Wake Forest Law Review

By David Darr

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

Defendants Contended the Court Lacked Jurisdiction and Violated Constitutional Rights

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

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

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

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

Definition of “High Seas”

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

High Seas Include EEZs

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

Fifth and Sixth Amendment Protections

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

The Fifth and Sixth Amendments Were Not Violated for Abrar

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

Fourth Circuit Affirmed

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

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By Andrew Kilpinen

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

Nezirovic Tortured Civilians As Internment Camp Guard in Former Yugoslavia

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

Nezirovic Appealed District Court’s Writ of Habeas Corpus Denial

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

Extradition Not Time-Barred Under Indefinite Limitations of Torture Act

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

Nezirovic’s Actions Were Not Political Offenses Exempt From Extradition

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

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

By Joshua P. Bussen

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

 Defendant Claims German Court Was Incorrect

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

To Germany and Back

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

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

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

 The Hague Convention & Comity

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

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

 The Fourth Circuit’s Rationale

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

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

Outcome

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

 

 

By Marcus Fields

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

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

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

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

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

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

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

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

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

By Zoe Niesel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

[9].   Walker et al., supra note 5.

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

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

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

[13].   Id.

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

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

[16].   Id. at 34, 55–56.

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

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

[19].   Id.

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

 

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

[22].   Id. at art. 18.

[23].   Id. at art. 4.

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

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

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

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

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

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

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

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

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

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

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

[35].   Id.

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

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

By: Scott W. Lyons*

Introduction

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

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

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

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

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

I.  Overview: The Unsettled Debate and Recent Developments

A.     Valid Amnesties to End Conflict

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

B.     The Debates Surrounding Crimes Against Humanity

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

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

1.     Treaty Law

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

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

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

2.     Customary Law

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

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

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

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

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

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

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

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

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

C.     Defining Crimes Against Humanity

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

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

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

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

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

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

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

D.    Universal Jurisdiction

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

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

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

II.  Structural Limits on Amnesty for Crimes Against Humanity

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

A.     The Expansion of the Definition of Crimes Against Humanity

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

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

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

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

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

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

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

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

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

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

B.     The Willingness to Use Universal Jurisdiction

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

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

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

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

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

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

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

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

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

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

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

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

C.     The Impact of the International Criminal Court

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

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

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

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

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

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

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

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

D.    Implications of Ineffective Domestic Amnesty

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

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

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

III.  A New Role for the Security Council

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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


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

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

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

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

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

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

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

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

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

        [8].   Statute of the Special Court for Sierra Leone, art. 10, Jan. 16, 2002, 2178 U.N.T.S. 145 available at http://www.sc-sl.org/LinkClick.aspx?fileticket
=uClnd1MJeEw%3D& (“An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution.”).  Articles 2 through 4 refer to Crimes Against Humanity, Violations of Article 3 Common to the Geneva Convention and of Additional Protocol II, and Other Serious Violations of International Humanitarian Law.  Id. arts. 2–4.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

      [41].   Id.

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

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

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

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

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

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

      [48].   Id. § 102 cmt. b.

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

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

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

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

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

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

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

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

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

      [58].   Id. at 496–97.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

      [73].   Id.

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

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

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

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

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

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

      [80].   Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    [124].   Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    [143].   Id. ¶ 98.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    [162].   Id. ¶¶ 11–12.

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

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

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

    [166].   Id. ¶ 88.

    [167].   Id. ¶¶ 67, 70.

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

    [169].   Id. ¶¶ 8, 10.

    [170].   Id. ¶ 4.

    [171].   Id. ¶ 9.

    [172].   Id. ¶¶ 8, 16.

    [173].   Id. ¶ 8.

    [174].   Id.

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

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

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

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

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

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

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

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

    [183].   See id. §§ 403–04.

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

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

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

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

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

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

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

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

    [192].   Id. art. 12(2)(b).

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

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

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

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

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

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

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

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

    [201].   Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, art. 40, NS/RKM/1004/006 (Oct. 24, 2004) (“The Royal Government of Cambodia shall not request an amnesty or pardon for any persons who may be investigated for or convicted of crimes . . . .  The scope of any amnesty or pardon that may have been granted prior to the enactment of this Law is a matter to be decided by the Extraordinary Chambers.”); Statute of the Special Court for Sierra Leone, supra note 8 (“An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution.”); see also S.C. Res. 1757, Attachment art. 6, U.N. Doc. S/RES/1757 (May 30, 2007) (“An amnesty granted to any person for any crime falling within the jurisdiction of the Special Tribunal shall not be a bar to prosecution.”).

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

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

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

    [205].   Id. art. 17(2)(a).

    [206].   Id. art. 17(2)(c).

    [207].   Id. art. 20(3).

    [208].   Id. art. 20(3)(b).

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

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

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

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

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

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

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

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

    [217].   Id. art. 120.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    [234].   U.N. Charter art. 24.

    [235].   Id. art. 39.

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

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

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

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

    [240].   Id. art. 36(2).

    [241].   See id. arts. 24, 25.

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

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

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

    [245].   Id.

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

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

    [248].   U.N. Charter art. 103.

    [249].   Id.

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

    [251].   Id.

    [252].   Id. at [27].

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

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

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

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

    [257].   Id. ¶ 4.

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

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

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

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

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

Lyons_LawReview_1.13

 

By: Beate Sjåfjell*

Introduction: A Moral Imperative for Action

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

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

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

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

I.  The Role of Companies

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

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

II.  The Role of Law

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

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

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

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

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

B.     The Limited Effectiveness of Environmental Law

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

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

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

C.     The Role of Core Company Law

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

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

III.  The Research Project “Sustainable Companies”

A.     Internalizing Environmental Externalities

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

B.     Tentative Results: Possibilities and Critique

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

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

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

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

C.     Tentative Results: The Main Barrier

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

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

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

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

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

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

D.    The Way Forward: Tentative Reflections

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

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

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

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

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

IV.  The Proposals of the “Sustainable Companies” Project

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

Conclusion: Global Challenges Call for Global Debate

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

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

 


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

      [22].   Id.

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

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

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

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

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

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

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

      [30].   Sjåfjell, supra note 25.

      [31].   Id.

      [32].   Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

      [47].   Sjåfjell, supra note 25.

      [48].   See infra Part III.C.

      [49].   See infra Part III.D.

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

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

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

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

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

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

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

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

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

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

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

      [61].   Id.

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

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

      [64].   See Sjåfjell, supra note 59.

      [65].   And other societal externalities.

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

      [67].   Sjåfjell, supra note 25.

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

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

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

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

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

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

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

      [75].   Id. at 20.

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

      [77].   Sjåfjell, supra note 25.

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

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

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

      [81].   Sjåfjell, supra note 3.

      [82].   Id.

      [83].   Id.

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

      [85].   Id. at 13–14.

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

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

      [88].   Id. at 46–54.

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

      [90].   Id. at 31–36.

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

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

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

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

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

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

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

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

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

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

    [101].   Id.

    [102].   Id. at 7–8.

    [103].   Sjåfjell, supra note 59.

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

    [105].   See Sjåfjell, supra note 3.

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

    [107].   Through the end of 2012.

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

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

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

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

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

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

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

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

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

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

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

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

 

By: Jessica L. Rutledge*

Introduction

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

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

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

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

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

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

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

I.  The “Waves” of IEL

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

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

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

A.            The First Wave

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

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

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

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

B.            The Second Wave

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

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

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

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

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

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

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

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

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

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

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

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

A.            The Background

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

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

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

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

B.            The Decision

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

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

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

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

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

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

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

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

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

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

C.            What Pulp Mills Means

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

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

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

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

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

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

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

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

A.            The Case Against Colombia

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

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

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

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

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

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

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

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

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

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

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

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

C.            Colombia’s Citation to the Precautionary Principle

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

The precautionary principle is best understood in light of its rationale.  The rationale’s premise is that policy makers generally rely on the best available scientific data when developing effective regulatory policies.[209]  However, because scientific uncertainty is rampant, and because laws still need to be made, the precautionary principle allows states to act notwithstanding scientific uncertainty, but only while erring on the “side of excess environmental protection.”[210]  Thus, the precautionary principle is appropriately cited in the aftermath of a disaster when a state quickly reacts by choosing a method that has not undergone extensive scientific testing because the danger of allowing the disaster to fester is outweighed by the potential danger of the method to combat it.[211]  To illuminate this point, consider an oil spill.  Common sense tells us that oil spills are disasters that need immediate attention.  If a state reacts to an oil spill by using a chemical dispersant that has not been extensively tested, but has perhaps been used by other states in similar situations or does not contain ingredients known to be toxic, the state would be justified under the precautionary principle to use it.[212]  However, common sense also tells us that if the same state used a chemical dispersant with known toxic components, this is simply foolhardy behavior and the state will not be shielded by the precautionary principle.  The precautionary principle does not authorize ignoring the obvious, and a state with unclean hands cannot count on it for protection.

In this case, Colombia is essentially arguing that coca production, the drug trade, and guerilla activity constitute a “threat of serious or irreversible damage” that Colombia has chosen to combat by aerially spraying an unrevealed and untested herbicide over extended periods of time.[213]  Quite frankly, the precautionary principle was not intended to function in this type of situation.  The precautionary principle can be utilized by states when neither time nor scientific evaluation “allow the risk to be determined with sufficient certainty,” this is not the case in Colombia.[214]  While Columbia admittedly has a serious problem, it is not one that has suddenly descended on the government.  Rather it has plagued the country for decades.[215]  Far from being a case where scientific evaluation does not allow the risk to be determined with sufficient certainty, Colombia has had ten years from the commencement of Plan Colombia to run the requisite tests on the herbicide to determine its ramifications.  However, Colombia has either chosen not to test the herbicide or is hiding the results from the international community.  Furthermore, Colombia is purposefully withholding a complete list of the herbicide’s chemical ingredients such that no other state can test it.[216]  Thus, while coca production and guerilla terrorism are disasters that necessitate immediate government action, the precautionary principle does not provide a state with the justification to combat a longstanding problem with an untested solution over an extended period of time simply because the state feels that it is the “most effective method” to achieve its goals.  This is particularly so when it is primarily the state’s own unclean hands that have caused the scientific uncertainty to exist.[217]

D.            Doctrine of Necessity Defense

In Aerial Herbicide Spraying, the best defense that Colombia will have is that the drug trade and guerilla activity created a situation of necessity that demanded a response and excused their procedural and substantive internationally wrongful acts.  However, this Comment concurs with other scholars who have predicted that this defense will be an unsuccessful last resort.[218]

In Gabcíkovo-Nagymaros, the ICJ expressly adopted the doctrine of necessity as it appears today in Article 25 of the ILC’s Articles on State Responsibility.[219]  Under Article 25, in the event that a state commits an internationally wrongful act, the wrongfulness of it may be precluded if the act was (1) the only way for the state to safeguard, (2) an essential interest, (3) against a grave and imminent peril, and (4) the act does not seriously impair an essential interest of the state or states toward which the obligation exists, or of the international community as a whole.[220]  Although the Court accepted this four-part test, it also noted that the “ground for precluding wrongfulness can only be accepted on an exceptional basis,” and that the “state concerned is not the sole judge of whether those conditions have been met.”[221]

Colombia can likely produce a strong argument for the second and third prongs of the test.  According to Article 25, in the second prong, possible interests worth protecting include “preserving the very existence of the State”[222] and “ensuring the safety of a civilian population,”[223] both of which are pressing Colombian interests in the present situation.  Moreover, under the third prong, both of these essential interests are subject to grave peril due to the violent, narcotic-funded guerilla groups like FARC and ELN that have terrorized the country for years.[224]  While it could be argued that these interests are not facing imminent peril as Colombia has been fighting these groups for decades, it is truly irrelevant what the Court decides on this issue.  Colombia absolutely cannot meet the first prong of the doctrine, and likely cannot meet the fourth prong either.

Under the first prong, the chosen action to safeguard the named essential interest must be the “only way” and the only means available to the state.[225]  This requirement is not taken lightly, and the plea for necessity “is excluded if there are other (otherwise lawful) means available, even if they may be more costly or less convenient.”[226]  One does not have to speculate very long to come up with other routes that Colombia could have chosen to combat the drug trade rather than aerially spraying toxic herbicides over coca and poppy plantations.  Indeed, former Latin American presidents noted in a 2009 interview that we must “acknowledge the disastrous consequences of current policies” to combat drugs and utilize other options, including education to decrease drug consumption, and aggressive combat against organizational crime.[227]  While all of these options may have admittedly been more difficult to implement than spraying herbicides out of planes, there is no denying that they were lawful alternative methods to combat drug production in Colombia and its effects.  These methods are advocated by other heads of state in Latin America that are dealing with equally destructive drug cartels in their respective states.[228]

Furthermore, under the fourth prong of the doctrine, the ICJ will again be presented head on with an opportunity to weigh Ecuador’s environmental and human rights interests against Colombia’s rights to preserve its government and ensure the safety of its civilian population.  To win on this argument, the ILC states in Article 25 that the interest deemed superior must outweigh all other considerations, and “not merely from the point of view of the acting State, but on a reasonable assessment of the competing interests.”[229]  Thus from the outset, Colombia will have a very high burden to demonstrate that its interest in protecting its people conclusively outweighs Ecuador’s interest in ensuring the quality of its environment and its people’s health and safety, particularly as aerial spraying is surely not the only means to combat drug trafficking.[230]  Because these two issues are arguably of equal importance, and because aerial spraying is causing health problems not only to Ecuadorean people and the environment, but presumably to Colombian citizens as well, it seems impossible that Colombia could demonstrate its interests outweigh Ecuador’s.  Thus, the ICJ will almost certainly conclude that Colombia failed to show the requisite state of necessity to excuse its commission of internationally wrongful acts, and will hold Colombia responsible for its procedural and substantive internationally wrongful acts.

Conclusion

In his book Showing Teeth to the Dragons, Harvey Kline notes that Colombia’s culture of violence is the “most intractable problem” within Colombia’s borders.[231]  He then repeats a query asked by others who have studied Colombia before him—what would it take to “convince Colombians that violence [is] not the way to solve problems after . . . an entire generation of people . . . saw violence as normal?”—a proposition that Kline believes is just as true in today’s world as it was when the question was first posed in 1962.[232]  It is undeniable that Colombia’s predicament is tragic.  Indeed, each day that Colombia survives, scholars have likened the state to a “sick person who just got out of intensive care, happy because he did not die, but who is still far from leaving the hospital and may relapse at any moment if he does not take measures to build on his successes.”[233]  However, at the end of the day, Aerial Herbicide Spraying is not about the problems that Colombia cannot seem to fix.  Rather, it comes down to a simple choice—the drug trade and suffering people, or the environment and suffering people?

Based on the ICJ’s trend throughout the First, Second, and now the Third Wave, I believe the answer is clear.  The environment is going to prevail.  The ICJ’s increasing specificity throughout all Waves, its newfound willingness to follow ILC recommendations, and its decision in Pulp Mills all point toward a favorable result for Ecuador.  However, the value of Aerial Herbicide Spraying extends beyond its arrival at a correct result.  In combination with Pulp Mills, Aerial Herbicide Spraying exemplifies a new direction for the ICJ—a direction towards clarity, specificity, and a world in which states cannot Monday morning quarterback their way out of international obligations quite as easily as they have in the past.  Viñuales’ Third Wave has arrived, and one can only hope that the waves will keep on coming.

 


[1]. Background Note: Colombia, U.S. Dep’t of State, http://www.state.gov
/r/pa/ei/bgn/35754.htm (last visited Nov. 10, 2011).

[2]. Id.

[3]. Marco Palacios, Between Legitimacy and Violence 1 (Richard Stoller trans., 2006) (recognizing four national civil wars in Colombia during 1876–77, 1885–86, 1895, and 1899–1902 respectively); see also id. at 135 (describing the time period between 1945–74 as “La Violencia,” defined as a “popular and largely peasant convulsion . . . that never really went away”); id. at 190–213 (explaining the rise to power of leftist guerilla groups, the violent crimes and torture inflicted by the groups, and the increasing prevalence of drug cartels connected to these groups in Colombia).

[4]. Harvey F. Kline, Showing Teeth to the Dragons 2 (2009).

[5]. U.S. Dep’t of State, A Report to Congress on United States Policy Towards Colombia and Other Related Issues (2003), http://www.state.gov/p
/wha/rls/rpt/17140.htm.

[6]. Simon Romero, Despite Rebel Losses, Cocaine Sustains War in Rural Colombia, N.Y. Times, July 27, 2008, at A1.

[7]. U.S. Dep’t of State, supra note 5.

[8]. Kline, supra note 4, at 45–48; see also U.S. Dep’t of State, supra note 5 (explaining the rationale for the Colombian aid package is the United States’ strong support of “combating the narcotics industry, promoting peace, reviving the economy, improving respect for human rights, and strengthening the democratic and social institutions of the country”); Luz Estella Nagle, U.S. Mutual Assistance to Colombia: Vague Promises and Diminishing Returns, 23 Fordham Int’l L.J. 1235, 1269 (2000) (noting that the United States’ initial plan pledged 7.5 billion dollars to Plan Colombia).

[9]. Application Instituting Proceedings, Aerial Herbicide Spraying (Ecuador v. Colom.), 2008 I.C.J. Pleadings 10, ¶ 13 (Mar. 31, 2008) [hereinafter Aerial Herbicide Spraying Application].

[10]. Id. ¶ 3.

[11]. Id.

[12]. Id.

[13]. Id. ¶ 4.

[14]. Id.

[15]. Id. ¶ 5.

[16]. Id.

[17]. See Aerial Herbicide Spraying Application, supra note 9.

[18]. Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 135 (Apr. 20), available at http://www.icj-cij.org/docket/files/135/15877.pdf.

[19]. Id. ¶ 25.

[20]. Id. ¶¶ 53, 65.

[21]. Id. ¶ 265.

[22]. Id. ¶ 70 (outlining the court’s analysis by noting the separation of procedural and substantive obligations).

[23]. Id. ¶¶ 101, 204.

[24]. Jorge E. Viñuales, The Contribution of the International Court of Justice to the Development of International Environmental Law: A Contemporary Assessment, 32 Fordham Int’l L.J. 232, 235 (2008) (noting that it is possible to “distinguish, for analytical purposes, two main trends or ‘waves’ of cases in the ICJ jurisprudence relating to IEL”).

[25]. Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, in Rep. of the Int’l Law Comm’n, 53d Sess., Apr. 23–June 1, July 2–Aug. 18, 2001, U.N. Doc. A/56/10; GAOR, 53d Sess., Supp. No. 10, at 370–77 (2001) [hereinafter Articles on Prevention].

[26]. Id. art. 3, cmt. 1; see also United Nations Conference on Environment and Development, Rio de Janiero, Braz., June 3–14, 1992, Rio Declaration on Environment and Development, princ. 2, U.N. Doc. A/CONF.151/5/Rev.1 (Vol. 1) [hereinafter Rio Declaration], reprinted in 31 I.L.M. 874, 876; Stockholm Declaration of the United Nations Conference on the Human Environment, adopted June 16, 1972, Report of the United Nations Conference on the Human Environment, princ. 21, G.A. Res. 2997, U.N. GAOR, 27th Sess., 21st mtg. [hereinafter Stockholm Declaration], reprinted in 11 I.L.M. 1416, 1420.

[27]. See Robert Esposito, The ICJ and the Future of Transboundary Harm Disputes: A Preliminary Analysis of the Case Concerning Aerial Herbicide Spraying (Ecuador v. Colom.), Pace Int’l L. Rev. Online Companion, Aug. 2010, at 43, http://digitalcommons.pace.edu/pilronline/15/.

[28]. Gabcíkovo-Nagymaros Project (Hung. v. Slovak.), Judgment, 1997 I.C.J. 7, 55 (Sept. 25), available at http://www.icj-cij.org/docket/files/92/7375.pdf; Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, art. 25, U.N. Doc. A/RES/56/83/Annex (Dec. 12, 2001) [hereinafter Articles on State Responsibility].

[29]. Patricia Birnie et al., International Law & the Environment, 12–13 (3d ed. 2009).

[30]. See Daniel Bodansky, Customary (and not so Customary) International Environmental Law, 3 Ind. J. Global Legal Stud. 105, 107 (1995) (noting that “international legal scholars tend to place importance on whether a norm represents customary international law and have spilled much ink debating whether particular environmental norms have achieved this status”); John H. Knox, Assessing the Candidates for a Global Treaty on Transboundary Environmental Impact Assessment, 12 N.Y.U. Envtl. L.J. 153, 153 (2003) (emphasizing that the “absence of a global treaty on environmental impact assessment (EIA) is an obvious gap in international law”).

[31]. See Dinah Shelton, Normative Hierarchy in International Law, 100 Am. J. Int’l L. 291, 299 (2006) (noting that “international law has traditionally been defined as a system of equal and sovereign states whose actions are limited only by rules freely accepted as legally binding”, a view that was recognized by the ICJ in 1986 when the court stated “in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception” (citing Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 269 (June 27)).  However, this theory is derogated by ius cogens violations, or rules of international law that are so imbedded that they cannot be derogated by a state.  See generally Alfred von Verdross, Forbidden Treaties in International Law, 31 Am. J. Int’l L. 571 (1937), for the first article in which the theory of ius cogens was discussed in detail.

[32]. See Winfried Lang, UN-Principles and International Environmental Law, 1999 U.N.Y.B. 3, 160–61, available at http://www.mpil.de/shared/data/pdf
/pdfmpunyb/lang_3.pdf.

[33]. See Rio Declaration, supra note 26, princ. 2; Stockholm Declaration, supra note 26, princ. 21 (providing an example of an obligation to refrain from causing harm to another state without elaboration of how a state may meet the requirement).

[34]. Statute of the International Court of Justice art. 36, June 26, 1945, 59 Stat. 1055, T.S. No. 993 (1945) [hereinafter ICJ Statute].

[35]. See Viñuales, supra note 24, at 235.

[36]. Id.

[37]. Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905, 1965 (1941), available at http://untreaty.un.org/cod/riaa/cases/vol_III/1905-1982.pdf.

[38]. Id.

[39]. Viñuales, supra note 24, at 238.

[40]. See id. at 237–38, 243.

[41]. Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. 4 (Apr. 9).

[42]. Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. 253 (Dec. 20); Nuclear Tests (N.Z. v. Fr.), Judgment, 1974 I.C.J. 457 (Dec. 20).

[43]. Viñuales, supra note 24, at 240.

[44]. Corfu Channel, 1949 I.C.J. at 22–23.

[45]. Id. at 22.

[46]. Stockholm Declaration, supra note 26, princ. 21.

[47]. Viñuales, supra note 24, at 240.

[48]. Id.  Citing to a principle or idea in pleadings to the ICJ is particularly important in all areas of international law because it tends to show the state practice and opinio juris required to establish the assertion as a customary norm.  Thus, when parties cited to Trail Smelter/Corfu Channel/Stockholm Principle 21 in their materials to the court, they were implicitly recognizing the customary nature of the requirement, or at the very least, their willingness to be bound by the requirement.  See generally Birnie et al., supra note 30, at 22–25, 141.

[49]. Viñuales, supra note 24, at 240.

[50]. Id. at 242–44.

[51]. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8).

[52]. Id. ¶ 1.

[53]. Id. ¶ 29 (emphasis added).

[54]. Viñuales, supra note 24, at 246.

[55]. Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 135 (Apr. 20).

[56]. Viñuales, supra note 24, at 246.

[57]. Id.

[58]. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 504 (July 8) (Weeramantry, J., dissenting).

[59]. Viñuales, supra note 24, at 248.

[60]. Gabcíkovo-Nagymaros Project (Hung. v. Slovak.), Judgment, 1997 I.C.J. 7, ¶¶ 51–52 (Sept. 25); see also Mari Nakamachi, The International Court of Justice Decision Regarding the Gabcíkovo-Nagymaros Project, 9 Fordham Envtl. L. Rev. 337, 346–53 (1998).

[61]. Viñuales, supra note 24, at 248–49.

[62]. Id. at 249.

[63]. Statute of the International Law Commission, G.A. Res. 36/39, U.N. Doc. A/RES/36/39, art. 1 (Nov. 18, 1981) [hereinafter ILC Statute].

[64]. Birnie et al., supra note 29, at 29.

[65]. Id.

[66]. ILC Statute, supra note 63, art. 15.

[67]. Birnie et al., supra note 29, at 30.

[68]. ICJ Statute, supra note 34, art. 38.

[69]. See Gabcíkovo-Nagymaros Project (Hung. v. Slovak.), Judgment, 1997 I.C.J. 7, ¶¶ 51–53 (Sept. 25) (citing directly to the ILC’s former Article 33 (current Article 25) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts as an acceptable expression of the doctrine of necessity).

[70]. Birnie et al., supra note 29, at 141.

[71]. Articles on Prevention, supra note 25, ¶ 3.

[72]. Id. art. 3, ¶ 1.

[73]. Id. art. 3, ¶¶ 11, 14.

[74]. Id. art. 3, ¶ 18.

[75]. Id. art. 3, ¶ 13 (noting that the “economic level of States is one of the factors to be taken into account in determining whether a State has complied with its obligation of due diligence”).

[76]. Id. arts. 4, 9, 10.

[77]. Id. art. 4, ¶ 2.

[78]. Id. art. 9.

[79]. Id. art. 9, ¶ 2.

[80]. Id. arts. 9–10.

[81]. Id. arts. 7–8.

[82]. See John H. Knox, The Myth and Reality of Transboundary Environmental Impact Assessment, 96 Am. J. Int’l L. 291, 291 (2002) (arguing that the “story” that environmental impact assessments are customary international law is simply “not true”).

[83]. Id. at 297.

[84]. Articles on Prevention, supra note 25, arts. 7–8.

[85]. Id. art. 8.

[86]. Id. art. 7, ¶ 6.

[87]. Id. arts. 8–10.

[88]. See discussion infra Part III.

[89]. Viñuales, supra note 24, at 253.

[90]. Application Instituting Proceedings, Pulp Mills on the River Uruguay (Arg. V. Uru.), 2006 I.C.J. Pleadings 2, ¶ 5 (May 6) [hereinafter Pulp Mills Application], available at http://www.icj-cij.org/docket/files/135/10779.pdf.

[91]. Id. ¶ 6 (emphasis added).

[92]. Id. ¶ 7.

[93]. Id. ¶ 6.

[94]. Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 135, ¶ 25 (Apr. 20).

[95]. Id. ¶ 31.

[96]. Pulp Mills Application, supra note 90, ¶ 10.

[97]. Pulp Mills, 2010 I.C.J. ¶¶ 32–33.

[98]. Pulp Mills Application, supra note 90, ¶ 12.

[99]. Id. ¶ 13.

[100]. Id. ¶ 14.

[101]. Id. ¶ 16.

[102]. Id. ¶ 20.

[103]. Id. ¶ 15.  Generally, pulp mills are factories that convert wood and other materials into fiber boards, which are then shipped to paper mills to be developed into paper.  Notably, pulp mills produce a distinctive and foul odor that can be detected for miles, although the odor itself is not environmentally harmful.  See Dorothy Thornton, Robert A. Kagan & Neil Gunningham, When Social Norms and Pressures are Not Enough: Environmental Performance in the Trucking Industry, 43 Law & Soc’y Rev. 405, 407 (2009) (noting that the results of one study on pulp mills showed that mill owners went out of the way to reduce unpleasant odors, even though environmental regulations did not require it).  Rather, the big problem with chemicals is water and air pollution as the production of pulp results in the “concurrent production of a large array of chemical by-products” which are often discarded into the environment.  Larry E. LaFleur, Sources of Pulping and Bleaching Derived Chemicals in Effluents, in Environmental Fate and Effects of Pulp and Paper Mill Effluents 21, 21 (Mark R. Servos et al. eds., 1996).

[104]. Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 135 (Apr. 20).

[105]. Pulp Mills Application, supra note 90, ¶ 24.

[106]. Id.

[107]. Pulp Mills, 2010 I.C.J. 135 ¶ 68.

[108]. Id. ¶ 48.

[109]. Id. ¶ 52.

[110]. Id.

[111]. Id. ¶¶ 77–79.

[112]. Id. ¶ 79.

[113]. Id. ¶ 78.

[114]. Id. ¶¶ 80–158.

[115]. Id.

[116]. Id. ¶ 96.

[117]. Id. ¶ 97.

[118]. Id. ¶ 98.

[119]. Id. ¶ 101 (citing Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. 4, 22 (Apr. 9)).

[120]. Id. ¶ 101 (emphasis added) (citing Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 29 (July 8)).

[121]. Id. ¶¶ 105–06, 111.

[122]. Id. ¶ 105.

[123]. Id. ¶¶ 106–07.

[124]. Id. ¶ 106.

[125]. Id. ¶ 119.

[126]. Id. ¶ 80.

[127]. See id. ¶ 33.

[128]. Id. ¶ 80.

[129]. Id.

[130]. See id. 33.

[131]. Id. ¶ 80.

[132]. Id. ¶ 158.

[133]. Id. ¶ 169.

[134]. Id. ¶ 265.

[135]. See id. ¶¶ 263–64.

[136]. Id. ¶ 170.

[137]. Id. ¶ 177.

[138]. Id. ¶¶ 190–266.

[139]. Id. ¶ 190.

[140]. Id. ¶ 197.

[141]. Id.

[142]. Id. ¶ 204.

[143]. Id.

[144]. Id. ¶ 205.

[145]. Id.

[146]. Id. ¶¶ 207–14.

[147]. Id. ¶¶ 229–59.

[148]. Id. ¶¶ 260–62.

[149]. Id. ¶ 265.

[150]. Id.

[151]. Id. ¶ 77.

[152]. Articles on Prevention, supra note 25, arts. 3, 9–10.

[153]. Pulp Mills, 2010 I.C.J. ¶ 276.

[154]. Owen McIntyre, The Proceduralisation and Growing Maturity of International Water Law, 22 J. Envtl. L. 475, 489 (2010).

[155]. Viñuales, supra note 24, at 257 (predicting that the Third Wave would further expound on the enforceability of IEL).

[156]. Djurdja Lazic, Introductory Note to the International Court of Justice: Pulp Mills on the River Uruguay (Argentina v. Uruguay), 49 I.L.M. 1118, 1120 (2010).

[157]. Pulp Mills, 2010 I.C.J. ¶ 101.

[158]. Id.

[159]. Id. ¶ 80.

[160]. Id.; Articles on Prevention, supra note 25, art. 8.

[161]. Pulp Mills, 2010 I.C.J. ¶ 101.

[162]. Articles on Prevention, supra note 25, art. 3.

[163]. Viñuales, supra note 24, at 253.

[164]. Pulp Mills, 2010 I.C.J. ¶ 204.

[165]. Id. ¶ 205.

[166]. Id. ¶ 106.

[167]. Id.; see also Pulp Mills Application, supra note 90, ¶ 10 (indicating that the Summary Environmental Report was provided by ENCE, the construction company in charge of the CMB mill).

[168]. Pulp Mills, 2010 I.C.J. ¶ 265.

[169]. Aerial Herbicide Spraying Application, supra note 9, ¶ 9.

[170]. Id. ¶ 37.

[171]. Id. ¶¶ 10–12.

[172]. Id. ¶ 10.

[173]. Id.

[174]. Id. ¶ 20.

[175]. Id. ¶ 19.

[176]. Id. ¶ 22.

[177]. Id. ¶ 23.

[178]. Id. ¶ 25 (noting that Ecuador was named by the World Conservation Monitoring Centre of the United Nations Environment Programme as “mega-diverse” and is one of seventeen countries worldwide to boast the title); see also id. (explaining that Ecuador has the world’s highest biological diversity per area unit, meaning that on average, there are more species per square kilometer in Ecuador than anywhere else in the world).

[179]. Aerial Herbicide Spraying Application, supra note 9, ¶ 28.

[180]. Id.

[181]. Id. ¶ 29.

[182]. Id. ¶ 30.

[183]. Rio Declaration, supra note 26, princ. 15.

[184]. Aerial Herbicide Spraying Application, supra note 9, ¶¶ 31, 33.

[185]. Id. ¶ 32.

[186]. Id. ¶ 38.

[187]. Id. ¶ 29.

[188]. Id. ¶¶ 10–12.

[189]. McIntyre, supra note 154, at 489.

[190]. Aerial Herbicide Spraying Application, supra note 9, ¶¶ 23, 29–30.

[191]. Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 135, ¶ 101 (Apr. 20).

[192]. Id. ¶¶ 14–15, 17, 18.

[193]. ICJ Statute, supra note 34, art. 36.

[194]. See generally Viñuales, supra note 24.

[195]. Articles on Prevention, supra note 25, art. 3, ¶ 11.

[196]. Id. art. 4.

[197]. Lazic, supra note 156, at 1120.

[198]. U.S. Dep’t of State, supra note 5; see also Juan Forero, In the War on Coca, Colombian Growers Simply Move Along, N.Y. Times, Mar. 17, 2001, at A1.

[199]. Romero, supra note 6, at A1.

[200]. See Staff of Senate Caucus on Int’l Narcotics Control, Onsite Staff Evaluation of U.S. Counter-Narcotics Activities in Brazil, Argentina, Chile, and Colombia, S. Doc. No. 105–41, at 16 (1995) (noting that the program lacks “serious overall coordination” and has “sparse resources” while its policies generate environmental protests); see also Kline, supra note 4, at 45 (noting that although the Minister of Defense Juan Manuel Santos reported in July 2006 that the situation was improving, “the army had not defeated FARC and had not captured any of the major leaders”).

[201]. U.N. Office on Drugs and Crime, Coca Cultivation in the Andean Region: A Survey of Bolivia, Colombia, and Peru 7 (2008), available at http://www.unodc.org/documents/crop-monitoring/Andean_report_2008.pdf.

[202]. Romero, supra note 6, at A1.

[203]. Bill Marx, Plan Fails to Curb Flow of Colombian Drugs, Buff. News, Nov. 25, 2003, at B11.

[204]. Some contend that because three hectares must be cleared for every acre of coca planted, the coca farmers are actually causing more environmental damage than the herbicide due to excessive deforestation, implying that spraying the herbicide is actually the more environmentally friendly option.  See Joseph Weir, The Aerial Eradication of Illicit Coca Crops in Colombia, South America: Why the United States and Colombian Governments Continue to Postulate its Efficacy in the Face of Strident Opposition and Adverse Judicial Decisions in the Colombian Courts, 10 Drake J. Agric. L. 205, 240 (2005).

[205]. See supra Part II.

[206]. Aerial Herbicide Spraying Application, supra note 9, ¶¶ 10–12.

[207]. Id. ¶ 30.

[208]. Rio Declaration, supra note 26, princ. 15.

[209]. See Owen McIntyre & Thomas Mosedale, The Precautionary Principle as a Norm of Customary International Law, 9 J. Envtl. L. 222 (1997).

[210]. Id.

[211]. See id.

[212]. Id. at 224–25; see, e.g., Mark Guarino, EPA Scolds BP in Gulf Oil Spill: Dispersant is Toxic, Change It, Christian Sci. Monitor, May 20, 2010, http://www.csmonitor.com/USA/2010/0520/EPA‑scolds‑BP‑in‑Gulf‑oil‑spill‑dispersant-is-too-toxic-change-it; Oil Spill Dispersant (COREXIT ®EC9500A and EC9527A) Information for Health Professionals, Ctrs. for Disease Control and Prevention, (Sept. 14, 2011, 11:41 AM), http://www.bt.cdc.gov
/gulfoilspill2010/dispersants_hcp_info.asp.

[213]. Rio Declaration, supra note 26, princ. 15.  See Aerial Herbicide Spraying Application, supra note 9, ¶ 30.

[214]. Birnie et al., supra note 29, at 156 (emphasis added).

[215]. See supra text accompanying note 3.

[216]. See supra notes 175–78 and accompanying text.

[217]. Aerial Herbicide Spraying Application, supra note 9, ¶ 29.

[218]. See Esposito, supra note 27, at 52.

[219]. Compare Gabcíkovo-Nagymaros Project (Hung. v. Slovak.), Judgment, 1997 I.C.J. 7, ¶ 53 (Sept. 25), with Articles on State Responsibility, supra note 29, art. 25.

[220]. Articles on State Responsibility, supra note 28, art. 25.

[221]. Gabcíkovo-Nagymaros, 1997 I.C.J. ¶ 51.

[222]. Id. ¶ 14.

[223]. Id.

[224]. U.S. Dep’t of State, supra note 5.

[225]. Articles on State Responsibility, supra note 28, at art. 25, ¶ 15.

[226]. Id.

[227]. Fernando Henrique Cardoso, César Gaviria & Ernesto Zedillo, The War on Drugs is a Failure, Wall St. J., Feb. 23, 2009, at A15.

[228]. Id.

[229]. Articles on State Responsibility, supra note 28, at art. 25, ¶ 17.

[230]. See Viñuales, supra note 24, at 248–49 (explaining that part of the Second Wave’s value was the declaration in Gabcíkovo-Nagymaros that environmental interests are in fact essential interests that can be protected in and of themselves under the doctrine of necessity).

[231]. Kline, supra note 4, at 193.

[232]. Id.

[233]. Id. at 199.

* J.D. Candidate, May 2012, Wake Forest University School of Law.  The author thanks Dale & Suzanne Rutledge and Austin Watson for their constant encouragement and patience, and Katie Heath for her inspiration and many hours of help with this piece.

Article in PDF Form

By: Matthew J. Wilson*

Introduction

The global influences that pervade the typical modern-day existence are sweeping both in scope and function.  Products and services provided by organizations and individuals from different parts of the world are everywhere.  Take the United States for example: automobiles and electronics on U.S. streets are designed and manufactured in Asia; gasoline stations sell gasoline exported from the Middle East and South America; stores sell clothing sewn in China, Southeast Asia, and Europe; grocery stores stock food and fruit shipped in from Africa and South America; financial services affecting U.S. interests are rendered in Tokyo, Hong Kong, London, and elsewhere; and a number of entities even provide customer service from call centers in India.  Similarly, the list of foreign products and services available to domestic consumers in most countries is seemingly endless.  This global reality has advanced further due to the explosion of electronic commerce.  In cyberspace, a cross-border transaction is no further than one click away and really no more difficult than conducting a transaction with a cross-town entity.  In recent years, the interconnected nature of the global economy has been highlighted by various events including the transnational fallout from the U.S. housing market subprime mortgage debacle in 2007[1] and the Japanese tsunami in March 2011 that crippled manufacturers around the world after they were unable to readily obtain valuable parts manufactured in Japan.[2]

With the proliferation of globalization and international commercial interaction, an increasing number of entities have entered into contractual relationships or faced legal issues that transcend ordinary domestic norms.  Activities or relationships that traverse international boundaries can give rise to a host of legal uncertainties, starting with the governing law.  In fact, many situations arise in which the laws of multiple nations can govern the same conduct or relationships.  For example, the laws of several nations might apply when a party ships goods that are damaged en route from Europe to the United States on a Swedish ship, owned and operated by a Panamanian corporation, due to negligent repairs to the ship in South Korea.  Other situations may compel domestic courts to interpret and apply the laws of another sovereign or “foreign law,” such as when a commercial contract contains a stipulation about the application of foreign law or when a court exercises jurisdiction over tortious conduct committed overseas.  There are even domestic statutes that expressly incorporate the laws of foreign sovereigns.[3]

The increasing interaction among parties from different countries in both conventional and cyber settings has naturally resulted in more civil disputes on an international scale.  In resolving such disputes, it is generally accepted that a nation may prescribe law and adjudicate disputes involving the conduct of: (i) anyone acting within its territory; (ii) its citizens, regardless of the location of their conduct; (iii) non-nationals acting outside of its borders if such conduct has significant and intended effects within the nation; (iv) those threatening its sovereignty or security; and (v) those engaging in universal crime such as genocide.[4]  If a national court exercises jurisdiction over a dispute, it must then determine which substantive law applies.

Without question, the application of a certain body of substantive law in a lawsuit can be outcome determinative.[5]  Accordingly, it is important to correctly determine the applicable substantive law.  National courts and arbitration bodies frequently find it necessary to apply foreign law due to the explosion of international disputes.  In the words of Jonathan Lippman, Chief Judge of the New York State Court of Appeals, “[D]omestic courts are increasingly called upon to decide cases that involve cross-border issues and require the determination and application of foreign law.”[6]  Global commerce depends on a stable, predictable, and fair system of dispute resolution.  The proper functioning of private international law in a domestic system is based on the appropriate application of law.  In fact, a national court’s adjudication of a foreign law claim can provide such stability and fairness.  Moreover, adjudication of substantive foreign law claims in domestic courts is possible without infringing on the interests of another sovereign.  Also, the resolution of foreign law claims in national courts is generally consistent with comity and amicable commercial relations between nations.  It is akin to recognizing the legitimacy and application of the foreign state’s law.

The application of foreign law is generally based on mutual agreement or domestic rules.  In international contractual settings, parties typically negotiate for the laws of a certain jurisdiction to govern their relationship and may even designate a specific court to handle any future disputes.[7]  Predetermination of the applicable law not only molds conduct, but it also can reduce or eliminate the uncertainties associated with the underlying transaction.  In the case of the United States, domestic and foreign parties may elect to explicitly stipulate to the use of foreign law in U.S. courts.[8]  Alternatively, said parties may choose only to apply foreign law without designating an exclusive forum and essentially end up in a U.S. court having jurisdiction over the parties.  If the transactions underlying the international contract have some relationship to the law of the selected forum, then courts will typically honor such an agreement.[9]  In other cases, though, international contracts may be silent on choice-of-law issues.  In cases involving such silence or when international dealings involve noncontractual matters (for example, torts, intellectual property, employment law, or property), the parties must rely on choice-of-law rules in the forum handling the lawsuit.[10]  If a lawsuit is filed in either U.S. federal or state court, a variety of different tests have arisen to facilitate a choice-of-law determination.[11]  These tests can result in the application of foreign law in U.S. court as a court does not need to decide a legal issue, claim, or dispute according to its own law.

U.S. courts commonly encounter claims and issues that are governed by the laws of another sovereign either by virtue of mutual agreement or choice-of-law rules.[12]  Although many courts employing modern choice-of-law rules tend to favor the selection of their own forum’s law,[13] they continue to apply foreign law to resolve conflicts arising out of contractual relationships, tortious conduct, employment matters, intellectual property rights, treaties, and domestic statutes incorporating foreign law, as well as other legal foundations.[14]

In the United States, courts are presumed competent to apply foreign law.[15]  However, many are hesitant to delve into territory comprised of unfamiliar legal rules and norms.[16]  Most judges have neither intensively studied nor practiced foreign law; thus, their expertise in the law of another country is much lower in comparison with domestic law.  Moreover, adjudicators trained in common law jurisprudence are likely to be less comfortable looking at the application of law formulated in a civil law system.  In light of these challenges, U.S. judges who are not trained in or familiar with foreign law systems may fear that cases involving foreign law are extraordinarily difficult and time consuming to resolve.[17]  Based on such fear, the judges may directly or indirectly look for ways to dismiss cases involving foreign law on the grounds that the forum selected by the plaintiff is inconvenient or otherwise unsuitable.  Oftentimes, these fears and resulting dismissals are not justified.

When U.S. federal and state courts face cases involving foreign law, they have a broad range of tools available to compensate for actual or perceived fear of inadequacy.  Courts can turn to expert witnesses who have studied or practiced the foreign law for guidance and direction.  They may also rely on English-language or translated books, treatises, statutes, cases, legal aids, and online legal materials to determine the applicable foreign law.

Serious concerns, however, can arise when the litigants or legal materials available to the court paint conflicting pictures of the relevant foreign law.  U.S. courts have a keen recognition that foreign law needs to be precisely applied and that a mistaken application could influence the final outcome of the lawsuit.  Unlike purely domestic cases, a court might be hesitant to rely on its own resources to resolve the conflict.  Attempting to capitalize on such hesitation, a litigant seeking to avoid the use of foreign law may purposefully seek to “muddy the waters” by painting an overly complicated picture of foreign law, even if the law is simple and fairly straightforward.  The litigant’s primary goal is frustrating the court to the point of dismissal or resignation to domestic law.  In addition, some courts and academics have openly questioned the reliability of expert testimony on foreign law.[18]  The legal practitioners or professors serving as foreign-law experts are paid for their testimony, and, consequently, their neutrality has been questioned on the premise that a litigant would never select an expert absent a willingness to advance interpretations only consistent with said litigant’s position.[19]

In light of these concerns and the continuing hesitation to apply foreign law, there must be additional ways for U.S. courts to accurately determine foreign law.  In fact, given the proliferation of international commercial disputes and integration of our global society, the number of disputes involving foreign law should continue to rise.  Court systems and parties alike benefit from the fair, objective, and expert resolution of questions of foreign law.  Accordingly, it is time for U.S. court systems to explore more precise, efficient, and effective ways of determining and applying foreign law.  In the U.S. context, federal and state courts also need to improve predictability and promote efficiency in private international litigation by willingly adjudicating cases involving foreign law, instead of seeking to avoid such cases.  Through the reliable and efficient application of foreign law, U.S. courts can persuade other nations to do the same by virtue of their example.

This Article explores the tools currently available to U.S. courts to determine foreign law.  In addition to taking better advantage of all of these tools, U.S. court systems should seriously consider adopting innovative mechanisms to ensure the fair, objective, and expert application of foreign law.  This Article explores the availability and advisability of such mechanisms, including the possibility of directly soliciting the assistance of foreign courts and governments when serious doubts arise or there are unsettled questions of foreign law.  In examining these important issues, Parts I and II examine the application of foreign law and techniques currently available to U.S. courts to determine foreign law.  Part III assesses the shortcomings of these techniques and related concerns addressed by judges and observers.  Part IV then sets forth the argument that now is the time to seek out and implement more effective techniques and tools to determine foreign law in U.S. courts.  It is important for U.S. courts to avoid unnecessarily shying away from the application of foreign law, particularly given the increasing prevalence of global interaction.  The remaining Parts of this Article show that innovative and enhanced techniques may not only help courts streamline the process of determining foreign law, but may also help increase the accuracy of doing so.

I.  Application of Foreign Law in the United States

U.S. federal and state courts regularly apply the law of other sovereigns.  Most lawsuits in the United States that involve foreign law are handled by federal courts, based on the diversity of the parties or desire of parties engaged in foreign commerce to resolve their disputes in a federal forum.[20]  Claims based on foreign law may also find their way into federal court pursuant to supplemental jurisdiction.[21]  Federal court diversity jurisdiction promotes global commerce by theoretically providing an impartial forum comparatively isolated from potential local biases.[22]  As such, lawsuits filed in state courts that involve foreign parties or foreign law are often removed to federal courts.[23]  Because of the tendency of foreign law issues to gravitate toward federal court, this Article focuses primarily on the U.S. federal court system.  However, where appropriate, references are made to state court procedure.  Also, the suggested tools and techniques made herein to more efficiently and accurately determine foreign law apply equally to U.S. state courts.

II.  Application of Foreign Law in U.S. Courts is Common and Much Easier in this Age of Globalism and Technology

U.S. federal courts have long had the authority to resolve disputes that require the application of substantive foreign law.  If state conflict-of-laws rules require the application of foreign law, then the federal courts must apply it.[24]  Federal courts are quite capable of applying foreign law[25] and have routinely applied the law of other sovereigns.  In fact, U.S. courts have evaluated and applied foreign law for over a century.[26]  The application of foreign law has become even more common with the expansion of global commerce and trade.  Private parties in international commerce regularly insert choice-of-law clauses into their contracts, specifying the application of the law of sovereigns other than the United States.[27]  U.S. federal courts typically recognize and enforce such clauses based on existing law and the mutual intent of the parties.[28]  Moreover, federal courts have adjudicated foreign law claims in a wide variety of contexts.  By way of illustration, courts have ascertained and applied foreign law in diverse matters involving contract law,[29] tort law,[30] employment law,[31] conversion law,[32] trademark law,[33] securities law,[34] family law,[35] bankruptcy law,[36] intestacy law,[37] copyright law,[38] admiralty law,[39] and various other areas.[40]  To apply foreign law, it is not necessary for courts to master foreign law.  In this age of global commerce, it is not incredibly difficult for federal courts to apply foreign law.  In fact, it is much easier now than ever before given the availability of expert witnesses as well as burgeoning print and electronic materials covering foreign law.

In the modern era, foreign law and legal systems have become much easier to research and understand, particularly with countries commonly engaged in international commerce.[41]  As the U.S. Court of Appeals for the Seventh Circuit emphasized in a 2010 decision, the law of most nations that “engage in extensive international commerce is widely available in English.”[42]  The Internet also provides wider access to sources of law that were not previously readily available to either the courts or general public.[43]  Many governmental and intergovernmental entities now have their own open-access websites complete with English language translations of statutes, regulations, and even court decisions.[44]  There has also been recognition and push for greater and freer access to electronic materials on foreign law.[45]

Japan is a prime illustration on the availability of materials.  English-language materials about Japanese law are available in various formats including articles, treatises, and law school casebooks.[46]  Many of these resources are available both in print and online through governmental, private business, legal, and academic websites.[47]  Judgments of the Supreme Court of Japan are even posted online in English.[48]  Other relevant non-English legal resources can typically be translated for use by the court.  In fact, U.S. federal courts can, and often do, refer to translated materials, in cases such as commercial disputes, criminal cases, and immigration proceedings.[49]  Although these materials may still need further explanation regarding their context, the availability of materials enhances a court’s ability to independently confirm the scope and nature of foreign law.

III.  Reluctance of U.S. Courts to Readily Apply Foreign Law Still Persists

Despite the ready accessibility of foreign law materials and expertise, U.S. courts may still struggle with the application of foreign law.  Although foreign law issues are becoming more prevalent, some courts have been accused of “ducking and running” when faced with foreign law issues.[50]  Some U.S. judges express discomfort with investigating and applying foreign law and typically discount any duty to handle transnational litigation based on the premise of global responsibility.[51]  Opposition to applying foreign law is seen in the form of liberal forum non conveniens dismissals, using domestic law if the litigants do not raise or sufficiently brief foreign law issues, or leaning heavily toward domestic law when conducting a choice-of-law analysis.[52]

There is a plethora of reasons underlying the tendency to sidestep foreign law, apart from justifiable refusals based on public policy grounds.  First, unlike the process of interpreting and applying domestic law, U.S. judges dealing with foreign law generally cannot draw on a lifetime of experience.[53]  In comparison with their American law training, U.S. judges receive limited training in applying foreign law.  State court judges are typically not formally trained in applying foreign law, and newly appointed federal judges only receive basic instruction from the U.S. States Judicial Conference about dealing with foreign law issues.[54]  In general, American legal education fails to systemically equip future judges and attorneys to conduct research on foreign law.[55]  In fact, judges and their law clerks may receive only limited exposure to international law or transnational legal matters during their law school studies, unless they have made it a point to specialize in these areas.  Although law students should devote more time to the study of comparative and foreign law,[56] U.S. law schools generally offer courses on international, comparative, and foreign law only on an “elective” basis.  Moreover, these courses typically are not emphasized by most academic administrators.

Second, judges perceive that foreign law may be difficult to ascertain.  Beyond the limited foreign law offerings on LexisNexis and Westlaw, there is no central legal database that provides comprehensive materials on the law of all countries.[57]  Although Westlaw and LexisNexis maintain separate legal databases for some foreign countries, these require separate contracts and additional charges.[58]  More significantly, even if judges and attorneys could access these or other foreign law databases, any foreign language materials would likely be incomprehensible absent translation.

Third, some courts may perceive foreign law as a “mystery” that will be time intensive to discern and difficult to analyze.[59]  Pertinent statutory and case materials may originate in another language and could encompass a different legal tradition.  As such, there is a fear of the unknown posed by ascertaining and applying foreign law.[60]  Accordingly, courts are increasingly receptive to motions to dismiss based on forum non conveniens grounds when dealing with international cases that involve foreign law.[61]  With a motion to dismiss based on forum non conveniens, the “need to apply foreign law” factor is commonly raised as an argument in favor of dismissal.  Although the U.S. Supreme Court has noted that the need to apply foreign law “alone is not sufficient to warrant dismissal when a balancing of all relevant factors shows that the plaintiff’s chosen forum is appropriate,”[62] some courts continue to give undue weight to this factor.[63]  In fact, some have argued that the forum non conveniens doctrine, as formulated by the U.S. Supreme Court, actually encourages dismissal.[64]  Without question, the ability to discover and apply foreign law is much less difficult today than it was when the U.S. Supreme Court set forth its standard in Piper Aircraft Co. v. Reyno[65] nearly thirty years ago.  Accordingly, dated concerns about foreign law now lend false support to forum non conveniens dismissal based on false assumptions.[66]

Fourth, some courts have been slow to embrace anything foreign.  Some have overtly demonstrated their aversion to foreign related matters.[67]  Others have quickly dismissed or transferred cases in a more reserved fashion.[68]  Even the treatment of international treaties has been spotty.  Although the U.S. Constitution specifies that treaties are the “supreme law of the land,” the U.S. State Department’s publication of treaties is seriously lacking.[69]

Finally, the pressure for increased training of the judiciary or reform of the system to address foreign law claims is relatively low due to the comparatively large number of domestic cases handled by federal and state courts.[70]  For example, U.S. state courts handle about forty million cases annually, and federal courts handle about three hundred thousand cases.[71]  Only a fraction of these cases involve the direct application of foreign law.  However, this is of little or no consequence to private litigants embroiled in cross-border disputes or courts that handle a large number of transnational disputes.  In fact, there are certain courts, such as the U.S. District Court for the Southern District of New York, which constantly face foreign legal issues due to their handling of cases involving multinational corporations and foreign matters.

IV.  Current Techniques and Tools for Embracing and Applying Foreign Law in U.S. Federal Courts

The reasons underlying judicial aversion to foreign law are overblown.  Courts have a litany of resources, techniques, and tools to draw upon when faced with issues of foreign law.  Taking full advantage of these tools is important because there are negative consequences when foreign law is not applied or is interpreted incorrectly.  In such cases, the stability and certainty required by those engaged in global commerce are potentially undermined.[72]  Commercial parties often structure their transactions around a specific substantive law and purposefully avoid laws inappropriate for their transaction.[73]  Additionally, the application of foreign law can discourage forum shopping, promote regulatory competition, and preserve the comparative regulatory advantage of foreign jurisdictions.[74]  If cases involving foreign law are quickly dismissed, not only will the immediate litigants potentially be prejudiced, but at least one commentator has noted that “ad hoc efforts” to limit court access to parties involved in a transnational dispute could lead to retaliatory legislation in foreign countries aimed at making foreign courts more hospitable for significant claims against U.S. defendants.[75]  Accordingly, it is time for U.S. courts to embrace foreign law when appropriate and explore ways to improve upon the current system and techniques for addressing foreign law.

A.            Current Procedures Support and Facilitate the Application of Foreign Law

Procedurally, the application of foreign law is uncomplicated.  Once it has been established, through notice or hearing, that foreign law will apply, parties may present the court with foreign law materials or the court will instruct the parties to present evidence and supporting materials regarding the relevant foreign law at some point before the trial.[76]  Naturally, a court may also conduct its own research about such law.[77]  The court will then determine the meaning of the foreign law and instruct the jury on such meaning—just as it would do in the case of domestic law.[78]  However, evaluating other legal systems can present some challenges.  As such, the U.S. federal court system presents various techniques and tools to overcome such challenges.  Many U.S. state jurisdictions provide similarly broad tools and resources.[79]

In the context of federal court proceedings, Federal Rule of Civil Procedure 44.1 (“Rule 44.1”) provides procedural guidance for the application of foreign law in federal court.  Rule 44.1 states that:

[a] party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing.  In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.  The court’s determination must be treated as a ruling on a question of law.[80]

Rule 44.1 is a broad, straightforward rule that has presented few practical difficulties in its application.  In essence, it provides federal courts with a uniform mechanism for adjudicating foreign law claims when a party provides notice of its desire to apply foreign law.[81]  Rule 44.1 is based on the belief that determining questions of foreign law is not beyond the capacity of the federal courts.[82]  Of note, many U.S. states have implemented the Uniform Judicial Notice of Foreign Law Act or other rules, which function similarly to Rule 44.1.[83]  These rules likewise recognize the competency of the state courts to apply foreign law.

Rule 44.1 was implemented in 1966.[84]  In effect, this shifted the determination of foreign law from a question of fact to a question of law.[85]  When U.S. courts treated foreign law as a question of fact prior to the adoption of Rule 44.1, the jury needed to decide foreign law based on competing proofs presented by the parties at trial.[86]  This was done pursuant to the rules of evidence via the time-consuming process of soliciting expert witness testimony in open court.[87]  Also, because foreign law was considered a question of fact, it could only be set aside by an appellate court if shown to be clearly erroneous.[88]  This cumbersome system was arduous for the parties[89] and often resulted in imprecise rulings[90] that were essentially immunized from independent review by the appellate courts.[91]  With the adoption of Rule 44.1, the determination of foreign law is now a question of law, at least in principle.[92]  This means that questions of foreign law are subject to independent judicial investigation, and open for de novo appellate review.[93]

B.            Courts May Use Any Relevant Material to Determine Foreign Law

Pursuant to Rule 44.1, federal courts may consider “any” material relevant to foreign law that the parties wish to present.[94]  Upon notice of a foreign law issue, courts may look to any material or resource, whether from counsel or identified by the court’s own research, and whether admissible or inadmissible at trial.[95]  In principle, a judge can consider the testimony of expert witnesses proffered by the litigants, reports by a court-appointed expert or master, and even research independently obtained from conventional, online, or unconventional resources.[96]  In fact, a judge could even consult with foreign scholars or others well-versed in the applicable law on an ex parte basis.[97]

Although judges most often rely on experts hired by the parties for information on foreign law, they are not required to base their determination of foreign law on an expert opinion.[98]  Additionally, Rule 44.1 contemplates that courts “may” rather than “must” consider expert testimony.[99]  Moreover, it is within the court’s discretion to “reject even the uncontradicted conclusions of an expert witness and reach [its] own decisions on the basis of independent examination of foreign legal authorities.”[100]

It is the litigants’ duty to provide the court with materials that help identify issues, ascertain the foreign law, and apply such law.[101]  These materials cannot attempt to guide a court on making factual determinations.[102]  Materials demonstrating the applicable foreign law do not need to be sworn, verified, or presented in any specific form.  In fact, courts have considered unauthenticated copies and translations of foreign law,[103] and have even taken informal materials into account such as a printout from a foreign law firm’s webpage[104] and a conversation between a law clerk and the Hong Kong Trade Office in New York City.[105]  Naturally, however, litigants are best served by presenting concrete proof of foreign law in the most credible form.[106]  In weighing proofs of foreign law, courts will afford the most credibility to verifiable proofs.

The requirements associated with Rule 44.1 were deliberately left flexible and informal so that counsel and the court could have a cooperative dialogue regarding the determination of foreign law.[107]  This flexibility should dissipate any court’s inhibition about considering a wide variety of materials related to the application of foreign law.  In essence, a court’s freedom of inquiry is not “encumbered by any restraint on its research or by rules of admissibility.”[108]  Not only may a court consider “any material the parties wish to present,” but it may give materials submitted by the parties any probative value that the court thinks they deserve.[109]  This methodology provides the court with maximum flexibility.[110]  In sum, the flexible procedures in Rule 44.1 combined with the ease of communicating about foreign law and expanded learning opportunities about foreign legal systems signify that the application of foreign law should not be an obstacle.[111]

C.            Expert Testimony is the Primary Method of Establishing Foreign Law

In practice, the primary method used to establish foreign law is through an affidavit or declaration submitted by foreign-law experts hired by the litigants.[112]  This sworn statement is generally accompanied by extracts from relevant foreign codes and statutes.[113]  The value of expert testimony on foreign law is enhanced because the expert can provide the court with information about the sources of law, hierarchy of law, legal interpretation, and other matters not readily ascertainable or necessarily apparent on the face of foreign legal materials.  Without assistance from someone intimately familiar with foreign law, an American judge might miss the nuances in the law, fail to appreciate the interaction between law and foreign governmental organizations, or erroneously assume that foreign law mirrors U.S. law when it does not.[114]  There are many times when testimony from an acknowledged expert in foreign law will be helpful, or even necessary, to ensure that the U.S. judge understands the full context of a foreign law or legal principle.[115]  In some instances, expert testimony may be the only way to establish foreign law.  For example, in Saudi Arabia where Islamic law is applied, judicial decisions are generally neither published nor open for public inspection.[116]  Instead of relying on case law or written statutes, Saudi Arabian judges must navigate the Hanbali’s school of authoritative scholarly works to identify the spectrum of possible resolutions.[117]  For a judge unfamiliar with Saudi Arabian law, expert testimony is particularly crucial to correctly identifying and deciphering the law.

Based on these reasons and the judicial time saved by relying on experts for guidance and direction, foreign law expert declarations have been, and will likely continue to be, the basic mode of proving foreign law.[118]  In fact, the presentation of foreign law through expert witnesses is typically efficient and sufficient for a court.[119]  The use of an expert to provide needed precision on foreign legal issues eliminates the need for the court to start afresh and wade through secondary sources.[120]

In general, Rule 44.1 does not require any special qualifications for foreign-law experts.[121]  Because the district judge will determine foreign law, the judge essentially serves as the gatekeeper.[122]  As such, the court has significant discretion in the sources it considers.[123]  As explained by the U.S. Court of Appeals for the Second Circuit, “it is not the credibility of the experts that is at issue, it is the persuasive force of the opinions they expressed.”[124]  An expert witness’ actual knowledge will determine the weight that the judge awards to the testimony of said expert.  If an expert’s knowledge about foreign law is reliable and exceeds that of the judge, the court will likely carefully consider any submissions from said expert.  Typically, courts will give deference to materials submitted by foreign practitioners or law professors versed in the applicable foreign law.[125]  In proffering expert testimony to a court, it is crucial for litigants to utilize someone who can amply communicate the substance and nuances associated with foreign law.  In fact, “the best source of foreign law is said to be an expert who has studied the foreign law, has practiced law in the country of its origin, and can translate and interpret it in the idiom of the American attorney.”[126]  At the same time, courts will likely discount self-serving affidavits and will be more receptive to considering objective explanations of the pertinent law.

In principle, the determination of foreign law does not stray too far from the process of determining domestic law.  In fact, the adoption of Rule 44.1 was designed—to the extent possible—to make the process of determining foreign law mirror the method of ascertaining domestic law.[127]  More specifically, the litigants research and present the relevant law to the court for consideration.  Identical to domestic practice, the court then has the task of determining the relevant law.  At this point, the process may slightly diverge in that the court may need some additional assistance.  Foreign-law experts can help streamline the time necessary to research and interpret foreign law by providing fundamental information.  This can be done solely through written submissions, or the court may entertain live expert witness testimony.[128]  If necessary, the court may also compel the parties to present additional materials or information about foreign law at the risk of dismissal or other negative consequence.[129]  In contrast, judges typically do not leave the determination of domestic law to competing experts.[130]  Rather, taking into account the briefs and other proofs of law presented by the parties, the judges and court clerks independently investigate domestic law issues raised by the parties and then render a conclusion of law without the assistance of experts.

D.            Courts May Engage in Independent Research About Foreign Law

In addition to the litigants’ submissions, a court may also conduct its own research and independently investigate any foreign-law issue raised by the parties.[131]  If necessary, a court may use articles, treatises, scholarly commentary, and judicial opinions for guidance and affirmation about the correct foreign-law interpretation.[132]  Many nations have well-developed legal systems with ample primary and secondary resources in English, available both in print and online, from which courts can conduct legal research and investigation.[133]  If materials are unavailable in English, translation is certainly possible.  In fact, U.S. courts can, and often do, refer to translated materials, including in commercial disputes, criminal cases, and immigration issues.[134]  Independent research enables judges to fill gaps or doubts left by the parties’ submissions.  It also allows them to confirm the accuracy of presented materials.

In reality, many federal judges still remain reluctant to actively investigate foreign-law issues.[135]  Instead, judges heavily lean on expert testimony,[136] or lean toward dismissing a foreign-law claim based on forum non conveniens or avoiding foreign law altogether.[137]  Similarly, state court judges tend to “rely heavily on party presentation” and generally avoid conducting independent research on foreign law.[138]

V.  Shortcomings of Techniques and Tools Used to Determine Foreign Law

The primary challenge that courts face when dealing with foreign law is ensuring its correct application.  Obtaining precise information about foreign law furthers the goals of justice and fairness.  A related challenge is finding sufficient comfort with the testimony and sources of law either presented by the litigants or located by the court’s research.  In any legal system, courts may struggle to ascertain and apply foreign law.  In fact, it has been postulated that many judges fear the unknown associated with foreign law.[139]  However, in most cases, litigants present foreign law in a complete and fair manner, thereby enabling courts to wrap their arms around the relevant law.[140]  Expert affidavits, together with accompanying codes, statutes, and regulations, are typically sufficient.[141]

In contrast, if a court cannot determine foreign law to its satisfaction based on available techniques and tools, then it faces the prospect of incorrectly applying the law.  This poses a substantial risk and potentially prejudices the litigants’ interests and rights.  Moreover, the frustration associated with the inability to readily determine the applicable legal principles may cause judges to shy away from the future handling of foreign law.

There is no universally accepted solution to the dilemma of unclear or indeterminable foreign law.[142]  In some cases, a court might require supplemental briefing by the parties or independently appoint an expert on foreign law.[143]  Alternatively, the judge might give up and simply decide to either apply domestic law or dismiss the case altogether.[144]  These two options are undesirable as they potentially ignore the express intent underlying the litigants’ commercial relationship, contravene applicable choice-of-law rules, or even prejudice the litigants’ rights.  For example, if a court automatically defaults to domestic law and thereby applies incorrect legal principles, this choice could likely determine the outcome of the lawsuit.

While the current techniques and tools available to U.S. judges to address foreign-law issues are largely unrestricted, they are neither perfect nor complete.  In fact, despite the expanded options available to judges since the adoption of Rule 44.1 five decades ago, U.S. courts “have been slow to apply foreign law.”[145]  This begs the question of whether the available techniques and tools have contributed to U.S. courts’ relative reluctance to embrace the application of foreign law.  With the current caseload involving foreign law and prospect for growth, now is the time to re-examine the current system and consider potential improvements to the process of determining and applying foreign law.  Courts and litigants alike stand to benefit from enhancements.  The following Part looks at shortcomings of the current system and serves as a springboard for discussing possible improvements.

VI.  Potential Problems with Over-Reliance on Paid Experts

Experts play an invaluable role in helping courts understand, analyze, and apply foreign law.  However, trying to establish foreign law through expert testimony can be an expensive proposition.[146]  An over-reliance on private experts can pose a myriad of dangers as well.  Dependence on foreign-law experts pivots on their reliability.[147]  If an expert is not objective or reliable, then a court must turn to other sources to determine foreign law.

When courts rely heavily on foreign-law experts hired by the parties, it adds an adversarial spin to the proceedings.[148]  Charges of lack of objectivity or bias can easily arise.[149]  One expert witness hired to participate in a transnational lawsuit noted his difficulty in resisting the “subtle temptation” to join his client’s team, take his client’s side, conceal doubts, overstate the strong, and downplay the weak aspects of the case.[150]  In my own personal involvement with transnational litigation, I have similarly witnessed these temptations.  Others have gone further in characterizing foreign-law experts as partisan “guns for hire.”[151]  In Sunstar, Inc. v. Alberto-Culver Co.,[152] Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit noted that articles, treatises, and judicial opinions on foreign law are “superior sources”[153] when examining foreign law because the practitioners or professors serving as foreign-law experts are “paid for their testimony” and selected based on the “convergence of their views” with their client’s litigating position or “their willingness to fall in with the views urged upon them by the client.”[154]  Judge Posner maintained that relying on “paid witnesses to spoon feed judges” can only be justified in cases in which foreign law comes from a country with an obscure or poorly developed legal system.[155]  In such cases, a judge could be hindered from securing ample secondary materials from which she can determine the law.[156]

Expert testimony should not be automatically discounted on grounds of bias, and Judge Posner’s view of foreign-law expert testimony can be challenged as extreme.  Experts are an integral part of the U.S. litigation system in many respects, and judges function as gatekeepers in deciding whether to accept or discount an expert’s particular testimony.[157]  Knowledge that courts will screen and weigh a foreign-law expert’s testimony actually encourages experts and litigants to produce reliable assistance to the court, or risk defeat due to the lack of usable expert testimony.[158]  The prospect that the court can appoint its own expert witness also functions as a deterrent against subjective testimony or games.[159]  Moreover, courts have the authority to sanction parties or their counsel for acting in bad faith or breaching applicable disciplinary codes.[160]  If the testifying expert is a member of a U.S. bar, the court’s power to discipline or sanction the expert further encourages objectivity.  When foreign lawyers testify as foreign-law experts, their conduct may also be governed by the professional codes of conduct and ethical obligations in their respective countries.[161]  Finally, private considerations such as the maintenance of credibility or an unblemished reputation compel experts to provide accurate testimony and credible supporting materials to the court.[162]

If competing experts fail to provide a clear or uniform view of foreign law through their submissions, however, a court may experience difficulty determining the substance or scope of the applicable foreign law.  The information and interpretations provided by party-hired experts may clash, thereby leaving a court with the difficult task of parsing out the undisputed matters of law and those matters disputed in a “battle of the experts.”  If a court is unfamiliar with the foreign law in question, it will then face the task of making determinations about unfamiliar provisions of foreign law.  This process can potentially be difficult and time consuming.

Another concern in assessing foreign law is a litigant’s capacity to purposefully confuse the court.  For example, if a defendant wants to convince a court that a claim or lawsuit should be dismissed based on forum non conveniens grounds, it may strategically seek to present convoluted materials, conflicting translations of statutory provisions, or contradictory case law.  Even if the law is relatively simple and straightforward, a litigant may attempt to paint a picture of confusion by seeking out an expert that will directly contradict the foreign law as explained by the opposing party.  Even if a party does not purposefully attempt to confuse the court, it might happen anyway.  In fact, a certain degree of confusion may be inevitable.  By analogy, if a judge were to ask five American lawyers about their interpretation of a particular area of U.S. law, these lawyers might provide several different answers.  This is true in foreign settings as well.  Because foreign law may be difficult to apply in certain instances, particularly when the judge is bombarded with different interpretations of the law, a court may be forced to spend time parsing out the applicable law stipulated by the parties and then deciding the scope and nature of the dispute’s legal provisions on its own.

Finally, the “traditional mechanisms for determining questions of foreign law by means of expert evidence have been shown on many occasions to be costly, prone to delays and other difficulties, and, most significantly, just plain wrong too often.”[163]  Courts are particularly sensitive to costs and delays.  More than anything, however, courts strive for accuracy and justice.  Without confidence in the correctness of foreign law as presented by expert witnesses, judges will continue to struggle with and be slow to embrace the application of foreign law.

VII.  Problematic Issues with Relying Heavily on Independent Research by the Courts

Although Judge Posner opined that articles, treatises, and judicial opinions on foreign law are “superior sources” in comparison with expert testimony,[164] there are several challenges associated with a court conducting independent legal research.  First, some judges maintain that they do not have time to locate, decipher, or decode foreign law.[165]  If a court must start from scratch in ascertaining foreign law and related issues, this will unnecessarily cause the courts to expend extra time and resources researching an unfamiliar area.  Courts can streamline the process of determining foreign law considerably by turning to academics, practitioners, and others well-versed in the relevant foreign law for guidance and direction.

Additionally, when U.S. judges actually resort to independent research, they encounter the risk of mistakenly interpreting foreign law as being very similar to domestic law, and thereby give meanings to foreign provisions that may not exist.  In essence, a judge could easily interpret a foreign statute by giving “plain meaning” to a statutory provision and then equating the statutory provision with certain domestic terms and concepts.[166]  Although this uncomplicated path may be accurate, particularly if the foreign law is modeled after U.S. law,[167] it may not be correct in many instances.

U.S. judges are best served by considering all available resources, including expert testimony, as foreign law can often carry special nuisances, meanings, and interpretations.  For example, if a U.S. court were faced with interpreting Japanese law based on a wrongful termination claim brought by an American employee of a global Japanese company, the court would focus its inquiry on the relevant Japanese statutory law and employment contract, if any.  The Civil Code of Japan specifies that when the employment term has not been specified, either party may terminate the relationship at any time and the employment relationship will expire two weeks from the notice.[168]  Quite similar to U.S. law, there is no express limitation on an employer’s ability to terminate an employee absent an agreement otherwise.[169]  Conversely, Japan’s Labor Standards Law stipulates that an employer may terminate an employee but only upon thirty-days advance notice or thirty-days worth of wages in lieu of such notice.[170]  If a U.S. judge were faced with these two statutory provisions, some minor confusion may arise regarding the employment termination date due to the apparent statutory conflict described above.  However, there would be little doubt about an employer’s ability to terminate the employee absent an agreement to the contrary.  In reality, though, these statutory provisions only provide half of the story.  In fact, despite Japan’s civil law tradition,[171] its courts have severely curtailed the right of employers to terminate employees at will through the judicial doctrine of abusive dismissal.[172]  Pursuant to Japanese case law, an employer may not discharge a single employee or even multiple employees in the context of economic necessity without reasonable cause.[173]  In essence, before an employer can terminate the employment of one or more employees in accordance with the relevant statutory provisions, the courts have mandated certain steps that, if not taken, will constitute an actionable abuse of right.[174]

U.S. courts can also encounter difficulties when attempting to conduct independent legal research in some lesser-developed countries.  Often times, the relevant law may be difficult to readily ascertain from statutes, judicial decisions, or other objectively verifiable documents.[175]  The foreign legal systems of commercially advanced countries such as England or Japan are easier to independently research, particularly in comparison with the legal systems in more obscure countries around the globe.[176]  Also, due to inadequate resources or scarcity of commercial dealings, the laws of many lesser-developed nations may not be available in English and would require substantial translation.

VIII.  Now is the Time to Seek Out and Implement More Effective Techniques and Tools to Determine Foreign Law

U.S. courts need to embrace the application of foreign law when appropriate.  As issues involving foreign law continue to proliferate, courts should not have a “duck and run” attitude.  They have an obligation to apply the appropriate law correctly regardless of whether it is domestic or foreign, and the U.S. judicial system must be sensitive to an intertwined world with varying legal systems and cultures.[177]  In principle, the tools and procedural mechanisms are already in place for courts to accurately apply foreign law despite the shortcomings described above.  In addition to the techniques and methods currently utilized by American courts, the federal and state judiciaries should seriously consider expanding the tools available to judges.  When applying foreign law, courts require assurance that they have reliable sources of competent expertise.  Additional strides can be made in this area, not only so that courts are more comfortable in ascertaining and applying foreign law, but also such that they more willingly embrace the task at hand.

IX.  Assistance from the Courts of Other Countries

Instead of questioning expert testimony or leaving confusing questions of foreign law to independent legal research, U.S. courts should seriously consider ways of approaching foreign courts or governments for guidance on complex or ambiguous matters of foreign law.  Naturally, a sovereign entity’s interpretation of its own law is extremely persuasive.  A foreign court’s understanding of its own country’s law is “more likely to be accurate than are the warring declarations of paid experts.”[178]  To increase the accuracy of foreign law determinations and further reduce the possibility of biased expert testimony, the federal and state judiciaries should explore exchanges with foreign courts, possibly along the lines of the “certification” system used by the federal courts with respect to state law issues.  In essence, if a U.S. court encounters a difficult or novel question of foreign law or an ambiguous statutory provision subject to substantial dispute among the litigants, then such court could obtain clarification by petitioning the top court of the respective country for an answer.

On a conceptual level, the idea of seeking guidance from the top courts of other nations is both prudent and judicious.[179]  Although relatively foreign to the United States, the idea of creating a formal system of international mutual assistance to facilitate legal guidance through multilateral treaties[180] or bilateral agreements is not completely new, at least not in Europe.[181]  In principle, a “certification-like” procedure could eliminate uncertainty for a judge and save litigants substantial resources that would otherwise be exhausted in arguing about specific points of foreign law.  It could also serve as a deterrent for parties seeking to confuse the court or provide overly subjective expert testimony and materials.

On a practical level though, many logistical issues would need to be resolved before foreign law questions could be “certified” to a foreign court.  Among other things, countries willing to participate in a bilateral or multilateral exchange of legal information would need to determine exactly when questions of foreign law could be certified, who would respond to such questions, the appropriate form of response, the time frame for response, and various other logistical issues.  For such a system to succeed, judicial economy, speed, and ease of use would be key.  Excessive formalities could undermine the system and unnecessarily dissuade use of the certification mechanism.  In addition, given the time and resources necessary to respond to legal questions, it would be undesirable to “certify” all questions of foreign law to a foreign court.  Instead, some limitations would likely have to be placed on the scope of acceptable questions.

In assessing the effect that such an international certification system would have on the present arsenal of tools available to U.S. judges to ascertain and apply foreign law, it is clear that these should remain fully intact and taken advantage of whenever possible.  Litigants should still have the opportunity to present expert testimony to the court, and the court should have the option to consider any other resources or materials including statutes, case reporters, scholarly commentary, textbooks, articles, online materials, interviews, or other informally obtained materials.  Also, it would be important that the opinions rendered by the foreign court not constitute binding precedent for future matters handled by that court or judicial system.

Fundamentally, a foreign court’s guidance could enhance objectivity, fairness, and legal certainty in U.S. legal proceedings when the content of foreign law is unclear.  It could also help improve the efficiency of applying foreign law for both the parties and courts.  An additional benefit of seeking guidance from foreign courts is that an underlying bilateral or multilateral agreement would likely be necessary to facilitate judicial exchange.  Pursuant to such agreements, foreign courts could also benefit from receiving guidance on relevant U.S. law.  This would serve the interests of U.S. jurisdictions in having their law accurately applied in courts overseas.  It would also help ensure the certainty and predictability needed for global commerce and cross-border interaction.

X.  Certification System as a Model for Cases Applying Foreign Law

The concepts and principles underlying the certification model used by U.S. federal and state courts could help enhance certainty, deter potential concerns about biased expert testimony, and alleviate fears regarding the application of foreign law if applied to the process of determining foreign law in U.S. courts.  Federal courts must often interpret state law based on choice of law rules or claims that state law violates federal law.[182]  Uncertainties regarding the applicable state law may arise in such cases.  After the U.S. Supreme Court decided Erie Railroad Co. v. Tompkins,[183] federal courts did their best to “predict” how the respective state courts would decide a novel or unclear question of state law.[184]  However, predictions carry the inherent risk that the court will incorrectly resolve an important matter of law.[185]  In fact, federal courts may occasionally reach mistaken conclusions despite the fact that the state and federal courts share a common legal culture.  Judges and attorneys functioning in both systems have a common point of reference with fundamental principles of law learned at common law schools from standard textbooks, hornbooks, treatises, and other materials.  Legal practitioners are also trained to research with common resources including reporters, digests, and electronic legal databases.  Accordingly, federal judges possess the requisite legal skills to confidently research and determine the law in any American jurisdiction.  In reality, however, federal judges may still reach incorrect conclusions regarding the applicable state law.

To reduce uncertainty, federal courts adjudicating questions of state law may seek guidance and direction from the state judiciary by “certifying” a question of undecided or uncertain state law to the highest state court for an authoritative ruling.[186]  In the 1970s, state certification laws started spreading across the United States.[187]  At present, nearly every state affords discretion to its highest court to assist federal courts that face undecided questions of state law by accepting certified questions.[188]  Certification procedures vary depending on the jurisdiction.[189]  In general, however, certification is typically reserved for novel or unsettled questions of law.  It does not involve findings of fact but rather applies only to questions of law.[190]  A federal court may decide sua sponte to seek certification from a state court, or the parties may request that the federal court invoke certification.[191]

Assuming that the state legal system permits certification, the typical certification statute allows the state’s highest court to return answers to the federal court if such answers will be issue determinative and no controlling appellate decision, constitutional provision, or statute exists.[192]  Procedurally, state courts generally require the certifying court to provide a statement of facts relevant to the certified questions and describe the nature of the controversy in which the questions arose.[193]  Once the state’s highest court provides guidance, the federal court is bound to follow such guidance.[194]  In essence, this technique is employed to reduce the uncertainty and assist in the application of law that is somewhat “foreign” to the federal court.

The certification procedure facilitates judicial cooperation and obviates the danger that a federal court will reach an incorrect result or rely on an assumption contrary to how a state’s highest court would determine the matter in question.[195]  Additionally, as explained by the U.S. Supreme Court, the certification procedure “allows a federal court faced with a novel state-law question to put the question directly to the State’s highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response.”[196]  A federal court judge can rely on her own knowledge and experience ascertaining, determining, and interpreting most state law questions.  To help interpret the law, she can also draw upon the adversary process, as the lawyers for each party will perform the necessary research and present materials about the applicable law.  Notwithstanding, there are times when a federal court judge needs to acquire clarification on unsettled or important matters of law and has the tools available to do so through the certification procedure.

XI.  The Timing is Right to Expand Certification to Foreign Law Issues Facing U.S. Courts

Recent cross-border interaction among judiciaries together with the continued integration of economies across the globe presents a golden opportunity for nations to enter into serious discussions regarding judicial cooperation.  At present, there is no formal procedure by which federal courts can certify a difficult question on foreign law to the courts of another nation.[197]  However, petitioning a foreign court either formally or informally for assistance on a particularly difficult or ambiguous question of foreign law fundamentally makes sense.  Instead of predicting how a foreign court might define or apply the laws of its country, it would be more accurate to ask the foreign court directly.[198]  Recently, there has been movement toward formalizing exchange relationships between certain courts.  Additionally, U.S. courts have engaged in various international outreach activities that have effectively laid a foundation for more integrated operations, including some type of cross-border certification system.

A.            New York-South Wales Memorandum of Understanding Indicates Potential for Other Agreements

In an era when collegiality has developed among judges and judicial systems on an international level, mutual cooperation is possible to a degree that was previously unthinkable.[199]  Based on improved collegiality together with a desire to increase adjudicative certainty and reduce disputes when difficult questions of foreign law arise, the New York state judiciary has taken the first step among U.S. jurisdictions toward greater cross-border cooperation in the form of a procedure similar to certification.[200]  Not only should the New York state judiciary continue along its current path toward greater international cooperation, but other U.S. court systems should seriously examine following its lead.

On October 28, 2010, the Chief Judge Jonathan Lippman of the New York State Court of Appeals, and then-Chief Justice James Spigelman of the Supreme Court of New South Wales (“NSW”), signed a bilateral Memorandum of Understanding (“MOU”) establishing a system for reciprocal cooperation and consultation between their respective judicial systems.[201]  Citing the need and value of “trading” judicial expertise to advance the administration of justice internationally and further facilitate cross-border commerce involving New York and Sydney, the court systems executed the first agreement of its kind between a U.S. court and foreign court.[202]  In principle, the MOU enables judges in both jurisdictions to exchange legal analysis about a substantial legal issue when one court needs to apply the law of the other and the litigants consent to such an exchange.[203]

Two of the primary reasons cited for the MOU were the high cost of legal experts and confusion caused by conflicting accounts of foreign law.[204]  Chief Justice Spigelman mentioned that having each party fly legal experts to Australia to provide dueling versions of New York law simply frustrated the judicial process, as the Australian courts ended up treating matters of law essentially as matters of fact due to the conflicting views presented by the parties.[205]  Using the new system, Australia could receive an entirely neutral analysis of New York law “rendered by judges who will not have a ‘horse in the race’ of the Australian litigation in question.”[206]  In effect, this cooperative arrangement gives the New York Court of Appeals greater insight into the meaning and typical application of law in New South Wales.[207]  Even more significantly, the NSW Supreme Court will have access to more precise guidance about New York law that is frequently called into question, particularly in contract actions.[208]

Parties to legal proceedings involving foreign law are entitled to correct and authoritative applications of law.  According to the New York and NSW court systems, the new procedures established based on their MOU will enable that objective to be attained.[209]  Moreover, Chief Judge Lippman expressed his hope that this cooperative judicial arrangement is merely the first step in greater collaboration among New York courts and top courts in other foreign countries and will serve as a template for more judicial collaboration on a global basis.[210]

B.            International Outreach Activities

In addition to the certification-like procedure involving New York and Australia, other U.S. courts have drawn closer to foreign judiciaries over the years by engaging them in a variety of outreach activities.[211]  These activities have laid a strong foundation for discussions between additional court systems regarding judicial exchanges or certification-like arrangements.

In 1993, the U.S. federal judiciary created the Committee on International Judicial Relations (“CIJR”).[212]  At the time, contacts between U.S. and foreign judiciaries were starting to increase on an ad hoc basis and the U.S. federal courts wanted to devise a uniform system to facilitate judicial assistance and exchange among courts in a more orderly fashion.[213]  In addition to “rule of law” outreach activities, the CIJR has sought to “coordinate the federal judiciary’s relationship with foreign courts and judges, and with governmental and nongovernmental organizations which work in the legal reform area” over the past two decades.[214]

Many other sources of U.S.-based foundation grants and government funding aimed at “rule of law” programs have also provided opportunities for judicial cooperation and face-to-face interaction among judges.[215]  Foreign judges have similarly recognized the merit of judicial interaction and exchange.  For example, judges from European constitutional courts have met every three years since the 1980s, Worldwide Common Law Judiciary Conferences have been held yearly since 1995, and formal transnational organizations of judges have been established in various parts of the world.[216]

More recently, several U.S. federal courts have sought to forge relationships and exchanges with foreign courts.  By way of illustration, several U.S. federal courts have developed “sister-court” relationships to foster exchange.  In 2010, the U.S. District Court for the Middle District of Florida signed an agreement with the Ljubljana District Court in Slovenia with the intent of exchanging ideas and sharing innovations.[217]  In addition, U.S. judges have met with international counterparts either in the United States or overseas on numerous occasions.  For example, I personally helped  host part of U.S. Supreme Court Justice Stephen Breyer’s visit to Japan in connection with a delegation sent to Tokyo by the American Bar Association’s International Division.  The goal of Justice Breyer’s trip was to promote the “exchange of ideas on the practice of law and on cross-border legal issues and to establish relationships with a view toward cooperation.”[218]  This is simply one of many examples, as other U.S. judges have been constantly reaching out to judicial counterparts across the world.[219]  Additionally, various aid agencies, NGOs, and U.S. law schools have convened informal meetings, seminars, and conferences in the United States involving foreign judges.[220]

These outreach activities and interaction opportunities mean that the relationships among courts have become more cordial and cooperative.  Such efforts help judges understand that they function as part of a common transnational enterprise.  Also, a good number of members of foreign judiciaries and legal communities have been exposed to the U.S. legal system through a growing number of LL.M. programs, visiting scholar opportunities, and other exchanges at U.S. law schools.

On a global scale, members of the judiciary around the world have already started sharing information and exchanging ideas on many levels.  One prime example is regular judicial conferences.  In Asia, chief justices in the region regularly gather at the Conference of Chief Justices of Asia and the Pacific.[221]  At this conference, esteemed members of the judiciary present discussion papers on topics of interest such as legal reform, judicial education, court management, the relationship between courts and the public, judicial ethics, publication of judicial decisions, court practices, and court security.[222]  Ideas for more significant interaction among courts often grow out of conferences and meetings.  For example, at a recent conference, the South Korean delegate suggested that the group help foster consideration of agreements related to the recognition of judgments among countries.[223]  Despite the diversity of culture, religion, and law, members of the global judiciary tend to share a common interest in the correct application of law.[224]  There are many other similar programs that are geared toward judicial interaction and exchange.[225]

Accordingly, the hostilities and distrust that may have once existed between judiciaries has largely subsided.  The international judicial community is ready for greater cooperation in handling disputes that arise in the context of transnational litigation.  As such, not only is a certification system involving the courts of various nations not out of the question, such a system can become a viable reality assuming the proper procedural steps are taken.

XII.  Judicial Exchanges are Procedurally Possible

U.S. courts and litigants involved in disputes involving foreign law stand to benefit from the objectivity, certainty, and accuracy potentially engendered from either a formalized certification system loosely modeled after the relationship between U.S. federal and state courts or a less formal system by which foreign judiciaries exchange information.  Court systems could base a more formalized system on bilateral agreements or treaties between sovereigns.  Even if such a formalized relationship was not possible, however, an unofficial exchange of ideas could provide a court with an objective and credible source of persuasive authority.  Either system would be consistent with current federal procedural rules.  Rule 44.1 permits federal court judges to “consider any relevant material,”[226] so even an informal conversation or consultation with a foreign judge would be permissible and potentially helpful.  In any event, it could be very helpful to a domestic U.S. court applying foreign law if, upon request or certification, the highest court with conclusive authority in a foreign country could provide clarification and direction about novel, unsettled, or particularly complex legal questions.

A.            Formalized System Would Provide Reliable and Stable Sources of Credible Information

One can envision various formal models that would enable certification procedures or exchanges among courts on unsettled, novel, or particularly complex issues of foreign law.  Optimally, courts adopt formal judicial exchanges that best suit their respective needs based on principles of comity.  At minimum, however, a formal judicial exchange agreement should seek to establish a system that avoids excessive “red tape” or administrative burden, facilitates speedy exchange of information, and encourages quality responses.  The exchange agreement should provide for the exchange of legal guidance at no charge to the requesting country.  The system should also have a designated contact in the form of a specific court or governmental agency.  Designating a local embassy or consulate may be convenient for the certifying country, but it might needlessly create an extra step in the process if intermediaries can be bypassed and requests can be made directly to the responsible court or agency.

In requesting information from a foreign court, any certifying court should be required to provide enough information to facilitate a complete answer by the receiving court, including a description of the nature of the underlying dispute and statement of facts relevant to the questions certified.  Also, steps should be taken to ensure that certified questions are artfully presented or that courts can directly correspond to ensure that the questions are sufficiently understood and the right question is answered.  As cross-border communication can be problematic, measures should be taken to ensure for smooth transmission of ideas as well as translation of relevant materials.

In establishing an exchange or certification-like system, there are several other fundamental considerations that need to be addressed.  First, one factor requiring consideration is whether the litigants need to consent to a foreign court as a prerequisite of certification.  Based on the current federal rules, a court theoretically has the authority to consult with any resource, including foreign courts, so proceeding without the litigants’ consent would be consistent with the rules.[227]  However, if the litigants consented to the certification, it could eliminate future debate and discussion about a particular issue if a litigant did not agree with the result of the certification.

Second, another major consideration is how the certifying court would treat the response from the foreign court.  Unlike the federal-state certification system, U.S. courts would not necessarily be bound by the information received from foreign courts or responding agencies.  However, they naturally would pay considerable attention to conclusions issued by foreign governmental officials in their official capacities.[228]  “Substantial deference” would likely be the appropriate standard as domestic courts are generally not bound by the decisions of foreign courts.  Moreover, the advisory nature of an information exchange or certified question indicates that courts should not be bound, but should rather use the information provided as highly persuasive evidence.

Third, another possible concern is whether foreign courts would be deluged and thereby excessively burdened by a constant stream of requests from U.S. courts and vice versa.  This scenario is unlikely to emerge with the continued use of experts and widespread availability of materials on foreign law, so U.S. courts should be able to continue ascertaining and determining foreign law in most cases without having to reach out to foreign counterparts.  Also, such concerns can be dispelled by limiting the questions that are referable or certifiable to only novel, complex, or unresolved questions of law.

B.            Informal System Would Still Supply Objective and Credible Information

If a formalized certification procedure was not possible due to political pressures, logistical issues, or other concerns, there is still considerable merit in exploring and adopting an informal system for the exchange of guidance on foreign law.  The New York-NSW MOU is illustrative of the benefits of informal agreements.

At this stage, the relationship between New York and NSW is informal in nature because the New York Constitution permits the state high court to accept certified questions only from the U.S. Circuit Court of Appeals for the Second Circuit and the highest courts of other American states.[229]  Chief Judge Lippman plans on pursuing a constitutional amendment to officially formalize the reciprocal exchange arrangement and enable New York judges to officially accept certified questions from NSW courts and those of other nations.[230]  In the meantime, the New York Court of Appeals will operate on an “informal” basis that is similar to decisions rendered by referees.[231]  On the New York side of this arrangement, one volunteer judge from the New York Court of Appeals and one volunteer judge from each appellate division in the New York state courts will accept and consider any questions from NSW courts regarding New York law.[232]  These judges will volunteer their time and not receive monetary compensation for their efforts.[233]  Instead, the panel of judges will prepare a report on New York law on personal time in an effort to promote comity and cooperation between the two nations.[234]  Acting as “referees,” the volunteer judges will separate into panels of three judges, consider the question of New York law posed by the Australian court, and then provide the requesting foreign court with unofficial, nonbinding pronouncements on New York law.[235]  Because the volunteer judges will be acting outside of the scope of their official duties, their unofficial interpretations will not have any precedential authority in New York, and will not be considered official declarations of New York law.[236]  Also, the NSW Supreme Court will have the discretion to adopt, modify, or reject the report in whole or in part.[237]  With respect to questions of Australian law that arise in New York courts, the NSW Supreme Court intends to provide similar assistance on a reciprocal basis.[238]

XIII.  International Certification or Exchange System Has Additional Benefits

In addition to the benefits to judges and litigants described above, a foreign law certification mechanism will advance the interests of international comity and participating nations in the context of transnational litigation.  A court handling a foreign law issue can confidently and accurately apply such law.  Foreign nations can take comfort in their own law being applied accurately and uniformly in an overseas setting.  Also, the courts and litigants may actually conserve precious time and resources by turning to foreign courts for information on their respective laws.

A certification-like procedure geared toward national courts could also be configured to extend to international commercial arbitration proceedings.  For example, the European Convention on Information on Foreign Law (“London Convention”) has enabled the judiciaries of member states to send requests for information on foreign law in civil and commercial fields via a receiving agency specifically designated to receive reply to such requests.[239]  Through the Netherlands Arbitration Act of 1986, an arbitral panel may latch onto the London Convention by requesting that a Dutch court intervene in the proceedings and request information on foreign law from a member foreign court.[240]  Along these lines and in the interests of facilitating global trade and commerce, the United States and other states could carve out room in bilateral judicial agreements to include international commercial arbitration disputes as well.

XIV.  Increased Court Appointment of Foreign-Law Experts or Greater Use of Special Masters Would Be Beneficial

Another promising tactic that could improve current U.S. court practice in determining foreign law would be to increase the use of court-appointed experts.  Once a court has reached a point of confusion, the court should give greater consideration to appointing its own foreign law expert.  Although U.S. judges currently may appoint experts on foreign law, this tool is rarely used.[241]  Current practice notwithstanding, a knowledgeable and impartial “interpreter” of foreign law who is appointed by the courts, as opposed to experts hired by the litigants, could provide supplemental assistance to a court when close questions of foreign law exist or when the parties seriously disagree about the applicable law.  Court-appointed expert testimony would also be worthwhile when party-expert testimony appears tenuous.  Particularly in instances of doubt and confusion, the use of a court-appointed expert can help to enhance certainty, promote objectivity, and enable a court to close any gap with respect to the correctness of law.[242]

A.            Increased Use of Court-Appointed Experts on Foreign Law

Although the idea of a court-appointed expert is not novel, this tool has traditionally been underutilized by the courts.  Courts began appointing experts in the eighteenth century in response to concerns about party-hired expert witnesses.[243]  Over the years, many commentators have called for courts to appoint more expert witnesses.[244]  At the same time, attorneys have opposed the broad use of court-appointed experts based on the concern that a judge will naturally defer to its own expert on key issues in dispute, thereby depriving them of an opportunity to fully advocate their client’s position.[245]

As procedural rules have evolved, a judge’s inherent power to appoint an expert is “virtually unquestioned.”[246]  Rule 706 of the Federal Rules of Evidence (“Rule 706”) governs the appointment of experts in federal court.  Most U.S. states have similar provisions.[247]  Rule 706 provides that:

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection.[248]

Accordingly, the court may independently appoint experts to opine on foreign law.[249]  Additionally, the litigants may petition the court to appoint an expert, but they typically refrain from doing so due to the uncertainties involved.[250]

Despite a court’s ability to appoint foreign-law experts, most courts tend to be reluctant to do so.[251]  There are a variety of reasons why courts do not appoint experts more often.  Well-qualified foreign-law experts can be difficult to find.  In fact, the identification and evaluation of potential experts can entail considerable judicial effort.[252]  The potentially significant costs associated with court-appointed experts might also be problematic.  If a court appoints an expert on foreign law, the losing party will not only have to pay its own foreign-law experts, but also faces the specter of paying the fees of the court-appointed expert as well.  Pursuant to Rule 706 and similar state law rules, the litigants must pay any court-appointed expert “in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.”[253]  If a litigant does not have substantial resources, this could chill justifiable lawsuits.  Additionally, there are legitimate concerns that the adversarial system could be undermined by judges paying undue deference to their appointments.  A court-appointed expert “can undercut the adversary system, since judges may be unduly influenced by the person they appoint.”[254]  Even if the litigants’ experts have superior qualifications, a court might be susceptible to favoring its own expert’s opinion.[255]  Moreover, when a litigant disagrees with the foreign law interpretation offered by a court-appointed expert, it must carefully consider how best to refute the expert without alienating the judge, who might feel a degree of loyalty toward the appointed expert or believe that the appointed expert is neutral and therefore automatically correct.[256]

Conversely, there are many benefits to increasing the use of court-appointed expert witnesses.  First and foremost, court-appointed experts potentially provide the benefits incumbent with privately hired experts, but without the accompanying concern that the expert is a “hired gun” with her primary loyalty turned toward her client instead of the court.  With a court-appointed expert, there is little or no question about bias or lack of objectivity.[257]  Said expert can also assist the court when the parties’ submissions are unclear, inconclusive, or conflicting.[258]

Another potential benefit relates to stipulations and quick settlements.  Persuasive advice submitted by a court-appointed expert may actually prompt the litigants to stipulate to certain matters or quickly settle any foreign law issue.[259]  Moreover, if a court asks its expert to prepare a report on the relevant foreign law at the initial stages of the litigation and then allows the parties to respond, the parties could then stipulate to those aspects of the law that are not in dispute and subsequently prepare responses to interpretations on which they disagree.  The district court in Servo Kinetics, Inc. v. Tokyo Precision Instruments Co.[260] utilized this approach when it appointed a U.S. law professor specializing in comparative and Japanese law to prepare an expert report on the relevant Japanese law.  Based on the professor’s report, the parties then filed supplemental papers.[261]  This process could narrow the matters in dispute considerably.  Not only would this save the court substantial time and effort, but it could also save resources for the parties.

Alternatively, the court could reverse the process by allowing the parties to initially present their submissions on the relevant foreign law provisions.  If the submissions are conflicting or confusing interpretations of the foreign law, the court could then summon a qualified expert for another opinion from an objective viewpoint.

In theory, these benefits sound appealing.  In reality, these benefits can be obtained and may save time and resources for the court and parties alike.  If used correctly, court-appointed experts can objectively assist judges in ascertaining and applying foreign law.  However, the noted concerns give pause to court appointment of foreign-law experts.  Regardless, several improvements could be made to the use of court-appointed experts to alleviate these concerns.  Such improvements could make the use of court-appointed experts more acceptable and frequent.

B.            Making It Easier to Find Court-Appointed Experts

Making it easier to locate qualified individuals to opine on foreign law would foster the increased use of court-appointed experts.  With a concerted effort, U.S. courts could compile a database of foreign-law experts.  This database could be developed through direct applications from foreign-law experts interested in assisting, including legal practitioners, law professors, and others.  To expand the expert pool, invitations to participate could also be extended through international and foreign law organizations, comparative law institutes, and law schools.  In fact, courts might tap into the membership of the American Society of Comparative Law, the American Foreign Law Association, and others.[262]

When considering appointments, individual judges could quickly refer to the database for potential experts.  The database could contain full curricula vitae as well as brief summaries of educational background, professional experience, affiliations, and even prior experience serving as a foreign-law expert witness in international litigation or arbitration.[263]  This foreign-law expert database could also include brief evaluations of those who have served as expert witnesses in past cases.  The expert pool could be similar in structure or character to the pools of qualified mediators or arbitrators maintained by alternative dispute resolution organizations.  By providing easier access to foreign-law expert witnesses, courts should be more receptive to the idea of appointing foreign-law experts.

U.S. court systems could also seek to tap into well-established comparative law centers overseas for objective guidance.  Relationships could be established through formal agreements or informal invitations to provide information in lawsuits involving foreign law.  Although judges would need to assess the credibility and thoroughness of the information received, comparative law centers could be a solid source of information.  For example, European courts often turn to comparative law centers for guidance on foreign legal issues.  French courts have traditionally utilized the French Center of Comparative Law, and German courts have used the Max Planck Institute for Foreign and International Private Law to gather information on unfamiliar foreign laws.[264]  Although U.S. courts generally do not have a tradition or procedure to consult with private comparative law centers regarding foreign law matters,[265] such centers may openly welcome the opportunity to take an active role in transnational disputes litigated in U.S. courts.  This may encourage the development of comparative law centers in the United States as well.

C.            Compensation of Court-Appointed Experts Should Not Be a Major Obstacle

Although the costs involved with the court appointing an expert may seem significant and duplicative, the costs may be overblown.  Pursuant to Rule 706, the court “may appoint expert witnesses of its own selection” and such experts are “entitled to reasonable compensation in whatever sum the court may allow.”[266]  A court also has significant flexibility as to the payment schedule.[267]  By involving court-appointed foreign-law experts at an early stage of the litigation, it should be possible for the court to quickly obtain stipulations from the parties regarding certain aspects of the law.  This early involvement could help eliminate disputes and economize expended resources.  The issues in dispute should be pared down considerably, allowing the parties to focus their efforts and correspondingly reduce the amount of time and money spent on their own private foreign-law experts.  It could also help level the playing field if one party lacks sufficient funds for a foreign-law expert.[268]  Even if the use of court-appointed experts is reserved for later in the process and employed only when a close question of law arises, the involvement and related costs associated with said expert could be limited accordingly.

Technology has alleviated some of the fears associated with the cost of hiring foreign-law experts.  In many cases, foreign-law experts will reside in distant areas or foreign countries.  In the Internet age, the availability of inexpensive and reliable technology facilitates easy and inexpensive communication with the appointed expert.  Instead of expensive travel, an expert might appear before the courts and parties using videoconferencing or other no-cost or low-cost Internet technologies to provide for the opportunity to be questioned.

D.            Maintaining the Adversarial System Through Innovative Techniques or Increased Use of Special Masters

Determining foreign law should entail an objective and fair process in which the parties can submit any relevant materials to the court.  If concerns exist about undermining the adversarial system, a court could alleviate such concerns by allowing the litigants to vigorously cross-examine the court-appointed expert.[269]  This will enable the litigants to explore all relevant issues and fully present their positions and interpretations for consideration.  Another possible method for alleviating concerns is for the court to avoid ex parte discussions with any appointed expert.[270]  Although ex parte discussions are not prohibited by Rule 44.1 and, in fact, are consistent with a court’s ability to consider any relevant materials on foreign law,[271] a court could promote an even greater atmosphere of objectivity and fairness by engaging any expert in an open and transparent manner.

The use of a special master versed in the foreign law at issue could also temper concerns that court-appointed experts undermine the adversarial process.  Special masters can provide many of the same benefits offered by court-appointed experts.[272]  Rule 53 of the Federal Rules of Civil Procedure permits a court to refer an issue to a specially appointed master in special circumstances.  While the danger exists that a judge may unduly defer to a special master’s interpretations and findings even if the experts hired by the litigants are more knowledgeable or better qualified,[273] the litigants may have more leeway to persuade the master at a hearing based on her quasi-judicial role and ability to discuss issues with the litigants.[274]  In contrast, a court-appointed expert typically reaches conclusions independently and can only be challenged by cross-examination.[275]

Another benefit associated with appointing a special master is specialization.[276]  In many instances, a special master can bring specialized knowledge to the process and help compensate for a judge inexperienced with foreign law.[277]  If the special master has integral knowledge of the foreign law at issue, she can efficiently conduct targeted discussions with the parties and their experts.  Matters of law can be fleshed out and defined more accurately, thereby allowing any disputes between the parties to be pared down considerably and presented to the court in the form of a special master’s report for final determination.  In cases of significant dispute between the parties, the master’s report could be the best thing available under the circumstances.[278]

XV.  Different Approaches Could Lead to Additional Improvements

In addition to creating certification relationships with foreign courts and increasing the use of court-appointed experts or special masters to resolve unclear or highly contentious interpretations of foreign law, there are several other approaches that courts have tested on an ad hoc basis that might help other U.S. courts accurately and expeditiously ascertain and apply foreign law.

A.            Streamlined Battle of the Experts

In light of objectivity concerns and confusion caused by conflicting expert opinions, U.S. courts might explore methods of streamlining the “battle of the experts” through an in-court hearing.  If conflicting experts appear before a court and each expert is required to succinctly respond to the other expert’s points and interpretations, a court can potentially gain a greater understanding of the foreign law and avoid the confusion engendered by affidavits, written declarations, or scripted examinations.[279]  The process would likely not be time consuming and would enable the court and attorneys to ask follow up questions.  Points of dispute could likely be narrowed down as well.  As such, a court can obtain a better grasp not only of the substance of the foreign law but also of its intellectual underpinnings and interstices.[280]  Such an approach would also be consistent with the broad purpose and text of Rule 44.1 and analogous state rules.[281]

When this approach has actually been utilized in litigation and international arbitrations, the adjudicator has found a “jot-for-jot give and take” between the experts to be helpful.[282]  By way of illustration, in Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co.,[283] the court appointed its own foreign law expert only after the parties offered irreconcilable opinions on Saudi law.  After reviewing all expert reports, the court held an all-day hearing at which the court-appointed and party-hired experts testified and were subject to cross examination.[284]  Although, in the end, additional costs were incurred, the court hired the expert only after other options had been exhausted.[285]  Most significantly, the court was able to confidently determine the law correctly and only the losing party bore the cost of the additional expert.[286]

B.            Invitations to Submit Briefs Amicus Curiae

Another possible technique to eliminate confusion and ensure the accurate application of foreign law is inviting foreign governments to submit briefs amicus curiae on matters of disputed foreign law.[287]  In comparison with the cross-border certification system described above, the solicitation of briefs would be much more informal and courts could not rely upon foreign courts or governmental agencies for a response.  By analogy, U.S. courts already engage in this process on a domestic scale in certain instances.  For example, in Press v. Quick & Reilly, Inc.,[288] the U.S. Court of Appeals for the Second Circuit asked the Securities and Exchange Commission to submit an amicus curiae brief expressing the Commission’s views on the issues set forth in the parties’ briefs.[289]

Another problem with soliciting briefs amicus curiae is potential confusion regarding the actual authority of the submitting authority.  From time to time, foreign governmental agencies have submitted amicus briefs on issues pending before U.S. courts; however, it has been unclear whether an amicus represents the official governmental position.  For example, in Allendale Mutual Insurance Co. v. Bull Data Systems,[290] the court found that statements in a brief amicus made by the Commission de Controle des Assurances (France’s Insurance Commission) were insufficient because there was no proof that the Commission had authority to speak on behalf of the French state.[291]

Conclusion

As the world continues to become more globally interdependent, U.S. courts increasingly face lawsuits and issues involving foreign law.  Because the interpretation and application of law is potentially outcome-determinative in any lawsuit, it is important that U.S. courts both embrace foreign law issues and decide them accurately.  Current rules provide courts with a litany of tools to ascertain foreign law; however, there is room for many improvements ranging from international judicial cooperation to the enhanced use of court-appointed foreign-law experts.  These improvements will promote objectivity and foster the fair, efficient, and accurate application of foreign law in domestic courts.


* Professor Matthew J. Wilson is currently an Associate Professor of Law at the University of Wyoming College of Law.  He also was concurrently appointed as an international scholar at Kyung Hee University Law School in Seoul, South Korea during the 2011–12 academic year.  Financial and other support for this Article was graciously provided by Kyung Hee University Law School and the University of Wyoming College of Law.

[1]. Int’l Monetary Fund, Global Financial Stability Report: Containing Systemic Risks and Restoring Financial Soundness 1 (2008), available at http://www.imf.org/external/pubs/ft/gfsr/2008/01/pdf/text.pdf (observing that the “crisis that originated in a small segment of the U.S. mortgage market has spread to broader cross-border credit and funding markets” and put pressure on funding channels and trade linkages).

[2]. Isabel Reynolds & Hyunjoo Jin, Global Manufacturers Wrestle with Japan Supply Gaps, Reuters, Mar. 18, 2011, http://www.reuters.com/article
/2011/03/18/japan-supplychain‑idUKL3E7EI0AR20110318.

[3]. See, e.g., Tariff Act of 1930 § 527, 19 U.S.C. § 1527(a) (2006) (prohibiting the “taking, killing, possession, or exportation to the United States of any wild mammal or bird . . . in violation of the laws or regulations of such country, dependency, province, or other subdivision of government”).

[4]. See Restatement (Third) of Foreign Relations Law of the United States §§ 402, 404, 421, 423 (1987).  The Restatement (Third) of Foreign Relations lists the primary bases for prescriptive jurisdiction including: (i) territoriality (conduct that takes place within a state’s territory, either wholly or in substantial part, as well as the status of persons or interest of things within its territory); (ii) effects (jurisdiction with respect to activity outside the state but having or intended to have substantial effect within the state’s territory); (iii) nationality, domicile, or residence (jurisdiction over the activities, interests, status, or relations of its nationals outside its territory or those present within the territory); (iv) protection (jurisdiction over certain conduct outside its territory by non-nationals that is directed against the security of the state); and (v) universal crimes (jurisdiction over a limited class of other state interests such as those of universal concern such as piracy, slave trade, and genocide).  Id. §§ 401–04, 421–23; see also Hannah L. Buxbaum, Territory, Territoriality, and the Resolution of Judicial Conflict, 57 Am. J. Comp. L. 631 (2009).

[5]. See Carolyn B. Lamm & K. Elizabeth Tang, Rule 44.1 and Proof of Foreign Law in Federal Court, Litigation, Fall 2003, at 31, 32.

[6]. Press Release, N.Y. State Unified Court Sys., First of Its Kind Memorandum of Understanding Signed Between U.S. State Court and Australian Court (Oct. 28, 2010), http://www.courts.state.ny.us/press/pr2010_14
.shtml.

[7]. See Louise Ellen Teitz, The Use of Evidence in Admiralty Proceedings, 34 J. Mar. L. & Com. 97, 100 (2003).  In some cases, the parties will select diverging governing law and jurisdiction for dispute resolution.  See, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974) (upholding an agreement containing an arbitration clause that selected Paris, France as the forum for dispute resolution and Illinois state law as governing the agreement).

[8]. See Yavuz v. 61 MM, Ltd., 465 F.3d 418, 430 (10th Cir. 2006).

[9]. See Teitz, supra note 7, at 100.

[10]. See generally John R. Brown, 44.1 Ways to Prove Foreign Law, 9 Tul. Mar. L.J. 179 (1984).

[11]. The choice-of-law tests employed in the United States for contracts, torts, and consumer transactions include the lexi loci delicti, the more significant relationship test as detailed in the Restatement (Second) of Conflicts of Law, the governmental interest test, and others.  Jacques deLisle & Elizabeth Trujillo, Private International Law: Consumer Protection in Transnational Contexts, 58 Am. J. Comp. L. 135, 144–47 (2010).

[12]. See Edward K. Cheng, Scientific Evidence as Foreign Law, 75 Brook. L. Rev. 1095, 1098 (2010).

[13]. See Walter W. Heiser, Forum Non Conveniens and Choice of Law: The Impact of Applying Foreign Law in Transnational Tort Actions, 51 Wayne L. Rev. 1161, 1163 (2005).

[14]. See, e.g., Stephen Yeazell, When and How U.S. Courts Should Cite Foreign Law, 26 Const. Comment. 59, 61–63 (2009).

[15]. See Andrew N. Adler, Translating & Interpreting Foreign Statutes, 19 Mich. J. Int’l L. 37, 38 (1997).

[16]. See id.

[17]. Press Release, N.Y. State Unified Court Sys., supra note 6.

[18]. See Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 629 (7th Cir. 2010) (“Trying to establish foreign law through experts’ declarations . . . adds an adversary’s spin, which the court then must discount.”).

[19]. Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487, 495–96 (7th Cir. 2009) (“But the lawyers who testify to the meaning of foreign law, whether they are practitioners or professors, are paid for their testimony and selected on the basis of the convergence of their views with the litigating position of the client or their willingness to fall in with the views urged upon them by the client.”).

[20]. See generally Andrew W. Davis, Federalizing Foreign Relations: The Case for Expansive Federal Jurisdiction in Private International Litigation, 89 Minn. L. Rev. 1464 (2005).

[21]. 28 U.S.C. § 1367 (2006).  A court can properly exercise supplemental jurisdiction over foreign law claims so long as said claims derive from a “common nucleus of operative fact” with a claim over which the federal court has original jurisdiction so that said claims form part of the same case or controversy. § 1367(a); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966).

[22]. See Victor E. Flango, Litigant Choice Between State and Federal Courts, 46 S.C. L. Rev. 961, 966 (1995); see also Kimberly A. Moore, Xenophobia in American Courts, 97 Nw. U. L. Rev. 1497, 1503 (2003).

[23]. See Jeffrey M. Jensen, Development in the Law: Transnational Litigation: VI. Personal Jurisdiction in Federal Courts Over International E-Commerce Cases, 40 Loy. L.A. L. Rev. 1507, 1510 (2007).

[24]. See Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4–5 (1975) (looking to Texas choice-of-law rules to determine whether Cambodian law formed the basis of a substantive wrongful death claim).

[25]. See Applied Med. Distribution Corp. v. Surgical Co. BV, 587 F.3d 909, 920 (9th Cir. 2009); Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487, 495 (7th Cir. 2009); Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 345 (8th Cir. 1983).

[26]. See generally Nashua Sav. Bank v. Anglo-Am. Land, Mortg. & Agency Co., 189 U.S. 221, 227–29 (1903) (discussing methods of proving foreign law in U.S. courts, including through experts); Ennis v. Smith, 55 U.S. 400, 426 (1852) (accepting French Civil Code into evidence); APL Co. Pte. Ltd. v. UK Aerosols Ltd., 582 F.3d 947, 957 (9th Cir. 2009) (ordering the application of Singapore law); Cambridge Literary Props., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co., 295 F.3d 59, 64 (1st Cir. 2002) (observing that U.S. district court may apply U.S copyright law, German contract law, and Austrian inheritance law in a single lawsuit to resolve all of the issues in the case); Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp., 161 F.3d 314, 319 (5th Cir. 1998) (analyzing expert testimony and conducting court’s own research to determine corporate status under Chinese law); Indasu Int’l, C.A. v. Citibank, N.A., 861 F.2d 375, 379–80 (2d Cir. 1988) (determining Ecuadorian law based on the relevant civil code and then applying the code provisions to determine duties of U.S. guarantor and Panamanian corporation); Trans Container Servs. (BASEL) A.G. v. Sec. Forwarders, Inc., 752 F.2d 483, 485–87 (9th Cir. 1985) (applying U.K. lien law); CYBERsitter, LLC v. People’s Republic of China, No. CV 10-38-JST (SHx), 2010 WL 4909958, at *8 (C.D. Cal. Nov. 18, 2010) (acknowledging ability to interpret foreign claims, including claims for copyright infringement under Japanese, Chinese, and Taiwanese law); The Atlanta, 82 F. Supp. 218, 235–37 (S.D. Ga. 1948) (applying Commercial Code of Panama).

[27]. See Hague Conference on Private Int’l Law, Feasibility Study on The Choice of Law in International Contracts 5 (2007), available at http://www.hcch.net/upload/wop/genaff_pd22a2007e.pdf; see also Yeazell, supra note 14, at 61–62.

[28]. See Yeazell, supra note 14, at 61–62.

[29]. Lesley v. Spike TV, 241 Fed. App’x. 357, 358 (9th Cir. 2007) (applying Japanese contract law); Servo Kinetics, Inc. v. Tokyo Precision Instruments Co., 475 F.3d. 783, 790–98 (6th Cir. 2007) (addressing a breach of contract claim based on Japanese law in a consolidated proceeding together with trade secret misappropriation and tortious interference with contracts based on Michigan law).

[30]. Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 1234 (3d Cir. 1995) (applying Indian tort law).

[31]. Curtis v. Harry Winston, Inc., 653 F. Supp. 1504, 1509 (S.D.N.Y. 1987) (applying claim against a U.S. company for violation of Venezuelan statutory employment law).

[32]. Trans Container Servs. (BASEL) A.G. v. Sec. Forwarders, Inc., 752 F.2d 483, 486 (9th Cir. 1985) (applying English conversion law).

[33]. Universe Sales Co. v. Silver Castle, Ltd., 182 F.3d 1036, 1038 (9th Cir. 1999) (applying Japanese trademark law).

[34]. Batchelder v. Kawamoto, 147 F.3d 915, 920–22 (9th Cir. 1998) (considering Japanese securities law in relation to American Depository Receipt holders’ rights).

[35]. Kaho v. Ilchert, 765 F.2d 877, 883 (9th Cir. 1985) (applying Tongan family law).

[36]. In re Condor Ins., Ltd., 601 F.3d 319, 328–29 (5th Cir. 2010) (applying Nevis bankruptcy law); Otte v. Tokyo Shibaura Elec. Co., No. 74 Civ. 3732 (CMM), 1977 WL 1440, at *2 (S.D.N.Y. June 22, 1977) (adjudicating several Japanese law claims in a bankruptcy proceeding).

[37]. Akazawa v. Link New Tech. Int’l, Inc., 520 F.3d 1354, 1358 (Fed. Cir. 2008) (applying Japanese intestacy law).

[38]. Toho Co. v. Priority Records, LLC, No. CV01-04744SVW(RZX), 2002 WL 33840993, at *5 (C.D. Cal. Mar. 27, 2002) (applying Japanese copyright law); Armstrong v. Virgin Records, Ltd., 91 F. Supp. 2d 628, 637 (S.D.N.Y. 2000) (applying foreign copyright law).

[39]. See generally Rationis Enters. Inc. v. Hyundai Mipo Dockyard Co., 426 F.3d 580 (2d Cir. 2005) (applying Korean law in admiralty suit).

[40]. Republic of Ecuador v. Chevrontexaco Corp., 499 F. Supp. 2d 452, 460 (S.D.N.Y. 2007); see also Annotation, Raising and Determining Issue of Foreign Law Under Rule 44.1 of Federal Rules of Civil Procedure, 62 A.L.R. Fed. 521, § 7 (1983).

[41]. Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 628 (7thCir. 2010); Molly Warner Lien, The Cooperative and Integrative Models of International Judicial Comity: Two Illustrations Using Transnational Discovery and Breard Scenarios, 50 Cath. U. L. Rev. 591, 628 (2001); see also Gross v. British Broad. Corp., 386 F.3d 224, 234 (2d Cir. 2004) (asserting that the law of the United Kingdom is amenable to application in the United States).

[42]. Bodum USA, Inc., 621 F.3d at 628.

[43]. See generally Hague Conference on Private Int’l Law Permanent Bureau, Accessing the Content of Foreign Law: Compilation of Responses to the Questionnaire of October 2008 for the Meeting of Experts on Global Co-operation on the Provision of Online Legal Information on National Laws (2009), available at http://www.hcch.net/upload/wop
/genaff2009pd11c.pdf.

[44]. Teitz, supra note 7, at 112.

[45]. Hague Conference on Private Int’l Law, Accessing the Content of Foreign Law and the Need for the Development of a Global Instrument in this Area—A Possible Way Ahead 3–8 (2009), available at http://www.hcch.net
/upload/wop/genaff_pd11a2009e.pdf.

[46]. See, e.g., Sunstar, Inc., v. Alberto-Culver Co., 586 F.3d 487, 495 (7th Cir. 2009) (seeking guidance from Japanese Trademark Law textbook authored by American law professor).

[47]. Although too long to list, several illustrative examples of English-language resources on Japanese law include the following: Doing Business in Japan (Matthew Bender rev. ed. 2011); Hiroshi Oda, Japanese Law  (Oxford University Press 2d ed. 2009); Financial Instruments and Exchange Act, Fin. Servs. Agency of Japan, http://www.fsa.go.jp/en/policy/fiel/index.html (last visited Nov. 6, 2011); Rob Britt, Japanese Legal Research at the University of Washington, Gallagher Law Libr., http://lib.law.washington.edu/eald/jlr/jres
.html (last visited Nov. 6, 2011); Foreign law: I, J, Harv. Law Sch. Libr., http://www.law.harvard.edu/library/research/guides/int_foreign/web‑resources/foreign-law_i_j.html#Japan (last visited Nov. 6, 2011) (providing hyperlinks to sources on Japanese law under the heading “Japan”); Japan, Washburn Univ. Sch. of Law, http://www.washlaw.edu/forint/asia/japan.html (last visited Nov. 6, 2011); Japanese Law Translation, Ministry of Justice of Japan, http://www.japaneselawtranslation.go.jp/ (last visited Nov. 6, 2011).

[48]. Supreme Court of Japan, http://www.courts.go.jp/english/ (last visited Nov. 6, 2011).

[49]. See, e.g., Sunstar, Inc., 586 F.3d at 498–99 (describing how parties translated the relevant portions of Japanese trademark statute as there is no official English translation of Japanese laws); see also Tchacosh Co. v. Rockwell Int’l Corp., 766 F.2d 1333, 1334 n.2 (9th Cir. 1985) (noting that the court accepted translation of Iranian Temporary Director Act provided by defendant’s expert).  By way of example, I have offered in-court testimony to the U.S. District Court for the Northern District of California in Dainippon Screen Manufacturing Co. v. CFMT, Inc., No. C96-3296, 1997 U.S. Dist. LEXIS 4363 (N.D. Cal. Feb 21, 1997), related to the meaning of certain Japanese words and phrases at the heart of a patent infringement dispute.

[50]. Roger J. Miner, The Reception of Foreign Law in the U.S. Federal Courts, 43 Am. J. Comp. L. 581, 581 (1995).

[51]. Heiser, supra note 13, at 1189–90.

[52]. See Jacob Dolinger, Application, Proof, and Interpretation of Foreign Law: A Comparative Study in Private International Law, 12 Ariz. J. Int’l & Comp. L. 225, 267–70 (1995); Miner, supra note 50, at 582–83; see also Lien Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1001 (9th Cir. 2006).

[53]. Cheng, supra note 12, at 1099.

[54]. William Ewald, The Complexity of Sources of Trans-national Law: United States Report, 58 Am. J. Comp. L. (Supplement) 59, 65 (2010).

[55]. Id.

[56]. Justice Sandra Day O’Connor has noted that U.S. lawyers and law students need to study foreign law because of its application in domestic courts and the possibility of borrowing beneficial ideas from foreign law and the enhancement of cross-border cooperation.  Sandra Day O’Connor, Broadening Our Horizons: Why American Judges and Lawyers Must Learn About Foreign Law, Int’l Jud. Observer, June 1997, at 2, 2.

[57]. Silke Sahl, Finding Books and Articles on International and Foreign Law, Columbia Univ. L. Sch., http://library.law.columbia.edu/guides/Finding
_Books_and_Articles_on_International_and_Foreign_Law (last updated Apr. 2011) (“There are many ways to find information about law review and journal articles related to foreign and international law.  Unfortunately, there is no one single, comprehensive database.”).

[58]. LexisNexis and Westlaw do maintain databases of foreign law.  However, these databases are operated in foreign languages and cannot be accessed without a separate (and often expensive) subscription.

[59]. See generally Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095 (2d Cir. 1995).

[60]. Miner, supra note 50, at 582.

[61]. See Cassandra Burke Robertson, Transnational Litigation and Institutional Choice, 51 B.C. L. Rev., 1081, 1089–92 (2010) (noting that there has recently been a 400% increase in transnational forum non conveniens challenges and that courts have dismissed approximately half of the cases in which forum non conveniens has been an issue); see also Emily J. Derr, Striking a Better Public-Private Balance in Forum Non Conveniens, 93 Cornell L. Rev. 819, 824 (2008).  When faced with a motion to dismiss for forum non conveniens, federal judges must determine that an adequate alternative forum exists in which the case could be heard, and then that private and public interest factors  favor dismissal in favor of said forum.  Id.

[62]. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 260 n.29 (1981).

[63]. See Derr, supra note 61, at 829.

[64]. See Heiser, supra note 13, at 1178.

[65]. 454 U.S. 235.

[66]. Derr, supra note 61, at 829.

[67]. Republic of Bolivia v. Philip Morris Cos., 39 F. Supp. 2d 1008, 1009 (S.D. Tex. 1999), demonstrates this aversion through humor.  Judge Kent, writing for the court, sua sponte transferred a case the government of Bolivia had originally brought in Brazoria County, Texas, to the federal district court in Washington, D.C.  Id.  Judge Kent noted that:

The Court seriously doubts whether Brazoria County has ever seen a live Bolivian . . . even on the Discovery Channel. Though only here by removal, this humble Court by the sea is certainly flattered by what must be the worldwide renown of rural Texas courts for dispensing justice with unparalleled fairness and alacrity, apparently in common discussion even on the mountain peaks of Bolivia!

Id.

[68]. See, e.g., Blueye Navigation, Inc. v. Den Norske Bank, 658 N.Y.S.2d 9, 10 (N.Y. App. Div. 1997) (holding that the action was governed by English law and should be dismissed).

[69]. See Ewald, supra note 54, at 65 (noting that the official treaties website has been under construction for fifteen years and is marked with warnings about its lack of completeness).

[70]. Id. at 66.

[71]. Id.

[72]. See Robertson, supra note 61, at 1081–85.

[73]. Giesela Rühl, Methods and Approaches in Choice of Law: An Economic Perspective, 24 Berkeley J. Int’l L. 801, 808 (2006).

[74]. Id. at 808–15.

[75]. Robertson, supra note 61, at 1127–28, 1130–31.

[76]. See, e.g., Universe Sales Co. v. Silver Castle, Ltd., 182 F.3d 1036, 1038 (9th Cir. 1999) (instructing the jury on Japanese law).

[77]. See id.

[78]. See Sofie Geeroms, Foreign Law in Civil Litigation: A Comparative and Functional Analysis 123 (Oxford University Press 2004).

[79]. See Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487, 495 (7th Cir. 2009).

[80]. 9 James Wm. Moore et al., Moore’s Federal Practice ¶ 44.1.01 (3d ed. 2010).

[81]. When neither party seeks the application of foreign law, most courts will generally apply the law of the forum based on the assumption that the parties have tacitly agreed to the application of the law of the forum.  See Symeon C. Symeonides, Choice of Law in American Courts in 2009: Twenty-Third Annual Survey, 58 Am. J. Comp. L. 227, 289 (2010).

[82]. See Moore et al., supra note 80, ¶ 44.1.02.

[83]. Geeroms, supra note 78, at 123–25 (noting that most state jurisdictions have adopted the Rule 44.1 approach, although some still use the judicial notice concept or adhere to the common law method of proving foreign law); Ewald, supra note 54, at 66–67; see also Akande v. Transamerica Airlines, Inc., No. 1039-VCP, 2007 Del. Ch. LEXIS 68, at *20–34 (Del. Ch. May 25, 2007).

[84]. See Lamm & Tang, supra note 5, at 31; Arthur Miller, Federal Rule 44.1 and the “Fact” Approach to Determining Foreign Law: Death Knell for a Die-Hard Doctrine, 65 Mich. L. Rev. 613, 617 (1967); 9A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Federal Practice and Procedure § 2441 (3d ed. 2011) [hereinafter Wright & Miller].

[85]. See Wright & Miller, supra note 84; Lamm & Tang, supra note 5, at 31; Miller, supra note 84.

[86]. See Ewald, supra note 54, at 66; see also Cheng, supra note 12, at 1100–01.

[87]. See Ewald, supra note 54, at 66; see also Cheng, supra note 12, at 1100–01.

[88]. See Ewald, supra note 54, at 66.

[89]. See Brown, supra note 10, at 181.

[90]. See Lamm & Tang, supra note 5, at 31.

[91]. Comm. on Int’l Commercial Disputes, Proof of Foreign Law After Four Decades with Rule 44.1 FRCP and CPLR 4511, 61 Record 49, 50 (2006), available at http://www2.nycbar.org/Publications/record/vol_61_no_1.pdf.

[92]. From a practical, evidentiary standpoint, a good case can be made that foreign law is often proved in federal court like a “fact.”  Teitz, supra note 7, at 99.  “For example, despite defining foreign law to be a question of law, federal courts have effectively held that a failure to provide sufficient evidence of foreign law remains a valid ground for dismissal.”  Cheng, supra note 12, at 1101.

[93]. See Cheng, supra note 12, at 1101.

[94]. See Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 275 (S.D. Tex. 1997), aff’d, 161 F.3d 314 (5th Cir. 1998).

[95]. Fed. R. Civ. P. 44.1; see also Universe Sales Co. v. Silver Castle, Ltd., 182 F.3d 1036, 1038 (9th Cir. 1999); Wright & Miller, supra note 84, § 2444; Comm. on Int’l Commercial Disputes, supra note 91, at 51.

[96]. Comm. on Int’l Commercial Disputes, supra note 91, at 50.

[97]. Id.

[98]. Institut Pasteur v. Simon, 383 F. Supp. 2d 792, 795 n.2 (E.D. Pa. 2005).

[99]. Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 628 (7th Cir. 2010).

[100]. See Pazcoguin v. Radcliffe, 292 F.3d 1209, 1216 (9th Cir. 2002); HFGL Ltd. v. Alex Lyon & Son Sales Managers & Auctioneers, Inc., 264 F.R.D. 146, 148 (D.N.J. 2009); see also Peter D. Trooboff, Proving Foreign Law, Nat’l L.J. (Sept. 18, 2006), available at http://www.cov.com/files/Publication/166005e7
‑7c83‑43b0‑97fc‑2d727f4e53cf/Presentation/PublicationAttachment/e1c9224b‑4ae7-43b7-8d19-317c1ba3beef/674.pdf.

[101]. See Miner, supra note 50, at 585.

[102]. See Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 275 (S.D. Tex. 1997), aff’d, 161 F.3d 314 (5th Cir. 1998).

[103]. Forzley v. AVCO Corp. Elec. Div., 826 F.2d 974, 979 n.7 (11th Cir. 1987).

[104]. In re Tommy Hilfiger Sec. Litig., No. 04-civ-7678, 2007 U.S. Dist. LEXIS 55088, at *15 (S.D.N.Y. July 20, 2007).  It should be noted, however, that courts are often “reluctant to rely on sources such as newspapers, websites, or even statements issued by the U.S. Department of State” regarding foreign law.  Lamm & Tang, supra note 5, at 35.

[105]. United States v. Hing Shair Chan, 680 F. Supp. 521, 524 (E.D.N.Y. 1988).

[106]. See Lamm & Tang, supra note 5, at 33 (noting that governmental translations of statutes will be the best proof).

[107]. See Wright & Miller, supra note 84, § 2444.

[108]. See id.

[109]. See id.; see also HFGL Ltd. v. Alex Lyon & Son Sales Managers & Auctioneers, Inc., 264 F.R.D. 146, 148–49 (D.N.J. 2009).

[110]. See Wright & Miller, supra note 84, § 2444.

[111]. See id.

[112]. See Teitz, supra note 7, at 107; see also Universe Sales Co. v. Silver Castle, Ltd., 182 F.3d 1036, 1037–39 (9th Cir. 1999) (relying on Japanese attorney to determine claims based on Japanese law); Batchelder v. Kawamoto, 147 F.3d 915, 921–22 (9th Cir. 1998) (utilizing expert declarations of Japanese  and U.S. attorneys and law professors to determine Japanese securities law); Curley v. AMR Corp., 153 F.3d 5, 16 (2d Cir. 1998) (relying on affidavit of attorney licensed to practice in Mexico to determine Mexican tort law claims).  Of note, an expert report submitted by litigants pursuant to Rule 44.1 to assist a court “in its determination of foreign law is entirely different from use of an expert report, pursuant to  Rule 702, Fed.R.Evid., to aid the jury in determining the facts.”  HFGL Ltd., 264 F.R.D at 149 (quoting Lithuanian Commerce Corp. v. Sara Lee Hosiery, 177 F.R.D 245, 264 (D.N.J. 1997)).

[113]. See Teitz, supra note 7, at 106.

[114]. Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 638–39 (7th Cir. 2010) (Wood, J., concurring).

[115]. Id. at 639.

[116]. Saudi Basic Indus. Corp. v. Mobil Yanbu Petrochem. Co., 866 A.2d 1, 29 (Del. 2005) (considering appeal of a jury verdict for $416.8 million based on a tort claim under Saudi law known as usurpation or “ghasb”).

[117]. Id. at 31.

[118]. See generally Universe Sales Co. v. Silver Castle, Ltd., 182 F.3d 1036, 1037–39 (9th Cir. 1999); Batchelder v. Kawamoto, 147 F.3d 915, 921–22 (9th Cir. 1998); Transportes Aeros Pegaso v. Bell Helicopter Textron Inc., 623 F. Supp. 2d 518, 534 (D. Del. 2009).

[119]. Teitz, supra note 7, at 107.

[120]. Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 639 (7thCir. 2010).

[121]. See Wright & Miller, supra note 84, § 2444.

[122]. See id.

[123]. See id.; see generally Moore, supra note 80, § 44.1.04(2)(b) (noting that there are no special qualifications for foreign-law experts, and such experts need not even be admitted to practice law in the country about whose law they testify).

[124]. Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 92 (2d Cir. 1998) (citing Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998)).

[125]. Northrop Grumman Ship Sys., Inc. v. Ministry of Def. of Republic of Venez., No. 1:02cv785WJG-JMR, 2010 WL 2682946, *2–4 (S.D. Miss. July 2, 2010) (accepting testimony of a lawyer who was licensed to practice law in Venezuela, had published numerous legal articles involving Venezuela, and had taught courses in international and comparative law); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1125, 1173 n.50 (E.D. Pa. 1980) (accepting testimony of law professor specializing in Japanese law who was fluent in Japanese and worked in Japanese law offices for several years).

[126]. C.C. Bjorklund, Law of Foreign Jurisdiction, in 21 Am. Jur. Proof of Facts 2d 1, § 13 n.25 (2010) (citing Benjamin Busch, Outline on How to Find, Plead, and Prove Foreign Law in U.S. Courts with Sources and Materials, 2 Int’l Law. 437, 439 (1968)).

[127]. See Wright & Miller, supra note 84, § 2441; see also ID Sec. Sys. Can., Inc. v. Checkpoint Sys., 198 F. Supp. 2d 598, 623 (E.D. Pa. 2002); Doug M. Keller, Interpreting Foreign Law Through an Erie Lens: A Critical Look at United States v. McNab, 40 Tex. Int’l L.J. 157, 169 (2004).

[128]. Fed. R. Civ. P. 44.1.

[129]. See Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998) (ordering supplemental briefing of Mexican law because district court erroneously applied New York law to claim).

[130]. In re Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 61, 62–65 (S.D.N.Y. 2001).

[131]. See Fed. R. Civ. P. 44.1; Universe Sales Co. v. Silver Castle Ltd., 182 F.3d 1036, 1038 (9th Cir. 1999); Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 278–84 (S.D. Tex. 1997), aff’d, 161 F.3d 314 (5th Cir. 1998) (noting that the court independently analyzed the Chinese Constitution and Codes in addition to affidavits from three experts).

[132]. See Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 628 (7th Cir. 2010); Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487, 495 (7th Cir. 2009) (looking to treatises, law review articles, and judicial opinions to interpret Japanese trademark law).

[133]. See, e.g., Sunstar, 586 F.3d at 495 (seeking guidance from a Japanese Trademark Law textbook authored by an American law professor).

[134]. See id. at 497–98 (citing both parties’ translations of the relevant portions of Japanese trademark statute as there is no official English translation of Japanese laws); Tchacosh Co. v. Rockwell Int’l Corp., 766 F.2d 1333, 1334 n.2 (9th Cir. 1985) (accepting the translation of Iranian Temporary Director Act provided by defendant’s expert).

[135]. See Edward K. Cheng, Independent Judicial Research in the Daubert Age, 56 Duke L.J. 1263, 1304 (2007) (explaining that courts “have tended . . . to find ways to avoid the foreign law issue altogether”); see also Teitz, supra note 7, at 97–98 (noting that federal courts have demonstrated a “reluctance to address the content of foreign law”).

[136]. Cheng, supra note 12, at 1101.

[137]. Cheng, supra note 135, at 1304 (noting that courts find ways to avoid foreign law altogether); see also Heiser, supra note 13, at 1176–77 (noting that courts sometimes dismiss foreign law claims on the basis of forum non conveniens).

[138]. Cheng, supra note 12, at 1101.

[139]. See Miner, supra note 50, at 581.

[140]. See id. at 586–87 (discussing various cases in which foreign law was successfully applied).

[141]. Id. at 588.

[142]. Ewald, supra note 54, at 67.

[143]. See, e.g., Servo Kinetics, Inc. v. Tokyo Precision Instruments Co., 475 F.3d 783, 790 (6th Cir. 2007); Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 88 (2d Cir. 1998); Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998).

[144]. Ewald, supra note 54, at 67; Teitz, supra note 7, at 98.  For example, in Lou v. Otis Elevator Co., 933 N.E.2d 140 (Mass. App. Ct. 2010), the state court decided to instruct the jury pursuant to Massachusetts law because it was unable to confidently determine the applicable Chinese law.  Id. at 144.

[145]. Teitz, supra note 7, at 97.

[146]. Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 629 (7thCir. 2010).

[147]. Comm. on Int’l Commercial Disputes, supra note 91, at 49.

[148]. Bodum USA, Inc., 621 F.3d at 629.

[149]. See Kinjo v. Champion Shipping AS, No. CIV. 2:09-CV-03603 FCD/DAD, 2010 U.S. Dist LEXIS 78558, at *11 (E.D. Cal. Aug. 4, 2010) (accusing expert on foreign law of being biased and having a personal interest in the proceedings).

[150]. Hein Kötz, Civil Justice Systems in Europe and the United States, 13 Duke J. Comp. & Int’l L. 61, 64 (2003).

[151]. Comm. on Int’l Commercial Disputes, supra note 91, at 52.

[152]. 586 F.3d 487 (7th Cir. 2009).

[153]. Id. at 495.

[154]. Id. at 495–96.

[155]. Id. at 496.

[156]. Id.

[157]. Miner, supra note 50, at 588 (comparing the use of foreign-law experts to judicial acceptance of experts testifying on scientific and other related matters).

[158]. Comm. on Int’l Commercial Disputes, supra note 91, at 53 (discussing statements of Judge Helen Freedman of the New York State Supreme Court).  This is consistent with my own personal experience serving as an expert witness as well.

[159]. See Fed. R. Evid. 706 advisory committee’s note (“The ever-present possibility that the judge may appoint an expert in a given case must inevitably exert a sobering effect on the expert witness of a party and upon the person utilizing his services.”).

[160]. Teitz, supra note 7, at 111.

[161]. Id.

[162]. Id.

[163]. N.Y. State Unified Court Sys., supra note 6.

[164]. Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487, 495 (7th Cir. 2009).

[165]. Comm. on Int’l Commercial Disputes, supra note 91, at 51 (quoting Judge Milton Pollack, Proof of Foreign Law, 26 Am. J. Comp. L. 470, 471 (1978)).

[166]. See Keller, supra note 127, at 171 (quoting Adler, supra note 15, at 39).

[167]. Some provisions of foreign law are modeled after U.S. law.  In such instances, a court may benefit from looking to domestic legal principles.  One illustration is the similarity between U.S. and Japanese securities law.  Current Japanese securities laws were enacted in 1948 and modeled on the U.S. Securities Act of 1933, 15 U.S.C. section 77(a) et seq. (2006), (“Securities Act”) and the U.S. Securities Exchange Act of 1934, 15 U.S.C. section 78(a) et seq. (2006),  (“Exchange Act”).  Mitsuru Misawa, Current Business and Legal Issues in Japan’s Banking and Finance Industry 1 (World Scientific Publishing Co. Pte. Ltd., 2d ed. 2011), available at http://www.worldscibooks.com/etextbook/7535/7535_chap01.pdf; see also Outline of the Financial Instruments and Exchange Act, 3-8 Doing Business in Japan § 8.01 (Matthew Bender rev. ed. 2011).

[168]. Minpō [Minpō] [Civ. C.] art. 627, para. 1 (Japan).

[169]. See Ryuichi Yamakawa, Labor Law Reform in Japan: A Response to Recent Socio-Economic Changes, 49 Am. J. Comp. L. 627, 645 (2001).

[170]. Roudou kijunhou [Labor Standards Act] No. 49 art. 20 (Japan).

[171]. As a civil law country, Japan does not have a strict doctrine of stare decisis.  In principle, the judiciary applies the statutory law to the dispute at issue and may render a decision without analyzing and synthesizing past judicial decisions.  All judgments issued by Japanese courts bind only the parties to each respective action and inferior courts, if any, where that specific action was reviewed.  While higher court decisions may be influential on other lower courts, such decisions are technically not binding with respect to future cases.  This doctrine applies to all Japanese courts, including the Supreme Court.  See generally Carl F. Goodman, The Rule of Law in Japan 187 (2d rev. ed. 2008).

[172]. Yamakawa, supra note 169, at 645; Hiroya Nakakubo, Similarities and Differences Between Labor Contracts and Civil and Commercial Contracts: Japan Report, Italian Lab. Law Online, 2, http://www.dirittodellavoro.it/public
/current/miscellanea/atti/israele/0049-j~1.pdf (last visited Nov. 6, 2011).

[173]. Yamakawa, supra note 169, at 645.

[174]. Id.

[175]. See Comm. on Int’l Commercial Disputes, supra note 91, at 49.

[176]. See id.

[177]. Teitz, supra note 7, at 98.

[178]. Bodum USA, Inc., v. La Cafetière, Inc., 621 F.3d 624, 630–31 (7th Cir. 2010).

[179]. See Cheng, supra note 12, at 1108.

[180]. This is evidenced by the European Convention on Information on Foreign Law, also known as the “London Convention,” that was prepared by the Council of Europe and signed in London in 1968.  See John C. L. Dixon, Proof of Foreign Law: The Impact of the London Convention, 46 Int’l & Comp. L.Q. 151, 155 (1997).  The 1968 London Convention was designed so that contracting states could establish systems to request and supply information about their respective civil and commercial law, judicial organization, and civil procedure.  Id.; Geeroms, supra note 78, at 137.  The Convention provides a formal mechanism for the courts of one member state to obtain information regarding foreign law from another member state.  Raphael Perl, European Convention on Information on Foreign Law, 8 Int’l J. L. Lib. 145, 145 (1980).

[181]. Geeroms, supra note 78, at 153, 157, 160 (discussing bilateral agreements between countries aimed at facilitating the exchange of information regarding foreign law).

[182]. John C. Reitz, Standing to Raise Constitutional Issues, 50 Am. J. Comp. L. (Supplement) 437, 440 (2002).

[183]. 304 U.S. 64 (1938).

[184]. John F. Preis, Alternative State Remedies in Constitutional Torts, 40 Conn. L. Rev. 723, 764 (2008).

[185]. Id.

[186]. Keller, supra note 127, at 178.

[187]. See Preis, supra note 184, at 764.

[188]. Id. at 764–65; Jonathan Remy Nash, Examining the Power of Federal Courts to Certify Questions of State Law, 88 Cornell L. Rev. 1672, 1674 (2003).

[189]. Keller, supra note 127, at 178.

[190]. See Nash, supra note 188, at 1694.

[191]. See id. at 1690–93 (noting that the court retains discretion whether to invoke certification).

[192]. Preis, supra note 184, at 765.  For example, under article VI, section 3(b)(9) of the New York Constitution, the state high court is permitted to accept certified questions only from the Supreme Court of the United States, any U.S. Court of Appeals, and the highest courts in other American states.  N.Y. Const. art. VI, § 3(b)(9).

[193]. See generally Briefing.com v. Jones, 126 P.3d 928, 929 (Wyo. 2006) (describing the requirements for federal courts certifying questions about Wyoming’s recognition of trade secrets law).

[194]. Nash, supra note 188, at 1695.

[195]. Krishanti Vignarajah, The Political Roots of Judicial Legitimacy: Explaining the Enduring Validity of the Insular Cases, 77 U. Chi. L. Rev. 781, 842 (2010).

[196]. Arizonans for Official English v. Arizona, 520 U.S. 43, 76 (1997).

[197]. Keller, supra note 127, at 178.  To the extent that the parties are embroiled in parallel litigation, a U.S. court could wait for a foreign court to rule on the matter at hand.  Id. at 184.  However, this waiting game is inefficient and potentially detrimental to the litigants and the court.

[198]. See Cheng, supra note 12, at 1108.

[199]. N.Y. State Unified Court Sys., supra note 6.

[200]. Id.

[201]. Id.  Chief Justice Spigelman retired on May 31, 2011, after serving thirteen years as chief justice.  See generally NSW Chief Justice Spigelman Resigns, The Age, Mar. 18, 2011, http://news.theage.com.au/breaking-news
-national/nsw-chief-justice-spigelman-resigns-20110318-1c04q.html.

[202]. N.Y. State Unified Court Sys., supra note 6.  The MOU is the second of its kind entered into by the NSW Supreme Court and mirrors the MOU that it entered into with the Supreme Court of Singapore in June 2010.  See generally Memorandum of Understanding Between the Supreme Court of Singapore and the Supreme Court of New South Wales on References of Questions of Law, (Sept 14, 2010), [hereinafter Memorandum of Understanding] available at http://www.ipc.nsw.gov.au/practice_notes/nswsc_pc.nsf/6a64691105a54031ca256880000c25d7/33cfadb586532d46ca25779e00171f9a?OpenDocument.

[203]. N.Y. State Unified Court Sys., supra note 6; see also Joel Stashenko, N.Y. Judges to Exchange Views with New South Wales High Court, N.Y. L.J., Nov. 1, 2010, at 1.

[204]. See generally Memorandum of Understanding, supra note 202.

[205]. Stashenko, supra note 203.

[206]. Id.

[207]. Id.

[208]. Id. (stating that although New York court administrators cannot recall a New York Court of Appeals case applying Australian law, New York commercial statutes are frequently subject to interpretation by Australian courts).

[209]. N.Y. State Unified Court Sys., supra note 6.

[210]. Stashenko, supra note 203.

[211]. See Taking a Personal Commitment to Justice to the World: An Interview with Judge Charles R. Simpson III, Third Branch (U.S. Fed. Courts, D.C.), Dec. 2008, at 1, 10–11, available at http://www.uscourts.gov/uscourts
/news/ttb/archive/2008-12%20Dec.pdf.

[212]. Id. at 10.

[213]. Id.

[214]. Id.  By way of illustration, one of the CIJR’s activities is coordinating the participation of federal courts with the Open World Program, operated by the Center for Russian Leadership Development at the Library of Congress.  D. Brooks Smith, Promoting the Rule of Law and Respecting the Separation of Powers: The Legitimate Role of the American Judiciary Abroad, 7 Ave Maria L. Rev. 1, 18 (2008).  As part of the Open World Program, over 250 Russian judges have traveled to Washington, D.C., for a two-day general overview of the American judiciary and then for eight days of meetings with local judges.  Id.  This is just one example of the various exchange programs offered by the CIJR and others.

[215]. Paul Schiff Berman, From International Law to Law and Globalization, 43 Colum. J. Transnat’l L. 485, 503 (2005); U.S. Federal Judge Discusses Judicial Administration and Ensuring “Speedy” Justice, Embassy of the U.S. in Malta (Apr. 6, 2011), http://malta.usembassy.gov/en-04062011.html.

[216]. Berman, supra note 215, at 503–04.

[217]. Sister Court in Slovenia, Third Branch (U.S. Fed. Courts, D.C.), Nov. 2010, available at http://www.uscourts.gov/News/TheThirdBranch/10-11
-01/Sister_Court_in_Slovenia.aspx.  Other U.S. federal courts have also entered into sister-city relationships including: the U.S. District Court for the Western District of Kentucky with the District Court of Pula, Croatia; the U.S. District Court for the Western District of Washington with the Primorsky Kray Region Russian Federation Court; the U.S. Bankruptcy Court for the Middle District of Tennessee with the Commercial Court of Zagreb, Croatia; and the U.S. District Court for the District of Minnesota with the Court of Appeals, Kirovohrad Region, Ukraine.  Id.

[218]. See Temple Law School Co-sponsors Visit of ABA International Division Delegation, Which Will Include Justice Stephen Breyer: Two International Law Seminars, Temple Univ. (July 9, 2008), http://www.tuj.ac.jp/newsite/main/law
/news/event20080709.html.

[219]. See Berman, supra note 215, at 503 (noting that not only have U.S. Supreme Court Justices personally met with top jurists in France, Germany, England, India, and the European Court of Justice (“ECJ”) but that members of the ECJ have visited the U.S. Supreme Court several times as well); Tori Richards, ‘Tough Guy’ Judge Leads Judicial Reform Overseas, AOL News (Aug. 16, 2010), http://www.aolnews.com/2010/08/16/tough-guy-us-judge-leads
-judicial-reform-overseas/ (describing efforts of U.S. District Judge David O. Carter to reach out to judges and attorneys around the world).

[220]. Berman, supra note 215, at 504.

[221]. Robert Nicholson, Regional Work of the Conference of Chief Justices of the Asia Pacific Region, Int’l Jud. Monitor (Jan.–Feb. 2007), http://www.judicialmonitor.org/archive_0207/globaljudicialdialogue.html.  First convened in 1985, the Conference of Chief Justices of the Asia Pacific Region meets biennially and includes judges from countries with common law systems (Pakistan, India, Sri Lanka, Bangladesh, Malaysia, Singapore, Hong Kong SAR, the Philippines, Australia, and New Zealand), those with civil law traditions (Japan, Thailand, Indonesia, the Republic of Korea, and Vietnam), and others with diverse legal traditions based on Islamic or Sharia law (Afghanistan, Malaysia, and Indonesia).  Id.  Those attending the Conference are the Chief Justices of the nation states of the Lawasia region, stretching from Afghanistan in the west to Pacific Islands in the east; from Korea in the north to Australia in the south.  If a Chief Justice cannot personally attend the Conference, it is customary that another member of the court attend.  Id.

[222]. Id.

[223]. Id.

[224]. See generally id.

[225]. The programs operated by the American Society of International Law (“ASIL”) are yet another example.  Transnational Judicial Dialogue, Am. Soc’y Int’l L., http://www.asil.org/transnational-judicial-dialogue.cfm (last visited Nov. 6, 2011).  The ASIL strives to foster transnational dialogue on strengthening international judicial cooperation among judges and courts from jurisdictions around the world through formal and informal networks.  Id. It also facilitates international judicial dialogue on current challenges facing judges and judiciaries through conferences, study tours, exchanges, and other programmatic activity and resources.  Id.

[226]. Fed. R. Civ. P. 44.1 (emphasis added).

[227]. See id.

[228]. See generally Lamm & Tang, supra note 5, at 34 (discussing cases in which courts have deferred to the interpretations of foreign governments, and cases where they have not).

[229]. Stashenko, supra note 203.

[230]. Id.

[231]. Id.

[232]. N.Y. State Unified Court Sys., supra note 6.

[233]. Id.

[234]. Id.

[235]. Stashenko, supra note 203.

[236]. N.Y. State Unified Court Sys., supra note 6.

[237]. Id.

[238]. Id.

[239]. See Perl, supra note 180, at 145.

[240]. See Alan Redfern et al., Law and Practice of International Commercial Arbitration 294 (4th ed. 2004).

[241]. See Fed. R. Evid. 706; Cheng, supra note 12, at 1106; Ellen E. Deason, Court-Appointed Expert Witnesses: Scientific Positivism Meets Bias and Deference, 77 Or. L. Rev. 59, 78–79 (1998).

[242]. See Miner, supra note 50, at 588–89; see also Byrne v. Cooper, 523 P.2d 1216, 1220 (Wash. Ct. App. 1974).

[243]. See Deason, supra note 241, at 64–67, 69–72 (1998).

[244]. See id. at 61, 74.

[245]. Rachel Kent, Expert Witnesses in Arbitration and Litigation Proceedings, Transnat’l Disp. Mgmt., June 2007, available at http://www.wilmerhale.com/files/Publication/73eaccae‑951d‑4dd3‑ab8f‑24b6b1836dda/Presentation/PublicationAttachment/d6fdcd85‑16df‑44e7‑b064‑2764ac647870/expertWitness_tv43article02.pdf; see also Deason, supra note 241, at 74.

[246]. See Fed. R. Evid. 706 notes of advisory committee on rules; Deason, supra note 241, at 79.

[247]. See Cheng, supra note 135, at 1270, 1303.

[248]. Fed. R. Evid. 706(a).

[249]. See Servo Kinetics, Inc. v. Tokyo Precision Instruments Co., 475 F.3d. 783, 790 (6th Cir. 2007) (addressing district court’s appointment of a professor to provide information and answer specific questions about Japanese contract law); Institut Pasteur v. Simon, 383 F. Supp. 2d 792, 795 n.2 (E.D. Pa. 2005) (addressing court’s appointment of an expert on French law); Carbotrade S.p.A. v. Bureau Veritas, No. 92 Civ. 1459, 1998 U.S. Dist. LEXIS 10575, at *7 (S.D.N.Y. July 13, 1998) (addressing court’s appointment of an expert on Greek law).

[250]. Geeroms, supra note 78, at 145.

[251]. See Cheng, supra note 12, at 1106; Cheng, supra note 135, at 1303.

[252]. Geeroms, supra note 78, at 145.

[253]. Fed. R. Evid. 706(b).

[254]. See Comm. on Int’l Commercial Disputes, supra note 91, at 52.

[255]. Id. at 54; see also Cheng, supra note 12, at 1106.

[256]. See Kent, supra note 245.

[257]. See Deason, supra note 241, at 63.

[258]. See Teitz, supra note 7, at 108.  By way of example, in Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 88 (2d Cir. 1998), the court appointed a law professor as an expert amicus curiae in addition to soliciting supplemental briefs from the parties on questions of Russian law.

[259]. See Miner, supra note 50, at 588 (quoting John R. Schmertz, Jr., The Establishment of Foreign and International Law in American Courts: A Procedural Overview, 18 Va. J. Int’l L. 697, 713 (1978)).

[260]. 475 F.3d. 783, 790 (6th Cir. 2007).

[261]. See id.

[262]. See Miner, supra note 50, at 589.

[263]. See id.

[264]. Cheng, supra note 12, at 1107–08.

[265]. Id. at 1108.

[266]. Fed. R. Evid. 706(a)–(b).

[267]. See id. at 706(b) (“The compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.”).

[268]. See Teitz, supra note 7, at 108.

[269]. See Comm. on Int’l Commercial Disputes, supra note 91, at 54.  It should be noted, however, that the absence of ex parte discussions reduces the court’s flexibility in determining foreign law and is inconsistent with the concept that the judge can utilize any resource with or without notice to the litigants.  Id. at 54–55.

[270]. See id. at 54.

[271]. Id. at 54–55.

[272]. See id. at 55–56.

[273]. Geeroms, supra note 78, at 145–46.

[274]. Comm. on Int’l Commercial Disputes, supra note 91, at 55.

[275]. See id.

[276]. See generally Henry v. S/S Bermuda Star, 863 F.2d 1225 (5th Cir. 1989) (adopting certain portions of the master’s report); Fin. One Pub. Co. v. Lehman Bros. Special Fin., Inc., No. 00 Civ. 6739(CBM), 2003 WL 2006598 (S.D.N.Y. May 1, 2003) (adopting special master’s report in light of scarcity of materials on Thai law); Corporacion Salvadorena de Calzado, S.A. v. Injection Footwear Corp., 533 F. Supp. 290 (S.D. Fla. 1982) (noting that the appointment of the master helped facilitate an ultimate decision in the case where the parties’ experts conflicted about all material aspects of foreign law).

[277]. Comm. on Int’l Commercial Disputes, supra note 91, at 56.

[278]. Id.

[279]. See id. at 54.

[280]. See id.

[281]. See generally Wright & Miller, supra note 84, § 2444.

[282]. Comm. on Int’l Commercial Disputes, supra note 91, at 54 (noting the personal experiences of John Martin, former judge for the U.S. District for the Southern District of New York, as well as Professor Hans Smit of Columbia University).

[283]. Saudi Basic Indus. Corp. v. Mobil Yanbu Petrochem. Co., 866 A.2d 1, 31–32 (Del. 2005).

[284]. Id.

[285]. Id.

[286]. Id. at 32; Saudi Basic Indus. Corp. v. Mobil Yanbu Petrochem. Co., No. 00C-07-161-JRJ, 2003 Del. Super. LEXIS 296, at *1–2 (Del. Super. Ct. Aug. 26, 2003).

[287]. The concept of amicus curiae participation in civil litigation is long established in common law jurisdictions.  Johannes Chan, Amicus Curiae and Non-Party Intervention, 27 H.K. L.J. 391, 394 (1997).  Amicus curiae briefs likely originated in Rome as a means to aid courts when handling matters involving information outside of their knowledge.  Sylvia H. Walbolt & Joseph H. Lang, Jr., Amicus Briefs: Friend or Foe of Florida Courts?, 32 Stetson L. Rev. 269, 270 (2003). English courts utilized amicus briefs for similar purposes of providing neutral assistance in resolving issues unfamiliar to the court.  Id.  In the United States, the use of amicus curiae briefs evolved from this original, detached “friend of the court” purpose to that of more direct advocacy. Id. at 271.  Interested parties such as governmental sectors and private third parties began using amici to advocate their positions when wishing to influence the outcome of private disputes involving larger constitutional and policy issues.  Id. at 273; see also Paul M. Collins Jr., Lobbyists Before the U.S. Supreme Court: Investigating the Influence of Amicus Curiae Briefs, 60 Pol. Res. Q. 55, 58 (2007).  The use of amici for such purposes increased in the twentieth century as organizations began utilizing amici to “judicially lobby” for outcomes that aligned with their positions.  Walbolt & Lang, supra, at 287.  Also, governmental parties have long used amicus briefs to argue their positions.  Id.

[288]. 218 F.3d 121 (2d Cir. 2000).

[289]. Id. at 126 (seeking insight on the distribution and advisory fee disclosure requirements under Rule 10b-10 under the Securities Exchange Act of 1934).

[290]. Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 10 F.3d 425 (7th Cir. 1993).

[291]. Id. at 431.

By Lawerence L. Muir, Jr.

Introduction

Over the past five years, a number of academic articles have called for the creation of an international convention to govern the rules, rights, and responsibilities of nations in cyber warfare and information operations.{{1}}  Although cyber warfare by its nature is an international issue, the articles fail to recognize the overwhelming obstacles that will prevent a timely and meaningful agreement from taking form and why an agreement may not benefit the United States.  This Essay addresses the need for clarification of cyber warfare laws from the perspective of strengthening the United States and protecting American citizens, businesses, and government.

The development of a legal regime around cyber warfare should have four goals: first, to protect the full panoply of property rights, second to minimize cyber attacks and reduce their collateral damage, third to deter the use of proxies in the commission of cyber attacks, and fourth to provide legal recourse for aggrieved parties.  These goals are more likely to be realized if the United States unilaterally develops its own framework for cyber war.

This Essay will first briefly address the significant unresolved issues in cyber warfare.  By laying out these issues, the Essay will suggest why an international framework will not be forthcoming, let alone effective.  Next, the Essay will suggest a skeleton plan of how the United States can take the world lead in cyber war to protect its own interests and promote responsible behavior by other nations.

I.  An International Framework is Unlikely and not Advantageous to the United States

There is a general consensus that cyber attacks, whether for the purposes of crime, terrorism, or warfare, may have catastrophic effects.  Moreover, there is a consensus that something must soon be done to protect the nation from cyber attacks.  The problem is that when one looks behind these generic platitudes, the unresolved issues are so daunting that it is hard to know how to begin developing the framework, let alone how it should take form.  The following paragraphs contain a brief overview of the ambiguities that will prevent any meaningful international discourse and resolution from taking place.

A.            How to Classify Assets?

Attorneys seek to develop new laws through analogizing new actions to existing bodies of law.  The nature of cyber attacks presents unique challenges to those analogies.  Computer malware may be used to attack many different types of assets.  Attacks may disable networks and websites,{{2}} shut down nuclear power plants,{{3}} or steal intellectual property.{{4}}  A computer virus that shuts down a power grid in the United States can arguably be a crime because it intrudes upon the property of a business and causes it injury.{{5}}  If that same power grid powers a military installation, it could be construed as an act against the military, possibly violating the Law of Armed Conflict (“LOAC”).{{6}}  Conversely, if Chinese cyber thieves stole the Google search algorithm,{{7}} that likely would not be a violation of international law.{{8}}  That analysis may change if those same Chinese programmers stole Lockheed Martin’s engineering research to gain the ability to sabotage a new American fighter jet.{{9}}

These hypothetical situations demonstrate the difficulties in selecting a body of law to apply to an international convention.  Framers cannot make absolute judgments declaring attacks on certain asset classes, or targets, as crimes or acts of war because of the variables within the equation.{{10}}  In addition, the consequences for treating attacks as a violation of the LOAC are so severe compared to violations of criminal law that an impasse in selecting the appropriate choice of laws could derail the entire negotiation.  Countries that rely on cyber attacks primarily to commit crimes and espionage will seek to avoid LOAC classification, while countries with strong cyber warfare capabilities and significant cyber vulnerabilities will wish to reserve the ability to address cyber attacks with a military response.

B.            Asymmetries in Cyber Warfare

The most significant impediment to an international resolution is the asymmetrical positioning of individual nations.  The United States has considerable capabilities in cyber weapons,{{11}} but is also highly vulnerable to cyber attack due to the amount of information and dependence on computer networks.  The technologies that put the United States in a position of strength may also be its Achilles’ heel.

Compare the position of the United States to North Korea and China.  If North Korea, which possesses cyber warfare capabilities,{{12}} shut down an American power grid, it would be devastating.  If the United States did the same to North Korea, would many North Koreans even notice?  North Korea would never seek to subscribe to an international treaty curtailing cyber weapons knowing that it would be signing away a tool that cannot similarly be effectively deployed against it.

Likewise, the gains made by China by committing cyber attacks greatly outweigh China’s vulnerabilities.  China has been able to steal significant amounts of American intellectual property{{13}} that has jump started its economy at a fraction of the development cost.{{14}}  Moreover, the People’s Liberation Army has cyber warfare capabilities that enhance China’s military capabilities.{{15}}  The asymmetrical position of the United States as victim to China’s theft makes it unlikely that China would sign any meaningful cyber security treaty.  Moreover, China owns 9.8% of American debt,{{16}} further weakening the United States’s negotiating position.{{17}}  Finally, China’s veto on the U.N. Security Council allows it to block any international treaty that contains meaningful protections against China’s cyber units.

The nations that perpetrate cyber attacks against the United States have little incentive to negotiate limitations on cyber activities.  If the United States understands the threat cyber economic espionage poses to its economic growth, it will have to take unilateral action to incentivize these states to eventually join an international convention.

C.            The Difficulty of Attribution and Adopting a Correlative Legal Standard

Attribution is the ability to identify who attacked a computer network and from what location.  This is a technological challenge because attackers have abilities to disguise their identities.  The Stuxnet virus that obstructed Iranian nuclear ambitions at the Bushehr and Natanz plants has been studied by a number of international computer security experts.  None have been able to definitively pinpoint the nation responsible for the attack or even identify the target.{{18}}

Attributing individual or group responsibility for attacks is even more difficult than national attribution.  Cyber attackers fall into one of three categories.  First, citizen hackers—individuals or small groups of hackers that band together for a common enterprise, whether for political motivation{{19}} or criminal enterprise.{{20}}  Second, cyber militias—they have structural similarity to citizen hacking groups but are banded together by the state and may be given direction by state actors.{{21}}  A cyber militia is a convenient partnership for a rogue state because its existence enables the nation to achieve state ends, but offers plausible deniability to the state.{{22}} Third, official state agencies—such as the 67th Network Warfare Wing of the United States Air Force.{{23}}

Attribution is an imperfect science, and as such leads to disagreement in selecting an applicable legal standard for determining the responsibility of states when either of the first two classes launches a cyber attack.  Three legal standards have been offered, each of which incentivizes states to use non-state actors to the detriment of protecting potential victims from cyber attacks.

As Shackelford and Andres have stated, the standards hinge on two separate issues: level of state control and prosecutorial burden of proof.  As to the level of state control, the legal standard set forth by the International Court of Justice (“ICJ”) in Nicaragua{{24}} holds that a state is liable for the actions of “paramilitaries or non-State actors only if the actors in question act in ‘complete dependence’ on the state.”{{25}} The opposing “overall control” standard set forth in Prosecutor v. Tadic{{26}} holds that “where a State has a role in organizing, coordinating, and providing support for a group, the group’s acts are attributable to the State.{{27}}

International law also differs on burden of proof.  The ICJ relied on the Nicaragua effective control standard to decide Serbia’s culpability in the genocide of Bosnian Muslims, but held that Serbia’s guilt must be proven beyond any doubt, rather than beyond a reasonable doubt.{{28}}  Due to the inherent difficulties in attribution, any international framework using the effective control standard for cyber attacks would be effectively neutered before it would ever be tested.

The differing international standards further demonstrate why the United States should not rely on an international framework.  By agreeing to a framework using these standards, the United States would render itself vulnerable to uncontrolled rogue actors not accountable to any set of laws.  These rogue actors may cause significant damage to the civilian population, but the heightened standard may enable the actors to escape responsibility, thereby encouraging damaging attacks.  An international framework, therefore, may not be strong enough to protect American interests even if the framers and signatories are somehow able to agree on a standard to use.

II.  The United States Should Create its Own Framework

The United States probably has the highest level of vulnerability to a cyber attack based on its reliance on technology.  That vulnerability, however, does not leave the U.S. in a weak negotiating position because it also possesses the strongest cyber warfare capabilities.{{29}}  Therefore, as both the strongest and most vulnerable nation, the United States is most in need of establishing the laws and consequences regarding foreign cyber attacks.

The outline of this American framework would address the aforementioned issues in this way.  First, the United States should create a protected class of cyber assets and declare that an attack on any of the listed assets could trigger a military response from the United States.  Those assets should include any military network, no matter the size or function.  The list should protect the power grids, air traffic control networks, and other assets that are used for both military and civilian functions and that are instrumental in the public safety of Americans.  Protecting these assets is imperative to the welfare of the United States, the safety of its citizens, and the functioning of its economy.

One of the surprising issues revealed during the investigation into the attacks on Google was that Google believed the U.S. government would offer it some protection from foreign cyber attack.{{30}}  To address this confusion, the U.S. government should build public-private partnerships with certain American businesses and offer to provide some measure of protection and support if attacked in exchange for the business sharing threat information and implementing cyber security enhancements.  These public-private partnerships should include any business that falls into one of two categories: businesses that hold information for the U.S. government,{{31}} or those whose cyber security is vital to national security.  The latter category will include technology companies, such as Google, whose technology is imperative to American technological and economic advantage, financial institutions who serve as repositories for the wealth of the nation, and other appropriate industries.  If a nation attacks a business in one of those categories, the United States would reserve the right to respond with its military or law enforcement personnel.

The LOAC promotes the necessity of organized warfare fought through official state action, and cyber warfare should be no different.  The American framework should remove the distinction between state and non-state actors where culpability is at issue.  If the United States can present prima facie evidence that a foreign nation had any knowledge of the actions of individual hackers or a cyber militia group in an attack on U.S. assets, the United States should reserve the right to make an equivocal response and seek legal recourse.  The equivocal response is the big stick the United States possesses to protect its assets, while the legal recourse promotes its willingness to settle matters peacefully rather than militarily when appropriate.{{32}}  By incentivizing states to control their hackers and cyber militias, the United States will promote compliance with international law and minimize collateral damage from cyber attacks.  This policy will have the effect of promoting caution in using cyber attacks and raising the treatment of cyber warfare to be on par with traditional warfare.

Conclusion

A significant number of challenges await the treaty negotiators that will draft the international framework for cyber warfare.  Those challenges, ultimately, will thwart the promulgation of a timely and meaningful treaty.  In the meantime, the United States government, American businesses, and American citizens will continue to be victimized by foreign cyber attacks at great loss to our financial and intellectual capital.  It is time for the United States to unilaterally set its standards to maximize the protection of the aforementioned groups.  The United States must act soon, not just to reduce the outflow of this capital, but also because it is still the preeminent cyber warfare power.  Not acting will jeopardize that standing, and if that happens, the nation’s economic strength will be at the mercy of foreigners sitting behind computer screens.


* Assistant Attorney General, Computer Crime Section, Office of the Attorney General of Virginia.  He is a member of the Virginia Governor’s Homeland Security Working Group.  Beginning in January 2012, he will be an adjunct professor of law in cyber crime at Washington & Lee University School of Law.  He thanks Lara Dresser of the Richmond Public Library for her research assistance, and his colleagues and father for their thoughtful commentary on the paper.

[[1]] See, e.g., Duncan B. Hollis, Why States Need an International Law for Information Operations, 11 Lewis & Clark L. Rev. 1023, (2007); Arie J. Schaap, Cyberwarfare Operations: Development and Use Under International Law, 64 A.F. L. Rev. 121, (2009); Scott J. Shackleford and Richard B. Andres, State Responsibility for Cyber Attacks: Competing Standards for a Growing Problem, 42 Geo. J. Int’l L. 971 (2011).[[1]]

[[2]] Hollis, supra note 1 at 1024–25 (reviewing the cyber attacks on Estonian networks and websites).[[2]]

[[3]] For more information about the Stuxnet virus, see Michael Joseph Gross, A Declaration of Cyber-War, Vanity Fair, Apr. 2011, available at http://www.vanityfair.com/culture/features/2011/04/stuxnet-201104.[[3]]

[[4]] For more information on Chinese cyber attacks on American private businesses during Operations Aurora and Shady RAT, see Michael Joseph Gross, Enter the Cyber-Dragon, Vanity Fair, Sept. 2011, http://www.vanityfair.com/culture/features/2011/09/chinese-hacking-201109.[[4]]

[[5]] See Va. Code Ann. §18.2-152.4 (2010) as an example of a criminal law.[[5]]

[[6]] The Law of Armed Conflict is not codified.  Rather it is the aggregation of international treaties and customs of international conduct by governments.[[6]]

[[7]] Google is a private business and its proprietary algorithm is private property owned by Google.  The Google source code was the subject of what is now known Operation Aurora.  Kim Zetter, Google Hack Was Ultra Sophisticated, New Details Show, Wired.Com, Threat Level (Jan. 14, 2010 8:01 PM), http://www.wired.com/threatlevel/2010/01/operation-aurora/.[[7]]

[[8]] See Jack Goldsmith, General Cartwright on Offensive Cyberweapons and Deterrence, Lawfare (Nov. 8, 2011 10:27 AM), http://www.lawfareblog.com
/2011/11/general-cartwright-on-offensive-cyber-weapons-and-deterrence/.[[8]]

[[9]] See Siobahn Gorman and Julian E. Barnes, Cyber Combat: Act of War, Wall St. J., (May 31, 2011), http://online.wsj.com/article
/SB10001424052702304563104576355623135782718.html.  Lockheed Martin is a private business, but here the stolen property would be both civilian and militarily owned.  The property would also belong to the Department of Defense and the theft of the property is a threat against the U.S. military.[[9]]

[[10]] These variables include whether the target is a private or public entity, military or civilian, the type of information compromised, that information’s national security value, and the direct and collateral damage done by the attack.[[10]]

[[11]] Damien McElroy, Military Balance Report: Countries Creating New Cyber Warfare Organizations, Daily Telegraph, Mar. 9, 2011, http://www.telegraph.co.uk/news/uknews/defence/8369520/Military‑Balance‑report-countries-creating-new-cyber-warfare-organisations.html.  The United States has the preeminent cyber warfare capabilities, followed by Russia and China.[[11]]

[[12]] See Chico Harlan and Ellen Nakashima, Suspected North Korean Cyberattack on Bank Raises Fears for S. Korea, Allies, Wash. Post (Aug. 30, 2011), http://www.washingtonpost.com/world/national‑security/suspected‑north
‑korean‑cyber‑attack‑on‑a‑bank‑raises‑fears‑for‑s‑korea‑allies/2011/08/07/gIQAvWwIoJ_story.html (detailing a North Korean cyber attack on Nonghyup agricultural bank in South Korea, causing their customers to be unable to access their accounts).[[12]]

[[13]] See Gross, supra note 4.[[13]]

[[14]] Siobhan Gorman, China Singled Out for Cyber Spying, Wall St. J. (Nov. 4, 2011), http://online.wsj.com/article
/SB10001424052970203716204577015540198801540.html.[[14]]

[[15]] Kathrin Hille, Chinese Military Mobilises Cybermilitias, Financial Times (Oct. 12, 2011), http://www.ft.com/cms/s/0/33dc83e4-c800-11e0-9501
-00144feabdc0.html#axzz1dAgZ8HRd (detailing the significant efforts made by the PLA to gain intelligence and do other activities against the West).[[15]]

[[16]] Peter Grier, National Debt: Whom Does the United States Owe?, Christian Sci. Monitor (Feb. 14, 2011), http://www.csmonitor.com/USA/Politics
/DC-Decoder/2011/0204/National-debt-Whom-does-the-US-owe.[[16]]

[[17]] Admiral Mike Mullen stated over the summer of 2010 that the national debt was the biggest threat facing the United States in the future.  Mullen: Debt is Top National Security Threat, CNN (Aug. 27, 2010), http://articles.cnn.com
/2010-08-27/us/debt.security.mullen_1_pentagon-budget-national-debt-michael
-mullen?_s=PM:US.  Compare that to then CIA Director, now Secretary of Defense Leon Panetta’s comment the Senate Armed Services Committee in June 2011 that, “The next Pearl Harbor we confront could very well be a cyber-attack that cripples our power systems, our grid, our security systems, our financial systems, our governmental systems.”  Laura Crimaldi, Nations Fight Against Cyber Intruders Goes Local, MSNBC.com (July 20, 2011), http://www.msnbc.msn.com/id/43828271/ns/technology_and_science-security/t
/nations-fight-against-cyber-intruders-goes-local/#.Trq17FYu57c.  It seems the debt and cyber security are not mutually exclusive, and that one threat may play into another.[[17]]

[[18]] See Yossi Melman, Iran Nuclear Worm Targeted Natanz, Bushehr Nuclear Sites, Haaretz.com (Nov. 20, 2010), http://www.haaretz.com/news
/diplomacy-defense/iran-nuclear-worm-targeted-natanz-bushehr-nuclear-sites-1.325596; see also Gross, supra note 3.[[18]]

[[19]] This is frequently referred to as hacktivism, and the group primarily responsible for this form of cyber warfare is known as “Anonymous.”  See, e.g., Hannah Roberts, Cashing in as the Face of Anonymous: Hacking Group Spokesman Lands a Six Figure Book Deal, Daily Mail (Nov. 5, 2011 11:40 AM), http://www.dailymail.co.uk/news/article‑2057884/Anonymous‑spokesman‑Barrett-Brown-lands-figure-book-deal.html?ito=feeds-newsxml.[[19]]

[[20]] See Hemanshu Nigam, Mobsters, Taunters and More: The Four Kinds of Hackers, ABC News (July 19, 2011), http://abcnews.go.com/Technology/We
_Find_Them/kinds‑hackers‑mobsters‑taunters/story?id=13979327#.Trq36FYu57c.  These hackers are referred to as “mobsters” because they are linked with a new form of organized crime.[[20]]

[[21]] See Hille, supra note 15.[[21]]

[[22]] See Hollis, supra note 1 at 1025–28, for an explanation of the Russian cyber attacks against the Estonian government in the wake of a political dispute.[[22]]

[[23]] The United States Department of Defense has organized cyber units from all of the branches of the military under the United States Cyber Command, or “USCYBERCOM” at Fort Meade, home of the National Security Agency.[[23]]

[[24]] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 110 (Jun. 27) (laying out the effective control standard); Shackelford and Andres, supra note 1 at 986.[[24]]

[[25]] See Shackleford and Andres, supra note 1 at 986.[[25]]

[[26]] See Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on Defense Motion for Interlocutory Appeal on Jurisdiction (Int’l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995); Shackleford and Andres, supra note 1 at 986.[[26]]

[[27]] See Shackleford and Andres, supra note 1 at 986, for an explanation of the operational control standard.[[27]]

[[28]] Id. [[28]]

[[29]] See, Damien McElroy, Military Balance Report: Countries Creating New Cyber Warfare Organizations, The Telegraph (Mar. 9, 2011), http://www.telegraph.co.uk/news/uknews/defence/8369520/Military‑Balance‑report-countries-creating-new-cyber-warfare-organisations.html.[[29]]

[[30]] See Gross, supra note 4 (explaining that Google told the NSA after its source code had been attacked that Google thought the NSA protected them from actions of that nature).[[30]]

[[31]] For example, defense contractors hold significant amounts of military research, and therefore their networks should have to comply with Department of Defense standards.[[31]]

[[32]] Legal recourse options may include suits against foreign nations, prosecution of suspected perpetrators, but may also include policy decisions such as the suspension of foreign aid to the nations allowing the actors to function.[[32]]

By Elizabeth B. Ludwin King

On October 20, 2011, rebel forces killed Muammar Gaddafi, thereby ending an eight-month civil war as well as Gaddafi’s forty-two-year rule over Libya.{{1}}  The National Transitional Council (“NTC”), the interim government, has a huge task before it—establishing a democracy where one has never existed.  Part of this task will entail grappling with crimes committed both during the civil war and throughout Gaddafi’s reign.  Building a new government has its challenges, but the situation in post-conflict Libya presents complications that will impact the way the new government handles the crimes of the former regime.  Given these obstacles, the NTC should seek international assistance as it develops a transitional justice plan.  A hybrid approach to accountability, involving both local and international actors, will put Libya on stronger footing as it emerges on the global stage as a renewed country.

The civil war that ended in October 2011 began eight months earlier during the Arab Spring, in which people throughout the Middle East stood up against their governments and fought for a change in regime.{{2}}  Bolstered by the success of protesters in Tunisia and Egypt, Libyans seized the moment and rose up against Muammar Gaddafi, the despot who had ruled the country with an iron fist for over four decades.{{3}}  Known for suppressing opposition with extrajudicial executions, torture, and public trials, Gaddafi was just as ruthless during the uprising.  He ordered attacks on peaceful protesters throughout the country, and torture, deportation, rape, and disappearances were all systematic during this time.{{4}}

Now that the NTC is in power and making plans for the future, it must also address the crimes of the past, both during and before the civil war that toppled the Gaddafi government.  The International Criminal Court (“ICC”) issued arrest warrants for Gaddafi and two of his aides in June 2011 for crimes against humanity stemming from the uprising.{{5}}  There are also, however, untold crimes that occurred during Gaddafi’s forty-two-year rule for which he and quarry are responsible.

The NTC, which has thousands of prisoners in detention without charge, may also want to keep its mechanisms of accountability inside its borders and hold purely domestic trials.{{6}}  The best option, however, is a hybrid model that involves both national and international efforts.  Although no one approach will be satisfactory to all interested parties, a transitional justice plan involving hybrid institutions would best serve the two overarching goals of lending legitimacy to the process of assigning criminal responsibility and of strengthening Libya’s legal system.

A purely international approach to accountability will provide only limited justice to the people of Libya.  With Gaddafi deceased, the ICC will try only two individuals for crimes committed during the uprising, Saif al-Islam Gaddafi and Abdullah al Senussi—assuming the ICC can get custody and assuming the ICC chooses not to prosecute them itself.{{7}}  Standing alone, this effort at accountability will likely be viewed as incomplete by the Libyan people, who may then take matters into their own hands and engage in extrajudicial retaliation.

Another option would be for Libya to hold trials internally, perhaps in concert with any trial that occurs at the ICC.  The problem here, however, is one of capacity.  It is unclear whether the legal framework that existed under Gaddafi will be adequate to address the crimes committed during the civil war or under Gaddafi’s rule.{{8}}  One Libyan lawyer commented, “What we have been through is something unusual. We don’t have a court that applies for that.”{{9}}  Given the challenges of a purely domestic approach to accountability, international assistance could be the most beneficial way for Libya to demonstrate its commitment to human rights and the rule of law.

A hybrid approach to justice means that international actors would work with Libyan actors—most likely within Libya—to develop a transitional justice plan to address the particularities of the Libyan situation.  The benefits of hybrid efforts in this case are twofold.  First, as Libya emerges from the Gaddafi era, it needs to establish its legitimacy as a renewed country, both internally and externally.  A purely domestic effort may lead to claims of bias within Libya, as rival tribal and regional groups claim that their interests are disregarded or their members are unfairly targeted for prosecution.  The presence of international actors will lend legitimacy to the process in Libya and will result in heightened local buy-in because bias will be less of an issue.{{10}}  At the same time, hybrid initiatives will increase the legitimacy of the transitional process in the eyes of the international community.

Second, countries in transition often need to revamp the existing legal framework to allow accountability measures to take hold.  Under a hybrid approach to justice, the national and international actors working together would engage in knowledge transfer, thereby allowing Libya to benefit from the experience of others who have worked in similar situations.  This knowledge transfer results in local capacity building, which is crucial following a civil war, brutal regime, or both.  A purely international effort might be able to mete out limited justice, but Libya would not reap the benefits of learning from international actors with experience in post-conflict justice.

Libya’s hybrid approach to accountability should include trials, a truth commission, and perhaps amnesty.  Hybrid courts have proven to be successful in Sierra Leone and Cambodia, among other countries.  In Libya’s case, a court situated within Libya and presided over by national and international judges would hold trials of people suspected of committing war crimes and crimes against humanity as well as other offenses during Gaddafi’s regime and during the civil war.  A truth commission, staffed by both national and international investigators, will allow people throughout the country to play a role in reconstructing the narrative from the four decades under Gaddafi.  The commission should interview people from all sides to the conflict, and the presence of international investigators will help minimize claims of bias among the commission.  Finally, there has been some talk among the NTC of issuing amnesty for Gaddafi’s supporters who did not commit war crimes or crimes against humanity during the civil war and who agree to cooperate with the new government.{{11}}  Although amnesties are controversial mechanisms of dealing with past atrocities, they may have their place in this situation and may help Libya start anew.  Any amnesty, however, should come with the requirement that the individual testify before the truth commission as a condition of being granted amnesty.  This approach means that, although the individual is not legally punished for his actions, he admits to them and sheds light on what took place during the war.

However the NTC chooses to address the crimes of the past, it must remain impartial and address any crimes committed by its own supporters as well as those who supported Gaddafi.  Any approach it takes to justice is likely to be met with claims of bias, which is why the international community should have a partnership role in Libya’s transition.  As Libya moves forward and reintroduces itself to the world, it will also need to look backward and address the atrocities of its past.



* Visiting Assistant Professor, Wake Forest University School of Law.

[[1]] Neil MacFarquhar, An Erratic Leader, Brutal and Defiant until the End, N.Y. Times (Oct. 20, 2011), http://www.nytimes.com/2011/10/21/world
/africa/qaddafi-killed-as-hometown-falls-to-libyan-rebels.html?pagewanted=all.[[1]]

[[2]] See generally Gary Blight, Sheila Pulham & Gary Torpey, Arab Spring: An Interactive Timeline of Middle East Protests, The Guardian (Oct. 20, 2011, 5:40 EDT), http://www.guardian.co.uk/world/interactive/2011/mar/22/middle
-east-protest-interactive-timeline (providing an infographic timeline of Middle East uprisings).[[2]]

[[3]] Richard Boudreaux, Eccentric and Brutal, He Met His End as a Fugitive, Wall St. J. (Oct. 21, 2011), http://online.wsj.com/article
/SB10001424052970203752604576643061691909524.html.[[3]]

[[4]] Office of the Prosecutor, Int’l Criminal Court (ICC), First Rep. of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970, ¶¶ 33–34 (May 5, 2011), http://www.icc
‑cpi.int/NR/rdonlyres/A077E5F8‑29B6‑4A78‑9EABA179A105738E/0/UNSCLibyaReportEng04052011.pdf.[[4]]

[[5]] See Situation in the Libyan Arab Jamahiriya, Case No. ICC 01/11-13, Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi Issued on 27 June 2011, http://www.icc-cpi.int/iccdocs/doc/doc1099321.pdf; Situation in the Libyan Arab Jamahiriya, Case No. ICC 01/11-14, Warrant of Arrest for Saif Al-Islam Gaddafi Issued on 27 June 2011, http://www.icc-cpi.int/iccdocs/doc
/doc1099329.pdf; Situation in the Libyan Arab Jamahiriya, Case No. ICC 01/11-15, Warrant of Arrest for Abdullah Al-Senussi Issued on 27 June 2011, http://www.icc-cpi.int/iccdocs/doc/doc1099332.pdf; see also Situation in the Libyan Arab Jamahiriya, Case No. ICC 01/11-14-Red, Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed AbuMinyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi issued on 16 May 2011, http://nifcrimes.com/Libya_redacted.pdf.[[5]]

[[6]] The NTC must also, of course, look into the crimes that occurred at the hands of its supporters.  As of October 27, there are credible reports of prisoner mistreatment.  Mary Beth Sheridan & Colum Lynch, Gaddafi Loyalist Injured in Custody of Revolutionaries, Wash. Post (Oct. 27, 2011), http://www.washingtonpost.com/world/middle_east/gaddafi-loyalist-injured-in
-custody-of-revolutionaries/2011/10/27/gIQAo7hMNM_story.html?hpid=z2.[[6]]

[[7]] The ICC does not have its own police force.  It relies instead on the law enforcement officers of other countries to execute arrest warrants.  See Aaron Gray-Block, Gaddafi Son Eyes Safety, Talks to Hague, Reuters (Oct. 28, 2011), http://www.reuters.com/article/2011/10/28/us-libya-idUSTRE79F1FK20111028.[[7]]

[[8]] Mary Beth Sheridan, Prisoners in Libya Languish Without Charge, Wash. Post (Oct. 22, 2011), http://www.washingtonpost.com/world/middle_east
/prisoners‑in‑libya‑languish‑without‑charge/2011/10/22/gIQAz0EZ7L_story.html
?hpid=z1.[[8]]

[[9]]  Id. [[9]]

[[10]] In El Salvador, for example, a hybrid truth commission was established following a civil war because post-war divisions were such that it would have been impossible for the population to trust a Salvadoran to act without bias. See Elizabeth B. Ludwin, Trials and Truth Commissions in Argentina and El Salvadorin Accountability for Atrocities: National and International Responses 273, 286 (Jane Stromseth ed., 2003).[[10]]

[[11]] Sheridan, supra note 8.[[11]]