11 Wake Forest L. Rev. Online 147

Imad Antoine Ibrahim,* Sandrine Maljean-Dubois,**
& Jessica Owley***

Without an international tribunal or tools like trade sanctions, there is little to coerce or encourage adherence with environmental treaties.  The Paris Agreement, the governing global agreement to address climate change, relies on voluntary global cooperation.  Countries determine their own commitments by setting nationally determined contributions of greenhouse gases emissions.  The main mandatory elements of the agreement are reporting requirements.  The success of the agreement turns on whether countries comply with these requirements.  Article 15 of the Paris Agreement establishes a Compliance Committee and sets forth the mechanisms to ensure and facilitate compliance with the agreement.  Yet, as with the rest of the Paris Agreement, Article 15 does not have teeth and relies on the good behavior of the countries of the world.  This brief contribution describes the mechanics of Article 15 while also highlighting concerns and issues at stake.  This background should be helpful in responding to COP 26 in Glasgow and beyond.

Introduction

The implementation of international law suffers from longstanding difficulties.  A treaty’s terms could be eloquent or powerful, but without mechanisms to carry out or implement the treaty, it remains symbolic.[1]  Implementation consists of measures—legislative, administrative, or judicial—that signatories take to make international agreements operative under international and domestic law.[2]  Traditional means of response to violations of international obligations (like trade sanctions or international tribunals) do not fit the needs of the environmental field.[3]  Even though international dispute settlement mechanisms are developing, they are still uncommon and lack an established pattern.[4]  Overall, they are poorly tailored mechanisms for enforcing compliance with multilateral environmental treaties.[5]  Countermeasures are not particularly suited for environmental protection because states’ obligations are nonreciprocal and are based on a common interest.[6]

One way to address these implementation challenges and enhance environmental protection is to improve the monitoring and response mechanisms for noncompliance.[7]  Such monitoring must be tailored to the peculiarities of this specific field of international cooperation.[8]  In implementing the Paris Agreement (“the Agreement”),[9] the parties to the Agreement (“the Parties”) have chosen not to pursue traditional treaty compliance mechanisms.[10]  Considering the common interest pursued, Parties viewed financial and technical assistance to those struggling with compliance as preferable to imposing liability on those not in compliance with their climate change obligations.[11]  That is, the majority of Parties believed it is more important to promote compliance than to punish noncompliance, especially as the use of sanctions would discourage countries’ participation in the treaty and thus encourage free riding.[12]

All these factors prompted efforts to prevent disputes and introduce innovative international monitoring procedures—inspired in part by tried and tested methods in other legal fields (such as human rights).[13]  Since the 1990s, several environmental agreements have succeeded in reinventing themselves and established reporting and other monitoring methods (monitoring networks, inquiries, etc.) with more specific, ambitious, global, and coherent mechanisms to institutionalize monitoring and response to noncompliance.[14]  The first noncompliance procedure for environmental agreements—drawn up in 1990 in the framework of the Montreal Protocol of the ozone regime[15]—has been taken up and adapted by other environmental conventions, slowly becoming a standard practice.[16]  Although inspired by the Montreal Protocol model, all these procedures have peculiarities of their own.

The Kyoto Protocol of the climate change regime gave rise to the most comprehensive and intrusive noncompliance procedure to date.[17]  Divided into two branches—a facilitative branch and an enforcement branch—the Kyoto Protocol’s compliance committee was quasi-judicial.[18]  Potential sanctions were essentially intended to be dissuasive.

To convince (almost) all countries to become signatories, the form and substance of the Agreement differs from that of its predecessor, the Kyoto Protocol.[19]  The Agreement is more flexible.  It is based on contributions nationally determined by Parties,[20] making the provisions ensuring transparency and control all the more important.  These provisions introduce “top-down” enforcement mechanisms into an enforcement scheme that is mostly “bottom-up,” the Parties determining the content of their contributions for themselves.[21]  The compliance provisions play a major role: the provisions foster confidence among Parties (thereby hopefully leading them to increase their commitment), and enable the monitoring of the Parties’ efforts to ensure conformance with the global target emissions trajectory.[22]  Negotiators were well aware of the importance of these provisions and special care was dedicated to this matter on which a great part of the robustness of the Agreement depended.[23]  The control and implementation procedure takes the form of a triptych composed of three articulated parts: (1) the transparency framework (Article 13),[24] (2) the global stocktake (Article 14),[25] and (3) the compliance mechanism (Article 15).[26]  This Article examines the compliance mechanism of Article 15 and explains how it works, its remaining controversies, and ideas for how to move beyond the twenty-sixth annual Conference of the Parties (“COP”) in Glasgow.[27]

I. Key Features

A. History

The negotiators of the Agreement dedicated special care to the procedure to facilitate implementation and promote compliance on which a great part of the robustness of the Agreement depends.[28]  The structure of the adopted provisions comes from the efforts of an informal group of key negotiators—a coalition of developing and developed countries—including in particular South Africa, the European Union, the United States, Switzerland, New Zealand, Australia, and Singapore.[29] This informal group of countries, referred to as “friends of rules,” was formed after the Lima Climate Change Conference (“Lima Conference”) in 2014.  Members of the friends of rules realized during the Lima Conference that the rules of the game—which are of great significance for the integrity and effectiveness of the Agreement—were being rushed through by a process focused mostly on political questions.[30]  The Agreement gives a glimpse of a procedure that respects sovereignties but can ensure the accountability of the States, in the sense of being “in a position to be held responsible in the broad sense of the term.”[31]

The Agreement lays down fundamental principles in Articles 13 to 15.[32]  It was up to the subsequent meetings of the Parties to operationalize these principles.[33]  Given that in these matters the devil is in the details, the effectiveness of the mechanism thus depended on the operationalization decisions.[34]  Negotiations, which were difficult, concluded in 2018 during COP 24 in Katowice, Poland.[35]  During a “Conference of the Parties serving as the meeting of the Parties to the Paris Agreement,” also called “CMA,” the Parties adopted a series of decisions that gave the details for how the Agreement would function.[36]  These decisions are sometimes referred to as the “Paris Rulebook” or the “Katowice Workplan.”[37]  The key rules that guide compliance with the Agreement are 18/CMA.1 (“Modalities, procedures and guidelines for the transparency framework for action and support referred to in Article 13 of the Paris Agreement”),[38] 19/CMA.1 (“Matters relating to Article 14 of the Paris Agreement and paragraphs 99–101 of decision 1/CP.21”),[39] and 20/CMA.1 (“Modalities and procedures for the effective operation of the committee to facilitate implementation and promote compliance referred to in Article 15, paragraph 2, of the Paris Agreement”).[40]

While this Article focuses on the compliance mechanism (that is, Article 15 and associated rule 20/CMA.1), the compliance mechanism is best understood as part of a trio that includes transparency and the global stocktake.  Transparency rules help the Parties understand and access the Agreement’s processes and reporting requirements.[41]  The global stocktake is a mechanism to assess the progress (or lack thereof) made globally and by individual Parties in attaining the nationally determined contributions (“NDCs”) and other broad goals of the Agreement.[42]

B. Purpose and Nature of the Compliance Mechanism

Article 15 establishes a committee “to facilitate implementation” and “promote compliance” with the “provisions of this Agreement.”[43]  This language is the result of a compromise among the Parties.  Initial discussions centered on determining the two different (or perhaps not so different) roles for the Compliance Committee (commonly referred to as “the Committee” or “Article 15 Committee” and sometimes as the “Paris Implementation and Compliance Committee” or “PAICC”).[44]  Some Parties lobbied for strong compliance rules with sanctions while others wanted a purely voluntary agreement without a compliance mechanism.[45]  The compromise created a Committee without teeth, one that promotes instead of enforces.

There was also debate surrounding the “provisions of this Agreement” phrase regarding whether the Committee would review only mandatory obligations or also nonmandatory obligations.[46]  The Parties now seem to agree that “facilitating implementation” applies to all parts of the Agreement, while “promoting compliance” only refers to the mandatory elements and is therefore mandatory, largely centered on reporting requirements.[47]  The modalities (discussed below) detail how the facilitation will occur.[48]

Use of the terms “facilitate” and “promote” in Article 15.1[49] indicates that the Committee is to play an assisting role, helping Parties figure out how to comply with the Agreement and not judging whether they have (and importantly not sanctioning them when they do not).[50]  Article 15.2 requires that the Committee be “expert-based and facilitative” while functioning in a “transparent, non-adversarial and non-punitive” manner.[51]  The language of Article 15.2 deepens the view of the Committee as a “help desk,” as some commenters have labeled it.[52]  Such a role could include helping to coordinate technical assistance or assisting parties to understand funding opportunities.[53]

Importantly, the Parties decided that the compliance mechanism would not be adjudicative or punitive.[54]  The Committee is not a tribunal.[55]  It cannot penalize Parties for failure to submit NDCs or for failure to meet NDCs.[56]  Despite an apparent lack of teeth, Parties seem to view this soft compliance provision as having substantive implications.[57]  Parties hope that together with the transparency framework, the Article 15 Committee’s identification of noncompliance will spur action, but the Committee has no ability to ensure compliance.[58]

The Paris Rulebook protects the facilitative nature of the Committee by emphasizing it will not “function as an enforcement or dispute settlement mechanism.”[59]  While all the Parties are subject to the same compliance mechanisms,[60] the Paris Rulebook addresses differences in national capacities and capabilities by emphasizing the need for flexibility and understanding of the situations in different countries.

C. Composition and Functioning of the Committee

The decision document adopting the Agreement provided further details on the Committee.[61]  It is COP decision 1/CP.21 section 102 that explains the Committee will be composed of twelve members with recognized expertise in “relevant scientific, technical, socioeconomic or legal fields.”[62]  The CMA elects the members, and it must consider gender balance and geographical representation when it does so.[63]

The Paris Rulebook provides the details for the Committee’s operation, explaining that the members shall be elected by the Parties and serve for three years with a maximum of two consecutive terms.[64]  The first twelve-person committee was elected following COP 25 in Madrid.[65]  Once formed, the Committee elected two co-chairs.[66]  The Committee is to meet at least twice a year and is encouraged to hold meetings “in conjunction with the sessions of the subsidiary bodies” serving the Agreement.[67] 

While the Committee is to operate in a “manner that is transparent,”[68] its proceedings are confidential.[69]  Committee member meetings are closed with only members, alternates, and secretariat officials allowed to be present.[70]  The Committee is to “make every effort to reach agreement on any decision by consensus” but can resort to voting with three-quarters majority of those present and participating.[71]  The Committee annually reports to the CMA but the nature of the reports is not yet clear.[72]  The first report was a proposal for the rules of procedure.[73]  These rules detail the roles of the members, co-chairs, timelines, and the reasoning and deliberation processes for the Committee.[74] They were adopted at CMA 3 in Glasgow, which then encouraged the Committee to move to substantive matters.[75]

D. Process

Article 15.1 states that the Committee’s competencies are related to all the provisions of the Agreement,[76] which leaves room for interpretation.  Calls were made to limit the scope of the Committee’s operations by explicitly specifying and limiting the provisions within the scope of the Committee’s work.[77]  The sources of information on the basis of which the Committee shall evaluate compliance with the agreement are mentioned in Articles 4 and 13.[78]

Under Article 4, Parties shall “prepare, communicate and maintain successive nationally determined contributions that [they] intend[] to achieve.”[79]  Article 4 then goes on to precisely outline other details relevant to the submission of the NDCs.  For example, Article 4 differentiates responsibilities between developed countries on the one hand and developing, least developed, and small-island developing countries on the other hand.[80]  Article 4.4 encourages developing countries to reach their emission reduction targets in accordance with different national circumstances.[81]  Moreover, a party can adjust its NDCs at any time “with a view to enhancing its level of ambition.”[82]  A special acknowledgement of the “Parties with economies most affected by the impacts of response measures, particularly developing country Parties” was made, requiring consideration of their concerns in the implementation of the Agreement.[83]

Article 4 outlines obligations related to NDCs, while Article 13 requires Parties to report other types of information.[84]  For example, Article 13.7 requires Parties to provide “[a] national inventory report of anthropogenic emissions by sources and removals by sinks of greenhouse gases” and “[i]nformation necessary to track progress made in implementing and achieving its nationally determined contribution.”[85]  Some reporting requirements are correlated to the status of the country involved.  For example, developed countries provide “information on financial, technology transfer and capacity-building support” while developing countries provide information on the support needed.[86]  There are even mechanisms to help some countries comply with their reporting requirements; developing countries can get assistance in identifying capacity-building needs after technical expert review.[87]

It is important to understand the reporting requirements of Articles 4 and 13 because compliance with these requirements will likely be a central task for the Committee.  Reporting on NDCs and the compliance process occurs in the context of a “transparency framework for action and support, with built-in flexibility, which takes into account Parties’ different capacities and builds upon collective experience.”[88]  The framework acknowledges special circumstances of the least-developed countries and small-island developing states.[89]  Transparency arrangements include “national communications, biennial reports and biennial update reports, international assessment and review and international consultation and analysis.”[90]  The framework for transparency of action requires clarity of the progress made by the Parties to reach the objectives of the Agreement, while the framework for transparency of support tracks the support provided and received by the countries.[91]  Matters related to compliance can be raised by self-referral[92] or by the Committee.[93]  When a compliance matter originates with the Committee, it is either automatically or discretionarily initiated.[94] If a violation is automatically initiated, it is initiated by a violation of specified legally binding provisions of the Agreement in accordance with paragraph 22(a).[95] If a violation is discretionarily initiated, it is initiated with the consent of the concerned Party and involves cases of significant and persistent inconsistencies of the information submitted under Articles 13.7 and 13.9.[96]

The role of the Committee is a facilitative one, and it must adopt a nonadversarial and nonpunitive approach.  Still, the Committee has several options aimed at either facilitating implementation or promoting compliance:

(a) Engage in a dialogue with the Party concerned with the purpose of identifying challenges, making recommendations and sharing information, including in relation to accessing finance, technology and capacity-building support, as appropriate;

(b) Assist the Party concerned in the engagement with the appropriate finance, technology and capacity-building bodies or arrangements under or serving the Paris Agreement in order to identify possible challenges and solutions;

(c) Make recommendations to the Party concerned with regard to challenges and solutions referred to in paragraph 30(b) above and communicate such recommendations, with the consent of the Party concerned, to the relevant bodies or arrangements, as appropriate;

(d) Recommend the development of an action plan and, if so requested, assist the Party concerned in developing the plan;

(e) Issue findings of fact in relation to matters of implementation and compliance referred to in paragraph 22(a) above.[97]

Finally, recurrent issues, including barriers to implementation and compliance, “could hinder implementation of the agreement as a whole.”[98]  Unlike issues of individual Parties, systemic issues apply to the process and include things like due process rights.[99]  These cross-cutting issues can be tackled with collective recommendations and not just individual ones.[100]  Examples of systemic issues include:

the implementation of Parties’ reporting obligations under Articles 9 (on past and projected future provision and mobilization of financial resources) and 13 (on emissions and the implementation of NDCs as well as on support provided by developed countries), the actual enhancement of financial, technology transfer, and capacity-building support under Articles 9, 10, and 11; the submission of adaptation communications under Article 7; or action taken to conserve and enhance sinks and reservoirs of greenhouse gases under Article 5.1, among other things.[101]

Nothing in Article 15 prevents the Committee from addressing systemic issues.[102]  In fact, the “Committee may identify issues of a systemic nature with respect to the implementation of and compliance with the provisions of the Paris Agreement faced by a number of Parties”[103] but “shall not address matters that relate to the implementation of and compliance with the provisions of the Paris Agreement by an individual Party.”[104]

II. Overall Assessment and Future Prospects

From the analysis above, it seems that the compliance mechanism of the Agreement should provide the Committee with the power to make recommendations to the CMA, which would make the final decision.  If so, then the effectiveness of the compliance mechanism will depend on the willingness of a noncompliant Party to honor its commitments and apply the recommendations.[105]  Hence, the compliance mechanism should have a technical/political approach to be successful. Such an approach is crucial as the introduction of enforcement tools may push Parties to withdraw from the Agreement instead of confronting the negative consequences of noncompliance.[106]  The coming few years will tell whether the mechanism has been effective and the potential role that this mechanism can play as the Parties work to comply with the transparency framework of Article 13.

Conclusion

The review of compliance will occur by 2024.[107]  Until then, the Parties must fulfill the annual reporting requirements, which will then go through two review mechanisms: a Technical Expert Review (“TER”) and another form of peer review called Facilitative Multilateral Consideration of Progress (“FMCP”).[108]

Parties might leave the Agreement if the compliance mechanism does not account for their differing capacities and interests while ensuring its technical implementation.  Ensuring compliance will be the mark of success of the Agreement.[109]  The Agreement offered a pragmatic approach to ensure compliance by accepting that “most major emitters are reluctant to tie themselves into a rigid set of predetermined emissions reductions that are legally binding” and sidestepping the distributional conflict inherent in negotiating mitigation targets.[110]  Embracing this approach offered more chances for Parties to implement their NDCs and all the technical elements stipulated within the Agreement.[111]  But to reach this objective, there is a need to consider the suggestions made by different legal scholars to enhance the compliance mechanism and the Agreement in general.[112]

If the compliance mechanism succeeds in its mission, the mechanism would become a role model for other environmental treaties.  Success, however, will only occur by adopting a hybrid technical/political approach that balances the need to comply with the Agreement with Parties’ interests and capacities.  The alternative is a compliance mechanism no one complies with.

*.   Center for Law & Development, College of Law, Qatar University, Qatar.

**.    CERIC, CNRS & Aiz-Marseille University, France.

***.    University of Miami School of Law, United States.  The authors are members of the IUCN’s World Commission on Environmental Law.  This policy brief was prepared in conjunction with the Climate Change Specialist group as part of a larger effort to help people understand and respond to COP 26.  We thank Christina Voigt for spearheading the project and Lisa Benjamin for her comments on earlier drafts.

      [1].   See Sander Happaerts, Sustainable Development and Subnational Governments: Going Beyond Symbolic Politics?, 4 Env’t Dev. 2, 10 (2012); see also Dirk Matten, Symbolic Politics in Environmental Regulation: Corporate Strategic Responses, 12 Bus. Strategy & Env’t 215, 216 (2003) (discussing these issues in a domestic context and specifically related to environmental regulations).  That is not to say that symbols cannot advance environmental or social goals, but we must then acknowledge the role the international agreement is playing.

      [2].   See generally Ulrich Beyerlin & Thilo Marauhn, International Environmental Law (2011) (describing the important elements of national implementation of international environmental law and the requirements imposed by international environmental law with respect to national implementation).

      [3].   See generally The Effectiveness of International Environmental Regimes: Causal Connections and Behavioral Mechanisms (Oran R. Young ed., 1999) (examining how international regimes influence the behavior of their members and actors operating under their members’ jurisdiction).

      [4].   See Rüdiger Wolfrum, Means of Ensuring Compliance with and Enforcement of International Environmental Law, 272 Collected Courses Hague Acad. Int’l L. 9, 96–99 (1998).

      [5].   See id.

      [6].   See id. at 98–100.

      [7].   See Peter H. Sand, The Effectiveness of International Environmental Law: A Survey of Existing Legal Instruments 30, 40, 47 (1992).

      [8].   See generally Implementation of International Environmental Law (Sandrine Maljean-Dubois & Lavanya Rajamani eds., 2011) (detailing concerns related to soft law instruments, treaties with imprecise contextual and discretion-laden obligations, institutions with weak and overlapping mandates, poor or even perverse incentives for compliance, sanctions without teeth, and resource and capacity constraints at the domestic level).

      [9].   Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104.

     [10].   See generally Michaela Danneman, The Paris Agreement’s Compliance Mechanism (2016) (International Environmental Law thesis, Stockholm University), https://www.diva-portal.org/smash/get/diva2:1049560/FULLTEXT01.pdf (explaining and analyzing the intricacies of the Agreement’s compliance mechanisms).

     [11].   See id. (describing how “focus when addressing non-compliance with environmental obligations have [sic] moved away from . . . trying to determine liability and remedies for damages caused, to preventing them occurring and if they do occur, resolving them peacefully in a non-contentious and non-adversarial manner”).

     [12].   See Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with Treaties in International Regulatory Regimes 2–4 (1995).

     [13].   See Office of the High Commissioner for Human Rights, Response to the Request of Ad Hoc Working Group on the Paris Agreement 2–4 (2017), https://www.ohchr.org/Documents/Issues/ClimateChange/OHCHR_APA%20submission_May2017.pdf.

     [14].   See Lindsay Maizland, Global Climate Agreements: Successes and Failures, Council on Foreign Rels. (Oct. 29, 2021, 9:00 AM), https://www.cfr.org/backgrounder/paris-global-climate-change-agreements.

      [15].   The Montreal Protocol on Substances that Deplete the Ozone Layer art. 10, June 29, 1990, 30 I.L.M. 537 (establishing the financial mechanism for developed countries to provide financial and technical assistance to developing countries).

     [16].   See, e.g., Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan. 29, 2000, 39 I.L.M. 1027; Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25, 1998, 2161 U.N.T.S. 447; Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, 18 I.L.M. 1442.

     [17].   See Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 2303 U.N.T.S. 162; see also Malgosia Fitzmaurice, The Kyoto Protocol Compliance Regime and Treaty Law, 8 Sing. Year Book Int’l L. 23, 24, 26–27, 40 (2004).

     [18].   See Andries Nentjes & Ger Klaassen, On the Quality of Compliance Mechanisms in the Kyoto Protocol, 32 Energy Pol’y 531, 531, 542 (2004) (describing the compliance mechanisms and the two branches).

     [19].   See Brad Plumer, Past Climate Treaties Failed. So the Paris Deal Will Try Something Radically Different., Vox (Dec. 14, 2015, 10:50 AM), https://www.vox.com/2015/12/14/10105422/paris-climate-deal-history.

     [20].   See id.

     [21].   See Christina Voigt, The Compliance and Implementation Mechanism of the Paris Agreement, 25 Rev. Eur. Cmty. & Int’l Env’t L. 161, 161 (2016) (discussing “the bottom-up approach” of the Agreement).  See also Paris Agreement, supra note 9, at arts. 6.4, 15.1., 15.2 (establishing “[a] mechanism to facilitate implementation of and promote compliance with” the Agreement, which is “facilitative in nature . . . and non-punitive” and therefore used “on a voluntary basis”).

      [22].   See Paris Agreement, supra note 9, at art. 13.1 (creating “an enhanced transparency framework” so that Parties can “build mutual trust and confidence . . . to promote effective implementation”).

     [23].   See Voigt, supra note 21, at 164 (discussing the “week-long facilitated negotiations” that resulted in compliance provisions and marked “a significant achievement” in light of “long-standing opposition to any compliance arrangement”).

     [24].   Paris Agreement, supra note 9, at art. 13.

     [25].   Id. at art. 14.

     [26].   Id. at art. 15.

     [27].   Although the Parties are supposed to meet annually, no meeting (or COP as they are called) was held in 2020.  Press Release, COP Bureau of the United Nations Framework Convention on Climate Change, COP26 Postponed (Apr. 1, 2020), https://unfccc.int/news/cop26-postponed.  COP 26 began on October 31, 2021.  Lisa Friedman, What Is COP26? And Other Questions About the Big U.N. Climate Summit, N.Y. Times (Oct. 27, 2021, 3:18 PM), https://www.nytimes.com/article/what-is-cop26-climate-change-summit.html.

     [28].   See Voigt, supra note 21, at 164.

     [29].   Lavanya Rajamani, Ambition and Differentiation in the 2015 Paris Agreement: Interpretive Possibilities and Underlying Politics, 65 Int’l & Compar. L. Q. 493, 500 (2016).

     [30].   Daniel Bodansky, The Paris Climate Change Agreement: A New Hope?, 110 Am. J. Int’l L. 288, 301 (2016) (describing the “friends of rules” group and its efforts).

     [31].   Vanessa Richard, L’accountability Comme Alternative à la Responsabilité? Réflexions en Droit International de l’Environnement, in Droit, Sciences Et Techniques, Quelles Responsabilités? 523, 523 (Sandrine Maljean-Dubois trans., Etienne Vergès ed., 2011), https://halshs.archives-ouvertes.fr/halshs-00799686/document.

     [32].   See Paris Agreement, supra note 9, at art. 13–15.

     [33].   See, e.g., Brad Plumer, Climate Negotiators Reach an Overtime Deal to Keep Paris Pact Alive, N.Y. Times (Dec. 15, 2018), https://www.nytimes.com/2018/12/15/climate/cop24-katowice-climate-summit.html.

     [34].   See id. (describing “a detailed set of rules to implement the pact” as “what we need to get the Paris Agreement off the ground” and thus “build a virtuous cycle of trust and cooperation among countries”).

     [35].   See id. (reporting that “[d]iplomats from nearly 200 countries reached a deal . . . after an all-night bargaining session” in Katowice, Poland).

     [36].   See id. (discussing “a uniform set of standards for measuring [signatories’] planet-warming emissions and tracking their climate policies” for purposes of the Agreement’s implementation).

     [37].   See id. (referring to the deal as “the Paris rule book”); COP 24, UN Women, https://www.unwomen.org/en/how-we-work/intergovernmental-support/climate-change-and-the-environment/united-nations-framework-convention-on-climate-change/cop-24 (last visited Nov. 10, 2021) (referring to the deal as the “Katowice Workplan”).

     [38].   Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement, Report of the Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement on the Third Part of its First Session, Held in Katowice from 2 to 15 December 2018, U.N. Doc. FCCC/PA/CMA/2018/3/Add.2, at 61 (Mar. 19, 2019) [hereinafter, Report of the Conference Held in Katowice from 2 to 15 December 2018].

     [39].   See id. at 53–58.

     [40].   See id. at 59–65.

     [41].   See Catherine Martini, Transparency: The Backbone of the Paris Agreement, Yale Ctr. for Env’t. L. & Pol’y. (May 29, 2016), https://envirocenter.yale.edu/transparency-the-backbone-of-the-Paris-Agreement.

     [42].   Global Stocktake, United Nations Framework Convention on Climate Change, https://unfccc.int/topics/global-stocktake (last visited Nov. 10, 2021).

     [43].   Paris Agreement, supra note 9, at art. 15.1.

     [44].   Gu Zihua et al., Facilitating Implementation and Promoting Compliance with the Paris Agreement Under Article 15: Conceptual Challenges and Pragmatic Choices, 9 Climate L. 65, 67 (2019); Paris Agreement Implementation and Compliance Committee (“PAICC” Adopts Work Plan for 2020-21, United Nations Climate Change (Nov. 6, 2020), https://unfccc.int/news/paris-agreement-implementation-and-compliance-committee-paicc-adopts-work-plan-for-2020-21.

     [45].   Id. at 69–70, 82.

     [46].   See, e.g., Lisa Benjamin, R. Hayes & B. Rudyk. Article 15 Compliance Mechanism, in A Commentary on the Paris Agreement on Climate Change (Geert Van Calster & Leonie Reins eds., 2021) (forthcoming 2021).

     [47].   Lavanya Rajamani, Elaborating the Paris Agreement: Implementation and Compliance 3 (2017), https://www.c2es.org/wp-content/uploads/2017/11/elaborating-the-paris-agreement-implementation-and-compliance-11-17.pdf.

     [48].   See infra text accompanying notes 64–75.

     [49].   Paris Agreement, supra note 9, at art. 15.1.

      [50].   Rajamani, supra note 47, at 4.

     [51].   Paris Agreement, supra note 9, at art. 15.2.

     [52].   Susan Biniaz, Institut du Développement Durable et des Relations Internationales, Elaborating Article 15 of the Paris Agreement: Facilitating Implementation and Promoting Compliance 2 (2017).

      [53].   See id.

     [54].   Rajamani, supra note 47, at 1.

     [55].   Id.

     [56].   See Biniaz, supra note 52, at 1–2.

     [57].   Rajamani, supra note 47, at 1–2.

     [58].   Id. at 1–4.

     [59].   Alicia Nicholls, COP 24: Paris Agreement Rule Book Agreed but Is It Enough?, Caribbean Trade L. & Dev. (Dec. 18, 2018), https://caribbeantradelaw.com/2018/12/18/cop-24-paris-agreement-rule-book-agreed-but-is-it-enough/.

     [60].   See Paris Agreement, supra note 9, at art. 15.

     [61].   Conference of the Parties, Report of the Conference of the Parties on its Twenty-First Session, Held in Paris from 30 November to 13 December 2015, U.N. Doc. FCCC/CP/2015/10/Add.2, at 1 (2016), https://unfccc.int/resource/docs/2015/cop21/eng/10.pdf.

     [62].   Id. at 2, 15.

     [63].   Id.

     [64].   Navigating The Paris Agreement Rulebook: Compliance Deeper Dive, World Res. Inst., https://www.wri.org/paris-rulebook (last visited Nov. 10, 2021).  In the first year, six members were elected to two-year terms and six were elected to three-year terms.  Id.

     [65].   Key Paris Agreement Implementation and Compliance Work Initiated, United Nations Framework Convention on Climate Change (June 26, 2020), https://unfccc.int/news/key-paris-agreement-implementation-and-compliance-work-initiated.

     [66].   Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement, Report of the Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement on its Second Session, Held in Madrid from 2 to 15 December 2019, U.N. Doc. FCCC/PA/CMA/2019/6/Add.1, at 13 (Mar. 16, 2020), https://unfccc.int/sites/default/files/resource/cma2019_06E.pdf.

     [67].   Id. at 14.

      [68].   Paris Agreement, supra note 9, at art. 15.2.

     [69].   Comm. to Facilitate Implementation & Promote Compliance Referred to in Article 15, Paragraph 2, of the Paris Agreement, Rep. of the Second Meeting of the Comm. Referred to in Article 15, Paragraph 2, of the Paris Agreement, U.N. Doc. PAICC/2020/M2/7, at 2.1.6 (2020), https://unfccc.int/sites/default/files/resource/PAICC_2020M_2_7_Meeting%20report%20with%20annexes_final.pdf.

     [70].   Report of the Conference Held in Katowice from 2 to 15 December 2018, supra note 38, at 61.

     [71].   Id.; see also Anju Sharma et al., Eur. Capacity Building Initiative, COP24 Key Outcomes 15 (2019), https://ecbi.org/sites/default/files/COP24Outcomes%20Final_0.pdf

     [72].   Paris Agreement, supra note 9, at art. 15.3.

     [73].   See Jennifer Huang, Ctr. for Climate & Energy Solutions, A Brief Guide to the Paris Agreement and ‘Rulebook’ 5 (2019), https://www.c2es.org/wp-content/uploads/2019/06/paris-agreement-and-rulebook-guide.pdf; id. at art. 15.3 (mandating that the Committee adopt rules of procedures during its first session).

     [74].   Report of the Conference Held in Katowice from 2 to 15 December 2018, supra note 38, at 61.

      [75].   See generally Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement, Report of the Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement Third Session, Held in Glasgow from 31 October to 12 November 2021, U.N. Doc. FCCC/PA/CMA/2021/L.1, at 61 (Mar. 19, 2019) (explaining these adopted provisions).

     [76].   Paris Agreement, supra note 9, at art. 15.1 (establishing the Committee as “[a] mechanism to facilitate implementation of and promote compliance with the provisions of” the Paris Agreement).

     [77].   Sebastian Oberthür & Eliza Northrop, The Mechanism to Facilitate Implementation and Promote Compliance with the Paris Agreement: Design Options 9 (World Res. Inst., Project for Advancing Climate Transparency, Working Paper, 2018), https://files.wri.org/d8/s3fs-public/mechanism-facilitate-implementation-promote-compliance-paris-agreement-design-options.pdf.

     [78].   Paris Agreement, supra note 9, at arts. 4.2, 4.4, 4.8, 4.13, 13.7–13.10.

     [79].   Id. at art. 4.2.

     [80].   Id. at arts. 4.2–4.6.

     [81].   Id. at art. 4.4.

     [82].   Id. at art. 4.11.

     [83].   Id. at art. 4.15.

     [84].   Id. at arts. 4, 13.7–13.10.

     [85].   Id. at arts. 13.7(a)–(b).

     [86].   Id. at arts. 13.9–13.10.

     [87].   Id. at art. 13.11.

     [88].   Id. at art. 13.1.

     [89].   Id. at art. 13.3.

     [90].   Id. at art. 13.4.

     [91].   Id. at arts. 13.5–13.6.

     [92].   Report of the Conference Held in Katowice from 2 to 15 December 2018, supra note 38, at 61.

     [93].   Id. at 61–62.

     [94].   Id. at 62 (discussing automatic initiations); Christina Voigt, The ‘Article 15 Committee’ to Facilitate Implementation and Promote Compliance, Eur. Roundtable on Climate Change & Sustainable Transition 3 (Apr. 15, 2019), https://ercst.org/the-article-15-committee-to-facilitate-implementation-and-promote-compliance (discussing discretionary initiations).

     [95].   Id. at 62.

     [96].   Voigt, supra note 94, at 3.

     [97].   Report of the Conference Held in Katowice from 2 to 15 December 2018, supra note 38, at 63.

     [98].   Addressing Systemic Issues of Compliance and Implementation Under Article 15 of the Paris Agreement: Models from MEAs. Legal Response Int’l 2 (Aug. 11, 2017), https://legalresponse.org/legaladvice/addressing-systemic-issues-of-compliance-and-implementation-under-article-15-of-the-paris-agreement-models-from-meas/.

     [99].   Oberthür & Northrop, supra note 77, at 10–11.

   [100].   Id.

   [101].   Id. at 11.

   [102].   Id.

   [103].   Report of the Conference Held in Katowice from 2 to 15 December 2018, supra note 38, at 63.

   [104].   Id.

   [105].   Legal and Procedural Remedies in Cases of Non-Compliance with Paris Agreement, Legal Response Int’l (Aug. 1, 2017), https://legalresponse.org/legaladvice/legal-and-procedural-remedies-in-cases-of-non-compliance-with-paris-agreement/.

   [106].   See Robert Falkner, The Paris Agreement and the New Logic of International Climate Politics, 92 Int’l Affairs 1107, 1119 (2016).

   [107].   Huang, supra note 73, at 2.

   [108].   Id. at 3.

   [109].   K. Madhava Sarma, Compliance with the Multilateral Environmental Agreements to Protect the Ozone Layer, in Ensuring Compliance with Multilateral Environmental Agreements: A Dialogue Between Practitioners and Academia 25, 36–37 (Ulrich Beyerlin et al. eds., 2006).

   [110].   Falkner, supra note 106, at 1119.

   [111].   Id. at 1120.

   [112].   See S.I. Karlsson-Vinkhuyzen et al., Entry into Force and Then? The Paris Agreement and State Accountability, 18 Climate Pol’y 593, 597–98 (2018); Alexander Zahar, A Bottom-Up Compliance Mechanism for the Paris Agreement, 1 Chinese J. Env’t L. 69, 98 (2017).

By Sarah E. Page

Pop culture is filled with references to hidden Nazi treasure. Monuments Men tells the story of the real hunt for stolen Nazi art[1] Television channels are rife with shows focusing on the search for hidden Nazi gold around the world.[2] However, one hoard is hidden in plain sight, and is now the subject of a dispute that made it all the way to the Supreme Court of the United States, which, in a decision released Feb. 3, sided with the treasure’s current owners regarding whether the dispute should be decided by U.S. courts.[3]

The collection, currently housed in Berlin’s Kunstgewerbemuseum,[4] is filled with artifacts of immense cultural and monetary value, and includes beautiful, gilded ecclesiastical artifacts such as the Cupola Reliquary, the Guelph Cross, and the Portable Altar of Eilbertus.[5] The beauty of the artifacts hides a long and rich history. Although that history originates in the beginnings of the German church, the conflict that brought the treasure before the Supreme Court is rooted in the beginnings of the Nazi Party’s control over Europe. In 1929, a consortium of Jewish art dealers based in Germany purchased the Guelph Treasure and displayed it around the world.[6] After their rise to power in 1933, the Nazi government began pressuring the group to sell their collection to Prussia, which promptly gifted the treasure to Hitler.[7] However, this transaction was for only a third of the collection’s appraised market value.[8]

The unjustly low price paid over 80 years ago is the cause of the current legal battle. A group of the original Jewish art dealers’ descendants composed of Alan Philipp, a resident of the United Kingdom, and United States residents Gerald Stiebel and Jed Leiber, [9] seek legal recourse for what they allege was an unjust transaction. Before availing themselves of the United States court system, the group first tried to use the Limbach Commission in Germany, which was established in 2003 to consider the fate of Nazi-acquired artifacts with questionable provenance that are currently in government possession.[10]

In that commission hearing, the museum foundation currently holding the collection argued that because the collection was in Amsterdam, and not under German control at the time of the sale, it cannot automatically be presumed that the Jewish art dealers faced pressure and threats from the Nazi Party to sell.[11] Arguably, this assertion failed to consider that one member of the group lived in Germany at the time of the deal, and while the treasure might not have been subject to Nazi control, the man may have felt that his life was in danger.[12] Furthermore, the museum claimed that because the market declined due to the Great Depression, the collection was worth much less at the time it was sold, and therefore the sale price was fair,[13] despite evidence of a letter from a Nazi official to Hitler outlining his intent to purchase the collection for a mere third of its value.[14]

The commission agreed with the museum, and determined that the Guelph Treasure was sold for a reasonable price that was not a result of duress.[15] Thus, the museum, whose deputy director has described the Guelph Treasure as “the highlight, the center, the heart of [their] medieval collection,” was not required to return the artifacts to the descendants of the original dealers.[16]

Understandably displeased, the heirs decided to bring their fight to the United States.[17] Most of their causes of action are straightforward, like replevin, conversion, and unjust enrichment;[18] but the question of whether an American court could actually decide these issues is a jurisdictional quagmire that halted the case’s progress in the U.S.

Both the district court[19] and the D.C. Circuit Court of Appeals[20] determined that the claims surrounding the sale of the Guelph Treasure were connected to the genocide of German Jews during the Holocaust, and therefore the Foreign Sovereign Immunities Act (“FSIA”) would not prevent the United States courts from gaining jurisdiction. But the museum appealed this decision to the Supreme Court, arguing that the FSIA’s expropriation exception should not apply, both because the claims are of a domestic taking, from a German citizen to the German government, and because the principle of international comity would require that American courts refrain from making a decision on a matter with only a tenuous connection to the United States.

Normally, foreign governments are granted sovereign immunity from suits in the United States under the FSIA, but there are a few exceptions.[21] Under the FSIA’s expropriation exception, when a foreign state takes property “in violation of international law,” and “that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States,” then the foreign government is susceptible to suits in the United States regarding the taken property.[22] The museum, of course, does not believe this exception applies.

The museum’s first contention seems to rest on the fact that the actual transaction only involved German parties, that the sale itself did not violate international law, and that the transaction’s connection with the horrors of the Holocaust cannot bring claims surrounding the transaction under the purview of the expropriation exception.[23] The taking itself must violate international law, and historically, that can only happen when the government takes from a foreign national.[24] The heirs of the art dealers argue that the court should consider only the plain text of the law, and as “taken in violation of international law” is not defined within the FSIA statute and not an obvious term of art, it should be interpreted according to its plain meaning.[25] Because genocide is an obvious violation of international law, and the potentially unjust sale of the Guelph Treasure was directly related to the Holocaust genocide, then the sale should render the treasure “taken in violation of international law.”[26]

Although the museum is correct and the sale of the Guelph collection was not genocide, Justice Thomas suggested in oral argument that it is impossible to separate actions taken by the Nazi party against the German Jewish population from the Holocaust.[27] However, despite this incisive comment during argument, Justice Thomas joined in a unanimous decision to vacate the lower courts’ interpretation of the expropriation exception.[28] Writing for the court, Chief Justice Roberts adopted the German museum’s perspective on the FSIA.[29]

Because the rest of the FSIA mentions only property related offenses, the Supreme Court stated that the expropriation exception should not be extrapolated to apply to events surrounding human rights violations.[30] This is because international law governing property tends to abide by the “domestic takings rule,” which holds that a government’s seizure of the property of its own citizen is not a matter governed by international law.[31] The Court articulated that Congress’s intention to allow American courts to intervene only when there is state action against property held by a citizen of another state is obvious because the verbiage used in the FSIA expropriation exception is identical to that of the Second Hickenlooper Amendment to the Foreign Assistance Act of 1964.[32] This amendment dictated that federal courts could intervene in situations in which foreign nations had taken adverse action against the property of a non-citizen, and was passed as a reaction to the former Supreme Court’s reluctance to exercise jurisdiction over the actions of a foreign nation on foreign soil involving an American company’s property.[33] However, Congress did not alter the traditional “domestic takings rule” when it passed the Second Hickenlooper Amendment, and instead left state actions against the property of their own citizens out of the purview of international law.[34] Because the sale of the Guelph Treasure was a transaction between German citizens, there is no invocation of international law, and therefore, there is no possibility that the transactions could have violated international law for the purposes of jurisdiction under the FSIA exception.[35]

However, the Supreme Court did leave one small door open to allow the dealers’ descendants another chance at U.S. jurisdiction. If the dealers were no longer considered German citizens at the time of the transaction due to Germany stripping Jewish Germans of citizenship status, the “domestic takings rule” may not apply.[36] However, the Court declined to address this important factor and sent the issue back to the district court to ascertain whether that issue was properly preserved for appeal.[37]

The museum’s next argument is that the principle of comity should prevent American courts from presiding over these claims because Germany has a system that would adjudicate the claims and because the claims hold significant historical and political implications for Germany.[38] At a basic level, comity is the principle that governments should respect the governmental decisions of foreign states.[39] After asserting comity, the nation of Germany was dismissed as a party to the case, but the museum foundation asserts that this principle should cover them as well.[40] The descendants contend that not only is the museum’s comity argument just a restatement of the forum non conveniens argument that was dismissed earlier and not appealed,[41] but also that discretionary comity would be inappropriate here because the descendants would not be able to recover for their claims in Germany.[42] The Supreme Court artfully avoided stepping on international toes by declining to address this issue and basing the outcome of the case solely on the dispute under the FSIA.[43] Therefore, the issue of comity in similar cases is left for another day.

On one hand, the Supreme Court had a sympathetic set of plaintiffs and extreme, visceral disgust for the atrocities committed by the Nazis during the Holocaust. On the other hand, the Court faced the possibility of overly encroaching on international affairs.[44] Although faced with two very compelling arguments and the competing goals of both preserving international relations and recognizing the injustices inflicted on the German Jews by the Nazis, the Court effectively struck a balance between preserving traditional tenants of international law and recognizing the injustices that faced the art dealers at the time of the sale.[45]


[1] See Monuments Men Found., https://www.monumentsmenfoundation.org (last visited Feb. 4, 2021).

[2] See Hunting Nazi Treasure, Nat’l Geographic Channel, https://www.natgeotv.com/ca/hunting-nazi-treasure/about (last visited Feb. 4, 2021); Lost Gold of World War II, History, https://www.history.com/shows/lost-gold-of-world-war-ii (last visited Feb. 4, 2021); Nazi Gold Train, Travel Channel, https://www.travelchannel.com/shows/expedition-unknown/episodes/nazi-gold-part-1 (last visited Feb. 4, 2021).

[3] Federal Republic of Germany v. Philipp, No. 19-351, slip op. at 1, 16 (U.S. Feb. 3, 2021), https://www.supremecourt.gov/opinions/20pdf/19-351_o7jp.pdf.

[4] Hilary McDonnell, An Uncertain Fate for the Guelph Treasure, Hughes Hubbard & Reed (Nov. 11, 2020), https://www.hhrartlaw.com/2020/11/an-uncertain-fate-for-the-guelph-treasure/.

[5] What is the Guelph Treasure?, Stiftung Preußischer Kulturbesitz,

http://www.preussischer-kulturbesitz.de/newsroom/dossiers-and-news/all-dossiers/dossier-the-guelph-treasure/what-is-the-guelph-treasure.html?no_cache=1&L=1 (last visited Feb. 4, 2021).

[6] McDonnell, supra note 4.

[7] Id.

[8] Brief for Respondents at 5, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Oct. 22, 2020), https://www.supremecourt.gov/DocketPDF/19/19-351/158522/20201022151404770_Respondents%20Brief.pdf.

[9] Brief for Petitioners at ii, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Sept. 4, 2020), https://www.supremecourt.gov/DocketPDF/19/19-351/153210/20200904172357322_2020-09-04%20Brief%20of%20Petitioners.pdf.

[10] Nicholas O’Donnell, Limbach Advisory Commission Recommends Against German Restitution of “Guelph Treasure,” Focuses on Terms of 1929 Agreement for Intended Sale, Sullivan &Worcester: Art L. Rep. (Mar. 26, 2014, 11:54 AM), https://blog.sullivanlaw.com/artlawreport/2014/03/26/limbach-advisory-commission-recommends-against-german-restitution-of-guelph-treasure-focuses-on-terms-of-1929-agreement-for-intended-sale/.

[11] Christopher F. Schuetze, U.S. Supreme Court to Rule on Medieval Treasure Bought by Nazis, N.Y. Times (July 10, 2020), https://www.nytimes.com/2020/07/10/world/europe/guelph-treasure-germany-us.html.

[12] Schuetze, supra note 11.

[13] O’Donnell, supra note 10.

[14] Brief for Respondents, supra note 8, at 4.

[15] Brief for Petitioners, supra note 9, at 6.

[16] Schuetze, supra note 11 (quoting Lothar Lambacher).

[17] Nicholas O’Donnell, Civil Action Filed Against Germany for Restitution of Guelph Treasure, Sullivan &Worcester: Art L. Rep. (Feb. 24, 2015, 12:27 AM), https://blog.sullivanlaw.com/artlawreport/topic/philipp-v-federal-republic-of-germany-et-al-15-cv-.

[18] Joint Appendix at 125–26, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Sept. 4, 2020), https://www.supremecourt.gov/DocketPDF/19/19-351/153235/20200904173042682_2020-09-04%20Joint%20Appendix.pdf.

[19] Philipp v. Federal Republic of Germany, 248 F. Supp. 3d 59, 70–72 (D.D.C. 2017), aff’d, 894 F.3d 406 (D.C. Cir. 2018), vacated, No. 19-35,1 slip op. (U.S. Feb. 3, 2021), https://casetext.com/case/philipp-v-fed-republic-of-ger.

[20] Philipp v. Federal Republic of Germany, 894 F.3d 406, 410–413 (D.C. Cir. 2018), vacated, No. 19-35,1 slip op. (U.S. Feb. 3, 2021), https://casetext.com/case/philipp-v-fed-republic-of-germany-2.  

[21] Amy Howe, Argument Preview: Pleading Standards and the “Expropriation” Exception to the FSIA, SCOTUSblog (Oct. 27, 2016, 2:10 PM), https://www.scotusblog.com/2016/10/argument-preview-pleading-standards-and-the-expropriation-exception-to-the-fsia/.

[22] 28 U.S.C. §1605(a)(3), https://www.govinfo.gov/content/pkg/USCODE-2011-title28/html/USCODE-2011-title28-partIV-chap97.htm.

[23] Brief for Petitioners, supra note 9, at 16–18.

[24] Id. at 22–26.

[25] Brief for Respondents, supra note 8, at 11–12.

[26] Id. at 12–13.

[27] Coleman Sanders, Summary: Supreme Court Oral Argument in Federal Republic of Germany v. Philipp, Lawfare (Jan. 12, 2021, 1:19 PM), https://www.lawfareblog.com/summary-supreme-court-oral-argument-federal-republic-germany-v-philipp.

[28] Philipp, slip op. at 15–16.

[29] Id. at 1, 7.

[30] Id. at 4–5.

[31] Id. at 4–6.

[32] Id. at 7–8; see also 22 U.S.C. § 2370(e)(2).

[33] Philipp, slip op. at 7–8; § 2370(e)(2).

[34] Philipp, slip op. at 7.

[35] Id. at 8.

[36] Brief for Respondents, supra note 8, at 27.

[37] Philipp, slip op. at 16.

[38] McDonnell, supra note 4.

[39] Brief for Respondents, supra note 8, at 9–10.

[40] Id. at 10.

[41] Id. at 43.

[42] Id. at 54–55.

[43] Philipp, slip op. at 15–16.

[44] Brief for Petitioners, supra note 9, at 49–50.

[45] Philipp, slip op. at 13 (hinting at potential retaliation if an American court claimed jurisdiction over these claims).

Post image of the Cupola Reliquary, courtesy Kunstgewerbemuseum. Photo by Fabian Frohlich.

By Adrian E. Simioni

The continued closure of international borders in response to the COVID-19 pandemic has had devasting economic effects on trade, tourism, and service industries across the globe.[1] However, one overlooked, entirely human effect has been the profound impact of border closures on unmarried couples and families residing in different countries. Their designation as “non-essential” tourists, blanket entry bans, and inconsistent and rapidly changing travel restrictions have left numerous couples and families separated from the very beginning of the COVID-19 outbreak, and current infection trends do not bode well for timely reunions.[2]

This is an issue near and dear to me.  I have been in a long-distance relationship with a French national and permanent resident of the Czech Republic since the beginning of 2019. We met when I was teaching English in Prague, while she worked at a hotel in the city.  She has been seeking a visa to live in the United States (“U.S.”) since I left the Czech Republic to attend the Wake Forest University School of Law. Long-distance relationships are difficult to manage and maintain at the best of times, but the pandemic has shattered any certainty we had. We were on a trip to Canada in March when the European Union (“E.U.”)-U.S. border abruptly shut due to the onset of the COVID-19 pandemic; she was forced to return to the E.U. while I had to fly back to the U.S.  We were suddenly confronted with the prospect of being unable to reunite for an indeterminate amount of time. As the months rolled by, our hope waned. A reunion in May was cancelled, ideas for August were scrapped, and the U.S.’s announcement that it was suspending the consideration of routine visas for most applicants destroyed our plans for a permanent reunion.[3] We were left clinging onto any hope we could find.  Similar problems persist for other couples and families around the world.[4]

In response to these grim circumstances, an internet movement has been gathering steam. Love is Not Tourism is an organization formed for the express purpose of reuniting these separated couples and families while still acknowledging that general restrictions on tourism are necessary.[5] Love is Not Tourism’s argument is simple. “The closure of international borders in the wake of the COVID-19 pandemic was – and still is – sensible and even necessary. . . . [b]ut love is not tourism. This is not just about a summer holiday, it is about mental health and the future of people all around the world.”[6] Through their work, and the efforts of thousands of supporters filing petitions and contacting government officials around the world, as of October 27, 2020, twelve European countries and Canada have relaxed their entry restrictions on unmarried people and family members traveling to reunite with their loved ones,[7] with intergovernmental bodies like the European Commission explicitly encouraging other states to follow suit.[8]

My partner and I caught a very lucky break at the end of September when, through petitions supported by Love is not Tourism, the Czech Republic became one of the few countries that permit entry for unmarried partners of E.U. citizens residing in-country.[9] My application was approved within a week, and on October4, I arrived in Prague, where I am blogging from now. While we have been fortunate, when I am inevitably forced to return to the U.S., my French companion will be barred from visiting me.  The U.S. maintains strict travel restrictions and entry bans,[10] and the government has shown little interest in reunions.[11]

But how can countries facilitate the reunion of couples and families without jeopardizing the health of their citizens? The vast majority of countries continue to deal with the COVID-19 outbreak with total or partial border closures, though the trend has been shifting as countries slowly ease travel restrictions.[12] As case totals rise rapidly across the globe, however, governments have indicated that harsh travel restrictions can be reintroduced at any time, making reunions subject to both rapidly changing circumstances and differing immigration procedures.[13] Beyond measures imposed on foreign nationals, couples and families are becoming increasingly affected by measures imposed by their own country, such as two-week mandatory quarantines upon return, which makes travel to countries that also have mandatory quarantines unfeasible except for those in exceptional circumstances, like myself.[14] Some countries have even imposed strict exit bans, effectively stranding their own citizens within their country and preventing eligible couples and families from taking advantage of travel to countries which have allowed reunion.[15]

To facilitate the reunion of couples and families, Love is Not Tourism advocates for countries to implement a “self-paid test upon arrival and quarantine until a negative result is received or a 14 day strict quarantine” instead of arbitrary entry bans, and the inclusion of unmarried couples and family members as a part of countries’ “essential travelers” lists.[16] Studies indicate that total and partial travel bans are most effective at the very start of an outbreak, but are unsustainable in the long term as the outbreak spreads globally, making travel bans a delay strategy and not preventative.[17] On the other hand, testing travelers upon arrival and isolating for fourteen days reduces case importation numbers by an average of 91.7 percent, relative to allowing all travelers in unchecked, which would reduce infection risks from imported cases to a level that would permit necessary business and leisure travel.[18] This is similar to the procedure adopted by the Czech Republic prior to my arrival.[19] Even if countries refuse to remove hard entry barriers, the tiny number of people affected by unmarried couple and family travel ban exemptions would pose negligible risks, especially when compared to the risks ignored by entry policies that arbitrarily discriminate between places of origin.[20] Finally, the risk of abuse by those masquerading as a couple or family member is also low; countries which have implemented Love is not Tourism exemptions require strictly vetted applications with clear document requirements.[21] The risks of implementing these policies are low, while the benefits for families and couples are quite high.

Europe is in the grip of a second wave of outbreaks, and the U.S. has recently broken case count records last set in July.[22] The hope that countries will relax their hard entry bans is fading. The mental health and well-being of couples and families around the world is at risk. As put by one affected person, “I wish authorities understood that these travel bans are having immense mental health consequences for those of us who can’t be with our loved ones during these troubling times. I want them to know that we exist.”[23] Petitions targeting governments around the world and situation updates can be found on Love is Not Tourism’s website.[24] Every signature helps, and brings families and couples one step closer to a temporary reunion and an end to the months of isolation from their loved ones.


[1] See Nicolas Guzman et al., Coronavirus’ Impact on Service Organizations: Weathering the Storm, McKinsey & Co. (Apr. 29, 2020), https://www.mckinsey.com/business-functions/operations/our-insights/coronavirus-impact-on-service-organizations-weathering-the-storm#; U.N. World Tourism Org., International Tourism and COVID-19 (Sept. 15, 2020), https://www.unwto.org/international-tourism-and-covid-19; Press Release, World Trade Org., Trade Shows Signs of Rebound from COVID-19, Recovery Still Uncertain, Press/862 Press Release (Oct. 6, 2020), https://www.wto.org/english/news_e/pres20_e/pr862_e.htm.

[2] See Natalie B. Compton, Coronavirus Cases Set Records in Europe This Week.  What Does That Mean for the Return of U.S. Travelers?, Wash. Post (Oct. 15, 2020), https://www.washingtonpost.com/travel/2020/10/15/american-travel-europe-border/; see also ‘It is terrifying’: Europe Braces for Lengthy Battle with COVID, Reuters (Oct 26, 2020), https://www.eureporter.co/frontpage/2020/10/26/it-is-terrifying-europe-braces-for-lengthy-battle-with-covid/ (“Europe’s daily infections have more than doubled in the past 10 days, reaching a total of 7.8 million cases and about 247,000 deaths, as a second wave right before winter has crushed economic revival hopes.”); Holly Yan & Madeline Holcombe, The US had More Daily Covid-19 Cases in the Past Week than Ever Before. And No, it’s Not Just Due to More Testing, CNN (Oct. 26, 2020), https://edition.cnn.com/2020/10/26/health/us-coronavirus-monday/index.html (reporting that the seven-day average of daily new cases reached an all-time high of 68,767 on Sunday, October 25, with the previous record of 67,293 being set on July 22).

[3] See Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak, U.S. Dep’t of State (June 17, 2020), https://travel.state.gov/content/travel/en/News/visas-news/Proclamation-Suspending-Entry-of-Immigrants-Who-Present-Risk-to-the-US-labor-market.html.

[4] See Natacha Larnaud, “A Part of Me Is Missing”: COVID-19 Travel Bans Continue to Separate Families and Couples, CBS News (Oct. 8, 2020, 6:42 PM), https://www.cbsnews.com/news/covid-19-travel-bans-families-couples/.

[5] See Love is Not Tourism, https://www.loveisnottourism.org/ (last visited Oct. 27, 2020); see also Love is Essential, https://loveisessential.info/ (last visited Oct. 27, 2020) (advocating for the reunion of non-E.U.-citizens in an “international” partnership).

[6] Love is Not Tourism, supra note 5.

[7] Id.

[8] See Alice Tidey, ‘Love Is Not Tourism’: EU Bids to Reunite Couples Split by Coronavirus Restrictions, Euronews (Aug. 7, 2020), https://www.euronews.com/2020/08/07/love-is-not-tourism-eu-bids-to-reunite-couples-split-by-coronavirus-restrictions.

[9] Czech Republic Rearranges Entry Procedures for Unmarried Partners of Czech & EU Citizens, SchengenVisaInfo (Sept. 21, 2020), https://www.schengenvisainfo.com/news/czech-republic-rearranges-entry-procedures-for-unmarried-partners-of-czech-eu-citizens/.

[10] Travelers Prohibited from Entry to the United States, CDC (Sept. 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/travelers/from-other-countries.html.

[11] See Larnaud, supra note 4.

[12] U.N. World Tourism Org., COVID-19 Related Travel Restrictions: A Global Review for Tourism 12 (2020), https://webunwto.s3.eu-west-1.amazonaws.com/s3fs-public/2020-09/200909-travel-restrictions.pdf.

[13] Id. at 24; see also Sophia Harris, Canada-U.S. Border Closure Extended but Trump, Trudeau Far Apart on Next Steps, CBC (Oct. 18, 2020, 4:00 AM), https://www.cbc.ca/news/business/trudeau-trump-canada-u-s-border-closure-1.5765323 (due to persistently high infection rates, the border between Canada and the U.S. will remain closed for an indeterminate amount of time); Hungary Amends Travel Restrictions for V4 Countries, SchengenVisaInfo (Oct. 7, 2020), https://www.schengenvisainfo.com/news/hungary-amends-travel-restrictions-for-v4-countries/ (“On September 1, authorities in Hungary decided to reclose their borders for all international arrivals, becoming the first Schengen country to take such a decision, as part of efforts to stop the further spread of the deadly virus.”); Kat Lonsdorf, Europe Imposes New Restrictions as COVID-19 Cases Soar, NPR (Oct. 25, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/10/25/927637746/europe-imposes-new-restrictions-as-covid-19-cases-soar (surging COVID-19 cases across the E.U. has led to the reintroduction of significant domestic restrictions).

[14] See U.N. World Tourism Org., supra note 12, at 12.

[15] See Josh Dye, Is Australia’s Ban on International Travel Legal? Experts Weigh In, Traveler (Oct. 17, 2020), https://www.traveller.com.au/is-australias-ban-on-international-travel-legal-experts-weigh-in-h1rgqu.

[16] Love is Not Tourism, supra note 5.

[17] Borame L. Dickens et al., Strategies at Points of Entry to Reduce Importation Risk of COVID-19 Cases and Reopen Travel, J. Travel Med., Aug. 25, 2020, at 1–2, https://academic.oup.com/jtm/advance-article/doi/10.1093/jtm/taaa141/5897021; see also Matteo Chinazzi et al., The Effect of Travel Restrictions on the Spread of the 2019 Novel Coronavirus (COVID-19) Outbreak, 368 Sci. Mag. 395, 400 (2020), https://science.sciencemag.org/content/sci/368/6489/395.full.pdf (“. . . although the Wuhan travel ban was initially effective at reducing international case importations, the number of imported cases outside mainland China will continue to grow after 2 to 3 weeks. . . . additional travel limitations (up to 90% of traffic) have only a modest effect unless paired with public health interventions and behavioral changes.”); Ana L.P. Mateus et al., Effectiveness of Travel Restrictions in the Rapid Containment of Human Influenza: A Systematic Review, 92 Bulletin World Health Org. 868, 873 (2014), https://www.who.int/bulletin/volumes/92/12/14-135590.pdf (“Only extensive travel restrictions – i.e. over 90% – had any meaningful effect on reducing the magnitude of epidemics.  In isolation, travel restrictions might delay the spread and peak of pandemics by a few weeks or months but we found no evidence that they would contain influenza within a defined geographical area.”).

[18] Dickens et al., supra note 17, at 5.

[19] See Coronavirus – Information of MoI, Ministry of the Interior of the Czech Republic, https://www.mvcr.cz/mvcren/article/coronavirus-information-of-moi.aspx (last visited Oct. 27, 2020).

[20] See Tidey, supra note 8 (as of July 2020, there was an estimated 398,286 European flights for tourism with no quarantine or negative test requirement, compared to 9,000 E.U. citizens waiting to be reunited with partners, family, and children that are not exempt from E.U. travel ban).  See generally COVID-19 Impact on the European Air Traffic Network, EUROCONTROL (2020), https://www.eurocontrol.int/covid19#assessment (publishing regular air traffic scenarios and comprehensive assessments of latest air traffic situations in Europe).

[21] See, e.g., Sebastian Powell, Immigration Canada has Updated their Entry Requirements, Allowing More Foreigners to Enter and Reunite with Family Members, LoyaltyLobby (Oct. 9, 2020), https://loyaltylobby.com/2020/10/09/canada-has-updated-their-entry-requirements-allowing-more-foreigners-to-enter-and-reconcile-with-family-members/ (requirements for entry involve a notarized affidavit describing at least a one year relationship with a Canadian permanent resident or citizen with whom you have spent physical time together, a declaration signed by said citizen or permanent resident, a demonstration of an intent to enter for a period of at least fifteen days, and an assessment of the relationship by Canada’s immigration service); About the Corona Situation: Citizens of Countries Outside the EU/EEA: Residing in Countries Outside the EU/EEA, The Norwegian Directorate of Immigr., https://www.udi.no/en/about-the-corona-situation/currently-not-in-norway-questions-and-answers-for-nationals-outside-eueea/#link-18798 (last visited Oct. 27, 2020) (restricting entry to a girlfriend or boyfriend that you have been with at least nine months and whom you have met physically at least once with a relationship you can document and a place to live to carry out the quarantine).

[22] See Lonsdorf, supra note 13;Yan & Holcombe, supra note 2.  See generally Covid in the U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?name=styln-coronavirus&region=TOP_BANNER&label=undefined&module=undefined&block=storyline_menu_recirc&action=click&pgtype=LegacyCollection&impression_id=a73db151-137d-11eb-a050-490062a63512&variant=1_Show (last visited Oct. 27, 2020) (tracking COVID-19 cases in the U.S.); COVID-19 Situation Update for the EU/EEA and the UK, Eur. Ctr. for Disease Prevention & Control, https://www.ecdc.europa.eu/en/cases-2019-ncov-eueea (last visited Oct. 27, 2020) (tracking COVID-19 cases in the E.U., European Economic Area, and the United Kingdom).

[23] Larnaud, supra note 4 (internal quotation marks omitted). In response to suspended routine visa service in the U.S.: “I look at my engagement ring every day and I don’t know when I’ll hold my fiancé again. . . . [n]ot being able to see the finish line is the hardest, most painful part.  We’re feeling hopeless.  Our whole lives have been put on hold.”  Id.  In response to Peru’s border closure: “It’s been seven months since I’ve been able to hug my daughter.  I never dreamed of one day having to be without her for so long.”  Id.  In response to U.S. restrictions targeting non-Green Card visa holders: “Foreign nationals work, pay taxes, contribute to the economy.  We’re not citizens, but we’re not tourists either, and yet, we suffer the same restrictions as tourists.  Our whole life is here, so we should have a right to come back home.  It’s like we’re being taken hostage.”  Id.

[24] Love is Not Tourism, supra note 5; see also Love is Essential, supra note 5.

Caster Semenya celebrates her silver medal at the London 2012 Olympic games. Original photo by Jon Connell, via flickr.

By Kelsey E. Rector

South African runner Caster Semenya is a two-time Olympic gold medalist and has dominated track events like the 800 meter and other mid-distance races over the last decade.[1] All her life, Semenya has been questioned about her sex, especially with respect to competing as an elite female track athlete.[2] Her performance came under fire because Semenya, who was raised as a woman, presents as a woman, and identifies as a woman, has differences in sex development (“DSD”) which cause her body to naturally produce more testosterone than the average female.[3] DSD has many potential causes,[4] but in the most general terms, means that a person has an “atypical development of their chromosomal, gonadal, and/or anatomic sex.”[5]

In competitive sports which rely on gender binaries to group athletes for fair competition, one of the major issues has been to determine how to handle challenges that DSD women are not “female” for the sake of competition.[6] As a result, the recent solution by World Athletics (formerly the International Association of Athletics Federations, or “IAAF”) has been to adopt new rules to protect fair competition which would require DSD women, who are considered “relevant athletes,” to regulate their elevated testosterone levels or bar them from competing in certain women’s track events.[7]

Last month, Semenya lost her appeal challenging the World Athletics regulation which prohibits certain athletes with elevated testosterone levels from competing as females in specified track events.[8]

The regulations set forth by World Athletics state that “relevant athletes,” like Semenya, are barred from competing in restricted events, such as the women’s 800 meter, unless they reduce their blood testosterone to a level of less than five nmol/L for at least six months and sustain it thereafter to maintain eligibility.[9] Similar regulations were proposed by the IAAF in 2014, but when challenged the IAAF failed to produce enough scientific evidence to justify the necessity of the regulation.[10] Despite conflicting studies regarding whether increased testosterone even provides a significant competitive advantage for DSD athletes, the IAAF proposed the current regulations and claimed that they were essential to preserving fair competition for women.[11]

Semenya filed a claim against IAAF in the Court of Arbitration for Sports (“CAS”), claiming that the DSD regulations were “unfairly discriminatory, arbitrary and disproportionate and therefore violate the IAAF Constitution . . . .”[12]

There are several issues with regulations such as these. First, the regulation explicitly targets those individuals who do not fit within a convenient, traditionally defined, binary division of sex. The regulation applies to DSD individuals, but not non-DSD women who may also naturally produce testosterone at high levels.[13] Second, the regulation only applies to certain track events and not to other sports or events.[14] It is interesting to note that the events in the restricted category are restricted to those events in which identified DSD athletes compete in the most significant numbers, but not to those where the performance gap between DSD women and non-DSD women was the widest.[15] Third, and perhaps most troubling, the regulation requires artificial lowering of natural testosterone levels—which can have side effects—in order for an athlete to compete as a woman.[16] We do not ask Michael Phelps to shorten his ridiculously long arms for fair competition, nor do we question Usain Bolt’s long legs in men’s racing—so is it even appropriate to regulate naturally produced hormones which may only give athletes a slight advantage?[17]

Following arbitration, CAS found that the DSD regulations were discriminatory, but upheld them because the regulations were “a necessary, reasonable and proportionate means of achieving the aim of what is described as the integrity of female athletics and upholding of the ‘protected class’ of female athletes in certain events.”[18] The court noted several concerns with the regulations, such the potential for compromising athletes’ confidentiality, the ability of the IAAF to practically apply the regulations, risks to athletes’ health from hormonal treatment, and the inclusion of certain events (the 1,500 meter and 1 mile) as restricted events.[19] The court implied that it was not its place to determine whether a different regulation could be implemented that was more fair and less discriminatory.[20] Instead the court stated that its role was limited to evaluating the regulation as presented in order to determine if it was necessary, reasonable, and proportionate.[21]

Following the CAS decision, the World Medical Association (“WMA”) released a statement encouraging doctors not to take part in implementing the regulations.[22] Specifically, the WMA president stated, “We have strong reservations about the ethical validity of these regulations. They are based on weak evidence from a single study, which is currently being widely debated by the scientific community.”[23] Nevertheless, the regulation was upheld on appeal by the Swiss Federal Supreme Court.[24]

The Swiss Court stated that it could only evaluate “whether the CAS decision violates fundamental and widely recognized principles of public order.”[25] The court determined that fairness in sport was a legitimate concern and that DSD athletes were not being forced to undergo examinations or treatment.[26] While technically the court is correct that athletes aren’t being forced into evaluation or treatment, if an athlete withholds her consent, she will be barred from competing.[27] That doesn’t exactly seem like a fair choice.[28]

So what comes next? First, given the concerns expressed in the CAS opinion, there may be challenges to the application of the DSD regulation once it starts to be enforced.[29] For example, an athlete who agrees to adjust her testosterone levels through hormone treatment may not be able to consistently keep them at the required level throughout her eligibility period.[30] If World Athletics chooses to enforce the policy anyway, that athlete would have a strong argument that she attempted to follow the regulation and that it would be unfair to bar her from competition for fluctuating testosterone levels.[31] In the meantime, Semenya will likely take her case to the European Court of Human Rights to determine “whether demanding women with intersex variations to change their natural bodies as eligibility condition for a certain sport events conforms to the European Convention on Human Rights.”[32]


[1] Athlete Profile: Caster Semenya, World Athletics, https://worldathletics.org/athletes/south-africa/caster-semenya-14330057 (last visited Oct. 20, 2020) (showing races won, current season times, world ranking, and other statistics).

[2] Robyn Dixon, Gender Issue Has Always Chased Her, L.A. Times (Aug. 21, 2009), https://www.latimes.com/archives/la-xpm-2009-aug-21-fg-south-africa-runner21-story.html. See also Erin Buzuvis, Caster Semenya and the Myth of a Level Playing Field, 6 Modern Am. 36 (2010) (discussing how Semenya’s voice, musculature, and speed provoked questions about her gender after she won the 800m at the World Championships in 2009).

[3] See Sofia Christensen, Semenya Lawyer Prepares Testosterone Rule Challenge in European Court, Yahoo News (October 1, 2020), https://sports.yahoo.com/semenya-lawyer-prepares-testosterone-rule-142841526.html.

[4] DSD is a term encompassing a variety of conditions including but not limited to: 46 XX congenital adrenal hyperplasia, 5-alpha reductase deficiency, Klinefelter syndrome (47 XXY), Swyer syndrome (46 XY gonadal dysgenesis), and Androgen insensitivity syndrome. Kyla Boyse, Disorders of Sex Development (DSD) Resources, Mich. Med. (updated Nov. 2012),  https://www.med.umich.edu/yourchild/topics/dsd.htm.

[5] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/O/5794, at 110–11 (Ct. Arb. Sport Apr. 30, 2019), https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.

[6] See generally Maayan Sudai, The Testosterone Rule—Constructing Fairness in Professional Sport, 4 J. L. & Biosciences 181, 182 (2017) (stating that the issue of sex classification has plagued professional sport authorities since at least 1968).

[7] See World Athletics, Eligibility Regulations for the Female Classification, 2 (effective Nov. 2019) https://www.worldathletics.org/download/download?filename=656101dc-7716-488a-ab96-59d37941e9ac.pdf&urlslug=C3.6%20-%20Eligibility%20Regulations%20for%20the%20Female%20Classification; Testosterone Rules for Female Athletes ‘Unscientific’, BBC (Mar. 21, 2019), https://www.bbc.com/news/health-47640359.

[8] George Ramsay & Jill Martin, Caster Semenya Loses Appeal in Swiss Court over Restriction of Testosterone Levels, CNN (Sept. 9, 2020), https://www.cnn.com/2020/09/09/sport/caster-semenya-ruling-athletics-spt-intl/index.html; Lena Holzer, The Decision of the Swiss Federal Supreme Court in the Caster Semenya Case: A Human Rights and Gender Analysis, Opinio Juris (Sept. 30, 2020), http://opiniojuris.org/2020/09/30/the-decision-of-the-swiss-federal-supreme-court-in-the-caster-semenya-case-a-human-rights-and-gender-analysis/; Sean Ingle, Caster Semenya’s Olympic Hopes Fade as Runner Loses Testosterone Rules Appeal, The Guardian (Sept. 8, 2020), https://www.theguardian.com/sport/2020/sep/08/caster-semenya-loses-appeal-against-world-athletics-testosterone-rules.  

[9] World Athletics, supra note 7, at 4–5. The regulations define relevant athletes as those with listed DSDs, testosterone levels higher than five nmol/L, and who have androgen sensitivity allowing the testosterone to have an androgenizing effect. Id. at 4. Restricted events currently include the women’s 400 m, 400 m hurdles, 800 m, 1,500 m, and 1 mile. Id.

[10] See Alexandria Adkins, Comment, Trapped in the Binary Divide: How Forced Contraceptives Violate the World Anti-Doping Code, 35 Am. U. Int’l L. Rev. 531, 542–43 (2020). These regulations required hyperandrogenic females to reduce natural testosterone levels through the use of oral contraceptives. Id. at 542.Dutee Chand, a hyperandrogenic sprinter from India successfully challenged the necessity, reasonableness, and proportionality of the regulations. Id. at 543.

[11] Sudai, supra note 6, at 186–89.

[12] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/O/5794, at 2 (Ct. Arb. Sport Apr. 30, 2019), https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.

[13] Adkins, supra note 10, at 561.

[14] Id. at 562.

[15] Semenya, CAS Case No. 2018/0/5794, at 156.

[16] Adkins, supra note 10, at 556.

[17] Matt Butler, Nobody Asked Bolt to Shorten His Legs or Phelps to Shrink His Feet, so Why is Caster Semenya Being Told to Reduce Her Testosterone?, i News (Sept. 16, 2020), https://inews.co.uk/sport/athletics/caster-semenya-iaaf-testosterone-cas-sebastian-coe-260629. But see Malcom Gladwell & Nicholas Thompson, Caster Semenya and the Logic of Olympic Competition, New Yorker (Aug. 12, 2016), https://www.newyorker.com/sports/sporting-scene/caster-semenya-and-the-logic-of-olympic-competition (rationalizing the regulations by stating that these are different types of advantages, and that testosterone places Semenya outside the protected class of women).

[18] Semenya, CAS Case No. 2018/0/5794, at 160.

[19] Id. at 152–160.

[20] Id. at 160.

[21] Id.

[22] WMA Reiterates Advice to Physicians not to Implement IAAF Rules on Classifying Women Athletes, World Med. Ass’n (May 2, 2019), https://www.wma.net/news-post/wma-urges-physicians-not-to-implement-iaaf-rules-on-classifying-women-athletes/.

[23] Id.

[24] Press Release, Swiss Fed. Sup. Ct., DSD Regul.: Caster Semenya’s Appeal against the Decision of the Ct. of Arb. for Sport Dismissed (Sept. 8, 2020). The court opinion is in French (which I do not speak), as such I cite to the Press Release which was released in English. The case citation is: Tribunal Fédéral [TF] [Federal Supreme Court] Aug. 25, 2020, 4A_248/2019 (Switz.).

[25] Press Release, Swiss Fed. Sup. Ct., supra note 24.

[26] Id.

[27] World Athletics, supra note 7, at 5.

[28] Holzer, supra note 8.

[29] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/0/5794, 158–59 (Ct. Arb. Sport 2019).

[30] Id.

[31] Id.

[32] Holzer, supra note 8.

By David Darr

Today, in the criminal case of United States v. Beyle, a published opinion, the Fourth Circuit affirmed the convictions of two Somali pirates for various charges relating to piracy, including the murder of four Americans off the coast of Somalia.

Defendants Contended the Court Lacked Jurisdiction and Violated Constitutional Rights

On appeal, Abukar Osman Beyle, defendant, contended that the court lacked jurisdiction over the charges related to murder and firearm use because the murder occurred in Somalia’s territorial waters, not on the high seas. Shani Nurani Shiekh Abrar, the other defendant, claimed that his Fifth Amendment right to due process and his Sixth Amendment right to present witnesses material to his defense were violated because he was unable to access certain witnesses important to his duress defense.

The Hostage Situation Resulting in the Deaths of Four Americans and Subsequent Proceedings

In February of 2011, a group of Somali pirates, which defendants were a part of, armed with automatic weapons and a rocket-propelled grenade launcher captured a Yemeni fishing boat. Both Beyle and Abrar were listed on the ledger for dividing the spoils among the pirates. The pirates attacked a ship with four Americans aboard that was part of an international yacht rally. Abrar was the first to board the American ship, and once on board he subdued the Americans and cut the communication lines. When the pirates gained control of the ship, it was approximately 950 miles off of the Somali coast. The pirates let four Yemeni fishermen they had captured with the Yemeni boat leave on the Yemeni boat, while the pirates stayed on the American boat. The pirates took the Americans hostage and tried to secure a ransom using their connections on land in Somalia. The U.S. Navy was alerted to this and moved to intercept the vessel before it could reach Somali waters. The Navy engaged with the pirates for several days in an attempt to get them to surrender, but the pirates refused, threatening to kill the hostages. The pirates started to fire guns and rockets at a Navy vessel that was attempting to block the boat from reaching Somali waters. The Navy did not return fire. A group of pirates, including Beyle and Abrar, opened fire on the four Americans, killing them all. At this time, the vessel was between thirty and forty nautical miles off the coast of Somalia. Navy SEALs then boarded the vessel, and the pirates surrendered after four pirates were killed. The FBI questioned the pirates and Abrar claimed that he was kidnapped and forced to be the pirates’ mechanic, with his role later changing to guard. Abrar claimed that the only reason he did not leave with the Yemeni fishermen was because he was afraid of being arrested in Yemen. Abrar admitted to pointing a gun at the hostages, but denied taking part in the shooting.

All of the pirates were taken to the United States and charged with a variety of crimes related to the piracy and hostage taking, including murder. All but three of the pirates, pled guilty and were sentenced to life in prison. Beyle, Abrar, and another pirate decided to take the case to trial. Beyle filed a motion to dismiss any counts relating to the murders because he claimed the murders took place in Somali territorial waters, outside of U.S. jurisdiction. Abrar filed a motion to dismiss the case against him because he could not reach witnesses, including the Yemeni fishermen, that would provide evidence that he acted under duress, which could act as a defense to all the charges except murder. The district court denied both motions. The U.S. sought the death penalty for all three defendants at trial. The trial lasted over a month, and ultimately the jury voted to convict all three defendants to life in prison. The jury heard instructions on Abrar’s duress defense, but decided that duress was not applicable. Beyle and Abrar appealed.

Definition of “High Seas”

The Constitution gives the federal government the power to punish piracy and felonies committed on the high seas. In statute, Congress had defined the high seas as including any waters outside the jurisdiction of any nation. The United Nations Convention on the Law of the Sea (UNCLOS), which the United States has recognized but not ratified and Somalia has ratified, recognizes that a nation’s sovereignty covers only territorial sea, which is twelve nautical miles off the coast. However, UNCLOS also recognizes exclusive economic zones (EEZ), which UNCLOS treats as quasi-territorial for economic rights. These EEZs extend to 200 miles off the coast of a nation. UNCLOS does not define waters as high seas until outside of these EEZs.

High Seas Include EEZs

Beyle argued that because UNCLOS does not consider the high seas to start until 200 miles of the coast of nation, the court below did not have jurisdiction because the murders occurred within forty miles of the Somali coast. The Fourth Circuit disagreed because EEZs allocated economic rights, not other rights. The actual authority to punish criminal violations only extended to twelve nautical miles off the coast of Somalia according to UNCLOS. Therefore, EEZs were outside of a nation’s sovereignty, making them “high seas” according to U.S. law, regardless of what UNCLOS defines as high seas. In the alternative, Beyle argued that Somalia had passed a resolution in 1972 extending its jurisdiction to 200 miles from the coast. The Fourth Circuit was unsure of the validity of this resolution, and found that Somalia’s subsequent adoption of UNCLOS superseded any such resolution. Because the murder occurred outside of twelve nautical miles off of the Somali coast, the Fourth Circuit found that the murders occurred on the high seas and were thus subject to U.S. jurisdiction.

Fifth and Sixth Amendment Protections

The Fifth Amendment provides due process protections when the government seeks to deprive someone of life, liberty, or property. The Sixth Amendment grants the right to a process to obtain witnesses for criminal defendants. The Sixth Amendment is violated if a defendant is arbitrarily deprived of relevant and material testimony that is vital to his defense. The Fifth and Sixth Amendments are closely related and the right to call witnesses to defend oneself is essential to due process.

The Fifth and Sixth Amendments Were Not Violated for Abrar

Abrar claimed that his Fifth and Sixth Amendment rights were violated because he did not have access to overseas witnesses that would have testified to his character and would have aided in his duress defense. The Fourth Circuit disagreed because the Sixth Amendment did not grant a defendant the right to any and all witnesses, only a compulsory process to obtain witnesses. This process was still limited by practicality, and the court did not have jurisdiction over the witnesses Abrar wanted to call. Additionally, outside concerns such as the security of Somalia made it very impracticable to locate and subpoena these witnesses. The Fourth Circuit also expressed concerns that some of Abrar’s witnesses might be fictional based on investigations into those witnesses that were made. The Fourth Circuit also did not think that the evidence that those witnesses would have put on would have been material because none of them actually witnessed Abrar’s abduction by pirates. Additionally, there were better witnesses such as the pirates Abrar claimed abducted him that the U.S. already had in custody that could testify to Abrar’s abduction. However, Abrar refused to call these witnesses because they would have contradicted his story. The district court even offered Abrar the opportunity to give testimony limited to his abduction but he refused. The Fourth Circuit also saw ample evidence on the record that Abrar was a willing participant. Therefore, the Fourth Circuit ruled that Abrar’s Fifth and Sixth Amendment rights were not violated.

Fourth Circuit Affirmed

The Fourth Circuit affirmed, holding that the court had jurisdiction over the actions of the defendants and that Abrar’s Fifth and Sixth Amendment rights were not violated.

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By Andrew Kilpinen

On February 24, 2015, the 4th Circuit affirmed the Western District of Virginia’s judgment denying Almaz Nezirovic’s (“Nezirovic”) petition for a writ of habeas corpus in the published opinion of Almaz Nezirovic v. Gerald Holt. The 4th Circuit held that Nezirovic’s extradition was neither time-barred nor precluded by the political offense exception under the Treaty Between the United States and Serbia for the Mutual Extradition of Fugitives from Justice (“Treaty”).

Nezirovic Tortured Civilians As Internment Camp Guard in Former Yugoslavia

Nezirovic served as a prison guard at the Rabic internment camp in Bosnia and Herzegovina in 1992 shortly after the former Socialist Federal Republic of Yugoslavia collapsed. In 1993, the Doboj Police Department of Bosnia issued a criminal report against Nezirovic alleging that as a prison guard he subjected civilians to torture and inhuman treatment. Nezirovic entered the United States in 1997 as a war refugee. Pursuant to a 2003 order filed by a judge in Bosnia and Herzegovina, Bosnian authorities requested in 2012 that Nezirovic be extradited pursuant to the Treaty.

Nezirovic Appealed District Court’s Writ of Habeas Corpus Denial

A magistrate judge conducted an extradition proceeding and found that there was sufficient evidence that a crime was committed in Bosnia, that if committed in the United States the actions would have been criminal, and Nezirovic is the fugitive sought. Nevirovic’s petition for a writ of habeas corpus with the Western District of Virginia was denied. This appeal followed.

Extradition Not Time-Barred Under Indefinite Limitations of Torture Act

Nezirovic argued that the Treaty prohibits extradition for offenses that would be time-barred in the United States. The Court found war crimes against civilians under the Torture Act, with indefinite limitation, to be the most analogous substantive offense under United States law as the charged offense in Bosnia. Nezirovic argued that the alleged crimes were committed two years before the Torture Act was enacted, and so the Court should apply the five-year statute of limitations related to assault. The Court rejected Nezirovic’s argument under the pretense that the law to be applied is that which is in place at the time the extradition request is made, not the law in effect when Nezirovic allegedly committed the acts. The Court dismissed any ex post facto concerns because the Supreme Court has made clear that U.S. Constitutional protections do not extend to foreign prosecutions.

Nezirovic’s Actions Were Not Political Offenses Exempt From Extradition

Next, Nezirovic argued that his acts were “political offenses” and, as such, exempt from extradition under the Treaty. The Court considered whether Nezirovic’s actions were objectively political in nature to determine if such actions were “relative” political offenses incidental to or in furtherance of a violent political uprising. The Court found, after considering the totality of the circumstances, that Nezirovic’s actions were not political because his victims were citizens.

The 4th Circuit affirmed the district court’s decision to deny Nezirovic’s extradition certification challenge.

By Joshua P. Bussen

Today, in Smedley v. Smedley, the Fourth Circuit affirmed a decision by the Eastern District of North Carolina to accord comity to a German appellate court decision. In doing so it allowed a mother to return back to Germany with her children.

 Defendant Claims German Court Was Incorrect

The defendant raised two issues on appeal. First, that the German court clearly misinterpreted the Hague Convention because it failed to make a habitual-residence determination before addressing the defense of consent. Second, that the German court’s decision did not meet a minimum standard of reasonableness because the court unreasonably relied on contradictory evidence in making its credibility determination.

To Germany and Back

In 2000, Mark and Daniela Smedley married in Germany. Mark was stationed there as a member of the United States Army. Over the next five years the Smedleys had two children—A.H.S. and G.A.S. The family continued to live primarily in Bamberg, Germany until August 2010 when Mark was transferred to North Carolina. The family relocated from Germany to Swansboro, North Carolina. Mark and Daniela’s relationship began to deteriorate over the months following the move and in May 2011 Daniela returned to Germany with the children—allegedly with the consent of Mark. Daniela and Mark’s story differ as to the details, but it was clear that in late July 2011 Daniela informed Mark that she would be remaining in Germany with the children.

On September 2, 2011, Mark obtained a temporary custody order from the District Court of Onslow County in Swansboro. He then filed a Hague petition in Germany seeking the children’s return. The German court denied his petition due to findings of that Mark had physically abused A.H.S. and that Mark had consented to Daniela and the children moving back to Germany.

In 2013, Daniela agreed to let the children visit Mark in America. Mark was under express orders from Daniela to return the children within roughly twenty days. On August 27, 2013, Mark informed Daniela that he would not be returning the children. Daniela filed a Hague petition in the E.D.N.C. and that court accorded comity to the German court’s decision; holding that the children should remain in Germany with their mother. This appeal followed.

 The Hague Convention & Comity

Hague Convention: Under the International Child Abduction Remedies Act, the goals of the Hague Convention are “to secure the prompt return of children wrongfully removed to or retained in any [State under the Convention]” and ensure rights of custody are respected by different States. Under Article 3 of the Hague Convention, the removal of a child is wrongful if it breaches a person’s rights of custody “under the law of the State in which the child was habitually resident.” However, if a child will be placed in danger, or if the party consented to the removal, the return of the child is not required. Courts in State’s that adhere to the Hague Convention should not overturn another foreign court’s decision unless the court: (1) clearly misinterprets the Hague Convention, (2) contravenes the Convention’s fundamental objectives, or (3) fails to meet a minimum standard of reasonableness.

Comity: The Fourth Circuit defined comity as: “A practice among political entities involving . . . mutual recognition of legislative, executive, and judicial acts.”

 The Fourth Circuit’s Rationale

On the defendant’s first issue, the Fourth Circuit held that the Hague Convention does not set out a roadmap, only principles. Therefore, “[e]ven if the German court had assumed that the children were habitual resident of North Carolina when Daniela took them to Germany, the finding that Mark consented to that move would have still provided her with an affirmative defense to wrongful removal.” The court cited the similarity between this situation and the common American process of granting summary judgment based on an affirmative defense after assuming that the plaintiff made out a prima facie case.

On the defendant’s second issue, the Fourth Circuit found that the German court’s decision was “at least minimally reasonable.” According to this court, the German court had sufficient facts that tended to show that Daniela’s story was more credible than Mark’s. Because a showing of “minimal reasonableness” is sufficient to accord comity to a foreign court, the Fourth Circuit refused to overturn the credibility determinations made by the German Court.

Outcome

The Fourth Circuit found that the German court had sufficient evidence to grant Daniela custody of the children. Therefore the “minimally reasonable” burden was satisfied and the grant of comity by the lower court was affirmed.

 

 

By Marcus Fields

          Last Wednesday in Chevron Corp. v. Page, the Fourth Circuit ruled, in a matter of first impression, that decisions on applications for discovery filed pursuant to 28 U.S.C. § 1782 were immediately appealable and affirmed the United States District Court for the District of Maryland’s ruling in favor of Chevron. The Fourth Circuit also determined that it could not hear an appeal from a discovery order on a subpoena filed under Federal Rule of Civil Procedure 45 because it lacked subject matter jurisdiction.

The two discovery decisions at issue on appeal were sought by Chevron as part of a complex history of litigation spanning three decades and taking place in three different countries. The Fourth Circuit notes, and provides an excellent summary of, the extensive history of the conflict between Chevron and certain citizens of Ecuador over alleged pollution by one of Chevron’s acquired subsidiaries.

This history culminated in 2011 when an Ecuadorian court awarded 47 plaintiffs an $18.2 billion judgment against Chevron. Steven Donziger was the lead attorney for the plaintiffs and was assisted by Aaron and Daria Page, the appellants in the present case along with two of the Ecuadorian plaintiffs. Chevron alleges that Donziger, with the help of the Pages, fraudulently obtained the judgment in Ecuador and has pursued efforts to prevent the execution of that judgment. These efforts include appellate proceedings in Ecuador, arbitration against Ecuador at The Hague, and an action against Donziger and others in the United States District Court for the Southern District of New York. In support of these efforts Chevron has filed multiple discovery requests in the United States, including the two at issue here.

In 2011, Chevron issued subpoenas in the District of Maryland to both of the Pages pursuant to Rule 45 requesting various documents for use in Chevron’s lawsuit in the Southern District of New York. After the Pages failed to adequately respond, the District Court of Maryland granted a motion to compel the Pages to turn over certain documents but stayed that motion while the proceedings in New York were stayed for unrelated reasons. In 2013, the district court re-ordered the Pages to produce these documents.

While discovery under Rule 45 was stayed in Maryland, Chevron filed an application in the District Court of Maryland pursuant to 28 U.S.C. 1782 (empowering district courts to order discovery “for use in a proceeding in a foreign or international tribunal.”) Chevron was seeking discovery of the exact same documents from the Pages for use in Chevron’s proceedings in Ecuador and at The Hague. The District Court again ordered the Pages to turn over the documents in question. The Pages timely appealed both decisions which were consolidated into the present case.

After an extensive explanation of background material, the Fourth Circuit conducted an analysis of whether jurisdiction was appropriate for each appeal. In analyzing the appeal of the discovery decision arising out of the Rule 45 subpoena, the court noted the general rule against hearing immediate appeals of discovery decisions. The court determined that this rule applies just as readily to ancillary discovery proceedings, especially when, as in the current case, “the party from whom discovery is sought is not a party to the primary underlying action.” The Fourth Circuit typically requires those wishing to appeal a discovery order to fail to comply with that order, be held in contempt, and then challenge the validity of the order on appeal of the contempt ruling.

The appellants urged the court to find jurisdiction under the so-called Perlman exception which sometimes allows an immediate appeal to prevent the risk of a disinterested third party disclosing potentially privileged information rather than risk contempt. Those holding the alleged privilege may appeal a discovery order in this limited situation on the disinterested third party’s behalf. The Fourth Circuit held that even if it were to adopt the Perlman exception, none of the appellants would meet its requirements as the Pages are  not disinterested parties.   As a result the court dismissed the appeal for lack of jurisdiction.

The issue of “whether a decision on an application for discovery under 28 U.S.C. § 1782 is immediately appealable” is a matter of first impression for the Fourth Circuit. In deciding that such decisions were immediately appealable, the court relied on three main arguments. First, the Fourth Circuit had previously reviewed such a decision in a case in which their power to act was passed sub silentio. While not dispositive, this previous assumption of jurisdiction carries some weight with the circuit court. Second, all other circuit courts that have considered the issue have found subject matter jurisdiction, including two circuit courts dealing with decisions related to the Chevron dispute. Third, the reasons for prohibiting immediate appeals on discovery decisions disappear when there is no underlying action on the merits in the United States.

After determining that it could properly hear the appeal, the Fourth Circuit affirmed the decision below, determining that the district court did not abuse it’s discretion in applying a Second Circuit ruling stating that any privilege pertaining to the documents in question had been waived (referred to as the Donziger Waiver). The Fourth Circuit, held that deciding otherwise would violate the principle of comity and undermine the decisions of United States District Court for the Southern District of New York.

By Zoe Niesel

Since the early spring of 2014, the world has watched Russia utilize military forces to invade and annex territory belonging to Ukraine. These actions are, unsurprisingly, raising concerns in Eastern Europe over the prospect of armed conflict in the region, the political consequences of Russian annexation of Ukrainian territory, and the effect of this conflict on ordinary civilians. But there is another potential cost associated with Russia’s actions that should not be overlooked – the loss of Ukrainian cultural heritage. History is replete with examples of the destruction of cultural heritage during periods of instability, from Napoleon’s systematic looting of Egypt to the state-sanctioned pillage and burning of museums in Kuwait by Iraq during the Persian Gulf War.[1] The question now is whether that destiny is inevitable for Ukraine’s unique cultural resources, or whether such collateral damage can be prevented.

The current crisis in Ukraine has its roots in a protest movement known as “EuroMaidan,” which began when former Ukrainian President Viktor Yanukovych rejected a treaty with the European Union that would have significantly expanded economic ties between the EU and Ukraine.[2] EuroMaidan quickly became a broader movement protesting the widespread corruption of the Yanukovych regime.[3] The deaths of at least 82 protestors further inflamed the cause and resulted in Yanukovych fleeing the capital amid accusations of corruption and brutality.[4]

In response to Yanukovych’s ouster from power, Russian military units invaded the Crimean Peninsula in southern Ukraine and seized government buildings throughout the region.[5] Russian President Vladimir Putin justified the invasion of Crimea by stating that it was protecting ethnic Russians from extreme “nationalist” elements within the new Ukrainian government.[6] Russian military units surrounded Ukrainian military facilities in Crimea and forced the surrender of Ukrainian soldiers.[7] In Eastern Ukraine, pro-Russian separatists, with the help of Russian military officials, have targeted Ukrainian police and military installations. Estimates put the total number of Russian troops involved in Crimea and Eastern Ukraine at 20,000-30,000, and Ukrainian forces have withdrawn from the Crimean Peninsula following Russia’s seizure of the Ukrainian naval headquarters and other military bases.[8] Ukraine continues to denounce Russia’s invasion of Crimea and asserts that its actions in that region and in Eastern Ukraine are violative of international law.[9]

With Russian troops stationed on the Crimean Peninsula and Russian military officials purportedly organizing Ukrainian military defectors in Eastern Ukraine, rhetoric between the countries is becoming increasingly inflammatory, and international watchdog groups are already questioning the safety of Ukraine’s archaeological and cultural resources.[10] Ukraine’s cultural heritage spans over 30,000 years, as archaeological evidence suggests that humans displaying ascertainable cultural traditions have inhabited the region since the Upper Paleolithic.[11] Such a long history has, unsurprisingly, led to modern Ukraine’s rich archaeological and cultural landscape. The nation is currently host to seven World Heritage sites and has submitted an additional fifteen sites for tentative consideration.[12] These sites range from ancient Greek colonies to 19th century Orthodox cathedrals made entirely of wood.[13]

Because current aggressions are centered primarily in Crimea and Eastern Ukraine, the archaeological and cultural resources of those regions seem particularly prone to damage or destruction. Unfortunately, both areas are home to some of Ukraine’s most ancient, and vulnerable, archaeological and historic sites. Such examples include Tauric Chersonese, an ancient city founded in the 5th century B.C.E. on the Crimean Peninsula.[14] Known as the “Ukrainian Pompeii,” Tauric Chersonese is the largest classical archeology site on the Black Sea. It includes the ruins of defensive fortifications, city gates, a mint, temples, and a theatre.[15] A museum located at the site displays thousands of objects dating from the 5th to 15th centuries A.D., including a text from the 3rd century A.D.[16]

Additional important cultural sites include the ancient city of Sudak, the Khan’s Palace, and Kamyana Mohyla. Sudak, founded in the 6th century, contains an excellently preserved example of a Genoese fortress along the Black Sea.[17] The Khan’s Palace, located in the city of Bakhchisaray, is a 16th century palace built with Ottoman and Italian influences that served as the main political, religious, and cultural center of the Crimean Tatar people during the reign of the Crimean Khans.[18] The walled complex contains gardens, mosques, harems, and a cemetery.[19] Finally, the archaeological park Kamyana Mohyla in the province of Zaporizhia contains Neolithic burial mounds and petroglyphs and showcases the religious practices of people in southeast Europe for a period spanning from the 20th century B.C. to the 17th century A.D.[20]

It is no surprise that hostilities between Ukraine and Russia would pose a grave threat to archaeological and cultural sites. But whether affirmative action to prevent the destruction of cultural property is required can only be answered by assessing the applicability of the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict (“Hague Convention”). For over sixty years, the Hague Convention has served as the world’s only multilateral treaty to prevent the destruction of archaeological sites, archives, and museums during armed conflicts.[21] Both Russia and the Ukraine are State Parties to the Hague Convention and are thus obligated to honor its mandated cultural property protections.

Under the Hague Convention, cultural property and archaeological sites are entitled to protection during (1) an armed conflict between two or more State Parties or (2) cases of “partial or total occupation of the territory” of a State Party by another State Party.[22] In these situations, State Parties to the Hague Convention are required to avoid using, requisitioning, or directing acts of hostility against cultural property and may not operate in adjacent areas if it exposes cultural property to risk.[23]

In applying the Hague Convention to the situation in Ukraine, Russia must begin to provide protection to Ukrainian cultural property. First, this is a situation that would qualify as an “armed conflict” under the Hague Convention. A precise definition of an “armed conflict” under the Hague Convention is not available, but international jurisprudence suggests that it will exist “whenever there is a resort to armed force between States.”[24] Here, Russia has utilized armed forces to neutralize the Ukrainian military in Crimea and has been involved in the capture of Ukrainian military, police, and naval facilities in Crimea and Eastern Ukraine.[25] Ukraine, in turn, has responded to such actions with military force. As such, the use of armed forces in Ukraine suggests that the situation has risen to the level of an armed conflict.

Additionally, regardless of an armed conflict between Russia and Ukraine, the Hague Convention should apply for another independent reason – Russian forces are currently belligerent occupants in the Crimean peninsula, and perhaps now parts of Eastern Ukraine. Occupation sufficient to activate cultural property protections occurs when territory is placed under the actual authority of hostile forces.[26] U.S. observers have commented that Russian forces have operational control in Crimea and have blockaded Ukrainian naval and military access.[27] Additionally, Russian forces have overseen the disarming of military installations in the area and begun issuing new naturalization documents to Ukrainian citizens in Crimea.[28] Such actions indicate that Russian forces have actual authority in Crimea. Accordingly, as an occupying power, Russia is obligated to provide cultural property protection.

Additionally, Russian activities in Eastern Ukraine, including the region of Donetsk, are likely to rise to the level of belligerent occupation necessitating cultural property protection. Reports indicate that pro-Russian gunmen have captured several cities and overrun police installations in Donetsk. An internet video released in April 2014 shows that Ukrainian police who defected during the hostile takeovers were being reorganized under officers from the Russian military,[29] and all available evidence points to Russian military officials having control over territory captured by pro-Russian separatists. As the Russian offensive continues to spread, captured areas should receive protection under the Hague Convention.

Since the Hague Convention applies during Russia’s intervention in Crimea and military offensive in eastern Ukraine, Russia is faced with a variety of obligations regarding Ukrainian cultural property. First, Russia must resolve not to harm any cultural property during the length of the armed conflict or occupation.[30] This means that it may not use areas containing cultural property, or adjacent areas, in ways which would expose the property to damage. Such a proscription is particularly important in the case of the Tauric Chersonese in Crimea, which suffers from structural damage due to surrounding modern development.[31] Additionally, Russia must work to prohibit any form of theft, looting, or misappropriation of cultural property at archaeological sites or museums.[32] Such a task is not easy, as instability during hostilities breeds theft and destruction of cultural property. For example, the American occupation of Iraq in 2003 was marked by mass looting and destruction at the Baghdad Museum.[33] It is thus critical that Russia obey the mandates of the Hague Convention and work to prevent such actions.

Finally, Russia has additional cultural property obligations due to its status as an occupying power. As such, it must not only take steps to avoid damage to any cultural property, but must also actively work with Ukrainian officials to safeguard Ukrainian heritage.[34] If Ukraine’s national authorities cannot safeguard their own cultural property, Russia faces an even heavier burden – it becomes responsible for taking “necessary measures of preservation.”[35] In essence, Russia must not only prevent the destruction of Ukraine’s cultural property, but must also actively work to protect it from hostilities.

There is currently no end in sight to Russia’s involvement in Ukraine.[36] But while the situation remains uncertain, it is hoped that Russia will abide by its obligations under the Hague Convention and protect Ukrainian cultural heritage in the areas under Russian control. Such obligations may be increasingly pressing as reports suggest that at least one Ukrainian museum has already been the victim of looting and damage.[37] Avoiding additional incidents will not only satisfy Russian treaty obligations, but help to preserve priceless heritage for future generations.

 

 

[1].   Harvey E. Oyer III, The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict – Is It Working? A Case Study: The Persian Gulf War Experience, 23 Colum.-VLA J.L. & Arts 49, 49, 59 (1999).

[2].   See EU Rejects Russia ‘Veto’ on Ukraine Agreement, BBC News (Nov. 29, 2013, 3:04 PM), http://www.bbc.com/news/world-europe-25154618 (reporting on Yanukovych’s refusal to sign Ukraine’s trade deal).

[3].   Lecia Bushak, Kiev’s Minstrel of the Street Revolution, Newsweek (Feb. 18, 2014, 4:33 PM), http://mag.newsweek.com/2014/02/21/kiev-s-minstrel-street-revolution.html; see also Shaun Walker et al., With Viktor Yanukovych Gone, Ukraine Hunts for Secrets of Former Leader, Guardian (Feb. 23, 2014, 2:28 PM) http://www.theguardian.com/world/2014/feb/23/viktor-yanukovych-ukraine-secret-documents (discussing the exposure to the public of Yanukovych’s luxurious compound and secret documents).

[4].   David M. Herszenhorn, Ukraine Rushes to Shift Power and Mend Rifts, N.Y. Times, Feb. 24, 2014, at A1.

[5].   Shaun Walker et al., Russian ‘Invasion’ of Crimea Fuels Fear of Ukraine Conflict, Guardian (Feb. 28, 2014), http://www.theguardian.com
/world/2014/feb/28/russia-crimea-white-house.

[6].   Haroon Siddique et al., Ukraine Crisis: Kerry Says Russia ‘Hiding Hand Behind Falsehoods, Guardian (Mar. 4, 2014 10:55 AM), http://www.theguardian.com/world/2014/mar/04/ukraine-crisis-shots-fired-crimea-airbase.

[7].   Alex Marquardt, Russians Seize More Crimean Facilities, Demand Ukrainians Surrender, ABC News (Mar. 3, 2014), http://abcnews.go.com
/International/russians-seize-crimean-facilities-demand-ukrainians-surrender/story?id=22749979.

[8].   David M. Herszenhorn & Andrew E. Kramer, Ukraine Plans to Withdraw Troops from Russia-Occupied Crimea, N.Y. Times, Mar. 19, 2014, at A14, available at http://www.nytimes.com/2014/03/20/world/europe
/crimea.html?_r=0; Ruth Pollard, Russia Closing Door on Crimea as Troops Build Up, Sydney Morning Herald (Mar. 13, 2014), http://www.smh.com.au
/world/russia-closing-door-on-crimea-as-troops-build-up-20140313-hvi0c.html.

[9].   Walker et al., supra note 5.

[10].   Blue Shield International, Blue Shield Statement on Ukraine, Blue Shield, http://www.blueshield-international.org/cms/index.php/en/home/69-blue
-shield-on-ukraine.

[11].   Sandrine Prat et al., The Oldest Anatomically Modern Humans from Far Southeast Europe: Direct Dating, Culture and Behavior, 6 PLoS One e20834, 1–3 (2011), available at http://www.plosone.org/article/info
%3Adoi%2F10.1371%2Fjournal.pone.0020834.

[12].   Ukraine, UNESCO World Heritage Center, http://whc.unesco.org
/en/statesparties/ua (last visited May 13, 2014).

[13].   Id.

[14].   UNESCO World Heritage Committee, Convention Concerning the Protection of the World Culture and National Heritage, 37th Sess. at 210, WHC-13/37.COM/20 (June 16–27, 2013).

[15].   Ministry of Culture of Ukraine et al., Nomination Dossier of the Property for Inclusion on the World Heritage List: The Ancient City of Tauric Chersonese and its Chora (5th century BC–14th century AD), 21–24 (2012).

[16].   Id. at 34, 55–56.

    [17].   Ministry of Construction, Architecture, Housing and Municipal Economies of Ukraine, Complex of the Sudak Fortress Monuments of the 6th–16th c., 1 (2007).

[18].   Delegation Permanente d’Ukraine Auprès de l’UNESCO, Bagçesaray Palace of the Crimean Khans, 1 (2003).

[19].   Id.

[20] State Service for the Cultural Heritage Protection, Archaeological Site “Stone Tomb” 1 (2006), available at http://whc.unesco.org/en/tentativelists/5075/.

 

[21].   See generally Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 [hereinafter Hague Convention].

[22].   Id. at art. 18.

[23].   Id. at art. 4.

[24].   Prosecutor v. Tadic, Case No. IT-94-1, ICTY Appeal Decision, ¶ 70 (Oct. 2, 1995), http://www.icty.org/x/cases/tadic/acdec/en/51002.htm.

[25].   Herszenhorn & Kramer, supra note 8.

[26].   Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, Jan. 26, 1910, 187 Consol. T.S. 227.

[27].   Marie-Louise Gumuchian et al., Ukraine Mobilizes Troops after Russia’s ‘Declaration of War,’ CNN (Mar. 3, 2014), http://www.cnn.com/2014/03/02/world/europe/ukraine-politics/.

[28].   Natalia Antelava, The Creeping Annexation of Crimea, New Yorker Online (Mar. 5, 2014), http://www.newyorker.com/online/blogs/newsdesk
/2014/03/the-creeping-annexation-of-crimea.html.

[29].   Simon Shuster, Ukraine Powerless to Act as East Slips Under Russian Control, Time (Apr. 14, 2014), http://time.com/61971/ukraine-powerless-to-act-as-east-slips-under-russian-control/.

[30].   Hague Convention, supra note 20 at art. 4.

[31].   Global Heritage Fund, Saving Our Vanishing Heritage 15 (2010).

[32].   Hague Convention, supra note 20 at art. 4, para. 3.

[33].   Sasha P. Paroff, Another Victim of the War in Iraq: The Looting of the National Museum in Baghdad and the Inadequacies of International Protection of Cultural Property, 53 Emory L.J. 2021, 2028 (2004).

[34].   Hague Convention, supra note 20 at art. 5.

[35].   Id.

[36].   Steven Lee Myers & Ellen Barry, Putin Reclaims Crimea for Russia and Bitterly Denounces the West, N.Y. Times (Mar. 18, 2014), http://www.nytimes.com/2014/03/19/world/europe/ukraine.html?_r=0.

[37].   Blue Shield International, supra note 10.

By: Scott W. Lyons*

Introduction

For the past two decades, the exhaustive discourse concerning a duty to prosecute crimes against humanity primarily discussed the transition to democracy, replacing authoritarian regimes, and the resultant responsibility of the incoming government to hold the previous government accountable for serious atrocities.[1]  As this situation described a predominant international issue in the 1970s, 1980s, and 1990s, the legal focus was appropriate.  This issue is less relevant now with the increase in nascent democracies that have undergone transition[2] and the recent proliferation in the prosecution of former heads of state.[3]  Nevertheless, violent conflicts will endure and will continue to be confined predominantly within states.[4]  Therefore, it is vital to evaluate one of the challenging questions of the twenty-first century: whether amnesties for non-State actors are still possible for negotiating the end of civil wars and other violent internal threats to States.[5]

In 1999, the Sierra Leone government and the rebel army Revolutionary United Front signed the Lomé Accord peace agreement, offering amnesty to rebel leaders and other combatants for crimes against civilians, in order to halt eight years of civil war that caused thousands of deaths and massive human rights abuses.[6]  The agreement was rendered invalid for the following reasons: the rebels breached the agreement through continued violence and atrocities; the agreement provided blanket amnesty; and, most importantly, the atrocities were severe enough to warrant the establishment of an international tribunal,[7] which did not view the agreement as barring prosecution.[8]

More recently, Ugandan President Yoweri Museveni repeatedly offered amnesty to Joseph Kony and other leaders of the Lord’s Resistance Army to end two decades of violence in Northern Uganda that cost thousands of lives through heinous acts, caused mass chaos, and uprooted millions from their homes.[9]  President Museveni previously referred the case of Kony and his fellow commanders for prosecution to the International Criminal Court (“ICC”), which stated that it is under no obligation to honor an amnesty agreement by the Ugandan government.[10]  Nonetheless, Museveni announced that he would grant amnesty if they reached a peace agreement where Kony and his followers renounced terrorism.[11]  Some Ugandan civil society organizations similarly asked the ICC to withdraw the indictment and allow the popular amnesty proposal to go forward in order to help end the conflict.[12]

While the Lomé Peace Accord did not prevent prosecution in an ad hoc international tribunal, and the commanders of the Lord’s Resistance Army are still under indictment by the ICC, the offers of amnesty raise the focal issue of this Article.  Can a State create a viable and effective amnesty agreement for potential crimes against humanity to cease internal conflict[13] or induce the end of a civil war?  This Article asserts that the recent expansion of the definition of crimes against humanity, the new willingness to assert universal jurisdiction, and the establishment and early indictments of the ICC have rendered any domestic amnesty for crimes against humanity ineffective on the international plane and have thus removed amnesty as a method to achieve peace.

Part I of this Article summarizes the unsettled debate over the duty to punish noninternational crimes against humanity[14] and provides a background of the recent international developments effectively ending domestic amnesty.  Part II discusses how the cumulative international changes render domestic amnesty agreements for crimes against humanity ineffective, even if the granting State perceives the amnesty to be valid.  Part III suggests that a United Nations Security Council (“Security Council”) resolution is the only remaining method for the international community to validate an otherwise ineffective agreement if it is determined to be an absolute necessity, and not just a convenience, to grant amnesty in exchange for peace.  The Security Council’s recent nonbinding resolution concerning the situation in Yemen was a significant, but legally insufficient, first step towards international validation of an amnesty agreement.[15]

I.  Overview: The Unsettled Debate and Recent Developments

A.     Valid Amnesties to End Conflict

Amnesty is legitimate if it only applies to crimes that a State has no international requirement to prosecute or extradite for prosecution.[16]  State authorities have the right to provide amnesty to State opponents since the State is the enforcer of its own penal rules.  Hence, a State can make decisions regarding amnesty up to the limits of international law.  A State, however, cannot grant amnesty for certain gross violations of international or humanitarian law.[17]  Article 6(5) of the Second Additional Protocol to the Geneva Conventions (“Protocol II”) explicitly encourages granting, at the conclusion of internal hostilities, “the broadest possible amnesty to persons who have participated in the armed conflict . . . .”[18]  This provision demonstrates international support and validity for action to create postconflict reconciliation and normal relations within a divided State.[19]  The Protocol II text is unclear as to whether it precludes amnesty for crimes against humanity committed during an internal conflict.[20]  Negotiating parties defeated an attempted provision in Protocol II to exclude protection from prosecution for crimes against humanity.[21]  Without a specific indication of excluded crimes, the only invalid amnesties are for crimes where there is an established international requirement to prosecute.[22]

B.     The Debates Surrounding Crimes Against Humanity

There are a few types of amnesty for domestic crimes that the international community automatically considers invalid.  Self and blanket amnesties are deemed illegitimate as a result of treaty law and jurisprudence.[23]  Certain domestic human rights crimes committed outside the spectrum of war or any type of international conflict are exempt from amnesty due to a duty to prosecute.  International customary law and specialized treaties prevent a State from issuing amnesty for these types of crimes.[24]  Examples of these types of crimes are genocide[25] and torture.[26]

The debate as to whether there is a duty to prosecute noninternational crimes against humanity is not settled due to ambiguity in both treaty law and customary law, two of the main sources of binding international law.[27]  As a result, it is difficult to determine whether amnesty for these crimes is valid.  There is no specific convention for crimes against humanity.  Therefore, investigations into a duty to prosecute have revolved around many other aspects of human rights and humanitarian law and have resulted in conflicting determinations.[28]

1.     Treaty Law

Some legal commentators use human rights treaties, such as the International Covenant on Civil and Political Rights[29] (“ICCPR”), the American Convention on Human Rights[30] (“American Convention”), and the European Convention for the Protection of Human Rights and Fundamental Freedoms[31] (“European Convention”), to illustrate a duty to prosecute crimes against humanity.[32]  These Conventions enumerate specific rights, and yet they are silent about a duty to prosecute violations of the enumerated rights—they only state that they obligate States to “ensure” these rights and to provide a remedy.[33]  These legal commentators argue that the duty to “ensure” these rights creates an affirmative obligation to prosecute violators of such rights, and thus is an invalidation of amnesty.[34]  The legal commentators further assert that judicial action is a natural extension of a right to a remedy.[35]  To support this principle, they rely upon interpretations of the ICCPR by the Human Rights Committee (“HRC”)[36] and jurisprudence in the Inter-American[37] and European systems[38] that suggest a duty to punish those responsible for atrocities.

Other commentators counter that the above-mentioned rationale is an “overstretch” with no explicitly stated binding duty to prosecute.[39]  They support their contention by arguing the HRC’s interpretation of the ICCPR is misguided.  The HRC is not a judicial body authorized to render a binding interpretation of law.[40] Moreover, during the negotiations of the ICCPR, the drafters specifically considered and rejected a proposal requiring prosecution of treaty’s violators.[41]  Thus, reading a requirement into the covenant is inconsistent with the drafters’ intent.[42]  These commentators also point out that a careful reading of the language reveals that the HRC never specifically concluded there was an obligation to prosecute but instead idealistically “urged” prosecution and suggested that violators “should” be brought to justice.[43]  Furthermore, though the jurisprudence carries authoritative weight in the respective regions, the Inter-American Court never directed a government to institute criminal proceedings, nor did it specifically refer to prosecution as opposed to other forms of punishment.[44]  The decisions suggest only a requirement to investigate and impose some type of punishment but not necessarily to prosecute.[45]  Therefore, the ICCPR is being misapplied.

It is important to also note that other legal scholars, including some that advocate a duty to prosecute, opine that there is no treaty obligation to prosecute and that a determination can only be made via customary law.[46]

2.     Customary Law

Customary international law exists when there is “a general and consistent” State practice due to a sense of legal obligation, or opinio juris.[47]  To determine State practice, action or acquiescence is determinative, not verbal statements alone.[48]

Those commentators who advocate that there is a duty to prosecute noninternational crimes against humanity enshrined in customary law look to an array of United Nations (“U.N.”) General Assembly resolutions, treaty law, and other factors to show an emerging norm.[49]  These commentators suggest that the wide acceptance and adherence of the various human rights treaties establish a norm.[50]  In other words, the treaties, through their mere existence, reflect State practice.  As a supposed reflection of State practice, they consequently establish a norm.  These commentators also point to the 1971 General Assembly Resolution on War Criminals[51] (“1971 Resolution”), the 1973 Principles of International Cooperation in the Detection, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity[52] (“Principles of Cooperation”), and other U.N. resolutions as international declarations recognizing a State’s duty to prosecute.[53]  The 1971 Resolution explicitly “urges” States to punish violators of crimes against humanity.[54]  Similarly, the Principles of Cooperation insist on detecting, arresting, and bringing to trial persons suspected of committing crimes against humanity.[55]

Besides U.N. resolutions and treaties indicating State practice and opinio juris, one of the commentators supporting a duty to prosecute points out that States have never denied an obligation to prosecute, even when granting amnesty.[56]  Instead, States justify the action as an unfortunate necessity.[57]  This response shows widespread recognition of the principle of prosecution for crimes against humanity.[58]

Commentators arguing against a customary obligation to prosecute counter that the General Assembly resolutions are not sources of law because they are nonbinding and do not substantially indicate State practice.[59]  Moreover, there was a significant amount of abstentions in resolution votes indicating hesitation to support the principles.[60]  Further, the drafting record of one of the earliest cited resolutions, the U.N. Declaration on Territorial Asylum[61] (“Asylum Declaration”), stated that “[t]he majority of members stressed that the draft declaration under consideration was not intended to propound legal norms or to change existing rules of international law.”[62]  This record shows that at least the Asylum Declaration—and likely all the other resolutions—was advisory and not intended to bind States.[63]

In response to the assertion of widespread and uniform State practice of prosecuting of crimes against humanity, commentators additionally counter that the practice of granting amnesty—not prosecution—has been the established international norm.[64]  They cite a nonexhaustive list of Algeria, Argentina, Bangladesh, Cambodia, Chile, El Salvador, France, Guatemala, Haiti, India, Panama, the Philippines, Romania, South Africa, Uruguay, Zimbabwe, and post-unification Germany as States that have granted amnesty for atrocities over the last four decades, sometimes with explicit U.N. encouragement and approval.[65]  While human rights bodies of the U.N. find there is a clear duty to prosecute, States, the Security Council, and the Secretary-General have practiced a contrary policy toward crimes against humanity.[66]

The conflicting policies of the international community have most recently been revealed in the Middle East.  Not only did former Yemeni President Ali Abdullah Saleh grant amnesty for those responsible for “follies” and “errors” during the months of fighting in Yemen, but the international community negotiated his exit with immunity for the killing of opposition protestors.[67]  On the other hand, former Egyptian President Hosni Mubarak was prosecuted for the commission of similar crimes in Egypt.[68]

Those commentators opposed to a customary duty to prosecute assert that, even when State practice is contrary to the rule of prosecution, States invoke countervailing interests, which act to confirm acceptance of the principle.[69]  The commentators who believe there is no customary duty respond that this basis is factually incorrect because most States never mention an international duty to prosecute, and the countervailing interests argument shows that there is no recognition of an “absolute” duty.[70]

In a final indication of the unsettled debate in international law concerning a duty to prosecute crimes against humanity, a legal scholar notes that the preamble in the Rome Statute of the International Criminal Court[71] (“Rome Statute”) proclaims that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”[72]  This preamble shows that prosecution of crimes against humanity is important to the international community, but at the same time, neither the preamble nor the statute creates a binding obligation for States to prosecute.[73]

The uncertainty of the duty to prosecute creates a dynamic in which States cannot properly evaluate their obligations and options when confronted with potential crimes against humanity.  While this uncertainty can lead to a State’s willingness to offer amnesty in order to create peace, the State may be in violation of international legal principles, and the amnesty may be overturned by future domestic or regional tribunals.  Thus, both the State and the recipient of the amnesty have no legal certainty regarding a negotiated internal agreement.

C.     Defining Crimes Against Humanity

Famous legal theorists have suggested that crimes against humanity are as old as humankind itself.[74]  The modern concept of crimes against humanity, however, originated in the preamble to the 1907 Hague Convention, in the popularly termed Martens Clause.[75]  The first application of this principle occurred soon after as a condemnation of the massive killing of Armenians in Turkey during the First World War.[76]  The Treaty of Sevres, negotiated between the Allies and Turkey, provided for prosecution of those responsible for “crimes against the laws of humanity.”[77]

In 1945, the victorious Allied powers codified crimes against humanity for attacks against a State’s own citizens in the International Military Tribunal (“IMT”), which was created to prosecute war criminals from World War II.[78]  For the IMT, crimes against humanity was defined as:

[N]amely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.[79]

To be guilty under this provision, there must be a connection to the other jurisdictional crimes of the IMT.[80]  Example violations are crimes against peace and war crimes.[81]  The International Military Tribunal for the Far East[82] and the Control Council Law No. 10[83] enacted substantially similar definitions of crimes against humanity with only minor exceptions.[84]

In the years soon after World War II, the U.N. International Law Commission (“ILC”) attempted to codify international law.[85]  In 1954, the ILC adopted the Draft Code of Offenses against Peace and Security of Mankind[86] (“Draft Code”), which defined crimes against humanity as: “Inhuman acts such as murder, extermination, enslavement, deportation, or persecutions, committed against any civilian population on social, political, racial, religious or cultural grounds by the authorities of a State or by private individuals acting at the instigation or with the tolerance of such authorities.”[87]  The Draft Code differs from the IMT in the following ways: removing the war nexus and therefore codifying that crimes against humanity could occur any time; specifically criminalizing acts committed by all individuals; adding “social” grounds as a basis for persecution; and eliminating the connection to other crimes in the code.[88]  The codification process was followed in the 1980s by several domestic prosecutions, which used different interpretations of the definition of crimes against humanity.[89]

During the 1990s, in response to the atrocities committed in the former Yugoslavia and Rwanda, the Security Council used Chapter VII powers to create ad hoc tribunals to prosecute those responsible for serious violations of international law.[90]  The Statutes for the International Criminal Tribunal for the Former Yugoslavia[91] (“ICTY”) and the International Criminal Tribunal for Rwanda[92] (“ICTR”) employed some of the main components of the IMT statute but differed from each other.[93]  The ICTY maintained a required nexus to armed conflict, but crimes could be committed against any part of the civilian population;[94] the ICTR omitted a conflict requirement, but the acts had to be part of an attack based upon national, political, ethnic, racial, or religious grounds.[95]

The result of the evolution of crimes against humanity is that, with no authoritative definition in a treaty and inconsistencies in the precedent, the exact definition in customary law is difficult to ascertain,[96] and a State may be uncertain as to whether it is granting amnesty for a crime against international law.

D.    Universal Jurisdiction

The historical origins of universal jurisdiction stem from the crimes of piracy and the slave trade.[97]  The slave trade, however, is most relevant to the punishment for domestic violations of crimes against humanity since the slave trade did not threaten the security or relations of foreign nations but instead was an activity “worthy of condemnation and international response.”[98]  This criminal activity established a new basis for jurisdiction—the international character of the offense—with no nexus needed between the prosecuting State and the party that violated international law.[99]  The seriousness of being hostis humani generis anywhere in the world became enough to warrant prosecution in any state.[100]  The State that exercises universal jurisdiction acts on behalf of the international community in the capacity of actio popularis to preserve world order and harmony.[101]

Even though States owe human rights obligations to every other State,[102] the validity of universal jurisdiction rests upon its recognition as an appropriate way to regulate certain conduct as a crime of universal concern.[103]  Since there is no specific convention for internal violations of crimes against humanity, and thus no treaty providing for universal jurisdiction or an aut dedere aut judicare tenant, a determination of validity must be made via customary law.[104]  Many prominent legal scholars suggest that there is now a customary law principle for exercising universal jurisdiction for internal crimes against humanity.[105]  This debate has not been firmly settled, as even one of the strongest advocates of universal jurisdiction concedes that “[u]niversal jurisdiction is not as well established in conventional and customary international law as its ardent proponents, including major human rights organizations, profess it to be.”[106]

There is, at a minimum, permissive universal jurisdiction for crimes against humanity.[107]  Permissive jurisdiction enables any State to create domestic law authorizing the right to exercise jurisdiction over specified crimes,[108] a step that several States have recently taken.  As of 2011, sixty-two States have legislation criminalizing international crimes against humanity either in whole or in part.[109]

II.  Structural Limits on Amnesty for Crimes Against Humanity

As discussed previously, amnesty is invalid when there is a duty to prosecute resulting from either treaties or international customary law.[110]  Whether this duty exists for noninternational crimes against humanity is unsettled, and it is difficult to positively conclude that there is an absolute obligation of States to prosecute.  Therefore, since this principle has not crystallized into law, it may be possible that a State can legitimately provide amnesty for these crimes.[111]  The difficulty arises because States cannot use domestic action to preclude international criminal prosecution.[112]  A domestic amnesty agreement could legitimately prevent criminal liability within the state but be ineffective in deterring prosecution in any of the new constructs in international law.[113]  If the ICC or other States are able to disregard a valid domestic amnesty agreement and legitimately prosecute crimes against humanity under international criminal law, the domestic amnesty is rendered irrelevant.

A.     The Expansion of the Definition of Crimes Against Humanity

The new definition of crimes against humanity, which is codified for the first time in a multilateral treaty,[114] is a reflection of all the developments in international law since the IMT.[115]  It also represents, however, a significant broadening of the definition.  This broad interpretation somewhat blurs the lines separating what were purely domestic crimes from international crimes and increases the number of internal acts that give rise to international concern.

Article 7 in the Rome Statute defines crimes against humanity as any one of the enumerated acts “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”[116]  The definition includes an explanatory paragraph that attempts to narrow the scope of applicable crimes by stating that an “‘[a]ttack directed against any civilian population’ means a course of conduct involving the multiple commission of acts . . . against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”[117]

During the drafting of Article 7, a significant number of delegates expressed concern about maintaining criteria to distinguish crimes against humanity from crimes under domestic law,[118] with a significant focus on the elements used in the ICTR.[119]  One of the ways this distinction was accomplished in the ICTR was by the inclusion of the motivational basis for the attack, such as on racial or religious grounds.[120]  The delegates rejected the motivation criterion because it would significantly increase the burden of proof and complicate prosecution.[121]  The ICTY required a nexus to armed conflict, instead of a motivational basis, as an element to constitute crimes against humanity, but the drafters reiterated that it is established in customary law that offenses could occur during peacetime.[122] Neither the elements of armed conflict nor discriminatory motive were included in Article 7’s definition of crimes against humanity, and so the distinction from domestic crimes had to come from other aspects of Article 7.

The additional element of “with knowledge of the attack” found in Article 7’s definition of crimes against humanity could have raised the threshold of a crime against humanity by requiring the perpetrator to have an understanding of the organizational policy or reason behind the attack.[123]  The drafters, however, rejected this interpretation and decided not to require proof showing that the perpetrator had knowledge of the characteristics or details of the organization’s plan.[124]  Thus, intent to further the attack meets the mental element by itself.[125]

Article 7’s definition does not contain an element requiring State involvement in the crimes or, conversely, action against the State.[126]  This design is a divergence from the 1954 Draft Code, which required the acts to be instigated or tolerated by governmental authorities.[127]  Though an attack against civilians to gain control of the State would clearly be included within the scope of crimes against humanity, likely too would attacks for nonpolitical reasons, as long as they were organized and resulted in significant human suffering.[128]  For example, an attack that would likely bring intertribal conflict and territorial actions by warlords falls within the scope of Article 7.

The drafters struggled with whether to make “widespread” and “systematic” cumulative elements or disjunctive elements, with each being sufficient to meet the threshold of crimes against humanity.[129]  In the end, they chose these two conditions to be alternative requirements.[130]  “Widespread” requires a large-scale act directed against a multitude of victims,[131] and “systematic” requires some degree of planning or pattern that could result in repeated acts against civilians.[132] “Widespread,” however, does not mean that it has caused the death of more than one person.[133]  One victim is sufficient to meet this requirement if the crime was meant to intimidate a whole population or if the crime had “the singular effect of an inhumane act of extraordinary magnitude.”[134]  The result is that the assassination of a head of State or tribal leader could constitute a crime against humanity if intended to destabilize the population,[135] as could a spontaneous attack by one group of the population that devastated a village.[136]  A single individual committing an act against a single victim could be a crime against humanity as long as there is a connection to a widespread or systemic context.[137]  Even a single act of speech can be regarded as a crime against humanity and meet this threshold.[138]

The modifying paragraph requiring a “commission of multiple acts” was originally a compromise by the Canadian delegation in an attempt to alleviate concerns of those States that felt that “widespread” and “systematic” should be cumulative to raise the threshold of crimes that rise to an international level.[139]  The “multiple commission” threshold for “systematic,” however, only requires there be more than one act.[140]

Most recently, a Pre-Trial Chamber of the ICC started to potentially limit the statutory definition of crimes against humanity but instead further broadened it.  Pre-Trial Chamber III reaffirmed that a “State or organizational policy” is a key contextual element for an act as indicated by the Rome Statute.[141]  The Appeals Chamber of ICTY had held in Prosecutor v. Kunarac[142] that there is no requirement for the existence of either a policy or a plan behind an attack in ICTY’s definition.[143]

Pre-Trial Chamber III, however, also held that “deliberate failure to take action” in “exceptional circumstances” may be sufficient and that policies need not be explicitly defined or formalized.[144]  The broadening principle of omission, instead of just commission, giving rise to liability was exemplified by the debate regarding whether the Myanmar (Burma) government was potentially liable for crimes against humanity for its initial refusal to accept humanitarian aid after Cyclone Nargis.[145]  Article 7(2)(b) of the Rome Statute includes the intentional “deprivation of access to food and medicine” as a crime against humanity, and thus created another possible omission crime.[146]  Most importantly, these ICTY and ICC decisions, in addition to multiple domestic decisions, have reaffirmed that non-State actors operating without State policy can be liable for crimes against humanity, and many cases have not required any policy at all.[147]  With the expansion of crimes against humanity without a State policy or even a premeditation requirement, non-State actors are increasingly potentially liable for actions and omissions that result in substantial harm to civilian populations.[148]

The combined result of the new definition is that many acts that previously would have fallen under only domestic law are now possibly serious crimes of international concern and subject to international mechanisms.  Examples of these acts are the assassination of government officials by a citizen of that State, inciting speech, intertribal warfare, suicide bombings, separatist attacks, or attempts by warlords to control more territory, if they result in purposeful harm to civilians.  Even deliberate failure to prevent these crimes may be sufficient for individual criminal liability.  Furthermore, while the drafters of the Rome Statute did not intend to create customary law,[149] many international entities have recently adopted the ICC definition of “widespread or cumulative” with no other restrictive requirements and have omitted the Canadian compromise requiring more than one act or the ICC language related to policy.[150]  Therefore, a broad new definition of crimes against humanity has emerged that has reduced the types of acts that a State can grant amnesty for without the possibility of international concern.

B.     The Willingness to Use Universal Jurisdiction

Universal jurisdiction is one of the most effective ways for those who advocate international criminal accountability to ensure punishment for crimes against humanity.[151]  The recent willingness to use universal jurisdiction poses a significant threat to the viability of domestic amnesty agreements as an option to end internal conflict.

Regardless of whether universal jurisdiction is a principle enshrined in customary law, there has been an emergence of domestic legislation enabling state courts to exercise jurisdiction over crimes against humanity[152]—these are the first cases to rely entirely on universal jurisdiction.[153]  Until recently, the international community almost never used universal jurisdiction as a basis for prosecution.[154]  The International Military Tribunals after World War II, the ICTY, and the ICTR all used principles other than universal jurisdiction to prosecute violations of international law, and the ICC was formed by delegated jurisdiction as a result of a treaty.[155]  The new impetus to use state statutes permitting the exercise of universal jurisdiction is to effectively nullify domestic amnesties.

The current trend of prosecutions based on universal jurisdiction began with Spain’s 1998 extradition warrant issued for General Augusto Pinochet, former military ruler of Chile, for torture, conspiracy to commit torture, and other international crimes.[156]  Although the case initially involved crimes of torture against Spanish citizens and descendants of Spanish citizens,[157] the House of Lords of the United Kingdom found that Spain could validly exercise universal jurisdiction over the crime of torture and prosecute Pinochet for violations against citizens of any state.[158]  At the same time, the Appeals Chamber of the Spanish Audiencia Nacional held that domestic amnesty laws of other states do not bind Spanish courts and cannot be used to prevent prosecution.[159]  The Pinochet case demonstrated that universal jurisdiction can and will be used to prosecute international crimes regardless of domestic amnesty.

In the decade that followed Pinochet’s indictment, prosecutors, judges, victims, and human rights organizations initiated over fifty cases based upon universal jurisdiction in European courts alone, further indicating that this manner of prosecution is becoming widespread practice.[160]  The most relevant recent expansion of the usage of universal jurisdiction was the case brought in the United Kingdom against Fayaradi Zardad, an Afghani militia leader.

Zardad, a warlord in charge of several checkpoints in Afghanistan in the 1990s, was convicted in 2005 for torture, hostage taking, and other abuses against travelers on the highway.[161]  He had fled Afghanistan in 1996 because he was affiliated with a group opposing the Taliban and hid in Britain for almost a decade using a false passport.[162]  Zardad was the first foreign national convicted in a British court for crimes committed abroad and was one of Britain’s first attempts to prosecute a non-State actor.  After Pinochet, several British cases were attempted against former and current leaders of other states using universal jurisdiction, some of whom possibly still enjoyed immunity.  In 2005, an arrest warrant was issued for retired Israeli Major General Doron Almog before his arrival at Heathrow airport, leading him to refuse to disembark the plane.[163]  In 2009 and 2010, arrest warrants were issued for Israel’s former Foreign Minister Tzipi Livni and Deputy Prime Minister Dan Meridor, leading them to cancel their trips.[164]  The case against Zardad shows that universal jurisdiction can and will be used successfully against non-State actors.

The Special Court for Sierra Leone, in cases involving non-State actors, reiterated that amnesty granted by a State cannot cover crimes that are subject to universal jurisdiction and is “ineffective in removing the universal jurisdiction to prosecute persons accused of such crimes.”[165]  Further, the amnesty is “ineffective in depriving an international court” of jurisdiction.[166]  Due to the grave nature of crimes against humanity, any State can exercise universal jurisdiction despite an existing amnesty agreement, and all States are “entitled to keep alive and remember” the crimes.[167]  If a crime reaches the possible reduced threshold of crimes against humanity, there is little to bar prosecution of defendants.

The only main legal limitations on the exercise of universal jurisdiction over crimes against humanity may be implementing enabling legislation, possible presence requirements, and certain immunities from jurisdiction.  Only implementing enabling legislation, however, serves as a true barrier for the exercise of universal jurisdiction in cases involving halting civil war, and even that hurdle can easily be overcome.

An exercise of universal jurisdiction is dependent upon the forum State having implemented relevant statutes or treaties in order to comply with the principle of nulla poena sine lege, or no penalty without law.[168]  Someone cannot be punished for an act that is not prohibited by law, and penal laws cannot be applied retroactively.  Since crimes against humanity are not adopted as universal common law, a State must have implemented relevant legislation to prosecute these crimes.  The Norwegian universal jurisdiction case against Mirsad Repak, however, shows that States can find creative ways to prosecute.[169]  Repak, a former member of a Croatian military unit who later moved to Norway, was charged with committing war crimes and crimes against humanity in the former Yugoslavia in 1992.[170] With regards to the charges of crimes against humanity, Repak was acquitted of the relevant implemented crimes of torture and rape in Section 102 of the Norwegian Criminal Code, because the law was not in effect in 1992 when the crimes were committed.[171]  He was found guilty, however, on eleven counts of unlawful “deprivation of liberty,” a war crime under Section 223 of the 1902 Penal Code, even though the relevant law for universal jurisdiction for war crimes did not enter into force until 2008.[172]  The court held that the law could apply retroactively for the war crimes charge and is not barred because “the new provisions concerning war crimes . . . concern the same acts, the same penalty, the same prescription period, and the penal provisions protect the same interests when applying the new provisions as when applying the 1902 Penal Code that was in force when the acts were committed.”[173]  Section 223 of the 1902 Penal Code concerns “crimes against personal liberty.”[174]  Thus, while implementing legislation is required, courts may allow retroactive application under certain circumstances.  Finally, Amnesty International has undertaken an enormous project to encourage comprehensive enactment and implementation of legislation for the exercise of universal jurisdiction,[175] meaning that soon there will be few countries without the necessary laws in place.

There are conflicting laws among jurisdictions as to whether the suspect must be present in the forum State for initiation of a formal investigation and issuance of an indictment.  For example, in Germany, investigations may begin without the suspect being in the state, but a trial may not be held in absentia;[176] France and the Netherlands, however, permit the trials to be held in absentia.[177]  Irrespective of this limitation, presence requirements only keep a potential suspect from knowing that he is potentially under investigation and have no impact on whether a suspect is indicted and prosecuted once he enters the borders of the forum State.

In 2000, Belgium took universal jurisdiction an aggressive step beyond the Pinochet precedent by attempting to prosecute Yerodia Ndombasi, Congo’s then foreign minister, for crimes against humanity and war crimes.[178]  While the arrest warrant and attempt to prosecute were found to be invalid due to immunities from jurisdiction enjoyed by certain incumbent high-ranking State officers such as the head of state and minister for foreign affairs, the underlying principles of universal jurisdiction were noted as being lawful, and the immunity only exists while the individual holds office.[179]  In a separate opinion, judges of the International Court of Justice indicated that the exercise of universal jurisdiction for certain international crimes, including crimes against humanity, are not precluded under international law.[180]  The extensive exercise of universal jurisdiction against former high-ranking government officials after their departure from office indicates the immunity limitations are truly only temporal and that all exoneration or protection quickly dissolves upon change of office.[181]  Further, and most importantly, this limitation does not apply to opposition or rebel leaders, since they do not enjoy any official State protections.

Normally, the exercise of jurisdiction by another State must meet a reasonableness standard, with unreasonable prosecutions being unlawful.[182]  There is, however, no reasonableness limitation or standard imposed on universal jurisdiction.[183]  Additionally, international law permits States to eliminate any temporal limitations, and thus, the domestic courts would not be subject to any statute of limitations for crimes against humanity.[184]  There are no other substantial limitations on the exercise of universal jurisdiction over crimes against humanity.[185]

The reduction of State sovereignty due to the doctrine of universal jurisdiction means that States can no longer shield their citizens from prosecution conducted outside their territory.[186]  Since a State does not have to apply the laws of foreign governments and is only subject to international and its own municipal laws,[187] a domestic amnesty agreement can be disregarded by a foreign State wishing to exercise universal jurisdiction, even if this action is unreasonable.[188]  With States now showing a willingness to exercise universal jurisdiction for crimes against humanity, and possibly no statute of limitations, members of militant organizations, separatist movements, or warring factions who are recipients of domestic amnesty agreements have no guarantees that they will not be prosecuted if they ever leave the confines of their own borders.

C.     The Impact of the International Criminal Court

The purpose of the ICC, which entered into force on July 1, 2002, is to ensure accountability for violations of serious international crimes.[189]  The ICC is based upon a system of complementarity,[190] and its jurisdiction only applies to crimes committed in the territory of party States[191] or by nationals of party States.[192] The statute of the ICC does not mention amnesty,[193] and according to the Chairman of the Rome Diplomatic Conference,[194] the issue was never definitively resolved.[195]  The ICC, however, explicitly includes crimes against humanity as serious crimes enabling prosecution under its jurisdiction.[196]  Thus, the recent establishment of the ICC further erodes the effectiveness of domestic amnesty agreements by removing confidence that perpetrators are safe from prosecution as long as they remain within their own borders.  If a State is party to the ICC,[197] the State must cooperate fully in the investigation, the surrender, and the prosecution of a person responsible for crimes against humanity if the ICC wishes to exercise jurisdiction.[198]

A literal reading of the Rome Statute shows that domestic amnesties are in direct opposition to the purpose and essence of the ICC.[199]  The ICC can exercise jurisdiction over perpetrators of crimes against humanity, regardless of their domestic amnesty agreement, based upon the premise that the domestic courts have failed to punish the violation of crimes against humanity.[200]  Further, this is consistent with all previous internationalized tribunals, which have excluded amnesty as barring prosecution.[201]

It is possible that all domestic amnesties for crimes against humanity are invalid with regards to the ICC.[202]  It may also be possible for the ICC to recognize an amnesty agreement.  Either way, however, there are no assurances that the ICC will not prosecute the perpetrators of these crimes because the discretion to recognize domestic amnesty is completely vested outside of the State.

Articles 17 and 20 of the Rome Statute are commonly discussed as provisions possibly allowing a domestic amnesty agreement.[203]  Article 17 provides that a case is inadmissible if a State with jurisdiction is investigating or prosecuting the relevant crimes.[204]  The investigation, however, cannot be for the purpose of shielding someone from criminal responsibility[205] and cannot be inconsistent with the intent to bring the person to justice.[206]  Article 20 provides that no person shall be tried for crimes in the ICC if he or she has already been tried by a domestic court.[207]  This provision is also contingent upon the domestic proceedings not being used to shield a person from responsibility or being inconsistent with the intent to bring the person to justice.[208]  Since the premise of an amnesty agreement is that the State will voluntarily overlook or ignore the offenses,[209] even superficial investigations to give the impression of compliance with prosecutorial requirements will not prevent the ICC from exercising jurisdiction and prosecuting.[210]

Another discussed way to permit domestic amnesty is by prosecutorial discretion under Article 53.[211]  The prosecutor of the ICC can, upon examining all circumstances, choose not to prosecute.[212]  The Pre-Trial Chamber, however, can overrule this decision,[213] and Article 53 provides no assurances to someone signing a peace agreement contingent upon amnesty that he or she will not be prosecuted.  Further, the Article 53 requirement of “interests of justice” does not necessitate an affirmative finding by the court, and the prosecutor does not have to present reasons for why the case is going forward despite countervailing interests.[214]  In the end, the final decision is not the State’s—even if the State has decided that amnesty is necessary for restoring peace—but instead is dependent upon the determination by an outside international prosecutor who can choose to ignore the amnesty.[215]  Finally, there is no statute of limitations for prosecution of crimes against humanity in the ICC,[216] so even if a prosecutor decides not to exercise jurisdiction, a later one always can.

The issue of an ICC restriction on the granting of domestic amnesty was a significant concern for Colombia, a party to the Rome Statute with a protracted internal conflict against the rebel Revolutionary Armed Forces of Colombia.  Despite Article 120’s provision that “[n]o reservations may be made to this Statute,”[217]Colombia submitted an interpretative declaration with its ratification that attempted to preserve the option of offering amnesty for peace.[218]  The interpretive declaration, however, is of questionable legal significance due to the explicit prohibition on reservations[219] and the compulsory jurisdiction of the ICC, subject to limitations that do not include amnesty.

By 2012, the International Criminal Court began investigations into seven situations: Libya; Côte d’Ivoire; the Democratic Republic of Congo; the Central African Republic; Kenya; Uganda; and Darfur, Sudan.[220]  This led to fifteen arrest warrants and active cases against individuals, except from Uganda and Libya, where all individuals are either not in the courts’ possession, still considered fugitives, or have died before being arrested.[221]  The ICC indictments concerning the Democratic Republic of Congo, the Central African Republic, and Uganda were issued for rebel group leaders related to protracted conflict.[222]

Since a State may not rely upon the provisions of its own domestic law as justification for not fulfilling international treaty obligations,[223] a State that grants domestic amnesty for crimes against humanity must still comply with requests from the ICC for surrender and prosecution.[224]  The result is that someone can possibly receive a valid amnesty for crimes against humanity protecting them from domestic courts, but the ICC can still choose to prosecute them and a State must turn the person over for trial if the State is a party to the Rome Statute.  This makes an amnesty agreement for members of militant separatist organizations or oppositional warring factions of little or no value if crimes against humanity have been committed.

D.    Implications of Ineffective Domestic Amnesty

The issue of domestic amnesty to end the perpetuation and possible escalation of internal conflict exposes the conundrum of legally and morally reconciling “the right, on the one hand, of the individual victim and of society to demand prosecution, and the need and right, on the other, of ordinary people to live in peace.”[225]  States have used amnesties for centuries to end internal conflict and to facilitate the transition from war to peace, including the granting of amnesties to participants in the Whiskey Rebellion of 1794 and following the United States Civil War.[226]  Sometimes democratic governments granted these amnesties for serious atrocities, including crimes against humanity in the name of peace and reconciliation, such as England with the Irish Republican Army.[227]  The recent changes in international law, however, may end that practice as an option for many States.

Since the basis of amnesty is that the recipient will not be prosecuted, those who receive amnesty must believe that they are protected from judicial proceedings in exchange for ceasing hostilities and possibly relinquishing their weapons.[228]  Now there is a new definition of crimes against humanity encompassing a broader range of crimes committed during internal conflict.  States are unable to prevent prosecutions for crimes against humanity in other States or by the ICC, regardless of the possible validity of the domestic amnesty agreement.  Further, even subsequent regimes in their own state are not bound by amnesty agreements for crimes violating international law.[229]  Therefore, amnesty agreements have become ineffective in accomplishing their purpose.

If international law deems organizations or factions responsible for crimes against humanity during internal conflict, the members of the groups will be subject to possible criminal proceedings and, therefore, have less of an impetus to negotiate with the government.[230]  The leaders of the groups no longer have assurances against criminal action, and thus, amnesty would not be a tool available for ending internal conflict even in an intractable situation.[231]  The progress of the international community towards assuring accountability has removed the options of States as to how to confront dire situations within their own borders.[232]

III.  A New Role for the Security Council

In situations where amnesty is an absolute necessity—and not just a convenience—to end internal conflict involving crimes against humanity, Security Council involvement is the only way for the international community to validate an agreement and provide assurances against prosecution.[233]  Although this role has not been previously conceived for the Security Council, it may be a positive development for States, and there is recent precedent for this action.

Though the Security Council’s mandate is to maintain international peace and security,[234] there is not a limitation preventing intervention in purely internal conflicts.  The Security Council has repeatedly used Chapter VII powers, which enable it to determine a threat to peace and decide what measures will be used to restore peace and security,[235] for the resolution of noninternational conflicts.[236]  This has included aggressive action such as authorization of measures to prevent a region from seceding and use of force to prevent the occurrence of civil war.[237]  The Security Council has affirmed that resolving internal conflict is directly linked to world peace and international cooperation.[238]

The Security Council has wide latitude to determine what measures are appropriate to restore international peace and security.[239]  Such a mandate could include recognizing a domestic amnesty agreement, since the Security Council permits itself to consider any actions the domestic parties have already adopted to resolve the dispute.[240]  If the Security Council decides via a resolution that respecting an amnesty agreement for crimes against humanity is needed for peace and security, it can use Chapter VII powers to impose a binding obligation to carry out this decision[241] on all 193 member States of the U.N.[242]  To have the legal authority to enforce an amnesty agreement, the Security Council must find that there is a threat to peace and security, and the subsequent resolution must be consistent with the purposes and principles of the U.N., which include principles of justice, international law, and human rights, as well as promotion of peace.[243]  The binding resolution would effectively prevent States from exercising jurisdiction and provide assurances to the domestic protagonists that they will not be prosecuted in any State if they cease fighting.

The Rome Statute explicitly authorizes the Security Council to use Chapter VII powers to preclude investigation and prosecution by the ICC.[244]  The use of a Chapter VII resolution is binding upon the ICC for twelve months, and preclusion from prosecution can be renewed indefinitely.[245]  The inclusion of this provision in a multilateral treaty indicates that States desired to have a mechanism to delay and possibly prevent prosecution that would impact all ongoing conflict.  A twelve-month delay with possible failure to renew does not provide any permanence that an amnesty provision would need for negotiated peace.  However, as Professor Ruth Wedgwood notes, “[i]t is open to question whether the Rome treaty can constitutionally limit the Council’s powers, including the Council’s right to set the temporal duration of its own mandates.”[246]

The Security Council could take several actions to endorse an amnesty agreement.  The Security Council arguably could decide that it is not bound by temporal limitations imposed by outside treaty obligations and could bind the ICC because the ICC exercises the delegated territorial and nationality jurisdiction of State parties.  Additionally, especially in cases that would have previously been reserved solely for domestic concern, the Security Council could determine that “[t]he case is not of sufficient gravity to justify further action by the Court” and that “an investigation would not serve the interests of justice.”[247]  While that finding would not be directly binding on the prosecutor or ICC Chambers, the ICC would be taking action in direct contravention of a Security Council resolution for the maintenance of international peace and security.

Most importantly, the Security Council could obligate all members of the U.N. to support the amnesty agreement and therefore preclude handing over to the ICC those potentially responsible for crimes against humanity.  While the Rome Statute creates a treaty-based obligation to turn in those indicted to the ICC, the supremacy clause of Article 103 of the U.N. Charter creates a superseding obligation.[248]  Under Article 103, “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”[249]  The obligations created by the Security Council using Chapter VII powers would trump the conflicting commitments to the ICC.

While the Security Council endorsement could potentially violate human rights agreements that create a right to redress, these again are superseded by the Charter commitments and the overall purpose of the Security Council to maintain international peace and security.  There is a strong argument that the Security Council is bound by jus cogens (“compelling law” or “peremptory norm”) and cannot override them in any resolution.  However, as previously discussed, there is no certain customary duty to prosecute crimes against humanity, and parties to the Rome Statute already envisioned the Security Council interfering with prosecution through delays.  A British court in R v. Secretary of State for Defence upheld the principle that even Security Council authorizations, as opposed to binding obligations through decisions, are sufficient to trump human rights treaty obligations due to Article 103.[250]  While this case lends strength to the argument that Security Council resolutions prevail over the Rome Statute, the case for a resolution endorsing amnesty would be stronger.  First a binding decision would create a more certain obligation.[251]  Second, in human rights treaties, rights are clearly owed to a State’s own citizens and other States.[252]  With the Rome Statute, the treaty only confers jurisdiction and prosecutorial powers.  Thus, a violation of that treaty does not directly infringe on any human rights.

The Security Council can likely decide to recognize a domestic amnesty agreement and make it binding upon both States and the ICC under its same specified legal powers.  The recognition of an amnesty agreement would enable protagonists in a conflict to have confidence in the negotiation process and have their agreement validated.

There is precedent for the Security Council implying recognition of amnesty but not to the point of legal impact.  In 1993, Haitian leaders agreed to relinquish power in return for amnesty and lifting of economic sanctions imposed by the Security Council.[253]  An agreement was signed with the support of the Security Council, which later declared it was the only valid framework for resolving the crisis in Haiti.[254]  The Security Council resolution, however, only “welcomed” the agreement without creating obligations.[255]  More recently in 2011, the Security Council took a significant step towards actual endorsement of an amnesty agreement.  To resolve the internal crisis in Yemen, the Gulf Cooperation Council, with support from the United States, negotiated President Saleh’s exit from power with amnesty.[256]  The Security Council recognized that the Yemeni authorities committed serious human rights violations but viewed the settlement agreement as being “essential” for a peaceful transition and “call[ed] on all parties in Yemen to commit themselves to implementation.”[257]  Since the peace agreement and Security Council resolution, former President Saleh freely traveled to the United States for medical treatment.[258]  The resolution for Yemen did not use the necessary language to create a binding obligation on U.N. member States but represented a foundation that the Security Council will endorse amnesty.[259]

The new role for the Security Council would provide significant benefits for the international community.  There would be a mechanism to avoid legal absolutism with regards to intractable conflicts that have been ongoing for decades.[260]  Additionally, the international community could ensure that domestic amnesties for crimes against humanity are granted only in exceptional circumstances after the approval of their representatives.  This would reduce “back-room, closed-door” negotiations based upon accommodation that have been the common methodology of peacemakers, and instead would bring the discussion concerning justice versus amnesty to the international forum for open debate.  Other States, intergovernmental organizations, victims, and human rights advocates would have the opportunity to provide advice on whether, in that specific circumstance, the need for peace and cessation of conflict outweighs the traditional demand for accountability.

Bringing the debate to the international level would also provide an opportunity to examine questions that are unsettled in international law.  The Security Council would have to determine if it is bound by human rights law and if the Security Council can permit States to derogate from peremptory norms.[261]

The ability of the five permanent members of the Security Council to exercise veto power over any resolution[262] is also beneficial for States’ need to balance peace with accountability.  The structure of the U.N. and the Security Council can often render the organization ineffective in addressing threats to international peace and security due to a tendency towards inaction.  Since a decision may be vetoed, there must be consensus that an amnesty agreement for crimes against humanity is the appropriate and only method for resolving internal conflict in a specific State.

Conclusion

If the 1970s and 1980s could be characterized as decades of impunity for atrocities and the 1990s could be characterized by the emergence of mechanisms for accountability, the first decade of the twenty-first century could be characterized by the struggles of States to end protracted asymmetrical conflicts.  Violent internal conflict still endures, and States need tools to resolve conflict.  States often have used amnesty for potential crimes against humanity to stabilize and reconcile the population.  Balancing the need for peace versus the need for accountability was viable, if the State followed certain prescriptions in granting impunity.  With the new developments in international law, however, more domestic activity rises to the level of international concern, and finding a method to create amnesty is a difficult task.  The international legal changes have rendered amnesty for crimes against humanity ineffective and removed it as a tool to create peace.  Without a binding resolution by the Security Council, an amnesty agreement has no legal impact on the international plane and does not function as an inducement for non-State actors.  The duty will now fall upon the Security Council to weigh the countervailing interests and decide how to restore peace and security when amnesty is determined to be the only option.


           *   Democracy Specialist and Anticorruption Advisor, U.S. Agency for International Development (“USAID”), Active Component-Civilian Response Corps; American University, School of International Service (M.A., 2005); American University, Washington College of Law (J.D., 2004).  I would like to thank Professor Paul Williams for his feedback and thoughtful discussions.  I wish to thank my wife, Michele Rose Lyons, for her love and support in making my writing possible.  The opinions expressed herein are those of the author and do not necessarily reflect the views of USAID or any other agency.

        [1].   See generally Ben Chigara, Amnesty in International Law: The Legality Under International Law of National Amnesty Laws 2–6 (2002); Douglass Cassel,Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, 59 Law & Contemp. Probs. 197 (1996); Heinz Klug, Amnesty, Amnesia and Remembrance: International Obligations and the Need to Prevent the Repetition of Gross Violations of Human Rights, 92 Am. Soc’y Int’l L. Proc. 316 (1998); Diane F. Orentlicher, International Criminal Law and the Cambodian Killing Fields, 3 ILSA J. Int’l & Comp. L. 705 (1997) [hereinafter Orentlicher,Cambodian Killing Fields]; Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537 (1991) [hereinafter Orentlicher, Settling Accounts]; Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449 (1990); Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 Tex. Int’l L.J.1 (1996); Robert O. Weiner, Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties, 26 St. Mary’s L.J. 857 (1995); cf. Antonio F. Perez, The Perils of Pinochet: Problems for Transitional Justice and a Supranational Governance Solution, 28 Denv. J. Int’l L. & Pol’y 175 (2000) (discussing the difficulties surrounding potential amnesty in Cuba while trying to encourage a transition towards a more democratic future).

        [2].   See Gene Shackman et al., Brief Review of Trends in Political Change: Freedom and Conflict, Int’l Consortium Advancement Acad. Publication (Oct. 2004), http://gsociology.icaap.org/report/polsum.html.  By 2000, the majority of the world population lived in democratic-styled countries, and there was a dramatic growth in democracy.  Id. at tbl.1, fig.1.  When China is removed from calculations, almost eighty-five percent of the population lives in democratic nations.  SeeEconomist Intelligence Unit, Democracy Index 2010: Democracy in Retreat 2 (2010), available at http://graphics.eiu.com
/PDF/Democracy_Index_2010_web.pdf.  While there was backsliding in democracies since 2008, the majority of the world still lives in a democracy of some form. Id. at 1.

        [3].   Appendix, in Prosecuting Heads of State 295–304 (Ellen L. Lutz & Caitlin Reiger eds., 2009).  Since 1990, sixty-seven former heads of state have been legitimately prosecuted for serious human rights abuses or economic crimes in domestic courts.  Id.  In 2009, ex-President Alberto Fujimori of Peru was convicted and sentenced to twenty-five years in prison for human rights abuses committed while in office.  Fujimori Gets Lengthy Jail Time, BBC (Apr. 7, 2009, 5:55 PM), http://news.bbc.co.uk/2/hi/americas/7986951.stm.  Former President Hosni Mubarak of Egypt was sentenced to life after being “convicted of complicity in the killings of some 90 protestors.”  Hamza Hendawi, Hosni Mubarak, Egypt’s Ousted President, Sentenced to Life in Prison, Huffington Post (June 2, 2012, 8:00 PM), http://www.huffingtonpost.com/2012/06/02/hosni
-mubarak-egypts-oust_n_1564603.html.  Moreover, former Tunisian President Zine El Abidine Ben Ali was tried in absentia in 2011.  Bouazza Ben Bouazza, Zine El Abidine Ben Ali, Ex-Tunisia President, Gets 20 Years in Absentia, Huffington Post (June 13, 2012, 4:40 PM), http://www.huffingtonpost.com
/2012/06/13/zine-el-abidine-ben-ali-20-years-In-absentia_n_1592983.html.

        [4].   Shackman et al., supra note 2; see also Int’l Inst. for Democracy & Electoral Assistance, Democracy and Deep-Rooted Conflict: Options for Negotiators 1 (Peter Harris & Ben Reilly eds., 1998), available at http://www.idea.int/publications/democracy_and_deep_rooted_conflict/upload
/ddrc_full_en.pdf (stating that between 1989 and 1996, most major conflicts have not occurred between states, but instead have been confined within states).

        [5].   See Paul R. Williams & Michael P. Scharf, Peace with Justice?: War Crimes and Accountability in the Former Yugoslavia 24–29 (2002) (discussing that the three approaches for peace building to end conflict are accommodation, economic inducement, and use of force).  Accommodation ends conflict by meeting the interests and objectives of adversarial parties, often by appeasement, which excludes justice via amnesty in exchange for a solution to conflict.  Id. at 24–26.  Economic inducement seeks to modify a party’s stance through economic incentives or sanctions.  Id. at 26.  Use of force is characterized by military action to affect the behavior of another State or group.  Id. at 27.

        [6].   Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, July 7, 1999 [hereinafter Lomé

Peace Accord], available at http://www.sierra-leone.org/lomeaccord.html.

        [7].   Sarah Williams, Amnesties in International Law: The Experience of the Special Court for Sierra Leone, 5 Hum. Rts. L. Rev. 271, 275–76 (2005).

        [8].   Statute of the Special Court for Sierra Leone, art. 10, Jan. 16, 2002, 2178 U.N.T.S. 145 available at http://www.sc-sl.org/LinkClick.aspx?fileticket
=uClnd1MJeEw%3D& (“An amnesty 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.”).  Articles 2 through 4 refer to Crimes Against Humanity, Violations of Article 3 Common to the Geneva Convention and of Additional Protocol II, and Other Serious Violations of International Humanitarian Law.  Id. arts. 2–4.

        [9].   Andreas O’Shea, Amnesty for Crime in International Law and Practice 22, 39 (2002); ‘Amnesty’ for Uganda Rebel Chief, BBC (July 4, 2006, 5:38 PM), http://news.bbc.co.uk/2/hi/africa/5147882.stm.  The amnesty agreement would preclude State investigations into crimes covered by the amnesty, which could possibly cover acts such as rape and pillage.  O’Shea, supra, at 41.  By 2011, over 12,000 former Lord’s Resistance Army members had been granted amnesty under the law; however there is uncertainty regarding the constitutionality of the amnesty law.  Simon Jennings, Ugandan War Crimes Trial Hangs in Balance, ReliefWeb (Aug. 25, 2011), http://reliefweb.int/report/uganda/ugandan-war-crimes-trial-hangs-balance.

      [10].   Manisuli Ssenyonjo, Accountability of Non-State Actors in Uganda for War Crimes and Human Rights Violations: Between Amnesty and the International Criminal Court, 3 J. Conflict & Security L. 405, 407–08 (2005).

      [11].   ‘Amnesty’ for Uganda Rebel Chief, supra note 9.

      [12].   Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 216–17 (2008).

      [13].   For the purposes of this Article, “internal conflict” will be defined as any civil war, internal armed conflict, rebellion, insurgency, coup attempt, tribal warfare, territorial struggle, action to create an autonomous region within a state, or other organized action rising to a similar level that seriously threatens the State.  For a treaty-based definition of internal “armed conflict,” see infra note 18.

      [14].   This Article agrees with the principle that leaders of prior authoritarian regimes responsible for human rights abuses should be prosecuted; that topic has been thoroughly discussed.  This Article will only discuss amnesty as it relates to resolution of internal conflict and civil wars, particularly for opposition groups that have committed serious offenses.

      [15].   See infra notes 254–57 and accompanying text.

      [16].   See William W. Burke-White, Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation, 42 Harv. Int’l L.J.467, 510–12 (2001) (discussing the validity of the amnesty laws of the Federation of Bosnia and Herzegovina, the Republika of Srpska, and Croatia, and indicating that these agreements comply with international obligations).

      [17].   See infra notes 24–26 and accompanying text.

      [18].   Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 6(5), June 8, 1977, 1125 U.N.T.S. 609.  To be internal “armed conflict,” the situation must involve an action greater than internal tension, riots, or isolated and sporadic acts of violence.  See id. art. 1.

      [19].   Mahnoush H. Arsanjani, The International Criminal Court and National Amnesty Laws, 93 Am. Soc’y Int’l L. Proc. 65, 65 (1999) (indicating that the purpose of Article 6(5) in Protocol II was to encourage “gestures of reconciliation,” which can be accomplished through amnesty); Naomi Roht-Arriaza, Special Problems of a Duty to Prosecute: Derogation, Amnesties, Statutes of Limitation, and Superior Orders, in Impunity and Human Rights in International Law and Practice 57, 59 (Naomi Roht-Arriaza ed., 1995) (reflecting the desirability of integrating past rebels or insurgents into normal national life).  Article 6(5) of Protocol II is sufficiently broad enough to encourage amnesty for both insurgents and State officials or agents.  Id.; cf. Cassel, supra note 1, at 218 (explaining that combatants in international conflicts receive significant protection against punishment for participating in the hostilities and that Protocol II acts to encourage amnesty for noninternational combatants who do not receive the same legal protection).

      [20].   See Christine Bell, Peace Agreements and Human Rights 263 (2000) (indicating that Protocol II does not impose an obligation to prosecute and scholars are divided on whether it provides a basis for individual criminal responsibility).  The International Committee of the Red Cross (“ICRC”) has interpreted Article 6(5) narrowly and stated that is does not apply to amnesties for violations of international humanitarian law, but the ICRC is a nonlegal entity, and the wording of Protocol II is still unclear.  Id. at 265.

      [21].   Roht-Arriaza, supra note 19 (discussing the failure of the Soviet bloc States to gain approval for a proposal that would have prevented Protocol II from circumventing prosecution for crimes against humanity).

      [22].   See Michael P. Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal Court, 32 Cornell Int’l L.J. 507, 526 (1999).

      [23].   Burke-White, supra note 16, at 482 (indicating that blanket amnesties, which are usually broad or all encompassing and traditionally decreed by outgoing dictators for self protection, offer general protection against civil and criminal charges and often do not differentiate between common crimes, political crimes, and international crimes).  International legal entities have rejected blanket amnesties, and in recent cases, even domestic courts have declined to enforce these amnesties. Id. at 522; Cassel, supra note 1, at 215 (commenting on the Inter-American Commission’s declaration that self-amnesties are “legal nullities”); Christopher C. Joyner,Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability, 26 Denv. J. Int’l L. & Pol’y 591, 616–17 (1998) (stating that only government policy makers may authorize impunity); Roht-Arriaza, supra note 19, at 60–62 (discussing the Inter-American Commission on Human Rights rulings concerning Argentina, El Salvador, and Uruguay that continuously found the self-amnesties decreed by Latin American dictators to not be legally enforceable).  “Where amnesties are granted through non-legitimate means . . . they may legitimately be denied legal force due to their irregular means of promulgation . . . .”  Id. at 58; see also Kristin Henrard, The Viability of National Amnesties in View of the Increasing Recognition of Individual Criminal Responsibility at International Law, 8 Mich. St. U.-DCL J. Int’l L. 595, 641–42 (1999) (stating that blanket amnesties are “completely unacceptable and of no legal value”).

      [24].   Roman Boed, The Effect of a Domestic Amnesty on the Ability of Foreign States to Prosecute Alleged Perpetrators of Serious Human Rights Violations, 33 Cornell Int’l L.J. 297, 323 (2000) (“Amnesties granted by States in violation of their conventional duties cannot be considered valid on the international plane and cannot have any effect on the prerogatives of other States.”); Michael Scharf, The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes, 59 Law & Contemp. Probs. 41, 43 (1996) (stating that Article 27 of the Vienna Convention on the Law of Treaties prevents States from using internal law as a justification for failing to perform a duty in a treaty).  Scharf also notes that the duty to prosecute under the Geneva Conventions is strictly limited to international armed conflict.  Id. at 44.  Article 2 in each of the four Geneva Conventions states that international armed conflict is declared war or other armed conflict that arises between two or more States.  Id.; e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 2, Aug. 12, 1949, 75 U.N.T.S. 31.

      [25].   Convention on the Prevention and Punishment of the Crime of Genocide, Jan. 12, 1951, 78 U.N.T.S. 277.  The Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) includes specific provisions that “persons committing genocide . . . shall be punished” and persons “shall be tried by a competent tribunal of the State in the territory of which the act was committed.”  Id. arts. 4, 5; see also Restatement (Third) of Foreign Relations Law § 702 cmt. d (1986) (“A state violates customary law if it practices or encourages genocide, fails to make genocide a crime or to punish persons guilty of it, or otherwise condones genocide.”); Orentlicher, Settling Accounts, supra note 1, at 2562–64 (discussing that almost the entire Genocide Convention is designed to fulfill the purpose of preventing genocide through punishment of the crime and thus any amnesty precluding either domestic or international prosecution is void).

      [26].   Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 19, 1984, 1465 U.N.T.S. 85, modified, 24 I.L.M. 535 (entered into force June 26, 1987).  The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”) expressly requires parties to extradite someone if the State does not “submit the case to its competent authorities for the purpose of prosecution.”  Id. art. 7; see alsoBoed, supra note 24, at 311–12, 320–21 (stating that the wording of the Torture Convention requires States to prosecute violations or extradite under the principle ofaut dedere aut judicare (“extradite or prosecute”)); Scharf, supra note 24, at 46–47 (indicating that even though the wording of the Torture Convention is slightly different than the Genocide Convention, it still indicates a duty to prosecute); Gwen K. Young, Comment, Amnesty and Accountability, 35 U.C. Davis L. Rev. 427, 450 (2002) (discussing that the European Court for Human Rights ruled that amnesties do not prevent criminal proceedings against those who commit torture).  The duty to prosecute is only statutory and not from customary law due to lack of State practice, but there have been trends such as the Committee Against Torture’s 1990 statement that the Torture Convention “should oblige” all States to prosecute, which may indicate the principle is rooted in custom.  Scharf, supra note 24, at 47–48;cf. Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law 118–19 (2d. ed. 2001) (discussing customary law and torture and indicating that the exclusion of amnesty for States party to the convention extends not only to actions by the government, but also to any group acting in an official capacity, including guerrilla groups and insurgent rebels).

      [27].   Restatement (Third) of Foreign Relations Law § 102(1) (“A rule of international law is one that has been accepted as such by the international community of states (a) in the form of customary law; (b) by international agreement; or (c) by derivation from general principles common to the major systems of the world.”).

      [28].   See Boed, supra note 24, at 314 (indicating that a duty must be based in custom and that there is disagreement if custom exists).

      [29].   International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171.

      [30].   American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123.

      [31].   Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221.

      [32].   E.g., Orentlicher, Settling Accounts, supra note 1, at 2568 (“[P]rosecution and punishment are the most effective—and therefore only adequate—means of ensuring a narrow class of rights that merit special protection.”); Roht-Arriaza, supra note 1, at 474–83 (noting that the ICCPR, American Convention, and European Convention recognize a right to a remedy, which includes a duty to prosecute); cf. Carla Edelenbos, Human Rights Violations: A Duty to Prosecute?, 7 Leiden J. Int’l L. 5, 15 (1994) (arguing that the treaties, declarations, and practices viewed together show that the international community accepts the obligation to prosecute).

      [33].   See Orentlicher, Settling Accounts, supra note 1, at 2551–52, 2568 (noting that the Conventions require States to respect the enumerated rights and guarantee that people are able to exercise those rights); Roht-Arriaza, supra note 1, at 474–83 (discussing the Conventions’ requirement to provide a remedy and arguing that the treaties include investigation and prosecution as components of a remedy).

      [34].   E.g., Orentlicher, Settling Accounts, supra note 1, at 2568 (arguing that authoritative interpretations of these treaties suggest that a party to the treaties fails its duties if it does not investigate the violations and bring to justice those responsible); Roht-Arriaza, supra note 1, at 467–68 (arguing that an obligation to “ensure” rights creates an affirmative obligation to prosecute).

      [35].   E.g., Roht-Arriaza, supra note 1, at 488. (discussing that a right to a remedy is a common feature of human rights instruments).  Roht-Arriaza argues that since a treaty obligation is nonderogable, the rights enumerated in the treaty are nonderogable, and thus amnesty preventing accountability breaches the treaty.  Id.

      [36].   Orentlicher, Settling Accounts, supra note 1, at 2571–76 (discussing declarations concerning torture in Zaire, extralegal executions in Suriname, and disappearances in Uruguay, with the HCR declaring that steps must be taken to provide justice and remedies).  Even though the drafters of the ICCPR never considered requiring parties to punish violations, nothing in the history of the Convention is inconsistent with a duty to prosecute.  Id. at 2569–71.

      [37].   Id. at 2576–79 (discussing the judgment from the Inter-American Court of Human Rights in the Velasquez Rodriguez case, which suggested a duty to punish all violations of the American Convention).  Orentlicher also notes that the Chairman of the Inter-American Commission on Human Rights strongly opposed amnesty that prevents prosecution of serious human rights abuses.  Id. at 2579; see also Roht-Arriaza, supra note 1, at 469–70 (discussing the Velasquez Rodriguezcase and contending that the holding implies a duty to prevent, investigate, and punish any violation of the American Convention in addition to restoring rights and paying compensation).  See generally, Naomi Roht-Arriaza & Lauren Gibson, The Developing Jurisprudence on Amnesty, 20 Hum. Rts. Q. 843 (1998) (providing a general overview of Latin American amnesty laws and challenges to them in various courts).

      [38].   Orentlicher, Settling Accounts, supra note 1, at 2581 (indicating that the European Court indirectly affirmed the principle that punishment is necessary to ensure the rights in the European Convention).

      [39].   E.g., Emily W. Schabacker, Reconciliation or Justice and Ashes: Amnesty Commissions and the Duty to Punish Human Rights Offenses, 12 N.Y. Int’l L. Rev. 1, 25 (1999) (arguing the language from the HRC does not indicate an absolute duty); Scharf, supra note 1, at 26 (rejecting the authoritative interpretation rationale based on statements by the HRC).

      [40].   Scharf, supra note 1, at 26 (noting that the HRC is only an administrative body to monitor compliance).

      [41].   Id.

      [42].   See id. at 26–27 (contending the parties to the treaty relied upon a certain meaning when they ratified the ICCPR).

      [43].   See, e.g., id. at 27 (discussing that the HRC left the door open to alternative measures).  In 1992, the HRC said amnesties are “generally incompatible” with the ICCPR, indicating that some amnesties are acceptable.  Id.; Schabacker, supra note 39.

      [44].   E.g., Scharf, supra note 1, at 27–28 (“The court . . . did not direct the Honduran government to institute criminal proceedings against those responsible for the disappearance of Manfredo Velásquez . . . . [Nor did it] specifically refer to criminal prosecutions as opposed to other forms of disciplinary action or punishment.”).

      [45].   See Scharf, supra note 24, at 51–52 (indicating that it could involve a different form of disciplinary action); cf. Schabacker, supra note 39, at 31 (citations omitted) (arguing that even though academics cite Velasquez Rodriguez as an important case, it only applies to Latin America and has not significantly influenced other international courts since the decision).

      [46].   Boed, supra note 24, at 314; see also M. Cherif Bassiouni, “Crimes Against Humanity”: The Need for a Specialized Convention, 31 Colum. J. Transnat’l L. 457, 473–75 (1994) (describing the failure of legal instruments to indicate rules of enforcement).

      [47].   Restatement (Third) of Foreign Relations Law § 102(2) & cmt. c (1986).

      [48].   Id. § 102 cmt. b.

      [49].   E.g., Bassiouni, supra note 46, at 480–81 (relying upon conventional law and U.N. General Assembly resolutions); Edelenbos, supra note 32 (relying upon treaties and the practice of prosecuting crimes against humanity committed during World War II); Orentlicher, Settling Accounts, supra note 1, at 2583–86 (citing treaties and U.N. resolutions reaffirming the Nuremberg precedents as an indication of a norm); Roht-Arriaza, supra note 1, at 489 (examining the combination of treaty law, judicial decisions, U.N. resolutions, and the law of State responsibility of injury to aliens as proof of a customary duty to prosecute).

      [50].   See, e.g., Roht-Arriaza, supra note 1, at 490 (stating both the International Court of Justice and the U.S. Supreme Court held that treaties can create binding obligations on nonparties if they indicate customary law).  Treaty provisions can become customary rules of law if participation is widespread and representative of the international community.  Id. at 490–91; cf. Orentlicher, Settling Accounts, supra note 1, at 2593 n.250, 2594 n.252 (discussing that although the Convention on the Non-Applicability of Statutory Limitations to Certain War Crimes and Crimes Against Humanity did not receive widespread support due to the inclusion of the crime of apartheid and the fact that it did not explicitly require parties to prosecute, it was based upon the perception that international law already required punishment).

      [51].   G.A. Res. 2840 (XXVI), U.N. GAOR, 26th Sess., Supp. No. 29, U.N. Doc. A/8429, ¶ 1, (Dec. 18, 1971).

      [52].   G.A. Res. 3074 (XXVIII), U.N. GAOR, 28th Sess., Supp. No. 30, U.N. Doc. A/9030, ¶ 1 (Dec. 3, 1973).

      [53].   E.g., Bassiouni, supra note 46, at 479–81 (listing legal instruments indicating that a duty to prosecute emerged into customary international law); Edelenbos, supra note 32, at 14–15 (discussing the 1989 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions provision requiring people accused of these acts to be brought to justice); Orentlicher, Settling Accounts, supra note 1, at 2593 & n.251 (discussing the importance of the 1973 resolution and providing a list of other U.N. resolutions requiring States to ensure prosecution and punishment of crimes against humanity); Roht-Arriaza,supra note 1, at 498 (citing the U.N.’s 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power as a resolution calling on all member States to prosecute those guilty of human rights crimes).

      [54].   Boed, supra note 24, at 315 (citing G.A. Res. 2840, supra note 51).

      [55].   G.A. Res. 3074, supra note 52.

      [56].   See Roht-Arriaza, supra note 1, at 492, 496 (citing Restatement (Third) of Foreign Relations Law § 102 cmt. c (1986)) (referencing the governments of Uruguay and Chile as examples of nations that tried to provide diplomatic representations of compliance with international law even though they failed in reality to prosecute).

      [57].   Id. (contending that, when States have created amnesty laws, they have justified them as required by exigent circumstances that trump their obligations to investigate or prosecute).

      [58].   Id. at 496–97.

      [59].   See, e.g., Boed, supra note 24, at 315; Scharf, supra note 1, at 35.  There is an unsettled debate concerning the legal weight of General Assembly resolutions and their effect on international customary law.  Most commentators do not suggest that General Assembly resolutions create binding norms of international law but instead suggest that they may possibly be evidence of opinio jurisE.g., id. (recognizing a State’s obligation to prosecute arising from U.N. General Assembly resolutions).  The political nature of the U.N., and the knowledge that the resolutions are not binding, reduces even the capacity to evaluate the strength of opinio juris shown in the resolutions.  Id. at 37; see also Christoph Schreuer, Recommendations and the Traditional Sources of Law, 20 German Y.B. Int’l L. 103, 107–09 (1977); Stephen M. Schwebel, The Effect of Resolutions of the U.N. General Assembly on Customary International Law, 73 Proc. Am. Soc’y Int’l L. 301, 301–03 (1979).

      [60].   E.g., Scharf, supra note 1, at 35 n.242 (citing G.A. Res. 3074, supra note 52) (noting that the resolution was “adopted by a vote of 94 in favor to none against with 29 abstentions”).

      [61].   G.A. Res. 2312 (XXII), U.N. GAOR, 22d Sess., Supp. No. 16, U.N. Doc A/6716, at 81 (Dec. 14, 1967).

      [62].   Declaration of Territorial Asylum, 1967 U.N.Y.B. 758, 759, U.N. Sales No. E.68.1.1.

      [63].   Scharf, supra note 22, at 521.

      [64].   See, e.g., Schabacker, supra note 39, at 39; Scharf, supra note 1, at 35–36.

      [65].   Scharf, supra note 1, at 36–37 (indicating that the U.N. blocked prosecutions of the Khmer Rouge in Cambodia, encouraged Nelson Mandela to grant unconditional amnesty for apartheid in South Africa, and helped negotiate the much criticized Haitian amnesty agreement); cf. Schabacker, supra note 39, at 38–39 (stating that State practice is not uniform since nations have employed wide variations of truth commissions and amnesty provisions).  Schabacker notes nonprosecution is so common and widespread throughout the world that the U.N. Commissioner for Human Rights convened a special body out of concern.  Id. at 39.

      [66].   See Scharf, supra note 1, at 37.

      [67].   Kareem Fahim, Power Ceded, Yet President of Yemen Declares Amnesty, N.Y. Times, Nov. 28, 2011, at A11.

      [68].   Arab Spring Justice – but a Free Pass for Yemen’s Saleh, Christian Sci. Monitor (Jan. 9, 2012), http://www.csmonitor.com/Commentary/the-monitors
-view/2012/0109/Arab-Spring-justice-but-a-free-pass-for-Yemen-s-Saleh.

      [69].   E.g., Edelenbos, supra note 32, at 21 (discussing that invoking the interests of national reconciliation or the instability of the democratic process indicates an emerging opinio juris); Roht-Arriaza, supra note 1, at 495–96 (noting that, in humanitarian and human rights law, verbal declarations by the government and consent to international instruments are better indicators of State practice and opinio juris).  The rule comes from a Nicaragua case in the International Court of Justice where the court stated that, when a nation acts in a manner inconsistent with a recognized rule but justifies the action via an exception within the rule, the nation confirms, rather than undermines, the rule.  Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 98 (June 27).

      [70].   See, e.g., Scharf, supra note 1, at 38 (arguing that most States never mention the existence of a duty to prosecute and that the existence of exceptions contained within this duty demonstrate that it is not absolute).

      [71].   Rome Statute of the International Criminal Court, July 17, 1998, 37 I.L.M. 999 [hereinafter Rome Statute] (entered into force July 1, 2002).

      [72].   Boed, supra note 24, at 316 & n.114 (quoting Rome Statute, supra note 71, pmbl.).

      [73].   Id.

      [74].   E.g., Jean Graven, Les Crimes Contre L’Humanité, in 76 Recueil Des Cours 427, 433 (1950).

      [75].   Hague Convention IV – Laws and Customs of War on Land, pmbl., Oct. 18, 1907, 36 Stat. 2277 (“[T]he inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.” (emphasis added)); see M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 Harv. Hum. Rts. J. 11, 16–17 (1997) (discussing the impact and limitations of the Martens Clause).

      [76].   Bassiouni, supra note 75, at 14–17 (indicating that the principle was applied by the Commission on the Responsibilities of the Authors of War and Enforcement of Penalties in its investigations into violations of the laws and customs of war).

      [77].   Id. at 17 (discussing the treaty signed at the end of World War I).  The Treaty of Sevres was never ratified and none of the prosecutorial provisions ever enacted.  Id.; see also Phyllis Hwang, Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court, 22 Fordham Int’l L.J. 457, 459 (1998) (noting that all the later treaties concluding World War I declined to prosecute crimes against humanity).

      [78].   Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Charter of the International Military Tribunal, art. 6(c), Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279, 288 [hereinafter European Axis Agreement].  See generally Beth Van Schaack, The Definition of Crimes Against Humanity: Resolving the Incoherence, 37 Colum. J. Transnat’l L. 787, 798–807 (1999) (providing a history of the development and application of crimes against humanity as an offense under the jurisdiction of the IMT Charter).

      [79].   European Axis Agreement, supra note 78.

      [80].   Id.

      [81].   See Ratner & Abrams, supra note 26, at 47 (indicating that this clause was a serious compromise between the Allied powers).

      [82].   International Military Tribunal for the Far East, art. 5(c), Jan. 19, 1946, amended Apr. 26, 1946, T.I.A.S. No. 1589.

      [83].   Control Council Law No. 10, art. II(c), May 8, 1945, reprinted in M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 33–34 (2d ed., 1999) (indicating that Control Council Law No. 10 provided for prosecution of crimes against humanity by the occupying powers within their respective zones).

      [84].   The International Military Tribunal for the Far East (“IMTFE”) omitted prosecution based upon religious grounds since it was not necessary and removed the phrase “against any civilian population” to expand the class of victims.  Bassiouni, supra note 75, at 37.  Article II of Control Council Law No. 10 expanded on the list of crimes enumerated in the IMT and the IMTFE to include imprisonment, torture, and rape, and also omitted the nexus of occurring “before or during the war.”  Id. at 38.

      [85].   G.A. Res. 174(II), U.N. GAOR, 2d Sess., U.N. Doc. A/519, at 105 (Nov. 21, 1947) (establishing the ILC); see also Bassiouni, supra note 83, at 179–93 (describing the various ILC attempts to codify crimes against humanity from 1950 to 1996 and indicating the variations of each text); Matthew Lippman, Crimes Against Humanity, 17 B.C. Third World L.J. 171, 228–32, 260–64 (1997) (providing a history of the Draft Code and discussing developments since the 1950s).  The attempts to codify “crimes against humanity” were efforts to affirm and clarify the offenses defined in the IMT Nuremberg Charter that only applied to the defeated nations of World War II.  Bassiouni, supra note 83, at 178.

      [86].   Draft Code of Offences against the Peace and Security of Mankind, U.N. GAOR, 9th Sess., U.N. Doc. A/12693 (1951).

      [87].   Id. art. 2, para. 11; see Lippman, supra note 85, at 232 (discussing how the Draft Code was a substantial departure from the Nuremberg Principles of the IMT by codifying offenses that posed a threat to the security of the international community simply by being severe atrocities against large numbers of people).

      [88].   Bassiouni, supra note 83, at 186 (contrasting 1954 Draft Code Article 2(11) with IMT Charter Article 6(c)).  But see Lippman, supra note 85, at 231–32 (discussing that the removal of the requirement that the act must be committed in connection with another offense was very controversial because some feared the definition would extend international jurisdiction into purely domestic affairs of States).

      [89].   See Hwang, supra note 77, at 469–73 (providing an overview of the prosecutions of Klaus Barbie, Paul Touvier, and Imre Finta).  For France’s prosecution of Klaus Barbie, former head of the Gestapo in Lyon during World War II, crimes against humanity were defined as acts “in the name of a State practicing a hegemonic political ideology, [which] have been committed in a systematic fashion, not only against persons because they belong to a racial or religious group, but also against the adversaries of this [State] policy, whatever the form of their opposition.”  Id. at 470 (second alteration in original) (quoting Leila Sadat Wexler, The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again, 32 Colum. J. Transnat’l L. 289, 339 (1994)).  For Touvier, the French Court of Appeals established three elements for crimes against humanity: the systematic nature of the crimes, participation in a common plan, and intention to carry out a State policy of political hegemony.  Id. at 472.  In the trial of Finta for atrocities committed in Hungary in 1944, the Supreme Court of Canada applied section 7(3.76) of the Canadian Criminal Code, which defined crimes against humanity as “murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons . . . .”  Id. at 472 n.106 (quoting Criminal Code, R.S.C. 1985, c. C-46, s. 7(3.76) (Can.) (repealed 2000)).

      [90].   S.C. Res. 955, ¶ 1, U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute]; S.C. Res. 827,¶ 2, U.N. Doc. S/RES/827 (May 25, 1993).

      [91].   U.N. Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, annex, U.N. Doc. S/25704 (May 3, 1993) [hereinafter ICTY Statute]; see S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993), amended S.C. Res. 1411, U.N. Doc. S/RES/1411 (May 17, 2002) (adopting the Statute of the ICTY).

      [92].   ICTR Statute, supra note 90, annex.

      [93].   Bassiouni, supra note 83, at 194–96 (giving a textual comparison between the statutes and indicating that the differences emerged because Yugoslavia involved an international conflict while Rwanda’s was of a purely internal nature).  See generally Guénaël Mettraux, Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, 43 Harv. Int’l L.J. 237 (2002) (discussing the meaning of the various elements of crimes against humanity as demonstrated in the judgments of the two tribunals); Van Schaack, supra note 78, at 826–40 (discussing the adjudication of and commentary on the definition of crimes against humanity by the ad hoc tribunals).

      [94].   ICTY Statute, supra note 91, art. 5 (“The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflicts, whether international or internal in character, and directed against any civilian population . . . .”).

      [95].   ICTR Statute, supra note 90, art. 3 (“The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds . . . .”); see alsoDavid J. Scheffer, War Crimes and Crimes Against Humanity, 11 Pace Int’l L. Rev. 319, 328–29 (1999) (indicating that in the adjudication of the ICTR, the Akayesudecision created new precedent by establishing that rape can stand on its own as a crime against humanity).

      [96].   Orentlicher, Settling Accounts, supra note 1, at 2585 (indicating that the exact meaning of crimes against humanity is “shrouded in ambiguity”); Darryl Robinson, Defining “Crimes Against Humanity” at the Rome Conference, 93 Am. J. Int’l L. 43, 43 n.4 (1999) (discussing the difficulty in determining a definition at the Rome Conference due to past inconsistencies); Van Schaak, supra note 78, at 792 (stating that the definition of crimes against humanity has often been incoherent).

      [97].   Boed, supra note 24, at 302–03; Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 Tex. L. Rev. 785, 791–800 (1988).

      [98].   Randall, supra note 97, at 800 (contrasting the international community’s perspective and relevant treaty law on piracy and slave trading).

      [99].   See Bassiouni, supra note 83, at 227–28 (differentiating universal jurisdiction from all other types of jurisdiction).  The other commonly acknowledged bases for jurisdiction are territorial, active personality or nationality, passive personality, and protective.  Id. at 227; see also Hwang, supra note 77, at 469 nn.79–81 (defining the different bases of jurisdiction).

    [100].   See Bassiouni, supra note 83, at 228–29 (stating there are certain crimes so serious in their nature that those who commit them are hostis humani generis(“an enemy of all mankind”) and thus affect the interests of all States); see also CrimC (Jer) 40/61 Attorney General of Israel v. Eichmann, 45 PM 3, Part II, ¶ 12 (1961) (“The abhorrent crimes defined in this Law are crimes not under Israeli law alone.  These crimes which offended the whole of mankind and shocked the conscience of nations are grave offenses against the law of nations itself (‘delicti juris gentium’).  Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, in the absence of an International Court, the international law is in need of the judicial and legislative authorities of every country, to give effect to its penal injunctions and to bring criminals to trial.  The jurisdiction to try crimes under international law is universal.”).

    [101].   See M. Cheriff Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81, 88(2001) (equating modern principles of universal jurisdiction to the ancient Roman concept of actio popularis—the community acting for the good of the whole).

    [102].   See Boed, supra note 24, at 299–300 (explaining the principle of erga omnes, which entails States having an obligation not to violate basic human rights).

    [103].   See id. at 301–02 (discussing that erga omnes obligations do not automatically establish universal jurisdiction for various crimes).

    [104].   See Bassiouni, supra note 83, at 232–34 (examining conventional laws that clearly state principles of universal jurisdiction, such as the Geneva Conventions, the Apartheid Convention, the Convention on the Law of the Sea, the Genocide Convention, and the Hostages Convention); Bassiouni, supra note 101, at 119 (indicating that scholarship generally supports the customary law proposition and thus the author continues to evaluate State practice for a determination of customs toward universal jurisdiction); see also Scharf, supra note 1, at 34 (noting that there is no treaty for crimes against humanity that includes the principle of aut dedere au judicare (“extradite or prosecute”)).

    [105].   E.g., Boed, supra note 24, at 308 (indicating that a State’s exercise of jurisdiction for crimes against humanity would likely be valid even when the violation of law is committed by foreign nationals abroad and the State lacked any nexus to the crime); L.C. Green, Low-Intensity Conflict and the Law, 3 ILSA J. Int’l & Comp. L. 493, 516 (1997) (“[I]t may probably be said that it is now well established that crimes committed during a low-intensity or non-international armed conflict which amount to crimes against humanity are . . . subject to universal jurisdiction . . . .”); Theodor Meron, International Criminalization of Internal Atrocities, 89 Am. J. Int’l L. 554, 569 (1995) (“It is now widely accepted that crimes against humanity . . . are subject to universal jurisdiction.”); Orentlicher,Cambodian Killing Fields, supra note 1, at 705 (“International legal responsibility for some offenses is reflected in the fact that genocide, certain war crimes, and crimes against humanity are subject to universal jurisdiction.”).  But see Bassiouni, supra note 101, at 136 (contending that the fact that a very small number of States have enacted legislation fails to prove there is customary law).

    [106].   Bassiouni, supra note 101, at 83.  Bassiouni later stated that national legislation and judicial practice is currently insufficient to establish an international customary practice for universal jurisdiction.  Id. at 150.

    [107].   See Scharf, supra note 1, at 34–35 (discussing that domestic courts of all nations could punish violators if enabled).

    [108].   See Restatement (Third) of Foreign Relations Law § 404 (1986) (“A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern . . . .”).

    [109].   M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Practice 660–63 (2011).

    [110].   See supra notes 24–26 and accompanying text; see also O’Shea, supra note 9, at 197–98 (noting that a customary duty for States to prosecute would mean that all States are bound to this obligation and therefore have no other option except for the alternative of extradition).

    [111].   An exception is the crime of torture, which is an enumerated act within crimes against humanity and is also subject to its own convention, which appears to prohibit amnesty.  See sources cited supra note 26.

    [112].   See Garth Meintjes, Domestic Amnesties and International Accountability, in International Crimes, Peace, and Human Rights: The Role of the International Criminal Court 83, 86 (Dinah Shelton ed., 2000) (discussing that international law would not invalidate a domestic amnesty, but conversely domestic amnesty would not bar international criminal liability).

    [113].   This situation would apply to States that employ a “dualist” approach to international law.  Id.  The confusion with crimes against humanity is contrasted with the crimes of genocide or torture, which, due to treaty and customary obligations to prosecute, render domestic amnesty invalid and cannot preclude prosecution either domestically or internationally.  Id. at 87; see also Naomi Roht-Arriaza, Combating Impunity: Some Thoughts on the Way Forward, 59 Law & Contemp. Probs. 93, 100 & n.21 (1996) (suggesting that domestic amnesty would not preclude international prosecution and citing the 1997 Spanish arrest warrant for an Argentine general despite domestic amnesty).

    [114].   See Robinson, supra note 96, at 43 (indicating that this was the first time the definition of crimes against humanity was not imposed on a population by either the victors in a war or by Security Council mandate).  The definition was reached by consensus after negotiations involving 160 States.  Id.

    [115].   See Rep. of the Int’l Law Comm’n, 48th Sess, May 6–July 26, 1996, art. 18, cmt. 2, U.N. Doc. A/51/10; GAOR, 51st Sess., Supp. No. 10 (1996) (incorporating the definition of crimes against humanity from the IMT Charter with later developments in international law).

    [116].   Rome Statute, supra note 71, art. 7(1).

    [117].   Id. art. 7(2); see also Rep. of the Preparatory Comm. on the Establishment of an Int’l Criminal Court (vol. I), para. 86, U.N. Doc. A/51/22; GAOR, 51st Sess., Supp. No. 22 (1996) [hereinafter Rep. of the Preparatory Comm. (vol. I)] (discussing that “civilian population” is commonly used to refer to situations involving armed conflict in international humanitarian law, but in the current context that distinction is unnecessary since the statute for crimes against humanity applies to all citizens of a State regardless of the existence of armed conflict).

    [118].   Rape, murder, assault, deprivation of physical liberty/false imprisonment, persecution, etc., as defined by municipal statutes, are only subject to the rules governing internal law.  See generally Van Schaack, supra note 78 (investigating elements to distinguish crimes against humanity from domestic crimes).

    [119].   See Rep. of the Preparatory Comm. (vol. I), supra note 117, para. 84 (focusing primarily on the criteria in Article 3 of the ICTR Statute).

    [120].   ICTR Statute, supra note 90, art. 33 (“The International Tribunal for Rwanda shall have the power to prosecute persons responsible for . . . attack[s] against any civilian population on national, political, ethnic, racial or religious grounds . . . .”).

    [121].   Rep. of the Preparatory Comm. (vol. I), supra note 117, para. 87.

    [122].   Id. paras. 88–89; see also Robinson, supra note 96, at 45–46 (noting that a minority of delegations felt that crimes against humanity could only be committed in an armed conflict, but a majority of delegations believed that this restriction would be inconsistent with post-IMT developments); cf. Hwang, supra note 77, at 489 (stating that the failure to include a nexus to armed conflict as an element created concern about how to distinguish domestic crimes from those that are serious crimes of international concern).

    [123].   See Preparatory Comm’n for the Int’l Criminal Court, Finalized Draft Text of the Elements of Crimes, art. 7, U.N. Doc. PCNICC/2000/1/Add.2 (2000) [hereinafter Elements of Crimes Finalized Draft].

    [124].   Id.

    [125].   Id.  This may be an application of the principle espoused by the Chamber of the ICTY, which only required the violator to have “knowledge, either actual or constructive, that these acts were occurring on a widespread or systematic basis.”  Prosecutor v. Tadic, Case No. IT-94-1-T, Trial Chamber Opinion and Judgment, ¶ 659 (Int’l Crim. Trib. for the Former Yugoslavia May 7, 1997).

    [126].   Rome Statute, supra note 71, art. 7.

    [127].   See supra notes 86–88 and accompanying text.

    [128].   See Rep. of the Int’l Law Comm’n, supra note 115, art. 18, cmt. (5) (indicating that the action may come from a government or from an organization or a group, may or may not be affiliated with a government, and applies to acts by private citizens or agents of a State).  The text omits any intention or goal of the attack and states only that it must be organized.  Id. art. 18, cmt. (3).  This would be consistent with the application of crimes against humanity to German industrialists and businessmen who took advantage of slave labor for private gain during World War II.  See Ratner & Abrams, supra note 26, at 67.

    [129].   Three draft proposals over three consecutive years all included the wording “systematic [and][or] widespread.”  Rep. of Preparatory Comm. on the Establishment of an Int’l Criminal Court, Addendum, at 30–31, U.N. Doc. A/Conf.183/2/Add.1 (1998); Decisions Taken by the Preparatory Comm. at Its Session Held from 11 to 21 Feb. 1997, at 3, U.N. Doc. A/AC.249/1997/L.5; GAOR, 52nd Sess. (1997); Rep. of the Preparatory Comm. on the Establishment of an Int’l Criminal Court (vol. II), at 65, U.N. Doc. A/51/22; GAOR, 51st Sess., Supp. No. 22A (1996).  The fact that the two options were shown in successive drafts over several years shows debate and inability to decide this wording.

    [130].   Rep. of the Int’l Law Comm’n, supra note 115, art. 18 & cmts. (4)–(5).

    [131].   Id. art. 18, cmt. (4).  The purpose was to exclude an isolated act by an individual acting independently and directing the attack against a single victim.  Id.

    [132].   Id. art. 18, cmt. (3).  The purpose of this requirement was to exclude random acts of violence not connected to a broader plan.  Id.

    [133].   See Elements of Crimes Finalized Draft, supra note 123, art. 6(a) (“The perpetrator killed one or more persons.” (emphasis added)).

    [134].   Rep. of the Int’l Law Comm’n, supra note 115, art. 18, cmt. (4).  This would be consistent with previous ICTY rulings that a single act could constitute a crime against humanity when taken within the context of a widespread systematic attack.  Prosecutor v. Blagojević & Jokić, Case No. IT-02-60-T, Trial Chamber Opinion and Judgment, ¶ 545 (Int’l Crim. Trib. for the Former Yugoslavia Jan. 17, 2005); Prosecutor v. Tadic, Case No. IT-94-1-T, Trial Chamber Opinion and Judgment, ¶ 649 (Int’l Crim. Trib. for the Former Yugoslavia May 7, 1997).

    [135].   See U.N. Secretary-General, Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, ¶ 24, U.N. Doc. S/2006/893 (Nov. 15, 2006) (recognizing the possibility that the assassination of Mr. Rafik Hariri, the former Lebanese prime minister, satisfied the customary requirements for a crime against humanity); cf. Ratner & Abrams, supra note 26, at 61 (suggesting that the execution of Hungarian leader Imre Nagy in 1956 by Soviet authorities was a crime against humanity because the Soviets intended the act to intimidate the entire civilian population).

    [136].   Cf. Ratner & Abrams, supra note 26, at 61–62 (suggesting that “a group of Rwandan Hutus under the influence of drugs ransacking a Tutsi town and massacring its inhabitants” would constitute a crime against humanity).

    [137].   Tadic, Case No. IT-94-1-T, ¶ 649 (“Clearly, a single act by a perpetrator taken within the context of a widespread or systematic attack against a civilian population entails individual criminal responsibility and an individual perpetrator need not commit numerous offences to be held liable.  Although it is correct that isolated, random acts should not be included in the definition of crimes against humanity, that is the purpose of requiring that the acts be directed against a civilianpopulation and thus ‘[e]ven an isolated act can constitute a crime against humanity if it is the product of a political system based on terror or persecution.’” (alteration in original) (citation omitted)).

    [138].   See Prosecutor v. Kupreskic, Case No. IT-95-16-T, Trial Chamber Judgment, ¶ 550 (Int’l Crim. Trib. for the Former Yugoslavia Jan. 14, 2000) (“For example, the act of denouncing a Jewish neighbour to the Nazi authorities – if committed against a background of widespread persecution – has been regarded as amounting to a crime against humanity.” (citation omitted)).

    [139].   Hwang, supra note 77, 497 & nn.239–40 (describing from her notes the Canadian proposal at the Rome Conference).  Many nongovernmental organizations were concerned this was an attempt to make the elements de facto cumulative.  Id. at 498–99.

    [140].   Webster’s Third New International Dictionary 1485 (Philip Babcock Gove ed., 1993) (defining “multiple” as “consisting of, including, or involving more than one.”).

    [141].   Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire, No. ICC-02/11, ¶¶ 28–29 (Oct. 3, 2011) [hereinafter Côte d’Ivoire Investigation].

    [142].   Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Jun. 12, 2002).

    [143].   Id. ¶ 98.

    [144].   Côte d’Ivoire Investigation, supra note 141, ¶¶ 28, 42–43.

    [145].   See generally Asia-Pacific Ctr. for the Responsibility to Protect, Cyclone Nargis and the Responsibility Project: Myanmar/Burma Briefing No. 2 (May 16, 2008), available at http://www.r2pasiapacific.org
/documents/Burma_Brief2.pdf (discussing whether the blocking of humanitarian assistance by the Myanmar (Burma) government constituted crimes against humanity).  The French Foreign Minister and Ambassador argued that a refusal to accept aid after an environmental disaster is a crime against humanity if it results in systematic or widespread death.  Id. at 2.

    [146].   Rome Statute, supra note 71, art. 7(2)(b) (“‘Extermination’ includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.”).

    [147].   E.g., Mugesera v. Can., [2005] 2 S.C.R. 100 (Can.), ¶¶ 157–58 (stating that there currently does not appear to be any requirement that a policy underlie an attack); The Queen v. Munyaneza, [2009] QCCS 2001 ¶ 114 (Can. Que.) (noting that “international jurisprudence establishes that the attack need not be the result of an official policy of the State or government”).

    [148].   Bassiouni, supra note 109, at xxxiv.

    [149].   Rome Statute, supra note 71, art. 10 (“Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.”).

    [150].   E.g., Statute of the Special Court for Sierra Leone, supra note 8, art. 2 (“The Special court shall have power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population . . . .”); On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, United Nations Transitional Administration in East Timor, sec. 5, U.N. Doc. UNTAET/REG/2000/15 (June 6, 2000) (“‘Crimes against humanity’ means any of the following acts when committed as part of a widespread or systematic attack and directed against any civilian population, with knowledge of the attack . . . .”).

    [151].   See Bassiouni, supra note 101, at 94–95 (noting that advocates have relied on certain judicial opinions in an attempt to show that “unbridled universal jurisdiction” is established law).  This is because “[u]niversal jurisdiction transcends national sovereignty” with no limits of territorial jurisdiction.  Id. at 96.

    [152].   Boed, supra note 24, at 306 (indicating that a recent study found that twenty-four States have passed legislation permitting this type of jurisdiction); David Scheffer, Opening Address, 35 New Eng. L. Rev. 233, 236 (2001) (observing that Canada, France, Germany, the United Kingdom, and other signatories of the ICC have created new legislation to conform their laws to the definition of crime in the Rome Statute).  Canada now permits a domestic court to exercise universal jurisdiction for crimes against humanity committed outside of Canada against foreign victims if the perpetrator is present in Canada.  Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, arts. 6, 8(b) (Can.).

    [153].   See Leila Nadya Sadat, Redefining Universal Jurisdiction, 35 New Eng. L. Rev. 241, 243 (2001) (noting that national courts have increasingly been responsible for the prosecution of foreigners for crimes committed in a different state); see also Monica Hans, Comment, Providing for Uniformity in the Exercise of Universal Jurisdiction: Can Either the Princeton Principles on Universal Jurisdiction or an International Criminal Court Accomplish This Goal?, 15 Transnat’l Law.357, 368–78 (2002) (examining recent legal developments in Belgium and Spain).

    [154].   Scheffer, supra note 152, at 233 (“Universal jurisdiction is not a broadly adhered-to standard.  Everyone talks about universal jurisdiction, but almost no one practices it.  It has been a mostly rhetorical exercise since World War II.”).  In past years, governments were very reluctant and resisted exercising jurisdiction over Pol Pot, Kurd leader Ocalan, and former Ethiopian leader Mengistu.  Id. at 235–36.

    [155].   See Bassiouni, supra note 101, at 91–92.  States exercised territorial jurisdiction over the IMT and IMTFE tribunals as occupying powers.  Id. at 91.  The Security Council established ICTY and ICTR based on Chapter VII powers with enforcement established via ad hoc tribunals.  Id.

    [156].   Regina v. Bartle, [1999] 1 A.C. 147 (H.L.) (appeal taken from U.K.), reprinted in 38 I.L.M. 581, 582–83 (1999).  See generally Naomi Roht-Arriaza, The Pinochet Precedent and Universal Jurisdiction, 35 New Eng. L. Rev. 311 (2001) (providing background information on Regina and its impact on both Argentina and Chile).

    [157].   See Roht-Arriaza, supra note 156, at 314 (noting that, in the beginning, the case purposefully featured victims from the forum State and, therefore, used a basis of jurisdiction other than universality).

    [158].   Regina, 38 I.L.M. at 591.

    [159].   Roht-Arriaza, supra note 156, at 313.

    [160].   Wolfgang Kaleck, From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998–2008, 30 Mich. J. Int’l L. 927, 931–32 (2009).  There have also been attempted exercises of universal jurisdiction in Africa, such as Senegal’s 2000 indictment of Hissene Habre, former dictator of Chad, on charges of torture.  Reed Brody, The Prosecution of Hissène Habré – An “African Pinochet”, 35 New Eng. L. Rev. 321, 327–34 (2001) (stating that the case signaled that the “Pinochet precedent” will be used outside of Europe); Ex-Chad Ruler Is Charged by Senegal with Torture, N.Y. Times, Feb. 4, 2000, at A3 (indicating that the Pinochet arrest inspired the Habre indictment).

    [161].   R v. Zardad, Cent. Crim. Ct. (Old Bailey), Apr. 7, 2004, ¶¶ 13–14 (Eng.) (unpublished), available at http://www.redress.org/downloads/news/zardad
%207%20apr%202004.pdf.

    [162].   Id. ¶¶ 11–12.

    [163].   Vikram Dodd, Terror Police Feared Gun Battle with Israeli General, Guardian (Feb. 19, 2008, 5:34 PM), http://www.guardian.co.uk/uk/2008/feb
/19/uksecurity.israelandthepalestinians.

    [164].   Paisley Dodds, UK Tightens Rules on Arresting Foreigners, Guardian (Sept. 15, 2011), http://www.guardian.co.uk/world/feedarticle/9848978.

    [165].   Prosecutor v. Kallon, Case No. SCSL-2004-15-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, ¶¶ 71, 88 (Mar. 13, 2004) (Spec. Ct. Sierra Leone).

    [166].   Id. ¶ 88.

    [167].   Id. ¶¶ 67, 70.

    [168].   Pub. Prosecuting Auth. v. Repak, Case No. 08-018985MED-OTIR/08, Judgment, ¶¶ 6–11 (Dec. 2, 2008) (Nor.).

    [169].   Id. ¶¶ 8, 10.

    [170].   Id. ¶ 4.

    [171].   Id. ¶ 9.

    [172].   Id. ¶¶ 8, 16.

    [173].   Id. ¶ 8.

    [174].   Id.

    [175].   See generally Amnesty International, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation (2001) (campaigning for all States to enact universal jurisdiction legislation).

    [176].   Strafprozessordnung [StPO] [Code of Criminal Procedure], Apr. 7, 1987, Bundesgesetzblatt, Teil I [BGBl. I] 1074, as amended, §§ 230(1), 232 (Ger.).

    [177].   Code de Procédure Pénale [C. pr. pén] arts. 410, 487 (Fr.); Wetboek van Strafvordering [Sv] art. 280 (Neth.).

    [178].   Hans, supra note 153, at 381–82 (noting that Belgium has been at the forefront of States using domestic law enabling universal jurisdiction and is especially aggressive in attempting to hold foreign leaders accountable for crimes against humanity).  Belgium charged Ndombasi with crimes against humanity and war crimes for inciting racial hatred that resulted in several hundred deaths.  Id. at 382.

    [179].   See Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, 20–21, 25–26, 32–33 (Feb. 14).  Arrest warrants for Zimbabwean President Robert Mugabe and a case against then-President George W. Bush were dropped for the same reason.  See Kaleck, supra note 160, at 936–37, 940.

    [180].   Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. at 63–65, 68 (joint separate opinion of Judges Higgins, Kooijmans and Buergenthal).

    [181].   See Kaleck, supra note 160, at 933–35 (indicating that Belgium alone has initiated cases against former Chinese President Jiang Zemin, former U.S. President George H.W. Bush, former Secretary of Defense and Vice President Richard Cheney, and former Chadian Dictator Hissene Habre, and has attempted a case against a former Israeli prime minister).

    [182].   Restatement (Third) of Foreign Relations Law § 403(1) (1986) (“[A] state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable.”).

    [183].   See id. §§ 403–04.

    [184].   See Ratner & Abrams, supra note 26, at 143–44 (discussing that many States showed a willingness to eliminate statutes of limitations for crimes against humanity).  On the international level, the international community formed the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity to prohibit States from imposing any temporal limitations for these crimes.  Id. at 143.  As of 2000, there were only forty-four parties to the treaty.  Id.

    [185].   The principle of complementarity between States has also been raised as a potential problem for prosecution.  Kaleck, supra note 160, at 960.  Since this determination is within the sole discretion of the prosecuting State, however, it does not serve as a barrier to the threat of prosecution.  See id. at 960–61.

    [186].   See Bartram S. Brown, The Evolving Concept of Universal Jurisdiction, 35 New Eng. L. Rev. 383, 390 (2001) (discussing that the law rises above the interests of individual States and States no longer have a legitimate interest in shielding their citizens).

    [187].   See Sadat, supra note 153, at 258–59 (discussing that most international conflicts of laws apply the principle that each State may apply its own law to a problem unless there is a prohibition).

    [188].   See id. (indicating that an amnesty for a crime violating an international norm would be ineffective if the defendant travels abroad).

    [189].   Rome Statute, supra note 71, pmbl. (affirming that serious crimes of international law must not go unpunished); see Young, supra note 26, at 458 (indicating that the language of the Rome Statute establishes a commitment to individual responsibility and ending impunity).

    [190].   Rome Statute, supra note 71, art. 1 (The jurisdiction “shall be complementary to national criminal jurisdictions”); Johan D. van der Vyver, Personal and Territorial Jurisdiction of the International Criminal Court, 14 Emory Int’l L. Rev. 1, 66–71 (2000) (“ICC jurisdiction is complementary to national courts . . . .”).  Complementarity denotes that “national courts have the first right and obligation to prosecute perpetrators of international crimes, and because ICC jurisdiction is complementary to national courts, ICC jurisdiction can only be invoked if the national court is unwilling or unable to prosecute.”  Id. at 66.

    [191].   Rome Statute, supra note 71, art. 12(2)(a).

    [192].   Id. art. 12(2)(b).

    [193].   Young, supra note 26, at 464 (noting that there is no explicit mention of amnesty in the Rome Statute, but the ICC must eventually consider the issue if it is going to act as a substitute for national prosecution); see also Arsanjani, supra note 19, at 67 (stating that at the preparatory phase of negotiations, the delegates did not seriously discuss how to address domestic amnesties due to pressure from human rights groups).

    [194].   An international conference was held in Rome from June 15 to July 17, 1998 to produce the statute for the establishment of the ICC.  History of the ICC, Coalition for Int’l Crim. Ct., http://www.iccnow.org/?mod=Icchistory (last visited Oct. 1, 2012).

    [195].   See Scharf, supra note 22, at 521–22 (citing Interview with Philippe Kirsch, Rome Diplomatic Conference Chairman, in Fr. (Nov. 19, 1998)).  The adopted provisions reflect “creative ambiguity.”  Id. at 522 (citing Interview with Philippe Kirsch, supra).

    [196].   Rome Statute, supra note 71, art. 5.

    [197].   As of February 1, 2012, 139 States signed the Rome Statute, and 121 ratified and became party to the ICC.  Ratification Status of the International Criminal Court, Coalition for Int’l Crim. Ct., http://www.iccnow.org/?mod
=romeratification (last visited Oct. 1, 2012).  Guatemala became the most recent party when its Congress voted to ratify the Rome Statute on January 26, 2012.  Press Release, Int’l Criminal Court, Guatemala Becomes the 121st State to Join the ICC’s Rome Statute System (Apr. 3, 2012), http://www.icc-cpi.int/NR/exeres/E2BBA18C-A830-4504-B9BE
-6F118C3690F7.htm.

    [198].   Rome Statute, supra note 71, art. 86 (imposing an affirmative duty to cooperate fully with the ICC in its investigation and prosecution of crimes against humanity).  States must also comply with requests for arrest and surrender of perpetrators.  Id. art. 89(1).

    [199].   Id. pmbl. (affirming responsibility for effective prosecution and punishment for serious crimes and declaring that all States have a duty to exercise criminal jurisdiction over those liable for international crimes); Arsanjani, supra note 19, at 67 (noting that the Rome Statute appears hostile to amnesties for crimes against humanity); Scharf, supra note 22, at 522 (citing Rome Statute, supra note 71, pmbl.) (indicating that the Preamble suggests that amnesty is incompatible with the purpose of the ICC).

    [200].   See discussion of “complementarity” supra note 190.

    [201].   Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, art. 40, NS/RKM/1004/006 (Oct. 24, 2004) (“The Royal Government of Cambodia shall not request an amnesty or pardon for any persons who may be investigated for or convicted of crimes . . . .  The scope of any amnesty or pardon that may have been granted prior to the enactment of this Law is a matter to be decided by the Extraordinary Chambers.”); Statute of the Special Court for Sierra Leone, supra note 8 (“An amnesty 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.”); see also S.C. Res. 1757, Attachment art. 6, U.N. Doc. S/RES/1757 (May 30, 2007) (“An amnesty granted to any person for any crime falling within the jurisdiction of the Special Tribunal shall not be a bar to prosecution.”).

    [202].   See Rome Statute, supra note 71, pmbl. (noting that the States who became parties to the Rome Statute were “[d]etermined to put an end to impunity for the perpetrators of these crimes”).

    [203].   E.g., Scharf, supra note 22, at 524–25 (noting that both Articles 17 and 20 prevent the trying of a case if it is already being tried in another court); Young,supra note 26, at 465–69 (indicating that Articles 17 and 20 might permit amnesty if it is combined with a truth commission or civil proceedings instead of a criminal trial).

    [204].   Rome Statute, supra note 71, art. 17(1)(a).

    [205].   Id. art. 17(2)(a).

    [206].   Id. art. 17(2)(c).

    [207].   Id. art. 20(3).

    [208].   Id. art. 20(3)(b).

    [209].   See Webster’s Third New International Dictionary, supra note 140, at 71.

    [210].   Cf. Young, supra note 26, at 464–65 (noting that a literal reading of the Articles indicates that they require an actual trial).  Investigation must involve identifying those responsible, imposing sanctions, and providing reparation to victims.  Id. at 479 n.260 (citing Chanfeau Orayce v. Chile, Cases 11.505 et al., Inter-Am. Comm’n H.R., Report No. 25/98, OEA/ser.L/V/II.98, doc. 7 rev., ¶ 70 (Apr. 7, 1998)).

    [211].   Henrard, supra note 23, at 629 (indicating that the prosecutor could refuse to prosecute based upon the belief that an amnesty agreement is acceptable); Scharf, supra note 22, at 524 (discussing that the ICC’s prosecutor can decide to respect an amnesty-for-peace agreement); Young, supra note 26, at 469–70 (noting that the ICC’s prosecutor may determine whether amnesty serves the interests of justice).

    [212].   Rome Statute, supra note 71, art. 53(1)(c).  The prosecutor can decline to initiate an investigation after examining the seriousness of the crime and the interests of the victims and then deciding “there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.”  Id.

    [213].   Id. art. 53(3)(a) (“[T]he Pre-Trial Chamber may review a decision of the Prosecutor . . . not to proceed and may request the Prosecutor to reconsider that decision.”).

    [214].   Côte d’Ivoire Investigation, supra note 141, ¶ 207.

    [215].   Rome Statute, supra note 71, art. 53(3)(a).  The choice is up to the Prosecutor whether to recognize societal choices.  Id.; see also Richard J. Goldstone & Nicole Fritz, ‘In the Interests of Justice’ and Independent Referral: The ICC Prosecutor’s Unprecedented Powers, 13 Leiden J. Int’l L. 655, 659 (2000) (noting that the factors influencing domestic decisions to not prosecute are not necessarily replicated internationally).

    [216].   See Rome Statute, supra note 71, art. 29 (“The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.”); id. art. 53(4) (“The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information.”).

    [217].   Id. art. 120.

    [218].   Id. Declaration of Colombia, ¶ 1 (“None of the provisions of the Rome Statute concerning the exercise of jurisdiction by the International Criminal Court prevent the Colombian State from granting amnesties, reprieves or judicial pardons for political crimes, provided that they are granted in conformity with the Constitution and with the principles and norms of international law accepted by Colombia.”).

    [219].   Id. art. 120 (“No reservations may be made to this Statute.”)

    [220].   All Situations, Int’l Crim. Ct., http://www.icc-cpi.int/Menus/ICC
/Situations+and+Cases/Situations/ (last visited Oct. 1, 2012).

    [221].   All Cases, Int’l Crim. Ct., http://www.icc-cpi.int/Menus/ICC
/Situations+and+Cases/Cases/ (last visited Oct. 1, 2012).

    [222].   Id.  The indictments led to the first successful conviction in the ICC on March 14, 2012, which was for rebel leader Thomas Lubanga Dyilo of the Democratic Republic of Congo.  Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, Judgment Pursuant to Article 74 of the Statute, ¶¶ 1, 1358 (Mar. 14, 2012).

    [223].   Vienna Convention on the Law of Treaties, art. 27, May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980) (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”).

    [224].   Rome Statute, supra note 71, art. 59(1) (stating that a State which has received a request for arrest and surrender shall immediately comply with the request); see also Vienna Convention on the Law of Treaties, supra note 223, art. 26 (“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”).

    [225].   Charles Villa-Vicencio, Why Perpetrators Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Commissions Meet, 49 Emory L.J. 205, 212 (2000).

    [226].   Faustin Z. Ntoubandi, Amnesty for Crimes Against Humanity Under International Law 12 & n.16, 25 (2007) (discussing amnesties granted by the U.S. government, including to participants in the Whiskey Rebellion and to both U.S. citizens and soldiers after the U.S. Civil War and the Korean War); O’Shea, supranote 9, at 20–21 (discussing that between 1867 to 1872, President Andrew Johnson and the U.S. Congress passed a general amnesty act after the Civil War and the President of Brazil negotiated the end of a war by granting amnesty to the rebels).

    [227].   26 Apr. 2001, Parl. Deb., H.C. (2001) (U.K.), available at http://www.publications.parliament.uk/pa/cm200001/cmstand/d/st010426/pm
/10426s01.htm (“[M]any of the crimes that the IRA and some of the loyalist groups had committed could be categorized as crimes against humanity as set out in the statute of Rome . . . .  It is perfectly clear to all of us that it would [be] easy for an international court to argue that those on either side who had been responsible for such atrocities could be hauled before it.  People in this country would greatly resent that.  Some of us bitterly resent the fact that the Government gave an amnesty to some of those in the IRA who were responsible for the most horrendous terrorist crimes and who murdered friends of ours.  Nevertheless, we accept that some leeway had to be given in a spirit of reconciliation if peace was to be secured in Northern Ireland.”).

    [228].   See Bell, supra note 20, at 6 (discussing that peace agreements “embody a set of understandings between some of the protagonists to a conflict” as to exactly how the conflict will be resolved).

    [229].   E.g., Naomi Roht-Arriaza, Prosecutions of Heads of State In Latin America, in Prosecuting Heads of State, supra note 3, at 46, 46–76 (discussing that Latin America has seen a significant reversal with previous amnesty laws overturned decades later by domestic courts).

    [230].   See Williams & Scharf, supra note 5, at 30 (noting that officials engaged in negotiating the end of the conflict in the former Yugoslavia contended that assurances of amnesty were necessary as an incentive to end fighting).

    [231].   Cf. Bell, supra note 20, at 286 (discussing that amnesty is normally a common feature when there is no victory or “overthrow” by any of the parties at the end of the conflict).

    [232].   Id. (noting that the move towards accountability affects the mechanisms available for dealing with past conflict and abuses).

    [233].   U.N. Charter art. 24.  The Security Council consists of fifteen members of the U.N., with five permanent members.  See Membership in 2012, U.N. Security Council, http://www.un.org/sc/members.asp (last visited Oct. 1, 2012).  Its purpose is to ensure effective action in the U.N. by having a smaller representative council capable of imposing binding decisions.  U.N. Charter arts. 24–26.

    [234].   U.N. Charter art. 24.

    [235].   Id. art. 39.

    [236].   E.g., S.C. Res. 918, ¶ 13, U.N. Doc. S/RES/918 (May 17, 1994) (using Chapter VII powers to impose a weapons and parts embargo on Rwanda in an attempt to resolve the conflict); S.C. Res. 873, ¶¶ 1, 4, U.N. Doc. S/RES/873 (Oct. 13, 1993) (permitting the releasing of frozen funds under Chapter VII powers, but confirming the possible imposition of other measures to assist in the negotiations to restore democracy in Haiti).

    [237].   E.g., S.C. Res. 169, ¶¶ 1, 6, U.N. Doc. S/RES/169 (Nov. 24, 1961) (requesting States to refrain from supplying weapons which could be used by secessionist groups in the Congo); S.C. Res. 161, ¶ 1, U.N. Doc. S/RES/161 (Feb. 21, 1961) (permitting the U.N. to use force if necessary to prevent civil war in the Congo).

    [238].   S.C. Res. 161, supra note 237 (reiterating that the plight of people suffering under a purely internal conflict in Congo affects both world peace and international cooperation).

    [239].   U.N. Charter arts. 39, 41.

    [240].   Id. art. 36(2).

    [241].   See id. arts. 24, 25.

    [242].   Member States of the United Nations, United Nations, http://www.un.org/en/members/index.shtml (last visited Oct. 1, 2012).

    [243].   See U.N. Charter arts. 1(1), (3), 24(2).

    [244].   Rome Statute, supra note 71, art. 16 (“No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”).

    [245].   Id.

    [246].   Ruth Wedgwood, The International Criminal Court: An American View, 10 Eur. J. Int’l L. 93, 98 (1999).

    [247].   Rome Statute, supra note 71, arts. 17(1)(d), 53(1)(c).

    [248].   U.N. Charter art. 103.

    [249].   Id.

    [250].   R v. Sec’y of State for Defence, [2007] UKHL 58, 1 A.C. 332 (H.L.) [26–39] (appeal taken from Eng.).

    [251].   Id.

    [252].   Id. at [27].

    [253].   See generally U.N. Secretary-General, The Situation of Democracy and Human Rights in Haiti, U.N. Doc. A/47/975-S/26063 (July 12, 1993).

    [254].   Scharf, supra note 1, at 7 (quoting U.N. SCOR, 48th Sess., 3238th mtg. at 120, 126, U.N. Doc. S/INF/49 (1993)).

    [255].   See generally S.C. Res. 948, U.N. Doc S/RES/948 (Oct. 15, 1994).

    [256].   See generally S.C. Res. 2014, U.N. Doc S/RES/2014 (Oct. 21, 2011).

    [257].   Id. ¶ 4.

    [258].   Assia Boundaoui, Yemeni Americans Protest Against Saleh’s US Trip, World (Feb. 23, 2012), http://www.theworld.org/2012/02/yemeni
-americans-protest-against-salehs-us-trip/.

    [259].   See U.N. Charter art. 25 (“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” (emphasis added)).  Though the Security Council has utilized a variety of terms to indicate binding authority, the clearest usage is when the Security Council states that it “decides” a certain action.

    [260].   An example would be Colombia and its multifaceted civil war including widespread atrocities.  See Villa-Vicencio, supra note 225, at 206 (suggesting that legal absolutism is sometimes not helpful and is unrealistic).

    [261].   See Committee on Economic, Social and Cultural Rights Concludes Session, ScienceBlog (Dec. 9, 1997), http://scienceblog.com/community/older
/archives/L/1997/B/un971881.html (noting that the committee adopted a “General Comment” that began to examine whether the Security Council must determine if human rights suffering is occurring as a result of Chapter VII sanctions).

    [262].   See U.N. Charter art. 27(3).

Lyons_LawReview_1.13

 

By: Beate Sjåfjell*

Introduction: A Moral Imperative for Action

The company is one of the most ingenious inventions of our time.[1]  With limited liability for its investors, enabling capital to be (in theory) put to its most efficient use, the company has become the backbone of our economies.  But must this all-important component of our market economies be equated with environmental degradation to the extent that we risk dangerous loss of biodiversity and passing the tipping point of climate change?  In my opinion it must not.  We need to find out how to make the necessary changes.  We have a moral imperative for action.[2]

Climate change is a case in point for the necessity of working toward a sustainable development; toward the achievement of economic development and social justice within the nonnegotiable ecological limits of our planet.[3]  According to even the most conservative estimates of the Intergovernmental Panel on Climate Change (“IPCC”),[4] business as usual will most probably lead to climate change of a magnitude to which we cannot adapt, or to which we can adapt only at extremely high costs.[5]  Contrary to popular phraseology, dealing with climate change is not about saving the planet.  The planet will take care of itself.  The issue is whether we should preserve the very basis of our existence, of our societies as we know them today.[6]  Runaway climate change involves a high risk of severe environmental, social, and economic consequences,[7] and the challenge of climate change needs to be dealt with on all those levels, both in terms of mitigating as much as possible, and adapting to that which cannot be avoided.[8]

Climate change is not the only crisis we face.  There is a convergence of crises: the financial crises; the loss of biodiversity threatening the stability of our ecosystems;[9] the peaking of fossil energy sources;[10] and the harsh brutality of tens of thousands of people dying every day for poverty-related reasons.[11]  In the aftermath of one financial crisis and the furious effort to try to avoid a new full-blown crisis, the attention of world leaders is on stimulating growth and getting back to business as usual.[12]  Although there has been some talk of a “Global Green New Deal,” of turning the financial crisis into an opportunity for necessary transition to a green economy,[13] generally speaking, environmental concerns have a tendency to be placed on the backburner, along with concerns for the underprivileged of this world, when jobs are lost, revenues disappear, stock markets quiver, and the financial basis of developed countries appears to be in danger.[14]  Getting back on track with economic growth and business as usual is a postponement of the necessary focus on dealing with climate change and other overriding environmental concerns—a postponement that may turn out to be highly detrimental to our chances of achieving a sustainable global society: financially, socially, and environmentally.[15]

It is the poor people of this world who are already suffering the most, who are hit first by financial crises,[16] and who will continue to be affected the most, in the short term, as a consequence of climate change and the global energy situation.[17]  But ultimately these crises affect us all: there are many indications that business as usual is the right choice only if we desire a very uncertain future for our children and grandchildren.[18]  Unfortunately, by the time enough decision-makers realize that business as usual is not a viable alternative, it may very well be too late.[19]  That gives rise to the question: What do we do?

I.  The Role of Companies

What then is the role of companies in this bigger picture?  Surely it is not companies, but policymakers and lawmakers, our parliaments and governments, who should do what is necessary to lead us into sustainable development.  The responsibility of the state is incontestable.[20]  However, a part of that responsibility is considering the role of companies.[21]  The great significance of the function of companies within the global economy and the vast impact that the operations of companies today have, on an aggregated level, on society in general and on the biosphere and the atmosphere, means that a critical analysis of the purpose of companies and the regulatory framework within which they operate is crucial to a deeper understanding of the correlation between society and sustainable development.[22]  We cannot hope to achieve overarching societal goals without companies contributing to them.  Companies are all-important components of our economies, with an enormous unrealized potential for mitigating climate change.  As put forward by the IPCC, there is potential to reduce greenhouse gas emissions with existing technology, but a number of barriers prevent this potential from being realized.[23]

The conceived primacy of shareholders and of profit maximization for shareholders is arguably one such barrier, and indeed prime among them.[24]  Business acceptance of the nonprimacy of shareholder interests seems to be a necessary prerequisite for business to become sustainable, also in the environmental sense.  As long as profit (maximization) for shareholders is the overarching goal, any attempt at prioritizing environmental concerns and prioritizing climate change mitigation will quickly hit a ceiling.[25]  Certainly, profit in itself is good and necessary for the survival of our businesses providing workplaces, revenue, and in short, welfare.  The search for profit is legitimate and necessary.  The problem arises when profit becomes the overarching objective to the detriment of other legitimate interests and societal goals.  We need to find out how to change the framework within which profit is pursued, so that profit is pursued within the goal of sustainable development instead of the pursuit of profit being the main goal, with some good being done (or appearing to be done) in the name of corporate social responsibility.

II.  The Role of Law

A.     Beyond CSR and Mainstream Corporate Governance: Integration of Environmental Concerns

There are two dominant debates concerning companies: the Corporate Social Responsibility (“CSR”) debate and the Corporate Governance debate.[26]  CSR in a sustainable-development perspective could be seen as dealing with and bringing together two interrelated issues:[27] firstly, legal compliance and secondly, the company’s responsibility for going beyond such compliance, with the legal rules forming the floor and the voluntary part of CSR being a striving beyond that—a race to the top.[28]  In that sense, CSR would encompass and form a bridge between hard law, soft law, and ethical obligations.  But CSR does not do this.  Business lobbyists have captured the CSR concept and ensured that the definition legislators subscribe to is that of CSR as a voluntary activity.[29]  The business message may be said to be: “Do not legislate us, and we are willing to talk about how we behave.”[30]  This is not meant to ignore that good is done in the name of CSR.  And certainly the CSR movement has led to or been a part of a process where no self-respecting business leader will claim that her company disregards CSR.[31]  However, as I have argued elsewhere, defining CSR through delimitation against legal obligations is deceptive and detrimental to the development of a sustainably and socially responsible business and has contributed to giving CSR a bad name.[32]

Much of what companies claim as credit on their CSR accounts is involvement with issues unrelated to their businesses, for example the Norwegian Airport Express Train organizing computer classes for former drug addicts[33] or Norsk Hydro funding the Oslo Philharmonic Orchestra.[34]  Funding the Orchestra gives no indication at all of how Norsk Hydro is run as a business—how it contributes to or works against the mitigation of climate change, how its employees are treated, or whether it cares about the workers hired by its subcontractors.[35]  Organizing computer classes for the underprivileged or funding cultural activities is not CSR in the true sense—it is corporate charity work.[36]

The mainstream corporate governance debate concentrates on a small segment of the reality in which companies operate.[37]  This debate focuses on investors, first and foremost shareholders, and their relationship with the board of the company and, by extension, its management.  The corporate governance debate has spawned a number of corporate governance codes and legislative measures, such as the EU Directive on shareholder rights.[38]  Heavily influenced by the dominant legal-economic theory of agency,[39] the focus is on how to find the right incentives to make the board act as agents for the shareholders as principals with profit maximization as the overarching goal.[40]

Together with the capture of CSR as a voluntary affair for business, the narrow focus typical of the mainstream corporate governance debate promotes the shareholder primacy drive and the misconception that the company is and should be a vehicle for profit maximization for shareholders only—and that it is sufficient for companies to contribute to overarching societal goals.[41]  A true integration of environmental concerns is required.  The law, therefore, is necessary to ensure the contribution of companies, to level the playing field for companies that wish to actively contribute to the mitigation of climate change and of threats to biodiversity, and to ensure that their contributions are not limited by the competitive advantage that today’s system tends to give irresponsible and short-sighted companies.

B.     The Limited Effectiveness of Environmental Law

Having established that the law is necessary, this poses the question: What area of law?  Environmental law and other forms of external regulation[42] are important, but the limits of external regulation are well documented and consist of a number of interlinked issues, briefly sketched here.

First, the extraterritoriality issue or the issue of home state and host state.  For example, while European companies may be under relatively strict environmental regulation in their home state, the jurisdictional scope of home state regulation does not typically cover the companies’ business in other countries.[43]  The host state may have lax regulation or lacking enforcement.  Developing countries, needing jobs and revenue, may be fearful of making demands on companies from developed countries.[44]  Second, the regulatory lacuna at an international level—the stalled proposal for UN norms governing transnational companies is an example of this gap.[45]  Third, the legislatures cannot keep up with everything companies do or plan to do and the environmental consequences of their actions.[46]  Fourth, there is the danger of loopholes, boilerplate formulas or other measures through which companies comply or seem to comply with the law at as low a cost as possible.  This is the problem with reporting.[47]

Finally, and perhaps most importantly, sustainable development is about going further than the antipollution approach that often characterizes environmental law and other external regulation.  Sustainable development is a way of thinking.  To get decision makers in companies to think in a certain manner an internal company perspective is required.  In my opinion, this involves a company law perspective—not as an exclusive perspective, but as a necessary contribution.

C.     The Role of Core Company Law

This Article makes the argument that company law is a necessary tool for achieving sustainable companies, both to make the external regulation of companies more effective and to realize the potential within each company to make its own independent, creative, and active contribution to the mitigation of climate change.  Take the mainstream corporate governance debate as a starting point: If the focus of the board, and by extension, the management, is to be primarily on ensuring profit for shareholders and keeping the share price high, and the whole system encourages shareholders to focus on their profits, who then is to be responsible for the company’s action beyond its narrow obligation to comply with the law?  In my opinion, this should be the responsibility of the board.  But the board is under pressure from the shareholder primacy drive to focus on the short term rather than the long term and to disregard externalities that the company is not obligated by law to internalize (or which it can get away with ignoring).

In many jurisdictions, company law is seen as regulating the purpose of the company through its regulation of the relationship between the shareholders, the board, and management.  Company law is thereby seen as supporting the shareholder primacy drive, although that view arguably is more a social norm than a legal one.[48] Combating the negative effects of the shareholder primacy drive therefore, in my opinion, entails redefining the purpose of the company and the role and the purpose of the board.[49]  I believe redefining should be done in a principle-based manner, but it should be done in law, through the use of legal standards, instead of attempting to do this (only) through more or less voluntary codes and so on.  The law needs to create a floor beneath which no company can go, thereby promoting a race to the top through each company contributing in its own individual, creative way.

III.  The Research Project “Sustainable Companies”

A.     Internalizing Environmental Externalities

The international team of the Oslo-based research project “Sustainable Companies”[50] is dedicated to finding out how to move from the idea of internalizing externalities[51] to a research-based proposal.  Our vision is to contribute to the tools that make companies become a part of the solution.  The hypothesis underlying the project is that environmental sustainability in the operation of companies cannot be effectively achieved unless the objective is properly integrated into company law and thereby into the internal workings of the company.[52]  To test this hypothesis and to prepare the ground for well-founded proposals for reform at the end of the project period, an important first stage in the “Sustainable Companies” project has been to map the barriers to and possibilities for the promotion of sustainable business in the hitherto often ignored area of company law.[53]  Team members in our project, from a wide range of jurisdictions including countries in Europe, the Americas, Africa, and Asia,[54] have written country reports concerning the same set of questions with the main focus on core company law issues but also covering accounting/reporting and auditing/assurance, as well as the in practice very important but in company law not adequately addressed area of groups.  These country reports have formed the basis for the ongoing work with three cross-jurisdictional papers identifying the barriers to and possibilities for sustainable companies in the same three important areas: first, core company law; second, accounting/auditing rules; and third, the regulation of company groups.[55]  In this Article, a first tentative suggestion of the results of this mapping and what it entails for possible reforms is given.[56]  For reasons that will be made clear below, the focus is on core company law.

B.     Tentative Results: Possibilities and Critique

On the face of it, we see tentative glimmers of hope and possibilities for the promotion of companies in the increasing focus on CSR and the ethical obligations of a company to consider the environmental and societal impacts of its business.[57]  An analysis of the results of the mapping indicates that the two debates of CSR and mainstream corporate governance are reflected.[58]  On the one hand, there is more shareholder focus, also in continental European and Nordic countries originally having a wider perspective.[59]  On the other hand, there is more focus on the wider corporate responsibility also in shareholder primacy strongholds such as the United Kingdom, with its enlightened shareholder value.[60]  Exceptionally, the consideration of the environment is directly included in legal requirements of the duties of the board, as in the U.K. Companies Act of 2006,[61] while in jurisdictions like Germany we even see an increased emphasis in company law on a pluralistic view of the interests of the company.[62]  In countries that have had to rebuild their societies after communism, or as in South Africa after apartheid, we see tendencies to new approaches based on a broader understanding of the societal significance of companies.[63]  Certainly company law in many jurisdictions allows the inclusion of environmental concerns and also the prioritization of environmental protection over short-term profit, and we find legal sources that substantiate that from a legislative perspective.  Companies are expected to contribute toward societal goals wider than that of shareholder profit maximization.[64]

These two partly conflicting trends seem to lead to reporting being seen as the solution, as a compromise satisfying both groups, especially in the form it takes in most countries, where the extent to which companies internalize environmental externalities[65], for example, is voluntary, while the reporting itself is not—an approach that may be seen as underpinned through theories of reflexive law.[66]  We see this in EU law and it is taken further in Norway[67] and Denmark.[68]  We see the same tendency in some corporate governance codes, notably in the Netherlands.[69]  There are some court cases that arguably indicate a new approach, inter alia, in cases concerning the piercing of the corporate veil.[70]

There are also some business initiatives, in Germany and in Ireland for example, that seem to be working to contribute toward sustainable development.[71]  There are some institutional investors, some pension funds, which are on their way toward what may become truly socially responsible investment.[72]  And we see a very slowly growing tendency in public opinion to require more from companies.[73]

However, the positive tendencies are not sufficient, neither in their current scope nor in their capacity to develop—it is too little and most likely going to be too late.  Even more seriously, there is a two-pronged danger of the CSR talk and of reporting as the preferred perceived solution.  First, concerning reporting: when the core duty is not in place, when the decision makers in companies are not required to integrate environmental concerns into the decisions of how the core business of the company is to be run, and when there is no hard law stating that companies must be run in a socially responsible manner, we risk that environmental reporting is neither relevant nor reliable.[74]  There are even studies that indicate “a negative relation, i.e., the more a firm discloses, the worse its environmental performance.”[75]  The uglier the company, the more makeup it uses.  Similar problems are reported concerning the disclosure of social issues.[76]  Second, concerning CSR: corporate charity work is often used instead of true CSR, leading to greenwashing and deflecting our attention from how the core business of the company is actually run.[77]  Further, all the CSR talk creates a danger of the wool being pulled over our eyes—making us believe that enough is being done.  This is the danger with the company law reforms that are perceived by some as positive, notably the codification of the so-called enlightened shareholder value of the U.K. Companies Act.[78]  If this is seen as a step forward, it may serve to take the pressure off of legislators to undertake proper reform, due to the misconception that progress is made in terms of internalising externalities in business decision making, when the truth seems to be that nothing has changed at all—at least not for the better.  In the United Kingdom, as in most of the rest of the world, we are still seeing business as usual—or, with the current financial unrest following the financial crisis of 2008, desperate attempts to keep business going as usual.[79]  But business as usual is not and cannot be an alternative for humanity desiring to ensure viable ecosystems for future generations.[80]

C.     Tentative Results: The Main Barrier

The role of the board is central to the way companies are run and thereby to the contribution of companies to the mitigation of climate change and the mitigation of the destruction of biodiversity.[81]  Inspired by the ideas of agency theory, directors of the board are increasingly seen as agents for the shareholders as principals, with profit maximization as the goal.[82]  The tentative results of our cross-jurisdictional analysis indicate that shareholder primacy and the perceived overarching goal of maximizing shareholder profit present the most important barriers to the contribution of companies to environmental sustainability.[83]  Indeed, all tentative possibilities, all glimmerings of hope, are negated through the dominance of shareholder primacy and the short-term shareholder profit maximization drive.

This does give rise to the question: How can shareholder primacy be perceived as a main barrier in an analysis of company law, when shareholder primacy arguably is more of a social norm than a legal one?[84]  However, there is a clear link between this social norm and company law, because the social norm has developed within the framework of the law, as a result of what the law does and does not regulate.[85]  In my opinion, understanding this relationship may be a significant step in understanding how we can achieve change, and it certainly is also indicative of the possibility that lies in company law as it is today.

In what way has company law allowed this myth of shareholder primacy and profit maximization as a mandatory requirement to develop?  To understand that, it may be useful to return to the starting point of this Article, namely that the company is one of the most ingenious inventions of our time.  We mostly take it for granted today, but the company with limited liability for its shareholders is a relatively recent innovation, and much younger than the enforceable contract, that perhaps was the most innovative contribution of Roman law.[86]  Contracts and private property rights are necessary prerequisites for business as we know it and have much deeper historical roots as such.[87]  The idea of the company with limited liability, where people can invest their money in a business venture and expect a cut of future profits if successful and not lose more than their investment if unsuccessful, is relatively speaking the newcomer in the world of business.[88]  From one perspective, this was arguably not new: banks lend money to business projects along the same principles.[89]  The major difference is, however, that banks are protected through contract, while shareholders are not.[90]  Nor are shareholders owners, in any full, traditional sense of the word ownership.[91]

History saw the rise of this innovative way of financing companies, putting capital to its purportedly most efficient use, but for that to work on a grand scale, investors needed some kind of protection.  Naturally, therefore, Companies Acts setting up rules for companies with limited liability for their shareholders emphasize regulating the relationship between the shareholders on the one hand and the company, through its board and management, on the other.  This is not to say that no other interests involved in or affected by companies are dealt with in Companies Acts—most Companies Acts have some rules concerning creditor protection.[92]  The rights of creditors are, however, mainly regulated through other areas of law, with historical roots far surpassing those of companies with limited liability.

The focus on shareholders in the Companies Acts has in many jurisdictions led to company law being perceived as regulating the purpose of the company through its regulation of the relationship between shareholders and the company.  Nordic Companies Acts, for example, typically state that companies that do not have profit for shareholders as a purpose should regulate in their articles of association how the profit of the company is to be distributed.[93]  This is misconstrued, in my opinion, as setting out the purpose of the company understood as the company’s only or main purpose.  Understood historically, the Companies Acts set out the typical purpose that shareholders have with their relationship with companies in which they have shares, and serves as a protection of that purpose in the sense that if companies do not intend to distribute dividends to shareholders at all, then potential investors should be given a forewarning in the articles of association.  What the Nordic Companies Acts do not say anything about—and neither do Companies Acts, generally speaking, expressly regulate this issue—is what the purpose of the company on an aggregated level is, and what the guidelines are according to which the company is to be run.  The interlinked concepts of the purpose of the company and the interests of the company are therefore topics for debate in academic contributions, while in more pragmatic, practitioner-oriented literature the inference is simply drawn that shareholder focus in the Companies Acts translates into a prioritization of shareholder interest by the legislators.  The historically explicable fact of the focus of the relationship between the shareholders and the company organs in the Companies Acts, and the lack of express regulation of the core company issues of the purpose of the company and the interests of the company, has therefore led to the development within this vacuum of an idea of shareholder primacy.[94]  This is not to say that shareholder primacy cannot be substantiated as having legal support in any jurisdiction.  However, the dominance of the Anglo-American law-and-economics[95]inspired shareholder primacy[96] does seem to go far beyond anything that can be substantiated in a comparative analysis of company law.[97]  Certainly the narrow, short-term perspective that the shareholder primacy drive has led to is contrary to company legislation anywhere, and detrimental to the societal goals to which the regulation of companies is meant to contribute.[98]

The vacuum in the Companies Acts of many jurisdictions and the resulting development of the shareholder primacy drive, with its detrimental effects, has led to the extraordinary state of affairs of the Reflection Group on the Future of EU Company Law[99] suggesting that companies should be allowed to include in their articles of association that boards are allowed to promote the interests of the company[100] and to employ a long-term perspective.[101]  The Reflection Group thereby proposes to codify an acceptance of what, from any proper, in-depth company law analysis seems to be the state of law today—namely that shareholder profit maximization and shareholder primacy are not the only, nor should they be, the dominant guidelines in the narrow, short-term sense that we see today and that may be seen as contributing to the convergence of crises that we face.[102]  The perverse effect of that well-intended proposal may unfortunately be that it is used as an argument to say that narrow, short-term shareholder primacy is the norm according to European company law—otherwise, why would the Reflection Group suggest that the opposite should be expressly allowed?

D.    The Way Forward: Tentative Reflections

We see that what is perhaps the main barrier to sustainable companies has been allowed to flourish because of what the law regulates and what it does not.  This also indicates a way forward.  If a key problem is the lack of regulation of what the purpose of companies and the interests of companies are, then a clarifying regulation of those issues will not be just an additional layer of detailed regulation that entails only more expenses and aggravation for companies, but will set a key issue straight in a principle-based manner that could be the start of a shift in a sustainable direction.[103]  However, as we are so far off track from sustainable development, with a dramatic shift needed to achieve the presumed safe harbour of no more than two degrees Celsius warming,[104] we probably need to go beyond stipulating long-term, inclusive concepts of the purpose of the company and the interests of the company.  In my opinion, what urgently needs to be done is to clarify that the company, on an aggregated level, may and should have profit as a core of its purpose[105]—business cannot survive in the long run without making profit—but this should be sought within the overarching societal purpose of sustainable development.  This would be turning inside out the purpose of the company that shareholder primacy drive today promotes, where profit is the overarching purpose and perhaps some good may be sought in the name of CSR.

Because shareholder primacy in the narrow, short-term sense has been allowed to develop for so long, we will also need to consider incentives to support a shift towards sustainable development, and removing disincentives for sustainability that encourage the myth of shareholders as owners and shareholder profit maximization as the dominant guideline.  The concept of the interests of the company as a guideline should be developed accordingly, and as I have suggested elsewhere, be teamed together with a concept of sustainable development as an overarching guideline.[106]

A tentative conclusion from my point of view is that legal reform seems to be necessary to not only support the possibilities that company law today actually gives sustainable business, but to codify these possibilities expressly, preferably as mandatory guidelines, so that the competitive advantage is given to companies that wish to contribute to sustainable development and taken away from those that do not.  Legal reform seems to be necessary to start the difficult process of removing the barriers created mainly through social norms that have been allowed to develop in the vacuum caused by the lack of definition of the purpose of companies and of the interests of the company in company law.

Only once these issues are clarified as a matter of company law do we have a good basis for discussing incentives and sanctions, such as liability, and necessary supportive measures such as accounting and reporting—taken seriously—and not as marketing and greenwashing and wool-over-the-eyes pulling as we have today.

Reforming core company law seems in short to present itself as a necessary prerequisite to achieving sustainable companies, both to make the external regulation of companies more effective and to realize the potential within each company to make its own independent, creative, and active contribution to the mitigation of climate change.

IV.  The Proposals of the “Sustainable Companies” Project

The “Sustainable Companies” project seeks in the last phase of the project[107] to identify necessary measures to dismantle the barriers preventing business from becoming sustainable and legal mechanisms and incentives to propose to promote truly responsible business.[108]  For the European part of the project,[109] EU law, the common framework for thirty European countries, contains the legal basis for making necessary changes to achieve sustainable business (and sustainable development in general).[110]  However, the necessary steps have not been taken.[111]  This lack of movement may be seen as indicative of a general problem: we may presume that the legislators have sufficient knowledge and on the EU level they have not only knowledge and sufficient legal basis to move forward,[112] but even legal obligations to take action to achieve the goal of sustainable development.[113]  Legislators nevertheless often seem to be powerless to move beyond path-dependent ways of dealing with the pervasive issues of our time.  Legislative work tends to be reactive rather than proactive, based on postulates and superficial discussions, with a striking lack of time and energy devoted to in-depth analysis of the underlying issues and the consequences of existing and proposed new legislation.[114]  The “Sustainable Companies” project therefore aims to conclude its work with research-based concrete proposals for any necessary change on the EU level, as well as jurisdiction-specific proposals for a number of the countries represented in the project team.[115]  These may take the form of proposals for legal reform within and beyond company law as well as proposals for guidelines for companies wishing to become true contributors to sustainable development.

Conclusion: Global Challenges Call for Global Debate

The challenges we face are global by nature.  Global challenges ideally require a global approach and an unprecedented holistic and forward-looking approach.[116] The international climate negotiations in Copenhagen and in Cancun have shown, as presumably will the coming negotiations in Durban, that we cannot depend on the governments agreeing to the necessary measures to mitigate climate change as far as still possible.  And even if the international community against all odds was to reach an agreement on a sufficient reduction in greenhouse gas emissions,[117] regulators around the world would be in dire need for effective proposals regarding how to achieve those goals.  And to reiterate: climate change is but one case in point for the necessity of a shift toward sustainable development.[118]

The “Sustainable Corporation” Symposium organized by the Wake Forest Law Review is one piece of an important jigsaw puzzle of international debate and collaboration necessary to move forward;[119] the “Sustainable Companies” research project, with its international team of scholars, is another.  Let us hope that there will be enough jigsaw puzzle pieces in time to make the picture complete.

 


*   Professor at the University of Oslo, Faculty of Law, Department of Private Law.  Head of the research project “Sustainable Companies” and the research group “Companies, Markets, Society and the Environment.”  Dr. Juris 2008, University of Oslo; Cand. Jur. 1999, University of Oslo.  My warmest thanks to Alan Palmiter for inviting me to present this Article at the Wake Forest Law Review Symposium “The Sustainable Corporation,” and to the participants for invigorating and challenging discussions.  I would also like to express my gratitude to my colleagues in the research project “Sustainable Companies” for their insightful contributions to our ongoing research.  The views expressed in this Article are my own and do not necessarily represent those of the project team.  All comments are welcome atbeate.sjafjell@jus.uio.no.

        [1].   The enforceable contract may be the most innovative contribution of Roman law.  See Alan Watson, The Evolution of Law: The Roman System of Contracts, 2 Law & Hist. Rev. 1, 1 (1984).  In a similar manner, company law has contributed to the contemporary economy.  See Raghuram G. Rajan & Luigi Zingales, Saving Capitalism from the Capitalists: Unleashing the Power of Financial Markets to Create Wealth and Spread Opportunity 59, 160 (2003).

        [2].   Others have also eloquently argued this proposition.  See generally Jonathon Porritt, Capitalism as if the World Matters (Earthscan rev. ed. 2007).  The title of this Article is inspired by and intended as a tribute to Jonathon Porritt’s book.

        [3].   Sustainable development—the balancing of economic development, environmental protection, and social justice—has famously been defined as a development that “meets the needs of the present without compromising the ability of the future generations to meet their own needs.”  Rep. of the World Comm’n on Env’t and Dev.: Our Common Future, ¶ 27, U.N. Doc. A/42/427, Annex (Aug. 4, 1987) [hereinafter Our Common Future].  For a discussion of the concept and criticism against it, see Beate Sjåfjell, Towards a Sustainable European Company Law: A Normative Analysis of the Objectives of EU Law, with the Takeover Directive as a Test Case § 10.7 (2009).  See also Christina Voigt, Sustainable Development as a Principle of International Law: Resolving Conflicts Between Climate Measures and WTO Law (2009).

        [4].   See generally Intergovernmental Panel on Climate Change, Fourth Assessment Report: Climate Change 2007 (2007), available at http://ipcc.ch
/publications_and_data/publications_and_data_reports.shtml.

        [5].   “Unmitigated climate change would, in the long term, be likely to exceed the capacity of natural, managed and human systems to adapt.  Reliance on adaptation alone could eventually lead to a magnitude of climate change to which effective adaptation is not possible, or will only be available at very high social, environmental and economic costs.”  Lenny Bernstein et al., Synthesis Report, in Intergovernmental Panel on Climate Change, Climate Change 2007: Synthesis Report, Contribution of Working Groups I, II, and III to the Fourth Assessment Report of the IPCC (R.K. Pachauri & A. Reisinger, eds., 2007), [hereinafter Synthesis Report]available at http://ipcc.ch/publications_and
_data/ar4/syr/en/main.html.  This is not a new wake-up call and is perhaps better perceived as a final warning.  See Our Common Future, supra note 3, ¶ 126 (“We are unanimous in our conviction that the security, well-being, and very survival of the planet depend on such changes, now.”).

        [6].   As stated in the conservative magazine The Economist, about “trying to avert the risk of boiling the planet”: the “costs are not huge.  The dangers are.”Economics of Climate Change: Stern Warning, Economist, Nov. 2, 2006, at 14.  The Stern Review has characterized climate change as “the greatest and widest-ranging market failure ever seen,” pointing out that it poses “a unique challenge for economics” (and, may we add, for law).  Nicholas Stern, Stern Review: The Economics of Climate Change (2006), available at http://www.hm-treasury.gov.uk/d/Executive_Summary.pdf.

        [7].   “The resilience of many ecosystems is likely to be exceeded this century by an unprecedented combination of climate change, associated disturbances (e.g., flooding, drought, wildfire, insects, ocean acidification), and other global change drivers (e.g., land-use change, pollution, over-exploitation of resources).”  Neil Adger et al., Summary for Policymakers, in Climate Change 2007: Impacts, Adaptation and Vulnerability, Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (M.L. Parry et al. eds., 2007), available at http://ipcc.ch
/publications_and_data/ar4/wg2/en/spm.html.

        [8].   See supra notes 5 and 7 and accompanying text.

        [9].   See Millennium Ecosystem Assessment, Ecosystems and Human Well-Being: Biodiversity Synthesis 2 (José Sarukhán et al. eds., 2005), available athttp://www.maweb.org/documents/document.354.aspx.pdf [hereinafter Biodiversity Synthesis] (“Human actions are fundamentally, and to a significant extent irreversibly, changing the diversity of life on Earth, and most of these changes represent a loss of biodiversity.  Changes in important components of biological diversity were more rapid in the past 50 years than at any time in human history.  Projections and scenarios indicate that these rates will continue, or accelerate, in the future.”).  See also, e.g., Alison Benjamin, Fears for Crops as Shock Figures from America Show Scale of Bee Catastrophe, Observer, May 1, 2010, www.guardian.co.uk/environment/2010/may/02/food-fear-mystery-beehives-collapse.

      [10].   See, e.g., Jeremy Leggett, After the Credit Crisis—Next It Will Be Oil, Fin. Times, June 8, 2010, http://www.ft.com/intl/cms/s/0/6b195284-733c-11df
-ae73-00144feabdc0.html#axzz1dX3qlp00 (“[T]he ITPOES companies fear an irrecoverable fall in global oil supply by 2015 at the latest and that if oil producers then husband resources, a global energy crisis could abruptly morph into energy famine for some oil-consuming nations.”); Indus. Taskforce on Peak Oil & Energy Sec., The Oil Crunch: A Wake-up Call for the UK Economy (Simon Roberts ed., 2010), available at http://peakoiltaskforce.net/wp
‑content/uploads/2010/02/final‑report‑uk‑itpoes_report_the‑oil‑crunch_feb20101
.pdf.

      [11].   See Ban Ki-Moon, Foreword to U.N., Millennium Dev. Goals Rep. 2010 (June 24, 2010) (“[I]t is clear that improvements in the lives of the poor have been unacceptably slow, and some hard-won gains are being eroded by the climate, food and economic crises.”).  And more recently, see Mark Tran, UN Declares Famine in Somalia, The Guardian, July 20, 2011, http://www.guardian.co.uk/global-development/2011/jul/20/un-declares-famine-somalia.  The U.N.’s official declaration that two parts of Somalia are in famine amid the worst drought in east Africa for sixty years poignantly illustrates the devastating situation many people face: “The drought in east Africa has left an estimated 11 million people at risk, but Somalia has been the worst hit country as it is already wracked by decades of conflict.” Id.  Andrew Mitchell, the UK’s international development secretary, is quoted as saying: “In Somalia, men, women, and children are dying of starvation.  The fact that a famine has been declared shows just how grave the situation has become.”  Id.

      [12].   The tensions in the international economy and the efforts to revive it are aptly captured in Chris Giles, Alan Beattie & Hugh Carnegy, G20 Strains Cast Shadow Over Meeting, Fin. Times, Oct. 13, 2011, http://www.ft.com/intl
/cms/s/0/db4ab070-f5ae-11e0-be8c-00144feab49a.html.

      [13].   See Press Release, U.N. Env’t Programme, “Global Green New Deal”—Environmentally-Focused Investment Historic Opportunity for 21st Century Prosperity and Job Generation, (Oct. 22, 2008), http://www.unep.org/newscentre
/Default.aspx?DocumentID=548&ArticleID=5957; see also Edward B. Barbier, Rethinking the Economic Recovery: A Global Green New Deal (2009), available athttp://www.sustainable-innovations.org/GE/UNEP%20%5B2009
%5D%20A%20global%20green%20new%20deal.pdf; Green Economy, United Nations Env’t Programme, http://www.unep.org/greeneconomy/ (last visited Mar. 11, 2012).

      [14].   As pointed out by professor of economics Edward B. Barbier: “Fossil fuel subsidies and other market distortions, as well as the lack of effective environmental pricing policies and regulations, will diminish the impacts of G20 green stimulus investments on long-term investment and job creation in green sectors.  Without correcting existing market and policy distortions that underprice the use of natural resources, contribute to environmental degradation and worsen carbon dependency, public investments to stimulate clean energy and other green sectors in the economy will be short lived.  The failure to implement and coordinate green stimulus measures across all G20 economies also limits their effectiveness in ‘greening’ the global economy.  Finally, the G20 has devoted less effort to assisting developing economies that have faced worsening poverty and environmental degradation as a result of the global recession.”  Edward B. Barbier, Green Stimulus is Not Sufficient for a Global Green Recovery, Vox (June 3, 2010), http://www.voxeu.org/index.php?q
=node/5134.

      [15].   Whether the current global uprising against the financial system can transmute into a call for sustainability in all three dimensions remains to be seen.  SeeMichael Stothard, Shannon Bond & Matt Kennard, Wall St Protests Spread to Global Stage, Fin. Times, Oct. 14, 2011, http://www.ft.com/intl/cms/s/0
/611665f0-f65e-11e0-86dc-00144feab49a.html; see also Shannon Bond, Obama Extends Support for Protesters, Fin. Times, Oct. 16, 2011, http://www.ft.com/intl
/cms/s/0/052226f8-f80c-11e0-a419-00144feab49a.html (“Others stressed they were part of a global movement for justice.  ‘First came the Arab Spring and Spain’sindignados.  Then came the Wall Street protests.  In London, we are now part of this movement campaigning for a better world.’”).

      [16].   Although the U.N. cites some positive results in terms of the Millennium Development Goals, the 2010 Millennium Development Goals Report also indicates that progress against hunger has been impacted more severely by economic troubles: “The ability of the poor to feed their families was hit consecutively by skyrocketing food prices in 2008 and falling incomes in 2009, and the number of malnourished, already growing since the beginning of the decade, may have grown at a faster pace after 2008.”  U.N., Millennium Development Goals Report 2010 (June 24, 2010) [hereinafter MDG Report], available at http://www.un-ngls.org/spip.php?page=amdg10&id_article=2681.

      [17].   See Joachim von Braun, The World Food Situation: New Driving Forces and Required Actions 12 (2007), available at www.ifpri.org/pubs/fpr/pr18.pdf (“When taking into account the effects of [unmitigated] climate change, the number of undernourished people in Sub-Saharan Africa may triple between 1990 and 2080 . . . .”); see also Synthesis Report, supra note 5.

      [18].   See, e.g., MDG Report, supra note 16.

      [19].   See, e.g., Climate Change 2007: Mitigation of Climate Change, Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (B. Metz et al. eds., 2007) [hereinafter Mitigation], available at http://ipcc.ch/publications_and_data/ar4
/wg3/en/contents.html (calling for emissions to peak before 2015).

      [20].   See generally Beate Sjåfjell, If Not Now, Then When?: European Company Law in a Sustainable Development Perspective, 7 Eur. Company L. 187 (2010).

      [21].   Tending to be ignored or left to the realm of voluntary corporate social responsibility initiatives, a case may be made for including the regulation of companies in the toolbox of regulators pursuing sustainable development.  See generally Sjåfjell, supra note 3.

      [22].   Id.

      [23].   Lenny Bernstein et al., Industry, in Mitigation, supra note 20.

      [24].   See Sjåfjell, supra note 3, § 4.3.5.

      [25].   See generally Beate Sjåfjell, Why Law Matters: Corporate Social Irresponsibility and the Futility of Voluntary Climate Change Mitigation, 8 Eur. Company L. 56 (2011).

      [26].   Beate Sjåfjell, Internalizing Externalities in E.U. Law: Why Neither Corporate Governance nor Corporate Social Responsibility Provides the Answers, 40 Geo. Wash. Int’l L. Rev. 977, 981 (2009).

      [27].   For example, including the three dimensions of sustainable development: environmental protection, social justice, and economic development, in CSR debates also known simply as “Planet, People and Profit.”  See T. Lambooy, Corporate Social Responsibility: Legal and Semi-legal Frameworks Supporting CSR 10 (Deventer: Kluwer, 2010).

      [28].   Sjåfjell, supra note 25, at 56–64.

      [29].   See, e.g., Communication from the Commission Concerning Corporate Social Responsibility: A Business Contribution to Sustainable Development, at 5, COM (2002) 347 final (July 2, 2002), available at http://eur-lex.europa.eu
/LexUriServ/LexUriServ.do?uri=COM:2002:0347:FIN:en:PDF (“CSR is a concept whereby companies integrate social and environmental concerns in their business operations and in their interaction with their stakeholders on a voluntary basis.”).  For an example on a national level, see Beate Sjåfjell, Report from Norway: Another CSR Victory for the Business Lobbyists, 5 Eur. Company Law 235 (2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id
=1413388.  We may, however, be seeing the first indications of the EU definition of CSR attempting to get out of the straight-jacket of voluntarism, see the Commission’s newest Green Paper on CSR.  See A renewed EU strategy 2011-14 for Corporate Social Responsibility, COM (2011) 681 final (Oct. 25, 2011), available at http://ec.europa.eu/enterprise/policies/sustainable-business
/files/csr/new-csr/act_en.pdf.

      [30].   Sjåfjell, supra note 25.

      [31].   Id.

      [32].   Id.

      [33].   This was heralded by the Norwegian business newspaper Dagens Næringsliv in December of 2010 as an example of CSR.

      [34].   See Sponsor, Filharmonien Oslo, http://www.oslofilharmonien.no/lang
/en/filharmonien/sponsor/ (last visited Mar. 11, 2012).

      [35].   See Our Values, Norsk Hydro, http://www.hydro.com/en/Subsites
/NorthAmerica/About-Hydro/Our-values/ (last visited Mar. 11, 2012).

      [36].   It could be argued, of course, that corporate charity work (“CCW”) is a part of an extended concept of CSR, but we should distinguish between CSR in the wide sense, including CCW, and the core of true CSR; for further explanation, see Sjåfjell, supra note 25.  For different definitions of CSR, see generally Archie B. Carroll & Kareem M. Shabana, The Business Case for Corporate Social Responsibility: A Review of Concepts, Research and Practice, 12 Int’l J. Mgmt. Revs. 85 (2010).

      [37].   Sjåfjell, supra note 3, § 4.1 (explaining the current debates including the mainstream corporate governance, and introducing a new structure for analysis of issues concerning companies, involved parties and affected interests).

      [38].   See Council Directive 2007/36/EC, O.J. 2007 (L 184/17–24) (on the exercise of certain rights of shareholders in listed companies).  For an overview of corporate governance codes, see Index of Codes, European Corporate Governance Institute, www.ecgi.org/codes/all_codes.php (last visited Mar. 11, 2012).  For a critical perspective, see generally Steen Thomsen, The Hidden Meaning of Codes: Corporate Governance and Investor Rent Seeking, 7 Eur. Bus. Org. L. Rev. 845 (2006).

      [39].   Beate Sjåfjell, More Than Meets the Eye: Law and Economics in Modern Company Law, in Law and Economics. Essays in Honour of Erling Eide, 217 (Erik Røsæg et al. eds., 2010), available at http://papers.ssrn.com/abstract
=1601980.

      [40].   Id.  See also Sjåfjell, supra note 3, § 4.3.5.  See also Kent Greenfield, From Rights to Regulation in Corporate Law, in Perspectives on Company Law: 2, 1 (Fiona Patfield ed., 1997).  However, indications on EU level may now be found that these alleged truths are questioned and that the problems with a too short-term perspective that the shareholder primacy drive entails are acknowledged.  See, e.g., The EU Corporate Governance Framework, COM (2011) 264 final (Apr. 5, 2011),available at http://ec.europa.eu/internal_market
/company/docs/modern/com2011-164_en.pdf.

      [41].   A.A. Berle, Jr., Corporate Powers as Powers in Trust, 149 Harv. L. Rev. 1049, 1049 (1931).

      [42].   As opposed to the internal regulation of the competence, duties, and decision making in companies through company law.

      [43].   Michael Anderson, Transnational Corporations and Environmental Damage: Is Tort Law the Answer?, 41 Washburn L.J. 399, 409 (2002).

      [44].   See generally Janet Dine, Companies, International Trade and Human Rights (2005) (discussing the complex relationships between corporations, nation states, and international organizations).

      [45].   See United Nations, Econ. & Soc. Council, Comm. on Human Rights, Sub-Comm. on the Promotion and Protection of Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003); Surya Deva, UN’s Human Rights Norms for Transnational Corporations and Other Business Enterprises: An Imperfect Step in the Right Direction?, 10 ILSA J. Int’l & Comp. L. 493 (2003); Carolin F. Hillemanns, UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, 4 German L.J. 1065 (2003).

      [46].   D.G. Goyder, The Just Enterprise 36 (1987) (giving the example of the countryside of Northamptonshire being dug up in search of iron ore: “It was some years before the government passed legislation imposing on companies the legal duty of reinstating fields and woods devastated by open-cast mining, and by then it was too late to recover much of the amenity value lost.”).

      [47].   Sjåfjell, supra note 25.

      [48].   See infra Part III.C.

      [49].   See infra Part III.D.

      [50].   For more information about this project, which is financed by the Research Council of Norway and has a dedicated team of thirty-five scholars from many regions of the world, see Sustainable Companies, Univ. of Oslo, http://www.jus.uio.no/ifp/english/research/projects/sustainable-companies/ (last visited Mar. 11, 2012) [hereinafter Sustainable Companies].

      [51].   Sjåfjell, supra note 26, at 1003–04.

      [52].   See Sustainable Companies, supra note 50.

      [53].   See generally Benjamin J. Richardson, Sustainability and Company Law: An Improbable Union?, 8 Eur. Company L. 54 (2011).

      [54].   See Sustainable Companies, supra note 50 (listing the team members).  The tentative analysis below is based on draft mapping papers, many of which are still works in progress.  Direct reference to the draft mapping papers are generally not made in this Article.  The final versions will be made available in 2012 on the website’s publications page.  The jurisdiction-specific papers published in the Sustainable Companies project referred to below are initial discussions of some of the issues that are analysed over a broader scale in the mapping papers.

      [55].   All three draft papers were presented at the international conference “Towards Sustainable Companies: Identifying New Avenues” in Oslo on August 29 and 30, 2011.  For more information about the conference, see Towards Sustainable Companies: Identifying New Avenues, Univ. of Oslo, http://www.jus.uio.no/ifp/english/research/projects/sustainable‑companies/events/conferences/sustainable-companies-conference-2011.html (last visited Mar. 11, 2012).

      [56].   Again, the tentative summary of the results and what they entail for possible future reform is my own personal view, not necessarily representative of the view of the whole project team, nor of my co-authors for the cross-jurisdictional paper in core company law.

      [57].   This is apparent in the emphasis placed on these issues by those who sell sustainability services to companies.  See, e.g., Global Sustainability, PwC http://www.pwc.com/gx/en/sustainability/index.jhtml (last visited Mar. 11, 2012).

      [58].   The two debates are introduced infra Part II.A.

      [59].   For an illustrative example of Norway, see generally Sjåfjell, Towards a Sustainable Development: Internalising Externalities in Norwegian Company Law, 8 Int’l & Comp. Corp. L.J. 103 (2011).

      [60].   See generally Charlotte Villiers, Directors’ Duties and the Company’s Internal Structures Under the UK Companies Act 2006: Obstacles for Sustainable Development, 8 Int’l & Comp. Corp. L.J. 47 (2011).

      [61].   Id.

      [62].   Gudula Deipenbrock, Sustainable Development, the Interest(s) of the Company and the Role of the Board from the Perspective of a German Aktiengesellschaft, 8 Int’l & Comp. Corp. L.J 15 (2011).

      [63].   See generally Richard Croucher & Lilian Miles, Corporate Governance and Employees in South Africa 10 J. Corp. L. Stud. 367 (2010).

      [64].   See Sjåfjell, supra note 59.

      [65].   And other societal externalities.

      [66].   Karin Buhmann, Reflexive Regulation of CSR to Promote Sustainability: Understanding EU Public-Private Regulation on CSR Through the Case of Human Rights 18 (Univ. of Oslo Faculty of Law Research Paper Series, Paper No. 2010-07), available at http://ssrn.com/abstract=1712801.

      [67].   Sjåfjell, supra note 25.

      [68].   Karin Buhmann, The Danish CSR Reporting Requirement: Migration of CSR-Related International Norms into Companies’ Self-Regulation Through Company Law?, 8 Eur. Company L. 65 (2011).

      [69].   Tineke Lambooy, Corporate Social Responsibility: Legal and Semi-legal Frameworks Supporting CSR 107–46 (2010).

      [70].   Although the Supreme Court expressly indicated the result in Hempel was an interpretation of the Norwegian Pollution Act, the case may arguably be the forerunner of a special type of piercing the corporate veil, with its own set of conditions.  Beate Sjåfjell, Environmental Piercing of the Corporate Veil: The Norwegian Supreme Court Decision in the Hempel Case, 7 Eur. Company L. 154, 154–60 (2010), available at http://papers.ssrn.com/abstract=1616820.

      [71].   See Deipenbrock, supra note 62, at 7–8 (explaining the concept of the German “econsense”).

      [72].   Anita M. Halvorssen, Addressing Climate Change Through the Norwegian Sovereign Wealth Fund (SWF)—Using Responsible Investments to Encourage Corporations to Take ESG Issues Into Account in Their Decision-Making 13–14 (Univ. of Oslo Faculty of Law Research Paper Series, Paper No. 2010-06), available at http://ssrn.com/abstract=1712799.  See generally Benjamin J. Richardson, Socially Responsible Investment Law: Regulating the Unseen Polluters (2008) (providing background material on socially responsible investment).

      [73].   See, e.g., Oliver Ralph, All Change: Long-term Success Requires Flexibility and Co-operation, Fin. Times, Oct. 10, 2011, http://www.ft.com/intl
/cms/s/2/097d7244-f10d-11e0-b56f-00144feab49a.html (discussing how companies must maintain strong relationships with consumers, staff, shareholders, and investors when facing productivity challenges).

      [74].   See generally Sylvie Berthelot et al., Environmental Disclosure Research: Review and Synthesis, 22  J. Acct. Literature 1 (2003) (analyzing environmental disclosures and concerns over their reliability).

      [75].   Id. at 20.

      [76].   William. S. Laufer, Social Accountability and Corporate Greenwashing, 43 J. Bus. Ethics 253, 255–57 (2003).

      [77].   Sjåfjell, supra note 25.

      [78].   See generally Surya Deva, Sustainable Development: What Role for the Company Law?, 8 Int’l & Comp. Corp. L.J. 76 (2011).  The question may even be raised whether what has been seen as a codification of a previously existing enlightened shareholder value norm may have been a shift to the detriment of the environmental and other societal interests through the clear hierarchy that has now been set out in the Act, with other interests to be taken into account as far as that benefits the shareholders—previously that relationship could at least be seen, by some, as open for discussion.

      [79].   Martin Wolf, Britain Must Escape its Longest Depression, Fin. Times, Sept. 1, 2011, http://www.ft.com/intl/cms/s/0/c6c14d92-d332-11e0-9ba8
-00144feab49a.html#axzz1nQSCI6qz.

      [80].   “[A]n acceptable environment is not the product of social development, but a prerequisite for it to exist, and is a right bound up with human life, without which there is neither mankind nor society nor law.”  Case C-176/03, Comm’n v. Council, 2005 E.C.R. I-7879, I-7896 n.51 (citing Demetrio Loperena Rota, 3 Los derechos al Medio Ambiente adecuado y a su protección, 3 Revista Electrónica de Derecho Ambiental 87 (1999)).

      [81].   Sjåfjell, supra note 3.

      [82].   Id.

      [83].   Id.

      [84].   Simon Deakin, The Coming Transformation of Shareholder Value, 13 Corp. Governance: An Int’l Rev. 11, 11 (2005) (“Shareholder primacy originates not in company law, but rather in the norms and practices surrounding the rise of the hostile takeover movement in Britain and America in the 1970s and 1980s.  It is . . . essentially a cultural rather than a legal point of reference.”).

      [85].   Id. at 13–14.

      [86].   See generally Watson, supra note 1.

      [87].   John Micklethwait & Adrian Wooldridge, The Company: A Short History of a Revolutionary Idea, 4 (2003).

      [88].   Id. at 46–54.

      [89].   Jesper Lau Hansen, Nordic Company Law: The Regulation of Public Companies in Denmark, Finland, Iceland, Norway, and Sweden 34–36 (2003).

      [90].   Id. at 31–36.

      [91].   Sjåfjell, supra note 3, § 3.3.3.

      [92].   Some, such as the Norwegian Companies Acts, also include rules on the involvement of employees in the decision making of companies, while the most central rules concerning the protection of employees is in a separate act—the Working Environment Act.  Norway has two limited liability companies acts: the Public Limited Liability Companies Act of June 13, 1997, No. 45 and the Private Limited Liability Companies Act of June 13, 1997, No. 46, both available (for a fee) in English translations in the Norwegian Institute of Public Accountants’ product Norwegian Company Legislation.  Revisorforeningen, http://www.revisorforeningen.no/a9356038/English/eBooks (last visited Mar. 11, 2012).  The Working Environment Act of June 17, 2005, No. 62 is freely available in an English translation.  Working Environment Act, Arbeidstilsynet, http://www.arbeidstilsynet.no/binfil/download2.php?tid
=92156 (last visited Mar. 11, 2012).

      [93].   See Norwegian Public Limited Liability Companies Act § 2-2(2) (“If the objective of the company’s activities is not to generate a financial return for its shareholders, the articles of association must contain provisions on the allocation of profit and the distribution of assets upon dissolution of the company.” (my translation)).

      [94].   The development and rise of shareholder primacy has other explanations as well, but in a legal analysis this is a main point.  For a broader discussion, see generally Andrew Keay, Moving Towards Stakeholderism? Constituency Statutes, Enlightened Shareholder Value, and More: Much Ado about Little?, 22 Eur. Bus. L. Rev. 1 (2011).

      [95].   The positive contributions of law and economics to our understanding of company law and the consequences of various forms of regulation are, in my opinion, indisputable.  However, so are the negative effects of the abuse of legal-economic theories meant to be descriptive as normative, and of the abundance of postulates based on concepts and ideas removed from the theories in which they originated and disconnected from the assumptions on which they are based.  SeeSjåfjell, supra note 25.

      [96].   To the extent that the end of history at one point was declared, see generally Henry Hansmann & Reinier Kraakman, The End of History for Corporate Law(Yale L. Sch., L. & Econ. Working Paper No. 235, 2000), available at ssrn.com/abstract=204528.

      [97].   Even in jurisdictions where the prioritization of shareholders over other interests may be said to have legal basis, such as the U.K., see Deakin, supra note 88, at 11.

      [98].   See Sjåfjell, supra note 3, § 4.3.5.4 (discussing the means and end).

      [99].   Report of the Reflection Group on the Future of EU Company Law, European Comm’n (Apr. 5, 2011), http://ec.europa.eu/internal_market/company
/docs/modern/reflectiongroup_report_en.pdf.

    [100].   Id. at 37.  “[Promoting the interests of the company] may have priority over the interest of individual shareholders if these two are in conflict and if serving the short term interest of shareholders would have a direct negative impact on the long-term viability of the company.”  Id. at 37–38.

    [101].   Id.

    [102].   Id. at 7–8.

    [103].   Sjåfjell, supra note 59.

    [104].   Which in itself may be assumed to have severe, negative effects, as the IPCC has in its very reticent form shown us.  See generally Intergovernmental Panel on Climate Change, www.ipcc.ch (last visited Mar. 11, 2012) (containing various reports on the scientific, technical and socio-economic aspects of climate change).  And climate change is but one of several pressing issues as a case in point for sustainable development.

    [105].   See Sjåfjell, supra note 3.

    [106].   Id. at ch. 5; see also Sjåfjell, supra note 26, at 987, 1003–06.

    [107].   Through the end of 2012.

    [108].   The project’s results—our proposals for reform—will be presented at the final conference in Oslo on November 12 and 13, 2012.  Updated information will be available at http://www.jus.uio.no/ifp/english/research
/projects/sustainable-companies/events/.

    [109].   Europe was the starting point for the project, but the project happily has developed into an international research endeavour.

    [110].   Sjåfjell, supra note 3, § 10.7; Beate Sjåfjell, Quo Vadis, Europe? The Significance of Sustainable Development as Objective, Principle and Rule of EU Law,in Non State Actors, Soft Law and Protective Regimes (C. Bailliet ed., forthcoming 2012).

    [111].   See Nele Dhondt, Integration of Environmental Protection into other EC Policies: Legal Theory and Practice 482 (2003).

    [112].   Which I expect legislators on a national level have worldwide through their general competence.

    [113].   Quo Vadis, Europe?, supra note 110.

    [114].   See Sjåfjell, supra note 3, pt. V.

    [115].   A list of the research team members and their countries of representation is available at http://www.jus.uio.no/ifp/english/research/projects
/sustainable-companies/members/.

    [116].   “The economic analysis must therefore be global, deal with long time horizons, have the economics of risk and uncertainty at centre stage, and examine the possibility of major, non-marginal change.”  Nicholas Stern, Stern Review on the Economics of Climate Change: Executive Summary i, xxii (Report presented to the UK Government on Oct. 30, 2006), available at http://webarchive.nationalarchives.gov.uk/+/http://www.hm‑treasury.gov.uk/d/Executive_Summary.pdf.

    [117].   IPCC recommends a peak by 2015 and a reduction of at least fifty per cent by 2050.  See Brian Fisher et al., Issues Related to Mitigation in the Long Term Context, in Mitigation, supra note 19.

    [118].   See, e.g., Biodiversity Synthesis, supra note 9, at 2; Benjamin, supra note 9.

    [119].   For more information, see the issue from the Wake Forest Law Review Symposium “The Sustainable Corporation,” 46 Wake Forest L. Rev. 383 (2011).

 

By: Jessica L. Rutledge*

Introduction

Over the past ten years, the Colombian government has persistently been digging itself into a paradoxical hole so deep that it will be remarkable if the government can make it out on top.  Despite the impressive maintenance of democracy since 1810[1] and an “excellent relationship” with the United States on several fronts,[2] Colombia is far from a peaceful nation.  Plagued by seemingly endless civil wars and battles with violent guerilla organizations and drug cartels, the Colombian government has fought tooth-and-nail to keep its democracy in place.[3]  Colombian natives live in fear of left-wing terrorist rebel groups like the Fuerzas Armadas Revolucionarias de Colombia (“FARC”), the Ejército de Liberación Nacional (“ELN”), and the Autodefensas Unidas de Colombia (“AUC”).[4]  These groups kill more than three thousand innocent Colombian civilians each year, and have defiantly objected to Colombia’s negotiation efforts by repeatedly attempting to commit political assassinations and kidnap Colombian leaders.[5]

Perhaps the biggest problem with these terrorist groups is that they are standing on solid economic ground, bringing in an estimated two hundred to three hundred million dollars each year by taxing coca farmers, processing the crop into cocaine, and smuggling it into the lucrative international drug trade.[6]  Thus, what started as a “Colombian” problem has developed into an international problem, particularly as Colombia is responsible for the majority of worldwide cocaine production and U.S. cocaine traffic.[7]  Recognizing the urgency of this situation and realizing that inhibiting the drug trade would largely cut off funding to left-wing rebel groups, former President Andrés Pastrana Arango launched “Plan Colombia,” a supposed six-year program to end armed conflict by focusing on the aerial eradication of coca and poppy plantations, largely funded by the United States.[8]

However, what began as a good faith effort to bring peace and democracy to a troubled nation has developed into an epic battle of human and environmental rights.  Beginning in the year 2000, aerial fumigations of a powerful herbicide mixture containing glyphosate, a chemical with unknown acute toxicity levels in humans, was sprayed across the countryside for days at a time from 6 a.m. to 4 p.m. each day.[9]  While purportedly aimed at Colombian coca and poppy plantations, the clouds of spray were picked up by the wind and carried elsewhere, landing not only on Colombian people, animals, homes, and food crops but also across the border into Ecuador and into the San Miguel River bordering the two countries.[10]  Ecuador admits that at times, some herbicide drift was caused by the wind.[11]  However, Ecuador argues that all too often, Colombian planes sprayed herbicides directly on the shared national border and used Ecuadorean air space to turn around, allowing the herbicide to fall indiscriminately on Ecuadorean people, plants, and animals.[12]

Immediately following the sprayings, Ecuadorean citizens were inflicted with serious adverse health reactions, including fevers, diarrhea, intestinal bleeding, nausea, skin and eye problems, and even a few deaths.[13]  Local crops relied on by Ecuadorean people for sustenance—including yucca, plantains, rice, coffee, and hay—were destroyed.[14]  Despite Ecuador’s repeated attempts to negotiate with Colombia over a period of eight years, Colombia repeatedly refused to cooperate.[15]  Thus, in March of 2008, Ecuador submitted an Application Instituting Proceedings to the International Court of Justice (“ICJ”), demanding that Colombia’s actions be declared internationally wrongful acts, and that Colombia be ordered to compensate the Ecuadorean people and government for their losses.[16]  As it stands, the ICJ is thus confronted with a unique controversy where it must either challenge an international drug ring that has terrorized Colombia for decades or address human rights and environmental issues presented from a neighboring state.

As unique as the Case Concerning Aerial Herbicide Spraying (Ecuador vs. Colombia) (“Aerial Herbicide Spraying”)[17] is standing on its own, it has come before the ICJ at an interesting point in the jurisprudence of International Environmental Law (“IEL”).  On April 20, 2009, the ICJ delivered a landmark opinion for IEL in Pulp Mills on the River Uruguay (Argentina v. Uruguay) (“Pulp Mills”) that sets an interesting background for Aerial Herbicide Spraying.[18]  In Pulp Mills, Argentina argued that Uruguay breached its obligations under the 1975 Statute of the River Uruguay in connection with the planned construction and authorization of two pulp mills on the river.[19]  Although this claim is primarily grounded in treaty provisions binding only Argentina and Uruguay, Argentina argued—and the ICJ agreed—that the treaty incorporated customary international law standards, including general principles of cooperation, due diligence, and prevention to the extent that they represent the opinio juris of nations.[20]  In the end, the ICJ refused to award reparations to Argentina for the alleged damage from Uruguay’s pulp mills.[21]  The court did, however, introduce some interesting developments to IEL in its decision.  For example, the ICJ utilized the case to acknowledge separate obligations under IEL: “procedurally” based and “substantively” based obligations.[22]  Moreover, the court went out of its way to reemphasize that due diligence is a “corpus” of international law, and for the first time, that an environmental impact assessment (“EIA”) is required under customary international law.[23]

The main purpose of this Comment is to analyze the Aerial Herbicide Spraying case—which is still in its preliminary stages—and how the outcome may be based on the Pulp Mills decision.  To set the initial framework for this analysis, this Comment will track the development of the customary principles of due diligence and prevention in Part I by dividing their history into two separate “waves.”[24]  To do this, the Comment will primarily utilize and add to Dr. Jorge Viñuales’ contemporary assessment of IEL.  Additionally, this Comment will consider the impact of the International Law Council’s Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities (“Articles on Prevention”) on IEL development.[25]

Part II of this Comment will engage in a discussion of Pulp Mills, including precisely what the ICJ decided and what the decision actually means in the context of IEL developmentFinally, drawing upon the analysis from Pulp Mills, Part III of this Comment will explore the potential repercussions of Pulp Mills for Aerial Herbicide Spraying.  This Comment concludes that the ICJ will almost certainly find that Colombia has violated its procedural obligations to Ecuador, notably by violating the general principles of prevention and cooperation.  Moreover, this Comment concludes that the ICJ will find that Colombia has violated its substantive obligations by disregarding the well-grounded principle that “states have . . . the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States.”[26]  Because Colombia specifically seeks refuge in the precautionary principle to excuse its actions, this Comment will assess the viability of this defense and ultimately conclude that Colombia has grossly misinterpreted the principle.  Moreover, as other scholars have predicted, this Comment concurs that Colombia’s best defense will be the doctrine of necessity.[27]  However, after a brief analysis, it demonstrates that Colombia does not meet the requisite test initially set forth in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Articles on State Responsibility”) and subsequently adopted in the Gabcíkovo-Nagymaros Project (Hungary v. Slovakia) (“Gabcíkovo-Nagymaros”).[28]  Thus, Colombia will most likely be held responsible for the harm inflicted upon Ecuador, despite its tragic predicament.

I.  The “Waves” of IEL

IEL as we know it today, like most areas of international law, is a haphazard collection of treaties, customary law, and general principles that have developed over time.[29]  At least for some facets of IEL, exactly what it constitutes is highly debatable, and more than one scholar will agree that many requirements are not conclusive enough to be customary.[30]  Perhaps the most frustrating problem is that unless a state has explicitly signed a treaty or committed an egregious ius cogens violation, it is arguably not bound to many of the so-called “requirements” of IEL.[31]

For example, while there is a general consensus that requirements like due diligence or the general principle of prevention are customary and thus required for every state,[32] very few sources actually explain the meaning of those requirements.  Moreover, when they are in fact mentioned in a treaty or convention, they are usually stated simply as an existing international obligation, without any explanation of how to comply.[33]  When one considers how broadly (or narrowly) a concept like “due diligence” or “prevention” could be interpreted, this becomes problematic.  Does due diligence require only common sense preventative measures or does it demand something more?  Does the principle of prevention always require a pre-action EIA?  Are these requirements lessened for developing states?  It is easy to see how such manipulation of meaning could work to both states’ advantage in a dispute.  After all, on Monday morning, the injured state can always speculate as to what the quarterback should have done when fulfilling its due diligence or prevention obligations.  However, the offending state has an equally powerful argument because it is nearly always questionable if a specific action would have truly changed the final score.

While the ICJ has certainly helped define general customary norms of IEL to reduce situations where such questions arise, it is important to recognize that within the ICJ there exists no stare decisis, and thus the court is not bound to follow its own prior opinions should it choose to abandon them.[34]  Despite not having an obligation to abide by its own decisions, the ICJ certainly does not disregard them easily.  Rather, as noted in Dr. Jorge Viñuales’ article, the ICJ tends, with few exceptions, to stick to and develop the law as stated in its prior decisions.[35]  In Viñuales’ article, he portrays this slow but consistent development by dividing the ICJ body of decisions prior to Pulp Mills into what he calls the First and Second Waves of IEL.[36]  The following two Subparts briefly define the First and Second Waves, as they will be referred to throughout the remainder of this Comment.  The third Subpart will address the ILC’s Articles on Prevention and their import for the ICJ when expanding upon IEL concepts.

A.            The First Wave

The First Wave began with the Trail Smelter Arbitration (United States v. Canada) (“Trail Smelter”), in which the ICJ ordered Canada to make reparations to the United States after fumes escaped from Canadian iron and ore smelters into the United States, damaging crops.[37]  The ICJ used the occasion to recognize the legitimacy of granting reparations to states that have suffered transboundary environmental harm, emphasizing that “no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties therein.”[38]

While Trail Smelter represented progress in IEL by virtue of its general recognition that transboundary environmental harm constitutes true harm under ICJ jurisprudence, Viñuales points out that the contours of IEL still remained incredibly unclear.[39]  After all, in Trail Smelter, the ICJ did not explicitly say that a state has an obligation not to allow its territory to be used for acts contrary to the environmental rights of other states, but rather used the phrase in reference to facts that merely implicated the environment.[40]  This nuance should not be overlooked, as it ever so slightly distinguishes between the general responsibilities states have when they directly cause harm to other states versus the more specific responsibility on states to refrain from causing harm to another state’s environment.

While the ICJ could have taken the opportunity to specifically elaborate on what it meant in Trail Smelter in later First Wave contentious cases, including the Corfu Channel Case (United Kingdom v. Albania) (“Corfu Channel”),[41] and the Nuclear Test Cases (Australia v. France) (New Zealand v. France) (“Nuclear Tests”),[42] Viñuales points out that these ICJ decisions were ultimately vague and ambiguous as to whether the Trail Smelter principle could be referenced solely in terms of environmental protection.[43]  For example, in Corfu Channel, Albania was held responsible for damage caused to British warships because Albania failed to warn Great Britain about underwater mines in its waters.[44]  While Corfu Channel was not technically about environmental issues, the ICJ used the occasion to incorporate a slightly different version of the Trail Smelter language by stating that it is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”[45]—language that was almost immediately repeated in Principle 21 of the Stockholm Declaration.[46]  However, as Viñuales explains, whatever value this reaffirmation of the Trail Smelter principle had at this point, it was rendered ambiguous by Nuclear Tests.[47]  In Nuclear Tests, Australia’s Attorney General, as the petitioner, cited the Trail Smelter/Corfu Channel/Stockholm Principle 21 assertion as if it were a customary principle of IEL.[48]  However, because the case was settled, the ICJ never made a full decision on the merits, and the ambiguity remained.[49]

Therefore, the true value of the First Wave was not in what it actually established but rather in what it had the potential to establish.[50]  While the ICJ clearly determined that states have an obligation not to use their territory to cause harm to other states, it never actually stated the principle expressly in favor of environmental protection, although it laid the groundwork to do so in the future.

B.            The Second Wave

What the First Wave introduced, the Second Wave developed.  The first case in the Second Wave that significantly contributed to IEL development was the ICJ’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (“Legality of Nuclear Weapons”).[51]  In this case, the ICJ was presented with the question of whether a state’s use of nuclear weapons in war or other armed conflict would constitute a breach of that state’s international obligations.[52]  The ICJ expressly acknowledged that “the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.”[53]  Principally, Viñuales argues that this statement confirmed what the First Wave set the stage for—that the Trail Smelter/Corfu Channel/Stockholm Principle 21 assertion did in fact deserve deference specifically as a principle of IEL in favor of per se protecting the environment for its intrinsic value and not just for preventing general harm to another state.[54]  Given the fact that the ICJ has repeatedly cited this language verbatim in future decisions, including Pulp Mills, this point should not be underestimated.[55]  Despite this progress, Viñuales expresses his concern for the majority’s choice of the word “corpus.”[56]  He explains that “corpus” is not truly the same thing as a customary principle of international law, specifically because in the immediately preceding paragraphs the court referred not to widespread state practice, nor to opinio juris, but rather to Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration.[57]  This was noted by one of the dissenting (and environmentally progressive) judges, who argued that the principle does “not depend for (its) validity on treaty provisions” but rather is part of customary international law and the “sine qua non for human survival.”[58]

Despite the potential for ambiguity in Nuclear Tests, Viñuales argues that the ICJ confirmed protection of the environment per se as a customary principle of IEL in Gabcíkovo-Nagymaros.[59]  The Gabcíkovo-Nagymaros decision was famous primarily for adopting the ILC’s four-part test for the doctrine of necessity, a potential defense for Colombia in Aerial Herbicide Spraying analyzed briefly in Part III of this Comment.[60]  However, the ICJ made a few important comments in the decision with respect to the reaffirmation of IEL’s customary nature.  First, Viñuales points out that Gabcíkovo-Nagymaros classifies environmental interests as “essential interests” when considering whether a state has either satisfied or violated the doctrine of necessity.[61]  Second, in Gabcíkovo-Nagymaros, the ICJ explicitly references paragraph twenty-nine of Nuclear Tests when citing to “newly developed norms of environmental law,” which Viñuales interprets as definitive proof that a state’s obligation to ensure that activities in its jurisdiction do not harm the environment of other states is now customary IEL.[62]  Thus by the end of the Second Wave, the general obligation to avoid causing transboundary environmental harm was set in stone, but the specifics as to how a state might fulfill that requirement remained up for debate.

C.            The International Law Commission—Too Progressive to Matter for the ICJ, or Right on Target?

The International Law Commission (“ILC”) is a respected body of experts in international law appointed by the United Nations General Assembly in 1947 for the purpose of promoting the “progressive development of international law and its codification.”[63]  Since 1947, the ILC has worked on roughly thirty topics spanning a wide range of issues, and its works are generally regarded as good evidence of existing law, and occasionally as authoritative statements of it.[64]  The primary problem with relying on anything written by the ILC is that in its works, the ILC never distinguishes between codification and progressive development.[65]  Thus, it is sometimes difficult to tell whether the ILC is precisely stating the law “in fields where there already has been extensive State practice, precedent and doctrine” or if it is “preparing draft conventions on subjects . . . to which the law has not yet been sufficiently developed in the practice of States.”[66]  It has been suggested, however, that this absence of a distinction is actually beneficial to tribunals like the ICJ, because it makes reliance on their works possible without requiring a preliminary inquiry into the proposition’s current status.[67]

Indeed, the ICJ has repeatedly taken advantage of the fact that Article 38 of its Statute explicitly allows utilization of “the teachings of the most highly qualified publicists of the various nations” as a “subsidiary means for the determination of rules of law.”[68]  The court has relied on the ILC with greater frequency over the years,[69] something that various states have recognized by citing to ILC statements of the law when making submissions to the court.[70]  Therefore, the ILC’s various articles have become increasingly important, especially because they impose highly specific requirements often considered customary that serve to fill out IEL’s notoriously generalized requirements.

For example, in the Articles on Prevention, the drafters begin their commentary by restating the principles pointed out by Viñuales, citing to Legality of the Threat or Use of Nuclear Weapons as an example of the ICJ’s recognition that prevention of transboundary harm arising from hazardous activities is a corpus of international law.[71]  Moreover, Article 3 continues the generality with a citation to the Trail Smelter/Corfu Channel/Stockholm Principle 21 assertion.[72]  The generality ends there, however, and the specific requirements outlined in the remainder of the Articles on Prevention are incredibly important given the ICJ’s recent acceptance of several of them in Pulp Mills and the potential to reaffirm and expand that acceptance in Aerial Herbicide Spraying.

First, Article 3 sheds light on a state’s substantive obligations under IEL by providing a working definition of due diligence, explaining that a state must first introduce policies and legislation to minimize the risk of transboundary harm, in addition to ensuring that the policies succeed as written and are updated as new technology becomes available to prevent environmental damage more efficiently.[73]  Notably, the drafters explain that this standard of due diligence will be more rigorously applied as the state’s activity becomes increasingly hazardous[74] and as the state’s economic capability increases.[75]

Second, and critical in Pulp Mills and potentially for Aerial Herbicide Spraying, Articles 4, 9, and 10 provide an overview of a state’s obligation to prevent transboundary harm.[76]  Article 4 demands states of origin not only to cooperate with affected states, but also to cooperate in good faith, an idea utilized in Nuclear Tests when the ICJ stated that good faith is a “basic principle” of international relations.[77]  To cooperate in good faith, Articles 9 and 10 require states of origin and states likely to be affected by the proposed activity to “enter into consultations, at the request of any of them, with a view to achieving acceptable solutions” to prevent transboundary harm based on an “equitable balance of interests.”[78]  A state of origin is forbidden from engaging in mere formalities with “no real intention of reaching a solution acceptable to the other States.”[79]  However, neither Articles 9 nor 10 give a state likely to be affected an absolute veto over dangerous projects not prohibited by international law, and a state of origin is allowed to proceed with a project after failed consultations so long as it takes into account the equitable balance of interests of the states likely to be affected.[80]

Finally, Articles 7 and 8 of the Articles on Prevention concern the necessity of states to conduct an EIA whenever a proposed project has a risk of significant transboundary harm.[81]  At the time the Articles on Prevention were written, whether EIAs were a widespread enough practice to be a customary obligation was frequently debated.[82]  EIAs were not a radical idea, and are incorporated in the domestic laws of over a hundred nations as a general precaution against transboundary harm.[83]  Substantively, Articles 7 and 8 followed this trend by requiring states to conduct EIAs prior to authorizing projects or activities with the potential to cause significant transboundary harm, and to communicate the results with potentially affected states.[84]  Moreover, Article 8 forbids states from authorizing the planned activity or project until the earlier of six months or the receipt of a response from the notified state.[85]

Within the commentary to Article 7, the ILC indicated that the obligation to conduct an EIA “corresponds to the basic duty contained in Article 3” or the substantive obligation of due diligence.[86]  The obligations within Article 8 to notify, consult, and cooperate with potentially affected states concerning the results of the EIA is also directly aligned with the ILC’s analysis of a state’s general procedural obligations in Articles 9 and 10.[87]  Thus, the ILC essentially interpreted the requirement of an EIA as a blended requirement of substantive and procedural obligations, an idea that, as discussed in Part II, was utilized by the ICJ in Pulp Mills, and will likely be used again in Aerial Herbicide Spraying.[88]

II.  The Third Wave Begins—Pulp Mills on the River Uruguay

In his article, Viñuales predicted that Pulp Mills and Aerial Herbicide Spraying would provide a rich factual background for the ICJ to begin the Third Wave of IEL in which it could potentially introduce “more specific rights and obligations . . . as part of customary international law, including duties of environmental impact assessment and monitoring of any substantial projects with potential implications for the environment.”[89]  In this Part, this Comment argues that the ICJ absolutely began the Third Wave in Pulp Mills, because for the first time, the ICJ gave teeth to international principles like prevention and due diligence that were introduced—but never explained—in the First and Second Waves.  Moreover, the ICJ utilizes the specific language from the Articles on Prevention while doing so, and is thus subtly changing the work from what was once progressive development into authoritative, customary statements of IEL.

A.            The Background

The River Uruguay is a shared river flowing through Argentina, Brazil, and Uruguay used for drinking water, fishing, tourism, and recreational activities by both states.[90]  Realizing that the river needed to be protected, Argentina and Uruguay entered into a treaty called the Statute of the River Uruguay (“1975 Statute”) “in order to establish the joint machinery necessary for the optimum and rational utilization of the River Uruguay, in strict observance of the rights and obligations arising from treaties and other international agreements in force for each of the Parties.”[91]  The 1975 Statute also imposed obligations of prior notification for any project that might cause significant damage to the River Uruguay, and only if the notified country had no objections to the project would it be allowed to proceed.[92]  Moreover, to monitor the process and promote joint regulation and cooperation, the 1975 Statute established the Administrative Commission of the River Uruguay (“CARU”), a group composed of an equal number of representatives from Argentina and Uruguay.[93]

The dispute between Argentina and Uruguay arose under the 1975 Statute when Uruguay unilaterally commissioned, authorized, and began constructing two pulp mills on the River Uruguay without properly notifying or consulting with Argentina.[94]  Although the former president of Uruguay assured Argentinean officials that the authorization for the first pulp mill project, the Celulosa de M’Bopicua (“CMB”), would not be granted until Argentina received a sufficient EIA on the proposed mill, the official authorization to begin construction was granted on October 9, 2003, the day after the conversation took place.[95]  On October 27, 2003, Uruguay “notified” the Argentinean Embassy about the CMB project by sending two “seriously deficient” documents, one of which was a “Summary Environmental Report” from the company constructing CMB that made “no mention of the potential transboundary impact and [took] no account of the obligations under the 1975 Statute.”[96]  Following the authorization, the CARU meetings fell into deadlock, as Argentinean delegates refused to admit that Uruguay was following the 1975 Statute and Uruguayan delegates refused to admit that they were in violation of it.[97]

Thereafter, in October 2004, the Uruguayan government authorized a Finnish company to build a second pulp mill, the Orion mill, less than seven kilometers from CMB.[98]  This authorization occurred just three days after a meeting of CARU in which the project was not even mentioned to Argentinean delegates, even though the mill is allegedly the “largest industrial project ever envisaged on the shared section of the River Uruguay.”[99]  Over the protests of, and without proper notification or consultation with Argentina, construction of both CMB and Orion began in the second half of 2005.[100]  Although there were further attempts at negotiations after a change in government in Argentina in March 2005, the negotiations failed because the information supplied by Uruguay remained “fragmentary and inadequate” due to “inaccuracies and omissions,”[101] particularly concerning the liquid effluent, solid waste, and gas emissions of the mills.[102]

In its Application Instituting Proceedings (“Application”), Argentina indicated that due to the heavy reliance on tourism and fishing in the Argentinean cities surrounding the mills, its main concerns were the detrimental effects of the foul pulp mill odor on tourism and the risk of damage to fish stocks.[103]  Moreover, Argentina expressed additional concern for alleged “noise” and “visual pollution” caused by the pulp mills.[104]  Based on these alleged damages, Argentina not only argued that Uruguay violated the 1975 Statute binding the two states, but also contended that Uruguay violated procedural and substantive provisions of general, conventional, and customary international law as the 1975 Statute incorporated international obligations by reference.[105]  Specifically, Argentina argued that Uruguay violated both the 1975 Statute and substantive international law when the government failed to take all necessary measures to rationally utilize the River Uruguay and prevent transboundary environmental damage in violation of the principles of prevention and due diligence.  Argentina also alleged violations of the 1975 Statute and procedural international law when Uruguay failed to negotiate with Argentina, and failed to provide Argentina with timely and proper notification, in violation of the principles to inform, notify, and cooperate.[106]  Finally, Argentina emphasized that because Uruguay’s procedural violations were inextricably linked to its substantive violations, a “breach of the former entailed a breach of the latter.”[107]

B.            The Decision

First, because Article 60 of the 1975 Statute stated that “[a]ny dispute concerning the interpretation or application of the . . . Statute” unable to be settled by negotiations may be submitted for decision to the ICJ, Argentina and Uruguay agreed that the ICJ had jurisdiction over the case.[108]  However, the ICJ interpreted Article 60’s language narrowly and refused to recognize any claim that could not reasonably be interpreted as deserving relief under the 1975 Statute.[109]  Thus, because Article 36 of the 1975 Statute only forbade the states from engaging in projects that would change the ecological balance in the river, the ICJ concluded that Argentina’s claims of noise and visual pollution and the impact of the bad odor on tourism were all outside of its jurisdiction, since technically these damages were not limited to protection of biodiversity in and closely around the water.[110]

On the merits, the ICJ delivered its decision in the same way it was presented by Argentina in the Application—by dividing its response into the alleged procedural and substantive violations of the 1975 Statute.  First, the court rejected Argentina’s assertion that the procedural and substantive violations were so inextricably linked that a violation of one entailed a violation of the other.[111]  While the court recognized the existence of a “functional link” between them in the respect that if a state fully complies with its procedural obligations, it is unlikely that a substantive violation will develop, the 1975 Statute and common sense do not necessarily entail this result.[112]  For example, as was the case in Pulp Mills, a state can violate its procedural obligations, but if the state “subsequently abandons the implementation of its planned activity” such that the substantive violation never occurs, it cannot be found in violation of something it did not do.[113]

Next, the court considered the alleged procedural violations.[114]  Argentina specifically contended that Uruguay violated Articles 7 through 12 in the 1975 Statute, which generally mirror a state’s customary international obligations to cooperate, notify, and inform states that might be prospectively injured from a proposed project capable of producing transboundary harm.[115]  While both parties agreed at the outset that the CNB and Orion mills were of sufficient importance such that Uruguay was obligated to generally inform CARU of the projects,[116] they disagreed as to whether Uruguay had to inform CARU specifically about the extraction and use of the river water for industrial purposes by the Orion mill,[117] and as to the content and timeliness of the required notification.[118]

The ICJ began by explaining that the international duties to inform, notify, and cooperate are grounded in principles of prevention and due diligence, citing to the ever-so-present notion that it is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” to describe those principles.[119]  As if this assertion was not quite enough to make the point, the ICJ continued to specifically say that a state is thus obliged to use all means at its disposal to avoid activities that take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of the state.  The Court then noted that this obligation is “part of the corpus of international law relating to the environment.”[120]

Applying this principle, the ICJ found that Uruguay had an obligation to inform CARU in an EIA as soon as Uruguay discovered that its project might cause significant damage to Argentina.[121]  Moreover, Uruguay could not merely inform CARU of the potential environmental danger at its own convenience, but rather had an international obligation to inform prior to its authorization to begin constructing the mills.[122]  In this case, because Uruguay authorized both the CMB and Orion mills prior to giving CARU information—other than two insufficient documents pertaining to the CMB mill only[123]—and ignored requests from CARU for additional information prior to their unilateral authorization,[124] its noncompliance with its procedural obligations under international law and Article 7 of the 1975 Statute was glaringly obvious.

Although Uruguay argued that it had no obligation under either the 1975 Statute or procedural international law to provide Argentina with an EIA, the ICJ flatly disagreed, concluding that an EIA was “necessary” to fulfill the general international requirements of notification and cooperation so that Argentina could fully assess the situation and engage in reasoned negotiations with Uruguay.[125]  Specifically, under the 1975 Statute, the ICJ held that Uruguay was plainly obligated to conduct an EIA containing a detailed description of the main aspects of work and the technical data necessary to assess the project’s impact.[126]  Thus, Uruguay truly failed to comply with this first step since the Summary Environmental Report it sent Argentina was far from a detailed description of the pulp mill projects.[127]  Regardless of the insufficiency of the initial report, Uruguay was supposed to give Argentina 180 days to initially respond to its proposed project under the 1975 Statute,[128] and only if Argentina had no objections would Uruguay be allowed to proceed.[129]  Therefore, because Argentina objected to the insufficiency of the environmental document it received and sent Uruguay an outline of its concerns and recommendations,[130] Uruguay was obligated to reserve an additional 180 days to negotiate a compromised solution.[131]  Because Uruguay neither completed a proper EIA and delivered it to Argentina prior to authorization so that the parties could engage in this process, nor allotted Argentina the response time and negotiation time it was entitled to under the 1975 Statute with respect to the insufficient Summary Environmental Report, the court held that Uruguay “breached its procedural obligations to inform, notify and negotiate.”[132]

Finally, the ICJ considered Argentina’s alleged substantive violations of both general international law and Articles 1, 27, 35, 36, and 41 of the 1975 Statute.[133]  The court declined to hold Uruguay responsible for causing any substantive harm.[134]  Practically speaking, this was because Argentina had yet to point to any substantive harm other than the noise, smell, and odor of the mills, all of which were previously determined not to be covered by the 1975 Statute since it was not literally pollution “in” the river, and was thus outside of the ICJ’s jurisdiction.[135]  Because Argentina likely recognized the absence of these specific protections in the 1975 Statute, it tried to work around it by arguing that under Article 1, Uruguay violated the object and purpose of the treaty to engage in “optimum and rational utilization” of the river when it caused the alleged specific harms.[136]  However, the court concluded that “optimum and rational utilization” was a reference not to specific rights or obligations but rather to a “balance between economic development and environmental protection that is the essence of sustainable development.”[137]  Thus, at least substantively speaking, even though it halted the projects, Uruguay was entirely within its rights to research the construction of the pulp mills in the first place to further its economic development so long as it proceeded sustainably.

The court spent the majority of the remaining decision on the alleged substantive violations, considering whether or not Uruguay was in violation of Article 41 of the 1975 Statute.[138]  Article 41 binds Argentina and Uruguay to protect, preserve, and prevent pollution in the River Uruguay’s aquatic environment and instructs the states to do this by adopting rules in accordance with “applicable international agreements.”[139]  The ICJ immediately interpreted Article 41 as an expression of the customary international obligation to act with “due diligence.”[140]  While the ICJ could have stopped with this assertion, the court went on to define the general due diligence principle, explaining that it entails “not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement . . . such as the monitoring of activities.”[141]

The ICJ then explained that EIA preparation is one specific requirement within this definition of due diligence, concluding that “due diligence, and the duty of vigilance and prevention which it implies would not be considered to have been exercised” in a situation like Uruguay’s in the absence of an EIA on the project’s anticipated effects.[142]  Thus, the ICJ essentially elevated EIA preparation to a customary IEL obligation—noting in language that will almost certainly be repeated in future contentious cases—that the EIA “has gained so much acceptance among States that it may now be considered a requirement under general international law” anytime there “is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context.”[143]  In the next paragraph, the ICJ admittedly narrowed this new requirement’s breadth by declining to elaborate on the content or scope of a sufficient EIA.[144]  Instead, the Court merely acknowledged that neither the 1975 Statute nor general international law define the contents of an EIA, and while some conventions like the Espoo Convention do in fact outline specific requirements, neither Argentina or Uruguay are parties to it.[145]

After engaging in an extensive analysis of whether Uruguay violated the due diligence obligation by virtue of the location of the mills,[146] the mills’ effluent discharges into the water,[147] and the mills’ effect on biodiversity in and around the river,[148] the court still ultimately concluded that Argentina failed to provide conclusive evidence that Uruguay had not acted with the requisite degree of due diligence, even though Uruguay admittedly did not prepare an EIA prior to authorization.[149]  Regardless of the procedural hiccups, the ICJ pointed out that there was no conclusive proof that the mills either had “deleterious effects” on the river or had upset the “ecological balance of the river,” and consequently refused to hold Uruguay responsible for any alleged damage to Argentina.[150]

C.            What Pulp Mills Means

Pulp Mills is loaded with developments that could have reverberating effects for not only Aerial Herbicide Spraying, but also future ICJ cases generally.  First, the ICJ’s discussion of substantive and procedural international law was a unique development in terms of the organization of IEL.  For example, for the first time the court clarified that while procedural duties to inform, notify, and cooperate and substantive duties like due diligence and prevention “complement one another perfectly,” they should be analyzed separately.[151]  This analysis is reminiscent of that found in the Articles on Prevention, which separated its analysis of substantive international obligations in Article 3 from those of a procedural nature in Articles 9 and 10.[152]

Moreover, because the court let Uruguay off the hook without paying damages,[153] it demonstrated that damages are going to be unrecoverable in the future without present violations of substantive international law, even where blatant procedural violations exist.  However, while violation of procedural obligations alone will not qualify an injured state for damages, under the ICJ’s new analysis, a state’s compliance with procedural obligations will significantly increase the odds that they have substantively complied.[154]  Practically (and cynically) speaking, this hierarchy makes compliance with procedural obligations wise, but somewhat less important.  In reality, a state likely will not have to answer for its failure to cooperate with other states—beyond a slap on the wrist—if that state does not also inflict substantive harm.  On a brighter note, the division, for the first time, clarified how the ICJ will enforce specific areas of IEL, which is the first indicator that the ICJ is fulfilling Viñuales’ predictions and moving full force into the Third Wave.[155]

Second, the ICJ made two notable developments during its discussion of Uruguay’s procedural violations of international law.  First, while the ICJ could have grounded its analysis of Uruguay’s failures to inform, notify, and cooperate under the 1975 Statute and left it at that, the court instead went out of the way to talk about prevention and due diligence, a move that essentially functioned to “add content to what might have been an otherwise straightforward assessment of Uruguay’s obligations under conventional law.”[156]  Furthermore, not only did the court just mention the principles of due diligence and prevention, it actually strengthened those principles by imposing a new requirement on states to use all the means at their disposal to avoid causing transboundary harm.[157]  The ICJ then stated that this strengthened obligation is the one recognized as a corpus of international law, not the weaker principle defined in the First and Second Waves that states are simply obligated to refrain from using their territory to harm other states.[158]  Although this language may seem like a slight nuance, it could have big consequences in future decisions.  In the right case, the difference between the “obligation to refrain from” and the obligation to “use all the means at their disposal” could be the difference as to whether a state is held responsible for transboundary environmental damage or a state is off the hook.

Next, and as discussed in more detail below in the substantive analysis, there is no question that the most exciting development in Pulp Mills for the international community is the court’s discussion of EIAs in its analysis of both procedural and substantive international obligations.  During the procedural portion of the EIA discussion, the court outlined both the timeline and the process under the 1975 Statute to create EIAs and communicate the results with neighboring states.[159]  Despite this focus on the 1975 Statute, the discussion is notable because the court accepted a procedure that is exceptionally similar to Article 8 of the Articles on Prevention.  Both the 1975 Statute—as it is discussed in Pulp Mills—and the Articles on Prevention require provision of EIA results to a potentially affected state prior to action, a waiting period after the results are communicated before any action can be taken, and upon objection of the state, a set time period for negotiations to reach a mutually acceptable method to proceed.[160]  At this point, it is likely that the 1975 Statute and Article 8 EIA process is too technically specific to be adopted as a requirement of general international law in the Third Wave.  However, the court’s indication that this process is acceptable, if followed, gives states a guideline as to how they might proceed and perhaps opens up the possibility that the ICJ might consider adopting a specific process similar to this one in future contentious cases.

Third, during the ICJ’s analysis of substantive international law, the Court made two additional developments worth noting.  First—and perhaps a runner-up to the EIA in important progressions for IEL within Pulp Mills—the ICJ included a definition of a state’s due diligence obligation, explaining that states must both enact appropriate regulations and ensure their subsequent enforcement.[161]  Notably, this is not just any definition, but is exactly the definition provided in Article 3 of the Articles on Prevention.[162]  This definitional provision is important because it finally provides some guidance for the due diligence concept, taking a step toward relieving IEL of the generality of the concept and its capability for manipulation that plagued the First and Second Waves.  As Viñuales predicted, IEL has moved beyond the obvious conclusion that to exercise due diligence, states should avoid using their territory to cause transboundary harm to other states, and has instead provided two concrete requirements to guide states and the IEL community.[163]  The definition is also notable because although the ICJ does not expressly cite to the ILC in its opinion, the Articles on Prevention are clearly referenced.  This demonstrates the ICJ’s willingness to look to the ILC for guidance and adopt its language as authoritative statements of customary law, which significantly increases the importance of the articles that are not customary law.

Next, as Viñuales predicted would happen in the Third Wave, the ICJ sweepingly labeled EIAs as a customary requirement of due diligence.[164]  Despite the force of this statement, its actual value in future cases may be negligible based on the limiting statements that followed and the ultimate decision in Pulp Mills.  As mentioned above, immediately after declaring that EIAs are customary norms of IEL, the Court followed with the observation that “general international law [does not] specify the scope and content,” and that it will be within each state’s prerogative to determine either through its “domestic legislation or in the authorization process for the project the specific content of the [EIA] required in each case.”[165]  Thus, the current substantive requirement to perform an EIA is realistically only a shell.  While the recognition that EIAs are an obligation is a step in the right direction, providing clarity as to what due diligence entails, the important part remains unclear; if there is no requirement that a state’s EIA be sufficiently reliable, then what exactly is the point?  The state can exercise its discretion to complete an inadequate EIA just to facially satisfy the requirement.  Thus, the ICJ has seemingly replaced the formerly manipulable obligation of due diligence with a narrower, but still manipulable obligation to create an EIA, because both the injured state and the offending state are able to Monday morning quarterback as to the sufficiency of an EIA in question.

This interpretation is reinforced by the outcome in Pulp Mills. In Pulp Mills, Uruguay failed to deliver a timely EIA to Argentina.[166]  While Uruguay did deliver the “Environmental Summary Report” for the CMB mill, the report was completed by the economically involved company in charge of the mill’s construction, and was deemed insufficient by Argentinean representatives in CARU.[167]  Despite this failure, the ICJ found that Uruguay had satisfied its due diligence obligations.[168]  Thus, if Uruguay can avoid liability with an inadequate EIA for the CMB mill and no EIA for the Orion mill—in the very case where the EIA requirement was first promulgated—it is a safe conclusion that at least for now, the ICJ is not going to vigorously enforce this customary requirement for the purpose of awarding damages.

III.  The Third Wave Continued?  The Potential Repercussions for Aerial Herbicide Spraying after Pulp Mills

A.            The Case Against Colombia

Ecuador’s Application to the ICJ begins by acknowledging that the majority of the world’s coca and a large amount of the world’s opium poppy comes from Colombia.[169]  Despite this reality, Ecuador emphatically argues that combating the problem by aerially spraying toxic herbicides at, near, and over the border of Ecuador is not the answer, and is a violation of Ecuador’s rights under “customary and conventional international law.”[170]

First, Ecuador points out that Colombia ignored its own experts’ warnings by aerially spraying a compound containing glyphosate over illegal drug crops.[171]  According to Ecuador, as early as 1984, the Instituto Nacional de Salud (“INS”), Columbia’s national health institute, convened solely to consider whether aerial spraying would be a safe option to combat drug production.[172]  Far from approving its use, the INS concluded that glyphosate was “not recommended” and the acute toxicity “little known.”[173]  Additionally, in the areas of the world where glyphosate is utilized as a commercial weed killer, Ecuador notes that it is accompanied by severe warnings that it should only be applied by protected handlers and that users must “AVOID DRIFT” because of its potential to cause substantial harm not only to desirable plants and crops but also to humans if it is inhaled or if it comes in contact with the eyes.[174]  Thus, from the very beginning, Ecuador alleges that Colombia was aware of the potential harm, but chose to unilaterally authorize the dispersion of herbicides containing glyphosate both on and over the Ecuadorean border.

In addition, Ecuador claims that Colombia has refused to disclose the herbicide’s exact chemical composition.[175]  While the Ecuadorean government did learn from various press releases that the primary active ingredient is glyphosate, this is insufficient knowledge to form an opinion about the herbicide’s consequences, as glyphosate is notoriously more dangerous in combination with specific chemicals.[176]  Moreover, Ecuador notes that it is particularly concerned because the compound Colombia is rumored to be using contains a chemical called Cosmoflux 411F, which is manufactured solely in Colombia and has never been extensively studied, presumably because Colombia refuses to release the “proprietary” chemical composition.[177]  Because testing on glyphosate combination compounds have traditionally been conducted in temperate climates, Ecuador points out that its tropical climate is at even higher risk, especially since the area maintains a “mega-diverse” biodiversity classification.[178]

Ecuador first contacted the Colombian government on July 24, 2000, to express its concern about the impact of the herbicide combination on Ecuador’s people and environment.[179]  However, Ecuador explains that “from the start, Colombia has been . . . clear that it has no interest in addressing Ecuador’s concerns.”[180]  Colombia declined to give information to Ecuador upon its request, responding that, regardless of what Ecuador thinks, the aerial spraying is actually protecting them because “Plan Colombia is, precisely, the most effective method for protecting the fraternal country of Ecuador from the perverse effects of narco-trafficking and armed conflict.”[181]  Moreover, Colombia refused Ecuador’s requests to observe a ten kilometer no-spray zone away from Ecuador’s border in both July 2001 and September 2003, and upon receiving requests from Ecuador to negotiate a solution in April 2002, replied that it would not abandon an “irreplaceable instrument for solving the Colombian conflict and alleviating the danger that it presents to other countries.”[182]  Far from admitting that it was potentially in violation of international law, Colombia instead claimed protection under the precautionary principle, which allows states experiencing threats of serious or irreversible damage to use cost-effective measures to prevent environmental degradation regardless of a lack of full scientific certainty about those measures.[183]

Although Colombia appeared willing to cooperate on a few occasions, the situation never meaningfully changed.  For example, although Colombia agreed both in late 2003 and in early 2007 to set up joint scientific and technical commissions with Ecuador to examine the effects of aerial spraying in Colombia, these commissions quickly fell into deadlock and disbanded each time.[184]  Although Colombia finally agreed to a ten kilometer no-spray zone in December 2005, it resumed spraying directly on the border in December 2006.[185]  At this point, Ecuador submitted the Application to the ICJ, specifically alleging that Colombia failed to abide by its international obligations of prevention and precaution through its actions.[186]

B.            Aerial Herbicide Spraying after Pulp Mills: The ICJ’s Potential Analysis

Aerial Herbicide Spraying provides a perfect opportunity for the ICJ to utilize the two-step analysis process established in Pulp Mills for both procedural and substantive violations of international law.  It is likely that the procedural analysis in Aerial Herbicide Spraying will ultimately be very similar to Pulp Mills because in both cases the procedural violations are quite egregious.  Just as Uruguay violated its procedural duties to inform, notify, and consult Argentina by failing to communicate the dangers of the pulp mill projects prior to authorization, Colombia did not even mention aerial spraying to Ecuador prior to authorizing herbicide use on its border.  Moreover, Colombia blatantly ignored Ecuador’s concerns.  Instead of recognizing Plan Colombia as a problem, Colombia argued that it was protecting the Ecuadorean people by inhibiting drug production.[187]  Finally, just as Uruguay failed to draft and communicate an acceptable EIA to facilitate cooperation and negotiation between the states, there is no evidence that Colombia internally developed anything resembling an EIA; to the contrary, evidence indicates that it used the herbicide against its own experts’ warnings.[188]  In the unlikely event that Colombia did perform an EIA, it has yet to communicate it with Ecuador, even though it has been ten years since the spraying commenced.  As seen in Pulp Mills, this constitutes a procedural violation in and of itself.

The procedural analyses in the two ICJ cases could differ if the ICJ chooses to further develop its functional link analysis between procedural and substantive international obligations.  As discussed in Part II, the ICJ’s functional link analysis logically implies that compliance with procedural violations will increase the likelihood that a state complies with its substantive obligations.[189]  However, Aerial Herbicide Spraying demonstrates the opposite proposition, as it involves severe substantive harm directly resulting from Colombia’s procedural failure to cooperate.  For example, because knowledge of the herbicide’s composition is in the sole possession of Colombia, the only way that Ecuador can conduct scientific tests on the compound—protecting its people and environment—is if Colombia cooperates and shares the information.  Not only is Colombia hoarding the chemical composition citing its “proprietary” nature, effectively disallowing Ecuador from running the tests that the Colombian government refuses to do, Colombia also refuses to respect a small ten kilometer no-spray zone on the Ecuadorean border.[190]  Because this procedural failure to cooperate has largely caused the extreme substantive harm inflicted upon Ecuador, the ICJ should find Ecuador’s procedural case stronger than Argentina’s.  If nothing else, it is clear that Colombia has not used “all the means at its disposal to avoid activities” in its territory causing significant harm to the environment of other states, and thus a judgment that it has violated procedural international law is nearly certain.[191]

While the procedural analysis in Pulp Mills may be similar to Aerial Herbicide Spraying, the two cases are ultimately very different because whereas the substantive harm to Argentina was deemed undetectable, the substantive harm inflicted on Ecuador is undeniable.  In Pulp Mills, Argentina lost the case because it was essentially inconclusive whether the mills were actually causing effluent discharge increases in the River Uruguay or harming biodiversity in and around the river.  Here, Ecuador is able to cite to specific impacts in several named communities over specific time periods spanning from 2000 to 2007, in addition to citing to several paragraphs’ worth of generalized adverse effects across the entire northern border.[192]  Thus, unlike Uruguay—which avoided paying damages because it committed procedural, but not substantive violations—it is unlikely that Colombia can avoid restoring Ecuador for the obviously inflicted substantive harm.

The analysis in Aerial Herbicide Spraying could also prove to be interesting because of the potential for discussion on the newly defined due diligence principle.  If solely focusing on the environmental risk and harm inflicted by the aerial use of herbicides, it seems clear that even if the definition of due diligence remains limited to both the adoption of appropriate rules and measures and a certain level of vigilance and monitoring to ensure their enforcement as provided in Pulp Mills—Colombia has failed to meet it.  This leads to two further considerations: (1) the possibility that the ICJ could make this definition weaker or stronger at its discretion, and (2) the fact that the ICJ will have to factor in that Colombia is adopting rules and monitoring enforcement, albeit to combat drug trafficking and not environmental harm.  As to the first consideration, while the ICJ could follow its recent precedent in Pulp Mills, there is no guarantee given the lack of stare decisis.[193]  As demonstrated by Viñuales, however, the ICJ not only tends to follow precedent despite not being bound to do so, but also tends to build upon it during each respective IEL wave.[194]  Thus, if the ICJ chooses to follow the Third Wave theme that it seemingly began in Pulp Mills, it is likely that the ICJ will again defer to the Articles on Prevention and expand due diligence requirements.  This would be the perfect set of facts to hold that the standard of due diligence shall be what is “appropriate and proportional to the degree of risk of transboundary harm in the particular instance,”[195] or to create an increasingly intertwined functional link between procedural and substantive obligations by holding that due diligence necessarily requires “cooperation.”[196]  Neither of these additions will change the likely overall result that Colombia has violated its due diligence obligations, but will be valuable additions to the overall scheme of due diligence requirements.  Given that the ICJ went out of its way to “add content to what would have otherwise been a straightforward application” of law in Pulp Mills, it is not so farfetched that it would choose to do so again in Aerial Herbicide Spraying, even if it is not essential to the disposition of the case.[197]

As to the second consideration, the ICJ has not been presented with a case quite like this one in which it has to choose between the greater of two evils, environmental degradation or drug trafficking.  Perhaps the Court’s answer will lie in the failure of Plan Colombia’s aerial spraying program to meaningfully inhibit terrorist groups and the drug trade.  After Plan Colombia’s initial jumpstart from a 1.3 billion American aid package, critics argued that nothing in Colombia has changed, and is in fact almost worse.[198]  The left-wing terrorist groups Plan Colombia was enacted to destroy are as strong as ever, and according to the governor of one Colombian province “are like malaria, evolving to resist eradication and killing with efficiency,” and while they “may have lost their chance for victory,” they have not lost “their ability to cause suffering.”[199]  Additionally, it is debatable whether aerial spraying has slowed the flow of cocaine from Colombia at all.[200]  For example, in 2007, the United Nations reported that coca cultivation was up twenty-seven percent in 2007,[201] allowing Colombia to remain “by far the world’s largest cocaine producer and the supplier of 90 percent of the cocaine consumed in the United States” as of 2008.[202]  Critics also point to the fact that the “price, purity, and availability of cocaine in the United States has remained unchanged,” and thus the billions of dollars that the United States has spent to “attack the drug problem at the source” is money down the drain.[203]  Of course, as there are always two sides to every story, not everyone agrees.[204]  But because rebel groups and drug trafficking are still thriving eleven years after the introduction of Plan Colombia, and because there simply has to be another option to combat drug trafficking besides aerial spraying, the ICJ is likely to choose environmental and human rights protection over drug trafficking, at least for this day in court.

Lastly, because EIAs are now considered a substantive and a procedural requirement under general international law, the ICJ will almost certainly address them, and perhaps use Aerial Herbicide Spraying as an opportunity to clarify certain statements made in Pulp Mills.  As discussed in Part II, although the ICJ officially labeled EIA preparation as a customary requirement in Pulp Mills, the actual value of the requirement may be negligible as it did not define either the scope or contents, explaining that it was each state’s prerogative to determine the content according to domestic laws, and approved Uruguay’s EIA despite its utter inadequacy.[205]  On the facts of Aerial Herbicide Spraying, the ICJ is presented with a second chance to provide a bottom floor as to an EIA’s minimum requirements.  Like Uruguay, Colombia does not appear to have created an adequate EIA, if it created one at all. For example, according to Ecuador, Colombia held a meeting of its INS prior to authorizing Plan Colombia in which its own experts recommended against the use of aerial herbicides.[206]  Presumably the experts present prepared domestic studies to come to that conclusion, even though the results were not shared with Ecuador.  Thus, acknowledging that Colombia’s failure to communicate any research with Ecuador is a procedural and not a substantive violation, will this clearly deficient research be sufficient to meet the substantive EIA requirement set forth in Pulp Mills?  As the law stands now, the answer could truly go either way—after all, if one “seriously deficient” document in Pulp Mills was enough to satisfy the substantive part of the EIA requirement, that is not all that different than the present case.  While it may not contribute a great deal overall to IEL to hold that the environmental document potentially prepared by Colombia in the context of Aerial Herbicide Spraying was insufficient, the import of such a holding comes from the value that it could have for increasingly specific Fourth Wave cases down the road.  Clearly, most states would draft at least something and share it with their neighboring states.  Setting a bottom line now is the first step toward setting a stricter, more specific bottom line down the road such that one day the EIA requirement will be more than a shell and possess some teeth of its own.

C.            Colombia’s Citation to the Precautionary Principle

In defense of its actions, Colombia has cited the precautionary principle in diplomatic exchanges with the Ecuadorean government.[207]  The precautionary principle, as exemplified in Principle 15 of the Rio Declaration, gives the following instruction: “In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities.  Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”[208]  While the precautionary principle is oft used and is certainly justified in appropriate circumstances, Colombia’s attempt to ground its actions in the principle in this case constitutes a misinterpretation of the principle and its purpose.

The precautionary principle is best understood in light of its rationale.  The rationale’s premise is that policy makers generally rely on the best available scientific data when developing effective regulatory policies.[209]  However, because scientific uncertainty is rampant, and because laws still need to be made, the precautionary principle allows states to act notwithstanding scientific uncertainty, but only while erring on the “side of excess environmental protection.”[210]  Thus, the precautionary principle is appropriately cited in the aftermath of a disaster when a state quickly reacts by choosing a method that has not undergone extensive scientific testing because the danger of allowing the disaster to fester is outweighed by the potential danger of the method to combat it.[211]  To illuminate this point, consider an oil spill.  Common sense tells us that oil spills are disasters that need immediate attention.  If a state reacts to an oil spill by using a chemical dispersant that has not been extensively tested, but has perhaps been used by other states in similar situations or does not contain ingredients known to be toxic, the state would be justified under the precautionary principle to use it.[212]  However, common sense also tells us that if the same state used a chemical dispersant with known toxic components, this is simply foolhardy behavior and the state will not be shielded by the precautionary principle.  The precautionary principle does not authorize ignoring the obvious, and a state with unclean hands cannot count on it for protection.

In this case, Colombia is essentially arguing that coca production, the drug trade, and guerilla activity constitute a “threat of serious or irreversible damage” that Colombia has chosen to combat by aerially spraying an unrevealed and untested herbicide over extended periods of time.[213]  Quite frankly, the precautionary principle was not intended to function in this type of situation.  The precautionary principle can be utilized by states when neither time nor scientific evaluation “allow the risk to be determined with sufficient certainty,” this is not the case in Colombia.[214]  While Columbia admittedly has a serious problem, it is not one that has suddenly descended on the government.  Rather it has plagued the country for decades.[215]  Far from being a case where scientific evaluation does not allow the risk to be determined with sufficient certainty, Colombia has had ten years from the commencement of Plan Colombia to run the requisite tests on the herbicide to determine its ramifications.  However, Colombia has either chosen not to test the herbicide or is hiding the results from the international community.  Furthermore, Colombia is purposefully withholding a complete list of the herbicide’s chemical ingredients such that no other state can test it.[216]  Thus, while coca production and guerilla terrorism are disasters that necessitate immediate government action, the precautionary principle does not provide a state with the justification to combat a longstanding problem with an untested solution over an extended period of time simply because the state feels that it is the “most effective method” to achieve its goals.  This is particularly so when it is primarily the state’s own unclean hands that have caused the scientific uncertainty to exist.[217]

D.            Doctrine of Necessity Defense

In Aerial Herbicide Spraying, the best defense that Colombia will have is that the drug trade and guerilla activity created a situation of necessity that demanded a response and excused their procedural and substantive internationally wrongful acts.  However, this Comment concurs with other scholars who have predicted that this defense will be an unsuccessful last resort.[218]

In Gabcíkovo-Nagymaros, the ICJ expressly adopted the doctrine of necessity as it appears today in Article 25 of the ILC’s Articles on State Responsibility.[219]  Under Article 25, in the event that a state commits an internationally wrongful act, the wrongfulness of it may be precluded if the act was (1) the only way for the state to safeguard, (2) an essential interest, (3) against a grave and imminent peril, and (4) the act does not seriously impair an essential interest of the state or states toward which the obligation exists, or of the international community as a whole.[220]  Although the Court accepted this four-part test, it also noted that the “ground for precluding wrongfulness can only be accepted on an exceptional basis,” and that the “state concerned is not the sole judge of whether those conditions have been met.”[221]

Colombia can likely produce a strong argument for the second and third prongs of the test.  According to Article 25, in the second prong, possible interests worth protecting include “preserving the very existence of the State”[222] and “ensuring the safety of a civilian population,”[223] both of which are pressing Colombian interests in the present situation.  Moreover, under the third prong, both of these essential interests are subject to grave peril due to the violent, narcotic-funded guerilla groups like FARC and ELN that have terrorized the country for years.[224]  While it could be argued that these interests are not facing imminent peril as Colombia has been fighting these groups for decades, it is truly irrelevant what the Court decides on this issue.  Colombia absolutely cannot meet the first prong of the doctrine, and likely cannot meet the fourth prong either.

Under the first prong, the chosen action to safeguard the named essential interest must be the “only way” and the only means available to the state.[225]  This requirement is not taken lightly, and the plea for necessity “is excluded if there are other (otherwise lawful) means available, even if they may be more costly or less convenient.”[226]  One does not have to speculate very long to come up with other routes that Colombia could have chosen to combat the drug trade rather than aerially spraying toxic herbicides over coca and poppy plantations.  Indeed, former Latin American presidents noted in a 2009 interview that we must “acknowledge the disastrous consequences of current policies” to combat drugs and utilize other options, including education to decrease drug consumption, and aggressive combat against organizational crime.[227]  While all of these options may have admittedly been more difficult to implement than spraying herbicides out of planes, there is no denying that they were lawful alternative methods to combat drug production in Colombia and its effects.  These methods are advocated by other heads of state in Latin America that are dealing with equally destructive drug cartels in their respective states.[228]

Furthermore, under the fourth prong of the doctrine, the ICJ will again be presented head on with an opportunity to weigh Ecuador’s environmental and human rights interests against Colombia’s rights to preserve its government and ensure the safety of its civilian population.  To win on this argument, the ILC states in Article 25 that the interest deemed superior must outweigh all other considerations, and “not merely from the point of view of the acting State, but on a reasonable assessment of the competing interests.”[229]  Thus from the outset, Colombia will have a very high burden to demonstrate that its interest in protecting its people conclusively outweighs Ecuador’s interest in ensuring the quality of its environment and its people’s health and safety, particularly as aerial spraying is surely not the only means to combat drug trafficking.[230]  Because these two issues are arguably of equal importance, and because aerial spraying is causing health problems not only to Ecuadorean people and the environment, but presumably to Colombian citizens as well, it seems impossible that Colombia could demonstrate its interests outweigh Ecuador’s.  Thus, the ICJ will almost certainly conclude that Colombia failed to show the requisite state of necessity to excuse its commission of internationally wrongful acts, and will hold Colombia responsible for its procedural and substantive internationally wrongful acts.

Conclusion

In his book Showing Teeth to the Dragons, Harvey Kline notes that Colombia’s culture of violence is the “most intractable problem” within Colombia’s borders.[231]  He then repeats a query asked by others who have studied Colombia before him—what would it take to “convince Colombians that violence [is] not the way to solve problems after . . . an entire generation of people . . . saw violence as normal?”—a proposition that Kline believes is just as true in today’s world as it was when the question was first posed in 1962.[232]  It is undeniable that Colombia’s predicament is tragic.  Indeed, each day that Colombia survives, scholars have likened the state to a “sick person who just got out of intensive care, happy because he did not die, but who is still far from leaving the hospital and may relapse at any moment if he does not take measures to build on his successes.”[233]  However, at the end of the day, Aerial Herbicide Spraying is not about the problems that Colombia cannot seem to fix.  Rather, it comes down to a simple choice—the drug trade and suffering people, or the environment and suffering people?

Based on the ICJ’s trend throughout the First, Second, and now the Third Wave, I believe the answer is clear.  The environment is going to prevail.  The ICJ’s increasing specificity throughout all Waves, its newfound willingness to follow ILC recommendations, and its decision in Pulp Mills all point toward a favorable result for Ecuador.  However, the value of Aerial Herbicide Spraying extends beyond its arrival at a correct result.  In combination with Pulp Mills, Aerial Herbicide Spraying exemplifies a new direction for the ICJ—a direction towards clarity, specificity, and a world in which states cannot Monday morning quarterback their way out of international obligations quite as easily as they have in the past.  Viñuales’ Third Wave has arrived, and one can only hope that the waves will keep on coming.

 


[1]. Background Note: Colombia, U.S. Dep’t of State, http://www.state.gov
/r/pa/ei/bgn/35754.htm (last visited Nov. 10, 2011).

[2]. Id.

[3]. Marco Palacios, Between Legitimacy and Violence 1 (Richard Stoller trans., 2006) (recognizing four national civil wars in Colombia during 1876–77, 1885–86, 1895, and 1899–1902 respectively); see also id. at 135 (describing the time period between 1945–74 as “La Violencia,” defined as a “popular and largely peasant convulsion . . . that never really went away”); id. at 190–213 (explaining the rise to power of leftist guerilla groups, the violent crimes and torture inflicted by the groups, and the increasing prevalence of drug cartels connected to these groups in Colombia).

[4]. Harvey F. Kline, Showing Teeth to the Dragons 2 (2009).

[5]. U.S. Dep’t of State, A Report to Congress on United States Policy Towards Colombia and Other Related Issues (2003), http://www.state.gov/p
/wha/rls/rpt/17140.htm.

[6]. Simon Romero, Despite Rebel Losses, Cocaine Sustains War in Rural Colombia, N.Y. Times, July 27, 2008, at A1.

[7]. U.S. Dep’t of State, supra note 5.

[8]. Kline, supra note 4, at 45–48; see also U.S. Dep’t of State, supra note 5 (explaining the rationale for the Colombian aid package is the United States’ strong support of “combating the narcotics industry, promoting peace, reviving the economy, improving respect for human rights, and strengthening the democratic and social institutions of the country”); Luz Estella Nagle, U.S. Mutual Assistance to Colombia: Vague Promises and Diminishing Returns, 23 Fordham Int’l L.J. 1235, 1269 (2000) (noting that the United States’ initial plan pledged 7.5 billion dollars to Plan Colombia).

[9]. Application Instituting Proceedings, Aerial Herbicide Spraying (Ecuador v. Colom.), 2008 I.C.J. Pleadings 10, ¶ 13 (Mar. 31, 2008) [hereinafter Aerial Herbicide Spraying Application].

[10]. Id. ¶ 3.

[11]. Id.

[12]. Id.

[13]. Id. ¶ 4.

[14]. Id.

[15]. Id. ¶ 5.

[16]. Id.

[17]. See Aerial Herbicide Spraying Application, supra note 9.

[18]. Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 135 (Apr. 20), available at http://www.icj-cij.org/docket/files/135/15877.pdf.

[19]. Id. ¶ 25.

[20]. Id. ¶¶ 53, 65.

[21]. Id. ¶ 265.

[22]. Id. ¶ 70 (outlining the court’s analysis by noting the separation of procedural and substantive obligations).

[23]. Id. ¶¶ 101, 204.

[24]. Jorge E. Viñuales, The Contribution of the International Court of Justice to the Development of International Environmental Law: A Contemporary Assessment, 32 Fordham Int’l L.J. 232, 235 (2008) (noting that it is possible to “distinguish, for analytical purposes, two main trends or ‘waves’ of cases in the ICJ jurisprudence relating to IEL”).

[25]. Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, in Rep. of the Int’l Law Comm’n, 53d Sess., Apr. 23–June 1, July 2–Aug. 18, 2001, U.N. Doc. A/56/10; GAOR, 53d Sess., Supp. No. 10, at 370–77 (2001) [hereinafter Articles on Prevention].

[26]. Id. art. 3, cmt. 1; see also United Nations Conference on Environment and Development, Rio de Janiero, Braz., June 3–14, 1992, Rio Declaration on Environment and Development, princ. 2, U.N. Doc. A/CONF.151/5/Rev.1 (Vol. 1) [hereinafter Rio Declaration], reprinted in 31 I.L.M. 874, 876; Stockholm Declaration of the United Nations Conference on the Human Environment, adopted June 16, 1972, Report of the United Nations Conference on the Human Environment, princ. 21, G.A. Res. 2997, U.N. GAOR, 27th Sess., 21st mtg. [hereinafter Stockholm Declaration], reprinted in 11 I.L.M. 1416, 1420.

[27]. See Robert Esposito, The ICJ and the Future of Transboundary Harm Disputes: A Preliminary Analysis of the Case Concerning Aerial Herbicide Spraying (Ecuador v. Colom.), Pace Int’l L. Rev. Online Companion, Aug. 2010, at 43, http://digitalcommons.pace.edu/pilronline/15/.

[28]. Gabcíkovo-Nagymaros Project (Hung. v. Slovak.), Judgment, 1997 I.C.J. 7, 55 (Sept. 25), available at http://www.icj-cij.org/docket/files/92/7375.pdf; Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, art. 25, U.N. Doc. A/RES/56/83/Annex (Dec. 12, 2001) [hereinafter Articles on State Responsibility].

[29]. Patricia Birnie et al., International Law & the Environment, 12–13 (3d ed. 2009).

[30]. See Daniel Bodansky, Customary (and not so Customary) International Environmental Law, 3 Ind. J. Global Legal Stud. 105, 107 (1995) (noting that “international legal scholars tend to place importance on whether a norm represents customary international law and have spilled much ink debating whether particular environmental norms have achieved this status”); John H. Knox, Assessing the Candidates for a Global Treaty on Transboundary Environmental Impact Assessment, 12 N.Y.U. Envtl. L.J. 153, 153 (2003) (emphasizing that the “absence of a global treaty on environmental impact assessment (EIA) is an obvious gap in international law”).

[31]. See Dinah Shelton, Normative Hierarchy in International Law, 100 Am. J. Int’l L. 291, 299 (2006) (noting that “international law has traditionally been defined as a system of equal and sovereign states whose actions are limited only by rules freely accepted as legally binding”, a view that was recognized by the ICJ in 1986 when the court stated “in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception” (citing Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 269 (June 27)).  However, this theory is derogated by ius cogens violations, or rules of international law that are so imbedded that they cannot be derogated by a state.  See generally Alfred von Verdross, Forbidden Treaties in International Law, 31 Am. J. Int’l L. 571 (1937), for the first article in which the theory of ius cogens was discussed in detail.

[32]. See Winfried Lang, UN-Principles and International Environmental Law, 1999 U.N.Y.B. 3, 160–61, available at http://www.mpil.de/shared/data/pdf
/pdfmpunyb/lang_3.pdf.

[33]. See Rio Declaration, supra note 26, princ. 2; Stockholm Declaration, supra note 26, princ. 21 (providing an example of an obligation to refrain from causing harm to another state without elaboration of how a state may meet the requirement).

[34]. Statute of the International Court of Justice art. 36, June 26, 1945, 59 Stat. 1055, T.S. No. 993 (1945) [hereinafter ICJ Statute].

[35]. See Viñuales, supra note 24, at 235.

[36]. Id.

[37]. Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905, 1965 (1941), available at http://untreaty.un.org/cod/riaa/cases/vol_III/1905-1982.pdf.

[38]. Id.

[39]. Viñuales, supra note 24, at 238.

[40]. See id. at 237–38, 243.

[41]. Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. 4 (Apr. 9).

[42]. Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. 253 (Dec. 20); Nuclear Tests (N.Z. v. Fr.), Judgment, 1974 I.C.J. 457 (Dec. 20).

[43]. Viñuales, supra note 24, at 240.

[44]. Corfu Channel, 1949 I.C.J. at 22–23.

[45]. Id. at 22.

[46]. Stockholm Declaration, supra note 26, princ. 21.

[47]. Viñuales, supra note 24, at 240.

[48]. Id.  Citing to a principle or idea in pleadings to the ICJ is particularly important in all areas of international law because it tends to show the state practice and opinio juris required to establish the assertion as a customary norm.  Thus, when parties cited to Trail Smelter/Corfu Channel/Stockholm Principle 21 in their materials to the court, they were implicitly recognizing the customary nature of the requirement, or at the very least, their willingness to be bound by the requirement.  See generally Birnie et al., supra note 30, at 22–25, 141.

[49]. Viñuales, supra note 24, at 240.

[50]. Id. at 242–44.

[51]. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8).

[52]. Id. ¶ 1.

[53]. Id. ¶ 29 (emphasis added).

[54]. Viñuales, supra note 24, at 246.

[55]. Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 135 (Apr. 20).

[56]. Viñuales, supra note 24, at 246.

[57]. Id.

[58]. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 504 (July 8) (Weeramantry, J., dissenting).

[59]. Viñuales, supra note 24, at 248.

[60]. Gabcíkovo-Nagymaros Project (Hung. v. Slovak.), Judgment, 1997 I.C.J. 7, ¶¶ 51–52 (Sept. 25); see also Mari Nakamachi, The International Court of Justice Decision Regarding the Gabcíkovo-Nagymaros Project, 9 Fordham Envtl. L. Rev. 337, 346–53 (1998).

[61]. Viñuales, supra note 24, at 248–49.

[62]. Id. at 249.

[63]. Statute of the International Law Commission, G.A. Res. 36/39, U.N. Doc. A/RES/36/39, art. 1 (Nov. 18, 1981) [hereinafter ILC Statute].

[64]. Birnie et al., supra note 29, at 29.

[65]. Id.

[66]. ILC Statute, supra note 63, art. 15.

[67]. Birnie et al., supra note 29, at 30.

[68]. ICJ Statute, supra note 34, art. 38.

[69]. See Gabcíkovo-Nagymaros Project (Hung. v. Slovak.), Judgment, 1997 I.C.J. 7, ¶¶ 51–53 (Sept. 25) (citing directly to the ILC’s former Article 33 (current Article 25) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts as an acceptable expression of the doctrine of necessity).

[70]. Birnie et al., supra note 29, at 141.

[71]. Articles on Prevention, supra note 25, ¶ 3.

[72]. Id. art. 3, ¶ 1.

[73]. Id. art. 3, ¶¶ 11, 14.

[74]. Id. art. 3, ¶ 18.

[75]. Id. art. 3, ¶ 13 (noting that the “economic level of States is one of the factors to be taken into account in determining whether a State has complied with its obligation of due diligence”).

[76]. Id. arts. 4, 9, 10.

[77]. Id. art. 4, ¶ 2.

[78]. Id. art. 9.

[79]. Id. art. 9, ¶ 2.

[80]. Id. arts. 9–10.

[81]. Id. arts. 7–8.

[82]. See John H. Knox, The Myth and Reality of Transboundary Environmental Impact Assessment, 96 Am. J. Int’l L. 291, 291 (2002) (arguing that the “story” that environmental impact assessments are customary international law is simply “not true”).

[83]. Id. at 297.

[84]. Articles on Prevention, supra note 25, arts. 7–8.

[85]. Id. art. 8.

[86]. Id. art. 7, ¶ 6.

[87]. Id. arts. 8–10.

[88]. See discussion infra Part III.

[89]. Viñuales, supra note 24, at 253.

[90]. Application Instituting Proceedings, Pulp Mills on the River Uruguay (Arg. V. Uru.), 2006 I.C.J. Pleadings 2, ¶ 5 (May 6) [hereinafter Pulp Mills Application], available at http://www.icj-cij.org/docket/files/135/10779.pdf.

[91]. Id. ¶ 6 (emphasis added).

[92]. Id. ¶ 7.

[93]. Id. ¶ 6.

[94]. Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 135, ¶ 25 (Apr. 20).

[95]. Id. ¶ 31.

[96]. Pulp Mills Application, supra note 90, ¶ 10.

[97]. Pulp Mills, 2010 I.C.J. ¶¶ 32–33.

[98]. Pulp Mills Application, supra note 90, ¶ 12.

[99]. Id. ¶ 13.

[100]. Id. ¶ 14.

[101]. Id. ¶ 16.

[102]. Id. ¶ 20.

[103]. Id. ¶ 15.  Generally, pulp mills are factories that convert wood and other materials into fiber boards, which are then shipped to paper mills to be developed into paper.  Notably, pulp mills produce a distinctive and foul odor that can be detected for miles, although the odor itself is not environmentally harmful.  See Dorothy Thornton, Robert A. Kagan & Neil Gunningham, When Social Norms and Pressures are Not Enough: Environmental Performance in the Trucking Industry, 43 Law & Soc’y Rev. 405, 407 (2009) (noting that the results of one study on pulp mills showed that mill owners went out of the way to reduce unpleasant odors, even though environmental regulations did not require it).  Rather, the big problem with chemicals is water and air pollution as the production of pulp results in the “concurrent production of a large array of chemical by-products” which are often discarded into the environment.  Larry E. LaFleur, Sources of Pulping and Bleaching Derived Chemicals in Effluents, in Environmental Fate and Effects of Pulp and Paper Mill Effluents 21, 21 (Mark R. Servos et al. eds., 1996).

[104]. Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 135 (Apr. 20).

[105]. Pulp Mills Application, supra note 90, ¶ 24.

[106]. Id.

[107]. Pulp Mills, 2010 I.C.J. 135 ¶ 68.

[108]. Id. ¶ 48.

[109]. Id. ¶ 52.

[110]. Id.

[111]. Id. ¶¶ 77–79.

[112]. Id. ¶ 79.

[113]. Id. ¶ 78.

[114]. Id. ¶¶ 80–158.

[115]. Id.

[116]. Id. ¶ 96.

[117]. Id. ¶ 97.

[118]. Id. ¶ 98.

[119]. Id. ¶ 101 (citing Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. 4, 22 (Apr. 9)).

[120]. Id. ¶ 101 (emphasis added) (citing Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 29 (July 8)).

[121]. Id. ¶¶ 105–06, 111.

[122]. Id. ¶ 105.

[123]. Id. ¶¶ 106–07.

[124]. Id. ¶ 106.

[125]. Id. ¶ 119.

[126]. Id. ¶ 80.

[127]. See id. ¶ 33.

[128]. Id. ¶ 80.

[129]. Id.

[130]. See id. 33.

[131]. Id. ¶ 80.

[132]. Id. ¶ 158.

[133]. Id. ¶ 169.

[134]. Id. ¶ 265.

[135]. See id. ¶¶ 263–64.

[136]. Id. ¶ 170.

[137]. Id. ¶ 177.

[138]. Id. ¶¶ 190–266.

[139]. Id. ¶ 190.

[140]. Id. ¶ 197.

[141]. Id.

[142]. Id. ¶ 204.

[143]. Id.

[144]. Id. ¶ 205.

[145]. Id.

[146]. Id. ¶¶ 207–14.

[147]. Id. ¶¶ 229–59.

[148]. Id. ¶¶ 260–62.

[149]. Id. ¶ 265.

[150]. Id.

[151]. Id. ¶ 77.

[152]. Articles on Prevention, supra note 25, arts. 3, 9–10.

[153]. Pulp Mills, 2010 I.C.J. ¶ 276.

[154]. Owen McIntyre, The Proceduralisation and Growing Maturity of International Water Law, 22 J. Envtl. L. 475, 489 (2010).

[155]. Viñuales, supra note 24, at 257 (predicting that the Third Wave would further expound on the enforceability of IEL).

[156]. Djurdja Lazic, Introductory Note to the International Court of Justice: Pulp Mills on the River Uruguay (Argentina v. Uruguay), 49 I.L.M. 1118, 1120 (2010).

[157]. Pulp Mills, 2010 I.C.J. ¶ 101.

[158]. Id.

[159]. Id. ¶ 80.

[160]. Id.; Articles on Prevention, supra note 25, art. 8.

[161]. Pulp Mills, 2010 I.C.J. ¶ 101.

[162]. Articles on Prevention, supra note 25, art. 3.

[163]. Viñuales, supra note 24, at 253.

[164]. Pulp Mills, 2010 I.C.J. ¶ 204.

[165]. Id. ¶ 205.

[166]. Id. ¶ 106.

[167]. Id.; see also Pulp Mills Application, supra note 90, ¶ 10 (indicating that the Summary Environmental Report was provided by ENCE, the construction company in charge of the CMB mill).

[168]. Pulp Mills, 2010 I.C.J. ¶ 265.

[169]. Aerial Herbicide Spraying Application, supra note 9, ¶ 9.

[170]. Id. ¶ 37.

[171]. Id. ¶¶ 10–12.

[172]. Id. ¶ 10.

[173]. Id.

[174]. Id. ¶ 20.

[175]. Id. ¶ 19.

[176]. Id. ¶ 22.

[177]. Id. ¶ 23.

[178]. Id. ¶ 25 (noting that Ecuador was named by the World Conservation Monitoring Centre of the United Nations Environment Programme as “mega-diverse” and is one of seventeen countries worldwide to boast the title); see also id. (explaining that Ecuador has the world’s highest biological diversity per area unit, meaning that on average, there are more species per square kilometer in Ecuador than anywhere else in the world).

[179]. Aerial Herbicide Spraying Application, supra note 9, ¶ 28.

[180]. Id.

[181]. Id. ¶ 29.

[182]. Id. ¶ 30.

[183]. Rio Declaration, supra note 26, princ. 15.

[184]. Aerial Herbicide Spraying Application, supra note 9, ¶¶ 31, 33.

[185]. Id. ¶ 32.

[186]. Id. ¶ 38.

[187]. Id. ¶ 29.

[188]. Id. ¶¶ 10–12.

[189]. McIntyre, supra note 154, at 489.

[190]. Aerial Herbicide Spraying Application, supra note 9, ¶¶ 23, 29–30.

[191]. Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 135, ¶ 101 (Apr. 20).

[192]. Id. ¶¶ 14–15, 17, 18.

[193]. ICJ Statute, supra note 34, art. 36.

[194]. See generally Viñuales, supra note 24.

[195]. Articles on Prevention, supra note 25, art. 3, ¶ 11.

[196]. Id. art. 4.

[197]. Lazic, supra note 156, at 1120.

[198]. U.S. Dep’t of State, supra note 5; see also Juan Forero, In the War on Coca, Colombian Growers Simply Move Along, N.Y. Times, Mar. 17, 2001, at A1.

[199]. Romero, supra note 6, at A1.

[200]. See Staff of Senate Caucus on Int’l Narcotics Control, Onsite Staff Evaluation of U.S. Counter-Narcotics Activities in Brazil, Argentina, Chile, and Colombia, S. Doc. No. 105–41, at 16 (1995) (noting that the program lacks “serious overall coordination” and has “sparse resources” while its policies generate environmental protests); see also Kline, supra note 4, at 45 (noting that although the Minister of Defense Juan Manuel Santos reported in July 2006 that the situation was improving, “the army had not defeated FARC and had not captured any of the major leaders”).

[201]. U.N. Office on Drugs and Crime, Coca Cultivation in the Andean Region: A Survey of Bolivia, Colombia, and Peru 7 (2008), available at http://www.unodc.org/documents/crop-monitoring/Andean_report_2008.pdf.

[202]. Romero, supra note 6, at A1.

[203]. Bill Marx, Plan Fails to Curb Flow of Colombian Drugs, Buff. News, Nov. 25, 2003, at B11.

[204]. Some contend that because three hectares must be cleared for every acre of coca planted, the coca farmers are actually causing more environmental damage than the herbicide due to excessive deforestation, implying that spraying the herbicide is actually the more environmentally friendly option.  See Joseph Weir, The Aerial Eradication of Illicit Coca Crops in Colombia, South America: Why the United States and Colombian Governments Continue to Postulate its Efficacy in the Face of Strident Opposition and Adverse Judicial Decisions in the Colombian Courts, 10 Drake J. Agric. L. 205, 240 (2005).

[205]. See supra Part II.

[206]. Aerial Herbicide Spraying Application, supra note 9, ¶¶ 10–12.

[207]. Id. ¶ 30.

[208]. Rio Declaration, supra note 26, princ. 15.

[209]. See Owen McIntyre & Thomas Mosedale, The Precautionary Principle as a Norm of Customary International Law, 9 J. Envtl. L. 222 (1997).

[210]. Id.

[211]. See id.

[212]. Id. at 224–25; see, e.g., Mark Guarino, EPA Scolds BP in Gulf Oil Spill: Dispersant is Toxic, Change It, Christian Sci. Monitor, May 20, 2010, http://www.csmonitor.com/USA/2010/0520/EPA‑scolds‑BP‑in‑Gulf‑oil‑spill‑dispersant-is-too-toxic-change-it; Oil Spill Dispersant (COREXIT ®EC9500A and EC9527A) Information for Health Professionals, Ctrs. for Disease Control and Prevention, (Sept. 14, 2011, 11:41 AM), http://www.bt.cdc.gov
/gulfoilspill2010/dispersants_hcp_info.asp.

[213]. Rio Declaration, supra note 26, princ. 15.  See Aerial Herbicide Spraying Application, supra note 9, ¶ 30.

[214]. Birnie et al., supra note 29, at 156 (emphasis added).

[215]. See supra text accompanying note 3.

[216]. See supra notes 175–78 and accompanying text.

[217]. Aerial Herbicide Spraying Application, supra note 9, ¶ 29.

[218]. See Esposito, supra note 27, at 52.

[219]. Compare Gabcíkovo-Nagymaros Project (Hung. v. Slovak.), Judgment, 1997 I.C.J. 7, ¶ 53 (Sept. 25), with Articles on State Responsibility, supra note 29, art. 25.

[220]. Articles on State Responsibility, supra note 28, art. 25.

[221]. Gabcíkovo-Nagymaros, 1997 I.C.J. ¶ 51.

[222]. Id. ¶ 14.

[223]. Id.

[224]. U.S. Dep’t of State, supra note 5.

[225]. Articles on State Responsibility, supra note 28, at art. 25, ¶ 15.

[226]. Id.

[227]. Fernando Henrique Cardoso, César Gaviria & Ernesto Zedillo, The War on Drugs is a Failure, Wall St. J., Feb. 23, 2009, at A15.

[228]. Id.

[229]. Articles on State Responsibility, supra note 28, at art. 25, ¶ 17.

[230]. See Viñuales, supra note 24, at 248–49 (explaining that part of the Second Wave’s value was the declaration in Gabcíkovo-Nagymaros that environmental interests are in fact essential interests that can be protected in and of themselves under the doctrine of necessity).

[231]. Kline, supra note 4, at 193.

[232]. Id.

[233]. Id. at 199.

* J.D. Candidate, May 2012, Wake Forest University School of Law.  The author thanks Dale & Suzanne Rutledge and Austin Watson for their constant encouragement and patience, and Katie Heath for her inspiration and many hours of help with this piece.

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