Scheme itself.”).
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State.”62 CRAMRA also failed to include specific dispute resolution
procedures or arbitral rights for the investor. A Canadian commentator
remarked that:
Ironically, although the United States feared that the international
regime for sea-bed mining would be used as a model for a new
regime in Antarctica, the Antarctic Minerals Convention of 1988,
approved by the United States, is in many ways more stringent in
63
its regulations and more complex in its bureaucratic structure.
C. The ITU System for Regulating Geostationary Orbital Slots
The geostationary orbit “is essentially a doughnut-shaped volume of
space in which geostationary satellites are placed;” and “located
approximately 35,786 kilometers above the Earth’s equator.”64 Because
such satellites orbit the earth at the same rate as the earth’s own rotation,
they “appear motionless when viewed from earth” and thus “can
communicate with approximately one third of the planet, an entire country
or, if in conjunction with a satellite network, the entire globe.”65 The
orbital area is a finite space, not only because it is above the equator, but
also because satellites parked too close to each other will interfere with
each others’ transmissions.66
Consequently, in order to avoid
overcrowding, a regulatory allocation system is necessary. This exists in
the form of the International Telecommunications Union system (ITU).
An international organization, the ITU “can trace its official existence”
back to 1865.67 Through a 1973 convention, it has power to “effect
allocation of the radio frequency spectrum and registration of radio
62.
Id.
63. Louise de La Fayette, Book Review, 86 AM J. INT’L L. 212, 214 n.1 (1992) (reviewing
Markus G. Schmidt, COMMON HERITAGE OR COMMON BURDEN? THE UNITED STATES POSITION ON
THE DEVELOPMENT OF A REGIME FOR DEEP SEA-BED MINING IN THE LAW OF THE SEA CONVENTION
(1989)).
64. Jannat C. Thompson, Space for Rent: The International Telecommunications Union, Space
Law, and Orbit/Spectrum Leasing, 62 J. AIR L. & COM. 279, 283 (1996); see also Lawrence D. Roberts,
A Lost Connection: Geostationary Satellite Networks and the International Telecommunications Union,
15 BERKELEY TECH. L.J. 1095, 1101–05 (2000); Fred Kosmo, The Commercialization of Space: A
Regulatory Scheme that Promotes Commercial Ventures and International Responsibility, 61 S. CAL. L.
REV. 1055, 1058–59 (1988).
65. Thompson, supra note 64, at 283; see also Roberts, supra note 64, at 1101–05; Kosmo,
supra note 64, at 1058–59.
66.
Thompson, supra note 64, at 285.
67.
Roberts, supra note 64, at 1105–06 (discussing history).
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frequency assignments in order to avoid harmful interference between radio
stations of different countries,”68 and can “coordinate efforts to eliminate
harmful interference between radio stations of different countries and to
improve the use made of the radio frequency spectrum.”69 The ITU
Convention further provides that “radio frequencies and the geostationary
satellite orbit are limited natural resources,” which “must be used
efficiently and economically so that countries or groups of countries may
have equitable access to both.”70
Acting under this authority, the ITU maintains a master register of
permitted frequencies within which satellites may broadcast;71 thus, acting
as an allocator of geostationary orbit slots. Under its current policy, orbital
positions are “assigned” to states that apply for them.72 However, states
may “preempt another nation’s use of an orbital location” by registering its
intended use of such slots with the ITU.73 Slots thus operate on a “first
come, first served” basis, giving “preferential treatment to early
registrants.”74 The United States and other developed countries have
“consistently opposed any comprehensive plan to share slots and
frequencies, as it is feared that these plans would be inflexible, restrictive,
and result in diminished technical advances.”75
Although states may submit disputes over slot allocation to binding
arbitration,76 collective diplomacy has played a larger role in resolving
controversies. In 1991, for example, Tonga attempted to amass six “slots,”
with the apparent intention of “renting and auctioning” them to other
users.77 Under pressure from INTELSAT and satellite operators, Tonga
68.
International Telecommunication Convention, art. 4(2)(a), Oct. 25, 1973, 28 U.S.T. 2497,
69.
Id. art. 4(2)(b).
2512.
70. Id. art. 33(27). Article 33 was adopted in 1973 following a similarly worded 1971
resolution by the World Administrative Radio Conference for Space Communications. Susan Cahill,
Give Me My Space: Implications for Permitting National Appropriation of the Geostationary Orbit, 19
WIS. INT’L L.J. 231, 240 (2001). It was amended in 1982 to require the ITU to “take into account” the
needs of “developing countries.”
71.
Roberts, supra note 64, at 1111–12; Thompson, supra note 64, at 288–90.
72.
Cahill, supra note 70, at 233.
73.
Id. at 243.
74.
Roberts, supra note 64, at 1112–13.
75.
Kosmo, supra note 64, at 1062.
76. See Optional Protocol on the Compulsory Settlement of Disputes Relating to the
Constitution of the International Telecommunication Union, to the Convention of the International
Telecommunication Union, and to the Administrative Regulations, Dec. 22, 1992, S. Treaty Doc. No.
104-34.
77.
Cahill, supra note 70, at 244.
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relinquished some of its claims, and ITU regulations were subsequently
amended to require “that a majority of slots applied for be used directly by
the requesting country.”78
Although the “common heritage” principle is not an explicit part of the
ITU’s regime, the system does work on the assumption that the
geostationary orbit lies outside national sovereignty. This has generated
some controversy in the past. In 1976, a group of equatorial states issued a
declaration (known as the “Bogotá Declaration”) asserting that “segments”
of the geostationary orbit were “part of the territory over which the
Equatorial States exercise their national sovereignty,” and objected to the
ITU system of allocation.79 Most space-using nations and scholars have,
however, rejected this claim, on both scientific and legal grounds.80 Legal
scholars have pointed out that a claim of sovereignty over the geostationary
orbit would be incompatible with the Outer Space Treaty’s declaration that
outer space “is not subject to national appropriation by claim of
sovereignty.”81
Yet despite this controversy, and despite the absence of a centralized
enforcement system (or sanctions system),82 states tend to comply with the
allocation decisions.83 The ITU system has enabled states (and
corporations) to expend the large amount of resources necessary to build,
launch, and maintain satellites. In that sense, the ITU system can be judged
to be successful.
78.
Id.
79. Declaration of the First Meeting of Equatorial Countries, Dec. 3, 1976 (signed by Brazil,
Colombia, Congo, Ecuador, Indonesia, Kenya, Uganda, and Zaire), reprinted in 2 SPACE LAW: BASIC
LEGAL DOCUMENTS (Prof. Dr. Karl-Heinz Bockstiegel, Dr. Mariette Benko & Prof. Dr. Stephan Hobe
eds., 2005).
80. See Thompson, supra note 64, at 308 (noting that the Bogotá Declaration was
“overwhelming[ly] reject[ed]”). From a scientific perspective, scholars commented that: (1) from a
functional perspective, the geostationary orbit is part of outer space; and (2) the geostationary orbit is
not, as the Bogotá Declaration states asserted, created by the gravitational pull of the earth beneath it.
Kosmo, supra note 64, at 1061.
81.
Outer Space Treaty, supra note 3, art. II.
82. It has been said that, if the ITU “can be comparable to a traffic officer, it is an officer
unable to adequately measure the traffic, whose ‘tickets’ for violations are often ignored and who lacks
not only a jail but also a court for offenders.” Thompson, supra note 64, at 290 (quoting David M.
Leive, International Telecommunications and International Law: The Regulation of the Radio
Spectrum, AM. SOC’Y INT’L L., at 22 n.8 (1970)).
83.
Thompson, supra note 64, at 290.
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1. The Space Station Agreement
Under the Intergovernmental Agreement on the International Space
Station (IGA), participating states can contribute towards the building and
establishment of the International Space Station (ISS).84 The ISS has been
described as a “hub and spoke structure” with NASA, the operator of the
ISS, at the “hub.”85 Once operational, “modules” of the ISS are treated as
being subject to the sovereignty and control of a given participating state.86
Thus, research and development activities being conducted within, say, a
Russian module can be treated as being subject to Russian law (including,
where applicable, Russian patent and intellectual property law). The
participating state (and/or those operating within its module), therefore, has
legal security over any developments or discoveries they may make while
using the ISS.
2. Investment Protection Treaties and Free Trade Agreements
The third, and perhaps most significant, trend of international law
since the 1980s has been the emergence of modern “bilateral investment
treaties” (BITs) and similar multilateral treaties, which typically contain
both substantive and procedural protections for an investment. These
treaties guarantee that an investment will not be “expropriated” (i.e.,
confiscated) without payment of prompt, adequate, and effective
compensation.87 They also provide a variety of further protections,
84. See Agreement among the Government of Canada, Governments of Member States of the
European Space Agency, the Government of Japan, the Government of the Russian Federation, and the
Government of the United States of America concerning cooperation on the Civil International Space
Station, Jan. 29, 1998, T.I.A.S. No. 12927 [hereinafter IGA Agreement].
85. Rosanna Sattler, Transporting a Legal System for Property Rights: From the Earth to the
Stars, 6 CHI. J. INT’L L. 23, 37 (2005).
86. See IGA Agreement, supra note 84, art. 21(2) (“[F]or purposes of intellectual property
law, an activity occurring in or on a Space Station flight element shall be deemed to have occurred only
in the territory of the Partner State of that element’s registry, except that for ESA-registered elements
any European Partner State may deem the activity to have occurred within its territory.”) (emphasis
added).
87. See, e.g., Model Agreement on Encouragement and Reciprocal Protection of Investments
for Kingdom of the Netherlands, art. 6, available at http://www.unctad.org/sections/
dite/iia/docs/Compendium//en/135%20volume%205.pdf (last visited Mar. 25, 2011) [hereinafter
Netherlands Model BIT] (restricting state’s power to nationalize investments except “in the public
interest and under due process of law,” in a manner that is non-discriminatory and not contrary to prior
state undertakings, and that provides for “just compensation” representing the “genuine value” of the
investment); Agreement Between the Government of the United Kingdom of Great Britain and Northern
Ireland and the Government of the Republic of Argentina for the Promotion and Protection of
Investments, art. 5, Dec. 11, 1990, available at http://www.unctad.org/sections/dite/iia/docs/
2011]
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including that investors will receive “fair and equitable treatment,”88 which
has been described as embodying principles of “transparency, stability and
the investor’s legitimate expectations, compliance with contractual
obligations, procedural propriety and due process, action in good faith and
freedom from coercion and harassment.”89 BITs often provide that
investors shall not be discriminated against on the grounds of nationality
and/or will receive “most favored nation” treatment, i.e., the same level of
treatment as the most favorable investment treaties entered into by the host
state.90 BITs also typically provide for arbitration before the International
Centre for Settlement of Investment Disputes (ICSID) or under the
arbitration rules of the United Nations Commission on International Trade
Law (UNCITRAL).91
bits/uk_argentina.pdf (last visited Mar. 25, 2011) [hereinafter UK-Argentina BIT] (similar restrictions;
requiring for “prompt, adequate and effective compensation” in the event of expropriation); Energy
Charter Treaty, art. 13(1), Dec. 12, 1994, 34 I.L.M. 360 (similar restrictions; requiring payment of “fair
market value of the Investment expropriated at the time immediately before the Expropriation or
impending Expropriation became known in such a way as to affect the value of the Investment”)
[hereinafter Energy Charter Treaty]; Treaty Between the Government of the United States of America
and the Government of [Country] Concerning the Encouragement and Reciprocal Protection of
Investment, art. 6(1) (2004 Model BIT), available at http://www.unctad.org/sections/dite/iia/docs/
Compendium//en/model_USA.pdf (last visited Mar. 25, 2011) [hereinafter U.S. Model BIT] (similar
restrictions and guarantees of “prompt, adequate and effective” compensation).
88. See, e.g., Netherlands Model BIT, supra note 87, art. 3(1) (providing that investments of
investors shall be accorded “fair and equitable treatment” and that such investments shall not be
“impair[ed] by unreasonable or discriminatory measures”); UK-Argentina BIT, supra note 87, art. 2(2)
(investors shall receive “fair and equitable treatment” and also guarantees against “unreasonable or
discriminatory measures”); accord Energy Charter Treaty, supra note 87, art. 10(1). The current U.S.
Model BIT likewise provides for “fair and equitable treatment,” but clarifies that this is intended to be
co-extensive with the minimum standards of treatment of foreign nationals required under customary
international law. See also U.S. Model BIT, supra note 87, art. 5(1)–(2).
89. Christoph Schreuer, Fair and Equitable Treatment, Protection of Foreign Investments
Through Modern Treaty Arbitration—Diversity and Harmonisation, ASA SPECIAL SERIES NO. 34, at
126 (Anne K. Hoffmann ed., May 2010). As contained in the Netherlands Model BIT, this has been
interpreted as entitling investors to expect “that the [host state] will not act in a way that is manifestly
inconsistent, non-transparent, unreasonable (i.e., unrelated to some rational policy), or discriminatory
(i.e., based on unjustifiable distinctions).” Saluka Investments B.V. v. Czech Republic, Partial Award, ¶
309 (UNCITRAL Mar. 17, 2006).
90. See, e.g., Netherlands Model BIT, supra note 87, art. 3(2) (“Each Contracting Party shall
accorded to [foreign] investments treatment which in any case shall not be less favorable than that
accord either to investments of its own nationals or to investments of nationals of any third State,
whichever is more favourable to the national concerned.”); UK-Argentina BIT, supra note 87, art. 3
(guaranteeing national treatment and MFN treatment); Energy Charter Treaty, supra note 87, art. 10(3)
(similar); U.S. Model BIT, supra note 87, arts. 3–4 (national and MFN treatment).
91. See, e.g., Netherlands Model BIT, supra note 87, art. 9 (providing for ICSID arbitration of
investment disputes); UK-Argentina BIT, supra note 87, art. 8 (providing for ICSID or UNCITRAL
arbitration of investor-state disputes); Energy Charter Treaty, supra note 87, art. 26 (providing for
412
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The guiding principles behind investor protection were aptly
summarized in the 2003 award of the Tecmed tribunal:
The foreign investor expects the State to act in a consistent
manner, free from ambiguity and totally transparently in its
relations with the foreign investor, so that it may know
beforehand any and all rules and regulations that will govern its
investment, as well as the goals of the relevant policies and
administrative practices or directives, to be able to plan its
investment and comply with such regulations. The foreign
investor also expects the host State to act consistently, i.e.,
without arbitrarily revoking any preexisting decisions or permits
issued by the State that were relied upon by the investor to
assume its commitment as well as to plan and launch its
commercial and business activities. The investor also expects the
State to use the legal instruments that govern the actions of the
investor or the investment in conformity with the function
usually assigned to such instruments, and not to deprive the
92
investor of its investment without the required compensation.
Another form of investment protection is a “concession” agreement
between the host state and the investor.93 Such agreements have sometimes
been expressed (or construed) as being subject to the general principle of
pacta sunt servanda, meaning that the obligations arising thereunder must
be performed in good faith and cannot be abrogated by later state action.94
These protections are usually enforceable in a neutral arbitral forum
pursuant to the rules of a neutral legal system; “the investor priority will be
the choice of a legal order that provides a stable and predictable legal
ICSID, UNCITRAL, or Stockholm Chamber of Commerce arbitration of investor-state disputes); U.S.
Model BIT, supra note 87, art. 24 (providing for ICSID or UNCITRAL).
92. Técnicas Medioambientales Tecmed, S.A. v. Mexico, No. ARB (AF)/00/2, Award, ¶ 154
(ICSID May 29, 2003).
93. See generally RUDOLF DOLZER & CHRISTOPH SCHREUER, PRINCIPLES OF INTERNATIONAL
INVESTMENT LAW 72–79 (2008) (chapter on investment contracts). Concession agreements sometimes
include a “stabilization clause,” in which the host state promises not to alter or vary the regulatory or
taxation environment in a manner that would alter the investment climate. See id. at 75.
94. Thus, in the Lena Goldfields arbitration, a concession between a foreign firm and the
Soviet Government was construed as being governed by “general principles” of law, including pacta
sunt servanda—not merely domestic Soviet law. See Arthur Nussbaum, The Arbitration Between the
Lena Goldfields, Ltd. and the Soviet Government, 36 CORNELL L.Q. 31, 35–36 (1950); see also V.V.
Veeder, The Lena Goldfields Arbitration: The Historical Roots of Three Ideas, 47 INT’L & COMP. L.Q.
747, 750 (1998); Sapphire Int’l Petroleums Ltd. v. Nat’l Iranian Oil Co., Arbitral Award, 35 I.L.R. 136,
187–88 (Mar. 15, 1963) (An arbitrator likewise interpreted a state concession, whose terms were
expressly governed by “general principles of law,” not Iranian law, to be governed by the fundamental
rule of pacta sunt servanda.). Id. at 181–83.
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environment and of a forum for dispute resolution that will preclude bias or
political influence against the investor.”95
V. POSSIBLE INVESTMENT PRINCIPLES FOR A NEW MOON AGREEMENT
With those examples in mind, here are some basic provisions that
should be included in any future regime governing extraterrestrial
development:
1.
2.
3.
4.
5.
Ability to Prospect/Explore: LOSC and CRAMRA both
give operators the ability to prospect or explore a particular
area for resources as a preliminary to engaging full mining
96
activity in that area. This is a basic prerequisite for private
mining.
Ability to Mine: Once prospected, an operator should then
have the ability to mine as per an approved fine, subject to
compliance with environmental and safety requirements.
97
This too is a feature of both LOSC and CRAMRA.
Property Rights in Extracted Materials: The rules should
make clear, from the outset, that the operator has good title
to the minerals it extracts, just as LOSC states that “title to
minerals shall pass upon recovery in accordance with this
98
Convention.”
Length of Tenure: Mining is a long-term investment.
LOSC provides, for example, that an operator will have a
99
fifteen year contract.
Transparency: Where an investor is subject to a regulated
regime, it ideally is entitled to full transparency in the form
of advance knowledge of any and all applicable rules,
practices, and policies of the regulator. This is now
reflected in the new transparency provisions of the 2004
100
U.S. Model BIT.
95.
Id. at 174.
96.
See LOSC, supra note 7, Annex III arts. 2–3; CRAMRA supra note 59, arts. 37–39.
97. See LOSC, supra note 7, Annex III art. 6 (“Approval of plans of work”); CRAMRA supra
note 59, art. 48 (providing that a regulatory committee has power to grant operators the “exclusive
rights” to “explore” and “develop the mineral resource or resources which are the subject of the
Management Scheme exclusively in accordance with the terms and conditions of the Management
Scheme”).
98.
LOSC, supra note 7, Annex III § 1.
99.
Id. Annex I § 1(1).
100. U.S. Model BIT, supra note 87, art. 11 (requiring transparency in, inter alia, regulatory
measures and administrative proceedings).
414
6.
7.
8.
9.
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Security of Tenure: As the late Professor Thomas Wälde
stated, an investor “should be protected against unexpected
and detrimental changes of policy if the investor has carried
out significant investment with a reasonable, publicauthority initiated assurance in the stability of such
101
policy.”
Concession agreements, thus, sometimes
include “stability clauses” which protect against ex post
facto changes to the regulatory framework, and guarantee
pacta sunt servanda. Many BITs require that a state shall
observe any express commitments it has made with respect
102
to an investment (e.g., in the form of a prior contract). At
present, the ITU system likewise provides effective security
of tenure once an orbital slot is allocated, but a mining
regime would probably require more explicit guarantees.
Right to Repatriation of Capital and/or Dividends: Most
BITs contain some kind of guarantee that the investor will
be able to realize its investment by repatriating its capital
103
and dividends.
Control over Management: Many BITs provide investors
with a measure of freedom in selecting senior
104
management.
Intellectual Property: It can be expected that technological
discoveries and innovations will be developed not just in
the home state’s laboratory, but on-site. Using the model
from the IGA for the ISS, operators should be permitted to
101. Int’l Thunderbird Gaming, Inc. v. Mexico, Separate Opinion of Arbitrator Wälde, ¶ 30
(UNCITRAL Jan. 26, 2006).
102. See, e.g., Netherlands Model BIT, supra note 87, art. 3(4) (“Each Contracting Party shall
observe any obligation it may have entered into with respect to investments of nationals of the other
Contracting Party.”); UK-Argentina BIT, supra note 87, art. 2(2) (same); Energy Charter Treaty, supra
note 87, art. 10(1) (similar).
103. See, e.g., Netherlands Model BIT, supra note 87, art. 5 (“The Contracting Parties shall
guarantee that payments relating to an investment [including profits, loan repayments, earnings, and the
proceeds of sale or liquidation of the investment] may be transferred.”); UK-Argentina BIT, supra note
87, art. 6(1) (providing for repatriation of “investments and return”); Energy Charter Treaty, supra note
87, art. 14 (providing for protection of certain “transfers” relating to investments); U.S. Model BIT,
supra note 87, art. 7 (protection of certain “transfers”).
104. See, e.g., Energy Charter Treaty, supra note 87, art. 11(2) (“A Contracting Party shall
permit Investors of another Contracting Party which have Investments in its Area, and Investments of
such Investors, to employ any key person of the Investor’s or the Investment’s choice regardless of
nationality and citizenship provided that such key person has been permitted to enter, stay and work in
the Area of the former Contracting Party and that the employment concerned conforms to the terms,
conditions and time limits of the permission granted to such key person.”); U.S. Model BIT, supra note
87, art. 9 (Host states may not insist that “senior management” of an enterprise possess a “particular
nationality.”).
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claim intellectual property rights arising from such
discoveries.
10. Full Protection and Security: BITs typically provide that an
investor will receive a certain minimum level of protection
105
from the host government.
Although this does not
translate directly into the space context, the future regime
might require that member states operating in proximity to
the investor shall not infringe upon the operator’s physical
security.
11. Neutral Forum: An adequately functioning regime must
provide for neutral dispute resolution in a forum in which
all parties have confidence, pursuant to a neutral system of
law. Although the ITU system and the LOSC sea-bed
arrangements have attempted to create such an
arrangement, the BIT arbitration system, operating under
the ICSID or the UNCITRAL rules, offers the best known
model for resolving disputes between a private actor and a
public host state/regulator. Arbitration is also established as
a “preferred method of resolving industry disputes” within
106
the commercial aerospace community.
VI. CONCLUSION
Although it may take some time for exploration of the Moon or other
celestial bodies to resume in earnest, and still more time to develop means
of exploiting their natural resources, the policy issues presented by the
Moon Agreement still warrant close study. This is particularly true for the
companies whose technology might one day play a role in that process.
If and when the technology to develop the Moon is eventually
developed, the shortcomings of the Moon Agreement will have to be
addressed. If, as now seems likely, the Moon Agreement proves to be an
unworkable model for regulation, it will either wither on the vine due to
lack of signatures, or else undergo a major revision. When that occurs, the
105. See, e.g., Netherlands Model BIT, supra note 87, art. 3(1) (“Each contracting party shall
accord to [foreign] investments full physical security and protection.”); UK-Argentina BIT, supra note
87, art. 2(2) (similar provision); Energy Charter Treaty, supra note 87, art. 10(1) (similar); U.S. Model
BIT, supra note 87, arts. 5(1)–(2) (similar; clarifying that the “full protection and security” standard
requires host states “to provide the level of police protection required under customary international
law”).
106. BENDER, supra note 49, § 39.01 at 39.2; see also id. § 39.04[1] at 39.19 (explaining that
arbitration is preferred because of its “significant advantages,” including its perceived fairness, that it
allows for the appointment skilled arbitrators with technical knowledge and industry experience, and
that it can protect technical and confidential business data).
416
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lessons of other areas of international law, including investment law, are
sure to be instructive.
BEYOND OCCUPATION: PROTECTED PERSONS
AND THE EXPIRATION OF OBLIGATIONS
Tom Syring∗
I.
PLACING STATE RESPONSIBILITY FOR REFUGEES IN CONTEXT ...... 419
A. Responsibilities de lege lata: Where Are We at Today? ........ 421
1. Legal Consequences: Critique of the Current Legal
Framework ...................................................................... 424
2. Ceased Circumstances ..................................................... 424
3. Primary Responsibility .................................................... 428
B. De Lege Ferrenda: From Moral to Legal Obligation............ 432
C. Conclusions ............................................................................. 434
In spite of the increasing importance and expanding scope of
international law, some subjects of international law still fall outside of the
protection offered by existing legal instruments.
Under certain circumstances, stateless persons,1 for example, may find
themselves in a situation akin to refugees, but due to occupation, have no
(in any case not anymore) country of their own, and not being able to cross
borders they would not qualify as persons fleeing their country of origin in
terms of the 1951 Refugee Convention 2 and its 1967 Protocol.3 On the
∗
Co-chair of the International Refugee Law Interest Group of the American Society of
International Law, currently serves at the Norwegian Immigration Appeals Board. He has previously
taught at the University of Oslo and at Boston University as a Lecturer in International Law and Visiting
Fulbright Scholar. The views expressed in this article are those of the author alone and do not
necessarily reflect the views of the Norwegian Immigration Appeals Board.
1.
See, e.g., “[A] person who is not considered as a national by any State under the operation
of its law.” United Nations Convention Relating to the Status of Stateless Persons, art. 1(1), Sept. 28,
1954, 360 U.N.T.S. 117 (entered into force on June 6, 1960).
2.
United Nations Convention Relating to the Status of Refugees, art. (1)(A), July 28, 1951,
189 U.N.T.S. 150 (entered into force on Apr. 22, 1954). The Refugee Convention defines as a person
who:
[O]wing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is
outside the country of his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country; or who, not having a
nationality and being outside the country of his former habitual residence as a
result of such events, is unable or, owing to such fear, is unwilling to return to it.
Id. art. (1)(A) [hereinafter Refugee Convention].
3.
See generally United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967,
606 U.N.T.S. 267 (entered into force on Oct. 4 1967) [hereinafter Protocol for Status of Refugees].
418
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other hand, being confined to an occupied territory and thus being
prevented from moving, they would not fit the description of Internally
Displaced Persons (IDPs) either.
“Climate refugees” are a special sort of migrant, akin to IDPs when
displaced within their own country due to catastrophic conditions, such as
earthquakes, tsunamis, draughts and other, more or less, natural disasters.
However, climate change, weather induced dire straits, mutatis mutandis,
knows no frontiers and hence, “climate refugees” often have to cross into
another country in order to escape from life threatening conditions. Yet,
once crossing an international border, they are no longer IDPs, but neither
are they refugees under the Refugee Convention, as “climate” today is not a
(Refugee) Convention ground of persecution.
Even where the
Convention’s refugee definition applies, or where, for example, a legitimate
claim to designation as protected persons under the Fourth Geneva
Convention4 (Geneva IV) may be made, the rules governing the granting of
the respective status, its duration, and the expiration of such obligations are
at best blurry.
While all of the above groups of people may be described as “persons
to be protected,” this article will have a main focus on state responsibility
for convention refugees in times of—and beyond—occupation; juxtaposing
their designation and states’ post-conflict obligations with the ones
accorded to protected persons under Geneva IV as the two groups of
“persons to be protected” perhaps the most directly affected by, and
depending on, actions by foreign states.
Furthermore, while highlighting some questionable approaches on the
part of individual states towards the state responsibility issues involved,
those examples are merely illustrative of some general flaws of the current
international refugee regime. Here, it is argued that although individual
state’s actions may exacerbate or alleviate the general problems involved to
a certain extent, unless those shortcomings are addressed on an
international level, the often insufficient protection offered to people in
need will persist.
Thus, this article will start with placing the current refugee and burden
sharing regime in context, followed by an assessment of state
responsibilities de lege lata. After highlighting some consequences of a
narrow reading of state obligations and critiquing the existing legal
framework, thoughts as to how to turn state responsibilities de lege ferrenda
4.
See generally The Fourth Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287 (entered into force on Oct. 21, 1950)
[hereinafter Geneva IV Convention].
2011]
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into binding legal obligations are put forward, before offering some
tentative conclusions, summarizing the main points of contention.
I. PLACING STATE RESPONSIBILITY FOR REFUGEES IN CONTEXT
The refugee regime, initially designed to cope with the aftermath of
the Second World War and hence, in the main, focusing on European
refugees fleeing from the horrors and consequences of war, nowadays is
under pressure. In the 21st century, the majority of migrants and refugees
entering Western, and especially European states, hail from distant
countries and continents, not, as was previously the norm, neighboring
states. And the total number of people, for various reasons, fleeing their
country of origin has been on the increase for a number of years.
To the extent that rational choice is an option, people seek to achieve
their goals, taking a line of least resistance. So do refugees, focusing on
entering a safe country through whatever port of entry possible, albeit
“choice” is often not an option they have.
Hence, taking Europe as an example, for geopolitical reasons,
countries in the South and Southeast of Europe, such as Greece and Italy,
are more likely to receive large numbers of refugees, mainly from African
and Asian countries, than their Northern European counterparts, as the
former often represent the closest port of entry into Europe. In an attempt
to reduce so-called “asylum-shopping”—the activity of applying multiple
times in different countries for asylum—the European Union (EU)
established the Dublin II regime. The Dublin II regime basically states that
wherever a person enters the EU with a view to seeking asylum determines
where his or her application has to be processed and decided. If it were to
be detected that a person made a second application in another EU Member
State, that person will be sent back to the country through which he initially
entered the EU. That, however, has further contributed to an unbalanced
burden-sharing status quo, with countries closest to the entry ports
receiving the highest number of asylum seekers. With an ever deteriorating
system for asylum status determination due to lack of economic resources
and perhaps also economic incentives, countries at the periphery, such as
those in the north of Europe, receive an unduly low share of the total
number of applicants entering the EU.
Furthermore, in order to control the growing number of refugees and
migrants attempting to enter Europe, Frontex, the EU’s joint border patrol
force, has increased its activities in the past two years by: dispatching
patrol boats to the Aegean Sea to block arrival of mostly African illegal
immigrants by sea, and, more recently, heightening control around the
Greek town of Nea Vissa. Nea Vissa borders Turkey and has become the
main corridor for illegal entry into Europe by Middle Eastern and North
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African people seeking protection or simply a better future.5 Hence, people
trying to enter the EU to explore new avenues take even greater risks in
order to literally find an opening, and sometimes their “port of entry” is
merely a rock.6 In addition, upset by the uneven distribution of burden
within the EU asylum system, countries on top of the port of entry statistics
are increasingly aiming at entering into bilateral agreements with countries
that serve as hubs on the way to Europe. As a case in point, Italy and Libya
reportedly executed an agreement that pays Libya compensation in return
for cracking down on illegal migration routes stemming from, or in any
case leading through, Libya. That agreement includes an opening for
Italian authorities to swiftly return intercepted boat migrants to Libya, a
country which is not a state party to the Refugee Convention, before they
even reach Italian shores or “rocks” that is. The agreement has been
criticized for not sufficiently differentiating between illegal migrants, and
genuine refugees, and in many instances not even having the necessary
procedures in place in order to make a well-informed decision as to the
determination of the proper refugee status of the people intercepted, before
they are returned.7
In sum, contemplating state responsibility issues in the context of the
existing burden-sharing status quo, as highlighted by the EU asylum
system, the emerging picture is one of imbalance to the extent that
refugees’ due process rights, including a fair hearing of individual asylum
claims, are jeopardized. The fairness of the asylum system is jeopardized
by refugee flows simply being paid-off and redirected to countries less
concerned with, and feeling less bound by, the Refugee Convention—and
the granting of rights pronounced therein. But what legal obligations
towards protecting refugees or protected persons under Geneva IV are there
today?
5.
Cf. Edward Cody, Greek Town Becomes Flash Point in War against Muslim Immigrants,
WASHINGTON POST, Nov. 11, 2010, available at http://www.washingtonpost.com/wpdyn/content/article/2010/11/11/AR2010111107562.html (last visited Nov. 25, 2010).
6.
Cf. The small Italian island of Lampedusa, 127 miles off Sicily (and 70 miles off Tunis),
which, due to its remote location en route from North Africa to Europe, has often become the first (and
only) destination of migrants and (boat) refugees taking the sea way on their flight, risking the journey
in overcrowded and unsuitable craft, just to come to an equally overcrowded island, with few chances of
proceeding any further.
7.
See generally Italy/Libya: Migrants Describe Forced Return, Abuse, HUM. RTS. WATCH,
Sept. 21, 2009, available at http://www.hrw.org/en/news/2009/09/17/italylibya-migrants-describeforced-returns-abuse (last visited Nov. 11, 2010); see also Italy to Pay Libya 5 Billion, N.Y. TIMES,
Aug.
31,
2008,
available
at
http://www.nytimes.com/2008/08/31/world/europe/31ihtitaly.4.15774385.html (last visited Nov. 11, 2010).
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A. Responsibilities de lege lata: Where Are We at Today?
As far as refugees are concerned, as a point of departure a state only
has responsibilities for people crossing into its territory and applying for
refugee status after crossing the border. In fact, an asylum application
generally may not be brought unless the applicant finds himself within the
country where he wants to seek asylum, and in any case, by definition,
according to Article 1, Section A of the Refugee Convention, a refugee
needs to be “outside the country of his nationality”—otherwise he would
not qualify as a refugee. Other than that, states may also accept so-called
“quota refugees,” denoting persons who have been selected and whose
refugee status has been determined by the United Nations High
Commissioner for Refugees (UNHCR), prior to being transferred to his or
her country of refuge. In such cases, the entire process of selection and
transfer is organized by the UNHCR, and generally referred to as
resettlement. While states pledging acceptance of a certain refugee quota
per year are bound by that statement, the pledge itself is generally
voluntary. In contrast, if found to have a well-founded fear of persecution
based on a Refugee Convention ground, accepting the refugee claim of a
person fleeing to the respective country is not optional, but a legal
responsibility for any state party to the Refugee Convention.8
But, excluding acceptance of UNHCR refugee quotas, which represent
to a large extent deliberate choices, as opposed to legal obligations, where
does that leave us in terms of responsibilities de lege lata?
If the only legal responsibility of states towards refugees pertains to
those knocking at their respective frontier’s doors, what does that lead to on
a global level? As previously mentioned, the EU asylum system, as well
as other regions’ refugee regimes, suffers from a number of shortcomings,
due, inter alia, to the fact that some ports of entry stand out. This leaves
those countries closest to the refugee roads most travelled with, by far, the
largest share of new arrivals. Neighboring countries physically connected
to those Southern and Southeastern outer EU borders are, on average,
significantly less affected by the migrant and refugee flows. The more
towards the geographic periphery relative to the refugee flows a country is
8.
For states not party to the Refugee Convention, legal obligations based on customary law,
such as the principle of “non-refoulement” enshrined in Article 33 of the Refugee Convention, but now
arguably also having reached status as customary law, may be contemplated. Accepting a person as a
refugee and conferring refugee status on that person, and merely not returning a person to the country he
or she fled from, without conferring refugee status on that person, are two quite separate issues. The
former endows the refugee with a set of rights, including eventual, and usually, permanent residency
status. The latter, on the other hand, resembles much more a fickle state of limbo, which may literally
change overnight. See generally Refugee Convention, supra note 2, art. 33.
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situated, the fewer, in general,9 the number of refugee claims, simply
because it is harder and more expensive for a refugee to travel all the way.
Now, imagine Iceland. In accordance with that general pattern, the
number of refugee arrivals to Iceland each year is quite small;10 though, to
be fair, so is the total population of Iceland.11 But is that itself sufficient
ground for barely being required to deal with refugee flows? Based on
international legal requirements as of now, the answer would be yes.
Considering that Iceland is a country situated in a rather remote area, and is
neither physically connected to the European mainland nor of particular
political significance on the world stage, one might concede that Iceland
has not much of an influence on any refugee flows, and as such, should
only be required to deal with those actually coming to its borders and
applying for protection.
But what if Iceland were a military superpower (for the sake of
argument), and had been heavily involved in conflict zones overseas
negatively affecting parts of the civilian population and contributing to
refugee flows abroad—irrespective of positive goals that may have been
achieved? Would the balance of obligations then change, or would it still
be correct to assume that Iceland had no further obligations towards
refugees other than to those who manage to cross the oceans and apply for
protection in Iceland? In line with the existing legal framework, causation
does not matter and states need only confer refugee status upon qualifying
persons who apply within their borders. Even where occupation or
intervention is the main contributing factor to a refugee flow, obligations de
lege lata remain the same. People in such conflict situations often are not
able to cross borders at all, or at best manage to cross into the nearest
neighboring countries. With respect to the Iraq war, for example, states
like Jordan and Syria carry the main refugee burden, simply due to their
proximity to the conflict zone.
9.
Of course, to the degree that there is a real element of choice involved, considerations of
wealth, human rights record, etc. of the refugee’s country of destination play a part in deciding where to
try to apply for refugee status, but the general, overall (geographically determined) pattern is not
significantly changed by that.
10. Seventy-six individuals in 2008, see Zoë Roberts, Asylum Seekers in Norway: Can We
Learn from Our Ancestors’ Descendants?, REYKJAVIK GRAPEVINE, July 21, 2009, available at
http://www.grapevine.is/Features/ReadArticle/Article-Asylum-Seekers-In-Norway (last visited Nov.
11, 2010).
11. As of July 2010, Iceland’s population amounts to a mere 318,000 people. Compared to
Norway, also a country at the periphery and outside the EU, Iceland is not quite as remote from the main
refugee roads. Although both are signatories to the Dublin Regulations, Norway has a population of 4.9
million inhabitants with a total number of 14,431 arrivals in 2008, or 3.1 refugee claims per 1,000
inhabitants, while Iceland has a mere 0.03 claims. Roberts, supra note 10, at 1–2.
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Furthermore, what is the state of the law with respect to state
responsibility for protected persons? According to Geneva IV, “persons
protected by the Convention are those who, at a given moment and in any
manner whatsoever, find themselves, in case of a conflict or occupation, in
the hands of a Party to the conflict or Occupying Power of which they are
not nationals.”12 “They shall at all times be humanely treated,”13 not be
treated as enemy aliens,14 and “shall not be transferred to a Power which is
not a Party to the Convention.”15 Even so, the detaining power may only
transfer protected persons after it has “satisfied itself of the willingness and
ability of such transferee Power to apply the present Convention”16 and
“[p]rotected persons who are in occupied territory shall not be deprived, in
any case or in any manner whatsoever, of the benefits of the present
Convention”17 as the result of any agreement concluded between the
authorities of the occupied territories and the occupying power. 18
While Geneva IV conveys a number of rights upon protected persons,
it is less clear how far those rights extend, what specific preconditions need
to be fulfilled before protected persons may be transferred and thus their
status changed, or for what period of time a state’s responsibility towards
protected persons under Geneva IV applies. For instance, while Geneva IV
applies to the protection of civilian persons in times of war and defines
certain obligations of the occupying power, the wording of the above
mentioned articles does not unambiguously explain whether the rules
governing protected persons only apply during occupation. Regardless,
there seems to be room for debate as to when exactly an occupation ends,
when a formerly occupied power gains sovereignty, and when, if at all,
obligations of the former occupying power towards protected persons
expire.
Finally, in regard to persons defined as refugees, in recent years a
certain amount of debate has been revolving around questions as to when
refugee status may be revoked based on a change of circumstances in the
refugee’s country of origin. In accordance with Article 1, Section C(5) of
the Refugee Convention, if circumstances in the country of origin which led
to the granting of refugee status have ceased to exist, refugee status may be
discontinued. However, while a strict interpretation may lead to a
12.
Geneva IV Convention, supra note 4, art. 4.
13.
Id. art. 27.
14.
Id. art. 44.
15.
Id. art. 45.
16.
Id.
17.
18.
Id.
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presumption that states’ responsibility for persons to whom refugee status
has been granted may be discontinued, whenever the initial circumstances
leading to a positive refugee status determination have changed (a
definition of the durability of the required change of circumstances is
nowhere to be found). Hence, even the expiration of states’ obligations
seems to be in dispute.
In sum, while state responsibilities for refugees and other protected
persons de lege lata may be narrowly construed, the less-than-clear
wording of certain provisions, and the imbalance of the current asylum
system on a global level, invite addressing the underlying more generic
questions such as: Does an occupying power carry primary responsibility
for refugees “created” by war or intervention? Is legitimacy of relevance in
that evaluation? Does an occupying power’s granting of protected person
status under Geneva IV expire with the end of occupation? What
responsibilities exist with respect to ensuring the continued well-being of
people once designated as protected persons by an occupying power? And
under what particular conditions may refugee status be revoked, based on a
claim of ceased circumstances in the refugee’s country of origin? Those
questions will be dealt with in the following sections, starting in reverse
order.
1. Legal Consequences: Critique of the Current Legal Framework
Taking the above depiction of the existing legal provisions pertaining
to state responsibility for protected persons during and beyond occupation
as a point of departure, the ensuing account details consequences of a
narrow reading of states’ obligations—indicating where the underlying
legal framework is unclear, blurry, or incoherent.
2. Ceased Circumstances
While Sweden took up the EU Presidency, the EU found itself at a
critical juncture in regard to the creation of a Common European Asylum
System (CEAS). The Reform Treaty, expected to be ratified by all Member
States and enter into force in the course of 2010,19 introduces a system of
integrated management of the EU’s external borders, incorporates the
Charter of Fundamental Rights which guarantees the right to asylum,20 and
expands the competence of the Court of Justice of the European
19. See Dr. Francesco Maiani & Dr. Vigdis Vevstad, Reflection Note on the Evaluation of the
Dublin System and on the Dublin III Proposal, EUR. PARL. DOC. PE 410.690 (Mar. 2009).
20. See Charter of Fundamental Rights of the European Union (EC) 2000/C 364/01 of
December 18, 2000, art. 18, 2000 O.J. (C 364/01).
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Communities (ECJ) with a view to questions of asylum and immigration.21
In that context, a recent request by the German Federal Administrative
Court for a preliminary ruling by the ECJ, with respect to the interpretation
of an article of a European Council Directive,22 gains importance as the
outcome would not only have significance for all EU Member States, but
the subject matter highlights a problem of global reach and contention.
The provision in question, Article 11, Section (1)(e) of Council
Directive 2004/83/EC of April 29, 2004, concerns the cessation of refugee
status because the circumstances in connection with which he or she has
been recognized as a refugee have ceased to exist, a stipulation commonly
referred to as the “ceased circumstances” clause. Article 11, Section (1)(e)
of said Directive is based on Article 1, Section (C)(5) of the 1951 UN
Convention Relating to the Status of Refugees,23 which therefore would be
of relevance in the present case. According to Article 1, Section (A)(2) of
the Refugee Convention and its 1967 Protocol,24 a refugee is a person who
“owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable or, owing to
such fear, is unwilling to avail himself of the protection of that country . . .
.”25 The special protection thus conferred to a person defined as a refugee
shall cease to apply if:
[h]e can no longer, because the circumstances in connection with
which he has been recognized as a refugee have ceased to exist,
continue to refuse to avail himself of the protection of the
country of his nationality; . . . this . . . shall not apply to a refuge .
. . who is able to invoke compelling reasons arising out of
21. Treaty of Lisbon Amending the Treaty on the European Union and the Treaty Establishing
the European Community, Dec. 13, 2007, 2007 OJ (C 306).
22. On April 28, 2008 the German Federal Administrative Court submitted five identical
references for preliminary ruling to the Court of Justice of the European Communities concerning the
interpretation of said Article 11(1)(e) in the following cases: Case C-175/08, Aydin Salahadin Abdullah
v. Fed. Republic of Germany; Case C-176/08, Kamil Hasan v. Fed. Republic of Germany; Case C177/08, Khoshnaw Abdullah v. Fed. Republic of Germany; Case C-178/08, Ahmed Adem and Hamrin
Mosa Rashi v. Fed. Republic of Germany; Case C-179/08, Dler Jamal v. Fed. Republic of Germany,
Court Proceedings (EC) OJ (C 197) of Aug. 2, 2008, 3–5, available at http://eur(last
lex.europa.eu/JOIndex.do?year=2008&serie=C&textfield2=197&Submit=Search&ihmlang=en
23.
See generally Refugee Convention, supra note 2.
24.
See generally Protocol for Status of Refugees, supra note 3.
25.
Refugee Convention, supra note 2, art. 1(A)(2).
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previous persecution for refusing to avail himself of the
26
protection of the country of nationality.
Based on a narrow reading of this provision, in recent years a number
of countries, including Germany, have started returning refugees, especially
from Iraq, to their country of nationality, asserting that circumstances have
sufficiently changed to justify their return. In reviewing refugee status and
interpreting the criteria for cessation, the German authorities have focused
on whether the individual concerned, at the time of the review, faced a risk
of persecution in the country of origin, either in the form of continuation of
the previous danger of persecution or a new risk.27 In order to justify
returning refugees, UNHCR Cessation Guidelines require a change in
circumstances to be:
1)
2)
3)
Fundamental;
Durable; and
To result in effective protection being available in the
28
country of origin.
However, for change to be accepted as fundamental, in the case of
persecution by a State, German courts regarded it as sufficient that the
persecuting regime had lost power. In regard to durability of change, the
only relevant question was whether the former regime was likely to regain
power. Instability resulting from military intervention was considered
irrelevant insofar as there was no likelihood of the return of the previous
regime,29 and the availability of effective protection and general issues of
safety, other than the likelihood of renewed persecution, had not been taken
into account at all.
Thus, neither widespread insecurity, precarious living conditions, nor
the only transitional character of the occupation of Iraq by the multinational
forces were considered as relevant arguments against cessation. In practice,
this approach resulted in the systematic revocation of refugee status,
especially of Iraqis who had fled the regime of Saddam Hussein. However,
26.
Id. art. 1(C)(5).
27. Bundesverfassungsgericht [BVerwG] [Highest Administrative Court] Nov. 1, 2005, 124
Entscheidungen des Bundesverfassungsgerichts [BVerwGE] 276 (F.R.G.). See also UNHCR, Statement
on the “Ceased Circumstances” Clause of the EC Qualification Directive (Aug. 2008), at 9 n.49,
http://www.unhcr.org/protect/PROTECTION/48a2f2a42.pdf (last visited Feb. 7, 2011) [hereinafter EC
Qualification Directive].
28. UNHCR, Guidelines on International Protection: Cessation of Refugee Status under
Article 1(C)(5) and (6) of the 1951 Convention Relating to the Status of Refugees (the “Ceased
Circumstances” Clause), Feb. 10, 2003, HCR/GIP/03/03.
29.
See, e.g., EC Qualification Directive, supra note 27, at 9 n.49.
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in view of the highly volatile security situation in Iraq, invoking the “ceased
circumstances” clause in regard to refugees originating from that country
would seem premature as, in the opinion of the UNHCR, the current
conditions on the ground have neither fundamentally or durably changed—
nor may availability of effective protection be reduced to protection against
a recurring risk of persecution.30
Recognition of refugee status leading to international protection entails
protection against return to a country where the threat of persecution
persists, as enshrined in the principle of non-refoulement,31 but also
includes protection allowing for a life of dignity in the host State.32 The
overarching objective of international protection is “to provide the refugee
with a durable solution in addition to and beyond safety from
persecution.”33 This aspect has to be taken into account when the “mirror
image” of the decision to grant refugee status is considered. If the ECJ had
subscribed to such a reading of the “ceased circumstances” clause in its
ruling, revocation of refugee status throughout the EU and beyond, not least
in regards to refugees from a still fragile, occupied country, would likely
have been reversed in numerous cases,34 based on the principle of nonrefoulement. In fact, the ECJ seems to have followed a middle course in its
Grand Chamber Judgment of March 2, 2010.35 The Judgment did not go as
far as the UNHCR in stressing refugees’ right to a durable solution beyond
safety from persecution, but dismissed the idea of revoking refugee status
solely on the basis of a finding that refugees’ initial fear of persecution no
longer exists, without examining additional conditions relating to the
political situation in their country of origin. More specifically, the Court
held that the competent authorities of the respective Member State have to
“verify that there are no other circumstances which could justify a fear of
30.
EC Qualification Directive, supra note 27, at 11–12.
31. See Council Directive 2004/83, art. 21, 2004 O.J. (L 304) 12 (EC) [hereinafter Council
Directive 2004/83]; Refugee Convention, supra note 2, arts. 3–34.
32. See Council Directive 2004/83, supra note 31, arts. 20, 22–34; Refugee Convention, supra
note 2, arts. 3–34.
33.
EC Qualification Directive, supra note 27, at 15.
34. In Germany alone, a review may apply to up to 14,495 Iraqi refugees whose status had
been revoked between November 2003 and May 2007, based on the authorities’ considerations that the
dangers prevailing in Iraq were general dangers threatening the entire population and, as a general rule,
could not be equated with persecution (i.e., with the singling out of a particular person based on that
person’s specific characteristics or affiliations). As to the number of potentially affected persons, see
EC Qualification Directive, supra note 27, at 5 n.28, 10 n.53.
35. See generally Salahadin Abdulla and Others v. Bundesrepublik Deutschland, C-175/08; C176/08; C-178/08 & C-179/08, European Court of Justice, Mar. 2, 2010, available at
http://www.unhcr.org/refworld/docid/4b8e6ea22.html (last visited Apr. 26, 2011).
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persecution on the part of the person concerned either for the same reason
as that initially at issue or for one of the other reasons set out in Article 2(c)
of the Directive.”36 Furthermore, such:
verification means that the competent authorities must assess, in
particular, the conditions of operation of, on the one hand, the
institutions, authorities and security forces and, on the other, all
groups or bodies of the third country which may, by their action
or inaction, be responsible for acts of persecution against the
37
recipient of refugee status if he returns to that country.
While the ECJ ultimately (and perhaps necessarily) still leaves a
significant margin of appreciation in the hands of national authorities, it
strengthens ramifications of the refugee protection regime by more
rigorously defining the framework for cessation assessments, and the
conditions to be met, if refugee status is to be revoked based on “ceased
circumstances” in the country of origin. Thus, revocation of refugee status
may be expected to be reversed in numerous cases, and even those that are
not reversed may still qualify for subsidiary protection status, or in any case
may not be returned, based on the principle of non-refoulement. That,
however, would constitute a much weaker legal position for the persons
affected, without the prospects of access to a broad set of rights and
permanent residency as the embodiment of a durable solution.38
3. Primary Responsibility
Another important and related aspect concerns the general question of
who bears primary responsibility for refugees in any given situation. The
Refugee Convention obliges all States Parties to cooperate with the
UNHCR in fulfilling its function of supervising the application of the
provisions of the Convention.39 It also prohibits the expulsion or
“refoulement” of a refugee “in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened.”40 The Refugee
Convention itself is silent in regard to distributing the burden of accepting
36.
Id. ¶ 91.
37.
Id. ¶ 71.
38.
Cf. supra note 8.
39.
See Refugee Convention, supra note 2, art. 35.
40.
See Refugee Convention, supra note 2, art. 33(1).
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refugees, which is why, as a point of departure, neighboring states usually
are still left with the main burden of dealing with refugee crises.41
Looking at the Iraqi situation, neither the United States, nor Iraq, are
even States Parties to the Refugee Convention, though the United States is
a State Party to the 1967 Protocol. Furthermore, applicability of the
provisions of the Refugee Convention could be based on customary
international law. But even so, no particular legal obligation to accept a
certain number of refugees may be inferred from those international rules.
Yet, it seems intuitively wrong that of all Iraqi citizens claiming asylum in
2007, half of those claims were made in a small country like Sweden,
where “Sodertalje, a city of 83,000 people, took in more Iraqis than the
United States and Canada combined.”42 In acknowledging heightened
responsibility for refugees stemming from Iraq, especially in regard to
Iraqis that cooperated with the United States and because of this
cooperation have been exposed to reprisals by insurgents, in 2007, the
United States sought to adopt new legislation, the so-called Kennedy Bill.
The Kennedy Bill43 would increase the total intake of Iraqi refugees to the
United States and, among other things, grant preferential status to Iraqi
interpreters and translators seeking resettlement in the United States.44
But a more general claim may be made that an occupying country
always carries primary responsibility for the protection of those who where:
specifically affected by the occupying power’s actions; refugees created by
war or intervention, irrespective of the legitimacy of those acts; and people
who would not have been refugees were it not for preceding actions of
intervening forces. Apart from a potentially increased refugee basis, that is
the “surplus” compared to the number of individuals who regardless of
outside intervention would have been refugees at a relevant juncture, such
state responsibility would all the more apply in regard to those targeted
because of their direct work for the occupying powers or indirect
41. Jordan and Syria, for example, currently combine to host approximately two million Iraqi
refugees, while Western countries accepted only a fraction of that number.
42. See “Little Baghdad” Thrives in Sweden: Sodertalje Has Taken in More Iraqis Than the
U.S., but Mood is Changing, MSNBC, June 19, 2008, available at http://www.msnbc.msn.com/
id/25004140/ (last visited Nov. 10, 2010).
43.
Refugee Crisis in Iraq Act, S. 1651, 100th Cong. (2007) [hereinafter Refugee Crisis in Iraq
Act].
44. See id. § 5. See also Interview with Ambassador James Foley, Senior Coordinator on Iraqi
Refugee Issues, & Tony Edson, Deputy Assistant Secretary of State for Consular Affairs, & Lori
Scialabba, The Department of Homeland Security’s Senior Advisor to the Secretary of Iraqi Refugee
Issues, Briefing on Development in the Iraqi Refugee and Special Immigrant Visa (SIV) Admissions
Programs, U.S. Dep’t. of State, in Washington, D.C. (Feb. 4, 2008), http://20012009.state.gov/p/nea/rls/rm/100030.htm (last visited Feb. 7, 2011).
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cooperation. Despite the potential adoption of the Kennedy Bill, the duty
currently constitutes merely of a moral obligation, not a legal responsibility
akin to a guarantor’s obligation—though it may be time to reconsider that
stance.45
A final matter of concern meriting further scrutiny relates to the
question of honoring previous obligations in the process of transition from
occupation to sovereignty. A point in case pertains to the People’s
Mojahedin Organization of Iran (PMOI), an Iranian opposition group based
in Ashraf City, Iraq. Neutral during the 2003 Iraq War, the group’s
members had been designated as protected persons under the Fourth
Geneva Convention by the U.S. forces and reportedly provided assistance
to counter-terrorism efforts, and intelligence, exposing Iran’s nuclear
program. The Iraqi government, however, while still in negotiations with
the United States with respect to the expiration of the UN mandate of the
multinational forces in Iraq,46 indicated it would claim control over Ashraf
and threatened to expulse the inhabitants, even to their country of origin
where serious reprisals, including torture and death penalties, would await
them.47
After concluding the U.S.-Iraqi Status of Forces Agreement,48
basically handing over responsibility for security in “Iraqi cities, villages,
and localities” to Iraq by June 30, 2009,49 the Iraqi government did not
waste much time carrying out that threat. On July 28, 2009 Iraqi security
forces raided the PMOI camp in Ashraf, assaulting the unarmed Iranian
dissidents inside, wounding several hundred and killing at least seven.50
Despite retaining 50,000 troops in Iraq, the attack showed that the U.S.
45.
See generally Refugee Crisis in Iraq Act, supra note 43.
46.
S.C. Res. 1790, U.N. Doc. S/RES/1790 (Dec. 18, 2007) (expiring Dec. 31, 2008).
47. A decision of the Council of Ministers dated June 17, 2008 stressed that control of the
PMOI should be handed over to the Iraqi government and repeated declarations by Iraqi officials echoed
that claim: Cf. International Federation for Human Rights, Call on the Iraqi Authorities and the USA
(Sept. 9, 2008), http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=printdoc&docid=
48d8da4bc (last visited Feb.7, 2011).
48. Agreement between the United States of America and the Republic of Iraq on the
Withdrawal of the United States Forces from Iraq and the Organization of Their Activities during Their
Temporary Presence in Iraq, U.S.-Iraq, Nov. 17, 2008 (entered into force on Jan. 1, 2009), available at
http://www.globalsecurity.org/military/library/policy/dod/iraq-sofa.htm (last visited Feb. 7, 2011).
49.
Id. art. 24(2).
50. See, e.g., Iran, “Exiles Killed in Iraq Raid”, BBC NEWS, July 29, 2009, available at
http://news.bbc.co.uk/2/hi/middle_east/8175171.stm (last visited Feb. 7, 2011); “L”armée irakienne
prend d’assaut le camp des Moudjahidine du peuple”, LE MONDE, July 28, 2009, available at
http://www.lemonde.fr/proche-orient/article/2009/07/28/l-armee-irakienne-prend-d-assaut-le-camp-desmoudjahidine-du- peuple 1223674 3218.html (last visited Oct. 12, 2010).
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forces were either unable or unwilling (based on their new mandate as well
as considerations of convenience) to interfere and prevent the assault—
mainly monitoring the situation. Questions remain, however, as to the
justifiability of the underlying transfer of responsibility.
The PMOI were granted status as protected persons under Geneva IV
by the U.S. forces in 2004 after lengthy procedures concluded that no
evidence had been found that any of the Ashraf residents had been involved
in prosecutable offenses. Hence, from that time onward, these residents
were under the protection of the United States, as the occupying power, and
any transfer back to the country under occupation, Iraq, would be
preconditioned on living up to the provisions of Article 45, Geneva IV.
Among the most central requirements of that legal rule are that the power to
which protected persons are transferred to is a party to the relevant Geneva
Convention, and that the transferor state, the occupying power or detaining
power, “satisfied itself of the willingness and ability” of the transferee
power, the previously occupied power.51 Once transfer has taken place,
responsibility for the application of the present Fourth Geneva Convention
rests on the accepting power, the transferee or previously occupied power,
while the protected persons are in its custody, and as such an occupying
power might make a claim of exoneration for whatever may happen to
protected persons after the transfer.
However, Article 45, Geneva IV, further requires that if the transferee
power “fails to carry out the provisions of the present Convention in any
important respect,” a condition the killings undoubtedly fulfill, the
occupying power shall “take effective measures to correct the situation or
shall request the return of the protected persons. Such request must be
complied with.”52 To be sure, Article 45 preconditions that request upon
the occupying power “being so notified by the Protecting Power,” the
transferee power, which only adds to the confusion of that legal provision.
However, a teleological reading of Article 45 seems to suggest that the
notification aspect must be regarded as being of subordinate importance.
Otherwise, if, as in the above example, the abuser would be required to
notify another power of its abuse, before that power may “take effective
measures to correct the situation or request the return of the protected
persons,”the provision would appear devoid of meaning.
Irrespective of the underlying political skirmishes and interference on
the part of Iran (the current Shiite dominated Iraqi government maintains
strong ties with Shiite-led Iran) that might have triggered the attacks on
Ashraf, there is a more general question. That question is whether, or to
51.
52.
Id.
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what degree (based on the same reasoning applied in regard to refugees
“created” by conflict), an occupying power is under a special obligation to
ensure the continued protection of those people, once designated as
protected persons, or whether such state responsibility to protect on the part
of an occupier simply expires, if transferred to the occupied state once that
state assumes sovereignty, without the initial designator being under a
continued duty to ensure the well-being of the protected persons?
Furthermore, could such designation as protected persons, under the
Geneva Conventions, be regarded as akin to the granting of refugee status
in the sense that allowing the status of protected persons to be reneged, and
the individuals concerned sent back to the country they fled, amounting to
“refoulement,” which would be contrary to international legal provisions
(such as Article 33 of the Refugee Convention)?
B. De Lege Ferrenda: From Moral to Legal Obligation
As has been outlined above, a country is, as a point of departure, only
responsible for those refugees actually crossing its borders and applying for
refugee status from within that country’s territory, unless it also has made
voluntary pledges to the UNHCR of accepting transfer refugees. There is
no causation requirement included in the Refugee Convention, or other
applicable international law. However, if we agree, bearing in mind the
Iceland example for the sake of argument, that basing responsibility for
refugees merely on geographical proximity, is insufficient, and if we accept
further that disregarding the causal element entirely seems equally
intuitively wrong, how could we work towards incorporating an increased
sense of legally binding burden sharing into the existing legal framework?
While intervention and occupation sometimes may be a necessity, at times
even internationally called for, it is my contention that, irrespective of the
legitimacy of those acts and the good it may do for others, there will always
be people who would not have been refugees were it not for preceding
actions of intervening forces. And, at the very least with respect to those
refugees “created” by war or intervention, the “surplus” refugee basis
compared to the number of individuals who, at the relevant juncture,
anyways would have been refugees for various (internal) reasons and
regardless of outside intervention, a general claim may be made to primary
responsibility of the occupying power.
Assuming certain heightened, primary responsibility of the intervening
power, in any case for the protection of people whose lives were
particularly negatively affected by the intervention, for example, due to
their cooperation with the occupying forces, how could we turn such
responsibility into a legal obligation?
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One plan of action towards solving the issue of responsibility for
protected persons would be to require the occupying power to ensure full
acceptance (i.e., both willingness and ability) of the transferee in regard to
offering continued protection of persons designated as such under Geneva
IV by the occupying power, prior to the transfer of power and prior to the
regaining of full sovereignty of the formerly occupied power. Such an
acceptance could be written into the terms of the sovereignty transfer prior
to withdrawal of the occupying power. To a certain extent, Germany’s
regaining of sovereignty after the Second World War was also conditional
on the acceptance and fulfillment of a number of predefined goals,
including writing and adopting a new constitution, the creation of
democratic institutions, mutatis mutandis. To be sure, the German situation
was one of debellatio,53 which does not occur very often, and is probably
even less frequently desirable. Some situations are, however, comparable
to a certain extent, and may be regarded as akin to the German scenario at
the end of the war to the degree that sovereignty transfer is concerned. In
that sense, also Iraq would have to qualify for such a plan of action, even
though in most other regards it would be distinguishable from Germany in
1945.
Even where debellatio and hence loss and (re)transfer of sovereignty
on an absolute level is not at issue, such commitment on behalf of the
transferee state could be written into Status of Forces Agreements or similar
bilateral treaties between occupying forces and occupied powers. However,
both of the above scenarios would place the main burden on the transferee
state and hence, would not in any significant way contribute towards the
occupying power’s heightened, primary responsibility.
But what if UN assistance, if not outright backing, with respect to
(humanitarian) intervention or consequences of occupation (whether the
intervention or occupation in question was justified or not),54 could be
preconditioned on prior acceptance of primary responsibility for (extra)
53. In other words, the complete subjugation of a belligerent nation usually involving loss of
sovereignty. See, e.g., Merriam-Webster, http://www.merriam-webster.com/dictionary/debellatio (last
visited Apr. 11, 2011).
54. In that regard, also, the UN’s eventually more pragmatic approach in Iraq, where the UN
first felt sidelined, if not outright beguiled and thus kept a distance, trying to improve the dire situation
and contribute, inter alia, to the rebuilding process, even though this was not “their” intervention to
begin with. The UN, for example, only at a significantly later juncture eventually collaborated with the
Iraqi Governing Council (IGC) and the Coalition Provisional Authority (CPA) to establish the
Independent Electoral Commission of Iraq (IECI), which was to decide upon the guidelines for the then
forthcoming elections to the National Assembly. See Tom Syring, Fata Morgana and the Lure of
Law—Rebuilding a War-torn State after Regime Breakdown: Prospects, Limits, and Illusions, in
REBUILDING SUSTAINABLE COMMUNITIES IN IRAQ: POLICIES, PROGRAMS AND INTERNATIONAL
PERSPECTIVES 63 (Adenrele Awotona ed., Cambridge Scholars Publ’g 2008).
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refugee flows that may be expected, i.e., on the prior pledge and provision
of extra means with respect to the aforementioned “surplus” refugees that
almost certainly accompany any intervention. While not being able (and
neither required) to predict the exact number of refugees, or especially
targeted persons, originating from a given conflict, nowadays no one may
claim that extra refugee flows come unexpected in situations of armed
conflict. Such acceptance could take the form of an agreement under UN
auspices, for example, concluded with the UNHCR, where acceptance of a
certain number of extra resettlements could be established—prior to any
military action. To be sure, such a requirement may lead to greater
reluctance with respect to intervening individually (as opposed to not only
UN supported, but UN backed, or Chapter VII action), but would that
necessarily be a bad thing? Considering that military intervention planning
and accounting includes invoices for everything from drones and tanks to
troops and fuel, it is about time that refugees become part of the equation
detailing the costs of armed conflict.
C. Conclusions
The existing legal framework pertaining to state responsibility for
protected persons in times of occupation and beyond is neither conclusive,
nor balanced, and hence, in need of further clarification, if not revision.
Greater efforts at burden-sharing, within regions and on a global level, in
regard to addressing and dealing with the flow of refugees are mandatory.
Burden-sharing will help alleviate the pressure on countries with the most
exposed ports of entry without jeopardizing refugees’ rights to a fair
hearing of their claims to protection.
On the other hand, there seems to be a danger that the “mirror image”
of granting refugee status, i.e., revoking the special protection conferred on
a person once defined as a refugee under the “ceased circumstances”
clause, too swiftly, may be used as a means of returning refugees to their
country of origin. Closely following the legal developments in the ECJ,
other courts of law, and the practice of states will be decisive for a wellbalanced approach to limiting and ultimately revoking claims to protection.
Furthermore, as highlighted by the discussion of the PMOI case,
Article 45, Geneva IV, represents a prime example of an incoherent, if not
inconclusive, legal provision. It also points to a potential inherent
consequence of an occupying power (unwittingly or not) contributing to
acts of refoulement on the part of the transferee state. If, by letting an
occupied state regain sovereignty, which that state abuses by treating those
who previously enjoyed protected persons status as enemies, with or
without actually threatening to expulse them to a third country where they
would have to fear persecution, the designator state, the former occupying
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power, indirectly contributes to a well-founded fear of persecution. The
designator state, therefore, could be required to grant refugee status to
those persons, as their situation then would not be any different from those
of refugees.
Finally, especially with respect to what has been denoted as “surplus”
refugees, where legal obligations akin to the ones stemming from the
Refugee Convention are largely lacking, a greater sense of legal
responsibility assumption or “Verantwortlichmachung”55 is needed. While
reluctance in that regard on the part of states is to be expected, it has been
argued here that moral obligations may be turned into legal obligations, if
political will and legal creativity are present.
Obviously, there are no easy answers to either the question concerning
the “ceased circumstances” clause before the ECJ, or in regard to the
allocation of primary state responsibility for refugees and other protected
persons. The problem with both is that the issues involved pit numerous
legitimate concerns against each other. “Ceased circumstances” deals with
the extent and duration of an individual refugee’s right to protection and a
life of dignity versus a state’s limited resources in accommodating persons
in dire straits. The question of state responsibility pertains not only to
heightened moral, if not legal, obligations associated with occupation, but
also touches more generally on the limits of such responsibilities. When
does an occupation end and complete sovereignty of the occupied state
begin? When and under which circumstances may an occupying power
dispose of its responsibilities to protect those placed in a precarious
predicament, due to the occupying power’s actions, or designated as
protected persons under the Geneva Conventions? How do we balance
legitimate assertions of sovereignty on the part of a previously occupied
state with concerns for the durable safeguarding of refugees and protected
persons under international law?
While days of occupation may be exceptional times, it is all the more
important to ensure that those ultimately and permanently endangered by
the actions of occupying powers receive protection under international law
that outlasts the occupational regime.
55.
“Responsibilization”
A PIRATE AND A REFUGEE: RESERVATIONS AND
RESPONSES IN THE FIGHT AGAINST PIRACY
Tom Syring∗
I.
II.
III.
IV.
CONTINUING THREAT...................................................................... 438
BLURRY LINES TO LACONIA ........................................................... 444
PIRACY AND INTERNATIONAL LAW ................................................ 445
A. Prosecuting Piracy under International Law.......................... 445
B. Domestic Proceedings ............................................................. 447
A PIRATE AND A REFUGEE .............................................................. 455
Despite concerted international cooperation and action, including the
deployment of various national and international naval forces in the region,
piracy, in particular off the coast of Somalia, continues to pose a serious
threat to the peace and security of one of the most-traveled waterways in
the world, the neighboring states, and to the global economy.
Naval deterrence depends on effective patrolling, which again is
closely tied to the concept of jurisdiction and law enforcement. As a point
of departure, piracy is considered to be the original universal jurisdiction
crime and, as such, states apprehending pirates would be able to base their
jurisdiction on that concept. However, in practice, states patrolling the Gulf
of Aden have shied away from prosecuting, sometimes even from arresting,
suspected pirates due to anticipated legal difficulties of prosecution, high
expenses connected with transporting suspects to the national courts of the
apprehending forces, and concerns of potential asylum claims being made
by pirates.
Some of those claims may be rejected based on the Exclusion Clause
in Article 1F of the 1951 Refugee Convention, stipulating that refugee
status may be denied to persons who have committed certain serious crimes.
The majority of arrests, however, by necessity pertains to unsuccessful
pirates and hence involves inchoate acts on the grounds of which a potential
asylum claim, nevertheless, may not as readily be denied.
While failure to adequately address the problem of piracy on the high
seas may reinforce the threat to security in the region and beyond,
insufficiently prepared prosecutions in the various cooperating states’
∗
Co-chair of the International Refugee Law Interest Group of the American Society of
International Law, currently serves at the Norwegian Immigration Appeals Board. He has previously
taught at the University of Oslo and at Boston University as a Lecturer in International Law and Visiting
Fulbright Scholar. The views expressed in this article are those of the author alone and do not
necessarily reflect the views of the Norwegian Immigration Appeals Board.
438
[Vol. 17:2
national courts may add to the fear of not only harboring a pirate, and
lending incentives to future ones, but potentially in this fashion inviting
criminal gangs, or sleeper cells, with even more serious agendas into the
country. Assessing the legal basis of those fears and evaluating ways to
counter the level of threat posed by piracy will be at the core of this article.
I. CONTINUING THREAT
To be sure, although pirate attacks off the coast of Somalia accounted,
by far, for the greatest share of all attacks in recent years, piracy is not an
unknown phenomenon in the waters off Bangladesh, India, Indonesia,
Nigeria, and Tanzania, and thus may be said to constitute a serious global
problem with potentially significant geopolitical repercussions. The
dubious honor of being recognized as a state belonging to a piracy-infested
region adds to the weak state/failed state paradigm, and increases pressure
towards falling into the latter category of that continuum. Having a piracy
problem in one’s backyard exposes the inadequacy of the coastal state’s
patrolling, policing, and prosecutorial capacity and capability; thus, further
undermining the legitimacy of an already weak government and risking
pushing it even closer to the failed state label.
The near global attention Somalia has been receiving in recent years
has in the main been due to the fact that it fits the failed state label all too
well. Hence, in spite of increasing international cooperation and navalmilitary action, piracy, in particular off the coast of Somalia, continues to
threaten the safety, peace, and security of one of the most-frequented
waterways in the world, the states in the region, and, by extension, to
disrupt the global economy.
According to recent numbers, an estimated 21,000 ships pass through
the Gulf of Aden on an annual basis. While the number of acts of piracy
and armed robbery against ships1 reported to the IMO to have occurred in
2009 was 406, against 306 during 2008 and 282 during 2007, the first
four months of 2010 alone resulted in 135 reported incidents (and thus on a
1.
“Piracy” as defined in Article 101 of the 1982 United Nations Convention on the Law of
the Sea (UNCLOS) in the main consists of “any illegal acts of violence or detention, or any act of
depredation, committed for private ends by the crew or the passengers of a private ship . . . and
directed: (i) on the high seas, against another ship . . .” or “against a ship . . . outside the jurisdiction of
any State.” United Nations Convention on the Law of the Sea, art. 101, Dec. 10, 1982, 1833 U.N.T.S.
397, 21 I.L.M. 1261 (1982) [hereinafter UNCLOS]. Armed robbery against ships pertains to a similar
description of unlawful acts taking place “within a State’s jurisdiction over such offences.” Cf. Int’l
Maritime Org. [IMO], Code of Practice for the Investigation of the Crimes of Piracy and Armed
Robbery Against Ships, Res. A 1025(26), annex (Dec. 2, 2009), IMO Doc. A 26/Res 1025 (Jan. 18,
2010).
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par with the 2009 peak level)2 and a decisive reversal of the trend currently
still seems to be quite distant. Taking the extra costs to international
shipping due to significantly increased insurance premiums, avoidance (i.e.,
choosing the alternate route around the Cape of Good Hope, which adds
roughly 3,500 miles to the journey), and deterrence (e.g., heightening
onboard security, deploying frigates, etc.) into account, estimates of the
direct and indirect costs of piracy to the global trade range from $1 billion
to $16 billion.3 In light of those realities, the IMO pursued a three-pronged
approach, aiming at: (1) enhancing individual vessels’ security and alert
level, (2) increasing regional cooperation, and (3) promoting international
military presence in the predominantly affected Gulf of Aden area.
Thus, on September 29, 2009, the IMO’s Maritime Safety Committee
(MSC) updated and revised its guidance on combating piracy and armed
robbery against ships and adopted best management practices to deter and
The guidelines include, for example, various
deal with attacks.4
recommendations with respect to travel routes, manning of engine rooms
and lookouts, and more technical advice relating to preferred modes of
communication and reporting, evasive maneuvering tactics, and fire pump
defensive measures. One of the newest tools in regard to evasion and
prevention pertains to a specifically designed electronic sea map, with live
updates on suspected pirate vessels, weather reports and other observations
plotted in and made available to subscribing ship owners.5 As of today,
such mapping and reporting is mainly carried out individually, within each
shipping company. Despite enhanced on-board security, in light of the still
high-level security threat, the by far preferred modus operandi to most ship
owners would be to avoid the piracy infested shipping lanes off the Somali
coast all together and instead employ alternative routes, for example, going
around South Africa. But, as most shipping companies individually admit,
no one wants to go the extra (sea-) mile alone. Unless the majority of
2.
See Maritime Safety Committee [MSC], MSC 87th Sess. (May 12–24, 2010), available at
http://www.imo.org/MediaCentre/MeetingSummaries/MSC/Pages/MSC-87th-Session.aspx (last visited
Feb. 16, 2011); Maritime Safety Committee [MSC], Revised Guidance on Combating Piracy Agreed by
IMO Maritime Safety Committee, MSC 86th Sess. (May 27–June 5, 2009), available at
http://www.imo.org/newsroom/mainframe.asp?topic_id=1773&doc_id=11478 (last visited Feb. 16,
2011).
3.
PETER CHALK, THE MARITIME DIMENSIONS OF INTERNATIONAL SECURITY: TERRORISM,
PIRACY AND CHALLENGES FOR THE UNITED STATES 16 (RAND Corp., 2008), available at
http://www.rand.org/pubs/monographs/2008/RAND_MG697.pdf (last visited Mar. 14, 2011).
4.
Int’l Maritime Org. [IMO], Best Management Practices to Deter Piracy in the Gulf of
Aden, IMO Doc. MSC, 1/Circ., 1335 (Sept. 29, 2009).
5.
See, e.g., Sjørøverkart som skal hindre angrep [Piracy Map to Avoid Attacks],
AFTENPOSTEN, Aug. 5, 2010.
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companies collectively follow through with such plans, no one wants to
carry the extra cost to competitiveness, spending more time and fuel on a
substantially longer journey.6
As to fostering regional cooperation and coordinating governments’
action, the IMO adopted a Code of Practice for the Investigation of Crimes
of Piracy and Armed Robbery Against Ships (Code of Practice),7 which,
inter alia, urges governments to take action, in accordance with the Code,
to investigate all acts of piracy and armed robbery against ships occurring
in areas or on-board ships under their jurisdiction, and to report to the
Organization pertinent information on all investigations and prosecutions
concerning such acts. Apart from encouraging states to take necessary
national legislative, judicial, and law enforcement action as to be able to
receive, prosecute, or extradite any pirates or suspected pirates and armed
robbers arrested by warships or military aircraft,8 the Code is meant to be a
source of best practice and “to provide Member States with an aidemémoire to facilitate the investigation of the crimes of piracy and armed
robbery against ships.”9
Furthermore, in January 2009 the IMO convened a meeting in Djibouti
of states in the region, adopting a Code of Conduct Concerning the
Repression of Piracy and Armed Robbery against Ships in the Western
Indian Ocean and the Gulf of Aden (the so-called Djibouti Code of
Conduct),10 in which the signatories declared their intention to cooperate to
the fullest possible extent, and in a manner consistent with international
law, in the repression of such attacks against ships. The state signatories
committed themselves towards sharing and reporting relevant information
through a system of national focal points and information centers,
interdicting ships suspected of engaging in acts of piracy and other attacks
against ships, ensuring that persons committing or attempting to commit
such prohibited acts are apprehended and prosecuted, and facilitating
6.
See, e.g., Avverget piratangrep mot norsk skip i Adenbukta [Fought off Pirate Attack
against Norwegian Vessel in the Gulf of Aden], AFTENPOSTEN, Aug. 4, 2010. That point was further
underlined by the head of the Norwegian Ship Owner’s Association on the occasion of a recent
Norwegian Institute of International Affairs conference. See Norwegian Institute of Int’l Affairs
[NUPI], Agenda 2010: Responsibility and Global Governance, Oslo, Norway (Sept. 16, 2010).
7.
Int’l Maritime Org. [IMO], Code of Practices for the Investigation of Crimes of Piracy
and Armed Robbery Against Ships, IMO Assembly Res. A 1025(29), Annex (Dec. 2, 2009).
8.
Id. art. 3.1.
9.
Id. art. 1.
10. Int’l Maritime Org. [IMO], The Code of Conduct Concerning the Repression of Piracy
and Armed Robbery Against Ships in the Western Indian Ocean and Gulf of Aden, IMO 101st Sess.
(Jan. 26–29, 2009), available at http://www.fco.gov.uk/resources/en/pdf/pdf9/piracy-djibouti-meeting
(last visited Feb. 16, 2011) [hereinafter Djibouti Code of Conduct].
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proper care, treatment, and repatriation for affected crews and passengers,
particular those who have been subjected to violence.
More specifically, according to Article 8 of the Djibouti Code of
Conduct, in order to facilitate information sharing and coordination,
participating states are requested to use the piracy information exchange
centers established in Kenya, Tanzania, and Yemen, respectively.
Furthermore, in order to allow for the prosecution, conviction, and
punishment of those involved in piracy or armed robbery against ships, and
to facilitate extradition, or handing over when prosecution is not possible,
each participating state declared its intention “to review its national
legislation with a view towards ensuring that there are national laws in
place to criminalize piracy and armed robbery . . . and adequate guidelines
for the exercise of jurisdiction, conduct of investigations, and prosecutions
of alleged offenders.”11
Acknowledging that the current Djibouti Code of Conduct is mainly of
declaratory value, Article 13 expresses the participating states’ intention to
consult, “within two years of the effective date of this Code of Conduct . . .
with the assistance of IMO, with the aim of arriving at a binding
12
agreement.”
Finally, realizing that successful regional cooperation also would
depend on international naval assistance, the IMO has been at the forefront
of organizations and states to bring the piracy problem to the attention of
the UN Security Council,13 which, on November 23, 2010, adopted its latest
enforcement action resolution concerning the situation in Somalia.14
Recalling its previous resolutions with regard to Somalia,15 in UN SC Res.
1950 the Security Council, acting under Chapter VII of the UN Charter,
decided to renew for an additional twelve months the authorization granted
to Member States in preceding resolutions, pertaining to taking action
against pirates in Somali territorial waters (“hot pursuit”16) and extending
11.
Id. art. 11.
12.
Djibouti Code of Conduct, supra note 10, art. 13.
13. Tom Syring, Recent Developments: UNCHR and IMO Address Plight of Refugees at Sea,
New Threats Loom, INT’L MARITIME ORG. [IMO], available at http://www.asil.org/rio/imo.html (last
14.
S.C. Res. 1950, U.N. Doc. S/RES/1950 (Nov. 23, 2010).
15. S.C. Res. 1897, U.N. Doc. S/RES/1897 (Nov. 30, 2009); S.C. Res. 1814, U.N. Doc.
S/RES/1814 (May 15, 2008); S.C. Res. 1816, U.N. Doc. S/RES/1816 (June 2, 2008); S.C. Res. 1838,
U.N. Doc. S/RES/1838 (Oct. 7, 2008); S.C. Res. 1844, U.N. Doc. S/RES/1844 (Nov. 20, 2008); S.C.
Res. 1846, U.N. Doc. S/RES/1846 (Dec. 2, 2008); S.C. Res. 1851, U.N. Doc. S/RES/1851 (Dec. 16,
2008).
16. In other words, allowing pirates to be chased from the high seas into Somali territorial
waters, thus preventing pirates’ “hit-and-run” tactics.
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the scope of permissible military force even to certain land-based
operations in the Somalia mainland.17 This UN SC Res. 1950 also focused
on holding persons suspected of piracy accountable for their acts by calling
for increased efforts to prosecute Somali pirates.18
Based on these resolutions, states have intensified their presence in the
Gulf of Aden, with the United States, United Kingdom, French, and Indian
navies initially leading the way, now also joined, for example, by a Chinese
naval deployment, and the first-ever European Union-led naval force
(EUNAVFOR) executing operation “Atalanta.”19 With presence, however,
comes the problem of effective patrolling, which again is closely tied to the
concept of jurisdiction and law enforcement. As a point of departure,
piracy is considered to be the original universal jurisdiction crime and, as
such, states apprehending pirates would be able to base their jurisdiction on
that concept.20 However, in practice, states patrolling the Gulf of Aden
have shied away from prosecuting, sometimes even from arresting,21
suspected pirates due to anticipated legal difficulties and expenses. Yet,
without serious and visible efforts at prosecution and punishment, the
preventive and deterring effect of increased patrols is at best reduced.
Some of the main concerns of states pertain to the rather small window
of opportunity for catching suspected persons “in the act,”22 and the
17. The resolution noted that it was passed with the consent of, and following several requests
for international assistance from, the Transitional Federal Government (TFG) of Somalia. See S.C. Res.
1950, U.N. Doc. S/RES/1950 (Nov. 23, 2010). UN SC Res. 1851 had noted in paragraph 6 that “States
and regional organizations cooperating in the fight against piracy . . . off the coast of Somalia . . . ‘may
undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of
piracy. . . .’” S.C. Res. 1851, U.N. Doc. S/RES/1851 (Dec. 16, 2008).
18. In paragraph 13, the Security Council “[c]alls on all States, including States in the region,
to criminalize piracy under their domestic law and favorably consider the prosecution of suspected, and
imprisonment of convicted, pirates apprehended off the coast of Somalia, consistent with applicable
international human rights law.” S.C. Res. 1950, U.N. Doc. S/RES/1950 (Nov. 23, 2010). See also J.
Ashley Roach, Agora: Piracy Prosecutions—Countering Piracy Off Somalia: International Law and
International Institutions, 104 AM. J. INT’L L. 397, 407 (2010).
19. Established according to EU Council Joint Action 2008/851/CFSP (Nov. 10, 2008)
framework, 2008 O.J. (L 301) 8.
20. UNCLOS, supra note 1, art. 105 (establishing the right of every State to sieze a pirate
ship and prosecute acts of piracy).
21. Marie Woolf, Pirates Can Claim UK Asylum, SUNDAY TIMES, Apr. 13, 2008,
http://www.timesonline.co.uk/tol/news/uk/article3736239.ece (last visited Feb. 23, 2011) (noting that in
2008, the British Foreign Office reportedly instructed the Royal Navy not to turn pirates over to
Somalia, in fact, not to take them on-board at all, due to concerns they could claim asylum under
European human rights laws).
22. Often, there are no more than fifteen minutes between a pirate attack being launched and
the action being concluded.
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problematic status of pirates. Prior to the launch, a pirate vessel may
merely appear as a fishing boat and by quickly disposing of weapons by
throwing them overboard, any evidence to the contrary soon rests safely on
the seabed. On the other hand, under international law pirates are
considered to be non-combatants,23 which put, for example, further
constraints on navies’ “rules of engagement.” Furthermore, the modalities
of apprehension may impose additional difficulties on any ensuing
prosecutions; as many pirates are detained under circumstances that
resemble the battlefield conditions criticized in regard to the apprehension
of many Guantánamo Bay detainees, “where evidence was not collected or
preserved as required for prosecution.”24
Realizing the shortcomings and limitations of increased naval presence
in the face of the 2009 attacks on the U.S. vessels Maersk Alabama and
Liberty Sun, a new legal initiative in the United States, building upon the
IMO’s guidelines with respect to enhancing vessels’ security level, intends
to allow other mariners to defend their vessels and be protected by law
when doing so. The U.S. Mariner and Vessel Protection Act of 2009,25 if
passed, would provide U.S. Mariners with immunity in U.S. Courts if they
wound or kill pirates whilst responding to a pirate attack. The Act,
proposed by Rep. Frank LoBiondo, charges the U.S. Coast Guard with
certifying firearms training for merchant vessels and provides for any
trained mariner using force plus owner, operator, or master of the respective
vessels to be exempted from liability in U.S. Courts as a result of such use
of force. Furthermore, the Act directs the United States to negotiate
international agreements through the IMO to provide similar exemptions
from liability in other countries for the use of force by mariners and vessel
owners, operators, or masters, as well as to ensure that armed U.S. crews
can enter foreign ports. It also contains plans to authorize deployment of
Coast Guard Maritime Safety and Security Teams (MSST) to ride aboard
and defend U.S. flagged vessels transiting piracy prone waters. The
initiative is carried in an amendment to the National Defense Authorization
Act.
23. See, e.g., Eugene Kontorovich, International Legal Responses to Piracy off the Coast of
Somalia, 13 AM. SOC. INT’L L. 2 (2009).
24. John R. Crook, Contemporary Practice of the United States Relating to International Law:
Closing Guantánamo Proves Difficult—Khadr’s Military Commission Trial Set for August, 104 AM. J.
INT’L L. 506–07 (2010). Cf. Charlie Savage, No Terror Evidence Against Some Detainees, N.Y. TIMES,
May 29, 2010, at A12.
25. United States Mariner and Vessel Protection Act of 2009, H.R. 2984, 111th Cong. (2009)
(introduced on June 19, 2009, referred to the Subcommittee on Border, Maritime, and Global
Counterterrorism on July 7, 2009).
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II. BLURRY LINES TO LACONIA
While all attempts at containing the threats posed by piracy, in general,
are laudable endeavors, the various initiatives and measures, initiated or
adopted by the IMO and other national and international actors, display
shortcomings to varying degrees. The Code of Practice represents little
more than a handbook for investigating piracy crimes, stating best practices,
but containing few commitments on the part of participating states.
Likewise, the Djibouti Code of Conduct enlists important coordination and
cooperation obligations, but a legally binding agreement is not to be
expected until 2011. The MSC guidelines, on the other hand, include
various immediately practical recommendations in regard to combating
piracy and armed robbery; although, the success of those measures also
depends, to a certain extent, on the participation and coordination of
international naval forces. Finally, considering dependence on (foreign)
military cooperation, measures such as those stipulated in the U.S. Mariner
and Vessel Protection Act of 2009 may be understandable. However,
manning civilian vessels with armed seafarers (and encouraging the use of
force to fight off presumed pirates with pledges of liability exemptions),
may lead, once again, to a dangerously blurry line between civilians and
combatants, while concomitantly contributing to an escalation of violence
on the high seas. What had once been realized as a lethal dilemma of
international law, culminating in the Laconia affair during World War II,26
might still be a non-commendable idea in the present circumstances.
In any case, ultimately, as also UN SC Res. 1897 acknowledges, a
solution to piracy off the coast of Somalia lies ashore. That, however,
would require intense institution or even state building efforts which, in the
foreseeable future, does not seem feasible. In fact, despite years of
internationally supported capacity-building efforts, the weak so-called
Transitional Federal Government (TFG) in Somalia has yet to manage to
agree upon the text of a badly needed new constitution;27 accommodating
the various competing clans, and barely controlling more than a fraction of
the capital Mogadishu, not to mention of the entire country—and even that
rather tiny bit of control is based on foreign support. Thus, as of now,
international patrolling, deterrence by apprehending and prosecuting, and
26. Pertaining, roughly speaking, to the question of whether a submarine encountering an
(armed) merchant ship may treat that ship as a military vessel and its crew as combatants.
27. The Project, MAX PLANCK INST. FOR COMP. PUB. L. & INT’L L., Mar. 16, 2011,
http://www.mpil.de/ww/en/pub/research/details/know_transfer/somalia/the_projects.cfm (last visited
Mar. 28, 2011) (establishing that ongoing procrastination and lack of progress has led the Max Planck
Institute, one of the legal capacity building partners, to characterize the constitution-drafting process as
“decelerating”).
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capacity building in the (surrounding) region, seems the closest one may get
to enhancing the Somali state as such, hoping that regional spill-over effects
will eventually ensue and also positively affect Somalia.
III. PIRACY AND INTERNATIONAL LAW
Any efforts at combating piracy are additionally complicated by the
fact that even where pirates have been apprehended and apparently
sufficient evidence has been collected, most of the countries comprising the
international naval forces show little interest in actually prosecuting the
attackers, for fear of high expenses connected with transporting suspects to
the national courts of the apprehending forces, and concerns of potential
asylum claims being made by pirates. Instead, and in lack of an
international court alternative, transfer to a third country has been favored
as a compromise and, as of now, Somalia’s neighbor Kenya has emerged as
the leading national location for piracy trials. Thus, in spite of the fact that
Article 105 of the United Nations Convention on the Law of the Sea
(UNCLOS)28 not only provides that “every State may seize a pirate ship”
on the high seas,29 but also stipulates that prosecution of the apprehended
suspects should be by “[t]he courts of the state which carried out the
seizure;”30 there suspected pirates have increasingly been transferred to
Kenyan authorities. As part of the European Union-led operation
“Atalanta,” in 2009 the EU, for example, concluded an agreement with the
government of Kenya for the transfer and trial of persons suspected of
having committed acts of piracy.31
A. Prosecuting Piracy under International Law
But what exactly is the legal basis for piracy prosecutions, and is there
a duty to prosecute that pertains to all, or to certain states? As pointed out
above, the UNCLOS, in particular Article 105, may be employed to
28.
UNCLOS, supra note 1, art. 105.
29. The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation, Mar. 10, 1988, 1678 U.N.T.S. 222, 27 I.L.M. 672 (1988) (entered into force Mar. 1, 1992)
(demonstrating the basis of jurisdiction where pirates are not apprehended on the high seas, but for
example, following a “hot pursuit,” have been seized in Somali territorial waters) [hereinafter SUA
Convention].
30.
UNCLOS, supra note 1, art. 105 (emphasis added).
31. See Exchange of Letters on the Conditions and Modalities for the Transfer of Persons
Suspected of Having Committed Acts of Piracy and Detained by the European Union–Led Naval Force
(EUNAVFOR), and Seized Property in the Possession of EUNAVFOR, from EUNAVFOR to Kenya
for Their Treatment After Such Transfer, EU-Kenya, Mar. 6, 2009, 2009 O.J. (L 79) 49, reprinted in 48
I.L.M. 751 (2009).
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establish a right of every state to seize a suspected pirate ship, apprehend,
and try suspected persons. That Convention, along with international
customary law both preceding and exceeding the ensuing codification of
some of the international norms governing maritime law, established
universal jurisdiction over acts of piracy.
On the high seas, or in any other place outside the jurisdiction of
any State, every State may seize a pirate ship or aircraft, or a ship
or aircraft taken by piracy and under the control of pirates, and
arrest the persons and seize the property on board. The courts of
the State which carried out the seizure may decide upon the
32
penalties to be imposed. . . .
Nothing in the UNCLOS, however, imposes a duty on State Parties to
prosecute, or, for that matter, any other legal obligations, save one: Article
100 of the UNCLOS, which underlines that “[a]ll States shall cooperate to
the fullest possible extent in the repression of piracy on the high seas or in
any other place outside the jurisdiction of any State.”33 While everything
else appears voluntary, merely authorizing states to act, Article 100 may be
read as a specific obligation to act to repress piracy, although no particular
guidance is offered in the treaty text as to the nature of the required
cooperation. To be sure, when discussing earlier drafts of the UNCLOS
predecessor, the International Law Commission “had sought to put some
teeth”34 into the relevant article pertaining to the duty to cooperate in its
commentary on draft Article 38, stipulating that “[a]ny State having an
opportunity of taking measures against piracy, and neglecting to do so,
would be failing in a duty laid upon it by international law.”35 However,
the draft article adds that “[o]bviously, the State must be allowed a certain
latitude as to the measures it should take to this end in any individual
case.”36 Read against that backdrop, the latitude bestowed on states in
cooperating “to the fullest possible extent” in Article 100 of the UNCLOS
seems to be substantial and hence, even that obligation appears to be rather
vague. In sum, the legal basis for piracy prosecutions may be found in
customary international law and its codification in UNCLOS, Articles 105
and 100. However, neither customary international law, treaty law such as
32.
33.
34.
Roach, supra note 18, at 405.
35. Report of the International Law Commission on the Work of Its Eighth Session, [1956] 2
Y.B. INT’L L. COMM ’N 253, at 282, U.N. GAOR, 11th Sess., Supp. No. 9, U.N. Doc. A/3159 (1956)
(commenting on the draft of Article 38) [hereinafter ILC Report].
36.
Id.
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UNCLOS, nor the travaux préparatoires seem to impose a clear duty on
states to prosecute piracy.
Furthermore, prosecutions for certain piratical acts may also be based
on various, widely ratified international criminal law treaties, such as the
Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation (SUA Convention),37 the International Convention
Against the Taking of Hostages of 1979 (Hostages Convention),38 the
International Convention for the Suppression of the Financing of Terrorism
of 1999 (Terrorism Financing Convention),39 and the United Nations
Convention Against Transnational Organized Crime of 2000 (TOC
Convention).40 While none of these treaties address the boarding of
suspected pirate vessels, and as such maintain the traditional rule of
exclusivity of flag state jurisdiction, they potentially cover a broad range of
piracy support activities. Those include hostage taking of crews, acting as
an organized criminal group across borders, and, not least, the provision of
supplying equipment and funds to the entire criminal enterprise, without
which most pirate endeavors never would have seen the light of day,
considering the substantial investments necessary to acquire, for example,
rocket-propelled grenades and other sophisticated assault hardware.
If properly implemented under domestic law, these treaties may be
useful tools in the suppression of pirate activities. Yet, as of now they have
been virtually absent in any attempts at addressing piracy off the coast of
Somalia, or for that matter, elsewhere, and point to the challenges any
domestic prosecution faces, besides willingness on the part of states:
implementation of international treaties and adoption of modern national
laws governing the prosecution of piracy.
B. Domestic Proceedings
To date, there is no international court or other international institution
in existence which would have jurisdiction over the crime of piracy and
hence, domestic proceedings are the only feasible alternative. To be sure,
in theory the Rome Statute of the International Criminal Court (ICC) could
37.
SUA Convention, supra note 29.
38. International Convention Against the Taking of Hostages, Dec. 17, 1979, 1316 U.N.T.S.
205, 18 I.L.M. 1456 (1979).
39. International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999,
G.A. Res. 54/109, 39 I.L.M. 270 (2000).
40. United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, S.
Treaty Doc. No. 108-16 (2004), 2225 U.N.T.S. 209. As of June 2010, the SUA Convention had 165
State Parties, the Hostage Convention had 167 parties, the Terrorism Financing Convention had 173
parties, and the TOC Convention had 155 parties.
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be amended such as to cover the crime of piracy. The mere thought of such
a proposal, however, met with significant opposition prior to the 2010
Review Conference of the ICC, and thus, was never really an option. Apart
from financial and organizational concerns, the gist of the argument against
inclusion of piracy and other treaty-based crimes, under the auspices of the
ICC, was a concern that it would overwhelm and trivialize the Court.
Considering that the ICC had been established to deal, according to its
Preamble, with the “most serious crimes of concern to the international
community,”41 the broadly conveyed sense was that, for all its potential
graveness, piracy per se did not, in general, rise to such a level of
seriousness from an international point of view. After all, for example, UN
SC Res. 1816 and 1838, adopted under Chapter VII of the UN Charter and
constituting enforcement action that presupposes a threat to peace and
security, did not actually regard piracy per se as constituting such a threat.
In fact, those resolutions more generally indicated “that the incidents of
piracy and armed robbery against vessels in the territorial waters of Somalia
and the high seas off the coast of Somalia exacerbate the situation in
Somalia which continues to constitute a threat against international peace
and security in the region.”42
Piracy by itself was not deemed to represent a sufficiently serious
threat such as to endanger international peace and security and hence, as of
now, domestic prosecutions remain the sole venue for trying suspected
pirates.
Following UN SC Res. 1851 of December 16, 2008, where the
Security Council had urged states willing to prosecute piracy to enter into
agreements with states and organizations mainly involved in patrolling the
coast and physically involved in fighting piracy, Kenya concluded
agreements with, inter alia, the United Kingdom, the United States, and the
European Union, and emerged as the hub of piracy prosecutions. In the
wake of those agreements, at least ten cases involving seventy-six
suspected pirates had been brought in the Mombasa courts as of August 31,
2009. Kenya’s willingness appears to be in stark contrast to the rather
reluctant practice in that regard on the side of the states actively involved in
patrolling waters off the coast of Somalia.43 The emerging picture thus far
41. Rome Statute of the International Criminal Court, pmbl., July 17, 1998, 2187 U.N.T.S. 90,
37 I.L.M. 999 (1998).
42. S.C. Res. 1838, U.N. Doc. S/RES/1838 (Oct. 7, 2008) (emphasis added); S.C. Res. 1816,
U.N. Doc. S/RES/1816 (June 2, 2008) (emphasis added).
43. See generally United States v. Musé, No. 9-CR-512 (S.D.N.Y. filed May 19, 2009)
(charging the defendant, inter alia, with piracy against the U.S.-flagged M/V Maersk Alabama on the
high seas and, armed with a firearm, hijacking it by force and detaining its captain in a lifeboat on or
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is that states taking part in the international naval presence in the Gulf of
Aden may, if at all,44 try suspected pirates who attack ships of those states’
nationality, or with nationals of those states being affected, for example, as
crew members. Where no such nexus may be established, avoidance of
active prosecution seems to be the general trend,45 sometimes to the
detriment of the apprehended persons. For example, in May 2010 the
Russian navy captured, and a few days later released, suspected pirates,
instead of bringing them in with a view to initiating proceedings. Rather,
the Somali men reportedly were released far at sea in a small rubber boat,
rendering their chances of survival uncertain.46
Overall, piracy
prosecutions in countries other than Kenya have thus far been almost
absent. However, recent refusal on the part of Kenya to continue accepting
pirates for trial, formally blamed on not having received the assistance in
bearing the burden of prosecution promised by its partners in the bilateral
agreements, may alter that trend. In fact, that refusal has already resulted in
a couple of recent indictments in, for example, both the United States47 and
Germany,48 cases that otherwise would have been transferred to Kenya.
In April 2010, the U.S. Attorney’s Office for the Eastern District of
Virginia announced the indictment of eleven men from Somalia on charges
that included piracy. Five were charged in connection with a failed
nighttime assault on March 31, 2010 on the USS Nicholas, a U.S. Navy
frigate that the attackers apparently mistakenly thought was an unarmed
merchant ship. The other six men were charged in connection with an
unsuccessful early morning attack on or about April 10, 2010 on the USS
about Apr. 8–12, 2009), Superseding Indictment (S.D.N.Y. filed Jan. 12, 2010) (adding a charge of
hijacking two non-U.S.-flagged ships before the Maersk Alabama).
44. As an example to the contrary, i.e., despite the existence of such a nexus, in May 2010,
for example, the Russian navy released a group of Somali pirates captured a couple of days earlier in an
operation to recover a seized Russian tanker, apparently due to lack of a clear legal basis for prosecuting
them. See Ellen Barry, Russia Frees Somali Pirates It Had Seized in Shootout, N.Y. TIMES, May
8, 2010, at A4.
45. Cf. The chief prosecutor in Hamburg, Germany, where pirates caught by that country most
likely would be tried, who has been quoted as stating: “[T]he German judicial system cannot, and should
not, act as World Police. Active prosecution measures will only be initiated if the German State has a
particular, well-defined interest. . . .” Ewald Brandt, Prosecution of Acts of Piracy off Somalia by
German Prosecution Authorities, Presentation at the International Foundation for Law of the Sea
Conference, Piracy—Scourge of Humanity (Apr. 24, 2009).
46.
Anne Appelbaum, The Rule of Law Walks the Plank, WASH. POST, May 18, 2010, at A19.
47. See, e.g., United States v. Hasan, No. 10-CR-56, 2010 WL 4281892 (E.D. Va. Oct. 29,
2010); United States v. Said, No. 10-CR-57, 2010 WL 3893761 (E.D. Va. Aug. 17, 2010).
48. See generally Matthias Gebauer, Horand Knaup & Marcel Rosenbach, First Trial of
Somali Pirates Poses Headache for Germany, DER SPIEGEL ONLINE, Apr. 20, 2010,
http://www.spiegel.de/international/world/0,1518,689745,00.html (last visited Mar. 22, 2011).
450
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Ashland, an amphibious assault ship. Both vessels were homeported in
Virginia, in Norfolk and Little Creek respectively; hence, the locus of the
indictment. All eleven men were charged with piracy, which, according to
18 U.S.C. § 1651, carries a mandatory penalty of life in prison.49 In
addition, the indictment also charged them with:
Attack to plunder a vessel, which carries a maximum of 10 years
in prison; [a]ssault with a dangerous weapon in the special
maritime jurisdiction, which carries a maximum of 10 years in
prison; [c]onspiracy to use firearms during a crime of violence,
which carries a maximum of 20 years in prison; [u]se of a firearm
during a crime of violence, which carry a mandatory minimum of
10 years in prison and a maximum of life in prison if convicted
of one count. The five men charged in the indictment involving
the U.S.S. Nicholas face two firearm counts, which would carry
an additional minimum of 25 years—to equal 35 years—in
50
prison if convicted of both counts.
After pleading guilty on August 6, 2010 to attacking so to plunder a
vessel, engaging in an act of violence against persons on a vessel, and using
a firearm during a crime of violence, Jama Idle Ibrahim, one of the six men
involved in the attack on the USS Ashland, was sentenced to thirty years in
prison on November 29, 2010.51 The piracy charges against the six men,
however, had initially been dismissed by the federal district judge on
August 17, 2010 on the grounds that firing a weapon at a ship to force it to
stop and be boarded did not amount to an act of piracy. In analyzing the
piracy statute, 18 U.S.C. § 1651, the district court followed the defendants’
lawyers in applying the Supreme Court’s definition of piracy as “robbery at
sea” from the 1820 case of United States v. Smith.52 As there was no
robbery alleged in the USS Ashland case, the court rejected charges of
49. “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations,
and is afterwards brought into or found in the United States, shall be imprisoned for life.” 18 U.S.C. §
1651 (1945).
50. See Press Release, United States Attorney’s Office, Eastern District of Virginia, Alleged
Somali Pirates Indicted for Attacks on Navy Ships (Apr. 23, 2010), available at
http://www.justice.gov/usao/vae/Pressreleases/04-AprilPDFArchive/10/20100423piratenr.html
(last
51. Press Release, United States Attorney’s Office, Eastern District of Virginia, Somali
Sentenced for Acts of Piracy Against the USS Ashland (Nov. 29, 2010), available at
http://www.justice.gov/usao/vae/Pressrelease/11NovemberPDFArchive/10/20101129ibrahimnr.html
52.
United States v. Smith, 18 U.S. 153 (1820).
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piracy.53 The district court apparently did not take account of the fact that
Article 15(3) of the 1958 Geneva Convention on the High Seas,54 to which
the United States is a party and which therefore, according to Article VI § 2
of the U.S. Constitution, forms part of the “supreme law of the land,”
defines piracy as including “any act of inciting or of intentionally
facilitating an act described” as piracy in the two preceding paragraphs.55
Two months later, a different judge in the same district court reached the
opposite conclusion, upholding charges of piracy.56
In the only other pending U.S. prosecution involving Somali pirates,
Abduwali Abdukhadir Musé, charged, inter alia, in connection with the
April 2009 attack on the Maersk Alabama, on May 18, 2010 pleaded guilty
in a Manhattan federal court to two felony counts of hijacking maritime
vessels, two felony counts of kidnapping, and two felony counts of hostagetaking. Musé’s guilty plea pertained foremost to his participation in the
April 8, 2009 hijacking of the Maersk Alabama container ship in the Indian
Ocean, and the subsequent taking of the captain of the ship as a hostage, in
addition to his participation in the hijacking of two other vessels in late
March and early April of 2009 and related hostage-taking. Prosecutors
reportedly will seek a sentence between twenty-seven and thirty-three years
imprisonment.57 Commenting on the case, Preet Bharara, the U.S. Attorney
for the Southern District of New York, underlined that the Maersk Alabama
hijacking and the events leading up to it “make clear that modern-day
piracy is a crime against the international community and a form of
terrorism on the high seas.”58 On February 16, 2011, Musé was sentenced
53. See generally John Schwartz, Somalis No Longer Face Federal Piracy Charges, N.Y.
TIMES, Aug. 18, 2010, at A16.
54. United Nations Convention on the High Seas, art. 15(3), Sept. 30, 1962, 13 U.S.T. 2312,
T.I.A.S. No. 5200, 450 U.N.T.S. 82.
55. U.S. CONST. art. VI, § 2. The United States appealed this decision to the U.S. Fourth
Circuit Court of Appeals: United States v. Said, No. 09-7168, 2010 WL 331416, at *1 (4th Cir. Jan. 26,
2010).
56. See Opinion and Order, United States v. Hasan, No. 10-CR-56, 2010 WL 4281892 (E.D.
Va. Oct. 29, 2010).
57. See Ray Rivera, Somali Man Pleads Guilty in 2009 Hijacking of Ship, N.Y. TIMES, May
19, 2010, at A21; Cheryl Robinson, Somali Pirate Pleads Guilty in Maersk Alabama Hijacking,
CNN.COM, May 18, 2010, http://articles.cnn.com/2010-05-18/justice/new.york.pirate.plea_1_maerskalabama-hijacking-somali?_s=PM:CRIME (last visited Mar. 22, 2011).
58. Press Release, Department of Justice, Federal Bureau of Investigations, Somali Pirate
Pleads Guilty in Manhattan Federal Court to Maritime Hijackings, Kidnappings, and Hostage Takings
(May 18, 2010), available at http://newyork.fbi.gov/dojpressrel/pressrel10/nyfo051810c.htm (last
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to thirty-three years and nine months in prison, the maximum penalty under
the stipulated sentencing-guideline range.59
In the first piracy related case before German courts in about 400
years, the indictment charges the ten suspects with the joint criminal
enterprise of disrupting maritime traffic along with hostage-taking and
extortion, punishable according to sections 316c and 239a of the German
Criminal Code. The Somali men are accused of attacking the MS Taipan
some 530 nautical miles east of the Horn of Africa. The crew evaded
capture by hiding in a so-called “panic room.” Dutch naval forces, as part
of the EUNAVFOR operation “Atalanta,” eventually boarded the ship,
apprehended the pirates, and handed them over to Germany. According to
the District Attorney’s Office, in case of conviction the pirates face a
maximum sentence of fifteen years of imprisonment. Among preliminary
objections raised by the defense team at the beginning of the trial were
questions as to the legality of the capture by Dutch naval forces and
subsequent extradition to Germany. The trial is taking place in the district
court of Hamburg, the home port of the MS Taipan.60
What is worth noting is that while the piracy related cases before U.S.
courts were mainly based on a specific piracy provision in the U.S. penal
code (18 U.S.C. § 1651), referring to the “crime of piracy as defined by the
law of nations,” whereas the German case, in lack of such an explicit legal
provision, is based on provisions of the penal code that may, for the most
part, be applied to a broad range of criminal activities not at all depending
on a nexus with piracy, and lacking a reference to piracy as defined in
international law. Furthermore, though perhaps not surprisingly, comparing
the applicable sentences (even if taking into account the distinguishableness
of the various cases), there is a significant difference between the two
countries in regard to the maximum sentence likely to be handed down if
the suspected pirates are to be convicted, ranging from up to fifteen years of
imprisonment in the German case, and up to thirty-five years (and a
minimum of twenty-five years) of imprisonment in the cited U.S. cases.
The still reigning confusion, however, even within the same domestic
jurisdiction, and sometimes within the very same district court, may be
59. Chad Bray, Somali Man Sentenced to More Than 33 Years in Hijacking of Ships, WALL
ST. J. ONLINE, Feb. 16, 2011, http://online.wsj.com/article/SB100014240527487033734045761
48393224867726.html (last visited Apr. 22, 2011).
60. See Johannes Ritter, Auftakt im Piratenprozess: Erpresserischer Menschenraub,
FRANKFURTER ALLGEMEINE ZEITUNG, Nov. 22, 2010, http://www.faz.net/s/RubFC06D389
EE76479E9E76425072B196C3/Doc~ECB061BB8C9FE4A5E945A1CE0578AFD2B~ATpl~Ecommon
~Scontent.html (last visited Mar. 14, 2011); Germany’s First Pirate Trial in 400 Years Opens, MAIL &
GUARDIAN ONLINE, Nov. 22, 2010, http://www.mg.co.za/article/2010-11-22-germanys-first-pirate-trialin-400-years-opens (last visited Mar. 14, 2011).
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gauged by the diverging outcomes of initially similar piracy cases (as in the
U.S. example), highlighting the continuing inadequacy of domestic piracy
prosecutions.
The establishment of jurisdiction is not yet settled regarding cases
where the nationality of the apprehending forces is different from the ship’s
flag state, and the still inadequate comparability and case law of piracyrelated offences; thus, sentencing practices represent shortcomings of, and
challenges to, national prosecutions for piracy. At least some states have
ventured into putting piracy on trial, despite the costs of trial and the
potential ensuing political asylum claim concerns. However, the majority
of states still appear to have an aversion towards such a level of
involvement.
States unwilling to prosecute suspected pirates, not least Western
states, often cite a lack of adequately implemented international treaties or
national laws pertaining to piracy prosecution,61 evidentiary problems (the
sort of evidence acquired and the mode it had been acquired may not live
up to the high Human Rights trial standard in the respective countries), and,
although less readily admitted, concerns for potential asylum claims by
suspected, and convicted pirates, as reasons for their refusal to prosecute.
While the first two aspects quite tellingly seem to constitute less of a
concern, once piracy suspects are transferred to a more regionally
connected third country (where available laws, and attention to Human
Rights standards, most often are not really superior to the ones available in
the transferor state), the asylum concern (for example, Norway’s Mullah
Krekar case)62 is at least a real, although perhaps not sufficiently, serious
61. In addressing those concerns, S.C. Res. 1918, U.N. Doc. S/RES/1918 (May 27, 2010),
proposed by Russia, calls on all states to make piracy an offense under their domestic law and asks the
UN Secretary-General to prepare a report on possible institutions to try pirates. Ironically, or in any
case as an illustration of the urgency of implementing domestic piracy legislation, a mere two weeks
later, the Russian navy released Somali pirates far at sea, citing precisely a lack of a clear legal basis for
prosecuting them. Barry, supra note 44. Following up on UN SC Res. 1918, the Legal Committee of
the International Maritime Organization, conducted a review of national legislation among Member
States, not surprisingly confirming previous assessments which concluded that “implementing
legislation on piracy is not currently harmonized among the 40 States” which replied to the IMO’s
request for submission of national legislation on piracy. See Int’l Maritime Org. [IMO], Legal
Committee, 97th Sess., agenda item 9, IMO Doc. LEG 97/9, Sept. 10, 2010, available at
http://www.amtcc.com/imosite/meetings/IMOMeeting2010/LEG97/LEG%2097-9.pdf (last visited Mar.
14, 2011). In furtherance of its mandate to assist States in the uniform and consistent application of
provisions of UNCLOS, the Division for Ocean Affairs and the Law of the Sea (Office of Legal Affairs)
now serves as the depository of a database containing a table of national piracy legislation based on the
IMO’s survey, and information about other States, see http://www.un.org/depts/los/piracy/
piracy_national_legislation.htm (last visited Mar. 14, 2011).
62. Mullah Krekar, a Kurdish Sunni Islamist leader who came to Norway as a refugee from
Northern Iraq in 1991, had his refugee status revoked in 2003 due to terrorist acts carried out in
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one. After all, while asylum claims in the wake of piracy prosecutions, and
other serious crimes, are and will be a fact to be taken into account, in that
way the number of such asylum claims being added to the total number of
claims would amount to only a tiny fraction of the overall case load and, as
such, would not seem to justify a country refraining from actively taking
part in piracy prosecutions.
What is needed in any case is a comprehensive approach to modern
piracy legislation, addressing evidentiary and implementation concerns and
creating a broad basis of national jurisdictions with, as close as possible,
similar approaches, procedures, and sentences for comparable acts of
piracy—until, perhaps, a future international institution for such a purpose
may be established. One of the challenges of the UNCLOS consists in the
fact that, even if fully and widely implemented, this Convention is rather
silent (as opposed to the Rome Statute of the ICC) as to exactly what
jurisdictional steps a state is to take, what sentences to impose, mutatis
mutandis. While states having ratified the ICC Statute also still had to
implement the treaty through domestic implementing legislation, the ICC
Statute at least listed very specific minimum requirements, the floor, where
states were free to raise the ceiling in their national laws,63 applying, for
example, even higher standards with respect to the definition as to what acts
constitute genocide, as may be illustrated by comparing German and U.S.
Kurdistan by Ansar al-Islam, an Islamist group whose original leader, at the time, was Mullah Krekar.
Since February 2003, Krekar has an expulsion order against him which has been suspended pending
Iraqi government guarantees that he will not face torture or execution. Norway is committed to
international treaties which prohibit the expulsion of an individual without such a guarantee. The death
penalty remains on the books in the Kurdistan region and while most death sentences have been
changed into life sentences since the Kurdistan authorities took power in 1992, the exception being
eleven alleged members of that very group (Ansar al-Islam), who were hanged in the regional capital of
Arbil in October 2006. As of December 8, 2006, Mullah Krekar had been on the UN terror list, and on
November 8, 2007 he had been judged by the Norwegian High Court as a “danger to national security.”
See Vilde Helljesen et al., Høyesterett: Mulla Krekar fare fro rikets sikkerhet, NRK, Nov. 8, 2011,
http://www.nrk.no/nyheter/1.3987075 (last visited Mar. 15, 2011), and Norges Høyesterett [Supreme
Court of Norway], Nov. 8, 2007, HR-2007-01869-A (case no. 2007/207) (Nor.). Despite repeated
threats to the lives of various leading politicians in his country of refuge, he remains in Norway
precisely because he might face the death penalty if deported to Iraq. See, e.g., Paal Wergeland, PST
vurderer å pågripe Mulla Krekar, NRK, June 11, 2010, http://www.nrk.no/nyheter/norge/1.7163982
63. In this same way, State legislatures within a federal republic, according to the “New
Federalism,” may raise the ceiling of (human) rights within their State constitutions (by containing a
greater number and broader definitions of rights) above the federal minimum floor. See Kermit L. Hall,
Of Floors and Ceilings: The New Federalism and State Bills of Rights, in THE BILL OF RIGHTS IN
MODERN AMERICA: AFTER 200 YEARS 202 (David J. Bodenhamer & James W. Ely, Jr. eds., Indiana
Univ. Press 1993).
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national legislation in that respect.64 UNCLOS, of course, is silent in regard
to sentences, and barely even imposes a duty on states to prosecute at all.
Thus, drafting more standardized, modern anti-piracy legislation, as a
minimum floor for national prosecutions, would be a worthwhile endeavor
in enhancing the prosecutorial regime to fight piracy, though it still would
leave the proclaimed problem of political asylum requests unaffected.
IV. A PIRATE AND A REFUGEE
While some of the concerns pertaining to potential asylum claims by
suspected pirates may be rejected, based on Article 1F of the 1951 Refugee
Convention, pertaining to the exclusion of refugee status, that clause itself
may not be sufficient to put states unwilling to prosecute pirates in their
own courts at ease. To be sure, the so-called Exclusion Clause stipulates,
inter alia, that the provisions of the Refugee Convention “shall not apply to
any person with respect to whom there are serious reasons for considering
that: (a) he has committed a crime against peace, a war crime, or a crime
against humanity,” or “(b) he has committed a serious non-political crime
outside the country of refuge prior to his admission to that country as a
refugee,” or “(c) he has been guilty of acts contrary to the purposes and
principles of the United Nations.”65 Due to the vagueness of its wording,
subsection (c) has barely been used, and, depending on the particular case,
subsection (a) may be stretching the description of piracy too far, as may
also be apparent from the wording and language employed in UN SC Res.
1816 and 1838 pertaining to the situation in Somalia, mentioned
64. The diverging definitions of genocide employed by Germany, a State Party to the Rome
Statute, and the United States, still a non-party to the International Criminal Court, are quite illustrative
with a view to the minimum floor versus the raised ceiling discussion. While the Genocide Convention
and the Rome Statute define genocide as the commission of certain criminal acts “with intent to destroy,
in whole or in part,” a national, ethnic, racial, or religious group, as such, 18 U.S.C. § 1091(a) requires a
“specific intent to destroy, in whole or in substantial part;” thus, limiting the applicability of the
provision quite distinctively. Section 6 of the German Code of Crimes Against International Law, on
the other hand, emphasizes that in certain cases the objective requirements of genocide may already be
fulfilled if the punishable conduct is directed at a single person. Thus, while the Rome Statue initially
refers to killing and causing serious bodily or mental harm to “members” of the group, and forcibly
transferring “children,” the German domestic penal law declares that whoever kills or harms in a certain
way “a member” of the group, or transfers “a child” of the group may already be punishable for committing
genocide. For a more detailed discussion, see Tom Syring, The Crime of Crimes Before the Courts:
National and International Jurisdictional Approaches with Respect to Punishing Genocide (forthcoming
2011) (on file with author).
65. Convention Relating to the Status of Refugees, July 28, 1951, GA Res. 2198 (XX1), 189
U.N.T.S. 150 [hereinafter Refugee Convention]; Protocol Relating to the Status of Refugees, Jan. 31,
1967, 606 U.N.T.S. 267, 19 U.S.T. 6223.
456
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previously.66 However, in a recent statement regrding Article 1F, the
UNHCR underlined that a “serious non-political crime” in the sense of
Article 1F(b) could consist of arson and rape, but also murder and
robbery.67
Thus, as many cases involving piracy may include some acts of
robbery or other “serious crimes” within the meaning of the Exclusion
Clause in Article 1F, some refugee claims put forward by apprehended
pirates may be denied based on that stipulation. On the other hand, as the
majority of arrests by necessity pertain to unsuccessful pirates, and hence
involve inchoate acts, rejection of potential asylum claims may nevertheless
not be as readily available based on the Exclusion Clause contained in
Article 1F. Furthermore, even where appropriate, a suspected pirate,
irrespective of the outcome of a potential trial, may not be returnable to
Somalia due to the principle of non-refoulement68 and the well-known,
dangerous security situation in that country.
Therefore, either way, the unwillingness of states to share the judicial
burden of prosecuting pirate suspects based on concerns of potential asylum
claims being made by apprehended persons may be understandable, though
not equally justifiable. In any case, the problem now, it seems, consists not
66.
S.C. Res. 1836, U.N. Doc. S/Res/1836 (Sept. 29, 2008).
67. UN High Commissioner for Refugees, UNHCR Statement on Article 1F of the 1951
Convention, at 20, July 2009, available at http://www.unhcr.org/refworld/docid/4a5de2992.html (last
visited Mar. 16, 2011). While the statement was originally issued in the context of a preliminary ruling
referenced to the Court of Justice of the European Communities from the German Federal
Administrative Court regarding the interpretation of a qualification directive pertaining to the granting
of refugee status to persons included in terrorist lists, its interpretive value is valid in the present context
as well. Furthermore, the ECJ, in its decision on November 9, 2010, held that “support of an
organization included on the EU list of organizations involved in terrorist acts may, but does not
automatically, constitute a serious non-political crime or an act contrary to the purposes and principles
of the United Nations. . . .” According to the Court, a finding that there are serious reasons for such an
assessment is conditional, should be determined on a case-by-case basis, and will depend on the
particular circumstances of the case and an individual’s responsibility for carrying out the acts in
question. See Tom Syring, Introductory Note to the Court of Justice of the European Union:
Preconditions for Exclusion from Refugee Status (Fed. Republic of Ger. v. B & D), 50 I.L.M. 114
(2011). Hence, even if an incident of piracy, in general, were to be subsumed under Article 1F,
sufficiently establishing the respective pirate’s particular contribution to the prohibited act may still pose
a significant challenge.
68. Refugee Convention, supra note 65, art. 33(1); Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, art. 3(1), Dec. 10, 1984, 1465 U.N.T.S. 85, S.
Treaty Doc. No. 100-20 (1988). “No State Party shall expel, return (“refouler”) or extradite a person to
another State where there are substantial grounds for believing that he would be in danger of being
subjected to torture.” Id. See also supra note 62, discussing the Norwegian case Mullah Krekar of
which, although not pertaining to piracy, quite vividly highlights the limits of the Exclusion Clause
in Article 1F.
2011]
Syring
457
only in how to distinguish a pirate from a refugee, or even in how to prove
a suspect’s pirate activity, but in how to deal with the insight that one
person may actually be both: a pirate and a refugee.
TORTURED LAW/TORTURED “JUSTICE”—JOINT
CRIMINAL ENTERPRISE IN THE CASE OF ALOYS
SIMBA
Beth S. Lyons, Esq.∗
I.
II.
III.
INTRODUCTION ................................................................................ 459
THE SIMBA CASE ............................................................................. 461
THE “LOOSE” APPLICATION OF JCE PLEADING RULES,
ESPECIALLY AS TO THE IDENTITY OF JCE MEMBERS—FAIR TRIAL
ERRORS IN THE TRIAL CHAMBER AND APPEAL JUDGMENTS .......... 463
IV. PROCEDURAL HISTORY ................................................................... 464
V.
“NEVER TOO LATE”—THE PROSECUTION’S CHANGE IN THE
MATERIAL ELEMENT OF IDENTITY IN THE ALLEGED JCE SEVEN
MONTHS AFTER IT HAD CLOSED ITS CASE ..................................... 467
VI. THE “ON THE SPOT” INTENT ........................................................... 469
VII. CONCLUSION ................................................................................... 471
I. INTRODUCTION
Joint criminal enterprise (JCE)—a judicially interpreted doctrine1—
has become a “hallmark” mode of liability at the international Tribunals.
This concept has been referred to as the “magic bullet of the OTP”2 and the
“nuclear bomb of the international prosecutor’s arsenal.”3 It is obvious as
to why: with these three words, the Prosecution has charged collective and
institutional guilt, in one fell swoop. At the International Criminal Tribunal
for Rwanda (ICTR), the Prosecution encapsulates its theory of a conspiracy
∗
Beth S. Lyons was Trial Co-Counsel for Aloys Simba in 2004–2005, on the Defence team
headed by Lead Counsel Me. Sadikou Ayo Alao. She is grateful to Me. Alao for discussions on the
points in this paper. She is a member of the Bureau for the International Association of Democratic
Lawyers (IADL) and an Alternate Representative for IADL to the U.N. in New York. Simba Decisions
and Judgments may be found at the ICTR website, www.ictr.org. The author thanks Nathaniel G. Dutt
for his assistance.
1.
JCE has been held to be part of “committing” under Articles 6(1) and 7 of the Statute of
the International Tribunal for Rwanda; see generally Prosecutor v. Milutinovic et al., Case No. IT-9937-AR72, Decision on Ojdanic Challenge to JCE Jurisdiction (Int’l Crim. Trib. for the Former
Yugoslavia May 21, 2003), Separate Opinion by Judge David Hunt.
2.
William A. Schabas, Mens Rea and the International Criminal Tribunal for the Former
Yugoslavia, 37 NEW ENG. L. REV. 1015, 1032 (2003).
3.
Allison Marston Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal
Enterprise, Command Responsibility and the Development of International Criminal Law, 93 CAL. L.
REV. 75, 137 (2005).
460
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of government (both at the national and local level)—military Hutu
intelligentsia, whom it alleges planned and committed the crimes of 1994—
all within the allegation of JCE.
Perhaps more than any other judicial doctrine, these three words “joint
criminal enterprise” have routinely violated the fair trial rights of
defendants at the Tribunals and diluted the requirements for the special
intent needed for genocide. Many legal scholars have identified and
criticized the legal problems of this “guilt by association” template,
especially in respect to the third category of JCE and the mens rea,4 the
conflation and confusion between conspiracy and JCE by the Prosecution,5
and the distinction, if any, between JCE and acting in concert,6 to name
just a few issues. These problems inherent in the JCE doctrine are
exacerbated by the additional failures of the Prosecution and Tribunals to
follow the jurisprudence, which mandates strict construction in the pleading
and proof of JCE.7
4.
There is a plethora of literature on this point, especially in the last five years. See, e.g.,
Goran Sluiter, Symposium: Guilty by Association: Joint Criminal Enterprise on Trial, 5 J. INT’L CRIM.
JUST. 67, 67–68 (2007); see also Danner & Martinez, supra note 3, at 124; Schabas, supra note 2, at
1017; David L. Nersessian, Whoops, I Committed Genocide! The Anomaly of Constructive Liability for
Serious International Crimes, 30 FLETCHER F. WORLD AFF. 81, 82 (2006); Mark Osiel, The Banality of
Good: Aligning Incentives Against Mass Atrocity, 105 COLUM. L. REV. 1751, 1802 (2005) (discussing
elasticity and vagueness problems, and quoting from an interview with an ICTY Prosecutor that “it is
really rather haphazard who gets tossed into the pot” of a given enterprise).
5.
Despite the Prosecution’s erroneous and continuous practice of treating conspiracy and
JCE as legally fungible, appellate jurisprudence draws a distinction between a substantive crime and a
mode of liability. See Prosecutor v. Kvocka et al., Case No. IT-98-30/1-A, Appeal Judgment, ¶ 91 (Int’l
Crim. Trib. for the Former Yugoslavia Feb. 28, 2005) (“Joint criminal enterprise is simply a means of
committing a crime; it is not a crime in itself.”).
6.
See Separate and Partly Dissenting Opinion of Judge Per-Johan Lindholm in Prosecutor v.
Simic et al., Case No. IT-95-9-T, Trial Chamber Judgment, ¶ 2 (Int’l Crim. Trib. for the Former
Yugoslavia Oct. 17, 2003).
I dissociate myself from the concept or doctrine of joint criminal enterprise in this
case as well as generally. The so-called basic form of joint criminal enterprise
does not, in my opinion, have any substance on its own. It is nothing more than a
new label affixed to a since long well-known concept or doctrine in most
jurisdictions as well as international criminal law, namely co-perpetration.
Id.
7.
See Prosecutor v. Brdanin, Case No. IT-99-36, Appeal Decision, ¶ 428 (Int’l Crim. Trib.
for the Former Yugoslavia Apr. 3, 2007) (The Appeals Chamber emphasized that “JCE is not an openended concept that permits convictions based on guilt by association. On the contrary, a conviction
based on the doctrine of JCE can occur only where the Chamber finds all necessary elements satisfied
beyond a reasonable doubt.”); Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2-T, Trial Judgment,
¶ 219 (Int’l Crim. Trib. for the Former Yugoslavia Feb. 26, 2001) (The Trial Chamber warned that
“[s]tretching notions of individual mens rea too thin may lead to the imposition of criminal liability on
2011]
Lyons
461
It is evident to anyone who has had to defend a client against the
charge of JCE that the notion is legally convoluted, and its use or
application is illogical and violates the rights of defendants. Its ubiquitous
presence in the ICTR and International Criminal Tribunal for the former
Yugoslavia (ICTY) cases illustrates the urgency of the Tribunals to assign
collective guilt—even if that is based on unpleaded and unproven
allegations involving a named defendant and an unnamed, amorphous
infinite universe of JCE members. Moreover, these are allegations against
which a defendant can neither legally nor logically completely defend
himself.8 Thus, in the quest for collective guilt, blame, and punishment, the
legally defective doctrine of JCE has been permitted, wrongly in my view,
to assume “center stage” in the indictments and convictions at the
Tribunals. Although there are clearly multiple contenders for the “lowest
point” of Tribunal jurisprudence, JCE continues to claim its place at the top
of the charts.
II. THE SIMBA CASE
The Simba case was one of the first single defendant cases at the ICTR
in which the Prosecution alleged JCE.9 Aloys Simba was charged with
genocide, or alternatively, complicity in genocide, murder, and
extermination as crimes against humanity.10 The basic defence in Simba
was alibi, which was accepted by the Trial Chamber for part of the period
of time in question, but rejected for the period during which his
individuals for what is actually guilt by association, a result that is at odds with the driving principles
behind the creation of this international Tribunal.”).
8.
As Ohlin points out, “there is no warrant for extending liability to a JCE simply because
the very nature of these crimes is collective. The question is not whether it is collective or not but what
kind of collective action is criminal under the ICTY Statute.” Jens David Ohlin, Three Conceptual
Problems with the Doctrine of Joint Criminal Enterprise, 5 J. INT’L CRIM. JUST. 70, 74 (2007).
9.
I think there was one single defendant case, prior to Simba, where “common scheme” was
charged. However, appellate jurisprudence requires strict adherence to the requirements of JCE notice,
regardless of the exact words charged. Prosecutor v. Giacumbitsi, Case No. ICTR-01-64-A, Appeal
Judgment, ¶¶ 158–179, 289 (July 7, 2006) (The Appeals Chamber dismissed the Prosecution’s appeal of
error in the Trial Chamber judgment that it could not make a finding on JCE because it was not pleaded
clearly enough to permit the Accused to defend himself, holding that although the absence of the words
“joint criminal enterprise” is not in itself defective, the question is whether the Accused has been
meaningfully informed of the nature of the charge.).
10. See Prosecutor v. Simba, Case No. ICTR-01-76-1, Amended Indictment Pursuant to 6
May 2004 Decision, III (May 10, 2004) [hereinafter Simba Amended Indictment]. The Prosecution
withdrew the counts of complicity and murder as a crime against humanity in its Closing Brief.
Prosecutor v. Simba, Case No. ICTR-01-76-T, Trial Judgment, ¶ 13 (Dec. 13, 2005) [hereinafter Simba
Trial Judgment].
462
[Vol. 17:2
participation was alleged in massacres and killings.11 On December 13,
2005, the Trial Chamber convicted Aloys Simba, a retired Lieutenant
Colonel in the Rwandan Army and a former member of the Rwandan
Parliament for the National Republican Movement for Democracy and
Development (MRND), which party he left in September 1993, of genocide
and extermination as a crime against humanity for participation in a JCE to
kill Tutsi civilians at two sites: Murambi Technical School and Kaduha
Parish, both in the Gikongoro prefecture.12 Simba was sentenced to twentyfive years.13 On appeal, the judgment was affirmed.14 In 2009, he was
transferred from Arusha to Benin, where he is now serving his sentence.15
Unfortunately, the Tribunal made bad law in respect to JCE (as well as
other issues) in the Simba case. This brief paper addresses only two of the
erroneous holdings in the Trial Chamber’s judgment: (a) the Trial
Chamber’s conclusion that the manner in which the Prosecution gave notice
of its theory of JCE did “not in any way render the trial unfair,”16 and (b)
the Trial Chamber’s conclusion that Simba possessed “momentary”
genocidal intent, at the site, which he shared with the countless unnamed
others at the site.17 Both of these points—the pleading of JCE, particularly
in respect to the material element of identity of membership; and the “on
the spot” mens rea finding—illustrate the dangers and illegalities of the JCE
doctrine. The points on proof in reference to JCE are not addressed here.18
11.
Simba Trial Judgment, supra note 10, ¶ 384.
12. As the Trial Chamber stated in its Summary of the Judgment, this trial was the first case in
the Tribunal concerning the events in the Gikongoro prefecture (Simba’s prefecture). Hence, Simba was
the first person from this area to be convicted. It was the Defence’s view that this was significant, and
the lack of prior convictions from this area was an added impetus to find Simba guilty.
13.
See generally Simba Trial Judgment, supra note 10.
14. See generally Simba v. Prosecutor, Case No. ICTR-01-76-A, Appeal Chamber Judgment
(Nov. 27, 2007) [hereinafter Simba Appeal Judgment].
15. International Criminal Tribunal for Rwanda, ICTR Detainees—Status on 17 January 2011,
available at http://www.unictr.org/Cases/StatusofDetainees/tabid/202/Default.aspx (last visited Mar. 24,
2011).
16.
17.
Id. ¶ 418.
18. The Defence argued that the Prosecution did not prove beyond a reasonable doubt that a
joint criminal enterprise existed, and did not prove that a criminal nexus existed between Aloys Simba
and the persons named in paragraph 14. Moreover, the Prosecution could not prove that a criminal
nexus existed between Simba “and others” (who were unnamed) alleged to be in the joint criminal
enterprise. Lastly, the Defence raised reasonable doubt that Aloys Simba had any criminal connection
or relationship to the named persons in paragraph 14 for the purpose of carrying out the objective of a
joint criminal enterprise.
2011]
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463
III. THE “LOOSE” APPLICATION OF JCE PLEADING RULES, ESPECIALLY AS
TO THE IDENTITY OF JCE MEMBERS—FAIR TRIAL ERRORS IN THE TRIAL
CHAMBER AND APPEAL JUDGMENTS
Specificity in pleading is a general principle of notice. The rules of
JCE pleading are simple and direct. JCE must be pleaded in an
“unambiguous manner” and the form of JCE on which the Prosecution is
relying must be specified.19 In pleading the form of JCE, the Prosecution
must also plead the mens rea, which is specific to each of the three forms.20
In addition, the Prosecution must plead the following material elements of
JCE: its purpose, the identity of the co-participants, and the nature of the
accused’s participation in the enterprise.21 The Prosecution is expected to
know its case, and not mold its theory as the evidence evolves.22
Despite the abundance of appellate jurisprudence on the requirement
of notice, and the due process requirements found in international law and
conventions, it often appears that the Prosecution and the Trial Chamber
take the position that JCE is somehow exempt from, or not an urgent matter
of, notice.23 These legal requirements are regularly violated by the
Prosecution, as illustrated by the multiple pleadings on defects in the
indictment, found in Simba and other cases.
19. Prosecutor v. Ntagerura, Case No. ICTR-99-46-T, Trial Chamber Judgment, ¶ 34 (Feb. 25,
2004) (affirmed on appeal, July 7, 2006). See Prosecutor v. Brdnanin & Talic, Case No. IT-99-36,
Decision on Form of Further Amended Indictment and Prosecution Application to Amend, ¶ 81(4a),
(4b) (Int’l Crim. Trib. for the Former Yugoslavia June 26, 2001) (The Trial Chamber ordered that the
Prosecution plead (a) whether the crimes alleged fell within or outside the object of the joint criminal
enterprise; and (b) that the Accused had the mens rea required for those crimes within the object of the
enterprise.). See also Prosecutor v. Krnojelac, Case No. IT-97-25, Decision on Form of the Second
Amended Indictment, ¶ 16 (Int’l Crim. Trib. for the Former Yugoslavia May 11, 2000).
20. Prosecutor v. Tadic, Case No. IT-94-1-A, Appeal Judgment, ¶¶ 220–28 (Int’l Crim. Trib.
for the Former Yugoslavia July 15, 1999).
21. See Prosecutor v. Kvocka et al., Case No. IT-98-30/1-A, Appeal Judgment, ¶¶ 28, 42 (Int’l
Crim. Trib. for the Former Yugoslavia Feb. 28, 2005).
22. See, e.g., Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-A, Appeal Judgment, ¶ 19
(Aug. 29, 2008); see also Prosecutor v. Ntagerura, Case No. ICTR-99-46, Appeal Judgment, ¶ 27 (July
7, 2006) and Trial Judgment, ¶ 24 (Feb. 25, 2004); Prosecutor v. Kupreskic, Case No. IT-95-16-A,
Appeal Judgment, ¶ 92 (Int’l Crim. Trib. for the Former Yugoslavia Oct. 23, 2001). Note that there is
abundant jurisprudence, at both Tribunals, on this point.
23. Unfortunately, other Trial Chambers have not promptly decided Defence objections on the
pleading of JCE. For example, in the “Military II” case, the Trial Chamber, in a 2006 decision on a
Defence motion, deferred ruling on the JCE objections. Prosecutor v. Ndindiliyimana, Case No. ICTR00-56-T, Decision on Nzuwonemeye’s Motion to Exclude Parts of Witness AOG’s Testimony, ¶ 27
(Mar. 30, 2006). At the time of closing arguments in June 2009, the Trial Chamber still had not made a
ruling on JCE.
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[Vol. 17:2
But what is significant in Simba is that even where the Trial Chamber
initially ruled that the Prosecution’s pleadings were lacking in respect to
JCE, the Trial Chamber did not take a position that a remedy was mandated
as a matter of fair trial. Instead, its position was to justify the Prosecution’s
defective pleading, particularly in respect to the material element of identity
of members in the JCE and the forms of JCE, and each’s respective mens
rea, and to provide “legal” rationales to cover the violations.
IV. PROCEDURAL HISTORY
It should be noted that the JCE defects in the indictment were in the
context of a generally defective indictment, which was vague, lacked
specificity to support elements of the crimes and forms of liability charged,
lacked time frames, etc. The Defence’s position was that the JCE allegation
was a legal fiction: the allegation was neither pleaded in conformity with
the legal requirements24 nor, as we argued at closing arguments, proved
beyond a reasonable doubt.
The three words, “joint criminal enterprise,” first appeared in the first
amended indictment, filed in January 2004. In response to Defence
objections to the inadequate pleading of JCE, the Trial Chamber
acknowledged that the state of mind of the Accused or his alleged partners
in the JCE was not specifically pleaded, and “consider[ed] that the amended
indictment should be amended to plead the mens rea element of joint
criminal enterprise.”25 However, the Trial Chamber’s Order to the
Prosecution to provide details was tempered with “if it is in a position to do
so.” This essentially left the Prosecution an option to decide what it could
or would do, if anything. The Prosecution, however, was never “in a
position” to comply with the legal pleading requirements for JCE.
In the second amended indictment, filed May 10 to conform with the
May 6 decision, the Prosecution simply tacked on the phrase “in concert
with others as part of a joint criminal enterprise” to the statutory definition
of Article 6(1).26 The Prosecution did not plead mens rea for each form,
nor specify any form of JCE, but simply added paragraph 58 which stated
that Simba “intended to commit the acts above, this intent being shared by
all other individuals involved in the crimes perpetrated.”
24. See Prosecutor v. Tadic, Case No. IT-94-1-A, Appeal Judgment, ¶¶ 220–28 (Int’l Crim.
Trib. for the Former Yugoslavia July 15, 1999), and its progeny.
25. Prosecutor v. Simba, Case No. ICTR-01-76-I, Decision on Preliminary Defence Motion
Regarding Defects in the Form of the Indictment, ¶¶ 11–12 (May 6, 2004).
26. See Simba Amended Indictment, supra note 10. Numerous cases have rejected this
practice and have held that tracking of elements in an indictment does not provide notice. See also
Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-A, Appeal Judgment, ¶ 44 (Aug. 29, 2008).
2011]
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465
The Prosecution amendment (paragraph 58) was essentially a “onesize fits all” mens rea for the three forms of JCE, and a good example of
what the Kronjelac Appeals Chamber refers to as “persistent ambiguity” in
the pleading of JCE.27 The Defence filed another motion on defects in this
second amended indictment, which was denied by the Trial Chamber. It
held that the indictment, as a whole, provided adequate notice. The Trial
Chamber, however, acknowledged that the indictment referred to JCE
without specifying the particular form, but understood this to mean that the
Prosecution was relying on all three forms. The Trial Chamber cautioned
that each paragraph should not be read in isolation and should be
considered in the context of the other paragraphs of the indictment. Thus,
with ICTR “jurisprudence parlance,” the Trial Chamber proceeded to
“remedy-away” the defect in pleading.28 In its closing brief, the
Prosecution—for the first time—gave notice that it was basically pursuing
only JCE I.29
In its Judgment, the Trial Chamber stated that the Prosecution
provided additional detail on JCE in its Pre-Trial Brief.30 This was its first
reference in any decision to the Prosecution Pre-Trial Brief (PTB), filed
May 10, 2004, as a form of notice. But, again, the Trial Judgment was less
than equivocal in its findings. The Trial Chamber also stated that it “does
not exclude that the Prosecution could have pleaded the requisite elements
of joint criminal enterprise in a more clear and organized manner in the
Indictment.”31
However, the PTB sections on the joint criminal enterprise generally
suffered from the same problems of vagueness and lack of specificity as the
27. Prosecutor v. Krnojelac, Case No. IT-97-25-A, Appeal Judgment, ¶ 144 (Int’l Crim. Trib.
for the Former Yugoslavia Sept. 17, 2003).
28. Prosecutor v. Simba, Case No. ICTR-01-76-T, Decision on the Defence’s Preliminary
Motion Challenging the Second Amended Indictment, ¶ 6 (July 14, 2004), which reads:
The Chamber notes that the indictment only refers to joint criminal enterprise
without specifying the particular form. In the Chamber’s view, the indictment’s
failure to point to a particular form of joint criminal enterprise reflects the
Prosecution’s intention to rely on all three forms. Consequently, the indictment
must plead the distinct mens rea for each form of joint criminal enterprise. In
assessing an indictment, the Chamber is mindful that each paragraph should not
be read in isolation but rather should be considered in the context of the other
paragraphs in the indictment. (footnotes omitted).
29.
30.
Id. ¶ 391.
31.
Id.
466
[Vol. 17:2
facially defective amended indictments.32 There was no notice in respect to
the different mens rea for each form of JCE and the alleged JCE
membership included broad, general categories and simply repeated
paragraph 14 of the Amended Indictment. There was no nexus alleged
between specific allegations of the Indictment and Simba’s alleged
participation in a joint criminal enterprise. Thus, the Defence argued that
reliance on the PTB to remedy material defects in an indictment was in
error and, in the alternative, even if the PTB were accepted, it did not cure
any defective notice.33
In its judgment, the Trial Chamber took the position, following its
earlier decision, that in the absence of any form being pleaded, all three
forms were being alleged. As to the problem that the mens rea specified in
paragraph 58 of the Indictment applied to only one form, the Judgment
“resolved” this defect by holding that the Prosecution had, at the close of its
case, stated it was principally pursuing form one only and the Trial
Chamber, no doubt, was satisfied that form one mens rea was pleaded.34
This “logical” perspective on the [non]pleading of form is a
disingenuous representation. In fact, what had occurred was that the
Prosecution had molded its case, based on the evidence at trial—a practice
legally opposed by a long line of trial and appellate jurisprudence holding
that the Prosecution is expected to “know its case” before proceeding to
trial.35 The Trial Chamber never held the Prosecution accountable for its
failure to plead (or prove) what it had claimed as its theory of JCE
liability—all three forms of JCE liability. The Trial Chamber basically
“covered up” the Prosecution’s failure to give notice on the form and mens
rea in any way which was meaningful to the Defendant.
Based on this, the elementary fair trial principle of notice, i.e., that the
defendant has a right to be informed in detail of the charges against him
32. See generally Prosecutor v. Simba, Case No. ICTR-01-76-T, Prosecutor’s Pre-Trial Brief
(May 10, 2004) (on file with author).
33. Use of the PTB to cure defects in the indictment has been held to be a “less preferred
practice.” See Prosecutor v. Kronjelac, Case No. IT-97-25-A, Appeal Judgment, ¶ 138 (Int’l Crim. Trib.
for the Former Yugoslavia Sept. 17, 2003) (“This option, however, is limited by the need to guarantee
the accused a fair trial.”).
34. Simba Trial Judgment, supra note 10, ¶ 386. But see Prosecutor v. Bikindi, Case No.
ICTR-01-72-T, Trial Judgment, ¶ 400 (Dec. 2, 2008), where the Trial Chamber held that “by pleading
all three categories of joint criminal enterprise, the Prosecution failed to properly inform Bikindi as to
which form of joint criminal enterprise was being alleged.” In Bikindi, as in Simba, the Prosecution
stated that it intended to rely on all three categories of JCE.
35.
29, 2008).
See Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-A, Appeal Judgment, ¶ 18 (Aug.
2011]
Lyons
467
before (and not after) he presents his case, was violated by the Prosecution
and—at times—with the complicity of the Trial Chamber.
V. “NEVER TOO LATE”—THE PROSECUTION’S CHANGE IN THE MATERIAL
ELEMENT OF IDENTITY IN THE ALLEGED JCE SEVEN MONTHS AFTER IT
HAD CLOSED ITS CASE
The issue of the timing of “notice” was particularly egregious in
respect to the identity of the participants of the alleged JCE. Paragraph 14
of the Indictment stated that “[i]n preparing and planning the massacres,
which occurred in the Gikongoro and Butare prefectures in April and May
1994, Aloys Simba acted in concert with” eight named persons and others
not known to the Prosecution.36 The Defence prepared its case37 based on
the allegations that the eight named individuals in paragraph 14, according
to the Prosecution, comprised the members of the alleged joint criminal
enterprise. The Defence questioned witnesses about Simba’s relationship,
if any, to these named persons. The Trial Chamber, as well, questioned
witnesses similarly on the names in paragraph 14. Thus, the Defence—as
well as the Prosecution and the Trial Chamber—relied on paragraph 14 of
the Simba Indictment as the factual support for the material element of
identity of the named persons in the alleged joint criminal enterprise.
In its Closing Brief, filed on June 22, 2005, the Prosecution changed
the identity of the alleged joint criminal enterprise members, by close to
fifty percent. The Prosecution identified a new total of fifteen individuals,
almost twice as many as in paragraph 14. Seven new persons who did not
appear on the paragraph 14 list had been added, and one of the original
names had been removed.38
The Defence, obviously taken by surprise, had been—more
accurately—ambushed.39 But the Judgment is silent on this fair trial
violation. No where can one find a reference in the Judgment to the
Prosecution’s nearly fifty percent change of the alleged JCE membership in
its Closing Brief.
36. Paragraph 14 included eight named individuals, and others: Faustin Sebuhura, Laurent
Bucyibaruta, Damien Biniga, Denys Kamodoka, Juvenal Ndabarinze, Lieutenant Colonel Augustin
Rwamanya, Joachim Hategekimana, Charles Munyaneza, and others not known to the Prosecution.
Simba Amended Indictment, supra note 10, ¶ 14.
37. Throughout, the Defence maintained that JCE was not pleaded, and did not waive its
objections to the defective pleading of joint criminal enterprise. See generally id.
38.
Simba Appeal Judgment, supra note 14, ¶ 69.
39. The Defence was informed of this change in the JCE composition after it had rested, when
it was impossible to defend against the allegations of the new named members, and preserved objections
to this fair trial violation in its subsequent closing arguments.
468
[Vol. 17:2
In fact, the Trial Chamber found that the Indictment “adequately
identifies the participants alleged to have materially committed the crimes
forming part of the common criminal purpose.”40 The Trial Chamber held
that “some are named in various paragraphs throughout the Indictment in
connection with planning of the attack.”41
On appeal, the Defence argued that the identity of participants in the
joint criminal enterprise is a material element and should be pleaded in the
Indictment. The change in close to fifty percent of the composition of the
joint criminal enterprise after the close of evidence can hardly be deemed a
“minor discrepancy.”42 Further, such a material change causes prejudice to
the Defence and misleads the Defence.43 The Defence also argued that the
Prosecution opted to “surprise” the Defence with its changes in the Closing
Brief, after the trial, rather than choose the option of Rule 50,44 which
provides procedures for amendment of an indictment. The Prosecution did
not make any motion, pursuant to Rule 50, to amend the Indictment in
respect to the names.
In addition, the Defence pointed out that the Trial Chamber’s finding
that “some [of the JCE members] are named in various paragraphs
throughout the Indictment,”45 was inconsistent with its own holdings in the
Judgment.46
As to the vagueness of the category of participants, the Trial Chamber
held that “named individuals, as well as the attackers, should be considered
as participants in the joint criminal enterprise.”47 The Trial Chamber
continued that it is “not satisfied that the Prosecution could have provided
more specific identification,” and held that identification by category, such
as Gendarmes and Interahamwe, is sufficient.48
40.
41.
Id.
42. Cf. Prosecutor v. Kunarac, Case No. IT-96-23/1-A, Appeal Judgment, ¶ 217 (Int’l Crim.
Trib. for the Former Yugoslavia June 12, 2002) (“Minor discrepancies” between the dates in the trial
judgment and those in the indictment in respect to rapes were not found to be unreasonable.).
43.
See Prosecutor v. Rutaganda, Case No. ICTR-96-3-A, Appeal Judgment, ¶ 303 (May 26,
2003).
44. International Criminal Tribunal for Rwanda, Rules of Procedure & Evidence, Rule 50,
U.N. Doc. ITR/3/REV.1 (June 29, 1995).
45.
Simba Trial Judgment, supra note 10, ¶ 392 n.402.
46. Nsengiyumva and Karamage are named in paragraph 15, but this paragraph was found to
be defective, and the evidence of Simba’s second visit to Gasarenda Centre (to Karamage’s bar) is not a
basis of conviction. Ngogo, Gakuru, Nkusi, and Bakundukize are named in paragraph 57, but the Trial
Chamber found no evidence to support the allegations. Simba Trial Judgment, supra note 10, ¶¶ 23, 86.
47.
Id. ¶ 393.
48.
Id.
2011]
Lyons
469
In sum, the Trial Chamber’s position was so broad as to eviscerate the
meaning of notice for material elements of joint criminal enterprise as held
by the Appeals Chamber in Kronjelac and other cases, and to nullify the
legal elements such as findings of shared mens rea, required by Tadic.49
The Appeals Chamber dismissed all the Appellant’s arguments on JCE
and notice. It affirmed that: (a) the Indictment provided adequate notice of
the JCE50 and adequate notice of the identity of the participants in the
JCE,51 and (b) the pleading of the category of JCE was not inadequate.52
The Appeals Chamber found that the Defence arguments about lack of
notice in the Closing Brief were “misconceived.” It stated that the
“Prosecution final trial briefs are only filed at the end of a trial, after the
presentation of all the evidence, and therefore are not relevant for the
preparation of an accused’s case.”53
Where the Prosecution gives legally compliant and timely notice to the
Defence, one cannot disagree with this statement on final trial briefs.
However, the Appeals Chamber totally disregarded the history of the
Prosecution’s violations of notice in this case, especially on JCE and the
Defence’s pleadings that it was taken by surprise with the Prosecution’s
“post-trial notice.” At such a point, the Defence could do nothing, for
example, to defend against the new JCE allegations which were raised by
the Prosecution on the “eve” of closing arguments.
VI. THE “ON THE SPOT” INTENT
The legal and factual impossibility of defending against the unknown
is a truism. How can an accused defend against allegations of “shared
genocidal intent,” as well as an intent to be part of a JCE, with an infinite
universe of alleged nameless JCE members? The JCE doctrine, inherently
defective, and especially in the hands of a less than legally rigorous and
49. Prosecutor v. Tadic, Case No IT-94-1-A, Appeal Judgment, ¶ 220 (Int’l Crim. Trib. for the
Former Yugoslavia July 15, 1999).
50.
51. Id. ¶ 75 (adopting the reasoning of the Trial Chamber judgment, paragraphs 392 and 393,
which refer to paragraph 14 as the listing for the JCE members, and holds that others are named
throughout the indictment and that the Prosecution could not have provided more details about the
general categories of participants, Interahamwe or Gendarmes).
52. Id. ¶¶ 76–80. The Appeals Chamber, like the Trial Chamber, made the same observation
of the Prosecution’s failure to specifically name the category of JCE on which it intended to rely in the
indictment. However, it agreed that paragraph 58 gave sufficient notice of the mens rea requirement for
JCE I, when read together with the rest of the indictment.
53.
Id. ¶ 73.
470
[Vol. 17:2
scrupulous prosecution, raises this absurd and illogical scenario to a legal
travesty.
The Trial Chamber, in respect to the two massacre sites (Kaduha and
Murambi) found that “the only reasonable conclusion, even accepting his
[Aloys Simba] submissions as true, is that at that moment, he acted with
genocidal intent.”54 The legal issue on appeal was whether the finding that
“on the spot” or “momentary” genocidal intent is supported in law. The
Defence argued that for the crime of genocide to occur, the mens rea must
be formed prior to the commission of the genocidal acts.55 The Defence
also argued that the mens rea requirement for the JCE and the mens rea as
an element of the crime are two distinct legal concepts. Hence, JCE
requires two separate intents—the intent to be part of the JCE, and the
intent of the object of the JCE, in this case, the special intent for genocide.56
But both the trial and appellate judgments collapse these two intents into
one intent—which could, at the moment, be formed.
The Appeals Chamber found no merit in this position, stating that the
“inquiry is not whether the specific intent was formed prior to the
commission of the acts, but whether at the moment of commission the
perpetrators possessed the necessary intent. The Trial Chamber correctly
considered whether Appellant and the physical perpetrators possessed
genocidal intent at the time of the massacres.”57
These holdings could be read to contradict the Prosecution thesis that
there was a conspiracy to plan genocide, a point which has been rejected by
the appellate jurisprudence in the “Media” case58 and others, and recently in
the “Military I” and “Military II” cases acquitting the defendants of
conspiracy to commit genocide.59 If the intent is formed spontaneously or
“at the moment” as Simba holds, then planning genocide or conspiring to
commit genocide, both of which suggest a prior formation of intent, are
54.
55. Prosecutor v. Kayishema & Ruzindana, Case No. ICTR-95-1-T, Trial Chamber Judgment,
¶ 91 (May 21, 1999) (holding undisturbed on appeal). Admittedly, the jurisprudence on this point is
minimal.
56. See Prosecutor v. Brdanin, Case No. IT-99-36-A, Appeal Judgment, ¶ 365 (Int’l Crim.
Trib. for the Former Yugoslavia Apr. 3, 2007) (Where convictions under the first category of JCE are
concerned, the accused must both intend the commission of the crime and intend to participate in a
common plan aimed at its commission.).
57.
58. See generally Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Appeal Judgment
(Nov. 28, 2007).
59. See generally Prosecutor v. Bagosora et al. (“Military I”), Case No. ICTR-98-41-T, Trial
Judgment (Dec. 18, 2008). See also Prosecutor v. Ndindiliyimana (“Military II”), Case No. ICTR-0056-T, Summary of Trial Judgment (May 17, 2011).
2011]
Lyons
471
repugnant legal notions. This may be an unintended consequence of the
bad law. Not exactly a “silver lining” though, when one considers the legal
injustices committed in the name of “JCE.”
VII. CONCLUSION
When litigation of JCE in the Simba case commenced, the number of
articles on JCE was limited. Perusing the literature today, there is definitely
a larger and vocal critique of JCE, in addition to the body of Defence
litigation at both Tribunals. This is a positive step, but unfortunately offers
no redress to those wrongly convicted under the theory of JCE. Cases can
not be “re-opened” based on the increasing acknowledgement of the defects
inherent in JCE and these convictions cannot be written off as “collateral
damage” in the quest to assign collective blame and responsibility. The
defective doctrine of JCE has been a lynchpin in the injustices of the
Tribunals, and illustrates how legal doctrine, often nurtured by the
Chambers, services the political agenda of the Prosecution. The result is a
political and legal legacy of tortured law and tortured “justice.”
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