By Marissa Florio

Under international and U.S. law, individuals can be prosecuted for membership in criminal enterprises. But what do we mean by “criminal enterprise”? The FBI defines a criminal enterprise as “a group of individuals with an identified hierarchy, or comparable structure, engaged in significant criminal activity.” Typically, we think of drug cartels, racketeering enterprises, or even the Gestapo. But what about corporations? They have shown themselves to be capable of egregious and criminal behavior: insidiously evading regulations or instigating and carrying out violent acts. Corporations should likewise be eligible to be labelled as criminal enterprises, as they are groups of individuals with an identified hierarchy that can engage in significant criminal activity. Corporate directors and officials could thus then be found guilty for the corporation’s bad acts much more easily, which I find appropriate.

Both international law and U.S. domestic law provide for criminal liability for membership in a criminal enterprise. Simply being a member in such a group is enough to warrant prosecution, without further evidence that a specific individual committed any other crime. Domestically, membership in an enterprise that participates in racketeering activity is penalized under the Racketeer Influenced and Corrupt Organizations Act (RICO). Internationally, at the Nuremburg trials, the Gestapo was declared a criminal enterprise and all members were automatically penalized. Similarly, in the ICTR, a defendant can be found guilty for the acts of others under the theory of extended joint liability for a joint criminal enterprise. What would it take for a corporation to be deemed a “criminal enterprise”?

Domestic Law

In Doe I v. Unocal Corp., the Ninth Circuit assessed whether there was a genuine issue of material fact as to whether Unocal, as a corporation, aided and abetted the Myanmar military’s perpetration of forced labor, murder, and rape. The Myanmar military was providing security and other services for Unocal’s project of producing, transporting, and selling natural gas deposits off the nation’s coast. Allegedly, the military was committing human rights violations in connection with the project, forcing men to work on the project under threat of violence, killing those who tried to escape from the forced labor program, and torturing their families:

“For instance, Jane Doe I testified that after her husband, John Doe I, attempted to escape the forced labor program, he was shot at by soldiers, and in retaliation for his attempted escape, that she and her baby were thrown into a fire, resulting in injuries to her and the death of the child. Other witnesses described the summary execution of villagers who refused to participate in the forced labor program, or who grew too weak to work effectively. Several Plaintiffs testified that rapes occurred as part of the forced labor program. For instance, both Jane Does II and III testified that while conscripted to work on pipeline-related construction projects, they were raped at knife-point by Myanmar soldiers who were members of a battalion that was supervising the work.”

The Circuit court assessed Unocal’s knowledge that the Myanmar military was allegedly committing human rights violations in connection with this project. The court found there to be sufficient evidence of knowledge to withstand summary judgment. The court stated,

[E]ven before Unocal invested in the Project, Unocal was made aware – by its own consultants and by its partners in the Project – of this record that the Myanmar Military might also employ forced labor and commit other human rights violations in connection with the Project. And after Unocal invested in the Project, Unocal was made aware – by its own consultants and employees, its partners in the Project, and human rights organizations – of allegations that the Myanmar Military was actually committing such violations in connection with the project.

The parties in Unocal settled shortly after this ruling on summary judgment. However, had the case gone to trial, could plaintiffs have presented an argument that Unocal was a criminal enterprise?

In domestic cases, the answer is no. The Ninth Circuit held that RICO could not be argued, as the statute did not apply extraterritorially. (For more on the presumption against extraterritoriality in U.S. domestic law, see also EEOC v. Arabian American Oil Co.)

International Law

Could international law be applied in these types of cases to hold a corporation as a whole liable as a criminal enterprise, and therefore extending criminal liability to its officers without proving personal involvement in specific acts? Several international tribunals do just that.

The Nuremburg Charter provides: “At the trial of any individual member of any group or organisation the Tribunal may declare . . . that the group or organisation of which the individual was a member was a criminal organisation.” This declaration is final and cannot be challenged in subsequent cases against other members of the same organization: “In cases where a group or organisation is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organisation is considered proved and shall not be questioned.”

The Nuremburg Tribunal is not the only international tribunal that can find a group to be a criminal enterprise in this fashion. A recent International Criminal Tribunal for Rwanda (ICTR) ruling could lay the groundwork for the International Criminal Court (ICC) to similarly use the theory of a criminal enterprise to find greater liability for a corporation’s wrongdoing. (The ICTR rulings can have some precedential value for the ICC under the Rome Statute.)

In Edouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, the ICTR found two politicians culpable under a seldom-used theory of liability, whereby the defendants were found guilty for the acts of others, because they participated in a scheme that had a plausible consequence of certain human rights violations. The ICTR found two high-ranking politicians from Rwanda’s 1994 interim government liable for human rights atrocities during the Rwandan genocide, specifically the mass rape, mutilation, and sexual assault of thousands of Tutsi women and girls. There was no evidence that either defendant personally perpetrated rape, mutilation, or sexual assault, or even that either politician ordered such acts to be committed. They were convicted on the grounds of extended liability for joint criminal enterprise. Id.

Under extended liability for joint criminal enterprise, a defendant must be found liable for participating in a “basic” joint criminal enterprise (here, the destruction of the Tutsi people) and significantly contributing therein. The defendant can then be found liable for a crime outside of the purpose of the basic joint criminal enterprise that was committed by another joint criminal enterprise member, so long as it was “foreseeable that the extended crime was a possible consequence of the implementation of the basic [joint criminal enterprise].” A defendant could similarly be found liable for the acts of a non-member of the original joint criminal enterprise if: (1) the non-member has the requisite intent to participate in and significantly contribute to the joint criminal enterprise, (2) it was foreseeable that the non-member would commit the extended crime in the execution of the common purpose of the joint criminal enterprise, and (3) the defendant knew the extended crime was a possible consequence of the implementation of the common purpose of the joint criminal enterprise and he willingly took the risk it would be committed.

Were this same theory to be applied to a corporation, a corporate official could be found liable for participating in such a joint criminal enterprise, such enterprise being the corporation. Therefore, even if a corporation were being prosecuted as a person/entity independent of its officers, as in Unocal, the corporate structure could still be used as a framework around which to build cases against individual officers, specifically in establishing duties to know and act, and knowledge of improper actions.

Moving Forward

International law thus appears to be better suited than U.S. domestic law to finding that a corporation is a criminal enterprise, since Ninth Circuit precedent now blocks RICO from applying in all cases where the bad acts occurred outside of the United States. If a case with facts similar to Unocal did emerge and the corporation therein was declared to be a criminal enterprise under an international tribunal, would this be a move in the right direction? Should the U.S. defer to the jurisdiction of international tribunals in cases like Unocal, making it possible to penalize corporate officers? Could the U.S. defer jurisdiction? How far could this theory go: could all employees of a corporation become criminally liable, regardless of their involvement or personal knowledge of the extent to which the corporation was involved in illegal activities? Is this just?

Marissa Florio is a 2016 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal Online.

By Christopher Mirasola

October was not a good month for China in the South China Sea. The United States Navy sent a guided missile destroyer on a freedom of navigation exercise to assert that artificial islands are not entitled to a 12 nautical mile territorial sea. Despite strong protests from Beijing, the exercise was unsurprising. Washington had been hinting for weeks at a stronger response to China’s maritime claims. Far more surprising was a decision only three days later from the Permanent Court of Arbitration (PCA) in which the Court unanimously decided to hear all fifteen claims against China’s policy in the South China Sea.

Background

In January 2013 the Philippines invoked Article 287 of the U.N. Convention on the Law of the Sea (UNCLOS) to challenge China’s claims to a majority of the South China Sea.

Source: What’s China’s basis of the 9-dash line? Quora https://www.quora.com/Whats-Chinas-basis-of-the-9-dash-line

As stipulated by Article 287, an ad-hoc tribunal at the Permanent Court of Arbitration was convened and invited both parties to submit briefs based on the Philippines’ statement of claim. China, however, refused to recognize the PCA’s authority and opted out of the Court’s formal proceedings. After hearings that closed this past July, the PCA had to decide whether UNCLOS gave it the authority to adjudicate the Philippines’ claims against China.

Broadly speaking, the Philippines has three claims. First, it argues that the nine-dash-line is contrary to UNCLOS provisions, which should be the only basis for maritime sovereignty and jurisdiction. Second, it asserts that a number of contested maritime formations (i.e., reefs) are not entitled to a 200 nautical mile exclusive economic zone or the adjoining continental shelf. Third, it contends that China’s law enforcement and fisheries behavior in the South China Sea is contrary to UNCLOS obligations and interferes with Philippine sovereignty. Of course even if the Philippines won on all these claims, the PCA cannot settle which country is sovereign over islands in the South China Sea. But even if we assume that China has uncontested sovereignty to all properly defined islands, a decision favorable to the Philippines would leave China with far less jurisdiction than it currently claims under the nine-dash line.

Source: Award on Jurisdiction and Admissibility (Phil. v. China), 51 (Per. Ct. Arb. 2015) http://www.pcacases.com/web/sendAttach/1506

The Court’s Decision

We can decompose the PCA’s analysis into three parts.

The arbitration was convened correctly

The Philippines was justified in calling an ad-hoc tribunal since neither country opted for a specific type of dispute resolution when they adopted UNCLOS. The Court also found that China’s non-participation did not impact the PCA’s jurisdiction because Annex VII Art. 9 states that, “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” They also cited ways in which the PCA protected China’s rights, including repeated invitations to comment on procedural steps, advance notice for hearings, transcripts, and an invitation to join formally at any stage. The Court similarly argued that Vietnam’s non-participation didn’t impact the PCA’s jurisdiction despite the fact that it has rival claims to the same region.

The Court’s most stinging rebuke of China’s non-participation, however, was to adopt a weaker standard for whether the Philippines abused process in requesting this arbitration. The PCA defined ‘abuse of process’ as “blatant cases of abuse or harassment” because China did not request a more rigorous test under Article 294. By adopting such a weak standard it was much more likely that the Philippines would win on this particular jurisdictional argument. While we cannot be sure that a more stringent standard would have changed the Court’s decision, China certainly lost an opportunity to more substantially protect its interests.

Past agreements between China and the Philippines do not affect whether the PCA can adjudicate this dispute

The PCA focuses on three agreements signed by both countries: (1) the 2002 Declaration on the Conduct of Parties in the South China Sea (an agreement between all ASEAN countries and China to lessen regional tensions by working towards a joint code of conduct), (2) Joint China/Philippines statements to find a peaceable solution, and (3) the 1976 Treaty of Amity and Cooperation in Southeast Asia (an agreement to settle differences by peaceful and cooperative means). China argued that these documents precluded the Philippines from starting arbitration under Art. 281 and 282. The PCA, however, found that each of these documents (1) didn’t represent a settlement between both parties, (2) didn’t exclude other dispute resolution mechanisms, and (3) don’t require that the parties indefinitely pursue unsuccessful negotiations.

The PCA does not necessarily have definite jurisdiction over all fifteen Philippine claims

And this is where the story gets interesting. The PCA found that it has definite jurisdiction on seven claims, reserved judgment on another seven claims, and asked for clarification on a final claim. In short, it found that seven of the claims presented issues where the jurisdictional and substantive questions were too closely connected to make a preliminary decision.

Implications 

The PCA dealt China a substantial blow in its bid to solidify control within the nine-dash-line, but it is far too early for the Philippines to pop the bubbly. The Court will now hold additional hearings, decide if it has jurisdiction for the seven reserved claims and render a decision. This puts China in a bind if it continues to boycott the proceedings since it will again run the risk of loosing input on pivotal legal questions. More problematic is that China has never articulated a robust legal defense for its historic claims in the South China Sea. There will be less material the judges can use to independently construct a likely Chinese response to Philippine arguments. Without a robust defense, it seems more likely that China’s historic claims may fail to convince the Tribunal.

We must, however, recognize the limits of even this most pro-Philippines scenario. The Court will not resolve territorial disputes to contested islands like Itu Aba (currently garrisoned by Taiwanese forces). It will not resolve boundary conflicts between overlapping Exclusive Economic Zones and territorial seas. Given China’s official pronouncements, it also will not change the ongoing increase in Chinese construction and presence in the short-term.

But we can begin to ask how this decision may start to change the playing field for Southeast Asian countries that dispute China’s claims. Whether it might catalyze more coordination between countries that have been deeply divided about how to balance regional strategic concerns with the reality of economic dependence on Beijing. Though only halfway through this arbitration, we may already be witnessing the start of a much different chapter in the South China Sea.

Christopher Mirasola is a 2017 J.D. candidate at Harvard Law School and an Executive Symposium Editor of the Harvard International Law Journal.

In October, a briefing paper that the UN Office of Drugs and Crime (UNODC) HIV division head was to present at an international conference was released. The briefing paper garnered attention because it advocates decriminalization of drug use and possession for personal consumption. Other UN branches, such as the WHO and UNAIDS, have expressed support for decriminalization in the past. However, this paper came as a surprise because the UNDOC, which leads the fight against illicit drugs and international crime, has been known as the more conservative branch of the UN.

The briefing paper states that harsh drug penalties marginalize people who use drugs for personal consumption, perpetuating poverty and the HIV epidemic. It further points out that international drug control conventions allow “alternatives to conviction or punishment” for drug offenses of a “minor nature.”

In response to media coverage of the briefing paper, a spokesperson for the UNODC clarified that the paper does not reflect the office’s formal policy. However, the spokesperson added that the UNODC is “committed to the balanced approach that . . . promotes alternatives to incarceration in line with international human rights standards.” In June, the UN’s Secretary-General Ban Ki-moon also commented, “We must consider alternatives to criminalization and incarceration of people who use drugs . . . [and] should increase the focus on public health, prevention, treatment and care.”

Several countries provide evidence that decriminalization of minor drug offenses and personal drug consumption can subdue the spread of HIV. Portugal, Iran, and Germany have seen significantly less drug use-related HIV infections after adopting lenient drug laws for minor offenses.

Although the current official policy of the UNODC is to support the strict war on drugs, the UN may be leaning towards a more lenient drug policy in light of its effectiveness in fighting the battle against HIV.

By Jisan Kim

International trade creates opportunities for nations to cooperate for a higher standard of living. Trade agreements facilitate cross-border trade by lowering tariffs and setting rules on a broad range of issues. But trade agreements also serve as instruments for superpower nations to expand their economic and geopolitical influence. And as inevitable participants of this power struggle, middle powers need to consider not only economic concerns but also diplomatic consequences of joining these trade agreements. This article discusses early trade liberalization, various trade agreements, the U.S.-China conflict, and South Korea as an example of a nation caught in the middle of that conflict.

From Multilateral to Bilateral/Plurilateral Agreements

In the early years of trade liberalization, the United States and Europe led the formation of the rules of international trade. Multilateral trade agreements under the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) maintained global trade order. However, WTO negotiations are in an impasse since the Doha Development Round that began in 2001.

As multilateral agreements under the GATT/WTO regime became increasingly difficult to reach, nations started to turn towards bilateral and plurilateral trade agreements. With fewer negotiating parties, bilateral and plurilateral trade agreements with far-reaching clauses could be more readily concluded. These agreements include detailed provisions that not only affect market access but also could potentially shape global rules on a number of non-trade issues, such as environment, labor practices, and state-owned enterprises (SOEs). Given the enhanced geopolitical significance of these trade agreements, foreign and security policies are playing greater roles in states’ decision to pursue trade relations. As a result, trade relationships are becoming more complicated and difficult to balance.

While bilateral and plurilateral trade agreements promote trade liberalization, they could also divide the world into “competing, discriminatory regional trading blocs.” The Regional Comprehensive Economic Partnership (RCEP) and Trans-Pacific Partnership (TPP) exemplify the competition among the major powers to gain more influence in the global economy.

The Power Struggle

On October 5, 12 countries, including the United States, Japan, and Australia, reached an agreement on the TPP, which will account for about 40 percent of the global GDP. The TPP will reduce over 18,000 tariffs and set common standards on issues such as intellectual property, environment, and dispute resolution. Its “open architecture” allows non-party nations to join in the future and gives the TPP a potential of becoming a “de facto template for a new system of rules.”

The United States emphasizes the geopolitical importance of securing a significant bloc of the global trade. President Obama noted, “The TPP means that America will write the rules of the road . . . [and]  if America doesn’t write those rules – then countries like China will.” The U.S. Secretary of Defense also stated that the TPP has a geopolitical significance similar to that of an “aircraft carrier” and will “promote a global order that reflects both our interests and our values.”

The United States hopes that China will be forced into accepting the trade rules set by the TPP. The TPP’s strict regulations on SOEs, environment, labor, and intellectual property would require China to significantly reform its economic and legal structure. Instead of accepting the rules formed by the TPP, China is aggressively pushing for its own economic order through the Asian Infrastructure Investment Bank (AIIB) and the RCEP. The AIIB is considered by the Obama administration as China’s effort to counter the U.S.-oriented World Bank, while the RCEP is a China-led regional agreement that embodies “China’s version of global trade.” If concluded successfully, RCEP would be the world’s largest trading bloc, with 16 member nations including Japan, India, South Korea, and the ASEAN nations.

With the TPP, the Unites States plans to contain China and secure a strong U.S. presence in the Asian Pacific. However, the TPP failed to include a few of the most important players in Asia: India, South Korea, and, of course, China. Without the participation of these major Asia Pacific nations, it will be difficult for the United States to gain a “lasting position of supremacy in China’s backyard.”

Caught in the Middle: South Korea

Among the nations that did not participate in the founding membership of the TPP, South Korea presents an interesting case. In 2014, South Korea was the sixth largest exporter in the world, and recent statistics show that South Korean products account for considerable global market shares: 37 percent in LCD televisions, 33 percent in cellphones, and 9 percent in automobiles.

As an active middle power, South Korea wishes to maintain its longstanding U.S.-Korea alliance and build a China-Korea relationship at the same time. But this balance is difficult to achieve due to the intensifying rivalry between the United States and China. Both the United States and China want South Korea on their sides.

South Korea signed on to the RCEP but is hesitating over joining the TPP. In addition to affecting foreign relations for South Korea, the TPP may benefit some domestic industries but hurt others. This tricky situation puts South Korea in a dilemma.

U.S. Alliance

The Korean peninsula has long been central to the conflict between the United States and China. During the Korean War, the United States defended South Korea while China supported North Korea. South Korea still has a strong military alliance with the United States and is considered as “one of America’s closest allies and greatest friends.”

The United States seeks to maintain influence in the Asia Pacific region through considerable military deployments to Asia Pacific countries including Japan and South Korea. Neighboring North Korea and China, South Korea has a great geopolitical importance in U.S. foreign and security policy. As a signal of such significance, almost 30,000 U.S. troops are stationed in South Korea. But the United States’ involvement does not end with the deployment of its troops. Ever since the Korean War, the United States has had wartime operational control of the South Korean military. If a war breaks out, the United States, not South Korea, will have control of the South Korean troops. Although the wartime operation control was to be returned to South Korea in 2012, it is still yet to be transferred.

With such extensive and somewhat paternalistic U.S. involvement, it will be difficult for South Korea to keep ignoring the pressure from the United States to join the TPP. As Nobel Prize winning economist Thomas Schelling mentioned, “Trade is what most of international relations are about. For that reason trade policy is national security policy.”

Future military involvement by the United States is a subject of a heated debate in South Korea, the outcome of which may affect Korea’s trade and foreign policy. Liberals argue for less reliance on the United States, while conservatives oppose such change. If South Korea decides to remain dependent on U.S. military’s support, joining the TPP will help strengthen the U.S.-Korea alliance. If South Korea chooses to rely less on the U.S. military, RCEP could be more valuable than the TPP in terms of regional security. Absent U.S. troops, South Korea may not be able to maintain stability within the peninsula without the help of China, which has the power to keep North Korea in check. A close economic relationship with China through the RCEP and China-Korea Free Trade Agreement (FTA) may help secure that support from China.

China Relations

Because China is South Korea’s largest trading partner as well as Asia’s most powerful nation, Seoul has much to lose if it distances itself from Beijing. Especially with China leading the RCEP and AIIB, South Korea may face economic and geopolitical disadvantages if it does not actively participate. Accordingly, South Korea was recently busy pursuing a closer relationship with China through the China-Korea FTA, AIIB, and the RCEP. Commentators noted that South Korea might have refrained from joining the TPP in furtherance of this pursuit. In the past, China-Korea relations used to be described as “cold in politics, hot in economics,” but it is now being labeled as “hot in politics, hot in economics.”

But despite positive developments with China, it is unclear whether South Korea will be able to strike the right balance between the United States and China. The United States remains a close ally of South Korea, and China is disdainful of that relationship. China has viewed the U.S.-Korea alliance as “a remnant of the Cold War system” and “a regional security threat.” Hoping to relieve this tension, South Korea recently proposed the Northeast Asia Peace and Cooperative Initiative (NAPCI).

Additional Considerations

Because South Korea already has FTAs with 10 of the 12 members of the TPP, Korean policymakers had thought that the TPP would be redundant and provide no significant geopolitical benefits. In light of the recently revealed full text of the TPP, some commentators argue that South Korea should join while others are hesitant.

The TPP will result in lower trade barriers in several major industries compared to the current FTAs between South Korea and the TPP members. Especially with Japan as a TPP member, South Korea’s electronics and automobile industry may lose competitiveness if South Korea does not join. But a lower trade barrier in the agriculture industry could be detrimental for South Korea. By not participating in the drafting of the TPP, South Korea lost the opportunity to negotiate favorable terms into the agreement.

Private interests will likely influence South Korea’s decision to join the TPP. The TPP is predicted to have disparate consequences for different industries in South Korea. On the one hand, the agriculture and fishery industry as well as state-owned companies will face disadvantages if South Korea joins. On the other hand, the electronics sector will benefit from the TPP because the agreement significantly lowers tariffs on electronics.

In South Korea, chaebols, family-controlled Korean conglomerates such as Samsung and LG, dominate the economy. The ten largest chaebols accounted for nearly 80 percent of South Korea’s GDP in 2011. Samsung alone accounted for 28 percent. As a result, chaebols have great political influence. Because chaebols operate businesses largely in the electronics sector and much less in the agricultural industry, they will likely favor joining the TPP. The South Korean government is not only vulnerable to chaebols’ influence, but it also cannot afford to let chaebols, breadwinners of the South Korean economy, be disadvantaged in the international market.

South Korea must carefully assess the economic and geopolitical consequences of joining trade partnerships. In attempting to accommodate the wishes of both the United States and China, South Korea may end up weakening relations with both countries. It is a difficult situation. And in the midst of the U.S.-China conflict, South Korea is only one example of the many nations that will have to balance various interests in navigating the complicated global trade relations.

Jisan Kim is a 2017 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal Online.

Classical diplomatic protection has historically ignored the individual as a subject of public international law. This legal fiction, allowing the state to make a claim in the person of its nationals, replaces the individual’s right to claim remedies or indemnities for damage sustained as a result of human rights violations. Diplomatic protection could and should be redefined so as to incorporate the protection of individual rights. This complementary approach, recognizing the interdependence of individual and state rights, is already underway in the case law of the International Court of Justice and the work of the International Law Commission.

Read full article (PDF).

By Lindsay Church

The freedom of expression is the cornerstone of a functioning democracy. Journalists monitor the government and share information so that citizens can be informed and participate in the democratic process. This essential right of free speech, however, must be balanced with national security interests—an especially complex task in the face of grievous terrorism threats. Though Ethiopia has signaled its desire to comply with international guarantees, over current President Teshome’s administration the country’s leaders have nonetheless exploited counterterrorism policies to silence political dissidents. This disconnect between promise and practice demonstrates the omnipresent problem of international law: it is difficult to ensure actual implementation and enforcement of international obligations.

International Governance of the Freedom of Expression

International and regional regimes have established mechanisms to complement national protections of the freedom of expression. The Universal Declaration on Human Rights (UDHR) was the first international instrument to shift focus from state sovereignty to the individual as the beneficiary of rights. While the UDHR does not have the binding legal force of a treaty, it sets forth prominent standards through which the international community can review compliance. The International Covenant on Civil and Political Rights (ICCPR) later brought binding force to the idealistic principles articulated in the UDHR. The right to freedom of expression is addressed in article 19:

1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For the respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

The text of the ICCPR leaves much room for disagreement among parties as to the proper interpretation of the right to freedom of expression. To alleviate the problem of conflicting meanings, the Human Rights Committee issued the highly authoritative, though not legally binding, General Comment No. 34. In this comment, the Committee highlighted the importance of the freedom of expression and emphasized the legal obligations of states parties. It also made policy recommendations related to the balance of freedom of expression and terrorism that states parties should adopt to more effectively implement their ICCPR obligations:

States parties should ensure that counter-terrorism measures are compatible with paragraph 3. Such offences as “encouragement of terrorism” and “extremist activity” as well as offences of “praising,” “glorifying,” or “justifying” terrorism should be clearly defined to ensure that they do not lead to unnecessary or disproportionate interference with freedom of expression. Excessive restrictions on access to information must also be avoided. The media plays a crucial role in informing the public about acts of terrorism and its capacity to operate should not be unduly restricted. In this regard, journalists should not be penalized for carrying out their legitimate activities.

In theory, Ethiopia should comply with these obligations; in reality, however, their enforcement of domestic law directly opposes these commitments.

Freedom of Expression: The Semblance of Free Speech and the Harsh Reality

Ethiopia has a legal framework that prima facie appears to cultivate the freedom of expression—it has ratified major international and regional treaties that guarantee free speech, adopted a constitution that prioritizes civil rights, including the right to freedom of expression, and passed national legislation designed to protect the media. Notwithstanding these measures, journalists critical of the government have been dealt severe civil and criminal sanctions. These punishments are usually imposed within the bounds of domestic law.

Ethiopia’s Anti-Terrorism Proclamation proves especially worrisome. Ethiopian People’s Revolutionary Democratic Front (EPRDF) leaders have credited other nations like the United States and England as inspiration for the law. The Proclamation’s provisions, however, are vague and expansive. Article 5 prohibits rendering support to terrorism, and sub-article (b) specifically bands “provid[ing] a skill, expertise or moral support or giv[ing] advice.” Moreover, article 6 criminalizes “encouragement of terrorism”:

Whosoever publishes or causes the publication of a statement that is likely to be understood by some or all of the members of the public to who it is published as a direct or indirect encouragement or other inducement to them to the commission or preparation or instigation of an act of terrorism stipulated under Article 3 of this Proclamation is punishable with rigorous imprisonment from 10 to 20 years.

Since the law’s adoption in 2009, several journalists have been targeted with trumped-up charges of terrorism. One of the most prominent cases involves Eskinder Nega, who days before his arrest published an online article that condemned the EPRDF for exploiting counterterrorism laws to punish critical voices. Nega was accused of conspiring with a terrorist group, Ginbot 7, to overthrow the government and also receiving weapons and explosives from Eritrea to commit terrorist acts in Ethiopia. Despite the State’s egregiously lackluster case against him, Nega was found guilty and sentenced to eighteen years in prison. In another case, three journalists and six bloggers—collectively known as the Zone 9 bloggers—were accused of working with Ginbot 7 shortly after a Facebook post announcing their return to journalism. Their trials were afflicted with delays and corruption. Five were released earlier this year, and the four others remain behind bars. And in 2011, during the course of investigating human rights violations occurring in the Ogaden oilfields by Ethiopian troops, two freelance journalists from Sweden—Martin Schibbye and Johan Persson—crossed the border from Somalia to Ethiopia without the requisite visas. They were arrested and sentenced to eleven years in prison for entering the country illegally and supporting the Ogaden National Liberation Front (ONLF), a rebel unit that has been designated as a terrorist group. After serving 438 days, the pair was pardoned by Prime Minister Meles Zenawi before his death.

These national laws are being utilized to undercut the right to freedom of expression, violating international standards. The consequences of this are many: the government retains undue influence over the information disseminated within its borders; high-ranking officials can abuse their powers without fear of exposure; the controlling political party faces no real political competition; and journalists and political dissidents are arbitrarily detained and deprived of other fundamental rights.

Moving Forward 

Ethiopia’s legal framework—both in text and in practice—violates internationally recognized standards regarding the freedom of expression. Ethiopia’s Anti-Terrorism Proclamation in particular has garnered international concern for its vague provisions and targeted use toward journalists and political dissidents. EPRDF leaders have refuted criticisms, attributing the Proclamation’s provisions to anti-terrorism laws from many states that denounce the law. It is imperative that States comply with their commitments to increase respect for the freedom of expression in the international community. Ethiopia’s lack of compliance raises questions about the effectiveness of international laws and treaties more broadly: why do we allow signatories to flagrantly disregard their commitments? How could these standards be better enforced while still allowing states the autonomy to effectively implement counter-terrorism policies?

Lindsay Church is a third-year student at Harvard Law School. She was a Human Rights Fellow at the Media Legal Defence Initiative in London, and conducted research on the effect of antiterrorism policies on free speech while a visiting student at the University of Oxford’s Programme in Comparative Media Law & Policy.

By Christopher Mirasola

June 8, 1708. It is almost eight years after King Louis XIV installed his grandson Philip on the Spanish throne and Europe is only halfway through the War of Spanish Succession, a conflict pitting the English, Dutch, and Austrians against Louis XIV and Philip. Sixteen miles off the coast of Cartagena (a port city in present-day Colombia) Commodore Charles Wager pursues and sinks the San José, a Spanish galleon with a 600-person crew that is ferrying the gold, silver, and jewels Spain and France need to fund their war effort. Most of San José’s crew die in this battle and the ship’s cargo, estimated to currently value $4 to $17 billion, is lost.

December 5, 2015. Colombian President Juan Santos declares that the San José was discovered in an undisclosed location and announces plans for a museum to display its cargo, touching off a new international dispute. Sea Search Armada (SSA), an American salvage company that had previously entered into an agreement, later renounced by Colombia, to split any recoverable cargo, reiterates its claim to the San José. Days later the Spanish Foreign Minister declares that Spain retains sovereign rights to the San José and pledges to ‘”defend[] our interests.”

All of which begs the question: 307 years after the ship was destroyed, who now owns the San José? Notwithstanding Colombian legislation, an analysis of relevant treaties and state practice shows that Spain has the better claim since sunken warships remain the property of the flag State. I focus on the dispute between Colombia and Spain because SSA’s case is based on its contract with Colombia, which depends on whether Colombia has ownership over the ship in the first place.

The Colombian Perspective

In 2013 President Santos signed legislation declaring that any culturally important manmade objects (including sunken ships) submerged in waters under Colombian jurisdiction are Colombian property. This law was in fact designed to assert ownership over Spanish wrecks like the San José given Colombia’s colonial history as a source of the empire’s gold, silver, and jewels. This domestic legislation, however, contradicts an emerging consensus in customary international law.

An Emerging Consensus in International Law

Usually we would begin our analysis by looking at relevant treaties. However, neither the United Nations Convention on the Law of the Sea (UNCLOS) nor the Convention on the Protection of Underwater Cultural Heritage (UNESCO Convention) is particularly informative. Under UNCLOS Article 149, sunken cultural objects should be preserved “for the benefit of all mankind” while “preferential rights” are reserved for “the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin.” When applying this provision in this case, just about any successor country to Spain’s South American Empire could claim preferential rights. Article 303 is no more useful, stating generally that the rights of “identifiable owners” should be preserved. Similarly, the UNESCO Convention does not define a State’s rights to non-commercial vessels or aircraft. Article 7, however, does seem to favor the rights of coastal States by saying that they only “should” inform the flag State before excavating a wreck. Even this provision, however, is not useful for the San José because Colombia is not a signatory to UNCLOS or the UNESCO Convention. Instead, we must look to what is required in customary international law (obligations created by a consistent pattern of State action that is followed due to a sense of legal obligation). Since only 51 countries have ratified the UNESCO Convention (notably excluding the United States, United Kingdom, Russia, Japan and other important maritime powers), we cannot say that its provisions should be considered as part of customary international law.

Scholars have shown, however, a consistent pattern of countries requiring the consent of flag States before disturbing their sunken warships irrespective of where these ships are found. A report from the Institute of International Law, for example, identified 16 case studies concerning ownership of sunken warships. In 11 cases the parties agreed that the country originally owning the warship retained its rights despite the fact that it was located in waters under another country’s jurisdiction. The other cases, while differing in details, suggest a similar respect for flag State rights. For example, in two of the five remaining cases the countries formally agreed that the coastal State must report any intended activity implicating the sunken ship. In another case Germany and France did not address ownership and instead agreed to not excavate the sunken warship at all. Even the CIA’s covert recovery of a sunken Soviet ship (the Glomar Explorer) without the USSR’s permission suggests that the United States had misgivings about legality of not informing a flag State. Only a 1976 case in which the Florida District Court granted a private salvage company rights to a Spanish galleon contradicts this consensus. Even this case, however, is no longer useful in revealing State practice since, in 2001, the United States Supreme Court ruled that another salvage company could not claim two Spanish galleons it found off the Virginia coast.

Furthermore, France, Germany, Japan, Russia, Spain, the United Kingdom, and the United States have all officially stated that flag States can only lose sovereignty over sunken warships by specifically and formally relinquishing ownership. This past summer, the Institute of International Law recommended that States codify this understanding of customary international law in a draft convention stating that “sunken State ships are immune from the jurisdiction of any State other than the flag State.” A number of noted maritime law scholars, including J. Ashley Roach, Mariano Aznar-Gómez, Jason Harris, and Miguel Garcia-Revillo and Miguel Zamora, concur that warships remain under the exclusive jurisdiction of the flag State. This legal obligation is supported by the traditional respect given to the graves of fallen sailors. As almost all of the San José’s 600 crew died during Wager’s attack, Colombia has a special obligation to respect this site as a Spanish war grave.

What to do with the San José’s cargo

While customary international law is relatively clear in granting Spanish ownership to the San José, it is less certain about what should be done with its cargo. In the past, for example, Peru claimed “patrimonial” ownership of cargo found on the Spanish galleon Mercedes. A similar argument is made today regarding the San José’s cargo as much of it was forcefully extracted from the Incas in what is modern-day Peru. Another Peruvian newspaper contends that modern-day Spain is not the sole successor to the Catholic monarchy’s South American Empire and therefore should not be the only owner of the San José’s cargo. Indeed, the Institute of International Law’s draft convention would allow for such a division in property rights between the ship and its cargo. By the same token, however, the draft convention asserts that even if the cargo is not property of the flag State, it cannot be removed without the flag State’s permission. Additionally, the United States Court of Appeals ruled in the Mercedes case that, notwithstanding Peru’s claim of patrimonial entitlement, respect for Spain’s sovereign immunity over the ship required that its cargo also be considered Spanish.

Notwithstanding this disagreement, there is substantial room for a cooperative solution that respects Colombian and Peruvian interests while adhering to international law. Such an agreement would have to stipulate Spanish ownership over the San José and likely preserve much of the wreck untouched as a war grave. Spain will likely be unwilling to agree with Colombia’s plan to create a museum housing the San José’s cargo since underwater preservation is best to prevent sunken artifacts from degrading. However, both sides could agree to create a historical preservation zone around the wreck under Colombian jurisdiction either in perpetuity or under a long-term lease. France and the United States, for example, came to similar agreements for wrecks discovered off the coasts of both countries.

Nearly 600 people died over 300 years ago to protect the San José and support Spain’s far-flung empire. Today, it is the international community’s duty to reach an agreement that respects the lives of those sailors, the San José’s shared history, and established international law.

Christopher Mirasola is a 2018 J.D./M.P.P. candidate at Harvard Law School and Harvard Kennedy School. He is an Executive Symposium Editor of the Harvard International Law Journal.

5:30 – 7:30 pm ⬩ The Pub, WCC
Reception.
Appetizers and drinks will be served.

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The Committee:

Christopher Mirasola, Executive Editor, JD/MPP ’18
Marissa Yu, Executive Editor, JD ’17
Milana Karayanidi, LLM ’16
Alessandra La Vaccara, LLM ’16
Rebecca Rattner, JD ’17
Lara Townzen, JD ’18
Caroline Wilson, JD ’17

By Josh Macfarlane

Tango 01—Argentina’s equivalent to Air Force One—hasn’t gotten much air time recently. The plane was grounded in 2013 by the country’s former President Cristina Kirchner, who was allegedly afraid that foreign creditors would seize the jet. Ms. Kirchner’s fears were not unfounded, considering the country twice defaulted on its sovereign debt repayments and had previously failed to settle with the holdout creditors. The turbulence over the Tango 01 is one of the many consequences of Argentina’s prolonged debt crisis, a hallmark of Ms. Kirchner’s presidency. Finally, earlier this year, Tango 01 was retired by President Mauricio Macri, Ms. Kirchner’s successor, who eschewed Ms. Kirchner’s intransigence in dealing with foreign holdouts in favor of a more conciliatory approach. This change of tact has largely paid off. But considering it has taken 15 years to resolve, one must ask: Could this mess not have been sorted out earlier? Maybe, had Argentina’s bonds included a novel contract provision known as a Collective Action Clause (CAC).

CACs are increasingly lauded as the ex-ante remedy to sovereigns on the precipice of default, as they facilitate meaningful debt restructuring. They are essentially contractual provisions that allow bond issuers to subsequently modify key terms of the bond, most commonly in the form of “haircuts,” which are reductions in the bond’s original value. Assuming a supermajority of bondholders agrees to the modified terms (because something is better than nothing), they become binding on all bondholders. This overcomes the holdout problem where one recalcitrant bondholder is free to reject new terms and demand repayment in full (plus interest). In the case of Argentina’s bonds (which, notably, did not include a CAC), a U.S. federal judge ruled that the country could not pay interest on the restructured bonds until it settled with the holdouts; Ms. Kirchner’s failure to do so led to perpetuating default. (Note: Argentina’s bonds were issued under New York law, hence U.S. jurisdiction.) This legal precedent not only hurts the sovereign debtor by excluding it from international capital markets, but it also harms the supermajority of creditors who are enjoined from collecting interest and principal payments on their bonds. CACs are of particular importance in the aftermath of this ruling, as in their absence, a single bondholder can wreak even greater hardship on debtors and fellow creditors.

The world has taken note as Argentina, Greece, and other countries defaulted on bond payments with disastrous consequences. CACs have readily been adopted as the preventative remedy, becoming must-have provisions in sovereign debt offerings. Mexico was an early harbinger when, in 2003, it included an early CAC iteration in its sovereign bond offering. More recently, the EU mandated in 2012 that all Eurozone sovereign bonds must include standardized CAC provisions, lest the leaders of Europe be forced to fly commercial like Ms. Kirchner.

So, are CACs the panacea that debtors and creditors have been waiting for? Not necessarily. For debtors, CACs only offer a prospective benefit as they cannot be introduced retroactively. Hence, sovereigns with outstanding issuances remain liable to potential holdouts, as with Argentina. In future bond offerings, where CACs can be included, debtors on the verge of default must nevertheless persuade a supermajority of bondholders to assent to the restructured terms. This poses substantive and logistical problems. First, haircuts can’t be too drastic otherwise creditors will not agree to them. Second, bonds are issued across borders and in different currencies, which can create communication problems – apathetic bondholders may simply not reply to a foreign debtor’s solicitations. In such instances, bondholder silence could be misconstrued by the debtor as a demurral, which might result in the debtor either ignoring these bondholders or considering them to be holdouts and offering them unnecessarily favorable terms.

As for bondholders, some undeniably feel that that CACs swing the pendulum too far in the opposite direction, stripping them of their right to demand payment in full and, assuming supermajority approval, foisting new terms on them. One might expect this to be offset by higher bond yields because of the heighted risk that creditors assume; however, empirical evidence suggests otherwise. Other creditors, notably those who already agreed to the restructured terms, will be pleased that fellow bondholders cannot secure a better deal by simply digging in their heels. Look at Argentina, where the absence of a CAC resulted in restructuring creditors incurring haircuts of around 70%, compared to the holdouts’ 25%. Also, bondholders who are citizens of the issuing sovereign, and who are normally more inclined to agree to haircuts, like that CACs prevent (typically foreign) holdouts from dragging their country into default.

While CACs are not perfect, they provide the best solution in the absence of international law governing defaults (a much talked about topic, but a seemingly impossible endeavor). Granted, CACs are utilitarian in nature, and the greater good seems to be allowing a country to restructure its debt (subject to supermajority approval) by depriving would-be holdouts the ability to derail the process and instigate economic turmoil. Moreover, CACs enable sovereigns to retain more autonomy in their debt restructurings, making them less reliant on the International Monetary Fund – which often offers bailout funds in exchange for the adoption of damaging austerity measures.

Expect CACs to continue growing in popularity until they became familiar provisions in sovereign debt offerings. Perhaps Mr. Macri’s successors will be able to bring Tango 01 out of retirement, but in the meantime, he’s flying coach.

Josh Macfarlane is a 2017 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal Online.

By Marissa Florio

On March 20, 2016, President Obama became the first sitting United States President to visit Cuba in 88 years. Over the last few years of his presidency, he has promoted a thaw in relations with Cuba, beginning with an announcement on December 17, 2014 that diplomatic relations would be restored. These developing relations have directly led to changes in international laws and regulations between the two nations.

Since the early 1960s, the United States and Cuba have had severed economic and diplomatic relations. The U.S. imposed a trade embargo on Cuba, the U.S. embassy in Havana closed, and Cuba was designated as a “state sponsor of terrorism” by the U.S. State Department. With the presidency of Barack Obama, tensions have cooled and relationships are being rebuilt. In 2015, the embassy reopened, and the “state sponsor of terrorism” designation was removed after a finding that there was “no evidence that the country provided training or weapons to terrorist groups.” In 2016, President Obama has called for Congress to lift the embargo.

I recently traveled to Cuba on a people-to-people educational program, one of the twelve categories of travel activities that allow Americans to enter Cuba while the embargo is in place. My trip was organized through Cuba Candela and comprised of nearly 140 Harvard students. While I was in Cuba, changes were happening in real time in U.S.-Cuba relations. On March 15, it was announced that individual people-to-people educational trips would be permitted; no longer do travelers need to organize their trip through a “sponsoring organization subject to U.S. jurisdiction.” On March 16, direct mail service resumed between the two countries. On March 17, the Cuban government eliminated the 10% penalty on conversions of the U.S. dollar. On March 21, President Obama and President Castro held a joint press conference where they elaborated upon the progress being made in relations.

As Cuba and the United States come together for discussions and open their doors to each other once again, there are major implications in international affairs, international law, and domestic law.

First, a number of bilateral agreements are being signed between President Obama and President Castro on numerous topics: counternarcotics, commerce, travel, and health. While the conversations on these topics are sure to be fruitful in getting both nations on the same page, any formal agreement must be taken with a gain of salt after President Castro’s statement on international instruments during his joint press conference with President Obama:

“There are 61 international instruments recognized. How many countries in the world comply with all the human rights and civil rights that have been included in these 61 instruments? What country complies with them all? Do you know how many? I do. None. None, whatsoever. Some countries comply some rights; others comply others. And we are among these countries. Out of these 61 instruments, Cuba has complied with 47 of these human rights instruments. There are countries that may comply with more, there’s those that comply with less.”

From this statement, President Castro does not appear to feel lawfully bound to abide by international instruments. Therefore, coming to agreements and making active efforts is likely to be more effective than, for example, signing theoretical documents on environmentalism. For more important agreements, the U.S. might want to ensure there is some sort of enforcement authority to ensure both parties abide by their promises.

Second, as economic barriers imposed by the U.S. are lessened, more money will flow freely into Cuba. Cubans can now open American bank accounts, and U.S. dollars can be converted into Cuban Convertible Pesos (CUCs; Cuba’s primary currency for tourism) without a 10% penalty. Obama traveled to Cuba along with “some of America’s top business leaders and entrepreneurs,” who have an interest in expanding to Cuba. As American business enters the Cuban economic system, Cuban domestic law will need to change in accordance. Only recently did Cuba begin allowing its people to buy and sell houses, and the opening of private businesses such as restaurants is also a new and relatively rare concept in the socialist state. More privatization and capitalistic components will likely become the norm in Cuba’s economy as the country is opened up to the world.

Third, Internet use will be opened up in Cuba. Internet access in Cuba is limited, and even where there is access there is content restrictions. While I was there, I attempted to log onto “Canvas,” the online platform where Harvard Law School course materials are posted. Upon logging in, I received an error message: “You are not authorized to access this site because you are located in a country subject to U.S. trade restrictions.” I learned that local Cubans access modern music, news, and movies by sharing USB drives that have information downloaded on them, called “paquetes.” While the local people are very entrepreneurial and are able to access information in roundabout ways, stronger ties with the U.S. will likely allow Internet access to become more widespread and more open. President Obama is encouraging this: “[W]e have said that it is no longer a restriction on U.S. companies to invest in helping to build Internet and broadband infrastructure inside of Cuba. It is not against U.S. law, as it’s been interpreted by the administration.” The phrasing here by President Obama is interesting: it seems as though it had previously been taken as against the law but a new interpretation has removed that restriction. Additional review of the interpretation of domestic laws might assist the growth in international affairs.

The relationship between Cuba and the United States is growing after a 50-year hiatus, and legal scholars will have much to write on how this relationship comes to affect international law, Cuban domestic law, and American domestic law in the months and years to come.

Marissa Florio is a 2016 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal Online.

Articles:

Global Emergency Power in the Age of Ebola
By: J. Benton Heath

Judicial Lawmaking and General Principles of Law in International Criminal Law
By: Neha Jain

The Challenge of Legitimacy in Sovereign Debt Restructuring
By: Odette Lienau

International Law Constraints as Executive Power
By: Rebecca Ingber

Student Note:

Limiting the Scope of the Foreign Sovereign Immunities Act after Zivotofsky II
By: Amanda Tuninetti

Interview

The Court and the World: An Interview with Associate Justice Stephen G. Breyer
By: Daniel Severson

By Jisan Kim

This year, the Asian Infrastructure Investment Bank (AIIB) will officially initiate its operations with $100 billion of capital. The AIIB aims to fund much-needed basic infrastructure projects in Asia, and it seeks to differentiate itself from existing multilateral development banks (MDBs) like the World Bank by not requiring privatization or deregulation as conditions for funding.

Some experts project that the AIIB will merely be a “symbolic institution with no real significance for the global financial system.” However, China has brought on board major U.S. allies, including France and the United Kingdom, as founding members of the new Bank. On the other hand, the United States and Japan, the largest shareholders of the World Bank and the Asian Development Bank respectively, declined to join the AIIB. The two countries likely view the new China-led Bank as “a lending rival that will reduce [their] leverage,” and they do not want to grant more power and credibility to the AIIB by joining it.

Even without the United States and Japan as members, the AIIB will have a significant impact on Asia and the world. However, whether that impact will be positive or negative is under debate. Although the AIIB will help fill the “massive infrastructure funding gap” in Asia, it may fund projects that do not meet the high international standards enforced by existing MDBs. If the AIIB does not operate under adequate standards, its projects may have negative consequences in many areas, including environment protection, human rights, and labor rights. China claims that the AIIB “will be rigorous in adopting the best practices of institutions such as the World Bank.” But critics are wary of this claim, given China’s track record with international standards.

No one can be certain until the new Bank decides which projects it will fund, but an assessment of the AIIB’s Operational Policies may shed some light on the direction toward which the AIIB is headed. Because the structure and function of the AIIB is similar to that of the International Finance Corporation (IFC), the private sector arm of the World Bank, the IFC Performance Standards on Environmental and Social Sustainability (IFC Standards) are the appropriate benchmark to evaluate the adequacy of the AIIB Environmental and Social Standards (AIIB Standards). Many parts of the AIIB Operational Policies mirror the text of the IFC Standards. But notable differences exist, and they may lead to distinct outcomes in practice. This feature will discuss some of the provisions pertaining to environmental and labor issues.

I.  Environmental Standards

Many environmental provisions of the AIIB Standards are on par with that of the IFC Standards. For instance, in its pollution prevention section, the AIIB cites the World Bank Group’s Environmental, Health and Safety Guidelines (EHSGs) and ensures that its projects will follow the EHSGs. The AIIB in some areas (e.g. commercial logging operations) adopted “more progressive positions” than some of the other multilateral development banks. However, in other areas, AIIB Standards lack detail or are different in ways that may lead to arbitrary outcomes. The following are a few examples.

The IFC provides a detailed explanation on how adverse effects on the environment should be mitigated. Concepts such as “no net loss of biodiversity” and “set-asides” make the guidelines more specific and clear. On the other hand, the AIIB leaves out such details and simply requires “measures acceptable to the Bank.” Under this standard, if the AIIB is not rigorous in its evaluation of mitigation measures, recipients of funding may be able to get away with implementing measures that are superficial, cheap, and ineffective.

For projects in natural habitats, the AIIB requires a cost-benefit analysis whereas the IFC has no such requirement. Because the IFC does not have this requirement, the IFC may allow projects even if the overall benefit does not “substantially outweigh” environmental costs. However, cost-benefit analysis will not always lead to wise decisions. For example, the AIIB may allow projects that significantly destroy natural habitats by concluding that the overall benefit is higher than the cost. Also, because it is unclear how the AIIB will conduct cost-benefit analyses, the ultimate decision could be arbitrary. The cost-benefit analysis might be used to justify or defend AIIB’s decisions to value economic gain over environmental protection.

When critical habitats are involved, the IFC considers a project’s impact on “biodiversity values for which the critical habitat was designated” and the “ecological processes” supporting those values, whereas the AIIB focuses on the habitat’s “ability to function.” The IFC would not allow a project that would destroy biodiversity values, even if the habitat were able to function. On the other hand, the AIIB may allow a project by determining that a habitat may be able to function even if many of its biodiversity values are lost.

II.  Labor Standards

The Core Labor Standards (CLS), which refer to a group of eight fundamental labor conventions, are regarded as the “international consensus on minimum best practices.” The CLS covers four general rights and principles of labor: child labor, forced labor, freedom of association and collective bargaining, and discrimination in employment and occupation. This feature will proceed to look at how the AIIB and IFC treat the four general issues of labor.

A. Child Labor

The Minimum Age Convention and the Worst Forms of Child Labour Convention (Worst Forms Convention) are the two “basic child labour Conventions” of the International Labor Organization (ILO). And complementing the two Conventions, the United Nations Convention on the Rights of the Child (UNCRC) “lays down a full range of children’s rights.”

The IFC Standards cover issues raised in all three of the instruments mentioned above. The opening sentence of the child labor section closely mirrors the language of Article 32 of the UNCRC:

“The client will not employ children in any manner that is economically exploitative, or is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral, or social development.” (para. 21, IFC Standards)

The following two IFC clauses on hazardous work incorporate language from the Worst Forms Convention and its supplemental Recommendation No. 190:

“Children under the age of 18 will not be employed in hazardous work.” (para. 21, IFC Standards)

“Examples of hazardous work activities include work (i) with exposure to physical, psychological, or sexual abuse; (ii) underground, underwater, working at heights, or in confined spaces; (iii) with dangerous machinery, equipment, or tools, or involving handling of heavy loads; (iv) in unhealthy environments exposing the worker to hazardous substances, agents, processes, temperatures, noise, or vibration damaging to health; or (v) under difficult conditions such as long hours, late night, or confinement by employer.” (n. 12, IFC Standards)

Unlike the IFC Standards described above, the AIIB Standards seem to be focused on only the Minimum Age Convention:

“[I]n conformity with the International Labour Organization’s Minimum Age Convention, 1973, [] children at least 16 years of age may be employed for such work on condition that their health, safety and morals are fully protected” (sec. D, AIIB Standards).

The Worst Forms Convention and the UNCRC do not appear in the AIIB Standards. The two Conventions may seem superfluous, but they each play an important role.

Several scholars have voiced concern that the Minimum Age Convention, standing alone, may fail to achieve its objective. The Minimum Age Convention requires that specific industries, such as mining and electricity, should be regulated as a minimum. If only some industries are regulated, the supply of child labor could move into other unregulated sectors. The Worst Forms Convention does not have this loophole because it lists the types of hazardous work that should be prohibited, regardless of industry.

Although the two Conventions together seem to grant full protection, another loophole still exists. Children between the age of 16 to 18 will be allowed to work as long as their “health, safety and morals . . . are fully protected” (Minimum Age Convention) and the work is not categorized as “worst forms of child labor” (Worst Forms Convention). Without the protection offered by the UNCRC, these children are simply treated as “regular workers” under the two ILO Conventions. But because the IFC Standards incorporate language from the UNCRC, the IFC additionally protects the “education” and “health or physical, mental, spiritual, moral, or social development” (UNCRC) of these child workers. The AIIB Standards, on the other hand, offers no such protection.

The IFC, by embracing all three Conventions, provides a stronger protection for children than does the AIIB.

B. Forced Labor

The AIIB provides the same level of protection as the IFC when it comes to forced labor. The AIIB explicitly prohibits forced labor, which it defines as “work or service not voluntarily performed that is exacted from an individual under threat of force or penalty.” This language is similar to the IFC Standards on the subject. Additional details are substantially the same as well.

C. Freedom of Association and Collective Bargaining

As for collective bargaining, the AIIB requires that clients adhere only to national laws in the countries where they operate, while the IFC attempts to offer further protection. When “national law substantially restricts workers’ organizations,” the IFC prohibits employers from “[restricting] workers from developing alternative mechanisms to . . . protect their rights” and “[influencing] or [controlling] these mechanisms.” IFC also protects participants in workers’ organizations from discrimination, retaliation, or discouragement by employers.

The AIIB, however, urges clients only to “[comply] with national law relating to workers’ organizations and collective bargaining” and does not attempt to provide any further protection on this matter.

D. Discrimination

The AIIB’s provision against discrimination is limited: employers should ensure, “consistent with relevant national law, employment on the basis of the principle of equal opportunity, fair treatment and non-discrimination.” The AIIB does not provide any additional detail or explanation.

The IFC Standards, on the other hand, includes important details in addition to enumerating the basic principles of equal opportunity, fair treatment, and non-discrimination. The IFC prohibits “employment decisions on the basis of personal characteristics (Such as gender, race, nationality, ethnic, social and indigenous origin, religion or belief, disability, age, or sexual orientation)” and “harassment, intimidation, and/or exploitation.” The IFC Standards also emphasizes that women and migrant workers should be well-protected.

E. Additional Considerations

While the IFC’s labor standards cover both the public and private sector, the AIIB Standards do not offer protection of many important rights—including prompt payment, access to grievance mechanisms, equal opportunity, fair treatment, and non-discrimination—to public sector workers. In the third paragraph of Section D, the AIIB Standards requires employers to protect those rights only for “private sector Projects.”

The IFC, unlike the AIIB, provides additional protection regarding retrenchment and compensation. IFC demands “retrenchment [] based on the principle of non-discrimination and will reflect the client’s consultation with workers” and insists the payment of any outstanding back pay or benefits. The AIIB, mostly silent on this matter, mandates only a “timely” notice of termination.

The AIIB follows many of the high standards set by the IFC and other international organizations. However, in several important areas, AIIB Standards do not offer sufficient environmental and social protection. These shortcomings could become more problematic if coupled with ineffective implementation.

III.  Implementation and Oversight

The recently elected President of the AIIB promised that the new Bank would be “lean, green, and clean.” Although a lean bank will reduce costs, it may have trouble operating effectively. Without “a resident staff involved in the day-to-day project oversight,” some critics doubt that the new Bank would be able to successfully enforce high standards.

In order to implement its labor standards, the IFC went through an intensive implementation process: hiring labor experts, establishing a Labor Advisory Group, providing specific training for thousands of staff, and conducting comprehensive labor audits and internal reviews. In fact, IFC is considered to have “one of the most comprehensive procedural frameworks” for implementing labor standards. But even with such effort, the IFC was not aware of violations in some on-going projects until other organizations reported them.

The ILO emphasizes that “legal prohibition, essential though it is, will not by itself suffice.” Especially in regulating child labor, inadequate implementation and oversight may lead to disastrous consequences. Prohibiting child labor may “[foster] illegal and hidden forms of [child] employment.” And without proper oversight, child labor will proliferate in the shadows. The AIIB must ensure that its operations are not only “lean” but also effective in protecting fundamental values.

IV.  Going Forward

While basic environmental and social values should not be sacrificed for economic growth, rules and procedures have a tendency to become cumbersome. A former World Bank Director commented that many standards and procedures of existing MDBs are “frustratingly bureaucratic, costly and ill-suited to dealing with the real needs of client borrowers.” Improving rules and procedures to be more efficient does not necessarily lead to lower standards. The key is to find the right balance between efficiency and comprehensiveness.

The AIIB expressed its commitment to adopt the “highest possible standards.” Although the AIIB has much room for improvement, its efforts show that the new Bank has the potential to become an institution that sets, rather than follows, international standards.

Jisan Kim is a 2017 J.D. candidate at Harvard Law School and an Executive Editor of the Harvard International Law Journal.

A review of Interpretation in International Law. Edited by Andrea Bianchi, Daniel Peat and Matthew Windsor. Oxford: Oxford University Press. 2015. Pp. 432. $120.00.

By Odile Ammann

The interpretation of international law poses a myriad of challenges: interpretative authority is dispersed, the sources of international law are non-hierarchical, and its norms are often highly indeterminate—be it because they are designed to apply to many different legal orders, result from compromises, or are unwritten, like customary international legal norms and general principles. Moreover, States are often simultaneously the creators, subjects, primary interpreters, and enforcers of international legal norms, which may cast doubt on their interpretative objectivity.

This book is one of the latest scholarly works tackling the issue of interpretation in international law. Its primary theme is the claim that interpretation in international law is analogous to a game with rules, players, and a goal that can be achieved through different strategies. The contributors illuminate the topic from a range of different theoretical perspectives, such as rhetoric (Iain Scobbie), literary theory (Michael Waibel, René Provost), comparative law (Anne-Marie Carstens), textualism (Fuad Zarbiyev), Nietzschean philosophy (Jens Olesen), the theory of speech acts (Jens Olesen, Ingo Venzke), legal sociology (Martin Wählisch), and linguistics (Ingo Venzke). Three chapters, written by Daniel Peat and Matthew Windsor, Andrea Bianchi, and Ingo Venzke, closely scrutinize the similarities and differences between international legal interpretation and games.

Daniel Peat and Matthew Windsor start with the observation that the current “state of play” of international legal scholarship and interpretive practice suffers from several shortcomings: it is often confined to treaty law and to the “rules” of the Vienna Convention on the Law of Treaties (“VCLT”); it myopically focuses on the international legal realm instead of looking to other legal and extra-legal interpretative practices; and it fails to address and theorize the broader purpose and “mechanics” of interpretation on the international plane. The editors’ aim is to offer “a set of tools for deeper reflection on interpretation in international law.” In this project, the game serves as a “heuristic framework,” illuminating the fact that international law is a social practice and that the constraints within which its interpretation operates open up a space of interpretative freedom.

Andrea Bianchi unpacks the shared characteristics of games and interpretation in international law. The object of the game is to convince others of the correctness of one’s interpretation. While some of the players, including international courts and especially the ICJ, are “more equal than others,” as Orwell would put it, a wide range of participants are involved in the game of interpretation, including NGOs, professional associations and even the research assistants of academics. The game also involves cards, mostly contained in the VCLT, which are often “twisted and bent.” Bianchi then turns to the players’ strategies, that is, the plans designed to help them achieve their aims. In international law, interpreters often use rhetorical tools to increase the persuasiveness of their reasoning, especially when their solution departs from the general rule or from previous cases. Another facet of the game is the question of why players play “the game of game playing.” It pertains, in other words, to the “meta-discourse” about the game. Bianchi espouses a view close to Duncan Kennedy’s description of adjudication as “a work with purpose“: interpreters, Bianchi argues, approach their task with a specific goal in mind and try to make their interpretations conform with it. “Why is the game worth the candle?” Bianchi finally asks. Like the lottery, playing is the only way of winning. Yet unlike what happens in a game of chance, the interpreter of international legal norms can try to influence the game itself. Playing the game through accepted moves gives the players a sense of belonging and strengthens the game’s “coherence and stability,” undermining criticisms of the game’s legitimacy.

Ingo Venzke takes the metaphor of “the language of international law” seriously and analyzes it jointly with the “game analogy.” Applied to international legal interpretation, the language metaphor has at least three dimensions: the language of interpretation is a way to resist the powerful, a standard against which their actions can be appraised; it facilitates communication, especially in situations of disagreement and conflict; and it offers a tool by which interpreters can influence the interpretative result. Venzke notes that international legal interpretation is a performative, law-creating act, and that the success of an interpretation is determined not by the rules, but by the practice of international law. Thus, Venzke is not ready to concede that international legal interpretation is comparable to a game, at least not a game of chess where the players’ moves leave the rules of the game intact. In legal interpretation, “as in language, we make up the rules ‘as we go along.’”

The game analogy on which the contributors rely raises four questions on which it is worth pondering. First, how to deal with the wide range of different games the comparison may elicit? Second, what are the stakes involved in international legal interpretation, and is interpretation necessarily adversarial? Third, can players shape the “rules” of the game? Lastly, what work is the game analogy really doing when applied to international legal interpretation?

What kind of game?

While the book cover displays a game of chess, the editors refrain from choosing a particular game. Their aim is to explore both the potential and the limits of the game analogy. The multifaceted nature of games opens up many interesting parallels, but also creates difficulties. Is international legal interpretation comparable to some games only? Can games as a category provide more than a very thin conceptual tool? If Venzke is right that the “rules” of the game of interpretation change with time, do some games drop out of the analogy? Another difficulty pertains to the normative value of playing the game. Are some games (or certain aims of the players) bad, and according to which criteria? When does an activity stop being a game? Likewise, are some interpretations legally or morally wrong? And what is a legally or morally compelling (as opposed to a merely rhetorically convincing) interpretation?

What are the stakes?

The language of games can also trivialize international legal interpretation—most games do not affect our legal rights and obligations. An unhappy ending to the game of Russian roulette can trigger (if one dare say so) criminal and civil responsibility; yet one may wonder if such an activity has not ceased to be a game. The editors caution against overestimating the “recreational” aspect of games. Yet few games involve stakes as high as those commonly associated with international legal interpretation. The game analogy could also disparage the importance of the legal constraints interpreters must observe and, thereby, encourage unilateralism and self-serving interpretations violating international law. As Venzke writes, in international law, “we make up the rules ‘as we go along’”. Yet if the referee of a soccer game informs the players that they can use their hands to pass the ball around and eventually score, are they still playing soccer? Moreover, on this alleged flexibility of the rules governing the game, it is worth noting, as Hart does in The Concept of Law, that even a sports game is not equivalent to playing “scorer’s discretion,” where the scorer is not bound by any rules.

Another related issue is that games connote an adversarial activity. Even if they often involve teams and can be cooperative, as the editors explain, there is at least one (real or virtual) opponent against whom the player wins or loses. Thus, whether a common interest truly exists in games is open to doubt. While the question also arises in international law, which is governed by the principle of auto-interpretation by states, at least some international legal instruments deal with global common goods or with the relationship between the state and its citizens and, arguably, do not fit this adversarial logic.

How to shape and identify the rules of the game?

A third set of questions pertains to the rules of the games and to their stability. International legal norms often display a high degree of vagueness and need to be made more precise in order to be applied to particular cases. Yet the contributors do not analyze in great depth the process by which the “rules of the game” are changed. The distinction between rules establishing rights and obligations (Hart’s primary rules) and rules stating how primary rules are to be identified, changed and adjudicated (secondary rules) would deserve further analysis, especially given the unequal contribution the different “players” make to the primary and secondary norms of international law and the difficulty for a player to change secondary norms unilaterally. The domestic courts in one state, for example, must be able to “team up” with other international and domestic institutions if their interpretations are to create or change international law—via customary international law or other means.

One may also wonder whether the term “rule” is appropriate in international law. In international human rights law, it might be more accurate to speak of primary and secondary principles instead of rules, given the margin of appreciation states usually enjoy to implement these norms domestically. Since the contributors deplore the “rule-based” approach in international legal practice, it would be worth inquiring whether games can be governed by principles requiring further interpretation.

Lastly, while treaty interpretation is undoubtedly of high practical importance, few contributors think outside the VCLT box to clarify how unwritten norms of international law—for instance, customary international legal norms and general principles of international law—ought to be ascertained. The appropriate methods of identification of customary international law, in particular, are currently at the heart of scholarly debates due to the current work of the International Law Commission (“ILC”) on the matter. Whether customary norms also exist in the world of games, and how the players can identify them and make them evolve, would be questions worth asking in order to contribute to the ILC’s efforts.

What are the analogy’s normative implications?

A last question raised by the game analogy is what work this analogy does, and especially what its normative implications are. The editors argue that the game metaphor has “more than an ornamental value,” yet what purpose the metaphor is intended to serve remains unclear. “[I]f metaphor is the dreamwork of language, then analogy is the brainstorm of jurists’-diction,” Scott Brewer writes. Analogical reasoning is compelling if the analogy-warranting rule and the analogy-warranting rationale, as Brewer calls them, are convincing. While the former clarifies the logical relationship between the characteristics shared by the two items that are being compared and an additional characteristic both items are inferred to possess, the latter justifies why this logical relationship should have legal consequences. It would be useful for the reader to know what to infer from the shared characteristics between games and international legal interpretation, and to learn more about the legal consequences—if any—of the game analogy and its normative justification.

Lastly, given the gap that still exists in legal theory and legal philosophy with regard to the interpretation of international legal norms, the game analogy would perhaps benefit from an explanation as to why the interpretation of international law specifically is relevantly similar to a game. This would contribute to filling a jurisprudential vacuum, as many legal scholars and philosophers have referred to games in their work without mentioning international law.

Interpretation in International Law is an original and thought-provoking edited volume dealing with a challenging issue of international legal theory, an issue that has a bearing on the way international legal interpretation is understood and ultimately conducted. Although the volume leaves open several questions as well as its specific implications for legal practice, the contributors further stimulate the international legal debate through the game analogy – and this move is, without doubt, very well worth the candle.

By Iris Goldner Lang and Samuel H. Chang

For the past several months, the UK electorate has been engaged in a fierce political debate over a single question: “Should the United Kingdom remain a member of the European Union or leave the European Union?” British voters will head to the polls on Thursday, June 23, 2016, for a referendum on UK membership in the European Union. By now, much ink has been spilled on the political backdrop, the sequence of events preceding the referendum, and its potential effects on the United Kingdom. Yet the decision to hold a referendum also has significant consequences for the other side of the Channel. Independent of its outcome, the referendum is already having visible effects on the functioning of the European Union in the pre-referendum stage. Two crucial consequences in particular can be discerned on the EU side: first, the creation of a political precedent and, second, the aggravation and diversion of energies from the EU’s internal challenges.

Political Precedent

The United Kingdom’s contemplation of leaving the European Union represents an extraordinary occasion against the historic flow of European integration. For the past sixty years, the economic, political, and social advantages of EU membership have been a magnet to European states, transforming the initial European Economic Community of six states into a Union of 28 Member States and 500 million inhabitants. EU enlargement policy has frequently been credited as the Union’s most successful foreign policy, stimulating positive changes in newly acceding countries and deeply affecting the European Union itself. While the UK voted on EEC membership in 1975, the British Government’s present commitment to a referendum marks the first time in EU history that one of its Member States has seriously opened the possibility of leaving the Union. In this sense, the referendum creates a political precedent for other EU Member States.

More importantly, the creation of a political precedent is driven by the unpredictable nature of a referendum and the EU’s response to such uncertainty. In an effort to accommodate Prime Minister Cameron’s concerns and to gain the UK public’s support, EU leaders have agreed to grant several concessions to the United Kingdom. These concessions—which might not have been possible absent the uncertainty of the referendum or the simultaneous crises facing Europe—will take the form of several amendments of existing EU law in the event of a UK vote to remain.

Against this background, there is a well-founded fear that the UK referendum and the Union’s response to it will not only give impetus to anti-EU sentiments across the continent, but that it might also create a political precedent for leaders from other Member States to begin asking for concessions under the threat of leaving the Union. This fear is echoed by European Council President Donald Tusk, who recently expressed his concern that the UK referendum might serve as a “very attractive model for some politicians in Europe to achieve some internal, very egotistic goals.” He further added, “It is not only my intuition. I know in fact that some politicians in Europe are ready to use this political model, to underline that they are really independent towards Brussels and the EU. It is the most popular political melody in some capitals.”

Indeed, one may question the incentives behind existing calls for referenda on EU membership and wonder whether they are motivated by national politicians’ sincere concerns about the long-term interests of their citizens, or whether they are better viewed as short-sighted, populist moves in line with the famous words of Groucho Marx: “Why should I care about future generations? What have they ever done for me?” Hungarian Prime Minister Victor Orban’s announcement of an anti-immigration referendum on EU refugee quotas, which were adopted last fall as legally binding decisions by the Council of the European Union, serves as one example of such developments across Europe. The UK referendum has also prompted discussions about leaving the European Union in the Czech Republic and France. Such debates are likely to continue in other Member States as well.

Aggravation of EU challenges

The second consequence of the Brexit campaign, already visible in the pre-referendum stage, is the delay of addressing certain challenges until after the British vote. This has resulted in the aggravation of the EU’s internal problems and the diversion of its energies away from political solutions. The potential of Brexit is yet another one of the many internal crises the EU has been experiencing in the past decade. European leaders have long pointed to the positive effects of crises on European integration, perhaps the most famous being Jean Monnet’s statement that “Europe will be forged in crises, and will be the sum of the solutions adopted for those crises.”

However, there has been a visible escalation of the magnitude of EU crises in the 21st century, as each new crisis surpasses the preceding one in its complexity and profoundness. The 2005 failure of the Constitutional Treaty, triggered by its rejection at the French and Dutch referenda, marked a constitutional and institutional crisis concerning fundamental disagreement over the Union’s future identity. It also demonstrated the fragility of leaving the European project to a direct public vote. The immediate crisis was eventually resolved by the adoption of the Lisbon Treaty, but its root causes were not addressed, the most prominent being problems in the EU decision-making procedure (including its remoteness from the average EU citizen) and the existence of conflicting motivations among Member States. Likewise the sovereign debt crisis has still not been entirely resolved, while the most recent crisis over the mass influx of refugees into Europe is in full swing, dismantling a number of EU rules, principles, and values. Both the financial and the refugee crises created political and social tensions across Europe and have brought to the surface the problems of inter-state solidarity. Though the refugee influx is the proximate cause of the current crisis, the actual crisis is not about refugees or their numbers, but rather the Union’s inability to respond to the influx in an organized, united, and human rights compliant manner. Thus, the “refugee crisis” might be more aptly described as an EU institutional, political, moral, and humanitarian crisis.

Amidst the ongoing crises, the UK referendum further accentuates the divisions currently existing among Member States. It brings to the spotlight Member States’ inability to speak with one voice, show mutual trust and understanding, or find solutions to mounting problems. The UK referendum has diverted the Union’s energies from existing problems toward discussions related to EU membership and Brexit contingencies. Because the proponents of Brexit have tied the referendum to current EU challenges such as the refugee influx and Greek debt crisis, EU leaders are walking on eggshells in the final months before the referendum as to not exacerbate British public dissatisfaction with the situation in the Union. As a consequence, they have avoided politically contentious actions that may be necessary to reaching stable, definitive solutions. Along with the tensions from Germany’s internal politics, for instance, the UK referendum adds to Member States’ reluctance to discuss Greek debt relief in detail. In other respects, the referendum increases pressures to push forward with difficult stopgap measures such as the politically fraught deal with Turkey. In short, the potential of Brexit comes at the worst possible time in EU history. It sends a signal of insecurity both internally and externally, contributing to the further destabilization of the Union at its most vulnerable moment. Before any ballots are even counted, the referendum itself has already cast a symbolic vote of no confidence in the European project.

Iris Goldner Lang is a John Harvey Gregory Lecturer on World Organization and a 2015-2016 Fulbright Visiting Researcher at Harvard Law School. She is also a Jean Monnet professor of European Union law and UNESCO Chairholder at the University of Zagreb, Faculty of Law.

Samuel H. Chang is a 2016 J.D. candidate at Harvard Law School and an Executive Editor of the Harvard International Law Journal.

In this essay, a slightly revised version of the Sherrill Lecture delivered in April, Professor Jack Goldsmith shares his insights on the Obama administration’s contributions to the practice and theory of international law. This essay will appear in the print edition of the Harvard International Law Journal, Volume 57. Please cite this essay provisionally as follows: Jack Goldsmith, The Contributions of the Obama Administration to the Theory and Practice of International Law, 57 Harv. Int’l L.J. (forthcoming 2016).

See Professor Jack Goldsmith’s Essay

Luis Moreno Ocampo was the founding Chief Prosecutor of the International Criminal Court (2003-12) and is currently an Associate at the Harvard University Carr Center for Human Rights Policy. The interview was conducted on January 14, 2016, at the Harvard Kennedy School of Government by Angel Gabriel Cabrera Silva (Harvard Law School LLM’16). Questions in this edited transcript were prepared by Angel Gabriel Cabrera Silva and Juan Calderón Meza.

HILJ: In cases such as IG Farben, Krupp and Flick of the subsidiary Nuremberg trials, corporate officials that contributed to the Nazi Holocaust or aggressive war were prosecuted and convicted. In your experience, how, if at all, has the Office of the Prosecutor (OTP) contemplated these precedents in order to investigate corporate officials in the situations under examination or investigation?

LMO: From the beginning of my tenure, I had the idea to try to investigate corporate executive responsibility in massive atrocities. In fact, I mention this in my swearing-in speech in June 2003. However, it is not about the theory, it is about the facts. We never had sufficient facts to present a case against someone making financial contributions or a corporate executive helping commit massive atrocities. In my tenure, we never had the facts.

HILJ: Some State Parties of the Rome Statute, especially those using civil law systems, entitle civil parties to file actions seeking damages from juridical persons within criminal proceedings commenced against corporate executives. If a corporate executive is indicted by the OTP, would it be possible, via interpretation of article 75 of the Rome Statute, to vest victims with civil actions before the International Criminal Court against the corporations through which indicted corporate executives contributed to criminal conduct?

LMO: There would not be a direct action for the victims, but the prosecutor and judges could decide whether or not they would compensate the victim using money from the convicted person.

HILJ: Other State parties of the Rome Statute, especially those coming from a common law tradition, recognize criminal liability for corporations. Would it be possible, via interpretation of the Rome Statute from the practice of those State parties, to indict a corporation?

LMO: Personally, when I was the Prosecutor, I tried to be conservative in my interpretation of the law because it was the best way to ensure I was applying the law that the states adopted. And for me, there is no criminal responsibility of corporations under the Rome Statute. The Statute should be amended to prosecute corporations as such.

HILJ: Could the assets of indicted corporate executive’s corporations be frozen and transferred to the Victims’ Trust Fund?

LMO: If corporate executive defendants are convicted, their assets can be used to compensate the victims. However, this becomes more complicated when dealing with corporate assets. If the corporation made a profit, then you can discuss the topic. Regardless, the corporations themselves are not under the jurisdiction of the International Criminal Court.

HILJ: If necessary, do you think that it is feasible that the State Parties amend the Rome Statute to include any or all of those possibilities: (i) civil remedies for victims to seek damages against the corporations of the indicted executives, (ii) corporate criminal liability (iii) and/or freezing assets of those corporations? Which is more or less feasible?

LMO: I do not think this would happen. I do not think the States Parties would amend the Rome Statute to expand investigation to corporations. I think what should be done is to use the current text and see if it is possible to prosecute and investigate members of corporations in accordance with the current International Law standards.

HILJ: How do you perceive the ICC is taking into account the increasing participation of corporations in armed conflict and atrocity crimes (i.e. could the ICC be having a deterrent effect of any kind)?

LMO: I am not sure it is true that there is increasing corporate participation in atrocity crimes. In my experience, I do not see that. I have no evidence to say that it is true.

HILJ: Given that some transnational corporate activities are conducted in several places simultaneously, where would the OTP consider the relevant conduct as being perpetrated for the purpose of assessing complementarity (Would the ICC give preference to any particular state, say the territorial state where crimes were committed or where the financial transactions were approved? Or would it be necessary that all states involved had failed to prosecute the alleged criminaL?)?

LMO: Suppose you have a corporation with offices in different countries and each office is susceptible to have done the crime. Any country conducting an investigation against such a corporation could prevent the ICC from investigating executives of that corporation. The principle of the ICC is that justice has to be done, and preferably, the nation state should do it. The ICC would never compete with a national system to conduct an investigation.

HILJ: Would you look more closely to the state where the criminal conduct happened or where the corporation is based for complementarity purposes?

LMO: The point is that the ICC is content as long as at least one country is conducting the case. Suppose you have a German company committing a crime in the Congo. If the Congo or Germany is conducting proceedings, it is perfect for the ICC, as long as the proceedings are genuine.

HILJ: Following on the previous question, would it be enough for purposes of complementarity that one of the states where the corporation’s activities are being conducted is party to the Rome Statute?

LMO: Any national authority, including non-state parties, should be considered if they are conducting a proper investigation. You cannot prosecute the same person twice for the same case. That is the ne bis in idem principle. For example, if the US, who is a non-state party, investigates both a company and an individual managing the company and subsequently convicts them for participating in massive atrocities, then the ICC should respect that.

HILJ: In your opinion as a professor, if you were to decide which would be the best way to improve accountability of corporate executives after domestic jurisdiction of states involved have failed, would you rather advocate for universal jurisdiction by domestic courts or for international jurisdiction?

LMO: I believe the best way to control corporate misbehavior is to work with corporations and their competitors. We must also ensure that business people understand that their businesses cannot be connected with massive atrocities. Therefore, it is not just about conducting cases, but also about working with business people. What I learned is that we can do much more to avoid conflict through prevention than through conducting cases.

One case. If we had one case, that would be enough. That one case, whether it was national or international, would have to be disseminated well enough to explain to business people the consequences of their conduct. If we had one case, it would be enough. We could use the case to explain to business people the risk in being involved in atrocity crimes. Criminal law is about prevention.

HILJ: As a former ICC prosecutor, what would be your suggestion to lawyers aiming to bring corporate executives before the ICC?

LMO: You need good evidence and a case that satisfies the elements of the crime required by the statute; if you have that, then go for it.

HILJ: Which improvements to the structural framework of International Criminal Law could be made to allow greater criminal accountability of international crimes committed by corporate officials?

LMO: I don’t think this is a legal issue. I think it is a matter of will, and of disseminating the idea that companies cannot be involved in massive atrocities. We do not need new law; we need to enforce what we have. As I said before, one case would be enough to serve as an important deterrent to companies. They should not be involved in this. We do not need many cases; we need to show companies that there is a risk.

HILJ: There is a Truth Commission in Argentina on Business and Human Rights. Do you think that is a good approach for the companies that allegedly supported the atrocities?

LMO: The Truth Commission in Argentina is not intended to provide immunity to the accused. The Truth Commission is a way to collect information and witnesses. It was one of the first truth commissions and was used as a first investigation that allowed the prosecutor’s office to conduct their own investigation. Therefore, the Truth Commission was about collecting evidence, not granting immunity.

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By Ambassador Luis Gallegos^* and Daniel Uribe^**

The possibility of establishing a world court on business and human rights is one of the elements discussed in the current debate over the adoption of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights in the United Nations Human Rights Council. Even though the existence of a world institution could bring important benefits for the development of international law and protect victims of human rights abuses by corporations, it is also necessary to draw up an inventory of different factors that could interfere in the design of an instrument of binding nature.

The world court on business and human rights could be competent to hear cases brought by victims of human rights abuses perpetrated by corporations and to decide the legal liability of such corporations on the basis of an effective international legally binding instrument on business and human rights. Still, the establishment of this court may face issues regarding funding, the role of States in proceedings, and matters of access to the court, including costs and legal representation of victims.

This Article will not deal directly with these issues or argue in favour of or against the establishment of a world court on business and human rights. Instead, it will examine the feasibility of establishing the court by examining previous attempts to recognize the jurisdiction of international tribunals for human rights abuses committed by private entities.

I. Previous Attempts 

The international community has taken various efforts to condemn abominable acts against humanity committed by private individuals and other private entities in international law. Particularly during the nineteenth century and the middle of the twentieth century, the international community promoted the establishment of international tribunals for the protection of human rights and human dignity.

The establishment of international courts against slave trade during the early 1800s^[1] constituted the first attempts to condemn such acts. Various treaties signed by Great Britain with the Netherlands, Portugal, and Spain created the antislavery courts that had jurisdiction to adjudicate cases of captured slave ships^[2] with the particular aim to suppress the slave trade. During the lifespan of the treaty, over 600 cases were heard by the courts and 80,000 slaves were found in captured vessels^[3].

As another example, the egregious violations of human rights committed during the Second World War led to discussions on corporate responsibility against the “major war criminals of the European Axis.”^[4] However, although the contribution of German businesses during the war ranged from profiting from a slave work force to supplying Zyclon B, the gas used by the SS in Auschwitz to murder more than 1 million people,^[5] the tribunals of Nuremberg recognized only individual criminal liability for a number of high-level management officials of different corporations. The tribunals also viewed businesses as an instrument necessary to commit the crime, but not as criminal organizations. Likewise, the idea of prosecuting corporations—legal entities—for similar crimes was included in the draft of the Rome Statute, but it did not find support for various reasons, including the fact that not all state-parties recognised such corporate criminal liability in their jurisdictions.^[6]

Important steps have also been taken during the twenty-first century on the issue of business and human rights. The adoption of the UN Global Compact’s governance framework by the U.N. Secretary General in 2005, the U.N. Human Rights Council’s embrace of the Protect, Respect, and Remedy Framework in 2008, and the development of the U.N. Guiding Principles on Business and Human Rights in 2011, to name but a few, are good examples of such efforts.

II. A World Court on Business and Human Rights?

The negotiations on an international legally binding instrument on business and human rights have fired up long-standing discussions on the design of an international organization in charge of the enforcement of corporate human rights obligations. During the debate that led to the adoption of Resolution A/HRC/RES/26/9^[7] and the first negotiation on a binding instrument on business and human rights, held by the Open Ended Intergovernmental Working Group (OEIWG) in July 2015,^[8] some stakeholders proposed a world court on business and human rights.

First, it is important to recognise an effective international legal framework on business and human rights as an essential step towards protecting victims’ access to remedies for corporate wrongdoings. An international, legally binding instrument could clarify the obligations of corporations to respect human rights and guarantee the rights of victims from corporate-related human rights abuses to access remedies. In the case of businesses, it could level the playing field for the international operation of corporations because the instrument will establish authoritative means to resolve conflicts arising from the law in different jurisdictions. It would also create a mechanism to respond to corporate abuses in a “concerted fashion,”^[9] thus eliminating unfair competitive advantages for corporations around the world.

This “concerted” approach for the access to remedies and legal standards on business and human rights will not undermine states’ obligation to oversee the conduct of corporations, as it would operate under the international principle of subsidiarity, by which international institutions may exercise jurisdiction in cases where national legal systems are unwilling or unable to fulfill their primary obligation to protect human rights and redress human rights violations, and could enhance domestic efforts to protect human rights through international cooperation and legal coherence, as it will impose common international standards on the matter.

Second, the feasibility of creating an international tribunal on business and human rights could be examined in light of previous attempts. The antislavery courts of the nineteenth century are an important precedent for the OEIWG, mostly because they challenged the dominant economic model at that time. The slave trade was believed to be essential for the viability of colonial economies and it was unthinkable at that time to impose restrictions to this profitable enterprise. These courts also introduced an institutional framework based on mixed commissions formed by judges belonging to the state parties to the treaty, who were assisted by a local registrar of the place where the court was seated for the collection of evidence and other administrative tasks. Such a framework could serve as a model for the design of the world court of business and human rights. The establishment of these courts as an enforcement mechanism of international treaties, in cooperation with other domestic legislative efforts, was the cornerstone for the effective suppression of the transatlantic slave trade.^[10]

Similarly, even though the Nuremberg Trials limited themselves to judging individuals for the crime of “membership” in a criminal organization with the sole purpose of easing the avenue for the prosecution of a large number of persons through more expeditious trials,^[11] this approach was not the only option. Abraham L. Pomerantz, Chief Counsel at the Nuremberg Trials, intended to prosecute business entities on the basis of corporate liability. The approach suggested by Pomerantz could also guide the work of the OEIWG if the feasibility of a world court if such element is argued.

Pomerantz suggested that crimes committed by corporations in the Second World War complied with the common law test of liability because the acts were (1) within the scope of the business, (2) committed or ordered by a superior agent (senior manager or solely owner), and (3) constituted crimes for which the punishments included fines and forfeitures of property.^[12]  Regrettably, Pomerantz’s position was not followed in the indictments of industrialists in the subsequent Nuremberg trials due to the economic and political interests in reconstructing post-war Europe.^[13]

Conclusion

These examples underline the common interest of the international community in addressing a systematic and evolving approach for the provision of more effective mechanisms aimed at the protection of human rights and cope with the always dynamic and flexible domain of the liberalised market and the world of large-scale trans-boundary operations of corporations.

Discussions of the feasibility of a world court on business and human rights should consider different elements that would ensure its efficiency and effectiveness, including legal representation and assistance for victims, the role of states in proceedings, and other administrative and procedural issues, such as recollection of evidence and enforcement of judgments through international cooperation. The lessons learned from the past could guide these discussions with the purpose of advancing towards a fairer and more equal world.

Finally, stakeholders could use these lessons to propose avenues to ensure that the international framework for the protection of human rights is best suited to the task, while not delaying the adoption of an international legally binding instrument on business and human rights.

* Ambassador Luis Gallegos is the Permanent Representative of Ecuador to the United Nations and a member of the U.N. Committee against Torture.

*^* Daniel Uribe is a Visiting Fellow at the South Centre.

[1] See Jenny S. Martinez, Antislavery Courts and the Dawn of International Human Rights Law, 117 Yale L. J. 550, 641 (2008).

[2] See id. at 576 n.1..

[3] See Leslie Bethell, The Mixed Commissions for the Suppression of the Transatlantic Slave Trade in the Nineteenth Century, 7 J. Afr. Hist. 76 (1966), cited in Martinez, supra note 1, at 553 n.1.

[4] United Kingdom of Great Britain and Northern Ireland, United States of America, France, and Union of Soviet Socialist Republics, Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (Aug. 8, 1945) art. 1 [hereinafter London Agreement].

[5] See Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said, 109 Columbia L. Rev. 1015 (2009).

[6] Kathryn Haigh, Extending the International Criminal Court’s Jurisdiction to Corporations: Overcoming Complementarity Concerns, 14(1) Australian J. of Hum. Rts. 202–203 (2008).

[7] Resolution A/HRC/RES/26/9 was adopted during the 26^th ordinary session of the United Nations Human Rights Council on June 2014 and provided for the establishment of an Open Ended Intergovernmental Working Group (OEIWG) with the mandate to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. U.N. General Assembly, Human Rights Council, Resolution A/HRC/RES/26/9, Elaboration of an Internationally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights (July 14, 2014).

[8] See United Nations Human Rights Council, Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, http://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/IGWGOnTNC .aspx (last visited May 7, 2016).

[9] Kevin T. Jackson, A Cosmopolitan Court for Transnational Corporate Wrongdoing: Why Its Time has Come, 17 J. of Bus. Ethics 759 (1998).

[10] See Jenny S. Martinez, Slave Trade on Trial: Lessons of a Great Human Rights–law Success, Boston Rev. (Sept. 1, 2007), http://www.bostonreview.net/jenny-martinez-slave-trade-on-trial, (accessed Nov. 25, 2015).

[11] International Law Commission, The Charter and Judgment of the Nürnberg Tribunal – History and Analysis (United Nations 1949), Memorandum submitted by the Secretary-General A/CN.4/5, 75.

[12] See Bush, supra note 5, at 1153.

[13] See id. at 1117−23.

[View PDF version]

By Sara McBrearty^*

In 2014, the U.N. Human Rights Council (UNHRC) established an open-ended working group to develop “an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”^[1] The UNHRC initiated the treaty process in response to a call from Ecuador and other states that were impatient with what they saw as slow and limited international progress on business and human rights.^[2]

This proposed treaty is the indirect result of a U.N. initiative that began in 2005 with the appointment of Professor John Ruggie as a Special Representative on “transnational corporations and other business enterprises with regard to human rights.”^[3] Professor Ruggie’s work led to the 2008 U.N. Framework on Business and Human Rights, followed by the landmark (and unanimous) adoption of the 2011 U.N. Guiding Principles on Business and Human Rights.^[4] These non-binding Principles, known as the “GPs,” were met with widespread support from states, businesses, and civil society.

However, a mere two years after the GPs were adopted, and before much progress could be achieved, Ecuador proposed a new, binding treaty on the same issue.^[5] The proposal was adopted in 2014 through a sharply divided vote.^[6] The negotiations are, at present, proceeding in tandem with implementation of the GPs. On all sides of the debate, there are many who would like to see both the treaty and the GPs succeed. But while the general goals of the treaty are certainly admirable, serious challenges already plague the process. Left unaddressed, they may derail both initiatives.

First, the direct enforcement of human rights norms against corporations, rather than states, represents a fundamental theoretical departure from traditional human rights practice. The proposed treaty would hold corporations directly liable under international law for violating human rights.^[7] International law has historically held states accountable for their own human rights violations and for violations committed by individuals and corporations within their borders. The GPs are an example of this principle as historically applied. They are based on the “protect, respect, remedy” framework: states protect against third-party abuses through legislation and enforcement; corporations are independently responsible for respecting human rights; and states ensure that victims of human rights violations have access to effective remedies.^[8]

The treaty proposes to abandon this framework, without offering a clear division of responsibility or an articulable standard to replace it.

Opponents, including human rights activists, have argued that states will use the treaty to excuse their own refusal to protect human rights. They point out that the treaty co-sponsors and many of their state supporters have thus far done “little if anything” to act on the GPs.^[9] The treaty co-sponsors have also been criticized for their own less-than-stellar human rights records. For example, in its 2015 World Report, Human Rights Watch criticizes the co-sponsors for a number of serious violations, including, inter alia, their targeting of human rights defenders, protesters and journalists; placing severe limitations on freedom of expression; legalizing of child labor; arbitrary detention; and lack of judicial independence.^[10] This and other reports are certainly not dispositive. However, they have led opponents to question whether, having failed or refused to protect human rights themselves, some states may use the treaty to shift the human rights onus (and the blame) onto corporations.

Many treaty opponents accept that some form of corporate responsibility is needed. But it should be clearly delineated, and should only be a supplement to—never a substitute for—the states’ duties to fulfill their human rights obligations.

Second, the lack of a clear treaty objective may prove fatal. The idea of establishing a single international standard of corporate human rights responsibility is admirable—but in practice, the treaty has done nothing of the sort. The treaty fails to answer important questions about the content and limits of the proposed corporate responsibility. Will corporations be liable for ensuring all human rights enumerated in the core international instruments? Is it plausible that states will agree on a single standard for every human right? If not, which rights will the treaty cover, how will they be selected, and who will decide how they are implemented on a case-by-case basis?

For example, the U.N. economic, social and cultural rights, while laudable, are also sweeping in scope. They include rights “to an adequate standard of living for [oneself] and [one’s] family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”^[11]; “to the enjoyment of the highest attainable standard of physical and mental health”^[12]; and “to enjoy the benefits of scientific progress and its applications.”^[13] These and many other rights are incorporated into a vast web of domestic laws, in different ways and to varying degrees, in every state.

Treaty opponents argue that the complex balance of public interests, domestic politics, individual rights and state sovereignty can only be established and maintained by states. States currently decide—often through the democratic process—how to protect human rights within their borders. It is surprising that human rights advocates and states would so readily cede this power to set public policy to transnational corporations.

Third, the exclusion of purely national corporations raises serious questions about the objectives of the treaty. The proposed treaty would only apply to transnational corporations, to the exclusion of purely national companies.^[14] This exclusion is in line with the widely-held view that the “governance gaps” disproportionately affect transnational corporations. States have argued that the treaty need not regulate domestic entities, because domestic laws are sufficiently protective.

Opponents fiercely object to this focus on transnational corporations. If the sole objective of the treaty is to hold corporations liable for human rights violations, then there is no place for such a distinction. All corporations should be equally responsible, no matter where they are headquartered or where they operate. To illustrate, if this principle were applied to the horrific Rana Plaza disaster, transnational corporations who purchased clothing made in the factories would be responsible while the local factory owners and employers would not.^[15]

Moreover, if domestic laws actually are protective enough, as states argue, then they should be able to regulate the activity of transnational corporations within the state without the need for a new treaty. The exclusion of domestic corporations would create an uneven playing field, giving domestic and state-owned corporations significant advantages over foreign competitors, who would be held to a different and higher standard. Opponents of the treaty prefer the approach of the GPs, which apply to all corporations.^[16]

Fourth, the calls to exclude corporate stakeholders from the treaty negotiations will likely backfire. The GPs represented a major change in the tone of the business and human rights debate. In response to the deep historical polarization between opposing groups, the GPs were developed with an open, inclusive, multi-stakeholder approach.^[17] This resulted in a greater shared understanding and purpose, and ensured wide multi-stakeholder support.^[18]

Some proponents of the new treaty, by contrast, have called for corporations to be excluded from the negotiating process.^[19] One-sided negotiations might give supporters short-term “wins” in the form of stronger treaty language. However, an exclusive approach would ultimately limit support for the treaty and reverse the collaborative and cumulative progress of the GPs.

Moreover, corporations may be more willing to support the proposed treaty than activists believe. In a recent study, The Economist found that the overwhelming majority of executives (83%) agree that human rights are a matter for business as well as governments.^[20] 71% say that their company’s responsibility to respect these rights goes beyond simple obedience to local laws.^[21] The study points out that this degree of agreement represents a major break with prior attitudes, even as recently as the 1990s.

Professor Ruggie has cautioned treaty proponents against “… going down a road that would end in largely symbolic gestures, of little practical use to real people in real places, and with a high potential for creating serious backlash against any form of further international legalization in this domain.”^[22] Given the lack of support for the treaty among key states and stakeholders, the negotiations seem to be doing just that. Unless these and other problems are addressed, the treaty may be destined to languish in protracted and increasingly bitter negotiations—like so many initiatives before it.

Treaty proponents would do well to take the opportunity to learn from and build on the successes of the GPs—before it’s too late.

* Sara McBrearty is an associate in the Houston office of King & Spalding, LLP, specializing in international investor-state and commercial arbitration.

[1] G.A. Res. 26/9 (July 14, 2014), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/082/52/ PDF/ G1408252.pdf?OpenElement.

[2] Business & Human Rights Resource Centre, Statement on behalf of a Group of Countries at the 24^th Session of the Human Rights Council (Sept. 2013), http://business-humanrights.org/sites/default/files/media/ documents/ statement-unhrc-legally-binding.pdf.

[3] See Human Rights Council Res. 2005/69, U.N. Doc. E/CN.4/RES/2005/69 (Apr. 20, 2005), http://ap.ohchr.org/documents/E/CHR/resolutions/E-CN_4-RES-2005-69.doc; Human Rights Council Res. 8/7, U.N. Doc. A/HRC/RES/8/7 (June 18, 2008), http://ap.ohchr.org/documents/E/HRC/ resolutions/A_ HRC_RES_8_7.pdf.

[4] Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011).

[5] The treaty was co-sponsored by South Africa, Bolivia, Cuba, and Venezuela. Business & Human Rights Resource Centre, Statement on behalf of a Group of Countries at the 24^th Session of the Human Rights Council (Sept. 2013), http://business-humanrights.org/sites/default/files/media/documents/statement-unhrc-legally-binding.pdf.

[6] Business & Human Rights Resource Centre, UN Human Rights Council sessions, http://business-humanrights.org/en/binding-treaty/un-human-rights-council-sessions#twenty_six_session (there were twenty votes in favor, fourteen against, and thirteen abstentions).

[7] Human Rights Council, Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, U.N. Doc. A/HRC/26/L.22/Rev.1 (June 25, 2014).

[8] Human Rights Council, supra note 4.

[9] John G. Ruggie, The Past as Prologue? A Moment of Truth for UN Business and Human Rights Treaty (July 8, 2014), http://www.hks.harvard.edu/m-rcbg/CSRI/Treaty_Final.pdf.

[10] Human Rights Watch, 2015 World Report (2015), https://www.hrw.org/world-report/2015.

[11] International Covenant on Economic, Social and Cultural Rights, art. 11, Dec. 16, 1966, 993 U.N.T.S. 3.

[12] Id. at art. 12.

[13] Id. at art. 15.

[14] Human Rights Council Res. 26/9, U.N. Doc. A/HRC/RES/26/9 (July 14, 2014), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/082/52/PDF/G1408252.pdf?OpenElement.

[15] John G. Ruggie, supra at note 9.

[16] Human Rights Council, supra note 14.

[17] Mandate of the Special Representative of the Secretary-General (SRSG) on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, Recommendations on Follow-Up to the Mandate, UN. Doc A/HRC/17/4 (Feb. 11, 2011), www.business-humanrights.org/media/documents/ ruggie/ruggie-special-mandate-follow-up-11-feb-2011.pdf.

[18] Id.

[19] See, e.g., Kate Lappin, Haley Pedersen & Tessa Khan, Influence of corporations in treaty process would undermine affected communities’ interests, Business & Human Rights Resource Centre, Mar. 28, 2016, http://business-humanrights.org/en/influence-of-corporations-in-treaty-process-would-undermine-affected-communities%E2%80%99-interests.

[20] The Economist Intelligence Unit, The Road From Principles To Practice 4 (2015), http://www.economistinsights.com/business-strategy/analysis/road-principles-practice/fullreport.

[21] Id.

[22] John G. Ruggie, A UN Business and Human Rights Treaty? (Jan. 28, 2014), http://business-humanrights.org/sites/default/files/media/documents/ruggie-on-un-business-human-rights-treaty-jan-2014.pdf.