Non-State Actors and International Law (The Library of Essays in International Law)

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Non-State Actors and International Law

The Library of Essays in International Law Series Editor: Robert McCorquodale

Titles in the Series: International Law of Human Rights Michael K. Addo

Sources of International Law Martti Koskenniemi

International Law and Indigenous Peoples S. James Anaya

International Refugee Law He'l2ne Lambert

International Law and Islamic Law Mashood A. Baderin

Space Law Francis Lyall and Paul B. Larsen

The International Criminal Court Olympia Bekou and Robert Cryer

Self-Determination in International Law Robert McCorquodale

Non-State Actors and International Law Andrea Bianchi

International Dispute Settlement Mary Ellen 0 'Connell

Democracy and International Law Richard Burchill

International Crimes Nikos Passas

Law of the Sea Hugo Caminos

International Environmental Law Volumes 1and I1 Paula M. Pevato

The Law of Treaties Scott Davidson Humanitarian Law Judith Gardam International Legal Personality Fleur Johns International Economic Regulation Jane Kelsey International Organizations Jan Klabbers International Peacekeeping Boris Kondoch

State Responsibility in International Law Rene' Provost Jurisdiction in International Law Michael Reisman Title to Territory Malcolm N. Shaw The Nature of International Law Gerry Simpson Collective Security Law Nigel D. White


Edited by

Andrea Bianchi Graduate Institute of International and Development Studies, Geneva

ASHGATE

O Andrea Bianchi 2009. For copyright of individual articles please refer to the Acknowledgements. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Wherever possible, these reprints are made from a copy of the original printing, but these can themselves be of very variable quality. Whilst the publisher has made every effort to ensure the quality of the reprint, some variability may inevitably remain. Published by Ashgate Publishing Limited Wey Court East Union Road Farnharn Surrey GU9 7PT England Ashgate Publishing Company Suite 420 101 Cherry Street Burlington, VT 05401-4405 USA Ashgate website: http:/lwww.ashgate.com

British Library Cataloguing in Publication Data Non-state actors and international law. - (The Library of essays in international law) 1. Non-state actors (International relations) 2. Non-governmental organisations - Law and legislation 3. Persons (International law) 4. Liability (Law) I. Bianchi, Andrea 34 1.2 Library of Congress Cataloging-in-Publication Data Non-state actors and international law 1 edited by Andrea Bianchi. p. cm. -- (The library of essays in international law) Includes index. ISBN 978-0-7546-2833-0 (alk. paper) 1. Non-governmental organizations. 2. Persons (International law) 3. International law. I. Bianchi, Andrea. 524841.N6567 2009 341.2--dc22 2008030729 ISBN: 978-0-7546-2833-0

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Contents Acknowledgements Series Preface Introduction: Relativizing the Subjects or Subjectivizing the Actors: Is That the Question.; PART 1 NON-STATE ACTORS IN THE THEORY OF INTERNATIONAL LAW 1 Hersch Lauterpacht (1970), 'The Subjects of International Law', in E. Lauterpacht (ed.), International Law. Being the Collected Papers of Hersch Lauterpacht, Volume I: The General Works, Cambridge: Cambridge University Press, pp. 136-50. 2 A. Claire Cutler (2001), 'Critical Reflections on the Westphalian Assumptions of International Law and Organization: A Crisis of Legitimacy', Review of International Studies, 27, pp. 133-50. 3 Jan Klabbers (2003), '(I Can't Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors', in Jarna Petman and Jan Klabbers (eds), Nordic Cosmopolitanism. Essays in International Law for Martti Koskenniemi, LeidedBoston: Martinus Nijhoff, pp. 35 1 4 9 . 4 Daniel Thiirer (1999), 'The Emergence of Non-Governmental Organizations and Transnational Enterprises in International Law and the Changing Role of the State', in Rainer H o h a n n (ed.), Non-State Actors as New Subjects of International Law, Berlin: Duncker & Humblot, pp. 37-58. 5 Janne E. Nijman (2007), 'Paul Ricoeur and International Law: Beyond "The End of the Subject". Towards a Reconceptualization of International Legal Personality', Leiden Journal of International Law, 20, pp. 25-64.

PART I1 THE EMPIRICAL APPROACH: SELECTED NON-STATE ACTORS 6 Robert McCorquodale (2006), 'The Individual and the lnternational Legal System', in Malcolm Evans (ed.), International Law (2nd edn), Oxford: Oxford University Press, pp. 307-32. 7 Steve Charnovitz (2006), 'Nongovernmental Organizations and International Law', American Journal of lnternational Law, 100, pp. 348-72. 8 Oscar Schachter (l977), 'The Invisible College of International Lawyers', Northwestern University School of Law Review, 72, pp. 21 7-26.

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PART 111 PARTICIPATION BY NON-STATE ACTORS IN INTERNATIONAL LEGAL PROCESSES Law-Making 9 Michael J. Struett (2004), 'NGOs, the International Criminal Court, and the Politics of Writing International Law', in I.F. Dekker and W.G Werner, Governance and International Legal Theory, LeidenJBoston: Martinus Nijhoff, pp. 321-53. 10 Kenneth Anderson (2000), 'The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organizations and the Idea of International Civil Society', European Journal of International Law, 11, pp. 91-120.

22 1

Law Adjudication 11 Lance Bartholomeusz (2005), 'The Amicus Curiae before International Courts and Tribunals', Non-State Actors and International Law, 5, pp. 209-86.

253

187

Law Enforcement 12 Alix Gowlland Gualtieri (2002), 'The Environmental Accountability of the World Bank to Non-State Actors: Insights from the Inspection Panel', British Yearbook of 333 International Law, 72, pp. 2 13-53. 13 Andrea Bianchi (1997), 'Globalization of Human Rights: The Role of Non-state Actors', in G. Teubner (ed.), Global Law without a State, Aldershot: Dartmouth, pp. 179-212. 375 PART IV NON-STATE ACTORS' ACCOUNTABILITY: THE QUEST FOR NEW PARADIGMS 14 August Reinisch (2005), 'The Changing International Legal Framework for Dealing with Non-State Actors', in P. Alston (ed.), Non-State Actors and Human Rights, Oxford: Oxford University Press, pp. 37-89. 41 1 15 William A. Schabas (2002-2003), 'Punishment of Non-State Actors in NonInternational Armed Conflict', Fordham International Law Journal, 26, pp. 907-33. 465 16 Jill Marshall (2005), 'Torture Committed by Non-State Actors: The Developing Jurisprudence from the Ad Hoc Tribunals', Non-State Actors and International Law, 5, pp. 171-82. 493 17 Robert McCorquodale and Penelope Simons (2007), 'Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law', Modern Law Review, 70, pp. 599426. 505 18 Erik B. Bluemel(2005), 'Overcoming NGO Accountability Concerns in International Governance', Brooklyn Journal of International Law, 31, pp. 139-206. 533

Index

60 1

Acknowledgements My heartfelt thanks to Lorenzo Gradoni, Melanie Samson and Fouad Zarbiev for their assistance in the preparation of this edited volume. Thanks also to Katherine Del Mar for her editing work on the Introduction. The editor and publishers also wish to thank the following for permission to use copyright material. Brill Academic Publishers for the essays: Jan Klabbers (2003), '(I Can't Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors', in Jarna Petrnan and Jan Klabbers (eds), Nordic Cosmopolitanism. Essays in International Law for Martti Koskenniemi, Leideni Boston: Martinus Nijhoff, pp. 35 1 4 9 . Copyright O 2003 Brill Academic Publishers; Michael J. Struett (2004), 'NGOs, the International Criminal Court, and the Politics of Writing International Law', in I.F. Dekker and W.G. Werner, Governance and International Legal Theory, LeidentBoston: Martinus Nijhoff, pp. 321-53. Copyright O 2004 Brill Academic Publishers; Lance Bartholomeusz (2005), 'The Amicus Curiae before International Courts and Tribunals', Non-State Actors and International Law, 5, pp. 209-86. Copyright O 2005 Brill Academic Publishers; Jill Marshall (2005), 'Torture Committed by Non-State Actors: The Developing Jurisprudence from the Ad Hoc Tribunals', Non-State Actors and International Law, 5, pp. 171-82. Copyright O 2005 Brill Academic Publishers. Brooklyn Journal of lnternational Law for the essay: Erik B. Bluemel (2005), 'Overcoming NGOAccountability Concerns in International Governance', BrooklynJournal oflnternational Law, 31, pp. 139-206. Copyright O 2005 Brooklyn Journal of lnternational Law. Cambridge University Press for the essays: A. Claire Cutler (2001), 'Critical Reflections on the Westphalian Assumptions of International Law and Organization: A Crisis of Legitimacy', Review of International Studies, 27, pp. 133-50. Copyright 0 2001 British lnternational Studies Association; Janne E. Nijman (2007), 'Paul Ricoeur and International Law: Beyond "The End of the Subject7'. Towards a Reconceptualization of lnternational Legal Personality', Leiden Journal of lnternational Law, 20, pp. 2 5 4 4 . Copyright 02007 British International Studies Association. Copyright Clearance Center for the essay: Steve Charnovitz (2006), 'Nongovernmental Organizations and International Law', American Journal of International Law, 100, pp. 34872. Duncker and Humblot GmbH for the essay: Daniel Thiirer (1999), 'The Emergence of NonGovernmental Organizations and Transnational Enterprises in International Law and the Changing Role of the State', in Rainer Hofmann (ed.), Non-State Actors as New Subjects of International Law, Berlin: Duncker & Humblot, pp. 37-58.

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Lauterpacht Center for the essay: Hersch Lauterpacht (l970), 'The Subjects of lnternational Law', in E. Lauterpacht (ed.), International Law. Being the Collected Papers of Hersch Lauterpacht, Volume I: The General Works, Cambridge: Cambridge University Press, pp. 136-50. Copyright O 1970 Lauterpacht Center. Robert McCorquodale and Penelope Simons (2007), 'Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law', Modern Law Review, 70, pp. 599426. Copyright O 2007 Robert McCorquodale and Penelope Simons. Oxford University Press for the essays: Robert McCorquodale (2006), 'The Individual and the International Legal System', in Malcolm Evans (ed.), International Law (2nd edn), Oxford: Oxford University Press, pp. 307-32. Copyright O 2006 Oxford University Press; Kenneth Anderson (2000), 'The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organizations and the Idea of International Civil Society', European Journal of International Law, 11, pp. 91-120. Copyright O 2000 Oxford University Press; Alix Gowlland Gualtieri (2002), 'The Environmental Accountability of the World Bank to Non-State Actors: Insights from the Inspection Panel', British Yearbook of International Law, 72, pp. 213-53. Copyright O 2002 Oxford University Press; August Reinisch (2005), 'The Changing International Legal Framework for Dealing with Non-State Actors', in P. Alston (ed.), Non-State Actors and Human Rights, Oxford: Oxford University Press, pp. 37-89. Copyright O 2005 Oxford University Press. William A. Schabas for the essay: William A. Schabas (2002-2003), 'Punishment of NonState Actors in Non-International Armed Conflict', Fordham International Law Journal, 26, pp. 907-33. Copyright O 2002-2003 William A. Schabas, published by Fordham University School of Law. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Series Preface Open a newspaper, listen to the radio or watch television any day of the week and you will read or hear of some matter concerning international law. The range of matters include the extent to which issues of trade and human rights should be linked, concerns about refugees and labour conditions, negotiations of treaties and the settlement of disputes, and decisions by the United Nations Security Council concerning actions to ensure compliance with international law. International legal issues have impact on governments, corporations, organisations and people around the world and the process of globalisation has increased this impact. In the global legal environment, knowledge of international law is an indispensable tool for all scholars, legal practitioners, decision-makers and citizens of the 2 1st century. The Library of Essays in International Law is designed to provide the essential elements for the development of this knowledge. Each volume contains essays of central importance in the development of international law in a subject area. The proliferation of legal and other specialist journals, the increase in international materials and the use of the internet has meant that it is increasingly difficult for legal scholars to have access to all the relevant articles on international law and many valuable older articles are now unable to be obtained readily. These problems are addressed by this series, which makes available an extensive range of materials in a manner that is of immeasurable value for both teaching and research at all levels. Each volume is written by a leading authority in the subject area who selects the articles and provides an informative introduction, which analyses the context of the articles and comments on their significance within the developments in that area. The volumes complement each other to give a clear view of the burgeoning area of international law. It is not an easy task to select, order and place in context essays from the enormous quantity of academic legal writing published in journals - in many languages -throughout the world. This task requires professional scholarly judgment and difficult choices. The editors in this series have done an excellent job, for which I thank and congratulate them. It has been a pleasure working with them. ROBERT McCORQUODALE General Series Editor School of Law University of Nottingham

Introduction Relativizing the Subjects or Subjectivizing the Actors: Is That the

Question? Context

The Library of Essays in International Law is a valuable series of books. Among other things, it is an attempt to restore doctrine to its ancient role of collecting relevant legal materials and providing guidance to scholars as well as practitioners. In the early days, doctrine carried out this function by assembling primary sources, which were difficult to retrieve. Its role was prominent in finding the instances of state practice, and thereby systematizing and making available to the interested public - which would include other scholars, state officials and courts -the fundamental elements on the basis of which legal decisions were to be taken and the law was to be found. Certainly, this process was not a neutral one. The way in which the relevant materials were chosen, assembled and presented depended heavily on the way in which doctrine perceived of the international legal system and its proper functioning. Acting as a broker between raw legal materials and its users, doctrine shaped international law to its own liking. The task was somewhat facilitated by arelative convergence ofviews about what international law was about and which purposes it was meant to serve. The most highly qualified publicists of the time, to borrow the term used in the Statute of the Permanent Court of International Justice,' provided evidence of the rules of international law. Whether in so doing they also created such rules is a question that goes beyond the purpose of these introductory remarks. Be that as it may, scholars had control over the way in which the law was made and applied. The pioneering effort by Arnold McNair and Hersch Lauterpacht in the early 1920s to launch the Annual Digest of Public International Law Cases ( 1 9 19-32) (later Annual Digest and Reports of Public International Law Cases (1 933-49) and subsequently renamed International Law Reports), which brought together judicial decisions, including those by national courts, at the core of international practice, attests to this active role of doctrine, including its intermediary function as regards primary sources (Jennings, 1998). At this point, one might think that the historical reminiscing about the early last century doctrine has carried the author away, or, at least, has led him astray. In fact, a similar intermediary role could be aptly performed nowadays by doctrine for completely different reasons. Certainly, in a world where there is no want of information, where most legal materials have become accessible at real time, where databases are as numerous and rich as to satisfy

' See Art. 38 (d) of the International Court of Justice Statute listing 'the judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law', applicable by the Court to disputes submitted to it.

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even the most eager law journal reader, the role of doctrine may no longer consist of disclosing hidden materials and unravelling instances of practice which would go otherwise unnoticed by the unskilled researcher. Yet, somewhat paradoxically, doctrine may still mediate, no longer between primary sources and their potential users but, rather, between secondary sources and interested readers. The proliferation of publications and the ensuing panoply of writings, the scant quality control of many existing publications, the redundant stratification of well-known arguments in endless law review essays, the lengthy compilations of a-critical commentaries and a certain inclination (by some segments of the academic corporation) to conceive of scientific writing as an industrial production process, all are elements that contribute to make international legal scholarship a discipline in disarray. Against this backdrop, some selectivity is indeed warranted. In this respect, to sift out the most important contributions on any given area of international law is an exercise worth the effort. To take up the responsibility of providing interested readers with some of the writings that have better contributed to the understanding of the state of the law in a certain area of international regulation appeared to me a valuable service to the scientific community. This is why I accepted with pleasure the invitation to edit a volume of essays on the topic 'Non-state Actors and International Law'. I thought that the exercise would be a good opportunity to revise the extant literature, to find pieces I had never read before or to retrieve from my memory recollections of readings done long ago, which had struck me at the time as particularly interesting or thought-provoking. Much to my dismay, the search has been difficult and has brought about some sense of frustration. In particular, I would have expected to find myriad contributions of a theoretical character, which would shed light on the concept of 'actor' in international legal processes, to be contrasted with the more traditional notion of 'subject'. Having set out to lay down the theoretical framework for a theory of actors in international law - what luck not to have to do it yourself, but rather rely on colleagues who have already done it for you! - I soon found myself incapable of tracing the plethora of writings I expected to find. Several explanations may lie at the heart of the above-mentioned difficulties. The simplest one is that I have not researched well enough and that what I was looking for is actually out there, in some law journal, monographic study or edited volume which I have overlooked. This could reasonably account for my failure, one not particularly flattering for my ego as a researcher, but certainly comforting to the discipline: what you need is there if only you can find it. However, the many colleagues and collaborators whom I had asked to draw to my attention interesting writings on the topic had no more success than I did, which probably means that the difficulties are real. Second, I thought that the outcome of a research depends heavily on the queries one submits and the premises one starts from. Perhaps I was wrong to search for studies on the actors of international law, simply because there is no such thing in the general theory of international law. Mainstream scholarship still thinks in terms of 'subjects' and international legal personality. The term 'actor' comes from the language of political science. This may attest to an ever-increasing cross-fertilization between the two disciplines. Or, perhaps, it is simply evidence that once the border of interdisciplinarity is crossed, what lies ahead is a barren plain with no landmarks or other distinctive signposts. Against this background, what makes a piece of scholarly writing eligible for inclusion in this volume of essays is debatable. Should one select only those essays that have been written by international lawyers proper - that is, members of the 'scientific field' (Bourdieu,


. ..

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1981) who are socially recognized as laying a legitimate claim to scientific authority and competence in international law? But then one may wonder whether those who are clearly not readily identifiable with the discipline of international law and yet have published their work in international law journals or books edited by international lawyers may likewise lay such a legitimate claim. Is publication in international law books and journals the determinant factor? Or should one reach out to scholarly contributions that, although admittedly belonging to other disciplines, may shed light on some aspects of the functioning of the international legal system and inspire from outside hrther thinking within the discipline? These questions are clearly reminiscent of Hart's distinction between the internal and external point of view on the law (Hart, 196 1, pp. 86-88).2 A contemporary and contextual reappraisal of the dichotomy would arguably presuppose that clarity be made at the outset about what is meant by internal and external as well as the usefulness and propriety of placing oneself strictly within the internal perspective. If the above-mentioned distinction appeared as relatively clear-cut and straightforward at the time when the positivist theory of law provided a unitary and selfsufficient framework of analysis, in the present time to distinguish between internal and external perspectives requires a prior definition of what are the boundaries that connote the 'legal' and make it distinct from other aspects andlor dimensions of social life. The difficulty of providing sound answers to the above queries may be one of the reasons why international legal scholarship has carefully avoided dealing with the issue of non-state actors in a systematic way. It is extraordinary to realize how little attention the theoretical discourse about non-state actors has drawn. Yet this reluctance is understandable. In fact the issue lies at the interface of theory and practice, law and policy, and the stance you take about it is likely to have repercussions on such other systemic issues as law-making and law enforcement. To use Jan Klabbers' words (from Chapter 3), 'subjects doctrine forms the clearing house between sources and substance: it is through subjects doctrine that the international allocation of values takes place, and as any political scientist knows, the authoritative allocation of values is one of the main political functions' (p. 55). The subjects1 actors discourse, therefore, takes place in a variety of contexts on a small scale. Most of the time the narrative describes how different actors participate in legal process in any given area, such as international human rights law, environmental law and international economic law. Whether the same actors play a role in other areas is often of little interest, and the extreme fragmentation of relevant studies makes one think that the concept of 'regime' has also been successfully imported from political science. At this point, I suppose I have made a strong enough case to argue that my task was not an easy one and that what is proposed to the reader in this volume did not come naturally from the state of the literature. Nor have I demonstrated a capacity or inclination to assemble the scattered pieces of the mosaic back into a coherent pattern where figures and objects can be clearly seen. I suspect that to entrust the preparation of this book to someone who clearly subscribes to one of the methodslschools that characterize international legal scholarship in the present time would have been much more beneficial to the overall coherence of the volume. A positivist would have had plenty of choice among traditional writings on the subjects of international law. Suffice to look at most manuals and treaties that are currently As is known, Hart's distinction remains controversial. For a recent reappraisal, see Perry (1995).

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Non-State Actors and international Law

used in European universities to realize that the prevailing discourse is still one concerning the subjects of international law. Alongside a solid study of the doctrine of subjects, there would have been some critical voices about the diminished importance of the state and an essay restating the fundamental role that states will continue to play. Then, the discussion would have shifted to the personality of international organizations, against the background of international case law, particularly the International Court of Justice's and, if the editor were a 'progressive' scholar, he or she would have included a selection of contributions making the case for individuals having partial or relative personality. By the same token, if a New Haven School representative were to indulge in the exercise, she would hardly have mentioned the doctrine of subjects, but rather would have concentrated on the decision-making process and its many participants. She would have made clear that the way in which participants operate depends heavily on context and the values that they want to foster. I doubt that there would have been a reference to the case law of the International Court of Justice. Perhaps there should be as many volumes as there are methods and schools to provide everybody with the comforting view that even the language of the subjects can be spoken in their own dialect?

Non-State Actors in the Theory of International Law (Or dowsing for theory: the divining rod does not vibrate) Conceptual thinking about non-state actors poses numerous challenges. As regards terminology, one may wonder whether the term, which has come to be part of the common parlance of international lawyers, has merely a descriptive connotation, used to encompass those actors that are not states, or whether it refers, in a prescriptive fashion, to a particular status, recognized by the international legal order, to which specific legal connotations are attached. One would expect theory to have tackled this issue and have provided satisfactory responses to such a fundamental question. In fact, despite the increasing use of 'non-state actors' as a term of art, no systematization seems to have been made in the literature which could satisfactorily account, from the theoretical perspective, for the role played by non-state actors in contemporary international law. Traditional doctrine provided a neat framework of analysis. The international legal system recognized only a limited number of entities, primarily states, which could bear rights and duties under international law. The concept of international legal personality was meant to cover those entities which 'the legal system has cast to appear on the stage of the law' (Cheng, 1991, p. 24). As the etymology of the words suggests, only those personae that played a direct role in the legal system could appear on stage, regardless of the other entities that might participate in the production of the play. The latter would be of interest to sociologists and political scientists but were irrelevant to legal analysis. The question 'Who is the subject?' found an obvious answer in a strongly state-centred system, where states had the monopoly of law-making, law adjudication and law enforcement processes (Weil, 1992, p. 122). In a somewhat tautological fashion, 'indices' of the legal personality of entities at international law were traced to the capacity of certain entities to perform such functions as to exchange diplomatic missions or to conclude treaties, which were all typical states' prerogatives (Cheng, 1991, p. 38). Anomalies could always be accommodated and their marginal character posed no systemic threat (Arangio-Ruiz, 1996). Over time, legal personality reached out to international organizations, in many ways a direct emanation of states, and the International


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Court of Justice Advisory Opinion on the Reparation for Injuries case paved the way for relativizing the doctrine of subjects and adjusting it to the new demands of the international ~ommunity.~ Ever since, the doctrine of subjects has resisted any attempt at revision and still stands as a cornerstone of positivistic legal analysis. Most textbooks and treaties still have a section on the subjects of international law, and the unity of the system is being preserved by denying the existence of new scientific paradigms and schools of thought that, in the meantime, have done away with traditional theory and have proposed frameworks of analysis based on entirely different tenets. The merit of sociological approaches to international law and, particularly, the introduction of policy analysis by the New Haven School is to have highlighted that the social fabric and structure of the international legal system, on the one hand, and its subjects1 actors, on the other, are 'mutually-constitutive'. Constructivist theories, elaborated in the field of international relations, have shown that the interaction among different actors constitutes the structure of the system and the latter shapes the identity, interests and expectations of the actors in a mutual process of influence (Arend, 1998, p. 129; Mertus, 1999-2000). When and how the terminology of actors andor participants made its way into international law may be subject to controversy. Certainly, Rosalyn Higgins' critique of the old theory of the subjects (1994) and its advocacy of the notion of participants in international decisionmaking processes has greatly contributed to giving legitimacy to such a new terminology. The argument that, by construing the reality of international law in terms of 'subjects' and 'objects', '[wle have erected an intellectual prison of our own choosing and then declared it to be an unalterable constraint' (Higgins, 1994, pp. 49-50) carries much force, particularly because the distinction does not seem to serve any particular functional purpose. This, however, is unlikely to convince the positivist who would rebut, not without reason, that the doctrine of sovereign equality and the doctrine of subjects are constitutive fictions 'that require acceptance if the whole edifice of the international legal system is not to be called into question' (Dupuy, 2003, p. 179). The point is well taken, insofar as it highlights that the way in which one conceives of international law inevitably reflects on the way in which such fundamental questions as to 'who makes the law' and 'who is the subject of the law' are answered. In fact, to conceive of international law as a body of rules in a community of states or as a legal process in a community where 'there are a variety of participants, making claims across state lines, with the object of maximizing various values' (Higgins, 1994, p. 50) is not the same thing, and the use of a different terminology hardly hides a fundamental difference in thinking of the international legal system. The situation of disarray in which the doctrine of subjects/actors seems to be is further attested by the attempt to put together such different visions with a view to reconciling them. In a recent book, the relevance of the proliferation of actors to treatymaking has been assessed by Roben (2005) who has taken for granted the variety of actors that contribute to making international law. Dupuy's comment on the paper, and his tremendous difficulty in accommodating such a way of thinking in relation to the traditional doctrine of subjects, is evidence of a certain malaise within the profession to abandon the old scheme and 'The subjects of law in any legal system are not necessarily identical in their nature or the extent of their rights, and their nature depends upon the needs of the international community. Throughout its history, the development of international law has been influenced by the requirements of international life' (1949 ICJ Reports, p. 178).

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embrace new ones. Dupuy's fictitious joke, reporting a hypothetical conversation with Jean Combacau, who would not understand the expression 'non-state actors' as such a term would fall 'outside the scope of legal analysis', is too ostentatious to be an exercise in self-irony. In fact, the foundational character of the doctrine of subjects to positivist thinking does not allow its adherents to relinquish it lightheartedly. Even if they are ready to concede that the doctrine is no longer capable of explaining the complexities of contemporary international law-making, the lack of an intellectually systematic alternative would nevertheless cause them to cling to the old framework. The inadequacy of the doctrine of subjects has been underscored by numerous authors. Indeed, in one of the earliest statements, Hersch Lauterpacht, writing on 'The Subjects of International Law' (Chapter 1) contends that 'the individual human being is the ultimate unit and end of all law' (p. 16). Key to any such critique is the acknowledgment that the changing social structure of the international community must be adequately accounted for and that new conceptual tools are required. The solipsistic vision of state sovereignty as the quintessential element of the international community of states must give way to a contemporary assessment of the social forces that structure a wider community whose members have 'values, identities and roles distinct from the geographic limitations of states' (McCorquodale, 2006, p. 149). In her essay on 'Critical Reflections on the Westphalian Assumptions of International Law and Organization: A Crisis of Legitimacy' (Chapter 2), Claire Cutler notes that '[tlhe logic of the liberal representative state and consent-based notions of international law' (p. 36) do not allow reconsideration of the state as the only subject of the international legal system, thus causing a 'disjunction between theory and practice'which is conducive to a 'crisis of legitimacy' (pp. 33 ff). As is well known, despite Franck's effort (1999) to introduce legitimacy into the vocabulary of international law, the term makes positivist lawyers diffident by their incapacity to attach to it sufficiently precise legal connotations. In this context, however, its meaning is self-evident. As Cutler shows, if the participants in international legal processes fail to see their social practices reflected in the law, the law's claim to authority will be undermined. Attempts to reduce the gap between theory and practice and to address the issue of subjects1 actors in a comprehensive way have not been numerous. Jan Klabbers does it in Chapter 3, '(I Can't Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors', as discussed earlier. In addition, a new approach to the theory of international legal personality has been put forward, with a view to introducing a rebuttable presumption of normative responsibilities of de facto p o w e h l actors. According to Nowrot, the influential position of some non-state actors would create the presumption that international legal obligations concerning 'the promotion of community interests such as the protection of human rights, the environment and core labour and social standards' are applicable to them (2005, p. 13). Such an approach would ensure that international law fulfils its mission of 'comprehensively civilizing international relations' (ibid.). As to the objection that the concept of 'influential actor' would be too indeterminate to attach to it a particular status, the proponent of the theory submits that the influence of any given actor can be objectively measured on the basis of such criteria as direct or indirect participation in international law processes, as well as its capacity to contribute to promoting common interests and protecting global public goods. A constitutional perspective, such as the one adopted by Daniel Thiirer in Chapter 4, 'The Emergence ofNon-Governmental Organizations and Transnational Enterprises in International Law and the Changing Role of the State', is also likely to cast the debate in a new light. By


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acknowledging the changing structure of international law and the impact of globalization on world affairs, Thurer advocates the adoption of a constitutional approach that focuses on the basic components of the legal system, thus doing away with the doctrine of subjects. In Thurer's enlarged notion of 'international community' there would be no room for formalistic doctrines of legal personality and 'the new actors in our globalizing world might more easily be moulded into the system of international law if we try to conceive of them as factors and forces of a broader constitutional order' (p. 74). To agree with this characterization of international law actors implies, for Thurer, an endorsement of the underlying constitutional perspective which puts forward a vision of international law gradually drifting towards a form of world federalism where states are no more than mediators or 'bridges' between communities on the local, regional and global plane. Whether or not this is the way in which international law is going, the attempt to move away from formalistic constructions is self-evident. Yet another way to depart from the doctrine of subjects is to focus directly on the scope of application of international norms and to identify their addressees without drawing any conclusion in terms of subjectivity, properly so-called. In other words, what matters is to determine whether any specific obligation is applicable to any given non-state actor. The answer to this question is not predetermined by the subjectivity (or lack thereof) of the non-state actor but by a number of factors ranging from international practice to policy considerations. Furthermore, the ultimate purpose of any such query is not to determine whether the entity is a subject of international law, but more simply whether a certain intemational legal obligation is applicable to it. This approach, which inspires many works, has been recently used by Andrew Clapham (2006a, 2006b) in his work on the human rights obligations of non-state actors. Its merit lies primarily in de-emphasizing the importance of the notion of 'subject', to focus more pragmatically on the actual scope of application of international obligations. A strong policy consideration for adopting this approach is the need to promote the implementation of rules and their underlying values. lf the prohibition of torture is perceived to be a fundamental value by the international community, its respect should be owed by all actors, regardless of whether they are a state or a non-state. But to impose obligations directly on non-state actors presents the obvious disadvantage of divesting states of their responsibility to ensure compliance with international law obligations (Vazquez, 2004-2005). Unless such a direct imposition of obligations on non-state actors is coupled with effective enforcement mechanisms, it may be ill-advised to rely on this normative strategy to the detriment of more traditional and, arguably, more effective state-centred paradigms of intemational obligations (ibid.). By and large the most engaging and intriguing attempt to revisit the notion of international legal personality at international law is the work of Janne Elisabeth Nijman, in particular her monographic study on The Concept of International Legal Personality (2004). In an attempt to revive the naturalist tradition of international law, founded on considerations of ethics and morality, Nijman puts forward a theory of international legal personality whereby individuals - the primary legal persons in international law - possess 'a natural right to political participation . .. the right to have rights, [which] includes the right to live in a world governed by just institutions' (ibid., p. 472). As a corollary to such a natural right, the individual (the Self) also has 'the duty to take moral and political responsibility' (ibid., p. 473) to respect the Other and, as Nijman states in Chapter 5, 'to fight against exclusion and misrecognition on the global scale' (p. 115). The fiction of the state's international legal personality (the mask) as shaped by classical international law is doomed to subside and give way to a new concept

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of international legal personality (the vocal chords) which, by linking law to justice, refers to the capacity to speak and act, and, in a broader sense, 'the capacity to be a political participant, with a natural right to such participation' (Nijman, 2004, p. 469). In a later essay, 'Paul Ricoeur and International Law: Beyond "The End of the Subject7" (Chapter 5), Nijman, who thrives on the works of the French philosopher Paul Ricoeur, particularly his hermeneutics of the Self, further elaborates on the notion of international legal personality as 'life in global institutions7(p. 115). The quest for a new cosmopolitan ethics requires 'the participation of the whole of humanity through different associations and institutions' (p. 117). The reconstitution of every individual and collective Self in relation to others is constitutive of a social order of mutual recognition and respect. This idea of international legal personality as 'moral identity constituted in the dialectic relation of Self and Other(nes)s' (p. 118) is an admirable attempt at changing the language of international law by reconceptualizing some of its foundational tenets. Although, admittedly, Nijman refuses to engage in the analysis of international practice, some of her findings obviously bear on practice. For instance, she advocates the attribution of personality to non-state actors in an inclusive fashion and she denies personality to those states who are no longer capable of expressing and protecting the personality of their citizens (Nijman, 2004, p. 469). Unlike Allott, who would do away with the traditional category of subjects and allow for the recognition of the countless participants in international legal relations 'as the needs of international society demand' (1990, p. 372), Nijman confers to the concept of international legal personality a fundamental role in ordering international society and shaping the contours of a new and more just international order. Interestingly enough, Nijman's fundamental tenet may be thought to rejoin Hersch Lauterpacht's contention in Chapter 1 that 'the individual human being is the ultimate unit and end of all law' (p. 16). What to make of such convergence of views among scholars, who have written at dramatically different times and from so divergent theoretical standpoints, is no easy task. If one were to venture into some synthesis of sorts, it would be reasonable to speculate that a common feature of their respective theories is the centrality of the human being in law. Law, however, is a political project which different people conceive of in an entirely different way. To Lauterpacht, to acknowledge the central role of the individual and to look at it as subject of all law was 'an essential stage in the progression of the international community towards the goal of federal integration' (p. 16; my emphasis). To Nijman, to recognize that the individual is 'the legal personality par excellence of international law' (Nijman, 2004, p. 473) is instrumental to putting forward her main thesis that '[International Legal Personality] forms the cords between the individual human being and the universal human society' (ibid., p. 473). The task of international law and of the international community would then be to 'guarantee the rights to have rights, the right to political participation, i.e. the right to speak out and raise one's voice' (ibid., p. 473). Against this background, international legal personality takes up an entirely new function within a brand new project of international society made of just institutions. International legal personality stands somewhere in between morals and politics and is part and parcel of a more ambitious project to refound international law on an ethical basis. Incidentally, the call for laying down a moral foundation for international law is not isolated and goes hand in hand with other intellectual projects, apparently inspired by entirely different considerations (Franck, 1999; Buchanan, 2007; Koskenniemi, 2007).


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This vision, characterized by some commentators as 'utopian idealism' (Masciulli, 2006), is unlikely to appeal to the positivist who would typically look at it as an exercise in 'sociopolitical history' deprived of practical legal relevance (Kolb, 2007). However, the proliferation of studies that attempt to put forward dramatically different conceptual perspectives should not be taken lightheartedly as they attest, at the very least, to the unsatisfactory character of traditional international law frameworks as regards their capacity to explain the reality of contemporary international law and, most of all, to direct its future development.

The Empirical Approach: Selected Non-State Actors To account for the whole range of entities that could qualify as non-state actors is not the purpose of this edited volume. Given the controversial character of the topic and the dissonant voices in international legal scholarship, it would have been simply pretentious to lay claim to an exhaustive presentation of non-state subjects/actors. This limitation appears all the more compelling when one realizes that nowadays the range of non-state actors can be stretched almost ad libitum to include all sorts of actors, including 'scientists, technicians, auxiliary staff, and engineers in the academic, industrial research and life science communities', at least as regards the proliferation of weapons of mass destruction (Prescott, 2007, p. 41). The task is rather that of bringing forward a few, selected contributions which may help think about the topic in a stimulating way. The first essay in Part 11 is Robert McCorquodale's 'The Individual and the International Legal System' (Chapter 6). By thoroughly reviewing the role of individuals, including groups of individual^,^ in the different areas of international law, McCorquodale concludes that the individual is an independent participant in the international legal system, even though the degree of participation may vary depending on the changing needs of international law. The fact that nowadays many, but certainly not all, international law scholars would admit that individuals are subjects or legitimate actors of international law should not be a cause to overlook the long and painful process that eventually led to the recognition of the role of individuals in international law. In many ways, this is a paradigmatic example, as it shows how sensitive an issue the inclusion/exclusion of any given entity as subjectlactor of the system can be (McCorquodale, 2004, pp. 481 ff). Given their increasing role in international law-making, law adjudication and law enforcement processes, particular consideration is given in this section to non-governmental organizations (NGOs). In fact, it would be simplistic to think that NGOs have only recently made their appearance on the international scene (Martens, 2003). Steve Charnovitz's essay in the Michigan Journal of International Law (1996-97) provides a detailed account of the different historical phases of NGO involvement in international affairs. The book-length and readily available character of the piece advised against its inclusion in this volume of essays. Another essay by Charnovitz, 'Nongovernmental Organizations and International Law', is included as Chapter 7 in this volume, and in this he gives a more succinct and yet effective account of the role of NGOs in contemporary international law. Charnovitz concludes by striking a note of optimism when he says that NGOs will continue to inject into the debate

For additional insights on the rights of peoples, see also Tomuschat (1986) and Korkeakivi (1993).

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Non-State Actors and Interrzational Law

'competing facts and sentiments', thus paving the way for a 'more englobing international law in the twenty-first century' (p. 171). How this is to be done remains an open question. Finally, an explanation may be owed for including Oscar Schachter's seminal work on the 'Invisible College of International Lawyers' (Chapter 8). Since the essay was written, the college and its influence have become more visible, with international lawyers playing an ever-increasing role in shaping the discipline and its practice. If they have failed in preserving the unity of the discipline, as Schachter had wished, their acting under the different guise of scholars, counsel, international judges and legal advisers make them a powerful actor on the scene. Their actual influence on the development of international law cannot be underestimated. An astounding example of such influence is given by the manner in which international lawyers have moulded the normative category of jus cogens and exploited its evocative power as a collective belief. As I have written elsewhere, by invoking its magical power and administering its rites, the magician-international lawyer has 'succeeded in making jus cogens a part and parcel of the fabric of the international law discourse' (Bianchi, 2008, p. 494). Participation by Non-State Actors in International Legal Processes

Law-Making An apt illustration of the way in which civil society and NGOs may participate in the international law-making process is given by the adoption of two treaties, the Rome Statute of the International Criminal Court and the Ottawa Convention on the ban of landmines. Certainly, these are not the only instances in which the formal interstate law-making mechanisms have been strongly influenced by NGOs. Other occurrences can be traced to recent practice that further attest to this phenomenon (Breen, 2003,2005). And yet the ICC Statute and the Ottawa Convention are prominent examples of this trend for the overt and highly publicized role that NGOs have played in their creation. This should hardly come as a surprise. As Michael Struett shows in Chapter 9, 'NGOs, the International Criminal Court, and the Politics of Writing International Law', NGOs have become more sophisticated in their lobbying strategies and the level of their expertise has remarkably improved. Indeed, the capacity to accompany their 'discursive claims' with 'expert knowledge' (p. 203; see also Kamminga, 2005, p. 110) has, in all likelihood, been crucial in enhancing their practical impact on international treaty-making. The fact that many legal experts drawn from NGOs were integrated into states' delegations in Rome is quite telling of the potential effects that their specific expertise may bring about. It may very well be that NGOs used to work in the interstices of the international system and that their whispers from the basement were barely audible upstairs to state representatives negotiating treaties. It can hardly be denied, however, that nowadays their conspicuous presence can be physically detected in the corridors of state diplomacy and their voice can be distinctly heard by any bystander. Two caveats to the above considerations seem to be in order. First, it would be misleading to think, as Kenneth Anderson aptly warns in his essay on the Ottawa Convention banning landmines (Chapter 1O), that such instances of law-making are evidence of a democratization


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of international law, some sort of springing of the law from below as opposed to the traditional interstate law-making. Quite the contrary, such a process only attests to the ever-increasing role of powerful transnational elites, and democratic legitimacy should not be conhsed with the ability to operate as pressure groups and mobilize certain segments of civil society (p. 248). Nor are NGOs necessarily to be identified with the good side as opposed to states being on the evil side, although some commentators maintain that 'irresponsible' states more than 'irresponsible' NGOs are the main problem (Kamminga, 2005, p. 11 1). Second, however thorough and systematic is the intervention of NGOs in the law-making process, the process still remains within the firm grasp of states (Martens, 2003). Once again, one is left with the choice of focusing on the formal aspects of law-making, in respect of which nothing seems to have dramatically changed, or of stressing the practical impact of unconventional actors in the formal processes. In domestic legal systems as well, laws are often adopted under pressure from lobby groups and yet the latter are not characterized as part of the law-making process. Similarly, at international law the substantial impact of NGOs on normative outcomes does not make them the formal law-maker. The tension between the 'politics of form' and the 'forms of politics' becomes palpable again and the identification of the subject proves to be, more and more, a struggle for determining who may legitimately and authoritatively allocate communal values, as Klabbers suggests in Chapter 3 (p. 55). Law Adjudication

Another relevant aspect is participation of non-state actors in international law adjudication processes. This expression can be taken to mean different things. First, it may refer to the possibility that non-state actors may be a party to international judicial proceedings. For instance, until recently the individual's lack of standing before international tribunals had been used as an argument to refuse the individual's subjectivity under international law. Nowadays, the developments that have occurred, primarily in the area of human rights, have deprived the argument of much of its force. Individuals have direct access to a number of international tribunals and may directly enforce their claims. A sketchy overview of the position of non-state actors before international jurisdictions is given by Orrego-Vicuiia (200 I), whose contribution has the merit of not limiting the analysis to the field of human rights. By and large, however, the most significant and widely discussed phenomenon in respect of participation in law adjudication processes is the submission by non-state actors, particularly NGOs, of amicus curiae briefs before international courts. Although already in the early 1990s participation of non-governmental organizations in international judicial proceedings had attracted scholarly attention (Shelton, 1994), the issue has gathered momentum particularly in recent years through the increasing practice of submitting amicus curiae briefs. Chapter 11 by Lance Bartholomeusz is the most comprehensive recent account of such practice and its inclusion in this volume of essays is justified both by its thorough treatment of the topic and by its attempt to draw some general inferences from this widely accepted practice. In fact, it is difficult to make generalizations because the issue ought to be broached on a 'tribunal by tribunal' basis as suggested by Watts (2001). International courts enjoy a great deal of discretion about whether or not to allow amicus curiae submissions, and in exercising such discretion they are obviously limited by the rules of procedure that govern their respective judicial body.

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Overall, the status and juridical nature of the amicus curiae remains uncertain. It is not the same as an expert or a witness, although it may occasionally overlap with these other categories. As regards its functions, they can be varied. Amici can provide legal expertise or factual information; provide assistance to persons and entities that may be affected by a decision in accessing the court; or act on the basis of public interest considerations as some sort of 'trustees' for the protection of communal interests. It may aptly be wondered whether this relatively new practice effectively contributes to the legitimacy and transparency of international jurisdictions. The answer must be anuanced one. Despite some scattered reference in arbitral awards to the ~ontrary,~ participation in judicial proceedings and transparency of the latter seem to be two distinct issue^.^ As regards the issue of legitimacy, the argument is double-edged. On the one hand, amici's participation to protect community interests can be perceived by the public at large as a means to ensure greater legitimacy to judicial proceedings which most ofthe time remain firmly within the grasp of power-wielding entities (Stern, 2006). On the other hand, in certain particular contexts, the increasing involvement of civil society groups and professional associations can be perceived by the 'users' of judicial mechanisms as an undue interference and, potentially, a disruptive element in the complex process of interest-accommodation that third party settlement inevitably entails. Law Enforcement Non-state actors may also effectively participate in law enforcement processes. Once again, this may occur in a variety of forms. Arelatively simple example is provided by Astrid Epiney's work (2006) on the role of NGOs in ensuring compliance with multilateral environmental agreements. By complementing the states in relevant compliance or enforcement mechanisms, NGOs could effectively contribute to enhancing the overall effectiveness of multilateral environmental agreements. Indeed, environmental protection and human rights represent the two areas in which the potential role for non-state actors in implementing international law standards is most evident. Given the well-known reluctance of states to complain publicly about their fellow states in cases of violations of international law,7 it is often NGOs that draw attention to such violations. More generally, NGOs participate in monitoring activities, either directly or indirectly, and may trigger mechanisms of compliance or enforcement. Their capacity to gather information, provide expertise and mobilize public opinion makes

See, among others, the NAFTA tribunal decision in Methanex Corp. v. United States. Decision on Petitions from Third Persons to Intervene as 'Amici Curiae', 15 January 2001, para. 49, and the ICSID tribunal decision in Aguas Argentinas S.A. and Others v. Argentina. Order in response to a Petition for Transparency and Participation as Amicus Curiae, ICSID Case No. ARB/03/19, 19 May 2005, para. 22. See the declarations of Canada ($$ 71-72) Turkey ($ 80) and Argentina ($ 93) at the WTO General Council Meeting of 2 November 2000 (WT/GC/M/60,23 January 2001). It is of note that states hardly ever take advantage of interstate claims mechanisms under human rights treaties such as Article 41 of the UN Covenant on Civil and Political Rights, Article 11 of the UN Convention on the Elimination of all Forms of Racial Discrimination or Article 21 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 33 of the European Convention on Human Rights concerning interstate claims has also been rarely applied.


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NGOs powerful actors in the implementation of international law, even in situations of armed conflict. A particularly interesting example of the way in which non-state actors have come to play a major role in checking the conduct of state actors is the Inspection Panel of the World Bank. The insights provided by Alix Gowlland Gualtieri's essay on the environmental accountability of the World Bank to non-state actors (Chapter 12) are particularly useful in appreciating this innovative form of control over the World Bank's projects and their consistency with environmental and social policies which the institution has pledged to respect. Participatory requirements stipulate that non-state actors, such as individuals, interest groups and local communities, be legally protected against the loan development operations of the World Bank. Regardless of any other consideration concerning the technical arrangements and actual practices of the Inspection Panel, the accountability mechanism set up within the World Bank further attests to the multiplicity of ways in which non-state actors can effectively contribute to implementing international law and international policies. As I attempt to show in my essay on 'Globalization of Human Rights: The Role of Nonstate Actors' (Chapter 13), the end result of these multifarious processes is that non-state actors generally, and NGOs more particularly, can create transnational solidarities and gather consensus over certain values, sometimes regardless of whether they are embodied in formal rules. In other words, they tend to create communication processes on the transnational level whereby the conduct of states is not necessarily evaluated in terms of its compliance with legally binding rules, but rather by a much less formal code, according to which the legality of their action largely depends on its being consistent with certain values, the respect of which is perceived to be mandated by law. The relevance of this process cannot be underestimated, as it casts a new light not only on the way in which non-state actors operate internationally, but also and, perhaps, most importantly, on the changing modes by which the distinction legal1 illegal is perceived and applied by relevant actors in contemporary international society.

Non-State Actors' Accountability: The Quest for New Paradigms (Or yet another slip of the international lawyer's tongue) The heterogeneity of non-state actors makes the issue of their accountability complex. Although the notion of accountability is far from being neatly defined, let alone in the legal field, the core of its meaning in this context can be intuitively grasped. Accountability is taken to refer to any form of control that can be used to hold any given actor accountable for its conduct. The standards against which such an evaluation must be performed are various and not all of them are amenable within the purview of the law, properly so-called. In this respect, recourse to what August Reinisch, in Chapter 14, 'The Changing International Legal Framework for Dealing with Non-State Actors', calls a 'legal framework' may be of some utility. Approaching pragmatically the issue ofhow to deal with non-state actors in human rights law (even though his remarks lend themselves to a certain degree of generalization), Reinisch identifies a number of elements which constitute the proposed concept of 'legal framework', ranging from behavioural standards and the procedures used to discuss, supervise and enforce them to the institutions and networks within which the procedures are implemented. Against this backdrop, issues of accountability become somewhat more immanent and intelligible if not expressed in positivistic legal terms.

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Yet one should not think that accountability stands in contradistinction to legal responsibility, properly so-called. As far as individuals are concerned, for instance, mechanisms of legal accountability have steadily developed since Nuremberg. The principle of individual criminal liability for at least some core international law crimes is widely recognized as a matter of customary international law, and individual criminal liability is also attached to a number of conducts proscribed by specific treaties. If the principle of individual criminal liability is no longer seriously called into question, major flaws still hamper its effective implementation. Until recently international criminal jurisdictions have been scant and the International Criminal Court is still in its infancy. Domestic jurisdictions, which, according to the principle will bear the main burden for adjudicating international crimes, have not of c~mplementarity,~ been too active on the enforcement side (Ratner and Abrams, 2001, pp. 160 ff), mostly due to the carelessness of national legislators in failing to provide them with the necessary enabling legislation to apply international criminal law standards. Rather than focusing on well-known doctrines, the choice of materials as regards individual responsibility is directed towards considering the expansion of international criminal law: in particular, the punishment of nonstate actors for international crimes in non-international armed conflicts and the ancillary issue of the prosecution, by the ad hoc criminal tribunals, of acts of torture committed by nonstate actor^.^ This is clarified in William Schabas' essay on 'Punishment of Non-State Actors in Non-International Armed Conflict' (Chapter 15) and Jill Marshall's essay on 'Torture Committed by Non-State Actors: The Developing Jurisprudence from the Ad Hoc Tribunals' (Chapter 16). Indeed, these developments seem to lend support to the theories that consider that the scope of application of certain international law norms must not be predetermined on the basis of any abstract notion of legal personality, but must be geared towards the realization of the norm's underlying values, particularly as they relate to human rights or humanitarian concerns. Entirely different considerations apply to the accountability of transnational corporations. The most impressive account of a theory of the legal responsibility of corporations for human rights abuses is Steven Ratner's book-length Yale Law Journal essay (2001-2002). Ratner develops an international law-based theory of corporate responsibility, whereby international obligations can be deemed to address corporate entities insofar as the latter cooperate with states and commit violations of the human dignity 'of those with whom they have special ties' (ibid., p. 449). An array of tools for the implementation of the theory is also put forward, ranging from corporate-initiated codes of conduct, NGO scrutiny and national legal regimes to soft international law and treaties. The merit of Ratner's theory lies in its comprehensive character and in its foundation in international law rather than the domestic law of any particular state. Given that a large part of domestic litigation involving the human rights abuses of corporate entities has taken place in the US on the basis of the Alien Tort Claims Act and that most of the literature relies on this strand of domestic case law to account for the responsibility of corporate entities (Joseph, 2004), such a wider focus is indeed welcome. Article 17 of the International Criminal Court Statute provides for the inadmissibility of cases that are being investigated or prosecuted by a state that has jurisdiction over them, unless that state is unwilling or unable genuinely to carry out the investigation or the prosecution, thus creating a primacy of national jurisdictions over the ICC. On the role of the ICC in ensuring punishment of individual non-state actors, see Zellweger and Koller (2007).


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Furthermore, Ratner (200 1-2002, p. 545) emphasizes the importance of other elements, not necessarily of a legal character, which may prompt the accountability of corporate entities. Corporate social responsibility as well as market incentives to comply with international standards in certain areas may well provide additional tools for a comprehensive system of corporate accountability. In an essay on state responsibility for extraterritorial violations of human rights by corporations (Chapter 17), Robert McCorquodale and Penelope Simons advocate another

approach to the issue of corporate responsibility for human rights abuses, namely an expansive reading and use of the rules on state responsibility. By focusing on the applicability of human rights obligations incumbent on the home state to the extraterritorial acts of the national corporate entity, the authors apply the relevant rules of state responsibility to the conduct of home states with a view to holding them accountable for the acts of their corporate entities.I0 This approach has the merit of fostering solutions that are clearly available within the system - the rules on state responsibility - and provide states with an incentive to act diligently if they want to avoid international responsibility. To argue that states should be responsible for the acts of national corporate entities abroad makes sense, particularly as one realizes that home states attempt to impose their laws and regulations on foreign subsidiaries of corporate nationals in a number of areas, ranging from export controls to antitrust regulation. The argument that the same states should be accountable for the acts of the same entities when these violate human rights standards could reasonably follow. Criteria of attribution for the purpose of state responsibility, such as the exercise of elements of governmental authority or the direction or control by the state of the relevant activities, could well provide adequate tools for the implementation of such normative strategy. Two considerations, however, might stand in the way. The first is the acknowledgment that states do not seem inclined to accept such an expansive reading of their obligations under international law, and international practice does not seem to develop in that direction. The second remark stems from an assessment of the judicial policy of the International Court of Justice on matters of attribution. It will be recalled that in one of the few instances of conflicting jurisprudence among international jurisdictions, the ICJ made use of the criterion of 'effective control' to attribute the conduct of groups of individuals to a state," whereas the Appeals Chamber of the International Tribunal on Former Yugoslavia (ICTY) later adopted ' ~ the recent Genocide case,I3 the ICJ has a much softer criterion, that of 'overall c o n t r ~ l ' . In reiterated its previous jurisprudence and made clear, not without some institutional acrimony,I4 that general international law requires 'effective control' for conduct carried out by an In

For an earlier approach along similar lines, see Fatouros (1983). More generally, on the applicability of the rules of state responsibility to the conduct of individuals or groups of individuals, see Roucounas (2005) and Wolfrum (2005). See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States ofAmerica), ICJ Reports 1986, pp. 6445, para. 115. l2 See Prosecutor v. Dusko TadiE, ICTY, N0IT-94-1-A, Appeals Chamber, 15 July 1999, paras 11545. See Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime ofCenocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Reports 2007, paras 396407. IJ Ibid., para. 403.

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individual or a group of individuals to be attributed to a state. Besides the institutional aspects of the dispute between the two tribunals, it is reasonable to speculate that the ICJ, whose selfperception as the guardian of the international legal system is traditionally strong, when opting for the much more stringent criterion of 'effective control', must have had in mind not only the circumstances of the case, but also the potential application of the criterion to other areas, including state responsibility for terrorist acts and state responsibility for the extraterritorial acts of corporate entities. The discussion boils down to determining whether, for the purpose of assuring the accountability of non-state actors, to have recourse to traditional mechanisms of state responsibility is a good normative strategy to ensure greater effectiveness. At the very least, this can be doubted. As regards the accountability of NGOs, Erik Bluemel's essay on 'Overcoming NGO Accountability Concerns in International Governance' (Chapter 18) is evidence of how tenuous the border between international law and other social sciences has become. Bluemel's approach is interesting insofar as his work attempts to move the debate about accountability from the actor to the function performed. In so doing, he puts forward a composite theory of NGO accountability in international governance, which does away with many of the traditional dividing lines peculiar to the field of law, such as internationaVdomestic and publiclprivate. To speak in terms of international governance rather than in terms of international legal order may be more an issue of disciplinary allegiance than a real difference of conceptual categories. To dismiss as 'non-law' social practices that constitute the fabric of day-to-day international life and are increasingly perceived by the relevant actors as demanding respect as a matter of law may be an attitude that fosters certain vested professional interests, but it is unlikely to advance the cause of international law and enhance its credibility (Krisch and Kingsbury, 2006). In this respect, interdisciplinary dialogue may well produce interesting outcomes and, for once, may be instrumental in providing a better understanding of societal dynamics. Conclusions

There is no definitive answer to the query posed in the title of this introduction. Whether the solution lies in relativizing the subjects or, rather, in subjectivizing the actors remains open to doubt. The constant swing of the pendulum from the normative to the descriptive mesmerizes the observer and makes him wonder whether the observed reality can provide the answers he is looking for. Ultimately, this will depend on the kind of questions that are asked. A draconian way to look at things would be to maintain that the very title of this edited volume is somewhat of an oxymoron. International law as a normative and political project is indissolubly linked to states, and non-state entities may not legitimately lay claim to forming part of the system. Such a drastic way of thinking would have the merit of reducing the complexity of the debate, although it would probably lead to a greater marginalization of international law. On the other hand, if we acknowledge that international law has changed dramatically in the past few decades, the need to reformulate some of its foundational tenets seems an obvious solution. The contemporary international community, which provides the terrain in which the game of international law is played, is no longer perceived as consisting solely of states and, inevitably, the inclusion/exclusion mode with which the traditional theory of subjects has been set and used in a restrictive fashion to preserve the integrity of the system needs to be reconsidered. An alternative conceptual framework has not been created and the


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language of other disciplines has been borrowed to provide a temporary accommodation. That the participants need 'legitimacy' and must be made 'accountable' is an expression that would mean little to many positivist lawyers and yet seems to have become part and parcel of the fabric of international law. International law, however, remains a 'pragmatic project', which tends to accommodate societal and normative developments in a pragmatic fashion. The functional purpose of qualifying certain entities participating in international law processes as subjects or actors may not make such a big difference in practice. Transnational corporations are unlikely to be the addressees of the rules of maritime delimitation but they might be called upon to respect certain fundamental international human rights norms. NGOs are not going to be recognized as having any formal treaty-making power, and yet they will continue to play an important role in international law-making. However, as Alston rightly noted, the 'negative and euphemistic term' of non-state actors may not 'stem from any language inadequacies' but may have been adopted 'to reinforce the assumption that the state is not only the central actor, but also the indispensable and pivotal one around which all other entities revolve' (2005, p. 3). In fact, the disjunction between theory and practice and the strain between the different ways of looking at the same reality are a symptom of a more general disease affecting international law. The 'politics of forms' has long exhausted its ordering function and has been supplanted by a panoply of other narratives which tell different stories about the same reality. The challenge is to inquire afresh about the 'Subject', not so much in the narrow context of this edited volume, but in the much broader framework of inquiry of 'who or what it is that thinks or produces law' (Schlag, 1991, p. 1629; Caudill, 1993, p. 7 10). Until a satisfactory account of the 'Subject' is given, to reason in terms of 'subjects', 'actors', 'participants' or whatever else will be either a matter of preference or a struggle for power to legitimize or exclude some of the players. What needs to be understood, however, is the game. References

Allott, Philip (1990), Eunomia: New Order for a New World, Oxford: Oxford University Press. Alston, Philip (2005), 'The "Not-a-Cat" Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?', in Philip Alston (ed.), Non-State Actors and Human Rights, Oxford: Oxford University Press, pp. 3-36. Arangio-Ruiz, Gaetano (1996), 'On the Nature of the International Personality of the Holy See', Revue belge de droit international, 29, pp. 35449. Arend, Anthony C. (1998), 'Do Legal Rules Matter? International Law and International Politics', VirginiaJournal of International Law, 38, pp. 107-53. Bianchi,Andrea (2008), 'Human Rights and the Magic of Jus Cogens', European Journal oflnternational Law, 19, pp. 491-508. Bourdieu, Pierre (1981), 'The Specificity of the Scientific Field and the Social Conditions of the Progress of Reason', in Charles C. Lemert (ed.), French Sociology: Rupture and Renewal Since 1968, New York: Columbia University Press, pp. 257-92. Breen, Claire (2003), 'The Role of NGOs in the Formulation of and Compliance with the Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict', Human Rights Quarterly, 25, pp. 453-81.

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Breen, Claire (2005), 'Rationalising the Work of UN Human Rights Bodies or Reducing the Input of NGOs? The Changing Role of Human Rights NGOs at the United Nations', Non-State Actors and International Law, 5, pp. 101-26. Buchanan, Allen E. (2007), Justice, Legitimacy, and Self-determination: Moral Foundations for International Law, Oxford: Oxford University Press. Caudill, David S. (1993), 'Pierre Schlag's "The Problem of the Subject": Law's Need for an Analyst'. Cardozo Law Review, 15, pp. 707-32. Charnovitz, Steve (1996-97), 'Two Centuries of Participation: NGOs and International Governance'. Michigan Journal of International Law, 18, pp. 183-286. Cheng, Bin (1991), 'Introduction to Subjects of International Law', in M. Bedjaoui (ed.), International Law: Achievements and Prospects, Paris and Dordrecht: UNESCO and Martinus Nijhoff, pp. 2 3 4 0 . Clapham, Andrew (2006a), 'Human Rights Obligations of Non-State Actors in Conflict Situations', International Review of the Red Cross, 88, pp. 491-523. Clapham, Andrew (2006b), Human Rights Obligations of Non-State Actors, Oxford: Oxford University Press. Dupuy, Pierre-Marie (2003), 'Comments on Chapters 4 and 5', in Michael Byers and George Nolte (eds), United States Hegemony and the Foundations of International Law, Cambridge: Cambridge University Press, pp. 176-96. Dupuy, Pierre-Marie (2005), 'Proliferation ofActors: Comment', in Riidiger Wolfrum and Volker Roben (eds), Developments of International Law in Treaty Making, Berlin: Springer, pp. 53742. Epiney, Astrid (2006), 'The Role of NGOs in the Process of Ensuring Compliance with MEAs', in Ulrich Beyerlin, Peter-Tobias Stoll and Riidiger Wolfrum (eds), Ensuring Compliance with Multilateral Environmental Agreements: A Dialogue between Practitioners and Academia, Leiden and Boston: Martinus Nijhoff, pp. 319-52. Fatouros, Arghyrios A. (1983), 'Transnational Enterprise in the Law of State Responsibility', in Richard B. Lillich (ed.), International Law of State Responsibility for Injuries to Aliens, Charlottesville: University of Virginia Press, pp. 371403. Franck, Thomas M. (1990), The Power of Legitimacy among Nations, New York: Oxford University Press. Franck, Thomas M. (1999), The Empowered SeK Law and Society in the Age of Individualism, New York: Oxford University Press. Hart, Herbert L.A. (1961), The Concept of Law, Oxford: Clarendon Press. Higgins, Rosalyn (1994), Problems and Process: International Law and How We Use It, Oxford: Clarendon Press. Jennings, Robert Y. (1998), 'The Judiciary, International and National, and the Development of International Law', in Collected Writings of Sir Robert Jennings, The Hague: Kluwer, vol. 11, pp. 796-812. Joseph, Sarah (2004), Corporations and Transnational Human Rights Litigation, Oxford and Portland, OR: Hart. Kamminga, Menno T. (2005), 'The Evolving Status of NGOs under International Law: A Threat to the Inter-State System?', in Philip Alston (ed.), Non-State Actors and Human Rights, Oxford: Oxford University Press, pp. 93-1 11. Kolb, Robert (2007), review of Janne Nijman, The Concept of International Legal Personality: An Inquiry into the History and Theory of International Law, in European Journal of International Law, 18, pp. 775-76. Korkeakivi, Antti (1993), 'People's Rights -An Overview', Finnish Yearbook of International Law, vol. IV, pp. 281-325. Koskenniemi, Martti (2007), 'The Fate of Public International Law: Between Technique and Politics', Modern Law Review, 70, pp. 1-30.


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Krisch, Nico and Kingsbury, Benedict (2006), 'Introduction: Global Governance and Global Administrative Law in the lnternational Legal Order', European Journal oflnternational Law, 17, pp. 1 3 4 5 . McCorquodale, Robert (2004), 'An Inclusive Legal System', Leiden Journal oflnternational Law, 17, pp. 477-504. McCorquodale, Robert (2006), 'Beyond State Sovereignty: The International Legal System and NonState participants'. Revista colomhiana de derecho internacional, 8, pp. 103-59. Martens, Kerstin (2003), 'Examining the (Non-)Status of NGOs in International Law', Indiana Journal ofGloba1 Studies, 10, pp. 1-24. Masciulli, Joseph (2006), review of Janne Nijman, The Concept of lnternational Legal Personality: An Inquiry into the History and Theory of lnternational Law, in Law & Politics Book Review, 16, pp. 34245. Mertus, Julie (1999-2000), 'Considering Non-State Actors in the New Millennium: Toward Expanded Participation in Norm Generation and Norm Application', New York University Journal of lnternational Law and Politics, 32, pp. 5 3 7 4 6 . Nijman, Janne E. (2004), The Concept oflnternational Legal Personality: An Inquiry into the History and Theory of lnternational Law, The Hague: T.M.C. Asser Press. Nowrot, Karsten (2005), 'New Approaches to the International Legal Personality of Multinational Corporations: Towards a Rebuttable Presumption of Normative Responsibility', Paper delivered at the 2005 Geneva Research Forum on International Law, organized by the European Society of pp. 1-26). lnternational Law (published online at http:/lwww.esil-sedi.eu/english/pdflNowrot.PDF Orrego-Vicuiia, Francisco (2001 ), 'Individuals and Non-State Entities before lnternational Courts and Tribunals', Max Planck Yearbook of United Nations Law, 5, pp. 5 3 4 6 . Perry, Stephen R. (1995), 'Interpretation and Methodology in Legal Theory', in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy, Oxford: Clarendon Press, pp. 97-135. Prescott, Elizabeth M. (2007), 'UNSCR 1540 and the Scientific Community as a Non-State Actor', in Olivia Bosch and Peter Van Ham (eds), Global Non-Proliferation and Counter-Terrorism: The Impact of UNSCR 1540, The Hague: Clingendael Institute, pp. 41-53. Ratner, Steven R. (2001-2002), 'Corporations and Human Rights: A Theory of Legal Responsibility', Yale Law Journal. 111, pp. 443-545. Ratner, Steven R. and Abrams, Jason S. (2001), Accountability for Human Rights Atrocities in International Law (2nd edn), Oxford: Oxford University Press. Roben, Volker (2005), 'Proliferation of Actors', in Riidiger Wolfrum and Volker Roben (eds), Developments of lnternational Law in Treaty Making, Berlin: Springer, pp. 51G36. Roucounas, Emmanuel (2005), 'Non-State Actors: Areas of International Responsibility in Need of Further Exploration', in Maurizio Ragazzi (ed.), International Responsibility Today: Essays in Memory ofOscar Schachter, Leiden and Boston: Martinus Nijhoff, pp. 391404. Schlag, Pierre (1991), 'The Problem of the Subject', Texas Law Review, 69, pp. 1627-1743. Shelton, Dinah (1994), 'The Participation of Nongovernmental Organizations in International Judicial Proceedings', American Journal of International Law, 88, pp. 61 1-42, Stern, Brigitte (2006), 'The Emergence of Non-State Actors in International Commercial Disputes Through WTO Appellate Body Case-Law', in Giorgio Sacerdoti, Alan Yanovich and Jan Bohanes (eds), The WTO at Ten: The Contribution ofthe Dispute Settlement System, Cambridge: Cambridge University Press, pp. 372-85. Tomuschat, Christian (1986), 'Rights of Peoples: Some Preliminary Observations', in Yvo Hangartner and Stefan Trechsel (eds), Volkerrecht im Dienste des Menschen, Bern and Stuttgart: Verlag Paul Haupt, pp. 337-54. Vazquez, Carlos M. (2004-2005), 'Direct vs. Indirect Obligations of Corporations under International Law', Columbia Journal of Transnational Law, 43, pp. 927-59.

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Watts, Arthur (2001), 'Enhancing the Effectiveness of Procedures of International Dispute Settlement', Max Planck Yearbook of United Nations Law, 5, pp. 21-39. Weil, Prosper (1992), 'Le droit international en qu&tede son identitC: cours gCnCral de droit international public', Recueil des cours, 237N1, pp. 9-370. Wolfmm, Rudiger (2005), 'State Responsibility for Private Actors: An Old Problem of Renewed Relevance', in Maurizio Ragazzi (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter, Leiden and Boston: Martinus Nijhoff, pp. 423-34. Zellweger, Valentin and Koller, David (2007), 'Non-State Actors, International Criminal Law and the Role of the International Criminal Court', in Stephen Breitenmoser, Bernhard Ehrenzeller and Marco Sassoli (eds), Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber, Ziirich: Dike, pp. 1619-34.

Part I Non-state Actors in the Theory of International Law

T H E SUBJECTS OF I N T E R N A T I O N A L LAW Hersch Lauterpacht

47. The dejnition of subjects of international law As in any other legal system, so also in the international sphere the subjects of law are the persons, national and juridical, upon whom the law confers rights and imposes duties. I n international law these persons are normally States; but they are not so exclusively. Organizations of States, having a different juridical personality from the States composing them, may and have become subjects of international law. This is hardly startling seeing that it is difficult to deny to States acting in association the unchallenged legal personality which they possess when acting in isolation. Individuals possess in a limited sphere international legal personality, not always accompanied by corresponding procedural capacity, accorded to them expressly or by implication. For these reasons the relevant part of the definition of international law given above1 speaks of international law as a body of rules 'which confer rights and impose obligations primarily, though not exclusively, upon sovereign States'. However, the view that entities other than States can be subjects of international law has been denied by many; and although opposition to it has receded under the impact of modern developments it cannot, as yet, be said that it has been generally accepted. Its effects linger, in some ways, in existing international law.

48. The traditional view According to what may be described as the traditional view in the matter, States only and exclusively are the subjects of international law. In particular, on that view, individuals are not the subjects of international law; they are its objects in the sense that by customary and conventional law States may be bound to observe certain rules of conduct in relation to individuals. Thus, while they may be bound to accord privileged treatment to foreign diplomatic representatives, the latter are not on that account subjects of international law; the right to privileged treatment is the right of their own State. See above, p. 9.

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Similarly, although aliens residing in the territory of a foreign State are entitled to be treated by it in conformity with rules of international law, according to the traditional view the resulting rights are not the rights of the alien but of his State.1 Although in concessionary or similar contracts made with a foreign State the individual alien may agree not to have recourse to protection by his own State until he has exhausted the local remedies available to him, he cannot effectively renounce the protection of his own State if the rights recognized for his benefit by international law have been violated; for these are not his rights but those of his State. Further, it would seem to follow from the view stated above that a treaty cannot directly confer rights upon individuals and, generally, that international law cannot do so unless these rights are incorporated as part of municipal law. The rigid exclusion of bodies other than States and of individuals from exercising any procedural capacity before international tribunals would appear to be yet another consequence of the traditional doctrine. As will be shown in this chapter, there are other equally far-reaching consequences of that view as here outlined. In its main aspects the doctrine stated above gives an accurate picture of the existing position in international law. However, it is important to qualify it; to note the numerous exceptions to its operation; and, above all, to bear in mind that the range of subjects of international law is not rigidly and immutably circumscribed by any definition of the nature of international law but is capable of modification and development in accordance with the will of States and the requirements of international intercourse. These propositions will now be considered in relation: ( a ) to collective bodies other than States; (b) to individuals.

49. Collectiue bodies other than States International practice has recognized that bodies other than States may on occasions be endowed by international law with rights and made subject to its duties. This may occur, for instance, in the case of persons engaged in hostilities against their lawful Government For a n authoritative statement of this principle see the following passage of the Judgment of the Permanent Court of International Justice in the case of the Serbian Loam: 'reference should be made to what the Court has said on several occasions, and in particular in Judgments No. 2 and 13, namely, that by taking up a case on behalf of its nationals before an international tribunal, a State is asserting its own right-that is to say, its right to ensure, in the person of its subjects, respect for the rules of international (ibid. no. 1 7, law' (Series A, nos. 20121, p. I 7). See also the Chorrdw Factory cme (Merits) P P 27, 28).

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and recognized as belligerents by other States. Such belligerents, without having been recognized as a State, become entitled to exercise as against neutrals certain rights of war. They also become subject to the obligations of the law of war. The same, on a more limited scale, applies to persons recognized as insurgents, In a different sphere, political units not as yet endowed with full statehood have been treated as subjects of international law. This was the case of the Holy See between its extinction as a State in 1870 and the restoration of its temporal sovereignty in the Lateran Treaty of 1929 in the international sphere. I n the intervening period the Holy See, although not a State in international law, concluded treaties and sent and received diplomatic representatives-it was a subject of international law. The British Dominions, prior to their achieving full statehood in the sphere of international relations, acted and were treated for various purposes-for instance, in the matter of conclusion of treaties and diplomatic intercourse--as fully sovereign States. Moreover, it is now generally recognized, in a variety of treaties and otherwise, that international public bodies composed of States possess an international personality and as such are subjects of international law. This applies, in particular, to the so-called specialized agencies of the United Nations such as the International Labour Organisation, the International Civil Aviation Organization, the Food and Agriculture Organization, the United Nations Educational and Cultural Organization, and others. The constitutions of these bodies provide for a measure of separate personality in respect of each of them. Thus the constitution of the Food and Agriculture Organization lays down that 'the Organization shall have the capacity of a legal person to perform any legal act appropriate to its purpose which is not beyond the powers granted to it by this Constit~tion'.~ The Treaty of 1952 constituting the European Coal and Steel Community provides not only generally that the Community shall have juridical personality but also specifically that in its international relationships the Community shall enjoy the juridical capacity necessary for the exercise of its functions and the attainment of its ends.2 The capacity of public international organizations to conclude treaties is recognized in their constitutions Article xv(1) of the Constitution. The constitutions of other specialized agencies and other international organizations confine themselves to laying down that the organization shall enjoy in the temtory of each of its members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its objectives. a Article 6 of the Treaty: AJ. 46 (rg52), Suppl. p. 109.

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and frequently acted upon in practice. They have concluded agreements with one another, with the United Nations, and with individual States, and these have been registered like 'every treaty and every international agreement' under Article 102 of the Charter. Thus, for instance, the International Labour Organisation concluded, in 1946, an agreement with Switzerland concerning the priviIeges and immunities of the Organisation in that c0untry.l The Treaty of 1957 establishing the European Atomic Energy Community provides expressly that, within the limits of the powers conferred upon it, the Community may enter into agreements or conventions with an outside State or an international organization.2 The specialized agencies possess a degree of procedural capacity before the International Court of Justice as a result of having been granted, in Article 96 of the Charter of the United Nations, the right to ask, subject to authorization by the General Assembly, for an Advisory Opinion of the Court. That authorization has invariably been granted in general terms3 and has been used.4 Previously the international personality of public international organizations had been recognized in various ways by decisions of various court^.^ The international personality of numerous other bodies-such as the Reparation Commis~ion,~ the international river commissions or the Cape Spartel Lighthouse Commission7-has often been asserted, probably with justificati~n.~ U.N.T.S. 15, 378. Article I O I of the Treaty: A.3. 51 (1957)~ Suppl. p. 984. For details see Lauterpacht, International Law and Human Rights (1950)~p. 16. See also the same in Grotiw Society, 32 (1g46), 1-41. 4 See Advisory Opinion of 23 October 1956, in the case of the Judgments of the .4dministmtiue Tribunal of the International Labour Organization upon Complaints made against UNESCO (I.C.J. Reports 1956, p. 77). In 1931 the Italian Court of Cassation held in the case of International Institute of Agriculture v. Profili (Annual Digest, 5 (1g29-30), Case no. 254) that the International Institute of Agriculture was an 'international person . . free . . . from interference by the sovereign power of the States composing the Union [i.e., the Institute of Agriculture] '. The Court overruled the Court of Appeal of Rome which had held that the Institute was not a subject of international law seeing that it did not exercise sovereignty over a fixed territory and a population. See also Godman v. Winterton, decided in 1940 by the English Court of Appeal (Annual Digest, I I (1g19-42), Case no. I I I), where it was held that the members of the Intergovernmental Committee for Refugees were entitled to jurisdictional immunity seeing that it was a Committee of sovereign States-a line of reasoning which may be regarded as in accordance with the view, suggested in the text above, that the international personality of public international bodies and their quality as subjects of international rights and duties follows from the fact that they are associations of States of which each is a subject of law. See also International Refugee Organisation v. Republic S.S. Corp. decided by the United States Court of Appeals (Z.L.R. 18 ( r g g ~ ) , Case no. 140). See Fischer Williams in B.2: 13 (1g32), 33-5, and in A.3. 24 (1930), 665. 7 For a bibliography on the international personality of these bodies see Jenks in B.1: 22 (1945)~ 267 n. I . See also Morelli in Hague Renreil, 89 (1956) (i), 557-84, and in 3

.

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GENERAL PART

The question of the position of the League of Nations as a subject of international law was widely discussed but never judicially determined. On the other hand, in the Advisory Opinion in the case concerning Reparation for Injuries Sufeered in the Service of the United Nations the International Court of Justice rejected the view that only States can be subjects of international law and affirmed the international personality of the United Nations as being indispensable to the fulfilment of the purposes for which it was created. The Court pointed out, with regard to the more general question of subjects of international law, that 'throughout its history, the development of international law has been influenced by the requirements of international life' and that 'the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States'.l 'Such new subjects of international law', the Court explained, 'need not necessarily be States or possess the rights and obligations of statehood.' For 'the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community'.2 As already stated, the question of the international legal personality Rivista, 40 (1957), 3-25; Zemanek in 0.2.o.R. 7 (1956), 335-72. AS to the contractual capacity of international unions see Capotorti in Comunicazioni e Studi, 7 (1g55), 145-98. From public international organizations-which are organizations composed of States-there must be distinguished international organizations of individuals and private associations, of which there is a very considerable number. A French tribunal has held that a Committee of debenture holders of the Danube-Adriatic Railway Company, a Committee empowered by the Treaty of Trianon of 1919 to represent the interests of the holders, was 'necessarily and validly endowed. . with legal personality in international law' which enabled it to sue in French courts: see Vigoureux v. Comiti des Obligataires Danube-Save-Adriatique (I.L.R. 18 (1951),Case no. I ) . On the consultative status of private international organizations by virtue of Article 71 of the Charter authorizing the Economic and Social Council to make 'suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence' as well as by virtue of the constitutions of the various specialized agencies see Lauterpacht, International Law and Human Rights (1950), pp. 23-6. Also, as to the access of non-governmental organizations to the Headquarters of the United Nations for 434-50. consultative purposes, see Liang in A.3 . 48 (1954)~ I.C.J. Reports 1949, p. 174. a Ibid. a t p. 178. As international personality is not limited to States, the latter are bound to fulfil international duties-i.e. duties prescribed by general international law -not only in relation to other States but, in proper cases, to international persons generally. This explains why in the Reparation for Injuries case the International Court of Justice held that the United Nations was entitled to bring a claim even against a nonmember State, although in the same case the Court held that the basis of the claim by the United Nations was a breach of a duty to it. For, once the Court found that the United Nations was endowed by the Charter with international personality not only in relation to its Members but erga omnes (ibid. at p. 185), it followed that all States-whether Members of the United Nations or not-owed it duties as prescribed by general international law. Sed quaere. See Fitzmaurice in B. Y.29 ( Ig52), 2 1.

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of an association of States each of which is indisputably a subject of international law ought not to give rise to difficulty. However, that Advisory Opinion must be regarded as one of the most important pronouncements of the Court inasmuch as it provided a much-needed qualification of the doctrine that only sovereign States are the subjects of international law. I t may also be noted that international practice recognizes in the contractual field a measure of international personality of territorial units, such as colonies and dependencies, which are not States but which nevertheless are admitted to participation in their own name in public organizations of States such as the Universal Postal Union or the World Health Organization. 50. The individual as a subject of international law As a matter of moral principle, individuals have no independent position in international law and any rights which they may possess and any duties to which they may be subject in consequence of international law are rights and duties prescribed by the municipal law of the State. However, that principle is not absolute, and it is necessary to bear in mind the numerous exceptions which the practice of States has already engrafted upon it. These exceptions cover both rights and duties created by international custom and treaty. With regard to duties, the most important example of direct subjection of individuals to international law is the operation of the law of war. It is an established principle that individual members of the armed forces of a belligerent are bound as such by the law of war and that the belligerent into whose hands they may fall is entitled to punish them for violations of that law-even if, at least in the case of ruthless and inhuman crimes against the law of war, they acted in obedience to superior orders. It was by reference mainly to violations of the law of war that the International Tribunal for the Trial of Major War Criminals rejected, in 1946, the view that, as States only are subjects of international Iaw, there could be no individual responsibility for the violation of the laws of war. I t is often contended, without apparent exaggeration, that piracy jure gentium is no mere formula and that it constitutes a direct imposition upon individuals of the duty, under international law, not to commit piracy-although there is room for the view that States exercise jurisdiction over aliens in the matter of piracy by virtue of a customary rule according to which States concede to each other the right to exercise jurisdiction over their subjects for the com-

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mission of piracy rendered criminal by municipal law. Moreover, the municipal law of many States penalizes in other spheres what are termed violations of the law of nations, for instance, offences against foreign diplomatic representatives. In an early case, Respublica v. De Longchamps, decided in 1784 by a Pennsylvania Court, the accused-who had insulted the French ambassador-was found guilty of a 'violation of the law of nations'.= I n a distinct sense, in countries in which international law is, by legislation or ~therwise,~ incorporated as part of the law of the land, it may be considered that the duties-as well as rights--of international law are directly operative in relation to individuals; this is so although such direct effect of international law is due to a general act of incorporation. The constitutions of some countries provide expressly that international law directly creates rights and duties for the inhabitants of the State.3 Moreover, treaties may impose duties directly upon individuals. This is probably the effect of the Convention of 1948 for the Prevention and Punishment of the Crime of Genocide. Similarly, both customary and conventional international law may confer rights directly upon individuals. I n the Advisory Opinion concerning the Jurisdiction of the Courts of Danzig, the Permanent Court held that although in principle a treaty cannot, as such, create direct rights and obligations for private individuals, 'the very object of a n international agreement, according to the intention of the contracting parties, may be the adoption by the parties of some definite rules creating individual rights and obligations and enforceable by national c o ~ r t s ' .The ~ Court rejected the view that as the provisions of a treaty adopted in favour of Danzig railway officials had not been incorporated in Polish law, those officials had no enforceable right of action. As will be indicated presently, the contracting States may agree to create in favour of individuals rights enforceable directly not only before national but also before international tribunals. T o the extent to which the Charter of the United Nations established the legal obligation of its members to respect human rights and fundamental freedoms (though there are See below, p. 154. I Dallas Reports I I I . See, e.g., Article 25 of the Constitution of the Federal Republic of Germany of 1949. Series B, no. 15, p. 17. In the Advisory Opinion, given in 1950, on the International Status of South- West Africa, the International Court ofJustice assumed, without elaborating the point, that as the result of certain resolutions adopted in 1923 by the Council of the League of Nations in the matter of petitions from the inhabitants of mandated territories, these inhabitants acquired a corresponding right-a right under international law -and that right was subsequently maintained by Article 80 of the Charter of the United Nations: 1.C.j. Reports 1950, p. 133.

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many who deny the provisions in question the character of a legal obligation), it conferred upon individuals a corresponding right not dependent for its international validity upon national legislation, and even though unaccompanied by effective provisions for its enforcement. To that extent the Charter constituted the individual a subject of international law. Similarly, though more indirectly, this is also the effect, in one important respect, of the Agreement of 8 August 1945 between the four Principal Powers establishing an International Military Tribunal for the Punishment of the Major War Criminals. That Agreement provided, inter alia, for the punishment of crimes against-humanity. These were acts deemed to be violative of the sanctity of human personality to such a degree as to make it irrelevant whether or not they were committed in obedience to the law of the State. The inclusion of crimes against humanity in an international instrument reflected the acknowledgement of fundamental human rights of the individual recognized by international law and grounded in considerations superior to the law of the State. To that extent, again, the instrument in question recognized the individual as a subject of a fundamental international right.l 51. The procedural capacity of individuals in the international sphere The significance of the status of individuals as direct beneficiaries of rights conferred by treaty or customary international law-and, in consequence thereof, as subjects of international law-has been somewhat obscured by the fact that, in the present state of the law, their procedural capacity is severely limited. I n particular, apart from exceptional cases they have no right to appear as parties before international tribunals. Article 34 of the Statute of the International Court, the drafting of which was influenced by the predominant view of the exclusiveness of States as subjects of international law, lays down expressly that 'Only States may be parties in cases before the CourtY.2Various treaties providing for the settlement of claims arising out of injuries to individuals clearly provide that the claims shall be presented by Governments; that agents and counsel shall be appointed by government^;^ and that 1 See Lauterpacht, Zntrmatwnal L a w and Human Rights (1950)~ pp. 35-8, and Schwelb in B.Y.23 (1946), 17&226. See Oppenheim, 11, 54. And see, as to the position of individuals in connection with the advisory jurisdiction of the Court, Gross in 4.3.52 (rg58), 16-40. 8 See, e.g., the provisions of the Treaty of 8 September 1923 between the United States of America and Mexico, setting up a General Claims Commission. For the text of the Convention see Feller, The Mexican C l a i m Commission, 1923-1934 (1935), p. 321. And see ibid. pp. 83-90, for an account of the position of the individual claimants before the Commission.

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the latter shall retain decisive control over the claim and its prosec~tion.~ However, although this is, in general, the existing legal position, some qualifying considerations must be kept in mind. I n the first instance, a person or organization may be a subject of international law-i.e. directly endowed by international law with rights and charged with duties-without at the same time enjoying full procedural capacity by way of being able to claim before international tribunals and agencies any rights thus granted. Thus if the Charter of the United Nations were to impose unequivocally upon its Members the legal obligation to respect human rights and fundamental freedoms,$ and if the faculty to invoke these obligations were confined to the United Nations as such or its Member States, without conferring upon the individual an independent status before the organs of the United Nations for that purpose, the individual could still properly be considered a subject of international law in that sphere. I n the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, provision was made not only for securing human rights as there defined but also for the implementation of those provisions by the action both of the signatory States and, as soon as a requisite number of States have agreed thereto, by private individuals themselves. The resulting rights are vested in the individual inhabitants of the States concerned, independently of whether they have been made part of the law of the signatory States. Individuals are subjects of the rights in question by virtue of the provisions of the Convention even before their right to petition the Commission has been recognized. There are treaties which contain clauses providing For an emphatic instance of the affirmation of the full control of the State over 2: F. Assets Realization Corporaclaims adjudicated before an international tribunal see tion et Al. v. Hull, Secretary of State, et Al. (Annual Digest, lo (1941-2), Case no. I 34). See, however, for some qualifications of this rule American-Mexican Claim Bureau v. Morgenthau (ibid. g (1938-40), Case no. 106);Adminirtratiue Debion No. I in the Tripartite Claims Commission, 1927 (ibid. 4 (1gr7-8), Case no. 172); William A. Parker case, decided by the Mexican-United States General Claims Commission (ibid. 3 (1925-6), Case no. 178) and, by the same Commission, the North American Dredging Company case (ibid. Case no. 179). On the other hand, as laying down the principle that in concluding treaties the Crown d o e not act as trustee of the subject and that therefore the latter has no legal right to any compensation provided for in a treaty, see Ciuilian War Claimants' Association Ltd. v. The King [ ~ g p A.C. ] 14; 46 T.L.R. 581; 47 T.L.R. 102; Administrator of German Property v. Knoop [1g33] Ch. 439; Gschwind v. Swiss Confeederation, decided by the Swiss Federal Court in 1932 (Annual Digest,6 ( I93 I-2), Case no. I 20) ; Receiver in Bankruptcy of the N. V. ' <eilschip Nest' v. The State of the Netherlands, decided by the Hague Court of Appeal on 14January 1937 (ibid. 8 (1935-7), Case no. I 17). And see B.2: 13 (1g32), 163, 164. As stated above, p. 142, it is controversial whether the provisions of the Charter in the matter amount to a clear legal obligation on the part of the Members of the United Nations.

'' Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beamsfrom Poland, Rcport of thc Appcllatc Body, WTiDS 122lABIl7, 12 March 2001, $$62-78.

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with parties or third-parties to the dispute [that is, $3(c), (g)]. lf jurisprudence advanced in this direction, the dispute settlement mechanism could soon be contaminated by political issues that did not belong to the WTO, much less to its dispute settlement mechani~m."~" The Appellate Body5 consideration of the amicus brief: Grant of leave does not imply that the Appellate Body will address, in its Report, the legal arguments made in such a brief ($5). Thus the parties remain in a better position because the report almost invariably addresses all their legal arguments. Restriction of the amicus brief to legal arguments. It is consistent with the Appellate Body's function of determining appeals on issues of law only that amicus briefs are "strictly limited to legal arguments" (§7(c)). Right ofparties to respond to amicus briefs. Consistent with practice in other international courts and tribunals, "parties and the third parties to this dispute will be given a full and adequate opportunity . . . to comment on and respond to any written brief". (§9) This procedure affords the parties some due process. But, as Uruguay, among other States, complained, "this was not possible within the short and mandatory time-limits which the Appellate Body had to meet in its The ad hoc procedure communicated to the DSB Chairman caused a controversy. So much so that, at the request of the Informal Group of Developing Countries, a special meeting of the WTO General was convened to discuss the procedure and the issue of "whether persons or organizations which were not Members of the WTO should have any input into dispute settlement cases." The discussions came at a time when the eight panel proceedings and three appellate proceedings had raised the issue of handling of amicus curiae b r i e f ~ . ~ ~ ~ Atouching f € e r on the issue at a DSB meeting,2s7 WTO Members discussed within the General Council the principles and systemic elements underlying the issue of amicus particupation in light of the Asbestos ad hoc procedure in detail at the General Council extraordinarymeeting on 22 November 2000.258 The record of discussions at the General Council constitutes a rich source of States' views about amicus participation in WTO proceedings. Later, in Part 111 (General Conclusions), this paper will refer to statements by specific States made at this meeting. For present purposes it is sufficient to set out little more than the Chairman's summing up: 114. Second, almost all delegations had made comments on the question of whether the Appellate Body or pancls should rcccivc or solicit amicus bricfs. Thcrc was a broad agrccmcnt that thc rights and obligations under the DSU belonged to WTO Members. It had been repeatedly stated that the WTO was a

253

WTlGClMl60, cited at note 2 11, $46.

254

Ibid., $7. See also $27 (Hong Kong, China), and $100 (Chile).

2's The General Council is the WTO's highest legislative and policy authority in the intervals between Ministerial Conferences and, under Article IX.2 of the Agreement Establishing the WTO, has "the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements." 2s6 Dispute Settlement Body, Minutes of Meeting Held on 17 November 2000, WTlDSBlMl92, 15 January2001, $127. 257 Ibid., pp. 24-26. 258 WT/GC/M/60, cited at note 2 1 1 .

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Member-driven organization. Therefore, most delegations had concluded that since there was no specific provision regarding amicus briefs such briefs should not be accepted. Some delegations were of the vicw that amicus briefs could be used in some cases and there was at lcast one delegation who believed that there was both a legal and a substantive reason to use amicus briefs. There was no agreement on this point. 115. Third, many Members had made reference to the shrimp case and the decision to interpret Articlc

13 o f the DSU in such a way so as to accept am;cus bhcfs. Thc majority o f delegations had statcd that they did not agree with that decision which served as a basis for subsequent decisions on amicus briefs by panels and the Appellate Body. At the same time, at lcast one delegation had stated that there was nothing wrong with that kind of procedure. 116. Fourth, there was the question of whethcr the decision of the Appellate Body in the present case, was of a procedural or a substantive nature. The majority of delegations were of the view that it was a substantive decision, while some delegations believed that this was a procedural one. 117. Fifth, many Members had also made comments on the Secretariat's action to put on the WTO website the communication from the Appellate Body to the Chairman of the DSB. It had bccn statcd that thc Secretariat's action amounted to an invitation, although he was not sure whether it had been meant to bc that in the first place. The point had also been made that there was an inherent discrimination in as much as the communication from the Secretariat had gone out only to those NGOs who subscribed to the WTO system. 118. Finally, many Members had made the point that the issue under discussion was not a transparency issue, but rather a legal issue and concerned the question ofwho should participate in the legal system. 119. He believed that most of the points that he had just outlined had been raised by practically all delegations who had spoken at the present meeting. On this basis, he wished to draw some conclusions. First, he believed that there had been a large sentiment expressed by almost all delegations that there was a need to consider whether it would be possible to put in place clear rules for amicus briefs. Thcrc might not be absolute unanimity on that point, but the majority of delegations had stated that the Appellate Body and the system would benefit from clearer rules. Further consultations would be required on both the substantive content of the rules and what procedure should be used for putting them in place. 120. Sccond, in light of the views expressed and in the absence of clear rules, he bclicvcd that the Appellate Body should exmcise extreme caution in future cases until Members had considered what rules were needed.2sY

Some four months after the General Council's extraordinary meeting to discuss the Asbestos ad hoc procedure, the Appellate Body delivered its report in The Appellate Body received 17 requests to participate pursuant to the ad hoc procedure, all of which were rejected. Six of these requests were rejected because they were received late. The remaining 11 were rejected because of a "failure to comply sufficiently with all the requirements set forth in paragraph 3 of the Additional Proced~re".~~' As Stem has suggested, this was barely an explanation; although the door to amici seemed wide open, this attitude indicates that the impression was mistaken.262Subsequent dismissals of amicus briefs, simply on the basis that the Appellate Body "did not find it necessary" to take them into account, indicate that Stem's assessment remains accurate.263 The timely requests originated from persons and organizations primarily from Western countries. But requests were also made by NGOs from less developed countries such as India. And prior to adoption of the ad hoc procedure WTlGCIMI60, cited atnote 211, §§114-120. WTDS 135/AB/R, cited at note 244. 2b' Ibid., $56. Stem, cited at note 216, at p. 271. Zb3 See, for example, European Communities -Export Subsidies on Sugar, Report of the Appellate Body, WTDS265IABIR, WTIDS266lAB/R, WTIDS283IABIR, 28 April 2005,§9. 259

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the Appellate Body had received requests to accept amicus briefs from NGOs, mainly industry associations, that were predominantly from developing countries, for example, Thailand, Sri Lanka, India, Colombia and In 2002 the Appellate Body faced a novel issue in Sardines: could a WTO member State participate in proceedings as amicus curiae?265The Body decided that such a State could do so. But its rights would be those of other amici curiae and different from those it would have had had it participated pursuant to the DSU as a third-party participant, that is, pursuant to Articles 10.2 and 17.4 of the DSU.266The Appellate Body did not believe that this explicit right of participation accorded to WTO members justified treating them differently from non-WTO Members in the exercise of its authority to receive amicus curiae briefs. In the end the Appellate Body did take into account the amicus brief submitted by Morocco, but only to the extent of certain legal submissions.267 With some prescience, at the November 2000 WTO General Council meeting, Egypt predicted that "while the [Appellate Body] pledged that the [ad hoc] decision was for the purpose of the asbestos appeal only, it introduced an additional procedure which, if allowed to apply, would certainly create pressure for future cases and might Indeed the influence of the WTO's ad hoc in fact set a precedent or jurispr~dence."26~ procedure and related jurisprudence has spread beyond the WTO, as we will see as we turn to examine amicus curiae participation in arbitral proceedings conducted by NAFTA and ICSID tribunals.

2M The Appellate Body described these submissions as follows: "The Appellate Body received 13 written submissions from non-governmental organizations relating to this appeal that were not submitted in accordance with the Additional Procedure. Several of these were received while we were considering the possible adoption of an additionalprocedure. After the adoption of the Additional Procedure, each of these 13 submissions was returned to its sender, along with a letter informing the sender of the procedure adopted by the Division hearing this appeal and a copy of the Additional Procedure. Only one of these associations, the Korea Asbestos Association, subsequently submitted a request for leave in accordance with the Additional Procedure." ($53). The Appellate Body lists the names and countries of each entity that submitted an amicus brief or request at notes 30 to 33 of its report. 265 WTIDS23 IIABR, cited at note 235. 266 DSU, Art. 10.2 provides: "Any Member having a substantial interest in a matter before a panel and having notified its interest to the DSB (referred to in this Understanding as a "third party") shall have an opportunityto be heard by the panel and to make written submissionsto the panel. These submissionsshall also be given to the patties to the dispute and shall be reflected in the panel report." DSU, Art. 17.4 provides: "Only parties to the dispute, not third parties, may appeal a panel report. Third parties which have notified the DSB of a substantialinterest in the matter pursuant to paragraph 2 of Article 10 may make written submissions to, and be given an opportunity to be heard by, the Appellate Body." WT/DS231/AB/R, cited at note 235, $170. WTIGCM60, cited at note 2 11, $20. See also Hong Kong, China, $26.


6. Amici Curiae and arbitration: NAFTA and ICSID tribunals 6.1 Introduction

This section discusses the role of the amicus curiae in arbitrations conducted by t i bunals under the North American Free Trade Agreement (NAFTA) and through the International Centre for Settlement of Investment Disputes (ICSID). Under Chapter 11 of NAFTA, to which Canada, Mexico and the United States are Parties, arbitral tribunals resolve investor-state disputes. Arbitrations are initiated under either the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL Rules)269or the (Additional Facility) Rules of the International Centre for Settlement of Investment Disputes (ICSID Rules). Even though NAFTA tribunals' jurisdiction is limited, their decisions have wider influence, for example on decisions of ICSLD tribunals, which also determine investor-State disputes but in relation to a far greater number of States than NAFTA.270 6.2 NAFTA In 2001 two NAFTA tribunals issued important decisions about amicus curiae participation in proceedings under the UNCITRAL rules: Methanex C o p v. United and UPS (United Parcel Service ofAmerica Inc.) v. Government of Canada.272 St~tes,2~' Not only did the Tribunals decide that they had power to permit such participation, they set out the factors relevant to exercising such discretion, outlined limits to such participation and also commented on the juridical nature of the amicus in NAFTA proceedings. Following these decisions, in 2003, the Free Trade Commission ("FTC") issued a statement on "non-disputing party participation" in Chapter 11 NAFTA proc e e d i n g ~The . ~ ~statement ~ provides guidance in light of these two decisions. On the basis of these NAFTA materials, in May 2005 an ICSID tribunal decided for the first time that it had power to accept and consider amicus curiae submissions by nonparties to the case.274 269 United Nations Commission on International Trade Law, Arbitration Rules 1976, adopted by the UN General Assembly on 15 December 1976, UN Doc. No. ARES13 1198. 270 AS of 15 December 2002,136 countries had ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. 27' Methanex Corp. v. United States, Decision on Petitionsfrom Third Persons to Intervene us 'Amici Curiae', 15 January 2001 ("Methanex"). NAFTA documents referred to in this section arc available at http:/lwww.state.gov/s/1/c3439.htrn. The Tribunal members were Veeder, Rowley, and Christopher. Following this decision the tribunal made anumber ofdecisions relating to amicus participation. These decisions and rclatcd documents arc not discusscd for rcasons of spacc. Scc furthcr: Stcrn, "L'cntrk dc la sociCtC civile dans l'arbitrage cntre Etat et investisseur", Revue de I 'arbitrage,2002, pp. 329-345; Bjorklund, "Thc Participation of Amicus Curiae in NAFTA Chapter Eleven Cases", 22 March 2002, available at http://www.dfait-maeci.gc.ca~tna-nacldocuments/participate-c.pdf. 272 UPS (United Parcel Service ofAmerica Inc.) v. Government of Canada, Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae, 17 October 2001 ("UPS')). 273 Statement of the Free Trade Commission on non-disputing party participation, 7 October 2003. 274 Aguas Argentinas S.A and Others v. Argentina, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, ICSID casc No. ARB103119, 19 May 2005 ("Aguas").

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Before considering the FTC's statement, this paper considers in detail the tribunals' decisions in Methanex and UPS. Methanex Following petitions from four North American-based NGOs, whose credentials the Tribunal described as "impressive", on 15 January 2001 a NAFTA tribunal issued a Decision on Petitions from Third Persons to Intervene as 'Amici Curiae'.275The participation sought by all the NGOs included the opportunity to review all parties' written pleadings, to attend hearings and to make written and oral submissions.276It was the first time that amici curiae had ever participated in arbitral proceedings under the UNCITRAL Arbitration The Tribunal found that nothing in Chapter 11 of NAFTA or the UNCITRAL Rules expressly permitted, or prohibited, participation of amici curiae in NAFTA proceedi n g ~In. deciding ~ ~ ~ that it had discretion to permit amicus curiae participation in the proceedings before it, the Tribunal relied on its power under Article 1S(1) of the UNCITRAL Rules, which provides: Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate,provided that the parties are treated with equality and that at any stage of the proceedings each patty is given a full opportunity of presenting his case.

The Tribunal referred to the Iran-US Tribunal notes on Article 15(1) of the UNCITRAL Rules and WTO practice, and concluded: For present purposes, the authoritative guide to the exercise of the Iran-US Claim Tribunal's discretion under Article 15(1) and this award demonstrate that the receipt of written submissions from a non-third person does not necessarily offend the philosophy of international arbitration involving States and nonState par tie^."^

The tribunal recognized that amici curiae were not, and could not be, parties to the proceedings and that it had no power to grant amici the same substantive right, status or privileges of disputing parties.280The amicus was not permitted to adduce the evidence of any factual or expert witness. As in WTO proceedings, the Tribunal recognized that a party could adopt a third party's submissions as part of its own and in this case the other party would be obliged to respond to the submissions.281 The Tribunal distinguished amici from experts in the context of NAFTA proceedings: 275 Methanex, cited note 271, $48. The NGOs were: the International Institute for Sustainable Development (IISD); the Communities for a Better Environment (CBE); the Blue Water Network of the Earth Island Institute (EII); and the Center for International Environmental Law. The latter three jointly petitioned the Tribunal. '76 Methanex, cited note 271, 57. 277 Methanex, cited note 271, $13. 27R Methanex, cited note 27 1, $24. 279 Methanex, cited note 271, $32. 280 Methanex, cited note 271, @27,30,33. Methanex, cited note 271, 836.


Amici are not experts; such persons are advocates (in the non-pejorative sense) and not 'independent' in the sense that they advance a particular case to a trib~nal.'~'

The Tribunal held that it had power to accept written amicus submissions. (Relying on this finding, later in the proceedings, the Tribunal permitted amicus participation in the f o r m o f w r i t t e n briefs f r o m t w o N G O S . ) ~ I t ~rejected ~ t h e petitioners' r e q u e s t t o a t t e n d

oral hearings because, under Article 25(4) of the UNCITRAL Rules, hearings were in camera unless both disputing parties consented and one party had not. The Tribunal also held that it had no power to accede to the third parties' request for access to documents generated within the arbitration. This was a matter for the parties rather than the In setting out the factors relevant to exercise of its discretion to permit amicus curiae participation in the proceedings, the Tribunal referred to public interest in the particular proceedings and public interest in transparency of NAFTA Chapter 11 proceedIn reaching this part of its decision the Tribunal maintained: ings generally.285 This Tribunal can set no legal precedent in general or at all. It has no power to determine for other arbitration tribunals how to interpretArticle 15(1); and in a later arbitration, there may be other circumstances leading that tribunal to exercise its discretion differently. For each arbitration, the decision must bc made by its tribunal in the particular circumstances of that arbitration only.2xb

This statement rather understates the significance of the decision insofar as it determines that a NAFTA tribunal has power under Article 15 of the UNCITRAL Rules to permit amici curiae to participate in NAFTA proceedings. The later decision of another NAFTA tribunal in UPS reinforces this observation, and it is to this case that we turn now. UPS On 17 October 2001, about 10 months after the Methanex decision relating to amici curiae was delivered, another NAFTA tribunal issued its Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae.287 UPS, a US parcel delivery service provider, had submitted claims against Canada that the state-entity Canada Post engaged in anti-competitive practices. A Canadian employees' union, the Canadian Union of Postal Workers (the Union), and a Canadian public interest group, the Council of Canadians (the Council), petitioned the Tribunal, requesting standing as parties the proceedings, or, should that be denied, the right to intervene as amicus curiae but with the full right to present and test any evidence adduced in the proceedings. More specifically, the Union and the Council requested disclosure of documents generated in the arbitration and the right to make submissions 2"

Methanex, cited note 271, 538. See also US submissions about the distinction at 520.

'" See Methanex Corp. v. United States, Order on Amicus,6 April 2004. 2a Methanex, cited note 271, §§42,47.

Methanex, cited note 271, $949, 50. Methanex, cited note 27 1, $5 1. 287 The members of the Tribunal were: Justice Kenneth Keith (Chairman), Dean Ronald A Cass; and L. Yves Forticr CC, QC. 285

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about the place of arbitration, the Tribunal's jurisdiction and the arbitrability of the matters raised by UPS. The disputing parties opposed intervention by the Union and the Council. The Tribunal rejected the Union and Council's application to become parties to the arbitration, stating that Article 1S(1) of the UNCITRAL Rules did not grant it that power. In doing so it distinguished between an amicus curiae and a party: As a procedural provision . . . [Article 15(1)1cannot grant the Tribunal any power to add further disputing parties to the arbitration, nor to accord to persons who are non-parties the substantive status, rights or privileges of a Disputing Party. . . . The Tribunal is required to decide a substantive dispute between the Claimant and the Respondent. The Tribunalhas no mandate to decide any other substantive dispute or any dispute determining the legal rights of third persons. The legal boundaries of the arbitration are set by this essential legal fact. It IS thus selfevident that if the Tribunal cannot directly, without consent, add another person as a party to this dispute or treat a third person as a party to the arbitration or NAFTA, it is equally precluded from achieving this result indirectly by exercising a power over the conduct of the arbitration.Accordingly, in the Tribunal's view, the power under Article 15(1) must be confined to procedural matters. Treating non-parties as Disputing Parties or asNAFTAParties cannot be matters of mere procedure; and such matters cannot fall within Article 15(1) of the UNCITRAL Arbitration Rules.288

The Tribunal followed the decision in Methanex to the effect that Article 15(1) of the UNCITRAL Rules, read in context, conferred power on it to permit amici curiae participation in proceedingsbefore it. It further underlined the differences between an amicus and a party, pointing out in particular that amicus participation "is a matter of [the Tribunal's] power rather than of third party right7'.It also stated that "The rights of the disputing Parties are not altered (although in exercise of their procedural rights they will have the rights to respond to any submission) and the legal nature of the arbitration remains unchanged."289 The Tribunal also set out procedural limits on amici participation that it considered desirable in view of the "requirement of equality and the parties' right to present their cases" under Article 1S(1): The requirement of equality and the parties' right to present their cases do limit the power of the Tribunal to conduct the arbitration in such manner as it considers appropriate. That power is to be used not only to protect those rights of the parties, but also to investigate and determine the matter subject to arbitration in a just, efficient and expeditious manner. The power of the Tribunal to permit amicus submissions is not to be used in a way which is unduly burdensome for the parties or which unnecessarily complicates thc Tribunal proccss. Thc Tribunal cnvisagcs that it will placc limits on thc submissions to bc madc in writing in terms for instance of the length. The third parties would not have the opportunityto call witnesses (given the effect of article 25(4)) with the result that the disputingparties would not face the need to crossexamine them or call contradictory evidence. The parties would also be entitled to have the opportunity to respond to any such submission^.^"

The Tribunal also found relevant to its decision considerations of the public interest in NAFTA proceedings, in particular the proceedings before it, as well as the broader 288 289

290

UPS, cited note 272, 839. UPS, cited note 272, $61. UPS, cited note 272, $69.


"value of greater transparency for proceedings such as these. Such proceedings are not now, if they ever were, to be equated to the standard run of international commercial arbitration between private parties."2Y1 The Tribunal rejected the Union and Council's request to make submissions about

its jurisdiction and the place of arbitration, primarily on the basis that "the parties are

fully able to present the competing contentions and in significant degree have already

done NAFTA Free Trade Commission statement of 7 October 2003 Following the decisions in Methanex and UPS discussed above, the NAFTA Free Trade Commission produced a statement on 'non-disputing party participation' in NAFTA proceedings.293The Commission comprises cabinet-level representatives of the Parties, Canada, Mexico and the United States, or their designees and ordinarily makes decisions by consensus.294The statement was issued on 7 October 2003 and addresses spontaneous or uninvited submissions. The legal basis for accepting, in principle, such participation is set out in the statement: "no provision of [NAFTA] limits a tribunal's discretion to accept written submissions from a person or entity that is not a disputing party". Participation is limited to a "person of a Party" or a person "that has a significant presence in the territory of a Party", that is, a natural or legal person who is either a national of, or has a significantpresence in, Canada, Mexico or the United States. When exercising its discretion, the tribunal considers, among other things, the extent to which: (a) the non-disputing party submission would assist the Tribunal in the determination of a factual or legal issue related to the arbitrationby bringing a perspective, particular knowledge or insight that is different from that of the disputing parties; (b) the non-disputing party submission would address matters within the scope of the dispute; (c) the non-disputingparty has a significant interest in the arbitration; and (d) there is a public interest in the subject matter of the arbitration.

The tribunal has explicit discretion to permit participation and to address any written submission in the arbitration. Even though disputing parties have the right to respond in writing to amicus curiae submissions, the non-disputing parties have no right of reply. The NAFTA FTC statement is clearly influenced by the WTO ad hoc procedure for participation of amicus curiae adopted in the Asbestos case and discussed earlier. There is a similar two-step process: first persons must file a short (5 page maximum) application to for leave to submit; then if leave is granted, the amicus brief is submitted. The application for leave to submit similarly requires details about the prospective UPS, cited note 272, $70. UPS, cited note 272.87 1. 293 For further discussion of the FTC statement, see: Murphy, "Contemporary Practice of the United States NAFTA Commission Statement on Amicus Curiae Participation in Arbitration", American Journal of International Law, Vol. 98,2004, pp. 84 1-842. 294 NAFTA. Art. 2001. 29'

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participant's affiliation with the disputing parties and its source of funding for the submission. Clearly, NAFTA shares the WTO Appellate Body's concern to verify that the person will be more a friend of the court than a friend of a disputing party. Written submissions are similarly limited to 20 pages. The current procedure only envisages written submissions. This is because under UNCITRAL Rules hearings are in camera unless the disputing parties agree otherwise. To permit amicus participation in the hearing would require a change to UNCITRAL Rules or the parties' consent. As we shall see shortly, faced with this limitation in ICSID proceedings, the ICSID Secretariat is considering a change to the relevant ICSID mles. 6.3 ICSID In May 2005 an ICSID tribunal decided for the first time that, in principle, amici curiae could participate in ICSID tribunal proceedings under the ICSID Additional Facility Rules.295Five NGOs applied for leave to be present at the hearings; present legal arguments as amicus curiae, and have access to all of the documents in the case. As the Tribunal recognized, "[tlhe purpose in seeking access to the record is to enable a nonparty to act as amicus curiae in a meaningful way".296The claimant opposed the application but Argentina approved of it. The Tribunal denied the request to attend the hearings because, in the absence of one party's consent, ICSID Rule 32(2) prevented the Tribunal from allowing access.297 The Tribunal defined what it understood to be an amicus curiae as: "a friend of the court recognized in certain legal systems and more recently in a number of international proceedings. In such cases, a nonparty to the dispute, as 'a friend,' offers to provide the court or tribunal its special perspectives, arguments, or expertise on the dispute, usually in the form of a written amicus curiae brief or submission."298It considered that it was in a position similar to that of NAFTA tribunals: there was no provision of the ICSID Convention or relevant mles that expressly authorized or prohibited amicus participation. Article 44 of the ICSID Convention gave the Tribunal similar powers to that of a NAFTA tribunal under Article 15(1) of the UNCITRAL Rules.299Thus, if there were a "procedural question", the Tribunal could decide it. Adopting the NAFTA Tribunal's comments in Methanex about the difference between a party and an amicus curiae, the ICSID Tribunal "unanimously concludes that Article Aguas, cited note 274. The Tribunal consistedof Professors Salacuse,Kaufrnann-Kohler,andNikken. Agguas, cited note 274, $3 1 . The NGOs' petition is available at http://www.ciel.org/Tae/ Suez-ICSID_SFebOS.html. 297 Aguas, cited note 274, $94 7. ICSID Rule 32(2) provides: "The tribunal shall decide, with the consent of the parties, which other persons besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal may attend the hearings." 298 Aguas, cited notc 274, $8. 299 ICSID Convention,Art. 44 provides: "Any arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Arbitration Rules in cffect on the date on which the parties consented to arbitration. If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question." 295

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44 of the ICSID Convention grants it the power to admit amicus curiae submissions from suitable nonparties in appropriate cases."300 The Tribunal decided that, based on a review of amicus practices in other jurisdictions and forums. the conditions for amicus admission: should depend on three basic criteria: a) the appropriateness of the subject matter of the case; b) the suitability of a given nonparty to act as amicus curiae in that case, and c) the procedure by which the amicus submission is made and considered. The Tribunal believes that the judicious application of these criteria will enable it to balance the interests of concerned nondisputant parties to be heard and at the same time protect the substantive and procedural rights of thc disputants to a fair, orderly, and expeditious arbitral process.301

The Tribunal indicated that it was not sufficient that the dispute involved the legality of an action under international law and the international responsibility of a State, for these elements were present in all ICSID investment treaty arbitrations. There had to be something more for the public interest to justify amicus participation. In this case the tribunal identified the additional factor to be considered as follows: The factor that gives this case particular public interest is that the investment dispute centers around the water distribution and sewage systems of a large metropolitan area, the city of Buenos Aires and surrounding municipalities. Those systems provide basic public services to millions of people and as a result may raise a variety of complex public and international law questions, including human rights c~nsiderations.'~~

The Tribunal also saw that there was an interest in transparency: The acceptance of amicus submissions would have the additional desirable consequence of increasing the transparency of investor-slate arbitration. Public acceptance of thc legitimacy of international arbitral processes, particularly when they involve states and matters of public interest, is strengthened by increased openness and increased knowledge as to how these processes function. It is this imperative that has led to increased transparency in the arbitral processes of the World Trade Organization and the North American Free Trade Agreement. Through the participation of appropriate representatives of civil society in appropriate cases, the public will gain increased understanding of ICSlD processes.303

Considering the purpose of an amicus submission, the Tribunal considered that an amicus should demonstrate that it had sufficient expertise and was independent.304The ICSID tribunals' requirements for amicus participation draw on, and substantially reflect those in the FTC statement discussed above. The Tribunal granted the Aguas, cited note 274, $16. Aguas, citcd notc 274, 5 17. Thc Tribunal did not find it ncccssary to claboratc on critcria (h) and (c) at this stage of its proceedings. '02 Aguas, cited note 274, $19. 303 Aguas, cited note 274, 522. 3W Aguas, cited note 274,524: "The purpose of amicus submissions is to help the Tribunal anive at a correct decision by providing it with arguments, expertise, and perspectives that the parties may not have provided. The Tribunal will therefore only accept amicus submissions from persons who establish to the Tribunal's satisfaction that they have the expertise, experience, and independence to be of assistance in this casc." lo'

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petitioners an opportunity to apply for leave to file an amicus brief and deferred their decision about access to documents until an approved non-party applied for such access. Prior to the ICSID tribunal's decision in Aguas, the ICSID Secretariathad been considering possible changes to the ICSID Rules relating to access of nonparties to ICSID proceedings. The issue was first raised in a discussion paper issued in October 2004.305 Most recently, one week before the decision in Aguas, the Secretariat issued a working paper seeking further comments on proposed changes to the rules.306This working paper suggests that "it could be usehl to have hearings open to persons other than those directly involved in the proceeding." The suggested changes to Rule 32 of the ICSID Rules would mean that, to allow non-parties to attend or observe hearings, the tribunal would have to consult the parties but would not require their consent.'07 The working paper also suggests adding a paragraph to ICSID Rule 37 to "make clear that ICSID tribunals may accept and consider written submissions from a non-disputing person or a State, after consulting both parties as far as possible." Unsurprisingly,the criteria for accepting such submissions closely reflect the ICSID decision in Aguas: "The tribunal would have to be satisfied that any such submissions would assist the tribunal in the determination of a factual or legal issue within the scope of the dispute, that the non-disputing party has a significant interest in the dispute and that this would not disrupt the proceeding or unfairly burden either party."308

6.4 Concluding remarks Prior to 2001 amicus participation in international arbitration was unknown. Since then, influenced primarily by developments in the WTO, NAFTA and ICSID tribunals have permitted amicus participation in principle in investor-state disputes. NAFTA tribunals have also allowed amicus participation in practice. It is likely therefore that amicus participation will become more common in international arbitrations involving at least one State, where the public interest is clear and the issues are decided in accordance with a treaty and relevant principles of international law. There will be strong resistance to amicus participation in what one NAFTA tribunal described as the "standard run of international commercial arbitration between private parties",309 where friends of the court are likely to be seen more as "officious intermeddler^".^^^

30* ICSID Secretariat, Possible Improvements of the Framework for ICSID Arbitration, Discussion Paper, 22 October 2004,$6 13-1 5 , available at http:llwww.worldbank.orglicsidiimprove-arb.pdf. 3m See Suggested Changes to the ICSID Rules and Regulations, Working Paper of the TCSlD Secretariat, 12 May 2005,available at http://www.worldbank.org/icsid~052405-sgmanual.pdf. 307 Ibid., p. 10. "08 Ibid., p. 11. 3W UPS, cited note 272,$70. 310 Agum, cited note 274,$20.


I11 GENERAL CONCLUSIONS Although one may not be able to speak of it yet as a device consecrated by "international rules of procedure" the analysis in Part 11indicates that the amicus curiae is a

principle that finds expression in a number of internationaljurisdictions. There are cer-

tainly dangers in generalizing a concept. The well-known intemational lawyer, Sir Arthur Watts, has warned that procedural questions "can in practice only be pursued on a tribunal-by-tribunal ba~is."~" Even considering this warning, the amicus curiae before international courts and tribunals has a number of core features. This Part analyzes those core features, and their variations across international jurisdictions. After identifying those features, it shall examine the general policy issues of, and prospects for, amicus curiae participation in the work of international courts and tribunals.

1 Juridical nature of the amicus curiae before international jurisdictions The analysis in Part 11 indicates that in the context of international jurisdictions, the term amicus curiae refers primarily to a person or entity whom a court or tribunal may, in its discretion, permit to participate in legal proceedings in a capacity lesser than that of a party. One of the few generalizations that can be made about amici curiae before international jurisdictions is that they are never considered parties as a matter of law and have lesser procedural rights than parties. The WTO, NAFTAtribunals, ECHR and the ICTY have explicitly made a distinction between amici and parties. Only in some ICTY proceedings have amici been accorded such rights as to blur the practical distinction between amici and parties. Although some commentators and a NAFTA tribunal have distinguished between the amicus curiae on the one hand and experts and witnesses on the other, in practice their functions sometimes overlap. In Methanex the NAFTA Tribunal stated: "Amici are not experts; such persons are advocates (in the non-perjorative sense) and not 'independent' in the sense that they advance a particular case to a tribunal.'"12 This distinction is not made as easily in other international jurisdictions, where amici can perform a hnction similar to that of an expert.)13In appointing amici, internationaljurisdictions rarely, if ever, explicitly rely on their power to appoint third parties as experts (although the Inter-American Court of Human Rights, probably implicitly, does assume such a power). This could indicate that under most international dispute settlement frameworks there are differences between the two, but many of the differences remain to be articulated.

"' Watts, "Enhancing thc Effcctivcncss of Proccdurcs ofIntcmationa1 Disputc Scttlcmcnt", Ma* Planck Yearbook of United Nations Law, Vol. 5,2001, pp. 21-39 at p. 21. 312 Methanex, cited note 27 1, $38. Later, in UPS, another NAFTATribunal recognized that the functions of amici and experts could overlap. After referring to "the power of the Tribunal to seek the assistance of independent experts on specialised factual matters", the tribunal stated: "The contribution of an amicus might cover such ground, but is likely to cover quite distinct issues (especially of law) and also to approach those issues from a distinct position.": see UPS, cited note 272, $62. Sec text accompanying notes 323 to 324.

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1.1 When can an amicus curiae participate? (Criteria ratione materiae) What type of interest must a person or entity demonstrate to participate as amicus before an international court or tribunal? In order to "intervene" in ICJ cases under Article 62 of the ICJ Statute, a state must demonstrate that it has "an interest of a legal nature which may be affected by the decision in the case." On the whole, participation of amici in international courts or tribunals is conceived more in terms of the interest of the court or tribunal than that of the person or entity seeking to participate. Broadly stated, the court or tribunal's interest is that amicus participation should contribute to the proper administration of justice in the specific proceedings and, perhaps, more generally. This interest is stated in various ways: "in the interest of the proper administration of justice" (ECHR); "desirable for the proper determination of the case" (ICC; ICTY; ICTR; SCSL); "desirable in the interests of achieving a satisfactory settlement of the matter at issue" (WTO Appellate Body); and "the . . . submission would assist the Tribunal in the determination of a factual or legal issue related to the arbitrationby bringing a perspective, particular knowledge or insight that is different from that of the disputing parties" (NAFTA). Sometimes the relevant procedural rules do not explicitly proscribe judicial discretion. For example participation may be permitted where the judicial body "deems [it] appropriate" (WTO Panels); or the entity is considered "likely to be able to furnish information on the [relevant] question" (ICJ; ITLOS). But even in these cases, practice indicates that the proper administration of justice, at least in the proceedings at hand, is a factor in deciding whether to permit participation. While the interest of the court or tribunal is generally most important, the interest of the potential amicus in participation can be important, at least in practice. That interest is not necessarily of a juridical nature.314 And the nature of the interest sufficient to enable participation as amicus varies across jurisdictions and according to the nature of the proceedings. Before the ICJ and ITLOS, an intergovernmental organization's interest in contentious cases involving its constituent instrument's construction is so important that it may participate as of right as amicus in the case. The ECHR often permits persons with a clear interest in the domestic proceedings to which an ECHR application relates to participate as amicus on that basis. The ICJ has been much less accommodating, notably in advisory proceedings relating to UN Administrative Tribunal proceedings. On the other hand in the Palestinian Wall advisory proceedings, the ICJ considered relevant Palestine's interest as co-sponsor of the draft resolution requesting the advisory opinion. When the ICTY requests a State that its court defer to the Tribunal's competence, clearly that State's interest in being heard is a factor in permitting its participation as amicus. But in ICTY proceedings following failure to execute a warrant, it seems that the indictee's State's interest in being heard is

"' As Ascensio states, as to the type of interest necessary for an amicus curiae to participate, "la doctrine Bvoque seulement un 'inter&' sans plus de prbcision. I1 n'est mBme pas certain qu'il s'agisse d'un int6rBt juridique, si I'on admet que I'amicus curiae puisse exposer son opinion Bgalement sur des faits - ou alors on doit entendre I'intMt juridique de manikre extremement large comme incluant un i n & % abstrait au bon fonctionnement de la justice."Ascencio, cited at note 22, at p. 912.


insufficient. The WTO Appellate Body has asked applicants for leave to participate to "specify the nature of the interest that applicant has in this appeal". NAFTA Chapter 11 tribunals consider whether the applicant "has a significant interest in the arbitration". 1.2

Who can he an amicus curiae? (Criteria ratione personae)

The answer to the question who can participate as amicus curiae varies widely according to the jurisdiction. In some internationaljurisdictions, in principle, any State, organization (intergovernmental, international, or national) or person (natural or legal) may participate as amicus curiae. Such is the case before the ECHR, ICC, ICTY, ICTR and SCSL. In other jurisdictions participation is more restricted. For example, in practice, access to the 1CJ and ITLOS in the capacity of amicus curiae is limited to States and international organizations. In some jurisdictions persons or entities unable to participate in proceedings as parties may participate as amicus curiae, for example, NAFTA Chapter 11 tribunals (industry associations and NGOs); WTO Dispute Settlement Body (NGOs and individuals); and the ICC, ICTY and ICTR (States and international organizations). Persons or entities that can be parties to, or initiate, proceedings before a jurisdiction can often also participate as amici, for example: individuals, NGOs and States before the ECHR; States and intergovernmental organizations before the ICJ; and WTO Members before the WTO Appellate Body. Such participation is not always permitted because some entities can be parties to ITLOS Seabed Disputes Chamber cases but cannot participate in the Chamber's advisory proceedings. And amicus participation by entities that could participate in a different capacity can be controversial. Notably, a number of member States voiced disapproval of the WTO Appellate Body's 2002 decision in Sardines that a Member may not only participate as a "third participant" in appeal proceedings, but also as amicus curiae. Participation of a person or entity as amicus is likely to be more controversial in jurisdictions where there is no express provision for their participation. This unsurprising statement is supported by: States' ferocious reactions to decisions about inprinciple NGO participation as amicus curiae in WTO Appellate Body proceedings; by concern expressed in relation to non-State actor participation in NAFTA Chapter 11 tribunals; and by the ICJ's overall response to attempts by NGOs and individuals to participate as amici in its proceedings. By comparison, the ECHR and the international criminal tribunals have often, and relatively uncontroversially, used their broad express powers to permit amicus participati~n."~ Ascensio has also noted this difference in approach and characterized it as follows: jurisdictions concerned with interState disputes (for example, the 1CJ and the WTO) are more restrictive in their approach to amicus curiae than courts or tribunals largely open to private persons or

)I5 One example that does not support this proposition is the practice of the Inter-American Court of Human Rights, which has a relativelyrich amicus practice despite lack of express provision to appoint amici: see further Shelton, cited at note 2, at pp. 638440.

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at least for the defence of their rights (for example, ECHR and the international cnminal tribunals).316

1.3 The court or tribunal k discretion The international court or tribunal usually retains a broad discretionary power over all aspects of amicus participation. In the first place the international courts and tribunals discussed in this paper usually have discretion whether or not to permit amicus participation. There are exceptions in certain cases. Intergovernmentalorganizationsmay participate as of right in ICJ and lTLOS cases involving the construction of their constituent instruments. In the ECHR, a State has a right to act as amicus if it is a Contracting Party and the applicant is one of its nationals. And where a party to a dispute adopts a third person's submissions as its own, at least in WTO and NAFTA proceedings, the jurisdiction is obliged to accept them. If it does permit participation, an international court or tribunal has discretion over the form of that participation and the scope of the submissions, a matter that is discussed below.317 Once the amicus has made its submissions, at least some jurisdictions treat those submissions differently than parties' submissions, which must be considered. In WTO proceedings, neither panels nor the Appellate Body are obliged in law to give due consideration to amicus submissions, including in their reports. So too a NAFTA arbitral tribunal's grant of leave to file an amicus submission does not require it to address that submission at any point in the arbitration. Other international jurisdictions have not found it necessary to articulate their legal obligations in relation to amicus submissions after they have granted leave to persons to make them. It is conceivable that at least the ECHR and the international criminal tribunals would view their obligations differently. Ordinarily one would think that a grant of leave to a person to make a submission entails a legitimate expectation that the court would then at least consider in good faith whatever is submitted. ECHR practice supports this proposition in that it usually summarizes, however briefly, amicus submissions to it. And would the ICTY really consider that it had no legal duty to take into account submissions made in the Milos'eviC proceedings by amici appointed by it to ensure a fair trial? Consistent with international tribunals' general practice, after considering the submission it would be entirely in the Court's discretion what weight, if any, should be accorded to it. 1.4 Form and content of amicus curiaeparticipation

The form of amicus curiae participation in legal proceedings is circumscribed in two ways: (i) generally, by the particular court or tribunal's rules; and (ii) specifically, by any conditions upon which the court or tribunal permits the amicus to participate. This section discusses the following aspects of the form and content of amicus participation: "6

317

Ascencio, cited at note 22, at pp. 901 and 905. See text accompanying notes 318 to 322 below.

Non-State Actors and International Law THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AXD TRIBUNALS

321 277

whether written and oral submissions can be made; the length of written submissions; access by amici to the parties' submissions; whether amicus submissions cover legal and factual issues; and the right of the parties to respond to amicus submissions. An amicus curiae's participation extends at least to making written submissions to the court or tribunal. Sometimes the amicus can participate actively in oral proceedings but on the whole this is rare. Amici cannot ordinarily participate in NAFTA tribunal oral proceedings because UNCITRAL rules stipulate that the hearing is in camera unless both disputing parties consent. Amici cannot participate in WTO Appellate Body hearings318In practice the ECHR has rarely found it necessary to invite an amicus to take part in hearings. The ICTY has been relatively open to participation in oral proceedings by its amici, especially in the MiloSeviC proceedings. And States or international organizations participating in ICJ advisory proceedings have often taken part in the hearings. It is not common practice of international courts and tribunals to prescribe the maximum length of amicus briefs or requests for leave. For example, neither the ICJ, ITLOS, ECHR, ICC, ICTY nor ICTR prescribe page lengths. Most good lawyers recognize the persuasive force of brevity. Nonetheless, some important amicus briefs submitted to the ICTR (e.g., by NGOs in Akayesu) and the ECHR (e.g., by Liberty in I. v. UK) exceeded the page limits prescribed in the WTO ad hoc procedure. Perhaps reflecting the influence of US domestic practice, the WTO and NAFTA Chapter 11 tribunals have prescribed page limits. Access by amici to the parties' documents and submissions is often limited. In WTO and NAFTAtribunal proceedings, ordinarily the parties' submissions are confidential. In ICJ advisory proceedings, once a State or organization has been granted leave to make a written statement, it will receive a copy of other written statements filed in the proceedings. Otherwise the participants' written statements remain confidential until at least the beginning of the oral proceeding^.^" In international criminal proceedings it will depend largely on the stage of proceedings at which the request to make amicus submissions is made, to what extent documents and submissions are accessible. Normally the indictment and documents and information presented to the Court will be publicly available.320Documents filed in ECHR applications are generally accessible to the public (and thus also to applicants for amicus status) from the time they are deposited with the Registry.321 Amicus submissions usually address legal matters but in appropriate cases can extend to factual matters. In WTO Appellate Body proceedings, which only deal with appeals on issues of law, amicus briefs have been limited to issues of law. The rules of ECHR, ICTR, ICTY, SCSL and the ICC about amicus participation do not limit submissions to issues of law. Similarly, the rules of the ICJ and ITLOS do not limit to legal issues submissions by States and international organizations in the course of their 318 Compare Sardines, cited note 235,g 164, note 69 ("a Member which files an amicus curiae brief is not guaranteed that we will accept or consider the brief, and the Member will not be entitled to attend the oral hearing in any capacity.") ICJ Statute,Art. 66(4); ICJ Rules, Art. 106. 320 Compare ICTY Rules of Procedure and Evidence, Rules 52 and 53. "' ECHR Rulcs of Court, Rulc 33.


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advisory proceedings. Although such submissions will often relate mainly to legal issues, this is not always the case. In the Palestinian Wall advisory opinion it is clear that at least Israel would have been entitled to make, and the Court would have welcomed, factual submissions.322 International courts and tribunals routinely permit the parties to respond to any amicus submissions. Among the jurisdictions surveyed in this paper there are no exceptions, although some WTO member States have complained that the short mandatory deadlines for resolution of WTO disputes deprive the parties of a full and adequate opportunity to respond to amicus submissions. 1.5

Functions

Before international courts and tribunals, amici curiae have performed four broad functions: First, an amicus curiae can provide specialist legal expertise to the court or tribunal, in particular about matters outside the judges' core competence. This function is similar to that of an expert, although the expertise may be provided either as a "neuNotably, the international criminal tribunals have tral bystander" or as an advocate.323 appointed amici to provide expertise about general international law issues: ICTY (Tadid; Blas'kic?; and SCSL (Taylor).The WTO Appellate Body has permitted an NGO with special international environmental law expertise to participate (Shrimps/Turtles: Center for International Environmental Law). On several occasions the ECHR has appointed amici to provide legal expertise in areas that are within the core competence of its judges, that is human rights (Karner v.Austria: discrimination on the basis of sexual orientation). The ICTY and ICTR have also let amici make submissions about areas of law that were within the judges' core competence, for example: international humanitarian law (ICTR, Semanza); and credibility of a rape victim witness (ICTY, Furundiija). The use of amici to provide specialist legal expertise might perhaps contribute to less fragmentation of international For example, the Center for Justice and International Law performed this role in ECHR proceedings in Timurtay v. Turkey when it commented on the Inter-American Court of Human Rights' case-law on the issue of forced disappearances. Secondly, an amicus can provide factual information to the international court or tribunal. In doing so, its functions are akin to that of a witness. This fimction has been performed by amici in proceedings in the ICJ (e.g.,the Intemational Civil Aviation Organization in the Aerial Incident of 3 July 1988; the UN Secretary-General in Cumaraswamy);and before the ECHR (the OSCE in B l e Z v. Croatia). Compare Palestinian Wall,cited note 33,555. The Inter-American Court of Human Rights has no explicit power to appoint amici curiae but the legal basis of its extensive practice is probably Article 34(1) of the Court's Rules of Procedure: "The Court may. . . decide to hear as a witness, expert, or in any other capacity, and person whose testimony or statements seem likely to assist it carrying out its functions.":see Shelton, cited at note 2, at p. 638. 324 See, for example, Ascencio, cited at note 22, at 924. The UN Intemational Law Commission's programme of work includes an item about "Fragmentationof international law: difficulties arising from the diversification and expansion of international law". 322

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Thirdly, an amicus curiae can provide a measure of due process, or at least access, to persons or entities who cannot be parties to an international court or tribunal's proceedings but whose interests may be affected by the decision because of, for instance, their close involvement in municipal or administrative proceedings to which the international court or tribunal proceedings relate. Amici have fulfilled this function in, for example: ECHR proceedings (for example, Feldek v. Slovakia: plaintiff in municipal defamation proceedings against the applicant; von Hannover v. Germany: the publisher of photos against whom the applicant brought municipal proceedings); ICTY Rule 10 deferral proceedings; NAFTA Chapter 11 tribunals (UPS: Canadian Union of Postal Workers); WTO proceedings (Panel: Australia -Salmon: "Concerned Fishermen and . ~ ~ ~ICJ has been criticized for not Processors" from South A u ~ t r a l i a ) The permitting amici to fulfil this function, for example, in advisory proceedings relating to UN Administrative Tribunal decisions concerning UN staff. Fourthly, amici curiae can, to a certain extent, represent public interest considerations. NAFTA tribunal procedures contemplate intervention on such a basis. Persons and entities seeking to participate in WTO proceedings sometimes state that they could discharge this function. In some ECHR proceedings, members of civil society have performed this function (for example, in Pretty v. UK: Voluntary Euthanasia Society and the Catholic Bishops' Conference of England and Wales). The NGO coalition brief submitted to the ICTR in Akayesu manifested a public interest by acting as a check on the prosecutorial discretion about what charges are to be included in the indictment. States that intervene in ICJ advisory proceedings will often represent the public interest, especially democratic States with sophisticated mechanisms for consulting civil society. The extent to which NGOs represent the public interest is a matter of some debate. In general NGOs will represent what they deem to be in the public interest. As the survey of international jurisdictions' practice in Part I1 indicates, amici can perform other functions. A State's submissions as amicus curiae can provide evidence of opiniojuris, as did the United States' submission in the ICTY's Tadizproceedings. An amicus can explain the scope of the UN Secretary-General's waiver of a former UN official's privileges and immunities to give evidence before a tribunal, as was the case in the ICTR proceedings in Akayesu. We have considered the amicus curiae's functions in different international jurisdictions. A closely related question is how those functions ought to be discharged: should an amicus be impartial, neutral or independent? To some extent the answer to this question depends on the jurisdiction and the fimctions being discharged. Generally speaking, as in municipal jurisdictions such as the United States, amici curiae may legitimately perform an advocacy function; the traditional concept of amici as neutral bystanders has evolved.326 To this extent, ordinarily, amici are not expected to be completely neutral. When the ECHR appoints as amicus a person with a clear interest in the domestic proceedings to which an application relates, it must expect that 325 Ausiralia Measures Affecting Importation of S a l m o n Recourse to Article 21.5 by Canada, Report of the Panel, WTO Doc. No. W T D S l IIRW, 18 February 2000,§7.8. '26 Chinkin and Mackenzie explain: "The traditional concept of amicus curiae is generally described as a neutral 'bystander' who, without as direct interest in the litigation, on his or her own initiative brings to the attention of the court matters of fact or law within his or her knowledge. . . . [In this case] the primary

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the amicus will make submissions about his or her own interests. And when a coalition of NGOs urged the Prosecutor to amend the indictment in the ICTR Akayesu proceedings to include rape and sexual violence charges, they did so more as advocates than as neutral bystanders. Also, in WTO and NAFTA proceedings, there are indications that amici may act, and have acted, as advocates. While amici may sometimes appear as advocates it seems that they must still conduct themselves in a manner consistent with the trust reposed in them as "friends of the court". In the course of deciding in the MilofeviC proceedings that one amicus was no friend of theirs, the ICTY indicated that an amicus had to "act fairly in the performance of his duties [and] discharge his duties . . .with the required impartiality".327 Even though amici may make submissionsthat favour the position of one party over another, ordinarily the international court or tribunal will expect the amicus to be independent, that is, more a friend of the court than of a party. In WTO, NAFTAand ICSID proceedings it seems that, unless a party adopts a potential amicus k submissions, it is expected that the amicus be independent of the parties. So, an applicant for leave must disclose any relationship with, or assistance from, a party. And if it becomes clear that a WTO amicus has had access to a party's submissions in the course of preparing its own, it will be thereby disqualified. The ICTY also asked applicants for leave to make amicus submissions to identify and explain any contact or relationship with any party to the case.328 Ultimately, the answer to the question how impartial, neutral or independent an amicus ought to be depends on the functions it is discharging.An amicus who makes submissions to the ICJ about factual matters could be expected to be more impartial, neutral and independent than an amicus who is appointed by the ECHR because of his or her clear interest in the domestic proceedings to which the application relates.

2 Policy issues

Amicus curiae participation in international courts and tribunals raises a number of policy issues. Does it promote the peaceful settlement of international disputes?How does it fit with the notion that the parties' consent is the cornerstone of third-party settlement of international disputes? Is the doctrine ofjura novit curia outmoded? And does the amicus curiae contribute to the legitimacy, accountability and transparency of international jurisdictions? Let us consider these questions in turn.

role ofthe amicus is to assist the court. But over time a more advocacy-oriented amicus function has evolved whereby an organization or group make submissions to the court either in support of one of the parties to the dispute, in its own interest, or to ensure a wide ventilation of views in what the amicus deems to be the public interest." Chinkin and Mackenzie, cited at note 8, p. 136. 327 See text accompanyingnote 200. 328 Information Concerning the Submission ofAmicus Curiae Briefs, ITl122, 22 March 1997.


2.1 Does the amicus promote peaceful settlement of international disputes? First, does amicus participation promote the peaceful settlement of international disputes? Some international jurisdictions' rules explicitly permit amicus participation.

The text of the relevant provision may appear in the Convention that established the court, which States have ratified. The ECHR is a case in point. Otherwise the text may appear in the court or tribunal's procedural rules. Sometimes States and other members of the international community have played a role in developing those rules. For example, many States were involved in the development of the ICC Rules of Evidence and Procedure. And, to a lesser extent, States were involved in the development of the ICTY and ICTR's rules following the tribunals' establishment by the Security Council. NAFTA procedures on amicus curiae have been agreed to by the Free Trade Commission which comprises cabinet-level representatives of the States Parties and acts on the basis of consensus. Where States have explicitly agreed to, or had input on, procedures for amicus curiae participation, it is reasonable to conclude that in their view such participation is useful for the relevant jurisdiction's purposes. At least in respect of NAFTA and ECHR proceedings one of the primary purposes is the peaceful settlement of disputes. That the ECHR has used amici relatively often, and for some time, despite a heavy caseload indicates that ECHR judges consider that, in practice, amici can perform a role in the peaceful settlement of disputes brought before them. The relative frequency with which ICTY and ICTR have appointed amici curiae indicates that their judges hold that, in practice, such participation can be "desirable for the proper determination of the case". There must be some doubt whether amicus participation contributes to the peaceful settlement of disputes where a jurisdiction's procedural rules do not explicitly permit participation and where States whose disputes are to be settled have voiced concern about amicus participation. This is precisely the case in relation to WTO dispute settlement, which is inter-State. On the whole, WTO Members disagree with the Appellate Body's decision that, in principle, it may receive amicus briefs notwithstanding the lack of an express provision in the DSU to that effect. Most Member States also did not agree with the decision that panels could accept uninvited briefs.329India has warned of the possible consequences for trade dispute settlement: "If governments knew that their non-governmental agencies had a further chance to influence the dispute settlement mechanism [by submitting amicus briefs], then . . . there could even be implications for compliance by govemments themselves."330 Similarly, it is doubtful that participation by NGOs and individuals as amici in ICJ and ITLOS proceedings would promote the settlement of the international disputes determined by them. First, such participation would be inconsistent with the longstanding practice relating to interpretation of Article 34 of the ICJ Statute. And that interpretation was one that found favour in ITLOS' rules, which were developed by a Preparatory Commission in which States' delegates participated.

329

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WT/GCB4/60, cited note 21 1, $81 14 115. Ibid., $38.

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2.2 Amicus participation and the consent of the parties to thirdparty dispute settlement A second question, related to the first, is how amicus participation fits in with the notion that the parties' consent is the cornerstone of third-party settlement of intemational disputes. It will be recalled that in Methanex a NAFTA tribunal accepted amicus briefs in an arbitration between a State and an investor even though one of the parties did not consent. In an article published in 2002, Stem suggested that this entailed "une nouvelle marginalisation du consentement des Parties, qui est a la base de la procedure d'arbit~age."~~' Following the Free Trade Commission's statement on "non-disputing party participation" in October 2003 it may well be that the parties' consent in similar circumstances would not be quite so marginalizedbecause the State Parties to NAFTA have agreed on guidelines for amici participation. The consent of the parties to amicus participation is not an issue where the Parties have agreed, or had input into, express provisions enabling that participation. So, it is suggested that the consent of the parties is not a live issue, for example, in relation to proceedings in the ECHR. 2.3 Juria novit curia and amicusparticipation A third policy issue is this: does increased amicus participation mean that the principle jura novit curia is outmoded? Jura novit curia means that a tribunal of international law is deemed to know what this law is.332The relevance of the doctrine varies. ICTY and SCSL practice indicates that international criminal tribunals welcome assistance in relation to general intemational law issues, for example, the status of the tribunal and its effect on the immunity of a State's head of state (SCSL: Taylor) or the legality of a tribunal's establishment as an organ of the Security Council (ICTY Tadiq. The ECHR, the ICTY and the ICTR have permitted amicus interventions on legal issues that are within the core competence of the judges. On the other hand in the WTO, some States expect the Appellate Body, which only considers legal issues, to reach its . ~ ~in~ the great majority of decisions without the assistance of non-State a r n i ~ iAnd proceedings before international courts and tribunals, amici do not participate. This indicates that, on the whole, the principle of jura novit curia is more than an expression ofjudicial ego and continues to play an important role in international dispute settlement.

Stem, "L'entree de la societe civile dans l'arbitrage entre Etat et investisseur", Revue de l'arbitrage, 2002, pp. 329-345, atp. 339. 332 See Cheng, GeneralPrinciples ofLaw as applied by International Courts and Tribunals,Cambridge, Grotius Publications, 1987, pp. 299-301. 333 See WTIGCM60, cited at note 21 1, $7 (Uruguay: "the members of the Appellate Body had the capacity, knowledge and experience necessary to take the legal decisions incumbent upon them without any outside help"). See also Egypt on behalf of the IGDC at $13; India at $36; Brazil at $45; and Pakistan at $65.

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2.4 Does amicus participation promote the legitimacy, accountability and transparency o f internationaljurisdictions? While the doctrine ofjura novit curia might militate against internationaljurisdictions'

use of amici, it is argued, particularly by would-be amici curiae, that their participation would contribute to the legitimacy, accountability and transparency of intemational jurisdictions. Is there merit to this argument? Perhaps amicus participation can contribute to the legitimacy of the jurisdiction concerned, at least where an amicus is appointed to provide a measure of due process, or access, to persons or entities who cannot be parties to a jurisdiction's proceedings but whose interests may be affected by the decision. Rosenne has suggested that "in the interests of the proper administration of international justice", the ICJ ought to take advantage of its existing powers to permit an individual directly concerned to give to the Court his or her own version of the facts and construction of the law. He suggested that, amongst other things, such a process would increase the ICJ's general standing and prestige.334It may be that wider participation in international jurisdictions' proceedings promotes their legitimacy, at least among those seeking to participate. If NGOs could better access WTO proceedings, would NGOs and anti-globalizationprotesters better accept the WTO as the arbiter of international trade disputes between WTO members? Perhaps; an article co-authored by a member of the WTO Secretariat suggests as much.335But would such NGO access reduce the legitimacy of the WTO in the eyes of its clientele, States? That may well be the case, considering that States can see amicus participation as impinging on their sovereignty, the exercise of which was carefully considered when they became members of WTO. Consider, for example, Uruguay's view: The WTO was an agreement of a contractual nature that was qualitatively different from other intemational agreements in the sense that the obligations that stemmed from this contract included the strict fulfilment of the decisions of the DSB to the extent of diminishing the decision-making capacity of Members. Insofar as Members were mainly States, the political effect of this situation was of no little

Further, some States have warned of a "risk that the [WTO] DSB would be excessively influenced by NGOs or by large companies who would offer legal services. This situation would be bad for the WTO but would be even more negative for developing countries whose financial and human resources were limited and whose electronic communication means were not as developed."337

334 Rosenne, cited note 7, p. 250. A youthful Brownlie made similar comments: "Even if the individual is not to be given procedural capacity a tribunal interested in doing justice effectively must have proper access to the views of individuals whose interests are directly affected whether or not they are parties as a matter of procedure." See Brownlie, cited note 26, p. 719. 335 Marceau and Stilwell, "Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating Bodies", Journal oflnternational Economic Law, Vol. 4,2001, pp. 155-187, at p. 178. 336 WTlGCIMl60, cited note 21 1, 55. "' WTlGCIMI60, citcd notc 21 1, $93 (Argentina). Scc also $38 (India).

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On occasion amicus participation has performed a role in ensuring accountability. The best example is probably the NGO coalition's brief submitted to the ICTR in Akayesu, which acted as a check on the prosecutorial discretion about what charges are to be included in indictments. In ICJ advisory proceedings wide participation by States, whose submissions are carehlly considered by the Court, may contribute some measure of accountability of the Court to its clientele. In Palestinian Wall, even Israel's limited presence arguably forced the ICJ to at least address a number of arguments in favour of Israel's position. Finally, does amicus participation contribute to the transparency of international jurisdictions' proceedings? As Stern rightly notes, the word "transparency" is a "mot quelque peu passe-partout, mais qui semble operer comme un sesame."338The NAFTA tribunal in Methanex considered that "the Chapter 11 arbitral process could benefit from being perceived as more open or transparent; or conversely be harmed if seen as unduly secretive. In this regard, the Tribunal's willingness to receive amicus submissions might support the process in general and this arbitration in particular."339In UPS, Canada supportedamicus participation in principle because of, among other things, "its appreciation of the contribution that transparency brings to building public confidence in the investor-state dispute settlement process."340In Aguas an ICSID tribunal similarly referred to interests in transparency and openness in support of its decision to permit amicus participation in principle.341 But is amicus participation really an issue related to interests in transparency? At least in the context of amicus participation in WTO proceedings, Canada, Turkey and Argentina thought not. Canada said: . . .one should not confuse the issues of transparency and participation in WTO dispute settlement. Canada fully supported greater external transparency in the WTO, including in dispute settlement. The amicus briefs were, however, not a transparency issue. It addressed the fundamental issue of participation in WTO dispute settlement proceedings, i.e., whether this participation should be limited to WTO Member governments or would non-governmental bodies also be entitled to participate. Canada was sympathetic to the interests of non-Members in the outcome of WTO disputes and recognized that civil society, including NGOs, followed closely the issues examined in disputes. At the same time, Canada also acknowledged the need for Members to examine the impact this might have on what was a government-to-government dispute settlement process?42

Amicus participation in international jurisdictions may be desirable for a number of reasons, but it is suggested that, in view of Canada's comments in the WTO, transparency is not one of them. Anyway, the amicus briefs sent to the Appellate Body in

Stem, cited note 33 1, p. 345. Methanex, cited note 271, 549. "O UPS, cited note 272, $5 1. Aguas, cited note 274, $22. WTIGCIMI60, cited at note 2 11, $$71,72.Turkey echoed Canada's comments: "To present this legal matter as an issue of external transparency would be misleading." (See $80.)Similarly,Argentina said amicus participation "was not related to transparency issues." (See $93.) On the other hand, the European Communities and Chile appeared to consider the issue of amicus participation as one of transparency: see $896 and 100, respectively. 339

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Asbestos hardly contributed to transparency because only a few potential amici posted their briefs on the Internet.343A far greater contribution to transparency would be US President Clinton's suggestion that "all hearings by the WTO be open to the public, and all briefs by the parties be made publicly a~ailable".~"

3 Prospects

Since the 1990s amici curiae have become more prominent before international jurisdictions. With the increased influence of non-State actors at the international this trend is likely to continue. In principle, amici curiae may participate to varying extents in the legal proceedings in all of the international jurisdictions discussed in this paper. Recent practice indicates that amici curiae have found, and will continue to perform, useful roles, particularly in international human rights and international criminal proceedings. Some international jurisdictions continue to be reluctant to let civil society participate, in particular the ICJ and ITLOS. But even the State-centred ICJ has indicated an increasing openness to NGO participation in advisory proceedings. And intergovernmental organizations are yet to take full advantage of opportunities for their participation in ICJ proceedings. The extent to which ITLOS amicus practice expands will probably depend on it finding a greater and more diverse caseload. While WTO dispute settlement proceedings are in principle open to amici, in practice NGOs and others are unlikely to gain access until they obtain better access to parties' submissions and convince the Appellate Body, panels, and most importantly, WTO Members, that their presence positively enhances dispute settlement. Prior to 2001 amicus participation in international arbitration was unknown. Since then NAFTA and ICSID tribunals have permitted amicus participation in investor-State dispute arbitrations. It is likely that amicus participation will become more common in international arbitrations involving at least one State and where a public interest element is clear. But there will be strong resistance to amicus participation in the "standard run of international commercial arbitration between private parties." In the view of this writer, the prospects for amicus participation could be enhanced in several ways. First, the juridical nature of an amicus curiae should be clarified or developed to recognize it as an entity that is neither party, witness nor expert, but has sufficient international legal personality to perform the functions required of it by the relevant international jurisdiction. Courts and tribunals will then have a clearer idea of what exactly they might invite to participate. Necessarily, the functions of an amicus in a particular jurisdiction would have to be elaborated. At a minimum, its function could be expressed broadly as one "to contribute to the proper determination of the case". See Institute o f International Economic Law, "Amicus Curiae in EC-Asbestos (DS 135): Applications requesting leave to file a written brief and the briefs of NGOs", available at http:Nwww.law.georgetown. eduliie~current~amicuslamicuscuriae5.html. WORLD TRADE WTIFIFTYIHISTI8,cited note 220, p. 4. 345 See, for example, We the Peoples: Civil society, the United Nations and Global Governance, Report of thc Pancl of Emincnt Pcrsons on Unitcd Nations Civil Socicty Rclations, A158181 7, 1 1 Junc 2004. -

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Secondly, the conditions for amicus participation could be developed or reviewed after wide consultation with representatives of all those interested: members of the court or tribunal; entities able to appear as parties before it; and potential amici; courts or tribunals anxious about (extending) amicus participation could consider pilot projects. In this way, the amicus curiae could become a closer friend of international courts and tribunals.

Law Enforcement

T H E ENVIRONMENTAL ACCOUNTABILITY O F T H E WORLD BANK T O NON-STATE ACTORS: I N S I G H T S

FROM T H E I N S P E C T I O N PANEL

The international legal order has seen over recent decades the proliferation of international organizations, and the expansion of their functions in, and impacts on, all spheres of international affairs, not always with beneficial results. In particular, the operations of international organizations with a financial and development mandate, such as the World Bank,' have been targeted as contributing to serious adverse environmental and social conditions in borrowing countries, mostly through the funding of large infrastructure projeck2 As international organizations acquire increasing responsibilities, there are demands for the establishment of mechanisms enabling those potentially affected by their acts or omissions to call the organizations to account. It has been observed that: There is no reason at all, as a matter of principle, why [international organizations] could or should not be held accountable for disadvantages and repercussions resulting from their acts or omissions and normally based upon the authority and power granted to them.? While the relevance of the attribution of accountability to international organizations is clear, the legal parameters of the concept * Lic. Iur. University of Geneva, LL.M. University of California, Berkeley School of Law (Boalt Hall), D.Phi1. Candidate University of Oxford, Faculty of Law. The author would like to express her gratitude to Catherine Redgwell for her invaluable advice and comments in the writing of this article. The author also owes hcr thanks to Professors James Crawford and Vaughan Lowe for their very helpful input in reviewing the piece. ' The term 'World Bank' or 'Bank' is used here to encompass the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA). 'World Bank Group' is usually used to cover, in addition, the International Finance Corporation (IFC), the Multilateral Investment Guarantee Agency (MIGA), and the International Centre for Settlement of Investment Disputes (ICSID). For lack of space, the present article is limited to the IBRD and IDA. The article focuses on environmental issues, leaving aside other policy areas such as human rights. The new lending commitments from the World Bank to client countries reached US$29 billion in Fiscal Year (FY)1999,with disbursements at US$24.2 billion. See World Bank, Annual Repmt (ITrggg), iii. The Bank has an extended membership, with 183 States parties. 3 International Law Association (ILA), Committee on Accountability of International o r t (1998).p. 14. Organisations, First w

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are still emerging, and n o consensus on its meaning exists.* Accountability is concerned with questions of compliance with procedures and rules relating to the exercise of public power. It is a broad and flexible concept. Questions of accountability may be raised through a wide range of measures by member states, other organizations, or non-state actors. The concept covers on the one hand the international responsibility of organizations. According to the dominant doctrine, the principles of state responsibility are applicable by analogy, albeit with some variation, to the responsibility of international organization for internationally wrongful acts.5 This topic remains so far largely uncharted, as the International Law Commission (ILC) has to date limited its work to the question of state responsibility. The attribution of responsibility encounters further obstacles, in particular when applied to the nexus between environmental harm and the activities of international financial organizations. These include the absence of international judicial or non-judicial fora in which claims against organizations can be brought (especially by non-state actors), the difficulties of identifying international environmental obligations binding upon the organization and of attributing wrongful acts or omissions to it, and the existence of procedural bars in domestic jurisdiction^.^ Consequently, there have been no cases in which an international or national court has decided on the merits of a claim brought by a third party alleging environmental harm arising from World Bank actions or omissions in the course of its lending operations. By contrast the concept of accountability extends to a variety of measures aimed at monitoring the conduct of organizations, particularly by means of information dissemination, public participation, submission of reports, and the undertaking of inspections.7 As these latter measures can become engaged before as well as after harm occurs, such a broad concept of accountability is of particular relevance in the environmental context. It caters well to the emphasis put on the prevention principle, i.e., the avoidance rather than the remediation of environmental damage. It also allows for non-state actors to play a role in representing environmental interests on the international level. 4 See Wellens, 'The Primary Model Rules of Accountability of International Organizations: The Principles and Rules Governing their Conduct or the Yardsticks for their Accountability' in Schermers and Biokker (eds.), Aolijeration of 10s: Legal Issues (2001) p. 433. 5 For studies on the attribution of responsibility to international organizations see Hirsch, The Responsibility of International Organizations toward Third Parties: Some Basic Principles (1995);P. Klein, La responsabiliti des organisations internationales (1998). See Reinisch, International Organizations befure National Courts (Cambridge Studies in International and Comparative Law, 2000). 7 The ILA similarly distinguishes 3 components of the accountability of international organizations, namely ( I ) forms of internal and external monitoring, (2) tortious liability for injurious consequences arising out of acts or omissions not involving a breach of international and/or institutional law; and (3) responsibility arising out of acts or omissions which do constitute such a breach. See ILA First Report on Accountability, above nn. 13, 17.

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The present article is concerned with this broader dimension of accountability.* It explores the question of the environmental accountability of international financial organizations to third party non-state actors by focusing on the World Bank Inspection Panel.9 The endorsement by the international community of sustainable development objectives has resulted in expanding the mandate of the Bank and other organizations, which are now expected to include consideration of environmental factors in their operations. It has also fostered calls for 'good governance' and greater legitimisation of international decision-making processes, including accountability.IOA significant trend in the development of the accountability of international financial organizations has been its extension to third party non-state actors, such as individuals, interest groups, nongovernmental organizations, and local communities affected o r concerned by the acts or omissions of the organizations, thereby belying the traditional notion that international organizations are exclusively accountable to their member states." As illustrative of these developments, the Inspection Panel provides a forum for non-state entities to hold the World Bank accountable for the way in which it conducts its project lending activities with regard to, inter alia, environmental conservation. The first part examines the applicable law governing the lending activities of' the Bank with respect to environmental conservation, which represents the necessary prerequisite for the mise e n Euvre of accountability by means of the Inspection Panel. The second is devoted to the Panel's procedural and substantive features. In order to illustrate these features, the third part provides a brief inquiry into the 1999 request on the China Western Poverty Reduction Project ( ' C h i n a Request'). The fourth part draws from the foregoing analyses insights into the contours of the Bank's environmental accountability. For this purpose, it assesses the Panel according to several criteria, viz., jurisdictional issues, procedural aspects, and consequences of the process. There follow some concluding observations on the characteristics of the mechanism. w e do not, therefore, address here the question whether the Bank's loan development activities could raise its responsibility when harm is caused to people or the environment. 9 The article does not deal with the internal hierarchical system of accountability within thc Bank, that is, accountability to its member States, which remains a primary conduit for supervision of the Bank's implementation of, and compliance with, rules and policies. ' O See Fox and Brown (eds.), The S t m g l e for Accountability: The World Bank, NGOs and Cffasroots Movements (1998). " See 'The Accountability of International Organizations to Non-State Actors' in Proceedings of the g m d Annual Meeting of the American Society of International Law (ASIL) (1998) p. 359. Analysing the development of NGO action in the international arena, and thc questions surrounding the legitimacy of non-state entities see Cullen and Morrow, 'International Civil Society in International Law: The Growth of NGO Participation' (2001) I Non-State Actors &'In11 L p. 7.


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The Evolution of the World Bank's Mandate i n Light of the Concept of Sustainable Development The World Bank's Articles of Agreement do not require environmental considerations to be taken into account in the organization's operations,12unlike the constituent instrument of the European Bank for Reconstruction and Development (EBRD).I3 Indeed they explicitly forbid the consideration in the lending process of non-economic factors. Drafted during the UN International Monetary and Financial Conference held at Bretton Woods in 194.4, the Bank's initial mandate of reconstructing war-torn Europe14gave way, in the path of decolonization, to the promotion of 'development'.'5 The notion of development was initially understood in purely economic terms. The Articles of Agreement stipulate that '[t] he Bank shall make arrangements to ensure that the proceeds of any loan are used . . . without regard to political or other non-economic influences or consideration^'.^^ This provision has been considered to mean that 'the only considerations which, under the Articles, are relevant to the decisions of the Bank and its officers are those which qualify as "economic considerations"."7 The Bank's mandate has adjusted to changes in the international law of development. The concept of sustainable development 'aptly expresse [s] ' the 'need to reconcile economic development with protection of the environment'.18 Sustainable development is prominently endorsed in the non-binding instruments that resulted from the 1992 UN Conference on Environment and Development (UNCED),I9 See IBRD, Articles of Agreement o j the International Rank Jur ~econstruclil~n and DwsyIment (IBRD Articles of Agreement) (22July 1944;2 UNTS (1947) p. 134,as amended 606 UNTS (1967)p. 294); IDA, Articles of Agreemat of the International Dmelopment Association (IDA Articles of Agreement) (16 February 1960; 439 UNTS (1962) p. 249). '3 See Agreement Establishing the European Bank for Reconstruction and Dwelopmenl (29 May 1990; rg Preamble and Art I1 ( I ) (vii). ILM (1990) p. 1077)~ '4 See IBRD Articles of Agreement, (above n. I Z ) , Art I (i). '5 See ibid., Art I(i) and (iii), and I11 (r)(a); IDA Articles of Agreement, above n. 12, Arts I and V(r)(a) and (b). l 6 IBRD Articles of Agreement, above n. 12, Art 111 (5) (b) (emphasis added). See also Art. N ( I o ) . Arts. V (I) (g), V(6), and Vl (5)(c) of the IDA Articles of Agreement, above n. 12 contain similar language. '7 Shihata, The World Rank in a Changing World: Selected Essays (1991) p. 66. Contra, see Bowles and Kormos, 'Environmental Reform at the World Bank: The Role of the U.S. Congress' (1995) 35 VirginiaJ Intl L p. 777, 809-13. l8 ICJ, Case Concerning the GabEikov~NagymarosProject (Hungary/Slovakia); ICJ Reports, 1997, p. 7 , para. 140. '9 See the Rio Declaration on Environment and Development (Rio Declaration), Rio de Janeiro, 13June 1992; UN Doc A/CONF.151/26 (Vol I) (1992); 31 ILM (1992) p. 874, Priuciples 4, 11, and 25; A p d a 2 1 , Rio de Janeiro, 13June 1992; UN DOCA/CONF.ry/26 (Vols I, 11, & 111) (1992);and Non-legally Binding

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as well as in several major environmental treaties,20and has been referred to in decisions of international c o u r t s . 2 1 Its legal status, however, remains debated.22 The endorsement of sustainable development, with its 'integrated' conception of d e v e l 0 p m e n t , ~ 3 has led to evolving expectations on the part of the international community of the role of international financial o r g a n i z a t i o n s . ' 4 The latter are now called upon both to contribute to the funding of sustainable development and environmental c o n s e r v a t i o n , ' 5 and to integrate related considerations in their operations.26 General Assembly resolution 47/19' highlights the role of international financial organizations in sustainable development by calling upon the World Bank and other international, regional, and subregional organizations to report to the UN Commission on Sustainable Development (CSD) on their implementation of Agenda 2 I .27

In the wake of UNCED, and following mounting concern over the adverse impact of its lending activities on the environmental and social

Authoritatzve Statement ofPrinnplesfor a Global Consenrur on the M a n . a p n t , Conservatzon and Sustainable Development of All Types of Fmest, Rio de Janeiro, 13 June 1992; UN Doc UNCED Report, A/CONF.151/26 (Vol 111) (1992);31 ILM (1992)881. 10 See, e.g., the UN Framework Convention on Climate Change (UNFCCC), New York, g May 1992; 31 ILM (1992) p. 849, Preamble and Art 2; and Convention on Biological Diversity (CBD), Rio de Janeiro, 5 June 1992;31 ILM (1992) p. 818, Art I . I' See ICJ, Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in A m d Con$icr, ICJReports, 1996.66;Separate Opinion of Vice-presidentWeeramantry, para. 30; ibid., Gabtikouo Case, above n. 18, para. 140 and Part A. WTO, Report of the Appellate Body, United States-Import Prohibition of Certain Shrimp and Shvimp Products, 12 October 1998; WT/DS58/AB/R, para. 129, International Tribunal for the Law of the Sea (ITLOS), Southern Bluefin Tuna Cases (Nau Zxahnd v. Japan; Australia v. Japan), Order concerning the Requests for provisional measures, 27 August 1999. See generally Sands, 'International Courts and the Application of the Concept of "Sustainable Development"' (1999) 3 Max Planck UN Ybk p. 389. See Lowe, 'Sustainable Development and Unsustainable Arguments' in Boyle and Freestone (eds.), Inlaational Law and Sustainable Development (1999) 19. 23 Sands, 'International Law in the Field of Sustainable Development' (1994) 65 RYBII, p. 303, 338-9. z4 Para. 1.3 of Agenda 21, above n. 19, emphasizes the critical need for a global partnership for sustainable development centred on the United Nations system and involving other international, regional, and subregional organizations. See also Handl, Multilateral Development Banking: Environmental Principles and Concepts Refitting General International Law and Public Poliq (2000). The adoption of the UNCED instruments, as well as subsequent environmental treaties, has resulted in t.he progressive integration of environmental norms in international organizations generally. See Werksman (ed.), Greening International Institutions (1996). 25 Para. 33.14of Agenda 21, above n. 19, stipulates, for instance, that '[flunding for Agenda 21 and other outcomes of the Conference should be provided in a way that maximizes the availabilityof new and additional resources and uses all available funding sources and mechanisms. That include, among others: a. The multilateral development banks and funds.' See also UNGA Res S19/2, Pro amme fur the Further Implementation oJAgenda 21, 28 June 1997;36 ILM (1997) p. 1639, para. 78. 2rPara. 38.7 of Agenda 21, for example, recognizes that '[tlhe overall objective is the integration of environment and development issues at national, subregional, regional and international levels, including in the United Nations system institutional arrangements'. 27 See UNGA Res 47/19', Institutional arrangements to follow up the United Nations Conferace on Envzronment and Develqpment (A/Res/47/191); 22 December 1992,para. 23.

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conditions in borrowing states,28the World Bank has explicitly adopted a sustainable development mandate.'g This new mandate is reconciled with the organization's constituent instrument by means of a purposive interpretation,3O which dictates that the Bank's original mandate must be interpreted in light of the shifts in the development paradigm, embodied by the international recognition of the concept of sustainable development.3' Hence, the Articles of Agreement, while they are not as such a source of environmental standards applicable to lending operations, have provided the framework for the expansion of the Bank's mandate to include broad objectives relating, inter alia, to environmental is~ues.3~ The contours of this mandate have been shaped in part by the development of subsequent practice of the organization through the adoption of environment-related operational policies and procedures.

LR See, e.g., Ayres, Bankzngon thePoor: The World Bank and World Poverty (1983);Paul, 'International Development Agencies, Human Rights and Humane Development Projects' (1988) 17 DenverJIntl. L UPracticep. 67; Plater, 'Damming the Third World: Multilateral Development Banks, Environmental Diseconomies, and International Reform Pressures on the Lending Process' (1988) 17 DenverJInt1. L tj.Policy p. 121; Rich, Mortgaging the Earth: The World Bank, Envtronmental Impovoishmnt, and the C h i s ofDeuelupment (1994);Werksman, 'Greening Bretton Woods' in Sands (ed.), (ireeainglnternational Law (1993)p. 65. A recent report by an external Advisory Panel convened by the World Bank's Operations Evaluation Department (OED) in March 2000 has been highly critical of the Bank's performance on the environment. See World Bank, Report of the Advisory Panel, 2 July 2001 (available at URL ). '9 See, e.g., World Bank, MakingDevelupment Sustainable: The World Bank G o u p and the Environmmt (1994); ibid., Advancing Sustainable Deuelopnent: The World Rank and Agenda 21 (1997); ibid., Making Sustainable Commitments. An Environment Strategy for the World Bank, 17 July 2001. See also Mucklow, 'The Integration of Environmental Principles into the World Bank' (2000) g Rev. EC Intl. Envtl. L p. 100. 3° Purposive interpretation is built in Art. 31 of the Vienna Convention on the Law of Treaties, and has been recognized by international judicial fora. See, e.g., the WTO Appellate Body report in the ShrimpTurtle Case, above n. 21, paras. 129-130 (stating that the term 'exhaustible natural resources' is 'evolutionary' and must be read 'in the light of contemporary concerns over the community of nations about the protection and conservation of the environment'). 3' See Ciorciari, 'The Lawful Scope of Human Rights Criteria in World Bank Credit Decisions: An Interpretive Analysis of the IBRD and IDA Articles of Agreement' (zooo) 33 Cornell Intl. LJp. 331; Schlemmer-Schulte, 'The World Bank Inspection Panel: A Model for Other International Organizations?' in Schermers and Blokker, above n. 4, pp. 483,501 (observing that the Bank has been able, 'based on a purposive interpretation of its mandate, to move into new areas beyond the narrow literal meaning of its charter provisions, while, at the same time, respecting its charter's express limitations'). On the limits put on an extensive interpretation of constituent instruments, in particular those dictated by the functional specialization of international organizations, see, e.g., Amerasinghe, Principles of the Institutional Law of International Organisations (1996) p. 24; Leary, 'The WHO Case: implications for Specialised Agencies' in Boisson de Chazournes and Sands (eds.), International Law, the International Court ofJustzce and Nuclear W e a p m (1999)p p 112, 117;Schermers and Blokker, International Institutional Law: Unity Within Diversity (3rd rev. edn., 1gg5),paras. 15-21and 209. 32 The narrowness of the mandate has also led to calls for an amendment of the Bank's Articles of Agreement. See, e.g., Levinson, 'Multilateral Financing Institutions: What Form of Accountability?' (1992)8 American UJIntl. L &Policy pp. 47, 59.

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Operational Policies and Procedures

Within the framework of its charter, the World Bank has since the 1970s undertaken a noteworthy programme of environmental reform.33 The

pursuance of environmental goals by the Bank reflect. the twofold

approach found in Agenda 2 I .34 It comprises on the one hand the funding of 'self-standing' environmental projects (i.e., projects that have as their primary aim the protection of the environment), and on the other the integration of environmental considerations in the Bank's overall loan development activities (sometimes referred to as 'mainstreaming' sustainable development).35 Other activities include the Bank's participation in a number of multilateral environmental trust funds, such as the Global Environment Facility (GEF),36 the Multilateral Fund for the Montreal Protocol (MFMP),37 and the Prototype Carbon Fund (PCF).38 The process of integration of environmental considerations in the Bank's loan development activities has been accomplished primarily through the enactment of internal environmental 'safeguard' policies and procedures.39 The format of these instruments has varied since their inception. They were first issued in the mid-1980s in the form of 'Operational Manual Statements' (OMSs) and 'Operations Policy Notes' (OPNs), and were after 1987 gradually reflected in 'Operational Directives' (ODs).4O In the early ~ggos,a process was initiated to convert the latter into 'Operational Policies' (OPs), 'Bank Procedures' (Bps), and 'Good Practices' (GPs). A clear distinction has been established between standards included in OPs and BPS,which are mandatory upon Bank staff, and those found in GPs, which are merely advisory. This new format was intended to remedy the perceived shortcomings of previous policies, which could embody within the same document both binding and non-binding standards. While introduced as a simple 'streamlining' and 'simplification' process,4' this conversion has also been seen as 33 The Bank's environmental reform most effectively occurred after 1992. See further Wade, 'Greening the Bank: The Struggle over the Environment, 197~1995'in Kapur, Lewis, and Webb (eds.), The Wmld Bank: Its First Half-Century: Perspectives (1997).The mandates of the IFC and MICA have experienced a similar evolution, albeit more recently. 34 See above nn. 25 and 26. 35 See, znter alia, World Bank, Mainstreaming the Environment: The World Bank and the Environment Since the Rio Earth Summit (FY 1995). 36 See GEF, Instrument for the Establishment of the Restructured Global Environment Facility, 16 March 1994~33 ILM (1994) P. 1283. 37 See 4th Meeting of the Parties of the Montreal Protocol, Decision W r 8 , Copenhagen, 25 November 1992;UNEP/OzL.Pro.4/ 15. See URI. . 39 See Di Leva, 'International Environmental Law and Development' (1998) lo Georgetown Intl. Envtl. L Rm.p. 501. On the adoption process of safeguard policies see Boisson de Chazournes, 'Policy Guidance and Compliance: The World Bank Operational Standards' in Shelton (ed.), Commitment and Compliancer The Role oJNon-Binding N o r m in the International Legal System (2000) pp. 281, 284. 4O For a comprehensive account of the various instruments embodying Bank policies and procedures see Shihata, The W d Bank Inspection Panel (1994). p p 42-7. 4' See ibid., pp. 4 5 6 .

340



watering down certain environmental standards in order for them to escape the jurisdiction of the Inspection Panel, which expressly excludes non-binding operational policies and pr0cedures.4~ These internal, quasi-administrative documents43 are intended to provide standards for the Bank's staff to deal with environmental issues44 raised during the project cycle of Bank-funded projects.45 Such issues are addressed primarily through the policies and procedures on environmental assessment, which represent the keystone for the evaluation of the environmental soundness of a pr0ject.4~Additional standards complement environmental assessment requirements with respect to protection measures for the global commons.47 Other Bank safeguard policies and procedures provide specifications, instructions, and guidance in respect of a range of environmental sectors that the Bank has determined affect project development. They concern dam and reservoir natural habitats and endangered species;49 forestry;sOwater management and international waterways;5' cultural pr0perty5~and agricultural pest management.53 In general terms, these environmental policies and procedures require that the Bank apply certain standards during the preparation and appraisal of projects, primarily through environmental covenants found in the loan or credit agreements54 They also demand that the Bank supervises project 4% See Hunter and McCrae, 'Multilateral Lending Activities' (1995) 6 Ybk. Intl. E n d . L pp. 354.356; Kingsbury, 'Operational Policies of International Institutions as Part of the Law-Making Process: The World Bank and Indigenous Peoples' in Goodwin-Gill and Talmon (eds.), The Reality of Intaational Law: Essays in Honuuroflan Browtlie (1999)pp. 323,331; Nathan, 'The World Bank Inspection PanelCourt or Quango?' (1995) 12 JIntl. Arbitration pp. 135, 141-8. See also below n. 144 and related text. 43 See Boisson de Chazournes, above n. 39, p. 281. 44 The policies on indigenous peoples and involuntary resettlement are treated in the context of requirements on transparency and participation. See below n. 82 and related text. 45 The World Bank project cycle typically comprises the following phases: (a) project identification and preparation; (b) project appraisal; and (c) project implementation. 46 See World Bank, Operational Policies, Bank Procedures, and d d Practices, Environmatal Assessment (OP, BP, and GP 4.01) (January 1999).These policies are applicable to all Bank projects, including those funded under the GEF, but not structural adjustment loans or debt and debt service operations. 47 See ibid., Operational Policies, EconomicEvaluation of Investment Operations (OP 10.04) (September '994). 4* See ibid., Safety $Dam (OP 4.37) (September 1996),para. 8. 49 See ibid., Operational Policies and Bank Procedures, Natural Habitats (OP and BP 4.04) (September 1995); ibid., Environmatal Assessment Sourmhk Update, Biodiversity and Environmental Assessment (October 1997). See ibid., OperationalPolicies, Forestry (OP 4.36) (September 1993). 5' See ibid., Water Resuurces Management (OP 4.07) (February 2000); ibid., Operational Policies and Bank Procedures, Projects on International Waterways (OP and BP 7.50) (October 1994). 52 See ibid., OperationalPolicies, Cultural Property (OP 4.1I ) (August 1999). 53 See ibid., Pest Management (OP 4.09) (December 1998). 54 Thus, operational policies and procedures become binding only upon borrower countries when they are incorporated in Loan or credit agreements. On environmental conditionality see Bekhechi, 'Some Observations Regarding Environmental Covenants and Conditionalities in World Bank Lending Activities' (1999) 3 Max Planck UN Ybk p. 287; Shihata, The World Bank in a Changing World (~ooo), pp. 5-4.


341 221

implementation to ensure that borrower States comply with their contractual obligations.55 In case of noncompliance, the Bank has the discretion to impose sanctions, such as, for instance, to suspend or cancel the right of the borrower to make withdrawals from the loan account or even to suspend a member State's rnembership.56 The Bank's policies and procedures are to be viewed in a wider context than the internal legal order of the organization.57 As an organization with international legal personality, the World Bank operates within the framework of international law. It has accordingly committed itself to pursue its activities in compliance with international environmental instruments. The Bank 'does not finance project activities that would contravene [the obligations of the borrowing country under relevant international environmental treaties and agreements] '.58 Irrespective of the participation of borrowing States in particular environmental treaties or agreements, a policy directive of the organization stipulates that: The World Bank, an organization created and governed by public international law, undertakes its operations in compliance with applicable public international law principles and rules. These principles and rules are set forth in instruments such as treaties, conventions, or other multilateral, regional, or bilateral agreements. In addition, certain legally significant non-binding instruments, such as statements of policy reflected in Agenda 21 of the U.N. Conference on Environment and Development . . . reflect other international law principles and obligations.59 Hence, the Bank undertakes its mandate in compliance with any international environmental instrument to which the borrower is a party, as well as other international environmental principles and rules, including those couched in instruments to which the borrower is not a . ~ ~ the Bank is not a party to party, and non-binding i n s t r ~ m e n t sWhile multilateral environmental agreements, and is thus not bound by them

55 See World Bank, Operational Directive, Project Supervision (OD 13.05) (March 1989); ibid., Project Moniton'ng and Evaluation (OD 10.70) (November 1989). 56 See IBRD, General Conditions Applicable to Bank b a n and Guarantee Agrennents, 30 May 1995, Art VI; IDA, Gaeral Conditions Applicable to Development Credit Agreemats, I January 1985, as amended on 6 October 1999,Art VI; IBRD Articles of Agreement, above n. 12, Art VI(2); IDA Articles of Agreement, Art VII(2). 57 See Wirth, 'Economic Assistance, the World Bank, and Nonbinding Instruments*in E. Brown Weiss (ed.),Inlernational Compliance with Nonbinding Accords (1997) p. 219. s8 OP 4.01, above n. 46, para. 3. 59 World Bank, Envimmental Assessmat Sourcebook Update, International Agreement.7 on Environment and Natural Resources: Relevance and Application in Environmental Assessment, March 1996. I . 60 Emphasizing such an undertaking, the World Bank's President stressed in his 1997 speech before the UN General Assembly that the Bank would help to promote the goals of international environmental conventions. See Wolfensohn, President, The World Bank, 'Towards Global Sustainability. Remarks to the United Nations General Assembly Special Session o n the Environment', New York, 25 June 1997.

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under the law of t r e a t i e ~ , ~international ' environmental standards represent fundamental yardsticks in the elaboration, interpretation, and application of internal policies and procedures.62 Certain internal policies and procedures do indeed explicitly refer to multilateral ~tandards.~3

Transparency and Participatory Requirements a number of As a recent trend in international de~ision-making,~4 international agreements embody requirements for transparency and public participation in international fora as necessary means to realize sustainable de~elopment.~5Increased transparency and public participation are considered to fulfil the idea that international governance needs to attain certain standards of democratization and accountability, thereby enhancing its legitimacy.66They also have a role to play in ensuring state compliance with their international environmental 0bli~ations.~7Principles on transparency and participation are found in the non-binding instruments adopted at the 1992 UNCED. The Rio Declaration proclaims that '[elnvironmental 6' For lack of space, the present article does not examine the international obligations incumbent upon the Bank. A systematic study of the international environmental rules, as well as public policy criteria, that apply to multilateral development banks' operations is found in Handl, above n. 24. b2 See Boisson de Chazournes, above n. 39, p. 297; Shih, 'The World Bank and Climate Change' (2000) 3 J Intl. Economic L p. 633. This process operates both ways, as Bank policies can in turn potentially influence the development of international law. On such a contribution see Kingsbury, abovc n. 42; Shihata, above n. 54, pp. 487-512. 63 See, e.g., OP 4.04, above n. 49, Annex A, para. (b) (i) (standards elaborated by the International Union for the Conservation of Nature (IUCN) for protected areas); OP 4.09, above n. 53, para. 6 ('World Health Organization's Recommended Classificationof Pesticides by Hazard and Guidelines to Classification'). 64 See Wirth, 'Reexamining Decision-Making Processes in International Environmental Law' (1994) 79 Iowa L Rm. p. 7 6 9 See also ILC, Rao, Special Rapporteur, Third Report on International Lzability for Injurious Consequaces Ariszng out of Arty not Prohibited by International IAW (Preventton of T m n s h n d a r y Damage born Hazardous Actimties), 9 June 2000; A/CN.q/yo, Annex, Revised draft articles, Art. 8[9] (setting forth a generally defined duty of States to provide the public with relevant environmental information). 65 See Sands, A i n n p k . ~of International Environmental Law. Volum I (1995). pp. 355-60. See also World Bank, The World Bank Policy on Disclosure of Information (Disclosure of Information Policy) (March rggq), para. 3; World Bank, Annual Report FY 1998 (1998))p. 73. For a discussion of the various legal and sociological theories applicable to the linkage between participation and legitimacy in environmental law and policy see Ebbesson, 'The Notion of Public Participation in International Environmental Law' (1997) 8 Ybk Intl. Envtl. L p. 51. Generally, see Bodansky, 'The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?'(~ggg)93 AJIL p. 596. 61312. A recent report has found that '[tlransparency is an important means of enhancing the performance and public accountability of international financial institutions': G m , Report of the Working Croup on Transparency andAccountability, October 1998 (under the heading 'Preface'). 67 See Bothe, 'The Evaluation of Enforcement Mechanisms in International Environmental Law' in Wolfrum (ed.), Enforcing Environmental Standards: Economic Mechanisms as Viabk Means? (1996) pp. 13, 19; Sachariew, 'Promoting Compliance with International Environmental Legal Standards: Reflections on Monitoring and Reporting Mechanisms' (1991)2 Ybk. Intl. Enutl. L pp. 3 1 , 33.

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223

issues are best handled with the participation of all concerned citizens, at the relevant Building on this provision, Agenda 2 1 reaffirms that '[olne of the fundamental prerequisites for the achievement of sustainable development is broad public participation in decisionmaking',69 and sets forth recommendations for broader access of civil society to environmental information and a greater role in international f0ra.7~These principles have been concretized in the Aarhus Convention on Access to Information.7' Thev are also found in several multilateral environmental treaties, including the UN Conventions on Climate Change and Biodiversity.7Transparency and participatory procedures are aimed at a wide range of beneficiaries, primarily the general public, interest groups, non-governmental organizations, and local communities. The entities or persons concerned may be entitled to receive environmental information and have the opportunity to provide input in decision- and rule-making processes on a broader basis than is ordinarily the case in the context of disputesettlement mechanisms, where a legal interest has to be shown. From this stems a broader understanding of the rights of non-state actors to act on behalf of public interests, as, with respect to such norms, 'the need to show a private interest in the issue at stake is even further reducedl.73 International organizations such as the World Bank have become addressees of transparency and participatory requirements. For example, Agenda 21 calls upon 'international finance and development agencies', amongst others to, 'in consultation with non-governmental organizations, take measures to . . . [plrovide access for nongovernmental organizations to accurate and timely data and information to promote the effectiveness of their programmes and activities and their roles in support of sustainable development'.74 The Aarhus Convention, Rio Declaration, above n. 19, Principle lo. See also Principle 22. Agenda 21, above n. 19, para. 23-2. See also UNGA Res. S--19/2, above n. 25, para. 108. See Agenda zr, above n. 19, paras. 8.2-8.3, 8.4(f) 8.11, and chap. 40. 7' Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), 25 June 1998,UN Doc ECE/CEP/43; 38 ILM ('999) P. 5'7. j 2 See UNFCCC, above n. 20, Arts. 6,7(2) (f), 7(6), 12(9) and (10);CHD, above n. 20, Preamble and Arts. 12(a), 13, and 23(5). For a survey of the incorporation of transparency and participatory principles in multilateral environmental treaties see Wiser, Center for International Environmental Law (CIEL), Transparency in ztS' Century Fitheries M a n a g m t (July 2000). In the European context, the consolidated EC Treaty gives any EU citizen or resident a right of access to documents of the Council, Commission, and Parliament, subject to 'general principles and limits on grounds of public or private interest', to be drawn up by the Council. See Treaty Establishing the European Community (FC Treaty), Art. 255. 73 Ebbesson, above n. 66, p. 57. 74 Agenda 21, above n. 19,para. 27.9(g). See also UNGA Res. S19/2 ,above n. 25, p,ara. 112.Arguing that the development of formal and transparent mechanisms allowing for a mln~mumlevel of participation in all their operations is indeed an obligatton incumbent upon international financial organizations, see Bradlow and Grossman, 'Limited Mandates and Intertwined Problems: A New Challenge for the World Bank and the IMF' (1995) 17 Human Rtghls Qpp. 411, 428-9 6R

9'

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while it does not bind such organizations, requires States parties to 'promote the application of the principles of this Convention in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment'.75 By way of response, the Bank, which has historically shown has initiated the process secrecy and lack of openness in its 0~erations,7~ of setting up a legal and policy framework for increased transparency and public participation. It aims primarily at improving the quality of loan development operations, by encouraging a better understanding of the conditions pertaining to a given project, permitting a wider representation of the interests at stake, and fostering public support and a sense of 'ownership' of the project amongst local populations.77 Policies and procedures relate first to the disclosure of information, in particular environmental information, in the course of the Bank's 0~erations.7~ Significant exceptions to disclosure stem however from confidentiality considerations.79 Secondly, a policy has been adopted that sets out general standards for involving non-governmental organizations and individuals at various stages of Bank operations.80But because it is set out in the 'good practices' format, it is not binding upon Bank staff and thus escapes the Inspection Panel's juri~diction.~'Transparency and participatory requirements apply also in the context of the Bank policies on indigenous peoples and involuntary resettlement, where they aim to assist in the elaboration of protective measures for indigenous peoples and the application of adequate resettlement measures.82

75 Aarhus Convention, above n. 71, Art. 3(7) (emphasis added). It is interesting to note that the EBRD is the only international financial organization to have explicitly implemented this provision. It has committed itself to 'take into account the Aarhus Convention, the general spirit, purpose and ultimate goals of which are subscribed to by the EBRD in the implementation of its Environmental Policy, along with other relevant international conventions': EBRD, Public Infanation Policy (ZOOO), para. I (d). See, e.g., Rich 'The Emperor's New Clothes: The World Bank and Environmental Reform' (1990) 7 World Policy Jp. 305. 77 See Aarhus Convention, above n. 71, Preamble. See also Annual Report (FY ~ g g g )above , n. 2, pp. 139-40; World Bank, Environmental Assessment Sourcebook Update,Public Consultationin t h e m Process: A Strategic Approach (May ~ggg),p. 1. 78 See World Bank, Bank Procedures, Disclosure of Operational Information (BP 17.50) (September 1993); Disclosure of Information Policy, above n. 65. These documents cover lBRD and IDA operations, as well as activities undertaken in connection with projects funded under the global trust funds. 79 See Disclosure of Information Policy, above n. 65, paras. 49-56. The World Rank indeed considers that 'the effective functioning of the Bank necessarily requires some derogation from complete openness': ibid., para. 49. See World Bank, Good Practices, Involuing Nongouernmatal Organizations in Bank-Supported Actimties (GP 14.70)(February 2000). See below n. l q q and related text. See World Bank, Operational Directive, Indigenm Peopks ( O D 4.20) (September ,991).paras. 8 and 13-18; ibid., Involuntary Resettlement (OD 4.30) (June ~ggo),paras. ~ ( c )6,, 8-g, and 30.


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Origins and Institutional Coverage The accountability of the World Bank for its compliance with the environment-related norms described in the above part of this paper may be raised before an Inspection Panel. The Panel, a permanent body set up in 1993, is a novel mechanism in international institutional law. It allows private actors to hold an international organization directly accountable for its non-compliance with internal rules and procedures. The Panel cannot address the issue of the non-compliance of (borrowing) States with environmental norms. The World Bank model has been followed in two regional multilateral development banks, the Inter-American Development Bank (IADB) and the Asian Development Bank (ADB),which set u 'Independent Inspection Mechanisms' in 1994 and 1995, respectively% Surprisingly in view of its sustainable development mandate, the EBRD has yet to implement an equivalent independent supervisory b 0 d ~ . ~ 4 The Inspection Panel was created primarily in response to concerns, both internal and external to the World Bank, over the adverse environmental effects stemming from Bank activities, as well as a marked lack of transparency and a~countability.~5 While there 'is little question that the World Bank's environmental and social rhetoric and procedures are '3 See IADB, The IADB Independent Investigation Mechanism (as amended August 2000);ADB, ADBi Inspection Pohq. A Guidebook (October 1996). The Independent Inspection Mechanisms are modelled after the Panel in terms of their overall objectives and jurisdiction, in that, broadly speaking, they aim to provide fora for local groups in borrowing countries to bring claims of the organizations' non-compliance with internal rules and procedures in the context of specific projects. They nevertheless present important institutional and procedural differences. Most significantly, the IADB and ADB maintain a roster of independent experts from which ad hoc inspection panels are drawn on the basis of a decision of the Boards of Directors of the Banks. Furthermore, both mechanisms have been virtually inactive: as yet, the LADB's Inspection Mechanism has dealt with one request only (see IADB, Independent Investigation Mechanum, Report of the Revmew Panel -Yacyreta Hydroelectric Project, 15 September 1997).while the ADB's is in the process of considering its first request, concerning the Samut Prokarn Wastewater Managemat Treatment Project in Thailand. 4' See above n. 13. Criticizing the EBRD's environmental record, see Goldberg, TheEuropean Bank for Reconstruction and Developmat: An Enviramental Progress Report (1995); Saladin and Van Dyke (CIEL), I m p h t i n g the hnciples of the Public Participation C a v e n t i a in International Organizations (CIEL Working Paper 1998))pp. 27-33. 85 For an account of the initial propositions for an inspection function at the Bank see Bradlow, 'International Organizations and Private Complaints: The Case of the World Bank Inspection Panel' (1994) 34 VirginiaJIntl. L pp. 553, 565-71. See also Cahn, 'Challenging the New Imperial Authority: The World Bank and the Democratization of Development' (1993)6 Harvard Human Rights Jpp. 159, 190 (proposing the establishment of an external 'watchdog agency' to the Bank); Wirth, 'Legitimacy, Accountability, and Partnership: A Model for Advocacy on Third World Environmental Issues' (1991) 100 Yak LJpp. 2645,2664 (recommending that of a 'private attorney general' model). See also, above n. 28.

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exemplary [wlhat is controversial is how well it follows Two reports mandated by the Bank in the early 1990sshed light on the existence of serious flaws in the loan development process, namely the Morse Commission ~ e ~ o rand t ~ the 7 Wapenhans Reporta8External pressures for an improvement in the Bank's loan development activities came most strongly from non-governmental organizations, as well as influential member countries such as the United ~tates.89These pressures crystallized during the finalization in 1993of the Tenth Replenishment of the resources of the IDA by donor countries, where the United States made its financial contribution to the IDA conditional upon the establishment of an independent scrutiny function by the World B a n k . g o These circumstances prompted the Board of Executive Directors to establish an Inspection Panel, by means of resolutions Nos. 93-10 and 93-6 (hereafter referred to collectively as the 'Resolution'), in order to provide a body competent to review, and if appropriate investigate, complaints against the Bank.9' The Inspection Panel is located within the World Bank, and has its own secretariat and budget.g2By July 2001, there had been twenty-three formal requests for inspections, of which three were not registered because they clearly fell outside the scope of the Panel's jurisdiction.93 Two reviews of R6 Gillespie, The Illusion of Progress: Sustainable Development in International Law and Policy (2001), p. 12. For an assessment of the Bank's environmental record see World Bank, Sector and Thematic Evaluation Group, OED, O m Rmzm of the Bank's Performance a the Environment (2001) (OED Environmental Review) (5 July 2001). '7 See Morse and Berger, Sardar Sarouar: Rqbort of Ihe Independent Reuiew. Morse Commission (1992). See further Khan, 'Sustainable Development, Human Rights and Caod Governance-A Case Study of India's Narmada Dam' in Ginther, Denters, and De Waart (eds.), Sustainable Development and Good p. 420. Governance (1995)~ See World Bank, Wapenhans, Report of the World Banki Portfolio Management Task Force-Effecective I m p h t a t i o n : Key toDevelopment (1992). See further Fauteux, 'Multilateral Lending Activities' (1993) 4 Ybk. Intl. Envtl. L pp. 286, 287. '9 See generally Bowles and Kormos, above n. 17. See also the US International Institutions Act as amended by the 1989 International Development and Finance Act (so-called Pelosi Amendment), under which the US Executive Director must abstain from any vote on a project that would have a significant impact on the environment unless an environmental assessment has been made available to local project-affected groups and non-governmental organizations, as well as to the Board of Executive Directors, 120 days in advance of the vote. This requirement is however not applicable when there are compelling reasons to believe that disclosure would jeopardize the confidential relationship between the borrowing country and the Bank. See IDFA 1521, 103Stat at 2511 (codified as amended at 22 USC 1262m-7 (1988)). go See Shihata, above n. 40, p. 9. 9' See IBRD Resolution No. 93-10 and IDA Resolution No. 93-6, The Wmld Bank Inspection Panel, 22 September 1993, 34 ILM (1995) p. 520. See also ibid., IBRD/IDA, qberalingProcedu7es ar &opted by the Panel on August 19, rggg (Operating Procedures); ibid., Administrative Procedures of the In.@ction Panel (Administrative Procedures) (as amended by the Panel to July 1998). g2 See Resolution, above n. 91, para. 11. The Panel's budget from I August 1999 to 31 July 2000 amounted to approximately USQ12.2million. See Inspection Panel, AnnualReport. August I , rggg toJuly 31, 2000 (2001), p. 68. 93 For an updated status, see URL .Accounts of the Panel's first 4 years have been made by its two former Chairmen: Bissell, 'Recent Practice of the Inspection Panel of the World Bank' (1997)91 AJIL p. 741;and Umafia Quesada (ed.), The Inspection Paanel: TheFirst F a r Yean (1998).

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the Panel's work by the Executive Directors have taken place, in 1996and 1999,resulting in the adoption of 'clarifications' (hereafter the '1996 and 1999 Clarifications') .94 These clarifications are considered, from a legal standpoint, 'authoritative commentaries' on specific points of the

Resolution establishing the Panel, including general interpretations of

notions found in the text, and flexible practices developed under it and approved of by the Board, which is vested with the authority to interpret the Panel's governing text.95 As seen below, the 1999 review, which was initiated as a result of serious tensions within the organization's Board of Executive Directors over matters related to the Panel, was particularly significant, as the resulting clarifications represented an overall endorsement of the Panel by the Bank. The Inspection Panel's institutional coverage is limited to the IBRD and the IDA. It does not currently extend to private sector activities ~ which a Compliance within the IFC and the M I G A , ~ for Adviser/Ombudsman (CAO) was established in 1998.97 Under the Ombudsman role, the CAO can respond to complaints by persons who are affected, or are likely to be affected, by the social and environmental impacts of IFC and/or MIGA funded projects, and addresss the issues raised using a flexible and problem-solving approach.q8 In this capacity the CAO has to date received a total of nine formal complaints, of which seven have been accepted, and one has been closed.99 Complaints may be received that are being dealt with in parallel by the Inspection Panel, in cases where projects are jointly financed by IFC or MIGA and the World Bank. The CAO, unlike the Panel, has been granted the additional function of undertaking compliance audits of IFC and MIGA's social and environmental performance, as well as advising and assisting both institutions on 9 See World Bank, Review of the Resolution Establishing the Inspection Panel: Clanjication of Certazn Aspects of the Resolution (17October 1996);ibid., Conclusions of the Board's Second Reuiew of the Inspection Panel (20 April 1999). 95 See Schlemmer-Schuke, 'Introductory Note to the Conclusions of the Second Review of the World Bank Inspection Panel' 39 ILM (2000) p. 243, 244; Shihata, The World Rank Inspectton Panel: In Practice, 2nd edn. (ZOOO), pp. 155-203. 9"he IFC engages in financing for private enterprises without government guarantee, while the MIGA provides guarantees against various types of noniommercial risks faced by foreign private investors in developing countries. 97 See IFC, Operational Guidelines for the Office ofthe lFC/hUGA Compliance Advisor Ombudsman (CAO Operational Guidelines) (2000). The CAO was created following an independent review mandated by the Bank's President to assess the IFC's compliance with applicable social and environmental guidelines in the Pangue/Ralco hydroelectric project, which was deemed to fall outside the Inspection Panel's jurisdiction. See Inspection Panel, Request for Inspection-IFC Financing of Hydroelectric Dams in the BioBio River in Chile (INSP/SecMg-8), I December 1995; Hair, PanguePrqect Jay Hair Rev& w o r t (IFC Report No. 2067) (15July 1997). g8 See CAO Operational Guidelines, above n. 97, para. 1.1.2 ( I ) and Section 2. 99 The complaint concerned the Jordan Gatmay Project, and was submitted in December 2000. At the time of writing, the CAO report was not yet available. See URL .

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THE ENVIRONMENTAL ACCOUNTABILITY OF

controversial projects or on specific policies and procedures (Compliance and Advisory roles) .Io0 While the Resolution contains no explicit mention of the point, the functions of the Panel apply to the Bank's role as trustee and main implementing agency of the GEE and other multilateral environmental trust funds such as the MEMP.'O1 This interpretation is confirmed by the Board's implicit acceptance of the Panel's assertion of jurisdiction in requests involving GEF-financed projects.Io2 The establishment of the Inspection Panel thereby widens the possibilities for establishing accountability in the context of global trust funds. The fact that 'secondary' trust beneficiaries other than States, such as locally affected groups and non-governmental organizations, have standing to invoke the Bank's duties as trustee and implementing agency-to the extent that they are embodied in rules subject to review by the Panel-may evidence an evolution toward the wider recognition of beneficiaries' rights in the context of the ownership of trust funds.1°3 Composition

The Inspection Panel is composed of three panellists of different nationalities from Bank member countries.'O4 The Resolution does not require more specific geographic representativeness, nor gender balance. The Panel has until now traditionally consisted of two Westerners and one national of a developing country. The first woman panellist was elected in July 1999. Panel members are nominated by the Bank's President after consultation with the Executive Directors.Io5 Candidates for appointment to the Panel are required to possess an 'exposure to developmental issues and to living conditions in developing countries', an 'ability to deal thoroughly and fairly with the requests brought to them', as well as 'integrity and . . . independence from the Bank's ~ a n a ~ e m e n tWhile ' . ~ ~there ~ are n o requirements concerning the legal, technical, or scientific expertise of panellists, they have the See CAO Operational Guidelines, above n. 97, para. 1.1.2(2) and (3) and Sections 5 and 6. See Shihata, above n. 95, pp. 34-5 (spec@ng that the Panel'sjurisdiction does not extend to issues of compliance with other policies and procedures adopted separately by the GEF Council, unless the Bank agrees otherwise or these policies and procedures are integrated in Bank documents). '02 See Inspection Panel, w o r t and Recornmadation olt Request for Inspection concerning India: Ecodmelopmenf Ryect Rajiv Ghandi (Nagarahole) Natiunal Park (Credit No. zgrG-m, GEF TmstFund Grant No. TF028479 ZN), 21 October 1998; ibid., Investigation Report on h y a : Lake Vtcta'a Environmental Management Project ( D A Credit 2907-KE and GEF TFz38rg), 20 December 2000. 1°3 See Redgwell, Intergenerational Trusts and Environmtal Protection (rggg), p. 171; Sand, 'Trusts for the Earth: New International Financial Mechanisms for Sustainable Development' in Lang (ed.), Sustainable Development and International Law (1995)pp. 167, 180. 'O4 See Resolution, above n. 91, para. 2. 1°5 See ibid. '06 See ibid., para. 4. '0°

'OL

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229

possibility to consult external expert~.'~7 Panellists are however required under the Resolution to seek the advice of the Bank's Legal Department on matters related to the Bank's rights and obligations.lo8 Bank staff cannot serve on the Panel until two years have elapsed since the end of their service in the World Bank Croup, and panellists cannot be reemployed thereon at the end of their term.I0g Panel members serve a non-renewable five-year term of office."O The Executive Directors decide on their remuneration and removal from office 'for cause'.lH Panel members work on a full-time basis when the workloadjustifies such an arrangement, as recommended by the Panel and approved by the Bank's Board of Executive Directors.II2 Normally, however, only the Chairperson works on a full-time basis, and the other two members are called upon when actual requests for inspection or other Panel business require their presence."3 Panellists are considered Bank officials. They thus enjoy related privileges and immunities and are subject to the 'requirements of the Bank's Articles of Agreement concerning their exclusive loyalty to the Bank' and to the Bank's applicable Staff Principles.114 Jurisdiction The jurisdiction of the Inspection Panel is assessed during the first phase of its functions, that is, when determining on a primafacie basis the eligibility of submitted requests."5 This determination enables the Panel to make a recommendation to the Executive Directors on whether or not the matter should be i n v e ~ t i ~ a t e dThe . " ~ Panel's jurisdiction is tested with regard to considerations of time, standing, and applicable law. Temporal Jurisdiction The Inspection Panel's jurisdiction is subject to three limitations in terms of time. First, the Panel represents a mechanism of 'last recourse'. It has jurisdiction only after the requester has exhausted other avenues within the Bank,117 i.e., has submitted the request to the Bank's 'O7 See Operating Procedures, above n. 91, para. 45(e); Administrative Procedures, above n. gr, paras. 49-50. lo* See Resolution, above n. gr, para. 15; 1999Clarifications,above n. 94, para. 6. See Resolution, above n. 91, paras. 5 and lo, respectively. 'I0 See ibid., para. 3. "' See ibid., paras. ro and 8, respectively. 'I2 See Administrative Procedures, above n. 91, para. 18. "3 See Resolution, above n. 91, para. g. "4 Ibid., para 10. "5 The second phase of the Panel's functions consists in the investigation process, which is treated below. It is only at that time that the merits of the request are dealt with. l B 6 See Resolution, above n. 91, para. 19;Operating Procedures, above n. 91, para. 37. "7 Under the Resolution, the exhaustion of local remedies is not a requirement for bringing a claim to the Panel. However, in determining the alleged harm, the Panel has found that requesters need to exhaust all possible legal remedies available to them prior to bringing a complaint. See

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Nun-State Actors and International Law 230


Management, which has then failed to provide the Panel, within twentyone days, with evidence that that it has complied, or intends to comply, with the applicable norms.rr8The Panel begins its review of the eligibility of the request within twenty-one days from the response of Management."g Secondly, the Panel is not competent to receive requests '[rlelated to a particular matter or matters over which the Panel has already made its recommendation upon having received a prior request, unless justified by new evidence or circumstances not known at the time of the prior request'.12oThirdly, only requests involving the allegation of harm which has occurred or is likely to occur as a result of proposed or on-going projects-that is, during the design, appraisal, and implementation phases of the project cycle-can be brought before the Panel.12'The Panel's jurisdiction, accordingly, does not extend to requests filed after the closing date of the loan financing the project with respect to which the request is filed, or after the loan financing the project has been substantially disbursed.122In the case of complex projects involving several loans, both the Panel and the Bank's General Counsel have confirmed that a request is not time barred if a project initially funded by a Bank loan which has been fully disbursed is subsequently financed by a supplemental loan which has yet not been disbursed.123 Personal Jurisdiction One of the most important features of the Panel's jurisdiction is that it gives standing to third parties, including private parties. Traditionally, international financial organizations such as the World Bank have been perceived as having no direct relationship with individuals, interest groups, and local communities in borrowing countries, and thus no direct accountability to them. Non-state actors have also been generally denied access to international judicial or quasi-judicial fora.I24 Consequently, the Inspection Panel, +art and Recommendation on Request of Inspection cacerning Lesotho: Lesotho Highlands WatmProject (Loan No. 4.vg-LSO), 2 3 July 1999. ""ee Resolution, above n. 91, paras. 13 and 1618; 1999Clarifications,above n. 94, para. 4. "9 See Resolution, above n. yr, para. rg; 1999 Clarifications, above n. 94, para. 8. ' 2 0 Resolution, above n. 91, para. q ( d ) . 12' See ibid., para. 12. I z 2 Disbursement is considered to have taken place when at least 95% of the loan proceeds have been disbursed. See ibid., para. q ( c ) (n. I ) . 123 See Inspection Panel, Request for Inspection-Brazil: Itapanca Resettlemat and Irrigation Pmject (lNSP/Rgg7-7),27 June 1997; Legal Opinion of the Senior Vice President and General Counsel, Time Limits on the Elzgibility of Complaints Submitted to the Inspection Panel (SecMg7+93), 28 July 1997, internal document cited in Schlemmer-Schulte 'The World Bank's Experience With Its Inspection Panel' (1998) 58 Zeitschnftefur ausliindischer o;rfmtliches Recht pp. 353, 371, n. 84. 124 See Nguyen, Dailler, and Pellet, Droit intaational public (6th edn., rggg), para. 444. There are of course a number of exceptions. Under the law of international organizations, administrative tribunals may be established, as is the case within the World Bank, to address disputes between the organizations and their staffs on the application of internal staff regulations. See Amerasinghe. The Law of the International Civil Service (2nd edn., 1994) W i l e the European Community remains a unique case, the ECTreaty grants remedies for individuals against actions and omissions of


351 271

right for such actors to '[elffective access to judicial and administrative proceedings, including redress and remedy', in the international context as well as the domestic one, has been anchored in the UNCED instr~ments.'~5 This principle is implemented in the Aarhus c on vent ion."^ The establishment of the Inspection Panel responds to such calls and creates a legally significant relationship between third parties and the Bank, i.e., without the intervening presence of the member States.127 The standing of non-state actors before the Panel depends upon three conditions. First, requesters cannot be a single individual, but must be a 'community of persons such as an organization, association, society or other grouping of individual^'.'^^ This community of persons must moreover represent a 'commonality of interests', that is, the persons must share some 'common interests or concerns'.129 The community of interest need not precede the events that led to the request for inspection, but may result from the sharing in the alleged harm that causes affected parties to act together.'s0 (in contrast, the IFC/MIGA CAO's jurisdiction extends to submissions by single individuals who are affected, as well as by loose aggregations of individuals that do not necessarily have a 'commonality of interests').l3' Secondly, requesters must be located 'in the territory of the borrower'.'Y This means that such

Community institutions. See EC Treaty, Arts 230(3), 232(3), and 235 in connection with Art. 288(2). Furthermore, non-state actors are granted the right to file complaints before international tribunals under international and regional international h u n ~ a nrights instruments, albeit only with regard to claims against States. Finally, it is noteworthy to mention here that under the North American Free Trade Agreement (NAFTA), different forms of direct access by private parties to inter-state settlement procedures are provided. See North American Free Trade Agreement, 8 December 1992, 32ILM (1993) p. 289. See in particular the process of 'Submissions on Enforcement Matters' established by the North American Agreement on Environmental Cooperation (NAAEC) concluded under NAFTA, which provides a forum for residents including non-governmental organizations of any of the parties to allege a party's 'failure to effectively enforce its environmental laws'. North American Agreement on Environmental Cooperation, 8 September 1993, found at URL ), Arts. 14-15. 125 Rio Declaration, above n. 19, Principle 10. See also Agenda 21, above n. 19,paras. 8.18and 27.13. See generally Cameron and Mackenzie 'Access to Environmental Justice and Procedural Rights in International Institutions' in Boyle and Anderson (eds.), Human Rights Approaches to Enuironmatal Protection (1996) p. 129. Iz6 See Aarhus Convention, above n. 71, Art 9. 127 On the impact of the Panel o n the position of individuals in international law, see Bradlow and Schlemmer-Schulte. 'The World Bank's New Inspection Panel: A Constructive Step in the Transformation of the International Legal Order' (1994) 54 Zeitschrijfkr ausliindisches oyfathches Recht und Vokerrerht pp. 392,402-6; Hey, 'The World Bank Inspection Panel: Towards the Recognition of a New Legally Relevant Relationship in International Law' (1997) 2 Hofstra L 15'Poliq Symposium p. 61. r 2 ~ e s o l u t i o nabove , n. 91, para. 12. This provision makes clear that both legal and natural persons are concerned. I2q 1996 Clarifications, above n. 94, (under the heading 'Eligibility and Access'). See also Shihata, Legal Opinion of the Senior Vice President and General Counsel, 'Role of the Inspection Panel in the Preliminary Assessment of Whether to Recommend Inspection', 34 ILM (1995)pp. 525,527-8 '3O See Shihata, above n. 95, p. 60. '3' See Operational Guidelines, above n. 97, para. 2.2.1. '3* Resolution, above n. 91, para. 12.

352



groups must have a real territorial presence, which, in the case of associations and other incorporated entities, implies that they should have substantive activities in the territory.'33 Thirdly, requesters must be 'affected' parties, i.e., parties whose 'rights or interests have been or are likely to be directly affected by an action or omission of the Bank' which has had, or threatens to have, a 'material adverse effect'.'34 According to the Bank's former General Counsel, the terms 'rights' and 'interests' should be given their usual legal meanings.'35 In other words, they include not only titles, powers, and privileges granted by law, but also the avoidance of physical, financial, or intangible harm that otherwise affects the requester. For assessing the material adverse effect, 'the without-project situation should be used as the base case for comparison, taking into account what baseline information may be available'.13~ Requesters can be represented before the Panel either by local representatives, or, upon authorization of the Executive Directors, by foreign representatives in the 'exceptional cases' where appropriate representation is not locally available.'37 This provides the opportunity for requesters from developing nations to be represented by Western non-governmental organizations with better resources. For instance, a US-based organization represented the local project-affected people before the Panel in the China Request.138 In addition to external requesters, requests for inspection can be submitted by any individual Executive Director of the Bank, or by the Executive Directors acting as a Board. This competence arises ' [i]n view of the institutional responsibilities of Executive Directors in the observance by the Bank of its operational policies and procedures'.'39 When an Executive Director acts alone, an investigation may be requested only 'in special cases of serious alleged violations of policies and procedures', whereas when the Directors act as a Board, they may 'at any time instruct the Panel to conduct an investigation'.'4O See Shihata, above n. 95, p. 62. Resolution, above n. 91, para. 12. Note that the 'affected party' cannot be the borrower itself, as disputes arising between the Bank and borrowing states are to be settled by negotiation or arbitration under the general conditions applicable to loan agreements. See IBRD, General Conditions Applicable to Loan and Guarantee Agreements (1995). Furthermore, complaints from suppliers, contractors, or losing bidders against procurement decisions under Bank-financed projects are excluded. See Resolution, above n. 91, para. 14(b); 1996 Clarifications, above n. 94, (under the heading 'Eligibility and Access'). '35 See Shihata, above n. 95, pp. 5657. 1 3 1999 ~ Clarifications, above n. 94, para. 14. '37 See Resolution, above n. gr, para. 12; Operating Procedures, above n. gr, para. 39. '3R See below n. 201 and related text. '39 See Resolution, above n. gr, para. 12. See also IBRD Articles ofAgreement, above n. 12, ArtV(4) (providing that the Executive Directors of the Bank are responsible collectively for the conduct of the general operations of the Bank). '4' See below n. 204 and related text. '33 '34

353

Non-State Acton and International Law TIIE WORLD BANK TO NON-STATE ACTORS

233

Subject-matter Jurisdiction The Resolution establishing the Panel provides that a request is admissible only when it invokes a causal link between the alleged harm and a 'failure of the Bank to follow its operational policies and procedures with respect to the design, appraisal and/or implementation of a project financed by the Bank (including situations where the Bank is alleged to have failed in its follow-up on the borrower's obligations under loan agreements with respect to such policies and procedures)'.'4' The alleged violation must, furthermore, be of 'a serious The Resolution thus expressly limits the scope of the applicable law to internal Bank norms that have a binding character, namely OPs, BPS, ODs, and 'similar documents before these series started'.'43 Non-binding documents such as 'Guidelines and Best Practices and similar documents or statements' are excluded from the Panel's jurisdiction.'@ They may however be used by the Panel in interpreting and assessing levels of compliance with binding instruments.I45 The scope of the applicable law is also curbed in that requests can allege only violations of binding operational policies and procedures when they apply to a Bank 'project'. The latter term has its ordinary meaning in Bank practice. It thus includes all types of programmes and development-assistance activities.'@ The determination of what constitutes a 'policy related to a Bank project' may be ambiguous in two instances. In the case of expropriation, the Panel found eligible a request alleging Bank non-compliance with its policies on expropriation.'47 Management in that case did not contest the Panel's jurisdiction over the ~ o m ~ l a i n t .The 1 4 ~ second instance concerns Bank policies arising in the course of adjustment operations, which involve the financing of broad macro-economic policy, structural or sectoral adjustment measures '4' Resolution, above n. 91, para. 12. See also ibid., para. rq(a); 1999 Clarifications, above n. 94, paras. 3(ii-iv) and 12. '42 Resolution, above n. 91, para. 13. '43 Ibid., para. 12. As described earlier in this article, there exist some ambiguities with regard to the binding force of standards embodied in the documents that preceded the OP/BP/GP format. ' w Resolution, above n. 91, para. 12. '45 See Kingsbury, above n. 42, 331. 1 4 See ~ 1996 Clarifications on the interpretation of the term 'project', above n. 94 (under the heading 'Eligibility and Access). See also IBRD Articles of Agreement, Art. III(4)(vii); IDA Articles of Agreement, Art. V(I) (b), above n. 12. '47 See Inspection Panel, liqbort and Recommendation on Kequest of Inspection concerning Lesotho: Lesotho Highlands Water Project (Loan No. $339-LSO), 23 July 1999.The Panel did however not recommend an inspection, in the absence of adirect link between any actions or omissions of the Bank and the harm claimed by the requesters. Management thereby departed from its prior position, which held that expropriation fell outside the scope of the Panel's mandate. See Inspection Panel, R e p s t for Inspection-Compensation for Expropriation and Extension of IDA Credits to Ethiopia, March 1995 (the request was not registered by the Panel on the basis that the requesters had not shown that the failure of the government to compensate them was caused by IDA'S continued lending to Ethiopia).

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Non-State Actors and International Law -

234

'THE ENVIRONMENTAL ACCOUNTABILITY OF

rather than a specific project.'49 In one request involving adjustment lending, the Panel made clear that the term 'project' as used in the Resolution means that adjustment operations fall under the scope of its mandate, although Bank Management disagreed.'s0 The Panel found the request eligible but did not recommend an inspection, thereby precluding discussion of the matter by the Board. There nevertheless appears to be a consensus amongst commentators that the term 'project' as used in the Resolution is understood in Bank practice to include programme or sectoral loans.'5' The Investigation Process

Once a request for inspection has been deemed prima facie eligible, the Panel is competent to consider its merits by conducting an investigation into the facts. Under the Resolution, the initiation of the investigation process is not a matter for the Panel itself to decide. It may only recommend an investigation: the decision-making power belongs to the Executive Directors upon receipt of the Panel's recommendation, and there is no specific time-limit for the Board's decision to be made.152 During the first five years of the Panel's existence, the Executive Directors seldom authorized investigations. Between 1994 and 1999, the Panel recommended six investigations, of which only two were authorized (limited in scope). As a result, the Board's competence to authorize investigations was perceived to undermine the mechanism's independence, effectiveness, and credibility.ls3 The Panel's former Chairman remarked that '[tlhe formation of 'alliances' among [borrowing countries] to block investigations has been effective and represents one of the most fundamental threats to the effectiveness of the inspection function7.'54 The scarcity of Panel investigations was also due to the practice developed by Management of proposing remedial action plans addressing the deficiencies of the project in question before the Board had taken a decision on a Panel recommendation, thereby averting an inspection. In these cases, the Board, instead of authorizing an

'49 See IBRD Articles of Agreement. Art III(4) (vii); IDA Articles of Agreement, Art V(1) (b), above n. 12. See Inspection Panel, Request for Inspection-Bangladesh: Jute Sector Adjustment Credit, Panel W m t and Recornm~ndation(INSP/@73), 2 0 March 1997. '5' See Forget, ' t e 'panel d'inspection' de la Banque Mondiale' [1gg6] Annuairefran~aisde Droit Inlernationalpp. 645,655; Shihata, above n. 95, pp. 37-41. '5? See Resolution, above n. 91, para. 19. See also 1996 Clarifications, abovc n. 94 (under the heading 'Role of the Board'). '53 See, e.g., Hunter (CIEL) and Udall (International Rivers Network), The W d d Bank's New Inspection Panel: Will it Increase the Bank's Accuuntability ? (CIEL Working Papers 1994). '54 Umada Quesada, above n. 93, p. 325.

Non-StateActors and International Law

355

T H E WORLD BANK T O NON-STATE ACTORS

235

inspection, adopted the action plan while giving the Panel a role in supervising its implementation. Although these action plans provided some relief to requesters, and allowed the Panel to have a role in monitoring, they were criticized by the Panel itself as well as outside commentators as n ~ n - ~ a r t i c ; ~ a taimed o r ~ , at avoiding kvestigations, and

undermining the body's independence from the Bank.Is5 The above mentioned trends were reversed as a consequence of the 1999 review. The Board agreed that it would authorize investigations recommended by the Panel without questioning the merits of the claim and without discussion except with respect to certain eligibility criteria,15~ thus 'further reduc[ing] any impediment to the authorization by the Board of investigations by the Panel through making an investigation the normal and automatic result of a Panel recommendation in favor of such investigation'.I57 The Board has, since the approval of the 1999 Clarifications, authorized all three investigations recommended by the ~ a n e l . 1The 5 ~ second review furthermore resulted in the prohibition of the submission of remedial action plans by Management during the eligibility phase;'59 it however also banned any involvement of the Panel in the follow-up of remedial m e a s u r e s . ~ ~ ~ Once an investigation has been authorized by the Board, the Kesolution determines that the Panel is to conduct the investigation of all relevant fdcts, allowing it to reach conclusions on whether the Bank has been in serious violation of its operational policies and procedures with res ect to the design, appraisal, and/or implementation of the project." The Resolution does not expressly provide for provisional measures pending the outcome of the investigation, even though such measures could potentially prevent the prospective continuation of the project work from making the alleged harm irreversible. Unusually, provisional measures ~ ~ conduct of an were adopted by the Board in the China ~ e ~ u e s tIn. ' the investigation, Panel members have access to Bank staff who may contribute information, and to all pertinent Bank records.1~3 They can also carry out field visits, subject to the consent of the borrowing state.164Public hearings

R

'55 See ibid., 324 ('[bly introducing these Action (or reaction) Plans, Management effectively preempts or delays . . . the Panel's further involvement'). ~5"ee 1999Clarifications, above n. 94, para. 9. '57 Schlemmer-Schulte,above n. 95, p. 246 (emphasis added). 'sR At the time of writing, the Panel's recommendations on the three subsequent requests (which concern the Chad Petroleum Developmat and Pipeline Project, the India Coal Sector Environmental and Social Mztzgatzon Project, and the Uganda Third and Fourth Power Pmject, respectively) are still pending. '59 See 1999Clarifications, above n. 94, para. 16. 1 6 0 See below n. 259 and related text. '" See Resolution, above n. 91, para. 22; 1999Clarifications, above n. gq, para. 13. See below n. 199 and related text. 163 See Resolution, above n. 91, para. 21. '4 Ibid., para. 21. Under para. 36 of the Operating Procedures, above n. 91,field visits can also take place for purposes of determining the eligibility of requests. See Inspection Panel, Investigation &port on Ecuador Mining Development and Enuironmental Control Technical Assistance Project (Loan Number365jEC), 23 February 2001.

3.56



in the project area may be conducted.@ Panel members can seek written or oral submissions from the requesting party, Bank staff, and other entities.166The Panel is also entitled to use 'any other reasonable methods the Inspector(s) consider appropriate to the specific investigation'.167 The Panel concludes its investigation with a report comprising 'findings'. If consensus cannot be reached, the Panel's report states the 'majority and minority views'.168Panel reports consist of a discussion of the relevant facts and steps taken to conduct the investigation, conclusions on the degree of compliance on the part of the Bank with relevant policies and procedures, and an appendix of supporting do~uments.'~9 Findings are not binding,'7O nor can they encompass recommendations on further action. The power to submit to the Board recommendations for remedial action belongs to Management, which must submit a report within six weeks from the receipt of the Panel's findinpr7' The final decision on the adoption of remedial action is taken by the Board itself, on the basis of both the Panel's and Management's report~.'7~

Transparen9 and Participatory Requirements The Resolution provides for certain requirements in terms of transparency and public participation during the Panel process. With respect to information disclosure, first, the Bank must make publicly available certain categories of documents arising during the Panel process. These documents include requests for inspection, Panel recommendations and reports on investigations, Management responses and reports, and Board decisions thereon.'73 Panel-related documents are, however, kept confidential until after they have been considered by the Board. The opinions of the General Counsel related to inspection matters are made publicly available 'promptly' after the Executive Directors have dealt with the issues involved, 'unless the Board decides otherwise in a specific case'.I74 The annual report furnished by the Panel See Operating Procedures, above n. 91, para. 4j(b). See ibid., para. 45(a) and (d). 167 Ibid., para. 45(g). '68 Resolution, above n. gr, para. 24. 169 See Operating Procedures, above n. 91,. para. 52. '7" The Panel has decision-makingpowers regarding procedural matters related to its work. It has adopted in this regard its Operating Procedures and Administrative Procedures. See Resolution, above n. 91, para. 24. '7' See ibid., para. 23. Management's report to the Board provided here must be distinguished from 'action plans' agreed between the borrower and the Bank, in consultation with the requesters, that seek to improve project implementation. See 1999Clarifications, above n. 94, para. 15. '72 See Resolution, above n. 91, para. 23. '73 See ibid., para. 25; 1996 Clarifications, above n. 94, (under the heading 'Outreach'). '74 See 1996 Clarifications, above n. 94, (under the heading 'Outreach'). 165

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237

to the Bank's President and the Executive Directors is also made publicly available.'75 More generally, the Resolution requires the Bank to make the Inspection Panel better known in borrowing c0untries.'7~ Provisions in the Resolution granting participatory rights to requesters

during the Panel procedure are limited.177 Requesters are notified of the Panel reports and Board decisions only at the same time that these documents are disclosed to the public.178Furthermore, the Resolution does not explicitly refer to any rights of complainants to receive and respond to communications between the Panel and other interested parties, nor to participate in the Panel proceedings after the submission of the request. While it mandates the Panel to consult with both the Bank and the borrower country before it issues its recommendation on inspection, and during the investigation itself, the Resolution makes no reference to consultation with the requester.I79 The Operating Procedures, on the other hand, allow the requester to provide the Panel with supplemental information that is relevant to evaluating the request.18~The 1999 Clarifications furthermore encourage the Panel to consult affected parties during on-site visits,18' and require that information provided to requesters must be in their language, to the extent possible.182The Panel has in practice consulted with affected individuals and local communities or groups before reaching its and Kenya conclusions, most recently in the china,183 ~cuador,'~4 Requests.185 The Resolution does not mention the existence of participatory rights for third parties to the procedure. The Panel's Operating Procedures do, however, enable external observers to submit amicus curiae briefs during the processing of requests, if they show that they have an interest in the results of the inspection.186This was the case, for instance, in the course '75

See Resolution, above n. 91, para. 26.

v6 See lggg Clarifications, above n. 94, para. 17. See also Operating Procedures, above n. gr, para. 57. '77 On the inadequacies of the rights of the requester in the procedure see Bradlow, above n. 85, PP. 584-5 and 591. See Resolution, above n. gr, paras. rg and 23, respectively. '79 See ibid., para. 21. See Operating Procedures, above n. 91, para. 47. la' See 1999 Clarifications, above n. 94, para. 12. Para. 16 also allows the Panel to submit to the Executive Directors a report on the adequacy of consultations with affected parties in the preparation of action plans. See ibid., para. 18. '*3 See below. "4 See Ecuador Request, above n. 164. I R 5 See Kaya Request, above n. 102. See Operating Procedures, above n. 91, Preamble. On the involvement of nongovernmental organizations in international litigation by means of the submission of amicus briefs, see generally Shelton, 'The Participation of Nongovernmental Organizations in International Judicial Proceedings' (1994)88 AJIL p. 611. For comparative purposes, it is noteworthy that the submission of amicus curiae briefs to the WTO adjudicating bodies has been very restrictive. See CIEL, 'A Court Without Friends?,' Press release of 22 November 2000; Marceau and Stilwell, 'Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating Bodies' (2001) 4 JIntl. Economic L p. 155.

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of the N I ' P C ~and ~ China Requests.188The Panel can also request parties, such as requesters, governmental officials, or NGO representatives, to attend meetings and submit written or oral submissions on specific issues.189Any member of the public may, without having to show a direct interest, provide the Panel with a brief written document containing information relevant to the investigation.'gOA further significant role for third parties relates to the participation of external observers in the periodic reviews of the Inspection Panel. During the 1999 review, the undertaking of an informal meeting between members of the Working Group established to conduct the review and some United States and United Kingdom NGO representatives marked the first time that a report submitted by a Board Committee to the Board was discussed with private parties outside the Bank before presentation to the Board.'gl Another unprecedented step was the setting up of an informal meeting between the full Board and several NGO representatives.'g2

Issues at Stake and Submission of Request The sixteenth request brought to the Inspection Panel was a landmark case, which usefully illustrates the mechanism's procedural and substantive features. It also raises fundamental questions regarding the interpretation and application of the Bank's safeguard policies, as well as compliance control. The main objective of the China Western Poverty Reduction Project was, according to the Bank, 'to reduce the incidence of absolute poverty in remote and inaccessible villages of Gansu and Qinghai Provinces and Inner Mongolia Autonomous Region'.'93 The Qnghai component (hereafter referred to as the 'Project'), which was the one challenged before the Panel, aimed to alleviate poverty through the voluntary resettlement of 57,775 poor farmers from the so-called 'move-out area' into an area covered by a new irrigation project in the Tibetan and Mongolian Autonomous Prefecture in Dulan County, inhabited by 4,000 people (the 'move-in' area).'g4 Within the move-in '9 Inspection Panel, &que.it for Inspection-India: NTPC Powm Gewation Project, Panel Report and Recornmadation (n\rSP/Rg7g), 25 July 1997. See Bissell, above n. 93, p. 743. lER See below 11. 207 and related text. '% See Operating Procedure above n. 91, para. 45 (a) and (d). 'go See ibid., paras. 5-1. '9' CIEL and the Bank Information Center (BIC) were two of the main organizations involved. ' g 2 See Bradlow, 'Precedent-Setting NGO Campaign Saves the World Bank's Inspection Panel', 6 Human Rights Bnef (1999). '93 World Bank, Prqect Appraisal Documatfor the Western Pwerty Reduction Project, I June 1999,Report No 189826HA, p. 3. '94 See ibid., World Bank Approues China Western Pouovog Reduction Project, Press Release, nqJune rggg.

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area, the Project would renovate an existing eight metre dam, and construct a new forty metre one; it also involved the construction of two canals to supply water for irrigation. The Bank was to finance the equivalent of US$160 million of the total US$311 million for the project,

of which US340 million were intended for the Qinghai component.

The Project clearly raised issues of the assessment of the consequences of resettlement, the impacts upon the lives and culture of indigenous peoples and minorities, ecological damage resulting from resettlement and major agricultural and construction programmes, as well as the importance of effective transparency and public participation. The Bank was bound by certain obligations under its internal policies and procedures to ensure that these factors were adequately taken into consideration during project preparation and appraisal, to provide China with the means to do so during project implementation, and to supervise the country's compliance with the terms of the loan agreement. A counter-balancing" factor was the Bank's will to limit its mandate in terms of non-interference in domestic political affairs, particularly with regard to human rights issues.'95 Mounting public criticism of the Qinghai Project arose in 1999, spurred by Tibet support groups, as well as human rights and environmental organizations. Despite proposals for improvement by Bank Management, a request for inspection was submitted on 18June 1999 to the Inspection Panel by the International Campaign for Tibet (ICT), a US-based nongovernmental organization acting on behalf of affected people living in the prqject area.'g6 The requesters claimed that the implementation of the Project would adversely affect the lives and livelihoods of Tibetan and Mongolian ethnic peoples, and cause irreparable environmental damage. Moreover, they alleged that it would cause a serious risk of escalation of ethnic tension and resource conflicts in the area. The request argued that the alleged harm was the result of actions and omissions in the preparation and appraisal of the project by Bank staff, in violation of several policies and procedures, including those on information disclosure, environmental assessment, indigenous peoples, involuntary resettlement, agricultural pest management, and safety of dams.Ig7 The requesters affirmed that they had repeatedly raised their concerns with Bank Management. Management's response1g8to the request argued that the Project was in compliance with all relevant Bank policies, save for those on information disclosure. Management also pointed out that a number of improvements had been made to the '95 See IBRD Articles of Agreement, above n. 12, Arts III(5) (b) and N ( l o ) ,discussed above at n. 16. '@See International Campaign for Tibet (ICT), Request for Inspection: China W e s t a Poverty 18)June 1999,INSP/Rgy6. Reduction Project (Credit No32550 CHA and Loan No ~ ~ o I - C H A , '97 On these documents, see above nn. 46-53 and related text. 'g8 See World Bank, Managemnl Response lo the &quest for Impection Sutnnitled to the Inspection Panel: China Western Pormty Reductzon Project (Credit No.72550 CHA and Loan No 4501-CHA), 19July 1999.

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Project since public concerns had been raised. The Bank's Board of Executive Directors decided on 24 June 1999 to proceed with the financing of the Project notwithstanding the request, but applied what amounted to provisional measures by making its decision conditional upon the fact that no work was to be done and no funds disbursed for the Qinghai component pending the Board's decision on the results of any review by the Panel.'99

Jurisdictional Aspects and Investigation Process On the basis of the request for inspection and Management's response thereto, the Panel first addressed the threshold issue of the eligibility of the complaint.200For the first time, a request involved the representation of the project-affected people by an international non-governmental organization, the ICT, on the grounds that no appropriate local representation was available. ICT's representational authority, which was based on the organization's 'long-standing involvement in the project area and its mandate to advocate on behalf of the interests of the Tibetan people', was endorsed by the Board.2o1Having verified the eligibility of the request, the Panel recommended the undertaking of an investigation, stating that the request and Management's response 'contain a wide range of conflicting assertions and interpretations about the issues, the underlying assumptions, the facts, compliance and harm'.202 On g September 1999, in accordance with the Panel's conclusions, the Board authorized an investigati0n.~O3The authorization was for the first time based not directly on the Panel's recommendation, but on the Executive Directors' own power to mandate the body to conduct an During what was its first fully-fledged investigation, the Panel resorted to external experts for assistance and advi~e,~O5 as well as to a set of interpreters from outside China. The investigation involved the conduct of interviews of Bank staff, consultants, and outside experts in See Press Release, above n. 194. See Inspection Panel, Report and Recommendation on Request for Aspection China: W e s t a Poverty Reduction Prgject (Credit No3255-CHA and Loan No $501-CHA) (Panel Report on Eligibility), 18 August '999. Ibid., Inuestzgatzon Report-China: Wertern Poverty Reduction Project (Credit No. 32%-CHA and I,oan No. 4501-CHA) (Panel Investigation Report), 28 April 2000, Annex B I . International Campaign for Tibet Represenlational Authority. Panel Report on Eligibility, above n. 200, para. 28. See also ibid., para. 30. See World Bank, Board wants Panel to investigate whether the Bank has observed its policies and procedures in the preparation of the China Western Poverty Reduction Project, Press Release, 17 September '999. 204 See Resolution, above n. gr, para. In. 205 See Panel Investigation Report, above n. 201, para. rg. The team of senior consultants was comprised of experts in a range of subjects such as the environment, anthropology, the economy, and development. '99

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241

Washington, DC, as well as the examination of available Bank documentation on the Several non-governmental organizations were included in this process by means of consultations with the Panel, as well as the receipt of amicus curiae briefs.1°7 The investigation also consisted of a three-week field visit by Panellists and a team of consultants in the Qinghai Province to carry out interviews of Chinese officials as well as project-affected people and local The Panel noted that such field visits 'were extremely important for assessing formal and substantive compliance with Bank policies and procedures'

Panel Investigation Report and Findings The Panel issued an investigation report detailing its Overall, the report identified serious generic problems in the interpretation and application by Bank staff of safeguard policies in the course of the project-cycle. Indeed, the Panel revealed an 'unusually and disturbingly wide range of divergent, and even opposing, views among staff on how the operational policies and procedures should be applied' that raised, in its opinion, 'serious questions about the ability of Management to apply them with any reasonable degree of c~nsistency'.~" The Panel noted that safeguard policies could not be taken to authorize 'a level of "interpretation" and "flexibility" that would permit those who must follow these directives to simply override the portions of the directives that are clearly binding'.2L2It also remarked that precedents in the borrower country, as well as political and social conditions therein, should not serve to influence the application of the requirements found in policies and proced~res.~'3 The investigation report also focused on the legal issues surrounding the Bank's alleged violations of specific policies and procedures. The Panel concluded that there had been non-compliance on several grounds, including with respect to the policies on environmental conservation of natural habitats and endangered The Panel also identified violations specie~,~'5 and pest 20%e ibid. 207 See Panel Report on Eligibility, above n. zoo, Annexes B4-6. See World Bank, Panel to Vkil Qinghai in October, Press Release, Inspection Panel Returnsfrom China, Press Release, 28 October 1999. 209 Panel Investigation Report, above n. 2 0 1 , para. 23. "" See Panel Investigation Report, above n. 201. 2" Ibid., para. 25. Ibid., para. 37. 2'3 Ibid., para. 43. 2'4 See ibid., paras. 81 and 237. 2'5 See ibid., para. 254. 2 ' G See ibid., para. 214.

21

September 1999; ibid.,

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of the policies on indigenous peoples and involuntarily resettled pers0ns.~I7Finally, it found that the Bank had not complied with the applicable requirements on transparency and fublic participation, although it had made some progress in this area.21 In accordance with the Resolution, the investigation report was not binding, nor did it make any recommendations on remedial action. Certain recommendations for further action were elaborated in the report by Management that followed the submission of the Panel's findings to the B0ard.~'9Management's report also comprised annexes providing specifications on the relevant safeguard policies and outlining the issues of broader implications identified by the Panel. According to the report, 'both ODs and OPs/BPs provide general operational guidelines intended to apply in different situations within the limits of the flexibility provided in the directives. Many of the Panel's findings appear, however, to be based on an application of elements of each policy as legally binding rules, allowing for little or no flexibility or room for judgement'.220 Management also criticised the Panel for its 'rigorous definition of compliance'."' While the Panel's investigation report led to the Bank's commitment to certain remedial measures, its findings that the organization was in violation of seven out of ten of its most important social and environmental policies in the design and appraisal of the Qinghai Project heightened public pressure for the cancellation of the Project or of the Bank's financial involvement in it.222AS a consequence, the Board of Executive Directors, in a highly unusual move, rejected Management's support of the Project and recommendations. The Chinese authorities subsequently announced that they were withdrawing the Project from consideration and intended to use their own resources to implement it.223

See ibid., paras. 280, 293, 340, and 408. See ibid., para. 420-22. See IBRD/IDA, Managemmt w o r t and Recomm~ndation in Response to the Inspection Panel Inuestigation Repurt-China: Western Poverty Reduction Project Qinghai Component (Credit No 329-CHA; para. 9. Loan No 4501-CHA) (Management Report), 19June 2000, INSP/RZOOL+~/I, 220 Ibid., para. 20. See also the covering letter to the Report, where the Bank's President, James Wolfensohn, emphasized that the efforts pursued by Managemenl in response to the Panel's findings 'are pushing us into a literal and mechanistic application of the OPs and ODs that was never intended when they were written'. 2" Ibid., Annex, Background Paper on the Management Report and Recommendation tn Response to the Inspection Panel Investigation Report, para. r I. 2 2 2 See BIC, Summary of events leading to the cancellation of the China Western Poverty Reduction Project, available at URL . 223 See World Bank, China to Impkment Qznghai Component of the China Western Poverty Reduction Project with its Own Resources, Press Release, 7 July 2000; ibid., Chinese Government's Statmmt on the Inspection Panel Investigation Report for the China: We~ternPoverty Reduction Project (Qnghai Component) Press Release, 6 July 2000.

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Jurisdictional Issues

Extent of Standing As seen above, one of the Inspection Panel's innovative characteristics is that standing is granted to individuals and non-governmental organizations adversely affected by Bank-funded projects. The resulting extension of accountability of the World Bank to non-state entities is of particular importance where the activities of the organization have the potential to result in environmental harm. Not only are individuals often the first victims of ecological damage, but actors such as nongovernmental organizations may be more likely to represent ~4 environmental interests (especially global ones) than S t a t e ~ . ~The Resolution permits 'affected parties' to submit a request. The question is whether requests alleging infringements not of the requesters' own rights or interests but rather those of the public at large, or harm to the environment per se, are admissible even in the absence of potential damage to the reque~ters.~~5 The Resolution appears on its face to reject as inadmissible requests in ~ ~ so by requiring the existence of the nature of an actio p o p ~ l a r i sIt. ~does 22* Concurring see Grossman and Bradlow, 'Are We Being Propelled Towards a PeopleCentered Transnational Legal Order?' (1993) g Amdican UJ Intl. I. & Polzcy I, p. 22. See also above n. 11 and related text. On the growing role of non-state actors in the enforcement of international environmental obligations, see, e.g., Boisson de Chazournes, 'La mise en oeuvre du droit international dans le domaine de la protection de I'environnement: Enjeux et dCfis' (1995) gg Revue ginhale de droit inlmatzonalpublicpp. 37,68-p; French, 'The Role of Non-State Actors' in Werksman, above n. 24, p. 251; O'Connell, 'Enforcing the New International Law of the Environment' (1992) 35 (;errnun Ybk. Intl. L pp. 293, 311-13. 225 O n the recognition of public interests of the international community whose protection constitutes an obligation of individual States to the international community as a whole, see IC], h t h West Afnra Case.%(Ethzopiav. South Afnm, Lzbyn v. South Afica; ICJ Reports, 1950,p. 148; ibid., Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spazn) ICJ Reporls, 1970, 3, paras. 33-4; ibid., Applicatia of the Convention on the Prtmentzon and Punishmenl of the Crime of Genocide. Bosnia and Herzegovina v. Yugoslavia (Prelimznary Objections) (ICJ Rtports, 1996, 625), para. 6. See also ILC, Tttles and texts of the drafl artzcles on Responsibility ofstates for internationally wrongful acts adopted by thp Drafling Committee rm second readzng (26 July 2001; A/CN.4/L.602/Revr), Part Two, Chapter I11 and Part Three, Chapter I (in particular Arts. 42 and 48) (addressing state responsibility for serious breaches of peremptory norms and erga omnes obligations). On this topic, see ILC, Crawford, Special Rapporteur, Third report on state responsibility (10March 2000; A/CN.q/507), paras. 106-117; ibid., Fourth report on state responsibility (31 March 2000; A/CN.4/ j17), para. 49. See also Crawford 'The Standing of States: A Critique of Article 40 of the ILC's Draft Articles on State Responsibility' in Andenas and Fairgrieve (cds.), Liber Amzcmm i n Honour ofLord Slynn oJHadlq. Volume 11 (2000) p. 23. For insights into the representation of public interests in cases involving environmental harm see further Fitzmaurice, 'International Environmental Law as a Special Field' (1994) 25 NetherlandsJInl'l. L p. 181, 223-4; Sands, 'Access to Environmental Justice in the European Community: Principles, Practice and Pro osals (1994) 3 ReV. EC Intl. Envtl. L ( 1 9 9 4 ) ~206. . z2gThis is also the opinion of the Bank's former General Counsel. See Shihata , above n. 95, P 569.

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a personal link between the requester and the affected rights or interests ('its' rights or interests), as well as a territorial link between the requester and the borrowing country, and by limiting foreign representation of a teleological requesters to exceptional c a s e ~ . ~ Nevertheless, ~7 interpretation of the Resolution, allowing the submission of requests based on public interests as well as private interests of requesters, can be defended.228Such an interpretation understands the notion of 'interest' in a progressive manner that encompasses environmental interests, taking into account their collective nature. This approach is reflected, for example, in the Aarhus Convention, which asserts the right for nongovernmental organizations to act in respect of public environmental interests. Rather than using the terms 'private' or 'public' interests, the Convention refers to the 'public concerned', which is defined as 'the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, nongovernmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an i n t e r e ~ t ' . ~In ~ gdomestic legal systems, mechanisms have been instituted that allow for environmental organizations to initiate administrative or judicial proceedings on behalf of public environmental interests, for instance by undertaking class actions or instituting public law pro~eedings.~3O A broader interpretation of the Resolution, and especially of the notion of 'interest', is buttressed by the fact that the Panel's jurisdiction permits inquiries into Bank operational policies and procedures, several of which, such as those on the protection of natural sites and endangered species, or the global commons, have the object of protecting the environment as such. It can also be inferred from the Bank's commitment to pursue its activities in accordance with instruments of international environmental law that embody similar conservation g0als.~3' In practice, better observance of these standards in loan

227 According to Shihata, the conditions regarding the territorial link and foreign representations were intended by the Board to avoid the submission of requests by external (Western) nongovernmental organizations acting on their own. See ibid., pp. 61 and 65. Another conduit for invoking public interests before the Panel is through the submission of a request by an Executive Director, as the Executive Directors do not have to show that their rights or interests have been affected. In this eventuality, environmental nongovernmental organizations could lobby the Executive Director of their country to act before the Panel. To date, this however has not been the case. 229 Aarhus Convention, above n. 71, Art 2(5) (emphasis added). Proposing a broader understanding of the meaning of 'interests' and 'being affected', see Ebbesson, above n. 66. 230 On the limitations put on the locus standi of individuals and nongovernmental organizations upholding the protection of the environment in the case law of the European Court of Justice (ECJ), see Case G321/g5 P, Grmpeace and Othersv. Commission [1gg8] ECR 1-1651.See however Case 294/83, Parti icologisk 'La Verts'v. Parliament [1g86] ECR 1339. 23' See above n. 59 and related text.

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development operations will be secured only if the Bank may be challenged before the Panel by requesters acting on the basis of an extensive conception of 'interest'. While a case based exclusively on the allegation of public interests has not yet arisen, the Panel has found

eligible requests filed not only on behalf of local communities affected by a project, but also with regard to harm to biodiversity and the environment caused by a violation of Bank policy, even in the absence of damage to people.*3*

Breadth of the Applicable Law The Panel's subject-matter jurisdiction is, according to the Resolution, strictly limited to reviewing Bank compliance with internal Bank standards.*33This raises two concerns-on the one hand, the normative force of the safeguard policies from an internal point of view and, on the other, the role of international environmental principles in the interpretation and application of safeguard policies. On the first point, the China Request provides guidance on the legal nature of Bank safeguard policies. It reveals a tension between the Bank's view that these documents are flexible guidelines applicable with a certain margin of discretion, and the Panel's reasoning that they set out quasi-legal norms that require uniform application. An emphasis on the greater normative force of safeguard policies can be based on several arguments. First, the purpose of the process of converting policies into the OP/BP/GP format examined above was to distinguish mandatory policies from good practices. This indicates that, despite the need for a certain flexibility to accommodate particular circumstances, the application of environmental standards is not discretionary, and those which are contained in binding documents should be treated as such by staff. Secondly, as the World Bank, by instituting the Panel, has granted certain rights to affected parties to raise the question of the organization's compliance, these parties could benefit from a degree of certainty about the content of safeguard policies. If these instruments are drafted, interpreted, and applied by the Bank in as consistent and precise a manner as possible, this will enhance the procedural rights of third parties to submit complaints. With regard to the second point, the Bank has stated that it aims to conduct its operations in accordance with multilaterally-agreed environmental standards. Do such standards intervene to any extent in Panel proceeding~?~34 While the Resolution clearly determines that a 232 See Inspection Panel, Request for Inspection-Argentina/Paraguay: Yacyreta Hydroelectric Project, Pam1 Recmnmdation (INSP/RgG-z), 26 December 1996. Presumably, the environmental interests still have to be in-although not confined to-the State concerned. 233 See above n. 143 and related text. 234 In keeping with the scope of the Panel's mandate, which is limited to Bank noncompliance, the question here is not about overseeing the compliance of borrower States with their international obligations.

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request before the Panel could not allege Bank non-compliance with norms of international law, it does not specify that the Panel cannot consider information other than that included in requests. In view of the Bank's environmental and sustainable development commitments, internal policies and procedures must be understood as aiming to uphold standards embodied in at least some international environmental in~truments.~35 Furthermore, certain policies and procedures reflect general principles of international environmental law, including, for instance, the preventive and precautionary principles,236the principle of prior n0tification,~37and the prohibition of environmental harm beyond national juri~diction.~3~ It can be argued that the Panel, like the requester, should use environmental standards found in international customary and treaty law, general principles of international law, and non-binding instruments to fill potential gaps in Bank policies and procedures, and to interpret the rights and responsibilities arising out of these d0cuments.~39This reflects the fact that, while remaining within the confines of the Resolution, the interpretation of safeguard policies and procedures can take place within the wider normative framework in which the Bank operates on the international level."4O Procedural Aspects Degree of Independence In order to be credible, the Inspection Panel must be sufficiently independent from the organization that created it. The body 'is an independent forum' and ' [r]ecommendations and findings of the Panel shall be strictly impartial: only facts relevant to the Request or See above n. 60 and related text. See, e.g., OP 4.04, above n. 49, para. I ('The Bank supports, and expects borrowers to apply, a precautionary approach to natural resource management to ensure opportunities for environmentally sustainable development'). 237 See OP 7-50,above n. 51, para. 4 ('the Bank requires the beneficiary state . . . formally to notify the other riparians of the proposed project'). 238 See World Bank, Operational Manual .%atemat, Environmental Aspects of Bank Wmk (OMS 2.36) (May 1984) para. g(f) ('[The World Bank] will not finance projects that could significantly harm the environment or a neighboring country without the consent of that country'). '39 Concurring see Bradlow and Schlemmer-Schulte,above n. 117, p. 405 (stating that over time 'the Panel, like the complainant, may use jus cogens and customary international law, and general principles of international law to interpret the rights and responsibilities of international law') (emphasis in text); Kingsbury, above n. 42, p. 331 (arguing that that international law standards 'might properly be invoked as part of the corpus of norms and practice that may guide thc Panel in making useful recommendations'). The background of Panellists can of course play a role in the degree of emphasis placed upon international law. For an interesting comparison see the references to international environmental law in recent reports of the WTO Appellate Body, in particular in the ShrimpTurtk Case, above n. 21. Interesting insights can be gained in this regard from the reasoning of the 1992 Morse Commission, which, to evaluate the Bank's compliance in the context of the Sardar Sa~uvarWater Project, took a broad approach by using international standards, namely the International Labour Organization (ILO) Convention No 107, in addition to the Bank's own policies and loan agreements. See Morse Commission Report, above n. 87, p. 357. 2~'

236

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investigation under consideration shall be relevant to their de~isions'.'4~ The Resolution conceives the Panel as a functionally independent body from the Bank that is nevertheless assisted by the organization's administrative facilities and is located at the organization's headquarters. Wlilt: it lays down certa;n safeguards for the Panel's independence, other arrangements aim to preserve close links between the Panel and the Bank. The criteria applicable to the nomination and employment of Panellists represent a first test for an assessment of i n d e p e n d e n ~ e . ~The 4~ Panel's independence is served, for instance, by requirements of the Panellists' autonomy from the Bank's managerial structure, and prohibition of re-employment by the World Bank Group at the end of their term. Panellists are proscribed from participating in hearings or investigations of requests related to matters in which they have a personal interest or significant involvement.Y3 In this case, the other Panel members constitute the Panel until a new member is appointed.'# Certain requirements in terms of the independence of the Panel Secretariat are also provided for.'45 On the other hand, Panellists are Bank employees with an exclusive loyalty to the organization. Pressures on Panel members may arise from the Executive Directors' power to decide on their remuneration and removal from office. Panel proceedings provide additional insights in terms of suggests independence. That the Panel is a mechanism of last re~ourse'4~ a strong presumption towards the resolution of disputes within the Bank's managerial structure rather than by means of a Panel investigation. As mentioned above, this presumption was evidenced by the Board's (rather than the Panel's) competence to authorise an investigation into the merits of a r e q ~ e s t , ~asq well as by the practice of Management prematurely to submit remedial action plans leading to the avoidance of investigation^.^‘@ The Panel's independence, in terms of its competence to undertake investigations when it judges necessary, appears to have been strengthened after the adoption of the 1999 Clarifications. A balance should therefore be sought between the preservation of sufficient independence for Panellists and the Bank's will to maintain a certain level of control over the procedure. The conditions for the nomination and employment of Panellists have apparently not generated any major threats to the independence of the mechanism. Current Panel Administrative Procedures, above n. 91, paras. lo and 1 2 , respectively. See above nn. 105-114 and related text. *43 See Resolution, above n. 91, para. 6. 4' -1 See Administrative Procedures, above n. gr, para. 16. See also ibid., paras. 26-8 '45 See ibid., para. 34. 24b See above n. 117, and related text. 247 See above n. 153, and related text. See above n. 155, and related text. '4'

242

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members have no prior links to the World Bank, and only one former Panellist had been previously employed by the Bank. Neither has the Panel been shy of finding against the Bank during investigations, and of expressing its disagreement with the Board and Management on issues related to both specific requests and conceptual issues. The independence of the mechanism has been stressed by its former Chairman, according to which the Panel 'has, despite tremendous pressure, functioned as an independent structure, as it was intended, consistently providing the Board with an independent view of projects with potentially harmful impacts on local populations and the envir0nment'.~49 Levels of Transparency and Participation Rigorous requirements in terms of transparency and the participation of requesters, as well as external observers, ensure a fair, credible, and effective pr0cess.~5OThe timely disclosure of relevant information to both the requester and the public is necessary during Panel proceedings to ensure their adequate participation in the procedure. It also enables the dissemination of Panel findings on the types of deficiencies found in particular projects and on pervasive problems in the Bank project cycle. In all these cases, it is important that information be made widely accessible; this entails, for instance, that Panel documents are translated into languages used in borrowing countries by actual or potential requesters. While demands for greater information disclosure are balanced against confidentiality considerations, in particular as they greater weight should be given to the concern Board pro~eedings,~5' timely disclosure of environmental information at all stages of Panel proceedings, and the grounds for refusal applied restrictively. Adequate participation of requesters in the Panel procedure should also be ensured, in order to provide all parties with equivalent opportunities to present their case. This implies that requesters should be notified of all stages of the procedure, and have access to all relevant documents at the time of their issue. The identity of requesters should be confidential if they so d e ~ i r e . ~The 5 ~ participation and input of third '49

Umaria Quesada, above n. 93, p. 323.

2su For valuable insights into the contribution made by the creation of the Inspection Panel to

greater transparency and public participation in international processes see Boisson de Chazournes, 'Public Participation in Decision-Making: The World Bank Inspection Panel' in Brown Weiss, Rigo Sureda, and Boisson de Chazournes (eds.), The World Bank, InternationalFinann'alInstitultons, and the Developmat oflnternational Law (1999) p. 84. 25' See World Bank, Rules @Procedures of the Executive Directors of IBRD and IDA, Section 7 (requiring the preservation of the integrity of the deliberative process of the Board proceedings and protection of Executive Directors against undue pressure from other parties). See also above n. 79 and related text. 252 See Operating Procedures, above n. gr, para. 18 (b). Requests cannot however be anonymous. See ibid., para. 22(e).


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parties in the procedure ensures the consideration of additional and diverse information in the evaluation of requests, and provides opportunities for monitoring both the Panel's and the Bank's actions. It can be strengthened through their submission of amicus curiae briefs or other documents, and attendance during the periodic reviews of the Panel. Another venue for external commentators to participate in the Panel's work could conceivably be through the Annual Meetings held by the Panel members, to which the Panel 'may invite any other persons' than Panel members, the Executive Secretary, and Bank ~taff.~53 Consequences

The consequences of an investigation undertaken by the Inspection Panel relate to the types of remedies and redress that are potentially available to those adversely affected by the acts or omissions of the World Bank, as well as to the potential for changes in the Bank's development operations in terms of environmental protection. As mentioned, the Panel cannot take decisions or even recommendations on further action stemming from investigation reports.'54 This may represent a drawback to the mechanism's ability to lead to remedial measures and/or improvements to project and policy im~lernentation.~55 Nevertheless, Panel reports represent a non-negligible constraint on the Board of Executive Directors in the event of findings of Bank violations of safeguard policies and procedures. Consequences of the Panel process can be identified at two levels. On the one hand, the direct outcome of the particular project that is the focus of the request can be affected by means of several types of It should be underscored that since mitigatory or remedial mea~ures.'5~ the 1999 Clarifications, the Panel no longer has functions in the supervision of the implementation of such measures, despite the fact that such a role could be valuable to further monitor Bank complian~e.~57 Mitigatory or remedial measures may first consist in cessation of the Bank's funding of the project, as was the case in the Arun 111258and China Requests.*59 Bank withdrawal does not, however, necessarily imply See Administrative Procedures, above n. 9 1 ,paras. r and 5(b). See above nn. 170-172 and related text. 255 See, e.g., Bradlow, above n. 85, p. 610 (stating that the Panel should be given the competence to make general recommendations on the Bank's operational policies). 256 The Panel does however not give a right to remedial measures. '57 See above n. 159 and related text. lsn The continuation of the Planned Arun III Hydroelectric Project was unilaterally cancelled by the Bank as a result of the Panel's findings of non-compliance.See Inspection Panel, &quest for Inspection: Panel Inuestigatton Report-Nepal Arun I11 Proposed Hydroelectric Project (INSP/SecMg53), 22 June 1995; World Bank, Nepal Arun III Proposed Hydroelectric Project-Management Response lo the Inspection Panel's Investigation Repurl (INSP/SecMg,5-5),5 August 1995. %9 See above n. 223 and related text. 33

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cessation of the project itself; in both of these cases, the borrowing countries (Nepal and China respectively) are planning to continue , ~ ~ ~ without benefiting from Bank support. project i r n p l e r n e n t a t i ~ nalbeit In such cases, it is debatable whether environmental interests are indeed best being served. This point highlights that the Panel process does not resolve the problems surrounding state compliance, nor the accountability of borrower countries for their integration of environmental considerations in the development process,261an issue not addressed in the scope of the present article. Secondly, measures aimed at the Bank's return to compliance can be adopted. For instance, following the recent Ecuador Request, Management has agreed to greater NGO participation and consultation in the implementation of actions taken under the project in question.262Thirdly, it is conceivable that Panel findings of noncompliance may impact upon the availability of remedies in other disputeresolution procedures, especially in the context of' claims brought against the Bank in national courts, although such findings do not preempt any An important decision on liability under the applicable domestic domestic procedural bar to claims against the Bank remains, however, the organization's immunity from jurisdiction. On the other hand, a second category of consequences can be seen as broader in scope and less project-specific. Panel reports can influence the development of the applicable law, by providing significant guidelines on the interpretation and implementation of, and complkance with, Bank environmental safeguard policies and procedures. Indeed, according to the Bank's Operations Evaluation Department (OED), '[rlecent Inspection Panel reports have highlighted a significant problem with the implementation of [environmental assessment] structure in the Bank due to perceived ambiguities in the scope, intent, and requirements of the policies among staff responsible for the implementation'.264 Moreover, the establishment of the Panel has enhanced transparency in Bank operations, as in order for the mechanism to operate parties external to the Bank must be made aware of, and have unfettered access to, relevant Bank documents. As seen in the context of the China Request, Panel reports also disclose the environmental and social consequences of project deficiencies stemming *" No final decision has yet been made with respect to the continuation of the Arun IIIHydroelectric Proect, although proposals by private investors have been made. '6' Borrower States are legally bound by the terms of the loan or credit agreement entered into with the Bank. 2fi2 See World Bank, Management Report and Kecommendation in Response lo the Inspection Panel Inuestigalion Repmt--Ecuador Deuelopml and Enuironmental Control Technical Assistance Project (Loan Nu 3655-EC), 23 February soor. 263 On the pending law suits filed in February 1997 in Argentinan courts against several defendants including the World Bank for damages suffered as a result of the Yacyreta Hydroelectric Project, which was also the object of a 1996 request before the Panel, see Shihata, above n. 95, pp. 122-3. '4 OED Environmental Review, above n. 86, para. 63.

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from Bank non-compliance with internal standards, as well as generic problems in the project cycle of financed projectxZ6f) In terms of public participation in Bank operations, the Panel fosters external input by individuals, nongovernmental organizations, and local communities. Beyond the internal level, Panel reports can encourage legal developments in areas of international law, such as institutional, environmental, and human rights law.266 This review of the possible consequences of the Panel process reveals an important feature of the mechanism, that is, its emphasis on prevention. That environmental harm should be prevented rather than repaired o r compensated ex post indeed represents a mantra of environmental law, because such harm is often irreversible and/or . ~ ~ 7has led, in difficult to assess in terms of monetary ~ o m ~ e n s a t i o nThis the field of state compliance with environmental obligations, to an emphasis on monitoring, reporting, and non-compliance procedures, which favour avoidance of environmental damage over reparation or compensation.z68 The Inspection Panel mechanism responds to the principle of prevention in two ways. In project-specific terms, it allows for requests to be brought prior to the commission of environmental harm, as they can concern projects in the preparation and appraisal stages of ~g can thus allege potential harm.270 In a the project c y ~ l e . ~Requesters more general perspective, the Panel process may contribute to the prevention of future harm, by laying the ground for greater compliance of the Bank with environmental policies and procedures in loan development operations, through both positive measures (for instance, the clarification of policies and procedures) and deterrence.

This article has examined substantive and procedural features of the World Bank Inspection Panel, in order to explore some of the shifts that 265 The Panel has generally identified two systemic issues in the Bank's operations; the first is the imbalance that develops in projects that have infrastructure as well as social and environmental components, and the second the unequal status that social and environmental components seem to have vis-a-vis other policies in the preparation and implementation of projects. See UmaM Quesada, above n. 93, p. 326. 266 See Bradlow and Schlemmer-Schulte,above n. 127, p p 402-14. 267 See Boyle, 'Remedying Harm to International Common Spaces and Resources: Compensation and Other Approaches' in Wetterstein (ed.), Harm to the Environment: The Right to Compensation and Arsessment of Damages (1997) p. 83. 268 See, e.g., Bothe, above n. 67, pp. 21-2; Fitzmaurice and Redgwell, 'Environmental NonCompliance Procedures and International Law' (2001) 31 Netherlands Ybk. Intl. I, 35; Koskenniemi 'Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol' (1992) 3 Ybk. Intl. E n d . I, p. 123; Sachariew, above n. 67. 2" See above n. 121 and related text. 270 See above n. 134and related text.

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are occurring towards greater accountability of international financial organizations. The creation of the Panel can be seen as one response to the obstacles to the application of traditional responsibility and/or liability principles to organizations, especially when development institutions are concerned.l7' The Panel is not a court of law where the responsibility or liability of the World Bank can be inv0ked.~7'It does not have binding decision-making powers and does not reach an enforceable judgment. The Panel fits into a more flexible concept of compliance and dispute settlement, which aims to monitor and enhance compliance with certain environmental standards, while establishing a soft framework to address events of non-compliance. A parallel can be made with soft compliance procedures in inter-state relations, which aim to remedy the inadequacies of traditional enforcement mechanisms when international environmental obligations are concerned.l73 As a corollary to its more informal and flexible nature, however, the Panel is a mechanism lacking teeth, for instance because of its relative lack of independence and inability to adopt remedial action. Competing conceptions of the scope of its functions have been promoted, in turn by the text of the Resolution, the practice of the Panel, the decisions of the Bank's Board of Executive Directors, and interpretations on the part of external observers. The Panel may be viewed as a body with either limited investigatory and/or mediatory competence, undertaken by means of relatively flexible procedures, or as having functions of a quasi-judicial nature accomplished through a formalized process. The Board has sought a strictly non-judicial mechanism. During its first five years, the Panel's competencies were restricted to advisory and fact-finding ones, as it was in the majority of cases not authorized to undertake investigations into the merits of requests. In this sense, the Panel resembled the IFC/MIGA's CAO, which, in its Ombudsman role, is a conciliatory mechanism aimed primarily at securing an amicable arrangement between parties in di~pute.~74 On the other hand, NGOs and external commentators, as well as some sections of Bank staff, have leaned towards the 'judicialization' of the Panel. The Resolution indeed grants the Panel quasi-judicial functions during the eligibility and investigation phases, such as to determine its jurisdiction, examine the merits of a request by applying legal norms to facts, and arrive at a determination on the issue of non-compliance after an inquiry conducted in accordance with legal rules and on the basis of principles of fairness and equity. The adoption of the 1999 Clarifications See the literature cited above in n. 5 and related text. See also Schlemmer-Schulte. 'The World Bank, its Operations, and its Inspection Panel' (1999) 3 Recht der intaationalen Wirtschaftpp. 175, 179. 273 See above n. 271 and related text. 2 i 4 See above n. 98 and related text. 27' 272


373

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have marked a trend towards emphasizing the quasi-judicial characteristics of the Panel with regard to the body's defacto competence to decide on the initiation of investigations. The China Reguest represents the first full investigation undertaken thereafter, which allowed the Panel to exercise its full competences as determined by the Resolution. While the Inspection Panel should remain a flexible and pragmatic dispute resolution mechanism, strengthening its quasi-judicial functions has the potential to give the mechanism greater teeth. From the point of view of environmental conservation, long-term shifts in the development loan process pursued by international organizations such as the World Bank can indeed be furthered by the establishment of more formal supervisory processes, allowing an independent body such as the Panel to intervene between the organization and the complainant, with the goal of ascertaining the law and assessing compliance with existing obligations. The mechanism's impacts in this regard can be reinforced by, inter alia, the Board continuing to authorize investigations when recommended by the Panel, the Panel benefiting from greater leeway in the conduct of investigations, all parties in the procedure being granted equal procedural rights, and by the Bank's consistent implementation of adequate remedial and mitigatory measures on the basis of Panel findings. In conclusion, the development of accountability mechanisms such as the Panel suggests that States can no longer evade certain fundamental principles of public policy behind the 'veil' of international organizations, because the latter's collective decisions may be subjected to accountability standards. That the World Bank, amongst other organizations, has committed itself to pursue its operations in accordance with multilateral environmental norms evidences the progressive externalization of the activities of international organizations. Originally conceived as operating exclusively en vase clos, they are now expected to take full account of developments in international law and policy. In a comprehensive and integrated international legal order, international financial organizations have become the addressees of normative and policy standards stemming from sustainable development. Participatory requirements also dictate that non-state actors-whether individuals, interest groups, nongovernmental organizations, or local communities-should be legally protected against the adverse consequences that can result from the loan development operations of organizations. The Inspection Panel, as illustrative of these developments, represents 'an important step towards securing transparency and fairness in the operations of international organisations, bold in its involvement of "communities" in the proce~s'.~75

'75

Collier and Lowe, The S e t t b t ofDzsputes i n International Law (1999).p.

121

Globalization of Human Rights: The Role of Non-state

Actors Andrea Bianchi

INTRODUCTION It may very well be that the universalization of human rights is a political or historical fact that needs no further comment (Henkin, 1981: 4; Bobbio 1992: 21). The widespread international consensus on the values enshrined in the Universal Declaration of Human ~ i g h t s and ' the overall agreement on the two UN Human Rights covenants2 may lend support to the argument that the ethical relativist approach (Brandt, 1967) that has been argued by some segments of legal scholarship to be a major hindrance to the development of universal standards (Joyner and Dettling, 1984; Renteln, 1985), is largely irrelevant in practical terms. Whether or not that is right, the legal dimension of such a process needs to be assessed carefully. In particular, if we take the expression 'globalization of law' to mean a law-making process which occurs in multiple sectors of civil society, independently of nation-states (Teubner, Chapter 1 in this volume), the mere existence of international legal norms embodying such a supposedly shared value as the protection of human rights is not conclusive evidence of such a phenomenon. At most, it is a sign of the quest for universality that, in international law, seems all the more indispensable with regard to some issues of common concern, such as the protection of human rights and the environment (Charney, 1993: 529) and of the increasing internationalization of matters which states ustd to consider as pertaining to their domestic jurisdiction. This per se is a major innovation, but it does not necessarily imply a transformation of the nature of the international community. Prima facie international law-making mechanisms still focus on the

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conduct of the nation-states. Contemporary trends to establish multilateral fora of negotiation for the handling of complex issues do not seem to have notably altered the state-oriented approach to formal law-making processes. As is well known, treaties, customs and soft law instruments, which provide the traditional normative structure of international law, rely on state conduct and are ultimately anchored in the consent of states either expressly or t a ~ i t l yLaw . ~ enforcement processes are authorized, or at least consented to, by states. Quite understandably, the latter seek to keep under control the legal processes that take place in an international community in which they are still deemed to be the main actors. On closer scrutiny, however, the above paradigm may reveal an unexpected degree of inaccuracy. Due to the developments of the past few decades, non-state actors have started playing an increasing role in the shaping of the international human rights doctrine, deeply infringing on the once indisputable prerogatives of the nation-states. This role varies depending on the type of actor and on the nature and characteristics of the processes in which they participate. Although such processes are still predominantly state-centred, both the development of consistent practices of intervention by non-state actors, and the legitimacy that their actions have recently acquired, may ultimately undermine the states' monopoly in the production and implementation of international norms. The purpose of this chapter is to investigate the complex interaction of state and non-state actors in fostering and ensuring respect for human rights at a global level. After a cursory review of the practical manifestations of this interaction, its relevance will be assessed with a view to ascertaining whether it is-likely to turn out to be the germ of a process of globalization of human rights law via the dynamics of a transnational civil society (Teubner, Chapter 1 in this volume: Evan, 1991; Falk, 1992).

QUANTUM MUTATUSAB ILLO! T H E CLASSICAL DOCTRINE OF INTERNATIONAL LAW AND THE EMERGENCE OF THE INTERNATIONAL HUMAN RIGHTS DOCTRINE When in 1586 Jean Bodin defined in his De Repuh1ic.n the concept of sovereignty as '. .. summa in cives ac subditos legibusqe soluta potestas' (Brierly, 1942: 6), he could not have predicted that positivist legal theory, thriving on the interests of the nation-states, would revive and perpetuate its symbolic and practical meaning until recently (MacCormick, 1993). The classical doctrine of international law, largely based on the sovereignty paradigm, paid little attention to individuals who were occasionally considered as mere beneficiaries of a restricted number of international legal

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377 18 1

rules, such as those on the treatment of aliens. The respect due to an equal sovereign obliged the territorial state to grant an international minimum standard of treatment to foreign nationals. Individual claims, however, would become relevant under international law only if they were 'espoused' by the national state of the injured individual (D'Arnato, 1987: 194 ff.). This

left individuals at the mercy of states which, most of the time, would avoid antagonizing other states in the conviction that sooner or later they might find themselves in the position of the wrongdoer. Overall, states could act freely within their territorial boundaries. The externalization of the concept of sovereignty, originally devised by political theorists to describe the political facts of the time (Brierly, 1942: 38), progressively gained legitimacy as an international legal rule, thus giving states an almost unfettered power over their subjects. The neglect of individuals and their rights did not withstand the devastation brought about by the Second World War, the bombing and other kinds of suffering inflicted upon civilian populations and such grave offences against the dignity of humankind as those perpetrated by the Nazi regime. The Nuremberg principles? subsequently endorsed by the General Assembly of the United Nations? attested to the strong commitment of the international community no longer to tolerate the heinous crimes committed before and during the war. Further, the human rights provisions included in the UN Charter and the wide consensus on the adoption of the Universal Declaration of Human Rights (Sieghart, 1991: 27) paved the way for the proliferation of human rights instruments that not even the profound ideological differences existing in the international community have prevented. The shaping and progressive consolidation of an international human rights doctrine has had remarkable repercussions on the concept of state sovereignty and its ancillary notion of domestic jurisdiction. The Permanent Court of Justice had already stressed the inherent relativity of the concept of domestic jurisdiction, the content of which varies depending on the evolution of international law.6 Whatever is regulated by international law can no longer be amenable to the category of purely internal matters. If a state violates human rights its conduct may be subjected to scrutiny by the international community. When its violations are grave and massive, it may be held responsible internationally on the basis of customary law, regardless of its formal participation in any human rights treaty regime. The steady erosion of the notion of domestic jurisdiction has led to a profound change in the related concept of sovereignty. International law no longer grants absolute protection to the sovereignty of states. Some commonly shared values, such as the protection of human rights, allow the international community to interfere with the once indisputable power that states had vis-

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ri-vis their own subjects. Today, the way a state treats human beings under its jurisdiction and control is a matter of international concern.

THE CHANGED RELATION OF THE INDIVIDUAL TO THE STATE The above developments notwithstanding, the representation of international law as a set of legal rules governing the relations between sovereign and independent states would still meet the canons of orthodoxy for many international lawyers. International legal scholarship finds it hard to elude the restraints imposed upon it by the legacy of positivism. This is particularly evident when one looks at the doctrine that still dominates the issue of who are considered to be the subjects of international law, in which hardly any room is made for subjects other than states and international organizations. States naturally tend to support such a theoretical framework, which is obviously instrumental to their retaining control over international lawmaking and law-enforcement mechanisms. In fact, theoretical thinking on the subjects of international law is not deprived of important practical consequences. For instance, it permits states to deny individuals legal standing before international tribunals and, sometimes, even before domestic courts on the basis of the doctrine of the unenforceability of international law claims by individuals. In spite of such a strong commitment to opposing the recognition of individuals and other entities as legitimate actors in the international ,arena, the force of - some .recent developments in international practice is slowly overcoming'the understandable resistance of states to modifying the status quo. The once indisputable denial of legal standing for individuals before international tribunals is increasingly subject to exceptions.7 Further, their entitlement to human rights, acknowledged in international instruments, and their alleged accountability for international law crimes (Sunga, 1992; Bassiouni, 1992), make it more and more difficult to justify their exclusion from intemational law processes even on formal grounds. In particular, the international human rights doctrine has inevitably and irrevocably altered the main tenets of the traditional paradigm of international law. When the community of states accepted the idea of human rights it inadvertently let a Trojan horse into the strongly state-centred system of international relations. Over time, the shaping of the doctrine of international human rights has proved to be a catalyst for a process which has progressively led not only to the steady erosion of the positivist notion of state sovereignty, but also to the practical necessity of framing international law in a different context. If one looks at international law as a complex process of decision-making rather than as a set of normative prescriptions,

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the idea that individuals and groups are 'part and parcel of the fabric of international law, representing the claims that are naturally made by individual participants in contradistinction to state-participants' (Higgins, 1985: 480) is not so astounding as it might have appeared a few decades ago (Schreuer, 1993: 449 ff.).

THE CONTRIBlJTIONOF THE WRITING OF JURISTS TO THE EMERGENCE OF HUMAN RIGHTS AS A SHARED VALUE WORTHY OF PARTICULAR LEGAL PROTECTION Quite apart from the formal recognition of the teachings of the most qualified publicists of the various nations as a subsidiary means for the determination of rules of law, provided by Article 38(l)(d) of the Statute of the Jnternational Court of Justice, the writing of jurists appears to have had a remarkable influence on the shaping and gradual emergence of the idea of a world public order. This idea of the world public order is one in which international human rights norms would enjoy a superior rank as they reflect values and interests deemed to be worthy of particular legal protection by the international community as a whole. Building on the famous dictum of the International Court of Justice in the Barcelona Traction case, which distinguished between international law 'obligations of a State towards the international community as a whole, and those arising vis-8-vis another State' (Schwebel, 1991: 964),* scholars have progressively elaborated on the notion of obligations erga omnes (Picone, 1983; Meron, 1989: 188 ff.). Such a qualification envisaged by the Court for norms 'concerning the basic rights of the human person' implies significant consequences. In principle, by bestowing a legal interest on each and every state in the observance of certain obligations which are deemed to be of the greatest importance for the international community, states are given the power to ensure that such obligations are respected (Charney, 1989; Sicilianos, 1990). The idea of an international public order where certain principles deserve particular protection is thus introduced into international law. Parallel to this development, the notion of a restricted core of peremptory norms was advanced by the International Law Commission, an organ established by the UN General Assembly and composed of independent jurists (The Work of the International Law Commission, 1988). The concept, subsequently endorsed by governments, was codified in the Vienna Convention on the law of t r e a t i e ~Ever . ~ since the notion of jus cogens has become an integral part of international law (Gomez, Robledo, 1981; Alexyde, I98 1; Gaja, 1981; Frowein, 1984; Hannikainen, 1988; Danilenko,

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1991). The inherent difficulties in highlighting specific norms which cannot be derogated from have not prevented the vast majority of legal scholars from acknowledging that some international norms which protect fundamental human rights should be given such a status. The looming notion of international crimes through the traditional precepts of state responsibility has given further momentum to the idea of an autonomous legal regime for the repression of grave breaches of fundamental norms of international human rights law (Dupuy, 1979; Weiler er al., 1989).1° The distinction between international crimes and delicts was presented by the Internafional.Law Commission in its Draft Articles on State Responsibility as lex lnta." As far as human rights are concerned, 'a serious violation on a widespread scale of an international obligation of essential importance for safeguarding the human being' was cited as an example of an international crime. The consequences of an international crime are still controversial, but the idea of a special regime of international responsibility for grave violations of fundamental obligations is taking root in the international community. Such categories as obligations erga omnes, jus cogeas norms and international crimes converge on the development of a world public order in which certain values are perceived to be fundamental for the international community as a whole (Mosler, 1980; Jaenicke, 1984; Gaja, 1989). The establishment of a hierarchy of norms on the basis of their content, rather than on the process of their creation, attests to this tendency (contra Weil, 1983). As is the case with any other legal system international law is valueoriented. Jurists may evaluate such values and provide a formal framework for their implementation. They can provide a conceptual framework which may be instrumental either for the justification of intervention by a state or by the international community as a whole to place sanctions on human rights violations or, conversely, to blame the same actors for their inertia. The writing and codification of law by jurists in the field of human rights has a much greater impact on state practice than one might expect. Especially '[nlational courts are unfamiliar with state practice and are ready to lean on secondary sources' (Brownlie, 1990: 25). It is noteworthy that such doctrinal work as the Restatement (Third) of the Foreign Relations Law of the United States, drafted by a group of eminent jurists for the American Law Institute and often quoted as the only authoritative source on international law issues before domestic courts, has taken a progressive stance on international human rights which endorses most of the contemporary developments described above (Restatement, 1987: paras . 33 1(2); 702, Comment; 703(2)). Needless to say, the writings of jurists would have had less remarkable Consequences had they not thrived on some complex transnational social

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processes which provide indirect support for their conceptual findings. Indeed, the apparent formality of the contribution of jurists to the shaping of an autonomous international human rights regime is immaterial if it is realized that it can be instrumental to giving expression in legal terms to the demands of civil society. The increasing awareness by the world public

opinion of human rights issues emphasized by the media on the one hand, and the attempt by jurists to conceive of an autonomous international human rights regime on the other,12 are phenomena that occur at different levels but which cannot be evaluated in isolation from each other. Connections are not always visible and distinctions are not always clear-cut, but their interaction cannot be denied. Thus, a self-reproductive legal discourse, elaborated by a restricted intellectual community when coupled with social processes that give support to the basic tenets of the discourse, may ultimately affect state behaviour. As with jurisprudential assertions, doctrinal stances tend to create beliefs and by their constant repetition and use they ultimately influence the content of the law. The incorporation of such beliefs in-international legal rules is no evidence of the emergence of a global law. However, by fostering the idea that human rights enjoy a particular legal protection in international law as fundamental values for the whole international community, jurists set the stage for the development of a new world order based on shared values and common interests.

THE INCREASING ROLE OF NON-GOVERNMENTAL ORGANIZATIONS IN THE SHAPING OF INTERNATIONAL HUMAN RIGHTS DOCTRINE AND PRACTICE Scant attention has been paid to the activities of private groups in the international arena. Contemporary developments show that this attitude is no longer justified. Nowadays, the activities of non governmental organizations (Bettati and Dupuy, 1986) in the field of human rights range from information-gathering dnd processing with a view to disclosing human rights violations by states to lobbying national governments and international organizations in order to influence andlor control relevant policies. Furthermore, they are increasingly involved, sometimes in cooperation with governmental organizations, in the complex machinery of international lawmaking and law-enforcement activities (Weissbrodt, 1984).

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Selected examples of the participation of non-governmental . organizations in international human rights law-making processes The role of non-governmental organizations in international law-making has been occasionally acknowledged in legal scholarship. For instance, mention is often made of the contribution of the Anti-Slavery Society to the abolition of slavery in the nineteenth century and of several non-governmental organizations to the inclusion in the UN Charter of the provisions related to human rights. The peculiar experience of workers' and employers' representatives at the International Labour Organization (Wolf, 1984) could also be regarded as one of the first institutional forms of participation of private groups in the formulation of human rights standards. Only recently, however, has the NGOs' active involvement in the creation of international law rules materialized in a more transparent manner. One particular instance of recent practice which is worth mentioning is the contribution of Amnesty International (AI) in the 1970s to the development of international legal standards prohibiting torture (Leary, 1979). Building on the prohibitions already existing in international law instruments, Amnesty International launched a worldwide campaign and concentrated its efforts on gathering consensus on the qualification of torture as an international crime and on the need to strengthen the emerging international regime. By drawing attention to torture A1 put pressure on national governments. Participating actively in the preparation of the Fifth UN Congress on the Prevention of Crime and the Treatment of Offenders, it asked national sections to mobilize domestic public opinions as well as governments. In the same year the General Assembly adopted the Declaration on ~ o r t u r eand, ' ~ in order to ensure an effective follow-up, A1 proposed the adoption of an ad hoc Convention. How much this contributed to the subsequent adoption of the UN Convention Against ~ o r t u r eis' ~hard to assess. It seems reasonable to infer, however, that were it not for the systematic campaign organized by Al, it would have been much more difficult to achieve such a wide, almost universal, condemnation of torture which is now reflected in a general acceptance of the prohibition of torture as a customary rule of international law binding on all states. More recently, certain NGOs made a remarkable contribution to the drafting of the UN Convention on the Rights of the Child.I5 Perhaps for the first time in history, the concrete impact of their action has been acknowledged and partly reflected in both Article 45 and the rrclvnux prkpnmtoires, where reference is made to 'other competent bodies' besides state representatives and intergovernmental organizations. The fruitful cooperation between NGOs and the' governmental working group charged with the difficult task of drafting the Convention, deserves further comment.

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In terms of efficacy, the NGOs' action greatly benefited from the coordination of the Ad Hoc Group which, since 1983, had submitted regular reports to the governmental working group. The direct involvement of NGOs in the negotiating process kept governments under pressure and forced them to hasten the successful conclusion of the negotiations. It is also noteworthy that the NGOs involved in the negotiations were able to trace at least 13 articles included in the text for which they were primarily responsible. It matters little if their proposals were often presented by state representatives rather than directly by the concerned NGOs: the latter's cohesion and careful preparation, as well as the breadth of expertise on which they could draw, account for the success of the undertaking (Detrick, 1992: 25). Despite the lack of transparency that usually characterizes the NGOs' participation in international negotiations, their increasing involvement shows a degree of legitimacy which could hardly have been envisaged until recently. In particular, the coupling of traditional government lobbying and policy-influencing activities with informal participation in formal lawmaking mechanisms, as in the case of the UN Convention on the Rights of the Child, greatly contributes to the enhancement of the NGOs' role in the protection of human rights.

The NGOs9intervention in international judicial proceedings A peculiar and particularly effective form of participation in international law-enforcement mechanisms is intervention as amicus curiae in judicial proceedings before international tribunals. In recent practice this has proved to be a good substitute for direct intervention given the many limitations that international law still imposes upon non-state actors in terms of legal standing. l 6 As recent studies have demonstrated (Shelton, 1994) an increasing pattern of submission of amicus curiae briefs to the European and the interAmerican Courts of Human Rights attests to the growing role of NGOs in international litigation. In the case law of the European Court of Human Rights the first occasion on which a concrete submission of information took place was in the Young, James and Webster case where the Trade Unions Congress submitted, through the Commission, information to which the final ruling of the Court made express reference and a TUC representative was heard in oral proceedings.'7 Following a formal amendment to Article 37(4) of the Rules of Court, which formally allowed submissions by third parties 'in the interest of the proper administration of justice', the number of instances in which NGOs have intervened has increased steadily. I S Although intervention has occasionally been denied either because the relevant issues

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had already been dealt with adequately by the parties,19 or because the existence of clear precedents applicable to the case had made such an intervention redundant,20 the activism of NGOs has frequently provided the Court with background information, comparative legal analysis or interpretation of the law. Particularly active NGOs, in the context of the European Convention, include Interights and ~ r t i c l e19 (the International Centre Against Censorship). The latter's submissions appear to have been particularly relevant to the decision in the notorious case concerning the book a catcher.^' Comments by Amnesty International are quoted in the judgement of the Court in the equally notorious Soering case.22In the recent m ,Court ~ ~ discussed at case Brannigan and McBride v. United ~ i n ~ d o the length the allegations submitted by several NGOs including Amnesty International. Although the Court finally found against the plaintiffs and upheld the UK derogation under Article 15 of the ECHR, it is of note that Judge Martens in his dissenting opinion thoroughly endorsed the arguments submitted by several NGOs.

The NGOs' contribution to the implementation of international human rights The involvement of NGOs in the implementation of human rights may occur in many different ways (Wiseberg-Scoble, 1979). Intervention at the diplomatic level to point out human rights violations to government officials may sometimes be expedient for the provision to the victim of means of redress when discrete action is required in the circumstances. Also factfinding missions have often been resorted to in order to investigate alleged violations, to attend trials in a supervisory capacity or to mediate disputes. A detailed survey of such a form of intervention (Thoolen and Verstappen, 1986) unveils its complexities and the variety of purposes that may direct its choice. The outcome of the missions may be kept confidential as is often the case with the International Committee of the Red Cross (Forsythe, 1977) visiting places of detention (Armstrong, 1985), usually with the permission of national governments, or made available to the public as Amnesty International frequently does in order to draw attention and promote public discussion of human rights violations by states (Armstrong, 1986: 250 ff.). In addition to that, the most known NGOs regularly publish country or single-issue reports. Along with the reports issued by state actors, such as the yearly State Department Human Rights Report, and with those occasionally published by a myriad of other NGOs, these publications greatly contribute to the dissemination of information essential to forming a global understanding of human rights.

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A cursory review of the participation of NGOs in international investigative procedures betrays a wide array of activities that largely depend on the international legal instruments on which they are based. An important contribution to the implementation of human rights consists in the possibility of submitting communications to various organs established within the

framework of international organizations such as the United Nations or the Council of Europe or set up by specific human rights treaties. By way of example, one may cite, within the UN system, the NGOs' entitlement to make communications to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities of the Commission on Human Rights (Kamminga and Rodley, 1984; Lillich, 1991: 374 ff.) and to submit information under the ECOSOC Resolution 1503 related to situations which appear to reveal a consistent pattern of gross violations of human rights (Hannum, 1984: 60 ff.). In the latter case their power is made conditional on their acting in good faith, on their not resorting to politically motivated stands and on the requirement that they have direct and reliable knowledge of the violations. Furthermore, NGOs may contribute to special studies and, on request, provide information to the Secretariat, the Commission on Human Rights and other UN organs. In the European context NGOs participate in human rights monitoring activities under ad hoc arrangements which provide a formal affiliation with ~ the Council of Europe and the CSCE process (Brett, 1 9 9 3 ) . ~Moreover, NGOs may bring matters to the attention of the Committee established by the European Convention for the Prevention of Torture, urging visits to particular places of detention within one of the states party to the Convention. As far as specific human rights treaties are concerned, the possibility for NGOs to make oral and written submissions to the Committee on Economic, Social and Cultural Rights and to the Committee on the Rights of the Child (Posner, 1994), and to make written submissions to the Committee Against Torture (Brett, 1993: 138) may be mentioned. Quite apart from any formal arrangements, the exchange of information between governmental and non-governmental organizations appears to be common practice. Cooperation takes place regardless of formal constraints, especially in cases in which individuals sit on governmental organization bodies in their private capacity. It is also impossible to prevent access to governmental delegates, if the delegates are willing to receive information from NGOs. Ultimately, due to legal and financial restraints, the work of intergovernmental organizations would not be effective without the help of NGOs and human rights activists who gather and process the information to be submitted. The establishment of formal procedures by intergovernmental organizations has been an indispensable, albeit insufficient, element in the

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progressive development of an international human rights doctrine. Such procedures, originally created within the traditional framework of interstate relations, are made effective by the activism of NGOs. The latter not only make repressive practices and violations of human rights more transparent by gathering and disclosing information and by attracting media coverage, but also force states to justify their conduct. Moreover, international procedures are more likely to be triggered off by NGOs than by the states themselves which tend to abstain from activating legal processes which might backfire on them later (Posner, 1994: 407). A good illustration of such a process is given by two case studies of Latin American countries engaged in repressive human tights practices, although to a varying degree and under different circumstances. A recent study confirms that widespread and systematic action by NGOs and other private groups may draw attention worldwide to repressive human rights practices in certain countries and by mounting international pressure on responsible governments may cause a remarkable improvement in the situation (Sikkink, 1993). Some common trends can be discerned in the accused states' reaction to allegations of human rights violations set forth by NGOs. At first, the states concerned usually refuse international scrutiny over their human rights practices. Then, after attempts to discredit human rights activists and organizations, the outside pressure forces them to cooperate. Eventually, the persistent activism and the credibility of NGOs lead to a change in relevant policies and practices. Overall the action of NGOs appears to be more effective in connection with the existence of a normative framework of a national or international character. In such a case an effective remedy might be made available to the victims after the disclosure of a violation'. Participation in international investigative procedures and diplomatic efforts to induce compliance with international human rights norms do not exhaust the NGOs' contribution lo international law processes. By means of their action at both national and international levels they create transnational solidarities and gather consensus on human rights values regardless of whether they are embodied in formal rules. In other words, they contribute to establishing a communicative process whereby the.conduct of states is no longer assessed in terms of acting in conformity with international binding rules, but by a much less formal code according to which the legality of their behaviour largely depends on its being consistent with some basic understanding of certain human values the respect of which is perceived to be fundamental.

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Some final remarks on the activities of NGOs Given the informal and episodic character of most of the NGOs' practice of intervention to ensure respect for human rights, one may wonder why governments care so much about their activities. Despite its apparently

dispersed nature, the power held by NGOs in the production and implementation of human rights is an effective instrument for a variety of reasons. The first, perhaps obvious, one is that any government, whether dictatorial or democratic, would be seriously damaged were it to be established that, by acting 'tyrannically towards its citizens, it violates the basic trust which permits it to continue ruling' (Weissbrodt, 1988: 410). Second, by disclosing violations of human rights NGOs may activate, directly or indirectly, different kinds of legal remedies which ultimately affect the violator's interests. Third, and perhaps most importantly for our purposes, the spread of information concerning a state's poor record in respecting human rights standards creates an aura of hostility and a widespread negative attitude towards it, regardless of its formal participation in international treaties or of the formal value of such standards. The distinction between binding and non-binding law is blurred, and by the communicative process activated by the NGOs the conduct of states is assessed in terms of the binary code 1egaUillegal regardless of any breach of international law obligations. The irony is that, to carry out their functions effectively, NGOs themselves need to be protected (Wiseberg, 1991). The efficacy of their action may be hampered by governments by a variety of means, such as restricting the right to freedom of association and expressian or denying the recognition of legal personality to NGOs (Posner, 1994). In this respect it is worth mentioning that, in 1991, the European Convention on the Recognition of the Legal Personality of International NGOs came into force, providing for the mutual recognition of transnational NGOs (Sobrino Heredia, 1990). The other relevant issue is that of access to intergovernmental organizations. As far as the United Nations is concerned, criteria for granting consultative status to NGOs are set in Resolution 1296 (XLIV) of 23 May 1968 of the UN Economic and Social Council (Centre for Human Rights, 1988: 30). In the framework of the Council of Europe, Resolution (72) 35 of the Committee of Ministers lays down rules on the relations of the organization with NGOs (Drzemczewski, 1987: 276). Other ad hoc arrangements regulate the relations of NGOs with other international organizations or with organs set up in the framework of particular treaties. As to the objection that the source of validation or legitimation for NGOs' participation in international law-making or law-enforcement mechanisms has to be traced to states' consent, the following point can be made. Such a

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formal argument loses much of its force when it is realized that states have limited control over the relevant conduct of NGOs once the latter are allowed to participate either formally or informally in the production, supervision of compliance or actual implementation of international norms. As has rightly been pointed out (Willetts, 1982: 182), the assumption that national representatives in international organizations follow scrupulously instructions from their governments may be misleading. Most of the time instructions are vague; they can be interpreted and can even be ignored. This is why well prepared and well informed NGO observers attending meetings can play a significant role in fostering the cause of human rights.

HUMAN RIGHTS NETWORKS AND OTHER COMMUNICATIVE PROCESSES OF A GLOBAL CHARACTER A functional analysis approach suggests that a distinction should be made between non-governmental organizations and other networks of a private character which operate in the field of human rights. In particular, professional networks should be the object of a separate analysis, for they draw their identity from not being exclusively devoted to just one issue, unlike non-governmental organizations which see themselves as the antithesis of governmental organizations and which focus mostly on human rights abuses committed by states. Professional associations perform functions and have characteristics which do not necessarily coincide with those of NG0s.- That is why functional typologieshave. been proposed that are remarkably different from those elaborated" with regard to NGOs (Wright, 1989: 191). The informality of communication and the frequent lack of permanent organizational structures are distinctive features of many such networks. Another distinctive feature of professional networks is the building of transnational solidarity on the basis of such commonalities as research interests, vocation and ethical standards. The medical and legal professions are particularly relevant in this context. Professional networks of physicians may give humanitarian assistance, provide expert testimony during trials involving violations of human rights and help investigate human rights abuses. Lawyers may educate the public on their rights and provide advocacy on behalf of individuals and groups. Both categories foster the establishment and maintenance of professional ethical standards25which are fundamental in preventing complicity and connivance with human rights violations. Also, academic networking can be seen as a powerful instrument. Beside providing contacts for the sharing of common areas of research, interest groups on human rights issues help with the process of updating

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current developments and in some instances may provide useful instruments for advocacy (Paust, 1985).26 However, a crucial aspect of the activities of professional networks is the collection, processing and dissemination of information. The reliability and credibility of transnational organizations depend very much on how this

function is performed. The strong emphasis put on information processing is thoroughly justified when one realizes that '[tlhe politicization of human rights in the international arena has placed the burden of proof on the organizations and/or the victim of the violations' (Wright 1989: 192). Informational networks are greatly facilitated by the fast pace of technological progress. It suffices here to mention the enormous amount of information already available on the Internet. E-mail and similar methods of long-distance communication may favour human rights activists in providing relief to victims of human rights violations by hastening and broadening the dissemination of information. Arguably, this might improve the chances of mounting international pressure on states that violate human rights and favour the development of cooperation among non-state actors with a view to elaborating joint and more efficient strategies of intervention. Further, they promote interest and discussion groups whose communication and interaction will make cyberspace bypassers or regular servers more sensitive to human rights issues. Given the still scant number of studies on the likely impact of these new technologies on future social behaviour, let alone law-making processes, the above consideration falls short of any scientific accuracy. However, it would be too simplistic a logic to dismiss the issue as one pertaining to the realm of fantasy. Even at the present stage of development of such new systems of communication and interaction, it is reasonable to speculate that they will contribute to creating favourable conditions for the establishment of a global society which transcends national boundaries. The creation of global communicative processes is not uncommon in the contemporary world (Luhmann, 1993: 572). What makes the emergence of a global law apparently different from other similar-social processes is that it observes social action 'under the binary code of legalhllegal' (Teubner, Chapter 1 in this volume, p. 12). The traditional meaning that such a binary code takes on in both national and international law with reference to the actual content of rules enacted in accordance with established legal processes can be misleading if it is transposed lock, stock and barrel to the context of a prospective global law of human rights. In fact, the development between different actors operating on a global scale of a fairly homogeneous standard of communication, made up of codes which are peculiar to the field of human rights, favdurs the merging of moral aspirations and shared ideas into common values and principles which provide the standards against

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which the legality of conduct is tested. It should be stressed that in such a complex process it is mainly NGOs, interest groups and professional networks operating in civil society that act as a catalyst to 'create the public understanding of human rights' (Brett, 1993: 23). By changing the information and environment in which state actors operate (Sikkink, 1993: 441) they may alter human rights practices and eventually mandate new modalities in international law-making.

THE DEVELOPMENT OF TUNSNATIONAL SOLIDARITIES AMONG DOMESTIC COURTS: INTERPRETIVE TOOLS AND LEGAL ARGUMENTATION TECHNIQUES INSTRUMENTAL TO GLOBALIZATION The distinction between state and non-state actors is inaccurate to the extent that it fails to explain all the instances in which traditional participants in state law-making processes, such as domestic courts, seem to enforce principles and values regardless of whether those values have been transposed into domestic binding rules. This assessment presupposes, perhaps unfairly, that state actors are expected invariably to foster interests and values that are peculiar to their national legal systems. As exemplified below this is not always the case. .By means of particular interpretive and legal argumentation techniques judges have occasionally implemented international human rights at the risk of causing embarrassment to their national state or to foreign countries. In the famous case of Filartiga v. Pena Irala, .decided by the United States Court of Appeals for the Second Circuit in 1 9 8 0 , some ~ ~ citizens of Paraguay sought relief against another citizen of Paraguay accused of having tortured and caused the death of a relative of the plaintiffs in Paraguay. The defendant was a police officer who had allegedly committed the crime in retaliation for the political convictions and beliefs of the victim's father. Given the absence of any relevant connection with the United States, the district court had dismissed the claim for want of subject-matter jurisdiction. The Court of Appeals resorted to an eighteenth-century statute which had hardly ever been applied until then. The Alien Tort Claims Act of 1789 permitted an alien to bring a civil action in a federal court for a tort committed in violation of the law of nations (Burley, 1989).28 The Court held that an act of torture materializes a violation of the international law of human rights and that, therefore, it had jurisdiction over the case. The reasoning of the Court in Filartiga is worth examining in more detail. In the absence of other bases of jurisdiction under its domestic law, the Court, rather than dismiss a case hardly related to the interests of the United

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States, revived an old statute and interpreted it in such a way as to justify granting jurisdiction over the case. In order to trigger off the applicability of the jurisdictional provision of the ATCA, the Court had to demonstrate that the alleged conduct of the defendant materialized a violation of the law of nations. It should be recalled that, at the time, the U N Convention on Torture had not yet been adopted and the United States was not a party either to the U S Covenant on Civil and Political Rights'br to the inter-American Convention on Human ~ i ~ h t which s , ~ contain ~ express prohibitions of t~rture.~ Therefore ' the Court was bound to demonstrate the existence of an international customary rule prohibiting torture. Besides a doctrinal commitment to it, the principle had found hardly any judicial application. The Court achieved this goal by referring to 'the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world (in principle if not in practice)'. The Court's self-praising assessment of its judgement as 'a small but important step in the fulfillment of the ageless dreams to free all people from brutal violence' is fairly telling of the rationale of the rule of.decision. Moreover, the Court qualified the torturer as hostis humani generis - an enemy of all mankind - whose conduct could be punished by any state. Filartiga seemed to pave the way for the establishment of a principle of universal jurisdiction over grave human rights violations (Bodansky, 199 1). Individual accountability before the domestic courts of any state for violations of international human rights other than war crimes was almost a novelty. The fear of transforming domestic courts into international tribunals and the ensuing embarrassment for the international relations of the state to which the Court belongs have prevented the development of a pattern of judicial decisions along these lines. However, the precedential and symbolic value of Filartiga remains there to attest to the willingness of domestic courts to foster values and principles which are perceived to be universal. In this respect, judges seem to act more as the law-enforcement officers of a global order than as mere instrumentalities of national legal systems. Another example of the way domestic courts may foster normative values, regardless of their domestic law, may be apt in the present context. One of the principal hindrances to the adjudication and enforcement of international human rights by domestic courts is the doctrine of state immunity (Schreuer, 1988). Traditionally, foreign states are deemed to be immune under international law for acts carried out in their capacity of sovereign entities (acts jure imperii), whereas the exercise of jurisdiction over a state's commercial activities or other acts of a private nature (acts jure gestionis) is commonly admitted. This regime is reflected also in :he domestic legislation of many states, which is meant to incorporate international legal standards.

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The increasing resort of individuals to domestic courts to seek redress for violations of human rights committed by foreign states has unveiled the inadequacy of the above paradigm. A strict interpretation of the international law of state immunity inevitably leads to the granting of immunity to human rights violators. Highly politicized judicial bodies such as the United States Supreme Court have adopted such a stance. In the recently decided case, Saudi Arabia v. els son,^^ for instance, the US Supreme Court characterized the acts of torture committed by Saudi police officers as sovereign acts entitled to immunity. Lower courts have taken a totally different attitude and have resorted to a variety of interpretive means to avoid granting immunity to violators of human rights (Bianchi, 1994). For instance, the Court of Appeals in the above-mentioned Nelson case recharacterized the case in order to make it amenable to the commercial activity exception to immunity.33It held that the hiring of Nelson in the United States was a commercial activity carried out in the forum by the foreign state and that, consequently, immunity should not be granted. Quite obviously, the relevant activity of the foreign state to be characterized was, rather, the acts of torture committed by state officials. The interpretative device resorted to by the Court scarcely conceals its determination not to grant immunity regardless of national and international law. In other instances domestic courts have used an interpretative rule of statutory construction which is common to many jurisdictions - namely, the presumption' of conformity. of domestic law with international law. By simply postulating that international law does not grant immunity to foreign states that violate international human rights they refuse to interpret the domestic law on state immunity contrary to international law (Conforti? 1988: 56-7).34Recently, a UK court has employed similar reasoning to deny state immunity to a foreign state that had tortured an i n d i v i d ~ a l Other .~~ means to dispense with the old-fashioned doctrine of sovereign immunity include the broad interpretation of exceptions which are recurrent in national codification^^^ and the argument based on the peremptory character of international human rights norms, which would prevail over other rules of international law such as state immunity.37 Similar reasoning has been occasionally used to deny immunity to the organs of a foreign state that had violated fundamental human rights.38 The case of sovereign immunity is particularly illustrative of the role that judges may play in advancing human rights even when their national governments support the interests of foreign states. In a number of cases involving human rights violations by foreign states the US government filed briefs as amicus curiae, submitting that immunity should be granted. When both international and national law contrive to shield the state and its organs behind the screen of immunity to defeat legitimate individual

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claims (Lauterpacht, 1951: 235), judges extensively resort to interpretative instruments which break up the constraints put on them by domestic or international rules. This is particularly so when the application of these rules would be inconsistent with the objective of protecting human rights. Given that legal interpretation presents 'a good deal of similarity among systems belonging to significantly different legal, constitutional and political traditions ...' (MacCormick and Summers, 1991: 532) the development of a consistent pattern of judicial decisions - which, by means of interpretation and legal reasoning techniques, foster transnationally shared values - may ultimately contribute to the globalization of the law of human rights. As one commentator has stated '[tlhe jurisdictional discourse at once reflects a belief in a shared set of interpretative commitments and creates, by their consistent use, the belief itself' (Note, 1990: 1290). In traditional jurisdictional discourse territory, citizenship and national interest are common values. The transnational solidarities that any discourse on human rights necessarily implies might, in the not-too-distant future, pave the way for jurisdictional assertions based, on a different set of values. Such global concerns as the protection of human rights or the environment might very well provide common ground for developing new jurisdictional patterns which transcend national boundaries. The examples of judicial determinations . . step in that direction. pre~ented~above may be regarded as a- concrete A FRAGMENTED GLOBALIZATION: ISSUES OF

INSTITUTIONALIZATION AND COORDINATION In the attempt to trace a tendency towards the globalization of human rights law, one might be disillusioned to observe that the institutionalization and coordination of non-state actors' activities closely follow the arrangements provided by international law instruments and institutions. A high degree of institutionalization exists at regional levels where sophisticated international human rights treaty regimes have been developed. Coordination is ensured by such formal mechanisms as consistency clauses in international agreements or by resolution or other soft law instruments enacted by international organizations. As with other processes of gradual transformation, the increasing activism of non-state.actors in an international community of states has not yet generated a system which is independent of international law. The latter provides the means of intervention and constrains participation of non-state actors by means of specific rules, mostly of a procedural character. .Such a state of affairs should not be seen as a sign of the indissoluble link between international legal processes and state actors. On the contrary, state

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and non-state actors frequently act in a complementary way and can be deemed to perform different functions with some areas of overlap. At the present stage of development of international human rights law, international organizations and international binding rules still provide the framework of the legal discourse. Non-state actors strengthen this regime by promoting respect for human rights and by inducing compliance with international standards, sometimes even beyond the scope of application of international obligations. By mobilizing the public and drawing attention to state conduct which does riot conform with international standards, non-state actors exert effective control on international legal processes. Occasionally, they substitute for state actors for the purpose of triggering off sanctions or amplifying their negative consequences. The mobilization of shame on the state at fault is a good example of how non-state actors may contribute to sanctioning violations and fostering compliance. Further reasons exist not to evaluate negatively the parallel institutionalization of state and non-state actors' activities in the field of human rights. A consistent pattern of intervention by non-state actors in highly institutionalized regional frameworks may also lead in time to the general acceptance of such a practice in different contexts. In this respect, regionalization may be seen as instrumental to globalization. Moreover, such factors as the growing bureaucratization of human rights within the United Nations may be fertile ground for the activism of NGOs. States find it difficult to exercise strict control on all the fora in which human rights issues are discussed at the UN. Therefore, the institutionalization of human rights can be a means to channel human rights claims by non-state actors and of amplifying their international impact. Via different institutional centres with which they develop affiliations, non-state actors operate, drawing their legitimacy from a strong social commitment to human values which are perceived to be fundamental for the dignity and the well-being of humankind. Given the structural constraints of an international community which is still predominantly state-centred, nonstate actors are often bound to act in the interstices. The coupling of their action with transnational social processes, which strongly support initiatives to foster the values enshrined in human rights and exercise pressure on national governments and international organizations, sets off a process of globalization which goes beyond the normative structure of current international arrangements. Over time, the episodic character of non-state actors' participation in human rights law-making and law-enforcement processes may develop into a pattern and eventually achieve a dynamic stability. As to coordination, it may be necessary to achieve a satisfactory level of efficacy. For instance, the coordination of different NGOs in the negotiating

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process of the UN Convention on the Rights of the Child ensured a much greater influence on the intergovernmental working group which prepared the draft treaty. In other instances, coordination may not be necessary. When NGOs are engaged in investigative procedures with the aim of disclosing human rights violations or when the mobilization of wide sectors o f the

public is crucial for the exercise of pressure on state actors, the more actors participating in the collection and subsequent diffusion of relevant information the better. Under specific circumstances, however, some degree of coordination may be compelling. The discrete character of many inspections carried out by the ICRC in places of detention may be fundamental to ensuring the cooperation of the state involved. Should other groups act in a more overt and hostile manner towards that state at the same time, the protection of detainees may be jeopardized. One final remark on coordination is in order: if one accepts the idea that independent judges (Jones, 1991) sitting on international andlor domestic courts may play an active role in the protection of individual rights regardless of their allegiance to domestic legal systems, than the osmosis occurring in the European context between international and national courts in the field of human rights might be of note. As is known, nothing in the constitutive treaties of the European Community provided a legal basis for the development of a doctrine of human rights. Nevertheless, the ECJ, with the decisive contribution of some national courts, developed such a doctrine over the years by resorting extensively to the concept of implied powers. It did so by drawing on the general principles of Community law which were interpreted to include the protection of fundamental rights, inspired by the constitutional traditions common to the Member States (Hartley, 1988: 1 3 2 ) . Later ~ ~ the Court referred also to international treaties of which the Member States are signatories such as the European Convention on Human ~ i ~ h tThe s . judicially ~ ~ made doctrine of human rights elaborated by the ECJ (Francioni, 1992: 195 ff.) is now codified in Article F of the Maastricht Treaty. At present the interaction of national courts, the European Court of Human Rights and the European Court of Justice represents a highly integrated system of judicial control (JacquC, 1993) whose jurisprudence can be legitimately deemed to constitute a European public order of human rights which transcends national frontiers.

THE GLOBALIZATION OF HUMAN RIGHTS LAW VIA THE DYNAMICS OF A GLOBAL CIVIL SOCIETY: PROBLEMS AND PROSPECTS The inevitable breaking away from the old positivistic paradigm of state

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sovereignty and the changed relation of the individual to the state (D'Amato, 1987: 89) are the direct effect of the introduction of the human rights doctrine in international law and the necessary prerequisite for the development of a global law of human rights. It has to be conceded that the law of the international community is still state-oriented (Pisillo Mazzeschi, 1994: 65). However, states can no longer be regarded as its only subjects (Jennings and Watts, 1992, 11: 848). Non-state actors contribute to the production, interpretation and implementation of international norms either directly or indirectly. They have contributed also to highlighting a core of basic values and common concerns upon which to found a new normative framework. Even entities which would traditionally deserve the qualification of state actors, such as domestic courts, occasionally act to foster or implement normative values which do not necessarily coincide with the interests of states. Earlier attempts to advance a normative theory of international law as a set of decision-making processes influenced by a variety of actors (McDougal, 1960; McDougal et al., 1967) were perhaps too quickly dismissed on the ground that they lacked any empirical evidence of their validity (Johnston, 1988: 285). Some of those theories inspired by a policy science approach to normativity even postulated human dignity as the basic value of international society (McDougal et al., 1980; McDougal and Lasswell, 1985). It might be that times were not quite ripe to advance such ideas or that their presentation or their idealistic inspirational motive did not sound entirely convincing. Be that as it may, contemporary practice shows that international human rights law is better described as a process rather than as a set of normative prescriptions and that the range of entities that participate in it has expanded to include several non-state actors. The dialectic between state and non-state actors in the prospective shaping of a global human rights doctrine cannot be comprehended if one does not include in the spectrum of relevant participants an additional actor: public opinion. Long kept at bay by the Hegelian organicistic conception of the state, public opinion has come to the fore once more, due to the major changes that have recently taken place in contemporary societies. The increasing role of the media has caused policy- and law-making mechanisms to become increasingly influenced by public opinion. The quest for consensus and legitimacy by decision-makers causes any legal or political stance to be subjected to a prior evaluation of its foreseeable impact on the public. Given the somewhat indefinite character of public opinion, nongovernmental organizations that promote human rights can shape its perceptions and direct the ensuing reactions. In this respect NGOs and all the other actors already mentioned in this chapter may link up the demand5 of a prospective transnational civil society and the international law machinery in

which they have started playing a more active role. It is these actors that create our understanding of human rights and mobilize shame against states, sometimes independently of the existence of binding obligations under international law. By attracting media coverage and changing the information environment in which state actors operate they also tend to modify law-making, adjudication and enforcement processes. The efficacy of such pressure is enhanced and legitimized by its roots in a widespread sentiment that certain human values need to be protected. The contour of such a value judgement is difficult to define. It hovers over the edges of the legal, the political and the moral (Little, 1993: 82). Concrete examples of this interaction can be traced in the recent practice of the UN Security Council which has expanded its authority under Chapter V1I of the UN Charter to cover situations in which grave and massive violations of human rights are committed. The public outrage raised by the appalling media reports of the atrocities occurring in both Somalia and Rwanda (Luhmann, 1993: 574) promoted governmental actions and humanitarian interventions under the auspices of the United ~ a t i o n s . ~ ' Although the legality of the above practice. is doubtful if one .looks at the wording'of Chapter VII of the UN Charter,'its legitimacy in the' light of th& values and principles enshrined in the Charter can hardly be questioned. Similar considerations apply to the establishment by the Security Council of the international tribunal for the prosecution of crimes committed in the territory of the former ~ u g o s l a v i a .Were ~ ~ it not for the universal condemnation of the heinous crimes committed during the conflict and for their vast echo in the media, it would have been difficult to achieve the degree of international consensus which was necessary to establish the tribunal. It is no mere coincidence that, parallel to the establishment of the tribunal, negotiations on the creation of an international criminal tribunal were revived (Crawford, 1994). The explicit inclusion of rape in the list of international law crimes can also be seen as an achievement partially promoted by non-state actors. In particular, the interpretation of relevant instruments of the law of war by jurists and by such non-governmental organizations as the International Committee of the Red Cross has had a remarkable influence in favouring the explicit qualification of rape as a crime under international law (Meron, 1993). This peculiar process of interaction between traditional international law mechanisms and transnational social processes with the mediation of nonstate actors is a novel method of law-making and law enforcement and certainly one worth exploring (Banarjee, 1991: 178; Evan, 199 1 ; Conforti, 1991: 1 16). However, excessive reliance on public opinion for the creation of communicative processes, in which legal evaluations are made and concrete actions are taken on the basis of value judgements which transcend

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morals, law and politics, is not an exercise without risks. The somewhat amorphous character of public opinion and its particular resilience make it subject to fluctuation and manipulation. It can be used instrumentally for many different purposes to coerce states or international organizations to adopt a certain conduct or to opt for specific policy options which may not coincide with their stated purposes. Common sense suggests that the way information is gathered, processed and disseminated, thus changing the information environment in which state actors operate, is never a completely neutral process (Miiller, 1983: 145 ff.). The chances of creating coherent patterns of conduct and j,udgement, which are at the basis of any process of globalization, depend also on how consistently non-state actors will operate and on whether their action will be perceived as legitimate in the light of the goals they pursue. In the attempt to conceive of human rights as a fundamental element of a future global civil society several obstacles may stand in the way. The first one is concerned with the intellectual debate on their foundation (Shestack, 1984; Haarscher, 1991). It has been alleged that the lack of a commonly shared philosophical foundation upon which to promote a uniform interpretation might hamper any global or universal theory of human rights (contra TCson, 1985; D'Amato, 1993-4). Similarly, the apparently irreconcilable cultural differences existing in the international community could prevent the emergence of a set of shared values and ultimately thwart the globalization of human rights. It must be conceded that cultural preferences and political ideologies often influence a state's conception of what'human rights are. Prevailing Western notions of human rights as individualistic and inalienable may contrast with other cultural traditions which tend to favour non-adversarial notions of human rights, which are based rather on solidarity and the collective needs or religion (Mayer, 1991; Harries, 1991). The de facro universalization of human rights that materialized with the adoption of the Universal Declaration may help in overcoming this obstacle and shift the focus of analysis from foundation and justification to protection (Ramcharan, 1989). After all, '[s]uch collective international moral judgements presuppose some basic level of shared normative values' (Donoho, 1990-91: 357). Further, the wide participation in the lengthy negotiations that led to the adoption of the two UN Covenants represents the contribution of different political, ideological and religious systems to the elaboration of normative prescriptions which have been later accepted by the vast majority of states. The wide measure of consensus not only on general and abstract propositions but also on a minimum international standard of content attests to the feasibility of conceiving certain prescriptions as potentially global in character. Aa rightly pointed out


Globa1i:ation of Human Rights

399 203

(Hig~ins.1994: 96) the above objections are mainly advanced by states. As the T~enanmenSquare massacre and other tragic events show, governments claiming the practical impossibility of any global conception of human rights and their peoples may have divergent views on the substance and basic content of such rights. The above considerations partly apply also to the third objection that might be raised - namely the compelling need to specify which human rights can be the object of a process of globalization. How to set priorities and to resolve conflicts between conflicting values has been an item on the agenda of international law scholars since the very inception of the international human rights doctrine. The possibility of establishing a hierarchy of norms in international human rights law has been investigated and several criteria have been proposed for this purpose (Meron, 1986; Higgins, 1994: 98 ff.). It is not the aim of this chapter to put forward a solution to the above query, which has long been the object of scholarly debate. It suffices here to stress that the globalization of human rights law needs to be anchored in values that are sufficiently shared to be effectively fostered by a variety of transnational actors. International legal rules or standards may provide useful hints as to which values enjoy such a wide measure of consensus (Humana, 1992). To concentrate on those values may help promote transnational solidarities and ensure their effective protection (Galtung, 1992: 169). The way the above difficulties will be handled and possibly solved is decisive for the development of a future global law of human rights. The universalization of human rights via traditional international law-making mechanisms and their globalization via the dynamics of a transnational civil society need not be regarded as parallel processes of a different nature. In fact, they converge in that they both establish consensus on certain basic values of human dignity (Higgins, 1994: 96; Luhmann, 1993: 580; Henkin, 1992: 344; Nino, 1991: 37; Dworkin, 1977: 198) and create a communicative process whereby the conduct of states is evaluated on the basis of the binary code, legal/illegal. The acknowledgement of the existence of a variety of diverse legal discourses, loosely coordinated and interacting with one another, may very well clash with the orthodox canons of legal positivismrA theory of legal pluralism, however, may better explain the complexities of the contemporary international community which is already a global society - at least in aspirational terms. After all, it would not be the first time that structural changes in society and law are driven by the revolutionary force of ideals. The achievement of a global society may not be such a remote goal as it might appear. It is just a matter of gradually adjusting the conceptual tools with which we interpret the reality of the law of the international community to the changes that have already occurred (Schreuer, 1993: 470) and to the values that we want to foster. This is why the globalization of human rights

400



law is also an intellectual task. 'The good order of a self-ordering society' or Eunomia, as envisaged in the awesome portrait of a prospective international society recently drawn by an international law scholar (Allott, 1990: 420), or any other idea of a future global civil society needs to be built on values. To realize that human rights are one, and perhaps the most important, of such values and to acknowledge that any entity is entitled by law to participate in their fulfilment is already a way to materialize its advent.

NOTES The Universal Declaration of Human Rights was adopted on 10 December, 1948 by the General Assembly of the United Nations (Res 217, 111 1948). The text of the Declaration is reproduced in Human Rights. A Compilation of International Instruments, New York: UN Publications, 1988, 1 ff. International Covenant on Civil and Political Rights (see International Legal Materials, 6, 1967, 368) and International Covenant on Economic, Social and Cultural Rights (International Legal Materials, 6, 1967, 360). Adopted and opened for signature and accession by GA Res. 2200 A (XXI) of 16 December 1966. The former entered into force on 23 May 1976 and the latter on 3 January 1976. On consensualism or 'The dependency of international law on the will of states' see Schachter (1991: 9 ff.). A short summary of theories of states' consent as the basis of obligation in international law is provided in Higgins (1994: 13 ff.). The issue of consent is particularly relevant for customary law rules: see Charney (1985, 1989) and Armgio Ruiz (1988). Strong criticism of consensualist theories has been expressed by Koskenniemi (1989: 270 ff.; 1990: 20 ff.). The judgement of the Nuremberg international military tribunal of 1 October 1946 was published in American Journal of International Law 41, 1947, 172. See UN GA Res. 1/95, UN Doc. Al64lAdd.l (1947), 88. See Nationality Decrees in Morocco case, PCIJ Reports, Ser.B., No. 4.24. In this respect one notable example is the Iran-US Claims Tribunal in which individuals have legal standing and may invoke international law principles and rules (see Ait. V of the Declaration of the Government of the Democratic and Popular Republic of Algeria concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran reproduced in It~fernntionulLrgtzl Mnteriirls, 20, 1981,230). When the amending Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Machinery Established Thereby (see Interncrtional Legal Materials, 33, 1994,943) enters into force, individuals M ~ I be allowed to submit applications directly to the new Court without restrictions (see Arl. 34). Borcelontr Traction Light und Power Conlpan~Linlitrd, ICJ Reports, 1979, 32. Art. 53 of the 1969 Vienna Convention on the Law of Treaties (see Internntio~znlLegal Matrri~r1.s.8, 1969, 679) defines a pereniptory norm of general international law as 'a norm accepted and recognized by the international community of states as a whole a: a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character'. Art. 53 further stipulates that a treaty is void if i t conflicts with any such norm. 10 see Art. 19 of the International Law omm mission Draft Code on the Origin of Staie Responsibility: ILC Yearbook, 1980; 11, 27 et seq.


Globalization of Human Rights

401

205

11 See ibid., 1976, 11, 120. 12 The autonomy of the intemational human rights regime is also purported by other developments that have occurred in other areas of international law. For instance. as provided by Art. 60 of the Vienna Convention,on the law of treaties and by customary law, human rights provisions in humanitarian treaties may not be suspended or terminated in the case of a violation being committed by another party. More generally, customary law also prohibits resort to countermeasures which consist of a grave violation of human rights. In the field of reservations to treaty, it is reasonable to infer from recent developments in intemational practice that a particular regime is emerging which partly derogates from the general regime of customary law as codified in the Vienna Convention (Coccia, 1985; Cohen-Jonathan 1989; Marks, 1990). 13 UN GA Res. 46 (XXXIX 1984) in International Legal Materials, 23, 1984, 1027. 14 The text of the Convention is reproduced in ibid., 24, 1985, 535. 15 See ibid., 38, 1989, 1418. 16 For instance, it may be worth recalling that by h e terms of its statute only states may be parties in contentious proceedings before the International Court of Justice (Art. 34). The same Art. 34(2) provides that 'the Court, subject to and in conformity with its Rules, may request of public intemational organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative'. Art. 66 of the Statute regulates participation of states and international organizations in advisory opinions. According to Art. 69(4) of the Rules of Court a 'public international . (see American Journal of organization' is an international organization of. States Infernational Law,73, 1979, 748, at 770). 17 44 Eur. Ct HR (ser.A) [1981]. 18 Similar 1anguage.i~to be found in Protocol 11, Art. 36(2). 19 See Caprrano v. Italy, 119 Eur. Ct HR (ser. A) [1987]. 20 See CalefJ7 v. Italy and Vocaturo v. Italy, 206B-C Eur. Ct HR (ser. A) [1991]. See also Modinos v. Cyprus, 259 Eur. Ct HR (ser. A) [1993]. 21 Observer & Guardian v. United Kingdom, 216 Eur. Ct HR (ser. A) [1991], esp. para. 60; and Sunduy Times v. United Kingdom, 217 Eur. Ct HR (ser. A) [1991]. 22 Soering v. United Kingdom, 161 Eur. Ct HR (ser. A) [1989], para. 102. 23 258B Eur. Ct HR (ser. A) [1993], paras 42, 45, 62. 24 On the human dimension of the former Conference on Security and Cooperation in Europe (now Organization for Security and Cooperation in Europe) see, generally, Buergenthal, 1992. 25 See, for instance, the international codes of medical and psychiatric ethics devoted to the protection of persons from torture and psychiatric abuse: 'Report of the Task Force on Human Rights', American Journal of Psychiatv, 142, 1985, 1393, quoted in Wright (1989: 201, n. 66). 26 See, for instance, the American Society of International Law Interest Group on Human Rights. The Group publishes, at fairly regular intervals, a Newsletter which, besides providing useful information on the members' activities and on current developments in the field of human rights, promotes worldwide cooperation. 27 630 F 2d 876 (2d Cir. 1980). 28 Judiciary Act of 1789, ch. 20, para. 9(b), 1 Stat. 73, 77 (1789), codified at 28 USC para. 1350. 29 It was only on 2 April 1992 that the Senate of the United States gave its advice and consent to the ratification of the Covenant and on 8 June 1992 that the US deposited its instrument of ratification. The Covenant entered into force for the US on 8 September 1992. However, the US attached to its ratification a declaration whereby the Covenant is

402


206 Global Law Without a State considered as non self-executing. In other words, the Covenant will not create a private cause of action in US courts (see International Legal Materials, 31, 1992, 657). Criticism of the above declaration can be read in Paust (1993). 30 See ibid., 9, 1970, 101. 31 See, respectively, Art. 7 of the Covenant on Civil and Political Rights and Art. 5 of the American Convention. 32 113 S. Ct. 1471 (23 March 1993). 33 923 F.2d 1928 (1 1th Cir. 1991). 34 See, for example, Von Dardel v. Union of Soviet Socialist Republics, 623 F Supp. 246 (DDC 1985). 35 Suleiman Al-Adsani v. Government of Kuwait and others, Court of Appeal (Civil Division), 21 January 1994, in International Law Reports, 100, 1995,465. 36 In the case Letelier v. Chile, 488 F Supp. 665 (DDC 1980) (reproduced also in International Law Reports, 63, 378), the Court interpreted the discretionary act exception to the tort exception to immunity in the following terms: 'Whatever policy options may exist for a foreign country, it has no "discretion" to perpetrate conduct designed to result in the assassination of an individual or individuals, action that is clearly contrary to the precepts of humanity as recognised both in national and international law' (p. 673). 37 See Susana Sideman De Blake et al. v. The Republic of Argentina et a!., 965 F. 2d 699 (9th Circ. 1992) where the court discussed at length the argument based on the peremptory character of the international rule prohibiting torture which would make it prevail over other rules of international law such as state immunity. Eventually, the court was bound to dismiss it and grant immunity in the light of the unfortunate precedent of the US Supreme Court Argentine Republic v. Amerada Hess Shipping Co., 488 US 428, 109 S. Ct 683, 102 1. Ed. 2d 818 [1989]. 38 In order to-avoid the application of both state immunity and the act of state doctrine, courts have distinguished between official and unofficial public acts. In particular, they have held that in case of torture or other clear violations of fundamental human rights the relevant acts of a foreign state's organs cannot be qualified as official public acts. Similar reasoning can be traced in the following cases; Filartiga v. Pena Irala, 630 F. 2d 876 (2d Cir. 1980); Forti v. Suarez Mason, 672 F. Supp. 1531 (ND Cal. 1987) and Evans et 01. v. Avril, 8 12 F. Supp. 207 (SD Florida 1993). 39 See Stuuder v. City of Ulm, Case 29/69, [I9691 ECR 419; Internutionale Handelsgesellschaf, Case 1 1/70, [ 19701 ECR 1 125. 40 See Nold v. Commission, Case 4/73, [I9741 ECR 491; Huuer- v. Lmd Rlwitzhnd-Pjklz, Case 44/79, [ 19791 ECR 3727. 4 1 See Res. 794 of 3 December 1992 on Somalia and Res. 929 of 22 June 1994 on Rwanda. 42 See Resolution 827 of 25 May 1993 whereby the Security Council established the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991.

REFERENCES Alexyde, Levan (1981), 'Legal nature of jus cogens in contemporary international law', Recueil des Cours de l'Acad<mie de droit international de la Hope, 172, 219.


403

Allott, Philip (1990). E~lnorvia.Ne\.t. 0rrlt.r ,fiw o NOM-Wo1.1~1.Oxford: Oxford University Press. Arangio, Ruiz, Geatano (1988), 'Consuetudine' in Encidopedia Giuridicn, Rome: Istituto della Enciclopedia Treccani. Armstrong, James (1985), 'The International Committee o f the Red Cross and

political prisoners', I~lterrzatiormlOrgarri:ntiori, 39, 61 5. Armstrong, James (1986). 'Non-governmental organizations' in R.J. Vincent (ed.). Foreign Policy arid Hitrnnn Rights. Issues trncl Responses. Cambridge: Cambridge University Press, 243-60. Banerjee, Samir (1991), 'Role of public opinion and non governmental organizations for disputed UN resolutions and universal human rights values' in F. Barnaby (ed.), B~~ildirlg a More Deinocr-uric United Ncitions. London: Frank Cass & Co, 177-9. Bassiouni, Cherif M. ( 1992), Crimes Agciinst Huiimiih in lntern~tior~al Criminnl k i w , Dordrecht/London/Boston: Nijhoff. Bettati, Mario and Dupuy, Pierre-Marie ( I 986), Les O.N.G. cJt16, Droit Iilternarior~c!l, Paris: Economica. Bianchi, Andrea (1994), 'Denying state immunity to violators of human rights'. Austriclrt Journal of Public and Iilterrzational Lnw, 46, 195. Bobbio, Norberto (I 99 I), L'eta dei diritti, Turin: Einaudi. Bodansky, Daniel (l991), 'Human rights and universal jurisdiction' in M. Gibney (ed.), World Justice? U.S. Courts and International Human Rights, Boulder: Westview Press, 1-22. Brandt, Richard (1967), 'Ethical relativism' in The Encyclopedia of Philosophy, vol. 3, New York: Macmillan & Free Press, 75-8. Brett, Rachel (1993), 'The contribution of NGOs to the monitoring and the protection of human rights in Europe: an analysis of the role and access of NGOs to the intergovernmental organisations' in A. Bloed, L. Leicht, M. Novak and A. Rosas (eds), Monitoring Human Rights in Europe, Dordrecht: Nijhoff, 12 1-44. Brierly, James (1942), The Law of Nations, (3rd edn), Oxford: Oxford University

Press. Brownlie, Ian (1990), Principles of Public International Law, (4th edn), Oxford: Clarendon Press. Buergenthal, Thomas (1992), 'CSCE human dimension: the birth of a system' in Collected Courses of the Academy of European Law,-vol. I , Book 2, Dordrecht: Kluwer Academic Publishers, 163-209. Burley, Anne-Marie (1989), 'The alien ton statute and the judiciary act of 1799: a badge of honor', American Jounzal of lnteniational Law, 83, 46 1. Centre for Human Rights (Geneva) (1988), United Nations Action in the Field of Human Rights, New York: United Nations. Charney, Jonathan I. (1985), 'The persistent objector rule and the development of customary international law', British Yearbook of lnternntiotral Lnw, 56, 1. Charney, Jonathan I. (1989), 'Third state remedies in international law', Michigan D~teri~arional h w Jounzal, 10, 57. Charney, Jonathan I. (1993), 'Universal international law', Ainericarr Jourl~nlof li~ternrrtionalLaw, 87, 529.

Non-State Actors and Inte~xationalLaw

404

208

Global Law Without a State

Coccia, Massimo (1985), 'Reservations to multilateral treaties on human rights', Califontia Western International Lnw Journal, 15, 1 . Cohen-Jonathan, GCrard (1989), 'Les riserves h la Convention Europkenne des droits de l'homme', Revue gknkrale de droit international public, 93, 273. Conforti, Benedetto ( 1991), 'Humanit6 et renouveau de la production normative' in Hunzanite' et droit iizternarional,Mklanges Renk-Jean Dupuy, Paris. Crawford, James (1994), 'The ILC's draft statute for an international criminal tribunal', Anterican Journal of International Law, 88, 140. D' Amato, Anthony (1 987), Internntional Law: Process and Prospects, Dobbs Ferry, NY: Transnational Publishers. D' Amato, Anthony (1993-94), 'Letter from the chair: human rights interest group', Human Rights Interest Group Newsletter, 4, 1. Danilenko, Gennady M. (1991), 'International jus cogens: issues of law-making, European Journal of lnternational Law, 2,42. Detrick, Sharon (ed.) (1992), The United Nations Convention on the Rights of the Child. A Guide to the 'Travuux Prt!paratoires', Dordrecht/Boston/London: Nijhoff. Donoho, Douglas Lee (1990-91), 'Relativism versus universalism in human rights: the search for meaningful standards', Stanford Journal of International Law, 27, 345. Drzemczewski, Andrew (1987), 'The role of NGOs in human rights matters in the Council of Europe', Human Rights Law Journal, 8, 273. Dupuy, Pierre-Marie (1979), 'Action publique et crime international de 1'Etat: h propos de l'article 19 du projet de la Commission du droit international', Annuarie Francais de droit international, 25, 539. Dworkin, Ronald (1977), Taking Rights Seriouslv, Cambridge, MA: Harvard University Press. Evan, William M. (1 99 l), 'Human rights, the nation state and transnational law' in V. Ferrari (ed.), Proceedings of the International Congress of Sociology of Law for flze Ninth Centenary of the University of Bologna, Milan: Giuffrk. 327-43. Falk, Richard (1992), 'L'ordine mondiale tra diritto interstatuale e diritto , dell'~romo, dell'umaniti: il ruolo delle istituzioni di societh civile', P ~ c e diritti diritti dei popoli, VI, 9. Forsythe, David P. (1977), Hunmirarian Politics: the internntionnl Cornmitree of t l ~ cRed Cross, Baltimore, M D : Johns Hopkins University Press. Francioni, Francesco ( l992), 'Italy and the EC: the legal protection of fundamental London: Pinter, rights' in F. Francioni (ed.), Itnly and EC Membership El~rl~~ated. 1 79-90. Frowein. A. ( 1984), 'Jus cogens', Enqcloperlin c?f' Public Interrrr~tionnlLcr~.,10. 337.

Galtung, Johan (1992). 'The universality of human rights revisited: some less applaudable consequences of the human rights tradition' in A. Aide and B. Hagtvet (eds). Him~mRights in Perqwrive: A Globtrl A.ssrssment. Oxford: Blackwell Business. 152-73. Gaja, Giorgio (1981 ). 'Jus cogens beyond the Vienna Convention'. RL'cnirril~ l r s Col~rstlc I ' A c c ~ d h (iI~~ Jh i t intern(~tion(~l CIP / ( I H c I ~172. . 27 I .


405

Gaja, Giorgio ( 1989). 'Obligations eigrr ornnes. international crimes and jrrs c o p ~ n . ~ : a tentative analysis of three related concepts' i n J. Weiler et trl, Internrrtionrrl Crimes of State, BerlinINew York, 15 ff. Gomez Robledo, Antonio (198 1 ), 'Le jus cogens international: sa ghese, sa nature, ses fonctions', Rec~ceildes Coum cle 1 'Acad&;e de d&t ;ntrr-rznt;ormldr Ici H L Z ~ P , 172, 8. Haarscher, Guy ( 1991). 'Law. reason and ethics i n the philosophy of human riyhts' in W. Sadurski (ed.), Elhic~tlDimensions of'Le,yc~lTl~eor?,Amsterdam: Atlanta, 141-51. ~11 Hannikainen, Lauri (19881, Pereniptoy Norins (Jus Cogerls) irl I n t ~ n z ~ t i o 1 1LLIM': Historic~d De~elolmcnt, Critrricr, Present Sttrtus, Helsinki: Lakimiesliiton Kustannus. Finnish Lawyers' Publishing Company. n~I Righ1.s Prm./ic.c~. Flannum. Hurst (ed.) (1984). Grricle to I r ~ t ~ ~ r r r t i oH~~nirrn "liiladelphia: University of Pennsylvania Press. Harries. Richard (l991), 'Human rights in theological perspective' in R. Blackburn and J. Taylor (eds), H~rnicrn Rights ,for the 1990s. Legnl r r t d EtAiccrl Issr~es, London and New York: Mansell, 1-1 3. I fartley, Trevor ( l988), The Fouri&rions of E~tro/xvriCoininunity Low. (2nd edn). . . Oxford: lar rend on Press. Henkin, Louis (1992). 'Human rights and competing ideas' in E.G. Bello and B.J. Ajibola (eds), Essays in Honour of Judge Tnslin Olcrwole Elios, Dordrecht: Nijhoff, 3 3 3 4 4 . Higgins, Rosalyn (1985), 'Conceptual thinking about the individual in international law' in R. Falk, F. Kratochvil and S.H. Mendlovitz (eds), I~ztenzationalLntv. A Contenlporary Perspective, Boulder and London: Westview Press, 4 7 6 9 3 . Higgins, Rosalyn (1994), Problems crnd Process: Internatio~zalLuw and HOW We Use It, Oxford: Clarendon Press. Humana, Charles (1992), World Human Rights Guide, (3rd edn), Oxford: Oxford University Press. Jacqu6, Jean Paul (1992), 'The Convention and the European Communities' in R. St. J. Macdonald, F. Matscher and H. Petzold (eds), The European System jbr the Protection of Human Rights, Dordrecht, Nijhoff, 889 ff. Jaenicke, Gunther (1984), 'International public order', Encyclopedia of Public Ilzternational Law, Arnsterdam/New York/Oxford/Tokyo: North-Holland, 7, 314. Jennings, Sir Robert and Watts, Sir Arthur (eds) ( 1992), Oppenheim 5. Internntional Lnw (1992), (9th edn), Vols I and 11, Harlow, Essex: Longrnan. Johnston, Douglas (1988), 'Functionalism in the theory of international law'. Canadian Yearbook of l~zternarionulLmr, 26, 3. Jones, Lord Elwin (1991) 'Judicial independence and human rights' in R. Blackburn and J. Taylor (eds), Humnn Rights for the 1990s. Legnl and Ethical Issues, London and New York: Mansell, 43-8. Joyner, E. and Dettling, J. (1984), 'Cultural relativism and human rights', H~rman Riglrts Qriortel-ly. 6, 400. Kamminga, Menko and Rodley, Nigel S. (1984). 'Direct intervention at the UN: NGO participation in the Commission on Human Rights and its sub-conimission'

406


2 10 Global Law Without a Srare in H. Hannurn (ed.), Guide to International Human Rights, Philadelphia: University of Pennsylvannia Press, 186-99. Koskenniemi, Martti (1989), From Apology to Utopia. The Structure of International Legal Argument, Helsinki: Lakimiesliiton Kustannus, Finnish ~ a w ~ e rPublishing s' Company. Koskenniemi, Martti (1990), 'The politics of international law', European Journal of lnternational Law, 1, 1. Lauterpacht, Hersch (1951), 'The problem of jurisdictional immunities of foreign states, British Yearbook of International Law, 28, 220. Leary, Virginia (1979), 'A new role for non-governmental organizations in human rights. A case study of non-governmental participation in the development of international norms on torture' in A. Cassese (ed.), UN Law/Fundamental Rights. Two Topics in Intemational Law, Alphen aan den Rijn: Sijthoff & Noordhoff, 197-218. Lillich, Richard B. (1991), Intemational Human Rights. Problems o f h w , Policy and Practice, (2nd edn), Boston/Toronto/London: Little, Brown & Company. Little, David (1993), 'The nature and basis of human rights' in G. Outka and P. Reeder Jr (eds), Prospects for a Common Morality, Princeton: Princeton University Press, 73-92. Luhrnann, Niklas (1993), Das Recht der Gessellschafi, Frankfurt: Suhrkamp. MacCormick, Neil (1993), 'Beyond the sovereign state', The Modem Law Review, 56, 1. MacCormick, Neil and Summers, Robert S. (1991), Interpreting Statutes. A Comparative Study. Aldershot: Dartmouth. Marks, Susan (1990), 'Reservations unhinged: the Belilos case before the European Court of Human Rights', International and comparative Law Quarterly, 39,300. Mayer, Ann Elizabeth (1991), Islam and Human Rights. Tradition and Politics, Boulder and San Francisco: Westview Press, London: Pinter. McDougal, Myres (1960), 'Some Basic Theoretical Concepts About International Law', Journal of Conflicts Resolution, 4, 337. McDougal, Myres and Lasswell, Harold D. (1985), 'The identification and appraisal of diverse systems of public order' in R. Falk, F. Kratochvil and S.H. Mendlovitz (eds), International Law. A Contemporary Perspective, Boulder and London: Westview Press. McDougal, Myres, Lasswell, Harold and Chen, Lung-chu (1980), Human Rights and World Public Order The Basic Policies of an International Law of H~imurl Rights, New Haven and London: Yale University Press. McDougal, Myres, Lasswell, Harold and Reisrnan, Michael (1967), 'The world constitutive process of authoritative decisions', Journal of Legal Education, 19, 253. Meron, Theodor (1986), 'On a hierarchy of international human rights', American Journal of International Law, 80, 1. Meron, Theodor (1989), Human Rights and Humanitarian N o m s as Customary Law, Oxford: Clarendon Press. Meron, Theodor (1993), 'Rape as a crime under international humanitarian law', American Journal of lnternational Law, 87,424.


407

Mosler, Hermann ( 1980), The Infrmcrtiorl~rlSociety N.P( 1 Lcgd C ~ ~ i ~ i i l i ~Alphen ilit~. aan de Rijn: Sijthof & Noordhoff. Miiller. Jorg Paul (1983). 'Fundamental rights in democracy'. Hrrrli~riRights Lmt' Jour17u1, 4, 131. Nino, Carlos Santiago (1991), TIze Et1u'c.s of Hltrnarl R;gl?ts, Oxford: Clnrendon Press. Note (1990). 'Constructing the state extraterritorially: jurisdictional discourse. the national interest, and transnational norms', H~rrsordDrr~,Re~.iebr.,103, 1273. Paust, Jordan J. (1985). 'Draft brief concerning claims to foreign sovereign immunity and human rights: nonimmunity for violations of international law under the FSIA', Houston .lorrrnrrl qf Internntionnl LOW;8. 49. Paust, Jordan J. (19931, 'Avoiding "fraudulent" executive policy: analysis of non~ self-execution of the Covenant on Civil and Political Rights', Dr P L I Lclw Relliew. 42, 1257. Picone, Paolo (1983), 'Obblighi reciproci ed obblighi ergo otnnes degli Stati nel campo della protezione internazionale dell'ambiente marino dall'inquinamento' in V. Starace (ed.), Diritto intenzu:ionale e protezioize dell'an~bientemarino, Milan: Giuffit:. Pisillo Mazzeschi, Riccardo (l994), 'La dottrina pura di Kelsen e Irt realts del diritto internazionale contemporaneo', Diritto e Cultura. IV, 43. Posner, Michael H. (1994), 'The establishment of the right of nongovernmental human rights groups to operate' in L. Henkin and J.L. Hargrove (eds), Human Rights for the Next Century, Washington: American Society of International Law, 405-23. Ramcharan, B.G. (1989), The Concept and Present Status of rlte I~iternational Protection of Hurnan Rights. Forty Years After tlze Universal Declaration, Dordrecht/Boston/London: Martinus Nijhoff. Renteln. A. (1985), 'The unanswered challenge of relativism and the consequences for human rights', Human Rights Quarterly, 7, 5 14. Restatement Third of the Foreign Relations Law of the United States, (1987), St Paul, Minnesota: American Law Institute. Schachter, Oscar (199 1 ), International Law in Tlzeory cznd Practice, Dordrecht/Boston/London: Nijhoff. Schreuer, Christoph (1988), Stare Immunity: Some Recent Developments, cambridge: Grotius Publications. Schreuer, Christoph (1993), 'The waning of the sovereign state: towards a new paradigm for international law?', European Journal of hzrerizatiorzal Law, 4,447. Schwebel, Stephen M. (i991), 'Human rights in the World Court', Vcrnderbilt Journnl of Transnational Law, 24, 945. Shelton, Dinah (1994), The participation of nongovernmental organizations in Law, 88, international judicial proceedings'. Antericnn Jo~rrnalof I~~renintior?nl 61 1. Shestack, Jerome J. ( 1 984). 'The jurisprudence of human rights' in T. Meron (ed.), Hurltan Rights in I~zrernarionnlLaw: Legal crnd Po1ic.v Issues, Oxford: Clarendon Press, 69-1 05. ir I'illicite: rles Sicilianos. Linos-Alexandre (1990). Les r~crctionsd~~cenrr~crli.rPes

408


2 12 Globcrl Law Without n State contre-nzes~ot-esh In 1Jgitime dkfense, Paris: Librairie GCnCrale de Droit et de Jurisprudence. Sieghart, Paul (1 99 I), 'International human rights law: some current problems' in R. Blackburn and J. Taylor (eds), Hunran Rights for the 1990s. Legal and Ethical Issues, London and New York: Mansell, 24-42. Sikkink, Kathryn (1993), 'Human rights, principled issue-networks, and sovereignty in Latin America', International Organization, 47, 41 1. Sobrino Heredia, JosC M. (1990), 'La determinacibn de la personalidad juridica de las organizaciones internacionales no gubemamentales' Revisra Espafiola de Derecho Inrernncional, 42, 10 1. Sunga, Lyal (1992), Individual Responsibility in International Law for Serious Hunran Rights Violations, Dordrecht/London/Boston: Nijhoff. TCson, Ferdinand0 (1985), 'International human rights and cultural relativism', Krginia Journal of International Lnw, 25, 869. The Work ofthr hternationnl Lnrv Conii~rission( 1 988), (4th edn). New York: United Nations. Thoolen, Hans and Verstappen, Berth (1986), H~rnzanRights Missions: A Study of Organizations, Dordrecht: the Fmt-Finding Prnctice uf Non-Go~)errznze~zt~~l Nijhoff. Weil, Prosper (1983), 'Towards relative normativity in international law?', Americon Jo~rrnalof International Lnrv, 77, 4 13. Weiler. Joseph, Cassese, Antonio and Spinedi, Marina (1989), Intel-narional Crimes of Stair. A Critical Appraisal ofthe ILCS Drcrft Article 19 on State Respoiisibility, BerlinfNew York: de Gruyter. Weissbrodt, David (1984), 'The contribution of international non-governmental organizations to the protection of human rights' in T. Meron (ed.), H~rinanRights in Intern~ltionalLncv, Oxford: Clarendon Press, 403-38. Willets, Peter (1 982), 'The impact of promotional pressure groups on global politics' in Pressrrre Groups in the Global System, London: Pinter. Wiseberg, Laurie S. (1991), 'Protecting human rights activists and NGOs', Hrrnlnn Rights Quurterly, 13, 524. Wiseberg, Laurie S. and Scoble, Harry M. (1979), 'Monitoring Human Rights Violations: the Role of Nongovernmental Organizations' in D.P. Kommers and G.D. Loescher (eds), Hrrmnn Rights and Anrericon Foreign Poliq, Notre Dame, Ind.: Notre Dame University Press: 175-208. Wolf. Francis (1984), 'Human rights and the international Labour Organization' in T. Meron (ed.). Hwnirn Rights in Intrnmrionul Lcirt*: Legd irnd Polic:\v Issrtrs. Oxford: Clarendon Press. 276-305. Wright. Mnrcheta L. (1989). 'Professionals' associations and the protection of human rights', Sri Lmku Jortrncrl of I/ltenlntionul h r v , 1, 183.

Part IV Non-state Actors' Accountability: The Quest for New Paradigms

The Changing International Legal Framework for Dealing with Non-State Actors AUGUST REINISCH*

1. INTRODUCTION Individuals are held civilly liable before national courts for genocide and humanitarian law violations.' Transnationally operating corporations may equally be held liable for human rights abuses by courts in various c o ~ n t r i e s Firms .~ are boycotted by consumers because they or their subsidiaries or even contractors do not comply with basic labour standards in foreign production The acts of international organizations are annulled by international courrs for infringing human rights guarantees of individual^.^ Lending decisions of international financial institutions are reconsidered if they would have a demonstrable negative human rights impact.5 These examples are evidence of a radical change of the way we are dealing with human rights issues today. Human rights seem to be everywhere. But are we still talking about traditional 'human rights law'? Where are the good old days when everyone knew that human rights violations can only be committed by states against individuals? Do 'human rights' provide the correct conceptual framework for the problem areas outlined above? These questions are intrinsically linked to the fact that international as well as national lawyers have traditionally been trained to conceive of human rights as * Participants at the Academy of European Law session at which these lecmres were originally given were very helphl. I am further grateful for the comments made to an earlier version of this paper by Hanspeter Neuhold and Karl Zemanek. I dm also very much indebted to Solveig Kaspar who provided valuable research assistance. This Chapter was finalized in autumn 2002. See the US civil action of Kadic v. Karadzic. infia note 255. See the human rights cases brought, in particular, before US, UK and other Common Law courts. For a discussion see Ralph G Steinhardt, Chapter 6 in chis volume. See the consumer boycotts referred to infa at note 162. See the fundamend rights case-law developed by the ECJ infia note 236. See the reports of the Word Bank Inspection Panel infia at note 77.

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fundamental guarantees and standards of legal protection for individuals against the power, and particularly, against the abuse of power, of states. Over the last half-century, human rights lawyers have fought for and have largely attained general acceptance that these guarantees are not merely contingent rights conferred by the goodwill of sovereign states (with the implication that they can always be taken away again). Instead, a shared understanding has developed that they are inherent and inalienable rights which, leaving aside all the philosophical problems of this concept, at least means that they are no longer at the disposal of states, but form part of international law giving rights and entitlements directly to individuals6 However, these developments have not affected the basic conceptual premise that human rights are limitations of state power, that they apply in the public sphere, and that they protect the (weak) individual against the (strong) state. The introductory examples seem to indicate, however, a radical conceptual change in the way we use and think about human rights. Immediately, a number of theoretical and practical trends come to mind as possible causes of this change: the questioning of the publiclprivate divide: the debate on 'third-party effects' or Driztwirkung of human righw8 the 'good governance' discussion,' and the transfer of powers from states to non-state actors, be it through privatization or by shifting powers to international organizations.10All these are interrelated developments on the level of legal doctrine, of social conditions, of political realities, and the like. They seem to have contributed to a new awareness of the need to protect human rights, beyond the classic paradigm of the powerful state against the weak individual, to include protection against increasingly powerful non-state actors.

2. WHAT IS A 'LEGAL FRAMEWORK'? What do we mean when we talk about a 'legal framework'? Are we talking about rules, about norms, laws, treaties, ethical standards, morality? Does it make sense to conceive of a legal framework as different sources of law? Or should we look at procedures and forums wherein we make legal arguments? Are we talking about political or legal processes? Is the framework defined by national or international courts, political bodies in international organizations, special accountability mechanisms, NGOs, the public, andlor the press? Probably, all of these elements constitute a 'legal framework' in a broad sense wherein we have to come to terms with non-state actors and their human rights See only Rosalyn Higgins, Problems m d Process: InternationaI Law and How We Use it (1994) 96. Feminist Perspective on Human Rights', in Kathleen Mahoney and P. Mahoney (eds), Httman Rights in the Twenty-First Cennoy (1993) 21. "ee lngo von Miinch, Pablo Salvador Coderch, and Josep Ferrer i Riba (eds), Z ~ r rDrittwirkungdrr (1998). See also i12fi.n text at note 169. Grurrd~ecl~te "ee in@ text at note 70. 10 See infix text dt note 195.

' For a feminist critique, see Catherine MacKinnon, 'On Torture: A

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'performance'. Without entering a deeper debate about how to understand, to define and construct, or even deconstruct the notion of a legal framework, I propose to look at a number of elements that are generally considered to form, at least part of, a legal framework: (1) t h e s t a n d a r d s o r behavioural rules themselves, substantive rules i n an

old-fashioned diction; (2) the procedures used in discussing, supervising, and maybe even enforcing

compliance with standards; and finally (3) the institutions, forums, networks, etc. within which procedures are activated to invoke the standards. The traditional instruments under international law, setting standards for human rights protection, were treaties binding the respective contracting parties.11 This standard-setting was accompanied by an increased concerted effort on the part of international organizations and human rights bodies to develop the concept of unwritten human rights law (via customary law or general principles). Under the so-called 1235 and 1503 pocedures12 the UN ECOSOC (and thereby the Human Rights Commission) has assumed powers with regard to 'a consistent pattern of gross and reliably attested' human rights violations even in the absence of any treaty vio~ations.'~ The International Court of Justice (ICJ) has held that the Universal Declaration of Human Rights constitutes at least partly customary international law.14 By and large the human rights discourse was based on the traditional sources of international law as referred to in Article 38(1) of the Statute of the ICJ." 11 Standard-xning via treaty law led, on the universal level, to the two 1966 UN Covenants and to a number of special UN human rights trcatics: International Covenant on Civil and Political Rights (ICCPR), GA. Res. 2200A (XXI), 16 December 1966, 21 U.N. GAOR Supp. (N0.16) at 52, U.N. Doc. M6316 (1966), 999 U.N.T.S. 171; the International Covenant on Economic, Social, and Cultural Rights (ICESCR), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. M6316 (1966). 993 U.N.T.S. 3; the International Convention on thc Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX),Annex, 20 U.N. GAOR Supp. (No.14) at 47, U.N. Doc. N6014 (1966), 660 U.N.T.S. 195; the Convention on the Elimination ofAll Forms of Discrimination Ag;unst Women, G.A. Res. 34/180,34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A134146 (1979), 1249 U.N.T.S. 13; the Convention Against Torture and Other Crucl, Inhuman, or Degrading Trcacmcnt or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A139151 (1984), 1465 U.N.T.S. 85; the Convention on the Rights of rhe Child, G.A. Res. 44/25, Annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. N44149 (1989), 28 ILM (1989) 1448 corrected at l 2 See infia text at note 22. 29 ILM (1990) 1340. " In addition to the fact that under both procedures UN organs investigate the human rights record of states in the absence of any submission by these states to the supervisory mechanism. l4 In the Tehran Huztagcs case the Court held '[w]rongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifesdy incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights'. United States Diplomatic and Consular Staff in Tehran (United States ofAmerica v. Iran), ICJ Reports (1980) 3, 42. l 5 See, however. the scholarly debates about the nature of human rights obligations as customary law andlor general principles of law: See Theodor Meron, Human Rights and Humanitarian Norms ns

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Today's human rights discourse is far more diverse.IGWe are using national law, voluntary codes of conduct, ethical standards, etc." to discuss and analyse state, but increasingly also non-state, behaviour. International organizations18 and ~ ~ 0 are expected more and more not only to advocate. human rights compliance by states, but also to abide by these same rules themselves. The same expectation arises vis-2-vis TNCS.~' The traditional procedures by which human rights issues were addressed were based on treaty obligations by which states agreed to have their human rights record debated, Curtomaty Law (1989); Martti Koskenniemi, 'The Pull of the Mainstream', 88 Michigan Law Rcvicw (1989190) 1952; Bruno Simma and Philip Alston, 'The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles', 12 Ausnalian Year Book of International Law (1992) 88. l 6 In this context Henry Steiner speaks of'an expanding framework of relevant norms': Henry Steiner, Business and Human Rights (1999) 11. " See i n j a text starting at note 29. l a International organizations are understood as inter-governmental organizations created by states (or other international organizations) usually on the basis of a treaty, endowed with a minimum of permanent organs, for the purpose of fulfilling certain common tasks. See C.F. Amerasinghe, Principb of the Institutional Law ofIntcrnational Organimtions (1996), 8. For present purposes, 'international organisations' indudes the group of highly integrated supranational organizations such as the EC and Euratom. l 9 NGOs are usually formed by private persons (individuals, bodies corporate) operating on a transnational level, but regularly associated under a domestic system of law. NGOs are frequently defined negatively by the fict that they are not established by states through a governmend agreement under international law. Cf. ECOSOC Res. 31, UN ESCOR, 49th Sess., Supp. No. I, at 54, U.N. Doc. El19961 96 (1996), stating that '[ajny such [ . . . ] international governmental organization that is not established by agreement shall be considered a non-governmentalorganization for the purpose of these arrangements'. In addition to the requirements of private foundation, international scope, and independence from state influence, there are further rypical features of NGOs, such as the requirement of a minimal organizational structure, of established headquaners, and a non-profic purpose. 'O There are no generally accepted definitions of TNCs (transnauonal corporations), MNCs (multinational corporations), or MNEs (multinational enrerprises). Various attempts have been made. According to the UN Draft Code of Conduct on TNCs, a TNC is an enterprise 'comprising entities in two or more countries, regardless of the legal form and fields of activiry of these entities, which operate under a system of decision-making, permitting coherent policies and a common strategy through one or more decision-making centres, in which the entities are sa linked, by ownership or otherwise, that one or more of them mav be able to exercise a sienificant influence over the activities " of others and, in particular, to share knowledge, resources and responsibilities with the others': Code of Conduct on Transnational Corporations, UN ESCOR, U.N. Doc. E11988139lAdd. 1 (1988). In the more recent Sub-Commission on the Promotion and Protection of Human Rights, 'Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Sec. 20, the term T N C 'refers to an economic entity operating in Rights', EICN.4lSub.2/2003/12lRev.2, more than one country or a cluster of economic entities operating in two or more countries-whatever their legal form, whether in their home country or country of activity, and whether taken individually or collectively'. The ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy defines multinational enterprises as 'enterprises, whether they are of public, mixed or private ownership, which own or control production, distribution, services or other facilities outside of the country in which they are based': International Labour Organisation, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (1977), 17 ILM (1978) 422, para. 6. The OECD used the term MNEs in a similar way. See also P.T. Muchlinski, M~rltinationalEnterprises and the Law (1995) 13.

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discussed, maybe scrutinized, and ultimately even held unlawful.21 This is accompanied by a gradual development of procedures: from 'weak' forms, such as an obligation to file state reports with a treaty body or to accept that individuals complain by way of 'communications', to a full-fledged judicial system with a direct right for

victims to bring claims against states. In addition, some international organizations were able to develop non-treaty based methods of exercising at least some form of human rights supervision (e.g. ECOSOC 1235~'and 1 5 0 3 procedures) ~~ by publicly or confidentially discussing human rights problems with states. The 'mobilization of shame' has also worked in other international organizations, such as the ILO.'* Today, the human rights compliance of non-state actors such as TNCs may be the subject of litigation before national courts, it may be a topic at shareholder meetings, or it may be extensively discussed in the media or addressed by NGOs in a campaign to stop certain labour practices. A far as the institutional framework is concerned, human rights issues were traditionally debated by the political bodies of international organizations. The development of more and more independent institutions, from expert organs, such as the Human Rights committeez5 or the Committee on Economic, Social, and Cultural ~ i ~ h ttos veritable , ~ ~ international tribunals, such as the European Court of Human Rights or the Inter-American Court of Human Rights, was a clear advance in strengthening human rights protection against stares. " See for the UN system Philip Alston and James Crawford (eds), Thc Fumrc of U N Human Rights Treay Monitoring (2000). 22 Economic and Social Council Resolution 1235 (XLII), 42 U.N. ESCOR Supp. -. (No. 1) at 17, U.N. Doc. El4393 (1967). According to this resolution ECOSOC '[a]uthotize[d] the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities [ . . . ] to examine information relevant to gross violations of human rights and fundamental freedoms', and to 'make a thorough study of situations which reveal a consistent pattern of violations of human rights'. 23 Economic and Social Council Resolution 1503 (XLVIII), 48 U.N. ESCOR (NO. 1A) ar 8, U.N. Doc. El4832lAdd.l (1970). In this resolution ECOSOC '[a]uthorize[d] the Sub-commission on Prevention of Discrimination and Protection of Minorities to appoint a working group consisting of not more than twenty-five mcmbcrs, with due rcgard to distribution, to meet once a year in private meetings [ . . . ] to consider all communications [ . . .] together with replies of Governments, if any, which appear to reveal a consistent pattern of gross and reliably attested violations of human rights and Fundamental freedoms within the terms of reference of the Sub-Commission'. O n the two procedures see Philip Alston, 'The Commission on Human Rights', in Philip Alston (ed), Thc U N and Human Rights: A Critical Appraisal (2nd ed. 2004). 24 JamesAvety Joyncc, 'Mobilization of Shame', in The New Politics OfHuman Rights (1978) 79. See aJso Peter R. Bachr, 'Mobilization of the Conscience of Mankind: Conditions of Effectiveness of Human Rights NGOs', in lylrctionr on Invntational L w j o m the Low Counmcs in Honour of Paul dc Waart (1998) 135. 25 Set up in accordance with Arts. 28 et stq. ICCPR, supra note 11. See Dominic McGoldrick, Thc Human Rights Commirtec ( 1 99 1). '6 The Committee on Economic, Social, and Cultural Rights was not set up through the ICESCR. rather it was established by ECOSOC resolution in 1985, Rcs. 1985117 (28 May 1985). See Matthou C.R. Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on its Development (1995); m d Philip Alston, 'The Committee on Economic, Social and Cultural Rights', in Philip Alston (ed), TIJCU N and Human Rights: '4 Critical Appraisal (2nd ed. 7004).

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Today we are confronted with a far wider panoply of institutions concerned with human rights, from national and international courts sitting in judgment over human rights violations committed by corporations or individuals, to accountability mechanisms, such as Inspection Panels of the World Bank and other international financial institutions (IFIS)," scrutinizing the human rights performance of international organizations, political bodies in international organizations, NGOs and their advocacy networks, the media, and the public at large. Change lies in broadening the legal framework, both in the sense of a wider scope of application of substantive norms of behaviour and in the sense of more and more diverse procedures and institutions available where substantive norms can be challenged. This also has repercussions on the way we practise and think about human rights law. Human rights is no longer the arcane sub-field of specialists of public international law, frequently even from other fields of the law such as (domestic) constitutional law. Rather, it has not only become a subject rooted firmly in international law but it has also developed into an increasingly densely interwoven part of international law which can no longer be theoretically or practically separated from the rest of international law.28

3. THE CHANGING FRAMEWORK I propose a rather modest start by trying to search for empirically observable elements of change. What kind of changes can be readily ascertained with regard to human rights and non-state actors? What are the most visible elements of human rights protection against infringements by non-state actors? This inquiry involves only the surface of change. I revert to deeper structural causes later. Let us first focus on two very visible developments: A. The more frequent and increasingly diverse use of codes of conduct addressed directly to non-state actors and B. The increased use of extraterritorial regulation by states of the behaviour of non-state actors. k Increased Use of Codes of Conduct The increased use of codes of conduct applicable to non-state, and especially corporate, behaviour could be seen as a new form of 'privatization' of human rights. Of course, the term 'privatization' is used here not in the sense of Drittlvirkung or 'third-party effect',29 but rather as an allusion to the increased self-regulation instead 27

See infia tort at note 77. See also on the 'intrusion' of human rights law into international law text m f a at note 184. As uscd by Andrew Clapham. Human Righrs in the Priuate Sphere (1993); Andrew Clapham, 'The Privarisation of Human Rights'. 1 E~rropeanHrtmrn Rights Ldw Reuirw (1995) 20. See also in& note 169. 18

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of state regulation. In this sense, 'privatization' of human rights means adopting human rights norms in the form of voluntary codes of conduct without state fiat. With codes of conduct we normally associate legally non-binding rules, usually adopted voluntarily by corporations in order to guide their operations. Their sub-

stance is not limited to human rights, where they may focus on labour and social rights. Rather, they may extend to environmental issues3o and shareholder intere s t ~ . ~But ' codes of conduct ate not only addressed to TNCs: there is a recent trend to extend this type of self-regulation to other non-state actors. The following discussion is structured according to different non-state addressees of codes of conduct.

I . Corporate Coda of Conduct Codes of conduct intended to regulate corporate, in particular TNC, behaviour are not a new phenomenon. In the 1970s, as a response to increased concerns over T N C interference with host state affairs, a first wave of codes of conduct was elaborated in the framework of various international organizations.32 The UN set up a Commission on TNCs, the UNCTC, which was mandated to draw up a comprehensive draft code was made public in 1 9 8 4 . However, ~~ due code of conduct for T N C S . A ~~ to intense controversy surrounding the project, which in many respects suffered from the ideological controversy concerning the New International Economic Order, the UN abandoned its efforts to create such a code of conduct in 1993. In 1994 the Commission on Transnational Corporations became the Commission on International Investment and Transnational The OECD was more successll and produced a code of conduct in 1 ~ 7 6 ~which ' was revised 30 Valerie Ann Zondorak, 'A New Face in Corporate Environmental Responsibility: The Valda Principles', 18 Boston Collrge EnuironmentalAffairs L. Rev. (1991) 457. 3' Disclosure and transparency requirements in codes of conduct are typically aimed at protecting shareholder interests. 32 See on these early codes: Baade, 'Codes of Conduct for Multinational Enterprises: An Introductory Survey', in N. Horn (cd), Legal Problem of Co&s of C o n d z ~ a j Multi~tionaI r Enterprises (1980) 407; Jonathan I. Charney, 'Transnational Corporations and Developing Public International Law', Duke l a w journal (1983) 748; Norbert Horn, 'International Rules for Multinational Enterprises: The ICC, OECD, and ILO Initiatives', 30 American Uhiuersiry Law RNinu (1981) 923; Seymour J. Rubin, 'Transnational Corporations and International Codes of Conduct: A Study of the Relationship Between Legal Cooperarion and Economic Development', 30 American Uniuersiry Law RCuirw ' 81) 903. ECOSOC Res. 1913. UN ESCOR. 57th Sen., 5 December 1974, Supp. No. 1.3, U N Doc. 55701 Add. 1 (1975). 34 See United Nations Draft International Code of Conduct on Transnational Corporations, 23 ILM 626 (1984). See ECOSOC Res 199411, Integration of the Commission on Transnational Corporations into the institutional machinery of the United Nations Conference on Trade dnd Development, 14 July 1994, available at http:llwww.un.orgldocumentslecosoclresl1994/eres1994-l .htm. j6 Cf. Organization for Economic Cooperation and Development (OECD), Guidelines for Multinational Enterprises, 21 June 1976, reprinted in 15 ILM (1976) 969.

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in 2000.~' In 1977, the ILO adopted a 'Declaration of Principles' addressing labour rights and T N C S . ~Traditionally, ~ these codes of conduct were formulated in the framework of international organizations by state representatives or at least under the control of states and were addressed to non-state actors, primarily to corporations. The UNCTC, OECD, and ILO codes are examples of this approach. This international organization-driven formulation and adoption of codes of conduct was succeeded by a generation of private-initiative codes such as the ~ u l l i v a nand ~ ~ the MacBride ~ r i n c i ~ l e s ,the ~ ' Slepak the Miller ~ r i n c i ~ l e s : the ~ Maquiladora Standards of and others.44 Most of these codes, that were very specifically tailored for specific countries and situations, were promoted by highly visible political figures. Trade unions also became more and more involved in the production of such codes. The 1997 'Basic Code of Conduct covering Labour Practices' of the International Confederation of Free Trade is an example. Today we are witnessing a trend towards self-regulation, largely motivated by the wish of TNCs to escape the defensive position in which they found themselves afrer consumer boycotts and litigation. Many recent corporate codes of conduct have been adopted by TNCs themselves~%equently with the collaboration of NGOs. " OECD, Guidelines for Multinational Enterprises, Rwision 2000, htrp:llwww.oecd.orgldafl investmendguidelineslindex.htm;see Steinhardt, rupra note 2, [34-351. 38 International Labour Organization (ILO) 'Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy' 16 November 1977, reprinted in 17 ILM (1978) 423. See also the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up, adopted by the International Labour Conference at its 86th session, Geneva, 18 June 1998, analysed by Steinhardr, rupra 39 See Steinhardt, supra note 2. note 2, at 203-204. 40 The MacBride Principles are nine principles named after the late Scan MacBride in November 1984, aimed at eliminating anti-Catholic discriminarion via U.S. companies doing business in O n both the Sullivan and the Northern Ireland: h~p://wl.umn.edu/humanin/~inks/macbride.htm. MacBride Principles see Christopher McCrudden, 'Human Rights Codes for Transnational Corporations: Whar Can the Sullivan and MacBridc Principles Tell Us?', 19 O@rd Journal of Legal Studies (1999) 167. 4' The Slepak Principles are named after the Soviet emigri and human rights activist Wadimir Slepak, a member of the original Moscow Helsinki Monitoring Group. They were developed for American Jorge F. Perez-Lopa, 'Promoting Respect for companies doing business in the former Soviet Union. Worker Rights Through Business Codes of Conduct', 17 Fordbam Intcrnationallaw Journal (1993), 13. 42 The MilIer Principles were developed by U.S. Representative John Miller (R-WA), aimed at encouraging political freedom and liberalization with the People's Republic of China and Tibet. 43 The Maquiladora Standards of Conduct are directed at US TNCs operating production facilities in Mexico along the U.S.-Mexico border. See http:ilenchantedwebsites.comlmaquiladora/cjm.html. 44 See Lance Compa and Tashia Hinchliffe-Darricarrere, 'Enforcing International Labor Rights Through Corporate Codes of Conduct', 33 Columbia/. Tranmat'l L. (1995) 663; see also Steinhardt, supra note 2 at [5]. 45 Adopted by the ICFTU Executive Board (Brussels, December 1997). Available at http:// w.icftu.orgldisplaydocument.asp?Inde~91209513&hngu~e=ENand at http:liwww.itcilo.it/ english/actrav/teleam/globaliilolguidelic~uco.htm. 46 Scc the list of 'Self-Imposed Company Codes' in Proposed drat? human rights code of conduct for companies, Working paper prepared by Mr David Weissbrodt. Addendum. List of the principal source


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This corresponds with a declining role for international organizations. Sometimes the self-regulation is also carried out within the framework of more or less formal business organizations. The International Chamber of Commerce guidelines are an early example of this,*' the C a w Round Table Principles for Business are a more recent one.48 The UN has also shown renewed interested, with initiatives such as the Global Compact and the Working Group on the Activities of Transnational O n the regional level, too, international organizations have rediscovered codes of conduct. For instance, in the EU, under the label 'corporate social responsibility', the European Commission reacted to the European Parliament's call for a code of conduct for European ~ u l t i n a t i o n a l sby~ ~adopting a Green Paper on a European framework for 'corporate social responsibility',51 defined as 'a concept whereby companies integrate social and environmental concerns in their business operations and in their interaction with their stakeholders on a voluntary basis'.52 One of the purposes of such EU action is to develop a legally binding framework to address issues of verification and monitoring. It is exactly such problems of the supervision of compliance and enforcement of codes of conduct which have brought back the governments, at least as facilitators or negotiators. For instance, the US Fair Labor Association includes NGOs, lawyers, and government representatives.53In the UK, materials for the draft code of conduct for companies, U.N. Doc. EICN.4/Sub.2/2000/WG.2/WP.1/ Add.2 (25 May 2000). 47 Intmtional Chamber of Commcrrc (ICC) 'Guidelines for International Investment', ICC Pub. No. 272 (1972). 48 The Caux Round Table Principles for Business wereissued in 1994 by senior business leaders from Europe, Japan, and North America 'to express a world standard against which business behavior can be measured.' See http://www.cauxroundtable.org/ENGLISH.HTM. 49 The Global Compact was launched by Secretaty-General Kofi Annan in 1999, Address at the World Economic Forum in Davos, Switzerland (31 January 1999), U.N. Doc. SGlSMl6448 (1999). Information on The Global Compact is available at http:/lwww.unhchr.chlglobal.hun and http:ll www.unglobalcompact.org./. O n 13 August 2003 the UN Sub-Commission on the Promotion and Protection of Human Rights approved and transmitted for adoption to the UN Human Rights Commission the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, E/CN.4ISub.212003/12/Rev.2, available at http:/lwww.unhchr.ch/pdf/55subll2rev2AV.pdf. See Weissbrodt and Kruger, infa Chapter 8. 50 European Parliament (EP), Resolution on EU standards for European Enterprises operating in developing countries: towards a European Code of Conduct, adopted on 15 January 1999, Resolution A4-0508198 of 1998, OJ C 1041180, 14 April 1999. http:l/europa.eu.indeur-lex/pri/en/ojI dat/1999/c~104/c~10419990414en01800184.pdf. 5 1 Commission of the Europeari Communities, Green Paper: Promoting a European Framework for Corporate Social Responsibility, COM (2001) 366 final, 18 July 2001. http:lleuropa.eu.int/eur-led en/com/gpr12001lcom2001~0366en01.pdf.See also in more detail Olivier De Schutter. 'The Accountability of Multinationals for Human Rights Violations in European Law', in+ Chapter 7. 52 Green Paper, supra note 51, para. 20. 53 See hrrp:llwww.fairlabor.org/.Cf. David Kinley, 'Human Rights as Legally Binding or Merely Relevant?', in Stephen Bottomley and David Kinley, CommcrcialLw andHumun Rights (2002) 25, at 34.


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the 'Ethical Trading ~ n i t i a t i v e is ' ~ 'supporting ~ collaboration between business and the voluntary sector in promoting ethical business, including the development of codes of conduct and ways of monitoring and verifying theses codes'.55 Modern codes of conduct clearly focus on TNCs. They have received most public attention and they form the majority of the proliferating field of codes of conduct. Less noticed is the fact that other non-state actors also seem to have been addressed by codes of conduct. 2. Codes o f Conduct for International Organizations Though not usually called 'codes of conduct', international organizations have also increasingly been addressed by (strictly not legally binding) codes that include human rights norms. At first sight, this may seem an odd development. International organizations have now clearly been accepted as subjects of international law.56 Thus, one would rather expect a discussion on whether, in the absence of any treaty law obligation, unwritten human rights norms are legally binding on them. This question has indeed been at the centre of the discussion about the human rights obligations of international organizations for quite some time.57 It was most prominently addressed in the context of the question whether the European Communities are legally bound to respect fundamental rights. It also played an important role with regard to the issue whether UN forces had to comply with the humanitarian rules enshrined in the Geneva Conventions. The underlying tenor of recent developments appears to be that international organizations, as a result of their international legal personality, are considered to be bound by general international law, including any human rights norms, that can be viewed as customary law or as general principles of law. Still, there seems to be enough uncertainty in this area to leave room for voluntary guidelines. The UN's 'voluntary' adoption of its own humanitarian law rules, applicable in UN military operations, may be regarded as an example of human rights-relevant self-regulation by an international organization. In 1999 the U N Secretary-General unilaterally promulgated 'fundamental principles and rules of international humanitarian law applicable to United Nations forces conducting operations under United Nations command and control.'58 This initiative followed years 54 The Ethical Trading Initative was formed in 1997 as an alliance of companies, NGOs, and trade unions operating in the UK, whose aim is to improve labour conditions in the global supply chains which produce goods for the UK market. See http:llwww.erhicdtrade.org/ and h t t p : l l w . eti,org.uk. 55 White Paper, Eliminating World Poverry: A Challenge for the 2lst Century. Cmnd 3789 at 64 (1997), http:l/www.dfid.gov.uk/PoliceAndPrioritici/files/whitepaper1997.pdf, cited in McCcudden, supra note 40, 169. 56 See only Malcolm N. Shaw, International Law (4th ed., 1997), 190. 57 Cf. August Reinisch, 'Securing the Accountabiliry of International Organizations', 7 Global Gouemance (2001) 13 1. Observance by United Nations forces of international humanitarian law, United Narionr, SecretaryGeneral's Bulletin, STISGB11999113, 6 August 1999, reprinted in 81 Intl Rev. Red Cross. No. 836. December 1999. 812: 36 ILM 1656 (1999). See, on the bulletin in general. Daphna Shraga. 'UN

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of legal uncertainty about the relevance of the Geneva Conventions for UN operations.59 Though being a very special case, one might also draw a parallel to the development of human rights protection within the European Union. In the early stages of human rights protecrion against the acts of the supranational European Cornmunities one finds the voluntarily adopted 1977 joint declaration by the European Parliament, the Council, and the Commission to respect human rights in any legislative act."' By this declaration the three institutions pledged to respect these rights in the exercise of their powers under the EC ~reaty." Much of the need to guarantee fundamental rights against Community action was accommodated by the judicially developed human rights protection of the ECJ. However, to some extent the recent, voluntary, 'solemn' declaration of the EU Fundamental Rights Charrer in 2000 may also be regarded as an example of a self-regulatory human rights code.62 Another example of a voluntary code for international organizations which includes human rights norms can be found in the standards for the 'Accountability of International Organisations' currently elaborated by the International Law Association (ILA), a private association of international lawyers.63 It is the ILA Committee's understanding of accountability to focus not only on the issue of Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage', 94 AJIL (2000) 406. 59 The Red Cross has repeatedly called for formal adherence by the United Nations to the Geneva Conventions. The UN's official view, however, has always been that 'the United Nations is not substantively in a position to become a party to the 1949 Convcntions, which contain many obligations that can only be discharged by the exercise of juridical and administrative powers which the Organization does not possess, such as the authority to exercise criminal jurisdiction ovcr members of the Forces, or administrative competence relating to territorial sovereignty. Thus the United Nations is unable,to fulfil obligations which for their execution require the exercise of powers not granted to the Organization, and therefore cannot accede to the Conventions': Legal Opinion of the Secretariat of the United Nations, 'Question of the Possible Accession of Intergovernmental Organizations to the Geneva Conventions for the Protection of War Victims', UN Juridical YB (1972) 153. 60 Joint Declaration by the European Parliament, the Council, and the Commission on Fundamental Rights of 5 April 1977, OJ C 103, 27 April 1977. Available at http:lleuropa.eu.int/eur-leu/cnltreatiesl selected/livre602.hrmL The declaration contains the following nvo operative paragraphs:

1 The European Parliament, the Council and the Commission stress the prime importance they attach to the protection of Fundamental rights, as derived in particular from the constitutions of the Member States and the European Convention for che Protection of Human Rights and Fundamental Freedoms. 2 In the exercise of their powers and in pursuance of the aims of the European Communities they respect and will continue ro respect these rights.'

'" The Charter of Fundamental Rights of the European Union was solemnly proclaimed at the meeting of the European Council hcld in Nicc from 7 to 9 December 2000. Available at http:llue.eu.int/ df/default.asp?lang=en. O3 See the ILA Committee on Accountability of International Organisations which first met at rhc 68th IW Conference 1998 in Taipei, ROC, in Internarional Law Association (ed), Rrport ofthr 68th Confireme (19981, i 8 4 : 1 W Commirtee on Accountability of International Organisations. Second Report, in

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securing accountability by way of procedures and remedies. Rather, the Committee has initiated its work by drafting a set of recommended rules and practices applicable to international organizations in general.

3. Codes of Conductfor NGOs Some NGOs have come under public pressure for their activities. Criticism has been voiced with regard to conduct-sometimes violent street protests-attributable to or at least sponsored and advocated by some NGOs during world economic summits, WTO, World Bank, and IMF meetings, and on other occasions." 4 a response, some NGOs have not only publicly distanced themselves from such acts of violence, but have also adopted codes of conduct as evidence of their adherence to non-violent protests. For instance, the New Economics Foundation (NEF) adopted a code of conduct after the violent protests surrounding the G7 Genoa summit.65 According to the central provision of this 'code of conduct' the NGO pledges to set its 'actions within a framework of non-violence at all times'. A different background for a more critical attitude towards NGOs stems from sometimes questionable advocacy campaigns. NGOs may occasionally, with differing degrees of culpability, make inaccurate or even outright false statements about a potential environmental harm or social damage which, coupled with a threat of inciting consumer boycotts or the like, causes their targets to change behaviour in ways that are sometimes very costly. The controversy surrounding the Brent Spar is a case in point.GGvarious environmental NGOs, among them Greenpeace, .had claimed that scuttling an oil rig owned by Shell in the North Sea posed a serious ecological threat to the region. Despite the company's assurances to the contrary they demanded an expensive alternative of disposing of the oil platform. Subsequently, it turned out that most of the NGO allegations were incorrect. Shell did not recover the additional costs incurred. Incidents like Brent Spar raise a number of troubling questions concerning the accountability of NGOs. In particular, advocacy International Law Association (ed), Report ofthe 69th C o n f m c r (2000), 875. See also Karel Wellens, 'ILA Committee on Accountability of International Organisations', 1 Int'l L. Forum (1999) 107. DL 'Luddites, extremists and the "leftover left"; unaccountable interest groups that undermine the authority of elected officials; armchair radicals from the rich world who have no right to speak for the Third-World poor. Reactions to the recent Prague street protests confirmed that N G O bashing has become a favourite sport for government officials, business and the Press': Mike Edwards, Time to put the N G O House in Order, Finuncial Times, 6 June 2000. Available at htrp://fpc.org.uk~hotnews/writes.See also Lisa Jordan and Peter van Tuijl, Political Responsibility in N G O Advocacy Exploring Emerging Shapes of Global Democracy, Europe's Forum on International Cooperation (April 1998) available at

h~p:/lwww.globalpolicy.org/ngos/role/globdem/credib/2OOO/I117.htrn. 65 Available at hrrp:/lw.neweconomi~~~org/de~dt.asp!t=nrwsarchivc&strN~Re~uest= newsitem&intNewsID= 116. " Elizabeth A. Kirk, 'The 1996 Protocol to the London Dumping Convention and the Brent Spar', 46 ICLQ (1997) 957; Peter J. Spiro, 'New Global Potentates: Nongovernmental Organizations and the "Unregulated" Marketplace', 18 Cardow L w Review (1996) 957, at 964.

Nun-State Actors and International Law The Changing International Legal Framework NGOs have an immense interest in keeping and protecting their credibility, which is one of their most precious assets, comparable to the goodwill and reputation of business firms. Some NGOs have taken up the challenge and voluntarily adopted their own codes

of conduct. To date, NGOs express 'codes of conduct' focus on conduct relevant in the course of their advocacy. In the field of service provision too, equivalents of codes of conduct have been used.67 One only has to think of the legion of NGOs active in the field of emergency and disaster relief.68 In the course of UN and other international organizations subcontractingG9 they have partly taken over official tasks such as administrative hnctions. It is not difficult to imagine that in the course of such activities their actions may constitute what would be called a human rights violation if committed by a state.

4. Common Background and Motivation for Codes of Conduct Some tentative conclusions as to the origin and shared background of these ethically inspired codes of conduct may be drawn. It appears that all these codes are to some extent a result of the 'good governance' debate which appeared under different guises on different levels but which still seems to have enough in common to be identified as a single phenomenon. Similar developments have taken place at different levels, which enable us to identify certain core elements of any good governance debate, such as the emancipation of the governed, accountability, transparency, and participation. The demand for good governance was initially made of states, calling for open and transparent administration, accountability, and the rule of law.70 Under the auspices of the international financial institutions, 'good governance' was demanded of borrowing governments. The underlying idea was a growing awareness that a stable and functioning framework would be a crucial element for enhancing

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See the Codes of Conduct of the International Red Cross (Principles of Conduct for The International Red Cross and Red Crescent Movement and NGOs in Disaster Response Programmes) or the Australian Council for Overseas Aid (Code of Conduct for Non Government Development Organisations). Available at http:l/www.ifrc.org/publicat/conductlcode.asp.and http://www.acfoa. asn.aulcodelcode.PDF. G8 See Ralph Wildc, 'Quis Custodict lpros Cusrodes? Why and How UNHCR Governance of "Developmeni Refugee Camps Should be Subject to International Human Rights Law'. 1 Yak H.R. 8. Drv. L.J. (1998) 107, at 109. 69 Cf. Thomas G. Weiss (ed), Btyond UN Subconnarring Task-sharing with Regional Sccuriy Arrangnnents and Service-providing NGOs (1998). 70 The ILA Committee on Accountability of International Organisations. Second Report, lists the following characteristics as elements of good governance: 'transparency in both the decision-making process and the implementation of the ensuing institutional and operational decisions; a large degree of democracy in the decision-making process; access to information open to all potentially concerned and/or affected by the decisions at stake; the well-functioning of the international civil service; sound financial management; dnd appropriate reporting and evaluation mechanisms': supra note 63, at 878.

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long-term development, as well as repayment capabilities.71 Thus, the IMF and the World Bank started to advocate certain non-economic reforms, initially with a narrower focus, such as the development of an independent judiciary and the fight against corruption,72 then more broadly demanding modernization of the state, consolidation of democratic institutions, protection of human rights and the environment, and social policy reform.73 By the mid-1990s 'good governance' had become an important area of attention for the IMF.~*At the regional level, the debate about EU accession and its political preconditions, as laid down in the 'Copenhagen criteria',75 can also be viewed as a 'good governance' issue. Once the 'good governance' box was opened, its demands could not be limited to states. lncreasi'ngly, international organizations were also confronted with requests for 'good governance'.76 As institutional responses, again under the guidance of the international financial institutions, Inspection Panels were set up, first by the World Bank and subsequently by other development banks.77 Other organizations, such as the EU, created ombudsman offices7' in order to rectify instances of rnaladministration, the opposite of 'good governance'. Also at the universal level, organizations can no longer avoid being questioned about their governance. In the wake of the , ~ ~UN has undertaken report of the UN Commission on Global ~ o v e r n a n c e the " Michel Camdessus, 'Toward a Second Generation of Structural Reform in Latin America', Presentation at the Annual Confrrrncc of the Nationa1 Banks Amciation, Buenos Aires (1997). http:ll www.imf.orglexternallnp/speeches/1997/mds9706.htm. See also Diana Tussie and Maria Pia Riggirozzi, 'Pressing Ahead with New Procedures for Old Machinery: Global Governance and Civil Society', in Volker Rittberger (ed), Global Govonance and the United Nations System (2001) 158, at 168. 72 See World Bank. Helping Countries Combat Corruption: The Role of the WorH Bank (1997), hnp:/lwwwl.worldbank.orglpublicsectorlanticor~ptlcorruptnlcori&.htm.See also Carlos Acufia and M. Fernanda Tuozzo, 'Civil Society Participation in World Bank and Inter-American Development Bank Programs: The Case of Argentine', 6 Global Govcmance (2000) 443. 73 See K. Ginther, E. Denters, and Paul J.I.M. de Waart (eds), Surtainabfe Dcuelopmcnt and Good Govcrnancc (1995). 74 International Monetary Fund, Good Governance: The IMF's Role (1997). Available at hcrp:ll www.imf.orglexternallpubs/ftIe~rpl~overnlgovern.pdf. 75 The 1993 Copenhagen criteria require, inter alia, stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorides; the existence of a functioning market economy as weU as the capacity to cope with competitive pressure and market forces within the Union; the ability to take on the obligauons of membership including adherence to the aims of polidcd, economic, and monetary union. See hnp:/leuropa.eu.intlcomm/enlargementlintmlc~teria.hm. 76 World Bank, Waprnhans Report (1992). The World Bank Inspection Panel was set up in 1993 to provide an independent forum to private citizens who believe that they or their interests have been or could be directly harmed by a project financed by the World Bank. See Steinhardt, supra note 2 at (32-331. See Katja Heede, European Ombudrmnn: Rcdress and Control at Union Level (2000). See also Linda C. Reif (ed), The Intonational Ombudtman Anthology: Sclected Writingr f;om the international Ombudtmun Institute (1999). 7"he Commission on Global Governance was established in 1992 and produced its main report entitled 'Our Global Neighborhood' in 1995. For information on the Commission see hnp:ll www.cgg.ch/.

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Non-State Actors and International Law The Changing International Legal Framework a number of ad hoc reports to scrutinize its own governance record, for instance, in the field of peacekeeping.80 Most directly linked to the issue of codes of conduct for TNCs is the 'corporate governance' debate," nowadays, partly filled with new content, frequently termed as 'social responsibility' d i s c u s ~ i o nThe . ~ ~ debate on the role of corporations and their ethical standards has clearly gone beyond the famous Milton Friedman assertion that the 'only social responsibility of business [is] to increase profits'.83 Even if the 'generation of long-term economic profit' is still considered to be a 'corporation's ~~ 'good governance' clearly requires the balancing of primary ~ b j e c t i v e ' ,corporate all stakeholders' interests, 'stakeholders' being understood as all those who may affect and be affected by a corporation, including investors, employees, creditors, customers, and suppliers.85 But the question remains, if one enlarges the group of stakeholders in corporations beyond the narrow confines of shareholders, how the See The Fall of Srebrenica, U.N. Doc. ,41541549 (15 November 1999), Report of the Secretaly General Pursuant to General Assembly Resolution 53/35; available at http:llwww.un.orglpeacel srebreniapdf. Report of the Rwanda Genocide (15 December 1999); available at hrtp://www.un.org/ Depts/dpkoldpko/reporrs.htm.See also the Brahimi report, Report of the Panel on United Nations Peace Operations, U.N. Doc. A155/305-S/2000/809 (21 August 2000); available at hnp://www.un.org/peace/ reports/peace-operations/. 81 See generally the journal Corporate Govrmancc: An Intrmational Review and Daniel Fischel, 'The Corporate Governance Movement', 35 Vandrrbilt Law Rrvicw (1982) 1259. 82 See only the EU Commission Green Paper Promoting a European Framework for Corporate Social Responsibility, supra note 51. See also United Nations Conference on Trade and Development, The Social Responsibility ofTransnational Corporations, U.N. Doc. UNCTADIITEIIITIMisc.21 (1999) at 6. See also Editorial, Corporate Governance, 'Institutional Investors and Socially Responsible Investment', 10 Corporate Goucrnancc An International Review (2002) 1; John Parkinson, 'The Socially Responsible Company', in Michael K. Addo, (ed), Human Rights Standards and thr Rcsponsibiliiy of Tranrnatiom/ Corporations (1999) 49. 83 The entire quotation is, of course, more encompassing: 'One and only one social responsibility of business [is] to increase profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud': Milton Friedman, Capitalism and Frcedom (1962) 133; see also Milton Friedman, 'The Social Responsibility of a Business is to Increase Profits', N. Y: Times, 13 September 1970 (Magazine) at 32; cited in UN Sub-Commission on the Promotion and Protection of Human Rights, Sessional working group on the working methods and activities of transnational corporations, Transnational Corporations and Other Business Enterprises, E/CN.4/Sub.2/2002/WG.2/ WP.l/Add. 1, 24 May 2002, 15. I. Millstein et al. (OECD Report), Corporate Goummncc: Improving Competitivcncssand Access to Capital in Global Markets (1998) 27. Michael K. Addo, 'Human Rights and Transnational Corporations: An Introduction', in Michael K. Addo (ed), Human Rights Standards and the Responsibility of Transnational Corporations (1999) 3, at 19; Robert McCorquodale, 'Human Rights and Global Business', in Bottomley and Kinley, supra note 53, 89, at 108. See also the wide definition in Sub-commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities ofTransnational Corporations and Other Business Enterprises with Regard to Human Rights, E/CN.4/Sub.2/2003/12/Rev.2, Sec. 22. including 'srockholders, other owners. workers, and their representatives, as well as any other individual or group that is affected by the activities of transnational corporations or other business enterprises', mentioning, inter alia. 'consumer groups, customers, governments, neighbouring communities, indigenous peoples and communities, nongovernmental organizations, public and private lending institutions, suppliers. trade associations, and others'.

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August Reinisch diverse and sometimes contradictory interests of different stakeholders should be reconciled with each other. And surely, as long as ethically responsible behaviour can be translated into long-term profitability, it will be difficult to see whether TNCs are really willing to 'regard ethical and social values as possessing independent value.'8G The good news for human rights is, of course, that-regardless of whether TNCs comply with them as a result of more or less enlightened self-interest-a higher degree of compliance will follow.

5. Problems with Codes of Conduct: The Supervision and Enforcement Defcit It came as no surprise that the self-regulation of non-state actors, in particular of TNCs, entails serious problems. Some codes have been criticized for being more protective of the companies that adopted them than of the people they were intended to protect.87 The supervisory andlor enforcement structures of many TNC-adopted codes are either non-existent or very weak. Thus, mere voluntary codes are frequently perceived to be insufficient to increase TNC human rights accountability effectively.88 It is therefore not surprising that steps 'beyond voluntarism' are demanded.89 The weak structure of codes of conduct is not limited to guidelines adopted by companies. Codes of conduct adopted under the auspices of international organizations also rarely provide for strong supervisory mechanisms. Frequently, they envisage no procedures or institutions at all. Some have adopted weak informal procedures such as the OECD guidelines with their National Contact ~ o i n t or s ~the~ ILO with its Subcommittee on Multinational Enterprises with regard to the ILO Declaration on Fundamental 86

Parkinson, mpra note 82, at 62.

'' According to Lena Ayoub, 'Nike Just Does It-and

Why the United States Shouldn't: The United States' International Obligation to Hold MNCs Accountable for Their Labor Rights Violations Abroad', 11 DcPaul Bw. L.J (1999) 395, at 405,'[wlhile publicized codes of conduct impress consumers and the media, they have been largely ineffective at realizing the goals they purport to represent [ . . . ] due in large part to the lack of any legal enforcement mechanism upon these codes'. See also McCrudden, supra note 40, 168, on the controversy surrounding the Nike and Shell Codes. See UN Sub-Commission on the Promotion and Protection of Human Rights, Sessional working group on the working methods and activities of transnational corporations, Transnational Corporations l,24May 2002,17: 'The use of and Other Business Enterprises, E/CN.4/Sub.2/2002/WG.2/WP.lIAdd. an entirely voluntary system ofadoption and implementation of human rights codes ofconduct, however, is not enough. Voluntary principles have no enforcement mechanisms, they may be adopted by transnational corporations and other businesses enterprises for public relations purposes and have no real impact on the business behavior, and they may reinforce corporate self-governance and hinder efforts to create outside checks and balances.' See International Council on Human Rights (ed), Bryond Voluntarism: Human Rights and thc Devrloping International Legal Obligations of Companies (2002),available at http:l/www.cleanclothes.orgl (iplbeyond~voluntarism.pdf. "O The OECD has demanded the establishment of National Contacr Points for handling inquiries and contributing to the solution of problems that may arise in connection with the OECD Guidelines. It has also set up a Committee on International Investment and Multinational Enterprises (CIME) chat can periodically or at the request of a member country hold an exchange of views on matters related to the Guidelines. See http:/lw.oecd.otg/daflinvestmenclguidelineslfaq.htm. See also Joachim Karl, 'The

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Principles and Rights at work." In this context, it should be noted that, on the EU level, the European Parliament has at least expressed its wish that the planned code of conduct for European ~ u l t i n a t i o n a l sshould ~ ~ constitute a legally binding standard whose implementation should be ensured by a monitoring mechanism.

These.developrnenrs, however, are the exceptions rarher than the rule. The rule still is the weakness of supervisory and enforcement elements in codes of conduct. It is a fascinating phenomenon that they are nevertheless not wholly ineffective. It would not be surprising to find that codes of conduct are regularly ineffective because no enforcement mechanism exists. What is far more astonishing is the Lct that, broadly speaking, codes of conduct are often relatively effective in spite of the absence of any legally enforceable obligations under the codes themselves. A 'realist' answer may be readily available, arguing that all depends upon external pressure: TNCs are willing to abide by human rights standards only if threatened by 'sanctions', such as consumer boycotts, cosdy litigation (maybe involving class actions and punitive damages), or other economic disadvantages as a result of negative publiciry in the media. Similarly, NGOs would only abide by ethical codes if they would otherwise lose contributions; and international organizations would only do so if they were likely to lose the support (including financial and political support) of their member states. While such 'realist perspective' is surely helpll in explaining much of corporate and other non-state behaviour, it remains an interesting aspect of these developments that the extra-legal 'enforcers' (consumers, contributors, member states, etc.) have been willing to use their leverage. The fact that such pressure has been successfully mobilized shows that ethics are not irrelevant.

B. A Revival of Extraterritoriality One way to secure human rights against non-state activities is for states, as primary addressees of international human rights law, to legislate and thus to 'translate' international human rights guarantees into the domestic legal order.93 Primary OECD Guidelines for Multinational Enterprises', in Michael K. Addo (ed), Human Rights Standard and the Rcsponsibiliiy of Transnatiom[ Corporations (1999) 89. " ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted by the Internationd Labour Confercnce at its 86th session, Geneva, 18 June 1998. The ILO Declaration is monitored through a quadrennial survey and through interpretations rendered by the Subcommittee on Multinational Enterprises. As of 15 November 1999, the Subcornminee had received over 23 requests for interpretations with very few passing the test of receivabiliry so that an interpretation has been issued. Follow-up and Promotion March 2000 by Subcommittee on Multinational Enterprises, ILO Doc. GB.277lMNEIl (2000). http://www.ilo.org/public/english/standards/relm/gb/do~/gb277/ 92 European Parliament Resolution, mpra note 50. pdflmne- 1.pdf. 93 This is most clearly expressed in Art 2(2) ICCPR, rupra note 11, providing: 'Where not already provided for by rxisring lcgislarivc or orher measures, each State Parry to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or orhcr measures as may be necessary to give effect to the rights recognized in the present Covenant.'

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legislative tools for this purpose are criminal law provisions protecting life, liberty, property, etc. of individuals against intrusion by other private parties. States may thereby fulfil their obligation under various international instruments, not only 'to respect', but also 'to ensure' or 'to secure' human rightsg4 Where states create domestic legal frameworks which are similar, or at least of a comparable quality, the ensuing level playing field for non-state actors should prevent them from human rights 'forum', or rather 'jurisdiction', shopping. I . Dzfferent National Legal Standardr

A general and broad assimilation of this human rights-relevant national legislation is, however, far from being realized. Instead, domestic legal guarantees and the effective levels of protection are highly diverse. They range from countries which have legislated in a way which broadly requires private parties also to comply with certain human rights norms, such as non-discrimination obligations,95 to states which still have a culture of impunity, leaving unpunished violations of rights of individuals both by the state and by non-state actors. At he far end of this scale one would probably have to list so-called failedgGor rogue statesg7which are no longer able or willing to ensure the minimum of legal security demanded from a state. However, even at the other end, at the high level of legal protection, the differences in national legislation and practice relevant for the enjoyment of human righrs are significant. Thus, non-state actors may deliberately assess regulatory differences and choose specific countries for their operations in order to reduce their legal burdens. This type of calculation may be made primarily by business entities such as TNCs, but it could apply equally to other non-state actors: international organizations will be induced to establish their headquarters and to operate in countries where they will be offered the widest range of privileges and immunities isolating them from the otherwise applicable and enforceable national law. It is said that some countries engage in a veritable 'immunity dumping' in order to attract international organizations. After all, such an approach is nothing but rational behaviour which-if translated into economics-means that TNCs will seek to reduce regulatory costs. This type 'of cost-reduction by regulation-avoidance has frequently been described when 'forum shopping' by TNCs with regard to social or environmental regulations

'*

Cf. Art 2(1) ICCPR, s r p a note 11, Art 1 ECHR, Art 1 AmCHR, infia note 209, and the relevant case-law starting infia text at note 21 1. " See the equal treatment legislation in some states, such as the UK Disabiliry Discrimination Act 1995 (c. 50); French Articles 225-1 to 225-4 Code Pinal, or the Irish Employment Equality Act 1998. 96 See Daniel Thiirer, 'The "Failed State" and International Law', Inrernational Review of rhr Red Cross No. 836 (1999) 731; Matthias Herdegen. 'Der Wegfall effektiver Staatsgewalt im Viilkerrechr: "The Failed State" '. 34 Bmchtc dcr Druuchen Grsellrchjifiir Volkewecht (1996) 68. 17 See Thomas H. Henriksen, 'The Rise and Decline of Rogue States'. 54 /orrmal oj'lxternario~ral Affairs (2001) 349; Petra Minnetop, 'Rogue States: Sure Sponsors of Terrorism?', 3 Griman Luw Journal (1 September 2002). http:ilwww.germanlawjournal.comlpast_issues.php?id= 188#hsl.


429 55

is analysed. However, it equally occurs with respect to national legislation intended to protect human rights. The proximity of national labour and social security law to social human rights is an obvious example. It is worth reflecting on the possible responses to reduce or at least mitigate such 'human rights forum shopping' by TNCs. The straightforward and ideal answer would clearly lie in increasing coherence between the diverse national legal frameworks. Legislative harmonization or regulatory assimilation, a process called 'approximation of the law' in the EC context,98 eliminates the incentive for forum shopping. This is as true of human rights as it is of biodiversity, pollution control, or any other legislation. However, it is also a truism that we are currently very far from achieving such an approximation of human rights-relevant national legislation."

2. US and Other Common Law Human Rights,Litigation Thus it is not surprising that, at least sometimes, an alternative option is pursued in order to make TNCs as well as other non-state actors comply with domestically translated human rights obligations. This alternative avenue lies in extending the application of national law to domestic and partly even foreign non-state actors operating abroad.loO In other words, the extraterritorial application of human rights-relevant legal provisions is used to prevent regulatory avoidance strategies of non-state actors. Recent litigation in the US, involving corporations such as Unocal, Shell, Chevron, Texaco, ExxonMobil, and Coca Cola, bears witness to this trend. All these cases are legally based on the Alien Tort Claims Act (ATCA) of 1789.1°' There is also some movement in other common law jurisdiction^.'^^ In the UK tort cases have been filed against British corporations, such as Rio into,"^ Thor

"

Art 94 (ex Art 100) TEC, the central authorization for harmonization measures entitled 'approximation of the laws', gives the European institutions wide-ranging powers of harmonization in areas directly affecting the establishment of the common market. See K. Armstrong and S. Bulmer, The Governance of the Sin& European Market (1998); G. Majone, Regulrrring Europe (1996). O n second thoughts, this is less self-evident than it may seem. More and more states are adhering to the relevant human rights treaties and there is probably an increasing role for customary international law. These developments should contribute to a harmonized body of international human rights law. 100 See Mark Gibney and R David Emerick, 'The Extraterritorial Application of United States Law and the Protection of Human Rights: Holding Multinational Corporations to Domestic and International Standards', 10 Temple Intcmtionaland Comparativc Law Journal (1996) 123; Gregory G.A. Tzeutschler, 'Corporate Violator: The Alien Tort Liability of Transnational Corporations for Human Rights Abuses Abroad', 30 Columbia Human Rights L. Rev. (1999) 359. 101 See genenlly Steinhardt, supra note 2 [19-281. See Richard Meeran. 'The Unveiling of Transnational Corporations: A Direct Approach', in Michael K. Addo (ed), Human Rights Standardr and the Responsibility of Transnational Corporations (1999) 161. Employee of a UK firm in Namibia brought compensation claim for contracting cancer while working at defendant's uranium mine with insufficient heath safeguards: Connellv v. RTZ Corporation plc [I9961 2 W'LR 251; [I9971 3 WLR 373.

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~ h e m i c a l s ,and ' ~ ~Cape ~ s b e s t o s for ' ~ ~their activities abroad. Australian litigation against the Australian firm BHP Mining ~ o m ~ a n ~led' Oto~ an out-of-court settlement. In Canada a case was brought against cambior'07 before the courts of Quebec which follows a civil law tradition. The common feature of these tort actions lies in the fact that they are based on a tort theory which recognizes that human rights violations, wherever committed, may trigger legal responsibility. The major (procedural) obstacles to recover damages have been rather technical doctrines, such as forum non conveniens (questioning whether the extraterritorial litigation is appropriate)'08 and the separate legal status of corporations (questioning the appropriateness of piercing the corporate veil in order to hold parents, or sometimes, subsidiaries, liable for the actions of related companies).'09

3. Extraterritoriality and International Law It is interesting to compare this recent 'revival' of extraterritoriality with earlier examples of extraterritoriality, considering that extraterritorial jurisdiction of any kind-whither to prescribe, to adjudicate, or to enforce' 'O-always requires a specific justification in order to be considered lawful under international law. The first wave of extraterritoriality focused on technical, corporate, and business law aspects such as competition law, corrupt practices, accounting, tax law, export controls, etc. In particular, US anti-tmst law was at the forefront of using domestic law to take action against anti-competitive behaviour taking place abroad but having '04 Personal injury claims brought by South African workers against UK firm for negligent failure to take protccrivc measures against mercury poisoning at factory in South Africa: Ngcobo and O t h m v. Thor Chcmicak Holdings Ltd, TLR 10 November 1995:Sithob and Others v. Thor Chemicalr Holdings Ltd and Another, T L R 15 February 1999. ' 0 5 Tort action by South African victims of asbestos mining by defendant company: Lubbe v. Capeplc [2000] 1 WLR 1545;Adams v. Cape Indurniesplc (19901 Ch. 433; [I9911 1 All E.R. 929. 'OG or environmentally harmful activities in Papua New Guinea. The settlement agreement again reached thc courts in Gagarimabu u. Broken Hill Pmprictaty Co Ltd and Another [2001] VSC 517 (21 December 2001). See hnp://www.ausrlii.edu.adadcises/viclVSC/2001/5 17.html. '07 For environmental damage through mining activities in Guyana. Sce htrp://www.businesshumanrights.org/Guyana.htm. Cf. for the English courts Spiliada Maritime Corporation v. Cansuk Ltd 119871 AC 460. Thc forum non rmvenicns argument was rejected by the House of Lords both in Connelb v. RTZ Corporation pL- and in Lubbe, rupra notes 103 and 105. For the US scc the Bhopal case: In rc Union Carbide Carp Gar Plant Disaster, 809 F. 2d 195 (1986).See also Andrew S. Bell, 'Human Rights and Transnational Litigation: Interesting Points of Intcrsection', in Stephcn Boctomky and David Kinky (eds), Commercial Law and Human Rights (2002)1 15:Malcolm J. Rogge, 'Towards Transnational Corporate Accountability in the Global Economy: Challenging the Doctrinc of forum non conveniens in In re: Union Carbide, Alfaro. Sequihua, and Aguinda'. 36 Texas International Law Journal (2001),299. 109 See Stephen Botromley, 'Corporations and Human Rights', in Stephen Bottomley and David Kinley (eds), Commercial Law and Human Rights (2002)47; Meeran, stipra note 102. "" Cf. American Law Institute. Rcsratemrnr (Third) Foreign Relations Law of thc United Smter (1986) 3 401. See also Shaw, supra note j6, 456.

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a substantial, direct, and foreseeable effect within the US."' The A h a case1I2 from the 1940s is the early leading decision establishing the use of the effects doctrine in this field of commercial law. Initially, extraterritoriality was fiercely opposed by the Europeans, in particular by Britain, as an unlawful extension of jurisdicti~n."~ This even led to anti-suit injunctions between English and American courts as well as to blocking and claw-back legislation."4 The Fmebauf affairH5 in the 1960s and the Siberian pipeline dispute116 in the early 1980s are also examples demonstrating the underlying clash of interests about whether the home state of the parent company may compel the subsidiary to act in a particular way abroad. While the Europeans stressed territoriality to fend off any intrusion of US influence on 'their' companies, the Americans invoked personality, control; and effects theory to exercise extraterritorial jurisdiction. With the effects doctrine remaining controversial in a number of areas, it is remarkable that the European Commission, the 'anti-trust enforcement agency' within the EU, and backed by the ECJ,"' has meanwhile adopted the effects principle defacto. It did so by exercising extraterritorial jurisdiction in order to extend the application of EC competition law to include conduct taking place outside the territory of the EU member states. ' I s These traditional examples of extraterritoriality basically involved a clash of national policy goals (securing fair competition law, fighting corrupt practices, erc.) with international law principles of jurisdiction emphasizing territoriality over any form of extraterritoriality. This has to do with the traditional function of international law as a law of co-ordination, separating spheres of competence of states and allocating spheres of jurisdiction within which states are free to act in their national See the formula used in US anti-trust legislation, infia note 122. United States v. Aluminum Co of America, 148 F.2d 416 (2d Cir. 1945). Andrea Bianchi, 'Extraterritorialiry and Export Controls: Some Remarks on the Alleged Antinomy Between European and U.S. Approaches', 35 GUL (1992) 366. For instance the British Protection of Trading Interests Act 1980, ch. 11, reprinted in 21 ILM (1982) 834; the Canadian Forcign Exrraterritorial Measures Act, 3 3 Eliz. 11, reprinted in 24 ILM (1985) 794; or rhe Australian Foreign Proceedings (Excess of Jurisdiction) Act 1984, No. 3 of 1984, reprinted in 23 ILM (1984) 1038. A jurisdictional dispute arose between France and the US over whether a French company had to comply with US export control lcgislarion against China: Fruehauf u. Marsnrdy (1964-65), [I9681 D.S.Jur. 147, [I9651 J.C.P. I1 14274 bis, [I9651 Gaz. Pal. See Andreas Lowenfeld, T r d c Controkfir Political Ends (2nd ed., 1984) 90. ll6 See A. Vaughan Lowe, 'The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution', 34 ICLQ (1985) 724. The ECJ was initially reluctant to affirm extraterritorial jurisdiction. In the Wood Pulp case, the Court basically relied on a rerritorial principle finding that anti-competitive agreements entered inro abroad were in fact 'implemented. . . w~thinthe common market'. See AhLrrom Osakcyhtio a. Commission, omed Cases 89. 104, 114. 116-117. 2nd 125-129185. [I9881 ECR 5193. ' ' I n See lC1 r Commirion. Case 48/69, [I%'?] ECR 619. ,1972, CMLR 157 and the so-called Wood Pulp cases, supra note 117. See also P.[. Kuvper. 'European Community Law and Extraterritorialiiy: Some Trends and New Developments'. 33 ICLQ (1984) 1016. 'I1 112

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interest.'" In order to avoid conflicting jurisdictions, and based on the Westphalian and post-Westphalian concept of the territorial nation state, a state's territory was traditionally regarded as the basic unit for jurisdiction. Any extension of territorial jurisdiction had to be justified by other jurisdictional links, such as the personality principle or the effects doctrine or, in the field of criminal law, the protective as well as the universality principles. Jurisdictional conflicts were traditionally solved by recourse to these more or less technical principles without having regard to the content of the extraterritorial 1e~is1ation.l~~

4. Can Shared Intematzonal Interests Jwtifj Ektraterrztoriality? With the current 'new wave' of extraterritoriality, it is no longer purely national policy interests that are pursued by extending the borders of national jurisdiction. Rather, states are using their extraterritorial jurisdiction in order to enforce not (only) their own policy goals, but also international ones. Of course, one has to be very careful in assessing whether states truly enforce international law or whether they use this as a pretext to pursue their own national policies.'21 If we can take it as a valid assumption-at least for the sake of the argument-that states are increasingly using their extraterritorial jurisdiction in order to enforce human rights concerns, they could be seen as utilizing their national legal system to enforce international law. From this perspective, extraterritorial human rights litigation can be viewed as a form of decentralized enforcement of international law. This would, of course, also mean that the issue is no longer a clash between effective (extraterritorial) national policy enforcement versus neutral international law principles of jurisdiction, but rather a clash of substantive international law principles, i.e. human rights, with formal international law principles, i.e. territorial jurisdiction. Under these changed parameters, there is a possibility that 'substance' might override 'form'. Thus, there are new chances for extraterritoriality since affected states will have a hard time justifying their disregard of human rights in rejecting the extraterritorial acts of others. While international law only provided a value-neutral framework within which states were free to adopt and pursue their own policy through legislation, each state could easily defend its own sovereign right to determine its own policies and thus to legislate and remain unaffected by the legislation of other states. The growing convergence of policies, or at least the increasing substantive determination of national policy choices through international law, for

"'

'There is no more important way to avoid conflict than by providing clear norms as to which state can exercise authoriry over whom, and in what circumstances. Without that allocation of competences, all is rancour and chaos': Higgins, supra note 6 , 56. Except insofar as international law might provide recourse to a particular type of jurisdictional link, e.g. competition rules-effects doctrine; counterfeiting money-protective principle, etc. See also Shaw, supra note 56, 458. I21 See the Helms-Burton debate where the US inrenrion to portray its action as decentralized enforcement of the human right to property was contested by other states, infia text at note 132.


our purposes the increasing pressure to fulfil human rights obligations by enacting implementing legislation, has weakened the shield of national sovereignty and territorial jurisdiction. The traditional approach of international law to allocate jurisdiction between the -traditional subjects oF international law, the states, was fairly straightforwardnowadays one would probably say 'user-friendly'-based on territoriality and nationality: states have jurisdiction over persons and things located within their territory and, to some extent, over persons and things, such as ships and aircraft, outside their territories if there is a special ('genuine') link to them such as citizenship or the like. Only very reluctantly, international law has recognized additional justifications for the exercise of extraterritorial jurisdiction. The objective territoriality principle or effects doctrine, according to which any conduct that has, for instance, a 'direct, substantial and reasonably foreseeable effect'12' on a state's territory may be subject to that state's extraterritorial jurisdiction, is one example, by now largely accepted in the context of anti-trust/competition law. Whether it could be developed into a more general principle according to which any 'substantial or effective connection' with a state would give that state a legitimate basis for extraterritorial jurisdiction remains to be seen.Iz3 As already indicated, it is worth considering whether, in addition to these 'formal' jurisdictional principles, issues of substance, of the content of legislation, may have an impact on the legality of the exercise of extraterritorial jurisdiction. In this regard, it is useful to look to other fields of extraterritorial jurisdiction, such as humanitarian law and other forms of international criminal law providing for universal jurisdiction of contracting parties over very serious crimes. The Geneva Conventions give all Contracting States the right-some argue even the obligation-to prosecute war crimes committed by anyone, anywhere, without the need for any territorial or personal link to the crimes.12* The traditional connecting factor is no longer required, but is replaced by the shared interests of the international community in 122 See e.g. 1982 Foreign Antitrust Improvements Act. Public Law 97-290, Title IV, Section 402; 96 Stat. 1246: 15 USC Section 6a. See K.M. Meessen (ed), Exnaterritorial Jrrrisdiction in Theory and Practice (1994); Werner Meng, Exnnterritoriah Jurisdiktion im ofintlichrn Wimchafirccht (1994). According to Arts 49 ttsrq. Convention (I) for rhe Amelioration of the Condition of the Wounded and Sidc in Armed Forces in the Field. Geneva, 12 August 1949.75 UNTS 31; Arts 50 et seq. Convention (11) for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. 75 UNTS 85; Arts 129 rr seq. Convention (111) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949,75 UNTS 135; Arts 146 etseq. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, 75 UNTS 287, the Contracting Parties are under a special dury to prosecute and try persons alleged to have committed 'grave breaches' regardless of their nationality and regardless of the place where such 'grave breaches' occurred (principle of universality) or at least to extradite such persons. See Antonio Cassese. 'On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law', 9 EJIL (1998) 2 at 5; Michael P. Scharf, 'Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Parry States', 35 New EnghndLzw Reviw (2001) 363.

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August Reinisch

preventing certain. acts. The history of legal steps against bribery and corruption in general also provides an interesting lesson with regard to the gradual acceptance of extraterritoriality. The initial unilateral approach of the US in passing the 1977 Foreign Corrupt Practices ~ c t met ' ~with ~ considerable disfavour and was rejected by some countries 'affected' by the extraterritorial application of this legislation.'2G The 1997 OECD Anti-Corruption onv vent ion'^^ broadly prohibits bribery both at home and abroad and permits the use of extraterritorial legislation. This has largely eliminated the controversy.'28 Parties to the OECD Convention would hardly be in a convincing position to complain about extraterritorial anti-corruption enforcement by other states if that action were prompted by their own inactivity contrary to their obligations under the convention. At this point one could draw a parallel with the extraterritorial 'prosecution' of human rights violations as exemplified by current human rights litigation before US and other mostly common law jurisdictions. Whether they use traditional criminal law instruments or civil liability there is also a shared interest in preventing human rights infringements, not only by states but also by non-state actors. The prime instrument of national legislation is the incrimination of certain acts leading to criminal or civil responsibiliry regardless of whether they were committed within or outside the territory of the forum state. If the territorial state is bound by international agreements to ensure human rights, any opposition to extraterritorial enforcement would be hard to justify. In such a case the territorial state would be obliged to take action itself. If it refused to do so and coupled this refusal with a rejection of action by other states to enforce the same treaty rights extraterritorially, this non-co-operation could be qualified as an act of bad faith. The common rationale would be that the defence of shared substantive interests, protecting human rights, gives additional weight to the exercise of extraterritorial jurisdiction.12' Of course, behind such a model always lurks the danger of a unilateral assessment of what are human rights, which types of human rights deserve extraterritorial protection, etc. This, in turn, is related to the question who determines substance. The Helms-Burton controversy may serve as a useful illustration of the problem. This 1996 US legislation130provides, inter alia,for a cause of action before US courts against investors from anywhere in the world who happen to invest in property in Cuba formerly belonging to persons expropriated by the Castro 15 U.S.C. § 78dd, http:/lwww.usdoj.govlcriminallfraudlfcpa/fcp~tat.htm. See P.M. Nichols, 'Regulating Transnational Bribery in Times of Globalization and Fragmentation', 24 Yalcjournalof Intcmtional Law (1999) 257. I27 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, adopted 21 November 1997, entered into force 15 February 1999. http://www.imf.org/ rxternal/np/gov/200l/eng/09 1801 .pdf. 128 Ir has also eliminated the competitive disadvantage for American companies uis-2-uir others which 1 .?V were 'lawfully' bribing abroad. See McCorquodale, supra note 85, at 101. "O Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996. Public Law 104-1 14, H.R. 927; reprinted in 35 ILM (1996) 357-78. Iz5


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regime.13' Among many other issues, one of the problems concerned the weight of the US claim that this legislation was in essence a measure permitting human rights enforcement by US courts.132For the US, the protection of private property against unlawful expropriation constitutes a general international law standard which they felt e n t i t l e d to e n f o r c e e v e n against ' a ~ c o r n ~ l k e s ' ,t 'h~o ~s e who 'traH;ck' i n former US property by purchasing land from the Cuban government today, in the governmental human rights violation, the discriminatory and uncompensated expropriation of American property in the 1960s. For the Europeans and many other affected countries, the Helms-Burton Act amounted to an impermissible extension of American values by prohibiting non-American companies from investing in ~ u b a . Leaving ' ~ ~ many other technical aspects aside, one of the central issues in the Helms-Burton controversy was whether the right to property belongs to a core of customary international law principles which merit not only universal respect but also enforcement even by other states. It is obvious that the national interest and perspective of legislators and courts will play a great role in this issue. The same is true for litigation under the ATCA (which in a way served as a model for the Helms-Burton Act) where a national interpretation of what is to be considered international human rights law may depart from the communis opinio scholarum, the general opinion of international lawyers. This problem is related to the larger issue of the universality debate of human rights, to the question of which human rights call for universal respect and which may be regionally divergent. As with the question of universal human rights, so also in the context of Helms-Burton: hypocrisy appears to be the true problem. The entire issue of extraterritorial human rights enforcement also displays interesting parallels to the debate currently taking place within the WTO with regard to the controversial insertion of a 'social clause' into the W O legal order.135 13'

See Clagetr, 'Title 111 of the Helms-Button Act Is Consistent with International Law', 90

AJIL (1996), 435; Vaughan Lowe, 'US Extraterritorial Jurisdiction: Thc Helms-Burton and D'Amato Acts', 46 ICLQ (1997), 378; Andreas Lowenfeld, 'Congress and Cuba: The Helms-Burton Act', 90 AJIL (19961, 419-35; Brigitte Stern, 'Ven la mondialisation juridique? Lcs lois Helms-Burton et D'Amato-Kennedy', 100 Rcvur Glniralt dr Droit Intonational Public (1996) 979. 13' See August Rcinisch, 'Widening thc US Embargo Agamst Cuba Extraterritorially. A few public

international law comments on the "Cuban Libcrry and Democratic Solidarity (LIBERTAD) Act of 1996" ', 7 EJIL (1996). 545-62. '33 In relation to the concept of compliciry in human rights violations see Celia Wells, 'Catching the Conscience of the King: Corporate Players on the International Stage', infia Chapter 5. See European Union: DCmarches Protesting the Cuban Liberty and Democratic Solidarity Act, reprinted in 35 ILM (1996) 397; Inter-American Juridical Committee, Opinion of 23 August 1996, CJII SOIIIldoc.67196 rev 5; adopted by CJIlRES.11-14/96; reprinted in 35 ILM (1996) 1322. See Christopher McCrudden and Anne Davies, 'A Perspective on Trade and Labour Rights', in Francesco Francioni (4, Envzronmcnt, Htrman Rzghts and Intonatzonal Trade (200 1). 179; Friedl Weiss, 'Internationally Recognised Labour Standards and Trade', in Friedl Weiss, Erik Denters, and Paul dc Waart (eds), International Economzc Law with a Human Face (1998). 79; Erika de Wet. 'Labor Standards in the Globalized Economy: The Inclusion of a Social Clause in thc General Agrecmcnt O n Tariff and

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4. COMMON FEATURES At this point, let me try to draw a few preliminary conclusions relating to the broader picture of the changing legal framework set out above. The common features I present in the following part are not an exhaustive description. Rather, they serve to illustrate and partly to explain some of the new approaches to non-state actors and human rights. A. New Positions and New Alliances of Non-State Actors Under traditional human rights law, the roles were clearly distributed among the main players. NGOs and international organizations were keeping an eye on the human rights performance of states and increasingly also of T N c s . ' ~ International ~ organizations and NGOs were the 'good guys' and it was their role to advocate and promote human rights, to campaign for human rights observance, and to supervise compliance and find violations. The 'bad guys', powerful states or even less powerful ones which in relation to individuals always had a threatening potential of power, were the primary targets of human rights scrutiny. These roles have been partially reversed today: international organizations are now increasingly questioned about their human rights' performance. A prime example lies in the EUIEC, where a human rights case-law has been developed by the European Court of ~ustice,'~'but other international organizations, such as the UN with regard to its activities (or rather failure to act) in situations like TradelWorld Trade Organization', 17 Human Rights Quarterly (1995) 443. See also discussion in Steinhardt, supra note 2 at (35-371. 136 See Felice D. Gaer, 'Reality Check: Human Rights NGOs Confront Governments at the UN', in Thomas G. Weiss and Leon Gordenker (&), NGOs, the UNand GIobal Governance (1996) 51; Margaret E. Kcck and Kathryn Sikkink, Actiuists beyond Borders: Advocacy Networks in International Politics (1998); Dianne Orto, 'Nongovernmental Organizations in the United Nations System: The Emerging Role of International Civil Society', 18 Human Rights Quarterly (1996) 107; Peter Willets (ed), The Conscience of the World, The Influence of Non-Gourmmmtal Orgnnizatiom in the U.N. System (1996). In its 1998 annual report, Amnesty International criticized not only individual governments and militant groups for human rights violations, but also businesses and international financial institutions, including Royal Dutch Shell, the World Bank, the International Monetary Fund, and the World Trade Organizatiori. The report is available at http:llamnestyusa.org/~:r~pt~lexit.cgi?m.amnesty.org/ailibl index.html. See also the mission statement of 'CorpWatch. Holding Corporations Accountable': 'CorpWatch counters corporate-led globalizauon through education and activism. We work to foster democratic control over corporations by building grassroots globalization-a diverse movement for human rights, labor rights and environmental justice.' And see its report on the Nike lawsuit, available at http:// www.corpwatch.org/trac/nikellawsuit.html. Similarly, Human Rights Watch has gone beyond criticizing only states. In a 1999 report it was highly critical of Enron's activities in the course of a controversial electricity project in India where local opposition was harshly repressed. See Human Rights Watch, The Enron Corporation: Corporate Compliciry in Human Rights Violations (1999), available at htrp:// www.hrw.orglreportsll9991enron. 1.37 See i n f a note 236.

Non-State Actors and International Law The Changing International Legal Framework ~ r e b r e n i c a 'or ~ ~with regard to its economic sanctions policy,'39are becoming the subject of scrutiny by NGOs, affected states, and the public. A similar development can be witnessed in the context of international financial institutions: the IBRD and the IMF are questioned increasingly about the human rights compatibility of their development policies, in particular, in their lending practices.140 NGO accountability is another new topic: their activities are subject to intensified scrutiny, and they are attacked for their lack of democratic structures and transparency. In some instances they are wen accused of acting contrary to human rights.141 In addition, the human rights implications of T N C activities have received renewed attention. TNCs as potential perpetrators of human rights violations have become the focus of much recent human rights discourse. But this is not the only aspect of human rights and TNCs. There is also the positive story about TNCs and human rights: TNCs may induce change and contribute to an enhanced human rights environment in the states where they operate.142 On che macro level, the foreign investment they contribute to a national economy may raise living standards and create better social and economic conditions in the host countries. On the micro level, TNCs may act as promoters, serving as role models in adopting human rights (labour rights) standards This involved the Fdilure of UN peace-keeping forces to protect civilians in the UN-declared 'safe areas' of former Yugoslavia, particularly, in and around Srebrenica where a massacre was carried out by Serb forces o n Muslim civilians in summer 1995. The widespread criticism and allcgations of responsibility prompted the General Assembly to commission an investigation which resulted in the Secretary-General's report on Srebrenica, supra note 80, which acknowledged that 'There is an issue of responsibility, and we in the United Nations share in that responsibility, as the assessment at the end of this report records': ibid., para. 5. 13' See Hans-Peter Gasser, 'Collective Economic Sanctions and International Humanitarian Law: An Enforcement Mcasure Under the United Nations Charter and the Right of Civilians to Immunity: An Unavoidable Clash of Policy Goals?', 56 Zeitschriftfir ausliindischcs offcntlichcs Recht und Vdkewccht (1996) 871; August Reinisch, 'Developing a Human Rights and Humanitarian Law Accountability of the UN Security Council for the Imposition of Economic Sanctions', 95 AJIL (2001), 851; W. Michael Reisman and Douglas L. Stevick,'The Applicability of International Law Standards to Unitcd Nations Economic Sanctions Programmes', 9 EJIL (1998) 86. I4O See Franqois Gianviti, 'Economic. Social, and Cultural Human Rights and the International Monetary Fund', Chapter 4 infia; and Philip Alston, 'Can the International Human Rights Regime Accommodate Non-State Actors', Chapter 1, supra. Sec also Patricia Armscrong, 'Human Rights and Multilateral Development Banks: Governance Concerns in Decision Making', 88 Amm'can Society of lnt'l Law Pmc. (1994) 271; Daniel D. Bradlow, 'The World Bank, the IMF,and Human Rights', G Tramnat'l Law and Contemp. Problcmc (1996) 47; Sabine Schlemmer-Schulte, 'The World Bank and Human Rights'. 4 Amman Review of lntemational and European Law (1999) 230; Sigrun Skogly, The Human Rigbts Obligations of the World Bank and the International Monetary Fund (2001). 14' Michael EdwardsIDavid Hulmc (cds), Non-Governmcn~al Organizations-Pc@nnancc and Arcountabiliy in the Port-Cold War World: Btyond the Magic Bullet (1995); Ian Smillie, The Alms Bamar: Almrism Under Fire-Non-Profi Organzzatiom and International Drvelopmrnt (1995). See Deborah Spar, 'The Spotlight and the Bottom Line: How Multinationals Export Human Rights', 77 Foreign Affairs (1998) 7 ; Jennifer Johnson, 'Public-Private Convergence: How The Private Actor Can Shape Public International Labor Standards', 24 Brook. j. Int'l L. (1999) 291: W.H. Meyer, 'Human Rights and MNCs: Theory versus Quantitarivc Analysis'. 18 Human Rights Quart?+ ( 1996) 368.

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A u p t Reinisch

that should be copied by other firms. This concept of the alternative role of TNCs is a clear reversal of the 'stay out' policy advocated after heavy criticism of the involvement of some TNCs in the domestic affairs. of host states, such as ITT in the overthrow of the Allende regime in Chile in 1973 and Elf Aquitaine's role in the ousting of the Congo-Brazzaville government in 1997.143 These changes, among others, witness that the roles have been, at least partly, reversed. There is a greater number of potential human rights violators, but there are also more potential human rights promoters and defenders and they may enter into new alliances with each other. Traditionally, international organizations could count on the support of NGOs in advocating human rights, in exposing state practices in violation of human rights, etc. Today, NGOs sometimes antagonize international organizations by severely criticizing the latter.I4 On the other hand, TNCs are trying to get NGOs on'board in their human rights code of conduct campaigns to enhance their own standing; they have realized that 'human rights are good business'.145 They are relying, inter alia, on NGO and other independent professional expertise for 'social accounting'.'4G Furthermore, international organizations partly try to co-opt NGOs. In particular, the International Financial Institutions (IFIs) such as the IMF, the World Bank Group, and regional development banks, as well as the WTO, have learned their lessons from Seattle and Genoa by creating NGO links.14' The UN has tried to get NGOs 'on board' by changing the system of NGO consultative status,'48 by using their aid delivery services through UN subcontracting,14' etc. 143 See Menno T. Kamminga, 'Holding Multinational Corporations Accountable for Human Rights Abuses: A Challenge for the EC', in Philip Alston (ed), The EUand Human Rightr (1999),553,at 554. 144 See the N G O criticism of the IMF and IBRD as well as the EU by 'statewatch' (http:ll www.statewatch.org~and of the UN by 'unwatch' (hnp:llwww.unwatch.orgl). 145 Cf. Kinky, supra note 53,26. 146 Social Accountabiliy 8000, for instance, is a monitoring and certification standard mainly for labour standards at factories. Modelled on the auditing process developed by the International Standards Organization. such as I S 0 9000 and I S 0 14000,it relies on certified monitors to verify compliance. SA 8000 was first issued in 1998 and revised in 2001. See http:llwww.cepaa.org/SA8000/SA8000/htm. '41 See W T O Guidelines for Arrangements on Relations with Non-Governmental Organizations, WTO, WT/L/162,23 July 1996. See also Steve Charnovia, 'Participation of Nongovernmental Organizations in the World Trade Organization', 17 LI. Pcnn. ]. Int'l Econ. L. (1996)331; Daniel C.Esty, 'Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion', 1 ]. Int? Econ. L. (1998) 123;Wolfgang Benedek, 'Developing the Constitutional Order of the WTO: The Role of NGOs', in Drvrlopmcnt and Dewloping Intrrnational and European Law: Essays in Honour of Konrad Ginther on the Occasion of his 65th Birthday (1999)228;Ibrahim F.I.Shihata, 'The World Bank and Non-Governmental Organizations', 25 Comcil Int'l L.J. (1992)623. 14' According to Art 71 UN Charter, the U N 'Economic and Social Council may make suitable arrangements for consultation with NGOs which are concerned with matters within the [Council's] competence'. Based on this Charter authorization, ECOSOC adopted R a . 288 B 6) (27February 1950), Res. 1296 (XLIV) (23May 1968),and Res. 1996131 (25July 1996),layingdown the specific requirements for N G O accreditation. See http://www.un.org/documents/ccosoclres/l996/eresl99~3l.htm. '41 See Leon Gordenker and Thomas G. Weiss, 'Devolving Responsibilities: A Framework for Analysing NGOs and Services', in Thomas G. Weiss (ed), Beyond UNSubcontracting: Task-Sharing with Regional Security Arrangnnmtr and Service-Provding NGOs (1998)30.


439 G5

The reversal of roles is also nicely encapsulated in the classical 'Who guards the guardians?'.'50 After the recent Enron disaster this could be rephrased into a more current 'who accounts for the accountants?' In any event, accountability is no longer a one-way exercise. Rather, it has become a multi-faceted issue. B. Indirect Human Rights Enforcement-'Going

After the Accomplices'

O n a fairly general and abstract level another common attribute may be identified from recent trends in dealing with the human rights performance of non-state actors: a growing tendency to turn against 'accomplices' in case the main perpetrators cannot be held accountable. The underlying rationale and message of the (legal) accountability of companies complicit in direct human rights violations is clear: ultimately, TNCs will be deterred from investing in countries where they might be held responsible for acts of that state. More and more frequently, legal devices are chosen to induce compliance via indirect sanctioning. The combination of extraterritoriality and vicarious liability has produced some remarkable examples, based on the philosophy: 'if you can't get the direct perpetrators, put pressure on those who collaborate with them or profit from their acts'. Examples are the Unocal litigation where direct action against Myanmar (Burma), the alleged direct human rights violator, appears unfeasible because, on the traditional inter-state plane, there is not sufficient leverage and because state immunity would prevent a direct claim against Myanmar in US courts.15' Even if jurisdiction were upheld by national courts, the chances of enforcing an eventual judgement would be very low. Thus, it makes sense to seek redress against corporate accomplices to state action. Corporate complicity is, of course, a very complex issue and it is useful to differentiate between various degrees of involvement and 'culpability' of corporate b e h a v i 0 ~ r . lThere ~ ~ is an obvious distinction between a company investing or otherwise doing business in a country with a questionable human rights record and actively supporting forced population transfers or using slave labour provided by government units. It has thus been suggested that different categories of 'complicity' be applied, such as actively assisting in human rights violations by others, benefiting from the opportunities created by human rights violations, or silence and inactivity in the face of human rights violation^.'^^ 'I0 'Quis C~utodict410s CustodCSI ('But who guards the guardians?'), Decimus Jz~niusjuv~nd, Satires VI, 347. See also Ralph Wilde, 'Quis Custodiet Ipsos Custodes? Why and How UNHCR Governance of "Development" Refugee Camps Should be Subject to International Human Rights Law', 1 Yalr H.R. & Drv. L.]. (1998) 107. 'I' In Doe v. CJnocal C o p 963 F. Supp. 880 (C.D. Cal. 1997) the claim againsr the State Law and Order Restoration Council of Myanmar and the Myanmar Oil and Gas Enterprise was dismissed for state immunity reasons. '51 See Steven R. Ratner, 'Corporations and Human Rights: A Theory of Legal Responsibiliry', 111 Yale Law Joumal (2001) 443. at 497. See also Cclia Wells, rupra note 133. '53 See International Council on Human Rights (ed.) Beyond Voluntarrsm: Human Rights imd t h e Dcueloping Inrcmational Legal Obligations of Companies (2002) 126. See also Human Rights Watch,

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August Reinisch Some aspects of the Holocaust litigation before US courts follow this pattern. The

Princz case is a pertinent example: an action for slave labour against the Federal

Republic of Germany failed before US federal courts because of the immunity of the defendant.15* Subsequent cases were instituted against companies which profited from slave labour either in a direct way, such as industrial firms,'55 or in a less direct way, such as banks and insurance companies.'56 In all these cases it is clear that the primary target of the US litigation is the atrocious policy of forced and slave labour organized by the Third Reich. The corporate defendants did not plan or institute this exploitative programme, but some may have willingly benefited from it. And because the &ect perpetrator is unavailable as a defendant, the indirect 'beneficiaries' which may be subject to the jurisdiction of US courts today are named as defendants now. The above examples all relate to US civil actions based on a concept of corporate liability for complicity in human rights violations perpetrated by governments. This appears to be by far the most likely situation when one is confronted with corporate human rights violations, although it may also happen that TNCs themselves engage in human rights violations. The precise legal standards for civil liability for such corporate complicity in human rights violations is, however, as unexplored as standards for their criminal r e ~ ~ o n s i b i l i t ySome . ' ~ ~ tentative guidelines can be found in some of the codes of conduct mentioned above, although they are usually not helpful to the search for precise standards. The UN Global Compact, for instance, demands that businesses 'make sure they are not complicit in human rights abuses'.15' The Commentary to the Norms on the Responsibilities for Transnational Corporations and Other Business Enterprises with Regard to Human Rights provides that '[t] ransnational corporations and other business enterprises shall have The Enron Corporation: Corporate Complicity in Human Rights Violations (1999), available at http:// www.hnv.orglrcportsl1999lcnron. Prinn v. Federal Rcpublir of G m n y , 813 F . Supp. 22 (1992). 26 F.3d 1166, 1180 (D.C. Cir. 1994). See e.g. Iwanowa v. Ford Motor Co, No. 98-CV-959, 1999 WL 719888 (D.N.J. 14 September 1999); Gross v. Volkswagcn, No. 98-CV-4104 (D.N.J. filed 31 August 1998). See also the list of known World War I1 and National Socialist era cases against German companies pending in U.S. courts, at

"'

http:llwww.sufcung-en.de/doku/~uftunginitiative/statemen~englis~ann~c.html. See among others the complaints filed in US federal courts Duvcen v. Drutsche Bank AG, No. 99CV-0388 (S.D.N.Y. filed 19 January 1999); W a h a n v. Dcu~schcBank, No. 98-CV-3938 (S.D.N.Y. filed 3 June 1998); Bodner v. Banque Paribas, No. 97 Civ. 7433 (E.D.N.Y. filed 20 March 1998).

'"

'51 Cf. Andrew Clapham and Scott Jerbi, 'Categories of Corporate Complicity in Human Rights Abuses'. 24 Hastings Int'f 8. Comp. L. Rev. (2001) 339. who suggest a differentiation between direct corporate complicity, requiring intentional participation; beneficial or indirect corporate complicity, merely requiring knowledge of human rights violations from which companies will benefit; and silent complicity, where companies may be faulted for not acting or speaking out against systematic human rights abuses of host states. See also Celia Wells, 'Corporate Criminal Liability in Europe and Beyond', 39 New South W a h Law Soney Journal (2001) 62. 158 UN Global Compact, rupra note 43; see Steinhardt, supra note 2 at 206.


441 67

the responsibility to use due diligence in ensuring that their activities do not contribute directly or indirectly to human rights abuses, and that- they do not directly or indirectly benefit from abuses of which they were aware or ought to have been aware'.159 Similar demands are formulated in a number of voluntary human

rights codes of conduct and they are also expressed in the guidelines of ethical investments erc. This shows that, although no clear rules have yet crystallized with regard to this form of indirect human rights enforcement, the idea of putting (even just economic) pressure on non-state actors to improve human rights situations has gained broad support. The idea of holding accountable those who are' subject to accountability mechanisms even if they are only indirectly responsible for human rights infringements has also received renewed attention in the context of the European system of human rights protection. It lies at the heart of a new trend in the case-law of the European Court of Human Rights, marked by the Gibraltar voting case,lGOholding states accountable for human rights violations of international organizations of which they are members. One could even draw an (admittedly rather far-fetched) parallel to recent US action against states harbouring terrorists. Although the roles are reversed here, it follows a similar patcern insofar as the US tries to hold governments accountable not for directly perpetrating terrorist acts or directly engaging in state-sponsored terrorism, but rather for aiding, supporting, not preventing, and not co-operating in the fight against, terrori~m.'~' This latter example may be evidence of a general theme of a changed international environment willing to enforce human rights, whether directly or not, against accomplices. It is, in any event, probably more than just the result of a growing frustration over the ineffectiveness of human rights protection against states.

C. Increasing Use of Non-Legal Means of Enforcing Human Rights Compliance of Non-State Actors Recent developments with regard to TNCs and human rights may teach another interesting lesson. Legal enforcement techniques, holding human rights '51 Sub-Commission on thc Promotion and Protection of Human Rights, Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Commentary (b) to Sec. 1. Regard to Human Rights, E/CN.4/Sub.2/2003/38/RevV2, ''O See znfirr note 219. 161 This logic was first relied upon by the US against Sudan and Afghanistan. See Jules Lobel, 'The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan', 24 YalcJ Inrl L. (1999) 537; Ruth Wcdgwood, 'Responding to Terrorism: The Strikes Against bin Laden', 24 Yale J. Inr'l L. (1999) 559. For post-l l September 1001 action see Antonlo Cassese, 'Terrorism is also Disrupting Some Crucial Legal Categories of lntcrnarional Law', 12 EJII. (2001) 993; Jost Delbriick, 'The Fight Against Terrorism: Self-Defense or Collective Secutity as International Police Action? Some Comments on rhc International Legal Implications of the "War Against Terrorism"'. 44 Gcnnan Yearbook inrernamo~rnlLaw (200 1 ) 9.


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August Reinisch

violators legally accountable before international or national tribunals, may become less central as a mechanism to protect human rights effectively. More 'non-legal' enforcement techniques are used to induce human rights compliance. Consumer boycotts are now almost a classical 'non-legal' enforcement technique to induce human rights compliance by T N C S . ' ~The ~ threat of lost sales of products produced in an environmentally harmful way, by disregarding core labour standards, or otherwise having negative human rights implications has proven to be a highly effective deterrent against such activities. This effectiveness is, in turn, predicated and depends upon a growing awareness and sensitivity of consumers. The goodwill, reputation, and publicity attaching to a company's human rights performance has become an important intangible business asset which is vigilantly guarded. The non-legal enforcement mechanisms are not exhausted with the 'stick' of consumer boycotts. 'Socially responsible investing' has developed from an initial policy of excluding investments in certain sectors (such as arms production, genetically modified organisms, tobacco, etc.) into a positive pro-investment choice concerning businesses that conform to certain standard^.'^^ One of the reasons for this development may be the simple legal impossibility of using the 'normal' human rights enforcement mechanism of human rights scrutiny by international human rights monitoring bodies, courts, and tribunals. Non-state actors are not subject to the relevant human rights protection systems under various universal and regional human rights conventions. This is as true for TNCs as it is for international organizations and ~ ~ 0 sHowever, . ' ~ ~ may be it is less the non-availability of legal means than their non-effectiveness, or at least their lesser degree of effectiveness, which has induced the turn towards nonlegal means of enforcemenr. The far more compelling force of the non-legal mechanisms mentioned above-consumer boycotts and ethical investment strategies--can be directly translated into costs and gains for companies. This economic argument has not fallen on deaf ears on the part of some non-state actors, parricularly TNCs.

16' An early well known consumer boycott arose from the controversy about the marketing of infant formula in developing countries. See Nancy E. Zelman, 'The NestlC Infant Formula Controversy: Restricting the Marketing Practice of Multinational Corporations in the Third World', 3 Transnat'l L. (1 990) 697. A list of currently enforced boycotts is available at http://www.ethicalconsumer.org/boycotts/ boycotts-list.htm. See also Kenneth A. Rodman, '"Think Globally, Punish Locally": Nonstate Actors, Multinational Corporations, and Human Rights Sanctions', 12 Ethics & Intnnational Affahirs (1998) 19. See further Steinhardt, supra note 2 at 185-6. See www.neweconomics.org as well as www.socialinvcst.org. See also the Sustainable Investment Research International Group (SIRI) a coalition of 12 research organizations aiming to provide and promote high quality social investment rcscarch products and services: http://www.sirigroup.org. See generally Steinhardt. supra note 2 at 181 and 184 for a discussion of 'rights sensitive' products and socially responsible invesunent. '64 See, however, inj?a text starting at note 225, for the potential of future development.

'"

Non-State Actors and International Law The Chan,qing International Legal Framework

443 69

D. Enforcing H u m a n Rights Compliance of Non-State Actors Regardless of Whether they are Strictly Bound by Human Rights Obligations Another common feature of recent developments in the field of non-state actors and human rights seems to be the decreasing relevance of the legal quality of t h e s r a n d a r d s i n v o k e d . A p p a r e n t l y , i t is b e c o m i n g less a n d less i m p o r t a n t w h e t h e r

the human rights standards sought to be enforced are legally binding or not. Regardless of whether a strict obligation to respect human rights exists de lege kzta, many of the current 'enforcement' measures are used in order to induce compliance. This is true not only of the 'non-legal' means of consumer boycotts uis-2-uis TNCs and 'socially responsible' investments, but it also applies to the recent surge of suing TNCs before national courts as long as they are 'doing business' within the forum state. 165 Of course, consumers and investors are free to choose where to buy or to invest. They may rely on moral or ethical choices when making their business decisions. If it comes, however, to holding business entities civilly liable (as in many of the ATCA actions before US courts) the question of legal responsibility arises. This clearly presupposes that obligations legally binding on TNCs have been breached. Findings of liability in the absence of a legal obligation would be irreconcilable with hndamental notions of the rule of law. One need not even invoke the nulkzpoenu sine lege analogy of criminal law.'66 There is another risk involved in the increasing demand for accountability regardless of whether those held accountable are legally bound by certain standards. It creates a danger of blurring the line berween legal obligations and de legeferenah standards which might ultimately backfire by weakening the obligatory character of human rights law. lG7

E. The Issue of Non-State Subjects of International Law: A Fresh Start or a Cul de Sac? The question of personality or subjectiviry under international law has fascinated generations of international lawyers and it has remained a precarious and complicated one.lG8It also arises in the context of non-state actors and human rights. The precise question is whether non-state actors are more than just indirect addressees of human rights norms which are directly addressed to states. We have seen that, at I"

According to many US 'long arm' statutes, foreign defendants may be subject to the jurisdiction of

US courts if they are considered to be 'doing business' within the US. See Restatcmrnt (Third), supra note 615(1) 1st Sentence ICCPR, supra note 11. 110, 5 421.

"'See also U N Sub-Commission

'"

on the Promotion and Protection of Human Rights, SessionaJ working group on the working methods and activities of transnational corporations, Transnational Corporations and Other Business Enterprises, E/CN.4/Sub.2/2002/WG.2NlrpNlrp1/Add. 1, 24 May 2002, 17, noting the concerns expressed that 'that universal principles [for transnational corporations] will only dilute Jready established more specific standards focused on particular issues facing an industry, a transnarional corporation, or other business enterprise'. I6"haw, supra note 56, at 137 et rey.

444

Non-State Actors and International Law August Reinisch least prima facie, non-state actors are increasingly the direct addressees of human rights standards. Numerous voluntary codes of conduct clearly formulate direct obligations for companies. Does that mean that they have become, at least partially, subjects of international law? T o some extent this discussion relates back to the Drittwirkungs debate of past decades.IG9 However, one should clearly recognize that in German doctrine and jurisprudence, where the theory of 'third-party effect' was most intensely debated, Drittwirkung really dealt with the private law repercussions of fundamental rights norms, with the effect on the legal relationship between private parties. It did not elevate private, non-state actors to the level of direct addressees of constitutional rights and obligations. In a traditional international law understanding, only subjects of international law can be addressees of international obligations. If one narrowly defines subjects of international law as comprising states, international organizations, as creatures of states, and a few historic subjects of international law, such as the Holy See and the ' non-state actors relevant for our purposes would Sovereign Order of ~ a l t a , ' ~most be excluded from the outset. However, if one follows a more 'liberal' delimitation of subjects of international law, for instance, one that would hold that an entity can be considered a subject of the international legal system if it has rights andlor obligations under that system, then a closer examination of the relevant human rights standards appears to be necessary in order to find out which non-state actors may qualify. The underlying rationale of considering certain non-state actors as subjects of international law is usually that international law directly endows them with certain rights and obligations. For instance, the ICRC enjoys partial international legal personality because the Geneva Conventions directly confer certain (international law) rights on it;17' individuals are considered to be, at least partly, subjects of international law because they enjoy human rights directly as a result of international law and because they are directly obliged by international law not to commit certain internationally criminal acts such a genocide, crimes against humanity, and war crimes.'72 In all these cases the international legal order wants to confer a certain status upon non-state actors by directly giving them rights and/or obligations. If the international legal personality of non-state actors really depends upon international law then it seems appropriate to take a closer look at the meaning of international law in order to find out whether non-state actors really are direct addressees of human rights obligations. Today, there is renewed interest in the question whether there are real direct legal obligations for non-state actors contained in international human rights '15' See A. Drzemnewski. 'The European Human Rights Convention and Relations between Private Parties', 26 NILR (1979) 163; Andrew Clapham, 'The Drimuirkung of the Convention', in R.St.J. MacDonald ct al. (eds). The European Systm fir the Protection of'Human Righn (1998) 21; M. Hunt, 'The Horizontal Effect of the Human Rights Act', Public LUW (1998) 423; Ingo von Munch rt al., srrpra note 8 . Shaw, rupra nore 56, at 171. Ibid., at 192. Ibid., at 182.

"'

Non-State Actors and International Law The Changing International Legal Framework instruments. In this context one point of departure is the fact that, while states are clearly the primary addressees of human rights obligations, the language of core human rights instruments does not narrowly restrict itself to states. The 1948 Universal Declaration of Human Rights and the two 1966 U N Human Rights Covenants stipulate that '[nlothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.'173 Similarly, the idea of 'private' duties with regard to human rights174-in addition to the traditional, exclusive 'public' duties of states-finds some support in positive law. The Universal Declaration speaks of a duty of 'every individual and every organ of society' to 'strive to [. . .] promote respect"75 and the two UN Covenants even of a 'responsibility' 'to strive for [he promotion and observance' of human rights.176Although this development may not yet lead to the availability of adequate procedural remedies, it has now been reaffirmed by various human rights bodies that the core of human right obligations are binding on all parts of society including the non-state actors. For instance, the CESCR stated in its General Comment No. 14 that '[wlhile only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society-individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well 'as the private business sector-have responsibilities regarding the realization of the right to health. State parties should therefore provide an environment which facilitates the discharge of these responsibilities.'177With respect to TNCs the recently adopted Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights of the UN Sub-Commission on the Promotion and Protection of Human Rights similarly provide that '[wlithin their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law [. . .I. ,178 17' Art 30 Universal Declaration of Human Rights, UN G.A. Res. 217 (1948). Similar language can be found in Art 5(1) of the two 1966 UN Covenants as well as in Art 17 ECHR. '74 Chris lochnick, 'Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Righrs', 21 Human Rights QuarrcrLy (1999), 56; Jordan J. Pausr, 'The Other Side of Right: Private Duties Under Human Rights Law', 5 Ham. Hum. R. J. (1992), 51. 175 Preamble, Universal Declaration of Human Rights, supra note 173. The last preamble paragraph of both Covenants reads in full: 'Rcrtlizing that the individual. having duties to orher individuals and to the communiry to which he belongs, is under a responsibility ro strive for the promotion and observance of the rights recognized in the present Covenant'. 17' UN Committee on Economic, Social, and Cultural Rights. General Comment No. 14: 'The right to the highest attainable standard of health', 11 August 2000. U.N. Doc. E/C.12/2000/4, para. 42. 178 UN Sub-Commission on the Promouon and Protection of Human Rights. Norins on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Sec. 1 2nd sentence. Rights, E/CN.4/Sub.112003/12IRev.L,

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This trend has also manifested itself in the privately endorsed, legally non-binding Asian Human R~ghtsCharter 1998 which confirms the 'primary responsibility' of states for the promotion of human rights but declares in paragraph 2.8: 'The capacity of the international community and states to promote and protect rights has been weakened by processes of globalization as more and more power over economic and social policy and activities has moved from states to business corporations. States are increasingly held hostage by financial and other corporations to implement narrow and short sighted economic policies which cause so much misery to so many people, while increasing the wealth of the few. Business corporations are responsible for numerous violations of rights, particularly those of workers, women and indigenous peoples. It is necessary to strengthen the regime of rights by making corporations liable for the violation of rights.''79 M these developments point in a similar direction. It can be credibly asserted that a contemporary reading of human rights instruments shows that non-state actors are also addressees of human rights norms. If this interpretation is supported by the adoption of legally binding codes of conduct in the future, for instance via treaties, there remains no serious obstacle to considering non-state actors, in this context most likely TNCs, to have gained, at least to some extent,'" international legal personality.'81 As convincing as this reasoning may appear, it still has not wholly rid itself of a certain feeling of circularity.'82 Why would we want to show that non-state actors are subjects of international law? T o demonstrate that they may be direct addresses of human rights obligations. How do we try to show that they are subjects of international law? By asserting that they are direct addressees of human rights obligations under international law. Truly, the suspicion that the whole matter of international legal personality forms a vast intellectual prison and that 'the whole notion of subjects and objects has no credible reality and [. . .] no hnctional purpose"83 is sometimes hard to suppress.

F. Human Rights and General Public International Law: New Intersections Instead of Fragmentation

Nowadays, the fragmentation of international law into special sub-fields, maybe sub-systems, or even self-contained regimes, is frequently deplored as threatening 17' Asian Human Rights Charter, declared in Kwangju, South Korea, 17 May 1998. Available at http:l/www.ahrchk.net/&a~terlpd~/chaner-final.pdf. I no As early as Reparation fir fnjrrrirs Suffered in the Scrvice of the United Nations, Advisory Opinion, ICJ Reports (1949), 174, 178 the ICJ held that '[[]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and the nature depends on the needs of the community'. 181 See Nicola Jagers, 'The Legal Status of the Multinational Corporation Under International Law', in Michael K. Addo (ed), Hrrman Right3 Standards and rbc Rrrponsibiliiy ofTransnationa1 Corporations( 1 999) 259. at 270. I" See Derek W. Bowett. The Luw of International fnrtinrtionr (4th ed., 1982) 337. In3Higgins, rupra note 6. 49.

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73

the coherence and uniry of international law. Remarkably, this concern apparently prompted the UN's International Law Commission to create a working group to study the phenomenon.'84 It has also led other institutions to pay attention to the various aspects of fragmentation such as the Project on International Courts and ~ r i b u n a l s , focusing '~~ an the proliferation of specialized international courts which, institutionally, may also contribute to the fragmentation of international law. With all due respect for the perceived and actual risks of fragmentation in international law, it appears that with regard to human rights law and nonstate actors chis danger has not materialized, quite the contrary. Whereas human rights law may traditionally have been regarded as a rather arcane sub-field of international law where only specialists had a say, something outside of the international law mainstream, today's human rights law seems to have entered the broader international law arena. The changing framework under which human rights are no longer relevanc not only vis-2-vis states but also with regard to non-state actors may have contributed considerably co this situation. Business and trade lawyers have to deal with human rights issues today. In the past, lawyers advising TNCs or international organizations could probably state confidently rhat they did not have to care about human rights law because it had no practical relevance for them. With increasing demands for human rights compliance by these nonstate actors, they are forced to deal with human rights. Human rights law appears to 'encroach' upon all ocher fields of law, including trade and investment, ' ~ ~might even speak of a slow human rights 'intrusion'. commercial law, e t ~ . One Hardly any field of international law remains unaffected by human rights. At a minimum, it seems that the inter-relatedness of human rights and other parts . I ~ ~also witnesses such crossof international law is increasingly r e ~ 0 ~ n i z e d One fertilization of sub-fields of international law in other areas. The traditionally separate areas of GATT and EC law have increasingly become interrelated, and I84

See Report of the Study Group on the Fragmentation of International Law, AlCN.4lL.628,

1 August 2002, availableat http:lldaccess-ods.un.org/dodUNDOC/LTD/GO2/632/93/PDFlGO263293.pdf?

OpenElement. The original title of the subject of the ILC Working Group was 'The risks ensuing from the fragmentation of international law', a topic included in the ILC's programme of work. Subsequently, the title of the topic was changed to 'Fragmentation of international law: difficulties arising from the diversification and expansion of international law'. See http://www.un.org/law/ilc/scssions/54/54sess.hun. See htcp:llwww.pict-pcti.org/home.html. In' See also recent academic literature, for instance, Stephen Bottomley and David Kinky, Commrrcial Law and Humnn Righrs (2002); Janet Dine, 'Human Rights and Company Law', in Michael K. Addo (ed), Human Rights Standnrdc and the Responsibiliq of'Tranmational Corporations ( 1999) 209. See also the report of the UN High Commissioner for Human Rights, Business and Human Rights: A Progress Report, available at www.unhchr.ch/business.htm;Amnesty International (Dutch Section) and Pax Christi International, Multinational Enrerprzscs and Human Rights (1998) available at http://www.paxchristi.nl/ rnne.hrmi. 187 See Philip Alston. 'The Myopia of the Handmaidens: lnternarional Lawyers and Globalisation'. 8 EJIL (1997), 435, ~t 447, who, in 1997, was nor convinced rhat the 'comparrmentalization' of human rights values within a small part of the discipline of international law had been overcome.

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August Reinisch

while lawyers could once specialize in one field, totally ignoring the other, such isolation is no longer feasible.lS8

5. UNDERLYING CAUSES OF T H E PERCEIVED CHANGES Once we try to look beyond certain trends and features describing the changing framework of dealing with non-state actors by trying to explain it, or (more appropriately) trying to identify possible underlying causes of the perceived changes, we are entering highly speculative gounds. Nevertheless, I would like to put the phenomena observed into a broader context and offer some possible partial explanations.

A. Demise of the Nation State; Rise of Non-State Actors The trend towards viewing non-state actors as direct addressees of human rights and other norms of international law may have to do with a major structural change in the international legal order: the decrease and partial disappearance of the concept of the state as a 'mediating"89 factor between the international law level and the rights and duties of non-state actors. The 'waning', 'retreat', or 'demise' of the sovereign state, the centrepiece of the Westphalian concept of the international legal order, has been described, denied, deplored, and applauded for some time in the discourses of international relations and international law, history and sociology, and other

discipline^."^ The declining role of states, manifested through their declining power, leads to the attempt to address non-state actors directly and goes hand in hand with the increase of power and influence of the latter. If it is true that 'with power comes I88

Cf. J.H.H. Weiler, 'Cain and Abel: Convergence and Divergence in International Trade Law', in

J.H.H. Weiler (cd), The EU,thc WTO and the NAFTA (2000) 3.

'"

German international law doctrine uses the term Mtdiatiriemng of non-state actors through states to describe the fact that international law norms are addressed to states only. Even ifthey ultimately intend to regulate non-state behaviour, states have to come in as 'intermediaries' in order to translate the international Law norms into domestic ones. See Karl Zemnek, 'Verancworrlihkeit und Sanktionen', in Hanspeter Neuhold, Waldemar Hummer and Christoph Schreuer (eds), Osterre~chischcsHandbuch drr VoIRcrrechts (3rd ed., 1997) 463. See Joseph A. Camilleri and Jim Fdk, Tht End O f Sovereignly? The Politics Of A Shrinking And Fragrnmting World (1992); Martin van Creveld, The Risc and Dccline of the State (1999); Kenichi Ohmae, The End ofthe Nation Start (1995); Vivien A. Schmidt, 'The New World Order, Incorporated: The Rise of Business and the Decline of the Nation-State', Daedalw (1995) 75; Oscar Schachter, 'The Decline of the Nation-State and its Implications for International Law', 36 Colum.j. Trarunat'l L. (1997) 7 ; Christoph H. Schreuer, 'The Waning of the Sovereign State: Towards a New Paradigm for International Law?', 4 EJIL (1993) 447; Susan Strange. The Retrtat of the State: The Dlfision of Power in the World Economy (1996); Serge Sur, 'The State between Fragmentation and Globalization'. 8 EJIL (1997) 421.

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responsibility'"' then it is only logical to demand human rights observance by those non-state actors which are now as powerful as some states and may thus violate human rights in the same way as states.'92

B. The Retreat of the State as H u m a n Rights Addressee and as '

Human Rights Guarantor

In the current discourse states appear to be no longer the sole addressees of human rights obligations. Attention has shifted to a large degree to non-state actors. But states have also retreated as prime guarantors of human rights. Non-state actors have taken over to set standards, to secure compliance, and to enforce human rights expectations. NGOs, trade unions, church groups, and others no longer rely on the willingness of states and governments to regulate TNC behaviour. Rather, they increasingly put direct pressure on companies and international organizations by mobilizing public opinion.'" This can already be viewed as another form of the 'privatization' of human rights through 'privatized' standard setting, 'privatized' supervision, and 'privatized' e n f ~ r c e m e n t . ' ~ ~ C. Global Trends Toward Privatization

If one reflects upon the changing legal framework of dealing with non-state actors and upon the question why non-state actors are more and more conceived as addressees of human rights norms, potential causes for this change come to mind. One very tempting explanation lies in the fact that non-state actors become more and more powerful and increasingly take over hitherto state functions. This development is, in turn, closely linked to the dual trends ofshifting governmental tasks to international organizations on one hand and to private entities on the other.'95 'Privatization' has not stopped at making inefficient stare-owned enterprises more competitive. TNCs have entered what used to be in many countries 'reserved' state businesses in the 'public service' fields, through the privatization of electricity, gas, and other energy supply services."' But they have not halted there. Private 19' UN Sub-Commission on the Promotion and Protection of Human Rights, Sessional working group on the working methods and activities of transnational corporations, Transnational Corporations and Other Business Enterprises, EICN.4/Sub.2/2002/WG.2~.1/Add.1, 24 May 2002, 5. 1% See Ratna Kapur, 'From Human Tragedy to Human Rights: Multinational Corporate Accountability for Human Rights Violations', 10 Borton Colftgc Third World L.j. (1990) at 2. '91 See McCrudden, rupra note 40, 172. See i n j a text at note 195, for the consequences of traditional 'privatization' in the sense of delegating or outsourcing hitherto starc functions to private non-state actors. 1'15 See August Reinisch, 'Governance without Accountability?', 44 Grnnan Yearbook of Intrrnationnf Law (2001L 270. See also Wilde, rrcpra note 68, at 113. 1% Where non-state actors, usually TNCs, enter the public service-providing industry the traditional sphere of the Drimvirkzings debate comes into play. It may limit party autonomy and thus thc providers' contractual freedom by an obligation to contract with priv&e consumers. ctc. In addition, competition

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companies are now even running prisons and detention centres for immigration services.1y7It is obvious that this requires additional checks and controls on these private actors in the public field. The security forces in 'private prisons' may treat the inmates as badly as public police forces have done. This danger of the privatization of public functions has been clearly recognized by human rights bodies. For instance, in its Comment on the UK's state report under the ICCPR, the Human Rights Committee stated that it was 'concerned that the practice of the State party in contracting out to the private commercial sector core State activities which involve the use of force and the detention of persons weakens the protection of rights under the oven ant'.'^^ At the same time states are increasingly transferring large areas of public functions to international organizations. It is the combined pressure of 'out-sourced' activities that makes human rights protection against non-state behaviour such an urgent task for the future, because only an effective system of dealing with non-state actors will prevent a situation of unaccountabiliry.

D. Globalization Not surprisingly, since all the above reasons are already pointing towards it, globalization is also a prime suspect giving rise to many of the changes perceived in dealing with non-state actors and human rights. Of course, one should be very carefd when talking about 'globalization' which means too many different things to different people. Pointedly, 'globalization' has been called 'the most overused and underspecified concept in the lexicon of the social sciences and policy sciences since the end of the cold war'.19' It is not intended to develop a new theory or even a new definition of globalization here. However, building on a commonly shared understanding of some of the characteristicelements of globalization, it is interesting to see how many of the changes observed may be nicely explained. For our purposes, we can take 'globalization' to mean an increasing process of cross-border societal exchanges and transactions, not limited to economic ones, but including among others communication, security, culture, mobility, and environment, or, as it has been termed, the 'widening, deepening and speeding up of worldwide interconnectedness in all types of contemporary social life, from the cultural to the criminal, the financial to the spiritual'.200But 'globalization' did not just 'happen', it law devices, similar to the prohibition against abusing a dominant position under Art 82 TEC, may help to tame the free play of market forces to the detriment of consumers through discriminatory pricing, etc. '91 According to Kamrninga, supra note 143, at 559, in the US 5% of prison capacity is run by private companies. The largest of these, Corrections Corporation, also operates overseas in the UK and Australia. See www.correctionscorp.com. I98 Comments of the Human Rights Committee, U.N. Doc. CCPR/C/79/Add. 55, 27 July 1995. Richard Higgott, 'Economic Globalization and Global Governance: Towards a Post-Washington Consensus?',in Rittberger, supra note 71, 127, at 128. 200 David Held, Anthony McGrcw, David Goldblatt, and Jonathan Pertaton, Global Tranrfonnarion: Politicr, Economicr and C111turc(1999) 2.

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is also, to an important degree, the result of deliberate political choices. The neoliberal credo of 'Reaganomics' and 'Thatcherism,' advocating economic liberalization, deregulation, and privatization,20' subsequently espoused by the IFIs as Washington contributed largely to the 'retreat of the state'.'03 If w e ;dent& as p-oducts of t h e increased influence of TNCs and other non-state actors, the role of global communications and the media, the enormously enhanced interdependence of states in the fields of trade and investment, services, and finance204we can observe the preconditions for some of the perceived changes described above. The way we deal with human rights and nonstate actors can be seen both as a response to globalization and as a way of using the vehicles of globalization. Demands for human rights accountability on the part of non-state actors is in many respects a consequence of the fall-out, the negative spillover, of an increasingly globalized economy. The loss of state control over TNCs, and the promotion of liberalizauon, privatization, and deregulation by IFIs, contributed to a situation where human rights, particularly social and labour rights, but also the environment and other societal goods, are increasingly threatened by non-state a ~ t o ~Codes s . ~of~ conduct ~ may be regarded as the self-regulatory (or market-induced) approach to the loss of control over powerful non-state actors. Whereas increased resort to extraterritorially, feasible only for the few remaining powerful state or quasi-state actors such as the US and the EU, demonstrates the resolute will of the main international actor, the sovereign state, not to give in. At the same time, the human rights response to globalization relies on the advances of globalization. Global consumer boycotts require an effective Bow of information between activist NGOs and the media in order to convey their messages. They rely on the internet as a crucial vehicle of communication and have on various occasions masterfully employed modern technology for their purposes.20" The information revolution makes corporate wrong-doing more rapidly and more broadly visible. At the same time, the enhanced information flow created by globalization has also contributed to a strengthening of the notion of truly universal and indivisible human rights, to what could be called a 'globalization of human See Christoph Scherrer, Globalirirrung widcr Willen? Die Durchsetzung libcralcr '02 See Higgott, supra note 199, 127. AuJenwirtschafipolitik in a h USA (1999). ' 0 3 See Susan Strange, The Rcrrcat of the State (1976). 204 See Andrew Clapham, 'Globalization and the Rule of Law', The Review: International Commission ofJurisa No. 61 (1999) 17. '05 See also U N Sub-commission on the Promotion and Protection of Human Rights, Sessional working group on the working methods and activities of transnational corporations, Transnational Corporations and Other Business Enterprises, ElCN.4/Sub.2/2002/WG.2N(rP.lIAdd. 1, 24 May 2002, 3. The International Campaign to Ban Landmines, the N G O Coalition for an International Criminal Court, and the Anti-MA1 campaign during the 1990s are impressive examples of the ability of non-stare actors to influence political decisions of states. See Tanja Briihl and Volker Rittberger, 'From International to Global Governance: Actors, Collective Decision-Making, and the United Nations in the World of the Twenty-Firsr Century', in Rittberger, supra note 71, at 8. See also Margaret E. Keck and Kachryn Sikkink. Actiuists btyond Borders: Aduocaq Networks in International PoLtics ( I 998).

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Augwt Reinisch

rights',''' although one should not overlook the fact that this may be a one-sided Western view whose universality is denounced elsewhere as 'cultural imperialism'.

6. INSTEAD OF A CONCLUSION-OUTLOOK: WHAT CAN BE DONE T O SAFEGUARD HUMAN RIGHTS AGAINST INFRINGEMENTS BY NON-STATE ACTORS? Where non-state actors replace states in the exercise of public functions, where states are no longer directly responsible for those activities, there is an apparent need to devise systems of accountability, including legal responsibility, for non-state behaviour, particularly, of behaviour that may infringe upon human rights. We are currently witnessing a very dynamic evolution of accountability mechanisms ranging from a more structured form of economic pressure, such as consumer boycotts and ethical investing, to legal liability enforced by national courts. All these are expressions of changes in legal thinking, in the conceptualization of the content and safeguarding of human rights. New frontiers are explored in theory and practice, by doctrine and litigation, and it is hard to predict which trends might ultimately crystallize into a new framework of human rights law relevant to non-state actors. The following section focuses on the l ahta as well as the future potential for legal responsibility for non-state behaviour. Such responsibility systems could be located either on the level of international law or on the level of national law. The following section addresses these two options in turn. It starts by describing the growing perception that states may continue to be held responsible for non-state activities, including those of international organizations, TNCs, and NGOs. Still on the international law level, the question of direct respon;ibility of non-state actors and the concomitant issue of the availability of procedures and institutions is then addressed. Finally, the very lively development with regard to liability under domestic law before national courts is analysed and its potential for the future is addressed.

A. State Responsibility for Non-StateActivities In the traditional concept of human rights, only states were considered to be bound by human rights law and thus only state behaviour could lead to its responsibility in international law. However, we are now witnessing a clear departure from this purely state-centred approach. It has become more and more evident that even existing international human rights instruments could be interpreted so as to lead to state responsibility for non-state activities. This awareness has found its expression not only in legal doctrine,208 but also in a number of decisions by international bodies. 207

McCorquodale. supra note 85, at 9 1 . See Clapham, supra note 29; Kamminga, supra note 143; Kinky, s t p a nore 53, at 38; Peter T. Muchlinski. 'Human Rights and Multinationals: Is There a Problem'. 77 Forrzgn Affairs (2001) 31. 108


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The Changing International Legal Framework

79

The basic theoretical premise for 'vicarious' or 'indirect' human rights liability of states for non-state activities is deduced from various human rights instruments, which demand that states not only 'respect' human rights, but also 'ensure', 'protect', or 'secure' them.209If there is an obligation on states to ensure human rights f o r

'all

individuals' t h e n t h i s obligation can

be u n d e r s t o o d

to

imply that such

duty may be violated if states fail effectively to protect against human rights infringements by non-state parties. Building on the traditional 'due diligence' requirement under customary international law,210 human rights bodies have interpreted obligations to 'ensure' as state obligations to take measures to prevent non-state violations of human rights. As a consequence, the UN Human Rights Committee held states responsible for failing to do so Also in its General Comments the Committee has used a concept of the 'horizontal effect' of human rights provisions. In its General Comment on the ICCPR's torture prohibition it stated: 'It is the duty of the State Parry to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by Article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private This idea of a vicarious state responsibility for non-state acts was formulated even more expressly by the UN For instance, Art 2(1) ICCPR, supra note 11, provides that 'each State Party [. . .] undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant [. . .]' Similarly, Art 1 of the American Convention on Human Rights provides that 'The States Parties to this Convention undertake to respect the rights and freedoms recognized therein and to ensure to all persons subject to cheir jurisdiction the free and full exercise of those rights and freedoms [. . .I' According to Art 1 ECHR 'The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention'. 210 See Shaw, supra note 56, at 556. See also Giuseppe Sperduti, 'Responsibility of States for activities of private law persons', in Rudolf Bernhardt (ed), IV Enrycloprdia ofpublic Inrrrnational Law (2nd ed., Vubaltrn 2000) 216; Astrid Epiney, Die voIkmrchtliche Vcrannuorrlichkcir uon Staatrn firr re~htswidri~cs im Zusammcnhang mit Aktioncn Privater (1992). See also the reasoning of the Vrhqucz Rodriguez case, in& note 214. ' There is a clear tendency by international courts to interpret this due diligence requirement broadly. In 1997 the ECJ stunned many observers by holding France responsible for a violation of the free movement of goods provisions under the EC Treaty resulting frorn a failure by French officials to rake all necessary measures to prevent private parties, French farmers, from obstructing the free movement of Spanish agricultural products: Case C-265195, Commission u. France [I9971 ECR 1-6959. ''I For instance, in Dclgado Paiz u. Colombia, No. 19511985, the Human Rights Committee found a violation of the right to personal securiry under Art 9(1) ICCPR because the respondent government had failed to take appropriate measures to protect the applicant. In SantuNo v. Uruguay, No. 911977, a case involving torture by unidentified persons, the same Committee held that Arts 2 and 7 ICCPR had been violated because the government had failed to ensure the applicant's physical integrity with an official investigation. General Comment No. 20 (44) 1992 Art 7, CCPR/C/21/Rcv. 1lAdd.3. This broad view clearly contrasts with the restrictive notion used in the Convention against Torture, G.A. Res. 46 (XXXIX) (1984) Art 1 defines torture as: 'any act by which severe pain or suffering, whether physical or mental, 1s intentionally inflicted on a person for such purposes as obtaining frorn him or a third person information 209

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August Reinisch

Committee on the Elimination of Discrimination against Women, which stated that: 'discrimination under the Convention is not restricted to action by or on behalf of Governments. . . Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing Regional human rights institutions have also espoused this reasoning in their caselaw. In its well known Ve&squez'Rodriguez judgment, the Inter-American Court of Human Rights held in the case of disappearances that 'an illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the onv vent ion'.^'^ The Strasbourg court h& also adopted a similar reasoning with regard to human rights violations by non-state actors. In Costello-Roberts, a case concerning corporal punishment in a privately run school in the UK, ;he European Court of Human Rights held that 'the State cannot absolve itself from responsibility by delegating its obligations to private bodies or i n d i v i d u a ~ s ' .Though ~~~ a majority found that the treatment did not amount to a violation of the Convention's prohibition of inhuman or degrading punishment, the Court's minority view expounded on the potential liability of the UK by adding that '[a] State can neither shift prison administration to the private sector and thereby make corporal punishment in prisons lawful, nor can it permit the setting up of system of private schools which are run irrespective of Convention par an tee^'.^" The European Court of Human Rights continues to rely on the underlying rationale of the Costello-Roberts case that states parties to the Convention cannot absolve themselves from their human rights obligations by delegating their tasks to non-state actors. It has also applied it with regard to acts of international organizations. In Waite and Kennedy, a case more narrowly dealing with the human rights compatibility of wide-ranging grants of or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It docs not include pain or su&ring arising only from, inherent in or incidental to lawful sanctions.' *I3 UN Committee on the Elimination of Discrimination against Women, General Recornmenahtion 19, 'Vioknre against women', 30 January 1992, U.N. Doc. N47138, para. 9. 'I4 V e h q ~ e Rodn'gucz z U. Hondurar, Inter-American Court of Human Rights, 29 July 1988, Ser. C, No. 4, 9 HRLJ 212 (1988), para. 172. 'I5 Costello-Robmr u. UnitedKingdom, European Court of Human Rights, 1993, Series A, No. 247-C, para. 27. 216 Ibid., Joint Partly Dissenting Opinion of Judges Russdal, Thor Vilhdmsson, Matscher, ?nd Wildhaber, 64.


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jurisdictional immunity to international ~ r ~ a n i z a t i o n s , ~the " Strasbourg Court stated very broadly that '[ilt would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby [i.e. by establishing international organizations in order to pursue or strengthen their cooperation in certain fields of activity and by attributing to these organizations certain competencies and according them immunities] absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution'.218 Most recently, in the Matthews case, also known as the Gibraltar voting case,'19 this reasoning was re-confirmed. There the European Court of Human h g h t s found a human rights violation on the part of the UK stemming from an act of the international organization, the European Community. In the Court's view the violation of the Convention by the EC member state resulted from the member's failure to ensure that its obligations under EC law did not violate the ECHR. This case is also remarkable in respect of the procedural issue of bringing a complaint against an international organization's behaviour. For a long time it was well settled case-law of the European Commission of Human Rights that it would not allow claims against an organization's member states, either individually or collectively, for human rights violations attributable to the organization.220 The policy rationale underlying such 'vicarious' or 'subsidiary' liability is clear: to increase pressure o n states by continuing to hold them responsible for 'out-sourced' or 'delegated' activity in order to make sure that they have a direct interest in regulating the behaviour of non-state actors to whom they have transferred state tasks. This idea was clearly expressed by the UN Human Rights Committee which, after displaying its concern about 'the practice of [a] State party in contracting out to the private commercial sector core State activities which involve the use of force and the detention of persons weakens the protection of rights under the ovena ant',^^' underlined that a 'State party remains responsible in all circumstances for adherence to all articles of the This reasoning applies to both international 'I7 Caseof WaitrandKennedy u. Germany, Eur. Court H.R., Judgment of 18 February 1999; available at http://ww.dhcour.coe.fr/hudoc.See August Reinisch, ' C a r of W a i v and Kennedy u. Gmnany, Application No. 26083194; Cue of B m and Rcgan u. Germany, Application No. 28934195, European Court of Human fights, 18 February 1999'. 93 AJIL (1999) 933. 2'"aite and Kennedy u. Germany. supra note 217, para. 67. Denise Manhms u. United Kingdom, ECrHR, Application No. 24833194, Feb. 18, 1999; available at http:l/ww.dhcour.coe.fr/hudoc. See Henry G. Scherrners, 'European Court of Human Rights: Matthews v. United Kingdom, case note concerning the decision of the European Court of Human Rights', 18 February 1999, 36 Common Market L. Rm. (199% 673. 220 Concerning the European Communities see M(e1chrrs) & Co. u. Federal Republic of Germany, ECommHR, Application No. 13258177, 9 February 1990, 64 DECISIONS AND REPORTS(1990), 138; concerning the European Patent Organization see Hernz u. Contractrng Pnrtzer who arc also Parnes to the European Patent Conuenrion, ECommHR, Application No. 12090192, 10 January 1994,76-A DECISIONS A N D REPORTS(1994), 125. Commcnrs of the HR Committee, U.N. Doc. CCPR/C/79/Add. 55, 27 July 1995. 222 Ibid.

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August Reinisch

organizations and TNCs as well as to other non-state actors. States cannot 'absolve' themselves from their human rights obligations by delegating their tasks to private parties, individuals, or international organizations. The privately sponsored Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights of 1997, going beyond the idea of continuing responsibility of states even for delegated activities, revert back to the original core of the responsibility of states to protect human rights by insisting that 'The obligation to protect includes the State's responsibility to ensure that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their economic, social and cultural rights'.223 Clearly this reasoning has a great potential for the future. States, by becoming indirectly responsible for non-state human rights violations, will have a strong incentive to prevent such non-state behaviour. They can do so either by reducing the scope of delegated activities-a rather unlikely scenario given the present trends of privatization, outsourcing, and empowering of international ~r~anizacions~~*--or by strengthening the legal framework calling for the observance of human rights by non-state actors.

B. Direct Accountability of Non-State Actors under International Law and before International Tribunals? Direct accountability of non-state actors is underdeveloped in human rights instruments, and in international law in general, but it is not wholly excluded, either on the level of substance or that of procedure. At present one certainly cannot speak of any established system of international mechanisms whereby nonstate actors are held directly accountable for human rights violations, even though one might recognize an increasing awareness that they are considered to be directly bound by human rights obligations.225 However, a number of recent developments may lead to a ~rofoundchange in how we conceptualize human rights obligations and the human rights accountability of non-state actors. It is not surprising that these are most advanced with regard to international organizations which have been considered to enjoy subjectivity or personality under international law for some time. Thus, the basic idea that they may be directly obliged under international law to respect human rights no longer meets major objections as a matter of principle. But we still seem to be far from establishing the 'jurisdiction' of international bodies to scrutinize the human rights performance of international organizations.226 International organizations are most likely to be considered potential 'objects' of human rights complaints before international human rights forums. Nevertheless, 123 Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights of 1997, reprinted 214 See rrrpra text at note 195. in 20 Human Rightr Quart4v ( 1 998) 69 1. 225 See supra text at note 173. lZG See Reinisch, rupra note 57.


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even in the most 'progressive' human rights forums, including the Strasbourg institutions, it is well settled case-law that human rights bodies generally do not consider themselves competent to decide upon human rights complaints against international organizations which are not parties to the relevant treaty instrument, even if all or some of its member states are.227The Mattbews case suggests that the European Court of Human Rights might be willing to hear complaints against member states of international organizations with regard to activities attributable to those international organizations228 but that does not appear to change the basic premise that international organizations, not parties to the ECHR, are not subject to the Court's jurisdiction. In the view of the European Court of Human Rights its jurisdiction is strictly limited to Contracting Parties. However, insisting on such a formal requirement is not an absolute legal necessity in order to exercise jurisdiction. It would be possible to transfer the idea of a 'functional treaty succession' for these purposes. A 'functional treaty succession' of the EC into the legal position of the EC member states was assumed in the framework of the GATT.~~'When the EC had taken over all the relevant foreign trade powers from the member states it was treated as a member of the G A I T without ever formally adhering to the agreement.230Conceivably, such a functional succession could be pertinent with regard to states which have transferred their human rights-sensitive tasks to international organizations.231 In the EU context, the via regis appears to be accession to the ECHR on the part of either the Union or at least the supranational organizations, EC and EURATOM. Such accession, rejected by an advisory opinion of the ECJ in the early 1990s,2'~ would eliminate the procedural dilemma by directly subjecting the organization to the jurisdiction of the European Human Rights Court. It is interesting to note that, maybe partly as a result of the Manhews case,233 the EU member states are

'"

See Confideration Franpise Ddmorratique du Traoail v. European Communitit-r, alternatively their Member States (a) jointly and (6) sruerally, European Commission on Human Rights, Application 228 AND REPORTS231. No. 8030177, 10 July 1978, 13 DECISIONS See supra note 2 19. 229 Cf. Ernst-Ulrich Petersmann, 'The EC as a GATT Mcmber: Legal Conflicts benvecn GATT Law and European Community Law', in Hilf/Jacobs/Petersmann (eds), The European Community and G A m (1986) 23, at 73. 230 The ECJ held in this regard that '[. . .] in so far as under the EEC Treaty the Community has assumed the powers previously exercised by Mcmber States in the area governed by the General Agreement, the provisions of chat agreement have the effect of binding the Communiry': IntemationalFruit Company v. Produktrchap voor Grurnten en Fruit, Joined Cases 21-24/72, [I9721 ECR 1219, 1227. 23 1 See the argument advanced by the European Commission in Watson and Belmann that '[f lollowing its ratification by [dl] the Member States, the Convention is now legally binding upon the Community': Case ll8/75. [I9751 ECR 1185, at 1194. 132 Accersion of the Community ro the E~tropcan Convention for the Protection of Human Rights and FunLmental Freedomr. Opinion 2/94. 28 March 1996. ECR 1-1753. Scc also J. Kokott and F. Hoffmeister. 'Opinion 2/94. Accession of the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms'. 90 AJIL (19961 664. 233 See supra note 219.

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reconsidering this option.234Apparently they dislike being held accountable for acts of international organizations which they cannot fully control. If this motive can be verified it demonstrates that the indirect enforcement of human rights obligations of non-state actors by holding states liable in a 'vicarious' or 'subsidiary' fashion may prove effective. T o remain with the special case of the EU, one must also mention the possibility of bringing a human rights challenge against acts of the EC and EURATOM, and to a limited extent now also of the EU, before the ECJ. Though not originally provided for in the 1957 Treaty of Rome and never expressly included in any of the subsequent amendments, the fundamental rights challenge has been developed by the ECJ as one of the grounds for annulment,23s thus opening up the procedural avenue of annulment actions for human rights complaints.236 From a traditional international law perspective one could say that in such a case an international court scrutinizes the human rights performance of an international organization. Without entering into the debate about whether the European supranational organizations fit into the traditional category of international organizations,237one has to acknowledge that at present the fundamental rights jurisprudence of the ECJ more closely resembles the task of judicial/constitutional review of a national supreme or constitutional court than an outside human rights body assessing the human rights 234 See Working Group on Incorporation of the Charter/Accession to the ECHR, Modalities and consequences of incorporation into the Treaties of the Charter of Fundamental Rights and accession of the CommunityIUnion to the ECHR, CONV 116102, WG I1 1, Brussels, 18 June 2002, at 21, available at http://register.consilium.eu.int/pdf/en/O2/O/OO116en2.pdf. Meanwhile the Drafi EU Constitution provides in Art 7 para. 2 first sentence that 'The Union shall seek accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms', Draft Treaty establishing a Constitution for Europe, Brussels, 18 July 2003, CONV 850103, available at http://european-convention.eu.int/ d0cs/Treaty/cv00850.en03.~df. 235 According to Art 230 (ex 173) EC Treary, the ECJ is competent to annul any 'act' of the EC institutions if its adoption constituted an 'infringement of the treaty or any rule of law relating to its application'. 236 The early leading cases arc Case 29/69, Staudcr u. City of Ulm [I9691 ECR 419; Case 11/70, Intcmationalc Handrhgese&hafi u. Einfihr- und Vorratsstrllcfiir Getreidr und Fuitmnittel (19701 ECR 1125; Case 4/73, Nold v. Commission [I9741 ECR 491; Case 44/79, Haucr v. Rheinhnd-va& [1979] ECR 3727. This judicial approach was 'codified' in An 6(2) (ex F(2)) EU Treaty: 'The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common td the Member Stares, as general principles of Community law'. See also B. De Witte, 'The Past and Future Role of the European Court of Justice in the Protection of Human Rights', in Philip Alston (ed), The EUand Human Rights (1999) 883; Antonio CasseseIAndrew ClaphamIJoseph Weiler (eds), European Union: The Human Rights Chalhngc (1991); M . Dauses, 'The Protection of Fundamental Rights in the Community Legal Order' (1985) 10 European h w Rev. 398; J . Weiler and N. Lockhart, '"Taking Rights Seriously" Seriously: The European Court and its Fundamental Rights Jurisprudence', 32 CMLRev. (1995) 51 and 579; N. Ncuwahl and A. Rosas (eds), The European Unron and Human Rights (1995). '37 Since its 1964 landmark case Costa v. ENEL. Case 6/64 [I9641 ECR 585, the ECJ asserted that the EC stands for a 'new autonomous legal order'.


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conformity of an international organization. Apart from such doctrinal difficulties with the possibility of generalizing from the EU example one has to recognize that the fundamental rights protection within the EU legd order is unique and has not (yet) been followed by other international organizations.

It is unclear whether the potential for human rights scrutiny of the acts of international organizations can be extended to other non-state actors, such as TNCs or NGOs. O n the international level there is a definite lack of procedures and/or institutions available for this task. The question is whether it is still convincing to attribute this accountability gap to the lack of international legal personality of these non-state actors. International law provides many examples where non-state actors, particularly TNCs, have direct access to international dispute-settlement procedures and where they are considered to enjoy rights directly under international TNCs appear as plaintiffs against states in various ad hoc and institutionalized arbitration systems, such as that under the ICSID onv vent ion.^^' One could thus argue that they should have not only rights but also obligations. If one remains with the ICSID Convention as a point of reference, one can see that the reciprocal element of direct obligations is already included there. The investors as non-state parties may not only institute arbitration, they may also be sued before an ICSID panel. Thus, one might argue that it would be a progressive next step to establish judicial or quasi-judicial forums competent to hear human rights complaints against TNCs. The problem in the human rights field is, of course, that we would be dealing with complaints by non-state actors, the victims of human rights violations, against other non-state actors: private actors against private actors. This is different from the mixed arbitration in the area of investment law. Nevertheless, the broadening of the spectrum of entities considered to be in a position to enjoy rights and obligations, including procedural standing before international dispute-settlement systems, demonstrates that human rights mechanisms for non-state actors are no longer wholly inconceivable on the international level. It would appear, though, that such a major structural change required action by states to create such mechanisms. One would expect that states could decide to establish human rights institutions competent to deal with violations by non-state actors by treaty law. Given the reluctance of human rights bodies to extend their jurisdiction even with regard to international organizations, it appears unlikely that existing institutions would be willing to do so with regard to other non-state actors. However, one should not underestimate the possibility of a progressive case-law that may at least provide fertile ground for enlarging the circle of human rights obligees. It is perfectly possible that human rights institutions may become more assertive in 238

Mixed arbitration is evidence that TNCs may have direct access to dispute settlement on rhe intcrnational level. Sec Pctcr Malanauk, Akehurst jModrrn Introduction to lnrernationa1Z.u~(1997) 10 I. 239 Convention on the Settlement of Disputes benueen States and Nationals of Other States, 18 March 1965, reprinted in 4 ILM (1965) 532. See Christoph C. Schrcuer, The ICSID Conuenrion: A Commentary (2001).

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the exercise of their jurisdiction. While at present one could hardly conceive of, for example, the UN Human Rights Committee entertaining a communication complaining of T N C or N G O b e h a v i o ~ r , ~there ~ ' are already indications in the current practice of adopting General Comments on provisions of the ICCPR and the ICESCR by the two Committees that they are willing to express their view on the human rights conformity of non-state behaviour. A pertinent example can be found in General Comment No. 8 on economic sanctions and respect for economic, social, and cultural rights241 of the UN Committee on Economic, Social, and Cultural Rights. In this Comment the Committee, on the one hand, carehlly stated that it did not in any way call into question the necessity for the imposition of sanctions in appropriate cases in accordance with Chapter VII of the U N Charter; on the other hand, it went on to assert that the Charter's human rights provisions 'must still be considered to be fully applicable in such cases'.242 Thus, it did-though only incidentally-pronounce on the human rights obligations of an international organization, the UN. In its General Comment No. 14 on the right to the highest attainable standard of health243 the CESCR also went beyond reaffirming an indirect human rights obligation on states to ensure that non-state actors do not violate human rights. It broadly asserted that '[wlhile only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society-individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well as the private business sectorhave responsibilities regarding the realization of the right to health'.244 Similarly, the U N Human Rights Commission has indicated its willingness to consider non-state human rights violations under the 1235 and 1503 procedures.245The examples of the ILO and OECD supervision mechanisms246may also be worth considering. Although both codes are also legally non-binding, they provide for standardized reporting obligations and for systematic periodic review by an independent body. This is suggested by U N Sub-Commission on the Promotion and Protection of Human Rights, Sessional working group on the working methods and activities of transnational corporations, Transnational Corporations and Other Business Enterprises, E/CN.4/Sub.2/2002/WG.2NPP.l/Add. 1 , 2 4 May 2002, 26, as the 'creation of additional reporting requirements by States' which would 'request States to include repons about the compliance of business enterprises' or even the power 'to receive [individd] commu~~ications regarding States that have failed to take effective action in response to businesses that have violated the respective treaties'. 14 1 U N Committee on Economic, Social, and Cultural Rights, General Comment No. 8: 'The relationship berween economic sanctions and respect for economic, social and cultural rights', 5 December 242 1997, EIC.121199718. Ibid., para. I. 14' UN Committee on Economic, Social, and Cultural Rights, General Comment No. 14: 'The right to the highest attainable standard of health', 11 August 2000, U.N. Doc. EIC.12/2000/4. 244 Ibid., para. 42. At least with regard to irregular armed groups and drug traffickers. See U.N. Doc. E/CN.4/1990/ 246 SR.54. See supra notes 90 and 91.

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On the EU level, the plans of the European Parliament go even further. It has recommended that a 'code of conduct for European ~ u l t i n a t i o n a l s ' ~should ~' comprise the establishment of a European Monitoring Platform. While no legislative action has been taken yet, the European Parliament decided to set up its own monitoring mechanism comprising public hearings with TNC representatives 'in order to discuss specific cases, of both good and bad conduct'.248 Another potential for a truly international human rights scrutiny of non-state actors may lie in the development of international criminal procedures. The example of the Nuremberg Tribunal already shows that it is not only individuals whose activities may be investigated, but also corporations. There was also some debate about including a provision enabling the new ICC to exercise criminal jurisdiction over legal persons.249 Although no such provision was eventually included in the Rome Statute, it demonstrates that there is potential for corporate criminal responsibility for human rights violations before international institutions. If even criminal responsibility under international law is no longer wholly excluded for non-state actors this demonstrates that there is a clear potential for direct human rights accountability under international mechanisms to be created if the necessary political will exists. Though the formation of such political will may be a formidable task, the important point is that it should be no longer possible to object to it on the basis of theoretical conceptions about the structure of international law. T o put it differently and more simply: as long as states do nor want non-state actors to be directly accountable for human rights violations, they will not become accountable. When states want them to become accountable, they can achieve this by establishing the required institutions and procedures.

C. Direct Human Rights Accountability Before National Courts We have seen that national courts play an increasingly important role in forcing non-state actors to respect human rights standards. Of course, one has to differentiate between the various types of non-state actors. Domestic courts generally lack jurisdiction over international organizations. Whether as a result of constituent treaties, headquarters agreements, or customary international law, courts in virtually all countries respect the functional-and as a matter of practice largely 247

EP Resolution supra note 50. Ibid., para. 20. Such hearings took place in October 2001 concerning European oil companies in Burma. See De Schutter, supra note 51. "' Cf. Arr 23 para. 5 Draft Statute of the International Criminal Court. AICONF.183/2/Add.l (1998). See Andrew Clapham, 'The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court', in Menno T . Kamminga and Saman Zia-Ziarifi (eds), Liability of Mtrlttnarronal Corporations U n d o International L'rw (2000) 139. See also Theodor Meron, 'Is International Law Moving Towards Criminalization?', 9 EJIL (1998) 18, at 19. 218

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absolute-immunity of international organizations.250There is no noticeable trend yet that, in the afiermath of the ~ i n o c h e tdecision^,^^' the jurisdictional immunity of international organizations would be narrowed by carving out a jus cogens or human rights exception, although that may be an option. Even where plaintiffs have asserted claims phrased as human rights violations national courts have not pierced the immunity shield of international organizations.252 The role of national courts uis-&is TNCs and NGOs is quite different. These non-state actors do not enjoy any privileged itanding. As legal persons constituted under the laws of a particular state, or in the case of TNCs and international NGOs frequently under the laws of a number of states, they are subject to the law and jurisdiction.of (all) these states. The 'only' jurisdictional problems that may arise are those stemming from the extraterricorialiry issue often involved.253In this context the open questions are mainly: whether national courts may lawfully (from an international law perspective) extend their jurisdiction over foreign non-state entities; whether they may hold non-state actors which are clearly subject to their jurisdiction liable for acts of other non-state actors, such as foreign subsidiaries or foreign parent companies; and whether (probably least controversially) they may extend their jurisdiction over their own non-state entities for activities abroad. Of course, this entails some very precarious issues and it will be difficult to find the right balance in each case. T o the critics of extraterritorial human rights litigation this legal tool sometimes amounts to 'legalized coercion' by putting pressure upon domestic subsidiaries (or parents) of TNCs. By this type of litigation, foreign parents may be compelled to act or refrain from acting in a particular way. Similarly pressure may lie upon domestic parent companies in order to force foreign subsidiaries to behave in a certain way. The currently booming transnational tort litigation in the US and elsewhere displays remarkable parallels to the 'vicarious liability' concept pursued before 250 See August Reinisch, International Organizations BrfDre National Courts (2000). See also Karel Wellens, Remedz'rr against Intcmational Organivltionr (2002). 251 See Andrea Bianchi, 'Immunity Versus Human Rights: The Pinochet Case', 10 EJIL (1999) 237; Jiirgen Brohmer, 'Diplomatic Immunity, Head of State Immunity, State Immunity Misconccptions of a Notorious Human Rights Violator, Case Note concerning the Decision of the House of Lords, 9 December 1998', 12 Leiah Journal of International Law (1999) 361; Cunis A. Bradley and Jack L. Goldsmith, 'Pinochet and International Human Rights Litigation', 97 Michigan Law h i n u (1999) 2129; Ruth Wedgwood, 'International Criminal Law and Augusto Pinochet', 40 Mrginia Journal of International Law (2000) 829. 252 In Abdi Horh Askir v. Boutros Boutror-Ghali, Joseph E Connor, et al.. 933 FSupp. 368 (S.D.N.Y. 1996) plaintiff vied to recover damages for unauthorized and unlawful possession of his property in Somalia, making a quasi-expropriation claim, and thereby implicitly challenged the legality of the UN's peace-keeping activities. The court, however, dismissed the case for lack of jurisdiction because the defendant organization enjoyed immunity from suit. See Reinisch, rupra note 250, at 200 and 206. See also Michael Singer, 'Jurisdictional Immunities of International Organizations: Human Rights and Functional Necessity Concerns', 36 Virginia journal of Internarional Law (1995) 53. '5' See rupra text starting at note 93.


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various human rights bodies.254But these national court decisions may also provide a fertile ground for the growing acceptance of direct human rights obligations on non-state actors.255 Finally, and here the discussion of extraterritoriality in pursuit of human rights completes che c k l e to the re-emergence of codes o l conduct for the same purpose, this type of direct accountability before national courts appears to be the most efficient legal tool in securing human rights vis-a-vis corporate activities. The reason for this success can probably be found in the fact that the specific characteristics of human rights litigation in common law countries have effectively incorporated the economic arguments in favour of human rights compliance into legal ones. With the cost of the negative publicity surrounding such high-profile cases, and the threat of punitive damages at the end of an already very damaging process, TNCs have realized that respecting human rights makes good business sense. When courts no longer accept the TNC argument that human rights are 'none of their business', this will become costly. It is thus not surprising that prudent corporations make provisions for this eventuality by adopting their own codes of conduct in order to forestall any cases of potential liability. With all the problems of supervision and enforcement surrounding purely voluntary codes, the ultimate threat of costly legal liability remains a valuable counterpart to them. See supra text starting at note 209. Cf. h d i c V . Karadzic, 70 F.3d 232,239 (2d Cir. 1995): 'We do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by chose acting under the auspices of a state or only as private individuals.' 254 255

PUNISHMENT O F NON-STATE ACTORS IN NON-INTERNATIONAL ARMED CONFLICT William A. Schabafl INTRODUCTION Over the last half a century, international law has become increasingly involved in the regulation of non-international armed conflict or, as it is known more colloquially, civil war. In its landmark ruling o n jurisdiction in the Tadic case, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia ( " I C T ) dated the origins of this phenomenon to the Spanish Civil War: As early as the Spanish Civil War (193&39), State practice revealed a tendency to disregard the distinction between international and internal wars and to apply certain general principles of humanitarian law, at least to those internal conflicts that constituted large-scale civil wars. The Spanish Civil War had elements of both an internal and an international armed conflict. Significantly, both the republican Government and third States refused to recognize the insurgents as belligerents. They nonetheless insisted that certain rules concerning international armed conflict applied. Among rules deemed applicable were the prohibition of the intentional bombing of civilians, the rule forbidding attacks on non-military objectives, and the rule regarding required precautions when attacking military objectives.' T h e Appeals Chamber went on to review the evolution of State practice with respect to the application of international law during internal conflicts - situations like the Chinese Civil War of the late 1940s. T h e judgment notes that such developments culminated in recognition by the International Court of Justice ("ICJ"), in the 1985 Nicaragua case, that certain minimum humanitarian standards apply during internal armed conflict.'

* Professor of Human Rights Law, National University of Ireland, Galway and Director, Irish Centre for Human Rights. I . See Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, at para. 100 (Oct. 2, 1995). reprinted in 35 1.L.M. 32 (1995). 2. See id, at paras. 101-02.

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Nevertheless, as is the case in the related field of international human rights law, the traditional view is that these norms constitute obligations imposed upon States, not individuals. It is true that Article 29(1) of the Universal Declaration of Human Rights ("UDHR") says that "[e]veryone has duties to the community,"' and the African Charter of Human and Peoples' Rights gives some particular attention to the ~ u b j e c t .As ~ a general rule, however, international human rights law addresses the question of individual responsibility only in an indirect manner, holding that States are bound to ensure respect for human rights by, for example, enacting and enforcing criminal law." This duty is usually only implicit in the human rights instruments, with some notable exceptions: Convention on the Prevention and Punishment of the Crime of Genocide,' the International Convention on the Elimination of All Forms of Racial Di~crimination,~ the 3. SeeUniversal Declaration of Human Rights, G.A. Res. 217A (Ill), U.N. Doc. A/ 810 (1948). Article 29(1) reads: "Evetyotie has duties to the community in which alone the free and FbII development of his personality is possible." Id. See nOo American Declaration vn the Rights and Duties o r Man, 1992, arts. XXIX-XXXVII, OAS Doc. OEA/ Ser.L/V/II.2.1, Doc. 21, rev. 6 (1992). 4. See African Charter o n Human and Peoples' Rights, 1981, arts. 27-29, OAU Doc. CAB/LEG/67/3 Rev. 5 ( I981 ). 5. SeeVelasquez Rodriguez v. Honduras, 4 Inter-Am. C.H.R. (Ser. C) (1988); Bautista c k Arellana v. Colombia C o n ~ n ~ u n i c a t i onno , 563/1993, at paras. 8.5, 10, U.N. Doc. CCPR/C/55/D/563/ I993 (1998); Streleu, Kessler a n d Krenz v. Germany, (34044/96, 35.532/9, 44801/98) Eur. Ct. of H.R., 2001, at para. 86. See nlso Question of the Impunity of Perpetrators o f H u m ; ~ nRights Violations (Civil and Political), C.H.R. Kes. 1998/ 53, ESCOR Supp. (No.3) a t 175, U.N. Doc. E/CN.4/1998/53, at para. 27 (1998). !. Convention o n the Prevention a n d I'unishment of the Crime of Genocide, 6. & Jan. 12, 1951, art. V, 78 U.N.T.S. 277 [hereinafter Genocide Convention]. Article V reads: The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necess;ny legislation to give effect LO the provisions of the present Convention, and, in par~icular,to provide efl'ective penalties tbr persons guilty of genocide o r any of the other acts enutnet-ated in article 111. Id. 7. See International Convention o n the Elimini~~ion of All Forms of Racial Iliscrimination, Jan. 4, 1969, art.4, 660 U.N.T.S. 195. Article 4 reads: States Parties condemn all propaganda and all organizations which are based on ideas o r theories of superiority of onc race crr group of persons of o n e colour o r ethnic origin, or which attempt to,justify or promote racial hatred and cliscrimination in any form, and undertake t o adopt immediate a n d positive measures designed to eradicate all incitement to, o r acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter &: (a) Shall declare an offence punishable by law all dissemination of ideas b a e d


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909

International Convention on the Suppression and Punishment of the Crime of A ~ a r t h e i dand , ~ the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-

r n e r ~ t ,The ~ duty to prosecute is also set out explicitly in international humanitarian law instruments. Accordingly, Article 146 of the Geneva Convention on the Protection of Civilians requires States parties "to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention.""' o n racial superiority o r hatred, incitement to racial discrimination, as well as all acts of violence o r incitement to such acts against any race or group of persons of another colour o r ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and i n c ~ t eracial discrimination, and shall recognize participation in such organizations o r activities as an offence punishable by law; (c) Shall not permit public authorities o r public institutions, national o r local, to promote or incite racial discrimination.

Id 8. See International Convention on the Suppression and Punishment of the Crime of Apartheid, Jul. 18, 1976, art. IV, 1015 U.N.T.S. 244 [hereinafter Apartheid Convention]. Article TV reads: The States Parties to the present Convention undertake: (a) T o adopt any legislative o r other measures necessary to suppress as well as to prevent any encouragement of the crime of apartheid and similar segregationist policies o r their manifestations and to punish persons guilty of that crime; (b) T o adopt legislative, judicial and administrative measures to prosecute, hring to trial and punish in accordance with theirjurisdiction pelsons responsible-for, or accused of, the acts defined in article I1 of the present ~ o & e n tion, whether o r not such persons reside in the territory of the State in which the acts are committed o r are nationals of that State o r of some other State o r are stateless persons. Id. 9. SCCConvention against Torture and Other Cruel, Inhunlan o r Degrading Treatment o r Punishment,June 26, 1987, art. 4, 1486 U.N.T.S. 85 [hereinafter Convention against Torture]. Article 4 reads: 1. Each State Party shall ensure that all acts of torture are offences under its criminal law. T h e same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity o r participation in torture. 2. Each State P a r q shall make these offences punishable by appropriate penalties which take into account their grave nature.

Id. 10. See Ceneva Convention Relative to the Protection of Civilian Persons in Time of War, Oct. 21, 1950, 75 U.N.T.S. 287. See a h Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Oct. 21, 1950, art. 49, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition

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I. PROSECUI'ION OF "IN'I'ERNATIONAL CRIMES" By and large, the obligation to investigate and prosecute concerns crimes committed within the jurisdiction of a State, that is, its territory, and as a general rule, is limited to serious crimes of violence against the person. Arguably, many of the norms that impose a duty to investigate and prosecute serious violent crimes against the person, are not only binding upon those States that have signed, ratified, or acceded to the relevant treaties, but are also obligations imposed by customary international law. These obligations are enhanced with respect to a somewhat narrower category of offenses that are sometimes described as "international crimes." The Rome Statute of the International Criminal Court ("Rome Statute") declares: "Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes . . ."" The concept of "international crimes" is not clarified further in the Rome Stanitel%r, for that matter, in any of the other relevant treaties. Rather, it is a customary international law concept, and it implies not only a duty upon a State to prosecute those crimes that take place on the territory of that State, but crimes outside the State as well. The Rome Statute gives the International Criminal Court ("ICC" or "Court") jurisdiction to prosecute three "international crimes", namely, genocide, crimes against humanity, and war crimes.':' In the recent Arrest Wurrant case, the ICJ referred to "crimes against humanity and war crimes" rather than to international crimes,I4 probably because there may be other "international crimes" that lack the same level of importance and do not strike at the core of fundamental human rights. The exclusionary clauses in the 1951 Conof the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Oct. 2 1 , 1950, art. 50, 75 U.N.T.S. 85; Geneva Convention Kelative t o the Treatment of Prisoners of' M'ar (IV), Oct. 12, 1950, art. 129, 75 U.N.T.S. 135. I I. See Rome Statute of the International Criminal Coi~rt, U.N. DOC. A/ CONF. 185/9. Pmhl. ( 1998) [herein;~fterRotne Statute]. 12. See id. art. I . I.?. See id. art. 5(1). See genc?rrrl/yM'II.I.IAM SCI-IAHAS, IN.I~RODUCI~ION.ro THE ROME S-ri\.r~~m (2001) (noting that while Article 5(1) contemplates possibility of prosecu~ion for aggression, the crime iuelfis leli undefined, and the conditions for prosecution are not specified). At present, and for the foreseeable future, the ICC is not capable of prosecuting the crime of aggression. 14. Seecase Concerning the Arrest Warrant of 1 I April 2000 (Congo v. Belg.) 2002 I.C.,J. 121.


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vention Relating to the Status of Refugees ("Refugee Convention") seem to make a similar distinction, recognizing a category involving "a crime against peace, a war crime, or a crime against humanity," and another, almost certainly broader, category of "acts contrary to the purposes and principles of the United Nations." 1.5 Drug trafficking, for example, may be an "international crime" and "contrary to the purposes and principles of the United Nations," but it is almost certainly neither a crime against humanity nor a war crime, nor can it be said to rise to the same level of gravity." In other words, when the Rome Statute refers to a duty to exercise criminal jurisdiction over those responsible for international crimes, it is surely referring to crimes against humanity and war crimes, but probably not to drug trafficking. For the purposes of this discussion, the term "international crime" will be used in this narrow sense, and on the understanding that it overlaps more or less precisely with the category of crimes considered by the ICJ in the Arrest Warrant case, and that set out in article I(F) (a) of the Refugee Convention.'' Crimes falling within this category also include genocide and apartheid, both of which are often said to be merely specific categories of the broader concept of "crimes against humanity."Ix 15. See Convention Relating to the Status of Refugees, Apr. 22, 1954, 189 U.N.T.S. 137 [hereinafter Refugee Convention]. 16. See Pushpanathan v. Canada, [I9981 1 S.C.R. 982, at paras. 59-60. 17. See Refugee Convention, supra 11.15, art. 1(F) (a) 18. There is much authority for the view that genocide is also a crime against humanity. See p e r n l l y Apartheid Convention, supra n.8 (recognizing that apartheid is a crime against humanity). See also Convention on the Nonapplicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Nov. 26, 1970, art. 1, 754 U.N.T.S. 73. See also European Convention on the No~i-Applicabilityof Statutory Limitation to Crimes Against Humanity and War Crimes of Jan. 25, 1974, art.1 (1), Eur.T.S. No.82; Second Report on the Draft Code of Offences Against he Peace and Security of Mankind, [1984] 2 Y.B. ON H.R. 93, at paras. 2829; Report of the International Law Commission on the Work of its Forty-Eighth Session, C.N. GAOR 5lst Sess., Supp No.10, at G l f i e ~ DROI-I , INTERNATIONAL PENAL CONVEN86, U.N. Doc. A/51 / I 0 (1996); STEFAN TIONNEL 109 (1970; Yoram Dinstein, Crime~fAgainst Humanity, in THEORY OF INTERNATIONAL LAWAT THE THRESHOLD OF THE 21s-r CENTURY 905 (Jerzy Makarczyk ed., 1997); Theodor Meron, International Criminalisation of Internal Atrocities, 89 AM.J . INT'LL. 554, 557 (1995); Tadic, Case No. 1T-941-AR72, at para. 140; Prosecutor v. Tadic, Case No. IT-941-T, Opinion and Judgment, paras. 622, 655 (May .7, 1997) [hereinafter Tadic Opinion and Judgment 19971; Prosecutor v. Tadic, Case No. IT-941-A, Judgment, at para. 251 Uul. 15, 1999) [hereinafter Tadic Judgment 19991. Seegenerally Report on the Situation of Human Rights in Rwanda submitted by Mr. Rene Degni-Segui, Special R a p porteur, under paragraph 20 of resolution S3/1 of 25 May 1994, U.N. Doc. E/CN.4/

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Recognition of a "duty to exercise criminal jurisdiction" in thc case of international crimes raises a number of important questions. At a minimum, it clearly means the obligation to prosecute crimes committed on a State's territory. But, as has already been noted, this duty exists, in any event, under various human rights treaties as well as under customary law with respect to a broad range of crimes against the person, many of which d o not rise to the seriousness of "international crimes". The duty of States resulting from international human right. law to prosecute crimes committed on their territory corresponds to another general principle of public international law by which States exercise criminal law jurisdiction over their own territory and nationals.'" Louis Joinet has pointed out that "[oln principle, it should remain the rule that national courts have jurisdiction, because any lasting solution must come from the [Nlation it~elf."~" However, "all too often national courts are not yet capable of handing down impartial justice or are physically unable to funct i o n ~.2 1 Frequently, too, they are resistant to this responsibility, usually because the authorities involved in prosecution are complicit with the perpetrators themselves. Even if it is not necessarily an element of the offence, the crimes in question - genocide, apartheid, torture, and so on - almost invariably imply State policy and involvement or, at the very least, tolerance. Definition of an act as an "international crime," as opposed to simply an "ordinary" crime against the person, has a number of consequences, whose objective is to facilitate prevention and punishment of the act. In the case of international crimes, there may be a duty upon States to ensure prosecution of offences committed elsewhere, should they obtain custody of a suspected offender. States guarantee that these crimes are adjudicated either by trying the accused person themselves, or by extraditing him or her to another State that is prepared to do so. This is 1996/7. at para. 7 (1994); Report of the Committee o n the Elimination of Racial Discrimination, U.N. Doc. A/.52/18, at para. 159 (1997). 19. See S.S.IA>~LIS(Fr.v. Turk.), 1927 P.C.I.J. (Ser.A)No.10, at 70 (Sept. 7 ) . 20. See Commission on Human Rights, Questions on lrnpunity oJP@etrators of Human Rights Violations (Civil and Polzlical), at para. 28, avail&& at http://www2.hri.ca/fortherecorci1997/doc11menta~ior1/subco1111r1ission/e-c-sb2-1997-20.htm. 21 . see id.


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often known by the Latin expression aut dedme aut judicare (literally, "extradite or prosecute"). The principle is designed to ensure that perpetrators of particularly serious crimes are brought to justice. This obligation is set out in Article 5 ( 2 ) of the Convention Against Torturez2and in the "grave breaches" provisions of the Geneva convention^.^:' However, there is nothing similar in the Genocide Convention or the Apartheid Convention. Some writers have argued that aut dedere aut judicare for international crimes is also a customary norm.'L4 In the case of international crimes, it is also said that States must recognize that crimes committed within their own jurisdictions - that is, on their sovereign territories - may be prosecuted by other States on a basis known as "universal jurisdiction" .25 This is obviously implicit in the obligation aut dedere aut

judicare. Unlike aut dedere nut judicare, universal jurisdiction is rarely set out in international treaties. In the case of the Genocide Convention, for example, the drafters quite intentionally decided to exclude universal jurisdiction, and to specify that genocide should be prosecuted by the State upon whose territory the crime was committed or, alternatively, by an international c o ~ r t . ~In " 1948, at the time the Genocide Convention was drafted, States were very nervous that another State might purport to have the authority to prosecute such serious violations of human rights as genocide, committed upon their own territory. This was at the beginning of the Cold War, and they feared political mischief in various forms. Recently, in individual opinions issued as part of the judgment in the Arrest Warrant case of February 14, 2002, several judges of the ICC recognized that the exercise of universal jurisdiction in the case of international crimes (i.e., crimes against humanity and war crimes) was consistent with customary interna22. See Convention against Torture, supra n.9, art. 5 ( 2 ) . 23. See Fourth Geneva Convention, .wpm n.10, art. 49. 24. M.CHERIF BASSIOUNI & EDWAKD M . WISE,AUT DEDERE Au~.J U D I ~ RT E H E, DUTY TO EXTRADITE OR PROSECUTE I N IFSTEKNA.~.IONAI. LAW3-5 (1995) (on file with author). 25. See Colleen Enache-Brown & Ari Fried, Universal Crime, Jurisdiction und Duty: The Obligation of Aut Dedere Aut Judicare i n Inlernalionnl Law, 43 MCCILLL.J. 613, 621 (1998) (defining universal jurisdiction as principle that assumes that every State has interest in exercising j~irisdiction to combat egregious offenses that States universally condemn). A. SC:HABAS, CENO26. SeeCenocide Convention, su@a n.6, art. VI. See ~~LOM'ILLIAM CIDE I N INTERNATIONAI. IAW 46 (2000).

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tional law.27 However, since several judges disagreed, it cannot be said that the question is entirely re~olved.'~In December 2002, an application was filed before the ICC that requires it to address the matter and, perhaps, resolve it definitively.'' The law has developed considerably over the past decade o r so with respect to whether or not acts committed during noninternational armed conflict are punishable as "international crimes". Two specific questions need to be considered: the meaning of the term "non-international armed" conflict, and the acts punishable as international crimes when they are committed during non-international armed conflict. A. Non-International Armed ConJlict and the Other Categories The distinction between international and non-international armed conflict exists because States have historically been more willing to accept obligations about the conduct of war and the treatment of victims, especially non-combatants, when the conflict is international in nature. International humanitarian law was originally concerned with reciprocal commitments between sovereign States.'" At the time of the Spanish Civil War in the late 1930s, it did not really admit any particular role for international law in the case of internal conflict." Since that time, international humanitarian law has developed more or less in parallel with the related field of international human rights law, which, from its very beginning, has addressed individuals rights vis-a-vis the States that have jurisdiction over them, rather than 27. See Case Concerning Arrest Warrant of 11 April 2000 (D.R.C. v. Belg.), 2002 I.C.J. 121, at para. 59 (Feb. 15) [hereinafter Arrest Warrant C h e ] (joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal; Dissenting Opinion ofJudge Van Den Wyngaert). 28. See id. Separate Opinion of President Gilbert Guillaume: Individual Opinion of Francisco Kezek; and Declaration of Raymond Ranjeva. 29. See Press Release, lnternational Court of Justice, The Republic of the Congo seises the lnternalional Court of Justice ("ICJ") of a dispute with France (Dec, 9, 2002), avuik~blea1 http://www.nieuwsbank.nl.en/2002/12/11 /r004.htm (stating that proceedings in the case are conditional upon France consenting to jurisdiction of the Court, pursuant to Article 36 of Statute of the International Court ofJustice). See also Statute of the International Court ofJustice. 1978 I.CJ. Acts & Docs. 5, avuikuhk at http://www. icjcij.org/icjwww/ibasicdocuments/Base~,htm. 30. See HENRY J. STEINER & PHILIP ALSTON,INTERNATIONAL HU,MANRIGHTSIN CONTEXT 56 (2d ed. 2000) (identifying inherently international character of humanitarian law of war). 31. This is not to say that rules of humanitarian law did not apply to non-international armed conflict. See Tadic, Caqe No. IT-941-AK72 at para. 33.

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in the context of reciprocity that prevails generally in public international law.'' From the standpoint of positive law, the starting point is common Article 3 to the 1949 Geneva Conventions, a provision that constitutes a kind of summary codification of norms applica-

ble in what is described as "armed conflict not of an international character.""" The minimum standards applicable in such conflicts were further developed and supplemented in Additional Protocol I1 to the Geneva Conventions ("Additional Protocol"), adopted in 1977.:'4 Unlike common Article 3, the Additional Protocol attempts to define the concept of "non-international armed conflict," applying it to armed conflicts that take place between a State's armed forces and dissident armed forces or other organized armed groups, "which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol."" I t adds: "This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts."'" The Rome Statute, adopted on July 17, 1998, defines non-international armed conflicts slightly differently, as "armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups."" The definition of non-international armed conflict is intricately bound up with the existence of organized non-State armed groups. These are the "non-State actors" in the title of this Article. Common Article 3 of the Geneva Conventions, at least explicitly, imposes no such requirement, but the other two instruments insist, for their application, upon the presence of "non-State actors" with a certain level of organizational capacity. 32. See Si-LINER & ALSTON,supra 11.30, at 57 (identifying interconnectedness of human rights law and international law). 33. SeeGeneva Convention relative to the Protection uf Civilian Persons in Time of War, sup0 n.10, art. 3. 34. See Protocol Additional to the 1949 Geneva Conventions and Relating to The Protection of Victims of Non-international Armed Conflicts (Protocol I I ) , atered into force Dec. 7, 1978, 1125 U.N.T.S. 609 [hereinafter AP I l l . 35. See id. art.1. 36. See id. art. 2. 37. See Rome Statute, sujm n.1 I , art. 8 ( Z )(0.

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The requirements in the Additional Protocol are somewhat higher than those of the Rome Statute, in that in the former case, the non-State actor must actually control territory. It must be "State-like," even if it lacks all of a sovereign State's attributes, and does not enjoy recognition by other States, or membership in international ~rganizations.~"t the low end of non-international armcd conflict, the definition hinges upon the intensity of the conflict, rather than upon the level of organization or territorial control of its non-State participants. There is a common denominator of humane conduct applicable to both international and non-international armed conflicts, as well as to circumstances that d o not even rise to the threshold of non-international armed conflict - the "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature" referred to in Article 1 of the Additional Protoc01.'~ Such norms would include the prohibition of summary executions and torture, and they are as much a part of international humanitarian law, as they are of the international human rights law. They are the nonderogable norms of the major human rights treaties4" They are also norms of customary international law,4Land are sometimes described as peremptory or jus cogens norms.42

B. Individual Responsibility i n Nun-International Armed Conflict What, then, is the significance of the distinction between international and non-international armed conflict, and between non-international armed conflict and riots or sporadic acts of violence, as it concerns the kind of atrocity that is prohibited under all three legal regimes? Probably the most important 38. See AP 11, supra n.34, art. 1. 39. See id. art. l ( 2 ) . 40. See International Covenant on Civil and Political Righe, 1976, art. 4(2), 999 U.N.T.S. 171 [hereinafter ICCPR]. See also Convention ror the Protection of Human Rights and Fundamental Freedoms, 1955, art. 15(1), 213 U.N.T.S. 221 [hereinafter European Convention on Human Rights]; American Convention on Human Rights, 1979, art. 27, 1144 U.N.T.S. 123. 41. Set ICCPR, sujwa 11.40. See alto General Comment No. 24, Issues relating to reservations made upon ratification or accession to the Convenant or the Optional Protocols thereto, or in relation to declarations under this article 41 of the Covenant, Human Rights Committee, U.N. Doc. CCPR/C/21/Rev.l/Add.6, at para. 8 (1964). 42. See ICCPK, supra n.40. See also General Comnlent No. 29, States of emergency (Article 4 ) , U . N . Doc. CCPR/C/21/Rrv.l/Add.ll, at para. 1 1 (2001).


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issue, at least historically, has concerned the punishment of such acts as "international crimes." The rapid growth and expansion of international criminal law in the past decade or so, of which the centerpieces are the ICC together with the Rome Statute, may tend to obscure the relatively underdeveloped status of this body of law for most of the second half of the twentieth century. That certain violations of international humanitarian iaw might incur individual criminal liability was first established at Nuremberg, in 1946.43 These "violations of the laws and customs of war" reflected prohibitions in the 1907 Convention (IV) Respecting the Laws and Customs of War By Land ("Hague Con~ e n t i o n " )but , ~ ~were also considered to form part of customary international law. Because the entire concept of legal regulation of non-international armed conflict was in its infancy, it was not considered that there could be international criminal liability for violations of humanitarian law in non-international armed conflict. In 1949, when the Geneva Conventions were adopted, certain rules concerning international criminal liability were codified. This is the "grave breach" regime, as it is known in the Conventions, and as has already been mentioned, it establishes obligations upon States to prosecute or extradite (aut dedere aut judicare) in the case of certain particularly serious violations. Because it was generally believed that common Article 3 was the only provision in those instruments that governed non-international armed conflict, the prevailing view was that the grave breach system simply did not apply in such cases.4" In other words, there were no "international crimes" in non-international armed conflicts. Proposals to extend the grave breach system to 43. See generally Judicid Decisions: Inlcrtrulionnl 7'ribz~nnl(Ntcrmberg), Judgment and Sentences, Ocl. 1, 1946, 41 AM.J. IW'L L. 172 (1947) [hereinafter Judicial L)ecisions]. 44. See Convention (IV) Respecting the Laws and Customs of War by Land, Oct. 18, 1907 [I9101 U.ICT.S. 9, Annex. 45. But see Tudic, Case No. IT-94-1AR72 Separate Opinion of Judge Ahi-Saab on the Defense Motion for Interlocutory Appeal on Jurisdiction, at para. 100 (Oct. 2. 1995) (stating that customary international law had extended application of grave breaches system to non-international armed conflict). See also Prosecutor v. Delalic, Case No. IT-9621-T,Judgrnent, at para. 202 (Nov. 16, 1998). Seegenerally Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2-PT, Decision on Joint Defence Motion to Dismiss the Amended Indictment for Lack ofJuristliction based on the Li~nitedJurisdictional Reach of Articles 2 and 3 (Mar. 2, 1999); Prosecutor v. Aleksovksi, Case No. IT-94-14/1T, Opinion dissidente du juge Rodrigues, President de la chambre de premiere instance, at paras. 44-49 (Jun 25, 1999).

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non-international armed conflict were rejected by those who negotiated the Additional Protocol. This did not mean that non-State actors, and the individuals composing them, escaped punishment. Usually, States contended that rebel groups are mere "outlaws" or "bandits," and as such, their conduct is governed by ordinary criminal law. Many countries in the throes of civil disturbance or conflict have their jails packed with criminals claiming to be "political prisoners." Typically, nonState actors would escape individual criminal responsibility when they were victorious, or when they were able to obtain amnesty in return for a peace agreement. In both situations, the result has been impunity. There is a long tradition of this, and still no shortage of contemporary examples, such as the Belfast Agreement of 19984'iand the Peace Agreement between the government of Sierra Leone and the Revolutionary United Front ("RUF")of Sierra Leone of 1999 ("Lorn6 Peace Agreement"),47that brought an end to the conflict in Sierra Leone. The recognition that acts committed by non-State actors - as well as, of course, by the States themselves and those acting on their behalf - during non-international armed conflict constitute international crimes has, despite amnesty in a peace agreement or some form of inability or unwillingness to prosecute, subjected such acts to prosecution by the courts of other States. This has been done under the principle of universal jurisdiction or the jurisdiction of an international criminal court. But well into the 1990s, it was widely believed that there was simply no individual criminal liability - as a matter of international law - during non-international armed conflict. When the matter was litigated before the Appeals Chamber of the ICTY, in 1995, most specialists supported this view. Judge Haopei Li referred to a number of authorities on this, including Professor Theodor M e r ~ n , ~the ' Commission of Experts appointed by the Security Council (the "Bassiouni Commission") ,4Y and the Inter46. See Agreement Reached in Multi-Party Negotiations, Apr. 10, 1998, 1r.-UK, rrvccilrcble nt h t t p : / / w w w . n i o . g o v . u k / i s s u e s / a g r e e l i n k s g n . 47. See Peace Agreement between the Government of Sierra Leone and the Revonl http://www.sierralutionary United Front of Sierra Leone Uul. 7, 1999), a~~ailabb leone.org/lomeaccord.html. 48. See Theodor Meron, War Cn'mes in Yugoslauio ccnd the Developmen1 oJ/nlmmlion.al L(~n~, 88 AM.J . INT'L L. 78, 80 ( 1994). 49. SeeFinal Report of 27 May 1994 of the Commission of Experu established Pursuant to Security Council Kesolution 780, at 13, U . N . Doc. S/1994/674 (1992).

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national Committee of the Red Cross ("ICRC").50 The landmark ruling of the Appeals Chamber established that violations of the laws or customs of war could be committed in non-international, ' approach of the as well as international, armed ~ o n f l i c t . ~The Appeals Chamber was subsequently confirmed in the Rome Statute, which establishes subject-matter jurisdiction of the ICC over war crimes committed in non-international, as well as international armed conflicts." Nevertheless, the lists of punishable acts are somewhat different depending upon the nature of the conflict, so it cannot be said that the distinction has lost all legal significance. The fact that atrocities committed by non-State actors during non-international armed conflict are also punishable as offenses falling under the general rubric of crimes against humanity should not be lost sight of. But until recently, the question of whether or not crimes against humanity were punishable if committed during non-international armed conflict or in peacetime, was also subject to contention. The original definition of "crimes against humanity," established at the London Conference for the purposes of the Nuremberg Trials of the major war criminals, confined the concept to acts committed in association with international armed conflict. The Nuremberg Tribunal refused to convict the Nazis for acts committed prior to the outbreak of the Second World War, in September 193gm5' Since Nuremberg, certain types of crimes against humanity were recognized, by international treaty, as being international crimes even when committed in peacetime and therefore, a fmtion', during non-international armed conflict. The first of them was genocide, defined as the "intentional destruction of a national, racial, ethnic or religious group." Article 1 of the 1948 Genocide Convention specifies that it is a crime under international law "whether committed in time of peace or in time of war"..54 Although not spelled out, it is clearly understood that 50. See Tadic, Case No. IT-94-1-AR72, Separate Opinion of Judge Li on the Defence Motion for Interlocutory Appeal on Jurisdiction, at para. 9 (Oct. 2. 1995). 51. See Tadic, Case No. IT-94-1-AR72, at paras. 12836. 52. See Rome Statute, supra n.11, art. 8. 53. See Judicial Ilecisions, supra n.35. 54. See Genocide Convention, supra n.6, art. 1 . Article 1 reads: The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

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the Apartheid Convention and the Torture Convention both have a similar scope. Thus, as a matter of treaty law, applicable to States that have bound themselves to the relevant instruments, it has been possible to punish certain types of crime against humanity - genocide, apartheid, torture - even when committed in peacetime or during non-international armed conflict. Many would argue that these norms form part of customary international law as well, and therefore, apply even to States that have not ratified or acceded to the relevant treaties. But in any event, until quite recently, persons charged with most of the acts punishable as crimes against humanity, could continue to refer to the Nuremberg precedents and argue that such offences were only punishable when committed during international armed conflict. T o that extent, they were more or less similar in scope to war crimes. Here, too, a decisive change in the law was operated by the Tadic Jurisdiction Decision of the Appeals Chamber of the ICTY. It held that "[ilt is by now a settled rule of customary international law that crimes against humanity d o not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all."5" Like the conclusion that war crimes could be committed in non-international armed conflict, this finding was also endorsed in the Rome S t a t ~ t e . ~ " Ill.

5.5. See 'liulic, Case No. IT-941-AK72, a t para. 141. 56. See Rome Statute, supra n. l I, art. 7(1 ). Article 7( 1 ) reads: For the purpose of this Statute, "crime against humanity" means any of the following acts when cornmii~edas part of a widespread o r systematic attack directed against any civilian population, with knowledge of' the attack: Murder; Extermination; Enslavement; Deportation o r forcible transfer of population; Imprisonment o r other severe deprivation of physical liberty in violation of fi~ndamentalrules of international law; Torture; Kape, sexual slavery, enfrmecl prostitution, forced pregnancy, enforced sterilization, o r any other frmm of sexual violence ot'comparable gravity; Persecution against any identilihle group o r collectivity o n political, rdcial, national, ethnic, citltural, religiotts, gender as defined in paragraph 3, o r other grounds that are universally recognized as impennissible under interr~ationallaw, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

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T h e recent non-international armed conflict in Sierra Leone provides a n excellent example of the importance of recognizing that acts committed in non-international armed conflict by non-State actors are punishable as "international crimes." Article IX of the Lome Peace Agreement between the RUF and the government of Sierra Leone, granted a full amnesty and pardon to the participants in the conflict that had raged from March of 1991. Moreover: [t]o consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official orjudicial action is taken against any member of the RUF, ex-AFRC [Armed Forces Revolutionary Council], ex-SLA [Sierra Leone Army] or CDF [Civil Defence Forces], in respect of anything done by them in pursuit of their objectives as members of those organizations since March 1991 up to the time of the signing of the present Agreement. In addition, legdative and other measures necessary to guarantee immunity to former combatants, exiles and other persons, currently outside the country for reasons related to the armed conflict shall be adopted, ensuring the full exercise of their civil and political rights, with a view to their reintegration within a framework of full legality." Although a "moral guarantor" of the agreement, the United Nations ("U.N.") attached a note to the document declaring that it could not recognize amnesty for serious international crimes, although it had made n o similar objection in 1996 when an earlier peace agreement had been n e g ~ t i a t e d . ' ~In January 2002, a n international body, the Special Court for Sierra Leone, was established by the U.N. a n d the government of Sierra Leone to prosecute certain international crimes committed during the armed conflict." Article 10 of its Statute declares: "An amnesty Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

(i)

Id. 57. See Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, art 1X Uul. 7, 1999). See gmerally Karen Gallagher, No Justice, No Peace: The Ixgalities and Realities of Amn~slyin S i m a Leone, 23 T . JEFFERSON L. REV.149 (2000). 58. See Peace Agreement between the Government of the Republic of Sierra I.eone and the Revolutionary United Front ot Sierra Leone, art. 14 (Nov. 30, 1996). 59. See Agreement between the United Nations and the Government of Sierra Le-

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granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution.""" Moreover, the amnesty in the Lom6 Agreement is also no obstacle to prosecution by courts of other States acting pursuant to universal jurisdiction. It is now beyond any doubt that war crimes and crimes against humanity are punishable as crimes of international law when committed in non-international armed conflict. Non-State actors, who may be members of guerrilla movements, armed bands, and even provisional governments, are subject to prosecution on this basis. Where, for whatever reason, trials are not possible or desirable before the courts of the territory where the crimes have taken place, justice systems of other States may assume their responsibilities and prosecute on the basis of universal jurisdiction. Amnesty or some other measure of impunity a p plicable in the State where the crime has taken place, is no obstacle or bar to trial elsewhere. These developments in the law most of them quite recent - mean that perpetrators of serious violations of human rights during non-international armed conflicts, including non-State actors, are far less likely to escape justice than they were in the past. 111. DEFINING THE CRIMES: THE CASE OF SEPTEMBER 11, 2001

The principles concerning the punishment of non-State actors for offenses committed during non-international armed conflict, apply to the extent that the acts committed fall within the definitions of "crimes against humanity" and "war crimes." This is an area where there is much room for debate. Both cateone on the Establishment of a Special Court for Sierra Leone, U.N. Doc. S/2002/246 (Jan. 16, 2002). 60. Id. art. 10. SM a k o S. Beresford & AS. Muller, 7%e Special Court f i S i m i Leone: INT'L L.1. 635, 639 (2001 ) . See p l e r a l ~Micaela Frulli, 7 1 ~ : An Initin1 Commmzl, 14 LEIDEN Sl~ecialCourt for Sierra Lmne: Some Preliminary Comments, I 1 E U K . J . INT'L I>. 857 (2000); Robert Cryer, A "SflecialCourt"fr,rSierr~cIdone?, 50 Iwr'~.& COMP.I... Q. 435,437 (2001); Suzannah Linton, Cambodia, Eml 7i'mnr anA S i m n Leone: Expnimenls in I n t m n t i o n n l , ~ u s L. FORUM 185 (2001); Avril McDonald,S i m n Leone's Shoestring Spccinl Court, ticc, 12 CRIM. 84 INT'L REV. RED CROSS121, 125 (2002); Melron C. Nicol-M'ilson, Accounlabilily for H,umnn fighls Abuses: The Unikd Nations'Sflecial Court for Sierrn Leon6 [2001] AUSTL.INT'L Lj.159, 163; Celina Schocken, The Special Court& Sierra Leone Dom~ieruand &commenINT'LL. 436, 450 (2002). daliom, 20 BERKELEYJ.



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gories of crimes have been defined by treaty law, the current benchmark being the provisions of the Rome Statute. In the case of crimes against humanity in particular, it is the threshold requiring that the acts be part of a "widespread or systematic attack directed against any civilian population" that poses much of the difficulty in interpretation and application. For the purposes of illustration, and because it is a matter of considerable interest at the present time, this Article examines, in detail, the terrorist acts committed on September 11, 2001. Most of the available evidence suggests the conclusion that the perpetrators are best described as "non-State actors," even if they may have received some support and encouragement from the existing government of Afghanistan. The existence of an armed conflict is also a matter of some debate, but certainly few would argue that this was a case of international armed conflict, in the sense of a war between two sovereign States. In the weeks that followed September 11, 2001, many recognized authorities in the field of international law described the attacks as a "crime against humanity." The U.N. High Commissioner for Human Rights ("UNHCR"), Mary Robinson, used this characterization," as did the London barrister, Geoffrey Robertson,"' and the French legal academic, Alain Pellet." In the academic literature, M. Cherif Bassiouni used the term "crimes against humanity," but without real e~planation,"~ while Antonio Cassese was somewhat more circumspect, observing cautiously that "it may happen that [Sltates gradually come to share this characterisation . . .""' Mark Drumbl discussed the matter without taking any real po~ition,~"mplying that it was perhaps so obvious as to require no discussion, as did Nico Schrijver."' 61. Press Release, U.N. High Commissioner of Human Rights, Statement by the High Commissioner for Human Rights to Informal One-Day Meeting of Commission on Human Rights (Sept. 25, 2001). 62. Geoffrey Robertson, Amen'ca CouM Setlle This Score Without Spilling Blood Across (U.IC), Sept. 18, 2001, at 18. Afgltunislan, TIMES 63. Alain Pellet, Non ce' n'est @s la guerre!, LE MONDE, Sept. 21, 2001, at 12. 64. Set. M . Cherif Bassiouni, Legal Conlrul of lnternational Terrmism: A Poliqy-Otiented INT'L L.J. 83, 84 (2002). Assesstnenl, 43 HARVARD 65. See Antonio Cassese, Terrorism is Also Disputing Some Crucial Lxgal Categmies or Internufional Law, 12 E U R .J . INT'L L. 993, 995 (2001). 66. See generally Mark A. Drumbl, Judging the I 1 September Terrorist Attack, 24 HUM. KTS. Q. 323 (2002). 67. See N .J. Schrijver, Responding lo Inlrmzaliunal IIPerron.~m:Moving the h n l i e r s of Intemntlu,zal luru jbr Enduring Freedom '9, 48 NETH.INT'L L. REV. 271, 282 (2001).

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Among non-governmental organizations("NG0s") , Human Rights Watch ("HRW) used the term "crimes against humanity,""' although the International Commission of Jurists ("ICJ") was more hesitant and equivocal.'' Justification for the use of the term "crimes against humanity" LO describe the terrorist acts of September l l t h hinges on what is essentially a literal reading of the definition of "crimes against humanity" that appears in Article 7(1) of the Rome Statute, namely murder "committed as part of a widespread or systematic attack directed against any civilian p~pulation".~" It is of course true that in a literal sense, the September l l t h attacks were "widespread" and "systematic," and the victims were "civilians." But then, this can be said of the conduct of practically any serial killer. There is no significant judicial precedent to support such an interpretation, despite the growing body of case law giving meaning to the concept of "crimes against humanity" in a contemporary setting. Moreover, those who advocate describing terrorist acts as "crimes against humanity" must deal with the uncomfortable fact that terrorism was quite explicitly excluded from the subject-matter jurisdiction of the ICC. The Rome Statute provides that the Court will have jurisdiction over genocide, crimes against humanity, war crimes and aggression, but it does not cover terrorism. The Final Act of the U.N. Diplomatic Conference of Plenipotentaries on the Establishment of an International Criminal Court ("Final Act"), adopted at the same time as the Rome Statute, notes that "terrorist acts, by whomever and wherever perpetrated, and whatever their forms, methods and motives, are serious crimes of concern to the international community" - language that implies that they ought to be included in the Rome S t a t ~ t e . ~The ' Final Act then goes on to regret the fact that no definition of terrorism could be agreed upon, adding that the situation may well change when the Rome Statute 68. See Human Rights Watch, H u t n n n Righrs N e w , St$fem/m If: One Year On: A Message lo the Human fights Community (Sep. 9, 2002), available at http://www.hnv.org/ press/2002/OY/septI I .htm. 69. See Roderico Andreu-Gueran, 7itn.r,,.istnr:el droils dt l ' h n t n n ~ , [ZOO21 REV. INT'L COMM'N O F JURISTS 31, 35. See nko U.N. Doc. A/CONF.185/C.l/L.27. 70. Rome Statute, .supra n.1 I , art. 7 ( 1 ) . 71. See Final Act of the United Nations Diplomatic Conference of Plenipotentaries o n the Estddishment of an International Crinlinal Court, Res. E, U.N. Doc. A/ CONE. l83/lO Uul. 17, 1998) [hererinafter Final Act].


is reviewed seven years after its entry into f ~ r c e . ~In ' its final statement at the Rome Conference, Turkey lamented the fact that terrorist crimes "were not covered by the S~atute."'~ The exclusion of terrorism from the Rome Statute is perhaps not as serious an obstacle as it may seem, however. Although "terrorism" is a concept that has eluded definition, there can be no doubt that acts that may terrorize civilian populations in order to achieve political objectives may also, in specific circumstances, constitute crimes against humanity, or war crimes, or for that matter, genocide. There is undoubtedly an overlap. But this does not mean that terrorist. acts are, by definition, crimes against humanity merely because they may appear to be "widespread or "systematic" attacks on civilian victims. There is something profoundly unsatisfjring about legal constructions that are rooted in literalism and that have n o precedent among judicial authorities. Progressive jurists tend to eschew literal interpretation in favor of a purposive or teleological approach, aimed at the true intent of the drafters of the legislation, rather than some unpredictable technical result that may fly in the face of what the provision was meant to say. The problem with the literal approach to crimes against humanity that is proposed by some jurists, is that while it may catch the events of September l l t h , it leaves the concept with indeterminate parameters and virtually impossible to distinguish from other "terrorist" acts of lesser magnitude, such as the release of sarin gas in the Tokyo subway, the bombings in the Paris metro, IRA bomb attacks in the City of London or at Canary Wharf,74or the destruction of the federal office building in Oklahoma City by a few right wing eccentrics. Until recently, it was generally agreed that crimes against humanity required a "State policy" component, and this would probably have been enough to exclude the events of September 1 1 th from the ambit of "crimes against humanity." This was how "crimes against humanity" were originally conceived of when the 7'2. See id.

73. Six: THE CRIMINAI. COUKI., THE KIN^ OF T H E ROMESTATUTE, Issrm, N ~ c o - r m ~ ~ KESULI~S n ~ s , 629 (Koy [.re ed., 2000). ~ N . I ~ E H N A ~ I F I O N A I .

74. See Dovyda Virka~nkas,7'lie Role of Seccitilj hfdligerrce Sewice i n (I Octrrocrrtq, Norlh Atlantic Tre(~ty Orgunizalion: Detwcrulic 1.11slilrition I%lloroslrij~sI-'roqan~me 1 5 (June 1 5, 1999). ~cvoilrcbbat h t t p : / / w w w . n a t o . i n t / a c i i d / f e I l o w / 9 7 - Y Y / (providing list of prominent terroris1 attacks in 1990s).

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term was first coined for the Nuremberg trial of the major war criminals. For example, in 1994, in one of the major national prosecutions for crimes against humanity, R. v. Fznta, the majority of the Supreme Court of Canada relied upon expert witness M. Cherif Bassiouni, who had testified that "'[Sltate action or policy' was a pre-requisite legal element of crimes against humar~ity,"~" view that seemed to be common ground even for the dissenters." But the law was already changing, and in 1997, a Trial Chamber of the IClY held that "crimes against humanity" required "a governmental, organizational or group policy" rather than the narrower ' [S]tate policy.'"" The Trial Chamber relied upon the views of the International Law Commission, which had greatly broadened the scope of crimes against humanity when it gave them an essentially negative definition, stating that this was driven by "the desire to exclude isolated or random acts."7x But focusing on this negative aspect can lead to absurd results, such as the inclusion of individual serial killers. In any event, the Trial Chamber limited the scope of "crimes against humanity by invoking the "policy" requirement, which, it must be said, had never been part of the literal definition of "crimes against humanity." At the very least, this expansion of the definition made it applicable to certain "non-State actors." The specific problem faced by the Trial Chamber of the ICTY in Tudic, was qualification of acts of "ethnic cleansing" carried out in furtherance of the Bosnian Serb entity that ruled over parts of Bosnia and Herzegovina from April 2992. According to the Trial Chamber: An additional issue concerns the nature of the entity behind the policy. The traditional conception was, in fact, not only that a policy must be present but that the policy must be that of a State, as was the case in Nazi Germany. The prevailing opinion was, as explained by one commentator, that crimes against humanity, as crimes of a collective nature, require a State policy "because their commission requires the use of the State's institutions, personnel and resources in order to com79. See R. v. Finw, [I9941 1 S.C.K. 701, 760-64. See nbo M. CI.IERIF BASSIOUNI, CHIMES ACAINSI. HUMANIIY 24-3-81 (2d rev. ecl., 1999). 76. See id. at 773. 77. SeeTadic Opinion and Jqdgement 1997, sufiro n.18, at para. 645. 78. See tin at para. 648.


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mit, or refrain from preventing the commission of, the specified crimes described in Article 6(c) [of the Nuremberg Charter]." While this may have been the case during the Second World War, and thus the jurisprudence followed by court, adjudkadng charges of crimes against humanity based on events alleged to have occurred during this period, this is no longer the case. As the first international tribunal to consider charges of crimes against humanity alleged to have occurred after the Second World War, the International Tribunal is not bound by past doctrine but must apply customary international law as it stood at the time of the offences. In this regard the law in relation to crimes against humanity has developed to take into account forces which, although not those of the legitimate government, have defacto control over, or are able to move freely within, defined territory. The Prosecution in its pre-trial brief argues that under international law, crimes against humanity can be committed on behalf of entities exercising de fact0 control over a particular territory but without international recognition or formal status of a "a2 jure" State, or by a terrorist group or organization. The Defence does not challenge this assertion, which conforms with recent statements regarding crimes against humanity.'"

As an authoritative statement of the law, this paragraph still leaves some ambiguity. T h e judges declare that "the law in relation to crimes against humanity has developed to take into account forces which, although not those of the legitimate government, have de facto control over, o r are able to move freely within, defined territory," indicating that the entity must be "State-like." Then, however, they cite the Prosecutor's view that this might extend to "a terrorist group o r organisation," a view apparently unchallenged by the Defense. But an ephemeral reference to submissions by the Prosecutor is hardly a firm precedent. And, absent this puzzling sentence in the Tadicjudgment, there is little else in the way ofjudicial authority upon which to anchor the contention that terrorist acts like those of September 1 1 th constitute crimes against humanity. T h e approach of the Trial Chamber in Tadic was confirmed a year later at the Rome Conference, when delegates agreed to include within the text of the definition of "crimes against humanity" a reference to the policy element. Paragraph 7(2) (a) of 79. See id., at para. 654.

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the Rome Statute states that the words "attack directed against any civilian population," which are part of the opening words of the definition of "crimes against humanity," "means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to o r in furtherance of a State or organizational policy to commit such attack."'" The Elements of Crimes and Rules of Evidence and Procedure, adopted subsequent to the Rome Conference in order to provide greater clarification and specificity to the definitions, wrestle with the issue of State or organizational policy, but do nothing to clarifjr whether this might extend to a group like Al-Qaeda. In a rather surprising judgment, the Appeals Chamber of the ICTY has ruled recently that no plan or policy is required as an element of the definition of "crimes against humanity."" The judges stated that "[t] here was nothing in the Statute o r in customary international law at the time of the alleged acts which required proof of the existence of a plan o r policy to commit these crimes," adding in a footnote that "[tlhere has been some debate in the jurisprudence of this Tribunal as to whether a policy or plan constitutes an element of the definition of crimes against h ~ m a n i t y . " ~ T h e rise no mention in the judgment of the "plan" requirement in Article 7 of the Rome Statute. One would have expected the judges to at the very least address this anomaly. Perhaps the reference to customary law "at the time" the acts were committed is meant to suggest that the Court considers plan or policy to be a requirement now, even if it was not in the early 1990s. The best that can be said is that the situation is far from clear. It is certainly rather facile to rely upon a literal application of the words "widespread o r systematic" so as to subsume the terrorist acts of September I 1 th within the ambit of "crimes against humanity." Despite the recent ruling of the Appeals Chamber, there is much support for the view that historically, crimes against humanity required an ingredient of State policy, and that this was later extended to cover atrocities by "State-like" 80. See Rome Statute, sr~jn-a11. l I , art. 7(2) ( a ) . 81. See Prosecutor v. Kuna~ac,d nl., Case N o . IT-YWL3 & IT-96-23/1-A, Judgement, at para. 98 (June 12, 2002). 82. See id. at pala. 98,n.l 14.


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entities is beyond dispute. As a Trial Chamber of the ICTY wrote: "[tlhe need for crimes against humanity to have been at least tolerated by a State, government or entity is also stressed in national and international case-law. The crimes at issue may also be State-sponsored, or at any rate, may be part of a governmental policy or of an entity holding defado authority over a territ~ry."~" Whether crimes against humanity also reach into the vast realm of crimes that are more than "random or isolated acts" committed by organized groups like Al-Qaeda,84the Red brigade^,'^ the Baader-Meinhof gang,'" the lrish Republican Army," the Ulster Volunteer Force,"" and for that matter - why not? - the Hell's Angels, can hardly be considered to be settled as a matter of law. The very reason why the concept of crimes against humanity was originally developed at Nuremberg, was so that atrocities that went unpunished by the judicial authorities of the State in question would not escape prosecution. Mass murder of the disabled, or of the Jews and the Gypsies, might have been cloaked in some bizarre legality within Germany, but pursuant to the Nuremberg Charter, these acts would not go unpunished. This continues to be the case with respect to crimes conducted as part of a State policy, or the policy of a "State-like" entity like the Republika Srpska (Serbian Republic), or the Revolutionary Armed Forces of Colombia ("FARC")"Y-controlledzones in cen83. See Prosecutor v. Kupreskic, el ol., Case No. 1T-95-1&T,Judgement, at para. 552 Uan. 24, 2000). 84. See U.S. Dep't of State, Appendix 8: Bnckground lnforntalion on Terroris1 Groups (Apr. 30, 2001), nunilable nl http://www.state.go~~/s/ct/rls/pgtrpt/2000/245O.htm [hereinafter Terrorist Grotifi I n f i n a t i o n ] . 8.5. Sa? Red Srigtrk.~Brigale Rosst!, m~niktble nl h~tp://www.ict.org.iI/i~~tel_ter/ orgdet.cfin?orgid=S6 (describing group as Marxist-Leninist whose aim is separation of Italy from M'cstern Alliance). I t is an ultra-Leftist group that left its mark on the Italian political scene in the 1970s and 80s. Id. 86. See &d A m y F(iction ("KAY):Barthr-Meinhof Gong, nuailable nt http://www.ict. org.il/inter-ter/orgdet.cfn1?orgid=J5 (stating that RAF was born out of student protest movement in the 1960s). It emerged from the Baader-Meinhof Gang and its ideology was based on a commitment to violence in the service of the class struggle. Id. 87. See 7'errmisl Croup InfmnLion, suprrc n.84 (describing lrish Republican Army ("IRA") as Marxist terrorist group formed it1 1969 as clandestine armed wing of Sinn Fein, the political movement dedicated to removing British forces from Northern Ireland and unifying Ireland). 88. See BBC, Pammilitaries: Ulster Volunteer Force, nunilrtble at http://www.bbc.co.uk/ history/war/troubles/Fdctfiles/i~vf.sht~nI (stating that Ulster Volunteer Force ("UVF") was formed in 1966 to combat rise in lrish nationalism). 89. See Terrorist C.roufi I n f m n l i o n , supra 11.84 (describing FARC as the largest, besttrained, and best-equipped insurgen~organization in Colombia). Established in 1964


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tral Colombia. But it is hardly a problem with respect to genuine terrorist groups, where the justice systems of the States, whose populations are targeted, are more than eager to prosecute. As a general rule, the problem with contemporary terrorist groups is apprehending the perpetrators, and not with finding some legal framework by which the courts of the territory where the crimes were committed may prosecute. The enthusiasm of human rights lawyers for the "crimes against humanity" qualification in the aftermath of September 1 1 th is probably explained by two factors. First, there was quite a legitimate revulsion at the military response proposed by Washington and many felt that if a strong case could be made for criminal prosecution, this would answer arguments by which bombing Afghanistan was the way to bring Al-Qaeda to justice. But the very compelling argument that criminal prosecution was preferable to military attack, does not at all require that the terrorist acts be described as "crimes against humanity." Murder in Manhattan can be prosecuted under both State and federal law, and it is subject to the most supreme of penalties. Indeed, a prosecutor in New York City would see little benefit in an indictment for crimes against humanity, with its complex thresholds and contextual elements, when 2,900 charges of murder would be more than enough to do the trick, and far easier to prove. Second, as US. opposition to the ICC continued to accelerate, there was a sense that highlighting the new dynamism of international criminal justice might help the American public opinion to evolve in a positive direction. Recognizing that the ICC could not itself fill the gap as the Rome Statute can only cover acts subsequent to its entry into force (which took place on July 1, 2002), some went so far as to call for the establishment of a new international tribunal.'" This would, of course, have been an option, but it would also have required a decision by the Security Council, and that is tantamount to saying that it could only be created if this was the desire of the US. government. Even if the ICC had been in operation, and even if the United States had been a State Party to the Rome Statute, the Court could never have been the forum for prosecution of the as a guerrilla army, FARC is organized along military lines and includes several urban fronts. Id. 90. Set Rome Statute, s u p r ~n.11, ~ art. I 1 ( 1 ) .


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September 1lth terrorists. That is because the Rome Statute only allows the ICC to exercise its jurisdiction when those States that normally exercise criminal jurisdiction over a crime, are either unwilling or unable to p r o ~ e e d . ~And ' never has a justice system been more willing and more able to act than in the present case. The suggestion that international justice would be preferable because it would be impossible for Al-Qaeda terrorists to get a fair trial within the United States, should not be entertained. Like all justice systems, that of the United States is not without serious problems. But in terms of fairness and the rights of the defense, it stands up rather well against its competitors. There can be little doubt that terrorists accused before the State or federal courts in New York City would be provided with all of the basic guarantees of a fair trial set out in such international standards as Article 14 of the ICCPR.Y2 Advocates of describing the September 11th events as "crimes against humanity" sometimes argue that the text of Arti91. See id. art. 17(l)(a). 92. See ICCPR, supra n.40, art. 14. Article 14 reads, in relevant part: I . All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law . . . 2. Evelyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed proinptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) T o be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. Id.

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cle 7 of the Rome Statute should be interpreted broadly and flexibly. In this way, unclear cases, like the Twin Towers attacks, are to be made to fit within the definition. These advocated have obviously forgotten the terms of Article 22(2) of the Rome Statute, which reads: "The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or c o r ~ v i c t e d . " But ~ ~ aside from concerns about fairness to the accused, supporters of the ICC should consider the damage that an excessively liberal interpretation may d o to the ratification campaign. Concern about a "flexible" interpretation of the definition of "crimes against humanity" are surely very much in the minds of the many States who have signed the Rome Statute, but hesitated at ratification. To summarize, while a literal reading of the definition of "crimes against humanity" may plausibly be considered to catch the September l l t h atrocities, a purposive and contextual construction provides considerable support to the contrary view. Certainly, there is no particular legal interest in describing them as "crimes against humanity." Attempts to stretch the definition so as to encompass these criminal acts may actually discourage ratification of the Rome Statute. The terrorist acts of September l l t h constitute murder on a mass scale, punishable as an ordinary crime by the courts of the United States. Never in human history has a State been more willing and able to prosecute than in the case of the September l l t h attacks. There is no need to bring to bear the emerging body of international law that has developed in order to address impunity when the State where the crimes took place is unwilling or unable to prosecute. Indeed, efforts to encompass terrorist crimes, like the attack on the World Trade Center, may ultimately distort and damage the campaign against impunity.

CONCLUSION Non-State actors - like State actors - are increasingly exposed to the threat of accountability and punishment for abuses of human rights. If human rights law has shown itself to be somewhat limited with respect to non-State actors precisely because it is focussed on the obligations of the State towards indi99. Sec Rome Statute, s 7 ~ p r an.1 I , art. 22.2.


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vidual's within its jurisdiction, this is not the case when it comes to individual liability for international crimes. The broadening of the scope of the concept of "crimes against humanity" and war crimes in recent years, so as to include acts committed in time of non-international armed conflict, has been of decisive importance in this respect. As the judges at Nuremberg observed in condemning the Nazi leaders for their atrocities: "[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."94

94. .See Judicial Decisions, supra 11.43.

Torture Committed by Non-State Actors: The Developing Jurisprudence from the Ad Hoc Tribunals JILL MARSHALL*

Abstract. This paper examines the jurisprudence of the ad hoc war crimes tribunals on torture. Through case law analysis, it investigates the dcvelopmcnt of a definition oftorture at customary international law for international criminal law which differs from that in the UN Torture Convention and that generally applied in human rights law. The author examines this analysis for insights into individual responsibility and individual protection under international criminal law and international human rights law.

1. Introduction In the 1990's, both the former Yugoslavia and Rwanda, completely separately, experienced vicious civil and ethnic conflicts in which many atrocities were committed. These included genocide, large-scale executions, expulsions of groups of people from varying ethnic or religious backgrounds, mass rapes and gross sexual abuses, often on a systematic and planned basis. Hatred expressed through vile acts on former neighbows was widespread. In the midst of this chaos, international law eventually intervened. Diplomatic negotiations led to investigations culminating in reports of the United Nations' Secretary-General. These reports recommended the establishment of the first ad hoc tribunals seen internationally since those at Nuremberg after World War 11.' The UN Security Council set up the ad hoc tribunals - the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) -pursuant to its power to decide on measures necessary to maintain or restore international peace and security. The Statutes of both tribunals differ and run on separate court systems: the ICTY in the Hague and the ICTR in the Hague and

* Dept of Law, Queen Mary University of London; email [email protected]. With thanks to refcrecs of Non-State Actors and International Law for their helpful comments. I SC Res. 827,25 May 1993 (cstablishing the International Criminal Tribunal for the Former Yugoslavia (ICTY)); SC Rcs. 955, 8 Nov 1994, reprinted in 33 ILM (1995, (establishing the International Criminal Tribunal for Rwanda (ICTR)). SC Rcs. 780, (1992) had established a Commission of experts in the former Yugoslavia. The decision to establish the ICTY was taken after thc findings of this Commission: UN Doc. S12522 1,Annex I, para 9. The Security Council adopted the Statute for the ICTR after having noted a number of reports on the situation in Rwanda indicating that genocide and other systematic widespread violations of international humanitarian law had been committed there. A special tribunal was also later established in relation to alleged violations of international law in Sierra Leone - UN Doc. S/20001915 -in October 2000. The Sierra Leone court will not bc examined in this article. See J. O'Brien "The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia" (1993) 87 AJIL 639; A. Cassese International Criminal Law (Oxford: Oxford University Press 2003) for more details of these proccsscs.

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Arusha. However, both share a common prosecutor and a common Appellate Chamber. Now in the "'midlife' stage of the [ICTY's] e~istence",~ and as the International Criminal Court (KC) prepares its prosecutions, analysis is presented in this article of the jurisprudence of these two ad hoc tribunals. The analysis is specific, focusing only on the tribunals' developing jurisprudence on the definition of torture and the requirement or not for public official involvement. A shift - highlighted by some scholars recently - is evident in this definition of torture.3 Through case law analysis from the ad hoc tribunals - and it is mainly from the ICTY - it is shown how individual responsibility for one's actions, irrespective of who you are, is paramount. This analysis is used to question the nature of individual protection and responsibility, particularly the state's role in that, at international criminal and international human rights law. Although the focus rests on the ad hoc tribunals' jurisprudence, a brief overview will be given of, first, the position of torture under international law and how it is defined in International Conventions and then, secondly, how these definitions have been developed by human rights' courts.

2. Torture Definitions in International Conventions Torture is almost universally viewed as such an extreme violation of fundamental human rights that no derogation is possible from its prohibition. However, although condemned on a worldwide scale, there is also evidence of its regular p r a ~ t i c e . ~ Torture is both morally and legally condemned in the 1948 Universal Declaration of Human Rights which at Article 5 states that "no-one shall be subjected to torture or to cruel, inhuman or degrading treatment or p~nishment."~ Torture's prohibition is commonly considered to be of jus cogens status at customary international law, being a non-derogable peremptory norm of international law, binding without the need for However, it is positively legally prohibited in conventions treaties and ~ignatories.~ binding on their state signatories where certain definitions are sometimes set out. Definitions are provided in the Declaration on Torture 1975 at Article 1; the InterAmerican Torture Convention 1985Article 2 and the UN Convention Against Torture (UNCAT) Article 1.' Torture is prohibited in other international treaties but no P. V. Sellers "lndividual(s') Liability for Collective Sexual Violence" in K. Knop (ed) Gender and IIuman Rights (Oxford: Oxford University Press 2004) at p. 155 referring to minutes of the SC, 4429th mecting, 27 Novcrnbcr2001, SlPV.4429 (discussing the Prosecutor's "exit strategy" for the ICTY and the ICTR). See M. Evans "Getting to Grips with Torture" (2002) 5 1 ICLQ 365; M. Evans "State Rcsponsibility and the European Convention on Human Rights: Role and Realm" in M. Fitzmaurice and D. Sarooshi (cds) Issues of State Responsibility Before International Judicial Institutions (Oxford: Hart Publishing 2004); C. de Than and E. Shorts International Criminal Law andHuman Rights (London: Sweet & Maxwell 2003) at chapter 7. See, for example, www.hrw.orgldocl?~torturc;www.amnesty.org. UDHR 1948 General Assembly Resolution 2 17A (111). "ee, for example, N. S. Rodley The Treatment ofPrisoners in International Law, 2nd Edn (Oxford: Clarendon Press 1999) at p. 74. ' Declaration on the Protection ofAll Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by GA Res. 3452 (XXX) of 9 December 1975; the InterAmerican Convention to Prevent and Punish Torture 9 December 1985, 25 1.L.M (1986) 519; UN

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definition is expressly set out.8It can constitute violations of international humanitarian and criminal law, as well as human rights law. Protection during times of war is provided by the prohibition on torture in the Geneva Conventions which provide protection and regulation during wars.9Those protected are divided between combatants and non-combatants. Protection is given during times of conflicts both internationally and non-internationally, with greater protection given to victims of the former. Torture is prohibited pursuant to these Conventions, and their two additional protocols, as a crime against humanity and a war crime.1° Because of the lack of definitions of torture, when one is sought in cases before courts, reference is usually made first to UNCAT. The definition provided there clearly requires the requisite pain and suffering to be ". . . inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . . ." But the question is, does this definition reflect the customary international legal position? The ad hoc tribunals'jurisprudence has evolved to show that it does not. Before this evolution is investigated, I want to briefly look at how the definition of torture has been dealt with by human rights' courts.

3. Human Rights' Courts Interpretation of Torture Definitions

The Inter-American Court of Human Rights and the European Court of Human Rights (ECtHR) have investigated the meaning of torture, seeking to interpret the relevant legal instruments in their juri~prudence.'~ As a consequence, a broadening of what falls within the scope of "an act of a public official" has occurred and there is an increased tendency to focus on what the state can legitimately be held responsible for. A state may, in certain circumstances,be in breach of its human rights' obligations when it fails to prevent forms of torture from occurring, as well as for its own officials actually carrying out the torture. Convention against Torture and Other Cmcl, Inhuman or Degrading Treatment or Punishment, GA Rcs. 39146; 1465 U.N.T.S 85,23 1.L.M (1985) 535. For cxample, in the Intcmational Covenant on Civil and Political Rights 1966 at Article 7, the American Convention of Human Rights 1969 Article 5 and the Europcan Convention on Human Rights and Fundamental Freedoms 1950 (ECHR) at Article 3. Other specific human rights instruments also condemn acts of torture, for cxample, the Convention on the Rights of the Child 1989 Article 37. The first Gcncva Convention seeks to provide assistance to wounded and sick Armed forces in the field; the sccond to the wounded and sick and shipwrecked at sea; thc third provides for the treatment of Prisoners of War and the fourth rclates to the protection of civilians: see 75 UNTS 31, 75 UNTS 85, 75 UNTS 135, 75 UNTS 287. Articlc 2 to all four Conventions specifies when the four conventions are to apply. This includcs all cascs of dcclarcd war or othcr armcd conflict arising bctwccn two or morc of thc partics to thc Conventions. These Conventions apply in addition to human rights law protection. "' "[I9771 Protocol Additional to thc Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armcd Conflicts" 8 June 1977, 1125 UNTS 3 (entered into forcc 7 Dec 1978), 16 ILM 1391 (1977) and "[I 9771 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armcd Conflicts" 8 June 1977 1124 UNTS 609 (entered into force 7 Dec 1978) 16 ILM 182 (1977). I ' See VelasquezRodr~guezv Hondurm 29 July 1988 in the Intcr-American Court and extcnsivc European casc law from Ireland v UK 18 January 1978 onwards.

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The division in interpretations by the ECtHR in different cases has been noted by some commentators.12For example, in Selmouni vFrance 1999, in contrast to earlier ECtHR jurisprudence, recourse is made to UNCAT, requiring public official involvement.I3How this impacts on human rights protection for torture will be analysed further below. Yet it is in the ad hoc tribunals' jurisprudence where the public official element has most clearly been discarded in the context of its interpretation of torture under customary international and international criminal law. It is here that individual responsibility for actions is clearly required - regardless of that individual's status. The subject of international law has traditionally been the nation state, leaving individuals with no direct status under international law, instead having to depend on the support of national governments to bring cases on their behalf.14However, individuals have been recognised as the subjects of international law in their own right in the fields of human rights and international humanitarian law.I5With the expanding reach of these areas of law and the rapid development of the inter-related area of international criminal law, including the establishment of the ad hoc tribunals and the ICC, national governments are no longer free to treat "their" citizens as they think fit. Instead new norms in political affairs set out limits on, and curtailments of, state power.I6 Increasingly, new norms are also emerging internationally to prevent and punish particular instances of individuals' power over other individuals, regardless of where such events take place and who those individuals are. Such norms can be seen from the ad hoc tribunals' prolific jurisprudence.

4. Ad Hoc Tribunals' Development Pursuant to Articles 2 to 5 of the ICTY Statute, the ICTY has jurisdiction over grave breaches of the Geneva Conventions, other violations of the laws or customs of war, genocide, and crimes against humanity allegedly committed after 1 January 1991 in

l 2 For example, see M. Evans supra note 3 and OMCT Europe "Interpretation of the Definition ofTorture or Cruel, Inhuman or Degrading Treatment or Punishment in the light of European and International Case law" presented to the EU Network of Independent Experts in Fundamental Rights 30 October 2004. For example, comparisons are highlighted between HLR v France 29 July 1997 and Selmouni v 1;rance 28 July 1999,29 EHRR 403 in the OMCT report. " The Selmouni line has been followed in, for example, Ilhan v Turkey 27 June 2000,34 EHRR 36: see analysis by M. Evans 2004, supra note 3. l4 In comparison to the cases before the ICTY, for example, the International Court of Justice (ICJ) heard the case of Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro) 1993 ICJ. Proceedings were therefore taken by one state against another undcr thc Statute of the ICJ to which only States can be party. To prosecute individuals alleged to have committed crimes, the domestic courts of a State or an International War Crimes Tribunal is needed. See T. Franck The Empowered Self (Oxford: Oxford University Press 1999) at chapter 8 and Y. Dinstein "International Criminal Law" (1975) 5 Israel Y E Hum Rts 55. ' T e e D. Held "The Changing Contours of Political Community: Rethinking Democracy in the Context of Globalization" in B. Holden (ed) Global Democracy: Key Debates (New York and London: Routledge 2000) at p. 25.

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Non-State Actors and International Law TORTURE COMMITTED BY NON-STATE ACTORS

175

the former Yugo~lavia.'~ The ICTR is to adjudicate genocide, crimes against humanity and violations of Article 3 common to the Geneva Conventions and of the Second Additional Protocol allegedly perpetrated in Rwanda, or in the territory of neighbowing states, if committed on Rwandan citizens between 1 January and 3 1 December 1994.'8 Torture can be covered by all of these provisions to varying degrees.'? Both tribunals have to apply relevant and well-established law, including customary international law, in interpreting these Articles in its case law.20 4.1. Beginnings: Public OfJlcial Znvolvement Behind every one of these cases invariably lies human tragedy and real life horrors of individual^.^' The unpicking of the legal meaning of torture at customary international law, perhaps not surprisingly then, arises frequently. As already mentioned, the first point of reference in defining torture is usually the definition provided in Article 1 of UNCAT.22This is indeed how the ad hoc tribunals began their jurisprudence in this area. In the leading case from the ICTR, Prosecutor v Akayesu, 2 September 1998, the UNCAT definition was used to provide the relevant definition of torture for the purposes of interpreting the tribunal's Stat~te.~' In Prosecutor v Delalic et al, 16 November 1998,2"he trial chamber of the ICTY endorsed the approach taken in Akayesu. The ICTY examined the issue in more detail looking first to its own Statute and the Geneva Conventions. Finding no definition or elaboration of torture given there, it sought to find a definition of torture in customary international law.25To do this, it looked to the jurisprudence of the ECtHR for guidance and went systematically through the international instruments prohibiting tort ~ r e From . ~ ~ these, it found definitions in three: the Declaration on Torture 1975 Article 1, UNCATArticle 1 and the Inter-American Torture Convention 1985. It concluded that "[ilt may . . . be said that the definition of torture contained in [UNCAT] includes the definitions contained in both the Declaration on Torture and the InterAmerican Convention and thus reflects a consensus which the Trial Chamber considers to be representative of customary international law."27

Scc Statutc citations supra notc 1. Ibid. lY For cxamplc, torture can be a grave breach of thc Geneva Conventions, a war cnme and or a crime against humanity. 2" As specifically stated in the Secretary-General's Rcport at p. 9 and in the numerous judgmcnts from both tribunals. Z' There are many books written on the human tragedies of these conflicts. See for cxamplc, S. Drakulic They would never hurt afly: War criminals on trial in the Hague (London: Viking Pcnguin 2004); L. Silber and A. Little The Death of Yugo.slavia (London: Penguin 1996); F. Kcane Season of Blood: Rwandan Journey (London: Pcnguin 1996). " Supra notc 7 . ' W o s e c u l o r v Jean-Paul Akuyesu, 2 September 1998, ICTR-9U-T at paragraph 593 and 594. 24 Prosecutor v Delalic, Mucic, Delic and Landzo, 16 November 1998, IT-9C21-T. 2' Ibid. at paragraph 44 1. Z6 Supra notc 24 at paragraph 452. '' Supra note 24 at paragraph 459. " 'R


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The tribunal in Delalic, like that in Akayesu, set out the elements of torture required for the purposes of applying the relevant articles of its own Statute as follows: (i) there must be an act or omission that causes severe pain or suffering, whether mental or physical, (ii) which is inflicted intentionally, (iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind, (iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official So far, the same as the UNCAT definition. Thus both tribunals initially stressed the unity between the approach to torture in human rights law and international criminal law.29In particular, the requirement of public official involvement in the acts or omissions was retained. But were they accurately reflecting the role of international law in protecting the individual in doing so? 4.2. The Pivot The ICTY's statute, international humanitarian law and international criminal law, continued to be interpreted in this way, that is, in accordance with the human rights' definition in UNCAT, in Prosecutor v Furundzija heard before the trial chamber on 10 December 1998.30However, reference was also made to some additional elements. This pivotal turning point in the case law shows the tribunal's reasoning move from an international human rights to international criminal law definition of torture, if only in a few sentences, and only very slightly. As before, the trial chamber turned to international human rights law to determine the definition of torture under customary international law. Additionally, it sought to identify and spell out some specific elements pertaining to torture in relation to armed conflicts. The tribunal's understanding of international human rights law prohibitions on torture meant that states had an obligation toprohibit andpunish torture, as well as refrain from engaging in it through its officials. Although the trial chamber took the torture definition from the UNCAT definition as had happened in Akayesu and Delalic, it also drew attention to the fact that Article 1 of UNCAT explicitly provides that the definition contained therein is "for the purposes of this C~nvention."~' "It thus seems to limit the purport and contents of that definition to the Convention solely. An extra-conventional effect may however be

Supra note 24 at paragraph 494, set out in a slightly different form but substantively the same in Akayesu, supra note 23 at paragraph 594. This is identical to thc UNCATArticle 1 definition. 29 See M. Evans 2002 and 2004, supra note 3 at pp. 376-377 and p. l49ff respectively. lo Prosecutor v Anton Furundzija 10 December 1998 ICTY-95- 1711-T10. I' Supra note 30 at paragraph 160. See also paragraph 159.

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produced to the extent that the definition at issue codifies, or contributes to, developing or crystallising customary international law."32 In its attempt to identify or spell out some specific elements that pertain to torture under international criminal law in armed conflicts, it defined torture as in Akayesu and Delalic (and therefore Article 1 of UNCAT), but with the additional inclusion of humiliation as one of torture's purposes; in the context of an armed conflict and a slight change in the state official requirement wording to: at least one of the persons involved in the torture proccss must be a public official or must at any rate act in a non-private capacity: e.g. as a dc facto organ of a state or any other authority-wielding entity.

Whilst Furundzija provides the pivot for the shift from human rights and state responsibility to criminal and individual responsibility, it is in the later case of Prosecutor v Kunarac, Kovac and Vukovic, of 22 February 2001, where the clearest, and most in depth, expression of the tribunal's reasoning in this area can be found.33 4.3. A new definition: Kunarac

The tribunal in Prosecutor v Kunarac et a1 noted that on many occasions it had recourse to instruments and practices developed in international human rights law, given the "paucity of precedent" in international humanitarian law. The resemblance between the two areas of law, in terms of goals, values and terminology, was noted. Indeed, the tribunal even went so far as to say that, with regard to certain of its aspects, international humanitarian law has fused with international human rights law. Further, recourse to human rights law was welcomed and of assistance in determining the content of customary international law in the field of international humanitarian law.34 However, note the phrase "with regard to certain of its aspects" - quite clearly not all. The tribunal continued to explain that the absence of an express definition of torture under international humanitarian law does not mean that this body of law should be ignored altogether. In particular, when referring to definitions in the context of human rights law, the trial chamber pointed out that consideration must be given to what they described as the two crucial structural dgferences between these bodies of law.35 It is worth examining the tribunal's analysis of these structural differences in some detail as it provides ample evidence of an understanding of the individual now protected, and correspondingly, accountable, under customary international law.

State Actor The tribunal in Kunarac explicitly highlighted that the role and position of the state as an actor is "completely different" in human rights and international humanitarian law.

3' ?' 34

"

Supra note 30 at paragraph 160. Prosecutor v Kunarac et al. 22 Fcb 2001 IT-96-23-T and IT-96-2311-T. Supra note 33 at paragraph 467. Supra note 33 all at paragraph 470.

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Human rights law was stated to be essentially born out of the abuses of the state over its citizens and out of the need to protect the latter from state-organised or statesponsored violence. In contrast, humanitarian law aims at placing restraints on the conduct of warfare so as to diminish its effects on the victims of the hostilities. In human rights law, the state is the ultimate guarantor of the (individual's) rights which it (the state) has to protect. It has both duties and a responsibility for the observance of those rights. If the state violates those rights or fails in its responsibility to protect the rights, it can be called to account and asked to take appropriate measures to put an end to the infringements. In international humanitarian law, and in particular in the context of international prosecutions, the role of the state is, when it comes to accountability, peripheral. Individual criminal responsibility for violations of international humanitarian law does not depend on the participation of the state and, conversely, its participation in the commission of the offence is not a defence to the perpetrator. International humanitarian law purports to apply equally to, and expressly bind, all parties to the armed conflict. In contrast, human rights law generally applies to only one party: that is, the state involved and its agents.

Non-State Actor In contrast, that part of international criminal law applied by the tribunal is a penal law regime. It sets one party - the prosecutor - against another - the defendant. In the field of human rights, the respondent is the state. Structurally,this has been expressed by the fact that human rights law establishes lists of protected rights whereas international criminal law establishes lists of offences. The trial chamber expressed its caution in not embracing too quickly and too easily concepts and notions developed in a different legal context. Notions developed in the field of human rights can be transposed into international humanitarian law only if they take into consideration the specificities of the latter body of law. Set in this context, the tribunal highlighted that UNCAT makes it "abundantly" clear that its definition of torture is limited in scope and was meant to apply only for the purposes of this Convention. Additionally, Art l(2) of UNCAT states that the Article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. If the individual is given broader protection, he or she shall be entitled to benefit from it. And so the tribunal conducted a thorough search for a definition not only in UNCAT but in the 1975 Declaration on Torture, the Inter-American Torture Convention, the UN Declaration on Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights (ECHR).36 Whilst noting that it is a general requirement that the state or one of its officials take part under the ECHR, because it is clearly addressed to member states not to individuals, even so, the ECtHR's jurisprudence has held that Article 3 may also apply in situations where organs or agents of the state are not involved. The tribunal also noted that the Human Rights Committee has held that the protection is not limited to acts '"upra

note 33 at paragraph 474 478 and 480.

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committed by, or at the instigation of, public officials but also possessed horizontal effects. Accordingly, through this reasoning process, the trial chamber came to the view that the definition of torture contained in UNCAT cannot be regarded as the definition of

torture under customary international law. The UNCAT definition was meant to apply at inter-state level, directed at states' obligations and to apply only in its own context when there was no wider protection elsewhere. For ICTY purposes, such a definition of torture serves only as an interpretational aid." The contentious elements of the definition of torture under customary international law were stated to be: the list of purposes regarded as illegitimate (those definitely covered are obtaining information or confessions; punishing, intimidating or coercing the victim or a third person; discriminating against the victim or third person). the necessity, if any, for armed conflict (this depends on the classification of the offence as a grave breach, war crime or crime against humanity). the requirement, if any, of public official infliction or instigation. Most importantly for the purpose of the analysis here, the trial chamber noted that, as regards the public official element, it had to identify those elements of the definition of torture under human rights law which are extraneous to international criminal law, as well as those present in international criminal law but possibly absent from the human rights regime. To this end, a clear distinction was drawn between provisions addressed to states and their agents, and provisions which are addressed to individuals. Violations of the former result exclusively in the responsibility of the state to take the necessary steps to redress or make reparation for the negative consequences of the criminal actions of its agents. On the other hand, violations of the second set of provisions may incur individual criminal responsibility regardless of the individual's official status. While human rights are almost exclusively of the first sort, humanitarian provisions can be both or mixed in nature.38 The perpetrator will be individually criminally responsible for violations of the relevant articles of the tribunal's Statute. Articles 1-7 of that Statute make it clear that the identity and official status of the perpetrator is irrelevant insofar as it relates to accountability. There is no privilege under international criminal law which would shield state representatives or agents from the reach of their resp~nsibility.~~ In this context, the state's participation becomes secondary and peripheral. W2th or without the state S involvement, the crime remains of the same nature and bears the same consequences. The involvement of the state may trigger more risk or different rules but it does not modify or limit the guilt or responsibility of the individual who camed out the crimes in question. The characteristic trait of the offence is found in the nature of the act committed rather than in the status of the person who committed it.40

37 '8 39

40

Supra note 33 at paragraph 482. Supra note 33 at paragraph 489. Supra note 33 at paragraph 494. Supra notc 33 at paragraph 495, rcfcmng also to thc ICC's statutc whcrc thcrc is no rcquircmcnt for


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JILL MARSHALL

In conclusion, the tribunal found that: the dcfinition of torturc under intemational humanitarian law docs not comprise the same elements as the definition of torture generally applied undcr human rights law. In particular, the Trial Chamber is of the view that thc presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offencc to be regardcd as torture under internat~onalhumanitarian law. (at paragraph 496)

On this basis, the elements of torture in intemational humanitarian law under customary intemational law are: (i) the infliction by act or omission of severe pain or suffering physical or mental (ii) it must be intentional (iii) the act or omission must aim at obtaining information or a confession or at punishing, intimidating or coercing the victim or a third person or at discriminating on any ground against the victim or a third person. This clear contrast shown in the tribunal's understanding of the role of human rights with that of international criminal law is striking. International criminal law is explicitly concerned with individual protection and individual accountability, regardless of the individual's status and role in state organs. As clearly articulated by the trial chamber in Kunarac, the traditional view of human rights law is to prevent abuses by the state on the individual. Human rights law is viewed as some sort of protector for the individual from state invasion or interference. It is often interpreted as a brand of law that guards the rights individuals inherently possess, by virtue of being human. On this view, human rights law must necessarily involve some sort ofbalancing exercise with others' rights, inevitably entailing conflicts, particularly between the individual and what the state can do or must not do to him or her. Is the best interpretation of human rights law that it protects the individual from the state? As Evans has noted, the general position on state responsibility for the human right violation of torture places the sphere of action very much in the public - the sphere for state action - and fits with the traditional public-private divide, guarding the boundary between the State and the individual. As such, a violation of human rights law will be found if that "boundary" has not been re~pected.~'

state official involvement as an clement in torturc. On appeal, this was confirmed - see the Kunarac Appeal Judgmcnt, 12 June 2002, IT-96-23 and IT-962311-A, at paragraph 148. 4 1 M. Evans 2004, supra note 3 at p. 149. This traditional split in liberal theory is criticised from many quarters. For example, feminists have pointed to the gendcred, hierarchical nature of the division between the public and the privatc which works to women's disadvantage. This analysis is beyond the scope of this article but scc, for example, K. O'Donovan Sexual Divisions in the Law (London: Weidenfeld & Nicholson 1985); N. Lacey Unspeakahle Subjects: feminist essays in legal and social theory (Oxford: Hart Publishing 1998); C. Pateman "Fcminist Critiqucs ofthe PubliciPrivate Dichotomy" in A. Phillips (ed) Feminism and Equality (Oxford: Basil lack well 1987). In the context of international law, see H. Charlesworth and C. Chinkin The Boundaries of'lnternational Law: a feminist analysis (Manchester: Manchester University Press 2000); C. Romany "State Rcsponsibility goes private: a Feminist Critique of thc Public/Privatc Distinction in International Human Rights Law" in R. J. Cook (ed) Human Rights of Women (Philadelphia: University of Pennsylvania Press 1994).

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It is increasingly evident in human rights law that states can be held responsible for actions of individuals and actions between individuals (horizontal effect). This finding will be made if the state fails to regulate behaviour that has deprived one of these individuals, or a particular category of individuals, of an essential aspect of a right which

it is obliged to secure and ensure. Torture, as well as inhuman and degrading treatment, is one such category of b e h a ~ i o u rThis . ~ ~ is clearly much more encompassing than the trial chamber's representation of human rights law in Kunarac as protecting the individual from state violence. However, it remains the position that even though states may have obligations under human rights law to take action against perpetrators to prevent abuse and to punish them, once they have fulfilled these obligations, the state no longer has legal responsibility for these actions. Responsibility remains at international criminal law on anyperson involved if they are found to have violated any of the stated offences.

4.4. The definition confirmed The tribunal's approach in Kunarac was subsequently confirmed in Prosecutor v Kvocka, Kos, Radic, Zigic and PrcaP3 where it was decided that "the state actor requirement imposed by international human rights law is inconsistent with the application of individual criminal responsibility for international crimes found in international humanitarian law and international criminal law." Noting that Kunarac departed from the earlier cases and that it was persuasive before them in Kvocka, accordingly, it defined torture in the way set out in Kunara~.~" Further confirmation of the Kunarac definition has been provided by the tribunal on numerous occasions." For example, in Prosecutor v Krnojelac, 15 March 2002, when relying on the human rights law relating to torture, the trial chamber again highlighted the fact that it must take into account the structural differences which exist between that body of law and international humanitarian law. In particular, consideration must be given to the distinct role and hnction attributed to states and individuals in each regime.46However, this does not preclude recourse to human rights law in respect of those aspects which are common to both regimes. In that respect, the trial chamber

42 Analysis of this aspect of torturc is beyond thc scope of this articlc. Scc further, M. Evans 2002 and 2004, supra notc 3; C. dc Than and E. Shorts, supra notc 3. 4 3 Prosecutor v Kvocka, 2 Nov 200 1, IT-98-3011-T. 44 Ibid. at paragraphs 138 and 139. 45 In Prosecutor v M. Krnojelac, 15 March 2002, IT-97-25-T, at paragraph 187; Prosecutor v Naletilic and Martinovic, 31 March 2003, IT-98-34-T, at paragraph 497; Prosecutor v B. Simic ef al., 17 Oct 2003, IT-95-9-T, at paragraph 82; Prosecutor v Brdanin, 1 Scpt 2004, IT-99-3CT at paragraph 488. In Brdanin, the trial chamber noted that the definition in UNCAT relics on the notion ofhuman rights which is largely built on the premise that human rights are violated by states or govcmmcnts. It continucd that, for thc purposes of international criminal law which deals with the criminal responsibility of an individual, the trial chamber agrecd with and followed the approach of the Kunarac trial chamber: a position, it noted, confirmed in the ICC's statute. 4Vrnojelac, ibid., at paragraph 18 1.

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found the ECtHR's general reasoning and criteria compelling in assessing the gravity of the act of torture as well as its relationship with other less serious offence^.^'

5. Conclusion

Individual persons commit crimes. The underlying message from criminal law, including international criminal law, is that these individuals have some sort of free will, control and autonomy over their own actions and omissions and, on the basis of this, they make informed choices. As a result, they have to take responsibility for those choices when crimes are committed. They cannot, for example, blame the state. Indeed, under command responsibility, such individuals can be found responsible for the actions of their subordinates too.4R In the context of international criminal law this seems plausible and coherent. Individuals may have been formed and developed in the context of environments which could be said to restrict their choices, or even make "choice" seem meaningless. Yet international criminal law holds such individuals to account for their actions. Also, it is in accordance with views that the "international community cannot any longer allow claims and complaints of victims to be "filtered" through state channels and machinery"49but instead, it needs to place power in the individual's own hands. In depth analysis of the position of human rights law developments in this area is beyond the scope of this article. However, it has been said that: "we are increasingly being asked to examine all aspects of our public and private lives from the human rights perspective and it is the state that is being held to account for the failures of us a11."50As mentioned earlier, state failure to regulate individual behaviour can give rise to violations by those states of human rights law. This raises the huge topic of who should be responsible for an individual's actions. If the individual is responsible for his or her behaviour under international criminal law, is the state, under human rights law, increasingly seen to be responsible for that individual's behaviour?

47 In this case, the purpose to "humiliate" the victim, mentioned in Furundz& and in Kvocka again came to the fore. It is not explicitly dealt with by any of the principal international instruments prohibiting torture, nor is there a clear jurisprndential disposition towards its recognition as an illegitimate purpose. The trial chamber noted that there may be a tendency, particularly in human rights law towards the enlargement of the list of prohibited purposes but it stated that it must apply customary international humanitarian law which appl~edat the time the crimes charged were alleged to have been committed. " See P.V. Sellers, supra note 2 for analysis of this in the context of gendered violence. " A Cassese, supra note 1 at p. 450. See also R. McCorquodale "The Individual and the International Legal System" in M. Evans (ed) International Law (Oxford: Oxford University Press 2003). In a gendered context see J. Marshall Humanity Freedom and Feminism (Aldershot: Ashgate 2005). 50 M. Evans 2004, supra note 3 at p. 159.

Responsibility Beyond Borders: State Responsibility for ExtraterritorialViolations by Corporations of International Human Rights Law Robert McCorquodale and Penelope Simons* States routinely provide support and assistance to their corporate nationals in their global trade and investment ventures. While states may not intend to allow corporate nationals to violate human rights in their extraterritorial operations, by their actions or omissions, states may facilitate, or otherwise contribute to, a situation in which such violations by a corporation occur.This article investigates the extent to which the extraterritorial activities of transnational corporations (TNCs) that violatc intcrnational human rights law can givc risc to homc statc rcsponsibility. Thc analysis shows that home states of TNCs have obligations under international law in certain situations to regulate the extraterritorial activities of corporate nationals or the latter's foreign subsidiaries and can incur international responsibility where they fail to do so.

INTRODUCTION

[The British] Foreign Office isn't i n the business o f passing judgment o n t h e safety o f non-indigcnous drugs, is it? [It is] supposcd t o b c grcasing thc whccls o f British industry, n o t g o i n g around telling everybody that a British company i n Africa is poisoning its customers.'

In h i s

novel,

The Comtant Gardener, John Le Carr6 describes vividly the role of a

government knowingly allowing its c o r p o r a t i o n s to violate h u m a n r i g h t s in a n o t h e r state because t h e government's m a i n c o n c e r n is t o assist its corporations to make money. Thls is a powerful a r g u m e n t from s o m e o n e who worked for many years as a diplomat.' I n fact, m o s t of t h e g o v e r n m e n t s of industrialised states explicitly or implicitly acknowledge that one of their key foreign relations priorities is to assist their own corporations to 'win contracts in foreign m a r k e t s a n d lobby against regulatory and political barriers' in o t h e r state^.^ T h i s d o e s not m e a n t h a t a state i n t e n d s to a l l o w 'Robert McCorquodale is Professor of International Law and Human Rights at the School of Law, University of Nottingham, UK and Penelope Siinons is an Associate Professor at the Faculty of Law, University of Ottawa, Canada.We thank those who have provided us with help and advice during the writing of this article, especially Robert Cryer and Sarah Joseph. We are also indebted to the anonyn~ousreviewers ofthis article for their helpful comments and suggestions.

-

1 I. Le Carr6. The Conctant Gardew (London: Hodder and Stouehton. 2001), 497 (it is also a film with the same name, released in 2005). 2 John Lc Carrf notcs that thc rcality is worsc than what hc dcscribcs in his book: ibid 568. 3 UK Foreign and Commonwealth Office,'Strategic International Policy Priorities for the UK' in UK International Priorities: A Stratcgy for thc FCO (Dcccmbcr 2003), scction 4, scc http:// www.fco.gov.uk/Files/kfile/FCOStrategyFullFinal,O.pdf (last visited 5 March 2007). Similar statements have been made by, for examplt; the Australian government (Advancing the National ~

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Non-State Actors and International Law Robert McCorquodale and Penelope Simons

corporations to act in another state in a way that violates human rights. Nevertheless, a state, by its actions or omissions, may facilitate, or otherwise contribute to, a situation in which such violations by a corporation occur. As will be shown, this facilitation may range from the provision of financing and other services by export credit agencies to the negotiation and ratification of bilateral investment agreements that assist extraterritorial investment by corporate nationals. It also includes the failure by a state to prevent actions by its corporate nationals (including privatized state corporations) that violate human rights, both within and outside its temtory. The growth of transnational corporations ( T N C S )operating ~ across more than one state, has raised questions about how international law would deal with these entities. This is partly because the distribution of power and control of TNCs are arranged in ways that defy territorial boundaries, with a'parent' corporation being a 'national' in one state and its various subsidiaries being 'national< in those states where they operate.5Despite the wealth of docunlents, reports and academic literature that have suggested that corporations should have direct international legal liability for such violations, there is - as yet - no international human rights law to this effect.' This is due to the fact that international human rights law has developed to protect individuals from oppressive and abusive actions of the state. It thus imposes the legal obligations to protect human rights on states alone, and has not yet developed so as to regulate effectively the activities of corporations, or other non-state actors, which violate human rights in their extraterritorial operations.7 There are clear human rights legal obligations on a state to place an effective restraint on activities within its territory that violate human rights8 However, the reality is that for many states, particularly non-industrialised states, the economic power of aTNC operating within that state (the 'host state') is such that

4 5 6

7

8

Interest White Papn; 2005 at http://www.dfat.gov.au/ani/fo~word.htrnl (last visited 5 March 2007); the United States of America government (Strategic Planjw Fiscal Years 2004-2009 (2004) at http://www.state.gov/s/d/rm/rls/dosst~ (last visited 5 March 2007); and the Canadian Government (Opening the D o m to the World; Canadd Matket Accm Friotities 2006, at hq://www.intemational. gc.ca/tna-naclcimap-enasp)(last visited 5 March 2007). There is no common definition of TNCs (or even the acceptance of the use of that term) -see the discussion in R. McCorquodale with R. Fairbrother, 'Human Rights and Global Business' in S. Bottomley and D. Kinley (eds), Commercial Law and Human Rights (Aldershot: Ashgate, 2002). F. A. Mann,'Thc Doctrinc of Intcmational Jurisdiction Rcvisitcd Aftcr TwcntyYcars' in Collected Courses ofthe Hague Academy oflntmtional Law (Dordrecht: Martinus NijhoK 1985) 56. There is a considerable body of literature on this area: a few examples are: Norms on the Responsibilities of%nsnationa~ Corporations and Other Business Enterprises with Re,,ard to Human Rights, (2003) U N Doc E/CN.4/Sub.2/2003/12/Rev.2and Commentary on the Norms on the Responsibilities ofpansnational corporations and Other Business Enletprices with Regard to Human Rights, (2003) U N Doc E/ CN.4/Sub.2/2003/38/Kev.2; OECD, 'The OECD Guidelines for Multinational Enterprises', O E C D Derlamtion and Decisions on International Investment and Multinational Enterprises: Basic Z x t s (DAFFEIIME, 2000); A. Clapham, Human Rights Obligations ofNon-State Actors (Oxford: OUP, 2006); l? Alston (ed), Non-StateActors and Human Rights (Oxford: OUP, 2005); and S. Kees and S. Wright (eds), Human Rightr, Corporate Responsibility: A Dialogue (Sidney: Pluto Press, 2000). Note that the position may be different within international hun~anitarianlaw and international criminal law. For a discussion of this, scc R. McCorquodalc and R. La Forgia,'Taking Offthc Blindfolds:Torture by Non-State Actors' (2001) 1 Human Rights Law Review 189. See, for example, the terms of Article 2 of both the International Covenant on Economic, Social and Cultural Kights 1966 and the International Covenant on Civil and Political Rights 1966.

Non-State Actors and International Law Responsibility Beyond Borders

the host state may be unable or unwilling to control effectively the activities of that corporation^ or the host state may be prevented from doing so by other international treaty obligations, such as bilateral investment agreements. This means that, while the host state undoubtedly will be in breach of its human rights obligations if it does not act to prevent these human rights violations occurring, theTNC will remain unaccountable and unrestrained, and those whose rights are violated will be without an effective remedy. In contrast, the state where the headquarters of theTNC is incorporated or otherwise has its main centre of operations (the 'home state'), is usually an industrialised state,"' with the resources, power and legal interests to regulate in relation to the extraterritorial activities of the relevant corporation, if it chooses to do so." Few studies have explored in detail the extent to which the extraterritorial activities of TNCs that violate international human rights law can give rise to This article aims to demonstrate that these states have home state resp~nsibility.'~ significant international obligations under international human rights law in relation to some of the extraterritorial violations of human rights by their corporate nationals. A clarification of the law in this area may provide an incentive for home

9 See M. Ssenyonjo,'Non-State Actors and Economic, Social and Cultural Rights' in M. Baderin and R . McCorquodalc (cds),Economic, Social and Cultural Rights in Action (Oxford: OUP, 2007) 109 at 121-122, who notes that 'states where protection of human rights against violations by [nonstate actors] is most needed are often those least able to enforce them against [non-state actors] such as international financial institutions and TNCs - thc main driving agcnts of thc global economy, exercising control over global trade, investment and technology transfers - who possess much desired investment capital or technology'. 10 According to UNCTAD, the 100 largest non-financial TNCs account for 'l2%, 18% and 14% respectively, of the estimated foreign assets, sales and employment of all TNCs in the world'. 71 of those 100 are geographically concentrated in a few industrialised states (US, France, Germany, Japan and the UK), 50 of which are headquartered in the EU and only four in non-industrialised states. The largest TNC headquartered in a non-industrialised state is based in Hong Kong and is ranked sixteenth. In 2005,'the five largest TNCs accounted for almost half of the total foreign assets of the top 50 [TNCs]'. UNCTAD Wddlnvestment Report 2005: 7iknsnatioml Corporations and the Intmatiomlization 4 R G . D (New York and Geneva: United Nations, 2006) 15-17. 11 See C. Duflield, 'Multilateral Corporations and Workers' Kights' in S. Kees and S. Wright, n 6 above, 193. 12 N. J'agers, CorporateHuman R k h b Obliptions: In Search ofAccountability (Antwerp: Intersentia, 2002) indicates that '[tlhe law of state responsibility offers an interesting, yet under utihsed tool for addressing human rights violations resulting from corporate activities' (175). See also M. Sornarajah,'Linking State Responsibility for Certain Harms Caused by Corporate Nationals Abroad to Civil Recourse in the Legal Systems of Home States' in C. Scott (ed),TortuwasTort (Oxford: Hart, 2001). 491-512 and 0.Dc Schuttcr,'Thc Accountability of Multinationals for Human RightsViolations in European Law' in Alston (ed),n 6 above. Some commentators have examined the possibility ofhome state regulation as a means of addressing the problem of corporate accountability for cxtratcrritorial activity without examining thc qucstion ofa lcgal obligation to rcgulatc (scc S. Deva, 'Acting Extraterritorially to Tame Multinational Corporations for Human Kights Violations: Who Should "Bell the Cat"? (2004) 5 Melbourne JIL 37. and S. Deva, 'Human Rights Violations by Multinational Corporations and International Law: Where from Here? (2003) 19 ConnecticutJlL 1) or have not examined in detail state responsibility in relation to extraterritorial acts of corporate nationals (see D. Chirwa, 'The Doctrine of State Responsibility as a Potential Means of Holding Private Actors Accountable for Human Rights' (2004) 5 Melbourne JIL I), or have considered that approaching human rights issues through state responsibility would be an inadequate means to address accountability of corporations for these violations (S. Ratner, 'Corporations and Human Kights: ATheory of Legal Responsibility' (2001) 111Yale LJ 443).

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states to regulate corporate extraterritorial activities that violate human rights. It may also help to develop political will within the United Nations (UN) or other international fora for the development of an international legal framework of accountability for these corporation^.'^ Such a development would assist all states in complying with their international human rights legal obligations and enable the better protection of human rights of all people.

STATE RESPONSIBILITY AND INTERNATIONAL HUMAN RIGHTS LAW

Under customary international law a state will incur international responsibility for a breach of an international legal obligation, where the act in question can be attributed to the state.14This has been codified by the International Law Commission (ILC) in its Articles on the Responsibility of States for Internationally Wrongful Acts.15 Under these rules, a state is responsible for the actions and omissions of its executive, legislative,judicial and other state organs and officials, including police, military, immigration and similar officials." This is the position even where those actions are committed outside the scope of the state official's or organ's apparent authority.17 So if an act or omission can be attributed to a state and there has been a breach of an international legal obligation (under a treaty or customary international law) by that act or omission, then the state is responsible under international law. It is generally accepted that these rules are applicable to international human rights law? This is made clear in the ILCS Articles and Commen13 See for example, A. Reinisch, 'The Changing International Legal Framework for dealing with Non-State Actors' in Alston (ed), n 6, above, 37-89.81. Reinisch argues that the jurisprudence of European Court of Human Rights, which imposes indirect or vicarious liability on member states for the acts of non-state actors to whom they have delegated state tasks, gives the former a direct interest in regulating such non-state actors. 14 See, for example, C a i Claim ~ (France v Mexico) (1929) 5 RIAA 516. 15 International Law Commission, Articles on the Responsibility ofstatesfw Internationally Wrongful Acts, Report of the International Law Commission on the Work of its 53rd session, A/56/10, August 2001, U N GAOR. 56th Scss Supp No 10, U N Doc A/56/10(SUPP) (2001) (ILC Articlcs). Not all the ILC Articles can be considered to be customary international law, though most of them including those relevant to this article- have been adopted by international tribunals as reflective of customary international law: see H. Duffy, 'Towards Global Responsibility for Human Rights Protection: A Sketch of International Developments' (2006) 15 InterightsBulletin 104. Note that the rules set out in the Articles are considered by the ILC to be secondary rules of international law: seeJ. Crawford, The International Law Commission's Articles on State Responsibility: Introhction, Z x t and Commentaries (Cambridge: CUP, 2002) (ILC Commentaries) 74 [I]. 16 ILC Articlcs, Articlc 4. Scc also Immunity ofspecial Rapporteur oftbe Commission on Human Righb, ICJ Keports 1999, at [62], where it is stated that this represents a rule of customary international law. 17 &ire Claim n 14 above. 18 Cf A. Clapham, n 6 above, 318, See also the critiques of R. Pisillo Mazzeschi,'The Marginal Role of the Individual in the ILC's Articles on State Responsibility' (2004) 14 Italian YBIL 39, 47; D. BodanskyJ. R. Crook and E. Brown Weiss,'Invoking State Responsibility in theTwenty-First Century' (2002) 96 AJIL 798,809; and H. Charlesworth and C. Chinkin, Tbe Boundaries 4Intrrnational Law: A Feminist Analysis (Manchester: Manchester University Press, 2000) 148.

Nun-State Actors and International Law Responsibility Beyond Borders

taries.19 Indeed, the human rights treaty bodies have applied the general law of state responsibility to key aspects of human rights matters before them, both explicitly and, more often, implicitly2'

EXTRATERRITORIALOBLIGATIONS OF STATES UNDER INTERNATIONAL HUMAN RIGHTS LAW State obligations under international human rights law are not temtorially confined.The major international human rights treaties expressly extend state obligations both to individuals within a state's temtory and to those individuals who are subject to a state's j u r i s d i c t i ~ n .In ~ ~distinguishmg territory from jurisdiction, the Inter-American Commission on Human Rights, has stated: that the term 'jurisdiction' in the sense of Article l(1)is [not] limited to o r merely coextensive with national territory. Rather, the Commission is of the view that a state party to the American Convention may be responsible under certain circumstances for the acts and omissions of its agents which produce effects or are undertaken outside that statc's

19 ILC Commentaries n 15 above, 76 and its references to human rights cases, for example, 135-140 and 145-146. See also B. Simma and D. Pulkowski, 'Of Planets and the Universe: Self-contained Regimes in Intemational Law' (2006) 17 EJIL 488 at 525. 20 For example, the Inter-American Court of Human Rights held in Awas Tirgni v Nicaragua, I-ACtHR, I H R R (2001) [153]: '[alccording to the rules of law pertaining to the international responsibility of the State and applicable under Intemational Human Rights Law, actions or omissions by any public authority, whatever its hierarchic position, are chargeable to the State which is responsible under the terms set forth in the American Convention [on Human Rights]'. 21 R. Lawson,'Out of Control. State Responsibility and Human Rights: Will the ILC's Definition of the Act of State' Meet the Challenges of the 21st Century? in M. Castermans, F. van Hoof and J. Smith (eds),The Role ofthe Nation-State in the 2lst G,ntury,115, who notes that 'the European Coua of Human Rights has consistently applied the principles articulated in the ILC Draft Articles on State Responsibility,without, however, referring expressly to the Draft Articles'. See alsoJiers, n 12 above, 146. It should be noted, however, that in the development ofjurisprudence in this area the treaty bodies have not always distinguished clearly between the conceptsofattribution, the scope of a state's obligations and state responsibility: J. Cerone,'Out of Bounds? Considering the Reach of Intemational Human Rights Law' Center for Human Rights and Global Justice Working Paper Number 5,2006, NewYork School of Law, 26 at http://www.nyuhr.org/researchpublications.html (last visited 5 March 2007). 22 For example, see the American Convention on Human Rights 1969 (ACHR), Article l(1) and the European Convention on Human Rights 1950 (ECHR), Article 1.The lCESCR and the African Chartcr of Human and Pcoplcs' Rights (ACHPR) havc no such cxprcss jurisdictional clausc, though it is assumed that they would also apply to a state's jurisdiction: see the Committee on Economic Social and Cultural Rights (CESCR) General Comment No 8, The Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, U N Doc E/C.12/19')7/8,12 December 1997 at [7]. 23 Saldafiov Argentina (Report no 38/99) Inter-American Commission on Human Rights (11 March 1999) at [17]. The Conlmission has made it dear that this applies in relation to the application of both the ACHR and the American Declaration of the Rights and Duties of Man (American Declaration) - see Coanl et a1 v United States (Report no 109199) Inter-American Commission on Human Kights (29 September 1999) at 1371.

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Robert McCorquodale and Penelope Simons The European Court of Human Rights24 and the Human Rights Committee (HRC)25have made similar statements. This concept of jurisdiction gives rise to potential extraterritorial human rights legal obligationsfor a state ifjurisdiction can be established. Accordingly, states have been found by the H R C to have violated the International Covenant on Civil and Political Rights (ICCPR), and thus internationallyresponsible, wherea state'ssecurity forces capture, detain and torture aperson outside that state'sterritory,26and where the state confiscates its own national's passport at one of its consulates in another state.27 The H R C has also taken the position that Israel has obligations under the ICCPR in relation to individuals within its Occupied Territoriesz8and that Belgium has such obligations in relation to its forces operatmg as UN peacekeepers in SomahazyThis principle has been reiterated in the HRC's General Comment 31, where it states that: A State party must respect and ensure the rights laid down in the Covenant to anyone within thc powcr and cffcctivc control of that Statc Party, cvcn if not situatcd within the territory of the State Party. . . regardless of the circumstances in which

such power or effective control was obtained.30 Similarly, the Inter-American Commission on Human Rights has found that, if there is an exercise of control over individuals, it may be sufficient to find that a matter is within a state's jurisdiction, whether or not there is effective control of the territory in question.31The Commission has noted that '[iln principle, the inquiry turns not on the presumed victim's nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the state observed the rights of the person subject to its authority and ~ontrol'.~' Thus, in Alejandre v Cuba,33 where Cuban agents had shot down two civilian 24 Dmzd andJanousek v France and Spain (App no 1274718) (1992)14 E H R R 745 at [91]. In addition, under the ECHR, states can choose to extend the obligations under the Convention to their colon i c ~or othcr ovcrscas tcrritorics. 25 Whilst ArticleZ(1) of the ICCPR refers to both territory and jurisdiction, the HKC has clarified that the state's obligation extends to both individuals within a state's territory as well as to those who are not within the state's territory but who are subject to its jurisdiction: HRC, General Comment No 31(80) Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/U/Rev.l/Add.l3,26 May 2004 at [3]. 26 L6pez Burgos v Uruguay (Communication No. 52/79),views 29 July 1981at [12.3]. 27 Montero v Uruguay HRC (Communication 106/81), HRC views 31July 1983. 28 Concluding Observations of HKC on Israel (1999) U N Doc CCPR/C/79/Add.93 at [lo]. 29 Concluding Obscrvations of HRC on Bclgium (1998) U N Doc CCPR/C/79/Add.97 at [14]. 30 HRC. General Comment No. 31(801 . . Nature of the General Legal Obligation - Imposed on States parties to the Covenant, n 25 above, at [lo]. 31 See K. Wilde,'Legal "Black Hole"?: Extraterritorial State Action and International Treaty Law on Civil and Political Rights' .(2005) 26 Michigan - -IIL 739, 802; and d D. Cassel, 'Extraterritorial Application of Intcr-Arncrican Human Rights Instruments' in F. Coomans and M. Kamminga (eds), Extraterritm'al Application of Human Rights T~aties(Antwerp: Intersentia, 2004) 175-181,175. However, as shown here, the decisions of the Inter-American Commission are generally consistent with the jurisprudence on this issue ofother international human rights treaty bodies, including the European Court of Human Rights. 32 Coard et a1 v United States n 23 abovc, at [37]. Scc also Detainees at Guantanamo Bay, Cuba (Precautionary Measures), Inter-American Commission on Human Rights, 41 ILM 532 (2002). 33 Alejandre v Cuba, Inter-American Commission on Human Rights, Case 11.589, report 86/99 (29 September 1999).

-

Non-State Actors and International Law Responsibility Beyond Borders aircraft over international waters killing all four pilots, the Commission found 'conclusive evidence' in the circumstances,that the victims were under the authority and hence subject to the jurisdiction, of the Cuban agents.34 The European human rights supervisory bodies have generally taken the same approach. For example, in Loizidou v Turkey the issue raised was whether Turkey could be rcsponsible under the ECHR f o r t h e illegal seizure of property by the authorities in the unrecognized Turkish Republic of Northern Cyprus (TRNC).35 The European Court of Human Rights held that the applicant fell within the jurisdiction of Turkey, which could be held responsible for the acts of the TRNC.36 The Court decided that state res~onsibditvcan arise where a state exercises effective control as a consequence of lawful or unlawful military action, and that the 'obligation to secure . . . the rights and freedoms set out in the Convention, derives from the fact of such-control whether it be exercised directly, through its armed forces, or through a subordinate local administrati~n'.~' Apart from the decision in Bankovit v which has been widely critici~ed:~subsequent jurisprudence of the Court has supported this broad concept ofjurisdiction. For example, in both b a l m v ~ r k eand ~ Issa ~ ~v ErkeX4' ) the Court found Turkey responsible under the E C H R for the extraterritorial acts of Turkish security forces (in Kenya and in Iraq respectively). Indeed, the Court stated in Issa that temporary effective overall control of only a particular area in question was

34 ibid at [25]. For a full discussion of the jurisprudence on the extraterritorial application of the American Convention and the American Declaration, see C. Cerna, 'Extraterritorial Application of the Human Rights Instruments of the Inter-American System' in F. Coomans and M. Kamminga (eds),n 31 above, 141-174. 35 The statehood of theTKNC was only recognised byTurkey, and the U N Security Council had passed binding resolutions calling on 21stat& not to.recogn,se it on the basis that k had obtained its status through thc illcgal usc of forcc byTurkcy and was bcing maintaincd byTurkish forccs UNSC Kes 541 (18 November 1983) and UNSC Kes 550 (11 May 1984). 36 Loizidou vTurkey (Merits) (App no lS18/89) (1997) 23 E H R R 513 1561. 37 Loizidou v7urkey (Preliminary Objections) (App no 15318189) (1995) 20 E H R R 99 [62]. This decision was confirmed in Cyprus vTurkey (App no 25781194) (2002) 35 E H R R 30. 38 Bankouiiv Belgium (App no 52207/99) (2002) 41 ILM 517. In that case, a claim was brought against NATO with respect to the bombing of RadioTelevision Serbia during the Kosovo intervention. Thc Court hcld that NATO forccs had insuficicnt control of thc tcrritory in qucstion for thc applicants to be considered within their jurisdiction because the Court interpreted 'jurisdiction' under the ECHR to cover only instances where there is the exerciw of territorial control (by military occupation) and where actions occurred with the consent or acquiescence of the territorial state, or if there is an incidental exercise ofjurisdiction (such as over consular staffor ships). 39 Scc, for cxamplc, A. Riith and M.Trilsch,'BatlkoviivBelgium' (2003) 97 AJIL 171,172,M. Happold, 'Bankovic v. Belgium and theTerritoria1 Scope of the European Convention on Human Rights' (2003) 3 H R L R 77 and R. Lawson,'The Concept ofJurisdiction in the European Convention on Human RightS in I?J. Slot and M. Bultcrman (cds), Globalisation andJurisdiction (Lcidcn: Kluwcr Law International, 2004) 201. One of the key grounds for criticism was that the Court in that case conflated the law on jurisdiction under general international law (which deals with entitlements to act) with the question of responsibility arising out of a breach of human rights obligations: see M. Scheinin,'Extraterritorial Effect of the International Covenant on Civil and Political Rights' F. Coomans and M. Kamminga (eds) n 31 above, 73-81,79-80. 40 calattv lurkey (App no 46221199) ECHR, 12 March 2003; reaffirmed by the Grand Chamber (2005)44 ILM 1058. 41 Issa and Others v Turkey (App no 312321196) ECHK 16 November 2004.

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sufficient to bring individuals present in that area within the jurisdiction of the controlling stateP2 Thus, the jurisprudence of the international human rights treaty bodies makes clear that persons can be 'within the jurisdiction' of a state acting extraterritorially. A state can be found to be in violation of its obligations under international human rights treaties for actions taken by it extraterritorially,in relation to anyone within the power, effective control or authority of that state, as well as within an area over which that state exercises effective overall control." These conclusions are supported by decisions of the International Court ofJustice (ICJ). In its Advisory Opinion on the Wall it stated that Israel had obligations under the ICCPR, ICESCR and the Convention on the Rights of the Child (CRC) in relation to the occupied Palestinian territories and that the ICCPR was 'applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory'.44This position was confirmed by the ICJ in its decision in Democratic Republic ofCongo v Uganda, in finding that the ICCPR, the CRC and the African Charter on Human and Peoples' Rights (ACHPR) all applied in relation to Uganda's actions within the territory of the Democratic Republic of ~ o n ~Indeed, o . ~in~this latter case the Court went further in stating that 'international human rights instruments are applicable in respect of acts done by a state in the exercise of its jurisdiction outside its own territbry, particularly in occupied territ~ries'.~~ In reaching this conclusion, the ICJ is determining that the obligations of all states (and not only occupying powers) under all int&national human rights instruments (to which a state is a party) - and, necessarily, all human rights that are part of customary international law4' - are applicable in relation to the acts of a state outside its territory. This obligation is only limited by the phrase 'in the exercise of its iurisdiction'. which. as seen above. concerns all actions in relation to anyone within the power, effective control or authority of a state and does not d e ~ e n don the acauiescence of the territorial state. Having established that states have extraterritorial human rights obligations in certain circumstances, the question arises as to whether, and if so, in what circumstances, states have extraterritorial obligations under international human rights law in relation to the acts of corporate nationals.

42 ibid. In that case, the Coua ultimately found there was i n ~ ~ c i e evidence nt to substantiate the claim that Turkish forces were operating in the area in question: at [tl]. It also rejected the view in Bankovit that the o~erationof the ECHR was limited to the territorv of state ~artiesto the ECHR: at [74]. 43 This extraterritorial application of human rights would apply in relation to all types human rights economic, social, cultural, civil, political and collective - that a state is legally obhged to guarantee n 37 above and Dmcmtic Republic $ & g o v Uganda (see below), under a meaty: see Cyprus v 7+, where the ICI held that the ACHPR and the CRC a~olied .. extraterritoriallv,even though both indude a widc rangc of cmnormc, social and culrural right\ 44 Advisory Opinion on fhr I.efal Curncq~rmccton thc Conctrirctton ofa Wall in the Ornrpied I'alestinian7hr1tory (2604)43 ILM 1009 aF [107-1131. 45 Armed Activities on the 'lirritory of the Congo (Democratic Republic of the Congo v Uganda), (Merits) (2006) 45 ILM 271 at [217]. 46 ibid at [216]. Cerone, n 21 above, 8 notes, however, that the case 'provides very little guidance as to what constitutes an act "done by a state in exercise ofits jurisdiction"'. 47 See further below.

513

Non-State Actors and International Law Responsibility Beyond Borders STATE RESPONSIBILITY AND THE EXTRATERRITORIAL ACTS OF CORPORATE NATIONALS

The general law of state responsibility provides for the possibility of attribution to a state for the acts committed bv its corDorate nationals in violation of internat i o n a l l a w giving rise to i n t e r n a t i o n a l responsibility in t w o situations?'

First,

where a state empowers a corporation to exercise elements of public authority;49 second, where a corporation acts on the 'instructions of, or under the direction or control of', a state.50In adhtion, where the state through aiding and assisting corporate activity is complicit in the commission of an internationally wrongful act committed by another state or by the corporation itself, then the state will be internationally responsible? In all of these cases, such acts will be attributable to the state even where they are committed outside the territory of that state.

Corporations exercising elements of governmental authority

The conduct of a corporation is not primafacie attributable to a state under general international law, even where such corporation is wholly owned by the state or the state has a controlling interest in it?' Yet it has long been the case that there has been attribution to a state of the acts of private entities that are exercising public or governmental functions." Such attribution has become even more necessary with the growth in privatisation of state entities that retain some public funct i o n ~ ?Hence ~ the ILC Articles express the position as follows: The conduct of a person or entity which is not an organ of the State. . .but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular in~tance.'~ For there to be attribution to the state, the conduct by the corporation must relate to 'governmental activity and not other private or commercial activity'.5" This is

48 Though the acts of non-state actors are - in general - not attributable to a state: ILC Commentaries, n 15 above, 91 at [3]. The 1LC did expressly delete an article that would have provided that the acts of non-state actors could never be attributed to a state: N. Jagers, n 12 above, 1455. The ILC indicates that their Artides relevant to these situationsrepresent customary international law - [LC Commentariesn 15 above, 77-ID, 145-151. 49 ILC Articles ibid, Article 5, ILC Commentaries ibid, 100.There is also the possibility of a corporation exercising public authority in the 'absence or default of a state' (ILC Articles, Article 9) but this possibility is not explored here as it would be highly unlikely to arise. 50 [LC Articles ibid, Article 8. 51 ibid, Article 16. 52 ILC Commentaries n 15 above, 110[1] and 112[6]. 53 Scc thc discussions at thc Lcaguc of Nations Confcrcncc for thc Codification of International Law 1929, referred to ibid, 100-101at [4]. 54 See A. McBeth,'Privatising Human Rights: What Happens to the State's Human Rights Duties when Services are Privatised? (2004) 5 MelbourneJIL 133. 55 ILC Articles n 15 above, Article 5. 56 ILC Commentaries n 15 above, 101at [5].

514


Robert McCorquodale and Penelope Simons consistent with the developments in the law of state immunity." Governmental authority would seem to include a wide variety of public functions, from running prisons, health and education fa~ilities;~ to private airline corporations having delegated immigration or quarantine power59and a corporation having a role in the identification of property to be expropriated by the state.60The key factor for attribution is the empowerment to exercise governmental authority and not the degree of ownership of the corporation by the state.61 The extraterritorial activities of AWB Ltd, an Australian corporation provide an example of this type of situation. AWB was a government agency - the AustralianWheat Board - with, inter~lia,the sole responsibility for the marketing and export of Australian wheat around the world and, on being privatised, it retained this power.62AWB was active in the Iraqi Oil for Food programme managed by the UN,63being the largest supplier of food to that programme.64The investigation into that programme led to, inter alia, allegations that AWB was involved in the bribing of Iraqi officials in order to sell Australian wheat, contrary to United Nations resolutions and with clear impacts on the human rights of Iraqis, such as the right to f0od.6~These allegations were found to be substantiated both by a Royal Commission and by an Australian court but without expressly deciding whether some of the actions of AWB were attributable to the Australian govemment.hhThe situation of possible attribution to a state could be the same for many other privatised government entities. Adifferent examplearisesfromtheaaivitiesofthoseExport Credit Agencies (ECAs) of industrialised states that are not government organs but are separate legal entities? 57 O n state immunity generally, see H. Fox, The Law $State lmmunity (Oxford: OUP, 2002). 58 See McBeth, n 54 above, where he notes that the primary obligation to ensure accessibility to health and education services, for example, rests with the state, even after privatisation. 59 This is an cxan~plcgivcn by thc ILC: ILC Commcntarics n 15 abovc, 100 at [2]. 60 Hyatt lnternatio~lCorporationv Iran (1985) 9 Iran-USCTR 72,88-94. 61 ILC Commcntarics n 15 abovc, 101at [3]. 62 See Wheat Marketing Act 1989 (Commonwealth of Australia). 63 The U N Oil for Food Progran~mewas established by UNSC Kes 986 (14 April 1995) U N Doc S/ RES/986. 64 It supplicd $US2.3billion of food to thc prograrnmc: scc thc Final Rcport ('Manipulation of thc Oil-for-Food Programme by the Iraqi Kegime') of the Independent Inquiry Committee into the United Nations Oil-for-Food Pmgramme, 269 at http://www.iicoffp.org/documents/IIC%20 Fina1%20Rcport%20270ct2005.pdf (last visitcd 5 March 2007). 65 The Independent Inquiry concluded that AWB provided more than 14% of illicit payments to Iraqi officials in connection with humanitarian purchase under the programme (ibid 269). 66 An Australian Royal Commission, chaired byTerence Cole, investigated these allegations (within narrow terms of reference that prevented them considering closely any attribution to the Australian government) and reported on 24 November 2006: see http://www.ag.gov.au/agd/www/ UNoilforfoodinquiry.nsf (last visited 5 March 2007). During the course of the Commission's inquiry thc Fcdcral Court of Australia (FCA) hcard a casc in rclation to documcnts rcqucstcd by the Commission from AWB: AWB Limited v Cole (No51 [2006] FCA 1234, in which the Court held that the documents 'indicate[d] clearly that AWB knew that paying inland transportation fees to Alia was a means of making payments to the Iraqi Government. This plan was concealed from the United Nation< at [225]. 67 For example, the ECAs of the UK and the US (the Export Credits Guarantee Department (ECGD) and the Export Import Bank respectively, are divisions of the government, while the ECAs of Canada and Australia, are corporations which are wholly owned by their respective governments: see 0.Can and S. L. Seck,'The Legal Obligations with Respect to Human Rights and Export Credit Agencies' ECA-Watch, Halifax Initiative Coalition and ESCK-Net, Final Discus-

Non-State Actors and international Law Responsibility Beyond Borders

since 'dofficially-supported ECAs are regulated under national laws, regulations or chartersthat givetheECAtheauthority to perfomtheir functions'!' Suchagencieshave duties to support and develop, directly and indirectly trade and extraterrit&al investment opportunities for corporate nationals. In fulfdling these duties, ECAs will often engage in activitiesin other states, such as participating in government missions abroad to facilitatepartnershipsbetween home and host state corporations,or by maintaininga presence in other states to develop business opportunities for home state corporate nationals or to provide key market intelligen~e!~Where in the course of such activities a n ECAviolates human rights, such as, for example, breaches of the right to privacy in their intelhgence gathering, then the activitycould be attributed to the state, giving rise to internationalresponsibility. In these types of cases, the extraterritorial activities of corporate nationals empowered with governmental authority, can be attributed to the state. Where such activities violate international human rights law. the state will incur " international respoqsibility, even in situations where the corporation exceeds its authority7'

Corporations acting under the instructions, direction or control of the State

Where a corporation is not exercising elements of governmental authority, or cannot be shown to be doing so, then its activities may be attributed to the state if it is 'acting on the instructions of, or under the direction and control of' a state." Any conduct of corporations in these instances will only be attributable to the state where the activity in question was directly part of the state instruction or control and not where it was only incidental to it." However, in situations where a corporation is acting under the control of the home state and has ignored or contravened particular instructions, its acts will still be attributable to the state." Whether the conduct is in fact attributable to the state will depend on the extent of the state's control over the cor~oration'sextraterritorial activities. The ICJ established a test for control over non-state actors acting extraterritorially in Nicaragua v United States ofAmerica." In that case, the US had, interalia, financed, trained, supplied and equipped the contra, who were an armed opposition group opposed to the Nicaraguan government. The ICJ decided that, while the US

68 69 70 71 72 73 74

sion Paper, 4 June 2006 at http://www.halifaxinitiative.org/index.php/projects/699 (last visited 5 March 2007). ibid5 (and for a full discussion of thc attribution of conduct of ECAs to thc statc, scc 6-10). See for example, Export Development Canada, Annual Report 2005, 33-35 at http:// www.edc.ca/english/docs/2005annualreportpdf (last visited 5 March 2007). ILC Articles n 15 above, Article 7. This is also consistent with the basic premise of attribution in Article 3, that a state cannot rely on its own law to avoid international responsibility, as discussed abovc. ibid Article 8. The ILC comments that the words 'instructions','direction' and 'control' are disjunctivc and thcrcforc it is sufficient to provc any onc of thcni: scc ILC Commcntarics n 15 abovc, 113 at 171. ibid 110 at [3]. ibidll3 at [a]. Military and Paramilitary Activitim in and against Nicaragua (Nicaragua v United States ofAmericaj (Mer~ts)[I9861 ICJ Kep 14.

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could be held responsible for the particular acts of financing, training, etc, of the group, and that therefore some of the acts of the contras were attributable to that state, there was insufficient evidence to find that the US 'exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf [and thus] of the acts contrary to that the United States directed or enforced the human rights and humanitarian law' as Nicaragua had alleged." The Court held that, even if the US participation in such acts was 'preponderant or decisive', it was still insufficient for the general attribution of the acts of the contra' to the US.76 The ICJS test in the Nicaragua case has been criticised for establishing such a high threshold for a finding of control of non-state actors by a state." However, this test was upheld by the ICJ in its 2007 decision on the application of the Genocide Con~ention.~' A lower threshold test for control was applied by the European Court of , ~relation to the attribution of conHuman Rights in Ilascu v Moldova and R M ~ s i ain duct of a Moldovian separatist regime (the MRT) to Russia The Court considered that the necessary degree of control was shown in this case where Russia had provided political and military support to the MRTand the latter remained 'under the effective authority, or at the very least the decisive infuence, of the Russian Federation','' even though " the Court did not decide that Russia was in effective control of the Transdniestrian region. This seems to indicate that the Court is not requiring a high degree of effective control (and certainly not territorial control) for it to find that the actions of non-state actors in another territory can be attributed to a state in such a way that a state is considered to have jurisdiction over such actors and, hence, has extraterritorial obligations under the ECHR.~' It is hard to imagine circumstances where a state would exercise the level of control required in la.&, let alone that required by the ICJ in Nicaragua, over a corporate national except, perhaps, in rare cases with respect to wholly state-owned corporations?' The requirement of Specific instructions or directives aimed at the comrnission of specific acts' to show effective control,83 suggests, at least in relation to 75 ibid at [lo91 and [115]. 76 ibid. Morc rcccntly, in Democratic Republic of Congo v Uganda, thc ICJ found Uganda had rcsponsibility for its assistance and control of forces in Congo: see Armed Activities on theEm'tory ofthe Congo (Democratic Republic ofthe Congo v Uganda), (Merits), n 45 above, 116 at [164]. 77 See, for example, D. Meikerge Chinva, rt 12 above, 34. 78 Case Concerning the Application ofthc Convention on thr Prevention and Punishment 4 t h Crime ofcenoride (Bosnia and Hemegovim v Serbia and Montenegro), (Judgment) 2007 [398407] at http://www. icj-cij.org/icjwww/idocket/ibhy/ibhyj~dgment/ibhyijudgment20070226frame.htm (last visited April 10,2007).See also M. MilanoviL,'StateResponsibility for Genocide' 17 EJIL 553,585-586. 79 Ilascu v Moldova and Russia (App no 48787199) ECHK 8 July 2004. 80 ibid at [392] (emphasis added). 81 This case can be distinguished from decisions by the European Court of Human Rights in cases such as Loizidou, n 36 above, since there is no sense in which the members of the armed opposition group (thc MRT) could bc sccn as statc officials (as wcrc thc local administrators in thcTRNC) and there was no official recognition by Kussia of the MKT in contrast toTurkeyS recognition of the TNRC. In addition, the requirement of 'dfective control' in the earlier cases is reduced in relation to the non-state actor to'decisive influence' in the MRYs activities. 82 See N. Jigers, n 12 above, 171, who makes a similar comment in relation to the test set out in Nicaragua and adds: tAt most it can bc argucd that thc homc statc may bc hcld rcsponsiblc for explicitly supporting harmful corporate activities abroad'. 83 Prosecutor v Tadit, Case IT-94-1, International Criminal Tribunal for the former Yugoslavia (ICTY), Appeals Chamber, (1999) 338 ILM 1518 at [132].

Non-State Actors and International Law Responsibility Beyond Borders corporations, that there would be little difference between entities acting on the imtructions of the state and entities acting under the effective control of the state. Where a corporation acts on the instructions of the home state, there is no requirement for such acts to constitute governmental activity. The ILC gves the example of persons or entities who are 'employed as auxiliaries or are sent as "volunteers" to ncighbouring countries, o r who a r c i n s t r u c t e d to c a r r y out parti-

cular missions abroad'.84 This issue has become more ~rominentsince the beein" ning of the (illegal) action by the occupying forces in Iraq, where it became clear how many private corporations were contracted by the states involved to deliver a wide variety of services, from providing intelligence to re-creating state infrastructure to support such military action." Indeed, the investigations after the dlscovery of abuse in Abu ~ h r a i b(and elsewhere) haveihown that some of these abuses were committed by employees of private contractor^.'^ National law has so far proved generally ineffective in ensuring that such corporations in Iraq comply with the rules of international human rights and humanitarian laxa7Yet there is a possibility that cases brought before international human rights treaty bodies may have some chance of success if those bodies attribute the actions of the corporations to the state, on the basis that they are acting on the instructions of the state (which is highly probable in such a tightly controlled area)?' Where such acts are found to be attributable to the state. the treatv bodies will then need to determine the extent of power, effective control or authority exercised by the state or its agents over the area or over the victims, and whether it is sdcient to bring the victims 'within the jurisdiction' of the state. In the case of Iraq, it may be possible to prove sufficient power, effective control or authority, on the basis of the ICJ's decision in Democratic Republic of Congo v ugandasg'that human rights treaties may apply to a state's conduct even where that state's level of control falls short of that of an [Olccupying ~ower'.~" Indeed, a UK court, in applying a much narrower definition ofjurisdiction than that reflected in the case law of international human rights tribunals, found that an Iraqi who was killed in the custody of UK forces on a military base in Iraq was w i t h the jurisdiction of the UK for the purposes of the ECHR (and the UKS Human Rights Act 1998)."' 84 ILC Commentaries, n 15 above, 110[2]. 85 See, for example, S. Gibson.'Lack of Extraterritorial Jurisdiction over Civilians: A New Look at an Old Problem' (1995) 148 Military Law Review 114 and M . Schmitt, 'Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees' (2005) Chicago JIL 511.We are grateful to Melanie O'Brien for her direction to this area. 86 M. Bina, 'Private Military Contractor Liability and Accountability after Abu Ghraib' (2005) 39 John Marshall Law Review 1237. 87 The cases that have been brought in the US have shown the lack of effective nanonal laws to deal with such violations of international humanitarian and international human rights law: seeJ. Perlak,'The Military ExtratemtorialJurisdictionAct of2000: Implications for Contractor Personnel' (2001) 169 Military Law Revirw 92 and G. Schmitt, 'Amending the Military Extraterritorial Jurisdiction Act of 2000: Rushing to Closc an Unforcsccn Loophole' (2005) Thc Army Lawycr 41. 88 In Edit, n 83 above, the Appeals Chamber took the view that the 'degne ofconhol may. . . vary according to thc factual circumstances of thc c a d at [I171 (cmphasis in original). 89 n 45 above. 90 Ccronc, n 21 abovc at 8. 91 R (on the appliration of Al-Skeini and others) v Secretary of Statefor Defence [2004] EWHC 2911 (Admin), [2005] EWCA 1609.That case concerned the killing in Iraq of Iraqi civilians by British military forces. The Court of Appeal upheld the decision of the court of first instance that,

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Robert McCorquodale and Penelope Simons With the increasing use of corporations by states in their extraterritorial military activities, as well as in trade and other areas, there is clearly the possibility that the activities of these corporations will be attributed to the state. Where such activities violate international human rights law, the state will incur international responsibility, including those situations where the corporation contravenes in~tructions?~ Corporate activity and state complicity in internationally wrongful acts Article 16 of the ILC Articles provides that: A State which aids or assists another State in the commission of an internationally wrongful act by thc latter is intcrnationally rcsponsiblc for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.

According to the ILC, examples of situations where a state would be responsible for aiding and assisting, include 'knowingly providing an essential facility or financing the activity in question. . . facilitating the abduction of persons on foreign soil, or assisting in the destruction of property belonging to nationals of a third country'?3 In each case the assisting state must be aware that it is aiding or assisting in the commission of an internationally unlawful act, it must provide such aid or assistance in order to facilitate the act in auestion. and the act must constitute an internationally wrongful act if committed by the assisting state.% States have argued, for example, that providing military aid to the opposing state during an armed conflict, where that aid included chemical weapons, gives &e to state responsibility,95and the ICJ hinted at the possibility of state responsibility arising by complicity in Nicaragua v As noted above, ECAs routinely provide a full range of services to their corporate nationals to develop the latter's competitiveness in global markets. These services range from the provision of export credits and risk insurance to developing essential contacts in other states and participating in government trade missions

92 93 94

95 96

although the British Forces were an occupying power under international law, they did not exercise effective control over Basra at the time of the incidents. Only one victim, who was in military detention, was held to be subject to the jurisdiction of the UK forces and hence fell within the scope ofthe E C H R and the UKS Human Rights Act 1998.This case is on appeal to the UK House of Lords. ILC Articles, n 15 above, Article 7. This is also consistent with the basic premise of attribution in Article 3 that a state cannot rely on its own law to avoid international responsibility. ILC Commentaries, n 15 above, 148. ibid 149. To date there have been no examples In international human rights law where a case has been brought successfullyon the basis that one state has aided and assisted the violation of human rights by another state, though the situation in Ilascu v Moldova and Russia, discussed above, is a close analogy. This has been argued by Iran with regard to assistance by the U K to Iraq during the Iran-Iraq conflict in 1984- see ILC Commentaries n 15 above, 149-150 at [7]. Nicaraguav United States ofrlmerica, n 74 above a~ [114].


abroad." As discussed, the acts of ECAs can be attributed to the state in most cases. The hrect link between the provision of such services to assist the foreign direct investment of a state's corporate nationals, could be seen as a state aiding and assisting internationally wrongful acts. For example, a state or its ECA might provide financing (such as loans, political risk insurance or investment guarantees), which is essential to its c o r p o r a t e national's activities in a n o t h e r state. h s u c h a case, and where the host state allows the corporation or its subsidiary to operate within its territory in violation of its international human rights obligations (such as the protection of international labour rights)'' and the home state has the same international human rights obligations, then the home state could be found to be aiding and assisting an internationally wrongful act. Two cases in point are the Baku-Tbilisi-Ceyhan and Chad-Cameroon Pipeline projects. The financing for both projects has been provided by multilateral development banks, ECAs and other private banks and lenders." Both pipelines pass through states where human rights concerns have been raised in relation to, inter alia, freedom of expression, peaceful protest, fair compensation for expropriated property, the right to an effective remedy, compliance with international health and safety standards, non-discrimination and equal protection before the law.""' In addition, the legal frameworks for these two projects include agreements between the oil consortiums and the host state governments. These agreements contain stabilkation clauses that make the host governments liable to pay compensation where they make any regulatory changes that adversely affect the 'economic equilibrium' of the project10' and, inter aha, prohibit the host 97 Scc for cxamplc, Export Dcvclopmcnt Canada, Annual Rcport 2005, n 69 abovc. 98 The ILO has considered a fav cases involvingTNCs activitieswhere there has been a disregard for labour rights: see K. Beom Kim,'A Multilateral Contribution to Corporate Standards of Behaviour: The ILOi Declaration on Multinational Enterprises' in S. Tully (ed), Research Handbook on Corporate Legal Responsibility (Cheltenham: Edward Elgar, 2005) 319. 99 For the Baku-Ceyhan line the major lenders included the International Finance Corporation (IFC), the European Bank for Reconstruction and Development, and ECAs from the UK, US, Japan, France, Italy and Germany: see http://www.baku.org.uk/ and http://www.eca-watch.org/ problenis/oilgasmining/btc/indexfinance.htn(last visited 5 March 2007). The UKB ECGD provided export credit guarantee support for a USD $150 line of credit to the UK companies involved in the project: see ECGD News at http://www.ecgd.gov.uk/index/newshome. htm?id=5932 (last visited 5 March 2007). The financing for the Chad Cameroon Pipeline was provided by the International Bank for Reconstruction and Development, the IFC, and ECAs from the US and France and the African Export-Import Bank, among others: see Amnesty International, 'Contracting Out of Human Rights: The Chad Cameroon Pipeline Project' London, September 2005, 26 at h t t p : / / w e b . a m n e s t y . o r g / l i b r a r y / I n d e x / e n ~(last visited 5 March 2007). 100 See Amnesty International,'Human Rights onThe Line: The Baku-Tbilisi-Ceyhan Pipeline Projcct' London, May 2003, at http://www.amncsty.org.uk/contcnt.asp?Catcgo~ID=l012 (last visited 5 March 2007) and 'Contracting Out of Human Rights: The Chad Cameroon Pipeline Project' hid. For more information on the human rights concerns raised by the Baku Ceyhan pipeline see also the variety reports of fact-finding missions of the Baku Ceyhan Campaign to (last the pipeline areas in each of the three host states at http://www.baku.org.uk/missions.htn~ visited 5 March 2007). 101 ibid 11 and 21-22 respectively See also T. E. Lawson-Remer, 'A Role for the International Finance Corporation in Integrating Environmental and Human Rights Standards into Core Project Covenants: Case Study of the Baku-Tbilisi-Ceyhan Oil Pipeline Project' in 0. De Schutter (ed), Tansnational Corporations and Human Rights (Oxford: Hart, 2006) 393,41Wll.

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Robert McCorquodale and Penelope Simons governments from applying certain labour standards to the consortium members.")' All the agreements give the consortium members a right to take the respective host states to binding arbitration to seek compensation, even where regulatory measures are brought in or applied for the purpose of protecting human rights.'" The legal framework for these projects therefore creates significant disincentives for the host governments to legislate to protect human rights or to comply with any applicable international human rights obligations. The consortium members of the Baku-Ceyhan project'04have now signed a legally binding agreement to ensure that the investor agreements are not interpreted to prevent the host states from protecting human rights through regulatory measures.'05 However, the international legal status of this undertaking is unclear'oh and, in any event, the agreement does not address other human rights issues raised by the project, such as compensation for expropriation of private land and 'monitoring and reporting mechanisms for human rights violations in the vicinity of the pipeline'.'o7 Therefore, states which have provided financial backing for these projects through their ECAs to corporate nationals involved (such as BP and Chevron), may be found to be complicit in a host state's internationally wrongful act (ie a violation of its human rights obligations)in relation to respecting and protecting the international human rights of persons affected by the consortium activities. A home state may also be found to be complicit in the extraterritorial activities of corporations themsdves, and thus incur international responsibility in other circumstances.While the ILCS Articles deal only with the responsibility of states, they do not exclude the possibility of other actors invoking responsibility or incurring responsibility.108It is now established that individuals can incur international responsibility for a growing number of international crimes.'09 Moreover, it has been convincingly argued that corporations and other business entities have obligations under international law not to commit international crimes and therefore can incur international responsibility for complicity in, and commisv

102 Thus, for example, in its Host Government Agreement for the Baku pipeline, theTurkish governmcnt is prcvcntcd from rcquiring any consortium mcnibcrs to comply with labour standards 'that i) exceed those international labour standards or practices which are customary in international Petroleum transportation projects, or ii) are contrary to the goal of promoting an efficient and motivatcd workforcc': Amnaty International, 'Human Rights on thc Linc' n 100 abovc, 1617. See also 'Contracting out of Human Kights'n 99 above, 24. 103 ibid, 14 and 22 respectively. 104 The consortium members include Amerada Hess, AzBTC, 131: Chevron, ConocoPhillips, Eni, INPEX, Itochu, Statoi1,Total andTPAO, ofwhich BP is thelargest stakeholder see BTC Co. partners (last at http://www.bp.com/n~anagedlistingsection.do?categoryId=9OO7998&contentId=710 visited 5 March 2007). 105 'Contracting out of Human Rights'n 99 above, 11. 106 See Lawson-Rcmer, n 101above, 417-420, where she discusses the significanceof this undertaking and two other documents signed by the host governments (a security protocol and a joint statement addressing human rights concerns) but questions their status under international law and notes that 'the legal value courts or arbitrators would attach to the three documents remains an opcn qucstion'. 107 Amnesty International, 'Baku-Tbilisi-Ceyhan Pipeline Project - November 2003 Update' at http://www.amnesty.org.uk/content.asp?Catego~ID=l0128 (last visited 5 March 2007). 108 See for example, Pisillo Mazzeschi, n 18 above. 109 See for example the crimes set out in the Rome Statute of the International Criminal Court (adopted I7July 1998, entered into force I July 2002) 2187 UNTS 90.


sion of, acts that constitute international rimes."^ Claims have been filed against corporations in national courts for complicity in state violations of customary international law, which include acts such as genocide, forced labour, war crimes and slavery"' Therefore, where a home state aids or assists a corporation in the commission of, or in the latter's complicity i n , acts that, if c o m m i t t e d by t h a t home state would

constitute internationally wrongful acts, that state will incur international responsibility, at least where the aid or assistance 'contributed significantly to that act'."" So, where a home state aids or assists a corporation, for example, by supporting it in seeking 'regime change'll3 or through its ECA by providing loans, political risk insurance or investment guarantees, and the corporation then violates human rights that constitute international crimes, then that state can be considered responsible under international human rights law.'14 A. Clapham,'State Kesponsibility, Corporate Kesponsibility, and Complicity in Human Rights Violations' in L. Bomann-Larsen and 0.Wlggen (eds), Responsibility in World Business: Managing HayF.1 Side-Eflitts of Corporate Activity (Tokyo: Unitcd Nations Univcrsity Prcss, 2004) 50-81 at 68. Crawford and Olleson suggest, on the other hand, that while individuals may incur international responsibility in the criminal context there is no general international regime for dealing with the responsibility of non-state actors. In addition they maintain that 'so far there has been no development of corporate criminal responsibility in international law' since none of the three international criminal tribunals has jurisdiction to try legal persons: J. Crawford and S. Olleson,'The Nature and Forms of International Responsibility' in M. D. Evans (ed), InternutionalLaw (Oxford: Oxford UP, 2003) 445472 at 447.The Statute for the Speclal Court for Sierra Leone - (adopted 16 January 2002, entered into force 12 April 2002) 2178 UNTS 138, 145 - does not exclude jurisdiction to try corporate entities. Article 1 gives the court 'the power to prosecute persons who bear the greatest responsibility for serious violations of intemational humanitarian law and Sicrra Lconcan law' and no distinction is made betwen natural and legal persons. Nonetheless, as Clapham notes,'corporations can still be the bearer of international duties outside the context of international courts and tribunals. Lack of international jurisdiction to try a corporation should not ncccssarily mcan that thc corporation is undcr no lcgal obligation. Nor does it mean that we cannot speak about transnational corporations breaking international law' (57). Clapham ibid 58. See for example, the cases brought against French and Swiss banks for their activities during the Nazi Germany era: Bodner v B a n q u ~Pariba 111 Fed Supp 2nd series 939 (2000) and In re Holocaust Victim Assets Litigation 105 Fcd Supp 2nd scrics 139 (2000)-both caws scttlcd. Scc also S. Joseph, Corporatiom and 'Z?ansnational Human Rights Litigation (London: Hart, 2004). It has also been argued that state responsibility for complicity in acts of genocide requires a relatively low lcvcl ofintcnt: M. Milanovii, n 78 abovc, 574. 1LC Commentaries, n 15 above, 149 at [S]. Anvil Mining, an AustralianTNC operating in the Democratic Republic of the Congo, has admitted that it provided transport to the Congo military to deal with a minor revolt near to the corporation'smine and the Congo military then allegedly (last visited 29 killed many people: see www.abc.net.au/4comers/content/2005/s1384238.htm march 2007) - wc thank Adam McBcth for this information. For example, it is alleged that US corporations, such as ITT, were involved in the overthrow of the Allcndc Govcrnmcnt in Chilc and thc Unitcd Fruit Co mastcrmindcd a coup in Guatcrnala- scc K. Zipper, Politics and Ideology in Allende's Chile (Tempe, AZ: Arizona State University, Center for Latin American Studies, 1989) 169-176, E. Kaufman, Crisis in Alknde's Chile: New l'erspectives (New York: Praeger, 1988) 20-24, and S. Schlesingerand S. Kinzer, Bitter Fruit: the Untold Story oftheAmerican Coup in Guatemala (London: Sinclair Browne, 1982) 9W97. A. Clapham,'State Responsibility, Corporate Responsibility, and Complicity in Human Rights Violations' n 110 above, 68. In addition, as Nollkaemper notes, a limited number of acts can be attributed twice and thus to lead to concurrent state responsibility and individual responsibility. 'These acts include planning, preparing or ordering wars of aggression, genocide, crimes against humanity, killings of protected persons in armed conflict, terrorism and torture':

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In order for the state to be held responsible for complicity in the above situations, it must be shown that the state knew that it was aiding or assisting in the commission of the wrongful act. Yet, where the assistance is provided by ECAs, constructive knowledge can be assumed where the agency maintains that it takes the human rights or social impact of a project into account in its decision-making or it is normally required to undertake assessments of, or investigations into, the human rights impacts of a particular project."5

HOME STATE RESPONSIBILITY AND THE FOREIGN SUBSIDLARIES OF CORPORATE NATIONALS

From this analysis it is clear that a home state may incur international responsibility for extraterritorial activities of a corporate national that violate international human rights where the corporation is exercising governmental authority or is acting under the instructions, direction or control of the home state. In addition, a state may be found to be internationally responsible for aiding and assisting an internationally wrongful act committed by a host state in relation to the activity of the former's corporate national or its subsidiary or where the home state is knowingly complicit in an international crime perpetrated abroad by a corporate national or its subsidiary. Yet, because corporations generally conduct extraterritorial operations through a subsidiary incorporated in a state other than the home state (ie the host state) the question arises whether, apart from the situations of complicity, a home state may be found to be internationally responsible for the acts of a corporate national's foreign subsidiary that violate human rights in another state. A home state may have an extraterritorial obligation to protect human rights, to the extent that it should exercise due diligence in relation to the acts of such foreign subsidiaries. see A. Nollkaemper,'Concurrence Between Individual Responsibility and State Rsponsibility in International Law' (2003) 52 ICLQ 615. 115 See Can and Seck n 67 above, 9, who note that '[tlhe social and environmental impact assessments that ECAs conduct of T N C activities and the resulting conditions that are applied in the loan agreements may represent an implicit acknowledgement of the ECAk due diligence obligations'. See also UK Export Credits Guarantee Department, GCDG'sBusiness Principles, December 2000, 6, at http://www.ccgd.gov.uk/ccgdbusprinciplcs.pdf (last visitcd 5 March 2007), which statcs that when considering supporting a project the ECDG will'look not only at the payment risks but also at the underlying quality of the project, including its environmental, social and human rights impacts' and will Scrccn applications for covcr to idcntify, and thcn analysc, any advcrsc or bcncficial environmental, social or human rights aspects of relevant projects'. The UK Minister for Trade, in his statement to Parliament.17 December 2003, said that the ECGDS decision to provide export credit guarantee support for a USD $150 line of credit for UK contractors involved in the Baku-Tbilisi Ceyhan pipeline, 'was made after a rigorous assessment of the risks associated with the project and a thorough review of the environmental, social and human rights impacts arising from the project': see ECGD News at http://www.ecgd.gov.uk/index/newshome/btc statementhtm (last visited 5 March 2007). See also Export Development Canada, Corporate Social Respowihility Report 2005, %9, which discusses the agency's analysis of the human rights impacts of projects at http://www.edc.ca/english/docs/csrannualrepor05.pdf (last visited 5 March 2007).

Nun-State Actors and International Law Responsibility Beyond Borders

Acts o f foreign subsidiaries and general international law

It has long been asserted that '[a] subsidiary is a separate legal entity and therefore necessarily distinct from its parent . . . as a matter of international law, parent and subsidiary are each subject to the exclusive jurisdiction of their respective state^]'."^ This view is largely based on the decision of the ICJ in the Bavrelorzd Zaction Case.'" However, that decision must be reviewed in light of both its own context - having been decided for the purposes of diplomatic protection in international law - and in light of subsequent developments in the understanding of corporate groups, including TNCs, away from the traditional concept of separate legal entities. State practice reflects a variety of approaches for dealing with 'the tendency of groups of companies to utilise their legal structure to avoid state regulation'.""here is a long-standing practice of some courts to look at the whole operation of aTNC, and not just its notionally separate parts, in order to bring a foreign parent corporation within the jurisdiction of a state. For example, the US 'has developed very broad theories of the unity or integration of the enterprise, of acting as "alter ego" or whatever other phrases may have been employed to establish that the foreign parent is in fact present, &dent or "found" in the United state^'."^ Likewise, the approach of the European Court ofJustice in competition cases has been to 'investigate the parameters bf the [corporate] group structure and the reality of the interrelationships within the grou~'.'~~' Moreover, states have extensive authority and capacity under international law to exercise prescriptive and adjudicative jurisdiction over the extraterritorial activity of corporate nationals."' In addition, where such corporation is a parent corporation, the home state is entitled under international law to regulate indirectly any wholly owned or controlled foreign subsidiaries by requiring the parent to impose on such subsidiaries a particular course of action or to include particular terms in any contract.lZ2There is now substantial state practice of extending national law to regulate the conduct of corporate nationals operating extraterritorially through foreign subsidiaries, such as in areas of competition law, shareholder and consumer protection, anti-bribery and corruption, and tax

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116 Mann, n 5 above, 56. See discussion in L. Dubin,'The Direct Application of Human Rights Standards to, and by, Transnational Corporation< (1999) 61 The Review ofthe Internatloml Commission of Jurists 35, and Crawford and Olleson, n 110 above, 448. 117 Case Conc~rningthe BarcelomTaction, Light andpower Co LId(SrcondPhare) (Belgium v Spain) [I9701ICJ Reports 3.42. 118 See J. Dine, The Governance of Corporate Groups (Cambridge: CUP, 2000) 65 and generally 37-66. CUP, 2005). and I. Dine, Companies, IntermtiomITade and Human Rkhts -. (Cambridge: . 119 ~ a & n, 5 above, 63. 120 Dinc, The Govermnceof - Corporate Groups, n 118 abovc, 56. According to Muchlinski, Ncw Zcaland courts have the power to order any entity in a corporate group'to pay the liquidator of an insolvent company the whole or part ofany or all the debts provable: l? Muchlinski, Multinational Enterprises and the Law (Oxford: Blackwell, 1999) 36-338. 121 See Mann n 5 above. 122 ibidat 62. Mann adds the caveat that the required action or terms should not conflict with thelaws ofthe host state. However, at least in relation to human rights, that is no longer considered a matter of domestic concern, required actions or terms which were consistent with a host state's international human rights obligations but inconsistent with a host state's laws would still be valid.

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Robert McCorquodale and Penelope Simons law.Iz3In relation to bribery and corruption, states have concluded treaties imposing obligations on them to regulate extraterritorial conduct of corporate nationals and their subsidiaries.124 More recently, national courts of a number of states have begun to 'pierce the corporate veil', or to examine the entire corporate group, to impose liability on the parent company (which is a corporate national) for the acts of foreign subsidiaries that constitute violations of international human rights law? This would seem to apply where there is effective central managerial control over a subsidiary by a parent within the sarneTNC entity. In this regard, it has been persuasively argued that: [IfaTNCisregardedas]aconglomerateofunitsofasingleentit y, eachunit performinga specificfunction, the function of the parent company being- to -provide expertise,technology supervisionandfinance. . . [thenif]injuries result from negligenc&nrespect of the parent company functions, then the parent company should be liable.'26 Therefore, the conceptual support in state practice for including the actions of a foreign subsidiary of a corporate national within the parameters of a home state's legitimate prescriptive and enforcement jurisdictional scope is considerable. Such practice proves that home states can, and in fact do, extend this jurisdiction to the extraterritorial activities of their corporate nationals and the latter's foreign subsidiaries in growing number areas of law. State responsibility for the extraterritorial effects o f corporate activities

Under international law each state has a general duty not to act in such a way as to cause harm outside its territory.l2' This includes actions causing transboundary environmental impacts where the state ought to have had control over the activities that led to these impacts.'2R There is growing support for the view that '[wlhere a 123 See Somarajah n 12 above. Muchlinski n 120 above, 336-337, notes that laws in France, Germany and the UK make directors of foreign parent companies potentially liable to creditors in cases of insolvency of domestic subsidiaries. 124 See for example the UN Convention Combating Bribery of Foreign Public Officials in International Business Transactions (Convention Against Corruption) 2003 (adopted 31 October 2003, entered into force 14 December 2005) (2004) 43 ILM 37. The Convention imposes obligations on states parties to establish laws and criminal sanctions with respect to the bribery offoreign public officials and officials of public international organisations (Article 16) and to extend liability (whcthcr criminal, civil or administrative) and sanctions to lcgal pcrsons (Articlc 26). 125 See, for example, the UK House of Lords decisions in Connelly v R'l Z [I9981 AC 854 and Lubbe et a1 v Cupeplc [2000] 4 All E R 268. See also the case law under the US Alien Tort Claims Act 1789 relating to the liability of corporations for violations of 'the law of nations', for example, Presbyterian Church of Sudan v 'lblisman Lnergy, Inr 244 F. Supp. 2d 289 (S.D.N.Y. 2001), Wiwa v Royal Dutch Petroleum Co 226 F.2d 88 (2d Cir 2000) and Doe v Unocal Gnp 248 F.3d 915 (9th Cir 2002). For a full discussion of both the UK and US case law cited above see S. Joseph, Corporations andTansnationa1 Human Rights Litigation (Oxford: Hart, 2004). 126 R.Meeran,'The Unveiling of Transnational Corporations: A Direct Approach'in M. Addo (ed), Human Rights Standards and the Responsibility (liansnational Corporations (The Hague: Kluwer Law International, 1999) 161,170. 127 See for example, 'l'he Rainbow Warrior (New Zealandv France) (ArbitrationTribunal) (1990) 82 ILR 449. 128 See, for example, Tail SmelterArbitratiorr ( U S v Cunada) 3 KIAA (1941) 1905.

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state knows that its national's activities will cause, or are causing, harm to other states or peoples, it is consistent with this [general] duty that it should prevent such harm','29 where the state can, in fact, control the impugned This general international legal responsibility of states is linked to obligations under international human rights law. International human rights law requires a state to t a k e measures

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control, regulate, investigate and prosecute actions by non-state actors that violate the human rights of those within the territory of that state.13' These actions by non-state actors do not have to be attributed to the state, rather this responsibility is part of the state's obligation to exercise due diligence to protect the human rights of all persons in a state's territ~ry.'~'Hence, states have been found to be in breach of their obligations of due diligence in relation to activities of corporations within their territory, because the acts or omissions by the state enabled the corporation to act as it did.'" This obligation of due diligence has an extraterritorial dimension. A state may be responsible for a violation of an international human rights treaty obligation where 'acts of their authorities, whether performed within or outside national boundaries. . . produce effects outside their own territory"34 and for 'the extraterritorial consequences of its intra-territorial decision^'.'^^ Specific examples of violations of this obligation include where a state tried a person in absentia (ie who is Somarajah, n 12 above, 507. Somarajah makes this assertion in relation to acts that violatejus cogens norms. SeeJigers n 12 above, 17C172, and C. Scott,'Multinational Enterprises and Emergent Jurisprudence on violations of Economic, Social and Cultural Rights' in A. Eide, C. Krause and A. Kosas (eds),Economic, Social and Cultural Rights: A Trvtbook (Dordrecht: Kluwer Law Intemational, 2nd ed, 2001) 563-595,587. See also I. Seidl-Hohenfeldem, International Economic Law (Dordrccht: Martinus Nijhoff, 1989) 15%160. Scidl-Hohcnfcldcrn maintains that dcspitc thc lack of a general rule there may be situations in which a state could be held responsible for the acts of its national cor~orations'for examde. the exDort tolerated bv the authorities of the home countrv. of goods, whosc salc in thc homc country is banncd on account of hcalth risks'. 130 Jeers n 12 above, 167, 'A situation of control can be taken to exist when the State has either the possible victim or the possible perpetrator within its jurisdiction: 131 See, for example, Efrisquez Rodriguez v Honduras, (1989) 28 ILM 294, Herra Rubio v Colombia (1611 1983), (1988) HRC Report, GAOK, 43rd Sess, Supp 40,190 [ll], ErgivErkey (App. 23818194) (1998) (2000), ECHR 13 Tune 2000. and Av UK (ADD 32 E H R R 388. Timurtas vTurkev, (ADDno 23531194) , ,. no 25599194 ) (1999) 27 E H R R 611. 132 Scc gcncrally A Clapham, Human Rkhtr in the Private Sphere (Oxford: Clarcndon Prcss, 1993) and s the Private sph& Using the ECHK to Protect the Kight A. ~ l a ~ h a m , ' ~ e v i s i tHuman i n g ~ i g h t in of Access to the Civil Court' in C. Scott (ed),Torture a~Torfn 12 above 513. This obligation of due diligence is part of the obligation to protect human rights, being within the three-fold responsibility on states to respect, protect and fulfil human rights: see, for example, the analysis by the CESCR in General Comment No 13 on the Right to Education, where the Committee states, at [46]: 'The right to education, like all human rights, imposes three types or levels of obligations on states parties: the obligations to respect, protect and fulfil. In tum, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide.' 133 See, for example, Young, James and Webster v UK (App no 7601176) (1982) 4 EHKK 38 (labour rights), Social and Economic Rights Action Gjntrrfor Economic and Social Rights v h'igeria, African Commission, Conlmunication No 155196 (2001) (pollution) 198544, and The Mayagna (Sumo) Awas 7i'ngni Community v Nicaragua, Inter-American Court of Human Rights Series C No 79 (31August 2001) (indigenous rights). 134 Loizidou v7urkey (Preliminary Objections) n 37 above at [62]. 135 S. Joseph, J. Schultz and M. Castan, The I n t m a t i o ~ lCovenant on Civil and Political Rights: Cases, Commentaryand Maten'als (Oxford: OUP, 2nd ed, 2004) 96.

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Non-State Actors and Interrzational Law Robert McCorquodale and Penelope Simons

not present in that ~tate),"~ allowed itsjudges to preside over the courts of another state,'37 and for actions in its dependent territories.13' The obligation to exercise due diligence with respect to the extraterritorial activities of corporate nationals is a necessary component of this obligation on a state, since without some form of extraterritorial regulation of corporate nationals, such entities 'could easily bypass the mandate of municipal law by transferring or relocating their business operations offshore where human rights obligations are less stringent'.139 Moreover, all states which have ratified the ICESCR have extraterritorial obligations, which include obligations in some circumstances to regulate the activities of their corporate nationals. It has been suggested that the obligation to protect under the ICESCR 'includes an obligation for the state to ensure that all other bodies subject to its control (such as transnational corporations based in that state) respect the enjoyment of rights in other countries'.140Thus where a corporate national operating abroad (through a foreign subsidiary) violates, for example, fundamental labour rights protected under the ICESCR'[i]t may be argued that states are under an obligation to regulate, investigate and even bring before the courts conduct of a transnational corporation under its home state jurisdiction where aS'thresholdof gravity" of human rights violations is at stake'.141 Indeed, as discussed above, because home states have some means to control the extraterritorial activity of foreign subsidiariesof corporate nationals, where a state has 'sufficient knowledge' of the human rights impact of such activity in the host state, the home state has a duty 'to prevent and mitigate the risk by adopting legislation to this end. A failure to do so would amount to a breach of the international obligation to exercise due diligence, for which international responsibility ariseS.14' It cannot reasonably be argued today that states do not know that their corporate nationals (or the latter's foreign subsidiaries) may engage in human rights violating activity in their extraterritorial operations. The negative impact of some extratemtorial corporate activity on human rights, particularly ecoIn addition, there nomic, social and cultural rights, is now well doc~mented.'~~ are an increasing number of investor and consumer campaigns in relation to extra-

136 Mbenge v Zaire (16177) HRC vicws, 25 March 1983. 137 Urozd andJanousek v 1:rance and Spain n 24 above. 138 Provided that state has applied the ICCPR to that dependent territory, expressly or (possibly)by implication - Kuok Koi v Portugal (025/00,9 IHKK (2002) 300, especially at [6.3]. 139 Dcva, 'Acting Extraterritorially to Tamc Multinational Corporations for Human Rights Violations: Who Should "Bell the CatV?n12 above, 49. 140 F. Coomans,'Some Remarks on the Extraterritorial Application of the International Covenant on Economic, Social and Cultural Rights'in F. Coomans and M. T. Kamminga (eds),n 31 above, 192. 141 ibid193. 142 Jagers n 12 above, 171-172. 143 See for example, ECOSOC, The Realization ofEconomic, Social and Cultural Rights: The Relationchip between theEnjoyment ofHumatr Rights, in particular, International LabourardTade Union Rkhts, and the Working Methods and Activities fliansnational Corporations, U N Doc E/CN.4/Sub.2/1995/11(1995). in particular at [58], [61-64]and [91]. Foreign direct investment in export processing zones (EPZs) has been associated with some of the gravest abuses of human rights, and in particular violations of fundamental labour rights: see ECOSOC, Human Rights PrinriplesforZansnational Corporations and Other Bu.~inrssEntqrires, Introduction, U N Doc E/CN.4/Sub.2/2001/WGG2/WPP1/Add.l (2002) [5] at http://wwwl.umn.edu/humanrts/introduction054142final.htd (last visited 5 March 2007).


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Responsibility Beyond Borders

territorial T N C human rights impacts abroad,'44 and of claims being brought in national courts against TNCs for egregious violations of human rights.145 Moreover, the UN Sub-Commission on the Promotion and Protection of Human %ghts' submission of the UN Norms on the Responsibility ofTansnationa1 to Human RightP6 to the U N Corporations and other Business Enterprises with Refard Human Rights Council has propelledthe dialogueon the humanrights implicationsof

T N C conduct to the forefront of global debate, to the effect that no industrialised state can claim ignorance in this regard. Indeed, most industrialised states encourage their corporate nationals to adopt and abide by voluntary codes of conduct when operatmg overseas. OECD states (which include most of the home states of the major T N C S ) ' ~ ~ have adopted the OECD GuidelinesfarMultinationalEnterprises,which encouragecorporate nationals to '[rlespect human rights of those affected by their activities consistent with the host government's international obligations and commitments'."* Although this is a lesser degree of knowledgethan that required for complicity,as discussed above, it is appropriate considering that the obligationto exercise due diligenceis an obligation to protect, requiring positive action by the state. At the very least, it can be asserted that states have constructive knowledge that corporate nationals may violate human rights standards in their extraterritorial operations in two sets of circumstances, thus engaging the state's obligation to exercise due diligence in relation to such activities. The first is where corporate nationals invest, or intend to invest, in confict zones, failed states or repressive regimes, and engage in a business relationship with host state governments or a non-state actor party to a civil ~ 0 n f l i c t . lIn~ ~these situations, host state governments may be 'unable or unwilling to prevent or stop grave violations of international human rights or humanitarian law, or [may be] themselves the perpetrators of the abuses [thus] TNCs are more likely to be implicated in the violations'.150

144 Scc for cxaniplc Maquila Solidarity Nctwork campaigns in rclation to thc abusc oflabour rights at http://www.n1aqui1asolidarity.org/(last visited 5 March 2007) and see also Human Kights Watch campaigns and reports on other violations of human rights by corporations at http://hrw.org/doc/ ?t=corporations (last visited 5 March 2007). See discussion of the 1999 investor campaign by the 'Taskforce for Churches and Corporate Responsibility (TCCR) and the Interfaith Center on Corporate Responsibility against Talisman Energy for its investment in Sudan at http:// topics.nytin~es.com/top/news/international/cou~~triesandterritories/sudan/i~~dex.html?query~ INTERFAITH%20CENTER%200N %20CORPORATE%20RESPONSIBILITY&field= org&match=exact (last visited 5 March 2007). See also the summary of the divestment campaign against Talisman Energy Ltd in relation to its involvement in Sudan in G. Gagnon, A. Macklin and P. Simons, 'Deconstructing Engagement: Corporate Self-Regulation in Conflict Zones Implications for Human Rights and Canadian Public Policy' (University of Toronto Public Law Kesearch Paper No.0447) at http://www.law.utoronto.ca/faculty.content.asp?itemPath=l/ 7/0/0/0&contentId=692 (last visited 5 March 2007) 30. 145 See discussion at n 125 above. 146 n 6 above. 147 See discussion at n 10 above. 148 OECD, 'The OECD Guidelines for Multinational Enterprises', n 6 above, Annex 1, 11. These Guidelines require home states to establish National Contact Points to promote and raise awareness of the guidelines, assistTNCs with implementation, and deal withTNCs where problems of non-compliance arise. 149 lnternational Council on Human Rights Policy Report, Beyond Voluntarism Human Rights and the Developing lnternational Legal Obligations ofCompaniu, February 2002,Versoix, Switzerland at 141. 150 G. Gagnon, A. Macklin and f! Simons, n 144 above, 11.

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Home governments are fully aware of the political risks involved in investment in these locations and routinely provide such information to corporate nationals.15' Indeed, there are instances where a state has taken some action (however ineffective) to prevent extraterritorial investment or to require disinvestment by corporations in these types of situations due to serious human rights The second situation in which states could be deemed to have constructive knowledge, and thus an obligation to exercise due diligence, relates to circumstances where the home state could be seen to be facilitating extraterritorial harm perpetrated by a corporate national (through its foreign subsidiaries)-perhaps a form of aiding and assisting. This would include where a home state of a TNC negotiates a bilateral investment treaty (BIT) with a non-industrialised state.'" These agreements are usually based on model agreements of the industrialised and economically powerful states, and create strong protections for its corporate national in~est0rs.l~~ At the same time, the key provisions of these

151 Seen 69 above and accon~panyingtext. 152 See, for example, the UK government's request to Premier Oil and British American Tohacco to cease investment in Burma, The Guaniian, 7 September 2003.23. The Canadian govemment allegedly attempted to dissuadeTalisman Energy from investing in Sudan in 1998. In 1999 when reports began to link oil exploration and development in South Sudan with egregiousviolations of human rights, the Canadian Government sent a fact-finding mission to investigate and hinted that sanctions might be implemented if the allegations were substantiated. Following the release of the Report of thc Canadian Assnsmcnt Mission to Sudan, which did find cvidcncc that oil cxploration was fuclling the war and could be linked to forced displacement and other grave violationsofhuman rights, the then Minister for Foreign Atfairs and InternationalTrade stated that 'Canada [did] not encourage private sector activity in Sudan'. However the only substantiveaction taken by the govemment was to requireTalismanto take a number of measures including the adoption of a voluntary self-regulation regime which'critin argued did little or nothing to address problems caused byTalismanS presence in Sudan': see G. Gagnon, A. Macklin and P. Simons, n 144 above, 31-32. 153 There are currently over 2,400 BITs in existence: see UNCTAD, Investor-State Disputes Arising From Investment Teaties: A Review (NcwYork and Gcncva: Unitcd Nations, 2005), 3. In addition, some corporate executiveshave served, usually on secondment, in high-ranking government positions, as part of trade or other state delegations, and so been directly part of state action and state knowledge. For example, a former vice-president of Cargill acted as the US negotiator on agriculture in the initial stages of the Uruguay Round negotiations before returning to work in the grain industry: see S. Murphy, TradeandFood Security: A n Assessment ofthe Uruguay Round A p e m m t on Agriculture (London: Catholic Institutc for Intcrnational Relations, 1999),11. Morcovcr, a study on thc composition of US trade advisory committees found that of the 111members of the three committees reviewed, 92 were'from individual companies and 16 from trade associations' compared with only two from labour unions: UNDP, Human Development Report 2002: Deepeniq Democracy in a Frap mented World (NewYork, Oxford: Oxford UP, 2002) 68. 154 The rationalisation for thc dcvclopmcnt of thc strong protcctions and rights forTNCs containcd in BITs has been premised on the idea that such investment is necessary for, or will entail, economic development and therefore merits protection. This presumption is now being called into question: see M. Sornarajah, The International Law ofon Forekn Investment (Cambridge: CUP, 2nd ed, 2004) 262. It has been noted that '[wlhether FDI contributes positively to development often depends on the ability of the national govemment to adopt a sound and equitable regulatory framework' (Oxfam. TheEmperor's h'ew Clothes: W h y Rich Countries Want a W T O Investment Apement, Oxfam International Briefing Paper 46 (April 2003) 13).See alsoV Been andJ. C. Beauvais,'The Global Fifth Amendment? NAFTA5 Investment Protections and the Misguided Quest for an International 'KegulatoryTakings' Doctrine' (2002) 78 NYUL Kev 30,123.


treaties, along with the restrictive termination c l a ~ s e can s ~ operate ~~ to restrict the host state's capacity to regulate foreign investors so as to ensure that the investment is consistent with the host state's human rights 0b1i~ations.l~~ For example, in the BITs negotiated by the US and canada,I5' non-discrimination rights (national and most favoured nation treatment) are usually extended to the pre-establishm e n t p h a s e of i n v e s t m e n t by t h e i r o w n ~ ~ ~T hsi s.h a' s ~particular ~ implications

for the protection of human rights since these provisions preclude the host state from screening prospective foreign investors and investments, and thus limit its ability to ensure that a particular foreign investment will benefit the host state's development in a manner that protects human rights.159 Many BITs also prohibit host states from imposing a wide range of performance requirements on investors. These types of performance requirements would normally obligate foreign investors to ensure that they conduct their business by taking certain measures 'considered beneficial to the host economy', such as sourcing locally, engaging in technology transfers, or hiring host state nationals.160The prohibition of performance requirements prevents host states from providing for backward linkages of foreign investment into the local economy, thus limiting host states' ability to provide 'an important means of ensuring that private economic activity has an impact on social development and, afortiori, on the progressive realization of human rights'.l6l D. Schneiderman, 'Investment Rules and the New Constitutionalism' (2000) 25 Law and Social Inquiry 757, 771, notes that in most BITS states parties may not terminate the agreement for 10 years and subsequent notice of withdrawal will only take effect after more than 12 months. ibid 758. Schneiderman states that the tenets of these agreements together inhibit the capacity of host states 'to regulate and control the inflow of investment*and 'to resist the encroachment of foreign influence and distribute the gains from economic development more evenly across a broader socioeconomic spectrum' ibid 767ff. Greider has referred to such agreements as a 'golden straitjacket': see W Greider, 'Investment Rules are the Obstacle', Letter to the Editor, Financial Times (26 November 2003), available at Financial Times http://search.ft.com/nonFtArticle? id=031126001011&query=greider&v(last visited 5 March 2007). See for example Article I1 (3) of the Agreement between The Government of Canada and The Government of the Republic of Ecuador for the Promotion and Reciprocal Protection of Investments, at OAS Trade Unit's Foreign Trade Information System, http://www.international.gc.ca/ tnanac/documents/FIPA/ECUADOR-E.PDF (last visited April 9,2007).The agreement states: Each Contracting Party shall permit establishment of a new business enterprise or acquisition ofan existing business enterprise or a share of such enterprise by investors or prospective investors of the other Contracting Party on a basis no less favourablethan that which, in like circumstances, it permits such acquisition or establishment by: (a) its own invntors or prospcctivc investors; or (b) investors or prospective investors of any thlrd state. See UNCTAD, World lnvrctment Reporf 2003: FDI Polidesfor Development: Natioml and Intermtiom1 Perspectives (United Nations: NewYork and Geneva, 2003) 102; see also WTO, Communicationfrom India, Working Group on the Relationship betweenTrade and lnvestment, (2 October 2002), Doc No.WT/WGTI/lSO [4], where India notes that, apart from a recent BIT between Japan and Korea, only the US and Canadian BITs or FIPAs require pre-establishment national treatment. According to UNCTAD n 158 above, 102, '[tlhe right to control admission and establishment remains the single most important instrument for the regulation of FDI.' India has argued in the WTO that non-industrialised states need to retain this capacity to screen investments: see WTO, Communicationfrom India, n 158 above [12]. UNCTAD n 158 above, 102. R. Bachand and S. Rousseau, International Investment and Human Rights: Political and Legal Issues: A Background Paper, Droits et Dtmocratie/Kghts and Democracy, (11 June 2003). 18 at http://

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Moreover, such BITs impose no obligations on foreign investors to respect human rights in the host state. Rather the TNCs are merely obliged to comply with the latter's national law.16' Non-industrialised states are less likely to have effective domestic regulatory mechanisms in place to ensure that foreign investors do not violate the human rights of their inhabitants or that the investment contributes to human rights supportive development.Where such states have entered into BITs they may subsequently be restricted by these treaties from introducing laws that may restrict the foreign investor's investment interests, even where the regulatory measures relate to health, environment, human safety or the protection of other human rights.'63 In addition, the right of investors under these treaties to take the host state to binding international arbitration for breach of a treaty provision can have a' chilling effect on states when they consider enacting legislation to respect, protect, promote or fulfil obligations relating to human rights [and] lawsuits [can] become effective pressure tactics for investors when a state's actions put their interest in jeopardy'.'64 So, in restricting the host state's capacity to regulate foreign investment through such agreements, home states cannot then maintain that it is the obligation of the host state to ensure that subsidiaries of foreignTNCs do not violate international human rights standards. In these circumstances it is arguable that, although the acts of a foreign subsidiary of a corporate national cannot be directly attributed to the home state, the latter exercises sufficient control over the parent company and has constructive knowledge of the potential for the subsidiary to violate human rights law to justify the imposition of an obligation to exercise due diligence in relation to the human rights impacts of such activity The obligation requires a state to take reasonable steps to ensure that such entities do not operate in violation of international human rights law even where such operations are conducted through a foreign subsidiary.This obligation would include, but not be limited to, a requirement that the home state enact domestic regulation, requiring human rights impact assessments, the subsequent mitigation of any such impacts, and the provision of a remedy in the home state's courts.

www.dd-rd.ca/site/YDF/publications/globalization/bachandusseauEng.pdf (last visited 5 March 2007). 162 See for example, Agreement between The Government of Canada and The Government of the Republic of Ecuador for the Promotion and Reciprocal Protection of Investments n 157 above. Articlc 13 of thc US 2004 Modcl BITsccks to imposc an obligation on thc statc partics to 'strivc to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, [domestic labour laws] in a manner that weakens or reduces adherence to the internationally rccognizcd [labour] rights'. Thc aim bcing, it would appcar, to prcvcnt statcs partics from lowcring the domestic standard of protection of labour rights to attract foreign investment. However, the provision only requires the parties to'strive to ensure'they do not weaken or derogate from the laws in question. In addition, it applies to existing domestic laws protecting a small range of labour rights that do not include the right to strike. Moreover, a party's only recourse for breach of such an obligation is to diplomatic consultations. See United States 2004 Model BIT, at http:// www.state.gov/documents/organization/38710pdf (last visited 5 March 2007). 163 R . Bachand and S. Rousseau n161 above and Schneiderman n 155 above. 164 ibid21. See also Schneiderman ibid, 771-772 and UNCTAD n 158 above, 111 and 139 note 35.

Non-State Actors and International Law Responsibility Beyond Borders CONCLUSIONS

It is clear that, under international human rights law, state obligations are not temtorially limited. The jurisprudence of the international human rights supervisory bocks has shown that states have extraterritorial human rights obligations where they exercise power, authority or effective control over individuals, or where they exercise effective control of an area of temtory within another state. Actions by non-state actors, includmg corporations, can be attributed to a state, and give rise to a state's responsibility under general international law, where an international obligation is breached (such as under a human rights treaty). The activities of a corporate national (and its subsidiaries) acting extraterritorially can be attributed to the home state where the corporation is exercising elements of governmental authority, or where it is acting under the instructions, direction or control of the state. A home state will also be responsible if it knowingly aids and assists in either a host state's internationally wrongful act relating to the activities of a home state's corporate national (or its foreign subsidiaries),or the extratenitorial acts of a corporate national (or its foreign subsidiaries) that constitute international crimes. Failure by a home state to exercise due diligence by, inter aka, regulating and monitoring the activities of corporate nationals in conflict zones and in host states with which a home state has ratified a BIT, may also give rise to international responsibility in cases where corporate nationals violate, or are complicit in violations of, human rights. Theimplications of these findings are significant both for the home statesof TNCs, which are usually industrialised states, and for theTNCs themselves. Home stateshave a duty to regulate the extraterritorialactivitiesoftheir corporatenationalsin anumber of circumstances.These include corporate nationals exercising elements of governmental activity, such as privatised corporations exercising state sanctioned activity, and corporationsacting under theinstructions, direction and control of the state, such as those corporations that provide support for extraterritorial mditary operations. In addition, states through their ECAs provide a wide range ofservices and financing to corporate nationals in relation to foreign investment. Home states must sufficiently screen, control and regulate such investment to ensure that they do not become complicit in internationally wrongful acts committed by host states in relation to investment by a foreign subsidiary of a home state corporate national, or in international crimes that corporate nationals either commit or in which they are complicit. Finally, where a home state does not exercise due diligence by regulating, controlling or otherwise taking steps to mitigate the human rights impacts of a foreign subsidiary of a corporate national operating in a conflict zone, failed state or repressive regime, or operating in a non-industrialised state with the protection of a BIT, it may breach its general obligation under international law not to cause harm in other states. In doing so it will incur international responsibility where such corporations violate, or are complicit in violations of, international human rights law. States should therefore establish a regulatory framework to govern and monitor corporate activity in such 10cations.'~~ In addition, states need to review 165 See G. Gagnon, A. Macklin and P. Simons n 144 above, 117ff, for a legislative template for the extraterritorial regulation of the activities of corporate nationals in conflict zones and repressive regimes.

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their BITSto ensure that the provisions of these treaties do not prevent host state parties from complying with their international human rights obligations or give rise to the potential for a violation of the home state's own human rights obligat i o n ~ . Failure ' ~ ~ to take such steps in all these cases could result in a finding before an international human rights tribunal that a home state has violated its human rights obligations, giving rise to intemational responsibility and further obligations to make reparations. Until such time as TNCs become directly legally accountable for their human rights impacts,'" ensuring that home states have some intemational responsibility for the extraterritorial actions of their corporate nationals gives states an incentive to strengthen 'the legal framework calling for the observance of human rights by non-state actors'.168States may also wish to explore the possibilities of making TNCs jointly responsible for any extraterritorial activities that violate human rights, in the same way as joint liability operates in some areas of national law.'69 The reality of the direct and indirect assistance by states to corporations operating extraterritorially is far broader and deeper than is expressed in The Constant Gardener. It is important that states are aware of this, as a garden has to be tended for weeds and corporate extratemtorial violations of human rights can be very strong weeds to unearth.

1 6 6 ~ ~ home h e state will also have the obligation ofinternational assistance and co-operation to allow other states to protect their human rights -see Article 2(1) ICESCR and the Committee on Economic, Social and Cultural Rights, Gcncral Commcnts 2 and 3, (1994) 1 I H R R 3-9. 167 It is doubtful that legally binding international human rights obligations for corporations will be developed, let alone implemented, in the near future. Both states andTNCs have expressed strong opposition to the U N Norms O n the Responsibilities ofEansationa1 Corporations with regard to Human Rights, n 6 above. Moreover, the U N Special Representative of the Secretary-General (SRSG) on the Issue of Human Rights andTransnational Corporations and Other Buiness Enterprises,John Ruggie, has dismissed the Norms as 'a distraction rather than a basis for moving the SRSCS mandate forward'. Whether or not Ruggie supports the possibility of legally binding obligations for corporatc actors, his dcclarcd approach of 'principlcd pragmatism' and proposal to 'map' corporatc legal, social and moral responsibilities suggests a determination of the status quo rather than the development of new binding international human rights obligations: see UNHCHR, 'Interim Rcport of thc Spccial Rcprcscntativc of the Sccrctary-Gcncral on thc Issuc of Human Rights and Transnational Corporations and Other Business Enterprises', (2006) U N Doc E/CN.4/2006/ 97.

168 A. Keinisch, n I3 above, 82. 169 See, for example, A. E.Yamin,'The Future in the Mirror: Incorporating Strategiesfor the Defense and Promotion of Econon~ic,Social and Cultural Rights into the Mainstream Human Rights Agenda' (2005) 27 H R Q 1200. The U N N o m s on the Responsibilities o f % 3 n s ~ t i o dCorporations and Othtr Business Entqrises with Regard to Human Rights, n 6 above, at [I] provide for primary and secondary responsibility of states and corporations respectively.

OVERCOMING NGO ACCOUNTABILITY CONCERNS IN INTERNATIONAL GOVERNANCE Erik B . ~luernel*

......................................................................... I . INTRODUCTION 141 I1. ACCOUNTABILITY IN INTERNATIONAL REGIMES .....................144 A . Democratic Accountability ................................................. 144 B . Moving Beyond Democratic Accountability ....................... 148 FUNCTIONS OF NGOS IN INTERNATIONAL I11. THEVARIED .............................................................................. GOVERNANCE 160 A . Policy Formulation ............................................................. 161 1 . Agenda-Setting ............................................................... 162 2 . Norm and Rule Formulation ........................................... 162 3 . General Participation and Lobbying ............................... 164 B .Administrative Duties ......................................................... 166 1. Certification .................................................................... 166 2 . Standard Setting .............................................................. 168 3. Training and Information Provision............................... 170 4 . Service Provision ............................................................ 172 5. Other Administrative Functions......................................174 C. Enforcement ....................................................................... 175 1. Arbitration and Mediation...............................................175 2 . Monitoring ...................................................................... 176 IV . REFININGTHE CRITIQUE: GUIDING NGO INVOLVEMENT ...... 178 A . Standardizing Procedures by Function .............................. 182 1. Political Functions .......................................................... 184 * Law Clerk. 200546. to the Honorable Kennit Bye. Eighth Circuit Court of Appeals; Law Clerk. 200445. to the Honorable Barefoot Sanders. Northern District of Texas; Member. 2003-04. Task Force on Access and Benefit-Sharing and Traditional Knowledge. United Nations Development Programme (UNDP); Vice.Chair. 200344. Committee on Environmental Law. New York County Lawyers' Association; Member. 200344. Standing Committee on Environmental Law. Association of the Bar of the City of New York; Editor.in.Chief. Fall 2003. N.Y.U. ENVTI. I,.J.; J.D., 2004. New York University School of Law; I would like to thank Professors Dick Stewart and Benedict Kingsbury for their comments on an earlier draft of this Article . This Article reflects the views of the author only and does not necessarily reflect the views of any of the author's institutional affiliates. their composite organs. or their staffs.


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2 . Administrative Functions ................................................186 3 . Enforcement Functions ................................................... 188 B. Harmonizing Domestic Procedures ...................................189 1. Representation................................................................. 192 2 . Accountability ................................................................. 194 3. Validity of Proffered Goals............................................. 195 4 . Veracity of Proffered Goals ........................................ 196 C. Implementation Issues ........................................................199 199 1. Cost ................................................................................. 2 . Feasibility........................................................................ 200 a . Regime Perspective ..................................................... 200 b . NGO Perspective ........................................................ 201 3 . Western Bias ................................................................... 201 4 . Moral Hazard ..................................................................204 5 . Regime Accountability ................................................... 204 V . CONCLUSION ........................................................................... 206


NGO ACCOUNTABILITY CONCERNS

A

ccountability is the "new black" of international governance.' Fears of cooptation of governance by non-state, and therefore in

s o m e scholars' m i n d s , non-legitimate, a c t o r s p e r v a d e s t h e literature o n

accountability.* This critique of non-governmental organizations' (NGOs) participation in international governance regimes generally starts with the question: "Who elected the NGOS?"~This is a fair question to raise, but one which does not address the whole picture or normatively invalidate NGO participation in all circumstances. The current debate and literature over-emphasizes democratic accountability to the possible detriment of other available means of ensuring accountability in governance regimes.4 This Article posits the emphasis on elements such as elections and representativeness of governance actors as lone indicators of accountability is insufficient to justify participation 1. Governance is used throughout this Article in the narrow sense of governance WITHOUTGOVERNMENT: with governmental involvement. See generally GOVERNANCE ORDERAND CHANGEIN WORLDPOLITICS(Ernst-Otto Czempiel & James Rosenau eds., 1992) (discussing the broadening concept of governance beyond governments). It is therefore "a mode of governing that is distinct from the hierarchical control model characterizing the interventionist state. Governance is the type of regulation typical of the cooperative state, where state and non-state actors participate in mixed publidprivate policy networks." Renate Mayntz, Common Goods and Governance, in COMMON AND INTERNATIONAL GOVERNANCE 15, 21 (Adrienne GOODS:REINVENTING EUROPEAN Heritier ed., 2002). This is sometimes referred to as a public-private partnership arrangement, or "the formation of cooperative relationships between government, profit-making firms, and non-profit private organizations to fulfill a policy function." Stephen H. Linder & Pauline Vaillancourt Rosenau, Mapping the Terrain of the Public-Private Policy Partnership, in PUBLIC-PRIVATE POLICYPARTNERSHIPS l, 5 (Pauline Vaillancourt Rosenau ed., 2000). As a result, global governance is "rule making and power exercise at a global scale . . . [and] can be exercised by states, religious organizations, and business corporations. as well as by intergovernmental and non-governmental organizations." Robert 0. Keohane, Global Governance and Democratic Accountability, in TAMING GLOBALIZATION: FRONTIERS OF GOVERNANCE 130, 132 (David Held & Mathias KoenigArchibugi eds., 2003). 2. For the purposes of this Article, an NGO shall be defined in accordance with the United Nations' definition which notes an NGO as "any non-profit voluntary citizens' group which is organized on a local, national or international level." United Nations, http:llwww.un.orgldpi/ngosection/brochure.htm (last visited Aug. 9, 2005). 3. Kenneth Anderson, The Limits of Pragmatism in American Foreign Policy: Unsolicited Advice to the Bush Administration on Relations with International Nongovernmental Organizations, 2 CHI.J . INT'LL. 371, 379 (2001). 4. See Ruth W. Grant & Robert 0. Keohane, Accountability and Abuses of Power in World Politics, AM. POL.SCI.REV., Feb. 2005, at 1.

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in international governance and fails to recognize the importance of delegation as another legitimate source of a ~ t h o r i t y . ~ Most scholars treat NGOs as a homogenous group and base their theoretical and normative arguments around such a generalization, even when recognizing NGOs vary significantly on a number of levek6 This Article seeks to advance the literature on NGO accountability by unpacking NGOs by functional role in international governance and relating these roles to accountability theory. Failing to recognize these functional distinctions, many theories of NGO participation in international govern-

5. Robert 0. Keohane, Political Accountability 14-17 (paper presented to Conference on Delegation to International Organizations, Park City, Utah, May 3 4 , 2002); Robert 0. Keohane & Joseph S. Nye, Democracy, Accountability and Global Governance 1 (Harvard Univ. Politics Research Group, Working Paper No. 01-4, 2001), available at http://www.ksg.harvard.edu/prg/nye/ggajune.pdRobert E. Goodin, Democratic Accountability: The Third Sector and All 12 (John F. Kennedy Sch. of Gov't, Working Paper No. 19, 2003); Miles Kahler, Defining Accountability Up: The Global Economic Multilaterals (May 17-18, 2002) (working paper, presented at Miliband Conference on Global Governance and Public Accountability, London School of Economics) (arguing national governments have adequate institutional control over international institutions to which power is delegated). 6. Wide variations in NGOs' purposes, sizes, competencies, functions, membership structures, and funding sources, for example, impact the effectiveness of accountability mechanisms and counsel for greater specificity in establishing accountability mechanisms. For a discussion of somc of these wide NGO variations, see, for example, Benedict Kingsbury, First Amendment Liberalism as Global Legal Architecture: Ascriptive Groups and the Problems of the Liberal NGO Model of International Civil Society, 3 CHI.J. INT'L L. 183, 186 (2002); S. Tarrow, Transnational Politics: Contention and Institutions in International Politics, 4 ANN. REV. POL. SCI. 1 (2001) (noting sometimes NGOs are really state bodies in disguise to gain increased political influence); J.A. 281, 295Scholte, Civil Society and Democracy in Global Governance, 8 GOVERNANCE 99 (2002); Ngaire Woods, Global Governance and the Role of Institutions, in GOVERNING GLOBALIZATION 25, 28 (David Held & Anthony McGrew eds., 2002); John POL'Y,Sept.Micklethwait & Adrian Wooldridge, The Globalization Backlash, FOREIGN Oct. 2001, at 16 ("NGOs claim to represent global civil society. But nobody elects them."); David B. Rivkin, Jr. & Lee A. Casey, The Rocky Shoals oflnternational Law, 62 NAT'LINTEREST35, 37 (2001) ('NGOs are not elected, not accountable to any body politic.''); Jeremy Rabkin, international Law vs. the American Constitution-Something's Got to Give, 55 NAT'LINTEREST 30,37 (1999) ("NGOs never have to face voters or bear any sort of accountability."). The variations are important because, for example, increasing the openness or representativeness of governance structures may undermine accountability for nondecisions when deadlocks or "joint decision traps" occur (made more likely by the increased breadth of participation). See Fritz W. Scharpf, Coordination in HierarAND NETWORKS:ANALYTICAL AND chies and Networks, in G M S IN HIERARCHLES EMPIRICAL APPROACHES TO THE STUDYOF GOVERNANCE INSTITUTIONS (Fritz W. Scharpf ed., 1993).


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ance have missed the mark, focusing primarily on ensuring greater accountability of NGOs generally. This Article seeks to remove the debate regarding the provision of accountability from the level of the actor to that of f ~ n c t i o n .This ~ Article proposes the participation of NGOs in international governance should not always depend upon democratic accountability. Instead, the accountability required of these NGOs should depend upon the particular governance function they perform. As a result, the mechanisms used to achieve such accountability will necessarily vary by function. Part I1 begins with a discussion of accountability in international governance, establishing a general typology of accountability mechanisms.' Part I11 then describes some of the different functions performed by NGOs in international governance, providing examples of how such systems are arranged under existing frameworks and illustrating the relationship between the function performed and the accountability needed. Part IV seeks to refine NGO accountability theory by proposing a new model to guide NGO participation: one linking accountability to function. Part IV also identifies some concerns in implementing the theory. The Article concludes by calling for further research into the potential drawbacks of implementing this new framework so an appropriate balance between fairness, operability, and accountability may be reached in international governance.

7. While it may be argued the underlying assumption behind this framework is that it does not matter who governs, so long as appropriate accountability controls are enforced, this argument would be an over-extension of this Article's proposal. This Article does not seek to undermine the authority of State actors in international governance, nor does it suggest States are losing power in international governance. Rather, it questions the assumption that accountability mechanisms must be differentiated between authority delegated to administrative government agencies and authority delegated to non-state actors with sufficient controls to assure adequate accountability to the delegator. It is beyond the scope of this Article to evaluate whether, after establishing a baseline accountability requirement for a particular function, particular actors must be held to different standards based upon different levels of legitimacy as international governance actors. Normatively, such a differentiation seems questionable, since accountability mechanisms are designed to constrain power, whatever its form. These actor-based legitimacy concerns may better be dealt with through other forms of legitimization, rather than through accountability controls, but this Article does not take a position on this issue. 8. This categorization is based largely upon the work of Keohane, Grant, and Nye. See generally Grant & Keohane, supra note 4; Keohane & Nye, supra note 5.

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Although accountability is "an under-explored concept whose meaning remains e v a s i ~ e , "the ~ purpose of this Article is not to define the concept with any more lucidity than theorists who have come before; instead, it is to explore a new mode of analysis for how accountability mechanisms should be structured. Generally, an "accountability system is the set of accountability mechanisms, and their interactions, that characterize a given governance system."'0 Accountability implies information and the ability to sanction power-wielders for misbehavior: "[a]ccountability refers to relationships in which principals have the ability to demand answers from agents to questions about their proposed or past behavior, to discern that behavior, and to impose sanctions on agents in the event that they regard the behavior as unsatisfactory."" Accountability is important in international governance because "to a greater degree than domestic lawmaking, the international process suffers from an accountability deficit."'* A. Democratic Accountability Most theorists have defined and operationalized accountability by reference to democratic legitimacy, elections, and the sanction of removal as yardsticks of accountability and legitimacy.13Democratic accountability presumes the existence of a demos14 whose will can be measured.

9. Andreas Schedler, Conceptualizing Accountability, in THE SELF-RESTRAINING STATE:POWERAND ACCOUNTABILITY INNEWDEMOCRACIES 13, 13 (Andreas Schedler et NG al. eds., 1999) [hereinafter THE S E L F - & ~ ~ K NSTATE]. 10. Keohane, Political Accountability, supra note 5, at 9. 11. Id. at 3. See ulso John Dunn, Situating Democratic Political Accountability, in DEMOCRACY, ACCOUNTABILITY, AND REPRESENTATION 329. 335 (Adam Przeworski et al. eds., 1999). It is important to note the principals, or accountability holders, need not be the beneficiaries of the agents' actions. 12. Paul B. Stephan, The New International Law-Legitimacy, Accountability, Authority, and Freedom in the New Global Order, 70 COLO. L. REV. 1555, 1562 (1999). 13. This Article does not presume democratic legitimacy is the only or necessarily the appropriate form of legitimacy to which regimes and organizations should aspire. However, it is one of the norms discussed in this Article and representative accountability (often referred to as democratic accountability) is assumed throughout many of the discussions in this Article. 14. A demos is considered "a polity with members by . . . whom and for whom democratic discourse with its many variants takes place." J. H. H. Weiler, European NeoConstitutionalism: In Search of Foundationsfor the European Constitutional Order, 44 POL.STUD.5 17, 523 (1996). It has been referred to as "a sovereign authority that decides important political matters either directly in popular assemblies or indirectly through its

Non-State Actors and International Law NGO ACCOUNTABILITY CONCERNS While the existence of an international demos is a matter of significant contention,15 some authors have suggested cross-border and international issue- and function-specific demoi do exist.l6 Whether an international demos exists remains a debate. However, civil society registered its view on the matter in Seattle, proclaiming loudly through protests at the World Trade Organization meeting in 1999 that without abilities to relate civil society's views to the governing bodies of international legal regimes, those regimes may become less legitimate." This has led some to conclude a "democracy deficit" exists, necessitating greater accountability.'* This Article agrees democratic accountability may be important and necessary to ensure the legitimacy of governance regimes, but believes the uniform requirement of democratic accountability to be excessive. Instead, this mode of accountability should be required only when functions performed by NGOs relate to the representation of a particular populace.

representatives." Robert A. Dahl, Can International Organizations be Democratic? A Skeptic's View, in DEMOCRACY'S EDGES20 (Ian Shapiro & Casiano Hacker-Cordon eds., 1999). CIRCLE:POLITICAL COMMUNICATIONS IN 15. Compare PIPPA NORRIS.A VIRTUOUS POSTINDUSTR~AL SOCIETIES (2000) (generally arguing national identities are not sufficiently global to support a representative global demos) with DAVID BEETHAM, AND HUMAN RIGHTS137 (1999) ("[Tlhe demos that is democracy's subject DEMOCRACY has come to be defined almost exclusively in national terms, and the scope of democratic rights has been limited to the bounds of the nation-state."). 16. See Tanja Briihl, The Privatisation of International Environmental Governance, in PROCEEDINGS OF THE 2001 BERLINCONFERENCE ON THE HUMANDIMENSIONS OF GLOBALENVIRONMENTAL CHANGE: GLOBALENVIRONMENTAL CHANGE AND THE NATION STATE 371, 376-77 (Frank Biermann et al. eds., 2002), available at http:/lwww. glogov.org/upload/public%2Ofiles/pdflpublications/bc%2Oproceedings/bc200 1/bruhI.pdf. This is because a demos is defined by populations which, having a sense of trust and public spirit, engage in public discourse to recognize the existence of mutual rights and obligations of its members, reinforcing feelings of solidarity within the population. See Michael Ziirn, Democratic Governance Beyond the iVation-State: The EU and Other International Institutions, 6 EUR.J . INT'L REL. 183, 195-200 (2000). 17. Keohane & Nye, supra note 5, at 22. 18. E.g., Alfred C. Aman, Jr., The Limits oJGlobalization and the Future oJAdministrative Law: From Government to Governance, 8 IND. J . GLOBALLEGALSTUD.379 (2001). Other authors have argued even democratic decisions at the State level are often no longer "democratic" in so far as they create externalities on neighboring States' citizens who had no opportunity to participate in the decision-making. See Daniele ArchiPOLITICAL COMMUNITY: bugi, Principles of Cosmopolitan Democracy, in RE-IMAGINING DEMOCRACY 198, 204 (Daniele Archibugi et al. eds., 1998) STUDIESIN COSMOPOLITAN [hereinafter RE-IMAGININGPOLITICAL COMMUNITY]; David Held, Democracy and Globahation, in RE-IMAGINING POLITICAL COMMUNITY, supra at 11, 14.

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Levels of internal democratic accountability vary significantly between NGOS,'~and some have argued "the role of NGOs is not to be representative but to raise a~areness."~' However, the vast majority of NGO accountability scholars dealing with this issue evaluate NGO accountability based solely upon these internal control^.^' Their claim is NGO representatives generally are not elected by their memberships, and members typically are passive contributors who do not review or direct the NGOs' actions.22 However, this criticism of NGO democratic accountability tends to conflate internal and external a c c ~ u n t a b i l i t ~ The . ~ ~external democratic accountability charge is NGOs are only accountable to their membership, without allowing the beneficiaries a right to determine the NGO actions affecting them.24 However, both of these criticisms depend upon the norm of democracy to legitimate NGO involvement in international governance. This Article posits legitimate governance need not always be based upon the norm of democracy, especially of elections, but recognizes it may be an appropriate focus for certain functions.25 The external democratic accountability critique faces an additional problem: it does not justify requiring NGOs to represent the beneficiaries of its actions. Should a corporation be held accountable primarily by its shareholders or its consumers? The same issue applies here: members are the primary determinants of internal NGO accountability, while beneficiaries are rightly viewed as external accountability holders who at all times possess reputational controls, but who may possess greater rights to hold NGOs accountable depending upon the function performed by 19. See David Chandler, New Rightsfor the Old? Cosmopolitan Citizenship and the Critique ofstate Sovereignty, 51 POL. STUD.332,336 (2003). 20. Id. at 340 (internal quotation omitted). See also Johan Galtung, Alternative ModKEY DEBATES143, 155 (Barry Holelsfor Global Democracy, in GLOBALDEMOCRACY: den ed., 2000). 21. See Peter J. Spiro, The Democratic Accountability of Non-Governmental Organizations, 3 CHI.J. INT'LL. 161, 163 (2002). 22. Id. 23. See id. 24. A. Claire Cutler et al., The Contours and SigniJicance of Private Authority in International Affairs, in PRIVATEAUTHORITY AND INTERNATIONAL AFFAIRS333, 369 (A. Claire Cutler et al. eds., 1999). 25. Therefore, this Article does not go so far as some scholars as to suggest NGOs can claim legitimate representative rights over beneficiaries without being democratic or accountable to such beneficiaries. See Klaus Dieter Wolf, Private Actors and the Legitimacy of Governance Beyond the State, paper presented at ECPR Joint Session Workshop, Grenoble (2001), http://www.ifs.tu-dmstadt.de/fileadmin/pg/media~papers/civil. pdf.


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NGO ACCOUNTABILITY CONCERNS the organization. For instance, where the NGO claims to represent the beneficiaries in a lobbying activity, beneficiaries should have a stronger right to constrain NGO actions than where NGOs are merely establishing standards they believe will help certain populations.26 Although democratic accountability can be important, a leading democratic political theorist, Robert Dahl, noted, "international organizations are not and are not likely to be democratic."" Dahl suggests international institutions be analyzed as bureaucratic bargaining systems, not as democratic governance regimes.28This view has begun to take hold, as the traditional demos theory of legitimacy has largely been replaced by international relations theorists who break legitimacy into two basic components: input or institutional legitimacy, which is derived from democratic expressions of the affected public's and output or taskspecific legitimacy, which is based upon the effectiveness of actions taken to achieve normatively salient goals.30This Article posits accountability, recognized to contribute to legitimacy,31should undergo a similar dual analysis.32 Although traditional task-specific accountability analyses have focused on the effectiveness of governance outcomes,33this Article seeks to rede26. See id. 27. Dahl, supra note 14, at 32. 28. Id. 29. Institutional legitimacy can also be found through tradition and symbols. See Keohane & Nye, supra note 5. Since these forms of legitimacy are not readily encompassed within accountability structures or applicable to international institutions, they are not discussed in this Article. See id. 30. See Fritz W. Scharpf, Interdependence and Democratic Legitimation 2 (Max Planck Inst., Working Paper No. 9812, 1998), available at http:/lwww.mpi-fgkoeln.mpg.delpuiworkpapiwp98-2iwp98-2.ht FRITZ W. SCHARPF, GAMES REAL ACTORSPLAY:ACTOR-CENTERED INSTITUTIONALISM IN POLICYRESEARCH 153 (1997); OF LEGITIMACY AND INTERNATIONAL RELATIONS (1995); PENTTI SADENIEMI, PRINCIPLES see also Alan F . Fowler, Assessing NGO Performance- DifJiculties, Dilemmas, and a Way Ahead, in BEYOND THE MAGIC BULLET: NGO PERFORMANCE AND ACCOUNTABILITY IN THE POST-COLDWAR WORLD169 (Michael Edwards & David Hulme eds., 1996) Fereinafter BEYONDTHE MAGICBULLET] (arguing for performance-based analysis of NGOs to include output, outcome, and impact related measures); Debora Spar & James Dail, Of Measurement and Misslon: Accounting for Performance in Non-Governmental Organizatzons, 3 CHI.J. INT'L L. 171, 177-78 (2002) (discussing Fowler's performance analysis framework). 3 1. Grant & Keohane, supra note 4. 32. This follows Grant and Keohane's analysis of democratic and non-democratic forms of accountability. See id. 33. See, e . g , Ngaire Woods, Who Should Govern the World Economy: The Challenges of Globalization and Governance, 9 RENEWAL73, 78 (2001) ("The democratic


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fine the analysis to legitimize the performance of the tasks themselves through procedural mechanisms which promote both greater internal and external ac~ountability.~~ A task-specific approach makes clear not all tasks or functions need to be legitimized by governance outcomes even at the international level where the existence of a demos is heavily questioned. Varying combinations of input and output controls can promote legitimacy in different functional circumstances and, depending upon the mechanisms required, can promote democratic ac~ountability.~~ This Article does not propose a democracy- or delegatory-based accountability control system is appropriate in all cases,36but rather legitimizing controls will depend upon the functions performed. Accordingly, this Article posits the traditional emphasis on democratic principles to guide accountability controls is misplaced.37

B. Moving Beyond Democratic Accountability Although there has been a historic over-reliance on democratic controls, alternative measures to hold non-state actors accountable, such as profitability, are not necessarily appropriate or valuable yardsticks for determining NGO performance.38Basing their typology on a delegatory model of international governance, Keohane, Grant and Nye demonstrate the existence of multiple forms of internal and external accountability, though they question the ability of some of the mechanisms they describe to adequately hold some international governance actors accountable in

legitimacy of 'network governance' relies on a new way of conceiving of democracy which . . . shifts the focus from the 'inputs' of the decision-making system (i.e. elections and representative government) to the quality of the 'outputs' of the system."). 34. While authors have discussed procedural mechanisms in terms of internal accountability constraints, it may be equally applicable to external accountability, where stakeholders are not members of NGOs, but rather beneficiaries. See U.N. Dev. Programme, Human Dev. Report Office, Civil Society and Accountability 2 (2002), available (preat h t t p : / / h d r . u n d p . o r g / d o c s / p u b l i c a t i o n s / b a O O 2 . p d f pared by Mary Kaldor). 35. This combination of input- and output-based accountability controls exists even in the United States, widely hailed as a country with strong democratic accountability controls. See Keohane & Nye, supra note 5, at 6 7 , 26 (noting legal accountability might promote both input- and output-based legitimacy). 36. For a discussion of the need for an international demos to support democratic governance, see Ziim, supra note 16. 37. Grant & Keohane, supra note 4. 38. Spar & Dail, supra note 30, at 176. For different approaches to assessing NGO performance, see id. at 1 76 n. 12.



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certain circumstance^.^^ The grab bag of control mechanisms derived from the delegatory system of governance referenced by Keohane, Grant and Nye include fiscal, market, supervisory, legal, peer, market, reputational, and hierarchical accountability mechanism^.^^ Fiscal accountability, also known as financial conditionality, refers to the external controls which the individual or institution holding the purse string can exert over the governance a ~ t o r . These ~' controls include not only conditions a financier may impose upon an NGO, but also may include, inter aliu, national regulations preventing an NGO from engaging in for-profit activities or decisions made by individuals with conflicts of interests. Keohane and Grant suggest this form of accountability is particularly strong for NGOs which are highly dependent upon external grants and funding4*The necessity of financing for sustainability creates a competitive financing market, with NGOs seeking to carve out market niches and branding.43This competitive effect may cause NGOs to act like for-profit actors-similar to the situation in which NGOs compete for government contracts-and therefore may cause NGOs to act contrary to the interests of their memberships, their funders' interests, or their beneficiarie~.~~ Similar to fiscal accountability, market accountability, or the means by which NGOs obtain financing or membership in a competitive NGO environment, can also be a powerful external method to control runaway NGO behavior.45This form of accountability in the NGO context, however, is less compelling, as most NGOs create particular niche markets or brands, making their services less substitutable and thereby decreasing the likelihood perfect NGO markets for financing, services, or memberships exist. Supervisory accountability is another form of external accountability whereby those who have delegated authority to the NGOs may withdraw such authority or censure the NGOs for failing to follow instructions. In 39. Keohane & Nye, supra note 5, at 1-5: see also Grant & Keohane, supra note 4; Alfred C. Aman, Jr., Globalization, Democracy, and the Needtor a New Administrative Law, 49 UCLA L. REV. 1687, 1692 (2003) (arguing market accountability mechanisms may not be sufficient to ensure proper provision of some social services by non-state actors). 40. Keohane & Nye, supra note 5, at 4-5; Grant & Keohane, supra note 4, at 8. 41. Grant & Keohane, supra note 4, at 8. 42. Id. 43. Kaldor, supra note 34, at 24. OF NON-GOVERNMENTAL DEVELOPMENT 44. See DAVIDLEWIS,THEMANAGEMENT ORGANISATIONS: AN INTRODUCTION199-200 (200 1). 45. See Grant & Keohane, supra note 4, at 9-1 0.

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international governance this is a particularly powerful type of accountability mechanism, as evidenced by the adherence of the World Bank and IMF to the standards demanded by the Member States overseeing (and funding) their operation.46This form of accountability control is even more powerful for NGOs dependent upon government contracts and relationships for viability and financing. Another external constraint upon NGO behavior is legal accountability. Although this form of accountability has potency at the domestic level to prevent private inurement or other self-serving behavior of officers, at the international level, without greater harmonization, it will likely be fairly weak at ensuring ac~ountability.~~ Additionally, no international law governs the operation of NGOs. Rather, legal accountability in international governance might be considered contract accountability, whereby NGOs are required to follow the terms of a contract signed with other governance actors. Failure to abide by those terms could have the same individual and organizational consequences as those imposed by legal sanctions or penalties. This revised view of legal accountability in the international governance context indicates such constraints might be important for NGOs acting in a governance capacity. Peer accountability is how actors in a horizontal relationship with the NGO performing a governance function hold the NGO to certain standards of accountability. NGOs often act as coalitions to coalesce the necessary resources, expertise, and relationships to achieve particular funct i o n ~peer ; ~ ~accountability regulates the relationship between these partnerships to a certain extent. However, as discussed below, this form of accountability is questionable as a source of normatively justified constraints on actor behavior. Concerns of exacerbating representational imbalances through participation of unaccountable NGOs have caused some scholars to suggest the greater use of peer accountability mechanisms to ensure the appropriate representativeness of ~ ~ 0Thiss argument . ~ suggests, ~ however, it might be limited to a situation of network governance.50To the author's mind, 46. See id. at 8-9. 47. See id. at 9-12. 48. Id. 49. See Goodin, supra note 5, at 29-30. 50. Partnerships and linkages, especially with local groups, are crucial for the success E. KECK & KATHRYN SIKKINK, ACTIVISTS of many international NGOs. See MARGARET BEYOND BORDERS 23-29 (1998); Grant & Keohane, supra note 4. In such situations, the partnership has a normative right to hold members of the partnership (externally) accountable with respect to actions taken affecting the partnership. See Paul Wapner, De-

Non-State Actors and International Law NGO ACCOUNTABILITY CONCERNS peer review is rarely, if ever, a normatively satisfactory means by which to hold actors accountable, but is only a second- or third-best solution. Since peer organizations are only very indirectly affected by the actions of other similarly situated NGOS,~'their normative right to hold other NGOs accountable is limited at best (when not a partner in a particular governance function) and may be limited further based on the particular functions performed by NGOs. Additionally, little normative support is provided for the concept of using peer accountability mechanisms instead of other accountability controls in non-network governance structures. This is important because where NGOs perform actions similar to government entities, or replace what might otherwise be government activities, requiring less accountability assurances of NGOs than of government actors may present opportunities for game-playing and other self-serving activities. This Article does not directly oppose such theories, although it seemingly conflicts with existing theories of accountability which suggest different actors should not be required to meet the same accountability controls, relying upon (unequal) checks and balances as accountability controls.52 Rather, this theory suggests function, rather than actor, is how accountability controls should be e~tablished.~~ -

fending Accountability in NGOs, 3 CHI. J. INT'L L. 197, 202 (2002) ("Whenever an NGO links or otherwise collaborates with another, it opens itself up to scrutiny and evaluation. To the degree that NGOs find strength in doing so, however, accountability becomes part of the price of increased transnational effectiveness."). However, the right to hold actors accountable or impose sanctions upon those other organizations is normatively suspect. Funding competition may promote such self-serving behavior, but the right of these peer organizations to hold each other accountable is limited, since they do not purport to act on each other's behalf. 5 1. Other NGOs might be affected by the actions of a particular NGO through reputational effects on the NGO sector or as a result of information failures attributing improper NGO actions not exclusively to the offending NGO. See EUGENERARDACH,GETTING AGENCIES TO WORKTOGETHER: THE PRACTICEAND THEORYOF MANAGERIAL CRAFTSMANSHIP 144-46 (1998). Sole rehance on peer accountability mechanisms may, in fact, promote the creation of collusive networks. See Goodin, supra note 5, at 45. 52. See, e g.,Goodin, supra note 5, at 37-38. Goodin's analysis, however, often conflates internal and external accountability, making theoretical extrapolations from his argument difficult. See id. at 42. 53. This Article is open to the possibility the theory it propounds might require incorporation of the two theories insofar as actors performing a particular function would require particular accountability controls, though the exact form or extent of those controls might vary depending upon the actor. Practically, the form of accountability must necessarily vary by actor, as different procedural mechanisms are necessary to implement intended accountability controls. However, this Article considers the constraining effect on

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Reputational accountability is the least well-defined of the various accountability mechanisms laid out in Keohane, Grant, and Nye's typology. They recognize this form of accountability is often dependent upon, or even coterminous with, other forms of accountability, especially market accountability, though it is possible reputational effects may exist outside those of other accountability constraint^.^^ The argument goes: reputational forces regulate the extent to which NGOs must address internal accountability, since no exit barriers exist for members, and the NGO "markets" for membership are generally competitive.55Albert Hirschman, however, has shown the dangers of this reasoning. He notes where individuals can exit an organization's membership easily and join another organization; there is little incentive for the individual to use her voice to improve the organization.56Given the sheer number of NGOs, even in a particular issue area, competition between NGOs is not likely to significantly contribute to greater internal accountability. So long as a particular NGO captures the majority of an individual's preferences, the NGO may make a number of minor policy choices without membership support or fear of significant reprisal.57 Additionally, where members seek to hold their representative organizations accountable, there are significant barriers to entry, which come in the form of information costs.58An individual may have invested a sigactor behavior to be theoretically equivalent for all actors performing a particular function. Differential treatment based on type of organization, then, is justified only to the extent such treatment can equalize the ultimate level of accountability achieved across organizations performing the same governance function. This, however, would not justify, from a normative perspective, the use of different types of accountability controls to equalize total accountability; it would only justify a greater level of the same controls used to ensure accountability of other actors. 54. Keohane & Nye, supra note 5, at 17; Grant & Keohane, supra note 4, at 9. 55. See Spiro, supra note 2 1 , at 16344,166-67 (also noting some concerns regarding monopoly power may exist in certain circumstances). 56. ALBERT0 . HIRSCHMAN, EXIT, VOICE,AND LOYALTY:RESPONSETO DECLINEIN FIRMS,ORGANIZATIONS, AND STATES 84 (1970). 57. See generally Jonathan R. Macey, Packaged Preferences and the lnstitutional Transformation oflnterests, 61 U . CHI.L. REV. 1443 (1994). 58. Scholars on this topic have typically assumed basic, media-related monitoring is sufficient to achieve internal accountability, but this again conflates the issue of internal and external sovereignty to the extent it is assumed media-related monitoring is accurate and wholly accepted by the membership. See, e.g., Moises Naim, Lori's War, FOREIGN POL'Y, Spring 2000, at 28, 39. Spiro analogized NGO membership to corporate shareholder management (who can similarly enter and exit with relative ease) which Spiro claims is formally clear, but practically limited due to the high costs of monitoring and collective action problems. Spiro, supra note 21, at 165. But see Goodin, supra note 5, at

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nificant amount of energy into learning about an organization's activities, and after review of those activities, suggested new directions for the organization. If those suggestions fall on deaf ears, she may choose to leave. However, prior to joining an organization, she does not necessarily know whether it is highly representative without a significant amount of research. Additionally, in order for any organization to be held truly accountable by its internal membership through reputational mechanisms, the individual members must also incur significant information-gathering costs to learn about the organization's activities and then incur moderate participation costs. It therefore may be unrealistic to expect NGO competition alone would achieve greater internal accountability and representativene~s.'~ This is borne out in practice, where such competition exists, but few organizations are held accountable to their memberships directly, especially in lower-order decisions. While the competition issue is usually buttressed by assertions NGOs' claims to legitimacy depend upon self-regulation, or the creation of internal accountability m e c h a n i ~ m s this , ~ ~ approach falls short as a framework for establishing accountability. As an accountability control, competition establishes a reliance upon other, (generally) non-regime-related organizations to hold the participating NGOs to account.61 From both systemic and normative perspectives, this seems as undesirable as peer accountability mechanisms. Finally, NGOs might regulate themselves through the internal accountability mechanism of hierarchy. Individual officers and agents of an NGO are held accountable to standards established by the NGO's management and organizational structure. Failure to abide by the NGO's own standards may result in salary cuts or firing and therefore can act as significant deterrents to impropriety.62For instance, incorporation creates hierarchical internal accountability within the organization.63However, 7 ("[Iln the non-profit sector there is simply no equivalent to 'voters' in the state sector or 'shareholders' in the market sector."). The likelihood of media-related monitoring is perhaps even greater in the corporate context than in NGO context, so this argument seems to lack much merit. At best, Spiro's argument counsels for greater monitoring of corporate accountability when corporations are acting in democratic international governance schemes. 59. See Spiro, supra note 21, at 163. 60. See L. David Brown et al., Globalization, NGOs and Multi-Sectoral Relations 27 (Hauser Ctr. For Nonprofit Orgs., Harvard Univ., Working Paper No. 1, 2000). 61. Id. 62. See Goodin, supru note 5, at 5-7. 63. Id. at &7.


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while incorporation may control some rent-seeking behavior by individual officers, it does little to influence the behavior of a fly-by-night or otherwise wholly corrupt NGO. It does, however, create transparency and reporting obligations which may increase the cost of being corrupt and thereby increase accountability. As this cursory discussion illustrates, non-democratic accountability mechanisms exist. However, each method of control has its own unique strengths and weaknesses and range of applicability, all of which is often highly context- and function-dependent. Often, however, a particular action may be held to account by a number of different mechanisms. The task of the accountability holder is then to determine both the type and extent of the particular mechanism to be applied. This is no easy task. This Article seeks to begin this process by aligning particular governance functions to the type of accountability controls most appropriate from a normative standpoint. Although not definitive in its approach, the Article does suggest a prototypical framework which the author expects will require further refinement and development to make it fully operational. Although this Article breaks new ground in establishing a functionbased approach to accountability controls, some scholars have already illustrated some of the context-dependency of delegatory or nondemocratic accountability controls, noting, for instance, market and reputational accountability depend upon transparency for effecti~eness.~~ Despite these contextual concerns and prerequisites to effectiveness, many authors have seemed to assume the mere existence of these accountability mechanisms somehow means such mechanisms are sufficient to hold For instance, even Keohane has suggested NGOs actors accountab~e.~~ 64. See Thomas Hale, Managing the Disaggregation of Development: How the Johannesburg "Type II" Partnerships can be Made Effective 23-26 (2003), http://www.

wws.princeton.edu/mauzerall/wws402f~s03/JP.ThomasHale.pdf. 65. See Thomas Hale & Denise L. Mauzerall, Thinking Globally and Acting Locally: Can the Johannesburg Partnerships Coordinafe Action on Sustainable Development?, 13 J. ENVTL. DEV. 220, 226-29, available at http://www.wws.princeton.edu~mauzerall/ papers/Hale.Mauzerall.JED.final.pdf.Hale and Mauzerall argue reputational, market and, indirectly, financial accountability, can hold private partnerships accountable to a broadbased constituency of affected stakeholders. Id. See also Hale, supra note 64, at 22. However, they do not identify which stakeholders should have a right to hold the actors accountable or how they are affected or even relate to the accountability mechanisms assumed to be effective. Additionally, they undermine their own argument by recognizing "reputational and market accountability . . . does not work equally well on all types of actors. 'Brand-less' corporations, non-democratic governments, and projects with guaranteed funding sources are resistant to the kind of reputational and market enforcement powers the proposed regulatory regime would apply." Hale & Mauzerall. supra at 19;


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NGO ACCOUNTABILITY CONCERNS "are highly vulnerable to threats to their reputations."66 This Article argues even where contextual prerequisites can be met, accountability mechanisms are not necessarily appropriate or effective constraints on actor behavior when performing different functions. This is particularly important since "[a]ccountability is not a pure good" where more is necessarily better? and "the total possibilities for participation are inescapably constrained by the need to accomplish the institution's tasks."68 NGO involvement in global governance must be limited both by number and type of organizations in order to ensure governance occurs. While contextualizing these issues is difficult and should necessarily be beyond the scope of academic work such as this, the importance of this analysis is to reveal the level of generality and false grouping is standard practice in NGO scholarship and the need for a more functionbased analysis of accountability. The amount of allowable government support, for instance, should depend upon the particular functions performed by the NGO. Some political groups may receive government Hale, supra note 64, at 26. Hale and Mauzerall incorrectly understand Keohane and Nye's reputational and market accountability issues by linking them with funding, and also consider many of the accountability mechanisms discussed by Keohane and Nye to be "horizontal" forms of accountability. Hale & Mauzerall, supra. at 14-15, 19; Hale, supra note 64. at 22. However, despite Schmitter's definition of horizontal accountability as "the existence of permanently constituted, mutually recognized collective actors at multiple levels of aggregation within a policy that have equivalent capacities to monitor each other's behavior and to react to each other's initiatives," Philippe C. Schmitter, The STATE,supra note 9, at Limits of Horizontal Accountability, in THESELF-RESTRAINING 59, 61, this view of accountability is more akin to "checks and balances," see Guillermo O'Donnell, Horizontal Accountability in New Democracies, in 'I'HE SELF-RESTRAINING STATE,supra note 9, at 29, 39 (stating effective horizontal accountability requires state agencies with authority and autonomy, as well as a willingness to oversee, remedy, and sanction other agencies' unlawful actions), which are not technically accountability controls. See Grant & Keohane, supra note 4, at 7-9. Instead, horizontal accountability truly implies peer accountability. not accountability through the participation of multiple levels of affected stakeholders who may not be social equals. See Keohane, Political Accountability, supra note 5, at 20. In fact, "NGOs are weak compared to governments." Keohane, Global Governance and Democratic Accountability, supra note I, at 145. Although this Article does not discount the importance of transparency generally for ensuring accountability, it nevertheless does not support the exclusively project-based view of Hale and Mauzerall. Rather, this Article believes that both internal and external accountability concerns must be addressed equally for accountability and legitimacy to be ensured. 66. Keohane, Global Governance and Democratic Accountability, supra note 1 , at 148. 67. See Robert 0. Keohane, Commentary on the Democratic Accountability of NonGovernmental Organizations, 3 CHI.J . INT'LL. 477, 477 (2002). 68. Kingsbury, supra note 6, at 186 (citation omitted).


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funds while others do not; if an NGO is to lobby an international organization for a particular policy, is it appropriate to include political groups funded by States? Or should only fully independent groups be allowed to participate? The answers to these questions and others can and should vary based upon the function the NGO seeks to perform and the international regime's normative values. This Article seeks to establish a basic functional typology for establishing accountability controls for NGOs participating in international governance. Most prominent NGO scholars, including those demanding greater internal and external accountability controls, consider NGOs to be relatively weak institutional players. For instance, Keohane does not recommend strong accountability controls of "relatively weak NGOs," but notes "as a particular NGO gains influence, it can exert effects, for good or ill, on people not its members. At this point, it can be legitimately held externally accountable as other powerful entities operate in world polit i c ~ . "Keohane ~~ suggests such limited controls because he considers NGOs to be mere lobbyists.70This Article agrees with Keohane's passing comment regarding the increasing power of external accountability controls as an NGO gains influence, but takes a slightly different approach: as NGOs perform different functions, the level of power they wield over an international governance system changes, and therefore the strength of controls based on internal accountability and external accountability to the regime itself should vary according to the importance of its function and level of control over outcomes. External accountability to beneficiaries, on the other hand, should only be implicated where there is a possiDeparting from ble impact upon the choice or rights of benefi~iaries.~' most scholarship on NGO accountability, this Article seeks to determine which forms of accountability are appropriate when. As Keohane explains, "[Tlo establish that some accountability exists is not to reach a normatively significant conclusion. From a normative standpoint, the relevant question is whether a given set of accountability relationships is appropriate with respect to their type and extent."72 This theory extends the normative debate to the function of the actor as well, recognizing

69. Keohane, Global Governance and Democratic Accountability, supra note 1, at 148. 70. Id. 71. See THESTRUGGLE FOR ACCOUNTABILITY: THEWORLDBANK,NGOS, AND GRASSROOTS MOVEMENTS 12-17 (Jonathan A. Fox & L. David Brown eds., 1998). 72. Keohane, Political Accountability, supra note 5 , at 9.

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"the particular configuration of accountability mechanisms in individual institutions matters."73 Though accountability controls are necessary, both the form and strength of the controls should be, in the first instance, dependent upon the function which the NGO intends to perform, as opposed to analyzing the NGO itself (whether based upon a comparative power analysis or otherwise). NGO legitimacy in international governance is largely derived from claims of representation of under-served, disenfranchised, or otherwise disempowered populations.74 [NGO's] claims to a legitimate voice over policy are based on the disadvantaged people for whom they claim to speak, and on the abstract principles they espouse. But they are internally accountable to wealthy, relatively public-spirited people in the United States and other rich countries, who do not experience the results of their actions. Hence there is a danger that they will engage in symbolic politics, satisfying to their internal constituencies but unresponsive to the real needs of the people whom they claim to serve.75 This is especially acute since the United Nations (UN) defines NGOs as not-for-profit en ti tie^.^" From a normative standpoint, however, NGOs need not be externally accountable to the beneficiaries of NGO action, but rather only to its members (funders, etc.), unless the NGO is acting as a "public" operative arm of a governance regime or affects the rights or choices of its benefi~ i a r i e sThis . ~ ~ helps to resolve the problems arising when NGOs become

73. See Arthur Benz & Yannis Papadopoulos, Is Network Governance Democratic? Different Assessments for the National and International Level (Center for Democratic Governance, first draft, 2003), http://www.demnetgov.ruc.dk/conference/papers/HelsingoerAB-YPI .pdf. 74. See Anderson, supra note 3, at 378. Since the beginning of NGO involvement in international governance, however, NGOs have gained signiticant policy expertise and have gained a new source of legitimacy for involvement in international governance. 75. Keohane, Global Governance and Democratic Accountability, supra note 1, at 148.

76. See supra note 2. 77. See Brtihl, supra note 16, at 378 ("As long as private actors do not decide authoritatively on public policy, they neither have to have a democratic structure nor do they have to be elected by (sectoral) demoi.") (internal citation omitted). Although the definition of "authoritatively" is not clear. this Article agrees with Brtihl's proposition insofar as NGOs are not decision-makers. Where NGOs are decision-makers, even if part of a larger group of decision-makers, then NGOs should be held accountable under democratic accountability mechanisms. However, this Article does not argue such accountability should necessarily extend beyond its rncmbership.

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service providers on behalf of governance regimes but apply incorrect strategies, undermining the effectiveness of other approaches, or diverting funds away from other, more successful ones.78 In such circumstances, the regime must be accountable to the beneficiaries to some extent, and output-based legitimacy concerns contain some validity. However, the NGO's function, rather than its participation, is what determines the choices available to benefi~iaries.~~ Therefore, it does not matter for the beneficiaries who provides the service, but only the manner in which it is provided. Table I provides a basic overview of the typology established by this Article, which shall be developed in greater detail in Part IV.A.~'Political functions are those functions which generally involve some level of representation, and therefore require some modicum of democratic accountability to those represented, the level of which depends upon the level of representation needed and the influence over the process exerted by the NGO. Administrative functions, on the other hand, do not require democratic representation, as such actions are related to performing governance functions designed to improve the management of the governance regime. Representation of internal member interests is therefore correlated to that function, but can be achieved without necessitating democratic accountability; fiscal and hierarchical controls may achieve the needed efficiencies and spending controls to ensure good governance. At all times, however, NGOs are acting as delegated authorities, performing governance functions in lieu of the regime and are therefore primarily responsible to the governments sanctioning the NGO administrative actions. NGOs performing enforcement functions, depending upon the NGO's role in the enforcement process, must ensure accountability both to their memberships and possibly their beneficiaries, as well as to the regime generally. Authority under such a governance arrangement is less one of delegation, however, as NGOs are generally involved in an enforcement role to ensure independence and regime accountability to the global demos. The next Parts will discuss the relationship between

78. See Sonia Arllano-Lopez & James F. Petras, Non-Governmental Organisations and Poverty Alleviation in Bolivia, 25 DEV. & CHANGE555 (1994). 79. See David Held, Law ofstates, Law ofpeoples: Three Models of Sovereignty, 8 LEGALTHEORY 1 , 2 6 (2002). 80. See Grant & Keohane, supra note 4; Keohane & Nye, supra note 5. This table excludes market and reputational controls, since they are not imposed by the listed actors. Additionally, "hierarchical" subsumes all principal-agent relationships, including those of member or beneficiary representation.

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Table 1: Mapping Accountability Controls to NGO Governance Functions

FUNCTIONS

Information

ACCOUNTABILITY HOLDERS

/

hierarchical, fiscal

Limited

High: hierarchical

I

Limited to High: hierarchical. fiscal Limited: hierarchical. fiscal

Service Provision

I

Other Administrative Functions

I

I

I

hierarchical, fiscal

hierarchical,

I None to

I Limited

Limited

/

I I

legal, fiscal, supervisory, peer High: legal, fiscal, supervisory, hierarchical High

High: legal, fiscal, supervisory, hierarchical None to Moderate: supervisory

t Maybe: hierarchical

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the accountability needed, normatively appropriate accountability mechanisms, and the functions performed by NGOs in greater detail.

111. THEVARIEDFUNCTIONS OF N G O S IN INTERNATIONAL GOVERNANCE The deconstruction of accountability theory as applied to NGOs in the previous Part suggests accountability controls depend upon the functions undertaken by NGOs in international governance. Absent such a functional approach, NGOs participate in various governance functions without having duties to participate appropriately.81This Part discusses the varied functions NGOs perform in international governance to illustrate the complexity of the issue and the need for more nuanced accountability theories regarding NGO participation.82

81. Richard Devetak & Richard Higgott, Saving the Social Bond and Recovering the Public Domain, in THEMARKETOR THE PUBLICDOMAIN,GLOBALGOVERNANCE & THE ASSYMETRY OF POWER20 (Daniel Drache ed., 2001). available at http://www.yorku. ca/robarts/archives/pub~domain~pdf/apd~higgottfin.pdf. 82. NGO participation in international governance has blossomed in recent years and has taken many different avenues. See Kal Raustiala, The "Participatory Revolution" in International Environmental Law, 21 HARV.ENVTL.L. REV. 537, 538-39 (1997); Jonathan P. Doh & H. Teegen, Nongovernmental Organizations as Institutional Actors in International Business: Theory and Implications, 11 INT'L BUS. REV. 665 (2002). See generally A. Dan Tarlock, The Role of Non-Governmental Organizations in the Development of International Environmental Law, 68 CHI. KENTL. REV. 61 (1992). While some have distinguished between various different civil society actors based on purpose, function, and funding, limiting evaluation of NGOs to service provision and advocacy, this Article expands the analysis of NGOs to whenever they perform any of the functions associated primarily with non-NGO groups, including social movements, social organizations, and religious groups. See Kaldor, supra note 34, at 12 tbls. 1, 17, 19 (noting although distinct, social movements and social organizations may be considered NGOs). Additionally, the analysis set forth by Kaldor and others is an actor-based model, as opposed to a function-based model, and does not attempt to map different accountability controls to the different actors or functions pcrfonned. Similarly, other authors have discussed the role of NGOs in partnership arrangements with companies and in the creation of corporate codes of conduct or privately-created standards. See, e.g., Jonathan P. Doh & Terrence R. Guay, Globalization and Corporate Social Responsibility: How Nongovernmental Organizations Influencc Labor and Environrncntal Codes of Conduct (manuscript on file with Brooklyn Journal of International Law); Bas Arts, "Green Alliances" of Business and NGOs: New Styles of Self-Regulation or "Dead-End Roads?", 9 COW. SOCIALRESP. & ENVTL.MGMT.26 (2002); Adelle Blackett, Global Governance, Legal Pluralism and the Decentered State: A Labor Law Critique of Codes of Corporate Conduct, 8 IND. J . GLOB.LEGALSTUD. 401 (2001). See also U.S. DEP'T OF LABOR,THE APPAREL INDUSTRY AND CODESOF CONDUCT: A SOLUTION TO THE INTERNATIONAL CHILD LABORPROBLEM?124-207 (1996), available at http://www.dol.govlILAB/medialreportsl

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"[Public-private partnerships] can . . . be classified according to their purposes and function into one of three categories," either rule and standard setting, rule implementation, or service provision.83 This model, established by Borzel and Risse, is a very useful start to this Article's analysis, despite excluding an examination of NGO participation when performing political or lobbying functions.84 This Article follows the same basic process in categorizing NGOs by function, with some slight variations and greater detail. Despite this greater detail, of course, the following categorization by no means provides an exhaustive list of functions NGOs may perform in governance regimes, but it does provide a basic categorization and framework of NGO functions, thereby establishing a starting point for more nuanced discussions of NGO participation in international governance.

A. Policy Formulation Traditional scholarship on NGO participation in international governance has focused on NGO involvement in the creation of norms and policies. Thus begins this Article's function-based analysis. Although direct NGO involvement is "less frequent in the areas of international rule setting and implementation,"85it nevertheless exists and is likely to increase in the future.86NGOs performing these functions are often likened to Kaldor's analysis of social movements, which depend upon the ability to iiclplapparel1overview.htm; ENVTL. PROT. AGENCY,STATUSREPORT ON THE USE OF ENVIRONMENTAL I,ABEI,SWORT.DWTDE (1993); Tanja A. Btjrzel & Thomas Risse. PuhlicPrivate Partnerships: Efective and Legitimate Tools of Transnational Governance?, in COMPLEXSOVEREIGNTY:RECONSnTUTlNG POLITICAL AUTHORITY IN THE '~'WENTY-FIRST CENTURY195, 2 0 3 4 6 (Edgar Grande & Louis W. Pauly eds., 2004) (noting NGO involvement in the broad definition of governance through self-regulation in the shadow of hierarchy or regime-imposed rules and through independent self-regulation adopted by regimes). Privately-created standards later adopted by a governance regime are also beyond the scope of this Article, as NGOs creating such private standards were not part of what might be termed a public-private partnership in the formulation of those standards. See Borzel & Kisse, supra, at 204. 1 do not address these arrangements which, under a broad definition of governance, might be considered such. Rather. I restrict my analysis to NGO roles in formulating policies adopted by international governments and in international governance as it relates to government-sanctioned and authorized action intended to replace or assist a function otherwise performed by a government institution or its agent. See supra note 1. 83. Borzel & Risse, supra note 82, at 199 (noting public-private partnerships might be categorized by ways in which they regulate behavior). 84. See id. at 198. 85. Borzel & Risse, supra note 82, at 204. 86. See id. at 2 0 4 4 6 .

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mobilize members into action." This, in a sense, is a reliance upon the "market accountability" m e ~ h a n i s mAs . ~ ~will be shown in the following sections, there are a number of different functions falling within the broad category of policy formulation relying upon the purpose and representativeness of the NGOs seeking to perform those actions.

1. Agenda-Setting Agenda-setting is one of the most important governance functions an organization can perform, as it places items onto the table for discussion and analysis, initiating the possibility of governance changes.89Generally, agenda-setting functions are limited to State actors in international governance regimes. However, where NGOs are instrumental in the formulation of the overarching policy framework or where they are incorporated into a state's delegation directly, NGOs may have the ability to set the agenda for discussion. The World Conservation Union (IUCN) is the proto-typical example of this. The IUCN drafted the first version of the Convention of Biological Diversity and then was successful in setting the agenda of the Convention's negotiations.90 Agenda-setting is important for accountability purposes since whoever controls the agenda has control over the scope of the governance system and its ability to change over time. Self-interest may dominate such agenda-setting formulations, as actors with an interest in the status quo may reject change through the formulation of the agenda. 2. Norm and Rule Formulation

Norm and rule formation, or rule-setting, is the most contentious role NGOs play in international governance. Some suggest such a role im. ~ ' this Article does not tackle this plies a loss of State s ~ v e r e i ~ n t yWhile

87. See Kaldor, supra note 34, at 22. 88. Keohane & Nye, supra note 5, at 5. 89. Although awareness building is generally considered an agenda-setting function, this aspect of agenda-setting is evaluated in the general participation section below. For the purposes of this section, agenda-setting is limited to formalized processes by which participants in a governance regime place issues on the table for negotiation and action. See P.J. Simmons & Chantal de Jonge Oudraat, Managing Global Issues: An IntroducLEARNED3, 12 (P.J. Simmons & Chantal de tion, in MANAGING GLOBALISSUES:LESSONS Jonge Oudraat eds., 2001). 90. See Briihl, supra note 16, at 373. 91. See generally Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and the "Unregulated" Marketplace, 18 CARDOZO L. REV. 957, 958 (1996) (sug-



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issue, it does recognize NGO involvement in rule-setting can be legitimized. NGOs have successfully participated in rule-setting nationally,92 as well as in intergovernmental organizations and through independent

initiative^.^^ The extent of NGO involvement in rule-setting, like any other functional role an NGO might take, varies significantly. NGOs are primarily involved as rule setters through incorporation into official delegations, which has occurred in the nuclear non-proliferation treaty regime, for instance.94 However, NGOs might also be involved in rule-setting in their own right. Amnesty International was crucial in shaping the Convention Against Torture and in establishing the International Criminal Similarly, the lnternational Campaign to Ban Landmines had the right to make statements and table treaty language (though not to vote) during negotiations of the Convention on the Prohibition of AntiPersonnel and mines.^^ To a lesser extent, NGOs are involved in the World Trade Organization and help to shape its outcomes.97 A shining example of the role of NGOs in rule-setting is found in the World Commission on Dams (wcD).~* WCD consists of the World gesting that nations cede some sovereignty to non-governmental organizations such as the WTO). 92. See generally Philip J. Harter, Assessing the Assessors: The Actual Performance of Negotiated Rulemaking, 9 N.Y.U. ENVTL.L.J. 32 (2000): Cary Coglianese, Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Hurter, 9 N.Y.U. ENVTL. L.J. 386 (2001); Jody Freeman & Laura I. Langbein, Regulatory Negotiation and the Legitimacy Benefit, 9 N.Y.IJ. ENVTL.L.J. 60 (2000); Siobhan Mee, Comment, Negotiated Rulemaking and Combined Sewer Overflows (CSOS): Consensus Saves Ossification?, 25 B.C. ENVTL.AFF.L. REV.213 (1997). 93. See Briihl, supra note 16, at 373-74. 94. See Borzel & Risse, supra note 82, at 199. DECLARATION OF HUMAN 95. See WILLIAMKOREY,NGOS AND TFE UNIVERSAL RIGHTS:"A CURIOUS GRAPEVINE" ( 1998). 96. See Motoko Mekata, Building Partnerships Toward a Common Goal. Experiences of the International Campaign to Ban Landmines, in THETHIRDFORCE:THERISE OF TRANSNATIONAL CIVILSOCIETY 143 (Ann M. Florini ed., 2000). 97. See generally Daniel C . Esty, Why the World Trade Organization Needs Environmental NGOs, IW'L CTR. FOR TRADE & SUSTAINABLE DEV., available at http:Nwww.ictsd.orglEnglish/esty.pdf (last visited Aug. 29, 2005) (discussing the role of NGOs in the WTO, and arguing for expanded formal involvement). See also Peter Sutherland, The Doha Development Agenda: Political Challenges to the World Trading System-A Cosmopolitan Perspective, 8 J . INT'LECON.L. 363, 374 (2005) (discussing the WTO Secretariat's interest in creating a low-level partnership between the WTO and NGOs). 98. See Sanjeev Khagram, Toward Democratic Governance for Sustainable DevelFORCE: opment: Transnational Civil Society Organizing Around Big Dams, in THETHIRD

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Bank, national governments, private industry, and ~ ~ 0Although s . the ~ ~ WCD7s work is advisory, it is a powerful source of international "soft law."100Indeed, WCD has been nearly universally lauded as a successful experiment to involve NGOs in rule-setting without undermining the authority of the regime or stymieing negotiations and has led to high quality outcomes considered unattainable under different circ~mstances.~~' Norm and rule formation begs slightly different questions regarding NGO accountability than does agenda-setting. Here, representation of issues and interests is important to ensure organizational accountability to its membership, and in some cases, its beneficiaries. 3. General Participation and Lobbying The most widely recognized role of NGO participation in international governance is one of lobbyist.102NGOs are renowned for their ability to mobilize public awareness and opinion and catalyze action on particular issues. 103 This differs from the agenda-setting function insofar as NGOs do not have the right to set the agenda, but due to the force of NGO lobbying, issues are placed upon the agenda by other governance actors. Examples of NGO influence, both positive and negative, in international governance abound. NGO pressure is widely recognized as catalyzing the formation of the North American Commission on Environmental Cooperation (NACEC) under the North American Free Trade

THE RiSE OF TRANSNATIONAL CIVILSOCIETY83 (Ann M. Florini ed., 2000); see WORLD COMM'NON DAMS(WCD), PROJECTAND FINANCIAL REPORT(2001), available at http:// www.damsreport.orgidocs/wcdfinrpt.pdf.The WCD was replaced by the Dams and Development Program in September 2001. 99. Khagram, supra note 98, at 83. The WCD was established in 1998 under the sponsorship of the World Bank and the IUCN. WCD, Outline of the WCD: Introduction, http://www.dams.org/commission/intro.htm (last visited Aug. 20,2005). 100. See generally Kader Asmal, Introduction: World Commission on Dams Report, Dams and Development, 16 AM.U . INT'L L. REV. 141 1 (2001). 101. See WCD, supra note 98, at 2 ("Many felt that the contested nature of the dams debate would pull the Commission apart."); id. at 26 ("The multi-stakeholder process followed by the Commission led to recommendations for a new way forward that no single perspective could advocatc on its own."). 102. Simon Zadek and Murdoch Gatward, Transforming the Transnational NGOs: supra note 30, at 227. Social Auditing or Bust?, in BEYONDTHE MAGICBULLET, 103. Ann Marie Clark, Non-Governmental Organizations and their Influence on International Society, 48 J . INT'L AFF. 507, 510 (1995); Nancy Lindborg, Nongovernmental Organizations: Their Past, Present, and Future Role in International Environmental ENVIRONMENTAL TREATYMAKING5 (Lawrence SussNegotiations, in INTERNATIONAL kind et al. eds., 1992).



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Agreement (NAFTA),"~ for dismantling negotiations of the Multilateral Agreement on ~ n v e s t r n e n tand , ~ ~for ~ assisting in the creation of the Convention on the Prohibition of Anti-Personnel andm mines."^ Like the Kosovo Transition Council, which was comprised of political parties, religious leaders, and representatives of ethnic minorities, these interna-

tional governance discussions afforded NGOs the opportunity to influence State action, without providing any real political power to the ~ ~ 0 sThe . impact ' ~ ~ of NGO involvement in such lobbying situations depends upon the willingness of both the governance regime and the governance actors within the regime to listen to and adopt NGO positions. Lobbying activities are another political governance function which counsels unique accountability controls. Lobbying may or may not imply a sense of representation of affected persons, which may counsel external accountability to NGO beneficiaries, may only require internal accountability to ensure adequate member interest representation, or may require no representativeness, depending upon the issue and the purpose with which the NGO claims to act. There is little need, however, for external accountability to the regime, apart from perhaps ensuring participating NGOs do not knowingly provide false information or omit information, as the organization can dismiss NGO arguments quite readily.lo8

104. PIERRE MARC JOHNSON & AND& BEAULIEU, 'I'HE ENVIRONMENT AND NAP?'A: UNDERSTANDING AND hlPLEMENTINti THE NEW CONTINENTAL LAW2 (1996); Fredric Menz, An Environmental Policy for North America Post-NAFTA, NO. AM.OUTLOOK, Mar. 1994, at 11. 105. See generally Rodney Bruce Hall, Private Authorify: Non-State Actors and Global Governance, 27 HARV.INTI>. REV.2 (2005). 106. Jost Delbriick, Exercising Public Authority Beyond the State: Transnational Democracy and/or Alternative Legitimation Strategies, 10 IND. J. GLOBALLEGALSTUD.29, 41 (2003); Steve Charnovitz, The Emergence of Democratic Participation in Global LEGALSTUD.45,54 n.30 (2003). Governance (Paris, 1919), 10 IND.J. GLOBAL REPORTNO. 100: KOSOVOREPORTCARD 107. See INT'LCRISISGROUP,ICG BALKANS 28 (2000); INT'LCRISISGROUP,ICG BALKANS REPORTNO. 97, ELECTIONS IN KOSOVO: MOVING TOWARD DEMOCRACY? 2 (2000). 108. The circumstances surrounding the dismissal of NGO arguments may affect, either positively or negatively, the perceived legitimacy of the governance regime. Therefore, dismissal may not be so readily done for political reasons. However, the power to dismiss arguments does exist and can be exercised, especially if the regime's legitimacy is high.

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B. Administrative Duties Administrative duties differ from political activities because ruleimplementation is the function, rather than rule-setting. As noted above, NGO participation in rule-implementation is somewhat minimal, though less so than in rule-setting activities.lo9These governance functions have come to being as international organizations and networks have sought to regulate behavior, rather than simply establish norms to be implemented at the national level. This specificity has necessitated a more complex governance structure, and as a result of institutional or systemic capacities, has sometimes involved NGOs in the implementation of such regimes. The literature on NGO participation in international governance has focused little on NGOs acting in an administrative capacity. It is appropriate, however, to distinguish democratic and delegatory models of governance.ll0 NGOs performing the functions of a typical administrative agency in the domestic context have authority delegated to them by the international regime and therefore must be accountable to the regime. Questions regarding democratic representativeness of the NGOs themselves are less important, as proceduralizing the actions of agencies is the dominant accountability control applied in such circumstances, not the assurance of direct representation. However, greater representation is increasingly sought in administrative actions, though typically limited to the role of lobbyists or Advisory Councils, so concerns regarding representation may surface to a greater extent in the future. 1. Certification

A powerful role NGOs may play in the administration of international governance is certification of actors for participation in the regime itself. The power to enable participation is significant."' While this Article suggests a shared role in such an accreditation process between the regime, the State hosting the applicant organization, and an independent NGO dedicated to certification issues,112such a system is not always existent. For instance, the Framework Convention on Climate Change, under which the Kyoto Protocol on climate change operates, provides the op109. See discussion supra Part III.A.2. 110. See generally Grant & Keohane, supra note 4. 11 1. See Steve Charnovitz, Two Centuries of Participation: NGOs and International Governance, 18 MICH.J. INT'L L. 183,283 (1997). 112. See infra Part IV.C.5.

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portunity for NGO participation as a certification body, without significant co-regulation by the regime, though delegation authority is retained by the regime. Article 7.2(a) of the Convention provides the possibility NGOs may contract with the Conference of the Parties, where appropriate, to supervise and implement the

onv vent ion."^ Article

12.4 provides

the Conference of Parties with a clear mandate to establish guidelines for the certification of carbon sequestration and other projects under the Clean Development Mechanisms (cDM)."~ Article 12.9 gives the Executive Board authority to provide guidance on participation of various stakeholders, both governmental and non-governmental, in that certification process."5 The Board, as well as its "operational entities," which may include NGOs, could become a further compliance enforcement mechanism under the C D M . " ~As a result, Article 7.2(a) may provide NGOs the opportunity to act in an implementing role in the C D M . " ~ Here, the accountability issues relating to NGO involvement as certification entities are complex. External accountability to the regime is important, but excessive accountability to the regime might undermine the expression of, or adherence to, stakeholder interests which the CDM 113. United Nations Framework Convention on Climate Change art. 7.2(a), May 9, 1992, 1771 U.N.T.S. 107 [hereinafter UNFCCC]. Additional opportunities for non-State participation in the Kyoto Protocol were also suggested for consideration, but have not yet come to fruition. See Chiara Giorgetti, From Rio to Kyoto: A Study of the Involvement of Non-Governmental Organizations in the Negotiations on Climate Change, 7 N.Y.U. ENVTL.L.J. 20 1, 2 13 (1999). See also Report of the Subsidiary Body for Scientific and Technological Advice, IJNFCCC, 2d Sess., Provisional Agenda Item 7, at 11, U.N. Doc. FCCCISBSTAI199614 (Feb. 2, 1996) [hereinafter Subsidiary Body Report] (pushing the consideration of greater NGO participation). Since most of the proposed requirements depend upon host country implementation, as opposed to the CDM administrative structure, they are not addressed in this Article. Id. at 6. See also Peggy Rodgers Kalas & Alexia Herwig, Dispute Resolution Under the Kyoto Protocol, 27 ECOLOGY L.Q. 53, 128 (2000) ("Where dispute settlement regimes and international tribunals deny access to non-State actors, the ability of domestic courts to decide disputes under international law and to enforce their decisions domestically is particularly salient."). 114. Kyoto Protocol to the United Nations Framework Convention on Climate Change art. 12.4, Dec. l I, 1997, 37 I.L.M. 22,38 (1998) [hereinafter Kyoto Protocol]. The CDM authorizes developed countries to purchase carbon sinks and other nature-preserving or enhancing projects in order to decrease their total greenhouse gas emissions and achieve their greenhouse gas reduction targets. 115. Id. art. 12.9. 116. See Catherine Regdwell, Non-Compliance Procedures and the Climate Change INTERConvention, in GLOBALENV'T INFO. CTR., GLOBALCLIMATEGOVERNANCE: THE KYOTOPROTOCOL AND OTHER MULTILATERAL REGIMES~ h 3.. at LINKAGES BETWEEN 22 (1998), available at http://www.geic.or.jp/climgov/O3.pdf. 1 17. See supra text accompanying notc 1 13.

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seeks to support.118Despite this, internal representation seems of little importance, as does external accountability to beneficiaries, since such representation would disfavor other relevant interests.

2. Standard Setting NGOs are involved on a somewhat limited basis in actual standard setting in the administrative context. However, where NGOs do have such authority, the power they wield is tremendous. While the majority of scholars treating this subject focus on private standards (adopted later by international regimes, domestic governments, or industry),119this Article deals only with those standards established by NGOs through a public international governance system. While limited in its analysis, this Article does not agree with most scholars who posit that the International Organization for Standardization's (ISO) standards are completely informal and private. Instead, this Article views IS0 as somewhere between wholly informal and formal, since its members come from national standards bodies,'20 but are not exclusively comprised of government entities.12' For instance, the American National Standards Institute, a member of ISO, is comprised of government and non-governmental

118. UNFCCC, supra note 113, art. 4.l(i). 119. See, e.g., Colin Scott, Private Regulation ofthe Public Sector: A Neglected Facet ofContemporavy Governance, 29 J. LAW& SOC'Y56, 74 (2002) ("[Many] non-statutory private regulators operate complete regimes in the sense of having the capacity to set standards, to monitor and enforce without the intervention of other organizations. Where this is the case, they wield more power than those public regulators which are constrained by the need to follow standards set by legislatures or government departments and to pursue litigation in order to apply legal sanctions. There is thus a remarkable concentration of private power over public organizations. This is perhaps most striking with those private regulators operating internationally whose judgments on such matters as financial or fiscal credibility, probity or greenness significantly affect decisions of notionally democratic governments."). See also Peter M . Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 INT'L ORG.NO. 1, at 1 (1992). Such regulation may be desirable to promote international harmoni~ation,make transactions more secure, avoid harsher command-and-control type regulation, or to respond to market accountability forces. See Virginia Haufler, Private Sector International Regimes, in NON-STATE I Y IN THE GLOBAL SYSTEM121, 127 (Richard A. Higgott et al. eds., ACTORSAND AUTHORI 2000). 120. See JAMES R. EVANS& WILLIAM M. L ~ S A YTHE , MANAGEMENT AND CONTROL OF QUALITY 488 (3d ed. 1996). See also Karstin Ronit & Volker Schneider, Global Governance Through Private Organizations, 12 GOVERNANCE 243 (1999). 121. Haufler, supra note 119, at 127.



organization^.'^^ Therefore, this Article views the I S 0 standards as nonbinding standards created through public-private partnerships and therefore within the purview of this Article. A more powerful example of NGO involvement in standard-setting, however, is the International Labour Organization (ILO). The ILO, an inter-governmental organization designed to protect workers from exploitation and poor working conditions, provides a role for NGOs, primarily trade unions, in standard-setting.'23 For example, NGOs worked as members of the ILO to pass the ILO Minimum Age Convention No. 138 regarding child 1ab0r.I~~ This Convention has been ratified by approximately 141 countries, some of which have a history of using very young child 1ab0r.I~~ The actual impact NGOs have on the content of these standards is uncertain.'" However, State delegations include four members: two representatives from government, one representative of employer interests, and one representative of worker interests.'27 Each deligate is provided an individual right to vote, so NGO votes do matter.'28 While many of the 1LO's standards are non-binding recommendations, including codes of conduct, resolutions, and declarations, these standards 122. Lee A. Tavis, Corporate Governance and the Global Social Void, 35 VAND. J . TRANSNAT'L L. 487,50647 (2002). 123. See About the ILO, http://www.ilo.or~public/english/about/ (last visited Aug. 29, 2005). 124. ILO Convention Concerning Minimum Age for Admission to Employment (C138), June 26, 1973, 1015 U.N.T.S. 297. See also ILO, Subregional Office for Southem Africa: SKO-Harare, Child Labour: Background Paper. http:llwww.ilo.orglpubliclenglisWregionlafprolmdthararelaboutlchildlabour.htm (last visited Aug. 20, 2005) ("As is the case with all ILO standards, Convention No. 138 is the outcome of a tripartite standard setting procedure, involving Governments, as well as Employers' and Workers' Organizations."). 125. See 11,O: II,OLEX Database on International Labour Standards, http:llwww.ilo. org/ilolex/cgi-lex/ratifce.pl?C138 (last visited Aug. 20, 2005): Frank RenC Lopez, Corporate Social Responsibility in a Global Economy Ajfer September I I : Projits, breedom, and Human Rights, 55 MERCER L. REV. 739, 774 (2004) (noting how many countries OF INT'L LABORAFF.,U.S. DEP'T OF have ratified various 1LO conventions); BUREAU LABOR,BYTHE SWEAT AND TOILOF CHILDREN: EFFORTS TO ELIMINATE CHILD LABOR.ch. 111, tbl. 111-1 (1998), http:llwww.dol.govlilabhedia~reportslic1pl~~eat5/toc.htm (last visited Sept. 3, 2005). 126. See Borzel & Risse, supra note 82, at 202-03; Charnovitz, supra note 111. at 21619. 127. Constitution of the International Labour Organization art. 3, para. 1, June 28, 1919, available at http:llwww.ilo.orglpubliclenglishiabout/iloconst.htm. 128. See id. art. 4, para. 1.

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do have the weight of "soft law."129Disputes regarding the definition of many of these voluntary standards are interpreted by the 1 ~ 0 . l The ~ ' ILO is also involved in the creation of treaties, which establish binding labor and workplace standards, though its role is largely limited to lobbying and agenda-setting in treaty form~lation.'~~ While the ILO is not the only body establishing international corporate codes of conduct, it is the most influential source of "soft law" regarding labor and workplace standards and has the unique ability to enforce its codes.'32As a result, accountability is important to ensure proper NGO participation in the ILO standard-setting. While the level of external accountability to the regime is less important when the regime can ensure countervailing interests are represented in the standard-setting process, external accountability to beneficiaries and internal accountability to members may be important to ensure a fair and balanced standard-setting process. 3. Training and Information Provision

Training administrators and others is a well-known role of NGOs in international governance. capacity-building organizations working with the UN Development Programme, for instance, focus on interorganizational learning and training,'33 serve as experts to governance actors,'34 and gather information. These NGOs often act in an advisory capacity for international governance regimes, serving as "epistemic

129. See, e.g., Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, adopted by Governing Body of the International Labour Office, International Labour Organi~ation,204th Sess. (1977), http://www.ilo.org/public/english/ standards/nom/sources/mne.htm#added, revised, Codes of Practice, International Labour Organization (2002), http:l/www.ilo.orglpublic/english/standardslnom/sources/codes. htm. See generally Mary Ellen O'Connell. The Role of Soft Law in a Global Order, in COMMITMENT AND COMPLIANCE:THE ROLE OF NON-BINDING NOMS IN THE INTERNATIONAL LEGALSYSTEM 100, 100-14 (Dinah Shelton ed., 2000). 130. See Doh & Guay, supra note 82, at I 1. 131. See About the ILO, supra note 123. 132. See Doh & Guay, supra note 82, at 11-12, 18 (discussing the OECD 1976 Guidelines for Multinational Enterprises, which was revised in 2000 to allow NGO consultation, and the Global Compact, which provides an NGO role in monitoring compliance). 133. See Brown et al., supra note 60, at 18. 134. L.E. SUSSKIND,ENVIRONMENTAL DIPLOMACY: NEGOTIATING MORE EFFECTIVE GLOBALAGREEMENTS 49-53 (1 994); Steve Charnovitz, Participation of Nongovernmental Organizations in the World Trade Organization, 17 IJ. PENNJ. INT'L ECON.L. 331, 335-39 (1996).


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communities" in policy f o r m ~ l a t i o n . In ' ~ ~fact, "[slince 1993, the number of states that have appealed to NGOs as ad hoc experts in procedures and development of international agreements has increased tremendously."'36 The United States, for instance, incorporates NGOs into international policy making through the Federal Advisory Committee Act (FACA), which provides a role for NGOs to advise United States representatives on international policy issues and ensure appointments to federal committees are "fairly balanced in terms of the points of view represented."I3' While the participation of NGOs as members of a policy Advisory Council is limited and controlled by other governance actors, usually State delegation^,'^^ such participation, when it does occur, can be quite infl~entia1.l~~ Indeed, these committees have often engaged in important international regulatory negotiations, also known as "reg-neg." It has even been claimed NGO advisors determine much of World Bank The UN system of Working Groups is probably the best example of the involvement of NGOs in Advisory Councils. Working Groups are commissioned to review technical details of a proposal or provide information and guidance in relationships with particular groups, including indigenous communities, women, children, and other^.'^' While these

135. See generally Haas, supra note 119. 136. Mariella Pandolfi, Contract of Mutual (1n)DifSerence: Governance and the Humanitarian Apparatus in Contemporary Alban~aand Kosovo, 10 IND. J . GLOBALLEGAL Srrm. 369,372 (2003). 137. 5 U.S.C. app. 2 $ $ 5, 10 (1972). See, e.g.. 7 U.S.C. $ 5843 (2001). See also Cargill, Inc. v. United States, 173 F.3d 323 (5th Cir. 1999); Press Release, Earthjustice, Federal Court Orders Bush Administration to Add Environmental Representative to Chemical Trade Advisory Panel (Jan. 21, 2003), http://www.earthjustice.org/news/display. html?ID=53 1. 138. For instance, the chair of any advisory committee is usually a government representative who has the authority to choose representatives. See, e.g., 7 U.S.C. jj 5843 (2001). Further. all interests need not be represented equally to meet the FACA. 60 Comp. Cien. 386,387 (1981). 139. See Charles C. Caldart & Nicholas A. Ashford, Negotiation as a Means ofDeveloping and Implementing Environmental and Occupational Heulth and SaJety Policy, 23 HARV.ENVTL.L. REV. 14 1, 14344, I64 (1999) (discussing an OSHA advisory committee's negotiated rulemaking for coke oven emissions and noting that often such negotiated rulemaking occurred under the auspices of the FACA). 140. See Citizen's Groups. The Non-governmental Order. ECONOMIST,Dec. 11, 1999, at 20, 21 ("From environmental policy to debt relief, NGOs are at the centre of World Bank policy. Often they determine it."). 141. See Office of the United Nations High Commissioner for Human Rights Homepagc, http://www.ohchr.orgienglishlissues.index.htm (last visited Aug. 25, 2005); Officc


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Working Groups operate outside the purview of official UN policy making circles, they report to various UN committees and have substantial legitimacy.142Membership on these Working Groups is therefore highly prestigious, especially since Working Groups are treated as insiders in the UN system, are accorded significant access privileges, and may wield significant power as expert bodies. The level of Working Group influence varies by committee and issue, but can be quite powerful and frame entire negotiation processes, formulate draft texts, or even reject negotiated s o ~ u t i o n s . ' ~ ~ In the case of Advisory Councils or training activities, the accountability question is about who has the right to provide information or be treated as experts. There are also questions related to the quality of the information provided. All of these concerns tend toward issues of competence, rather than issues of representation. Accordingly, participation in Advisory Councils represents a functionalist approach to international governance and must be cordoned through delegatory models of accountability. For accountability purposes, this is the least problematic of the administrative functions an NGO may perform. Accountability concerns focus mainly around the production and content of information, ensuring the information is full, fair, and accurate.'44 As such, training and information is supposed to be largely objective, and concerns about representativeness are limited. More important is external accountability to the organization to ensure it is not misled by the NGO providing the information. 4. Service Provision Some authors have categorized NGOs partially by function, classifying them as operational- or advocacy-oriented.'45However, the classification of the United Nations High Commissioner for Human Rights, Fact Sheet No. 27: Seventeen Frequently Asked Questions about United Nations Special Rapporteurs, available at http:llwww.hrilcdfortherecordCanadddocumentationlother/sheet27.htm (last visited Oct. 12, 2005); Working Group on Indigenous Populations Homepage, http:/lwww. unhchr.chlindigenous/mandate.htm(last visited Aug. 25, 2005). 142. See Fact Sheet No. 27, supra notc 141. 143. See, e.g., Lori A. Nessel. "Willful Blindness" to Gender-Based Violence Abroad: United States' Implementation of Article Three of the United Nations Convention Against Torture, 89 MINN.L. REV. 71, 90 n.72 (2004) (noting the involvement of a Working Group in the formulation of the Convention Against Torture). 144. See Wapner, supra note 50, at 203. 145. Leon Gordeneker & Thomas G. Weiss, Pluralizing Global Governance: Analyti3640 cal Approaches and Dimensions, in NGOS, THEUN, AND GLOBALGOVERNANCE

Non-State Actors and International Law NGO ACCOUNTABILITY CONCERNS of NGOs as operational is limited primarily to the deployment of serv i c e ~ . 'While ~ ~ the preceding sections have illustrated howNGO involvement in the enforcement of international governance systems extends beyond the simple deployment of services, service provision by far constitutes the main avenue o f NGO partk;pat;on in the enforcement and furtherance of international governance systems.'47 NGOs are good actors in this capacity as they are generally more responsive to beneficiary needs than government institutions. However, they may be less accountable than government institutions in the delivery of those services.'48In fact, [ilt's not as if there is a long list of parties able to deliver medical aid in Chechnya, or run refugee camps in Congo, or vaccinate children in southem Sudan. Whatever the rest of their political agendas, intemational NGOs are often not only the best positioned to do these jobs, they are the only organizations with any possibility of doing them.'49 It is often argued NGOs are best able to provide development assistance and non-profit services such as community health care and the for populations unable management of natural reso~rces'~~--es~eciall~ to pay since they do not fall neatly within any particular category ser(Leon Gordeneker & Thomas G. Weiss eds., 1996); P. van Tuijl, NGOs and Human Rights: Sources ofJustice and Democracy, 5 .I.INT'LAFF.493 (1 999). 146. See Doh & Guay, supra note 82, at 3. 147. In fact, sixty-seven percent of European Union (EU) aid and five percent of Organization of Economic Cooperation and Development (OECD) development aid goes directly to NGOs for the provision of services. See NGOs: Sins ofthe Secular Missionaries, &ONOMlST, Jan. 29, 2000, at 25 (noting the EU's development aid figures); Edwards & David Hulme, Introduction: NGO Performance and Accountability, in BEYOND THE MAGICBULLET.supra note 30, at 3. See also Jody Freeman, Private Parties, Public Functions and the New ildministrative Law, 52 ADMIN.I,. REV. 813 (2000); Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV. 543 (2000). NGOs assuming public functions through contract have received significant attention from scholars, who fear the blurring of lines between the public and the private. See, e.g., Anthony Bebbington & John Farrington, Governments, NGOs and Agricultural Development: Perspectives on Changing Inter-Organisational Relationships, 29 .I.DEV. STUD. 199, 212-14 (1993) (Eng.) (discussing the potentially problematic consequences of NGOs' expanding roles within private and public institutions). See also Aman, supra note 39, at 1704-08. FOR 148. See generally STEVENRATHGERSMITH& MICHAELI,IPSKY, NON-PROFITS HIRE:THEWELFARE STATEIN AN AGEOF CONTRACTING (19%). 149. Anderson, supra note 3, at 375. 150. See, e.g., Zadek & Gatward, supra note 102, at 2 2 9 3 9 ; Goodin, supra note 5, at 3 4 ; J. Fisher, Is the Iron Law of Oligarchy Rusting Away in the Third World?, 22 WORLDDEV. 129 (1994) (Can.).

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viceable by the government.I5' This view is generally held because selfselection of personnel and NGO purpose statements serve to create organizations with officers having altruistic motivations, giving greater assurance they will carry out the provision of public goods and other public interested actions with less rent-seeking relative to other organization~.'~~ However, when non-profits compete for public contracts with forprofit entities, the competitive process may cause non-profits to act similarly to for-profit en ti tie^.'^^ Despite this concern, "[s]ervice providers accrue government funding largely on the basis of client choices rather than on the basis of competitive tendering for contracts providing blocks of funding from government."'54 Additionally, when acting as contract agents, NGOs generally have performance requirements built into the public service contract^.'^^ This illustrates a distinct subject of accountability: results- or outcome-based accountability. Principal-agent accountability issues are also raised when NGOs provide services. In such arrangements, NGOs are held externally accountable by the governments or international governmental organizations with whom they ~ o n t r a c t , ' ~ ~ and by the beneficiaries who seek to ensure the services fblfill their needs, and internally accountable by their members, who determine the manner through which the services are provided. 5. Other Administrative Functions

NGOs might also perform other, more difficult to categorize, administrative functions. For instance, the World Conservation Monitoring Unit compiled State data on trade in endangered species and prepared reports regarding such data, implementing the Convention on International

15 1. See SMITH& LIPSKY, supra note 148, ch. 6. 152. See Goodin, supra note 5, at 21-22. 153. See id. at 3. See also Brown et al., supra note 60, at 16-17. 154. Goodin, supra note 5, at 42. However, competitive bidding processes do exist in a number of circumstances. See id. 155. Id. at 31. 156. See generally Richard Mulgan, Contracting Out and Accountability, 56 AUSTL.J. PUB.ADMIN.106 (1997); Elizabeth Palmer, Should Public Health Be a Private Concern? Developing a Public Service Paradigm in English Law, 22 OXFORDJ. LEGALSTUD.663 (2002); Martha Minow, Public and Private Partnerships: Accounting for the New Religion, 116 HARV.L. REV. 1229 (2003); Paul L. Posner, Accountability Challenges of ThirdA GUIDETO THE NEWGOVERNANCE Party Government, in THETOOLSOF GOVERNMENT: 523 (Lester M. Salmon & Odus V. Elliott eds., 2002).

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Trade in Endangered Species (cITEs).'~' Though taking a more involved administrative role, the Internet Corporation for Assigned Names and Numbers (ICANN) has taken on similar duties. ICANN allocates and assigns internet space, manages top-level domain names (e.g., .corn, .org, and other generic and country-code top level domains), and manages root servers. Although ICANN is largely considered the provision of private standards, domestic governments are involved in the process of establishing the standards, thereby making the process a quasi-public-private partnership.158Accountability for these administrative activities will depend upon the functions performed, but is expected to be primarily based on external accountability controls to the regime, with minimal representational concerns or internal mechanisms needed.

C. Enforcement While the involvement of NGOs in standard setting and general administrative duties of international organizations is currently relatively low (though likely to increase in the future), NGO involvement in the enforcement of established codes has been characterized as moderate in scope and nature.159 1. Arbitration and Mediation Private arbitration is a major way international regimes are enforced. Many international treaties and regimes provide the opportunity for litigants to pursue arbitration as either the sole remedy or one of a litany of potential remedies for violation of provisions of those instrument^.'^^ The leading international arbitration organization providing for the settlement of these disputes is the International Centre for the Settlement of Investment Disputes ( I C S I D ) , ' ~which ~ is an "autonomous international organi-

157. See Edith Brown Weiss, The Five International Treaties: A Living History, in ENGAGNGCOUNTRIES: STRENGTHENING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL ACCORDS 89, 109-1 1 (Edith Brown Weiss C Harold K. Jacobson eds., 1998). 158. See Goodin, supra note 5, at 4. 159. See Doh & Guay, supra note 82, at 10 tbl.1. 160. See Joanne K. Leweler, International Commercial Arbitration as a Model for Resolving Treaty Disputes, 21 N.Y.U. J. INT'L L. & POL.379 (1989). 161. See generally Amazu A. Asouzu. African States and the Enforcement ofArbitral Awards: Some Key Issues, 15 ARB. INT'L 1 (1999); Thomas L. Brewer, International Investment Dispute Settlement Procedures: The Evolving Regime for Foreign Direct Investment, 26 L. & POL'Y INT'L BUS.633 (1995); A. Giardina ICSID: A Self-contained, Non-National Review Syslem, in INTERNATIONALARBITRATION IN THE 21ST CENTURY: TOWARDS "JUDICIALIZATION" AND UNIFORMITY?199 (R.B. Lillich & C.N. Brower eds.,

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zation" established by the World Bank through an international convention and comprised of World Bank Member states.I6' However, other arbitral NGOs also serve to enforce international regimes. For instance, the International Chamber of Commerce's International Court of Arbitration hears more than 500 new cases each year. Having heard over 12,000 cases since its inception in 1 9 2 3 , ' ~the ~ Court is responsible for hearing many of the arbitrations arising under the UN Commission on International Trade Law (UNCITRAL).'~~ Similarly, the American Arbitration Association, operating under the International Dispute Resolution Procedures, also hears cases dealing with international governance issues.'65 Questions about accountability are particularly poignant when NGOs take on the role of mediating or arbitrating disputes. External accountability to the governance regime and NGO independence are important. Internal accountability or external accountability to its beneficiaries may However, some be seen as biased and would be largely ~ndesirab1e.l~~ measure of external accountability to beneficiaries (and the regime itself) may be important in certain contexts where the governing rules require consideration of civil society's participatory needs in dispute resolution. 2. Monitoring

Although untested,'67 some claim under specific conditions, NGO lobbying and information provision can pressure norm-violating govern1994): Carolyn B. Lamm, Jurisdiction of the International Centre for Settlement of InINVESTMENT L.J. 462 (1991); G.R. Delaume, vestment Disputes, 6 ICSID REV. FOREIGN ICSID Arbitration, in CONTEMPORARY PROBLEMS IN INTERNATIONAL ARBITRATION 23 (Julian D. M. Lew ed., 1987); C.F. Amerasinghe, The Jurisdiction ofthe International Centrefor the Settlement oflnvestment Disputes, 19 INDIAN J . INT'L L. 166 (1979). 162. About ICSID, http://www.worldbank.org/icsid/about/about.htm (last visited July 29, 2005). See also Convention on the Settlement of Investment Disputcs Between States and Nationals of Other States, Oct. 14, 1996, 17 U.S.T. 1270, 575 U.N.T.S. 159. (last vis163. See What is ICC?, http:/lwww.iccwbo.org/homelmenu~~hat~is~icc.asp ited July 29, 2005); Introducing ICC Dispute Resolution Services, http://www. iccwbo.org/cou~english/intro~~ourt/introduction.asp (last visited July 29, 2005). 164. For some of the various arbitral rules adopted by UNCITRAL, see the Report of the Working Group on Arbitration on the work of its thirty-sixth session, U.N. Doc. AlCN.91508, available at http:/ldacccssdds.un.orgldoc~DOCIGENN02/533/86/PDFl V0253386.pdROpenElement (last visited Aug. 19, 2005). 165. See also About Us, http:/lwww.adr.orglAbout; International Dispute Resolution Procedures (2003), available at http://www.adr.org/sp.asp?id=22090 (last visited Oct. 13,2005). 166. However, some concerns may be addressed if the impropriety of NGO actions affects its status in future dealings. 167. See Briihl, supra note 16, at 378-79.

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ments into compliance.'68 However, it is not clear whether NGOs undertaking these approaches actually influence State b e h a ~ i 0 r . While I ~ ~ it has been noted most NGOs are not well-suited to serve as comprehensive and exclusive enforcement agents,I7ONGOs have nevertheless been provided the authority in some regimes to act as enforcement agents where States are believed to have violated international r~1es.l'~ For instance, under the Montreal Protocol, NGOs may act as enforcement agents by notifying the Secretariat of non-conforming States, who Although NGOs need in turn may sanction the non-conforming not show injury to enforce the regime, they do not have substantive rights under the Montreal Protocol, and Parties must consent to NGO participation, limiting the effectiveness of NGO enforcement signific a n t ~ ~Conversely, .'~~ under a number of human rights regimes, NGOs are granted locus standi to enforce human rights instrument^.'^^ As a result, "the regular provision of information by the [international NGO] community to various UN human rights committees and national governments has not only greatly improved our knowledge about human rights violations, but also increased compliance with international human rights norms."'75 168. See generally 'I'HE POWEROF HUMANRIGHTS:1NTERNATIONAL NORMSAND DOMESTIC CHANGE(Thomas Risse et al. eds., 1999). 169. See Chandler, supra note 19, at 335-36. 170. See Ruth Mayne, Regulating TNCs: The Role of Voluntary and Governmental INTERNATIONAL BUSINESS:BEYONDLIBERALIZATION 235 Approaches, in REGULATING (Sol Picciotto & Ruth Mayne eds., 1999). 171. See generally Paul Wapner, Politics Beyond the State: Environmental Activism and World Civic Politics, 47 WORLDPOL. 3 11 (1 995). 172. See Briihl, supra note 16, at 373. See also Montreal Protocol on Substances that Deplete the Ozone Layer art. 1 l(5). Annex 111, para. 1, Annex IV(I0). Sept. 16, 1987, 1522 U.N.T.S. 3, 26 I.L.M. 1541, adjusted by London Amendments, June 29, 1990, 20 I.L.M. 537, Nairobi Amendments, June 21, 1991, and Copenhagen Amendments, Nov. 23-25, 1993, 32 I.I,.M. 874; Report of the Second Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, U.N. Envtl. Programme, U.N. Doc. EPlOzL.Pro. 213 (1990), available at http:www.unep.orglozonelMeeting~Documentlmop/02moplMOP~2.asp~cph.htm. 173. See Kalas & Henvig, supra note 113, at 132; Elizabeth P. Barratt-Brown, Building a Monitoring and Compliance Regime Under the Montreal Protocol, 16 YALEJ . INT'LL. 5 19, 564 (1991). 174. See, e.g., Rules of Procedure of the Inter-American Court of Human Rights, art. 23, http:/lwww.cidh.org/Basicoslbasicl8.htm (last visited Oct. 12, 2005). See also William J. Aceves, Actio Popularis? The Class Action in International Law, 2003 U. CHI. LEGALF. 353 (2003). 175. Borzel & Risse, supra note 82, at 209, citing THE POWEROF HUMANRIGHTS: CHANGE (Thomas Risse ct. a1 cds., 1999). INTERNATIONAL NORMSAND DOMESTIC

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Other, weaker versions of NGO participation as monitoring and enforcement agents also exist. For instance, NGOs can participate in the WTO dispute settlement system through submission of amicus curiae brief^."^ Though this is a relatively weak method of enforcement, what is important about the WTO example is, in order to submit a brief, the organization must make clear its objectives, affiliations, funding sources, and plan for uniquely contributing to the resolution of the dispute.'77 Allowing NGOs to participate in the monitoring and enforcement of international regimes raises different accountability concerns than does the situation where an NGO acts as the mediator or arbitrator in a dispute concerning such violations. Similar to the previous discussion, NGOs must remain accountable to the regime itself, ensuring NGOs constrain their charges of States violating international norms to instances where the NGOs actually believe such violations to exist. More significant however, is the importance of NGOs to adequately represent those interests for which they claim to stand. If the enforcement scheme is designed to leave vindication of the rights of unrepresented or disempowered groups to NGOs, then it is essential NGOs be accountable to their beneficiaries. Internal accountability in this circumstance is only marginally important to the proper functioning of the regime. The question then remains as it began: are NGOs sufficiently accountable to the appropriate entities or populations? The following Part answers this question generally in the negative and seeks to apply a function-based analysis to NGO accountability theory. IV. REFININGTHE CRITIQUE:GUIDING NGO INVOLVEMENT

The previous Part illustrated some of the distinct accountability concerns related to particular functions performed by NGOs in international governance. This function-based approach to categorizing NGOs is not unique to this Article. Borzel and Risse categorize NGOs by function and their source of authority in international governance systems, noting NGOs can perform various functions within governance systems based upon cooptation, delegation, co-regulation, or self-regulation in the 176. Esty, supra note 97, at 11. This has been discussed in significant detail by other scholars and will not be reiterated here. See, e.g., Jacqueline Peel, Giving the Public a Voice in the Protection of the Global Environment: Avenuesfor Participation by NGOs in Dispute Resolution at the European Court ofJustice and World Trade Organization, 12 COLO.J. INT'LENVTL.L. & POL'Y4 7 , 6 3 4 4 (2001). 177. See World Trade Organization, Guidelines for Arrangements on Relations with Non-Governmental Organizations, WTOLII 62 (July 18, 1996), available at http://www.



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shadow of hierarchy.'78 This authority-based analysis is useful in understanding the context within which NGO governance functions occur. However, it is only useful in establishing accountability controls insofar as they assist policy makers in determining the needs and purposes of the organization itself. Although recognition of the source of authority may legitimate NGO involvement under some governance systems and not others, such a framework does not suggest differentiated accountability controls when the same function is performed across different governance systems. Rather, differentiation is a function of the overall regime needs and purposes with respect to NGO participation and may significantly vary by type of governance regime. As a result, the authority-based analysis performed by Borzel and Risse is part of a separate accountability analysis and should be treated as an addendum to, but not a replacement of, the framework established by this Article. This Part seeks to define some of the major issues and parameters involved in establishing a functionbased accountability control system. The UN system has the clearest and most direct method of ensuring the accountability of NGOs seeking to participate in governance a c t i v i t i e ~ . ' ~ ~ The 1996 policy established under the Economic and Social Council (ECOSOC) grants "consultative status" to NGOs upon a demonstration of purpose and acc~untability.'~~ While this "consultative status" does not grant NGOs the right to participate in all functions of governance described above in Part 111, the procedure used by ECOSOC to accredit participation is a useful starting point for a discussion of NGO accountability requirements. The ECOSOC procedures require NGOs to provide their charters, bylaws, financial statements, annual reports, sample publications, and explain how their participation will contribute to the goals of the U N . ' ~ 'These requirements are needed to evaluate NGOs7 structure, internal (public) accountability, and external accountability through funding sources.'82 From the application, ECOSOC determines which NGOs may participate, limiting involvement to those having expertise in

178. Borzel & Risse, supra note 82, at 200. 179. Consultative Relationship Between the United Nations and Non-Governmental Organizations, ECOSOC Res. 1996131, U.N. Doc ElRES11996131 (June 25, 1996), available at http://www.un.org/documents/ecosoc/res/1996/eres1996-31.htm [ h e r e i n a h ECOSOC Procedures]. 180. Id. 181. Id.77 1G13, 21. 182. Id.

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the particular matter.lS3Once accredited, NGOs can maintain their "consultative status" by submitting a four-page, double-sided report every four years.184Though this requirement may be criticized as insufficient to ensure accountability, the consultative process generally enables international organizations to assert external accountability controls on NGOs, thereby minimizing "non-cooperative behavior."185 While the UN procedures sign@ a step in the right direction, there are over 6,400 intergovernmental organizations with which NGOs might engage and very few of them have similar accountability procedures.'86 Additionally, the ECOSOC requirements "need to be reconsidered in " ' ~ providing ~ a good light of the increasing number of ~ ~ 0 s . While starting framework, the ECOSOC procedures do not deal with the many variations of international governance activities in which an NGO might participate and are limited to the very narrow "consultative status" akin to participation on the Advisory Councils discussed above in Part III.B.3. Furthermore, the ECOSOC procedures conflate internal accountability with external accountability to the beneficiaries of the ~ ~ 0 . While l ' ~ this creates a significant concern for some governance functions, it clearly demonstrates a failing of the ECOSOC procedures to separate their requirements based upon the functions performed by the NGO. For example, Advisory Councils are highly technocratic epistemic communities designed around expertise.189It is therefore not clear why internal accountability or external accountability to beneficiaries is particularly important to performing the governance function. On the other hand, where "consultative status" implies the right to act as an observer and participant in UN policy making procedures, the necessity and appropriateness of such representation is far greater. The ECOSOC procedures do not distinguish between these two types of NGOs in terms of qualifications to perform various governance functions, illustrating how accountability controls not tailored to function are simultaneously both over- and under-inclusive. 183. Id. 7 9. 184. Id. 17 55,61(c). 185. Borzel & Risse, supra notc 82, at 201. 186. See 200412005 5 Y.B. INT'L ORGS.3 (Union of Int'l Assocs. ed., 41st ed.). L. 187. Edith Brown Weiss, The Rise or the Fall oflnternational Law?, 69 FORDHAM REV.345, 358 (2000) (arguing for application of the Sullivan Principles for accountability); Sullivan Principles for U.S. Corporations Operating in South Africa, 24 I.L.M. 1464, 1496 (1985). 188. See ECOSOC Procedures, supra note 179,y 12. 189. See Haas, supra note 119, at 3.

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Although this Article proceeds primarily from an institutional perspective, similar issues are raised in network governance structures, since "network governance representation is at least partly defined in functional terms."'90 Additionally, even in a network situation, the relationship between representatives and represented has to conform to norms that usually are established in an institutional framework . . . establish[ing] rules which determine the selection of representatives, and [those institutions] have to create formal structures of communication and control, in which rulers can be effectively hold [sic] accountable for their decisions."' As a result, this Article agrees although the process may be somewhat distinct and the accountability needs of network governance structures somewhat different than traditional institutional governance structures, "from a normative point of view, institutional structures of governance are decisive for democratic legitimacy, and this holds true for network In fact, given "[glovernance networks . . . serve as a governance, corrective for deficits of the instit~tions,"'~~ creating distinctions in accountability requirements for networks as opposed to institutions seems normatively suspect.'94 This Part seeks to assist international governance regimes in defining the universe of NGOs eligible to perform a particular governance function. It is not, however, intended to determine whether NGOs should perform a function or which particular NGO or NGOs should be selected to perform particular functions. "[Tlhe essential differences between various types of NGO activity seem to warrant some kind of typology, some way of grouping NGOs by the functions they perform."'95 Grouping organizations by function "would, at a minimum, allow us to approach an individual NGO on its own terms, evaluating the particular organization

190. See Benz & Papadopoulos, supra note 73, at 2. 191. Id. 192. Id. 193. Id. at 3. 194. This issue has significant nuances, including considerations of whether networks increase or decrease institutional ability to perform and maintain its own accountability. See id. at 4-5. These relational issues have not been analyzed to an extent sufficient for the author to conclude whether networks should be held to significantly diff'erent forms or extents of accountability control than traditional institutions. 195. Spar & Dail, supra note 30, at 173 (suggesting classifying NGO activities similar to the Standard Industrial Trade Classification system).

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with regard to its specific purpose."196In evaluating NGOs for base accountability purposes, three major types of accountability exist: (1) intentions or purposes; (2) actions or competence; and (3) outcomes.197Given the resource constraints and distance of international regimes from NGOs, this Article suggests accountability controls be established at both the international and national levels. A. Standardizing Procedures by Function

At the national level, function-based accountability controls are especially crucial to achieving the appropriate level of NGO accountability. At the international level, this need is accentuated by the lack of institutional regime capacity or experience in providing the ever-expanding range of international governance functions, necessitating the inclusion of NGOs and other non-State actors in international governance-a need less significant at the national level. As a result, there is no significant normative difference (putting aside the democratic deficit debate) between international and domestic governance to warrant different approaches to determining when accountability mechanisms should be applied. However, NGO participation in domestic governance may be far more limited in the scope of roles performed, making a function-based approach not economically fea~ib1e.I~~ A function-based approach is particularly important for NGOs because, although it is assumed NGO officials are typically more altruistic than other governance actors (with the possible exception of government officials), "[domestic] non-profit corporate law is in any event unlikely in any jurisdiction to constrain NGO executives to the extent that public officials routinely are constrained by ethics legislation and regulat i o n ~ . " 'While ~ ~ NGOs may have a lower starting baseline of accountability (given existing frameworks), this does not mean we should demand greater total accountability of NGOs than of other governance actors.

196. Id. at 174. The classification system proposed by Spar and Dail would include outcome-based accountability mechanisms involving cross-comparisons. Id. This would enhance competition between NGOs and speaks to the competence issue, but is overly broad in its analysis. Such outcome-based accountability mechanisms are not appropriate in every situation where NGOs perform some governance function. 197. See Goodin, supra note 5, at 1 0 - 1 1. 198. See Benz & Papadopolous, supra note 73, at 1 0 - 1 1. 199. Spiro, supra note 21, at 963.

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As noted above, traditional theory relates the strength of accountability relationships to "the power of the entity being held accountable."200 While significantly different from the view of accountability in this Article, its basic premise is implicitly applicable to the project set out here. In fact, "with respect to legitimacy, the nature of the issue may be an important factor in determining whether we care about procedures for acco~ntability."~~' If power is determined in part by function, as this Article posits, then accountability controls and their strengths should be mapped to those functions. This section seeks to undertake such an effort, moving away from the mainstream literature which aligns accountability mechanisms with type of governance actor or regime.'02 The following sections attempt to map broadly political-, administrative-, and enforcement-related functions to accountability controls analyzed by others. While greater specificity of the functions performed is likely necessary to achieve a truly normatively justified accountability system, this Article seeks to serve as a starting point for such an analysis, leaving further nuances and discussion for another time.203 While this Article believes it exponentially preferable for domestic governments to undertake a harmonization process similar to the one described below in Part IV.B, where domestic governments do not utilize procedures sufficiently similar to those described, international governance regimes must do so in order to properly certify NGO participation and prevent favoritism to NGOs located in countries where such procedures are followed.

200. Keohane, Commentary on the Democratic Accountability of hron-Governmental Organizations, supra note 67, at 479. 201. Keohane & Nye, supra note 5, at 18. 202. See generally Kaldor, supra note 34; Keohane & Nye, supra note 5. 203. See supra Table 1 . One danger in the approach of applying function-based accountability controls at the micro-function level is someone must determine what controls are appropriate for which functions. The greater the number of functions to which accountability controls are applied, the greater the power held by the individual(s) or entity making such determinations. Therefore, it might be best to utilize a second-best approach to function-based application of accountability controls, opting for categories of broadlydefined governance functions. As a preliminary view on this topic, this Article would see the importance of such broad definition dependent upon whether an independent accreditation organization to perform such determinations similar in nature to the process described in Part IV.C.5 is available to perform such determinations and whether NGO participation is intended to hold the governance regime accountable or whether the regime secks to hold the NGO accountable, or both.

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1. Political Functions As described above in Part III.A, NGOs have a very important role to play in policy formulation. It has been claimed "[t]ransnational actors who are not active participants in governance arrangements or negotiating systems [but merely lobby or perform advocacy functions] pose few challenges to existing concepts and theories in political science and international re~ations."~'~ Despite this claim, "policy-making accountability" is still very important in international governance.205As mentioned above, representation issues rightfully dominate the discussion concerning NGO accountability in performing political activities.206 Democratic accountability is important when NGOs perform political functions because they are acting in a representative function. Authority for NGO participation in policy formulation is often justified in terms of intrinsic rights to political participation.207Although not all political functions are necessarily representative in nature, the overwhelming majority of NGOs involved in policy formulation claim to represent some interest, providing them with the legitimacy sufficient to justify participatory rights2'' However, where such representation is crucial to achieve this legitimacy, assurance must be made the NGOs are properly representative. This is important because if an NGO falsely claims to represent a group and is allowed to participate, the NGO may serve to delegitimize or otherwise thwart the true representation of the Although such representation need not be necessarily democratic in nature--especially since democracy is not a universally accepted form of

204. BBrzel& Risse, supra note 82, at 198. 205. See generally Susan Rose-Ackennan, Public Participation in Consolidating Democracies: Hungary and Poland, in BUILDING A TRUSTWORTHY STATEIN POST-SOCIALIST TRANSITION 9 (Janos Komai & Susan Rose-Ackerman eds., 2004). See generally SUSAN ROSE-ACKERMAN, CONTROLLING ENVIRONMENTAL POLICY:THELIMITSOF PUBLICLAWIN GERMANY AND THE UNITEDSTATES (1995). 206. See Charnovitz, supra note 106, at 56. 207. See generally Charnovitz, Two Centuries of Participation: NGOs and International Governance, supra note 1 11. 208. Michael Edwards, NGO Legitimacy--Voice or Vote ?, Feb. 2003, http://www. globalpolicy.org/ngos/credib/2003/0202rep.htm. See also David H . Moore, Agency Costs L. 491,50344 (2004). in International Human Rights, 42 COLUM.J . TRANSNAT'L 209. See generally Robert Charles Blitt, Who Will Watch the Watchdogs? Human Rights Nongovernmental Organizations and the Case for Regulation, 10 BIJFF.HUM. RTS.L. REV. 261 (2004); Edwards, supra note 208.


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governance-many international regimes do base their authority and participatory requirements upon some modicum of democratic legitimacy.210 The literature on democratic, or representational, accountability focuses on NGO representation of beneficiary interests, rather than upon member interests.2" W h i l e t h i s A r t i c l e a c k n o w l e d g e s e x t e r n a l a c c o u n t -

ability to beneficiaries is important where NGOs claim to represent beneficiary interests, not all NGOs which provide services to beneficiary groups or act altruistically on behalf of third-parties claim to speak on behalf of those groups.212Therefore, accountability controls related to the performance of political functions should be determined primarily by representation of the NGO's internal membership. Representation of beneficiary groups is necessary when an NGO claims to represent the views of its beneficiaries; otherwise, representation requirements merely serve to decrease the participatory opportunities of otherwise qualified ~ ~ 0 sAS. a ~result, ' ~ under the democratic or representative model of governance authority, representational, hierarchical, and fiscal accountability controls are important to constrain NGO behavior in the performance of political functions.214 Additionally, peer accountability mechanisms are fairly appropriate under situations where NGOs perform what might be considered political functions, since negotiated outcomes depend upon the willingness of participants to enter into a meaningful negotiation process.215These functions are also most closely aligned with traditional state-state relations, which operate based upon balance of power constraints and are most related to peer accountability constraints in accountability theory. This is therefore relevant under theories considering "accountability as . . . responsiveness, obligation and willingness to communicate with others across the various agencies (the various government departments, quasi210. While this Article conflates representative and democratic accountability for simplicity's sake and to align it more squarely with the existing literature on democratic accountability. adequate representation of some form is crucial for most NGO participation in policy formulation. 21 1. See generally Wapner, supra note 50; Charnovitz, Two Centuries of Particl'pation: NGOs and International Governance, supru note 1 11. 212. NGO Monitor, Different Types of NGOs, http:llwww.ngo-monitor.org1ngoltypes. htm (last visited Aug. 28, 2005). 213. See generally Blitt, supra note 209. 214. As noted above in Table 1, hierarchical controls are considered to include democratic or other representative accountability to members or beneficiaries (where explicitly stated). 215. See Wapner, supra note 50, at 202 (discussing the effects of NGO cooperation and coalitions on accountability).

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governmental organizations and private contractors) constituting the relevant policy community responsible for the 'joined-up government' of, and service delivery in, that sphere."216However, peer accountability controls are only valid to the extent they identify failures to adequately represent member or beneficiary interests, and when peer organizations identifying such failures have the authority to present the regime with such information.217Since peer accountability controls are typically outcome-based, this type of control for the most part will be unacceptable to resolve issues of effective representation. From a regime perspective, then, NGO intentions should be the primary determinant of accountability controls which should be designed by reference to the NGO's structure and ability to uphold its intentions. NGO intentions relate to the motives or purposes with which NGOs act.21RNGOs representing or claiming to represent particular interests must actually attempt to do so. Whether the NGO is able to fully represent the interests of its membership or beneficiary populations is another matter, though it certainly should be an ultimate goal. However, representation need not be perfect in order to be legitimate.219To determine an organization's representativeness, then, the actual level of representativeness should be gauged against the NGO's stated intentions to determine the veracity of their claims. 2. Administrative Functions While intentions dominate accountability controls of NGOs performing political functions, actions (or competence) are most important for determining accountability of NGOs undertaking administrative functions. The role of NGOs in performing administrative duties in international 216. Goodin, supra note 5, at 27 (quoting Mark Considine, The End of the Line? Accountable Governments in the Age of Networks, Partnerships and Joined-Up Services, 15 GOVERNANCE 2 1 , 21 (2002)). 21 7. See Wapner, supra note 50, at 201. 218. Goodin, supra note 5, at 1 1. 219. A simple example from the United States political system demonstrates this: under the "two-party system," the United States' political system is divided into two major groups based upon differing purposes of the two parties. It is axiomatic each member of each party does not adhere to every tenet of his or her party of choice. Instead, members align themselves with groups most closely resembling their own views or representing the interests which are of greatest importance to the members. Indeed, absolute representation of each member's views would preclude effective organization. As a matter of pragmatism, therefore, imperfect representation must be sufficient to justify representation. The trickier question is determining when representation is not sufficiently representative of member or beneficiary interests or views.



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governance is one primarily of functionality for the organization. Generally, a high level of technocratic expertise is required for such activities, and therefore, issues of representation are less significant.220Instead, external accountability to the regime is most important from a regime perspective.

NGO authority to participate as administrative governance actors is derived from the privileges granted by the regime.221NGOs and their represented memberships have no intrinsic rights to participate as administrative actors. Rather, their participation serves instrumental purposes for the regime. As a result, NGO authority and legitimacy are derived from and delegated by the regime and can therefore be proscribed and withdrawn by the regime.222Adequate representation of members or beneficiary groups is therefore not a normative prerequisite to properly serving as an administrative agent of an international regime (assuming authority to perform such a function). Supervisory and legal accountability controls, derived from the power of delegation, are therefore the primary mechanisms used in ensuring accountability. Secondary means of ensuring external accountability to the regime are enforced through budgetary and other fiscal controls, hierarchical controls for managers in their individual capacities, and to a certain extent, peer accountability controls where other NGOs are also involved in the provision of particular administrative duties.223Internal accountability (necessary to ensure membership fees and other base revenue and organizational sources of power are not mismanaged or abused) to members is achieved not through representational accountability mechanisms, but through procedural controls to ensure fiscal (through membership exit and loss of membership fees) and hierarchical ac~ountability.~~~ Action-related accountability concerns dominate administrative act i o n ~ NGO . ~ ~ actions ~ are evaluated to ensure they do not exceed the scope of the mandate provided by the delegating Outcomerelated concerns also exist, but are less significant in the performance of administrative functions, since action-related accountability concerns 220. See generally Goodin, supra note 5, at 23-30 (suggesting homogeny is not necessary because the desire to acheive a negotiated outcome is enough to succeed). 221. Id. at 1. 222. Id. at 3. 223. Id. at 3 4 . 224. Keohane, Political Accountability, supra note 5. at 15. 225. Keohane & Nye, supra note 5, at 27. 226. See Goodin, supra note 5, at l I.

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determine which qualified NGOs participate and require those NGOs to perform their assigned duties. Therefore, if the NGO is to produce documentation or training programs, outcome-oriented accountability mechanisms provide little additional guidance, since NGO authority is derivative and delegated and can be withdrawn if the NGO fails to meet the quality expectations of the regime. Nevertheless, a minimal level of outcome-related constraints should also be imposed to ensure NGOs produce well-researched neutral information, for instance. 3 . Enforcement Functions Different from both political and administrative functions, NGOs' performance as enforcers of the rules of an international regime is derived both from intrinsic rights and instrumental privileges.227NGO participatory rights may be delegated to NGOs by the international regime based upon reasons of expertise or such rights may be intrinsic to ensure regime adherence to the rules established by the regime and its Member As a result of this bifurcated source of authority, NGOs may be held to account by multiple groups: the regime (including the regime's beneficiaries if the regime acts outside its scope of authority), the beneficiaries of the NGO, and, to a lesser extent, the internal membership of the N G O . ~ ~ ~ NGOs performing enforcement functions must maintain accountability to the regime and its purposes to ensure the regime is held to account and for the regime to ensure the NGOs act within the authority properly delegated to them, depending upon the particular enforcement function. NGOs must also ensure accountability to the regime's beneficiaries and the beneficiaries of the NGO, whether internal or external. Generally, however, external beneficiary interests will dominate, and therefore adequate representation of such interests must be assured.230External accountability to beneficiaries, while predominantly achieved through the regime's policies and supervisory mandates, must also be ensured through a modicum of hierarchical accountability to the beneficiaries directly, where such enforcement functions directly affect them. 227. For a discussion of how these rights and privileges interact, see Erik B. Bluemel, Separating Insbumental from Intrinsic Rights: Toward an Understanding of Indigenous Participation in lnternational Rule-Making (forthcoming 30 AM. INDIAN L. REV.(Fall 2005)). 228. See Charnovitz, Two Centuries ofParticipation: NGOs and International Governance, supra note 11 1, at 276-77; Grant & Keohane, supra note 4, at 8. 229. Chamovitz, supra note 11 I , at 277-78. 230. Id. at 278-79.



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While beneficiary accountability is primarily determined by intentions and actions, external accountability to the regime is determined mostly by reference to actions and performance outcomes, especially in the provision of services.231Effectiveness, expertise, and experience are crucial determinants for outcome-based accountability controls. For delegated non-public service provision NGO functions, external accountability to the regime generally is ensured through outcome-oriented supervisory, legal, and fiscal controls.232The basic internal accountability necessary to ensure managerial compliance is achieved through fiscal and hierarchical requirements established (in the framework of this Article) under domestic law. as will be discussed in the next section.

B. Harmonizing Domestic Procedures National governments often have processes by which NGOs are established and verified under domestic law. Recognizing this, it would be inefficient to require international governance regimes to duplicate domestic requirements. Implicit legitimacy is often established through domestic government recognition of NGOs as legal entities.233This legitimacy, however, should not be taken for granted, since the international regime may have interests which are not purely based upon the aggregation of interests of its member As a result, international regimes must validate the rigor with which the national governments apply their accreditation procedures, much as the NACEC evaluates the enforcement of national environmental laws under NAFTA, and apply more stringent requirements where necessary and appropriate.235As a result, domestic procedures should be viewed as baseline requirements for participation in international governance, but should be appended with international requirements where necessary to ensure accountability appropriate to the governance function involved. The view of this Article is efficiency requires domestic governments to certify NGOs as legitimate actors with the international system focusing on legitimizing NGO involvement in particular international governance functions. However, where domestic governments do not have procedures or an effective process of legitimizing NGOs, the international sys23 1. See generally Chamovitz, supra note 106 (discussing examples of NGOs, issues arising from their involvment, and their functions). 232. See generally Grant & Keohane, supra note 4. 233. See Ann M. Florini, Lessons Learned, in T H ETHIRDFORCE:THERISE OF TRANSNATIONAL CIVILSOCIETY 21 I , 233 (Ann M. Florini ed., 2000). 234. See Aman, supra note 39, at 1705. 235. Id. at 1712-14.

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tem must do so to prevent unfairness between countries' NGOs. This Article considers it highly desirable to harmonize the domestic NGO legitimizing processes to both improve the effectiveness of the process itself and to conserve resources. This Article also considers domestic governments far superior in the basic legitimizing process given their proximity to the NGOs and their (typically) preexisting information collection processes. Domestic governments are also most capable of understanding the variety of local organizational structures and purposes and therefore should play a central role in certifying NGOs as eligible for participation in international governance. However, establishing domestic accountability mechanisms for NGOs is no easy task considering the great variety in NGO organizational forms: [Tlhere are wide difference [sic] among NGOs concerning their forms of organisation-formal versus informal, hierarchy versus participation, networks versus federations, centralised versus decentralisation, not to mention differences in organisational culture. Some NGOs are membership organisations; others are governed by boards or trustees. Moreover, the meaning of membership varies.236 Nevertheless, most national governments have, and continue to establish, requirements NGOs must meet to earn a particular, usually special, legal Of particular difficulty is the issue of distinguishing between local and international NGOs and determining what role national governments might play in certifjing such organizations.238There are over 200,000 local NGOs in the developing world alone.239In addition, there are approximately 29,000 international ~ ~ 0 s International . ~ ~ ' NGOs often seek beneficiary legitimacy by allying with local NGOs and are

236. Kaldor, supra note 34, at 24. 237. Requiring national governments to impose some requirements on NGOs prior to allowing their participation in international governance is not new to this Article, as the UN defines NGOs as non-profit organizations, implying those NGOs are established under some domestic legal structure as non-profit entities. See supra text accompanying note 2. 238. Tavis, supra note 122, at 5 10. NGOS AND THE POLITICAL DEVELOPMENT 239. See JULIEFISHER,NONGOVERNMENTS: OF 'IHE THIRD WORLD6 (1998). 240. NGOs with operations in more than three countries are generally considered "international NGOs." COMM'NON GLOBALGOVERNANCE, OUR GLOBALNEIGHBORHOOD: THEREPORTOF THE COMMISSION ON GLOBAL GOVERNANCE 32 (1995); NGOs: Sins ofthe Secular Missionaries, supra note 147, at 25 (referring to the Commission on Global Governance's report).



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frequent sources of funds for their local partners.241Thus, while international NGOs may have greater legitimacy as actors at the international governance level, domestic NGOs have a significant role to play as well. Limiting participation to international NGOs may seriously undermine the funding and effectiveness of domestic NGOs, ultimately to the detriment of local beneficiaries.242Additionally, many, if not all, of the governance functions described above in Part 111 could be performed by local NGOs having the proper level of competence to perform such functions. Therefore, this Article does not discount the participation of local NGOs in international governance as do the ECOSOC procedures.243 However, this Article does recognize the difficulty in relying upon domestic governments to certify international NGOs as potential participants in international governance.244This Article favors (though by no means requires) an alliance between international NGOs and local NGOs to alleviate the disadvantages of limiting participation to either local or international NGOs, especially where beneficiary interests are represented and experience or expertise are important (as in the provision of services). In countries certifying NGOs, domestic accountability requirements generally require NGOs: (1) serve disempowered or underserved populations; (2) are established to promote the public interest; (3) are fiscally responsible so monies do not inure to private individuals; and (4) have an organizational structure holding its managers and directors accountable to its membership through some means.245These basic requirements cre241. See Tavis, supra note 122, at 510: Tarlock. supra note 82. at 6 5 4 6 . 242. For a discussion of the interaction between international and domestic NGOs, see Shelley Inglis, Re/Constructing Right(s): The Dayton Peace Agreement, International Civil Society Development, and Gender in Postwar Bosnia-Herzegovina, 30 COLUM. HUM.RTS.L. REV.65, 107-1 3 (1998). 243. See ECOSOC Procedures, supra note 179. 244. See infra Part 1V.A for a discussion of how this difficulty might be resolved. 245. In the United States, Internal Revenue Code § 501(c)(3) provides the test for organizations not organized for profit, but operated solely for the advancement of social welfare. Of course, for-profit entities can still perform services and other international governance functions. This Article, however, is intended as a direct response to the wealth of literature on NGO accountability. Although this Article only analyzes NGO accountability, its analysis may be portable to other actors performing similar functions for the reasons described above. This Article does not believe NGOs should have a right to participate while other for-profit associations do not. However, the latter may require different accountability controls, an issue not directly addressed by this Article. See Charnovitz, Two Centuries of Participation: NGOs and In~ernationalGovernance, supra note l 1I, at 276; Peel supra note 176, at 73-74; see also supra notes 53, 65. While it is possible different concerns exist regard-

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ate a good base for establishing mechanisms to hold NGOs internally accountable when performing functions associated with international governance. However, "the absence of standard public law safeguards concentrates significant power in NGO secretariats" and may encourage forum shopping or a race-to-the-bottom in NGO domestic regulation.246 Therefore, the following sections call for harmonization of domestic regulation of NGOs to ensure a minimum level of accountability. This minimum level of accountability is based upon the process of legitimizing NGOs as valid actors in any sphere of governance and includes the four accountability controls discussed above. 1. Representation While domestic regimes generally require NGO service-orientation toward underserved or disempowered populations, this requirement is to ensure the NGO operates for a "public purpose," rather than representation of beneficiary interests. Representation controls in this context should ensure members have some hold over policy decisions or agency leadership, such as occurs in a principal-agent relationship.247Therefore, for harmonization purposes, accountability mechanisms should ensure only representation of member interests. External accountability to beneficiaries is not necessary for all governance functions. Therefore, analysis of accountability to beneficiaries, while best done at the domestic level, should not be a requirement harmonized prior to participation, but should be evaluated (by the domestic government) based upon the particular function the NGO seeks to perform. One criticism to this approach is rules governing NGO interactions with local communities can have significant positive consequences on

ing NGOs as compared to other actors, counseling for different or fewer accountability controls, this Article suggests these concerns may be neither rational nor supportable distinctions when NGOs perform governance functions capable of being performed by other entities (even if not equally well). In fact, "it is important for global institutions, international institutions and governments, not to privilege NGOs in debates about social justice." Kaldor, supra note 34, at 27. Additionally, somc have suggested government agencies do not have thc same "ethos of mutuality" as NGOs (though officials would) and therefore should not be full participants in network governance structures. See Goodin, supra note 5, at 4 3 4 4 . Of course, interest polarization may occur with or without government involvement and is usually a more likely outcome than cooperation-based approaches in international governance. See Brown et al.. supra note 60, at 28-32. 246. See Brown el al., supra note 60, at 23-32. 247. See Keohane, Political Accountability, supra note 5, at 8.



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NGO relations with its b e n e f i ~ i a r i e s .As ~ ~NGO ~ memberships are not usually comprised of NGO beneficiaries, it is important to differentiate NGO representativeness from NGO adherence to its intended beneficent goals as well as from representativeness of beneficiary viewsldesires, all of which may differ significantly. The disjuncture between the views and interests of intended beneficiaries and members can significantly impede the effectiveness of NGOs. While this is a sound criticism, it is valid only in relation to the organization's purpose, claims to representativeness, or situations where NGO effectiveness can be decreased by the membershiplbeneficiary disjuncture. Therefore, it shall be discussed along with other NGO purposes below in Part IV.B.3. Although traditionally considered in the context of democratic accountability akin to states, NGOs need not be highly representative of beneficiary interests to perform governance actions.249Some have argued outcome-based measures should be more important than the representativeness of the N G O . ~ ~However, ' this Article does not believe such generalizations are appropriate, and argues different accountability measures must be evaluated in light of the function the NGO seeks to perform, as discussed in greater detail in Part 1V.A. While the requirement NGOs be non-profit entities helps ensure actions in the "public interest" to a certain extent, it has been recognized that NGOs still operate under a profit motive, despite being non-profit, and therefore may not be entirely representative of member view^.^" It is improper to assume NGOs are no more than a mere aggregation of their memberships' interests. Rather, bureaucratic theory suggests NGOs may

248. Craig Johnson, Toward Accountability: Narrowing the Gap Between NGO Priorities and Local Realities in Thailand 5 (Overseas Dev. Inst., Working Paper No. 149, 2001) (arguing internal accountability mechanisms are stronger than many scholars acknowledge). 249. Wapner, supra note 50, at 199; see also Tarlock, supra note 82. at 75. 250. See Delbriick, supra note 106, at 4 1 4 2 (recognizing "providing a stringent legal framework . . . that NGOs would have to abide by in order to be admitted as participants in the international system could enhance their legitimacy"). 251. See Bjorn Moller, "Civil Society Romanticism": A Sceptical [sic] View: Reflections on H&an Thorn's Solidarity Across Borders (unpublished paper), available at http:l/www.ihis.aau.dk/-bmMG0s-SA.doc (last visited Aug. 19, 2005). While this Article considers NGO actors distinct from other potential civil society and economic actors in global governance, a regime may not consider such a distinction important, or, as a second-best alternative, verifying the "public interest" nature of the organization might prove exceedingly difficult. See Peel, supra note 176, at 73-74. In such a case, however, the regime would still need to filter out organizations with improper or falsified purposes, making this analysis mostly pcrtincnt, though with a slightly different focus.


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have public-interest values not derived from any interest-aggregation theory of representation.252As a result, adequate member representation must be viewed in part in terms of process, and not wholly in terms of results, and must ensure the results are not contrary to the purpose of the NGO. Representativeness is difficult to verify,253but local variations demand it be addressed at the local or national level as opposed to the international level. Three indicators, however, may be a useful starting point in determining NGO representativeness: "the institutional ability of [members] to sanction leaders, the de facto capacity of [members] to sanction leaders, and the [organization's] responsiveness to the expressed will of the [members]."254

2. Accountability At the international level, accountability of NGOs generally focuses on analyzing the democratic accountability of ~ ~ 0 sHowever, . ~ ' ~other accountability issues exist and are the dominant forms of control imposed at the domestic level. Because NGO self management and internal accountability procedures are insufficient to guarantee NGO accountability,256various mechanisms to improve internal NGO management have been proposed.257Therefore, despite the fact NGOs can be held accountable to their members through member exit, financial conditionality re-

252. Id. at 5-6. 253. Brown et al., supra note 60, at 25. The actual representativeness of NGOs has also GLOBALGOVERNbeen questioned recently. See ROBERTO'BRIENET AL., CONTESTING AND GLOBALSOCIALMOVE-MENTS 200ANCE: MULTILATERAL ECONOMIC INSTITUTIONS 01 (2000); Martin Wolf, What the World Needsfrom the Multilateral Trading System, in THE ROLEOF THE WORLDTRADEORGANIZATION IN GLOBALGOVERNANCE 183, 197-98 (Gary P. Samson ed., 2001). 254. See Brown et al., supra note 60, at 24-27. 255. See Grant & Keohane, supra note 4. at 13. 256. See generally LEWIS, supra note 44. See also ALAN FOWLER,STRIKINGA BALANCE:A GUIDE TO ENHANCINGTHE EFFECTIVENESS OF NON-GOVERNMENTAL IN INTERNATIONAL DEVELOPMENT (1 997); Helmut K. Anheier, Managing ORGANISATIONS Non-ProJit Organizations: Toward a New Approach (Center for Civil Society, Civil Society Working Paper No. l, 2000), available at http:/lwww.lse.ac.uWcollectionslCCS/ publications/cswp/civil~society_wp.htm. 257. See MICHAELEDWARDS, NGO RIGHTS AND RESPONSIBILITIES: A NEWDEALFOR GLOBALGOVERNANCE 28-37 (2000) (noting a vote alone is no substitute for a voice, and suggesting independent regulation by an external agency, for example, as a means to improve NGO accountability).

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quirements, advisory boards,258and other externally-imposed accountability requirements are often deemed desirable from a national policy perspective. Specifically, financial accountability controls are used to ensure fiscal responsibility of the organization so self-serving "for-proGt" personal motives do not exist.259Hierarchical accountability controls are used to further constrain NGO managers and employees from inappropriate actions and rent-seeking behavior. For this reason, the method of board selection is important to NGO a c c o ~ n t a b i l i t yBoth . ~ ~ ~fiscal and hierarchical controls are more readily obtained and verified at the national level as opposed to the international level. Therefore, requiring controls at the national level in the first instance may make economic sense.

3. Validity of Proffered Goals Another issue best harmonized at the domestic level is the requirement that NGOs serve the "public interest." Definitions regarding the "public interest" will certainly vary by state. In fact, not all States define NGOs as non-profit entities.261Since "moral accountability arises from the mission of the civil society it is important to ensure the legitimacy derived from an organization's NGO status is justified. The requirement NGOs be non-profit entities serves in part to ensure NGOs serve, or in some cases represent, marginalized interests imperfectly serviced or represented by the State. In this sense, some NGOs serve a "second-best"

258. Wapner, supra note 50, at 2 0 1 4 2 ("Many professional institutions use outside experts or boards of directors that watch out for the organization's long-term well-being. These boards are usually comprised of people who are uninvolved in day-to-day operations and therefore possess a broader perspective on the issue area and the organization's political role. Boards can have authority to depose NGO leaders and shape the broad outlines of campaign work. While board members implicitly share the overall normative orientation of the organization and its officials, they come to the group as outsiders. In fact, they are invited onto the board precisely because they have some distance from the organization."). 259. See Brown et al., supra note 60, at 24-27. 260. See Country Plan Presentations: The Philippine Group, in CSRO ACCOUNTB I L I T Y & SUSTAINABILITY: CRITICALLESSONSFROM BEST PRACTICES 73-74 (SE Asia Reg'l Conf., Feb. 18-20, 2002), available at http:/lwww.synergos.org/globalphilanthropy/02/csroproceedings.pdf[hereinafter CSRO ACCOUNTAE%ILITY]. 261. See, e.g., Felicidad Soledad, Accountability as a Sector: The PCNC Experience, supra note 260, at 9 (noting the Philippines did not certify in CSRO ACCOUNTABILITY, NGOs for tax deduction purposes until recently). 262. Kaldor, supra note 34, at 2 1.

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function of representation or ~ e r v i c e - ~ r o v i s i o nHowever, . ~ ~ ~ the legitimacy of distinguishing between NGOs serving underserved populations and NGOs serving more politically powerful associations is normatively suspect. Failure to limit the participation of these more powerful NGOs, however, means increasing NGO participation generally may in fact further disempower underrepresented groups as they must then battle against potential capture of organizations by more powerful ~ ~ 0 s As a result, it is important to link the international regime's goals of NGO participation to the purpose with which the NGO is formulated. The purpose of the NGO is important not only to determine which NGOs are actually serving the public interest but also to ensure NGO institutional competence in particular fields.265Relationships with marginalized populations on specific issues creates a measure of competence important to proper international governance. Although one society may be comprised of marginalized populations which are politically powerful in other societies, this variation does not overcome the significant need to establish a harmonized approach to tackling the issue of NGO purpose to determine whether organizations act for the public-interest or private profit.266

4. Veracity of Proffered Goals Harmonizing domestic requirements for initial NGO certification is insufficient, however, to ensure NGOs are appropriately accountable and formulated at the domestic level. Without a requirement NGOs be evaluated for the veracity of their goals and the imposition of other accountability controls, it will be difficult to weed out NGOs which serve as mere fronts for states seeking increased political power or organizations misrepresenting their purposes or engaging in other fraudulent rentseeking behavior. 263. See Ngaire Woods, Good Governance in International Organizations, GLOBAL GOVERNANCE, Jan-Mar. 1999, at 39, 45. 264. See Robert 0. Keohane & Joseph S. Nye, The Club Model ofMultilatera1 CoopIN A eration and Problems of Democratic Legitimacy, in POWERAND GOVERNANCE PARTIALLY GLOBALIZED WORLD219, 236, 239 (Robert 0. Keohane ed., 2002); Kahler, supra note 5, at 14 (citing Bernard Manin et a]., Introduction, in DEMOCRACY, ACCOUNTAND REPRESENTATION (Adam Przeworski et al. eds., 1999)); Woods, supra note ABILITY, 263. 265. Goodin, supra note 5, at 25. This, of course, assumes application of the UN's definition of NGO. See supra note 2. 266. This is not to say that industry or for-profit associations have no right to participate in international governance. However, this Article is limited to an analysis of N o s , as defined by the UN.

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It has been argued, relative to other actors, intentions play a much greater role in ensuring accountability of the non-profit sector and regimes should continue to focus on the intentions of NGO actors, monitoring NGO intentions undertaken through peer accountability mechan i s m ~ Despite . ~ ~ ~ these claims for the greater use of peer accountability

in holding NGOs to account to their purposes,268fly-by-night NGOs have not been successfully regulated through internal codes of conduct or peer accountability controls.269 Instead, requirements at the national level help validate NGO actions against the purposes with which they are established and are therefore important to ensure long-term NGO accountability and public-interest oriented behavior. As noted above, NGOs in international governance often do not disclose or are not required to disclose their funding sources.270International validation of domestic data is therefore necessary to ensure the veracity of the data collected and NGOs are not merely State funded or controlled organizations. The continued requirement of financial accountability is also important to ensure the organization does not engage in for-profit activities. However, determining whether an NGO has faithfully adhered to its mission and vision can be a difficult task."'

267. See generally Goodin, supra note 5; Grant & Keohane, supra note 4. 268. Goodin, supra note 5, at 26. 269. See Soledad, supra note 261, at 9. 270. Maura Blue Jeffords, Turning the Protestor into a Partnerfor Development: The Needfor b@ctive Consultation between the W7'0and NGOs, 28 BROOK.J . Im'L. L. 937, 982 (2003). 271. See, e.g., Abdi Suryaningati, The YAPPIKA Experience, in CSRO ACCOUNTABILITY,supra note 260, at 12. This Article does not necessarily advocate the use of effectiveness measurements as means to determine the adherence to an organizational mission and vision, both for normative reasons and because of the difficulty of attributing outcomes with NGO actions. See id.; Bugenio M . Caccarn, Jr., h4easuring Results and supra note 260, at 14. Nevertheless, it recognizes Impact, in CSKO ACCOUNTABILITY, such outcome-based measurements may be useful, and therefore applies the three subjects of accountability described by Goodin (intentions, actions, results) to NGO participation in international governance. See Goodin, supra note 5, at 1 0 - 1 1 (noting although the three subjects are not necessarily exhaustive, they do relate to the three main ethical forms of virtue: ethics, deontology, and consequentialism). Although "[nlo non-profit is sensitive only to intentions and wholly unsensitive to results," for participation purposes. it is not clear a results-orientation is appropriate, since a consideration of results may occur when seeking funding, as donors look both at qualitative and quantitative financial accountability. See id. at 16, 25 n.32; Nipa Banerjee, Donor Sharing, in CSRO supra note 260, at 65; Brown et al., supra note 60, at 1G17. ACCOUNTABILITY,

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Often, formal means are lacking to ensure organizations are meeting their stated objectives.272This issue may also be exacerbated by financial conditionality, which may not perfectly align with stated objectives and goals.273In fact, issues of multiple accountability often make coherent management Establishing accreditation procedures at the international governance level may serve to streamline multiple accountability concerns into a single accountability source. This may occur as donors adopt the accreditation procedures used by international regimes, thereby minimizing conflicting accountability concerns and loyalties significantly. While loyalty issues surrounding financing will likely inevitably occur given donor financing preferences, accreditation procedures may be used to ensure only those organizations with goals appropriately aligned with such donor preferences will be financed, rather than allowing NGOs to constantly redefine their priorities to meet donor demands. One concern with such an arrangement, however, is donor financing may be given even greater power under such an arrangement. Only those NGOs whose goals are aligned with donor preferences will receive funding for participation in international governance activities.275NGOs which could normally receive financing upon a redefinition of their goals may be left without funds, causing some populations or issues to go unserved. Whereas these NGOs might have been able to incorporate some of their preferences into a donor-driven project previously and at least to some extent servicing those populations or issues, now those NGOs would be precluded from doing so in the international governance context. Although not precluded from doing so in an informal, nongovernance context, international donors may adopt the accreditation procedures of international regimes throughout all of their financing arrangements, thereby running the risk such a policy might result in sub272. See Johnson, supra note 248. 273. See id. at 5. 274. See id. See also EDWARDS & HULME,supra note 147; David Stark, Ambiguous Assets for Uncertain Environments: Heterarchy in Postsocialist Firms, in THE TWENTYFIRST-CENTURY FIRM: CHANGINGECONOMICORGANIZATION IN INTERNATIONAL PERSPECTIVE 69, 101 (Paul DiMaggio ed., 2001) ("To be accountable to many different principles becomes a means to be accountable to none."); Goodin, supra note 5, at 6-8 (noting generally different accountability mechanisms operating upon NGO actions); Keohane & Nye, supra note 5; E.A. Brett, Voluntary Agencies as Development Organizations: Theorizing the Problem of Eflciency and Accountability, 24 DEV.& CHANGE269 (1 993). 275. This is not far from what happens currently, as there "has been a proliferation of NGOs that are organized more to take advantage of [donor] resources than to accomplish their nominally value-based missions." Brown et a]., supra note 60, at 12.

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optimal financing of various populations' needs. The danger accreditation procedures will limit the servicing of various issues, however, seems overstated, as many NGOs pursue multiple objectives simultaneously and even under very strict donor financing arrangements and still find means to adapt the donor requirements to meet the needs of both the

NGO and the intended beneficiaries.276 In the end, for NGOs to be held accountable in a coherent and consistent manner at the international governance level, some harmonization in definition and regulation at the national level is required. NGOs have a sense of moral legitimacy due to their focus on public interest or nonprofit issues. It is therefore important for national governments to ensure an organization seeking NGO certification meet some requirements to be labeled a non-profit organization, including purpose- and populationbased requirements, financial and hierarchical accountability controls, and controls ensuring alignment between the purposes and actions of the organization. These mechanisms together establish the minimum requirements necessary to create some coherency to NGOs in the international sphere, thereby reducing the costs and improving the correctness of international governance systems' certification of NGO participants.

C. Implementation Issues This is a theory-based Article, leaving most of the details of implementation to further study. However, some general implementation concerns should be noted. 1. Cost The ability to implement a unified system of NGO certification unique to each regime's mandates and purposes will inevitably impose a number of significant costs. While some of these costs may be minimized through economies of scale if performed by a single certification organi~ a t i o n they , ~ ~will ~ nevertheless be significant for international regimes. These costs may be borne by applicant NGOs, depending upon the regime mandate, making distributional inequities a danger. Despite this potential pitfall, these concerns do not appear particularly worrisome since significant funding is available from various organizations to support NGO capacity-building and participation in international govern276. See Johnson. supra note 248. at 14-15 (noting such flexibility is enhanced by requirements seeking greater incorporation of intended beneficiaries in the decisionmaking processes but some ambiguity is still necessary to allow such flexibility). 277. See inza Part IV.C.5 for a discussion of this typc of arrangement.

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a n ~ e . Additionally, ~~' this Article seeks to place some of the costs of implementing this framework upon national governments, which typically have greater resources for certification than international regimes.279 2. Feasibility

a. Regime Perspective From a regime perspective, implementing the framework laid out might not only impose costs, but might be difficult to achieve even absent financial constraints. Lack of adequate data or resources to verify the veracity of organizations may present significant challenges in implementation. Recognition of these problems is the primary reason why this Article suggests a two-tiered approach to certification: domestic- and international-level procedures. However, despite these data gaps, it is important to provide the indicators by which future studies may be conducted and to identify areas of further research. Additionally, international regimes may not be particularly competent in certifying NGOs to participate, as most have not undertaken such certification requirements. As a result, a significant learning curve and proceduralization of the certification process will be required to guide regime behavior. While a dedicated, independent certification agency may significantly assist regimes in this process,280this learning curve will nevertheless exist and may present significant short-term equity and justice concerns. Finally, significant concerns exist regarding the ability of international organizations to pierce through domestic regulations serving as mere window dressing. This Article assumes such a process is possible, as it has faith in the approach undertaken by NACEC in the NAFTA regime. 278. For example, the United Nations Development Programme and Global Environment Facility Small Grants Programme provides up to $50,000 for NGOs seeking to build their capacity in international governance as it relates to environmental protection. See The Global Environment Facility Small Grants Programme 1992-2002, Hands-on Actions for Sustainable Development (2002), http://sgp.undp.org/download/SGPlO) yearReport.pdf. 279. Cf:Peel, supra note 176, at 74 ("Greater institutional constraints in the intcrnational setting may mean that tribunals do not have the resources to devote to screening individual applications and submissions by NGOs. However, such considerations do not dictate the exclusion of NGOs from the international environmental dispute resolution processes altogether. Rather, they suggest the need for development of a process of accrediting NGOs in the international environmental arena to ensure an empirical basis for determining their claimed representativeness and expertise."). 280. See infra Part IV.C.5.


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This Article counsels for freedom of information laws to the extent they provide information regarding government funding and NGO purposes, structures, and funding sources. Nevertheless, the difficulty of determining whether an organization is a mere political arm of a state where such l a w s do not e x i s t w i l l be i m m e n s e , a n d w i t h o u t g r e a t e r standardization,

including the use of standard accounting procedures, data gathered from national governments or independently may require significant analysis to decipher their importance.

b. NGO Perspective From the NGO perspective, the requirements imposed by this Article will likely undermine organizational efficiency to a certain extent. While this Article does not advocate significantly different accountability mechanisms than current literature, it does call for particular arrangements of accountability mechanisms, the strength of which may vary depending upon the functions performed (or the type of organization performing them). As a result, certain combinations of accountability mechanisms may prove to be more stringent and hinder organizational efficiency to a greater extent than existing requirements or theories. As a result, such requirements might limit the number of NGOs capable of performing governance activities to the larger NGOs capable of absorbing such additional In the view of this Article, these concerns do not seem particularly compelling as an argument to reject a functionbased approach to accountability, but certainly must be considered in determining the strengths of accountability mechanisms applied to particular governance functions.

3. Western Bias A significant concern for this framework is its potential to favor Western forms of organization. While the departure from democratic accountability theory opens the door for participation by non-Western NGOs possibly left out of other accountability theories, the certification process established by this Article's framework nevertheless may create a potential bias against non-Western organizational forms which are not established according to the typically Western corporate model. Additionally, this Article continues to rely on representation as being a normative basis 281. See, e.g., Hale, supra note 64, at 16, 20 (noting worries "the costs of compliance will detract from the partners' ability to cany out their project, an issue of special concern to small-scale partnerships and developing country partnerships," but arguing "innovative policy tools can avoid this danger").

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for internal, and to some extent, external accountability to beneficiaries. While less concerning than mainstream accountability theory, which primarily relies upon democratic representation models and elections, this Article's reliance on representation might be seen to imply a democratic model-an issue of concern since only approximately sixty percent of global society is democratically governed through elections.282However, this analysis does not assume such a requirement unless one is established at the regime level. As noted in the previous section, the certification requirements imposed by this framework might also favor wealthier NGOs, typically from Western or Northern countries.283Even more disconcerting to some might be the departure from typical accountability critiques of NGOs, which disclaim NGOs7 failure to adequately represent their beneficiaries' interests. Focus on internal accountability as accountability to members, who are typically wealthy Northern individuals and organizations, might advantage Northern policies. Southern countries may therefore oppose out of fear Northern NGOs' policy general increases in NGO po~er,284 goals will not sync with local developing country realities, and may be coterminous with Northern governments' policy platforms.285Additionally, Southern countries may fear allowing NGO participation will favor Northern NGOs due to inequities in power, access to technology and resources, and the predominance of the English language in international 282. See Adrian Karatnycky, The 200lF2001 Freedom House Survey of Freedom, in FREEDOMIN THE WORLD:THE ANNUALSURVEY OF POLITICAL RIGHTSAND CIVIL LIBERTIES 200C-2001, at 9 (Linda Stern ed., 2001). 283. See CONSTRUCTING WORLD CULTURE:INTERNATIONAL NONGOVERNMENTAL ORGANIZATIONS SINCE1875 (John Boli & George M. Thomas eds., 1999). 284. See Daniel C. Esty, Linkages and Governance: NGOs at the World Trade Organization, 19 U . PA. J. INT'L ECON.L. 709, 725 (1998) ("Other observers argue that a greater role for NGOs at the WTO might exacerbate the existing bias toward Northern viewpoints and further weaken the voice of those advancing the needs of the developing world."); Philip M. Nichols, Participation of Nongovernmental Parties in the World Trade Organization: Extension of Standing in World Trade Organization Disputes to Nongovernment Parties, 17 U . PA. J. INT'L ECON.L. 295, 3 18-19 (1996) (explaining the inequity that exists in advocating in an international forum because of the benefits to well-monied interest groups). 285. See Rona Nardone, Like Oil and Water: The WTO and the World's Water Resources, 19 CONN.J . INT'L L. 183, 194 (2003) (noting that Northern NGOs prioritize natural resource and biological diversity protections, while Southern NGOs prioritize human development); Maki Tanaka, Bridging the Gap Between Northern NGOs and Southern Sovereigns in the Trade-Environment Debate: The Pursuit of Democratic DisL.Q. 113, 12C-21 pute Settlements in the WTO Under the Rio Principles, 30 ECOLOGY (2003).

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governance.286This fear, however, is not particularly significant, as the theoretical framework established by the Article would actually reduce the number of Northern NGOs claiming to represent Southern beneficiary interests where such beneficiaries are not properly represented in N G O policymaking,2g7 s p u r r i n g t h e f o r m a t i o n of S o u t h e r n N G O s o r

Northern NGOs truly representative of Southern interests. Additionally, this Article posits it is the responsibility of the regime itself to ensure full and fair representation of all affected interests, so failure to ensure fairness in representation would be a shortfall of the regime, not of the NGOs. Finally, the certification requirements established under this Article run the risk of privileging particular organizational forms. Requiring NGOs to conform to a particular organizational structure, while perhaps making them more easily verified and held to account, risks undermining cultural forms of organization and hierarchy, as well as the overall effectiveness of various organizations.288Internal accountability structures vary significantly by culture and must be weighed against local custom. International regimes seeking to validate domestic non-profit legal structures should not demand particular organizational forms, but should evaluate the appropriateness of domestic legal non-profit structures against the reasoning used by domestic governments. Therefore, while harmonization of domestic procedures is important in this context, it is also important to allow for local variation.289In applying context-dependent accountability controls, therefore, formalism can be the enemy of the One major obstacle is the requirement that NGOs be non-profit, which may require some states to redefine their tax codes, thereby contravening the will of the populace. Since the UN requires participating NGOs to be non-profit, this Article assumes this issue has not presented significant distributional equity problems, though it recognizes such concerns can 286. Riva Krut, Globalization and Civil Society: NGO Influence in International Decision-making 18-22 (United Nations Research Inst. for Soc. Dev., Discussion Paper No. 83, 1997), available at http:/lwww.unrisd.org (follow "site search" hyperlink; then search "Riva Krut"; then follow hyperlink to article). 287. This is the case because international NGOs can claim any beneficiary constituency and act on their behalf without accountability to the beneficiaries. This Article suggests a modification to this approach under certain circumstances, thereby either mandating greater direct representation of beneficiary interests or limiting NGO participation to those organizations sufficiently representative of beneficiary interests. 288. See Kingsbury, supra note 6, at 188-93. 289. See id. 290. See id. at 189.

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exist and should be dealt with on a case-by-case basis to ensure fair treatment across national borders. 4. Moral Hazard

There is potential concern the proceduralization of NGO participation in international governance might create a presumption of NGO accountability. This presumption, in turn, might lead some actors to give more credence to NGO positions than to other governance actors, such as states or other less procedurally governed entities. This concern is especially acute in enforcement situations where NGOs hold international governance regimes accountable. These NGOs might be less inclined to evaluate the regimes' performance (in holding the regime accountable) if NGOs are participating in the structure, even when the NGO is not acting as an accountability control to unwieldy regime power. This is a potential concern, but one easily avoided through clear and simple certification procedures which outline the exact reasons and functions the NGO is allowed to perform. Another moral hazard concern might present itself with respect to domestic certification requirements, whereby international regimes might presume domestically certified NGOs are proper participants in international governance and therefore over-include NGOs in the governance regime. These dangers, however, appear to be insignificant where proceduralization is designed to ensure greater accountability. Although formalization may increase legitimacy without increasing accountability, the system proposed by this Article is intended to ensure accountability and thereby avoid this problem. 5. Regime Accountability

Finally, significant concerns exist regarding overall regime accountability. Allowing the international regime to hold the NGO accountable or require particular mechanisms places strong power in the hands of the regime to dispel criticism by not accrediting NGOs with views critical of the regime. As has been noted before, real power is held by those who accredit the participating ~ ~ 0 sSome . ~have ~ 'taken the position greater inclusion is better, and therefore providing certification power to international regimes might increase their ability to restrict NGO participation to only weak or already co-opted organizations: "[ilf NGOs are to be held accountable to intergovernmental organizations, controlled ulti-

291. See Charnovitc supra note 1 1 1.

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mately by governments, their most outstanding virtue-independence from governmental authority-would be threatened."292 However, I do not share the conclusion this danger is so large as to warrant the application of external accountability only through peer and reputational accountab;lhy r n e ~ h a n ; s r n s . ~ ~ ~ While many NGOs do act through NGO networks, this is an issue separate from governance; peer accountability mechanisms are subject to failure through collusion, and normatively, NGOs not involved in governance have no or limited normative right to hold other NGOs accountable.2y4Additionally, reputational mechanisms, highly dependent upon the provision of perfect information, are likely to be more effective in ensuring internal NGO accountability to members than external accountability to beneficiaries, who are in a dependent situation. That is, donors may cease or reduce their donations to organizations, but so long as the organizations still have funding, it is likely the assistance such organizations seek to provide will not be significantly rejected by beneficiaries. In the governance context, however, this is a non-issue, since NGOs would be authorized to act under a contract to provide services on behalf of the regime, so controls other than reputational mechanisms would be applicable to hold NGOs accountable to beneficiaries under such circumstances. In a governance setting, NGOs are not necessarily weak actors and therefore accountability controls previously asserted as sufficient in the private NGO context are no longer so.295 As a result of this Article's reluctance to rely upon peer accountability controls, the framework proposed suggests the international regime be involved in ensuring NGO accountability to the regime. These concerns are significant in the context of holding the regime to account for its actions, but less so where the NGO is performing governance functions on behalf of the regime. Nevertheless, the concern of cooptation, although not significantly increased by this Article's framework over the status quo method of including NGOs, does counsel for the creation of an independent accreditation organization. This reviewing body would be based upon a pool of actors and should include, at a minimum, one standing, 292. Keohane, Commentary on the Democratic Accountability of Non-Governmental Organizations, supra note 67, at 478. 293. See id. 294. See Tanaka, supra note 285, at 120-35. 295. See Keohane, Commentary on the Democratic Accountability of Non-Governmental Organizations, supra note 67, at 479 ("[Slince NGOs are themselves relatively weak, their external accountability deficits are not as severe as the accountability deficits for other organizations in world politics.").

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independent member of the accreditation organization, one member of the international regime to which the NGO applied for participation in its governance activities, and an official from the country where the NGO's headquarters or field office is located, whichever is most pertinent to the particular issue and international organizational mission. This reviewing body should dispel most of the concerns associated with NGO cooptation and regime rent-seeking behavior. V. CONCLUSION This Article has reviewed accountability theories related to NGO involvement in international governance and found such theories lack precision and clarity and have proven to be overly general. NGOs may perform two major roles in governance: serving to act as accountability checks on international governance regimes or performing governance functions on behalf of those regimes. This Article focused primarily on the latter of the two roles, describing in detail in Part TI1 some of the varied functions NGOs have performed in international governance regimes. Deconstructing NGO participation in international governance reveals different accountability concerns are raised by the different functions performed by NGOs. As a result, accountability theory must recognize these differences and seek to apply controls based on the particular functions performed by NGOs. Part IV provides a starting point for such a function-based accountability theory. While a function-based framework may present some significant implementation challenges for international and domestic regimes, from both a normative and efficiency perspective, such an approach is highly desirable because it avoids over- and underinclusion of NGOs in governance and ensures greater competition between NGOs for the performance of particular functions, allowing international regimes to select the NGO best fit to perform the particular function. These implementation challenges warrant further study to detail the contours of a function-based accountability theory and to illustrate methods of determining the optimal balance between organizational and institutional costs and ensuring suitable levels of accountability to the appropriate individuals or entities.

Name Index Abrams, J . xxiv, 128

Bodansky, Daniel 165, 391

Addo, M. 127 Aideed, Mohammed 206 Albright, Madeleine 207,227 Alexy, Robert 199 Alexyde, Levan 379 Alford, R.R. 200 Allott, Philip xviii, 124, 141, 400 Alston, Philip xxvii, 139, 150 Alvarez, Jose 158 Aman, Alfred C. 60 Ammoun, Judge 137 Anaya, J. 121, 137 Anderson, Kenneth xx, 138, 163-5,22 1-50 Annan, Kofi 141-3, 162 Aquinas, St Thomas 243 Arangio-Ruiz, Gaetano xiv Arbour, Louise 212 Arend, Anthony C. xv Arendt, Hannah 52, 101, 116 Aristotle 116 Armstrong, James 384 Ascensio, Herve 3 19 Augustine, Saint 243 Aust, Anthony 198 Axworthy, Lloyd 238-9,241

Bodin, Jean 26, 376 Boli, J. 199 Bolton, John 163, 165 Borchard, Edwin 154 Borzel, Tanja A. 555, 572-3 Bourdieu, Pierre xii Boutros-Ghali, Boutros 66 Brandt, Richard 375 Breen, Claire xx Brett, Rachel 385,390 Brierly, James 37&7 Brolmann, Catherine M. 49 Brownlie, Ian 14 1,260, 380 Buchanan, Allen, E. xviii Burley, Anne-Marie 390 Bush, George H.W. 206

Bailey, Stanley H. 159 Baldwin, Simeon E. 148 Banarjee, Samir 397 Bartholomeusz, Lance xxi, 253-330 Bassiouni, M. Cherif 207, 378,481,484 Bastid, Suzanne 155 Beck, Ulrich 71 Berenstein, Alexandre 164 Berlin, Isaiah 106 Bettati, Mario 38 1 Bianchi, Andrea xi-xxx, 138, l 4 W l , 375408 Biersteker, T.J. 196 Bin Laden, Osama 45 Blair, Tony 2 13 Bluemel, Erik B. xxvi, 5 3 3 4 0 0 Bobbio, Norberto 375

Cameron, Maxwell A. 234, 241 Caroline of Monaco, Princess 280, 284 Carty, Anthony 88 Cassese, Antonio 121, 132, 48 1 Cerny, Philip 33 Charlesworth, H. 124, 137, 141 Charney, Jonathan I. 42, 375, 379 Charnovitz, Steve xix, 134, 147-71 Chayes, Abram 154 Chayes, Antonia 154 Cheng, Bin xiv Chinkin, Christine 124, 137, 141, 258,262, 289 Clapham, Andrew xvii, 127, I38 Clinton, Bill 300, 329 Combacau, Jean xvi Conforti, Benedetto 392,397 Cox, Larry 250 Cox, Robert 34-5 Crawford, James 128, 137, 164,397 Croley, S. 134 Cullen, H. 1 3 8 4 0 Cutler, A. Claire xvi, 19-36 D'Amato, Anthony 377, 396, 398 Dahl, Robert 54 1

602


Danilenko, Gennady M. 379 De Witte, B. 135 Delbriick, Jost 60 Descartes, RenC 94 Detrick, Sharon 138, 383 Dettling, J. 375 Dine, J. 122 Dinstein, Y. 127 Donini, Antonio 147 Donoho, Douglas Lee 398 Drumbl, Mark 48 1 Drzemczewski, Andrew 387 Dupuy, Pierre-Marie xv, xvi, 133, 380-81 Epiney, Astrid xxii Esty, Daniel 161 Evan, William M. 376, 397 Evans, M. 502 Falk, Richard 126, 376 Feinberg, Nathan 170-7 1 Feliciano, Florentino 165 Fenwick, Charles 160 Forrester, Viviane 69 Forsythe, David P. 384 Foucault, Michel79-82, 89-95, 98-9 Franceschet, Antonio 189 Francioni, Francesco 395 Franck, Thomas M. xvi, xviii, 74, 141, 165 Friedland, R. 200 Friedman, Milton 425 Frowein, A. 379 Frowein, Jochen Abraham 72 Gaja, Giorgio 379-80 Galtung, Johan 399 Gill, Stephen 3 1, 35 Goldstone, Richard 207 Gomez Robledo, Antonio 379 Gordenker, Leon 62 Grant, Ruth W. 542-3, 546 Gray, C. 131 Grotius, Hugo 115, 244 Gualtieri, Alix Gowlland xxiii, 333-73 Guillaume, Gilbert 163, 266-7 Haarscher, Guy 398 Habermas, J. 199,201,218,243 Hall, Christopher 212-13 Hannikainen, Lauri 379

Hannum, Hurst 385 Haopei Li, Judge 476 Harries, Richard 398 Hart, Herbert L.A. xiii Hartley, Trevor 395 Hegel, Georg Wilhelm Friedrich 82, 109, 111-13 Heller, Hermann 71 Henkin, Louis 375, 399 Higgins, Rosalyn xv, 26, 124-5, 129, 154, 159, 379,399 Hirschman, Albert 546 Hobbes, Thomas 26, 82, 110-1 3, 117 Hobe, Stephan 60 Hohfeld, Wesley 126, 129 Holmes, Justice 175 Horowitz, Morton 24 Huber, Max 58 Humana, Charles 399 Hussein, Saddam 206 Jackson, J. 134 JacquC, Jean Paul 395 Jaenicke, Gunther 380 Janis, Mark 26 Jenks, C. Wilfred 68, 71, 155 Jennings, Robert xi, 396 Jessup, Philip 159 Johnston, Douglas 396 Joinet, Louis 470 Jones, Elwin 395 Joseph, Sarah xxiv Joyner, E. 375 Kaldor, Mary 555 Kamminga, Menko xx, xxi, 164,385 Kant, Immanuel 170-7 1 Karadzic, Radovan 40 Kaufmann, Wilhelm 148 Kay, Stephen 292,295 Kazansky, Pierre 160 Kelsen, Hans 85-7, 118 Kennedy, David 20-23 Keohane, Robert 0. 166,542-3,546,548,550 Ken; Brian 28 1 Kingsbury, Benedict xvi Kiss, Alexandre 158 Klabbers, Jan xiii, xvi, xxi, 37-55, 101 Knop, Karen 125, 137, 139 Koskenniemi, Martti xviii, 88, 124, 127, 141 Kostakopoulou, D. 141

Non-State Actors and International Law Krasner, Stephen 21 Kratochwil, Friedrich 195 Krisch, Nico xxvi La Forgia, R. 127 Lador-Lederer, J.J. 1 50 Lgm, M.C. 138 Lande, Adolf 159 Lasswell, Harold D. 396 Lauterpacht Hersch xi, xvi, xviii, 3-17, 21, 124, 3 93 Lawson, Robert J. 234 Le CarrC, John 505 Leary, Virginia 162, 382 Leibniz, Gottfried Wilhelm 110-1 1, 115 Lieber, Francis 149 Lillich, Richard B. 385 Lissitzyn, Oliver 159 Little, David 397 Lowe, V. 129 Luhmann, Niklas 389, 397, 399 Macalister-Smith, Peter 63 MacChesney, Brunson 173 MacCormack, Tim 297 MacCormick, Neil 376, 393 McCorquodale, Robert xvi, xix, xxv, 1 2 1 4 6 , 505-32 McDougal, Myres 161,396 McGoldrick, D. 128 Mackenzie, Ruth 258 McNair, Arnold xi Marks, Susan 137, 164 Marshall, Jill 493-504 Martens, Kerstin xix, xxi, 384 Masciulli, Joseph xix Mayer, Ann Elizabeth 398 Menon, P.K. 130 Meron, Theodor 15 1, 379, 397, 399,476 Mertus, Julie xv Milosevic, Slobodan 47, 54, 206, 292, 2 9 5 4 Mitrany, David 164 Morgan, Ed 43 Morrow, Dwight W. 150 Morrow, K. 1 3 8 4 0 Mosler, Hermann 72,380 Motala, A. 139 Muchlinski, P. 122 Miiller, Jorg Paul 58, 398

603

Nerfin, Marc 75 Nietzsche, Friedrich 94 Nijman, Janne E. xvii, xviii, 79-1 18, 123 Nino, Carlos Santiago 399 Noriega, Manuel 206 Nowrot, Karsten xvi Nye, Jospeh S. Jr. 166, 542-3, 546 Oda, Shigeru 163 Okeke, C.N. 51 Olleson, S. 128 Oppenheim, Lassa 72, 122, 14 1 Orakhelashvili, A. 123, 136 Orentlicher, Diane 298 Orrego-Vicufia, Francisco xxi Otto, D. 127, 139 Pace, William 138, 208-9 Paust, Jordan J. 389 Pellet, AIain 481 Pernthaler, Peter 77 Perry, Michael 205 Picone, Paolo 379 Pinochet, Augusto 462 Pisillo Mazzeschi, Riccardo 396 Politis, Nicholas 155 Posner, Michael H. 385-7 Pound, Roscoe 171 Prescott, Elizabeth xix Provost, R. 127 Pufendorf, Samuel von 110 Quaddafi. Muammar 206 Rajagopal, B. 140 Rajic, lvica 289 Ramcharan, B.G. 398 Ranjeva, Raymond 161 Ratner, S. xxiv, 128 Redfern, A. 133 Reinisch, August xxiii, 41 1-63 Reinsch, Paul I60 Reisman, W. Michael 74, 127 Renteln, A. 375 Ricardo, David 70 Ricoeur, Paul xviii, 79, 8 1-2, 88, 93-5, 97-1 02, 1 0 4 4 , 109, 111-14, 1 1 6 1 7 Rieff, David 163-5, 248-9 Risse, Thomas 555, 572-3 Roben, Volker xv

604


Robertson, Geoffrey 481 Robinson, Mary 481 Rodley, Nigel S. 385 Root, Elihu 148 Rosenne, Shabtai 257, 2 6 M 1 , 3 2 7 Roth, Kenneth 240 Ruggie, J.G. 195 Saladin, Peter 77 Sands, Philippe 128, 298 Sanger, Sophy 150 Scelle, Georges 124, 164 Schabas, William A. xxiv, 131, 465-91 Schachter, Oscar xx, 153, 173-82 Scharf, Michael 2 14 Schindler, Dietrich Sr. 57 Schlag, Pierre xxviii, 22 Scholte, Jan 30 Schreuer, Christoph 59, 141, 379, 391, 399 Schrijver, Nico 481 Schucking, Walther 164 Schwebel, Stephen M. 379 Scoble, Harry M. 384 Sen, Amartya 106 Shahabuddeen, Judge 293-5 Shaw, M.N. 21 Shelton, Dinah xxi, 131, 140, 152, 158, 383 Shestack, Jerome J. 398 Sicilianos, Linos-Alexandre 379 Sieghart, Paul 377 Sikkink, Kathryn 386, 390 Simma, Bruno 72 Simons, Penelope xxv, 505-32 Singh, Nagendra 136 Skurbaty, Zelim 55 Slaughter, Anne-Marie 42 Smith, Adam 70 Sobrino Heredia, Jose M. 387 Sohn, Louis 171 Somarajah, M. 133 Spruyt, Hendrik 41 Steiner, H. 126, 139 Stem, Brigitte xxii, 300,307, 328 Strange, Susan 23,3 1 Struett. Michael J. xx, 187-219

Summers, Robert S. 393 Sunga, Lyal378 Taylor, Charles 113-14 Taylor, Charles Ghankay 297-8 Teson, Ferdinand0 141, 398 Teubner, G. 3 7 5 4 , 3 8 9 Thieroff, M. 138 Thomas, G.M. 199 Thoolen, Hans 384 Thurer, Daniel xvi, xviii, 57-78 Tomlin, Brian W. 234 Tomuschat, Christian 72 Trindade, Canqado 142 Troost, Lars van 2 13 Ulrich, Peter 76 Van Boven, T. 138-9 Vattel, Emerich de 141 Vbquez, Carlos M. 140 Verdross, Alfred 72 Verstappen, Berth 384 Vitoria, Francisco de 121 Walzer, Michael 24, 70 Warbrick, C. 124, 129 Watts, Arthur mi, 3 17,396 Weber, C. 196 Weil, Prosper xiv, 380 Weiler, Joseph 380 Weiss, Thomas G. 62 Weissbrodt, David 381, 387 Westlake, John 15, 72 White, Lyman 169 Willetts, Peter 388 Williams, Jody 161 Wiseberg, Laurie S. 384, 387 Wladimiroff, Mr 296 Wolf, Francis 382 Wright, Marcheta L. 388-9 Wright, Quincy 160 Wright, S. 141 Young, I.M. 137

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