Non-State Actors and International Law
The Library of Essays in International Law Series Editor: Robert McCorquodale
Titles in the Series: International Law of Human Rights Michael K. Addo
Sources of International Law Martti Koskenniemi
International Law and Indigenous Peoples S. James Anaya
International Refugee Law He'l2ne Lambert
International Law and Islamic Law Mashood A. Baderin
Space Law Francis Lyall and Paul B. Larsen
The International Criminal Court Olympia Bekou and Robert Cryer
Self-Determination in International Law Robert McCorquodale
Non-State Actors and International Law Andrea Bianchi
International Dispute Settlement Mary Ellen 0 'Connell
Democracy and International Law Richard Burchill
International Crimes Nikos Passas
Law of the Sea Hugo Caminos
International Environmental Law Volumes 1and I1 Paula M. Pevato
The Law of Treaties Scott Davidson Humanitarian Law Judith Gardam International Legal Personality Fleur Johns International Economic Regulation Jane Kelsey International Organizations Jan Klabbers International Peacekeeping Boris Kondoch
State Responsibility in International Law Rene' Provost Jurisdiction in International Law Michael Reisman Title to Territory Malcolm N. Shaw The Nature of International Law Gerry Simpson Collective Security Law Nigel D. White
Non-State Actors and International Law
Edited by
Andrea Bianchi Graduate Institute of International and Development Studies, Geneva
ASHGATE
O Andrea Bianchi 2009. For copyright of individual articles please refer to the Acknowledgements. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Wherever possible, these reprints are made from a copy of the original printing, but these can themselves be of very variable quality. Whilst the publisher has made every effort to ensure the quality of the reprint, some variability may inevitably remain. Published by Ashgate Publishing Limited Wey Court East Union Road Farnharn Surrey GU9 7PT England Ashgate Publishing Company Suite 420 101 Cherry Street Burlington, VT 05401-4405 USA Ashgate website: http:/lwww.ashgate.com
British Library Cataloguing in Publication Data Non-state actors and international law. - (The Library of essays in international law) 1. Non-state actors (International relations) 2. Non-governmental organisations - Law and legislation 3. Persons (International law) 4. Liability (Law) I. Bianchi, Andrea 34 1.2 Library of Congress Cataloging-in-Publication Data Non-state actors and international law 1 edited by Andrea Bianchi. p. cm. -- (The library of essays in international law) Includes index. ISBN 978-0-7546-2833-0 (alk. paper) 1. Non-governmental organizations. 2. Persons (International law) 3. International law. I. Bianchi, Andrea. 524841.N6567 2009 341.2--dc22 2008030729 ISBN: 978-0-7546-2833-0
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Contents Acknowledgements Series Preface Introduction: Relativizing the Subjects or Subjectivizing the Actors: Is That the Question.; PART 1 NON-STATE ACTORS IN THE THEORY OF INTERNATIONAL LAW 1 Hersch Lauterpacht (1970), 'The Subjects of International Law', in E. Lauterpacht (ed.), International Law. Being the Collected Papers of Hersch Lauterpacht, Volume I: The General Works, Cambridge: Cambridge University Press, pp. 136-50. 2 A. Claire Cutler (2001), 'Critical Reflections on the Westphalian Assumptions of International Law and Organization: A Crisis of Legitimacy', Review of International Studies, 27, pp. 133-50. 3 Jan Klabbers (2003), '(I Can't Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors', in Jarna Petman and Jan Klabbers (eds), Nordic Cosmopolitanism. Essays in International Law for Martti Koskenniemi, LeidedBoston: Martinus Nijhoff, pp. 35 1 4 9 . 4 Daniel Thiirer (1999), 'The Emergence of Non-Governmental Organizations and Transnational Enterprises in International Law and the Changing Role of the State', in Rainer H o h a n n (ed.), Non-State Actors as New Subjects of International Law, Berlin: Duncker & Humblot, pp. 37-58. 5 Janne E. Nijman (2007), 'Paul Ricoeur and International Law: Beyond "The End of the Subject". Towards a Reconceptualization of International Legal Personality', Leiden Journal of International Law, 20, pp. 25-64.
PART I1 THE EMPIRICAL APPROACH: SELECTED NON-STATE ACTORS 6 Robert McCorquodale (2006), 'The Individual and the lnternational Legal System', in Malcolm Evans (ed.), International Law (2nd edn), Oxford: Oxford University Press, pp. 307-32. 7 Steve Charnovitz (2006), 'Nongovernmental Organizations and International Law', American Journal of lnternational Law, 100, pp. 348-72. 8 Oscar Schachter (l977), 'The Invisible College of International Lawyers', Northwestern University School of Law Review, 72, pp. 21 7-26.
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PART 111 PARTICIPATION BY NON-STATE ACTORS IN INTERNATIONAL LEGAL PROCESSES Law-Making 9 Michael J. Struett (2004), 'NGOs, the International Criminal Court, and the Politics of Writing International Law', in I.F. Dekker and W.G Werner, Governance and International Legal Theory, LeidenJBoston: Martinus Nijhoff, pp. 321-53. 10 Kenneth Anderson (2000), 'The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organizations and the Idea of International Civil Society', European Journal of International Law, 11, pp. 91-120.
22 1
Law Adjudication 11 Lance Bartholomeusz (2005), 'The Amicus Curiae before International Courts and Tribunals', Non-State Actors and International Law, 5, pp. 209-86.
253
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Law Enforcement 12 Alix Gowlland Gualtieri (2002), 'The Environmental Accountability of the World Bank to Non-State Actors: Insights from the Inspection Panel', British Yearbook of 333 International Law, 72, pp. 2 13-53. 13 Andrea Bianchi (1997), 'Globalization of Human Rights: The Role of Non-state Actors', in G. Teubner (ed.), Global Law without a State, Aldershot: Dartmouth, pp. 179-212. 375 PART IV NON-STATE ACTORS' ACCOUNTABILITY: THE QUEST FOR NEW PARADIGMS 14 August Reinisch (2005), 'The Changing International Legal Framework for Dealing with Non-State Actors', in P. Alston (ed.), Non-State Actors and Human Rights, Oxford: Oxford University Press, pp. 37-89. 41 1 15 William A. Schabas (2002-2003), 'Punishment of Non-State Actors in NonInternational Armed Conflict', Fordham International Law Journal, 26, pp. 907-33. 465 16 Jill Marshall (2005), 'Torture Committed by Non-State Actors: The Developing Jurisprudence from the Ad Hoc Tribunals', Non-State Actors and International Law, 5, pp. 171-82. 493 17 Robert McCorquodale and Penelope Simons (2007), 'Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law', Modern Law Review, 70, pp. 599426. 505 18 Erik B. Bluemel(2005), 'Overcoming NGO Accountability Concerns in International Governance', Brooklyn Journal of International Law, 31, pp. 139-206. 533
Index
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Acknowledgements My heartfelt thanks to Lorenzo Gradoni, Melanie Samson and Fouad Zarbiev for their assistance in the preparation of this edited volume. Thanks also to Katherine Del Mar for her editing work on the Introduction. The editor and publishers also wish to thank the following for permission to use copyright material. Brill Academic Publishers for the essays: Jan Klabbers (2003), '(I Can't Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors', in Jarna Petrnan and Jan Klabbers (eds), Nordic Cosmopolitanism. Essays in International Law for Martti Koskenniemi, Leideni Boston: Martinus Nijhoff, pp. 35 1 4 9 . Copyright O 2003 Brill Academic Publishers; Michael J. Struett (2004), 'NGOs, the International Criminal Court, and the Politics of Writing International Law', in I.F. Dekker and W.G. Werner, Governance and International Legal Theory, LeidentBoston: Martinus Nijhoff, pp. 321-53. Copyright O 2004 Brill Academic Publishers; Lance Bartholomeusz (2005), 'The Amicus Curiae before International Courts and Tribunals', Non-State Actors and International Law, 5, pp. 209-86. Copyright O 2005 Brill Academic Publishers; Jill Marshall (2005), 'Torture Committed by Non-State Actors: The Developing Jurisprudence from the Ad Hoc Tribunals', Non-State Actors and International Law, 5, pp. 171-82. Copyright O 2005 Brill Academic Publishers. Brooklyn Journal of lnternational Law for the essay: Erik B. Bluemel (2005), 'Overcoming NGOAccountability Concerns in International Governance', BrooklynJournal oflnternational Law, 31, pp. 139-206. Copyright O 2005 Brooklyn Journal of lnternational Law. Cambridge University Press for the essays: A. Claire Cutler (2001), 'Critical Reflections on the Westphalian Assumptions of International Law and Organization: A Crisis of Legitimacy', Review of International Studies, 27, pp. 133-50. Copyright 0 2001 British lnternational Studies Association; Janne E. Nijman (2007), 'Paul Ricoeur and International Law: Beyond "The End of the Subject7'. Towards a Reconceptualization of lnternational Legal Personality', Leiden Journal of lnternational Law, 20, pp. 2 5 4 4 . Copyright 02007 British International Studies Association. Copyright Clearance Center for the essay: Steve Charnovitz (2006), 'Nongovernmental Organizations and International Law', American Journal of International Law, 100, pp. 34872. Duncker and Humblot GmbH for the essay: Daniel Thiirer (1999), 'The Emergence of NonGovernmental Organizations and Transnational Enterprises in International Law and the Changing Role of the State', in Rainer Hofmann (ed.), Non-State Actors as New Subjects of International Law, Berlin: Duncker & Humblot, pp. 37-58.
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Lauterpacht Center for the essay: Hersch Lauterpacht (l970), 'The Subjects of lnternational Law', in E. Lauterpacht (ed.), International Law. Being the Collected Papers of Hersch Lauterpacht, Volume I: The General Works, Cambridge: Cambridge University Press, pp. 136-50. Copyright O 1970 Lauterpacht Center. Robert McCorquodale and Penelope Simons (2007), 'Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law', Modern Law Review, 70, pp. 599426. Copyright O 2007 Robert McCorquodale and Penelope Simons. Oxford University Press for the essays: Robert McCorquodale (2006), 'The Individual and the International Legal System', in Malcolm Evans (ed.), International Law (2nd edn), Oxford: Oxford University Press, pp. 307-32. Copyright O 2006 Oxford University Press; Kenneth Anderson (2000), 'The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organizations and the Idea of International Civil Society', European Journal of International Law, 11, pp. 91-120. Copyright O 2000 Oxford University Press; Alix Gowlland Gualtieri (2002), 'The Environmental Accountability of the World Bank to Non-State Actors: Insights from the Inspection Panel', British Yearbook of International Law, 72, pp. 213-53. Copyright O 2002 Oxford University Press; August Reinisch (2005), 'The Changing International Legal Framework for Dealing with Non-State Actors', in P. Alston (ed.), Non-State Actors and Human Rights, Oxford: Oxford University Press, pp. 37-89. Copyright O 2005 Oxford University Press. William A. Schabas for the essay: William A. Schabas (2002-2003), 'Punishment of NonState Actors in Non-International Armed Conflict', Fordham International Law Journal, 26, pp. 907-33. Copyright O 2002-2003 William A. Schabas, published by Fordham University School of Law. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.
Series Preface Open a newspaper, listen to the radio or watch television any day of the week and you will read or hear of some matter concerning international law. The range of matters include the extent to which issues of trade and human rights should be linked, concerns about refugees and labour conditions, negotiations of treaties and the settlement of disputes, and decisions by the United Nations Security Council concerning actions to ensure compliance with international law. International legal issues have impact on governments, corporations, organisations and people around the world and the process of globalisation has increased this impact. In the global legal environment, knowledge of international law is an indispensable tool for all scholars, legal practitioners, decision-makers and citizens of the 2 1st century. The Library of Essays in International Law is designed to provide the essential elements for the development of this knowledge. Each volume contains essays of central importance in the development of international law in a subject area. The proliferation of legal and other specialist journals, the increase in international materials and the use of the internet has meant that it is increasingly difficult for legal scholars to have access to all the relevant articles on international law and many valuable older articles are now unable to be obtained readily. These problems are addressed by this series, which makes available an extensive range of materials in a manner that is of immeasurable value for both teaching and research at all levels. Each volume is written by a leading authority in the subject area who selects the articles and provides an informative introduction, which analyses the context of the articles and comments on their significance within the developments in that area. The volumes complement each other to give a clear view of the burgeoning area of international law. It is not an easy task to select, order and place in context essays from the enormous quantity of academic legal writing published in journals - in many languages -throughout the world. This task requires professional scholarly judgment and difficult choices. The editors in this series have done an excellent job, for which I thank and congratulate them. It has been a pleasure working with them. ROBERT McCORQUODALE General Series Editor School of Law University of Nottingham
Introduction Relativizing the Subjects or Subjectivizing the Actors: Is That the
Question? Context
The Library of Essays in International Law is a valuable series of books. Among other things, it is an attempt to restore doctrine to its ancient role of collecting relevant legal materials and providing guidance to scholars as well as practitioners. In the early days, doctrine carried out this function by assembling primary sources, which were difficult to retrieve. Its role was prominent in finding the instances of state practice, and thereby systematizing and making available to the interested public - which would include other scholars, state officials and courts -the fundamental elements on the basis of which legal decisions were to be taken and the law was to be found. Certainly, this process was not a neutral one. The way in which the relevant materials were chosen, assembled and presented depended heavily on the way in which doctrine perceived of the international legal system and its proper functioning. Acting as a broker between raw legal materials and its users, doctrine shaped international law to its own liking. The task was somewhat facilitated by arelative convergence ofviews about what international law was about and which purposes it was meant to serve. The most highly qualified publicists of the time, to borrow the term used in the Statute of the Permanent Court of International Justice,' provided evidence of the rules of international law. Whether in so doing they also created such rules is a question that goes beyond the purpose of these introductory remarks. Be that as it may, scholars had control over the way in which the law was made and applied. The pioneering effort by Arnold McNair and Hersch Lauterpacht in the early 1920s to launch the Annual Digest of Public International Law Cases ( 1 9 19-32) (later Annual Digest and Reports of Public International Law Cases (1 933-49) and subsequently renamed International Law Reports), which brought together judicial decisions, including those by national courts, at the core of international practice, attests to this active role of doctrine, including its intermediary function as regards primary sources (Jennings, 1998). At this point, one might think that the historical reminiscing about the early last century doctrine has carried the author away, or, at least, has led him astray. In fact, a similar intermediary role could be aptly performed nowadays by doctrine for completely different reasons. Certainly, in a world where there is no want of information, where most legal materials have become accessible at real time, where databases are as numerous and rich as to satisfy
' See Art. 38 (d) of the International Court of Justice Statute listing 'the judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law', applicable by the Court to disputes submitted to it.
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even the most eager law journal reader, the role of doctrine may no longer consist of disclosing hidden materials and unravelling instances of practice which would go otherwise unnoticed by the unskilled researcher. Yet, somewhat paradoxically, doctrine may still mediate, no longer between primary sources and their potential users but, rather, between secondary sources and interested readers. The proliferation of publications and the ensuing panoply of writings, the scant quality control of many existing publications, the redundant stratification of well-known arguments in endless law review essays, the lengthy compilations of a-critical commentaries and a certain inclination (by some segments of the academic corporation) to conceive of scientific writing as an industrial production process, all are elements that contribute to make international legal scholarship a discipline in disarray. Against this backdrop, some selectivity is indeed warranted. In this respect, to sift out the most important contributions on any given area of international law is an exercise worth the effort. To take up the responsibility of providing interested readers with some of the writings that have better contributed to the understanding of the state of the law in a certain area of international regulation appeared to me a valuable service to the scientific community. This is why I accepted with pleasure the invitation to edit a volume of essays on the topic 'Non-state Actors and International Law'. I thought that the exercise would be a good opportunity to revise the extant literature, to find pieces I had never read before or to retrieve from my memory recollections of readings done long ago, which had struck me at the time as particularly interesting or thought-provoking. Much to my dismay, the search has been difficult and has brought about some sense of frustration. In particular, I would have expected to find myriad contributions of a theoretical character, which would shed light on the concept of 'actor' in international legal processes, to be contrasted with the more traditional notion of 'subject'. Having set out to lay down the theoretical framework for a theory of actors in international law - what luck not to have to do it yourself, but rather rely on colleagues who have already done it for you! - I soon found myself incapable of tracing the plethora of writings I expected to find. Several explanations may lie at the heart of the above-mentioned difficulties. The simplest one is that I have not researched well enough and that what I was looking for is actually out there, in some law journal, monographic study or edited volume which I have overlooked. This could reasonably account for my failure, one not particularly flattering for my ego as a researcher, but certainly comforting to the discipline: what you need is there if only you can find it. However, the many colleagues and collaborators whom I had asked to draw to my attention interesting writings on the topic had no more success than I did, which probably means that the difficulties are real. Second, I thought that the outcome of a research depends heavily on the queries one submits and the premises one starts from. Perhaps I was wrong to search for studies on the actors of international law, simply because there is no such thing in the general theory of international law. Mainstream scholarship still thinks in terms of 'subjects' and international legal personality. The term 'actor' comes from the language of political science. This may attest to an ever-increasing cross-fertilization between the two disciplines. Or, perhaps, it is simply evidence that once the border of interdisciplinarity is crossed, what lies ahead is a barren plain with no landmarks or other distinctive signposts. Against this background, what makes a piece of scholarly writing eligible for inclusion in this volume of essays is debatable. Should one select only those essays that have been written by international lawyers proper - that is, members of the 'scientific field' (Bourdieu,
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1981) who are socially recognized as laying a legitimate claim to scientific authority and competence in international law? But then one may wonder whether those who are clearly not readily identifiable with the discipline of international law and yet have published their work in international law journals or books edited by international lawyers may likewise lay such a legitimate claim. Is publication in international law books and journals the determinant factor? Or should one reach out to scholarly contributions that, although admittedly belonging to other disciplines, may shed light on some aspects of the functioning of the international legal system and inspire from outside hrther thinking within the discipline? These questions are clearly reminiscent of Hart's distinction between the internal and external point of view on the law (Hart, 196 1, pp. 86-88).2 A contemporary and contextual reappraisal of the dichotomy would arguably presuppose that clarity be made at the outset about what is meant by internal and external as well as the usefulness and propriety of placing oneself strictly within the internal perspective. If the above-mentioned distinction appeared as relatively clear-cut and straightforward at the time when the positivist theory of law provided a unitary and selfsufficient framework of analysis, in the present time to distinguish between internal and external perspectives requires a prior definition of what are the boundaries that connote the 'legal' and make it distinct from other aspects andlor dimensions of social life. The difficulty of providing sound answers to the above queries may be one of the reasons why international legal scholarship has carefully avoided dealing with the issue of non-state actors in a systematic way. It is extraordinary to realize how little attention the theoretical discourse about non-state actors has drawn. Yet this reluctance is understandable. In fact the issue lies at the interface of theory and practice, law and policy, and the stance you take about it is likely to have repercussions on such other systemic issues as law-making and law enforcement. To use Jan Klabbers' words (from Chapter 3), 'subjects doctrine forms the clearing house between sources and substance: it is through subjects doctrine that the international allocation of values takes place, and as any political scientist knows, the authoritative allocation of values is one of the main political functions' (p. 55). The subjects1 actors discourse, therefore, takes place in a variety of contexts on a small scale. Most of the time the narrative describes how different actors participate in legal process in any given area, such as international human rights law, environmental law and international economic law. Whether the same actors play a role in other areas is often of little interest, and the extreme fragmentation of relevant studies makes one think that the concept of 'regime' has also been successfully imported from political science. At this point, I suppose I have made a strong enough case to argue that my task was not an easy one and that what is proposed to the reader in this volume did not come naturally from the state of the literature. Nor have I demonstrated a capacity or inclination to assemble the scattered pieces of the mosaic back into a coherent pattern where figures and objects can be clearly seen. I suspect that to entrust the preparation of this book to someone who clearly subscribes to one of the methodslschools that characterize international legal scholarship in the present time would have been much more beneficial to the overall coherence of the volume. A positivist would have had plenty of choice among traditional writings on the subjects of international law. Suffice to look at most manuals and treaties that are currently As is known, Hart's distinction remains controversial. For a recent reappraisal, see Perry (1995).
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used in European universities to realize that the prevailing discourse is still one concerning the subjects of international law. Alongside a solid study of the doctrine of subjects, there would have been some critical voices about the diminished importance of the state and an essay restating the fundamental role that states will continue to play. Then, the discussion would have shifted to the personality of international organizations, against the background of international case law, particularly the International Court of Justice's and, if the editor were a 'progressive' scholar, he or she would have included a selection of contributions making the case for individuals having partial or relative personality. By the same token, if a New Haven School representative were to indulge in the exercise, she would hardly have mentioned the doctrine of subjects, but rather would have concentrated on the decision-making process and its many participants. She would have made clear that the way in which participants operate depends heavily on context and the values that they want to foster. I doubt that there would have been a reference to the case law of the International Court of Justice. Perhaps there should be as many volumes as there are methods and schools to provide everybody with the comforting view that even the language of the subjects can be spoken in their own dialect?
Non-State Actors in the Theory of International Law (Or dowsing for theory: the divining rod does not vibrate) Conceptual thinking about non-state actors poses numerous challenges. As regards terminology, one may wonder whether the term, which has come to be part of the common parlance of international lawyers, has merely a descriptive connotation, used to encompass those actors that are not states, or whether it refers, in a prescriptive fashion, to a particular status, recognized by the international legal order, to which specific legal connotations are attached. One would expect theory to have tackled this issue and have provided satisfactory responses to such a fundamental question. In fact, despite the increasing use of 'non-state actors' as a term of art, no systematization seems to have been made in the literature which could satisfactorily account, from the theoretical perspective, for the role played by non-state actors in contemporary international law. Traditional doctrine provided a neat framework of analysis. The international legal system recognized only a limited number of entities, primarily states, which could bear rights and duties under international law. The concept of international legal personality was meant to cover those entities which 'the legal system has cast to appear on the stage of the law' (Cheng, 1991, p. 24). As the etymology of the words suggests, only those personae that played a direct role in the legal system could appear on stage, regardless of the other entities that might participate in the production of the play. The latter would be of interest to sociologists and political scientists but were irrelevant to legal analysis. The question 'Who is the subject?' found an obvious answer in a strongly state-centred system, where states had the monopoly of law-making, law adjudication and law enforcement processes (Weil, 1992, p. 122). In a somewhat tautological fashion, 'indices' of the legal personality of entities at international law were traced to the capacity of certain entities to perform such functions as to exchange diplomatic missions or to conclude treaties, which were all typical states' prerogatives (Cheng, 1991, p. 38). Anomalies could always be accommodated and their marginal character posed no systemic threat (Arangio-Ruiz, 1996). Over time, legal personality reached out to international organizations, in many ways a direct emanation of states, and the International
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Court of Justice Advisory Opinion on the Reparation for Injuries case paved the way for relativizing the doctrine of subjects and adjusting it to the new demands of the international ~ommunity.~ Ever since, the doctrine of subjects has resisted any attempt at revision and still stands as a cornerstone of positivistic legal analysis. Most textbooks and treaties still have a section on the subjects of international law, and the unity of the system is being preserved by denying the existence of new scientific paradigms and schools of thought that, in the meantime, have done away with traditional theory and have proposed frameworks of analysis based on entirely different tenets. The merit of sociological approaches to international law and, particularly, the introduction of policy analysis by the New Haven School is to have highlighted that the social fabric and structure of the international legal system, on the one hand, and its subjects1 actors, on the other, are 'mutually-constitutive'. Constructivist theories, elaborated in the field of international relations, have shown that the interaction among different actors constitutes the structure of the system and the latter shapes the identity, interests and expectations of the actors in a mutual process of influence (Arend, 1998, p. 129; Mertus, 1999-2000). When and how the terminology of actors andor participants made its way into international law may be subject to controversy. Certainly, Rosalyn Higgins' critique of the old theory of the subjects (1994) and its advocacy of the notion of participants in international decisionmaking processes has greatly contributed to giving legitimacy to such a new terminology. The argument that, by construing the reality of international law in terms of 'subjects' and 'objects', '[wle have erected an intellectual prison of our own choosing and then declared it to be an unalterable constraint' (Higgins, 1994, pp. 49-50) carries much force, particularly because the distinction does not seem to serve any particular functional purpose. This, however, is unlikely to convince the positivist who would rebut, not without reason, that the doctrine of sovereign equality and the doctrine of subjects are constitutive fictions 'that require acceptance if the whole edifice of the international legal system is not to be called into question' (Dupuy, 2003, p. 179). The point is well taken, insofar as it highlights that the way in which one conceives of international law inevitably reflects on the way in which such fundamental questions as to 'who makes the law' and 'who is the subject of the law' are answered. In fact, to conceive of international law as a body of rules in a community of states or as a legal process in a community where 'there are a variety of participants, making claims across state lines, with the object of maximizing various values' (Higgins, 1994, p. 50) is not the same thing, and the use of a different terminology hardly hides a fundamental difference in thinking of the international legal system. The situation of disarray in which the doctrine of subjects/actors seems to be is further attested by the attempt to put together such different visions with a view to reconciling them. In a recent book, the relevance of the proliferation of actors to treatymaking has been assessed by Roben (2005) who has taken for granted the variety of actors that contribute to making international law. Dupuy's comment on the paper, and his tremendous difficulty in accommodating such a way of thinking in relation to the traditional doctrine of subjects, is evidence of a certain malaise within the profession to abandon the old scheme and 'The subjects of law in any legal system are not necessarily identical in their nature or the extent of their rights, and their nature depends upon the needs of the international community. Throughout its history, the development of international law has been influenced by the requirements of international life' (1949 ICJ Reports, p. 178).
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embrace new ones. Dupuy's fictitious joke, reporting a hypothetical conversation with Jean Combacau, who would not understand the expression 'non-state actors' as such a term would fall 'outside the scope of legal analysis', is too ostentatious to be an exercise in self-irony. In fact, the foundational character of the doctrine of subjects to positivist thinking does not allow its adherents to relinquish it lightheartedly. Even if they are ready to concede that the doctrine is no longer capable of explaining the complexities of contemporary international law-making, the lack of an intellectually systematic alternative would nevertheless cause them to cling to the old framework. The inadequacy of the doctrine of subjects has been underscored by numerous authors. Indeed, in one of the earliest statements, Hersch Lauterpacht, writing on 'The Subjects of International Law' (Chapter 1) contends that 'the individual human being is the ultimate unit and end of all law' (p. 16). Key to any such critique is the acknowledgment that the changing social structure of the international community must be adequately accounted for and that new conceptual tools are required. The solipsistic vision of state sovereignty as the quintessential element of the international community of states must give way to a contemporary assessment of the social forces that structure a wider community whose members have 'values, identities and roles distinct from the geographic limitations of states' (McCorquodale, 2006, p. 149). In her essay on 'Critical Reflections on the Westphalian Assumptions of International Law and Organization: A Crisis of Legitimacy' (Chapter 2), Claire Cutler notes that '[tlhe logic of the liberal representative state and consent-based notions of international law' (p. 36) do not allow reconsideration of the state as the only subject of the international legal system, thus causing a 'disjunction between theory and practice'which is conducive to a 'crisis of legitimacy' (pp. 33 ff). As is well known, despite Franck's effort (1999) to introduce legitimacy into the vocabulary of international law, the term makes positivist lawyers diffident by their incapacity to attach to it sufficiently precise legal connotations. In this context, however, its meaning is self-evident. As Cutler shows, if the participants in international legal processes fail to see their social practices reflected in the law, the law's claim to authority will be undermined. Attempts to reduce the gap between theory and practice and to address the issue of subjects1 actors in a comprehensive way have not been numerous. Jan Klabbers does it in Chapter 3, '(I Can't Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors', as discussed earlier. In addition, a new approach to the theory of international legal personality has been put forward, with a view to introducing a rebuttable presumption of normative responsibilities of de facto p o w e h l actors. According to Nowrot, the influential position of some non-state actors would create the presumption that international legal obligations concerning 'the promotion of community interests such as the protection of human rights, the environment and core labour and social standards' are applicable to them (2005, p. 13). Such an approach would ensure that international law fulfils its mission of 'comprehensively civilizing international relations' (ibid.). As to the objection that the concept of 'influential actor' would be too indeterminate to attach to it a particular status, the proponent of the theory submits that the influence of any given actor can be objectively measured on the basis of such criteria as direct or indirect participation in international law processes, as well as its capacity to contribute to promoting common interests and protecting global public goods. A constitutional perspective, such as the one adopted by Daniel Thiirer in Chapter 4, 'The Emergence ofNon-Governmental Organizations and Transnational Enterprises in International Law and the Changing Role of the State', is also likely to cast the debate in a new light. By
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acknowledging the changing structure of international law and the impact of globalization on world affairs, Thurer advocates the adoption of a constitutional approach that focuses on the basic components of the legal system, thus doing away with the doctrine of subjects. In Thurer's enlarged notion of 'international community' there would be no room for formalistic doctrines of legal personality and 'the new actors in our globalizing world might more easily be moulded into the system of international law if we try to conceive of them as factors and forces of a broader constitutional order' (p. 74). To agree with this characterization of international law actors implies, for Thurer, an endorsement of the underlying constitutional perspective which puts forward a vision of international law gradually drifting towards a form of world federalism where states are no more than mediators or 'bridges' between communities on the local, regional and global plane. Whether or not this is the way in which international law is going, the attempt to move away from formalistic constructions is self-evident. Yet another way to depart from the doctrine of subjects is to focus directly on the scope of application of international norms and to identify their addressees without drawing any conclusion in terms of subjectivity, properly so-called. In other words, what matters is to determine whether any specific obligation is applicable to any given non-state actor. The answer to this question is not predetermined by the subjectivity (or lack thereof) of the non-state actor but by a number of factors ranging from international practice to policy considerations. Furthermore, the ultimate purpose of any such query is not to determine whether the entity is a subject of international law, but more simply whether a certain intemational legal obligation is applicable to it. This approach, which inspires many works, has been recently used by Andrew Clapham (2006a, 2006b) in his work on the human rights obligations of non-state actors. Its merit lies primarily in de-emphasizing the importance of the notion of 'subject', to focus more pragmatically on the actual scope of application of international obligations. A strong policy consideration for adopting this approach is the need to promote the implementation of rules and their underlying values. lf the prohibition of torture is perceived to be a fundamental value by the international community, its respect should be owed by all actors, regardless of whether they are a state or a non-state. But to impose obligations directly on non-state actors presents the obvious disadvantage of divesting states of their responsibility to ensure compliance with international law obligations (Vazquez, 2004-2005). Unless such a direct imposition of obligations on non-state actors is coupled with effective enforcement mechanisms, it may be ill-advised to rely on this normative strategy to the detriment of more traditional and, arguably, more effective state-centred paradigms of intemational obligations (ibid.). By and large the most engaging and intriguing attempt to revisit the notion of international legal personality at international law is the work of Janne Elisabeth Nijman, in particular her monographic study on The Concept of International Legal Personality (2004). In an attempt to revive the naturalist tradition of international law, founded on considerations of ethics and morality, Nijman puts forward a theory of international legal personality whereby individuals - the primary legal persons in international law - possess 'a natural right to political participation . .. the right to have rights, [which] includes the right to live in a world governed by just institutions' (ibid., p. 472). As a corollary to such a natural right, the individual (the Self) also has 'the duty to take moral and political responsibility' (ibid., p. 473) to respect the Other and, as Nijman states in Chapter 5, 'to fight against exclusion and misrecognition on the global scale' (p. 115). The fiction of the state's international legal personality (the mask) as shaped by classical international law is doomed to subside and give way to a new concept
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of international legal personality (the vocal chords) which, by linking law to justice, refers to the capacity to speak and act, and, in a broader sense, 'the capacity to be a political participant, with a natural right to such participation' (Nijman, 2004, p. 469). In a later essay, 'Paul Ricoeur and International Law: Beyond "The End of the Subject7" (Chapter 5), Nijman, who thrives on the works of the French philosopher Paul Ricoeur, particularly his hermeneutics of the Self, further elaborates on the notion of international legal personality as 'life in global institutions7(p. 115). The quest for a new cosmopolitan ethics requires 'the participation of the whole of humanity through different associations and institutions' (p. 117). The reconstitution of every individual and collective Self in relation to others is constitutive of a social order of mutual recognition and respect. This idea of international legal personality as 'moral identity constituted in the dialectic relation of Self and Other(nes)s' (p. 118) is an admirable attempt at changing the language of international law by reconceptualizing some of its foundational tenets. Although, admittedly, Nijman refuses to engage in the analysis of international practice, some of her findings obviously bear on practice. For instance, she advocates the attribution of personality to non-state actors in an inclusive fashion and she denies personality to those states who are no longer capable of expressing and protecting the personality of their citizens (Nijman, 2004, p. 469). Unlike Allott, who would do away with the traditional category of subjects and allow for the recognition of the countless participants in international legal relations 'as the needs of international society demand' (1990, p. 372), Nijman confers to the concept of international legal personality a fundamental role in ordering international society and shaping the contours of a new and more just international order. Interestingly enough, Nijman's fundamental tenet may be thought to rejoin Hersch Lauterpacht's contention in Chapter 1 that 'the individual human being is the ultimate unit and end of all law' (p. 16). What to make of such convergence of views among scholars, who have written at dramatically different times and from so divergent theoretical standpoints, is no easy task. If one were to venture into some synthesis of sorts, it would be reasonable to speculate that a common feature of their respective theories is the centrality of the human being in law. Law, however, is a political project which different people conceive of in an entirely different way. To Lauterpacht, to acknowledge the central role of the individual and to look at it as subject of all law was 'an essential stage in the progression of the international community towards the goal of federal integration' (p. 16; my emphasis). To Nijman, to recognize that the individual is 'the legal personality par excellence of international law' (Nijman, 2004, p. 473) is instrumental to putting forward her main thesis that '[International Legal Personality] forms the cords between the individual human being and the universal human society' (ibid., p. 473). The task of international law and of the international community would then be to 'guarantee the rights to have rights, the right to political participation, i.e. the right to speak out and raise one's voice' (ibid., p. 473). Against this background, international legal personality takes up an entirely new function within a brand new project of international society made of just institutions. International legal personality stands somewhere in between morals and politics and is part and parcel of a more ambitious project to refound international law on an ethical basis. Incidentally, the call for laying down a moral foundation for international law is not isolated and goes hand in hand with other intellectual projects, apparently inspired by entirely different considerations (Franck, 1999; Buchanan, 2007; Koskenniemi, 2007).
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This vision, characterized by some commentators as 'utopian idealism' (Masciulli, 2006), is unlikely to appeal to the positivist who would typically look at it as an exercise in 'sociopolitical history' deprived of practical legal relevance (Kolb, 2007). However, the proliferation of studies that attempt to put forward dramatically different conceptual perspectives should not be taken lightheartedly as they attest, at the very least, to the unsatisfactory character of traditional international law frameworks as regards their capacity to explain the reality of contemporary international law and, most of all, to direct its future development.
The Empirical Approach: Selected Non-State Actors To account for the whole range of entities that could qualify as non-state actors is not the purpose of this edited volume. Given the controversial character of the topic and the dissonant voices in international legal scholarship, it would have been simply pretentious to lay claim to an exhaustive presentation of non-state subjects/actors. This limitation appears all the more compelling when one realizes that nowadays the range of non-state actors can be stretched almost ad libitum to include all sorts of actors, including 'scientists, technicians, auxiliary staff, and engineers in the academic, industrial research and life science communities', at least as regards the proliferation of weapons of mass destruction (Prescott, 2007, p. 41). The task is rather that of bringing forward a few, selected contributions which may help think about the topic in a stimulating way. The first essay in Part 11 is Robert McCorquodale's 'The Individual and the International Legal System' (Chapter 6). By thoroughly reviewing the role of individuals, including groups of individual^,^ in the different areas of international law, McCorquodale concludes that the individual is an independent participant in the international legal system, even though the degree of participation may vary depending on the changing needs of international law. The fact that nowadays many, but certainly not all, international law scholars would admit that individuals are subjects or legitimate actors of international law should not be a cause to overlook the long and painful process that eventually led to the recognition of the role of individuals in international law. In many ways, this is a paradigmatic example, as it shows how sensitive an issue the inclusion/exclusion of any given entity as subjectlactor of the system can be (McCorquodale, 2004, pp. 481 ff). Given their increasing role in international law-making, law adjudication and law enforcement processes, particular consideration is given in this section to non-governmental organizations (NGOs). In fact, it would be simplistic to think that NGOs have only recently made their appearance on the international scene (Martens, 2003). Steve Charnovitz's essay in the Michigan Journal of International Law (1996-97) provides a detailed account of the different historical phases of NGO involvement in international affairs. The book-length and readily available character of the piece advised against its inclusion in this volume of essays. Another essay by Charnovitz, 'Nongovernmental Organizations and International Law', is included as Chapter 7 in this volume, and in this he gives a more succinct and yet effective account of the role of NGOs in contemporary international law. Charnovitz concludes by striking a note of optimism when he says that NGOs will continue to inject into the debate
For additional insights on the rights of peoples, see also Tomuschat (1986) and Korkeakivi (1993).
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'competing facts and sentiments', thus paving the way for a 'more englobing international law in the twenty-first century' (p. 171). How this is to be done remains an open question. Finally, an explanation may be owed for including Oscar Schachter's seminal work on the 'Invisible College of International Lawyers' (Chapter 8). Since the essay was written, the college and its influence have become more visible, with international lawyers playing an ever-increasing role in shaping the discipline and its practice. If they have failed in preserving the unity of the discipline, as Schachter had wished, their acting under the different guise of scholars, counsel, international judges and legal advisers make them a powerful actor on the scene. Their actual influence on the development of international law cannot be underestimated. An astounding example of such influence is given by the manner in which international lawyers have moulded the normative category of jus cogens and exploited its evocative power as a collective belief. As I have written elsewhere, by invoking its magical power and administering its rites, the magician-international lawyer has 'succeeded in making jus cogens a part and parcel of the fabric of the international law discourse' (Bianchi, 2008, p. 494). Participation by Non-State Actors in International Legal Processes
Law-Making An apt illustration of the way in which civil society and NGOs may participate in the international law-making process is given by the adoption of two treaties, the Rome Statute of the International Criminal Court and the Ottawa Convention on the ban of landmines. Certainly, these are not the only instances in which the formal interstate law-making mechanisms have been strongly influenced by NGOs. Other occurrences can be traced to recent practice that further attest to this phenomenon (Breen, 2003,2005). And yet the ICC Statute and the Ottawa Convention are prominent examples of this trend for the overt and highly publicized role that NGOs have played in their creation. This should hardly come as a surprise. As Michael Struett shows in Chapter 9, 'NGOs, the International Criminal Court, and the Politics of Writing International Law', NGOs have become more sophisticated in their lobbying strategies and the level of their expertise has remarkably improved. Indeed, the capacity to accompany their 'discursive claims' with 'expert knowledge' (p. 203; see also Kamminga, 2005, p. 110) has, in all likelihood, been crucial in enhancing their practical impact on international treaty-making. The fact that many legal experts drawn from NGOs were integrated into states' delegations in Rome is quite telling of the potential effects that their specific expertise may bring about. It may very well be that NGOs used to work in the interstices of the international system and that their whispers from the basement were barely audible upstairs to state representatives negotiating treaties. It can hardly be denied, however, that nowadays their conspicuous presence can be physically detected in the corridors of state diplomacy and their voice can be distinctly heard by any bystander. Two caveats to the above considerations seem to be in order. First, it would be misleading to think, as Kenneth Anderson aptly warns in his essay on the Ottawa Convention banning landmines (Chapter 1O), that such instances of law-making are evidence of a democratization
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of international law, some sort of springing of the law from below as opposed to the traditional interstate law-making. Quite the contrary, such a process only attests to the ever-increasing role of powerful transnational elites, and democratic legitimacy should not be conhsed with the ability to operate as pressure groups and mobilize certain segments of civil society (p. 248). Nor are NGOs necessarily to be identified with the good side as opposed to states being on the evil side, although some commentators maintain that 'irresponsible' states more than 'irresponsible' NGOs are the main problem (Kamminga, 2005, p. 11 1). Second, however thorough and systematic is the intervention of NGOs in the law-making process, the process still remains within the firm grasp of states (Martens, 2003). Once again, one is left with the choice of focusing on the formal aspects of law-making, in respect of which nothing seems to have dramatically changed, or of stressing the practical impact of unconventional actors in the formal processes. In domestic legal systems as well, laws are often adopted under pressure from lobby groups and yet the latter are not characterized as part of the law-making process. Similarly, at international law the substantial impact of NGOs on normative outcomes does not make them the formal law-maker. The tension between the 'politics of form' and the 'forms of politics' becomes palpable again and the identification of the subject proves to be, more and more, a struggle for determining who may legitimately and authoritatively allocate communal values, as Klabbers suggests in Chapter 3 (p. 55). Law Adjudication
Another relevant aspect is participation of non-state actors in international law adjudication processes. This expression can be taken to mean different things. First, it may refer to the possibility that non-state actors may be a party to international judicial proceedings. For instance, until recently the individual's lack of standing before international tribunals had been used as an argument to refuse the individual's subjectivity under international law. Nowadays, the developments that have occurred, primarily in the area of human rights, have deprived the argument of much of its force. Individuals have direct access to a number of international tribunals and may directly enforce their claims. A sketchy overview of the position of non-state actors before international jurisdictions is given by Orrego-Vicuiia (200 I), whose contribution has the merit of not limiting the analysis to the field of human rights. By and large, however, the most significant and widely discussed phenomenon in respect of participation in law adjudication processes is the submission by non-state actors, particularly NGOs, of amicus curiae briefs before international courts. Although already in the early 1990s participation of non-governmental organizations in international judicial proceedings had attracted scholarly attention (Shelton, 1994), the issue has gathered momentum particularly in recent years through the increasing practice of submitting amicus curiae briefs. Chapter 11 by Lance Bartholomeusz is the most comprehensive recent account of such practice and its inclusion in this volume of essays is justified both by its thorough treatment of the topic and by its attempt to draw some general inferences from this widely accepted practice. In fact, it is difficult to make generalizations because the issue ought to be broached on a 'tribunal by tribunal' basis as suggested by Watts (2001). International courts enjoy a great deal of discretion about whether or not to allow amicus curiae submissions, and in exercising such discretion they are obviously limited by the rules of procedure that govern their respective judicial body.
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Overall, the status and juridical nature of the amicus curiae remains uncertain. It is not the same as an expert or a witness, although it may occasionally overlap with these other categories. As regards its functions, they can be varied. Amici can provide legal expertise or factual information; provide assistance to persons and entities that may be affected by a decision in accessing the court; or act on the basis of public interest considerations as some sort of 'trustees' for the protection of communal interests. It may aptly be wondered whether this relatively new practice effectively contributes to the legitimacy and transparency of international jurisdictions. The answer must be anuanced one. Despite some scattered reference in arbitral awards to the ~ontrary,~ participation in judicial proceedings and transparency of the latter seem to be two distinct issue^.^ As regards the issue of legitimacy, the argument is double-edged. On the one hand, amici's participation to protect community interests can be perceived by the public at large as a means to ensure greater legitimacy to judicial proceedings which most ofthe time remain firmly within the grasp of power-wielding entities (Stern, 2006). On the other hand, in certain particular contexts, the increasing involvement of civil society groups and professional associations can be perceived by the 'users' of judicial mechanisms as an undue interference and, potentially, a disruptive element in the complex process of interest-accommodation that third party settlement inevitably entails. Law Enforcement Non-state actors may also effectively participate in law enforcement processes. Once again, this may occur in a variety of forms. Arelatively simple example is provided by Astrid Epiney's work (2006) on the role of NGOs in ensuring compliance with multilateral environmental agreements. By complementing the states in relevant compliance or enforcement mechanisms, NGOs could effectively contribute to enhancing the overall effectiveness of multilateral environmental agreements. Indeed, environmental protection and human rights represent the two areas in which the potential role for non-state actors in implementing international law standards is most evident. Given the well-known reluctance of states to complain publicly about their fellow states in cases of violations of international law,7 it is often NGOs that draw attention to such violations. More generally, NGOs participate in monitoring activities, either directly or indirectly, and may trigger mechanisms of compliance or enforcement. Their capacity to gather information, provide expertise and mobilize public opinion makes
See, among others, the NAFTA tribunal decision in Methanex Corp. v. United States. Decision on Petitions from Third Persons to Intervene as 'Amici Curiae', 15 January 2001, para. 49, and the ICSID tribunal decision in Aguas Argentinas S.A. and Others v. Argentina. Order in response to a Petition for Transparency and Participation as Amicus Curiae, ICSID Case No. ARB/03/19, 19 May 2005, para. 22. See the declarations of Canada ($$ 71-72) Turkey ($ 80) and Argentina ($ 93) at the WTO General Council Meeting of 2 November 2000 (WT/GC/M/60,23 January 2001). It is of note that states hardly ever take advantage of interstate claims mechanisms under human rights treaties such as Article 41 of the UN Covenant on Civil and Political Rights, Article 11 of the UN Convention on the Elimination of all Forms of Racial Discrimination or Article 21 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 33 of the European Convention on Human Rights concerning interstate claims has also been rarely applied.
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NGOs powerful actors in the implementation of international law, even in situations of armed conflict. A particularly interesting example of the way in which non-state actors have come to play a major role in checking the conduct of state actors is the Inspection Panel of the World Bank. The insights provided by Alix Gowlland Gualtieri's essay on the environmental accountability of the World Bank to non-state actors (Chapter 12) are particularly useful in appreciating this innovative form of control over the World Bank's projects and their consistency with environmental and social policies which the institution has pledged to respect. Participatory requirements stipulate that non-state actors, such as individuals, interest groups and local communities, be legally protected against the loan development operations of the World Bank. Regardless of any other consideration concerning the technical arrangements and actual practices of the Inspection Panel, the accountability mechanism set up within the World Bank further attests to the multiplicity of ways in which non-state actors can effectively contribute to implementing international law and international policies. As I attempt to show in my essay on 'Globalization of Human Rights: The Role of Nonstate Actors' (Chapter 13), the end result of these multifarious processes is that non-state actors generally, and NGOs more particularly, can create transnational solidarities and gather consensus over certain values, sometimes regardless of whether they are embodied in formal rules. In other words, they tend to create communication processes on the transnational level whereby the conduct of states is not necessarily evaluated in terms of its compliance with legally binding rules, but rather by a much less formal code, according to which the legality of their action largely depends on its being consistent with certain values, the respect of which is perceived to be mandated by law. The relevance of this process cannot be underestimated, as it casts a new light not only on the way in which non-state actors operate internationally, but also and, perhaps, most importantly, on the changing modes by which the distinction legal1 illegal is perceived and applied by relevant actors in contemporary international society.
Non-State Actors' Accountability: The Quest for New Paradigms (Or yet another slip of the international lawyer's tongue) The heterogeneity of non-state actors makes the issue of their accountability complex. Although the notion of accountability is far from being neatly defined, let alone in the legal field, the core of its meaning in this context can be intuitively grasped. Accountability is taken to refer to any form of control that can be used to hold any given actor accountable for its conduct. The standards against which such an evaluation must be performed are various and not all of them are amenable within the purview of the law, properly so-called. In this respect, recourse to what August Reinisch, in Chapter 14, 'The Changing International Legal Framework for Dealing with Non-State Actors', calls a 'legal framework' may be of some utility. Approaching pragmatically the issue ofhow to deal with non-state actors in human rights law (even though his remarks lend themselves to a certain degree of generalization), Reinisch identifies a number of elements which constitute the proposed concept of 'legal framework', ranging from behavioural standards and the procedures used to discuss, supervise and enforce them to the institutions and networks within which the procedures are implemented. Against this backdrop, issues of accountability become somewhat more immanent and intelligible if not expressed in positivistic legal terms.
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Yet one should not think that accountability stands in contradistinction to legal responsibility, properly so-called. As far as individuals are concerned, for instance, mechanisms of legal accountability have steadily developed since Nuremberg. The principle of individual criminal liability for at least some core international law crimes is widely recognized as a matter of customary international law, and individual criminal liability is also attached to a number of conducts proscribed by specific treaties. If the principle of individual criminal liability is no longer seriously called into question, major flaws still hamper its effective implementation. Until recently international criminal jurisdictions have been scant and the International Criminal Court is still in its infancy. Domestic jurisdictions, which, according to the principle will bear the main burden for adjudicating international crimes, have not of c~mplementarity,~ been too active on the enforcement side (Ratner and Abrams, 2001, pp. 160 ff), mostly due to the carelessness of national legislators in failing to provide them with the necessary enabling legislation to apply international criminal law standards. Rather than focusing on well-known doctrines, the choice of materials as regards individual responsibility is directed towards considering the expansion of international criminal law: in particular, the punishment of nonstate actors for international crimes in non-international armed conflicts and the ancillary issue of the prosecution, by the ad hoc criminal tribunals, of acts of torture committed by nonstate actor^.^ This is clarified in William Schabas' essay on 'Punishment of Non-State Actors in Non-International Armed Conflict' (Chapter 15) and Jill Marshall's essay on 'Torture Committed by Non-State Actors: The Developing Jurisprudence from the Ad Hoc Tribunals' (Chapter 16). Indeed, these developments seem to lend support to the theories that consider that the scope of application of certain international law norms must not be predetermined on the basis of any abstract notion of legal personality, but must be geared towards the realization of the norm's underlying values, particularly as they relate to human rights or humanitarian concerns. Entirely different considerations apply to the accountability of transnational corporations. The most impressive account of a theory of the legal responsibility of corporations for human rights abuses is Steven Ratner's book-length Yale Law Journal essay (2001-2002). Ratner develops an international law-based theory of corporate responsibility, whereby international obligations can be deemed to address corporate entities insofar as the latter cooperate with states and commit violations of the human dignity 'of those with whom they have special ties' (ibid., p. 449). An array of tools for the implementation of the theory is also put forward, ranging from corporate-initiated codes of conduct, NGO scrutiny and national legal regimes to soft international law and treaties. The merit of Ratner's theory lies in its comprehensive character and in its foundation in international law rather than the domestic law of any particular state. Given that a large part of domestic litigation involving the human rights abuses of corporate entities has taken place in the US on the basis of the Alien Tort Claims Act and that most of the literature relies on this strand of domestic case law to account for the responsibility of corporate entities (Joseph, 2004), such a wider focus is indeed welcome. Article 17 of the International Criminal Court Statute provides for the inadmissibility of cases that are being investigated or prosecuted by a state that has jurisdiction over them, unless that state is unwilling or unable genuinely to carry out the investigation or the prosecution, thus creating a primacy of national jurisdictions over the ICC. On the role of the ICC in ensuring punishment of individual non-state actors, see Zellweger and Koller (2007).
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Furthermore, Ratner (200 1-2002, p. 545) emphasizes the importance of other elements, not necessarily of a legal character, which may prompt the accountability of corporate entities. Corporate social responsibility as well as market incentives to comply with international standards in certain areas may well provide additional tools for a comprehensive system of corporate accountability. In an essay on state responsibility for extraterritorial violations of human rights by corporations (Chapter 17), Robert McCorquodale and Penelope Simons advocate another
approach to the issue of corporate responsibility for human rights abuses, namely an expansive reading and use of the rules on state responsibility. By focusing on the applicability of human rights obligations incumbent on the home state to the extraterritorial acts of the national corporate entity, the authors apply the relevant rules of state responsibility to the conduct of home states with a view to holding them accountable for the acts of their corporate entities.I0 This approach has the merit of fostering solutions that are clearly available within the system - the rules on state responsibility - and provide states with an incentive to act diligently if they want to avoid international responsibility. To argue that states should be responsible for the acts of national corporate entities abroad makes sense, particularly as one realizes that home states attempt to impose their laws and regulations on foreign subsidiaries of corporate nationals in a number of areas, ranging from export controls to antitrust regulation. The argument that the same states should be accountable for the acts of the same entities when these violate human rights standards could reasonably follow. Criteria of attribution for the purpose of state responsibility, such as the exercise of elements of governmental authority or the direction or control by the state of the relevant activities, could well provide adequate tools for the implementation of such normative strategy. Two considerations, however, might stand in the way. The first is the acknowledgment that states do not seem inclined to accept such an expansive reading of their obligations under international law, and international practice does not seem to develop in that direction. The second remark stems from an assessment of the judicial policy of the International Court of Justice on matters of attribution. It will be recalled that in one of the few instances of conflicting jurisprudence among international jurisdictions, the ICJ made use of the criterion of 'effective control' to attribute the conduct of groups of individuals to a state," whereas the Appeals Chamber of the International Tribunal on Former Yugoslavia (ICTY) later adopted ' ~ the recent Genocide case,I3 the ICJ has a much softer criterion, that of 'overall c o n t r ~ l ' . In reiterated its previous jurisprudence and made clear, not without some institutional acrimony,I4 that general international law requires 'effective control' for conduct carried out by an In
For an earlier approach along similar lines, see Fatouros (1983). More generally, on the applicability of the rules of state responsibility to the conduct of individuals or groups of individuals, see Roucounas (2005) and Wolfrum (2005). See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States ofAmerica), ICJ Reports 1986, pp. 6445, para. 115. l2 See Prosecutor v. Dusko TadiE, ICTY, N0IT-94-1-A, Appeals Chamber, 15 July 1999, paras 11545. See Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime ofCenocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Reports 2007, paras 396407. IJ Ibid., para. 403.
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individual or a group of individuals to be attributed to a state. Besides the institutional aspects of the dispute between the two tribunals, it is reasonable to speculate that the ICJ, whose selfperception as the guardian of the international legal system is traditionally strong, when opting for the much more stringent criterion of 'effective control', must have had in mind not only the circumstances of the case, but also the potential application of the criterion to other areas, including state responsibility for terrorist acts and state responsibility for the extraterritorial acts of corporate entities. The discussion boils down to determining whether, for the purpose of assuring the accountability of non-state actors, to have recourse to traditional mechanisms of state responsibility is a good normative strategy to ensure greater effectiveness. At the very least, this can be doubted. As regards the accountability of NGOs, Erik Bluemel's essay on 'Overcoming NGO Accountability Concerns in International Governance' (Chapter 18) is evidence of how tenuous the border between international law and other social sciences has become. Bluemel's approach is interesting insofar as his work attempts to move the debate about accountability from the actor to the function performed. In so doing, he puts forward a composite theory of NGO accountability in international governance, which does away with many of the traditional dividing lines peculiar to the field of law, such as internationaVdomestic and publiclprivate. To speak in terms of international governance rather than in terms of international legal order may be more an issue of disciplinary allegiance than a real difference of conceptual categories. To dismiss as 'non-law' social practices that constitute the fabric of day-to-day international life and are increasingly perceived by the relevant actors as demanding respect as a matter of law may be an attitude that fosters certain vested professional interests, but it is unlikely to advance the cause of international law and enhance its credibility (Krisch and Kingsbury, 2006). In this respect, interdisciplinary dialogue may well produce interesting outcomes and, for once, may be instrumental in providing a better understanding of societal dynamics. Conclusions
There is no definitive answer to the query posed in the title of this introduction. Whether the solution lies in relativizing the subjects or, rather, in subjectivizing the actors remains open to doubt. The constant swing of the pendulum from the normative to the descriptive mesmerizes the observer and makes him wonder whether the observed reality can provide the answers he is looking for. Ultimately, this will depend on the kind of questions that are asked. A draconian way to look at things would be to maintain that the very title of this edited volume is somewhat of an oxymoron. International law as a normative and political project is indissolubly linked to states, and non-state entities may not legitimately lay claim to forming part of the system. Such a drastic way of thinking would have the merit of reducing the complexity of the debate, although it would probably lead to a greater marginalization of international law. On the other hand, if we acknowledge that international law has changed dramatically in the past few decades, the need to reformulate some of its foundational tenets seems an obvious solution. The contemporary international community, which provides the terrain in which the game of international law is played, is no longer perceived as consisting solely of states and, inevitably, the inclusion/exclusion mode with which the traditional theory of subjects has been set and used in a restrictive fashion to preserve the integrity of the system needs to be reconsidered. An alternative conceptual framework has not been created and the
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language of other disciplines has been borrowed to provide a temporary accommodation. That the participants need 'legitimacy' and must be made 'accountable' is an expression that would mean little to many positivist lawyers and yet seems to have become part and parcel of the fabric of international law. International law, however, remains a 'pragmatic project', which tends to accommodate societal and normative developments in a pragmatic fashion. The functional purpose of qualifying certain entities participating in international law processes as subjects or actors may not make such a big difference in practice. Transnational corporations are unlikely to be the addressees of the rules of maritime delimitation but they might be called upon to respect certain fundamental international human rights norms. NGOs are not going to be recognized as having any formal treaty-making power, and yet they will continue to play an important role in international law-making. However, as Alston rightly noted, the 'negative and euphemistic term' of non-state actors may not 'stem from any language inadequacies' but may have been adopted 'to reinforce the assumption that the state is not only the central actor, but also the indispensable and pivotal one around which all other entities revolve' (2005, p. 3). In fact, the disjunction between theory and practice and the strain between the different ways of looking at the same reality are a symptom of a more general disease affecting international law. The 'politics of forms' has long exhausted its ordering function and has been supplanted by a panoply of other narratives which tell different stories about the same reality. The challenge is to inquire afresh about the 'Subject', not so much in the narrow context of this edited volume, but in the much broader framework of inquiry of 'who or what it is that thinks or produces law' (Schlag, 1991, p. 1629; Caudill, 1993, p. 7 10). Until a satisfactory account of the 'Subject' is given, to reason in terms of 'subjects', 'actors', 'participants' or whatever else will be either a matter of preference or a struggle for power to legitimize or exclude some of the players. What needs to be understood, however, is the game. References
Allott, Philip (1990), Eunomia: New Order for a New World, Oxford: Oxford University Press. Alston, Philip (2005), 'The "Not-a-Cat" Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?', in Philip Alston (ed.), Non-State Actors and Human Rights, Oxford: Oxford University Press, pp. 3-36. Arangio-Ruiz, Gaetano (1996), 'On the Nature of the International Personality of the Holy See', Revue belge de droit international, 29, pp. 35449. Arend, Anthony C. (1998), 'Do Legal Rules Matter? International Law and International Politics', VirginiaJournal of International Law, 38, pp. 107-53. Bianchi,Andrea (2008), 'Human Rights and the Magic of Jus Cogens', European Journal oflnternational Law, 19, pp. 491-508. Bourdieu, Pierre (1981), 'The Specificity of the Scientific Field and the Social Conditions of the Progress of Reason', in Charles C. Lemert (ed.), French Sociology: Rupture and Renewal Since 1968, New York: Columbia University Press, pp. 257-92. Breen, Claire (2003), 'The Role of NGOs in the Formulation of and Compliance with the Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict', Human Rights Quarterly, 25, pp. 453-81.
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Breen, Claire (2005), 'Rationalising the Work of UN Human Rights Bodies or Reducing the Input of NGOs? The Changing Role of Human Rights NGOs at the United Nations', Non-State Actors and International Law, 5, pp. 101-26. Buchanan, Allen E. (2007), Justice, Legitimacy, and Self-determination: Moral Foundations for International Law, Oxford: Oxford University Press. Caudill, David S. (1993), 'Pierre Schlag's "The Problem of the Subject": Law's Need for an Analyst'. Cardozo Law Review, 15, pp. 707-32. Charnovitz, Steve (1996-97), 'Two Centuries of Participation: NGOs and International Governance'. Michigan Journal of International Law, 18, pp. 183-286. Cheng, Bin (1991), 'Introduction to Subjects of International Law', in M. Bedjaoui (ed.), International Law: Achievements and Prospects, Paris and Dordrecht: UNESCO and Martinus Nijhoff, pp. 2 3 4 0 . Clapham, Andrew (2006a), 'Human Rights Obligations of Non-State Actors in Conflict Situations', International Review of the Red Cross, 88, pp. 491-523. Clapham, Andrew (2006b), Human Rights Obligations of Non-State Actors, Oxford: Oxford University Press. Dupuy, Pierre-Marie (2003), 'Comments on Chapters 4 and 5', in Michael Byers and George Nolte (eds), United States Hegemony and the Foundations of International Law, Cambridge: Cambridge University Press, pp. 176-96. Dupuy, Pierre-Marie (2005), 'Proliferation ofActors: Comment', in Riidiger Wolfrum and Volker Roben (eds), Developments of International Law in Treaty Making, Berlin: Springer, pp. 53742. Epiney, Astrid (2006), 'The Role of NGOs in the Process of Ensuring Compliance with MEAs', in Ulrich Beyerlin, Peter-Tobias Stoll and Riidiger Wolfrum (eds), Ensuring Compliance with Multilateral Environmental Agreements: A Dialogue between Practitioners and Academia, Leiden and Boston: Martinus Nijhoff, pp. 319-52. Fatouros, Arghyrios A. (1983), 'Transnational Enterprise in the Law of State Responsibility', in Richard B. Lillich (ed.), International Law of State Responsibility for Injuries to Aliens, Charlottesville: University of Virginia Press, pp. 371403. Franck, Thomas M. (1990), The Power of Legitimacy among Nations, New York: Oxford University Press. Franck, Thomas M. (1999), The Empowered SeK Law and Society in the Age of Individualism, New York: Oxford University Press. Hart, Herbert L.A. (1961), The Concept of Law, Oxford: Clarendon Press. Higgins, Rosalyn (1994), Problems and Process: International Law and How We Use It, Oxford: Clarendon Press. Jennings, Robert Y. (1998), 'The Judiciary, International and National, and the Development of International Law', in Collected Writings of Sir Robert Jennings, The Hague: Kluwer, vol. 11, pp. 796-812. Joseph, Sarah (2004), Corporations and Transnational Human Rights Litigation, Oxford and Portland, OR: Hart. Kamminga, Menno T. (2005), 'The Evolving Status of NGOs under International Law: A Threat to the Inter-State System?', in Philip Alston (ed.), Non-State Actors and Human Rights, Oxford: Oxford University Press, pp. 93-1 11. Kolb, Robert (2007), review of Janne Nijman, The Concept of International Legal Personality: An Inquiry into the History and Theory of International Law, in European Journal of International Law, 18, pp. 775-76. Korkeakivi, Antti (1993), 'People's Rights -An Overview', Finnish Yearbook of International Law, vol. IV, pp. 281-325. Koskenniemi, Martti (2007), 'The Fate of Public International Law: Between Technique and Politics', Modern Law Review, 70, pp. 1-30.
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Krisch, Nico and Kingsbury, Benedict (2006), 'Introduction: Global Governance and Global Administrative Law in the lnternational Legal Order', European Journal oflnternational Law, 17, pp. 1 3 4 5 . McCorquodale, Robert (2004), 'An Inclusive Legal System', Leiden Journal oflnternational Law, 17, pp. 477-504. McCorquodale, Robert (2006), 'Beyond State Sovereignty: The International Legal System and NonState participants'. Revista colomhiana de derecho internacional, 8, pp. 103-59. Martens, Kerstin (2003), 'Examining the (Non-)Status of NGOs in International Law', Indiana Journal ofGloba1 Studies, 10, pp. 1-24. Masciulli, Joseph (2006), review of Janne Nijman, The Concept of lnternational Legal Personality: An Inquiry into the History and Theory of lnternational Law, in Law & Politics Book Review, 16, pp. 34245. Mertus, Julie (1999-2000), 'Considering Non-State Actors in the New Millennium: Toward Expanded Participation in Norm Generation and Norm Application', New York University Journal of lnternational Law and Politics, 32, pp. 5 3 7 4 6 . Nijman, Janne E. (2004), The Concept oflnternational Legal Personality: An Inquiry into the History and Theory of lnternational Law, The Hague: T.M.C. Asser Press. Nowrot, Karsten (2005), 'New Approaches to the International Legal Personality of Multinational Corporations: Towards a Rebuttable Presumption of Normative Responsibility', Paper delivered at the 2005 Geneva Research Forum on International Law, organized by the European Society of pp. 1-26). lnternational Law (published online at http:/lwww.esil-sedi.eu/english/pdflNowrot.PDF Orrego-Vicuiia, Francisco (2001 ), 'Individuals and Non-State Entities before lnternational Courts and Tribunals', Max Planck Yearbook of United Nations Law, 5, pp. 5 3 4 6 . Perry, Stephen R. (1995), 'Interpretation and Methodology in Legal Theory', in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy, Oxford: Clarendon Press, pp. 97-135. Prescott, Elizabeth M. (2007), 'UNSCR 1540 and the Scientific Community as a Non-State Actor', in Olivia Bosch and Peter Van Ham (eds), Global Non-Proliferation and Counter-Terrorism: The Impact of UNSCR 1540, The Hague: Clingendael Institute, pp. 41-53. Ratner, Steven R. (2001-2002), 'Corporations and Human Rights: A Theory of Legal Responsibility', Yale Law Journal. 111, pp. 443-545. Ratner, Steven R. and Abrams, Jason S. (2001), Accountability for Human Rights Atrocities in International Law (2nd edn), Oxford: Oxford University Press. Roben, Volker (2005), 'Proliferation of Actors', in Riidiger Wolfrum and Volker Roben (eds), Developments of lnternational Law in Treaty Making, Berlin: Springer, pp. 51G36. Roucounas, Emmanuel (2005), 'Non-State Actors: Areas of International Responsibility in Need of Further Exploration', in Maurizio Ragazzi (ed.), International Responsibility Today: Essays in Memory ofOscar Schachter, Leiden and Boston: Martinus Nijhoff, pp. 391404. Schlag, Pierre (1991), 'The Problem of the Subject', Texas Law Review, 69, pp. 1627-1743. Shelton, Dinah (1994), 'The Participation of Nongovernmental Organizations in International Judicial Proceedings', American Journal of International Law, 88, pp. 61 1-42, Stern, Brigitte (2006), 'The Emergence of Non-State Actors in International Commercial Disputes Through WTO Appellate Body Case-Law', in Giorgio Sacerdoti, Alan Yanovich and Jan Bohanes (eds), The WTO at Ten: The Contribution ofthe Dispute Settlement System, Cambridge: Cambridge University Press, pp. 372-85. Tomuschat, Christian (1986), 'Rights of Peoples: Some Preliminary Observations', in Yvo Hangartner and Stefan Trechsel (eds), Volkerrecht im Dienste des Menschen, Bern and Stuttgart: Verlag Paul Haupt, pp. 337-54. Vazquez, Carlos M. (2004-2005), 'Direct vs. Indirect Obligations of Corporations under International Law', Columbia Journal of Transnational Law, 43, pp. 927-59.
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Watts, Arthur (2001), 'Enhancing the Effectiveness of Procedures of International Dispute Settlement', Max Planck Yearbook of United Nations Law, 5, pp. 21-39. Weil, Prosper (1992), 'Le droit international en qu&tede son identitC: cours gCnCral de droit international public', Recueil des cours, 237N1, pp. 9-370. Wolfmm, Rudiger (2005), 'State Responsibility for Private Actors: An Old Problem of Renewed Relevance', in Maurizio Ragazzi (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter, Leiden and Boston: Martinus Nijhoff, pp. 423-34. Zellweger, Valentin and Koller, David (2007), 'Non-State Actors, International Criminal Law and the Role of the International Criminal Court', in Stephen Breitenmoser, Bernhard Ehrenzeller and Marco Sassoli (eds), Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber, Ziirich: Dike, pp. 1619-34.
Part I Non-state Actors in the Theory of International Law
T H E SUBJECTS OF I N T E R N A T I O N A L LAW Hersch Lauterpacht
47. The dejnition of subjects of international law As in any other legal system, so also in the international sphere the subjects of law are the persons, national and juridical, upon whom the law confers rights and imposes duties. I n international law these persons are normally States; but they are not so exclusively. Organizations of States, having a different juridical personality from the States composing them, may and have become subjects of international law. This is hardly startling seeing that it is difficult to deny to States acting in association the unchallenged legal personality which they possess when acting in isolation. Individuals possess in a limited sphere international legal personality, not always accompanied by corresponding procedural capacity, accorded to them expressly or by implication. For these reasons the relevant part of the definition of international law given above1 speaks of international law as a body of rules 'which confer rights and impose obligations primarily, though not exclusively, upon sovereign States'. However, the view that entities other than States can be subjects of international law has been denied by many; and although opposition to it has receded under the impact of modern developments it cannot, as yet, be said that it has been generally accepted. Its effects linger, in some ways, in existing international law.
48. The traditional view According to what may be described as the traditional view in the matter, States only and exclusively are the subjects of international law. In particular, on that view, individuals are not the subjects of international law; they are its objects in the sense that by customary and conventional law States may be bound to observe certain rules of conduct in relation to individuals. Thus, while they may be bound to accord privileged treatment to foreign diplomatic representatives, the latter are not on that account subjects of international law; the right to privileged treatment is the right of their own State. See above, p. 9.
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Similarly, although aliens residing in the territory of a foreign State are entitled to be treated by it in conformity with rules of international law, according to the traditional view the resulting rights are not the rights of the alien but of his State.1 Although in concessionary or similar contracts made with a foreign State the individual alien may agree not to have recourse to protection by his own State until he has exhausted the local remedies available to him, he cannot effectively renounce the protection of his own State if the rights recognized for his benefit by international law have been violated; for these are not his rights but those of his State. Further, it would seem to follow from the view stated above that a treaty cannot directly confer rights upon individuals and, generally, that international law cannot do so unless these rights are incorporated as part of municipal law. The rigid exclusion of bodies other than States and of individuals from exercising any procedural capacity before international tribunals would appear to be yet another consequence of the traditional doctrine. As will be shown in this chapter, there are other equally far-reaching consequences of that view as here outlined. In its main aspects the doctrine stated above gives an accurate picture of the existing position in international law. However, it is important to qualify it; to note the numerous exceptions to its operation; and, above all, to bear in mind that the range of subjects of international law is not rigidly and immutably circumscribed by any definition of the nature of international law but is capable of modification and development in accordance with the will of States and the requirements of international intercourse. These propositions will now be considered in relation: ( a ) to collective bodies other than States; (b) to individuals.
49. Collectiue bodies other than States International practice has recognized that bodies other than States may on occasions be endowed by international law with rights and made subject to its duties. This may occur, for instance, in the case of persons engaged in hostilities against their lawful Government For a n authoritative statement of this principle see the following passage of the Judgment of the Permanent Court of International Justice in the case of the Serbian Loam: 'reference should be made to what the Court has said on several occasions, and in particular in Judgments No. 2 and 13, namely, that by taking up a case on behalf of its nationals before an international tribunal, a State is asserting its own right-that is to say, its right to ensure, in the person of its subjects, respect for the rules of international (ibid. no. 1 7, law' (Series A, nos. 20121, p. I 7). See also the Chorrdw Factory cme (Merits) P P 27, 28).
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and recognized as belligerents by other States. Such belligerents, without having been recognized as a State, become entitled to exercise as against neutrals certain rights of war. They also become subject to the obligations of the law of war. The same, on a more limited scale, applies to persons recognized as insurgents, In a different sphere, political units not as yet endowed with full statehood have been treated as subjects of international law. This was the case of the Holy See between its extinction as a State in 1870 and the restoration of its temporal sovereignty in the Lateran Treaty of 1929 in the international sphere. I n the intervening period the Holy See, although not a State in international law, concluded treaties and sent and received diplomatic representatives-it was a subject of international law. The British Dominions, prior to their achieving full statehood in the sphere of international relations, acted and were treated for various purposes-for instance, in the matter of conclusion of treaties and diplomatic intercourse--as fully sovereign States. Moreover, it is now generally recognized, in a variety of treaties and otherwise, that international public bodies composed of States possess an international personality and as such are subjects of international law. This applies, in particular, to the so-called specialized agencies of the United Nations such as the International Labour Organisation, the International Civil Aviation Organization, the Food and Agriculture Organization, the United Nations Educational and Cultural Organization, and others. The constitutions of these bodies provide for a measure of separate personality in respect of each of them. Thus the constitution of the Food and Agriculture Organization lays down that 'the Organization shall have the capacity of a legal person to perform any legal act appropriate to its purpose which is not beyond the powers granted to it by this Constit~tion'.~ The Treaty of 1952 constituting the European Coal and Steel Community provides not only generally that the Community shall have juridical personality but also specifically that in its international relationships the Community shall enjoy the juridical capacity necessary for the exercise of its functions and the attainment of its ends.2 The capacity of public international organizations to conclude treaties is recognized in their constitutions Article xv(1) of the Constitution. The constitutions of other specialized agencies and other international organizations confine themselves to laying down that the organization shall enjoy in the temtory of each of its members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its objectives. a Article 6 of the Treaty: AJ. 46 (rg52), Suppl. p. 109.
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and frequently acted upon in practice. They have concluded agreements with one another, with the United Nations, and with individual States, and these have been registered like 'every treaty and every international agreement' under Article 102 of the Charter. Thus, for instance, the International Labour Organisation concluded, in 1946, an agreement with Switzerland concerning the priviIeges and immunities of the Organisation in that c0untry.l The Treaty of 1957 establishing the European Atomic Energy Community provides expressly that, within the limits of the powers conferred upon it, the Community may enter into agreements or conventions with an outside State or an international organization.2 The specialized agencies possess a degree of procedural capacity before the International Court of Justice as a result of having been granted, in Article 96 of the Charter of the United Nations, the right to ask, subject to authorization by the General Assembly, for an Advisory Opinion of the Court. That authorization has invariably been granted in general terms3 and has been used.4 Previously the international personality of public international organizations had been recognized in various ways by decisions of various court^.^ The international personality of numerous other bodies-such as the Reparation Commis~ion,~ the international river commissions or the Cape Spartel Lighthouse Commission7-has often been asserted, probably with justificati~n.~ U.N.T.S. 15, 378. Article I O I of the Treaty: A.3. 51 (1957)~ Suppl. p. 984. For details see Lauterpacht, International Law and Human Rights (1950)~p. 16. See also the same in Grotiw Society, 32 (1g46), 1-41. 4 See Advisory Opinion of 23 October 1956, in the case of the Judgments of the .4dministmtiue Tribunal of the International Labour Organization upon Complaints made against UNESCO (I.C.J. Reports 1956, p. 77). In 1931 the Italian Court of Cassation held in the case of International Institute of Agriculture v. Profili (Annual Digest, 5 (1g29-30), Case no. 254) that the International Institute of Agriculture was an 'international person . . free . . . from interference by the sovereign power of the States composing the Union [i.e., the Institute of Agriculture] '. The Court overruled the Court of Appeal of Rome which had held that the Institute was not a subject of international law seeing that it did not exercise sovereignty over a fixed territory and a population. See also Godman v. Winterton, decided in 1940 by the English Court of Appeal (Annual Digest, I I (1g19-42), Case no. I I I), where it was held that the members of the Intergovernmental Committee for Refugees were entitled to jurisdictional immunity seeing that it was a Committee of sovereign States-a line of reasoning which may be regarded as in accordance with the view, suggested in the text above, that the international personality of public international bodies and their quality as subjects of international rights and duties follows from the fact that they are associations of States of which each is a subject of law. See also International Refugee Organisation v. Republic S.S. Corp. decided by the United States Court of Appeals (Z.L.R. 18 ( r g g ~ ) , Case no. 140). See Fischer Williams in B.2: 13 (1g32), 33-5, and in A.3. 24 (1930), 665. 7 For a bibliography on the international personality of these bodies see Jenks in B.1: 22 (1945)~ 267 n. I . See also Morelli in Hague Renreil, 89 (1956) (i), 557-84, and in 3
.
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The question of the position of the League of Nations as a subject of international law was widely discussed but never judicially determined. On the other hand, in the Advisory Opinion in the case concerning Reparation for Injuries Sufeered in the Service of the United Nations the International Court of Justice rejected the view that only States can be subjects of international law and affirmed the international personality of the United Nations as being indispensable to the fulfilment of the purposes for which it was created. The Court pointed out, with regard to the more general question of subjects of international law, that 'throughout its history, the development of international law has been influenced by the requirements of international life' and that 'the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States'.l 'Such new subjects of international law', the Court explained, 'need not necessarily be States or possess the rights and obligations of statehood.' For 'the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community'.2 As already stated, the question of the international legal personality Rivista, 40 (1957), 3-25; Zemanek in 0.2.o.R. 7 (1956), 335-72. AS to the contractual capacity of international unions see Capotorti in Comunicazioni e Studi, 7 (1g55), 145-98. From public international organizations-which are organizations composed of States-there must be distinguished international organizations of individuals and private associations, of which there is a very considerable number. A French tribunal has held that a Committee of debenture holders of the Danube-Adriatic Railway Company, a Committee empowered by the Treaty of Trianon of 1919 to represent the interests of the holders, was 'necessarily and validly endowed. . with legal personality in international law' which enabled it to sue in French courts: see Vigoureux v. Comiti des Obligataires Danube-Save-Adriatique (I.L.R. 18 (1951),Case no. I ) . On the consultative status of private international organizations by virtue of Article 71 of the Charter authorizing the Economic and Social Council to make 'suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence' as well as by virtue of the constitutions of the various specialized agencies see Lauterpacht, International Law and Human Rights (1950), pp. 23-6. Also, as to the access of non-governmental organizations to the Headquarters of the United Nations for 434-50. consultative purposes, see Liang in A.3 . 48 (1954)~ I.C.J. Reports 1949, p. 174. a Ibid. a t p. 178. As international personality is not limited to States, the latter are bound to fulfil international duties-i.e. duties prescribed by general international law -not only in relation to other States but, in proper cases, to international persons generally. This explains why in the Reparation for Injuries case the International Court of Justice held that the United Nations was entitled to bring a claim even against a nonmember State, although in the same case the Court held that the basis of the claim by the United Nations was a breach of a duty to it. For, once the Court found that the United Nations was endowed by the Charter with international personality not only in relation to its Members but erga omnes (ibid. at p. 185), it followed that all States-whether Members of the United Nations or not-owed it duties as prescribed by general international law. Sed quaere. See Fitzmaurice in B. Y.29 ( Ig52), 2 1.
.
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of an association of States each of which is indisputably a subject of international law ought not to give rise to difficulty. However, that Advisory Opinion must be regarded as one of the most important pronouncements of the Court inasmuch as it provided a much-needed qualification of the doctrine that only sovereign States are the subjects of international law. I t may also be noted that international practice recognizes in the contractual field a measure of international personality of territorial units, such as colonies and dependencies, which are not States but which nevertheless are admitted to participation in their own name in public organizations of States such as the Universal Postal Union or the World Health Organization. 50. The individual as a subject of international law As a matter of moral principle, individuals have no independent position in international law and any rights which they may possess and any duties to which they may be subject in consequence of international law are rights and duties prescribed by the municipal law of the State. However, that principle is not absolute, and it is necessary to bear in mind the numerous exceptions which the practice of States has already engrafted upon it. These exceptions cover both rights and duties created by international custom and treaty. With regard to duties, the most important example of direct subjection of individuals to international law is the operation of the law of war. It is an established principle that individual members of the armed forces of a belligerent are bound as such by the law of war and that the belligerent into whose hands they may fall is entitled to punish them for violations of that law-even if, at least in the case of ruthless and inhuman crimes against the law of war, they acted in obedience to superior orders. It was by reference mainly to violations of the law of war that the International Tribunal for the Trial of Major War Criminals rejected, in 1946, the view that, as States only are subjects of international Iaw, there could be no individual responsibility for the violation of the laws of war. I t is often contended, without apparent exaggeration, that piracy jure gentium is no mere formula and that it constitutes a direct imposition upon individuals of the duty, under international law, not to commit piracy-although there is room for the view that States exercise jurisdiction over aliens in the matter of piracy by virtue of a customary rule according to which States concede to each other the right to exercise jurisdiction over their subjects for the com-
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mission of piracy rendered criminal by municipal law. Moreover, the municipal law of many States penalizes in other spheres what are termed violations of the law of nations, for instance, offences against foreign diplomatic representatives. In an early case, Respublica v. De Longchamps, decided in 1784 by a Pennsylvania Court, the accused-who had insulted the French ambassador-was found guilty of a 'violation of the law of nations'.= I n a distinct sense, in countries in which international law is, by legislation or ~therwise,~ incorporated as part of the law of the land, it may be considered that the duties-as well as rights--of international law are directly operative in relation to individuals; this is so although such direct effect of international law is due to a general act of incorporation. The constitutions of some countries provide expressly that international law directly creates rights and duties for the inhabitants of the State.3 Moreover, treaties may impose duties directly upon individuals. This is probably the effect of the Convention of 1948 for the Prevention and Punishment of the Crime of Genocide. Similarly, both customary and conventional international law may confer rights directly upon individuals. I n the Advisory Opinion concerning the Jurisdiction of the Courts of Danzig, the Permanent Court held that although in principle a treaty cannot, as such, create direct rights and obligations for private individuals, 'the very object of a n international agreement, according to the intention of the contracting parties, may be the adoption by the parties of some definite rules creating individual rights and obligations and enforceable by national c o ~ r t s ' .The ~ Court rejected the view that as the provisions of a treaty adopted in favour of Danzig railway officials had not been incorporated in Polish law, those officials had no enforceable right of action. As will be indicated presently, the contracting States may agree to create in favour of individuals rights enforceable directly not only before national but also before international tribunals. T o the extent to which the Charter of the United Nations established the legal obligation of its members to respect human rights and fundamental freedoms (though there are See below, p. 154. I Dallas Reports I I I . See, e.g., Article 25 of the Constitution of the Federal Republic of Germany of 1949. Series B, no. 15, p. 17. In the Advisory Opinion, given in 1950, on the International Status of South- West Africa, the International Court ofJustice assumed, without elaborating the point, that as the result of certain resolutions adopted in 1923 by the Council of the League of Nations in the matter of petitions from the inhabitants of mandated territories, these inhabitants acquired a corresponding right-a right under international law -and that right was subsequently maintained by Article 80 of the Charter of the United Nations: 1.C.j. Reports 1950, p. 133.
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many who deny the provisions in question the character of a legal obligation), it conferred upon individuals a corresponding right not dependent for its international validity upon national legislation, and even though unaccompanied by effective provisions for its enforcement. To that extent the Charter constituted the individual a subject of international law. Similarly, though more indirectly, this is also the effect, in one important respect, of the Agreement of 8 August 1945 between the four Principal Powers establishing an International Military Tribunal for the Punishment of the Major War Criminals. That Agreement provided, inter alia, for the punishment of crimes against-humanity. These were acts deemed to be violative of the sanctity of human personality to such a degree as to make it irrelevant whether or not they were committed in obedience to the law of the State. The inclusion of crimes against humanity in an international instrument reflected the acknowledgement of fundamental human rights of the individual recognized by international law and grounded in considerations superior to the law of the State. To that extent, again, the instrument in question recognized the individual as a subject of a fundamental international right.l 51. The procedural capacity of individuals in the international sphere The significance of the status of individuals as direct beneficiaries of rights conferred by treaty or customary international law-and, in consequence thereof, as subjects of international law-has been somewhat obscured by the fact that, in the present state of the law, their procedural capacity is severely limited. I n particular, apart from exceptional cases they have no right to appear as parties before international tribunals. Article 34 of the Statute of the International Court, the drafting of which was influenced by the predominant view of the exclusiveness of States as subjects of international law, lays down expressly that 'Only States may be parties in cases before the CourtY.2Various treaties providing for the settlement of claims arising out of injuries to individuals clearly provide that the claims shall be presented by Governments; that agents and counsel shall be appointed by government^;^ and that 1 See Lauterpacht, Zntrmatwnal L a w and Human Rights (1950)~ pp. 35-8, and Schwelb in B.Y.23 (1946), 17&226. See Oppenheim, 11, 54. And see, as to the position of individuals in connection with the advisory jurisdiction of the Court, Gross in 4.3.52 (rg58), 16-40. 8 See, e.g., the provisions of the Treaty of 8 September 1923 between the United States of America and Mexico, setting up a General Claims Commission. For the text of the Convention see Feller, The Mexican C l a i m Commission, 1923-1934 (1935), p. 321. And see ibid. pp. 83-90, for an account of the position of the individual claimants before the Commission.
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the latter shall retain decisive control over the claim and its prosec~tion.~ However, although this is, in general, the existing legal position, some qualifying considerations must be kept in mind. I n the first instance, a person or organization may be a subject of international law-i.e. directly endowed by international law with rights and charged with duties-without at the same time enjoying full procedural capacity by way of being able to claim before international tribunals and agencies any rights thus granted. Thus if the Charter of the United Nations were to impose unequivocally upon its Members the legal obligation to respect human rights and fundamental freedoms,$ and if the faculty to invoke these obligations were confined to the United Nations as such or its Member States, without conferring upon the individual an independent status before the organs of the United Nations for that purpose, the individual could still properly be considered a subject of international law in that sphere. I n the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, provision was made not only for securing human rights as there defined but also for the implementation of those provisions by the action both of the signatory States and, as soon as a requisite number of States have agreed thereto, by private individuals themselves. The resulting rights are vested in the individual inhabitants of the States concerned, independently of whether they have been made part of the law of the signatory States. Individuals are subjects of the rights in question by virtue of the provisions of the Convention even before their right to petition the Commission has been recognized. There are treaties which contain clauses providing For an emphatic instance of the affirmation of the full control of the State over 2: F. Assets Realization Corporaclaims adjudicated before an international tribunal see tion et Al. v. Hull, Secretary of State, et Al. (Annual Digest, lo (1941-2), Case no. I 34). See, however, for some qualifications of this rule American-Mexican Claim Bureau v. Morgenthau (ibid. g (1938-40), Case no. 106);Adminirtratiue Debion No. I in the Tripartite Claims Commission, 1927 (ibid. 4 (1gr7-8), Case no. 172); William A. Parker case, decided by the Mexican-United States General Claims Commission (ibid. 3 (1925-6), Case no. 178) and, by the same Commission, the North American Dredging Company case (ibid. Case no. 179). On the other hand, as laying down the principle that in concluding treaties the Crown d o e not act as trustee of the subject and that therefore the latter has no legal right to any compensation provided for in a treaty, see Ciuilian War Claimants' Association Ltd. v. The King [ ~ g p A.C. ] 14; 46 T.L.R. 581; 47 T.L.R. 102; Administrator of German Property v. Knoop [1g33] Ch. 439; Gschwind v. Swiss Confeederation, decided by the Swiss Federal Court in 1932 (Annual Digest,6 ( I93 I-2), Case no. I 20) ; Receiver in Bankruptcy of the N. V. ' <eilschip Nest' v. The State of the Netherlands, decided by the Hague Court of Appeal on 14January 1937 (ibid. 8 (1935-7), Case no. I 17). And see B.2: 13 (1g32), 163, 164. As stated above, p. 142, it is controversial whether the provisions of the Charter in the matter amount to a clear legal obligation on the part of the Members of the United Nations.
<.
I44
I1
12
Non-State Actors and International Law
SUBJECTS OF I N T E R N A T I O N A L LAW
for the treatment of individuals who possess no nationality and whose rights cannot therefore be protected by a State of which they are nationals; those rights can only be protected by the various States signatories of the treaty. The Minorities Treaties as well as the treaty provisions in the matter of mandated and trust territories make it possible for the parties thereto to invoke the jurisdiction of the International Court concerning the interpretation and application of these provisions with regard to the interests both of their nationals and of persons who are not their nationals. The rule as to the 'nationality of claims' cannot be invoked in cases such as these. The treaties in question offer examples of rights which are created by international law and whose international existence-and the attribution to the individual of the quality of a subject of international law resulting from them-is independent either of any incorporation of such rights into the municipal law of any State or of the formal procedural capacity of individuals to assert the rights in question in their own name. Secondly, there are instances in which such procedural capacity has been created, wholly or in part, in favour of individuals. I n the Statute of the proposed-and eventually unratified-International Prize Court adopted at the Second Hague Peace Conference of 1907, private claimants were given the right to appeal to that Court against judgments of national prize c0urts.l I n the Treaty which, in 1907, established the Central American Court of Justice between the five Central American Republics, individuals were given the right of direct access to the C ~ u r t .In ~ the Treaty of Versailles the nationals of the Allied Powers were accorded the right to advance against Germany claims in their own name and, if so desired, without the assistance of agents appointed by their Governments.3 The Upper Silesian Convention of 1922 between See Oppenheim, 11,485. "or an account of the case of D i a r v. Guatemala, brought under that Treaty and involving a claim for false arrest, imprisonment and expulsion, see Hudson, The Permanent Court of Inkrnational Justice, ~ g z o - ~ g(1943), p p. 54. a But see Anzilotti, p. 136, for a different view. See also, generally, as to the Mixed Arbitral Tribunals, Bliihdorn in Hague Recueil, 41 (1932) (iii), I 74-6. And see generally on the access of individuals to international tribunals: Fleury, Un nouueauprogrh & lajurtice inkmationale: L'acch des particuliers aux Tribunaux inkrnationa~m (1932); SchulC, Le droit d'acc2s des particuliers aux juridictiom inkmationales (1934) ; Annuaire, 33 (1927) (ii), 601-26; Rundstein in R.I. 3rd ser. 10 (1929), 431-53; 763-83; Borchard in A.J. 24 (1930), 359-65; TtnCkidts in R.Z. 3rd ser. 13 (1932)~89-1 I r ; Baumgarten, ibid. pp. 742-99; StfQiadts in Hague Recueil, 51 (1935) (i), 5-120; Kaufmann, ibid. 54 (1935) (iv), 420-7; Idelson in Grotiuc Society, 30 (1g44), 5 e 6 6 . As to the access of individuals to international authorities by way of petition see Richard, k droit de pitition (1932); and Feinberg in Hague Recueil, 40 (1932) (ii), 529-640. 1
10
745
LIL
Non-State Actors and International Law INTERNATIONAL LAW-THE
GENERAL PART
Germany and Poland not only established a tribunal open to the nationals of both parties; it also gave it jurisdiction to entertain actions brought by nationals of either party against their own State, notwithstanding the contention of Poland that under international law an individual cannot invoke the aid of an international authority against his own State.l In the same case the Tribunal held that a national of a third State, which was not a party to the treaty in question, could exercise rights enforceable before the Tribunal.= I n fact, apart from the somewhat unreal emanations of the doctrine that only States-as the exclusive subjects of international law-possess procedural capacity in the international sphere, there is no true obstacle to further developments in that direction. Undoubtedly, so long as the principle of obligatory jurisdiction of international tribunals as between States has not been adopted, it would be premature to urge that individuals should be in the position to bring Governments against their will before an international jurisdiction. However, there is no reason why international tribunals should not, with the agreement of Governments, adjudicate with regard to claims advanced by and made against individuals, including those in the sphere of criminal responsibility. International practice contains instances of proceedings of this n a t ~ r eAs . ~ stated, no such power to entertain claims advanced by private bodies or individuals, or even public bodies other than States," is vested in the International Court of Justice; Article 36 of its Statute limits its jurisdiction to disputes between state^.^ There is no intrinsic See Steiner and Gross v. Polish State: Annual Digest, 4 (1927--8),Case no. 188. a
Zbid. Case no. 287.
As to criminal responsibility see above, p. 133. For an example of a special arbitral tribunal created by agreement between a ~overnmentand a private and deciding on the basis not of municipal law but of international law or general principles of law, see above, p. 77. This situation may appear somewhat anomalous in view of the Advisory Opinion given by the Court in 1949in the Reparation for Injuries case, where it held that the United Nations has the capacity for certain purposes to bring a n international claim (see above, p. 140). This means, presumably, a claim before an international tribunal-but not, a t present, before the international tribunal which is the principal judicial organ of the United Nations. A possible line of development in this sphere might consist in enlarging the present scope of Article 36 so as to give the Court jurisdiction not only in disputes between States but also in disputes between States and private or public bodies or private individuals in cases in which States have consented, in advance or by special agreement, to appear as defendants before the Court. An extended jurisdiction of this nature, if invoked with some frequency, might necessitate consequential changes in the Statute or the Rules of the Court, for instance, by enabling the Court to sit in divisions. The existing Statute authorizes the Court to create special chambers. I t will be noted that, in effect, the vast majority of cases decided by the Court have involved claims arising from actual or alleged injuries to private persons.
Non-State Actors and International Law
14
S U B J E C T S OF I N T E R N A T I O N A L LAW
necessity, in the light of the definition presented earlier,l to confine international law-and its adjudicatory agencies-to relations between States. International law can properly be comprehended as regulating the rights and duties of States in the international sphere and, as the result of international custom and agreement, also in relation to entities other than States. It must also be noted that international practice recognizes a distinct measure of procedural capacity of individuals before international organs. That has included, in varying degrees, the right of petition before such bodies as the Mandates Commission, the Minorities Commission, the Trusteeship Council and the European Commission of Human Rights. The quality of a subject of international law-i.e. the capacity of being a subject of rights created or recognized by international law-does not, as already stated, depend upon the capacity to claim or enforce such rights in the beneficiary's own name. Nor does it depend upon whether the persons or body concerned are a contracting party in relation to the instrument creating such rights. It is sufficient if such rights are created in their favour and are effectively vested in them.2 Moreover, although the contractual capacity of individuals in relation to States and with effect in the sphere of international law is not as yet recognized in international practice-with the effect, for instance, that such agreements are not capable of registration as 'international treaties and agreements' under Article 102 of the Charter-it is not certain that they cannot be so recognized at all. International law is not exclusively a law governing the relations between sovereign States. I t is wide enough, especially having regard to the applicability of general principles of law as one of its sources, to include agreements made by States with persons other than States and not expressly or by implication made subject to the municipal law of such States. 52. The rights and duties of States as rights and duties of man I t has been shown that although the question as to who are the subjects of international law is to some extent of a doctrinal character, See above, p. 9. For a different view see the valuable contribution by Sperduti, 'L'individu et le droit international', in Hague Remil, go (1956) (ii), 824, who suggests that as individuals are not persons in relation to whom States undertake direct contractual engagements, they are not, for that reason, invested by international law with subjective legal rights proper. However, he admits that individuals possess in international law the legal powers for putting into effect the engagements contracted for their benefit and that therefore they are ' titulaires d'inttrets internationaux lkgitimes' (ibid.). a
Non-State Actors and International Law INTERNATZONAL LAW-THE
GENERAL P A R T
it has important practical implications. The answer to that question has influenced considerably the existing law relating to access of individuals-and, generally, of bodies other than States-to international tribunals and agencies. However, its importance goes
much further and explains the occasional emphasis of the discussion with which it has been surrounded. This is so in particular in the field of duties imposed by international law. Individuals are subjects of international law in the sense that-in Westlake's phrasel-the duties and rights of States are the duties and rights of men who comprise them. The composite personality of the State is not a sufficient reason for disregarding the fact either that the State is not an irresponsible instrumentality of power but primarily an expression of the legal order operating within a defined territory or that its conduct is imputable to the individual persons acting on its behalf and, in a wider sense, to the individuals comprising the State. Thus viewed, individuals are the subjects of international law. Unless the obligations of international law are directed to individual human beings, they are directed to no one. It is in that sense that the International Military Tribunal of Nuremberg, in rejecting, in 1946, the submission that violations of international law could not be attributed to individuals, said: ' Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.'2 The realization that, in the matter of observance of the obligations of international law, individuals are the true subjects of international law must entail two main results of practical significance. First, it must tend to limit the consequences of the personification of the State inasmuch as these tend to foster the assertion of two standards of morality-one to be observed by the individual and the other by the personified State. While the ethical shortcomings of the international conduct of States have often been exaggerated, there is no doubt that the notion of the personified State as the only and true subject of international law, distinct from the individuals who compose it and act on its behalf, has not been without influence. Secondly, as appears from the passage in the Nuremberg Judgment just quoted, the effectiveness of international law is bound to suffer unless the notion gains ground that the true subjects of the duties Pafirs, p. 78. See also to the same effect Krabbe, The Modern Idea of the State (English tranl. 1922), p. 240; Duguit, Trait4 de droit constitutionnel (1927), I, 560; Kelsen, Dm Problem der Souveranitat ( ~ g r o )pp. , 130-4, 162-7. Annual Digest, 13 (1g46), at p. 221.
15
I6
Non-State Actors and International Law S U B J E C T S OF I N T E R N A T I O N A L L A W
imposed by international law are not the metaphysical entities of the State but individual human beings. Further, the principle that the rights and duties of States are but the rights and duties of man is of importance inasmuch as it lends emphasis to the idea-with which is bound up the progress of international law-that the individual human being is the ultimate unit and end of all law, national and international, and that the effective recognition and protection of 'the dignity and worth of the human person' and the development of human personality is the final object of law. I n a different sphere, the recognition of the inalienable rights of the individual in relation to the State signifies the recognition of a legal authority, however impersonal, superior to the State itself-a notion which is congenial to the view that international law as a legal system can be understood only by reference to the principle that the State is subordinated to the international legal order. I t signifies the establishment of a direct relationship between the individual and international law similar to the manner in which within a Federation the individual benefits directly from and is subject to federal law. T o that extent it constitutes an essential stage in the progression of the international community towards the goal of federal integration. Finally, such recognition of the individual as a subject of international law-a recognition based on the assumption of some fundamental and inalienable rights of man-in turn sets a limit, both legal and moral, to any omnipotence of the organized international community destructive of the freedom alike of the individual and of the national State. The notion of the subject of international law thus conceived, of which the essence is the denial of any basic difference between the subjects of international and municipal law, gains strength from the fact that in a large and growing number of States international law has been recognized, by judicial practice or express enactment, as forming an integral part of the law of the State. This is the essence of what may be described as the doctrine of incorporation, an account of which is given in the next chapter.
SUPPLEMENTARY BIBLIOGRAPHY O N SUBJECTS OF
INTERNATIONAL LAW
The following is a selection of the vast literature on the question of subjects of international law: Kaufmann, Die Rechtskraft des internationales Rechts (1899); Westlake, Papers, p. 78; Kelsen, Das Problem der Souueranitat
Non-State Actors and International Law INTERNATIONAL LAW-THE
GENERAL P A R T
und die Theorie des Volkerrechts ( I 920), pp. 1 24-34 ;t h e same i n Hague Recueil, 42 ( 1 9 3 2 ) ( i v ) , 141-72, and Principles of International Law ( ~ g y )pp. , 94-147; Krabbe, The Modern Idea of the State (English transl. 192I ) , pp. 240-5 ; Duguit, Traiti de droit constitutionnel ( I g23), i , 55 1-60; Politis, Les nouuelles tendances du droit international (1927), pp. 59-93; Lauterpacht, Analog;es, pp. 73-82; the s a m e in Hague Recueil, 62 ( 1 ~ 3 7(;v), ) 207-43, i n L.Q.R. 6 3 (1947), 438-60, and 6 4 ( 1 9 4 8 ) ,97-1 19, and International Law and Human Rights ( 1 g 5 0 ) ,pp. 3-72; K n u b b e n , Die Subjekte des Volkerrechts ( I 928) ; Spiropoulos, L'individu en droit international ( I 928) ; Segal, L'individu en droit international ( 1 9 2 8 ); TCn&kid&s, L'individu en droit international (1928); Jessup, A Modern Law of Nations ( 1 9 4 8 ) , pp. 15-42; Sperduti, L'individuo nel diritto interna
17
Critical reflections on the Westphalian assumptions of international law and
organization: a crisis of legitimacy A. CLAIRE CUTLER
Abstract: This article argues that the fields of international law and organization are experiencing a legitimacy crisis relating to fundamental reconfigurations of global power and authority. Traditional Westphalian-inspired assumptions about power and authority are incapable of providing contemporary understanding, producing a growing disjunction between the theory and the practice of the global system. The actors, structures, and processes identified and theorized as determinative by the dominant approaches to the study of international law and organization have ceased to be of singular importance. Westphalianinspired notions of state-centricity, positivist international law, and 'public' definitions of authority are incapable of capturing the significance of non-state actors, informal normative structures, and private, economic power in the global political economy.
Introduction
This article posits that the fields of international law and organization are experiencing a legitimacy crisis relating to fundamental reconfigurations of global power and authority. It argues that traditional Westphalian-inspired assumptions about power and authority are incapable of providing contemporary understanding and identifies a growing disjunction between the theory and the practice of the Westphalian system. This disjunction suggests that these fields are experiencing a crisis in that they are incapable of theorizing contemporary developments that do not fit within the Westphalian paradigm of authority and rule. Indeed, a critical analysis of the Westphalian model of rule illustrates that it has never adequately captured international practice. However, the article argues that the lack of fit or asymmetry between theory and practice is becoming more acute, portending a crisis of legitimacy. The actors, structures, and processes identified and theorized as determinative by the dominant approaches to the study of international law and organization have ceased to be of singular importance. Westphalian-inspired notions of state-centricity, positivist international law, and 'public' definitions of authority are incapable of capturing the significance of non-state actors, like transnational corporations and individuals, informal normative structures, and private, economic power in the global political economy. Moreover, liberal mythology makes the content of the private sphere disappear by defining it out of existence as a political domain. In so doing, liberalism effectively insulates private activity from social and political controls. As a result, as part of the private sphere, neither transnational corporations nor individuals are regarded as authoritative legally or politically. Both are 'invisible' as agents of political and legal change. This produces some rather bizarre and alarming results. The legal 'invisibility' of corporations enhances their
Non-State Actors and International Law
20
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A. Claire Cutler
significance, facilitating forces of globalization, privatization, and deregulation, which are expanding corporate influence in the wor1d.l Simultaneously, the legal 'invisibility' of individuals seriously inhibits individual challenges to the expansion of corporate power and constrains efforts to hold corporations acco~ntable.~ The article will first consider the inability of Westphalian assumptions of power and authority to capture the activities of corporations as 'subjects' of the law. It will then examine notions of public and private authority in the context of the legal personality of transnational corporations. The article will conclude with a discussion of the conditions of political legitimacy and evaluate the existence of, or prospects for, a severe legitimacy crisis of theoretical, empirical, and normative proportions.
The problem of the 'subject' While much divides theorists of domestic and international politics, many are united in the treatment of their subject-matter as a constitutional order.%s theorists of international society have shown, the domain of international relations is characterized by principles and rules that provide a normative framework for action." This framework is in turn traced in origin to the Peace of Westphalia which brought an end to the Thirty Years' War and is generally regarded as providing the constitutional foundations for the emerging state system. Indeed, it is almost an article of faith amongst international lawyers that the origins of their discipline can be traced to the Peace of Westphalia as a founding, original m ~ m e n t David .~ Kennedy comments on this story of origins:
2
For a collection of papers that explores the dimensions of private, corporate power and authority in the global political economy, see A. Claire Cutler, Virginia Haufler. and Tony Porter (eds.), Private Authority and International Affairs (New York: SUNY Press, 1999). While more will be said later on the international legal status of the individual, a full analysis is beyond the scope of this article and must await another time. However, for good statements of the problem of the individual under international law, see Rosalyn Higgins, 'Conceptual Thinking about the Individual under International Law', in Richard Falk, Friedrich Kratochwil, and Saul Mendolvitz (eds.), International Law: A Contemporary Perspective (Boulder, CO: Westview Press, 1985) and M. W. Janis, 'Individuals as Subjects of International Law', Cornell International Law Journal, 17 (1 984), pp. 61-78. For limitations to the use of the domestic analogy, see IIidemi Suganami, The Domestic Analogy and World Order Proposals (Cambridge: Cambridge University Press, 1989). For the view that international society is a constitutional order characterized by norms and rules, see A. Claire Cutler, 'The "Grotian" Tradition in International Relations', Review of International Studies, 17 (1991), pp. 4 1 4 5 and the references cited therein relating to the English school and the works of Martin Wight, Hedley Bull, and Sir Hirsch Lauterpacht. And see Friedrich Kratochwil, Rules, Norms, and Decisions: On zhe Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989) and Kratochwil, 'Politics, Norms and Peaceful Change', Review of International Studies, (1998), pp. 193-218. In the United States this view has been associated with the study of international regimes as constituted orders. See for example, Robert Keohane, After Hegemony: Cooperation and Discord in the World Economy (Princeton, NJ: Princeton University Press, 1984) and International Institutions and State Power (Boulder, CO: Westview Press, 1989); and Oran Young, 'International Regimes: Toward a New Theory of Institutions', World Politics, 39 (1986), pp. 104-22. For a classic statement of this position see Leo Gross, 'The Peace of Westphalia, 1648-1948,' American Journal of International Law, 42 (1948), pp. 20-41. For more contemporary texts that date the history of modern international law to the Peace of Westphalia see Richard Falk, 'The Interplay of Westphalia and Charter Conceptions of International Legal Order', in Falk, Kratochwil, and Mendolvitz (eds.), Inlernational Law, and Peter Malanczuk (ed.), Akehurst's Modern Introduction to International Law, 7th revised edn. (London: Routledge. 1997).
21
Non-State Actors and International Law Westphalian assumptions and their legitimacy
135
International legal scholars are particularly insistent that their discipline began in 1648 with the Treaty of Westphalia closing the Thirty Years' War. The originality of 1648 is important to the discipline, for it situates public international law as a rational philosophy, handmaiden of statehood, the cultural heir to religious principle. As part of the effort to sustain this image, public international law historians have consistently treated earlier work as immature and incomplete-significant only as a precursor for what followed. Before 1648 were facts, politics, religion, in some tellings a 'chaotic void' slowly filled by sovereign states. Thereafter, after the establishment of peace, after the 'rise of states,' after the collapse of 'religious universalism', after the chaos of war, came law-as philosophy, as idea, as word.G As Kennedy notes, law came as philosophy into a void. There it established state sovereignty as the fundamental ordering principle of the states system, placing the . ~ a story of origins, it state at the centre as the unambiguous locus of a ~ t h o r i t yAs marks the birth of modern international law, anticipating the move from natural t o positive law conceptions more in keeping with notions of sovereign c ~ n s e n t The .~ entire edifice of modern international law thus came t o be crafted on the foundation of positive acts of sovereign consent, evidenced explicitly in treaty law and implicitly in customary international law. Treaty and customary law came to be regarded as the primary sources of law, while states became its 'subjects'. The doctrine of international legal personality determines what entities are regarded as 'possessing rights and duties enforceable at law'.9 Citing Sir Hirsch Lauterpacht, Shaw observes that 'the orthodox positivist doctrine has been explicit in the affirmation that only states are subjects of international law'.Io Indeed, for most of the history of modern international law, states have been regarded as the sole legitimate subjects. While there has been a slow recognition of the legal personality of other corporate bodies, like international organizations, the general orientation of the law has been statecentred. However, there are problems with this story of origins. To begin, historically, other non-state entities like the Holy See, chartered companies, and belligerents have been treated as having some legal capacities." As Stephen Krasner notes, Westphalia did not provide a n unambiguous determination of the state as the sole or exclusive locus of authority. The view that the Westphalian system implies that sovereignty has a taken-for-granted quality is wrong. The actual content of sovereignty, the scope of authority that states can exercise, has always been contested. The basic organizing principle of sovereignty-exclusive control
'A New Stream of International Law Scholarship', Wisconsin International Law Journal, 7 (1988), p. 14. See Hedley Bull, The Anarchical Society: A Sludy of Order in World Politics (London: Macmillan,
' 1977) * Kennedy, 'A New Stream', p. 22 notes that '[Tlhe traditional intellectual story of international law's
evolution from 1648 to 1918 is familiar. Begun as a series of disassociated doctrines about navigation, war and relations with aboriginals within a "natural law" philosophy, international law slowly matured as a comprehensivedoctrinal fabric rendered coherent by a set of "general principles" and authoritative by its "positivist" link to sovereign consent. The shift from fragmentation to coherence is accompanied, then, by a shift from "natural law" to a combination of "principles" and
"positivism"'.
lo
M. N. Shaw, International Law, 3rd edn. (Cambridge:Cambridge University Press, 1994),p. 135. Shaw, International Law, p. 137 cites a 1975 volume of Lauterpacht's Int~rnationalLaw; Collected
I'
Shaw, Int~rnationalLaw,p. 137.
Papers, vol 11, p. 489.
22
Non-State Actors and International Law
I36
A. Claire Cutler
over territory-has been persistently challenged by the creation of new institutional forms that better meet specific material needs.'* But the problem goes still deeper than ambiguity over the exclusivity of state claims to authority and relates to the status of the state as the 'subject' of law and politics. This is referred to as the 'problem of the subject' and runs something as follows.13The problem of the subject involves the tendency to 'avoid confronting the question of who or what thinks or produces law'.I4 Schlag notes that it can be stated in different ways: 'Just who or what is it that thinks about or produces law?' or 'What must be true or potentially true about the character of the agents that construct the law, in order for the law to be a legitimate or a viable enterprise?' or 'What conception of subject-object relations is implicit in the rhetorical and social forces that are constructing us?'15 In international law, the problem of the subject appears in the designation of states as 'subjects' of the law while individuals and corporations are regarded as 'objects' of the law. While more will be said of this in the next section, as 'objects', whatever rights or duties individuals and corporations have are derivative of, and enforceable only by, states who, as 'subjects', conferred these rights and duties upon them. Conceptualizing the state as the subject thus performs a valuable function. Schlag notes that the subject is a 'concierge' and as 'the keeper of artifacts is a kind of bailee' whose role it is to conserve and avoid change.16 But the subject is more than conservative of the existing order, for the concierge also functions as a gatekeeper. In international law, the state functions to keep out antistatist tendencies and personalities. This is achieved through a process of differentiating between subject and object, associating the former with states and the latter with individuals and corporations and then objectifying this condition by allowing the subject to drop out of sight. This enables the law to stand alone as the embodiment of sovereign will, authority, and legitimacy. Under positive international law the law became the embodiment of the sovereign will; it was abstracted, objectified and related to the state as thought relates to action or as legal theory relates to state practice. Most importantly, the state was both reified as a 'subject' and deified through objectification of the law.I7 As Kennedy notes, '[l]ronically, at the very moment of religion's disappearance, international law appears as a universalist ideology of its own-temporally freed from its origins and c o n t e ~ t ' . 'Moreover, ~ law, like 'Westphalia and All That', in Judith Goldstein and Robert 0. Keohane (eds.), Ideas and Foreign Policy (Cornell University Press, 1993), p. 235. l' Pierre Schlag, 'The Problem of the Subject', Texas Law Review, 69 (1991), p. 1627, formulates the problem of the subject in the context of the objectification and sublimation of the subject as a formalistic move to give law the appearance of neutrality and objectivity, and hence to render law stable and legitimate. l4 Schlag, 'The Problem of the Subject', p. 1640, notes that '[Tlhe sublimation of the subject into the order of the object and the resulting fetishism is a move that is replayed endlessly in American legal thought. This self-effacement of the subject to the order of the object is precisely what enables legal thinkers to keep believing in their objectified thought structures as off the shelf, stand-alone, selfsufficient, self-sustaining systems, completely independent of the activity of the subjects. This sublimation of the subject is precisely the kind of process targeted by the reification critique of liberal legal thought offered by cls [critical legal studies].' l5 Schlag, 'The Problem of the Subject', p. 1629, note 6. l 6 Schlag, 'The Problem of the Subject', p. 1726. Kennedy, 'A New Stream', p. 25 observes that '[Dloctrinally, the development of a territorial jurisdiction, so crucial to the image of a disembodied state, was first and foremost a religious n o t i o n replacing and instantiating a disembodied deity as state.' l8 Ibid., p. 22. l2
23
Non-State Actors and International Law Westphalian assumptions and their legitimacy
137
religion before, came to operate as a 'mechanism of exclusion', excluding and suppressing 'actual social difference'.19 As Kennedy observes '. . . we would find in the origins of international law not a moment of tolerant generality, of liberality, but a well articulated practice of social intolerance. For it was the law of peoples
which worked to exclude the Jew, the homosexual, the heretic, and perhaps most
crucially, worked to suppress the exuberance of spiritual fervour, displacing it with bureaucracy. The suppression of witchcraft, sorcery, but also of ecstatic millenarianism, and their replacement by the logic of state orthodoxy, was a collaborative practice of religious inter-sovereign action'.20 The subjective identity of business corporations, which are regarded as analogous to individuals, was suppressed along with that of individuals and excluded as part of the reification and deification of the state. Moreover, the law came to operate in a dialectical fashion with the state. The law both constituted the state as 'subject' and mirrored the state through laws governing sources and personality. But, the law also stood outside the state and, through the process of objectification described above, policed and measured state action. Kennedy describes this as a dialectical or double movement: The move is paradoxical. We need to read it very slowly. On the one hand, international law is a matter of ideas, born in the move from state to law, instantiating law to facilitate the state. On the other, maturity is achieved at each stage through a double reversal of this order-first by a movement from thought to action, and second, exactly at the moment of law's movement from principle toward practice, law is set up against the state, separated from the sovereign it facilitates and mirror^.^' The implications of treating corporations, like individuals, as objects and not as subjects are deeply troubling empirically and normatively. When one reviews the activities of business corporations it becomes clear that while they may be objects at law (de jure), they are, in fact, operating as subjects (de facto). Indeed, the problem of the subject is becoming increasingly more acute in the context of contemporary developments that are reconfiguring state-society relations, in some cases causing a contraction of state authority and an expansion of private, corporate authority in the world. Susan Strange has posed the problem of the subject in the context of 'Who or what is responsible for change?' and 'Who, or what, exercises authoritythe power to alter outcomes and redefine options for others-in the world economy or world society?'22 She calls it Pinocchio's problem, for, like Pinocchio upon his transformation from a puppet into a boy with no strings to guide him, it involves making choices over 'allegiance, loyalty, and identity' in 'a world of multiple, diffused authority'. The problem of the subject is a problem of the growing disjunction between law and politics or between theory and practice. However, this disjunction is obscured by state-centric definitions of law and politics and public notions of authority that render private authority invisible, matters to which we will now turn.
'9
20 21
"
Ibid., p. 25. Ibid.. o. 25. 1bid.i 23. The Retreat of the State: The Diffusion of Power in the World Economy (Cambridge: Cambridge University Press, 1996), p. 184.
b.
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A. Claire Cutler
Public and private authority: states, markets, corporations and legal personality The distinction between public and private authority is central to legal and political theory, both domestically and internati~nally.~~ The association of authority with the state, government, and the 'public' sphere and its consequent disassociation with the 'private' sphere of individuals and their market activities is essential to liberal political and legal analyses. As Michael Walzer notes, these associations are fundamental to the 'liberal art of separation', where 'political community is separated from the sphere of economic competition and free e n t e r p r i ~ e ' .Indeed, ~~ these associations derive from the prior more fundamental distinction between politics and economics.25They developed as powerful associations over the course of the emergence of the European state system and modern capitalism. They formed the foundation for the Westphalian order and continue to inform contemporary liberal political and legal discourse. First, the state was identified as the locus of political and legal authority, although as we noted above this association was not uncontested. Later, the nineteenth-century identification of the self-regulating market as a defining institution of the private sphere provided a crucial element for dominant notions of political authority. It perfected the association of 'political' and legal authority with the public sphere of governments and the association of 'apolitical' economic relations with the private sphere of individuals and marketsz6 Henceforth, governments came to be the legitimate wielders of 'public' and political activity, whilst markets were the legitimate arbiters of private and economic activity. The authority of the market in ordering private relations was grounded in legal theory and liberal political economy, which provided the rationale for the private and 'nonauthoritative' regulation of individual and corporate activities. Morton Horowitz notes that 'Vlust as nineteenth-century political economy elevated markets to the status of the paramount institution for distributing rewards on a supposedly neutral and apolitical basis, so too private law came to be understood as a neutral system for facilitating voluntary market transactions and vindicating injuries to private rights'.27 Liberalism facilitated these developments by providing private ordering as a grund norm or a founding myth for this constitutional order. The private ordering of individual and corporate economic activities was posited by liberalism to provide the most natural, neutral, consensual, and efficient means for
23
24 25
26
''
See generally, A. Claire Cutler, 'Locating "Authority" in the Global Political Economy', International Studies Quarterly, 43 (1999), pp. 59-81 and Cutler, 'Private Authority and International Trade Relations: The Case of Maritime Transport', in Cutler, Haufler, and Porter (eds.), Privaze Authority and International Affairs, pp. 283-329. 'Liberalism and the Art of Separation,' Political Theory, 12:3 (1984), pp. 315-30. See A. Claire Cutler, 'Global Capitalism and Liberal Myths: Dispute Settlement in Private International Trade Relations', Millennium: Journal of International Studies, 24:3 (1995), pp. 377-97, and Susan Strange, 'Political Economy and International Relations', in Ken Booth and Steve Smith (eds.), International Relations Theory Today (University Park, PA: The Pennsylvania State University Press, 1995). For a classic account of the origin of the separation of public and private authority in terms of disembedding the self-regulatingmarket from its social and political context, see Karl Polanyi, The Great Transformation: The Political and Economic Origins of our Times (Boston, MA: Beawn Press, 1944). 'The History of the PublidPrivate Distinction', University of Pennsylvania Law Review, 130 (1982), pp. 1425-6.
Non-State Actors and International Law Westphafian assumptions and their legitimacy
25 139
regulating commercial activities and for achieving justice in international economic affairs.28 In international political theory, the free market continues to be regarded as an integral component of liberal theorizing. Although contemporary liberals have long recognized important imperfections in market operations, they continue to regard market actlvity as an Integral part of mternat~onalrelations.z9 However, there is a great degree of controversy over the nature of the relationship between the market and the state; between economics and politics; between the private and public spheres. The extent to which states control markets or, conversely, are driven by them forms a central debate in international political economy today. Part of this controversy stems from the near axiomatic nature of the associations of states with political activity and of markets with economic activity and with what appear to be rather visible departures from these associations. Increasingly, states are functioning as market participants and economic actors, like transnational corporations, are influencing political outcomes.30 However, another part of the controversy stems from a less visible debate between liberal and Marxist analysts over the priority to be assigned to economics or to politics. Attributing authority and, hence, political significance to economic actors sits uneasily with liberal democratic theory and with the representative foundations of this constitutional order. Indeed, international law forms the foundation for a representative order in which state authority and state consent constitute the litmus tests of law and society. The recognition of the 'political' nature of private or non-state authority threatens to undermine these constitutional foundations, while attributing political functions to economic actors and processes threatens to elide into M a r x i ~ m . ~The l 'liberal art' of separating politics and governments from economics and markets is thus a crucial element of the founding mythology. International legal theory reproduces these liberal separations in the doctrine governing international legal personality and in the distinctions between public and private international law.32 The law governing international legal personality
'* 29
30
)'
32
Cutler, 'Global Capitalism and Liberal Myths'. For the significance of the market to international political economy, see generally Robert Gilpin, The Political Economy of Internatioml Relations (Princeton, NJ: Princeton University Press, 1987); Susan Strange, States and Markets (London: Pinter, 1988); Herman M. Schwartz, States Versus Markets: Historj Geography, and the Development of the International Political Economy (New York: St. Martin's Press, 1994); Stephen Gill and David Law, The Global Political Economy: Perspectives, Problems and Policies (Baltimore. MD: The Johns Hopkins University Press, 1988). Susan Strange was probably one of the strongest proponents of this view. See States and Markets, The Retreat of the State, and 'Political Economy and International Relations', and with John Stopford, Rival States, Rival Firms: Competitionfor World Market Shares (Cambridge: Cambridge University Press, 1991). See Ellen Meiksins Wood, 'The Seaaration of the Economic and Political in Cavitalism'. New Left Review, 127 (1981), pp. 6 6 9 5 repr;duced in her Democracy Against ~a~ita1ism:~Renewing ~istorkal Materialism (Cambridge: Cambridge University Press, 1995) for discussion of the distinction between economics and politics. And see A. Claire Cutler. 'Historical Materialism, Globalization, and Law: Competing Conceptions of Property', forthcoming in Mark Rupert and Hazel Smith (eds.), The Point is to Change the World: Social~smthrough Globalization? (Routledge, forthcoming) for the view that Marxist analysis reproduces the liberal distinction between economics and politics and thus also neglects the authority of private relations. For the liberal foundations of international law, see M. W. Janis 'Jeremy Bentham and the Fashioning of 'International Law', American Journal of International Law, 78 (1984), pp. 405-18, and for a critical analysis of the distinction between public and private international law, see A. Claire Cutler, 'Artifice, Ideology, and Paradox: The PublidPrivate Distinction in International Law', Review of International Political Economy, 4 (1997), pp. 261-85.
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26
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A. Claire Cutler
identifies the proper 'subjects' of the law. It determines who possesses 'rights and duties enforceable at law. .. . Legal personality is crucial. Without it institutions and groups cannot operate for they need to maintain and enforce claims.'33 In identifying the state as the proper subject of the law, the doctrine formed the foundation for establishing the dominant authority structure as that of the territorial state and the state system and eliminated any potentially rival claims to identity and authority coming from individuals or from corporate entities. As Mark Janis notes, '[nlineteenth century positivists promoted the notion that the individual was not a proper subject of international law ... public international law went to matters affecting states, while private international law concerned matters between individuals' .34 The identification of states as the proper 'subjects' of international law is generally associated with legal positivism, which attributes the binding force of international law to states and state consent. Legal positivism developed as a reaction to natural law theories,35 whose assumption of a universal transcendent moral order was increasingly difficult to reconcile with the growing power of states.36 Legal positivists, historically, provided the equivalent of the statist political theories advanced by Jean Bodin and Thomas hob be^.^^ Today, the modern doctrine of international legal personality continues to run parallel to territoriallstatist conceptions of international relations. Only states are recognized as full members of the United Nations and the degree of legal personality possessed by international organizations is determined by and derived from their member states.38Only states may bring contentious proceedings before the lnternational Court of Ju~tice.~"nly states are entitled to claim the right of territorial integrity, a basic right recognized in the Charter of the United Nations. The Vienna Convention on the Law of Treaties explicitly limits the application of the Convention to treaties between states, although increasingly non-state entities are entering into treaties40 Only states may acquire territory, appoint ambassadors, or declare war.41 Importantly, as mentioned earlier, the international legal status of transnational corporations, probably the most visible private global actors today, is analogous with that of the individual. They are 'objects' and not 'subjects' of the law. As Rosalyn Higgins notes, leading legal positivists regard individuals as 'objects' of international law.42According to this view, '[ulnder a legal system there exist only objects and subjects. In international law "subjects" is the term used to describe
"
34
35
36
'' 38 39 40
4' 42
Shaw, International Law, p. 135. An international person is defined as 'capable of possessing international rights and duties ... and [having the] capacity to maintain its rights by bringing international claims' by the International Court of Justice in the Reparations case (Advisory Opinion on Reparations for Injuries Suffered in the Service of the United Nations, 1949 International Court of Justice Reports), p. 178. 'Individuals as Subjects under International Law'. p. 62. See Kobert J. Beck, Anthony C. Arend and Robert D. Vander Lugt (eds.), International Rules: Approaches from International Law and International Relations (Oxford: Oxford University Press, 1996), chs. 2 and 3 for good reviews of natural and positive law theories of international law, respectively. See Cutler, 'The "Grotian Tradition" in International Relations'. Shaw, International Law. p. 25. Reparations case, p. 180. Article 34 (I), Statute of the International Court of Justice. See the discussion of bilateral investment treaties accompanying note 62. Malannuk, Akehurst's Modern Introduction to International Law, p. 100. 'Conceptual Thinking About the Individual in International Law'.
Non-State Actors and International Law Westphalian assumptions and their legitimacy
141
those elements bearing, without the need for municipal intervention, rights and responsibilities. Under the existing rules of international law there is no evidence that individuals are permitted to be the bearers of duties and responsibilities. They must, therefore, be objects: that is to say, they are like "boundaries" or "rivers" or "territory" or any of the other chapter headings found in the traditional textbooks.' 43
As objects, individuals have no original rights or liabilities under international law.44The only rights or liabilities they possess are derivative of states under the The situation is basically principles governing nationality and state re~ponsibility.~~ the same for corporations, with the narrow exception of those that are constituted by states as international 'subjects' by international treaties creating them.46Thus, as one legal theorist notes, '[tlhe law recognizes as "international corporations" only those entities which are constructed by international law, that is by treaty. ... This format is not available to the private commercial enterprise which must content itself with stringing together corporations created by the laws of different state^.'^' For private business enterprises operating transnationally, legal personality is conferred under national and municipal laws, and corporate rights, duties, and remedies remain a function of national law. The transnational corporation thus lacks 'concrete presence in international law ... it is an apparition ... its actuality sifted through the grid of state sovereignty into an assortment of secondary rights and contingent liabilitie~'.~~ Like individuals, transnational corporations are treated as
" 'Conceptual Thinking About the Individual in International Law',
p. 478.
" It is important to note that while the formal legal status of the individual remains that of an 'object,'
45
46
47
48
there are growing indications that the international legal status of the individual is undergoing a practical transformation. A number of forums now entertain the human rights claims of individuals, although legal theory and the official position of many states, including the former Soviet states, many developing states, and the United States, remain stubbornly opposed to the extension of international legal personality to individuals. The most notable instances of this accretion of legal personality occur in the contexts of the European Commission on Human Rights; the European Court of Justice; the Optional Protocol to the United Nations Covenant on Civil and Political Rights; the War Crimes Tribunals for Nuremberg. Tokyo, former Yugoslavia, and Rwanda; the United Nations Commission on Human Rights. The United Nations Trusteeship Council and the yet to be established International Tribunal for the Law of the Sea entertain individual claims in areas outside the human rights context. See generally the references cited above in note 2 and Donna E. Arzt and Igor I. Lukashuk, 'Participants in International Legal Relations,' in International Law: Classic and Contemporary Readings, edited by Charlotte Ku and Paul F. Diehl (Boulder, CO: Westview Press, 1998), pp. 155-76. This trend does not appear to be occurring in areas involving individual claims of economic loss from wrongful or negligent international activities. While the Iran-US Claims Tribunal, which was set up to hear claims flowing from the Gulf War, is open to individual claims, it has largely ignored the claims of individuals as Arzt and Lukashuk note at p. 168. Typically. individuals seeking to make a claim under international law must work through the state of which they are a national. However, there is no obligation on states to represent their nationals diplomatically or in international judicial proceedings. Such representation is purely discretionary and may be withheld. See William R. Slomanson, Fundamenla1 Perspectives on International Law, 2nd edn. (MinneapolidSaint Paul, MI: West Publishing Company, 1995), ch. 4. Examples of corporate enterprises exhibiting various elements of international legal personality include Eurofima, Intelsat, Eurochemic, the Mont Blanc Tunnel Company, and the Mozelle Canal Company. Detlev F. Vagts, 'The Multinational Enterprise: A New Challenge for Transnational Law', Harvard Law Review, 83 (1970), p. 740. Fleur Johns, 'The Invisibility of the Transnational Corporation: An Analysis of International Law and Theory', Melbourne University Law Review, 19 (1994), p. 893.
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28
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A. Claire Cutler
nationals of the state in which they are i n ~ o r p o r a t e d .And ~ ~ as in the case of individuals, the state is under no obligation to pursue a corporation's claims diplomatically or under international law. Indeed, states may be reluctant to do so in cases where the nationality of the corporation is ambiguous and difficult to determine.50 More importantly, however, the lack of legal personality renders corporations unaccountable under international law. Once again their responsibility, like their identity, is filtered through the lens of state authority. According to the doctrine of state responsibility, states are responsible for acts or omissions that breach international law and cause injury to another state.51However, the injuries must be caused by a state, its officials or others whose behaviour is imputable or attributable to the state.52 The actions of private corporate entities will thus not engage state responsibility and injured parties are left to their remedies under local law.53 The ability to hold a corporation responsible for wrongful or negligent conduct will thus turn on the provisions of national law. Unfortunately, establishing corporate responsibility is particularly difficult when domestic legal doctrines, like shareholder limited liability and entity theory, shield parent corporations from domestic liability for the actions of their foreign s u b s i d i a r i e ~ .This ~ ~ implies significantly compromised state control over corporations and their affiliates. As one legal analyst observes: TNCs benefit from their international nonstatus. Nonstatus immunizes them from direct accountability to international legal norms and permits them to use sympathetic national governments to parry outside efforts to mold their behavior. TNCs also enjoy some immunity from third world derision at the UN General Assembly and other multinational forums 49
The traditional Anglo-American approach to determining the nationality of a corporation is the place of incorporation (domicile) and for unincorporated businesses, the state in which the governing body meets or is located. In contrast, European states tend to use the state where the corporation's home office is located or where its principal business is carried on. See Gerhard von Glahn, Law Among Nations: An Introduction to Public International Law, 7th edn. (Boston, MA: Allyn and Bacon. 1996). See too Ian Brownlie. Princi~leso f Public International Law. 4th edn. (Oxford: Clarendon press, 1990), pp. 4214. In the famous legal case Barcelona Traction, Light, and Power Co., 1970 International Court of Justice Reports (Second Phase), 3 (1970). the company Barcelona traction was incorporated and held its registered office in Canada although 88 per cent of its shareholders were nationals of Belgium, and some lived in Canada and the US. Barcelona Traction operated a power company in Spain which was declared bankrupt by Spanish courts, who ordered its assets seized. Belgium, Canada, and the US tried to assist Barcelona Traction resist the seizure because they felt the Spanish authorities were acting prematurely and improperly in instituting the bankruptcy proceedings. Canada was unwilling to pursue the claims of the shareholders living in Canada, and Belgium pursued the claim against Spain in the International Court of Justice (ICJ). However, the ICJ disallowed Belgium's claim, finding that the proper country to initiate the claim was Canada. Given that Canada was unwilling to proceed with the claim, the shareholders were left with no remedies under international law. State responsibility comes in a number of forms including injuries to a state or aliens (foreign citizens) and ranging from human rights violations to injury to property interests See Shaw, International Law, ch. 13. Shaw, International Law, p. 488. That is unless the state fails to provide local remedies to redress the wrong. Von Glahn, Law Among Nations, p. 201. See Philip I. Blumberg. The Multinational Challenge to Corporation Law: The Search for a New Corporate Personality (New York and Oxford: Oxford University Press, 1993) for the doctrine of limited liability and entity theory. See Notes, 'Liability of Parent Corporations for Hazardous Waste Cleanup and Damages', Harvard Law Review, 99 (1986), p 991 for the view that 'limited liability encourages corporations to place high-risk activities in the hands of poorly capitalized subsidiary corporations. The incentive for corporations to use subsidiaries as a shield against liability is particularly great in the hazardous waste disposal field because the costs of waste disposal activities may be readily shifted onto involuntary creditors'.
.
5L
52
53
"
<
29
Non-State Actors and International Law Westphalian assumptions and their legitimacy
143
because national governments are willing to insulate them from these and other international pressures. Broad international legal personality would destroy these defences.55 Understandably, transnational corporations are not lobbying for the recognition of general international legal personal it^.^^ Rather, they are content to arrange more
specific recognition of legal personality for limited purposes so as to enable them to pursue their legal claims more directly without exposing them to more general international legal responsibility. This is precisely what they are doing in efforts ranging from their increased participation in international negotiations to the enhanced recognition of their right to make a legal claim directly against another corporation or a state in international tribunals under international law without the representation of a state. Concerning international negotiations, the general rule is that only states are the formal participants in international negotiations. However, there has been considerable expansion of corporate r e p r e s e n t a t i ~ n .In ~ ~the International Labour Organization, representatives of business and labour participate and vote independently of government representative^.^^ In the United Nations system in general, transnational corporations, like individuals, are most often limited to observer and/or consultative statuss9 However, their participation in international organizations and negotiations has increased dramatically and their influence on the outcomes of negotiations can be substantiaL60 In terms of direct access for corporations to forums for dispute settlement, there has been a notable expansion of corporate powers. Corporations have legal standing in the European Economic Community and the European Coal and Steel Comm ~ n i t y . ~The ' International Bank for Reconstruction and Development (World Bank) has created an international tribunal, the International Center for the Settlement of Investment Disputes (ICSID), that hears investment disputes between states and foreign corporations. Indeed, there has been a proliferation of bilateral investment treaties that provide access to ICSlD for dispute settlement and expand corporate rights by prescribing standards of treatment of corporations, protecting them from expropriation without compensation, and granting corporations the right to take legal actions against states.62 Corporations and individuals have legal '5
'h
57
58
s9
61
62
See Jonathan I. Charney, 'Transnational Corporations and Developing Public International Law', Duke Law Journal (1983), p. 767. Charney, 'Transnational Corporations', p. 766 notes that in international negotiations, 'TNCs have not overtly sought broad international legal personality' and were unenthusiastic about developing mechanisms for international incorporation. Charney, "liansnational Corporations'. Ibid., p. 750-1. Ibid., p. 751, n. 4 notes that in the United Nations Commission on International Trade and Development (UNCWD) business interests could only participate through representations to the Secretariat and to national delegations. In comparison, the Organization for Economic Cooperation and Development (OECD) enters into formal consultation with business and labour groups. He also notes that there were extensive consultations with business during the Tokyo Round GATT negotiations. See Charney, 'Transnational Corporations', pp. 75&5. Arzt and Lukashuk, 'Participants in International Legal Relations'. p. 167. A bilateral investment treaty is 'a legally binding international agreement between two states, whereby each state promises, on a reciprocal basis, to observe the standards of treatment laid down in the treaty in its dealings within investors from other contracting states'. Muchlinski, Multinational Enterprises and the Law, p. 617. They are designed to protect the investor and when used in combination with an agreement to submit disputes to ICSID accord corporations much scope in enforcing their rights against host states.
30
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A. Claire Cutler
standing in the Iran-United States Claims Tribunal, set up to settle disputes arising from the Gulf War.63The Hague Permanent Court of Arbitration has amended its rules to attract more business by offering to hear claims of non-state parties.@ The Canada-United States Free Trade Agreement (FTA) provides for binding dispute settlement for corporation^.^^ The North America Free Trade Agreement (NAFTA) provides similar access for private parties.66 It is noteworthy that access for private parties is also provided for under the failed OECD initiative to create a Multilateral lnvestment Agreement (MAI).67 Finally, the widespread preference for private arbitration over adjudication in national courts is revolutionizing the dispute settlement world by removing private international commercial relations from the purview of states and their public policy concerns. This is effecting a major expansion of corporate authority and autonomy.68The provision of direct access for corporations to dispute settlement panels and the expansion of private dispute settlement constitute significant accretions of international legal personality and corporate authority. This review illustrates that transnational corporations are increasingly functioning as participants in the direct creation, application, and enforcement of international law. Moreover, governments are participating in the expansion of corporate rights and powers. Changes in national business culture and ideology consistent with the removal of barriers to corporate activity are enhancing corporate authority. As Jan Scholte notes: 'states have played an indispensable enabling role in the globalization of capital ... governments have facilitated global firms' operations and profits with suitably constructed property guarantees, currency regulations, tax regimes, labour laws and police p r o t e ~ t i o n ' .Corporations ~~ are gaining rights through novel uses of domestic human rights d o c u r n e n t ~ The . ~ ~ resulting expansion of corporate rights under domestic constitutional laws is generally consistent with a notable decline in the corporate control function of states. As states adopt more permissive rule structures facilitating the expansion of corporate investment and financial activities, they have moved away from the 'corporate control' model that characterized previous approaches to regulating T N C S . ~ ~ International legal theory appears to be slow to react to the expansion of which is contributing to a reconfiguration of state-society corporate
@
65
66 67
69 70
7'
Malannuk, Akehurst's Modern Introduction to International Law, p. 101. Ibid., p. 294. J. -G. Castel, 'The Settlement of Disputes under the 1988 Canada-United States Free Trade Agreement', American Journal of International Law 83 (1989), pp. 118-28; Lorraine Eden, 'The Emerging North American Investment Regime', Transnational Corporations 5:3 (December 1996), pp. 61-98; Malanczuk, Akehurst's Modern Introduction to International Law, p. 101. See Eden, 'The emerging North American investment regime'. Frans Engering, 'The Multilateral lnvestment Agreement', Transnational Corporations (December 1996), pp. 156-7. See Cutler, 'Global Capitalism and Liberal Myths', and Yves Dezalay and Bryant G. Garth, Dealing in Virtue: International Commercial Arbitrarion and the Construction of a Transnational Legal Order (Chicago and London: University of Chicago Press, 1996). 'Global Capitalism and the State', International Aflairs 73:3 (1997), pp. 442-3. Carl J. Mayer, 'Personalizing the Impersonal: Corporations and the Bill of Rights', The Hastings Law Journal, 41 (March 1990), pp. 577-667 and Chris Tollefson, 'Corporate Constitutional Rights and the Supreme Court of Canada', Queen's Law Journal, 19 (1993). pp. 309-49. Peter Muchlinski, Multinational Enterprises and the Law (Oxford and Cambridge: Blackwell, 1995). pp. 9-1 1.
31
Non-State Actors and International Law Westphalian assumptions and their legitimacy
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relations.72Noting that the concept of corporate legal personality may be 'ripe for a revival' and in need of analytical and sociological re-examination in the 'global context', one legal analyst notes scant development in the past forty years.73Indeed, when considered in light of the 'global context', such analysis becomes even more urgent. Stephen Gill analyses similar developments in the context of 'disciplinary neoliberalism' and a 'new constitut~onalism'that 'confers prlvlleged rights of citizenship and representation on corporate capital, whilst constraining the democratization process that has involved struggles for representation for hundreds of years'.74 This development is affecting a shift in authority structures, recasting state and corporate authority and control. In some cases the political authority of states is being challenged and modified in a manner that enhances corporate power. This is evident in the broadly permissive nature of the principles that are being articulated as the grund norms for commercial law and in the unprecedented expansion of private international commercial a r b i t r a t i ~ n In . ~ ~other cases, national courts are participating in the insulation of nationally-based corporations from liability. For example, the working relationship between national courts and corporations that do business or have subsidiaries abroad is evident in their efforts to limit the rights of foreign litigants, seeking to take advantage of liberal American products liability laws, to litigate in the United States.76The implications for holding corporations liable for environmental disasters, personal injuries from defective goods and a host of other wrongful or negligent actions are deeply problematic in this general climate. The development of novel corporate arrangements render transnational corporations more difficult to locate nationally. This further compounds the problem of corporate accountability. As Susan Strange observes, the proliferation of inter-firm relationships, like 'partnerships, production-sharing arrangements, collaborative research and networking . .. have begun to blur the identity and indirectly undermine the authority of the state' making the attribution of corporate nationality and responsibility very diffic~lt.'~ She notes that when 'partners in the network operate and are registered in several countries, it is impossible even to guess the In contrast, students of international political economy seem to be more aware of the growing practical significance of TNCs. For Lorraine Eden, 'Bringing the Firm Back In: Multinationals in International Political Economy', in Lorraine Eden and Evan H. Potter (eds.), Multinationals in the Global Political Economy (New York: St. Martin's Press, 1994): p. 26, the crucial issue in the global political economy today 'is the tension between states and multinationals, not states and markets'. Susan Strange too notes the increasing 'political' significance of firms as changes in the global political economy enhance the significance of markets. See also Strange, The Retreat of the State, p. 4. However, there is still a dominant tendency to regard corporate power as ultimately linked to and conditioned by state power. See Stephen Krasner, 'Power Politics, Institutions, and Transnational Relations', in Bringing Transnationals Back In: Non-State Actors, Domestic Structures and International Institutions. Thomas Risse-Kappen (ed.) (Cambridge: Cambridge University Press, 1995), p. 279. " William Twining, 'Globalization and Legal Theory: Some Local Implications', Current Legal Problems, 49 ( 1 996), p. 6. 74 'Globalisation, market civilization, and disciplinary neoliberalism', Millennium; Journal of International Studies, 24 (1995), p. 413. 75 See UNIDROIT'S Principles of International Commercial Contracts (Rome: UNIDROIT, 1994) and Cutler, 'Global Capitalism and Liberal Myths'. 76 See Hilmy Ismail, 'Forum Non Conveniens: United States Multinational Corporations', and 'Personal Injuries in the Third World: Your Place or Mine?, Boston College Third World Law Journal, 1 1 (1991), pp. 249 76. " Strange, 'Global Government and Global Opposition', in Politics in an Interdependent World: Essays Presented to Ghita Ionescu, Cheltenham, U K and Brookefield, VT: Edward Elgar, 1994), p. 26. 72
32
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"nationality" of the whole network. Yet much media comment and much academic analysis still assume that each transnational corporation has a national identity and that governments can identify and then support their own national champion.'78 While there appears to be a great deal of recognition of the enhanced power of transnational corporations, it is unaccompanied by effective efforts to regulate them. In many matters, international law is silent. There is no binding and general international commercial code governing the practices of transnational corporations. Most matters are dealt with under national systems of corporate and private international law principles, which even corporate lawyers agree are i n a d e q ~ a t e . ~ ~ The efforts of international and regional organizations and private business and industry associations have produced a number of instruments that attempt to regulate corporate behaviour, but they tend to be of a predominantly 'soft law' nature.80 The Draft Code of Conduct produced by the Commission on Transnational Corporations8' was hoped to make a major contribution to the development of an international regulatory framework, but the efforts failed to produce a consensus. Other failed efforts 'affirm rather than challenge the assumption that it is a state's prerogative to deal with TNCs [transnational corporations] through its national legal systems'.82 This creates a problem of ensuring corporate accountability. As noted above, there is no guarantee that a state will assume responsibility for the actions of corporations holding its nationality. Often the place of nationality is only remotely connected to corporate operations. As the United Nations Centre on Transnational Corporations observes: '[a] number of factors .. . conspire to make purely national control systems variously evadable, inefficient, incomplete, unenforceable, exploitable, or negotiable . . . with respect to transnational corporat i o n ~ ' One . ~ ~ solution is the recognition of the transnational corporation as a legal subject, bearing rights and responsibilities directly under international law. However, this faces major problems in states' unwillingness to 'relinquish their traditionally dominant position in international law, or to acknowledge the effectiveness of law in the absence of a s ~ v e r e i g n ' .Moreover, ~~ the emphasis on the legal aspects of corporate personality risks a formalism that mistakes the legal form for the actual conduct and practices of corporations and of states. It is here that we return to the 'problem of the subject.' The 'problem of the subject' must be framed today in the context of broader and deeper forces operating in the global political economy. The contemporary 'subject' is being reconfigured and reconstituted through a globalizing corporate ideology and business culture. A global mercatocracy unites local and global political economies through the law merchant, lex mercatoria, a body of commercial law and practice that has regulated merchant activities for over a
78 79
80 81
82
83 84
Strange, 'Global Government and Global Opposition', p. 26. Notes o f Cases, 'The Multinational and the Antiquities o f Company Law', The Modern Law Review, 47 (1984),pp. 87-92. Johns, 'The Invisibility o f the Transnational Corporation', 897, notes 21 and 22. The Commission was created in 1974 by ECOSOC and given the mandate to prepare a code o f conduct for governments and T N C s Drafts were produced in 1978, 1983, 1988, and 1990. Consensus over the draft was never achieved and in 1992 the United Nations Centre on Transnational Corporations, Secretariat to the Commission, was dismantled and its functions were transferred to a new Transnational Corporations Management Division within ECOSOC. Johns, 'The Invisibility o f the Transnational Corporation', p. 899. Quoted in Johns, 'The Invisibility o f the Transnational Corporation', p. 896. Ibid., p. 900.
33
Non-State Actors and international Law Westphalian assumptions and their legitimacy
147
m i l l e n n i ~ m The . ~ ~ modern law merchant is a central mechanism for the globalization of disciplinary neoliberal norms. These norms, in turn, constitutionalize private ordering as the dominant regulatory ethos, thus conferring legitimate authority on private business enterprises. Paradoxically, while corporations are central players in this restructuring process, linking global and local political economies, they remain invisible as 'subjects'. The de jure insignificance of corporations in the face of their de facto significance reflects a disjunction between theory and practice. In the context of the problem of the 'subject,' it marks a disjunction between law and state, for the law has ceased to constitute, mirror and, in some cases, to discipline its 'subject,' the state and state practice. The 'subject' has in fact, been reconfigured in the legally 'invisible' form of the transnational corporation. This portends a legitimacy crisis for both law and state.
The disjunction between theory and practice: a crisis of legitimacy All constitutional orders require some degree of fit between their principles and practices. Whether one focuses upon the symmetry between law and practice ' ~ ~the 'convergent expectations' of the participant^,^' through 'rules of r e c o g n i t i ~ n or the legitimacy of a constitutional order is associated with some measure of conformance of the actual practices of participants with its founding legall constitutional theory and principles. A disjunction between constitutional theory and the practices of participants, more often than not, portends a crisis of l e g i t i m a ~ yWhen . ~ ~ the participants fail to recognize the legitimacy of law through their practices, the law's claim to authority is challenged and potentially undermined. In international law, state practice is regarded as one of the main sources of law, another source being international treatiesn9 Traditionally, state practice constituted the state as the 'subject' of the constitutional order. However, we have argued that increasingly state practice is reconstituting the de facto 'subject' in the form of the transnational corporation. However, legal theory has not kept in step with this changing practice. The resulting disjunction between legal theory and state practice is part of a larger disjunction associated with globalization more generally. As Philip Cerny observes: ... globalization leads to a growing disjunction between the democratic, constitutional, and social aspirations of people-which continue to be shaped by and understood through the framework of the territorial state--and increasingly problematic potential for collective action through state political processes. Certain possibilities for collective action through multilateral regimes may increase, but these operate at least one remove from democratic accountability. Indeed, the study of international regimes is expanding beyond intergovernmental institutions or public entities per se toward 'private regimes' as critical
86
87 88 8y
See Cutler, 'Global Capitalism and Liberal Myths'. H. L. A. Hart, The Concept of l a w , 2nd edn. (Oxford: Oxford University Press, 1994). Stephen Krasner (ed.), International Regimes (Ithaca, NY and London: Cornell University Press, 1983). A good example of a legitimacy crisis could be found in the former Soviet Union in the context of constitutionally protected human rights that were in practice quite meaningless. Art. 38 of the Statute of the International Court of Justice.
34
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A. Claire Cutler
regulatory mechanisms. New nodes of private quasi-public economic power are crystallizing that, in their own partial domains, are in effect more sovereign than the state.90 The disjunction between law and practice is not lost on corporate actors. Indeed, a transnational corporate elite is pushing hard for the establishment of a global business regulatory order.91 But it is an order of a particular sort-one consistent with a renewed emphasis on neoliberal values concerning the superiority of the private ordering of global corporate relation^.^' Global corporate actors are not trying to discipline corporate activities. They resist developing methods for the international incorporation of companies, and the ancillary reporting requirem e n t ~ . ' The ~ MA1 was not intended as a mechanism for enhancing corporate responsibility, but as a means for limiting the restrictions that national governments could place on foreign ~orporations.9~ Indeed, together corporations and states are reworking the nature of the relationship between states and business enterprises as part of the reconfiguration of the 'welfare state' as the 'competition state'.95 This reconfiguration is in part a response to intensified global competition brought about by forces of economic globalization and competitive deregulation and liberalization. Increasingly states are functioning as market participants, blurring the separation between private and public authority and agency. In corporate law, this trend is evident in the competitive deregulation of corporate activities. Robert Cox argues that '[nleoliberalism is transforming states from being buffers between external economic forces and the domestic economy into agencies for adapting domestic economies to the exigencies of the global economy'.96 The enhanced authority of transnational corporations is a significant element of this transformation, for they mediate between local and global political economies, facilitating the mobility and accumulation of capital. In so doing, they function as crucial bearers of neoliberal discipline, enhancing the power of private capital. However, the enhanced power of private capital is rendered 'invisible' by liberal theories of international law and organization. This portends a legitimacy crisis that is empirical, theoretical, and normative. From an empirical point of view, the law governing international legal personality tells us very little about the nature of the corporate world, the authority wielded by corporations, or their complex relationships with states, both national and foreign. Theoretically, international law is unable 'Globalization and the Changing Logic of Collective Action', International Organization, 49:4 (Autumn 1995), p. 618. See Johns, 'The Invisibility of Transnational Corporations', p. 896; Detlev Vagts, 'The Multinational Enterprise', p. 764. This is evident in the terms of the MAI, which restrict the regulatory ambit of states over foreign investment activities and in the shift in corporate legal preferences for 'soft law' agreements over 'hard law' ones. See A. Claire Cutler, 'Public Meets Private: The International Unification and Harmonization of Private International Trade Law', Global Society: Journal of Interdisciplinary International Relations, 13:l (January 1999), pp. 2 5 4 8 on the appeal of soft law norms governing international commercial contracting. See above, note 56. For a review of the provisions of the MAI, see Frans Engering, 'The Multilateral Investment Agreement', Transnational Corporations, 5:3 (December 1996), pp. 147-61. Philip Cerny, The Changing Architecture of Politics: Structure, Agency and the Future of the State (London: Sage Publications, 1990), p. 230 and 'Paradoxes of the Competition State: The Dynamics of Political Globalization', Government and Opposition. 32:2 (Spring 1997). p. 273. 'Critical Political Economy', in International Political Economy: Understanding Global Disorder, edited by Bjorn Hettne (Halifax, Nova Scotia: Fernwood Publishing, and London and New Jersey: Zed Books, 1995), p. 39.
Non-State Actors and International Law Westphalian assumptions and their legitimacy
35 149
to theorize about its 'subject' in any but the most formalistic and artificial ways. The corporation is under-theorized, while the state is over-theorized. Finally, and probably most importantly, the normative implications of the problem of the 'subject' are obscured by the same moves suppressing the corporate subject. The problem of corporate accountability is concealed by avoiding the questions of 'who or what produces law?', 'what are the political conditions for legitimate agency in the creation and enforcement of law?', and 'who legitimately determines outcomes in the global political economy?' The very same doctrine that constructs the transnational corporation as an 'invisible subject' blocks the abilities of individual citizens to challenge corporate behaviour because such challenge must run through the agency of the state. In 'guaranteeing the economic res puhlic for capitalism', states are causing shifts in power relations within and between states.97Robert Cox refers to a 'decomposition of civil society,' in terms of 'a fragmentation of social forces and a growing gap between the base of society and political l e a d e r ~ h i p ' He . ~ ~identifies the alienation of people from their political institutions and a loss of confidence in the abilities of politicians to deal with contemporary problems as contradictions generated by globalization. To Cox, 'globalization has undermined the authority of conventional political structures and accentuated the fragmentation of s ~ c i e t i e s ' . ~ ~ Stephen Gill reminds us that 'the question of globalization raises the issue of globalization for whom and for what purposes'.i00 Echoing Cox's view that theory always serves some purpose, Gill notes increasing social polarization, 'a sense of political indifference, government incompetence, and a decay of public and private responsibility and accountability', as aspects of the contemporary crisis.10iThe basic contradiction between globalization and democratization portend a legitimacy crisis wherein 'the ruling class has lost its consensus, i.e. is no longer "leading" but only "dominant" ... The crisis consists precisely in the fact that the old is dying and the new cannot be born.'Io2 The 'problem of the subject' is so deeply embedded in international thought that it creates a blind spot of changes in practices resulting from changing material conditions. Moreover, neoliberal ideology compounds the problem by reasserting the values of enhanced private authority and the continuing significance of the distinction between the public and private spheres. Liberal thinking works against recognizing the authority of private corporations. The liberal faith in free economic markets and in representative democracy presents barriers to conceiving private relations or entities as politically authoritative or representative. Recognition of the transnational corporation as 'subject' is thus 'inconsistent with the liberal belief that the processes of democratically-elected government ought to be the only legitimate means of curtailing individual liberty'.lo3 Liberalism and public notions of authority thus preclude the recognition of corporate legal personality. They are incapable of conceptualizing de jacto corporate authority and A
A
Leo Panitch, 'Rethinking the Role of the State', in James A. Mittelman (ed.), Globalization: Critical Reflections (Boulder, CO: Rienner, 1996). p. 86. 98 'A Perspective on Globalization', in Mittelman (ed.), Globnlizcrtion,p. 27. 99 Ibid., p. 27. loo 'Globalization, Democratization, and the Politics of Indifference', in Mittelman (ed.), Globalization, n. 205. ihid., p. 206. IUZ Antonio Gramsci, Sclcctionrfrom the Prison Notebooks, edited by Q. Hoare and G. Smith (New York: International Publishers, 1971), pp. 275 6. Io3 Johns, 'The Invisibility of Transnational Corporations', p. 913. 97
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A. Claire Cutler
control, for this would upset the logic of the liberal representative state and consentbased notions of international law. Moreover, such recognition would threaten the state as the 'subject' of international law and, hence, challenge law's claims to objectivity, neutrality and legitimacy. In a word, the recognition of corporate personality comes up against the problem of the 'subject'. Moreover, disciplinary neoliberalism reinscribes the problem of the subject as a seemingly objective and, ultimately, legitimate state of affairs that is removed from individual challenge. This suggests that for international law there is only one story and one problem. 'The story is the story of formalism and the problem is the problem of the subject. The story of formalism is that it never deals with the problem of the subject. The problem of the subject is that it's never been part of the story.'lo4
'"
Schlag, 'The Problem of the Subject', p. 1628.
(I Can't Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors Jan Klabbers*
Introduction In the great scheme of international legal thmgs, a most prornincnt place is reserved fox subjects docuine: subjects, one might say, fonn the clearing-house between sources and substance. The actual rights and obligations emanating from treaties, custom or other sources (in short: which result from somc form of political agreement) are distributed through notions concerning participation in the international legal system. At least in the greater scheme of things.' Yet, its importance in principle notwithstanding, subjects doctrine comes with remarkable uncertainties, perhaps due to the fact that subjects doctrine only arose once it became clear that there was a need for it: in a world of only sovereign states, there was fairly little that subjects doctrine could possibly occupy itself with: except
of International Law, University of Helsinki. In a similar vein, if more broadly discussing process doctrines, David Kennedy, Intematiod J2gd Srtuctxm (Nornos: Baden-Badm, 1987). 2 There is little on subjects, e.g., in the works of 19th century scholar. Westlake; see John Wesdake, Tbe CofbctedPapm oflohn IEc'd~tIbkson Pnbh IntcmdionafLaw (Lassa Oppenheim ed., Cambridge University Press: Cambridge, 1914), except for a brief statement that subjectivity is granted by states (at 2). Van Eysinga, for his pact, approached the European river commissions not through a subjects prism, but simply as treaties concaking substantive rules. See W.J.M. van Eysinga, Ontwtfa*&lingM i n h d dcr Na&rLndrcbc trmtaten re& 1813 (hfardnus Nijhoffi The Hague, 1916) esp. at 6. It is only after the creation of the League of Nations that subjects doctrine comes up @owever hesitanrly) in a form AAlpeinc Lchn wn recognizable to today's lawyers: see, e.g., Rolf Knubben, Dia St&ekr ks Vifkrmch~: dcr voiht xnd b~zchrii~~ktct~ Rrchfs- mid Hm&ngrfdh@dt (Kohlhammer: Stutyart, 1928); see also John kscher Wdliarns, 'The Status of the League of Nations in International Law', in his Cbqbten prr C u m d ItttemationalLnv und thc Lnv OfhTations (I~ngmans,Green & Co: London, 1929) 477-500. ' Professor 1
38
Non-State Actors and International Law
for discussing the notion of the state and a handful of oddities such as the Holy See or thc Maltese Order.' Nowadays, however, there is little agreement among international lawyers about the identity of international law's subjects. While most will agree that states arc subjects of intemational law, it is not entirely dear what exactly a state is: there are problematic entities such as Taiwan or Palestine, and then there are so-called failed states which may nonetheless remain states, or territories under international adminisuation whosc prccise status is debated.4 By the same token, most international lawyers will agree that international organizations ate subjects of international law, but again there is less agreement on what constitutes an international organization: does the European Union qualify despite, as is often said, lacking legal personality? Does the OSCE qualify, despite being kept, ostensibly at any rate, outside the realm of intemational law?5 Does the European Community still qualify, or is it reaHy, as often contended, a sui generis entity? Moreover, beyond these basics, agreement rapidly dissipates: there is widespread and loud disagreement as to whcthcr companies, or belligcrmts, or indigenous peoples, or non-governmental organizations, can or should be regarded as subjects of international law, or to what extent they should be so regarded. Indeed, it is not even clear whether individuals should be so regarded, although there seems to be a growing tendency to do so." There is also remarkable little agreement on what being a subject of international law entails. Therc is thc more or less descriptive denomination according to which a subject is capable of bearing rights or obligations directly under international law? but whether all bearers of internauonal legal rights can also be regarded as subjects, or Yice versa, is debatable.
Note how I'erzijl would still trat thc 1,ea~wcof Nations and the UN as 'exceptional and unique ~ ~ c r s ~ n son " , 3 pw with rllc popc, bdligcrcnts atid inrcrnadonalizrd territories. Sec J.II.\V. \'crzijl, I11t2n1afiorralLawiu Ili~?oriia/Persprrtive (I0 vols, Sijthoff: L.eidm, 1969) vol. 11: Inrernaaonal Persons, at 3
303-305. Gormat~cein Post-Co@icf On the latter, scr gcncrallp Ouri Korhonen & Jutta Gras, Infemufior~u~ Sitnutiom (I:& Cast& Insdtutc: Iielsinki, 2001). j Sec generally Jan Nablxrs, 'Institutional .lmbivalcncc by Dcsigm: Soft Organizations in Inrcrna~ional I .aw', 70 Xor&]ormaL ofIt~terr~~cfio~ru/ Lau/ (2001) 403-471. O SCC,c.g.. Pcter hldanc.duk, .tkehur~~t:rModrnr Ir~tmt(r,ctiot~ to lntem~ntiona/h* (7th cd., Komlcdgc: London, 1997) ch. 6. ' So already Knubhn, Subjkte~t,mpra note 2, at 2. See also Bin Cheng, 'Introduction to Subjects of Intcrn3rional Law', in Mohammed Bcdjaoui (cd.), Ir~fcn~a~ior~uf Law: Achievmrertcs rmd Pmqecti (hiartinus Nijhoff: Dordrecht, 1991) 23-40, at 33.
Non-State Actors and International Law
(? Can't Get N o ) Recognition: SuLjecx~Doctrine
39
353
'She aim of thls paper is to have a closer look at subjects d~ctrinc,inspired mainly by the events of 11 September 2001. These, after all, provoked the awkward question as to how international law relates to terrorism in general and non-state terrorists in particular. What I will hope to illusuate below is that subjects doctrine is riddled with ambivalences, so much so that it may be doubted whether the law is capable of accommodating entities other than states in a convincing mannaR
Non-State Actors in International Law The events of September 11, 2001, have spawned a veritable cottage industry of international legal activities. Many a journal has invited scholars to write on assorted legal questions; many a law school has organized conferences to discuss those same questions, and newcomers to the discipline invariably end up asking those same questions from their professors. Did the attacks constitute an armed attack withn the scope of Article 51 of thecharter? Do they, perhaps, constitute a crime against humanity? Is the US respo&e'in Afghanistan a lawful exercise of self-defence, or is it best regarded as armed reprisal? And is Afghanistan the proper target to begin with? Should terrorists be granted the protection of international humanitarian law or even of human rights law? Those are, to be sure, important questions, yet somehow it would seem that perhaps the main point of September 11 gets lost amidst all the detail. That main point seems to be the point that September 11 demonstrates just how outdated the system of international law has become, and has allowed itself to become. It is not just a matter of September 11 forung a new regime on peace and war, as has been suggested9 (although this too is of importance), or of forcing us to rely more on general principles of international law as has also been suggested.10 Instead, there is something far more fundamental at play, and that is t h e very structure of the international legal order.11 Many of our international legal concepts, so September 11 suggests, are no longer able to deal with present-day developments, and the main B A critique of a different nature, focussing on the concept of personality through an exercise in legal history, is David J. Bedesman, The Souls of International Organizations: Legal Personality and the lighthouse at Cape Sparte)', 36 ViqmaJonmalofIn~ah'ona/Larv(1996) 275-377. 9 FrMCric M e t , "War"? Legal Semantics and the Move to Wolence', 13 Evmj~arrJonrnaf of ht6r)lodonafh(2002) 361-399. '0 See Antonio Cassese, Terrorism is Also Disrupting Some Crucial Legal Categories of Internarional Law', 12 European Journal ofIntemational Lmv (2001) 993-1001. This is a theme not often touched upon A rare exception is Florian Hoffmann, Watershed or Phoenix from the Ashes? - Speculations on the Future of International Law after the September 1 1 Artacks', 2 Gcnnan Lm, Jownaf (October 2001), at <www.gexmadawjournal.com~ (visited 23 July 2002).
40
Non-State Actors and InternafionulLaw
Jan Klabbers
cause is that international law has failed to seriously incorporate non-state actors into its framework. September 11, of course, is not the first illustration of how international law can only problematically be applied to activities involving actors other than states. The emergence of international organizations was accompanied by great debates about whether organizations could conclude treaties12 and whether they could bear responsibility under international law.13 Lengthy debates have raged on how agreements concluded between states and companies could best be classified,'4 with some arguing vehemently that such agreements could not be treaties for only sovereign states can conclude treaties.15 The same question, incidentally (and many of the same answers) keqis recurring whenever a liberation movement or a belligerent faction concludes some sort of agreement1" And as recent as 1994, a New York District Court dismissed a case against Radovan Karadzic on the ground that Karadzic's Bosnian Serbs did not constitute a state and therewith remained outside the scope of international law." Although this was overturned on appeal, the appellate decision demonstrates simiIar classification problems by treating the activities of the Bosnian Serbs in part as simply individual activities, and in part as activities of a state (albeit an unrecognized one) and possibly done in collusion with another state: the leftovers of the former Yugoslavia.'B Either way, what emerges is a picture of conceptual helplessness: confronted with nasty behaviour from entities that are not generally to be considered states, the law runs into problems. It is one thing to create rights for non-state actors, and doing so requires no special justificati~n.~g Yet, to impose obltgations directly on
'2 See, e.g., Catherine Brolmann, 'A Flat Earth? International Orbmnizations in the System of (2001) 319-340. InternationalLaw', 70 NordicJo~m~~J./In&n~&onafLaP, 13 Something which as late as the 1950s was still inconceivable. See, eg., Clyde Eagleton, 'International Orbanhation and the Law of Rcsponsibility', 76 RccnciJo'es Courr (1950/1) 319-425. 14 See pmxally Esa Pawivirta, Participafiorr ofStutts in Intenrational Covtracfs (Finnish Lawyers' Publishing Company: I.lelsinki. 1990). 13 Solc arbitcr 11.-J. Dupuy in Tesam v. L'&nn Arab Itep~~blic ((mcrirr), 53 LtentafiotralLIW Rtpottr 472, xt 473-474, para. 66. 16 See, c.g., Paola Gaeta, 'The Dayton Agreements and International Law', 7 European Jottnd o/ lnternationallmv (1996) 147-163. 1' &ILL, v. Kurud
Non-Stare Actors and International Law (ICan't Get ATo)Recognition: S~bjetsDoctrine
41
355
non-state actors, to submit them to the authority of international law, is quite another thing, and docs require a justification of sorts, if only for the sake of legitimacy. The same conceptual confusion emerges from the events of September 11.
Indeed, many of the questions listed above are complicated only because of the circumstance that the attacks on the World Trade Center and the Pentagon were the work of a terrorist organization. Had September 11 been the work of a state, then dearly the attack would have qualified as an armed attack under the Charter, clearly triggering the right to self-defence,m and clearly activating international humanitarian law. It is the absence of an obvious state connection which causes our ir~tellectualproblems, not so much those activities themselves.
A State-Centric System It is a truism to say that international law has been, and is, a stare-centric system. Modem intemationd law, so often said to be a 'product of the 1648 Westphalia Peace, arose in conjunction with the modern state, and has been characterized ever since as a system regulating relations between states, by states, and for the benefit of states. While there has been a recurring but inconclusive debate on whether the real subject of international law is the individual, at the end of the day it is nonetheless clear that international law is a state-centric system.21 There are, most likely, some sound functional reasons for this state of affairs. The political scientist Hendrik Spruyt has plausibly argued that it is no coincidence that the state arose out of the middle ages as the dominant mode of social organization, rather than a Hansa-type league, or city-states.u One of those reasons, so Spruyt argued, was that by its exclusive control over territory, the state was in a unique position to guatantee that the promises it made could actually be lived up to. This suggests, in turn, an organic bond between the state and international law, a
NormGeneration and Norm-Application', 32 NN York U k m 3JowrnrJ ofZnkm@bnrrllav & PorFticr (2000) 537-566. m At least it is a different matter whether self-defence can still be exercised a few weeks after the attack occurred without stretching the notion of self-defence beyond its breaking point 2' Without addressing the international legal orderpr re, Bartelson observes that 'the emergence of the international mum be understood as lodcally linked to the emergence of the concept of the modem sovereign state'. See JensBanelson, A G ~ l l ~ f oofSopcn& gv (Cambridge University Press, 1995) at 209. For a brief conceptual history of the state, see Quentin Skinner, The State' in Terence Ball, James Faa: and Russell L. Hanson (eds.), Political Innovatior and Conr*plwal Cbmgr (Cambridge University Press,
1989) 90-131.
" See Hendrik Spruyt, Tk Sowmgn St& and ltr Co"Ipetiton (Princeton University Press, 1994).
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Non-State Actors and International Law ]an
fibbers
symbiosis perhaps: the existence of the state facilitates international law, whereas the very structure of international law facilitates statehood.23 It is no wonder then that states have done their best to secure for themselves a privileged position within that system of international law. International law is filled with small but telling illustrations thereof. Take, for example, the curious circumstance that when it comes to a document purporting to regulate treatymaking with international organizations,24 signature or ratification by those organizations has no relevance with respect to the document's entry into force. Or take the somewhat childish admonition that international organizations cannot ratify treaties but can only engage in acts of confirmation, on the theory that ratification is the prerogative of sovereigns,= or the equally Kindergarten-like daLn that the United Nations can not issue passports beca'use only states can; at best, the United Nations can issue a so-called kxis.se~-pmer.26 The state-centric nature of international law is also taken for granted in much writing about international law, even - and this is somewhat surprising - in some of the more futuristic, de kPgefCm& attempts to conswct or ground a different international legal order. Thus, Jonathan Charney's attempt to come to a 'universal' international law is, nonetheless, sdll a universal law between states: his main aim is upon states without their consent; to show why international law would be bin* not why it would be binding on entities other than states. Indeed, these are not even discussed." Mutatis mutaridis, similar considerations apply to the German 'school' focussing on the community interest: this community is still envisaged, by and large, as a community of stateseaAnd much the same applies to Anne-Marie Slaughter's
" Essentially thc sarnc point ir made .by Wolfgang Friedmann, Thc Changing Sttnctrrn ofIntcn~utio~u~nallmv. (Columbia University Press: New York, 1964) at 213, holding that states will remain the main subjccts of international law bccausc 'states are the repositodcs of lepjtimatcd authoricy over peoples and 2.' The 1986 \'ienna Convention on thc Law of Treaties between States and International Organizations or between International Orpnkations (Vienna, 21 March 1986, not yet in force) .\rtide 85, paragraph 1. I'hc tcxt is rcproduccd in 75 Itrtet'11a/iotraIL~uI:'Moterir1r5(1986) 543. 5 I b d , Articlc 14, paragraph 2 26 l'hc examplcs herc are gleaned from Jan Klnbbers, A n lntmriurtiou to It~tcmufoualIt~~tit~~tionul Low (Cambridge Univcrsity Prcss, 2002). 3 Scc Jonathan I. Chamcy, 'Univcrsal lnternational Law', 87 h ~ r i t u Jo~~rnal n of I~temutiondLcnv (1993) 529-551. 2 Sec, c.g., Christian 'l'omuschiir, 'Obhgations Arising for States Wthout or Against 'l'hcu Will', 241 Rerid der Co;m (1993/[\') 195-374;Jochcn :tbr. Frcwein, ‘Reactions by Not Directly Affected Statcs to Breaches of Public International Law', 248 Rrwkl das Cowrs (1994/I\') 345-438, and also Bruno Simma, 'From Bilateralism to Community Intcrest in International Law', 250 Renleil dv Coxr~ (1994/\'1) 211 -384. -1p d (and not overly satisfactory) exception is Bardo Fassbcndcr who, whiic continuing the mdition, devotcs one-and-a half pages of his lengthy essay to non-state actors. These
Non-State Actors and lnternational Law
43
(ICa~r't Get ATo)&cognition: SuLjects Doctrine blueprint of a liberal world: hcr world ton is world o f states in which othcr cntitics arc nor p e n a systematic place2"
An Illustration: Humanitarian Law .\s soon as othcr entities cntcr the picturc, international law starts to haw problems. Pcrhaps thc clearest illustrations hereof can be drawn from international humanitarian law. Humanitarian law wavers constantly betwecn mating thosc who fight for an entity other than a fully recognized statc as either lawful combatants or as common criminal^.^ This applies across the board, whethcr it concerns guerrillas, unorgmizcd hands, or rcrrorists: bccausc it is always possiblc to usc violcncc in thc scrvice of a good political cause, thc law cannot make up its mind as to whether those using violence are to be treated as lawful combatants or as criminals. Moreover, we generally have an ambivalent attitude towards politics: while we appreciate a certain degree of participation in politics, we seriously disWae it if people act 'for political reasons'. Perhaps Ed Morgan put it most succinctly when addressing terrorism: terrorism 'is both crime and politics, and is culpable o n both account~'.3~ O f course, this classification problem is by no means a novel problem, nor is the question of the origin of the binding force of humanitarian law upon non-state actors a novel issue: in a slightly different gmse they both caused serious headaches to those drafting the 1949 Geneva Conventions and the 1977 Additional Protoc0ls.3~ are bound by the UN Chartcr because, well, the Charter is constitutional. See Bardo Fassbender, The United Nations Charter as Consutuuon of the International Comunity', 36 Columlia Jountal of TratlsnorionalLnv(1998) 529-619, at 609-610. See Anne-Marie Slaughter, 'International Law in a Wodd of Liberal States', 6 European Jownaf of Z t t t ~ o n (1d995) ~ 503-538. 30 See Jan Klabben, 'Rebel with a Cause? Terrorists and Humaniwan Law', 14 E ~ m p a n Journal of Intemationa/Lm,(forthcoming 2003). See also Jama Petman's conmbution to this volume. 31 See Ed Morgan, 'International Law's Literature of Tenor', 15 CunadianJowrnul o f b and]wiprudcnn (2002) 317-324, at 324. Convention for the -4xnelioration of the Condition of thc ~ o u n d c dand Sick in Armed Forces in the Field, 75 United Natiom T W Seriu 31; Convention for the Amdoration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sca, 75 Uti:ttdNationr T n q S h s 85; Convention relative to the Treatment of Prisoners of War, 75 Unitrd nation^ Treaty Srricr 135; Convention relative to the Protection of Civilian Persons in Time of War, 75 UnitrdXafioonsT n q SericJ 287, all done in Geneva, on 12 August 1949, in force 21 October 1950. Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of \'ictims of International Armed Connicts (Protocol I), Geneva, 8 June 1977, in force 7 December 1978, UN Doc. h/32/144 (15 August 1977); and Protocol r\dditional to the Geneva Conventions of 12 August 1949, and
"
"
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Non-State Actors and International Law
Jan fibbers
Common Article 3 of the 1949 Geneva Conventions provides, as is well known, for the application of ce&n minimum standards of conduct during noninternational conflict. This provokes at least two important questions: How does common Anide 3 come to bind non-state entities? And, does it in any way affect the status of those entities? Common Article 3 aims to protect all parties to a domestic c o n h a and purports to be binding on all parties to a conflict; yet, it fails to specify how those provisions acquire their binding force on non-state entities. Non-state entities are not even supposed to express their consent to be bound, for this is only open to states. Instead, so the main argument seems to go, non-state entities become bound by virtue of the circumstance that their states are bound: the convediions become the law of the land upon ratification." This is open to two lines of critique. One is technical: conventions do not become law of the land everywhere; they only do so in domestic systems allowing for this to happen, somedung we usually refer to as monism." In more dualist oriented states, however, some act of transformation is required, which would mean that the conventions become bindmg upon non-state entities only by means of national law. But if this is so, then the entire purpose of common Article 3 is defeated, for it was precisely to offer protection beyond the whims of national authorities that Article 3 was devised.35 The problem, as the Commentary to the First Convention makes abundantly dear, was that governments would tend to consider their adversaries in domestic strife as common criminals, 'vu~aim mininek';M for this reason, the application of humanitarian standards should be taken -away from those national authorities.
Relating to the Protection of Vicdmr of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, in forcc 7 Dccembcr 1978.1125 United lvalions Tnaly Srnk 60. 33 See Jean Pictet (cd.), Commet~tyto the Secord Gewa Conventtor (ICRC: Geneva, 1960) at 31. While realizing that the explanation may not be completely satisfactoty, the Commentary adds, in an overly black-and-white tonc, that if an insurgent movcmcnt docs not apply humanitarian law, 'it will prove that those who regard its actions as mere acts of anarchy or brigandage are right.' 3.1 Whether the monist-dualist dichotomy makes much sense to begin with is a different matter. For an extensive critique, see \'eijo Heiskanen, I n t m d o r ~ / L e g dTopics (Finnish Lawyers' Publishing Company: Helsinki, 1992) 1-299. See also Jnn Klabbcrs, 'Inwrnational Law in Community I.aw: Thc IAW and Politics of 1)irccr t
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The second critique of the representation argument is morc structural: to arguc that non-state entities are by definition represented by their governments is implausible where the very raisan 8th of those non-state entities is to deny the representative nature of their governmenk. Surely, it is awkward to claim that the Kurds are represented internationally by Turkey or Iraq; surely, it is awkward to claim that the Kosovars are represented internationally by Yugoslavia; that the Chechens are represented by Russia, or that a movement like Unita is bound by humanitarian law for the simple reason that the Angolan p v c r m e n t may at some point have signed up to the Geneva Conventions. Moreover, it stops short when it comes to networks such as Al-Qaida, which have a presence across borders and whose leader, Osarna bin Laden, is most likely stateless. There is a second way in which common h i d e 3 of the Geneva Conventions has an impact on non-state entities. The final sentence of common hrticlc 3 is the result of an intensely political move: it provides that the application of common Article 3 'shall not affect the legal status of the Parties to the conflict7.This was, according to the Commentq, 'ej.renn'ef/e7:without this final sentence, no common Article 3 wouid have come into existence27 The point of the final sentence of common Article 3 is pretty much the opposite of the point of common Article 3 itself: where Article 3 is intended to ensure that insurgents shall have some special status?E the W sentence makes it h.ghly possible to do away with this special status. Indeed, the Comrnentaire, with obstinate ncxivetk, underlines that the final sentence makes dear that common Article 3 does not touch on the internal affairs of states, and does not in any way limit a state's right to repress a rebellion by all possible means including the use bf force. Indeed, so the Comentaite concludes, it does not at aU affect the right of the state to prosecute, adjudge and condemn its adversaries for their crimes, in accordance with its own law.39 The same problems re-appear with the two Additional Protocols of 1977. When it comes to the creation of obligations, Artide 96, patagraph 3 of the First Protocol offers non-state actors the possibility to express their consent to be bound in unilateral fashion. That looks like a feasible solution, but the unilateral declaration appears more attractive in theory than in practice.
And does indeed ensure this: designation of a dispute as an armed conflict 'confers a curious sort of ighrs in tbe Privae Spbm (Clarcndon recognition' on the actors involved. See Andrew Clapham, H m m R Press: Oxford, 1993) at 112. 39 See Pictet (ed.), Comm~nkaiirI, wpm note 36, at 65: V ne limite en aucune manike son droit de r+rimer m e rtbellion par tous les moyens - usage des armes compris - que sa propre loi lui fournit; il n'affecte en rien son droit de poursuivre, de juger et de condvnner ses adversaires, conformCment & sa pcopre loi, pow leuss uimes.' 38
46
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Jan fibber3
The main reason for this may well be that the non-state entity is only allowed to make such a formal declaration of acceptance on condition that the state with which it is in conflict is a party to the Protocol: the state thus still gets to determine the possibilities for the non-state actor to act, and whether eventually the Protocol will apply to the conflict. While this may be of little practical relevance (as quite a few states are parties to the Protocol, and nothing hinders the non-state entity from making a unilateral commitment), its sjmbolic value is significant: for the effects envisaged to become operative, prior state consent is necessary, even with regard to national liberal movements. Moreover, or consequently perhaps, not all that many declarations have been issued.40 Surprisingly perhaps, given the circumstance that Protocol I1 aims in part to regulate the activities of non-state entities, it does not spedfically include a possibility for those non-state entities to somehow express their consent or commitment. Joining the regime created by Protocol I1 is only open for states; there is no provision comparable to Article 96 of the First Additional Protocol. Of course, non-state entities may make unilateral declarations even in the absence of a specific provision to that effect, and following general international law, it may very well be that by rnakulg unilateral declarations those entities bind themselves on the international level.4' But the important thing is that no provision is made for n~n-stateentitics to in any way express their consent to be bound: in the state-centric system of international law, they are very much considered as secondrate entities. And on the point of recognition, Article 4 of Protocol I confrnns that application of the First Protocol 'shall not affcct the legal status of the Parties to the confict.' While apparently mcant predominantly to cover international conflictsp2 nonetheless it risks doing what common Article 3 of the 1949 Conventions 'does to
Recent information is difficult to come by: typically perhaps, the website of the International (:omnuttcc of thc Red Cnws (<www.icrc.org>, visited 30 Octobcr 2002) lists the states parries and signatory states, but docs not list any non-statc entides that may have dcdared to abide by ~ldditional Protocol I. As of June 1983, no liberation movement had used the facility, although sevcrd had instead filed unilateral declarations with the ICKC and, apparently, livcd up to clle promise. See Julio .I. Barbcris, 'Xouvellcs quesdons concernant la pcrsonnalitt? juridiiuc internationale', 179 Renrcil &r Coz~ti (198311) 1-15-30-1,esp. at 256-258. 4 .\s much foUo\vs from in pamculsr rlic Sr11./rur'I'mcaws (.\ustrah v. Francc, and New Zcaland v. l:rminccj, ICJ Kcports ( I F $ at 153 and 157. But scc the Cad iaair,.~~i~g h Frot~~id~' Dijpnie (Burk~ii~ Fmo/Rrptb/ic ofMob), ICJ Reports (1986) 554, in which the Court hcld that unilateral dcclamrions may not automatically bc presumed to create binding commitmmts if thcrc was a more obvious way to create such commitrncnts, for instancc through a negotiating process. See Yvcs Sandoz, Christophe Swinarski & Bruno Zimmennann (eds.), Cornrnc~tpon thr Mtioonal Prvtocolr of8 J I 1977 ~ to the Geneva Co~wrrcion~ of12 .;4wgzr 1919 (ICRC: Geneva, 1987) at 72-73. 40
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(ICan't G e t ATo) Recognition. Subjects D o c t r i n e
47 36 1
intcrnally tighting cnatics: it aims to dcpoliticizc the political. by somchow withholding formal recoption.43
Accommodating Non-State Entities? How then to overcome the state-centric naturc of international law and have an international law that adapts to the circurnstanccs of the day? 'l'he most popular solution in practice is to clcvate pretty much every non-state actor to thc status of subjcct of international law without thinking twice: broadening the circle of subjccts.4 While no one knows precisely what this means, at lcast it secms to snEcst that non-state cntitics arc takcn seriously: instead of excluding them altogether, they are embraced but, as noted, with a large measure of ambiguity: nonstate entities may be subjects of international law, but they are dcrivativc subjects at best, and have to remain content with second-class status. More importantly perhaps, h s reliance on the absorbing capacities of subjects doctxine hides from view the circumstance that the philosophicai niceties have yet to be worked out. Why, for example, is it that individuals can be under direct obligations in international law? To answer that this finds its explanation in the international legal subjectivity is merely to duck the issue: it did not satisfy the accused at Nutemberg, and it does not seem to satisfy Slobodan Milosevic either.45 Why is it that international law can claim authority over individuals, or over national liberation movements, or over multinational enterprises, or even over international organizations? In a domestic setting, the question of political obhgation is usually answered by reference to some form of social contract theory.46 Citizens banded together in order to protect themselves against evil from the outside, or so as to create a minimal workmg order guaranteeing their freedom, or so as to optimize their 43 The Second Additional Protocol does not contain a sitnilat &we, but is nonetheless based on the understanding that implementation of the Protocol 'does not coristitute recognition of belhgerency wen implicitly nor does it change the legal nature of the relations between the parries engaged in the conflict' See zbid, at 1344. See also Antonio Cassese, T h e Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts', 30 Infmatibnai @ Compm& Law @at-@$ (1981) 316-339. The more sophisticated contributions include Barbeds, Nouuehs questions, supra note 40, and [Iemann Mosler, 'Die Emeiterung des Kreises der VoUrerrechtssubjektc', 22 Zn'tsch$Jir a~sh~liiichcs bfc1rtk'cbe~Recht md V i k m c b t (1962) 1-48. 45 It is precisely this problem of political obhgation that Milosevic taps into when disputing the legibacy of the ICTY. a A usefd overview of contending theories is John Horton, Pofiiurl Obhgak'oon (lMachfillan: London, 1992).
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general welfare. Either way, they formed the state, they benefit from the state, and therefore they owe allegiance to the state. Whichever theory happens to be preferred, the main point is that at least there is something of a theory, more or less convincing perhaps, something of an explanation for the allegiance citizens owe to the states in which they live and for their duties to obey the law, at least in normal circumstances. International law, by contrast, has no such theory. No one has hitherto been able to explain why individuals owe allegiance to the international legal systernp7 and to the extent that explanations have been put forward, they invariably arrive at the conclusion that we owe allegiance to international law because our states have signed up to certain internati~naldocuments (the UN Chatter for some, the ICC Statute for others), and our states represent us at the international level. By the same token, it remains unclear why, for example, national liberation movements are supposed to adhere to international law generally. As with humanitarian law, often thc reprcscntation argument is made: liberation movements are bound if and when their states are bound. But this, as noted, ignores the rather crucial circumstance that the very point of a national liberation movement is to contest the legitimacy of that state. And then there are practical problems with simply extending the circle of subjects. For one thing, it may be next to impossible to figure out who is a certain people or minority, or who belongs to a liberation movement, and where to draw the line. It may be next to impossible, as the US response to September 11 seems to suggest, to draw any firm conclusions with respect to individual culpability. Indicative is that the net of sanctions has been cast extremely wide. Thus, cven if it could be argued, by way of example, that Unita is under internaaonal legal obligations,~through whatever mechanism, it still r&s to be scen how those obligations ought to be implemented, by whom they ought to bc implemented, and how they could possibly be enforced.43 In the absence of visible links between the group and individuals comprising the group, those questions may d e 5 easy an~wcrs.5~)
Indeed, few have tried: most often the question is simply not addressed. Sce, eg., Lyal Sunga, Inrliuidwd R e p n ~ i b i l i p in I~~fcrno~onaf LAW j r S m a u ~ffwrnan Rrgh~ Violafion~ @lassinus Nijhoff: Dordrecht, 1992). M u c h thc s m c applies to Clapham, Phufe Sphm, supra note 38. 4X L1nita,of coursc, has bccn on the rccciving end of UN sanctions sincc Resolution 864 (1993). 49 Leaving aside whether groups can be moral agents to begin with. On this, see Marlies Galenkamp, Indui&&zn vznw CoUrdiv~m:TThc Conqbf ofColIrcriYc &;4hf1 (Erasmus Universitcit: Rotterdam, 1993). 50 And this docs not cven begin to address the vexed issue of group responsibility. On this, see c.g. Lany May, Sharing Rc~ponribi@ (University of Chicago Press, 1992). 47
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Even with international organizations, presumably the most uncontroversial subiects of international law other than states, variations on those same questions keep coming back. 'I'hus, the collapse of the International T i Counul provoked a number of lengthy studies on the responsibility of international organizations and their member states under international law:' and it should not come as a surprise that the answers varied widely. Indeed, it is no coincidence that the topic has made it to the agenda of the International Iaw Commission. More generally, as Rrolmann has concluded in a string of fine articles, there is a structural problem: organizations simply do not fit in rhe framework of state-cenmc international law without some awkward pushing and shoving.52 In this hght, not too much ought to be expectcd from recent pleas to recognize for instance non-governmmtal organizations as subjects of international law.5Wot only do no specific rights or obligations follow from subjectivity (instead, it is the existence of those nghts or obligations themselves which determines whether an entity can meaningfully be addressed as a subject of the law), but, of more practical importance, a designation as subjects will not guarantee a nice fit into the international legal system. . W the broaden& of the circle of subjects constitutes doctrine's most popular response to the emergence and increasmg relevance of non-state entities, at least one other attempt to come to terms with non-state actors can be identified: the Traction case, of the concept of the eqa omne launch, in the 1970 BUTCC~M obligation." This too did not work. While the ICJ aimed to cast elementary moral concerns into a form recognizable by the law in order to overcome traditional concerns of state-centrism and consensualism, it found a year later, applying its
51 Sce, eg., Rornana Sadunka & Christine Chinkin, The Collapse of the International T i Council: A Case of State Responsibility?', 30 V i @ n i a ] o d ofln&matioorrol Lmv (1990) 845-890; Matthias Hartwig, Die Hafirrng Ifcr Mitgic&trratmfirintanariorralc O ~ a t i o n n (Springer: r Berlin, 1991); Moshe Hirsch, Thr Repnsibi(i~of Znteniatiod O p p i ~ a t i otowmd ~ ~ Third Punks: Some Basic Print+ (Kluwer: Dordrecht, s nh i t 1995); Pierce Klein,b renrponsaMk'dcr o@rrhorrr intemuionaJes dmrz b ordnsjmdiq~esi ~ m t c et rkrgms (smylane Brussels, 1998), and Rick Lawson, Hct EVRM Enmpc G m G r m m c h p p(Kluwer: m Deventer, 1999). See Cathedne M. BrBlmann, The 1986 V i a Convention on the Law of Treaties: The History of Draft Article 36bis', in Jan Klabbas & Re& Lefeber (eds.), Essqs on tbc Lav of Tdrs: A CoUedon of Essqs in Honour ofBert V i g (Martinus Nijhoffi The Hague, 1998) 121-140; Catherine M.Brolmann, The Legal Nature of International Organisarions and the Law of Treaties', 4 h h n Reuim of Zn~r~rtior~land Empan Lav (1999),85-125; see also Brohnann, 'A Flat Earth', srgbra note 12. "3 For a fine and useful survey, see h - K a r i n Lindblom, The Legal Status of Non-Governmental Organisations in International Law', doctoral thesis; Uppsah Univenitet (2001). Case mncctning tbe Bmnlona Traaion,Light d Power Conpay Linitd (Bclgiun v. S@n) (Srrnd Pharr), ICJ Repom (1970) 3, at paras 33-34.
50
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Jan Kkabbws
concept in the Namibia opinion, that really the concept was unworkable:55 while the Court used the q a omnes obligation to justify the imposition of an obligation on non-UN-members, it could only do so at the cost of the strength of the rule violated% Still, the concept of the eqa omnes obligation was an audacious attempt to come to tenns with the expansion of relevant actors in international law: it is no coincidence that the concept was launched in a case which centered around the question of the status of companies. During what were, in retrospect, the heydays of subjects doctrine, the Court must have had.a lulgering sentiment that at some point in time it would have to address the question of how to incorporate non-state actors: Bmccl'ona Traction, given its problernatique, seemed a nice testing ground for the launch of a concept aspiring to bring basic moral considerations into international law.57
Between Necessity and Recognition Why, one may ask, does it prove to be so difficult, even controversial, to incorporate non-state entities into the framework of international law? The main intellectual problem bedeviling subjects doctrine is that is his to serve two masters at the same time. On the one hand, it must, like the more specialist doctrines concerning recognition of states, do justice to practical political concerns. It seems obvious that the Palestinian problem, for instance, can only be solved (if at all) with the participation of the PI,O, so somc room must be fo'md in'the intixnational legal system to accommodate the PLO and recognize its acts. By the same tokcn, practical transboundary problems mostly demand international cooperative efforts, implying that entities working on those problems may need to find a place in the international legal system. And war crimes, as the International Military Tribunal at
bga/ Cot~~cquet~ns for S#ej of the Corrtind Pmvnce of Sontb Africa in .Y'mnibia (South Vest @rica) Sot~yith~~tandilg Smirip C o u ~ Rz~vhttior~ d ,776 (1970), .\dvisor). Opinion, 1CJ Repons (197 1) 16. 1;or more Jetads, see Jan Klabbers, T h e Scope of International 1aw:Erga O ~ I CObligations I and the Turn to Morality' in Matti l'uparndci (ed.), fiber A m i t o m Btng Bmms (Finnish IL4 Branch: Helsinki, 1999) 149-179. '5 It is no coinadencc that most work on crga omnu obligations seizes upon the moral character of candidate norms, with some suggesting that there is no real distinction between law and morality. See, e.g., Maurizio Ragami, Tbe Cotlcrp/ offtrtematiotmf'Obk~arionsEga Omncs (CIarendon Press: Oxford, 1997).
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Yuremberg famously held, are committed by ind~lduals,not by abstract entities3 In short, thcre is an incentiw to accornmodatc non-state cntitics, in order to do justice to considerations of necessity, real or pcrceivcd.j~ On the other hand, the pte-keepers of the system have every reason not to elevate newcomers to their own level. States have every possible incentive to treat non-state entities as, somehow, of lesser rank, otherwise, states would lose thc prerogatives they have. Moreover, there are entities whose subjectivity docs not sccm to dcpcnd on considerations o f ncccssity: the Holy See is a possible example, the Maltcsc Order another. More generally, necessity is itself of course far from uncontested. It is no surprise then, that with some entities the explanation comes to rest not with necessity, but with recognition or acceptaxe.'*' It could hardly be otherwise, precisely due to the political nature of the type of situation which may g v e rise to a nccessiq--argument to begin with: surely, so !srael rmght argue, the problems in the middle east could easily havc been solved if it wasn't for the existence of the PLO. Thus, to elevatc the PLO to the status of subject of international law only aggravated the situation; therefore, the PLO's subjectivity should ncvcr havc been rccognizcd. As the example suggests, the two seemingly opposing arguments cnd up lapsing into one another. A necessity argument can be countered by an argument based on (lack of) recognition, and thus needs to incorporate recognition in order to survive; an argument based on mere recognition, on the other hand, is always vulnerable to the argument that even if an entity has been recognized as a subject, such was never really necessary to begin with or, more importantly perhaps, to the consideration that even non-recognized entities do play a role, and sometimes an important one.61 With respect to unrecognized states, Okeke sums it up neatly, if 58 See the Juq'grnent offbe I~~ternll~lonal M i l f a g Tribrnaljr #be Trial of Genna?~Major War Criminalr, Cmd. 6964, at 41; available at ~www.yale.edu/lawweb/avalon/imt/proc/judn.hm>(visited 1 December
1002). Necessity underlies much of the argument in C.N.Okeke, Controvrniol Su&ects oflltttentahad LaPr (Rotterdam University Press, 1974). See also Friedmann, Changing Stnuhm, s q r a note 33, at 218: denying subjectivity to international organizations 'would be to freeze international law at a level corresponding to a past phase of international society, to deny it the capacity for growth . . . to a complex pattern of modern international relations, in which the need for co-operation in certain senices plays an ever increasing part'. 60 Okeke's discussion of the subjectivity of liberation movements, cg.,focusses almost exclusively on recognition. Okeke, Conhowniaf Su&& mpra note 59, ch. 6. Note also thar Nlugenva's discussion of subjects slips into a lengthy discussion of recognition. See Nkambo Mug-, 'Subjects of International Law', in Max Sorensen (ed.), M a n d ofPgbLc InternaftonuiLnv (MacMiUan: London, 1968) 247-310. See generally also Stefan Talmon, Ramgnidon ofGommentr in I n t e n d ' o d b w with PalalamlorRCfCmncc t o Govementr in Ewik (Chrendon Press: Oxford, 1998). 39
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bluntly: 'The conclusion should be that unrecognized states are states and that consequently they have the capacity to conclude treaties, in short they have international legal personality.''12 The International Court of Justice too has been wavering on the issue. In its classic R@mationfor I#mts opinion, it started its analysis of the international legal personality of the UN (which it seemed to treat as synonymous to subjectivity) by proclaiming that '[tlhe subjects of law in any legal system are not necessarily identical in their nature or in the extent of their aghts, and their nature depends upon the needs of the community.53 Here, then, the Court clearly stressed necessity-consideratiom. However, the subsequent analysis moved away from necessity pure and simple, and instead focussed more on other concerns. The Court highlighted that the UN had been created and had been given certain functions or powers by its member states, and was aaing in ways which only made sense on the basis of a presumed international personality." This then was no longer necessity as such, but necessity as shaped by the intents and desires of the member states, and as accepted by them and even, as the Court suggested in a different passage, by the world community at large.65 Sirnilat problems arise even with respect to the seemingly dearcut issue of individual criminal responsibility: it may be true that wa? crimes are committed not by abstract entities but by individuals, but nonetheless those individuals often act as of and on behalf df a group. While there is a need to come to t-s with individual @t, it may also have to be conceded that individual evil may merely be, as Hannah Arendt famously put it, 'banal',a.with the real-culprits being either governmental policies, or conspiracies, or super& officers, or a combination of the Okekc, Confmwrsiaf Su@ect~,swpra note 59, at 104. likewise, Bot concludes that substantively, recognition map 'dwindle to a neglidblc factor'. I lowever, on the procedural (or symbolic, perhaps) Icvcl, recogmidon is still important. Scc H.H. Bot, ATort~c~tirior a d Tmap Rch~iotu(Sijthoff: Ixidcn, 1968) at 246. 0.' Rcparatiottfor lyUrie>. S@end iu thc Stmice oftbe United Natiorrr, Advisory Opinion, ICJ lllcports (1949) 174, at 175. Ibid, at 179. 65 'fl]Bc Court's opinion is that fifty States, representing the vast majority of the members ofOle international communir)., had thc power, in conformity with international law, to bring into being an entity possessing objecave international personaliry, and not muely personality r e c o p r e d by rhcm alone', ibin., at 185. Note that the Court does not speciFy whence objective personality springs; see Jan Klabbers, Tresumptivc Personality: The European Union in Inremarional Law' in Nami Koskenniemi (cd.), I~~fen~utionul Larv AJ~CCIJ. oftbe E ~ m p c a tUnion ~ (Kluwer Law Internaaonal: The IIabwe, 1998) 231253. 66 Sec Hamah k n d t , Eirhman~ritl Jemafcm: A h p o r f otr fbe h a & of Evil (first published 1963) (Penpin: London, 199-1). 62
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above. Individual responsibility lapses into group responsibility, or into command rcsponsibility.~~ 'l'he only way out, it would scem, is to turn the debatc on thc incidcncc of subjcctivity into one on the merits of subjectivity. Where a discussion on whether entity X qualifies as a subject of international is inconclusive, the next best thing is to start to argue that subjectivity as such does not entail any automatic rights or obligations anyway, and indeed this argument inevitably comes up in subjects discoursc.(fi 'The International Court of Justicc hcrc too made its mark. in the abovementioned REpararation nfor injr/rics opinion, after having observed that the UN was to be regarded as a subject of international law, the Court confirmed that as such, this may not mean all that much. The Court was clear in suggesting that personality did not mean that the UN was a state, much less a super-state.@Instead, while states possess 'the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend on its purposes and functions as specified or implied in its constituent documents and developed in practice'.70 Perhaps as a result, the literature demonstrates a markedly inductive approach, approaching subjects docuine by looking at the rights or obligations of various entities. If taken seriously, this can only mean that there is no particular legal advantage to be gained from being regarded as a subject of international law. If subjectivity says nothing at all about rights or obligations, then why insist on subjectivity? If one need not be a subject of the law in order to perform legally valid acts; if, instead, the very performance of those acts indicates subjectivity, as is often suggested, then what is the point? The only conceivable point, then, if no rights or obhgations flow from subjectivity per se, is that being regarded as a subject of international law is a shorthand way of describii that an entity has found recognition from within the international legal system.71 Subjectivity entails that a degree of legitimacy is
67 For a further exploration of these issues, see Jan Klabbers, "fie Spectre of Intemational C& Justice: Third States and the ICC' in Andreas Zknmtrmann (ed.), In&ma/iond CriminaI LAW a d #be Gmat Dmkpmmt ofPnbhIntrrmrdonrJLav (Dundrer & Humblot: Bulin, 2003) 49-73. 68 See, cg.,Okeke, Contnmm'JSniycctr, szpa note 59, at 73: 'wherever there are nghts and obhgations, there is a person or subject of such rights and oblqptions'. 69 Rrpadonfirr I + i e s , snpra note 63, at 179. lbid, at 180. AS Bartelson puts it with respect to states: 'A sovereign state acquires part of its identity from being recognized sovereign by other states: a state without nplttclfio is not a state in the eyes of other states, and hence not qualified to be a political subject' See B d s o n , A Grncolog, mpra note 21, at 165 (emphasis in original).
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Jan fibbers
bestowed upon entities; it recognizes that their existence is somehow considered useful, desirable, or simply opportune; given this circumstance, it is only logical that considerations of utility, necessity or opportunism enter the picture. And given this circumstance, it is only natural that subjectivity is seen not just as the result of rights and obligations, but also as constitutive of those rights and obligations: you can only have rights and obhgations whcn you are a subject of international law, and you can only be a subject of international law when you have rights and obligations under international law. Subjectivity is, in terms borrowed from recognition discourse, both declarative and constit~tive.~~
Concluding Remarks With the above in mind, it seems hardly coincidental that we keep on struggling about the proper place of NGOs in the international legal order, or of individuals, or of behgerents, or companies. On one level, they are increasingly incorporated, and the usual means of incorporation are to create obligations for non-state actors or (more regularly) rights under international law. Thus, individuals enjoy human rights, and may have to answer to international criminal law; companies may, on occasion, use international tribunals (the EC Court, the ICSID, arbitration), but are expected, somehow, to respect human rights, either voluntarily or involuntarily; international organizations and some others (belligerents, liberation movements) can even. conclude treaties if and when circumstances so require; and NGOs are increasingly granted access to negotiating tables. Yet, creating rights and dbligations left, right 'and centre, however useful perhaps in itself, does not add up to the sort of paradigm shift that international law might nccd in ordcr to truly accommodate mtities other than states. Indeed, it may even backfire, in that without a clear grounding, those non-state entities may always rcject the authority international law holds or claims to hold over them. It remains unclear why Unita would havc to rcspect UN-ordained sanctions; it remains unclear why hfiloscvic would havc to pay rrepcct to thc ICTY. And as long as this remains unclear, we should not be overly surprised that war crimes keep being cornrnined, that rebels hold entire thcatres hostage, and that terrorists keep twrorizing. A legal system which treats actors as second-rank citizens should not bc surprised that thosc sccond-rate citizens d m to upgrade their status, and the shortest rourc to And those also l a p into onc another, as Koskenniemi has o b s e n d some rime ago. See X l d Koskenniemi, Fmm Apology to Utopia: The Stmctun of I~~tcrnational Lrgal Argrcme~~t (Finnish Lawyers' Publishing Company: Helsinki, 1989) 236-245. . '2
Non-State Actors and Iizternational Law (ICan't Get No) Recognition: S~~bjeccts Doctrine
55 369
being hcard and being taken scrictusly is through violmcc. Perhaps Skurbaty put it most forcefully when dscussing terrorism: T h e crucial difference betwecn state and non-state terrorism lies in the available repertoire of tactics and the degree of control of the propaganda and enforccrnent machinery. Whereas State terrorists havc a wide range of policy options, wield power, control and authority - and can control. for example, the intclhgence scnicc, thc a r m y , the policc, thc sccrct police, ctc.- and can rvcn formally legitimize its [sic] tcrror, non-statc actors usually use acts of terror as their last and only rcson73
In short, subjects doctrine displays highly political characteristics, which rcndcrs it unlikely that subjects docmnc will come to accommodate nun-state entities without further ado. This should comc as no surprise: as notcd culicr, subjccts doctrine forms the clearing house betwccn sources and substance: it is through subjects doctrine that the international allocation of values takcs place, and as any political scientist knows, the authoritative allocation of values is one of the main political functions.
3 See Zeiim Skurbaty, Rr I f Pcopks Mutbmd (Martinus Nijhoff: The Hague, 2000) at 145 (emphasis omitted).
The Emergence of Non-Governmental Organizations
and Transnational Enterprises in International Law and the Changing Role of the State Daniel Thiirer' In recent years, the international system and, as a consequence, the system of international law has changed considerably due to the emergence and activities of various non-state actors such as non governmental organizations (NGOs) and transnational enterprises . These new global and transnational entities may not yet have reached the stage of being fully fledged subjects of international law, but they certainly contribute to creating a "social milieu" or"arnbiancen (Dietrich Schindler sen.)' in international life out of which new legal structures and entities may grow. The international system has therefore been given new functions with which it has to deal. With the changing nature of the international legal order, the rore of states has been transformed and is still being transformed. Has it declined under the pressure of events? Or have states, in this whole process of evolution, rather gained in weight and profile as the "trustees" of those tasks which are inherent in the concept of statehood under modem intemational law? These are the questions I would like to deal with in this essay. Given the sweeping nature of our theme I have chosen to divide our subject up into the following three parts. First, it would be useful to define the concept of the state in modem international law in order to set a frame of reference against which its supposedly "changing role" can be measured. Second, we shall deal with the emergence of new transnational or global legal entities - i. e., NGOs and transnational enterprises which, it is submitted, represent the main factors and forces which are leading to the changing nature of states. Thirdly, an attempt is made to evaluate this new situation from the perspective of present intemational law and to inquire if and in what manner the international legal order needs to be reconceived, redefined or reshaped in light of the abovementioned developments.
* Professor of Law, University of Zurich, Switzerland. I thank Ms Marie-Ursula Kind, lichr., LL.M. (Cambridge), Attorney-at-Law, for her very valuable assistance. 'DietrichSchindlersen., Verfassungsrechtund soziale Struktur, 5th. ed., 1970,92 et seq.
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A. The Notion and Shape of Statehood in Modern International Law We shall start our considerations with the question as to what sovereign statehood means in public international law. In approaching this problem I shall make some remarks concerning the nature and notion of the sovereign state as a concept of modem international law and then add some observations concerning two basic changes of or inroads into the traditional inter-state system of international law. I shall then try, in the light of this evaluation, to restate our problem.
I. The Changing Notion of Sovereign Statehood What is meant - as the basic concept on which my following analysis is based sovereign statehood? Traditionally, sovereignty has been stated as meaning the special quality a state has as the highest authority under international law within the territorial limits of its jurisdiction. However, this purely formal qualification of statehood does not satisfy the inspirations, tendencies and conceptions of modem international law. Considering the evolution and integration of the international legal order, sovereignty cannot just mean the final, superior decision-making power ("Hochstmachtigkeit" or "letzte Entscheidungsgewalt") under international law. It also implies, as convincingly put by Jorg Paul Mulle?, the idea that a state is a political community which is invested with the effective power to grant, to realize and to implement certain basic values inherent in the principle of the "rule of law" understood in a substantive sense. In support of this thesis is the opinion of Max Huber, who stated already in 1928 in his arbitral award in the Palmas Case: Territorial sovereignty cannot limit itselfto its negative side, i. e., to excluding the activities of other states; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum protccrion of which international law is the guardian.3 - by
'Jorg Paul Muller, Wandel des Souveranitritsbegriffs im Lichte der Grundrechte - dargestellt am Beispiel von Entwicklungendes internationalen Menschenrechtsschutzes auf dis schweizerische Rechtsordnung, in: Rene'RhinowlStephanBreitenrnoserlBernhard Ehrenzellev (eds.), Fragen des internationalen und nationalen Menschenrechtsschutzes (Bibliothek zur Zeitschrift fir Schweizerisches RechtIBeiheft 25), 1997,45,61 et seq. ' Quoted by Muller, id., 62. As a general perspective see also Josf Delbriick, Die Konstitution des Friedens als Rechtsordnung, '1996, 192 et seq., 275 et seq., 3 19 et seq.; Stcphan Hobe, Statehood at the End of the 20th Century - The Model of the "Open State": The German Perspective, Austrian Review of International and European Law, 1997, 127 et seq.
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Thus, the basic idea which provides the foundation for our analysis and evaluation of the globalizing evolution of the international system is that due to its purpose and because of its very nature state sovereignty represents a value-laden notion. It does in fact, as a concept of present-day international law imply the capacity to realize human rights and other basic values recognized by the internarional cornrn~nity.~
11. The Changing "Shape7' of Sovereign Statehood
Two further observations of a rather theoretical character should be added, before coming to grips with the question if and to what degree the role of states has been transfonned under the impact of new non-state actors such as NGOs and transnational enterprises. It is not the normative substance of the concept of states which is concerned here but rather the function as well as the extent of the power which states exercise in a rapidly changing - i. e., integrating and at the same time shrinking - public international system. The first consideration may be labeled the "federalizing trend" of international law, while the second refers to a shift of power from the system of public order to the realm of private actors and is generally dealt with under the heading of "globalization". By the 'Ifederalizing tendency" or '>paradigm ",which has been so well described by Christoph Schreue9, I am referring to a move within the international order towards a greater diversity of participants. Nowadays international law is to a diminishing extent state-centered. Power within the international system becomes ?ore and more diffused into two directions. On the one hand a number of state constitutions concede limited authority to sub-state entities to regulate certain matters with other states or subdivisions of states across national boundaries6; on the other hand, international institutions are becoming, to an ever growing extent, actors in their own right, exercising a certain measure of authority, and must, in so far, be seen as highly relevant members of the international community. Both trends are confined to the sphere of public authority and are, within this domain, opening up the state monopoly of public power in order to include additional In this sense Miiller, id.
'ChristophSchreuer, The Warning of the Sovereign State: Towards aNew Paradigm for International Law, EJIL, 1993, 447 et seq. See, e. g., Daniel Thiirer, FBderalismus und Regionalismus in der schweizerischen Aussenpolitik: Zum VerhSiltnis von Bundeskompetenzen und kantonalen Kompetenzen unter veriinderten Umstwden, Schweizerisches Zentralblatt fir Staats- und Verwaltungsrecht, 1992,49 et seq.
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groups of subjects of intemational law within a "vertical" structure. They are thus conducive to a diversification and pluralization of the international legal system. On the "horizontal" plane theparadigm of "globalization" has emerged which has been described by Jost Delbruck7 and Alfred C. Aman8 as well as Stephan Hobe9 in a most illuminating way. According to this trend, the state system has been gradually transformed in the sense that states - in accordance with EC-law, WTOIGATT-law and other international regimes, or on the basis of unilateral arrangements of national law -have gradually delegated or relinquished parts of their hnctions to private, societal actors. I am referring here to large-scale measures of de-regulation which have been taking place in a most dramatic fashion not only within former communist states but also within western-type liberal democracies. A consequence of this has been the rapid growth of an internationally highly integrated private economic sector: amovement driven and shaped mostly by powerful multinational enterprises. "Federalization" has thus been followed by "globalization7' as a second inroad into the traditional inter-state system and new paradigm of intemational order.
111. Problem Restated
Thus, the question to be dealt with in this essay, in examining the changes brought about by new global and transnational actors, has a double character: - In conceiving the state as a normative concept, namely as a legal entity designed to realize basic values of justice and the "rule of law" (i. e., as a "communautC de d r ~ i t " ' ~we ) , should inquire in what sense and to what degree do non-state actors in fact enhance, strengthen and enable states to realize their proper function in the face of pressure from opposing forces, or the failing will of state authorities to fulfil their proper tasks as legitimizing agencies within the overall international system.
'Jost Delbriick, Globalization of Law, Politics, and Markets - Implications for Domestic Law: A European Perspective, IJGLS 1993,9 et seq.; id., The Role of the United Nations in Dealing With Global Problems, IJGLS, 1997, 277 et seq. "&ed C. Aman Jr., The Globalizing State: A Future-Oriented Perspective on the PublicIPrivate Distinction, Federalism and Democracy (Manuscript). ' See Stephan Hobe 's contribution in this volume. 'I' This term coined by the European Court of Justice in order to characterize the European Community might well be used to define the concept of State sovereignty in modem international law (Case 294183, Les Verts (Parti Ccologiste "Les Verts" v. European Parliament), judgment of 23 April 1986, [I9861 ECR 1365).
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- Does and to what degree does the international community have to step into the vacuum of the "rule of law" and of "public order" which has been created both by the processes of privatization and by the fact that some individual states are incapable of exercising public control because of a fragmentation or collapse of their internal order?
B. Emergence of New Transnational or Global Entities Having defined sovereign statehood as the frame of reference for our considerations, we now turn to the question whether the emergence of new transnational (global) entities lead to a decline or otherwise affect the role of states. In dealing with these new challenges I shall concentrate on two types of actors: NGOs and transnational enterprises. I am quite aware that they do not cover the whole spectrum of the relevant phenomena which emanate from the "grey zone" between international and domestic law. However, I think that their selection enables us to obtain a more or less representative picture of the broader questions raised concerning law, facts and values.
I. Non-Governmental Organizations 1. General development
NGOs are an important feature of modem international life. With a wide diversity of purpose and structure they perform their activities in fields such as human rights, humanitarian action, environmental protection, women's rights or consumer protection and thus give color and shape to issues of international relations. Historically, NGOs are atypical product of Western civilization, often displaying a somewhat missionary character. One of the frrst examples of what we nowadays regard as NGOs were the associations set up in the 17th and 18th centuries to promote the abolition of the slave trade and eventually of slavery itself." The year 1863 then saw the establishment.of the Red Cross Movement which developed out of the "Sociktk d'utilitk publique" in the protestant city of Geneva. Since then amultitude of NGOs have emerged, some of which are still flourishing today. ' I In this sense see the especially valuable analysis of Peter Macalister-Smith, NonGovernmental Organizations, Humanitarian Action and Human Rights, in: Ulrich Beyerlin/Michael BotheIRainer Hofmann/Ernst-Ulrich Petersmann (eds.), Recht zwischen Umbruch und Bewahrung - Festschrift fir Rudo[fBernhardt, 1995,483.
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However, it is only in recent times that NGOs have appeared as a salient phenomenon in world-wide policy-making and execution. Three factors and stages might, according to the pertinent analysis of Leon Gordenker and Thomas G. Weiss", be distinguished in this process of growth: - First, the political environment during the Cold War should be mentioned as being a powerful factor in shaping and facilitating the rise and influence of NGOs. Within range of the powerful Soviet empire they emerged as the conscience and visible manifestations of an awakening "civil society" claiming its rights for political, cultural and economic freedom. In this context NGOs played their role initially behind the diplomatic scenes dominated by states and the United Nations. But undohbtedly they were a most effective force in paving the way for glasnost, perestroika and finally for the break-down of the communist regime. After its collapse and dismantlement, they also effectively contributed to the building up of democratic and free-market institutions. - A second factor conditioning the growing influence of NGOs was a gradual shift in post Cold War international relations from "high politics" to "low politics". As long as matters such as security, particularly over nuclear issues, preoccupied the international actors, NGOs were at a comparative disadvantage. But as soon as issues such as human rights, environmental protection or women's rights began to dominate the international agenda, NGOs active in these fields gradually succeeded in gaining direct access to policy makers and making their voices heard. - Finally, developments in informationtechnology should be put forward as being a possibly general, but a very powerful explanation for the increasing prominence of NGOs in international life. Throughout history governments have frequently succeeded in monopolizing information or in effectively preventing transborder communication but this capacity of state power is nowadays being gradually eroded. The flow of information through Internet and fax comrnunications cannot be inhibited and NGOs enjoy full freedom to interact and network without state control. This newly emerging scene of world public opinion-making has been well described in the following words by Leon Gordenker and Thomas G. Weiss: "Electronic means", they observe, "have literally made it possible to ignore borders and to create the kinds of communities based on common values and objectives that were once almost the exclusive prerogative of nationalism.
Leon GordenkerlThomas G. Weiss, Pluralizing Global Governance: Analytical Approaches and Dimensions, in: Thomas G. Weiss and Leon Gordenker (eds.), NGOs the UN, and Global Governance, 1997,24 et seq.
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Modern communications technology is independent of territory. 'By providing institutional homes in the same way that states have accommodated nationalism', one author suggests, 'NGOs are the inevitable beneficiaries of the emergence of the new global communities'. 'Consequently', as another study claims, 'global social change organizations may represent aunique social invention ofthe postmodern, postindustrial, information-rich and service-focused, globally-linked world ~ystem'."'~
2. Dejnition a n d PhenomenologicaI Description NGOs encompass a wide diversity of organizations, social movements and pressure groups which are active in fields of public concern. They can be classified according to different criteria such as size, aims, statutes, structure, membership, geographical reach of activity or methods and means of action. l 4 Legally they have according to the definition of Peter Macalister-Smith - the following three elements in common:
1. They are, as their name indicates, not established by a government nor by an intergovernmental agreement; 2. they are typically private institutions: associations, foundations, federations or other unions founded on the basis and under the regime of the private law of a state; 3. the concerns, purposes and objects of NGOs are, in contrast to their origins, of a public nature.15 Some NGOs act on the international plane while others limit their actions to the internal domain of a state. As far as the international NGOs are concerned, they are not, unlike international organizations, generally recognised as subjects of (note 12), 25. See the phenomenological survey of Henv J. Steiner, Diverse Partners - Non Governmental Organizations in the Human Rights Movement, 1991; Yves Beigbeder, Le r61e international des organizations non-gouvemementales, 1992; Elmar AltvaterlAchirn BrunnengraberlMarkus HaakelHeike Walk (eds.), Vemetzt .und Verstrickt - Nicht-Regierungs-Organisationen als gesellschaftliche Produktivkraft, 1997; Florian T. Furtak, Nichtstaatliche Akteure in den intemationalen Beziehungen, 1997; Theo C. van BovedCees FlinterrnardFred GrunfeldRita Hut (eds.), The Legitimacy of United Nations: Towards an Enhanced Legal Status ofNon-StateActors;Jackie Smith1 Ron Pagnuccol George A. Lopez, Globalizing Human Rights: The Work of Transnational Human Rights NGOs in the 1990s, HRQ, vol. 20, 379 et seq. Among the large number of publications concerning specific fields of action see e. g., Oran R. YounglGeorge J. Demko/Kilaparti Ramakrishna (ed.), Global Environmental Change and International Governance, 1996. In this sense Macalister-Smith, op.cit., 477, 480 f.; Jiirgen Schramm (ed.), The role of Non-Governmental Organizations in the new European Order, 1995. " Gordenker/Weiss l4
''
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intemational law. Therefore, as a general rule, NGOs and their personnel do not benefit from the special privileges, standing, facilities or immunities under intemational law which may be accorded to intergovernmental organization^.'^ However, such special treatment may be granted to NGOs as parties or beneficiaries of specific intemational instruments." The broadest acknowledgment of the existence and formal standing of the non-governmental sector as a whole was included in Article 71 of the UN-Charter which enables the Economic and Social Council to consult with NGOs which are concerned with matters within its competence." NGOs serve different functions. They may:
-
collect information on the spot, i. e., bring to light facts and material concerning disputed, cokoversial dr desperate situations which would otherwise be neglected or forgotten by public opinion; - report to bodies within intergovernmental mechanisms for consultation and or supervision; - plead and advocate, lobby and monitor, mobilize or educate public opinion; - aim at holding states accountable to honor commitments they have accepted under intemational law; - undertake field activities and render services, for instance in the course of the implementation of aid programs; l 6 A special status is recognized, under international law, to the International Committee of the Red Cross (ICRC).This institution forms part of the Red Cross Movement which also embraces, as further components, the National Red Cross Societies, the Federation of National Red Cross Societies and the International Red Cross Conference. The Red Cross Movement thus represents in our international system a somewhat old-fashioned,but at the same time (post-)modern, framework and instrument of states and forces of international civil society for humanitarian action. Among the different components of the Red Cross Movement only the ICRC is recognized as a subject of international law. For further details see Denise Bindschedler-Robert, Red Cross, in: RudolfBernhardt (ed.),EPIL, vol. 5 (1983), 148 et seq.; Frarz~oisBugnion, Le ComitC international de la Croix-Rouge et la protzction des victimes de la guerre, 1994; Christian Dominick, La PersonnalitC juridique internationale du CICR, in: Christophe Swinarski (ed.),Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en I'honneur de Jean Pictet, 1984,663 et seq.; Paul Reuter, La personnalitt juridique internationale du Comitt International de la Croix-Rouge, op.cit., 783 et seq. See Macalister-Smith, opcit., 487188. '"ee, as an elaborationof Article 71 of the UN-Charter, Resolution 1996131 concerning "consultative relationship between the United Nations and non-governmental organizations", adopted by the Economic and Social Council at its 49th plenary meeting on 25 July 1996 (replacesResolution 1296144 adopted by the Economic and Social Council on 23 May 1968).
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on-~ovemrnental Organizations
45
promote the development and elaboration of standards and principles in various fields of social behavior. The modus operandi adopted by NGOs may be characterized by "activist"
methods used when appealing to the public at large through the mass media ("mobilization of shame") or by a more cautious approach in the form of confidential dialogues with the responsible authorities.
3. Evaluation
If we now try in a few words to evaluate the impact of international NGOs on international life, we easily see that they exceed by far the informal status accorded to them in international instruments. Undoubtedly, the most prominent NGOs represent a driving and shaping force of progress in today's international political life:
- by influencing the agendas of intemational organs and World Conferences, as
-
-
was powerfully demonstrated at the Rio Conference on Global Environment (1992), the World Conference on Human Rights in Vienna (1993), the Habitat Conference in Cairo (1994), the Social Summit in Copenhagen (1995) and the World Women's Conference in Beijing (1995); by devising new intemational instruments such as, most recently, the Convention on the Prohibition ofthe Use, Stockpiling, Production and Transfer of AntiPersonal Mines and on their destru~tion'~, or the Statute of the International Criminal Courtz0; by providing expert knowledge, e. g., in the human rights field2'; by monitoring the implementation of international lawzzand guiding political principles; and by realizing a great variety of projects "in the field".
l9 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personal Mines and on their destruction of 18 September 1997, ILM, vol. 36 (1997), 1507. 20 Rome Statute of the International Criminal Court of 17 July 1998, UN AICONF. 18319. E. g., inducing 1503- and 1235-proceduresbefore the UN-Human Rights Commission. See Karl Wolji.am, Stille Diplomatie oder Publizittit? - ~berlegungenzum effektiven Schutz der Menschenrechte, in: Eckart Klein (ed.),Stille Diplomatie oder PublizitZit?, 1996, 40 et seq.; Dinah Shelton, The Participation ofNon-Governmental Organizations in Intemational Judicial Proceedings, N I L , vol. 88 (1994), 61 1 et seq. 22 See e. g., Agenda 21, adopted at the UN Conference on Environment and Development on 13 June 1992.
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From asubstantiative perspective, the efforts ofNGOs in transferring democratic principles from the domain of state constitutional law to the field of international politics are of fundamental importance. The former UN Secretary-General Boutros-Boutros Ghali rightly observed that NGOs have become "a basic form of popular participation and representation in the present-day world." 23 Of course, NGOs themselves are not necessarily democraticallyorganized, since elections are infrequent within NGOs. However, on the whole and given the variety of philosophies and policies which they reflect and shape, they seem, although perhaps not always accurately, to be highly representative of world public opinion in political life. As "grass-roots" or "bare feet" movements they help to bring the values of civil society and the voice of the citizen to bear. As non-state entities, NGOs introduce an independent stance into the intemational arena. And, by reminding states to fulfil their obligations entered into under intemational law, NGOs could often be said to express the juridicial conscience of the international community. Thus, NGOs strengthen states by enhancing the "rule of law" and democracy (described at the outset as being elements inherent in the notion of the state in international law) in situations where state organs or agencies fail to fulfil their essential functions and, in exceptional situations, even by acting as the surrogates of state officials where state institutions have broken down.24 Thus, as a general rule, NGOs support states in carrying out those tasks which are inherent in the concept of statehood under modem international law, namely, to be the guardians of the values and principles of humanity as a whole (such as human rights and democracy) and thereby to promote the public interests of those living and kting within their jurisdiction.
11. Transnational Enterprises
In a similar way to NGOs, transnational enterprises are institutions founded under the domestic law of a state. They also share with intemational NGOs the characteristic of planning and acting across state borders. Transnational enterprises differ from NGOs in that they are not designed, or at least not principally designed, to fulfil a public purpose, but rather aim at making a profit which can be distributed
Boutros Boutros-Ghdi, Foreword in GordenkedWeiss (note 12), 7. Obvious examples are the "Failed States" such as Somalia, Liberia, or countries otherwise caught up in civil war or internal strife. For further evaluation see Daniel ThuredMatthias HerdegedGerhard Hohloch, Der Wegfall effektiver Staatsgewalt: ''The Failed State", BDGVR, vol. 34 (1996). 2'
24
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to the shareholders or re-invested in the corporation. Contrary to NGOs, their intrinsic purpose is not to encourage or support state authorities to fulfill their functions under international law. Instead, they tend to escape from the control of -home or host - states and in fact often rival with state powers. This raises the question whether, according to the principle of the "rule of law", existing rules and institutions should be strengthened and new mechanisms should be set up in order to control their activities in a fairer, more reliable and effective way. In a book carrying the telling title "Global Shift", a British professor of intemational economy states that much of the changing shape of the global economic system is sculptured by transnational enterprises investing in particular geographical locations. The same author points out that the significance of the transnational enterprise, especially the very large global corporations, is due to three basic characteristics: 1. Its control of economic activities in more than one country; 2. its ability to take advantage of geographical differences between countries and regions in factor endowments (including government policies); 3. its geographical flexibility, that is, its ability to shift its resources and operations between locations on a global scale.25 What seems to be significant from a legal point of view is that transnational enterprises are -to put it simply - constituted according to the law of a particular country. As a general rule, they are governed by that law and the relevant rules of conflict of laws. However, although they are embedded in the system of law and the political culture of their home as well as their host state26,they are to a large extent in their practical operations liberated from state control. This is so because, on the one hand, by entering into binding international treaties or unilateral policyPeter Dicken, Global Shift, 1992. 47. See Paul N. Doremus/William W. Keller/Louis W. Pauly/Simon Reich, The Myth of the Global Corporation, 1998. Interestingly enough, these authors underline that striking 2'
26
differences in corporate strategy remain in the most fundamental areas. They write: "The empirical evidence ... suggests that distinctive national histories have left legacies that continue to affect the behavior of leading MNCs. The scope for corporate interdependencies across national markets has unquestionably expanded in recent decades." (9) The authors further explain: " We see corporations internalizingboth the basic political institutions and underlying ideological frameworks within which they remain most firmly embedded. And unlike other scholars who acknowledge such effects but assume that they will inevitably recede over time, we see them as 'hard-wired' into core corporate structures." (15) They conclude: "But states - especially home states - remain decisive. They do notjust matter. In analytical terms, our approach remains open to the possibility that states retain their priority with respect to other factors influencingthe operating environment of the modem corporation." (1 5)
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Daniel Thiirer making, states have in many fields denationalized their economies, especially as far as processes of transborder financing, production and distribution are concemed. On the other hand, transnational enterprises are, by the very nature of their operations, not easily controllable by any one political ~ystern.~' As C. WiIfredJenks put it: (T)he relationship of their operations to the law is one of the largest questions to be resolved to create an effective world rule of law. But they are not the creation of any one legal system and are not, and cannot be, effectively controlled in the public interest by any existing legal system or combinationof legal systems.They are a triumph ofeconomic power and legal ingenuity operating on a scale which transcends and at times dwarfs the authority of individual states, and for which the existing legal order makes no appropriate provision. It is inevitable that in such a situation so much economic power and so much legal ingenuity should sometimes be tempted to take advantage of the complexity of political and legal systems to create a world of their own which must accommodate itself in the conduct of its operations to many legal systems but is not in any real sense subject to any of themz8 W e are thus confronted with a gulf between two "worlds" or two types o f systems: the highly fragmented political world of states with their parliaments, governments, courts, public debates and political decisions and the partially unified, integrated world of global economies.29This latter is characterized as an "anti~-
~
-
-
27 Efforts to change this situation have been made by the UN. With Resolution 1997111 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, the preparation of a background document on the relationship of the enjoyment of human rights and the working methods and activities of transnational corporations has been induced. C. Wilfred Jenkr, Multinational Entities in the Law of Nations, ,in: Wolfgang Friedmann, Louis HenkidOliver Lissitzzn (eds.), Transnational Law in a Changing Society Essays in Honor of Philip C. Jessup, 1972,72173. 2' See Martin Carnoy/Manue[ Castells/Stephen S. CohedFernando Henrique Cardoso, The New Global Economy in the Information Age, 1993, 112: " ... the 'informatization' of the world economy changes the conditions and possibilities for national policies. It means the informatizationofsocieties and politics. Economic globalization means the globalization of local social movements. Local becomes global, and global becomes local." However, these authors also stress the influence of the home bases on strategies of Multinational Enterprises (MNE): "We are convinced that MNEs are a product of their national origins and still depend on their home bases for economic strength. We are also convinced that there is a wide range of nation-state activity enhancing local economic development that goes beyond developing human resources for international distribution." (3) And they go on: "The nation-state's policies have a profound influence on the capacity of its MNEs to expand, for two reasons: 1) for most MNEs the home market is still crucial to the overall capital-accumulation process - national macroeconomic policies are important for homemarket development; and 2) most MNEs' research-and-development capacity is linked to home-base, nation-state R&D policies, high-skill human capital development policies, and telecommunications policies." ( 9)
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political world" by some observers or as a "political subsystem" by others in that strategies decided on behind closed doors in Transnational Enterprise headquarters are aimed primarily at safeguarding and strengthening shareholder (and, at times, stakeholder) values. In the bygone times of national economies, economic processes were to a large extent contained within the borders of states, and public authorities were able to regulate the economy and to effectively supervise key economic actors such as banks, insurance companies and other business institutions. Nowadays, in the "noman's-land" of global economies, we are witnessing a lack of adequate control, transparency, and responsibility. Can we today -the citizens of political comrnunities - be compared, as the French author Viviane Forrester put it, to a theater audience, watching closely the drama and admiring the actors on the stage without noticing that the real actors deserted the stage long ago, taking with them the script and leaving only their shadow^...?^' Are we thus living in a time characterized by a worldwide, fundamental shift of power from the public to the private domain? The scenario so painted might be exaggerated considering the fact that there are and always will be business leaders with the capacity and potential to display enlightened vision and responsibility in a much broader, future-oriented sense than that offered by many public authorities. In fact, a code of ethics for business behavior, anchored in a sense of collective responsibility for future generations and for disadvantaged peoples or segments of society in our present world, might, if faithfully respected by entrepreneurs, be an important key to the evolution of world public ~ r d e r .In ~ 'addition, individuals considering themselves to be "consumer-citizens", "producer-citizens" or "trader-citizens" certainly have a great potential to play a much more powerful and influential role in shaping a hture public economic system. Finally, the means and devices of private law, such as product liability, have been developed in the public interest in order to assist individuals to control and contain economic power on the horizontal level. On the whole, however, the fears are not unfounded which consider that the global economy, following its own inner imperatives, tends to evade the rules con-
'' Viviane Forrester, L'horreur tconomique, 1996, 3 1. See Bruno FritschStephan Schmidheiny/Wafter Seifritz, Towards an ecologically sustainable growth society: physical foundations, economic transitions and political constraints, 1994; Debora L. Spar, The Spotlight and the Bottom Line - How Multinationals Export Human Rights, Foreign Affairs, 199812, 7 et seq. 3'
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cerning social justice and environmental protection3' which have usually been created a s a result o f hard political struggles within the framework of traditional nation states. It is disturbing that according to the "principle of comparative advantage" first developed by David Ricardo, international social and economic standards a r e put under pressure and that, in reality, in the so-called "laissez-faire" economic system of the free market guided b y Adam Smith's "invisible hand", true competition between economic actors does not actually exist because there is t o o m u c h interdependence between them.33 Tax evasion and tax dumping are a l s o logical consequences of the present order characterized by competition between political systemsP4
We should therefore not 'ignore the warning voices of eminent o b s e k e r s , such as Michael Walzer who recently wrote: Multinational corporations. . . need to be constrained, much like states with imperial arnbitions; and the best constraint probably lies in collective security, that is, in alliances with other states that give economic regulation some international effect. The same mechanism may turn out to be useful to the new environmental groups. In the first case, the state pressures the corporation: in the second it responds to environmentalist pressure. The two cases suggest, again, that civil society requires political agency. And the state is an indispensable agent - even ifthe associational networks also, always, resist the organizing impulses of state bureaucrat^.^^
32 Long-term, deep and impressive visions of ecology are developed by Alexander Gillespie, International Environmental Law - Policy and Ethics, 1997, Hans Jonas, Erkenntnis und Verantwortung, 1991, who reminded us to take into account the"Fernf0lgen" as integral part of responsible action (1 14), and Ernst U. von Weizsacker, Erdpolitik Okologische Realpolitik an der Schwelle zum Jahrhundert der Umwelt, 2nd ed., 1990 who wrote: "Gegen (den) okologischen Kollaps hilfi die 'Unsichtbare Hand' nicht." (7) And it is hrther stated: "Wir treten, ob wires wollen oder nicht, in ein Jahrhundert der Umwelt ein. In diesem wird jeder, der sich Realist nennen mbchte, gezwungen, seine Handlungsweise als Beitrag zum Erhalt der Umwelt zu rechtfertigen. Die kurzfristige wirtschafiliche Optimierung bleibt natiirlich als Ziel erhalten, aber wenn sie sich den okologischen Notwendigkeiten nicht unterordnet, wird ihre Glaubwurdigkeit nicht hoher sein als die der heutigen Konfessionsstreiter in Nordirland oder die von luxemburgischen Nationalisten." (9110) 33 It has bcen estimated that 40 percent of international transactions in goods and capital take place within the framework of some globally active transnational enterprises; see PL?!P~ lilrich, Integrative Wirtschaftsethik - Grundlagen einer lebensdienlichen Okonornie, 2nd ed., 1997, 380. See also, in this context, Thomas MaaW York Lunau (eds.). Weltwirtschaftsethik - Globalisierung auf dem Priifstand der Lebensdienlichkeit, 1998. 34 Hans-Peter MartidHarald Schumann, Die Globalisierungsfalle - Der Angriff auf Demokratie und Wohlstand, 1996, 269 et seq. 'j
Michael Walzer, Towards a Global Civil Society, 1995, 23/24
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Ulrich Beck advises us that: Der Politik der Deregulierung der transnationalen Organisationen w&e die Forderung einer Reregulierung, der Wiedereinfuhrung sozialer und Gkologischer Standards entgegenzusetzen.36("By way of opposition to the politics of deregulation of transnational organization there should be the postulate of a re-regulation, a re-establishment of social and ecological standards.") Or as C. WiIfredJenks already observed years ago about economic power: Every legal system as it develops must grapple with the problem of placing an effective restraint upon power and insuring responsibility; this is the essenceofthe whole concept of due process of law."
C. Evaluation a n d Need f o r Reconception of t h e International Legal O r d e r I. Plea for a "Constitutional" Approach
Up to now, we have been dealing with the picture of the modem state which is, on the one hand, being orchestrated by the various activities of NGOs as voices and exponents of a modem and volatile international civil society. And yet on the other it is being challenged by transnational enterprises as power centers and forces of an international economic system which, in a legal sense, is not adequately regulated and might, by its very own logic, have long-term adverse consequences for the common interests ofmankind. Both situations stem from and are manifestations of a global shift in politics, economics and law and have been, as we have noticed, created, shaped and facilitated by explosive developments in the field of cornmunication technology. Against this background we shall now evaluate the newly emerging situation from the perspective of the present international legal order and investigate if and in what manner international law needs to be reconceived, redefined or reshaped in order to better reflect and to cope with the needs of modem intemational society. In trying to find a new frame of reference for the evolving international legal order, the phrase coined in the thirties by the German constitutional lawyer Herrnann Heller "Juristische Denknotwendigkeit besitzt der Staat, nicht aber das Volker-
UIrich Beck, Was ist Globalisierung?, 1997, 263. 37 J e n h (note 28), 71. 3G
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recht" ("Logically necessary is the state and not public international law")", can certainly no longer be our guide. Instead, as indicated at the beginning of this essay, the principle of the "international rule of law" should rather be placed at the center of our efforts to conceptualize the new situation. However, neither the classical defmition of international law offered by the British international lawyer Lassa Oppenheim whereby the law of nations is a "law between states only and exclusively" (1905), nor the one of the American intemational lawyer John Westlake, for whom international law is a legal order where states are the "immediate" but men the "ultimate" members (19 14)39,correspond to our needs. They embrace too minimal a concept to be useful as a paradigm of modem international law in its actual form and even more it does not contain any potential for future development. In the light of the processes of transformation which we have just described, I would like to suggest that a new dimension within the international legal order should be considered. We should conceive of intemational law "vertically7' as a (hierarchical) legal system with a constitutional bask4' The idea of a constitutional foundation of international law is, of course, not new. It was, if I am well informed, the Austrian international lawyer Aped Verdross4'who, as far back as in the twenties, coined the expression "volkerrechtliches Verfassungsrecht". Eminent German international lawyers, such as Hermann Mosler, Christian Tomuschat, Jochen Abr. Frowein or Bruno Simma, took up this concept in their well-known Hague Lectures and in other ~ritings.~' Their elaborations were made against the background of such intemational practice as the United Nations resolutions in the General Assembly and the Security Council or the decisions and opinions made in 38 Hermann Hellel; Die Souver2nitat - Ein Beitrag zur Theorie des Staats- und Viilkerrechts, in: Christoph Miiller (ed.), Gesammelte Schrifien, 2nd ed., 1992, 140. 3%oth autors quoted by Jenks (note 28), 70171. 40 In German one could speak ofthe "Tiefendimension der Rechtsordnung". -If we consider in this article that vertical international law should be conceived of as a legal system with a constitutional basis, we do also suggest that on the horizontal dimension, so to speak, the reach of international law should be extended so that it includes a fully-fledged law of economic transactions as well. There is, regrettably, no opportunity in this context to further consider rules and institutions designed or to be developed to cope with the aspects of thc growing power of globalization. " A y e d Verclmss, Die Verfassung der Volkerrechtsgemeinschaft, 1926. " See Her-mannMosler, The International Society as a Legal Community, RdC 1974/IV, 17 et seq.; Christian Tomuschat, Obligations Arising for States Without or Against Their Will, RdC 1993/1V, 216 ef seq.; Jochen Abr. Frowein, Reactions by Not Directly Affected States to Breaches of Public International Law, RdC 1994/IV, 355 et seq.; Bruno Simma, ~rom Bilateralism to Community Interest inhtemational Law, RdC 1994N1, 256 et seq.
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the International Court of Justice. But, above all, they deduced the doctrine from key concepts such as ius cogens, which represents a category of core principles in international law, the erga omnes-effect of certain basic principles of international law and the category recently recognized by international law of "international
crime^".^' The attraction of a "constitutional" approach to international law seems to me to be especially compelling when placed against the background of the globalizing tendencies which we have just been describing. Of course, in the given intemational law context, we do not have in mind a "statist" model ("vision etatiste") of a constitutional order, but a much more modest, rudimentary concept. Perhaps, therefore, we should rather refer to "constitutionalism"or "a constitutional theory" or "a constitutional method" of conceiving, shaping and interpreting international law. Or perhaps it would be better to compare it with the constitutional practices and conventions developed within the British Commonwealth of Nations rather than with the logically coherent construction of the constitutional order of a state.
11. Elements of a "Constitutional" Approach Whatever terms we might use, it is a fascinating adventure to try to discern and to identify, within the complex body of intemational law, those principles and rules which form the basis, the imminent goals, the framework and the core structure of this system of law as a whole. I shall try now to explain the relevance of a "constitutional approach" to international law in the context of the basic theme of this essay by looking at the following six topics: 1. One important advantage of a (coherent) constitutional theory is that it enables us to better identifjr the basic components.of the legal system. Considered from a constitutional perspective it would seem to provide us with an easier way of escaping from the rigidly defined circle of traditional subjects of intemational law. Thereby we can avoid the intensely debated but largely sterile question as to whether or not NGOs or transnational enterprises have emerged as new subjects within the international legal order. Instead - using a constitutional or functional approach -these new entities can be elegantly integrated into a broader concept of "international community". To illustrate my point with a similar example fiom 43 See, as an endea~ourof elaboration of this concept Daniel Thurer, Internationales "Rule of Law" - innerstaatliche Demokratie, SZIERRSDIE, 1995, 455 et seq.; id., Bundesverfassung und Viilkerrecht, in: Komrnentar zur Bundesverfassung der Schweizerischen Eidgenossenschafivom 29. Mai 1874 (Einleitung), 1996.
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domestic (German) law: the fact that the CDU (Christian Democratic Union) is endowed with legal personality, but the SPD (Social Democratic Party) not, might have significant consequences under German private law, but it is largely irrelevant from a constitutional point of view. In a similar way, the new actors in our globalizing world might more easily be moulded into the system of international law if we try to conceive of them as factors and forces of a broader constitutional order. 2. One of the main functions of constitutionalism is to identify the basic rules of legitimacy of the relevant legal system. Perhaps the most prominent rule of legitimacy of state constitutional law is the "consent of the people" or "popular sovereignty". Similarly does not our present study reveal a strong tendency of the NGO community to make the desires and wishes, the public opinion and public conscience of a cosmopolitan civil society heard in international relations? This revolutionary effort, not to confine democracy to inner-state systems but - as argued by W. Michael Reismad4 and Thomas M. Franck4' -to consistently extend it to the global level might be better recognized and valued for its inner right, weight and novelty, if we consider this aspect of globalization from a constitutional perspective. Of course, by its very nature, democracy cannot have the same place and be given the same role in international law as within the differently structured domestic legal systems. The national model as such is not transferable to the (more fluid) global scene. In international law, democracy seems to be a goal rather than a legally binding principle rooted in a set of individual rights. However, as I tried to demonstrate in a recent article46we-may question, whether the concept of "citizenship" might be taken out of the simple national law setting which is its "natural home" and be extended to a novel form of "Union citizenship" provided for at the European Union level in the Maastricht and Amsterdam Treaties. Out of these a development might be further made up to the global level, where a concept of "cosmopolitan" citizenship might ultimately be achieved containing vaguer and more abstract elements4' 44 W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, AJIL, vol. 84 (1990), 866 et seq.; Thomas hf Franck, The Emerging Right to Democratic Governance, AJIL. vol. 86 (1992), 46 el seq. Thomas M. Franck, The Power of Legitimacy among Nations, 1990. 46 Daniel Thiirer, "Citizenship" und Demokratieprinzip:''F6derativeW Ausgestaltungen
''
im innerstaatlichen, europlischen und globalen Rechtskreis (forthcoming). 47 See, in this context, David Held, Democracy and the Global Order, Cambridge 1995, especially the last chapter on "Cosmopolitan Democracy and theNew International Order" on 167 et seq.
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3. The notion of human rights in its traditional, liberal and political sense is even more firmly recognized than democracy as a core component of modem international legitimacy. In connection with the establishment and the functioning of NGOs would it not be logical to see guarantees of political fieedom such as the peedom of association and opinion being set? These rights are expressly secured under the Universal Declaration of Human Rights48,the International Covenant of Civil and Political Rights49and in other international instruments, and represent, as basic components of international law, a "constitutional basis" for the core NGO activitie~.~~ 4. Constitutional legitimacy also means that nopower shouldremain unchecked. Considered in our context, it has been recently put in this way: "A metaphor" - suggested Marc Nerfin - provides a starting point for locating NGOs in the political realm; the prince represents governmental power and the maintenance of order; the merchant symbolizes economic power and the production of goods and services; and the citizen stands for people's power. As such, the growth ofNGOs arises from demands by citizens for accountability from the prince and themerchant. In this perspective, NGOs compete and cooperate with the prince and the merchant for guidance in aspects of social life. They function to 'serve undeserved or neglected populations, to expand the freedom of or to empower people, to engage in advocacy for social change, and to provide service^'.^' May - we ask in this connection - the thesis be developed that, fiom the viewpoint of legitimacy of the international order and, especially, of a rudimentary system of "checks and balances", movements such as Greenpeace, WWF (World Wide Fund ofNature), International Commission of Jurists or Amnesty International with their actions against the abuse of power by the "merchant" and the "prince" should be conceived of as sort of "countervailingforces ". Perhaps in the interest of the world community they should be welcomed and unrecoverable costs caused by their resistance action would have to be anticipated as a normal part of the budget of the relevant transnational enterprises or other actors concerned. To be sure, such actions are highly problematic due to an obvious lack of adequate civil liability. But are protests and challenges of this kind not, on the whole, desirable faute de mieux? In other words they emerge due to a lack of adequate legal mechanisms to safe-guard public interests on the international plane. In this sense, the "con~tit~ltional'~ perspective of"checks and balances" certainly has some relevance for our discussion.
48
49
kt. 19 and 20. kt. 19 and 21/22.
Macalister-Smith(note 1 1), 486. Gordenker/Weiss (note 12), 19.
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5 . The present-day scene of world economy seems to make clear that a "total market" (Peter Ulrich)" cannot be an aimperse of the international society. In the production and distribution of goods and services, market mechanisms should only be valued as instruments designed for the fulfilment of values of human life, pmpose and culture of a higher order. This limited place of "economic efficiency" seems to be generally accepted within the "order of ideas" of traditional state constitutions. But does not the present state of world economy with its inherent dangers for socialjustice, solidarity5' and - ultimately - peace demonstrate in an especially persuasive way the potential of the idea to think abcut world order relations within a constitutional conception? 6 . Finally let me mention a very general perspective which comes to light if a constitutional approach to international law is taken. In some State constitutions it is laid down that the state has a federal structure or that it is based on afederal principle of legitimacy. Would it not be much easier to identify those tasks which have to be, totally or partially, dealt with on a central level of governance if we regard this global process of distribution, balancing and sharing of power from a constitutional-federalistic perspective? Generally experiences in domestic laws4have demonstrated above all that three types of powers or responsibilities are located at the central level of government: - The protection of basic (common) values such as human rights. These basic common bonds of a legal community should be rendered more visible in international law by being integrated into a constitutional core. - Tasks which, from their very nature, are of an embracing character. For instance in the international scene many aspects of environmental protection such as climatic change or protection of the ozone layer fit into this category as does terrorism, trade in arms or narcotics etc.
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' j
The same author also speaks about "market methaphysies".
'' See John Kenneth Galbraith, Die solidarische Gesel1schaft.-
Pliidoyer fur cine moderne soziale Marktwirtschaft, 1998, 126 et seq. 54 See, e. g., Daniel J. Elazar, American Federalism - A View From the States, 2nd ed., 1972; Max Frenkel, Fbderalismus und Bundesstaat, vol. 2 (1 984-1 986); Daniel Thiirer, Bund und Gemeinden - Eine rechtsvergleichende Untersuchung zu den unmittelbaren Bzziehungen zwischen Bund und Gemeindcn in der Bundzsrepublik Deutschland. den Vcreinigten Staaten von Amerika und der Schweiz, 1986; id., Switzerland: The Model in Need of Adaption? In: Joachim J. HesseNincent Wright (eds.), Federalizing Europe? The Costs, Benefits and Preconditions of Federal Political Systems, 1996,219 et seq.; Hartwig BulckPeter Lerche, Fbderalismus als nationales und internationales Ordnungsprinzip, VVDStRL, no. 2 1, 1964.
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Matters which, because of their spill-over effect, have to be regulated on the central level. In international law those areas might be included where public common goods suffer as a result of competition between political systems.
As Peter PernthaleJS has so convincingly described, federalisticthinking might also help us to adequately perceive the role of states within the international system. In the architecture of domestic federal systems, Cantons, Lander or states are usually given a double function. Firstly within the frontiers of their territory and within the "political space" designated to them by the federal constitution, they constitute their own political order based on their specific perception of needs and collective identities. They have, in this respect, an authority which might be called "exclusive". But they are also component parts of the overarching federal system: they participate in its central decision-making process and implement law made by central organs. This process is not limited in reach to the territory of the composing unit and it has an "inclusive" character. In this sense, Cantons, Lander or states are "bridges" between the regional population and the central authorities. Might not, under the finality of federal thinking, sovereign states also be conceived as middle parts, as mediators or "bridges" between communities on the local and regional level on the one side and on the global plane, on the other? These "bridges" are, of course, in the international sense, not empty, abstract, lifeless constructions, but rather, as Peter Saladid6 put it, a sort of Ponte Vecchio crowded with shops, houses and peoples.
Conclusion Let me end my essay by returning to the question raised at the outset. Do NGOs, transnational enterprises and other actors of globalization strengthen or lead to a decline of the role of states? I think,' we should answer this question in a differentiated way. If we consider the globalizing processes just described as a catalyzer permitting us to conceive international law as a legal system embedded in a nascent constitutional order, we easily come to the conclusion that states as "Trustees" of values recognized by the international legal order have been reenforced, reaffirmed, revitalized and even empowered by the forces of globalization. The vigilance ofNGO-activities continual-
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"Peter Pernthaler, Globalisierung als Herausforderung an eine modeme Staatslehre, in: Heinz Schoffer/Walter BerkdHarald Stolzlechner/Josef Werndl (eds.), Staat - Verfassung - Venvaltung: Festschrift f i r Friedrich Koja, 1998,69 et seq.
''Peter Saladin, Wozu noch Staaten?, 1995, 2481249.
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ly remind states about the essence of their role and responsibility and stimulate them to live up to their true function under the rule of modem international law. Therefore, I wonder if these new evolving new concepts under international law do in fact actually assist states, at least partially, in fulfilling their proper functions in a more adequate, meaningful, and promising way. As far as challenges by powerful transnational entities are concerned, it can be seen that there is a need for the reach of law to be extended. No accumulation of power should remain unchecked under a system of "rule of law". States should cooperate together and create new rules and institutions in order to effectively regulate and domesticate economic power. This is a requirement dictated by the raison du syst2me international as opposed to the raison d'ktat dominating the traditional world of international law. Sovereigntyhere is not so much endangered in its traditional "exclusive" sense, but it is no doubt challenged in its "inclusive", non-territorial participative dimension and cooperation is demanded in order to strengthen the international system. By way of conclusion, it should however not be forgotten that, as a general rule, states are and remain the indispensable centers of authority and power in the world of international relations and in international law. They are, after all, the units which hold the monopoly of force and which provide the basic infrastructure in the present world public order which still has a largely non-centralized character. However we are also living in a time of transition. Globalization has created new forces. One outstanding new feature is the emergence of new non-territorial actors whose influence partially de-territorializesthe notion of state sovereignty. Globalization brings a concept no longer limited to territorial control, but which extends to participating functions in an overriding, non territory-based system. Traditional institutions like the state are certainly here to stay but - in a process characterized by new, often ambiguous concepts and notions and by the tentative, partly soft-law effects of new regulations -their appearance and function are to a certain extent been changed in the present times. In the place of the crumbling "walls" of the old "state fortresses" new ivory networks are rapidly spreading and are covering up the old towers, bestowing on them a new and exciting appearance.
Paul Ricoeur and International Law: Beyond 'The End of the Subject'. Towards a Reconceptualization of International Legal Personality
Abstract The enquiry into international legal personality in the following article is both descriptive and prescriptive in nature. On the one hand, the phenomenon of the (legal) subject is described ;nd explained, in order to offer a better reflection on, and analysis of, its existence. This holds for both the individual and the (so central to international law) collective subject. On the other hand, our attempt at reconceptualization has a clear normative aspect. Reconstructing (international)legal personality on the basis of anthropology and ethics as an inextricable part of the identity of a person results in a conception of (international) law as justice. And this means that international legal personality reconceptualized along the lines suggested in this paper functions to develop just international institutions and just international law.
Kev words cosmopolis; ethics; hermeneutics; Hobbes; international institutions; international legal personality; justice; legal theory; natural law; phenomenology: postmodemism; recognition I.
INTRODUCTION
'If modern law is law without God, then postmodern law is law without Man.'' But can law do without Man? It cannot, and yet this is the situation we face here. It is among the urgent challenges of today: is man indeed nothing more than a scattered locus where contingency rules, an atopos subjected to all kinds of forces which determine who he is, rather than that man constitutes himself and the world he lives in? The philosophical attack on man - best known as 'la fin de l'homme' in the version of Foucault - cannot remain without response, including from the discipline of international law. The problematic of the subject underlies legal personality as well as legal (and ethical) responsibility. Traditionally, the legal subject presupposes
*
I.
Assistant Professor, Department of International Law, School of Law, Universiteit van Amsterdam. This article is part of the research programme T h e International Constitutional Order' of the Amsterdam Centre for International Law, Universiteit van Amsterdam. Many thanks to Catherine Brolmann and Anthony Carty for their comments on an earlier draft. The first drah of this article was written while the author was a Visiting Fellow at Queen Mary,University of London (summer 2006).I would like to express my gratitude to Queen Mary School of Law for their pleasant and efficient assistance and in particular to Malgosia Fitzmaurice and Michael Lobban for their stimulating conversations. A. Carty, Post-Modern Law: Enligktcnment, Revolution, and theDeath ofMan (1990).
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the human subject in the modernist conception - that is a single, coherent, unitary and autonomous entity, which does not really change with time so that its promises have validity in the future, which can thus be the addressee of law and which can be held responsible for its actions.' With this subject being so fundamental to law, it is impossible not to respond to the proclamation of 'la fin de l'homme' and to the replacement of the modern identity of the subject by the notion of the fragmented Selfwithout essence.How can such an unstable Self act? How canit change the world through actions? Where does it leave (the bearer of) responsibility? If these are pertinent questions with regard to the individual human subject, they are even more so with regard to collective entities such as, notably, the sovereign subject we call state. The attacks on both the individual and the collective (e.g. the state) Self are (philosophically) intertwined. This is self-evident as the individualist, subjectivist perspective has marked the deep structure of international law. Moreover, this individualist and subjectivist understanding of international law draws on one particular conception of the modem subject. It is the Hobbesian perception of man that has been transferred to the international level, and with that transfer factors of ethics and morality have been excluded from the intemational society and its legal order.3 With the transposition of the Hobbesian understanding of man as an egoistic being and of 'the state of nature' as a situation of war of all against all, the conception of the international society as anarchy due to self-interested state conduct has come to ground our discipline's thought. The Hobbesian vision of the amorality of the state and of international anarchy has pushed alternative perspectives that sought for representation of morality and justice at the international level to the margin or beyond. To be sure, Foucault's announcement of the 'End of the Subject' includes an attack of precisely the idea of the state person and its identity as the sovereign and amorally operating Leviathan. But this has affected our discipline perhaps even more. Foucault's rejection of the traditional theory of power and his (related) attack on Leviathan does not end the Hobbesian state of war but, on the contrary, moves it to an even more fundamental level: namely at the basis of society, between its members, and even to the inside of the fragmented Self. Foucault's resentment towards Leviathan is understandable, yet the means he proposes to eliminate the Sovereign monster and to reconceive power without a wielder is not acceptable
2.
.
The human subject may act individually as well as collectively.When it acts collectively aseparate autonomous subject may be formed which can be an addressee of law in its own right. Again, the existence or constitution of this (new) subject is understood as quite unproblematic, merely an issue of how the will of the new subject is formed by the collective of human subjects. This is not to say that Hobbes's comprehensive philosophy does not include both political and moral philosophy, but merely that his concept of the natural condition of mankind - the state of nature in which men live in war as no absolute authority exists -became the model for thinking about the intemational society, i.e. a society which has not entered into asocial contract and which lacks a supreme power to enforce moral-juridical action. Inother words, according toHobbes, for moralaction to exist, man must haveescaped from the state of nature and have given up his natural right of self-preservation. Otherwise, the fear of a violent death - without a government or sovereign power to protect him and to enforce order - justifies the right to self-defence. For morality and law to exist, a sovereign power is required. In the state of nature a moral action may be too high a risk since it may be abused rather than met in a mutual way.
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Non-State Actors and International Law PAUL R I C O E U R A N D I N T E R N A T I O N A L L A W
either. As much as I agree with the rejection of the Hobbesian conception of the state in its 'state of nature', I do not accept the consequences of Foucault's theory of power either. In the following, I shall instead draw on Hegelian-inspired thought in
order to reintroduce morality as part of the 'state of nature' and - proceeding from this model - as part of the international society and its legal order. Just as law cannot do without justice it also cannot do without man. Both propositions will be defended here. Clearly the postmodern critique of the modem subject has substance and value. It seems fair that the fiction of the legal person as a subject (both individual and collective) coherent and monadic, and thus capable of acting upon one unitary will with univocal (speech) acts, is under siege. But if, as in the postmodernist view, the (human) subject loses its existence, the legal subject, too, loses its significance. The rejoinder in this paper aims to find a way out of the deadlock which the 'end of the subject' creates for international law. In particular, it means to offer a first attempt for reconstruction of the notion of the (legal) subject. Such a reconstruction is necessary because, it is submitted, (i) (international) law ultimately requires a connection between the legal subject and the (human) subject, who is capable of acting and can be held responsible, and who is also capable of participating in the creation of law, as without this capacity democracy and the Rechtsstaatcannotexist. (ii) While taking account of the insights offered by postmodernist critique, this paper thus makes an attempt to transcend the deconstructive philosophies of the subject and to save the viable subject. The reconstruction of 'subjectivity' or 'personality' in the way suggested here reflects the subject's deep and inherent relationship with others and allows for ethics to ground law. (iii) The current inquiry into international legal personality is both descriptive and prescriptive in nature. On the one hand, the phenomenon of the (legal) subject is described and explained, so as to offer a better reflection on, and analysis of, its existence. This holds for both the individual and the (so central to international law) collective subject. On the other hand, our attempt at reconceptualization has a clear normative aspect. Reconstructing (international) legal personality on the basis of anthropology and ethics as an inextricable part of the identity of a person results in a conception of (international) law as justice. And this means that international legal personality reconceptualized along the lines suggested in this paper functions to develop just international institutions and just international law. First, the critique of the subject will be summarized in the variant of Foucault. Subsequently, I shall introduce the philosophical defence of the human subject as formulated by the recently deceased French philosopher Paul Ricoeur. Coming from phenomenology and hermeneutics, Ricoeur is able to save the capable and responsible subject and to defend it against its total fragmentati~n.~ His project- the 'hermeneutics of the Self -is about theunderstanding and explanation ofthe human
4.
Paul Ricoeur is hard to pin down in terms of philosophical traditions or schools. He moved in areas such as psychoanalysis, political theory, theology, existential phenomenology, philosophy of language, moral philosophy, and ethics. His ideas on the human subject as explored in this paper draw on philosophy of language (semantics and pragmatics), analytical philosophy, hermeneutics, and ethics.
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subject or Self, and in this process of inquiry the Self makes its (re)appearance.s It is a worthy response to Foucault's proposition that man is merely a construction of impersonal forces, as it recognizes that man is constituted in relation to the world outside but not fully by this outside world. The 'hermeneutics of the Self captures how the Self constitutes itself by narration and interpretation in pursuit of the Good Life. From the premise of the 'hermeneutics of the Self we instantly discern the ethical-moral dimension of this philosophical defence of the subject: 'the selfhood of oneselfimplies otherness to such an intimate degree that one cannot be thought of without the other, that instead one passes into the other, as we might say in Hegelian term^'.^ Man constitutes itself in relation to others. Ricoeur places the Other, not only (i) in the face of the other person, the otheniess inherent in intersubjective relations, but (ii) also in the experience of one's own body as an encounter with Otherness. Finally, (iii) otherness is implied in 'the most deeply hidden' relation of the Self to itself - which is conscience. Conscience is conceptualized as an Other voice in one's mind which manifests itself as 'attestation'- the key word of Oneselfas Another and a central concept of the 'hermeneutics of the Self as developed in that book. In brief, the self appears in optimaforma when it attests to its convictions. It then answers ethical questions, and its appearance provides a new kind of certainty'here I am'; as such, it has epistemic and ontological value as well. Ultimately, this is also the Self which constitutes itself by recognizing its responsibility and by seeking recognition by others. Ricoeur thus moves towards a Hegelian understanding of reciprocity as the constitution of selfhood and transcends the original asymmetry that characterizes the relation to others. With this move he also adopts Hegel's response to Hobbes's conception of man and the state of nature and facilitates the reappearance of morality in the state of nature and the order built upon it. Law is one of the institutional orders which mediate and organize this struggle for recognition at the impersonal level. Law mediates the self's impersonal relations - that is, the relations between the Self and 'distant others'. In these relations the Self also attests to its convictions by acting upon its desire to live in 'just institutions1.7In Ricoeur's own words, the just 'is first an object of desire, of a lack, of a wish. It begins as a In other words, man's quest for happiness marks wish before it is an imperati~e'.~ his relations with others both at a face-to-face and at an impersonal level. Part of the purpose of human life is to aim at living well also with, and for, impersonal others, hence, to live well even at a global level. Thus justice is not the virtue of the intersubjective relation (that would be friendship) but the virtue of the impersonal or institutional relation with faceless others. Institutions facilitate the transition 5. 6. 7.
8.
P. Ricoeur, OneselfasAnother(rgg2), translation of Soi-rnhnecommeun autre(1g90). References hereinafter are to OneselfasAnother. Ricoeur, supra note 5 , 3 . With the notion of institution, Ricoeur refers to structures which mediate the relation of distance from the other, the other of impersonal relations.This is 'the other for justice': institutions should mediate the virtue of justice in relation to the distant other - the other for justice is 'anyone' or 'each'. Among these orders of institutional mediation, these social institutions, is the juridical form of institutional otherness or the legal order: law as an order structures interaction and binds the agent to others. But the institutional condition is not a merely legal one; without social institutions and the political institution we would not associate with distant otherness. The juridical system mediates association with others: without it we cannot aim for the good life. Our sense of justice makes us aim for just institutions, i.e. distributing to each his due. P. Ricoeur, TheJust, trans. David Pellauer (looo), xv.
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from the interpersonal to the societal plane (from the virtue of friendship to the virtue of justice) and so the ethical aim arrives at its fullest scope : h chacun son droit. Thanks to international institutions -including international law -I live in relations with faceless other members of humanity. Justice as an imperative is aimed at peace: justice so conceived thus demands that international institutions and law serve peace and not war or revenge. For instance, the beginning of justice done to victims of human rights violations is recognition of the facts; and thanks to the many truth and reconciliation commissions this is also now part of the institutional structure of the international community.9 This perspective of just institutions may thus also serve tocontaincriticismsofcurrent institutionalrealities, which are predominantly power structures and which fail to recognize that justice should rule also in relation to the less powerful entities. Justice has an ethical content: the requirement of equality. Justice is distributive to the extent that it demands that social institutions promote the good of those who are part of them (the members of society); this includes the poorest and those who suffer most, even on a distant continent. Justice is served when institutions are transformed such as to create just situations - that is, situations in which the capabilities that people choose and value - such as those of being fed,of bodily health, ofbeing educated, ofexercising practical reason, of taking part in the life of the community, or of expressing oneself freely - are fully recognized. Justicethusis a substantivenotion,itis an intrinsic part of ethical intentionality. The demand for justice includes a demand for institutions which recognize and organize human responsibility, for ourselves as well as for others. In international law, the right to (internal and external) self-determination of (indigenous) peoples or ethnic minorities is one example of a concept that accommodates difference or otherness in the international legal system. Cultural (collective)rights or the recognition of selfdetermination often have to be fought for, since access to justice and its institutional structures is often difficult. Reflection on state sovereignty from the perspective suggested here includes the responsibility of states; after all, the inherent purpose of power is the good of the whole community (national and global), which includes both bodily and moral well-being. The doctrine of the responsibility to protect as it emerged within the United Nations concurs with this perspective.IOJustice as
However, Ricoeur does not argue in favour of amnesty, which does not 'proceed from the juridical realm'. If not part of the realm of justice, yet created as a political solution, amnesty creates a situation in which 'to the prevention of any pursuit of criminals, is added a prohibition even to refer to the facts themselves in terms of their criminal aspects. Therefore it is a question of veritable institutional amnesia that invites us to act as though something never happened'. Traumatic events have to be recognized by the perpetrators, victims have to be recognized, and a state should not allow misrecognition of this kind to be part of its history and identity. Amnesty denies memory, 'pardon gives memory a future'. Pardon can only be carried out by the victim; it is not aimed at forgetting but at 'the end of mourning'. Amnesty is 'the pseudo-juridical attempt to wipe out the facts'. Pardon comes within the realm of justice. Ricoeur, supra note 8, at 143-4. Justice demands institutions -includingsuch institutions as truth and reconciliation commissions - to take account of memories and the actual healing of the victims in order for genuine reconciliation and peace to be possible. 10. Sates, like other institutions, have to act responsibly too, which may come down to an obligation to protect with force the humanity of human beings threatened by gross human rights violations outside the state's own territory. Such humanitarian intervention, however, requires careful consideration of la soufrance des victimcs on the one hand and la violence de I'intmention on the other. There is un impe'ratifcate'gonque, le devoir d'assistance, but a de'chainement de la violence is prohibited too.
9.
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a virtue of institutional relations, including cosmopolitan relations, facilitates a critique of international law and institutions for their shortcomings with respect to justice: just institutions further the recognition of each actor by the other as a participant of the same international community." The recognition of otherness as an inclusion in the international (legal) order is given legal significance as a struggle for self-determination. Justiceas avirtue of global institutions challenges the international community to recognize humanity's universality as well as plurality and to confront misrecognition and misrepresentation of human plurality within institutional structures (as in the composition of the UN Security Council). Justice includes distributive justice and demands that the world take responsibility for its poorest members. The idea of a right to basic capabilities is formulated (below) with a view to implementing the standard of social justice. This conception of justice may come to serve as a basis for a critique of current international institutions international law and organizations - aimed at directing international institutions towards justice- that is, for the good of human beings and the distribution of certain basic capabilities, to be employed individually as well as collectively. Considering the current state of international society and the problems it faces, it is no luxury to reflect on a new ethos to contribute to our political imagination, to inspire global institutional reform, and to support and sustain the development of international law." The onset of the reconceptualization of the international legal personality
'C'est dans cette juste distance entre les partenaires affront&, trop prhs dans le conflit et trop CloignCs l'un de l'autre dans l'ignorance, la haine ou le mkpris, qui resume assez bien, je crois, les deux aspects de l'acte de juger: d'un cBt6 trancher, mettre fin l'incertitude, stparer les parties; de l'autre, faire reconnaitre par chacun la partque l'autre prend i la meme sociCt6 que lui,envertude quoi, le gagnant et le perdant du procks seraient rCputes avoir chacun leur juste part B ce scheme de coop6ration qu'est la sociCtC.' P. Ricoeur, Le Juste (1995)~at192. Ricoeur was asked in an interview, 'Est-ce que cela veut dire qu'il faut constituer un gouvernement international, ce qui pounait aider B resoudre beaucoup de problemes? Paul Ricoeur explained: 'Non, je ne pense pas. Notre problkme est sans pric&dent,car nous n'avons comme des sujets de droit et de force que de pays nationaux. Notre tdche n'est donc pas de creer une entit6 internationale qui serait l'Etat-Nation de la force " X . Maintenant nous avons une realit6 tout B fait nouvelle qui devrait former quelquechose comme un "concert desnations".'Question: 'C'est ce que j'ai voulu dire en pensant B la HdCration envisagee par Camus.' Ricoeur: 'Moi, je pense que de ce point de vue c'est Kant qui a vu les choses au plus clair dam son projet de la paix Cternelle comme consequence du ius gentium, des droits humains. Je pense qu'il nous faut aller par ce chemin, car il est beaucoup plus difficile d'amver B un concert des nations qu'au pouvoir d'une nation. Maintenant nous sommes mis en danger aussi bien par le morcellement des nations que par la suprematie d'une seule force, c'est dire par le chaos mondial et la monocratie americaine. D'ailleurs les am6ricains eux-msmes ont difficult6 se situer, car les autres pays les obligent 3 jouer les gendarmes du monde, souvent meme contre leur propre volont6.. . Ce que je veux dire, c'est que nous disposons de l'expirience historique du compromis et des nkgociations. Dans les activites publiques on se heurte tout le temps aux nCgociations entre chefs et conseils administratifs etc. Les dCmocratiesqui fonctionnent aujourd'hui plus ou moins bien, sont itablies sur des compromis comme les droits des minorit&, le contrBle constitutionnel de la majorit6 dirigeante etc. C'est prCcis6ment cette experience historique du compromis qu'il faut 4largir. Magnifier le differend, c'est voir la realit6 telle qu'elle est, mais cela ne veut pas dire du tout qu'il a une existence obligatoire, c'est juste un fait. Dire qu'il ait le mot dernier, ga serait une capitulation. Aufait le differend n'est qu'une partie du probl&me.'Diplomacy, as the opportunity for dialogue and compromise and the further development of international law, has to aim for the transformation of the international order into an order of respect and mutual recognition. Interview by Yvaka B. Raynova, 'Quo Vadis?. (2000) 2 (winter) Labyrinth, See also A. Carty, 'New also available at http~/phaidon.philo.at/-iaVlabyrinth/~ooo/ricoe.htmlnftn~. Philosophical Foundations for International Law: From an Order of Fear to One of Respect'. (2006) 19(2) CambridgeReview ofIntcmationalAffairs311,See for a plea for diplomacy ibid., at 314: 'The process of critique reveals a new dimension of the person, that of understanding another world than one's own, comparable to learning another language or understanding one's own language as one among others. Translation and the
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developed here is normative or evaluative as well as descriptive - descriptive in the sense that as a reconceptualization leaning on phenomenology it is better suited to the (human and institutional) reality. This ethical-moral dimension of the'hermeneutics of the Self is not only decisive for Ricoeur's project to save the humansubject,itis also suited to be the philosophical basis on which a new theory of international legal personality can be grounded. In the final part of this article, I shall argue that (international) legal personality should be conceived of as part of the ethical-juridical identity of the Self (individual and collective) in impersonal relations on a cosmopolitan scale.As such, the contours of a reconceptualization will centre on an anthropological grounding: legal personality is a mode of identity (i.e. the ethical-moral identity of the self) at a particular scale: in relations with a third person or Other mediated by cosmopolitan institutions. The (international) legal identity of the individual or collective Self is conceived as part of a broader concept of personal or collective identity. Both the identity of, for example, a historic community (people, nation) as organized in a state and also a personal identity are part of this quest for legal personality,while both the individual and the collective self have the power to act (the power-in-common is the capacity of the members of the historical community) and the desire to live together in just institutions. (International) legal personality, then, is no longer a formal fiction which shields the internal reality from the external international plane and whose meaning is construed by international law, as best symbolized by the mask; it is a concept which links law to justice. The reconceptualization of legal personality proposed here is thus inextricably linked to a theory of law as justice. It recognizes that law has its origins in the moral and ethical realm and that in the pursuit of happiness, man seeks (social) justice which means that at community level, he desires to live with justinstitutions. Hence the following will also confront the denial of the (philosophical) possibility of a just international order. The aim of this paper - to build philosophical foundations for international legal personality - therefore does not sit easily with contemporary international law scholarship: it needs to defy mainstream positivist critique as well as postmodernist theorists. The early twentieth-century breach with nineteenth-century reified and sanctified conceptions of personality in international law has surely been a significant and valuable one. It aimed at the liberation of international law from natural law and at its separation from morality. This is a controversial yet cherished separation. We only have to remember Kelsen's redefinition of legal personality. He replaced the contemporary substantive concept - a 'hypostatization of ethico-political postulates' - with a functional and formal concept: legal personality as a point of attribution of the legal order and as a heuristic tool. He did so, however, for
capacity for compromise, as amutualrecognition ofsituations of conflict, are always liable to be denounced as appeasement, particularly in the Hobbesian context where the person is not considered to have any moral dimension. However, for Ricoeur a capacity for compromiseispart of the capacity of the person to recognize himself as a figure of passage from one regime to another, without accusations of relativist disillusionment or superficiality (Ricoeur 2004 [La recourse de reconnaissance], 307)'.
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substantive and, I would submit, even moral-political reasons.'3 Kelsen renounced any natural law or sociological grounding of international legal personality or international law for their potential threat to peace and stability. After all, such grounding would bring foreign (social, political, moral, etc.) elements to law and legal science and with these elements include uncertainty. Law and morality cannot be linked; any natural law approach would bring along ideology and metaphysics. Sein or Being has to remain fully separate from Sollen or Ought. This is also at the root of Kelsen's critique of legal fictions; he valued fictions as long as they were not falsifying the world by claiming to be 'natural' reflections - like, indeed, the reified state of his days. Kelsen rejected the ontological distinction between law and the state; in his view, there could not be a state person as a meta-juridical reality since it would be a political and moral threat to democracy and peace.'4 This rejection of reified personifying notions was a response to the nineteenth-century substantiation of the state person as a divine entity above the law. In order to bring the state under the (international) law again, Kelsen redefined the state person as the legal order to which the international legal order is superior and all-comprising. Ontological dualism (law and state) is replaced by a monistic - purely, formal legal construction within which international law is the juncture between the international and national legal order. The (state) person is the legal order, not an entity separate from its order. The legal order grounded in the Grundnom was fully detached from morality or social reality. Legal personality was purified from moral, mythical, or glorifying interpretations and reduced to a fiction helpful in understanding the legal systern.'s But this fiction and its formalist definition depend fully on a conscious, wilful, and capable subject. Law presupposes the existence of the subject -individual as well as collective - as capable of deliberation and decision-making. Action is human action, not action of power or language practices. Law and legal personality (as 'bearing' rights and duties) rest on the idea of subject as 'centre of agency'. Man is the only 'place' where a shift from the factual to the normative can take place: we wonder what to do, come to some conclusion, and act. This shift may occur within the individual as well as the collective. It is a prerequisite for legal notions such as attribution and responsibility. Even though Kelsen's redefinition of legal personality as the starting point of relationships is detached from the physical being of man - the legal person is not the human individual, merely the personification of (part of) a legal order which configures at the point of attribution-it is not detached fromwill, intention, and human action.16 But we must bear in mind that behind Kelsen's formalist approach to (international) law was the modernist drive to establish a universal and objective identity of international law. At the time, his formalism was indeed ethically motivated. 13. See for an extensive account of Kelsen's theory of legal personality, 1. E. Nijman, The Concept oflntemational LegalPersona1ity:AnInquiy into the History and Theory oflntemational Law (2004, ch. 3. It is argued there that in redefining law and legal personality Kelsen also defended democracy and fought to liberate individual freedom and responsibility. 14. See, for a substantiation of this claim, ibid. 15. See, for Kelsen's critique of legal fictions, ibid., ch. 3. 16. After all, the essence of the exercisingof a legal right is the expression of a will, and, in the case of political rights, this means 'the power to influence the formation of the will of the state'. Ibid., at 187.
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Kelsen's definition of (international) legal personality as the subject or point of attribution for legal relationships involving rights and duties prescribed by positive law became a classic one. Many variations have since been formulated, but within mainstream positive international law the established concept of international legal personality is indeed the formal description of 'subject of rights and duties under international law', that is, positive law purified from moral grounding. International legal personality can only be granted by sovereign states (i.e. the full international legal persons of international law) that create positive international law. In common legal use international legal personality is a formal concept which distinguishes the legal from the political and the moral, thus sustaining the circular because not anthropologically grounded - identity of positive international law. The contours of a new theory of international legal personality suggested here may indeed be placed in a natural-law tradition, as it conceives of law as justice. However, contrary to premodern and modem perspectives it does not conceive of natural law as a set of divine or universalistic dictates. Instead, grounded on the 'hermeneutics of the Self, this post-postmodern perspective on international legal personality and international law recognizes law as justice and builds on the idea of law as an order of recognition. Law is a social system which organizes our relations with others (part of which is the recognition of each other's otherness) and so mediates institutionally our pursuit of the good life at the impersonal level. International legal personality is conceived as the ethical-moral identity of the Self, with at its core the relation of Self and Otherness, on a global scale which thus links ethics to (international) law and incorporates the recognition of human plurality. On a global scale as well, the claims of respect for the dignity and identity both of individual human beings and of (cultural) collectivities challenge us to find a way ethical and juridical - to deal with plurality, to deal with otherness. Within the realm of international law, this requires a theory of personality that facilitates recognition in multiple ways: recognition of one's ownresponsibility,mutual recognition of each other's differences, both individually and collectively,on multiple scales (domestic as well as global). In this globalized world we do share a common universal destiny. To confront the problems which threaten the future of humanity, we need a global order which facilitates and stimulates the recognition of responsibilities. Like all other disciplines, international law scholarship did not escape the (postmodern) influence of ideas such as the marginalization of universal modem values; the disqualification of the general, universal approach; and the negative conception of law and legal language." Even if it has indeed become less obvious that power 17.
I note elsewhere that Foucault's influence on the intellectual conventions of our time can hardly be overestimated considering how it has moulded contemporary international law scholarship in general, notably regarding (partly related) concepts of state sovereignty and international legal personality in particular. The identification of law as the repressive and therefore negative form of power is largely to blame for that. Of course, there is this defining dimension of international law that law springs from sovereign power, but it has always coexisted with this other international law (historic) imprint, i.e., international law as a (morally driven) critique and limit of power. Foucault's reduction of law and legal concepts to the negative language of power only may have prompted many international studies to turn away from the general and universal. Ibid,, at 351.
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is countered with universal values, and even if it is true that plurality is the human condition, it remains our discipline's intellectual task and responsibility to continue reflecting on how to contain power through international law. One way to do this is through conceptual rethinking. International legal personality is a crucial concept of international law. Here I shall draw on, and expand my quest for leads for, a new theory of international legal personality which was started elsewhere.18 Such a theory cannot leave aside a response to the critical perspective, as Anthony Carty has pointed out.I9 I will take up that challenge and develop my argument on Ricoeur and international law - thus responding to what to my mind is often a sceptical if not nihilistic view on international law. Alongside the 'death of the subject' theme, classical notions such as sovereignty and personality have been deconstructed and the indeterminacy of international law has been laid bare. However, reconstruction still has to begin. The Foucaldian suspicion of subjectivity in general and the critique of the modem subject by critical legal scholarship in particular is extremely important, in that we have been forced to be more realistic about the world, to experience it more fully and recognize its darker sides. Now we have to come back with an answer which prevents us from tumbling into nihilism. Critical intemational law scholars such as Carty and Koskenniemi indeed agree that after a stage of deconstructive scholarship we now need to search modestly for seeds for a new theory of international legal personality.'' 2.
THEEND OF THE SUBJECT: THE POSTMODERNIST CHALLENGE
The idea of the human subject is at the heart of modernity, it is the point of departure for both epistemological andmoralmodernthought.It hasits originsin the Cartesian subject: the conscious Self exists because it thinks; man is defined by its ratio. In the Grotian version, 'man is rational and social by nature'. The modem subject is solid, stable, and coherent; it is rational, independent, and cognizable. Man is able to know and understand himself and the world, to judge it, and thus to act rationally and reasonably within this world. The modernist Self creates and re-creates itself, the world, and the meaning ofboth.Through this accumulated knowledge, he has found universal truths. Generally, thanks to human reason, his actions are (perceived as) teleologically driven towards order and justice. This is a not unattractive line of thought, and yet it is attacked forcefully. The 'end of the (human) subject' or 'death of man' theme is indeed one -if not the Although by now amuch quoted and popular only -core theme of postrnoderni~m.~' 18. 19. 20.
21.
Ibid. A. Carty, 'International Legal Personality and the End of the Subject:Natural Law and Phenomenological Responses to New Approaches to International Law', (2005) 6 MelboumeJoumal oflntemational Law 534. See,e.g.,A. Carty,'CriticalInternational Law: Recent Trends in the Theory of International Law', (1991)2 EJlL 66, at 81-2; M. Koskenniemi,From Apology to Utopia (zoos), 500.
Postmodernism completely rejects the alleged 'terror of reason' (in the sense of the absolute and timeless certainty that modernism (supposedly) conceived reason to be), because reason taken to extremes excludes everything that is different. Consequently, a certain hostility vis-i-vis the Enlightenment ideals of social progress, the emancipation and liberationof the individual,the existence of universal values, the possibility of absolute knowledge, and the supremacy of pure logical rationality (which were also all key principles
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statement,it refers to a complicatedbody ofthought oftenmisunderstood. Obviously the counterintuitive label of this debate is partly to blame. Most scholars, especially those within the international law discipline focused on improving human rights situations around the worid, intuitively repudiate it either for its factual inaccuracy or for its relativist andnihilist connotations. Apart from the simple reality that man is
living all over the globe and in many instances is suffering and in need of protection, there is also a legal motive. Without the (legal)existence of the human subject there is no entity to which to tie human rights - something which would cause an entire legal field to implode - or, there would be no entity to which to impute an action to or to hold accountable. But 'the end of the subject' debate is referring of course to a philosophical debate which has found its way into our discipline. The image of'the death of the subject' symbolizes a shift from the creating-subject(of language, power, or culture) to the idea of the constructed-subject (by language, power, or cult~re).~' As such, it is pivotal to contemporary debate in epistemology, ethics, and social and political philosophy, and in legal theory. We will meet the critique of the subject in the version of Foucault, who based his attack on an analysis of power operating discursively in s0ciety.~3 of modernism) can be felt in every discipline that has come under postmodern influences. It is in its revolt against modern reason that postmodemismis bothanepistemologicalandapoliticalmovement. Itscriticism of liberal political theory is a distinct feature of the postmodern view which we will also touch upon below. The 'death of the subjectlauthor' challenged Foucault also to respond to the question of the end of the subject in relation to language. In 'What is an Author? (1969) he argues that the author came into being and to the forefront of the discourse only as part of the juridification of the appearance of texts (who should be prosecuted for this insult?). M. Foucault, 'What is an Author?, in Foucault, Language, Counter-Memory, PracticcSelectedEssaysandlntewiews. ed. and introd. D. F. Bouchard, trans. D.E Bouchard and S. Simon (1977). Foucault's question is not 'who is the author?' but 'what is the author? His concept of the 'author function' does not refer to the individual who wrote the text, but rather to the author as a function of discourse. The author having come into being only recently in human history, Foucault joined in now that the author is dead. Here, too, Foucault's argument on the disappearance of the subject raises questions in relation to notions of intention and attribution of and responsibility for (literary or linguistic) actions. Rather than an identification of a 'who' Foucault's author is indeed again a locus of discursive practices. The author as a function of discourse, what we make out to be the author of a text, cannot fully be identified with the actual person of the writer. The actually identity of the author is not what matters, only the narrator that emerges as part of or as a result of discourse. As we shall see below. Ricoeur uses the notion of narrator too. The narrator who tells his life's story is, however, a 'who'. Ricoeur agreed to the methodological considerations of the death of the author in relation to reading and understanding texts in literary theory. Fragmented (incomplete) knowledge of the author may distort our understanding of a text, and in that respect it is better not to knowanything.But he didnot extendthe deathoftheauthorto the philosophical realm and thesubject of humanism. Reading is a different kind of communication from speaking with someone; the later model of communication is the basis of Ricoeur's dialogical ethics. Ricoeur meets Foucault when he agrees to the image of the subject or the self as a locus of practices or forces, but it is not a full agreement. While Foucault gives up the question of'who?, Ricoeur does not stop at the conclusion of the self as a void where forces rule: the self as narrator - the narrative self - exists only in relation to the other who gives him the opportunity to address and unify both its permanent identity and its responsive and dynamic identity. The dialectic relation between the permanent and the changing self, accommodated by the narrator, enables Ricoeur to save the human subject even though man has fallen from its throne. Ricoeur's response to Foucault's understanding of the author is implicitly addressed in this article. The subject may be ruled by discursive forces, forces of power or knowledge, but the self is capable of taking control and is not merely a product of language. The human subject may not be sovereign - i t . independent and autonomous - but it is not a fiction either. For the purpose of this article, two of Foucault's works in particular have been taken into consideration Power/Knowledge:Selectedlntewiews6~OtherWn'tings 197~-1977(198o),and Thc0rderofThings:AnArchaeology of the Human Sciences (1970). translation of Lcs Mots et Les Choses (1966). At a later stage, this project, on the problematic of the (legal)subject,will develop an analysisofboth Ricoeurand Foucault which also takes into account Foucault's later work Histoire de la SewualitC(whichincludes 'Le souci de so?). However, the present article focuses directly on Foucault's work on power. Therefore some of the most profoundly philosophical
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'La fin de l'homme' should first and foremost be understood epistemologically in relation to the human sciences.'4 Foucault argued for a change of focus: away from the human subject as the object of study, and towards all processes and mechanisms that constitute man. In his view 'man is a recent invention. . . [whose] appearance.. .was the efect of a change in the fundamental arrangements of kno~ledge'.~5 These fundamental arrangements of knowledge were formed by modern thought at the end of the eighteenth ~entury.'~ However, man's being and actions are actually largely (perhaps fully) determined by language and power. Therefore, 'Ought we not to admit that man will return to that serene non-existence in which he was formerly maintained by the imperious unity of Discourse?' This is the epistemological critique in a nutshell; Foucault poetically described the possibility of man 'erased, like a face drawn in sand at the edge of the sea'.'7 Consequently, to many the modern subject is no longer acceptable as the basis for bringing us truth; new - postmodern - methods to gather knowledge, to find the available fragments of truth, and to account for the phenomenon of man are needed. Foucault's redirection has profoundly marked political science and (international) legal theory. His argument that man is constituted by power manifests a rejection of the traditional (legal) conception of power in terms of sovereignty and legitimacy - a conception which he substitutes with a new concept of power couched in terms of knowledge and truth. This is not the place to elaborate on Foucault's theory of power or on the methodology of genealogy suggested to analyse power;28a few remarks will have to suffice. Legal and political theory, Foucault argues, have traditionally either advocated or attacked the power of the sovereign. But he rejects in the clearest terms the idea that the juridical edifice of state sovereignty is the correct explanatory model. In his view, power cannot stem from a mythico-juridical event like the social contract. For too long political analysis has been dominated by legal conceptions in general, and has been 'obsessed with' the notion of the sovereign person in particular.
or perhaps religious questions - the meaning of human life, whether and how the self can answer to existential questions of man's contingency, and the incomprehensiveness of humanexistence - for now are left unaddressed. 24. What Foucault meant to say is that the human subject as the object of modern thought, the subject which is the foundation and source of the human sciences, the cognizable self that has brought us a scaffolding of thought based upon itself, the subject involved in collecting knowledge and making meaning, that subject is fading away. His anti-humanist perspective is evidenced in his attempt to explain the existence of the humansciences and the fact that 'they are not sciences at all'; they merely serve the collectionof knowledge. Hence Foucault's anti-humanismis anti-subjectivismin thesense that it wishes to account fordevelopments, phenomena, for history -let us say - without reference to the human subject, also in order to account for the constitution of the human subject itself. Foucault, Order $Things, supra note 2 3 , at 366. 2 5 . Ibid., at 386-7. 26. Thus, viewed from a cultural - historical perspective, at the end of the eighteenth century the emphasis shifted from God (or his representative on earth: the king) to the human subject as the basis of knowledge and truth, and this new man gained the divine perspective of looking at himself as an object of study. Ever since, modem thinking has defined man by his relation with God or king, and for this reason the death of God has to involve 'the disappearance of man'. 27. Foucault, Order of Things, supra note 23, at 386-7 (emphasis added). 28. See, for more extensive analysis of Foucault's theory of power and his rejection of the traditional liberal or juridical theory of power, Nijman, supra note13, at 370 et seq.
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What we need, however,is a political philosophy that isn't erected around the problem of sovereignty nor therefore around the problems of law and prohibition. We need to cut off the King's head 1i.e.the locus of sovereignty]:in political theory that has still to be d0ne.~9 Having thus beheaded the king in order to 'escape from the limited field of juridical Foucault consequently turns his investigation sovereignty and state instit~tions',3~ to power outside the juridical schema of sovereignty and on to the micro-level of society, where the effects of power are most noticeable. By the beheading of the king (or the killing of the unifying sovereign spirit that constitutes Leviathan) Foucault deprives political and legal theory of its unifying concept, the possibility of singularity. In his view, 'rather than worry about the problem of the central spirit,. . .we must attempt to study the myriad of bodies which are constituted as peripheral subjects as a result of the effects of power'.jl In other words, Foucault renounces sovereignty and personality as adequate concepts, and he refutes our preoccupation with the transformation of the individual will into the will of the state person and with oppressive (sovereign) power as an attribute of the state personality. He thereby intends to liberate power (and the study of power) from its modernist legal box and to lay bare that the human subject is constituted by power/knowledge regimes. The human subject, then, does not pre-exist in relation to these powerlknowledge regimes. Rather, it is through power mechanisms within discourses of truth and knowledge that the subject emerges. Mechanisms of power function through 'the production of effective instruments for the formation and accumulation of knowledge,. . .power, when it is exercised through these subtle mechanisms, cannot but evolve, organize and put into circulation a knowledge, or rather apparatus of knowledge'.j2 In brief, power is a relational phenomenon of domination and subjugation that operates on the most local and concrete level of society, and within knowledge or truth discourses. Truth legitimizes power or, put differently, power is in the hands of those who define truth. Texts and discursive practices are thus powerful tools. Politics has become a discourse of truth in which numerous opinions operate, rather than just those of the few appointed members of the legislature. Who among the participants in this discourse are marginalized? or, whom does the discourse serve? In other words, 'the political question.. .is not error, illusion, alienated consciousness or ideology; it is truth itself.33 It is the question ofhow power works at the most local and concrete level; not so much at the legal level, but there
29. 30.
Foucault, Power/Knowledge, supra note 23, at I 21. Ibid., at 1 0 2 , 187. 3 I. Ibid., at97-8:'[It]wouldbetheexact opposite ofHobbes'projectinLeviathan,andofthat,Ibelieve,ofalljurists for whom the problem is the distillation of a single will - or rather, the constitution of a unitary, singular body animated by the spirit of sovereignty -from the particular wills of a multiplicity of individuals.Think of the schema of Leviathan: insofar as he is a fabricated man, Leviathan is no other than the amalgamation of a certain number of separate individualities, who find themselves reunited by the complex of elements that go to compose the State, but at the heart of the State, or rather, at its head, there exists somethingwhich constitutes it as such, and this is sovereignty, which Hobbes says is precisely the spirit of Leviathan.' 32. Ibid., at 101-2 (emphasis added). 33. Ibid., at 133 (emphasis added).
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where the state connects with the existing cluster of relations, where power is also 'productive' and 'hold[s]good'. Thanks to this productive nature of power, Foucault is able to explain how man comes about, how powerlknowledge regimes constitute subjects through subjection at themost concrete andactual level: 'how it is thatsubjectsaregradually,progressively, really and materially constitutedthrougha multiplicity of organisms, forces,energies, materials, desires, thoughts e t ~ . ' 3With ~ the proposition that the human subject is a product of power, Foucault identifies the individual subject as the locus of a fragmentary, incoherent self, constituted by the forces of power. The individual is no longer the prime mover: the constructed self has replaced the constituted subject. Evidently, this paradigm shift has radical implications. It means the 'end of the subject' in its modem identity of creator (of meaning and the finder of truth). In rejecting the subject-dependent concept of power, Foucault envisions politics without an identifiable subject to direct the political process: between action and reaction, politics develops discursively and the only direction it takes is from the objective it is intended to serve. However, faced with the practical political side of his end-of-the-subjectargument, Foucault recognized that 'Flere you can't escape the question of the subject, or rather the subjects, certainly, and this is what is preoccupying me'.35 Foucault shaped a hypothesis starting from the following question: if power is not sovereign power, who then participates in the struggle for it? He suggested that the struggle for power was a struggle of 'all against all'. In his view, there are no 'immediately given subjects of the struggle', for example the proletariat on the one hand and the bourgeoisie on the other.'We allfighteachother.Andthereisalways withineachofus somethingthat fights something el~e.'3~ Ultimately, the individual is a fragmented unit composed of 'sub-individuals', which is radically different from the coherent subject envisaged by modernism. In short, Foucault considered the human body to be 'the locus of a dissociated Self, which 'adopts the illusion of a substantial unity'.j7 In addition, we are all destined to fight each other and ourselves. And so, without the constituent subject, the world is ready to come apart. As such, the loss of human subjectivity is indeed the end of humanism, both It is the loss of the self as a stable epistemologically and morally - p0liticall~.3~ and coherent entity. Man's incoherence is applauded, rather than responded to by a philosophy that would enable man to re-establish a sense of wholeness by determining or finding 'meaning'. Contrary to the modernist project, which aimed to allay (but not deny) human anxiety, postmodernism celebrates the uncertainties and contingencies of life. 34. Ibid, at 97-8 (emphasis added). Ibid., at 207 (emphasis added). 36. Ibid., at 208 (emphasis added). 37. Foucault, Orderof Things, supranote 23, at 366. 38. It opposes, for example, the subject idea of existentialism, which considered the individual human subject the only entity capable of willing, of bearing responsibility,and creating meaning. It also considered it to be the only possible foundation in our quest for knowledge and in the moulding of history and building of progress.However, it is also true that Same through his brand of humanism ended up supporting Stalin and defending the Gulags. 35.
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But serious questions naturally emerge:if an individual is an effect of power, does this mean that we are never powerful andable to act?There is debate among scholars as to whether Foucault's rejection of subject was indeedarejection of agency. The two are related, but not identical, concepts. However, if the subject is merely a function of relational structures of power/knowledge, as a general consequence it must be that all agency is determined by its context, and no autonomous subject and agency can exist. For those concerned with ethical and legal questions, this is inconceivable. But how can we retain the human subject as an agent capable of evaluation and of ethical andlegitimate choices, notwithstanding this influential theoretical context? Who or what should bear responsibility in the postmodern world where man has ceased to exist -power relations or linguistic structures? Or, put differently,ifwe live in an age without a human subject, what implications does this have for individual and collective responsibility? It is with the questions of capacity and responsibility that we turn to Ricoeur's alternative.39
3. MEETING THE POSTMODERNIST CHALLENGE: PAULRICOEUR'S 'HERMENEUTICS OF THE SELF' With his 'hermeneutics of the Self, Paul Ricoeur engages with Foucault's critique of the subject and in particular with his attack on man's coherent identity. Ricoeur's objective - to defend and save the subject as the self-constituting Self is ambitious. That the individual is at least partly constructed by society, or social structures (language and power regimes), seems undeniable. And yet, even though man cannot constitute her- or himself independently from social regimes, according to Ricoeur there are moments or events in which man manifests his or her autonomy and coherence as a subject with agency. Ricoeur meets Foucault's contention concerning the subject with a combination of epistemological respect and normative di~agreement.4~ For some time, it was fashionable to consider Ricoeur as 'just another' philosophy professor, but today scholars increasingly value his work differently?' Nonetheless, the writings of Paul Ricoeur are unknown territory for 39. See,for anothersignificant defence of the notion of the subject in response to Foucault's theory of power and theendofman.].Habermas.'AnAlternativeWay out of the Philosophy ofthesubject Communicative versus at 589-616 Subject-Centred Reason'(1987). rn L Cahoone (ed.). From Modernism ro Posrmodrrn~sm(aoo~). 40. Ricoeur clearly distinguishes between structuralism as a method of text analysis and structuralism as a philosophy. Structuralism in the first sense perceives text autonomously: the text is taken as an objective thing. '[it] escapes its author and signifies for itself. Ricoeur accepts the structural analysis as a 'stage' in his reasoning, but rejects the philosophical conclusion subsequently drawn on the basis of this practice, i.e. that 'the subject is eliminated from its position as the author of discourse'. Foucault's 'idea that man is a recent invention seems to [Ricoeur]sheer invention'. P. Ricoeur, Critiqueand Conviction (1998), 77-9. 41. His has indeed been a 'reconnaissance tardive', since recognition of his theory took well into the 1980s to become firmly established. EMartel.'Levoyage philosophique de PaulRicoeuf. (1997) 357 Magazinelittiraire. The philosopher Charles Taylor has confirmed the importance of Ricoeur's contribution to the debate. C. Taylor, 'Une philosophie sans frontikres', (2000) 390 Magazine LittCraire, Dossier: Paul Ricoeur, morale, histoire, religion: une philosophie de l'existence, at 3-1. Ricoeur acknowledges the strong influence Taylor has had on his own work on ethics. Ricoeur, supra note 8, at xiv. It is suggested that Ricoeufs Protestantism is partly to blame for the fact that recognition came to him relatively late, although he has always 'insisted on a strrct separation between philosophy and farth' There IS no doubt that t h ~ rehgious s orientatron 1s a srenificant Dart of the exolanation for the lone ~ e n o dof neglect of hrs work In France' G Guttrne, French Philosophy in the Twentieth Century zoo^), 364-5.
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most international law scholars. Meanwhile, his phenomenology of the capable self offers us a much needed way of engaging with the critique of the subject and, ultimately, of saving the (individual and collective) Self as an agent - as a capable and responsible subject. As such it may serve as an anthropological grounding for the new theory of the legal subject proposed below. Ricoeur's 'hermeneutics of the Self offers an alternative -andintuitively it seems a more accurate - understanding of the subject. He distinguishes two basic attitudes towards the problematic of the Self: one of 'overevaluation' and one of 'underevaluation' of the Self. He refers to the first as 'the exalted cogito' as first presented by Descartes and to the second as'the shatteredcogito'ofNietzsche42-or, in theversion of Foucault: the fragmented, contingent Self. Ricoeur's 'hermeneutics of the Self is a philosophy of the subject that neither 'exalts'not 'humiliates' the subject, but which discerns the 'acting and suffering' subject and trusts the reliability of its 'attestation' beyond suspicion.43 It is true that man's inner world is as much an interpretation as the outer world, yet rather than seeing Nietzsche's anti-cogito as the inverse of the Cartesian cogito, and accepting its prevalence, Ricoeur regarded the anti-cogito as a sign of 'the destruction of the very question to which the cogito was held to give an absolute answer.'44 The real question which the Self is held to answer is the question of the good life, and not the question of the ultimate foundation of knowledge. Indeed, it is in living a good life that the Self constitutes itself in relations with others. In Oneselfas Another, the Self is posited indirectly as it appears in four modes or dimensions of identity, as (i) a speaker who uttered a remark; as (ii) the agent on whom an action depends and who thus manifests his power-to-do; as (iii) the narrator who recounts his life; and as (iv) the self who is imputable and responsible. This manifestation occurs through self-identificationwhen the Self is called on to answer to the question of 'who? which Ricoeur poses in four different ways; in answering, the Self attests to its capacities and recognizes itself reflexively. Let me be more concrete. Ricoeur recognizes that the Self is dependent on its social context and grounds the capable subject on reflexivity and otherness. He demonstrates that 'The selfis implied reflexively in the operations (e.g. speaking or acting), the analysis of which precedes the return towards this ~elf.'~5 In other words, the Self manifests itself when speaking and acting, because the act of speech and the act of acting refer to the Self reflexively as the speaker or actor. To make this self-identification apparent, Ricoeur uses the 'detour' of four questions of 'who?: who is speaking? who is acting? who is The first Cartesian cogito refers to the modem tradition in philosophy that tries to find in the subject an absolute foundation of knowledge. With the image of the shattered cogito, Ricoeur characterized the tradition which turned against this positioning of the 'I' as a valid foundation for knowledge, because this view ignored the fact that in order to be able to doubt, think, and self-reflect the cogito needs the mediation of language. Since the use of language is not something literal, non-figurative, neutral, or truthful in itself, there is no language that is completely free ofdeceit, nolanguage that is not somehow suspect, and therefore any foundational claim of the cogito to certainty has to be rejected. Ricoeur, supra note 5, at 4 et seq. 43. Ibid., at 18-22. 44. Ibid., at 14. '[Tlhe three major features of the hermeneutics of the Self [are]. . . the detour of reflection by way of analysis, the dialectic of selfhood and sameness, and finally the dialectic of selfhood and otherness'. Ibid. at 16. 45. Ibid., at 18 (emphasis added). 42.
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narrating her or his life story? and, finally,who takes responsibility for these actions or events?46Each question asks for identification. With every answer - 'I am1- selfidentification and self-assertion occur. Every assertion, 'I am speaking', 'I can make something happen (intentionally)', 'I am narrating myself', 'I am holding myself accountable', constitutes a true foundation through identifi,cation by selfdesignation, always in relation to others. I speak to someone, someone ascribes an action to me as an agent,47 I talk narratively about myself with someone. By answering these questions,not only do we identify ourselves,we also attest to our capacities-we can speak, act, narrate, hold ourselves responsible for a bad or prohibited action, and in other words we can determine action as good and obligatory. I will come later to the social form of human capacities (i.e. the capacities as claimed by coIlectivities and submitted to public evaluation and approval - action in common, or agency), in particular to the capacity of narrating and taking responsibility, and concentrate here on human capacities in their individual form. In answer to the first two questions - who is speaking? and who is acting? - the Self identifies itself and attests to its capacity to speak and its power to act. 'I am' thus confirms the human subject as capable of speaking and acting. The self designates himself as agent by actions and speech acts. The subject is thus posited in an indirect manner through detours of analysis (by way of analytic philosophy and philosophy of action and of language) which bring out the way in which the Self is implied reflexively in these operations. Here, we concentrate on the stage beyond self-identification (as self-designation) when our personal identity appears. Ricoeur describes our personal identity as an identity which may be constituted from contingent elements (remember Foucault), yet these elements are united or 'emplotted' in the narrative of our lives. The narrative identity of the Self then becomes manifest in the capacity to narrate one's life story or to recount events experienced in relation to the world.48Ricoeur explains how we attest to this capacity when we answer to the third of the questions identified above: 'who is narrating? The subsequent identification of the Self by selfdesignation attests to the human capacity to recount and interpret life - its events, encounters, and its coherence which exist in spite of its contingency. It clearly brings to light the hermeneutic character of the Self. In the narrative identity of the Self, Ricoeur reconciles our identity-idem(our sameness of body and character, our stability illustrated by our genetic code) and our identity-ipse(selfhood,the adjustable part of our personality):49 Through our narrative identity our personal identity, 'which In the nine studies in OneselfasAnother, Ricoeur examines all four questions extensively. The first two studies are exercises in the philosophy of language (semantics and pragmatics) and deal with the question, 'who is speaking? As speaking is actually the performance of the act of speech, the subsequent two studies in action theory on the question'who is acting? are also closely re1ated:'by implication speakers are themselves actors'. Ibid., at 17. 47. Ascription or attribution to a person is part of the meaning of intentional action. See P. Ricoeur, The Course ofRecognition, trans. D. Pellauer (~oos),at 98. 48. Ricoeur, supra note 5, at 147-8. 49. Identity-idem and identity-ipse accord with one another dialectically. The first cannot be thought through without considering thesecond,but they may over1ap.Ricoeurintroducesthe notion of'acquiredident$cations by which the other enters into the composition of the same. To a large extent, in fact, the identity of a person or a community is made up of these identifications with values, norms, ideals, models, and heroes, in which the person or the community recognizes itself. Recognizing oneself in contributes to recognizing oneself by.
46.
41
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IANNE E. N I l M A N
can be articulated only in the temporal dimension of human existence',so endures throughout our lives; it accommodates both the permanence and the change of personal identity. It 'mediates' between selfhood as sameness in time and space (as 'uninterrupted continuity' or 'permanence in time') and selfhood as 'discontinuity and instability' enables the Self to discover something new and to change. In other words, the Self of our narrative is not the same as the character of the identity-idem, but it emerges from the interaction of the identity-idemwith the world, and from the way in which we recount that interaction. Personal identity is lost if selfhood is no longer upheld by sameness - that is, if selfhood loses its 'corporeal anchoring in the world'. The narrative identity gives a locus to both the permanent and the changing identity in this dialectic of the Self (ipseity). The character of these narratives,5' the narrative Self, evaluates its life and reflects on those events and actions that invite a favourable or unfavourable judgement. Narrating counts on a listening ear. It occurs mostly in dialogue with others as well as with oneself as another. The narrative identity of the Self attests to the capacity to describe and evaluate one's actions and life events and account for them to others. In other words, it implies in its structure mediation between description and prescription: 'there is no ethically neutral narrative'.S2 Ethical and moral reflection leads us naturally to the next mode of the identity of the subject. This fourth mode of identity - the ethical and moral identity of the Self - thus has narrative identity as a prerequisite. Like our other identities, our ethical-moral identity manifests itself in relations with ourselves, with the more intimate Other (the 'you' of the interpersonal), and with the third person or distant Other. This last relation, of the Self with the distant Other, requires mediation by institutions and occurs on different scales, for example, nationally but also internationally53 The fourth question in the quest for the capable human subject - 'who takes responsibility for these actions and accepts moral imputation? -enables the Self to identify itself as an ethical and moral being. It has the capacity to take responsibility for its past actions, to repair a bad or illegal act, and to take responsibility for action which is needed in The identification with heroic figures clearly displays this otherness as one's own, but thisis already latent in the identification with values which make us place a'cause" above our own survival'. Ibid., at I 21 (emphasis in original). 50. Ricoeur, supra note 5, at I 14. 51. The character of a narrative or life story is the character of what Ricoeur terms 'emplotment'. With this notion, he engages with the (postmodern) theme of the total contingency of life and the Self, the absence of any kind of unity and the resulting loss of meaning. In Ricoeur's view, the discontinuity and instability of selfhood does not mean that contingency is all there is. By the notion of emplotment he offers a narrative conception of the connectedness of life. By the Self's emplotment, i.e. by the configuration of events into a narrative, an event is transformed into a meaningful part of the narrative. The actions in the plot and its characters are necessarily related in the narrative, as predicates and actions are attributed to persons and 'the contingency of an event contributes to the necessity, retroactive so to speak, of the history of a life, to which is equated the identity of the character'. Ibid., at 142-7. 52. Ibid., at 1x5. 53. See supra note 7. An 'institution' is the structure that mediates living together associated with others in a (historical) community, such as a people or a nation or a region even, and which constitutes the social bond. We mentioned law as such a mediating structure and the political institution which constitutes the social bond of the polis is the most encompassing of social institutions as it creates the space in which all other institutions (such as economic, religious, and juridical institutions) can operate.Through the political institution called date citizens exercise their capacities in concert as 'power-in-common'. R'icoeur, supra note 5. at 196-7.
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the future. Hence the identification of the subject as the 'Self of responsibility' is the constitution of the subject capable of pursuing good (ethics) and respecting obligation (morality). The identification of the subject of imputation and responsibility by stating 'Here I am!' in a testimony attests most clearly to the Self. This is the Self that springs into action from a position of befuddlement over the multiplicity of practical possibilities induced by the modern anxiety of 'everything is possible, but what am I to do? into self-attestation: 'here is where I stand.' It is in response to the Other who counts on the Self, that the Self becomes one. In responding, ethically or morally, to the world one attests to oneself:Often this response holds a promise to be there or to act when necessary in the future. By its capacity to make and keep promises the Self (ipseity) distinguishes itself from its identity as sameness (idem). In other words, promise-making lays bare 'self-~onstancy':5~ I promised you, you can count on me, 'well, here I am'. Promising to be there for someone is paradigmatic of being oneself even when time has passed, it is a paradigmatic example of ipseity, and the other is essential for this event. The capacity to recognize one's responsibility as discerned in Oneselfas Another gets a more explicit role in The Course ofRecognition, in which Ricoeur develops the shift from imputability to responsibility. Here, the relationship with otherness evolves from a negative to positive one. In the scheme of Ricoeur, imputability refers to a negative relationship with the Other - that is, one has wronged the other and can be imputed in terms of this misrecognition of the other. Responsibility, on the other hand, refers to a positive relationship - that is, one feels responsible for the well-being of others. As such, this phenomenological shift from imputability to responsibility 'opens new horizons'beyond the reduction in the sphere of otherness to include responsibilities beyond the knowable or foreseeable effects of an action towards a more ethical and moral notion of recognizing one's responsibility for other persons:55 As a result of this change in emphasis, the idea of vulnerable others tends to replace that of damage done as the object of responsibility.. . . It is for the other who is in my charge that I am responsible.This expansion makes what is vulnerable or fragile,as an entity assigned to the agent's care, the ultimate object of his re~ponsibility.5~ Of course, our responsibility is not unlimited -if only because that would lead to indifference. Logically, the scope of our responsibility is determined by the extent of our power to do good and right. Likewise our capacity to do harm (and thus For the attestation of the ethical identity of the Self, the notion of 'self-constancy' is important. It gives permanence in time, independent of sameness and in spite of diversity and change. How can other people depend on us if we are not stable, coherent subjects? How can we trust the value of a contract if the subject changes? Ricoeur did not see the sameness of the body and character as the only expression of the continued self.He also identified'keeping one's word' as an expression of this permanence in time, and yet this does not overlap with the self's sameness. Keeping one's word challenges time and as such it has permanence in time, even though it is independent of the permanence of character. It involves the selfhood of the Self as a 'polar opposite' 6 the permanence of character, since it is not inscribed in the Self as sameness, but simply relates to the 'who? who has given his word. T o keep one's word'expresses 'self-constancy'by 'the faithfulness to a word' and indicates the ethical attitude of being accountable to the Other to whom the promise was given; it signifies honouring the trust that the Other has placed in your faithfulness. 55. Ricoeur, supra note 45. at 108. 56. Ibid.
54.
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our responsibility) is limited by spatial and temporal proximity57 In brief, being there for someone, as well as taking a stand on an issue in the face of multiple ethical alternatives, is the answer to the problem of the Self: the personal testimony (thoignage) of justice,s8 of aiming for the good life (part of which is the will to live with just institutions, as will be argued below). In answer to Foucault's fragmented, contingent Self, Ricoeur posits the Self as an atopos where nonetheless unity becomes evident once it is confronted with the Other - especially in situations of uncertainty, danger, or conflict which challenge the Self, who then acts upon his desire to do good. The expressions of the good and the just present a coherent and firm image of the Self: 'this is me' - 'here I am'. The Self which posits ethical and moral identity transcends the narrated (or constructed) Self. It is here that the self-identification of the capable subject findsits strongest case, according to Ricoeur: 'The autonomy of the self will appear then to be tightly bound up with solicitude for one's neighbor and with justice for each individuaL'59 Justice is to the life of the subject in social and political institutions what friendship or solicitude is to the subject's relations at the interpersonal level; they both represent the desire for the good life. The Self that is attested to in this way is not an ultimate foundation. But neither is it in a state of disintegration to the extent that no trace of certainty or unity remains. The unity that emerges from Ricoeur's studies is the thematic unity of human action - thus the certainty offered by the 'hermeneutics of the Self is not ab~olute.~" However, unlike the perspective of the anti-cogito, the prismlstarting point of attestation or 'testimony' at least provides the 'certainty' of trust. It saves the Self by placing 'trust' in the 'reliabi[lity]' of the attestation to the Self. Ricoeur thus arrives at a definition of attestation as 'the assurance of being oneself acting and s~fiering'.~'By the notion of attestation Ricoeur offers an alternative to the contemporary negation of man's future by pointing to the power of trust, or 'trust in the power to say [and] do', and hence in the power to act well and justly.62 We may say that the hermeneutic certainty of attestation is the 'ultimate recourse' in the face of announcements on the disappearing Self. While Foucault depicts the human subject as a product of historical and social influences and as the mere locus of these inter- and counteracting (power) forces, Ricoeur defends a subject that may, true to say, at times be divided and oscillating dialectically or lacking a centre, but that nevertheless attests to its coherence by narrating its own life story and, above all, by acting ethically, morally, and politically. Unfolding the modes or levels of identity of the subject, Ricoeur locates the
Ibid., at log. Which is - according to Ricoeur - the answer to the real question of the Self. See supra, text subsequent to note 43. Ricoeur, supra note 5, at 18 (emphasis in original). Oneselfas Anotheris set up as a series of studies of the problematic of the Self which make different analytical philosophical detours; the unity of these studies is their focus on human action: the ability to act is defining of man's humanity, and human action is treated as 'a fundamental mode of being'. When we ask, what sort of being is the Self? Ricoeur answers in terms of being as act and potentiality. Ricoeur, supra note 5, at 2 2 (emphasis in original). Ibid., at 22-3.
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ethical-moral dimension of the self and - as we shall see below - offers us a point of departure for the contours of a reconceptualization of (international) legal personality.
4. FROMTHE 'HERMENEUTICS OF THE SELF'TO THE SUBJECT OF JUSTICE OR LEGAL PERSONALITY Contrary to our discipline's customary approach, in this paper reflection on international legal personality does not take as a starting point the visibility of the actor in the eyes of the law - that is, where the law designates entities as legal subjects. In contrast, it starts at the base (as Foucault in a way suggested) in order to understand and explain how (international) legal personality emerges at a specific level of identity construction in the dialogical relation between the Self and the distant Other mediated by social institutions such as law. In other words, (international) legal personality can be reconceptualized as man's ethical -moral identity in relation to institutional otherness on a national as well as cosmopolitan scale. By taking ethical-moral account of one's actions in relation to third persons, one recognizes life in a political society and its legal system. We constitute our legal personality when we constitute our ethical-moral identity specifically in relation to 'distant' third persons (i.e. not in relation to ourselves or in inter-person relations) throughone of the mediating social institutions- in casulaw. It follows that legal personality or subjectivity is a continuation of, and inseparable from, the Self's ethical and moral identity. Hence the concept of the subject of ethico-juridical imputation and responsibility builds on the idea or reality of the capable human being.63 But what does it mean to act ethically and morally - hence, in conformity with what is 'good' and 'obligatory' - in relation to people outside one's personal sphere? Evidently,what this means depends on the relationship in which the Self is involved: with oneself (as another), with the near Other, or with the distant Other, that is one's fellow citizens.64 Each of these relations has a teleological and a deontological a~pect.~s Ricoeur defines the desire to live a 'good' life for all three relationships: 63.
'[Tlhere is a bond of mutual implication between self-esteem and the ethical evaluation of those of our actions that aim at the "good life" (in Aristotle's sense), just as there is a bond between self-respect and the moral evaluation of these actions, submitted to the test of the universalization of our maxlms of action (in the Kantian sense). Taken together, self-esteem and self-respect define the ethical and moral dimension of selfhood, to the extent that they characterize human beings as subjects of ethico-juridical imputation.' Ricoeur, supra note 8, at 4. 64. The following chart emerges: from left to right we have oneself, near other, and distant other, and from bottom to top the good, the obligatory and the practically wise. At the lowest level of the cha#, ethics have primacy over morality; from this Ricoeur derives 'the necessity for the ethical aim to pass through the sieve of the norm', and 'the legitimacy of recourse by the norm to the aim whenever the norm leads to impasses in practice'. 65. Ricoeur distinguishes between ethics which is teleologically oriented (actions which aim for the good life) -and morality - which is deontologically oriented, i.e. the realm of moral norms which are more universal and which may restrain human action. Ethics and morality are distinguished - human action as aiming for the good life or as focused on conforming to moral obligations. Like Aristotle, Ricoeur holds that human action is always aimed at something good and ultimately at the Good (Telos).But aiming for the good is not enough; human action should be submitted to morality - to norms which claim universality. Ricoeur proposes to establish '(I) the primacy of ethics over morality, (2) the necessity for the ethical aim to pass through thesieve of the norm, and(3) the legitimacy ofrecourse by the norm to the aim whenever the norm
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for the first the desire is for personal fulfilment; for the relationship with the 'near Other' the desire is for reciprocity in friendship; and with the 'distant Other' the desire is a fulfilled life in and with others in justinstitutions. We should not 'forget', Ricoeur underscores, that all in all the desire 'to live well with and for others in just institutions' is the foundation of moral and legal duties, rather than the fiction of the social contract.66In other words, just like the appearance of subjectivity in a general sense, the emergence of legal subjectivity requires otherness, that is 'institutional otherness'. The transition from the capable subject to thelegal subject (or the 'subject of real rights') requires the relation to the third person: Only therelation to the third,situatedinthebackgroundoftherelationto the you,gives us a basis for the institutional mediation reauired bv the constitution of a real subiect of rights - in other words, of a citizen. This double necessity - that of the mediation by otherness in general and that of the distinction between the other as a 'you' and the other as a third party - can be established on the plane of fundamental anthropology to which we appealed in order to elaborate the notion of capable Thus it is i n its relationship with 'the institutional other' that the Self appears as a legal person. Institutional otherness contributes to the construction of legal personality, and legal personality, i n turn, preserves the relationship between 'what is good' and 'what is just'. The good is prevented from being cut off from the legal; a purely procedural foundation for justice is forestalled as the teleological roots of justice are secured. The political order encompasses all other institutions of society. Citizenship as conceived here -the subject of law - is thus (re)constituted by the social bond by which the subject has rights but also 'the intrinsic obligation to participate in the burdens related to perfecting the social bond'.68 Citizenship -being a subject of law as justice - is the mode of belonging to the political body. The citizen issues from the institutional mediation of the political body. Social institutions, and the political institution i n particular, are 'orders of recognition'. The relationship of the subject with his fellow citizens is the constitution and recognition of the capable subject as the ethico-juridical subject. The social bond instituted by contracts, by agreements of every sort, which give a juridical structure to the giving of one's word as an exchange, is intercalated within the structure of trust. The principle that agreements should be kept constitutes a rule of recognition that surpasses the face-to-face relation of the promise made between two people. This rule encompasses anyone who lives under the same laws, and, if we invoke international or humanitarian law, humanity as a whole. The other is no longer 'you', but the third party designated in a noteworthy way by the pronoun 'everyone' [chacun],an impersonal but not anonymous pr~noun.~g
66. 67.
68. 69.
leads to impasses in practice'. 'Morality is held to constitute only a limited, although legitimate and even indispensable, actualization of the ethical aim, and ethics in this sense would then encompass morality.' Ricoeur, supra note 5, at I 70. Ricoeur, supranote 5,at 2 3 9 (emphasis in original). Ricoeur, supranote 8,at 5. Ricoeur, supra note 5, at 181. Ricoeur, supra note 8, at 7-8.
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As Ricoeur indicates here with his reference to international law, we also live under rules common to us as members of humanity's universal society. Our responsibility may decrease with the distance between ourselves and other people-since it is based on our ability to act -but it does not disappear. It is in this relation to 'each' that justice must be done. The subject of justice conjoins the political and the juridical. just political institutions thus provide the required 'institutional mediation' for the subject to exist as a legal person, national and international. As members of humanity who constitute their ethical-moral personal identity we have rights and responsibilities. These rights have no source in a social contract, but are 'rights of humanityin the precise sense of this term - that is, as rights attached to human beings as human beings and not as members of some political community conceived of as the source of positive rights'?' Rights and responsibilities require institutional structures. Without justinstitutions, 'individuals are only the initial drafts of human persons': Their belonging to a political body is necessary to their flourishing as human beings, and in this sense, this mediation cannot be revoked. On the contrary, the citizens who issue from this institutional mediation can only wish that every human being should, like them, enjoy such politicalmediation,whichwhenaddedto the necessa yconditions stemming from a philosophical anthropology becomes a sufficient condition for the transition from the capable human being to the real citizen.''
From this phenomenological trajectory, the subject of rights - or legal subjectivity emerges here as 'citizenship'. The definition of the legal person as citizen makes it clear how much the question of justice and the question of politics are intertwined. The question of politics entails the question of the organizing structures of society and its political and legal institutions, which have to be just. Elsewhere, I point out more extensively how Ricoeur is indebted to Hannah Arendt's republican conception of individual freedom (i.e. freedom as political participation) for his concept ofcitizenship and the Aristotelian idea of man andpolitics.7' As Klabbers has shown, plurality is at the core of Arendt's political philosophy. Political participation is an existential condition of human life. The appearance of the Self is only possible in a life with others; it requires 'sheer human togetherness'. The human condition is both equality and diversity. Plurality is the basic condition of all sociopolitical life. Ricoeur continues Arendt's line of thought about citizenship or political identity as defining of man's humanity. The next step is to reconceive international legal personality as the legal identity of the individual which emerges in the relation of the ethical-moral self with others at a cosmopolitan scale. This transition from a capable subject to a legal subject happens at the impersonal level; the ethical-moral self is in a social or institutional relation with the Other. The transition to an international legal person then takes place in the subject's pursuit of happiness - the good life - at a cosmopolitan scale. 70. Ibid.,at 9 (emphasis in original). 71. Ibid., at 9-10 (emphasis inoriginal) 72. Nijman, supranote 1 3 , ch. 6.
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This may be through institutional mediation of the state or perhaps other global actors such as civil society organizations. It is the Self's ethical-moral identity which seeks to live a good life in relation to the distent Other and so desires just institutions, also at a global scale. Here, international law provides the required institutional mediation. Thus, while 'institutional otherness"3 is a prerequisite for legal personality, it is also - since the Self seeks to constitute itself ethically and politically at the impersonal level - constructed by the Self. In this dialectic process between the Self and otherness, aimed at happiness as the common good, just institutions are thus further developed. From this phenomenological perspective,individuals are primary and original international legal persons just like collectivities or historical communities such as nations or (indigenous) peoples. Before continuing this line of thought on the individual human subject in the final section below, I will first briefly address the collective Self, such as the historical community organized into the state.
5. THECOLLECTIVE SELF:THE IDENTITY OF COLLECTIVE AGENTS OF SOCIAL CHANGE The shift from the individual to the collectiveis a challenge in every discipline, from philosophy and sociopsychology to politics and law. Ricoeur's phenomenological approach enables this shift by a change of focus: from the individual form of human capacities to the social form of human capacities. As such, the anthropological basis is the same: whether exercised individually or in common, man's humanity is defined by the power to act, by agency. Ricoeur uses the term 'power-in-common' for the social form of the capacity of an agent to constitute itself as the author of an action. It is the 'capacity of the members of a historical community to exercise in an indivisible manner their desire to live together', which he carefully distinguishes 'from the relation of domination in which political violence resides'.74 Historical communities are, for example, nations, peoples, minorities, and indigenous peoples. The phenomenology of the collective Self as a capable and responsible subject, and eventually as a legal subject, develops in a way largely similar to that of individual subjectivity. In the same way as the individual Self, the collective Self attests to its capacities, and like the individual Self, the collective Self constitutes its own identity. Ricoeur points at the way in which the same four questions of 'who' facilitate the appearance of the collective agent: the collective Self attests to its capacities by answering these questions; it designates itself as author of an action or of the story of its (national) history. Indeed, in response to the question 'who takes responsibility for these actions and accepts moral imputation? at the social level, the collective Self attests to its power to act and to its (capacity for) accountability and responsibility for its actions. In this way, it identifies itself (in 73. 74.
See supra, text at note 64. Ricoeur, supra note 5 , at 2 2 0
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the world), recognizes its responsibilities, and attests to being a capable subject. A social agent's recognition of its agency constitutes 'a cultural constant'; it gives permanence to its capacity for social change, that is, to introduce changes in the world through action. What is true for the individual human subject is true for the collective subject: narrative identity is not ethically neutral, it carries the seeds of the ethical-moral identity of the collective. Likewise, the capacity to take responsibility is part of the ethical-moral identity of the collective Self. In doing so (e.g. historical andlor political) communities identify themselves as social agents and recognize their narrative as well as ethical-moral identity. The narrative component of collective identity is indeed important to social life, both nationally and internationally, because it accommodates the dialectic process of permanence and change in the community's identity and facilitates the manifestation of self-constancy. The narrative self of national history continues to develop as the (historical andlor political) community continues to recount and evaluate its history, traditions, and national myths. This offers a conception of, for example, the political community called state as an alternative to the formal legal definition. The narrative collective identity (like personal identity) recognizes the dialectic social reality of the community and as such reconciles identity and otherness. This is not altered by the fact that the mode of recognition of social capacities may be different in the sense that it is an even more public affair. The collective self's primary means of self-constitution is through the narrative process of public appearance (public representation and participation) and submission to peer and public scrutiny, followed by either recognition or misrecognition. The self-identification and self-recognition of collective agents occurs when these agents participate by narration in public debates, nationally as well as internationally,but also when they interact by other means, for example, in the case of states, in the negative situation of diplomacy having failed andinteraction becomingmilitary. The ethical-moral identity of social agents develops similarly to the ethicalmoral stage of personalidentity through two dialectical processes, (i) of selfhood/ipse and samenesslidem; and (ii) of the Self and others (between ipselselfhood and otherness). The first dialectic finds expression in self-recognition and the second in the desire to be recognized. At the global level, peoples seek recognition in legal terms when they claim their right to self-determination or claim statehood. Through the dialogue and interaction with others, the collective Self seeks recognition and does so through argumentation. Social agents submit their actions to public evaluation and approval and, in doing so, they argue for and justify their actions in ethical, moral, and juridical terms. In other words, through participation and interaction, the collective self attests to its capacities and develops its narrative identity further, into an ethical-moral identity, by evaluating its actions and justifying them. Argumentation is then an activity through which the social agent also continuously reconstructs itself and testifies to the agent's ethical collective identity. Being subjected to ethical-juridical evaluation, whether by participation in a national debate or at an international forum, the social agent will argue in dialogue with other social agents that its actions are good and permitted. Here, too, narrative identity
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allows for change. Historical events may be disapproved of in hindsight perhaps only after decades, national history may recount it differently and gradually the narrative identity of the historical community changes and adapts (and moral blindness may be corrected). Collective narrative identity has immutable traits (sameness) as well as mutable t ~ a i t swhich separate the identity of the collective Self from this sameness of character.'S On the other hand, collective narrative identity may also be an obstacle in conflict resolution, when changing positions is prevented because sameness dominates in the dialectic of the collective Self and suffocates otherness, that is selfhoodlipse. In such situations, openness to plurality may fail to develop. The state's community is exemplary: This notion of narrative identity is of the greatest importance in inquiry into the identity of peoples and nations, for it bears the same dramatic and narrative character we all too often confuse with the identity of asubstanceor astructure.At the level of the history of different peoples, as that of individuals, the contingency of turning points in the stow contributes to the overall sianificanceof the stow that is told as well as of the protagonists. To recognize this is to free ourselves of a prejudice concerning the identity claimed by different peoples under the heading of arrogance,fear, or hate.T6
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Hence to free national history and collective identities from prejudice and hate that may be part of their self-constitution in relation to the Other, Ricoeur suggests a therapy of sorts for collective entities - an idea which is not that foreign to states in a process of leaving the racist or totalitarian element in their identity behind, and of dealing with collective traumas and collectively felt aggression. 'We may thus consider nations, peoples, classes, communities of every sort as institutions that recognize themselves as well as others through narrative identity.'77 These historical communities have structures which facilitate living together beyond the interpersonal sphere; these structures of living together are the institutions which are subjects of justice when Ricoeur defines the institution as 'the point Being asubject of justice attests or testifies to the power to of application of ju~ticel.7~ act (in common) because justice is ateleologicalnotion;itextents the goal ofthe good life to impersonal relations (to institutions) and so the field of action is extended. Not all collective phenomena can be qualified as collective agents of social change, but the state, or rather its historical-political community, is indeed such a collective, which constitutes and develops itself as a subject narratively and institutionally in relation to others. The state is the organization of the historical community, and due to this organization it is capable of making decisions and of taking action. At a global level, the state is constituted in relation to other states and increasingly to other (non-state) actors. The development and realization of its collective identity requires others who participate in a state's narrative and who count on a state; ethico-juridical responsibility to others is constitutive of self-constancy of the state. Internally, the community realizes its desire to live together though purposeful 75.
Ibid,, at 123. 76. Ricoeur, supranote 8.at 3-4. 77. Ibid., at 7. 78. Ricoeur, supra note 5. at 194.
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social and politicalinstitutions. The state, then, is the political institution that unites people as citizens and enables them to preserve the community and aim concertedly for the good. The state, then, is the embodiment of the citizens' power-in-common, power which unites individual human capacities into a collective form. Conceived of as a collective Self that constitutes itself and recognizes its agency, the state is the collective representation which mediates symbolically the (re)institution of the social bond that the collective produces through social practices. Judicial practices are such social practices; they may be identifiedwith the juridical structure of society, that is, the structure and organization aimed at the distribution of goods as well as rights and obligations among citizens. These juridical practices institutionalize justice as one of society's communicational activities and constitute the state as institution and legal order. Ricoeur's focus is on how we 'ascribe to social practices, as components of action in common, the sphere of those representations which human beings make of themselves and their place in society'.79 These collective representations enable us to perceive the collective phenomena or social practices to which they refer: This connection between representationsand social practices is expressed through the role of symbolic mediation these representations exercise when there is something specific at stake with regard to the social practices,namely, instituting the social bond and the modes of identity attached to it. Representations are not therefore abstract ideas floating in some autonomous space, but, as said, symbolic mediation contributing to the instituting of the social bond. What they symbolize is identities that confer a particular configurationon these social bonds as they are formed.80 The state as the (purposeful) organization of a political community is indeed such a representation. This role of the state would be incomprehensible without the 'symbolic mediation' of a signifying system such as democracy or (domestic and international) law and, at the international level, the standardized game of diplomacy. International law and diplomacy are shared symbolic mediators which serve the state and the international community, through which the state lives an international life and can act in the world. But domestically also the legal system is a mediating symbolic context which facilitates the interpretation of state actions and as such structures our evaluation and judgement of these actions. The legal system is indeed essential to the instituting of the social bond and the identity of the state that arises from it. The constitution of the self has thus expanded on to the next scale.Both on a national and international scale, situations of uncertainty invite the state's community as well as other social agents to shape their identity by acting and taking responsibility collectively. Collective or social (capacity to recognize) responsibility demonstrates a social agent's power to act. It is also part of the constitution of the agent's ethico-juridical identity. And this is a central concept in the shift, at the political level, from the individual to the collective. Ricoeur conceptualizes collective responsibility in relation 79. Ricoeur, supra note 45. at 135. 80. Ibid, at 135.
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to individual freedom and social justice. It is the responsibility of the community as a whole to 'transform abstract [rights and] freedoms into real opportunities'. Ricoeur follows Isaiah Berlin in the distinction between freedom as a positive and as a negative notion. Positive liberty is about what a person can accomplish, in other words is about 'capabilities'. It is about 'the capacity of a person to lead the life he or she chooses'?' Individual liberty understood as a life choice then becomes a social responsibility - collectively we have to guarantee that the individual members of society have the basic capacities actually to build a life as they judge it to be good. If we reason analogously to the self-constitution of personal identity: society as a collective Self constitutes itself ethically and morally by mediating this desire through just institutions. The concerted desire to live in just institutions constructs an organization of the collective Selfwith power-in-common, hence a social agent which recognizes its responsibility, constitutes its ethico-juridical identity, and mediates the dialectic of society between sameness and otherness. Ricoeur employs the notion used by Amartya Sen of 'rights to certain capabilitie~'.~~ Sen reconciles this idea with a Rawlsian concept of justice, that everyone has the right to similar individual liberty. In other words, justice demands that everyone has 'a right to capacities' in order for every person to be able to choose their life. Within such a theory of justice, individual liberty may be an individual objective but its pursuit is to be conceived of as a collective endeavour -it is a social re~ponsibility.~3 Justice conceived of in terms of equality - we all have the right to certain capacities which enable us to choose our lives - is then a distributive notion of justice which demands our national as well as international institutions to organize our collective desire to life together in such a way as to accommodate the pursuit of justice - to fight exclusion (rightlessness, poverty, etc.) and enlarge the scale of mutual recognition (all the way to the global level). In other words, as the (self-)recognition of the (social) agent involves the evaluation of the agent's actions in ethical and moral terms, it presupposes standards of justice; a theory of justice centred on this idea of 'rights to certain capacities' shows the extent to which political, moral, and juridical dimensions are intertwined. The minimal capacity to act - that is, the capacity to exist - and the real capacity to choose one's actions 'tur[n] out to be inseparable from those liberties ensured by political and juridical structures'?4 Without these structures, freedoms and rights are vain. Just institutions shape our ethical life with others (we are born in an existing context of institutions yet we also shape them during our lives as we constitute ourselves in relation to others through institutional mediation), the virtue of justice demands our recognition of others, that is, of their otherness as well as their right
81. Ibid., at 143. 8 2 . Ibid., at 144.It is within this 'evaluative' framework that the actual exercise of the freedom to choose calls on collective responsibility. It is up to such collective responsibility to ensure individual liberty in both its positive and negative forms, as well as the integrity ofreciprocal relations between these two formsof liberty. Ibid, at 144. 83. Ibid.. at 145. 84. Ibid., at 146.
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to capacities to choose a different life. The human condition of plurality is substantiated by the idea that every person has the right to capacities which enable her or him to choose her or his life - and since life is always life with others, this must be institutionally mediated by just social systems which organize collective responsibility. The recognition of collective responsibility is part of a process of collective self-constitution. The collective, like the individual, is always in a process of self-constitution, which includes a dialectic process between selfhood and otherness. The (hi)story of the development of historical-political communities indeed goes to show how the Self is constituted in relation with the other or the foreign, either within the Self or outside in the world. The Self develops self-respect and self-esteem and selfconfidence if these relations conform to the standards of justice, which include recognition of otherness. The collective Self may evaluate itself in ethical and moral terms in response to the Other, yet this inter-subjective process is not the only way in which ethical-moral identity is constituted. The Self may also attest to its collective identity in the relation with itself, in the encounter with the Self as another. Such can be seen, for example, in anational public debate over the nation's history and perhaps (international) crimes involved. Another example of otherness in relation to identity can be found in the position of the Kurds, who as a historical community have their own collective identity internationally recognized as such (in northern Iraq), yet whose collective identity within Turkey is unrecognized. Its otherness has not yet been adopted into the dialogical structure of the political community organized as the Turkish state. The ipse identity of the Turkish political community is failing in testing its attitude, its norms, and its normative model of behaviour, and so fails in adjusting its national identity and in establishing itself as the international (ethical and legal) subject that recognizes otherness and internalizes international legal norms which demandthe recognition of (internal) self-determination of collective selves such as the historical communities of peoples. The example shows how at the collective level the two dialectics of identity operate (or in casu fail to operate purposefully towards justice) as wel1:internally the dialectic of sameness and selfhood/ipseity (the identity that absorbs and accommodates new initiatives, developments, and normative models and ideals) and, externally, the dialectic of the Self and the other-thanSelf. Otherness and selfhood may be in dialogue and perhaps eventually reconciled, but history shows how often exclusion and misrecognition occurs. The recognition of otherness, both outside and within oneself, facilitates ethical and moral - legal conduct. This involves also a third relation with otherness: the otherness of conscience, our other voice within. Our conscience commands us to act well and justly, to take responsibility; it attests to the Self and to the dialectic relationship of Self as idemidentity and self as ipse-identity.The collective identity is marked by a similar narrative and ethical constitutive process in which the otherness of conscience may be represented and operate by stimulating the development of the ipseity or the ethical - moral collective self. Political communities organized as states (re)constitute their identity continuously by the dialectic of universality and plurality, sameness
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and alterity. Ultimately, through these dialectic processes of Self with othernes~,~s mutual recognition emerges. At this point it should be underscored that the constitution of the collective Self may also be characterized by the failure to take responsibility or by turning a deaf ear to the demands of justice. This goes, of course, to the heart of postmodernist critique: collective entities such as states construct themselves not merely in relation to but actually against one another, or against the Other within the Self. With regard to the state as thecollective Self of international law, the dialectic movement between sameness and otherness may go dramatically wrong (for a long time). Today, the European Union demands that Turkey face its trauma of the Armenian genocide and revisit its narrative identity in order to evaluate its actions of the past and thus confirm its ethics and morality for the future. South Africa has institutionalized the reconstitution of its national identity in the Truth and Reconciliation Commission. But also at global level, foreign relations are marked by self-constitution notably against otherness. World affairs after 911I are particularly illustrative. International life is predominantly characterized by opposition and marked by a tendency of the collective identity to construct itself in opposition to otherness (Dutch identity after the First and Second World Wars, European identity versus US identity, or Western identity versus Islamic identity are cases in point). It is the purpose of just international law and institutions to mediate relations between states as well as other organized communities (peoples, minorities, indigenous groups) represented on the international plane so as to serve recognition, reconciliation, co-operation,and social justice. The self-constitutionofpolitical communities organized as states involves other political and historical communities. These relations take place in the context of international institutions and international law. Together with the individual members who compose the community that constitutes its collectiveidentity in relation with others, the collective Self has the same ethico-moral desire -to live together in just institutions. At the final stage of its self-constitution, international legal personality emerges as the (wounded) ethical-moral identity of the collective Self expressed on a global scale, that is, in relation to global others. As such, international legal personality is again the final stage in the development of identity: legal subjectivity is firmly grounded on the power to act and the desire to live well together. However, the (international) reality of collectivities which constitute themselves in opposition to each other may suggest that international law and institutions frequently fail in their task. This is a reality we have to face in order to correct the shortcomings of international law in this respect. Ricoeur serves this self-scrutiny by addressing the Hobbesian view on international law and society. He offers an alternative which can liberate us from the perception that collectivities such as states necessarily act amorally and out of egoism for the reason that this is the way in which they are constituted. Currently the international legal order is construed as a
85.
The other as the locus of God's self-revelation.
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predominantly voluntarist order. It is characterized by power politics and frequently ignores the rights as subjects of justice of other collectivities such as indigenous peoples or minorities, since these represent the elements of otherness within the sovereign state. International law should not ignore this issue, or rather the international community should not prevent international law from dealing with these issues; Ricoeur's hermeneutics of the individual and collective Self describes and explains why, and suggests the direction for international law and international institutions to take: organize the international community as an order of mutual recognition, facilitating the recognition of otherness and international co-operation in just institutions and in accordance with international law as justice. In other words, the Hobbesian state of anarchy is guaranteed as long as we do not reconceive international law as a social system mediating between the Self and the Other seeking mutual recognition. To be able to move from anarchy to an order of recognition and justice, Ricoeur points us to Hegel and to the struggle for recognition elaborated by him?6 Because self-recognition and seeking recognition of others is part of the construction of the Self (individual as well as collective), it cannot be ignored in this attempt to find seeds for a new grounding of international legal personality. As mentioned before, I draw on Ricoeur's Hegelian-inspired thinking for its powerful and convincing thought that men living in a natural state will secure their lives, yet not without seeking recognition, since man cannot live with what he terms as contempt. This negative feeling is fought against - the struggle for recognition takes place, on the level of emotion, as well as on the juridical and social level. It is the dialectic of contempt or misrecognition and recognition which leads to Anerkennung in the state of nature." As such, the model of the state of nature is changed and enriched with the idea of the possibility of mutual recognition between Self and otherness as equal partners capable of respect and co-operation. This model of the state of nature as an order of recognition may serve as a descriptive and prescriptive example for the international order.
6. TOWARDS A NEW THEORY OF INTERNATIONAL PERSONALITY AND INTERNATIONAL LAW AS JUSTICE In the preceding paragraphs, (international) legal personality appeared as an aspect of the phenomenology of the subject.The Self constitutes itself in relation to itself, to the immediate Other, and ultimately to the distant Other. The four stages of identity take shape in these three types of relations. The international legal personality of both the individual and collective Self is an aspect of the Self's ethical-moral identity, which arises in relation to the distant (individual or collective) Other at a cosmopolitan scale (see the table). 86. Masterlslave struggle as model for dialectic relation of Self and Otherness: from asymmetry between master and slave to interdependency and the symmetry of mutual dependency and recognition. 87. 'With contempt, the incorporation of the negative into the winning of recognition is complete.' Ricoeur. supranote 45, at 2 5 9 .
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in relation to
Self-constitution
Self as another
Distant other or institutional Near other otherness
Ethical-moral identity of the Self Personal Friendship. Justice: in living to fulfil the aim of 'the fulfilment. a. national scale: good life'. (Selfhood in dialectic subject of justice relation with otherness, actions or legal are judged in terms of the good personality; (ethical) and obligatory or duties b. at cosmopolitan (moral-juridical). By judging scale: one's actions as good and international permitted or obligatory in legal relation to otherness, selfpersonality. respect and self-esteemarise.) Narrative identity of the Self. Identity of the Self as acting subject. Identity of the Self as speaking subject.
International legal personality as reconceptualized here refers to the identity of the Self in relation to otherness institutionally mediated by law (as justice). As such, international legal personality emerges with law as an order of recognition. In the introduction I mentioned that the deep structure of classic (voluntarist) international law is Hobbesian, based on the Hobbesian understanding of the state of nature that has been the model for thinking about the international society and international law. International legal personality first emerged in the work of Gottfried Wilhelm Leibniz, as a concept within his universal jurisprudence with which he responded to Hobbes. Leibniz rejects Hobbes's (as well as Pufendorfs) position that justice is that which is done by a supreme power, as this implies that justice is based on will and power.88According to Leibniz, justice is love as charity - that is, at the impersonal level living well means to be focused on God, or on perfection, or on the common good. It is inherent in man's rational and social nature to be directed towards this common good.
88. See, for more on Hobbes's concept of person and Leibniz's issues with Hobbes's and Pufendorf's views, Nijman, supranote13, ch. 2.
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Leibniz used the concept of international legal personality to bring all (old as well as new) powers under the rule of law as justice, that is, the law of nations and nature. He conceived of international legal personality as the concept to legitimize the
participation of (relatively) sovereign powers in international life, but not without at the same time establishing their responsibility to conform to the justice-based rules of international law. In Leibniz's universal jurisprudence, international legal persons were thus assigned the legal duty or responsibility of furthering universal justice. International legal personality indicated personal capacity: of the sovereign power to act, as well as the responsibility to advance justice. Law as justice is what we all desire and aim for by human nature, or, in Ricoeur's words, law as justice is what we construct as we construct ourselves in a dialectic relation with otherness out of a (natural) desire to live together. As such, the realignment of the theoretical perspective proposed here with the natural-law tradition cannot be denied. The origins of international legal personality show how important the first premises are for every reasoning we undertake. Leibniz's and Hobbes's different visions of man and the state of nature lead them in the opposing directions of universal justice and universal anarchy. Hobbes could never have handed us the concept of international legal personality since he denied the existence of international law; after all, the state of nature -which is life without a government, just like international society - is life in anarchy. Leibniz was not the only one to take issue with Hobbes; so did Hegel, many years later. Hegel responds to Hobbes's image of the natural state of war with the struggle for recognition. By introducing the struggle for recognition Hegel brought back the ethical-moral dimension to the state of nature and to the origins, and potential, of (political) society. International legal personality reconceptualized on the basis of the hermeneutics of the Self relates to a conception of international society and international law which allows for a representation of morality and ethics. It is the responsibility of (world) citizens and their institutions to actualize justice on a cosmopolitan scale. The contours of a reconceptualization of international legal personality proposed here also offer a framework for the description of the identity of collective entities in international law and the position on the international stage claimed by these entities. The state as the political institution of a community is of particular concern in this respect. The reconstruction of the international subject outlined in this paper allows for a conception of the international (largely interstate) order in which the international legal personality of the state ensures the link between justice and law. We thus need to leave behind the Hobbesian model for the international society the struggle for survival - and follow Ricoeur when he draws on Hegel's alternative: the struggle for recognition. This enables us to shift from an 'order of fear and conflict' to an 'order of respect and mutual re~ognition'.~9 In brief, Hegel's argument is that Hobbes was wrong and morality is present in a 'state of nature'. Ricoeur explains,'What is at stake is knowing whether an originarily moral motive underlies life together, one that Hegel will identify with the desire to
89.
See Carty, supra note I z
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be recognized. Thus it is as a theory of misrecognition that the Hobbesian theory of the state of nature [is]revisited.'gO According to Hobbes, three passions characterize life in a state of nature or a 'war of all against all': competition, distrust, and vanity or glory. In other words, in this conception of human nature, moral conduct is not coming from within but is imposed from outside. Man acts in order to gain either profit, safety, or reputation or fame, but never out of compassion or caritas. The situation that arises is one of mutual misrecognition. For Hobbes, the right of nature is the right to use one's power to preserve oneself. In alaw of nature fully based on the principle of self-preservation morality or respect for the other is absent. Only the fear of death inclines man to peace. The fear of a violent death incites the conclusion of a political contract. As Ricoeur aptly points out, the dimension of alterity is absent 'in the sequence of concepts culminating in the idea of a covenantJ.9' In the passage from the natural to the fictitious person - by means of the chain of transfer, contract, and covenant an alterity that co-operates in the ipseity (of the fictitious person) is lacking. How should we come from this state of 'war' to a state of mutual recognition, a state of 'pea~e'?9~ Ricoeur searches for a moral exigencythat is as powerful and'originary' a drive 'as the fear of violent death and the rational calculation that this opposes to vanity'.93 He finds it with Hegel: the struggle for recognition is a similarly fundamental drive. of man and as such could be the foundation of political order. Struggle for recognition is a process which (i) 'ensures the link between selfreflection and orientation toward the other'; (ii) 'proceeds from the negative toward the positive pole, from disregard toward consideration, from injustice [i.e.exclusion] to respect [i.e.mutual recognition]'; and (iii) is systemized by the hierarchization and institutionalization of recognition.94 If the desire for recognition is indeed the foundation of a political theory, indignation is the primary, originary motive in the same way as the fear of violent death in Hobbes's theory. Foundation of political order or civitas in Hegelian theory is the experience of indignation about injustice - that is, exclusion or misrecognition and the ensuing demand for recognition of the self. This indignation has a moral dimension or, rather, it is a moral phenomenon. In other words, Hegel is out to establish that man is capable of more than actions arising from rivalry, distrust, and vanity, and that man is more sacred or spiritual than Hobbes portrays him to be. It is Hegel's aim to incorporate morality in this transfer from the state of nature to the state, to find a moral reason that explains in this thought experiment why men move beyond war. Thus Hobbes's struggle for survival is replaced by the Hegelian struggle for reciprocal recognition. Hegel preserves the 'idea of a living unity between individual and universal freedom', beyond 'the primacy of the polis over the isolated individual'. He 'assign[s]to consciousness the capacityto generate the successivestages of Ricoeur, supra note 45, at 162-3. Ibid, at 170. Ibid., at 164. 93. Ibid, at 1 7 1 . 94. Ibid., at I 71-2. 90.
91. 92.
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self-differentiationthat punctuate the struggle for recognition'.95 The substitution of the struggle for self-preservation and survival with the struggle for recognition and 'the inclusion of the struggle for survival in the dialectic between self-assertion
and intersubjectivity' determine Hegel's theory of natural law. Like the individual Self, the collective Self - such as a state or a people - desires to be recognized. With this desire for recognition as the foundation of his political philosophy, Hegel ascribes to indignation the same importance and function as Hobbes does to the fear of death. This is the (philosophical) value of the struggle for recognition: it preserves 'the correlation between a relation to oneself and a relation to the other'.g6 Contrary to the fear of a violent death, which produces violent behaviour to survive in the state of war, the desire to be recognized is a motive which produces moral conduct: recognition and respect can only be received if they are given. On Hegel's model a normative theory of political society can be based. Once mutual recognition arises from the originally dissymmetric relations, community will emerge. As such, it offers a tool for a better understanding of the Self. Hegel enables us to put 'the resources of the negative [the refusal of recognition e.g. in crime, humiliation, the emergence of indignation] at the service of a process of the actual realization of consciousness or of Spirit'.g7 The negative feelings become the source of normativity: experiences of injustice generate norms which arrange for correction of misrecognition. Justice is served by uplifting the injured entity to a state of 'being recognized', for example by compensation. Crime in Hegel's perspective is misrecognition of property or personality. Seeking justice is thus an attempt to end misrecognition and succeed in the struggle for recognition. On a global scale, the struggle for recognition is visible in the dynamic of humanity's cultural plurality as well as multiculturalism within domestic societies. Ricoeur cites with approval Taylor's observation that 'Our identity is partially shaped by recognition or its absence, often by the misrecognition of others.' Misrecognition harms the individual human beings who are the members of these collectivities, since they internalize an auto-image in which they deprive themselves of a part of themselves. As self-recognition cannot arise without mutual recognition,partial (or defective) recognition by others harms human dignity and precludes the complete identity comprising otherness. The demand for recognition of one's dignity and individual identity requires - hence assumes - the Other as well as a dialogical structure. Ricoeur: 'It is collectively, one could say, that we demand an individualizing re~ognition.'9~ Therefore we should shift away from a politics of universal equality (with all its blind spots for difference and plurality) to what Charles Taylor has called a 'politics of recognition'. This shift then will be due to 'a change in the definition of the meaning of equality implied by the very idea of dignity'. Ricoeur elaborates:
95. Ibid,,at 175. 96. Ibid. 97. Ibid., at 216. 98. Ibid., at 214.
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It isequalityitselfthatcallsfor adifferentialtreatment,rightup to theinstitutionallevel of rules and procedures for 'affirmative action'. Abstract universalism is reproached for having remained 'blind to differences'in the name of liberal neutrality. In this way, two policies,equally founded on the notion of equal respect, enter into conflict starting from the same central concept, that of dignity,with its egalitarian implications.99 Ricoeur reads Taylor in an attempt to find an alternative to classical liberalism and its global version of abstract universalism - and its negation of difference, that is difference within the Selves that act on the global plane, as well as differences between or among the collective Selves. Our identity, as individuals and groups, is partly shaped - or misshaped - by the recognition or misrecognition we receive from others. Taylor rightly observes, 'Due recognition is not just a courtesy we owe people. It is a vital human need.' The recognition of identity is not the same as the recognition of dignity. This is a crucial distinction with regard to the reconceptualization of international legal personality. Rather than using personality as a concept that recognizes dignity, international legal personality (and its recognition) are here part ofthe self-constitution ofidentity The relation between selfhood and otherness within each Self and between Self and Others, individual or collective, exists at all levels up to the international society of states. However, with each step or transposition to a bigger scale, complexity rises and the risk of conflicts over recognition and legitimacy of ethnic and cultural differences may increase. Nonetheless, a liberal society 'singles itself out as such by the way in which it treats minorities, including those who do not share public definitions of the good, and above all by the rights it accords to all of its members'.100 Minorities as otherness within may be engaged in a struggle for recognition from which mutual recognition emerges and respect comes to substitute contempt. The new theory of international legal personality outlined in this paper allows for a diversity of social agents to constitute their ethical-juridical identity, including international legal personality, since they aim for living well on a cosmopolitan scale. International law is one of the institutions which mediates this desire for living together with all of humanity recognizing both our universality and plurality. In this view, not only historical-political communities such as states, but also indigenous peoples and minorities, are conceived as international legal persons involved in the struggle for recognition mediated by international law and international institutions. As international legal personality is defined as part of the ethical-moral identity of the subject, the rights and responsibilities that come with international legal personality vary with the capacities of the different subjects. Yet since international legal personality is grounded in the desire to live together in just institutions, the international law system thus conceived develops into an order of respect and mutual recognition that structures interaction and co-operation at the global level. How would such international law and such international order be possible? It is possibleonce we understandthat themodel reflects potentiality (capacities) and that it is the responsibility of (world) citizens as well as of states and other institutions gg. Ibid.
loo. Taylor as cited by Ricoeur, in Ricoeur, supra note 45, at 216.
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to actualize justice, to recognize rights and duties. The current international order is moulded on a model with people who have forgotten the will to live together, nationally as well as internationally. Historical-political communities do not spring
from a fiction called 'social contract' but from 'the will to live together which they have forgotten'; this will should be recollected; the foundation of historic-political community is 'the desire to live well with andfor others in just institutions'.Iol If we recollect this desire and recognize that it pre-dates the contractual society,or rather accept that it belongs to the passions of the state of nature -as Grotius and Leibniz have already pointed out - a just international order is possible. This entails the recognition that justice pre-dates law, that justice as rules and norms is the institutionalization of justice belonging to the ethical with equality at its core.Io2The Self lives in a dialectic relation with Other(nes)s, individually as well as collectively.This means that it seeks recognition and offers recognition in return. Such is the struggle for recognition which pre-dates contracts or laws, and which is the core of the ethical-moral dimension of the status naturalis. The state of nature may be a struggle, but it is not a war. It is not merely determined by the fear of death, but also by the desire to be recognized. From this Hegelian-inspired line of thought, the right concept for the international (legal) order emerges, in which morality is inherent and not imposed from outside after the conclusion of a social contract.
The subject of law (as justice) thus does not find its source in a social contract, rather it emerges from the relation of the Selfwith Other(nes)s.'Aimingat the goodlife with and for others in just institutions' means in relation to distant Others the pursuit of a just political-juridical order which mediates the mutual recognition of human pluraIity and universal humanity. To recognize each other as capable and suffering human beings and to act as responsible citizens is to advance and defendinstitutions which make (social) justice effective - domestically but also internationally. Indeed, we are also world citizens, who may pursue the actualization of (social) justice on a cosmopolitan scale. This aim can be pursued through the state as well as through, for example, global civil society organizations which may act as mediators for the subject's efforts. International legal personality as an aspect of our ethical-juridical identity, in other words, is not merely having rights; it also includes a responsibility to fight against exclusion and misrecognition on the global scale. Part of this responsibility is also to eliminate those obstacles within our historical-political community1°3 which prevent the political institution (the state) from co-operating effectively at the international level. International legal personality, in short, concerns the life in global institutions.
lor. Ricoeur, supra note 5,at 2 3 9 (emphasis in original). Ibid., at 201 et seq. 103. Ricoeur defines 'institution' as 'the structure of living together as this belongs to a historical community -
102.
people, nation, region, andso forth - astructure irreducible to interpersonal relations and yet bound up with these [relationsl' and which facilitates justice. Ricoeur, supranote 5, at 194 et seq. (emphasis in original).
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Indeed, the historical-political community called state - established by the bond of common mores rather than rules - also constructs its collective identity inrelation to institutional otherness at an international scale. International legal personality is the ethical-juridical identity of the state as it arises in international relations - how it operates and co-operates according to international standards of justice. We have already seen that citizens of these states have their own responsibility as national and international legal persons, but the state conceived of as a collective self has a separate collective ethical-juridical identity and thus international legal personality too. As a subject of international law (as justice), the state has aresponsibility to aim for just institutions and to eliminate all factors which exclude and misrecognize the other members of the community. Plurality also belongs to the international political sphere. International law is the institutional mediation of (social)justice on a global scale. International legal personality as reconceived here no longer refers to (absolute) sovereignty, but first and foremost to responsibility. Justice is addressed to both individual and collectivepersons, toindividuals as well as states.Thehuman capacity to take responsibility in relation to others and in relation to 'oneself as another' connects Sein and Sollen, it connects the potential for action to actual ethical-moral conduct. This new concept of (international) legal personality may serve as a timely juncture between the ethical and moral realm on the one hand and the legal order on the other. Similarly to Hannah Arendt,1°4 Ricoeur understands citizenship, or the right to have rights, as a requirement of human existence. As man's humanity is defined by his capacity to act (agency) it is essential that he is recognized in his relation to the institutional Other at the impersonal level. Hence the legal and political order which emerge from, and facilitate the relations of, the Self with the distant or impersonal other, is (intrinsically) aimed at justice - that is, aimed at living the good life collectively also. The ethical-moral identity of the Self demonstrates how the Self relates to justice, or rather - following Aristotle and many after him -the Self is understood as the Self aiming for the good life. Law as justice is knowable to the Self; he submits his actions to the standard of justice when recounting and judging his life. Justice exists as the standard of responsibility for both the individual and the collective. The juridical identity of the collective Self institutionalized in the state is thus the ethical-moral identity of the state community as it arises in relation to others. Justice as the standard for the political and juridical organization of mankind contributes to our political and juridical imagination; it requires the concerted (ethical) action of individuals and collectives in accommodating and recognizing the challenge to humanity's identity and alterity. Taking Europe as an e~ample,'~5 104. See J. Klabbers, 'Possible Islands of Predictability: The Legal Thought of Hannah Arendt', in this issue. 105. See Ricoeur on the institutional future of Europe: '[Ilndeed,it would be a mistake to believe that transfers of sovereignty in support of a political entity whichisentirely unrealizedcan be successfulat the formal level of political and juridical institutions without the will to implement these transfers deriving its initiative from ocueri changes of attitude in the ethos of individuals, groups andpeoples'. P.r-R Europe', (1995) 11(5) Philosophy andSocial Criticism, at 3. Here, Ricoeur reflected on possible models for such new ethos and their institutional consequences. Without going into too much detail here, the translation ethos asa model to suit and support the further construction ofEurope to Ricoeurwoulddemand,forexample. that Europeanstudents learnat least twolivinglanguages,sincethis would contribute also to their (spiritual)
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the international community as a whole to develop its institutions such as to be able to confront global problems is self-evident. The institutional integration of identity and alterity is equally necessary at the global level. The first outline of a reconcep-
tualization of international legal personality and international law developed here proposes the incorporation of the deontological-teleological perspective within the international legal system. It also offers a better understanding of sovereignty -
that is, its originally ethical foundations. The imperative of a new ethos of mutual recognition to replace the ethos of self-preservation (which has dominated Europe for a long time and dominates the international arena most of the time) entails an opening of the mind - justice is concerned with the other - and a guidance for institutional (political and judicial) imagination. By rejecting Hobbes's pessimistic anthropology and adopting a slightly more optimistic or constructive anthropology, an ethos of mutual recognition is allowed to replace the ethos of self-preservation. For such a new (cosmop&tan) ethics to inform and inscribe international relations, the participation of the whole of humanity through different associations and institutions is required. Success is possible, insofar as the desire to be recognized - which underlies social life -is one of the originary passions of human beings. The quest for recognition is a moral motivation which is part of the (continuous) reconstitution of every individual and collective Self in relation to others. As such, it is constitutive of a social order of mutual recognition and respect. The (international) legal system contributes to the realization of the Self, as each recognizes the Other as a legitimate subject of (international) rights and respon~ibilities.'~~ To sum up, the reconceptualization of international legal personality sought here is both descriptive and prescriptive. (i) It adopts Ricoeur's hermeneutics of the Self as a valid answer to the deconstruction of the subject and - it being a constructive ability to translate between cultures, to their capacity to attend'to this process of transference to the mental universe of the other culture, having taken into account of its customs, fundamental beliefs and deepest convictions; in short, of the totality of its significant features'. The importance of worldwide education has only increased the necessity for members of humanity to be able to translate a foreign culture into linguistic. analytical, and emotional categories peculiar to one's own, and vice versa, which has become even more urgent. Also, the exchange of memories (as a model for communicating on events which mark natlonal hrstories) may fruitfully inform our reflection on international institutions as facilitators of exchange and dialogue, and, for example, on 'founding events' which may have been violent to others internally and externally. Politics of identity and recognition cannot be excluded from the international level. However, recounting (national) founding events differently may not do the required justice to victims - access to international human rights fora is required for those who suffered violations. Similarly, the Permanent Forum on Indigenous Issues within the UN system is an important institutional development in giving indigenous peoples representation on the international plane. However, it is still to be seen whether the General Assembly will indeed recognize the right to self-determinationof indigenous peoples as formulated in the Draft United Nations Declaration on the Rights of Indigenous Peoples as adopted by the Human Rights Council by its decision 712 of 2glune 2006. ~ r3 oft the ~ G l a r a t i o provides n that%digenous peoples have the right of self-determination. Bv virtue of that right they freely determine their political status and freely purs;e their economic, social and cultural development.;~oreover,~ r t4. stipulates that 'Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.' 106. See Carty, supra notell, at 313-14: 'the idea of responsibility, which expresses itself in indignation at the contrast between the equal formal distribution of rights and an unequal material distribution of goods, the humiliation felt where civil rights are denied, and the frustration felt at the absence of participation in the formation of the public will. Responsibility may pass through struggle, from humiliation and indignation into a capacity to express oneself in a rational and autonomous manner on moral questions. Therefore, responsibility covers both the assertion of the self and the recognition of the equal right of the other to contribute to the advance of rights and the law (Ricoeur 2004 [Parcoursede la Rcconnaissance],292-193)'.
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philosophical perspective of the subject -as a solid foundation for the reconceptualization of international legal personality. (ii) In this way, it means to provide a better model for describing and explaining current developments in international law which show that the classic conception of international law and international legal personality prevents us from capturing adequately the rise of non-state actors and their increased visibility and legitimacy in the eyes of international law. (iii) Besides explaining more adequately the quest for recognition and the changing position of collective entities, the reconceptualization of international legal personality as a part of the identity of the individual subject on a cosmopolitan scale allows for a fundamental change of perspective: the individual subject is an originary and primary international legal person. (iv) The contours of a new theory of international legal personality as formulated here accommodate change; such a theory may facilitate the variety of collective entities (such as (indigenous) peoples and minorities) now seeking recognition and claiming inclusion in the international law system. 'International legal personality' reconceptualized as a stage in the phenomenology of the subject may serve as an underpinning for such recognition and inclusion - which is timely, since it has been established that exclusion or misrecognition defeats a just international law. (v) Once reconceptualized as amode or stage of (personal as well as collective) identity, international legal personality revindicates law's inseparability from ethics, or international law as justice. In conclusion, we are dealing with an 'evaluative-descriptive term','07 which throughout its conceptual history has been a locus of change in the language of international law. The proposed reconceptualization of international legal personality seeks also the alteration of the moral identity of international law. It means to offer a conception which better describes the reality connected to the notion of the legal subject, and in addition it means, frankly, to influence legal (conceptual) developments. The traditional definition of international legal personality as 'a bearer of rights and duties under international law' on the one hand can still seem valid literally. Yet on the other hand its meaning has changed completely: read in isolation, Kelsen's description of legal personality as the point of attribution or imputation is correct; however, a defining conceptual change occurs as law is not defined by its ultimate Grundnom but by its rootedness in justice. International legal personality is no longer 'granted by' positivist international law; it is a stage of ethical-moral identity constituted in the dialectic relation of Self and Other(nes)s. It thus enriches the modernist conception into an anthropologically grounded and ethically rooted concept. But the anthropology on which (international) law and the (international) legal person rest, is an anthropology that recognizes the (individual and collective) Self as unstable and tainted by the human condition. Yet it also recognizes that the human subject is fully capable of recognition and of respect for the (internal and external) Other.Io8 107. Quentin Skinner:% is essentially by manipulating this set of terms that any society succeeds in establishing and altering its moral identity'. Quoted in Nijman, supra noter3, ch. I. text ton. 83. 108. 'So the dynamic of international legal argument and the normative development of international law are to be found in the embedded historical contexts of the individuals and communities they are both supposed to ground. On their own the legal arguments and norms cannot even be understood and must appear as an endlessly inconclusive circular and self-defeatinggame'. Carty, supranoteiz, at 315.
Part I1 The Empirical Approach: Selected Non-state Actors
THE I N D I V I D U A L A N D THE INTERNATIONAL LEGAL SYSTEM Robert McCorquodale SUMMARY This chapter explores the role of the individual in the international legal system today. It considers the extent to which the individual, including groups of individuals, is an independent participant in this system. This participation is explored by reference to the direct rights and responsibilitiesof individuals under the international legal system, their capacity to bring international claims and their ability to participate in the creation, development, and enforcement of international law. Particular examples from a wide range of areas of international law, including international human rights law, international criminal law, and international economic law, will be used to show the conceptual and practical participation of individuals in the international legal system. The conclusion reached is that individuals are participants in that system, and are not merely objects that are subject to States' consent, though their degree of participation varies depending on the changing needs and nature of the international legal system.
I. INTRODUCTION The issue of the role of the individual in international law has been a part of the debate over the nature of the international legal system for centuries. In 1532 Francisco de Vitoria considered that the indigenous peoples of South America had some claim to protection under international law (Anaya, 2004) and, in the twenty-first century, the entry into force of the International Criminal Court confirmed the customary international law position of the direct responsibility of individuals under international law for certain actions (see Cassese, Ch 24, below). However, for much of this time the dominant view has been that individuals had no effective independent role in the international legal system. Their role was wholly determined by States and was entirely subject to States' consent. The development of international law, particularly of international human rights law, in the second half of the
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McCORQUODALE
twentieth century has been the main reason why the issue of the role of individuals in the international legal system has again come to prominence.
A. T H E INDIVIDUAL 'The individual' is defined and conceived in a number of different ways in the international legal system. It clearly includes each human being. When human beings (usually known in law as 'natural persons') have any involvement in the international legal system, it is often as part of a group of natural persons acting together. For example, groups of indigenous people and groups who have the right of self-determination are natural persons who act together in regard to some international legal issues. As such, they should be considered to be 'individuals' within the international legal system. Natural persons do form groups due to common interests, such as non-governmental organizations (eg, Amnesty International, Oxfam), although these groups are legally separate entities from natural persons. Corporations are also separate entities that are formed to further the common interests of natural persons and all legal systems recognize the existence and activities of corporations and acknowledge them as non-natural legal persons (Muchlinski, 1999; Dine, 2000). Therefore, the notion of 'individuals' could include all these types of legal person, natural and non-natural. This chapter takes the concept of 'the individual' within the international legal system to include all those natural and non-natural persons acting separately and as groups.' The justification for taking such a view is that the international legal system is a State-based system. The roles of any natural and non-natural persons (what may be termed 'non-State actors') in this system is compared with that of the State. Consequently,excluded from this concept of 'the individual' are States and also those entities who have authority and power that is State-like,such as intergovernmental organizations (eg, the United Nations), armed opposition groups who'control territory (see an example in Elmi v Australia)? or sub-state units in a federal State. In order to clarify as comprehensively as possible the role of the individual in the international legal system, this chapter considers as wide and as diverse a range of 'individuals' acting within that system as possible.
The international legal system is constructed as a State-based system and the dominant positivist theories of international law confirm that construction. This view is that '[slince the Law of Nations is a law between States only and exclusively, States only and exclusively are subjects of the Law of Nations' (Oppenheim, 1905, p 341). A 'subject' of the international legal system can be considered to be one which has direct rights and responsibilities under that system, can bring international claims and, I would argue, is able to participate in the creation, development, and enforcement of international law. Under the dominant view given above, any role of the individual in the international legal system is purely as an 'object' of that system and not as a 'subject'. Individuals are objects, either in
'
This definition is similar to that adopted under the European Convention on Human Rights, see Committee of Ministers 2001. Elmi v Australia,UN Committee Against Torture (2000) 7 IHRR 603.
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the same sense as territory or rivers are objects of the system because there are (State created) legal rules about them, or in the sense that they are beneficiaries under the system, so that treaties on, for example, diplomatic persons or commerce, indirectly benefit individuals. This creation of a binary opposition of 'subject' v 'object' has become part of the definition of international legal personality. An entity has international legal personality if it has direct international rights and responsibilities, can bring international claims, and is able to participate in the creation, development, and enforcement of international law, ie, if it is a subject of the international legal system. The International Court of Justice (ICJ) clarified the issues of international personality, and what is a 'subject' of the international legal system, in its Reparations for Injuries Opinion: The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends on the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States . . . In the opinion of the Court, the [UN] Organisation was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. . . That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. . . It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.' This is an important statement of international legal principles. It directly links being a subject of international law with international legal personality. It clarifies that there can be subjects of the international legal system that are not States. These subjects do not all possess the same rights and duties, and not all of these rights and duties need be on the international plane alone. It also explains how the international legal system has developed, and continues to develop, in ways that allow non-States to have international legal personality and so to act independently in the international legal system (see also Nijman, 2004). In this Opinion the ICJ applied these principles to the position of the UN itself to decide that it did have international legal personality. A later ICJ decision4 has applied these principles to other international (intergovernmental) organizations. While some writers argue that the Reparations for Injuries Opinion only applies to State-created bodies such as the UN (Orakhelashvili, 2001), this Opinion clearly sets out broad principles that could be applied to any non-State actor on the international plane. It recognizes that, while the State is the primary subject of the international legal system, the subjects of that system can change and expand depending on the 'needs of the [international] community' and 'the requirements of international life'. It does not say whether these 'needs' and 'requirements' are solely determined by States (as the dominant theories
' Reparation for Injuries, Advisory Opinion, ICJ Reports 1949, p 174
at pp 178-179. Legality of the Use of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, p 66.
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of international law would suggest) or by other means. After all, the term 'the international community' is here expressly not limited to an international community of States alone (in comparison to the Vienna Convention on the Law of Treaties, Article 53) and so should include States and non-States. So it certainly indicates that there can be'subjects of the international legal system that are not States. Some writers have argued that, rather than the State being the primary 'subject' of the international legal system, the primary 'subject' is the individual (Scelle, 1948). They argue, for example, that individuals are the real actors beneath the State, as the State itself does not exist without individuals. A variation on these ideas is that of Hersch Lauterpacht, one of the most influential British international lawyers of last century, who argued that individuals could become subjects of the international legal system. He considered that the claim of the State to unqualified exclusiveness in the field of international relations was not tenable, especially as: Fundamental human rights are rights superior to the law of the sovereign State . . . [and must lead to the] consequent recognition of the individual human being as a subject of international law. (Lauterpacht, 1950, p 72) Philip Allott adopts an even broader view in which he sees international society not as being comprised of States but as arising from the 'self-creating' of all human beings (AUott, 1992). So these writers would argue that the nature of the international legal system and the 'needs' of the international community have meant that individuals are subjects-the primary or only subjects-of the international legal system. Of course, individuals are necessary for an entity to be recognized as a State, in the sense that an entity must have 'a population' to be a State (see Warbrick, Ch 8, above). In any event, the State is a legal fiction and so it cannot act by itself. Instead individuals and groups act on behalf of the State and in the State's name.' Thus individuals are at the very core of the international legal system, no matter how that system is defined. Yet this does not necessarily make them 'subjects' or 'objects' of this system. The 'subject' v 'object' dichotomy has been criticized by a number of writers, not least because it privileges certain voices and silences others (eg, Koskenniemi, 1989; Charlesworth and Chinkin, 2000). Rosalyn Higgins, now President of the ICJ, offers an alternative approach, arguing that: the whole notion of 'subjects' and 'objects' has no credible reality, and, in my view, no functional purpose. We have erected an intellectual prison of our own choosing and then declared it to be an unalterable constraint. (Higgins, 1994, p 49) Rather she prefers the idea of the 'participant' in the international legal decision-making process. She explains this by use of an example: The topics of minimum standard of treatment of aliens, requirements as to the conduct of hostilities and human rights, are not simply exceptions conceded by historical chance within a system that operates as between States. Rather, they are simply part and parcel of the fabric of international law, representing the claims that are naturally made by individual participants in contradistinction to state-participants.(p 50) Though the individual, in his private capacity, remains distinct from the actions he takes on behalf of the State (Geuss, 2001).
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Under this view, there are many participants in the international legal system, in the sense that there are many different entities, from States and international organizations to transnational corporations and natural persons, who engage in international activity (or 'upon an international plane' to use the ICJ's words set out above in the Reparations for Injuries Opinion). participation may be extensive and over a wide range of international matters or it can be limited to a few issues. Participation will depend on the particular area of the international legal system concerned and the activity and involvement of entities in that area, rather than on the determination by States (and only States) as to whether any nonStates are 'subjects' for a specific purpose. Acknowledgingthese different degrees of participation in the international legal system is consistentwith the position in most national legal systems, where different areas of law will involve different participants, from company law to family law. As the international community changes and the 'needs' or areas governed by international law develop, then so will participation in the international legal system. This argument for considering individuals as 'participants' in the international legal system, rather than as 'objects' or 'subjects', is a compelling and practical one, and does not require an adoption of Higgins's broader conception of the international legal system. Indeed, the notion of participation as a valuable framework to explore involvement in the international legal system (and thus as a means to determine if individuals have a voice in the system) has been applied effectively by Karen Knop from a different conceptual standpoint to that of Higgins (Knop, 2002). At the same time, it is still consistent with the dominant State-based concept of the international legal system, as participation in the system could be viewed as largely dependent on State consent. Participation as an appropriate way to examine activity in the international legal system, falls within the broad legal principles expressed by the ICJ in its Reparations for Injuries Opinion. Therefore, participation as a framework for considering the role of individuals in the international legal system is flexible and open enough to deal with developments in that system over the centuries and is not constricted to a State-based concept of that system or to appearances before international bodies. Accordingly, if it can be shown that individuals are exercising and enjoying 'in fact' (to use the ICJ's words) certain rights, privileges, powers, or immunities in the international legal system then they can be presumed to be acting as international legal persons. Of course, these individuals do not all share the same aims or values across the international community. Many individuals are criticized for their lack of legitimacy, few democratic processes and limited representativeness. They can also reflect the hierarchies and political agendas within States, and can be captive to States and to power. Yet the decision to participate on the international plane is made by the particular individual and is not dictated by States' views, though it may be prompted by State action (eg, to seek investment in a national industry) or State inaction (eg, to fill the need for a secretariat of a treaty body). The degree of participation by an individual will vary, often depending on its own resources and on the attitude of other participants, including States. It is the extent of that participation in the international legal system by individuals, and the State's role in determining the degree of participation, that will be considered in this chapter. This will be examined by reference to the direct rights and responsibilities of individuals under the international legal system, their capacity to bring international claims and their ability to participate in the creation, development, and enforcement of international law as independent participants.
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11. INTERNATIONAL R I G H T S AND RESPONSIBILITIES A. INDIVIDUAL R I G H T S
The Permanent Court of International Justice (PCIJ)had to consider in Jurisdiction of the Courts of Danzig whether it was possible for individuals to have rights under international law. They held: [I]t cannot be disputed that the very object of an international agreement, according to the intention of the contracting parties, may be the adoption by the parties of some definite rules creating individual rights and obligations and enforceable by the national courts6 While this Opinion confirmed that individuals can have rights in the international legal system, these rights will not all be of the same nature. As Wesley Hohfeld (1913) demonstrated, a 'right' can mean a claim-right, a privilege, a power, or an immunity (or a number of these at once). In some instances, the right of the individual within the international legal system is of the nature of the ability to bring a claim (a claim-right) against the State (see further below). However, many of the rights of individuals in the international legal system are more in the nature of an immunity from action against them, such as those that arise due to their status as prisoners of war, or a privilege, such as the liberty to travel on the high seas without interference. In the same way, States have a variety of rights within the international legal system, not all of which enable claims to be brought (eg, International Law Commission, 2001). The rights of individuals and the rights of States in the international legal system are not identical but, whilst they may overlap or interact (such as under international humanitarian law in relation to use of force on a territory affecting combatants and non-combatants), they are distinct rights. The area where individual rights are most developed is in relation to human rights, which include both rights of individuals and of groups, and which are now a matter of international law. At one time governments dealt with those within their jurisdiction as they wished and resisted all criticisms of their actions by claiming that human rights were matters of 'domestic jurisdiction' (under Article 2(7) UN Charter) and the responsibility of each State alone. However, human rights are now an established part of the international legal system with an institutional structure, including supervisory mechanisms to check compliance with legal obligations, and with a defined content of human rights (see Steiner, Ch 25, below). Every single State has ratified at least one treaty containing legal obligations to protect human rights. Human rights issues are raised in political, economic, social, and cultural interactions across the world, in a global way (Falk, 1993). Human rights, as law, are part of the discourse of the international community as it speaks to the elites and to the oppressed, to institutions and to communities. Importantly, all States have acknowledged that 'the promotion and protection of d human rights is a legitimate concern of the international ~ommunity'.~ Jurisdictionof the Courts of Danzig,Advisory Opinion, 1928, PCIJ, Ser B, No 15, pp 17-18. Vienna Declaration (1993), para 4 (1993) 32 ILM 1661. Similar statements are found in the Concluding Document from the Moscow Conference on the Human Dimension of the Conference on Security and Co-operation in Europe (CSCE) (now OSCE) (1991) 30 ILM 1670.
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This acknowledgement that human rights are a legitimate concern of the international community has a direct effect on State sovereignty (Reisman, 1990), in that one aspect of each State's control and authority over its activities on its territory and within its jurisdiction is now subject to international legal review. This applies when a State has expressly agreed to this review by ratifying a treaty protecting human rights, It also applies when the protection of a human right has become a matter of customary international law or jus cogens, which can happen without a State having any express practice on the issue. Some human rights create legal obligations on States that the State cannot evade by contrary practice. For example, the ICJ took the view that South Africa was bound by international obligations in relation to racial discrimination despite its clear contrary practice8 and also that all States must comply with the right of self-determinati~n.~ States have, by treaty and other practice, placed human rights for individuals (including groups of individuals) within the international legal system. There are problems with the way international human rights law has been created, such as the conception that rights are only held in relation to a centralized State (Otto, 1997) and the exclusion of non-State actors from direct responsibility for human rights violations (Clapham, 1993; Addo, 1999; McCorquodale and La Forgia, 2001). Nevertheless, international human rights law is significant in terms of demonstrating that individuals have rights within the international legal system. Individuals also have rights in the international legal system outside the specific context of international human rights law. For example, within international humanitarian law, individuals have certain rights depending on their status as, for example, prisoners of war or non-combatants (Dinstein 1984; Provost, 2002). Many of these individual rights are now considered to be customary international law or even jus cogens. The rights of individuals within the international legal system were all initially determined and placed with that system by States. States decided and agreed that these rights were rights within that system and not solely rights within a national legal system. Martti Koskenniemi concludes from this that the creation of these rights of individuals by States, particularly within international human rights law, affirms the position of States as the sole rights-holder in the international legal system: By establishing and consenting to human rights limitations on their own sovereignty, states actually define, delimit, and contain those rights, thereby domesticating their use and affirming the authority of the state as the source from which such rights spring. (Koskenniemi, 1991, p 406) This is a powerful argument. However, as demonstrated above, each State no longer has complete control over the continuance, development, and interpretation of individuals' rights, and the rights of individuals are distinct from the rights of States. Thus a number of the rights of individuals in the international system are now, to some extent, separate from the specific control and direction of States, at least as they are protected by customary international law (or by jus cogens), and are independent rights within the
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJReports 1971, p 16,paras 21-22. East Timor Case (Portugal v Australia), Judgment, ICJ Reports 1995, p 90.
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international legal system. It can be concluded, therefore, that individuals have some distinct rights in the international legal system.
B. INDIVIDUAL RESPONSIBILITY
Responsibility in the international legal system is generally considered to mean a legal obligation that, if breached, can give rise to international consequences (see Crawford and Olleson, Ch 15, below). Even though individuals have been a part of international activity for centuries, from trading to colonizing, generally the actions of individuals did not give rise to any international responsibility on them; it only arose when those actions were attributed to the State and then the State was internationally resp~nsible.'~ The development of individual responsibility for certain crimes under both international criminal law and international humanitarian law illustrate the lineage of individual responsibility in the international legal system, with both piracy and slavery also widely seen as offences against the whole international community, for which individuals were directly responsible (Ratner and Abrams, 2001). The justification for this was that 'the pirate and the slave trader . . . [are each] hostis humani generis, an enemy of all mankind'." Individuals, even when acting as part of the organs of the State and under orders from the State, are independently responsible within the international legal system for certain actions. This was neatly summarized by the Nuremberg International Military Tribunal: Crimes against international law are committed by men, not by abstract entities [of States], and only by punishing individuals who commit such crimes can the provisions of international law be enforced.12 This individual responsibility has recently begun to be enforced through international tribunals and will be in the future by international criminal courts. Prior to this, the individual responsibility still existed, and was ,occasionally enforced in national courts," even though no international judicial body enforced it. In the same way, State responsibility exists even where no other State takes action to enforce it (such as seen in the lack of any legal action after the Chernobyl nuclear power plant explosion). Thus, even though it was necessary for States to agree to the decisions or treaties that created these recent international criminal tribunals and courts, the individual responsibility under international law still existed independently of these agreements. The responsibility arose through customary international law and no one State now has the ability to limit this responsibility, at least with regard to acts such as piracy and genocide. There are limits to the responsibility of individuals under international law. This has been seen most dramatically after major international terrorist acts, most notably those in the USA in 2001, Bali in 2002, Madrid in 2004, and London in 2005 (McGoldrick, 2004; Sands, 2005). These acts do not necessarily fall within the parameters of existing individual responsibility under international law generally or under international human lo
See United States Diplomatic and Consular Stafin Tehran, Judgment, ICJ Reports 1980, p 3.
" Filartiga v Pena-Irala, 630 F.2d 876 (1980). Second Circuit of the US Court of Appeals. l2
Nuremberg Judgment, 22 Trial of the Major War Criminals before the International Military Tribunal
466 (1948). l3
Eg, Attorney-General of the Government of Israel v Eichmann (1961). 36 ILR 5.
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rights law specifically (Warbrick, 2004; Lowe, 2005). Yet a possibility of extending this responsibility of individuals under international law is seen in Security Council Resolution 1373 (2001), where the Security Council declared that: [Alcts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, plann:ng and ;nc;t;ng terrorist acts are
also contrary to the purposes and principles of the United Nations. As this paragraph (also repeated in later Resolutions) does not refer to crimes against
humanity or other acknowledged areas of individual responsibility under international law, it must be asserting that terrorist actions per se give rise to individual responsibility. There is no requirement here to link those activities to a State for there to be international responsibility. Whilst Security Council Resolutions are not automatically international law, they can indicate the direction that international law may be headed. It appears, therefore, that certain actions by individuals (being terrorist actions) could be in breach of international law and so give rise to international responsibility by those individuals. The importance of establishing responsibility of individuals for international crimes is that it demonstrates that there are some actions by individuals that lead to direct international responsibility on an individual. The individual is responsible without any need to link the individual with the State. This draws a clear distinction between the individual and the State in terms of international responsibility.
111. INTERNATIONAL CLAIMS A . B R I N G I N G INTERNATIONAL CLAIMS
The conceptual understanding that individuals have rights and responsibilities in the international legal system does not automatically mean that they have the ability to bring international claims to assert their rights or are able to claim an immunity to prevent their responsibilities being enforced (Hohfeld, above). Thus the PCIJ declared that 'it is scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself . I 4 Instead, the conclusion reached by most writers is that 'individuals are extremely handicapped in international law from the procedural point of view' (Higgins, 1994, p 51). Many of the international institutions that determine claims, such as the ICJ, are barred to individuals, even though a significant number of their cases arise from actions by, or against, individuals. This was seen most starkly in the East Timor casek5where the claims of the East Timorese themselves could not be brought to, or directly considered by, the ICJ. Traditionally, the only means available for individuals to bring a claim within the international legal system has been when the individual is able to persuade a government to bring a claim on the individual's behalf. Even then, it is not the individual's international rights that are being asserted but the State's own rights, as the PCIJ noted:
'4 A p p e a l f i m a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tr~bunal, Judgment, 1933, PCIJ, Ser A/B, No 61, p 208 at p 231. l5 East Timor Case (Portugalv Australia), Judgment, ICJ Reports 1995, p 90.
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[I]n taking up the case of one of its nationals, by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right, the right to ensure in the person of its nationals respect for the rules of international law.I6 The justification -that a State has to assert this type of claim is through the linkage of nationality." The international legal system has developed intricate rules regarding the nationality of people in terms of their relationship to States, as determined by the degree of connection individuals have to the territory of a State. Even then, this nationality connection may be insufficient if there are other international rules that override it or if the State chooses not to take action. Indeed, the ICJ has stated that: [tlhe State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease' [and] '[slhould the natural or legal persons on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law.I8 This position was been challenged in the UK in a case arising from the clearly internationally unlawful detention by the US of prisoners in Guantanamo Bay from the time of the Afghanistan conflict in 2001. In Abassi v Secretary of State for Foreign and Commonwealth AffairsI9 the applicant (a British national) sought judicial review of the adequacy of the diplomatic actions of the British government with the US government. The UK Court of Appeal found that there was a legitimate expectation (though a limited one) by nationals that their government would make representations to another government to assist them and the courts could thus consider the diplomatic activity of the UK government. In this instance, the Court found that the UK government's actions were sufficient yet they also expressed their very deep concern about the violation of international law that was occurring in Guantanamo Bay. This position, by which the individual could not assert claims directly to international bodies, began to change during the twentieth century. A series of international bodies were established in the early part of that century as a means to settle conflicts between States and included in their powers was the ability to consider claims by individuals. These bodies included the Central American Court of Justice, the Mixed Arbitral Tribunals in Europe, the minority protections offered by the League of Nations, and the dispute mechanisms of the International Labour Organization (Menon, 1992). In the second half of that century, the vast growth of international human rights supewisory bodies and international commercial arbitral bodies has taken the issue of individuals bringing international claims to a higher leveLZ0 Rather than set out the detailed provisions of the large number of treaties or other
l6 Panevezys-Saldutiskis Railway, Judgment, PCI], SerA/B, No 76,p 4. Cf LaGrand (Germany v United States of America), Merits, Judgment, ICJ Reports 2001, p 466, para 42. l7 There are some instances where a State might be able to bring a claim on behalf of the international community (of States and non-States): see International Law Commission (2001). Article 48. l8 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3, paras 78-79, l 9 Abassi v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1316,19 September 2002; (2003) 42 ILM 358. 20 See the International Law Commission Reports on Diplomatic Protection and its changes over time: UN Doc AICN.41484 (1998) and UN Doc AlCN.41506 (2000).
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documents that enable individuals to bring claims in an international context, the rest of this section will summarize the main aspects of the key areas of international law in which individuals can bring claims: international human rights law and international economic law. However, it should be noted that individuals can also bring international claims in other areas; thus victims of violations of international criminal law may seek reparations under Article 75 of the Statute of the International Criminal Court (Schabas, 2004), and employees of some international organizations may bring claims against that organization to an international body (Gray, 1987).
B. INTERNATIONAL HUMAN RIGHTS LAW
Within international human rights law, a number of treaties permit individuals to bring claims against a State, alleging violations of their human rights, before both international and regional bodies. In addition, procedures developed by the UN Economic and Social Council allow individuals to bring complaints to the UN Sub-Commission on the Promotion and Protection of Human Rights about any State party to the UN Charter, as do procedures developed by UNESCO and the OSCE. This is an extraordinary development in the international legal system away from a position in which a State's actions on its own territory were not subject to international review. Claims can be brought by individuals against the State of which they are a national and against a State in whose jurisdiction they happen to be, even if temporarily, irrespective of whether they are a national of that State.21In most instances, the individual is a direct party to the proceedings before the international body (with most proceedings being conducted by written submissions). Decisions can be made, or 'views' given, by international bodies in which States are found to be in violation of their human rights obligations and remedies are indicated. These remedies range from monetary compensation to ordering the State to conduct investigations into the violations (Shelton, 1999). Despite all of this, the State is still an intermediary, or directly involved in, these international claims by individuals. Such claims cannot be brought unless the relevant State has ratified the relevant treaty (whether a human rights treaty or a treaty establishing an international organization, such as the United Nations Charter, which facilitates claims by individuals), or the State has accepted the relevant Article of the treaty that allows individuals to bring the claim. In addition, no international claim can be brought by an individual unless he or she has exhausted domestic remedies in the relevant State. The reason for the latter is to enable States to resolve the issues at national level first, with the international bodies only being involved after all proceedings or other action at the State level have been effectively exhausted. Thus, in principle, there is no independent ability for individuals to bring claims before international human rights bodies. Nevertheless, there are some aspects to these individual claims that show, in practice, some independent ability for individuals to bring international claims in this area. First, there is increasing expectation that States parties to some human rights treaties, particularly the ECHR and the ACHR, will allow individuals to bring claims no matter what the State may wish: indeed, the ECHR was amended by its 1lth Protocol (in force November 1998) so that the right of individual petition was no longer optional for States parties. This 2'
Eg, Soeringv United Kingdom, Iudgment o f 7 Iuly 1989, ECtHR, Ser A, No 161,ll EHRR439.
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had in fact been the position since the early 1990s, as an undertaking to ratify the ECHR was a precondition of admission to the Council of Europe. Consequently, there are now about 800 million individuals who have the right to bring international claims under that treaty (Committee of Ministers, 2001). In addition, ratification of the ECHR is a requirement before a State can be party to the European Union (Treaty on European Union, Article 6; Nowak, 1999). Thus, in practice, European States are no longer able to prevent individual claims under that regional human rights system. Further, even if a State is not party to a particular human rights treaty, some international bodies, such as the Inter-American Commission on Human Rights and the UN Commission on Human Rights, can still, on the basis of individuals' claims revealing 'a consistent pattern of gross and reliably attested violations of human rights', make public conclusions about that State's human rights record. Second, the link between nationality and the ability to bring claims is no longer essential. The link is now jurisdiction. If a State has jurisdiction over an individual, which power can include where that individual is not a national of that State and even where that State's l ~ ~ an individual can bring a claim against jurisdiction over the individual is ~ n l a w f uthen that State if that State has ratified a relevant human rights treaty. The State of which that individual is a national does not have to be a party to the treaty and the individual could be a stateless person. This has meant that, in practice, States are now subject to a wider number of claims by individuals before international bodies. This represents 'a momentous advance in the world community' (Cassese, 1986, p 102). Third, these treaties give individuals the procedural capacity to bring international claims. While this is a restricted capacity as it is dependent on State consent (as seen above), it does have significant practical effects. States rarely ignore the individual's claim to an international body. Rather they often respond to the claim at some length (though the practice is by no means universal) especially as, if they do not respond, the international body will still consider the matter, as there is some onus on the State to prove that there has been no violation.23When an international human rights body reaches a conclusion in relation to an individual's claim then States usually treat this conclusion as a serious matter that requires some response. If the conclusion is that there is no violation of a human right then the State will ensure that the media is aware of this. If the conclusion is that there has been a violation, then the State will respond in some way, from amending the relevant law or practice24to making a derogation from the relevant provision (should this be possible)25or offering a justification for their actions. Sometimes a State will even seek to denounce the treaty and criticize the international body: Peru, for example, withdrew its acceptance of the jurisdiction of the Inter-American Court of Human R~ghts before later re-accepting it. Very rarely will the State not respond at all. So these individual claims are treated seriously by States, in the same way as a claim brought against a State by another State before an international body is treated seriously. Finally, the conclusions reached by international human rights bodies about individual claims can have practical effects on a State through the adoption of those conclusions by
22
23 24 25
Loizidou v Turkey, Judgment of 3 March 1995, ECtHR, Ser A, No 310,20 EHRR 99. Bleirv Uruguay (1982) 1 Selected Decisions of the Human Rights Committee 109. Eg, Sunday Times v UK, Judgment of 29 April 1979, ECtHR, Ser A, No 30,2 EHRR 245. Eg, Brogan v United Kingdom, Judgment of 29 November 1988, ECtHR, Ser A, No 135-B,11 EHRR 117.
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national courts2' and by other international bodies whose decisions are legally binding on a State. The latter is seen in the approach taken by the European Court of Justice, which decided that 'respect for fundamental [human] rights forms an integral part of the general principles of [European] Community law protected by the Court of Ju~tice'.~'Thus the practical effects of individuals being able to bring claims before international human rights bodies are such as to place effective limits upon a State's ability to control or restrict those claims. The State's role as an intermediary, or barrier, between the individual and an international human rights body, whilst still crucial for an individual to be able to bring a claim is, in practice, permeable.
C . I N T E R N A T I O N A L E C O N O M I C LAW
One of the areas of significant growth in the international legal system since the latter part of the twentieth century has been international economic law. Part of this growth has included the creation and development of mechanisms by which individuals, usually corporations, can bring claims against States. These mechanisms were initially ad hoc arbitration bodies and inter-State bodies to which individuals have access, for example, the Iran-US Claims Tribunal and the United Nations Compensation Commission. They now include institutional bodies (both treaty-based and non-treaty based) with established procedures, such as under the International Chamber of Commerce and the International Centre for the Settlement of Investment Disputes and through the model law of the United Nations Commission on International Trade Law. Each of these mechanisms allows individuals to bring claims against a State to an international body, which makes a decision, usually legally binding and enforceable, in relation to the claim (Redfern, 2004). The ability of an individual to bring an international claim against a State was considered by Arbitrator Dupuy in Texaco v Libya to show the international legal personality of an individual: [Sltating that a contract between a State and a private person falls within the international legal order means that for the purposes of interpretation and performance of the contract, it should be recognized that a private contracting party has specific international capacities. But, unllke a State, the private person has only a limited capacity and his quality as a subject of international law does enable him only to invoke, in the field of international law, the rights which he derives from the contract.28 While Dupuy's reasoning is consistent with that of the ICJ in the Reparations for Injuries Opinion in relation to the ability of non-State actors to have international legal capacity for specific purposes and functions, it does not completely reflect the position today. Most of the disputes between individuals and States in this area are now resolved by a combination of public and private international law (Sornarajah, 1997), with decisions of international bodies enforced through national law, often as a consequence of a treaty obligation (such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958). 26 As in R v Bow Street Metropolltan Shpendiary, ex parte Pinochet Ugarte (Amnesty International Intervening) (No 3 ) [2000] 1 AC 147; [I9991 2 All ER 97. 27 Internationale Handelsgesellschaft [1970] European Court of Justice Reports 1125, para 4. '"exaco Overseas Petroleum Companyv Libyan Arab Republic (1977), 53 ILR 389.
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In international economic law, as with international human rights law, it is the State that enables the individual to bring a claim either by ratifying the relevant treaty and/or through a contract agreed specifically by the State with the individual. However, in this area of law the ability of the State to refuse to allow individuals to bring international claims is often quite limited. In many instances the State, particularly a developing State, has little ability to resist an individual's (usually a transnational corporation) request to be able to bring an international claim (or to ratify the relevant treaty to enable such a claim to be made). This is because the economic power of such individuals is far greater than that of many States (McCorquodale, 2002). In addition, many economically powerful States will place pressure on other States to allow (eg, by ratifying the relevant treaty) individuals to bring these claims due to the power of the individual in that economically powerful State. For example, in a case between a company (Santa Elena) with a majority of US shareholders and Costa Rica before an ICSID Arbitral Tribunal, it was stated that 'a $US175,000,000loan by the Inter-American Development Bank to Costa Rica was delayed at the behest of the US until Costa Rica consented to refer the Santa Elena case to international arbitrati~n'.~~ In addition, many of the claims brought by States to international economic legal bodies, such as under the dispute settlement procedures of the World Trade Organization, are initiated, sponsored, and prosecuted in effect by the individual corporations that are affected by the trade action that is the subject of the claim (Croley and Jackson, 1996; Charnovitz, 2001). Indeed, the drafting of key international economic treaties is often done at either the instigation of, or with the direct involvement of, transnational corporations, as seen in the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994. Further, the World Bank has created an Inspection Panel, which allows individuals who believe that they will be affected detrimentally by a project in a State that is to be funded by the World Bank to ask the Panel to investigate their claim (Resolution No 93-6, 1993). The Bank can do this even if the State is opposed to such investigation. A similar system is operated by the Asian Development Bank and the Inter-American Development Bank. This pressure from individuals for more control over international activity in the economic area will increase with globalization. The major economic region of Europe provides the opportunity for individuals to bring daims to an international body. In Van Gend en Loos the European Court of Justice held: The [European] Community [now European Union] constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and institutions of the Cornm~nity.'~ This decision highlights the limitations on the ability of States to prevent claims by
29
O'
Santa Elena v Costa Rica,ICSID Final Award, 17 February 2000, para 25. Van Gend en Loos, European Court of Justice (1963) 1 CMLR 82, 129.
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individuals under European law. Though there are some situations in which the individual can bring a claim directly to the Court, in fact the main avenue for individuals to bring claims under the European Union treaties is in their national courts (De Witte, 1999). There is also indirect access to the European Court of Justice, as most cases are brought to
the Court by national courts seeking an interpretation from the Court in relation to European Union Treaty issues arising in the individual claim before that national court (Treaty of European Union, Article 234). Whilst States can withdraw from these European treaties, the practical consequences of withdrawal from these foundational elements of the European Union are such that a State's ability to do this has effectively now disappeared. The ability of individuals (mainly corporations) to bring international claims in international economic law is now considerable. The main participants in a number of areas of international economic law are primarily States and corporations and they are often acting on equal terms. In negotiation of contracts where a transnational corporation is involved, an agreement on a dispute settlement mechanism is vital. Invariably this will be an international body to which the corporation can bring a claim and obtain an enforceable judgment. For most States that seek to encourage foreign investment, such an agreement allowing international dispute settlement is necessary and is not able to be rejected. Thus, to all intents and purposes, individuals now have an independent capacity to ensure that they can bring an international claim in some areas of international economic law.
D. IMMUNITIES It is generally considered that, under the international legal system, only States have immunities from claims. These immunities can arise through non-acceptance of an international or a national legal mechanism. In addition, diplomats, heads of state, representatives of international organizations, and others may have personal immunities arising from their relationship with the State or State-based bodies, even when acting outside their official roles. Even former Heads of State3' and former Foreign Ministers3' can have some personal immunity. These latter types of immunity are personal to the individual concerned and cannot be easily revoked by the State (though they are revocable). So it is possible to see an increasing recognition of the development of an immunity for individuals separate to that of the immunity of States. Overall, the development of international law, particularly in the areas of human rights and economic law, has provided individuals with the ability of make claims to international bodies and have some personal immunities. In principle this ability is determined by States and their agreement to certain treaties that provide for individuals to make claims. But in practice many States are becoming less able to restrict, or to prevent, individuals having the ability to make international claims. There are at least some aspects of the international legal system that allow individuals an effective independent capacity to bring an international claim.
3 1 R v Bow Street Metropolitan Stipendiary, ex parte Pinochet Ugarte (Amnesty International Intervening) (No 3) (20001 1 AC 147; [I99912 All ER 97. 32 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo/Belgium), Prelrminary Objections and Merits, Judgment, ICJReports 2002, p 3.
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IV. CREATION, DEVELOPMENT, A N D ENFORCEMENT OF INTERNATIONAL LAW One of the essential aspects of an international legal person is 'the capacity to participate in international lawmaking and to enforce rules of international law' (Orakhelashvili, 2001, p 256). From the classical definition of the sources of international law found in Article 38 of the Statute of the ICJ, where State practice and State treaty-making are pre-eminent, to the laws on territory and jurisdiction being about State boundaries, it is the State that appears to decide exclusively on the creation, development, and enforcement of international law. Even the definition of which entity is a State is decided (through the process of recognition) by other States. It is necessary to see the extent to which individuals have been involved in the creation, development, and enforcement of international law.
A. R I G H T OF SELF-DETERMINATION
One area where the role of the individual can be seen as a challenge to the State-based system and where individuals have been involved in the creation, development, and enforcement of international law is with respect to the right of self-determination. Article 1 of both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights provides that 'all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development'. This right is a collective right, that is, a right of a group of individuals as a group. Its importance in relation to this chapter is that it is a part of the international legal system where the priority is given to groups of individuals and not to States. Whilst the definition of the right of self-determination, including its limitations, have been drafted by States and a number of decisions about its exercise, such as whether to recognize a self-determining entity as a State, are decided by States, much of its development has been by individuals acting as a group. This can be shown in a number of ways: from its original focus in the early part of the twentieth century on minorities within and across States; its development beyond a legal justification for decolonization (which operated largely within a State-based structure) to its application outside the colonial context to independent States and internal selfdetermination; and its emphasis on the right of the people to decide their own destiny (McCorquodale, 1994). Some of these aspects were explained by Judge Nagendra Singh in the Western Sahara Opinion, when he said that: [Tlhe consultation of the people of a territory awaiting decolonization is an inescapable imperative . . . Thus even if integration of territory was demanded by an interested State, as in this case, it could not be had without ascertaining the freely expressed will of the people-the very sine qua non of all dec~lonization.~~ Indeed, the British government, one of the largest colonizers, went further when it stated: 33
Western Sahara, Advisory Opinion, ICJReports 1975, p 12 at p 81
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'[Ajs the [United Nations] Charter and the two International Covenants expressly declare, [it is] a right of peoples. Not States. Not countries. Not governments. people^.'^^ It can be seen that 'the peoples in whom [the] right is vested are not inherently or necessarily represented by States or by governments of States' (Crawford, 1988, p 166).
In
fact,
so successful have groups of individuals been
in relation to the right of self-
determination that new States have arisen despite the expressed wish of some very powerful States that this should not happen (eg, in the early stages of the break-up of the former Yugoslavia) and States are now forced to accept that self-determination applies to groups within States.35Indeed, it could be considered that the right of self-determination has changed the international legal system significantly as even the elements taken into consideration as to whether an entity is a State now include whether that entity complies with the right of self-determination. With all the restrictions that States can bring to the exercise of the right of self-determination, its development has been beyond the control of States and its enforcement has frequently been due to the persistence of individuals and not of States, which largely remain unwilling participants in this area. Whilst there remain concerns about the abuse of the right and the unequal impact of the right, especially on women (Charlesworth and Chinkin, 2000), the participation of peoples in this area opens the possibility of a less State-based and territorial idea of the right of self-determination (Marks, 2000; Young, 2000; Knop, 2002). The power of the people is expressed by Judge Ammoun in the Namibia Opinion: Indeed one is bound to recognize that the right of peoples to self-determination, before being written into charters that were not granted but won in bitter struggle, had first been written painfully, with the blood of the peoples, in the finally awakened conscience of humanity.36 A recent example of this has been the exercise of the right of self-determination of the people of East Timor, who, despite years of bloodshed, oppression, subjugation, and occupation by States with the tacit or express consent of other States, celebrated their independence as a new State on 20 May 2002.
B. INDIGENOUS PEOPLES
Another area of international law where the 'conscience of humanity' has been awakened is in relation to indigenous peoples. Although their international legal status had been acknowledged in the sixteenth century and some national courts considered them as communities distinct from States, it was not until late in the twentieth century that substantial renewed consideration was given to their position in the international legal system (Anaya, 2004). Most significantly, the Sub-Commission of the UN Human Rights Commission established a Working Group in Indigenous Populations in 1982. This Working Group comprised many representatives of indigenous peoples, who could participate fully in the drafting of (what became) the UN Draft Declaration on the Rights of 34 Statement by the United Kingdom representative to the United Nations Commission o n Human Rights (Mr H Steel), 9 February 1988 (1988) 59 BYIL 441. 35 Reference Re Secession of Quebec, Canadian Supreme Court (1998) 37 ILM 1340. 36 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1 970), Advisory Opinion, ICJReports 1971, p 16 at p 74.
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Indigenous Peoples 1994. This Draft has been resisted by a number of States and until States agree on its terms it will not become a UN Declaration. This is because States still have final control over the terms of any international documents on indigenous peoples. But its importance lies in the fact that the process of the creation and development of this Draft has largely been outside the sole control of States. It was drafted with a significant degree of participation by indigenous peoples, who were, in the drafting process, acting on almost equal terms to State representatives. This process was revolutionary in the United Nations system (Llm, 2000). Process and procedure, as discussed in relation to human rights, are significant aspects of the international legal system in terms of clarification of the participants in that system. In addition, despite the lack of any legal obligations arising from the Draft, as it is only a draft Declaration, it is being referred to continuously and seriously in the international community as a starting point (or more) for international legal acknowledgement of the rights and status of indigenous peoples.
C. NON-GOVERNMENTAL ORGANIZATIONS
The participation of individuals, usually as groups or peoples, in the creation, development, and enforcement of international law in the areas of self-determination and indigenous peoples has been fostered by the growing role of non-governmental organizations (NGOs). These organizations, which are part of international civil society (Cullen and Morrow, 2001), have had an increasingly crucial effect on the creation, development, and enforcement of many parts of the international legal system. Even in earlier centuries their role was relevant, as seen in the activities of the Anti-Slavery Society being crucial to the abolition of slavery and the role of women's groups (Bianchi, 1997). In more recent times NGOs have been important in the creation of international law, with, for example, NGOs assisting in the drafting of the Convention on the Rights of the Child (as acknowledged in the travaux pr4aratoires of that treaty-Detrick, 1992) and the Convention on the Conservation of Migratory Species of Wild Animals 1979 (Bowman, 1999), organizing a systematic campaign towards the adoption of the Convention Against Torture and other related documents (Van Boven, 1990), the creation of the International Criminal Court (Pace and Thieroff, 1999) and the banning of landmines (Anderson,2000),as well as fostering proposals for the establishment of a UN High Commissioner for Human Rights (Clapham, 1994). There are two areas of the international legal system where the law has developed primarily as a response to the activities of NGOs. These are international humanitarian law, where the role of the International Committee of the Red Cross (ICRC) has been crucial, and issues relating to labour conditions, where trade unions and employer organizations have played a significant role. The ICRC has the unusual express acknowledgement of its role in the Geneva Conventions 1949 and the 1977 Protocols. For example, States can entrust the fulfilment of their duties to the ICRC (common Article 10 (or 11) of the Conventions), they must cooperate with the ICRC during conflicts (Article 81 Geneva Prisoner of War Convention) and before any proposed amendment by a State to the Protocols can be acted upon, the ICRC must be consulted (Article 97 Protocol I and Article 24 Protocol 11).Similarly,trade unions and employer organizations are institutionally part of the International Labour Organization, which has adopted many treaties and other international documents. Of similar power, but with a less institutional role, have
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been the activities of environmental NGOs, who are a vital element in the creation and sustenance of international environmental law (Cullen and Morrow, 2001). The roles that NGOs play in relation to the development of international law are numerous. They include 'elaborating further interpretative rules in connection with already existing international instruments [which have come to be] referred to as , authoritative sources' (Van Boven, 1990, p 357). They are involved in international decision-making, usually indirectly, by their participation in international fora, from the UN itself to its agencies and as a distinct part of international conferences. Indeed, NGOs can be 'sought-after participants in a political process . . . that allow NGOs to move from the corridors to the sessions' (Knop, 1993). Sometimes this participation can be important as a balance against States' views, as seen in the Bangkok NGO Declaration on Human Rights that appeared successfully to reduce the impact of the Asian States' Declaration in relation to cultural relativism (Steiner and Alston, 2000, p 549), and sometimes NGOs act in opposing ways due to their different objectives (eg, during the Beijing Conference on Women-Otto, 1999).Sometimes NGOs are essential to the continuing operation of some international bodies, as the African Commission on Human Rights has acknowledged (Motala, 2002), due to their provision of information, people, and resources. In the area of international environmental law the role of NGOs has been particularly crucial, for example, in relation to the protection of birds:
...
..
[Tlhe role of [NGOs] has proved to be of vital importance. Not only have they regularly pressed for the adoption of agreements . . . they have frequently shown a willingness to undertake much of the preliminary drafting work necessary to make such projects a reality. Insofar as these agreements, once concluded, have required to be sustained by technical resources and expertise, NGOs have been prominent in the provision of such support. . . [In relation to one treaty,] one such [NGO] has also provided the administrative infrastructure for the establishment of a secretariat. (Bowman, 1999, p 298) Thus the terms of the treaties that are eventually ratified are often drafted and negotiated by non-State entities. The participation of NGOs in the treaty process itself also ensures greater transparency and accountability of States for their negotiating positions. To look solely at the end process (ie, the ratified treaty) without any examination of the process by which that law is made, ignores the discursive context, power structures and interests involved in international law-making. This powerful role has been recognized at times, with NGOs being parties, with States, to Memoranda of Understanding (which are international agreements, though are not treaties) concerning conservation measures about particular species, with responsibilities being placed on both States and NGOs under these Memoranda (Bowman, 1999). NGOs are also active participants in the enforcement of international law. In many instances they assist individuals to bring international claims, or bring claims themselves, and they provide information to international bodies that will often not be provided by States. These roles of NGOs are accepted now in practice by States, by the rules of procedure of the international bodies, and are even specifically referred to in some treaties (eg, Article 45 of the Convention on the Rights of the Child). NGOs have regularly brought amicus curiae information to international bodies, whereby they have sought to assist the international bodies in making decisions in cases brought by others against a State. This role is important and could be extended to the ICJ as:
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[ICJIjudgments affect not only the rights and obligations of states parties to the dispute, but also increasingly the rights and obligations of individuals, justice requires that [NGOs] representing the public interest have the opportunity to submit information and arguments to the Court. Such participation reinforces the concept of obligations erga omnes and can lead to enhancing the role of the Court and the long-term development of international law. (Shelton, 1994, p 642) At the same time, NGOs and individuals have used national legal systems to enforce international legal obligations of States (Vazquez, 1992). In addition, NGOs operate as fact-finding bodies, lobbyists, and advocates in a way that generates publicity about violations of international law. These can be most effective means of enforcing compliance with international law by States in an international legal system where other forms of enforcement are often lacking or rarely operate. NGOs can also have such a powerful effect on States that some States will act directly against them, even if this is in breach of international law. For example, the persistent activities of Greenpeace, an environmental NGO, against French nuclear testing in the South Pacific led to the French government ordering some ofits agents to sink the Greenpeace ship 'Rainbow Warrior' in a New Zealand harbour. As a consequence of this breach of international law, France had to pay compensation to New Zealand for interference in its sovereignty (but not to Greenpeace) and send its agents to a remote Pacific i~land.~' It is beyond doubt that NGOs have participated in the creation, development, and enforcement of international law. They have brought new ideas, sustained focus and pressure, and effective means of action in the international legal system (Rajagopal, 2003). They offer an alternative voice to States, though they share the problems of lack of legitimacy, few democratic processes, and limited representativeness of many States (Cullen and Morrow, 2001). They provide a means to hold States and State-based organizations to account and they seek to increase the transparency of international decision-making. The importance of their roles has been acknowledged in the European Convention on the Recognition of the Legal Personality of International NGOs 1991 and the UN Declaration on the Rights of Human Rights Defenders 1998. Much of NGOs' activity is only possible because States allow it to happen, such as participation in international fora, but not all of it is controlled by, or controllable by, States. As a consequence a 'peculiar process of interaction between traditional law mechanisms and transnational social processes with the mediation of non-state actors has become a novel method of law-making and law enforcement' (Bianchi, 1997, p 201). NGO participation may be a novel method of international law-making but it is now an accepted method.
D. JURISTS
The role of jurists, or individual writers on international law, has had a long-term effect on international law. Jurists have been given a special position in the creation, development, and enforcement of international law with Article 38(d) of the ICJ Statute authorizing the ICJ to apply 'the teachings of the most highly qualified publicists of the various nations as [a] subsidiary means for the determination of rules of [international] law'. Their influence
37
Rainbow Warrior Arbitration (New Zealand v France), Special Arbitration Tribunal (1990), 82 ILR 499.
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can be specific, such as their influence on the inclusion of persecutions on the basis of gender being considered as crimes against humanity (Bianchi, 1997), the drafting of the Siracusa Principles on derogations and the Limburg Principles on economic, social, and cultural rights, and on decisions of international bodies (Brownlie, 2003). It can also be general, such as the role of individual jurists on the various Draft Articles of the International Law Commission. The roles of jurists as experts on international law, from membership of international bodies, such as the ICJ and international human rights bodies, to advising States and being members of expert panels in international organizations (from the World Health Organization to the Atomic Energy Agency), is also important. From the earliest philosophers, the understanding of what is the nature of international law has been a crucial part of the development of rules and principles in the international legal system. Allott has shown how the ideas of Vattel 'determined the course of history' (Allot, 1989, p 14) as Vattel propounded a sovereignty theory of the, State (in contrast to the more inclusive 'all humanity' idea that had been expounded earlier), which now forms the basis of much of the dominant understanding of international law Indeed, much of our understanding of what is the international legal system, and the role of individuals in it, is affected by the writings of jurists. For example, jurists who adopt a positivist approach to the international legal system, although generally considering that the individual has no independent role from that of the State, have been important in identifying rules of customary international law and persuading States that these rules legally bind them (Oppenheim, 1905). Yet it has been argued that the positivist concept of international law as a State-based process 'is incapable of serving as the normative framework for present or future political realities . . . new times call for a fresh conceptual and ethical language' (Teson, 1992, pp 53-54). Some of the fresh conceptual and ethical language that has been suggested includes the application of feminist theory to the international legal system, which shows the limitations of the State as a framework for engagement in gender issues (Charlesworth, Chinkin, and Wright, 1991) and a recognition that relying on constant binary oppositions, such as State v non-State, cannot produce a coherent international legal system (Koskenniemi, 1989). Others consider that 'the burgeoning canon of individual rights has begun to crack open the previously encrusted [positivist] VateUian system' (Franck, 1999, p 281) or that the notion of State sovereignty has always been indeterminate and fluctuating (Kostakopoulou, 2002) so that 'we should adjust our intellectual framework to a multi-layered reality consisting of a variety of authoritative structures . . . [in which] what matters is not the formal status of a participant . . . but its actual or preferable exercise of functions' (Schreuer, 1993, p 453). Others reject the current conceptual parameters and argue for a new understanding of international society (Allott, 2001). Each of these conceptual approaches seeks to explain the law-making processes of the international legal system and, in so doing, offers reflections on the role of the individual in that system. These approaches have occasionally been taken up by States and others in ways that have affected the development of international law (eg, in ICJ decisions and UN resolutions). A specific example is found in the speech of the UN Secretary-General,Kofi Annan, on the award of the Nobel Peace Prize 2001 to him and to the UN: Over the past five years, I have often recalled that the United Nations' Charter begins with the words: 'We the peoples'. What is not always recognized is that 'We the peoples' are made
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up of individuals whose claims to the most fundamental rights have too often been sacrificed in the supposed interests of the State or the nation . . . In this new century, we must start from the understanding that peace belongs not only to States or peoples, but to each and every member of those communities. The sovereignty of States must no longer be used as a shield for gross violations of human rights. Peace must be made real and tangible in the daily existence of every individual in need. Peace must be sought, above all, because it is the condition for every member of the human family to live a life of dignity and security. . . Throughout my term as Secretary-General, I have sought to place human beings at the centre of everything we do-from conflict prevention to development to human rights. Securing real and lasting improvement in the lives of individual men and women is the measure of all we do at the United Nations. (Annan, 2001, pp 2-3) Therefore, it can be seen that, in various ways, individuals have had, and continue to have, an important part in the creation, development, and enforcement of international law. This has been by groups of individuals, from peoples with the right of self-determination and indigenous peoples, to NGOs, as well as the influence of jurists. It can also be seen in the contribution of women and men throughout the centuries, who offer new ideas and practical applications in relation to international law.
V. CONCLUSION The role of the individual in the international legal system remains a contentious one. It can depend on how the nature of the system is conceptualized and applied, as well as an understanding of diverse areas of international law. In most cases the crucial issue is whether the individual has an independent role in the system or whether the individual's role is solely dependent on State consent. In approaching these issues, I have adopted a broad definition of the 'individual' and suggested that 'participation' in the international legal system (as against the 'subject' v 'object' stricture) is the relevant context. This has opened up more possibilities to discover the conceptual and practical role of the individual in the system. It has been shown that individuals do have considerable international rights and responsibilities in the system, a number of which are independent from a State's ability to control or determine them. The vast array of international claims available to individuals are largely still within the control of States in principle, but not in practice. It is clear that the individual has been a crucial factor in the creation, development, and enforcement of international law. As the ICJ noted, the 'needs of the [international] community' and 'the requirements of international life' (see above) have ensured that the individual has a continuing role in the international legal system. In addition, individuals, by their actions, influence not only the concept and content of international law but also the way it is applied by States and the extent and manner by which a State consents to rules of international law (see further McCorquodale, 2004). Yet this conclusion is a challenge to much of the current dominant view as Judge Can~adoTrindade, President of the Inter-American Court of Human Rights noted: The doctrinal trend which still insists in denying to individuals the condition of subjects of international law is . . . unsustainable [and] that conception appears contaminated by an
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ominous ideological dogmatism, which had as the main consequence to alienate the individual from the international legal order. It is surprising-if not astonishing-besides regrettable, to see that conception repeated mechanically and ad nauseam by a part of the doctrine, apparently trying to make believe that the intermediary of the State, between the individuals and the international legal order, would be something inevitable and permanent. Nothing could be m o r e f a u a c i ~ u s . ~ ' Individuals may not yet be participating in the international legal system to the same extent as States. But the trend is clear: the role of the individual in this system is continuing to expand, often despite the wishes of States. If, as Annan asserts, the ultimate foundation of the international legal system is 'We, the Peoples', then the role of each State is not to ensure and perpetuate its own power but to enable every individual to live a life of dignity and security and so to ensure human flourishing. The interests of individuals must count for more than the interests of States.
REFERENCES ADDO,M (ed) (1999), Human Rights Standards and the Responsibility of Transnational Corporations (The Hague: Kluwer). ALLOTT, P (1988), 'State Responsibility and the Unmaking of International Law', 29 Harvard ILJ I. (1989), International Law and International Revolution: Reconceiving the World (Hull: Hull University Press).
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- (1992), 'Reconstituting HumanityNew International Law', 3 EJIL 219. -(2001), Eunomia: New Order for a New World, rev edn (Oxford: Oxford University Press). ANAYA, J (2004), Indigenous Peoples in International Law, 2nd edn (Oxford: Oxford University Press). ANDERSON, K (2000), 'The Ottawa Convention Banning Landmines, The Role of International Non-Governmental Organisations and the Idea of International Civil Society', 11 EJIL 91. ANNAN,K (2001), 'We can love what we are without hating what-and who-we
are not', Nobel Peace Prize Lecture, 10 December 2001, www.unhchr.ch. BIANCHI, A (1996), 'Globalization of Human Rights: The Role of Non-State Actors', in Teubner, G (ed), Global Law Without a State (Aldershot: Dartmouth). BROWNLIE, I (2003), Principles of Public International Law, 6th edn (Oxford: Oxford University Press). CASSESE, A (1986), International Law in a Divided World (Oxford: Clarendon Press). CHARLESWORTH, H and CHINKIN, C (2000), The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press). - -,and WRIGHT,S (1991), 'Feminist Approaches to International Law,' 85 AJlL 63 1. CHARNOVITZ, S (2001), 'Economic and Social Actors in the World Trade Organization', 7 ILSA 1 of International and Comparative Law 259. CLAPHAM, A (1993), Human Rights in the Private Sphere (Oxford: Oxford University Press).
Advisory Opinron on the Legal Status and Human Rights of the Child,Advisory Opinion OC-17/02 of 28 August 2002, 1 1 International Human Rights Reports (2004) 510, Concurring Opinion of Judge Canqado Trindade, at paras 26-27.
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CLAPHAM, A (1994), 'Creating the High Commissioner for Human Rights: The Outside Story', 5 EJIL 556. COMMITTEE OF MINISTERS (2001), Report of the Evaluation Group on the European Court of Human Rights, 22 HRL] 308. CRAWFORD, J (ed) (1988), The Rights of Peoples (Oxford: Oxford University Press). CROLEY,S and JACKSON, J (1996), 'WTO Dispute Procedures, Standard of Review and Deference to National Governments', 90 AJIL 193. CULLEN, H and MORROW, K (2001), 'International Civil Society in International Law: The Growth of NGO Participation', 1 Non-State Actors in International Law 7. DETRICK, S (ed) (1992), The United Nations Convention on the Rights of the Child: A Guide to the 'Travaux Prkparatoires' (Dordrecht: Martinus Nijhoff). DEWITTE,B (1999), 'The Past and Future of the Role of the European Court of Justice in the Protection of Human Rights', in Alston, P, Bustelo, M, and Heenan, S (eds), The EU and Human Rights (Oxford: Oxford University Press). DINE,J (2000), The Governance of Corporate Groups (Cambridge: Cambridge University Press). DINSTEIN,Y (1984)) 'Human Rights in Armed Conflict', in Meron, T (ed), Human Rights in International Law: Legal and Policy Issues (Oxford: Oxford University Press). FALK,R (1993), 'The Making of Global Citizenship', in Brecher, J, Childs, J, and Cutler, J (eds), Global Visions: Beyond the New World Order (Cambridge, Mass.: South End Press). FRANCK, T (1999), The Empowered Selj Law and Society in the Age of Individualism (Oxford: Oxford University Press). G ~ u s sR, (2001), History and Illusion in Politics (Cambridge: Cambridge University Press).
GRAY,C (1987), Judicial Remedies in International Law (Oxford: Clarendon Press). HIGGINS, R (1994), Problems and Process: International Law and How We Use It (Oxford: Oxford University Press). W (1913), 'Fundamental Legal HOHFELD, Conceptions as Applied to Iudicial Reasoning', 23 Yale LJ 16.
INTERNATIONAL LAW COMMISSION (2001), Articles on Responsibility of States for Internationally Wrongful Acts, 53rd Session, UN Doc A/CN.4/L.602/Rev.1, 26 July 2001, available at www.un.org/ lawlilc. KLABBERS, J (1998), 'Presumptive Personality: The European Union in International Law', in Koskenniemi, M (ed), International Law Aspects of the European Union (The Hague: Kluwer). KNOP,K (1993), 'Re/statements: Feminism and State Sovereignty in International Law', 3 Transnational and Contemporary Legal Problems 293.
Diversify and Self-Determi-(2002), nation in International Law (Cambridge: Cambridge University Press). KOSKENNIEMI, M (1989), From Apology to Utopia: The Structure oflnternational Legal Argument (Helsinki: Finnish Lawyers' Publishing Co).
-(1991), 'The
Future of Statehood', 32
Harvard ILJ 397. KOSTAKOPOULOU, D (2002), 'Floating Sovereignty: A Pathology or Necessary Means of State Evolution', 22 Ox JLS 135. LAM, MC (2000), At the Edge of the State: Indigenous Peoples and Self-Determination (Ardsley, I WTransnational Publishers). LAUTERPACHT, H (1950), International Law and Human Rights (London: Stevens). LOWE,V (2005), ' "Clear and Present Danger": Responses to Terrorism', 54 ICLQ 185. MC~ORQUODALE, R (1994), 'Self-
Non-State Actors and International Law THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM
Determination: A Human Rights Approach', 43 ICLQ 857.
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'Human Rights and Global Business', in Bottomley, S and Kinley, D
OTTO, D (1997), 'Rethinking Universals: Opening Transformative Possibilities in International Human Rights Law', 18 Aust YBlL 1.
(eds), Commercial Law and Human Rights
-(lYYY), 'A Post-Beijing Reflection on
(Aldershot: Ashgate). -(2004), 'An Inclusive International Legal System' ,17 Leiden JIL 477.
the Limitations and Potential of Human Rights Discourse for Women', in Askin, K and Koenig, D (eds), Women and International Human Rights Law, vol 1 (Ardsley, NY: Transnational Publishers).
-(2002),
-and LA FORGIA,R (2001), 'Taking off the Blindfolds: Torture by Non-State Actors', 1 HRLR 189. MCGOLDRICK, D (2004), From '9-11' to the 'Iraq War 2003': International Law in an Age of Complexity (Oxford: Hart Publishing).
S (2000), The Riddle of all ConstituMARKS, tions: International Law, Democracy and the Critique of Ideology (Oxford: Oxford University Press). MENON,PK (1992), 'The International Personality of Individuals in International Law: A Broadening of the Traditional Doctrine', 1 J of Transnt'l Law and Policy 151. MOTALA,A (2002), 'Non-Governmental Organisations in the African System', in Evans, M and Murray, R (eds), The African Charter on Human and Peoples' Rights (Cambridge: Cambridge University Press). MUCHLINSKI, P (1999), Multinational Enterprises and the Law (London: Blackwell). NIJMAN,J (2004), The Concept of International Legal Personality (The Hague: TMC Asser Press). NOWAK,M (l999), 'Human Rights "Conditionality" in Relation to Entry to, and Full Participation in, the EU', in Alston, P (ed), The EU and Human Rights (Oxford: Oxford University Press). OPPENHEIM, L (1905), International Law, vol 1 (London: Longmans). ORAKHELASHVILI, A (2001), 'The Position of the Individual in International Law', 31 California Western ILJ 24 1.
PACE,W and THIEROFF, M (1999), 'Participation of Non-Governmental Organisations', in Lee, R (ed), The International Criminal Court (The Hague: Kluwer). PROVOST, R (2002), International Human Rights and Humanitarian Law (Cambridge: Cambridge University Press).
J (2001), AccountRATNER, S and ABRAMS, ability for Human Rights Attrocities in International Law, 2nd edn (Oxford: Oxford University Press). REDFERN, A, HUNTER, M, BACKABY, N, and PARTASIDES,C (2004), Intenrational Commercial Arbitration, 4th edn (London: Sweet & Maxwell). RAJAGOPAL, B (2003), International Law from Below (Cambridge: Cambridge University Press). REISMAN,M (1990), 'Sovereignty and Human Rights in Contemporary International Law', 84 AJIL 866. SANDS,P (2005), Lawless World: America and the Making and Breaking of Global Rules (London: Penguin). SCELLE,G (1932), Prkcis de droit des eens (Paris: Recueil Sirey). SCHABAS,W (2004), Introduction to the International Criminal Court, 2nd edn (Cambridge: Cambridge University Press). SCHERMERS, H (1999), 'Acceptance of International Supervision of Human Rights', 12 Leiden JIL 821. SCHREUER, C (1993), 'The Waning of the Sovereign State: Towards a New
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Paradigm for International Law', 4 EJIL 447.
T E S ~ NF, (19921, 'The Kantian Theory of International Law', 92 Col LR 53.
SHELTON, D (1994), 'The Participation of Nongovernmental Organizations in International Judicial Proceedings', 88 AJlL611.
VAN BOVEN,T (1990), 'The Role of NonGovernmental Organizations in International Human Rights Standard-Setting: A Prerequisite for Democracy', 20 California Western IL] 207.
-(1999), Remedies in International Human Rights Law (Oxford: Oxford University Press).
M (1997), 'Power and Justice SORNARAJAH, in Foreign Investment Arbitration', 14 J of Internt'l Arbitration 103. STEINER,H and ALSTON,P (2000), International Human Rights in Context, 2nd edn (Oxford: Oxford University Press).
VAZQUEZ,C (1992), 'Treaty-Based Rights and Remedies of Individuals', 92 Col LR 1082. WARBRICK,C (2004), 'The European Response to Terrorism in an Age of Human Rights', 15 EJIL 989. YOUNG,IM (2000), Inclusion and Democracy (Oxford: Oxford University Press).
FURTHER READING It is in the nature of the topic that the vast amount of relevant literature in this area is found in articles and book chapters many of which are referred to in the text and listed above. The only publications of particular note are: ALSTON,P (2005), Non-State Actors and Human Rights (Oxford: Oxford University Press). NBRGAARD, C (1962), The Position of the Individual in International Law (Copenhagen: Munksgaard).
Non-State Actors and International Law (a journal published since 2001 by Brill Publishers).
NONGOVERNMENTAL ORGANIZATIONS AND INTERNATIONAL LAW By Steve Charnovitz* Nongovernmental organizations (NGOs) have exerted a profound influence on the scope and dictates of international law. NGOs have fostered treaties, promoted the creation of new international organizations (IOs), and lobbied in national capitals to gain consent to stronger international rules. Adecade ago, Antonio Donini, writing about the United Nations, declared that "the Temple of States would be a rather dull place without nongovernmental organisations."' His observation was apt and is suggestive of a more general thesis: had NGOs never existed, international law would have a less vital role in human progress. Often it has been crusading NGOs that led the way for states to see the international dimension ofwhat was previously regarded as a purely domestic matter. As new issues arose in international affairs, interested NGOs formed federations or networks with organizations in different countries. This transnationalism has served as a source of strength for NGOs in their various interactions with governments. NGOs act as a solvent against the strictures of sovereignty. The contribution of NGOs to the vibrancy of international law is a puzzle because, doctrinally, international law is understood to be a product of state positivism. The key to the puzzle lies in the nature of NGOs. Like the state, the N G O is composed of individuals, but unlike the state, the N G O enjoys a relationship with the individual that is voluntary. Individuals join and support an N G O out ofcommitment to its purpose. That purpose plus organization gives NGOs whatever "authority" they have, and it will be moral authority rather than legal authority. The self-actuated nature of NGOs distinguishes them from typical IOs, whose mandates are agreed to and limited by states. NGOs do not gain their influence from delegation by states. Rather, whatever influence they have is achieved through the attractiveness of their ideas and values. No N G O is guaranteed influence, not even the most venerable ofNGOs, the Red Cross movement. Influence must constantly be earned. NGOs can change the behavior of states, but very often NGOs fail to do so.' Measuring N G O success has become more complicated because for many important issues, competing NGOs have been positioned on all sides of any debate. Years ago, the most involved NGOs were reliable advocates of a stronger world public order. Today, overwhelming N G O support for the international rule of law can no longer be assumed. NGOs follow their own stars. Although NGOs have received greater attention in recent years by scholars of international law and international relations, the field of N G O legal studies is hardly new. In the first volume * O f the Board of Editors.The author thanks JeffreyDunoff, Hilary French, Menno Kamminga, Karsten Nowrot, Christopher D . Stone, and Urs Thomas for helpful comments. The author also thanks Christiane Conrad, Joseph Johnson, Antonia Rahneva, Jenn Ritter, and Isabelle van Damme for research and translation assistance. ' Antonio Donini, The Bureaucracy and the Free Spirits:Stagnation and Innovation in the Relationship Between the U N and NGOs, 16 THIRDWORLD Q. 42 1 (1995). See Russel Lawrence Barsh & Nadia Khattak, Non-governmental Organisations in Global Governance: Great Expectations, Inconchive Results, in JUSTICE PENDING: INDIGENOUS PEOPLES AND OTHER GOOD CAUSES. ESSAYS IN HONOUROF ERICA-IRENE DAES15, 23-26 (Gudmundur Alfredsson & Maria Stavropoulou eds., 2002) (noting a lack of data for demonstrating N G O effectiveness).
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of this Journal, in a discussion of "co-operation between nations in the interests of humanity and civilization," Simeon E. Baldwin observed that we shall commonly find that the initiative has been found in individual action, prompted by considerations sometimes commercial, sometimes scientific or ~hilosophic,sometimes altruistic. So, and for similar reasons, it has often been found tha; the p;blic congress of moment to the world has been the immediate consequence of a private c ~ n g r e s s . ~ The appendix to Baldwin's article contains a ten-page list of official governmental conferences held in the period between 1826 and 1907, followed by atwelve-page list of "international congresses, conferences or associations of the past century, composed of private individuals."* The private conferences are categorized into thirty-one topics. In presenting this catalog of private international causes, Baldwin invited international law scholars to be attentive to the general phenomenon of groups of individuals working to influence intergovernmental policymaking. T o be sure, Baldwin was not the only legal scholar ofhis time to reflect upon the blossoming of private transnational associations. In 1908 Wilhelm Kaufmann pointed to three possible purposes of international regulation ofnonstate international association^:^ (1) to preserve the international general interest; (2) to effectuate the formation and functioning of nonstate international associations; and (3) to ensure that a single state "cannot retard and hinder through state acts or state norms the existence and activity within its competence of the nonstate international association."' In 191 1 Elihu Root called attention to the "great number and variety of international societies for specific purposes" and concluded: Most of them are not consciously endeavoring to develop international law, but they are building up customs of private international action. They are establishing precedents, formulating rules for their own guidance, many of them pressing for uniformity of national legislation and many of them urging treaties and conventions for the furtherance of their common purposes.7
An appreciation of Baldwin, Kaufmann, and Root is an appropriate way to begin an analytical survey of international N G O activism spanning the past one hundred years. Earlier than others, Baldwin saw how new modes of transnational "individual action" could change the behavior of states. As the public congresses matured into IOs, the private groups developed more direct forms of advocacy than holding their own assemblies and drafting resolutions for governments. Instead, they found ways to attach themselves to 1 0 s and to be present at international negotiations in order to lobby for manifold causes. In seeking to map out the most salient issues about NGOs and international law, this article forms an integral part of the overview of international law at the dawn of the twenty-first century written in celebration of the centennial of this Journal. Some of the issues to be addressed are old, such as the legal status ofNGOs. Others are comparatively new, such as whether N G O lobbying in intergovernmental forums is democratically legitimate. The article draws from the Simeon E. Baldwin, The International Congresses and Confmnces of the Last Centuty as Forces Working Toward the Solidarity of the Workf, 1 AJIL 565, 576 (1907). In 1907 Baldwin was the chief justice of the Connecticut Supreme Court of Errors, and he later sewed as governor of Connecticut. Id. at 808, 817. He calls the study of such meetings a "new field." Id. at 817-18 n.8. Wilhelm Kaufmann, Die modrrncn nicht-staatlichen internationalen Verbandr und Kongresse und dac internationak Recht, 2 ZEITSCHRIFT ~ iVOLKERRECHT j ~ UND BUNDESSTAATSRECHT419,434-35 (1908). 'Id. (trans. by author). Kaufmann takes note of Baldwin's article. Id. at 423. Elihu Root, The Function ofPriuate Cod$cation in InternationalLw, 5 AJIL 577, 583 (191 1). In an earlier study, Root had observed "an indefinite and almost mysterious influence exercised by the general opinion of the world regarding the nation's character and conduct." Elihu Root, The Sanction ofIntmationa1 Law, 2 AJIL 45 1 , 455 (1908).It may be that Root saw in "internationalsocieties"apartial explanationforthe "mysteriousinfluence."
'
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copious scholarship on NGOs to show early expositions of some of the guiding ideas in contemporary debate. This attention to history may serve to buttress future writers against one of the maladies of NGO-related scholarship, which is a tendency to presume novelty in practices that have been going on for decades.
One fairly new aspect ofNGOs is their geographic range, Thirty years ago, many countries lacked significant N G O activity. The range of activity was even smaller 145 years ago when Francis Lieber wrote about the role of associations and found that "all-pervading associative spirit" only in England and America.' Today, the associative spirit is nearly universal. This article proceeds in five parts: Part I examines issues regarding the identity ofNGOs and then catalogs the ways that state practice incorporates NGOs into authoritative decision making. Part I1 looks at the legal status ofNGOs in international law. Part I11 considers how NGOs have transformed international law over the past century. Part IV dives into the ongoing debate about the democratic legitimacy of N G O participation and seeks to clarify the conceptual underpinnings of the legitimacy of such participation. Part V asks whether intergovernmental decision makers have a duty to consult NGOs. Part V concludes with some thoughts on future challenges. The article focuseson N G O advocacy activities aimed at influencing international relations. For reasons of space, the operational activities of NGOs as contractors and as direct providers of goods and services are not examined. Also excluded is consideration of the dictates of international agreements regarding the participation of NGOs within national political, administrative, and iudicial processes.' In addition, the article does not cover market-based efforts such as international standards, labeling, and corporate codes of conduct.Io
I.
W H O NGOS ARE AND WHATTHEY DO
The Identi9 ofNGOs The NGOs that are the subject of this article are groups of persons or of societies, freely created by private initiative, that pursue an interest in matters that cross or transcend national borders and are not profit seeking." Such NGOs are usually international in the sense ofdrawing members from more than one country. Although profit-seeking business entities are not NGOs, associations of business entities can be, such as the International Chamber of Commerce.I2 FRANCIS LIEBER, ON C M L LIBERTY AND SELF-GOVERNMENT129 (enlarged ed. 1859). For example, the first treaty promulgated by the International Labour Organization (ILO), the Hours of Work (Industry) Convention, committed governments to engage in "consultation" with worker and employer organizations whenever governments sought to provide regulatory exceptions. ILO, Hours of Work (Industry) Convention, No. 1, Nov. 28,1919, Art. 6.2,l INTERNATIONAL LABOUR ORGANISATION, INTERNATIONALLABOUR CONVENTIONS AND RECOMMENDATIONS1 (1996). available at
. l o See, e.g., Ralph G. Steinhardt, Cotporate Responsibility and the International Law ofHuman Rights: The New "Lex Mercatoria," in NON-STATEACTORS AND HUMAN RIGHTS 177, 177-87 (Philip Alston ed., 2005). " This definition draws from Article 2 of Professor Suzanne Bastid's resolution cited infia note 58, which sought to establish an international status of associations. I Z Unlike other analysts, I do not reserve the term "NGO" for organizations that pursue a "public interest," and I do not exclude from the definition ofan N G O the labor unions, professional associations, or other organizations that pursue a "single interest" or a "special interest." In my view, it 1s not always easy to distinguish a public interest fromaspecial interest or apublic benefit from a mutual benefit. Furthermore, a policy organization typically pursues both a membership interest and the organization's conception of the public interest.
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Everything about nongovernmental organizations is contested, including the meaning of the term. In his 1963 treatise on NGOs, J. J. Lador-Lederer observed that the semantic negation neglects the most significant part of the organizations, which is that their strength comes from "their capacity at continuous existence and de~elopment."'~ Recently, Philip Alston took note of the widespread use of "nongovernmental organization" and "nonstate actor," and remarked that the insistence upon defining actors "in terms of what they are not combines impeccable purism in terms of traditional international legal analysis with an unparalleled capacity to marginalize a significant part of the international human rights regime."14 During the past two decades, the term "civil society organization" has gained popularity in some circles as an alternative to "NG0."15 Recognizing the longtime usage of the N G O acronym, some commentators have suggested keeping it, but changing its meaning to "Necessary to Governance Organization."" That clever wordplay has not caught on. The U N system continues to use the term "NGO," and the chief reason for doing so may be because Article 7 1of the U N Charter states, "The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence."" The Charter, however, does not define NGO. Although commentators sometimes suggest that the term "nongovernmental organization" originated during the 1930s or in 1945," it actually goes back to just after World War I. In his 1919 book o n international cooperation, Dwight W. Morrow contrasted "non-governmental organizations" with organizations composed of sovereign states.I9 In 1920 Sophy Sanger employed the term "non-government organisation" in her account of how such organizations had not been able to participate in 1906 in the first multilateral negotiations to conclude labor treaties." The label "nongovernmental organization" was apparently not used in the League of Nations. Instead, the NGOs of that era were called unofficial, nonpublic, voluntary, or private organizations. By 1943, ifnot earlier, scholars ofinternational law had begun to use "non-governmental ~ r ~ a n i z a t i o n . " ~ ' Although NGOs are by definition nongovernmental, N G O membership can cover a broader range than just private individuals. A leading example is the IUCNWorld Conservation l 3 J. J. LADOR-LEDERER, INTERNATIONAL NON-GOVERNMENTAL ORGANIZATIONS AND ECONOMIC ENTITIES:A STUDY IN AUTONOMOUS ORGANIZATION AND IUS GENTIUM 13 (1963).He suggests an alternative term, "lnternarional Autonomous Entities." Id. l 4 Philip Alston, The 'Not-a-Cat'Syndrome: Can the InternationalHuman Rights RegimeAccommod?teNon-State Actors? in NON-STATEACTORS AND HUMANRIGHTS, supra note 10,at 3,3. l 5 The term "civil society" is more than a matter of nomenclature because some analysts use that term to encompass everything that is not government or business. Thus, religions, political parties, movements, and community groups are part of civil society, even if they are not considered NGOs. j 6 Kerstin Martens, Mirsion Impossiblc?DefiningNongovernmmtal Organizations, 13 VOLUYTAS: INT'L J.VOLUNTARY & NONPROFIT ORGS. 271,277(2002).Martens points out that in some languages, nongovernmental" is translated as "against the government" or "antigovernment." Id. " UN Charter Art. 71. '' For example, Jeremy Rabkin has contended that the term "nongovernmental organization" is "a Stalinist concept" originating in a defense by the Soviet Union of its delegation to the ILO. Jeremy Rabkin, Why the Left Dominates N G O Advocacy Networks, written version of paper delivered at conference entitled "Nongovernmental Organizations: The Growing Power of an Unelected Few," American Enterprise Institute (June 11, 2003),at . '"WIGHT W . MORROW, THE SOCIETYOF FREESTATS 81 (1919).Morrow was later to serve as a U.S. ambassador and US. senator. 20 Sophy Sanger, Practical Problems of fntemational Labour Legislation, in LABOURAS AN INTERNATIONAL PROBLEM135, 136 (E. John Solano ed., 1920).Sanger was one of the drafters of the provisions on labor in the Treaty of Versailles. 2 ' SeeHarold D. Lasswell & Myres S. McDougal, Legal Education andpublic Policy: Proj&sional Training in the PublicInterest, 52 YALE L.J. 203,221-22 (1943)(using that term).
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Union, with its variegated membership of 82 states, 1 1 1 governmental agencies, and over 800 NGOs. Some NGOs, such as Parliamentarians for Global Action, are composed of individuals who are public officials. Other NGOs, such as United Cities and Local Governments, are composed of subnational governments. That organization harks back to 1913, and today has mem-
bers in more than 100 countries. The traditional distinction between an N G O and an I 0 is that 1 0 s are established by intergovernmental agreements and NGOs via cooperation of individuals. That distinction holds even when 1 0 s provide formal institutional roles for NGOs. For example, the treaties establishing the International Labour Organization (ILO) and the World Tourism Organization provide for nongovernmental roles in organizational governance. So do the charters of the Joint United Nations Programme on HIVIAIDS (UNAIDS) and the Arctic Council.22
NGO Functions in International Law The remainder of part I provides an overview of N G O functions to give context for the ensuing analysisof how NGOs have transformed international law. NGOs contribute to the development, interpretation, judicial application, and enforcement of international law.23 NGOs may be most prolific when new fields of law are initiated or new treaties drafted. An early example concerns the rights of women. In 1928, after women's groups journeyed to the sixth Pan-American Conference, the governments agreed to hold a plenary session to hear the women's representatives, and accepted their proposal to create the Inter-American Commission of Women.'* Another major milestone occurred when NGOs advanced language on human rights for the U N Charter and then aided the diplomats drafting the Universal Declaration of Human Rights.25Advocacy by NGOs and indigenous groups has been similarly instrumental in achieving new international protections for indigenous peoples. In recent years, networks of NGOs worked to inspirit negotiations for the International Criminal Another function engaged in by NGOs is the interpretation ofinternational law. For example, NGOs helped to develop the "Siracusa Principles" in 1984, on the meaning and scope of the derogation and limitation provisions of the International Covenant on Civil and Political Righw2' Theodor Meron has noted that by championing a broad construction of the Fourth
22 On the UNAlDS Programme Coordinating Board, there are fiveNGOs, including associations ofpeople living with HIVIAIDS. The Arctic Council includes six permanent participants from organizations of Arctic indigenous persons. 23 See LUNG-CHUCHEN, AN INTRODUCTION TO CONTEMPORARY INTERNATIONAL LAW, ch. 4 (2d ed. 2000) (giving examples of N G O functional activities in intelligence, promoting, prescribing, invoking, applying, terminating, and appraising). '*James Brown Scott, Inter-AmPriran Commission of Women, 24 AJIL 757,759-60 (1930); George A. Finch, James Brown Scott, 1866-1943,38 AJIL 183,210 (1944) (noting Scott's own role in getting the women heard). lS See, e.5, ANTONIO CASSESE,HUMAN RIGHTS IN A CHANGINGWORLD 173 (1990); WILLIAMKOREY, NGOS AND THE UNIVERSALDECLARATION OF HUMANRIGHTS: A CURIOUS GRAPEVINE29-50 (1998); PAUL GORDON LAUREN, THE EVOLUTIONOF ~NTERNATIONAL HUMAN RIGHTS: VISIONSSEEN 183, 188-89 (1998): W. Michael Reisman, Private International DecLzration Initiatives, in LA DECLARATION UNIVERSELLE DES DROITS DE L'HOMME1948-98, at 79 (1998); Louis B. Sohn, The United Nations at F z h : How American International Lawyen Preparedj%r the Sun Francisco Bill of Rights, 89 AJIL 540 (1995). 26 See, e.g, Mahnoush H. Arsanjani, The RorneStanrteoftheIntmzatMm[CrimindCourr,93 AJIL22,23-39 (1999). ''Theo van Boven, TheRokofNon-governmmral Organizationsin InternationalHuman Rightr Standard-Setting: A PrerequisifeofDemocrary,20 CAL. W. INT'L L.J. 207,219-20 (1990). The NGOs were the International Commission ofJurists, the International Association of Penal Law, and the Urban Morgan Institute of Human Rights.
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Geneva Convention, the International Committee ofthe Red Cross (ICRC) clarified that rape is a crime under international humanitarian law.28 NGOs seek to contribute to international adjudication by making friend-of-the-court submissions to tribunals. Typically, an N G O initiates action by requesting leave from a court to submit a brief." In an authoritative study of N G O participation, Dinah Shelton found that major international tribunals, except the International Court of Justice (ICJ), had developed procedures to enable NGOs to submit information or statements on pending cases.30Since the publication ofShelton's study in 1994,the trends she documented have continued apace." For example, organs of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda have requested amicus submissions in some cases and received them from individual jurists and NGOS.~'O n the other hand, NGOs have not yet sought to submit an amicus brief to the International Tribunal for the Law of the Sea.33 Although the ICJ remains closed to N G O participation, a useful step toward greater openness was taken in 2004.34The ICJ adopted Practice Direction XII, which provides that, in an advisory proceeding, when an international N G O submits astatement or document on its own initiative, it will be placed in a designated location in the Peace Palace.35The paper will not be considered part of the case file but will be treated as a readily available publication and may be referred to by states and 1 0 s in the same manner as publications in the public domain. Over the past decade, amicus curiae briefs have been admitted into trade and investment adjudication. Although no explicit provision in the Agreement Establishing the World Trade Organization (WTO)permits amicus briefs, the AppellateBody ruled in 1998that W T O panels had discretion to accept unsolicited briefs, and it ruled in 2000 that it could accept such briefs.36 That development appeared to influence investor-state arbitration under the North American Free Trade Agreement (NAFTA) where, to the surprise of many observers, in 2001 the tribunal in Methanex held that it had the power to accept written amicus submission^.^' Thereafter, the intergovernmental NAFTAFree Trade Commission issued a statement officially
*'
Theodor Meron, Rape as a Crime Under InternationalHumanitarian Law, 8 7 AJlL 424,426 (1993).
'' Ruth Mackenzie, The Amicus Curiae in International Courts: Toward Common Procedural Approaches? in CIVIL SOCIETY, INTERNATIONAL COURTS AND COMPLIANCE BOD~ES 295,302-04 (Tullio Treves et al. eds., 2005) (discussing filtering mechanisms). 30 Dinah Shelton, The Participation ofNongoummental Organizations in InternationalJudicial Proceedings, 88 AJlL 61 1,641-42 (1994). Her study dealt extensively with the Inter-American Court of Human Rights and the European Court of Human Rights. 3 L See, e.g., Hew6 Ascensio, L'unicus curiae devant l ajuridictions internationales, 105 REWE GENERALE DE DROIT INTERNATIONAL PUBLIC [RGDIP] 897 (2001). 32 Christine Chinkin & Ruth Mackenzie, Intrrgovernmental Organizations as "Friend of the Court, "in INTERNATIONAL ORGAN~ZATIONS AND INTERNATIONAL DISPUTESETTLEMENT:TRENDS AND PROSPECTS 135, 148-49 (Laurence Boisson de Chazournes, Cesare P. R. Romano, & Ruth Mackenzie eds., 2002); Patrizia De in CIVIL SOCICesari, NGOsandtheActiuitiesofthe Ad Hoc Criminal TribunalsjrFormer Y~~oshuiaandRwanda, E n , INTERNATIONAL COURTS AND COMPLIANCEBODIES,supra note 29, at 113. 33 Philippe Gautier, NGOs and Law of the Sea Disputes, in CIVIL SOCIETY, INTERNATIONAL COURTSAND COMPLIANCE BODIES,supra note 29, at 233, 242. 34 Lance Bartholomeusz, The Amicus Curiae w r e International Coum and Tribunal;,5 NON-STATEACTORS & INT'LL. 209,212 (2005) ("Although the Court was initially open to N G O participation in its advisory juiidiction, in 1971 it locked the door, let some materials slip under the door in 1996, and then since 2004 left it slightly ajar."). 3 5 ICJ, Practice Direction XI1 (July 30, 2004), available at . 36 Laurence Boisson de Chazournes & Makane MoBe Mbengue, The Amici Curiae andthe W T O Dispute Sett h e n t System: The Doors Are Open, 2 L. & PRAC. INT'L CTS. & TRIBUNALS205 (2003). 37 Methanex Corp. and United States, Decision on Petitions from Third Persons to Intervene as "Amici Curiae," paras. 33,53 (NAFTA Ch. 11 Arb. Trib. Jan. 15,2001), auaihbk at
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recommending a procedure that investor-state tribunals could adopt to guide such private submi~sions.~' When the Methanex tribunal issued its final award in August 2005, the decision contained a reference to the "carefully reasoned Amicus submission."3~ollowingMethanex, two other investment arbitration tribunals ruled that they had the power to accept amicus briefs.*' These developments are significant because amicus submissions in investment arbitration were u n k n o w n before 2001.
Despite the initial fanfare regarding N G O opportunities at the WTO, neither the Appellate Body nor the panels have made substantive use of the information in amicus curiae submiss i o n ~ .The ~ ' Appellate Body's early procedural decisions continue to be criticized by many governments as ultra vires, and consequently, any N G O briefs accepted by W T O panels and the Appellate Body are kept in juristic quarantine away from the proceeding. In some instances, panels have exercised their discretion not to accept an N G O brief. For example, in the So@ood Lumber litigation, a W T O panel rejected a brief from an environmental N G O "in light of the ~ absence of consensus among W T O Members on the question of how to treat a m i submission~."~~ In contrast to their participation as amici, the ability of NGOs to initiate cases is less extensive. One tribunal that has been open to NGOs is the African Commission on Human and Peoples' Rights, which has allowed states, individuals, and NGOs with observer status to submit communications alleging a violation of the African Charter.43 The European Court of Human Rights permits an NGO to bring a case if the N G O itself claims to be a victim. Other opportunities present themselves in international administrative entities that permit NGOs to bring complaints. For example, the World Bank Inspection Panel entertains requests for inspection from an organization, association, society, or other grouping of two or more individuals that believes it is likely to be adversely affected as a result of the Bank's violation of its own policies and procedures.44 NGOs are now often engaged in the review and promotion of state compliance with international obligations. Oscar Schachter, a keen observer, detected this budding development in 1960,45 and in the following decades, the N G O role flowered in the monitoring of human rights, humanitarian, and environmental law.46 In their 1995 book The New Sovereignry, '"can D. Murphy, Contemporary Practice of the United States, 98 AJIL 841 (2004). 'Wethanex, Final Awardon Jurisdiction andMerits, para. 27 (NAFTACh. 11 Arb. Trib. Aug. 3,2005),availabk at . 40 Bartholomeusz,supra note 34, at 265-72,285. One was a case under NAFTA using UNCITRAL rules (the UPS case), and the other a case under a bilateral investment treaty between France and Argentina using lCSID rules (the Agwu argentinas case). 4 1 See Jeffrey L. Dunoff, Border Patrol at the World Trade Organiuztion, 1998 Y.B. INT'L ENWL. L. 20,22-23 (predicting that the openness to amicus briefs would be illusory). 4 2 United States-Investigation of the International Trade Commission in Softwood Lumber from Canada, Doc. WTIDS277/R, para. 7.10 11.75 (adopted Apr. 26,2004). 43 Nsongurua J. Udombana, So Far, So Fair The Local Remedies Ruk in the Jurisprudence of the Afican Commission on Human and Peopks' Rights, 97 AJIL 1 , 2 (2003); Dean Zagorac, International Courts and Compliance in CIVILSOCIETY,INTERNATIONALCOURTSAND COMPLIANCE Bodies: TheEuperienceofArnne~t~International, BODIES,supra note 29, at 11, 34-37. 44 Ellen Hey, The World Bank Inspection Panel: Toward the Recognition of a New Legally Rekvant Relationship to International Law. 2 HOFSTRAL. & POL'YSWP. 61. 66 (1997). . . Edith Brown Weiss has sueeested that the Inspection Panel is part of "growingeffortsro provide meansrocivil sociery to hold international intergovernmental organizations accountablc for [heir action,." Edith Brown Weiss, Inookrn- Srurc Rejponsrbrliry rn the Twmty-fir11 .C&nrry. 96 AJIL 798,815 n.119 (2002). 4 5 Rbk of Non-governmental Groups in the Development of International Law. 54 ASII. PROC. 194, 220, 221 (1960) (comments of Oscar Schachter). 46 See, e.g., David P. Forsythe, Who Guard the Guardians: ThirdParties and the Law ofAnned Conflict, 70 AJIL 41,44-46 (1976) (discussingthe formal role of the ICRC); Harold K. Jacobson & Edith Brown Weiss, Arsessing
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Abrarn Chayes and Antonia Chayes devoted a chapter to the impact of NGOs on treaty compliance, and pointed out that, "[iln a real sense, [NGOs] supply the personnel and resources for managing compliance that states have become increasingly reluctant to provide."47In the decade since that book was published, the NGO role has continued to expand. For example, the parties to the Aarhus Convention agreed to allow NGOs with observer status to nominate candidates for the Convention's Compliance C~mrnittee.~' NGOs can also play an important role within a domestic political system in pressing the government to meet its obligations under a ratified treaty. The last N G O function to be noted is assistance to collective enforcement efforts. For example, in a 1992 resolution regarding the former Yugoslavia, the UN Security Council called on states "and, as appropriate, international humanitarian organizations to collate substantiated information" relating to violations of humanitarian law.49 In a 2003 resolution regarding Sierra Leone, the Security Council called on "States, international organizations and non-governmental organizations to continue to support the National Recovery Strategy of the Government of Sierra Le~ne."~'
The analysis in this part examines the legal status of NGOs in two senses-their legal personality and the special capacity they can gain to take part in intergovernmental decision making. Regarding personality, this analysis puts aside the doctrinal question often posed about individuals and NGOs--namely, whether they are "subjects" of international law. As Edwin Borchard wrote in this Journal, "Whether the individual is or is not a subject of international law is a matter of concepts, and hardly justifies the metaphysical discussion the question has engendered."51Decades later, Rosalyn Higgins reached aparallel conclusion, "that it is not particularly helpful, either intellectually or operationally, to rely on the subject-object dichotomy that runs through so much of the writings."52
NGO Personality Legal personality is a key factor in determining the rights and immunities of an N G O and its standing before courts. In general, an N G O enjoys legal personality only in municipal law, not in international law.53Yet because NGOs so often operate in more than one country, they face potential problems of being subject to conflicting laws and of inability to carry their legal the RecordandDesigning Strategies to Engage Countries, in ENGAGING COUNTRIES:STRENGTHENING COMPLIANCE WITH INTERNATIONALENV~RONMENTAL ACCORDS51 1,527,529,533 (Edith Brown Weiss &Harold K. Jacobson eds., 1998);Maya Prasad, The RolcofNon-governmental Organizationsin theNew UnitedNations Pmceduresfor Human Rights Comphints, 5 DENV. J . INT'L L. & POL'Y 441 (1975). 47 ABRAM CHAYE.5 & ANTONlA HANDLER CHAYES, THENEWSOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS, ch. 11, at 250,251 (1995). 48 First Meeting of the Parties to the Aarhus Convention, Decision 117, UN Doc. ECEIMP.PPI2IAdd.8, annex, para. 4 (2004). NGOs can also submit communications alleging noncompliance by a party to the Convention. See Report of the Compliance Committee, UN Doc. ECE/MP.PPl2005/13, paras. 24-27. The Aarhus Convention is the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, June 25, 1998, 38 ILM 517 (1999). 49 SC Res. 771, para. 5 (Aug. 13, 1992). 50 SC Res. 1470, para. 8 (Mar. 28, 2003). Edwin M. Borchard, The Access oflndividualr to International Coum, 24 AJIL 359,364 (1930). 52 Rosalyn Higgins, C o n c e p ~ Thinking l About the Individual in International Law, in INTERNATIONAL IAW: A CONTEMPORARY PERSPECTIVE476,480 (Richard Falk, Friedrich Kratochwil, & Saul H. Mendlovia eds., 1985). 53 See generally Kerstin Martens, Examining the (Non-)Status ofNGOs in International Law, IND. 1. GLOBAL LEGALSTUD., Summer 2003, at 1; Karsten Nowrot, Legal Consequences of Globalization: The Status ~ f N o n - ~ o v ernmcntal Organktionr Un&r International Law, 6 IND. J. GLOBALLEGALSTUD. 579 (1999).
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status from one country to another.54 Aware that this situation could prove problematic for internationally active NGOs, both the Institut de droit international (Institut) and the International Law Association began in 1910 to promote consideration of a convention to grant legal personality to international N G O S . Almost ~~ a century later, advocates have not made much progress toward that goal.56 T h e early efforts to develop international l a w o n NGO recognition w e r e a m b i t i o u s . In 1923, spearheaded by Nicholas Politis, the Institut adopted a draft Convention Relating to the Under that proposal, international associations Legal Position of International A~sociations.~' were required to register at a permanent commission with specified documentation. If one party nonetheless denied legal status to a registered association, the association could contest this action before the Permanent Court of International Justice. That proposed treaty did not gain any adherents, and governments showed the same lack of interest after another drafi convention authored by Suzanne Bastid was approved by the Institut in 1950.58In that proposal, states were to recognize an association on the basis of the standards in the convention without a prior requirement of registration within one party. Commenting on these efforts to concretize an international legal status for international associations, Wilfred Jenks observed in 1972 that "[wlhile the number, importance, and influence of international associations have continued to increase, the problem of their legal status has not become of such acuteness and urgency as to make a comprehensive solution of it impera t i ~ e . " ~Thirty-plus ' years later, the lack of an international legal status for NGOs remains a . . problem, but not an insuperable one. Transnational NGOs have learned how to maneuver without formal international personality. In some instances, the crucial role that an N G O plays has led governments to accord rights to it that are typically granted only to 10s. For example, the ICRC and the International Federation of Red Cross and Red Crescent Societies have signed headquarters agreements with numerous states that provide for certain privileges and i m m u n i t i e ~ . ~ ~ Over the years, the efforts to achieve an international legal personality for NGOs have exposed some unreolved tensions. O n the one hand, providing such recognition may help prevent interstate 54 This problem was recognized by the late nineteenth century. For example, Pasquale Fiore wrote that societies (which are "the result of freedom of association for a common interest") are granted rights by the sovereignty of a state, and thus that such societies "may not as of right exercise their functions in foreign countries." PASQUALE LAW CODIFIED AND ITS LEGALSANC~ON34-35 n.1 (Edwin M. Borchard trans., 1918). FIORE,INTERNATIONAL 5 5 1 UNION OF INTERNATIONALASSOCIATIONS, INTERNATIONALASSOCIA~ON STATUTESERIES,app. 4.1 (1988). This and the other documents noted here from the UIA Statute Series are available online at . The predecessor organization to the UIA was founded in 1907. 56 The one concrete achievement occurred in 1986 with the signing of the European Convention on the Recognition of Legal Personality of International NGOs. It requires parties to recognize "as of right" the legal personality and capacity acquired by an N G O in any of the parties. European Convention on the Recognition of the Legal Personaliry of International Non-governmental Organisations, Apr. 24,1986, Art. 2, ETS No. 124. The Convention has eight parties. 57 Institut de droit international, Draft Convention Relating to the Legal Position of International Associations (1923), reprintedin UNION OF INTERNATIONALASSOCIATIONS, supra note 55, app. 4.5 [hereinafter Draft Convention]; see James Brown Scott, The Inmtitute oflnternational Law, 1 7 AJIL 751,753-56 (1923). 58 Resolution adopted by the Institute of International Law at its 49th Session, reprintedin UNIONOF INTERsupra note 55, app. 4.8, andin 45 AJIL Supp. 15, 20 (1951). NATIONALASSOCIATIONS, 59 C. Wilfred Jenks, Multinationaf Entities in the Law ofNations, in TRANSNATIONAL LAW IN A CHANGING SOCIETI. ESSAYS IN HONOR OF PHILIPC. JESSUP 70,77 (Wolfgang Friedmann, Louis Henkin, & Oliver Lissiayn eds., 1972). 60 Menno T. Kamrninga, The Euoluing Status ofNGOs Under International Law: A Threat to the Inter-State Syst d i n NON-STATEACTORSAND HUMANRIGHTS,supra note 10, at 93,98 -99. In addition, the ICRC and the federation were granted obsewer status in the UN General Assembly in the early 1990s. Note that the ICRC claims to be an entity other than an I 0 or NGO. ICRC, DISCOVERTHE ICRC 6 (2005).
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conflicts and, in the words of the 1923 draft convention, may further "the general interest of the international community to encourage the development of non profit-making international ass~ciations."~' O n the other hand, states have worried that granting international recognition to NGOs may reduce governmental control over them, and NGOs have worried that such recognition might entail a loss of autonomy. With the increased attention to N G O (mis)behavior in recent years, anew treatywould more likely impose regulation on NGOs than facilitate freedom of asso~iation.~'
NGOs as Consultation Partners In the absence of international N G O law as such, Article 71 of the UN Charter has served de facto as a charter for N G O activities. The legal capacity of the N G O under Article 7 1 might be termed a consultation partner. Although Article 71 establishes consultative opportunities for the NGOs granted status by the UN Economic and Social Council (E~OSOC),an individual N G O does not have a treaty-based right to be consulted in a particular situation. Article 71, written in 1945, reflected established I 0 consultative practices regarding N G O S . The ~ ~ first treaty to provide for N G O input was the 1905 convention creating the International Institute of Agriculture. One of the duties of the institute was to [slubmit to the approval of the governments, if there is occasion for it, measures for the protection of the common interests of farmers and for the improvement of their condition, after having utilized all the necessary sources of information, such as the wishes expressed by international or other agricultural congresses or congresses of sciences applied to agriculture, agricultural societies, academies, learned bodies, etc."* Thus, the congresses and societies were designated as sources of information for intergovernmental decision making. When participating governments drafted the Covenant of the League ofNations in 1919, they included Article 25, which stated that "[tlhe Members of the League agree to encourage and promote the establishment and co-operation of duly authorised voluntary national Red Cross ~ r ~ a n i s a t i o n sThat . " ~ ~article was inserted at the suggestion of the League of Red Cross Societies, and led to extensive cooperation between the League of Nations and the Red Cross movement. By the early 1920s, active collaboration between the League of Nations and unofficial organizations was an established practice and would continue throughout the life of the League."" For example, the League of Nations spearheaded the creation of the International Relief Union, whose founding convention provided a "consultative capacity" for relief organizations " Draft Convention,
supra note 57, pmbl. SeeEmanuele Rebasti,Workshop Report, ALegal Status for NGOs incontemporary International Law?(Eur. Univ. Inst. Workshop Report, Nov. 2002), at (remarks of Pierre-Marie Dupuy). " RUTH B. RUSSELL (assisted by Jeannete E. Muther), A HISTORYOF THE UNITED NATIONSCHARTER 800-01 (1958) (stating that Articie 71 "formalized a normal practice under the League of Nations of consulting with interested nongovernmental organizations concerned with pertinent economic and social activities"). Of course, consultations with NGOs had declined in the period preceding 1945. Conventionon the International InstituteofAgriculture, June7,1905,Art. 9(f),35 Stat. 1918,l Bevans436. Unofficial international agricultural congresses had begun in 1878. 65 League of Nations Covenant Art. 25; Chandler P. Anderson, The International Red Cross Organization, 14 AJIL 210,214 (1920). &See, e.g., 29 INTERNATIONALLAW ASSOCIATION,CONFERENCEREPORT363-65 (1920) (remarks of Wyndham A. Bewes); Manley 0. Hudson, The First Confienrefor the CodijZcation oflnternational Law, 24 AJIL 447,45 1 (1930) (noting that organizationsofwomen sent representatives to the conference at The Hague and chat a conference committee devoted a session to hearing statements from the organizations). 62
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and other qualified organizations and called for "free co-operation" between the union and "other official or non-official ~r~anisations."~' The League of Red Cross Societies played an important role in drafting the convention and presenting it to governments.68 Just as the Red Cross societies in 1919 sought to gain a textual foothold in the League of
Nations Covenant, a rainbow of NGOs in 1745 sought to gain such a foothold in the UN Charter. The major commentaries on the Charter missG7the entrepreneurial role of the NGOs at the San Francisco Conference in lobbying for and securing Article 71 so as to endow themselves with an official status.70In view of the longtime pre- 1945 practice of a consultative role for NGOs in IOs, the legislating of Article 71 was more incremental than transformational. Nevertheless, Article 71 soon took on an importance far broader than its own text and, for that reason, the status attained by NGOs through Article 71 became a foundation stone for their efforts to strengthen international law. Even though Article 71 refers only to E C o s o C , a consultative role for NGOs gradually became an established practice throughout the U N sysArticle 71 was implemented comprehensively by ECOSOC in 1950 (the 1950 N G O Rule) in a resolution that was superseded by a new resolution in 1968, and then again in 1996 by the resolution now in place (the 1996 N G O Rule).72 Although many of these ECOSOC rules have remained constant, some have changed significantly. First, the 1950 N G O Rule required that an N G O be of"recognized standing andthat it "represent a substantial proportion of the organized persons within the particular field in which it operates."73 By contrast, the 1996 Rule dispenses with this two-part requirement. Now the N G O must "be of recognized standing within the particular field of its competence or of a representative ~haracter."'~ Second, the preference in the 1950 Rule for international, rather than national, NGOs has now been eliminated.75Third, the 1996 Rule adds a requirement 67 Convention and Statute Establishing an International Relief Union, July 12, 1927; Convention Art. 5(2), Statute Art. 1, 135 LNTS 248. The International Relief Union was the first I 0 to have a provision in its charter providing for a consultative capacity for NGOs. LYMANCROMWELL WHITE(assisted by Marie Ragonetti Zocca), INTERNATIONAL NON-GOVERNMENTAL ORGANIZATIONS:THEIRPURPOSES, METHODS,AND ACCOMPLISHMENTS 246-47 (1951). "Artick 71, in 2 THE CHARTEROF THE UNITEDNATIONS:A COMMENTARY 1069,1070 (Bruno Simma ed., 2d ed. 2002) (making no mention of the lobbying by NGOs at the conference); LELAND M. GOODRICH, EDVARD HAMBRO, &ANNE PATRICIA SIMONS, CHARTEROF THE UNITEDNATIONS:COMMENTARY AND DOCUMENTS 444 (3d & rev. ed. 1969) (mentioning the NGOs but not the active role they played). 70 See DemocraticProcesscs: The Non-govemmcntalOrganizations, 1951 ANN. REV. UN AFF. 165,182 (remarks IN DEMOCRAW. THE STORYOF U.S. CITIZEN of Waldo Chamberlin); DOROTHYB. ROBINS, EXPERIMENT ORGANIZATIONS IN FORGINGTHE CHARTER OF THE UNITEDNATIONS122-28 (1971) (noting the catdytic role of James T. Shotwell). Robins and Chamberlin were both present at the San Francisco Conference. S e e a h E. Suy, The Status of Obsewers in Internationai Organiultions, 160 RECUEILDES COURS 75, 102 (1978 11) (noting the pressure brought by the NGOs on the drafters of the Charter). 7 1 H. LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 2 4 - 2 6 , 6 5 6 4 (1950); Dianne Otto, Nongovernmental Organizations in the Unitcd Nations System: The Emerging Rok oflntemational Civil Society, 18 HUM.RTS Q. 107,127 (1996). For a survey of current UN practices by agency, see UN NON-GOVERNMENTAL LIAISON SERVICE,UN SYSTEM ENGAGEMENT WITH NGOS, CIVIL SOCIETY, THE PRIVATE SECTOR, AND OTHERACTORS: A COMPENDIUM (2005), availabk at . 7 2 Review of Consultative Arrangements with Non-governmental Organizations, ESC Res. 288 (X), para. 8 supra note 13, app. C, at 387 [hereinafter 1950 N G O Rule]; (Feb. 27, 1950), reprinted in LADOR-LEDERER, Arrangements for Consultation with Non-governmental Organizations, ESC Res. 1296 (XLIV) (May 23, 1968), available at <www.globalpolicy.org/ngos/ngo-unlinfolres-l296.htm>;Consultative Relationship Between the United Nations and Non-governmental Organizations, ESC Res. 1996131 (July 25, 19961, avaihbkat [hereinafter 1996 N G O Rule]. 73 1950 NGO Rule, supra note 72, para. 5. 74 1996 NGO Rule, supra note 72, para. 9 (emphasis added). 7 5 Cornpart 1950 N G O Rule, supra note 72, paras. 8-9, with 1996 NGO Rule, supra note 72, paras. 4-5.
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that an N G O given status "have a democratically adopted constitution" and that it "have a representative structure and possess appropriate mechanisms of accountability to its members, who shall exercise effective control over its policies and actions through the exercise of voting rights or other appropriate democratic and transparent decision-making processes."76 This attention to internal N G O governance reflects the growing concerns in the early 1990s about the legitimacy and accountability of NGOs. The 1996 N G O Rule codified the existing practice of suspending or withdrawing consultative status from NGOs that no longer meet the eligibility requirements or that misbehave as perceived by ECOSOC'S Committee on Non-governmental Organizations. For example, engaging in "unsubstantiated or politically motivated acts" against U N member states can be grounds for losing s t a t ~ s . An ~ ' N G O challenged by the government-only ECOSOC committee is to be given written reasons and accorded an opportunity to present its response." The work of the committee in granting and reviewing accreditation of NGOs has been criticized for overpoliticization and lack ofdue process." At present, no judicial review is available for a refusal by ECOSOC to grant an N G O consultative status. In my view, ECOSOC could increase the committee's credibility by permitting some NGOs to serve as members. The consultation norms underlying Article 71 have influenced institutional developments outside the United Nations. For example, in 1999 the Organization ofAmerican States (OAS) adopted the Guidelines for the Participation of Civil Society Organizations in OAS Activities." In 2001 the Constitutive Act of the African Union called for the establishment of an advisory Economic, Social and Cultural Council composed of different social and professional groups ofthe member states." Another example ofmimesis is the Antarctic Treaty consultative process where designated NGOs, such as the International Association of Antarctica Tour Operators, are permitted to participate. In the early nventy-first century, NGOs are pervasive. N o policy issues are off-limits for government-NGO consultations. As Alexandre Kiss and Dinah Shelton have observed, "Today, purely inter-state development of norms is probably non-existent in most fields of international law."82 This circumstance has been appreciated by the U.S. Congress, which in a November 2005 appropriation defined an "international conference" as a "conference attended by representatives of the United States Government and representatives of foreign governments, international organizations, or nongovernmental organi~ations."'~ INTERNATIONAL LAW 111. H O W NGOS CHANGED
In a recent study, Jost Alvara observed: "Although the impact of NGOs on legal development ebbs and flows, no one questions today the fact that international law- both its content 1996 NGO Rule, supra note 72, paras. 10, 12. Id., para. 57(a). 78 Id., para. 56. 7' See, e.g.,JurijDaniel Aston, The UnitedNationsCommitteeonNon-governmentalOrganizationc Guardingtbc Entrance to a Politically DividedHoure, 12 EUR. J. INT'LL. 943 (2001). The recent Report of the Panel of Eminent Persons on United Nations-Civil Society Relations (Cardoso Report) stated that "it is essential to depoliticize the accreditation process."We the Peoples:Civil Society, the United Nations and Global Governance,U N Doc. A1581 817, at 54, para. 127 (2004). OAS Permanent Council, CPIRes. 759 (1217199) (1999). " CorinneA. A. Packer & Donald Rukare. TbeNewAfican Unionandfts ConninrtiueAct,96AJIL365,375 (2002). ALEXANDRE KISS & DINAHSHELTON,INTERNATIONAL ENVIRONMENTAL LAW 167 (3d ed. 2004). 83 The definitionis found in a funding limitation on thenumber 0fU.S. employeeswhomay attend aconference. Science, State, Justice,Commerce, and Related Agencies Appropriations Act, 2006, Pub. L. No. 109-108,9634, 119 Stat. 2290 (2005). 76
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and its impact-has been forever changed by the empowerment of NGOS."'~ Indeed, an extensive body ofscholarship now attests to the importanceofNGOs to developments in international law.85With the rise of NGOs in international policymaking, thoughtful writers have seen the increasing tensions between reality and international law orthodoxy. For instance, in 1932 political scientist Stanley H. Bailey wrote that "[tlhe interposition of the fiction of the personified state conceals t h e reality t h a t t h e greater part o f t h e world-order is built o u t o f t h e
innumerable associations of individuals and groups which have not directly entered the sphere of governmental relation^."'^ Furthermore, he contended, "either the rigidity of international law cannot be much longer maintained or a new form of law applicable to the conduct of nongovernmental groups in international society will be necessary to bridge the gulf."" In 1955 Philip Jessup, Adolf Lande, and Oliver Lissitzyn took note of private international organizations and saw in them "[t] he piercing, but not tearing down, of the governmental wall between private interests and the international ~ociety."~'By boldly advocating new forms of cooperation, NGOs helped to make international law more responsive to the needs of the international community. In a lecture delivered a decade ago, Judge Higgins pointed to N G O demands as one phenomenon in "the reformation in international law.""An aspect of that reformation is a change in "the concept of international law" and, in particular, "in our notions of" the identity of the users and beneficiaries ofinternational law." Thus, in taking note of NGOs as players in UN conferences, Higgins wrote that "[tlhe interest of NGOs, and indeed their entitlement to be present at these gatherings, has been an important matter for them and for governments alike."" Higgins's metaphor of "reformation" is appropriate for NGOs. Reformation is the right word because it connotes a return to an earlier doctrine so as to clear away errors, such as the excessive state-centricity of positivist orthodoxy.92 The reformation of international law extends both to content and to process. The vastly expanded content of international law has been stimulated by NGOs, particularly in human rights, humanitarian, and environmental law. Through their focus on the rights ofindividuals, 84 JOSEE. ALVAREZ, INTERNATIONAL ORGANIZATIONS AS LAW-MAKERS 61 1 (2005); see also Eibe Riedel, The Development of International Law: Altematiues to Treaty-Making?International Organizations and Non-State 30 1,317 (RiidigerWolfrum & Volker Actors, in DEVELOPMENTS OF INTERNATIONAL LAW IN TREATYMAKING Riiben eds., 2005) (stating that NGO involvement in all processes of10 activities has been crucial and indispensable). R5 See, e.g., CONSTRUC~ING WORLDCULTURE:INTERNATIONAL NONGOVERNMENTAL ORGANIZATIONS OF THE WORLD':THE INFLUSINCE1875 (John Boli & George M. Thomas eds., 1999); 'THE CONSCIENCE ENCE OF NON-GOVERNMENTAL ORCANISATIONS IN THE UN SYSTEM(Peter wlletts ed., 1996); Tom Farer, New Players in the Old Game: The De Facto Expansion ofstanding to Participate in Global Security Negotiations, 38 AM. BEHAVIORAL SCIENTIST 842 (1995); Anne-Marie Slaughter, International Law andInternationa1 Relatiom, 285 RECUEIL DES COURS 9, 96-151 (2000) (constituting chapter 3, The Role of NGOs in International Lawmalung); TheGrowingRo&ofNongouernmentaIOrganizations,89ASILPROC.413 (1995); P. J. Simmons, Learning to Live with NGOs, FOREIGNPOL'Y,Fall 1998, at 82. 86 S. H. BAILEY,THEFRAMEWORK OF INTERNATIONAL SOCIETY81 (1932). Id. at 82. PHILIP C. JESSUP, ADOLFLANDE, & OLIVER J. LISSITZYN,INTERNATIONAL REGULATION OF ECONOMIC AND SOCIAL QUESTIONS 33 (1955). " Rosalyn Higgins, The Re$nnation in IntermtionalLaw, in LAW, SOCIETY AND ECONOMY 207, 21 1-15 (Richard Rawlings ed., 1997). 'O Id. at 212, 215. " I d . at 215. ''See Marek St. Korowin, The P r o b h ofthe IntermtionalPersomlity ofIndiuidualr, 50 AJIL 533,534 (1956) (notingthe views of Grouus and Pufendorf);Myres S. McDo@ &Gertrude C. K Leighton, The Rights ofMan in the 59 YALEL.J. 60,83 (1949) (stating that "[i] t is indeed World Community:Consti~utionalIUwrotl( Ver~u~RationafArrion, only from the narrowest perspectives of inrernationallaw as conceived in the period since Bentham that an observer can claim that wen theoretically only states, exclusive of individuals,are the subjects of international law").
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rather than the rights (and sovereignty) of states, leading NGOs surely deserve credit for helping to humanize modern international law, both treaty and customary." NGOs helped to transform the processes of international law as they learned how to mobilize states and leverage public opinion. As the mode of diplomacy changed from bilateral contracts to plurilateral law, NGOs invited themselves to the constitutive events, first as petitioners and later as accredited observers. The Congress of Vienna of 1814-18 15 was the first intergovernmental conference to feature extensive lobbying by private actors?* The Hague Peace Conference of 1899 attracted a mklange of voluntary associations, and inaugurated the idea of the N G O parallel ~onference.'~The League Conference of 1923 to draft the Convention Relating to the Simplification of Customs Formalities may have been the earliest intergovernmental negotiation in which an NGO-the International Chamber of Commerce-was specifically accredited to participate.96
NGOs as Competitors What made international law susceptible to being influenced by NGOs? One of the earliest insights was the NGO advantage in being independent. NGOs can be more creative than government officials because NGOs are not burdened with the need to champion a particular national or governmentalinterest. As Paul Reinsch explained in 1909, "private initiative" can be% bolder and more optimistic than that of the state. It is not beset by the ever-present care to preserve national sovereignty intact. . . ."" In 1936 Charles Fenwidr pointed out that international federations lacked representation in the Council and Assembly of the League of Nations, and suggested that giving such groups representation "might be greatly effective in cutting across national lines."98 In a 1960study, Quincy Wright observed that "private organizationshave many advantages over official organizations in the scientific exposition of international law."" He reasoned that the private groups "are freer to take a world point of view and to ignore particular, and frequently temporary, national interests which tie down official representatives."10o Another factor that may explain the influence of NGOs has been their ability to construct and encourage new norms for an interdependent world. In 1902 Pierre Kazansky perceived that the activities of international societies and associations were leading to the development o f international social interests."lO'This result contributed to what Kazansky called "international administration," which is "activity of states, international societies and their organs" directed '3 On customary international law, see John King Gamble &Charlotte Ku, IntmtionalLaw-New Actorsand New Technologies: CenterStage~5rNGOs?31LAW & POL'Y INT'L BUS. 221,244 (2000); Stephan Hobe, The Rok ofNon-State Actors, in ParticuLrofNGOs, in Non-contractua1I.a~-makingandthe Dcvelopmentof CustomaryInternationallaw, in DEVELOPMENTS OF INTERNATIONAL LAW IN TREATY MAKING,supra note 84, at 319,328. 94 Theissues in playwere theslave trade, religious freedom, and intellectual property. Max J. Kohler,Jewish Rights atInternationa~Congresses,A~.JEWIS~ Y.B. 5678, at 106,109-10 (1917); LAUREN,supranote 25, at40; HAROLD NICOLSON, THECONGRESSOF VIENNA:A STUDYIN ALLIEDU N I 1812-1822, ~ at 132 (1946). 95 SeeDavid D. Caron, War andInternacionalAdjudication: Re@ctions on the 1899Peace Confirenre, 94 AJIL 4, 15 (2000). In 1908, in his Nobel Peace Prize lecture, Fredrik Bajer likened the "organization of peace" to a "house of three stories," including on the first story the peace associations; on the second story, the interparliamentary conferences; and on the third story, the intergovernmental Hague Peace conferences. Fredrik Bajer, The Organization of the Peace Movement (May 18, 1908), at . International Conference on Customs and Other Similar Formalities: Official lnstruments Approved by the Conference, League ofNations Doc. C.D.I.96(1).1923, at 25; GEORGEL. RIDGEWAY, MERCHANTS OF PEACE 212-13 (1938). " Paul S. Reinsch, International Administratiue Law and National Sovereigny, 3 AJIL 1,22 (1909). " C.G. Fenwick, Thc "Fai1ure"oftheLeagurofNations, 30 AJIL 506, 508 (1936). 99 Quincy Wright, Activities ofthe Institute oflnternational Law, 54 ASIL PROC. 194, 196 (1960). I W Id. He also observed that private groups are free to make use of persons from all over the world. '01 PierreKazansky, ThCoriedel'administrationinternationak, 9RGDIP353,354,357 (1902) (trans. by author).
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to the "goal of protecting international social interests."'02 During the past decade, scholars looking at N G O and other nonstate participation have employed the terms "transnational advocacy networks," "transnational norm entrepreneurs," "nongovernmental norm entrepreneurs,"and "transnational moral entrepreneur^."'^^ As these terms indicate, the N G O seeks to sell its norms to authoritative decision makers and the public. In being entrepreneurial, NGOs compece with other actors in a dynamic marketplace of ideas.
Writing in 1949 about the "world power process," Myres McDougal noted that states were the most important participants, but he also called attention to IOs, transnational political parties, transnational pressure groups, cartels, and individual^.'^^ In the early twenty-first century, many additional participants can be named, such as multinational corporations and foundations. The concept of the entrepreneurial N G O animates theories about states and 10s. In an article about why NGOs should be able to participate in the WTO, Daniel Esty contended that nongovernmental "competition" could lead to a richer W T O politics, which could help improve the effectiveness of the WT0.'05 In his Hague Academy lecture, Judge Raymond Ranjeva analyzed the N G O as a "competitor" important to the implementation of international law.'06 The role of NGOs as norm entrepreneurs has also been incorporated into theories of why states obey international law.'07 Successful NGOs have gained advantage through innovation and adaptation. Nobel Prize co-winner Jody Williams famously remarked about the importance of the Internet, electronic mail, and facsimilecommunication to the land mines campaign. Yet that same story ofutilizing technology for publicity can be told about many N G O campaigns-for example, the use of the slide show by the Congo Reform movement in the early 1900s. N G O mobility is another advantage. Being autonomous and nimble, NGOs can travel to trouble spots where governments or 1 0 s fear to go or are slow to reach. Although the role ofNGOs challenges the state-centricity of international law, that does not necessarily translate into a challenge to the state. Thus, this author disagrees with commentators who see the rise of NGOs as leading to the decline of states. A state is not weakened just because its citizens speak through diverse voices. Actually, a more likely impact of NGO involvement has been to strengthen states when the new international legislation promoted by NGOs expands states' regulatory agendas.Io8 Assessing the N G O contribution to the reformation of international law requires special attention to the 10. NGOs were key proponents of establishing some of the earliest 10s. Once an I 0 is set up, interested NGOs will typically seek information about its activities and access to observe and influence decision making in the 1 0 . Such acts of N G O self-interest need no explanation. Less obvious is why governments agree to give access to NGOs. Over the years, many rational-choice explanations have been offered for this phenomenon, including that NGOs provide
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Id. at 361. See, e.g., MARGARETE. KECK & KATHRYN SIKKINK, ACTIVISTSBEYONDBORDERS1 (1997); Harold Home, 35 HOW. L. REV. 623,646,647 (1998); Ethan A. Nadelmann, Hongju Koh, BringingInternatiom~~w Gbbal Prohibition Rcgrmes: The Evolution ofNorms in InternationalSociery, 44 INT'L ORG. 479, 482 (1990). '04 Myres S. McDougal, The Role ofLaw in World Politics, 20 MISS. L.J. 253,260, 265 (1949); see ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONALLAWAND HOW WE USE IT@-50 ( 1 994) (explaining that international law is a dynamic decision-making process rather than merely a set of rules). la' Daniel C . Escy, Nan-governmental Organivrtionsar the World Tradt Organization: Cooperation, Competition, or ExcLusion, 1 J . INT'L ECON. L. 123, 135-37 (1998). '06 Raymond Ranjeva, L a organisations non gouverncmentak-s et la mise rn oeuvre du droit international, 270 RECUEiL DES COURS 9, 23, 100 (1997). '"See, e.g., Harold Hongju Koh, TransnatiomlLegalProcess, 75 NEB.L. REV. 181,203--04 (1996). lo8 See Reinsch, supra note 97, at 15-1 6; Ka Raustiala, The Y'articipatory Revolution "in International Environmentallaw, 21 HARV. ENVTL.L. REV. 537, 582-84 (1997). Io2
'03
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needed expertise, enhance public support for the 1 0 , and assist in the domestic internalization of norms developed in the 1 0 . Analysts have explored "the symbiotic relationship benveen 1 0 s and NGOs" with the two sides offering mutual legitimati~n.'~This relationship is carriedout openly. For example, U N secretary-general Kofi Annan has declared: "I see a United Nations which recognizes that the N G O revolution-the new global people-power-is the best thing that has happened to our Organization in a long time.""O Some scholars have emphasized the symmetry of the 1 0 s and the international-minded NGOs in that both are nonstate actors pursuing international goals."' Although that model is valid, a better model for analysis may be to consider the I 0 not as an actor to which authority has been delegated but, rather, as a designated arena where various governmental and nongovernmental participants compete and cooperate.' l 2 Appreciating the sites of international decision making as arenas in which NGOs compete for public support avoids a more problematic interpretation of the N G O role, namely, that NGOs represent the public. The international arena with the thickest nongovernmental participation is the ILO. Over the years, many analysts have suggested applying the ILO's method of N G O participation to other intergovernmental bodies,'I3 but this has not happened. The triparcism of the ILO worked because in 1919 the workers, employers, and governments were the principal stakeholders. In the postindustrial world, however, few important international employment issues involve only three principal stakeholders. Indeed, as Virginia Leary pointed out, the ILO's tripartism may impede it from offering adequate participatory opportunities to other NGOs, such as human rights groups."4 Beyond the ILO, a tripartite government-business-NGO formula for 1 0 s is imaginable, but surely too compartmentalized for the plethora of market and nonmarket interests in play today. IV. THELEGITIMACY OF N G O PARTICIPATION The question whether the tripartism of the ILO was legitimatedid not generate much attention in 1919 in the negotiations that established the ILO. Yet today the legitimacy of milder forms of NGO participation is under attack. In part IV,I address this ongoing debate and, in particular, whether it is legitimatefor democraticstates, acting in 10s or international negotiations, to consult with NGOs or otherwise give them an opportunity to be heard.'I5 No systematic exposition has come to my attention ofwhy such a state practice should be considered illegitimate. Various assertions to that effect, however, have been made and are discussed below. S~CALVAREZ,supra note 84, at 287,610,612. UN Press Release SG/SM/7318, Partnership with Civil Society Necessity in Addressing Global Agenda, Says Secretary-General in Wellington, New Zealand Remarks (Feb. 29, 2000). " See, e.g., Malgosia Fitzmaurice, Actors andFartors in the Evolution of Treaty Norms, 4 AUSTRIAN REV. INT'L & EUR. L. 1 (1999); Volker Roben, Prolz$eration ofActors, in DEVELOPMENTS OF INTERNATIONAL LAWIN TREAn MAKING,supra note 84, at 5 11,512. The earliest textbooks on international organization gave attention to NGOs. See, e.g., FREDERICK CHARLESHICKS,THE NEWWORLDORDER, ch. 20 (1920); PITMAN B. POTTER, AN INTRODUCTION TO THE STUDY OF INTERNATIONAI. ORGANIZATION,ch. 18 (rev. ed. 1922). 'IZ David Bederman has suggested that 10s be visualized as "communities." David J. Bederman, The Soulc of IntemationalOrganizations;LcgdPmomIityandtheLightho~eatCapespartel 36 VA.J . INT'L L. 275,371-72 (1996). 'I3 See, e.g., GeoffreyPalmer, New Waysto Makclnternatio~IEnvironmentalLaw, 86AJIL259,280-83 (1992). 'I4 Virginia A. Leary, Lessonsfiom the Experience of the International Labour Organisation, in THE UNITED NATIONSAND HUMAN RIGHTS 580, 585 (Philip Alston ed., 1992). ' I 5See Bosire Maragia,Almost There:Another Way of ConceptualizingandfiplainingNGOs'Questfir Lcgitimary in Global Politicr, 2 NON-ST. ACTORS & INT'LL. 301, 313 (2002); scc also Bruno Simma, From Bilateralism to Community Interest in InternutionalLaw, 250 RECUEIL DW COURS 217,235-36 (1994 VI) (noting the vital role of NGOs and asking whether sovereign states have a moral basis for monopolizing the discourse on the definition and pursuit of community interests in international law). lo'
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In the 1996 ICJ Nuclear Weapons cases, Judges Gilbert Guillaume and Shigeru Oda separately expressed concerns about the propriety of N G O influence on governments. Judge Guillaume, while agreeing to comply with the request by the U N General Assembly, issued a separate opinion saying that the Court could have dismissed that request (as well as the request by the World Health Organization) as inadmissible because it had originated in a campaign conducted by associations and groups.'16 In that regard, he opined: "I dare to hope that Governments and intergovernmental institutions still retain sufficient independence of decision to resist the powerful-pressure groups which besiege them today with the support of the mass media."'" Judge Oda dissented from the Court's decision to comply with the General Assembly's request and stated several reasons. One was that "[tlhe idea behind the resolution. . .had previously been advanced by a handful of non-governmental organizations (NGOs).""R Neither judge explained why the influential N G O involvement was problematic or why 1 0 s (or the ICJ) should be impermeable to influence from NGOs. The clearest argument for the illegitimacy of intergovernmental attention to N G O advocacy is the "second bite at the apple" thesis. Before he joined the Bush administration's diplomatic team, John Bolton was a leading critic of NGOs. In 2000 Bolton argued that N G O "detachment from governments" was troubling for democracies because civil society "provides a second opportunity for intrastate advocates to reargue their positions, thus advantaging them over their opponents who are unwilling or unable to reargue their cases in international fora.""' Furthermore, he claimed that "[c]ivil society's 'second bite at the apple' raises profoundly troubling questions of democratic theory that its advocates have almost entirely elided."'20 This thesis might be summarized as saying that governmental receptivity to input from NGOs should occur only in domestic fora, not in international fora. Kenneth Anderson and David Rieff have offered a more detailed analysis of the legitimacy of N G O adv~cacy.'~' In part, they object to the inflated rhetoric asserting that internationally active NGOs make up "global civil society" and that, as such, speak for the people(s) of the world. Yet their deeper concern involves what they contend are flawed analogies between domestic and international N G O advocacy with regard to both the role of NGOs and the setting for their activities. In domestic democratic society, they say, NGOs are able to "play the role of single-minded advocates . . . precisely because they are not, and are not seen as being, 'representative' in the sense of democratic representation."lZ2Yet in the international realm, they say, NGOs (perceiving themselves as global civil society) aspire to quite different roles, including both representativeness and standing between the people of the world and various transnational institutions. Anderson and Rieff also object to the analogy between domestic democratic society and the international community, saying: "Because, plainly, international ' I 6 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ REP. 226,287-88, para. 2 (July 8) (Guillaume, J., sep. op.). He suggested "piercing the veil" of the 10s. Id. In its opinion, the Court stated "that the political nature ofthe motives which may be said to have inspired the request and the political implications that theopinion given might have areofno relevance in the establishment ofits jurisdiction to givesuch an opinion." 1996 ICJ REP.at 234, para. 13. "'Id. at 288, para. 2 (Guillaume, J., sep. op.). 'I8Id. at 335-36, para. 8 (Oda, J., dissenting). Regarding the World Health Organization's request, Judge Oda issued a separate opinion agreeing with the Court's decision to decline to render an opinion, but holding that the advocacy by the NGOs was an additional reason to decline. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 ICJ REP.66, 92-96, paras. 9, 15-16 (Oda, J., sep. op.). "'John R. Bolton, Should We Take Global Governance Scriourly? 1 C H IJ.. INT'LL. 205,217 (2000). l Z O Id. 12' Kenneth Anderson & David Rieff, 'Global Civil Socity: A Sceptical View, in GLOBALCImL SOCIETY 200415, at 26,37 (Helmut Anheier et al. eds., 2004). I z 2 Id. at 29.
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society is not democratic, international NGOs are deprived of the democratic context in which their (disanalogous) domestic counterparts act."Iz3 A central argument in Anderson and Rieff's analysis is that, as the international system is assigned more and more "intrusive" tasks by leading states, "the ever more diluted legitimacy that passes upwards from nation state to international system is inevitably far too attenuated to satisfy the requirements of those new tasks."124 The gravamen of their argument is that international NGOs cannot fill in any missing legitimacy. In my view, an N G O cannot justify its own activist role on the claim that it represents the public. So Anderson and Rieffare right to criticize the pretentious assertions ofsome N G O S . ' ~ ~ Nevertheless, their argument misses the possibility that more open and inclusive processes of decision making can help to overcome the allegedly attenuated democratic legitimacy of international governance. Throughout the twentieth century, many commentators have examined nongovernmental participation in 1 0 s and reflected on what that might mean for democracy. For example, in 1927 Georges Scelle chronicled the role of professional interests and private organizations in the ILO and the League of Nations, and saw in that practice an evolution "toward the gradual That same year, Walther Schiicking called attencreation of an international 'demo~racy'."'~~ tion to the League's "direct collaboration with individuals and social forces in the form of other organizations," and visualized the League as developing in parallel to states where "democratization started with citizens being invited to participate in different administrative ta~ks."'~' In 1936, in a study of worker organizations, Alexandre Berenstein wrote that "[tlhis democratization was easier to obtain by means of the representation of social milieus . . . specially interested in social legislation than by the creation of a truly international parliament."'28 In 1954 David Mitrany, taking note ofArticle 71 of the U N Charter, posited that NGOs "could be made into instruments of real democratic representation where the mass collection ofvotes by universal suffrage would in truth be meaningles~."~~' A few years ago, James Crawford and Susan Marks observed that "the vastly enhanced participation in recent years of non-governmental organizations at the international level is one indication of the pressures and possibilities for democracy in global decisi~n-making."~~~And Menno Kamminga has written that by contributing the views of civil society, NGOs "confer badly needed legitimacy on the international Id. at 30. Id. at 34. Note that the idea of NGOs as serving a representative function at the United Nations goes back to how UN member governments implemented Artide 71 in 1950 in calling for an accredited NGO to "represent a substantial proportion of the organized persons within the particular field in which it operates." See text at note 73 rupra. lZ6 GEORGES SCELLE, UNECRISE DE LA SOCIETEDES NATIONS 144-46 (1927) (trans. by author). Scelle's term for NGOs was extra-state societies. GEORGESSCELLE, P&CIS DE DROIT DES GENS 288 (1932). 12' Walther Schucking, Le dPveloppement du Pacte a5 (a SociPti der nations, 20 RECUEIL COURS 349,394 (1927 V) (trans. by author). In 1921 Schuckingsaid that "the time had arrived in which it was necessary to create a new international law not only for states but for peoples, in order that the natural law of peoples to govern themselves should penetrate the law positive." James Brown Scott, Walter Schiirking,Januaty 6 1875-August25, 1935, 31 AJIL 107, 109 (1937) (quoting Schucking at Institut de droit international, Rome, Oct. 8, 1921). lZ8ALEXANDREBERENSTEIN, LES ORGANISATIONS OWRI~RES: LEURSCOMP~TENCESET LEUR R ~ L E DANS LA SOCIETE DES NATIONS 277 (1936) (trans. by author). "Wavid Mitrany, An Advance in Democratic Representation, 6 INT'LASSOCIATlONS 136, 188 (1954). Yet he presciently warned that "if the NGO's are to become the accepted channel of international publicopinion they will have to display a sense of restraint and responsibility in their views and claims; and perhaps also perform among themselves a certain process of selection." Id. James Crawford & Susan Marks, The GlobalDemorra~yD&t: An Erray in International Law andlts Limits, in RE-IMAGINING POLlTlCAL COMMUNIIY STUDIES IN COSMOPOLITAN DEMOCRACY 72, 83 (Daniele Archibugi, David Held, & Martin Kiihler eds., 1998). lZ3 lz4
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system."'31 A common thread in this stream of scholarship is that the nation-state does not constitute the highest level attainable by democracy. Intergovernmental consultations with NGOs can enhance the legitimacy of international decision making, but it is the consultation itself that makes the contribution, not the quantity
of NGO support obtained. Thus, I disagree in part with what Thomas Franck has stated: If you continue indefinitely to transfer authority over really important issues that affect people's interests to institutions that do not even have a pretense of representativeness, you will have the seeds of self-destruction. Not only do NGOs not address that problem because they are in no sense a substitute for some direct form of representation of people in the process which normally one thinks of as parliamentary representation . . . . NGOs are irrelevant, they do not in any sense legitimate the decision-making process. They may make it better, sometimes they may make it worse, but the legitimacy deficit is not addressed by them . . . In my view, Franck does not give enough consideration to the ways that NGOs can improve international decision making. My more serious disagreement, however, is with the arguments by Anderson, Rieff, and Bolton that the democratic context in which NGOs operate internationally differs significantly from the context in which NGOs operate domestically. Those arguments are wrong because they ignore political reality. Individuals and NGOs must operate in the world as it is. As Florentino Feliciano pointed out several decades ago, our world is "a !graduated series of community contexts-each exhibiting a public order system-of varying territorial scope."133Every territorial context can be relevant and legitimate for use by an N G O motivated by an international mission. Indeed, the most successful NGOs operate at many levels in localities, national capitals, and international arenas. They play multilevel games. Because binding international decisions are made by either consensus or prescribed majorities, an individual seeking international collective action wants the assent not only of the government with direct authority over him, but also of many other governments. An N G O can help to amplify the voice of an individual in seeking the support (or opposition) of governments that the individual has no role in electing.I3*For example, an activist N G O in the Federated States of Micronesia concerned about global warming will not rest simply because it has convinced the Micronesian government to ratify the Kyoto Protocol. Since continuing globalization will require frequent intergovernmental decision making, the difficulty of achieving legitimacy is a challenge to be overcome, not a valid justification for avoiding international commitments. How is legitimacy attained? A study by Daniel Bodansky, focusing on international environmental law, posits three bases of legitimacy-state consent, procedural fairness, and the 13'
Kamminga, supra note 60, at 110.
"'Thomas M. Franck, Remarks, rn NON-SI'A'Tt. ACTORS AS N ~ W S U B J E C0 ~k SINTERNATIOKALL A W 15 1 , 152 (Rainer Hofmann ed., 1998). Professor Franck's viewson NGOs haveevolved. Several years ago, he wrote that introducing the voice of individuals and interest groups in diplomatic negotiations "amelio~ates,b i t does not cure, the legitimacy-deficit of Vattelian international governance and the modern alienation that ensues." THOMASM. FRANCK,THE EMPOWEKED SELF:LAW AND SOCIETY IN THE AGE OF INDIVIDUALISM 36 (1999). I"' Florentino P. Feliciano, Book Review, 68YALE L.J. 1039,1047 (1959) (reviewingc. WILFREDJ E N K S , T ~ I E COMMONLAW OF MANKIND(1958)). "* In that regard, the goal of lobbying is functionally the same at the international level as it is at the domestic level, where the individual is typically governed by parliaments containing many members for whom he had no opportunity to vote.
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substantive outcomes a~hieved."~Astudy by Robert 0.Keohane and Joseph S. Nye Jr., focusing on the WTO, suggests that legitimacy at the international level depends on both the procedures followed ("inputs") and the results obtained ("outputs").'36 Keohane and Nye call attention to existing mechanisms for "nonelectoral accountability" through a "communicative environment" that may involve "global publics" such as NGOs, even when there is no "global c~mmunity."'~'They conclude that "some form of N G O representation in the institutions involved in multilateral governance. . . could help to maintain their legitimacy."'38 In a more recent study on the sources of normative legitimacy of multilateral decision making, Keohane contends that in the nventy-first century, only democratic principles, appropriately adopted, can confer legitimacy.'39 Whether N G O participation adds to, or detracts from, the legitimacy ofinternational decision making can be explored through an analysis of inputs and outputs. The input is the process of decision making. The output is the effectiveness of the decisions reached. NGOs facilitate input legitimacy in several ways. One is to promote accountability by monitoring what government delegates say and do in the I 0 and to communicate that information to elected officials and the public. Another is to help assure that decision makers are aware of the sympathies and interests of the people who will be affected by intergovernmental decision~.'~~ The contribution of NGOs to input legitimacy may depend on several factors. One is the independence and integrity of the NGO. During the past decade, many analysts have pointed to the need for NGOs to be transparent and accountable.141Another factor is whether a consultation process assures a fair balance of NGOs from different parts ofthe world.'42 Over the past twenty years, NGOs have joined together more often in large coalitions, a practice that can overcome narrow-minded perspectives. NGOs can contribute to output legitimacy in several ways. One is to offer their specialized expertise to enable more informed decisions. NGOs can often be sources of information that governments may not have. Another is to raise the quality of policy deliberations so that the choices available are better u n d e r ~ t o o d . ' ~ ~ Daniel Bodansky, The Legitimary oflntmational Governance:A Coming Challcnge$r International Environmental Law? 93 AJIL 596,612 (1999). "" Robert 0. Keohane &Joseph S. Nye Jr., The Club Model ofMultikzteral Cooperationa n d P r o b h s ofDemocraticlegitimary, in EFFICIENCY, EQUITY, AND LEGITIMACY: THEMULTILATERAL TRADINGSYSTEMATTHE MILLENNIUM 264,282 (Roger B. Porter et al. eds., 2001). They cite earlier work by Fritz Scharpf on input and output legitimacy. Id. at 293 11.40. ''' Id. at 283-84. 13' Id. at 289-90. '" Robert 0. Keohane, The Contingent Legitimacy ofMultilateralism, in MULTILATERALISM UNDERCHALLENGE? POWER,INTERNATIONAL ORDER, AND STRUCTURAL CHANGE(Edward Newman, Ramesh Thakur, &John Tirman eds., forthcoming 2006). See Frederick S. Dunn, The InternutionalRights oflndividuab, 35 ASIL PROC. 14,18 (1941) (suggesting that if international law is to regain its former influence, then it needs to be in harmony with social dwelopments in democracy that entail a right of the individual to be consulted in matters affecting his welfare). 141 See, e.g., MICHAELEDWARDS, NGO RIGHTSAND RESPONSIBILITIES (2000);August Reinisch, The Changing International Legal Framework for Dealing with Non-State Actors, in NON-STATEACTORS AND HUMAN RIGHTS, supra note 10, at37,48-49; PeterJ. Spiro, AccountingjwNGOs, 3 CHI.J . INT'LL. 161 (2002);EricStein, International Integration and Democracy: No Love at First Sight, 95 AJIL 489, 533 (2001). 142 Christine Chinkin, Human Rights and the Politics of Representation: Is There a Rolcfor International Law? in THE ROLE OF LAW IN INTERNATIONAL POLITICS: ESSAYS IN INTERNATIONAL RELATIONSAND INTERNATIONAL LAW 131, 144 (Michael Byers ed., 2000). See CHIANGPEI-HENG, NON-GOVERNMENTAL ORGANIZATIONSAT THE UNITEDNATIONS5 (1981) (suggesting that the most important function of NGOs is "providing alternative programs and ideas, and views in opposition to or critical of official policies and opinions").
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O f course, N G O participation does not necessarily improve the outputs from 1 0 s or multilateral negotiations. Consultation with NGOs takes time, which can exact a cost. Moreover, while inviting the NGOs in makes the entire process more transparent to the public, such transparency can lead to different results than would ensue if governments arrived at agreements behind closed doors. Sometimes the involvement of NGOs in negotiations has led governments to formulate impractical agreements. Given the many N G O contributions noted above, there are logical reasons for governments acting together to consult NGOs and to perceive such actions as legitimate. Whether or not these reasons are the motivating force behind current state practice I doubt anyone can know. Perhaps the underlying motivation is that government officials deciding whether to consult NGOs believe that such consultation is good politics.
V. TOWARD A DUTY T O CONSULT NGOS In this part, I consider whether states have a duty to be open to consultation with NGOs in activities of 1 0 s and in multilateral negotiations. The term "consultation" has been defined as "a duty to listen" with a "good faith commitment to consider the information provided by the consulting partner."'44 In addition to the Article 71 approach, some other forms of consultative good governance include advisory groups, international notice and comment, and multistakeholder dialogues that bring together NGOs and the private sector.145 The practice ofconsulting with NGOs is widespread and continues to expand. For most of its existence, the UN Security Council appeared to be off-limits for NGOs, but that insularity ended in 1997 when NGOs began to brief groups ofcouncil members and then, in 2004, the Council i t ~ e 1 f . INGOs ~~ have occasionally addressed special sessions of the U N General Assembly and, in September 2005, two N G O leaders made short presentations to the World Summit.'*' During the 1990s, NGOs gained some limited opportunities to provide input within the World Bank, and to a lesser extent, the International Monetary Fund. The international financial institution for the environment, the Global Environment Facility (GEF), provides for five NGOs to participate in GEF Council meetings and these NGOs are chosen by the GEF's N G O network. Only a few multilateral agencies continue to resist adopting an N G O consultation process. In 2006 the most notable holdout is the WTO. The ostensible reason was given in a W T O decision enacted in 1996, which noted "the special character of the W T O , which is both a legally binding intergovernmental treaty of rights and obligations among its Members and a 14' Mary F. Dominick, Conrultation, 1 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW776,778 (1992). Seegenerally FREDERICL. KlRGIS JR., PRIOR CONSULTATION IN INTERNATIONAL LAW (1983). An example of an advisory group is the Business Advisory Council of the Asia-Pacific Economic Cooperation Forum. Notice-and-comment opportunities are provided in several 10s. for example, the Organization for Economic Co-operation and Development. For examples of multistakeholder dialogues, see Monterrey Consensus of the International Conference on Financing for Development, UN Doc. NCONF. 19811 1, annex, para. 69 (2002): World Summit on the Information Society, Tunis Agenda for the Information Society, para. 72 (2005), available at . I4%t the 2004 meeting, CARE International and the International Center for Transitional Justice briefed Council members on the role of civil society in postconflict peace building. Arria and Other Special Meetings Between NGOs and Security Council Members, June 22, 2004, avaihbk at ;Ruth Wedgwood, Legal Perronaliry and the Role ofNan-govmzmental Organimtionr andNan-State Political Entities in the UnitedNatiom Systm, in NON-STATEACTORS AS NEWSUBJECTSOF INTERNATIONAL LAW, supra note 132, at 21.27. '41 Before the summit, the president of the General Assembly presided over informal interactive hearings with NGOs and the private sector.
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forum for negotiations."'48 The decision went on to state that "there is currently a broadly held view that it would not be possible for NGOs to be directly involved in the work of the W T O or its meetings." '49Adecadelater, that view remains strongly held- even though international NGOs are now exerting more influence on high-profile trade issues, such as maintaining access to pharmaceuticals and reducing trade-distorting agricultural subsidies. Another (embarrassing) footdragger is the International Law Commission (ILC), which ' ~ ~it seems only a matter of time does not provide opportunities for N G O c o n s ~ l t a t i o n .Yet until a more progressive approach to codification flowers there, too. The ILC already has authority in its Statute to "consult with any international or national organizations, official or non-official, on any subject entrusted to it if it believes that such a procedure might aid it in the performance of its function^."'^' A good first step for the ILC would be to hold a one-day public hearing during its annual session. In view of this breadth of practice on consulting NGOs, the question whether states or 1 0 s have a duty to consult NGOs is an interesting one. The answer appears to be no at this time, but a review of the sources of law can be instructive. Below, I will look at treaties, intergovernmental statements, and the teachings of the most highly qualified publicists. The main human rights treaties do contain some important language on point. The International Covenant on Civil and Political Rights states that "[elveryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless off ion tier^."'^^ The American Declaration of the Rights and Duties of Man states that "[elvery person has the right to submit respectful petitions to any competent authority, for reasons of either general or private interest, and the right to obtain a prompt decision thereon."'53 Yet those provisions may be too general to demonstrate a duty to consult. A review of specialized treaties shows an incorporation of N G O consultation processes, but the treaties typically do not enthrone a duty. Aside from the special case of the ILO, where employer and worker delegatesserve as group representatives on the Governing Body, the usual practice in international regimes is that participation of NGOs is permissive rather than mandatory. For example, the convention on land mines lists relevant NGOs among the entities that may be invited to attend meetings of states parties, review conferences, or amendment conferences. 15* Yet there is one important exception: The environment regime has given N G O participation legal mooring. Several multilateral environmental agreements call for the automatic Guidelines for Arrangements on Relations with Non-governmental Organizations, Doc. WTILI 162, para. VI (1996). Once a year, the WTO Secretariat sponsors a symposium in which invited NGOs participate in panel sessionsalong with business leaders, government officials, and academics. In addition, NGOs are invited to attend WTO ministerial conferences as silent obervers. For example, in December 2005, over eight hundred NGOs attended the Hong Kong ministerial conference. 14') Id. I5O Christine Chinkin, EnhancingtheIntemationalLaw Commission'sRekztionshzps with OtherLaw-makingBodics and Rek-uantAcadnnicand ProfissionalInstitutions, in MAKINGBETTERINTERNATIONAL LAW: THE INTERAT 50, at 333, 339-41, UN Sales No. ElF.98.V.5 (1998); HILARY CHARLESNATIONAL LAW COMMISSION WORTH & CHNSTINECHINKIN, THEBOUNDARIES OF INTERNATIONAL LAW: A FEMINISTANALYSIS 101 (2000). Statute of the International Law Commission, Art. 26(1). 152 Internationd Covenant on Civil and Political Rights,Dec. 16, 1966, Art. 19(2), 999 UNTS 331 (emphasis added). '53 American Declaration ofthe Rights and Duties ofMan, May 2,1948, Art. XXIV, 43AJIL Supp. 133 (1949). ' 5 4 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction, Sept. 18, 1997, Arts. 11.4, 12.3, 13.2, 36 ILM 1507 (1997).
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admission of N G O observers. The first to do so was the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) of 1973, which provides: Any body or agency technically qualified in protection, conservation or management of wild fauna and flora, in the following categories, which has informed the [CITES] Secre-
tariat of its desire to be represented at meetings of the Conference by observers, shall be
a d m i t t e d unless a t least one-third of t h e Parties present object:
(a) international agencies or bodies, either governmental or non-governmental
...
After CITES, other major environmental agreements were written using similar language except for "may be admitted rather than "shall be admitted."156Nevertheless, such provisions still maintain a presumption for granting observer status to NGOs. A review of nonbinding international declarations shows some support for a principle that NGOs should be consulted. For example, in 1992 a U N conference adoptedAgenda21, which states: The United Nations system, including international finance and development agencies, and all intergovernmental organizations and forums should, in consultation with nongovernmental organizations, take measures to:
(b) . . . enhance existing or, where they do not exist, establish, mechanisms and procedures within each agency to draw on the expertise and views of non-governmental organizations in policy and programme design, implementation and evaluation . . . In 2005 the Santiago ministerial conference of the Community of Democracies proclaimed a commitment "to enhancing the participation of a dynamic civil society at the domestic and international level."158A duty to consult NGOs can also be characterized as a right ofNGOs to speak (their conception of) truth to power. In 1999 the UN General Assembly approved the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, which provides that "everyone has the right, individually and in association with others, at the national and international levels: . . . (c) To communicate with non-governmental o r intergovernmental~r~anizations.""~
One objection to a claim of an international duty to consult is that there is not yet a binding international norm obliging states to consult with NGOs in domestic legislative, executive, or judicial decision making. That would be a powerful argument, on the assumption that a norm regarding the international level must move up from the national level. Yet that assumption may be unjustified. For example, according to Lyman White, a leading scholar on NGOs in '55 Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, Art. XI(7)(a), 993 UNTS 243,12 ILM 1085 (1973). The Aarhus Convention of 1998 containsasimilar provision.Aarhus Convention, supra note 48, Art. lO(5). That language occurs in conventions regarding theozone layer, hazardous waste, climate change, biodiversity, desertification, hazardous chemicals, and persistent organic pollutants. In some meetings, NGOs are invited to make oral statements at the invitation of the chair. 15' United Nations Conference on Environment and Development, Agenda 21, ch. 27.9(b), U N Doc. A/CONF.151/26 (1992), UN Sales No. E.93.1.11. 15' Community of Democracies, 2005 Santiago Ministerial Commitment, Cooperating for Democracy, $1 (Apr. 30, 2005), availabk at . '59 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res. 531144, annex, Art. 5 (Mar. 8, 1999) (emphases added).
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the mid-twentieth century, ECOSOC's implementation of Article 71 culminating in the 1950 Rule "went firther in extending to Non-Governmental Organizations opportunities for the presentation of their views than have ever been extended to nongovernmental groups by any national government."'60The general point is that 1 0 s are not limited to being the lowest common denominator of the states composing them. The views of publicists should also be examined in ascertaining whether there is a duty to consult. Over the past several years, several commentators have suggested that international decision makers have an obligation to provide consultative opportunities for private groups, or contended that NGOs have a right to render advice.'" Equally or even more noteworthy is the longtime appreciation of a principle ofconsultation. In his 1795 essay To Perpetual Peace, Immanuel Kant posited that every nation should seek advice from philosophers concerning the principles on which it should act toward other nations.'62 He then went on to say that "an arrangement concerning this issue among nations does not require a special agreement, since it is already present as an obligation in universal (morally legislative) human reason."lG3This obligation does not mean, he explains, that the nation must give the principles of the philosophers precedence over the representatives of national power, but "only that they be heard."'" In 1932, in his Hague Academy lecture The Petition in International Law, Nathan Feinberg carefully examined whether there is an obligation in international law for authorities to examinea "petition-voeu," in which the petitioner expresses wishes it has for the public interest.'65 Feinberg concluded that when petitioning to international assemblies first began in the early nineteenth century, it had the character of a simple usage, but with time "developed into an obligatory norm."'" As he saw it, the "right to petition" is "not so much the right of the individual to send the petitions . . but the obligation incumbent on international authorities not to refuse to receive them and to follow up
.
Lyman White, Non-gouernmentalOrganiurtionrand TheirRtIatiotu withthe UnitedNatrons, 1951 ANN. REV.
' 6 ~
UN AFF. 165, 166-67. At the time that he made this observation. Whlte was a UN staffofficial working on N G O affairs. 16' JANNEELISABETH NIJMAN,THE CONCEPTOF INTERNATIONALLEGAL PERSONALITY 469 (2004) (suggesting that when groups "are silenced orsuppressed, the international community has aduty to accommodate these groups on stage and to be an audience to them"); Laurence Boisson de Chazournes & Philippe Sands, Inmduction to INTERNATlONALhW,THE INTERNATIONALCOURT OF JUSTICEAND NUCLEAR WEAPONS1,10 (Laurence Boisson de Chazournes & Philippe Sands eds., 1999) (seeing a "growing entitlement of individuals and non-governmental organisations to a more formal and informal involvement in international judicial and quasi-judicial proceedings"); =ggins, quoted in text at note 91 supra (using the term "entitlement"); Nowrot, supra note 53, at 625 (suggesting that the participatory rights granted to NGOs under the internal law of the United Nations are a form of entitlement); Peter Willetts, From "ConsultativeArrangments"to "Partnership'! The Changing Statur ofNGOs in Diplomacyatthe UN, 6 GLOBALGOVERNANCE191,205 (2000) (suggesting that Article 71 ofthe U N Charter can now be regarded as part of customary international law and seeing evidence for this in the way that NGOs can gain access even when the political climate turns against them). Immanuel Kant, To P e p h d P e a c r , in PERPETUALPEACE AND OTHER ESSAYSON POLITICS,HISTORY, AND MORALS 107, 126 (Ted Humphrey trans., 1983) (Kant pagination 368-69). Id. Id. A similar idea was voiced in 1916 by Henri La Fontaine, who wrote that the highest interests ofhumanity have found their expression in numerous free organizations; the international needs of men have induced them to come into closer relations despite frontiers and to unite in order the better to satisfy these needs. It is natural that they will appeal to the Conference ofstates and try to obtain its aid; it seems right toallow them to transmit their wishes to the Conference and submit to it the best means of realizing them. HENRILA FONTAINE, THE GREAT SOLUTION65 (1916). La Fontaine does not discuss Kant. O n La Fontaine, see The Award ofthe No6d Peace Prize to Senator Henri LaFontaine, 8 AJIL 137 (19 14). '65 Nathan Feinberg, Lapktition en droit international, 40 RECUElL DES COURS529,628 (1932 11). Feinberg also discusses the legd status of the "petition-complaint" in which the petitioner demands rectification for an injury to its private interest. '66 Id. at 631 (trans. by author).
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on them."16' Feinberg foresaw that the petition-voeu "gives to the large private organizations, which represent the vital forces of society, the possibility to intervene in the international organization of the world."'68 Writing in different centuries, Kant and Feinberg propounded a similar thesis that states have an obligation to listen to nongovernmental opinion and to take it into account when making decisions affecting orher nations. What Kant and Feinberg recognized in their times has
become a clearer reality in our time. Looking to the future in 1971, Louis Sohn took note of the fact that UN bodies were assigning a slightly bigger role to NGOs, and suggested that "[ilf this continues over a number of years, their role may become very important."'" Sohn's prediction was so much on target that in recent years, some commentators have worried about the possibility that government consultation with NGOs has become sufficiently extensive to have an adverse effect on international decision making. One such concern is that too much of a good thing leads to N G O congestion. Another of these concerns is that the exertion of pressure on negotiations by singleinterest NGOs makes it harder to formulate a genuine common interest. The concern that the N G O pursuit of a solitary interest can lead to a counterproductive outcome may have some validity, but significant benefits are gained from the robust debate that ensues. For example, whatever the faults of the environment NGOs and development NGOs that criticized international economic policy in the 1990s, they succeeded in exposing the dangers of insularity in the W T O and the Bretton Woods institutions. That experience points to a practical benefit of NGOs, which is that they can help to cross-fertilize norms among 10s. In addition, the traditional political economy concern about partial and special interests will have less applicability to NGOs that espouse process-based causes (e.g., Transparency International). The pursuit of individual interests by NGOs leaves open the question of how to reconcile competing interests. In a paper presented to the 1939 annual meeting of the American Society of International Law, Roscoe Pound noted the rise of associations and institutions, and identified a need for "[a] theory of interests" to assist in the recognition, classification, comparison, and valuing of "competing interest^.""^ That intellectual task remains. In Pound's view, a law governing international relations would have to deal effectivelywith the claims, demands, and desires being asserted, and he pondered whether one should think of world society as an institution "englobing" states."' Looking ahead, I predict that NGOs will continue to inject competing facts and sentiments into public debate, and that intergovernmental consultations with NGOs will help to achieve more englobing international law in the twenty-first century.
'"
Id. at 632.
'" Id. at638. Feinbergwrotein 1932, a high-water mark for NGO participationin the pre-World War11 period. I" Louis B. Sohn, Remarks on the role of lawyers and legal resourcefulness,inTHE EFFECTIVENESS OF INTERNATIONAL DECISIONS:PAPERS OF A CONFERENCE OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW AND THE PROCEEDINGS OF THE CONFERENCE 488,491 (Stephen M. Schwebel ed., 1971). Roscoe Pound, The Idea of Law in Internutional Relations, 33 ASIL PROC. 10, 18 (1939). 'I
Id. at 21. Pound says that he borrowed the term "englobing"from the French jurists of rhe international
school.
THE INVISIBLE COLLEGE OF INTERNATIONAL LAMryERS
Oscar Schachter* Among the many distinctions of Brunson MacChesney's notable career have been the positions of leadership to which he was elected by his fellow international lawyers. Professor MacChesney did not treat these offices as merely honorific. He devoted himself with vigor and enthusiasm to the collective efforts to strengthen the role of international law in achieving its aims of peace and justice. As President of the American Society of International Law, he had a leading part in expanding the work of research and development of the Society. He was especially instrumental in opening new paths toward interdisciplinary work and collaboration with international lawyers throughout the world.' In light of this aspect of Professor MacChesney's career, it seems appropriate on this occasion to offer some reflections on the professional community of international lawyers. That professional community, though dispersed throughout the world and engaged in diverse occupations, constitutes a kind of invisible college dedicated to a common intellectual enterprise. As in the case of other disciplines, its members are engaged in a continuous process of communication and collaboration. Evidence of this process is found in the journals and yearbooks of international law, in the transnational movement of professors and students, and in the numerous conferences, seminars and colloquia held in all parts of the globe. But this communication is by no means confined to the realm of scholarship. For the international bodies and conferences of an official character are largely composed of jurists who are part of the active professional community and who maintain intellectual contact with the scholarly side of the profession. The invisible college thus extends into the sphere of government, resulting in a pinitration pacifique of ideas from the nongovernmental into official channels. It would be unrealistic, however, to think of
*
Oscar Schachter, J.D., Columbia University (19391, is Professor of Law at Columbia Law School. He is a member of the Institute of International Law, an editor of the American Journal of International Law and a past President of the American Society of International Law. Many of the ideas in this article were expressed in a special report prepared by the DE DROIT author on the role of the Institute of International Law and printed in INS'I'ITUT INTERNATIONAL, LIVREDU CKNTENAIRE 1873-1973: EVOLUTION ET PERSPECTIVES DU DROIT INTERNATIONAL 40341 (1973). 1 Remarks of Brunson MacChesney, 1965 PROC.AM. SOC. INT'LL. 224.
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this as a one-way penetration. Individuals who move from one role to another are unlikely to remain uninfluenced by the ideas and considerations which impinge on them in their different capacities. The mingling of the scholarly and the official affects both categories, and often creates tension as individuals move from one role to another or perceive themselves as acting in the dual capacity of objective scientist and government advocate. AND OFFICIAL INFLUENCE PROFESSIONAL INDEPENDENCE
Concern over this kind of "dedoublement fonctionnel" has been manifested by both government officials and scholars. Government officials often tend to suspect or disdain "objective" views as divorced from reality and insufficiently responsive to national aims. This attitude can have a significant impact on some international lawyers. It may lead them to adopt a strong "national interest" and "realpolitik" line, or it may convince them of the necessity of foregoing this dual capacity and maintaining their objectivity removed from government influence. From the latter point of view, the mingling of the nonofficial and the official roles is perceived as a renunciation of the scholar's independence and often as a capitulation to the pressures of specific governments or the dominant social system. Some have urged, for these reasons, that there be a clear and sharp separation of the scientific from the governmental and that professional associations as well as individuals should reinforce that separation. The problem goes deeper, however, than the issue of wearing two hats. It inevitably raises the question of objectivity in international law. International law, after all, is not a scientific discipline in the same sense as physics or chemistry. It is not value-free; its concepts and norms are deeply enmeshed in the interests of national states and in the philosophic and political attitudes of diverse social and cultural s ~ c i e t i e sTo . ~ assume that international law can be entirely separated from these factors, to rise above them, is not borne out by experience or realistic hopes for the future. Even highly technical subjects are frequently approached in quite different ways by those who differ in their conceptions of the ends to be served and of the ordering of values. A fortiori, such diverse approaches characterize the more political subjects, such as those bearing upon peace and security, the sharing of resources or social justice-subjects which are today a significant part of international law. In observing that international lawyers are likely to reflect their value systems and meta-juridical preferences, I do not mean to suggest that they will necessarily accept the positions of their national states. 2 See C. DE VISSCHER,THEORY AND REALITY IN PUBLIC INTERNATIONAL LAW71-173 (rev. ed. P. Corbett trans. 1968); McDougal & Lasswen, The Identification and Appraisal of Diverse Systems of Public Order, 53 AM. J. INI'L L. 1 (1959).
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International Lawyers
Obviously some will select political and social ends which are not dominant in their national societies. They may do this explicitly, or they may implicitly assume value systems based on philosophical or cultural attitudes of other groups. One would hesitate today to assume that the individual members of a particular nationality shared the same political outlook and the same order of values by virtue of their nationality. We are aware of the diversification of views within most national societies, and there is ample evidence of this in the ranks of international lawyers. At the same time, it would be myopic to minimize the influence of national positions on the views taken by the great majority of international lawyers. There is no need to attribute this identification of personal and national outlook to crass influences of rewards of power and privilege, although we have to recognize that these influences do play a role. But such practical considerations may not be as important for most international lawyers as is the general phenomenon of internalization of social values shared by those brought up and educated within the same national society. In this sense, conformity to national aims may be seen "not as a duty, only a necessity'' (to borrow from Mr. Justice Holmes). A corollary of this inherent parochialism is the recognition that a less biased (and therefore more credible) judgment on controversial issues of international law would more likely be made by a broadly representative international body than by persons from a single country or by persons sharing a particular political outlook, however expert they may be. Yet this conclusion, plausible as it is, does not quite dispose of the problem. We must still face the question of what is meant by an unbiased or objective judgment when conflicting values are at issue. The idea of objectivity presupposes that there are propositions of international law which are capable of being judged by relevant standards of truth and tested by empirical evidence. It assumes that the question of whether a proposition is legally authoritative can be answered as a scientific question in respect of its truth or falsity. It also assumes that the criteria of truth or falsity have been accepted by those called upon to resolve the issues. These assumptions find their support, as we know, in the general acceptance of the main "sources" of international law: agreements, custom and general principles of law. Each of the categories provides very broad criteria for evaluating empirical evidence and reaching conclusions of fact. At least, this is true in principle. In actuality, general agreement on sources does not always extend to the more precise formulations that are often required to resolve concrete disputes. We need only look at the International Court of Justice cases and advisory opimons, where ample evidence of divergent formulas accepted by the majority and by dissenting judges indicates that much of the agreement on criteria (or "sources") exists only on a fairly general
175
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level. At closer quarters, different versions of the standards of decision emerge. Thus, there are variations to the degree of generality required to prove customary law,3 or as to the requisite evidence to show opinio j ~ r i s or , ~ as to whether bilateral settlements are indicative of practice accepted as law.' What often happens in such cases is that the international lawyers turn to other principles-especially those of a highly general and fundamental character. Common examples are sovereignty of states, equality of rights, territorial integrity, nonintervention in d01llestic affairs, good faith and reasonableness, pacta sunt servanda, the obligation of pacific settlement and the broad rules of state responsibility. The availability of these principles and the ease with which they can be used to support one or the other side of any issue produce an impression of indeterminancy and relativism. It may seem as though any side of an issue in dispute can find support in authoritative principles. Even independent scholars will often appear to be reaching their conclusions on the basis of their preferences for a particular outcome rather than by the objective application of accepted principles. The only way this impression of relativism can be counteracted is through a disciplined and reasoned application of competing principles, including those expressing fundamental values, validated by evidence of practice and consensus in international society. I would not assert that such disciplined and reasoned application, and empirical validation, always takes place when nonofficial bodies or legal scholars consider controversies. I am only suggesting that the fact that the issue involves choices among competing principles of a highly general character and that there is no agreed overriding principle to resolve the controversy does not necessitate or justify subjective standards. Consequently, I believe there is a basis for objective judgments by lawyers of diverse views who are independent in the sense that they are not bound by government instructions and need not be governed by political interests. Such jurists will not be entirely free from their own values or their perception of the values of others. But even though human beings may not entirely escape their bias, it does not follow that the choice to be made is logically a subjective matter, as if it were a question of taste. The point is that a judgment among competing principles by an independent jurist can be made and justified on grounds that are valid for the relevant community of states, rather than on grounds held by the individual alone, or by his 3 North Sea Continental Shelf Case, [I9691 I.C.J. 3,434,226-29. See also the separate opinion of Judge Dillard in United Kingdom-Iceland Fisheries Jurisdiction Case. [I9741 I.C.J. 3, 57-58. 4 Columbian-Peruvian Asylum Case, [I9501 I.C.J. 266.27677. 5 Barcelona Traction. Light and Power Co. Case (Belgium v. Spain, 2d phase), [I9701 I.C.J. 3, 40.
Non-State Actors and International Law
International Lawyers g~vernment.~ This, at least, is the position that must be taken by international lawyers who are acting as nonofficial experts and not as advocates of a government or special interest.
INTERNATIONAL LAWAS
A
UNIFIED DISCIPLINE
The conception of the invisible college implicitly assumes that the field of international law is a unified discipline, notwithstanding its wide range of subject matter and its many subdivisions. This assumption appears to be accepted by the profession generally, as shown by the willingness and ability of most members to address themselves to the questions raised in all fields and to avoid compartmentalization. That such generalism has continued to be the case may seem suprising when we contrast it with the trends in the natural and social sciences. In these disciplines, there has been a marked tendency to break up into subdivisions and, within such subdivisions, into smaller sections devoted to specialized areas of subject matter or methodology. This has been true for some time in the natural sciences-physics, chemistry, biologyfrom which generalists have all but disappeared. It also has become increasingly prevalent in the social sciences-notably in economics, sociology and political science. The specialization and division of labor that have occurred in these sciences largely reflect the different techniques of investigation and the different kinds of conceptualization mastered by the specialists. Such specialization has had the significant result of producing a situation in which the findings and judgments of the specialists in their fields of expertise are virtually unchallenged and largely unexamined by those outside those particular fields. One consequence is that scientific societies and institutes throughout the world function through subsections (and in most cases through increasingly fragmented subsections), and it is only within those restricted units that one finds a genuinely collective endeavor. Should we expect-and even encourage--a similar development toward specialization in the study of international law? My own view is that this is not likely in the near future, nor is it desirable. Certainly those who devote themselves intensively to particular problems will make useful contributions by virtue of that specialization. But it remains both desirable and feasible to have their conclusions subjected to the judgment of international lawyers outside of the specialized field. This is so, because unlike the situation in many sciences, conclusions in international law do not involve the use of such specialized techniques of inquiry as 6 For discussion of an analogous situation in which a similar position is taken, see D. HAMMARSKJ~U), THE~ ~ T E R N A ~ O NCIVIL A L SERVANT IN LAWAND IN FA^ (1%1), reprinted in 5 PUBLIC PAPERS OF THE SECRETARIES-GENERAL OF THE UNITED NATIONS471 (A. Cordier & W. Foote eds. 1975). For a more general treatment of problems of impartiality, see T. FRANCK. THESTRUCTURE OF IMPARTIALITY 12062.242-89 (1968).
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to be beyond the knowledge of international lawyers. Nor would such conclusions involve theories (as in physics) which have to be accepted as authoritative by those outside of the specialized field. Consequently, the criteria for passing judgment can be applied by nonspecialists on the same evidence that is available to the specialists. For example, the empirical data of relevant state practice can be checked and evaluated without recourse to esoteric procedures of investigation. It is therefore not necessary to defer to the authority of the specialist in regard to such data (as it often is in the natural sciences). For that reason, it is feasible for international lawyers as a class irrespective of specialization to take part in the communication and collaboration that define their invisible college. Such collaboration may even modify the division between public and private international law. There is, no doubt, a widespread tendency in most countries to treat the two fields as separate and distinct. However, international developments and the expansion of transnational contacts have clearly tended to produce a greater mingling and blending of the two branches of international law. It is evident that in the newer fields of concern-as, for example, multinational companies, environmental regulation, resource development, international communications, protection of human rights, problems of nationalization and state trading-there is a recognized need to extend and apply concepts, principles and procedures from both public and private law. These recent developments lend support to the positions of those international lawyers who have maintained that a sharp separation between public and private international law is unwarranted and frustrates adequate consideration of issues that should be dealt with from a comprehensive juridical ~tandpoint.~ It would seem especially timely in the light of the issues mentioned above that the professional community of international lawyers reduce the gap between the two domains and consider both areas whenever appropriate. The idea that international law is a unified discipline must, of course, face up to the dominating influence of national interests and socio-historical factors on the functioning of the profession. We have observed earlier that judgments of international law tend to be more credible and authoritative when made by an internationally representative body than by a national or "like-thinking" group of experts. This leads to the conclusion that the professional community of international lawyers should aim at a wide international participation embracing persons from various parts of the world and from diverse political and cultural groupings. In practical terms, this would entail a much more extensive exchange of views through publications and meetings and a more sustained effort to take account of the positions and practices of states in all parts of
'
C. JENKS,THECOMMON h W OF MANKIND 17 (1958); P. JESSUP,TRANSNATIONAL LAW 15-16 (1956); Battifol, L'avenir du droit international prive' in INSTITUT DE DROIT INTERNATIONAL, LIVRE DU CENTENAIRE 1813-1973: EVOLUTION ET PERSPECTIVES DU DROIT INTERNATIONAL 162 (1973).
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the world. The justification for this is not merely that the process of reaching solutions to complex problems can be improved by having many points of view, though this may be generally true. The principal justification is that the issues faced in international law (unlike those faced in natural science) require answers that reflect global positions and actions.
The very heart of the endeavor is the inquiry into the common elements of practice and opinio juris manifested in the worldwide community of states. The search for these common elements comes down to questions of fact. It therefore may be said that such facts can be ascertained by objective inquiry carried out by impartial experts, whatever their national rig in.^ There is some merit in this contention and one cannot deny that there are disinterested and disciplined scholars who can reach conclusions in an impartial manner. However, when we consider the role of the professionalcommunity of international lawyers-our invisible collegethe desirability of a broadly representative quality is evident. The reason is essentially the same as that which underlies the requirements in the statutes of the International Court of Justice and the International Law Commission that international juridical bodies should be representative of the world as a whole. It rests on the probabilistic judgment that, whether or not an ideal objectivity is theoretically attainable, the individual jurists are likely to be affected by national or other particularistic factors linked to their origin and background. A more heterogeneous and representative body can be expected to balance out those particularistic influences and avoid the misperceptions and omissions that accompany them. These reasons are as applicable to the invisible college of international lawyers as they are to official legal bodies. Our discussion of the professional community of international lawyers has thus far focused mainly on their role in ascertaining and formulating existing law-the lex lata. This function, more than any other, is regarded as appropriatefor professional opinion of a nonofficial character based on objective evidence and disciplined reasoning. We should be mindful, however, that international lawyers, both individually and as a group, play a role in the process of creating new law and in extending existing law to meet emerging needs. This legislative role is carried out principally through multilateral treaties, but it may also be accomplished through the evolution of customary law, the use of general principles and the formative effect of resolutions of international bodies. In all of these processes, the professional com~uunitymay perform a significant function. It is interesting to consider some of the problems raised. -
-
See Schachter, Towards a Theory of International Obligation, 8 VA.J . INT'L L. 300, 316-21 (1968). reprinted in THE EFFECTIVENESS OF INTERNATIONALDECISION 9 (S. Schwebel ed. 1971). 8
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NORTHWESTERN UNIVERSITY LAW REVIEW A threshold issue is whether international lawyers as a group have the professional competence to consider the need for a new or revised law on matters which are of a nonlegal character-political, economic, technological and so on. It is in fact widely believed that questions of that kind are more appropriately within the competence of other social sciences-political science, economics, international relations-insofar as nonofficial inquiry and opinion are concerned. Plausible as this point may seem, it suffers from a major defect-the social scientists do not, as a rule, address themselves in any detail to the need for new law or to the kind of analysis that is relevant to the legislative need. The main reason for this is that their work is either descriptive or theoretical. Scholars in these fields are concerned with examining behavior, but they are concerned only marginally, if at all, with the development of normative juridical regimes or specific rules. Whie soci,al scientists have contributed much to our understanding of international developments, they have had little interest in the specific legislative problems created by changing international needs and pressures. In contrast, we may note that in fields such as outer space, the sea-bed and the environment, the international lawyers, far more than any other disciplinary group, played a central role in constructing normative and regulatory schemes where little had existed previously. It can be argued that the lack of concern among other professional groups or scientific disciplines in international regulation is not a sufficient reason for jurists to assume a responsibility for which they are not equipped. There is some merit in this point. The traditional traimng and preoccupations of most lawyers may not provide an adequate basis for the kind of broadly based inquiry into needs and possible solutions in areas which are economic, political or technical. But it is also pertinent to recall that in many national legislative inquiries, the lawyer is recognized as the appropriate "generalist" for carrying out the necessary investigation into needs and legal solutions. In these situations, lawyers perform an organizing and critical role by gathering and scrutinizing relevant data and opinion from a wide variety of sources. I do not suggest that this role can be performed only by lawyers, or, that they can necessarily carry it out better than others. My point is that no other professional, nonofficial group performs this function on the international level (or seems likely to do so in the near future). Moreover, international lawyers-because of their professional interest in law-have skills and experience to enable them to contribute to the prelegislative task. Examples of such legislative contributions are found in the work of such international professional groups as the Institut de droit international (on outer space, the laws of war, pollution) and the International Law Association (the Helsinki rules on international rivers and on the sea-bed). It is, of course, obvious that work of this kind must extend far beyond the usual lawyer's analysis of
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International Lawyers
legal rules and precedent with its implicit assumptions about causal relations and the ends to be served. In order to carry out the international legislative task in an adequate manner, it is essential that nonlegal materials be examined and evaluated, and that expertise in nonlegal fields be drawn upon and utilized in a comprehensive manner. Experience has shown that this can be done by international lawyers through informal means, but much room remains for systematic collaboration with other scientific and professional groups. Another issue raised by the participation of international lawyers in the legislative task concerns the relationship between the nonofficial activities of the profession and the official bodies engaged in the preparation of international conventions or other instruments of legislative import. One aspect of this relationship involves the phenomenon, alluded to earlier, of jurists moving between the nonofficial and official roles and through this "dedoublement fonctionnel" contributing to the mutual exchange and penetration of ideas. In addition, the nonofficial professional community may have a twofold impact on the adoption of new multilateral instruments. First, it may facilitate the building of an international consensus during the preparatory stages of a legislative effort. This can be done through dissemination of studies and proposals, augmented by reports and resolutions of professional bodies. Second, the international legal community may help to achieve the acceptance of a multilateral instrument by national parliamentary and executive bodies. Most governments, facing difficult choices, are likely to be influenced by professional opinion expressed through their societies and leaders. While the role of national legal associations may be more influential at this stage, the expression of an international consensus by the professional community may well have a persuasive effect in many cases. One last point merits attention in regard to the law making role of the professional community of international lawyers. That may be summarized as a traditional concern with the requirements of "la conscience juridique," sometimes translated as the sense of justice. Vague as that conception may seem, it has had a considerable influence in doctrine and in decisions as a basis for legal concepts of significant practical effect. Some examples that come to mind are reciprocity, good faith, abuse of rights, nonretroactivity, prescription, res judicata, proportionality and estoppel. These concepts are often treated as jural postulates or as exemplifying "natural justice." Whatever their justification, they have been applied by international lawyers in formulating general principles of law and in proposing standards for treaties and institutional arrangement^.^ There is good reason to conclude that such concepts have penetrated into official edicts, judgments and conventions largely through the nonofficial 9 W. FRIEDMANN, THECHANGING STRUCTURE OF INTERNATIONAL LAW188-210 (1964); H. Mosler, The International Society as a Legal Community, 140 RECUEIL DES COURS1,138-48 (1974); 0. SCHACHTER, SHARING THE WORLD'SRESOURCES passim (1977).
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professional community. Evidence of this can be found in the resolutions, reports and proposals made by the major professional bodies-notably, the Institute of International Law and the International Law Association-which have influenced the evolution of international law during the last century." Since the governments of the world are likely to be ambivalent about "la conscience juridique," the role of the nonofficial community of lawyers in giving that conception specific meaning and effect may well constitute the noblest function of our invisible college. 10 See De Visscher, La Contribution de I'lnstitut de Droit International au dtveloppement du droit international, in I N ~ T UDET DROIT INTERNATIONAL, LIVRE DU CENTENAIRE 18731973: EVOLWT~ON ET PERSPECTIVES DU DROIT INTERNATIONAL 128 (1973); Hambro, The Centenary of the Institut de Droit International, 43 NORDISKTIDSSKRIW FOR INTERNATIONAL RET 9 (1973); Miinch, L'influence de I'lnternational Law Association sur la doctrine et la pratique du droit international, in THEPRESENT STATE OF INTERNATIONAL LAWAND OTHER ESSAYS23-36 (M. Bos ed. 1973).
Part I11 Participation by Non-state Actors in International Legal Processes
Law-Making
NGOs, THE INTERNATIONAL CRIMINAL COURT, AND
THE POLITICS OF WRITING INTERNATIONAL LAW Michael J. Struett*
1. Introduction The creation of the International Criminal Court (ICC) necessarily involves a modification of state sovereignty norms. Analytically, there are three dimensions to this modification. First, establishing a permanent ICC involves expanding the accountability of individuals under international law, lessening the ability of political and military leaders to hide behind the corporate personality of the state. Second, from the perspective of states-as-actors, an ICC imposes effective constraints on the ability of states to use force. Finally, the ICC limits the ability of powerful states to define what conduct violates international criminal law. Instead, the ICC creates an international prosecutor and judges to decide whether or not specific actions violate the laws of war. Left to their own devices, sovereign states likely would not have created an ICC that reduces their effective decision-making power in these ways. Formally, international law regulates the behaviour of states. Traditionally states have been the dominant players in drafting, adopting, signing, and ratifying international treaties and in developing customary norms. The Rome Statute of the International Criminal Court is constituted as a multilateral treaty.' Administratively, the ICC's
* Department of Political Science, School of Social Sciences, University of California, Irvine. E-mail: [email protected]. The author wishes to thank Cecelia Lynch, Nicholas Onuf, Etel Solingen, Wayne Sandholtz, Alison Brysk, Alison Renteln, Leah Fraser, and all participants at the Utrecht Roundtable, but especially organizers Wouter Werner and Ige Dekker for comments on this chapter. Thanks also go to all those who agreed to be interviewed for this project, and to the Institute on Global Conflict and Cooperation for providing financial support. 1. R.S. Lee (ed.), i7ze Intrmational Criminal Court: The Making of the Rome Statute, Issues, Negotiations, a d Results (The Hague, Kluwer Law International, 1999); W.A. Schabas, An Introduction to the Intmnalional Criminal Court (New York, Cambridge UP, 2001); The Rome Statute of the International Criminal Court, UN Doc.A/Conf.183/9*
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governing body is the Assembly of States Parties made-up of states that have ratified the ICC treaty (Rome Statute, Article 112). Yet non-governmental organizations (NGOs) played a crucial role in the discourse surrounding the drafting and negotiating of the ICC Statute's text.* This chapter examines the strategies used by NGOs to insert themselves into the process of drafting the ICC statute. I describe the way that NGOs discursive strategies shaped the elaboration of the substantive law that the International Criminal Court would be empowered to enf~rce.~ First, I explain the transformation of sovereignty inherent in the ICC project. I employ a constructivist analytic framework to analyze the interaction between pro-ICC NGOs, States, and the normative structure of treaty law. Briefly, I review the formal legal theory of state practice in treaty drafting, which makes almost no provision for participation of non-state actors. I then describe steps taken by NGOs during the discussion of the ICC Statute in order to contrast NGOs substantial actual role with their limited formal status. NGOs made creative use of the institutional structure of treaty drafting process in order to play a pivotal role in shaping the outcome of the ICC treaty, despite the formal limits on their role. Analyzing the NGOs' discursive practices allows us to account for NGO success in shaping the statute. Their use of principled discourse appealing to notions of fundamental fairness was persuasive during the ICC negotiations. NGO participation in the ICC dialogue was instrumental in securing a limited but powerful and potentially effective ICC. The Court's statute adopts early proposals from the NGO community on a number of issues that were contentious during the ICC debate. This degree of NGO participation in the creation of a major new institution of international law suggests a quiet revolution is occurring in the social practices of writing international law. is available at <www.un.org/law/icc/statute/romefra.htm> and is reprinted in Schabas and Lee. Schabas also includes the draft Elements of Crimes and the draft Rules of Procedure and Evidence, which were adopted without amendment by the Assembly of State Parties in New York, 3-10 Sept. 2002. 2. W.R. Pace, M. Thieroff, "Participation of Non-Governmental Organizations", in Lee (note 1); F. Benedetti, J.L. Washburn, "Drafting the International Criminal Court Treaty", 5 Global Governance, 1999, 1-38. 3. This focus is driven by space limitations. Besides shaping definitions of crimes in the ICC statute, NGOs also contributed to the creation of an independent prosecutor and shaped the Statute's complementarity provisions, as well as most other parts of the statute. See M. Struett, "The Politics of Constructing an International Criminal Court", paper presented at the annual meeting of the International Studies Association, New Orleans, 24-27 March 2002.
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The judges and prosecutors of the new ICC will have significant powers to determine whether or not particular events can be classified as violations of international criminal law. The sovereign rights of states are not gutted by the ICC Statute. But they are transformed. States remain primarily responsible for enforcing international criminal law under the complementarity provisions of the ICC statute. But in order to ensure that serious atrocities would not continue to go unpunished because the relevant states were unwilling or unable to act, states accepted that the new international institution should have substantial powers.+ The International Criminal Court will be a permanent standing court and the prosecutor with the permission of judges of the pre-trial chamber is authorized to bring charges on her own a~thority.~ This procedural independence means that decisions to prosecute are at least partially isolated from the short-term political pressures of interstate politics."tate's behaviour in constructing an ICC with these powers can only be understood in the context of NGO discourse. The outcome of the Rome ICC treaty conference was driven by a discourse that was oriented towards creating the widest possible normative consensus to support the new court. The relatively disinterested nature of NGOs allowed them to shape and contribute to this discourse in a way that was morally resonant; consequently they were influential. Pro-ICC NGOs oriented their discursive practices towards a universal audience by promoting a court that corresponded with notions of fundamental fairness. By contrast, state governments often are constrained from taking such a universal stance by the need to be responsive to particular interest groups in their national political contexts. During the debate on the Rome statute, many participants understood that they were creating a judicial institution that could potentially endure for generations. In that context the NGOs' choice of a rational, universally oriented discursive strategy was particularly successful. Antonio Franceschet has noted that the responsiveness of international organizations to the justice claims of non-state actors is 4. For an authoritative review of the provisions of the Rome Statute and the text itself, including a discussion of the central complementarity provisions, see Lee (note 1). 5. See Article 15, The Rome Statute of the ICC (note 1 ) . 6. Though making arrests and transferring suspects to the ICC may not be so isolated from political pressure, because the court will rely on states for these functions. Judges are not normally eligible for reelection. (Article 36, Paragraph 9, ICC Statute, note 1).
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frequently poor, since those organizations are nearly always based on statist organizing principles.' The effectiveness of NGOs during the ICC negotiations suggests the possibility that - at least under some circumstances - NGO voices can ameliorate the legitimacy crisis of the institutions of global governance. But caution is warranted; the circumstances that led to successful NGO input into the drafting of the Rome Statute were somewhat unique, and may be difficult to replicate in other issue areas. For example, in the technically complex policy area of global climate change Gupta in this volume notes that sometimes the cacophony of NGO commentaries on the official statements of governments during multilateral negotiations may lead to information overload rather than ~ l a r i t yGupta .~ argues that resource advantages of organizations with English speakers and wealthy corporate or Western membership backing may have the effect of biasing the direction of outcome of negotiations in favour of developed countries." Still, the ICC experience suggests that under some circumstances, principled Western-based NGOs may partner with resource poor interests in the developing world, in a way that increases the overall representa&eness of international treaty negotiations. NGO access to the negotiation sites and official documents made it easier for any observer, even groups without a delegation to the conference, to follow the issues in the ICC negotiations. The ability of a variety of NGOs to offer multiple public interpretations of proposals in real time increases the transparency of the discussions, even if other groups are unable to participate because of financial, language, or practical barriers. The successful work of NGOs in shaping the Rome Statute for the International Criminal Court provides a model for a way that NGOs might attempt to play a similar role in other international issue areas, thereby increasing the extent to which nominally interstate negotiations reflect a plurality of views from global civil society.
7. A. Franceschet, 'Justice and International Organization: Two Models of Global Governance", 8 Global Govmance, 2002, 19-34. 8. For discussion of another recent case where international NGOs played a role in the construction of a new multilateral institution, the European Monetary Union, see F. van Esch, "Defining National Preferences: the Influence of International NonState Actors", in Arts, Noortmann and Reinalda (eds.), Ron-State Actors in International Relations (Aldershot, Ashgate, 2001). 9. See the contribution by Gupta this volume (Chapter 11).
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2. Soverepp issues with the International Criminal Court The notion that individuals can be held criminally responsible for violations of international law challenges historically predominant conceptions of state sovereignty in world politics. Specifically the old
norm that state officials engaged in official acts are always immune from the jurisdiction of foreign states (or supranational courts established by such states) has lost its validity. More broadly, the concept of the ICC modifies the Westphalian conception of political sovereignty that gave states the right to use force internally as they saw fit and externally with nearly as much autonomy when the goal was self-preservation. International law is generated by states and is primarily a set of rules about how states are to interact with one another. S~verei~gn states, though, are an abstraction ultimately composed of individual human beings. Because states are composed of people many writers on international law now recognize a more diverse list of subjects of that law."' The concept of an ICC brings into full relief the debate about who is obligated under international law norms. In the area of international criminal law, it has long been established that individuals can be held responsible for their acts." Nevertheless, creating a permanent court with jurisdiction over such crimes greatly increases the likelihood that punishment will actually occur.12 The international criminal court also modifies political norms of state sovereignty. The four classes of crimes over which the ICC has jurisdiction all restrict the ways states can use force.'"olding
10. H. Lauterpacht points out that Grotius recognized that rules governing the conduct of states are necessarily rules that govern the conduct of individuals, this is a logical necessity because "[Blehind the mystical, impersonal, and therefore necessarily irresponsible personality of the metaphysical state there are the actual subjects of rights and duties, namely, individual human beings." R. Falk, F. Kratochwil, S. Mendlovitz (eds.), Intonational Law (Boulder, Colorado, Westview Press, 1985). 11. JJ. Paust et al., Intonational Criminal Law (Durham NC, Carolina Academic Press, 2000); S.R. Ratner, J.S. Abrams, Accountabilip for Human Rights Atrocities in International Law: Bqond the Nurmbe?g. Legacy, 2nd ed. (Oxford, Oxford University Press, 2001). 12. See the contribution by Arnann in this volume (Chapter 7). 13. The four crimes are Genocide, Crimes Against Humanity, War Crimes, and Aggression. Significantly, the Court will not exercise its jurisdiction over the crime of aggression until the states party to the Rome Statute agree on a definition of that crime at a review conference scheduled for 2009 (Articles 5, 121 and 123, the Rome Statute, note 1). Of course, non-state actors can also commit these crimes.
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individual state officials responsible for these crimes challenges the ability of states to define the legitimate use of force, a phvilege traditionally at the core of the sovereignty idea. Historically, this was the major political barrier to creating a permanent ICC.I4 Because the ICC creates a credible possibility that a state's political or military officials will be individually punished for using force in ways that violate international humanitarian law or international human rights law, it will necessarily alter the decision-making calculus involved in the choice to use force. This will restrict the willingness of states to use force. Viewed from the other side, the ICC will protect the sovereign rights of states not to be the victims of force used in ways that violate international criminal law. This is why the ICC must be understood as tramfming state sovereignty norms, not destroying them. Creating international law is a power reserved exclusively for states under formal sovereignty norms, so the process used to establish the ICC raises sovereignty - . issues as well. How was the ICC created, and who was represented in that constitutional process? The use of a treaty conferenceto create the ICC, and the fact that the conference was concluded by a vote, was one factor that led the United States initially to oppose the Rome Treaty.15 The degree of NGO participation in a treaty conference with a mandate to establish a new organ of global governance was unprecedented, and effectively increased the range of voices that were able to participate.I6 The ICC's founders also had to determine what law the court should enforce. There is no formal legislative body in the international system. Both customary and treaty based international law criminalize specific acts. However,
14. B.B. Ferencz, An International Criminal Court: A Step Toward World Peace-A Docummtaty Hktoty and A n a b k , 2 Vols. (London, Oceana Press, 1980). B.B. Ferencz, "An International Criminal Code and Court: Where They Stand and Where They're Going", 30 Columbia Journal of Transnational Law, 1992, 375-399. 15. One reason why an ICC was not proposed as a charter amendment to the UN was the fact that such a process would face Security Council veto. However, even in the context of a multi-lateral treaty conference, the United States felt that decisions should only be taken by unanimity, and the US was somewhat taken aback that 120 countries outvoted the US, China, and five other states and proceeded to open the ICC Statute treaty for signature, L.N. Sadat, S.R. Carden, "The New International Criminal Court: An Uneasy Revolution", 88 7hz Georgetown Law Journal, 2000, 381-474. 16. However some degree of NGO participation is not a new phenomenon, C. Lynch, Beyond Appeasemmt: I n w e t i n g Intenoar Peace Movemolts in World Politics (Ithica, Cornel University Press, 1999); and the contribution by Gupta in this volume (Chapter 11).
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these prohibitions were insufficiently specified for use in a criminal court. The Rome Statute addressed that problem by carefully defining a short list of core crimes, and excluding other crimes. This approach was advanced by Amnesty International and other NGOs in the year before the Rome Conference." This outcome in Rome was a
sharp departure from the 1993 International Law Commission [ILC] draft for an ICC. The ILC draft did not attempt to define the crimes, instead it sought generally to grant the court power over existing provisions of treaty-based and customary international criminal law. The traditional sources of international law are controlled by state governments. The International Court of Justice Statute Article 38 formally recognizes four sources of international law: treaties, custom, general principles of law, and the subsidiary role of judicial decisions and the commentary of publicists. Sovereign states have control over the first two, since it is states that conclude treaties and custom refers explicitly to the practice of states. Since the general principles of law change only very slowly, states historically have exercised a virtual monopoly on the legislating of international law. This included the ability to determine in large part through custom what is considered a war cnme. Within the last century, the doctrine that only sovereign states can be the authors of international law has come under challenge."' To the extent that the resolutions of international organizations and decisions of international administrative bodies can have binding effects in law, at times by means of parliamentary style voting as in the Security Council, the General Assembly or other international bodies, this introduces an element in the source of law that is not directly controlled by states.Ig Still, states exercise influence here because it is almost invariably state governments that choose representatives to such international organization^.'^ The ICC, as a permanent judicial
17. Amnesty International, "The quest for international justice", London, A1 Secretariat, February 1997, A1 Index: IOR 40/06/97. 18. Falk, Kratochwil, and Mendlovitz (note lo), p. 205. 19. On the status of UN Resolutions as sources of international law see, 0 . Asamoah, 17re Legal Signgfcance o f the Declarations o f the General Assembb o f the United Nationr (The Hague, Martinus Nijhoff, 1966). But compare with 0. Schachter, "Resolutions and Political Texts", in Intanabnal Law in Theq and Practice (Dordrecht, Martinus Nijhoff, 1991), p. 88. On the importance of soft law see K.W. Abbot, D. Snidal, "Hard and Soft Law in International Governance", 54 International &ganization, 2000, 421-456. 20. The European Parliament is an important exception.
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body, has the potential to exercise considerable influence over the content of international criminal law, and the ICC's decisions will have precedential value, at least for future cases heard under the statute itself." Because the Rome Statute created a strong court that can avoid political interference, it also constituted a significant judicial power to decide what counts as a "war crime" with only minimal and indirect supervision from sovereign states. States were conscious that the court would have this power, and so they used the statute to carefully define the crimes over which the ICC would have jurisdiction. The United States sought an elaborate specification of the crimes, and insisted on a short list of crimes, excluding drug trafficking, terrorism, and the use of nuclear weapons; crimes that some states would have liked to include within the courts subject-matter juri~diction.'~ NGO participation in the ICC debate increased transparency and led to a wide distribution of the legal expertize necessary to follow this technical debate.'" The result was that while the Rome Statute does offer a careful definition of the crimes the ICC can prosecute, it does so in way that observers consider a progressive, if cautious, elaboration of existing international criminal law.'' The Statute avoided the problem of powerful states using the definition of the crimes to strictly constrain the authority of the new ~ o u r t . ' ~ 21. A. Cassese, "The Statute of thc Intcmational Criminal Court", 10 European Journal qf International Law, 1999, 144-1 7 1. As Cassesse makcs clear, Article 10 of the Rome Statute, which stipulates that thc Rome Statute is not intended to modify any existing provisions of international law for purposes other than those of the statute, does not block the ICC from following its own precedents. 22. See Comments Received Pursuant G A Resolution 49/53 on the Establishment of an International Criminal Court, Report ofthe Secreta?y-General, U.N. doc. A/AC.244/ 1/Add.P, 31 March 1995, 7-29), for an early statement of the US position. On the broader debate on the subject matter jurisdiction see H. von Hebel, D. Robinson, "Crimes within the Jurisdiction of the Court", in Lec (note I), pp. 79-126. 23. For instance, Amnesty International (note 17). A summary of a larger report circulated to all governments involved in the ICC negotiations clarifying the issues involved in the definitions of Genocidc, Crimes Against Humanity, and War Crimes discussed in more detail below. 24. H. von Hebel, D. Robinson, in Lee (note l), pp. 79-126; Ratner, Abrams (note 11), p. 212. 25. The attempts made by the United States and other governments to pursue such a strategy in the Preparatory Committee are described in C.K. Hall, "The Third and Fourth Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court", 92 AJIL, 1998, 124-133. C.K. Hall, "The Fifth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court", 92 AJIL, 1998, 331-339. Since the author Christopher
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3. NGOs and the social construction
of treag
law practice
Social constructivist approaches to international politics allow examination of the social processes that permit actors to redefine the meaning of their institutional environment^.'^ For constructivists, the
task for social science is to understand the historical context and contingent meaning of particular action^.^' As Ruggie notes, a crucial aspect of that task is to identify ideational factors that are reasons for actions as compared with causes of action^.'^ This analysis uses a constructivist framework. The advantage of this approach is the explicit recognition that the social world is composed of intersubjectively constituted social facts.'"ocial norms interpenetrate every aspect of social life, including world politics. It is clear to many observers that the anarchical pattern of relations between states does not mean that norms are unimportant in world affairs."" Norms shape the behaviour of all types of actors. Simultaneously, some actors consciously promote certain understandings of emerging norms to promote their own political goals. Institutions themselves are intersubjectively constituted and continually renewed or m~dified.~' While constructivists have used a variety of conceptual strategies I focus on an analysis for attacking the problem of inters~bjectivity,"~ of discursive practices. This choice follows from Friedrich Kratochwil's claim that an intersubjective grounding for rule systems can be guided by discursive practices that recognize the rationality of "the other"
Hall was thc lead ICC legal advisor for Amnesty International, and a member of the steering committee of the CICC, these publications should be understood as one of the most effective lobbying efforts of the Coalition, notwithstanding the scholarly venue of the publication. P. Kirsch, J.T. Holmes, "The Rome Conference on an ICC: The Negotiating Process", 93 AJIL, 1999; M.H. Arsanjani, "The Rome Statute of the International Criminal Court", 93 AJIL, 1999, 31-36 offer descriptions of the negotiations in Rome that dcrnonstrate that the NGO warnings on this issue were heeded by the vast majority of delegations. 26. J.G. Ruggie, Constructing the World Polio (London, Routledge, 1998); A. Klotz, C. Lynch, Constructing Won2 Politics (unpublished manuscript). 27. Ruggie (note 261, Chapter 1. 28. F. Kratochwil, Rules, Norms, and llecitions (Cambridge, Cambridge University Press, 1989). 29. Klotz, Lynch (note 26). 30. H. Bull, 7he Annrchual Sociep (New York, Columbia University Press, 1977); Falk, Kratochwil, Mendlovitz (note lo), pp. 45-6. 3 1. Ruggie (note 26); W. Powell, P. DiMaggio (eds.), %i Nm Institutionalism in Organizational Anah& (Chicago, University of Chicago Press, 1991). 32. Klotz, Lynch (note 26).
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and the universality of metanorms, such as, "do no harm"."3 Founding an ICC requires reaching intersubjective agreement about how such vague metanorms can be applied to specific human circumstances. The creation of international treaties is a social practice governed by a range of formal and informal norms. As I describe below, these norms formally restrict treaty-making to the duly accredited representatives of sovereign states. But in the case of drafting the ICC, NGOs played a substantive role in shaping the context of the treaty that far outweighed their formal status. Treating drafting is a core element of the idea of state sovereignty. However taken for granted state sovereignty seems at the present time, it remains an intersubjectively constituted reality." Biersteker and Weber write: Sovereignty provides the basis in international law for claims for state actions, and its violation is routinely invoked as a justification for the use of force in international relations. Sovereignty, therefore, is an inherently social concept.:'"
Thus sovereignty is a social fact. Traditional sovereignty norms did not recognize non-governmental actors as legitimate participants in treaty negotiations. The puzzle is to understand how a group of nongovernmental actors were able to create a space for themselves in the sovereignty discourse.
4. Status of states and NGOs in creating treap law Explaining the ICC's construction requires that we account for the fact that a large number of alike-minded-states"" came to see it as 33. Kratochwil (note 28). 34. ThJ. Biersteker, C. Weber, 7he Social Construct ofSta& Sovereigrq (Cambridge, Cambridge University Press, 1996). See also the contribution by Werner in the is volume (Chapter 5). 35. Biersteker, Weber (note 34), pp. 1-2. 36. The group of like-minded states that supported the establishment of a fair and effective international criminal court was formed during the early preparatory meetings at UN headquarters prior to the Rome conference. The group started with several members centered around Canada and Germany and grew to include over sixty states by the time of the Rome conference. They held 18 working luncheons at the German UN mission in New York during the ICC negotiating sessions held before and after Rome and including the first Assembly of States Parties meeting. CICC leaders frequently addressed these meetings.
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in their own interest to pursue a strong, independent, ICC." The court went forward in part because the United States and other great powers thought that a court under their control would be useful for strategic purposes. I show that the particular court that emerged was shaped by the civil society discourse of NGOs and not primarily by
qeat power policy. The empirical record in this case suggests that powerful states were not the actors that drove the outcome in Rome. Accordingly, this analysis is at odds with a strictly intergovernmental view of interstate cooperation as well as a positivist, statist view of the creation of international law. The constructivist approach adopted allows for an analysis of the political process that leads to the construction of state interests, rather than assuming those interests are self-evident.38 Positivist theories of international law maintain that states are the sole creators and addresses of international law, with the limited exception of international (governmental)organizations. The latter are viewed as having legal personality only to the extent such a result was intended by the states that created the organization." From a legal pluralist view of international law, space is opened up to consider the importance of non-state actors as legal entities4' Non-state actors play a vital role by working to implement transnational norms at the level of domestic legal systems, and both IGOs and NGOs play an important role in interpreting and implementing the legal mandates issued by states in the international legal order. Thus from a pluralist perspective, states clearly are forced to interact with other types of actor^.^' The institutional form of modern treaty law carefully defines the procedures that must be undertaken by sovereign states to create new treaties. Not surprisingly, these mechanisms are designed to ensure that each act creating treaty law, from the proposal and negotiation 37. In the language of rationalist International Relations Theory see D. Baldwin (ed.), Neorealism and Neoliberalism (New York, Columbia University Press, 1993). The problem is accounting for changes in state's preferences. 38. Ruggie (note 26), p. 19 offers a good brief review of constructivist research efforts that tackle this problem; see also H. Nau, At Home Abroad: Identip and Power in A k a n Foreign Policy (Ithica, Cornell University Press, 2002). 39. M. Noortrnann, "Non-State Actors in International Law", in Arts, Noortrnann, Reinalda (eds.), Non-Slate Actors in International Relations (Aldershot, Ashgate, 200 1), pp. 60-61. 40. See the contribution by Anders in this volume (Chapter 2). 41. Noortmann (note 39), pp. 61-62.
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of texts through to the ratification and entry into force, is carried out by formally recognized representatives of sovereign governments. Anthony Aust notes that the Vienna convention defines treaties as international agreements "concluded between states" but notes that IGOs also conclude treaties." Standard practice in treaty drafting shows states are jealous of their authority to negotiate treaties. To demonstrate the authority to negotiate international treaties, representatives are usually required to produce full powers.43 Full powers are defined by the Vienna Convention on the Law of Treaties as a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting, or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty. Full powers are distinct from credentials issued by a state to represent that state at a multilateral conference. Heads of State, Heads of Government, and Foreign Ministers are the onb individuals with the authority to issue full powers. Credentials permit a state representative to negotiate a treaty in the context of a multilateral conference, but they do not automatically grant the authority to sign treaties. In practice these two documents may be combined.44 Thus, states use elaborate procedures to confer the right to participate in the negotiation of treaty texts on their official representatives. No other actors can formally participate in treaty drafting. This formal theory of treaty law contrasts sharply with the informal degree of participation enjoyed by NGO representatives in drafting the Rome Treaty.
5. Reinterpreting the rules of treap writing The influence of NGOs on state decision-making at the international level has been a growing concern of the political science literature 42. A. Aust, Modern treap law andpractice (Cambridge, Cambridge University Press, 2000), p. 15. 43. Aust (note 42), pp. 57-65, pp. 60-62. Heads of state, heads of government, foreign ministers, and heads of diplomatic missions concluding treaties with the state where they are stationed are exempted from the requirement to produce full powers because of the inherent authority of their offices, and states may also mutually agree in some bilateral situations to dispense with requiring the production of full powers. 44. Aust (note 42), pp. 58-60, 62.
Non-State Actors and International Law in recent years.45 One aspect of particular interest in this literature is the way that NGOs have aided in the establishment of international organizations that have responsibilities for enforcing global norms.
6.
fie
power of NGOs
Why are NGOs powerful? What allows a small group of individuals representing organizations with only very modest budgets and small, often poorly compensated staffs to play such a definitive role in world politics? I argue that their power is a function of the extent to which NGOs are oriented to communicative action rather than strategic action.46Habermas' conceptual apparatus is useful because it captures the unique orientation of effective NGOs. Haberrnas notes that in modern secular society social integration depends on communicative action oriented towards a rational justification for normative rules, however, strategic actors paradoxically are inhibited in their ability to pursue such a normative dialogue oriented to reaching understanding because of their constant tendency to perceive situations in terms of their strategic preferences4' The pro-ICC NGO community is oriented towards producing a normative system that can be justified as having universal validity. NGOs discursive practices approach the ideal criteria for Rational Practical Discourse as developed by Robert Alexy based on Habermas' theory of communicative action.48 The central idea of these criteria is that it is possible to identify forms of normative argument that are objectively rational. Because the NGOs that advocated a permanent ICC were not centrally motivated by the pursuit of interests, they fulfilled a discursive need of modernity that Habermas identifies; producing normatively acceptable consensuses. Following the same line of reasoning, Boli and Thomas4' conceptualize the power of NGOs in terms of the authority carried in the 45. J. Boli, G.M. Thomas, Constructing IVorld Culture (Stanford, Stanford University Press, 1999); M. Keck, K. Sikkink, Activists Bgond Borders (Ithica, N Y , Cornell University Press, 1998); W. Sandholtz, A. Stone-Sweet (eds.), European Inkgation and Su~ranationalGovernance (Oxford, Oxford University Press, 1998); Lynch (note 16). 46. J. Habermas, 7he %ory of Communicative Action, V.1. and I1 (translation by Thomas McCarthy) (Boston, Beacon Press, 1984/ 1987). 47. Habermas (note 46), pp. 25-27. 48. R.A. Alexy, 'lheoly of Legal Argumentatiow %i %oly of Rational Discourse as 7heory of lep-a1Jwty'ication, R. Adler and N. MacCormick trans. (Oxford, Clarendon, 1989). 49. Boli, Thomas (note 45).
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emerging world society by volunteer experts who advance rational arguments to advance their solutions to global political problems.
7 . Inrtitutions, institutional change, and actors The adoption of the ICC statute is a case where there is institutionalization of the normative preferences of NGOs. The Rome Statute is not merely a policy outcome, now that it has been ratified it is to become an institution that will structure global politics in the future. Sovereignty and international law are socially constructed institutions. Sociological institutionalist theories recognize that because actors are embedded in multiple institutional contexts simultaneously they can choose from a number of strategies to pursue a variety of ends.50Neither the ends nor the strategies are predominantly determined by the prevailing institutional environments. For example as Friedland and Alford state: conceive of institutions as both supra organizational patterns of activity through which humans conduct their material life in time and space, and symbolic systems through which they categorize that activity and infuse it with meaning. . . . These institutions are potentially contradictory and hence make multiple logics available to individuals and organizations. Individuals and organizations transform the institutional relations of society by exploiting these contrad~tions.~' International law, including the law of treaties, is an institution of world politics. NGOs were able to make use of that institutional environment, even though it strictly limits the spaces available for the participation of non-state actors in formal terms. By using the language of international law, and developing technical expertize, NGOs were able to redefine international criminal law in a progressive way. This is similar to the way judges make policy everyday by interpreting existing statutes and previous judicial decisions.52Legal prescriptions 50. P. Hall, C.R. Taylor, "Political Science and the Three New Institutionalisms", XLIV Political Studies, 1996,936-957. For an application of such an approach to analyzing international security politics see E. Solingen, Rtgional &den at Centu7y's Dawn (Princeton, NJ, Princeton University Press, 1998). 51. See R. Friedland, R.R. Alford, "Bringing Society Back In; Symbols, Practices, and
Institutional Contradictions", in: Powell, Dimagio
(note
31), p. 232.
52. C.N. Tate and T. Valinder, fi Global Expansion ofJudici~1Power (New York,
New York University Press, 1995).A. Stone-Sweet, "Judicializationand the Construction of Governance", 32 Comparative Political Studies, 1999, 147- 184.
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in constitutions, statutes, and treaties, are normally underspecified for use when applied to new specific circumstances. Existing norms have to be extended and elaborated in order to cover situations that were unimagined when particular rules were first developed in the context of treaty negotiations or other legislative processes. NGOs entered this interpretive game by offering well-documented summaries of existing international criminal law in position papers that were distributed to state officials negotiating the text of the Rome Statute. In this way, their interpretations of existing law influenced the agenda of the negotiations and helped to define the terrain for debate about how the crimes should be defined in Articles 5 through 8 of the Statute. Supporters of a court recognized that in order to create a permanent supranational authority to prosecute war criminals, they would need to get those same state leaders who were protected by the doctrine of sovereign immunity to agree to give up that immunity. In order to do that, NGOs first had to gain access to a diplomatic game that has been limited to states. In doing so, NGOs transformed the institution of sovereignty from an obstacle into a mechanism that permitted them to have access to the discussions and shape the outcome.
8. NGO tactics: Expanding the discourse and legal expertise As a tactical strategy, NGOs sought to expand the discourse to allow the widest possible variety of actors to participate in the development of the ICC. Habermas' discourse principle states that "Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourse^".^^ In fact, every effort was made to allow the broadest possible participation in the dialogue that led to the Rome Statute and to proceed by consensus whenever possible." In every session of the preparatory meetings at UN headquarters in New York and at the Rome Conference itself, NGOs were allowed to participate in some capacity. Even when 53. Habermas (note 46), p. 107. 54. Personal communication with Adriaan Bos, Chair of the Preparatory Commission for the ICC Treaty Conference 1996-1998 (14 May 2002, The Hague). See d o the "Introduction" by Roy S. Lee in Lee (note l), p. 9 on the thinking within the Bureau that participation should be as broad as possible, which led to the establishment of a trust fund under UN Secretariat auspices which ultimately financed the attendance of 54 delegates from 52 States.
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specific meetings were closed to NGO representatives, they often quickly learned of the substance of such meetings from insiders. Frequently NGO summaries of what happened at such meetings came to be relied on as authoritative." NGO reports enabled more states with limited diplomatic resources to follow the multiple interlinked issues during the negotiations. NGOs also understood that broadening the number of state participants in the ICC negotiations would increase the number of states that would be likely to support the outcome. One NGO that was a leading member of the pro-ICC NGO coalition, No Peace Without Justice (NPWJ) went so far as to place legal scholars with expertize in international criminal law on the delegations of developing states to the Rome meeting. NPWJ organized a zero-budget programme that enabled the foreign ministries of states without adequate legal counsel on ICC issues to review the curriculum vitae of persons with appropriate legal expertize willing to serve on the delegations of such states. In many cases, these legal experts traveled to Rome and stayed at their own expense, but they were fully accredited as the diplomatic representatives of the states in question, and were issued full powers, including even the authority to sign treaties in the name of the state."" The effect of this was to allow a large number of states to follow the detailed legal negotiations much more closely than would have been possible without this legal assistance. The negotiations themselves were very complex and took place in various working groups, so delegations needed multiple members just to keep up with what was going This obviously raises the question of how effective such individuals could be at representing states that many of them have never visited, and the related question of how these individuals prioritized the views of the state they represented and the views of the NGOs
55. As with the climate negotiations, states involved in the ICC negotiations found that "informal informal" negotiations were sometimes necessary to promote frank discussion of issues without the constant observance of NGOs or other delegations. However, NGO legal experts who had developed reputations for personal expertise, and who also had extensive knowledge of various delegation's negotiating positions, often were informed subsequently about the substance of such "informal informals", or were able to infer their content from delegates' subsequent behaviour. Compare with Gupta in this volume. 56. Personal communication, Cynthia Fairweather, Legal Advisor for Sierra-Leone, 05/28/02 the Hague. 57. On the complexity and inter-linkages between the many issues, see Holmes, "The Principle of Complementarity", in Lee (note 1), pp. 41-43.
Non-State Actors and International Law that helped bring them to Rome. Anytime one person stands as the legal or political representative of a large group the actual social relationships involved are complex and m~ltifaceted.~~ Limited experience with the group represented is not an automatic bar to being a thorough and comprehensive spokesperson for the interests of that
group, but it may create difficulties, The delegates who participated in the Rome Conference through this programme saw themselves as legal counsel for a client, and therefore they felt and strove to fulfill a professional obligation to represent the views of their client notwithstanding their own views or those of their colleagues in the NGO m~vernent.~'States that participated in this programme broadly favoured the establishment of a fair and effective ICC. That is why NPWJ chose to work with them. Consequently, differences between NGO views and the views of state governments tended to be on questions of detail and not fundamentally different understandings of the goal of the negotiations. Often, government's instructions to these new delegates said only to promote a fair and effective court. This left these legal experts with a wide degree of latitude when working on the specific provisions of the statute. For instance, it enabled some of them to pursue a progressive definition of the crimes in negotiating Part 2 of the Rome Statutee60 One crucial aspect of NGO discourse that allowed NGO representatives to attain a respected and legitimate status in these negotiations was their constant efforts to ground their discursive claims in the expert knowledge of the existing state of international law." Leaders within the major NGOs in the pro-ICC coalition were aware that their legal expertize was the key to their being taken seriously as interlocutors in the ICC debate."' Delegates from states that played leading roles in the negotiating process in Rome have commented
58. H.F. Pitkin, The Concept ofRepresentation (San Francisco, University of California Press, 1967). 59. This is the author's impression based on interviews with three such delegates and others who worked with them during the Rome conference. 60. Personal communication, Eve La Haye, Legal Advisor for Bosnia and Herzegovina, 02/07/02 the Hague, and Cynthia Fairweather, Legal Advisor for Sierra-Leone 28/05/02, the Hague. 61. Many of these papers are available via the internet. See for instance <www.igc. org/icc/html/n.g.o..html> and <web.amnesty.org/web/web.nsf/pages/documents~. 62. Personal communication, Lars van Troost, Amnesty International, (3 May 2002, Amsterdam).
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that they found the legal provisions of the NGO papers very authoritative and useful during the negotiating proces~.~" Early in the preparatory negotiations prior to Rome, a consensus developed that the ICC should not attempt to create new international criminal law, but that the Statute should focus on specifying the existing provisions of law that the court would be empowered to enforce. NGOs deliberately formed their positions on particular ICC issues in the language of international law with extensive references to existing legal authorities. This discursive practice made them credible participants. While the treaty drafters attempted to avoid writing new law, this complex area of international law has multiple, sometimes conficting authorities. The fact that the Rome Statute codifies the core crimes under its jurisdiction in a cautious, but ultimately progressive way must be attributed in significant part to NGO interventions in the d i ~ c o u r s e . ~ ~
9. An opening for the ICC? Discourse in the 1990s The end of the Cold War reinvigorated the idea of an international court."' By 1990, much to the surprise of many observers, a broad consensus had emerged within the International Law Commission that there should be a supranational body with the power to try at least some sorts of international crimes.'"here was as yet no consensus about what crimes such a court could punish, under what authority it could be constituted, or what powers it should have. Many analysts were skeptical, even in the later half of the 1990s, that the leaders of the world's states would be willing to consent to the jurisdiction of an International Criminal court once they realized
63. Personal communication, Herman von Hebel, Legal-Counsel, the Netherlands, and Coordinator for the Definition of War Crimes, 17 May 2002 and Fabricio Guariglia, Legal Advisor for Argentina, 21 May 2002. 64. While there is widespread agreement amongst legal experts on this characterization of the substantive law embodied in the Rome Statute, see for instance Lee (note I), p. 38. 65. In the Cold War years a few lonely voices, such as Professors Ferencz and Bassiou~and one or two others held the torch aloft urging the creation of an ICC as a standing body. R. Rosenstock, "Remarks made at Pace University School of Law", 23 October 1993, 6 Pate International Law Review, 1994. 66. Ferencz (1992) (note 14), p. 390.
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that their own actions might one day be called to account by it.67 The use of force, both internally and externally is a significant part of what it means to be a state. Often, the bearing of arms by police officials and security forces is benevolent and helps to preserve social order. Government officials are the ones responsible for deciding
when force should be used, to quell a violent protest or mob, or to resist an external threat to security. Why would any state officials be willing to subject their own decisions on the use of force to review by a supranational authority that could put those officials in jail? Many violent acts that history has witnessed in the last 150 years are so morally abhorrent that states in Rome ultimately made the choice to establish a strong court. Michael Perry compellingly cites particularly horrific cases of man's inhumanity to his fellow beings to dispel the argument that standards of what is morally acceptable are hopelessly relative.@Such incidents have motivated the vast majority of states to accept the challenge to their own sovereignty inherent in the ICC. A tragic number of states in Africa, Asia, America, and Europe have experienced such atrocities within recent historical memory. Converting this difFuse sentiment into a new functioning global judicial authority was not automatic. NGOs used legal discourse to shape and push the development of the ICC at every turn. In 1989 a group of Caribbean states in the General Assembly (GA), led by Trinidad and Tobago, initiated an effort to put consideration of an international criminal court before the International Law Commission once again6"he main impetus for this proposal was the desire of these states to create an international body that could try drug traffickers those states were too weak to control on their own.70 The decision in the United Nations Sixth Committee to schedule a diplomatic conference to consider a statute for a permanent International Criminal Court was taken by consensus. The United States supported the move at the time, and-even China did not want 67. B. Broms, "The Establishment of an International Criminal Court", Israel Yearbook on Human Righghts, 1995, 146. 68. MJ. Perry, Moralih, Politics and Law: a bicentmnial essay (New York, Oxford University Press, 1988), pp. 61-64. This example is from the former Yugoslavia, but the twentieth century list of atrocities is long. 69. T.C. Evered, "An International Criminal Court", 6 Pace Inwational Low R e o h , 1994, 12 1-158, 127. Perhaps this move was driven by concerns about the US invasion of Panama. Further examination of this linkage would be informative. 70. Interestingly, drug trafficking is not included as crime within the jurisdiction of the court in the Rome statute.
2 05
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to be seen as the only state opposed to going forward." Of course views on the specific powers and nature of an ICC remained quite varied at that point. At this early stage, the permanent five members of the Security Council continued to insist that the only grounds for an ICC to take jurisdiction over a case would be by Security Council referral, subject to the veto power. In the early years of the negotiations, during the Ad Hoc Committee meetings of 1995 and the first Preparatory Committee meetings in 1996, only around 60 states regularly took part. By Rome, almost every state in the world had representation. The NGO community took full advantage of the numerical increase in the number of states to advocate for what they consistently described as a fair and effective court. Fair meant that residents of states that happened to be permanent members of the Security Council could not automatically be exempted from the Courts jurisdiction. Western powers, including the United States, had their own strategic reasons for seeking an ICC with jurisdiction over individuals. Throughout the post-war period, the use of force by the United States in the world has been bedeviled by the problem of fighting wars with national groups when the fundamental problem was really with the leadership of a recalcitrant state. Examples include Libya's Muammar Quaddafi, Panama's Manuel N ~ r i e g a , ' Iraq's ~ Saddarn W ~ s s e i n , ~ ~ o m a l i a ' s Mohammed Aideed and of course, Yugoslavia's Slobodon Milosevic. In October 1990 Bush actually threatened Hussein with another Nuremberg style war crimes trial.74Thus for the US government, international prosecutions had some appeal by the early 1990s. By 1991, conflict erupted in Yugoslavia. As the presidential election in the United States got into full swing in 1992, the crisis unfolded in Yugoslavia. The US and the European powers were reluctant to become involved in the crisis. On 6 October 1992, the Security Council finally adopted a resolution creating a commission of experts 7 1. Personal communication with Adriaan Bos, Chair of the Preparatory Commission for the ICC Treaty Conference 1996-1998 (14 May 2002, The Hague). 72. After the US invaded Panama in 1989, Noriega was tried and imprisoned in the United States for violating drug trafficking laws. S. Albert, 7he Care Against the General (New York, Charles Scribners & Sons, 1993). 73. During the Gulf War, the Allied leadership emphasized that the conflict was with the "war criminal" Saddam Hussein, and not with the Iraqi people. Indeed, the US administration rhetoric was sometimes criticized for over personalizing the conflict between G.H.W. Bush and Hussein. 74. G.J. Bass, Stay the Hand OJVengeance (Princeton, Princeton University Press, 2000), p. 210.
Non-State Actors and International Law to investigate war crimes in the Yugoslavian conflict, but Britain and France, fearing that such investigations would make a negotiated settlement to the conflict impossible, obstructed the commissions work. Cherif Bassiouni, a member of the commission, was able to expand the commission's documentation of war crimes only by securing out-
side funds from the Soros and MacArthur foundations and the government of the nether land^.'^ 1993 was a banner year for advancing the cause of a permanent International Criminal Court that had been stalled for so long. In February, with the urging of the new UN Ambassador Madeline Albright, the Security Council finally agreed to create an International Criminal Tribunal for the former Yugo~lavia.'~ While Albright pushed for a strong court, this ad hoc court would be hampered for years by relatively weak support from the great powers. Richard Goldstone, the first chief prosecutor for the ICTY, credits NGOs with mobilizing public opinion thereby pressuring governments, and ultimately securing increased funding for the ICTY from the UN General Assembly. Without the public attention, the court would have failed early in its life.77Also, in October of 1993, the United States reversed its official position on the International Criminal Court from one of attempting "to prolong without progressing" debate on the ICC to one of committing "actively to resolve the remaining legal and practical issues" with establishing an ICC.78 The US never reached a point where it would accept a court that would have jurisdiction over US nationals without the case specific consent of the United States government. Since such a position is fundamentally incompatible with the notion that criminal law should apply to everyone equally, the United States position was ultimately
75. Bass (note 74), pp. 21 1-2; M.P. Scharf, Balkan Justice (Durham, NC, Carolina Academic Press, 1997). 76. Klaus Kinkel, Germany's Foreign Minister, proposed a tribunal for Yugoslavia, to avoid the need for armed intervention by Germany, and to prevent a split that would result between his party and Kohl's Christian Democrats. (Bass (note 74), p. 215 cites Cassesse, Path to the Hague, p. 67). 77. R. Gutman, D. Rieff (eds.), Crimes of War: what the public should know (New York, Norton, 1999), pp. 14 15. 78. M.P. Scharf, "Getting Serious About an ICC", 6 Pace International Law Review, 1994, 103-120. Scharf worked in the US Department of State, Office of the Legal Advisor from 1989-1993. While he argues he was a wordsmith for policy mandates from higher level State and Justice Department officials, others have described him as the "architect" of US policy. See Ferencz (1992) (note 14).
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rejected by the 120 nations who voted for the Rome Treaty. Explaining this outcome requires that we understand the impact of international non-governmental organizations on shaping the treaty process in Rome.
10. NGO contributions to the Rome Treap process The NGO community was able to capitalize on the political opening created by the end of the Cold War and conduct a world wide campaign to generate support for a strong court. At the Rome Conference itself, it was a broad based group of states, known as the like-minded group, who pushed the consensus positions of the NGO Coalition for an ICC forward. This group included Canada, Norway, Germany, Argentina, Australia, the Netherlands, Ghana, Egypt, South Korea and Singapore, whose delegates played major leadership roles. The like-minded group grew over time, and ultimately included over 60 states. Those states views had been shaped over the preceding years by members of the NGO Coalition for an ICC. I argue that the key to NGO influence was the nature of the discourse that these nonstate actors both participated in and helped to stimulate. Here there is only space to describe a few of their discursive acts to illustrate this point. I conclude by highlighting the way NGO positions on a few key issues were translated into the final text of the statute itself. In the early 1990s, only a handful of groups and individuals both inside and outside governments were actively working on the ICC i~sue.~"n July of 1992, Human Rights Watch called for an international tribunal to punish the perpetrators of war crimes and geno~ i d e . ~The ' World Federalist Association in the United States and their international umbrella group, World Federalist Movement decided around this time that they would actively advocate a permanent International Criminal Court as their priority issue. The World Federalist Movement has hosted the Coalition for an International Criminal Court since it was founded. William Pace of the World Federalist Movement invited leaders from 30 NGOs to participate in a meeting held at the United Nations 79. According to Bi Pace, the Convener of the NGO coalition, his legal assistant Bettina Pruckmayr was the only person in the world working full time on the International Criminal Court issue in 1995. Personal communication, 11 November 2000. 80. Bass (note 74), p. 2 10.
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after one of the early GA Sixth Committee debates on the International Law Commission's (ILC) draft ICC statute. These NGOs agreed to form the Coalition for an International Criminal Court (CICC). The central activity of the NGO CICC was and continues to be to serve as a clearing house for information, proposals, and arguments about the ICC, facilitated by NGOs who favour some type of permanent court. The complexity of the issues involved with specific technical proposals for provisions of the ICC statute made it difficult for many national governments to become aware of the process under way at the United Nations, let alone understand the implications of the decisions for their national positions. Members of the NGO Coalition engaged in direct lobbying efforts, produced position papers issued press releases, and published media editorials in a coordinated effort to inform states and the media on these issues. There were substantive issues that divided different member organizations within the Coalition. While members in the organization did not always agree on specific proposals about how the court should be constituted and what crimes it should prosecute, they all agreed that some sort of international criminal court was the best way to deal with the impunity that perpetrators of international law crimes have historically enjoyed. In order to facilitate the Coalition's work, an emphasis was placed on consensus. Pace said, "We agree on so much we shouldn't concentrate on what we don't agree on".81The result of this policy of the coalition was to facilitate an environment of cooperation and information sharing amongst the various member organizations of the NGO coalition, that magnified the effectiveness of each group. A crucial element of the NGO coalition's ultimate success was this orientation towards expanding the number of NGOs that took an interest in the ICC issue. For example, in October 1997, Human Rights Watch [HRW] issued an action alert addressed to other NGOs with basic facts about the ICC process underway at the UN, preparations for the Rome conference and HRW's reasons for supporting the ICC. The alert concluded with a specific set of tasks that other groups could undertake to raise awareness of the ICC, and offered strategy guidelines for creating national coalitions of interested organizations. There was a tremendous response to these outreach
i%
81. C. Trueheart, "Clout without a Country: The Power of International Lobbies", Wasllington Post, 18 June 1998, p. A32.
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efforts. The NGO coalition for the ICC grew from its initial 30 member organizations in 1994 to hundreds in the run-up to the Rome Conference and thousands after the statute was adopted and the campaign turned towards focusing on ratification effork8' The legal position papers produced by the NGO coalition had a tremendous agenda setting effect on the negotiations from the earliest Preparatory Committee discussions, to the Rome Conference and subsequent Preparatory Commission negotiations on the steps needed to make the court a reality. According to one member of the Rome Conference Bureau responsible for preparing the final Statute text, the NGO papers were extensively used, "I can tell you, talking about my own experience in the Dutch delegation, we used them in order to prepare our own views. The quality of many of those documents was extremely high, [they were] well-prepared and well-documented. There was quite a bit of an impact. Without their research the exercise would have been much more c~mplicated".~~ In particular, the legal papers produced by Amnesty International, Human Rights Watch, and Lawyers Committee on Human Rights are most often mentioned by participants in the negotiations as influential, although many other groups also produced documents which were read and used by some government delegations. It is not the case that any single NGO found every provision that they had sought in the final text of the Treaty. However, in the compromises made in the Statute on the major issues of how the court should be constituted, it is evident that the NGOs arguments were persuasive for the vast majority of delegates at the Rome Conference. A crucial international law difficulty in creating the ICC was the need to define the crimes with sufficient precision so that those acts that people broadly agree to be inappropriate could be deterred and punished, but without submitting the regular conduct of state officials to undue scrutiny. Of course, there was disagreement amongst states and other analysts about where such lines should be drawn. The discourse in the 1990s dealt with this underlying issue in a variety of ways. The relation of the courts jurisdiction to national courts, the subject matter jurisdiction of the court, and the procedural mech82. W.R. Pace, J. Scheme, "The Role of NGOs", in Cassesse, et al. (eds.), International Criminal Law: A Commentaly on the Rome Statute for an Intmational Criminal Court (Oxford, Oxford University Press, 2002). 83. Personal communication, Herman von Hebel, 17 May 2002.
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anisms for bringing matters before the court were all seen as mechanisms to manage the Court's inherent challenge to state sovereignty. Because these issues are interlinked, it became difficult to move forward on any one of these issues during the PrepCom meetings because governments positions on any one of these issues were contingent on how all the other issues would be res0lved.8~The following illustrations from the position papers produced by the NGO coalition and some of its member organizations illustrate the impact that their arguments had on the final outcome. Justice in the Balance, published by Human Rights Watch (HRW) in early 1998 in the run-up to the Rome Conference, is one of the more extensive statements of the argument in favour of a strong ICC published by a leading organization of the NGO coalition. It is an example of NGO discourse that identified problems with the fundamental fairness of some of the proposals under discussion for the ICC. The book's introduction includes recommendations to make the ICC an independent, fair and effective judicial institution.'The fact that all of these recommendations were implemented in some form in the statute is considerable evidence of NGO efficacy.86 Briefly, as an example we can look at how NGO recommendations on the jurisdiction regime for the court impacted the overall negotiations. The first two HRW recommendations from Justice in the Balance argued that 1 ) the jurisdictional regime should eliminate any need for state consent (on a case-by-case basis) and 2) the court must be independent of the Security C ~ u n c i l . ~This ' was a response to US efforts to create a weak court early on in the negotiations. The United States used a variety of tactics to attempt to ensure that it could block the prosecution of US nationals if it so desired. One was to give the Security Council control over the ICCs jurisdiction by arguing that such crimes were inherently threats to international peace and security and therefore properly under Security Council authority. Initially, many nations objected that the SC was political 84. J. Holrnes, Th? Aurciple of Cornplemmkzn~,in Lee (note l), p. 43. 85. Human Rights Watch, Justice in the Balance (New York, 1998), p. 2. 86. See also Pace, Schense (note 82) for a summary statement of the NGO position before Rome. While the statute does make distinctions between crimes that can be committed in situations of international versus internal conflicts, it also provides for the ICC's jurisdiction over both types in some circumstances. For an extensive discussion of these issues, see Lee (note l), Chapter 2. 87. Human Rights Watch (note 85).
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and should not have such influence over the disposition of individual criminal cases.88 At the fourth Prep. Com. meeting held 4-15 August 1997 the Security Council issue was again debated extensively. The United States and France led the charge for Security Council control over initiating prosecutions, but the vast majority of nations rejected the notion. Singapore, a member of the like-minded group,""roposed the compromise that was ultimately adopted in the statute, that the Security Council could positively postpone any prosecution if it seemed necessary for the exercise of its UN Charter duties, but only for twelve months at a time and only with nine affirmative votes including all of the permanent fiveego As the Rome meeting approached it was clear that the issue of the Security Council's role in referring matters to the Court's jurisdiction was one of the major outstanding issues before the conference of plenipotentiaries. Christopher Hall played a lead role on Amnesty International's delegation to the ICC negotiations. Hall's brief article raised the issue explicitly in his conclusion on the pages of the American Journal of lntmational Law only weeks before the conference. The coalition for the ICC was vital on a great number of issues, but it particularly worked to remind the national delegations that Security Council oversight of case referrals could lead to a politicized court, and would be inherently unfair by protecting the permanent five and their friends. Hall noted after the 5th and 6th Prep Com. meetings that the "increasing effectiveness of the coordinated lobbying of the 3 16 members of the NGO Coalition for an ICC . . . was marked".g' The ICC coalition directly advocated the Singapore compromise." Louise Arbour, prosecutor for the ICTY and ICTR also made an address to the fifth Prep. Com. that was seen as having a
88. S. Suikkari, "Debate in the United Nations on the International Law Commission's Draft Statute for an International Criminal Court", 64 Nordic Journal of Zntenzational Law, 1995, 205-22 1, 2 13-4. 89. Pace, Scheme (note 82). 90. Hall (note 25, 1998), pp. 131-33. See Article 16, Rome Statute. Security Council Resolution 1422, July 2002, passed at US insistence, exercises this privilege not with respect to a specific conflict of concern, as the Statute's authors intended, but in a blanket way that seems to exceed the Council's own authority under Chapter 7 of the UN Charter. 91. Hall (note 25, 1998b), p. 339. 92. Personal communication, William R. Pace, Convenor, Coalition for an ICC, 10 November 2000.
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large impact on many delegations in which she pointed out that a weak court would be a "retrograde development" because it would be unable "to dispense fair justice" and would "exacerbate the sense of legitimate grievance of the disenfranchised"." The series of summaries of the preparatory negotiations prepared by Hall are written
as learned, objective accounts of the negotiations, but they must also be understood as pieces in Amnesty's overall campaign for the promotion of a fair and effective court. In writing these negotiation summaries for scholarly publication, Hall was able to draw attention to issues that Amnesty continued to feel were important. This also ensured that as the circle of delegates and policy-making officials involved in the process grew larger, consensuses that were reached in earlier stages of the negotiations could be widely explained and thereby preserved. The United Kingdom was the first permanent member of the Security Council to abandon the idea of strong Council supervision over the ICC. In part this policy change apparently came about because of new Prime Minister Tony Blair's desire to have a strong human rights based foreign policy. This raised the leverage of the human rights NGOs, because Blair, as well as other leaders, could not afford to bring home an ICC treaty from Rome that would not earn NGO support. There was also presumably pressure on both the UK and France to bring their positions into line with the common European foreign policy." Lars Van Troost who attended the Rome Conference with Amnesty's delegation recalled that in 1997 with ten EU members having joined the like-minded group, it was clear to all that the UK and France were holding back the EU c o n s e n s ~ s The . ~ ~ statements of the EU common position were noticeably weaker than the like-minded position, even though most European states clearly adhered to the stronger like-minded platform. In December 1997 the UK became the first permanent Security Council member to join the like-minded group. Both France and the Russian Federation eventually
93. Hall (note 25, 1998b), p. 339, i.e. those without friends amongst the permanent five. 94. It is interesting in this regard that the European Union does not seem to construct the British and French vetoes on the SC as being "their veto". Instead the majority of European nations seem to favour weakening the SC's role, at least as judged from the perspective of EU positions on the ICC. 95. Personal communication, Lars von Troost, Legal Advisor, Amnesty International, Amsterdam, 3 May 2002.
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came to support the Singapore compromise on the issue of the Security Council's relationship to the ICC. Three weeks into the Rome Conference, the meeting seemed to have reached an impasse over the Security Council role, with near consensus for the Singapore compromise, except for adamant continued opposition by a few nations, including the United States.96Only the final vote of the conference would demonstrate how isolated China and the United States had become on this issue.97 The other major provision of the statute that was debated in part to protect the sovereign rights of states was the procedural rules for the court to take jurisdiction. Michael Scharf argued that the consent of the state with custody of the alleged war criminal should be required before the ICC's jurisdiction could be exercised in each specific case." This is one of the issues that the United States sought to use to isolate itself from prosecution. Interestingly, Scharf relies on a report of the American Bar Association to argue that few states would be willing to have an ICC at all without this provision." In fact, only the US and China ultimately objected to the Rome Statute on these ground^.'"^ Scharf explicitly acknowledged that a provision requiring the consent of the state of the accused might diminish the effectiveness of an ICC, but argued that it was better than nothing. In fact it seems clear that a court that required the state of the alleged criminal's nationality to consent to jurisdiction on a case-bycase basis would have very little authority. The fact that the final statute avoided such a provision has to be seen in light of the rhetorical positions of the CICC members. They argued coherently, in a wide variety of forums, from a stage early on in the negotiating process that any court that required the state of the accused to consent to jurisdiction on a case by case basis could not truly dispense justice because it would be inherently politicized. On this issue, as with the other fundamental features of the Rome Statute, the NGO coalition's arguments prevailed because they were oriented towards 96. Kirsch and Holmes (1999) (note 25), 5. 97. F. Benedetti, J.L. Washburn, "Drafting the International Criminal Court Treaty", 5 Global Governance, 1-38, 1999. The US and China along with Israel, Iraq, Yemen, Libya, and Qatar made 7 nations total voting against the statute, there were 2 1 abstentions, and 120 votes in favour recorded. 98. Scharf (note 78), p. 114. 99. The ABA ultimately urged ratification of the Rome Statute. 100. Lee (note l), pp. 582-583, 633. These references are to the post-Rome statements of China and the United States.
Non-State Actors and International Law creating a discourse that could be normatively justified as producing justice for all. As further examples of the effectiveness of NGOs discursive strategies we can compare two of Amnesty International's legal briefs on the issue of the substantive law to be covered by the ICC, with the
final accord reached in the Rome Statute itself The Amnesty papers particularly relied on a strategy of offering definitive interpretations of the exictiqg provisions of international criminal law, based on treaties, custom, and prior court rulings, including those of the ad hoc tribunals. Their use of legal discourse is closely analogous to the process used by a common law judge to find precedents and legal authorities that support the conclusions the judge reaches in a specific case. In TAe Quest for International Justice: DeJining the Crimes and Dejimces for the International Criminal Court laid out Amnesty International's position in favour of including genocide, war crimes, and crimes against humanity under the jurisdiction of the court. Amnesty took no position on including the crime of aggression, hijacking, drug trafficking, and other crimes that some states sought to include under the jurisdiction of the court. They pointed out that it would be difficult if not impossible to reach international consensus on the definitions of such crimes, and that consequently ratification of the ICC statute might be delayed.''' Amnesty lawyers warned against an expansion of the definition of genocide beyond what is contained in the 1948 convention to include the destruction of political or social groups. They pointed out this could create two separate but parallel approaches to the crime of genocide in international law, with different standards under the Genocide Convention of 1948 and the new ICC.'O' Fairness dictated that such a situation should be avoided. If the definition of genocide was broadened to include political groups, then a much larger number of incidents would potentially be included under the definition of genocide. Deciding which to pursue and which to ignore would tend to politicize the office of the ICC prosecutor. By the time of the Rome Conference, there was a broad consensus amongst the delegates that the definition of genocide should be copied unchanged from the 1948 convention. Amnesty also worked to update the definition of crimes against humanity by ensuring that emerging 101. Amnesty International (note 17), p. 4. 102. Ibid., pp. 4-5.
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variations of crimes, such as "enforced disappearances" were specifically named in the Statute.'03 More importantly, a consensus was beginning to form around the idea of giving the court some sort of permanent or automatic jurisdiction over the three core crimes; genocide, war crimes, and crimes against humanity. Many states still sought to have other crimes, including aggression, terrorism, hijacking, the use of nuclear weapons, or drug trafficking included in the Statute. But as the meeting wore on, most states came to accept the NGO's pragmatic warning, that to insist on an expansion of the list of crimes would likely result in a failure to create a court at all in Rome. On the final day of the conference, 120 states set aside their desires for changes, and accepted the Bureau's compromise proposal that limited the ICC to the core crimes, but created a court with strong powers. Another Amnesty International paper published in April 1998, entitled % Intonational Criminal Court: Ensuring Justice for Worn,"' called on states to ensure that gender crimes would be specifically enumerated in the ICC Statute. The paper begins with an emotional account by a Kurdish women who was raped by Iraqi soldiers. From there, the paper turns to making a series of legal arguments about how specific acts against women are already criminal under existing provisions of international humanitarian law, with references to the appropriate authorities. The paper argues that rape and forced impregnation can already be acts of genocide if they are undertaken with a genocidal intent. Similar calls were made to specifically list gender based crimes in the definitions of war crimes and crimes against humanity. These calls were based in part on the emerging practice of the ad hoc tribunals. The result in the Rome Statute is clear, these provisions were included in the definitions of crimes after vocal NGO insistence.'05 One of the delegates who worked to include the war crimes provision was the legal advisor from Bosnia and Herzegovina who was recommended to the Bosnian Ambassador through the NPWJ programme described above. It is important to note that this person was not an NGO activist prior to or during the Rome meeting. She was a legal expert working on a doctoral dissertation at the London School of Economics on the definitions of crimes under international 103. Ibid., p. 6; Rome Statute Article 7.1 i). 104. Available from <www.arnnesty.it>. 105. Rome Statute, Article 6 d-e, Article 7.1 g, Article 7.2 f, Article 8.2 b xxii and Article 8.2 e vi.
Non-State Actors and International Law humanitarian law.'06 Her own views on the evolution of international criminal law were probably not shaped by the NGO papers circulated during the ICC negotiations. However, she was a state delegate in Rome, speaking on behalf of Bosnia because of an NGO programme, and her arguments carried the day in part because many
other delegations had been exposed to these arguments earlier by way of NGO papers circulated by Amnesty and other pro-ICC NGOs. The principled issues raised by the NGOs in the years and months prior to and during the Rome conference achieved widespread support in the final compromise. It should be clear that the NGO's countless written and verbal interventions, in formal and informal settings decisively shaped the final result on virtually every provision of the statute. Here I have discussed only a few examples. In hindsight, it is perhaps easy to underestimate the magnitude of what was achieved by the delegates in Rome. Five weeks earlier, it was not clear what law the court could enforce, what judicial procedures it could use and under what circumstances it would have jurisdiction. The technical challenge of merging so many different legal cultures remained immense. Many observers assumed states would not be willing to cede such significant sovereign rights and the negotiations would have to be postponed, as had happened before in the 1950s. The fact that 120 states found common ground, and that the compromise very nearly fulfilled the wish list of the members of the NGO coalition for an ICC must be taken as ample demonstration of the efficacy of these non-state actors in writing new international law.
1 1. Conclusions
NGOs played a crucial role in shaping the text of the Rome Statute for an International Criminal Court. In this case, the degree of agency exercised by individuals and private associations in writing international law is particularly stunning. NGOs defined the issues, prioritized items on the negotiation agenda, advocated text for treaty provisions, and identified the grounds for political compromise more effectively than the delegations from any single state.
106. Personal Communication, Eve la Haye, the Hague, 2 July 2002.
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I have argued that the NGOs were successful because of the nature of their normative discourse. That discourse was oriented towards finding a normative solution to the problem of individual impunity in the Westphalian state system. NGO calls for a fair and effective court so shaped the environment of the negotiations that only provisions which could be justified on those grounds had a legitimate chance of being accepted. NGOs that favoured a strong, independent and universal court recognized the opportunity that the international situation presented in the early 1990s. They developed their own arguments about the legal details of how a court should be created and who it should prosecute. Because their discourse was oriented towards creating a court that would be a truly universal institution, without making any unfair compromises to protect the interests of powerful states, their arguments were ultimately persuasive and compelling for the vast number of national delegations. Many of those national delegations representing minor powers and developing countries had little time to study all the issues and get up to speed on the tactical moves being pursued by the great powers. But the arguments and analysis presented by the NGO coalition allowed such states to follow the day to day developments and participate at decisive moments. Several characteristics of this issue may have contributed to NGO efficacy. Delegates were conscious that they were establishing a new legal institution that would presumably endure for some time. This probably made state delegates more willing to set aside the shortterm interests of their governments to consider the broad normative justifications put forward by NGOs. The context of drafting a supranational constitution, created an environment where, in the terminology of Habermas' discourse theory, actors may have been particularly open to rational arguments designed to appeal to a universal audience. NGO's legal expertise, and the general familiarity of standards for legal arguments amongst many of the delegates also contributed to NGO success. Still, the legal issues involved were extremely complex, and considerable disagreement amongst experts existed at the outset regarding the status of international criminal law norms. Given different national legal cultures, and a low level of knowledge about international criminal law amongst many governments, it is easy to imagine that consensus might not have been achieved. NGO discourse educated delegates about the state of international law, but that same discourse also elaborated the meaning of existing law in new ways, creating
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Non-State Actors and International Law consensus where there was none before. In this way, NGOs truly were the authors of new international law. NGO participation in treaty drafting rightfully leads to questions about who NGOs actually represent, and whether or not their own decision-making procedures are democratic. As NGO participation in global governance expands, pressure to limit the number of NGOs t h a t are a l l o w e d t o participate will g r o w . N o r m a t i v e l y , h o w e v e r , the
theoretical position outlined here suggests that accreditation of NGOs should remain as open as possible to any interested participants. This will tend to enhance the legitimacy of the outcomes. Determinations about the legitimacy of particular organizations and the transparency of their internal decision-making should be made in a decentralized way. States need not heed the recommendations of all NGOs equally; they should assess for themselves the quality of the information provided and the motivations of the speakers. This analysis has focused on a handful of major human rights NGOs that played leadership roles in the CICC. These groups were particularly effective because of their leader's expertise and their organization's established reputations.lo' The NGO coalition for an International Criminal Court self-consciously sought to bring about fundamental change in some of the most enduring institutions of international politics, including the traditional rules of sovereignty which give states broad, but not limitless, authority to use force as they see fit. States almost certainly would not have taken this step on their own initiative. NGO success in this case suggests that there may be future cases where nonstate actors can make use of the state-based institutional structure of international law to bring about transformations in the institutions of global governance. NGOs, through their discursive practices, can play a decisive role in the development of international law.
107. Many smaller NGOs, often organized only nationally in the developing world, also were particularly effective at lobbying their governments and in securing ratification decisions in their home countries. This success was driven in part by their cooperation with the international human rights NGOs that were the focus of this chapter.
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The Ottawa Convention Banning Landmines, the Role of
International Nun-governmental Organizations and the Idea of International Civil Society Kenneth Anderson*
Abstract Establishment of the Ottawa Convention Banning Landmines was regarded by many international law scholars, international activists, diplomats and international organization personnel as a defining, 'democratizing' change in the wag international law is made. By bringing international NGOs - what is often called 'international civil society' - into the diplomatic and international law-making process, mang believe that the Ottawa Convention represented both a democratization of, and a new source of legitimacyfor, international law, in part because it waspresumably made lfrom below. ' This article sharply questions whether the Ottawa Convention and the process Ieading up to it represents any real 'democratization' of international law, challenges the idea that there is even such a thing as 'international civil society,' at least in the sense that it is democratic and comes 'from below,' and disputes that there can be such a thing as 'democratic' processes at the global level. It suggests, by way of alternative, that the Ottawa Convention and the process Ieading up to it should be seen as a step in the development ofglobul trarunutional elites at the expense ofgenuinely democratic, but hence local, processes. * Associate Professor of Law. Washington College of Law, American University. Washington, I)(> [email protected]. Mr Anderson was previously Director of the Human Rights Watch Arms Division and General Counsel Lo the Open Sociely Instilute-Soros Foundations. He currenlly chairs the advisory board of the Open Society Institute Landmines Project, which funds activities in support of the international NGO campaign to ban landmines, and is a member of the advisory board of the Human Rights Watch Arms Division. Viewsexpressed are strictly his own. Thanks asever to David Rieff andJohn Ryle, and particular thanks to Jack Simon for taking over child care duties for his grandniece, Renee, while this article was being completed.
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1 Introduction: A Sea-Change in the International Legal Order? For many whose professional work is international public law and policy, the most significant legal events of the entire 1990s were the signing of the Landmines Treaty (the Ottawa Convention)' and the signing of the International Criminal Court (the ICC) statute (the Rome S t a t ~ t e )Even . ~ recognizing other key legal events during the decade, such as the establishment of the ad hoc Yugoslavia and Rwanda war crimes t r i b ~ n a l s ,for ~ many the Ottawa Convention and the Rome Statute especially epitomized fundamental changes in the nature of the international legal system changes that in a hundred years, perhaps, would be seen as the critical beginnings of a new international system. This enthusiasm is easy to understand. The Ottawa Convention represents the first time in over a century in which a major, traditional weapon system has been banned outright and not simply regulated in its use, by a treaty that has broad participation by states. Moreover (and conceptually still more importantly) the Ottawa Convention represents, especially to the NGO activist community, the victory of what nongovernmental organizations (NGOs) and now many others call 'international civil societf4 - the successful entry of international non-governmental organizations (NGOs) into diplomatic and lawmaking processes that hitherto have been reserved largely to states and international organizations, represented by officially recognized and accredited diplomats. It is, according to this view of things, the 'democratization of international law? The Rome Statute, for its part, represents in the minds of its supporters - and especially for the international NGOs - the establishment of the rule of law in the international community, solidified with a prosecutor, judges, and criminal sanctions against individuals rather than morally more opaque sanctions against state^.^ It is Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their I)estruction (the 'Ottawa Convention'), 36 II,M (1997) 1507, entered int,oforce 1 March 1999. Rome Statute of the International Criminal Court (the 'Rome Statute'). 37 ILM (1998) 999, adopted by the Uniled Nations Diplomalic Conferenct.of Plenipolenliaries on the Eslablishmenl of an Inlernalional Criminal Court, 17 July 1998. See generally Y. Beijbeder and T. van Boven,JudgingWar Criminals: The Politics of International Justice (1999). See discussion at Part 2, Section B, supra. Ibid. For a representative view from a prominent international NGO activist, see A. Neier, W a r Crimes: Brutality, Genocide, Terror, and the Struggle for lustice (1998). Neier is president of the Open Society Institute and was formerly executive director of Human Rights Watch. Kenneth Roth, the current executivedirector of Human Rights Watch, has said in conferencesand meetings In 1998-1999 that the formation of the International Crtminal Court is the most important advance in international human rights of the 1990s. See also, among many similar statements from Human Rights Watch and the numerous other international NGOs who formed the NGO coalition in favour of the ICC, Ken Roth. Memorandum to Human Rights Watch Board. Advisory Committees. Council, and Fricnds and Supporters, 'Advisory on HKW's Campaign for an International Criminal Court', describing the ICC as 'one of Human Rights Watch's most important priorities', 11 August 1998.
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93
for those who believe that the Rome Statute will work out as planned, at least -the realization of what for so long had been merely the utopian aspirations of those for whom only the true political legitimacy is international legitimacy and for whom merely sovereign states are something whose historical t i e is past, except as constitutionally subsidiary entities within the larger empire of world governance
through the global rule of law.' The Rome Statute stands. in the minds of its enthusiasts, for the proposition that justice is universal and that universalism's supreme expression must be international; it stands for the sovereignty of international justice over other institutions.' The importance of these two treaties thus appears considerable: presumably, according to their supporters, they epitomize the democratization of international law, on the one hand, and the assertion of its genuine sovereignty over all other assertions of sovereignty, on the other. I say this as someone who has laboured long as an activist on behalf of the Ottawa Convention, but who fully (and perhaps surprisingly) opposes the scope and aspirations of the Rome S t a t ~ t e Even . ~ as someone, in other words, who is without sympathy for what I regard as the imperial agenda of international law," I nonetheless acknowledge these two treaties as critical, perhaps the critical, legal events of the first post-Cold War decade. Nevertheless, it is possible to be sceptical of the factual assertion that these treaties have such grandiose importance. One can doubt that they indeed represent watershed events in the history of international order and organization. The principal basis for this scepticism - the fly in the ointment, so to speak, of this putatively 'realized utopianism' - is simply that the United States has stood aside from each of these
'
lo
For example. Neier writes with respect to the ICC, the ICC would have a 'mandate to deal with those who commit crimes within its jurisdiction whether they are from small states in Central Europe or Central Africa or from the richest and most powerful nations on earth'. Neier, ibid at 259. The literature written by international lawyers in support of this proposition is voluminous: representative ofit within the past several years are Neier, ibid.: M.F. Harris el al., Making Justice Work: T ~ P Report of the Century FoundationlTwentieth Century Fund Task Force on ApprehendingIndicted War Criminals (1998): Y. Beigbeder and T. Van Roven,Judging War Criminals: The Politics of InternationalJustice (1999); J.R.W.D. Jones, Thr Pructicr of the lnternational Criminal Tribunals for the Furmer Yugoslavia and Rwanda (1998): H. Ball, Prosecuting War Crimes and Genocide: The Twentieth Century Experience (1999); and R. Stenson and M. Sann (eds), The Prosecution ojlnternationalCrimes (1996). One might also usefully consult the voluminous reports and press releases reflecting this theme from Human Rights Watch, available at www. hrw.org Some examples of American opposition to the ICC include Frum, "l'he International Criminal Court Must Die', The Weekly Standard (Washington DC), 10117 August 1998. at 27: Helms. 'Personal View: Jesse Helms: Voting Against the International Criminal Court is Not Enough. The US Should Try To Bring It Down'. The Firturtciul Times, 31 July 1998, at 18. A thoughtful discussion of shortcomings of the current ICC statute by a prominent American expert in human rights and humanitarian law -and certainly no enemy to the idea of an international criminal court - is found at Meron. 'The Court We Want', Washington Post, 13 October 1998, at A15: for a version of the standard moralizing lecture directed at Washington DC from Europe for its failure to join the Rome Statute, see The Economist, 'World Law and World Power' (US ed.), 5 December 1998, at 16. A different critique of the ICC is made by a non-American, Sellars, 'The Tyranny of Human Rights', Spectator (London).28 August 1 999, at 11 :she argues that 'war-crimes tribunals advance the global aims of Western leaders'. See discussion at Part 1, supra
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treaties. It has joined neither the Ottawa Convention nor the Rome Statute, and it appears unlikely that it will do so in the foreseeable future." This inconvenient fact raises a problem for those who want to see these treaties as a sea-change, desirable or not, in the nature of international order: expressed brutally, what profound change can these treaties purport to signal if the largest and most powerful state, the world's only superpower, the only military power capable of projecting force across the globe, stands aside from them? This paper attempts a preliminary assessment of one aspect of this problem -how to understand the role of the international NGOs that have driven so much of the debates leading to these two treaties, and which have proven to be the indispensable interlocutors of the United States in its refusal to join either treaty-interlocutors, in some respects, even more important than other governments in the negotiations. The discussion will be limited to the Ottawa Convention, but the analysis has certain implications for the Rome Statute. In the course of this assessment, however, it suggests a sharply different way of thinking about the Ottawa Convention and, by implication, the Rome Statute, and the processes that led to them, than is typically held among those who pay attention to public international law and policy. In focusing on how to understand the participation of international NGOs as advocates campaigning for and negotiating these treaties, it devolves on to the question of the role and meaning of 'international civil society'. It should be understood at the outset, however, that these remarks are necessarily speculative. It is far too soon to know the real effects of either the landmines ban or the ICC, the effects of the United States remaining outside these regimes, or even whether the United States will remain outside. It is far too soon to know whether either of these treaties will permanently achieve its stated goals or even see its mechanisms put into place in a stable way. And if that is too soon to know, it is likewise too soon to know whether these treaties indeed represent any kind of sea-change in how international law is made and how the international system works. Moreover, the primary materials for knowing what has gone on in the processes of reaching these treaties are still largely oral histories. Very little of those histories have as yet been written down in an analytically historical way, as respectably published sources that one could cite in traditional, academic law journal fashion. For that reason I will freely draw on my personal experiences as an international NGO activist
"
On the US refusal to sign the Ottawa Convention, see Lobe, 'Disarmament: US Considers Signing Landmine Ban By 2006', Inter Press Service, 25 May 1998 ('the administration refused to sign the Ottawa Conventiondue to strung oppositionfrom the Pentagon'):on background to the US refusal to sign the Rome Statute, see Agence France Presse, 'US Senators plan to oppose ICC, put pressure on signatories', 23 July 1998. Of course. one should never underestimate the vicissitudes of American domcstic politics. If thc Dcmocratic Party wcrc to win both thc Whitc Housc and Congrcss in thc ncxt election, Senator Jesse Helms (R-NC) were to die, and the Korean peninsula peacefully to reunify. then matters might be dillerent.
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during the years leading up to the Ottawa convention.I2 It should be understood, of course, that other participants in those events will have sharply different understandings and interpretations of what went on -understandings and interpretations that will often be far more consonant with the celebratory mood accompanying both the Ottawa Convention and the Rome Statute among those who agitate for what I will
here describe as 'international legal imperialism'. These observations will be offered as modest but. I believe, vital evidence of a broad thesis about international NGOs and their function in the current international system. I give an interpretation of the way in which the Ottawa Convention came into being, in the form of 'seven lessons' of the campaign to ban landmines, with particular attention to the role of international NGOs and their relationship with international organizations and sympathetic states. The nature of this relationship I will describe as a 'romance', and suggest that it carries with it some dubious consequences. Having made this commentary on the campaign, I turn to give a broader reading of the meaning of the campaign as a critical commentary on two crucial ideas. The first is the widespread belief that international NGOs constitute a kind of 'international civil society', one which functions in a way analogous to 'civil society' within a settled domestic society. The second is an interpretation of the relationship between international NGOs and international organizations, characterizing it as one of mutual legitimation; with respect to international organizations, international NGOs are cast in the role of giving some veneer of democratic legitimacy to an international system that, in my view, suffers from a permanently incurable democratic deficit. We cannot turn to these themes, however, without a brief consideration of the perhaps peculiar methodology that this article pursues.13
2 Liberal Internationalism or 'Two Imperialisms' or Both? A A Brief Note on Methodological Prejudices Before setting upon the crooked path by which I hope to illuminate the meaning of US unilateralism or, better said, non-participation in the Ottawa Convention, we ought l2
l3
I do not havc thc samc cxtcnsivc pcrsonal cxpcricncc with thc Romc Statutc and the campaign lcading up to it. Moreover, its 'inner' history- by this I mean the subjective but critically important tone, tenor, and aspirational mood of the campaign for the treaty, especially among the international NGOs, whether of the Rome Statute or the Ottawa Convention -is even less a matter of written record at this point in time than that of the Ottawa Convention. By contrast, in the case of the Ottawa Convention, I believe I have a personal understanding of both the exterior and interior history of the campaign to ban landmines that -even in a subjective and, to be sure, disputable way -carries some independent weight even where 1 am reporting on my own personal experience. The discussion of methodology in Part 2 may strike some as far afield from the issue of landmines and the Ottawa Convention: my presentation and subsequent discussions with participants in the University of Michigan I a w Conference on Iinilateralism at which this paper was first presented convince me, however, that it is crucial to understanding what comes after it. Certainly participants in the conference agreed with that assessment.
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first to sound the cautionary note that the issue of the United States abroad in the world is not merely one of power. It is instead one of moral and political legitimacy. For many it is consoling to believe that when the United States acts alone, acts contrary to what many or even most other states would have it do, and acts contrary to those states that have traditionally extruded themselves14as the world's conscience, it acts merely from the surety of its own power. The United States' ability to act contrary to others is, according to this consolation, merely a matter of power, guns and butter, its arrogance and obduracy. Such sentiments emerge when, for example, the US is accused, upon its failure to join the Ottawa Convention, the Rome Statute, or for that matter the Convention on the Rights of the Child" or other treaties that have obtained broad or even nearly total (if perhaps merely rhetorical) ratification, of consorting with 'rogue states'16 - Libya, Iran, Iraq, North Korea, the whole shifting club of rogues - or, still more provocatively, of being a rogue state itself.17 But however consoling, it is a stupidity." Admittedly it is one in which I have indulged; as an activist seeking to shame the United States into joining the Ottawa Convention, I have on occasion accused the United States of being no better in this
l4
l5
l6
l7
1R
In lieu of GDP, as it were, recalling Stendhal: 'That sort of fellow [Rousseau] wishes to argue about everything, and has not a thousand crowns a year.' Stendhal, The Red and the Black (2nd ed. 1984, trans. C.K. Scott Moncriefn 328. Convention on thc Rights of thc Child, UN Doc. A144149 (adoptcd by thc Ccncral Assembly, 20 November 1989: entered into force. 2 September 1990). The most recent prominent place where the 'rogue state' assertion against the United States has appeared is Judt, 'A Superpower Flaunts Its Ignorance', New York Times, 1 7 October 1999, section 4. p. 17, in which Judt, writing following the US Senate rejection of the Comprehensive Nuclear Test Ban Treaty, declares that 'if we behave like a rogue nation ourselves, smug in our monopoly of virtue and weapons, how can we hope to bring pressure to bear on true rogue nations overseas?' For a standard, US foreign policy establishment-styleanalysis that frames the issue explicitly in terms of theUS as a 'rogue' state, see Manning, 'U.S.: Global Stewardor Rogue Power?' The Straits Times (Singapore).9 November 1999, at 54 ('is the US the steward of global power or a rogue superpower.?). 1:ollowing the October 1999 refusal of the 1IS Senate to ratify the test ban treaty, much commentary erupted, particularly in Europe, in language similar to claims of the US as a 'rogue state'; in particular. French president Jacques Chirac delivered a remarkable speech on 4 November 1999, in which he described lhe US as a 'hyperpower', and suggesled lhal the European Union could flourish by seeking lo supplant the United States: the EU, according to Chirac, needed to consolidate the United Nations and other international institutions to prevent the world from relying on the United States for financial stability, cultural harmony and global security. See Fitchett, 'Chirac's Attack on Congress Has a Bigger Target', International Herald Tribune, 9 November 1999, at 2: Whitney, 'France Presses for Power Independent of the ITS', New York Times, 7 November 1999, Section 1, p. 9: Hoagland, 'American Menace', The Times (London). 4 November 1999: Graham, 'Chrac Attacks American Attitudes', Financial Times, 5 November 1999, at 10. One could just as easily turn the 'consorting with rogue states' proposition around, with respect to the Rome Statute, for example, as the president of Freedom House, Adrian Karatnycky, did in the Wall Street Journal, noting that the ' U S . -the world's most important democracy -voted against the [ICC],as did India - the world's largest democracy - and Israel - a state built by the victims of genocide'. Karatnycky. 'Don't Worry, War Criminals -The New Court Won't Work'. Wdl Street Journal, 27 July 1998, at A15; but sccthc rcply. Kcnncth Roth (Exccutivc Dircctor, Human Rights Watch), 'Wc Nccd an International Court', letter to the I
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regard than the r o g ~ e s .Tempting '~ but untrue, however; the power the United States exercises in the world, for better and for worse, is embedded profoundly in a web of claims to political and moral legitimacy (even if some of those claims are themselves contradictory and competing). It is the world's superpower not merely by strength of its GDP and willingness to spend more than others on guns, but by assertion of these
moral and political claims to legitimacy, not merely within its borders, but upon the world stage. One may dislike all or part of the basis of those claims to legitimacy, one may think them specious or otherwise, but anyone imagining that to struggle with US unilateralism, in the name of international legal order or anything else, is merely to struggle with power harbours a serious delusion.20The struggle is inevitably as much or more with ideas as with power; surely this is obvious, but it seems sometimes forgotten in the myopia of wishful and self-righteous internationalist thinking. To frame the issue as one of US unilateralism, in other words, as against the virtuously internationalist world gets it wrong. While all unilateral US actions threaten the legitimacy of international legal imperialism, some unilateral US actions tend in the direction of US imperialism as an alternative to what I have called 'international legal imperialism', the nascent imperialism, the willingness to impose supranational rule, that is the consequence of assertions of the sovereignty of supranational institutions. Whereas still others - regrettably fewer and fewer in these days of MadeleineAlbright2l-tend toward an anti-imperialism that, to be sure, 19
20
21
I am here partly reflecting self-critically on things I have said during the course of the NGO campaign to ban landmines, in speeches and presentations. But I am also referring to similar remarks that Jody Williams made when she received word lhal she had received the 1997 Nobel Peace Prize for her work on the international landmines ban campaign; in press interviews she described the US position and President Clinton in terms similar to the 'rogue state'. See Goldberg. 'Peace Prize Goes to Land-Mine Opponents'. New York Times, 11 October 1997, at A-I. (quoting Williams, 'I think it's tragic that President Clinton does not want to be on the side of humanity.. .' and quoting Williams referring to Clinton as 'Billy' and 'a weenie'). At the t i e Ms Williams made these remarks, I applauded them, despite criticism from others in the ban campaign, notably Vietnam Veterans of America Foundation executive director Robert 0. Muller, that such remarks were self-indulgent and failed to caoture the deemr. strategically critical understanding that the US position was not merely based on narrow calculation of interest but on a broader ideological view of itself that simply could not be equated with the behaviour of the usual club of rogue states. Induldng oneself in the fiction of thinking that the US was just another rogue state was strategically dangerous for the campaign, a thoughtful senior advisor to the campaign remarked to me privately at the time. because it meant that the campaign would crucially underestimate thc strcngth ofthc US rcfusal to sign thc Ottawa Convcntion;bcttcr, said this advisor, to undcrstand thc lJS position as a moral position, even if a wrong one, in order to understand the strength with which the [JS would defend it. I thought at the t i e this advice was wrong; although I still admire Williams's chutzpah, in retrospect I now think it, and my own repeating of it, was mistaken. My colleague James Boyle points out, too, that the 'rogue' states- Libya, Iran. North Korea. Cuba. etc. - are fundamentally motivated not by pure calculations of power and Realpolitik advantage but by extremely strong, if repellent, ideologies. What makes a rogue state a rogue is not that it acts purely according to calculations of obdurate power but the moral quality of its ideology. Recent biographies of US Secretary of State Madeleine Albright appear to confirm that at bottom she is a believer in supranational institutions -held back by a US Congress and an American people that are not entirely ready to turn sovereignty and security to the brave new world ofsupranational institutions, nor ready to sacriticeAmerican soldiers to their ideals - but eager to be seen as an architect of a new order. See M. Dobbs. Madeleine Albright: A Twentieth Century Odyssey (1999); A. Blackman, SeasonsofHerLife:A
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EJIL 11 (2000). 91-120
ought not to be confused with isolationism; they are different." I favour antiimperiali~m.~~ But neither the characterization of an instance of US unilateral action as imperial or anti-imperial, nor the US ability to take unilateral action, is ever free of the simultaneously enabling 'mission' conferred by legitimacy and disabling 'constraint' imposed by legitimacy upon power. It is never the mere exercise of power. What should be said here, then, of imperialism and anti-imperialism, before turning to the specifics of the international campaign to ban landmines and the US response to it? I have remarked in passing above that supposed US unilateralism must, at this point in time, be understood against two categories of imperialisms: the nascent imperialism of the international legal order, on the one hand, and the 'really existing imperialism', US imperialism, the imperialism of cruise missiles and capital markets, on the other. They are, in my view, in competition or, at least, in potential competition with each other.24The US refusal to join the Ottawa Convention ought to be seen at
22
23
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Biography of Madeleine Korbel Albright (1998); and thc much lcss objcctivc T. Blood, Madam Secretary: A Hiography of Madeleine Albright (1 99 7). It is in this spirit that the 1999 Kosovo War ought to be seen: for Albright and the closet supranationalists of the Clinton administration, the Kosovo War gave them the opportunity to demonstrate the principle of military action for purely humanitarian motives with no discerniblenational inleresl; the problem for the supranalivnalists, however, was that it was fvughl not by supranational institutions or even with their authorization, but instead by the United States. occasionally assisted by the rest of Nato. For those few US conservatives who supported the Kosovo intervention, it gave the US the opportunity to fight a war without even pretending to obtain the authorization of supranational institutions such as the UN or the Security Council, so to denigrate the authority of such bodies: the problem for these nationalists, however, was that the Kosovo War was not fought for national interest,.The two factions favouring the war in the US made a modest alliance, each getting something but each giving something up; each represents a brand of imperialism, one supranationalist imperialism and the other US imperialism. This is a point lost on Patrick Buchanan, in his new manifesto, P. Buchanan, A Republic, Not an Empire: Rccluiming America's Destiny (1999). The republican sentiment of Buchanan's title is admirable, but unfortunately goes no deeper in the book than the title page and is belied by Buchanan's insistence on isolationism,nativism, xenophobia, racism, and an anti-immigrant position as conditions for a republic; those are the conditions for a nation based upon ethnicity, however, rather than the American republic based on assimilation of immigrants to a common constitutional ideal. A genuine plea for an American republic, not an empire, is found in the late Walter Karp. The Politics of War (1979), and while it is scrupulous in its assertion of republican virtue and rejection of American empires abroad, it carries none of the ugly prejudices to which Buchanan is so attached and with which he so dismayingly tars the political project of American republicanism. I briefly discuss these categories of international legal imperialism, US imperialism and anti-imperialism hcrc in this Part 2. I raisc thcm not in ordcr to sct them out fully or dcfcnd thcm in dcfinitivc terms, but merely to sketch the outline of a way of seeing the international world that is an alternative to the usual manner of international lawyers. Noam Chomsky almost agrees: 'On the "nascent imperialism of international legalism and international institutions". I almost wish I could agree with you - and was pleased to be able to help defioe the framework that defines you as a moderate between the opposed lunatics. My own view is that it would be a better world, marginally, if international law and institutions could play some role independent of the manipulations of the great powers. influence varying roughly with power, as expected. But our world is very daerent'. Noam Chomsky, e-mail to Kenneth Anderson, 2 1October 1999. See also N. Chomsky, The New Military Humanism: Lessons From Kosovo (1999).
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least partly as a competitive response of one form of imperialism against another, the 'really existing' hegemon against a potential rival.25 This is obviously a large and provocative thesis, and my purpose for raising it here is decidedly not to seek to 'prove' it. In some sense, such large 'views of the world' as e i t h e r 'liberal i n t e r n a t i o n a l i s m ' o r 'imperialism' are never r e a l l y p r o v a b l e a s such.
Instead one invites a reader, on the basis of a picture drawn out of the evidence, to recognize it as a plausible, or more plausible, description of the world, rather than as proof of it. The evidence is always interpretable in different ways, and 'plausibility' is a more honest goal than 'proof. Be that as it may, this discussion will not even attempt to reach 'plausibility'; instead it aims simply to alert the reader that a radically different way of seeing international NGOs, international organizations, and states sympathetic to the ban campaign, on the one hand, and the US and its refusal to join the ban, on the other, is at least possible. Obviously I believe there is a great deal of 'plausibility' in the alternative, radical description of 'two competing imperialism^'.^^ But I do not necessarily believe that the imperialism thesis is fundamentally contradictory to the conventional liberal internationalism that is normally applied, by international public lawyers of a certain internationalist persuasion at least, to the landmines campaign. It seems to me, as a terminological matter - about which, again, I will not say more in this discussion - that it is possible to accept that such movements as the landmines ban campaign are genuinely examples of 'liberal internationalism' - at its best, no less - and yet simultaneously examples of 'imperialisms'. Both descriptions, liberal internationalism and 'competing imperialisms', are in some sense true, or at least 'plausible', in this matter of the landmines ban. Comprehending what is implied by each description is critically important, it seems to me, for understanding simultaneously what the activist course of action should be but also the limitations that should be considered precisely because the activism is not just liberalism, but also imperialism, in all its excess, hubris, imposition, and presumption of its own virtue.27Liberalism, whether of the internationalist variety or any other, is often drunk with triumphalism and is rarely capable of seeing the damage it can 25
Theview that the US is an imperialist,interested in preservingits dominanceover other sources of power, and in particular supranational institutions of the UN system, is of course widespread, especially among the American left. See, e.g., Klare. 'The Clinton Doctrine'. Nation. 19 April 1999. at 5 ('the NATO thc Unitcd Statcs has a vcstcd intcrcst in maintaining bombing is part of a largcr stratcgic vision international stability . it must be able to act on its own or in conjunction with its most trusted allies (meaning NATO)');Editorial, 'Destroying Kosovo'. Nation, 19 April 1999, at 3 ('the Administration once again degraded the UN's authority and marginalized Security Council members Russia and China'). I should acknowledge my debt to the 1999 Grotius Lecture by Nathaniel Bennan, published as Beman. 'In the Wake of Empire'. 14 American University International Law Review (1999) 1521. This methodology, of undertaking (mostly) liberal action while analysing from a radically sceptical position, in order to reach a synthesized form of action that could best be described as 'chastened liberalism' or 'liberalism as restrained by the virtue of modesty', is likely to strike many readers as exceedingly strange. Obviously it presupposes a problem of liberalism that goes far beyond liberal internationalism, in that it starts from the proposition that liberalism is a 'closed' and 'complete' philosophical system which has great dificulty accepting critiques that embody values that are not themselvesvalued by liberalism -the standard liberal-communitarian debates come to mind; see, from
..
*' 27
. ..
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inflict; for that it needs to be seen from a genuinely radical, critical perspective. If I did not believe something like this, then I would not simultaneously spend the amount of time I do as an activist on the cause of banning landrnines, while writing sharply critical articles such as this one which aim quite deliberately at radically reinterpreting actions including my own, as a kind of iconic reminder of h ~ b r i s . ~ ' Four elements (at least) of the method I have briefly sketched above are likely to strike the confirmed liberal internationalist as preposterous. The first is the proposition that liberal internationalism and the two competing imperialisms can both be 'true' as descriptions of the landrnines ban campaign and the US response. Rather, says the liberal internationalist, they would appear to be disjunctive if not exhaustively disjunctive explanations, such that if you accept one you must reject the other. Be a liberal or be a radical, but do not believe you can commune in both churches at once. The second is the suggestion that there is any utility in considering radical critiques of actions or campaigns or anything else that arise or, loosely speaking, 'derive' from liberal internationalism. Rather, says the liberal, liberal internationalism is 'complete' as a model of ethical international order, and no genuine understanding results from examining its actions from radical perspectives. The claim of liberal hubris is therefore simply misplaced, because there is no genuinely 'true' radical perspective from which to perceive this alleged hubris and it therefore cannot constitute hubris. There is no imperialism at least in the actions of the international NGOs, international organizations, and sympathetic states in support of the ban campaign (although the US actions are another matter); their actions are just plain old liberalism. The third is the claim that there is anything to the idea of 'two competing imperialisms'. Whatever limitations liberal internationalism may have, says the liberal, whatever 'modesty' it ought to exhibit in its claims to have an ethical plan of
28
the voluminous literature, J.B. Elshtain. Augustine and the Ljmits of Politics (1995). The presumption of completenessleads liberalism to a hubristic self-confidencein its actions and social prescriptions, and an unwillingness to see the possibility of, for example, dialectically bad consequences and social costs deriving from its social programme. The 'chastened' or 'modest' liberal,who understands the tendency to hubris inhcrcnt in libcralism,attcmpts to takc radical critiqucs -which ofcoursccan vary hugcly and bc contradictory as between themselves-even incoherently into what might still remain, fundamentally, a liberal plan of action. I discuss the idea of liberalism's presumption of 'completeness' briefly in an essay on the late Christopher Lasch, in Anderson, 'Heartless World Revisited: Christopher Lasch's Parting Polemic Against the New Class', Times Literary Supplement (London), 22 September 1995; and in Anderson, 'Review Essay: A New Class of Lawyers: The Therapeutic as Rights Talk', 96 Columbfa law Review (1996) 1062, at 108 1-1092. The idea is briefly applied with respect to liberal internationalism in Anderson, 'Illiberal Tolerance:An Essay on the Pall of Yuaoslavia and the Rise of Multiculturalism in the United States', 33 Virginia Journal ofIntemationalLaw (1993) 385. Ido not suppose that those who really are smitten with liberal internationalism will find this very persuasive, since they are not l'ielv to see that there is even the risk of a problem of liberal immodesty. As a method of social action and social criticism, I take at least some comfort from M. Walzer, The Company ofcritics: Social Criticism andPolftica1Commitment in the Twentieth Century (1988),which argues that something like the tension I suggest must be maintained between radical critique and suitably chastened liberal action: likewise, too, albeit in the much more dramatic circumstances of the French Resistance, the poetic notebook of Rene Char, Peuillet d'Hypnos (1946), especially the section 'France-of-the-caverns', dedicated (not unsurprisingly) to Albert Camus.
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international action, the claim of 'two competing imperialisms' as an alternative. radical vision of the landmines campaign and the US response to it is unpersuasive on its own. It is internally incoherent as a description, even accepting the possibility of an analysis based on imperialism. The fourth arises from the third. and is the view denying that there could even be
such a thing as 'international legal imperialism'. There is, to be sure, US imperialism; it is a fact of international life. But international law is the non-imperial alternative to US imperialism and hegemony, and it ought to be celebrated as such." This is not the place to undertake a response to each of these objections. I have raised the possibility of an alternative vision of how such apparently benign and virtuous things as the landmines campaign might be construed, the possibility of locating it and the US response within an framework of imperialism, because I think that my observations in the remainder of the discussion would be entirely (rather than merely mostly) puzzling to the international lawyers who are likely to be this article's readership without at least some sense of how far from liberal internationalism this critique resides. This may be taken by readers as simply another reason to dismiss it as pointless. To that I would ask that those readers who are part of the collegium of international law, and who tend to accept the standard 'master narrative' of liberal international law undertake, insofar as possible, in order to glean something from the subsequent discussion of international NGOs and the US response, to invoke some principle of intellectual charity at least while reading this. Still, one last thing needs mentioning before proceeding onwards to an iconoclastic account of the international NGO movement and the campaign to ban landmines. Even among those exercising an admirable amount of intellectual charity in the course of reading this article may still wonder what could conceivably be meant by describing the enterprise of international law as I have described it, as international legal imperialism. A wide part of educated opinion in Europe, particularly in France, regards US actions on many matters as the exercise of illegitimate hegemony, which I 29
It also seems to me that however wild, even paranoid. the view might seem to some that the international legal order could be seen as 'imperialist', this pales beside the fantastically strong assertions by President Chirac, supra note 17, as to the totalizing nature of US imperialism, running all the way from military strength to financial dominance to linguistic and cultural hegemony. Chirac's vision -widely shared, so far as I can tell, among European intellectuals of all varieties - is one of a seemingly seamless web of US imperialism, which must bc rcsistcd cvcn whcn, in thc casc of languagc and culturc, it scarccly sccms to be the 'programme' of the llnited States government that is causing a movement to globalism on American cultural terms but instead the Liberal, autonomous choices of individuals worldwide. I am no friend of imperialism, whether US imperialism or any other, but once Chiiac goes beyond those matters which are more or less within control of government policy, such as military deployments and, to a lesser extent, finance and capital, to such things as language and culture, then Chirac is confusing 'imperialism', as a theory and means of 'governing', with shifting tectonic plates of global culture; appealing to such concepts as imperialism and hegemony loses its bite, because analysis is no longer tied in any strict ways to the policies of a government but attributed, much less usefully, to America as such. It is too broad an attribution to mean very much, whereas denouncing the US missile attack on Sudan, for example, as the rash and unjustified act ofan imperial and hegernonic aggressor seemsto me both correct and meaningful. In any case, Chirac has the admirable honesty to inform us that the point of both the institutions of Europe and the institutions ofthe UN is to stand against the hegemony of the Zlnited States.
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take to be not unrelated to imperiali~m.~~ But is international law not being invoked, by the Europeans in particular, as a means to resist, at least at the rhetorical level, American imperialism?How is it that it can be described as its own form of 'competing imperiali~rn'?~' But of course there is no reason why an empire cannot be founded on law and legalism, and there is likewise no reason that it cannot, according to both its own lights and some broader standard of moral judgement, be bene~olent.~' What makes an empire an 'empire', and imperialism 'imperialism', is neither its legal formalism nor its benevolence, but its imposition from above and from without - geographically, culturally, politically and economically.33Imperialism depends neither upon consent of the governed nor upon democratic assent for its assertion of political legitimacy; it can depend upon numerous other principles of legitimacy, ranging from economic necessity3* to the 'white man's burden' to the promulgation of the faith. Most frequently invoked in today's world by those willing to call directly for an imperial order at the level of the United Nations, in the form of protectorates and mandates to govern in places of massive human rights abuse, the aftermath of war, or the so-called
30 31
32
'' 34
See my earlier footnotes regarding President Chirac's 4 November 1999 speech laying out this view. Thcrc is no nccd hcrc to takc a position on whcthcr and to what dcgrcc impcrialism 'must' bc drivcn by economic,rather than political, factors -the classic 20th century debate largely between Marxists and liberal thinkers. I am happy to accept that imperialism often has no special relation to capital, let alone to Rudolf Hilferding's category of 'finance capital' (R. Hilferding, Finance Capital: A Study of thehtest Phase of Capitalist Development (orig. 1910), ed. T. Bottomore (1985)), and to accept Hans J. Morgenthau's decidedly non-Marxist, classically 'neutralist' definition of it as a 'policy that aims at the overthrow of the status quo, at a reversal of the power relations between two or more nations'. H.J. Morgenthau. Politics Among Nations: The Strugglefor Power and Peace. 4th ed. (1966), at 42. Morgenthau's definition - in some sense a modern expression of Augustine's concept of animus dominandi (see Elshtain, supra note 2 7. at 93-94) -seems to capture the imperial essence of, for example, the Chirac project quite nicely; that it is an imperialism in opposition to another imperialism, US imperialism, seems neither here nor there. Of course, not all the visions of supranational institutions conform to Chirac's, but the assumption that they should take power and carry legitimacy in the world away from existing sovereign states, whether the Uniled Slates or others, seems lo me amply lo Ell Morganlhau's carefully nun-ideological definition. A standard undergraduate textbook on international relations, after all, deliberately associates 'imperialism' as being 'invoked proudly to imply what Britah had contributed toward civilizingthe parts of the world once or still controlled by Britain - the rule of law, parliamentary institutions, a rational administration of civil servants with some sense of public responsibility (hitherto a rather rare phenomenon in many regions). and a conviction of the worth and rights of human beings'. J.E. Dougherty and R.L. Pfaltzgraff,Jr., Contending Theories of lntentationalRelations: A ComprehensiveSurvey, 3rd ed. (1990), at 227. All that, one might say, and still, unapologetically imperialist. I take this to be in conformity with Morgenthau's standard definition, supra note 31. This is the famous analysis promulgated by John A. Hobson (Imperialism:A Stud# (orig. 1902) (1965)). V.I. Lenin (Imperialism: The Highest Stage of Capilalism (1939)), and Rudolf Hilferding. supra note 3 1. As Lenin put it in the standard Mandst-Leninist view: 'Imperialism is capitalism in the stage of development in which the dominance of monopolies and finance capital has established itself; in which the export of capital has acquired pronounccd importance; in which thc division of thc world among thc international thrusts has begun: in which the division of all territories of the glohe among the great capitalist powers has been completed', at 89.
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'failed states', is that there is no other choice - a sort of negative invocation of the benevolence principle.15 There may genuinely be no choice in some of these cases. But consent of the governed is still lacking, democratic legitimacy in the long run is still lacking, and a n y o n e who b e l i e v e s t h a t those deficits do n o t p r o d u c e their own p a t h o l o g i e s o v e r the
long term- and frequently short term -would do well to review the history of a wide variety of contemporary benevolent protectorates, starting with Somalia and ~ a i t i . ~ ~ Of still greater concern than the situations of genuine protectorates and failed states, however, is the broadly held perception, particularly among liberal internationalists, that if not the UN system in precisely its present form, then some form of emergent global order really does have legitimacy notwithstanding its notable - and in my view, insurmountable - democratic deficits. It has instead, apparently, the legitimacy of international law, and there is a certain sense of 'ships passing in the night' if one attempts to ask what, precisely, gives international law this legitirna~y.~' We count democratic legitimacy to be the sin qua non of legitimacy of the sovereign national state, but why, I wonder, do we suddenly jettison it when it comes to the international system - for no better reason, so far as I can tell, than that it really cannot be achieved?" 35
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Indeed. the rehabilitation of the very word 'imperialism' within a t least First World countries and their liberal internationalist elites is a striking phenomenon. For an important historical analysis of the evolution of the term, see H. Koehner and H.1). Schmidt, Imprialism: The Stow and Significanc~oJa Politiral Word (1964). The journalist David Rieff. for example, is happy to describe himself as a n imperialist. although he does not shy away from an understanding of the bad consequences that also arise from it. A useful place lo begin, notwilhslanding that I disagree almost entirely wilh its conclusions and outlook. is M. Kaldor, New and Old Wars: Organized Violence in a Global Era (1998); she recognizes plainly, as Alex de Waal put it in an excellent review (Waal. 'We Do Deserts. We Don't Do Mountains'. London Revlew of Books, 1 1 November 1999, a t 17. 19). that in places like Bosnia and Kosovo, and by extension other places as well, 'international engagement . is profound and will be long-lasting, and thus imperial-style responsibilities should be tahen seriously'. See also 1. Coulon. Soldiers of Diplomacy: me Unitrd Nations. Peacekeeping and the New World Order (1'198);and Jonathan Moore (ed.), Hard Choices: Moral Dilemmas in Humanitarian Intervention f.1998). , For many international laayers, especially academics, there is a certain weariness in taking u p this question, a certain desire to say, 'Haven't we long since settled this?' To which the appropriate response is, 'Well, yes, you settled this among yourselves to your international lawyerly satisfaction, imagjning that no one else mattered to reaching this agreement, and now you seem surprised when the rest of us don't feel bound by the agreements and understandings you worked out within your hermetically closed circlcs.' 1 take up this question in a n aggressively polemical fashion in Anderson, 'Secular Ewhatologies of the Internationalized New Class', in P. Juviler and C. Gustaison (&), Religion and Human Rights: Competing Claims? (1998). at 107. The reliably sanctimonious Michael Ignatieff, reviewing the article in the New York Review of Books (Ignatieff. 'Human Rights: The Midlife Crisis'. New York Review of Books. 2 0 May 1999), seemed to conclude that it was a question beneath answering, and offered platitudes that because the human rights movement standswith victims (as Human Rights Watch asserts as its motto), it cannot have democratic deficits. This does not seem to me to be a serious argument; it is, however, a confirmation that liberalism is a closed system that has the gravest difficulties hewing its critics or even acknowledging that there might be grounds of criticism. A genuinely thoughtful - sometimes sympathetic and sometimes critical -response is made by Jose Alvarez in his concluding remarks to the University of Michigan conference at which this paper was originally delivered; he notes, by way of criticism, that I have a tendency to romanticize democracy, especially within sovereign states, and to
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This assertion of the legitimacy and supremacy of international law over sovereign states does seem to me to fill the requirements of imperialism quite nicely. That it has not yet got very far in the teeth of US hegemony is neither here nor there; that it is opposed to, in my view, an equally illegitimate US imperialism does not seem to me to make it any less imperial in its pretensions. What it is about, what it aims for, what its adherents (including many readers of this article) fervently yearn for as idealists, people of good will, liberal internationalists, is the establishment of an international system that is genuinely constitutionally supreme with respect to both nation states and the people that, in the best of cases, they democratically represent. In no very radical sense, it seems to me the quintessence of empire. And it is in this sense, as a partisan of democratic legitimacy, that I call it 'international legal imperialism'.
3 The Romance Between NGOs and International Organizations A Seven Lessons from the landmines Ban Campaign Although the history of the Ottawa Convention is still largely oral history, one indispensable written source has emerged, To Walk Without Fear: The Global Movement to Ban land mine^.'^ Edited by two Canadian academics, Maxwell A. Cameron and Brian W. Tomlin, and a Canadian diplomat extremely active in the international campaign, Robert J. Lawson, its collected papers, drawn from a range of NGO activists, academics, and others, are the first serious effort to record the history of the landmines ban campaign and assess its impact upon the rest of international law and lawmaking. Drawing from this book and my own experience, a series of observations about the ban campaign stand out. First, the international campaign to ban landmines began entirely -one hesitates to use so strong a word, but in this case it is applicable - as an effort of international NGOse40The initial steps began with the International Committee of the Red Cross (ICRC):its surgeon staff particularly, alarmed at the sharp increase during the 1980s in the number of landmine victim limb amputations, persuaded the ICRC to raise the issue in its diplomatic, legal and public awareness effort^.^' The ICRC would be the first
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genuflect before it even where, under other circumstances-viz., where I did not need it as a category to stand against the evils of supranational imperialism - I might have doubted that it had very much 'democratic' legitimacy at all. (Alvarez, 'Multilateralism and its Discontents'. 2 EJlL (2000) forthcoming.) I acknowledge that Alvarez has identified a matter of serious concern in my own analysis; I do not think it is fatal to the analysis, but it is serious indeed. M.A. Cameron, R.J. Lawson, and B.W.Tornlin (eds), To Walk Without Fear: The Global Movement to Ban Lundmines (1998). In this account of the background history of the campaign, I draw heavily from my own experience, but also from the very important historical account given in Williams and Goose, 'The International Campaign to Ban Landmines', in ibid. at 20. See ICRC, Landmines Ban Brochure (1992).
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to admit that its nascent campaign had comparatively minimal visibility until a coalition of international NGOs with concerns about landmines arising from very different standpoints, came together to initiate what later became known as the International Campaign to Ban Landmines (ICBL).~'The initial groups, which had met in various ways and combinations i n the run up to the formal launch of the
international campaign at a meeting at the offices of Human Rights Watch in New York in 1992, were Handicap International (France), Human Rights Watch (US). Medico International (Germany), Mines Awareness Group (UK), Physicians for Human Rights (US), and Vietnam Veterans of America Foundation (US), which became the first ICBL steering committee.43 The ICBL expanded over the next few years to number more than 1,200 NGOs in some 60 countries;44although the ICRC, for reasons of its mandate, did not formally join the ICBL coalition, it and national Red Cross and Red Crescent societies and their federation fully supported the process leading up to the Ottawa C ~ n v e n t i o nIt. ~was ~ a striking part of the campaign that diverse NGOs could find bases on which to support the ban campaign drawing upon their own organizational mandates. Thus, for example, Human Rights Watch and the ICRC regarded landmines as a human rights and humanitarian law issue, while such groups as Medico International, Physicians for Human Rights, or Handicap International saw it as a medical and public health issue, while still others, such as the Vietnam Veterans of America Foundation saw it as a matter of dealing with the consequences of war in a social and developmental sense. Second, governments were initially entirely uninterested: it was regarded by governments everywhere as pie-in-the-sky, even if they were not actively hostile to the idea. Governments regarded the only real possibility as being a strengthening of the existing Landmines Protocol, so-called Protocol I1 to the Convention on Conventional weapon^;^^ the ICBL had long since concluded that amendments to At the Protocol 11, governing the rules for the 'proper' use of landmines, were u~eless.~' same time, while governments were generally unpersuaded as to the idea of a Cognescenti of the history of ban campaign will see that 1 am here deliberately stepping aside fmm some unprodu~avedebates over which NGOs 'really started' the ban campaign; together with some ugly squabbles over the 1997 Nobel Prize awarded jointly to the long-time coordinator of the IC33L. Jody Williams, and to the ICBL itself, these arguments have wasted considerable time - although perhaps they are inevitable in a campaign organized deliberately o n a loose and ad hoc basis in order to have maximum flexibility of action. With somc trepidation, as many of the partics involved havc vchcmcntly disagreed with the article, see 'l. Marshall, 'Nobel Prize Sets Off a Landmine', Los Angela Times, 6 February 1998, a t 1. This meeting is described a t Williams and Goose. supra note 40, at 22.
Ibid. See generally Maslen, 'The Role of the International Committee of the Red Cross', in To Walk Without Fear, supra note 39, a t 80. One influential sector of the international NGO community which never really joined the coalition - somewhat surprisingly, to my mind -was international environmentalism, for example such organizations as Greenpeace: these groups never really decided to see the litter of landmines as, for example, a form of 'pollution' or some other form of attack upon the environment. Protocol on Prohibitions or Restrictions on the Use of Mines, Rooby Traps and other Devices, IINGA Doc AiConf. 95/15 and Corr. 1-5: 19 I.L.M. 1534 (1980). Human Rights WatchlPhysicians for Human Rights, Landmines: A Deadly Legacy (1993). at 261-306.
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universal, comprehensive ban treaty, some sympathetic governments and legislatures, at the instigation of local NGOs affiliated with the ICBL, began to pass unilateral restrictions of their own on landmines, including restrictions on institutions and companies under their jurisdiction, ranging from prohibitions on use by their own militaries to export bans directed against arms manufacturer^.^^ Third, the ban campaign had a simple, easily understood message - a complete and comprehensive ban, nothing more, nothing less. The message was so simple that it could fit whole into an advertisement or public awareness message. I was once asked, for example, to provide the text of a model landmines ban treaty for the ICBL; after due consideration, the text read in full: States parties to this Convention undertake never under any circumstances to produce. stockpile, transfer, or use antipersonnel landmines, and further undertake within a five year period upon ratification of this Convention to destroy all existing stockpiles of antipersonnel land~nines.*~
Although the final Ottawa Convention is of course longer and more detailed, in contrast to other arms control or humanitarian law treaties it preserves the spirit of transparent language and clear, uncompromising and unambiguous undertakings. This utter moral and political clarity was an integral part of the campaign in reaching various publics. Fourth, although the possibility of banning landmines was seen strongly as a threat - if not complete nonsense, at the outset - to the world's militaries, it did not represent an overwhelming economic threat to arms makers. Anti-personnel landmines represented then, and more so now, a very modest part of the munitions sector of arms manufact~rers.'~ Giving up mines manufacture did not represent a significant blow to the profitability of diversified defence contractor^.^' As a
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These early efforts are catalogued in Human Rights WatchIPhysicians for Human Rights, Landmines: A Deadly Legacy (1993).Nearly all these eBorts drew on the example of a US senator. Patrick Leahy, who. tngether with Congressman Lane Evans, had been pursuing the matter legislatively in the United States almost singlehandedly - and with striking success even before the ICBL existed, having produced unilateral US moratoria on landrnines' export over several years prior to the creation of the ICBL. Ironically, par1 of lhe success of Leahy and Evans' elTurls lay in the very invisibility of the eBorl; the US military did not feel especially threatened by these efforts, and certainly favoured strengthening prohibitions on the 'proper' use of mines, until ban efforts crystallized and went public in the form of the comprehensive ban treaty. But it was an important part of the development of the campaign that ban advocates in a wide range of Nato countries were able to say to their legislatures and militaries. 'if the IJnited States can ban mine exports, then surely we can too'. Author's files, 1993. See International Campaign to Ban Landmines,Lundmine Monitor Report 1999: Toward a Mine-free World (1999), at 5-12, for the best current survey of the production and stockpiling of landmines. This is true for arms manufacturen: in the aggregate notwithstanding the bankruptcy of a major Western producer of mines - the Italian Valsella company. See 13 lane's Defence Weekly (1997) 11, 1 October. For a time in 1993, George Sows, the financier and philanthropist, happened to hold the third largest share stake in Alliant Tech Systems, an American munitions manufacturer that produces landmines for thc US military. On account of that conncction, I was ablc to hold discussions with ccrtain scnior corporate officers at Alliant Tech, who told me informally that landmines were not a major part of Alliant's line of corporate products or corporate profits.
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consequence, no industrial or private sector groups had a strong incentive within the Nato countries to contribute money to a counter-campaign. The opposition to the treaty was entirely a matter of governmental policy, making that policy considerably more susceptible to public pressure by NGOs. Militaries might be opposed to the ban, but the military-industrial complex, so to speak, was not engaged on the issue.
Fifth, the treaty process represented a new approach to international lawmaking because - largely in response to international NGO pressures - once a core of influential governments had endorsed the ban treaty, the negotiating principle was not the usual method of arms control treaty negotiation on the principle of obtaining consensus on each point along the way, no matter how much the treaty had to be watered down or how long it took.52Instead, again on account of international NGO pressures, sympathetic governments adopted a new principle of negotiating a treaty among 'like-minded' states - in effect, accepting the comprehensiveness of the international NGO position and its refusal to compromise the essentials of the landmines ban. The wager, of course, of negotiating a treaty among the like-minded alone (even though the club of the like-minded has eventually grown to include numerically the vast majority of states) was (and is) that the treaty will eventually gain adherence even from those who were not in the beginning like-minded.53 Sixth, governments eventually began to come on board the landmines ban cause for three principal reasons. NGO pressure, first, brought them to an awareness of the genuine extent of the problem and put it on their policy agendas. Many governments recognized, second, that for them the decision to ban landmines was essentially cost and risk-free: it was unlikely if not unthinkable that they would fight any wars, let alone wars requiring mines. In any case, many of the European states favouring the ban knew (as members of Nato which had, the alliance notwithstanding, decisively disarmed themselves during the course of the 1990s) that should the unlikely moment of war appear, the United States would fight it, as occurred in Kosovo, because only the US would have the weapons and troops.54Finally, numbers of the medium-sized powers, including the Nordic countries and such lesser Nato powers as Canada, came to see the campaign to ban landmines as an important counterweight to the political hegemony of the United States; they perceived an alliance with international NGOs as providing ideological pressure against not only America's material advantages as the world's superpower, but against its assertion of moral and political legitimacy in setting the terms of such things as the use of landmines not
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This can be contrasted with the usual approach of disarmament treaties such as the Chemical Weapons Convention or the Biological Weapons Convention,each of which was many years in negotiations and discussions. As of this writing, 11 November 1999, the Ottawa Convention has garnered 136 signatories and accessions, and 89 ratifications. A convenient, if unofficial, way of checking on signature and ratifications is to consult www.mines.gc.ca See John R . Rolton, Senior Vice President. American Enterprise Institute. Testimony Refore the House International Relations European Defense Subcommittee, 12 November 1999, for a useful discussion of the US, Nato and Europe on defence issues.
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around the brutal facts ofAngola and Cambodia, but instead around the US military's war-fighting doctrines in the Korean penin~ula.'~ Resentment of US hegemony should not be overlooked as at least a residual reason for participation in the campaign. As the editors of To Walk Without Fear expressed it, '...small and medium-sized states can, in partnership with global civil society, overcome great power opposition; the US does not always have to lead in the new post-Cold War e n v i r ~ n m e n t . ' ~ ~ Seventh, and the most far-reaching in its implications, the ban campaign by its end stages was conceived by sympathetic governments, United Nations institutions, and the international NGO movement as being a genuine partnership between NGOs, international organizations and sympathetic states - between, so to speak, public and private. The 'Ottawa process', so called -the diplomatic and international NGO processes leading up to the December 1997 treaty-signing ceremonies in Ottawa reflected a decision by the Canadian government, among others, to put very significant resources and prestige behind the ban campaign." The famous press conference held at the end of the critical December 1996 Ottawa planning meeting, including parallel meetings of NGOs and states, at which the Canadian foreign minister, Lloyd Axworthy, made the surprise, radical announcement that Canada would hold a treaty signing ceremony a mere year later, electdied the activist world. But it also, to a remarkable extent, electrified the sympathetic diplomatic and international organization worlds as well - and, not insignificantly, infuriated the American delegation, which had not been warned in advance, although the NGO activists had been notiied to orchestrate a 'spontaneous' standing ovation.s8Yet that event was preceded by numerous smaller, regional conferences designed to build support for the treaty; in these conferences the model was the same partnership of
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See the earlier references to Chirac's 4 November 1999 speech and accompanying discussion. Cameron et al., supra note 39, at 1 3. 'lh assert that the landmines campaign has 'overcome' great power opposition is, however, surely illusory;more accurate would be to say that it has ignored the failure of the United States, Russia, China, India, Pakistan, Israel, and others to join the Ottawa Convention. Whether the wager that lhz like-minded slabs can persuade the unlike-minded lo join a1 some p i n 1 is a wager and one which I have always favoured taking -but it is wishful thinking, the effect of focusing on the formalityof the Ottawa Convention.a mere piece ofpaper, rather than on the goal it merely serves,to ban landmines, to speak ofovercoming that which has as yet barely been confronted. The Ottawa Convention is a great achievement. but it is, frankly, the childishnessof small and weak states to think that tweaking the noses of the great powers by signing a treaty opposed by those powers means 'overcoming' them. See Tomlin, 'On a Fast Track to a Ban: The Canadian Policy Process', in To Walk Without Fear, supra note 39, at 185. It needs to be understood that the so-called Ottawa Process was a term coined by diplomatsto describe the events between the planning meeting in Ottawa in December 1996, when Canada publicly committed itself tu signing a ban treaty a year later, and the treaty signing in Ottawa in December 1997, including several preparatory drafting sessions, the most important of which took place in Oslo in September 1997. It was a critical period for the campaign; however, the international campaign had been underway since 1992, long before the Ottawa Process existed. For a dcscription of thc cvcnt, scc Camcron, 'Democratization of Forcign Policy: Thc Ottawa Proccss as a Model', in To Walk Without /:ear,supra note 39, at 438: see generally 'l'omlin. 'On a Vast 'l'rack to a Han: The Canadian Policy Process', in To Walk Without Fear, supra note 39, at 185.
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states and NGOs, holding meetings in parallel in such places as Mozambique and Cambodia. In effect, international NGOs and the core ban states had decided that they had much to gain in pursuit of the common goal of a ban by leveraging off one another.
B The Partnership Between 'International Civil Society', Sympathetic States, and International Organizations This partnership between international NGOs, on the one hand, and sympathetic states and international organizations, on the other, bears closer examination, because it is regarded as a principal, if indeed not the principal, legacy of the landmines campaign, and the central element in the new template envisioned for international l a ~ - m a k i n ~Most . ~ ' of the writers in To Walk Without Fear hail this belief fervently, and it is today widely and equally fervently hailed by the international activist community, as well as by the policy makers of sympathetic governments and international organizations. The ban campaign and its forging of a partnership between international public institutions, including sympathetic states, and international civil society, so-called, is the model of a new and better way of creating international law. As Canadian Foreign Minister Axworthy put it: The need for new partnerships to address global problems and the increased power wielded by a wide range of state and non-state actors intersected in the landmines campaign ... it brought together a mixed group of players into a coalition without precedent ... The landmines campaign was the harbinger of the new multilateralism: new alliances among states, new partnerships with non-state actors, and new approaches to international governan~e.~'
And indeed, several international campaigns are now underway drawn largely from this model - the Rome Statute process toward the ICC, the campaign spearheaded by the ICRC and Human Rights Watch to ban blinding laser weapons,
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This extends even to a disturbing trend, which is the growing dependence of the international NGO campaign on funding from sympathetic states, such as Canada, to continue the vital post-Ottawa Convention work of monitoring compliance with the treaty. Until recently, and certainly in terms of ovcrall dollars contributcd, thc only non-statc fundcr of thc Landminc Monitor - cnvisioncd as thc primary report annually monitoring treaty compliance-has been the Open Society Institute Landrnine Project, which has given several hundred thousand dollars in support of Landmine Monitor directly and to Human Kights Watch to support that work. But the Open Society Institute Landmine Project -I am a member of its advisory board, which makes decisions regarding funding from its approximately $1 million a year -is gradually going out ofbusiness, and it is possible that no other private donors will step in to take its place, at least not in significant amounts. The picture that this paints is quite a different one from international NGOs working in 'partnership' with sympathetic states and international organizations: instead, it paints the disturbing possibility of international NGOs working as grantees and subcontractors for states from whom they receive all their funding. Over time this would likely severely hamper the independenceof the international NGOs and be a most unfortunate outcome. See konornist (US edition). NGOs: Sins of the Secular Missionaries, 29 January 2000, at 25-27. Axworthy, 'Towards a New Multilateralism', in To Walk Without Fear, supra note 39, at 4 5 2 4 5 3 .
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and the rapidly growing campaign against the use of child soldiers, among prominent example^.^' As Kenneth Roth, executive director of Human Rights Watch, has put it: The landmines campaign ... can be seen as a model of what is to come ... already the focus has shifted forward, with NGOs looking to build similar partnerships with small and medium-sized governments on other ~ a u s e s . ~ "
The template has certain key assumptions, however, few of which have been critically examined. The central assumption underlying the idea that the landmines campaign is a new and better way of doing international lawmaking is that international NGOs are somehow 'international civil society'. The conceptual essence of this phrase is that international NGOs are somehow the international equivalent of what, within a single society, social and political theorists have long called 'civil society'." If that is so, then international NGOs are a species of 'intermediate' institution -neither state nor international organization, yet neither market nor private business enterprise. They are instead the so-called 'Third Sector' - voluntary civic and citizens' organizations, the international equivalent, apparently, of domestic society's churches, civil liberties organizations, service clubs, literacy volunteers, and all the structures of volunteerism that are so celebrated in Western democracies nowadays.64 As a consequence, according to the editors of To Walk Without Fear: Scc post-confcrcncc notcs to thc Confcrcncc on Child Soldiers, Washington Collcgc of Law, Amcrican IJniversity,Washington DC, April 1998. The model for organizing is nearly the same in each case, and indeed the international NGO actors and staff are often the same: e.g. Human Rights Watch has taken a lead role in each, and Stuart Maslen, who worked for Unicefon landmines, has become the coordinator of the international NGO child soldier campaign. See also, for a critical commentary on the child soldiers campaign, Ralph Peters, 'Someties It Takes a Child to R m a Village', Wall Street Journal, 1 February 2000, opinion page. Roth, 'New Minefields for NGOs: After the War on Landmines. These Organizations Started New Campaigns'. Nation, 13 April 1998, at 22. For an exceedingly uncritical, indeed celebratory statement of the new 'international civil society' ideology, see Shaw, 'Civil Society and Global Politics: Heyond a Social Movements Approach', 3 Millennium: Journal oflnternational Studies (1994) 650. Scholarly literature on the concept of 'civil society' fills libraries; it is highly contested terrain, as a political, historical, and sociological maller. Ralher than enter lhal (important) debab hew, I will simply refer the reader to three general source books and their accompanying bibliographies: ].A. Hall (ed.) Civil Society: Theory, History, Comparison (1995): J.L. Cohen and A. Arato. Civil Society and Political Theory (1992): and John Keane (ed.)Civil Society and the State (1988). The international activists. bureaucrats, and diplomats who so freely use the term these days have in mind one central idea in an otherwise largely uninformed use of the term: they mean organizations which are neither private business enterprise nor organizations of the state or international public institutions -NGOs, in other words. It perhaps bears noting, at least, that this is not how Adam Ferguson. Adam Smith, Hobbes, Locke, Hegel or M a n would have understood the tern: perhaps de Tocqueville would have, but perhaps not. See e.g. M.B. Becker, Tire Emergence ofCivil Suciet~in the Eighteenth Century: A Privileged Moment in the Histury ofEngland, Scotland, and France (1994). Does its pedigree matter, when its users seem generally too ignorant of its origins to have adopted it from any specific historical tradition? Possibly not, but on the other hand it may say something about the shallowness of the liberalism endorsed by default, as it were, by partisans of liberal intcrnationalism - a libcralism without roots dccpcr than thc past scvcral dccadcs. bcaring thc many flaws of a specifically American rights-based liberalism, of the kind criticized by John Gray in Gray, Enlightenment's Wake:Politics and Culture at the Close oltht- Modern Age (1995) and especially his essay in
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Governments working together with global civil society can achieve diplomatic results far beyond what might have been possible in the Cold War era... The emergence of global civil society holds the promise of making existing international institutions more democratic, transforming them through innovation and experimentation, and anchoring them in world
International NGOs, because they are 'international civil society', are therefore a force for democratizing international relations and international institutions and, moreover, the authoritative bearers of 'world opinion'. They are therefore the legitimate representatives in the international sphere of 'people' in the world, in a way in which their states, even democratic states. and their state representatives, are not. International NGOs therefore have authenticity, legitimacy and authority of the 'people' of the world in a way that states and international organizations do not, and therefore ought to have a seat at the table ofpower. As Foreign Minister Axworthy put it in an address to NGOs in the midst of the Ottawa process: One can no longer relegate NGOs to simple advisory or advocacy roles in this process. They are now part of the way decisions have to be made. They have been the voice saying that government belongs to the people, and must respond to the people's hopes, demands and ideals. 66
Thus, international NGOs are 'international civil society', international civil society is the voice of the people of the globe, the voice of 'world opinion', and so states and international organizations must make a place for these NGOs at the negotiating tables, in the halls of power, because if they do not, these states - even, once again, democratic ones - and international institutions risk illegitimacy. Or as Maxwell A. Cameron puts it: The Ottawa Process d e m o c r a t i d foreign policy within the framework of existing representative institutions by using a partnership with civil society to expose policy to the test of publicity ... The public diplomacy practised in the Ottawa Process compelled policy-makers to provide public reasons for their actions and exposed them to criticism from civil society by bringing an NGO coalition into the policy process, both as domestic partners and international allies.67
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the Times I.iterary Supplement (Inndon) 28 April 1 Y 5, at 2 8 : '. .. Americocentric liberalism has little, if any, salience in other parts of the world where the poltical agenda is governed not by individualistconceptions of law and rights but by the need to work out temsof peaceful coexislence among dineren1communilies'. Cameron et al.. supra note 39. at p. 13. Axworthy, 'Notes for an Address by the Honourable Lloyd Axworthy. Minister olFore~gnALTairs, to the Oslo NGO Forum on Banning Anti-Pemonnel Landmines', DFAI'r (Canada) Statement, Oslo. 10 September 19Y 7. Cameron, supra note 58, at 441443. One important weakness in much of To Walk Without Fear, including Cameron's, is that, being a Canadian book, funded partly by the Canadian government. and having largely Canadian contributors, its articles very often fail to distinguish between the actions and. indeed, legitimacy of civil society within Canada and those of international NGOs acting in the world at large. It is a measure of just bow unreflectiveis the extension of civil society by metaphor from particular societies to the olanet at large that these contributors, including Cameron, fail even to discuss the possibility that the authenticity of the public voice brought by institutions of civil society within Canada upon the Canadian government simply has no correlate in the international world, because all the world is not a 'society'.
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The seriousness with which states took the view that the NGOs were both the voice of world opinion as well as necessarily their partners was reflected in the number of state delegations which had even appointed staff of international NGOs as members to their delegations. In some cases that meant that some countries essentially handed their policy and negotiating apparatus to activists; in other cases, the government had its own line, usually sympathetic but not identical to the NGO position, but allowed the NGO inside access to the negotiations. And the Oslo drafting sessions, which developed the draft treaty itself, allowed not only the ICRC access in its traditional observer role -with rights of intervention and to be heard -but granted the same to the ICBL. And why not, since the negotiations took place not under the aegis of the United Nations or some other agglomeration of all states, but instead merely as a group of like-minded countries that could set any rules of participation they liked. It is an approach that has gained momentum in other spheres, including the process of negotiating the Rome Statute; the moment of 'international civil society' has apparently come, at least within the imperium of international legalism.
C But Who Elected the International NGOS?~' Perhaps the point at which to commence a critique of this apparent victory of democracy through international civil society is to ask why international bureaucrats, for example, those who work for international organizations, have become so eager in recent years to embrace the language of international civil society? One can scarcely attend a meeting of international elites of one kind or another at which an international civil servant speaks these days without hearing, no matter what the topic, a sort of adulatorio to NGOs, a hymn of thanksgiving for 'international civil society' and how it is making international bureaucracy more accountable and effective. As one who has always worked from the NGO side of all things international, I can report what we all know, that it was not always this way. Why this shift? And why now? It would be pleasant to think that the reason is that international bureaucracy has woken up to the fact of the effectiveness of the international NGO sector; it has come round to understand that public international organizations, like governments, are not very effective at the rapid and eacient provision of broad ranges of services. The dawning of a genuine humility - and not merely passivity - of international organizations, and a concomitant willingness to work with partners who may or may not have the credentials of states, may not be international civil servants or diplomats or anything else official, and certainly do not have the pension plans of international civil servants - well, this would all be to the good. And no doubt this is part of the explanation, especially in the changes of hearts and minds of many in international
This entire section, including the title, owes a great deal to David Rieff, both conversations over many years and to his rcccnt cssay, David Ricff, 'Thc Precarious Triumph of Human Rights', New York Tlmes Magazine. X August 1999, Section 6, at 36. This is not to suggest, however, that he agrea with all of it; Rietf, to dart with, is an unapologetic imperialist.
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bureaucracies to understand that international NGOs are not, per se, their enemy or, worse, simply irrelevant. No one believes they are irrelevant any more. Still, it seems to me unlikely that this is the whole explanation. For one thing, this praise is nearly always, in my experience, offered within the very specific ideological language of 'civil society'. It is not merely pragmatic praise for non-governmental
agencies and their performance; it is praise of a theory of politics framed within the terms of a discourse of politics, taken more or less directly out of the theoretical literature of 'social movements' and 'civil society'.69It is scarcely necessary to adopt so wholeheartedly the whole theoretical apparatus of the Third Sector, the 'independent sector', a theory that is fundamentally about the democratic legitimacy of international NGOs, merely in order to praise their good works. But adopt it the international bureaucracy has. And an important reason why the bureaucracy has adopted this theory of politics, of the legitimacy of the independent international NGO sector - long less resisted than ignored, treated as gadflies and irritants - is that public international organizations themselves are in desperate need of legitimacy. That is what they look to international NGOs to provide for them. But of course, this is to ask, why a crisis of legitimacy for public international organizations now, let alone the further question of how it is that international NGOs can help provide them legitimacy? The simplest answer, it appears, is that with the end of the Cold War, with the unfolding of globalization - including the formation of international elites across sectors of international business, international organizations and international NGOs - and the consequent raising of expectations within those loose international elites about the objectives, abilities, and responsibilities of international organizations, international organizations have volunteered and been volunteered for a variety of tasks that, in a word, require forms of legitimacy that international organizations have never had. By 'legitimacy' in this context I mean merely that institutions act and be understood to act with authority that is accepted as proper and moral and just -'right authority', to use the language of Augustine and Aquinas." I do not impute to it here any special theoretical connotations; I am not locating it within the several contemporary theories of legitimation, such as ~abermas's." I mean it in its most ordinary sense. The only particular requirement I will adopt here is that legitimacy in today's world requires that it be perceived to be legitimate by those over whom authority is exercised. In other times and places it might have been enough that one was the king, ordained of God, and perceptions of the peasantry be damned, but I take it we are beyond the
69
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I have already given some references to the background literature on civil society: with reference to the equally voluminous literature on 'social movements'. see S.M. Lyman (ed.). Social Movernenls: Critiques, Concepts. Case Studies (19951, and also the numerous articles in the social theory journal Telos throughout the 1980s. The classical terminology, that is, of the criteria of the just war. J. Habermas. Legitimation Crisis, trans. McCarthy (1975).
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point at which legitimacy can be separated, for very long, anyway, from its perception; we call tihis apperception 'democracy' and the consent of the governed.72 Given that this article is addressed to a readership of international lawyers and international law professors, I believe I am safe in assuming that my readers fundamentally believe that international organizations, and their underlying concept of 'world government' - what is today taken as the vision of Grotius7' - are legitimate, and deserve to be understood as the world's constitutionally supreme sources of authority and the exercise of power. At a minimum, I think it safe to assume that my readers believe that, in an 'objective' sense, the rule of 'right reason' international order - ought to govern the world - with wisdom, of course, and properly conforming to the rule of subsidiarity, and deferencein all matters not of vital concern to local authority, and humility as to what can reasonably be dictated to the periphery from the centre, and so on. But international, finally and supremely. My experience of international public lawyers is that they believe this so thoroughly that it is risking something like anathema to ask them for a defence of the legitimacy of what is not quite 'internationalism' (which, after all, can mean multilateralism among genuinely sovereign states), but is instead, as this article has used it, 'supranationalism' in all its glory.74Public international lawyers tend to form a church of those converted to belief in supranationalism, and it thus seems to them it seems to you -deeply pernicious to ask for a proof, in effect, of what in this church constitutes the doctrine of transubstantiation and the immaculate conception. I have already suggested that this conviction on the part of public international lawyers is a belief in empire,75the empire of international legalism, and it is a belief that for many of you -perhaps most or nearly all of you -is fundamentally religious and mystical in nature. You can scarcely imagine it otherwise. For those for whom the virtue of this empire is a dogma beyond question, an article of faith, the only question of legitimacy is thus my requirement -we might call it the 'democracy requirement' -that legitimacy is inseparable, in today's world, from its perception by those under authority. But because you cannot imagine that supranationalism is truly illegitimate, the question of achieving legitimacy in the 'perception' sense is simply a matter of management of the masses to create this perception of legitimacy. Because the brutal fact remains that international organizations as they exist today do not have the perception of legitimacy to carry out the functions that international elites would assign to them, respect for legitimacy either
72 73
74
75
This discussion finally returns, in other words, to the methodological discussion of Part 2. I say 'today'because I am not so certain that Grotius would have conceived of it in those terms, but I will not pursue that here. I was, however, extremely pleasantly surprised at how civilly and courteously my admittedly heterodox views were received by attendees at the conference at which this paper was first presented, at the University of Michigan. September 1999. It was clear that these remarks were somewhat shocking to several of the conferees, but although my views were vigorously disputed, it was done in a spirit of courteous dcbatc that I grcatly apprcciatcd. I lcarncd a grcat deal from it and I hopc that othcrs lcarncd fmm me. See Part 2 of this article.
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from the planet at large or from the specific populations who would be directly under their governance.'' True, some populations have genuinely jettisoned the idea of national identity or else submerged it into something else, into Europe if not the world. What does it mean t o b e D u t c h , f o r e x a m p l e , e x c e p t to be E u r o p e a n ? W h a t does i t mean to b e Canadian ( a t
least in the eyes of the Canadian government, to judge by its efforts to control and purify its culture through broadcast and Canadian culture-content rules), except not to be American? There are many more populations, to be sure, that have embraced the ideal of an empire of international legalism in order to pursue the dream of ethnic, religious or national identity under the aegis of the emperor. I once had a conversation, not long before the Yugoslav Wars broke out, with a Croatian nationalist who was simultaneously a genuinely liberal humanist.j7 For him the crucial task was to take Croatia inside the then-European Community, and he wanted to be certain that the EC would be responsible for currency, central banking, fiscal policy and defence. Surprised, I asked him why he wanted that empire to take over what I would have regarded as the quintessential functions of the modern state, the sine qua non of sovereignty; the answer was that all those were secondary and a distraction from the main issue, which was the control of national culture. What he insisted upon keeping under state control, in the name of 'Croatianism', were the radio, television and the schools. The empire of the EC was to provide the guarantee of nationalism and conditions for the purity of Croatian culture. Notwithstanding those populations that have made their peace with supranational empire, whether by seeing it as a thing into which to submerge oneself or as a space in which to establish an identity as against presumed cultural enemies closer to home,7s the world system of international organizations inevitably has a huge 'democracy deficit'. It is perceived, both by the world and by its servants, to have a democracy deficit because democratic legitimacy is precisely what it lacks. No one would seriously dispute this, I think, not even the most hardened supranationalist. In my view -I will not argue for this claim here, but simply declare it -the democratic deficit cannot be overcome by any organization that proposes to organize at the level of the whole 7b
"
As de Waal, supra note 36. at 19, expresses it with respect to Bosnia and Nab- but the lesson is similar elsewhere and with respect to UN operations - 'Ultimately. Nato's role in Bosnia is underwritten, not by the mandate to hand over to newly developing Bosnian political institutions, but by its ability to threaten ovcrwhclming forcc'. Onc might also rccommcnd thc account of thc downing of the US hclicoptcr that precipitated the US military withdrawal from Mogadishu. M. Uowden, Black Hawk Down: A st or^ of Modern War (1999), for a ground-up account of the dilliculties of outside imperial forces in gaining legitimacy even through the barrel of a gun: for an account of theintervention and aftermath in Haiti, see B. Sacochis, The lrnmuculute lnvusion (1999). The result is a tragic confusion of the roles of 'police' and 'military', with the possibility of large loss of life; for a discussion specifically of the differences in those roles and how the attitudes of international elites confuse them, see Anderson, 'Shame and the Honor of Soldiers'. Panel on Law and Literature, American Society of International Law, April 1997, published in ASIL Proceedings. Author conversation, 7agreb. Croatia, 1991. This is essentially the argument that George Konrad, the Hungarian intellectual and novelist, made for how the Western democracies erred in fostering the Yugoslavia breakup. See Konrad, 'Nationalism Unleashed'. Nation. 3 May 1999, at 4.
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planet. I likewise doubt it can be overcome even within the physically, culturally, and economically much smaller and much more homogenous European Union. Size and the number of people governed ultimately matter, and the limits of what can genuinely be called a 'democratic' political order are smaller than that which is economically efficient to contain within the regime of a genuinely global common market. The limits of democratic polity and the size of the economically efficient common market are not necessarily coextensive. But if that is so, and democracy cannot be had for the planet as a whole 'thing', but only in its particular parts - one hopes, of course, in each and every one of them this does not change the fact that the legitimacy necessary to exercise power, and the necessary perception of that legitimacy, are obtained in this world only on the basis of democracy. The spread of democratic ideology worldwide is a great achievement, but unfortunately for the legitimacy of international organizations also a great inconvenience. It is inconvenient because such legitiiacy as they have - at least their legitimacy to carry out the ever-stronger functions that globalizing elites79,whether in governments, international organizations, much transnational business, and of course international NGOs, would l i e them to carry out, such as keeping the peace, managing the world economy, trying war criminals, and so on - has not hitherto been based upon democratic assent. Yet now it is urgently needed, and where to get it? The answer, unsurprisingly, is to turn to the only part of the so-called international community - i.e., international elites - that appears to have a connection with 'people': international NGOs. The sudden obsequiousness of international organizations toward international NGOs can be simply explained that in the absence of being able to look to actual populations of actual people, because that is at least unlikely and perhaps, if I am right, impossible, then international NGOs are asked to stand in for the 'people'. International organizations claim to have overcome the democratic deficit as an impediment to their legitimacy by having as their partners, and having the moral and political approval of, international NGOs, the voice of 'world opinion', and the loud and incessant invocation of 'international civil s~ciety'.'~If the issue is effectiveness in affairs around the world, then the tone of international civil servants need be nothing more than pragmatic and specific to circumstances. If, on the other hand, the issue is legitimacy in a democratic sense, then the tone of international civil servants properly ought to be the ideologically inflated language - the wholesale adoption of metaphors taken from domestic democratic society - of 'international civil society'. Such an explanation denies nothing to the admirable achievements of
79
Elsewhere, I have referred to these elites in 'class' terms: see Anderson. 'Secular Eschatologies of the Internationalized New Class', supra note 38. Here in this article. I am deliberately using the term 'elites' to avoid the theoretical connotationsof class; I think that one can make out the argument in conventional class theory, but I do not think it is necessary baggage for the argument of this article. This seems to be at least partly the thinking of the Nobel Peace Prize Committee in awarding the prize to such groups as thc ICBL. Scc thc sceptical articlc by Scllars, 'Thc Ncw Impcridists: MEdEcins sans fmntieres is at the Heart of the Modern Global 13stablishment'. Spectator (Iondon),23 October 1999, at 26.
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many international NGOs, but does at least offer a reason why the praise has become so ideologically extravagant. The process of legitimation is symbiotic and not merely parasitic, however. International NGOs, for their part, are happy to accept the accolade of 'international cwil society'. the voice of the people. and so on, for the obvious reason that it increases
their power and authority within international organizations, international elites, and beyond. Why shouldn't an international NGO want to be described as the fundamental source of legitimacy for international organizations? It can only gain from the inflation of rhetoric. International organizations and international NGOs can be seen as locked in a romance, a passionately mutual embrace, offering each other love tokens of confirmations of legitimacy and eternal fealty, but, as with lovers everywhere, oblivious to the world outside and oblivious as to whether anyone else thinks that such mutual legitimations make either one any more 'legitimate'. To be sure, none of these dark objections makes any difference if it were the case that international NGOs really are the authentic voices of democracy, really are authentic intermediaries of the 'people', and so really confer legitimacy on international organizations. If that were so, then even my view that genuine democracy at the level of the whole planet sufficient to grant legitimacy to 'strong' supranationalism is impossible might be overcome by the existence of democratic intermediaries. But this is implausible, for at least two reasons. First, what I have termed in this paper 'international NGOs' are not very often connected, in any direct way, to masses of 'people'. International NGOs, in virtue of their role to operate globally rather than locally, are fundamentally elite organizations. There are exceptions, to be sure, but they are prototypically large religious affiliations; the Roman Catholic Church is the prototype of a genuinely global organization of civil society that is organized simultaneously locally and transnationally, drawing from the masses of the 'people', very rich and very poor and everything in-between. But one does not see international organizations falling over themselves to seek legitimacy from the Catholic Church or from any other church. There are certain large secular exceptions, as well: Amnesty International is But that membership perhaps one, in that at least it has a large base rnernber~hip.~' comes mostly from wealthy countries, and its membership even in those countries tends to be educated and at least middle class; Amnesty and the Catholic Church are not remotely in the same universe when it comes to the representativeness of their members. And in any case, the far more typical 'international' NGO of the kind whose approval and favour international organizations seek is much closer to the model of Human Rights Watch - a relatively small, highly professional, entirely elite organization funded by foundations and wealthy individuals in the Western
S e e the Amnesty International website at www.amnesty.org fbr more information on Amnesty's membership and composition.
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democracies, and having no discernible base outside international elites.'* This is not to denigrate Human Rights Watch or the vital work it does, but it would be the first to declare that its legitimacy is not based on democratic roots among the masses but on its fidelity to its own conception of the meaning of international human rights. The legitimacy, if any, it confers upon international organizations in particular circumstances is on account of their fidelity to Human Rights Watch's conception of the meaning of international human rights. It does not represent anyone other than itself and does not pretend to. International NGOs collectively are not conduits from the 'people' or the 'masses' or the 'world citizenry' from the 'bottom up'. They are, rather, a vehicle for international elites to talk to other international elites about the things -frequently of undeniably critical importance - that international elites care about. The conversation is not vertical, it is horizontal. It has a worthwhile, essential function in making the worldsometimes at least, a better place - but it does not reduce the democratic deficit. Second, if the idea of 'international civil society' is drawn by an analogyg3to civil society in domestic society, then it bears noting that at least in the United States, with its vigorous and diverse civil society, civil society is not conceived of as being a substitute for democratic processes, let alone conveying democratic legitimacy. On the contrary, the glory of civil society is precisely that it is something different from democracy and democratic processes. The glory of civil society is not that it speaks with the authenticity of the 'people', the 'masses', the popular will, the general will, or with a single voice at all, but instead that organizations in civil society speak each for itself. Put bluntly, the glory of organizations of civil society is not democratic legitimacy, but the ability to be a pressure group. Organizations in civil society do not share a common vision of the good, nor need concern themselves with the common good, in any holistic fashion at all if they choose not to. They have particular agendas and particular issues and particular constituencies. But for that very reason, they are not the voice of democracy and do not convey, at least in real democracies -rather than faux-legitimate systems like those of international organizations - democratic legitimacy. As David Rieff has aptly expressed it: Human rights workers sometimes talk of their movement as an emblem of grass-roots democracy. Yet it is possible to view it as an undemocratic pressure group, accountable to no one but its own members and donors that wields enormous power and influence. For example.
83
See Human Rights Watch's website, www.hrw.org, for more information on membership and composition: see also its United States informational tax filing as a non-profit organization on Form 990, on file at the United States Internal Revenue Sewice or at the offices ofHuman Rights Watch, New York (but soon to be online through new tax regulations). As earlier noted, however, I think this analogy is inappropriute, for the reason that I do not think that domestic society and international relations, however kequently termed 'international society' or the 'international community', are usefully construed in parallel. To put it another way. I think the idea of the 'international community' is to presume a false conclusion; I do not think it exists in any sense in which community means something in domcstic socicty. It is a dangerously mislcading metaphor, thc metaphor that causes liberal internationalists to believe. for example, that intervening in Kosovo is not really war, it is merely an exercise in policework.
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would there have been a war in Kosovo without the human rights movement? As a supporter of the war in Kosovo, I applaud the result. As a democrat, I worry.84
Pressure groups, organizations of civil society,depend upon democracy and the rule of law, and reinforce those institutions as well, but they are not a substitute for them. The irony is that many of those who believe that they have discovered i n
'international civil society' the elusive democratic connection would not for a moment imagine such a thing within their own, genuinely democratic, domestic societies: they would recognize them for precisely what they are, political pressure groups. This is not to deny the value of political pressure groups: at their best, they make all of society a better place, and the same is true of the world at large, the planet, but they are not a substitute for democracy. They speak for themselves, and so always leave open the question Rieff has posed, with admirable insouciance, 'so who elected the NGOs?'''
4 International NGOs, Civil Society, and Democratic Legitimacy This discussion has not strayed so far from the question of the landmines ban campaign as might be imagined. The interpretations of the political meaning of the ban campaign, and its legacies for the international system and lawmaking, held widely among international elites and expressed with considerable eloquence, especially, by the writers in To Walk Without Fear, presuppose an extensive ideology. To challenge the conclusions they reach about the legacies of the international ban campaign requires that one challenge the presumptions, often very large, which their ideologies make. I have endeavoured to do so by counterposing, in necessarily sketchy form, an alternative ideology, one which I suggest better fits the facts about international civil society and international organizations than the one prevalent among international elites. I have further suggested that there are powerful motivational reasons among international elites themselves for why they would adopt a view of democracy and civil society that I doubt very much they would adopt with respect to domestic society. The point, therefore, is that the 'partnership' envisioned by international elites between international civil society, on the one hand, and sympathetic states and international organizations, on the other, is not necessarily what it seems.86I am a strong supporter of a comprehensive global ban on landmines, but I am a supporter
'* Rieff, supra note 68, at 41. David RieIT, speaking at a panel discussion on landmines and international civil society, Washington College of Law. American University, 25 Pebmarv 1998. 86 I take it for granted that the position of sympatheticstates in the landmines campaign is sufficiently close to that of international organizationsand. more generally, supranationalismas to render a discussion of them separately in their relation to international NGOs unnecessary: the discussion would be much the same.
85
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explicitly on the basis of what the leaders of the landmines ban campaign are, namely, members of an emergent international elite. I am perhaps more strident in raising this concern than others, but I am not alone in having it; Larry Cox, a former Amnesty International staff member now at the Ford Foundation, has said: Twenty years ago, when you went to a meeting at a human rights group, you saw all kinds of people. But these days, you usually find that most of the people there are either lawyers or human rights professionals. To me, the human rights movement has not been successful in capturing the imagination of a broad group of people -the way, whatever I may think of them, a strong civil-society group like the National R a e Association has done.87
A ban on landmines is, to my mind, the morally and politically right thing to do, and I hope and, as an international NGO activist, strive hard to cause the United States to join the Ottawa Convention. But no matter how many non-governmental organizations across the globe adopt this position, they do not 'democracy' make. They -we - are pressure groups, political lobbying groups, and they do not confer democratic legitimacy, least of all upon the profoundly undemocratic organs of the international system. Even within domestic society, civil society and its organizations are not themselves the 'democratic process'; they are part of the pressures brought to bear on the outcomes of the democratic process. Organizations of civil society are by their nature particular, and lack the ability to confer general legitima~y.'~
87
Quoted by RiefT, supru note 68, at p. 41. It will be noted that this paper was drafted before the events at the Seattle World Trade Organization meeting. Those events have raised a serious breach within the emergent international elites I have described in this this paper, between at least some international NGOs and forces of global capitalism. The elite international human rights organizations occupy a peculiar position within that breach, both bccausc thcy stand so asscrtivcly for intcrnationalism and bccausc thc international human rights movement has relied so strongly on global capitalism to open up non-western societies to its proselytizing. But the analysis ofthe Seattle WTO meeting will to have to be another paper.
Law Adjudication
The Amicus Curiae before International Courts and Tribunals LANCE BARTHOLOMEUSZ* TABLE OF CONTENTS I
INTRODUCTION .................................................................................... 211
I1 PROCEDURE AND PRACTICE OF INTERNATIONAL COURTS AND TRIBUNALS .................................................................. 212 1) INTERNATIONAL COURT OF JUSTICE ................................................................212 1.1 Contentious proceedings .................................................................... 212 1.2 Advisory proceedings ........................................................................ 217 1.3 Concluding remarks .......................................................................... 225 2) INTERNATIONAL TRIBUNAL FOR THE LAWOF THE SEA ......................................226 227 2.1 General ............................................................................................. 2.2 Contentious proceedings .................................................................... 228 2.3 Advisoryproceedings .......................................................................... 230 2.4 Concluding remarks ......................................................................... 231 ...........................................................232 3) EUROPEAN COURT OF HUMAN RIGHTS ........................................242 CRIMINAL COURTS AND TRIBUNALS 4) INTERNATIONAL 4.1 International Criminal Court ............................................................ 242 4.2 International Criminal Tribunalfor the Former Yugoslavia (ICTY) and International Criminal Tribunalfor Rwanda (ICTR) ................ 243 4.3 Special Courtfor Sierra Leone .......................................................... 253 5) WORLD TRADE ORGANIZATION, DISPUTE SETTLEMENT BODY ..........................254 6) AMICICURIAE AND ARBITRATION: NAFTA AND ICSID TRIBUNALS ..................265 6.1 Introduction ........................................................................................ 265 6.2 NAFTA ................................................................................................ 265 6.3 ICSID ............................................................................................... 270 6.4 Concluding remarks ...................................................................... 272 I11 GENERAL CONCLUSIONS
.................................................................. 273
273 1) JURIDICAL NATURE OF THE AMICUS CURIAE BEFORE INTERNATIONAL JURISDICTIONS 1.1 When can an amicus curiaeparticipate? (Criteria ratione materiae) 274 1.2 Who can be an amicus curiae? (Criteria ratione personae) ................ 275 ........................ 276 1.3 The court or tribunal 5 discretion ........................ . .
* Legal Officer. United Nations Relief and Works Agency for Palestine Refugees in the Near East. Headquarters. Gaza . The views expressed herein are mine and are not intended to represent the opinions of UNRWA or the United Nations . I would like to thank Lucius Caflisch and Claire Mitchel for comments on earlier drafts.
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1.4 Form and content of amicus curiaeparticipation ..............................277 1.5 Functions .......................................................................................... 278 2 ) POLICY ISSUES ........................................................................................... 280 2.1 Does the amicuspromotepeaceful settlement of international disputes? .......................................................................................... 281 2.2 Amicusparticipation and the consent of the parties to thirdparty dispute settlement ................................................................................ 282 2.3 Juria novit curia and amicus participation .......................................... 282 2.4 Does amicus participation promote the legitimacy. accountability and transparency of internationaljurisdictions? ................................ 283 3) PROSPECTS .................................................................................................285
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I INTRODUCTION
Amicus curiae translates as "friend of the court". The friend of the court is, as an ICSID tribunal recently summarized, "recognized in certain legal systems and more recently
in a number of international proceedings. In such cases, a nonparty to the dispute, as 'a friend,' offers to provide the court or tribunal its special perspectives, arguments, or expertise on the dispute, usually in the form of a written amicus curiae brief or submission."] The amicus curiae is particularly prominent in the US, but is used in other common law countries and known in some civil law jurisdiction^.^ Since the 1990s the amicus curiae has become more prominent before more international courts and tribunals. But what exactly is the juridical nature of this friend of the court? What functions does it perform? What policy issues does its participation at the international level raise? And what are the trends and prospects for its use? This paper aims to answer these questions (Part III - General Conclusions) by reference to an analytical survey of the contemporary practice and procedure of selected international courts and tribunals (Part 11). In addition to the lnternational Court of Justice (ICJ), this paper examines: the International Tribunal for the Law of the Sea (ITLOS); the European Court of Human Rights (ECHR); the International Criminal Court (ICC); the International Criminal Tribunal for Former Yugoslavia (ICTY); the International Criminal Tribunal for Rwanda (ICTR); the Special Court for Sierra Leone (SCSL); the WTO Dispute Settlement Body; and NAFTA and ISCID arbitral tribunal^.^ Overall, the role of international courts and tribunals in the peaceful settlement of disputes is relatively modest. Most disputes are solved through negotiation. As a NAFTAtribunal stated in 2001 in the context of the amicus curiae, "international law and practice and related national law and practice have either ignored or given very low I Aguas Argentinas S.A and Others v. Petition for Transparency and Participation as Amicus Curiae, ICSID case No. ARB103119, 19 May 2005. See further Shelton, "The Participation of Nongovernmental Organizations in International Proceedings", American Journal oflnternational Law, Vol. 88, 1994,pp. 61 1-642, at pp. 61661 9. Although international amicus curiae practice is undoubtedly influenced by domestic practice, particularly in US courts, it is beyond the scope of this paper to conduct a comparative study of amicus practice in municipal jurisdictions and gauge its influence on the practice of international jurisdictions. I For reasons of space a number of international jurisdictions, many with relevant amicus practice, are not analyzed in this paper: the Inter-American Court of Human Rights (see further, for example, Shelton, cited at note 2, at 638440; Razzaque, "Changing Role of Friends of the Court in International Courts and Tribunals", Non-State Actors and International Law, Vol. 1, 2002, pp. 169-200, at pp. 184 187); African Commission and Court on Human and People's Rights (see further, for example, van der Mei, "The New African Court on Human and Peoples' Rights: Towards an Effective Human Rights Protection Mechanism for Africa?" Leiden Journal oflnternational Law, Vol. 18,2005, pp. 113-129); the European Court of Justice (see further, for example, Shelton, cited note 2, at pp. 628430). Although at best only a quasi-judicial body, the UN Compensation Commission made provision for amicus-type participation by Iraq and all submitting cntitics, which wcrc ablc to providc information and vicws in writing on significant lcgal and factual issues raised in individual claims: see Provisional Rulesfor Claims Procedure, Art. 16, U N Doc. S/AC.26/1992/10, 26 June 1992. For reasons of space this paper also does not consider the role of amici curiae in international conciliation proceedings.
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priority to third party interventi~n."~ Even in jurisdictions where amici curiae participate, their role is relatively modest. The changing role of the amicus curiae before international courts and tribunals should be assessed in this context.
I1 PROCEDURE AND PRACTICE OF INTERNATIONAL COURTS AND TRIBUNALS
1. International Court of Justice The International Court of Justice (ICJ) is the principal judicial organ of the United Nations and has non-compulsory jurisdiction in contentiousand advisory proceedings. Its primary clientele are States, which are the only entities able to be parties to disputes in the ICJ contentious jurisdiction, and some organs and all but one specialized agencies of the UN, which may request advisory opinions. International organizations may participate as amici curiae in certain circumstances in contentious and advisory proceedings. Although the Court was initially open to NGO participation in its advisory jurisdiction, in 1971 it locked the door, let some materials slip under the door in 1996, and then since 2004 left it slightly ajar. Unaffiliated individuals have never been welcome, even if their direct interests form part of the subject matter of proceedings before the Court. This chapter analyzes the participation as amici curiae of States, international organizations ("IOs"), non-governmental organizations ("NGOs") and individuals in the ICJ's contentious and advisory jurisdictions. 1.1 Contentiousproceedings States A State not party to a dispute may intervene in contentious proceedings if it considers that it has an "interest of a legal nature which may be affected by the decision in the . ~ Court case" or it is party to a convention the construction of which is in q ~ e s t i o nThe has been reluctant to permit States to intervene. This might indicate an overall reluctance to permit third-party participation in contentious disputes. There is no other formal process whereby States can participate in contentious proceedings, for example as amici curiae. Informally and very exceptionally, a State not party to a dispute has submitted information to the Court which the Court then considered. In Corjiu Channel, where the United Kingdom brought a case against Albania, the Court accepted, subject to reservations, a communiquk from Yugoslavia that refuted the British suggestion that Yugoslav ships had laid mines in the Channel.6 "UPS,
cited at note 24, $40. ICJ Statute,Arts. 62 and 63. See Corfir Channel (United Kingdomv. Albania), Merits, Judgment of 9 April 1949, ICJ Reports 1949, p. 4, at p. 7, discussed in Chinkin, Third Parties in International Law, Oxford, Clarendon Press, 1993, pp. 226227.
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International Organizations In principle only States can be parties to disputes before the ICJ. The English text of Article 34(1) of the ICJ Statute provides: "Only States may be parties in cases before the Court7'and the French text provides: "Seuls les Etats ont qualit6 pour se presenter
devant la Cour." As Rosenne points out, on its face the English text does not prevent non-parties from appearing before the Court but the French text ("se presenter") is arguably more restrictive.' International organizations, including the UN and its organs and specialized agencies, have very limited rights of participation in contentious proceedings. This is so even though under the UN Charter the ICJ is the principal judicial organ of the UN. The circumstances in which 10s can participate in ICJ proceedings are governed in practice by Article 34(2) and (3) of the ICJ Statute and, in principle, by Article 50. Article 34(2) and (3) provide: 2. The Court, subject to and in conformity with its Rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative. 3. Whenever the constructionof the constituent instrument of a public international organization or of an international convention adopted there-under is in question in a case before the Court, the Registrar shall so notify thc public intcrnational organization conccrncd and shall communicate to it copics of all thc written proceedings.
Under Article 34(2) participation is limited to providing "infomation", which would not ordinarily include legal argument or policy submissions, but there is insufficient practice to exclude the possibility that it does8 There has been some debate about the scope of the term "public international organi~ations".~ Whatever the possible scope under the Article, the scope is restricted in practice by the Rules of Court to "an international organization of States".1° Because Article 34(2) is "subject to and in conformity with [the Court's] rules", the Court is perfectly entitled to restrict the scope of "public international organizations", assuming that is what it has done.
Rosenne, "Reflections on the Position of the Individual in lnter Statc Litigation in the International Court of Justice" in Sanders (ed.), InternationalArbitration: Liber Amicorumfor Martin Domke, The Hague, Nijhoff, 1967, pp. 240-25 1 at p. 244. Compare Chinkin and Mackenzie, "International Organizations as 'Friends of the Court"', in Boisson de Chazournes et al. (eds), International Organizations and International Dispute Settlement: Trends and Prospects, Ardsley, N.Y., Transnational Publishers Inc., 2002, pp. 135 162, at pp. 139-140. ("[Article 34(2)] is limitcd to information - not argumcnt or policy submissions although thc stipulation is that it bc rclcvant to the case, not to the mandate of the organization.") See for example, Shelton, cited at note 2, at pp. 62M22. Shelton argues that it is not clear that Article 26 of the PCIJ (the precedent for Article 34 of the ICJ Statute) "should be considered a precedent restricting the term 'public international organization' to organizationsthat are only composed of or contain states represented by governments". In particularly Shelton notes that the International Labour Organization, a tripartite organization of mixed State and non-State membership, had access to the PCIJ in contentious cases under Article 26 through the International Labour Office, the ILO's secretariat. ' O ICJ Rulcs of Court, Art. 69(4), adoptcd 14April 1978, as amcndcd to 14 April 2005. -
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The Court has very occasionally used Article 34(2) to request information from an intergovernmental organization. For example in the Aerial Incident of 3 July 1988 the Court invited the International Civil Aviation Organization (ICAO), a specialized agency of the UN, to provide factual information about ICAO Council proceedings following the aerial incident including copies of its relevant decision^.^^ As Chinkin and Mackenzie note, despite this example, 10s are hardly lining up to offer information in contentious cases, and the Court seems barely willing to ask them to do so, even where it might be expected that certain 10s would be in a special position to provide information or views.12 Where was the United Nations Environmental Programme during the GabZkovo-Nagymarosproceediig~?'~ And could the ICAO not have contributed useful information in the case concerning the Aerial Incident of 10August 1999 and in Lockerbie?14Therewill no doubt be institutional constraints on 10s providing timely information to the Court, for example, depending on the nature of the organ competent to provide the information: an 10's secretariat will be able to respond faster than the 10's governing body.15But these constraints are not insurmountable. For example, the United Nations High Commissioner for Rehgees has intervened in proceedings before domestic courts.I6 Article 50 of the ICJ Statute provides a potential avenue for the Court to invite 10s to participate as amicus curiae in contentious cases: "The Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of canying out an enquiry or giving an expert opinion."17 The Permanent Court of International Justice ("PCIJ") had the same power, which was intended to permit it to obtain views other than those submitted by the parties.18 For Aerial Incident of 3 July 1988 (Islamic Republic of Iran V.USA), ICJ Pleadings, Vol. 11, p. 618. Chinkin and Mackenzie, cited at note 8, pp. 141-142. l 3 Case concerning the GabEikovo-NagymarosProject (Hungary v. Slovakia), Judgment of 25 September 1997, TCJ Reports 1997, p. 7. In October 1994, while proceedings in the case were ongoing, Shelton had strongly suggested that participation of third parties, in particular NGOs, was desirable: see Shelton, cited at note 2, pp. 625-626. l 4 Case concerning the AerialIncident of l0August 1999 (Pakistan v. India), Judgment of 2 1 June 2000, ICJ Reports 2000, p. 12; Question of the Interpretation and Application of the 1971 Monheal Convention ansingfrom the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. UK, Libyan Arab Jamahiriya v. USA), Preliminary Objections, Judgment of 27 February 1998, ICJ Reports 1998, p. 9. Chinkin and Mackenzie refer to five other ICJ cases in which 10 participation might have been expected: see Chinkin and Mackenzie, cited at note 8, pp. 141-142. IS This point is illustrated by reference to two ICJ proceedings in Chinkin and Mackenzie, cited at note 8, pp. 142-143. l6 See, for example, ElAli andDaraz v. Secretary of State for the Home Department, Judgment of26 July 2002, WeeklyLaw Reports, 2003, Vol. 1 , p. 95 (UK Court of Appeal). l7 Art. 50 ofthe ICJ Statute is supplementedby Art. 67 of the ICJ Rules ("1. If the Court considers it necessary to arrange for an enquiry or an expert opinion, it shall, after hearing the parties, issue an order to this effect, defining the subject of the enquiry or expert opinion, stating the number and mode of appointment of the persons to hold the enquiry or of the experts, and laying down the procedure to be followed. Where appropriate, the Court shall require persons appointed to cany out an enquiry, or to give an expert opinion, to make a solemn declaration. 2. Every report or record of an enquiry and every expert opinion shall be communicated to the parties, which shall be given the opportunity of commentingupon it.") l8 1926 PCIJ, Statute and Rules of Court, Ser. D, No. 1, Art. 50, discussed in Shelton, cited at note 2, pp. 627-628. 'I
l2
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example, in Competence of the ILO to Regulate, Incidentally, the Personal Workof the Employer the PCIJ was willing to hear baking industry experts selected by the International Federation of Trade Unions, although in the end the Federation did not present them.19 In gum, there are clear provisions enabling intergovernmental organizations to participate as amici curiae in contentious ICJ cases. Neither the Court nor intergovernmental organizations have availed themselves of these provisions as much as might have been expected. Consequently,there is little pressure to expand the circumstances in which 10s can participate in contentious case before the Court.
NGOs The Court has never permitted NGOs to make formal submissions as amici curiae in contentious cases. In 1950, in the Asylum case the International League for the Rights of Man requested leave from the Court to present information relevant to the case pur. ~ ~request was made to present information suant to Article 34 of the ICJ S t a t ~ t e(No pursuant to Article 50 of the ICJ Statute.) The Court refused the request. The Registrar advised the League that the Court found Article 34 inapplicable because the League could not be characterized as a "public international organization as envisaged by the Statute". It appears, however, that on at least one occasion, in the GabEikovo-Nagymarosproceedings, the ICJ informally accepted submissions from an NG0.21 Some scholars have suggested that Article 34(2) of the ICJ Statute could be reinterpreted to include NGOs by reading "public international organizations" as encomThis reinterpretation is unlikely passing "international public interest ~rganizations".~~ to gain favour among States or with the Court. Discussions leading to adoption in 1997 of the equivalent article of the Rules of the International Tribunal for the Law of the Sea suggest that States consider that the scope of the term "public international organizations" is restricted to intergovernmental organization^.^^ Further, as a NAFTA tribunal in Methanex COT. v. United States commented in 2001: "[The ICJ's] jurisdiction in contentious cases is limited solely to disputes between States; its Statute provides for intervention by States; and it would be difficult in these circumstancesto infer from its procedural powers a power to allow a non-State third person to i n t e r ~ e n e . " ~ ~ 1926 PCIJ, Set. B, No. 13 (23 July 1926). Asylum case, (Colombia v. Peru), ICJ Pleadings 1950, Vol. 11, pp. 227-228. For more discussion of the nature of the League, see the text accompanyingnotes 51 to 54. 2 1 See Methanex Corp. v. Unitedstates, Decision on Petitions from Third Persons to Intervene as 'Amici Cunae ', 15 January 200 1, $34 (NAFTAtribunal). '2 Shelton, cited at note 2, 625. See also Ascensio, "L'amrcus curiae devant les juridictions internationales", Revueginirale de droit internationalpublic, Vol. 105,2001, pp. 897-929, at p. 907. 23 See further text accompanying notes 93 to 95, below. 24 Methanex, cited note 21, 534. See also the comments of another NAFTA Tribunal in UPS (United Parcel Service of America Inc.) v. Government of Canada, Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae, 17 October 2001,564: "It is true that in contentious cases in the International Court of Justice only States and in certain circumstancespublic international organisations may havc acccss to thc Court (thc l a t h only to providc information rclcvant to cascs bcforc it.) But l9
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Article 34 is unlikely to be a means for NGOs to have access to the 1CJ in contentious cases. In the future NGOs are more likely to succeed in gaining access to the Court either by having a party to the case adopt their submissions as its own, as in WTO and NAFTAproceeding~,~~ or by using Article 50 of the ICJ Statute. But first they will have to convince the Court and its main clientele - States - that their contributions will not be a mere nuisance but will add value.
Individuals Where States exercise diplomatic protection to bring claims on behalf of their nationals, the resulting State claims will necessarily affect the interests of these nationals. For example, the quantum of damages is usually assessed by reference to the individual national. But the nationals have no right to be heard, as such, in contentious case before the ICJ. (Article 34 of the ICJ Statute was specifically drafted to exclude individuals from appearing before the ICJ.)26Only national States have that right and they may choose what to claim and how to present the claim. This process accords with the classic concept of diplomatic protection as a discretionary power of a State to make an international claim on behalf of its injured national on the basis that an injury to its national is an injury to it.27But there are some unsatisfactory practical aspects. For example, to use Rosenne's illustration, in Nottebohrn it was essential for the ICJ to consider Mr. Nottebohm's actions and motives when he applied for Lichtenstein nationality. Yet he was unable to present his views directly to the Court.28Brownlie's view is relevant here: "Even if the individual is not to be given procedural capacity, a tribunal interested in doing justice effectively must have proper access to the views of individuals whose interests are directly affected whether or not they are parties as a matter of p r o c e d ~ r e . " ~ ~ The Court has power to hear submissions from individuals, but in their limited capacity of witnesses and experts.30The Court's scant practice does not indicate a that limit appears to result directly from the wording ofArticles 34,35 and 6 1 4 4 of the Statute of the Court which carefully regulate those matters as well as from the practice under them extending over several decades." 25 See further text accompanying notes 219,224 and 281 of this paper. Ascensio suggests this possibility: see Ascencio, cited at note 22, p. 907. 26 Judge Hersch Lauterpacht explained: "When the Committee of Jurists, which in 1920 drafted the Statute of the [PCIJ], adopted the present Article 34, one of the principal reasons which prompted its decision was the view that individuals are not subjects of international law and thereforethey can have no locrrs standi before international tribunals.": see Lauterpacht, H., "The Revision ofthe Statuteof the International Court of Justice: With an Introduction by Sir Elihu Lauterpacht", The Law and Practice of International Courts and Tribunals,Vol. 1,2002, pp. 55-128, at p. 109. Chinkin explains that "there was concern that the minorities accorded treaty protection after the First World War would claim to right of access to the Court.": see Chinkin, cited at note 6, p. 230, note 25. See also Brownlie, "The individual before tribunals exercising internationaljurisdiction", International and Comparative Law Quarterly, Vol. 11, 1962, pp. 701-720, at p. 708. 27 Mavrommatis Palestine Concessions Case (Jurisdiction) PCIJ, Ser. A, No. 2 (1924). 28 Rosenne, cited at note 7, pp. 241-242. Rosenne notes that in the event this procedure did not result in a practical injusticeto the individual because his actions and motives were accurately evalued by the Court. 29 Brownlie, cited note 26, p. 71 9. 'O As to the power to appoint experts, see ICJ Statute, Art. 50; and ICJ Rules, Art. 67, set out at note 17. As to witnesses, see Arts. 62 and 63 of the ICJ Rules.
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desire on its part expansively to interpret the scope of an individual's capacity under these rules to include that of amicus curiae. In 1967 Rosenne expressed the view that "in the interests of the proper administration of international justice", the 1CJ ought to take advantage of its existing powers to
permit an individual directly concerned to give to the Court his or her own version of the facts and construction ofthe law. He suggested that this was not incompatible with Article 34 of the ICJ Statute; that the Court had powers to prevent any possible abuse of process; and that such a possibility would increase the Court's general standing and prestige.31The Court was not persuaded then. And almost 40 years later it remains unpersuaded. 1.2 Advisory proceedings Article 66 of the ICJ Statute sets out which entities may participate in advisory proceedings and how: 1. The Registrar shall forthwith give notice of the request for an advisory opinion to all States entitled to appear before the Court. 2. The Registrar shall also, by means of a special and direct communication, notify any State entitled to appear before the Court or international organization considered by the Court, or, should it not be sitting, by the President, as likely to be able to furnish information on the question, that the Court will be prepared to receive, within a time-limit to be fixed by the Prcsident, written statements, or to hear, at a public sitting to be held for the purpose, oral statemcnts relating to the question. 3. Should any such State entitled to appear before the Court have failed to receive the special communication referred to in paragraph 2 of this Article, such State may express a desire to submit a written statement or to be heard; and the Court will decide. 4. Statcs and organizations having prcscntcd writtcn or oral statcmcnts or both shall bc pcrmittcd to comment on the statements made by other States or organizations in the form, to the extent, and within the time-limits which the Court, or, should it not be sitting, the President, shall decide in each particular case. Accordingly, the Registrar shall in due time communicate any such written statements to states and organizations having submitted similar statements.
Apart from a few provisions specific to advisory provisions, the ICJ is in general guided by the procedure applicable to contentious cases.32 states Under Article 66 of the ICJ Statute, all States entitled to appear before the Court receive notice of an advisory opinion. The Court may invite certain States that it considers "likely to be able to furnish information on the [relevant] question" to participate in the written or oral phase of proceedings. If a State is not invited initially to furnish information on the relevant question, there is explicit provision for it to request the Court to do so and the Court has discretion to permit participation. States making submissions
Rosenne, cited at note 7, p. 250. ICJ Statute, Art. 68: "In the exercise of its advisory functions the Court shall further be guided by the provisions ofthe present Statute which apply in contentious cases to the extent to which it recognizes them to bc applicablc." 32
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have a right to receive and comment upon the submissions of other States and international organizations. The role of States in advisory proceedings has been uncontroversial. But very recently the ICJ appeared to interpret loosely the term "State" for the purposes of advisory proceedings. Article 66 only refers to two types of legal entities that may participate in advisory proceedings: "States" and "international organizations". So what was the legal basis for the Court to request Palestine to make submissions in advisory proceedings in Palestinian Wall?33Since 15 December 1988 "Palestine" has been used in the United Nations system to refer to the Palestine Liberation Organization (PL0).34Palestine is not (yet) a State, is not a member of the United Nations, and is not an intergovernmental organization. But it addressed the Court before any member State or 10. The General The practical reason for invitAssembly had not requested Palestine's participati~n.~~ ing Palestine to address the Court was evident but the legal basis for doing so was not made explicit. The Court stated: in the light of Resolution ES-10114 and the report of the Secretary-General transmitted with the request, and taking into account the fact that the General Assembly had granted Palestine a special status of observer and that the latter was co-sponsor of the draft resolution requesting the advisory opinion, Palestine might also submit a written statement on the question within the above time-li~nit.~~
The Court's attitude to Palestine in Palestinian Wall contrasts with the 1988 advisory proceedings in Applicability of the Obligation to Arbitrate under S. 21 of the United Nations Headquarters Agreement of 26 June 1947.37In that case, as Chinkin notes, even though the PLO's Mission to the UN in New York was directly affected, the PLO was neither requested to supply information to the Court nor did it apparently request to be permitted to do so.38This change in attitude may well mostly reflect the development since April 1988 in the international status of Palestine and the PLO. But, considering that the legal basis for requesting Palestine to participate in proceedings is not at all clear, it is suggested that its participation in Palestinian Wall indicates that the Court is more willing to open itself to participation in advisory proceedings by quasiState entities where such involvement is essential to the administration of justice. Contrast the Court's refusal of the application to participate in Namibia in 1971 by four 'I Legal Consequences of the Construction of a Wall in the Occupied Palestinian Tem'toly, Advisory Opinion of 9 July 2004. 34 See UNGAResolution431177,UN Doc. No. AAESl43/177,15 December 1988, §3. The Palestinian Authority, by contrast is the entity recognized under the Oslo Accords as having certain responsibilities in parts of the occupied Palestinian territory: see, generally, Takkenberg, The Status of Palestinian Refugees in International Law, Oxford, Oxford University Press, 1998. Compare UNGA Resolution ES-10114, 8 December 2003, set out at $1 of the Court's reasons for judgment. l6 Palestinian Wall, cited at note 33, $4. l7 Applicability of the Obligation to Arbitrate under S. 21 o f the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion of 26 April 1988, ICJ Reports 1988, p. 12. l8 Chinkin, cited at note 6, p. 232, note 34. For discussion of this advisory opinion and corresponding domestic proceedings in the US, see Stem, "L'affaire de 1'OLP devant la juridiction internationale et interne", Annuairefran~aisde droit international,Vol. 34, 1988, pp. 165- 194.
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"indigenous inhabitants of the international Territory of South West Africa (Namibia) . . . on behalf of the indigenous people of South West Africa (Namibia)". In their letter to the Registrar these individuals had stated that "It is imperative that we as a Namibia Nation, that is, a political and judicial entity and Wards of the United
Nations be heard by the International Court of Justice. By its technical judgment of 18 July 1966, the Court in effect conferred a 'special legal interest' upon the people of South West Africa (Namibia)."39 The Court's approach in Palestinian Wall might also indicate a softer attitude generally to the participation of non-State entities in advisory proceedings.
International organizations International organizations can participate in advisory proceedings in two ways: either as a requesting body under Article 65 of the ICJ Statute or as bodies considered likely to furnish relevant information under Article 66. Under Article 65 of the ICJ Statute, 10s play an integral role in the advisory proceedings. Bodies authorized by or in accordance with the UN Charter may request an advisory opinion.40The written request must contain an exact statement of the question and be "accompanied by all documents likely to throw light upon the question". Pursuant to this power, where requests are made by a UN organ, the UN SecretaryGeneral will ordinarily submit a written statement with a dossier of documents.41 Article 65(2) does not limit the source of the documents accompanying the request for an advisory opinion. Article 65 does not expressly permit a written statement accompanying a request to be supplemented orally by the requesting body's chief administrative officer or other representative or, in the case of a UN organ, by the UN Secretary-General. But in practice the Court has allowed such oral participation. It has not expressly stated the basis for doing so, although the Court's general power to "make orders for the conduct of the case" is probably ~ufficient.~~ For example, when WHO requested an advisory opinion in the Interpretation of the Agreement of 25 March 1951 between WHO and Egvpt," it sent its Legal Adviser to answer the Court's questions. In two advisory opinions requested by the General Assembly concerning the UN's privileges and immunities, M a z i l ~and ~ ~C ~ r n a r a s w a m ythe , ~ ~UN Secretary-General made written
'9 Legal Consequencesfor States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstunding Security Council Resolution 276 (1970), ICJ Pleadings 1971, Vol. 11, p. 677. Advisory opinions may be requested, inter alia, by the General Assembly, the Security Council, ECOSOC, the IAEA and all specialiscd agencies, except the Universal Postal Union. As requested by the General Assembly, the Secretary-General submitted such a report in the advisory procccdings in Palestinian Wall: scc 5 I . 42 See ICJ Statute, Art. 48. Some scholars have suggested that the basis of such a power is Art. 66(2). See for example, Chinkin & Mackenne, cited at note 8, p. 145. 43 Interpretation of the Agreement of 25 March 1951 between WHO and Egypt, Advisory Opinion of 20 December 1980, ICJ Reports 1980, p. 73. 44 Applicability ofArticle VI. Section 22 of the Convention on Privileges and Immunities of the United Nations, Advisory Opinion of 15 December 1989, ICJ Reports 1989, p. 177; ICJ Pleadings, pp. 173,234. 4J Difference Relating To Immunity From Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion of 29 April 1999, ICJ Rcports 1999, p. 62.
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submissions. In Cumaraswamy the Court requested the UN Secretary-Generalto give a written statement in light of his pivotal role and primary responsibility as the chief administrative officer of the Organi~ation.~~ The Secretary-General's representative also attended the hearing and answered the Court's question^.^' Article 66(2) of the ICJ Statute clearly enables the ICJ to invite written and oral submissions of "international organizations" as amici curiae. ICJ practice indicates that international organizations may also request the Court to be allowed to participate in advisory proceedings. Most recently, in Palestinian Wall,the Court accepted requests to intervene from the only two intergovernmental organizations that sought to do so: the League of Arab States and the Organization of the Islamic Conference. This practice has been uncontroversial, even though Article 66 only expressly permits States and not 10s to make such requests.48 Over the life of the Court intergovernmentalorganizations have made moderate use ofArticle 66 to participate in advisory proceedings to various extents. The level of participation in this way has not been of much apparent concern to States or to scholars.49 The term "international organization" in Article 66 certainly includes intergovernmental organizations and probably includes the International Labour Organization, which is not a purely intergovernmental organization in the sense that it is a tripartite body of which States and employer and employee organizations are members. For example, in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, an advisory opinion requested by the General Assembly, the ILO made written submission^.^^ Debate about the possible and desirable scope of the term "international organization" has taken place mainly in the context of NGOs' participation in ICJ advisory proceedings, to which we now turn.
NGOs Initially ICJ practice interpreted "international organization" in Article 66(2) of the ICJ Statute as encompassing NGOs. In 1950 the International League for the Rights of Man sought to hrnish the Court with information pursuant to Article 66(2) in relation to its advisory proceedings in International Status of South- W e ~ t A f i i c aThe . ~ ~League noted that it was a long-standing international human rights organization with ECOSOC consultative status. The League also indicated that it had been actively interested in the matter for some time including participation in the General Assembly's Fourth Committee. Indicating that it had extensive and relevant information and data and
Compare ibid., $50. Ibid., 99. See ICJ Statute,Art. 66(3). Contrast the controversy about NGO requests to participate in WTO Panel proceedings. The difference in approach is partly explained by the difference in the terms of the relevant provisions and that NGOs, and not intergovernmental organizations, requested participation in WTO proceedings. See M e r Part 11, Chapter 5 of this paper. 49 Compare Chinkin and Mackenzie, cited at note 8, pp. 143-145. 'O Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of28 May 1951, ICJReports 1951, p. 15. 5 1 IntemationalStatus ofSouth- WestAJnca, Advisory Opinion of 1 l July 1950, ICJ Reports 1950, p. 128; ICJ Pleadings,p. 324. 46
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that it had extensively researched the legal issues, the League submitted that "it would further the purposes of the Court and the extensions and preservation of human rights if the Court authorized it to hmish a written or oral statement." The Court informed the League that it was prepared to receive within 25 days a written statement confined
to legal questions and not including facts not before the Court.52 The League submitted its formal statement about one month late and was not, therefore, included in the proceeding^.^^ The Court specifically refused the League's request to participate in the oral proceeding^.^^ As the League's statement noted, Article 66 of the ICJ Statute is based on a provision of the PCIJ Statute, which also permitted "international organizations" to participate in advisory proceedings. And PCIJ practice in relation to that provision indicated that the scope of the term extended to private international organization^.^^ Notwithstanding that practice, in 1971, without giving any reason, the Court refused the League's request to be allowed to fiunish a written statement (which accompanied the request) and to make an oral statement at the hearings6The Court also rejected the application to furnish a statement made by another NGO affiliated with the League, the American Committee on Afr-i~a.~' In the absence of reasons for refusal of the League's request, it is difficult to determine why the Court acted as it did. Was it because it considered that the organizations were not "likely to be able to fiunish information on the question"? Was the Court concerned about the opening the floodgate^?^^ Or, more fundamentally, did the Court consider that the expression "international organization" should be restricted to "public international organization" within the meaning of Article 34 of the ICJ Statute rather than to cover "international organizations" within the meaning of Article 71 of the UN Charter?59The Registrar's response to the
International Status ofSouth- WestAfrica, cited at note 51, ICJ Pleadings, p. 327. International Status ofSouth- WestAjrica, cited at note 51, ICJ Pleadings, p. 346. There were in fact some statements filed prior to the deadline, but because they were not sent from the League's headquarters, which had requested leave to file the statement, they were rejected: Clark, "The International League for Human Rights and South West Africa 194771957: The Human RightsNGO as Catalyst in the International Legal Process", Human Rights Quarterly, Vol. 3 , 1981, pp. 101L136, at pp. 117 119. '4 International Status of South- West Africa, cited at note 5 1, ICJ Pleadings, pp. 343-344,346. '' Clark summarizes the submission as follows: "When first called upon to render an advisory proceeding in 1922, in a case involving the construction of a provision in the Treaty of Versailles concerning workers' delegates to the International Labor Conference, [the PCIJI had decided to permit participation by any official organization which expressed the desire to be heard. This principle had been applied in later cases.": see Clark, cited at note 53, pp. 12&121. As to relevant PCIJ practice, see further Shelton, cited at note 2, pp. 621423; and Chinkin, cited at notc 6, pp. 229-230. s6 The Registrar stated simply that the Court had carefully considered the League's application and dccidcd "that it should not bc acccdcd to." Scc Namibia, citcd at notc 39, ICJ Plcadings, Vol. 11, pp. 639-640, 672,678-679. " Namibia, cited at note 39, ICJ Pleadings, Vol. 11, pp. 6 4 3 , 6 3 9 4 0 . Compare the response to Professor Reisman's request to submit an amicus brief, referred to in the text accompanying note 76. 59 UN Charter, Art. 71 provides: "The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations aftcr consultation with the Member of thc Unitcd Nations conccrncd." 52
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American Committee on Africa - that it was not an international organization60- indicates that the Court probably reconsidered its view that the League was an international organization but was embarrassed to say so explicitly in writing. Whatever the reason, the Court's position subsequently became clearer. The ICJ Rules relating to advisory proceedings, as adopted in 1978, refer to "public intemational organization" rather than mirroring the broader language of Article 66.61 Notwithstanding this considerable setback, in 1996 in the Nuclear Weapons advisory proceeding~,6~ the Court was flooded with uninvited NGO submissions. The ASAscensio notes, the fact that the gatecrasherswere received informally but briefs were received at all indicates a softening of its previous position.64The request for an advisory opinion had been made by the General Assembly. It followed a particularly successful mobilization by NGOs under the banner of the World Court Project. Part of their strategy was to push for an opinion from the ICJ on the legality of the threat or use of nuclear weapons. Judge Guillaume was particularly critical of the NGOs' involvement: La Cour aurait pu songer dans ces conditions a nc pas donner suite B la demande d'avis dont cllc etait saisie. Cctte solution aurait trouvC quelque justification dans les circonstanccsmBmes de la saisine. En effet, l'avis sollicit6 par L'Asscmbl6c generalc dcs Nations Unies ( c o m e d'aillcurs celui demand6 par I'AssemblCe mondialc dc la Sante) a trouve son originc dans I'action menkc par une Association denommec "InternationalAssociation ofLawyers against Nuclear Arms'' (IALANA) qui, de concert avec divers autres groupemcnts, a lance en 1992 un projet intitule "World Court Project' afin de faire proclamer par lacour l'illidit6 de la menace ou de I'emploi des armes nuckaires. Ces associations ont fait preuve d'une jntcnsc activiti. cn vuc dc fairc votcr Ics rCsolutions saisissant la Cour ct dc provoqucr l'intcrvcntion dcvant cette dcrniere d'Etats hostiles aux armcs nucl8aires.Bicn plus, la Cour et lcs juges ont r e p des milliers de lcttres inspirees par ccs groupcments ct faisant appel tant a leur conscience qu'8 la conscience publique. Jc suis certain quc les pressions ainsi exercees ont etb sans influence sur lcs d6liberations de la Cour, mais je me suis interroge sur la question dc savoir si, dans ces conditions, on pouvait encore regarder les dcmandes d'avis c o m e Bmanant des Assemblecs qui les avaient adoptecs, ou si, appliquant la theorie dc l'apparence, la Cour ne dcvait pas les ecartcr comme irrccevables. J'ose cependant esptrer que les gouvernements et les institutions intergouvernementales conservent encore une autonomic dc decision suffisante par rapport aux puissants groupes depression qui les investissent aujourd'hui avcc le concours des moyens dc communication de massc. Jc constate en outre qu'aucun des Etats qui s'est present8 devant la Courn'a souleve une telle exception. Dans ces conditions,je n'ai pas cru devoir la retenir d ' o f f i ~ e . ~ ~
More recently the Court has implicitly indicated that, in the context of advisory proceedings, the terms "intemational organization" and "intergovernmental organization"
" Namibia, cited at note 39, ICJ Pleadings, p. 647. See also the Committee's further submissions following the Court's refusal of its request (at p. 649) which did not change the Court's mind and did not elicit further reasons (see pp. 652,672). See ICJ Rules, Arts. 108 and 109. 62 Legality of the Threat or Use ofluclear Weapons,Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 66. 63 Referring to a letter from the ICJ Registrar published in a newspaper, Ascensio states that the NGO briefs were made available informally to the judges, but the Court did not refer to any its judgment. See Ascencio, cited at note 22, p. 906. Ibid. Legality of the Threat or Use ofNuclear Weapons,cited note 62, Sep. Op. of Judge Guillaume, 82.
"
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are co-extensive. Practice Direction XII, issued on 30 July 2004, suggests that the terms are co-extensive when it refers to "All States as well as intergovernmental organizations presenting written or oral statements under Article 66 of the Statute". But ironically, despite this narrow interpretation ofArticle 66, this Practice Direction indicates
that in 2004 the Court seemed more receptive to NGO briefs than at any other time since 1950. P r a c t i c e Direction X11, which "involve[s] no alteration to the Rules of Court, but [is] additional theret0",6~provides:
1. Where an international non-governmental organization submits a written statement and/or document in an advisory opinion case on its own initiative, such statement andlor document is not to be considered as part of the case file. 2. Such statements and/or documents shall be treated as publications readily available and may accordingly be referred to by States and intergovernmental organizations presenting written and oral statements m the case m the same manner as publications in the public domain. 3. Written statements and/or documents submitted by international non-governmental organizations will be placed in a designated location in the Peace Palace. All States as well as intergovernmental organizations presenting written or oral statements underArticle66 of the Statute will be informed as to the location where statements and/or documents submitted by international non-governmental organizations may be consulted.
The Practice Direction does not dissuade uninvited NGO briefs. It formalizes the Court's relationship with NGOs. And it recognizes that NGOs have an interest in the Court's advisory proceedings. This attitude contrasts markedly with Judge Guillaume's comments in Nuclear Weapons. Secondly, indirectly, the Practice Direction gives the Court discretion to refer to uninvited NGO briefs presented to it. Paragraph 2 states that the documents shall be "treated as publications readily available and may accordingly be referred to . . . in the same manner as publications in the public domain". If legal arguments or factual material are thus "in the public domain", whether or not the parties refer to them, the Court could consider them consistent with its approach to information and evidence stated in N i ~ a r a g u aIt. ~will ~ be recalled that the ICJ recognized there that information could come to it "in ways and by means not contemplated by the Rules", that the Court "is not solely dependent on the argument of the parties before it with respect to the law", and that, as to disputed facts, "in principle the Court is not bound to confine its consideration to the material formally submitted to it by the parties."68 The Court's judgments are not known for their comprehensive references to the sources relied upon for its legal conclusions, nor has Court cited any authors, ever.69So, the Court could See ICJ Press Release 2004130. Militaly and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unitcd Statcs), Mcrits, Judgment of 27 June 1986, ICJ Reports 1986, p. 14. '"bid., at p. 25, $3 1; at p. 25, $29; and at p. 25, $30. As to the broad powers of international tribunals in regard to admissibility and weight of evidence, see C.F. Amerasinghe, "Principles of Evidence in International Law", Institute ofIntemationa1 Law, Yearbook, Vol. 70, Part I, 2002-2003, Prepamtory Work, pp. 139-397, at pp. 248-269. 69 For example, in Palestinian Wall, cited at note 33, in her Separate Opinion, Judge Higgins noted that for the first time the Court had adopted the post-colonial view of the right to self determination, but did so without any rcfcrcncc to thc vast litcraturc on thc subjcct: scc 530. 66
67
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consider NGO amicus briefs without explicitly stating that it has done so. Whether it will in fact do so probably depends on whether NGOs can convince the Court that their contribution is worth taking the time to review even if states or international organizations do not refer to their briefs in the course of the advisory proceedings. The commitment to "place" the NGO submissions in a designated location in the Peace Palace implies that the Court will expend resources organizing and indexing those briefs. Since the Court is not well resourced, and the number of submissions could be immense (as in Nuclear Weapons),it appears that the Court is taking seriously its new openness to NGO briefs. Of course if parties do refer to NGO submissions, the Court will probably be obliged to consider those submissions in the same way as it must consider the other parts of the parties' submissions. Individuals The ICJ has never permitted individuals to appear as amici curiae in advisory proceedings, even where a person's interests would be directly affected by the outcome. In the Namibia advisory proceedings an American intemational law professor sought to submit an amicus brief to the Court, noting the "faint precedent" of the Court's agreement to such a request by the League in 1950, and referring to its use in common-law countries.70In response to the question whether the Court would accept and consider a brief from an individual or a group, the Registrar said the Court would not7' The Registrar distinguished the precedent relating to the League's request on the basis that individuals did not fall within the term "international organization" in Article 66(2) of the ICJ Statute, which was limitative, and that in the same proceedings the Court had not acceded to individuals' requests to submit written or oral statement^.^^ The Registrar also referred to the Court's refusal of a similar request in the Effects of Awards of Compensation made by the United Nations Administrative Tribunal advisory proceedings. In that case the Court refused a request to accept written and oral submissions made by counsel who had represented UN staff members in UNAT proceedings that had resulted in awards subject of the General Assembly's request for an advisory opinion.73The Registrar also considered that the exclusion of individuals fiom the scope of Article 66(2) was confirmed by the procedure agreed to by the Court in proceedings on UNESCO's request for an advisory opinion about decisions of the ILO
Letter from Professor Reisman to the Registrar, 10 September 1970, ICJ Pleadings 1971, Vol. 11, pp. 636637. 7' The Court also refused other individuals' requests to participate as amici curiae, including: Rev. Michael Scott, who had been intimately involved in the League's attempted participation in the South West Afica proceedings in 1950; and four "indigenous inhabitants of the intemational Territory of South West Africa (Namibia) on behalf of the indigenous people of South West Africa". See ICJ Pleadings 1971, Vol. 11, pp. 644--645,647,67&678. 72 Letter from the Registrar to Professor Reisman, 6 November 1970, ibid., pp. 638439, refemng to International Status of South West Africa, ICJ Pleadings 1950, at pp. 328-329,34&432. 73 Ibid., refemng to Effects of Awards of Compensation made by the United Nations Administrative Tribunal,ICJ Pleadings, pp. 394395.
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Administrative T r i b ~ n a l In . ~ that ~ case the staff members' Counsel's observations were transmitted by the organization that disputed the decision's validity. In this way, the interested individual was accorded some measure of due process. Because this type of advisory proceedings arises out of contentious proceedings, the Court has been concerned about equality between the parties. To promote actual equality of the parties to the contentious proceedings, the Court has dispensed with oral proceedings in which only the organization whose decision was disputed could have parti~ipated.~~ In Namibia, the Registrar also considered that the Court "would be unwilling to open the floodgates to what might be a vast amount of proffered assistance . . . whatever justification for describing the volunteer as an amicus curiae may exist."76At the time the Court was hardly submerged with cases, and its prospects looked grim after its notorious decision in the South WestAfvica cases7' In any event the "floodgates" argument is one that can be addressed not only through preventing the flood, but also by managing it.78 The Court could proprio motu call an individual as witness or expert, but "it has never deemed it necessary to use its powers to ascertain more about an individual's position or interests than the relevant government has wished to raise."79 1.3 Concluding remarks The ICJ has been reasonably open to amicus participation by its main clientele: States (in advisory proceedings) and intergovernmental organizations (advisory proceedings and some contentious cases). But intergovernmental organizations in particular have not availed themselves fully of opportunities to participate. Even though the Court arguably has power to permit NGOs and individuals to participate in some capacity in advisory and contentious proceedings, it has not done so formally. It has recently, however, indicated a greater willingness to facilitate some form of access by NGOs to the Peace Palace, if not directly to the Court or into its judges' chambers. The Court has not found it necessary to discuss the juridical nature of the amicus much beyond references to its Statute and Rules. Exceptionally, in Malta, the Court suggested that an amicus curiae would present its view "objectively" rather than "as a closely interested participant in the proceedings intent upon seeing those issues resolved in the manner most favourable to [it]".80 74 Judgments ofthe Adminislrative Tribunal ofILO upon Complaints made against UNESCO, Advisory Opinion of 23 October 1956, ICJ Reports 1956, p. 77, at p. 80. 75 See, for example, Application for Review of Judgment No. 273 of United Nations Administrative Tribunal,Advisory Opinion of 20 July 1982, ICJ Reports 1982,p. 352, at p. 339, discussed in Chinkin, cited at note 6, p. 235. 76 Citcd at notc 39, ICJ Pleadings 1971, Vol. 11, p. 639. 77 South West Afn'ca (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962, ICJ Reports 1962,p. 3 19; Second Phase, Judgment of 18 July 1966, ICJ Reports 1966, p. 6. 78 Compare the practice of the European Court of Human Rights, discussed in Part I1 Chapter 3 of this paper. 79 Chinkin, cited at note 6, p. 236. 80 Case concerning the Continental SheEf(Tunisiav. Libyan Arab Jamahiriya), Application by Malta for Permission to Intcrvcnc, Judgmcnt of 14 April 1981, ICJ Rcports 1981, p. 3, at p. 18.
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2. International Tribunal for the Law of the Sea The International Tribunal for the Law of the Sea (ITLOS) was established in accordance with Annex VI of the UN Convention on the Law of the Sea 1982 (UNCLOS) and commenced operations in 1996. It is an independentjudicial body established by UNCLOS to adjudicate disputes arising out of the interpretation and application of UNCLOS and is one of four alternative mechanisms available under the UNCLOS compulsory dispute settlement system. ITLOS consists of the Tribunal and the Sea-Bed Disputes Chamber. Its jurisdiction comprises all disputes submitted to it in accordance with UNCLOS and extends to all matters specificallyprovided for in any other agreement that confers jurisdiction on it. Unless the parties agree otherwise, the Tribunal's jurisdiction is mandatory in cases relating to the prompt release of vessels and crews and to provisional measures pending the constitution of an arbitral tribunal. The Seabed Disputes Chamber is competent to give advisory opinions on legal questions arising, amongst other things, within the scope of the activities of the International Seabed Authority. The Tribunal may also give advisory opinions in certain cases, for instance, under international agreements related to the purposes of the Conventi~n.~' The ITLOS Statute, together with the Rules of the Tribunal passed pursuant to the Statute, govern the procedure of both the Tribunal and the Chamber, which is composed of ITLOS members and has procedures similar to those of the Tribunal.82The Tribunal is responsible, under Article 16 of the ITLOS Statute, to "frame rules for carrying out its functions" and, in particular, to "lay down rules of procedure." The ITLOS Rules were discussed fiom about 1984 onward in a Special Commission of the ITLOS Preparatory Commission. ITLOS procedures for intervention by third parties and amicus curiae participation are modelled closely on those of the ICJ, discussed above. But there are differences. And those differences, and the discussions that led to them, are illuminating. ITLOS has not had any amicus curiae participation in its proceedings as at the time of writing. So this chapter concentrates on analysing the procedures for third party access to the Tribunal, comparing this access regime to that of the ICJ, and discussing the drafting history that led to whatever differences there are. It then examines whether ITLOS' rules might enable it to permit participation in its proceedings by a wider range of amici curiae, such as NGOs or individuals.
This overview of the structure of ITLOS is based on "General Information Overview" available on the ITLOS official web site: hnp:lIwww.itlos.0rglstart2~en.hhnl. 82 Statute ofthe International Tribunal for the Law of the Sea, Annex VI to the United Nations Convention on the Law of the Sea, 10 December 1982, UN Doc. AICONF. 621122, Art. 16 ("ITLOS Statute"); ITLOS, Rules of the Tribunal. ITLOS18. adooted on 28 October 1997. as amended to 21 Seotember 2001 PITLOS Rules"). Art. 40 (Applicability of other sections of this Annex) provides: "1. The other sections of this Annex which are not incompatible with this section a.~-p.l yto the Chamber. 2. In the exercise of its functions relating to advisory opinions, the Chamber shall be guided by the provisions of this Annex relating to procedure before the Tribunal to the extent to which it recognizes them to be applicable." -
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General
Before considering the provisions for amicus participation in ITLOS proceedings, we must consider the context of such participation. As to "access" to the Tribunal, the ITLOS Statute provides that the Tribunal shall be open to "States Parties" and other entities "in any case expressly provided for in Part XI or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all to the Seabed Disputes Chamber is broader than that the parties to that ~ase."*~Access of the Tribunal, as that Chamber is "open to the States Parties, the Authority and the other entities referred to in Part XI, section 5."84For example, juridical persons such as international consortia and multinational corporations and natural persons can therefore be parties to disputes before the Seabed Disputes Chamber. The term "States Parties" is not limited to States that have ratified UNCLOS. Under Article l(2) of UNCLOS that term also includes international organizations, and for disputes before the Seabed Disputes Chamber, entities that are provisional members of the Seabed A~thority.~~ From the outset, the Tribunal was conceived as being a body oriented towards States. Discussions about access by entities other than States under the prospective Rules never contemplated access by NGOs or individuals to Tribunal proceedings. In the course of the discussions in the Preparatory Commission, the access regime under the ITLOS Statute was summarized as follows: In thc casc of thc Tribunal only Statcs Partics havc thc right of acccss in mattcrs rclating to application and interpretation of [UNCLOS]. This would include international organizations referred to in Annex IX in cases within their spheres of competence. In enjoying that right, intergovcmmcntal organizations do so on behalf of and in the place of their Member States. Other entities only have the right of access to the Sea-Bed Disputes Chamber. Their access is limited to certain kinds of dispute.x6
States Parties may intervene in ITLOS proceedings in circumstances similar to those defined by the ICJ Statute. If a State Party considers that it has an "interest of a legal nature which may be affected by the decision in any dispute", it may seek the Tribunal's leave to do so. If leave is granted to intervene in contentious proceedings, the Tribunal's decision binds the inter~enor.~' Parties to agreements the interpretation or application of wnich is in question have a right to intervene and, if they do so, the ITLOS Statute, Art. 20. ITLOS Statute, Art. 37. "States Parties" has the meaning set out in Art. 1, paragraph 2, of the Convention and includes, for the purposes of Part XI of the Convention, States and entities which are members of the Authority on a provisional basis in accordance with scction 1, paragraph 12, of thc Anncx to thc Agrccmcnt rclating to thc implcmentation of Part XI. b6 Statement by the Chairman, Preparatory Commission for the International Sea-Bed Authonty and for the International Tribunal for the Law of the Sea, Special Commission 4, Second Session, Doc. No. LOSIPCNISCN.4/1984ICRP.4,4 April 1984, $3. This document and other Preparatory Commission documents referred to in this part are collected in Platzoder, (ed.), The Law of the Sea: Documents 1983-1989, New York, Oceana, 1990, Vol. VII. ITLOS Statute, Art. 3 1. The Tribunal decision is binding on the intervenor "in so far as it relates to mattcrs in rcspcct of which that Statc Party intcrvcncd." This provision is cquivalcnt to ICJ Statutc, Art. 62. R4
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Tribunal's interpretation is binding.88The ICJ Statute gives States similar rights of intervention, and with similar consequence^.^^ Articles 84 and 133 of the ITLOS Rules permit States and international organizations to participate as amici curiae in proceedings in the contentious jurisdiction of the Tribunal and the Seabed Disputes Chamber and the Seabed Disputes Chamber's advisory jurisdictions, respectively. These rules were modelled on Articles 34 and 66 of the ICJ Statute, discussed above.
2.2
Contentiousproceedings
Both the Tribunal and the Sea-Bed Disputes Chamber have contentious jurisdiction and, for the present purpose, the procedure is the same.90In contentious proceedings, the Tribunal may request or permit an intergovernmental organization to furnish information in written or oral form. The relevant rule, Article 84, provides in full: 1. The Tribunal may, at any time prior to thc closure of the oral proceedings, at the request of a party or proprio mofu, request an appropriate intergovernmental organization to furnish information relevant to a case before it. The Tribunal, after consulting the chief administrative officer of the organization concerned, shall decide whether such information shall be presented to it orally or in writing and fix the timelimits for its presentation. 2. When such an intergovernmental organization sees fit to furnish, on its own initiative, informationrelevant to a case before the Tribunal, it shall do so in the form ofa memorial to be filed in the Registry before the closure of the written proceedings. The Tribunal may require such information to be supplemented, either orally or in writing, in the form of answers to any questions which it may see fit to formulate, and also authorize the parties to comment, either orally or in writing, on the information thus furnished. 3. Whenever the constructionof the constituent instmment of such an intergovernmental organizationor of an intcmational convcntion adoptcd thcrcundcr is in qucstion in a casc bcforc thc Tribunal, thc Registrar shall, on the instructions of the Tribunal, or of the President if the Tribunal is not sitting, so notify the intergovernmental organization concerned and shall communicate to it copies of all the written proceedings. The Tribunal, or the President if the Tribunal is not sitting, may, as from the date on which the Registrarhas communicatedcopies of the written proceedings and after consulting the chief administrative officer of the intergovernmental organization concerned, fix a time-limit within which the organization may submit to the Tribunal its observations in writing. These observations shall be communicated to the parties and may be discussed by them and by the representativeof the said organizationduring the oral vroceedinrs. 4. In the foregoingparagraphs, "intergovernmental organization" means an intergovernmental organization other than any organizationwhich is a party or intervenes in the case c~ncerned.~'
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Article 84 is an elaboration and refinement of Article 34(2) and (3) of the ICJ Statute, as supplemented by Article 69 of the ICJ Rules. Under both Articles, ITLOS and the ICJ may request an international organization to fumish relevant information.An inter-
ITLOS Statute, Art. 32. See ICJ Statute, Arts. 6 2 and 63. ITLOS Rules, Art. 115 provides: "Proceedings in contentious cases before the Seabed Disputes Chamber and its ad hoc chambers shall, subject to the provisions of the Convention, the Statute and these Rules relating specifically to the Seabed Disputes Chamber and its ad hoc chambers, be governed by the Rules applicable in contentious cases before the Tribunal." 91 According to Art. 1 (d) of the ITLOS Rules, "international organization" has the meaning set out in UNCLOS, Annex IX, Art. I . 88
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national organization may, in turn, provide information relevant to a case. The international organization has a right to furnish information where the case concerns its constituent instrument. Article 84 is more detailed than Article 34 of the ICJ Statute primarily because it elaborates on the modalities for provision and further consideration of international organizations7 information. Article 84 was drafted based on the following principle stated in 1984 during Preparatory Commission proceedings: Where participation of intergovernmental organizations in proceedings of the Tribunal and its chambers is concerned, the Rules of Procedure of the Tribunal should provide such solutions as would ensure on the one hand, fair and equal treatment of all parties to a given dispute, and on the other hand, thc highest possiblc standard of cfficicncy and cffcctivcncss in thc procccdings.P2
The most striking difference between Article 84 of the ITLOS Rules and Article 34 of the ICJ Statute is the nature of the international organization that may submit information. As discussed above, the reference in Article 34(2) and (3) of the ICJ Statute to a "public international organization" could be interpreted as including international organizations of "mixed" membership and perhaps even international NGOs.9' There is no such possibility under Article 84 of the ITLOS Rules, which restricts access to the Tribunal to "intergovernmental organizations". An initial draft of the rule used the phrase "public international organization" but stated that the term "denotes an international organization of s t a t e ~ . "When ~ ~ this draft was discussed various alternative definitions were offered. The consensus was to use the term "international organizations", but defined as an "international organization constituted by States", with the exception of international organizationswhich were "States Parties" to UNCLOS (and could therefore be a party to, or intervene in, a case). No delegate suggested that the term should be broadened to include international N G O S . ~ ~ The drafting history of Article 84 of the ITLOS Rules indicates that, were States asked in the 1980s whether the term "public international organization" in Article 34(2) 92 Chairman's Summing up of the Discussions, Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea, Special Commission 4, Doc. No. LOSiPCNISCN.4lL.1, 10 July 1984, p. 5. These principles are consistent with the overall approach of the Preparatory Commission to preparation of the draft rules, which took into account "the available precedents, such as those of the International Court of Justice and the Court of Justice of the European Economic Community [and] any interpretations the Courts had given in the application of their Rules, as well as the need to ensure that the procedures should be expeditious, not unduly expensive to the parties and should encourage resort to the International Tribunal for the settlement of disputes.": Druji Rules of the E-ibunal (Prepared by the Secretariat): Explanatory Note, Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea, Special Commission 4, Doc. No. LOSIPCNISCN.4/WP.2,27 July 1984, $2. 93 Scc tcxt accompanying notcs 22 to 23. 94 Draji Rules of the Trzbunal (Prepared by the Secretariat): Explanatory Note, cited at note 92, draft Article 79. 95 Compare Preparatory Commission for the Intemational Sea-Bed Authority and for the International Tribunal for the Law of the Sea, Special Commission 4, Third session, Doc. No. LOSIPCNISCN.4IL.3, 3 April 1985, $58689; Doc. No. LOSIPCNISCN.4I1985ICRP.7,27 March 1985. The redrafted provision was included in the Secretariat's further revised draft of the Rules: Draft Rules of the Tribunal: Part I: Articles I to 93 (Prepared by the Secretariat): Explanatory Note, Preparatory Commission for the Intcrnational Sca-Bcd Authority and for thc Intcrnational Tribunal for thc Law of thc Sca, Spccial Commission 4, Doc. No. LOSIPCNISCN.41WP.27Rev.17Part1,30 June 1986.
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of the 1CJ Statute could be read as refemng to international NGOs, the answer would have been: "No". 2.3 Advisory proceedings In exercising its advisory jurisdiction, the Seabed Disputes Chamber may request information fiom appropriate intergovemmental organizations pursuant to Article 133 of the ITLOS Rules of Procedure: 1. The Registrar shall forthwith give notice of the request for an advisory opinion to all States Parties. 2. The Chamber, or its President if the Chamber is not sitting, shall identify the intergovernmental organizations which are likely to be able to furnish information on the question. The Registrar shall give notice of the request to such organizations. 3. States Parties and the organizationsreferred to in paragraph 2 shall be invited to present written statements on the question within a time-limit fixed by the Chamber or its President if the Chamber is not sitting. Such statements shall be communicated to States Parties and organizations which have made written statements.The Chamber, or its President if the Chamber is not sitting, may fix a furthertime-limit within which such States Parties and organizations may present written statements on the statements made. 4. The Chamber,or its President if the Chamber is not sitting, - shall decide whether oral proceedings shall be held and, if so, fix the date for the opening of such proceedings. States Parties and the organizations referred to in paragraph 2 shall be invited to make oral statements at the proceeding^.^^
Article 133 was consciously inspired by Article 66 of the ICJ Stat~te.9~ From the outset there was an important difference: all States Parties were to have a right to make submissions in advisory proceedings whereas under Article 66 of the ICJ Statute only States which were called upon as being "likely to be able to furnish information on the question" had the right to make submissions. Initially some delegations objected to this departure from the ICJ Statute, arguing that there would be "a danger that the urgency required for dealing with advisory opinions under UNCLOS could not be assured."98 Otherwise the initial draft broadly mirrored Article 66 of the ICJ Statute, for example, by permitting the invitation of an "international organization" to make submission^.^^ 96 This paper does not discuss the Tribunal's advisory jurisdiction for reasons of space and because it arises only in certain cases under internationalagreementsrelated to the purposes of UNCLOS. Chairman'sSumming up of the Discussions, Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea, Special Commission 4, Doc. No. LOSPCN/SCN.4/L.I, 10 July 1984, p. 6. Compare Chairmun 's Summaw ofDiscuvsions on the Druft Rules ofthe Znternutional Tribunalfor the Law of the Sea, Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea, Special Commission 4, Doc. No. LOSIPCNISCN.4IL.5,9 April 1986, draft Article 129. 99 Draft Rules of the Tribunal (Prepared by the Secretariat): ExplanatoryNote, Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea, Special Commission4, Doc. No. LOSPCNISCN.4IWP.2,27 July 1984, draft article 129. Draft Article 129(2)provided: "The Registrar shall also, by means of a special and direct communication, notify any international organizationconsidered by the Chamber or, should it not be sitting, by the President of the Chamber, as likely to be able to hrnish information on the question, that the Chamber will be prepared to receive, within a timelimit to be fixed by the President,written statements,or to hear, at a public sitting to be held for the purpose, oral statementsrelating to the question."
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But this changed over time. As adopted, Article 133 of the ITLOS Rules avoids the ambiguous language ofArticle 66 of the ICJ Statute by replacing "international organization" with "intergovemmental organizati~n".'~~ There is no possibility to argue, for example, that international environmental NGOs could be permitted to participate in ITLOS advkory proceed;ngs under the exkting Rules.'O' Intergovernmental organizations may ask for leave to h i s h information in contentious proceedingsbefore the Chamber or the Tribunal. Could they do so in Chamber advisory proceedings? The answer is probably yes. Article 133 does not clearly permit this, since it is the role of the Chamber or its President to identify and then invite appropriate intergovemmental organizations. But ITLOS is likely to be guided by ICJ practice in relation to Article 66 of the ICJ Statute; for example, in the Palestinian Wall advisory proceedings, following the application of two international organizations the ICJ invited them to participate.lo2 Article 133 is interesting for the entities that are not permitted to participate in advisory proceedings. Although a range of entities, including natural and juridical persons such as multinational corporations and international consortia, can be parties to disputes before the Chamber, they cannot, unless they are States Parties to UNCLOS or invited intergovernmental organizations, participate in advisory proceedings. This contrasts with the ICJ, where there are broader rights of participation in advisory proceedings than in contentious ones. 2.4
Concluding remarks
Should ITLOS want to open itself to amicus curiae submissions from entities other intergovernmental organizations, it has some options which are limited but could conceivably be used. The Tribunal has the power under its Rules to appoint experts proprio motu.Io3But it is almost inconceivablethat the Tribunal would use this provision as a basis for a general power to appoint amici curiae. First, that power is intended for the selection of scientific or technical experts under Article 289 of UNCLOS and from particular lists prepared in accordance with Annex VIII.l" Secondly, and perhaps most importantly, experts appointed in accordance with Article 289 of the Convention take part in the Tribunal's judicial deliberations.Io5It is unlikely that the States Parties to UNCLOS
Ica In the Final Draft Rules oftheTribunal, the equivalent ofArt. 133, draft Article 141, retained the term "international organization" but this was changed prior to adoption of the Rules: compare Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sca, Spceial Commission 4, Doc. No. LOSPCNISCN.41WP.16lAdd.I, 19 January 1994. 'O' Compare Beyerlm, "The Role of NGOs in International Environmental Litigation", Zeitschnytfur ausliindisches oflentliches Recht und Volkerrecht,Vol. 61,2001, pp. 357-378, at p. 358. Io2 See text accompanying note 48. '" 3 0 s Rules, Art. 15. IW It is possible that States could nominate experts on the basis of their competence in legal aspects of one of the four fields of expertise, for example, fisheries: compare Annex VIU, Art. 2(3). But States Parties can only nominate two experts. '"'ITLOS Rulcs, Art. 42.
N -n.n. --S.t--n.-t ~-Artnrr Inw - - .- . - nnd -. .-.-Int~rnntinnnl . ..-. . .-. - ..- - ,.
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are ready for NGO representatives to help decide disputes, let alone participate in a limited capacity as amici curiae. The Tribunal apparently has no power to call witnessesproprio motu. So, even to the extent that witnesses' functions could sometimes overlap with those of amici curiae, this option is unavailable to the Tribunal. Under Article 82 of its Rules, ITLOS also has a broad power, if it considers necessary, "to arrange for an inquiry or an expert opinion" and it may issue an appropriate order after hearing the parties on the issue.lo6This provision is based on Article 50 of the ICJ Statute, which provides: "The Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion." In principle, Article 82 of the ITLOS Rules could permit it to appoint an individual or NGO as amicus curiae, after due consideration of the disputing parties' views. But it is unlikely that ITLOS will do so in the near future. First, its Rules have been guided closely by ICJ procedure and practice, and the ICJ has never used Article 50 of its Statute to appoint an amicus curiae, so ITLOS is unlikely to take the lead. Secondly, and more broadly, considering that UNCLOS was such a carefully negotiated and complex treaty, the Tribunal may well be reluctant to permit access to entities not specifically contemplated in the Convention. (States have made similar comments in relation to participation in WTO proceedings.) Further, under Article 49 of the ITLOS Rules, Tribunal proceedings "shall be conducted without unnecessary delay or expense". And the Tribunal's recent caseload has consisted mainly of urgent proceedings such as requests for prompt release of vessels or for provisional measures. NGO participation in such proceedings may well be inconsistent with Article 49. On the other hand, should ITLOS acquire a considerably larger, more diverse, and more politically sensitive caseload, the Tribunal might find amici curiae other than States and intergovernmental organizations of some assistance. Could ITLOS change its Rules to allow greater participation in Chamber advisory proceedings? Until the Chamber is operative the question is moot. But should the Chamber become operational, since its jurisdiction concerns the deep seabed - "the common heritage of mankind" - it is likely that there will be pressure from international environmental NGOs to participate in Chamber proceedings, as they brought to bear in WTO, NAFTA and ICSID proceedings and as they have attempted to do before the ICJ. As with the question of expansion of participation in ITLOS' contentious jurisdiction, there will be powerful considerations against doing so.
3. European Court of Human Rights The European Court of Human Rights ("ECHR") was established by the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms ("the
Io6
ITLOS Rules, Art. 82.
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Convention") and set up in 1959.Io7Since 1 November 1998,Io8the ECHR has been a full-time court with compulsory jurisdiction over applications that allege a breach by a Contracting State of one or several Convention rights and that may be submitted directly to it by Contracting States and by individuals (including groups of individuals and NGOs).lo9 The Court is composed of a number of judges equal to that of the Contracting States, currently 45. The Court sits as both a Grand Chamber and in smaller formations such as Chambers. Nineteen ninety-eight marked a fundamental change in the ECHR's role under the Convention, and the role of the individual before it. Before 1998, recognition of the right of individual application was optional and that right could be exercised only against those States which had accepted it. Before the (part-time) Court could hear an application, it had to be first considered by the European Commission of Human Rights. (The Commission was abolished on 1 November 1998, subject to transitional arrangements.) The Commission determined the complaint's admissibility. If the complaint were admissible, and the Commission was unable to broker a friendly settlement, it drew up a report establishing the facts and expressing an opinion on the merits. The report was then transmitted to the Committee of Ministers.'l0 Where the respondent State had accepted the Court's compulsory jurisdiction, the Commission and any Contracting State concerned had three months following the report's transmission to bring the case before the Court for a final and binding adjudication. Individuals were not entitled to bring their cases before the Court."' Some scholars have considered the evolving role of the individual in the Convention's supervisory and enforcement mechanisms prior to 1998, including their participation as amici curiae."2 Considering this scholarship, and the fundamental
Io7 The information in the following paragraphs about the background, organization and procedure of the ECHR is taken from: "The European Court of Human Rights: Historical Background, Organisation and Procedure", information document issued by the Registrar of the European Court of Human Rights, Scptcmbcr 2003, available at http://www.cchr.coc.int/ECHR/EN/Hcadcr/Thc+Court/ The+Court/Other+Languages/. log On 1 November 1998 Protocol No. 11 came into force and amended the Convention. Io9 Contracting State applications under Article 33 ofthe Convention are rare. Individual applications are made pursuant to Article 34 of the Convention: "The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right." 'lo The Committee is composed of the Ministers of Foreign Affairs of the member States or thclr reprcsentatives. 'I1 See information document cited at note 107: "If a case was not referred to the Court, the Committee of Ministers decided whether there had been a violation of the Convention and, if appropriate, awarded 'just satisfaction' to the victim. The Committee of Ministers also had responsibility for supervising the execution of the Court's judgments." On 1 November 1998 the Committee of Ministers' adjudicative role was abolished. ' I 2 Scc in particular: Brownlic, citcd notc 26, pp. 713-716; Shclton, citcd at notc 2, at pp. 630-638; Ascencio, cited at note 22, at pp. 901-902; and Razzaque, cited note 3, at pp. 180-184.
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changes in 1998 to the Court's role and that of the individual before it, this paper only considers in detail the Court's practice following November 1998. Since 1998 the ECHR has had broad discretion under Article 36 of the Convention to permit third party-intervention in its proceedings. Article 36 of the Convention provides: 1. In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings. 2. The President ofthe Court may, in the interest of the proper administration ofjustice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit writtcn commcnts or takc part in hearings.
Article 36(2) was introduced into the Convention on 1 November 1998, when Protocol No. 11 came into force.H3The origin ofArticle 36(2) of the Convention (and of the corresponding provision in Protocol No. 11) is Article 37(2) of the Court's Rules of Procedure, as amended on 1 January 1983. Following proceedings in which the Court permitted for the first time a third party (a British trade union) to participate in oral argument,Il4 the Court amended Article 37(2) explicitly to permit third-party interventions: The President may, in the interest of the proper administration of justice, invite or grant leave to any Contracting State which is not a party to the proceedingsto submit written comments within a time-limit and on issues which he shall specify. He may also extend such an invitation or grant leave to any person conccrncd othcr than thc applicant.
The provision in the ECHR Rules of Court that deals with amicus curiae participation is now Rule 44 (Third-party intervention). It amplifiesArticle 36 of the Convention by prescribing, amongst other things: time-limits for notices and applications; the form of requests for leave to participate; consequences of non-compliance with conditions imposed in granting leave to participate; and entitlement of the parties to respond. As amended by the Court on 7 July 2003, Rule 44 provides: 1. (a) When notice of an application lodged under Article 34 of the Convention is given to the respondent Contracting Party under Rule 54 $2 (b), a copy of the application shall at the same time be transmitted by the Registrar to any other Contracting Party one of whose nationals is an applicant in the case. The Registrar shall similarly notify any such Contracting Party ofa decision to hold an oral hearing in the case. (b) If a Contracting Party wishes to exercise its tight under Article 36 5 1 of the Conventionto submit written comments or to take part in a hearing, it shall so advise the Registrar in writing not later than twelve weeks after the transmission or notification referred to in the preceding sub-paragraph. Another time limit may be fixed by the President ofthe Chamber for exceptional reasons. 2. (a) Once notice of an application has been given to the respondent Contracting Party under Rule 5 1 4 1 or Rule 54 5 2 (b), the President of the Chamber may, in the interests of the proper administration of justicc, as providcd in Articlc 36 $2 of thc Convention, invitc, or grant lcavc to, any Contracting Party which is not a party to the proceedings,or any person concerned who is not the applicant,to submit written comments or, in exceptional cases, to take part in a hearing. ' I 3 Protocol NO. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, ETS No. 155, 11 May 1994 ("Protocol 11"). !I4 Young, James and Webster v. United Kingdom, 44 Eur. Ct. H.R. (ser. A) (1 981).
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(b) Requests for leave for this purpose must be duly reasoned and submitted in writing in one of the official languages as provided in Rulc 34 54 not later than twelve weeks after notice of the application has been given to the respondent Contracting Party. Another time limit may bc fixed by the President of the Chamber for exceptional reasons. 3. (a) In cases to be considered by the Grand Chamber the periods of time prcscribed in the preceding paragraphs shall run from the not;ficat;on to the o f the dec;s;on o f the Chambcr under Rule 72 6 1 to relinquish jurisdiction in favour of the Grand Chamber or of the decision of thc panel of the Grand Chambcr under Rule 73 92 to accept a request by a party for referral of the case to the Grand Chamber. (b) The time-limits laid down in this Rule may exceptionally be extended by the President of the Chamber if sufficient cause is shown. 4. Any invitation or grant of leave referred to in paragraph 2 (a) of this Rule shall bc subject to any conditions, including time-limits, set by the President of the Chamber. Where such conditions are not complied with, the President may decide not to include the comments in the case file or to limit participation in the hearing to the extent that he or she considers appropriate. 5. Written comments submitted under this Rule shall bc drafied in one of the official languages as provided in Rule 34 94. They shall be forwarded by thc Registrar to the parties to the case, who shall be entitled, subject to any conditions, including time-limits, set by the President of the Chamber, to file written observations in reply or, where appropriate, to reply at the hearing.
Rule 44 is located in Chapter I "General Rules" of Title L1 "Procedure". Prior to 7 July 2003, the text of Rule 44 was substantially contained in Rule 61 of the Rules of Court, which was found in Chapter V "Proceedings after the Admission of an Application".'15 In moving the provision into the chapter dealing with "General Rules", the Court has highlighted the rule's general applicability, including perhaps its general temporal applicability. Consistent with the Court's ongoing re-examination of its procedures with a view to addressing its crushing ca~eload,"~ the differences between Rule 44 and former Rule 61 relate mainly to time; the Court has now stipulated a range of time-limits for issuing and submitting the relevant notices, applications and written comments. In practice, to what extent has the Court permitted, under Article 36(2) of the Convention, third-party intervention by non-State actors? And what does the Court's contemporary practice reveal about the classes of third parties welcomed by the court and the reasons for such a welcome? From 1 November 1998 until 3 1 December 2004, the Grand Chamber and other bodies delivered some 4,000 decisions and judgments in relation to over 4,300 applications.l17Over the period from 1 November 1998 to 3 1 March 2005, the Court heard, and delivered judgment in 35 applications in which third parties participated pursuant to Article 36(2).IlXAdditionally, in relation to one application a third party had sought, and been refused, leave to intervene.lI9These figures indicate that while the ECHR has a fairly substantial amicus practice in absolute terms, relatively speaking, amici curiae have participated in less than one per cent of the ECHR's proceedings since 1 November 1998. European Court of Human Rights, Rules of Court, Strasbourg 1999, as in forcc at 1 November 1998. ASat 1 May 2005, some 80,000 applications were pending: see ECHR, Statistics. 1Januaiy30Aprd 2005, available at http://www.echr.coe.int/ECHR/EN/Hcader/Reports+and+Statislics/Statistics/ Shtistical+Tables/ . ECHR, Survey ofActivities, 1999-2004. All unpublished ECHR cases referred to in this Chapter are available online using HUDOC, which is accessible through the ECHR website: http://www.echr.coe.int. 'I9 Hutten-Czapska v. Poland, no. 35014197, Judgment, Fourth Scction, 22 Fcbmary 2005. Il5
ILb
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So amici curiae intervene in ECHR proceedings relatively frequently in absolute terms, but in about 99 per cent of case dealt with by the Grand Chamber and Sections they do not participate and, apparently, do not seek to participate. Why might this be so? First, because of the Court's huge caseload and its practices to address it, those proceedings heard by a Grand Chamber or Section are likely to involve the kind of important legal issues or serious consequences that make it appropriate for third-party participation. Secondly, for those familiar with the Court's practice, it is probably clear when applications for third-party intervention are likely to be successful. If this is correct, the low number of refused requests for intervention might be explained on the basis that, if a request has little likelihood of success, it is unlikely to be made at all. The Court's contemporarypractice indicates that there are three main classes of person whose intervention is often welcomed by the Court: (a) Persons other than the applicant with a clear interest in the domestic proceedings to which an application before the ECHR relates; (b) Entities, groups or individuals with relevant specialist legal expertise or factual knowledge; (c) Industry interest groups with views closely aligned to the applicant. These classes shall be separately addressed below. a) Persons other than the applicant with a clear interest in the domestic proceedings to which an application before the ECHR relates. The nature of the interest can be direct, for example that of a party to proceedings out of which the ECHR application arises, or less direct, for example where the ECHR proceedings relate to criminal proceedings, the victim or the victim's family. The main purpose of permitting such intervention seems to be to give such third parties an opportunity to be heard before the Court issues a judgment that could affect their legal interests. The following proceedings after 1 November 1998 fall within this category: Where the applicant's complaint related to defamation proceedings brought against him by a Slovak Minister, the plaintiff Minister was permitted to intervene in the written procedure;120 Where the applicant, Princess Caroline of Monaco, complained about photos published by a German magazine publisher, the publisher was permitted to intervene in the written procedure;121 Where Italian applicants brought an application relating to proceedings in Romania for the adoption of two orphan girls whom they wanted to take with them from Romania, the Court permitted the intervention in the written and oral proceedings of officials associated with the Romanian educational institution in whose care the orphan girls had been placed initially, and the orphan's legal representatives.' 22 An application by eight UK nationals concerned night noise levels at Heathrow Airport, near London. BritishAirways, the primary user of Heathrow Airport, was permitted to make written submissions. Its submissions, which dealt with the commercial significance of, and need for, night flights, were referred to in both
I2Veldek v. Slovakia, no. 29032195, Judgment, Chamber (Second Section), 12 July 2001. I 2 l von Hannover v. Germany, no. 59320100, Chamber (Third Section), Judgment, 24 June 2004. '22 Pini, Bertani, Manera and Ahipaldi v. Roumania, nos 78028101 and 7803O/Ol, Judgment, Chamber (Second Section), 22 June 2004.
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the Court's judgment and in the dissenting opinion of the ad hoc judge, Sir Brian Kerr. 123 The applicant was an Ivory Coast national who had been adopted by a French national. The application related to the refusal of France to award him an
allowance for disabled adults, notwithstanding his connection to France through his adoptive father. With the Court's leave, the applicant's father made written legal submissions.lZ4 The ten Turkish applicants lived in an area where a company had been granted permission to operate a gold mine. They had brought proceedings to have the company's permit annulled. The ECHR permitted the company to make written submissions. These submissions related only to factual issues. The intervenor was a company whose interests would be affected by the ECHR's decision because it had been granted permits to operate the gold mine. The applicants had alleged, amongst other things, that the operating permits issued for the gold mine and the related decision-making process had violated Articles 2 and 8 of the Convention. 25 An applicant alleged that restrictions on French nationals (such as himself) voting in elections in New Caledonia violated the right to free elections guaranteed by Article 3 of Protocol No. 1 and discriminated on the basis of nationality in violation of Article 14 of the Convention. The intervenors were New Caledonia residents who, it seems, were also deprived of the right to vote in the same elections. With permission, they made written legal submissions to the Court.lZ6 The parents of the child who had been murdered by the applicant were permitted to make written and oral submissions to the C 0 ~ r t . I ~ ~ A victim's father who had been joined as apartie civile to criminal proceedings instituted in France against the German applicant was permitted to make written comments. 12* b) Entities, groups or individuals with relevant specialist legal expertise or factual knowledge. Sometimes legal submissions are made by advocates of a certain position. Other times the amicus is more neutral and objective. Some NGOs, for example, Liberty, have clearly demonstrated their usefulness to the Court and have successfully intervened several times. The following proceedings after 1 November 1998 involve participation within this category:129 L23 Hatton and Others v. United Kingdom, no. 36022197,Judgment, Chamber (Third Section),2 October 2001. '24 Koua Poirrez v. France, no. 40892198, Judgment, Chamber (Second Section), 30 September 2003. IZS Tqkin and Others v. Turkty, no. 461 17199,Judgment, Chamber (Third Section), 10 November 2004. 126 Py v. France, no. 66289101, Judgment, Chambcr (Formcr Second Section), 11 January 2005. 12' I? V. United Kingdom, no. 24724194, Judgment, Grand Chamber, 16 December 1999. lZn Krombach v. France, no. 29731196, Judgment, Chamber (Third Section), 13 February 2001. n9 In addition to the cases summarized in the text, entities, groups or individuals with relevant specialist legal expertise or factual knowledge participated in the following proceedings: Justice, an NGO (Tv. United Kingdom, no. 24724194, Judgment, Grand Chamber, 16 December 1999); the European Roma Rights Centre (Chapman,Beard, Coster and Lee v. United Kingdom, nos 27238195,24882194,24876194 and 25289194, Judgments, Grand Chamber, 18 January 2001); Professor G. Van Bueren, Director of the Programme on Intcmational Rights of thc Child, Univcrsity of London (Z. and Others v. United Kingdom, no. 29392195, Judgment, Grand Chamber, 10 May 2001).
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The Court granted leave to the Center for Justice and International Law, a nongovernmental human rights organisation in the Americas, to submit written comments relating to the jurisprudence of the Inter-American Court of Human Rights on the issue of forced disappearances.I3O Liberty, an NGO that has appeared several times before the ECHR, submitted a detailed written report on the legal recognition of transsexuals in comparative law. The report supplemented one previously given to the ECHR. The Court not only gave a detailed summary of Liberty's report, it also expressly referred to it in reaching its assessment of violations of Articles 8 and 12 of the C0nventi0n.l~~ In proceedings concerning the difference in treatment of homosexuals as regards succession to tenancies under Austrian law, the Court permitted three NGOs to intervene in writing and in the oral proceedings. These NGOs were represented by one person, and it seems that their submissions were at least coordinated, and perhaps joint. One NGO, Liberty, had appeared several times before the ECHR. The other two NGOs, ILGA-Europe (The European Region of the International Lesbian and Gay Association) and Stonewall, had particular expertise in issues relating to discrimination on the basis of sexual orientation, to which these proceedings related. The Court stated that the intervention of these NGOs in the proceedings as third parties was authorised "as it highlights the general importance of the issue" in the territories of all Contracting Parties.132 In an application arising out of an incident relating to Northern Ireland, the Court permitted the Northern Ireland Human Rights Commission to provide written comments about the form which investigations into the use of lethal force by State agents should take.133 The four Turkish national applicants were former members of the Turkish National Assembly and of the Democracy Party, which was dissolved by the Constitutional Court in June 1994. Their parliamentary immunity was lifted and they were convicted by a National Security Court of belonging to an armed gang formed with the intention of committing offences related to the integrity of the State. The applicants submitted for their part that the criminal proceedings had been brought for a political purpose, namely, to suppress the opinions of members of Parliament defending the Kurdish cause. The Inter-Parliamentary Union (IPU) was permitted to intervene in writing and the Government of Turkey responded to its comments. The Court made several references to the IPU's submissions and views.134In subsequent proceedings the Court permitted written submissions fiom an NGO, Interights (The International Centre for the Legal Protection of Human Rights).135 "O
'"
limurta$ v. Turkey,no. 23531194, Judgment, Chamber (First Section), 13 June 2000. I. and Goodwin v. United Kingdom, nos 25680194 and 28957195, Judgments, Grand Chamber, 1l July
2002. Karner v.Ausfria, no. 40016198, Judgment, Chamber (First Section), 24 July 2003, $27. Jordan v. United Kingdom, no. 24746194, Judgment, Chamber (Third Section), 4 May 200 1. 'I4 Sadak and Others v. Turkey (No. 1), nos 29900196,29901/96,29902196 and 29903196, Judgment, Chamber (First Section), 17 July 2001. 'I5 Sadak and Others v. Turkey (No. 2), nos 25144194,26149195 to 26154195,27100195and 27101195, Judgment, Chamber (Fourth Section), 11 June 2002. 132
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In an application relating to adoption proceedings in Romania, the Court permitted the intervention of a Special Rapporteur to the European Parliament who had considered Romania's application for membership of the European Union and had particular knowledge of Romanian adoption
In a case that raised issues of euthanasia and assisted death, the Court permitted
written submissions by two British organizations that held different views about these issues: the Voluntary Euthanasia Society and the Catholic Bishops' Conference of England and Wales. The Court referred in detail to the views and information provided by them.'" In one case where an issue was the legal status of a child in utero, the Court granted leave to intervene in writing to two prominent NGOs concerned with such issues. Both NGOs submitted arguments in support of the view that a foetus should not be treated as a person for the purposes of Article 2 of the Convention. One NGO based in the United States of America, the Center for Reproductive Rights, presented a comparative study of case-law and legislation in Europe, Canada and the USA. The Court set out a substantial summary of this NGO's report. The other NGO made submissions about the legal position in the member States of the Council of Europe, referred to recent studies, and analyzed in-depth the legal position in the United Kingdom.138 The applicants were two Uzbek opposition politicians accused of terrorist attacks directed against the Uzbek President. Their application concerned their extradition, in breach of interim orders by the ECHR, from Turkey to Uzbekistan in relation to those accusations. The applicants alleged violations of Articles 2 , 3 and 6 of the Convention and of Rule 39 of the Rules of Court. The Court let intervene in writing a number of prominent NGOs with specialist experience in human rights and particular knowledge of conditions in Uzbekistan: Human Rights Watch (HRW), the International Commission of Jurists and the A R E Centre. HRW had followed the applicants' trial in Uzbekistan following their extradition there. Although Amnesty lnternational did not intervene, the Court referred to substantial passages about Uzbekistan in two of Amnesty's reports.139 In one case an international organization with specialist background factual knowledge, the Organisation for Security and Cooperation in Europe (OSCE), was granted leave to intervene in writing. The applicant's flat in Zadak, Croatia, was subject of a specially protected tenancy. In the summer of 1991 she departed temporarily to Rome. Subsequently,armed conflict broke out in the area and third persons broke into her flat and occupied it. The Croatian courts then ordered that the applicant's specially protected tenancy be terminated. The applicant appealed. The OSCE provided a detailed analysis of the nature and number of mass terminations of specially protected persons in Croatia. The OSCE also submitted a detailed analysis of the legal status accorded to specially protected tenancies in Pini, Bertani, Manera and Atripaldi v. Roumania, cited at note 122. Pretty v. United Kingdom, no. 2346102, Judgment, Chamber (Fourth Section), 29 April 2002. VOv. France, no. 53924100. Grand Chamber, Judgment, 8 July 2004, $860 73. i39 Mamatkulov and Askarov v. Turkey, nos 46827199 and 46951199, Grand Chamber, Judgment, 4 Fcbmary 2005. 136
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Bosnia and Herzegovina. The respondent Government submitted detailed comments on the intervenor's submi~sions.~~0 c) Industry interest groups with views closely aligned to the applicant were also welcomed in thefollowing proceedings: Where an application by two Danish journalists concerned criminal proceedings against them in Danish Courts in relation to a documentary film they had made, the Court permitted a concerned interest group to intervene in writing, the Danish Union of Journalists. The intervenor made legal submissions about the scope of the guarantee of freedom of expression under the Convention and submissions about the quality of the journalists' investigations in the process ofpreparing the fi1m.141 Where the applicant, Princess Caroline of Monaco, complained about photos published by a German magazine publisher, the Court permitted the Association of German Magazine Publishers to submit written comments.142 As to the form and content of amicus curiae participation, ECHR practice indicates that the ECHR is content to receive submissions on legal issues within the judges' core competence, that is, international human rights law. Participation is usually limited to written submissions. The Court sometimes permits oral participation where such parOf the ticipation might be particularly useful in addition to the written submis~ions.l~~ 35 proceedings that the Court heard, and deliveredjudgment in, between 1 November 1998 to 3 1 March 2005, and in which third parties intervened, the Court only permitted amici to participate in three hearings.144The Court's Rules do not prescribe any particular page length for either requests for leave to intervene or for the written submissions themselves. In granting leave, the Court is entitled to limit the length of the written submissions. The Court has attempted to ensure that amicus participation does not unduly delay its proceedings by prescribing time-limits for receiving the requests and any subsequent submissions. Amici have no right, as such, to be heard by the Court. They can only make submissions with the Court's leave. It has been asked in the context of WTO proceedings whether, after granting permission to an amicus to make written submissions, the Court has a duty to take into account the amicus ' views. For the ECHR this question seems moot. The ECHR usually refers in its reasons for judgment to the fact of amicus participation and summarizes the amicus ' submissions. It is difficult to imagine that a busy Court would permit amicus participation while contemplatingthat it was under no duty to even consider the resulting submissions. The parties also have the right to respond to any amicus submissions.
L4"leEiC v. Croatia, no. 59532100, Chamber (First Section), Judgment, 29 July 2004. I4l Pedersen and Baadsgaard v. Denmark, no. 9017199, Grand Chamber, Judgment, 17 December 2004. L42 von Hannover v. Germany, cited at note 12 1. 143 Compare Karner v. Austria, cited at note 132, 827. '" Karner v. Austria, cited at note 132; i? v. United Kingdom, cited at note 127; Phi, Bertani, Manera andAtripaldi v. Roumania, cited at note 122.
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In the course of its proceedings the ECHR has had occasion to comment on the juridical nature of the amici curiae that appear before it.145The Court has made clear that an amicus curiae is not a party to the proceedings. Therefore, for example, unlike an applicant, an intervenor is not entitled to an award of damages under Article 41 of
the Convention.l+6Further, the Court has explicitly said that public interest groups' participation can "highlight the general importance of the issue" in the territories of all Contracting Parties.'41
Concluding remarks As well as having specific provisions for amicus participation in the Convention establishing it, the ECHR has demonstrated itself in practice to be particularly receptive to amicus participation. ECHR permits amici curiae to participate for two primary reasons. First this participation gives a measure of due process to persons whose legal interests are likely to be affected because of their involvement in the proceedings out of which the ECHR application arises. Secondly, the participation of public interest groups positively contributes to the ECHR's judgments on important issues. Why else would the Court continue to permit such participation in the face of an enormous caseload? ECHR practice indicates that the floodgates argument is not of itself a good reason to limit or deny access to amici curiae. The ECHR appears to have effectively managed amici participation. Although international courts and tribunals will always have human and financial resources problems, and amicus participation not only takes the Court's time but can increase the parties' costs, public interest groups have demonstrated that they can make an effective contribution. A good example is the detailed comparative legal studies that have been submitted by NGOs such as Liberty. These studies saved the time of ECHR judges and staff, who would have taken considerable time to conduct similar analyses. And considering the extent to which the ECHR referred to such reports in their reasons for judgment, it is obvious that such studies contributed to the quality of the judgment. ECHR experience indicates that over time, and with a commitment from the Court and its amici, a beneficial relationship can develop. NGOs have undoubtedly worked hard to gain the Court's confidence. Repeat NGO participants have had to demonstrate their thoroughness and even-handedness. And cooperation in making submissions in particular cases has made the Court's task easier. It might also be that, as Ascensio suggests, because the ECHR is a body in which individuals and NGOs can have locus standi as parties, it is more receptive to their participation as amici curiae than more State-oriented courts such as the ICJ.148 145 In the course of deciding on some applications, the ECHR has also commented briefly about the role of amici curiae in Council of Europe members'domesticjurisdictions, for example, the Deputy AttorneyGeneral in Portugal and the Procureur Gen6ral in Belgium: see Lobo Machado v. Portugal (1 996 ECHR); Vermulen v. Belgium (1996 ECHR), discussed in Razzaque, cited note 3, at p. 17 1. '46 Koua Poirrez v. France, cited at note 124, $568-69. 14' Karner v. Austria, cited at note 132, $27. '4x Asccncio, citcd at notc 22, at p. 901.
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4. International Criminal Courts and Tribunals
4.1 International Criminal Court The International Criminal Court (ICC) is the first ever permanent, treaty-based international criminal court. It was established by the Rome Statute of the International Criminal Court of 1998, which came into force on 1 July 2002.149The ICC's Rules of Evidence and Procedure explicitly provide for the use of amici curiae at trial and on appeal.i50Rule 103 ('Amicus curiae and other forms of submission') provides: 1. At any stage of the proceedings, a Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to submit, in writing or orally, any obscwation on any issuc that thc Chambcr dccms appropriate. 2. The Prosecutor and the defence shall have the opportunity to respond to the observations submitted under sub-mle 1. 3. A written observation submitted under sub-rule 1 shall be filed with the Registrar, who shall provide copies to the Prosecutor and the defence. The Chamber shall determine what time limits shall apply to the filing of such observations.
Under Rule 149, this applies 'mutatis mutandis to proceedings in the Appeals Chamber'. Rule 103 is a broad discretionary power either to invite or, in the case of spontaneous submissions, to grant leave to, amici curiae to submit their observations. Competence to submit observations is not limited: "States, organizations and persons" may be invited or may apply for leave to submit observations."Organizations" is not qualified, clearly leaving the door open to NGOs and mixed-membership organizations as well as public intergovernmental organizations.I5'"Persons" is also not qualified by either the adjectives "natural" or "legal", leaving it to the Court to invite or accept submissions from individuals and corporations or other legal persons. The only criterion for inviting or granting leave to submit observations is whether the Court considers it "desirable for the proper determination of the case". The range of issues upon which observations may be invited or accepted can be legal or factual and is entirely in the Court's discretion - what it "deems appropriate". Observations may be made either in writing or orally. But the Court will no doubt specify which when it exercises discretion to invite or grant leave to an amicus curiae to submit observations and when it sets time-limits for filing. The prosecution and defence have a right to respond to the observations.
14q Romc Statutc of thc Intcmational Criminal Court 1998, Unitcd Nations Diplomatic Confcrcncc of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc. No. AlCONF.18319, 17 July 1998. Is0 Rules of Procedure and Evidence, Official Records of the Assembly of the States Parties, 1st session, 3-10 September2002, Doc. No. ICC-ASPIlD (part 11-A), 9 September 2002. Is' Compare Human Rights Watch, The International Criminal Court: How Nongovernmental Organizationscan Contribute to the Prosecution of War Criminals, September2004.
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Rule 103 is substantially similar to Rule 74 of the ICTY and ICTR Rules, although it emphasizes that amicus participation may be appropriate at any stage of the proceedings. At the time of writing the ICC had not yet conducted any trial or appellate proceedings and therefore has had no amicus curiae experience of its own. The 1CC's practice under Rule 103 will undoubtedly be informed by the practice of the ad hoc international criminal jurisdictions under their equivalent provisions. Accordingly, we tum now to examine the practice and procedure relating to amici curiae before the ICTY, ICTR, and the Special Court for Sierra Leone.
4.2 International Criminal Tribunalfor the Former Yugoslavia (ICTY) and International Criminal Tribunalfor Rwanda (ICTR) Since adoption of its Rules on 11 February 1994, the ICTY has had the explicit power to appoint amici curiae. Rule 74 ('Amicus curiae') provides: A Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to appear before it and make submissions on any issue specified by the Chamber.ls2
The ICTR follows an identical rule: Rule 74.'53Although the ICTY and ICTR Rules have been amended numerous times since their adoption, Rule 74 has not been changed. The ICTY and ICTR have often used their power to appoint amici curiae, in particular: in deferral proceedings; where significant issues of international law are involved at trial or on appeal; and to ensure a fair trial, for example where the accused represents himself. There has also been some amicus curiae involvement in procedures in case of failure to execute a Following consideration of the proceedings in which amici curiae have participated (A), this paper shall consider the tribunal's indications about the nature of amici curiae in the course of these proceedings (B). A. Proceedings in which amicus curiaeparticipate Amici curiae and Rule I 0 d~ferralproceedings The ICTY and ICTR have often formally requested a State that its courts defer to the competence of the Trib~na1.I~~ It has been common practice for the State concerned to ls2 ICTY, Rules of Procedure and Evidence, ITl321Rev. 34, adopted 11 February 1994, as amended on 11 Fcbruary 2005 ("ICTY Rulcs"). Scc also ICTY Registry, Information concerning the submission of amicus curiae briefs, ITl122, 27 March 1997, which elaborates on this rule. The applicant is required to provide a range of information. Is' ICTR, Rules of Procedure and Evidence, adopted 29 June 1995, as amended to 21 May 2005 ("ICTR Rules"). Is4 ICTY Rules, Rule 61 ; ICTR Rules, Rule 6 1. Is' ICTY Rules, Rule 10 and ICTR Rules, Rule 10. ICTY Rule 10(A) provides: "(A) If it appears to the Trial Chamber seised of a proposal for deferral that, on any of the grounds specified in Rule 9, deferral is appropriate, thc Trial Chambcr may issuc a formal rcqucst to thc Statc conccrncd that its court dcfcr to thc
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appear as amicus curiae at the hearing on the proposal to make the request. Before the ICTY the Federal Republic of Germany appeared as amicus curiae in the TadiC deferral proceedings;lS6the Republic of Bosnia and Herzegovina in the Bosnian Serb Leadership (KaradiiC, MladiC and StaniSiC)I57and the LaSva River Valleydeferrals;15* and the Federal Republic of Yugoslavia (Serbia and Montenegro) in the ErdemoviC deferral.lj9This practice satisfies the State's due process expectations, although it must be kept in mind that "as might be expected of a tribunal acting as Chapter VII enforcement measure, the consent of the government is not essential to the granting of the When the State appears as amicus, its status is "virtually that of a Party".lhl In the ICTY ErdemoviC deferral proceedings, the accused's counsel was also present as amicus curiae. Amici curiae and Rule 61proceedings in case of afailure to execute a warrant The ICTY has been more reluctant to permit amicus involvement in Rule 61 procedures in case of failure to execute a warrant.16*Under ICTY Rule 6 1, if personal service of an indictment has not been effected after a reasonable time because of failure to execute a warrant, a judge may order the submission of the indictment to his or her Trial Chamber. If there are reasonable grounds for believing that the accused is guilty of at least some of the crimes charged in the indictment, the Trial Chamber issues an international arrest warrant for him to all States. Pursuant to Rule 6 1(D), the Trial Chamber may also "order a State or States to adopt provisional measures to freeze the assets of the accused, without prejudice to the rights of third parties."163 The ICTY has permitted some amicus participation in Rule 6 1 proceedings. In the KaradiiC and MladiC Rule 61proceedings, for example, the tribunal invited to the hearing a Special Rapporteur of the UN Commission on Human Rights and a member of the Commission of Experts established by Security Council Resolution 780 (1992).lh4 competence of the Tribunal." For the Courts' relevant practice, see Dixon, Khan and May (eds.), Archbold International Criminal Courts: Practice, Procedure and Evidence, London, Sweet & Maxwell, 2003, pp. 37S384, 5$5.61-5.82. Is6In the Matter ofa Proposal for a Formal Request forDeferral to the Competence ofthe International Tribunal Decision of the Trial Chamber on the Application by the Prosecutor for a Formal Request for Deferral to the Competence of the International Criminal Tribunalfor the Former Yugoslavia in the Matter ofDusko Tadid (Pursuant to Rules 9 and I0 of the Rules ofprocedure and Evidence), case No. IT-94-1-D, 8 November 1994. '51 In the Matter of a Proposal for a Formal Request for Deferral to the Competence of the Tribunal Addressed to the Republic ofBosnia and Herzegovina in Respect ofRadovan Karadiic, Ratko Mladik and Mico Staniiib, case No. IT-95-5-D, 16 May 1995. lS8 In the Matter of a Proposal for u Formal Request for Deferral to the Competence of the Tkibunal Addressed to rhe Republic of Bosnia and Herzegovina in Respect of Crimes Against the Population of the M a River Valley,case No. IT-954D. 1 1 May 1995. Is9In the Matter of a Proposalfor a Formal Request for Deferral to the Competence of the International Tribunal Addressed to the Federal Republic of Yugoslavia in the Matter of Drazen Enlemovic, case No. IT-96-22-D, 29 May 1996. IbUDixon, Khan and May (eds.), cited at note 155, p. 382, $5.74. I6l Dixon, Khan and May (eds.), cited at note 155, p. 571,@.4.137. ICTY Rules, Rule 61; ICTR Rules, Rule 61. For a summary of the Courts' practice, see Dixon, Khan and May (eds.), cited at note 155, pp. 56&573,§8.4.119-8.4.148. 163 ICTY Rules, Rule 61(D); ICTR Rules, Rule 61(D). IM Prosecutor v. Karadiib and Mladib, Review of the indictments pursuant to Rule 61 of the Rules of Procedure and Evidence, cases Nos. IT-95-5-R6 1 ; IT-95-1 8-R61, 16 July 1996, $2.
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Other applications have been refused. In the same case the trial Chamber rejected a request by an international NGO, Human Rights Watch, to submit a brief as amicus curiae. The Chamber stated: "it does not appear necessary that a brief presenting the proceedings organized by virtue of this text, whose principles and merits cannot be legally challenged, should be submitted."165And the ICTY refused the Republic of Croatia's request to make submissions about the nature of the conflict in the former Yugoslavia as amicus curiae in Rule 61 proceedings relating to Ivica R a j i ~ . ~ ~ ~ Why has the ICTY apparently been less open to State participation as amicus in Rule 61 proceedings than in Rule 10 proceedings? Perhaps it relates partly to the general nature of the submissions that Croatia sought to make in Rule 61 proceedings, and partly because of the limited impact of the Tribunal's possible decisions on the relevant State's rights and interests. To date there has not been an order for a State to take provisional measures pursuant to Rule 61(D). Had such orders been proposed, amicus involvement would have been more likely because of the direct effect of the orders on the individual's interests and the State's duties.16' Amici curiae at trial and on appeal At trial and on appeal amici have been used extensively by the ICTR and the ICTY. Their participation has served a number of functions, for example: to provide advice on important issues of general and criminal international law (Tadid; BlaCkid; Sernanza; Brdjanin and Talic); to act as a check on the prosecutorial discretion about what charges are included in indictments (Akayesu); to comment on gender-related evidential issues (Furundiija); and to explain the scope of the UN Secretary-General's waiver of a former UN official's privileges and immunities to give evidence before the Tribunal (Akayesu). In Tadic, the accused filed a preliminary motion objecting to ICTY jurisdiction, primarily on the basis that the Security Council had no power to establish the Tribunal. The US Government successfully intervened in relation to this important question of general international law on the basis of "its special interest and knowledge as a Permanent Member of the UN Security Council and its substantial involvement in the adoption of the Statute of the Tribunal".168In the course of the Tadid proceedings the ICTY received many requests to intervene as amici curiae for various purposes and at various stages. For example, a UK law professor. Christine Chinkin, was permitted to L65 Order on a Request to Submit an Amicus Curiae BriefDuring the Proceedings Pursuant to Rule 61 of the Rules ofprocedure and Evidence, cases Nos. IT -95-5-R61; IT--95-1 8-R61,21 June 1996. Text as quotcd by Dixon, Khan and May (cds.), citcd at notc 155, p. 57 1, 58.4.136. '" IT-95-1 2-R61, referred to in ICTY, Third Annual Report, UN Doc. No. A15 11292, 16 August 1996, 965. 167 Similar conccms arise for similar reasons in the case of UN Security Council sanctions committees, some of which have power to order the freezing of an individual's financial assets in the absence of charges or the right to be heard. The Al Qaeda and Taliban Sanctions Committee, established pursuant to Security Council Resolution 1267 (1999) and subsequent resolutions, is an example of such a committee. Submission of the Government of the United States concerning certain arguments made by counsel for thc accuscd in thc casc of thc Prosecutor ofthe Tribunal v. h v a n Tadii., 1. Tcxt as quotcd by Dixon, Khan and May (eds.), cited at note 155, p. 698, $8.5.505.
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file an amicus brief for the purposes of the preliminary status conference to discuss mainly procedural matters. The brief made submissions about the appropriate principles in international criminal proceedings relating to witness confidentiality( v i s - h i s the public) and witness anonymity (vis-a-vis the accused).l69 Both the Trial and Appeals Chambers used amici curiae extensively in the BlasEC proceedings when they considered the ICTY's power to address subpoenas to sovereign States and their high government officials, and the appropriate remedies for nonc0mp1iance.l~~ Evidently, these were significant questions of both international criminal procedure and general international law. The Trial Chamber invited requests to participate as amicus curiae and specified the questions to be addressed. It received a number of requests from individuals, mainly distinguished international law professors, and some NGOs such as Juristes sans Frontibres and the Lawyers Committee for Human Rights. The Trial Chamber granted leave to 13 applicants to make written submissions, amongst whom seven were allowed to participate in the hearing.171On appeal, the Appeals Chamber extended a similar invitation for amici to p a r t i ~ i p a t e . ' ~ ~ This time five States also responded with amicus curiae briefs.173 In Semanza the ICTR considered Belgium's request to appear as amicus curiae to make submissions about the scope of Common Article 3 of the Geneva Conventions and Additional Protocol 11. Belgium considered that the ICTR had interpreted these provisions too restrictively. The tribunal thought that it might be useful to gather additional legal views about these provisions and so permitted Belgium to make written submissions, but only relating to the legal principles involved and not the particular circumstances of this or any other ICTR case.174 The Appeals Chamber also permitted written and oral amicus curiae participation on behalf of 34 media companies and journalists' associations in proceedings that raised the issue of compelled testimony by war correspondentsbefore a war crimes tribunal. The issue was novel and there did not appear to be any case law directly on point.175 '6j Prosecutor v. Tadik, Decision on the Prosecutor's Motion Requestinghtective Measuresfor fictims and Ktnesses, case No. IT-94-1, 10 August 1995,§10. Case No. IT-95-14-PT. 17' Prosecutor V. Blaskit, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, case No. IT-95-1 4, 18 July 1997, $§7,8, 10 and 12. 17* Prosecutor V. Blaskit, Decision on the Admissibility of the Request for Review by the Republic of Croatia of'an Interlocuto?y Decision o f a Trial Chamber (Issuance of Subpoenae Duces Tecum) and Scheduling Order, case No. IT-95-14,29 July 1997, $16. 173 Prosecutor V. BlaskiC Judgement on the Request of the Republic of Croatiafor Review of the Decision of Trial Chamber Nof 18 July 1997, case No. IT-95-14,29 October 1997, $17. For more details about participation in these proceedings, see for example Pavia, "Juristes sans Frontieres: 'Amicus Curiae' du Tribunal p6nal international pour l'ex-Yougoslavie", in Juristes sans Frontieres, Le Tribunalp&al internationalde La Haye: le droit 1 'kpreuvede la 'punzcationethnique ', Paris, L'Hamattan, 2000, pp. 235-277. 17' Prosecutor v. Semanza, Decision on the Kingdom ofBelgium k Application to File an Amicus Curiae Brief and on the Defence Application to Strike the Observations of the Kingdom ofBelgium Concerning the Preliminary Response by the Defence, case No. ICTR-97-2&T, 9 February 2001, $10. The Belgian Government advised the ICTR that it did not want to make oral submissions. 17s Prosecutor V. Brdianin and Talic, Decision on Interlocutory Appeal, case No. IT-99-36-AR73.9, Appeals Chamber, 11 December 2002, §$7,30.
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It is notable that some of issues addressed by amici in the cases referred to above were related to general intemational law rather than intemational criminal law. Amicus participation appeared to have comforted the judges who, although able, had much more experience in the realm of international criminal law than in that of general inter-
national law. Amici curiae have also acted as a check on the prosecutorial discretion about what charges to include in indictments. In the Akayesu proceedings before the ICTR,176the accused had not initially been charged with crimes of rape or other sexual violence. During the trial evidence emerged about the accused's prominent role in mass rape in Rwanda. Subsequently a coalition of international and Rwandan NGOs concerned with international human rights and women's issues were granted leave to submit an amicus brief that urged the prosecutor to amend the indictment to bring charges of rape and sexual violence against the accused. Following acceptance of the brief, the Prosecutor duly amended the indictment.17' In Furundiija the ICTY appreciated an amicus curiae application from a coalition of women's groups who made submissions about the credibility of a rape victim's evidence as witness and about appropriate protective measures for the witness. Proceedings had been re-opened because of the Prosecutor's late disclosure of evidence that, after being raped, the witness had received medical, psychological or psychiatric treatment or counselling.178 The ICTR permitted the UN Secretary-General's representative to make written and oral submissions as amicus in the Akayesu proceedings. The amicus explained the scope of the UN Secretary-General's waiver of a former UN official's privileges and immunities to give evidence before the Trib~na1.l'~ The ICTR's decision is consistent both with the special role of the Secretary-General in the determination and waiver of UN privileges and immunities and with ICJ practice in advisory proceedings initiated pursuant to the 1946 Convention on the Privileges and Immunities of the United Nations.Ix0 ICTY practice indicates that requests to participate will not be granted where the Court considers them not useful. For example, in TadiC an organization called Courtroom Television Network sought leave to oppose a Defence motion to curtail press access to the forthcoming trial. The Chamber rejected the request because it said that the major part of the Defence motion had been rejected and that the Network's views were adequately set out in its request for leave to appear as amicus curiae.'81 The ICTY's practice raises the question of whether and what sort of amici are more welcome than others. Certainly invited friends are the most welcome. Well-known friends who seek an invitation too may be welcome; in the Tadic' proceedings, for
Il6
178
'79
Prosecutor V. Akayesu, case No. ICTR-9M-T. See Razzaque, cited note 3, at p. 189. ProsecuforV. Antu Fururuiiija, Judgment, Trial Chamber, 10 December 1998, compare $535, 107. Prosecutor v. Ahyesu, Judgement, Appeals Chamber, case No. ICTR-9-T, 2 September 1998,
$25. See text accompanying notes 44 to 47. Prosecutor V. Tadit, Order Denying Leave to Appear Amicus Curiae, case No. IT-94-I-T, 3 May 1996. 180
Ia1
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instance, the ICTY was sympathetic to applications from several well-known international lawyers. Following its appointment of three invited amici curiae the Trial Chamber in MiloSeviC was unsympathetic to subsequent uninvited applications to submit amicus briefs.ls2 Amici curiae and ensuring a fair trial In the proceedings against Slobodan MilobeviC the ICTY appointed a number of amici curiae. In doing so the Trial Chamber noted the requirement in Article 20 of the ICTY Statute that a trial be fair and be conducted with full respect for the rights of the accused. MilobeviC had insisted upon representing himself and the Court wanted to ensure that it would receive submissions relevant to his defence.IR3 B. Nature of amici curiae in ICTYandICTRproceedings In the MiloSeviC proceedings the ICTY used amici curiae extensively. In doing so, it addressed issues such as the circumstances in which it is appropriate to appoint amici, and the nature, functions and responsibility of the amici. We turn now to examine the relevant decisions in the MiloSeviC and some other proceedings. Blurring the line between party and amicus curiae? ICTY decisions, particularly in MiloSeviC, have blurred the line between parties and amici curiae.IR4The Tribunal has made a number of decisions giving the amici legal capacity very similar to that of the parties, but without explaining in detail the basis of its power to do so. On 20 January 2004, in the MiloSeviC proceedings, the Appeals Chamber delivered its decision on the interlocutory appeal by the amici curiae against the Trial Chamber order concerning the presentation and preparation of the defence case.IR5Before the Trial Chamber, the then lead amicus curiae, Stephen Kay, had made a number of submissions about the appropriate length of time for the accused to prepare and present his defence. The amici then appealed the subsequent Trial Chamber decision. This decision illuminates some aspects of the legal nature of the amicus curiae before the ICTY. The Appeals Chamber expressly stated that the amici were not a party for the purposes of Rule 73, which concerns the right of a party to appeal a decision of the Trial
Prosecutor V. Miloievii, Order on application tofile an amicus curiae brief, case No. IT-02-54-T, 28 January 2002. Ia3 See Prosecutor v. Milorievii, Order Inviting Designation ofAmicus Curiae, Trial Chamber, case No. IT-02-54-T, 3 1 August 2001. The Tribunal had, however, made clear that "an amicus curiae be appointed . . .not to represent the accused but to assist [the Tribunal] in the proper determination ofthe ease". The accused has a right to self-representation; see Article 14(3)(d) of the International Covenant on Civil and Political Rights. See further Jsrgensen, "The Right of the Accused to Self-Representation before International Criminal Tribunals",American Journal oflnternational Law, Vol. 98,2004, pp. 71 1-726. Ia4 This paper has already noted that States participating in ICTY Rule 10 deferral proceedings do so virtually as a party: see text accompanying note 161. Ia5 Prosecutor V. Miloievii., Decision on the interlocutory appeal by the amici curiae against the Trial Chamber Order concerning the presentation and preparation of the defence case, case No. IT-02-54-AR73.6,20 January 2004.
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Chamber.lX6The Appeals Chamber added: "The fact that the amici were instructed by the Trial Chamber to take all steps they consider appropriate to safeguard a fair trial for the Accused does not alter this conclusion." Notwithstanding this result, the Appeals Chamber heard the appeal, considering (by a majority) that the amici b request
was aligned with the accused's interest: that the prosecution was willing to accept the amici as a party for these purposes; and that the interests ofjustice were served by con-
sideration of the appeal. The Appeals Chamber did not identify the legal source of its power so to decide, notwithstanding its conclusion that an amicus curiae was not a party for the purposes of Rule 73. Nor did the Appeals Chamber consider its statement in Opacic in 1997 that amici curiae are not parties and therefore do not, for instance, have the right to appeal against decisions given by a Trial Chamber.Ix7In fact the Appeals Chamber treated the amicus curiae as it would any other appellant. For example, it held that the amici bore "the burden of demonstrating that the Trial Chamber has erred in the exercise of its d i s c r e t i ~ n " . ~ ~ ~ Judge Shahabuddeen agreed in the result (that is, dismissal of the appeal) but expanded on the "more fundamental fact that the interlocutory appeal has not been brought by a 'party' within the meaning of Rule 73(A) of the Rules of Procedure and Evidence of the Tribunal." In his separate opinion he examined closely whether the Court was competent to hear an appeal from the amici:
(a) Whether the amici curiae are aparty 4. The name of the interlocutory appeal, as given on the cover page of the appeal, is "Interlocutory Appeal by the Amici Curiae. . . ". Nothing to the contrary appearing in the text, the interlocutory appeal is an appcal brought by the amici curiae. 5. Thc question, therefore, is whether an amicus is a party and so competent to bring the appeal. There could bc argumcnt as to what is a party; but it is not ncccssary to dcbatc that point. Howcvcr widc may be that term, it clearly does not include an amicus. Paragraph 4 of today's dccision correctly recognises that, "[nlot being a party to the proceedings, the amici are not entitled to use Rule 73 to bring an intcrlocutory appeal." That paragraph rightly adds that the "fact that the amici were instructed by the Trial Chamber to take all steps they consider appropriate to safeguard a fair trial for the Accused docs not alter this conclusion."
l a b Ibid., $4. ICTY Rule 73(A) provides: 'After a case is assigned to a Trial Chamber, citherparty may at any time move before the Chamber by way of motion, not being a preliminary motion, for appropriate ruling or relief. . .'Rule 73(C) provides, relevantly, that '. . . If certification [to file an interlocutory appeal] is given [by the Trial Chamber], aparty shall appeal to the Appeals Chamber within seven days of the filing of the decision to certify.' (Emphasis added) In the case ofDragan Opacic: Decision on Application for Leave to Appeal, Appeals Chamber, casc No. IT-95-7-Misc.1, 3 June 1997, 5§5 - 6 , the Appeals Chamber said: "The detained witness, Dragan Opacic, who has not bccn indictcd, bcing ncithcr thc Prosecutor nor thc accuscd, is thcrcforc not a party. Accordingly he has no standing to invoke Rule 72. . . . If this vicw of the matter appears overly legalistic, any other ruling would open up the Tribunal's appeals procedures to non-parties - witnesses, counsel, amicus curiae, even members of the public who might nurse a grievance against a Decision of the Trial Chamber. This could not be. The Tribunal has a limited appellate jurisdiction which categorically cannot be invoked by non-parties." I a 8 Prosecutor V. Milofevii: Decision on the interlocutory appeal by the amici curiae against the Trial Chamber Order concerning the presentation andpreparation ofthe defence case, cited at note 185,g 18. See also $7, notcs 15 and 16.
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6. Paragraph 5 of today's decision notes that "the Prosecution represented to the Trial Chamber its willingness to accept the amici as a party . . .". It suffices to observe that the Tribunal is a criminal court. The jurisdiction of the Appeals Chamber cannot be expanded by consent. The Prosecution cannot by consent make the amici a party. Despite the Prosecution's concession, the amici remain a non-party.la9
Judge Shahabuddeen also considered the nature of the relationship between the accused and the amici curiae in the current context: 12. Has the appeal been brought by the amici curiae acting as counsel for the accused? This question may be examined under these two heads: (i) Were the amicr capable in law of acting as counsel for the accused? (ii) If they were capable in law of acting as counsel for the accused, did he authorise them to act as his counsel? 13. As to (i), it does not appear that the amici curiae were capable in law of acting as counsel for the accused. This is shown by Rule 74 of the Rules of Procedure and Evidence of the Tribunal, under which the amici curiae were appointed. This Rule provides that a "Chamber may, if it considers it desirablefor the proper determination ofthe case, invite or grant leave to a State, organization or person to appear before it and make submissions on any issue specified by the Chamber." Clearly, where counsel appears, he is not acting as counsel for the accused. 14. To the extent that amici curiae could historically be appointed to "represent the unrepresented," that aspect of the character of an amicus has now been overtaken by separate provisions and a separate procedure under which the Tribunal can assign counsel to give legal assistance to an indigent accused, ifhe desires it. The difference was acknowledged in the first amicus curiae order, made by the Trial Chamber on 30 August 2001, which stated that the Chamber considered it desirable to appoint amici curiae "not to represent the accused but to assist in the proper determination of the case, and pursuant to Rule 74." In my view, the principle of that prohibition has been retained in subsequent orders - including an order of 11 January 2002 -made by the Trial Chamber on the subject. 15. In sum, although the institution of amicus curiae has broadened out in some jurisdictions, shifting from its traditional role as friend of the court to advocate for an interested body other than an existing party, in my opinion, in the Tribunal, an amicus curiae is limited to his essential function as a friend of the court, as distinguished from being a friend of the accused. More pertinently, under the system of the Tribunal, he is not legally competent to act as counsel for the accused, and he certainly is not an
On 5 February 2004, an ICTY Trial Chamber applied the Appeal Chamber's decision of 20 January 2004 to the question of whether the amici curiae could file a motion for judgment of acquittal pursuant to Rule 98bis of the ICTY Rules.lglOn 27 June 2003, the Trial Chamber had held that the amici curiae could file such a rn0ti0n.l~~ At the time of the Trial Chamber's decision, Rule 98bis provided: (A) An accused may file a motion for the entry ofjudgement of acquittal on one or more offences charged in the indictment within seven days after the close ofthe Prosecutor's case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85 (A)@).
Ibid., 9 5 4 4 . Ibid., $5 12-15. Footnotes omitted. Prosecutor v. Miloievib, Decision on Prosecution $ Motion under Rule 73(A) for a Ruling on the Competence of the Amici Curiae to Present a Motion forJudgement ofAcquitta1 Under Rule 98bis, case No. IT-02-54-T, 5 February 2004. 19' Prosecutor v. Miloievic, Order on Amici Curiae Request Concerning the Manner of their Future Engagement and Procedural Directions Under Rule 98his, case No. IT-02-54-T, 27 June 2003. Ia9
lW
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(B) The Trial Chamber shall order the entry ofjudgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges.
It is difficult to support the Trial Chamber's judgment on a literal reading of the rule. Only the accused has the power to file a motion. It is one thing to treat an amicus curiae as a "party" within t h e terms of ICTY R u l e 73 yet another one to treat the amicus curiae as the 'accused' within the meaning of ICTY Rule 98bis.I y 3 Following the Appeal Chamber's decision of 20 January 2004, the prosecution sought reconsideration of the Trial Chamber's order of 27 June 2003, primarily on the basis of comments by Judge Shahabuddeen in his separate opinion. The Trial Chamber dismissed the prosecution's motion to reconsider its order. It considered that "the Appeals Chamber itself in that case decided to consider the appeal brought by the Amici Curiae, and in so doing proceeded on the basis they had locus stand?'. Further the Trial Chamber applied factors similar to those referred to by the Appeals Chamber in its 20 January 2004 decision. It considered that the filing by the amici curiae of the motion "does not in any way prejudice the Prosecution, does not infringe the interests of the Accused, and that it is in the interests of justice as a whole for the Motion to be brought".lY4 The ICTY Rules have been amended several times since the Appeals Chamber decided, unanimously, that an amicus curiae was not a "party" within the terms of Rule 73.i95Rule 98bis has been amended so that the question decided by the Trial Chamber in relation to amicus motions can no longer arise. Oddly, Rule 73 has not yet been amended so as to reflect the Appeal Chamber decision of 20 January 2004. Further blurring the line in practice between amici curiae and parties, following the Trial Chamber's request on 2 September 2004, one of MiloSevic's amici curiae, Stephen Kay, agreed to be appointed as court-assigned counsel for the accused.196 The ICTY decision of 20 January 2004 in MiloSeviC indicates (a) that the role of an amicus curiae sometimes resembles that of a party; and (b) that the legal nature of the amicus curiae is not at all as clear as that of a "party" and is still in the course of development. While the distinction between a party and an amicus curiae may not be clear in practice in the ICTY, the ICTR distinguished between the two when it held that an amicus could not present the evidence of witnesses and that could be done only through the prosecution or the defence.197 '93 Since its amendment on 8 December 2004, ICTY Rule 98bis avoids difficulties of interpretation by dispensing with motions to enter a judgment of acquittal. Since its last amendment, ICTY Rule 98his ('Judgment ofAcquittal') has provided: "At the close of the Prosecutor's case, the Trial Chamber shall, by oral decision and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction." I y 4 Pmsecutor V. MiloSeviC, Decision on Prosecution k Motion under Rule 73(A) for a Ruling on the Competence ofthe Amici Curiae to Present a Motion for Judgement ofAcquittal under Rule 98his, cited at note 191. lY5 Revision 30,12 April 2004; Revision 32,12 August 2004; and Revision 33,8 December 2004. 196 For an account of the procedural history of appointment of court-assigned counsel, see Prosecutor v. MiloSevii, Decision on Assigned Counsel's Motion for Withdrawal, case No. IT-02-54-T, 7 December 2004, 5 1 . 19' Prosecutor v. Bagosora. Decision on the Amicus Curiae Application by the Government of the Kingdom ofBelgium, case No. ICTR-96-7-T, 6 June 1998.
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The Milos'evid proceedings perhaps suggest that amici curiae should have such legal procedural capacity before a court or tribunal as may be necessary for the exercise of the latter's functions and for fulfilment of the purposes for which it was appointed. It goes without saying that their functions and purposes are to assist in the adrninistration of justice. Consideration of the practice of the ICTY and the ICTR indicates that these functions and purposes can vary considerably. The ICTY has been prepared to overlook procedural difficulties in what it considers to be the interests ofjustice.
Impartiality of the amicus curiae While the ICTR held that an amicus curiae is not required to be completely impartial, the ICTY indicated that there were limits, even if the amicus was presenting arguments relevant to the defence of the accused. In the Bagosora case before the ICTR, the Belgian Government requested, and was granted permission, to appear as an The defence contended that the Belgian Government's appearance to make submissions on questions of law "would create an unacceptable disequilibrium in the proceedings in favor of the Prosecutor, as the Belgian Government could not be considered a neutral party." The Tribunal commented that "the general definition of amicus curiae does not call for impartiality on the part of the filing party. Rather it takes into consideration that such briefs are filed by a party, not a part of the action, but one with strong interests in or views on the subject matter before the court." In October 2002, one amicus curiae (Mr Wladimiroff) was removed by the Trial Chamber from the MiloSevic proceedings following interviews given by him to European newspapers in the previous month where he reportedly said that the possibility that MiloSeviC. would be found innocent on all charges by the ICTY was "insignificantly At the time evidence had not been adduced in relation to a number of charges. The Trial Chamber held that, even considering the amicus curiae's explanations, the statements raised "serious questions about the appropriateness of his continuing as amicus curiae." It added that "he appears to have formed a view of the case unfavourable to the accused"and was particularly concerned about his view that MiloieviC must be convicted of, at least, some of the charges. The Trial Chamber said that the statements taken as a whole gave rise to a "reasonable perception of bias on the part of the amicus curiae" and concluded: Implicit in the concept of an amicus curiae is the trust that the court reposes in "the fiiend to act fairly in thc pcrformancc of his dutics. In thc circumstanccs,thc Chambcr cannot bc confidcnt that thc amicus curiae will discharge his duties (which include bringing to its attention any defences open to the accused) with the required impartiality. Notably, the ICTY has also asked applicants for leave to make amicus submissions to identify and explain any contact or relationship they had with any party to the case.2w
'91 Prosecutor V. Bagosora, Decision on the Amicus Curiae Application by the Government o f the Kingdom ofBelgium, case No. ICTR-96-7-T, 6 June 1998. 199 Prosecutor v. Miloievii., Decision Concerning an Amicus Curiae, case No. IT-02-54-T, 10 October 2002. 2W See Information Concerning the Submission ofAmicus Curiae Briefs, IT11 22,22 March 1997.
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Continuing control over the amicus By giving a specific mandate to the amicus curiae, the ICTY has retained control over the amici even after appointment. For example, on 26 October 2004, the Trial Chamber refused, for the time being, a request by the then only remaining amicus, Tim
MacCormack, to be allowed to submit observations on some relevant aspects of international criminal law.zo1 Form and content of amicusparticipation In 1997 the ICTY issued Information Concerning the Submission of Amicus Curiae Briefs in which it elaborated on the form of an application to participate as amicus.202 The applicant was required to state: its interest in the case; the issues it seeks to address; the nature of the information or analysis it proposes to submit; its qualifications; the reasons for believing that its submission would aid in the proper determination of the case or issue; and a statement identifying and explaining any contact or relationship the applicant had, or has, with any party to the case. C. Concluding remarks ICTY and ICTR have a rich amicus curiae practice that will no doubt inform the practice of the ICC. Because of this rich practice, these Tribunals have had more occasion to elaborate on the juridical nature and appropriate role of amici than most of the other international courts and tribunals referred to in this paper. 4.3 Special Courtfor Sierra Leone The Special Court for Sierra Leone (SCSL) was established on 16 January 2002 under an agreement between the United Nations and Sierra Leone.*03It has power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.204Under its rules it has explicit power to appoint amici curiae. Rule 74 of the SCSL Rules of Procedure and Evidence, which contains insubstantial differences from the equivalent ICTY and ICTR Rule, provides: A Charnbcr may, if it considers it dcsirablc for thc propcr dctcrmination of thc casc, invitc or grant lcavc to any State, organization or person to make submissions on any issue specified by the
Notably, the SCSL has used its power under this rule in proceedings involving its highest-profile indictee, Charles Ghankay Taylor, the Former President of Liberia. Taylor Prosecutor v. Miloievit, Order on Amici Curiae observations on relevant issues of international law, Trial Chamber, case No. IT-02-5&T, 26 October 2004. The mandate of this amicus was stated in Prosecutor v. Miloievit, Order appointing amicus curiae, Trial Chamber, case No. IT-02-54--T, 22 November 2002. '02 Information Concerning the Submission ofAmicus Curiae Briefs, IT/122,22 March 1997. 203 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002 ("the Agreement"). Documents and cases referred to in this section are available through the SCSL's official website: http://www.sc-sl,org/index.html. 2" Statute of the Special Court for Sierra Leone, Annex to the Agreement, cited at note 203. 205 SCSL, Rulcs of Proccdurc and Evidcncc, adoptcd 16 January 2002, as amcndcd to 14 May 2005.
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applied to the SCSL to quash the Court's indictment against him and to set aside the warrant for his arrest on the grounds that he was immune from any exercise of the Court's jurisdiction.206 In the course of deciding this application, "in view of the significance of the international law issues", the Court invited two law professors to make written and oral submissions as amici: Diane Orentlicher and Philippe Sands, QC. Professor Sands made submissions about a head of state's immunity from indictments of international or national courts; on whether the SCSL was an international court; on whether it was lawful for the SCSL to issue the indictment and circulate the arrest warrant while Taylor was a serving head of State; and on the effect of Taylor's subsequent status as a former head of State. Professor Orentlicher answered two questions: whether the indictment was invalid because it violated the procedural immunities accorded serving heads of State under international law; and whether Taylor had substantive immunity as a former head of state from prosecution for the specific crimes The Court referred in detail to these professors' amicus briefs. The Court explicitly adopted Professor Sands' conclusions (which it described as "not difficult to accept") that the Court was an international court "with all that implies for the question of immunity of a serving head of StateW.20* The African Bar Association also submitted an amicus brief almost one month after the hearing, just before the deadline for the parties' final submissions.209The Court accepted the brief, without giving reasons, but in its judgment only referred to its contents very briefly.210 Together with the ICTY's practice in Tadic' and BlaSkiC, the SCSL's practice in Taylor confirms that international criminal tribunals are inclined to welcome amicus participation to help them decide important issues of general international law, especially where high-profile indictees are concerned.
5. World Trade Organization, Dispute Settlement Body Amici curiae have participated in proceedings of the Appellate Body and panels of the Dispute Settlement Body (DSB) of the World Trade Organization (WTO). Of all the courts and tribunals discussed in this paper, the participation of amici curiae in the WTO dispute settlement mechanism has been the most controversial and sensitive. As New Zealand said in one WTO debate about amicus curiae participation: "the most sensitive issue among the membership related to issues regarding access to and
206 Prosecutor V. Charles Ghankay Taylor, case No. SCSL-200341-1, Decision on lmmunityfrorn Jurisdiction, 3 1 May 2004 (Justices Aywla, King and Winter) ("Taylor"). 207 Taylor, cited at note 206, $5 17, 18. 208 Taylor, cited at note 206, $41. See also $51, where the Court explicitly referred to Professor Orentlicher's brief in support of its conclusions. 209 Taylor, cited at note 206, at pp. 3 and 4. *I0 Taylor, cited at note 206, $ 19.
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participation of non-Members in both the negotiation of commitments and in dispute settlement in relation to such ~ornmitments."~~~ Participation of amici curiae in WTO dispute settlement proceedings has found explicit support from an American President, from NGOs and from some anti-global-
isation protesters; and it has received condemnation from many States. The WTO dispute settlement system, contained in the Dispute Settlement Understanding @SU)212is a compulsory mechanism for resolution of disputes under WTO and GATT agreements. The WTO dispute settlement system is "a central element in providing security and predictability to the multilateral trading system".213 When a dispute is submitted to the WTO, it is first considered by a panel. Appeals against reports of a panel are heard by the Appellate Body. The DSB, a political body composed of WTO Member States, adopts reports of panels and the Appellate Body by a system of negative consensus, that is, a report is adopted automatically unless WTO members decide by consensus to block it.214While this system makes it highly unlikely that reports are rejected, Members are permitted This means that, of all the courts and tribunals disto express views on the reports.215 cussed in this paper, it is easiest to gauge State's views of amicus curiae participation in the context of WTO proceedings. Some of these views are applicable beyond the context of WTO participation and will be referred to in Part I11 (General Conclusions). At the outset the WTO dispute settlement mechanism did not take amicus briefs into consideration, following the practice from the time of GATT.216Apparently, proposals for amicus participation had been made, negotiated and rejected during the Uruguay Round and did not produce any consensus results when reiterated by a few Members during the DSU review.217On 15 May 1998, a panel in ShrimpdTurtles received from environmental NGOs some amicus briefs that it had not requested. Relying on a literal reading ofArticle 13 of the DSU (Right to seek inf0rmation),2~~ it refused to take into 211
General Council, Minutes of'Meeting held on 22 November 2000, WTIGC/MI60,23 January 2001,
887. 2 1 2 Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, Annex 2, Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU). > I 3 DSU, Art. 3.2. 214 Caflisch, "Cent ans dc reglement pacifique des diffirends intcretatiques", in Collected Courses of the Hague Academy oflnternational Law, The Hague, Martinus Nijhoff, 2001, Vol. 288, pp. 245467, at pp. 366-368. 2 1 1 Under Art. 17.14 of the DSU, "An Appellate Body report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the Appellate Body Report within 30 days following its circulation to the Members. This adoption procedure is without prejudice to the right of Members to express their views on an Appellate Body report". 2'Vtcrn, "L'intervention dans lc contentieux de I'OMC", Revue ginerale de droit internationalpublic, Vol. 107,2003, pp. 257-303, at p. 260. See WTIGCIMI60, cited at note 211, $23 (statement of Hong Kong, China). India, Mexico and Singapore summarized the diplomatic histoly in similar terms: see $$38,50 and 60, respectively.The United States characterized the negotiations differentiy (at $77): "It was a mistake to claim that the negotiating history of the DSU showed any intent to ban amicus submissions. In fact, the United States had at one point sought language to clarify the DSU and make it explicit that such submissions would be permitted, but had become convinced that this was not necessary." 2 I u DSU, Art. 13 provides relevantly: "1. Each pane1 shall have the right to seek information and technical advicc from any individual or body which it dccms appropriate. . . .2. Pancls may scck information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter. . . ."
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account this non-requested information from non-governmental sources because it would be "incompatible with the provisions of the DSU as currently applied". The Panel nevertheless allowed the parties to annex part or all of the NGO briefs to their own submissions, which the United States Three days after the Panel issued its report in Shrimps/Turtles, US President Clinton said in a keynote address of 18 May 1998: "Today, there is no mechanism for private citizens to provide input in these trade disputes. I propose that the WTO provide the opportunity for stakeholders to convey their views, such as the ability to file 'amicus briefs', to help inform the panels in their deliberation^."^^^ Subsequently,as Stem has aptly summarized, the WTO Appellate Body opened the door to amicus briefs, at first slightly in October 1998, resolutely in May 2000, and widely open in November 2000, but without letting anyone in. Subsequently, in May 2002, the Appellate Body pushed open a new door.22' In Shrimps/Turtles the Appellate Body slightly opened the door to amicus briefs by rejecting the Panel's interpretation ofArticle 13 of the DSU, stating that: In the present context, authority to seekinfomation is not properly equated with aprohibition on accepting informationwhich has been submitted without having been requested by a panel. A panel has the discretionary authority either to accept and consider or to reject information and advice submitted to it, whether requested by apanel or not."
Prior to opening that door the Appellate Body confirmed the nature of access to WTO proceedings: "access to the dispute settlement process of the WTO is limited to members of the WTO. This access is not available, under the WTOAgreement and the covered agreements as they currently exist, to individuals or international organizations, whether governmental or non-g0vernmental."~*3 The Appellate Body then went on to admit three amicus curiaebriefs annexed to the appellant's submission. It concluded that those briefs formed part of the appellant's submission and observed that it was for a participant in appeal proceedings to determine for itself what to include in its submission.224 It also took into consideration one amicus brief that had not been annexed to a party's submissions, but without explaining the legal basis for doing so.225 On 6 November 1998 the DSB considered the Panel and Appellate Body reports in Shrimp~/Turtles.~~~ Overall, WTO Members reacted negatively to the Appellate Body's 2L9 United States - Import Prohibition of Certain Shrimp and Shrimp Products, Report o f the Panel, WT/DS58/R, 15 May 1998, $7.8. 220 Statement by H.E. M,: W7llium J. Clinton in Geneva on the occasion of the 50th Anniversury of GATT/WTO, WORLD TRADE WT/FIFTY/WST/8,18May 1998. 22' Stem, cited at note 216, pp. 264274. 222 United S t a t e s Import Prohibition of Certain Shrimp and Shrimp Products, Report o f the Appellate Body, WT/DS58/AB/R, 12 October 1998, $108. 223 Shrimps/Turtles, Report o f the Appellate Body, cited at note 222, $101. 224 Ibid., $89. 225 Compare Ibid., $83. See Stem, cited at note 216, p. 265. Thailand criticized the Appellate Body's report for this lacuna: see Dispute settlement Body, Minutes of Meeting Held on 6 November 1998, WT/DSB/M/50,14 December 1998, at pp. 2-3. 226 WT/DSB/M/SO,cited at note 225.
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decision that the Panel had power to accept uninvited NGO amicus briefs, even if not attached to a party's submissions. Only the United States and Hong Kong, China spoke in support of this part of the Appellate Body's decision.227 Those Members that reacted negatively advanced a number of reasons. Most
objected to the expansive reading of the Panel's power to "seek" information under Article 13 DSU as including a power to "accept" uninvited submissions. Members expressed the view that, amongst other things, this was contrary to the ordinary meaning of the word "seek" read in the context of the WTO agreement.228Objecting Members were concerned that such a decision could give NGOs and other amici more rights than Members, in contravention of Article 19.2 of the DSU;229that uninvited amicus briefs might overburden the panels and parties;230and that the issue of permitting amicus participation should have been one for the Members as part of the DSU review and not a decision for the Appellate Body.231India and Mexico indicated that they were opposed in principle to NGO participation in WTO proceedings.232 The Appellate Body also enunciated its authority to accept amicus curiae briefs in May 2000 in Lead and Bismuth II: In considering this matter, we first note that nothing in the DSU or the Working Procedures specifically provides that the Appellate Body may accept and consider submissions or briefs from sources other than the participants and third participants in an appeal. On the other hand, neither the DSU nor the Working Procedures explicitly prohibit[s] acceptance or consideration of such briefs. . . . [Article 17.9233]makes clear that the Appellate Body has broad authority to adopt procedural rules which do not conflict with any rules and procedures in the DSU or the covered agreements. Therefore, we are of the opinion that as long as wc act consistcntly with thc provisions of thc DSU and thc covcrcd agrccmcnts, wc havc thc lcgal authority to decide whether or not to accept and consider any information that wc believe is pertinent and useful in an appeaL214
227 While the United States' support was strong, Hong Kong, China was lukewarm: see ibid., pp. 11 and 16. 22R Ibid.: Thailand, pp. 2-3; Pakistan, p. 5; Malaysia, p. 7; India, p. 7; Brazil, p. 12; and Japan, p. 17. 229 Ibid.: Thailand, p. 3; Pakistan, p. 5; Malaysia; India, p. 10; Brazil, p. 13; and Japan, p. 17. DSU, Art. 19.2 states: "In accordance with paragraph 2 of Article 3, in their findings and recommendations, the panel and Appellate Body cannot add to or diminish thc rights and obligations provided in the covered agreements." 230 [bid.: Brazil, p. 12; Japan, pp. 1 6 1 7 . See also Hong Kong, China, p. 16. 231 Ibid.: Thailand, p. 2; Brazil, p. 13. See also Hong Kong, China, p. 16. 232 Ibid., p. 10 (India: "With regard to amicus briefs, the Appellate Body had appeared to havc let itself to be overawed by the campaign of NGOs of major trading entities. India had consistently maintained that NGOs had a useful role to play in their respective countries but in the WTO, which was charactcrised by a contractual relationship between governments,NGOs could not have a direct role"); and p. 14 (Mexico: "The Appcllatc Body's findings . . . that non-rcqucstcd information might bc includcd in thc disputc . . .pavcd thc way for diverse groups not related to the WTO to become active participants in proceedings, with the result that cases would be discussed at a political level at the expense of argumentation of a legal nature.") '33 DSU, Art. 17.9 provides: (Procedures for Appellate Review) "Working procedures shall be drawn up by the Appellate Body in consultation with the Chairman of the DSB and the Director-General, and communicated to the Members for their information." 234 United S t a t e s Imposition o f Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, Report of the Appellate Body, WTDS 138/AB/R, 10 May 2000, $39.
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In Lead and Bismuth I1 the Appellate Body "drew a distinction between, on the one hand, parties and third parties to a dispute, which have a legal right to participate in panel and Appellate Body proceedings, and, on the other hand, private individuals and organizations, which are not Members of the WTO, and which, therefore, do not have a legal right to participate in dispute settlement proceedings."235The Appellate Body said: We wish to emphasize that in the dispute settlement system of the WTO, the DSU envisagesparticipation in panel or Appellate Body proceedings, as a matter of legal right, onlyby parties and third parties to a dispute. And, under the DSU, only Members of the WTO have a legal right to participate as parties or third parties in a particular dispute. . . . Individuals and organizations, which are not Members ofthe WTO, have no legal - right - to make submissions to or to be heard by the Appellate Body. The Appellate Body has no legal duty to accept or consider unsolicited amicus curiae briefs submitted by individuals or organizations, not Members of the WTO. The Appellate Body has a legal duty to accept and consider only submissions from WTO Members which are parties or third parties in a particular
Ultimately, in rendering its decision, the Appellate Body did not find it necessary to take into account the two amicus briefs which had been filed by American industry
association^.^'^ WTO Members once again criticized the Appellate Body's decision in relation to amicus participation. At the DSB meeting to consider the Appellate Body's report in Lead and Bismuth 11,14 of the 16 Members that spoke criticized the decision in some way, one (Australia) did not express a view about the decision but suggested that the Members ought to discuss the issue, and just one, the United States, gave unqualified Many Members questioned whether the "general authority under Article 17.9 of the DSU to draw up working procedures provided a sufficient legal basis for the Appellate Body to accept and consider amicus curiae briefs."239Anumber of Members reiterated that the issue of whether amicus curiae briefs should be permitted and, if so, under what conditions, was of such critical and systemic concem that the Members, and only the Members, should address the issue and clarify the DSU rules.240 Ecuador expressed a policy concem about the particular effect on the developing world of amicus curiae participation in WTO proceedings: The Appellate Body's decision was not only inconsistent with the DSU but also ran a risk of causing damage to developing countries, in particular to those that had limited resources to participate actively in the DSB's proceedings. In Ecuador's view, the difficult situation of developing countries would further
23s European Communities - Trade Description of Sardines, Report of the Appellate Body, WTIDS231IABIR, 26 September 2002, $1 58. 236 Lead and Bismuth II, cited at note 234,$$ 4 M 1 . 237 Ibid., 842. 238 Dispute Settlement Body, Minutes ofMeeting held on 7 June 2000, WT/DSB/MW3,7 July 2000. 239 Ibid.: Canada at 4. See also Japan at 4; Argentina at 4; Hong Kong, China at 5; India at 6; and Pakistan at 7-8. 240 Ibid.: Canada at 4; Japan at 4; Hungary at 5; and the Philippines at 6.
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deteriorate if their scarce resources were to be spent to examine and react to amicus curiae briefs that the Appellate Body considered to be relevant to an appeal, even when such briefs were un~olicited.~~'
Perhaps reacting to the criticism of some Members that the Appellate Body in Lead and Bismuth II had not provided guidance for the participation of amici curiae,242the Appellate Body elaborated guidelines during proceedings in late 2000 in Asbestos.243 In the Asbestos proceedings, the Panel had received five written submissions from NGOS, two of which it took into account. The Appellate Body consulted the parties and third parties about a possible ad hoc procedure to manage anticipated non-party submissions on appeal. Canada, European Communities and Brazil considered that issues pertaining to any such procedure should be dealt with by the WTO Members themselves. The US welcomed adoption of a request for leave procedure, and Zimbabwe did not oppose its adoption. Without prejudice to their positions, Canada, the EC and the US each made a number of suggestions regarding any such procedure that might be adopted.244 Following these consultations, on 7 November 2000, the Appellate Body adopted an "additional procedure to deal with written submissions received from non-parties" (the ad hoc procedure). The same day the procedure was communicated to the parties and third parties in the appeal. The next day the Appellate Body Chairman informed the DSB Chairman of the additional procedure adopted, and his letter was circulated, for information, as a dispute settlement document to the WTO Members.245In that communication, the Chairman of the Appellate Body stressed: . . . This additional procedure has been adopted by the Division hearing this appeal for the purposes of this appeal only pursuant to Rule 16(1) of the WorkingProcedures for Appellate Review, and is not a new working procedure drawn up by the Appellate Body pursuant to paragraph 9 of Article 17 of the Understanding on Rules and Procedures Governing the Settlement of dispute^.'^^ The ad hoc procedure was posted on the WTO website on 8 November 2000 and emailed to subscribers to the WTO's NGO Bulletin. The adoption and publication of the ad hoc procedure caused a stir among WTO Members, which will be discussed below. But first the procedure that caused the controversy should be described. Amongst the amicus procedures adopted by international courts and tribunals, the ad hoc procedure is perhaps the most detailed as to the nature, form and content of amiit is worth setting it out in hll: cus parti~ipation.~~~Accordingly,
Ibid., $25. Ibid.: European Communities, p. 6; Canada, p. 4; Hungary, p. 5. European Communities - Measures AjJecting Asbestos and Asbestos-Containing Products, Communication from the Appellate Body, WTDS135/9,8 November 2000. 2M European Communities Measures Affecting Asbestos andAsbestos-Containing Products, Report of the Appellate Body, WTDS 135/ABIR, 12 March 2001, $50. 245 WTDS13519, cited at note 243. 246 Quotcd in Asbestos, citcd at notc 244, $5 1. 247 Thc ICTY and NAFTA Free Trade Commission have also issued relatively detailed guidelines for amicus participation. See Part 11, Chapters 4 and 6, respectively. 24'
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1. In the interestsof fairnessand orderly procedure in the conduct of this appeal, the Division hearing this appeal has decided to adopt, pursuant to Rule 16(1) of the WorkingProceduresforAppellate Review, and after consultations with the parties and thud parties to this dispute, the following additional procedure for purposes of this appeal only. 2. Any person, whether natural or legal, other than a party or a third party to this dispute, wishing to file a written briefwith the Appellate Body, must apply for leave to file such a brief from the Appellate Body by noon on Thursday, 16 November 2000. 3. An application for leave to file such a written brief shall: (a) be made in writing, be dated and signed by the applicant, and include the address and other contact details of the applicant; (b) bc in no casc longcr than thrcc typcd pagcs; (c) contain a description of the applicant, including a statement of the membership and legal status of the applicant,the general objectivespursued by the applicant, the nature ofthe activities of the applicant, and the sources of financing of the applicant; (d) specify the nature of the interest the applicant has in this appeal; (e) identify the specific issues of law covered in the Panel Report and legal interpretations developed by the Panel that are the subject of this appeal, as set forth in the Notice ofAppeal (WT/DS135/8) dated 23 October 2000, which the applicant intends to address in its written brief; (f) statc why it would bc dcsirablc, in thc intcrcsts of achicving a satisfactoryscnlcmcnt of thc matter at issue, in accordance with the rights and obligations of WTO Members under the DSU and the other covered agreements, for the Appellate Body to grant the applicant leave to file a written brief in this appeal; and indicate, in particular, in what way the applicant will make a contribution to the resolution of this dispute that is not likely to be repetitive of what has been already submitted by a party or third party to this dispute; and (g) contain a statement disclosingwhether the applicanthas any relationship,direct or indirect,with any party or any third party to this dispute, as well as whether it has, or will, receive any assistance, financial or otherwise, from a party or a third party to this disputc in the preparation of its application for leave or its written brief. 4. The Appellate Body will review and consider each application for leave to file a written brief and will, without delay, render a decision whether to grant or deny such leave. 5. The grant of leave to file a brief by the Appellate Body does not imply that the Appellate Body will address, in its Report, the legal arguments made in such a brief. 6. Any person, other than a party or a third party to this dispute, granted leave to file a written briefwith the Appellate Body, must file its brief with the Appellate Body Secretariat by noon on Monday, 27 November 2000. 7 .Awritten brief filed with the Appellate Body by an applicant granted leave to file such a brief shall:
(a) be dated and signed by the person filing the brief; (b) be concise and in no case longer than 20 typed pages, including any appendices; and (c) set out a precise statement, strictly limited to legal arguments, supporting the applicant's legal position on the issues of law or legal interpretationsin the Panel Report with respect to which the applicant has been granted leave to file a written brief. 8. An applicant granted leave shall, in addition to filing its written brief with the Appellate Body Secretariat, also serve a copy of its brief on all the parties and third parties to the dispute by noon on Monday, 27 November 2000. 9 . The parties and the third parties to this dispute will be given a full and adequate opportunity by the Appellate Body to comment on and respond to any written brief filed with the Appellate Body by an applicant granted leave under this procedure?4B
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WT/DS135/9, cited at note 243.
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Several aspects of this procedure deserve comment: the short deadlines; the maximum length of leave requests and briefs; the high threshold for granting leave; the nature of the applicant and its relationship with the parties; the Appellate Body's consideration of the amicus brief; the restriction of the amicus brief to legal arguments; and the right of parties to respond to amicu.g briefs.
Short deadlines. The deadline for filing requests for leave was eight days after the procedure has been posted on the WTO website. Applicants had to be prepared to submit a full written brief 11 days after the deadline for filing a leave request. Although WTO proceedings are conducted according to tight deadlines, as some States commented, these deadlines are too short and NGOs from developing countries are particularly unlikely to submit timely requests.249 Maximum length of leave requests and briefs. Leave requests cannot exceed three pages and full briefs cannot exceed 20 pages. The Appellate Body no doubt imposed such limits so that it could consider the many requests expeditiously. Considering the background information that is required about the applicant (43(c)), an applicant will not have more than two pages to justify its request. Perhaps fortunately for applicants the WTO does not specify the minimum font size and line spacing and maximum margins, unlike some of the US municipal court procedures that perhaps inspired the drafters of the procedure.250 TFtresholdfor granting leave. The threshold fixed by the Appellate Body to grant amicus participation is very high, and perhaps impossibly so. Applicants are asked to indicate how they would make submissions that would not be repetitive of what had been submitted by a party or a third party (43(f)). As India has noted, it is difficult to "understand how any applicant for leave to file could respond to this requirement, unless the applicant had access to submissions of parties or third parties."251And the Appellate Body has refused to accept amicus briefs where applicants have had prior access to a party's submissions.252 Nature of the applicant and its relationship with theparties. The applicant must disclose any relationship with, or assistance from, a party (43(g)). The Appellate Body wishes to determine whether an applicant is likely to be a friend of the court more than just a friend of a party. To be more friend of a party than friend of the court is not necessarily fatal to participation. Presumably, if a party adopts the applicant's submissions, then no application is necessary under the ad hoc procedure. Brazil was "concerned with the notion that panels and the Appellate Body would be deciding who had a right to file written briefs on the basis of the applicant's membership, legal status, objectives, interests, nature of activities, sources of financing, or relationship
249 Compare C m Iglesias, "Las comunicaciones amicus curiae en el Mecanismo dc Solucion de Diferencias de la Organization Mundial del Cornmercio: el asunto amianto", Revista espadol de derecho internacional, Vol. 54,2002, pp. 159-1 79, at p. 169. See, for example, Rules of the Supreme Court of the United States, adopted on 27 January 2003, Rules 33.1 and 37. WTIGCIMI60, cited at note 21 1, $36. >'' Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beamsfrom Poland, Rcport of thc Appcllatc Body, WTiDS 122lABIl7, 12 March 2001, $$62-78.
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with parties or third-parties to the dispute [that is, $3(c), (g)]. lf jurisprudence advanced in this direction, the dispute settlement mechanism could soon be contaminated by political issues that did not belong to the WTO, much less to its dispute settlement mechani~m."~" The Appellate Body5 consideration of the amicus brief: Grant of leave does not imply that the Appellate Body will address, in its Report, the legal arguments made in such a brief ($5). Thus the parties remain in a better position because the report almost invariably addresses all their legal arguments. Restriction of the amicus brief to legal arguments. It is consistent with the Appellate Body's function of determining appeals on issues of law only that amicus briefs are "strictly limited to legal arguments" (§7(c)). Right ofparties to respond to amicus briefs. Consistent with practice in other international courts and tribunals, "parties and the third parties to this dispute will be given a full and adequate opportunity . . . to comment on and respond to any written brief". (§9) This procedure affords the parties some due process. But, as Uruguay, among other States, complained, "this was not possible within the short and mandatory time-limits which the Appellate Body had to meet in its The ad hoc procedure communicated to the DSB Chairman caused a controversy. So much so that, at the request of the Informal Group of Developing Countries, a special meeting of the WTO General was convened to discuss the procedure and the issue of "whether persons or organizations which were not Members of the WTO should have any input into dispute settlement cases." The discussions came at a time when the eight panel proceedings and three appellate proceedings had raised the issue of handling of amicus curiae b r i e f ~ . ~ ~ ~ Atouching f € e r on the issue at a DSB meeting,2s7 WTO Members discussed within the General Council the principles and systemic elements underlying the issue of amicus particupation in light of the Asbestos ad hoc procedure in detail at the General Council extraordinarymeeting on 22 November 2000.258 The record of discussions at the General Council constitutes a rich source of States' views about amicus participation in WTO proceedings. Later, in Part 111 (General Conclusions), this paper will refer to statements by specific States made at this meeting. For present purposes it is sufficient to set out little more than the Chairman's summing up: 114. Second, almost all delegations had made comments on the question of whether the Appellate Body or pancls should rcccivc or solicit amicus bricfs. Thcrc was a broad agrccmcnt that thc rights and obligations under the DSU belonged to WTO Members. It had been repeatedly stated that the WTO was a
253
WTlGClMl60, cited at note 2 11, $46.
254
Ibid., $7. See also $27 (Hong Kong, China), and $100 (Chile).
2's The General Council is the WTO's highest legislative and policy authority in the intervals between Ministerial Conferences and, under Article IX.2 of the Agreement Establishing the WTO, has "the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements." 2s6 Dispute Settlement Body, Minutes of Meeting Held on 17 November 2000, WTlDSBlMl92, 15 January2001, $127. 257 Ibid., pp. 24-26. 258 WT/GC/M/60, cited at note 2 1 1 .
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Member-driven organization. Therefore, most delegations had concluded that since there was no specific provision regarding amicus briefs such briefs should not be accepted. Some delegations were of the vicw that amicus briefs could be used in some cases and there was at lcast one delegation who believed that there was both a legal and a substantive reason to use amicus briefs. There was no agreement on this point. 115. Third, many Members had made reference to the shrimp case and the decision to interpret Articlc
13 o f the DSU in such a way so as to accept am;cus bhcfs. Thc majority o f delegations had statcd that they did not agree with that decision which served as a basis for subsequent decisions on amicus briefs by panels and the Appellate Body. At the same time, at lcast one delegation had stated that there was nothing wrong with that kind of procedure. 116. Fourth, there was the question of whethcr the decision of the Appellate Body in the present case, was of a procedural or a substantive nature. The majority of delegations were of the view that it was a substantive decision, while some delegations believed that this was a procedural one. 117. Fifth, many Members had also made comments on the Secretariat's action to put on the WTO website the communication from the Appellate Body to the Chairman of the DSB. It had bccn statcd that thc Secretariat's action amounted to an invitation, although he was not sure whether it had been meant to bc that in the first place. The point had also been made that there was an inherent discrimination in as much as the communication from the Secretariat had gone out only to those NGOs who subscribed to the WTO system. 118. Finally, many Members had made the point that the issue under discussion was not a transparency issue, but rather a legal issue and concerned the question ofwho should participate in the legal system. 119. He believed that most of the points that he had just outlined had been raised by practically all delegations who had spoken at the present meeting. On this basis, he wished to draw some conclusions. First, he believed that there had been a large sentiment expressed by almost all delegations that there was a need to consider whether it would be possible to put in place clear rules for amicus briefs. Thcrc might not be absolute unanimity on that point, but the majority of delegations had stated that the Appellate Body and the system would benefit from clearer rules. Further consultations would be required on both the substantive content of the rules and what procedure should be used for putting them in place. 120. Sccond, in light of the views expressed and in the absence of clear rules, he bclicvcd that the Appellate Body should exmcise extreme caution in future cases until Members had considered what rules were needed.2sY
Some four months after the General Council's extraordinary meeting to discuss the Asbestos ad hoc procedure, the Appellate Body delivered its report in The Appellate Body received 17 requests to participate pursuant to the ad hoc procedure, all of which were rejected. Six of these requests were rejected because they were received late. The remaining 11 were rejected because of a "failure to comply sufficiently with all the requirements set forth in paragraph 3 of the Additional Proced~re".~~' As Stem has suggested, this was barely an explanation; although the door to amici seemed wide open, this attitude indicates that the impression was mistaken.262Subsequent dismissals of amicus briefs, simply on the basis that the Appellate Body "did not find it necessary" to take them into account, indicate that Stem's assessment remains accurate.263 The timely requests originated from persons and organizations primarily from Western countries. But requests were also made by NGOs from less developed countries such as India. And prior to adoption of the ad hoc procedure WTlGCIMI60, cited atnote 211, §§114-120. WTDS 135/AB/R, cited at note 244. 2b' Ibid., $56. Stem, cited at note 216, at p. 271. Zb3 See, for example, European Communities -Export Subsidies on Sugar, Report of the Appellate Body, WTDS265IABIR, WTIDS266lAB/R, WTIDS283IABIR, 28 April 2005,§9. 259
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the Appellate Body had received requests to accept amicus briefs from NGOs, mainly industry associations, that were predominantly from developing countries, for example, Thailand, Sri Lanka, India, Colombia and In 2002 the Appellate Body faced a novel issue in Sardines: could a WTO member State participate in proceedings as amicus curiae?265The Body decided that such a State could do so. But its rights would be those of other amici curiae and different from those it would have had had it participated pursuant to the DSU as a third-party participant, that is, pursuant to Articles 10.2 and 17.4 of the DSU.266The Appellate Body did not believe that this explicit right of participation accorded to WTO members justified treating them differently from non-WTO Members in the exercise of its authority to receive amicus curiae briefs. In the end the Appellate Body did take into account the amicus brief submitted by Morocco, but only to the extent of certain legal submissions.267 With some prescience, at the November 2000 WTO General Council meeting, Egypt predicted that "while the [Appellate Body] pledged that the [ad hoc] decision was for the purpose of the asbestos appeal only, it introduced an additional procedure which, if allowed to apply, would certainly create pressure for future cases and might Indeed the influence of the WTO's ad hoc in fact set a precedent or jurispr~dence."26~ procedure and related jurisprudence has spread beyond the WTO, as we will see as we turn to examine amicus curiae participation in arbitral proceedings conducted by NAFTA and ICSID tribunals.
2M The Appellate Body described these submissions as follows: "The Appellate Body received 13 written submissions from non-governmental organizations relating to this appeal that were not submitted in accordance with the Additional Procedure. Several of these were received while we were considering the possible adoption of an additionalprocedure. After the adoption of the Additional Procedure, each of these 13 submissions was returned to its sender, along with a letter informing the sender of the procedure adopted by the Division hearing this appeal and a copy of the Additional Procedure. Only one of these associations, the Korea Asbestos Association, subsequently submitted a request for leave in accordance with the Additional Procedure." ($53). The Appellate Body lists the names and countries of each entity that submitted an amicus brief or request at notes 30 to 33 of its report. 265 WTIDS23 IIABR, cited at note 235. 266 DSU, Art. 10.2 provides: "Any Member having a substantial interest in a matter before a panel and having notified its interest to the DSB (referred to in this Understanding as a "third party") shall have an opportunityto be heard by the panel and to make written submissionsto the panel. These submissionsshall also be given to the patties to the dispute and shall be reflected in the panel report." DSU, Art. 17.4 provides: "Only parties to the dispute, not third parties, may appeal a panel report. Third parties which have notified the DSB of a substantialinterest in the matter pursuant to paragraph 2 of Article 10 may make written submissions to, and be given an opportunity to be heard by, the Appellate Body." WT/DS231/AB/R, cited at note 235, $170. WTIGCM60, cited at note 2 11, $20. See also Hong Kong, China, $26.
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6. Amici Curiae and arbitration: NAFTA and ICSID tribunals 6.1 Introduction
This section discusses the role of the amicus curiae in arbitrations conducted by t i bunals under the North American Free Trade Agreement (NAFTA) and through the International Centre for Settlement of Investment Disputes (ICSID). Under Chapter 11 of NAFTA, to which Canada, Mexico and the United States are Parties, arbitral tribunals resolve investor-state disputes. Arbitrations are initiated under either the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL Rules)269or the (Additional Facility) Rules of the International Centre for Settlement of Investment Disputes (ICSID Rules). Even though NAFTA tribunals' jurisdiction is limited, their decisions have wider influence, for example on decisions of ICSLD tribunals, which also determine investor-State disputes but in relation to a far greater number of States than NAFTA.270 6.2 NAFTA In 2001 two NAFTA tribunals issued important decisions about amicus curiae participation in proceedings under the UNCITRAL rules: Methanex C o p v. United and UPS (United Parcel Service ofAmerica Inc.) v. Government of Canada.272 St~tes,2~' Not only did the Tribunals decide that they had power to permit such participation, they set out the factors relevant to exercising such discretion, outlined limits to such participation and also commented on the juridical nature of the amicus in NAFTA proceedings. Following these decisions, in 2003, the Free Trade Commission ("FTC") issued a statement on "non-disputing party participation" in Chapter 11 NAFTA proc e e d i n g ~The . ~ ~statement ~ provides guidance in light of these two decisions. On the basis of these NAFTA materials, in May 2005 an ICSID tribunal decided for the first time that it had power to accept and consider amicus curiae submissions by nonparties to the case.274 269 United Nations Commission on International Trade Law, Arbitration Rules 1976, adopted by the UN General Assembly on 15 December 1976, UN Doc. No. ARES13 1198. 270 AS of 15 December 2002,136 countries had ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. 27' Methanex Corp. v. United States, Decision on Petitionsfrom Third Persons to Intervene us 'Amici Curiae', 15 January 2001 ("Methanex"). NAFTA documents referred to in this section arc available at http:/lwww.state.gov/s/1/c3439.htrn. The Tribunal members were Veeder, Rowley, and Christopher. Following this decision the tribunal made anumber ofdecisions relating to amicus participation. These decisions and rclatcd documents arc not discusscd for rcasons of spacc. Scc furthcr: Stcrn, "L'cntrk dc la sociCtC civile dans l'arbitrage cntre Etat et investisseur", Revue de I 'arbitrage,2002, pp. 329-345; Bjorklund, "Thc Participation of Amicus Curiae in NAFTA Chapter Eleven Cases", 22 March 2002, available at http://www.dfait-maeci.gc.ca~tna-nacldocuments/participate-c.pdf. 272 UPS (United Parcel Service ofAmerica Inc.) v. Government of Canada, Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae, 17 October 2001 ("UPS')). 273 Statement of the Free Trade Commission on non-disputing party participation, 7 October 2003. 274 Aguas Argentinas S.A and Others v. Argentina, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, ICSID casc No. ARB103119, 19 May 2005 ("Aguas").
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Before considering the FTC's statement, this paper considers in detail the tribunals' decisions in Methanex and UPS. Methanex Following petitions from four North American-based NGOs, whose credentials the Tribunal described as "impressive", on 15 January 2001 a NAFTA tribunal issued a Decision on Petitions from Third Persons to Intervene as 'Amici Curiae'.275The participation sought by all the NGOs included the opportunity to review all parties' written pleadings, to attend hearings and to make written and oral submissions.276It was the first time that amici curiae had ever participated in arbitral proceedings under the UNCITRAL Arbitration The Tribunal found that nothing in Chapter 11 of NAFTA or the UNCITRAL Rules expressly permitted, or prohibited, participation of amici curiae in NAFTA proceedi n g ~In. deciding ~ ~ ~ that it had discretion to permit amicus curiae participation in the proceedings before it, the Tribunal relied on its power under Article 1S(1) of the UNCITRAL Rules, which provides: Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate,provided that the parties are treated with equality and that at any stage of the proceedings each patty is given a full opportunity of presenting his case.
The Tribunal referred to the Iran-US Tribunal notes on Article 15(1) of the UNCITRAL Rules and WTO practice, and concluded: For present purposes, the authoritative guide to the exercise of the Iran-US Claim Tribunal's discretion under Article 15(1) and this award demonstrate that the receipt of written submissions from a non-third person does not necessarily offend the philosophy of international arbitration involving States and nonState par tie^."^
The tribunal recognized that amici curiae were not, and could not be, parties to the proceedings and that it had no power to grant amici the same substantive right, status or privileges of disputing parties.280The amicus was not permitted to adduce the evidence of any factual or expert witness. As in WTO proceedings, the Tribunal recognized that a party could adopt a third party's submissions as part of its own and in this case the other party would be obliged to respond to the submissions.281 The Tribunal distinguished amici from experts in the context of NAFTA proceedings: 275 Methanex, cited note 271, $48. The NGOs were: the International Institute for Sustainable Development (IISD); the Communities for a Better Environment (CBE); the Blue Water Network of the Earth Island Institute (EII); and the Center for International Environmental Law. The latter three jointly petitioned the Tribunal. '76 Methanex, cited note 271, 57. 277 Methanex, cited note 271, $13. 27R Methanex, cited note 27 1, $24. 279 Methanex, cited note 271, $32. 280 Methanex, cited note 271, @27,30,33. Methanex, cited note 271, 836.
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Amici are not experts; such persons are advocates (in the non-pejorative sense) and not 'independent' in the sense that they advance a particular case to a trib~nal.'~'
The Tribunal held that it had power to accept written amicus submissions. (Relying on this finding, later in the proceedings, the Tribunal permitted amicus participation in the f o r m o f w r i t t e n briefs f r o m t w o N G O S . ) ~ I t ~rejected ~ t h e petitioners' r e q u e s t t o a t t e n d
oral hearings because, under Article 25(4) of the UNCITRAL Rules, hearings were in camera unless both disputing parties consented and one party had not. The Tribunal also held that it had no power to accede to the third parties' request for access to documents generated within the arbitration. This was a matter for the parties rather than the In setting out the factors relevant to exercise of its discretion to permit amicus curiae participation in the proceedings, the Tribunal referred to public interest in the particular proceedings and public interest in transparency of NAFTA Chapter 11 proceedIn reaching this part of its decision the Tribunal maintained: ings generally.285 This Tribunal can set no legal precedent in general or at all. It has no power to determine for other arbitration tribunals how to interpretArticle 15(1); and in a later arbitration, there may be other circumstances leading that tribunal to exercise its discretion differently. For each arbitration, the decision must bc made by its tribunal in the particular circumstances of that arbitration only.2xb
This statement rather understates the significance of the decision insofar as it determines that a NAFTA tribunal has power under Article 15 of the UNCITRAL Rules to permit amici curiae to participate in NAFTA proceedings. The later decision of another NAFTA tribunal in UPS reinforces this observation, and it is to this case that we turn now. UPS On 17 October 2001, about 10 months after the Methanex decision relating to amici curiae was delivered, another NAFTA tribunal issued its Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae.287 UPS, a US parcel delivery service provider, had submitted claims against Canada that the state-entity Canada Post engaged in anti-competitive practices. A Canadian employees' union, the Canadian Union of Postal Workers (the Union), and a Canadian public interest group, the Council of Canadians (the Council), petitioned the Tribunal, requesting standing as parties the proceedings, or, should that be denied, the right to intervene as amicus curiae but with the full right to present and test any evidence adduced in the proceedings. More specifically, the Union and the Council requested disclosure of documents generated in the arbitration and the right to make submissions 2"
Methanex, cited note 271, 538. See also US submissions about the distinction at 520.
'" See Methanex Corp. v. United States, Order on Amicus,6 April 2004. 2a Methanex, cited note 271, §§42,47.
Methanex, cited note 271, $949, 50. Methanex, cited note 27 1, $5 1. 287 The members of the Tribunal were: Justice Kenneth Keith (Chairman), Dean Ronald A Cass; and L. Yves Forticr CC, QC. 285
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about the place of arbitration, the Tribunal's jurisdiction and the arbitrability of the matters raised by UPS. The disputing parties opposed intervention by the Union and the Council. The Tribunal rejected the Union and Council's application to become parties to the arbitration, stating that Article 1S(1) of the UNCITRAL Rules did not grant it that power. In doing so it distinguished between an amicus curiae and a party: As a procedural provision . . . [Article 15(1)1cannot grant the Tribunal any power to add further disputing parties to the arbitration, nor to accord to persons who are non-parties the substantive status, rights or privileges of a Disputing Party. . . . The Tribunal is required to decide a substantive dispute between the Claimant and the Respondent. The Tribunalhas no mandate to decide any other substantive dispute or any dispute determining the legal rights of third persons. The legal boundaries of the arbitration are set by this essential legal fact. It IS thus selfevident that if the Tribunal cannot directly, without consent, add another person as a party to this dispute or treat a third person as a party to the arbitration or NAFTA, it is equally precluded from achieving this result indirectly by exercising a power over the conduct of the arbitration.Accordingly, in the Tribunal's view, the power under Article 15(1) must be confined to procedural matters. Treating non-parties as Disputing Parties or asNAFTAParties cannot be matters of mere procedure; and such matters cannot fall within Article 15(1) of the UNCITRAL Arbitration Rules.288
The Tribunal followed the decision in Methanex to the effect that Article 15(1) of the UNCITRAL Rules, read in context, conferred power on it to permit amici curiae participation in proceedingsbefore it. It further underlined the differences between an amicus and a party, pointing out in particular that amicus participation "is a matter of [the Tribunal's] power rather than of third party right7'.It also stated that "The rights of the disputing Parties are not altered (although in exercise of their procedural rights they will have the rights to respond to any submission) and the legal nature of the arbitration remains unchanged."289 The Tribunal also set out procedural limits on amici participation that it considered desirable in view of the "requirement of equality and the parties' right to present their cases" under Article 1S(1): The requirement of equality and the parties' right to present their cases do limit the power of the Tribunal to conduct the arbitration in such manner as it considers appropriate. That power is to be used not only to protect those rights of the parties, but also to investigate and determine the matter subject to arbitration in a just, efficient and expeditious manner. The power of the Tribunal to permit amicus submissions is not to be used in a way which is unduly burdensome for the parties or which unnecessarily complicates thc Tribunal proccss. Thc Tribunal cnvisagcs that it will placc limits on thc submissions to bc madc in writing in terms for instance of the length. The third parties would not have the opportunityto call witnesses (given the effect of article 25(4)) with the result that the disputingparties would not face the need to crossexamine them or call contradictory evidence. The parties would also be entitled to have the opportunity to respond to any such submission^.^"
The Tribunal also found relevant to its decision considerations of the public interest in NAFTA proceedings, in particular the proceedings before it, as well as the broader 288 289
290
UPS, cited note 272, 839. UPS, cited note 272, $61. UPS, cited note 272, $69.
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"value of greater transparency for proceedings such as these. Such proceedings are not now, if they ever were, to be equated to the standard run of international commercial arbitration between private parties."2Y1 The Tribunal rejected the Union and Council's request to make submissions about
its jurisdiction and the place of arbitration, primarily on the basis that "the parties are
fully able to present the competing contentions and in significant degree have already
done NAFTA Free Trade Commission statement of 7 October 2003 Following the decisions in Methanex and UPS discussed above, the NAFTA Free Trade Commission produced a statement on 'non-disputing party participation' in NAFTA proceedings.293The Commission comprises cabinet-level representatives of the Parties, Canada, Mexico and the United States, or their designees and ordinarily makes decisions by consensus.294The statement was issued on 7 October 2003 and addresses spontaneous or uninvited submissions. The legal basis for accepting, in principle, such participation is set out in the statement: "no provision of [NAFTA] limits a tribunal's discretion to accept written submissions from a person or entity that is not a disputing party". Participation is limited to a "person of a Party" or a person "that has a significant presence in the territory of a Party", that is, a natural or legal person who is either a national of, or has a significantpresence in, Canada, Mexico or the United States. When exercising its discretion, the tribunal considers, among other things, the extent to which: (a) the non-disputing party submission would assist the Tribunal in the determination of a factual or legal issue related to the arbitrationby bringing a perspective, particular knowledge or insight that is different from that of the disputing parties; (b) the non-disputing party submission would address matters within the scope of the dispute; (c) the non-disputingparty has a significant interest in the arbitration; and (d) there is a public interest in the subject matter of the arbitration.
The tribunal has explicit discretion to permit participation and to address any written submission in the arbitration. Even though disputing parties have the right to respond in writing to amicus curiae submissions, the non-disputing parties have no right of reply. The NAFTA FTC statement is clearly influenced by the WTO ad hoc procedure for participation of amicus curiae adopted in the Asbestos case and discussed earlier. There is a similar two-step process: first persons must file a short (5 page maximum) application to for leave to submit; then if leave is granted, the amicus brief is submitted. The application for leave to submit similarly requires details about the prospective UPS, cited note 272, $70. UPS, cited note 272.87 1. 293 For further discussion of the FTC statement, see: Murphy, "Contemporary Practice of the United States NAFTA Commission Statement on Amicus Curiae Participation in Arbitration", American Journal of International Law, Vol. 98,2004, pp. 84 1-842. 294 NAFTA. Art. 2001. 29'
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participant's affiliation with the disputing parties and its source of funding for the submission. Clearly, NAFTA shares the WTO Appellate Body's concern to verify that the person will be more a friend of the court than a friend of a disputing party. Written submissions are similarly limited to 20 pages. The current procedure only envisages written submissions. This is because under UNCITRAL Rules hearings are in camera unless the disputing parties agree otherwise. To permit amicus participation in the hearing would require a change to UNCITRAL Rules or the parties' consent. As we shall see shortly, faced with this limitation in ICSID proceedings, the ICSID Secretariat is considering a change to the relevant ICSID mles. 6.3 ICSID In May 2005 an ICSID tribunal decided for the first time that, in principle, amici curiae could participate in ICSID tribunal proceedings under the ICSID Additional Facility Rules.295Five NGOs applied for leave to be present at the hearings; present legal arguments as amicus curiae, and have access to all of the documents in the case. As the Tribunal recognized, "[tlhe purpose in seeking access to the record is to enable a nonparty to act as amicus curiae in a meaningful way".296The claimant opposed the application but Argentina approved of it. The Tribunal denied the request to attend the hearings because, in the absence of one party's consent, ICSID Rule 32(2) prevented the Tribunal from allowing access.297 The Tribunal defined what it understood to be an amicus curiae as: "a friend of the court recognized in certain legal systems and more recently in a number of international proceedings. In such cases, a nonparty to the dispute, as 'a friend,' offers to provide the court or tribunal its special perspectives, arguments, or expertise on the dispute, usually in the form of a written amicus curiae brief or submission."298It considered that it was in a position similar to that of NAFTA tribunals: there was no provision of the ICSID Convention or relevant mles that expressly authorized or prohibited amicus participation. Article 44 of the ICSID Convention gave the Tribunal similar powers to that of a NAFTA tribunal under Article 15(1) of the UNCITRAL Rules.299Thus, if there were a "procedural question", the Tribunal could decide it. Adopting the NAFTA Tribunal's comments in Methanex about the difference between a party and an amicus curiae, the ICSID Tribunal "unanimously concludes that Article Aguas, cited note 274. The Tribunal consistedof Professors Salacuse,Kaufrnann-Kohler,andNikken. Agguas, cited note 274, $3 1 . The NGOs' petition is available at http://www.ciel.org/Tae/ Suez-ICSID_SFebOS.html. 297 Aguas, cited note 274, $94 7. ICSID Rule 32(2) provides: "The tribunal shall decide, with the consent of the parties, which other persons besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal may attend the hearings." 298 Aguas, cited notc 274, $8. 299 ICSID Convention,Art. 44 provides: "Any arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Arbitration Rules in cffect on the date on which the parties consented to arbitration. If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question." 295
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44 of the ICSID Convention grants it the power to admit amicus curiae submissions from suitable nonparties in appropriate cases."300 The Tribunal decided that, based on a review of amicus practices in other jurisdictions and forums. the conditions for amicus admission: should depend on three basic criteria: a) the appropriateness of the subject matter of the case; b) the suitability of a given nonparty to act as amicus curiae in that case, and c) the procedure by which the amicus submission is made and considered. The Tribunal believes that the judicious application of these criteria will enable it to balance the interests of concerned nondisputant parties to be heard and at the same time protect the substantive and procedural rights of thc disputants to a fair, orderly, and expeditious arbitral process.301
The Tribunal indicated that it was not sufficient that the dispute involved the legality of an action under international law and the international responsibility of a State, for these elements were present in all ICSID investment treaty arbitrations. There had to be something more for the public interest to justify amicus participation. In this case the tribunal identified the additional factor to be considered as follows: The factor that gives this case particular public interest is that the investment dispute centers around the water distribution and sewage systems of a large metropolitan area, the city of Buenos Aires and surrounding municipalities. Those systems provide basic public services to millions of people and as a result may raise a variety of complex public and international law questions, including human rights c~nsiderations.'~~
The Tribunal also saw that there was an interest in transparency: The acceptance of amicus submissions would have the additional desirable consequence of increasing the transparency of investor-slate arbitration. Public acceptance of thc legitimacy of international arbitral processes, particularly when they involve states and matters of public interest, is strengthened by increased openness and increased knowledge as to how these processes function. It is this imperative that has led to increased transparency in the arbitral processes of the World Trade Organization and the North American Free Trade Agreement. Through the participation of appropriate representatives of civil society in appropriate cases, the public will gain increased understanding of ICSlD processes.303
Considering the purpose of an amicus submission, the Tribunal considered that an amicus should demonstrate that it had sufficient expertise and was independent.304The ICSID tribunals' requirements for amicus participation draw on, and substantially reflect those in the FTC statement discussed above. The Tribunal granted the Aguas, cited note 274, $16. Aguas, citcd notc 274, 5 17. Thc Tribunal did not find it ncccssary to claboratc on critcria (h) and (c) at this stage of its proceedings. '02 Aguas, cited note 274, $19. 303 Aguas, cited note 274, 522. 3W Aguas, cited note 274,524: "The purpose of amicus submissions is to help the Tribunal anive at a correct decision by providing it with arguments, expertise, and perspectives that the parties may not have provided. The Tribunal will therefore only accept amicus submissions from persons who establish to the Tribunal's satisfaction that they have the expertise, experience, and independence to be of assistance in this casc." lo'
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petitioners an opportunity to apply for leave to file an amicus brief and deferred their decision about access to documents until an approved non-party applied for such access. Prior to the ICSID tribunal's decision in Aguas, the ICSID Secretariathad been considering possible changes to the ICSID Rules relating to access of nonparties to ICSID proceedings. The issue was first raised in a discussion paper issued in October 2004.305 Most recently, one week before the decision in Aguas, the Secretariat issued a working paper seeking further comments on proposed changes to the rules.306This working paper suggests that "it could be usehl to have hearings open to persons other than those directly involved in the proceeding." The suggested changes to Rule 32 of the ICSID Rules would mean that, to allow non-parties to attend or observe hearings, the tribunal would have to consult the parties but would not require their consent.'07 The working paper also suggests adding a paragraph to ICSID Rule 37 to "make clear that ICSID tribunals may accept and consider written submissions from a non-disputing person or a State, after consulting both parties as far as possible." Unsurprisingly,the criteria for accepting such submissions closely reflect the ICSID decision in Aguas: "The tribunal would have to be satisfied that any such submissions would assist the tribunal in the determination of a factual or legal issue within the scope of the dispute, that the non-disputing party has a significant interest in the dispute and that this would not disrupt the proceeding or unfairly burden either party."308
6.4 Concluding remarks Prior to 2001 amicus participation in international arbitration was unknown. Since then, influenced primarily by developments in the WTO, NAFTA and ICSID tribunals have permitted amicus participation in principle in investor-state disputes. NAFTA tribunals have also allowed amicus participation in practice. It is likely therefore that amicus participation will become more common in international arbitrations involving at least one State, where the public interest is clear and the issues are decided in accordance with a treaty and relevant principles of international law. There will be strong resistance to amicus participation in what one NAFTA tribunal described as the "standard run of international commercial arbitration between private parties",309 where friends of the court are likely to be seen more as "officious intermeddler^".^^^
30* ICSID Secretariat, Possible Improvements of the Framework for ICSID Arbitration, Discussion Paper, 22 October 2004,$6 13-1 5 , available at http:llwww.worldbank.orglicsidiimprove-arb.pdf. 3m See Suggested Changes to the ICSID Rules and Regulations, Working Paper of the TCSlD Secretariat, 12 May 2005,available at http://www.worldbank.org/icsid~052405-sgmanual.pdf. 307 Ibid., p. 10. "08 Ibid., p. 11. 3W UPS, cited note 272,$70. 310 Agum, cited note 274,$20.
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I11 GENERAL CONCLUSIONS Although one may not be able to speak of it yet as a device consecrated by "international rules of procedure" the analysis in Part 11indicates that the amicus curiae is a
principle that finds expression in a number of internationaljurisdictions. There are cer-
tainly dangers in generalizing a concept. The well-known intemational lawyer, Sir Arthur Watts, has warned that procedural questions "can in practice only be pursued on a tribunal-by-tribunal ba~is."~" Even considering this warning, the amicus curiae before international courts and tribunals has a number of core features. This Part analyzes those core features, and their variations across international jurisdictions. After identifying those features, it shall examine the general policy issues of, and prospects for, amicus curiae participation in the work of international courts and tribunals.
1 Juridical nature of the amicus curiae before international jurisdictions The analysis in Part 11 indicates that in the context of international jurisdictions, the term amicus curiae refers primarily to a person or entity whom a court or tribunal may, in its discretion, permit to participate in legal proceedings in a capacity lesser than that of a party. One of the few generalizations that can be made about amici curiae before international jurisdictions is that they are never considered parties as a matter of law and have lesser procedural rights than parties. The WTO, NAFTAtribunals, ECHR and the ICTY have explicitly made a distinction between amici and parties. Only in some ICTY proceedings have amici been accorded such rights as to blur the practical distinction between amici and parties. Although some commentators and a NAFTA tribunal have distinguished between the amicus curiae on the one hand and experts and witnesses on the other, in practice their functions sometimes overlap. In Methanex the NAFTA Tribunal stated: "Amici are not experts; such persons are advocates (in the non-perjorative sense) and not 'independent' in the sense that they advance a particular case to a tribunal.'"12 This distinction is not made as easily in other international jurisdictions, where amici can perform a hnction similar to that of an expert.)13In appointing amici, internationaljurisdictions rarely, if ever, explicitly rely on their power to appoint third parties as experts (although the Inter-American Court of Human Rights, probably implicitly, does assume such a power). This could indicate that under most international dispute settlement frameworks there are differences between the two, but many of the differences remain to be articulated.
"' Watts, "Enhancing thc Effcctivcncss of Proccdurcs ofIntcmationa1 Disputc Scttlcmcnt", Ma* Planck Yearbook of United Nations Law, Vol. 5,2001, pp. 21-39 at p. 21. 312 Methanex, cited note 27 1, $38. Later, in UPS, another NAFTATribunal recognized that the functions of amici and experts could overlap. After referring to "the power of the Tribunal to seek the assistance of independent experts on specialised factual matters", the tribunal stated: "The contribution of an amicus might cover such ground, but is likely to cover quite distinct issues (especially of law) and also to approach those issues from a distinct position.": see UPS, cited note 272, $62. Sec text accompanying notes 323 to 324.
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1.1 When can an amicus curiae participate? (Criteria ratione materiae) What type of interest must a person or entity demonstrate to participate as amicus before an international court or tribunal? In order to "intervene" in ICJ cases under Article 62 of the ICJ Statute, a state must demonstrate that it has "an interest of a legal nature which may be affected by the decision in the case." On the whole, participation of amici in international courts or tribunals is conceived more in terms of the interest of the court or tribunal than that of the person or entity seeking to participate. Broadly stated, the court or tribunal's interest is that amicus participation should contribute to the proper administration of justice in the specific proceedings and, perhaps, more generally. This interest is stated in various ways: "in the interest of the proper administration of justice" (ECHR); "desirable for the proper determination of the case" (ICC; ICTY; ICTR; SCSL); "desirable in the interests of achieving a satisfactory settlement of the matter at issue" (WTO Appellate Body); and "the . . . submission would assist the Tribunal in the determination of a factual or legal issue related to the arbitrationby bringing a perspective, particular knowledge or insight that is different from that of the disputing parties" (NAFTA). Sometimes the relevant procedural rules do not explicitly proscribe judicial discretion. For example participation may be permitted where the judicial body "deems [it] appropriate" (WTO Panels); or the entity is considered "likely to be able to furnish information on the [relevant] question" (ICJ; ITLOS). But even in these cases, practice indicates that the proper administration of justice, at least in the proceedings at hand, is a factor in deciding whether to permit participation. While the interest of the court or tribunal is generally most important, the interest of the potential amicus in participation can be important, at least in practice. That interest is not necessarily of a juridical nature.314 And the nature of the interest sufficient to enable participation as amicus varies across jurisdictions and according to the nature of the proceedings. Before the ICJ and ITLOS, an intergovernmental organization's interest in contentious cases involving its constituent instrument's construction is so important that it may participate as of right as amicus in the case. The ECHR often permits persons with a clear interest in the domestic proceedings to which an ECHR application relates to participate as amicus on that basis. The ICJ has been much less accommodating, notably in advisory proceedings relating to UN Administrative Tribunal proceedings. On the other hand in the Palestinian Wall advisory proceedings, the ICJ considered relevant Palestine's interest as co-sponsor of the draft resolution requesting the advisory opinion. When the ICTY requests a State that its court defer to the Tribunal's competence, clearly that State's interest in being heard is a factor in permitting its participation as amicus. But in ICTY proceedings following failure to execute a warrant, it seems that the indictee's State's interest in being heard is
"' As Ascensio states, as to the type of interest necessary for an amicus curiae to participate, "la doctrine Bvoque seulement un 'inter&' sans plus de prbcision. I1 n'est mBme pas certain qu'il s'agisse d'un int6rBt juridique, si I'on admet que I'amicus curiae puisse exposer son opinion Bgalement sur des faits - ou alors on doit entendre I'intMt juridique de manikre extremement large comme incluant un i n & % abstrait au bon fonctionnement de la justice."Ascencio, cited at note 22, at p. 912.
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insufficient. The WTO Appellate Body has asked applicants for leave to participate to "specify the nature of the interest that applicant has in this appeal". NAFTA Chapter 11 tribunals consider whether the applicant "has a significant interest in the arbitration". 1.2
Who can he an amicus curiae? (Criteria ratione personae)
The answer to the question who can participate as amicus curiae varies widely according to the jurisdiction. In some internationaljurisdictions, in principle, any State, organization (intergovernmental, international, or national) or person (natural or legal) may participate as amicus curiae. Such is the case before the ECHR, ICC, ICTY, ICTR and SCSL. In other jurisdictions participation is more restricted. For example, in practice, access to the 1CJ and ITLOS in the capacity of amicus curiae is limited to States and international organizations. In some jurisdictions persons or entities unable to participate in proceedings as parties may participate as amicus curiae, for example, NAFTA Chapter 11 tribunals (industry associations and NGOs); WTO Dispute Settlement Body (NGOs and individuals); and the ICC, ICTY and ICTR (States and international organizations). Persons or entities that can be parties to, or initiate, proceedings before a jurisdiction can often also participate as amici, for example: individuals, NGOs and States before the ECHR; States and intergovernmental organizations before the ICJ; and WTO Members before the WTO Appellate Body. Such participation is not always permitted because some entities can be parties to ITLOS Seabed Disputes Chamber cases but cannot participate in the Chamber's advisory proceedings. And amicus participation by entities that could participate in a different capacity can be controversial. Notably, a number of member States voiced disapproval of the WTO Appellate Body's 2002 decision in Sardines that a Member may not only participate as a "third participant" in appeal proceedings, but also as amicus curiae. Participation of a person or entity as amicus is likely to be more controversial in jurisdictions where there is no express provision for their participation. This unsurprising statement is supported by: States' ferocious reactions to decisions about inprinciple NGO participation as amicus curiae in WTO Appellate Body proceedings; by concern expressed in relation to non-State actor participation in NAFTA Chapter 11 tribunals; and by the ICJ's overall response to attempts by NGOs and individuals to participate as amici in its proceedings. By comparison, the ECHR and the international criminal tribunals have often, and relatively uncontroversially, used their broad express powers to permit amicus participati~n."~ Ascensio has also noted this difference in approach and characterized it as follows: jurisdictions concerned with interState disputes (for example, the 1CJ and the WTO) are more restrictive in their approach to amicus curiae than courts or tribunals largely open to private persons or
)I5 One example that does not support this proposition is the practice of the Inter-American Court of Human Rights, which has a relativelyrich amicus practice despite lack of express provision to appoint amici: see further Shelton, cited at note 2, at pp. 638440.
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at least for the defence of their rights (for example, ECHR and the international cnminal tribunals).316
1.3 The court or tribunal k discretion The international court or tribunal usually retains a broad discretionary power over all aspects of amicus participation. In the first place the international courts and tribunals discussed in this paper usually have discretion whether or not to permit amicus participation. There are exceptions in certain cases. Intergovernmentalorganizationsmay participate as of right in ICJ and lTLOS cases involving the construction of their constituent instruments. In the ECHR, a State has a right to act as amicus if it is a Contracting Party and the applicant is one of its nationals. And where a party to a dispute adopts a third person's submissions as its own, at least in WTO and NAFTA proceedings, the jurisdiction is obliged to accept them. If it does permit participation, an international court or tribunal has discretion over the form of that participation and the scope of the submissions, a matter that is discussed below.317 Once the amicus has made its submissions, at least some jurisdictions treat those submissions differently than parties' submissions, which must be considered. In WTO proceedings, neither panels nor the Appellate Body are obliged in law to give due consideration to amicus submissions, including in their reports. So too a NAFTA arbitral tribunal's grant of leave to file an amicus submission does not require it to address that submission at any point in the arbitration. Other international jurisdictions have not found it necessary to articulate their legal obligations in relation to amicus submissions after they have granted leave to persons to make them. It is conceivable that at least the ECHR and the international criminal tribunals would view their obligations differently. Ordinarily one would think that a grant of leave to a person to make a submission entails a legitimate expectation that the court would then at least consider in good faith whatever is submitted. ECHR practice supports this proposition in that it usually summarizes, however briefly, amicus submissions to it. And would the ICTY really consider that it had no legal duty to take into account submissions made in the Milos'eviC proceedings by amici appointed by it to ensure a fair trial? Consistent with international tribunals' general practice, after considering the submission it would be entirely in the Court's discretion what weight, if any, should be accorded to it. 1.4 Form and content of amicus curiaeparticipation
The form of amicus curiae participation in legal proceedings is circumscribed in two ways: (i) generally, by the particular court or tribunal's rules; and (ii) specifically, by any conditions upon which the court or tribunal permits the amicus to participate. This section discusses the following aspects of the form and content of amicus participation: "6
317
Ascencio, cited at note 22, at pp. 901 and 905. See text accompanying notes 318 to 322 below.
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whether written and oral submissions can be made; the length of written submissions; access by amici to the parties' submissions; whether amicus submissions cover legal and factual issues; and the right of the parties to respond to amicus submissions. An amicus curiae's participation extends at least to making written submissions to the court or tribunal. Sometimes the amicus can participate actively in oral proceedings but on the whole this is rare. Amici cannot ordinarily participate in NAFTA tribunal oral proceedings because UNCITRAL rules stipulate that the hearing is in camera unless both disputing parties consent. Amici cannot participate in WTO Appellate Body hearings318In practice the ECHR has rarely found it necessary to invite an amicus to take part in hearings. The ICTY has been relatively open to participation in oral proceedings by its amici, especially in the MiloSeviC proceedings. And States or international organizations participating in ICJ advisory proceedings have often taken part in the hearings. It is not common practice of international courts and tribunals to prescribe the maximum length of amicus briefs or requests for leave. For example, neither the ICJ, ITLOS, ECHR, ICC, ICTY nor ICTR prescribe page lengths. Most good lawyers recognize the persuasive force of brevity. Nonetheless, some important amicus briefs submitted to the ICTR (e.g., by NGOs in Akayesu) and the ECHR (e.g., by Liberty in I. v. UK) exceeded the page limits prescribed in the WTO ad hoc procedure. Perhaps reflecting the influence of US domestic practice, the WTO and NAFTA Chapter 11 tribunals have prescribed page limits. Access by amici to the parties' documents and submissions is often limited. In WTO and NAFTAtribunal proceedings, ordinarily the parties' submissions are confidential. In ICJ advisory proceedings, once a State or organization has been granted leave to make a written statement, it will receive a copy of other written statements filed in the proceedings. Otherwise the participants' written statements remain confidential until at least the beginning of the oral proceeding^.^" In international criminal proceedings it will depend largely on the stage of proceedings at which the request to make amicus submissions is made, to what extent documents and submissions are accessible. Normally the indictment and documents and information presented to the Court will be publicly available.320Documents filed in ECHR applications are generally accessible to the public (and thus also to applicants for amicus status) from the time they are deposited with the Registry.321 Amicus submissions usually address legal matters but in appropriate cases can extend to factual matters. In WTO Appellate Body proceedings, which only deal with appeals on issues of law, amicus briefs have been limited to issues of law. The rules of ECHR, ICTR, ICTY, SCSL and the ICC about amicus participation do not limit submissions to issues of law. Similarly, the rules of the ICJ and ITLOS do not limit to legal issues submissions by States and international organizations in the course of their 318 Compare Sardines, cited note 235,g 164, note 69 ("a Member which files an amicus curiae brief is not guaranteed that we will accept or consider the brief, and the Member will not be entitled to attend the oral hearing in any capacity.") ICJ Statute,Art. 66(4); ICJ Rules, Art. 106. 320 Compare ICTY Rules of Procedure and Evidence, Rules 52 and 53. "' ECHR Rulcs of Court, Rulc 33.
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advisory proceedings. Although such submissions will often relate mainly to legal issues, this is not always the case. In the Palestinian Wall advisory opinion it is clear that at least Israel would have been entitled to make, and the Court would have welcomed, factual submissions.322 International courts and tribunals routinely permit the parties to respond to any amicus submissions. Among the jurisdictions surveyed in this paper there are no exceptions, although some WTO member States have complained that the short mandatory deadlines for resolution of WTO disputes deprive the parties of a full and adequate opportunity to respond to amicus submissions. 1.5
Functions
Before international courts and tribunals, amici curiae have performed four broad functions: First, an amicus curiae can provide specialist legal expertise to the court or tribunal, in particular about matters outside the judges' core competence. This function is similar to that of an expert, although the expertise may be provided either as a "neuNotably, the international criminal tribunals have tral bystander" or as an advocate.323 appointed amici to provide expertise about general international law issues: ICTY (Tadid; Blas'kic?; and SCSL (Taylor).The WTO Appellate Body has permitted an NGO with special international environmental law expertise to participate (Shrimps/Turtles: Center for International Environmental Law). On several occasions the ECHR has appointed amici to provide legal expertise in areas that are within the core competence of its judges, that is human rights (Karner v.Austria: discrimination on the basis of sexual orientation). The ICTY and ICTR have also let amici make submissions about areas of law that were within the judges' core competence, for example: international humanitarian law (ICTR, Semanza); and credibility of a rape victim witness (ICTY, Furundiija). The use of amici to provide specialist legal expertise might perhaps contribute to less fragmentation of international For example, the Center for Justice and International Law performed this role in ECHR proceedings in Timurtay v. Turkey when it commented on the Inter-American Court of Human Rights' case-law on the issue of forced disappearances. Secondly, an amicus can provide factual information to the international court or tribunal. In doing so, its functions are akin to that of a witness. This fimction has been performed by amici in proceedings in the ICJ (e.g.,the Intemational Civil Aviation Organization in the Aerial Incident of 3 July 1988; the UN Secretary-General in Cumaraswamy);and before the ECHR (the OSCE in B l e Z v. Croatia). Compare Palestinian Wall,cited note 33,555. The Inter-American Court of Human Rights has no explicit power to appoint amici curiae but the legal basis of its extensive practice is probably Article 34(1) of the Court's Rules of Procedure: "The Court may. . . decide to hear as a witness, expert, or in any other capacity, and person whose testimony or statements seem likely to assist it carrying out its functions.":see Shelton, cited at note 2, at p. 638. 324 See, for example, Ascencio, cited at note 22, at 924. The UN Intemational Law Commission's programme of work includes an item about "Fragmentationof international law: difficulties arising from the diversification and expansion of international law". 322
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Thirdly, an amicus curiae can provide a measure of due process, or at least access, to persons or entities who cannot be parties to an international court or tribunal's proceedings but whose interests may be affected by the decision because of, for instance, their close involvement in municipal or administrative proceedings to which the international court or tribunal proceedings relate. Amici have fulfilled this function in, for example: ECHR proceedings (for example, Feldek v. Slovakia: plaintiff in municipal defamation proceedings against the applicant; von Hannover v. Germany: the publisher of photos against whom the applicant brought municipal proceedings); ICTY Rule 10 deferral proceedings; NAFTA Chapter 11 tribunals (UPS: Canadian Union of Postal Workers); WTO proceedings (Panel: Australia -Salmon: "Concerned Fishermen and . ~ ~ ~ICJ has been criticized for not Processors" from South A u ~ t r a l i a ) The permitting amici to fulfil this function, for example, in advisory proceedings relating to UN Administrative Tribunal decisions concerning UN staff. Fourthly, amici curiae can, to a certain extent, represent public interest considerations. NAFTA tribunal procedures contemplate intervention on such a basis. Persons and entities seeking to participate in WTO proceedings sometimes state that they could discharge this function. In some ECHR proceedings, members of civil society have performed this function (for example, in Pretty v. UK: Voluntary Euthanasia Society and the Catholic Bishops' Conference of England and Wales). The NGO coalition brief submitted to the ICTR in Akayesu manifested a public interest by acting as a check on the prosecutorial discretion about what charges are to be included in the indictment. States that intervene in ICJ advisory proceedings will often represent the public interest, especially democratic States with sophisticated mechanisms for consulting civil society. The extent to which NGOs represent the public interest is a matter of some debate. In general NGOs will represent what they deem to be in the public interest. As the survey of international jurisdictions' practice in Part I1 indicates, amici can perform other functions. A State's submissions as amicus curiae can provide evidence of opiniojuris, as did the United States' submission in the ICTY's Tadizproceedings. An amicus can explain the scope of the UN Secretary-General's waiver of a former UN official's privileges and immunities to give evidence before a tribunal, as was the case in the ICTR proceedings in Akayesu. We have considered the amicus curiae's functions in different international jurisdictions. A closely related question is how those functions ought to be discharged: should an amicus be impartial, neutral or independent? To some extent the answer to this question depends on the jurisdiction and the fimctions being discharged. Generally speaking, as in municipal jurisdictions such as the United States, amici curiae may legitimately perform an advocacy function; the traditional concept of amici as neutral bystanders has evolved.326 To this extent, ordinarily, amici are not expected to be completely neutral. When the ECHR appoints as amicus a person with a clear interest in the domestic proceedings to which an application relates, it must expect that 325 Ausiralia Measures Affecting Importation of S a l m o n Recourse to Article 21.5 by Canada, Report of the Panel, WTO Doc. No. W T D S l IIRW, 18 February 2000,§7.8. '26 Chinkin and Mackenzie explain: "The traditional concept of amicus curiae is generally described as a neutral 'bystander' who, without as direct interest in the litigation, on his or her own initiative brings to the attention of the court matters of fact or law within his or her knowledge. . . . [In this case] the primary
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the amicus will make submissions about his or her own interests. And when a coalition of NGOs urged the Prosecutor to amend the indictment in the ICTR Akayesu proceedings to include rape and sexual violence charges, they did so more as advocates than as neutral bystanders. Also, in WTO and NAFTA proceedings, there are indications that amici may act, and have acted, as advocates. While amici may sometimes appear as advocates it seems that they must still conduct themselves in a manner consistent with the trust reposed in them as "friends of the court". In the course of deciding in the MilofeviC proceedings that one amicus was no friend of theirs, the ICTY indicated that an amicus had to "act fairly in the performance of his duties [and] discharge his duties . . .with the required impartiality".327 Even though amici may make submissionsthat favour the position of one party over another, ordinarily the international court or tribunal will expect the amicus to be independent, that is, more a friend of the court than of a party. In WTO, NAFTAand ICSID proceedings it seems that, unless a party adopts a potential amicus k submissions, it is expected that the amicus be independent of the parties. So, an applicant for leave must disclose any relationship with, or assistance from, a party. And if it becomes clear that a WTO amicus has had access to a party's submissions in the course of preparing its own, it will be thereby disqualified. The ICTY also asked applicants for leave to make amicus submissions to identify and explain any contact or relationship with any party to the case.328 Ultimately, the answer to the question how impartial, neutral or independent an amicus ought to be depends on the functions it is discharging.An amicus who makes submissions to the ICJ about factual matters could be expected to be more impartial, neutral and independent than an amicus who is appointed by the ECHR because of his or her clear interest in the domestic proceedings to which the application relates.
2 Policy issues
Amicus curiae participation in international courts and tribunals raises a number of policy issues. Does it promote the peaceful settlement of international disputes?How does it fit with the notion that the parties' consent is the cornerstone of third-party settlement of international disputes? Is the doctrine ofjura novit curia outmoded? And does the amicus curiae contribute to the legitimacy, accountability and transparency of international jurisdictions? Let us consider these questions in turn.
role ofthe amicus is to assist the court. But over time a more advocacy-oriented amicus function has evolved whereby an organization or group make submissions to the court either in support of one of the parties to the dispute, in its own interest, or to ensure a wide ventilation of views in what the amicus deems to be the public interest." Chinkin and Mackenzie, cited at note 8, p. 136. 327 See text accompanyingnote 200. 328 Information Concerning the Submission ofAmicus Curiae Briefs, ITl122, 22 March 1997.
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2.1 Does the amicus promote peaceful settlement of international disputes? First, does amicus participation promote the peaceful settlement of international disputes? Some international jurisdictions' rules explicitly permit amicus participation.
The text of the relevant provision may appear in the Convention that established the court, which States have ratified. The ECHR is a case in point. Otherwise the text may appear in the court or tribunal's procedural rules. Sometimes States and other members of the international community have played a role in developing those rules. For example, many States were involved in the development of the ICC Rules of Evidence and Procedure. And, to a lesser extent, States were involved in the development of the ICTY and ICTR's rules following the tribunals' establishment by the Security Council. NAFTA procedures on amicus curiae have been agreed to by the Free Trade Commission which comprises cabinet-level representatives of the States Parties and acts on the basis of consensus. Where States have explicitly agreed to, or had input on, procedures for amicus curiae participation, it is reasonable to conclude that in their view such participation is useful for the relevant jurisdiction's purposes. At least in respect of NAFTA and ECHR proceedings one of the primary purposes is the peaceful settlement of disputes. That the ECHR has used amici relatively often, and for some time, despite a heavy caseload indicates that ECHR judges consider that, in practice, amici can perform a role in the peaceful settlement of disputes brought before them. The relative frequency with which ICTY and ICTR have appointed amici curiae indicates that their judges hold that, in practice, such participation can be "desirable for the proper determination of the case". There must be some doubt whether amicus participation contributes to the peaceful settlement of disputes where a jurisdiction's procedural rules do not explicitly permit participation and where States whose disputes are to be settled have voiced concern about amicus participation. This is precisely the case in relation to WTO dispute settlement, which is inter-State. On the whole, WTO Members disagree with the Appellate Body's decision that, in principle, it may receive amicus briefs notwithstanding the lack of an express provision in the DSU to that effect. Most Member States also did not agree with the decision that panels could accept uninvited briefs.329India has warned of the possible consequences for trade dispute settlement: "If governments knew that their non-governmental agencies had a further chance to influence the dispute settlement mechanism [by submitting amicus briefs], then . . . there could even be implications for compliance by govemments themselves."330 Similarly, it is doubtful that participation by NGOs and individuals as amici in ICJ and ITLOS proceedings would promote the settlement of the international disputes determined by them. First, such participation would be inconsistent with the longstanding practice relating to interpretation of Article 34 of the ICJ Statute. And that interpretation was one that found favour in ITLOS' rules, which were developed by a Preparatory Commission in which States' delegates participated.
329
130
WT/GCB4/60, cited note 21 1, $81 14 115. Ibid., $38.
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2.2 Amicus participation and the consent of the parties to thirdparty dispute settlement A second question, related to the first, is how amicus participation fits in with the notion that the parties' consent is the cornerstone of third-party settlement of intemational disputes. It will be recalled that in Methanex a NAFTA tribunal accepted amicus briefs in an arbitration between a State and an investor even though one of the parties did not consent. In an article published in 2002, Stem suggested that this entailed "une nouvelle marginalisation du consentement des Parties, qui est a la base de la procedure d'arbit~age."~~' Following the Free Trade Commission's statement on "non-disputing party participation" in October 2003 it may well be that the parties' consent in similar circumstances would not be quite so marginalizedbecause the State Parties to NAFTA have agreed on guidelines for amici participation. The consent of the parties to amicus participation is not an issue where the Parties have agreed, or had input into, express provisions enabling that participation. So, it is suggested that the consent of the parties is not a live issue, for example, in relation to proceedings in the ECHR. 2.3 Juria novit curia and amicusparticipation A third policy issue is this: does increased amicus participation mean that the principle jura novit curia is outmoded? Jura novit curia means that a tribunal of international law is deemed to know what this law is.332The relevance of the doctrine varies. ICTY and SCSL practice indicates that international criminal tribunals welcome assistance in relation to general intemational law issues, for example, the status of the tribunal and its effect on the immunity of a State's head of state (SCSL: Taylor) or the legality of a tribunal's establishment as an organ of the Security Council (ICTY Tadiq. The ECHR, the ICTY and the ICTR have permitted amicus interventions on legal issues that are within the core competence of the judges. On the other hand in the WTO, some States expect the Appellate Body, which only considers legal issues, to reach its . ~ ~in~ the great majority of decisions without the assistance of non-State a r n i ~ iAnd proceedings before international courts and tribunals, amici do not participate. This indicates that, on the whole, the principle of jura novit curia is more than an expression ofjudicial ego and continues to play an important role in international dispute settlement.
Stem, "L'entree de la societe civile dans l'arbitrage entre Etat et investisseur", Revue de l'arbitrage, 2002, pp. 329-345, atp. 339. 332 See Cheng, GeneralPrinciples ofLaw as applied by International Courts and Tribunals,Cambridge, Grotius Publications, 1987, pp. 299-301. 333 See WTIGCM60, cited at note 21 1, $7 (Uruguay: "the members of the Appellate Body had the capacity, knowledge and experience necessary to take the legal decisions incumbent upon them without any outside help"). See also Egypt on behalf of the IGDC at $13; India at $36; Brazil at $45; and Pakistan at $65.
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2.4 Does amicus participation promote the legitimacy, accountability and transparency o f internationaljurisdictions? While the doctrine ofjura novit curia might militate against internationaljurisdictions'
use of amici, it is argued, particularly by would-be amici curiae, that their participation would contribute to the legitimacy, accountability and transparency of intemational jurisdictions. Is there merit to this argument? Perhaps amicus participation can contribute to the legitimacy of the jurisdiction concerned, at least where an amicus is appointed to provide a measure of due process, or access, to persons or entities who cannot be parties to a jurisdiction's proceedings but whose interests may be affected by the decision. Rosenne has suggested that "in the interests of the proper administration of international justice", the ICJ ought to take advantage of its existing powers to permit an individual directly concerned to give to the Court his or her own version of the facts and construction of the law. He suggested that, amongst other things, such a process would increase the ICJ's general standing and prestige.334It may be that wider participation in international jurisdictions' proceedings promotes their legitimacy, at least among those seeking to participate. If NGOs could better access WTO proceedings, would NGOs and anti-globalizationprotesters better accept the WTO as the arbiter of international trade disputes between WTO members? Perhaps; an article co-authored by a member of the WTO Secretariat suggests as much.335But would such NGO access reduce the legitimacy of the WTO in the eyes of its clientele, States? That may well be the case, considering that States can see amicus participation as impinging on their sovereignty, the exercise of which was carefully considered when they became members of WTO. Consider, for example, Uruguay's view: The WTO was an agreement of a contractual nature that was qualitatively different from other intemational agreements in the sense that the obligations that stemmed from this contract included the strict fulfilment of the decisions of the DSB to the extent of diminishing the decision-making capacity of Members. Insofar as Members were mainly States, the political effect of this situation was of no little
Further, some States have warned of a "risk that the [WTO] DSB would be excessively influenced by NGOs or by large companies who would offer legal services. This situation would be bad for the WTO but would be even more negative for developing countries whose financial and human resources were limited and whose electronic communication means were not as developed."337
334 Rosenne, cited note 7, p. 250. A youthful Brownlie made similar comments: "Even if the individual is not to be given procedural capacity a tribunal interested in doing justice effectively must have proper access to the views of individuals whose interests are directly affected whether or not they are parties as a matter of procedure." See Brownlie, cited note 26, p. 719. 335 Marceau and Stilwell, "Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating Bodies", Journal oflnternational Economic Law, Vol. 4,2001, pp. 155-187, at p. 178. 336 WTlGCIMl60, cited note 21 1, 55. "' WTlGCIMI60, citcd notc 21 1, $93 (Argentina). Scc also $38 (India).
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On occasion amicus participation has performed a role in ensuring accountability. The best example is probably the NGO coalition's brief submitted to the ICTR in Akayesu, which acted as a check on the prosecutorial discretion about what charges are to be included in indictments. In ICJ advisory proceedings wide participation by States, whose submissions are carehlly considered by the Court, may contribute some measure of accountability of the Court to its clientele. In Palestinian Wall, even Israel's limited presence arguably forced the ICJ to at least address a number of arguments in favour of Israel's position. Finally, does amicus participation contribute to the transparency of international jurisdictions' proceedings? As Stern rightly notes, the word "transparency" is a "mot quelque peu passe-partout, mais qui semble operer comme un sesame."338The NAFTA tribunal in Methanex considered that "the Chapter 11 arbitral process could benefit from being perceived as more open or transparent; or conversely be harmed if seen as unduly secretive. In this regard, the Tribunal's willingness to receive amicus submissions might support the process in general and this arbitration in particular."339In UPS, Canada supportedamicus participation in principle because of, among other things, "its appreciation of the contribution that transparency brings to building public confidence in the investor-state dispute settlement process."340In Aguas an ICSID tribunal similarly referred to interests in transparency and openness in support of its decision to permit amicus participation in principle.341 But is amicus participation really an issue related to interests in transparency? At least in the context of amicus participation in WTO proceedings, Canada, Turkey and Argentina thought not. Canada said: . . .one should not confuse the issues of transparency and participation in WTO dispute settlement. Canada fully supported greater external transparency in the WTO, including in dispute settlement. The amicus briefs were, however, not a transparency issue. It addressed the fundamental issue of participation in WTO dispute settlement proceedings, i.e., whether this participation should be limited to WTO Member governments or would non-governmental bodies also be entitled to participate. Canada was sympathetic to the interests of non-Members in the outcome of WTO disputes and recognized that civil society, including NGOs, followed closely the issues examined in disputes. At the same time, Canada also acknowledged the need for Members to examine the impact this might have on what was a government-to-government dispute settlement process?42
Amicus participation in international jurisdictions may be desirable for a number of reasons, but it is suggested that, in view of Canada's comments in the WTO, transparency is not one of them. Anyway, the amicus briefs sent to the Appellate Body in
Stem, cited note 33 1, p. 345. Methanex, cited note 271, 549. "O UPS, cited note 272, $5 1. Aguas, cited note 274, $22. WTIGCIMI60, cited at note 2 11, $$71,72.Turkey echoed Canada's comments: "To present this legal matter as an issue of external transparency would be misleading." (See $80.)Similarly,Argentina said amicus participation "was not related to transparency issues." (See $93.) On the other hand, the European Communities and Chile appeared to consider the issue of amicus participation as one of transparency: see $896 and 100, respectively. 339
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Asbestos hardly contributed to transparency because only a few potential amici posted their briefs on the Internet.343A far greater contribution to transparency would be US President Clinton's suggestion that "all hearings by the WTO be open to the public, and all briefs by the parties be made publicly a~ailable".~"
3 Prospects
Since the 1990s amici curiae have become more prominent before international jurisdictions. With the increased influence of non-State actors at the international this trend is likely to continue. In principle, amici curiae may participate to varying extents in the legal proceedings in all of the international jurisdictions discussed in this paper. Recent practice indicates that amici curiae have found, and will continue to perform, useful roles, particularly in international human rights and international criminal proceedings. Some international jurisdictions continue to be reluctant to let civil society participate, in particular the ICJ and ITLOS. But even the State-centred ICJ has indicated an increasing openness to NGO participation in advisory proceedings. And intergovernmental organizations are yet to take full advantage of opportunities for their participation in ICJ proceedings. The extent to which ITLOS amicus practice expands will probably depend on it finding a greater and more diverse caseload. While WTO dispute settlement proceedings are in principle open to amici, in practice NGOs and others are unlikely to gain access until they obtain better access to parties' submissions and convince the Appellate Body, panels, and most importantly, WTO Members, that their presence positively enhances dispute settlement. Prior to 2001 amicus participation in international arbitration was unknown. Since then NAFTA and ICSID tribunals have permitted amicus participation in investor-State dispute arbitrations. It is likely that amicus participation will become more common in international arbitrations involving at least one State and where a public interest element is clear. But there will be strong resistance to amicus participation in the "standard run of international commercial arbitration between private parties." In the view of this writer, the prospects for amicus participation could be enhanced in several ways. First, the juridical nature of an amicus curiae should be clarified or developed to recognize it as an entity that is neither party, witness nor expert, but has sufficient international legal personality to perform the functions required of it by the relevant international jurisdiction. Courts and tribunals will then have a clearer idea of what exactly they might invite to participate. Necessarily, the functions of an amicus in a particular jurisdiction would have to be elaborated. At a minimum, its function could be expressed broadly as one "to contribute to the proper determination of the case". See Institute o f International Economic Law, "Amicus Curiae in EC-Asbestos (DS 135): Applications requesting leave to file a written brief and the briefs of NGOs", available at http:Nwww.law.georgetown. eduliie~current~amicuslamicuscuriae5.html. WORLD TRADE WTIFIFTYIHISTI8,cited note 220, p. 4. 345 See, for example, We the Peoples: Civil society, the United Nations and Global Governance, Report of thc Pancl of Emincnt Pcrsons on Unitcd Nations Civil Socicty Rclations, A158181 7, 1 1 Junc 2004. -
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Secondly, the conditions for amicus participation could be developed or reviewed after wide consultation with representatives of all those interested: members of the court or tribunal; entities able to appear as parties before it; and potential amici; courts or tribunals anxious about (extending) amicus participation could consider pilot projects. In this way, the amicus curiae could become a closer friend of international courts and tribunals.
Law Enforcement
T H E ENVIRONMENTAL ACCOUNTABILITY O F T H E WORLD BANK T O NON-STATE ACTORS: I N S I G H T S
FROM T H E I N S P E C T I O N PANEL
The international legal order has seen over recent decades the proliferation of international organizations, and the expansion of their functions in, and impacts on, all spheres of international affairs, not always with beneficial results. In particular, the operations of international organizations with a financial and development mandate, such as the World Bank,' have been targeted as contributing to serious adverse environmental and social conditions in borrowing countries, mostly through the funding of large infrastructure projeck2 As international organizations acquire increasing responsibilities, there are demands for the establishment of mechanisms enabling those potentially affected by their acts or omissions to call the organizations to account. It has been observed that: There is no reason at all, as a matter of principle, why [international organizations] could or should not be held accountable for disadvantages and repercussions resulting from their acts or omissions and normally based upon the authority and power granted to them.? While the relevance of the attribution of accountability to international organizations is clear, the legal parameters of the concept * Lic. Iur. University of Geneva, LL.M. University of California, Berkeley School of Law (Boalt Hall), D.Phi1. Candidate University of Oxford, Faculty of Law. The author would like to express her gratitude to Catherine Redgwell for her invaluable advice and comments in the writing of this article. The author also owes hcr thanks to Professors James Crawford and Vaughan Lowe for their very helpful input in reviewing the piece. ' The term 'World Bank' or 'Bank' is used here to encompass the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA). 'World Bank Group' is usually used to cover, in addition, the International Finance Corporation (IFC), the Multilateral Investment Guarantee Agency (MIGA), and the International Centre for Settlement of Investment Disputes (ICSID). For lack of space, the present article is limited to the IBRD and IDA. The article focuses on environmental issues, leaving aside other policy areas such as human rights. The new lending commitments from the World Bank to client countries reached US$29 billion in Fiscal Year (FY)1999,with disbursements at US$24.2 billion. See World Bank, Annual Repmt (ITrggg), iii. The Bank has an extended membership, with 183 States parties. 3 International Law Association (ILA), Committee on Accountability of International o r t (1998).p. 14. Organisations, First w
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are still emerging, and n o consensus on its meaning exists.* Accountability is concerned with questions of compliance with procedures and rules relating to the exercise of public power. It is a broad and flexible concept. Questions of accountability may be raised through a wide range of measures by member states, other organizations, or non-state actors. The concept covers on the one hand the international responsibility of organizations. According to the dominant doctrine, the principles of state responsibility are applicable by analogy, albeit with some variation, to the responsibility of international organization for internationally wrongful acts.5 This topic remains so far largely uncharted, as the International Law Commission (ILC) has to date limited its work to the question of state responsibility. The attribution of responsibility encounters further obstacles, in particular when applied to the nexus between environmental harm and the activities of international financial organizations. These include the absence of international judicial or non-judicial fora in which claims against organizations can be brought (especially by non-state actors), the difficulties of identifying international environmental obligations binding upon the organization and of attributing wrongful acts or omissions to it, and the existence of procedural bars in domestic jurisdiction^.^ Consequently, there have been no cases in which an international or national court has decided on the merits of a claim brought by a third party alleging environmental harm arising from World Bank actions or omissions in the course of its lending operations. By contrast the concept of accountability extends to a variety of measures aimed at monitoring the conduct of organizations, particularly by means of information dissemination, public participation, submission of reports, and the undertaking of inspections.7 As these latter measures can become engaged before as well as after harm occurs, such a broad concept of accountability is of particular relevance in the environmental context. It caters well to the emphasis put on the prevention principle, i.e., the avoidance rather than the remediation of environmental damage. It also allows for non-state actors to play a role in representing environmental interests on the international level. 4 See Wellens, 'The Primary Model Rules of Accountability of International Organizations: The Principles and Rules Governing their Conduct or the Yardsticks for their Accountability' in Schermers and Biokker (eds.), Aolijeration of 10s: Legal Issues (2001) p. 433. 5 For studies on the attribution of responsibility to international organizations see Hirsch, The Responsibility of International Organizations toward Third Parties: Some Basic Principles (1995);P. Klein, La responsabiliti des organisations internationales (1998). See Reinisch, International Organizations befure National Courts (Cambridge Studies in International and Comparative Law, 2000). 7 The ILA similarly distinguishes 3 components of the accountability of international organizations, namely ( I ) forms of internal and external monitoring, (2) tortious liability for injurious consequences arising out of acts or omissions not involving a breach of international and/or institutional law; and (3) responsibility arising out of acts or omissions which do constitute such a breach. See ILA First Report on Accountability, above nn. 13, 17.
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The present article is concerned with this broader dimension of accountability.* It explores the question of the environmental accountability of international financial organizations to third party non-state actors by focusing on the World Bank Inspection Panel.9 The endorsement by the international community of sustainable development objectives has resulted in expanding the mandate of the Bank and other organizations, which are now expected to include consideration of environmental factors in their operations. It has also fostered calls for 'good governance' and greater legitimisation of international decision-making processes, including accountability.IOA significant trend in the development of the accountability of international financial organizations has been its extension to third party non-state actors, such as individuals, interest groups, nongovernmental organizations, and local communities affected o r concerned by the acts or omissions of the organizations, thereby belying the traditional notion that international organizations are exclusively accountable to their member states." As illustrative of these developments, the Inspection Panel provides a forum for non-state entities to hold the World Bank accountable for the way in which it conducts its project lending activities with regard to, inter alia, environmental conservation. The first part examines the applicable law governing the lending activities of' the Bank with respect to environmental conservation, which represents the necessary prerequisite for the mise e n Euvre of accountability by means of the Inspection Panel. The second is devoted to the Panel's procedural and substantive features. In order to illustrate these features, the third part provides a brief inquiry into the 1999 request on the China Western Poverty Reduction Project ( ' C h i n a Request'). The fourth part draws from the foregoing analyses insights into the contours of the Bank's environmental accountability. For this purpose, it assesses the Panel according to several criteria, viz., jurisdictional issues, procedural aspects, and consequences of the process. There follow some concluding observations on the characteristics of the mechanism. w e do not, therefore, address here the question whether the Bank's loan development activities could raise its responsibility when harm is caused to people or the environment. 9 The article does not deal with the internal hierarchical system of accountability within thc Bank, that is, accountability to its member States, which remains a primary conduit for supervision of the Bank's implementation of, and compliance with, rules and policies. ' O See Fox and Brown (eds.), The S t m g l e for Accountability: The World Bank, NGOs and Cffasroots Movements (1998). " See 'The Accountability of International Organizations to Non-State Actors' in Proceedings of the g m d Annual Meeting of the American Society of International Law (ASIL) (1998) p. 359. Analysing the development of NGO action in the international arena, and thc questions surrounding the legitimacy of non-state entities see Cullen and Morrow, 'International Civil Society in International Law: The Growth of NGO Participation' (2001) I Non-State Actors &'In11 L p. 7.
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The Evolution of the World Bank's Mandate i n Light of the Concept of Sustainable Development The World Bank's Articles of Agreement do not require environmental considerations to be taken into account in the organization's operations,12unlike the constituent instrument of the European Bank for Reconstruction and Development (EBRD).I3 Indeed they explicitly forbid the consideration in the lending process of non-economic factors. Drafted during the UN International Monetary and Financial Conference held at Bretton Woods in 194.4, the Bank's initial mandate of reconstructing war-torn Europe14gave way, in the path of decolonization, to the promotion of 'development'.'5 The notion of development was initially understood in purely economic terms. The Articles of Agreement stipulate that '[t] he Bank shall make arrangements to ensure that the proceeds of any loan are used . . . without regard to political or other non-economic influences or consideration^'.^^ This provision has been considered to mean that 'the only considerations which, under the Articles, are relevant to the decisions of the Bank and its officers are those which qualify as "economic considerations"."7 The Bank's mandate has adjusted to changes in the international law of development. The concept of sustainable development 'aptly expresse [s] ' the 'need to reconcile economic development with protection of the environment'.18 Sustainable development is prominently endorsed in the non-binding instruments that resulted from the 1992 UN Conference on Environment and Development (UNCED),I9 See IBRD, Articles of Agreement o j the International Rank Jur ~econstruclil~n and DwsyIment (IBRD Articles of Agreement) (22July 1944;2 UNTS (1947) p. 134,as amended 606 UNTS (1967)p. 294); IDA, Articles of Agreemat of the International Dmelopment Association (IDA Articles of Agreement) (16 February 1960; 439 UNTS (1962) p. 249). '3 See Agreement Establishing the European Bank for Reconstruction and Dwelopmenl (29 May 1990; rg Preamble and Art I1 ( I ) (vii). ILM (1990) p. 1077)~ '4 See IBRD Articles of Agreement, (above n. I Z ) , Art I (i). '5 See ibid., Art I(i) and (iii), and I11 (r)(a); IDA Articles of Agreement, above n. 12, Arts I and V(r)(a) and (b). l 6 IBRD Articles of Agreement, above n. 12, Art 111 (5) (b) (emphasis added). See also Art. N ( I o ) . Arts. V (I) (g), V(6), and Vl (5)(c) of the IDA Articles of Agreement, above n. 12 contain similar language. '7 Shihata, The World Rank in a Changing World: Selected Essays (1991) p. 66. Contra, see Bowles and Kormos, 'Environmental Reform at the World Bank: The Role of the U.S. Congress' (1995) 35 VirginiaJ Intl L p. 777, 809-13. l8 ICJ, Case Concerning the GabEikov~NagymarosProject (Hungary/Slovakia); ICJ Reports, 1997, p. 7 , para. 140. '9 See the Rio Declaration on Environment and Development (Rio Declaration), Rio de Janeiro, 13June 1992; UN Doc A/CONF.151/26 (Vol I) (1992); 31 ILM (1992) p. 874, Priuciples 4, 11, and 25; A p d a 2 1 , Rio de Janeiro, 13June 1992; UN DOCA/CONF.ry/26 (Vols I, 11, & 111) (1992);and Non-legally Binding
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as well as in several major environmental treaties,20and has been referred to in decisions of international c o u r t s . 2 1 Its legal status, however, remains debated.22 The endorsement of sustainable development, with its 'integrated' conception of d e v e l 0 p m e n t , ~ 3 has led to evolving expectations on the part of the international community of the role of international financial o r g a n i z a t i o n s . ' 4 The latter are now called upon both to contribute to the funding of sustainable development and environmental c o n s e r v a t i o n , ' 5 and to integrate related considerations in their operations.26 General Assembly resolution 47/19' highlights the role of international financial organizations in sustainable development by calling upon the World Bank and other international, regional, and subregional organizations to report to the UN Commission on Sustainable Development (CSD) on their implementation of Agenda 2 I .27
In the wake of UNCED, and following mounting concern over the adverse impact of its lending activities on the environmental and social
Authoritatzve Statement ofPrinnplesfor a Global Consenrur on the M a n . a p n t , Conservatzon and Sustainable Development of All Types of Fmest, Rio de Janeiro, 13 June 1992; UN Doc UNCED Report, A/CONF.151/26 (Vol 111) (1992);31 ILM (1992)881. 10 See, e.g., the UN Framework Convention on Climate Change (UNFCCC), New York, g May 1992; 31 ILM (1992) p. 849, Preamble and Art 2; and Convention on Biological Diversity (CBD), Rio de Janeiro, 5 June 1992;31 ILM (1992) p. 818, Art I . I' See ICJ, Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in A m d Con$icr, ICJReports, 1996.66;Separate Opinion of Vice-presidentWeeramantry, para. 30; ibid., Gabtikouo Case, above n. 18, para. 140 and Part A. WTO, Report of the Appellate Body, United States-Import Prohibition of Certain Shrimp and Shvimp Products, 12 October 1998; WT/DS58/AB/R, para. 129, International Tribunal for the Law of the Sea (ITLOS), Southern Bluefin Tuna Cases (Nau Zxahnd v. Japan; Australia v. Japan), Order concerning the Requests for provisional measures, 27 August 1999. See generally Sands, 'International Courts and the Application of the Concept of "Sustainable Development"' (1999) 3 Max Planck UN Ybk p. 389. See Lowe, 'Sustainable Development and Unsustainable Arguments' in Boyle and Freestone (eds.), Inlaational Law and Sustainable Development (1999) 19. 23 Sands, 'International Law in the Field of Sustainable Development' (1994) 65 RYBII, p. 303, 338-9. z4 Para. 1.3 of Agenda 21, above n. 19, emphasizes the critical need for a global partnership for sustainable development centred on the United Nations system and involving other international, regional, and subregional organizations. See also Handl, Multilateral Development Banking: Environmental Principles and Concepts Refitting General International Law and Public Poliq (2000). The adoption of the UNCED instruments, as well as subsequent environmental treaties, has resulted in t.he progressive integration of environmental norms in international organizations generally. See Werksman (ed.), Greening International Institutions (1996). 25 Para. 33.14of Agenda 21, above n. 19, stipulates, for instance, that '[flunding for Agenda 21 and other outcomes of the Conference should be provided in a way that maximizes the availabilityof new and additional resources and uses all available funding sources and mechanisms. That include, among others: a. The multilateral development banks and funds.' See also UNGA Res S19/2, Pro amme fur the Further Implementation oJAgenda 21, 28 June 1997;36 ILM (1997) p. 1639, para. 78. 2rPara. 38.7 of Agenda 21, for example, recognizes that '[tlhe overall objective is the integration of environment and development issues at national, subregional, regional and international levels, including in the United Nations system institutional arrangements'. 27 See UNGA Res 47/19', Institutional arrangements to follow up the United Nations Conferace on Envzronment and Develqpment (A/Res/47/191); 22 December 1992,para. 23.
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conditions in borrowing states,28the World Bank has explicitly adopted a sustainable development mandate.'g This new mandate is reconciled with the organization's constituent instrument by means of a purposive interpretation,3O which dictates that the Bank's original mandate must be interpreted in light of the shifts in the development paradigm, embodied by the international recognition of the concept of sustainable development.3' Hence, the Articles of Agreement, while they are not as such a source of environmental standards applicable to lending operations, have provided the framework for the expansion of the Bank's mandate to include broad objectives relating, inter alia, to environmental is~ues.3~ The contours of this mandate have been shaped in part by the development of subsequent practice of the organization through the adoption of environment-related operational policies and procedures.
LR See, e.g., Ayres, Bankzngon thePoor: The World Bank and World Poverty (1983);Paul, 'International Development Agencies, Human Rights and Humane Development Projects' (1988) 17 DenverJIntl. L UPracticep. 67; Plater, 'Damming the Third World: Multilateral Development Banks, Environmental Diseconomies, and International Reform Pressures on the Lending Process' (1988) 17 DenverJInt1. L tj.Policy p. 121; Rich, Mortgaging the Earth: The World Bank, Envtronmental Impovoishmnt, and the C h i s ofDeuelupment (1994);Werksman, 'Greening Bretton Woods' in Sands (ed.), (ireeainglnternational Law (1993)p. 65. A recent report by an external Advisory Panel convened by the World Bank's Operations Evaluation Department (OED) in March 2000 has been highly critical of the Bank's performance on the environment. See World Bank, Report of the Advisory Panel, 2 July 2001 (available at URL ). '9 See, e.g., World Bank, MakingDevelupment Sustainable: The World Bank G o u p and the Environmmt (1994); ibid., Advancing Sustainable Deuelopnent: The World Rank and Agenda 21 (1997); ibid., Making Sustainable Commitments. An Environment Strategy for the World Bank, 17 July 2001. See also Mucklow, 'The Integration of Environmental Principles into the World Bank' (2000) g Rev. EC Intl. Envtl. L p. 100. 3° Purposive interpretation is built in Art. 31 of the Vienna Convention on the Law of Treaties, and has been recognized by international judicial fora. See, e.g., the WTO Appellate Body report in the ShrimpTurtle Case, above n. 21, paras. 129-130 (stating that the term 'exhaustible natural resources' is 'evolutionary' and must be read 'in the light of contemporary concerns over the community of nations about the protection and conservation of the environment'). 3' See Ciorciari, 'The Lawful Scope of Human Rights Criteria in World Bank Credit Decisions: An Interpretive Analysis of the IBRD and IDA Articles of Agreement' (zooo) 33 Cornell Intl. LJp. 331; Schlemmer-Schulte, 'The World Bank Inspection Panel: A Model for Other International Organizations?' in Schermers and Blokker, above n. 4, pp. 483,501 (observing that the Bank has been able, 'based on a purposive interpretation of its mandate, to move into new areas beyond the narrow literal meaning of its charter provisions, while, at the same time, respecting its charter's express limitations'). On the limits put on an extensive interpretation of constituent instruments, in particular those dictated by the functional specialization of international organizations, see, e.g., Amerasinghe, Principles of the Institutional Law of International Organisations (1996) p. 24; Leary, 'The WHO Case: implications for Specialised Agencies' in Boisson de Chazournes and Sands (eds.), International Law, the International Court ofJustzce and Nuclear W e a p m (1999)p p 112, 117;Schermers and Blokker, International Institutional Law: Unity Within Diversity (3rd rev. edn., 1gg5),paras. 15-21and 209. 32 The narrowness of the mandate has also led to calls for an amendment of the Bank's Articles of Agreement. See, e.g., Levinson, 'Multilateral Financing Institutions: What Form of Accountability?' (1992)8 American UJIntl. L &Policy pp. 47, 59.
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Operational Policies and Procedures
Within the framework of its charter, the World Bank has since the 1970s undertaken a noteworthy programme of environmental reform.33 The
pursuance of environmental goals by the Bank reflect. the twofold
approach found in Agenda 2 I .34 It comprises on the one hand the funding of 'self-standing' environmental projects (i.e., projects that have as their primary aim the protection of the environment), and on the other the integration of environmental considerations in the Bank's overall loan development activities (sometimes referred to as 'mainstreaming' sustainable development).35 Other activities include the Bank's participation in a number of multilateral environmental trust funds, such as the Global Environment Facility (GEF),36 the Multilateral Fund for the Montreal Protocol (MFMP),37 and the Prototype Carbon Fund (PCF).38 The process of integration of environmental considerations in the Bank's loan development activities has been accomplished primarily through the enactment of internal environmental 'safeguard' policies and procedures.39 The format of these instruments has varied since their inception. They were first issued in the mid-1980s in the form of 'Operational Manual Statements' (OMSs) and 'Operations Policy Notes' (OPNs), and were after 1987 gradually reflected in 'Operational Directives' (ODs).4O In the early ~ggos,a process was initiated to convert the latter into 'Operational Policies' (OPs), 'Bank Procedures' (Bps), and 'Good Practices' (GPs). A clear distinction has been established between standards included in OPs and BPS,which are mandatory upon Bank staff, and those found in GPs, which are merely advisory. This new format was intended to remedy the perceived shortcomings of previous policies, which could embody within the same document both binding and non-binding standards. While introduced as a simple 'streamlining' and 'simplification' process,4' this conversion has also been seen as 33 The Bank's environmental reform most effectively occurred after 1992. See further Wade, 'Greening the Bank: The Struggle over the Environment, 197~1995'in Kapur, Lewis, and Webb (eds.), The Wmld Bank: Its First Half-Century: Perspectives (1997).The mandates of the IFC and MICA have experienced a similar evolution, albeit more recently. 34 See above nn. 25 and 26. 35 See, znter alia, World Bank, Mainstreaming the Environment: The World Bank and the Environment Since the Rio Earth Summit (FY 1995). 36 See GEF, Instrument for the Establishment of the Restructured Global Environment Facility, 16 March 1994~33 ILM (1994) P. 1283. 37 See 4th Meeting of the Parties of the Montreal Protocol, Decision W r 8 , Copenhagen, 25 November 1992;UNEP/OzL.Pro.4/ 15. See URI. . 39 See Di Leva, 'International Environmental Law and Development' (1998) lo Georgetown Intl. Envtl. L Rm.p. 501. On the adoption process of safeguard policies see Boisson de Chazournes, 'Policy Guidance and Compliance: The World Bank Operational Standards' in Shelton (ed.), Commitment and Compliancer The Role oJNon-Binding N o r m in the International Legal System (2000) pp. 281, 284. 4O For a comprehensive account of the various instruments embodying Bank policies and procedures see Shihata, The W d Bank Inspection Panel (1994). p p 42-7. 4' See ibid., pp. 4 5 6 .
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T H E ENVIRONMENTAL ACCOUNTABILITY OF
watering down certain environmental standards in order for them to escape the jurisdiction of the Inspection Panel, which expressly excludes non-binding operational policies and pr0cedures.4~ These internal, quasi-administrative documents43 are intended to provide standards for the Bank's staff to deal with environmental issues44 raised during the project cycle of Bank-funded projects.45 Such issues are addressed primarily through the policies and procedures on environmental assessment, which represent the keystone for the evaluation of the environmental soundness of a pr0ject.4~Additional standards complement environmental assessment requirements with respect to protection measures for the global commons.47 Other Bank safeguard policies and procedures provide specifications, instructions, and guidance in respect of a range of environmental sectors that the Bank has determined affect project development. They concern dam and reservoir natural habitats and endangered species;49 forestry;sOwater management and international waterways;5' cultural pr0perty5~and agricultural pest management.53 In general terms, these environmental policies and procedures require that the Bank apply certain standards during the preparation and appraisal of projects, primarily through environmental covenants found in the loan or credit agreements54 They also demand that the Bank supervises project 4% See Hunter and McCrae, 'Multilateral Lending Activities' (1995) 6 Ybk. Intl. E n d . L pp. 354.356; Kingsbury, 'Operational Policies of International Institutions as Part of the Law-Making Process: The World Bank and Indigenous Peoples' in Goodwin-Gill and Talmon (eds.), The Reality of Intaational Law: Essays in Honuuroflan Browtlie (1999)pp. 323,331; Nathan, 'The World Bank Inspection PanelCourt or Quango?' (1995) 12 JIntl. Arbitration pp. 135, 141-8. See also below n. 144 and related text. 43 See Boisson de Chazournes, above n. 39, p. 281. 44 The policies on indigenous peoples and involuntary resettlement are treated in the context of requirements on transparency and participation. See below n. 82 and related text. 45 The World Bank project cycle typically comprises the following phases: (a) project identification and preparation; (b) project appraisal; and (c) project implementation. 46 See World Bank, Operational Policies, Bank Procedures, and d d Practices, Environmatal Assessment (OP, BP, and GP 4.01) (January 1999).These policies are applicable to all Bank projects, including those funded under the GEF, but not structural adjustment loans or debt and debt service operations. 47 See ibid., Operational Policies, EconomicEvaluation of Investment Operations (OP 10.04) (September '994). 4* See ibid., Safety $Dam (OP 4.37) (September 1996),para. 8. 49 See ibid., Operational Policies and Bank Procedures, Natural Habitats (OP and BP 4.04) (September 1995); ibid., Environmatal Assessment Sourmhk Update, Biodiversity and Environmental Assessment (October 1997). See ibid., OperationalPolicies, Forestry (OP 4.36) (September 1993). 5' See ibid., Water Resuurces Management (OP 4.07) (February 2000); ibid., Operational Policies and Bank Procedures, Projects on International Waterways (OP and BP 7.50) (October 1994). 52 See ibid., OperationalPolicies, Cultural Property (OP 4.1I ) (August 1999). 53 See ibid., Pest Management (OP 4.09) (December 1998). 54 Thus, operational policies and procedures become binding only upon borrower countries when they are incorporated in Loan or credit agreements. On environmental conditionality see Bekhechi, 'Some Observations Regarding Environmental Covenants and Conditionalities in World Bank Lending Activities' (1999) 3 Max Planck UN Ybk p. 287; Shihata, The World Bank in a Changing World (~ooo), pp. 5-4.
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implementation to ensure that borrower States comply with their contractual obligations.55 In case of noncompliance, the Bank has the discretion to impose sanctions, such as, for instance, to suspend or cancel the right of the borrower to make withdrawals from the loan account or even to suspend a member State's rnembership.56 The Bank's policies and procedures are to be viewed in a wider context than the internal legal order of the organization.57 As an organization with international legal personality, the World Bank operates within the framework of international law. It has accordingly committed itself to pursue its activities in compliance with international environmental instruments. The Bank 'does not finance project activities that would contravene [the obligations of the borrowing country under relevant international environmental treaties and agreements] '.58 Irrespective of the participation of borrowing States in particular environmental treaties or agreements, a policy directive of the organization stipulates that: The World Bank, an organization created and governed by public international law, undertakes its operations in compliance with applicable public international law principles and rules. These principles and rules are set forth in instruments such as treaties, conventions, or other multilateral, regional, or bilateral agreements. In addition, certain legally significant non-binding instruments, such as statements of policy reflected in Agenda 21 of the U.N. Conference on Environment and Development . . . reflect other international law principles and obligations.59 Hence, the Bank undertakes its mandate in compliance with any international environmental instrument to which the borrower is a party, as well as other international environmental principles and rules, including those couched in instruments to which the borrower is not a . ~ ~ the Bank is not a party to party, and non-binding i n s t r ~ m e n t sWhile multilateral environmental agreements, and is thus not bound by them
55 See World Bank, Operational Directive, Project Supervision (OD 13.05) (March 1989); ibid., Project Moniton'ng and Evaluation (OD 10.70) (November 1989). 56 See IBRD, General Conditions Applicable to Bank b a n and Guarantee Agrennents, 30 May 1995, Art VI; IDA, Gaeral Conditions Applicable to Development Credit Agreemats, I January 1985, as amended on 6 October 1999,Art VI; IBRD Articles of Agreement, above n. 12, Art VI(2); IDA Articles of Agreement, Art VII(2). 57 See Wirth, 'Economic Assistance, the World Bank, and Nonbinding Instruments*in E. Brown Weiss (ed.),Inlernational Compliance with Nonbinding Accords (1997) p. 219. s8 OP 4.01, above n. 46, para. 3. 59 World Bank, Envimmental Assessmat Sourcebook Update, International Agreement.7 on Environment and Natural Resources: Relevance and Application in Environmental Assessment, March 1996. I . 60 Emphasizing such an undertaking, the World Bank's President stressed in his 1997 speech before the UN General Assembly that the Bank would help to promote the goals of international environmental conventions. See Wolfensohn, President, The World Bank, 'Towards Global Sustainability. Remarks to the United Nations General Assembly Special Session o n the Environment', New York, 25 June 1997.
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under the law of t r e a t i e ~ , ~international ' environmental standards represent fundamental yardsticks in the elaboration, interpretation, and application of internal policies and procedures.62 Certain internal policies and procedures do indeed explicitly refer to multilateral ~tandards.~3
Transparency and Participatory Requirements a number of As a recent trend in international de~ision-making,~4 international agreements embody requirements for transparency and public participation in international fora as necessary means to realize sustainable de~elopment.~5Increased transparency and public participation are considered to fulfil the idea that international governance needs to attain certain standards of democratization and accountability, thereby enhancing its legitimacy.66They also have a role to play in ensuring state compliance with their international environmental 0bli~ations.~7Principles on transparency and participation are found in the non-binding instruments adopted at the 1992 UNCED. The Rio Declaration proclaims that '[elnvironmental 6' For lack of space, the present article does not examine the international obligations incumbent upon the Bank. A systematic study of the international environmental rules, as well as public policy criteria, that apply to multilateral development banks' operations is found in Handl, above n. 24. b2 See Boisson de Chazournes, above n. 39, p. 297; Shih, 'The World Bank and Climate Change' (2000) 3 J Intl. Economic L p. 633. This process operates both ways, as Bank policies can in turn potentially influence the development of international law. On such a contribution see Kingsbury, abovc n. 42; Shihata, above n. 54, pp. 487-512. 63 See, e.g., OP 4.04, above n. 49, Annex A, para. (b) (i) (standards elaborated by the International Union for the Conservation of Nature (IUCN) for protected areas); OP 4.09, above n. 53, para. 6 ('World Health Organization's Recommended Classificationof Pesticides by Hazard and Guidelines to Classification'). 64 See Wirth, 'Reexamining Decision-Making Processes in International Environmental Law' (1994) 79 Iowa L Rm. p. 7 6 9 See also ILC, Rao, Special Rapporteur, Third Report on International Lzability for Injurious Consequaces Ariszng out of Arty not Prohibited by International IAW (Preventton of T m n s h n d a r y Damage born Hazardous Actimties), 9 June 2000; A/CN.q/yo, Annex, Revised draft articles, Art. 8[9] (setting forth a generally defined duty of States to provide the public with relevant environmental information). 65 See Sands, A i n n p k . ~of International Environmental Law. Volum I (1995). pp. 355-60. See also World Bank, The World Bank Policy on Disclosure of Information (Disclosure of Information Policy) (March rggq), para. 3; World Bank, Annual Report FY 1998 (1998))p. 73. For a discussion of the various legal and sociological theories applicable to the linkage between participation and legitimacy in environmental law and policy see Ebbesson, 'The Notion of Public Participation in International Environmental Law' (1997) 8 Ybk Intl. Envtl. L p. 51. Generally, see Bodansky, 'The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?'(~ggg)93 AJIL p. 596. 61312. A recent report has found that '[tlransparency is an important means of enhancing the performance and public accountability of international financial institutions': G m , Report of the Working Croup on Transparency andAccountability, October 1998 (under the heading 'Preface'). 67 See Bothe, 'The Evaluation of Enforcement Mechanisms in International Environmental Law' in Wolfrum (ed.), Enforcing Environmental Standards: Economic Mechanisms as Viabk Means? (1996) pp. 13, 19; Sachariew, 'Promoting Compliance with International Environmental Legal Standards: Reflections on Monitoring and Reporting Mechanisms' (1991)2 Ybk. Intl. Enutl. L pp. 3 1 , 33.
"
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issues are best handled with the participation of all concerned citizens, at the relevant Building on this provision, Agenda 2 1 reaffirms that '[olne of the fundamental prerequisites for the achievement of sustainable development is broad public participation in decisionmaking',69 and sets forth recommendations for broader access of civil society to environmental information and a greater role in international f0ra.7~These principles have been concretized in the Aarhus Convention on Access to Information.7' Thev are also found in several multilateral environmental treaties, including the UN Conventions on Climate Change and Biodiversity.7Transparency and participatory procedures are aimed at a wide range of beneficiaries, primarily the general public, interest groups, non-governmental organizations, and local communities. The entities or persons concerned may be entitled to receive environmental information and have the opportunity to provide input in decision- and rule-making processes on a broader basis than is ordinarily the case in the context of disputesettlement mechanisms, where a legal interest has to be shown. From this stems a broader understanding of the rights of non-state actors to act on behalf of public interests, as, with respect to such norms, 'the need to show a private interest in the issue at stake is even further reducedl.73 International organizations such as the World Bank have become addressees of transparency and participatory requirements. For example, Agenda 21 calls upon 'international finance and development agencies', amongst others to, 'in consultation with non-governmental organizations, take measures to . . . [plrovide access for nongovernmental organizations to accurate and timely data and information to promote the effectiveness of their programmes and activities and their roles in support of sustainable development'.74 The Aarhus Convention, Rio Declaration, above n. 19, Principle lo. See also Principle 22. Agenda 21, above n. 19, para. 23-2. See also UNGA Res. S--19/2, above n. 25, para. 108. See Agenda zr, above n. 19, paras. 8.2-8.3, 8.4(f) 8.11, and chap. 40. 7' Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), 25 June 1998,UN Doc ECE/CEP/43; 38 ILM ('999) P. 5'7. j 2 See UNFCCC, above n. 20, Arts. 6,7(2) (f), 7(6), 12(9) and (10);CHD, above n. 20, Preamble and Arts. 12(a), 13, and 23(5). For a survey of the incorporation of transparency and participatory principles in multilateral environmental treaties see Wiser, Center for International Environmental Law (CIEL), Transparency in ztS' Century Fitheries M a n a g m t (July 2000). In the European context, the consolidated EC Treaty gives any EU citizen or resident a right of access to documents of the Council, Commission, and Parliament, subject to 'general principles and limits on grounds of public or private interest', to be drawn up by the Council. See Treaty Establishing the European Community (FC Treaty), Art. 255. 73 Ebbesson, above n. 66, p. 57. 74 Agenda 21, above n. 19,para. 27.9(g). See also UNGA Res. S19/2 ,above n. 25, p,ara. 112.Arguing that the development of formal and transparent mechanisms allowing for a mln~mumlevel of participation in all their operations is indeed an obligatton incumbent upon international financial organizations, see Bradlow and Grossman, 'Limited Mandates and Intertwined Problems: A New Challenge for the World Bank and the IMF' (1995) 17 Human Rtghls Qpp. 411, 428-9 6R
9'
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while it does not bind such organizations, requires States parties to 'promote the application of the principles of this Convention in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment'.75 By way of response, the Bank, which has historically shown has initiated the process secrecy and lack of openness in its 0~erations,7~ of setting up a legal and policy framework for increased transparency and public participation. It aims primarily at improving the quality of loan development operations, by encouraging a better understanding of the conditions pertaining to a given project, permitting a wider representation of the interests at stake, and fostering public support and a sense of 'ownership' of the project amongst local populations.77 Policies and procedures relate first to the disclosure of information, in particular environmental information, in the course of the Bank's 0~erations.7~ Significant exceptions to disclosure stem however from confidentiality considerations.79 Secondly, a policy has been adopted that sets out general standards for involving non-governmental organizations and individuals at various stages of Bank operations.80But because it is set out in the 'good practices' format, it is not binding upon Bank staff and thus escapes the Inspection Panel's juri~diction.~'Transparency and participatory requirements apply also in the context of the Bank policies on indigenous peoples and involuntary resettlement, where they aim to assist in the elaboration of protective measures for indigenous peoples and the application of adequate resettlement measures.82
75 Aarhus Convention, above n. 71, Art. 3(7) (emphasis added). It is interesting to note that the EBRD is the only international financial organization to have explicitly implemented this provision. It has committed itself to 'take into account the Aarhus Convention, the general spirit, purpose and ultimate goals of which are subscribed to by the EBRD in the implementation of its Environmental Policy, along with other relevant international conventions': EBRD, Public Infanation Policy (ZOOO), para. I (d). See, e.g., Rich 'The Emperor's New Clothes: The World Bank and Environmental Reform' (1990) 7 World Policy Jp. 305. 77 See Aarhus Convention, above n. 71, Preamble. See also Annual Report (FY ~ g g g )above , n. 2, pp. 139-40; World Bank, Environmental Assessment Sourcebook Update,Public Consultationin t h e m Process: A Strategic Approach (May ~ggg),p. 1. 78 See World Bank, Bank Procedures, Disclosure of Operational Information (BP 17.50) (September 1993); Disclosure of Information Policy, above n. 65. These documents cover lBRD and IDA operations, as well as activities undertaken in connection with projects funded under the global trust funds. 79 See Disclosure of Information Policy, above n. 65, paras. 49-56. The World Rank indeed considers that 'the effective functioning of the Bank necessarily requires some derogation from complete openness': ibid., para. 49. See World Bank, Good Practices, Involuing Nongouernmatal Organizations in Bank-Supported Actimties (GP 14.70)(February 2000). See below n. l q q and related text. See World Bank, Operational Directive, Indigenm Peopks ( O D 4.20) (September ,991).paras. 8 and 13-18; ibid., Involuntary Resettlement (OD 4.30) (June ~ggo),paras. ~ ( c )6,, 8-g, and 30.
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Origins and Institutional Coverage The accountability of the World Bank for its compliance with the environment-related norms described in the above part of this paper may be raised before an Inspection Panel. The Panel, a permanent body set up in 1993, is a novel mechanism in international institutional law. It allows private actors to hold an international organization directly accountable for its non-compliance with internal rules and procedures. The Panel cannot address the issue of the non-compliance of (borrowing) States with environmental norms. The World Bank model has been followed in two regional multilateral development banks, the Inter-American Development Bank (IADB) and the Asian Development Bank (ADB),which set u 'Independent Inspection Mechanisms' in 1994 and 1995, respectively% Surprisingly in view of its sustainable development mandate, the EBRD has yet to implement an equivalent independent supervisory b 0 d ~ . ~ 4 The Inspection Panel was created primarily in response to concerns, both internal and external to the World Bank, over the adverse environmental effects stemming from Bank activities, as well as a marked lack of transparency and a~countability.~5 While there 'is little question that the World Bank's environmental and social rhetoric and procedures are '3 See IADB, The IADB Independent Investigation Mechanism (as amended August 2000);ADB, ADBi Inspection Pohq. A Guidebook (October 1996). The Independent Inspection Mechanisms are modelled after the Panel in terms of their overall objectives and jurisdiction, in that, broadly speaking, they aim to provide fora for local groups in borrowing countries to bring claims of the organizations' non-compliance with internal rules and procedures in the context of specific projects. They nevertheless present important institutional and procedural differences. Most significantly, the IADB and ADB maintain a roster of independent experts from which ad hoc inspection panels are drawn on the basis of a decision of the Boards of Directors of the Banks. Furthermore, both mechanisms have been virtually inactive: as yet, the LADB's Inspection Mechanism has dealt with one request only (see IADB, Independent Investigation Mechanum, Report of the Revmew Panel -Yacyreta Hydroelectric Project, 15 September 1997).while the ADB's is in the process of considering its first request, concerning the Samut Prokarn Wastewater Managemat Treatment Project in Thailand. 4' See above n. 13. Criticizing the EBRD's environmental record, see Goldberg, TheEuropean Bank for Reconstruction and Developmat: An Enviramental Progress Report (1995); Saladin and Van Dyke (CIEL), I m p h t i n g the hnciples of the Public Participation C a v e n t i a in International Organizations (CIEL Working Paper 1998))pp. 27-33. 85 For an account of the initial propositions for an inspection function at the Bank see Bradlow, 'International Organizations and Private Complaints: The Case of the World Bank Inspection Panel' (1994) 34 VirginiaJIntl. L pp. 553, 565-71. See also Cahn, 'Challenging the New Imperial Authority: The World Bank and the Democratization of Development' (1993)6 Harvard Human Rights Jpp. 159, 190 (proposing the establishment of an external 'watchdog agency' to the Bank); Wirth, 'Legitimacy, Accountability, and Partnership: A Model for Advocacy on Third World Environmental Issues' (1991) 100 Yak LJpp. 2645,2664 (recommending that of a 'private attorney general' model). See also, above n. 28.
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exemplary [wlhat is controversial is how well it follows Two reports mandated by the Bank in the early 1990sshed light on the existence of serious flaws in the loan development process, namely the Morse Commission ~ e ~ o rand t ~ the 7 Wapenhans Reporta8External pressures for an improvement in the Bank's loan development activities came most strongly from non-governmental organizations, as well as influential member countries such as the United ~tates.89These pressures crystallized during the finalization in 1993of the Tenth Replenishment of the resources of the IDA by donor countries, where the United States made its financial contribution to the IDA conditional upon the establishment of an independent scrutiny function by the World B a n k . g o These circumstances prompted the Board of Executive Directors to establish an Inspection Panel, by means of resolutions Nos. 93-10 and 93-6 (hereafter referred to collectively as the 'Resolution'), in order to provide a body competent to review, and if appropriate investigate, complaints against the Bank.9' The Inspection Panel is located within the World Bank, and has its own secretariat and budget.g2By July 2001, there had been twenty-three formal requests for inspections, of which three were not registered because they clearly fell outside the scope of the Panel's jurisdiction.93 Two reviews of R6 Gillespie, The Illusion of Progress: Sustainable Development in International Law and Policy (2001), p. 12. For an assessment of the Bank's environmental record see World Bank, Sector and Thematic Evaluation Group, OED, O m Rmzm of the Bank's Performance a the Environment (2001) (OED Environmental Review) (5 July 2001). '7 See Morse and Berger, Sardar Sarouar: Rqbort of Ihe Independent Reuiew. Morse Commission (1992). See further Khan, 'Sustainable Development, Human Rights and Caod Governance-A Case Study of India's Narmada Dam' in Ginther, Denters, and De Waart (eds.), Sustainable Development and Good p. 420. Governance (1995)~ See World Bank, Wapenhans, Report of the World Banki Portfolio Management Task Force-Effecective I m p h t a t i o n : Key toDevelopment (1992). See further Fauteux, 'Multilateral Lending Activities' (1993) 4 Ybk. Intl. Envtl. L pp. 286, 287. '9 See generally Bowles and Kormos, above n. 17. See also the US International Institutions Act as amended by the 1989 International Development and Finance Act (so-called Pelosi Amendment), under which the US Executive Director must abstain from any vote on a project that would have a significant impact on the environment unless an environmental assessment has been made available to local project-affected groups and non-governmental organizations, as well as to the Board of Executive Directors, 120 days in advance of the vote. This requirement is however not applicable when there are compelling reasons to believe that disclosure would jeopardize the confidential relationship between the borrowing country and the Bank. See IDFA 1521, 103Stat at 2511 (codified as amended at 22 USC 1262m-7 (1988)). go See Shihata, above n. 40, p. 9. 9' See IBRD Resolution No. 93-10 and IDA Resolution No. 93-6, The Wmld Bank Inspection Panel, 22 September 1993, 34 ILM (1995) p. 520. See also ibid., IBRD/IDA, qberalingProcedu7es ar &opted by the Panel on August 19, rggg (Operating Procedures); ibid., Administrative Procedures of the In.@ction Panel (Administrative Procedures) (as amended by the Panel to July 1998). g2 See Resolution, above n. 91, para. 11. The Panel's budget from I August 1999 to 31 July 2000 amounted to approximately USQ12.2million. See Inspection Panel, AnnualReport. August I , rggg toJuly 31, 2000 (2001), p. 68. 93 For an updated status, see URL .Accounts of the Panel's first 4 years have been made by its two former Chairmen: Bissell, 'Recent Practice of the Inspection Panel of the World Bank' (1997)91 AJIL p. 741;and Umafia Quesada (ed.), The Inspection Paanel: TheFirst F a r Yean (1998).
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the Panel's work by the Executive Directors have taken place, in 1996and 1999,resulting in the adoption of 'clarifications' (hereafter the '1996 and 1999 Clarifications') .94 These clarifications are considered, from a legal standpoint, 'authoritative commentaries' on specific points of the
Resolution establishing the Panel, including general interpretations of
notions found in the text, and flexible practices developed under it and approved of by the Board, which is vested with the authority to interpret the Panel's governing text.95 As seen below, the 1999 review, which was initiated as a result of serious tensions within the organization's Board of Executive Directors over matters related to the Panel, was particularly significant, as the resulting clarifications represented an overall endorsement of the Panel by the Bank. The Inspection Panel's institutional coverage is limited to the IBRD and the IDA. It does not currently extend to private sector activities ~ which a Compliance within the IFC and the M I G A , ~ for Adviser/Ombudsman (CAO) was established in 1998.97 Under the Ombudsman role, the CAO can respond to complaints by persons who are affected, or are likely to be affected, by the social and environmental impacts of IFC and/or MIGA funded projects, and addresss the issues raised using a flexible and problem-solving approach.q8 In this capacity the CAO has to date received a total of nine formal complaints, of which seven have been accepted, and one has been closed.99 Complaints may be received that are being dealt with in parallel by the Inspection Panel, in cases where projects are jointly financed by IFC or MIGA and the World Bank. The CAO, unlike the Panel, has been granted the additional function of undertaking compliance audits of IFC and MIGA's social and environmental performance, as well as advising and assisting both institutions on 9 See World Bank, Review of the Resolution Establishing the Inspection Panel: Clanjication of Certazn Aspects of the Resolution (17October 1996);ibid., Conclusions of the Board's Second Reuiew of the Inspection Panel (20 April 1999). 95 See Schlemmer-Schuke, 'Introductory Note to the Conclusions of the Second Review of the World Bank Inspection Panel' 39 ILM (2000) p. 243, 244; Shihata, The World Rank Inspectton Panel: In Practice, 2nd edn. (ZOOO), pp. 155-203. 9"he IFC engages in financing for private enterprises without government guarantee, while the MIGA provides guarantees against various types of noniommercial risks faced by foreign private investors in developing countries. 97 See IFC, Operational Guidelines for the Office ofthe lFC/hUGA Compliance Advisor Ombudsman (CAO Operational Guidelines) (2000). The CAO was created following an independent review mandated by the Bank's President to assess the IFC's compliance with applicable social and environmental guidelines in the Pangue/Ralco hydroelectric project, which was deemed to fall outside the Inspection Panel's jurisdiction. See Inspection Panel, Request for Inspection-IFC Financing of Hydroelectric Dams in the BioBio River in Chile (INSP/SecMg-8), I December 1995; Hair, PanguePrqect Jay Hair Rev& w o r t (IFC Report No. 2067) (15July 1997). g8 See CAO Operational Guidelines, above n. 97, para. 1.1.2 ( I ) and Section 2. 99 The complaint concerned the Jordan Gatmay Project, and was submitted in December 2000. At the time of writing, the CAO report was not yet available. See URL .
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controversial projects or on specific policies and procedures (Compliance and Advisory roles) .Io0 While the Resolution contains no explicit mention of the point, the functions of the Panel apply to the Bank's role as trustee and main implementing agency of the GEE and other multilateral environmental trust funds such as the MEMP.'O1 This interpretation is confirmed by the Board's implicit acceptance of the Panel's assertion of jurisdiction in requests involving GEF-financed projects.Io2 The establishment of the Inspection Panel thereby widens the possibilities for establishing accountability in the context of global trust funds. The fact that 'secondary' trust beneficiaries other than States, such as locally affected groups and non-governmental organizations, have standing to invoke the Bank's duties as trustee and implementing agency-to the extent that they are embodied in rules subject to review by the Panel-may evidence an evolution toward the wider recognition of beneficiaries' rights in the context of the ownership of trust funds.1°3 Composition
The Inspection Panel is composed of three panellists of different nationalities from Bank member countries.'O4 The Resolution does not require more specific geographic representativeness, nor gender balance. The Panel has until now traditionally consisted of two Westerners and one national of a developing country. The first woman panellist was elected in July 1999. Panel members are nominated by the Bank's President after consultation with the Executive Directors.Io5 Candidates for appointment to the Panel are required to possess an 'exposure to developmental issues and to living conditions in developing countries', an 'ability to deal thoroughly and fairly with the requests brought to them', as well as 'integrity and . . . independence from the Bank's ~ a n a ~ e m e n tWhile ' . ~ ~there ~ are n o requirements concerning the legal, technical, or scientific expertise of panellists, they have the See CAO Operational Guidelines, above n. 97, para. 1.1.2(2) and (3) and Sections 5 and 6. See Shihata, above n. 95, pp. 34-5 (spec@ng that the Panel'sjurisdiction does not extend to issues of compliance with other policies and procedures adopted separately by the GEF Council, unless the Bank agrees otherwise or these policies and procedures are integrated in Bank documents). '02 See Inspection Panel, w o r t and Recornmadation olt Request for Inspection concerning India: Ecodmelopmenf Ryect Rajiv Ghandi (Nagarahole) Natiunal Park (Credit No. zgrG-m, GEF TmstFund Grant No. TF028479 ZN), 21 October 1998; ibid., Investigation Report on h y a : Lake Vtcta'a Environmental Management Project ( D A Credit 2907-KE and GEF TFz38rg), 20 December 2000. 1°3 See Redgwell, Intergenerational Trusts and Environmtal Protection (rggg), p. 171; Sand, 'Trusts for the Earth: New International Financial Mechanisms for Sustainable Development' in Lang (ed.), Sustainable Development and International Law (1995)pp. 167, 180. 'O4 See Resolution, above n. 91, para. 2. 1°5 See ibid. '06 See ibid., para. 4. '0°
'OL
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possibility to consult external expert~.'~7 Panellists are however required under the Resolution to seek the advice of the Bank's Legal Department on matters related to the Bank's rights and obligations.lo8 Bank staff cannot serve on the Panel until two years have elapsed since the end of their service in the World Bank Croup, and panellists cannot be reemployed thereon at the end of their term.I0g Panel members serve a non-renewable five-year term of office."O The Executive Directors decide on their remuneration and removal from office 'for cause'.lH Panel members work on a full-time basis when the workloadjustifies such an arrangement, as recommended by the Panel and approved by the Bank's Board of Executive Directors.II2 Normally, however, only the Chairperson works on a full-time basis, and the other two members are called upon when actual requests for inspection or other Panel business require their presence."3 Panellists are considered Bank officials. They thus enjoy related privileges and immunities and are subject to the 'requirements of the Bank's Articles of Agreement concerning their exclusive loyalty to the Bank' and to the Bank's applicable Staff Principles.114 Jurisdiction The jurisdiction of the Inspection Panel is assessed during the first phase of its functions, that is, when determining on a primafacie basis the eligibility of submitted requests."5 This determination enables the Panel to make a recommendation to the Executive Directors on whether or not the matter should be i n v e ~ t i ~ a t e dThe . " ~ Panel's jurisdiction is tested with regard to considerations of time, standing, and applicable law. Temporal Jurisdiction The Inspection Panel's jurisdiction is subject to three limitations in terms of time. First, the Panel represents a mechanism of 'last recourse'. It has jurisdiction only after the requester has exhausted other avenues within the Bank,117 i.e., has submitted the request to the Bank's 'O7 See Operating Procedures, above n. 91, para. 45(e); Administrative Procedures, above n. gr, paras. 49-50. lo* See Resolution, above n. gr, para. 15; 1999Clarifications,above n. 94, para. 6. See Resolution, above n. 91, paras. 5 and lo, respectively. 'I0 See ibid., para. 3. "' See ibid., paras. ro and 8, respectively. 'I2 See Administrative Procedures, above n. 91, para. 18. "3 See Resolution, above n. 91, para. g. "4 Ibid., para 10. "5 The second phase of the Panel's functions consists in the investigation process, which is treated below. It is only at that time that the merits of the request are dealt with. l B 6 See Resolution, above n. 91, para. 19;Operating Procedures, above n. 91, para. 37. "7 Under the Resolution, the exhaustion of local remedies is not a requirement for bringing a claim to the Panel. However, in determining the alleged harm, the Panel has found that requesters need to exhaust all possible legal remedies available to them prior to bringing a complaint. See
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Management, which has then failed to provide the Panel, within twentyone days, with evidence that that it has complied, or intends to comply, with the applicable norms.rr8The Panel begins its review of the eligibility of the request within twenty-one days from the response of Management."g Secondly, the Panel is not competent to receive requests '[rlelated to a particular matter or matters over which the Panel has already made its recommendation upon having received a prior request, unless justified by new evidence or circumstances not known at the time of the prior request'.12oThirdly, only requests involving the allegation of harm which has occurred or is likely to occur as a result of proposed or on-going projects-that is, during the design, appraisal, and implementation phases of the project cycle-can be brought before the Panel.12'The Panel's jurisdiction, accordingly, does not extend to requests filed after the closing date of the loan financing the project with respect to which the request is filed, or after the loan financing the project has been substantially disbursed.122In the case of complex projects involving several loans, both the Panel and the Bank's General Counsel have confirmed that a request is not time barred if a project initially funded by a Bank loan which has been fully disbursed is subsequently financed by a supplemental loan which has yet not been disbursed.123 Personal Jurisdiction One of the most important features of the Panel's jurisdiction is that it gives standing to third parties, including private parties. Traditionally, international financial organizations such as the World Bank have been perceived as having no direct relationship with individuals, interest groups, and local communities in borrowing countries, and thus no direct accountability to them. Non-state actors have also been generally denied access to international judicial or quasi-judicial fora.I24 Consequently, the Inspection Panel, +art and Recommendation on Request of Inspection cacerning Lesotho: Lesotho Highlands WatmProject (Loan No. 4.vg-LSO), 2 3 July 1999. ""ee Resolution, above n. 91, paras. 13 and 1618; 1999Clarifications,above n. 94, para. 4. "9 See Resolution, above n. yr, para. rg; 1999 Clarifications, above n. 94, para. 8. ' 2 0 Resolution, above n. 91, para. q ( d ) . 12' See ibid., para. 12. I z 2 Disbursement is considered to have taken place when at least 95% of the loan proceeds have been disbursed. See ibid., para. q ( c ) (n. I ) . 123 See Inspection Panel, Request for Inspection-Brazil: Itapanca Resettlemat and Irrigation Pmject (lNSP/Rgg7-7),27 June 1997; Legal Opinion of the Senior Vice President and General Counsel, Time Limits on the Elzgibility of Complaints Submitted to the Inspection Panel (SecMg7+93), 28 July 1997, internal document cited in Schlemmer-Schulte 'The World Bank's Experience With Its Inspection Panel' (1998) 58 Zeitschnftefur ausliindischer o;rfmtliches Recht pp. 353, 371, n. 84. 124 See Nguyen, Dailler, and Pellet, Droit intaational public (6th edn., rggg), para. 444. There are of course a number of exceptions. Under the law of international organizations, administrative tribunals may be established, as is the case within the World Bank, to address disputes between the organizations and their staffs on the application of internal staff regulations. See Amerasinghe. The Law of the International Civil Service (2nd edn., 1994) W i l e the European Community remains a unique case, the ECTreaty grants remedies for individuals against actions and omissions of
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right for such actors to '[elffective access to judicial and administrative proceedings, including redress and remedy', in the international context as well as the domestic one, has been anchored in the UNCED instr~ments.'~5 This principle is implemented in the Aarhus c on vent ion."^ The establishment of the Inspection Panel responds to such calls and creates a legally significant relationship between third parties and the Bank, i.e., without the intervening presence of the member States.127 The standing of non-state actors before the Panel depends upon three conditions. First, requesters cannot be a single individual, but must be a 'community of persons such as an organization, association, society or other grouping of individual^'.'^^ This community of persons must moreover represent a 'commonality of interests', that is, the persons must share some 'common interests or concerns'.129 The community of interest need not precede the events that led to the request for inspection, but may result from the sharing in the alleged harm that causes affected parties to act together.'s0 (in contrast, the IFC/MIGA CAO's jurisdiction extends to submissions by single individuals who are affected, as well as by loose aggregations of individuals that do not necessarily have a 'commonality of interests').l3' Secondly, requesters must be located 'in the territory of the borrower'.'Y This means that such
Community institutions. See EC Treaty, Arts 230(3), 232(3), and 235 in connection with Art. 288(2). Furthermore, non-state actors are granted the right to file complaints before international tribunals under international and regional international h u n ~ a nrights instruments, albeit only with regard to claims against States. Finally, it is noteworthy to mention here that under the North American Free Trade Agreement (NAFTA), different forms of direct access by private parties to inter-state settlement procedures are provided. See North American Free Trade Agreement, 8 December 1992, 32ILM (1993) p. 289. See in particular the process of 'Submissions on Enforcement Matters' established by the North American Agreement on Environmental Cooperation (NAAEC) concluded under NAFTA, which provides a forum for residents including non-governmental organizations of any of the parties to allege a party's 'failure to effectively enforce its environmental laws'. North American Agreement on Environmental Cooperation, 8 September 1993, found at URL ), Arts. 14-15. 125 Rio Declaration, above n. 19, Principle 10. See also Agenda 21, above n. 19,paras. 8.18and 27.13. See generally Cameron and Mackenzie 'Access to Environmental Justice and Procedural Rights in International Institutions' in Boyle and Anderson (eds.), Human Rights Approaches to Enuironmatal Protection (1996) p. 129. Iz6 See Aarhus Convention, above n. 71, Art 9. 127 On the impact of the Panel o n the position of individuals in international law, see Bradlow and Schlemmer-Schulte. 'The World Bank's New Inspection Panel: A Constructive Step in the Transformation of the International Legal Order' (1994) 54 Zeitschrijfkr ausliindisches oyfathches Recht und Vokerrerht pp. 392,402-6; Hey, 'The World Bank Inspection Panel: Towards the Recognition of a New Legally Relevant Relationship in International Law' (1997) 2 Hofstra L 15'Poliq Symposium p. 61. r 2 ~ e s o l u t i o nabove , n. 91, para. 12. This provision makes clear that both legal and natural persons are concerned. I2q 1996 Clarifications, above n. 94, (under the heading 'Eligibility and Access'). See also Shihata, Legal Opinion of the Senior Vice President and General Counsel, 'Role of the Inspection Panel in the Preliminary Assessment of Whether to Recommend Inspection', 34 ILM (1995)pp. 525,527-8 '3O See Shihata, above n. 95, p. 60. '3' See Operational Guidelines, above n. 97, para. 2.2.1. '3* Resolution, above n. 91, para. 12.
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groups must have a real territorial presence, which, in the case of associations and other incorporated entities, implies that they should have substantive activities in the territory.'33 Thirdly, requesters must be 'affected' parties, i.e., parties whose 'rights or interests have been or are likely to be directly affected by an action or omission of the Bank' which has had, or threatens to have, a 'material adverse effect'.'34 According to the Bank's former General Counsel, the terms 'rights' and 'interests' should be given their usual legal meanings.'35 In other words, they include not only titles, powers, and privileges granted by law, but also the avoidance of physical, financial, or intangible harm that otherwise affects the requester. For assessing the material adverse effect, 'the without-project situation should be used as the base case for comparison, taking into account what baseline information may be available'.13~ Requesters can be represented before the Panel either by local representatives, or, upon authorization of the Executive Directors, by foreign representatives in the 'exceptional cases' where appropriate representation is not locally available.'37 This provides the opportunity for requesters from developing nations to be represented by Western non-governmental organizations with better resources. For instance, a US-based organization represented the local project-affected people before the Panel in the China Request.138 In addition to external requesters, requests for inspection can be submitted by any individual Executive Director of the Bank, or by the Executive Directors acting as a Board. This competence arises ' [i]n view of the institutional responsibilities of Executive Directors in the observance by the Bank of its operational policies and procedures'.'39 When an Executive Director acts alone, an investigation may be requested only 'in special cases of serious alleged violations of policies and procedures', whereas when the Directors act as a Board, they may 'at any time instruct the Panel to conduct an investigation'.'4O See Shihata, above n. 95, p. 62. Resolution, above n. 91, para. 12. Note that the 'affected party' cannot be the borrower itself, as disputes arising between the Bank and borrowing states are to be settled by negotiation or arbitration under the general conditions applicable to loan agreements. See IBRD, General Conditions Applicable to Loan and Guarantee Agreements (1995). Furthermore, complaints from suppliers, contractors, or losing bidders against procurement decisions under Bank-financed projects are excluded. See Resolution, above n. 91, para. 14(b); 1996 Clarifications, above n. 94, (under the heading 'Eligibility and Access'). '35 See Shihata, above n. 95, pp. 5657. 1 3 1999 ~ Clarifications, above n. 94, para. 14. '37 See Resolution, above n. gr, para. 12; Operating Procedures, above n. gr, para. 39. '3R See below n. 201 and related text. '39 See Resolution, above n. gr, para. 12. See also IBRD Articles ofAgreement, above n. 12, ArtV(4) (providing that the Executive Directors of the Bank are responsible collectively for the conduct of the general operations of the Bank). '4' See below n. 204 and related text. '33 '34
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Subject-matter Jurisdiction The Resolution establishing the Panel provides that a request is admissible only when it invokes a causal link between the alleged harm and a 'failure of the Bank to follow its operational policies and procedures with respect to the design, appraisal and/or implementation of a project financed by the Bank (including situations where the Bank is alleged to have failed in its follow-up on the borrower's obligations under loan agreements with respect to such policies and procedures)'.'4' The alleged violation must, furthermore, be of 'a serious The Resolution thus expressly limits the scope of the applicable law to internal Bank norms that have a binding character, namely OPs, BPS, ODs, and 'similar documents before these series started'.'43 Non-binding documents such as 'Guidelines and Best Practices and similar documents or statements' are excluded from the Panel's jurisdiction.'@ They may however be used by the Panel in interpreting and assessing levels of compliance with binding instruments.I45 The scope of the applicable law is also curbed in that requests can allege only violations of binding operational policies and procedures when they apply to a Bank 'project'. The latter term has its ordinary meaning in Bank practice. It thus includes all types of programmes and development-assistance activities.'@ The determination of what constitutes a 'policy related to a Bank project' may be ambiguous in two instances. In the case of expropriation, the Panel found eligible a request alleging Bank non-compliance with its policies on expropriation.'47 Management in that case did not contest the Panel's jurisdiction over the ~ o m ~ l a i n t .The 1 4 ~ second instance concerns Bank policies arising in the course of adjustment operations, which involve the financing of broad macro-economic policy, structural or sectoral adjustment measures '4' Resolution, above n. 91, para. 12. See also ibid., para. rq(a); 1999 Clarifications, above n. 94, paras. 3(ii-iv) and 12. '42 Resolution, above n. 91, para. 13. '43 Ibid., para. 12. As described earlier in this article, there exist some ambiguities with regard to the binding force of standards embodied in the documents that preceded the OP/BP/GP format. ' w Resolution, above n. 91, para. 12. '45 See Kingsbury, above n. 42, 331. 1 4 See ~ 1996 Clarifications on the interpretation of the term 'project', above n. 94 (under the heading 'Eligibility and Access). See also IBRD Articles of Agreement, Art. III(4)(vii); IDA Articles of Agreement, Art. V(I) (b), above n. 12. '47 See Inspection Panel, liqbort and Recommendation on Kequest of Inspection concerning Lesotho: Lesotho Highlands Water Project (Loan No. $339-LSO), 23 July 1999.The Panel did however not recommend an inspection, in the absence of adirect link between any actions or omissions of the Bank and the harm claimed by the requesters. Management thereby departed from its prior position, which held that expropriation fell outside the scope of the Panel's mandate. See Inspection Panel, R e p s t for Inspection-Compensation for Expropriation and Extension of IDA Credits to Ethiopia, March 1995 (the request was not registered by the Panel on the basis that the requesters had not shown that the failure of the government to compensate them was caused by IDA'S continued lending to Ethiopia).
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rather than a specific project.'49 In one request involving adjustment lending, the Panel made clear that the term 'project' as used in the Resolution means that adjustment operations fall under the scope of its mandate, although Bank Management disagreed.'s0 The Panel found the request eligible but did not recommend an inspection, thereby precluding discussion of the matter by the Board. There nevertheless appears to be a consensus amongst commentators that the term 'project' as used in the Resolution is understood in Bank practice to include programme or sectoral loans.'5' The Investigation Process
Once a request for inspection has been deemed prima facie eligible, the Panel is competent to consider its merits by conducting an investigation into the facts. Under the Resolution, the initiation of the investigation process is not a matter for the Panel itself to decide. It may only recommend an investigation: the decision-making power belongs to the Executive Directors upon receipt of the Panel's recommendation, and there is no specific time-limit for the Board's decision to be made.152 During the first five years of the Panel's existence, the Executive Directors seldom authorized investigations. Between 1994 and 1999, the Panel recommended six investigations, of which only two were authorized (limited in scope). As a result, the Board's competence to authorize investigations was perceived to undermine the mechanism's independence, effectiveness, and credibility.ls3 The Panel's former Chairman remarked that '[tlhe formation of 'alliances' among [borrowing countries] to block investigations has been effective and represents one of the most fundamental threats to the effectiveness of the inspection function7.'54 The scarcity of Panel investigations was also due to the practice developed by Management of proposing remedial action plans addressing the deficiencies of the project in question before the Board had taken a decision on a Panel recommendation, thereby averting an inspection. In these cases, the Board, instead of authorizing an
'49 See IBRD Articles of Agreement. Art III(4) (vii); IDA Articles of Agreement, Art V(1) (b), above n. 12. See Inspection Panel, Request for Inspection-Bangladesh: Jute Sector Adjustment Credit, Panel W m t and Recornm~ndation(INSP/@73), 2 0 March 1997. '5' See Forget, ' t e 'panel d'inspection' de la Banque Mondiale' [1gg6] Annuairefran~aisde Droit Inlernationalpp. 645,655; Shihata, above n. 95, pp. 37-41. '5? See Resolution, above n. 91, para. 19. See also 1996 Clarifications, abovc n. 94 (under the heading 'Role of the Board'). '53 See, e.g., Hunter (CIEL) and Udall (International Rivers Network), The W d d Bank's New Inspection Panel: Will it Increase the Bank's Accuuntability ? (CIEL Working Papers 1994). '54 Umada Quesada, above n. 93, p. 325.
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inspection, adopted the action plan while giving the Panel a role in supervising its implementation. Although these action plans provided some relief to requesters, and allowed the Panel to have a role in monitoring, they were criticized by the Panel itself as well as outside commentators as n ~ n - ~ a r t i c ; ~ a taimed o r ~ , at avoiding kvestigations, and
undermining the body's independence from the Bank.Is5 The above mentioned trends were reversed as a consequence of the 1999 review. The Board agreed that it would authorize investigations recommended by the Panel without questioning the merits of the claim and without discussion except with respect to certain eligibility criteria,15~ thus 'further reduc[ing] any impediment to the authorization by the Board of investigations by the Panel through making an investigation the normal and automatic result of a Panel recommendation in favor of such investigation'.I57 The Board has, since the approval of the 1999 Clarifications, authorized all three investigations recommended by the ~ a n e l . 1The 5 ~ second review furthermore resulted in the prohibition of the submission of remedial action plans by Management during the eligibility phase;'59 it however also banned any involvement of the Panel in the follow-up of remedial m e a s u r e s . ~ ~ ~ Once an investigation has been authorized by the Board, the Kesolution determines that the Panel is to conduct the investigation of all relevant fdcts, allowing it to reach conclusions on whether the Bank has been in serious violation of its operational policies and procedures with res ect to the design, appraisal, and/or implementation of the project." The Resolution does not expressly provide for provisional measures pending the outcome of the investigation, even though such measures could potentially prevent the prospective continuation of the project work from making the alleged harm irreversible. Unusually, provisional measures ~ ~ conduct of an were adopted by the Board in the China ~ e ~ u e s tIn. ' the investigation, Panel members have access to Bank staff who may contribute information, and to all pertinent Bank records.1~3 They can also carry out field visits, subject to the consent of the borrowing state.164Public hearings
R
'55 See ibid., 324 ('[bly introducing these Action (or reaction) Plans, Management effectively preempts or delays . . . the Panel's further involvement'). ~5"ee 1999Clarifications, above n. 94, para. 9. '57 Schlemmer-Schulte,above n. 95, p. 246 (emphasis added). 'sR At the time of writing, the Panel's recommendations on the three subsequent requests (which concern the Chad Petroleum Developmat and Pipeline Project, the India Coal Sector Environmental and Social Mztzgatzon Project, and the Uganda Third and Fourth Power Pmject, respectively) are still pending. '59 See 1999Clarifications, above n. 94, para. 16. 1 6 0 See below n. 259 and related text. '" See Resolution, above n. 91, para. 22; 1999Clarifications, above n. gq, para. 13. See below n. 199 and related text. 163 See Resolution, above n. 91, para. 21. '4 Ibid., para. 21. Under para. 36 of the Operating Procedures, above n. 91,field visits can also take place for purposes of determining the eligibility of requests. See Inspection Panel, Investigation &port on Ecuador Mining Development and Enuironmental Control Technical Assistance Project (Loan Number365jEC), 23 February 2001.
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in the project area may be conducted.@ Panel members can seek written or oral submissions from the requesting party, Bank staff, and other entities.166The Panel is also entitled to use 'any other reasonable methods the Inspector(s) consider appropriate to the specific investigation'.167 The Panel concludes its investigation with a report comprising 'findings'. If consensus cannot be reached, the Panel's report states the 'majority and minority views'.168Panel reports consist of a discussion of the relevant facts and steps taken to conduct the investigation, conclusions on the degree of compliance on the part of the Bank with relevant policies and procedures, and an appendix of supporting do~uments.'~9 Findings are not binding,'7O nor can they encompass recommendations on further action. The power to submit to the Board recommendations for remedial action belongs to Management, which must submit a report within six weeks from the receipt of the Panel's findinpr7' The final decision on the adoption of remedial action is taken by the Board itself, on the basis of both the Panel's and Management's report~.'7~
Transparen9 and Participatory Requirements The Resolution provides for certain requirements in terms of transparency and public participation during the Panel process. With respect to information disclosure, first, the Bank must make publicly available certain categories of documents arising during the Panel process. These documents include requests for inspection, Panel recommendations and reports on investigations, Management responses and reports, and Board decisions thereon.'73 Panel-related documents are, however, kept confidential until after they have been considered by the Board. The opinions of the General Counsel related to inspection matters are made publicly available 'promptly' after the Executive Directors have dealt with the issues involved, 'unless the Board decides otherwise in a specific case'.I74 The annual report furnished by the Panel See Operating Procedures, above n. 91, para. 4j(b). See ibid., para. 45(a) and (d). 167 Ibid., para. 45(g). '68 Resolution, above n. gr, para. 24. 169 See Operating Procedures, above n. 91,. para. 52. '7" The Panel has decision-makingpowers regarding procedural matters related to its work. It has adopted in this regard its Operating Procedures and Administrative Procedures. See Resolution, above n. 91, para. 24. '7' See ibid., para. 23. Management's report to the Board provided here must be distinguished from 'action plans' agreed between the borrower and the Bank, in consultation with the requesters, that seek to improve project implementation. See 1999Clarifications, above n. 94, para. 15. '72 See Resolution, above n. 91, para. 23. '73 See ibid., para. 25; 1996 Clarifications, above n. 94, (under the heading 'Outreach'). '74 See 1996 Clarifications, above n. 94, (under the heading 'Outreach'). 165
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to the Bank's President and the Executive Directors is also made publicly available.'75 More generally, the Resolution requires the Bank to make the Inspection Panel better known in borrowing c0untries.'7~ Provisions in the Resolution granting participatory rights to requesters
during the Panel procedure are limited.177 Requesters are notified of the Panel reports and Board decisions only at the same time that these documents are disclosed to the public.178Furthermore, the Resolution does not explicitly refer to any rights of complainants to receive and respond to communications between the Panel and other interested parties, nor to participate in the Panel proceedings after the submission of the request. While it mandates the Panel to consult with both the Bank and the borrower country before it issues its recommendation on inspection, and during the investigation itself, the Resolution makes no reference to consultation with the requester.I79 The Operating Procedures, on the other hand, allow the requester to provide the Panel with supplemental information that is relevant to evaluating the request.18~The 1999 Clarifications furthermore encourage the Panel to consult affected parties during on-site visits,18' and require that information provided to requesters must be in their language, to the extent possible.182The Panel has in practice consulted with affected individuals and local communities or groups before reaching its and Kenya conclusions, most recently in the china,183 ~cuador,'~4 Requests.185 The Resolution does not mention the existence of participatory rights for third parties to the procedure. The Panel's Operating Procedures do, however, enable external observers to submit amicus curiae briefs during the processing of requests, if they show that they have an interest in the results of the inspection.186This was the case, for instance, in the course '75
See Resolution, above n. 91, para. 26.
v6 See lggg Clarifications, above n. 94, para. 17. See also Operating Procedures, above n. gr, para. 57. '77 On the inadequacies of the rights of the requester in the procedure see Bradlow, above n. 85, PP. 584-5 and 591. See Resolution, above n. gr, paras. rg and 23, respectively. '79 See ibid., para. 21. See Operating Procedures, above n. 91, para. 47. la' See 1999 Clarifications, above n. 94, para. 12. Para. 16 also allows the Panel to submit to the Executive Directors a report on the adequacy of consultations with affected parties in the preparation of action plans. See ibid., para. 18. '*3 See below. "4 See Ecuador Request, above n. 164. I R 5 See Kaya Request, above n. 102. See Operating Procedures, above n. 91, Preamble. On the involvement of nongovernmental organizations in international litigation by means of the submission of amicus briefs, see generally Shelton, 'The Participation of Nongovernmental Organizations in International Judicial Proceedings' (1994)88 AJIL p. 611. For comparative purposes, it is noteworthy that the submission of amicus curiae briefs to the WTO adjudicating bodies has been very restrictive. See CIEL, 'A Court Without Friends?,' Press release of 22 November 2000; Marceau and Stilwell, 'Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating Bodies' (2001) 4 JIntl. Economic L p. 155.
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of the N I ' P C ~and ~ China Requests.188The Panel can also request parties, such as requesters, governmental officials, or NGO representatives, to attend meetings and submit written or oral submissions on specific issues.189Any member of the public may, without having to show a direct interest, provide the Panel with a brief written document containing information relevant to the investigation.'gOA further significant role for third parties relates to the participation of external observers in the periodic reviews of the Inspection Panel. During the 1999 review, the undertaking of an informal meeting between members of the Working Group established to conduct the review and some United States and United Kingdom NGO representatives marked the first time that a report submitted by a Board Committee to the Board was discussed with private parties outside the Bank before presentation to the Board.'gl Another unprecedented step was the setting up of an informal meeting between the full Board and several NGO representatives.'g2
Issues at Stake and Submission of Request The sixteenth request brought to the Inspection Panel was a landmark case, which usefully illustrates the mechanism's procedural and substantive features. It also raises fundamental questions regarding the interpretation and application of the Bank's safeguard policies, as well as compliance control. The main objective of the China Western Poverty Reduction Project was, according to the Bank, 'to reduce the incidence of absolute poverty in remote and inaccessible villages of Gansu and Qinghai Provinces and Inner Mongolia Autonomous Region'.'93 The Qnghai component (hereafter referred to as the 'Project'), which was the one challenged before the Panel, aimed to alleviate poverty through the voluntary resettlement of 57,775 poor farmers from the so-called 'move-out area' into an area covered by a new irrigation project in the Tibetan and Mongolian Autonomous Prefecture in Dulan County, inhabited by 4,000 people (the 'move-in' area).'g4 Within the move-in '9 Inspection Panel, &que.it for Inspection-India: NTPC Powm Gewation Project, Panel Report and Recornmadation (n\rSP/Rg7g), 25 July 1997. See Bissell, above n. 93, p. 743. lER See below 11. 207 and related text. '% See Operating Procedure above n. 91, para. 45 (a) and (d). 'go See ibid., paras. 5-1. '9' CIEL and the Bank Information Center (BIC) were two of the main organizations involved. ' g 2 See Bradlow, 'Precedent-Setting NGO Campaign Saves the World Bank's Inspection Panel', 6 Human Rights Bnef (1999). '93 World Bank, Prqect Appraisal Documatfor the Western Pwerty Reduction Project, I June 1999,Report No 189826HA, p. 3. '94 See ibid., World Bank Approues China Western Pouovog Reduction Project, Press Release, nqJune rggg.
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area, the Project would renovate an existing eight metre dam, and construct a new forty metre one; it also involved the construction of two canals to supply water for irrigation. The Bank was to finance the equivalent of US$160 million of the total US$311 million for the project,
of which US340 million were intended for the Qinghai component.
The Project clearly raised issues of the assessment of the consequences of resettlement, the impacts upon the lives and culture of indigenous peoples and minorities, ecological damage resulting from resettlement and major agricultural and construction programmes, as well as the importance of effective transparency and public participation. The Bank was bound by certain obligations under its internal policies and procedures to ensure that these factors were adequately taken into consideration during project preparation and appraisal, to provide China with the means to do so during project implementation, and to supervise the country's compliance with the terms of the loan agreement. A counter-balancing" factor was the Bank's will to limit its mandate in terms of non-interference in domestic political affairs, particularly with regard to human rights issues.'95 Mounting public criticism of the Qinghai Project arose in 1999, spurred by Tibet support groups, as well as human rights and environmental organizations. Despite proposals for improvement by Bank Management, a request for inspection was submitted on 18June 1999 to the Inspection Panel by the International Campaign for Tibet (ICT), a US-based nongovernmental organization acting on behalf of affected people living in the prqject area.'g6 The requesters claimed that the implementation of the Project would adversely affect the lives and livelihoods of Tibetan and Mongolian ethnic peoples, and cause irreparable environmental damage. Moreover, they alleged that it would cause a serious risk of escalation of ethnic tension and resource conflicts in the area. The request argued that the alleged harm was the result of actions and omissions in the preparation and appraisal of the project by Bank staff, in violation of several policies and procedures, including those on information disclosure, environmental assessment, indigenous peoples, involuntary resettlement, agricultural pest management, and safety of dams.Ig7 The requesters affirmed that they had repeatedly raised their concerns with Bank Management. Management's response1g8to the request argued that the Project was in compliance with all relevant Bank policies, save for those on information disclosure. Management also pointed out that a number of improvements had been made to the '95 See IBRD Articles of Agreement, above n. 12, Arts III(5) (b) and N ( l o ) ,discussed above at n. 16. '@See International Campaign for Tibet (ICT), Request for Inspection: China W e s t a Poverty 18)June 1999,INSP/Rgy6. Reduction Project (Credit No32550 CHA and Loan No ~ ~ o I - C H A , '97 On these documents, see above nn. 46-53 and related text. 'g8 See World Bank, Managemnl Response lo the &quest for Impection Sutnnitled to the Inspection Panel: China Western Pormty Reductzon Project (Credit No.72550 CHA and Loan No 4501-CHA), 19July 1999.
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Project since public concerns had been raised. The Bank's Board of Executive Directors decided on 24 June 1999 to proceed with the financing of the Project notwithstanding the request, but applied what amounted to provisional measures by making its decision conditional upon the fact that no work was to be done and no funds disbursed for the Qinghai component pending the Board's decision on the results of any review by the Panel.'99
Jurisdictional Aspects and Investigation Process On the basis of the request for inspection and Management's response thereto, the Panel first addressed the threshold issue of the eligibility of the complaint.200For the first time, a request involved the representation of the project-affected people by an international non-governmental organization, the ICT, on the grounds that no appropriate local representation was available. ICT's representational authority, which was based on the organization's 'long-standing involvement in the project area and its mandate to advocate on behalf of the interests of the Tibetan people', was endorsed by the Board.2o1Having verified the eligibility of the request, the Panel recommended the undertaking of an investigation, stating that the request and Management's response 'contain a wide range of conflicting assertions and interpretations about the issues, the underlying assumptions, the facts, compliance and harm'.202 On g September 1999, in accordance with the Panel's conclusions, the Board authorized an investigati0n.~O3The authorization was for the first time based not directly on the Panel's recommendation, but on the Executive Directors' own power to mandate the body to conduct an During what was its first fully-fledged investigation, the Panel resorted to external experts for assistance and advi~e,~O5 as well as to a set of interpreters from outside China. The investigation involved the conduct of interviews of Bank staff, consultants, and outside experts in See Press Release, above n. 194. See Inspection Panel, Report and Recommendation on Request for Aspection China: W e s t a Poverty Reduction Prgject (Credit No3255-CHA and Loan No $501-CHA) (Panel Report on Eligibility), 18 August '999. Ibid., Inuestzgatzon Report-China: Wertern Poverty Reduction Project (Credit No. 32%-CHA and I,oan No. 4501-CHA) (Panel Investigation Report), 28 April 2000, Annex B I . International Campaign for Tibet Represenlational Authority. Panel Report on Eligibility, above n. 200, para. 28. See also ibid., para. 30. See World Bank, Board wants Panel to investigate whether the Bank has observed its policies and procedures in the preparation of the China Western Poverty Reduction Project, Press Release, 17 September '999. 204 See Resolution, above n. gr, para. In. 205 See Panel Investigation Report, above n. 201, para. rg. The team of senior consultants was comprised of experts in a range of subjects such as the environment, anthropology, the economy, and development. '99
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Washington, DC, as well as the examination of available Bank documentation on the Several non-governmental organizations were included in this process by means of consultations with the Panel, as well as the receipt of amicus curiae briefs.1°7 The investigation also consisted of a three-week field visit by Panellists and a team of consultants in the Qinghai Province to carry out interviews of Chinese officials as well as project-affected people and local The Panel noted that such field visits 'were extremely important for assessing formal and substantive compliance with Bank policies and procedures'
Panel Investigation Report and Findings The Panel issued an investigation report detailing its Overall, the report identified serious generic problems in the interpretation and application by Bank staff of safeguard policies in the course of the project-cycle. Indeed, the Panel revealed an 'unusually and disturbingly wide range of divergent, and even opposing, views among staff on how the operational policies and procedures should be applied' that raised, in its opinion, 'serious questions about the ability of Management to apply them with any reasonable degree of c~nsistency'.~" The Panel noted that safeguard policies could not be taken to authorize 'a level of "interpretation" and "flexibility" that would permit those who must follow these directives to simply override the portions of the directives that are clearly binding'.2L2It also remarked that precedents in the borrower country, as well as political and social conditions therein, should not serve to influence the application of the requirements found in policies and proced~res.~'3 The investigation report also focused on the legal issues surrounding the Bank's alleged violations of specific policies and procedures. The Panel concluded that there had been non-compliance on several grounds, including with respect to the policies on environmental conservation of natural habitats and endangered The Panel also identified violations specie~,~'5 and pest 20%e ibid. 207 See Panel Report on Eligibility, above n. zoo, Annexes B4-6. See World Bank, Panel to Vkil Qinghai in October, Press Release, Inspection Panel Returnsfrom China, Press Release, 28 October 1999. 209 Panel Investigation Report, above n. 2 0 1 , para. 23. "" See Panel Investigation Report, above n. 201. 2" Ibid., para. 25. Ibid., para. 37. 2'3 Ibid., para. 43. 2'4 See ibid., paras. 81 and 237. 2'5 See ibid., para. 254. 2 ' G See ibid., para. 214.
21
September 1999; ibid.,
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of the policies on indigenous peoples and involuntarily resettled pers0ns.~I7Finally, it found that the Bank had not complied with the applicable requirements on transparency and fublic participation, although it had made some progress in this area.21 In accordance with the Resolution, the investigation report was not binding, nor did it make any recommendations on remedial action. Certain recommendations for further action were elaborated in the report by Management that followed the submission of the Panel's findings to the B0ard.~'9Management's report also comprised annexes providing specifications on the relevant safeguard policies and outlining the issues of broader implications identified by the Panel. According to the report, 'both ODs and OPs/BPs provide general operational guidelines intended to apply in different situations within the limits of the flexibility provided in the directives. Many of the Panel's findings appear, however, to be based on an application of elements of each policy as legally binding rules, allowing for little or no flexibility or room for judgement'.220 Management also criticised the Panel for its 'rigorous definition of compliance'."' While the Panel's investigation report led to the Bank's commitment to certain remedial measures, its findings that the organization was in violation of seven out of ten of its most important social and environmental policies in the design and appraisal of the Qinghai Project heightened public pressure for the cancellation of the Project or of the Bank's financial involvement in it.222AS a consequence, the Board of Executive Directors, in a highly unusual move, rejected Management's support of the Project and recommendations. The Chinese authorities subsequently announced that they were withdrawing the Project from consideration and intended to use their own resources to implement it.223
See ibid., paras. 280, 293, 340, and 408. See ibid., para. 420-22. See IBRD/IDA, Managemmt w o r t and Recomm~ndation in Response to the Inspection Panel Inuestigation Repurt-China: Western Poverty Reduction Project Qinghai Component (Credit No 329-CHA; para. 9. Loan No 4501-CHA) (Management Report), 19June 2000, INSP/RZOOL+~/I, 220 Ibid., para. 20. See also the covering letter to the Report, where the Bank's President, James Wolfensohn, emphasized that the efforts pursued by Managemenl in response to the Panel's findings 'are pushing us into a literal and mechanistic application of the OPs and ODs that was never intended when they were written'. 2" Ibid., Annex, Background Paper on the Management Report and Recommendation tn Response to the Inspection Panel Investigation Report, para. r I. 2 2 2 See BIC, Summary of events leading to the cancellation of the China Western Poverty Reduction Project, available at URL . 223 See World Bank, China to Impkment Qznghai Component of the China Western Poverty Reduction Project with its Own Resources, Press Release, 7 July 2000; ibid., Chinese Government's Statmmt on the Inspection Panel Investigation Report for the China: We~ternPoverty Reduction Project (Qnghai Component) Press Release, 6 July 2000.
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Jurisdictional Issues
Extent of Standing As seen above, one of the Inspection Panel's innovative characteristics is that standing is granted to individuals and non-governmental organizations adversely affected by Bank-funded projects. The resulting extension of accountability of the World Bank to non-state entities is of particular importance where the activities of the organization have the potential to result in environmental harm. Not only are individuals often the first victims of ecological damage, but actors such as nongovernmental organizations may be more likely to represent ~4 environmental interests (especially global ones) than S t a t e ~ . ~The Resolution permits 'affected parties' to submit a request. The question is whether requests alleging infringements not of the requesters' own rights or interests but rather those of the public at large, or harm to the environment per se, are admissible even in the absence of potential damage to the reque~ters.~~5 The Resolution appears on its face to reject as inadmissible requests in ~ ~ so by requiring the existence of the nature of an actio p o p ~ l a r i sIt. ~does 22* Concurring see Grossman and Bradlow, 'Are We Being Propelled Towards a PeopleCentered Transnational Legal Order?' (1993) g Amdican UJ Intl. I. & Polzcy I, p. 22. See also above n. 11 and related text. On the growing role of non-state actors in the enforcement of international environmental obligations, see, e.g., Boisson de Chazournes, 'La mise en oeuvre du droit international dans le domaine de la protection de I'environnement: Enjeux et dCfis' (1995) gg Revue ginhale de droit inlmatzonalpublicpp. 37,68-p; French, 'The Role of Non-State Actors' in Werksman, above n. 24, p. 251; O'Connell, 'Enforcing the New International Law of the Environment' (1992) 35 (;errnun Ybk. Intl. L pp. 293, 311-13. 225 O n the recognition of public interests of the international community whose protection constitutes an obligation of individual States to the international community as a whole, see IC], h t h West Afnra Case.%(Ethzopiav. South Afnm, Lzbyn v. South Afica; ICJ Reports, 1950,p. 148; ibid., Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spazn) ICJ Reporls, 1970, 3, paras. 33-4; ibid., Applicatia of the Convention on the Prtmentzon and Punishmenl of the Crime of Genocide. Bosnia and Herzegovina v. Yugoslavia (Prelimznary Objections) (ICJ Rtports, 1996, 625), para. 6. See also ILC, Tttles and texts of the drafl artzcles on Responsibility ofstates for internationally wrongful acts adopted by thp Drafling Committee rm second readzng (26 July 2001; A/CN.4/L.602/Revr), Part Two, Chapter I11 and Part Three, Chapter I (in particular Arts. 42 and 48) (addressing state responsibility for serious breaches of peremptory norms and erga omnes obligations). On this topic, see ILC, Crawford, Special Rapporteur, Third report on state responsibility (10March 2000; A/CN.q/507), paras. 106-117; ibid., Fourth report on state responsibility (31 March 2000; A/CN.4/ j17), para. 49. See also Crawford 'The Standing of States: A Critique of Article 40 of the ILC's Draft Articles on State Responsibility' in Andenas and Fairgrieve (cds.), Liber Amzcmm i n Honour ofLord Slynn oJHadlq. Volume 11 (2000) p. 23. For insights into the representation of public interests in cases involving environmental harm see further Fitzmaurice, 'International Environmental Law as a Special Field' (1994) 25 NetherlandsJInl'l. L p. 181, 223-4; Sands, 'Access to Environmental Justice in the European Community: Principles, Practice and Pro osals (1994) 3 ReV. EC Intl. Envtl. L ( 1 9 9 4 ) ~206. . z2gThis is also the opinion of the Bank's former General Counsel. See Shihata , above n. 95, P 569.
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a personal link between the requester and the affected rights or interests ('its' rights or interests), as well as a territorial link between the requester and the borrowing country, and by limiting foreign representation of a teleological requesters to exceptional c a s e ~ . ~ Nevertheless, ~7 interpretation of the Resolution, allowing the submission of requests based on public interests as well as private interests of requesters, can be defended.228Such an interpretation understands the notion of 'interest' in a progressive manner that encompasses environmental interests, taking into account their collective nature. This approach is reflected, for example, in the Aarhus Convention, which asserts the right for nongovernmental organizations to act in respect of public environmental interests. Rather than using the terms 'private' or 'public' interests, the Convention refers to the 'public concerned', which is defined as 'the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, nongovernmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an i n t e r e ~ t ' . ~In ~ gdomestic legal systems, mechanisms have been instituted that allow for environmental organizations to initiate administrative or judicial proceedings on behalf of public environmental interests, for instance by undertaking class actions or instituting public law pro~eedings.~3O A broader interpretation of the Resolution, and especially of the notion of 'interest', is buttressed by the fact that the Panel's jurisdiction permits inquiries into Bank operational policies and procedures, several of which, such as those on the protection of natural sites and endangered species, or the global commons, have the object of protecting the environment as such. It can also be inferred from the Bank's commitment to pursue its activities in accordance with instruments of international environmental law that embody similar conservation g0als.~3' In practice, better observance of these standards in loan
227 According to Shihata, the conditions regarding the territorial link and foreign representations were intended by the Board to avoid the submission of requests by external (Western) nongovernmental organizations acting on their own. See ibid., pp. 61 and 65. Another conduit for invoking public interests before the Panel is through the submission of a request by an Executive Director, as the Executive Directors do not have to show that their rights or interests have been affected. In this eventuality, environmental nongovernmental organizations could lobby the Executive Director of their country to act before the Panel. To date, this however has not been the case. 229 Aarhus Convention, above n. 71, Art 2(5) (emphasis added). Proposing a broader understanding of the meaning of 'interests' and 'being affected', see Ebbesson, above n. 66. 230 On the limitations put on the locus standi of individuals and nongovernmental organizations upholding the protection of the environment in the case law of the European Court of Justice (ECJ), see Case G321/g5 P, Grmpeace and Othersv. Commission [1gg8] ECR 1-1651.See however Case 294/83, Parti icologisk 'La Verts'v. Parliament [1g86] ECR 1339. 23' See above n. 59 and related text.
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development operations will be secured only if the Bank may be challenged before the Panel by requesters acting on the basis of an extensive conception of 'interest'. While a case based exclusively on the allegation of public interests has not yet arisen, the Panel has found
eligible requests filed not only on behalf of local communities affected by a project, but also with regard to harm to biodiversity and the environment caused by a violation of Bank policy, even in the absence of damage to people.*3*
Breadth of the Applicable Law The Panel's subject-matter jurisdiction is, according to the Resolution, strictly limited to reviewing Bank compliance with internal Bank standards.*33This raises two concerns-on the one hand, the normative force of the safeguard policies from an internal point of view and, on the other, the role of international environmental principles in the interpretation and application of safeguard policies. On the first point, the China Request provides guidance on the legal nature of Bank safeguard policies. It reveals a tension between the Bank's view that these documents are flexible guidelines applicable with a certain margin of discretion, and the Panel's reasoning that they set out quasi-legal norms that require uniform application. An emphasis on the greater normative force of safeguard policies can be based on several arguments. First, the purpose of the process of converting policies into the OP/BP/GP format examined above was to distinguish mandatory policies from good practices. This indicates that, despite the need for a certain flexibility to accommodate particular circumstances, the application of environmental standards is not discretionary, and those which are contained in binding documents should be treated as such by staff. Secondly, as the World Bank, by instituting the Panel, has granted certain rights to affected parties to raise the question of the organization's compliance, these parties could benefit from a degree of certainty about the content of safeguard policies. If these instruments are drafted, interpreted, and applied by the Bank in as consistent and precise a manner as possible, this will enhance the procedural rights of third parties to submit complaints. With regard to the second point, the Bank has stated that it aims to conduct its operations in accordance with multilaterally-agreed environmental standards. Do such standards intervene to any extent in Panel proceeding~?~34 While the Resolution clearly determines that a 232 See Inspection Panel, Request for Inspection-Argentina/Paraguay: Yacyreta Hydroelectric Project, Pam1 Recmnmdation (INSP/RgG-z), 26 December 1996. Presumably, the environmental interests still have to be in-although not confined to-the State concerned. 233 See above n. 143 and related text. 234 In keeping with the scope of the Panel's mandate, which is limited to Bank noncompliance, the question here is not about overseeing the compliance of borrower States with their international obligations.
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request before the Panel could not allege Bank non-compliance with norms of international law, it does not specify that the Panel cannot consider information other than that included in requests. In view of the Bank's environmental and sustainable development commitments, internal policies and procedures must be understood as aiming to uphold standards embodied in at least some international environmental in~truments.~35 Furthermore, certain policies and procedures reflect general principles of international environmental law, including, for instance, the preventive and precautionary principles,236the principle of prior n0tification,~37and the prohibition of environmental harm beyond national juri~diction.~3~ It can be argued that the Panel, like the requester, should use environmental standards found in international customary and treaty law, general principles of international law, and non-binding instruments to fill potential gaps in Bank policies and procedures, and to interpret the rights and responsibilities arising out of these d0cuments.~39This reflects the fact that, while remaining within the confines of the Resolution, the interpretation of safeguard policies and procedures can take place within the wider normative framework in which the Bank operates on the international level."4O Procedural Aspects Degree of Independence In order to be credible, the Inspection Panel must be sufficiently independent from the organization that created it. The body 'is an independent forum' and ' [r]ecommendations and findings of the Panel shall be strictly impartial: only facts relevant to the Request or See above n. 60 and related text. See, e.g., OP 4.04, above n. 49, para. I ('The Bank supports, and expects borrowers to apply, a precautionary approach to natural resource management to ensure opportunities for environmentally sustainable development'). 237 See OP 7-50,above n. 51, para. 4 ('the Bank requires the beneficiary state . . . formally to notify the other riparians of the proposed project'). 238 See World Bank, Operational Manual .%atemat, Environmental Aspects of Bank Wmk (OMS 2.36) (May 1984) para. g(f) ('[The World Bank] will not finance projects that could significantly harm the environment or a neighboring country without the consent of that country'). '39 Concurring see Bradlow and Schlemmer-Schulte,above n. 117, p. 405 (stating that over time 'the Panel, like the complainant, may use jus cogens and customary international law, and general principles of international law to interpret the rights and responsibilities of international law') (emphasis in text); Kingsbury, above n. 42, p. 331 (arguing that that international law standards 'might properly be invoked as part of the corpus of norms and practice that may guide thc Panel in making useful recommendations'). The background of Panellists can of course play a role in the degree of emphasis placed upon international law. For an interesting comparison see the references to international environmental law in recent reports of the WTO Appellate Body, in particular in the ShrimpTurtk Case, above n. 21. Interesting insights can be gained in this regard from the reasoning of the 1992 Morse Commission, which, to evaluate the Bank's compliance in the context of the Sardar Sa~uvarWater Project, took a broad approach by using international standards, namely the International Labour Organization (ILO) Convention No 107, in addition to the Bank's own policies and loan agreements. See Morse Commission Report, above n. 87, p. 357. 2~'
236
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367 247
investigation under consideration shall be relevant to their de~isions'.'4~ The Resolution conceives the Panel as a functionally independent body from the Bank that is nevertheless assisted by the organization's administrative facilities and is located at the organization's headquarters. Wlilt: it lays down certa;n safeguards for the Panel's independence, other arrangements aim to preserve close links between the Panel and the Bank. The criteria applicable to the nomination and employment of Panellists represent a first test for an assessment of i n d e p e n d e n ~ e . ~The 4~ Panel's independence is served, for instance, by requirements of the Panellists' autonomy from the Bank's managerial structure, and prohibition of re-employment by the World Bank Group at the end of their term. Panellists are proscribed from participating in hearings or investigations of requests related to matters in which they have a personal interest or significant involvement.Y3 In this case, the other Panel members constitute the Panel until a new member is appointed.'# Certain requirements in terms of the independence of the Panel Secretariat are also provided for.'45 On the other hand, Panellists are Bank employees with an exclusive loyalty to the organization. Pressures on Panel members may arise from the Executive Directors' power to decide on their remuneration and removal from office. Panel proceedings provide additional insights in terms of suggests independence. That the Panel is a mechanism of last re~ourse'4~ a strong presumption towards the resolution of disputes within the Bank's managerial structure rather than by means of a Panel investigation. As mentioned above, this presumption was evidenced by the Board's (rather than the Panel's) competence to authorise an investigation into the merits of a r e q ~ e s t , ~asq well as by the practice of Management prematurely to submit remedial action plans leading to the avoidance of investigation^.^‘@ The Panel's independence, in terms of its competence to undertake investigations when it judges necessary, appears to have been strengthened after the adoption of the 1999 Clarifications. A balance should therefore be sought between the preservation of sufficient independence for Panellists and the Bank's will to maintain a certain level of control over the procedure. The conditions for the nomination and employment of Panellists have apparently not generated any major threats to the independence of the mechanism. Current Panel Administrative Procedures, above n. 91, paras. lo and 1 2 , respectively. See above nn. 105-114 and related text. *43 See Resolution, above n. 91, para. 6. 4' -1 See Administrative Procedures, above n. gr, para. 16. See also ibid., paras. 26-8 '45 See ibid., para. 34. 24b See above n. 117, and related text. 247 See above n. 153, and related text. See above n. 155, and related text. '4'
242
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members have no prior links to the World Bank, and only one former Panellist had been previously employed by the Bank. Neither has the Panel been shy of finding against the Bank during investigations, and of expressing its disagreement with the Board and Management on issues related to both specific requests and conceptual issues. The independence of the mechanism has been stressed by its former Chairman, according to which the Panel 'has, despite tremendous pressure, functioned as an independent structure, as it was intended, consistently providing the Board with an independent view of projects with potentially harmful impacts on local populations and the envir0nment'.~49 Levels of Transparency and Participation Rigorous requirements in terms of transparency and the participation of requesters, as well as external observers, ensure a fair, credible, and effective pr0cess.~5OThe timely disclosure of relevant information to both the requester and the public is necessary during Panel proceedings to ensure their adequate participation in the procedure. It also enables the dissemination of Panel findings on the types of deficiencies found in particular projects and on pervasive problems in the Bank project cycle. In all these cases, it is important that information be made widely accessible; this entails, for instance, that Panel documents are translated into languages used in borrowing countries by actual or potential requesters. While demands for greater information disclosure are balanced against confidentiality considerations, in particular as they greater weight should be given to the concern Board pro~eedings,~5' timely disclosure of environmental information at all stages of Panel proceedings, and the grounds for refusal applied restrictively. Adequate participation of requesters in the Panel procedure should also be ensured, in order to provide all parties with equivalent opportunities to present their case. This implies that requesters should be notified of all stages of the procedure, and have access to all relevant documents at the time of their issue. The identity of requesters should be confidential if they so d e ~ i r e . ~The 5 ~ participation and input of third '49
Umaria Quesada, above n. 93, p. 323.
2su For valuable insights into the contribution made by the creation of the Inspection Panel to
greater transparency and public participation in international processes see Boisson de Chazournes, 'Public Participation in Decision-Making: The World Bank Inspection Panel' in Brown Weiss, Rigo Sureda, and Boisson de Chazournes (eds.), The World Bank, InternationalFinann'alInstitultons, and the Developmat oflnternational Law (1999) p. 84. 25' See World Bank, Rules @Procedures of the Executive Directors of IBRD and IDA, Section 7 (requiring the preservation of the integrity of the deliberative process of the Board proceedings and protection of Executive Directors against undue pressure from other parties). See also above n. 79 and related text. 252 See Operating Procedures, above n. gr, para. 18 (b). Requests cannot however be anonymous. See ibid., para. 22(e).
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parties in the procedure ensures the consideration of additional and diverse information in the evaluation of requests, and provides opportunities for monitoring both the Panel's and the Bank's actions. It can be strengthened through their submission of amicus curiae briefs or other documents, and attendance during the periodic reviews of the Panel. Another venue for external commentators to participate in the Panel's work could conceivably be through the Annual Meetings held by the Panel members, to which the Panel 'may invite any other persons' than Panel members, the Executive Secretary, and Bank ~taff.~53 Consequences
The consequences of an investigation undertaken by the Inspection Panel relate to the types of remedies and redress that are potentially available to those adversely affected by the acts or omissions of the World Bank, as well as to the potential for changes in the Bank's development operations in terms of environmental protection. As mentioned, the Panel cannot take decisions or even recommendations on further action stemming from investigation reports.'54 This may represent a drawback to the mechanism's ability to lead to remedial measures and/or improvements to project and policy im~lernentation.~55 Nevertheless, Panel reports represent a non-negligible constraint on the Board of Executive Directors in the event of findings of Bank violations of safeguard policies and procedures. Consequences of the Panel process can be identified at two levels. On the one hand, the direct outcome of the particular project that is the focus of the request can be affected by means of several types of It should be underscored that since mitigatory or remedial mea~ures.'5~ the 1999 Clarifications, the Panel no longer has functions in the supervision of the implementation of such measures, despite the fact that such a role could be valuable to further monitor Bank complian~e.~57 Mitigatory or remedial measures may first consist in cessation of the Bank's funding of the project, as was the case in the Arun 111258and China Requests.*59 Bank withdrawal does not, however, necessarily imply See Administrative Procedures, above n. 9 1 ,paras. r and 5(b). See above nn. 170-172 and related text. 255 See, e.g., Bradlow, above n. 85, p. 610 (stating that the Panel should be given the competence to make general recommendations on the Bank's operational policies). 256 The Panel does however not give a right to remedial measures. '57 See above n. 159 and related text. lsn The continuation of the Planned Arun III Hydroelectric Project was unilaterally cancelled by the Bank as a result of the Panel's findings of non-compliance.See Inspection Panel, &quest for Inspection: Panel Inuestigatton Report-Nepal Arun I11 Proposed Hydroelectric Project (INSP/SecMg53), 22 June 1995; World Bank, Nepal Arun III Proposed Hydroelectric Project-Management Response lo the Inspection Panel's Investigation Repurl (INSP/SecMg,5-5),5 August 1995. %9 See above n. 223 and related text. 33
254
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T H E ENVIRONMENTAL ACCOUNTABILITY OF
cessation of the project itself; in both of these cases, the borrowing countries (Nepal and China respectively) are planning to continue , ~ ~ ~ without benefiting from Bank support. project i r n p l e r n e n t a t i ~ nalbeit In such cases, it is debatable whether environmental interests are indeed best being served. This point highlights that the Panel process does not resolve the problems surrounding state compliance, nor the accountability of borrower countries for their integration of environmental considerations in the development process,261an issue not addressed in the scope of the present article. Secondly, measures aimed at the Bank's return to compliance can be adopted. For instance, following the recent Ecuador Request, Management has agreed to greater NGO participation and consultation in the implementation of actions taken under the project in question.262Thirdly, it is conceivable that Panel findings of noncompliance may impact upon the availability of remedies in other disputeresolution procedures, especially in the context of' claims brought against the Bank in national courts, although such findings do not preempt any An important decision on liability under the applicable domestic domestic procedural bar to claims against the Bank remains, however, the organization's immunity from jurisdiction. On the other hand, a second category of consequences can be seen as broader in scope and less project-specific. Panel reports can influence the development of the applicable law, by providing significant guidelines on the interpretation and implementation of, and complkance with, Bank environmental safeguard policies and procedures. Indeed, according to the Bank's Operations Evaluation Department (OED), '[rlecent Inspection Panel reports have highlighted a significant problem with the implementation of [environmental assessment] structure in the Bank due to perceived ambiguities in the scope, intent, and requirements of the policies among staff responsible for the implementation'.264 Moreover, the establishment of the Panel has enhanced transparency in Bank operations, as in order for the mechanism to operate parties external to the Bank must be made aware of, and have unfettered access to, relevant Bank documents. As seen in the context of the China Request, Panel reports also disclose the environmental and social consequences of project deficiencies stemming *" No final decision has yet been made with respect to the continuation of the Arun IIIHydroelectric Proect, although proposals by private investors have been made. '6' Borrower States are legally bound by the terms of the loan or credit agreement entered into with the Bank. 2fi2 See World Bank, Management Report and Kecommendation in Response lo the Inspection Panel Inuestigalion Repmt--Ecuador Deuelopml and Enuironmental Control Technical Assistance Project (Loan Nu 3655-EC), 23 February soor. 263 On the pending law suits filed in February 1997 in Argentinan courts against several defendants including the World Bank for damages suffered as a result of the Yacyreta Hydroelectric Project, which was also the object of a 1996 request before the Panel, see Shihata, above n. 95, pp. 122-3. '4 OED Environmental Review, above n. 86, para. 63.
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from Bank non-compliance with internal standards, as well as generic problems in the project cycle of financed projectxZ6f) In terms of public participation in Bank operations, the Panel fosters external input by individuals, nongovernmental organizations, and local communities. Beyond the internal level, Panel reports can encourage legal developments in areas of international law, such as institutional, environmental, and human rights law.266 This review of the possible consequences of the Panel process reveals an important feature of the mechanism, that is, its emphasis on prevention. That environmental harm should be prevented rather than repaired o r compensated ex post indeed represents a mantra of environmental law, because such harm is often irreversible and/or . ~ ~ 7has led, in difficult to assess in terms of monetary ~ o m ~ e n s a t i o nThis the field of state compliance with environmental obligations, to an emphasis on monitoring, reporting, and non-compliance procedures, which favour avoidance of environmental damage over reparation or compensation.z68 The Inspection Panel mechanism responds to the principle of prevention in two ways. In project-specific terms, it allows for requests to be brought prior to the commission of environmental harm, as they can concern projects in the preparation and appraisal stages of ~g can thus allege potential harm.270 In a the project c y ~ l e . ~Requesters more general perspective, the Panel process may contribute to the prevention of future harm, by laying the ground for greater compliance of the Bank with environmental policies and procedures in loan development operations, through both positive measures (for instance, the clarification of policies and procedures) and deterrence.
This article has examined substantive and procedural features of the World Bank Inspection Panel, in order to explore some of the shifts that 265 The Panel has generally identified two systemic issues in the Bank's operations; the first is the imbalance that develops in projects that have infrastructure as well as social and environmental components, and the second the unequal status that social and environmental components seem to have vis-a-vis other policies in the preparation and implementation of projects. See UmaM Quesada, above n. 93, p. 326. 266 See Bradlow and Schlemmer-Schulte,above n. 127, p p 402-14. 267 See Boyle, 'Remedying Harm to International Common Spaces and Resources: Compensation and Other Approaches' in Wetterstein (ed.), Harm to the Environment: The Right to Compensation and Arsessment of Damages (1997) p. 83. 268 See, e.g., Bothe, above n. 67, pp. 21-2; Fitzmaurice and Redgwell, 'Environmental NonCompliance Procedures and International Law' (2001) 31 Netherlands Ybk. Intl. I, 35; Koskenniemi 'Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol' (1992) 3 Ybk. Intl. E n d . I, p. 123; Sachariew, above n. 67. 2" See above n. 121 and related text. 270 See above n. 134and related text.
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are occurring towards greater accountability of international financial organizations. The creation of the Panel can be seen as one response to the obstacles to the application of traditional responsibility and/or liability principles to organizations, especially when development institutions are concerned.l7' The Panel is not a court of law where the responsibility or liability of the World Bank can be inv0ked.~7'It does not have binding decision-making powers and does not reach an enforceable judgment. The Panel fits into a more flexible concept of compliance and dispute settlement, which aims to monitor and enhance compliance with certain environmental standards, while establishing a soft framework to address events of non-compliance. A parallel can be made with soft compliance procedures in inter-state relations, which aim to remedy the inadequacies of traditional enforcement mechanisms when international environmental obligations are concerned.l73 As a corollary to its more informal and flexible nature, however, the Panel is a mechanism lacking teeth, for instance because of its relative lack of independence and inability to adopt remedial action. Competing conceptions of the scope of its functions have been promoted, in turn by the text of the Resolution, the practice of the Panel, the decisions of the Bank's Board of Executive Directors, and interpretations on the part of external observers. The Panel may be viewed as a body with either limited investigatory and/or mediatory competence, undertaken by means of relatively flexible procedures, or as having functions of a quasi-judicial nature accomplished through a formalized process. The Board has sought a strictly non-judicial mechanism. During its first five years, the Panel's competencies were restricted to advisory and fact-finding ones, as it was in the majority of cases not authorized to undertake investigations into the merits of requests. In this sense, the Panel resembled the IFC/MIGA's CAO, which, in its Ombudsman role, is a conciliatory mechanism aimed primarily at securing an amicable arrangement between parties in di~pute.~74 On the other hand, NGOs and external commentators, as well as some sections of Bank staff, have leaned towards the 'judicialization' of the Panel. The Resolution indeed grants the Panel quasi-judicial functions during the eligibility and investigation phases, such as to determine its jurisdiction, examine the merits of a request by applying legal norms to facts, and arrive at a determination on the issue of non-compliance after an inquiry conducted in accordance with legal rules and on the basis of principles of fairness and equity. The adoption of the 1999 Clarifications See the literature cited above in n. 5 and related text. See also Schlemmer-Schulte. 'The World Bank, its Operations, and its Inspection Panel' (1999) 3 Recht der intaationalen Wirtschaftpp. 175, 179. 273 See above n. 271 and related text. 2 i 4 See above n. 98 and related text. 27' 272
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have marked a trend towards emphasizing the quasi-judicial characteristics of the Panel with regard to the body's defacto competence to decide on the initiation of investigations. The China Reguest represents the first full investigation undertaken thereafter, which allowed the Panel to exercise its full competences as determined by the Resolution. While the Inspection Panel should remain a flexible and pragmatic dispute resolution mechanism, strengthening its quasi-judicial functions has the potential to give the mechanism greater teeth. From the point of view of environmental conservation, long-term shifts in the development loan process pursued by international organizations such as the World Bank can indeed be furthered by the establishment of more formal supervisory processes, allowing an independent body such as the Panel to intervene between the organization and the complainant, with the goal of ascertaining the law and assessing compliance with existing obligations. The mechanism's impacts in this regard can be reinforced by, inter alia, the Board continuing to authorize investigations when recommended by the Panel, the Panel benefiting from greater leeway in the conduct of investigations, all parties in the procedure being granted equal procedural rights, and by the Bank's consistent implementation of adequate remedial and mitigatory measures on the basis of Panel findings. In conclusion, the development of accountability mechanisms such as the Panel suggests that States can no longer evade certain fundamental principles of public policy behind the 'veil' of international organizations, because the latter's collective decisions may be subjected to accountability standards. That the World Bank, amongst other organizations, has committed itself to pursue its operations in accordance with multilateral environmental norms evidences the progressive externalization of the activities of international organizations. Originally conceived as operating exclusively en vase clos, they are now expected to take full account of developments in international law and policy. In a comprehensive and integrated international legal order, international financial organizations have become the addressees of normative and policy standards stemming from sustainable development. Participatory requirements also dictate that non-state actors-whether individuals, interest groups, nongovernmental organizations, or local communities-should be legally protected against the adverse consequences that can result from the loan development operations of organizations. The Inspection Panel, as illustrative of these developments, represents 'an important step towards securing transparency and fairness in the operations of international organisations, bold in its involvement of "communities" in the proce~s'.~75
'75
Collier and Lowe, The S e t t b t ofDzsputes i n International Law (1999).p.
121
Globalization of Human Rights: The Role of Non-state
Actors Andrea Bianchi
INTRODUCTION It may very well be that the universalization of human rights is a political or historical fact that needs no further comment (Henkin, 1981: 4; Bobbio 1992: 21). The widespread international consensus on the values enshrined in the Universal Declaration of Human ~ i g h t s and ' the overall agreement on the two UN Human Rights covenants2 may lend support to the argument that the ethical relativist approach (Brandt, 1967) that has been argued by some segments of legal scholarship to be a major hindrance to the development of universal standards (Joyner and Dettling, 1984; Renteln, 1985), is largely irrelevant in practical terms. Whether or not that is right, the legal dimension of such a process needs to be assessed carefully. In particular, if we take the expression 'globalization of law' to mean a law-making process which occurs in multiple sectors of civil society, independently of nation-states (Teubner, Chapter 1 in this volume), the mere existence of international legal norms embodying such a supposedly shared value as the protection of human rights is not conclusive evidence of such a phenomenon. At most, it is a sign of the quest for universality that, in international law, seems all the more indispensable with regard to some issues of common concern, such as the protection of human rights and the environment (Charney, 1993: 529) and of the increasing internationalization of matters which states ustd to consider as pertaining to their domestic jurisdiction. This per se is a major innovation, but it does not necessarily imply a transformation of the nature of the international community. Prima facie international law-making mechanisms still focus on the
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conduct of the nation-states. Contemporary trends to establish multilateral fora of negotiation for the handling of complex issues do not seem to have notably altered the state-oriented approach to formal law-making processes. As is well known, treaties, customs and soft law instruments, which provide the traditional normative structure of international law, rely on state conduct and are ultimately anchored in the consent of states either expressly or t a ~ i t l yLaw . ~ enforcement processes are authorized, or at least consented to, by states. Quite understandably, the latter seek to keep under control the legal processes that take place in an international community in which they are still deemed to be the main actors. On closer scrutiny, however, the above paradigm may reveal an unexpected degree of inaccuracy. Due to the developments of the past few decades, non-state actors have started playing an increasing role in the shaping of the international human rights doctrine, deeply infringing on the once indisputable prerogatives of the nation-states. This role varies depending on the type of actor and on the nature and characteristics of the processes in which they participate. Although such processes are still predominantly state-centred, both the development of consistent practices of intervention by non-state actors, and the legitimacy that their actions have recently acquired, may ultimately undermine the states' monopoly in the production and implementation of international norms. The purpose of this chapter is to investigate the complex interaction of state and non-state actors in fostering and ensuring respect for human rights at a global level. After a cursory review of the practical manifestations of this interaction, its relevance will be assessed with a view to ascertaining whether it is-likely to turn out to be the germ of a process of globalization of human rights law via the dynamics of a transnational civil society (Teubner, Chapter 1 in this volume: Evan, 1991; Falk, 1992).
QUANTUM MUTATUSAB ILLO! T H E CLASSICAL DOCTRINE OF INTERNATIONAL LAW AND THE EMERGENCE OF THE INTERNATIONAL HUMAN RIGHTS DOCTRINE When in 1586 Jean Bodin defined in his De Repuh1ic.n the concept of sovereignty as '. .. summa in cives ac subditos legibusqe soluta potestas' (Brierly, 1942: 6), he could not have predicted that positivist legal theory, thriving on the interests of the nation-states, would revive and perpetuate its symbolic and practical meaning until recently (MacCormick, 1993). The classical doctrine of international law, largely based on the sovereignty paradigm, paid little attention to individuals who were occasionally considered as mere beneficiaries of a restricted number of international legal
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377 18 1
rules, such as those on the treatment of aliens. The respect due to an equal sovereign obliged the territorial state to grant an international minimum standard of treatment to foreign nationals. Individual claims, however, would become relevant under international law only if they were 'espoused' by the national state of the injured individual (D'Arnato, 1987: 194 ff.). This
left individuals at the mercy of states which, most of the time, would avoid antagonizing other states in the conviction that sooner or later they might find themselves in the position of the wrongdoer. Overall, states could act freely within their territorial boundaries. The externalization of the concept of sovereignty, originally devised by political theorists to describe the political facts of the time (Brierly, 1942: 38), progressively gained legitimacy as an international legal rule, thus giving states an almost unfettered power over their subjects. The neglect of individuals and their rights did not withstand the devastation brought about by the Second World War, the bombing and other kinds of suffering inflicted upon civilian populations and such grave offences against the dignity of humankind as those perpetrated by the Nazi regime. The Nuremberg principles? subsequently endorsed by the General Assembly of the United Nations? attested to the strong commitment of the international community no longer to tolerate the heinous crimes committed before and during the war. Further, the human rights provisions included in the UN Charter and the wide consensus on the adoption of the Universal Declaration of Human Rights (Sieghart, 1991: 27) paved the way for the proliferation of human rights instruments that not even the profound ideological differences existing in the international community have prevented. The shaping and progressive consolidation of an international human rights doctrine has had remarkable repercussions on the concept of state sovereignty and its ancillary notion of domestic jurisdiction. The Permanent Court of Justice had already stressed the inherent relativity of the concept of domestic jurisdiction, the content of which varies depending on the evolution of international law.6 Whatever is regulated by international law can no longer be amenable to the category of purely internal matters. If a state violates human rights its conduct may be subjected to scrutiny by the international community. When its violations are grave and massive, it may be held responsible internationally on the basis of customary law, regardless of its formal participation in any human rights treaty regime. The steady erosion of the notion of domestic jurisdiction has led to a profound change in the related concept of sovereignty. International law no longer grants absolute protection to the sovereignty of states. Some commonly shared values, such as the protection of human rights, allow the international community to interfere with the once indisputable power that states had vis-
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ri-vis their own subjects. Today, the way a state treats human beings under its jurisdiction and control is a matter of international concern.
THE CHANGED RELATION OF THE INDIVIDUAL TO THE STATE The above developments notwithstanding, the representation of international law as a set of legal rules governing the relations between sovereign and independent states would still meet the canons of orthodoxy for many international lawyers. International legal scholarship finds it hard to elude the restraints imposed upon it by the legacy of positivism. This is particularly evident when one looks at the doctrine that still dominates the issue of who are considered to be the subjects of international law, in which hardly any room is made for subjects other than states and international organizations. States naturally tend to support such a theoretical framework, which is obviously instrumental to their retaining control over international lawmaking and law-enforcement mechanisms. In fact, theoretical thinking on the subjects of international law is not deprived of important practical consequences. For instance, it permits states to deny individuals legal standing before international tribunals and, sometimes, even before domestic courts on the basis of the doctrine of the unenforceability of international law claims by individuals. In spite of such a strong commitment to opposing the recognition of individuals and other entities as legitimate actors in the international ,arena, the force of - some .recent developments in international practice is slowly overcoming'the understandable resistance of states to modifying the status quo. The once indisputable denial of legal standing for individuals before international tribunals is increasingly subject to exceptions.7 Further, their entitlement to human rights, acknowledged in international instruments, and their alleged accountability for international law crimes (Sunga, 1992; Bassiouni, 1992), make it more and more difficult to justify their exclusion from intemational law processes even on formal grounds. In particular, the international human rights doctrine has inevitably and irrevocably altered the main tenets of the traditional paradigm of international law. When the community of states accepted the idea of human rights it inadvertently let a Trojan horse into the strongly state-centred system of international relations. Over time, the shaping of the doctrine of international human rights has proved to be a catalyst for a process which has progressively led not only to the steady erosion of the positivist notion of state sovereignty, but also to the practical necessity of framing international law in a different context. If one looks at international law as a complex process of decision-making rather than as a set of normative prescriptions,
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the idea that individuals and groups are 'part and parcel of the fabric of international law, representing the claims that are naturally made by individual participants in contradistinction to state-participants' (Higgins, 1985: 480) is not so astounding as it might have appeared a few decades ago (Schreuer, 1993: 449 ff.).
THE CONTRIBlJTIONOF THE WRITING OF JURISTS TO THE EMERGENCE OF HUMAN RIGHTS AS A SHARED VALUE WORTHY OF PARTICULAR LEGAL PROTECTION Quite apart from the formal recognition of the teachings of the most qualified publicists of the various nations as a subsidiary means for the determination of rules of law, provided by Article 38(l)(d) of the Statute of the Jnternational Court of Justice, the writing of jurists appears to have had a remarkable influence on the shaping and gradual emergence of the idea of a world public order. This idea of the world public order is one in which international human rights norms would enjoy a superior rank as they reflect values and interests deemed to be worthy of particular legal protection by the international community as a whole. Building on the famous dictum of the International Court of Justice in the Barcelona Traction case, which distinguished between international law 'obligations of a State towards the international community as a whole, and those arising vis-8-vis another State' (Schwebel, 1991: 964),* scholars have progressively elaborated on the notion of obligations erga omnes (Picone, 1983; Meron, 1989: 188 ff.). Such a qualification envisaged by the Court for norms 'concerning the basic rights of the human person' implies significant consequences. In principle, by bestowing a legal interest on each and every state in the observance of certain obligations which are deemed to be of the greatest importance for the international community, states are given the power to ensure that such obligations are respected (Charney, 1989; Sicilianos, 1990). The idea of an international public order where certain principles deserve particular protection is thus introduced into international law. Parallel to this development, the notion of a restricted core of peremptory norms was advanced by the International Law Commission, an organ established by the UN General Assembly and composed of independent jurists (The Work of the International Law Commission, 1988). The concept, subsequently endorsed by governments, was codified in the Vienna Convention on the law of t r e a t i e ~Ever . ~ since the notion of jus cogens has become an integral part of international law (Gomez, Robledo, 1981; Alexyde, I98 1; Gaja, 1981; Frowein, 1984; Hannikainen, 1988; Danilenko,
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1991). The inherent difficulties in highlighting specific norms which cannot be derogated from have not prevented the vast majority of legal scholars from acknowledging that some international norms which protect fundamental human rights should be given such a status. The looming notion of international crimes through the traditional precepts of state responsibility has given further momentum to the idea of an autonomous legal regime for the repression of grave breaches of fundamental norms of international human rights law (Dupuy, 1979; Weiler er al., 1989).1° The distinction between international crimes and delicts was presented by the Internafional.Law Commission in its Draft Articles on State Responsibility as lex lnta." As far as human rights are concerned, 'a serious violation on a widespread scale of an international obligation of essential importance for safeguarding the human being' was cited as an example of an international crime. The consequences of an international crime are still controversial, but the idea of a special regime of international responsibility for grave violations of fundamental obligations is taking root in the international community. Such categories as obligations erga omnes, jus cogeas norms and international crimes converge on the development of a world public order in which certain values are perceived to be fundamental for the international community as a whole (Mosler, 1980; Jaenicke, 1984; Gaja, 1989). The establishment of a hierarchy of norms on the basis of their content, rather than on the process of their creation, attests to this tendency (contra Weil, 1983). As is the case with any other legal system international law is valueoriented. Jurists may evaluate such values and provide a formal framework for their implementation. They can provide a conceptual framework which may be instrumental either for the justification of intervention by a state or by the international community as a whole to place sanctions on human rights violations or, conversely, to blame the same actors for their inertia. The writing and codification of law by jurists in the field of human rights has a much greater impact on state practice than one might expect. Especially '[nlational courts are unfamiliar with state practice and are ready to lean on secondary sources' (Brownlie, 1990: 25). It is noteworthy that such doctrinal work as the Restatement (Third) of the Foreign Relations Law of the United States, drafted by a group of eminent jurists for the American Law Institute and often quoted as the only authoritative source on international law issues before domestic courts, has taken a progressive stance on international human rights which endorses most of the contemporary developments described above (Restatement, 1987: paras . 33 1(2); 702, Comment; 703(2)). Needless to say, the writings of jurists would have had less remarkable Consequences had they not thrived on some complex transnational social
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processes which provide indirect support for their conceptual findings. Indeed, the apparent formality of the contribution of jurists to the shaping of an autonomous international human rights regime is immaterial if it is realized that it can be instrumental to giving expression in legal terms to the demands of civil society. The increasing awareness by the world public
opinion of human rights issues emphasized by the media on the one hand, and the attempt by jurists to conceive of an autonomous international human rights regime on the other,12 are phenomena that occur at different levels but which cannot be evaluated in isolation from each other. Connections are not always visible and distinctions are not always clear-cut, but their interaction cannot be denied. Thus, a self-reproductive legal discourse, elaborated by a restricted intellectual community when coupled with social processes that give support to the basic tenets of the discourse, may ultimately affect state behaviour. As with jurisprudential assertions, doctrinal stances tend to create beliefs and by their constant repetition and use they ultimately influence the content of the law. The incorporation of such beliefs in-international legal rules is no evidence of the emergence of a global law. However, by fostering the idea that human rights enjoy a particular legal protection in international law as fundamental values for the whole international community, jurists set the stage for the development of a new world order based on shared values and common interests.
THE INCREASING ROLE OF NON-GOVERNMENTAL ORGANIZATIONS IN THE SHAPING OF INTERNATIONAL HUMAN RIGHTS DOCTRINE AND PRACTICE Scant attention has been paid to the activities of private groups in the international arena. Contemporary developments show that this attitude is no longer justified. Nowadays, the activities of non governmental organizations (Bettati and Dupuy, 1986) in the field of human rights range from information-gathering dnd processing with a view to disclosing human rights violations by states to lobbying national governments and international organizations in order to influence andlor control relevant policies. Furthermore, they are increasingly involved, sometimes in cooperation with governmental organizations, in the complex machinery of international lawmaking and law-enforcement activities (Weissbrodt, 1984).
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Selected examples of the participation of non-governmental . organizations in international human rights law-making processes The role of non-governmental organizations in international law-making has been occasionally acknowledged in legal scholarship. For instance, mention is often made of the contribution of the Anti-Slavery Society to the abolition of slavery in the nineteenth century and of several non-governmental organizations to the inclusion in the UN Charter of the provisions related to human rights. The peculiar experience of workers' and employers' representatives at the International Labour Organization (Wolf, 1984) could also be regarded as one of the first institutional forms of participation of private groups in the formulation of human rights standards. Only recently, however, has the NGOs' active involvement in the creation of international law rules materialized in a more transparent manner. One particular instance of recent practice which is worth mentioning is the contribution of Amnesty International (AI) in the 1970s to the development of international legal standards prohibiting torture (Leary, 1979). Building on the prohibitions already existing in international law instruments, Amnesty International launched a worldwide campaign and concentrated its efforts on gathering consensus on the qualification of torture as an international crime and on the need to strengthen the emerging international regime. By drawing attention to torture A1 put pressure on national governments. Participating actively in the preparation of the Fifth UN Congress on the Prevention of Crime and the Treatment of Offenders, it asked national sections to mobilize domestic public opinions as well as governments. In the same year the General Assembly adopted the Declaration on ~ o r t u r eand, ' ~ in order to ensure an effective follow-up, A1 proposed the adoption of an ad hoc Convention. How much this contributed to the subsequent adoption of the UN Convention Against ~ o r t u r eis' ~hard to assess. It seems reasonable to infer, however, that were it not for the systematic campaign organized by Al, it would have been much more difficult to achieve such a wide, almost universal, condemnation of torture which is now reflected in a general acceptance of the prohibition of torture as a customary rule of international law binding on all states. More recently, certain NGOs made a remarkable contribution to the drafting of the UN Convention on the Rights of the Child.I5 Perhaps for the first time in history, the concrete impact of their action has been acknowledged and partly reflected in both Article 45 and the rrclvnux prkpnmtoires, where reference is made to 'other competent bodies' besides state representatives and intergovernmental organizations. The fruitful cooperation between NGOs and the' governmental working group charged with the difficult task of drafting the Convention, deserves further comment.
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In terms of efficacy, the NGOs' action greatly benefited from the coordination of the Ad Hoc Group which, since 1983, had submitted regular reports to the governmental working group. The direct involvement of NGOs in the negotiating process kept governments under pressure and forced them to hasten the successful conclusion of the negotiations. It is also noteworthy that the NGOs involved in the negotiations were able to trace at least 13 articles included in the text for which they were primarily responsible. It matters little if their proposals were often presented by state representatives rather than directly by the concerned NGOs: the latter's cohesion and careful preparation, as well as the breadth of expertise on which they could draw, account for the success of the undertaking (Detrick, 1992: 25). Despite the lack of transparency that usually characterizes the NGOs' participation in international negotiations, their increasing involvement shows a degree of legitimacy which could hardly have been envisaged until recently. In particular, the coupling of traditional government lobbying and policy-influencing activities with informal participation in formal lawmaking mechanisms, as in the case of the UN Convention on the Rights of the Child, greatly contributes to the enhancement of the NGOs' role in the protection of human rights.
The NGOs9intervention in international judicial proceedings A peculiar and particularly effective form of participation in international law-enforcement mechanisms is intervention as amicus curiae in judicial proceedings before international tribunals. In recent practice this has proved to be a good substitute for direct intervention given the many limitations that international law still imposes upon non-state actors in terms of legal standing. l 6 As recent studies have demonstrated (Shelton, 1994) an increasing pattern of submission of amicus curiae briefs to the European and the interAmerican Courts of Human Rights attests to the growing role of NGOs in international litigation. In the case law of the European Court of Human Rights the first occasion on which a concrete submission of information took place was in the Young, James and Webster case where the Trade Unions Congress submitted, through the Commission, information to which the final ruling of the Court made express reference and a TUC representative was heard in oral proceedings.'7 Following a formal amendment to Article 37(4) of the Rules of Court, which formally allowed submissions by third parties 'in the interest of the proper administration of justice', the number of instances in which NGOs have intervened has increased steadily. I S Although intervention has occasionally been denied either because the relevant issues
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had already been dealt with adequately by the parties,19 or because the existence of clear precedents applicable to the case had made such an intervention redundant,20 the activism of NGOs has frequently provided the Court with background information, comparative legal analysis or interpretation of the law. Particularly active NGOs, in the context of the European Convention, include Interights and ~ r t i c l e19 (the International Centre Against Censorship). The latter's submissions appear to have been particularly relevant to the decision in the notorious case concerning the book a catcher.^' Comments by Amnesty International are quoted in the judgement of the Court in the equally notorious Soering case.22In the recent m ,Court ~ ~ discussed at case Brannigan and McBride v. United ~ i n ~ d o the length the allegations submitted by several NGOs including Amnesty International. Although the Court finally found against the plaintiffs and upheld the UK derogation under Article 15 of the ECHR, it is of note that Judge Martens in his dissenting opinion thoroughly endorsed the arguments submitted by several NGOs.
The NGOs' contribution to the implementation of international human rights The involvement of NGOs in the implementation of human rights may occur in many different ways (Wiseberg-Scoble, 1979). Intervention at the diplomatic level to point out human rights violations to government officials may sometimes be expedient for the provision to the victim of means of redress when discrete action is required in the circumstances. Also factfinding missions have often been resorted to in order to investigate alleged violations, to attend trials in a supervisory capacity or to mediate disputes. A detailed survey of such a form of intervention (Thoolen and Verstappen, 1986) unveils its complexities and the variety of purposes that may direct its choice. The outcome of the missions may be kept confidential as is often the case with the International Committee of the Red Cross (Forsythe, 1977) visiting places of detention (Armstrong, 1985), usually with the permission of national governments, or made available to the public as Amnesty International frequently does in order to draw attention and promote public discussion of human rights violations by states (Armstrong, 1986: 250 ff.). In addition to that, the most known NGOs regularly publish country or single-issue reports. Along with the reports issued by state actors, such as the yearly State Department Human Rights Report, and with those occasionally published by a myriad of other NGOs, these publications greatly contribute to the dissemination of information essential to forming a global understanding of human rights.
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A cursory review of the participation of NGOs in international investigative procedures betrays a wide array of activities that largely depend on the international legal instruments on which they are based. An important contribution to the implementation of human rights consists in the possibility of submitting communications to various organs established within the
framework of international organizations such as the United Nations or the Council of Europe or set up by specific human rights treaties. By way of example, one may cite, within the UN system, the NGOs' entitlement to make communications to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities of the Commission on Human Rights (Kamminga and Rodley, 1984; Lillich, 1991: 374 ff.) and to submit information under the ECOSOC Resolution 1503 related to situations which appear to reveal a consistent pattern of gross violations of human rights (Hannum, 1984: 60 ff.). In the latter case their power is made conditional on their acting in good faith, on their not resorting to politically motivated stands and on the requirement that they have direct and reliable knowledge of the violations. Furthermore, NGOs may contribute to special studies and, on request, provide information to the Secretariat, the Commission on Human Rights and other UN organs. In the European context NGOs participate in human rights monitoring activities under ad hoc arrangements which provide a formal affiliation with ~ the Council of Europe and the CSCE process (Brett, 1 9 9 3 ) . ~Moreover, NGOs may bring matters to the attention of the Committee established by the European Convention for the Prevention of Torture, urging visits to particular places of detention within one of the states party to the Convention. As far as specific human rights treaties are concerned, the possibility for NGOs to make oral and written submissions to the Committee on Economic, Social and Cultural Rights and to the Committee on the Rights of the Child (Posner, 1994), and to make written submissions to the Committee Against Torture (Brett, 1993: 138) may be mentioned. Quite apart from any formal arrangements, the exchange of information between governmental and non-governmental organizations appears to be common practice. Cooperation takes place regardless of formal constraints, especially in cases in which individuals sit on governmental organization bodies in their private capacity. It is also impossible to prevent access to governmental delegates, if the delegates are willing to receive information from NGOs. Ultimately, due to legal and financial restraints, the work of intergovernmental organizations would not be effective without the help of NGOs and human rights activists who gather and process the information to be submitted. The establishment of formal procedures by intergovernmental organizations has been an indispensable, albeit insufficient, element in the
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progressive development of an international human rights doctrine. Such procedures, originally created within the traditional framework of interstate relations, are made effective by the activism of NGOs. The latter not only make repressive practices and violations of human rights more transparent by gathering and disclosing information and by attracting media coverage, but also force states to justify their conduct. Moreover, international procedures are more likely to be triggered off by NGOs than by the states themselves which tend to abstain from activating legal processes which might backfire on them later (Posner, 1994: 407). A good illustration of such a process is given by two case studies of Latin American countries engaged in repressive human tights practices, although to a varying degree and under different circumstances. A recent study confirms that widespread and systematic action by NGOs and other private groups may draw attention worldwide to repressive human rights practices in certain countries and by mounting international pressure on responsible governments may cause a remarkable improvement in the situation (Sikkink, 1993). Some common trends can be discerned in the accused states' reaction to allegations of human rights violations set forth by NGOs. At first, the states concerned usually refuse international scrutiny over their human rights practices. Then, after attempts to discredit human rights activists and organizations, the outside pressure forces them to cooperate. Eventually, the persistent activism and the credibility of NGOs lead to a change in relevant policies and practices. Overall the action of NGOs appears to be more effective in connection with the existence of a normative framework of a national or international character. In such a case an effective remedy might be made available to the victims after the disclosure of a violation'. Participation in international investigative procedures and diplomatic efforts to induce compliance with international human rights norms do not exhaust the NGOs' contribution lo international law processes. By means of their action at both national and international levels they create transnational solidarities and gather consensus on human rights values regardless of whether they are embodied in formal rules. In other words, they contribute to establishing a communicative process whereby the.conduct of states is no longer assessed in terms of acting in conformity with international binding rules, but by a much less formal code according to which the legality of their behaviour largely depends on its being consistent with some basic understanding of certain human values the respect of which is perceived to be fundamental.
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Some final remarks on the activities of NGOs Given the informal and episodic character of most of the NGOs' practice of intervention to ensure respect for human rights, one may wonder why governments care so much about their activities. Despite its apparently
dispersed nature, the power held by NGOs in the production and implementation of human rights is an effective instrument for a variety of reasons. The first, perhaps obvious, one is that any government, whether dictatorial or democratic, would be seriously damaged were it to be established that, by acting 'tyrannically towards its citizens, it violates the basic trust which permits it to continue ruling' (Weissbrodt, 1988: 410). Second, by disclosing violations of human rights NGOs may activate, directly or indirectly, different kinds of legal remedies which ultimately affect the violator's interests. Third, and perhaps most importantly for our purposes, the spread of information concerning a state's poor record in respecting human rights standards creates an aura of hostility and a widespread negative attitude towards it, regardless of its formal participation in international treaties or of the formal value of such standards. The distinction between binding and non-binding law is blurred, and by the communicative process activated by the NGOs the conduct of states is assessed in terms of the binary code 1egaUillegal regardless of any breach of international law obligations. The irony is that, to carry out their functions effectively, NGOs themselves need to be protected (Wiseberg, 1991). The efficacy of their action may be hampered by governments by a variety of means, such as restricting the right to freedom of association and expressian or denying the recognition of legal personality to NGOs (Posner, 1994). In this respect it is worth mentioning that, in 1991, the European Convention on the Recognition of the Legal Personality of International NGOs came into force, providing for the mutual recognition of transnational NGOs (Sobrino Heredia, 1990). The other relevant issue is that of access to intergovernmental organizations. As far as the United Nations is concerned, criteria for granting consultative status to NGOs are set in Resolution 1296 (XLIV) of 23 May 1968 of the UN Economic and Social Council (Centre for Human Rights, 1988: 30). In the framework of the Council of Europe, Resolution (72) 35 of the Committee of Ministers lays down rules on the relations of the organization with NGOs (Drzemczewski, 1987: 276). Other ad hoc arrangements regulate the relations of NGOs with other international organizations or with organs set up in the framework of particular treaties. As to the objection that the source of validation or legitimation for NGOs' participation in international law-making or law-enforcement mechanisms has to be traced to states' consent, the following point can be made. Such a
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formal argument loses much of its force when it is realized that states have limited control over the relevant conduct of NGOs once the latter are allowed to participate either formally or informally in the production, supervision of compliance or actual implementation of international norms. As has rightly been pointed out (Willetts, 1982: 182), the assumption that national representatives in international organizations follow scrupulously instructions from their governments may be misleading. Most of the time instructions are vague; they can be interpreted and can even be ignored. This is why well prepared and well informed NGO observers attending meetings can play a significant role in fostering the cause of human rights.
HUMAN RIGHTS NETWORKS AND OTHER COMMUNICATIVE PROCESSES OF A GLOBAL CHARACTER A functional analysis approach suggests that a distinction should be made between non-governmental organizations and other networks of a private character which operate in the field of human rights. In particular, professional networks should be the object of a separate analysis, for they draw their identity from not being exclusively devoted to just one issue, unlike non-governmental organizations which see themselves as the antithesis of governmental organizations and which focus mostly on human rights abuses committed by states. Professional associations perform functions and have characteristics which do not necessarily coincide with those of NG0s.- That is why functional typologieshave. been proposed that are remarkably different from those elaborated" with regard to NGOs (Wright, 1989: 191). The informality of communication and the frequent lack of permanent organizational structures are distinctive features of many such networks. Another distinctive feature of professional networks is the building of transnational solidarity on the basis of such commonalities as research interests, vocation and ethical standards. The medical and legal professions are particularly relevant in this context. Professional networks of physicians may give humanitarian assistance, provide expert testimony during trials involving violations of human rights and help investigate human rights abuses. Lawyers may educate the public on their rights and provide advocacy on behalf of individuals and groups. Both categories foster the establishment and maintenance of professional ethical standards25which are fundamental in preventing complicity and connivance with human rights violations. Also, academic networking can be seen as a powerful instrument. Beside providing contacts for the sharing of common areas of research, interest groups on human rights issues help with the process of updating
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current developments and in some instances may provide useful instruments for advocacy (Paust, 1985).26 However, a crucial aspect of the activities of professional networks is the collection, processing and dissemination of information. The reliability and credibility of transnational organizations depend very much on how this
function is performed. The strong emphasis put on information processing is thoroughly justified when one realizes that '[tlhe politicization of human rights in the international arena has placed the burden of proof on the organizations and/or the victim of the violations' (Wright 1989: 192). Informational networks are greatly facilitated by the fast pace of technological progress. It suffices here to mention the enormous amount of information already available on the Internet. E-mail and similar methods of long-distance communication may favour human rights activists in providing relief to victims of human rights violations by hastening and broadening the dissemination of information. Arguably, this might improve the chances of mounting international pressure on states that violate human rights and favour the development of cooperation among non-state actors with a view to elaborating joint and more efficient strategies of intervention. Further, they promote interest and discussion groups whose communication and interaction will make cyberspace bypassers or regular servers more sensitive to human rights issues. Given the still scant number of studies on the likely impact of these new technologies on future social behaviour, let alone law-making processes, the above consideration falls short of any scientific accuracy. However, it would be too simplistic a logic to dismiss the issue as one pertaining to the realm of fantasy. Even at the present stage of development of such new systems of communication and interaction, it is reasonable to speculate that they will contribute to creating favourable conditions for the establishment of a global society which transcends national boundaries. The creation of global communicative processes is not uncommon in the contemporary world (Luhmann, 1993: 572). What makes the emergence of a global law apparently different from other similar-social processes is that it observes social action 'under the binary code of legalhllegal' (Teubner, Chapter 1 in this volume, p. 12). The traditional meaning that such a binary code takes on in both national and international law with reference to the actual content of rules enacted in accordance with established legal processes can be misleading if it is transposed lock, stock and barrel to the context of a prospective global law of human rights. In fact, the development between different actors operating on a global scale of a fairly homogeneous standard of communication, made up of codes which are peculiar to the field of human rights, favdurs the merging of moral aspirations and shared ideas into common values and principles which provide the standards against
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which the legality of conduct is tested. It should be stressed that in such a complex process it is mainly NGOs, interest groups and professional networks operating in civil society that act as a catalyst to 'create the public understanding of human rights' (Brett, 1993: 23). By changing the information and environment in which state actors operate (Sikkink, 1993: 441) they may alter human rights practices and eventually mandate new modalities in international law-making.
THE DEVELOPMENT OF TUNSNATIONAL SOLIDARITIES AMONG DOMESTIC COURTS: INTERPRETIVE TOOLS AND LEGAL ARGUMENTATION TECHNIQUES INSTRUMENTAL TO GLOBALIZATION The distinction between state and non-state actors is inaccurate to the extent that it fails to explain all the instances in which traditional participants in state law-making processes, such as domestic courts, seem to enforce principles and values regardless of whether those values have been transposed into domestic binding rules. This assessment presupposes, perhaps unfairly, that state actors are expected invariably to foster interests and values that are peculiar to their national legal systems. As exemplified below this is not always the case. .By means of particular interpretive and legal argumentation techniques judges have occasionally implemented international human rights at the risk of causing embarrassment to their national state or to foreign countries. In the famous case of Filartiga v. Pena Irala, .decided by the United States Court of Appeals for the Second Circuit in 1 9 8 0 , some ~ ~ citizens of Paraguay sought relief against another citizen of Paraguay accused of having tortured and caused the death of a relative of the plaintiffs in Paraguay. The defendant was a police officer who had allegedly committed the crime in retaliation for the political convictions and beliefs of the victim's father. Given the absence of any relevant connection with the United States, the district court had dismissed the claim for want of subject-matter jurisdiction. The Court of Appeals resorted to an eighteenth-century statute which had hardly ever been applied until then. The Alien Tort Claims Act of 1789 permitted an alien to bring a civil action in a federal court for a tort committed in violation of the law of nations (Burley, 1989).28 The Court held that an act of torture materializes a violation of the international law of human rights and that, therefore, it had jurisdiction over the case. The reasoning of the Court in Filartiga is worth examining in more detail. In the absence of other bases of jurisdiction under its domestic law, the Court, rather than dismiss a case hardly related to the interests of the United
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States, revived an old statute and interpreted it in such a way as to justify granting jurisdiction over the case. In order to trigger off the applicability of the jurisdictional provision of the ATCA, the Court had to demonstrate that the alleged conduct of the defendant materialized a violation of the law of nations. It should be recalled that, at the time, the U N Convention on Torture had not yet been adopted and the United States was not a party either to the U S Covenant on Civil and Political Rights'br to the inter-American Convention on Human ~ i ~ h t which s , ~ contain ~ express prohibitions of t~rture.~ Therefore ' the Court was bound to demonstrate the existence of an international customary rule prohibiting torture. Besides a doctrinal commitment to it, the principle had found hardly any judicial application. The Court achieved this goal by referring to 'the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world (in principle if not in practice)'. The Court's self-praising assessment of its judgement as 'a small but important step in the fulfillment of the ageless dreams to free all people from brutal violence' is fairly telling of the rationale of the rule of.decision. Moreover, the Court qualified the torturer as hostis humani generis - an enemy of all mankind - whose conduct could be punished by any state. Filartiga seemed to pave the way for the establishment of a principle of universal jurisdiction over grave human rights violations (Bodansky, 199 1). Individual accountability before the domestic courts of any state for violations of international human rights other than war crimes was almost a novelty. The fear of transforming domestic courts into international tribunals and the ensuing embarrassment for the international relations of the state to which the Court belongs have prevented the development of a pattern of judicial decisions along these lines. However, the precedential and symbolic value of Filartiga remains there to attest to the willingness of domestic courts to foster values and principles which are perceived to be universal. In this respect, judges seem to act more as the law-enforcement officers of a global order than as mere instrumentalities of national legal systems. Another example of the way domestic courts may foster normative values, regardless of their domestic law, may be apt in the present context. One of the principal hindrances to the adjudication and enforcement of international human rights by domestic courts is the doctrine of state immunity (Schreuer, 1988). Traditionally, foreign states are deemed to be immune under international law for acts carried out in their capacity of sovereign entities (acts jure imperii), whereas the exercise of jurisdiction over a state's commercial activities or other acts of a private nature (acts jure gestionis) is commonly admitted. This regime is reflected also in :he domestic legislation of many states, which is meant to incorporate international legal standards.
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The increasing resort of individuals to domestic courts to seek redress for violations of human rights committed by foreign states has unveiled the inadequacy of the above paradigm. A strict interpretation of the international law of state immunity inevitably leads to the granting of immunity to human rights violators. Highly politicized judicial bodies such as the United States Supreme Court have adopted such a stance. In the recently decided case, Saudi Arabia v. els son,^^ for instance, the US Supreme Court characterized the acts of torture committed by Saudi police officers as sovereign acts entitled to immunity. Lower courts have taken a totally different attitude and have resorted to a variety of interpretive means to avoid granting immunity to violators of human rights (Bianchi, 1994). For instance, the Court of Appeals in the above-mentioned Nelson case recharacterized the case in order to make it amenable to the commercial activity exception to immunity.33It held that the hiring of Nelson in the United States was a commercial activity carried out in the forum by the foreign state and that, consequently, immunity should not be granted. Quite obviously, the relevant activity of the foreign state to be characterized was, rather, the acts of torture committed by state officials. The interpretative device resorted to by the Court scarcely conceals its determination not to grant immunity regardless of national and international law. In other instances domestic courts have used an interpretative rule of statutory construction which is common to many jurisdictions - namely, the presumption' of conformity. of domestic law with international law. By simply postulating that international law does not grant immunity to foreign states that violate international human rights they refuse to interpret the domestic law on state immunity contrary to international law (Conforti? 1988: 56-7).34Recently, a UK court has employed similar reasoning to deny state immunity to a foreign state that had tortured an i n d i v i d ~ a l Other .~~ means to dispense with the old-fashioned doctrine of sovereign immunity include the broad interpretation of exceptions which are recurrent in national codification^^^ and the argument based on the peremptory character of international human rights norms, which would prevail over other rules of international law such as state immunity.37 Similar reasoning has been occasionally used to deny immunity to the organs of a foreign state that had violated fundamental human rights.38 The case of sovereign immunity is particularly illustrative of the role that judges may play in advancing human rights even when their national governments support the interests of foreign states. In a number of cases involving human rights violations by foreign states the US government filed briefs as amicus curiae, submitting that immunity should be granted. When both international and national law contrive to shield the state and its organs behind the screen of immunity to defeat legitimate individual
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claims (Lauterpacht, 1951: 235), judges extensively resort to interpretative instruments which break up the constraints put on them by domestic or international rules. This is particularly so when the application of these rules would be inconsistent with the objective of protecting human rights. Given that legal interpretation presents 'a good deal of similarity among systems belonging to significantly different legal, constitutional and political traditions ...' (MacCormick and Summers, 1991: 532) the development of a consistent pattern of judicial decisions - which, by means of interpretation and legal reasoning techniques, foster transnationally shared values - may ultimately contribute to the globalization of the law of human rights. As one commentator has stated '[tlhe jurisdictional discourse at once reflects a belief in a shared set of interpretative commitments and creates, by their consistent use, the belief itself' (Note, 1990: 1290). In traditional jurisdictional discourse territory, citizenship and national interest are common values. The transnational solidarities that any discourse on human rights necessarily implies might, in the not-too-distant future, pave the way for jurisdictional assertions based, on a different set of values. Such global concerns as the protection of human rights or the environment might very well provide common ground for developing new jurisdictional patterns which transcend national boundaries. The examples of judicial determinations . . step in that direction. pre~ented~above may be regarded as a- concrete A FRAGMENTED GLOBALIZATION: ISSUES OF
INSTITUTIONALIZATION AND COORDINATION In the attempt to trace a tendency towards the globalization of human rights law, one might be disillusioned to observe that the institutionalization and coordination of non-state actors' activities closely follow the arrangements provided by international law instruments and institutions. A high degree of institutionalization exists at regional levels where sophisticated international human rights treaty regimes have been developed. Coordination is ensured by such formal mechanisms as consistency clauses in international agreements or by resolution or other soft law instruments enacted by international organizations. As with other processes of gradual transformation, the increasing activism of non-state.actors in an international community of states has not yet generated a system which is independent of international law. The latter provides the means of intervention and constrains participation of non-state actors by means of specific rules, mostly of a procedural character. .Such a state of affairs should not be seen as a sign of the indissoluble link between international legal processes and state actors. On the contrary, state
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and non-state actors frequently act in a complementary way and can be deemed to perform different functions with some areas of overlap. At the present stage of development of international human rights law, international organizations and international binding rules still provide the framework of the legal discourse. Non-state actors strengthen this regime by promoting respect for human rights and by inducing compliance with international standards, sometimes even beyond the scope of application of international obligations. By mobilizing the public and drawing attention to state conduct which does riot conform with international standards, non-state actors exert effective control on international legal processes. Occasionally, they substitute for state actors for the purpose of triggering off sanctions or amplifying their negative consequences. The mobilization of shame on the state at fault is a good example of how non-state actors may contribute to sanctioning violations and fostering compliance. Further reasons exist not to evaluate negatively the parallel institutionalization of state and non-state actors' activities in the field of human rights. A consistent pattern of intervention by non-state actors in highly institutionalized regional frameworks may also lead in time to the general acceptance of such a practice in different contexts. In this respect, regionalization may be seen as instrumental to globalization. Moreover, such factors as the growing bureaucratization of human rights within the United Nations may be fertile ground for the activism of NGOs. States find it difficult to exercise strict control on all the fora in which human rights issues are discussed at the UN. Therefore, the institutionalization of human rights can be a means to channel human rights claims by non-state actors and of amplifying their international impact. Via different institutional centres with which they develop affiliations, non-state actors operate, drawing their legitimacy from a strong social commitment to human values which are perceived to be fundamental for the dignity and the well-being of humankind. Given the structural constraints of an international community which is still predominantly state-centred, nonstate actors are often bound to act in the interstices. The coupling of their action with transnational social processes, which strongly support initiatives to foster the values enshrined in human rights and exercise pressure on national governments and international organizations, sets off a process of globalization which goes beyond the normative structure of current international arrangements. Over time, the episodic character of non-state actors' participation in human rights law-making and law-enforcement processes may develop into a pattern and eventually achieve a dynamic stability. As to coordination, it may be necessary to achieve a satisfactory level of efficacy. For instance, the coordination of different NGOs in the negotiating
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process of the UN Convention on the Rights of the Child ensured a much greater influence on the intergovernmental working group which prepared the draft treaty. In other instances, coordination may not be necessary. When NGOs are engaged in investigative procedures with the aim of disclosing human rights violations or when the mobilization of wide sectors o f the
public is crucial for the exercise of pressure on state actors, the more actors participating in the collection and subsequent diffusion of relevant information the better. Under specific circumstances, however, some degree of coordination may be compelling. The discrete character of many inspections carried out by the ICRC in places of detention may be fundamental to ensuring the cooperation of the state involved. Should other groups act in a more overt and hostile manner towards that state at the same time, the protection of detainees may be jeopardized. One final remark on coordination is in order: if one accepts the idea that independent judges (Jones, 1991) sitting on international andlor domestic courts may play an active role in the protection of individual rights regardless of their allegiance to domestic legal systems, than the osmosis occurring in the European context between international and national courts in the field of human rights might be of note. As is known, nothing in the constitutive treaties of the European Community provided a legal basis for the development of a doctrine of human rights. Nevertheless, the ECJ, with the decisive contribution of some national courts, developed such a doctrine over the years by resorting extensively to the concept of implied powers. It did so by drawing on the general principles of Community law which were interpreted to include the protection of fundamental rights, inspired by the constitutional traditions common to the Member States (Hartley, 1988: 1 3 2 ) . Later ~ ~ the Court referred also to international treaties of which the Member States are signatories such as the European Convention on Human ~ i ~ h tThe s . judicially ~ ~ made doctrine of human rights elaborated by the ECJ (Francioni, 1992: 195 ff.) is now codified in Article F of the Maastricht Treaty. At present the interaction of national courts, the European Court of Human Rights and the European Court of Justice represents a highly integrated system of judicial control (JacquC, 1993) whose jurisprudence can be legitimately deemed to constitute a European public order of human rights which transcends national frontiers.
THE GLOBALIZATION OF HUMAN RIGHTS LAW VIA THE DYNAMICS OF A GLOBAL CIVIL SOCIETY: PROBLEMS AND PROSPECTS The inevitable breaking away from the old positivistic paradigm of state
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sovereignty and the changed relation of the individual to the state (D'Amato, 1987: 89) are the direct effect of the introduction of the human rights doctrine in international law and the necessary prerequisite for the development of a global law of human rights. It has to be conceded that the law of the international community is still state-oriented (Pisillo Mazzeschi, 1994: 65). However, states can no longer be regarded as its only subjects (Jennings and Watts, 1992, 11: 848). Non-state actors contribute to the production, interpretation and implementation of international norms either directly or indirectly. They have contributed also to highlighting a core of basic values and common concerns upon which to found a new normative framework. Even entities which would traditionally deserve the qualification of state actors, such as domestic courts, occasionally act to foster or implement normative values which do not necessarily coincide with the interests of states. Earlier attempts to advance a normative theory of international law as a set of decision-making processes influenced by a variety of actors (McDougal, 1960; McDougal et al., 1967) were perhaps too quickly dismissed on the ground that they lacked any empirical evidence of their validity (Johnston, 1988: 285). Some of those theories inspired by a policy science approach to normativity even postulated human dignity as the basic value of international society (McDougal et al., 1980; McDougal and Lasswell, 1985). It might be that times were not quite ripe to advance such ideas or that their presentation or their idealistic inspirational motive did not sound entirely convincing. Be that as it may, contemporary practice shows that international human rights law is better described as a process rather than as a set of normative prescriptions and that the range of entities that participate in it has expanded to include several non-state actors. The dialectic between state and non-state actors in the prospective shaping of a global human rights doctrine cannot be comprehended if one does not include in the spectrum of relevant participants an additional actor: public opinion. Long kept at bay by the Hegelian organicistic conception of the state, public opinion has come to the fore once more, due to the major changes that have recently taken place in contemporary societies. The increasing role of the media has caused policy- and law-making mechanisms to become increasingly influenced by public opinion. The quest for consensus and legitimacy by decision-makers causes any legal or political stance to be subjected to a prior evaluation of its foreseeable impact on the public. Given the somewhat indefinite character of public opinion, nongovernmental organizations that promote human rights can shape its perceptions and direct the ensuing reactions. In this respect NGOs and all the other actors already mentioned in this chapter may link up the demand5 of a prospective transnational civil society and the international law machinery in
which they have started playing a more active role. It is these actors that create our understanding of human rights and mobilize shame against states, sometimes independently of the existence of binding obligations under international law. By attracting media coverage and changing the information environment in which state actors operate they also tend to modify law-making, adjudication and enforcement processes. The efficacy of such pressure is enhanced and legitimized by its roots in a widespread sentiment that certain human values need to be protected. The contour of such a value judgement is difficult to define. It hovers over the edges of the legal, the political and the moral (Little, 1993: 82). Concrete examples of this interaction can be traced in the recent practice of the UN Security Council which has expanded its authority under Chapter V1I of the UN Charter to cover situations in which grave and massive violations of human rights are committed. The public outrage raised by the appalling media reports of the atrocities occurring in both Somalia and Rwanda (Luhmann, 1993: 574) promoted governmental actions and humanitarian interventions under the auspices of the United ~ a t i o n s . ~ ' Although the legality of the above practice. is doubtful if one .looks at the wording'of Chapter VII of the UN Charter,'its legitimacy in the' light of th& values and principles enshrined in the Charter can hardly be questioned. Similar considerations apply to the establishment by the Security Council of the international tribunal for the prosecution of crimes committed in the territory of the former ~ u g o s l a v i a .Were ~ ~ it not for the universal condemnation of the heinous crimes committed during the conflict and for their vast echo in the media, it would have been difficult to achieve the degree of international consensus which was necessary to establish the tribunal. It is no mere coincidence that, parallel to the establishment of the tribunal, negotiations on the creation of an international criminal tribunal were revived (Crawford, 1994). The explicit inclusion of rape in the list of international law crimes can also be seen as an achievement partially promoted by non-state actors. In particular, the interpretation of relevant instruments of the law of war by jurists and by such non-governmental organizations as the International Committee of the Red Cross has had a remarkable influence in favouring the explicit qualification of rape as a crime under international law (Meron, 1993). This peculiar process of interaction between traditional international law mechanisms and transnational social processes with the mediation of nonstate actors is a novel method of law-making and law enforcement and certainly one worth exploring (Banarjee, 1991: 178; Evan, 199 1 ; Conforti, 1991: 1 16). However, excessive reliance on public opinion for the creation of communicative processes, in which legal evaluations are made and concrete actions are taken on the basis of value judgements which transcend
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morals, law and politics, is not an exercise without risks. The somewhat amorphous character of public opinion and its particular resilience make it subject to fluctuation and manipulation. It can be used instrumentally for many different purposes to coerce states or international organizations to adopt a certain conduct or to opt for specific policy options which may not coincide with their stated purposes. Common sense suggests that the way information is gathered, processed and disseminated, thus changing the information environment in which state actors operate, is never a completely neutral process (Miiller, 1983: 145 ff.). The chances of creating coherent patterns of conduct and j,udgement, which are at the basis of any process of globalization, depend also on how consistently non-state actors will operate and on whether their action will be perceived as legitimate in the light of the goals they pursue. In the attempt to conceive of human rights as a fundamental element of a future global civil society several obstacles may stand in the way. The first one is concerned with the intellectual debate on their foundation (Shestack, 1984; Haarscher, 1991). It has been alleged that the lack of a commonly shared philosophical foundation upon which to promote a uniform interpretation might hamper any global or universal theory of human rights (contra TCson, 1985; D'Amato, 1993-4). Similarly, the apparently irreconcilable cultural differences existing in the international community could prevent the emergence of a set of shared values and ultimately thwart the globalization of human rights. It must be conceded that cultural preferences and political ideologies often influence a state's conception of what'human rights are. Prevailing Western notions of human rights as individualistic and inalienable may contrast with other cultural traditions which tend to favour non-adversarial notions of human rights, which are based rather on solidarity and the collective needs or religion (Mayer, 1991; Harries, 1991). The de facro universalization of human rights that materialized with the adoption of the Universal Declaration may help in overcoming this obstacle and shift the focus of analysis from foundation and justification to protection (Ramcharan, 1989). After all, '[s]uch collective international moral judgements presuppose some basic level of shared normative values' (Donoho, 1990-91: 357). Further, the wide participation in the lengthy negotiations that led to the adoption of the two UN Covenants represents the contribution of different political, ideological and religious systems to the elaboration of normative prescriptions which have been later accepted by the vast majority of states. The wide measure of consensus not only on general and abstract propositions but also on a minimum international standard of content attests to the feasibility of conceiving certain prescriptions as potentially global in character. Aa rightly pointed out
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Globa1i:ation of Human Rights
399 203
(Hig~ins.1994: 96) the above objections are mainly advanced by states. As the T~enanmenSquare massacre and other tragic events show, governments claiming the practical impossibility of any global conception of human rights and their peoples may have divergent views on the substance and basic content of such rights. The above considerations partly apply also to the third objection that might be raised - namely the compelling need to specify which human rights can be the object of a process of globalization. How to set priorities and to resolve conflicts between conflicting values has been an item on the agenda of international law scholars since the very inception of the international human rights doctrine. The possibility of establishing a hierarchy of norms in international human rights law has been investigated and several criteria have been proposed for this purpose (Meron, 1986; Higgins, 1994: 98 ff.). It is not the aim of this chapter to put forward a solution to the above query, which has long been the object of scholarly debate. It suffices here to stress that the globalization of human rights law needs to be anchored in values that are sufficiently shared to be effectively fostered by a variety of transnational actors. International legal rules or standards may provide useful hints as to which values enjoy such a wide measure of consensus (Humana, 1992). To concentrate on those values may help promote transnational solidarities and ensure their effective protection (Galtung, 1992: 169). The way the above difficulties will be handled and possibly solved is decisive for the development of a future global law of human rights. The universalization of human rights via traditional international law-making mechanisms and their globalization via the dynamics of a transnational civil society need not be regarded as parallel processes of a different nature. In fact, they converge in that they both establish consensus on certain basic values of human dignity (Higgins, 1994: 96; Luhmann, 1993: 580; Henkin, 1992: 344; Nino, 1991: 37; Dworkin, 1977: 198) and create a communicative process whereby the conduct of states is evaluated on the basis of the binary code, legal/illegal. The acknowledgement of the existence of a variety of diverse legal discourses, loosely coordinated and interacting with one another, may very well clash with the orthodox canons of legal positivismrA theory of legal pluralism, however, may better explain the complexities of the contemporary international community which is already a global society - at least in aspirational terms. After all, it would not be the first time that structural changes in society and law are driven by the revolutionary force of ideals. The achievement of a global society may not be such a remote goal as it might appear. It is just a matter of gradually adjusting the conceptual tools with which we interpret the reality of the law of the international community to the changes that have already occurred (Schreuer, 1993: 470) and to the values that we want to foster. This is why the globalization of human rights
400
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law is also an intellectual task. 'The good order of a self-ordering society' or Eunomia, as envisaged in the awesome portrait of a prospective international society recently drawn by an international law scholar (Allott, 1990: 420), or any other idea of a future global civil society needs to be built on values. To realize that human rights are one, and perhaps the most important, of such values and to acknowledge that any entity is entitled by law to participate in their fulfilment is already a way to materialize its advent.
NOTES The Universal Declaration of Human Rights was adopted on 10 December, 1948 by the General Assembly of the United Nations (Res 217, 111 1948). The text of the Declaration is reproduced in Human Rights. A Compilation of International Instruments, New York: UN Publications, 1988, 1 ff. International Covenant on Civil and Political Rights (see International Legal Materials, 6, 1967, 368) and International Covenant on Economic, Social and Cultural Rights (International Legal Materials, 6, 1967, 360). Adopted and opened for signature and accession by GA Res. 2200 A (XXI) of 16 December 1966. The former entered into force on 23 May 1976 and the latter on 3 January 1976. On consensualism or 'The dependency of international law on the will of states' see Schachter (1991: 9 ff.). A short summary of theories of states' consent as the basis of obligation in international law is provided in Higgins (1994: 13 ff.). The issue of consent is particularly relevant for customary law rules: see Charney (1985, 1989) and Armgio Ruiz (1988). Strong criticism of consensualist theories has been expressed by Koskenniemi (1989: 270 ff.; 1990: 20 ff.). The judgement of the Nuremberg international military tribunal of 1 October 1946 was published in American Journal of International Law 41, 1947, 172. See UN GA Res. 1/95, UN Doc. Al64lAdd.l (1947), 88. See Nationality Decrees in Morocco case, PCIJ Reports, Ser.B., No. 4.24. In this respect one notable example is the Iran-US Claims Tribunal in which individuals have legal standing and may invoke international law principles and rules (see Ait. V of the Declaration of the Government of the Democratic and Popular Republic of Algeria concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran reproduced in It~fernntionulLrgtzl Mnteriirls, 20, 1981,230). When the amending Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Machinery Established Thereby (see Interncrtional Legal Materials, 33, 1994,943) enters into force, individuals M ~ I be allowed to submit applications directly to the new Court without restrictions (see Arl. 34). Borcelontr Traction Light und Power Conlpan~Linlitrd, ICJ Reports, 1979, 32. Art. 53 of the 1969 Vienna Convention on the Law of Treaties (see Internntio~znlLegal Matrri~r1.s.8, 1969, 679) defines a pereniptory norm of general international law as 'a norm accepted and recognized by the international community of states as a whole a: a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character'. Art. 53 further stipulates that a treaty is void if i t conflicts with any such norm. 10 see Art. 19 of the International Law omm mission Draft Code on the Origin of Staie Responsibility: ILC Yearbook, 1980; 11, 27 et seq.
Non-State Actors and International Law
Globalization of Human Rights
401
205
11 See ibid., 1976, 11, 120. 12 The autonomy of the intemational human rights regime is also purported by other developments that have occurred in other areas of international law. For instance. as provided by Art. 60 of the Vienna Convention,on the law of treaties and by customary law, human rights provisions in humanitarian treaties may not be suspended or terminated in the case of a violation being committed by another party. More generally, customary law also prohibits resort to countermeasures which consist of a grave violation of human rights. In the field of reservations to treaty, it is reasonable to infer from recent developments in intemational practice that a particular regime is emerging which partly derogates from the general regime of customary law as codified in the Vienna Convention (Coccia, 1985; Cohen-Jonathan 1989; Marks, 1990). 13 UN GA Res. 46 (XXXIX 1984) in International Legal Materials, 23, 1984, 1027. 14 The text of the Convention is reproduced in ibid., 24, 1985, 535. 15 See ibid., 38, 1989, 1418. 16 For instance, it may be worth recalling that by h e terms of its statute only states may be parties in contentious proceedings before the International Court of Justice (Art. 34). The same Art. 34(2) provides that 'the Court, subject to and in conformity with its Rules, may request of public intemational organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative'. Art. 66 of the Statute regulates participation of states and international organizations in advisory opinions. According to Art. 69(4) of the Rules of Court a 'public international . (see American Journal of organization' is an international organization of. States Infernational Law,73, 1979, 748, at 770). 17 44 Eur. Ct HR (ser.A) [1981]. 18 Similar 1anguage.i~to be found in Protocol 11, Art. 36(2). 19 See Caprrano v. Italy, 119 Eur. Ct HR (ser. A) [1987]. 20 See CalefJ7 v. Italy and Vocaturo v. Italy, 206B-C Eur. Ct HR (ser. A) [1991]. See also Modinos v. Cyprus, 259 Eur. Ct HR (ser. A) [1993]. 21 Observer & Guardian v. United Kingdom, 216 Eur. Ct HR (ser. A) [1991], esp. para. 60; and Sunduy Times v. United Kingdom, 217 Eur. Ct HR (ser. A) [1991]. 22 Soering v. United Kingdom, 161 Eur. Ct HR (ser. A) [1989], para. 102. 23 258B Eur. Ct HR (ser. A) [1993], paras 42, 45, 62. 24 On the human dimension of the former Conference on Security and Cooperation in Europe (now Organization for Security and Cooperation in Europe) see, generally, Buergenthal, 1992. 25 See, for instance, the international codes of medical and psychiatric ethics devoted to the protection of persons from torture and psychiatric abuse: 'Report of the Task Force on Human Rights', American Journal of Psychiatv, 142, 1985, 1393, quoted in Wright (1989: 201, n. 66). 26 See, for instance, the American Society of International Law Interest Group on Human Rights. The Group publishes, at fairly regular intervals, a Newsletter which, besides providing useful information on the members' activities and on current developments in the field of human rights, promotes worldwide cooperation. 27 630 F 2d 876 (2d Cir. 1980). 28 Judiciary Act of 1789, ch. 20, para. 9(b), 1 Stat. 73, 77 (1789), codified at 28 USC para. 1350. 29 It was only on 2 April 1992 that the Senate of the United States gave its advice and consent to the ratification of the Covenant and on 8 June 1992 that the US deposited its instrument of ratification. The Covenant entered into force for the US on 8 September 1992. However, the US attached to its ratification a declaration whereby the Covenant is
402
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206 Global Law Without a State considered as non self-executing. In other words, the Covenant will not create a private cause of action in US courts (see International Legal Materials, 31, 1992, 657). Criticism of the above declaration can be read in Paust (1993). 30 See ibid., 9, 1970, 101. 31 See, respectively, Art. 7 of the Covenant on Civil and Political Rights and Art. 5 of the American Convention. 32 113 S. Ct. 1471 (23 March 1993). 33 923 F.2d 1928 (1 1th Cir. 1991). 34 See, for example, Von Dardel v. Union of Soviet Socialist Republics, 623 F Supp. 246 (DDC 1985). 35 Suleiman Al-Adsani v. Government of Kuwait and others, Court of Appeal (Civil Division), 21 January 1994, in International Law Reports, 100, 1995,465. 36 In the case Letelier v. Chile, 488 F Supp. 665 (DDC 1980) (reproduced also in International Law Reports, 63, 378), the Court interpreted the discretionary act exception to the tort exception to immunity in the following terms: 'Whatever policy options may exist for a foreign country, it has no "discretion" to perpetrate conduct designed to result in the assassination of an individual or individuals, action that is clearly contrary to the precepts of humanity as recognised both in national and international law' (p. 673). 37 See Susana Sideman De Blake et al. v. The Republic of Argentina et a!., 965 F. 2d 699 (9th Circ. 1992) where the court discussed at length the argument based on the peremptory character of the international rule prohibiting torture which would make it prevail over other rules of international law such as state immunity. Eventually, the court was bound to dismiss it and grant immunity in the light of the unfortunate precedent of the US Supreme Court Argentine Republic v. Amerada Hess Shipping Co., 488 US 428, 109 S. Ct 683, 102 1. Ed. 2d 818 [1989]. 38 In order to-avoid the application of both state immunity and the act of state doctrine, courts have distinguished between official and unofficial public acts. In particular, they have held that in case of torture or other clear violations of fundamental human rights the relevant acts of a foreign state's organs cannot be qualified as official public acts. Similar reasoning can be traced in the following cases; Filartiga v. Pena Irala, 630 F. 2d 876 (2d Cir. 1980); Forti v. Suarez Mason, 672 F. Supp. 1531 (ND Cal. 1987) and Evans et 01. v. Avril, 8 12 F. Supp. 207 (SD Florida 1993). 39 See Stuuder v. City of Ulm, Case 29/69, [I9691 ECR 419; Internutionale Handelsgesellschaf, Case 1 1/70, [ 19701 ECR 1 125. 40 See Nold v. Commission, Case 4/73, [I9741 ECR 491; Huuer- v. Lmd Rlwitzhnd-Pjklz, Case 44/79, [ 19791 ECR 3727. 4 1 See Res. 794 of 3 December 1992 on Somalia and Res. 929 of 22 June 1994 on Rwanda. 42 See Resolution 827 of 25 May 1993 whereby the Security Council established the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991.
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Mosler, Hermann ( 1980), The Infrmcrtiorl~rlSociety N.P( 1 Lcgd C ~ ~ i ~ i i l i ~Alphen ilit~. aan de Rijn: Sijthof & Noordhoff. Miiller. Jorg Paul (1983). 'Fundamental rights in democracy'. Hrrrli~riRights Lmt' Jour17u1, 4, 131. Nino, Carlos Santiago (1991), TIze Et1u'c.s of Hltrnarl R;gl?ts, Oxford: Clnrendon Press. Note (1990). 'Constructing the state extraterritorially: jurisdictional discourse. the national interest, and transnational norms', H~rrsordDrr~,Re~.iebr.,103, 1273. Paust, Jordan J. (1985). 'Draft brief concerning claims to foreign sovereign immunity and human rights: nonimmunity for violations of international law under the FSIA', Houston .lorrrnrrl qf Internntionnl LOW;8. 49. Paust, Jordan J. (19931, 'Avoiding "fraudulent" executive policy: analysis of non~ self-execution of the Covenant on Civil and Political Rights', Dr P L I Lclw Relliew. 42, 1257. Picone, Paolo (1983), 'Obblighi reciproci ed obblighi ergo otnnes degli Stati nel campo della protezione internazionale dell'ambiente marino dall'inquinamento' in V. Starace (ed.), Diritto intenzu:ionale e protezioize dell'an~bientemarino, Milan: Giuffit:. Pisillo Mazzeschi, Riccardo (l994), 'La dottrina pura di Kelsen e Irt realts del diritto internazionale contemporaneo', Diritto e Cultura. IV, 43. Posner, Michael H. (1994), 'The establishment of the right of nongovernmental human rights groups to operate' in L. Henkin and J.L. Hargrove (eds), Human Rights for the Next Century, Washington: American Society of International Law, 405-23. Ramcharan, B.G. (1989), The Concept and Present Status of rlte I~iternational Protection of Hurnan Rights. Forty Years After tlze Universal Declaration, Dordrecht/Boston/London: Martinus Nijhoff. Renteln. A. (1985), 'The unanswered challenge of relativism and the consequences for human rights', Human Rights Quarterly, 7, 5 14. Restatement Third of the Foreign Relations Law of the United States, (1987), St Paul, Minnesota: American Law Institute. Schachter, Oscar (199 1 ), International Law in Tlzeory cznd Practice, Dordrecht/Boston/London: Nijhoff. Schreuer, Christoph (1988), Stare Immunity: Some Recent Developments, cambridge: Grotius Publications. Schreuer, Christoph (1993), 'The waning of the sovereign state: towards a new paradigm for international law?', European Journal of hzrerizatiorzal Law, 4,447. Schwebel, Stephen M. (i991), 'Human rights in the World Court', Vcrnderbilt Journnl of Transnational Law, 24, 945. Shelton, Dinah (1994), The participation of nongovernmental organizations in Law, 88, international judicial proceedings'. Antericnn Jo~rrnalof I~~renintior?nl 61 1. Shestack, Jerome J. ( 1 984). 'The jurisprudence of human rights' in T. Meron (ed.), Hurltan Rights in I~zrernarionnlLaw: Legal crnd Po1ic.v Issues, Oxford: Clarendon Press, 69-1 05. ir I'illicite: rles Sicilianos. Linos-Alexandre (1990). Les r~crctionsd~~cenrr~crli.rPes
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2 12 Globcrl Law Without n State contre-nzes~ot-esh In 1Jgitime dkfense, Paris: Librairie GCnCrale de Droit et de Jurisprudence. Sieghart, Paul (1 99 I), 'International human rights law: some current problems' in R. Blackburn and J. Taylor (eds), Hunran Rights for the 1990s. Legal and Ethical Issues, London and New York: Mansell, 24-42. Sikkink, Kathryn (1993), 'Human rights, principled issue-networks, and sovereignty in Latin America', International Organization, 47, 41 1. Sobrino Heredia, JosC M. (1990), 'La determinacibn de la personalidad juridica de las organizaciones internacionales no gubemamentales' Revisra Espafiola de Derecho Inrernncional, 42, 10 1. Sunga, Lyal (1992), Individual Responsibility in International Law for Serious Hunran Rights Violations, Dordrecht/London/Boston: Nijhoff. TCson, Ferdinand0 (1985), 'International human rights and cultural relativism', Krginia Journal of International Lnw, 25, 869. The Work ofthr hternationnl Lnrv Conii~rission( 1 988), (4th edn). New York: United Nations. Thoolen, Hans and Verstappen, Berth (1986), H~rnzanRights Missions: A Study of Organizations, Dordrecht: the Fmt-Finding Prnctice uf Non-Go~)errznze~zt~~l Nijhoff. Weil, Prosper (1983), 'Towards relative normativity in international law?', Americon Jo~rrnalof International Lnrv, 77, 4 13. Weiler. Joseph, Cassese, Antonio and Spinedi, Marina (1989), Intel-narional Crimes of Stair. A Critical Appraisal ofthe ILCS Drcrft Article 19 on State Respoiisibility, BerlinfNew York: de Gruyter. Weissbrodt, David (1984), 'The contribution of international non-governmental organizations to the protection of human rights' in T. Meron (ed.), H~rinanRights in Intern~ltionalLncv, Oxford: Clarendon Press, 403-38. Willets, Peter (1 982), 'The impact of promotional pressure groups on global politics' in Pressrrre Groups in the Global System, London: Pinter. Wiseberg, Laurie S. (1991), 'Protecting human rights activists and NGOs', Hrrnlnn Rights Quurterly, 13, 524. Wiseberg, Laurie S. and Scoble, Harry M. (1979), 'Monitoring Human Rights Violations: the Role of Nongovernmental Organizations' in D.P. Kommers and G.D. Loescher (eds), Hrrmnn Rights and Anrericon Foreign Poliq, Notre Dame, Ind.: Notre Dame University Press: 175-208. Wolf. Francis (1984), 'Human rights and the international Labour Organization' in T. Meron (ed.). Hwnirn Rights in Intrnmrionul Lcirt*: Legd irnd Polic:\v Issrtrs. Oxford: Clarendon Press. 276-305. Wright. Mnrcheta L. (1989). 'Professionals' associations and the protection of human rights', Sri Lmku Jortrncrl of I/ltenlntionul h r v , 1, 183.
Part IV Non-state Actors' Accountability: The Quest for New Paradigms
The Changing International Legal Framework for Dealing with Non-State Actors AUGUST REINISCH*
1. INTRODUCTION Individuals are held civilly liable before national courts for genocide and humanitarian law violations.' Transnationally operating corporations may equally be held liable for human rights abuses by courts in various c o ~ n t r i e s Firms .~ are boycotted by consumers because they or their subsidiaries or even contractors do not comply with basic labour standards in foreign production The acts of international organizations are annulled by international courrs for infringing human rights guarantees of individual^.^ Lending decisions of international financial institutions are reconsidered if they would have a demonstrable negative human rights impact.5 These examples are evidence of a radical change of the way we are dealing with human rights issues today. Human rights seem to be everywhere. But are we still talking about traditional 'human rights law'? Where are the good old days when everyone knew that human rights violations can only be committed by states against individuals? Do 'human rights' provide the correct conceptual framework for the problem areas outlined above? These questions are intrinsically linked to the fact that international as well as national lawyers have traditionally been trained to conceive of human rights as * Participants at the Academy of European Law session at which these lecmres were originally given were very helphl. I am further grateful for the comments made to an earlier version of this paper by Hanspeter Neuhold and Karl Zemanek. I dm also very much indebted to Solveig Kaspar who provided valuable research assistance. This Chapter was finalized in autumn 2002. See the US civil action of Kadic v. Karadzic. infia note 255. See the human rights cases brought, in particular, before US, UK and other Common Law courts. For a discussion see Ralph G Steinhardt, Chapter 6 in chis volume. See the consumer boycotts referred to infa at note 162. See the fundamend rights case-law developed by the ECJ infia note 236. See the reports of the Word Bank Inspection Panel infia at note 77.
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fundamental guarantees and standards of legal protection for individuals against the power, and particularly, against the abuse of power, of states. Over the last half-century, human rights lawyers have fought for and have largely attained general acceptance that these guarantees are not merely contingent rights conferred by the goodwill of sovereign states (with the implication that they can always be taken away again). Instead, a shared understanding has developed that they are inherent and inalienable rights which, leaving aside all the philosophical problems of this concept, at least means that they are no longer at the disposal of states, but form part of international law giving rights and entitlements directly to individuals6 However, these developments have not affected the basic conceptual premise that human rights are limitations of state power, that they apply in the public sphere, and that they protect the (weak) individual against the (strong) state. The introductory examples seem to indicate, however, a radical conceptual change in the way we use and think about human rights. Immediately, a number of theoretical and practical trends come to mind as possible causes of this change: the questioning of the publiclprivate divide: the debate on 'third-party effects' or Driztwirkung of human righw8 the 'good governance' discussion,' and the transfer of powers from states to non-state actors, be it through privatization or by shifting powers to international organizations.10All these are interrelated developments on the level of legal doctrine, of social conditions, of political realities, and the like. They seem to have contributed to a new awareness of the need to protect human rights, beyond the classic paradigm of the powerful state against the weak individual, to include protection against increasingly powerful non-state actors.
2. WHAT IS A 'LEGAL FRAMEWORK'? What do we mean when we talk about a 'legal framework'? Are we talking about rules, about norms, laws, treaties, ethical standards, morality? Does it make sense to conceive of a legal framework as different sources of law? Or should we look at procedures and forums wherein we make legal arguments? Are we talking about political or legal processes? Is the framework defined by national or international courts, political bodies in international organizations, special accountability mechanisms, NGOs, the public, andlor the press? Probably, all of these elements constitute a 'legal framework' in a broad sense wherein we have to come to terms with non-state actors and their human rights See only Rosalyn Higgins, Problems m d Process: InternationaI Law and How We Use it (1994) 96. Feminist Perspective on Human Rights', in Kathleen Mahoney and P. Mahoney (eds), Httman Rights in the Twenty-First Cennoy (1993) 21. "ee lngo von Miinch, Pablo Salvador Coderch, and Josep Ferrer i Riba (eds), Z ~ r rDrittwirkungdrr (1998). See also i12fi.n text at note 169. Grurrd~ecl~te "ee in@ text at note 70. 10 See infix text dt note 195.
' For a feminist critique, see Catherine MacKinnon, 'On Torture: A
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'performance'. Without entering a deeper debate about how to understand, to define and construct, or even deconstruct the notion of a legal framework, I propose to look at a number of elements that are generally considered to form, at least part of, a legal framework: (1) t h e s t a n d a r d s o r behavioural rules themselves, substantive rules i n an
old-fashioned diction; (2) the procedures used in discussing, supervising, and maybe even enforcing
compliance with standards; and finally (3) the institutions, forums, networks, etc. within which procedures are activated to invoke the standards. The traditional instruments under international law, setting standards for human rights protection, were treaties binding the respective contracting parties.11 This standard-setting was accompanied by an increased concerted effort on the part of international organizations and human rights bodies to develop the concept of unwritten human rights law (via customary law or general principles). Under the so-called 1235 and 1503 pocedures12 the UN ECOSOC (and thereby the Human Rights Commission) has assumed powers with regard to 'a consistent pattern of gross and reliably attested' human rights violations even in the absence of any treaty vio~ations.'~ The International Court of Justice (ICJ) has held that the Universal Declaration of Human Rights constitutes at least partly customary international law.14 By and large the human rights discourse was based on the traditional sources of international law as referred to in Article 38(1) of the Statute of the ICJ." 11 Standard-xning via treaty law led, on the universal level, to the two 1966 UN Covenants and to a number of special UN human rights trcatics: International Covenant on Civil and Political Rights (ICCPR), GA. Res. 2200A (XXI), 16 December 1966, 21 U.N. GAOR Supp. (N0.16) at 52, U.N. Doc. M6316 (1966), 999 U.N.T.S. 171; the International Covenant on Economic, Social, and Cultural Rights (ICESCR), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. M6316 (1966). 993 U.N.T.S. 3; the International Convention on thc Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX),Annex, 20 U.N. GAOR Supp. (No.14) at 47, U.N. Doc. N6014 (1966), 660 U.N.T.S. 195; the Convention on the Elimination ofAll Forms of Discrimination Ag;unst Women, G.A. Res. 34/180,34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A134146 (1979), 1249 U.N.T.S. 13; the Convention Against Torture and Other Crucl, Inhuman, or Degrading Trcacmcnt or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A139151 (1984), 1465 U.N.T.S. 85; the Convention on the Rights of rhe Child, G.A. Res. 44/25, Annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. N44149 (1989), 28 ILM (1989) 1448 corrected at l 2 See infia text at note 22. 29 ILM (1990) 1340. " In addition to the fact that under both procedures UN organs investigate the human rights record of states in the absence of any submission by these states to the supervisory mechanism. l4 In the Tehran Huztagcs case the Court held '[w]rongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifesdy incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights'. United States Diplomatic and Consular Staff in Tehran (United States ofAmerica v. Iran), ICJ Reports (1980) 3, 42. l 5 See, however. the scholarly debates about the nature of human rights obligations as customary law andlor general principles of law: See Theodor Meron, Human Rights and Humanitarian Norms ns
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Today's human rights discourse is far more diverse.IGWe are using national law, voluntary codes of conduct, ethical standards, etc." to discuss and analyse state, but increasingly also non-state, behaviour. International organizations18 and ~ ~ 0 are expected more and more not only to advocate. human rights compliance by states, but also to abide by these same rules themselves. The same expectation arises vis-2-vis TNCS.~' The traditional procedures by which human rights issues were addressed were based on treaty obligations by which states agreed to have their human rights record debated, Curtomaty Law (1989); Martti Koskenniemi, 'The Pull of the Mainstream', 88 Michigan Law Rcvicw (1989190) 1952; Bruno Simma and Philip Alston, 'The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles', 12 Ausnalian Year Book of International Law (1992) 88. l 6 In this context Henry Steiner speaks of'an expanding framework of relevant norms': Henry Steiner, Business and Human Rights (1999) 11. " See i n j a text starting at note 29. l a International organizations are understood as inter-governmental organizations created by states (or other international organizations) usually on the basis of a treaty, endowed with a minimum of permanent organs, for the purpose of fulfilling certain common tasks. See C.F. Amerasinghe, Principb of the Institutional Law ofIntcrnational Organimtions (1996), 8. For present purposes, 'international organisations' indudes the group of highly integrated supranational organizations such as the EC and Euratom. l 9 NGOs are usually formed by private persons (individuals, bodies corporate) operating on a transnational level, but regularly associated under a domestic system of law. NGOs are frequently defined negatively by the fict that they are not established by states through a governmend agreement under international law. Cf. ECOSOC Res. 31, UN ESCOR, 49th Sess., Supp. No. I, at 54, U.N. Doc. El19961 96 (1996), stating that '[ajny such [ . . . ] international governmental organization that is not established by agreement shall be considered a non-governmentalorganization for the purpose of these arrangements'. In addition to the requirements of private foundation, international scope, and independence from state influence, there are further rypical features of NGOs, such as the requirement of a minimal organizational structure, of established headquaners, and a non-profic purpose. 'O There are no generally accepted definitions of TNCs (transnauonal corporations), MNCs (multinational corporations), or MNEs (multinational enrerprises). Various attempts have been made. According to the UN Draft Code of Conduct on TNCs, a TNC is an enterprise 'comprising entities in two or more countries, regardless of the legal form and fields of activiry of these entities, which operate under a system of decision-making, permitting coherent policies and a common strategy through one or more decision-making centres, in which the entities are sa linked, by ownership or otherwise, that one or more of them mav be able to exercise a sienificant influence over the activities " of others and, in particular, to share knowledge, resources and responsibilities with the others': Code of Conduct on Transnational Corporations, UN ESCOR, U.N. Doc. E11988139lAdd. 1 (1988). In the more recent Sub-Commission on the Promotion and Protection of Human Rights, 'Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Sec. 20, the term T N C 'refers to an economic entity operating in Rights', EICN.4lSub.2/2003/12lRev.2, more than one country or a cluster of economic entities operating in two or more countries-whatever their legal form, whether in their home country or country of activity, and whether taken individually or collectively'. The ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy defines multinational enterprises as 'enterprises, whether they are of public, mixed or private ownership, which own or control production, distribution, services or other facilities outside of the country in which they are based': International Labour Organisation, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (1977), 17 ILM (1978) 422, para. 6. The OECD used the term MNEs in a similar way. See also P.T. Muchlinski, M~rltinationalEnterprises and the Law (1995) 13.
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discussed, maybe scrutinized, and ultimately even held unlawful.21 This is accompanied by a gradual development of procedures: from 'weak' forms, such as an obligation to file state reports with a treaty body or to accept that individuals complain by way of 'communications', to a full-fledged judicial system with a direct right for
victims to bring claims against states. In addition, some international organizations were able to develop non-treaty based methods of exercising at least some form of human rights supervision (e.g. ECOSOC 1235~'and 1 5 0 3 procedures) ~~ by publicly or confidentially discussing human rights problems with states. The 'mobilization of shame' has also worked in other international organizations, such as the ILO.'* Today, the human rights compliance of non-state actors such as TNCs may be the subject of litigation before national courts, it may be a topic at shareholder meetings, or it may be extensively discussed in the media or addressed by NGOs in a campaign to stop certain labour practices. A far as the institutional framework is concerned, human rights issues were traditionally debated by the political bodies of international organizations. The development of more and more independent institutions, from expert organs, such as the Human Rights committeez5 or the Committee on Economic, Social, and Cultural ~ i ~ h ttos veritable , ~ ~ international tribunals, such as the European Court of Human Rights or the Inter-American Court of Human Rights, was a clear advance in strengthening human rights protection against stares. " See for the UN system Philip Alston and James Crawford (eds), Thc Fumrc of U N Human Rights Treay Monitoring (2000). 22 Economic and Social Council Resolution 1235 (XLII), 42 U.N. ESCOR Supp. -. (No. 1) at 17, U.N. Doc. El4393 (1967). According to this resolution ECOSOC '[a]uthotize[d] the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities [ . . . ] to examine information relevant to gross violations of human rights and fundamental freedoms', and to 'make a thorough study of situations which reveal a consistent pattern of violations of human rights'. 23 Economic and Social Council Resolution 1503 (XLVIII), 48 U.N. ESCOR (NO. 1A) ar 8, U.N. Doc. El4832lAdd.l (1970). In this resolution ECOSOC '[a]uthorize[d] the Sub-commission on Prevention of Discrimination and Protection of Minorities to appoint a working group consisting of not more than twenty-five mcmbcrs, with due rcgard to distribution, to meet once a year in private meetings [ . . . ] to consider all communications [ . . .] together with replies of Governments, if any, which appear to reveal a consistent pattern of gross and reliably attested violations of human rights and Fundamental freedoms within the terms of reference of the Sub-Commission'. O n the two procedures see Philip Alston, 'The Commission on Human Rights', in Philip Alston (ed), Thc U N and Human Rights: A Critical Appraisal (2nd ed. 2004). 24 JamesAvety Joyncc, 'Mobilization of Shame', in The New Politics OfHuman Rights (1978) 79. See aJso Peter R. Bachr, 'Mobilization of the Conscience of Mankind: Conditions of Effectiveness of Human Rights NGOs', in lylrctionr on Invntational L w j o m the Low Counmcs in Honour of Paul dc Waart (1998) 135. 25 Set up in accordance with Arts. 28 et stq. ICCPR, supra note 11. See Dominic McGoldrick, Thc Human Rights Commirtec ( 1 99 1). '6 The Committee on Economic, Social, and Cultural Rights was not set up through the ICESCR. rather it was established by ECOSOC resolution in 1985, Rcs. 1985117 (28 May 1985). See Matthou C.R. Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on its Development (1995); m d Philip Alston, 'The Committee on Economic, Social and Cultural Rights', in Philip Alston (ed), TIJCU N and Human Rights: '4 Critical Appraisal (2nd ed. 7004).
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Today we are confronted with a far wider panoply of institutions concerned with human rights, from national and international courts sitting in judgment over human rights violations committed by corporations or individuals, to accountability mechanisms, such as Inspection Panels of the World Bank and other international financial institutions (IFIS)," scrutinizing the human rights performance of international organizations, political bodies in international organizations, NGOs and their advocacy networks, the media, and the public at large. Change lies in broadening the legal framework, both in the sense of a wider scope of application of substantive norms of behaviour and in the sense of more and more diverse procedures and institutions available where substantive norms can be challenged. This also has repercussions on the way we practise and think about human rights law. Human rights is no longer the arcane sub-field of specialists of public international law, frequently even from other fields of the law such as (domestic) constitutional law. Rather, it has not only become a subject rooted firmly in international law but it has also developed into an increasingly densely interwoven part of international law which can no longer be theoretically or practically separated from the rest of international law.28
3. THE CHANGING FRAMEWORK I propose a rather modest start by trying to search for empirically observable elements of change. What kind of changes can be readily ascertained with regard to human rights and non-state actors? What are the most visible elements of human rights protection against infringements by non-state actors? This inquiry involves only the surface of change. I revert to deeper structural causes later. Let us first focus on two very visible developments: A. The more frequent and increasingly diverse use of codes of conduct addressed directly to non-state actors and B. The increased use of extraterritorial regulation by states of the behaviour of non-state actors. k Increased Use of Codes of Conduct The increased use of codes of conduct applicable to non-state, and especially corporate, behaviour could be seen as a new form of 'privatization' of human rights. Of course, the term 'privatization' is used here not in the sense of Drittlvirkung or 'third-party effect',29 but rather as an allusion to the increased self-regulation instead 27
See infia tort at note 77. See also on the 'intrusion' of human rights law into international law text m f a at note 184. As uscd by Andrew Clapham. Human Righrs in the Priuate Sphere (1993); Andrew Clapham, 'The Privarisation of Human Rights'. 1 E~rropeanHrtmrn Rights Ldw Reuirw (1995) 20. See also in& note 169. 18
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of state regulation. In this sense, 'privatization' of human rights means adopting human rights norms in the form of voluntary codes of conduct without state fiat. With codes of conduct we normally associate legally non-binding rules, usually adopted voluntarily by corporations in order to guide their operations. Their sub-
stance is not limited to human rights, where they may focus on labour and social rights. Rather, they may extend to environmental issues3o and shareholder intere s t ~ . ~But ' codes of conduct ate not only addressed to TNCs: there is a recent trend to extend this type of self-regulation to other non-state actors. The following discussion is structured according to different non-state addressees of codes of conduct.
I . Corporate Coda of Conduct Codes of conduct intended to regulate corporate, in particular TNC, behaviour are not a new phenomenon. In the 1970s, as a response to increased concerns over T N C interference with host state affairs, a first wave of codes of conduct was elaborated in the framework of various international organizations.32 The UN set up a Commission on TNCs, the UNCTC, which was mandated to draw up a comprehensive draft code was made public in 1 9 8 4 . However, ~~ due code of conduct for T N C S . A ~~ to intense controversy surrounding the project, which in many respects suffered from the ideological controversy concerning the New International Economic Order, the UN abandoned its efforts to create such a code of conduct in 1993. In 1994 the Commission on Transnational Corporations became the Commission on International Investment and Transnational The OECD was more successll and produced a code of conduct in 1 ~ 7 6 ~which ' was revised 30 Valerie Ann Zondorak, 'A New Face in Corporate Environmental Responsibility: The Valda Principles', 18 Boston Collrge EnuironmentalAffairs L. Rev. (1991) 457. 3' Disclosure and transparency requirements in codes of conduct are typically aimed at protecting shareholder interests. 32 See on these early codes: Baade, 'Codes of Conduct for Multinational Enterprises: An Introductory Survey', in N. Horn (cd), Legal Problem of Co&s of C o n d z ~ a j Multi~tionaI r Enterprises (1980) 407; Jonathan I. Charney, 'Transnational Corporations and Developing Public International Law', Duke l a w journal (1983) 748; Norbert Horn, 'International Rules for Multinational Enterprises: The ICC, OECD, and ILO Initiatives', 30 American Uhiuersiry Law RNinu (1981) 923; Seymour J. Rubin, 'Transnational Corporations and International Codes of Conduct: A Study of the Relationship Between Legal Cooperarion and Economic Development', 30 American Uniuersiry Law RCuirw ' 81) 903. ECOSOC Res. 1913. UN ESCOR. 57th Sen., 5 December 1974, Supp. No. 1.3, U N Doc. 55701 Add. 1 (1975). 34 See United Nations Draft International Code of Conduct on Transnational Corporations, 23 ILM 626 (1984). See ECOSOC Res 199411, Integration of the Commission on Transnational Corporations into the institutional machinery of the United Nations Conference on Trade dnd Development, 14 July 1994, available at http:llwww.un.orgldocumentslecosoclresl1994/eres1994-l .htm. j6 Cf. Organization for Economic Cooperation and Development (OECD), Guidelines for Multinational Enterprises, 21 June 1976, reprinted in 15 ILM (1976) 969.
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in 2000.~' In 1977, the ILO adopted a 'Declaration of Principles' addressing labour rights and T N C S . ~Traditionally, ~ these codes of conduct were formulated in the framework of international organizations by state representatives or at least under the control of states and were addressed to non-state actors, primarily to corporations. The UNCTC, OECD, and ILO codes are examples of this approach. This international organization-driven formulation and adoption of codes of conduct was succeeded by a generation of private-initiative codes such as the ~ u l l i v a nand ~ ~ the MacBride ~ r i n c i ~ l e s ,the ~ ' Slepak the Miller ~ r i n c i ~ l e s : the ~ Maquiladora Standards of and others.44 Most of these codes, that were very specifically tailored for specific countries and situations, were promoted by highly visible political figures. Trade unions also became more and more involved in the production of such codes. The 1997 'Basic Code of Conduct covering Labour Practices' of the International Confederation of Free Trade is an example. Today we are witnessing a trend towards self-regulation, largely motivated by the wish of TNCs to escape the defensive position in which they found themselves afrer consumer boycotts and litigation. Many recent corporate codes of conduct have been adopted by TNCs themselves~%equently with the collaboration of NGOs. " OECD, Guidelines for Multinational Enterprises, Rwision 2000, htrp:llwww.oecd.orgldafl investmendguidelineslindex.htm;see Steinhardt, rupra note 2, [34-351. 38 International Labour Organization (ILO) 'Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy' 16 November 1977, reprinted in 17 ILM (1978) 423. See also the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up, adopted by the International Labour Conference at its 86th session, Geneva, 18 June 1998, analysed by Steinhardr, rupra 39 See Steinhardt, supra note 2. note 2, at 203-204. 40 The MacBride Principles are nine principles named after the late Scan MacBride in November 1984, aimed at eliminating anti-Catholic discriminarion via U.S. companies doing business in O n both the Sullivan and the Northern Ireland: h~p://wl.umn.edu/humanin/~inks/macbride.htm. MacBride Principles see Christopher McCrudden, 'Human Rights Codes for Transnational Corporations: Whar Can the Sullivan and MacBridc Principles Tell Us?', 19 O@rd Journal of Legal Studies (1999) 167. 4' The Slepak Principles are named after the Soviet emigri and human rights activist Wadimir Slepak, a member of the original Moscow Helsinki Monitoring Group. They were developed for American Jorge F. Perez-Lopa, 'Promoting Respect for companies doing business in the former Soviet Union. Worker Rights Through Business Codes of Conduct', 17 Fordbam Intcrnationallaw Journal (1993), 13. 42 The MilIer Principles were developed by U.S. Representative John Miller (R-WA), aimed at encouraging political freedom and liberalization with the People's Republic of China and Tibet. 43 The Maquiladora Standards of Conduct are directed at US TNCs operating production facilities in Mexico along the U.S.-Mexico border. See http:ilenchantedwebsites.comlmaquiladora/cjm.html. 44 See Lance Compa and Tashia Hinchliffe-Darricarrere, 'Enforcing International Labor Rights Through Corporate Codes of Conduct', 33 Columbia/. Tranmat'l L. (1995) 663; see also Steinhardt, supra note 2 at [5]. 45 Adopted by the ICFTU Executive Board (Brussels, December 1997). Available at http:// w.icftu.orgldisplaydocument.asp?Inde~91209513&hngu~e=ENand at http:liwww.itcilo.it/ english/actrav/teleam/globaliilolguidelic~uco.htm. 46 Scc the list of 'Self-Imposed Company Codes' in Proposed drat? human rights code of conduct for companies, Working paper prepared by Mr David Weissbrodt. Addendum. List of the principal source
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This corresponds with a declining role for international organizations. Sometimes the self-regulation is also carried out within the framework of more or less formal business organizations. The International Chamber of Commerce guidelines are an early example of this,*' the C a w Round Table Principles for Business are a more recent one.48 The UN has also shown renewed interested, with initiatives such as the Global Compact and the Working Group on the Activities of Transnational O n the regional level, too, international organizations have rediscovered codes of conduct. For instance, in the EU, under the label 'corporate social responsibility', the European Commission reacted to the European Parliament's call for a code of conduct for European ~ u l t i n a t i o n a l sby~ ~adopting a Green Paper on a European framework for 'corporate social responsibility',51 defined as 'a concept whereby companies integrate social and environmental concerns in their business operations and in their interaction with their stakeholders on a voluntary basis'.52 One of the purposes of such EU action is to develop a legally binding framework to address issues of verification and monitoring. It is exactly such problems of the supervision of compliance and enforcement of codes of conduct which have brought back the governments, at least as facilitators or negotiators. For instance, the US Fair Labor Association includes NGOs, lawyers, and government representatives.53In the UK, materials for the draft code of conduct for companies, U.N. Doc. EICN.4/Sub.2/2000/WG.2/WP.1/ Add.2 (25 May 2000). 47 Intmtional Chamber of Commcrrc (ICC) 'Guidelines for International Investment', ICC Pub. No. 272 (1972). 48 The Caux Round Table Principles for Business wereissued in 1994 by senior business leaders from Europe, Japan, and North America 'to express a world standard against which business behavior can be measured.' See http://www.cauxroundtable.org/ENGLISH.HTM. 49 The Global Compact was launched by Secretaty-General Kofi Annan in 1999, Address at the World Economic Forum in Davos, Switzerland (31 January 1999), U.N. Doc. SGlSMl6448 (1999). Information on The Global Compact is available at http:/lwww.unhchr.chlglobal.hun and http:ll www.unglobalcompact.org./. O n 13 August 2003 the UN Sub-Commission on the Promotion and Protection of Human Rights approved and transmitted for adoption to the UN Human Rights Commission the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, E/CN.4ISub.212003/12/Rev.2, available at http:/lwww.unhchr.ch/pdf/55subll2rev2AV.pdf. See Weissbrodt and Kruger, infa Chapter 8. 50 European Parliament (EP), Resolution on EU standards for European Enterprises operating in developing countries: towards a European Code of Conduct, adopted on 15 January 1999, Resolution A4-0508198 of 1998, OJ C 1041180, 14 April 1999. http:l/europa.eu.indeur-lex/pri/en/ojI dat/1999/c~104/c~10419990414en01800184.pdf. 5 1 Commission of the Europeari Communities, Green Paper: Promoting a European Framework for Corporate Social Responsibility, COM (2001) 366 final, 18 July 2001. http:lleuropa.eu.int/eur-led en/com/gpr12001lcom2001~0366en01.pdf.See also in more detail Olivier De Schutter. 'The Accountability of Multinationals for Human Rights Violations in European Law', in+ Chapter 7. 52 Green Paper, supra note 51, para. 20. 53 See hrrp:llwww.fairlabor.org/.Cf. David Kinley, 'Human Rights as Legally Binding or Merely Relevant?', in Stephen Bottomley and David Kinley, CommcrcialLw andHumun Rights (2002) 25, at 34.
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the 'Ethical Trading ~ n i t i a t i v e is ' ~ 'supporting ~ collaboration between business and the voluntary sector in promoting ethical business, including the development of codes of conduct and ways of monitoring and verifying theses codes'.55 Modern codes of conduct clearly focus on TNCs. They have received most public attention and they form the majority of the proliferating field of codes of conduct. Less noticed is the fact that other non-state actors also seem to have been addressed by codes of conduct. 2. Codes o f Conduct for International Organizations Though not usually called 'codes of conduct', international organizations have also increasingly been addressed by (strictly not legally binding) codes that include human rights norms. At first sight, this may seem an odd development. International organizations have now clearly been accepted as subjects of international law.56 Thus, one would rather expect a discussion on whether, in the absence of any treaty law obligation, unwritten human rights norms are legally binding on them. This question has indeed been at the centre of the discussion about the human rights obligations of international organizations for quite some time.57 It was most prominently addressed in the context of the question whether the European Communities are legally bound to respect fundamental rights. It also played an important role with regard to the issue whether UN forces had to comply with the humanitarian rules enshrined in the Geneva Conventions. The underlying tenor of recent developments appears to be that international organizations, as a result of their international legal personality, are considered to be bound by general international law, including any human rights norms, that can be viewed as customary law or as general principles of law. Still, there seems to be enough uncertainty in this area to leave room for voluntary guidelines. The UN's 'voluntary' adoption of its own humanitarian law rules, applicable in UN military operations, may be regarded as an example of human rights-relevant self-regulation by an international organization. In 1999 the U N Secretary-General unilaterally promulgated 'fundamental principles and rules of international humanitarian law applicable to United Nations forces conducting operations under United Nations command and control.'58 This initiative followed years 54 The Ethical Trading Initative was formed in 1997 as an alliance of companies, NGOs, and trade unions operating in the UK, whose aim is to improve labour conditions in the global supply chains which produce goods for the UK market. See http:llwww.erhicdtrade.org/ and h t t p : l l w . eti,org.uk. 55 White Paper, Eliminating World Poverry: A Challenge for the 2lst Century. Cmnd 3789 at 64 (1997), http:l/www.dfid.gov.uk/PoliceAndPrioritici/files/whitepaper1997.pdf, cited in McCcudden, supra note 40, 169. 56 See only Malcolm N. Shaw, International Law (4th ed., 1997), 190. 57 Cf. August Reinisch, 'Securing the Accountabiliry of International Organizations', 7 Global Gouemance (2001) 13 1. Observance by United Nations forces of international humanitarian law, United Narionr, SecretaryGeneral's Bulletin, STISGB11999113, 6 August 1999, reprinted in 81 Intl Rev. Red Cross. No. 836. December 1999. 812: 36 ILM 1656 (1999). See, on the bulletin in general. Daphna Shraga. 'UN
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of legal uncertainty about the relevance of the Geneva Conventions for UN operations.59 Though being a very special case, one might also draw a parallel to the development of human rights protection within the European Union. In the early stages of human rights protecrion against the acts of the supranational European Cornmunities one finds the voluntarily adopted 1977 joint declaration by the European Parliament, the Council, and the Commission to respect human rights in any legislative act."' By this declaration the three institutions pledged to respect these rights in the exercise of their powers under the EC ~reaty." Much of the need to guarantee fundamental rights against Community action was accommodated by the judicially developed human rights protection of the ECJ. However, to some extent the recent, voluntary, 'solemn' declaration of the EU Fundamental Rights Charrer in 2000 may also be regarded as an example of a self-regulatory human rights code.62 Another example of a voluntary code for international organizations which includes human rights norms can be found in the standards for the 'Accountability of International Organisations' currently elaborated by the International Law Association (ILA), a private association of international lawyers.63 It is the ILA Committee's understanding of accountability to focus not only on the issue of Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage', 94 AJIL (2000) 406. 59 The Red Cross has repeatedly called for formal adherence by the United Nations to the Geneva Conventions. The UN's official view, however, has always been that 'the United Nations is not substantively in a position to become a party to the 1949 Convcntions, which contain many obligations that can only be discharged by the exercise of juridical and administrative powers which the Organization does not possess, such as the authority to exercise criminal jurisdiction ovcr members of the Forces, or administrative competence relating to territorial sovereignty. Thus the United Nations is unable,to fulfil obligations which for their execution require the exercise of powers not granted to the Organization, and therefore cannot accede to the Conventions': Legal Opinion of the Secretariat of the United Nations, 'Question of the Possible Accession of Intergovernmental Organizations to the Geneva Conventions for the Protection of War Victims', UN Juridical YB (1972) 153. 60 Joint Declaration by the European Parliament, the Council, and the Commission on Fundamental Rights of 5 April 1977, OJ C 103, 27 April 1977. Available at http:lleuropa.eu.int/eur-leu/cnltreatiesl selected/livre602.hrmL The declaration contains the following nvo operative paragraphs:
1 The European Parliament, the Council and the Commission stress the prime importance they attach to the protection of Fundamental rights, as derived in particular from the constitutions of the Member States and the European Convention for che Protection of Human Rights and Fundamental Freedoms. 2 In the exercise of their powers and in pursuance of the aims of the European Communities they respect and will continue ro respect these rights.'
'" The Charter of Fundamental Rights of the European Union was solemnly proclaimed at the meeting of the European Council hcld in Nicc from 7 to 9 December 2000. Available at http:llue.eu.int/ df/default.asp?lang=en. O3 See the ILA Committee on Accountability of International Organisations which first met at rhc 68th IW Conference 1998 in Taipei, ROC, in Internarional Law Association (ed), Rrport ofthr 68th Confireme (19981, i 8 4 : 1 W Commirtee on Accountability of International Organisations. Second Report, in
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securing accountability by way of procedures and remedies. Rather, the Committee has initiated its work by drafting a set of recommended rules and practices applicable to international organizations in general.
3. Codes of Conductfor NGOs Some NGOs have come under public pressure for their activities. Criticism has been voiced with regard to conduct-sometimes violent street protests-attributable to or at least sponsored and advocated by some NGOs during world economic summits, WTO, World Bank, and IMF meetings, and on other occasions." 4 a response, some NGOs have not only publicly distanced themselves from such acts of violence, but have also adopted codes of conduct as evidence of their adherence to non-violent protests. For instance, the New Economics Foundation (NEF) adopted a code of conduct after the violent protests surrounding the G7 Genoa summit.65 According to the central provision of this 'code of conduct' the NGO pledges to set its 'actions within a framework of non-violence at all times'. A different background for a more critical attitude towards NGOs stems from sometimes questionable advocacy campaigns. NGOs may occasionally, with differing degrees of culpability, make inaccurate or even outright false statements about a potential environmental harm or social damage which, coupled with a threat of inciting consumer boycotts or the like, causes their targets to change behaviour in ways that are sometimes very costly. The controversy surrounding the Brent Spar is a case in point.GGvarious environmental NGOs, among them Greenpeace, .had claimed that scuttling an oil rig owned by Shell in the North Sea posed a serious ecological threat to the region. Despite the company's assurances to the contrary they demanded an expensive alternative of disposing of the oil platform. Subsequently, it turned out that most of the NGO allegations were incorrect. Shell did not recover the additional costs incurred. Incidents like Brent Spar raise a number of troubling questions concerning the accountability of NGOs. In particular, advocacy International Law Association (ed), Report ofthe 69th C o n f m c r (2000), 875. See also Karel Wellens, 'ILA Committee on Accountability of International Organisations', 1 Int'l L. Forum (1999) 107. DL 'Luddites, extremists and the "leftover left"; unaccountable interest groups that undermine the authority of elected officials; armchair radicals from the rich world who have no right to speak for the Third-World poor. Reactions to the recent Prague street protests confirmed that N G O bashing has become a favourite sport for government officials, business and the Press': Mike Edwards, Time to put the N G O House in Order, Finuncial Times, 6 June 2000. Available at htrp://fpc.org.uk~hotnews/writes.See also Lisa Jordan and Peter van Tuijl, Political Responsibility in N G O Advocacy Exploring Emerging Shapes of Global Democracy, Europe's Forum on International Cooperation (April 1998) available at
h~p:/lwww.globalpolicy.org/ngos/role/globdem/credib/2OOO/I117.htrn. 65 Available at hrrp:/lw.neweconomi~~~org/de~dt.asp!t=nrwsarchivc&strN~Re~uest= newsitem&intNewsID= 116. " Elizabeth A. Kirk, 'The 1996 Protocol to the London Dumping Convention and the Brent Spar', 46 ICLQ (1997) 957; Peter J. Spiro, 'New Global Potentates: Nongovernmental Organizations and the "Unregulated" Marketplace', 18 Cardow L w Review (1996) 957, at 964.
Nun-State Actors and International Law The Changing International Legal Framework NGOs have an immense interest in keeping and protecting their credibility, which is one of their most precious assets, comparable to the goodwill and reputation of business firms. Some NGOs have taken up the challenge and voluntarily adopted their own codes
of conduct. To date, NGOs express 'codes of conduct' focus on conduct relevant in the course of their advocacy. In the field of service provision too, equivalents of codes of conduct have been used.67 One only has to think of the legion of NGOs active in the field of emergency and disaster relief.68 In the course of UN and other international organizations subcontractingG9 they have partly taken over official tasks such as administrative hnctions. It is not difficult to imagine that in the course of such activities their actions may constitute what would be called a human rights violation if committed by a state.
4. Common Background and Motivation for Codes of Conduct Some tentative conclusions as to the origin and shared background of these ethically inspired codes of conduct may be drawn. It appears that all these codes are to some extent a result of the 'good governance' debate which appeared under different guises on different levels but which still seems to have enough in common to be identified as a single phenomenon. Similar developments have taken place at different levels, which enable us to identify certain core elements of any good governance debate, such as the emancipation of the governed, accountability, transparency, and participation. The demand for good governance was initially made of states, calling for open and transparent administration, accountability, and the rule of law.70 Under the auspices of the international financial institutions, 'good governance' was demanded of borrowing governments. The underlying idea was a growing awareness that a stable and functioning framework would be a crucial element for enhancing
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See the Codes of Conduct of the International Red Cross (Principles of Conduct for The International Red Cross and Red Crescent Movement and NGOs in Disaster Response Programmes) or the Australian Council for Overseas Aid (Code of Conduct for Non Government Development Organisations). Available at http:l/www.ifrc.org/publicat/conductlcode.asp.and http://www.acfoa. asn.aulcodelcode.PDF. G8 See Ralph Wildc, 'Quis Custodict lpros Cusrodes? Why and How UNHCR Governance of "Developmeni Refugee Camps Should be Subject to International Human Rights Law'. 1 Yak H.R. 8. Drv. L.J. (1998) 107, at 109. 69 Cf. Thomas G. Weiss (ed), Btyond UN Subconnarring Task-sharing with Regional Sccuriy Arrangnnents and Service-providing NGOs (1998). 70 The ILA Committee on Accountability of International Organisations. Second Report, lists the following characteristics as elements of good governance: 'transparency in both the decision-making process and the implementation of the ensuing institutional and operational decisions; a large degree of democracy in the decision-making process; access to information open to all potentially concerned and/or affected by the decisions at stake; the well-functioning of the international civil service; sound financial management; dnd appropriate reporting and evaluation mechanisms': supra note 63, at 878.
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long-term development, as well as repayment capabilities.71 Thus, the IMF and the World Bank started to advocate certain non-economic reforms, initially with a narrower focus, such as the development of an independent judiciary and the fight against corruption,72 then more broadly demanding modernization of the state, consolidation of democratic institutions, protection of human rights and the environment, and social policy reform.73 By the mid-1990s 'good governance' had become an important area of attention for the IMF.~*At the regional level, the debate about EU accession and its political preconditions, as laid down in the 'Copenhagen criteria',75 can also be viewed as a 'good governance' issue. Once the 'good governance' box was opened, its demands could not be limited to states. lncreasi'ngly, international organizations were also confronted with requests for 'good governance'.76 As institutional responses, again under the guidance of the international financial institutions, Inspection Panels were set up, first by the World Bank and subsequently by other development banks.77 Other organizations, such as the EU, created ombudsman offices7' in order to rectify instances of rnaladministration, the opposite of 'good governance'. Also at the universal level, organizations can no longer avoid being questioned about their governance. In the wake of the , ~ ~UN has undertaken report of the UN Commission on Global ~ o v e r n a n c e the " Michel Camdessus, 'Toward a Second Generation of Structural Reform in Latin America', Presentation at the Annual Confrrrncc of the Nationa1 Banks Amciation, Buenos Aires (1997). http:ll www.imf.orglexternallnp/speeches/1997/mds9706.htm. See also Diana Tussie and Maria Pia Riggirozzi, 'Pressing Ahead with New Procedures for Old Machinery: Global Governance and Civil Society', in Volker Rittberger (ed), Global Govonance and the United Nations System (2001) 158, at 168. 72 See World Bank. Helping Countries Combat Corruption: The Role of the WorH Bank (1997), hnp:/lwwwl.worldbank.orglpublicsectorlanticor~ptlcorruptnlcori&.htm.See also Carlos Acufia and M. Fernanda Tuozzo, 'Civil Society Participation in World Bank and Inter-American Development Bank Programs: The Case of Argentine', 6 Global Govcmance (2000) 443. 73 See K. Ginther, E. Denters, and Paul J.I.M. de Waart (eds), Surtainabfe Dcuelopmcnt and Good Govcrnancc (1995). 74 International Monetary Fund, Good Governance: The IMF's Role (1997). Available at hcrp:ll www.imf.orglexternallpubs/ftIe~rpl~overnlgovern.pdf. 75 The 1993 Copenhagen criteria require, inter alia, stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorides; the existence of a functioning market economy as weU as the capacity to cope with competitive pressure and market forces within the Union; the ability to take on the obligauons of membership including adherence to the aims of polidcd, economic, and monetary union. See hnp:/leuropa.eu.intlcomm/enlargementlintmlc~teria.hm. 76 World Bank, Waprnhans Report (1992). The World Bank Inspection Panel was set up in 1993 to provide an independent forum to private citizens who believe that they or their interests have been or could be directly harmed by a project financed by the World Bank. See Steinhardt, supra note 2 at (32-331. See Katja Heede, European Ombudrmnn: Rcdress and Control at Union Level (2000). See also Linda C. Reif (ed), The Intonational Ombudtman Anthology: Sclected Writingr f;om the international Ombudtmun Institute (1999). 7"he Commission on Global Governance was established in 1992 and produced its main report entitled 'Our Global Neighborhood' in 1995. For information on the Commission see hnp:ll www.cgg.ch/.
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Non-State Actors and International Law The Changing International Legal Framework a number of ad hoc reports to scrutinize its own governance record, for instance, in the field of peacekeeping.80 Most directly linked to the issue of codes of conduct for TNCs is the 'corporate governance' debate," nowadays, partly filled with new content, frequently termed as 'social responsibility' d i s c u s ~ i o nThe . ~ ~ debate on the role of corporations and their ethical standards has clearly gone beyond the famous Milton Friedman assertion that the 'only social responsibility of business [is] to increase profits'.83 Even if the 'generation of long-term economic profit' is still considered to be a 'corporation's ~~ 'good governance' clearly requires the balancing of primary ~ b j e c t i v e ' ,corporate all stakeholders' interests, 'stakeholders' being understood as all those who may affect and be affected by a corporation, including investors, employees, creditors, customers, and suppliers.85 But the question remains, if one enlarges the group of stakeholders in corporations beyond the narrow confines of shareholders, how the See The Fall of Srebrenica, U.N. Doc. ,41541549 (15 November 1999), Report of the Secretaly General Pursuant to General Assembly Resolution 53/35; available at http:llwww.un.orglpeacel srebreniapdf. Report of the Rwanda Genocide (15 December 1999); available at hrtp://www.un.org/ Depts/dpkoldpko/reporrs.htm.See also the Brahimi report, Report of the Panel on United Nations Peace Operations, U.N. Doc. A155/305-S/2000/809 (21 August 2000); available at hnp://www.un.org/peace/ reports/peace-operations/. 81 See generally the journal Corporate Govrmancc: An Intrmational Review and Daniel Fischel, 'The Corporate Governance Movement', 35 Vandrrbilt Law Rrvicw (1982) 1259. 82 See only the EU Commission Green Paper Promoting a European Framework for Corporate Social Responsibility, supra note 51. See also United Nations Conference on Trade and Development, The Social Responsibility ofTransnational Corporations, U.N. Doc. UNCTADIITEIIITIMisc.21 (1999) at 6. See also Editorial, Corporate Governance, 'Institutional Investors and Socially Responsible Investment', 10 Corporate Goucrnancc An International Review (2002) 1; John Parkinson, 'The Socially Responsible Company', in Michael K. Addo, (ed), Human Rights Standards and thr Rcsponsibiliiy of Tranrnatiom/ Corporations (1999) 49. 83 The entire quotation is, of course, more encompassing: 'One and only one social responsibility of business [is] to increase profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud': Milton Friedman, Capitalism and Frcedom (1962) 133; see also Milton Friedman, 'The Social Responsibility of a Business is to Increase Profits', N. Y: Times, 13 September 1970 (Magazine) at 32; cited in UN Sub-Commission on the Promotion and Protection of Human Rights, Sessional working group on the working methods and activities of transnational corporations, Transnational Corporations and Other Business Enterprises, E/CN.4/Sub.2/2002/WG.2/ WP.l/Add. 1, 24 May 2002, 15. I. Millstein et al. (OECD Report), Corporate Goummncc: Improving Competitivcncssand Access to Capital in Global Markets (1998) 27. Michael K. Addo, 'Human Rights and Transnational Corporations: An Introduction', in Michael K. Addo (ed), Human Rights Standards and the Responsibility of Transnational Corporations (1999) 3, at 19; Robert McCorquodale, 'Human Rights and Global Business', in Bottomley and Kinley, supra note 53, 89, at 108. See also the wide definition in Sub-commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities ofTransnational Corporations and Other Business Enterprises with Regard to Human Rights, E/CN.4/Sub.2/2003/12/Rev.2, Sec. 22. including 'srockholders, other owners. workers, and their representatives, as well as any other individual or group that is affected by the activities of transnational corporations or other business enterprises', mentioning, inter alia. 'consumer groups, customers, governments, neighbouring communities, indigenous peoples and communities, nongovernmental organizations, public and private lending institutions, suppliers. trade associations, and others'.
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August Reinisch diverse and sometimes contradictory interests of different stakeholders should be reconciled with each other. And surely, as long as ethically responsible behaviour can be translated into long-term profitability, it will be difficult to see whether TNCs are really willing to 'regard ethical and social values as possessing independent value.'8G The good news for human rights is, of course, that-regardless of whether TNCs comply with them as a result of more or less enlightened self-interest-a higher degree of compliance will follow.
5. Problems with Codes of Conduct: The Supervision and Enforcement Defcit It came as no surprise that the self-regulation of non-state actors, in particular of TNCs, entails serious problems. Some codes have been criticized for being more protective of the companies that adopted them than of the people they were intended to protect.87 The supervisory andlor enforcement structures of many TNC-adopted codes are either non-existent or very weak. Thus, mere voluntary codes are frequently perceived to be insufficient to increase TNC human rights accountability effectively.88 It is therefore not surprising that steps 'beyond voluntarism' are demanded.89 The weak structure of codes of conduct is not limited to guidelines adopted by companies. Codes of conduct adopted under the auspices of international organizations also rarely provide for strong supervisory mechanisms. Frequently, they envisage no procedures or institutions at all. Some have adopted weak informal procedures such as the OECD guidelines with their National Contact ~ o i n t or s ~the~ ILO with its Subcommittee on Multinational Enterprises with regard to the ILO Declaration on Fundamental 86
Parkinson, mpra note 82, at 62.
'' According to Lena Ayoub, 'Nike Just Does It-and
Why the United States Shouldn't: The United States' International Obligation to Hold MNCs Accountable for Their Labor Rights Violations Abroad', 11 DcPaul Bw. L.J (1999) 395, at 405,'[wlhile publicized codes of conduct impress consumers and the media, they have been largely ineffective at realizing the goals they purport to represent [ . . . ] due in large part to the lack of any legal enforcement mechanism upon these codes'. See also McCrudden, supra note 40, 168, on the controversy surrounding the Nike and Shell Codes. See UN Sub-Commission on the Promotion and Protection of Human Rights, Sessional working group on the working methods and activities of transnational corporations, Transnational Corporations l,24May 2002,17: 'The use of and Other Business Enterprises, E/CN.4/Sub.2/2002/WG.2/WP.lIAdd. an entirely voluntary system ofadoption and implementation of human rights codes ofconduct, however, is not enough. Voluntary principles have no enforcement mechanisms, they may be adopted by transnational corporations and other businesses enterprises for public relations purposes and have no real impact on the business behavior, and they may reinforce corporate self-governance and hinder efforts to create outside checks and balances.' See International Council on Human Rights (ed), Bryond Voluntarism: Human Rights and thc Devrloping International Legal Obligations of Companies (2002),available at http:l/www.cleanclothes.orgl (iplbeyond~voluntarism.pdf. "O The OECD has demanded the establishment of National Contacr Points for handling inquiries and contributing to the solution of problems that may arise in connection with the OECD Guidelines. It has also set up a Committee on International Investment and Multinational Enterprises (CIME) chat can periodically or at the request of a member country hold an exchange of views on matters related to the Guidelines. See http:/lw.oecd.otg/daflinvestmenclguidelineslfaq.htm. See also Joachim Karl, 'The
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Principles and Rights at work." In this context, it should be noted that, on the EU level, the European Parliament has at least expressed its wish that the planned code of conduct for European ~ u l t i n a t i o n a l sshould ~ ~ constitute a legally binding standard whose implementation should be ensured by a monitoring mechanism.
These.developrnenrs, however, are the exceptions rarher than the rule. The rule still is the weakness of supervisory and enforcement elements in codes of conduct. It is a fascinating phenomenon that they are nevertheless not wholly ineffective. It would not be surprising to find that codes of conduct are regularly ineffective because no enforcement mechanism exists. What is far more astonishing is the Lct that, broadly speaking, codes of conduct are often relatively effective in spite of the absence of any legally enforceable obligations under the codes themselves. A 'realist' answer may be readily available, arguing that all depends upon external pressure: TNCs are willing to abide by human rights standards only if threatened by 'sanctions', such as consumer boycotts, cosdy litigation (maybe involving class actions and punitive damages), or other economic disadvantages as a result of negative publiciry in the media. Similarly, NGOs would only abide by ethical codes if they would otherwise lose contributions; and international organizations would only do so if they were likely to lose the support (including financial and political support) of their member states. While such 'realist perspective' is surely helpll in explaining much of corporate and other non-state behaviour, it remains an interesting aspect of these developments that the extra-legal 'enforcers' (consumers, contributors, member states, etc.) have been willing to use their leverage. The fact that such pressure has been successfully mobilized shows that ethics are not irrelevant.
B. A Revival of Extraterritoriality One way to secure human rights against non-state activities is for states, as primary addressees of international human rights law, to legislate and thus to 'translate' international human rights guarantees into the domestic legal order.93 Primary OECD Guidelines for Multinational Enterprises', in Michael K. Addo (ed), Human Rights Standard and the Rcsponsibiliiy of Transnatiom[ Corporations (1999) 89. " ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted by the Internationd Labour Confercnce at its 86th session, Geneva, 18 June 1998. The ILO Declaration is monitored through a quadrennial survey and through interpretations rendered by the Subcommittee on Multinational Enterprises. As of 15 November 1999, the Subcornminee had received over 23 requests for interpretations with very few passing the test of receivabiliry so that an interpretation has been issued. Follow-up and Promotion March 2000 by Subcommittee on Multinational Enterprises, ILO Doc. GB.277lMNEIl (2000). http://www.ilo.org/public/english/standards/relm/gb/do~/gb277/ 92 European Parliament Resolution, mpra note 50. pdflmne- 1.pdf. 93 This is most clearly expressed in Art 2(2) ICCPR, rupra note 11, providing: 'Where not already provided for by rxisring lcgislarivc or orher measures, each State Parry to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or orhcr measures as may be necessary to give effect to the rights recognized in the present Covenant.'
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legislative tools for this purpose are criminal law provisions protecting life, liberty, property, etc. of individuals against intrusion by other private parties. States may thereby fulfil their obligation under various international instruments, not only 'to respect', but also 'to ensure' or 'to secure' human rightsg4 Where states create domestic legal frameworks which are similar, or at least of a comparable quality, the ensuing level playing field for non-state actors should prevent them from human rights 'forum', or rather 'jurisdiction', shopping. I . Dzfferent National Legal Standardr
A general and broad assimilation of this human rights-relevant national legislation is, however, far from being realized. Instead, domestic legal guarantees and the effective levels of protection are highly diverse. They range from countries which have legislated in a way which broadly requires private parties also to comply with certain human rights norms, such as non-discrimination obligations,95 to states which still have a culture of impunity, leaving unpunished violations of rights of individuals both by the state and by non-state actors. At he far end of this scale one would probably have to list so-called failedgGor rogue statesg7which are no longer able or willing to ensure the minimum of legal security demanded from a state. However, even at the other end, at the high level of legal protection, the differences in national legislation and practice relevant for the enjoyment of human righrs are significant. Thus, non-state actors may deliberately assess regulatory differences and choose specific countries for their operations in order to reduce their legal burdens. This type of calculation may be made primarily by business entities such as TNCs, but it could apply equally to other non-state actors: international organizations will be induced to establish their headquarters and to operate in countries where they will be offered the widest range of privileges and immunities isolating them from the otherwise applicable and enforceable national law. It is said that some countries engage in a veritable 'immunity dumping' in order to attract international organizations. After all, such an approach is nothing but rational behaviour which-if translated into economics-means that TNCs will seek to reduce regulatory costs. This type 'of cost-reduction by regulation-avoidance has frequently been described when 'forum shopping' by TNCs with regard to social or environmental regulations
'*
Cf. Art 2(1) ICCPR, s r p a note 11, Art 1 ECHR, Art 1 AmCHR, infia note 209, and the relevant case-law starting infia text at note 21 1. " See the equal treatment legislation in some states, such as the UK Disabiliry Discrimination Act 1995 (c. 50); French Articles 225-1 to 225-4 Code Pinal, or the Irish Employment Equality Act 1998. 96 See Daniel Thiirer, 'The "Failed State" and International Law', Inrernational Review of rhr Red Cross No. 836 (1999) 731; Matthias Herdegen. 'Der Wegfall effektiver Staatsgewalt im Viilkerrechr: "The Failed State" '. 34 Bmchtc dcr Druuchen Grsellrchjifiir Volkewecht (1996) 68. 17 See Thomas H. Henriksen, 'The Rise and Decline of Rogue States'. 54 /orrmal oj'lxternario~ral Affairs (2001) 349; Petra Minnetop, 'Rogue States: Sure Sponsors of Terrorism?', 3 Griman Luw Journal (1 September 2002). http:ilwww.germanlawjournal.comlpast_issues.php?id= 188#hsl.
Non-State Actors and International Law The Changing International Legal Framework
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is analysed. However, it equally occurs with respect to national legislation intended to protect human rights. The proximity of national labour and social security law to social human rights is an obvious example. It is worth reflecting on the possible responses to reduce or at least mitigate such 'human rights forum shopping' by TNCs. The straightforward and ideal answer would clearly lie in increasing coherence between the diverse national legal frameworks. Legislative harmonization or regulatory assimilation, a process called 'approximation of the law' in the EC context,98 eliminates the incentive for forum shopping. This is as true of human rights as it is of biodiversity, pollution control, or any other legislation. However, it is also a truism that we are currently very far from achieving such an approximation of human rights-relevant national legislation."
2. US and Other Common Law Human Rights,Litigation Thus it is not surprising that, at least sometimes, an alternative option is pursued in order to make TNCs as well as other non-state actors comply with domestically translated human rights obligations. This alternative avenue lies in extending the application of national law to domestic and partly even foreign non-state actors operating abroad.loO In other words, the extraterritorial application of human rights-relevant legal provisions is used to prevent regulatory avoidance strategies of non-state actors. Recent litigation in the US, involving corporations such as Unocal, Shell, Chevron, Texaco, ExxonMobil, and Coca Cola, bears witness to this trend. All these cases are legally based on the Alien Tort Claims Act (ATCA) of 1789.1°' There is also some movement in other common law jurisdiction^.'^^ In the UK tort cases have been filed against British corporations, such as Rio into,"^ Thor
"
Art 94 (ex Art 100) TEC, the central authorization for harmonization measures entitled 'approximation of the laws', gives the European institutions wide-ranging powers of harmonization in areas directly affecting the establishment of the common market. See K. Armstrong and S. Bulmer, The Governance of the Sin& European Market (1998); G. Majone, Regulrrring Europe (1996). O n second thoughts, this is less self-evident than it may seem. More and more states are adhering to the relevant human rights treaties and there is probably an increasing role for customary international law. These developments should contribute to a harmonized body of international human rights law. 100 See Mark Gibney and R David Emerick, 'The Extraterritorial Application of United States Law and the Protection of Human Rights: Holding Multinational Corporations to Domestic and International Standards', 10 Temple Intcmtionaland Comparativc Law Journal (1996) 123; Gregory G.A. Tzeutschler, 'Corporate Violator: The Alien Tort Liability of Transnational Corporations for Human Rights Abuses Abroad', 30 Columbia Human Rights L. Rev. (1999) 359. 101 See genenlly Steinhardt, supra note 2 [19-281. See Richard Meeran. 'The Unveiling of Transnational Corporations: A Direct Approach', in Michael K. Addo (ed), Human Rights Standardr and the Responsibility of Transnational Corporations (1999) 161. Employee of a UK firm in Namibia brought compensation claim for contracting cancer while working at defendant's uranium mine with insufficient heath safeguards: Connellv v. RTZ Corporation plc [I9961 2 W'LR 251; [I9971 3 WLR 373.
"
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~ h e m i c a l s ,and ' ~ ~Cape ~ s b e s t o s for ' ~ ~their activities abroad. Australian litigation against the Australian firm BHP Mining ~ o m ~ a n ~led' Oto~ an out-of-court settlement. In Canada a case was brought against cambior'07 before the courts of Quebec which follows a civil law tradition. The common feature of these tort actions lies in the fact that they are based on a tort theory which recognizes that human rights violations, wherever committed, may trigger legal responsibility. The major (procedural) obstacles to recover damages have been rather technical doctrines, such as forum non conveniens (questioning whether the extraterritorial litigation is appropriate)'08 and the separate legal status of corporations (questioning the appropriateness of piercing the corporate veil in order to hold parents, or sometimes, subsidiaries, liable for the actions of related companies).'09
3. Extraterritoriality and International Law It is interesting to compare this recent 'revival' of extraterritoriality with earlier examples of extraterritoriality, considering that extraterritorial jurisdiction of any kind-whither to prescribe, to adjudicate, or to enforce' 'O-always requires a specific justification in order to be considered lawful under international law. The first wave of extraterritoriality focused on technical, corporate, and business law aspects such as competition law, corrupt practices, accounting, tax law, export controls, etc. In particular, US anti-tmst law was at the forefront of using domestic law to take action against anti-competitive behaviour taking place abroad but having '04 Personal injury claims brought by South African workers against UK firm for negligent failure to take protccrivc measures against mercury poisoning at factory in South Africa: Ngcobo and O t h m v. Thor Chcmicak Holdings Ltd, TLR 10 November 1995:Sithob and Others v. Thor Chemicalr Holdings Ltd and Another, T L R 15 February 1999. ' 0 5 Tort action by South African victims of asbestos mining by defendant company: Lubbe v. Capeplc [2000] 1 WLR 1545;Adams v. Cape Indurniesplc (19901 Ch. 433; [I9911 1 All E.R. 929. 'OG or environmentally harmful activities in Papua New Guinea. The settlement agreement again reached thc courts in Gagarimabu u. Broken Hill Pmprictaty Co Ltd and Another [2001] VSC 517 (21 December 2001). See hnp://www.ausrlii.edu.adadcises/viclVSC/2001/5 17.html. '07 For environmental damage through mining activities in Guyana. Sce htrp://www.businesshumanrights.org/Guyana.htm. Cf. for the English courts Spiliada Maritime Corporation v. Cansuk Ltd 119871 AC 460. Thc forum non rmvenicns argument was rejected by the House of Lords both in Connelb v. RTZ Corporation pL- and in Lubbe, rupra notes 103 and 105. For the US scc the Bhopal case: In rc Union Carbide Carp Gar Plant Disaster, 809 F. 2d 195 (1986).See also Andrew S. Bell, 'Human Rights and Transnational Litigation: Interesting Points of Intcrsection', in Stephcn Boctomky and David Kinky (eds), Commercial Law and Human Rights (2002)1 15:Malcolm J. Rogge, 'Towards Transnational Corporate Accountability in the Global Economy: Challenging the Doctrinc of forum non conveniens in In re: Union Carbide, Alfaro. Sequihua, and Aguinda'. 36 Texas International Law Journal (2001),299. 109 See Stephen Botromley, 'Corporations and Human Rights', in Stephen Bottomley and David Kinley (eds), Commercial Law and Human Rights (2002)47; Meeran, stipra note 102. "" Cf. American Law Institute. Rcsratemrnr (Third) Foreign Relations Law of thc United Smter (1986) 3 401. See also Shaw, supra note j6, 456.
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a substantial, direct, and foreseeable effect within the US."' The A h a case1I2 from the 1940s is the early leading decision establishing the use of the effects doctrine in this field of commercial law. Initially, extraterritoriality was fiercely opposed by the Europeans, in particular by Britain, as an unlawful extension of jurisdicti~n."~ This even led to anti-suit injunctions between English and American courts as well as to blocking and claw-back legislation."4 The Fmebauf affairH5 in the 1960s and the Siberian pipeline dispute116 in the early 1980s are also examples demonstrating the underlying clash of interests about whether the home state of the parent company may compel the subsidiary to act in a particular way abroad. While the Europeans stressed territoriality to fend off any intrusion of US influence on 'their' companies, the Americans invoked personality, control; and effects theory to exercise extraterritorial jurisdiction. With the effects doctrine remaining controversial in a number of areas, it is remarkable that the European Commission, the 'anti-trust enforcement agency' within the EU, and backed by the ECJ,"' has meanwhile adopted the effects principle defacto. It did so by exercising extraterritorial jurisdiction in order to extend the application of EC competition law to include conduct taking place outside the territory of the EU member states. ' I s These traditional examples of extraterritoriality basically involved a clash of national policy goals (securing fair competition law, fighting corrupt practices, erc.) with international law principles of jurisdiction emphasizing territoriality over any form of extraterritoriality. This has to do with the traditional function of international law as a law of co-ordination, separating spheres of competence of states and allocating spheres of jurisdiction within which states are free to act in their national See the formula used in US anti-trust legislation, infia note 122. United States v. Aluminum Co of America, 148 F.2d 416 (2d Cir. 1945). Andrea Bianchi, 'Extraterritorialiry and Export Controls: Some Remarks on the Alleged Antinomy Between European and U.S. Approaches', 35 GUL (1992) 366. For instance the British Protection of Trading Interests Act 1980, ch. 11, reprinted in 21 ILM (1982) 834; the Canadian Forcign Exrraterritorial Measures Act, 3 3 Eliz. 11, reprinted in 24 ILM (1985) 794; or rhe Australian Foreign Proceedings (Excess of Jurisdiction) Act 1984, No. 3 of 1984, reprinted in 23 ILM (1984) 1038. A jurisdictional dispute arose between France and the US over whether a French company had to comply with US export control lcgislarion against China: Fruehauf u. Marsnrdy (1964-65), [I9681 D.S.Jur. 147, [I9651 J.C.P. I1 14274 bis, [I9651 Gaz. Pal. See Andreas Lowenfeld, T r d c Controkfir Political Ends (2nd ed., 1984) 90. ll6 See A. Vaughan Lowe, 'The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution', 34 ICLQ (1985) 724. The ECJ was initially reluctant to affirm extraterritorial jurisdiction. In the Wood Pulp case, the Court basically relied on a rerritorial principle finding that anti-competitive agreements entered inro abroad were in fact 'implemented. . . w~thinthe common market'. See AhLrrom Osakcyhtio a. Commission, omed Cases 89. 104, 114. 116-117. 2nd 125-129185. [I9881 ECR 5193. ' ' I n See lC1 r Commirion. Case 48/69, [I%'?] ECR 619. ,1972, CMLR 157 and the so-called Wood Pulp cases, supra note 117. See also P.[. Kuvper. 'European Community Law and Extraterritorialiiy: Some Trends and New Developments'. 33 ICLQ (1984) 1016. 'I1 112
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interest.'" In order to avoid conflicting jurisdictions, and based on the Westphalian and post-Westphalian concept of the territorial nation state, a state's territory was traditionally regarded as the basic unit for jurisdiction. Any extension of territorial jurisdiction had to be justified by other jurisdictional links, such as the personality principle or the effects doctrine or, in the field of criminal law, the protective as well as the universality principles. Jurisdictional conflicts were traditionally solved by recourse to these more or less technical principles without having regard to the content of the extraterritorial 1e~is1ation.l~~
4. Can Shared Intematzonal Interests Jwtifj Ektraterrztoriality? With the current 'new wave' of extraterritoriality, it is no longer purely national policy interests that are pursued by extending the borders of national jurisdiction. Rather, states are using their extraterritorial jurisdiction in order to enforce not (only) their own policy goals, but also international ones. Of course, one has to be very careful in assessing whether states truly enforce international law or whether they use this as a pretext to pursue their own national policies.'21 If we can take it as a valid assumption-at least for the sake of the argument-that states are increasingly using their extraterritorial jurisdiction in order to enforce human rights concerns, they could be seen as utilizing their national legal system to enforce international law. From this perspective, extraterritorial human rights litigation can be viewed as a form of decentralized enforcement of international law. This would, of course, also mean that the issue is no longer a clash between effective (extraterritorial) national policy enforcement versus neutral international law principles of jurisdiction, but rather a clash of substantive international law principles, i.e. human rights, with formal international law principles, i.e. territorial jurisdiction. Under these changed parameters, there is a possibility that 'substance' might override 'form'. Thus, there are new chances for extraterritoriality since affected states will have a hard time justifying their disregard of human rights in rejecting the extraterritorial acts of others. While international law only provided a value-neutral framework within which states were free to adopt and pursue their own policy through legislation, each state could easily defend its own sovereign right to determine its own policies and thus to legislate and remain unaffected by the legislation of other states. The growing convergence of policies, or at least the increasing substantive determination of national policy choices through international law, for
"'
'There is no more important way to avoid conflict than by providing clear norms as to which state can exercise authoriry over whom, and in what circumstances. Without that allocation of competences, all is rancour and chaos': Higgins, supra note 6 , 56. Except insofar as international law might provide recourse to a particular type of jurisdictional link, e.g. competition rules-effects doctrine; counterfeiting money-protective principle, etc. See also Shaw, supra note 56, 458. I21 See the Helms-Burton debate where the US inrenrion to portray its action as decentralized enforcement of the human right to property was contested by other states, infia text at note 132.
Non-State Actors and International Law The Changing International Legal Framework
our purposes the increasing pressure to fulfil human rights obligations by enacting implementing legislation, has weakened the shield of national sovereignty and territorial jurisdiction. The traditional approach of international law to allocate jurisdiction between the -traditional subjects oF international law, the states, was fairly straightforwardnowadays one would probably say 'user-friendly'-based on territoriality and nationality: states have jurisdiction over persons and things located within their territory and, to some extent, over persons and things, such as ships and aircraft, outside their territories if there is a special ('genuine') link to them such as citizenship or the like. Only very reluctantly, international law has recognized additional justifications for the exercise of extraterritorial jurisdiction. The objective territoriality principle or effects doctrine, according to which any conduct that has, for instance, a 'direct, substantial and reasonably foreseeable effect'12' on a state's territory may be subject to that state's extraterritorial jurisdiction, is one example, by now largely accepted in the context of anti-trust/competition law. Whether it could be developed into a more general principle according to which any 'substantial or effective connection' with a state would give that state a legitimate basis for extraterritorial jurisdiction remains to be seen.Iz3 As already indicated, it is worth considering whether, in addition to these 'formal' jurisdictional principles, issues of substance, of the content of legislation, may have an impact on the legality of the exercise of extraterritorial jurisdiction. In this regard, it is useful to look to other fields of extraterritorial jurisdiction, such as humanitarian law and other forms of international criminal law providing for universal jurisdiction of contracting parties over very serious crimes. The Geneva Conventions give all Contracting States the right-some argue even the obligation-to prosecute war crimes committed by anyone, anywhere, without the need for any territorial or personal link to the crimes.12* The traditional connecting factor is no longer required, but is replaced by the shared interests of the international community in 122 See e.g. 1982 Foreign Antitrust Improvements Act. Public Law 97-290, Title IV, Section 402; 96 Stat. 1246: 15 USC Section 6a. See K.M. Meessen (ed), Exnaterritorial Jrrrisdiction in Theory and Practice (1994); Werner Meng, Exnnterritoriah Jurisdiktion im ofintlichrn Wimchafirccht (1994). According to Arts 49 ttsrq. Convention (I) for rhe Amelioration of the Condition of the Wounded and Sidc in Armed Forces in the Field. Geneva, 12 August 1949.75 UNTS 31; Arts 50 et seq. Convention (11) for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. 75 UNTS 85; Arts 129 rr seq. Convention (111) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949,75 UNTS 135; Arts 146 etseq. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, 75 UNTS 287, the Contracting Parties are under a special dury to prosecute and try persons alleged to have committed 'grave breaches' regardless of their nationality and regardless of the place where such 'grave breaches' occurred (principle of universality) or at least to extradite such persons. See Antonio Cassese. 'On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law', 9 EJIL (1998) 2 at 5; Michael P. Scharf, 'Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Parry States', 35 New EnghndLzw Reviw (2001) 363.
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August Reinisch
preventing certain. acts. The history of legal steps against bribery and corruption in general also provides an interesting lesson with regard to the gradual acceptance of extraterritoriality. The initial unilateral approach of the US in passing the 1977 Foreign Corrupt Practices ~ c t met ' ~with ~ considerable disfavour and was rejected by some countries 'affected' by the extraterritorial application of this legislation.'2G The 1997 OECD Anti-Corruption onv vent ion'^^ broadly prohibits bribery both at home and abroad and permits the use of extraterritorial legislation. This has largely eliminated the controversy.'28 Parties to the OECD Convention would hardly be in a convincing position to complain about extraterritorial anti-corruption enforcement by other states if that action were prompted by their own inactivity contrary to their obligations under the convention. At this point one could draw a parallel with the extraterritorial 'prosecution' of human rights violations as exemplified by current human rights litigation before US and other mostly common law jurisdictions. Whether they use traditional criminal law instruments or civil liability there is also a shared interest in preventing human rights infringements, not only by states but also by non-state actors. The prime instrument of national legislation is the incrimination of certain acts leading to criminal or civil responsibiliry regardless of whether they were committed within or outside the territory of the forum state. If the territorial state is bound by international agreements to ensure human rights, any opposition to extraterritorial enforcement would be hard to justify. In such a case the territorial state would be obliged to take action itself. If it refused to do so and coupled this refusal with a rejection of action by other states to enforce the same treaty rights extraterritorially, this non-co-operation could be qualified as an act of bad faith. The common rationale would be that the defence of shared substantive interests, protecting human rights, gives additional weight to the exercise of extraterritorial jurisdiction.12' Of course, behind such a model always lurks the danger of a unilateral assessment of what are human rights, which types of human rights deserve extraterritorial protection, etc. This, in turn, is related to the question who determines substance. The Helms-Burton controversy may serve as a useful illustration of the problem. This 1996 US legislation130provides, inter alia,for a cause of action before US courts against investors from anywhere in the world who happen to invest in property in Cuba formerly belonging to persons expropriated by the Castro 15 U.S.C. § 78dd, http:/lwww.usdoj.govlcriminallfraudlfcpa/fcp~tat.htm. See P.M. Nichols, 'Regulating Transnational Bribery in Times of Globalization and Fragmentation', 24 Yalcjournalof Intcmtional Law (1999) 257. I27 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, adopted 21 November 1997, entered into force 15 February 1999. http://www.imf.org/ rxternal/np/gov/200l/eng/09 1801 .pdf. 128 Ir has also eliminated the competitive disadvantage for American companies uis-2-uir others which 1 .?V were 'lawfully' bribing abroad. See McCorquodale, supra note 85, at 101. "O Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996. Public Law 104-1 14, H.R. 927; reprinted in 35 ILM (1996) 357-78. Iz5
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regime.13' Among many other issues, one of the problems concerned the weight of the US claim that this legislation was in essence a measure permitting human rights enforcement by US courts.132For the US, the protection of private property against unlawful expropriation constitutes a general international law standard which they felt e n t i t l e d to e n f o r c e e v e n against ' a ~ c o r n ~ l k e s ' ,t 'h~o ~s e who 'traH;ck' i n former US property by purchasing land from the Cuban government today, in the governmental human rights violation, the discriminatory and uncompensated expropriation of American property in the 1960s. For the Europeans and many other affected countries, the Helms-Burton Act amounted to an impermissible extension of American values by prohibiting non-American companies from investing in ~ u b a . Leaving ' ~ ~ many other technical aspects aside, one of the central issues in the Helms-Burton controversy was whether the right to property belongs to a core of customary international law principles which merit not only universal respect but also enforcement even by other states. It is obvious that the national interest and perspective of legislators and courts will play a great role in this issue. The same is true for litigation under the ATCA (which in a way served as a model for the Helms-Burton Act) where a national interpretation of what is to be considered international human rights law may depart from the communis opinio scholarum, the general opinion of international lawyers. This problem is related to the larger issue of the universality debate of human rights, to the question of which human rights call for universal respect and which may be regionally divergent. As with the question of universal human rights, so also in the context of Helms-Burton: hypocrisy appears to be the true problem. The entire issue of extraterritorial human rights enforcement also displays interesting parallels to the debate currently taking place within the WTO with regard to the controversial insertion of a 'social clause' into the W O legal order.135 13'
See Clagetr, 'Title 111 of the Helms-Button Act Is Consistent with International Law', 90
AJIL (1996), 435; Vaughan Lowe, 'US Extraterritorial Jurisdiction: Thc Helms-Burton and D'Amato Acts', 46 ICLQ (1997), 378; Andreas Lowenfeld, 'Congress and Cuba: The Helms-Burton Act', 90 AJIL (19961, 419-35; Brigitte Stern, 'Ven la mondialisation juridique? Lcs lois Helms-Burton et D'Amato-Kennedy', 100 Rcvur Glniralt dr Droit Intonational Public (1996) 979. 13' See August Rcinisch, 'Widening thc US Embargo Agamst Cuba Extraterritorially. A few public
international law comments on the "Cuban Libcrry and Democratic Solidarity (LIBERTAD) Act of 1996" ', 7 EJIL (1996). 545-62. '33 In relation to the concept of compliciry in human rights violations see Celia Wells, 'Catching the Conscience of the King: Corporate Players on the International Stage', infia Chapter 5. See European Union: DCmarches Protesting the Cuban Liberty and Democratic Solidarity Act, reprinted in 35 ILM (1996) 397; Inter-American Juridical Committee, Opinion of 23 August 1996, CJII SOIIIldoc.67196 rev 5; adopted by CJIlRES.11-14/96; reprinted in 35 ILM (1996) 1322. See Christopher McCrudden and Anne Davies, 'A Perspective on Trade and Labour Rights', in Francesco Francioni (4, Envzronmcnt, Htrman Rzghts and Intonatzonal Trade (200 1). 179; Friedl Weiss, 'Internationally Recognised Labour Standards and Trade', in Friedl Weiss, Erik Denters, and Paul dc Waart (eds), International Economzc Law with a Human Face (1998). 79; Erika de Wet. 'Labor Standards in the Globalized Economy: The Inclusion of a Social Clause in thc General Agrecmcnt O n Tariff and
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August Reinisch
4. COMMON FEATURES At this point, let me try to draw a few preliminary conclusions relating to the broader picture of the changing legal framework set out above. The common features I present in the following part are not an exhaustive description. Rather, they serve to illustrate and partly to explain some of the new approaches to non-state actors and human rights. A. New Positions and New Alliances of Non-State Actors Under traditional human rights law, the roles were clearly distributed among the main players. NGOs and international organizations were keeping an eye on the human rights performance of states and increasingly also of T N c s . ' ~ International ~ organizations and NGOs were the 'good guys' and it was their role to advocate and promote human rights, to campaign for human rights observance, and to supervise compliance and find violations. The 'bad guys', powerful states or even less powerful ones which in relation to individuals always had a threatening potential of power, were the primary targets of human rights scrutiny. These roles have been partially reversed today: international organizations are now increasingly questioned about their human rights' performance. A prime example lies in the EUIEC, where a human rights case-law has been developed by the European Court of ~ustice,'~'but other international organizations, such as the UN with regard to its activities (or rather failure to act) in situations like TradelWorld Trade Organization', 17 Human Rights Quarterly (1995) 443. See also discussion in Steinhardt, supra note 2 at (35-371. 136 See Felice D. Gaer, 'Reality Check: Human Rights NGOs Confront Governments at the UN', in Thomas G. Weiss and Leon Gordenker (&), NGOs, the UNand GIobal Governance (1996) 51; Margaret E. Kcck and Kathryn Sikkink, Actiuists beyond Borders: Advocacy Networks in International Politics (1998); Dianne Orto, 'Nongovernmental Organizations in the United Nations System: The Emerging Role of International Civil Society', 18 Human Rights Quarterly (1996) 107; Peter Willets (ed), The Conscience of the World, The Influence of Non-Gourmmmtal Orgnnizatiom in the U.N. System (1996). In its 1998 annual report, Amnesty International criticized not only individual governments and militant groups for human rights violations, but also businesses and international financial institutions, including Royal Dutch Shell, the World Bank, the International Monetary Fund, and the World Trade Organizatiori. The report is available at http:llamnestyusa.org/~:r~pt~lexit.cgi?m.amnesty.org/ailibl index.html. See also the mission statement of 'CorpWatch. Holding Corporations Accountable': 'CorpWatch counters corporate-led globalizauon through education and activism. We work to foster democratic control over corporations by building grassroots globalization-a diverse movement for human rights, labor rights and environmental justice.' And see its report on the Nike lawsuit, available at http:// www.corpwatch.org/trac/nikellawsuit.html. Similarly, Human Rights Watch has gone beyond criticizing only states. In a 1999 report it was highly critical of Enron's activities in the course of a controversial electricity project in India where local opposition was harshly repressed. See Human Rights Watch, The Enron Corporation: Corporate Compliciry in Human Rights Violations (1999), available at htrp:// www.hrw.orglreportsll9991enron. 1.37 See i n f a note 236.
Non-State Actors and International Law The Changing International Legal Framework ~ r e b r e n i c a 'or ~ ~with regard to its economic sanctions policy,'39are becoming the subject of scrutiny by NGOs, affected states, and the public. A similar development can be witnessed in the context of international financial institutions: the IBRD and the IMF are questioned increasingly about the human rights compatibility of their development policies, in particular, in their lending practices.140 NGO accountability is another new topic: their activities are subject to intensified scrutiny, and they are attacked for their lack of democratic structures and transparency. In some instances they are wen accused of acting contrary to human rights.141 In addition, the human rights implications of T N C activities have received renewed attention. TNCs as potential perpetrators of human rights violations have become the focus of much recent human rights discourse. But this is not the only aspect of human rights and TNCs. There is also the positive story about TNCs and human rights: TNCs may induce change and contribute to an enhanced human rights environment in the states where they operate.142 On che macro level, the foreign investment they contribute to a national economy may raise living standards and create better social and economic conditions in the host countries. On the micro level, TNCs may act as promoters, serving as role models in adopting human rights (labour rights) standards This involved the Fdilure of UN peace-keeping forces to protect civilians in the UN-declared 'safe areas' of former Yugoslavia, particularly, in and around Srebrenica where a massacre was carried out by Serb forces o n Muslim civilians in summer 1995. The widespread criticism and allcgations of responsibility prompted the General Assembly to commission an investigation which resulted in the Secretary-General's report on Srebrenica, supra note 80, which acknowledged that 'There is an issue of responsibility, and we in the United Nations share in that responsibility, as the assessment at the end of this report records': ibid., para. 5. 13' See Hans-Peter Gasser, 'Collective Economic Sanctions and International Humanitarian Law: An Enforcement Mcasure Under the United Nations Charter and the Right of Civilians to Immunity: An Unavoidable Clash of Policy Goals?', 56 Zeitschriftfir ausliindischcs offcntlichcs Recht und Vdkewccht (1996) 871; August Reinisch, 'Developing a Human Rights and Humanitarian Law Accountability of the UN Security Council for the Imposition of Economic Sanctions', 95 AJIL (2001), 851; W. Michael Reisman and Douglas L. Stevick,'The Applicability of International Law Standards to Unitcd Nations Economic Sanctions Programmes', 9 EJIL (1998) 86. I4O See Franqois Gianviti, 'Economic. Social, and Cultural Human Rights and the International Monetary Fund', Chapter 4 infia; and Philip Alston, 'Can the International Human Rights Regime Accommodate Non-State Actors', Chapter 1, supra. Sec also Patricia Armscrong, 'Human Rights and Multilateral Development Banks: Governance Concerns in Decision Making', 88 Amm'can Society of lnt'l Law Pmc. (1994) 271; Daniel D. Bradlow, 'The World Bank, the IMF,and Human Rights', G Tramnat'l Law and Contemp. Problcmc (1996) 47; Sabine Schlemmer-Schulte, 'The World Bank and Human Rights'. 4 Amman Review of lntemational and European Law (1999) 230; Sigrun Skogly, The Human Rigbts Obligations of the World Bank and the International Monetary Fund (2001). 14' Michael EdwardsIDavid Hulmc (cds), Non-Governmcn~al Organizations-Pc@nnancc and Arcountabiliy in the Port-Cold War World: Btyond the Magic Bullet (1995); Ian Smillie, The Alms Bamar: Almrism Under Fire-Non-Profi Organzzatiom and International Drvelopmrnt (1995). See Deborah Spar, 'The Spotlight and the Bottom Line: How Multinationals Export Human Rights', 77 Foreign Affairs (1998) 7 ; Jennifer Johnson, 'Public-Private Convergence: How The Private Actor Can Shape Public International Labor Standards', 24 Brook. j. Int'l L. (1999) 291: W.H. Meyer, 'Human Rights and MNCs: Theory versus Quantitarivc Analysis'. 18 Human Rights Quart?+ ( 1996) 368.
'*'
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that should be copied by other firms. This concept of the alternative role of TNCs is a clear reversal of the 'stay out' policy advocated after heavy criticism of the involvement of some TNCs in the domestic affairs. of host states, such as ITT in the overthrow of the Allende regime in Chile in 1973 and Elf Aquitaine's role in the ousting of the Congo-Brazzaville government in 1997.143 These changes, among others, witness that the roles have been, at least partly, reversed. There is a greater number of potential human rights violators, but there are also more potential human rights promoters and defenders and they may enter into new alliances with each other. Traditionally, international organizations could count on the support of NGOs in advocating human rights, in exposing state practices in violation of human rights, etc. Today, NGOs sometimes antagonize international organizations by severely criticizing the latter.I4 On the other hand, TNCs are trying to get NGOs on'board in their human rights code of conduct campaigns to enhance their own standing; they have realized that 'human rights are good business'.145 They are relying, inter alia, on NGO and other independent professional expertise for 'social accounting'.'4G Furthermore, international organizations partly try to co-opt NGOs. In particular, the International Financial Institutions (IFIs) such as the IMF, the World Bank Group, and regional development banks, as well as the WTO, have learned their lessons from Seattle and Genoa by creating NGO links.14' The UN has tried to get NGOs 'on board' by changing the system of NGO consultative status,'48 by using their aid delivery services through UN subcontracting,14' etc. 143 See Menno T. Kamminga, 'Holding Multinational Corporations Accountable for Human Rights Abuses: A Challenge for the EC', in Philip Alston (ed), The EUand Human Rightr (1999),553,at 554. 144 See the N G O criticism of the IMF and IBRD as well as the EU by 'statewatch' (http:ll www.statewatch.org~and of the UN by 'unwatch' (hnp:llwww.unwatch.orgl). 145 Cf. Kinky, supra note 53,26. 146 Social Accountabiliy 8000, for instance, is a monitoring and certification standard mainly for labour standards at factories. Modelled on the auditing process developed by the International Standards Organization. such as I S 0 9000 and I S 0 14000,it relies on certified monitors to verify compliance. SA 8000 was first issued in 1998 and revised in 2001. See http:llwww.cepaa.org/SA8000/SA8000/htm. '41 See W T O Guidelines for Arrangements on Relations with Non-Governmental Organizations, WTO, WT/L/162,23 July 1996. See also Steve Charnovia, 'Participation of Nongovernmental Organizations in the World Trade Organization', 17 LI. Pcnn. ]. Int'l Econ. L. (1996)331; Daniel C.Esty, 'Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion', 1 ]. Int? Econ. L. (1998) 123;Wolfgang Benedek, 'Developing the Constitutional Order of the WTO: The Role of NGOs', in Drvrlopmcnt and Dewloping Intrrnational and European Law: Essays in Honour of Konrad Ginther on the Occasion of his 65th Birthday (1999)228;Ibrahim F.I.Shihata, 'The World Bank and Non-Governmental Organizations', 25 Comcil Int'l L.J. (1992)623. 14' According to Art 71 UN Charter, the U N 'Economic and Social Council may make suitable arrangements for consultation with NGOs which are concerned with matters within the [Council's] competence'. Based on this Charter authorization, ECOSOC adopted R a . 288 B 6) (27February 1950), Res. 1296 (XLIV) (23May 1968),and Res. 1996131 (25July 1996),layingdown the specific requirements for N G O accreditation. See http://www.un.org/documents/ccosoclres/l996/eresl99~3l.htm. '41 See Leon Gordenker and Thomas G. Weiss, 'Devolving Responsibilities: A Framework for Analysing NGOs and Services', in Thomas G. Weiss (ed), Beyond UNSubcontracting: Task-Sharing with Regional Security Arrangnnmtr and Service-Provding NGOs (1998)30.
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The reversal of roles is also nicely encapsulated in the classical 'Who guards the guardians?'.'50 After the recent Enron disaster this could be rephrased into a more current 'who accounts for the accountants?' In any event, accountability is no longer a one-way exercise. Rather, it has become a multi-faceted issue. B. Indirect Human Rights Enforcement-'Going
After the Accomplices'
O n a fairly general and abstract level another common attribute may be identified from recent trends in dealing with the human rights performance of non-state actors: a growing tendency to turn against 'accomplices' in case the main perpetrators cannot be held accountable. The underlying rationale and message of the (legal) accountability of companies complicit in direct human rights violations is clear: ultimately, TNCs will be deterred from investing in countries where they might be held responsible for acts of that state. More and more frequently, legal devices are chosen to induce compliance via indirect sanctioning. The combination of extraterritoriality and vicarious liability has produced some remarkable examples, based on the philosophy: 'if you can't get the direct perpetrators, put pressure on those who collaborate with them or profit from their acts'. Examples are the Unocal litigation where direct action against Myanmar (Burma), the alleged direct human rights violator, appears unfeasible because, on the traditional inter-state plane, there is not sufficient leverage and because state immunity would prevent a direct claim against Myanmar in US courts.15' Even if jurisdiction were upheld by national courts, the chances of enforcing an eventual judgement would be very low. Thus, it makes sense to seek redress against corporate accomplices to state action. Corporate complicity is, of course, a very complex issue and it is useful to differentiate between various degrees of involvement and 'culpability' of corporate b e h a v i 0 ~ r . lThere ~ ~ is an obvious distinction between a company investing or otherwise doing business in a country with a questionable human rights record and actively supporting forced population transfers or using slave labour provided by government units. It has thus been suggested that different categories of 'complicity' be applied, such as actively assisting in human rights violations by others, benefiting from the opportunities created by human rights violations, or silence and inactivity in the face of human rights violation^.'^^ 'I0 'Quis C~utodict410s CustodCSI ('But who guards the guardians?'), Decimus Jz~niusjuv~nd, Satires VI, 347. See also Ralph Wilde, 'Quis Custodiet Ipsos Custodes? Why and How UNHCR Governance of "Development" Refugee Camps Should be Subject to International Human Rights Law', 1 Yalr H.R. & Drv. L.]. (1998) 107. 'I' In Doe v. CJnocal C o p 963 F. Supp. 880 (C.D. Cal. 1997) the claim againsr the State Law and Order Restoration Council of Myanmar and the Myanmar Oil and Gas Enterprise was dismissed for state immunity reasons. '51 See Steven R. Ratner, 'Corporations and Human Rights: A Theory of Legal Responsibiliry', 111 Yale Law Joumal (2001) 443. at 497. See also Cclia Wells, rupra note 133. '53 See International Council on Human Rights (ed.) Beyond Voluntarrsm: Human Rights imd t h e Dcueloping Inrcmational Legal Obligations of Companies (2002) 126. See also Human Rights Watch,
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August Reinisch Some aspects of the Holocaust litigation before US courts follow this pattern. The
Princz case is a pertinent example: an action for slave labour against the Federal
Republic of Germany failed before US federal courts because of the immunity of the defendant.15* Subsequent cases were instituted against companies which profited from slave labour either in a direct way, such as industrial firms,'55 or in a less direct way, such as banks and insurance companies.'56 In all these cases it is clear that the primary target of the US litigation is the atrocious policy of forced and slave labour organized by the Third Reich. The corporate defendants did not plan or institute this exploitative programme, but some may have willingly benefited from it. And because the &ect perpetrator is unavailable as a defendant, the indirect 'beneficiaries' which may be subject to the jurisdiction of US courts today are named as defendants now. The above examples all relate to US civil actions based on a concept of corporate liability for complicity in human rights violations perpetrated by governments. This appears to be by far the most likely situation when one is confronted with corporate human rights violations, although it may also happen that TNCs themselves engage in human rights violations. The precise legal standards for civil liability for such corporate complicity in human rights violations is, however, as unexplored as standards for their criminal r e ~ ~ o n s i b i l i t ySome . ' ~ ~ tentative guidelines can be found in some of the codes of conduct mentioned above, although they are usually not helpful to the search for precise standards. The UN Global Compact, for instance, demands that businesses 'make sure they are not complicit in human rights abuses'.15' The Commentary to the Norms on the Responsibilities for Transnational Corporations and Other Business Enterprises with Regard to Human Rights provides that '[t] ransnational corporations and other business enterprises shall have The Enron Corporation: Corporate Complicity in Human Rights Violations (1999), available at http:// www.hnv.orglrcportsl1999lcnron. Prinn v. Federal Rcpublir of G m n y , 813 F . Supp. 22 (1992). 26 F.3d 1166, 1180 (D.C. Cir. 1994). See e.g. Iwanowa v. Ford Motor Co, No. 98-CV-959, 1999 WL 719888 (D.N.J. 14 September 1999); Gross v. Volkswagcn, No. 98-CV-4104 (D.N.J. filed 31 August 1998). See also the list of known World War I1 and National Socialist era cases against German companies pending in U.S. courts, at
"'
http:llwww.sufcung-en.de/doku/~uftunginitiative/statemen~englis~ann~c.html. See among others the complaints filed in US federal courts Duvcen v. Drutsche Bank AG, No. 99CV-0388 (S.D.N.Y. filed 19 January 1999); W a h a n v. Dcu~schcBank, No. 98-CV-3938 (S.D.N.Y. filed 3 June 1998); Bodner v. Banque Paribas, No. 97 Civ. 7433 (E.D.N.Y. filed 20 March 1998).
'"
'51 Cf. Andrew Clapham and Scott Jerbi, 'Categories of Corporate Complicity in Human Rights Abuses'. 24 Hastings Int'f 8. Comp. L. Rev. (2001) 339. who suggest a differentiation between direct corporate complicity, requiring intentional participation; beneficial or indirect corporate complicity, merely requiring knowledge of human rights violations from which companies will benefit; and silent complicity, where companies may be faulted for not acting or speaking out against systematic human rights abuses of host states. See also Celia Wells, 'Corporate Criminal Liability in Europe and Beyond', 39 New South W a h Law Soney Journal (2001) 62. 158 UN Global Compact, rupra note 43; see Steinhardt, supra note 2 at 206.
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the responsibility to use due diligence in ensuring that their activities do not contribute directly or indirectly to human rights abuses, and that- they do not directly or indirectly benefit from abuses of which they were aware or ought to have been aware'.159 Similar demands are formulated in a number of voluntary human
rights codes of conduct and they are also expressed in the guidelines of ethical investments erc. This shows that, although no clear rules have yet crystallized with regard to this form of indirect human rights enforcement, the idea of putting (even just economic) pressure on non-state actors to improve human rights situations has gained broad support. The idea of holding accountable those who are' subject to accountability mechanisms even if they are only indirectly responsible for human rights infringements has also received renewed attention in the context of the European system of human rights protection. It lies at the heart of a new trend in the case-law of the European Court of Human Rights, marked by the Gibraltar voting case,lGOholding states accountable for human rights violations of international organizations of which they are members. One could even draw an (admittedly rather far-fetched) parallel to recent US action against states harbouring terrorists. Although the roles are reversed here, it follows a similar patcern insofar as the US tries to hold governments accountable not for directly perpetrating terrorist acts or directly engaging in state-sponsored terrorism, but rather for aiding, supporting, not preventing, and not co-operating in the fight against, terrori~m.'~' This latter example may be evidence of a general theme of a changed international environment willing to enforce human rights, whether directly or not, against accomplices. It is, in any event, probably more than just the result of a growing frustration over the ineffectiveness of human rights protection against states.
C. Increasing Use of Non-Legal Means of Enforcing Human Rights Compliance of Non-State Actors Recent developments with regard to TNCs and human rights may teach another interesting lesson. Legal enforcement techniques, holding human rights '51 Sub-Commission on thc Promotion and Protection of Human Rights, Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Commentary (b) to Sec. 1. Regard to Human Rights, E/CN.4/Sub.2/2003/38/RevV2, ''O See znfirr note 219. 161 This logic was first relied upon by the US against Sudan and Afghanistan. See Jules Lobel, 'The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan', 24 YalcJ Inrl L. (1999) 537; Ruth Wcdgwood, 'Responding to Terrorism: The Strikes Against bin Laden', 24 Yale J. Inr'l L. (1999) 559. For post-l l September 1001 action see Antonlo Cassese, 'Terrorism is also Disrupting Some Crucial Legal Categories of lntcrnarional Law', 12 EJII. (2001) 993; Jost Delbriick, 'The Fight Against Terrorism: Self-Defense or Collective Secutity as International Police Action? Some Comments on rhc International Legal Implications of the "War Against Terrorism"'. 44 Gcnnan Yearbook inrernamo~rnlLaw (200 1 ) 9.
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violators legally accountable before international or national tribunals, may become less central as a mechanism to protect human rights effectively. More 'non-legal' enforcement techniques are used to induce human rights compliance. Consumer boycotts are now almost a classical 'non-legal' enforcement technique to induce human rights compliance by T N C S . ' ~The ~ threat of lost sales of products produced in an environmentally harmful way, by disregarding core labour standards, or otherwise having negative human rights implications has proven to be a highly effective deterrent against such activities. This effectiveness is, in turn, predicated and depends upon a growing awareness and sensitivity of consumers. The goodwill, reputation, and publicity attaching to a company's human rights performance has become an important intangible business asset which is vigilantly guarded. The non-legal enforcement mechanisms are not exhausted with the 'stick' of consumer boycotts. 'Socially responsible investing' has developed from an initial policy of excluding investments in certain sectors (such as arms production, genetically modified organisms, tobacco, etc.) into a positive pro-investment choice concerning businesses that conform to certain standard^.'^^ One of the reasons for this development may be the simple legal impossibility of using the 'normal' human rights enforcement mechanism of human rights scrutiny by international human rights monitoring bodies, courts, and tribunals. Non-state actors are not subject to the relevant human rights protection systems under various universal and regional human rights conventions. This is as true for TNCs as it is for international organizations and ~ ~ 0 sHowever, . ' ~ ~ may be it is less the non-availability of legal means than their non-effectiveness, or at least their lesser degree of effectiveness, which has induced the turn towards nonlegal means of enforcemenr. The far more compelling force of the non-legal mechanisms mentioned above-consumer boycotts and ethical investment strategies--can be directly translated into costs and gains for companies. This economic argument has not fallen on deaf ears on the part of some non-state actors, parricularly TNCs.
16' An early well known consumer boycott arose from the controversy about the marketing of infant formula in developing countries. See Nancy E. Zelman, 'The NestlC Infant Formula Controversy: Restricting the Marketing Practice of Multinational Corporations in the Third World', 3 Transnat'l L. (1 990) 697. A list of currently enforced boycotts is available at http://www.ethicalconsumer.org/boycotts/ boycotts-list.htm. See also Kenneth A. Rodman, '"Think Globally, Punish Locally": Nonstate Actors, Multinational Corporations, and Human Rights Sanctions', 12 Ethics & Intnnational Affahirs (1998) 19. See further Steinhardt, supra note 2 at 185-6. See www.neweconomics.org as well as www.socialinvcst.org. See also the Sustainable Investment Research International Group (SIRI) a coalition of 12 research organizations aiming to provide and promote high quality social investment rcscarch products and services: http://www.sirigroup.org. See generally Steinhardt. supra note 2 at 181 and 184 for a discussion of 'rights sensitive' products and socially responsible invesunent. '64 See, however, inj?a text starting at note 225, for the potential of future development.
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D. Enforcing H u m a n Rights Compliance of Non-State Actors Regardless of Whether they are Strictly Bound by Human Rights Obligations Another common feature of recent developments in the field of non-state actors and human rights seems to be the decreasing relevance of the legal quality of t h e s r a n d a r d s i n v o k e d . A p p a r e n t l y , i t is b e c o m i n g less a n d less i m p o r t a n t w h e t h e r
the human rights standards sought to be enforced are legally binding or not. Regardless of whether a strict obligation to respect human rights exists de lege kzta, many of the current 'enforcement' measures are used in order to induce compliance. This is true not only of the 'non-legal' means of consumer boycotts uis-2-uis TNCs and 'socially responsible' investments, but it also applies to the recent surge of suing TNCs before national courts as long as they are 'doing business' within the forum state. 165 Of course, consumers and investors are free to choose where to buy or to invest. They may rely on moral or ethical choices when making their business decisions. If it comes, however, to holding business entities civilly liable (as in many of the ATCA actions before US courts) the question of legal responsibility arises. This clearly presupposes that obligations legally binding on TNCs have been breached. Findings of liability in the absence of a legal obligation would be irreconcilable with hndamental notions of the rule of law. One need not even invoke the nulkzpoenu sine lege analogy of criminal law.'66 There is another risk involved in the increasing demand for accountability regardless of whether those held accountable are legally bound by certain standards. It creates a danger of blurring the line berween legal obligations and de legeferenah standards which might ultimately backfire by weakening the obligatory character of human rights law. lG7
E. The Issue of Non-State Subjects of International Law: A Fresh Start or a Cul de Sac? The question of personality or subjectiviry under international law has fascinated generations of international lawyers and it has remained a precarious and complicated one.lG8It also arises in the context of non-state actors and human rights. The precise question is whether non-state actors are more than just indirect addressees of human rights norms which are directly addressed to states. We have seen that, at I"
According to many US 'long arm' statutes, foreign defendants may be subject to the jurisdiction of
US courts if they are considered to be 'doing business' within the US. See Restatcmrnt (Third), supra note 615(1) 1st Sentence ICCPR, supra note 11. 110, 5 421.
"'See also U N Sub-Commission
'"
on the Promotion and Protection of Human Rights, SessionaJ working group on the working methods and activities of transnational corporations, Transnational Corporations and Other Business Enterprises, E/CN.4/Sub.2/2002/WG.2NlrpNlrp1/Add. 1, 24 May 2002, 17, noting the concerns expressed that 'that universal principles [for transnational corporations] will only dilute Jready established more specific standards focused on particular issues facing an industry, a transnarional corporation, or other business enterprise'. I6"haw, supra note 56, at 137 et rey.
444
Non-State Actors and International Law August Reinisch least prima facie, non-state actors are increasingly the direct addressees of human rights standards. Numerous voluntary codes of conduct clearly formulate direct obligations for companies. Does that mean that they have become, at least partially, subjects of international law? T o some extent this discussion relates back to the Drittwirkungs debate of past decades.IG9 However, one should clearly recognize that in German doctrine and jurisprudence, where the theory of 'third-party effect' was most intensely debated, Drittwirkung really dealt with the private law repercussions of fundamental rights norms, with the effect on the legal relationship between private parties. It did not elevate private, non-state actors to the level of direct addressees of constitutional rights and obligations. In a traditional international law understanding, only subjects of international law can be addressees of international obligations. If one narrowly defines subjects of international law as comprising states, international organizations, as creatures of states, and a few historic subjects of international law, such as the Holy See and the ' non-state actors relevant for our purposes would Sovereign Order of ~ a l t a , ' ~most be excluded from the outset. However, if one follows a more 'liberal' delimitation of subjects of international law, for instance, one that would hold that an entity can be considered a subject of the international legal system if it has rights andlor obligations under that system, then a closer examination of the relevant human rights standards appears to be necessary in order to find out which non-state actors may qualify. The underlying rationale of considering certain non-state actors as subjects of international law is usually that international law directly endows them with certain rights and obligations. For instance, the ICRC enjoys partial international legal personality because the Geneva Conventions directly confer certain (international law) rights on it;17' individuals are considered to be, at least partly, subjects of international law because they enjoy human rights directly as a result of international law and because they are directly obliged by international law not to commit certain internationally criminal acts such a genocide, crimes against humanity, and war crimes.'72 In all these cases the international legal order wants to confer a certain status upon non-state actors by directly giving them rights and/or obligations. If the international legal personality of non-state actors really depends upon international law then it seems appropriate to take a closer look at the meaning of international law in order to find out whether non-state actors really are direct addressees of human rights obligations. Today, there is renewed interest in the question whether there are real direct legal obligations for non-state actors contained in international human rights '15' See A. Drzemnewski. 'The European Human Rights Convention and Relations between Private Parties', 26 NILR (1979) 163; Andrew Clapham, 'The Drimuirkung of the Convention', in R.St.J. MacDonald ct al. (eds). The European Systm fir the Protection of'Human Righn (1998) 21; M. Hunt, 'The Horizontal Effect of the Human Rights Act', Public LUW (1998) 423; Ingo von Munch rt al., srrpra note 8 . Shaw, rupra nore 56, at 171. Ibid., at 192. Ibid., at 182.
"'
Non-State Actors and International Law The Changing International Legal Framework instruments. In this context one point of departure is the fact that, while states are clearly the primary addressees of human rights obligations, the language of core human rights instruments does not narrowly restrict itself to states. The 1948 Universal Declaration of Human Rights and the two 1966 U N Human Rights Covenants stipulate that '[nlothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.'173 Similarly, the idea of 'private' duties with regard to human rights174-in addition to the traditional, exclusive 'public' duties of states-finds some support in positive law. The Universal Declaration speaks of a duty of 'every individual and every organ of society' to 'strive to [. . .] promote respect"75 and the two UN Covenants even of a 'responsibility' 'to strive for [he promotion and observance' of human rights.176Although this development may not yet lead to the availability of adequate procedural remedies, it has now been reaffirmed by various human rights bodies that the core of human right obligations are binding on all parts of society including the non-state actors. For instance, the CESCR stated in its General Comment No. 14 that '[wlhile only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society-individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well 'as the private business sector-have responsibilities regarding the realization of the right to health. State parties should therefore provide an environment which facilitates the discharge of these responsibilities.'177With respect to TNCs the recently adopted Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights of the UN Sub-Commission on the Promotion and Protection of Human Rights similarly provide that '[wlithin their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law [. . .I. ,178 17' Art 30 Universal Declaration of Human Rights, UN G.A. Res. 217 (1948). Similar language can be found in Art 5(1) of the two 1966 UN Covenants as well as in Art 17 ECHR. '74 Chris lochnick, 'Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Righrs', 21 Human Rights QuarrcrLy (1999), 56; Jordan J. Pausr, 'The Other Side of Right: Private Duties Under Human Rights Law', 5 Ham. Hum. R. J. (1992), 51. 175 Preamble, Universal Declaration of Human Rights, supra note 173. The last preamble paragraph of both Covenants reads in full: 'Rcrtlizing that the individual. having duties to orher individuals and to the communiry to which he belongs, is under a responsibility ro strive for the promotion and observance of the rights recognized in the present Covenant'. 17' UN Committee on Economic, Social, and Cultural Rights. General Comment No. 14: 'The right to the highest attainable standard of health', 11 August 2000. U.N. Doc. E/C.12/2000/4, para. 42. 178 UN Sub-Commission on the Promouon and Protection of Human Rights. Norins on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Sec. 1 2nd sentence. Rights, E/CN.4/Sub.112003/12IRev.L,
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This trend has also manifested itself in the privately endorsed, legally non-binding Asian Human R~ghtsCharter 1998 which confirms the 'primary responsibility' of states for the promotion of human rights but declares in paragraph 2.8: 'The capacity of the international community and states to promote and protect rights has been weakened by processes of globalization as more and more power over economic and social policy and activities has moved from states to business corporations. States are increasingly held hostage by financial and other corporations to implement narrow and short sighted economic policies which cause so much misery to so many people, while increasing the wealth of the few. Business corporations are responsible for numerous violations of rights, particularly those of workers, women and indigenous peoples. It is necessary to strengthen the regime of rights by making corporations liable for the violation of rights.''79 M these developments point in a similar direction. It can be credibly asserted that a contemporary reading of human rights instruments shows that non-state actors are also addressees of human rights norms. If this interpretation is supported by the adoption of legally binding codes of conduct in the future, for instance via treaties, there remains no serious obstacle to considering non-state actors, in this context most likely TNCs, to have gained, at least to some extent,'" international legal personality.'81 As convincing as this reasoning may appear, it still has not wholly rid itself of a certain feeling of circularity.'82 Why would we want to show that non-state actors are subjects of international law? T o demonstrate that they may be direct addresses of human rights obligations. How do we try to show that they are subjects of international law? By asserting that they are direct addressees of human rights obligations under international law. Truly, the suspicion that the whole matter of international legal personality forms a vast intellectual prison and that 'the whole notion of subjects and objects has no credible reality and [. . .] no hnctional purpose"83 is sometimes hard to suppress.
F. Human Rights and General Public International Law: New Intersections Instead of Fragmentation
Nowadays, the fragmentation of international law into special sub-fields, maybe sub-systems, or even self-contained regimes, is frequently deplored as threatening 17' Asian Human Rights Charter, declared in Kwangju, South Korea, 17 May 1998. Available at http:l/www.ahrchk.net/&a~terlpd~/chaner-final.pdf. I no As early as Reparation fir fnjrrrirs Suffered in the Scrvice of the United Nations, Advisory Opinion, ICJ Reports (1949), 174, 178 the ICJ held that '[[]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and the nature depends on the needs of the community'. 181 See Nicola Jagers, 'The Legal Status of the Multinational Corporation Under International Law', in Michael K. Addo (ed), Hrrman Right3 Standards and rbc Rrrponsibiliiy ofTransnationa1 Corporations( 1 999) 259. at 270. I" See Derek W. Bowett. The Luw of International fnrtinrtionr (4th ed., 1982) 337. In3Higgins, rupra note 6. 49.
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the coherence and uniry of international law. Remarkably, this concern apparently prompted the UN's International Law Commission to create a working group to study the phenomenon.'84 It has also led other institutions to pay attention to the various aspects of fragmentation such as the Project on International Courts and ~ r i b u n a l s , focusing '~~ an the proliferation of specialized international courts which, institutionally, may also contribute to the fragmentation of international law. With all due respect for the perceived and actual risks of fragmentation in international law, it appears that with regard to human rights law and nonstate actors chis danger has not materialized, quite the contrary. Whereas human rights law may traditionally have been regarded as a rather arcane sub-field of international law where only specialists had a say, something outside of the international law mainstream, today's human rights law seems to have entered the broader international law arena. The changing framework under which human rights are no longer relevanc not only vis-2-vis states but also with regard to non-state actors may have contributed considerably co this situation. Business and trade lawyers have to deal with human rights issues today. In the past, lawyers advising TNCs or international organizations could probably state confidently rhat they did not have to care about human rights law because it had no practical relevance for them. With increasing demands for human rights compliance by these nonstate actors, they are forced to deal with human rights. Human rights law appears to 'encroach' upon all ocher fields of law, including trade and investment, ' ~ ~might even speak of a slow human rights 'intrusion'. commercial law, e t ~ . One Hardly any field of international law remains unaffected by human rights. At a minimum, it seems that the inter-relatedness of human rights and other parts . I ~ ~also witnesses such crossof international law is increasingly r e ~ 0 ~ n i z e d One fertilization of sub-fields of international law in other areas. The traditionally separate areas of GATT and EC law have increasingly become interrelated, and I84
See Report of the Study Group on the Fragmentation of International Law, AlCN.4lL.628,
1 August 2002, availableat http:lldaccess-ods.un.org/dodUNDOC/LTD/GO2/632/93/PDFlGO263293.pdf?
OpenElement. The original title of the subject of the ILC Working Group was 'The risks ensuing from the fragmentation of international law', a topic included in the ILC's programme of work. Subsequently, the title of the topic was changed to 'Fragmentation of international law: difficulties arising from the diversification and expansion of international law'. See http://www.un.org/law/ilc/scssions/54/54sess.hun. See htcp:llwww.pict-pcti.org/home.html. In' See also recent academic literature, for instance, Stephen Bottomley and David Kinky, Commrrcial Law and Humnn Righrs (2002); Janet Dine, 'Human Rights and Company Law', in Michael K. Addo (ed), Human Rights Standnrdc and the Responsibiliq of'Tranmational Corporations ( 1999) 209. See also the report of the UN High Commissioner for Human Rights, Business and Human Rights: A Progress Report, available at www.unhchr.ch/business.htm;Amnesty International (Dutch Section) and Pax Christi International, Multinational Enrerprzscs and Human Rights (1998) available at http://www.paxchristi.nl/ rnne.hrmi. 187 See Philip Alston. 'The Myopia of the Handmaidens: lnternarional Lawyers and Globalisation'. 8 EJIL (1997), 435, ~t 447, who, in 1997, was nor convinced rhat the 'comparrmentalization' of human rights values within a small part of the discipline of international law had been overcome.
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while lawyers could once specialize in one field, totally ignoring the other, such isolation is no longer feasible.lS8
5. UNDERLYING CAUSES OF T H E PERCEIVED CHANGES Once we try to look beyond certain trends and features describing the changing framework of dealing with non-state actors by trying to explain it, or (more appropriately) trying to identify possible underlying causes of the perceived changes, we are entering highly speculative gounds. Nevertheless, I would like to put the phenomena observed into a broader context and offer some possible partial explanations.
A. Demise of the Nation State; Rise of Non-State Actors The trend towards viewing non-state actors as direct addressees of human rights and other norms of international law may have to do with a major structural change in the international legal order: the decrease and partial disappearance of the concept of the state as a 'mediating"89 factor between the international law level and the rights and duties of non-state actors. The 'waning', 'retreat', or 'demise' of the sovereign state, the centrepiece of the Westphalian concept of the international legal order, has been described, denied, deplored, and applauded for some time in the discourses of international relations and international law, history and sociology, and other
discipline^."^ The declining role of states, manifested through their declining power, leads to the attempt to address non-state actors directly and goes hand in hand with the increase of power and influence of the latter. If it is true that 'with power comes I88
Cf. J.H.H. Weiler, 'Cain and Abel: Convergence and Divergence in International Trade Law', in
J.H.H. Weiler (cd), The EU,thc WTO and the NAFTA (2000) 3.
'"
German international law doctrine uses the term Mtdiatiriemng of non-state actors through states to describe the fact that international law norms are addressed to states only. Even ifthey ultimately intend to regulate non-state behaviour, states have to come in as 'intermediaries' in order to translate the international Law norms into domestic ones. See Karl Zemnek, 'Verancworrlihkeit und Sanktionen', in Hanspeter Neuhold, Waldemar Hummer and Christoph Schreuer (eds), Osterre~chischcsHandbuch drr VoIRcrrechts (3rd ed., 1997) 463. See Joseph A. Camilleri and Jim Fdk, Tht End O f Sovereignly? The Politics Of A Shrinking And Fragrnmting World (1992); Martin van Creveld, The Risc and Dccline of the State (1999); Kenichi Ohmae, The End ofthe Nation Start (1995); Vivien A. Schmidt, 'The New World Order, Incorporated: The Rise of Business and the Decline of the Nation-State', Daedalw (1995) 75; Oscar Schachter, 'The Decline of the Nation-State and its Implications for International Law', 36 Colum.j. Trarunat'l L. (1997) 7 ; Christoph H. Schreuer, 'The Waning of the Sovereign State: Towards a New Paradigm for International Law?', 4 EJIL (1993) 447; Susan Strange. The Retrtat of the State: The Dlfision of Power in the World Economy (1996); Serge Sur, 'The State between Fragmentation and Globalization'. 8 EJIL (1997) 421.
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responsibility'"' then it is only logical to demand human rights observance by those non-state actors which are now as powerful as some states and may thus violate human rights in the same way as states.'92
B. The Retreat of the State as H u m a n Rights Addressee and as '
Human Rights Guarantor
In the current discourse states appear to be no longer the sole addressees of human rights obligations. Attention has shifted to a large degree to non-state actors. But states have also retreated as prime guarantors of human rights. Non-state actors have taken over to set standards, to secure compliance, and to enforce human rights expectations. NGOs, trade unions, church groups, and others no longer rely on the willingness of states and governments to regulate TNC behaviour. Rather, they increasingly put direct pressure on companies and international organizations by mobilizing public opinion.'" This can already be viewed as another form of the 'privatization' of human rights through 'privatized' standard setting, 'privatized' supervision, and 'privatized' e n f ~ r c e m e n t . ' ~ ~ C. Global Trends Toward Privatization
If one reflects upon the changing legal framework of dealing with non-state actors and upon the question why non-state actors are more and more conceived as addressees of human rights norms, potential causes for this change come to mind. One very tempting explanation lies in the fact that non-state actors become more and more powerful and increasingly take over hitherto state functions. This development is, in turn, closely linked to the dual trends ofshifting governmental tasks to international organizations on one hand and to private entities on the other.'95 'Privatization' has not stopped at making inefficient stare-owned enterprises more competitive. TNCs have entered what used to be in many countries 'reserved' state businesses in the 'public service' fields, through the privatization of electricity, gas, and other energy supply services."' But they have not halted there. Private 19' UN Sub-Commission on the Promotion and Protection of Human Rights, Sessional working group on the working methods and activities of transnational corporations, Transnational Corporations and Other Business Enterprises, EICN.4/Sub.2/2002/WG.2~.1/Add.1, 24 May 2002, 5. 1% See Ratna Kapur, 'From Human Tragedy to Human Rights: Multinational Corporate Accountability for Human Rights Violations', 10 Borton Colftgc Third World L.j. (1990) at 2. '91 See McCrudden, rupra note 40, 172. See i n j a text at note 195, for the consequences of traditional 'privatization' in the sense of delegating or outsourcing hitherto starc functions to private non-state actors. 1'15 See August Reinisch, 'Governance without Accountability?', 44 Grnnan Yearbook of Intrrnationnf Law (2001L 270. See also Wilde, rrcpra note 68, at 113. 1% Where non-state actors, usually TNCs, enter the public service-providing industry the traditional sphere of the Drimvirkzings debate comes into play. It may limit party autonomy and thus thc providers' contractual freedom by an obligation to contract with priv&e consumers. ctc. In addition, competition
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companies are now even running prisons and detention centres for immigration services.1y7It is obvious that this requires additional checks and controls on these private actors in the public field. The security forces in 'private prisons' may treat the inmates as badly as public police forces have done. This danger of the privatization of public functions has been clearly recognized by human rights bodies. For instance, in its Comment on the UK's state report under the ICCPR, the Human Rights Committee stated that it was 'concerned that the practice of the State party in contracting out to the private commercial sector core State activities which involve the use of force and the detention of persons weakens the protection of rights under the oven ant'.'^^ At the same time states are increasingly transferring large areas of public functions to international organizations. It is the combined pressure of 'out-sourced' activities that makes human rights protection against non-state behaviour such an urgent task for the future, because only an effective system of dealing with non-state actors will prevent a situation of unaccountabiliry.
D. Globalization Not surprisingly, since all the above reasons are already pointing towards it, globalization is also a prime suspect giving rise to many of the changes perceived in dealing with non-state actors and human rights. Of course, one should be very carefd when talking about 'globalization' which means too many different things to different people. Pointedly, 'globalization' has been called 'the most overused and underspecified concept in the lexicon of the social sciences and policy sciences since the end of the cold war'.19' It is not intended to develop a new theory or even a new definition of globalization here. However, building on a commonly shared understanding of some of the characteristicelements of globalization, it is interesting to see how many of the changes observed may be nicely explained. For our purposes, we can take 'globalization' to mean an increasing process of cross-border societal exchanges and transactions, not limited to economic ones, but including among others communication, security, culture, mobility, and environment, or, as it has been termed, the 'widening, deepening and speeding up of worldwide interconnectedness in all types of contemporary social life, from the cultural to the criminal, the financial to the spiritual'.200But 'globalization' did not just 'happen', it law devices, similar to the prohibition against abusing a dominant position under Art 82 TEC, may help to tame the free play of market forces to the detriment of consumers through discriminatory pricing, etc. '91 According to Kamrninga, supra note 143, at 559, in the US 5% of prison capacity is run by private companies. The largest of these, Corrections Corporation, also operates overseas in the UK and Australia. See www.correctionscorp.com. I98 Comments of the Human Rights Committee, U.N. Doc. CCPR/C/79/Add. 55, 27 July 1995. Richard Higgott, 'Economic Globalization and Global Governance: Towards a Post-Washington Consensus?',in Rittberger, supra note 71, 127, at 128. 200 David Held, Anthony McGrcw, David Goldblatt, and Jonathan Pertaton, Global Tranrfonnarion: Politicr, Economicr and C111turc(1999) 2.
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is also, to an important degree, the result of deliberate political choices. The neoliberal credo of 'Reaganomics' and 'Thatcherism,' advocating economic liberalization, deregulation, and privatization,20' subsequently espoused by the IFIs as Washington contributed largely to the 'retreat of the state'.'03 If w e ;dent& as p-oducts of t h e increased influence of TNCs and other non-state actors, the role of global communications and the media, the enormously enhanced interdependence of states in the fields of trade and investment, services, and finance204we can observe the preconditions for some of the perceived changes described above. The way we deal with human rights and nonstate actors can be seen both as a response to globalization and as a way of using the vehicles of globalization. Demands for human rights accountability on the part of non-state actors is in many respects a consequence of the fall-out, the negative spillover, of an increasingly globalized economy. The loss of state control over TNCs, and the promotion of liberalizauon, privatization, and deregulation by IFIs, contributed to a situation where human rights, particularly social and labour rights, but also the environment and other societal goods, are increasingly threatened by non-state a ~ t o ~Codes s . ~of~ conduct ~ may be regarded as the self-regulatory (or market-induced) approach to the loss of control over powerful non-state actors. Whereas increased resort to extraterritorially, feasible only for the few remaining powerful state or quasi-state actors such as the US and the EU, demonstrates the resolute will of the main international actor, the sovereign state, not to give in. At the same time, the human rights response to globalization relies on the advances of globalization. Global consumer boycotts require an effective Bow of information between activist NGOs and the media in order to convey their messages. They rely on the internet as a crucial vehicle of communication and have on various occasions masterfully employed modern technology for their purposes.20" The information revolution makes corporate wrong-doing more rapidly and more broadly visible. At the same time, the enhanced information flow created by globalization has also contributed to a strengthening of the notion of truly universal and indivisible human rights, to what could be called a 'globalization of human See Christoph Scherrer, Globalirirrung widcr Willen? Die Durchsetzung libcralcr '02 See Higgott, supra note 199, 127. AuJenwirtschafipolitik in a h USA (1999). ' 0 3 See Susan Strange, The Rcrrcat of the State (1976). 204 See Andrew Clapham, 'Globalization and the Rule of Law', The Review: International Commission ofJurisa No. 61 (1999) 17. '05 See also U N Sub-commission on the Promotion and Protection of Human Rights, Sessional working group on the working methods and activities of transnational corporations, Transnational Corporations and Other Business Enterprises, ElCN.4/Sub.2/2002/WG.2N(rP.lIAdd. 1, 24 May 2002, 3. The International Campaign to Ban Landmines, the N G O Coalition for an International Criminal Court, and the Anti-MA1 campaign during the 1990s are impressive examples of the ability of non-stare actors to influence political decisions of states. See Tanja Briihl and Volker Rittberger, 'From International to Global Governance: Actors, Collective Decision-Making, and the United Nations in the World of the Twenty-Firsr Century', in Rittberger, supra note 71, at 8. See also Margaret E. Keck and Kachryn Sikkink. Actiuists btyond Borders: Aduocaq Networks in International PoLtics ( I 998).
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rights',''' although one should not overlook the fact that this may be a one-sided Western view whose universality is denounced elsewhere as 'cultural imperialism'.
6. INSTEAD OF A CONCLUSION-OUTLOOK: WHAT CAN BE DONE T O SAFEGUARD HUMAN RIGHTS AGAINST INFRINGEMENTS BY NON-STATE ACTORS? Where non-state actors replace states in the exercise of public functions, where states are no longer directly responsible for those activities, there is an apparent need to devise systems of accountability, including legal responsibility, for non-state behaviour, particularly, of behaviour that may infringe upon human rights. We are currently witnessing a very dynamic evolution of accountability mechanisms ranging from a more structured form of economic pressure, such as consumer boycotts and ethical investing, to legal liability enforced by national courts. All these are expressions of changes in legal thinking, in the conceptualization of the content and safeguarding of human rights. New frontiers are explored in theory and practice, by doctrine and litigation, and it is hard to predict which trends might ultimately crystallize into a new framework of human rights law relevant to non-state actors. The following section focuses on the l ahta as well as the future potential for legal responsibility for non-state behaviour. Such responsibility systems could be located either on the level of international law or on the level of national law. The following section addresses these two options in turn. It starts by describing the growing perception that states may continue to be held responsible for non-state activities, including those of international organizations, TNCs, and NGOs. Still on the international law level, the question of direct respon;ibility of non-state actors and the concomitant issue of the availability of procedures and institutions is then addressed. Finally, the very lively development with regard to liability under domestic law before national courts is analysed and its potential for the future is addressed.
A. State Responsibility for Non-StateActivities In the traditional concept of human rights, only states were considered to be bound by human rights law and thus only state behaviour could lead to its responsibility in international law. However, we are now witnessing a clear departure from this purely state-centred approach. It has become more and more evident that even existing international human rights instruments could be interpreted so as to lead to state responsibility for non-state activities. This awareness has found its expression not only in legal doctrine,208 but also in a number of decisions by international bodies. 207
McCorquodale. supra note 85, at 9 1 . See Clapham, supra note 29; Kamminga, supra note 143; Kinky, s t p a nore 53, at 38; Peter T. Muchlinski. 'Human Rights and Multinationals: Is There a Problem'. 77 Forrzgn Affairs (2001) 31. 108
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The basic theoretical premise for 'vicarious' or 'indirect' human rights liability of states for non-state activities is deduced from various human rights instruments, which demand that states not only 'respect' human rights, but also 'ensure', 'protect', or 'secure' them.209If there is an obligation on states to ensure human rights f o r
'all
individuals' t h e n t h i s obligation can
be u n d e r s t o o d
to
imply that such
duty may be violated if states fail effectively to protect against human rights infringements by non-state parties. Building on the traditional 'due diligence' requirement under customary international law,210 human rights bodies have interpreted obligations to 'ensure' as state obligations to take measures to prevent non-state violations of human rights. As a consequence, the UN Human Rights Committee held states responsible for failing to do so Also in its General Comments the Committee has used a concept of the 'horizontal effect' of human rights provisions. In its General Comment on the ICCPR's torture prohibition it stated: 'It is the duty of the State Parry to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by Article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private This idea of a vicarious state responsibility for non-state acts was formulated even more expressly by the UN For instance, Art 2(1) ICCPR, supra note 11, provides that 'each State Party [. . .] undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant [. . .]' Similarly, Art 1 of the American Convention on Human Rights provides that 'The States Parties to this Convention undertake to respect the rights and freedoms recognized therein and to ensure to all persons subject to cheir jurisdiction the free and full exercise of those rights and freedoms [. . .I' According to Art 1 ECHR 'The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention'. 210 See Shaw, supra note 56, at 556. See also Giuseppe Sperduti, 'Responsibility of States for activities of private law persons', in Rudolf Bernhardt (ed), IV Enrycloprdia ofpublic Inrrrnational Law (2nd ed., Vubaltrn 2000) 216; Astrid Epiney, Die voIkmrchtliche Vcrannuorrlichkcir uon Staatrn firr re~htswidri~cs im Zusammcnhang mit Aktioncn Privater (1992). See also the reasoning of the Vrhqucz Rodriguez case, in& note 214. ' There is a clear tendency by international courts to interpret this due diligence requirement broadly. In 1997 the ECJ stunned many observers by holding France responsible for a violation of the free movement of goods provisions under the EC Treaty resulting frorn a failure by French officials to rake all necessary measures to prevent private parties, French farmers, from obstructing the free movement of Spanish agricultural products: Case C-265195, Commission u. France [I9971 ECR 1-6959. ''I For instance, in Dclgado Paiz u. Colombia, No. 19511985, the Human Rights Committee found a violation of the right to personal securiry under Art 9(1) ICCPR because the respondent government had failed to take appropriate measures to protect the applicant. In SantuNo v. Uruguay, No. 911977, a case involving torture by unidentified persons, the same Committee held that Arts 2 and 7 ICCPR had been violated because the government had failed to ensure the applicant's physical integrity with an official investigation. General Comment No. 20 (44) 1992 Art 7, CCPR/C/21/Rcv. 1lAdd.3. This broad view clearly contrasts with the restrictive notion used in the Convention against Torture, G.A. Res. 46 (XXXIX) (1984) Art 1 defines torture as: 'any act by which severe pain or suffering, whether physical or mental, 1s intentionally inflicted on a person for such purposes as obtaining frorn him or a third person information 209
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Committee on the Elimination of Discrimination against Women, which stated that: 'discrimination under the Convention is not restricted to action by or on behalf of Governments. . . Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing Regional human rights institutions have also espoused this reasoning in their caselaw. In its well known Ve&squez'Rodriguez judgment, the Inter-American Court of Human Rights held in the case of disappearances that 'an illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the onv vent ion'.^'^ The Strasbourg court h& also adopted a similar reasoning with regard to human rights violations by non-state actors. In Costello-Roberts, a case concerning corporal punishment in a privately run school in the UK, ;he European Court of Human Rights held that 'the State cannot absolve itself from responsibility by delegating its obligations to private bodies or i n d i v i d u a ~ s ' .Though ~~~ a majority found that the treatment did not amount to a violation of the Convention's prohibition of inhuman or degrading punishment, the Court's minority view expounded on the potential liability of the UK by adding that '[a] State can neither shift prison administration to the private sector and thereby make corporal punishment in prisons lawful, nor can it permit the setting up of system of private schools which are run irrespective of Convention par an tee^'.^" The European Court of Human Rights continues to rely on the underlying rationale of the Costello-Roberts case that states parties to the Convention cannot absolve themselves from their human rights obligations by delegating their tasks to non-state actors. It has also applied it with regard to acts of international organizations. In Waite and Kennedy, a case more narrowly dealing with the human rights compatibility of wide-ranging grants of or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It docs not include pain or su&ring arising only from, inherent in or incidental to lawful sanctions.' *I3 UN Committee on the Elimination of Discrimination against Women, General Recornmenahtion 19, 'Vioknre against women', 30 January 1992, U.N. Doc. N47138, para. 9. 'I4 V e h q ~ e Rodn'gucz z U. Hondurar, Inter-American Court of Human Rights, 29 July 1988, Ser. C, No. 4, 9 HRLJ 212 (1988), para. 172. 'I5 Costello-Robmr u. UnitedKingdom, European Court of Human Rights, 1993, Series A, No. 247-C, para. 27. 216 Ibid., Joint Partly Dissenting Opinion of Judges Russdal, Thor Vilhdmsson, Matscher, ?nd Wildhaber, 64.
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jurisdictional immunity to international ~ r ~ a n i z a t i o n s , ~the " Strasbourg Court stated very broadly that '[ilt would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby [i.e. by establishing international organizations in order to pursue or strengthen their cooperation in certain fields of activity and by attributing to these organizations certain competencies and according them immunities] absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution'.218 Most recently, in the Matthews case, also known as the Gibraltar voting case,'19 this reasoning was re-confirmed. There the European Court of Human h g h t s found a human rights violation on the part of the UK stemming from an act of the international organization, the European Community. In the Court's view the violation of the Convention by the EC member state resulted from the member's failure to ensure that its obligations under EC law did not violate the ECHR. This case is also remarkable in respect of the procedural issue of bringing a complaint against an international organization's behaviour. For a long time it was well settled case-law of the European Commission of Human Rights that it would not allow claims against an organization's member states, either individually or collectively, for human rights violations attributable to the organization.220 The policy rationale underlying such 'vicarious' or 'subsidiary' liability is clear: to increase pressure o n states by continuing to hold them responsible for 'out-sourced' or 'delegated' activity in order to make sure that they have a direct interest in regulating the behaviour of non-state actors to whom they have transferred state tasks. This idea was clearly expressed by the UN Human Rights Committee which, after displaying its concern about 'the practice of [a] State party in contracting out to the private commercial sector core State activities which involve the use of force and the detention of persons weakens the protection of rights under the ovena ant',^^' underlined that a 'State party remains responsible in all circumstances for adherence to all articles of the This reasoning applies to both international 'I7 Caseof WaitrandKennedy u. Germany, Eur. Court H.R., Judgment of 18 February 1999; available at http://ww.dhcour.coe.fr/hudoc.See August Reinisch, ' C a r of W a i v and Kennedy u. Gmnany, Application No. 26083194; Cue of B m and Rcgan u. Germany, Application No. 28934195, European Court of Human fights, 18 February 1999'. 93 AJIL (1999) 933. 2'"aite and Kennedy u. Germany. supra note 217, para. 67. Denise Manhms u. United Kingdom, ECrHR, Application No. 24833194, Feb. 18, 1999; available at http:l/ww.dhcour.coe.fr/hudoc. See Henry G. Scherrners, 'European Court of Human Rights: Matthews v. United Kingdom, case note concerning the decision of the European Court of Human Rights', 18 February 1999, 36 Common Market L. Rm. (199% 673. 220 Concerning the European Communities see M(e1chrrs) & Co. u. Federal Republic of Germany, ECommHR, Application No. 13258177, 9 February 1990, 64 DECISIONS AND REPORTS(1990), 138; concerning the European Patent Organization see Hernz u. Contractrng Pnrtzer who arc also Parnes to the European Patent Conuenrion, ECommHR, Application No. 12090192, 10 January 1994,76-A DECISIONS A N D REPORTS(1994), 125. Commcnrs of the HR Committee, U.N. Doc. CCPR/C/79/Add. 55, 27 July 1995. 222 Ibid.
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organizations and TNCs as well as to other non-state actors. States cannot 'absolve' themselves from their human rights obligations by delegating their tasks to private parties, individuals, or international organizations. The privately sponsored Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights of 1997, going beyond the idea of continuing responsibility of states even for delegated activities, revert back to the original core of the responsibility of states to protect human rights by insisting that 'The obligation to protect includes the State's responsibility to ensure that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their economic, social and cultural rights'.223 Clearly this reasoning has a great potential for the future. States, by becoming indirectly responsible for non-state human rights violations, will have a strong incentive to prevent such non-state behaviour. They can do so either by reducing the scope of delegated activities-a rather unlikely scenario given the present trends of privatization, outsourcing, and empowering of international ~r~anizacions~~*--or by strengthening the legal framework calling for the observance of human rights by non-state actors.
B. Direct Accountability of Non-State Actors under International Law and before International Tribunals? Direct accountability of non-state actors is underdeveloped in human rights instruments, and in international law in general, but it is not wholly excluded, either on the level of substance or that of procedure. At present one certainly cannot speak of any established system of international mechanisms whereby nonstate actors are held directly accountable for human rights violations, even though one might recognize an increasing awareness that they are considered to be directly bound by human rights obligations.225 However, a number of recent developments may lead to a ~rofoundchange in how we conceptualize human rights obligations and the human rights accountability of non-state actors. It is not surprising that these are most advanced with regard to international organizations which have been considered to enjoy subjectivity or personality under international law for some time. Thus, the basic idea that they may be directly obliged under international law to respect human rights no longer meets major objections as a matter of principle. But we still seem to be far from establishing the 'jurisdiction' of international bodies to scrutinize the human rights performance of international organizations.226 International organizations are most likely to be considered potential 'objects' of human rights complaints before international human rights forums. Nevertheless, 123 Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights of 1997, reprinted 214 See rrrpra text at note 195. in 20 Human Rightr Quart4v ( 1 998) 69 1. 225 See supra text at note 173. lZG See Reinisch, rupra note 57.
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even in the most 'progressive' human rights forums, including the Strasbourg institutions, it is well settled case-law that human rights bodies generally do not consider themselves competent to decide upon human rights complaints against international organizations which are not parties to the relevant treaty instrument, even if all or some of its member states are.227The Mattbews case suggests that the European Court of Human Rights might be willing to hear complaints against member states of international organizations with regard to activities attributable to those international organizations228 but that does not appear to change the basic premise that international organizations, not parties to the ECHR, are not subject to the Court's jurisdiction. In the view of the European Court of Human Rights its jurisdiction is strictly limited to Contracting Parties. However, insisting on such a formal requirement is not an absolute legal necessity in order to exercise jurisdiction. It would be possible to transfer the idea of a 'functional treaty succession' for these purposes. A 'functional treaty succession' of the EC into the legal position of the EC member states was assumed in the framework of the GATT.~~'When the EC had taken over all the relevant foreign trade powers from the member states it was treated as a member of the G A I T without ever formally adhering to the agreement.230Conceivably, such a functional succession could be pertinent with regard to states which have transferred their human rights-sensitive tasks to international organizations.231 In the EU context, the via regis appears to be accession to the ECHR on the part of either the Union or at least the supranational organizations, EC and EURATOM. Such accession, rejected by an advisory opinion of the ECJ in the early 1990s,2'~ would eliminate the procedural dilemma by directly subjecting the organization to the jurisdiction of the European Human Rights Court. It is interesting to note that, maybe partly as a result of the Manhews case,233 the EU member states are
'"
See Confideration Franpise Ddmorratique du Traoail v. European Communitit-r, alternatively their Member States (a) jointly and (6) sruerally, European Commission on Human Rights, Application 228 AND REPORTS231. No. 8030177, 10 July 1978, 13 DECISIONS See supra note 2 19. 229 Cf. Ernst-Ulrich Petersmann, 'The EC as a GATT Mcmber: Legal Conflicts benvecn GATT Law and European Community Law', in Hilf/Jacobs/Petersmann (eds), The European Community and G A m (1986) 23, at 73. 230 The ECJ held in this regard that '[. . .] in so far as under the EEC Treaty the Community has assumed the powers previously exercised by Mcmber States in the area governed by the General Agreement, the provisions of chat agreement have the effect of binding the Communiry': IntemationalFruit Company v. Produktrchap voor Grurnten en Fruit, Joined Cases 21-24/72, [I9721 ECR 1219, 1227. 23 1 See the argument advanced by the European Commission in Watson and Belmann that '[f lollowing its ratification by [dl] the Member States, the Convention is now legally binding upon the Community': Case ll8/75. [I9751 ECR 1185, at 1194. 132 Accersion of the Community ro the E~tropcan Convention for the Protection of Human Rights and FunLmental Freedomr. Opinion 2/94. 28 March 1996. ECR 1-1753. Scc also J. Kokott and F. Hoffmeister. 'Opinion 2/94. Accession of the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms'. 90 AJIL (19961 664. 233 See supra note 219.
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reconsidering this option.234Apparently they dislike being held accountable for acts of international organizations which they cannot fully control. If this motive can be verified it demonstrates that the indirect enforcement of human rights obligations of non-state actors by holding states liable in a 'vicarious' or 'subsidiary' fashion may prove effective. T o remain with the special case of the EU, one must also mention the possibility of bringing a human rights challenge against acts of the EC and EURATOM, and to a limited extent now also of the EU, before the ECJ. Though not originally provided for in the 1957 Treaty of Rome and never expressly included in any of the subsequent amendments, the fundamental rights challenge has been developed by the ECJ as one of the grounds for annulment,23s thus opening up the procedural avenue of annulment actions for human rights complaints.236 From a traditional international law perspective one could say that in such a case an international court scrutinizes the human rights performance of an international organization. Without entering into the debate about whether the European supranational organizations fit into the traditional category of international organizations,237one has to acknowledge that at present the fundamental rights jurisprudence of the ECJ more closely resembles the task of judicial/constitutional review of a national supreme or constitutional court than an outside human rights body assessing the human rights 234 See Working Group on Incorporation of the Charter/Accession to the ECHR, Modalities and consequences of incorporation into the Treaties of the Charter of Fundamental Rights and accession of the CommunityIUnion to the ECHR, CONV 116102, WG I1 1, Brussels, 18 June 2002, at 21, available at http://register.consilium.eu.int/pdf/en/O2/O/OO116en2.pdf. Meanwhile the Drafi EU Constitution provides in Art 7 para. 2 first sentence that 'The Union shall seek accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms', Draft Treaty establishing a Constitution for Europe, Brussels, 18 July 2003, CONV 850103, available at http://european-convention.eu.int/ d0cs/Treaty/cv00850.en03.~df. 235 According to Art 230 (ex 173) EC Treary, the ECJ is competent to annul any 'act' of the EC institutions if its adoption constituted an 'infringement of the treaty or any rule of law relating to its application'. 236 The early leading cases arc Case 29/69, Staudcr u. City of Ulm [I9691 ECR 419; Case 11/70, Intcmationalc Handrhgese&hafi u. Einfihr- und Vorratsstrllcfiir Getreidr und Fuitmnittel (19701 ECR 1125; Case 4/73, Nold v. Commission [I9741 ECR 491; Case 44/79, Haucr v. Rheinhnd-va& [1979] ECR 3727. This judicial approach was 'codified' in An 6(2) (ex F(2)) EU Treaty: 'The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common td the Member Stares, as general principles of Community law'. See also B. De Witte, 'The Past and Future Role of the European Court of Justice in the Protection of Human Rights', in Philip Alston (ed), The EUand Human Rights (1999) 883; Antonio CasseseIAndrew ClaphamIJoseph Weiler (eds), European Union: The Human Rights Chalhngc (1991); M . Dauses, 'The Protection of Fundamental Rights in the Community Legal Order' (1985) 10 European h w Rev. 398; J . Weiler and N. Lockhart, '"Taking Rights Seriously" Seriously: The European Court and its Fundamental Rights Jurisprudence', 32 CMLRev. (1995) 51 and 579; N. Ncuwahl and A. Rosas (eds), The European Unron and Human Rights (1995). '37 Since its 1964 landmark case Costa v. ENEL. Case 6/64 [I9641 ECR 585, the ECJ asserted that the EC stands for a 'new autonomous legal order'.
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conformity of an international organization. Apart from such doctrinal difficulties with the possibility of generalizing from the EU example one has to recognize that the fundamental rights protection within the EU legd order is unique and has not (yet) been followed by other international organizations.
It is unclear whether the potential for human rights scrutiny of the acts of international organizations can be extended to other non-state actors, such as TNCs or NGOs. O n the international level there is a definite lack of procedures and/or institutions available for this task. The question is whether it is still convincing to attribute this accountability gap to the lack of international legal personality of these non-state actors. International law provides many examples where non-state actors, particularly TNCs, have direct access to international dispute-settlement procedures and where they are considered to enjoy rights directly under international TNCs appear as plaintiffs against states in various ad hoc and institutionalized arbitration systems, such as that under the ICSID onv vent ion.^^' One could thus argue that they should have not only rights but also obligations. If one remains with the ICSID Convention as a point of reference, one can see that the reciprocal element of direct obligations is already included there. The investors as non-state parties may not only institute arbitration, they may also be sued before an ICSID panel. Thus, one might argue that it would be a progressive next step to establish judicial or quasi-judicial forums competent to hear human rights complaints against TNCs. The problem in the human rights field is, of course, that we would be dealing with complaints by non-state actors, the victims of human rights violations, against other non-state actors: private actors against private actors. This is different from the mixed arbitration in the area of investment law. Nevertheless, the broadening of the spectrum of entities considered to be in a position to enjoy rights and obligations, including procedural standing before international dispute-settlement systems, demonstrates that human rights mechanisms for non-state actors are no longer wholly inconceivable on the international level. It would appear, though, that such a major structural change required action by states to create such mechanisms. One would expect that states could decide to establish human rights institutions competent to deal with violations by non-state actors by treaty law. Given the reluctance of human rights bodies to extend their jurisdiction even with regard to international organizations, it appears unlikely that existing institutions would be willing to do so with regard to other non-state actors. However, one should not underestimate the possibility of a progressive case-law that may at least provide fertile ground for enlarging the circle of human rights obligees. It is perfectly possible that human rights institutions may become more assertive in 238
Mixed arbitration is evidence that TNCs may have direct access to dispute settlement on rhe intcrnational level. Sec Pctcr Malanauk, Akehurst jModrrn Introduction to lnrernationa1Z.u~(1997) 10 I. 239 Convention on the Settlement of Disputes benueen States and Nationals of Other States, 18 March 1965, reprinted in 4 ILM (1965) 532. See Christoph C. Schrcuer, The ICSID Conuenrion: A Commentary (2001).
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the exercise of their jurisdiction. While at present one could hardly conceive of, for example, the UN Human Rights Committee entertaining a communication complaining of T N C or N G O b e h a v i o ~ r , ~there ~ ' are already indications in the current practice of adopting General Comments on provisions of the ICCPR and the ICESCR by the two Committees that they are willing to express their view on the human rights conformity of non-state behaviour. A pertinent example can be found in General Comment No. 8 on economic sanctions and respect for economic, social, and cultural rights241 of the UN Committee on Economic, Social, and Cultural Rights. In this Comment the Committee, on the one hand, carehlly stated that it did not in any way call into question the necessity for the imposition of sanctions in appropriate cases in accordance with Chapter VII of the U N Charter; on the other hand, it went on to assert that the Charter's human rights provisions 'must still be considered to be fully applicable in such cases'.242 Thus, it did-though only incidentally-pronounce on the human rights obligations of an international organization, the UN. In its General Comment No. 14 on the right to the highest attainable standard of health243 the CESCR also went beyond reaffirming an indirect human rights obligation on states to ensure that non-state actors do not violate human rights. It broadly asserted that '[wlhile only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society-individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well as the private business sectorhave responsibilities regarding the realization of the right to health'.244 Similarly, the U N Human Rights Commission has indicated its willingness to consider non-state human rights violations under the 1235 and 1503 procedures.245The examples of the ILO and OECD supervision mechanisms246may also be worth considering. Although both codes are also legally non-binding, they provide for standardized reporting obligations and for systematic periodic review by an independent body. This is suggested by U N Sub-Commission on the Promotion and Protection of Human Rights, Sessional working group on the working methods and activities of transnational corporations, Transnational Corporations and Other Business Enterprises, E/CN.4/Sub.2/2002/WG.2NPP.l/Add. 1 , 2 4 May 2002, 26, as the 'creation of additional reporting requirements by States' which would 'request States to include repons about the compliance of business enterprises' or even the power 'to receive [individd] commu~~ications regarding States that have failed to take effective action in response to businesses that have violated the respective treaties'. 14 1 U N Committee on Economic, Social, and Cultural Rights, General Comment No. 8: 'The relationship berween economic sanctions and respect for economic, social and cultural rights', 5 December 242 1997, EIC.121199718. Ibid., para. I. 14' UN Committee on Economic, Social, and Cultural Rights, General Comment No. 14: 'The right to the highest attainable standard of health', 11 August 2000, U.N. Doc. EIC.12/2000/4. 244 Ibid., para. 42. At least with regard to irregular armed groups and drug traffickers. See U.N. Doc. E/CN.4/1990/ 246 SR.54. See supra notes 90 and 91.
"'
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On the EU level, the plans of the European Parliament go even further. It has recommended that a 'code of conduct for European ~ u l t i n a t i o n a l s ' ~should ~' comprise the establishment of a European Monitoring Platform. While no legislative action has been taken yet, the European Parliament decided to set up its own monitoring mechanism comprising public hearings with TNC representatives 'in order to discuss specific cases, of both good and bad conduct'.248 Another potential for a truly international human rights scrutiny of non-state actors may lie in the development of international criminal procedures. The example of the Nuremberg Tribunal already shows that it is not only individuals whose activities may be investigated, but also corporations. There was also some debate about including a provision enabling the new ICC to exercise criminal jurisdiction over legal persons.249 Although no such provision was eventually included in the Rome Statute, it demonstrates that there is potential for corporate criminal responsibility for human rights violations before international institutions. If even criminal responsibility under international law is no longer wholly excluded for non-state actors this demonstrates that there is a clear potential for direct human rights accountability under international mechanisms to be created if the necessary political will exists. Though the formation of such political will may be a formidable task, the important point is that it should be no longer possible to object to it on the basis of theoretical conceptions about the structure of international law. T o put it differently and more simply: as long as states do nor want non-state actors to be directly accountable for human rights violations, they will not become accountable. When states want them to become accountable, they can achieve this by establishing the required institutions and procedures.
C. Direct Human Rights Accountability Before National Courts We have seen that national courts play an increasingly important role in forcing non-state actors to respect human rights standards. Of course, one has to differentiate between the various types of non-state actors. Domestic courts generally lack jurisdiction over international organizations. Whether as a result of constituent treaties, headquarters agreements, or customary international law, courts in virtually all countries respect the functional-and as a matter of practice largely 247
EP Resolution supra note 50. Ibid., para. 20. Such hearings took place in October 2001 concerning European oil companies in Burma. See De Schutter, supra note 51. "' Cf. Arr 23 para. 5 Draft Statute of the International Criminal Court. AICONF.183/2/Add.l (1998). See Andrew Clapham, 'The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court', in Menno T . Kamminga and Saman Zia-Ziarifi (eds), Liability of Mtrlttnarronal Corporations U n d o International L'rw (2000) 139. See also Theodor Meron, 'Is International Law Moving Towards Criminalization?', 9 EJIL (1998) 18, at 19. 218
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absolute-immunity of international organizations.250There is no noticeable trend yet that, in the afiermath of the ~ i n o c h e tdecision^,^^' the jurisdictional immunity of international organizations would be narrowed by carving out a jus cogens or human rights exception, although that may be an option. Even where plaintiffs have asserted claims phrased as human rights violations national courts have not pierced the immunity shield of international organizations.252 The role of national courts uis-&is TNCs and NGOs is quite different. These non-state actors do not enjoy any privileged itanding. As legal persons constituted under the laws of a particular state, or in the case of TNCs and international NGOs frequently under the laws of a number of states, they are subject to the law and jurisdiction.of (all) these states. The 'only' jurisdictional problems that may arise are those stemming from the extraterricorialiry issue often involved.253In this context the open questions are mainly: whether national courts may lawfully (from an international law perspective) extend their jurisdiction over foreign non-state entities; whether they may hold non-state actors which are clearly subject to their jurisdiction liable for acts of other non-state actors, such as foreign subsidiaries or foreign parent companies; and whether (probably least controversially) they may extend their jurisdiction over their own non-state entities for activities abroad. Of course, this entails some very precarious issues and it will be difficult to find the right balance in each case. T o the critics of extraterritorial human rights litigation this legal tool sometimes amounts to 'legalized coercion' by putting pressure upon domestic subsidiaries (or parents) of TNCs. By this type of litigation, foreign parents may be compelled to act or refrain from acting in a particular way. Similarly pressure may lie upon domestic parent companies in order to force foreign subsidiaries to behave in a certain way. The currently booming transnational tort litigation in the US and elsewhere displays remarkable parallels to the 'vicarious liability' concept pursued before 250 See August Reinisch, International Organizations BrfDre National Courts (2000). See also Karel Wellens, Remedz'rr against Intcmational Organivltionr (2002). 251 See Andrea Bianchi, 'Immunity Versus Human Rights: The Pinochet Case', 10 EJIL (1999) 237; Jiirgen Brohmer, 'Diplomatic Immunity, Head of State Immunity, State Immunity Misconccptions of a Notorious Human Rights Violator, Case Note concerning the Decision of the House of Lords, 9 December 1998', 12 Leiah Journal of International Law (1999) 361; Cunis A. Bradley and Jack L. Goldsmith, 'Pinochet and International Human Rights Litigation', 97 Michigan Law h i n u (1999) 2129; Ruth Wedgwood, 'International Criminal Law and Augusto Pinochet', 40 Mrginia Journal of International Law (2000) 829. 252 In Abdi Horh Askir v. Boutros Boutror-Ghali, Joseph E Connor, et al.. 933 FSupp. 368 (S.D.N.Y. 1996) plaintiff vied to recover damages for unauthorized and unlawful possession of his property in Somalia, making a quasi-expropriation claim, and thereby implicitly challenged the legality of the UN's peace-keeping activities. The court, however, dismissed the case for lack of jurisdiction because the defendant organization enjoyed immunity from suit. See Reinisch, rupra note 250, at 200 and 206. See also Michael Singer, 'Jurisdictional Immunities of International Organizations: Human Rights and Functional Necessity Concerns', 36 Virginia journal of Internarional Law (1995) 53. '5' See rupra text starting at note 93.
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various human rights bodies.254But these national court decisions may also provide a fertile ground for the growing acceptance of direct human rights obligations on non-state actors.255 Finally, and here the discussion of extraterritoriality in pursuit of human rights completes che c k l e to the re-emergence of codes o l conduct for the same purpose, this type of direct accountability before national courts appears to be the most efficient legal tool in securing human rights vis-a-vis corporate activities. The reason for this success can probably be found in the fact that the specific characteristics of human rights litigation in common law countries have effectively incorporated the economic arguments in favour of human rights compliance into legal ones. With the cost of the negative publicity surrounding such high-profile cases, and the threat of punitive damages at the end of an already very damaging process, TNCs have realized that respecting human rights makes good business sense. When courts no longer accept the TNC argument that human rights are 'none of their business', this will become costly. It is thus not surprising that prudent corporations make provisions for this eventuality by adopting their own codes of conduct in order to forestall any cases of potential liability. With all the problems of supervision and enforcement surrounding purely voluntary codes, the ultimate threat of costly legal liability remains a valuable counterpart to them. See supra text starting at note 209. Cf. h d i c V . Karadzic, 70 F.3d 232,239 (2d Cir. 1995): 'We do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by chose acting under the auspices of a state or only as private individuals.' 254 255
PUNISHMENT O F NON-STATE ACTORS IN NON-INTERNATIONAL ARMED CONFLICT William A. Schabafl INTRODUCTION Over the last half a century, international law has become increasingly involved in the regulation of non-international armed conflict or, as it is known more colloquially, civil war. In its landmark ruling o n jurisdiction in the Tadic case, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia ( " I C T ) dated the origins of this phenomenon to the Spanish Civil War: As early as the Spanish Civil War (193&39), State practice revealed a tendency to disregard the distinction between international and internal wars and to apply certain general principles of humanitarian law, at least to those internal conflicts that constituted large-scale civil wars. The Spanish Civil War had elements of both an internal and an international armed conflict. Significantly, both the republican Government and third States refused to recognize the insurgents as belligerents. They nonetheless insisted that certain rules concerning international armed conflict applied. Among rules deemed applicable were the prohibition of the intentional bombing of civilians, the rule forbidding attacks on non-military objectives, and the rule regarding required precautions when attacking military objectives.' T h e Appeals Chamber went on to review the evolution of State practice with respect to the application of international law during internal conflicts - situations like the Chinese Civil War of the late 1940s. T h e judgment notes that such developments culminated in recognition by the International Court of Justice ("ICJ"), in the 1985 Nicaragua case, that certain minimum humanitarian standards apply during internal armed conflict.'
* Professor of Human Rights Law, National University of Ireland, Galway and Director, Irish Centre for Human Rights. I . See Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, at para. 100 (Oct. 2, 1995). reprinted in 35 1.L.M. 32 (1995). 2. See id, at paras. 101-02.
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Nevertheless, as is the case in the related field of international human rights law, the traditional view is that these norms constitute obligations imposed upon States, not individuals. It is true that Article 29(1) of the Universal Declaration of Human Rights ("UDHR") says that "[e]veryone has duties to the community,"' and the African Charter of Human and Peoples' Rights gives some particular attention to the ~ u b j e c t .As ~ a general rule, however, international human rights law addresses the question of individual responsibility only in an indirect manner, holding that States are bound to ensure respect for human rights by, for example, enacting and enforcing criminal law." This duty is usually only implicit in the human rights instruments, with some notable exceptions: Convention on the Prevention and Punishment of the Crime of Genocide,' the International Convention on the Elimination of All Forms of Racial Di~crimination,~ the 3. SeeUniversal Declaration of Human Rights, G.A. Res. 217A (Ill), U.N. Doc. A/ 810 (1948). Article 29(1) reads: "Evetyotie has duties to the community in which alone the free and FbII development of his personality is possible." Id. See nOo American Declaration vn the Rights and Duties o r Man, 1992, arts. XXIX-XXXVII, OAS Doc. OEA/ Ser.L/V/II.2.1, Doc. 21, rev. 6 (1992). 4. See African Charter o n Human and Peoples' Rights, 1981, arts. 27-29, OAU Doc. CAB/LEG/67/3 Rev. 5 ( I981 ). 5. SeeVelasquez Rodriguez v. Honduras, 4 Inter-Am. C.H.R. (Ser. C) (1988); Bautista c k Arellana v. Colombia C o n ~ n ~ u n i c a t i onno , 563/1993, at paras. 8.5, 10, U.N. Doc. CCPR/C/55/D/563/ I993 (1998); Streleu, Kessler a n d Krenz v. Germany, (34044/96, 35.532/9, 44801/98) Eur. Ct. of H.R., 2001, at para. 86. See nlso Question of the Impunity of Perpetrators o f H u m ; ~ nRights Violations (Civil and Political), C.H.R. Kes. 1998/ 53, ESCOR Supp. (No.3) a t 175, U.N. Doc. E/CN.4/1998/53, at para. 27 (1998). !. Convention o n the Prevention a n d I'unishment of the Crime of Genocide, 6. & Jan. 12, 1951, art. V, 78 U.N.T.S. 277 [hereinafter Genocide Convention]. Article V reads: The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necess;ny legislation to give effect LO the provisions of the present Convention, and, in par~icular,to provide efl'ective penalties tbr persons guilty of genocide o r any of the other acts enutnet-ated in article 111. Id. 7. See International Convention o n the Elimini~~ion of All Forms of Racial Iliscrimination, Jan. 4, 1969, art.4, 660 U.N.T.S. 195. Article 4 reads: States Parties condemn all propaganda and all organizations which are based on ideas o r theories of superiority of onc race crr group of persons of o n e colour o r ethnic origin, or which attempt to,justify or promote racial hatred and cliscrimination in any form, and undertake t o adopt immediate a n d positive measures designed to eradicate all incitement to, o r acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter &: (a) Shall declare an offence punishable by law all dissemination of ideas b a e d
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909
International Convention on the Suppression and Punishment of the Crime of A ~ a r t h e i dand , ~ the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-
r n e r ~ t ,The ~ duty to prosecute is also set out explicitly in international humanitarian law instruments. Accordingly, Article 146 of the Geneva Convention on the Protection of Civilians requires States parties "to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention.""' o n racial superiority o r hatred, incitement to racial discrimination, as well as all acts of violence o r incitement to such acts against any race or group of persons of another colour o r ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and i n c ~ t eracial discrimination, and shall recognize participation in such organizations o r activities as an offence punishable by law; (c) Shall not permit public authorities o r public institutions, national o r local, to promote or incite racial discrimination.
Id 8. See International Convention on the Suppression and Punishment of the Crime of Apartheid, Jul. 18, 1976, art. IV, 1015 U.N.T.S. 244 [hereinafter Apartheid Convention]. Article TV reads: The States Parties to the present Convention undertake: (a) T o adopt any legislative o r other measures necessary to suppress as well as to prevent any encouragement of the crime of apartheid and similar segregationist policies o r their manifestations and to punish persons guilty of that crime; (b) T o adopt legislative, judicial and administrative measures to prosecute, hring to trial and punish in accordance with theirjurisdiction pelsons responsible-for, or accused of, the acts defined in article I1 of the present ~ o & e n tion, whether o r not such persons reside in the territory of the State in which the acts are committed o r are nationals of that State o r of some other State o r are stateless persons. Id. 9. SCCConvention against Torture and Other Cruel, Inhunlan o r Degrading Treatment o r Punishment,June 26, 1987, art. 4, 1486 U.N.T.S. 85 [hereinafter Convention against Torture]. Article 4 reads: 1. Each State Party shall ensure that all acts of torture are offences under its criminal law. T h e same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity o r participation in torture. 2. Each State P a r q shall make these offences punishable by appropriate penalties which take into account their grave nature.
Id. 10. See Ceneva Convention Relative to the Protection of Civilian Persons in Time of War, Oct. 21, 1950, 75 U.N.T.S. 287. See a h Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Oct. 21, 1950, art. 49, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition
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I. PROSECUI'ION OF "IN'I'ERNATIONAL CRIMES" By and large, the obligation to investigate and prosecute concerns crimes committed within the jurisdiction of a State, that is, its territory, and as a general rule, is limited to serious crimes of violence against the person. Arguably, many of the norms that impose a duty to investigate and prosecute serious violent crimes against the person, are not only binding upon those States that have signed, ratified, or acceded to the relevant treaties, but are also obligations imposed by customary international law. These obligations are enhanced with respect to a somewhat narrower category of offenses that are sometimes described as "international crimes." The Rome Statute of the International Criminal Court ("Rome Statute") declares: "Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes . . ."" The concept of "international crimes" is not clarified further in the Rome Stanitel%r, for that matter, in any of the other relevant treaties. Rather, it is a customary international law concept, and it implies not only a duty upon a State to prosecute those crimes that take place on the territory of that State, but crimes outside the State as well. The Rome Statute gives the International Criminal Court ("ICC" or "Court") jurisdiction to prosecute three "international crimes", namely, genocide, crimes against humanity, and war crimes.':' In the recent Arrest Wurrant case, the ICJ referred to "crimes against humanity and war crimes" rather than to international crimes,I4 probably because there may be other "international crimes" that lack the same level of importance and do not strike at the core of fundamental human rights. The exclusionary clauses in the 1951 Conof the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Oct. 2 1 , 1950, art. 50, 75 U.N.T.S. 85; Geneva Convention Kelative t o the Treatment of Prisoners of' M'ar (IV), Oct. 12, 1950, art. 129, 75 U.N.T.S. 135. I I. See Rome Statute of the International Criminal Coi~rt, U.N. DOC. A/ CONF. 185/9. Pmhl. ( 1998) [herein;~fterRotne Statute]. 12. See id. art. I . I.?. See id. art. 5(1). See genc?rrrl/yM'II.I.IAM SCI-IAHAS, IN.I~RODUCI~ION.ro THE ROME S-ri\.r~~m (2001) (noting that while Article 5(1) contemplates possibility of prosecu~ion for aggression, the crime iuelfis leli undefined, and the conditions for prosecution are not specified). At present, and for the foreseeable future, the ICC is not capable of prosecuting the crime of aggression. 14. Seecase Concerning the Arrest Warrant of 1 I April 2000 (Congo v. Belg.) 2002 I.C.,J. 121.
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469
911
vention Relating to the Status of Refugees ("Refugee Convention") seem to make a similar distinction, recognizing a category involving "a crime against peace, a war crime, or a crime against humanity," and another, almost certainly broader, category of "acts contrary to the purposes and principles of the United Nations." 1.5 Drug trafficking, for example, may be an "international crime" and "contrary to the purposes and principles of the United Nations," but it is almost certainly neither a crime against humanity nor a war crime, nor can it be said to rise to the same level of gravity." In other words, when the Rome Statute refers to a duty to exercise criminal jurisdiction over those responsible for international crimes, it is surely referring to crimes against humanity and war crimes, but probably not to drug trafficking. For the purposes of this discussion, the term "international crime" will be used in this narrow sense, and on the understanding that it overlaps more or less precisely with the category of crimes considered by the ICJ in the Arrest Warrant case, and that set out in article I(F) (a) of the Refugee Convention.'' Crimes falling within this category also include genocide and apartheid, both of which are often said to be merely specific categories of the broader concept of "crimes against humanity."Ix 15. See Convention Relating to the Status of Refugees, Apr. 22, 1954, 189 U.N.T.S. 137 [hereinafter Refugee Convention]. 16. See Pushpanathan v. Canada, [I9981 1 S.C.R. 982, at paras. 59-60. 17. See Refugee Convention, supra 11.15, art. 1(F) (a) 18. There is much authority for the view that genocide is also a crime against humanity. See p e r n l l y Apartheid Convention, supra n.8 (recognizing that apartheid is a crime against humanity). See also Convention on the Nonapplicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Nov. 26, 1970, art. 1, 754 U.N.T.S. 73. See also European Convention on the No~i-Applicabilityof Statutory Limitation to Crimes Against Humanity and War Crimes of Jan. 25, 1974, art.1 (1), Eur.T.S. No.82; Second Report on the Draft Code of Offences Against he Peace and Security of Mankind, [1984] 2 Y.B. ON H.R. 93, at paras. 2829; Report of the International Law Commission on the Work of its Forty-Eighth Session, C.N. GAOR 5lst Sess., Supp No.10, at G l f i e ~ DROI-I , INTERNATIONAL PENAL CONVEN86, U.N. Doc. A/51 / I 0 (1996); STEFAN TIONNEL 109 (1970; Yoram Dinstein, Crime~fAgainst Humanity, in THEORY OF INTERNATIONAL LAWAT THE THRESHOLD OF THE 21s-r CENTURY 905 (Jerzy Makarczyk ed., 1997); Theodor Meron, International Criminalisation of Internal Atrocities, 89 AM.J . INT'LL. 554, 557 (1995); Tadic, Case No. 1T-941-AR72, at para. 140; Prosecutor v. Tadic, Case No. IT-941-T, Opinion and Judgment, paras. 622, 655 (May .7, 1997) [hereinafter Tadic Opinion and Judgment 19971; Prosecutor v. Tadic, Case No. IT-941-A, Judgment, at para. 251 Uul. 15, 1999) [hereinafter Tadic Judgment 19991. Seegenerally Report on the Situation of Human Rights in Rwanda submitted by Mr. Rene Degni-Segui, Special R a p porteur, under paragraph 20 of resolution S3/1 of 25 May 1994, U.N. Doc. E/CN.4/
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Recognition of a "duty to exercise criminal jurisdiction" in thc case of international crimes raises a number of important questions. At a minimum, it clearly means the obligation to prosecute crimes committed on a State's territory. But, as has already been noted, this duty exists, in any event, under various human rights treaties as well as under customary law with respect to a broad range of crimes against the person, many of which d o not rise to the seriousness of "international crimes". The duty of States resulting from international human right. law to prosecute crimes committed on their territory corresponds to another general principle of public international law by which States exercise criminal law jurisdiction over their own territory and nationals.'" Louis Joinet has pointed out that "[oln principle, it should remain the rule that national courts have jurisdiction, because any lasting solution must come from the [Nlation it~elf."~" However, "all too often national courts are not yet capable of handing down impartial justice or are physically unable to funct i o n ~.2 1 Frequently, too, they are resistant to this responsibility, usually because the authorities involved in prosecution are complicit with the perpetrators themselves. Even if it is not necessarily an element of the offence, the crimes in question - genocide, apartheid, torture, and so on - almost invariably imply State policy and involvement or, at the very least, tolerance. Definition of an act as an "international crime," as opposed to simply an "ordinary" crime against the person, has a number of consequences, whose objective is to facilitate prevention and punishment of the act. In the case of international crimes, there may be a duty upon States to ensure prosecution of offences committed elsewhere, should they obtain custody of a suspected offender. States guarantee that these crimes are adjudicated either by trying the accused person themselves, or by extraditing him or her to another State that is prepared to do so. This is 1996/7. at para. 7 (1994); Report of the Committee o n the Elimination of Racial Discrimination, U.N. Doc. A/.52/18, at para. 159 (1997). 19. See S.S.IA>~LIS(Fr.v. Turk.), 1927 P.C.I.J. (Ser.A)No.10, at 70 (Sept. 7 ) . 20. See Commission on Human Rights, Questions on lrnpunity oJP@etrators of Human Rights Violations (Civil and Polzlical), at para. 28, avail&& at http://www2.hri.ca/fortherecorci1997/doc11menta~ior1/subco1111r1ission/e-c-sb2-1997-20.htm. 21 . see id.
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913
often known by the Latin expression aut dedme aut judicare (literally, "extradite or prosecute"). The principle is designed to ensure that perpetrators of particularly serious crimes are brought to justice. This obligation is set out in Article 5 ( 2 ) of the Convention Against Torturez2and in the "grave breaches" provisions of the Geneva convention^.^:' However, there is nothing similar in the Genocide Convention or the Apartheid Convention. Some writers have argued that aut dedere aut judicare for international crimes is also a customary norm.'L4 In the case of international crimes, it is also said that States must recognize that crimes committed within their own jurisdictions - that is, on their sovereign territories - may be prosecuted by other States on a basis known as "universal jurisdiction" .25 This is obviously implicit in the obligation aut dedere aut
judicare. Unlike aut dedere nut judicare, universal jurisdiction is rarely set out in international treaties. In the case of the Genocide Convention, for example, the drafters quite intentionally decided to exclude universal jurisdiction, and to specify that genocide should be prosecuted by the State upon whose territory the crime was committed or, alternatively, by an international c o ~ r t . ~In " 1948, at the time the Genocide Convention was drafted, States were very nervous that another State might purport to have the authority to prosecute such serious violations of human rights as genocide, committed upon their own territory. This was at the beginning of the Cold War, and they feared political mischief in various forms. Recently, in individual opinions issued as part of the judgment in the Arrest Warrant case of February 14, 2002, several judges of the ICC recognized that the exercise of universal jurisdiction in the case of international crimes (i.e., crimes against humanity and war crimes) was consistent with customary interna22. See Convention against Torture, supra n.9, art. 5 ( 2 ) . 23. See Fourth Geneva Convention, .wpm n.10, art. 49. 24. M.CHERIF BASSIOUNI & EDWAKD M . WISE,AUT DEDERE Au~.J U D I ~ RT E H E, DUTY TO EXTRADITE OR PROSECUTE I N IFSTEKNA.~.IONAI. LAW3-5 (1995) (on file with author). 25. See Colleen Enache-Brown & Ari Fried, Universal Crime, Jurisdiction und Duty: The Obligation of Aut Dedere Aut Judicare i n Inlernalionnl Law, 43 MCCILLL.J. 613, 621 (1998) (defining universal jurisdiction as principle that assumes that every State has interest in exercising j~irisdiction to combat egregious offenses that States universally condemn). A. SC:HABAS, CENO26. SeeCenocide Convention, su@a n.6, art. VI. See ~~LOM'ILLIAM CIDE I N INTERNATIONAI. IAW 46 (2000).
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tional law.27 However, since several judges disagreed, it cannot be said that the question is entirely re~olved.'~In December 2002, an application was filed before the ICC that requires it to address the matter and, perhaps, resolve it definitively.'' The law has developed considerably over the past decade o r so with respect to whether or not acts committed during noninternational armed conflict are punishable as "international crimes". Two specific questions need to be considered: the meaning of the term "non-international armed" conflict, and the acts punishable as international crimes when they are committed during non-international armed conflict. A. Non-International Armed ConJlict and the Other Categories The distinction between international and non-international armed conflict exists because States have historically been more willing to accept obligations about the conduct of war and the treatment of victims, especially non-combatants, when the conflict is international in nature. International humanitarian law was originally concerned with reciprocal commitments between sovereign States.'" At the time of the Spanish Civil War in the late 1930s, it did not really admit any particular role for international law in the case of internal conflict." Since that time, international humanitarian law has developed more or less in parallel with the related field of international human rights law, which, from its very beginning, has addressed individuals rights vis-a-vis the States that have jurisdiction over them, rather than 27. See Case Concerning Arrest Warrant of 11 April 2000 (D.R.C. v. Belg.), 2002 I.C.J. 121, at para. 59 (Feb. 15) [hereinafter Arrest Warrant C h e ] (joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal; Dissenting Opinion ofJudge Van Den Wyngaert). 28. See id. Separate Opinion of President Gilbert Guillaume: Individual Opinion of Francisco Kezek; and Declaration of Raymond Ranjeva. 29. See Press Release, lnternational Court of Justice, The Republic of the Congo seises the lnternalional Court of Justice ("ICJ") of a dispute with France (Dec, 9, 2002), avuik~blea1 http://www.nieuwsbank.nl.en/2002/12/11 /r004.htm (stating that proceedings in the case are conditional upon France consenting to jurisdiction of the Court, pursuant to Article 36 of Statute of the International Court ofJustice). See also Statute of the International Court ofJustice. 1978 I.CJ. Acts & Docs. 5, avuikuhk at http://www. icjcij.org/icjwww/ibasicdocuments/Base~,htm. 30. See HENRY J. STEINER & PHILIP ALSTON,INTERNATIONAL HU,MANRIGHTSIN CONTEXT 56 (2d ed. 2000) (identifying inherently international character of humanitarian law of war). 31. This is not to say that rules of humanitarian law did not apply to non-international armed conflict. See Tadic, Caqe No. IT-941-AK72 at para. 33.
473
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PUVISHMEhT 01; NONSiATE ACTORS
915
in the context of reciprocity that prevails generally in public international law.'' From the standpoint of positive law, the starting point is common Article 3 to the 1949 Geneva Conventions, a provision that constitutes a kind of summary codification of norms applica-
ble in what is described as "armed conflict not of an international character.""" The minimum standards applicable in such conflicts were further developed and supplemented in Additional Protocol I1 to the Geneva Conventions ("Additional Protocol"), adopted in 1977.:'4 Unlike common Article 3, the Additional Protocol attempts to define the concept of "non-international armed conflict," applying it to armed conflicts that take place between a State's armed forces and dissident armed forces or other organized armed groups, "which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol."" I t adds: "This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts."'" The Rome Statute, adopted on July 17, 1998, defines non-international armed conflicts slightly differently, as "armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups."" The definition of non-international armed conflict is intricately bound up with the existence of organized non-State armed groups. These are the "non-State actors" in the title of this Article. Common Article 3 of the Geneva Conventions, at least explicitly, imposes no such requirement, but the other two instruments insist, for their application, upon the presence of "non-State actors" with a certain level of organizational capacity. 32. See Si-LINER & ALSTON,supra 11.30, at 57 (identifying interconnectedness of human rights law and international law). 33. SeeGeneva Convention relative to the Protection uf Civilian Persons in Time of War, sup0 n.10, art. 3. 34. See Protocol Additional to the 1949 Geneva Conventions and Relating to The Protection of Victims of Non-international Armed Conflicts (Protocol I I ) , atered into force Dec. 7, 1978, 1125 U.N.T.S. 609 [hereinafter AP I l l . 35. See id. art.1. 36. See id. art. 2. 37. See Rome Statute, sujm n.1 I , art. 8 ( Z )(0.
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The requirements in the Additional Protocol are somewhat higher than those of the Rome Statute, in that in the former case, the non-State actor must actually control territory. It must be "State-like," even if it lacks all of a sovereign State's attributes, and does not enjoy recognition by other States, or membership in international ~rganizations.~"t the low end of non-international armcd conflict, the definition hinges upon the intensity of the conflict, rather than upon the level of organization or territorial control of its non-State participants. There is a common denominator of humane conduct applicable to both international and non-international armed conflicts, as well as to circumstances that d o not even rise to the threshold of non-international armed conflict - the "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature" referred to in Article 1 of the Additional Protoc01.'~ Such norms would include the prohibition of summary executions and torture, and they are as much a part of international humanitarian law, as they are of the international human rights law. They are the nonderogable norms of the major human rights treaties4" They are also norms of customary international law,4Land are sometimes described as peremptory or jus cogens norms.42
B. Individual Responsibility i n Nun-International Armed Conflict What, then, is the significance of the distinction between international and non-international armed conflict, and between non-international armed conflict and riots or sporadic acts of violence, as it concerns the kind of atrocity that is prohibited under all three legal regimes? Probably the most important 38. See AP 11, supra n.34, art. 1. 39. See id. art. l ( 2 ) . 40. See International Covenant on Civil and Political Righe, 1976, art. 4(2), 999 U.N.T.S. 171 [hereinafter ICCPR]. See also Convention ror the Protection of Human Rights and Fundamental Freedoms, 1955, art. 15(1), 213 U.N.T.S. 221 [hereinafter European Convention on Human Rights]; American Convention on Human Rights, 1979, art. 27, 1144 U.N.T.S. 123. 41. Set ICCPR, sujwa 11.40. See alto General Comment No. 24, Issues relating to reservations made upon ratification or accession to the Convenant or the Optional Protocols thereto, or in relation to declarations under this article 41 of the Covenant, Human Rights Committee, U.N. Doc. CCPR/C/21/Rev.l/Add.6, at para. 8 (1964). 42. See ICCPK, supra n.40. See also General Comnlent No. 29, States of emergency (Article 4 ) , U . N . Doc. CCPR/C/21/Rrv.l/Add.ll, at para. 1 1 (2001).
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4 75 91 7
issue, at least historically, has concerned the punishment of such acts as "international crimes." The rapid growth and expansion of international criminal law in the past decade or so, of which the centerpieces are the ICC together with the Rome Statute, may tend to obscure the relatively underdeveloped status of this body of law for most of the second half of the twentieth century. That certain violations of international humanitarian iaw might incur individual criminal liability was first established at Nuremberg, in 1946.43 These "violations of the laws and customs of war" reflected prohibitions in the 1907 Convention (IV) Respecting the Laws and Customs of War By Land ("Hague Con~ e n t i o n " )but , ~ ~were also considered to form part of customary international law. Because the entire concept of legal regulation of non-international armed conflict was in its infancy, it was not considered that there could be international criminal liability for violations of humanitarian law in non-international armed conflict. In 1949, when the Geneva Conventions were adopted, certain rules concerning international criminal liability were codified. This is the "grave breach" regime, as it is known in the Conventions, and as has already been mentioned, it establishes obligations upon States to prosecute or extradite (aut dedere aut judicare) in the case of certain particularly serious violations. Because it was generally believed that common Article 3 was the only provision in those instruments that governed non-international armed conflict, the prevailing view was that the grave breach system simply did not apply in such cases.4" In other words, there were no "international crimes" in non-international armed conflicts. Proposals to extend the grave breach system to 43. See generally Judicid Decisions: Inlcrtrulionnl 7'ribz~nnl(Ntcrmberg), Judgment and Sentences, Ocl. 1, 1946, 41 AM.J. IW'L L. 172 (1947) [hereinafter Judicial L)ecisions]. 44. See Convention (IV) Respecting the Laws and Customs of War by Land, Oct. 18, 1907 [I9101 U.ICT.S. 9, Annex. 45. But see Tudic, Case No. IT-94-1AR72 Separate Opinion of Judge Ahi-Saab on the Defense Motion for Interlocutory Appeal on Jurisdiction, at para. 100 (Oct. 2. 1995) (stating that customary international law had extended application of grave breaches system to non-international armed conflict). See also Prosecutor v. Delalic, Case No. IT-9621-T,Judgrnent, at para. 202 (Nov. 16, 1998). Seegenerally Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2-PT, Decision on Joint Defence Motion to Dismiss the Amended Indictment for Lack ofJuristliction based on the Li~nitedJurisdictional Reach of Articles 2 and 3 (Mar. 2, 1999); Prosecutor v. Aleksovksi, Case No. IT-94-14/1T, Opinion dissidente du juge Rodrigues, President de la chambre de premiere instance, at paras. 44-49 (Jun 25, 1999).
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non-international armed conflict were rejected by those who negotiated the Additional Protocol. This did not mean that non-State actors, and the individuals composing them, escaped punishment. Usually, States contended that rebel groups are mere "outlaws" or "bandits," and as such, their conduct is governed by ordinary criminal law. Many countries in the throes of civil disturbance or conflict have their jails packed with criminals claiming to be "political prisoners." Typically, nonState actors would escape individual criminal responsibility when they were victorious, or when they were able to obtain amnesty in return for a peace agreement. In both situations, the result has been impunity. There is a long tradition of this, and still no shortage of contemporary examples, such as the Belfast Agreement of 19984'iand the Peace Agreement between the government of Sierra Leone and the Revolutionary United Front ("RUF")of Sierra Leone of 1999 ("Lorn6 Peace Agreement"),47that brought an end to the conflict in Sierra Leone. The recognition that acts committed by non-State actors - as well as, of course, by the States themselves and those acting on their behalf - during non-international armed conflict constitute international crimes has, despite amnesty in a peace agreement or some form of inability or unwillingness to prosecute, subjected such acts to prosecution by the courts of other States. This has been done under the principle of universal jurisdiction or the jurisdiction of an international criminal court. But well into the 1990s, it was widely believed that there was simply no individual criminal liability - as a matter of international law - during non-international armed conflict. When the matter was litigated before the Appeals Chamber of the ICTY, in 1995, most specialists supported this view. Judge Haopei Li referred to a number of authorities on this, including Professor Theodor M e r ~ n , ~the ' Commission of Experts appointed by the Security Council (the "Bassiouni Commission") ,4Y and the Inter46. See Agreement Reached in Multi-Party Negotiations, Apr. 10, 1998, 1r.-UK, rrvccilrcble nt h t t p : / / w w w . n i o . g o v . u k / i s s u e s / a g r e e l i n k s g n . 47. See Peace Agreement between the Government of Sierra Leone and the Revonl http://www.sierralutionary United Front of Sierra Leone Uul. 7, 1999), a~~ailabb leone.org/lomeaccord.html. 48. See Theodor Meron, War Cn'mes in Yugoslauio ccnd the Developmen1 oJ/nlmmlion.al L(~n~, 88 AM.J . INT'L L. 78, 80 ( 1994). 49. SeeFinal Report of 27 May 1994 of the Commission of Experu established Pursuant to Security Council Kesolution 780, at 13, U . N . Doc. S/1994/674 (1992).
477
Non-State Actors and International Law 20031
PUNISHMENT OF NON-STATE ACTORS
919
national Committee of the Red Cross ("ICRC").50 The landmark ruling of the Appeals Chamber established that violations of the laws or customs of war could be committed in non-international, ' approach of the as well as international, armed ~ o n f l i c t . ~The Appeals Chamber was subsequently confirmed in the Rome Statute, which establishes subject-matter jurisdiction of the ICC over war crimes committed in non-international, as well as international armed conflicts." Nevertheless, the lists of punishable acts are somewhat different depending upon the nature of the conflict, so it cannot be said that the distinction has lost all legal significance. The fact that atrocities committed by non-State actors during non-international armed conflict are also punishable as offenses falling under the general rubric of crimes against humanity should not be lost sight of. But until recently, the question of whether or not crimes against humanity were punishable if committed during non-international armed conflict or in peacetime, was also subject to contention. The original definition of "crimes against humanity," established at the London Conference for the purposes of the Nuremberg Trials of the major war criminals, confined the concept to acts committed in association with international armed conflict. The Nuremberg Tribunal refused to convict the Nazis for acts committed prior to the outbreak of the Second World War, in September 193gm5' Since Nuremberg, certain types of crimes against humanity were recognized, by international treaty, as being international crimes even when committed in peacetime and therefore, a fmtion', during non-international armed conflict. The first of them was genocide, defined as the "intentional destruction of a national, racial, ethnic or religious group." Article 1 of the 1948 Genocide Convention specifies that it is a crime under international law "whether committed in time of peace or in time of war"..54 Although not spelled out, it is clearly understood that 50. See Tadic, Case No. IT-94-1-AR72, Separate Opinion of Judge Li on the Defence Motion for Interlocutory Appeal on Jurisdiction, at para. 9 (Oct. 2. 1995). 51. See Tadic, Case No. IT-94-1-AR72, at paras. 12836. 52. See Rome Statute, supra n.11, art. 8. 53. See Judicial Ilecisions, supra n.35. 54. See Genocide Convention, supra n.6, art. 1 . Article 1 reads: The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
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the Apartheid Convention and the Torture Convention both have a similar scope. Thus, as a matter of treaty law, applicable to States that have bound themselves to the relevant instruments, it has been possible to punish certain types of crime against humanity - genocide, apartheid, torture - even when committed in peacetime or during non-international armed conflict. Many would argue that these norms form part of customary international law as well, and therefore, apply even to States that have not ratified or acceded to the relevant treaties. But in any event, until quite recently, persons charged with most of the acts punishable as crimes against humanity, could continue to refer to the Nuremberg precedents and argue that such offences were only punishable when committed during international armed conflict. T o that extent, they were more or less similar in scope to war crimes. Here, too, a decisive change in the law was operated by the Tadic Jurisdiction Decision of the Appeals Chamber of the ICTY. It held that "[ilt is by now a settled rule of customary international law that crimes against humanity d o not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all."5" Like the conclusion that war crimes could be committed in non-international armed conflict, this finding was also endorsed in the Rome S t a t ~ t e . ~ " Ill.
5.5. See 'liulic, Case No. IT-941-AK72, a t para. 141. 56. See Rome Statute, supra n. l I, art. 7(1 ). Article 7( 1 ) reads: For the purpose of this Statute, "crime against humanity" means any of the following acts when cornmii~edas part of a widespread o r systematic attack directed against any civilian population, with knowledge of' the attack: Murder; Extermination; Enslavement; Deportation o r forcible transfer of population; Imprisonment o r other severe deprivation of physical liberty in violation of fi~ndamentalrules of international law; Torture; Kape, sexual slavery, enfrmecl prostitution, forced pregnancy, enforced sterilization, o r any other frmm of sexual violence ot'comparable gravity; Persecution against any identilihle group o r collectivity o n political, rdcial, national, ethnic, citltural, religiotts, gender as defined in paragraph 3, o r other grounds that are universally recognized as impennissible under interr~ationallaw, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
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921
T h e recent non-international armed conflict in Sierra Leone provides a n excellent example of the importance of recognizing that acts committed in non-international armed conflict by non-State actors are punishable as "international crimes." Article IX of the Lome Peace Agreement between the RUF and the government of Sierra Leone, granted a full amnesty and pardon to the participants in the conflict that had raged from March of 1991. Moreover: [t]o consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official orjudicial action is taken against any member of the RUF, ex-AFRC [Armed Forces Revolutionary Council], ex-SLA [Sierra Leone Army] or CDF [Civil Defence Forces], in respect of anything done by them in pursuit of their objectives as members of those organizations since March 1991 up to the time of the signing of the present Agreement. In addition, legdative and other measures necessary to guarantee immunity to former combatants, exiles and other persons, currently outside the country for reasons related to the armed conflict shall be adopted, ensuring the full exercise of their civil and political rights, with a view to their reintegration within a framework of full legality." Although a "moral guarantor" of the agreement, the United Nations ("U.N.") attached a note to the document declaring that it could not recognize amnesty for serious international crimes, although it had made n o similar objection in 1996 when an earlier peace agreement had been n e g ~ t i a t e d . ' ~In January 2002, a n international body, the Special Court for Sierra Leone, was established by the U.N. a n d the government of Sierra Leone to prosecute certain international crimes committed during the armed conflict." Article 10 of its Statute declares: "An amnesty Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
(i)
Id. 57. See Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, art 1X Uul. 7, 1999). See gmerally Karen Gallagher, No Justice, No Peace: The Ixgalities and Realities of Amn~slyin S i m a Leone, 23 T . JEFFERSON L. REV.149 (2000). 58. See Peace Agreement between the Government of the Republic of Sierra I.eone and the Revolutionary United Front ot Sierra Leone, art. 14 (Nov. 30, 1996). 59. See Agreement between the United Nations and the Government of Sierra Le-
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granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution.""" Moreover, the amnesty in the Lom6 Agreement is also no obstacle to prosecution by courts of other States acting pursuant to universal jurisdiction. It is now beyond any doubt that war crimes and crimes against humanity are punishable as crimes of international law when committed in non-international armed conflict. Non-State actors, who may be members of guerrilla movements, armed bands, and even provisional governments, are subject to prosecution on this basis. Where, for whatever reason, trials are not possible or desirable before the courts of the territory where the crimes have taken place, justice systems of other States may assume their responsibilities and prosecute on the basis of universal jurisdiction. Amnesty or some other measure of impunity a p plicable in the State where the crime has taken place, is no obstacle or bar to trial elsewhere. These developments in the law most of them quite recent - mean that perpetrators of serious violations of human rights during non-international armed conflicts, including non-State actors, are far less likely to escape justice than they were in the past. 111. DEFINING THE CRIMES: THE CASE OF SEPTEMBER 11, 2001
The principles concerning the punishment of non-State actors for offenses committed during non-international armed conflict, apply to the extent that the acts committed fall within the definitions of "crimes against humanity" and "war crimes." This is an area where there is much room for debate. Both cateone on the Establishment of a Special Court for Sierra Leone, U.N. Doc. S/2002/246 (Jan. 16, 2002). 60. Id. art. 10. SM a k o S. Beresford & AS. Muller, 7%e Special Court f i S i m i Leone: INT'L L.1. 635, 639 (2001 ) . See p l e r a l ~Micaela Frulli, 7 1 ~ : An Initin1 Commmzl, 14 LEIDEN Sl~ecialCourt for Sierra Lmne: Some Preliminary Comments, I 1 E U K . J . INT'L I>. 857 (2000); Robert Cryer, A "SflecialCourt"fr,rSierr~cIdone?, 50 Iwr'~.& COMP.I... Q. 435,437 (2001); Suzannah Linton, Cambodia, Eml 7i'mnr anA S i m n Leone: Expnimenls in I n t m n t i o n n l , ~ u s L. FORUM 185 (2001); Avril McDonald,S i m n Leone's Shoestring Spccinl Court, ticc, 12 CRIM. 84 INT'L REV. RED CROSS121, 125 (2002); Melron C. Nicol-M'ilson, Accounlabilily for H,umnn fighls Abuses: The Unikd Nations'Sflecial Court for Sierrn Leon6 [2001] AUSTL.INT'L Lj.159, 163; Celina Schocken, The Special Court& Sierra Leone Dom~ieruand &commenINT'LL. 436, 450 (2002). daliom, 20 BERKELEYJ.
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gories of crimes have been defined by treaty law, the current benchmark being the provisions of the Rome Statute. In the case of crimes against humanity in particular, it is the threshold requiring that the acts be part of a "widespread or systematic attack directed against any civilian population" that poses much of the difficulty in interpretation and application. For the purposes of illustration, and because it is a matter of considerable interest at the present time, this Article examines, in detail, the terrorist acts committed on September 11, 2001. Most of the available evidence suggests the conclusion that the perpetrators are best described as "non-State actors," even if they may have received some support and encouragement from the existing government of Afghanistan. The existence of an armed conflict is also a matter of some debate, but certainly few would argue that this was a case of international armed conflict, in the sense of a war between two sovereign States. In the weeks that followed September 11, 2001, many recognized authorities in the field of international law described the attacks as a "crime against humanity." The U.N. High Commissioner for Human Rights ("UNHCR"), Mary Robinson, used this characterization," as did the London barrister, Geoffrey Robertson,"' and the French legal academic, Alain Pellet." In the academic literature, M. Cherif Bassiouni used the term "crimes against humanity," but without real e~planation,"~ while Antonio Cassese was somewhat more circumspect, observing cautiously that "it may happen that [Sltates gradually come to share this characterisation . . .""' Mark Drumbl discussed the matter without taking any real po~ition,~"mplying that it was perhaps so obvious as to require no discussion, as did Nico Schrijver."' 61. Press Release, U.N. High Commissioner of Human Rights, Statement by the High Commissioner for Human Rights to Informal One-Day Meeting of Commission on Human Rights (Sept. 25, 2001). 62. Geoffrey Robertson, Amen'ca CouM Setlle This Score Without Spilling Blood Across (U.IC), Sept. 18, 2001, at 18. Afgltunislan, TIMES 63. Alain Pellet, Non ce' n'est @s la guerre!, LE MONDE, Sept. 21, 2001, at 12. 64. Set. M . Cherif Bassiouni, Legal Conlrul of lnternational Terrmism: A Poliqy-Otiented INT'L L.J. 83, 84 (2002). Assesstnenl, 43 HARVARD 65. See Antonio Cassese, Terrorism is Also Disputing Some Crucial Lxgal Categmies or Internufional Law, 12 E U R .J . INT'L L. 993, 995 (2001). 66. See generally Mark A. Drumbl, Judging the I 1 September Terrorist Attack, 24 HUM. KTS. Q. 323 (2002). 67. See N .J. Schrijver, Responding lo Inlrmzaliunal IIPerron.~m:Moving the h n l i e r s of Intemntlu,zal luru jbr Enduring Freedom '9, 48 NETH.INT'L L. REV. 271, 282 (2001).
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Among non-governmental organizations("NG0s") , Human Rights Watch ("HRW) used the term "crimes against humanity,""' although the International Commission of Jurists ("ICJ") was more hesitant and equivocal.'' Justification for the use of the term "crimes against humanity" LO describe the terrorist acts of September l l t h hinges on what is essentially a literal reading of the definition of "crimes against humanity" that appears in Article 7(1) of the Rome Statute, namely murder "committed as part of a widespread or systematic attack directed against any civilian p~pulation".~" It is of course true that in a literal sense, the September l l t h attacks were "widespread" and "systematic," and the victims were "civilians." But then, this can be said of the conduct of practically any serial killer. There is no significant judicial precedent to support such an interpretation, despite the growing body of case law giving meaning to the concept of "crimes against humanity" in a contemporary setting. Moreover, those who advocate describing terrorist acts as "crimes against humanity" must deal with the uncomfortable fact that terrorism was quite explicitly excluded from the subject-matter jurisdiction of the ICC. The Rome Statute provides that the Court will have jurisdiction over genocide, crimes against humanity, war crimes and aggression, but it does not cover terrorism. The Final Act of the U.N. Diplomatic Conference of Plenipotentaries on the Establishment of an International Criminal Court ("Final Act"), adopted at the same time as the Rome Statute, notes that "terrorist acts, by whomever and wherever perpetrated, and whatever their forms, methods and motives, are serious crimes of concern to the international community" - language that implies that they ought to be included in the Rome S t a t ~ t e . ~The ' Final Act then goes on to regret the fact that no definition of terrorism could be agreed upon, adding that the situation may well change when the Rome Statute 68. See Human Rights Watch, H u t n n n Righrs N e w , St$fem/m If: One Year On: A Message lo the Human fights Community (Sep. 9, 2002), available at http://www.hnv.org/ press/2002/OY/septI I .htm. 69. See Roderico Andreu-Gueran, 7itn.r,,.istnr:el droils dt l ' h n t n n ~ , [ZOO21 REV. INT'L COMM'N O F JURISTS 31, 35. See nko U.N. Doc. A/CONF.185/C.l/L.27. 70. Rome Statute, .supra n.1 I , art. 7 ( 1 ) . 71. See Final Act of the United Nations Diplomatic Conference of Plenipotentaries o n the Estddishment of an International Crinlinal Court, Res. E, U.N. Doc. A/ CONE. l83/lO Uul. 17, 1998) [hererinafter Final Act].
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is reviewed seven years after its entry into f ~ r c e . ~In ' its final statement at the Rome Conference, Turkey lamented the fact that terrorist crimes "were not covered by the S~atute."'~ The exclusion of terrorism from the Rome Statute is perhaps not as serious an obstacle as it may seem, however. Although "terrorism" is a concept that has eluded definition, there can be no doubt that acts that may terrorize civilian populations in order to achieve political objectives may also, in specific circumstances, constitute crimes against humanity, or war crimes, or for that matter, genocide. There is undoubtedly an overlap. But this does not mean that terrorist. acts are, by definition, crimes against humanity merely because they may appear to be "widespread or "systematic" attacks on civilian victims. There is something profoundly unsatisfjring about legal constructions that are rooted in literalism and that have n o precedent among judicial authorities. Progressive jurists tend to eschew literal interpretation in favor of a purposive or teleological approach, aimed at the true intent of the drafters of the legislation, rather than some unpredictable technical result that may fly in the face of what the provision was meant to say. The problem with the literal approach to crimes against humanity that is proposed by some jurists, is that while it may catch the events of September l l t h , it leaves the concept with indeterminate parameters and virtually impossible to distinguish from other "terrorist" acts of lesser magnitude, such as the release of sarin gas in the Tokyo subway, the bombings in the Paris metro, IRA bomb attacks in the City of London or at Canary Wharf,74or the destruction of the federal office building in Oklahoma City by a few right wing eccentrics. Until recently, it was generally agreed that crimes against humanity required a "State policy" component, and this would probably have been enough to exclude the events of September 1 1 th from the ambit of "crimes against humanity." This was how "crimes against humanity" were originally conceived of when the 7'2. See id.
73. Six: THE CRIMINAI. COUKI., THE KIN^ OF T H E ROMESTATUTE, Issrm, N ~ c o - r m ~ ~ KESULI~S n ~ s , 629 (Koy [.re ed., 2000). ~ N . I ~ E H N A ~ I F I O N A I .
74. See Dovyda Virka~nkas,7'lie Role of Seccitilj hfdligerrce Sewice i n (I Octrrocrrtq, Norlh Atlantic Tre(~ty Orgunizalion: Detwcrulic 1.11slilrition I%lloroslrij~sI-'roqan~me 1 5 (June 1 5, 1999). ~cvoilrcbbat h t t p : / / w w w . n a t o . i n t / a c i i d / f e I l o w / 9 7 - Y Y / (providing list of prominent terroris1 attacks in 1990s).
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term was first coined for the Nuremberg trial of the major war criminals. For example, in 1994, in one of the major national prosecutions for crimes against humanity, R. v. Fznta, the majority of the Supreme Court of Canada relied upon expert witness M. Cherif Bassiouni, who had testified that "'[Sltate action or policy' was a pre-requisite legal element of crimes against humar~ity,"~" view that seemed to be common ground even for the dissenters." But the law was already changing, and in 1997, a Trial Chamber of the IClY held that "crimes against humanity" required "a governmental, organizational or group policy" rather than the narrower ' [S]tate policy.'"" The Trial Chamber relied upon the views of the International Law Commission, which had greatly broadened the scope of crimes against humanity when it gave them an essentially negative definition, stating that this was driven by "the desire to exclude isolated or random acts."7x But focusing on this negative aspect can lead to absurd results, such as the inclusion of individual serial killers. In any event, the Trial Chamber limited the scope of "crimes against humanity by invoking the "policy" requirement, which, it must be said, had never been part of the literal definition of "crimes against humanity." At the very least, this expansion of the definition made it applicable to certain "non-State actors." The specific problem faced by the Trial Chamber of the ICTY in Tudic, was qualification of acts of "ethnic cleansing" carried out in furtherance of the Bosnian Serb entity that ruled over parts of Bosnia and Herzegovina from April 2992. According to the Trial Chamber: An additional issue concerns the nature of the entity behind the policy. The traditional conception was, in fact, not only that a policy must be present but that the policy must be that of a State, as was the case in Nazi Germany. The prevailing opinion was, as explained by one commentator, that crimes against humanity, as crimes of a collective nature, require a State policy "because their commission requires the use of the State's institutions, personnel and resources in order to com79. See R. v. Finw, [I9941 1 S.C.K. 701, 760-64. See nbo M. CI.IERIF BASSIOUNI, CHIMES ACAINSI. HUMANIIY 24-3-81 (2d rev. ecl., 1999). 76. See id. at 773. 77. SeeTadic Opinion and Jqdgement 1997, sufiro n.18, at para. 645. 78. See tin at para. 648.
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mit, or refrain from preventing the commission of, the specified crimes described in Article 6(c) [of the Nuremberg Charter]." While this may have been the case during the Second World War, and thus the jurisprudence followed by court, adjudkadng charges of crimes against humanity based on events alleged to have occurred during this period, this is no longer the case. As the first international tribunal to consider charges of crimes against humanity alleged to have occurred after the Second World War, the International Tribunal is not bound by past doctrine but must apply customary international law as it stood at the time of the offences. In this regard the law in relation to crimes against humanity has developed to take into account forces which, although not those of the legitimate government, have defacto control over, or are able to move freely within, defined territory. The Prosecution in its pre-trial brief argues that under international law, crimes against humanity can be committed on behalf of entities exercising de fact0 control over a particular territory but without international recognition or formal status of a "a2 jure" State, or by a terrorist group or organization. The Defence does not challenge this assertion, which conforms with recent statements regarding crimes against humanity.'"
As an authoritative statement of the law, this paragraph still leaves some ambiguity. T h e judges declare that "the law in relation to crimes against humanity has developed to take into account forces which, although not those of the legitimate government, have de facto control over, o r are able to move freely within, defined territory," indicating that the entity must be "State-like." Then, however, they cite the Prosecutor's view that this might extend to "a terrorist group o r organisation," a view apparently unchallenged by the Defense. But an ephemeral reference to submissions by the Prosecutor is hardly a firm precedent. And, absent this puzzling sentence in the Tadicjudgment, there is little else in the way ofjudicial authority upon which to anchor the contention that terrorist acts like those of September 1 1 th constitute crimes against humanity. T h e approach of the Trial Chamber in Tadic was confirmed a year later at the Rome Conference, when delegates agreed to include within the text of the definition of "crimes against humanity" a reference to the policy element. Paragraph 7(2) (a) of 79. See id., at para. 654.
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the Rome Statute states that the words "attack directed against any civilian population," which are part of the opening words of the definition of "crimes against humanity," "means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to o r in furtherance of a State or organizational policy to commit such attack."'" The Elements of Crimes and Rules of Evidence and Procedure, adopted subsequent to the Rome Conference in order to provide greater clarification and specificity to the definitions, wrestle with the issue of State or organizational policy, but do nothing to clarifjr whether this might extend to a group like Al-Qaeda. In a rather surprising judgment, the Appeals Chamber of the ICTY has ruled recently that no plan or policy is required as an element of the definition of "crimes against humanity."" The judges stated that "[t] here was nothing in the Statute o r in customary international law at the time of the alleged acts which required proof of the existence of a plan o r policy to commit these crimes," adding in a footnote that "[tlhere has been some debate in the jurisprudence of this Tribunal as to whether a policy or plan constitutes an element of the definition of crimes against h ~ m a n i t y . " ~ T h e rise no mention in the judgment of the "plan" requirement in Article 7 of the Rome Statute. One would have expected the judges to at the very least address this anomaly. Perhaps the reference to customary law "at the time" the acts were committed is meant to suggest that the Court considers plan or policy to be a requirement now, even if it was not in the early 1990s. The best that can be said is that the situation is far from clear. It is certainly rather facile to rely upon a literal application of the words "widespread o r systematic" so as to subsume the terrorist acts of September I 1 th within the ambit of "crimes against humanity." Despite the recent ruling of the Appeals Chamber, there is much support for the view that historically, crimes against humanity required an ingredient of State policy, and that this was later extended to cover atrocities by "State-like" 80. See Rome Statute, sr~jn-a11. l I , art. 7(2) ( a ) . 81. See Prosecutor v. Kuna~ac,d nl., Case N o . IT-YWL3 & IT-96-23/1-A, Judgement, at para. 98 (June 12, 2002). 82. See id. at pala. 98,n.l 14.
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entities is beyond dispute. As a Trial Chamber of the ICTY wrote: "[tlhe need for crimes against humanity to have been at least tolerated by a State, government or entity is also stressed in national and international case-law. The crimes at issue may also be State-sponsored, or at any rate, may be part of a governmental policy or of an entity holding defado authority over a territ~ry."~" Whether crimes against humanity also reach into the vast realm of crimes that are more than "random or isolated acts" committed by organized groups like Al-Qaeda,84the Red brigade^,'^ the Baader-Meinhof gang,'" the lrish Republican Army," the Ulster Volunteer Force,"" and for that matter - why not? - the Hell's Angels, can hardly be considered to be settled as a matter of law. The very reason why the concept of crimes against humanity was originally developed at Nuremberg, was so that atrocities that went unpunished by the judicial authorities of the State in question would not escape prosecution. Mass murder of the disabled, or of the Jews and the Gypsies, might have been cloaked in some bizarre legality within Germany, but pursuant to the Nuremberg Charter, these acts would not go unpunished. This continues to be the case with respect to crimes conducted as part of a State policy, or the policy of a "State-like" entity like the Republika Srpska (Serbian Republic), or the Revolutionary Armed Forces of Colombia ("FARC")"Y-controlledzones in cen83. See Prosecutor v. Kupreskic, el ol., Case No. 1T-95-1&T,Judgement, at para. 552 Uan. 24, 2000). 84. See U.S. Dep't of State, Appendix 8: Bnckground lnforntalion on Terroris1 Groups (Apr. 30, 2001), nunilable nl http://www.state.go~~/s/ct/rls/pgtrpt/2000/245O.htm [hereinafter Terrorist Grotifi I n f i n a t i o n ] . 8.5. Sa? Red Srigtrk.~Brigale Rosst!, m~niktble nl h~tp://www.ict.org.iI/i~~tel_ter/ orgdet.cfin?orgid=S6 (describing group as Marxist-Leninist whose aim is separation of Italy from M'cstern Alliance). I t is an ultra-Leftist group that left its mark on the Italian political scene in the 1970s and 80s. Id. 86. See &d A m y F(iction ("KAY):Barthr-Meinhof Gong, nuailable nt http://www.ict. org.il/inter-ter/orgdet.cfn1?orgid=J5 (stating that RAF was born out of student protest movement in the 1960s). It emerged from the Baader-Meinhof Gang and its ideology was based on a commitment to violence in the service of the class struggle. Id. 87. See 7'errmisl Croup InfmnLion, suprrc n.84 (describing lrish Republican Army ("IRA") as Marxist terrorist group formed it1 1969 as clandestine armed wing of Sinn Fein, the political movement dedicated to removing British forces from Northern Ireland and unifying Ireland). 88. See BBC, Pammilitaries: Ulster Volunteer Force, nunilrtble at http://www.bbc.co.uk/ history/war/troubles/Fdctfiles/i~vf.sht~nI (stating that Ulster Volunteer Force ("UVF") was formed in 1966 to combat rise in lrish nationalism). 89. See Terrorist C.roufi I n f m n l i o n , supra 11.84 (describing FARC as the largest, besttrained, and best-equipped insurgen~organization in Colombia). Established in 1964
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tral Colombia. But it is hardly a problem with respect to genuine terrorist groups, where the justice systems of the States, whose populations are targeted, are more than eager to prosecute. As a general rule, the problem with contemporary terrorist groups is apprehending the perpetrators, and not with finding some legal framework by which the courts of the territory where the crimes were committed may prosecute. The enthusiasm of human rights lawyers for the "crimes against humanity" qualification in the aftermath of September 1 1 th is probably explained by two factors. First, there was quite a legitimate revulsion at the military response proposed by Washington and many felt that if a strong case could be made for criminal prosecution, this would answer arguments by which bombing Afghanistan was the way to bring Al-Qaeda to justice. But the very compelling argument that criminal prosecution was preferable to military attack, does not at all require that the terrorist acts be described as "crimes against humanity." Murder in Manhattan can be prosecuted under both State and federal law, and it is subject to the most supreme of penalties. Indeed, a prosecutor in New York City would see little benefit in an indictment for crimes against humanity, with its complex thresholds and contextual elements, when 2,900 charges of murder would be more than enough to do the trick, and far easier to prove. Second, as US. opposition to the ICC continued to accelerate, there was a sense that highlighting the new dynamism of international criminal justice might help the American public opinion to evolve in a positive direction. Recognizing that the ICC could not itself fill the gap as the Rome Statute can only cover acts subsequent to its entry into force (which took place on July 1, 2002), some went so far as to call for the establishment of a new international tribunal.'" This would, of course, have been an option, but it would also have required a decision by the Security Council, and that is tantamount to saying that it could only be created if this was the desire of the US. government. Even if the ICC had been in operation, and even if the United States had been a State Party to the Rome Statute, the Court could never have been the forum for prosecution of the as a guerrilla army, FARC is organized along military lines and includes several urban fronts. Id. 90. Set Rome Statute, s u p r ~n.11, ~ art. I 1 ( 1 ) .
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September 1lth terrorists. That is because the Rome Statute only allows the ICC to exercise its jurisdiction when those States that normally exercise criminal jurisdiction over a crime, are either unwilling or unable to p r o ~ e e d . ~And ' never has a justice system been more willing and more able to act than in the present case. The suggestion that international justice would be preferable because it would be impossible for Al-Qaeda terrorists to get a fair trial within the United States, should not be entertained. Like all justice systems, that of the United States is not without serious problems. But in terms of fairness and the rights of the defense, it stands up rather well against its competitors. There can be little doubt that terrorists accused before the State or federal courts in New York City would be provided with all of the basic guarantees of a fair trial set out in such international standards as Article 14 of the ICCPR.Y2 Advocates of describing the September 11th events as "crimes against humanity" sometimes argue that the text of Arti91. See id. art. 17(l)(a). 92. See ICCPR, supra n.40, art. 14. Article 14 reads, in relevant part: I . All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law . . . 2. Evelyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed proinptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) T o be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. Id.
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cle 7 of the Rome Statute should be interpreted broadly and flexibly. In this way, unclear cases, like the Twin Towers attacks, are to be made to fit within the definition. These advocated have obviously forgotten the terms of Article 22(2) of the Rome Statute, which reads: "The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or c o r ~ v i c t e d . " But ~ ~ aside from concerns about fairness to the accused, supporters of the ICC should consider the damage that an excessively liberal interpretation may d o to the ratification campaign. Concern about a "flexible" interpretation of the definition of "crimes against humanity" are surely very much in the minds of the many States who have signed the Rome Statute, but hesitated at ratification. To summarize, while a literal reading of the definition of "crimes against humanity" may plausibly be considered to catch the September l l t h atrocities, a purposive and contextual construction provides considerable support to the contrary view. Certainly, there is no particular legal interest in describing them as "crimes against humanity." Attempts to stretch the definition so as to encompass these criminal acts may actually discourage ratification of the Rome Statute. The terrorist acts of September l l t h constitute murder on a mass scale, punishable as an ordinary crime by the courts of the United States. Never in human history has a State been more willing and able to prosecute than in the case of the September l l t h attacks. There is no need to bring to bear the emerging body of international law that has developed in order to address impunity when the State where the crimes took place is unwilling or unable to prosecute. Indeed, efforts to encompass terrorist crimes, like the attack on the World Trade Center, may ultimately distort and damage the campaign against impunity.
CONCLUSION Non-State actors - like State actors - are increasingly exposed to the threat of accountability and punishment for abuses of human rights. If human rights law has shown itself to be somewhat limited with respect to non-State actors precisely because it is focussed on the obligations of the State towards indi99. Sec Rome Statute, s 7 ~ p r an.1 I , art. 22.2.
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vidual's within its jurisdiction, this is not the case when it comes to individual liability for international crimes. The broadening of the scope of the concept of "crimes against humanity" and war crimes in recent years, so as to include acts committed in time of non-international armed conflict, has been of decisive importance in this respect. As the judges at Nuremberg observed in condemning the Nazi leaders for their atrocities: "[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."94
94. .See Judicial Decisions, supra 11.43.
Torture Committed by Non-State Actors: The Developing Jurisprudence from the Ad Hoc Tribunals JILL MARSHALL*
Abstract. This paper examines the jurisprudence of the ad hoc war crimes tribunals on torture. Through case law analysis, it investigates the dcvelopmcnt of a definition oftorture at customary international law for international criminal law which differs from that in the UN Torture Convention and that generally applied in human rights law. The author examines this analysis for insights into individual responsibility and individual protection under international criminal law and international human rights law.
1. Introduction In the 1990's, both the former Yugoslavia and Rwanda, completely separately, experienced vicious civil and ethnic conflicts in which many atrocities were committed. These included genocide, large-scale executions, expulsions of groups of people from varying ethnic or religious backgrounds, mass rapes and gross sexual abuses, often on a systematic and planned basis. Hatred expressed through vile acts on former neighbows was widespread. In the midst of this chaos, international law eventually intervened. Diplomatic negotiations led to investigations culminating in reports of the United Nations' Secretary-General. These reports recommended the establishment of the first ad hoc tribunals seen internationally since those at Nuremberg after World War 11.' The UN Security Council set up the ad hoc tribunals - the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) -pursuant to its power to decide on measures necessary to maintain or restore international peace and security. The Statutes of both tribunals differ and run on separate court systems: the ICTY in the Hague and the ICTR in the Hague and
* Dept of Law, Queen Mary University of London; email [email protected]. With thanks to refcrecs of Non-State Actors and International Law for their helpful comments. I SC Res. 827,25 May 1993 (cstablishing the International Criminal Tribunal for the Former Yugoslavia (ICTY)); SC Rcs. 955, 8 Nov 1994, reprinted in 33 ILM (1995, (establishing the International Criminal Tribunal for Rwanda (ICTR)). SC Rcs. 780, (1992) had established a Commission of experts in the former Yugoslavia. The decision to establish the ICTY was taken after thc findings of this Commission: UN Doc. S12522 1,Annex I, para 9. The Security Council adopted the Statute for the ICTR after having noted a number of reports on the situation in Rwanda indicating that genocide and other systematic widespread violations of international humanitarian law had been committed there. A special tribunal was also later established in relation to alleged violations of international law in Sierra Leone - UN Doc. S/20001915 -in October 2000. The Sierra Leone court will not bc examined in this article. See J. O'Brien "The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia" (1993) 87 AJIL 639; A. Cassese International Criminal Law (Oxford: Oxford University Press 2003) for more details of these proccsscs.
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Arusha. However, both share a common prosecutor and a common Appellate Chamber. Now in the "'midlife' stage of the [ICTY's] e~istence",~ and as the International Criminal Court (KC) prepares its prosecutions, analysis is presented in this article of the jurisprudence of these two ad hoc tribunals. The analysis is specific, focusing only on the tribunals' developing jurisprudence on the definition of torture and the requirement or not for public official involvement. A shift - highlighted by some scholars recently - is evident in this definition of torture.3 Through case law analysis from the ad hoc tribunals - and it is mainly from the ICTY - it is shown how individual responsibility for one's actions, irrespective of who you are, is paramount. This analysis is used to question the nature of individual protection and responsibility, particularly the state's role in that, at international criminal and international human rights law. Although the focus rests on the ad hoc tribunals' jurisprudence, a brief overview will be given of, first, the position of torture under international law and how it is defined in International Conventions and then, secondly, how these definitions have been developed by human rights' courts.
2. Torture Definitions in International Conventions Torture is almost universally viewed as such an extreme violation of fundamental human rights that no derogation is possible from its prohibition. However, although condemned on a worldwide scale, there is also evidence of its regular p r a ~ t i c e . ~ Torture is both morally and legally condemned in the 1948 Universal Declaration of Human Rights which at Article 5 states that "no-one shall be subjected to torture or to cruel, inhuman or degrading treatment or p~nishment."~ Torture's prohibition is commonly considered to be of jus cogens status at customary international law, being a non-derogable peremptory norm of international law, binding without the need for However, it is positively legally prohibited in conventions treaties and ~ignatories.~ binding on their state signatories where certain definitions are sometimes set out. Definitions are provided in the Declaration on Torture 1975 at Article 1; the InterAmerican Torture Convention 1985Article 2 and the UN Convention Against Torture (UNCAT) Article 1.' Torture is prohibited in other international treaties but no P. V. Sellers "lndividual(s') Liability for Collective Sexual Violence" in K. Knop (ed) Gender and IIuman Rights (Oxford: Oxford University Press 2004) at p. 155 referring to minutes of the SC, 4429th mecting, 27 Novcrnbcr2001, SlPV.4429 (discussing the Prosecutor's "exit strategy" for the ICTY and the ICTR). See M. Evans "Getting to Grips with Torture" (2002) 5 1 ICLQ 365; M. Evans "State Rcsponsibility and the European Convention on Human Rights: Role and Realm" in M. Fitzmaurice and D. Sarooshi (cds) Issues of State Responsibility Before International Judicial Institutions (Oxford: Hart Publishing 2004); C. de Than and E. Shorts International Criminal Law andHuman Rights (London: Sweet & Maxwell 2003) at chapter 7. See, for example, www.hrw.orgldocl?~torturc;www.amnesty.org. UDHR 1948 General Assembly Resolution 2 17A (111). "ee, for example, N. S. Rodley The Treatment ofPrisoners in International Law, 2nd Edn (Oxford: Clarendon Press 1999) at p. 74. ' Declaration on the Protection ofAll Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by GA Res. 3452 (XXX) of 9 December 1975; the InterAmerican Convention to Prevent and Punish Torture 9 December 1985, 25 1.L.M (1986) 519; UN
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definition is expressly set out.8It can constitute violations of international humanitarian and criminal law, as well as human rights law. Protection during times of war is provided by the prohibition on torture in the Geneva Conventions which provide protection and regulation during wars.9Those protected are divided between combatants and non-combatants. Protection is given during times of conflicts both internationally and non-internationally, with greater protection given to victims of the former. Torture is prohibited pursuant to these Conventions, and their two additional protocols, as a crime against humanity and a war crime.1° Because of the lack of definitions of torture, when one is sought in cases before courts, reference is usually made first to UNCAT. The definition provided there clearly requires the requisite pain and suffering to be ". . . inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . . ." But the question is, does this definition reflect the customary international legal position? The ad hoc tribunals'jurisprudence has evolved to show that it does not. Before this evolution is investigated, I want to briefly look at how the definition of torture has been dealt with by human rights' courts.
3. Human Rights' Courts Interpretation of Torture Definitions
The Inter-American Court of Human Rights and the European Court of Human Rights (ECtHR) have investigated the meaning of torture, seeking to interpret the relevant legal instruments in their juri~prudence.'~ As a consequence, a broadening of what falls within the scope of "an act of a public official" has occurred and there is an increased tendency to focus on what the state can legitimately be held responsible for. A state may, in certain circumstances,be in breach of its human rights' obligations when it fails to prevent forms of torture from occurring, as well as for its own officials actually carrying out the torture. Convention against Torture and Other Cmcl, Inhuman or Degrading Treatment or Punishment, GA Rcs. 39146; 1465 U.N.T.S 85,23 1.L.M (1985) 535. For cxample, in the Intcmational Covenant on Civil and Political Rights 1966 at Article 7, the American Convention of Human Rights 1969 Article 5 and the Europcan Convention on Human Rights and Fundamental Freedoms 1950 (ECHR) at Article 3. Other specific human rights instruments also condemn acts of torture, for cxample, the Convention on the Rights of the Child 1989 Article 37. The first Gcncva Convention seeks to provide assistance to wounded and sick Armed forces in the field; the sccond to the wounded and sick and shipwrecked at sea; thc third provides for the treatment of Prisoners of War and the fourth rclates to the protection of civilians: see 75 UNTS 31, 75 UNTS 85, 75 UNTS 135, 75 UNTS 287. Articlc 2 to all four Conventions specifies when the four conventions are to apply. This includcs all cascs of dcclarcd war or othcr armcd conflict arising bctwccn two or morc of thc partics to thc Conventions. These Conventions apply in addition to human rights law protection. "' "[I9771 Protocol Additional to thc Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armcd Conflicts" 8 June 1977, 1125 UNTS 3 (entered into forcc 7 Dec 1978), 16 ILM 1391 (1977) and "[I 9771 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armcd Conflicts" 8 June 1977 1124 UNTS 609 (entered into force 7 Dec 1978) 16 ILM 182 (1977). I ' See VelasquezRodr~guezv Hondurm 29 July 1988 in the Intcr-American Court and extcnsivc European casc law from Ireland v UK 18 January 1978 onwards.
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The division in interpretations by the ECtHR in different cases has been noted by some commentators.12For example, in Selmouni vFrance 1999, in contrast to earlier ECtHR jurisprudence, recourse is made to UNCAT, requiring public official involvement.I3How this impacts on human rights protection for torture will be analysed further below. Yet it is in the ad hoc tribunals' jurisprudence where the public official element has most clearly been discarded in the context of its interpretation of torture under customary international and international criminal law. It is here that individual responsibility for actions is clearly required - regardless of that individual's status. The subject of international law has traditionally been the nation state, leaving individuals with no direct status under international law, instead having to depend on the support of national governments to bring cases on their behalf.14However, individuals have been recognised as the subjects of international law in their own right in the fields of human rights and international humanitarian law.I5With the expanding reach of these areas of law and the rapid development of the inter-related area of international criminal law, including the establishment of the ad hoc tribunals and the ICC, national governments are no longer free to treat "their" citizens as they think fit. Instead new norms in political affairs set out limits on, and curtailments of, state power.I6 Increasingly, new norms are also emerging internationally to prevent and punish particular instances of individuals' power over other individuals, regardless of where such events take place and who those individuals are. Such norms can be seen from the ad hoc tribunals' prolific jurisprudence.
4. Ad Hoc Tribunals' Development Pursuant to Articles 2 to 5 of the ICTY Statute, the ICTY has jurisdiction over grave breaches of the Geneva Conventions, other violations of the laws or customs of war, genocide, and crimes against humanity allegedly committed after 1 January 1991 in
l 2 For example, see M. Evans supra note 3 and OMCT Europe "Interpretation of the Definition ofTorture or Cruel, Inhuman or Degrading Treatment or Punishment in the light of European and International Case law" presented to the EU Network of Independent Experts in Fundamental Rights 30 October 2004. For example, comparisons are highlighted between HLR v France 29 July 1997 and Selmouni v 1;rance 28 July 1999,29 EHRR 403 in the OMCT report. " The Selmouni line has been followed in, for example, Ilhan v Turkey 27 June 2000,34 EHRR 36: see analysis by M. Evans 2004, supra note 3. l4 In comparison to the cases before the ICTY, for example, the International Court of Justice (ICJ) heard the case of Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro) 1993 ICJ. Proceedings were therefore taken by one state against another undcr thc Statute of the ICJ to which only States can be party. To prosecute individuals alleged to have committed crimes, the domestic courts of a State or an International War Crimes Tribunal is needed. See T. Franck The Empowered Self (Oxford: Oxford University Press 1999) at chapter 8 and Y. Dinstein "International Criminal Law" (1975) 5 Israel Y E Hum Rts 55. ' T e e D. Held "The Changing Contours of Political Community: Rethinking Democracy in the Context of Globalization" in B. Holden (ed) Global Democracy: Key Debates (New York and London: Routledge 2000) at p. 25.
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the former Yugo~lavia.'~ The ICTR is to adjudicate genocide, crimes against humanity and violations of Article 3 common to the Geneva Conventions and of the Second Additional Protocol allegedly perpetrated in Rwanda, or in the territory of neighbowing states, if committed on Rwandan citizens between 1 January and 3 1 December 1994.'8 Torture can be covered by all of these provisions to varying degrees.'? Both tribunals have to apply relevant and well-established law, including customary international law, in interpreting these Articles in its case law.20 4.1. Beginnings: Public OfJlcial Znvolvement Behind every one of these cases invariably lies human tragedy and real life horrors of individual^.^' The unpicking of the legal meaning of torture at customary international law, perhaps not surprisingly then, arises frequently. As already mentioned, the first point of reference in defining torture is usually the definition provided in Article 1 of UNCAT.22This is indeed how the ad hoc tribunals began their jurisprudence in this area. In the leading case from the ICTR, Prosecutor v Akayesu, 2 September 1998, the UNCAT definition was used to provide the relevant definition of torture for the purposes of interpreting the tribunal's Stat~te.~' In Prosecutor v Delalic et al, 16 November 1998,2"he trial chamber of the ICTY endorsed the approach taken in Akayesu. The ICTY examined the issue in more detail looking first to its own Statute and the Geneva Conventions. Finding no definition or elaboration of torture given there, it sought to find a definition of torture in customary international law.25To do this, it looked to the jurisprudence of the ECtHR for guidance and went systematically through the international instruments prohibiting tort ~ r e From . ~ ~ these, it found definitions in three: the Declaration on Torture 1975 Article 1, UNCATArticle 1 and the Inter-American Torture Convention 1985. It concluded that "[ilt may . . . be said that the definition of torture contained in [UNCAT] includes the definitions contained in both the Declaration on Torture and the InterAmerican Convention and thus reflects a consensus which the Trial Chamber considers to be representative of customary international law."27
Scc Statutc citations supra notc 1. Ibid. lY For cxamplc, torture can be a grave breach of thc Geneva Conventions, a war cnme and or a crime against humanity. 2" As specifically stated in the Secretary-General's Rcport at p. 9 and in the numerous judgmcnts from both tribunals. Z' There are many books written on the human tragedies of these conflicts. See for cxamplc, S. Drakulic They would never hurt afly: War criminals on trial in the Hague (London: Viking Pcnguin 2004); L. Silber and A. Little The Death of Yugo.slavia (London: Penguin 1996); F. Kcane Season of Blood: Rwandan Journey (London: Pcnguin 1996). " Supra notc 7 . ' W o s e c u l o r v Jean-Paul Akuyesu, 2 September 1998, ICTR-9U-T at paragraph 593 and 594. 24 Prosecutor v Delalic, Mucic, Delic and Landzo, 16 November 1998, IT-9C21-T. 2' Ibid. at paragraph 44 1. Z6 Supra notc 24 at paragraph 452. '' Supra note 24 at paragraph 459. " 'R
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The tribunal in Delalic, like that in Akayesu, set out the elements of torture required for the purposes of applying the relevant articles of its own Statute as follows: (i) there must be an act or omission that causes severe pain or suffering, whether mental or physical, (ii) which is inflicted intentionally, (iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind, (iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official So far, the same as the UNCAT definition. Thus both tribunals initially stressed the unity between the approach to torture in human rights law and international criminal law.29In particular, the requirement of public official involvement in the acts or omissions was retained. But were they accurately reflecting the role of international law in protecting the individual in doing so? 4.2. The Pivot The ICTY's statute, international humanitarian law and international criminal law, continued to be interpreted in this way, that is, in accordance with the human rights' definition in UNCAT, in Prosecutor v Furundzija heard before the trial chamber on 10 December 1998.30However, reference was also made to some additional elements. This pivotal turning point in the case law shows the tribunal's reasoning move from an international human rights to international criminal law definition of torture, if only in a few sentences, and only very slightly. As before, the trial chamber turned to international human rights law to determine the definition of torture under customary international law. Additionally, it sought to identify and spell out some specific elements pertaining to torture in relation to armed conflicts. The tribunal's understanding of international human rights law prohibitions on torture meant that states had an obligation toprohibit andpunish torture, as well as refrain from engaging in it through its officials. Although the trial chamber took the torture definition from the UNCAT definition as had happened in Akayesu and Delalic, it also drew attention to the fact that Article 1 of UNCAT explicitly provides that the definition contained therein is "for the purposes of this C~nvention."~' "It thus seems to limit the purport and contents of that definition to the Convention solely. An extra-conventional effect may however be
Supra note 24 at paragraph 494, set out in a slightly different form but substantively the same in Akayesu, supra note 23 at paragraph 594. This is identical to thc UNCATArticle 1 definition. 29 See M. Evans 2002 and 2004, supra note 3 at pp. 376-377 and p. l49ff respectively. lo Prosecutor v Anton Furundzija 10 December 1998 ICTY-95- 1711-T10. I' Supra note 30 at paragraph 160. See also paragraph 159.
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produced to the extent that the definition at issue codifies, or contributes to, developing or crystallising customary international law."32 In its attempt to identify or spell out some specific elements that pertain to torture under international criminal law in armed conflicts, it defined torture as in Akayesu and Delalic (and therefore Article 1 of UNCAT), but with the additional inclusion of humiliation as one of torture's purposes; in the context of an armed conflict and a slight change in the state official requirement wording to: at least one of the persons involved in the torture proccss must be a public official or must at any rate act in a non-private capacity: e.g. as a dc facto organ of a state or any other authority-wielding entity.
Whilst Furundzija provides the pivot for the shift from human rights and state responsibility to criminal and individual responsibility, it is in the later case of Prosecutor v Kunarac, Kovac and Vukovic, of 22 February 2001, where the clearest, and most in depth, expression of the tribunal's reasoning in this area can be found.33 4.3. A new definition: Kunarac
The tribunal in Prosecutor v Kunarac et a1 noted that on many occasions it had recourse to instruments and practices developed in international human rights law, given the "paucity of precedent" in international humanitarian law. The resemblance between the two areas of law, in terms of goals, values and terminology, was noted. Indeed, the tribunal even went so far as to say that, with regard to certain of its aspects, international humanitarian law has fused with international human rights law. Further, recourse to human rights law was welcomed and of assistance in determining the content of customary international law in the field of international humanitarian law.34 However, note the phrase "with regard to certain of its aspects" - quite clearly not all. The tribunal continued to explain that the absence of an express definition of torture under international humanitarian law does not mean that this body of law should be ignored altogether. In particular, when referring to definitions in the context of human rights law, the trial chamber pointed out that consideration must be given to what they described as the two crucial structural dgferences between these bodies of law.35 It is worth examining the tribunal's analysis of these structural differences in some detail as it provides ample evidence of an understanding of the individual now protected, and correspondingly, accountable, under customary international law.
State Actor The tribunal in Kunarac explicitly highlighted that the role and position of the state as an actor is "completely different" in human rights and international humanitarian law.
3' ?' 34
"
Supra note 30 at paragraph 160. Prosecutor v Kunarac et al. 22 Fcb 2001 IT-96-23-T and IT-96-2311-T. Supra note 33 at paragraph 467. Supra note 33 all at paragraph 470.
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Human rights law was stated to be essentially born out of the abuses of the state over its citizens and out of the need to protect the latter from state-organised or statesponsored violence. In contrast, humanitarian law aims at placing restraints on the conduct of warfare so as to diminish its effects on the victims of the hostilities. In human rights law, the state is the ultimate guarantor of the (individual's) rights which it (the state) has to protect. It has both duties and a responsibility for the observance of those rights. If the state violates those rights or fails in its responsibility to protect the rights, it can be called to account and asked to take appropriate measures to put an end to the infringements. In international humanitarian law, and in particular in the context of international prosecutions, the role of the state is, when it comes to accountability, peripheral. Individual criminal responsibility for violations of international humanitarian law does not depend on the participation of the state and, conversely, its participation in the commission of the offence is not a defence to the perpetrator. International humanitarian law purports to apply equally to, and expressly bind, all parties to the armed conflict. In contrast, human rights law generally applies to only one party: that is, the state involved and its agents.
Non-State Actor In contrast, that part of international criminal law applied by the tribunal is a penal law regime. It sets one party - the prosecutor - against another - the defendant. In the field of human rights, the respondent is the state. Structurally,this has been expressed by the fact that human rights law establishes lists of protected rights whereas international criminal law establishes lists of offences. The trial chamber expressed its caution in not embracing too quickly and too easily concepts and notions developed in a different legal context. Notions developed in the field of human rights can be transposed into international humanitarian law only if they take into consideration the specificities of the latter body of law. Set in this context, the tribunal highlighted that UNCAT makes it "abundantly" clear that its definition of torture is limited in scope and was meant to apply only for the purposes of this Convention. Additionally, Art l(2) of UNCAT states that the Article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. If the individual is given broader protection, he or she shall be entitled to benefit from it. And so the tribunal conducted a thorough search for a definition not only in UNCAT but in the 1975 Declaration on Torture, the Inter-American Torture Convention, the UN Declaration on Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights (ECHR).36 Whilst noting that it is a general requirement that the state or one of its officials take part under the ECHR, because it is clearly addressed to member states not to individuals, even so, the ECtHR's jurisprudence has held that Article 3 may also apply in situations where organs or agents of the state are not involved. The tribunal also noted that the Human Rights Committee has held that the protection is not limited to acts '"upra
note 33 at paragraph 474 478 and 480.
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committed by, or at the instigation of, public officials but also possessed horizontal effects. Accordingly, through this reasoning process, the trial chamber came to the view that the definition of torture contained in UNCAT cannot be regarded as the definition of
torture under customary international law. The UNCAT definition was meant to apply at inter-state level, directed at states' obligations and to apply only in its own context when there was no wider protection elsewhere. For ICTY purposes, such a definition of torture serves only as an interpretational aid." The contentious elements of the definition of torture under customary international law were stated to be: the list of purposes regarded as illegitimate (those definitely covered are obtaining information or confessions; punishing, intimidating or coercing the victim or a third person; discriminating against the victim or third person). the necessity, if any, for armed conflict (this depends on the classification of the offence as a grave breach, war crime or crime against humanity). the requirement, if any, of public official infliction or instigation. Most importantly for the purpose of the analysis here, the trial chamber noted that, as regards the public official element, it had to identify those elements of the definition of torture under human rights law which are extraneous to international criminal law, as well as those present in international criminal law but possibly absent from the human rights regime. To this end, a clear distinction was drawn between provisions addressed to states and their agents, and provisions which are addressed to individuals. Violations of the former result exclusively in the responsibility of the state to take the necessary steps to redress or make reparation for the negative consequences of the criminal actions of its agents. On the other hand, violations of the second set of provisions may incur individual criminal responsibility regardless of the individual's official status. While human rights are almost exclusively of the first sort, humanitarian provisions can be both or mixed in nature.38 The perpetrator will be individually criminally responsible for violations of the relevant articles of the tribunal's Statute. Articles 1-7 of that Statute make it clear that the identity and official status of the perpetrator is irrelevant insofar as it relates to accountability. There is no privilege under international criminal law which would shield state representatives or agents from the reach of their resp~nsibility.~~ In this context, the state's participation becomes secondary and peripheral. W2th or without the state S involvement, the crime remains of the same nature and bears the same consequences. The involvement of the state may trigger more risk or different rules but it does not modify or limit the guilt or responsibility of the individual who camed out the crimes in question. The characteristic trait of the offence is found in the nature of the act committed rather than in the status of the person who committed it.40
37 '8 39
40
Supra note 33 at paragraph 482. Supra note 33 at paragraph 489. Supra note 33 at paragraph 494. Supra notc 33 at paragraph 495, rcfcmng also to thc ICC's statutc whcrc thcrc is no rcquircmcnt for
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In conclusion, the tribunal found that: the dcfinition of torturc under intemational humanitarian law docs not comprise the same elements as the definition of torture generally applied undcr human rights law. In particular, the Trial Chamber is of the view that thc presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offencc to be regardcd as torture under internat~onalhumanitarian law. (at paragraph 496)
On this basis, the elements of torture in intemational humanitarian law under customary intemational law are: (i) the infliction by act or omission of severe pain or suffering physical or mental (ii) it must be intentional (iii) the act or omission must aim at obtaining information or a confession or at punishing, intimidating or coercing the victim or a third person or at discriminating on any ground against the victim or a third person. This clear contrast shown in the tribunal's understanding of the role of human rights with that of international criminal law is striking. International criminal law is explicitly concerned with individual protection and individual accountability, regardless of the individual's status and role in state organs. As clearly articulated by the trial chamber in Kunarac, the traditional view of human rights law is to prevent abuses by the state on the individual. Human rights law is viewed as some sort of protector for the individual from state invasion or interference. It is often interpreted as a brand of law that guards the rights individuals inherently possess, by virtue of being human. On this view, human rights law must necessarily involve some sort ofbalancing exercise with others' rights, inevitably entailing conflicts, particularly between the individual and what the state can do or must not do to him or her. Is the best interpretation of human rights law that it protects the individual from the state? As Evans has noted, the general position on state responsibility for the human right violation of torture places the sphere of action very much in the public - the sphere for state action - and fits with the traditional public-private divide, guarding the boundary between the State and the individual. As such, a violation of human rights law will be found if that "boundary" has not been re~pected.~'
state official involvement as an clement in torturc. On appeal, this was confirmed - see the Kunarac Appeal Judgmcnt, 12 June 2002, IT-96-23 and IT-962311-A, at paragraph 148. 4 1 M. Evans 2004, supra note 3 at p. 149. This traditional split in liberal theory is criticised from many quarters. For example, feminists have pointed to the gendcred, hierarchical nature of the division between the public and the privatc which works to women's disadvantage. This analysis is beyond the scope of this article but scc, for example, K. O'Donovan Sexual Divisions in the Law (London: Weidenfeld & Nicholson 1985); N. Lacey Unspeakahle Subjects: feminist essays in legal and social theory (Oxford: Hart Publishing 1998); C. Pateman "Fcminist Critiqucs ofthe PubliciPrivate Dichotomy" in A. Phillips (ed) Feminism and Equality (Oxford: Basil lack well 1987). In the context of international law, see H. Charlesworth and C. Chinkin The Boundaries of'lnternational Law: a feminist analysis (Manchester: Manchester University Press 2000); C. Romany "State Rcsponsibility goes private: a Feminist Critique of thc Public/Privatc Distinction in International Human Rights Law" in R. J. Cook (ed) Human Rights of Women (Philadelphia: University of Pennsylvania Press 1994).
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It is increasingly evident in human rights law that states can be held responsible for actions of individuals and actions between individuals (horizontal effect). This finding will be made if the state fails to regulate behaviour that has deprived one of these individuals, or a particular category of individuals, of an essential aspect of a right which
it is obliged to secure and ensure. Torture, as well as inhuman and degrading treatment, is one such category of b e h a ~ i o u rThis . ~ ~ is clearly much more encompassing than the trial chamber's representation of human rights law in Kunarac as protecting the individual from state violence. However, it remains the position that even though states may have obligations under human rights law to take action against perpetrators to prevent abuse and to punish them, once they have fulfilled these obligations, the state no longer has legal responsibility for these actions. Responsibility remains at international criminal law on anyperson involved if they are found to have violated any of the stated offences.
4.4. The definition confirmed The tribunal's approach in Kunarac was subsequently confirmed in Prosecutor v Kvocka, Kos, Radic, Zigic and PrcaP3 where it was decided that "the state actor requirement imposed by international human rights law is inconsistent with the application of individual criminal responsibility for international crimes found in international humanitarian law and international criminal law." Noting that Kunarac departed from the earlier cases and that it was persuasive before them in Kvocka, accordingly, it defined torture in the way set out in Kunara~.~" Further confirmation of the Kunarac definition has been provided by the tribunal on numerous occasions." For example, in Prosecutor v Krnojelac, 15 March 2002, when relying on the human rights law relating to torture, the trial chamber again highlighted the fact that it must take into account the structural differences which exist between that body of law and international humanitarian law. In particular, consideration must be given to the distinct role and hnction attributed to states and individuals in each regime.46However, this does not preclude recourse to human rights law in respect of those aspects which are common to both regimes. In that respect, the trial chamber
42 Analysis of this aspect of torturc is beyond thc scope of this articlc. Scc further, M. Evans 2002 and 2004, supra notc 3; C. dc Than and E. Shorts, supra notc 3. 4 3 Prosecutor v Kvocka, 2 Nov 200 1, IT-98-3011-T. 44 Ibid. at paragraphs 138 and 139. 45 In Prosecutor v M. Krnojelac, 15 March 2002, IT-97-25-T, at paragraph 187; Prosecutor v Naletilic and Martinovic, 31 March 2003, IT-98-34-T, at paragraph 497; Prosecutor v B. Simic ef al., 17 Oct 2003, IT-95-9-T, at paragraph 82; Prosecutor v Brdanin, 1 Scpt 2004, IT-99-3CT at paragraph 488. In Brdanin, the trial chamber noted that the definition in UNCAT relics on the notion ofhuman rights which is largely built on the premise that human rights are violated by states or govcmmcnts. It continucd that, for thc purposes of international criminal law which deals with the criminal responsibility of an individual, the trial chamber agrecd with and followed the approach of the Kunarac trial chamber: a position, it noted, confirmed in the ICC's statute. 4Vrnojelac, ibid., at paragraph 18 1.
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found the ECtHR's general reasoning and criteria compelling in assessing the gravity of the act of torture as well as its relationship with other less serious offence^.^'
5. Conclusion
Individual persons commit crimes. The underlying message from criminal law, including international criminal law, is that these individuals have some sort of free will, control and autonomy over their own actions and omissions and, on the basis of this, they make informed choices. As a result, they have to take responsibility for those choices when crimes are committed. They cannot, for example, blame the state. Indeed, under command responsibility, such individuals can be found responsible for the actions of their subordinates too.4R In the context of international criminal law this seems plausible and coherent. Individuals may have been formed and developed in the context of environments which could be said to restrict their choices, or even make "choice" seem meaningless. Yet international criminal law holds such individuals to account for their actions. Also, it is in accordance with views that the "international community cannot any longer allow claims and complaints of victims to be "filtered" through state channels and machinery"49but instead, it needs to place power in the individual's own hands. In depth analysis of the position of human rights law developments in this area is beyond the scope of this article. However, it has been said that: "we are increasingly being asked to examine all aspects of our public and private lives from the human rights perspective and it is the state that is being held to account for the failures of us a11."50As mentioned earlier, state failure to regulate individual behaviour can give rise to violations by those states of human rights law. This raises the huge topic of who should be responsible for an individual's actions. If the individual is responsible for his or her behaviour under international criminal law, is the state, under human rights law, increasingly seen to be responsible for that individual's behaviour?
47 In this case, the purpose to "humiliate" the victim, mentioned in Furundz& and in Kvocka again came to the fore. It is not explicitly dealt with by any of the principal international instruments prohibiting torture, nor is there a clear jurisprndential disposition towards its recognition as an illegitimate purpose. The trial chamber noted that there may be a tendency, particularly in human rights law towards the enlargement of the list of prohibited purposes but it stated that it must apply customary international humanitarian law which appl~edat the time the crimes charged were alleged to have been committed. " See P.V. Sellers, supra note 2 for analysis of this in the context of gendered violence. " A Cassese, supra note 1 at p. 450. See also R. McCorquodale "The Individual and the International Legal System" in M. Evans (ed) International Law (Oxford: Oxford University Press 2003). In a gendered context see J. Marshall Humanity Freedom and Feminism (Aldershot: Ashgate 2005). 50 M. Evans 2004, supra note 3 at p. 159.
Responsibility Beyond Borders: State Responsibility for ExtraterritorialViolations by Corporations of International Human Rights Law Robert McCorquodale and Penelope Simons* States routinely provide support and assistance to their corporate nationals in their global trade and investment ventures. While states may not intend to allow corporate nationals to violate human rights in their extraterritorial operations, by their actions or omissions, states may facilitate, or otherwise contribute to, a situation in which such violations by a corporation occur.This article investigates the extent to which the extraterritorial activities of transnational corporations (TNCs) that violatc intcrnational human rights law can givc risc to homc statc rcsponsibility. Thc analysis shows that home states of TNCs have obligations under international law in certain situations to regulate the extraterritorial activities of corporate nationals or the latter's foreign subsidiaries and can incur international responsibility where they fail to do so.
INTRODUCTION
[The British] Foreign Office isn't i n the business o f passing judgment o n t h e safety o f non-indigcnous drugs, is it? [It is] supposcd t o b c grcasing thc whccls o f British industry, n o t g o i n g around telling everybody that a British company i n Africa is poisoning its customers.'
In h i s
novel,
The Comtant Gardener, John Le Carr6 describes vividly the role of a
government knowingly allowing its c o r p o r a t i o n s to violate h u m a n r i g h t s in a n o t h e r state because t h e government's m a i n c o n c e r n is t o assist its corporations to make money. Thls is a powerful a r g u m e n t from s o m e o n e who worked for many years as a diplomat.' I n fact, m o s t of t h e g o v e r n m e n t s of industrialised states explicitly or implicitly acknowledge that one of their key foreign relations priorities is to assist their own corporations to 'win contracts in foreign m a r k e t s a n d lobby against regulatory and political barriers' in o t h e r state^.^ T h i s d o e s not m e a n t h a t a state i n t e n d s to a l l o w 'Robert McCorquodale is Professor of International Law and Human Rights at the School of Law, University of Nottingham, UK and Penelope Siinons is an Associate Professor at the Faculty of Law, University of Ottawa, Canada.We thank those who have provided us with help and advice during the writing of this article, especially Robert Cryer and Sarah Joseph. We are also indebted to the anonyn~ousreviewers ofthis article for their helpful comments and suggestions.
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1 I. Le Carr6. The Conctant Gardew (London: Hodder and Stouehton. 2001), 497 (it is also a film with the same name, released in 2005). 2 John Lc Carrf notcs that thc rcality is worsc than what hc dcscribcs in his book: ibid 568. 3 UK Foreign and Commonwealth Office,'Strategic International Policy Priorities for the UK' in UK International Priorities: A Stratcgy for thc FCO (Dcccmbcr 2003), scction 4, scc http:// www.fco.gov.uk/Files/kfile/FCOStrategyFullFinal,O.pdf (last visited 5 March 2007). Similar statements have been made by, for examplt; the Australian government (Advancing the National ~
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corporations to act in another state in a way that violates human rights. Nevertheless, a state, by its actions or omissions, may facilitate, or otherwise contribute to, a situation in which such violations by a corporation occur. As will be shown, this facilitation may range from the provision of financing and other services by export credit agencies to the negotiation and ratification of bilateral investment agreements that assist extraterritorial investment by corporate nationals. It also includes the failure by a state to prevent actions by its corporate nationals (including privatized state corporations) that violate human rights, both within and outside its temtory. The growth of transnational corporations ( T N C S )operating ~ across more than one state, has raised questions about how international law would deal with these entities. This is partly because the distribution of power and control of TNCs are arranged in ways that defy territorial boundaries, with a'parent' corporation being a 'national' in one state and its various subsidiaries being 'national< in those states where they operate.5Despite the wealth of docunlents, reports and academic literature that have suggested that corporations should have direct international legal liability for such violations, there is - as yet - no international human rights law to this effect.' This is due to the fact that international human rights law has developed to protect individuals from oppressive and abusive actions of the state. It thus imposes the legal obligations to protect human rights on states alone, and has not yet developed so as to regulate effectively the activities of corporations, or other non-state actors, which violate human rights in their extraterritorial operations.7 There are clear human rights legal obligations on a state to place an effective restraint on activities within its territory that violate human rights8 However, the reality is that for many states, particularly non-industrialised states, the economic power of aTNC operating within that state (the 'host state') is such that
4 5 6
7
8
Interest White Papn; 2005 at http://www.dfat.gov.au/ani/fo~word.htrnl (last visited 5 March 2007); the United States of America government (Strategic Planjw Fiscal Years 2004-2009 (2004) at http://www.state.gov/s/d/rm/rls/dosst~ (last visited 5 March 2007); and the Canadian Government (Opening the D o m to the World; Canadd Matket Accm Friotities 2006, at hq://www.intemational. gc.ca/tna-naclcimap-enasp)(last visited 5 March 2007). There is no common definition of TNCs (or even the acceptance of the use of that term) -see the discussion in R. McCorquodale with R. Fairbrother, 'Human Rights and Global Business' in S. Bottomley and D. Kinley (eds), Commercial Law and Human Rights (Aldershot: Ashgate, 2002). F. A. Mann,'Thc Doctrinc of Intcmational Jurisdiction Rcvisitcd Aftcr TwcntyYcars' in Collected Courses ofthe Hague Academy oflntmtional Law (Dordrecht: Martinus NijhoK 1985) 56. There is a considerable body of literature on this area: a few examples are: Norms on the Responsibilities of%nsnationa~ Corporations and Other Business Enterprises with Re,,ard to Human Rights, (2003) U N Doc E/CN.4/Sub.2/2003/12/Rev.2and Commentary on the Norms on the Responsibilities ofpansnational corporations and Other Business Enletprices with Regard to Human Rights, (2003) U N Doc E/ CN.4/Sub.2/2003/38/Kev.2; OECD, 'The OECD Guidelines for Multinational Enterprises', O E C D Derlamtion and Decisions on International Investment and Multinational Enterprises: Basic Z x t s (DAFFEIIME, 2000); A. Clapham, Human Rights Obligations ofNon-State Actors (Oxford: OUP, 2006); l? Alston (ed), Non-StateActors and Human Rights (Oxford: OUP, 2005); and S. Kees and S. Wright (eds), Human Rightr, Corporate Responsibility: A Dialogue (Sidney: Pluto Press, 2000). Note that the position may be different within international hun~anitarianlaw and international criminal law. For a discussion of this, scc R. McCorquodalc and R. La Forgia,'Taking Offthc Blindfolds:Torture by Non-State Actors' (2001) 1 Human Rights Law Review 189. See, for example, the terms of Article 2 of both the International Covenant on Economic, Social and Cultural Kights 1966 and the International Covenant on Civil and Political Rights 1966.
Non-State Actors and International Law Responsibility Beyond Borders
the host state may be unable or unwilling to control effectively the activities of that corporation^ or the host state may be prevented from doing so by other international treaty obligations, such as bilateral investment agreements. This means that, while the host state undoubtedly will be in breach of its human rights obligations if it does not act to prevent these human rights violations occurring, theTNC will remain unaccountable and unrestrained, and those whose rights are violated will be without an effective remedy. In contrast, the state where the headquarters of theTNC is incorporated or otherwise has its main centre of operations (the 'home state'), is usually an industrialised state,"' with the resources, power and legal interests to regulate in relation to the extraterritorial activities of the relevant corporation, if it chooses to do so." Few studies have explored in detail the extent to which the extraterritorial activities of TNCs that violate international human rights law can give rise to This article aims to demonstrate that these states have home state resp~nsibility.'~ significant international obligations under international human rights law in relation to some of the extraterritorial violations of human rights by their corporate nationals. A clarification of the law in this area may provide an incentive for home
9 See M. Ssenyonjo,'Non-State Actors and Economic, Social and Cultural Rights' in M. Baderin and R . McCorquodalc (cds),Economic, Social and Cultural Rights in Action (Oxford: OUP, 2007) 109 at 121-122, who notes that 'states where protection of human rights against violations by [nonstate actors] is most needed are often those least able to enforce them against [non-state actors] such as international financial institutions and TNCs - thc main driving agcnts of thc global economy, exercising control over global trade, investment and technology transfers - who possess much desired investment capital or technology'. 10 According to UNCTAD, the 100 largest non-financial TNCs account for 'l2%, 18% and 14% respectively, of the estimated foreign assets, sales and employment of all TNCs in the world'. 71 of those 100 are geographically concentrated in a few industrialised states (US, France, Germany, Japan and the UK), 50 of which are headquartered in the EU and only four in non-industrialised states. The largest TNC headquartered in a non-industrialised state is based in Hong Kong and is ranked sixteenth. In 2005,'the five largest TNCs accounted for almost half of the total foreign assets of the top 50 [TNCs]'. UNCTAD Wddlnvestment Report 2005: 7iknsnatioml Corporations and the Intmatiomlization 4 R G . D (New York and Geneva: United Nations, 2006) 15-17. 11 See C. Duflield, 'Multilateral Corporations and Workers' Kights' in S. Kees and S. Wright, n 6 above, 193. 12 N. J'agers, CorporateHuman R k h b Obliptions: In Search ofAccountability (Antwerp: Intersentia, 2002) indicates that '[tlhe law of state responsibility offers an interesting, yet under utihsed tool for addressing human rights violations resulting from corporate activities' (175). See also M. Sornarajah,'Linking State Responsibility for Certain Harms Caused by Corporate Nationals Abroad to Civil Recourse in the Legal Systems of Home States' in C. Scott (ed),TortuwasTort (Oxford: Hart, 2001). 491-512 and 0.Dc Schuttcr,'Thc Accountability of Multinationals for Human RightsViolations in European Law' in Alston (ed),n 6 above. Some commentators have examined the possibility ofhome state regulation as a means of addressing the problem of corporate accountability for cxtratcrritorial activity without examining thc qucstion ofa lcgal obligation to rcgulatc (scc S. Deva, 'Acting Extraterritorially to Tame Multinational Corporations for Human Kights Violations: Who Should "Bell the Cat"? (2004) 5 Melbourne JIL 37. and S. Deva, 'Human Rights Violations by Multinational Corporations and International Law: Where from Here? (2003) 19 ConnecticutJlL 1) or have not examined in detail state responsibility in relation to extraterritorial acts of corporate nationals (see D. Chirwa, 'The Doctrine of State Responsibility as a Potential Means of Holding Private Actors Accountable for Human Rights' (2004) 5 Melbourne JIL I), or have considered that approaching human rights issues through state responsibility would be an inadequate means to address accountability of corporations for these violations (S. Ratner, 'Corporations and Human Kights: ATheory of Legal Responsibility' (2001) 111Yale LJ 443).
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states to regulate corporate extraterritorial activities that violate human rights. It may also help to develop political will within the United Nations (UN) or other international fora for the development of an international legal framework of accountability for these corporation^.'^ Such a development would assist all states in complying with their international human rights legal obligations and enable the better protection of human rights of all people.
STATE RESPONSIBILITY AND INTERNATIONAL HUMAN RIGHTS LAW
Under customary international law a state will incur international responsibility for a breach of an international legal obligation, where the act in question can be attributed to the state.14This has been codified by the International Law Commission (ILC) in its Articles on the Responsibility of States for Internationally Wrongful Acts.15 Under these rules, a state is responsible for the actions and omissions of its executive, legislative,judicial and other state organs and officials, including police, military, immigration and similar officials." This is the position even where those actions are committed outside the scope of the state official's or organ's apparent authority.17 So if an act or omission can be attributed to a state and there has been a breach of an international legal obligation (under a treaty or customary international law) by that act or omission, then the state is responsible under international law. It is generally accepted that these rules are applicable to international human rights law? This is made clear in the ILCS Articles and Commen13 See for example, A. Reinisch, 'The Changing International Legal Framework for dealing with Non-State Actors' in Alston (ed), n 6, above, 37-89.81. Reinisch argues that the jurisprudence of European Court of Human Rights, which imposes indirect or vicarious liability on member states for the acts of non-state actors to whom they have delegated state tasks, gives the former a direct interest in regulating such non-state actors. 14 See, for example, C a i Claim ~ (France v Mexico) (1929) 5 RIAA 516. 15 International Law Commission, Articles on the Responsibility ofstatesfw Internationally Wrongful Acts, Report of the International Law Commission on the Work of its 53rd session, A/56/10, August 2001, U N GAOR. 56th Scss Supp No 10, U N Doc A/56/10(SUPP) (2001) (ILC Articlcs). Not all the ILC Articles can be considered to be customary international law, though most of them including those relevant to this article- have been adopted by international tribunals as reflective of customary international law: see H. Duffy, 'Towards Global Responsibility for Human Rights Protection: A Sketch of International Developments' (2006) 15 InterightsBulletin 104. Note that the rules set out in the Articles are considered by the ILC to be secondary rules of international law: seeJ. Crawford, The International Law Commission's Articles on State Responsibility: Introhction, Z x t and Commentaries (Cambridge: CUP, 2002) (ILC Commentaries) 74 [I]. 16 ILC Articlcs, Articlc 4. Scc also Immunity ofspecial Rapporteur oftbe Commission on Human Righb, ICJ Keports 1999, at [62], where it is stated that this represents a rule of customary international law. 17 &ire Claim n 14 above. 18 Cf A. Clapham, n 6 above, 318, See also the critiques of R. Pisillo Mazzeschi,'The Marginal Role of the Individual in the ILC's Articles on State Responsibility' (2004) 14 Italian YBIL 39, 47; D. BodanskyJ. R. Crook and E. Brown Weiss,'Invoking State Responsibility in theTwenty-First Century' (2002) 96 AJIL 798,809; and H. Charlesworth and C. Chinkin, Tbe Boundaries 4Intrrnational Law: A Feminist Analysis (Manchester: Manchester University Press, 2000) 148.
Nun-State Actors and International Law Responsibility Beyond Borders
taries.19 Indeed, the human rights treaty bodies have applied the general law of state responsibility to key aspects of human rights matters before them, both explicitly and, more often, implicitly2'
EXTRATERRITORIALOBLIGATIONS OF STATES UNDER INTERNATIONAL HUMAN RIGHTS LAW State obligations under international human rights law are not temtorially confined.The major international human rights treaties expressly extend state obligations both to individuals within a state's temtory and to those individuals who are subject to a state's j u r i s d i c t i ~ n .In ~ ~distinguishmg territory from jurisdiction, the Inter-American Commission on Human Rights, has stated: that the term 'jurisdiction' in the sense of Article l(1)is [not] limited to o r merely coextensive with national territory. Rather, the Commission is of the view that a state party to the American Convention may be responsible under certain circumstances for the acts and omissions of its agents which produce effects or are undertaken outside that statc's
19 ILC Commentaries n 15 above, 76 and its references to human rights cases, for example, 135-140 and 145-146. See also B. Simma and D. Pulkowski, 'Of Planets and the Universe: Self-contained Regimes in Intemational Law' (2006) 17 EJIL 488 at 525. 20 For example, the Inter-American Court of Human Rights held in Awas Tirgni v Nicaragua, I-ACtHR, I H R R (2001) [153]: '[alccording to the rules of law pertaining to the international responsibility of the State and applicable under Intemational Human Rights Law, actions or omissions by any public authority, whatever its hierarchic position, are chargeable to the State which is responsible under the terms set forth in the American Convention [on Human Rights]'. 21 R. Lawson,'Out of Control. State Responsibility and Human Rights: Will the ILC's Definition of the Act of State' Meet the Challenges of the 21st Century? in M. Castermans, F. van Hoof and J. Smith (eds),The Role ofthe Nation-State in the 2lst G,ntury,115, who notes that 'the European Coua of Human Rights has consistently applied the principles articulated in the ILC Draft Articles on State Responsibility,without, however, referring expressly to the Draft Articles'. See alsoJiers, n 12 above, 146. It should be noted, however, that in the development ofjurisprudence in this area the treaty bodies have not always distinguished clearly between the conceptsofattribution, the scope of a state's obligations and state responsibility: J. Cerone,'Out of Bounds? Considering the Reach of Intemational Human Rights Law' Center for Human Rights and Global Justice Working Paper Number 5,2006, NewYork School of Law, 26 at http://www.nyuhr.org/researchpublications.html (last visited 5 March 2007). 22 For example, see the American Convention on Human Rights 1969 (ACHR), Article l(1) and the European Convention on Human Rights 1950 (ECHR), Article 1.The lCESCR and the African Chartcr of Human and Pcoplcs' Rights (ACHPR) havc no such cxprcss jurisdictional clausc, though it is assumed that they would also apply to a state's jurisdiction: see the Committee on Economic Social and Cultural Rights (CESCR) General Comment No 8, The Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, U N Doc E/C.12/19')7/8,12 December 1997 at [7]. 23 Saldafiov Argentina (Report no 38/99) Inter-American Commission on Human Rights (11 March 1999) at [17]. The Conlmission has made it dear that this applies in relation to the application of both the ACHR and the American Declaration of the Rights and Duties of Man (American Declaration) - see Coanl et a1 v United States (Report no 109199) Inter-American Commission on Human Kights (29 September 1999) at 1371.
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Robert McCorquodale and Penelope Simons The European Court of Human Rights24 and the Human Rights Committee (HRC)25have made similar statements. This concept of jurisdiction gives rise to potential extraterritorial human rights legal obligationsfor a state ifjurisdiction can be established. Accordingly, states have been found by the H R C to have violated the International Covenant on Civil and Political Rights (ICCPR), and thus internationallyresponsible, wherea state'ssecurity forces capture, detain and torture aperson outside that state'sterritory,26and where the state confiscates its own national's passport at one of its consulates in another state.27 The H R C has also taken the position that Israel has obligations under the ICCPR in relation to individuals within its Occupied Territoriesz8and that Belgium has such obligations in relation to its forces operatmg as UN peacekeepers in SomahazyThis principle has been reiterated in the HRC's General Comment 31, where it states that: A State party must respect and ensure the rights laid down in the Covenant to anyone within thc powcr and cffcctivc control of that Statc Party, cvcn if not situatcd within the territory of the State Party. . . regardless of the circumstances in which
such power or effective control was obtained.30 Similarly, the Inter-American Commission on Human Rights has found that, if there is an exercise of control over individuals, it may be sufficient to find that a matter is within a state's jurisdiction, whether or not there is effective control of the territory in question.31The Commission has noted that '[iln principle, the inquiry turns not on the presumed victim's nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the state observed the rights of the person subject to its authority and ~ontrol'.~' Thus, in Alejandre v Cuba,33 where Cuban agents had shot down two civilian 24 Dmzd andJanousek v France and Spain (App no 1274718) (1992)14 E H R R 745 at [91]. In addition, under the ECHR, states can choose to extend the obligations under the Convention to their colon i c ~or othcr ovcrscas tcrritorics. 25 Whilst ArticleZ(1) of the ICCPR refers to both territory and jurisdiction, the HKC has clarified that the state's obligation extends to both individuals within a state's territory as well as to those who are not within the state's territory but who are subject to its jurisdiction: HRC, General Comment No 31(80) Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/U/Rev.l/Add.l3,26 May 2004 at [3]. 26 L6pez Burgos v Uruguay (Communication No. 52/79),views 29 July 1981at [12.3]. 27 Montero v Uruguay HRC (Communication 106/81), HRC views 31July 1983. 28 Concluding Observations of HKC on Israel (1999) U N Doc CCPR/C/79/Add.93 at [lo]. 29 Concluding Obscrvations of HRC on Bclgium (1998) U N Doc CCPR/C/79/Add.97 at [14]. 30 HRC. General Comment No. 31(801 . . Nature of the General Legal Obligation - Imposed on States parties to the Covenant, n 25 above, at [lo]. 31 See K. Wilde,'Legal "Black Hole"?: Extraterritorial State Action and International Treaty Law on Civil and Political Rights' .(2005) 26 Michigan - -IIL 739, 802; and d D. Cassel, 'Extraterritorial Application of Intcr-Arncrican Human Rights Instruments' in F. Coomans and M. Kamminga (eds), Extraterritm'al Application of Human Rights T~aties(Antwerp: Intersentia, 2004) 175-181,175. However, as shown here, the decisions of the Inter-American Commission are generally consistent with the jurisprudence on this issue ofother international human rights treaty bodies, including the European Court of Human Rights. 32 Coard et a1 v United States n 23 abovc, at [37]. Scc also Detainees at Guantanamo Bay, Cuba (Precautionary Measures), Inter-American Commission on Human Rights, 41 ILM 532 (2002). 33 Alejandre v Cuba, Inter-American Commission on Human Rights, Case 11.589, report 86/99 (29 September 1999).
-
Non-State Actors and International Law Responsibility Beyond Borders aircraft over international waters killing all four pilots, the Commission found 'conclusive evidence' in the circumstances,that the victims were under the authority and hence subject to the jurisdiction, of the Cuban agents.34 The European human rights supervisory bodies have generally taken the same approach. For example, in Loizidou v Turkey the issue raised was whether Turkey could be rcsponsible under the ECHR f o r t h e illegal seizure of property by the authorities in the unrecognized Turkish Republic of Northern Cyprus (TRNC).35 The European Court of Human Rights held that the applicant fell within the jurisdiction of Turkey, which could be held responsible for the acts of the TRNC.36 The Court decided that state res~onsibditvcan arise where a state exercises effective control as a consequence of lawful or unlawful military action, and that the 'obligation to secure . . . the rights and freedoms set out in the Convention, derives from the fact of such-control whether it be exercised directly, through its armed forces, or through a subordinate local administrati~n'.~' Apart from the decision in Bankovit v which has been widely critici~ed:~subsequent jurisprudence of the Court has supported this broad concept ofjurisdiction. For example, in both b a l m v ~ r k eand ~ Issa ~ ~v ErkeX4' ) the Court found Turkey responsible under the E C H R for the extraterritorial acts of Turkish security forces (in Kenya and in Iraq respectively). Indeed, the Court stated in Issa that temporary effective overall control of only a particular area in question was
34 ibid at [25]. For a full discussion of the jurisprudence on the extraterritorial application of the American Convention and the American Declaration, see C. Cerna, 'Extraterritorial Application of the Human Rights Instruments of the Inter-American System' in F. Coomans and M. Kamminga (eds),n 31 above, 141-174. 35 The statehood of theTKNC was only recognised byTurkey, and the U N Security Council had passed binding resolutions calling on 21stat& not to.recogn,se it on the basis that k had obtained its status through thc illcgal usc of forcc byTurkcy and was bcing maintaincd byTurkish forccs UNSC Kes 541 (18 November 1983) and UNSC Kes 550 (11 May 1984). 36 Loizidou vTurkey (Merits) (App no lS18/89) (1997) 23 E H R R 513 1561. 37 Loizidou v7urkey (Preliminary Objections) (App no 15318189) (1995) 20 E H R R 99 [62]. This decision was confirmed in Cyprus vTurkey (App no 25781194) (2002) 35 E H R R 30. 38 Bankouiiv Belgium (App no 52207/99) (2002) 41 ILM 517. In that case, a claim was brought against NATO with respect to the bombing of RadioTelevision Serbia during the Kosovo intervention. Thc Court hcld that NATO forccs had insuficicnt control of thc tcrritory in qucstion for thc applicants to be considered within their jurisdiction because the Court interpreted 'jurisdiction' under the ECHR to cover only instances where there is the exerciw of territorial control (by military occupation) and where actions occurred with the consent or acquiescence of the territorial state, or if there is an incidental exercise ofjurisdiction (such as over consular staffor ships). 39 Scc, for cxamplc, A. Riith and M.Trilsch,'BatlkoviivBelgium' (2003) 97 AJIL 171,172,M. Happold, 'Bankovic v. Belgium and theTerritoria1 Scope of the European Convention on Human Rights' (2003) 3 H R L R 77 and R. Lawson,'The Concept ofJurisdiction in the European Convention on Human RightS in I?J. Slot and M. Bultcrman (cds), Globalisation andJurisdiction (Lcidcn: Kluwcr Law International, 2004) 201. One of the key grounds for criticism was that the Court in that case conflated the law on jurisdiction under general international law (which deals with entitlements to act) with the question of responsibility arising out of a breach of human rights obligations: see M. Scheinin,'Extraterritorial Effect of the International Covenant on Civil and Political Rights' F. Coomans and M. Kamminga (eds) n 31 above, 73-81,79-80. 40 calattv lurkey (App no 46221199) ECHR, 12 March 2003; reaffirmed by the Grand Chamber (2005)44 ILM 1058. 41 Issa and Others v Turkey (App no 312321196) ECHK 16 November 2004.
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Non-State Actors and International Law Robert McCorquodale and Penelope Simons
sufficient to bring individuals present in that area within the jurisdiction of the controlling stateP2 Thus, the jurisprudence of the international human rights treaty bodies makes clear that persons can be 'within the jurisdiction' of a state acting extraterritorially. A state can be found to be in violation of its obligations under international human rights treaties for actions taken by it extraterritorially,in relation to anyone within the power, effective control or authority of that state, as well as within an area over which that state exercises effective overall control." These conclusions are supported by decisions of the International Court ofJustice (ICJ). In its Advisory Opinion on the Wall it stated that Israel had obligations under the ICCPR, ICESCR and the Convention on the Rights of the Child (CRC) in relation to the occupied Palestinian territories and that the ICCPR was 'applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory'.44This position was confirmed by the ICJ in its decision in Democratic Republic ofCongo v Uganda, in finding that the ICCPR, the CRC and the African Charter on Human and Peoples' Rights (ACHPR) all applied in relation to Uganda's actions within the territory of the Democratic Republic of ~ o n ~Indeed, o . ~in~this latter case the Court went further in stating that 'international human rights instruments are applicable in respect of acts done by a state in the exercise of its jurisdiction outside its own territbry, particularly in occupied territ~ries'.~~ In reaching this conclusion, the ICJ is determining that the obligations of all states (and not only occupying powers) under all int&national human rights instruments (to which a state is a party) - and, necessarily, all human rights that are part of customary international law4' - are applicable in relation to the acts of a state outside its territory. This obligation is only limited by the phrase 'in the exercise of its iurisdiction'. which. as seen above. concerns all actions in relation to anyone within the power, effective control or authority of a state and does not d e ~ e n don the acauiescence of the territorial state. Having established that states have extraterritorial human rights obligations in certain circumstances, the question arises as to whether, and if so, in what circumstances, states have extraterritorial obligations under international human rights law in relation to the acts of corporate nationals.
42 ibid. In that case, the Coua ultimately found there was i n ~ ~ c i e evidence nt to substantiate the claim that Turkish forces were operating in the area in question: at [tl]. It also rejected the view in Bankovit that the o~erationof the ECHR was limited to the territorv of state ~artiesto the ECHR: at [74]. 43 This extraterritorial application of human rights would apply in relation to all types human rights economic, social, cultural, civil, political and collective - that a state is legally obhged to guarantee n 37 above and Dmcmtic Republic $ & g o v Uganda (see below), under a meaty: see Cyprus v 7+, where the ICI held that the ACHPR and the CRC a~olied .. extraterritoriallv,even though both indude a widc rangc of cmnormc, social and culrural right\ 44 Advisory Opinion on fhr I.efal Curncq~rmccton thc Conctrirctton ofa Wall in the Ornrpied I'alestinian7hr1tory (2604)43 ILM 1009 aF [107-1131. 45 Armed Activities on the 'lirritory of the Congo (Democratic Republic of the Congo v Uganda), (Merits) (2006) 45 ILM 271 at [217]. 46 ibid at [216]. Cerone, n 21 above, 8 notes, however, that the case 'provides very little guidance as to what constitutes an act "done by a state in exercise ofits jurisdiction"'. 47 See further below.
513
Non-State Actors and International Law Responsibility Beyond Borders STATE RESPONSIBILITY AND THE EXTRATERRITORIAL ACTS OF CORPORATE NATIONALS
The general law of state responsibility provides for the possibility of attribution to a state for the acts committed bv its corDorate nationals in violation of internat i o n a l l a w giving rise to i n t e r n a t i o n a l responsibility in t w o situations?'
First,
where a state empowers a corporation to exercise elements of public authority;49 second, where a corporation acts on the 'instructions of, or under the direction or control of', a state.50In adhtion, where the state through aiding and assisting corporate activity is complicit in the commission of an internationally wrongful act committed by another state or by the corporation itself, then the state will be internationally responsible? In all of these cases, such acts will be attributable to the state even where they are committed outside the territory of that state.
Corporations exercising elements of governmental authority
The conduct of a corporation is not primafacie attributable to a state under general international law, even where such corporation is wholly owned by the state or the state has a controlling interest in it?' Yet it has long been the case that there has been attribution to a state of the acts of private entities that are exercising public or governmental functions." Such attribution has become even more necessary with the growth in privatisation of state entities that retain some public funct i o n ~ ?Hence ~ the ILC Articles express the position as follows: The conduct of a person or entity which is not an organ of the State. . .but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular in~tance.'~ For there to be attribution to the state, the conduct by the corporation must relate to 'governmental activity and not other private or commercial activity'.5" This is
48 Though the acts of non-state actors are - in general - not attributable to a state: ILC Commentaries, n 15 above, 91 at [3]. The 1LC did expressly delete an article that would have provided that the acts of non-state actors could never be attributed to a state: N. Jagers, n 12 above, 1455. The ILC indicates that their Artides relevant to these situationsrepresent customary international law - [LC Commentariesn 15 above, 77-ID, 145-151. 49 ILC Articles ibid, Article 5, ILC Commentaries ibid, 100.There is also the possibility of a corporation exercising public authority in the 'absence or default of a state' (ILC Articles, Article 9) but this possibility is not explored here as it would be highly unlikely to arise. 50 [LC Articles ibid, Article 8. 51 ibid, Article 16. 52 ILC Commentaries n 15 above, 110[1] and 112[6]. 53 Scc thc discussions at thc Lcaguc of Nations Confcrcncc for thc Codification of International Law 1929, referred to ibid, 100-101at [4]. 54 See A. McBeth,'Privatising Human Rights: What Happens to the State's Human Rights Duties when Services are Privatised? (2004) 5 MelbourneJIL 133. 55 ILC Articles n 15 above, Article 5. 56 ILC Commentaries n 15 above, 101at [5].
514
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Robert McCorquodale and Penelope Simons consistent with the developments in the law of state immunity." Governmental authority would seem to include a wide variety of public functions, from running prisons, health and education fa~ilities;~ to private airline corporations having delegated immigration or quarantine power59and a corporation having a role in the identification of property to be expropriated by the state.60The key factor for attribution is the empowerment to exercise governmental authority and not the degree of ownership of the corporation by the state.61 The extraterritorial activities of AWB Ltd, an Australian corporation provide an example of this type of situation. AWB was a government agency - the AustralianWheat Board - with, inter~lia,the sole responsibility for the marketing and export of Australian wheat around the world and, on being privatised, it retained this power.62AWB was active in the Iraqi Oil for Food programme managed by the UN,63being the largest supplier of food to that programme.64The investigation into that programme led to, inter alia, allegations that AWB was involved in the bribing of Iraqi officials in order to sell Australian wheat, contrary to United Nations resolutions and with clear impacts on the human rights of Iraqis, such as the right to f0od.6~These allegations were found to be substantiated both by a Royal Commission and by an Australian court but without expressly deciding whether some of the actions of AWB were attributable to the Australian govemment.hhThe situation of possible attribution to a state could be the same for many other privatised government entities. Adifferent examplearisesfromtheaaivitiesofthoseExport Credit Agencies (ECAs) of industrialised states that are not government organs but are separate legal entities? 57 O n state immunity generally, see H. Fox, The Law $State lmmunity (Oxford: OUP, 2002). 58 See McBeth, n 54 above, where he notes that the primary obligation to ensure accessibility to health and education services, for example, rests with the state, even after privatisation. 59 This is an cxan~plcgivcn by thc ILC: ILC Commcntarics n 15 abovc, 100 at [2]. 60 Hyatt lnternatio~lCorporationv Iran (1985) 9 Iran-USCTR 72,88-94. 61 ILC Commcntarics n 15 abovc, 101at [3]. 62 See Wheat Marketing Act 1989 (Commonwealth of Australia). 63 The U N Oil for Food Progran~mewas established by UNSC Kes 986 (14 April 1995) U N Doc S/ RES/986. 64 It supplicd $US2.3billion of food to thc prograrnmc: scc thc Final Rcport ('Manipulation of thc Oil-for-Food Programme by the Iraqi Kegime') of the Independent Inquiry Committee into the United Nations Oil-for-Food Pmgramme, 269 at http://www.iicoffp.org/documents/IIC%20 Fina1%20Rcport%20270ct2005.pdf (last visitcd 5 March 2007). 65 The Independent Inquiry concluded that AWB provided more than 14% of illicit payments to Iraqi officials in connection with humanitarian purchase under the programme (ibid 269). 66 An Australian Royal Commission, chaired byTerence Cole, investigated these allegations (within narrow terms of reference that prevented them considering closely any attribution to the Australian government) and reported on 24 November 2006: see http://www.ag.gov.au/agd/www/ UNoilforfoodinquiry.nsf (last visited 5 March 2007). During the course of the Commission's inquiry thc Fcdcral Court of Australia (FCA) hcard a casc in rclation to documcnts rcqucstcd by the Commission from AWB: AWB Limited v Cole (No51 [2006] FCA 1234, in which the Court held that the documents 'indicate[d] clearly that AWB knew that paying inland transportation fees to Alia was a means of making payments to the Iraqi Government. This plan was concealed from the United Nation< at [225]. 67 For example, the ECAs of the UK and the US (the Export Credits Guarantee Department (ECGD) and the Export Import Bank respectively, are divisions of the government, while the ECAs of Canada and Australia, are corporations which are wholly owned by their respective governments: see 0.Can and S. L. Seck,'The Legal Obligations with Respect to Human Rights and Export Credit Agencies' ECA-Watch, Halifax Initiative Coalition and ESCK-Net, Final Discus-
Non-State Actors and international Law Responsibility Beyond Borders
since 'dofficially-supported ECAs are regulated under national laws, regulations or chartersthat givetheECAtheauthority to perfomtheir functions'!' Suchagencieshave duties to support and develop, directly and indirectly trade and extraterrit&al investment opportunities for corporate nationals. In fulfdling these duties, ECAs will often engage in activitiesin other states, such as participating in government missions abroad to facilitatepartnershipsbetween home and host state corporations,or by maintaininga presence in other states to develop business opportunities for home state corporate nationals or to provide key market intelligen~e!~Where in the course of such activities a n ECAviolates human rights, such as, for example, breaches of the right to privacy in their intelhgence gathering, then the activitycould be attributed to the state, giving rise to internationalresponsibility. In these types of cases, the extraterritorial activities of corporate nationals empowered with governmental authority, can be attributed to the state. Where such activities violate international human rights law. the state will incur " international respoqsibility, even in situations where the corporation exceeds its authority7'
Corporations acting under the instructions, direction or control of the State
Where a corporation is not exercising elements of governmental authority, or cannot be shown to be doing so, then its activities may be attributed to the state if it is 'acting on the instructions of, or under the direction and control of' a state." Any conduct of corporations in these instances will only be attributable to the state where the activity in question was directly part of the state instruction or control and not where it was only incidental to it." However, in situations where a corporation is acting under the control of the home state and has ignored or contravened particular instructions, its acts will still be attributable to the state." Whether the conduct is in fact attributable to the state will depend on the extent of the state's control over the cor~oration'sextraterritorial activities. The ICJ established a test for control over non-state actors acting extraterritorially in Nicaragua v United States ofAmerica." In that case, the US had, interalia, financed, trained, supplied and equipped the contra, who were an armed opposition group opposed to the Nicaraguan government. The ICJ decided that, while the US
68 69 70 71 72 73 74
sion Paper, 4 June 2006 at http://www.halifaxinitiative.org/index.php/projects/699 (last visited 5 March 2007). ibid5 (and for a full discussion of thc attribution of conduct of ECAs to thc statc, scc 6-10). See for example, Export Development Canada, Annual Report 2005, 33-35 at http:// www.edc.ca/english/docs/2005annualreportpdf (last visited 5 March 2007). ILC Articles n 15 above, Article 7. This is also consistent with the basic premise of attribution in Article 3, that a state cannot rely on its own law to avoid international responsibility, as discussed abovc. ibid Article 8. The ILC comments that the words 'instructions','direction' and 'control' are disjunctivc and thcrcforc it is sufficient to provc any onc of thcni: scc ILC Commcntarics n 15 abovc, 113 at 171. ibid 110 at [3]. ibidll3 at [a]. Military and Paramilitary Activitim in and against Nicaragua (Nicaragua v United States ofAmericaj (Mer~ts)[I9861 ICJ Kep 14.
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Non-State Actors and International Law Robert McCorquodale and Penelope Simons
could be held responsible for the particular acts of financing, training, etc, of the group, and that therefore some of the acts of the contras were attributable to that state, there was insufficient evidence to find that the US 'exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf [and thus] of the acts contrary to that the United States directed or enforced the human rights and humanitarian law' as Nicaragua had alleged." The Court held that, even if the US participation in such acts was 'preponderant or decisive', it was still insufficient for the general attribution of the acts of the contra' to the US.76 The ICJS test in the Nicaragua case has been criticised for establishing such a high threshold for a finding of control of non-state actors by a state." However, this test was upheld by the ICJ in its 2007 decision on the application of the Genocide Con~ention.~' A lower threshold test for control was applied by the European Court of , ~relation to the attribution of conHuman Rights in Ilascu v Moldova and R M ~ s i ain duct of a Moldovian separatist regime (the MRT) to Russia The Court considered that the necessary degree of control was shown in this case where Russia had provided political and military support to the MRTand the latter remained 'under the effective authority, or at the very least the decisive infuence, of the Russian Federation','' even though " the Court did not decide that Russia was in effective control of the Transdniestrian region. This seems to indicate that the Court is not requiring a high degree of effective control (and certainly not territorial control) for it to find that the actions of non-state actors in another territory can be attributed to a state in such a way that a state is considered to have jurisdiction over such actors and, hence, has extraterritorial obligations under the ECHR.~' It is hard to imagine circumstances where a state would exercise the level of control required in la.&, let alone that required by the ICJ in Nicaragua, over a corporate national except, perhaps, in rare cases with respect to wholly state-owned corporations?' The requirement of Specific instructions or directives aimed at the comrnission of specific acts' to show effective control,83 suggests, at least in relation to 75 ibid at [lo91 and [115]. 76 ibid. Morc rcccntly, in Democratic Republic of Congo v Uganda, thc ICJ found Uganda had rcsponsibility for its assistance and control of forces in Congo: see Armed Activities on theEm'tory ofthe Congo (Democratic Republic ofthe Congo v Uganda), (Merits), n 45 above, 116 at [164]. 77 See, for example, D. Meikerge Chinva, rt 12 above, 34. 78 Case Concerning the Application ofthc Convention on thr Prevention and Punishment 4 t h Crime ofcenoride (Bosnia and Hemegovim v Serbia and Montenegro), (Judgment) 2007 [398407] at http://www. icj-cij.org/icjwww/idocket/ibhy/ibhyj~dgment/ibhyijudgment20070226frame.htm (last visited April 10,2007).See also M. MilanoviL,'StateResponsibility for Genocide' 17 EJIL 553,585-586. 79 Ilascu v Moldova and Russia (App no 48787199) ECHK 8 July 2004. 80 ibid at [392] (emphasis added). 81 This case can be distinguished from decisions by the European Court of Human Rights in cases such as Loizidou, n 36 above, since there is no sense in which the members of the armed opposition group (thc MRT) could bc sccn as statc officials (as wcrc thc local administrators in thcTRNC) and there was no official recognition by Kussia of the MKT in contrast toTurkeyS recognition of the TNRC. In addition, the requirement of 'dfective control' in the earlier cases is reduced in relation to the non-state actor to'decisive influence' in the MRYs activities. 82 See N. Jigers, n 12 above, 171, who makes a similar comment in relation to the test set out in Nicaragua and adds: tAt most it can bc argucd that thc homc statc may bc hcld rcsponsiblc for explicitly supporting harmful corporate activities abroad'. 83 Prosecutor v Tadit, Case IT-94-1, International Criminal Tribunal for the former Yugoslavia (ICTY), Appeals Chamber, (1999) 338 ILM 1518 at [132].
Non-State Actors and International Law Responsibility Beyond Borders corporations, that there would be little difference between entities acting on the imtructions of the state and entities acting under the effective control of the state. Where a corporation acts on the instructions of the home state, there is no requirement for such acts to constitute governmental activity. The ILC gves the example of persons or entities who are 'employed as auxiliaries or are sent as "volunteers" to ncighbouring countries, o r who a r c i n s t r u c t e d to c a r r y out parti-
cular missions abroad'.84 This issue has become more ~rominentsince the beein" ning of the (illegal) action by the occupying forces in Iraq, where it became clear how many private corporations were contracted by the states involved to deliver a wide variety of services, from providing intelligence to re-creating state infrastructure to support such military action." Indeed, the investigations after the dlscovery of abuse in Abu ~ h r a i b(and elsewhere) haveihown that some of these abuses were committed by employees of private contractor^.'^ National law has so far proved generally ineffective in ensuring that such corporations in Iraq comply with the rules of international human rights and humanitarian laxa7Yet there is a possibility that cases brought before international human rights treaty bodies may have some chance of success if those bodies attribute the actions of the corporations to the state, on the basis that they are acting on the instructions of the state (which is highly probable in such a tightly controlled area)?' Where such acts are found to be attributable to the state. the treatv bodies will then need to determine the extent of power, effective control or authority exercised by the state or its agents over the area or over the victims, and whether it is sdcient to bring the victims 'within the jurisdiction' of the state. In the case of Iraq, it may be possible to prove sufficient power, effective control or authority, on the basis of the ICJ's decision in Democratic Republic of Congo v ugandasg'that human rights treaties may apply to a state's conduct even where that state's level of control falls short of that of an [Olccupying ~ower'.~" Indeed, a UK court, in applying a much narrower definition ofjurisdiction than that reflected in the case law of international human rights tribunals, found that an Iraqi who was killed in the custody of UK forces on a military base in Iraq was w i t h the jurisdiction of the UK for the purposes of the ECHR (and the UKS Human Rights Act 1998)."' 84 ILC Commentaries, n 15 above, 110[2]. 85 See, for example, S. Gibson.'Lack of Extraterritorial Jurisdiction over Civilians: A New Look at an Old Problem' (1995) 148 Military Law Review 114 and M . Schmitt, 'Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees' (2005) Chicago JIL 511.We are grateful to Melanie O'Brien for her direction to this area. 86 M. Bina, 'Private Military Contractor Liability and Accountability after Abu Ghraib' (2005) 39 John Marshall Law Review 1237. 87 The cases that have been brought in the US have shown the lack of effective nanonal laws to deal with such violations of international humanitarian and international human rights law: seeJ. Perlak,'The Military ExtratemtorialJurisdictionAct of2000: Implications for Contractor Personnel' (2001) 169 Military Law Revirw 92 and G. Schmitt, 'Amending the Military Extraterritorial Jurisdiction Act of 2000: Rushing to Closc an Unforcsccn Loophole' (2005) Thc Army Lawycr 41. 88 In Edit, n 83 above, the Appeals Chamber took the view that the 'degne ofconhol may. . . vary according to thc factual circumstances of thc c a d at [I171 (cmphasis in original). 89 n 45 above. 90 Ccronc, n 21 abovc at 8. 91 R (on the appliration of Al-Skeini and others) v Secretary of Statefor Defence [2004] EWHC 2911 (Admin), [2005] EWCA 1609.That case concerned the killing in Iraq of Iraqi civilians by British military forces. The Court of Appeal upheld the decision of the court of first instance that,
51 7
Non-State Actors and International Law
518
Robert McCorquodale and Penelope Simons With the increasing use of corporations by states in their extraterritorial military activities, as well as in trade and other areas, there is clearly the possibility that the activities of these corporations will be attributed to the state. Where such activities violate international human rights law, the state will incur international responsibility, including those situations where the corporation contravenes in~tructions?~ Corporate activity and state complicity in internationally wrongful acts Article 16 of the ILC Articles provides that: A State which aids or assists another State in the commission of an internationally wrongful act by thc latter is intcrnationally rcsponsiblc for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.
According to the ILC, examples of situations where a state would be responsible for aiding and assisting, include 'knowingly providing an essential facility or financing the activity in question. . . facilitating the abduction of persons on foreign soil, or assisting in the destruction of property belonging to nationals of a third country'?3 In each case the assisting state must be aware that it is aiding or assisting in the commission of an internationally unlawful act, it must provide such aid or assistance in order to facilitate the act in auestion. and the act must constitute an internationally wrongful act if committed by the assisting state.% States have argued, for example, that providing military aid to the opposing state during an armed conflict, where that aid included chemical weapons, gives &e to state responsibility,95and the ICJ hinted at the possibility of state responsibility arising by complicity in Nicaragua v As noted above, ECAs routinely provide a full range of services to their corporate nationals to develop the latter's competitiveness in global markets. These services range from the provision of export credits and risk insurance to developing essential contacts in other states and participating in government trade missions
92 93 94
95 96
although the British Forces were an occupying power under international law, they did not exercise effective control over Basra at the time of the incidents. Only one victim, who was in military detention, was held to be subject to the jurisdiction of the UK forces and hence fell within the scope ofthe E C H R and the UKS Human Rights Act 1998.This case is on appeal to the UK House of Lords. ILC Articles, n 15 above, Article 7. This is also consistent with the basic premise of attribution in Article 3 that a state cannot rely on its own law to avoid international responsibility. ILC Commentaries, n 15 above, 148. ibid 149. To date there have been no examples In international human rights law where a case has been brought successfullyon the basis that one state has aided and assisted the violation of human rights by another state, though the situation in Ilascu v Moldova and Russia, discussed above, is a close analogy. This has been argued by Iran with regard to assistance by the U K to Iraq during the Iran-Iraq conflict in 1984- see ILC Commentaries n 15 above, 149-150 at [7]. Nicaraguav United States ofrlmerica, n 74 above a~ [114].
Non-State Actors and International Law Responsibility Beyond Borders
abroad." As discussed, the acts of ECAs can be attributed to the state in most cases. The hrect link between the provision of such services to assist the foreign direct investment of a state's corporate nationals, could be seen as a state aiding and assisting internationally wrongful acts. For example, a state or its ECA might provide financing (such as loans, political risk insurance or investment guarantees), which is essential to its c o r p o r a t e national's activities in a n o t h e r state. h s u c h a case, and where the host state allows the corporation or its subsidiary to operate within its territory in violation of its international human rights obligations (such as the protection of international labour rights)'' and the home state has the same international human rights obligations, then the home state could be found to be aiding and assisting an internationally wrongful act. Two cases in point are the Baku-Tbilisi-Ceyhan and Chad-Cameroon Pipeline projects. The financing for both projects has been provided by multilateral development banks, ECAs and other private banks and lenders." Both pipelines pass through states where human rights concerns have been raised in relation to, inter alia, freedom of expression, peaceful protest, fair compensation for expropriated property, the right to an effective remedy, compliance with international health and safety standards, non-discrimination and equal protection before the law.""' In addition, the legal frameworks for these two projects include agreements between the oil consortiums and the host state governments. These agreements contain stabilkation clauses that make the host governments liable to pay compensation where they make any regulatory changes that adversely affect the 'economic equilibrium' of the project10' and, inter aha, prohibit the host 97 Scc for cxamplc, Export Dcvclopmcnt Canada, Annual Rcport 2005, n 69 abovc. 98 The ILO has considered a fav cases involvingTNCs activitieswhere there has been a disregard for labour rights: see K. Beom Kim,'A Multilateral Contribution to Corporate Standards of Behaviour: The ILOi Declaration on Multinational Enterprises' in S. Tully (ed), Research Handbook on Corporate Legal Responsibility (Cheltenham: Edward Elgar, 2005) 319. 99 For the Baku-Ceyhan line the major lenders included the International Finance Corporation (IFC), the European Bank for Reconstruction and Development, and ECAs from the UK, US, Japan, France, Italy and Germany: see http://www.baku.org.uk/ and http://www.eca-watch.org/ problenis/oilgasmining/btc/indexfinance.htn(last visited 5 March 2007). The UKB ECGD provided export credit guarantee support for a USD $150 line of credit to the UK companies involved in the project: see ECGD News at http://www.ecgd.gov.uk/index/newshome. htm?id=5932 (last visited 5 March 2007). The financing for the Chad Cameroon Pipeline was provided by the International Bank for Reconstruction and Development, the IFC, and ECAs from the US and France and the African Export-Import Bank, among others: see Amnesty International, 'Contracting Out of Human Rights: The Chad Cameroon Pipeline Project' London, September 2005, 26 at h t t p : / / w e b . a m n e s t y . o r g / l i b r a r y / I n d e x / e n ~(last visited 5 March 2007). 100 See Amnesty International,'Human Rights onThe Line: The Baku-Tbilisi-Ceyhan Pipeline Projcct' London, May 2003, at http://www.amncsty.org.uk/contcnt.asp?Catcgo~ID=l012 (last visited 5 March 2007) and 'Contracting Out of Human Rights: The Chad Cameroon Pipeline Project' hid. For more information on the human rights concerns raised by the Baku Ceyhan pipeline see also the variety reports of fact-finding missions of the Baku Ceyhan Campaign to (last the pipeline areas in each of the three host states at http://www.baku.org.uk/missions.htn~ visited 5 March 2007). 101 ibid 11 and 21-22 respectively See also T. E. Lawson-Remer, 'A Role for the International Finance Corporation in Integrating Environmental and Human Rights Standards into Core Project Covenants: Case Study of the Baku-Tbilisi-Ceyhan Oil Pipeline Project' in 0. De Schutter (ed), Tansnational Corporations and Human Rights (Oxford: Hart, 2006) 393,41Wll.
51 9
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Non-State Actors and International Law
Robert McCorquodale and Penelope Simons governments from applying certain labour standards to the consortium members.")' All the agreements give the consortium members a right to take the respective host states to binding arbitration to seek compensation, even where regulatory measures are brought in or applied for the purpose of protecting human rights.'" The legal framework for these projects therefore creates significant disincentives for the host governments to legislate to protect human rights or to comply with any applicable international human rights obligations. The consortium members of the Baku-Ceyhan project'04have now signed a legally binding agreement to ensure that the investor agreements are not interpreted to prevent the host states from protecting human rights through regulatory measures.'05 However, the international legal status of this undertaking is unclear'oh and, in any event, the agreement does not address other human rights issues raised by the project, such as compensation for expropriation of private land and 'monitoring and reporting mechanisms for human rights violations in the vicinity of the pipeline'.'o7 Therefore, states which have provided financial backing for these projects through their ECAs to corporate nationals involved (such as BP and Chevron), may be found to be complicit in a host state's internationally wrongful act (ie a violation of its human rights obligations)in relation to respecting and protecting the international human rights of persons affected by the consortium activities. A home state may also be found to be complicit in the extraterritorial activities of corporations themsdves, and thus incur international responsibility in other circumstances.While the ILCS Articles deal only with the responsibility of states, they do not exclude the possibility of other actors invoking responsibility or incurring responsibility.108It is now established that individuals can incur international responsibility for a growing number of international crimes.'09 Moreover, it has been convincingly argued that corporations and other business entities have obligations under international law not to commit international crimes and therefore can incur international responsibility for complicity in, and commisv
102 Thus, for example, in its Host Government Agreement for the Baku pipeline, theTurkish governmcnt is prcvcntcd from rcquiring any consortium mcnibcrs to comply with labour standards 'that i) exceed those international labour standards or practices which are customary in international Petroleum transportation projects, or ii) are contrary to the goal of promoting an efficient and motivatcd workforcc': Amnaty International, 'Human Rights on thc Linc' n 100 abovc, 1617. See also 'Contracting out of Human Kights'n 99 above, 24. 103 ibid, 14 and 22 respectively. 104 The consortium members include Amerada Hess, AzBTC, 131: Chevron, ConocoPhillips, Eni, INPEX, Itochu, Statoi1,Total andTPAO, ofwhich BP is thelargest stakeholder see BTC Co. partners (last at http://www.bp.com/n~anagedlistingsection.do?categoryId=9OO7998&contentId=710 visited 5 March 2007). 105 'Contracting out of Human Rights'n 99 above, 11. 106 See Lawson-Rcmer, n 101above, 417-420, where she discusses the significanceof this undertaking and two other documents signed by the host governments (a security protocol and a joint statement addressing human rights concerns) but questions their status under international law and notes that 'the legal value courts or arbitrators would attach to the three documents remains an opcn qucstion'. 107 Amnesty International, 'Baku-Tbilisi-Ceyhan Pipeline Project - November 2003 Update' at http://www.amnesty.org.uk/content.asp?Catego~ID=l0128 (last visited 5 March 2007). 108 See for example, Pisillo Mazzeschi, n 18 above. 109 See for example the crimes set out in the Rome Statute of the International Criminal Court (adopted I7July 1998, entered into force I July 2002) 2187 UNTS 90.
Non-State Actors and International Law Responsibility Beyond Borders
sion of, acts that constitute international rimes."^ Claims have been filed against corporations in national courts for complicity in state violations of customary international law, which include acts such as genocide, forced labour, war crimes and slavery"' Therefore, where a home state aids or assists a corporation in the commission of, or in the latter's complicity i n , acts that, if c o m m i t t e d by t h a t home state would
constitute internationally wrongful acts, that state will incur international responsibility, at least where the aid or assistance 'contributed significantly to that act'."" So, where a home state aids or assists a corporation, for example, by supporting it in seeking 'regime change'll3 or through its ECA by providing loans, political risk insurance or investment guarantees, and the corporation then violates human rights that constitute international crimes, then that state can be considered responsible under international human rights law.'14 A. Clapham,'State Kesponsibility, Corporate Kesponsibility, and Complicity in Human Rights Violations' in L. Bomann-Larsen and 0.Wlggen (eds), Responsibility in World Business: Managing HayF.1 Side-Eflitts of Corporate Activity (Tokyo: Unitcd Nations Univcrsity Prcss, 2004) 50-81 at 68. Crawford and Olleson suggest, on the other hand, that while individuals may incur international responsibility in the criminal context there is no general international regime for dealing with the responsibility of non-state actors. In addition they maintain that 'so far there has been no development of corporate criminal responsibility in international law' since none of the three international criminal tribunals has jurisdiction to try legal persons: J. Crawford and S. Olleson,'The Nature and Forms of International Responsibility' in M. D. Evans (ed), InternutionalLaw (Oxford: Oxford UP, 2003) 445472 at 447.The Statute for the Speclal Court for Sierra Leone - (adopted 16 January 2002, entered into force 12 April 2002) 2178 UNTS 138, 145 - does not exclude jurisdiction to try corporate entities. Article 1 gives the court 'the power to prosecute persons who bear the greatest responsibility for serious violations of intemational humanitarian law and Sicrra Lconcan law' and no distinction is made betwen natural and legal persons. Nonetheless, as Clapham notes,'corporations can still be the bearer of international duties outside the context of international courts and tribunals. Lack of international jurisdiction to try a corporation should not ncccssarily mcan that thc corporation is undcr no lcgal obligation. Nor does it mean that we cannot speak about transnational corporations breaking international law' (57). Clapham ibid 58. See for example, the cases brought against French and Swiss banks for their activities during the Nazi Germany era: Bodner v B a n q u ~Pariba 111 Fed Supp 2nd series 939 (2000) and In re Holocaust Victim Assets Litigation 105 Fcd Supp 2nd scrics 139 (2000)-both caws scttlcd. Scc also S. Joseph, Corporatiom and 'Z?ansnational Human Rights Litigation (London: Hart, 2004). It has also been argued that state responsibility for complicity in acts of genocide requires a relatively low lcvcl ofintcnt: M. Milanovii, n 78 abovc, 574. 1LC Commentaries, n 15 above, 149 at [S]. Anvil Mining, an AustralianTNC operating in the Democratic Republic of the Congo, has admitted that it provided transport to the Congo military to deal with a minor revolt near to the corporation'smine and the Congo military then allegedly (last visited 29 killed many people: see www.abc.net.au/4comers/content/2005/s1384238.htm march 2007) - wc thank Adam McBcth for this information. For example, it is alleged that US corporations, such as ITT, were involved in the overthrow of the Allcndc Govcrnmcnt in Chilc and thc Unitcd Fruit Co mastcrmindcd a coup in Guatcrnala- scc K. Zipper, Politics and Ideology in Allende's Chile (Tempe, AZ: Arizona State University, Center for Latin American Studies, 1989) 169-176, E. Kaufman, Crisis in Alknde's Chile: New l'erspectives (New York: Praeger, 1988) 20-24, and S. Schlesingerand S. Kinzer, Bitter Fruit: the Untold Story oftheAmerican Coup in Guatemala (London: Sinclair Browne, 1982) 9W97. A. Clapham,'State Responsibility, Corporate Responsibility, and Complicity in Human Rights Violations' n 110 above, 68. In addition, as Nollkaemper notes, a limited number of acts can be attributed twice and thus to lead to concurrent state responsibility and individual responsibility. 'These acts include planning, preparing or ordering wars of aggression, genocide, crimes against humanity, killings of protected persons in armed conflict, terrorism and torture':
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In order for the state to be held responsible for complicity in the above situations, it must be shown that the state knew that it was aiding or assisting in the commission of the wrongful act. Yet, where the assistance is provided by ECAs, constructive knowledge can be assumed where the agency maintains that it takes the human rights or social impact of a project into account in its decision-making or it is normally required to undertake assessments of, or investigations into, the human rights impacts of a particular project."5
HOME STATE RESPONSIBILITY AND THE FOREIGN SUBSIDLARIES OF CORPORATE NATIONALS
From this analysis it is clear that a home state may incur international responsibility for extraterritorial activities of a corporate national that violate international human rights where the corporation is exercising governmental authority or is acting under the instructions, direction or control of the home state. In addition, a state may be found to be internationally responsible for aiding and assisting an internationally wrongful act committed by a host state in relation to the activity of the former's corporate national or its subsidiary or where the home state is knowingly complicit in an international crime perpetrated abroad by a corporate national or its subsidiary. Yet, because corporations generally conduct extraterritorial operations through a subsidiary incorporated in a state other than the home state (ie the host state) the question arises whether, apart from the situations of complicity, a home state may be found to be internationally responsible for the acts of a corporate national's foreign subsidiary that violate human rights in another state. A home state may have an extraterritorial obligation to protect human rights, to the extent that it should exercise due diligence in relation to the acts of such foreign subsidiaries. see A. Nollkaemper,'Concurrence Between Individual Responsibility and State Rsponsibility in International Law' (2003) 52 ICLQ 615. 115 See Can and Seck n 67 above, 9, who note that '[tlhe social and environmental impact assessments that ECAs conduct of T N C activities and the resulting conditions that are applied in the loan agreements may represent an implicit acknowledgement of the ECAk due diligence obligations'. See also UK Export Credits Guarantee Department, GCDG'sBusiness Principles, December 2000, 6, at http://www.ccgd.gov.uk/ccgdbusprinciplcs.pdf (last visitcd 5 March 2007), which statcs that when considering supporting a project the ECDG will'look not only at the payment risks but also at the underlying quality of the project, including its environmental, social and human rights impacts' and will Scrccn applications for covcr to idcntify, and thcn analysc, any advcrsc or bcncficial environmental, social or human rights aspects of relevant projects'. The UK Minister for Trade, in his statement to Parliament.17 December 2003, said that the ECGDS decision to provide export credit guarantee support for a USD $150 line of credit for UK contractors involved in the Baku-Tbilisi Ceyhan pipeline, 'was made after a rigorous assessment of the risks associated with the project and a thorough review of the environmental, social and human rights impacts arising from the project': see ECGD News at http://www.ecgd.gov.uk/index/newshome/btc statementhtm (last visited 5 March 2007). See also Export Development Canada, Corporate Social Respowihility Report 2005, %9, which discusses the agency's analysis of the human rights impacts of projects at http://www.edc.ca/english/docs/csrannualrepor05.pdf (last visited 5 March 2007).
Nun-State Actors and International Law Responsibility Beyond Borders
Acts o f foreign subsidiaries and general international law
It has long been asserted that '[a] subsidiary is a separate legal entity and therefore necessarily distinct from its parent . . . as a matter of international law, parent and subsidiary are each subject to the exclusive jurisdiction of their respective state^]'."^ This view is largely based on the decision of the ICJ in the Bavrelorzd Zaction Case.'" However, that decision must be reviewed in light of both its own context - having been decided for the purposes of diplomatic protection in international law - and in light of subsequent developments in the understanding of corporate groups, including TNCs, away from the traditional concept of separate legal entities. State practice reflects a variety of approaches for dealing with 'the tendency of groups of companies to utilise their legal structure to avoid state regulation'.""here is a long-standing practice of some courts to look at the whole operation of aTNC, and not just its notionally separate parts, in order to bring a foreign parent corporation within the jurisdiction of a state. For example, the US 'has developed very broad theories of the unity or integration of the enterprise, of acting as "alter ego" or whatever other phrases may have been employed to establish that the foreign parent is in fact present, &dent or "found" in the United state^'."^ Likewise, the approach of the European Court ofJustice in competition cases has been to 'investigate the parameters bf the [corporate] group structure and the reality of the interrelationships within the grou~'.'~~' Moreover, states have extensive authority and capacity under international law to exercise prescriptive and adjudicative jurisdiction over the extraterritorial activity of corporate nationals."' In addition, where such corporation is a parent corporation, the home state is entitled under international law to regulate indirectly any wholly owned or controlled foreign subsidiaries by requiring the parent to impose on such subsidiaries a particular course of action or to include particular terms in any contract.lZ2There is now substantial state practice of extending national law to regulate the conduct of corporate nationals operating extraterritorially through foreign subsidiaries, such as in areas of competition law, shareholder and consumer protection, anti-bribery and corruption, and tax
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A
116 Mann, n 5 above, 56. See discussion in L. Dubin,'The Direct Application of Human Rights Standards to, and by, Transnational Corporation< (1999) 61 The Review ofthe Internatloml Commission of Jurists 35, and Crawford and Olleson, n 110 above, 448. 117 Case Conc~rningthe BarcelomTaction, Light andpower Co LId(SrcondPhare) (Belgium v Spain) [I9701ICJ Reports 3.42. 118 See J. Dine, The Governance of Corporate Groups (Cambridge: CUP, 2000) 65 and generally 37-66. CUP, 2005). and I. Dine, Companies, IntermtiomITade and Human Rkhts -. (Cambridge: . 119 ~ a & n, 5 above, 63. 120 Dinc, The Govermnceof - Corporate Groups, n 118 abovc, 56. According to Muchlinski, Ncw Zcaland courts have the power to order any entity in a corporate group'to pay the liquidator of an insolvent company the whole or part ofany or all the debts provable: l? Muchlinski, Multinational Enterprises and the Law (Oxford: Blackwell, 1999) 36-338. 121 See Mann n 5 above. 122 ibidat 62. Mann adds the caveat that the required action or terms should not conflict with thelaws ofthe host state. However, at least in relation to human rights, that is no longer considered a matter of domestic concern, required actions or terms which were consistent with a host state's international human rights obligations but inconsistent with a host state's laws would still be valid.
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Robert McCorquodale and Penelope Simons law.Iz3In relation to bribery and corruption, states have concluded treaties imposing obligations on them to regulate extraterritorial conduct of corporate nationals and their subsidiaries.124 More recently, national courts of a number of states have begun to 'pierce the corporate veil', or to examine the entire corporate group, to impose liability on the parent company (which is a corporate national) for the acts of foreign subsidiaries that constitute violations of international human rights law? This would seem to apply where there is effective central managerial control over a subsidiary by a parent within the sarneTNC entity. In this regard, it has been persuasively argued that: [IfaTNCisregardedas]aconglomerateofunitsofasingleentit y, eachunit performinga specificfunction, the function of the parent company being- to -provide expertise,technology supervisionandfinance. . . [thenif]injuries result from negligenc&nrespect of the parent company functions, then the parent company should be liable.'26 Therefore, the conceptual support in state practice for including the actions of a foreign subsidiary of a corporate national within the parameters of a home state's legitimate prescriptive and enforcement jurisdictional scope is considerable. Such practice proves that home states can, and in fact do, extend this jurisdiction to the extraterritorial activities of their corporate nationals and the latter's foreign subsidiaries in growing number areas of law. State responsibility for the extraterritorial effects o f corporate activities
Under international law each state has a general duty not to act in such a way as to cause harm outside its territory.l2' This includes actions causing transboundary environmental impacts where the state ought to have had control over the activities that led to these impacts.'2R There is growing support for the view that '[wlhere a 123 See Somarajah n 12 above. Muchlinski n 120 above, 336-337, notes that laws in France, Germany and the UK make directors of foreign parent companies potentially liable to creditors in cases of insolvency of domestic subsidiaries. 124 See for example the UN Convention Combating Bribery of Foreign Public Officials in International Business Transactions (Convention Against Corruption) 2003 (adopted 31 October 2003, entered into force 14 December 2005) (2004) 43 ILM 37. The Convention imposes obligations on states parties to establish laws and criminal sanctions with respect to the bribery offoreign public officials and officials of public international organisations (Article 16) and to extend liability (whcthcr criminal, civil or administrative) and sanctions to lcgal pcrsons (Articlc 26). 125 See, for example, the UK House of Lords decisions in Connelly v R'l Z [I9981 AC 854 and Lubbe et a1 v Cupeplc [2000] 4 All E R 268. See also the case law under the US Alien Tort Claims Act 1789 relating to the liability of corporations for violations of 'the law of nations', for example, Presbyterian Church of Sudan v 'lblisman Lnergy, Inr 244 F. Supp. 2d 289 (S.D.N.Y. 2001), Wiwa v Royal Dutch Petroleum Co 226 F.2d 88 (2d Cir 2000) and Doe v Unocal Gnp 248 F.3d 915 (9th Cir 2002). For a full discussion of both the UK and US case law cited above see S. Joseph, Corporations andTansnationa1 Human Rights Litigation (Oxford: Hart, 2004). 126 R.Meeran,'The Unveiling of Transnational Corporations: A Direct Approach'in M. Addo (ed), Human Rights Standards and the Responsibility (liansnational Corporations (The Hague: Kluwer Law International, 1999) 161,170. 127 See for example, 'l'he Rainbow Warrior (New Zealandv France) (ArbitrationTribunal) (1990) 82 ILR 449. 128 See, for example, Tail SmelterArbitratiorr ( U S v Cunada) 3 KIAA (1941) 1905.
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state knows that its national's activities will cause, or are causing, harm to other states or peoples, it is consistent with this [general] duty that it should prevent such harm','29 where the state can, in fact, control the impugned This general international legal responsibility of states is linked to obligations under international human rights law. International human rights law requires a state to t a k e measures
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s u c h as by legislation a n d administrative practices
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control, regulate, investigate and prosecute actions by non-state actors that violate the human rights of those within the territory of that state.13' These actions by non-state actors do not have to be attributed to the state, rather this responsibility is part of the state's obligation to exercise due diligence to protect the human rights of all persons in a state's territ~ry.'~'Hence, states have been found to be in breach of their obligations of due diligence in relation to activities of corporations within their territory, because the acts or omissions by the state enabled the corporation to act as it did.'" This obligation of due diligence has an extraterritorial dimension. A state may be responsible for a violation of an international human rights treaty obligation where 'acts of their authorities, whether performed within or outside national boundaries. . . produce effects outside their own territory"34 and for 'the extraterritorial consequences of its intra-territorial decision^'.'^^ Specific examples of violations of this obligation include where a state tried a person in absentia (ie who is Somarajah, n 12 above, 507. Somarajah makes this assertion in relation to acts that violatejus cogens norms. SeeJigers n 12 above, 17C172, and C. Scott,'Multinational Enterprises and Emergent Jurisprudence on violations of Economic, Social and Cultural Rights' in A. Eide, C. Krause and A. Kosas (eds),Economic, Social and Cultural Rights: A Trvtbook (Dordrecht: Kluwer Law Intemational, 2nd ed, 2001) 563-595,587. See also I. Seidl-Hohenfeldem, International Economic Law (Dordrccht: Martinus Nijhoff, 1989) 15%160. Scidl-Hohcnfcldcrn maintains that dcspitc thc lack of a general rule there may be situations in which a state could be held responsible for the acts of its national cor~orations'for examde. the exDort tolerated bv the authorities of the home countrv. of goods, whosc salc in thc homc country is banncd on account of hcalth risks'. 130 Jeers n 12 above, 167, 'A situation of control can be taken to exist when the State has either the possible victim or the possible perpetrator within its jurisdiction: 131 See, for example, Efrisquez Rodriguez v Honduras, (1989) 28 ILM 294, Herra Rubio v Colombia (1611 1983), (1988) HRC Report, GAOK, 43rd Sess, Supp 40,190 [ll], ErgivErkey (App. 23818194) (1998) (2000), ECHR 13 Tune 2000. and Av UK (ADD 32 E H R R 388. Timurtas vTurkev, (ADDno 23531194) , ,. no 25599194 ) (1999) 27 E H R R 611. 132 Scc gcncrally A Clapham, Human Rkhtr in the Private Sphere (Oxford: Clarcndon Prcss, 1993) and s the Private sph& Using the ECHK to Protect the Kight A. ~ l a ~ h a m , ' ~ e v i s i tHuman i n g ~ i g h t in of Access to the Civil Court' in C. Scott (ed),Torture a~Torfn 12 above 513. This obligation of due diligence is part of the obligation to protect human rights, being within the three-fold responsibility on states to respect, protect and fulfil human rights: see, for example, the analysis by the CESCR in General Comment No 13 on the Right to Education, where the Committee states, at [46]: 'The right to education, like all human rights, imposes three types or levels of obligations on states parties: the obligations to respect, protect and fulfil. In tum, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide.' 133 See, for example, Young, James and Webster v UK (App no 7601176) (1982) 4 EHKK 38 (labour rights), Social and Economic Rights Action Gjntrrfor Economic and Social Rights v h'igeria, African Commission, Conlmunication No 155196 (2001) (pollution) 198544, and The Mayagna (Sumo) Awas 7i'ngni Community v Nicaragua, Inter-American Court of Human Rights Series C No 79 (31August 2001) (indigenous rights). 134 Loizidou v7urkey (Preliminary Objections) n 37 above at [62]. 135 S. Joseph, J. Schultz and M. Castan, The I n t m a t i o ~ lCovenant on Civil and Political Rights: Cases, Commentaryand Maten'als (Oxford: OUP, 2nd ed, 2004) 96.
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\
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Non-State Actors and Interrzational Law Robert McCorquodale and Penelope Simons
not present in that ~tate),"~ allowed itsjudges to preside over the courts of another state,'37 and for actions in its dependent territories.13' The obligation to exercise due diligence with respect to the extraterritorial activities of corporate nationals is a necessary component of this obligation on a state, since without some form of extraterritorial regulation of corporate nationals, such entities 'could easily bypass the mandate of municipal law by transferring or relocating their business operations offshore where human rights obligations are less stringent'.139 Moreover, all states which have ratified the ICESCR have extraterritorial obligations, which include obligations in some circumstances to regulate the activities of their corporate nationals. It has been suggested that the obligation to protect under the ICESCR 'includes an obligation for the state to ensure that all other bodies subject to its control (such as transnational corporations based in that state) respect the enjoyment of rights in other countries'.140Thus where a corporate national operating abroad (through a foreign subsidiary) violates, for example, fundamental labour rights protected under the ICESCR'[i]t may be argued that states are under an obligation to regulate, investigate and even bring before the courts conduct of a transnational corporation under its home state jurisdiction where aS'thresholdof gravity" of human rights violations is at stake'.141 Indeed, as discussed above, because home states have some means to control the extraterritorial activity of foreign subsidiariesof corporate nationals, where a state has 'sufficient knowledge' of the human rights impact of such activity in the host state, the home state has a duty 'to prevent and mitigate the risk by adopting legislation to this end. A failure to do so would amount to a breach of the international obligation to exercise due diligence, for which international responsibility ariseS.14' It cannot reasonably be argued today that states do not know that their corporate nationals (or the latter's foreign subsidiaries) may engage in human rights violating activity in their extraterritorial operations. The negative impact of some extratemtorial corporate activity on human rights, particularly ecoIn addition, there nomic, social and cultural rights, is now well doc~mented.'~~ are an increasing number of investor and consumer campaigns in relation to extra-
136 Mbenge v Zaire (16177) HRC vicws, 25 March 1983. 137 Urozd andJanousek v 1:rance and Spain n 24 above. 138 Provided that state has applied the ICCPR to that dependent territory, expressly or (possibly)by implication - Kuok Koi v Portugal (025/00,9 IHKK (2002) 300, especially at [6.3]. 139 Dcva, 'Acting Extraterritorially to Tamc Multinational Corporations for Human Rights Violations: Who Should "Bell the CatV?n12 above, 49. 140 F. Coomans,'Some Remarks on the Extraterritorial Application of the International Covenant on Economic, Social and Cultural Rights'in F. Coomans and M. T. Kamminga (eds),n 31 above, 192. 141 ibid193. 142 Jagers n 12 above, 171-172. 143 See for example, ECOSOC, The Realization ofEconomic, Social and Cultural Rights: The Relationchip between theEnjoyment ofHumatr Rights, in particular, International LabourardTade Union Rkhts, and the Working Methods and Activities fliansnational Corporations, U N Doc E/CN.4/Sub.2/1995/11(1995). in particular at [58], [61-64]and [91]. Foreign direct investment in export processing zones (EPZs) has been associated with some of the gravest abuses of human rights, and in particular violations of fundamental labour rights: see ECOSOC, Human Rights PrinriplesforZansnational Corporations and Other Bu.~inrssEntqrires, Introduction, U N Doc E/CN.4/Sub.2/2001/WGG2/WPP1/Add.l (2002) [5] at http://wwwl.umn.edu/humanrts/introduction054142final.htd (last visited 5 March 2007).
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Responsibility Beyond Borders
territorial T N C human rights impacts abroad,'44 and of claims being brought in national courts against TNCs for egregious violations of human rights.145 Moreover, the UN Sub-Commission on the Promotion and Protection of Human %ghts' submission of the UN Norms on the Responsibility ofTansnationa1 to Human RightP6 to the U N Corporations and other Business Enterprises with Refard Human Rights Council has propelledthe dialogueon the humanrights implicationsof
T N C conduct to the forefront of global debate, to the effect that no industrialised state can claim ignorance in this regard. Indeed, most industrialised states encourage their corporate nationals to adopt and abide by voluntary codes of conduct when operatmg overseas. OECD states (which include most of the home states of the major T N C S ) ' ~ ~ have adopted the OECD GuidelinesfarMultinationalEnterprises,which encouragecorporate nationals to '[rlespect human rights of those affected by their activities consistent with the host government's international obligations and commitments'."* Although this is a lesser degree of knowledgethan that required for complicity,as discussed above, it is appropriate considering that the obligationto exercise due diligenceis an obligation to protect, requiring positive action by the state. At the very least, it can be asserted that states have constructive knowledge that corporate nationals may violate human rights standards in their extraterritorial operations in two sets of circumstances, thus engaging the state's obligation to exercise due diligence in relation to such activities. The first is where corporate nationals invest, or intend to invest, in confict zones, failed states or repressive regimes, and engage in a business relationship with host state governments or a non-state actor party to a civil ~ 0 n f l i c t . lIn~ ~these situations, host state governments may be 'unable or unwilling to prevent or stop grave violations of international human rights or humanitarian law, or [may be] themselves the perpetrators of the abuses [thus] TNCs are more likely to be implicated in the violations'.150
144 Scc for cxaniplc Maquila Solidarity Nctwork campaigns in rclation to thc abusc oflabour rights at http://www.n1aqui1asolidarity.org/(last visited 5 March 2007) and see also Human Kights Watch campaigns and reports on other violations of human rights by corporations at http://hrw.org/doc/ ?t=corporations (last visited 5 March 2007). See discussion of the 1999 investor campaign by the 'Taskforce for Churches and Corporate Responsibility (TCCR) and the Interfaith Center on Corporate Responsibility against Talisman Energy for its investment in Sudan at http:// topics.nytin~es.com/top/news/international/cou~~triesandterritories/sudan/i~~dex.html?query~ INTERFAITH%20CENTER%200N %20CORPORATE%20RESPONSIBILITY&field= org&match=exact (last visited 5 March 2007). See also the summary of the divestment campaign against Talisman Energy Ltd in relation to its involvement in Sudan in G. Gagnon, A. Macklin and P. Simons, 'Deconstructing Engagement: Corporate Self-Regulation in Conflict Zones Implications for Human Rights and Canadian Public Policy' (University of Toronto Public Law Kesearch Paper No.0447) at http://www.law.utoronto.ca/faculty.content.asp?itemPath=l/ 7/0/0/0&contentId=692 (last visited 5 March 2007) 30. 145 See discussion at n 125 above. 146 n 6 above. 147 See discussion at n 10 above. 148 OECD, 'The OECD Guidelines for Multinational Enterprises', n 6 above, Annex 1, 11. These Guidelines require home states to establish National Contact Points to promote and raise awareness of the guidelines, assistTNCs with implementation, and deal withTNCs where problems of non-compliance arise. 149 lnternational Council on Human Rights Policy Report, Beyond Voluntarism Human Rights and the Developing lnternational Legal Obligations ofCompaniu, February 2002,Versoix, Switzerland at 141. 150 G. Gagnon, A. Macklin and f! Simons, n 144 above, 11.
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Non-State Actors and International Law Robert McCorquodale and Penelope Simons
Home governments are fully aware of the political risks involved in investment in these locations and routinely provide such information to corporate nationals.15' Indeed, there are instances where a state has taken some action (however ineffective) to prevent extraterritorial investment or to require disinvestment by corporations in these types of situations due to serious human rights The second situation in which states could be deemed to have constructive knowledge, and thus an obligation to exercise due diligence, relates to circumstances where the home state could be seen to be facilitating extraterritorial harm perpetrated by a corporate national (through its foreign subsidiaries)-perhaps a form of aiding and assisting. This would include where a home state of a TNC negotiates a bilateral investment treaty (BIT) with a non-industrialised state.'" These agreements are usually based on model agreements of the industrialised and economically powerful states, and create strong protections for its corporate national in~est0rs.l~~ At the same time, the key provisions of these
151 Seen 69 above and accon~panyingtext. 152 See, for example, the UK government's request to Premier Oil and British American Tohacco to cease investment in Burma, The Guaniian, 7 September 2003.23. The Canadian govemment allegedly attempted to dissuadeTalisman Energy from investing in Sudan in 1998. In 1999 when reports began to link oil exploration and development in South Sudan with egregiousviolations of human rights, the Canadian Government sent a fact-finding mission to investigate and hinted that sanctions might be implemented if the allegations were substantiated. Following the release of the Report of thc Canadian Assnsmcnt Mission to Sudan, which did find cvidcncc that oil cxploration was fuclling the war and could be linked to forced displacement and other grave violationsofhuman rights, the then Minister for Foreign Atfairs and InternationalTrade stated that 'Canada [did] not encourage private sector activity in Sudan'. However the only substantiveaction taken by the govemment was to requireTalismanto take a number of measures including the adoption of a voluntary self-regulation regime which'critin argued did little or nothing to address problems caused byTalismanS presence in Sudan': see G. Gagnon, A. Macklin and P. Simons, n 144 above, 31-32. 153 There are currently over 2,400 BITs in existence: see UNCTAD, Investor-State Disputes Arising From Investment Teaties: A Review (NcwYork and Gcncva: Unitcd Nations, 2005), 3. In addition, some corporate executiveshave served, usually on secondment, in high-ranking government positions, as part of trade or other state delegations, and so been directly part of state action and state knowledge. For example, a former vice-president of Cargill acted as the US negotiator on agriculture in the initial stages of the Uruguay Round negotiations before returning to work in the grain industry: see S. Murphy, TradeandFood Security: A n Assessment ofthe Uruguay Round A p e m m t on Agriculture (London: Catholic Institutc for Intcrnational Relations, 1999),11. Morcovcr, a study on thc composition of US trade advisory committees found that of the 111members of the three committees reviewed, 92 were'from individual companies and 16 from trade associations' compared with only two from labour unions: UNDP, Human Development Report 2002: Deepeniq Democracy in a Frap mented World (NewYork, Oxford: Oxford UP, 2002) 68. 154 The rationalisation for thc dcvclopmcnt of thc strong protcctions and rights forTNCs containcd in BITs has been premised on the idea that such investment is necessary for, or will entail, economic development and therefore merits protection. This presumption is now being called into question: see M. Sornarajah, The International Law ofon Forekn Investment (Cambridge: CUP, 2nd ed, 2004) 262. It has been noted that '[wlhether FDI contributes positively to development often depends on the ability of the national govemment to adopt a sound and equitable regulatory framework' (Oxfam. TheEmperor's h'ew Clothes: W h y Rich Countries Want a W T O Investment Apement, Oxfam International Briefing Paper 46 (April 2003) 13).See alsoV Been andJ. C. Beauvais,'The Global Fifth Amendment? NAFTA5 Investment Protections and the Misguided Quest for an International 'KegulatoryTakings' Doctrine' (2002) 78 NYUL Kev 30,123.
Non-State Actors and International Law Responsibility Beyond Borders
treaties, along with the restrictive termination c l a ~ s e can s ~ operate ~~ to restrict the host state's capacity to regulate foreign investors so as to ensure that the investment is consistent with the host state's human rights 0b1i~ations.l~~ For example, in the BITs negotiated by the US and canada,I5' non-discrimination rights (national and most favoured nation treatment) are usually extended to the pre-establishm e n t p h a s e of i n v e s t m e n t by t h e i r o w n ~ ~ ~T hsi s.h a' s ~particular ~ implications
for the protection of human rights since these provisions preclude the host state from screening prospective foreign investors and investments, and thus limit its ability to ensure that a particular foreign investment will benefit the host state's development in a manner that protects human rights.159 Many BITs also prohibit host states from imposing a wide range of performance requirements on investors. These types of performance requirements would normally obligate foreign investors to ensure that they conduct their business by taking certain measures 'considered beneficial to the host economy', such as sourcing locally, engaging in technology transfers, or hiring host state nationals.160The prohibition of performance requirements prevents host states from providing for backward linkages of foreign investment into the local economy, thus limiting host states' ability to provide 'an important means of ensuring that private economic activity has an impact on social development and, afortiori, on the progressive realization of human rights'.l6l D. Schneiderman, 'Investment Rules and the New Constitutionalism' (2000) 25 Law and Social Inquiry 757, 771, notes that in most BITS states parties may not terminate the agreement for 10 years and subsequent notice of withdrawal will only take effect after more than 12 months. ibid 758. Schneiderman states that the tenets of these agreements together inhibit the capacity of host states 'to regulate and control the inflow of investment*and 'to resist the encroachment of foreign influence and distribute the gains from economic development more evenly across a broader socioeconomic spectrum' ibid 767ff. Greider has referred to such agreements as a 'golden straitjacket': see W Greider, 'Investment Rules are the Obstacle', Letter to the Editor, Financial Times (26 November 2003), available at Financial Times http://search.ft.com/nonFtArticle? id=031126001011&query=greider&v(last visited 5 March 2007). See for example Article I1 (3) of the Agreement between The Government of Canada and The Government of the Republic of Ecuador for the Promotion and Reciprocal Protection of Investments, at OAS Trade Unit's Foreign Trade Information System, http://www.international.gc.ca/ tnanac/documents/FIPA/ECUADOR-E.PDF (last visited April 9,2007).The agreement states: Each Contracting Party shall permit establishment of a new business enterprise or acquisition ofan existing business enterprise or a share of such enterprise by investors or prospective investors of the other Contracting Party on a basis no less favourablethan that which, in like circumstances, it permits such acquisition or establishment by: (a) its own invntors or prospcctivc investors; or (b) investors or prospective investors of any thlrd state. See UNCTAD, World lnvrctment Reporf 2003: FDI Polidesfor Development: Natioml and Intermtiom1 Perspectives (United Nations: NewYork and Geneva, 2003) 102; see also WTO, Communicationfrom India, Working Group on the Relationship betweenTrade and lnvestment, (2 October 2002), Doc No.WT/WGTI/lSO [4], where India notes that, apart from a recent BIT between Japan and Korea, only the US and Canadian BITs or FIPAs require pre-establishment national treatment. According to UNCTAD n 158 above, 102, '[tlhe right to control admission and establishment remains the single most important instrument for the regulation of FDI.' India has argued in the WTO that non-industrialised states need to retain this capacity to screen investments: see WTO, Communicationfrom India, n 158 above [12]. UNCTAD n 158 above, 102. R. Bachand and S. Rousseau, International Investment and Human Rights: Political and Legal Issues: A Background Paper, Droits et Dtmocratie/Kghts and Democracy, (11 June 2003). 18 at http://
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Moreover, such BITs impose no obligations on foreign investors to respect human rights in the host state. Rather the TNCs are merely obliged to comply with the latter's national law.16' Non-industrialised states are less likely to have effective domestic regulatory mechanisms in place to ensure that foreign investors do not violate the human rights of their inhabitants or that the investment contributes to human rights supportive development.Where such states have entered into BITs they may subsequently be restricted by these treaties from introducing laws that may restrict the foreign investor's investment interests, even where the regulatory measures relate to health, environment, human safety or the protection of other human rights.'63 In addition, the right of investors under these treaties to take the host state to binding international arbitration for breach of a treaty provision can have a' chilling effect on states when they consider enacting legislation to respect, protect, promote or fulfil obligations relating to human rights [and] lawsuits [can] become effective pressure tactics for investors when a state's actions put their interest in jeopardy'.'64 So, in restricting the host state's capacity to regulate foreign investment through such agreements, home states cannot then maintain that it is the obligation of the host state to ensure that subsidiaries of foreignTNCs do not violate international human rights standards. In these circumstances it is arguable that, although the acts of a foreign subsidiary of a corporate national cannot be directly attributed to the home state, the latter exercises sufficient control over the parent company and has constructive knowledge of the potential for the subsidiary to violate human rights law to justify the imposition of an obligation to exercise due diligence in relation to the human rights impacts of such activity The obligation requires a state to take reasonable steps to ensure that such entities do not operate in violation of international human rights law even where such operations are conducted through a foreign subsidiary.This obligation would include, but not be limited to, a requirement that the home state enact domestic regulation, requiring human rights impact assessments, the subsequent mitigation of any such impacts, and the provision of a remedy in the home state's courts.
www.dd-rd.ca/site/YDF/publications/globalization/bachandusseauEng.pdf (last visited 5 March 2007). 162 See for example, Agreement between The Government of Canada and The Government of the Republic of Ecuador for the Promotion and Reciprocal Protection of Investments n 157 above. Articlc 13 of thc US 2004 Modcl BITsccks to imposc an obligation on thc statc partics to 'strivc to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, [domestic labour laws] in a manner that weakens or reduces adherence to the internationally rccognizcd [labour] rights'. Thc aim bcing, it would appcar, to prcvcnt statcs partics from lowcring the domestic standard of protection of labour rights to attract foreign investment. However, the provision only requires the parties to'strive to ensure'they do not weaken or derogate from the laws in question. In addition, it applies to existing domestic laws protecting a small range of labour rights that do not include the right to strike. Moreover, a party's only recourse for breach of such an obligation is to diplomatic consultations. See United States 2004 Model BIT, at http:// www.state.gov/documents/organization/38710pdf (last visited 5 March 2007). 163 R . Bachand and S. Rousseau n161 above and Schneiderman n 155 above. 164 ibid21. See also Schneiderman ibid, 771-772 and UNCTAD n 158 above, 111 and 139 note 35.
Non-State Actors and International Law Responsibility Beyond Borders CONCLUSIONS
It is clear that, under international human rights law, state obligations are not temtorially limited. The jurisprudence of the international human rights supervisory bocks has shown that states have extraterritorial human rights obligations where they exercise power, authority or effective control over individuals, or where they exercise effective control of an area of temtory within another state. Actions by non-state actors, includmg corporations, can be attributed to a state, and give rise to a state's responsibility under general international law, where an international obligation is breached (such as under a human rights treaty). The activities of a corporate national (and its subsidiaries) acting extraterritorially can be attributed to the home state where the corporation is exercising elements of governmental authority, or where it is acting under the instructions, direction or control of the state. A home state will also be responsible if it knowingly aids and assists in either a host state's internationally wrongful act relating to the activities of a home state's corporate national (or its foreign subsidiaries),or the extratenitorial acts of a corporate national (or its foreign subsidiaries) that constitute international crimes. Failure by a home state to exercise due diligence by, inter aka, regulating and monitoring the activities of corporate nationals in conflict zones and in host states with which a home state has ratified a BIT, may also give rise to international responsibility in cases where corporate nationals violate, or are complicit in violations of, human rights. Theimplications of these findings are significant both for the home statesof TNCs, which are usually industrialised states, and for theTNCs themselves. Home stateshave a duty to regulate the extraterritorialactivitiesoftheir corporatenationalsin anumber of circumstances.These include corporate nationals exercising elements of governmental activity, such as privatised corporations exercising state sanctioned activity, and corporationsacting under theinstructions, direction and control of the state, such as those corporations that provide support for extraterritorial mditary operations. In addition, states through their ECAs provide a wide range ofservices and financing to corporate nationals in relation to foreign investment. Home states must sufficiently screen, control and regulate such investment to ensure that they do not become complicit in internationally wrongful acts committed by host states in relation to investment by a foreign subsidiary of a home state corporate national, or in international crimes that corporate nationals either commit or in which they are complicit. Finally, where a home state does not exercise due diligence by regulating, controlling or otherwise taking steps to mitigate the human rights impacts of a foreign subsidiary of a corporate national operating in a conflict zone, failed state or repressive regime, or operating in a non-industrialised state with the protection of a BIT, it may breach its general obligation under international law not to cause harm in other states. In doing so it will incur international responsibility where such corporations violate, or are complicit in violations of, international human rights law. States should therefore establish a regulatory framework to govern and monitor corporate activity in such 10cations.'~~ In addition, states need to review 165 See G. Gagnon, A. Macklin and P. Simons n 144 above, 117ff, for a legislative template for the extraterritorial regulation of the activities of corporate nationals in conflict zones and repressive regimes.
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their BITSto ensure that the provisions of these treaties do not prevent host state parties from complying with their international human rights obligations or give rise to the potential for a violation of the home state's own human rights obligat i o n ~ . Failure ' ~ ~ to take such steps in all these cases could result in a finding before an international human rights tribunal that a home state has violated its human rights obligations, giving rise to intemational responsibility and further obligations to make reparations. Until such time as TNCs become directly legally accountable for their human rights impacts,'" ensuring that home states have some intemational responsibility for the extraterritorial actions of their corporate nationals gives states an incentive to strengthen 'the legal framework calling for the observance of human rights by non-state actors'.168States may also wish to explore the possibilities of making TNCs jointly responsible for any extraterritorial activities that violate human rights, in the same way as joint liability operates in some areas of national law.'69 The reality of the direct and indirect assistance by states to corporations operating extraterritorially is far broader and deeper than is expressed in The Constant Gardener. It is important that states are aware of this, as a garden has to be tended for weeds and corporate extratemtorial violations of human rights can be very strong weeds to unearth.
1 6 6 ~ ~ home h e state will also have the obligation ofinternational assistance and co-operation to allow other states to protect their human rights -see Article 2(1) ICESCR and the Committee on Economic, Social and Cultural Rights, Gcncral Commcnts 2 and 3, (1994) 1 I H R R 3-9. 167 It is doubtful that legally binding international human rights obligations for corporations will be developed, let alone implemented, in the near future. Both states andTNCs have expressed strong opposition to the U N Norms O n the Responsibilities ofEansationa1 Corporations with regard to Human Rights, n 6 above. Moreover, the U N Special Representative of the Secretary-General (SRSG) on the Issue of Human Rights andTransnational Corporations and Other Buiness Enterprises,John Ruggie, has dismissed the Norms as 'a distraction rather than a basis for moving the SRSCS mandate forward'. Whether or not Ruggie supports the possibility of legally binding obligations for corporatc actors, his dcclarcd approach of 'principlcd pragmatism' and proposal to 'map' corporatc legal, social and moral responsibilities suggests a determination of the status quo rather than the development of new binding international human rights obligations: see UNHCHR, 'Interim Rcport of thc Spccial Rcprcscntativc of the Sccrctary-Gcncral on thc Issuc of Human Rights and Transnational Corporations and Other Business Enterprises', (2006) U N Doc E/CN.4/2006/ 97.
168 A. Keinisch, n I3 above, 82. 169 See, for example, A. E.Yamin,'The Future in the Mirror: Incorporating Strategiesfor the Defense and Promotion of Econon~ic,Social and Cultural Rights into the Mainstream Human Rights Agenda' (2005) 27 H R Q 1200. The U N N o m s on the Responsibilities o f % 3 n s ~ t i o dCorporations and Othtr Business Entqrises with Regard to Human Rights, n 6 above, at [I] provide for primary and secondary responsibility of states and corporations respectively.
OVERCOMING NGO ACCOUNTABILITY CONCERNS IN INTERNATIONAL GOVERNANCE Erik B . ~luernel*
......................................................................... I . INTRODUCTION 141 I1. ACCOUNTABILITY IN INTERNATIONAL REGIMES .....................144 A . Democratic Accountability ................................................. 144 B . Moving Beyond Democratic Accountability ....................... 148 FUNCTIONS OF NGOS IN INTERNATIONAL I11. THEVARIED .............................................................................. GOVERNANCE 160 A . Policy Formulation ............................................................. 161 1 . Agenda-Setting ............................................................... 162 2 . Norm and Rule Formulation ........................................... 162 3 . General Participation and Lobbying ............................... 164 B .Administrative Duties ......................................................... 166 1. Certification .................................................................... 166 2 . Standard Setting .............................................................. 168 3. Training and Information Provision............................... 170 4 . Service Provision ............................................................ 172 5. Other Administrative Functions......................................174 C. Enforcement ....................................................................... 175 1. Arbitration and Mediation...............................................175 2 . Monitoring ...................................................................... 176 IV . REFININGTHE CRITIQUE: GUIDING NGO INVOLVEMENT ...... 178 A . Standardizing Procedures by Function .............................. 182 1. Political Functions .......................................................... 184 * Law Clerk. 200546. to the Honorable Kennit Bye. Eighth Circuit Court of Appeals; Law Clerk. 200445. to the Honorable Barefoot Sanders. Northern District of Texas; Member. 2003-04. Task Force on Access and Benefit-Sharing and Traditional Knowledge. United Nations Development Programme (UNDP); Vice.Chair. 200344. Committee on Environmental Law. New York County Lawyers' Association; Member. 200344. Standing Committee on Environmental Law. Association of the Bar of the City of New York; Editor.in.Chief. Fall 2003. N.Y.U. ENVTI. I,.J.; J.D., 2004. New York University School of Law; I would like to thank Professors Dick Stewart and Benedict Kingsbury for their comments on an earlier draft of this Article . This Article reflects the views of the author only and does not necessarily reflect the views of any of the author's institutional affiliates. their composite organs. or their staffs.
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2 . Administrative Functions ................................................186 3 . Enforcement Functions ................................................... 188 B. Harmonizing Domestic Procedures ...................................189 1. Representation................................................................. 192 2 . Accountability ................................................................. 194 3. Validity of Proffered Goals............................................. 195 4 . Veracity of Proffered Goals ........................................ 196 C. Implementation Issues ........................................................199 199 1. Cost ................................................................................. 2 . Feasibility........................................................................ 200 a . Regime Perspective ..................................................... 200 b . NGO Perspective ........................................................ 201 3 . Western Bias ................................................................... 201 4 . Moral Hazard ..................................................................204 5 . Regime Accountability ................................................... 204 V . CONCLUSION ........................................................................... 206
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NGO ACCOUNTABILITY CONCERNS
A
ccountability is the "new black" of international governance.' Fears of cooptation of governance by non-state, and therefore in
s o m e scholars' m i n d s , non-legitimate, a c t o r s p e r v a d e s t h e literature o n
accountability.* This critique of non-governmental organizations' (NGOs) participation in international governance regimes generally starts with the question: "Who elected the NGOS?"~This is a fair question to raise, but one which does not address the whole picture or normatively invalidate NGO participation in all circumstances. The current debate and literature over-emphasizes democratic accountability to the possible detriment of other available means of ensuring accountability in governance regimes.4 This Article posits the emphasis on elements such as elections and representativeness of governance actors as lone indicators of accountability is insufficient to justify participation 1. Governance is used throughout this Article in the narrow sense of governance WITHOUTGOVERNMENT: with governmental involvement. See generally GOVERNANCE ORDERAND CHANGEIN WORLDPOLITICS(Ernst-Otto Czempiel & James Rosenau eds., 1992) (discussing the broadening concept of governance beyond governments). It is therefore "a mode of governing that is distinct from the hierarchical control model characterizing the interventionist state. Governance is the type of regulation typical of the cooperative state, where state and non-state actors participate in mixed publidprivate policy networks." Renate Mayntz, Common Goods and Governance, in COMMON AND INTERNATIONAL GOVERNANCE 15, 21 (Adrienne GOODS:REINVENTING EUROPEAN Heritier ed., 2002). This is sometimes referred to as a public-private partnership arrangement, or "the formation of cooperative relationships between government, profit-making firms, and non-profit private organizations to fulfill a policy function." Stephen H. Linder & Pauline Vaillancourt Rosenau, Mapping the Terrain of the Public-Private Policy Partnership, in PUBLIC-PRIVATE POLICYPARTNERSHIPS l, 5 (Pauline Vaillancourt Rosenau ed., 2000). As a result, global governance is "rule making and power exercise at a global scale . . . [and] can be exercised by states, religious organizations, and business corporations. as well as by intergovernmental and non-governmental organizations." Robert 0. Keohane, Global Governance and Democratic Accountability, in TAMING GLOBALIZATION: FRONTIERS OF GOVERNANCE 130, 132 (David Held & Mathias KoenigArchibugi eds., 2003). 2. For the purposes of this Article, an NGO shall be defined in accordance with the United Nations' definition which notes an NGO as "any non-profit voluntary citizens' group which is organized on a local, national or international level." United Nations, http:llwww.un.orgldpi/ngosection/brochure.htm (last visited Aug. 9, 2005). 3. Kenneth Anderson, The Limits of Pragmatism in American Foreign Policy: Unsolicited Advice to the Bush Administration on Relations with International Nongovernmental Organizations, 2 CHI.J . INT'LL. 371, 379 (2001). 4. See Ruth W. Grant & Robert 0. Keohane, Accountability and Abuses of Power in World Politics, AM. POL.SCI.REV., Feb. 2005, at 1.
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in international governance and fails to recognize the importance of delegation as another legitimate source of a ~ t h o r i t y . ~ Most scholars treat NGOs as a homogenous group and base their theoretical and normative arguments around such a generalization, even when recognizing NGOs vary significantly on a number of levek6 This Article seeks to advance the literature on NGO accountability by unpacking NGOs by functional role in international governance and relating these roles to accountability theory. Failing to recognize these functional distinctions, many theories of NGO participation in international govern-
5. Robert 0. Keohane, Political Accountability 14-17 (paper presented to Conference on Delegation to International Organizations, Park City, Utah, May 3 4 , 2002); Robert 0. Keohane & Joseph S. Nye, Democracy, Accountability and Global Governance 1 (Harvard Univ. Politics Research Group, Working Paper No. 01-4, 2001), available at http://www.ksg.harvard.edu/prg/nye/ggajune.pdRobert E. Goodin, Democratic Accountability: The Third Sector and All 12 (John F. Kennedy Sch. of Gov't, Working Paper No. 19, 2003); Miles Kahler, Defining Accountability Up: The Global Economic Multilaterals (May 17-18, 2002) (working paper, presented at Miliband Conference on Global Governance and Public Accountability, London School of Economics) (arguing national governments have adequate institutional control over international institutions to which power is delegated). 6. Wide variations in NGOs' purposes, sizes, competencies, functions, membership structures, and funding sources, for example, impact the effectiveness of accountability mechanisms and counsel for greater specificity in establishing accountability mechanisms. For a discussion of somc of these wide NGO variations, see, for example, Benedict Kingsbury, First Amendment Liberalism as Global Legal Architecture: Ascriptive Groups and the Problems of the Liberal NGO Model of International Civil Society, 3 CHI.J. INT'L L. 183, 186 (2002); S. Tarrow, Transnational Politics: Contention and Institutions in International Politics, 4 ANN. REV. POL. SCI. 1 (2001) (noting sometimes NGOs are really state bodies in disguise to gain increased political influence); J.A. 281, 295Scholte, Civil Society and Democracy in Global Governance, 8 GOVERNANCE 99 (2002); Ngaire Woods, Global Governance and the Role of Institutions, in GOVERNING GLOBALIZATION 25, 28 (David Held & Anthony McGrew eds., 2002); John POL'Y,Sept.Micklethwait & Adrian Wooldridge, The Globalization Backlash, FOREIGN Oct. 2001, at 16 ("NGOs claim to represent global civil society. But nobody elects them."); David B. Rivkin, Jr. & Lee A. Casey, The Rocky Shoals oflnternational Law, 62 NAT'LINTEREST35, 37 (2001) ('NGOs are not elected, not accountable to any body politic.''); Jeremy Rabkin, international Law vs. the American Constitution-Something's Got to Give, 55 NAT'LINTEREST 30,37 (1999) ("NGOs never have to face voters or bear any sort of accountability."). The variations are important because, for example, increasing the openness or representativeness of governance structures may undermine accountability for nondecisions when deadlocks or "joint decision traps" occur (made more likely by the increased breadth of participation). See Fritz W. Scharpf, Coordination in HierarAND NETWORKS:ANALYTICAL AND chies and Networks, in G M S IN HIERARCHLES EMPIRICAL APPROACHES TO THE STUDYOF GOVERNANCE INSTITUTIONS (Fritz W. Scharpf ed., 1993).
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ance have missed the mark, focusing primarily on ensuring greater accountability of NGOs generally. This Article seeks to remove the debate regarding the provision of accountability from the level of the actor to that of f ~ n c t i o n .This ~ Article proposes the participation of NGOs in international governance should not always depend upon democratic accountability. Instead, the accountability required of these NGOs should depend upon the particular governance function they perform. As a result, the mechanisms used to achieve such accountability will necessarily vary by function. Part I1 begins with a discussion of accountability in international governance, establishing a general typology of accountability mechanisms.' Part I11 then describes some of the different functions performed by NGOs in international governance, providing examples of how such systems are arranged under existing frameworks and illustrating the relationship between the function performed and the accountability needed. Part IV seeks to refine NGO accountability theory by proposing a new model to guide NGO participation: one linking accountability to function. Part IV also identifies some concerns in implementing the theory. The Article concludes by calling for further research into the potential drawbacks of implementing this new framework so an appropriate balance between fairness, operability, and accountability may be reached in international governance.
7. While it may be argued the underlying assumption behind this framework is that it does not matter who governs, so long as appropriate accountability controls are enforced, this argument would be an over-extension of this Article's proposal. This Article does not seek to undermine the authority of State actors in international governance, nor does it suggest States are losing power in international governance. Rather, it questions the assumption that accountability mechanisms must be differentiated between authority delegated to administrative government agencies and authority delegated to non-state actors with sufficient controls to assure adequate accountability to the delegator. It is beyond the scope of this Article to evaluate whether, after establishing a baseline accountability requirement for a particular function, particular actors must be held to different standards based upon different levels of legitimacy as international governance actors. Normatively, such a differentiation seems questionable, since accountability mechanisms are designed to constrain power, whatever its form. These actor-based legitimacy concerns may better be dealt with through other forms of legitimization, rather than through accountability controls, but this Article does not take a position on this issue. 8. This categorization is based largely upon the work of Keohane, Grant, and Nye. See generally Grant & Keohane, supra note 4; Keohane & Nye, supra note 5.
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Although accountability is "an under-explored concept whose meaning remains e v a s i ~ e , "the ~ purpose of this Article is not to define the concept with any more lucidity than theorists who have come before; instead, it is to explore a new mode of analysis for how accountability mechanisms should be structured. Generally, an "accountability system is the set of accountability mechanisms, and their interactions, that characterize a given governance system."'0 Accountability implies information and the ability to sanction power-wielders for misbehavior: "[a]ccountability refers to relationships in which principals have the ability to demand answers from agents to questions about their proposed or past behavior, to discern that behavior, and to impose sanctions on agents in the event that they regard the behavior as unsatisfactory."" Accountability is important in international governance because "to a greater degree than domestic lawmaking, the international process suffers from an accountability deficit."'* A. Democratic Accountability Most theorists have defined and operationalized accountability by reference to democratic legitimacy, elections, and the sanction of removal as yardsticks of accountability and legitimacy.13Democratic accountability presumes the existence of a demos14 whose will can be measured.
9. Andreas Schedler, Conceptualizing Accountability, in THE SELF-RESTRAINING STATE:POWERAND ACCOUNTABILITY INNEWDEMOCRACIES 13, 13 (Andreas Schedler et NG al. eds., 1999) [hereinafter THE S E L F - & ~ ~ K NSTATE]. 10. Keohane, Political Accountability, supra note 5, at 9. 11. Id. at 3. See ulso John Dunn, Situating Democratic Political Accountability, in DEMOCRACY, ACCOUNTABILITY, AND REPRESENTATION 329. 335 (Adam Przeworski et al. eds., 1999). It is important to note the principals, or accountability holders, need not be the beneficiaries of the agents' actions. 12. Paul B. Stephan, The New International Law-Legitimacy, Accountability, Authority, and Freedom in the New Global Order, 70 COLO. L. REV. 1555, 1562 (1999). 13. This Article does not presume democratic legitimacy is the only or necessarily the appropriate form of legitimacy to which regimes and organizations should aspire. However, it is one of the norms discussed in this Article and representative accountability (often referred to as democratic accountability) is assumed throughout many of the discussions in this Article. 14. A demos is considered "a polity with members by . . . whom and for whom democratic discourse with its many variants takes place." J. H. H. Weiler, European NeoConstitutionalism: In Search of Foundationsfor the European Constitutional Order, 44 POL.STUD.5 17, 523 (1996). It has been referred to as "a sovereign authority that decides important political matters either directly in popular assemblies or indirectly through its
Non-State Actors and International Law NGO ACCOUNTABILITY CONCERNS While the existence of an international demos is a matter of significant contention,15 some authors have suggested cross-border and international issue- and function-specific demoi do exist.l6 Whether an international demos exists remains a debate. However, civil society registered its view on the matter in Seattle, proclaiming loudly through protests at the World Trade Organization meeting in 1999 that without abilities to relate civil society's views to the governing bodies of international legal regimes, those regimes may become less legitimate." This has led some to conclude a "democracy deficit" exists, necessitating greater accountability.'* This Article agrees democratic accountability may be important and necessary to ensure the legitimacy of governance regimes, but believes the uniform requirement of democratic accountability to be excessive. Instead, this mode of accountability should be required only when functions performed by NGOs relate to the representation of a particular populace.
representatives." Robert A. Dahl, Can International Organizations be Democratic? A Skeptic's View, in DEMOCRACY'S EDGES20 (Ian Shapiro & Casiano Hacker-Cordon eds., 1999). CIRCLE:POLITICAL COMMUNICATIONS IN 15. Compare PIPPA NORRIS.A VIRTUOUS POSTINDUSTR~AL SOCIETIES (2000) (generally arguing national identities are not sufficiently global to support a representative global demos) with DAVID BEETHAM, AND HUMAN RIGHTS137 (1999) ("[Tlhe demos that is democracy's subject DEMOCRACY has come to be defined almost exclusively in national terms, and the scope of democratic rights has been limited to the bounds of the nation-state."). 16. See Tanja Briihl, The Privatisation of International Environmental Governance, in PROCEEDINGS OF THE 2001 BERLINCONFERENCE ON THE HUMANDIMENSIONS OF GLOBALENVIRONMENTAL CHANGE: GLOBALENVIRONMENTAL CHANGE AND THE NATION STATE 371, 376-77 (Frank Biermann et al. eds., 2002), available at http:/lwww. glogov.org/upload/public%2Ofiles/pdflpublications/bc%2Oproceedings/bc200 1/bruhI.pdf. This is because a demos is defined by populations which, having a sense of trust and public spirit, engage in public discourse to recognize the existence of mutual rights and obligations of its members, reinforcing feelings of solidarity within the population. See Michael Ziirn, Democratic Governance Beyond the iVation-State: The EU and Other International Institutions, 6 EUR.J . INT'L REL. 183, 195-200 (2000). 17. Keohane & Nye, supra note 5, at 22. 18. E.g., Alfred C. Aman, Jr., The Limits oJGlobalization and the Future oJAdministrative Law: From Government to Governance, 8 IND. J . GLOBALLEGALSTUD.379 (2001). Other authors have argued even democratic decisions at the State level are often no longer "democratic" in so far as they create externalities on neighboring States' citizens who had no opportunity to participate in the decision-making. See Daniele ArchiPOLITICAL COMMUNITY: bugi, Principles of Cosmopolitan Democracy, in RE-IMAGINING DEMOCRACY 198, 204 (Daniele Archibugi et al. eds., 1998) STUDIESIN COSMOPOLITAN [hereinafter RE-IMAGININGPOLITICAL COMMUNITY]; David Held, Democracy and Globahation, in RE-IMAGINING POLITICAL COMMUNITY, supra at 11, 14.
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Levels of internal democratic accountability vary significantly between NGOS,'~and some have argued "the role of NGOs is not to be representative but to raise a~areness."~' However, the vast majority of NGO accountability scholars dealing with this issue evaluate NGO accountability based solely upon these internal control^.^' Their claim is NGO representatives generally are not elected by their memberships, and members typically are passive contributors who do not review or direct the NGOs' actions.22 However, this criticism of NGO democratic accountability tends to conflate internal and external a c c ~ u n t a b i l i t ~ The . ~ ~external democratic accountability charge is NGOs are only accountable to their membership, without allowing the beneficiaries a right to determine the NGO actions affecting them.24 However, both of these criticisms depend upon the norm of democracy to legitimate NGO involvement in international governance. This Article posits legitimate governance need not always be based upon the norm of democracy, especially of elections, but recognizes it may be an appropriate focus for certain functions.25 The external democratic accountability critique faces an additional problem: it does not justify requiring NGOs to represent the beneficiaries of its actions. Should a corporation be held accountable primarily by its shareholders or its consumers? The same issue applies here: members are the primary determinants of internal NGO accountability, while beneficiaries are rightly viewed as external accountability holders who at all times possess reputational controls, but who may possess greater rights to hold NGOs accountable depending upon the function performed by 19. See David Chandler, New Rightsfor the Old? Cosmopolitan Citizenship and the Critique ofstate Sovereignty, 51 POL. STUD.332,336 (2003). 20. Id. at 340 (internal quotation omitted). See also Johan Galtung, Alternative ModKEY DEBATES143, 155 (Barry Holelsfor Global Democracy, in GLOBALDEMOCRACY: den ed., 2000). 21. See Peter J. Spiro, The Democratic Accountability of Non-Governmental Organizations, 3 CHI.J. INT'LL. 161, 163 (2002). 22. Id. 23. See id. 24. A. Claire Cutler et al., The Contours and SigniJicance of Private Authority in International Affairs, in PRIVATEAUTHORITY AND INTERNATIONAL AFFAIRS333, 369 (A. Claire Cutler et al. eds., 1999). 25. Therefore, this Article does not go so far as some scholars as to suggest NGOs can claim legitimate representative rights over beneficiaries without being democratic or accountable to such beneficiaries. See Klaus Dieter Wolf, Private Actors and the Legitimacy of Governance Beyond the State, paper presented at ECPR Joint Session Workshop, Grenoble (2001), http://www.ifs.tu-dmstadt.de/fileadmin/pg/media~papers/civil. pdf.
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NGO ACCOUNTABILITY CONCERNS the organization. For instance, where the NGO claims to represent the beneficiaries in a lobbying activity, beneficiaries should have a stronger right to constrain NGO actions than where NGOs are merely establishing standards they believe will help certain populations.26 Although democratic accountability can be important, a leading democratic political theorist, Robert Dahl, noted, "international organizations are not and are not likely to be democratic."" Dahl suggests international institutions be analyzed as bureaucratic bargaining systems, not as democratic governance regimes.28This view has begun to take hold, as the traditional demos theory of legitimacy has largely been replaced by international relations theorists who break legitimacy into two basic components: input or institutional legitimacy, which is derived from democratic expressions of the affected public's and output or taskspecific legitimacy, which is based upon the effectiveness of actions taken to achieve normatively salient goals.30This Article posits accountability, recognized to contribute to legitimacy,31should undergo a similar dual analysis.32 Although traditional task-specific accountability analyses have focused on the effectiveness of governance outcomes,33this Article seeks to rede26. See id. 27. Dahl, supra note 14, at 32. 28. Id. 29. Institutional legitimacy can also be found through tradition and symbols. See Keohane & Nye, supra note 5. Since these forms of legitimacy are not readily encompassed within accountability structures or applicable to international institutions, they are not discussed in this Article. See id. 30. See Fritz W. Scharpf, Interdependence and Democratic Legitimation 2 (Max Planck Inst., Working Paper No. 9812, 1998), available at http:/lwww.mpi-fgkoeln.mpg.delpuiworkpapiwp98-2iwp98-2.ht FRITZ W. SCHARPF, GAMES REAL ACTORSPLAY:ACTOR-CENTERED INSTITUTIONALISM IN POLICYRESEARCH 153 (1997); OF LEGITIMACY AND INTERNATIONAL RELATIONS (1995); PENTTI SADENIEMI, PRINCIPLES see also Alan F . Fowler, Assessing NGO Performance- DifJiculties, Dilemmas, and a Way Ahead, in BEYOND THE MAGIC BULLET: NGO PERFORMANCE AND ACCOUNTABILITY IN THE POST-COLDWAR WORLD169 (Michael Edwards & David Hulme eds., 1996) Fereinafter BEYONDTHE MAGICBULLET] (arguing for performance-based analysis of NGOs to include output, outcome, and impact related measures); Debora Spar & James Dail, Of Measurement and Misslon: Accounting for Performance in Non-Governmental Organizatzons, 3 CHI.J. INT'L L. 171, 177-78 (2002) (discussing Fowler's performance analysis framework). 3 1. Grant & Keohane, supra note 4. 32. This follows Grant and Keohane's analysis of democratic and non-democratic forms of accountability. See id. 33. See, e . g , Ngaire Woods, Who Should Govern the World Economy: The Challenges of Globalization and Governance, 9 RENEWAL73, 78 (2001) ("The democratic
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fine the analysis to legitimize the performance of the tasks themselves through procedural mechanisms which promote both greater internal and external ac~ountability.~~ A task-specific approach makes clear not all tasks or functions need to be legitimized by governance outcomes even at the international level where the existence of a demos is heavily questioned. Varying combinations of input and output controls can promote legitimacy in different functional circumstances and, depending upon the mechanisms required, can promote democratic ac~ountability.~~ This Article does not propose a democracy- or delegatory-based accountability control system is appropriate in all cases,36but rather legitimizing controls will depend upon the functions performed. Accordingly, this Article posits the traditional emphasis on democratic principles to guide accountability controls is misplaced.37
B. Moving Beyond Democratic Accountability Although there has been a historic over-reliance on democratic controls, alternative measures to hold non-state actors accountable, such as profitability, are not necessarily appropriate or valuable yardsticks for determining NGO performance.38Basing their typology on a delegatory model of international governance, Keohane, Grant and Nye demonstrate the existence of multiple forms of internal and external accountability, though they question the ability of some of the mechanisms they describe to adequately hold some international governance actors accountable in
legitimacy of 'network governance' relies on a new way of conceiving of democracy which . . . shifts the focus from the 'inputs' of the decision-making system (i.e. elections and representative government) to the quality of the 'outputs' of the system."). 34. While authors have discussed procedural mechanisms in terms of internal accountability constraints, it may be equally applicable to external accountability, where stakeholders are not members of NGOs, but rather beneficiaries. See U.N. Dev. Programme, Human Dev. Report Office, Civil Society and Accountability 2 (2002), available (preat h t t p : / / h d r . u n d p . o r g / d o c s / p u b l i c a t i o n s / b a O O 2 . p d f pared by Mary Kaldor). 35. This combination of input- and output-based accountability controls exists even in the United States, widely hailed as a country with strong democratic accountability controls. See Keohane & Nye, supra note 5, at 6 7 , 26 (noting legal accountability might promote both input- and output-based legitimacy). 36. For a discussion of the need for an international demos to support democratic governance, see Ziim, supra note 16. 37. Grant & Keohane, supra note 4. 38. Spar & Dail, supra note 30, at 176. For different approaches to assessing NGO performance, see id. at 1 76 n. 12.
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certain circumstance^.^^ The grab bag of control mechanisms derived from the delegatory system of governance referenced by Keohane, Grant and Nye include fiscal, market, supervisory, legal, peer, market, reputational, and hierarchical accountability mechanism^.^^ Fiscal accountability, also known as financial conditionality, refers to the external controls which the individual or institution holding the purse string can exert over the governance a ~ t o r . These ~' controls include not only conditions a financier may impose upon an NGO, but also may include, inter aliu, national regulations preventing an NGO from engaging in for-profit activities or decisions made by individuals with conflicts of interests. Keohane and Grant suggest this form of accountability is particularly strong for NGOs which are highly dependent upon external grants and funding4*The necessity of financing for sustainability creates a competitive financing market, with NGOs seeking to carve out market niches and branding.43This competitive effect may cause NGOs to act like for-profit actors-similar to the situation in which NGOs compete for government contracts-and therefore may cause NGOs to act contrary to the interests of their memberships, their funders' interests, or their beneficiarie~.~~ Similar to fiscal accountability, market accountability, or the means by which NGOs obtain financing or membership in a competitive NGO environment, can also be a powerful external method to control runaway NGO behavior.45This form of accountability in the NGO context, however, is less compelling, as most NGOs create particular niche markets or brands, making their services less substitutable and thereby decreasing the likelihood perfect NGO markets for financing, services, or memberships exist. Supervisory accountability is another form of external accountability whereby those who have delegated authority to the NGOs may withdraw such authority or censure the NGOs for failing to follow instructions. In 39. Keohane & Nye, supra note 5, at 1-5: see also Grant & Keohane, supra note 4; Alfred C. Aman, Jr., Globalization, Democracy, and the Needtor a New Administrative Law, 49 UCLA L. REV. 1687, 1692 (2003) (arguing market accountability mechanisms may not be sufficient to ensure proper provision of some social services by non-state actors). 40. Keohane & Nye, supra note 5, at 4-5; Grant & Keohane, supra note 4, at 8. 41. Grant & Keohane, supra note 4, at 8. 42. Id. 43. Kaldor, supra note 34, at 24. OF NON-GOVERNMENTAL DEVELOPMENT 44. See DAVIDLEWIS,THEMANAGEMENT ORGANISATIONS: AN INTRODUCTION199-200 (200 1). 45. See Grant & Keohane, supra note 4, at 9-1 0.
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international governance this is a particularly powerful type of accountability mechanism, as evidenced by the adherence of the World Bank and IMF to the standards demanded by the Member States overseeing (and funding) their operation.46This form of accountability control is even more powerful for NGOs dependent upon government contracts and relationships for viability and financing. Another external constraint upon NGO behavior is legal accountability. Although this form of accountability has potency at the domestic level to prevent private inurement or other self-serving behavior of officers, at the international level, without greater harmonization, it will likely be fairly weak at ensuring ac~ountability.~~ Additionally, no international law governs the operation of NGOs. Rather, legal accountability in international governance might be considered contract accountability, whereby NGOs are required to follow the terms of a contract signed with other governance actors. Failure to abide by those terms could have the same individual and organizational consequences as those imposed by legal sanctions or penalties. This revised view of legal accountability in the international governance context indicates such constraints might be important for NGOs acting in a governance capacity. Peer accountability is how actors in a horizontal relationship with the NGO performing a governance function hold the NGO to certain standards of accountability. NGOs often act as coalitions to coalesce the necessary resources, expertise, and relationships to achieve particular funct i o n ~peer ; ~ ~accountability regulates the relationship between these partnerships to a certain extent. However, as discussed below, this form of accountability is questionable as a source of normatively justified constraints on actor behavior. Concerns of exacerbating representational imbalances through participation of unaccountable NGOs have caused some scholars to suggest the greater use of peer accountability mechanisms to ensure the appropriate representativeness of ~ ~ 0Thiss argument . ~ suggests, ~ however, it might be limited to a situation of network governance.50To the author's mind, 46. See id. at 8-9. 47. See id. at 9-12. 48. Id. 49. See Goodin, supra note 5, at 29-30. 50. Partnerships and linkages, especially with local groups, are crucial for the success E. KECK & KATHRYN SIKKINK, ACTIVISTS of many international NGOs. See MARGARET BEYOND BORDERS 23-29 (1998); Grant & Keohane, supra note 4. In such situations, the partnership has a normative right to hold members of the partnership (externally) accountable with respect to actions taken affecting the partnership. See Paul Wapner, De-
Non-State Actors and International Law NGO ACCOUNTABILITY CONCERNS peer review is rarely, if ever, a normatively satisfactory means by which to hold actors accountable, but is only a second- or third-best solution. Since peer organizations are only very indirectly affected by the actions of other similarly situated NGOS,~'their normative right to hold other NGOs accountable is limited at best (when not a partner in a particular governance function) and may be limited further based on the particular functions performed by NGOs. Additionally, little normative support is provided for the concept of using peer accountability mechanisms instead of other accountability controls in non-network governance structures. This is important because where NGOs perform actions similar to government entities, or replace what might otherwise be government activities, requiring less accountability assurances of NGOs than of government actors may present opportunities for game-playing and other self-serving activities. This Article does not directly oppose such theories, although it seemingly conflicts with existing theories of accountability which suggest different actors should not be required to meet the same accountability controls, relying upon (unequal) checks and balances as accountability controls.52 Rather, this theory suggests function, rather than actor, is how accountability controls should be e~tablished.~~ -
fending Accountability in NGOs, 3 CHI. J. INT'L L. 197, 202 (2002) ("Whenever an NGO links or otherwise collaborates with another, it opens itself up to scrutiny and evaluation. To the degree that NGOs find strength in doing so, however, accountability becomes part of the price of increased transnational effectiveness."). However, the right to hold actors accountable or impose sanctions upon those other organizations is normatively suspect. Funding competition may promote such self-serving behavior, but the right of these peer organizations to hold each other accountable is limited, since they do not purport to act on each other's behalf. 5 1. Other NGOs might be affected by the actions of a particular NGO through reputational effects on the NGO sector or as a result of information failures attributing improper NGO actions not exclusively to the offending NGO. See EUGENERARDACH,GETTING AGENCIES TO WORKTOGETHER: THE PRACTICEAND THEORYOF MANAGERIAL CRAFTSMANSHIP 144-46 (1998). Sole rehance on peer accountability mechanisms may, in fact, promote the creation of collusive networks. See Goodin, supra note 5, at 45. 52. See, e g.,Goodin, supra note 5, at 37-38. Goodin's analysis, however, often conflates internal and external accountability, making theoretical extrapolations from his argument difficult. See id. at 42. 53. This Article is open to the possibility the theory it propounds might require incorporation of the two theories insofar as actors performing a particular function would require particular accountability controls, though the exact form or extent of those controls might vary depending upon the actor. Practically, the form of accountability must necessarily vary by actor, as different procedural mechanisms are necessary to implement intended accountability controls. However, this Article considers the constraining effect on
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Reputational accountability is the least well-defined of the various accountability mechanisms laid out in Keohane, Grant, and Nye's typology. They recognize this form of accountability is often dependent upon, or even coterminous with, other forms of accountability, especially market accountability, though it is possible reputational effects may exist outside those of other accountability constraint^.^^ The argument goes: reputational forces regulate the extent to which NGOs must address internal accountability, since no exit barriers exist for members, and the NGO "markets" for membership are generally competitive.55Albert Hirschman, however, has shown the dangers of this reasoning. He notes where individuals can exit an organization's membership easily and join another organization; there is little incentive for the individual to use her voice to improve the organization.56Given the sheer number of NGOs, even in a particular issue area, competition between NGOs is not likely to significantly contribute to greater internal accountability. So long as a particular NGO captures the majority of an individual's preferences, the NGO may make a number of minor policy choices without membership support or fear of significant reprisal.57 Additionally, where members seek to hold their representative organizations accountable, there are significant barriers to entry, which come in the form of information costs.58An individual may have invested a sigactor behavior to be theoretically equivalent for all actors performing a particular function. Differential treatment based on type of organization, then, is justified only to the extent such treatment can equalize the ultimate level of accountability achieved across organizations performing the same governance function. This, however, would not justify, from a normative perspective, the use of different types of accountability controls to equalize total accountability; it would only justify a greater level of the same controls used to ensure accountability of other actors. 54. Keohane & Nye, supra note 5, at 17; Grant & Keohane, supra note 4, at 9. 55. See Spiro, supra note 2 1 , at 16344,166-67 (also noting some concerns regarding monopoly power may exist in certain circumstances). 56. ALBERT0 . HIRSCHMAN, EXIT, VOICE,AND LOYALTY:RESPONSETO DECLINEIN FIRMS,ORGANIZATIONS, AND STATES 84 (1970). 57. See generally Jonathan R. Macey, Packaged Preferences and the lnstitutional Transformation oflnterests, 61 U . CHI.L. REV. 1443 (1994). 58. Scholars on this topic have typically assumed basic, media-related monitoring is sufficient to achieve internal accountability, but this again conflates the issue of internal and external sovereignty to the extent it is assumed media-related monitoring is accurate and wholly accepted by the membership. See, e.g., Moises Naim, Lori's War, FOREIGN POL'Y, Spring 2000, at 28, 39. Spiro analogized NGO membership to corporate shareholder management (who can similarly enter and exit with relative ease) which Spiro claims is formally clear, but practically limited due to the high costs of monitoring and collective action problems. Spiro, supra note 21, at 165. But see Goodin, supra note 5, at
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nificant amount of energy into learning about an organization's activities, and after review of those activities, suggested new directions for the organization. If those suggestions fall on deaf ears, she may choose to leave. However, prior to joining an organization, she does not necessarily know whether it is highly representative without a significant amount of research. Additionally, in order for any organization to be held truly accountable by its internal membership through reputational mechanisms, the individual members must also incur significant information-gathering costs to learn about the organization's activities and then incur moderate participation costs. It therefore may be unrealistic to expect NGO competition alone would achieve greater internal accountability and representativene~s.'~ This is borne out in practice, where such competition exists, but few organizations are held accountable to their memberships directly, especially in lower-order decisions. While the competition issue is usually buttressed by assertions NGOs' claims to legitimacy depend upon self-regulation, or the creation of internal accountability m e c h a n i ~ m s this , ~ ~ approach falls short as a framework for establishing accountability. As an accountability control, competition establishes a reliance upon other, (generally) non-regime-related organizations to hold the participating NGOs to account.61 From both systemic and normative perspectives, this seems as undesirable as peer accountability mechanisms. Finally, NGOs might regulate themselves through the internal accountability mechanism of hierarchy. Individual officers and agents of an NGO are held accountable to standards established by the NGO's management and organizational structure. Failure to abide by the NGO's own standards may result in salary cuts or firing and therefore can act as significant deterrents to impropriety.62For instance, incorporation creates hierarchical internal accountability within the organization.63However, 7 ("[Iln the non-profit sector there is simply no equivalent to 'voters' in the state sector or 'shareholders' in the market sector."). The likelihood of media-related monitoring is perhaps even greater in the corporate context than in NGO context, so this argument seems to lack much merit. At best, Spiro's argument counsels for greater monitoring of corporate accountability when corporations are acting in democratic international governance schemes. 59. See Spiro, supra note 21, at 163. 60. See L. David Brown et al., Globalization, NGOs and Multi-Sectoral Relations 27 (Hauser Ctr. For Nonprofit Orgs., Harvard Univ., Working Paper No. 1, 2000). 61. Id. 62. See Goodin, supru note 5, at 5-7. 63. Id. at &7.
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while incorporation may control some rent-seeking behavior by individual officers, it does little to influence the behavior of a fly-by-night or otherwise wholly corrupt NGO. It does, however, create transparency and reporting obligations which may increase the cost of being corrupt and thereby increase accountability. As this cursory discussion illustrates, non-democratic accountability mechanisms exist. However, each method of control has its own unique strengths and weaknesses and range of applicability, all of which is often highly context- and function-dependent. Often, however, a particular action may be held to account by a number of different mechanisms. The task of the accountability holder is then to determine both the type and extent of the particular mechanism to be applied. This is no easy task. This Article seeks to begin this process by aligning particular governance functions to the type of accountability controls most appropriate from a normative standpoint. Although not definitive in its approach, the Article does suggest a prototypical framework which the author expects will require further refinement and development to make it fully operational. Although this Article breaks new ground in establishing a functionbased approach to accountability controls, some scholars have already illustrated some of the context-dependency of delegatory or nondemocratic accountability controls, noting, for instance, market and reputational accountability depend upon transparency for effecti~eness.~~ Despite these contextual concerns and prerequisites to effectiveness, many authors have seemed to assume the mere existence of these accountability mechanisms somehow means such mechanisms are sufficient to hold For instance, even Keohane has suggested NGOs actors accountab~e.~~ 64. See Thomas Hale, Managing the Disaggregation of Development: How the Johannesburg "Type II" Partnerships can be Made Effective 23-26 (2003), http://www.
wws.princeton.edu/mauzerall/wws402f~s03/JP.ThomasHale.pdf. 65. See Thomas Hale & Denise L. Mauzerall, Thinking Globally and Acting Locally: Can the Johannesburg Partnerships Coordinafe Action on Sustainable Development?, 13 J. ENVTL. DEV. 220, 226-29, available at http://www.wws.princeton.edu~mauzerall/ papers/Hale.Mauzerall.JED.final.pdf.Hale and Mauzerall argue reputational, market and, indirectly, financial accountability, can hold private partnerships accountable to a broadbased constituency of affected stakeholders. Id. See also Hale, supra note 64, at 22. However, they do not identify which stakeholders should have a right to hold the actors accountable or how they are affected or even relate to the accountability mechanisms assumed to be effective. Additionally, they undermine their own argument by recognizing "reputational and market accountability . . . does not work equally well on all types of actors. 'Brand-less' corporations, non-democratic governments, and projects with guaranteed funding sources are resistant to the kind of reputational and market enforcement powers the proposed regulatory regime would apply." Hale & Mauzerall. supra at 19;
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NGO ACCOUNTABILITY CONCERNS "are highly vulnerable to threats to their reputations."66 This Article argues even where contextual prerequisites can be met, accountability mechanisms are not necessarily appropriate or effective constraints on actor behavior when performing different functions. This is particularly important since "[a]ccountability is not a pure good" where more is necessarily better? and "the total possibilities for participation are inescapably constrained by the need to accomplish the institution's tasks."68 NGO involvement in global governance must be limited both by number and type of organizations in order to ensure governance occurs. While contextualizing these issues is difficult and should necessarily be beyond the scope of academic work such as this, the importance of this analysis is to reveal the level of generality and false grouping is standard practice in NGO scholarship and the need for a more functionbased analysis of accountability. The amount of allowable government support, for instance, should depend upon the particular functions performed by the NGO. Some political groups may receive government Hale, supra note 64, at 26. Hale and Mauzerall incorrectly understand Keohane and Nye's reputational and market accountability issues by linking them with funding, and also consider many of the accountability mechanisms discussed by Keohane and Nye to be "horizontal" forms of accountability. Hale & Mauzerall, supra. at 14-15, 19; Hale, supra note 64. at 22. However, despite Schmitter's definition of horizontal accountability as "the existence of permanently constituted, mutually recognized collective actors at multiple levels of aggregation within a policy that have equivalent capacities to monitor each other's behavior and to react to each other's initiatives," Philippe C. Schmitter, The STATE,supra note 9, at Limits of Horizontal Accountability, in THESELF-RESTRAINING 59, 61, this view of accountability is more akin to "checks and balances," see Guillermo O'Donnell, Horizontal Accountability in New Democracies, in 'I'HE SELF-RESTRAINING STATE,supra note 9, at 29, 39 (stating effective horizontal accountability requires state agencies with authority and autonomy, as well as a willingness to oversee, remedy, and sanction other agencies' unlawful actions), which are not technically accountability controls. See Grant & Keohane, supra note 4, at 7-9. Instead, horizontal accountability truly implies peer accountability. not accountability through the participation of multiple levels of affected stakeholders who may not be social equals. See Keohane, Political Accountability, supra note 5, at 20. In fact, "NGOs are weak compared to governments." Keohane, Global Governance and Democratic Accountability, supra note I, at 145. Although this Article does not discount the importance of transparency generally for ensuring accountability, it nevertheless does not support the exclusively project-based view of Hale and Mauzerall. Rather, this Article believes that both internal and external accountability concerns must be addressed equally for accountability and legitimacy to be ensured. 66. Keohane, Global Governance and Democratic Accountability, supra note 1 , at 148. 67. See Robert 0. Keohane, Commentary on the Democratic Accountability of NonGovernmental Organizations, 3 CHI.J . INT'LL. 477, 477 (2002). 68. Kingsbury, supra note 6, at 186 (citation omitted).
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funds while others do not; if an NGO is to lobby an international organization for a particular policy, is it appropriate to include political groups funded by States? Or should only fully independent groups be allowed to participate? The answers to these questions and others can and should vary based upon the function the NGO seeks to perform and the international regime's normative values. This Article seeks to establish a basic functional typology for establishing accountability controls for NGOs participating in international governance. Most prominent NGO scholars, including those demanding greater internal and external accountability controls, consider NGOs to be relatively weak institutional players. For instance, Keohane does not recommend strong accountability controls of "relatively weak NGOs," but notes "as a particular NGO gains influence, it can exert effects, for good or ill, on people not its members. At this point, it can be legitimately held externally accountable as other powerful entities operate in world polit i c ~ . "Keohane ~~ suggests such limited controls because he considers NGOs to be mere lobbyists.70This Article agrees with Keohane's passing comment regarding the increasing power of external accountability controls as an NGO gains influence, but takes a slightly different approach: as NGOs perform different functions, the level of power they wield over an international governance system changes, and therefore the strength of controls based on internal accountability and external accountability to the regime itself should vary according to the importance of its function and level of control over outcomes. External accountability to beneficiaries, on the other hand, should only be implicated where there is a possiDeparting from ble impact upon the choice or rights of benefi~iaries.~' most scholarship on NGO accountability, this Article seeks to determine which forms of accountability are appropriate when. As Keohane explains, "[Tlo establish that some accountability exists is not to reach a normatively significant conclusion. From a normative standpoint, the relevant question is whether a given set of accountability relationships is appropriate with respect to their type and extent."72 This theory extends the normative debate to the function of the actor as well, recognizing
69. Keohane, Global Governance and Democratic Accountability, supra note 1, at 148. 70. Id. 71. See THESTRUGGLE FOR ACCOUNTABILITY: THEWORLDBANK,NGOS, AND GRASSROOTS MOVEMENTS 12-17 (Jonathan A. Fox & L. David Brown eds., 1998). 72. Keohane, Political Accountability, supra note 5 , at 9.
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"the particular configuration of accountability mechanisms in individual institutions matters."73 Though accountability controls are necessary, both the form and strength of the controls should be, in the first instance, dependent upon the function which the NGO intends to perform, as opposed to analyzing the NGO itself (whether based upon a comparative power analysis or otherwise). NGO legitimacy in international governance is largely derived from claims of representation of under-served, disenfranchised, or otherwise disempowered populations.74 [NGO's] claims to a legitimate voice over policy are based on the disadvantaged people for whom they claim to speak, and on the abstract principles they espouse. But they are internally accountable to wealthy, relatively public-spirited people in the United States and other rich countries, who do not experience the results of their actions. Hence there is a danger that they will engage in symbolic politics, satisfying to their internal constituencies but unresponsive to the real needs of the people whom they claim to serve.75 This is especially acute since the United Nations (UN) defines NGOs as not-for-profit en ti tie^.^" From a normative standpoint, however, NGOs need not be externally accountable to the beneficiaries of NGO action, but rather only to its members (funders, etc.), unless the NGO is acting as a "public" operative arm of a governance regime or affects the rights or choices of its benefi~ i a r i e sThis . ~ ~ helps to resolve the problems arising when NGOs become
73. See Arthur Benz & Yannis Papadopoulos, Is Network Governance Democratic? Different Assessments for the National and International Level (Center for Democratic Governance, first draft, 2003), http://www.demnetgov.ruc.dk/conference/papers/HelsingoerAB-YPI .pdf. 74. See Anderson, supra note 3, at 378. Since the beginning of NGO involvement in international governance, however, NGOs have gained signiticant policy expertise and have gained a new source of legitimacy for involvement in international governance. 75. Keohane, Global Governance and Democratic Accountability, supra note 1, at 148.
76. See supra note 2. 77. See Brtihl, supra note 16, at 378 ("As long as private actors do not decide authoritatively on public policy, they neither have to have a democratic structure nor do they have to be elected by (sectoral) demoi.") (internal citation omitted). Although the definition of "authoritatively" is not clear. this Article agrees with Brtihl's proposition insofar as NGOs are not decision-makers. Where NGOs are decision-makers, even if part of a larger group of decision-makers, then NGOs should be held accountable under democratic accountability mechanisms. However, this Article does not argue such accountability should necessarily extend beyond its rncmbership.
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service providers on behalf of governance regimes but apply incorrect strategies, undermining the effectiveness of other approaches, or diverting funds away from other, more successful ones.78 In such circumstances, the regime must be accountable to the beneficiaries to some extent, and output-based legitimacy concerns contain some validity. However, the NGO's function, rather than its participation, is what determines the choices available to benefi~iaries.~~ Therefore, it does not matter for the beneficiaries who provides the service, but only the manner in which it is provided. Table I provides a basic overview of the typology established by this Article, which shall be developed in greater detail in Part IV.A.~'Political functions are those functions which generally involve some level of representation, and therefore require some modicum of democratic accountability to those represented, the level of which depends upon the level of representation needed and the influence over the process exerted by the NGO. Administrative functions, on the other hand, do not require democratic representation, as such actions are related to performing governance functions designed to improve the management of the governance regime. Representation of internal member interests is therefore correlated to that function, but can be achieved without necessitating democratic accountability; fiscal and hierarchical controls may achieve the needed efficiencies and spending controls to ensure good governance. At all times, however, NGOs are acting as delegated authorities, performing governance functions in lieu of the regime and are therefore primarily responsible to the governments sanctioning the NGO administrative actions. NGOs performing enforcement functions, depending upon the NGO's role in the enforcement process, must ensure accountability both to their memberships and possibly their beneficiaries, as well as to the regime generally. Authority under such a governance arrangement is less one of delegation, however, as NGOs are generally involved in an enforcement role to ensure independence and regime accountability to the global demos. The next Parts will discuss the relationship between
78. See Sonia Arllano-Lopez & James F. Petras, Non-Governmental Organisations and Poverty Alleviation in Bolivia, 25 DEV. & CHANGE555 (1994). 79. See David Held, Law ofstates, Law ofpeoples: Three Models of Sovereignty, 8 LEGALTHEORY 1 , 2 6 (2002). 80. See Grant & Keohane, supra note 4; Keohane & Nye, supra note 5. This table excludes market and reputational controls, since they are not imposed by the listed actors. Additionally, "hierarchical" subsumes all principal-agent relationships, including those of member or beneficiary representation.
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Table 1: Mapping Accountability Controls to NGO Governance Functions
FUNCTIONS
Information
ACCOUNTABILITY HOLDERS
/
hierarchical, fiscal
Limited
High: hierarchical
I
Limited to High: hierarchical. fiscal Limited: hierarchical. fiscal
Service Provision
I
Other Administrative Functions
I
I
I
hierarchical, fiscal
hierarchical,
I None to
I Limited
Limited
/
I I
legal, fiscal, supervisory, peer High: legal, fiscal, supervisory, hierarchical High
High: legal, fiscal, supervisory, hierarchical None to Moderate: supervisory
t Maybe: hierarchical
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the accountability needed, normatively appropriate accountability mechanisms, and the functions performed by NGOs in greater detail.
111. THEVARIEDFUNCTIONS OF N G O S IN INTERNATIONAL GOVERNANCE The deconstruction of accountability theory as applied to NGOs in the previous Part suggests accountability controls depend upon the functions undertaken by NGOs in international governance. Absent such a functional approach, NGOs participate in various governance functions without having duties to participate appropriately.81This Part discusses the varied functions NGOs perform in international governance to illustrate the complexity of the issue and the need for more nuanced accountability theories regarding NGO participation.82
81. Richard Devetak & Richard Higgott, Saving the Social Bond and Recovering the Public Domain, in THEMARKETOR THE PUBLICDOMAIN,GLOBALGOVERNANCE & THE ASSYMETRY OF POWER20 (Daniel Drache ed., 2001). available at http://www.yorku. ca/robarts/archives/pub~domain~pdf/apd~higgottfin.pdf. 82. NGO participation in international governance has blossomed in recent years and has taken many different avenues. See Kal Raustiala, The "Participatory Revolution" in International Environmental Law, 21 HARV.ENVTL.L. REV. 537, 538-39 (1997); Jonathan P. Doh & H. Teegen, Nongovernmental Organizations as Institutional Actors in International Business: Theory and Implications, 11 INT'L BUS. REV. 665 (2002). See generally A. Dan Tarlock, The Role of Non-Governmental Organizations in the Development of International Environmental Law, 68 CHI. KENTL. REV. 61 (1992). While some have distinguished between various different civil society actors based on purpose, function, and funding, limiting evaluation of NGOs to service provision and advocacy, this Article expands the analysis of NGOs to whenever they perform any of the functions associated primarily with non-NGO groups, including social movements, social organizations, and religious groups. See Kaldor, supra note 34, at 12 tbls. 1, 17, 19 (noting although distinct, social movements and social organizations may be considered NGOs). Additionally, the analysis set forth by Kaldor and others is an actor-based model, as opposed to a function-based model, and does not attempt to map different accountability controls to the different actors or functions pcrfonned. Similarly, other authors have discussed the role of NGOs in partnership arrangements with companies and in the creation of corporate codes of conduct or privately-created standards. See, e.g., Jonathan P. Doh & Terrence R. Guay, Globalization and Corporate Social Responsibility: How Nongovernmental Organizations Influencc Labor and Environrncntal Codes of Conduct (manuscript on file with Brooklyn Journal of International Law); Bas Arts, "Green Alliances" of Business and NGOs: New Styles of Self-Regulation or "Dead-End Roads?", 9 COW. SOCIALRESP. & ENVTL.MGMT.26 (2002); Adelle Blackett, Global Governance, Legal Pluralism and the Decentered State: A Labor Law Critique of Codes of Corporate Conduct, 8 IND. J . GLOB.LEGALSTUD. 401 (2001). See also U.S. DEP'T OF LABOR,THE APPAREL INDUSTRY AND CODESOF CONDUCT: A SOLUTION TO THE INTERNATIONAL CHILD LABORPROBLEM?124-207 (1996), available at http://www.dol.govlILAB/medialreportsl
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"[Public-private partnerships] can . . . be classified according to their purposes and function into one of three categories," either rule and standard setting, rule implementation, or service provision.83 This model, established by Borzel and Risse, is a very useful start to this Article's analysis, despite excluding an examination of NGO participation when performing political or lobbying functions.84 This Article follows the same basic process in categorizing NGOs by function, with some slight variations and greater detail. Despite this greater detail, of course, the following categorization by no means provides an exhaustive list of functions NGOs may perform in governance regimes, but it does provide a basic categorization and framework of NGO functions, thereby establishing a starting point for more nuanced discussions of NGO participation in international governance.
A. Policy Formulation Traditional scholarship on NGO participation in international governance has focused on NGO involvement in the creation of norms and policies. Thus begins this Article's function-based analysis. Although direct NGO involvement is "less frequent in the areas of international rule setting and implementation,"85it nevertheless exists and is likely to increase in the future.86NGOs performing these functions are often likened to Kaldor's analysis of social movements, which depend upon the ability to iiclplapparel1overview.htm; ENVTL. PROT. AGENCY,STATUSREPORT ON THE USE OF ENVIRONMENTAL I,ABEI,SWORT.DWTDE (1993); Tanja A. Btjrzel & Thomas Risse. PuhlicPrivate Partnerships: Efective and Legitimate Tools of Transnational Governance?, in COMPLEXSOVEREIGNTY:RECONSnTUTlNG POLITICAL AUTHORITY IN THE '~'WENTY-FIRST CENTURY195, 2 0 3 4 6 (Edgar Grande & Louis W. Pauly eds., 2004) (noting NGO involvement in the broad definition of governance through self-regulation in the shadow of hierarchy or regime-imposed rules and through independent self-regulation adopted by regimes). Privately-created standards later adopted by a governance regime are also beyond the scope of this Article, as NGOs creating such private standards were not part of what might be termed a public-private partnership in the formulation of those standards. See Borzel & Kisse, supra, at 204. 1 do not address these arrangements which, under a broad definition of governance, might be considered such. Rather. I restrict my analysis to NGO roles in formulating policies adopted by international governments and in international governance as it relates to government-sanctioned and authorized action intended to replace or assist a function otherwise performed by a government institution or its agent. See supra note 1. 83. Borzel & Risse, supra note 82, at 199 (noting public-private partnerships might be categorized by ways in which they regulate behavior). 84. See id. at 198. 85. Borzel & Risse, supra note 82, at 204. 86. See id. at 2 0 4 4 6 .
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mobilize members into action." This, in a sense, is a reliance upon the "market accountability" m e ~ h a n i s mAs . ~ ~will be shown in the following sections, there are a number of different functions falling within the broad category of policy formulation relying upon the purpose and representativeness of the NGOs seeking to perform those actions.
1. Agenda-Setting Agenda-setting is one of the most important governance functions an organization can perform, as it places items onto the table for discussion and analysis, initiating the possibility of governance changes.89Generally, agenda-setting functions are limited to State actors in international governance regimes. However, where NGOs are instrumental in the formulation of the overarching policy framework or where they are incorporated into a state's delegation directly, NGOs may have the ability to set the agenda for discussion. The World Conservation Union (IUCN) is the proto-typical example of this. The IUCN drafted the first version of the Convention of Biological Diversity and then was successful in setting the agenda of the Convention's negotiations.90 Agenda-setting is important for accountability purposes since whoever controls the agenda has control over the scope of the governance system and its ability to change over time. Self-interest may dominate such agenda-setting formulations, as actors with an interest in the status quo may reject change through the formulation of the agenda. 2. Norm and Rule Formulation
Norm and rule formation, or rule-setting, is the most contentious role NGOs play in international governance. Some suggest such a role im. ~ ' this Article does not tackle this plies a loss of State s ~ v e r e i ~ n t yWhile
87. See Kaldor, supra note 34, at 22. 88. Keohane & Nye, supra note 5, at 5. 89. Although awareness building is generally considered an agenda-setting function, this aspect of agenda-setting is evaluated in the general participation section below. For the purposes of this section, agenda-setting is limited to formalized processes by which participants in a governance regime place issues on the table for negotiation and action. See P.J. Simmons & Chantal de Jonge Oudraat, Managing Global Issues: An IntroducLEARNED3, 12 (P.J. Simmons & Chantal de tion, in MANAGING GLOBALISSUES:LESSONS Jonge Oudraat eds., 2001). 90. See Briihl, supra note 16, at 373. 91. See generally Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and the "Unregulated" Marketplace, 18 CARDOZO L. REV. 957, 958 (1996) (sug-
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1 63
issue, it does recognize NGO involvement in rule-setting can be legitimized. NGOs have successfully participated in rule-setting nationally,92 as well as in intergovernmental organizations and through independent
initiative^.^^ The extent of NGO involvement in rule-setting, like any other functional role an NGO might take, varies significantly. NGOs are primarily involved as rule setters through incorporation into official delegations, which has occurred in the nuclear non-proliferation treaty regime, for instance.94 However, NGOs might also be involved in rule-setting in their own right. Amnesty International was crucial in shaping the Convention Against Torture and in establishing the International Criminal Similarly, the lnternational Campaign to Ban Landmines had the right to make statements and table treaty language (though not to vote) during negotiations of the Convention on the Prohibition of AntiPersonnel and mines.^^ To a lesser extent, NGOs are involved in the World Trade Organization and help to shape its outcomes.97 A shining example of the role of NGOs in rule-setting is found in the World Commission on Dams (wcD).~* WCD consists of the World gesting that nations cede some sovereignty to non-governmental organizations such as the WTO). 92. See generally Philip J. Harter, Assessing the Assessors: The Actual Performance of Negotiated Rulemaking, 9 N.Y.U. ENVTL.L.J. 32 (2000): Cary Coglianese, Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Hurter, 9 N.Y.U. ENVTL. L.J. 386 (2001); Jody Freeman & Laura I. Langbein, Regulatory Negotiation and the Legitimacy Benefit, 9 N.Y.IJ. ENVTL.L.J. 60 (2000); Siobhan Mee, Comment, Negotiated Rulemaking and Combined Sewer Overflows (CSOS): Consensus Saves Ossification?, 25 B.C. ENVTL.AFF.L. REV.213 (1997). 93. See Briihl, supra note 16, at 373-74. 94. See Borzel & Risse, supra note 82, at 199. DECLARATION OF HUMAN 95. See WILLIAMKOREY,NGOS AND TFE UNIVERSAL RIGHTS:"A CURIOUS GRAPEVINE" ( 1998). 96. See Motoko Mekata, Building Partnerships Toward a Common Goal. Experiences of the International Campaign to Ban Landmines, in THETHIRDFORCE:THERISE OF TRANSNATIONAL CIVILSOCIETY 143 (Ann M. Florini ed., 2000). 97. See generally Daniel C . Esty, Why the World Trade Organization Needs Environmental NGOs, IW'L CTR. FOR TRADE & SUSTAINABLE DEV., available at http:Nwww.ictsd.orglEnglish/esty.pdf (last visited Aug. 29, 2005) (discussing the role of NGOs in the WTO, and arguing for expanded formal involvement). See also Peter Sutherland, The Doha Development Agenda: Political Challenges to the World Trading System-A Cosmopolitan Perspective, 8 J . INT'LECON.L. 363, 374 (2005) (discussing the WTO Secretariat's interest in creating a low-level partnership between the WTO and NGOs). 98. See Sanjeev Khagram, Toward Democratic Governance for Sustainable DevelFORCE: opment: Transnational Civil Society Organizing Around Big Dams, in THETHIRD
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Bank, national governments, private industry, and ~ ~ 0Although s . the ~ ~ WCD7s work is advisory, it is a powerful source of international "soft law."100Indeed, WCD has been nearly universally lauded as a successful experiment to involve NGOs in rule-setting without undermining the authority of the regime or stymieing negotiations and has led to high quality outcomes considered unattainable under different circ~mstances.~~' Norm and rule formation begs slightly different questions regarding NGO accountability than does agenda-setting. Here, representation of issues and interests is important to ensure organizational accountability to its membership, and in some cases, its beneficiaries. 3. General Participation and Lobbying The most widely recognized role of NGO participation in international governance is one of lobbyist.102NGOs are renowned for their ability to mobilize public awareness and opinion and catalyze action on particular issues. 103 This differs from the agenda-setting function insofar as NGOs do not have the right to set the agenda, but due to the force of NGO lobbying, issues are placed upon the agenda by other governance actors. Examples of NGO influence, both positive and negative, in international governance abound. NGO pressure is widely recognized as catalyzing the formation of the North American Commission on Environmental Cooperation (NACEC) under the North American Free Trade
THE RiSE OF TRANSNATIONAL CIVILSOCIETY83 (Ann M. Florini ed., 2000); see WORLD COMM'NON DAMS(WCD), PROJECTAND FINANCIAL REPORT(2001), available at http:// www.damsreport.orgidocs/wcdfinrpt.pdf.The WCD was replaced by the Dams and Development Program in September 2001. 99. Khagram, supra note 98, at 83. The WCD was established in 1998 under the sponsorship of the World Bank and the IUCN. WCD, Outline of the WCD: Introduction, http://www.dams.org/commission/intro.htm (last visited Aug. 20,2005). 100. See generally Kader Asmal, Introduction: World Commission on Dams Report, Dams and Development, 16 AM.U . INT'L L. REV. 141 1 (2001). 101. See WCD, supra note 98, at 2 ("Many felt that the contested nature of the dams debate would pull the Commission apart."); id. at 26 ("The multi-stakeholder process followed by the Commission led to recommendations for a new way forward that no single perspective could advocatc on its own."). 102. Simon Zadek and Murdoch Gatward, Transforming the Transnational NGOs: supra note 30, at 227. Social Auditing or Bust?, in BEYONDTHE MAGICBULLET, 103. Ann Marie Clark, Non-Governmental Organizations and their Influence on International Society, 48 J . INT'L AFF. 507, 510 (1995); Nancy Lindborg, Nongovernmental Organizations: Their Past, Present, and Future Role in International Environmental ENVIRONMENTAL TREATYMAKING5 (Lawrence SussNegotiations, in INTERNATIONAL kind et al. eds., 1992).
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Agreement (NAFTA),"~ for dismantling negotiations of the Multilateral Agreement on ~ n v e s t r n e n tand , ~ ~for ~ assisting in the creation of the Convention on the Prohibition of Anti-Personnel andm mines."^ Like the Kosovo Transition Council, which was comprised of political parties, religious leaders, and representatives of ethnic minorities, these interna-
tional governance discussions afforded NGOs the opportunity to influence State action, without providing any real political power to the ~ ~ 0 sThe . impact ' ~ ~ of NGO involvement in such lobbying situations depends upon the willingness of both the governance regime and the governance actors within the regime to listen to and adopt NGO positions. Lobbying activities are another political governance function which counsels unique accountability controls. Lobbying may or may not imply a sense of representation of affected persons, which may counsel external accountability to NGO beneficiaries, may only require internal accountability to ensure adequate member interest representation, or may require no representativeness, depending upon the issue and the purpose with which the NGO claims to act. There is little need, however, for external accountability to the regime, apart from perhaps ensuring participating NGOs do not knowingly provide false information or omit information, as the organization can dismiss NGO arguments quite readily.lo8
104. PIERRE MARC JOHNSON & AND& BEAULIEU, 'I'HE ENVIRONMENT AND NAP?'A: UNDERSTANDING AND hlPLEMENTINti THE NEW CONTINENTAL LAW2 (1996); Fredric Menz, An Environmental Policy for North America Post-NAFTA, NO. AM.OUTLOOK, Mar. 1994, at 11. 105. See generally Rodney Bruce Hall, Private Authorify: Non-State Actors and Global Governance, 27 HARV.INTI>. REV.2 (2005). 106. Jost Delbriick, Exercising Public Authority Beyond the State: Transnational Democracy and/or Alternative Legitimation Strategies, 10 IND. J. GLOBALLEGALSTUD.29, 41 (2003); Steve Charnovitz, The Emergence of Democratic Participation in Global LEGALSTUD.45,54 n.30 (2003). Governance (Paris, 1919), 10 IND.J. GLOBAL REPORTNO. 100: KOSOVOREPORTCARD 107. See INT'LCRISISGROUP,ICG BALKANS 28 (2000); INT'LCRISISGROUP,ICG BALKANS REPORTNO. 97, ELECTIONS IN KOSOVO: MOVING TOWARD DEMOCRACY? 2 (2000). 108. The circumstances surrounding the dismissal of NGO arguments may affect, either positively or negatively, the perceived legitimacy of the governance regime. Therefore, dismissal may not be so readily done for political reasons. However, the power to dismiss arguments does exist and can be exercised, especially if the regime's legitimacy is high.
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B. Administrative Duties Administrative duties differ from political activities because ruleimplementation is the function, rather than rule-setting. As noted above, NGO participation in rule-implementation is somewhat minimal, though less so than in rule-setting activities.lo9These governance functions have come to being as international organizations and networks have sought to regulate behavior, rather than simply establish norms to be implemented at the national level. This specificity has necessitated a more complex governance structure, and as a result of institutional or systemic capacities, has sometimes involved NGOs in the implementation of such regimes. The literature on NGO participation in international governance has focused little on NGOs acting in an administrative capacity. It is appropriate, however, to distinguish democratic and delegatory models of governance.ll0 NGOs performing the functions of a typical administrative agency in the domestic context have authority delegated to them by the international regime and therefore must be accountable to the regime. Questions regarding democratic representativeness of the NGOs themselves are less important, as proceduralizing the actions of agencies is the dominant accountability control applied in such circumstances, not the assurance of direct representation. However, greater representation is increasingly sought in administrative actions, though typically limited to the role of lobbyists or Advisory Councils, so concerns regarding representation may surface to a greater extent in the future. 1. Certification
A powerful role NGOs may play in the administration of international governance is certification of actors for participation in the regime itself. The power to enable participation is significant."' While this Article suggests a shared role in such an accreditation process between the regime, the State hosting the applicant organization, and an independent NGO dedicated to certification issues,112such a system is not always existent. For instance, the Framework Convention on Climate Change, under which the Kyoto Protocol on climate change operates, provides the op109. See discussion supra Part III.A.2. 110. See generally Grant & Keohane, supra note 4. 11 1. See Steve Charnovitz, Two Centuries of Participation: NGOs and International Governance, 18 MICH.J. INT'L L. 183,283 (1997). 112. See infra Part IV.C.5.
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portunity for NGO participation as a certification body, without significant co-regulation by the regime, though delegation authority is retained by the regime. Article 7.2(a) of the Convention provides the possibility NGOs may contract with the Conference of the Parties, where appropriate, to supervise and implement the
onv vent ion."^ Article
12.4 provides
the Conference of Parties with a clear mandate to establish guidelines for the certification of carbon sequestration and other projects under the Clean Development Mechanisms (cDM)."~ Article 12.9 gives the Executive Board authority to provide guidance on participation of various stakeholders, both governmental and non-governmental, in that certification process."5 The Board, as well as its "operational entities," which may include NGOs, could become a further compliance enforcement mechanism under the C D M . " ~As a result, Article 7.2(a) may provide NGOs the opportunity to act in an implementing role in the C D M . " ~ Here, the accountability issues relating to NGO involvement as certification entities are complex. External accountability to the regime is important, but excessive accountability to the regime might undermine the expression of, or adherence to, stakeholder interests which the CDM 113. United Nations Framework Convention on Climate Change art. 7.2(a), May 9, 1992, 1771 U.N.T.S. 107 [hereinafter UNFCCC]. Additional opportunities for non-State participation in the Kyoto Protocol were also suggested for consideration, but have not yet come to fruition. See Chiara Giorgetti, From Rio to Kyoto: A Study of the Involvement of Non-Governmental Organizations in the Negotiations on Climate Change, 7 N.Y.U. ENVTL.L.J. 20 1, 2 13 (1999). See also Report of the Subsidiary Body for Scientific and Technological Advice, IJNFCCC, 2d Sess., Provisional Agenda Item 7, at 11, U.N. Doc. FCCCISBSTAI199614 (Feb. 2, 1996) [hereinafter Subsidiary Body Report] (pushing the consideration of greater NGO participation). Since most of the proposed requirements depend upon host country implementation, as opposed to the CDM administrative structure, they are not addressed in this Article. Id. at 6. See also Peggy Rodgers Kalas & Alexia Herwig, Dispute Resolution Under the Kyoto Protocol, 27 ECOLOGY L.Q. 53, 128 (2000) ("Where dispute settlement regimes and international tribunals deny access to non-State actors, the ability of domestic courts to decide disputes under international law and to enforce their decisions domestically is particularly salient."). 114. Kyoto Protocol to the United Nations Framework Convention on Climate Change art. 12.4, Dec. l I, 1997, 37 I.L.M. 22,38 (1998) [hereinafter Kyoto Protocol]. The CDM authorizes developed countries to purchase carbon sinks and other nature-preserving or enhancing projects in order to decrease their total greenhouse gas emissions and achieve their greenhouse gas reduction targets. 115. Id. art. 12.9. 116. See Catherine Regdwell, Non-Compliance Procedures and the Climate Change INTERConvention, in GLOBALENV'T INFO. CTR., GLOBALCLIMATEGOVERNANCE: THE KYOTOPROTOCOL AND OTHER MULTILATERAL REGIMES~ h 3.. at LINKAGES BETWEEN 22 (1998), available at http://www.geic.or.jp/climgov/O3.pdf. 1 17. See supra text accompanying notc 1 13.
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seeks to support.118Despite this, internal representation seems of little importance, as does external accountability to beneficiaries, since such representation would disfavor other relevant interests.
2. Standard Setting NGOs are involved on a somewhat limited basis in actual standard setting in the administrative context. However, where NGOs do have such authority, the power they wield is tremendous. While the majority of scholars treating this subject focus on private standards (adopted later by international regimes, domestic governments, or industry),119this Article deals only with those standards established by NGOs through a public international governance system. While limited in its analysis, this Article does not agree with most scholars who posit that the International Organization for Standardization's (ISO) standards are completely informal and private. Instead, this Article views IS0 as somewhere between wholly informal and formal, since its members come from national standards bodies,'20 but are not exclusively comprised of government entities.12' For instance, the American National Standards Institute, a member of ISO, is comprised of government and non-governmental
118. UNFCCC, supra note 113, art. 4.l(i). 119. See, e.g., Colin Scott, Private Regulation ofthe Public Sector: A Neglected Facet ofContemporavy Governance, 29 J. LAW& SOC'Y56, 74 (2002) ("[Many] non-statutory private regulators operate complete regimes in the sense of having the capacity to set standards, to monitor and enforce without the intervention of other organizations. Where this is the case, they wield more power than those public regulators which are constrained by the need to follow standards set by legislatures or government departments and to pursue litigation in order to apply legal sanctions. There is thus a remarkable concentration of private power over public organizations. This is perhaps most striking with those private regulators operating internationally whose judgments on such matters as financial or fiscal credibility, probity or greenness significantly affect decisions of notionally democratic governments."). See also Peter M . Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 INT'L ORG.NO. 1, at 1 (1992). Such regulation may be desirable to promote international harmoni~ation,make transactions more secure, avoid harsher command-and-control type regulation, or to respond to market accountability forces. See Virginia Haufler, Private Sector International Regimes, in NON-STATE I Y IN THE GLOBAL SYSTEM121, 127 (Richard A. Higgott et al. eds., ACTORSAND AUTHORI 2000). 120. See JAMES R. EVANS& WILLIAM M. L ~ S A YTHE , MANAGEMENT AND CONTROL OF QUALITY 488 (3d ed. 1996). See also Karstin Ronit & Volker Schneider, Global Governance Through Private Organizations, 12 GOVERNANCE 243 (1999). 121. Haufler, supra note 119, at 127.
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organization^.'^^ Therefore, this Article views the I S 0 standards as nonbinding standards created through public-private partnerships and therefore within the purview of this Article. A more powerful example of NGO involvement in standard-setting, however, is the International Labour Organization (ILO). The ILO, an inter-governmental organization designed to protect workers from exploitation and poor working conditions, provides a role for NGOs, primarily trade unions, in standard-setting.'23 For example, NGOs worked as members of the ILO to pass the ILO Minimum Age Convention No. 138 regarding child 1ab0r.I~~ This Convention has been ratified by approximately 141 countries, some of which have a history of using very young child 1ab0r.I~~ The actual impact NGOs have on the content of these standards is uncertain.'" However, State delegations include four members: two representatives from government, one representative of employer interests, and one representative of worker interests.'27 Each deligate is provided an individual right to vote, so NGO votes do matter.'28 While many of the 1LO's standards are non-binding recommendations, including codes of conduct, resolutions, and declarations, these standards 122. Lee A. Tavis, Corporate Governance and the Global Social Void, 35 VAND. J . TRANSNAT'L L. 487,50647 (2002). 123. See About the ILO, http://www.ilo.or~public/english/about/ (last visited Aug. 29, 2005). 124. ILO Convention Concerning Minimum Age for Admission to Employment (C138), June 26, 1973, 1015 U.N.T.S. 297. See also ILO, Subregional Office for Southem Africa: SKO-Harare, Child Labour: Background Paper. http:llwww.ilo.orglpubliclenglisWregionlafprolmdthararelaboutlchildlabour.htm (last visited Aug. 20, 2005) ("As is the case with all ILO standards, Convention No. 138 is the outcome of a tripartite standard setting procedure, involving Governments, as well as Employers' and Workers' Organizations."). 125. See 11,O: II,OLEX Database on International Labour Standards, http:llwww.ilo. org/ilolex/cgi-lex/ratifce.pl?C138 (last visited Aug. 20, 2005): Frank RenC Lopez, Corporate Social Responsibility in a Global Economy Ajfer September I I : Projits, breedom, and Human Rights, 55 MERCER L. REV. 739, 774 (2004) (noting how many countries OF INT'L LABORAFF.,U.S. DEP'T OF have ratified various 1LO conventions); BUREAU LABOR,BYTHE SWEAT AND TOILOF CHILDREN: EFFORTS TO ELIMINATE CHILD LABOR.ch. 111, tbl. 111-1 (1998), http:llwww.dol.govlilabhedia~reportslic1pl~~eat5/toc.htm (last visited Sept. 3, 2005). 126. See Borzel & Risse, supra note 82, at 202-03; Charnovitz, supra note 111. at 21619. 127. Constitution of the International Labour Organization art. 3, para. 1, June 28, 1919, available at http:llwww.ilo.orglpubliclenglishiabout/iloconst.htm. 128. See id. art. 4, para. 1.
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do have the weight of "soft law."129Disputes regarding the definition of many of these voluntary standards are interpreted by the 1 ~ 0 . l The ~ ' ILO is also involved in the creation of treaties, which establish binding labor and workplace standards, though its role is largely limited to lobbying and agenda-setting in treaty form~lation.'~~ While the ILO is not the only body establishing international corporate codes of conduct, it is the most influential source of "soft law" regarding labor and workplace standards and has the unique ability to enforce its codes.'32As a result, accountability is important to ensure proper NGO participation in the ILO standard-setting. While the level of external accountability to the regime is less important when the regime can ensure countervailing interests are represented in the standard-setting process, external accountability to beneficiaries and internal accountability to members may be important to ensure a fair and balanced standard-setting process. 3. Training and Information Provision
Training administrators and others is a well-known role of NGOs in international governance. capacity-building organizations working with the UN Development Programme, for instance, focus on interorganizational learning and training,'33 serve as experts to governance actors,'34 and gather information. These NGOs often act in an advisory capacity for international governance regimes, serving as "epistemic
129. See, e.g., Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, adopted by Governing Body of the International Labour Office, International Labour Organi~ation,204th Sess. (1977), http://www.ilo.org/public/english/ standards/nom/sources/mne.htm#added, revised, Codes of Practice, International Labour Organization (2002), http:l/www.ilo.orglpublic/english/standardslnom/sources/codes. htm. See generally Mary Ellen O'Connell. The Role of Soft Law in a Global Order, in COMMITMENT AND COMPLIANCE:THE ROLE OF NON-BINDING NOMS IN THE INTERNATIONAL LEGALSYSTEM 100, 100-14 (Dinah Shelton ed., 2000). 130. See Doh & Guay, supra note 82, at I 1. 131. See About the ILO, supra note 123. 132. See Doh & Guay, supra note 82, at 11-12, 18 (discussing the OECD 1976 Guidelines for Multinational Enterprises, which was revised in 2000 to allow NGO consultation, and the Global Compact, which provides an NGO role in monitoring compliance). 133. See Brown et al., supra note 60, at 18. 134. L.E. SUSSKIND,ENVIRONMENTAL DIPLOMACY: NEGOTIATING MORE EFFECTIVE GLOBALAGREEMENTS 49-53 (1 994); Steve Charnovitz, Participation of Nongovernmental Organizations in the World Trade Organization, 17 IJ. PENNJ. INT'L ECON.L. 331, 335-39 (1996).
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communities" in policy f o r m ~ l a t i o n . In ' ~ ~fact, "[slince 1993, the number of states that have appealed to NGOs as ad hoc experts in procedures and development of international agreements has increased tremendously."'36 The United States, for instance, incorporates NGOs into international policy making through the Federal Advisory Committee Act (FACA), which provides a role for NGOs to advise United States representatives on international policy issues and ensure appointments to federal committees are "fairly balanced in terms of the points of view represented."I3' While the participation of NGOs as members of a policy Advisory Council is limited and controlled by other governance actors, usually State delegation^,'^^ such participation, when it does occur, can be quite infl~entia1.l~~ Indeed, these committees have often engaged in important international regulatory negotiations, also known as "reg-neg." It has even been claimed NGO advisors determine much of World Bank The UN system of Working Groups is probably the best example of the involvement of NGOs in Advisory Councils. Working Groups are commissioned to review technical details of a proposal or provide information and guidance in relationships with particular groups, including indigenous communities, women, children, and other^.'^' While these
135. See generally Haas, supra note 119. 136. Mariella Pandolfi, Contract of Mutual (1n)DifSerence: Governance and the Humanitarian Apparatus in Contemporary Alban~aand Kosovo, 10 IND. J . GLOBALLEGAL Srrm. 369,372 (2003). 137. 5 U.S.C. app. 2 $ $ 5, 10 (1972). See, e.g.. 7 U.S.C. $ 5843 (2001). See also Cargill, Inc. v. United States, 173 F.3d 323 (5th Cir. 1999); Press Release, Earthjustice, Federal Court Orders Bush Administration to Add Environmental Representative to Chemical Trade Advisory Panel (Jan. 21, 2003), http://www.earthjustice.org/news/display. html?ID=53 1. 138. For instance, the chair of any advisory committee is usually a government representative who has the authority to choose representatives. See, e.g., 7 U.S.C. jj 5843 (2001). Further. all interests need not be represented equally to meet the FACA. 60 Comp. Cien. 386,387 (1981). 139. See Charles C. Caldart & Nicholas A. Ashford, Negotiation as a Means ofDeveloping and Implementing Environmental and Occupational Heulth and SaJety Policy, 23 HARV.ENVTL.L. REV. 14 1, 14344, I64 (1999) (discussing an OSHA advisory committee's negotiated rulemaking for coke oven emissions and noting that often such negotiated rulemaking occurred under the auspices of the FACA). 140. See Citizen's Groups. The Non-governmental Order. ECONOMIST,Dec. 11, 1999, at 20, 21 ("From environmental policy to debt relief, NGOs are at the centre of World Bank policy. Often they determine it."). 141. See Office of the United Nations High Commissioner for Human Rights Homepagc, http://www.ohchr.orgienglishlissues.index.htm (last visited Aug. 25, 2005); Officc
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Working Groups operate outside the purview of official UN policy making circles, they report to various UN committees and have substantial legitimacy.142Membership on these Working Groups is therefore highly prestigious, especially since Working Groups are treated as insiders in the UN system, are accorded significant access privileges, and may wield significant power as expert bodies. The level of Working Group influence varies by committee and issue, but can be quite powerful and frame entire negotiation processes, formulate draft texts, or even reject negotiated s o ~ u t i o n s . ' ~ ~ In the case of Advisory Councils or training activities, the accountability question is about who has the right to provide information or be treated as experts. There are also questions related to the quality of the information provided. All of these concerns tend toward issues of competence, rather than issues of representation. Accordingly, participation in Advisory Councils represents a functionalist approach to international governance and must be cordoned through delegatory models of accountability. For accountability purposes, this is the least problematic of the administrative functions an NGO may perform. Accountability concerns focus mainly around the production and content of information, ensuring the information is full, fair, and accurate.'44 As such, training and information is supposed to be largely objective, and concerns about representativeness are limited. More important is external accountability to the organization to ensure it is not misled by the NGO providing the information. 4. Service Provision Some authors have categorized NGOs partially by function, classifying them as operational- or advocacy-oriented.'45However, the classification of the United Nations High Commissioner for Human Rights, Fact Sheet No. 27: Seventeen Frequently Asked Questions about United Nations Special Rapporteurs, available at http:llwww.hrilcdfortherecordCanadddocumentationlother/sheet27.htm (last visited Oct. 12, 2005); Working Group on Indigenous Populations Homepage, http:/lwww. unhchr.chlindigenous/mandate.htm(last visited Aug. 25, 2005). 142. See Fact Sheet No. 27, supra notc 141. 143. See, e.g., Lori A. Nessel. "Willful Blindness" to Gender-Based Violence Abroad: United States' Implementation of Article Three of the United Nations Convention Against Torture, 89 MINN.L. REV. 71, 90 n.72 (2004) (noting the involvement of a Working Group in the formulation of the Convention Against Torture). 144. See Wapner, supra note 50, at 203. 145. Leon Gordeneker & Thomas G. Weiss, Pluralizing Global Governance: Analyti3640 cal Approaches and Dimensions, in NGOS, THEUN, AND GLOBALGOVERNANCE
Non-State Actors and International Law NGO ACCOUNTABILITY CONCERNS of NGOs as operational is limited primarily to the deployment of serv i c e ~ . 'While ~ ~ the preceding sections have illustrated howNGO involvement in the enforcement of international governance systems extends beyond the simple deployment of services, service provision by far constitutes the main avenue o f NGO partk;pat;on in the enforcement and furtherance of international governance systems.'47 NGOs are good actors in this capacity as they are generally more responsive to beneficiary needs than government institutions. However, they may be less accountable than government institutions in the delivery of those services.'48In fact, [ilt's not as if there is a long list of parties able to deliver medical aid in Chechnya, or run refugee camps in Congo, or vaccinate children in southem Sudan. Whatever the rest of their political agendas, intemational NGOs are often not only the best positioned to do these jobs, they are the only organizations with any possibility of doing them.'49 It is often argued NGOs are best able to provide development assistance and non-profit services such as community health care and the for populations unable management of natural reso~rces'~~--es~eciall~ to pay since they do not fall neatly within any particular category ser(Leon Gordeneker & Thomas G. Weiss eds., 1996); P. van Tuijl, NGOs and Human Rights: Sources ofJustice and Democracy, 5 .I.INT'LAFF.493 (1 999). 146. See Doh & Guay, supra note 82, at 3. 147. In fact, sixty-seven percent of European Union (EU) aid and five percent of Organization of Economic Cooperation and Development (OECD) development aid goes directly to NGOs for the provision of services. See NGOs: Sins ofthe Secular Missionaries, &ONOMlST, Jan. 29, 2000, at 25 (noting the EU's development aid figures); Edwards & David Hulme, Introduction: NGO Performance and Accountability, in BEYOND THE MAGICBULLET.supra note 30, at 3. See also Jody Freeman, Private Parties, Public Functions and the New ildministrative Law, 52 ADMIN.I,. REV. 813 (2000); Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV. 543 (2000). NGOs assuming public functions through contract have received significant attention from scholars, who fear the blurring of lines between the public and the private. See, e.g., Anthony Bebbington & John Farrington, Governments, NGOs and Agricultural Development: Perspectives on Changing Inter-Organisational Relationships, 29 .I.DEV. STUD. 199, 212-14 (1993) (Eng.) (discussing the potentially problematic consequences of NGOs' expanding roles within private and public institutions). See also Aman, supra note 39, at 1704-08. FOR 148. See generally STEVENRATHGERSMITH& MICHAELI,IPSKY, NON-PROFITS HIRE:THEWELFARE STATEIN AN AGEOF CONTRACTING (19%). 149. Anderson, supra note 3, at 375. 150. See, e.g., Zadek & Gatward, supra note 102, at 2 2 9 3 9 ; Goodin, supra note 5, at 3 4 ; J. Fisher, Is the Iron Law of Oligarchy Rusting Away in the Third World?, 22 WORLDDEV. 129 (1994) (Can.).
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viceable by the government.I5' This view is generally held because selfselection of personnel and NGO purpose statements serve to create organizations with officers having altruistic motivations, giving greater assurance they will carry out the provision of public goods and other public interested actions with less rent-seeking relative to other organization~.'~~ However, when non-profits compete for public contracts with forprofit entities, the competitive process may cause non-profits to act similarly to for-profit en ti tie^.'^^ Despite this concern, "[s]ervice providers accrue government funding largely on the basis of client choices rather than on the basis of competitive tendering for contracts providing blocks of funding from government."'54 Additionally, when acting as contract agents, NGOs generally have performance requirements built into the public service contract^.'^^ This illustrates a distinct subject of accountability: results- or outcome-based accountability. Principal-agent accountability issues are also raised when NGOs provide services. In such arrangements, NGOs are held externally accountable by the governments or international governmental organizations with whom they ~ o n t r a c t , ' ~ ~ and by the beneficiaries who seek to ensure the services fblfill their needs, and internally accountable by their members, who determine the manner through which the services are provided. 5. Other Administrative Functions
NGOs might also perform other, more difficult to categorize, administrative functions. For instance, the World Conservation Monitoring Unit compiled State data on trade in endangered species and prepared reports regarding such data, implementing the Convention on International
15 1. See SMITH& LIPSKY, supra note 148, ch. 6. 152. See Goodin, supra note 5, at 21-22. 153. See id. at 3. See also Brown et al., supra note 60, at 16-17. 154. Goodin, supra note 5, at 42. However, competitive bidding processes do exist in a number of circumstances. See id. 155. Id. at 31. 156. See generally Richard Mulgan, Contracting Out and Accountability, 56 AUSTL.J. PUB.ADMIN.106 (1997); Elizabeth Palmer, Should Public Health Be a Private Concern? Developing a Public Service Paradigm in English Law, 22 OXFORDJ. LEGALSTUD.663 (2002); Martha Minow, Public and Private Partnerships: Accounting for the New Religion, 116 HARV.L. REV. 1229 (2003); Paul L. Posner, Accountability Challenges of ThirdA GUIDETO THE NEWGOVERNANCE Party Government, in THETOOLSOF GOVERNMENT: 523 (Lester M. Salmon & Odus V. Elliott eds., 2002).
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Trade in Endangered Species (cITEs).'~' Though taking a more involved administrative role, the Internet Corporation for Assigned Names and Numbers (ICANN) has taken on similar duties. ICANN allocates and assigns internet space, manages top-level domain names (e.g., .corn, .org, and other generic and country-code top level domains), and manages root servers. Although ICANN is largely considered the provision of private standards, domestic governments are involved in the process of establishing the standards, thereby making the process a quasi-public-private partnership.158Accountability for these administrative activities will depend upon the functions performed, but is expected to be primarily based on external accountability controls to the regime, with minimal representational concerns or internal mechanisms needed.
C. Enforcement While the involvement of NGOs in standard setting and general administrative duties of international organizations is currently relatively low (though likely to increase in the future), NGO involvement in the enforcement of established codes has been characterized as moderate in scope and nature.159 1. Arbitration and Mediation Private arbitration is a major way international regimes are enforced. Many international treaties and regimes provide the opportunity for litigants to pursue arbitration as either the sole remedy or one of a litany of potential remedies for violation of provisions of those instrument^.'^^ The leading international arbitration organization providing for the settlement of these disputes is the International Centre for the Settlement of Investment Disputes ( I C S I D ) , ' ~which ~ is an "autonomous international organi-
157. See Edith Brown Weiss, The Five International Treaties: A Living History, in ENGAGNGCOUNTRIES: STRENGTHENING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL ACCORDS 89, 109-1 1 (Edith Brown Weiss C Harold K. Jacobson eds., 1998). 158. See Goodin, supra note 5, at 4. 159. See Doh & Guay, supra note 82, at 10 tbl.1. 160. See Joanne K. Leweler, International Commercial Arbitration as a Model for Resolving Treaty Disputes, 21 N.Y.U. J. INT'L L. & POL.379 (1989). 161. See generally Amazu A. Asouzu. African States and the Enforcement ofArbitral Awards: Some Key Issues, 15 ARB. INT'L 1 (1999); Thomas L. Brewer, International Investment Dispute Settlement Procedures: The Evolving Regime for Foreign Direct Investment, 26 L. & POL'Y INT'L BUS.633 (1995); A. Giardina ICSID: A Self-contained, Non-National Review Syslem, in INTERNATIONALARBITRATION IN THE 21ST CENTURY: TOWARDS "JUDICIALIZATION" AND UNIFORMITY?199 (R.B. Lillich & C.N. Brower eds.,
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zation" established by the World Bank through an international convention and comprised of World Bank Member states.I6' However, other arbitral NGOs also serve to enforce international regimes. For instance, the International Chamber of Commerce's International Court of Arbitration hears more than 500 new cases each year. Having heard over 12,000 cases since its inception in 1 9 2 3 , ' ~the ~ Court is responsible for hearing many of the arbitrations arising under the UN Commission on International Trade Law (UNCITRAL).'~~ Similarly, the American Arbitration Association, operating under the International Dispute Resolution Procedures, also hears cases dealing with international governance issues.'65 Questions about accountability are particularly poignant when NGOs take on the role of mediating or arbitrating disputes. External accountability to the governance regime and NGO independence are important. Internal accountability or external accountability to its beneficiaries may However, some be seen as biased and would be largely ~ndesirab1e.l~~ measure of external accountability to beneficiaries (and the regime itself) may be important in certain contexts where the governing rules require consideration of civil society's participatory needs in dispute resolution. 2. Monitoring
Although untested,'67 some claim under specific conditions, NGO lobbying and information provision can pressure norm-violating govern1994): Carolyn B. Lamm, Jurisdiction of the International Centre for Settlement of InINVESTMENT L.J. 462 (1991); G.R. Delaume, vestment Disputes, 6 ICSID REV. FOREIGN ICSID Arbitration, in CONTEMPORARY PROBLEMS IN INTERNATIONAL ARBITRATION 23 (Julian D. M. Lew ed., 1987); C.F. Amerasinghe, The Jurisdiction ofthe International Centrefor the Settlement oflnvestment Disputes, 19 INDIAN J . INT'L L. 166 (1979). 162. About ICSID, http://www.worldbank.org/icsid/about/about.htm (last visited July 29, 2005). See also Convention on the Settlement of Investment Disputcs Between States and Nationals of Other States, Oct. 14, 1996, 17 U.S.T. 1270, 575 U.N.T.S. 159. (last vis163. See What is ICC?, http:/lwww.iccwbo.org/homelmenu~~hat~is~icc.asp ited July 29, 2005); Introducing ICC Dispute Resolution Services, http://www. iccwbo.org/cou~english/intro~~ourt/introduction.asp (last visited July 29, 2005). 164. For some of the various arbitral rules adopted by UNCITRAL, see the Report of the Working Group on Arbitration on the work of its thirty-sixth session, U.N. Doc. AlCN.91508, available at http:/ldacccssdds.un.orgldoc~DOCIGENN02/533/86/PDFl V0253386.pdROpenElement (last visited Aug. 19, 2005). 165. See also About Us, http:/lwww.adr.orglAbout; International Dispute Resolution Procedures (2003), available at http://www.adr.org/sp.asp?id=22090 (last visited Oct. 13,2005). 166. However, some concerns may be addressed if the impropriety of NGO actions affects its status in future dealings. 167. See Briihl, supra note 16, at 378-79.
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ments into compliance.'68 However, it is not clear whether NGOs undertaking these approaches actually influence State b e h a ~ i 0 r . While I ~ ~ it has been noted most NGOs are not well-suited to serve as comprehensive and exclusive enforcement agents,I7ONGOs have nevertheless been provided the authority in some regimes to act as enforcement agents where States are believed to have violated international r~1es.l'~ For instance, under the Montreal Protocol, NGOs may act as enforcement agents by notifying the Secretariat of non-conforming States, who Although NGOs need in turn may sanction the non-conforming not show injury to enforce the regime, they do not have substantive rights under the Montreal Protocol, and Parties must consent to NGO participation, limiting the effectiveness of NGO enforcement signific a n t ~ ~Conversely, .'~~ under a number of human rights regimes, NGOs are granted locus standi to enforce human rights instrument^.'^^ As a result, "the regular provision of information by the [international NGO] community to various UN human rights committees and national governments has not only greatly improved our knowledge about human rights violations, but also increased compliance with international human rights norms."'75 168. See generally 'I'HE POWEROF HUMANRIGHTS:1NTERNATIONAL NORMSAND DOMESTIC CHANGE(Thomas Risse et al. eds., 1999). 169. See Chandler, supra note 19, at 335-36. 170. See Ruth Mayne, Regulating TNCs: The Role of Voluntary and Governmental INTERNATIONAL BUSINESS:BEYONDLIBERALIZATION 235 Approaches, in REGULATING (Sol Picciotto & Ruth Mayne eds., 1999). 171. See generally Paul Wapner, Politics Beyond the State: Environmental Activism and World Civic Politics, 47 WORLDPOL. 3 11 (1 995). 172. See Briihl, supra note 16, at 373. See also Montreal Protocol on Substances that Deplete the Ozone Layer art. 1 l(5). Annex 111, para. 1, Annex IV(I0). Sept. 16, 1987, 1522 U.N.T.S. 3, 26 I.L.M. 1541, adjusted by London Amendments, June 29, 1990, 20 I.L.M. 537, Nairobi Amendments, June 21, 1991, and Copenhagen Amendments, Nov. 23-25, 1993, 32 I.I,.M. 874; Report of the Second Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, U.N. Envtl. Programme, U.N. Doc. EPlOzL.Pro. 213 (1990), available at http:www.unep.orglozonelMeeting~Documentlmop/02moplMOP~2.asp~cph.htm. 173. See Kalas & Henvig, supra note 113, at 132; Elizabeth P. Barratt-Brown, Building a Monitoring and Compliance Regime Under the Montreal Protocol, 16 YALEJ . INT'LL. 5 19, 564 (1991). 174. See, e.g., Rules of Procedure of the Inter-American Court of Human Rights, art. 23, http:/lwww.cidh.org/Basicoslbasicl8.htm (last visited Oct. 12, 2005). See also William J. Aceves, Actio Popularis? The Class Action in International Law, 2003 U. CHI. LEGALF. 353 (2003). 175. Borzel & Risse, supra note 82, at 209, citing THE POWEROF HUMANRIGHTS: CHANGE (Thomas Risse ct. a1 cds., 1999). INTERNATIONAL NORMSAND DOMESTIC
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Other, weaker versions of NGO participation as monitoring and enforcement agents also exist. For instance, NGOs can participate in the WTO dispute settlement system through submission of amicus curiae brief^."^ Though this is a relatively weak method of enforcement, what is important about the WTO example is, in order to submit a brief, the organization must make clear its objectives, affiliations, funding sources, and plan for uniquely contributing to the resolution of the dispute.'77 Allowing NGOs to participate in the monitoring and enforcement of international regimes raises different accountability concerns than does the situation where an NGO acts as the mediator or arbitrator in a dispute concerning such violations. Similar to the previous discussion, NGOs must remain accountable to the regime itself, ensuring NGOs constrain their charges of States violating international norms to instances where the NGOs actually believe such violations to exist. More significant however, is the importance of NGOs to adequately represent those interests for which they claim to stand. If the enforcement scheme is designed to leave vindication of the rights of unrepresented or disempowered groups to NGOs, then it is essential NGOs be accountable to their beneficiaries. Internal accountability in this circumstance is only marginally important to the proper functioning of the regime. The question then remains as it began: are NGOs sufficiently accountable to the appropriate entities or populations? The following Part answers this question generally in the negative and seeks to apply a function-based analysis to NGO accountability theory. IV. REFININGTHE CRITIQUE:GUIDING NGO INVOLVEMENT
The previous Part illustrated some of the distinct accountability concerns related to particular functions performed by NGOs in international governance. This function-based approach to categorizing NGOs is not unique to this Article. Borzel and Risse categorize NGOs by function and their source of authority in international governance systems, noting NGOs can perform various functions within governance systems based upon cooptation, delegation, co-regulation, or self-regulation in the 176. Esty, supra note 97, at 11. This has been discussed in significant detail by other scholars and will not be reiterated here. See, e.g., Jacqueline Peel, Giving the Public a Voice in the Protection of the Global Environment: Avenuesfor Participation by NGOs in Dispute Resolution at the European Court ofJustice and World Trade Organization, 12 COLO.J. INT'LENVTL.L. & POL'Y4 7 , 6 3 4 4 (2001). 177. See World Trade Organization, Guidelines for Arrangements on Relations with Non-Governmental Organizations, WTOLII 62 (July 18, 1996), available at http://www.
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shadow of hierarchy.'78 This authority-based analysis is useful in understanding the context within which NGO governance functions occur. However, it is only useful in establishing accountability controls insofar as they assist policy makers in determining the needs and purposes of the organization itself. Although recognition of the source of authority may legitimate NGO involvement under some governance systems and not others, such a framework does not suggest differentiated accountability controls when the same function is performed across different governance systems. Rather, differentiation is a function of the overall regime needs and purposes with respect to NGO participation and may significantly vary by type of governance regime. As a result, the authority-based analysis performed by Borzel and Risse is part of a separate accountability analysis and should be treated as an addendum to, but not a replacement of, the framework established by this Article. This Part seeks to define some of the major issues and parameters involved in establishing a functionbased accountability control system. The UN system has the clearest and most direct method of ensuring the accountability of NGOs seeking to participate in governance a c t i v i t i e ~ . ' ~ ~ The 1996 policy established under the Economic and Social Council (ECOSOC) grants "consultative status" to NGOs upon a demonstration of purpose and acc~untability.'~~ While this "consultative status" does not grant NGOs the right to participate in all functions of governance described above in Part 111, the procedure used by ECOSOC to accredit participation is a useful starting point for a discussion of NGO accountability requirements. The ECOSOC procedures require NGOs to provide their charters, bylaws, financial statements, annual reports, sample publications, and explain how their participation will contribute to the goals of the U N . ' ~ 'These requirements are needed to evaluate NGOs7 structure, internal (public) accountability, and external accountability through funding sources.'82 From the application, ECOSOC determines which NGOs may participate, limiting involvement to those having expertise in
178. Borzel & Risse, supra note 82, at 200. 179. Consultative Relationship Between the United Nations and Non-Governmental Organizations, ECOSOC Res. 1996131, U.N. Doc ElRES11996131 (June 25, 1996), available at http://www.un.org/documents/ecosoc/res/1996/eres1996-31.htm [ h e r e i n a h ECOSOC Procedures]. 180. Id. 181. Id.77 1G13, 21. 182. Id.
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the particular matter.lS3Once accredited, NGOs can maintain their "consultative status" by submitting a four-page, double-sided report every four years.184Though this requirement may be criticized as insufficient to ensure accountability, the consultative process generally enables international organizations to assert external accountability controls on NGOs, thereby minimizing "non-cooperative behavior."185 While the UN procedures sign@ a step in the right direction, there are over 6,400 intergovernmental organizations with which NGOs might engage and very few of them have similar accountability procedures.'86 Additionally, the ECOSOC requirements "need to be reconsidered in " ' ~ providing ~ a good light of the increasing number of ~ ~ 0 s . While starting framework, the ECOSOC procedures do not deal with the many variations of international governance activities in which an NGO might participate and are limited to the very narrow "consultative status" akin to participation on the Advisory Councils discussed above in Part III.B.3. Furthermore, the ECOSOC procedures conflate internal accountability with external accountability to the beneficiaries of the ~ ~ 0 . While l ' ~ this creates a significant concern for some governance functions, it clearly demonstrates a failing of the ECOSOC procedures to separate their requirements based upon the functions performed by the NGO. For example, Advisory Councils are highly technocratic epistemic communities designed around expertise.189It is therefore not clear why internal accountability or external accountability to beneficiaries is particularly important to performing the governance function. On the other hand, where "consultative status" implies the right to act as an observer and participant in UN policy making procedures, the necessity and appropriateness of such representation is far greater. The ECOSOC procedures do not distinguish between these two types of NGOs in terms of qualifications to perform various governance functions, illustrating how accountability controls not tailored to function are simultaneously both over- and under-inclusive. 183. Id. 7 9. 184. Id. 17 55,61(c). 185. Borzel & Risse, supra notc 82, at 201. 186. See 200412005 5 Y.B. INT'L ORGS.3 (Union of Int'l Assocs. ed., 41st ed.). L. 187. Edith Brown Weiss, The Rise or the Fall oflnternational Law?, 69 FORDHAM REV.345, 358 (2000) (arguing for application of the Sullivan Principles for accountability); Sullivan Principles for U.S. Corporations Operating in South Africa, 24 I.L.M. 1464, 1496 (1985). 188. See ECOSOC Procedures, supra note 179,y 12. 189. See Haas, supra note 119, at 3.
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Although this Article proceeds primarily from an institutional perspective, similar issues are raised in network governance structures, since "network governance representation is at least partly defined in functional terms."'90 Additionally, even in a network situation, the relationship between representatives and represented has to conform to norms that usually are established in an institutional framework . . . establish[ing] rules which determine the selection of representatives, and [those institutions] have to create formal structures of communication and control, in which rulers can be effectively hold [sic] accountable for their decisions."' As a result, this Article agrees although the process may be somewhat distinct and the accountability needs of network governance structures somewhat different than traditional institutional governance structures, "from a normative point of view, institutional structures of governance are decisive for democratic legitimacy, and this holds true for network In fact, given "[glovernance networks . . . serve as a governance, corrective for deficits of the instit~tions,"'~~ creating distinctions in accountability requirements for networks as opposed to institutions seems normatively suspect.'94 This Part seeks to assist international governance regimes in defining the universe of NGOs eligible to perform a particular governance function. It is not, however, intended to determine whether NGOs should perform a function or which particular NGO or NGOs should be selected to perform particular functions. "[Tlhe essential differences between various types of NGO activity seem to warrant some kind of typology, some way of grouping NGOs by the functions they perform."'95 Grouping organizations by function "would, at a minimum, allow us to approach an individual NGO on its own terms, evaluating the particular organization
190. See Benz & Papadopoulos, supra note 73, at 2. 191. Id. 192. Id. 193. Id. at 3. 194. This issue has significant nuances, including considerations of whether networks increase or decrease institutional ability to perform and maintain its own accountability. See id. at 4-5. These relational issues have not been analyzed to an extent sufficient for the author to conclude whether networks should be held to significantly diff'erent forms or extents of accountability control than traditional institutions. 195. Spar & Dail, supra note 30, at 173 (suggesting classifying NGO activities similar to the Standard Industrial Trade Classification system).
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with regard to its specific purpose."196In evaluating NGOs for base accountability purposes, three major types of accountability exist: (1) intentions or purposes; (2) actions or competence; and (3) outcomes.197Given the resource constraints and distance of international regimes from NGOs, this Article suggests accountability controls be established at both the international and national levels. A. Standardizing Procedures by Function
At the national level, function-based accountability controls are especially crucial to achieving the appropriate level of NGO accountability. At the international level, this need is accentuated by the lack of institutional regime capacity or experience in providing the ever-expanding range of international governance functions, necessitating the inclusion of NGOs and other non-State actors in international governance-a need less significant at the national level. As a result, there is no significant normative difference (putting aside the democratic deficit debate) between international and domestic governance to warrant different approaches to determining when accountability mechanisms should be applied. However, NGO participation in domestic governance may be far more limited in the scope of roles performed, making a function-based approach not economically fea~ib1e.I~~ A function-based approach is particularly important for NGOs because, although it is assumed NGO officials are typically more altruistic than other governance actors (with the possible exception of government officials), "[domestic] non-profit corporate law is in any event unlikely in any jurisdiction to constrain NGO executives to the extent that public officials routinely are constrained by ethics legislation and regulat i o n ~ . " 'While ~ ~ NGOs may have a lower starting baseline of accountability (given existing frameworks), this does not mean we should demand greater total accountability of NGOs than of other governance actors.
196. Id. at 174. The classification system proposed by Spar and Dail would include outcome-based accountability mechanisms involving cross-comparisons. Id. This would enhance competition between NGOs and speaks to the competence issue, but is overly broad in its analysis. Such outcome-based accountability mechanisms are not appropriate in every situation where NGOs perform some governance function. 197. See Goodin, supra note 5, at 1 0 - 1 1. 198. See Benz & Papadopolous, supra note 73, at 1 0 - 1 1. 199. Spiro, supra note 21, at 963.
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As noted above, traditional theory relates the strength of accountability relationships to "the power of the entity being held accountable."200 While significantly different from the view of accountability in this Article, its basic premise is implicitly applicable to the project set out here. In fact, "with respect to legitimacy, the nature of the issue may be an important factor in determining whether we care about procedures for acco~ntability."~~' If power is determined in part by function, as this Article posits, then accountability controls and their strengths should be mapped to those functions. This section seeks to undertake such an effort, moving away from the mainstream literature which aligns accountability mechanisms with type of governance actor or regime.'02 The following sections attempt to map broadly political-, administrative-, and enforcement-related functions to accountability controls analyzed by others. While greater specificity of the functions performed is likely necessary to achieve a truly normatively justified accountability system, this Article seeks to serve as a starting point for such an analysis, leaving further nuances and discussion for another time.203 While this Article believes it exponentially preferable for domestic governments to undertake a harmonization process similar to the one described below in Part IV.B, where domestic governments do not utilize procedures sufficiently similar to those described, international governance regimes must do so in order to properly certify NGO participation and prevent favoritism to NGOs located in countries where such procedures are followed.
200. Keohane, Commentary on the Democratic Accountability of hron-Governmental Organizations, supra note 67, at 479. 201. Keohane & Nye, supra note 5, at 18. 202. See generally Kaldor, supra note 34; Keohane & Nye, supra note 5. 203. See supra Table 1 . One danger in the approach of applying function-based accountability controls at the micro-function level is someone must determine what controls are appropriate for which functions. The greater the number of functions to which accountability controls are applied, the greater the power held by the individual(s) or entity making such determinations. Therefore, it might be best to utilize a second-best approach to function-based application of accountability controls, opting for categories of broadlydefined governance functions. As a preliminary view on this topic, this Article would see the importance of such broad definition dependent upon whether an independent accreditation organization to perform such determinations similar in nature to the process described in Part IV.C.5 is available to perform such determinations and whether NGO participation is intended to hold the governance regime accountable or whether the regime secks to hold the NGO accountable, or both.
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1. Political Functions As described above in Part III.A, NGOs have a very important role to play in policy formulation. It has been claimed "[t]ransnational actors who are not active participants in governance arrangements or negotiating systems [but merely lobby or perform advocacy functions] pose few challenges to existing concepts and theories in political science and international re~ations."~'~ Despite this claim, "policy-making accountability" is still very important in international governance.205As mentioned above, representation issues rightfully dominate the discussion concerning NGO accountability in performing political activities.206 Democratic accountability is important when NGOs perform political functions because they are acting in a representative function. Authority for NGO participation in policy formulation is often justified in terms of intrinsic rights to political participation.207Although not all political functions are necessarily representative in nature, the overwhelming majority of NGOs involved in policy formulation claim to represent some interest, providing them with the legitimacy sufficient to justify participatory rights2'' However, where such representation is crucial to achieve this legitimacy, assurance must be made the NGOs are properly representative. This is important because if an NGO falsely claims to represent a group and is allowed to participate, the NGO may serve to delegitimize or otherwise thwart the true representation of the Although such representation need not be necessarily democratic in nature--especially since democracy is not a universally accepted form of
204. BBrzel& Risse, supra note 82, at 198. 205. See generally Susan Rose-Ackennan, Public Participation in Consolidating Democracies: Hungary and Poland, in BUILDING A TRUSTWORTHY STATEIN POST-SOCIALIST TRANSITION 9 (Janos Komai & Susan Rose-Ackerman eds., 2004). See generally SUSAN ROSE-ACKERMAN, CONTROLLING ENVIRONMENTAL POLICY:THELIMITSOF PUBLICLAWIN GERMANY AND THE UNITEDSTATES (1995). 206. See Charnovitz, supra note 106, at 56. 207. See generally Charnovitz, Two Centuries of Participation: NGOs and International Governance, supra note 1 11. 208. Michael Edwards, NGO Legitimacy--Voice or Vote ?, Feb. 2003, http://www. globalpolicy.org/ngos/credib/2003/0202rep.htm. See also David H . Moore, Agency Costs L. 491,50344 (2004). in International Human Rights, 42 COLUM.J . TRANSNAT'L 209. See generally Robert Charles Blitt, Who Will Watch the Watchdogs? Human Rights Nongovernmental Organizations and the Case for Regulation, 10 BIJFF.HUM. RTS.L. REV. 261 (2004); Edwards, supra note 208.
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governance-many international regimes do base their authority and participatory requirements upon some modicum of democratic legitimacy.210 The literature on democratic, or representational, accountability focuses on NGO representation of beneficiary interests, rather than upon member interests.2" W h i l e t h i s A r t i c l e a c k n o w l e d g e s e x t e r n a l a c c o u n t -
ability to beneficiaries is important where NGOs claim to represent beneficiary interests, not all NGOs which provide services to beneficiary groups or act altruistically on behalf of third-parties claim to speak on behalf of those groups.212Therefore, accountability controls related to the performance of political functions should be determined primarily by representation of the NGO's internal membership. Representation of beneficiary groups is necessary when an NGO claims to represent the views of its beneficiaries; otherwise, representation requirements merely serve to decrease the participatory opportunities of otherwise qualified ~ ~ 0 sAS. a ~result, ' ~ under the democratic or representative model of governance authority, representational, hierarchical, and fiscal accountability controls are important to constrain NGO behavior in the performance of political functions.214 Additionally, peer accountability mechanisms are fairly appropriate under situations where NGOs perform what might be considered political functions, since negotiated outcomes depend upon the willingness of participants to enter into a meaningful negotiation process.215These functions are also most closely aligned with traditional state-state relations, which operate based upon balance of power constraints and are most related to peer accountability constraints in accountability theory. This is therefore relevant under theories considering "accountability as . . . responsiveness, obligation and willingness to communicate with others across the various agencies (the various government departments, quasi210. While this Article conflates representative and democratic accountability for simplicity's sake and to align it more squarely with the existing literature on democratic accountability. adequate representation of some form is crucial for most NGO participation in policy formulation. 21 1. See generally Wapner, supra note 50; Charnovitz, Two Centuries of Particl'pation: NGOs and International Governance, supru note 1 11. 212. NGO Monitor, Different Types of NGOs, http:llwww.ngo-monitor.org1ngoltypes. htm (last visited Aug. 28, 2005). 213. See generally Blitt, supra note 209. 214. As noted above in Table 1, hierarchical controls are considered to include democratic or other representative accountability to members or beneficiaries (where explicitly stated). 215. See Wapner, supra note 50, at 202 (discussing the effects of NGO cooperation and coalitions on accountability).
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governmental organizations and private contractors) constituting the relevant policy community responsible for the 'joined-up government' of, and service delivery in, that sphere."216However, peer accountability controls are only valid to the extent they identify failures to adequately represent member or beneficiary interests, and when peer organizations identifying such failures have the authority to present the regime with such information.217Since peer accountability controls are typically outcome-based, this type of control for the most part will be unacceptable to resolve issues of effective representation. From a regime perspective, then, NGO intentions should be the primary determinant of accountability controls which should be designed by reference to the NGO's structure and ability to uphold its intentions. NGO intentions relate to the motives or purposes with which NGOs act.21RNGOs representing or claiming to represent particular interests must actually attempt to do so. Whether the NGO is able to fully represent the interests of its membership or beneficiary populations is another matter, though it certainly should be an ultimate goal. However, representation need not be perfect in order to be legitimate.219To determine an organization's representativeness, then, the actual level of representativeness should be gauged against the NGO's stated intentions to determine the veracity of their claims. 2. Administrative Functions While intentions dominate accountability controls of NGOs performing political functions, actions (or competence) are most important for determining accountability of NGOs undertaking administrative functions. The role of NGOs in performing administrative duties in international 216. Goodin, supra note 5, at 27 (quoting Mark Considine, The End of the Line? Accountable Governments in the Age of Networks, Partnerships and Joined-Up Services, 15 GOVERNANCE 2 1 , 21 (2002)). 21 7. See Wapner, supra note 50, at 201. 218. Goodin, supra note 5, at 1 1. 219. A simple example from the United States political system demonstrates this: under the "two-party system," the United States' political system is divided into two major groups based upon differing purposes of the two parties. It is axiomatic each member of each party does not adhere to every tenet of his or her party of choice. Instead, members align themselves with groups most closely resembling their own views or representing the interests which are of greatest importance to the members. Indeed, absolute representation of each member's views would preclude effective organization. As a matter of pragmatism, therefore, imperfect representation must be sufficient to justify representation. The trickier question is determining when representation is not sufficiently representative of member or beneficiary interests or views.
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governance is one primarily of functionality for the organization. Generally, a high level of technocratic expertise is required for such activities, and therefore, issues of representation are less significant.220Instead, external accountability to the regime is most important from a regime perspective.
NGO authority to participate as administrative governance actors is derived from the privileges granted by the regime.221NGOs and their represented memberships have no intrinsic rights to participate as administrative actors. Rather, their participation serves instrumental purposes for the regime. As a result, NGO authority and legitimacy are derived from and delegated by the regime and can therefore be proscribed and withdrawn by the regime.222Adequate representation of members or beneficiary groups is therefore not a normative prerequisite to properly serving as an administrative agent of an international regime (assuming authority to perform such a function). Supervisory and legal accountability controls, derived from the power of delegation, are therefore the primary mechanisms used in ensuring accountability. Secondary means of ensuring external accountability to the regime are enforced through budgetary and other fiscal controls, hierarchical controls for managers in their individual capacities, and to a certain extent, peer accountability controls where other NGOs are also involved in the provision of particular administrative duties.223Internal accountability (necessary to ensure membership fees and other base revenue and organizational sources of power are not mismanaged or abused) to members is achieved not through representational accountability mechanisms, but through procedural controls to ensure fiscal (through membership exit and loss of membership fees) and hierarchical ac~ountability.~~~ Action-related accountability concerns dominate administrative act i o n ~ NGO . ~ ~ actions ~ are evaluated to ensure they do not exceed the scope of the mandate provided by the delegating Outcomerelated concerns also exist, but are less significant in the performance of administrative functions, since action-related accountability concerns 220. See generally Goodin, supra note 5, at 23-30 (suggesting homogeny is not necessary because the desire to acheive a negotiated outcome is enough to succeed). 221. Id. at 1. 222. Id. at 3. 223. Id. at 3 4 . 224. Keohane, Political Accountability, supra note 5. at 15. 225. Keohane & Nye, supra note 5, at 27. 226. See Goodin, supra note 5, at l I.
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determine which qualified NGOs participate and require those NGOs to perform their assigned duties. Therefore, if the NGO is to produce documentation or training programs, outcome-oriented accountability mechanisms provide little additional guidance, since NGO authority is derivative and delegated and can be withdrawn if the NGO fails to meet the quality expectations of the regime. Nevertheless, a minimal level of outcome-related constraints should also be imposed to ensure NGOs produce well-researched neutral information, for instance. 3 . Enforcement Functions Different from both political and administrative functions, NGOs' performance as enforcers of the rules of an international regime is derived both from intrinsic rights and instrumental privileges.227NGO participatory rights may be delegated to NGOs by the international regime based upon reasons of expertise or such rights may be intrinsic to ensure regime adherence to the rules established by the regime and its Member As a result of this bifurcated source of authority, NGOs may be held to account by multiple groups: the regime (including the regime's beneficiaries if the regime acts outside its scope of authority), the beneficiaries of the NGO, and, to a lesser extent, the internal membership of the N G O . ~ ~ ~ NGOs performing enforcement functions must maintain accountability to the regime and its purposes to ensure the regime is held to account and for the regime to ensure the NGOs act within the authority properly delegated to them, depending upon the particular enforcement function. NGOs must also ensure accountability to the regime's beneficiaries and the beneficiaries of the NGO, whether internal or external. Generally, however, external beneficiary interests will dominate, and therefore adequate representation of such interests must be assured.230External accountability to beneficiaries, while predominantly achieved through the regime's policies and supervisory mandates, must also be ensured through a modicum of hierarchical accountability to the beneficiaries directly, where such enforcement functions directly affect them. 227. For a discussion of how these rights and privileges interact, see Erik B. Bluemel, Separating Insbumental from Intrinsic Rights: Toward an Understanding of Indigenous Participation in lnternational Rule-Making (forthcoming 30 AM. INDIAN L. REV.(Fall 2005)). 228. See Charnovitz, Two Centuries ofParticipation: NGOs and International Governance, supra note 11 1, at 276-77; Grant & Keohane, supra note 4, at 8. 229. Chamovitz, supra note 11 I , at 277-78. 230. Id. at 278-79.
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While beneficiary accountability is primarily determined by intentions and actions, external accountability to the regime is determined mostly by reference to actions and performance outcomes, especially in the provision of services.231Effectiveness, expertise, and experience are crucial determinants for outcome-based accountability controls. For delegated non-public service provision NGO functions, external accountability to the regime generally is ensured through outcome-oriented supervisory, legal, and fiscal controls.232The basic internal accountability necessary to ensure managerial compliance is achieved through fiscal and hierarchical requirements established (in the framework of this Article) under domestic law. as will be discussed in the next section.
B. Harmonizing Domestic Procedures National governments often have processes by which NGOs are established and verified under domestic law. Recognizing this, it would be inefficient to require international governance regimes to duplicate domestic requirements. Implicit legitimacy is often established through domestic government recognition of NGOs as legal entities.233This legitimacy, however, should not be taken for granted, since the international regime may have interests which are not purely based upon the aggregation of interests of its member As a result, international regimes must validate the rigor with which the national governments apply their accreditation procedures, much as the NACEC evaluates the enforcement of national environmental laws under NAFTA, and apply more stringent requirements where necessary and appropriate.235As a result, domestic procedures should be viewed as baseline requirements for participation in international governance, but should be appended with international requirements where necessary to ensure accountability appropriate to the governance function involved. The view of this Article is efficiency requires domestic governments to certify NGOs as legitimate actors with the international system focusing on legitimizing NGO involvement in particular international governance functions. However, where domestic governments do not have procedures or an effective process of legitimizing NGOs, the international sys23 1. See generally Chamovitz, supra note 106 (discussing examples of NGOs, issues arising from their involvment, and their functions). 232. See generally Grant & Keohane, supra note 4. 233. See Ann M. Florini, Lessons Learned, in T H ETHIRDFORCE:THERISE OF TRANSNATIONAL CIVILSOCIETY 21 I , 233 (Ann M. Florini ed., 2000). 234. See Aman, supra note 39, at 1705. 235. Id. at 1712-14.
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tem must do so to prevent unfairness between countries' NGOs. This Article considers it highly desirable to harmonize the domestic NGO legitimizing processes to both improve the effectiveness of the process itself and to conserve resources. This Article also considers domestic governments far superior in the basic legitimizing process given their proximity to the NGOs and their (typically) preexisting information collection processes. Domestic governments are also most capable of understanding the variety of local organizational structures and purposes and therefore should play a central role in certifying NGOs as eligible for participation in international governance. However, establishing domestic accountability mechanisms for NGOs is no easy task considering the great variety in NGO organizational forms: [Tlhere are wide difference [sic] among NGOs concerning their forms of organisation-formal versus informal, hierarchy versus participation, networks versus federations, centralised versus decentralisation, not to mention differences in organisational culture. Some NGOs are membership organisations; others are governed by boards or trustees. Moreover, the meaning of membership varies.236 Nevertheless, most national governments have, and continue to establish, requirements NGOs must meet to earn a particular, usually special, legal Of particular difficulty is the issue of distinguishing between local and international NGOs and determining what role national governments might play in certifjing such organizations.238There are over 200,000 local NGOs in the developing world alone.239In addition, there are approximately 29,000 international ~ ~ 0 s International . ~ ~ ' NGOs often seek beneficiary legitimacy by allying with local NGOs and are
236. Kaldor, supra note 34, at 24. 237. Requiring national governments to impose some requirements on NGOs prior to allowing their participation in international governance is not new to this Article, as the UN defines NGOs as non-profit organizations, implying those NGOs are established under some domestic legal structure as non-profit entities. See supra text accompanying note 2. 238. Tavis, supra note 122, at 5 10. NGOS AND THE POLITICAL DEVELOPMENT 239. See JULIEFISHER,NONGOVERNMENTS: OF 'IHE THIRD WORLD6 (1998). 240. NGOs with operations in more than three countries are generally considered "international NGOs." COMM'NON GLOBALGOVERNANCE, OUR GLOBALNEIGHBORHOOD: THEREPORTOF THE COMMISSION ON GLOBAL GOVERNANCE 32 (1995); NGOs: Sins ofthe Secular Missionaries, supra note 147, at 25 (referring to the Commission on Global Governance's report).
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frequent sources of funds for their local partners.241Thus, while international NGOs may have greater legitimacy as actors at the international governance level, domestic NGOs have a significant role to play as well. Limiting participation to international NGOs may seriously undermine the funding and effectiveness of domestic NGOs, ultimately to the detriment of local beneficiaries.242Additionally, many, if not all, of the governance functions described above in Part 111 could be performed by local NGOs having the proper level of competence to perform such functions. Therefore, this Article does not discount the participation of local NGOs in international governance as do the ECOSOC procedures.243 However, this Article does recognize the difficulty in relying upon domestic governments to certify international NGOs as potential participants in international governance.244This Article favors (though by no means requires) an alliance between international NGOs and local NGOs to alleviate the disadvantages of limiting participation to either local or international NGOs, especially where beneficiary interests are represented and experience or expertise are important (as in the provision of services). In countries certifying NGOs, domestic accountability requirements generally require NGOs: (1) serve disempowered or underserved populations; (2) are established to promote the public interest; (3) are fiscally responsible so monies do not inure to private individuals; and (4) have an organizational structure holding its managers and directors accountable to its membership through some means.245These basic requirements cre241. See Tavis, supra note 122, at 510: Tarlock. supra note 82. at 6 5 4 6 . 242. For a discussion of the interaction between international and domestic NGOs, see Shelley Inglis, Re/Constructing Right(s): The Dayton Peace Agreement, International Civil Society Development, and Gender in Postwar Bosnia-Herzegovina, 30 COLUM. HUM.RTS.L. REV.65, 107-1 3 (1998). 243. See ECOSOC Procedures, supra note 179. 244. See infra Part 1V.A for a discussion of how this difficulty might be resolved. 245. In the United States, Internal Revenue Code § 501(c)(3) provides the test for organizations not organized for profit, but operated solely for the advancement of social welfare. Of course, for-profit entities can still perform services and other international governance functions. This Article, however, is intended as a direct response to the wealth of literature on NGO accountability. Although this Article only analyzes NGO accountability, its analysis may be portable to other actors performing similar functions for the reasons described above. This Article does not believe NGOs should have a right to participate while other for-profit associations do not. However, the latter may require different accountability controls, an issue not directly addressed by this Article. See Charnovitz, Two Centuries of Participation: NGOs and In~ernationalGovernance, supra note l 1I, at 276; Peel supra note 176, at 73-74; see also supra notes 53, 65. While it is possible different concerns exist regard-
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ate a good base for establishing mechanisms to hold NGOs internally accountable when performing functions associated with international governance. However, "the absence of standard public law safeguards concentrates significant power in NGO secretariats" and may encourage forum shopping or a race-to-the-bottom in NGO domestic regulation.246 Therefore, the following sections call for harmonization of domestic regulation of NGOs to ensure a minimum level of accountability. This minimum level of accountability is based upon the process of legitimizing NGOs as valid actors in any sphere of governance and includes the four accountability controls discussed above. 1. Representation While domestic regimes generally require NGO service-orientation toward underserved or disempowered populations, this requirement is to ensure the NGO operates for a "public purpose," rather than representation of beneficiary interests. Representation controls in this context should ensure members have some hold over policy decisions or agency leadership, such as occurs in a principal-agent relationship.247Therefore, for harmonization purposes, accountability mechanisms should ensure only representation of member interests. External accountability to beneficiaries is not necessary for all governance functions. Therefore, analysis of accountability to beneficiaries, while best done at the domestic level, should not be a requirement harmonized prior to participation, but should be evaluated (by the domestic government) based upon the particular function the NGO seeks to perform. One criticism to this approach is rules governing NGO interactions with local communities can have significant positive consequences on
ing NGOs as compared to other actors, counseling for different or fewer accountability controls, this Article suggests these concerns may be neither rational nor supportable distinctions when NGOs perform governance functions capable of being performed by other entities (even if not equally well). In fact, "it is important for global institutions, international institutions and governments, not to privilege NGOs in debates about social justice." Kaldor, supra note 34, at 27. Additionally, somc have suggested government agencies do not have thc same "ethos of mutuality" as NGOs (though officials would) and therefore should not be full participants in network governance structures. See Goodin, supra note 5, at 4 3 4 4 . Of course, interest polarization may occur with or without government involvement and is usually a more likely outcome than cooperation-based approaches in international governance. See Brown et al.. supra note 60, at 28-32. 246. See Brown el al., supra note 60, at 23-32. 247. See Keohane, Political Accountability, supra note 5, at 8.
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NGO relations with its b e n e f i ~ i a r i e s .As ~ ~NGO ~ memberships are not usually comprised of NGO beneficiaries, it is important to differentiate NGO representativeness from NGO adherence to its intended beneficent goals as well as from representativeness of beneficiary viewsldesires, all of which may differ significantly. The disjuncture between the views and interests of intended beneficiaries and members can significantly impede the effectiveness of NGOs. While this is a sound criticism, it is valid only in relation to the organization's purpose, claims to representativeness, or situations where NGO effectiveness can be decreased by the membershiplbeneficiary disjuncture. Therefore, it shall be discussed along with other NGO purposes below in Part IV.B.3. Although traditionally considered in the context of democratic accountability akin to states, NGOs need not be highly representative of beneficiary interests to perform governance actions.249Some have argued outcome-based measures should be more important than the representativeness of the N G O . ~ ~However, ' this Article does not believe such generalizations are appropriate, and argues different accountability measures must be evaluated in light of the function the NGO seeks to perform, as discussed in greater detail in Part 1V.A. While the requirement NGOs be non-profit entities helps ensure actions in the "public interest" to a certain extent, it has been recognized that NGOs still operate under a profit motive, despite being non-profit, and therefore may not be entirely representative of member view^.^" It is improper to assume NGOs are no more than a mere aggregation of their memberships' interests. Rather, bureaucratic theory suggests NGOs may
248. Craig Johnson, Toward Accountability: Narrowing the Gap Between NGO Priorities and Local Realities in Thailand 5 (Overseas Dev. Inst., Working Paper No. 149, 2001) (arguing internal accountability mechanisms are stronger than many scholars acknowledge). 249. Wapner, supra note 50, at 199; see also Tarlock, supra note 82. at 75. 250. See Delbriick, supra note 106, at 4 1 4 2 (recognizing "providing a stringent legal framework . . . that NGOs would have to abide by in order to be admitted as participants in the international system could enhance their legitimacy"). 251. See Bjorn Moller, "Civil Society Romanticism": A Sceptical [sic] View: Reflections on H&an Thorn's Solidarity Across Borders (unpublished paper), available at http:l/www.ihis.aau.dk/-bmMG0s-SA.doc (last visited Aug. 19, 2005). While this Article considers NGO actors distinct from other potential civil society and economic actors in global governance, a regime may not consider such a distinction important, or, as a second-best alternative, verifying the "public interest" nature of the organization might prove exceedingly difficult. See Peel, supra note 176, at 73-74. In such a case, however, the regime would still need to filter out organizations with improper or falsified purposes, making this analysis mostly pcrtincnt, though with a slightly different focus.
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have public-interest values not derived from any interest-aggregation theory of representation.252As a result, adequate member representation must be viewed in part in terms of process, and not wholly in terms of results, and must ensure the results are not contrary to the purpose of the NGO. Representativeness is difficult to verify,253but local variations demand it be addressed at the local or national level as opposed to the international level. Three indicators, however, may be a useful starting point in determining NGO representativeness: "the institutional ability of [members] to sanction leaders, the de facto capacity of [members] to sanction leaders, and the [organization's] responsiveness to the expressed will of the [members]."254
2. Accountability At the international level, accountability of NGOs generally focuses on analyzing the democratic accountability of ~ ~ 0 sHowever, . ~ ' ~other accountability issues exist and are the dominant forms of control imposed at the domestic level. Because NGO self management and internal accountability procedures are insufficient to guarantee NGO accountability,256various mechanisms to improve internal NGO management have been proposed.257Therefore, despite the fact NGOs can be held accountable to their members through member exit, financial conditionality re-
252. Id. at 5-6. 253. Brown et al., supra note 60, at 25. The actual representativeness of NGOs has also GLOBALGOVERNbeen questioned recently. See ROBERTO'BRIENET AL., CONTESTING AND GLOBALSOCIALMOVE-MENTS 200ANCE: MULTILATERAL ECONOMIC INSTITUTIONS 01 (2000); Martin Wolf, What the World Needsfrom the Multilateral Trading System, in THE ROLEOF THE WORLDTRADEORGANIZATION IN GLOBALGOVERNANCE 183, 197-98 (Gary P. Samson ed., 2001). 254. See Brown et al., supra note 60, at 24-27. 255. See Grant & Keohane, supra note 4. at 13. 256. See generally LEWIS, supra note 44. See also ALAN FOWLER,STRIKINGA BALANCE:A GUIDE TO ENHANCINGTHE EFFECTIVENESS OF NON-GOVERNMENTAL IN INTERNATIONAL DEVELOPMENT (1 997); Helmut K. Anheier, Managing ORGANISATIONS Non-ProJit Organizations: Toward a New Approach (Center for Civil Society, Civil Society Working Paper No. l, 2000), available at http:/lwww.lse.ac.uWcollectionslCCS/ publications/cswp/civil~society_wp.htm. 257. See MICHAELEDWARDS, NGO RIGHTS AND RESPONSIBILITIES: A NEWDEALFOR GLOBALGOVERNANCE 28-37 (2000) (noting a vote alone is no substitute for a voice, and suggesting independent regulation by an external agency, for example, as a means to improve NGO accountability).
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quirements, advisory boards,258and other externally-imposed accountability requirements are often deemed desirable from a national policy perspective. Specifically, financial accountability controls are used to ensure fiscal responsibility of the organization so self-serving "for-proGt" personal motives do not exist.259Hierarchical accountability controls are used to further constrain NGO managers and employees from inappropriate actions and rent-seeking behavior. For this reason, the method of board selection is important to NGO a c c o ~ n t a b i l i t yBoth . ~ ~ ~fiscal and hierarchical controls are more readily obtained and verified at the national level as opposed to the international level. Therefore, requiring controls at the national level in the first instance may make economic sense.
3. Validity of Proffered Goals Another issue best harmonized at the domestic level is the requirement that NGOs serve the "public interest." Definitions regarding the "public interest" will certainly vary by state. In fact, not all States define NGOs as non-profit entities.261Since "moral accountability arises from the mission of the civil society it is important to ensure the legitimacy derived from an organization's NGO status is justified. The requirement NGOs be non-profit entities serves in part to ensure NGOs serve, or in some cases represent, marginalized interests imperfectly serviced or represented by the State. In this sense, some NGOs serve a "second-best"
258. Wapner, supra note 50, at 2 0 1 4 2 ("Many professional institutions use outside experts or boards of directors that watch out for the organization's long-term well-being. These boards are usually comprised of people who are uninvolved in day-to-day operations and therefore possess a broader perspective on the issue area and the organization's political role. Boards can have authority to depose NGO leaders and shape the broad outlines of campaign work. While board members implicitly share the overall normative orientation of the organization and its officials, they come to the group as outsiders. In fact, they are invited onto the board precisely because they have some distance from the organization."). 259. See Brown et al., supra note 60, at 24-27. 260. See Country Plan Presentations: The Philippine Group, in CSRO ACCOUNTB I L I T Y & SUSTAINABILITY: CRITICALLESSONSFROM BEST PRACTICES 73-74 (SE Asia Reg'l Conf., Feb. 18-20, 2002), available at http:/lwww.synergos.org/globalphilanthropy/02/csroproceedings.pdf[hereinafter CSRO ACCOUNTAE%ILITY]. 261. See, e.g., Felicidad Soledad, Accountability as a Sector: The PCNC Experience, supra note 260, at 9 (noting the Philippines did not certify in CSRO ACCOUNTABILITY, NGOs for tax deduction purposes until recently). 262. Kaldor, supra note 34, at 2 1.
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function of representation or ~ e r v i c e - ~ r o v i s i o nHowever, . ~ ~ ~ the legitimacy of distinguishing between NGOs serving underserved populations and NGOs serving more politically powerful associations is normatively suspect. Failure to limit the participation of these more powerful NGOs, however, means increasing NGO participation generally may in fact further disempower underrepresented groups as they must then battle against potential capture of organizations by more powerful ~ ~ 0 s As a result, it is important to link the international regime's goals of NGO participation to the purpose with which the NGO is formulated. The purpose of the NGO is important not only to determine which NGOs are actually serving the public interest but also to ensure NGO institutional competence in particular fields.265Relationships with marginalized populations on specific issues creates a measure of competence important to proper international governance. Although one society may be comprised of marginalized populations which are politically powerful in other societies, this variation does not overcome the significant need to establish a harmonized approach to tackling the issue of NGO purpose to determine whether organizations act for the public-interest or private profit.266
4. Veracity of Proffered Goals Harmonizing domestic requirements for initial NGO certification is insufficient, however, to ensure NGOs are appropriately accountable and formulated at the domestic level. Without a requirement NGOs be evaluated for the veracity of their goals and the imposition of other accountability controls, it will be difficult to weed out NGOs which serve as mere fronts for states seeking increased political power or organizations misrepresenting their purposes or engaging in other fraudulent rentseeking behavior. 263. See Ngaire Woods, Good Governance in International Organizations, GLOBAL GOVERNANCE, Jan-Mar. 1999, at 39, 45. 264. See Robert 0. Keohane & Joseph S. Nye, The Club Model ofMultilatera1 CoopIN A eration and Problems of Democratic Legitimacy, in POWERAND GOVERNANCE PARTIALLY GLOBALIZED WORLD219, 236, 239 (Robert 0. Keohane ed., 2002); Kahler, supra note 5, at 14 (citing Bernard Manin et a]., Introduction, in DEMOCRACY, ACCOUNTAND REPRESENTATION (Adam Przeworski et al. eds., 1999)); Woods, supra note ABILITY, 263. 265. Goodin, supra note 5, at 25. This, of course, assumes application of the UN's definition of NGO. See supra note 2. 266. This is not to say that industry or for-profit associations have no right to participate in international governance. However, this Article is limited to an analysis of N o s , as defined by the UN.
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It has been argued, relative to other actors, intentions play a much greater role in ensuring accountability of the non-profit sector and regimes should continue to focus on the intentions of NGO actors, monitoring NGO intentions undertaken through peer accountability mechan i s m ~ Despite . ~ ~ ~ these claims for the greater use of peer accountability
in holding NGOs to account to their purposes,268fly-by-night NGOs have not been successfully regulated through internal codes of conduct or peer accountability controls.269 Instead, requirements at the national level help validate NGO actions against the purposes with which they are established and are therefore important to ensure long-term NGO accountability and public-interest oriented behavior. As noted above, NGOs in international governance often do not disclose or are not required to disclose their funding sources.270International validation of domestic data is therefore necessary to ensure the veracity of the data collected and NGOs are not merely State funded or controlled organizations. The continued requirement of financial accountability is also important to ensure the organization does not engage in for-profit activities. However, determining whether an NGO has faithfully adhered to its mission and vision can be a difficult task."'
267. See generally Goodin, supra note 5; Grant & Keohane, supra note 4. 268. Goodin, supra note 5, at 26. 269. See Soledad, supra note 261, at 9. 270. Maura Blue Jeffords, Turning the Protestor into a Partnerfor Development: The Needfor b@ctive Consultation between the W7'0and NGOs, 28 BROOK.J . Im'L. L. 937, 982 (2003). 271. See, e.g., Abdi Suryaningati, The YAPPIKA Experience, in CSRO ACCOUNTABILITY,supra note 260, at 12. This Article does not necessarily advocate the use of effectiveness measurements as means to determine the adherence to an organizational mission and vision, both for normative reasons and because of the difficulty of attributing outcomes with NGO actions. See id.; Bugenio M . Caccarn, Jr., h4easuring Results and supra note 260, at 14. Nevertheless, it recognizes Impact, in CSKO ACCOUNTABILITY, such outcome-based measurements may be useful, and therefore applies the three subjects of accountability described by Goodin (intentions, actions, results) to NGO participation in international governance. See Goodin, supra note 5, at 1 0 - 1 1 (noting although the three subjects are not necessarily exhaustive, they do relate to the three main ethical forms of virtue: ethics, deontology, and consequentialism). Although "[nlo non-profit is sensitive only to intentions and wholly unsensitive to results," for participation purposes. it is not clear a results-orientation is appropriate, since a consideration of results may occur when seeking funding, as donors look both at qualitative and quantitative financial accountability. See id. at 16, 25 n.32; Nipa Banerjee, Donor Sharing, in CSRO supra note 260, at 65; Brown et al., supra note 60, at 1G17. ACCOUNTABILITY,
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Often, formal means are lacking to ensure organizations are meeting their stated objectives.272This issue may also be exacerbated by financial conditionality, which may not perfectly align with stated objectives and goals.273In fact, issues of multiple accountability often make coherent management Establishing accreditation procedures at the international governance level may serve to streamline multiple accountability concerns into a single accountability source. This may occur as donors adopt the accreditation procedures used by international regimes, thereby minimizing conflicting accountability concerns and loyalties significantly. While loyalty issues surrounding financing will likely inevitably occur given donor financing preferences, accreditation procedures may be used to ensure only those organizations with goals appropriately aligned with such donor preferences will be financed, rather than allowing NGOs to constantly redefine their priorities to meet donor demands. One concern with such an arrangement, however, is donor financing may be given even greater power under such an arrangement. Only those NGOs whose goals are aligned with donor preferences will receive funding for participation in international governance activities.275NGOs which could normally receive financing upon a redefinition of their goals may be left without funds, causing some populations or issues to go unserved. Whereas these NGOs might have been able to incorporate some of their preferences into a donor-driven project previously and at least to some extent servicing those populations or issues, now those NGOs would be precluded from doing so in the international governance context. Although not precluded from doing so in an informal, nongovernance context, international donors may adopt the accreditation procedures of international regimes throughout all of their financing arrangements, thereby running the risk such a policy might result in sub272. See Johnson, supra note 248. 273. See id. at 5. 274. See id. See also EDWARDS & HULME,supra note 147; David Stark, Ambiguous Assets for Uncertain Environments: Heterarchy in Postsocialist Firms, in THE TWENTYFIRST-CENTURY FIRM: CHANGINGECONOMICORGANIZATION IN INTERNATIONAL PERSPECTIVE 69, 101 (Paul DiMaggio ed., 2001) ("To be accountable to many different principles becomes a means to be accountable to none."); Goodin, supra note 5, at 6-8 (noting generally different accountability mechanisms operating upon NGO actions); Keohane & Nye, supra note 5; E.A. Brett, Voluntary Agencies as Development Organizations: Theorizing the Problem of Eflciency and Accountability, 24 DEV.& CHANGE269 (1 993). 275. This is not far from what happens currently, as there "has been a proliferation of NGOs that are organized more to take advantage of [donor] resources than to accomplish their nominally value-based missions." Brown et a]., supra note 60, at 12.
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optimal financing of various populations' needs. The danger accreditation procedures will limit the servicing of various issues, however, seems overstated, as many NGOs pursue multiple objectives simultaneously and even under very strict donor financing arrangements and still find means to adapt the donor requirements to meet the needs of both the
NGO and the intended beneficiaries.276 In the end, for NGOs to be held accountable in a coherent and consistent manner at the international governance level, some harmonization in definition and regulation at the national level is required. NGOs have a sense of moral legitimacy due to their focus on public interest or nonprofit issues. It is therefore important for national governments to ensure an organization seeking NGO certification meet some requirements to be labeled a non-profit organization, including purpose- and populationbased requirements, financial and hierarchical accountability controls, and controls ensuring alignment between the purposes and actions of the organization. These mechanisms together establish the minimum requirements necessary to create some coherency to NGOs in the international sphere, thereby reducing the costs and improving the correctness of international governance systems' certification of NGO participants.
C. Implementation Issues This is a theory-based Article, leaving most of the details of implementation to further study. However, some general implementation concerns should be noted. 1. Cost The ability to implement a unified system of NGO certification unique to each regime's mandates and purposes will inevitably impose a number of significant costs. While some of these costs may be minimized through economies of scale if performed by a single certification organi~ a t i o n they , ~ ~will ~ nevertheless be significant for international regimes. These costs may be borne by applicant NGOs, depending upon the regime mandate, making distributional inequities a danger. Despite this potential pitfall, these concerns do not appear particularly worrisome since significant funding is available from various organizations to support NGO capacity-building and participation in international govern276. See Johnson. supra note 248. at 14-15 (noting such flexibility is enhanced by requirements seeking greater incorporation of intended beneficiaries in the decisionmaking processes but some ambiguity is still necessary to allow such flexibility). 277. See inza Part IV.C.5 for a discussion of this typc of arrangement.
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a n ~ e . Additionally, ~~' this Article seeks to place some of the costs of implementing this framework upon national governments, which typically have greater resources for certification than international regimes.279 2. Feasibility
a. Regime Perspective From a regime perspective, implementing the framework laid out might not only impose costs, but might be difficult to achieve even absent financial constraints. Lack of adequate data or resources to verify the veracity of organizations may present significant challenges in implementation. Recognition of these problems is the primary reason why this Article suggests a two-tiered approach to certification: domestic- and international-level procedures. However, despite these data gaps, it is important to provide the indicators by which future studies may be conducted and to identify areas of further research. Additionally, international regimes may not be particularly competent in certifying NGOs to participate, as most have not undertaken such certification requirements. As a result, a significant learning curve and proceduralization of the certification process will be required to guide regime behavior. While a dedicated, independent certification agency may significantly assist regimes in this process,280this learning curve will nevertheless exist and may present significant short-term equity and justice concerns. Finally, significant concerns exist regarding the ability of international organizations to pierce through domestic regulations serving as mere window dressing. This Article assumes such a process is possible, as it has faith in the approach undertaken by NACEC in the NAFTA regime. 278. For example, the United Nations Development Programme and Global Environment Facility Small Grants Programme provides up to $50,000 for NGOs seeking to build their capacity in international governance as it relates to environmental protection. See The Global Environment Facility Small Grants Programme 1992-2002, Hands-on Actions for Sustainable Development (2002), http://sgp.undp.org/download/SGPlO) yearReport.pdf. 279. Cf:Peel, supra note 176, at 74 ("Greater institutional constraints in the intcrnational setting may mean that tribunals do not have the resources to devote to screening individual applications and submissions by NGOs. However, such considerations do not dictate the exclusion of NGOs from the international environmental dispute resolution processes altogether. Rather, they suggest the need for development of a process of accrediting NGOs in the international environmental arena to ensure an empirical basis for determining their claimed representativeness and expertise."). 280. See infra Part IV.C.5.
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This Article counsels for freedom of information laws to the extent they provide information regarding government funding and NGO purposes, structures, and funding sources. Nevertheless, the difficulty of determining whether an organization is a mere political arm of a state where such l a w s do not e x i s t w i l l be i m m e n s e , a n d w i t h o u t g r e a t e r standardization,
including the use of standard accounting procedures, data gathered from national governments or independently may require significant analysis to decipher their importance.
b. NGO Perspective From the NGO perspective, the requirements imposed by this Article will likely undermine organizational efficiency to a certain extent. While this Article does not advocate significantly different accountability mechanisms than current literature, it does call for particular arrangements of accountability mechanisms, the strength of which may vary depending upon the functions performed (or the type of organization performing them). As a result, certain combinations of accountability mechanisms may prove to be more stringent and hinder organizational efficiency to a greater extent than existing requirements or theories. As a result, such requirements might limit the number of NGOs capable of performing governance activities to the larger NGOs capable of absorbing such additional In the view of this Article, these concerns do not seem particularly compelling as an argument to reject a functionbased approach to accountability, but certainly must be considered in determining the strengths of accountability mechanisms applied to particular governance functions.
3. Western Bias A significant concern for this framework is its potential to favor Western forms of organization. While the departure from democratic accountability theory opens the door for participation by non-Western NGOs possibly left out of other accountability theories, the certification process established by this Article's framework nevertheless may create a potential bias against non-Western organizational forms which are not established according to the typically Western corporate model. Additionally, this Article continues to rely on representation as being a normative basis 281. See, e.g., Hale, supra note 64, at 16, 20 (noting worries "the costs of compliance will detract from the partners' ability to cany out their project, an issue of special concern to small-scale partnerships and developing country partnerships," but arguing "innovative policy tools can avoid this danger").
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for internal, and to some extent, external accountability to beneficiaries. While less concerning than mainstream accountability theory, which primarily relies upon democratic representation models and elections, this Article's reliance on representation might be seen to imply a democratic model-an issue of concern since only approximately sixty percent of global society is democratically governed through elections.282However, this analysis does not assume such a requirement unless one is established at the regime level. As noted in the previous section, the certification requirements imposed by this framework might also favor wealthier NGOs, typically from Western or Northern countries.283Even more disconcerting to some might be the departure from typical accountability critiques of NGOs, which disclaim NGOs7 failure to adequately represent their beneficiaries' interests. Focus on internal accountability as accountability to members, who are typically wealthy Northern individuals and organizations, might advantage Northern policies. Southern countries may therefore oppose out of fear Northern NGOs' policy general increases in NGO po~er,284 goals will not sync with local developing country realities, and may be coterminous with Northern governments' policy platforms.285Additionally, Southern countries may fear allowing NGO participation will favor Northern NGOs due to inequities in power, access to technology and resources, and the predominance of the English language in international 282. See Adrian Karatnycky, The 200lF2001 Freedom House Survey of Freedom, in FREEDOMIN THE WORLD:THE ANNUALSURVEY OF POLITICAL RIGHTSAND CIVIL LIBERTIES 200C-2001, at 9 (Linda Stern ed., 2001). 283. See CONSTRUCTING WORLD CULTURE:INTERNATIONAL NONGOVERNMENTAL ORGANIZATIONS SINCE1875 (John Boli & George M. Thomas eds., 1999). 284. See Daniel C. Esty, Linkages and Governance: NGOs at the World Trade Organization, 19 U . PA. J. INT'L ECON.L. 709, 725 (1998) ("Other observers argue that a greater role for NGOs at the WTO might exacerbate the existing bias toward Northern viewpoints and further weaken the voice of those advancing the needs of the developing world."); Philip M. Nichols, Participation of Nongovernmental Parties in the World Trade Organization: Extension of Standing in World Trade Organization Disputes to Nongovernment Parties, 17 U . PA. J. INT'L ECON.L. 295, 3 18-19 (1996) (explaining the inequity that exists in advocating in an international forum because of the benefits to well-monied interest groups). 285. See Rona Nardone, Like Oil and Water: The WTO and the World's Water Resources, 19 CONN.J . INT'L L. 183, 194 (2003) (noting that Northern NGOs prioritize natural resource and biological diversity protections, while Southern NGOs prioritize human development); Maki Tanaka, Bridging the Gap Between Northern NGOs and Southern Sovereigns in the Trade-Environment Debate: The Pursuit of Democratic DisL.Q. 113, 12C-21 pute Settlements in the WTO Under the Rio Principles, 30 ECOLOGY (2003).
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governance.286This fear, however, is not particularly significant, as the theoretical framework established by the Article would actually reduce the number of Northern NGOs claiming to represent Southern beneficiary interests where such beneficiaries are not properly represented in N G O policymaking,2g7 s p u r r i n g t h e f o r m a t i o n of S o u t h e r n N G O s o r
Northern NGOs truly representative of Southern interests. Additionally, this Article posits it is the responsibility of the regime itself to ensure full and fair representation of all affected interests, so failure to ensure fairness in representation would be a shortfall of the regime, not of the NGOs. Finally, the certification requirements established under this Article run the risk of privileging particular organizational forms. Requiring NGOs to conform to a particular organizational structure, while perhaps making them more easily verified and held to account, risks undermining cultural forms of organization and hierarchy, as well as the overall effectiveness of various organizations.288Internal accountability structures vary significantly by culture and must be weighed against local custom. International regimes seeking to validate domestic non-profit legal structures should not demand particular organizational forms, but should evaluate the appropriateness of domestic legal non-profit structures against the reasoning used by domestic governments. Therefore, while harmonization of domestic procedures is important in this context, it is also important to allow for local variation.289In applying context-dependent accountability controls, therefore, formalism can be the enemy of the One major obstacle is the requirement that NGOs be non-profit, which may require some states to redefine their tax codes, thereby contravening the will of the populace. Since the UN requires participating NGOs to be non-profit, this Article assumes this issue has not presented significant distributional equity problems, though it recognizes such concerns can 286. Riva Krut, Globalization and Civil Society: NGO Influence in International Decision-making 18-22 (United Nations Research Inst. for Soc. Dev., Discussion Paper No. 83, 1997), available at http:/lwww.unrisd.org (follow "site search" hyperlink; then search "Riva Krut"; then follow hyperlink to article). 287. This is the case because international NGOs can claim any beneficiary constituency and act on their behalf without accountability to the beneficiaries. This Article suggests a modification to this approach under certain circumstances, thereby either mandating greater direct representation of beneficiary interests or limiting NGO participation to those organizations sufficiently representative of beneficiary interests. 288. See Kingsbury, supra note 6, at 188-93. 289. See id. 290. See id. at 189.
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exist and should be dealt with on a case-by-case basis to ensure fair treatment across national borders. 4. Moral Hazard
There is potential concern the proceduralization of NGO participation in international governance might create a presumption of NGO accountability. This presumption, in turn, might lead some actors to give more credence to NGO positions than to other governance actors, such as states or other less procedurally governed entities. This concern is especially acute in enforcement situations where NGOs hold international governance regimes accountable. These NGOs might be less inclined to evaluate the regimes' performance (in holding the regime accountable) if NGOs are participating in the structure, even when the NGO is not acting as an accountability control to unwieldy regime power. This is a potential concern, but one easily avoided through clear and simple certification procedures which outline the exact reasons and functions the NGO is allowed to perform. Another moral hazard concern might present itself with respect to domestic certification requirements, whereby international regimes might presume domestically certified NGOs are proper participants in international governance and therefore over-include NGOs in the governance regime. These dangers, however, appear to be insignificant where proceduralization is designed to ensure greater accountability. Although formalization may increase legitimacy without increasing accountability, the system proposed by this Article is intended to ensure accountability and thereby avoid this problem. 5. Regime Accountability
Finally, significant concerns exist regarding overall regime accountability. Allowing the international regime to hold the NGO accountable or require particular mechanisms places strong power in the hands of the regime to dispel criticism by not accrediting NGOs with views critical of the regime. As has been noted before, real power is held by those who accredit the participating ~ ~ 0 sSome . ~have ~ 'taken the position greater inclusion is better, and therefore providing certification power to international regimes might increase their ability to restrict NGO participation to only weak or already co-opted organizations: "[ilf NGOs are to be held accountable to intergovernmental organizations, controlled ulti-
291. See Charnovitc supra note 1 1 1.
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mately by governments, their most outstanding virtue-independence from governmental authority-would be threatened."292 However, I do not share the conclusion this danger is so large as to warrant the application of external accountability only through peer and reputational accountab;lhy r n e ~ h a n ; s r n s . ~ ~ ~ While many NGOs do act through NGO networks, this is an issue separate from governance; peer accountability mechanisms are subject to failure through collusion, and normatively, NGOs not involved in governance have no or limited normative right to hold other NGOs accountable.2y4Additionally, reputational mechanisms, highly dependent upon the provision of perfect information, are likely to be more effective in ensuring internal NGO accountability to members than external accountability to beneficiaries, who are in a dependent situation. That is, donors may cease or reduce their donations to organizations, but so long as the organizations still have funding, it is likely the assistance such organizations seek to provide will not be significantly rejected by beneficiaries. In the governance context, however, this is a non-issue, since NGOs would be authorized to act under a contract to provide services on behalf of the regime, so controls other than reputational mechanisms would be applicable to hold NGOs accountable to beneficiaries under such circumstances. In a governance setting, NGOs are not necessarily weak actors and therefore accountability controls previously asserted as sufficient in the private NGO context are no longer so.295 As a result of this Article's reluctance to rely upon peer accountability controls, the framework proposed suggests the international regime be involved in ensuring NGO accountability to the regime. These concerns are significant in the context of holding the regime to account for its actions, but less so where the NGO is performing governance functions on behalf of the regime. Nevertheless, the concern of cooptation, although not significantly increased by this Article's framework over the status quo method of including NGOs, does counsel for the creation of an independent accreditation organization. This reviewing body would be based upon a pool of actors and should include, at a minimum, one standing, 292. Keohane, Commentary on the Democratic Accountability of Non-Governmental Organizations, supra note 67, at 478. 293. See id. 294. See Tanaka, supra note 285, at 120-35. 295. See Keohane, Commentary on the Democratic Accountability of Non-Governmental Organizations, supra note 67, at 479 ("[Slince NGOs are themselves relatively weak, their external accountability deficits are not as severe as the accountability deficits for other organizations in world politics.").
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independent member of the accreditation organization, one member of the international regime to which the NGO applied for participation in its governance activities, and an official from the country where the NGO's headquarters or field office is located, whichever is most pertinent to the particular issue and international organizational mission. This reviewing body should dispel most of the concerns associated with NGO cooptation and regime rent-seeking behavior. V. CONCLUSION This Article has reviewed accountability theories related to NGO involvement in international governance and found such theories lack precision and clarity and have proven to be overly general. NGOs may perform two major roles in governance: serving to act as accountability checks on international governance regimes or performing governance functions on behalf of those regimes. This Article focused primarily on the latter of the two roles, describing in detail in Part TI1 some of the varied functions NGOs have performed in international governance regimes. Deconstructing NGO participation in international governance reveals different accountability concerns are raised by the different functions performed by NGOs. As a result, accountability theory must recognize these differences and seek to apply controls based on the particular functions performed by NGOs. Part IV provides a starting point for such a function-based accountability theory. While a function-based framework may present some significant implementation challenges for international and domestic regimes, from both a normative and efficiency perspective, such an approach is highly desirable because it avoids over- and underinclusion of NGOs in governance and ensures greater competition between NGOs for the performance of particular functions, allowing international regimes to select the NGO best fit to perform the particular function. These implementation challenges warrant further study to detail the contours of a function-based accountability theory and to illustrate methods of determining the optimal balance between organizational and institutional costs and ensuring suitable levels of accountability to the appropriate individuals or entities.
Name Index Abrams, J . xxiv, 128
Bodansky, Daniel 165, 391
Addo, M. 127 Aideed, Mohammed 206 Albright, Madeleine 207,227 Alexy, Robert 199 Alexyde, Levan 379 Alford, R.R. 200 Allott, Philip xviii, 124, 141, 400 Alston, Philip xxvii, 139, 150 Alvarez, Jose 158 Aman, Alfred C. 60 Ammoun, Judge 137 Anaya, J. 121, 137 Anderson, Kenneth xx, 138, 163-5,22 1-50 Annan, Kofi 141-3, 162 Aquinas, St Thomas 243 Arangio-Ruiz, Gaetano xiv Arbour, Louise 212 Arend, Anthony C. xv Arendt, Hannah 52, 101, 116 Aristotle 116 Armstrong, James 384 Ascensio, Herve 3 19 Augustine, Saint 243 Aust, Anthony 198 Axworthy, Lloyd 238-9,241
Bodin, Jean 26, 376 Boli, J. 199 Bolton, John 163, 165 Borchard, Edwin 154 Borzel, Tanja A. 555, 572-3 Bourdieu, Pierre xii Boutros-Ghali, Boutros 66 Brandt, Richard 375 Breen, Claire xx Brett, Rachel 385,390 Brierly, James 37&7 Brolmann, Catherine M. 49 Brownlie, Ian 14 1,260, 380 Buchanan, Allen, E. xviii Burley, Anne-Marie 390 Bush, George H.W. 206
Bailey, Stanley H. 159 Baldwin, Simeon E. 148 Banarjee, Samir 397 Bartholomeusz, Lance xxi, 253-330 Bassiouni, M. Cherif 207, 378,481,484 Bastid, Suzanne 155 Beck, Ulrich 71 Berenstein, Alexandre 164 Berlin, Isaiah 106 Bettati, Mario 38 1 Bianchi, Andrea xi-xxx, 138, l 4 W l , 375408 Biersteker, T.J. 196 Bin Laden, Osama 45 Blair, Tony 2 13 Bluemel, Erik B. xxvi, 5 3 3 4 0 0 Bobbio, Norberto 375
Cameron, Maxwell A. 234, 241 Caroline of Monaco, Princess 280, 284 Carty, Anthony 88 Cassese, Antonio 121, 132, 48 1 Cerny, Philip 33 Charlesworth, H. 124, 137, 141 Charney, Jonathan I. 42, 375, 379 Charnovitz, Steve xix, 134, 147-71 Chayes, Abram 154 Chayes, Antonia 154 Cheng, Bin xiv Chinkin, Christine 124, 137, 141, 258,262, 289 Clapham, Andrew xvii, 127, I38 Clinton, Bill 300, 329 Combacau, Jean xvi Conforti, Benedetto 392,397 Cox, Larry 250 Cox, Robert 34-5 Crawford, James 128, 137, 164,397 Croley, S. 134 Cullen, H. 1 3 8 4 0 Cutler, A. Claire xvi, 19-36 D'Amato, Anthony 377, 396, 398 Dahl, Robert 54 1
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Danilenko, Gennady M. 379 De Witte, B. 135 Delbriick, Jost 60 Descartes, RenC 94 Detrick, Sharon 138, 383 Dettling, J. 375 Dine, J. 122 Dinstein, Y. 127 Donini, Antonio 147 Donoho, Douglas Lee 398 Drumbl, Mark 48 1 Drzemczewski, Andrew 387 Dupuy, Pierre-Marie xv, xvi, 133, 380-81 Epiney, Astrid xxii Esty, Daniel 161 Evan, William M. 376, 397 Evans, M. 502 Falk, Richard 126, 376 Feinberg, Nathan 170-7 1 Feliciano, Florentino 165 Fenwick, Charles 160 Forrester, Viviane 69 Forsythe, David P. 384 Foucault, Michel79-82, 89-95, 98-9 Franceschet, Antonio 189 Francioni, Francesco 395 Franck, Thomas M. xvi, xviii, 74, 141, 165 Friedland, R. 200 Friedman, Milton 425 Frowein, A. 379 Frowein, Jochen Abraham 72 Gaja, Giorgio 379-80 Galtung, Johan 399 Gill, Stephen 3 1, 35 Goldstone, Richard 207 Gomez Robledo, Antonio 379 Gordenker, Leon 62 Grant, Ruth W. 542-3, 546 Gray, C. 131 Grotius, Hugo 115, 244 Gualtieri, Alix Gowlland xxiii, 333-73 Guillaume, Gilbert 163, 266-7 Haarscher, Guy 398 Habermas, J. 199,201,218,243 Hall, Christopher 212-13 Hannikainen, Lauri 379
Hannum, Hurst 385 Haopei Li, Judge 476 Harries, Richard 398 Hart, Herbert L.A. xiii Hartley, Trevor 395 Hegel, Georg Wilhelm Friedrich 82, 109, 111-13 Heller, Hermann 71 Henkin, Louis 375, 399 Higgins, Rosalyn xv, 26, 124-5, 129, 154, 159, 379,399 Hirschman, Albert 546 Hobbes, Thomas 26, 82, 110-1 3, 117 Hobe, Stephan 60 Hohfeld, Wesley 126, 129 Holmes, Justice 175 Horowitz, Morton 24 Huber, Max 58 Humana, Charles 399 Hussein, Saddam 206 Jackson, J. 134 JacquC, Jean Paul 395 Jaenicke, Gunther 380 Janis, Mark 26 Jenks, C. Wilfred 68, 71, 155 Jennings, Robert xi, 396 Jessup, Philip 159 Johnston, Douglas 396 Joinet, Louis 470 Jones, Elwin 395 Joseph, Sarah xxiv Joyner, E. 375 Kaldor, Mary 555 Kamminga, Menko xx, xxi, 164,385 Kant, Immanuel 170-7 1 Karadzic, Radovan 40 Kaufmann, Wilhelm 148 Kay, Stephen 292,295 Kazansky, Pierre 160 Kelsen, Hans 85-7, 118 Kennedy, David 20-23 Keohane, Robert 0. 166,542-3,546,548,550 Ken; Brian 28 1 Kingsbury, Benedict xvi Kiss, Alexandre 158 Klabbers, Jan xiii, xvi, xxi, 37-55, 101 Knop, Karen 125, 137, 139 Koskenniemi, Martti xviii, 88, 124, 127, 141 Kostakopoulou, D. 141
Non-State Actors and International Law Krasner, Stephen 21 Kratochwil, Friedrich 195 Krisch, Nico xxvi La Forgia, R. 127 Lador-Lederer, J.J. 1 50 Lgm, M.C. 138 Lande, Adolf 159 Lasswell, Harold D. 396 Lauterpacht Hersch xi, xvi, xviii, 3-17, 21, 124, 3 93 Lawson, Robert J. 234 Le CarrC, John 505 Leary, Virginia 162, 382 Leibniz, Gottfried Wilhelm 110-1 1, 115 Lieber, Francis 149 Lillich, Richard B. 385 Lissitzyn, Oliver 159 Little, David 397 Lowe, V. 129 Luhmann, Niklas 389, 397, 399 Macalister-Smith, Peter 63 MacChesney, Brunson 173 MacCormack, Tim 297 MacCormick, Neil 376, 393 McCorquodale, Robert xvi, xix, xxv, 1 2 1 4 6 , 505-32 McDougal, Myres 161,396 McGoldrick, D. 128 Mackenzie, Ruth 258 McNair, Arnold xi Marks, Susan 137, 164 Marshall, Jill 493-504 Martens, Kerstin xix, xxi, 384 Masciulli, Joseph xix Mayer, Ann Elizabeth 398 Menon, P.K. 130 Meron, Theodor 15 1, 379, 397, 399,476 Mertus, Julie xv Milosevic, Slobodan 47, 54, 206, 292, 2 9 5 4 Mitrany, David 164 Morgan, Ed 43 Morrow, Dwight W. 150 Morrow, K. 1 3 8 4 0 Mosler, Hermann 72,380 Motala, A. 139 Muchlinski, P. 122 Miiller, Jorg Paul 58, 398
603
Nerfin, Marc 75 Nietzsche, Friedrich 94 Nijman, Janne E. xvii, xviii, 79-1 18, 123 Nino, Carlos Santiago 399 Noriega, Manuel 206 Nowrot, Karsten xvi Nye, Jospeh S. Jr. 166, 542-3, 546 Oda, Shigeru 163 Okeke, C.N. 51 Olleson, S. 128 Oppenheim, Lassa 72, 122, 14 1 Orakhelashvili, A. 123, 136 Orentlicher, Diane 298 Orrego-Vicufia, Francisco xxi Otto, D. 127, 139 Pace, William 138, 208-9 Paust, Jordan J. 389 Pellet, AIain 481 Pernthaler, Peter 77 Perry, Michael 205 Picone, Paolo 379 Pinochet, Augusto 462 Pisillo Mazzeschi, Riccardo 396 Politis, Nicholas 155 Posner, Michael H. 385-7 Pound, Roscoe 171 Prescott, Elizabeth xix Provost, R. 127 Pufendorf, Samuel von 110 Quaddafi. Muammar 206 Rajagopal, B. 140 Rajic, lvica 289 Ramcharan, B.G. 398 Ranjeva, Raymond 161 Ratner, S. xxiv, 128 Redfern, A. 133 Reinisch, August xxiii, 41 1-63 Reinsch, Paul I60 Reisman, W. Michael 74, 127 Renteln, A. 375 Ricardo, David 70 Ricoeur, Paul xviii, 79, 8 1-2, 88, 93-5, 97-1 02, 1 0 4 4 , 109, 111-14, 1 1 6 1 7 Rieff, David 163-5, 248-9 Risse, Thomas 555, 572-3 Roben, Volker xv
604
Non-State Actors and International Law
Robertson, Geoffrey 481 Robinson, Mary 481 Rodley, Nigel S. 385 Root, Elihu 148 Rosenne, Shabtai 257, 2 6 M 1 , 3 2 7 Roth, Kenneth 240 Ruggie, J.G. 195 Saladin, Peter 77 Sands, Philippe 128, 298 Sanger, Sophy 150 Scelle, Georges 124, 164 Schabas, William A. xxiv, 131, 465-91 Schachter, Oscar xx, 153, 173-82 Scharf, Michael 2 14 Schindler, Dietrich Sr. 57 Schlag, Pierre xxviii, 22 Scholte, Jan 30 Schreuer, Christoph 59, 141, 379, 391, 399 Schrijver, Nico 481 Schucking, Walther 164 Schwebel, Stephen M. 379 Scoble, Harry M. 384 Sen, Amartya 106 Shahabuddeen, Judge 293-5 Shaw, M.N. 21 Shelton, Dinah xxi, 131, 140, 152, 158, 383 Shestack, Jerome J. 398 Sicilianos, Linos-Alexandre 379 Sieghart, Paul 377 Sikkink, Kathryn 386, 390 Simma, Bruno 72 Simons, Penelope xxv, 505-32 Singh, Nagendra 136 Skurbaty, Zelim 55 Slaughter, Anne-Marie 42 Smith, Adam 70 Sobrino Heredia, Jose M. 387 Sohn, Louis 171 Somarajah, M. 133 Spruyt, Hendrik 41 Steiner, H. 126, 139 Stem, Brigitte xxii, 300,307, 328 Strange, Susan 23,3 1 Struett. Michael J. xx, 187-219
Summers, Robert S. 393 Sunga, Lyal378 Taylor, Charles 113-14 Taylor, Charles Ghankay 297-8 Teson, Ferdinand0 141, 398 Teubner, G. 3 7 5 4 , 3 8 9 Thieroff, M. 138 Thomas, G.M. 199 Thoolen, Hans 384 Thurer, Daniel xvi, xviii, 57-78 Tomlin, Brian W. 234 Tomuschat, Christian 72 Trindade, Canqado 142 Troost, Lars van 2 13 Ulrich, Peter 76 Van Boven, T. 138-9 Vattel, Emerich de 141 Vbquez, Carlos M. 140 Verdross, Alfred 72 Verstappen, Berth 384 Vitoria, Francisco de 121 Walzer, Michael 24, 70 Warbrick, C. 124, 129 Watts, Arthur mi, 3 17,396 Weber, C. 196 Weil, Prosper xiv, 380 Weiler, Joseph 380 Weiss, Thomas G. 62 Weissbrodt, David 381, 387 Westlake, John 15, 72 White, Lyman 169 Willetts, Peter 388 Williams, Jody 161 Wiseberg, Laurie S. 384, 387 Wladimiroff, Mr 296 Wolf, Francis 382 Wright, Marcheta L. 388-9 Wright, Quincy 160 Wright, S. 141 Young, I.M. 137
ISBN
978-0-7546-2833-
