BOSTON COLLEGE
INTERNATIONAL AND COMPARATIVE
LAW REVIEW
Vol. XXXIII
Winter 2010
No. 1
ARTICLE
When Due Process Concerns Become Dangerous: The Security
Council’s 1267 Regime and the Need for Reform
Jared Genser & Kate Barth
[pages 1–42]
Abstract: The United Nations Security Council adopted Resolution 1267
in 1999 in response to rising apprehension of a surge of terrorist activity
within Afghan territory. Notably, the Sanctions Committee charged with
enforcing the Resolution provisions did not impose asset freezes, arms
prohibitions, or travel bans on entire nations suspected of supporting the
Taliban. The 1267 regime instead subjected individuals and entities to
these sanctions. Based on information provided by U.N. member states,
such targets found themselves on the Security Council’s terrorist “blacklist,” known as the Consolidated List. The targets were neither warned of
this listing nor afforded a method by which they could effectively appeal
their inclusion. This Article discusses the due process concerns inherent
to the 1267 regime, which have been increasingly emphasized at both the
regional and national court levels, leading to invalidation of some regulations implementing the regime. It then evaluates alternative solutions to
the procedural status quo against a proposed set of criteria, ultimately advocating for an independent tribunal capable of hearing complaints from
targets and issuing binding delisting decisions.
NOTES
Halting Urban Sprawl: Smart Growth in Vancouver and Seattle
David Fox
[pages 43–60]
Abstract: Haphazard and unorganized land-use planning in United
States cities has resulted in endless sprawl that is straining infrastructure,
polluting the atmosphere, and negatively affecting quality of life. This
Note compares efforts of two similarly situated North American cities—
Seattle and Vancouver—in enacting Smart Growth policies to combat
sprawl and argues that Seattle, and American cities in general, should
look to Vancouver’s example to limit urban sprawl and comprehensively
plan at local and regional levels for sustainable growth and more livable
spaces over the coming decades.
Chasing Ghosts: Pursuing Retroactive Justice for Franco-Era
Crimes Against Humanity
Angela M. Guarino
[pages 61–86]
Abstract: In October 2008, Judge Baltasar Garzón declared himself competent to open Spain’s first criminal investigation of Franco-era atrocities.
His decision formally classified the 114,000 executions and thousands of
forced disappearances that occurred during the Spanish Civil War and
ensuing dictatorship as crimes against humanity. It also accused Francisco
Franco and thirty-four of his generals and ministers of having committed
these crimes. Throughout Spain’s transition to democracy and beyond,
Spain has adhered to a “pact of forgetting,” formalized by a 1977 amnesty
law, in which political leaders agreed that regime members would not be
prosecuted for their acts. Given this traditional silence and the fact that
the majority of the acts concerned were committed seventy years ago, critics disputed Judge Garzón’s jurisdiction over the action. This Note considers four jurisdictional obstacles to prosecution and whether international law provides a method through which they might be overcome.
Sans-Papiers, Sans Recourse? Challenging Recent Immigration
Laws in France
Emily B. Kanstroom
[pages 87–106]
Abstract: The 1789 Declaration of the Rights of Man and of the Citizen
established natural and inalienable rights not only for French citizens but
also for all of humanity. This historic commitment to fundamental rights
and liberties notwithstanding, immigrants without legal documents living
in France (sans-papiers) often do not benefit from some of these most basic guarantees. In 2007, a Commission charged with modernizing and reforming the institutions of the Fifth Republic proposed amending the
Constitution to allow individuals to argue that the law, as applied in their
case, does not conform to the rights and liberties recognized by the Constitution. By December 2009, a constitutional revision law and an institutional act had combined to grant the Constitutional Council a striking
new power: the ability to review laws after promulgation and to assess
their conformity with the Constitution. This recent evolution may provide
the basis for constitutional challenges to the restrictive legislation sanspapiers now endure.
Stimulating the Stimulus: U.S. Controlled Subsidiaries
and I.R.C. 965
Matthew Jerome Mauntel
[pages 1107–128]
Abstract: Recently, there has been much debate about how and when to
balance the federal budget. Economists have examined how to safely raise
taxes without stifling crucial growth in a fragile economic climate. This
Note argues that a method already exists for tapping additional, secure
sources of funding, namely the taxation of repatriated earnings from foreign subsidiaries. The Note explores the advantages and disadvantages of
reenacting a tax break on foreign profits returning to the U.S. and concludes that the reenactment of this tax break coupled with major revision
of the tax code will improve the taxation of U.S. businesses with subsidiaries abroad. These two acts are keys to a more honest and more effectual
international tax system.
How to Cut the Cheese: Homonymous Names of Registered
Geographic Indicators of Foodstuffs in Regulation 510/2006
Kaiko Shimura
[pages 129–152]
Abstract: Since the 15th century, European states have sought to protect
certain foodstuffs originating from a designated geographic location.
When multilateral and bilateral agreements failed to establish sufficient
protection amongst the European Community member states, the European Community sought to establish uniform standards of protection by
adopting Regulation 2081/92 in 1992. While an important step in the
harmonization of varying European state practices, Regulation 2081/92
failed to address the problem of names that are homonymous to registered, protected names. In 2006, the European Community attempted to
address this issue in Regulation 510/2006. This Note explores the issue of
“homonymous names” and how the European Court of Justice has struggled to define the term. The author concludes that Regulation 510/2006
fails to provide a clear standard regarding homonymous names and
should be amended to avoid the very problem the European Community
sought to address in enacting uniform standards of protection: varying
state practices which result in increased litigation.
Moral Disharmony: Human Embryonic Stem Cell Patent Laws,
Warf, and Public Policy
Jenny Shum
[pages 153–178]
Abstract: Human embryonic stem cells have unique regenerative properties and the ability to develop into a variety of different cell types. Based
on these properties, stem cell research is considered a promising biomedical field for the development of cell-based therapies to treat diseases.
It is also a highly contentious field because these cells are derived from
human embryos. The United States, unlike the European Union, does
not have a moral component to the patent grant process and has granted
several stem cell patents. This Note examines the intersection of these
broad patents and U.S. policies limiting stem cell research funding and
highlights their deleterious effects on the progress of human embryonic
stem cell research. This Note also evaluates the feasibility of incorporating
ethical criteria, as used in the European Union, for U.S. patent grants
and concludes that uniform moral standards would be impossible to determine and effectuate for this process.
To Have and to Hold: The Future of DNA Retention in the
United Kingdom
Jason M. Swergold
[pages 179–200]
Abstract: The United Kingdom’s National DNA Database, in existence
since 1995, is now in jeopardy after the European Court of Human Rights
ruled that the United Kingdom’s DNA retention policy violates a person’s
right to a private life under the European Convention on Human Rights.
The retention program is the most sweeping in the world and had previously withstood a number of challenges in British courts. The ECHR decision now presents the United Kingdom with the problem of complying
with the judgment while protecting the Database it has built over the last
three decades. The question that remains is whether the United Kingdom
can do both.
Having Its Yellowcake and Eating It Too: How the NSG Waiver
for India Threatens to Undermine the Nuclear
Nonproliferation Regime
Benjamin Wastler
[pages 201–217]
Abstract: The Nuclear Suppliers Group (NSG) is a cartel of nuclear
suppliers that imposes export restrictions on nuclear trade with states
that do not adhere to the Treaty on the Non-Proliferation of Nuclear
Weapons (NPT) or submit to safeguards administered by the International Atomic Energy Agency (IAEA). The NSG passed a waiver of restrictions on nuclear commerce with India in September 2008 despite
India’s failure to meet either of these nonproliferation norms. This
waiver, largely influenced by the economic and political motivations of
large nuclear suppliers, establishes a double standard for India because
it provides India with the same trade benefits of NPT members but
without the nonproliferation obligations. This Note argues that the
NSG waiver threatens to undermine the NPT and global security atlarge. The Note proposes ways to narrow the scope of the waiver to prevent further damage to the nuclear nonproliferation regime.
WHEN DUE PROCESS CONCERNS BECOME
DANGEROUS: THE SECURITY COUNCIL’S
1267 REGIME AND THE NEED FOR REFORM
Jared Genser*
Kate Barth**
Abstract: The United Nations Security Council adopted Resolution 1267
in 1999 in response to rising apprehension of a surge of terrorist activity
within Afghan territory. Notably, the Sanctions Committee charged with
enforcing the Resolution provisions did not impose asset freezes, arms
prohibitions, or travel bans on entire nations suspected of supporting the
Taliban. The 1267 regime instead subjected individuals and entities to
these sanctions. Based on information provided by U.N. member states,
such targets found themselves on the Security Council’s terrorist “blacklist,” known as the Consolidated List. The targets were neither warned of
this listing nor afforded a method by which they could effectively appeal
their inclusion. This Article discusses the due process concerns inherent
to the 1267 regime, which have been increasingly emphasized at both the
regional and national court levels, leading to invalidation of some regulations implementing the regime. It then evaluates alternative solutions to
the procedural status quo against a proposed set of criteria, ultimately advocating for an independent tribunal capable of hearing complaints from
targets and issuing binding delisting decisions.
Introduction
In 1999, the United Nations Security Council (U.N.S.C. or Security
Council) adopted Resolution 12671 under its Chapter VII authority,2 in
* B.S., Cornell University 1995; M.P.P., Harvard University 1998; J.D., University of
Michigan 2001. Jared Genser is a partner with DLA Piper LLP (U.S.) and Young Global
Leader of the World Economic Forum. He has taught courses on the U.N. Security Council at the University of Michigan and University of Pennsylvania Law Schools.
** B.A., Brown University 2004; MSc., London School of Economics 2007; J.D., University of Pennsylvania 2010. The authors would like to thank their colleagues and friends
for providing meaningful comments to improve this article.
1 S.C. Res. 1267, pmbl., U.N. Doc. S/RES/1267 (Oct. 15, 1999).
2 When read together, Article 25 of the UN charter (requiring all member states “to
accept and carry out decisions of the Security Council”) and Article 103 of the Charter
(demanding all states defer to their Charter responsibilities over other international obli-
1
2
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[Vol. 33:1
response to concerns over the use of Afghan territory “for the sheltering and training of terrorists and planning of terrorist acts.” This Resolution, which would be strengthened and reaffirmed by subsequent
Resolutions 1333, 1363, 1373, 1390, 1452, 1455, 1526, 1566, 1617, 1624,
1699, 1730, 1735, 1822, and 19043 imposed sweeping sanctions against
the Taliban in the form of travel and arms bans and asset freezes.4 Unlike previous U.N.S.C. sanctions that had blanketed entire nations,
however, these sanctions targeted only those resources “owned or controlled directly or indirectly by the Taliban . . . as designated by the
[Sanctions] Committee [set up by the resolution] . . . .”5 Based on information provided by U.N. member states, this Sanctions Committee
would be responsible for keeping an updated list (Consolidated List) of
targeted individuals and entities. In 2001, the Committee added the
name of Yassin Abdullah Kadi, a Saudi Arabian businessman, who soon
after found his assets summarily frozen.6
Kadi was not alone in finding himself the individual target of the
Security Council’s terrorist “blacklist.”7 To date, the list has contained
the names of over five hundred individuals and entities (targets).8 The
Committee has rarely informed the targets placed on the Consolidated
List of the facts underlying their placement on the list, or even the very
gations) ensure that resolutions made pursuant to the U.N.S.C.’s powers under Chapter
VII are binding on all member states of the U.N. See infra Part I.
3 See generally S.C. Res. 1904, U.N. Doc. S/RES/1904 (Dec. 17, 2009); S.C. Res. 1822,
U.N. Doc. S/RES/1822 ( June 30, 2008); S.C. Res. 1735, U.N. Doc. S/RES/1735 (Dec. 22,
2006); S.C. Res. 1730, U.N. Doc. S/RES/1730 (Dec. 19, 2006); S.C. Res. 1699, U.N. Doc.
S/RES/1699 (Aug. 8, 2006); S.C. Res. 1624, U.N. Doc. S/RES/1624 (Sept. 14, 2005); S.C.
Res. 1617, U.N. Doc. S/RES/1617 ( July 29, 2005); S.C. Res. 1566, U.N. Doc. S/RES/1566
(Oct. 8, 2004); S.C. Res. 1526, U.N. Doc. S/RES/1526 ( Jan. 30, 2004); S.C. Res. 1455, U.N.
Doc. S/RES/1455 ( Jan. 17, 2003); S.C. Res. 1452, U.N. Doc. S/RES/1452 (Dec. 20, 2002);
S.C. Res. 1390, U.N. Doc. S/RES/1390 ( Jan. 28, 2002); S.C. Res. 1373, U.N. Doc.
S/RES/1373 (Sept. 28, 2001); S.C. Res. 1363, U.N. Doc. S/RES/1363 ( July 30, 2001); S.C.
Res. 1333, U.N. Doc. S/RES/1333 (Dec. 19, 2000). These resolutions pertain both to the
targeted sanction 1267 regime and to the subsequently enacted 1373 regime, which extended asset freezes and travel bans to members of any terrorist group.
4 See S.C. Res. 1526, supra note 3, ¶ 1. The 1267 sanctions were later broadened to include “funds and other financial assets of Usama bin Laden and individuals and entities
associated with him as designated by the Committee, including those in the Al-Qaida organization . . . .” S.C. Res. 1333, supra note 3, ¶ 8.
5 S.C. Res. 1267, supra note 1, ¶ 4.
6 See Case T-315/01, Kadi v. Council (Kadi I ), ¶¶ 22–23, 2005 E.C.R. II-3649, 2005 ECJ
EUR-Lex LEXIS 673 (Sept. 21, 2005).
7 See United Nations, Security Council Committee Established Pursuant to Resolution
1267 (1999) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities,
http://www.un.org/sc/committees/1267/information.shtml (last visited Mar. 23, 2010)
(noting that the list holds more than 500 names).
8 See id.
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The Need for Reform of the U.N.S.C.’s 1267 Sanctions Regime
3
fact of their inclusion.9 Moreover, the Security Council has provided no
mechanism for targets to challenge their inclusion either before or after the listing.10 Those targets dissatisfied with the freeze on their assets
or the restriction of their movement can only hope that their state of
residence or citizenship will negotiate with whatever country had recommended their listing (designating state) to reach a mutual agreement to recommend the delisting of the individual. Nevertheless,
should any member of the Sanctions Committee (consisting of representatives of all countries on the Security Council) choose to block the
delisting, the target will remain indefinitely listed.11
Unlike many targets, however, Kadi sought judicial redress for what
he saw as an unfair listing. By 2008, his case had risen to the European
Court of Justice (ECJ), which overruled the prior decision by the Court
of First Instance to uphold the European Union’s regulation giving effect to Resolution 1267.12 Instead, citing due process violations contrary
to the “constitutional guarantee stemming from the [European Community] Treaty as an autonomous legal system,” the ECJ annulled the EU
regulation as it concerned Kadi.13 The judgment tore a hole in member
states’ implementation of the U.N.S.C.’s 1267 anti-terrorist regime and
sparked a firestorm of debate as to the appropriate circumstances under
which regional courts may interfere with the implementation of a binding Security Council resolution on human rights grounds.14
Ironically, it was the international community’s concerns about the
human rights implications of general sanctions that led the Security
Council to implement targeted sanctions.15 The general sanctions
placed on Iraq in the early 1990s had a devastating humanitarian effect
on the people of Iraq.16 As a result, the Security Council increasingly
turned to targeted sanctions as a means of applying pressure on those
9 Cf. Thomas J. Biersteker & Sue E. Eckert, Watson Inst. Targeted Sanctions Project, Brown Univ., Strengthening Targeted Sanctions Through Fair and Clear Procedures 28 (2006), available at http://watsoninstitute.org/pub/Strengthening_Targeted_
Sanctions.pdf [hereinafter Biersteker & Eckert, Targeted Sanctions](discussing the lack
of transparency that exists concerning sources of information about an individual’s listing).
10 Id. at 3–7.
11 Id. at 37.
12 Joined Cases C-402 & C-415/05, Kadi v. Council (Kadi II ), ¶¶ 1–2, 2008 E.C.R. I6351, 2008 ECJ EUR-Lex LEXIS 1954 (Sept. 3, 2008).
13 Id. ¶ 316.
14 Biersteker & Eckert, Targeted Sanctions, supra note 9, at 19–20.
15 See Save the Children, Iraq Sanctions: Humanitarian Implications and Options for the Future, ch. 10 (2002) [hereinafter Save the Children].
16 See id. ch. 2 (detailing the humanitarian toll exacted on Iraqis by the general sanctions).
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responsible for threatening international peace and security while minimizing collateral impact.17 The Security Council’s failure to provide
any due process protections for targets of these new sanctions, however,
has raised a different set of criticisms about its approach.
Whereas the ramifications of sanctions aimed at a particular state
fell almost entirely on the residents of that state, the 1267 regime requires all member states of the United Nations (U.N.) to implement
regulations potentially depriving their own citizens of property rights,
restricting their movement, and barring judicial review.18 For those
states with strong domestic traditions and laws protecting these rights,
such a mandate is extremely troubling. Thus, several international, regional, and domestic tribunals, such as the European Court of Justice,
the European Court of Human Rights, the Human Rights Committee of
the International Covenant on Civil and Political Rights, the Swiss Federal Court, the British House of Lords, the United Kingdom Supreme
Court, and the Federal Court of Canada, have challenged the national
regulations giving effect to certain Security Council resolutions.19 Although many of these tribunals have grudgingly accepted the primacy
of the resolutions under the U.N Charter, judicial discontent has been
mounting. The ECJ’s recent decision in Kadi v. Council (Kadi II ) marks
the first time a regional court has chosen to annul a domestic regulation
implementing a binding Security Council resolution.20 Emboldened by
Kadi II, national courts have likewise begun to invalidate the domestic
regulations that implemented Resolution 1267 obligations in member
states.21
In the face of this mounting criticism, the Security Council has
taken some incremental steps to ameliorate member states’ due process
17 Id.
18 See S.C. Res. 1267, supra note 1, ¶¶ 2, 4.
19 See generally Abdelrazik v. Minister of Foreign Affairs, [2009] F.C. 580 (Can.); A v.
HM Treasury, [2010] UKSC 2, [2010] 2 W.L.R. 378 (U.K.); R (Al-Jedda) v. Sec’y of State
for Def., [2007] UKHL 58, [2008] 1 A.C. 332 (appeal taken from Eng.) (U.K.); Kadi I,
2005 E.C.R. II-3659, 2005 ECJ EUR-Lex LEXIS 673; Kadi II, 2008 E.C.R. I-6351, 2008 ECJ
EUR-Lex LEXIS 1954; Case C-117/06, Möllendorf, 2007 E.C.R. I-8361, 1 C.M.L.R. 11
(2008); Case C-355/04, Segi v. Council, 2007 E.C.R. I-1657, 2007 ECJ EUR-Lex LEXIS 2015
(Feb. 27, 2007); U.N. Human Rights Comm., Sayadi v. Belgium, Commc’n No. 1472/2006,
U.N. Doc. CCPR/C/94/D/1472/2006 (2008); Johannes Reich, Due Process and Sanctions
Targeted Against Individuals Pursuant to U.N. Resolution 1267 (1999), 33 Yale J. Int’l L. 505,
507 n.25 (2008)(discussing Nada v. State Secretariat for Econ. Affairs, Bundesgericht
[BGer] [Federal Court] Nov. 14, 2007, 133 Entscheidungen des Schweizerischen Bundesgerichts [BGE] II 450 (Switz.)).
20 See Kadi II, ¶ 372, 2008 E.C.R. I-6351, 2008 ECJ EUR-Lex LEXIS 1954.
21 See Abdelrazik, F.C. 580 ¶¶ 162–65; HM Treasury, 2 W.L.R. at 408–10.
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The Need for Reform of the U.N.S.C.’s 1267 Sanctions Regime
5
concerns. The first substantive concession came with the Security
Council’s adoption of Resolution 1730.22 This Resolution established a
central office called the focal point, which is entrusted with the tasks of
handling delisting requests from targets by passing along such requests
to the concerned states (the designating state and the state of the petitioner’s residence and citizenship) and informing the petitioner of the
ultimate decision made by the Sanctions Committee.23 Once the focal
point issues a request, the target’s participation in its own delisting is
over. Should any government recommend a target’s delisting, the request is put on the Sanction Committee’s agenda. The Sanctions
Committee is also informed if any government opposes delisting. Unfortunately, if after one month no member of the Sanctions Committee
recommends delisting, the request is considered rejected. Although
Resolution 1730 frees targets from reliance on a state’s initial espousal
of a claim,24 it does not give targets an opportunity to hear the evidence
against them or to present their own case to the Sanctions Committee.25 Additionally, Resolution 1730 does not require a state to explain
why it chose to block an individual’s delisting request.26
Other resolutions have requested that the Sanctions Committee
make “information it considers relevant . . . publicly available”27 or that
it allow individual member states to administer humanitarian exemptions to the asset freeze.28 Resolutions have also asked member states to
include better indentifying information when proposing a name for
the list and to inform individuals of their listing and of the Committee’s
guidelines and humanitarian exemptions.29 In 2008, the Security
Council adopted Resolution 1822, which urged member states to review delisting petitions in a timely manner and to update the Committee on any new developments.30 The Resolution directed the Sanctions
Committee to conduct periodic reviews of targets to ensure the listing
remained appropriate and “[encouraged] the Committee to continue
22 See generally S.C. Res. 1730, supra note 3 (establishing a central office for handling
delisting requests).
23 Id.
24 See Biersteker & Eckert, Targeted Sanctions, supra note 9, at 34–37 (noting that
the biggest problem with delisting may have been the number of requests that never made
it to the Sanctions Committee due to a state’s refusal to espouse a target’s claim).
25 S.C. Res. 1730, supra note 3, app. ¶¶ 5–8.
26 Id. app. ¶¶ 5–6.
27 S.C. Res. 1390, supra note 3, ¶ 5.
28 See S.C. Res. 1452, supra note 3, ¶ 1.
29 See S.C. Res. 1617, supra note 3, ¶¶ 4–5; S.C. Res. 1526, supra note 3, ¶¶ 17–18.
30 S.C. Res. 1822, supra note 3, ¶ 20.
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to ensure that fair and clear procedures exist for placing individuals . . .
on the Consolidated List and for removing them . . . .”31
Most recently, on December 17, 2009, the Security Council adopted
Resolution 1904 which created “an Office of the Ombudsperson, to be
established for an initial period of 18 months . . . .”32 This ombudsperson, performing in “an independent and impartial manner,”33 assists
targeted individuals by conveying their delisting requests to the Sanctions Committee, keeping them informed of general procedure and
decisions made relevant to their case, and ensuring that the Committee’s consideration period is not unduly prolonged.34 In addition, the
ombudsperson aids the Sanctions Committee by soliciting additional
information from and facilitating a dialogue with the petitioner; coordinating inquiries between the interested States, the Committee, and
the information-gathering Monitoring Team; and drafting a Comprehensive Report pursuant to the delisting request, and presenting it in
person to the Committee.35 In effect, Resolution 1904 creates in the
ombudsperson a watchdog over the interests of delisting petitioners,
albeit one without the ability to ensure that Sanctions Committee takes
its observations seriously or ultimately delists the petitioner.36
Despite these positive developments, the fundamental criticism of
the 1267 regime has remained unchanged—that targets have no effective remedy to challenge their inclusion on the Consolidated List.37 Although judges sitting in domestic and regional courts have been sympathetic to these complaints, they have not suggested that protection is
solely the province of domestic or regional courts. Rather, these courts
have implied that, should the Security Council provide a reasonable
means for administrative review of a listing, they would consider the
due process issue remedied.38
31 Id. ¶ 28.
32 S.C. Res. 1904, supra note 3, ¶ 20.
33 Id.
34 See id. annex II.
35 Id.
36 See id.
37 Bardo Fassbender, United Nations, Office of Legal Affairs, Targeted Sanctions and Due Process 5 (2006), available at http://untreaty.un.org/ola/media/info_
from_lc/Fassbender_study.pdf. Although this Article is primarily concerned with the due
process violations stemming from the 1267 regime, similar criticisms have been made of
Security Council resolutions authorizing the detention of alleged terrorists. See, e.g., R (AlJedda) v. Sec’y of State for Def., [2007] UKHL 58, [2008] 1 A.C. 332, 332–33 (appeal taken
from Eng.) (U.K.).
38 See Kadi II, ¶ 319, 2008 E.C.R. I-6351, 2008 ECJ EUR-Lex LEXIS 1954 (“[S]o long as
under that system of sanctions the individuals or entities concerned have an acceptable
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The Need for Reform of the U.N.S.C.’s 1267 Sanctions Regime
7
Now that judicial discontent has reached the level of invalidating
national and regional implementation of a binding Security Council
resolution, the failure to address these due process concerns has created a security crisis. As a result, the present represents a critical moment to reform the 1267 regime. There is no shortage of reform suggestions. Legal commentators over the past decade have argued for
various centralized and decentralized schemes that could solve the due
process problem. This Article evaluates the various factors (due process, a strong counter-terrorist regime, and U.N.S.C. authority) that
must be taken into account in selecting an appropriate review mechanism. It then proposes that the Security Council create an independent
tribunal with the power to hear a target’s case and issue binding delisting decisions.
Part I of this Article explains the legally binding and preeminent
nature of the 1267 regime as a Chapter VII resolution of the Security
Council and describes the rising tide of discontent that has been emanating from regional and national courts. Part II discusses the consequences of these cases, both in terms of security concerns and threats
to the primacy of the Security Council. This section then explains the
due process problems inherent to the current procedure before analyzing a range of suggestions from various legal commentators. Part III
identifies criteria for assessing the viability of alternative solutions.
These proposed criteria include such issues as independence of a decision-maker, accessibility to the target, ability to provide an effective remedy, speed, concern over sharing sensitive information, infringement
on Security Council authority, and the overall political efficacy of the
proposed solution. The aim, of course, is not simply to resolve the due
process problem, but to do so in a manner that does not negatively affect security concerns, either by weakening the 1267 regime or by
threatening the supremacy of the U.N.S.C. The Article concludes with
the argument that an independent tribunal with the ability to hear individual complaints and issue binding decisions is the mechanism that
best balances these concerns.
opportunity to be heard through a mechanism of administrative review forming part of
the United Nations legal system, the Court must not intervene in any way whatsoever.”).
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I. Background
A. The Binding and Preeminent Nature of Certain Chapter VII Resolutions
As the touchstone for understanding the role of U.N. institutions,39 the U.N. Charter serves as the starting point for an analysis of
the impact of Chapter VII resolutions of the Security Council. Article
24 states that members of the U.N. “confer on the Security Council
primary responsibility for the maintenance of international peace and
security . . . .”40 To that end, Article 25 further explains that “[t]he
Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”41
This provision has been interpreted to mean that “decisions” taken under Chapter VII, which are not recommendations, are considered legally binding on all member states.42
The U.N. Charter also provides clear textual guidance that when
the Security Council acts in relation to matters of international peace
and security, its decisions supersede all other international obligations
of member states. Specifically, Article 103 provides: “In the event of a
conflict between the obligations of the Members of the United Nations
under the . . . Charter and their obligations under any other international agreement, their obligations under the . . . Charter shall prevail.”43 In this way, Article 103 functions as a de facto international supremacy clause mandating that a state’s U.N. obligations override its
other international commitments. Furthermore, Article 103 is understood to mean that in determining a State’s conflicting international
obligations, it is not only the Charter but also any obligation under the
Charter that prevails.44 Article 103 is likewise memorialized in the Vienna Convention on the Law of Treaties, which under Article 30 states:
“Subject to Article 103 of the Charter of the United Nations, the rights
and obligations of States parties to successive treaties relating to the
same subject matter shall be determined in accordance with the follow39 See Comm’n to Study the Org. of Peace, The United Nations: The Next Twenty-Five Years 2 (1970).
40 U.N. Charter art. 24, para. 1.
41 Id. art. 25.
42 The Charter of the United Nations: A Commentary 457 (Bruno Simma ed., 2d
ed. 2002). There are also decisions of the Security Council taken under other chapters of
the U.N. Charter which are binding, but the focus of this Article is exclusively on Chapter
VII sanctions-related resolutions.
43 U.N. Charter art. 103.
44 The Charter of the United Nations, supra note 42, at 1292.
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The Need for Reform of the U.N.S.C.’s 1267 Sanctions Regime
9
ing. . . .”45 Thus, Article 30 reinforces the proposition that each state’s
obligations under the U.N. Charter supersede its commitments under
other international treaties, protocols, and mechanisms.
Chapter VII of the Charter authorizes the Security Council to
make recommendations or decisions to address that which the Council
determines to be a threat to the peace, a breach of the peace, or an act
of aggression.46 Not all Chapter VII resolutions are per se legally binding, however.47 There is a three-pronged test to determine whether a
Chapter VII Resolution is binding: (1) if there is a determination under
Article 29 of the existence of a threat to the peace, breach of the peace,
or act of aggression; (2) if there is explicit evidence of action under
Chapter VII; and (3) if there is evidence that the Council has made a
decision within the meaning of Article 25, which provides that “the
Members of the UN agree to accept and carry out the decisions of the
Security Council in accordance with the present Charter.”48
Resolution 1267 satisfies these three criteria. First, there has been a
“determination” that the failure of the Taliban to stop providing “sanctuary and training for international terrorists and their organizations,”
as required by paragraph 13 of Resolution 1214, constitutes a “threat to
international peace and security.”49 Second, the Resolution explicitly
states the Security Council is “acting under Chapter VII of the Charter
of the United Nations.”50 Third, in the operative section of the Resolution, the Security Council unequivocally decided that “all States shall
. . . (a) [d]eny permission for any aircraft to take off from or land in
their territory . . . [if from the] Taliban . . . [and] (b) [f]reeze funds
and other financial resources [from] . . . the Taliban, as designated by
the [Sanctions] Committee . . . .”51 Therefore, it is indisputable that the
Chapter VII resolution is binding on all member states of the U.N.
So why is the binding nature of Resolution 1267 a problem? In
short, consistent with the requirements of Articles 25 and 103, all states
must implement the Resolution 1267 sanction regime even if the mini45 Vienna Convention on the Law of Treaties art. 30, para. 1, May 23, 1969, 1155
U.N.T.S. 331.
46 U.N. Charter, arts. 39–51.
47 See Sir Michael Wood, Senior Fellow, Lauterpacht Ctr. for Int’l Law, Univ. of Cambridge, First Lecture at the Lauterpacht Centre for International Law: The Legal Framework of the Security Council, ¶ 31 (Nov. 7, 2006) available at http://www.lcil.cam.
ac.uk/Media/lectures/pdf/2006_hersch_lecture_1.pdf.
48 Id. ¶¶ 38–39.
49 See S.C. Res. 1267, supra note 1, ¶ 4.
50 Id.
51 Id.
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mal due process protections for targets are in flagrant violation of a
state’s other binding international or regional legal obligations, such as
those enshrined in the International Covenant on Civil and Political
Rights, African Charter on Human and People’s Rights, American Convention on Human Rights, or European Convention on Human
Rights.52
B. Increasing Judicial Discontent
Regional and domestic courts have become increasingly more sympathetic to claims arising from a target’s placement on the Consolidated
List over the past several years. European courts have tended to serve as
the fora for such cases given Europe’s strong domestic and regional laws
protecting human rights.53 Since 2005, courts have increasingly challenged the idea that Security Council resolutions are unbounded by any
law, while simultaneously upholding resolutions’ primacy over international law and the domestically-implemented regulation in question.54
By the end of 2008, however, the ECJ was bold enough to challenge the
enforcement of a binding Security Council resolution by annulling the
contested European regulation. Subsequent 2009 and 2010 decisions in
courts on both sides of the Atlantic upheld the primacy of targeted individuals’ rights over the domestic regulations and actions intended to
52 See generally U.N. Charter arts. 25, 103; International Covenant on Civil and Political
Rights, Dec. 19, 1966, S. Exec. Doc. E, 95-2 (1978), 999 U.N.T.S. 171 [hereinafter ICCPR];
African Charter on Human and People’s Rights, June 27, 1981, 1520 U.N.T.S. 217; American Convention on Human Rights, Nov. 21, 1969, S. Treaty Doc. No. 95-21 (1969), 1144
U.N.T.S. 143; European Convention on Human Rights, Sept. 3, 1953, 213 U.N.T.S. 221.
53 See Gráinne de Búrca, The European Court of Justice and the International Legal Order After Kadi, 51 Harv. Int’l L.J. 1, 3 (2010) (noting that the EU sees itself as a “virtuous international actor” with an ambition “to carve out a distinctive international role for itself as a
‘normative power’ committed to effective multilateralism under international law”).
54 See generally R (Al-Jedda) v. Sec’y of State for Def., [2007] UKHL 58, [2008] 1 A.C.
332 (appeal taken from Eng.) (U.K.); Kadi v. Council (Kadi II), 2008 E.C.R. I-6351, 2008
ECJ EUR-Lex LEXIS 1954; Case C-117/06, Möllendorf, 2007 E.C.R. I-8361, 1 C.M.L.R. 11
(2008); Case C-355/04, Segi v. Council, 2007 E.C.R. I-1657, 2007 ECJ EUR-Lex LEXIS 2015
(Feb. 27, 2007); Reich, supra note 19 (discussing Nada, 133 BGE II 450). Article 103 of the
U.N. Charter requires that “[i]n the event of a conflict between the obligations of the
Members of the United Nations under the present Charter and their obligations under
any other international agreement, their obligations under the present Charter shall
prevail.” U.N. Charter art. 103. Article 25 reads: “The Members of the United Nations
agree to accept and carry out the decisions of the Security Council in accordance with the
present Charter.” U.N. Charter art. 25. Taken together, these articles mandate that
member state obligations to carry out U.N.S.C. resolutions trump other international law
obligations.
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carry out member states’ binding obligations under Security Council
resolutions.55
As a starting point for this analysis, it is important to understand
the legal limits of Security Council action. The Security Council, like any
organ of the U.N., is bound by law—and specifically the framework of
powers and functions articulated for it in the U.N. Charter.56 Even
though acts of the Security Council are not justiciable, it must nevertheless abide by these rules.57 Additionally, the Security Council cannot
contravene preemptory norms of international law (jus cogens).58 These
fundamental principles circumscribing the power of the Security Council have also been recognized by the tribunals that have examined the
validity of the 1267 regime.
1. Security Council Bound by Jus Cogens
The 2005 case, Kadi I, was the first to significantly challenge the
1267 regime.59 At first glance, the ruling of the Court of First Instance
55 Abdelrazik v. Minister of Foreign Affairs, [2009] F.C. 580 ¶¶ 162–65 (Can.); A v. HM
Treasury, [2010] UKSC 2, [2010] 2 W.L.R. 378, 408–10 (U.K.). It is also worth noting that
there have been more than thirty court cases challenging the 1267 regime since its inception,
and these cases are not limited to Europe and North America, but also include challenges in
Turkey and Pakistan. See Thomas J. Biersteker & Sue E. Eckert, Watson Inst. Targeted
Sanctions Project, Brown Univ., Addressing Challenges to Targeted Sanctions: An
Update of the "Watson Report" 47–48 (2009), available at http://www.watsoninstitute.
org/pub/2009_10_targeted_sanctions.pdf [hereinafter Biersteker & Eckert, Watson Report Update].
56 See, e.g., Conditions of Admission of a State to Membership in the United Nations,
Advisory Opinion, 1948 I.C.J. 57, 64 (May 28). The opinion states:
The political character of an organ cannot release it from the observance of
the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment. To ascertain whether an organ
has freedom of choice for its decisions, reference must be made to the terms
of the constitution.
Id.
57 See U.N. Charter art. 24, para. 2; see, e.g., Armed Activities on the Territory of the
Congo (Dem. Rep. Congo v. Rwanda), 2006 I.C.J. 6, 53 (Feb. 3) (observing that “[w]hether
or not States have accepted the jurisdiction of the Court, they are required to fulfill their
obligations under the Charter of the United Nations and other rules of international law”).
58 See Kamrul Hossain, The Concept of Jus Cogens and the Obligation Under the U.N. Charter, 3 Santa Clara J. Int’l. L. 72, 96–97 (2005); Wood, supra note 47, ¶ 6.
59 See generally Kadi I, 2005 E.C.R. II-3659, 2005 ECJ EUR-Lex LEXIS 673. Jus cogens is a
principle of international law so fundamental that no nation or institution may ignore or
attempt to contractually circumvent it through treaties. See The Fundamental Rules of
the International Legal Order: Jus Cogens and Obligations Ergo Omnes 29 (Christian Tomuschat & Jean-Marc Thouvenin eds., 2006). Classic examples of jus cogens norms
include the prohibition of genocide and participation in the slave trade. See id. at 99.
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(CFI) of the ECJ appears deferential to the authority of the Security
Council.60 The court held that U.N. member states’ obligation to respect Security Council resolutions under customary law and under Article 103 of the U.N. Charter, “clearly prevail[s] over every other obligation of domestic law or of international treaty law . . . .”61 Thus, the
court did not even have “the jurisdiction to review indirectly the lawfulness” of a U.N.S.C. decision.62
After concluding that it had no jurisdiction to review a Security
Council resolution, however, the court further declared:
None the less [sic], the Court is empowered to check, indirectly, the lawfulness of the resolutions of the Security Council
in question with regard to jus cogens, understood as a body of
higher rules of public international law binding on all subjects of international law, including the bodies of the United
Nations, and from which no derogation is possible.63
Yet, despite reaffirming this well-understood limit on Security Council
action, the court ultimately found that, in the instant case, the Security
Council Resolutions had not actually breached jus cogens.64
This holding, although remaining deferential to the Resolutions at
hand, broke with earlier European cases that dealt with a Security
Council resolution’s effect on an individual. For example, in Bosphorus
Hava Yollari Turizm v. Minister for Transport, Energy and Communications,
Irish authorities impounded a Yugoslavian aircraft.65 The aircraft had
been leased to a Turkish company pursuant to an EC regulation that
formed part of the U.N. sanctions regime against the Former Republic
of Yugoslavia.66 In this case, the ECJ held that, when viewed in light of
the aims intended by the U.N. resolution, the impounding of the air60 See Kadi I, ¶ 181, 2005 E.C.R. II-3659, 2005 ECJ EUR-Lex LEXIS 673.
61 Id.
62 Id. ¶ 221.
63 Id. ¶ 226.
64 Id. ¶ 275. The court found that, with regard to the freezing of Kadi’s funds, jus cogens only prohibits the arbitrary deprivation of property, and Kadi had not been arbitrarily
nor permanently deprived of his assets. See id. ¶¶ 243–51. The alleged breach of the right
to be heard did not violate jus cogens as the Sanctions Committee offered a mechanism for
the re-examination of individual cases, albeit only through national espousal. Id. ¶ 261–62.
Finally, as regarding the breach of the right to effective judicial review, the court found
that the right of access to courts is not absolute and thus not a right guaranteed by jus
cogens. Id. ¶¶ 287, 291.
65 See Case C-84/95, Bosphorus Hava Yollari Turizm v. Minister for Transp., Energy &
Commc’ns, ¶ 2, 1996 E.C.R. I-3953 ( Judgment).
66 Id. ¶ 1 (Opinion of Advocate General).
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craft could not “be regarded as inappropriate or disproportionate.”67
Nowhere did the ECJ imply that it could invalidate regulations implementing a Security Council resolution. Furthermore, in the cases of
Behrami v. France and Saramati v. France,68 which revolved around a
wrongful death and detainment attributable to U.N. peacekeeping
forces in Kosovo, the European Court of Human Rights found that “the
[European] Convention[on Human Rights] cannot be interpreted in a
manner which would subject the acts and omissions of contracting parties, which are covered by UNSC Resolutions and occur prior to or in
the course of such missions, to the scrutiny of the Court.”69
The reasoning of the CFI in Kadi proved influential. In 2007, the
Swiss Federal Court issued a similar decision on a blacklisting case.
Youseff Mustafa Nada was an Egyptian-born Italian national who had
been put on the Consolidated List due to his involvement with Al
Taqwa Management SA, a widespread financial network suspected of
supporting terrorist activities.70 At the time of his listing, Nada was living in Campione d’Italia, “a small Italian enclave roughly half a square
mile in size fully surrounded by Swiss territory.”71 As a result of his
placement on the Consolidated List, Nada was restricted from leaving
Campione d’Italia and his assets were frozen.72 After a three-year investigation into his alleged terrorist connections terminated, Nada filed a
petition with the Swiss domestic agency responsible for the enforcement of sanctions.73 The agency dismissed the petition, and the case
eventually ended up in the Swiss Federal Supreme Court.74
Ultimately, the Swiss Federal Supreme Court also dismissed Nada’s
petition, pointing to its member state obligation to enforce the resolutions of the Security Council.75 Just like the CFI in Kadi, however, the
court held that it could annul implementing regulations when and if
67 Id. ¶ 26 ( Judgment).
68 Behrami v. France, Saramati v. France, App. Nos. 71412/01, 78166/01, 45 Eur. H.R.
Rep. SE10 (2007). Behrami concerned the death and injury of two children in Kosovo who
unknowingly played with undetonated cluster bomb units under the control of Kosovo
Force (KFOR) units. See id. ¶¶ 5–7. Saramati dealt with the prolonged detention of an Albanian man under suspicion for attempted murder and illegal possession of a weapon in
Kosovo by the KFOR. See id. ¶¶ 8–17.
69 Id. ¶ 149 .
70 See Reich, supra note 19, at 507–08.
71 Id. at 507.
72 Id. at 508.
73 Id.
74 Id.
75 Id.
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the Security Council resolution clashed with jus cogens norms.76 Unfortunately for Nada, the court did not find that his frozen assets and containment to a half-square mile qualified as a violation of jus cogens.77
The CFI’s decision in Kadi and a Swiss Federal Supreme Court decision marked the first instances in which domestic and regional courts
affirmed the heretofore theoretical limitations on the Security Council’s powers in the context of the 1267 regime.78 Moreover, not only did
these courts hold that jus cogens bound the U.N.S.C., but they also reaffirmed that a regional or domestic courts had the jurisdictional competence to determine whether this boundary had been breached. Although these courts ultimately found that the Resolutions in question
did not breach jus cogens and upheld the implementing regulations,
their decisions put the Security Council on notice that the 1267 regime
was under scrutiny.
2. Reaffirming the Importance of Fundamental Rights
After the CFI and the Swiss Federal Supreme Court decisions, a
number of cases followed which, although not purporting to restrict
the U.N.S.C.’s resolution-making authority, still very much emphasized
the importance of honoring due process rights. The ECJ heard another
listing case, albeit one stemming not from the 1267 Resolution regime,
but rather from the obligations imposed on states by Resolution 1373.79
Resolution 1373 was another anti-terrorism measure which called upon
states to freeze the funds of any terrorist or terrorist sympathizer.80
Unlike Resolution 1267 and its progeny, Resolution 1373 allowed individual member states to list and delist their own nationals without a
U.N. entity maintaining a Consolidated List.
In response to this Resolution, the European Union adopted a
Common Position which listed Segi, a Spanish group purportedly associated with Basque terrorists, as an entity whose assets were to be fro-
76 See Reich, supra note 19, at 508.
77 See id.
78See Búrca, supra note 53, at 23, Reich, supra note 19, at 508 (discussing Nada, 133
BGE II 450).
79 See Segi v. Council, 2007 E.C.R. I-1657, 2007 ECJ EUR-Lex LEXIS 2015 (Feb. 27,
2007).
80 See S.C. Res. 1373, supra note 3, ¶ 1. Resolution 1373 targeted all “persons who
commit, or attempt to commit, terrorist acts or participate in or facilitate the commission
of terrorist acts,” whereas the 1267 regime targeted only the Taliban and terrorists connected to Al-Qaida. See id.; S.C. Res. 1267, supra note 1, ¶ 4(b).
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zen.81 When Segi brought its complaint over the listing to the ECJ, the
court, in Segi v. Council, noted that member states of the European Union must enable “natural and legal persons to challenge before the
courts the lawfulness of any decision or other national measure relating
to the drawing up of an act of the European Union or to its application
to them and to seek compensation for any loss suffered.”82 Nevertheless, after stating that judicial protection must be available to those affected by acts of the European Union (here, the adoption of a Common Position implementing Resolution 1373), the court proceeded to
hold that it did not have the jurisdiction to hear the complaint at hand
because it could not “create a legal remedy not provided for by the applicable texts.”83 Thus, while reaffirming that the right to court access is
a fundamental right, the court simultaneously dodged the question of
whether a regulation that did not grant a remedy for a potential breach
of rights is invalid.84
Later that same year, the ECJ also heard the Möllendorf case, in
which a 1267 listing imposed some unforeseen consequences on a third
party.85 This case concerned a contract of sale for land conducted between two parties in which the money had already been paid to the
sellers when the buyer was blacklisted.86 Under German law, ownership
had not yet transferred because the transaction had not been registered in the Land Registry.87 Since the asset freeze on the buyer prohibited registration, the issue arose as to whether the sales transaction had
to be reversed, as was usual procedure under German law.88 The sellers,
however, argued that being forced to repay the sales price would disproportionately limit their right to property.89
The ECJ ultimately concluded that it was for the German authorities to determine whether a “disproportionate infringement of the
right to property” had occurred, as the sellers contended, and, if it had,
“to apply the national legislation in question, so far as it is possible, in
such a way that the requirements flowing from Community law are not
81 See Segi, ¶¶ 1–3, 2007 E.C.R. I-1657, 2007 ECJ EUR-Lex LEXIS 2015. The Spanish
High Court had also declared Segi’s activities illegal and ordered incarceration for several
of Segi’s leaders. See id. ¶ 9.
82 Id. ¶ 56.
83 Id. ¶¶ 60, 61.
84 See id. ¶ 60.
85 See generally Case C-117/06, Möllendorf, 2007 E.C.R. I-8361, 1 C.M.L.R. 11 (2008).
86 See id. ¶¶ 22–29.
87 See id. ¶ 52.
88 See id. ¶ 59, 62.
89 See id. ¶¶ 22–40.
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infringed.”90 Much like its analysis in Segi, the court did not put the legality of the 1267 sanction regime at stake but rather concentrated on
the scope of the implementing measures. Once again, the court sidestepped examining the Resolution itself while still managing to highlight the importance of protecting an individual’s rights.
Not all courts were as protective of fundamental rights in the face
of a binding Security Council resolution, given the U.N. Charter's Article 103 supremacy clause. In R (Al-Jedda) v. Secretary of State for Defence,
for example, the British House of Lords found that Resolution 1546,
permitting the Multi-National Force operating in Iraq to detain individuals for reasons of security, prevailed over the United Kingdom’s obligations to honor due process rights guaranteed under the European
Convention on Human Rights.91 The House of Lords qualified the supremacy of Resolution 1546, however, holding that Security Councilprovided authority must be exercised in such a way that a detainee’s
rights are not infringed to a greater degree than necessary in such a detention.92 Baroness Hale of Richmond concluded that, although a Security Council resolution might overrule a British commitment to the due
process rights guaranteed in the European Convention, “[t]he right was
qualified, but not displaced.”93
Taken together, these cases reaffirm that binding Security Council
resolutions do not permanently overrule member states’ commitments
to human rights. On the contrary, they must be interpreted only to
qualify the right to the smallest extent possible.
3. Holding States Responsible
Beyond the outlying jus cogens limitation on Security Council action and reaffirmation of state obligations to due process rights, courts
have recently begun to hold states liable for their actions taken in conformity with Security Council resolutions. In 2008, the Human Rights
Committee (HRC), established by the International Covenant on Civil
and Political Rights (ICCPR),94 heard a blacklisting complaint for violations of the treaty from two Belgian citizens, Nabil Sayadi and Patricia
90 Id. ¶ 79.
91 See R (Al-Jedda) v. Sec’y of State for Def., [2007] UKHL 58, [2008] 1 A.C. 332, 354–
355 (appeal taken from Eng.) (U.K.).
92 See id. at 355.
93 See id. at 376.
94 ICCPR, supra note 52, 999 U.N.T.S. at 179.
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Vinck.95 The two had been placed on the Consolidated List based on
their leadership positions in the Fondation Secours International, purportedly the European branch of an American association which had been
on the sanctions list for several years.96 When Belgium proposed their
names to the Sanctions Committee, Sayadi and Vinck had not been
convicted of any terrorist activity. Moreover, during the period of
criminal investigation against Sayadi and Vinck, Belgium refused their
petition to take their delisting request to the Sanctions Committee until
a domestic court finally ordered it do so.97
The HRC determined that although it could not consider the alleged violation of other instruments of the U.N. Charter, it was
competent to consider the compatibility with the Covenant of
the national measures taken to implement a resolution of the
United Nations Security Council. It [was] the duty of the
Committee, as guarantor of rights protected by the Covenant,
to consider to what extent the obligations imposed on the
State party by the Security Council resolutions may justify the
infringement . . . .98
Thus, granting itself the power to review if a state’s action was in conformity with the ICCPR even when acting under binding Security
Council resolutions, the Committee held that Belgium was liable for
the initial inappropriate listing of Sayadi and Vinck.99
In spite of Belgium’s argument that it was required to respect
Resolution 1267 and report the names of its suspected terrorist supporters under Article 103, the Committee found that the listing was
95 See U.N. Human Rights Comm., Sayadi v. Belgium, Commc’n No. 1472/2006, ¶¶ 2.3–
3.1., U.N. Doc. CCPR/C/94/D/1472/2006 (2008). Nabil Sayadi and Patricia Vinck claimed
violations of Articles 2, 4, 12, 14, 15, 17, 18, 22, 26, and 27 of the Covenant. Id. ¶ 3.1.
96 See id. ¶ 2.2.
97 See id. ¶ 2.5. A domestic court also dismissed the case against Sayadi and Vinck after
three years of a criminal investigation. See id. ¶ 2.6.
98 Id. ¶ 10.6.
99 See id. ¶ 3.4. The Committee stated:
Respect for the presumption of innocence, the right to an effective remedy,
and the right to a procedure with all due structural and functional guarantees
have been violated. The presumption of innocence had been flouted by the
Belgian State’s proposal to place the authors’ names on the Sanctions Committee list without “relevant information” in breach of article 14, paragraph 2
of the Covenant.
Id.
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premature and therefore illegal.100 Consequently, Belgium was responsible to do everything in its power to remove the petitioners from the
Consolidated List and to give them some form of compensation.101 Furthermore, Belgium was “also obliged to ensure that similar violations
do not occur in the future.”102
In effect, this decision amounted to a finding that a national regulation’s foundation in a Chapter VII U.N.S.C. resolution does not entirely shield the state from its other international legal obligations. Indeed, Belgium was held to account for having too eagerly complied
with the 1267 regime. Nevertheless, the Committee claimed their findings were not an unabashed attack on the Security Council’s authority,
although the several Committee dissenters disagreed.103 The HRC explicitly stated that, despite the chilling effect that imposing liability for a
premature listing might have on states’ compliance with Resolution
1267’s demand for member states to be active in listing suspected AlQaida supporters, “there is nothing in this case that involves interpreting a provision of the Covenant as impairing the provisions of the
Charter of the United Nations.”104
As rebellious as holding a member state liable for an action taken
in conformity with a U.N.S.C. resolution might seem, this decision was
probably overshadowed by that of the ECJ, when it revisited the Kadi
case in 2008 in Kadi v. Council (Kadi II ). The court’s first break from
the CFI’s decision came with the holding that “obligations imposed by
an international agreement cannot have the effect of prejudicing the
constitutional principles of the EC Treaty, which include the principle
that all Community acts must respect fundamental rights . . . .”105 While
still noting the primacy of a Security Council resolution pursuant to
100 See id. ¶ 8.1 (noting Belgium’s argument that “under Article 103 of the Charter,
Charter obligations prevail over any others, a State Member of the United Nations carrying out its obligations under the Charter cannot incur liability under the Covenant”).
101 See U.N. Human Rights Comm., Sayadi v. Belgium, Commc’n No. 1472/2006, ¶ 12,
U.N. Doc. CCPR/C/94/D/1472/2006 (2008).
102 Id. ¶ 13.
103 See id. ¶ 10.2. Sir Nigel Rodley, Mr. Ivan Shearer, and Ms. Iulia Antoanella Motoc
wrote: “[U]nless the Committee believes that the State party’s mere compliance with the
Security Council listing procedure (in absence of bad faith by the State party or overstepping of the Security Council’s powers) is capable of itself violating the Covenant, it is not
clear how the authors can still be considered victims . . . .” Id. app. A. (Rodley, dissenting in
part). Ms. Ruth Wedgwood commented, “[t]he authors are complaining about the actions
and decisions of the United Nations Security Council, not the acts of Belgium.” Id. app. A
(Wedgwood, dissenting).
104 Id. ¶ 10.3.
105 Kadi II, ¶ 285, 2008 E.C.R. I-6351, 2008 ECJ EUR-Lex LEXIS 1954.
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member states’ Article 103 obligations, the court denied that a decision
“that a Community measure intended to give effect to such a resolution
is contrary to a higher rule of law in the Community legal order [would
entail] any challenge to the primacy of that resolution in international
law,” despite the fact that such a decision could place the individual
member states comprising the European Community (EC) in violation
of international law.106 Just a few paragraphs later, the court also stated
that there was no basis in the EC Treaty for granting immunity from
jurisdiction for a Community regulation solely based on the primacy of
member states’ obligations at the level of the international law.107
Ultimately, the ECJ’s reasoning led it to strongly conclude:
the review by the Court of the validity of any Community
measure in light of fundamental rights must be considered to
be the expression, in a community based on the rule of law, of
a constitutional guarantee stemming from the EC Treaty as an
autonomous legal system which is not to be prejudiced by an
international agreement.108
Interestingly enough, however, the ECJ declared that “so long as under
that system of sanctions the individuals or entities concerned have an
acceptable opportunity to be heard through a mechanism of administrative review forming part of the U.N. legal system, the court must not
intervene in any way whatsoever.”109 Nevertheless, as such a mechanism
was not in place, the court annulled the contested regulation as it concerned Kadi and potentially placed the twenty-seven member states of
European Community in breach of international law.110
Two further cases elevating the importance of individual rights
above a member state’s obligations to implement Security Council resolutions followed closely on the heels of Kadi II. In June 2009, the Canadian Federal Court heard Abdelrazik v. Minister of Foreign Affairs, a case
that revolved around a Canadian citizen’s inability to return to Canada
based on the travel restrictions imposed on him by virtue of his inclusion on the Consolidated List.111 Abdelrazik, a Sudanese-born naturalized Canadian citizen, had been repeatedly detained without charge by
106 Id. ¶ 288.
107 Id. ¶ 300.
108 Id. ¶ 316.
109 Id. ¶ 319.
110 See id. ¶ 368–69.
111 Abdelrazik v. Minister of Foreign Affairs, [2009] F.C. 580, ¶¶ 1–4, 23 (Can.).
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Sudanese authorities while on a trip to Sudan.112 After each detention,
Abdelrazik attempted to return to Canada, but each of his attempts
failed, in part due to resistance by Canadian authorities hesitant to allow his return.113 The matter was further complicated by the asset and
travel ban placed on Abdelrazik following his 2006 inclusion on the
Consolidated List.114
Abdelrazik brought his case to court, contending that the Canadian government violated section 6(1) the Canadian Charter of Rights
and Freedoms, which guarantees Canadian citizens the right to enter
Canada.115 In response, the Canadian government argued that “it is not
as a consequence of any of Canada’s actions that Mr. Abdelrazik has
been prevented from entering Canada; rather it is as a consequence of
his listing by the 1267 Committee as an associate of Al-Qaida.”116 Accordingly, the government suggested it could not help Abdelrazik return without violating its obligations under Security Council resolutions, in particular, under the theretofore most recent resolution in the
1267 regime, Resolution 1822.117
The Canadian Federal Court did not find this argument persuasive; rather, the court interpreted Resolution 1822 such that it would
allow Abdelrazik to return without placing Canada in breach.118 First,
noting that the travel ban of Resolution 1822 permits states to allow
entry to listed individuals who are citizens of that state,119 Justice Russel
Zinn defined the term “territory” as used in the Resolution to exclude
airspace over the other countries that a returning Abdelrazik would
have to fly through,120 thus interpreting “the UN travel ban [to present]
no impediment to Mr. Abdelrazik returning home to Canada.”121 Furthermore, the Justice concluded that the exception to the travel and
asset ban provided in Resolution 1822 for the “fulfilment of a ‘judicial
process’” was broad enough to include a measure of execution ordered
by the court.122 Under this expanded definition, a court order requiring the Canadian government to allow Abdelrazik to return would not
112 Id. ¶¶ 9–22.
113 Id. ¶¶ 17–22.
114 Id. ¶ 23.
115 Id. ¶ 42.
116 Id. ¶ 44.
117 Abdelrazik, F.C. 580, ¶ 44–49.
118 Id. ¶ 51.
119 Id. ¶ 57.
120 Id. ¶¶ 121–24.
121 Id. ¶ 129.
122 Id. ¶¶ 162–65.
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place the government in breach of the Resolution.123 By defining away
any potential obstructions under the 1267 regime to Abdelrazik’s return, Justice Zinn was therefore able to find that “[t]here is no impediment from the UN Resolution to Mr. Abdelrazik being repatriated
to Canada” and to demand that the government provide Abdelrazik
with a passport, ticket, and an escort back.124
Justice Zinn’s interpretation of Resolution 1822 allowed him to
safeguard the individual’s rights without explicitly placing his country
in breach of its international obligations.125 Again, this case exemplifies
a court’s attempt to emphasize human rights in the face of seeminglycontradictory international obligations without directly defying the Security Council regulation.126 Presumably, however, a direct challenge to
this decision would materialize if the Security Council were to interpret
the exemptions to Resolution 1822 contrary to the Canadian Federal
Court. In short, Justice Zinn’s confidence in his own interpretation of
the Resolution’s terms returned the question of reform back to the Security Council’s court; if left unaddressed, the 1267 regime’s implementation could splinter across lines of national interpretation.
A v. HM Treasury, a case adjudicated by the new Supreme Court of
the United Kingdom (U.K. Supreme Court), is the most recent case to
address U.K. laws implementing the 1267 regime.127 In determining
whether the national regulations placing asset and travel bans on the
targeted individuals were unlawful, the court explicitly considered both
the Kadi II and the Abdelrazik holdings128 before concluding that R (AlJedda) v. Secretary of State for Defence 129 had established precedent “that
article 103 leaves no room for any exception, and that the [European]
Convention rights fall into the category of obligations under an international agreement over which obligations under the [U.N.] Charter
must prevail.”130 The court refused to let the inquiry end there, however, and suggested that Al-Jedda “leaves open for consideration how the
position may be regarded under domestic law.”131 Ultimately, the court
held that the targeted individual “is entitled to succeed on the point
123 Abdelrazik, F.C. 580, ¶¶ 156, 160, 165.
124 Id.
125 Id. ¶¶ 162–65.
126 Id.
127 A v. HM Treasury, [2010] UKSC 2, [2010] 2 W.L.R. 378, 378–80 (U.K.).
128 Id. at 408–10.
129 R (Al-Jedda) v. Sec’y of State for Def., [2007] UKHL 58, [2008] 1 A.C. 332 (appeal
taken from Eng.) (U.K.).
130 HM Treasury, 2 W.L.R. at 411–12.
131 Id. at 412.
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that the regime to which he has been subjected has deprived him of
access to an effective remedy.”132 The implementing regulations were
quashed on the grounds they violated the 1946 United Nations Act.133
This statute provides the executive in the United Kingdom discretion to
adopt regulations outside of parliamentary scrutiny when it acts to implement certain mandates of the U.N.S.C.,134 but such regulations
“must be either ‘necessary’ or ‘expedient’ to enable those measures to
be ‘applied’ effectively.”135
Interestingly, in finding that the targeted individuals were impermissibly denied judicial access, the majority explicitly considered
whether the recently enacted Resolution 1904, establishing the ombudsperson’s office, remedied prior due process concerns.136 After discussing the continuing problems with transparency, listing, and delisting, the court concluded that “[w]hile these improvements are to be
welcomed, the fact remains that there was not when the designations
were made, and still is not, any effective judicial remedy.”137 Unfortunately for those concerned with maintaining the primacy of Security
Council resolutions, it seems that Resolution 1904’s attempt to allay
national court concerns over due process has not turned back the rising tide of judicial discontent. Indeed, it is worth noting that the U.K.
Supreme Court did not even discuss in depth the fact that quashing the
domestic regulations could place the state in breach of its Security
Council obligations.138 Instead, the court seemed more concerned with
protection of individual rights than its potential violation of international law.139
Furthermore, the due process deficiencies of the 1267 regime have
begun to attract the attention of legislators as well as judges. On March
1, 2010, the Swiss Parliament’s Foreign Affairs Committee adopted a
proposal over the objection of the Swiss Foreign Minister urging the
Swiss government to inform the Security Council it intended to refuse
to apply financial sanctions to any targeted individual who has not been
given judicial access after three years, was unable to appeal his or her
listing in front of a judicial body, and has not had any further accusa132 Id. at 414.
133 Id. at 400.
134 Id. at 386, 400, 414.
135 United Nations Act, 1946, 9 & 10 Geo. 6, c. 45, § 1 (U.K.).
136 HM Treasury, 2 W.L.R. at 413–14.
137 Id.
138 See generally id.
139 See id. at 407–15.
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tions made against him or her.140 Clearly, courts and legislators emboldened by Kadi II will require more than the newly-established ombudsperson’s office to satisfy their due process concerns.
II. Discussion
A. Consequences of the Recent Decisions
This stream of recent decisions has left both the validity and the
efficacy of the 1267 regime on rockier ground than at any point since
its adoption in 1999. For several years, the scope of customary law with
respect to due process has been broadening to include actions by international organizations that affect individuals.141 This trend, as well as
the fact that the U.N. itself has substantially contributed to the development of international human rights law, has led to the expectation
that the U.N. will observe basic standards of due process.142 The recent
blacklisting decisions will only contribute to this expectation and will
perhaps encourage other domestic or regional courts to issue their own
challenges to the U.N.S.C. The real danger, of course, lies not in the
fact that other courts might choose to annul resolution-implementing
regulations based on that state’s higher standards of human rights protection, but rather that courts will use the Kadi II precedent “to assert
their local understandings of human rights and their particular constitutional priorities over international norms . . . .”143 A court could disregard a UN resolution not because it falls short of domestic human
rights guarantees but simply because it contradicts other domestic legal
principles.
Practically speaking, after these recent decisions, nations may be
unwilling to implement national or regional regulations that effectuate
U.N.S.C. resolutions concerning sanctions. This unwillingness alone
could result in a major gap in the coverage of the 1267 regime, particularly in light of the asset-freezing and travel-banning requirements of the
140 See Rapport de la Commission de Politique Extérieure du Parlement Suisse
(Report of the Foreign Affairs Commission of the Swiss Parliament), Les Fondements de Notre Ordre Juridique Court-circuités par l’ONU (The Foundations of
Our Judicial Order Short-circuited by the United Nations) (2010), http://www.
parlament.ch/afs/data/f/bericht/2009/f_bericht_n_k4_0_20093719_0_20100301.htm.
141 Fassbender, supra note 37, at 6–7 (“[A] trend can be perceived widening the scope
of customary law in regard to due process to include direct ‘governmental’ action of international organizations vis-à-vis individuals.”). Fassbender notes that a contributing factor to this trend has been the law of the European Community. Id.
142 See id. ¶ 6.
143 See Búrca, supra note 53, at 42.
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Resolutions. Those concerned that their names could appear on the
blacklist could move their assets (or perhaps even their persons) to noncomplying nations. When that group of nations is the European Community, known for its usual respect for and deference to international
law, such a hole in member-state implementation could threaten to unseat the whole regime.144 As noted by scholars, targeted sanctions are
only as strong as the weakest link of member state implementation.145
Clearly, the European Community’s refusal to participate fully in
the regime based on the inviolability of the guarantees stemming from
the EC Treaty would be inconsistent with the U.N. Charter’s supposed
primacy over other international treaties.146 Furthermore, “[j]udicial
review of Security Council resolutions by national courts would open a
Pandora’s box and result in the fragmentation of U.N. resolutions
along the borders of national and supranational jurisdictions.”147 Ultimately, judicial review could undermine the credibility of the Security
Council. Court decisions to prioritize the protection of due process
over security concerns arguably weaken not only the resolutions at
hand, but also the U.N.S.C.’s overall ability to create an effective and
unified regime.148
Thus, in addition to extensive legal and philosophical arguments
that the U.N.S.C. should be responsive to due process concerns,149 security concerns provoked by judicial resistance compel the Security Council to reform.150 Considering that over fifty member states have expressed concern over the efficacy of the 1267 regime, this pressure is
144 See Búrca, supra note 53, at 3 (noting the Kadi decision “sits uncomfortably . . . with
the broader political ambition of the EU to carve out a distinctive international role for itself
as a ‘normative power’ committed to effective multilateralism under international law”).
145 The Stockholm Process, Making Targeted Sanctions Effective: Guidelines
for the Implementation of the UN Policy Options 10 (Peter Wallensteen et al. eds.,
2003).
146 Biersteker & Eckert, Targeted Sanctions, supra note 9, at 7 (noting that an
annulment of the national measures implementing a U.N.S.C. resolution “could also challenge Article 103 of the UN Charter, which states that obligations under the Charter shall
prevail over obligations Member States may have under any other international agreement”).
147 Reich, supra note 19, at 510.
148 See Biersteker & Eckert, Targeted Sanctions, supra note 9, at 7 (“In the final
analysis, should a regional or national court judgment challenge the application of national measures giving effect to a listing by a Security Council sanctions committee, the
decision could undermine the effective implementation of UN sanctions.”).
149 See Fassbender, supra note 37, at 7.
150 See Reich, supra note 19, at 509 (“The looming possibility of a clash between national courts and the international regime should encourage the member states to press
for an overhaul of the current sanctions regime.”).
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not inconsiderable, and the worry that other states could follow Canada
and Europe’s suit is well-founded.151 Even the Special Rapporteur on
Legal Affairs and Human Rights for the Parliamentary Assembly of the
Council of Europe expressed his hope that “national courts could actually compel the UN authorities to improve their procedures and so help
to increase the legitimacy of these lists . . . .”152 Given both human rights
and security concerns, a critical moment to press for reform has arrived.
B. Suggestions for Reform
Over the past decade, many suggestions for reform of the 1267
regime have been proposed and discussed. Resolutions subsequent to
Resolution 1267 have incorporated some of these suggestions into the
regime by later resolutions.153 The current procedure, however, still
leaves much to be desired in terms of accountability, individual access,
impartiality, and effective remedy.154 In particular, commentators have
noted that there is still no protection against arbitrary decision-making
by the Sanctions Committee, and no way to review allegations once a
listing is imposed.155 Other criticisms focus on the lack of transparency
in the decisions to list or delist.156 Yet another problem is the uncertain
151 See U.N. Sec. Council, Comm. Established Pursuant to Resolution 1267 Concerning
Al-Qaida & the Taliban & Associated Individuals & Entities, Analytical Support & Sanctions
Monitoring Team, Fourth Report Concerning Al-Qaida and the Taliban and Associated Individuals and Entities, ¶¶ 40–46, U.N. Doc. S/2006/154 (Mar. 10, 2006), available at http://www.
un.org/Docs/sc/committees/1267/1267mg.htm.
152 Eur. Parl. Comm. on Legal Affairs & Human Rights, UN Security Council and European Union Blacklists, ¶ 5, Doc. No. 11454, add. (2007).
153 See supra notes 22–23, 25–36 and accompanying text.
154 See Fassbender, supra note 37, at 4 (“Whether the respective committee, or the Security Council itself, grants a de-listing request is entirely within the committee’s or the
Council’s discretion; no legal rules exist that would oblige the committee or the Council to
grant a request if specific conditions are met.”); see also Biersteker & Eckert, Watson
Report Update, supra note 55, at 5 ("It is important to recognize the important changes
already made and to give credit to the serious and painstaking efforts to address the problems. Nonetheless, legal challenges in national and regional courts, concerns in parliamentary assemblies, and criticism from the human rights committee continue.”).
155 Ian Johnstone, Legislation and Adjudication in the UN Security Council: Bringing Down
the Deliberative Deficit, 102 Am. J. Int’l L. 275, 297 (2008) (“A report issued by the Council
of Europe in 2006 stated that the 1267 process violates the European Convention on Human Rights because it provides no protection against arbitrary decisions and no mechanism for reviewing the accuracy of allegations made.”).
156 See id. at 298 (“The third line of criticism relates to the lack of reasons given for decisions at each step.”); see also Biersteker & Eckert, Targeted Sanctions, supra note 9,
at 3 (“Finally, the lack of transparency of committee procedures and difficulties in obtaining information contribute to general perceptions of unfairness.”). To the Security Council’s credit, Resolutions 1735 and 1822 did attempt to respond to many of the transparency
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and potentially unlimited timeline for delisting decisions,157 as “in practice, such requests can carry on indefinitely [and] [s]tates may either
object without specifying a reason or demand a technical hold that
places the request on indefinite hold.”158 Ultimately, despite the steps
that have been made towards opening up the Sanctions Committee to
individual petitions, the underlying issue is that delisting decisions remain a political process.159 Targets still do not have the opportunity to
present their cases in front of the Sanctions Committee, and, should
they lack support from their states of residence or citizenship, it is unlikely that their requests will be taken seriously.160 In addition, “[g]iven
that the same body is responsible for initial placement on the list and
the subsequent review of those decisions, it seems that the opportunity
for review is neither full nor impartial.”161 From a target’s standpoint,
political decision-making is an insufficient guarantee of fair consideration and effective remedy.162
To improve these lapses in due process, commentators have argued over the past decade for various remedial mechanisms.163 The
criticisms by asking member states to provide more information when listing and by requiring the Sanctions Committee to make more information available on its website. Currently, however, states or members of the Sanctions Committee blocking a request for delisting are not required to explain why. See U.N. Sec. Council, Comm. Established Pursuant
to Resolution 1267 Concerning Al-Qaida & the Taliban & Associated Individuals & Entities, Guidelines of the Committee for the Conduct of Its Work, ¶¶ 4–6 (Dec. 9, 2008), available at
http://www.un.org/sc/committees/1267/pdf/1267_guidelines.pdf.
157 Biersteker & Eckert, Targeted Sanctions, supra note 9, at 37.
158 Id. The recently enacted Resolution 1904 does require the Ombudsperson to ensure stricter timelines for consideration and responses to delisting requests. See S.C. Res.
1904, supra note 3, annex 2. Given the purely nonbinding nature of the Ombudsperson’s
recommendations, however, it remains to be seen if this new framework will result in
timely decisions.
159 This is not to say that permitting individuals to bypass state espousal and take requests directly to the Focal Point and now the ombudsperson was not a huge procedural
improvement. Indeed, before Resolutions 1735 and 1904 it was possible that the largest
hidden problem was that individual requests never made it to the Sanctions Committee
due to a state’s unwillingness to espouse the claim. Id. at 34–36.
160 See id.
161 Peter Gutherie, Security Council Sanctions and the Protection of Individual Rights, 60
N.Y.U. Ann. Surv. Am. L. 491, 514 (2004).
162 See Iain Cameron, UN Targeted Sanctions, Legal Safeguards and the European Convention
on Human Rights, 72 Nordic J. Int’l L. 159, 183 (2003) (“As regards the question of political safeguards, these are obviously insufficient from the individual perspective.”).
163 See U.N. SCOR, 61st Sess., 5599th mtg. at 2–3, U.N. Doc. S/PV.5599 (Dec. 19,
2006); Biersteker & Eckert, Targeted Sanctions, supra note 9, at 47; Fassbender,
supra note 37, at 30–31; Cameron, supra note 162, at 208–11; Gutherie, supra note 161, at
524–41; Reich, supra note 19, at 510; Press Release, Press Conference by Special Rapporteur on Human Rights and Countering Terrorism (Oct. 22, 2008), available at http://
www.un.org/News/briefings/docs/2008/081022_Scheinin.doc.htm. A wide range of meas-
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most aggressive suggestion has been to entirely dismantle the 1267 regime and leave blacklisting decisions fully in the hands of member
states.164 Under this proposal, “[s]tates would be responsible for both
determining who should be sanctioned and for providing the procedural protections that accompany sanctioning.”165 Consequently, “[t]he
coordination role of the Security Council would be replaced by the bilateral and multilateral agreements concerning sanctioning.”166 States
would cooperate with each other, either through formal treaties or informal case-by-case agreements to ensure that sanctioned individuals
had their assets and movements restricted world-wide.167
A similar and more radical proposal that has surfaced but has not
been favored by the U.N.’s own Special Rapporteur on Human Rights
and Countering Terrorism has been the abolition of the 1267 Sanctions
Committee coupled with the movement of listing to the CounterTerrorism Committee’s jurisdiction on the basis of Resolution 1373.168
This alternative would eliminate the entire question of due process by
having the U.N. provide expertise for judicial decisions made on a national level, but without a U.N.-sponsored list.169 Another upside to this
alternative could be the increase in state participation in reporting.
States have reported much more frequently to the Counter-Terrorism
Committee, despite the fact that they are under no obligation to do so,
than to the Sanctions Committee, where U.N.S.C.-dictated obligation
does exist.170
Apart from decentralizing alternatives, another suggestion has
been to allow listing at the U.N. level but to promote state judicial review
of such decisions.171 This is essentially the default that has emerged
ures has also been suggested for improving listing procedures as an aspect of due process.
Nevertheless, as the recent court cases have focused on the right of effective remedy as the
crucial aspect of due process, this Article duly focuses only on suggestions for delisting.
164 See Gutherie, supra note 161, at 525–26.
165 Id. at 525.
166 Id.
167 See id. at 526.
168 Press Release, supra note 163.
169 In Segi, for example, the ECJ found the fact that the listing decisions were made on
the national level meant that the petitioner could avail himself of the national due process
protection. See Segi v. Council, ¶¶ 59–62, 2007 E.C.R. I-1657, 2007 ECJ EUR-Lex LEXIS
2015 (Feb. 27, 2007); see discussion supra Part I.
170 See Eric Rosand, Current Developments: The Security Council’s Efforts to Monitor the Implementation of Al Qaeda/Taliban Sanctions, 98 Am. J. Int’l L. 745, 758–59 (2004) (discussing
the strange discrepancy between state reporting to the CTC Committee and the 1267
Sanctions Committee).
171 See Gutherie, supra note 161, at 535 (“Another possibility is for the Security Council
to legitimate the role of state mechanisms for review of 1267 Committee decisions.”).
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from the ECJ’s Kadi II decision.172 If institutionalized, “the Security
Council would explicitly recognize the capacity of state and regional
bodies to play a critical role in reviewing sanctioning determinations.”173
On the one hand, this model would allow the U.N.S.C. to retain oversight, while ensuring that individual nations would be able to uphold
their standards of due process protection.174 On the other hand, this
approach could also create massive gaps in the sanctions regime, as different states could adopt different approaches to reviews. Even if the
U.N.S.C. were to set standards for review, it would be “impossible to set
them in a manner that is acceptable to all member states.”175
Some commentators, including members of the Security Council176 and the Special Rapporteur on Human Rights and Countering
Terrorism,177 have pressed for more centralized alternatives, such as the
establishment of an independent tribunal within the U.N. with the
power to review individual petitions and issue binding delisting decisions on the Sanctions Committee.178 Each of the commentators who
have suggested this mechanism has a slightly different take on the
structure of such a tribunal. Some recommend an arbitral panel;179
some recommend an appeals court for the Sanction Committee’s decisions;180 and still others call for the Secretary General to compose a
172 See Kadi II, ¶ 225, 2008 E.C.R. I-6351, 2008 ECJ EUR-Lex LEXIS 1954.
173 Gutherie, supra note 161, at 535.
174 See id.
175 Id. at 536.
176 U.N. SCOR, supra note 163, at 2–3 (including a statement by Denmark advocating
for the establishment of “an independent review mechanism”).
177 See Press Release, supra note 163.
178 See, e.g., Biersteker & Eckert, Targeted Sanctions, supra note 9, at 47 (espousing the creation of an independent arbitral panel to consider delisting proposals); Fassbender, supra note 37, at 30–31 (“Among the options available to the Council are the establishment of—an independent international court or tribunal . . . .”); Cameron, supra
note 162, at 208–11 (analyzing the benefits and disadvantages of an international arbitral
body with the competence to hear delisting requests); Gutherie, supra note 161, at 532
(“Thus, if internal procedures are to be relied upon to satisfy the rights of targeted individuals, the Security Council will need to establish an independent review body.”); Reich,
supra note 19, at 510 (“Hence, the U.N. itself must provide for an independent administrative mechanism to review both the listing and de-listing decisions made by the Committee.”).
179 See Cameron, supra note 162, at 209–10 (discussing how such a panel would be
composed).
180 See Gutherie, supra note 161, at 532 (“Here the tribunal would be created to hear
appeals of decisions taken by the 1267 Committee, and potentially other administrative
bodies that have been created under auspices of Chapter VII action by the Security Council.”).
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panel of experts.181 Nevertheless, there are a few common factors on
which most commentators agree. An individual must be able to bring
his request directly to the tribunal, which would have full access to nonredacted information, including the sensitive security information
about the individual’s case. Although the arbitrators/judges might be
picked by the U.N.S.C., they would, in effect, form an independent judicial mechanism similar to judges presiding over the international
criminal tribunals. Finally, nearly all proponents of this kind of mechanism agree that the tribunal would have the power to issue binding decisions on an individual’s delisting.
Another popular suggestion is the creation of an independent
ombudsperson office within the U.N., which would have the power to
consider individual delisting requests and issue non-binding recommendations.182 This proposal also varies slightly depending on the
commentator, but most agree that the ombudsperson should be endowed with broad powers to investigate a delisting request—although
the office may not possess full access to sensitive intelligence information. The ombudsperson would also be accessible to individual delisting
requests, despite the fact that he or she would not give an individual
the opportunity to present his or her case at a formal hearing. The
ombudsperson’s ultimate decision on an individual’s case would carry
substantial weight but would not bind the Sanctions Committee.183 This
proposal, essentially, is the one that has gained the most currency with
the U.N.S.C. and was recently established by Resolution 1904.184 Notably, Resolution 1904 did not establish a permanent ombudsperson’s
office but rather a temporary one with an eighteen-month mandate.185
181 See Biersteker & Eckert, Targeted Sanctions, supra note 9, at 46–47 (“[A] list of
arbitrators and experts with appropriate experience (criminal or administrative law, security, human rights) would be composed by the Secretary-General and called upon to form
ad hoc three-member panels to hear individual delisting appeals.”).
182 See id. at 45 (“The ombudsperson would be independently appointed and make independent recommendations about delisting requests.”); Fassbender, supra note 37, at
30–31 (noting that “an ombudsperson office, as it exists in a number of States and in the
European Union as an alternative remedial mechanism” could be established); Johnstone,
supra note 155, at 307 (“[T]he focal point in the Secretariat or a separate panel could be
given independent review functions—as a sort of ombudsperson.”).
183 Biersteker & Eckert, Targeted Sanctions, supra note 9, at 45 (“[T]he ombudsperson’s decision would not be binding on the sanctions committee. Procedurally, the
ombudsperson would be accessible by listed individuals, but there would not be a formal
hearing, nor would the ombudsperson have access to nonredacted statements of case.”).
184 See S.C. Res. 1904, supra note 3, annex 2.
185 Id.
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The least aggressive suggestion is to simply maintain the status quo
but to encourage the Security Council to word its future resolutions
broadly enough that states would be afforded the discretion to implement them in accordance with domestic human rights standards.186 As
an illustration, in adopting a Chapter VII resolution to reform the Consolidated Listing, the Security Council could require that member
states must implement resolutions in a manner consistent with ICCPR
obligations, regardless of whether the state in question is a party to that
treaty. Such maintenance of the status quo may “retain the questions of
the Security Council’s legitimacy in mandating sanctions without sufficient procedural protections and domestic courts’ authority in reviewing implementation of those sanctions.”187 Granted, one might counter
that maintaining the status quo until the present has not led to “nuanced political compromise” but rather to the beginnings of what
might become a major breach in the 1267 security regime. Even more
broadly-worded U.N.S.C. resolutions would also probably water-down
their effectiveness and uniform implementation.
III. Analysis: A Framework for Consideration
There is no lack of suggested due process-improving mechanisms
from which to choose.188 Therefore, in determining which of the many
suggestions would provide the most effective reform, it is crucial to isolate criteria by which to judge whether a particular method has addressed the key concerns critics have raised.189 Many legal commentators who have considered this issue have viewed the due process
186 See Erika de Wet, Holding International Institutions Accountable: The Complementary Role
of Non-Judicial Oversight Mechanisms and Judicial Review, 9 German L.J. 1987, 2001 (2008)
(discussing how the ECJ was able to avoid review of Security Council measures because the
resolution at hand was “formulated in broad terms, as a result of which those responsible
for their implementation had discretion as to how to achieve the desired result”); Gutherie, supra note 161, at 521–22 (noting that leaving the development of the system to the
Security Council, the relevant Security Council committees, and state and regional political and judicial branches will encourage political compromise that takes into account concerns of security and due process).
187 Gutherie, supra note 161, at 521–22 (quoting Jared Wessel, Safety in Ambiguity,
Danger in Positivism: A Case for Leaving the Executive-Legislative Relationship Undefined
in an Emergency Powers Regime 3–4 ( June 4, 2003) (unpublished manuscript, on file with
Peter Gutherie)). Gutherie continues, “Perhaps this uncertainty is to be desired, because
as long as all parties are uncertain as to their respective positions there will be an incentive
to ‘reach nuanced political compromises which balance the needs of security with the
needs of civil-liberty.’” Id.
188 See Fassbender, supra note 37, 30–31.
189 See id. at 4.
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inadequacy strictly as a human rights problem.190 Although there are
due process concerns, there is also a critical security risk at stake, as a
state’s or group of states’ refusal to enforce targeted sanctions could
undermine the entire regime.191 The goal is for improvements in due
process to bolster the counter-terrorism regime and maximize compliance with U.N.S.C. resolutions.192 In sum, there are three critical issues
which must be considered: (1) improving due process for delisting requests; (2) ensuring the effectiveness of the 1267 counter-terrorism regime; and (3) maintaining the authority of the U.N.S.C. In seeking a
mechanism that supports these three prongs, it is important to analyze
the key factors bolstering each area.
A. Improving Due Process
Effective due process relies on three principal concerns: the independence of the decision-maker, the accessibility of the decision-maker
to the individual, and the power of the decision-maker to grant an effective remedy.193 With regard to the first factor, long-standing national
and international norms have dictated that impartiality is a crucial
component of fair adjudication.194 Accordingly, proposed mechanisms
that lack an independent decision-maker will not pass due process muster. For example, any panel of experts or judicial body that is entirely
190 See E.J. Flynn, The Security Council’s Counter-Terrorism Committee and Human Rights, 7
Hum. Rts. L. Rev. 371, 374–76 (2007) (discussing Former Secretary-General Kofi Annan,
the High Commissioner for Human Rights, Louise Arbour, and the Executive Director of
the U.N. Counter-Terrorism Committee agreeing that violating Human Rights in counterterrorism efforts is counterproductive).
191 See Biersteker & Eckert, Targeted Sanctions, supra note 9, at 7 (“[S]hould a
regional or national court judgment challenge the application of national measures giving
effect to a listing by a Security council sanctions committee, the decisions could undermine the effective implementation of UN sanctions.”).
192 See Johnstone, supra note 155, at 277 (“Rules that are perceived as both procedurally and substantively just exert a compliance pull on states, even in the absence of
enforcement.”).
193 See Biersteker & Eckert, Targeted Sanctions, supra note 9, at 3 (“Elements that
render an effective remedy are: (i) an independent and impartial authority, (ii) decisionmaking authority, and (iii) accessibility.”).
194 See ICCPR, supra note 52, 999 U.N.T.S. at 176 (“In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be
entitled to a fair and public hearing by a competent, independent and impartial tribunal
established by law.”); Fassbender, supra note 37, at 6 (“[Due process] rights can be considered as part of the corpus of customary international law, and are also protected by
general principles of law in the meaning of Article 38, paragraph 1, lit. c, of the ICJ statute.”).
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chosen by, dependent on, or easily replaced by the Security Council
probably would not pass the bar of providing effective due process.195
Given the nature of targeted sanctions, accessibility to the target
remains the most glaring due process feature absent from the 1267 regime. After all, the Security Council was not designed for specific complaints or input, although it has slipped into making these kinds of decisions that affect targets.196 Commentators have argued that to restrain
the growing unaccountability of international organizations over individuals and groups, it is important to shift accountability relationships
beyond those solely accessible to states.197 Targets must be allowed to
directly challenge the decisions that affect their rights.198 Hence, commentators have consistently called for this kind of accessibility, as it is
the key to due process reform.199
Some reform suggestions do not lend themselves well to target access. For instance, simply relying on the Security Council to word its
decisions more broadly in the future does not open the process at all to
195 Of course, even if decision-makers were chosen by the Security Council, dependence could be lessened if the adjudicators are guaranteed their positions once appointed
for fixed and lengthy terms, as is the case with judges of the special tribunals created by
the U.N.S.C.
196 See Fassbender, supra note 37, at 22 (“[T]he founders of the United Nations did
not expect the Organization to exercise power or authority in a way that the rights and
freedoms of individual persons would be directly affected.”); Andrea Bianchi, Assessing the
Effectiveness of the UN Security Council’s Anti-Terrorism Measures: The Quest for Legitimacy and
Cohesion, 17 Eur. J. Int’l L. 881, 887 (2006) (“No one could have reasonably anticipated at
the time of the drafting of the UN Charter that the subsequent practice of the organ
would evolve to encompass a general law-making—and previously quasi-judicial—activity to
face threats to the international legal order . . . .”).
197 See de Wet, supra note 186, at 1987. The author notes:
The growing power of international institutions in areas that were formerly
regulated domestically, along with the growing impact of their conduct on
(the rights of) States and non-State actors alike, has thus far not been
matched by a shift in accountability relationships beyond those applicable
within the confines of the territorial State.
Id.
198 See Andrew Byrnes, An Effective Complaints Procedure in the Context of International
Human Rights Law, in The UN Human Rights Treaty System in the 21st Century 139,
144 (Anne F. Bayefsky ed., 2000) (“One measure of the effectiveness of an international
complaints procedure that might be adopted is whether the procedure is really accessible
to the citizens of the countries which have accepted it . . . .”).
199 U.N. SCOR, 61st Sess., 5474th mtg. at 7–8, U.N. Doc. S/PV.5474 ( June 22, 2006);
see also Biersteker & Eckert, Targeted Sanctions, supra note 9, at 44 (noting that “procedural guarantees such as accessibility for individuals or entities affected” constitute a
traditional element of the right to an effective remedy); Fassbender, supra note 37, at 6
(“Generally recognized due process rights include the right of every person to be heard
before an individual measure which would affect him or her adversely is taken . . . .”).
2010]
The Need for Reform of the U.N.S.C.’s 1267 Sanctions Regime
33
targets. Less obvious perhaps is that an ombudsperson’s office, although open to target delisting requests, does not allow for participation in the process because targets are not allowed to present their own
case; rather, they must simply wait for termination of the investigation
and issuance of a recommendation. If due process is to be taken seriously, targets must be afforded as full an opportunity as possible to defend their rights.
The third factor underlying due process is the decision-maker’s
ability to guarantee an effective remedy, which entails several other specific considerations. The decision must be made in a timely manner to
ensure that the petitioner is not left in legal limbo.200 The decision must
be well-reasoned and persuasive.201 Most importantly in the context of
delisting, the reviewing body must have the power to issue binding decisions, as a mere recommendation to the Sanctions Committee cannot
guarantee the petitioner’s rights will be safeguarded.202 The importance
of binding decisions casts a negative light on several of the reform suggestions. Neither the proposed panel of investigatory experts nor the
ombudsperson’s office is granted anything more than recommendatory
powers by their putative creators. From the vantage-point of maximizing
due process, some of the more centralized recommendations—such as
an ombudsperson’s office, a panel of investigatory experts, or persuading the U.N.S.C. to use broader language—are less desirable.
B. Ensuring the Effectiveness of the 1267 Counter-terrorism Regime
Due process concerns instigated the current security crisis by provoking courts to annul regulations that implement the Security Coun200 See Fassbender, supra note 37, at 31. (listing “speed and efficiency of consideration
by the reviewing body” as a criterion for effectiveness of a remedy); Byrnes, supra note 198,
at 146 (“From the individual complainant’s point of view, a speedy determination of a
complaint is obviously desirable.”).
201 See Fassbender, supra note 37, at 31 (noting that the quality of the decision-making
is an important factor); Byrnes, supra note 198, at 149 (indicating that the ability to explain and justify an adjudicatory decision “is important for the acceptance and implementation of the decision by the party affected in an individual case, as well as for establishing
the legitimacy of the body more generally”).
202 Biersteker & Eckert, Targeted Sanctions, supra note 9, at 3 (noting that decision-making authority is an important element of an effective remedy); Fassbender, supra
note 37, at 31 (listing compliance and follow-up as important considerations of an individual complaint mechanism); Byrnes, supra note 198, at 151 (“The speedy and effective implementation of a decision of an adjudicatory body is a critical indicator of the effectiveness of a complaint procedure.”); Cameron, supra note 162, at 210 (“To fully satisfy the
human rights objections, the decision of the arbitral body would have to be binding on the
sanctions committee.”).
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cil’s counter-terrorism resolutions. Accordingly, any mechanism that
would remedy due process concerns must not lose sight of the important goal of securing effective implementation of the 1267 regime. An
effective counter-terrorism regime requires several key elements. For
instance, states and the international community must be able to move
with speed when reacting to a potential terrorist threat. Therefore,
most of the proposed reforms focus on post-hoc mechanisms. Although
due process normally requires that an opportunity be given to an individual to challenge his or her listing before it occurs, the necessity of
speed in preventing a putative terrorist-supporter from funneling finances into terrorist hands explains only permitting challenges after
listings have occurred.203
Perhaps the thorniest issue in improving counter-terrorist efforts is
that of restricting access to sensitive information. As states are keen on
keeping intelligence private, they are often reluctant to share their
sources and methods with other states, or even the U.N., to preserve the
secrecy of their intelligence-gathering capabilities.204 This lack of cooperation in the intelligence realm renders less appealing any reform suggestion by which national courts review the listing, unless the designating state also happens to be the reviewing state (and the government
feels comfortable giving sensitive information to the national judiciary).
It is unlikely states trust each other enough to give a foreign judiciary
the necessary security information to make an informed decision on an
individual’s case.205 Consequently, reviewing courts may end up making
uninformed delisting decisions, and such decisions are likely to be
skewed in favor of unfreezing dangerous individuals’ assets because the
information justifying the freeze will not be readily accessible. This consideration also implicates advisory mechanisms at the level of the U.N.,
such as an ombudsperson’s office or group of experts, given that designating states may not feel comfortable sharing information with an international judicial body.206 The more independent, and thus free from
203 See Gutherie, supra note 161, at 530–31 (noting that the problem of needing “to act
quickly to prevent asset transfers to terrorists . . . is one that can be solved through posthoc review”).
204 See id. at 537 (“[T]he state(s) recommending listing to the 1267 Committee may
not be willing to share detailed information with the government of other states that are
implementing the sanctions.”).
205 See id.
206 See Cameron, supra note 162, at 209 (“There are special problems involved in giving
international judicial bodies access to very sensitive intelligence material. There is a real
risk of leakage of intelligence to hostile states, which may well be members of the Security
Council.”); Johnstone, supra note 155, at 307 (“If an ombudsperson were established, con-
2010]
The Need for Reform of the U.N.S.C.’s 1267 Sanctions Regime
35
the control of a potentially hostile state, such a mechanism is, and the
more highly-trained in handling intelligence material the experts chosen to adjudicate are, the less pressing the information leakage issue
becomes.
The final counter-terrorism concern is the need for broad and
uniform coverage of the 1267 regime. Allowing individual states using
different standards to review listing decisions could lead to wide-spread
unevenness in the implementation of the regime. The most problematic scenario would be that in which the courts of a state less sympathetic to counter-terrorism concerns would allow lax implementation
and freely delist those individuals who represent a legitimate threat to
international security. For this reason, the suggestions to allow state judicial review of a Sanctions Committee listing, or to totally abolish the
Sanctions Committee in favor of moving the question of listing to the
jurisdiction of the Counter-Terrorism Committee (again, allowing state
judicial review), do not adequately address real security concerns.
In general, the counter-terrorism requirements of speed of implementation, security of sensitive intelligence, and broad and uniform
coverage point away from decentralized measures that would allow for
state listing decisions or state judicial review of Sanction Committee
listing decisions.
C. Reaffirming the Authority of the U.N.S.C.
Ultimately, the resolution of such due process and security concerns should reaffirm the U.N.S.C.’s importance in a world in which
threats to peace and security persist.207 The U.N.S.C. was not originally
designed to impact targets directly,208 and its mechanisms are not directly well-suited to discharging a judicial function.209 In assuming such
governmental functions, the U.N.S.C. has opened itself up to criticism
by the judicial keepers of constitutional guarantees. On behalf of these
guarantees and the individuals protected by them, the recent decisions
issued by regional and domestic courts have challenged the primacy of
the U.N.S.C. over international law. Above and beyond all, in order to
be palatable to members of the Security Council, any reform mechafidentiality issues would surely arise, as states would be reluctant to provide such an office
with sensitive information.”).
207 See Biersteker & Eckert, Targeted Sanctions, supra note 9, at 7.
208 See U.N. Charter art. 24, para. 1.
209 See Cameron, supra note 162, at 168 (noting that the Security Council is assuming a
judicial and legislative role in targeting individuals); Johnstone, supra note 155, at 300
(arguing that the Security Council is ill-suited to assuming a quasi-judicial role).
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nism must support the U.N.S.C.’s place as the absolute keeper of international peace and security.
Any measure which infringes too greatly on the U.N.S.C.’s authority will not reaffirm the relevance of the U.N.S.C. in the maintenance of
international peace and security. It is far more likely that U.N.S.C.
member states would be willing to entertain suggestions that recentralize reviewing authority within the U.N.S.C. than one handing over such
review to member states. Certainly, the U.N.S.C. would not consent to
dismantling its own regime to increase state sanctioning control nor to
authorize states to review delisting requests that implicitly review the
Chapter VII resolutions that created them.210 Any decentralization of
the counter-terrorist regime would serve only to weaken perceptions of
the Security Council’s legitimacy and effectiveness.211
To allow review without undermining the U.N.S.C.’s primacy, any
measure selected must focus solely on review of the application of the
targeted resolution to an individual’s case and not on the validity of the
resolution itself. The right to an effective remedy extends only so far as
the target’s rights are infringed, or, “[i]n other words, an individual person cannot contend that a resolution adopted by the Council as such is
unlawful under the UN Charter.” 212 In addition, the review mechanism
should not be accessible to member states attempting to claim the same
unlawfulness or to a person affected by general sanctions.213 Any mechanism established must be strictly limited to targets seeking no more
than their personal delisting.
Finally, reform measures must be politically and practically viable
vis-à-vis members of the U.N.S.C. As noted above, any mechanism
which is perceived to infringe on U.N.S.C. authority is unlikely to garner the needed support.214 By contrast, implementing the most deferential suggestion (that the U.N.S.C. merely be encouraged to more
broadly word their resolutions to allow for state discretion) also strips
the U.N.S.C. of its ability to ensure specific and effective enforcement
of its regime.215 Moreover, we must consider issues of expense and
210 See Gutherie, supra note 161, at 493.
211 See id. (arguing that dismantling the Security Council regime is unfeasible “because
decentralization of sanctions would entail a loss of legitimacy and effectiveness and would
also fail to fully address human rights concerns”).
212 See Fassbender, supra note 37, at 29.
213 See Cameron, supra note 162, at 184 (“But even if some form of external review
body is created, this does certainly not mean that there should be a legal remedy for all
people affected, directly or indirectly, by general economic sanctions.”).
214 See Gutherie, supra note 161, at 493.
215 See id.
2010]
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The Need for Reform of the U.N.S.C.’s 1267 Sanctions Regime
complexity; although composed of some of the world’s most powerful
and wealthy nations, the U.N.S.C. might also be loath to pursue any
reform perceived as too costly or too bureaucratic, such as instituting
an entirely separate reviewing body within the U.N.216 In short, in seeking to reaffirm the authority of the U.N.S.C., it is crucial to pursue a
centralized measure open only to individual and group petitioners.
Such a measure must not be too costly or complex to create.
D. Selecting the Right Reform Measure
APPLYING THE FRAMEWORK TO POTENTIAL SOLUTIONS
High
Low
Best option
Dismantle
1267; move
to state control
Independent
Tribunal
Ombudsperson’s
office
I. Improving due process
• Independence of decision-maker
• Accessibility
• Power to grant remedy
II. Ensuring effective of counterterrorism regime
• Speed in potential delisting
• Access to and protecting sensitive
information
• Broad and uniform coverage
III. Reaffirming authority of UN
Security Council
• Review focused on application of
resolution to case
• Practically viable
• Politically viable
These multiple due process, counter-terrorism, and U.N.S.C. primacy tugs on the reins of reform demonstrate that there is no one clear
direction. Rather, the best measure will be the one that most effectively
balances these competing concerns. An independent tribunal composed of security-savvy judges and selected by the U.N.S.C., which has
the power to hear target complaints and issue binding delisting decisions on the Sanctions Committee, constitutes the mechanism bestsuited to the task.
216 See Biersteker & Eckert, Targeted Sanctions, supra note 9, at 45 (noting an advantage of one suggestion to be that “it does not create a new costly or bureaucratic body,
but rather integrates the function into an existing structure”).
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Such a judicial mechanism is not unprecedented. The U.N.S.C.’s
establishment of the Independent Criminal Tribunal for the former
Yugoslavia (ICTY) and subsequent tribunals such as the Independent
Criminal Tribunal for Rwanda (ICTR),217 has proven its ability to create
an independent body with the competence to hear and adjudicate individuals’ cases. A 1267 tribunal could serve in a similar capacity. The
U.N.S.C. would initially select a number of judges with the relevant judicial and security expertise. This permanent body would be authorized to hear target complaints resulting not only from delisting requests
based on the current Consolidated List but also from complaints resulting from due process violations for any other U.N.S.C. resolutions that
target individuals and groups. Given the outcry over the humanitarian
toll exactly by general sanctions, it is likely that the U.N.S.C. will continue to expand its use of targeted sanctions.218 Targets would be
granted a hearing, and this body would have access to all relevant information about the listing.
Such a tribunal would effectively satisfy the current due process
complaints. To be sure, the judges would be initially selected by the
U.N.S.C. and thus arguably predisposed to certain biases. Much like the
ICTY and the ICTR, however, the intent is that the extended terms of a
judge’s position after appointment would help ensure judicial independence, as much as that ideal is attainable. The U.N.S.C. could further bolster the independence of tribunal judges by requiring the election of judges through procedures similar to those of the International
Court of Justice and other special tribunals for seating judges.219 Crucially, such a tribunal would also be fully open for individuals and
groups to both make delisting requests and present their cases. The
tribunal would also have the power to issue delisting decisions binding
217 For example, these include the Independent Criminal Tribunal for Rwanda established by Security Council Resolution 955 and the Special Court for Sierra Leone, authorized
by Security Council Resolution 1315. William A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierre Leone 29, 36 (2006).
218 See Save the Children, supra note 15, ch. 10 (2002); Cameron, supra note 162, at
185 (“So targeted sanctions, both unilateral and multilateral are ‘here to stay’ and the
tendency will probably be for more people to be covered by targeted sanctions.”).
219 The United Nations Charter, which established the International Court of Justice,
serves as an illustration of the kind of procedures that could be developed. U.N. Charter
art. 92. Articles 2 through 33 regarding the organization of the Court provide substantial
detail in relation to the election of judges, with descriptions of nomination procedures,
required qualifications, how judges must receive majority votes in the General Assembly
and Security Council, and how judges are chosen if none receive the requisite majorities.
Statute of the International Court of Justice, Oct. 24, 1945, 59 Stat. 1031, T.S. No. 933.
2010]
The Need for Reform of the U.N.S.C.’s 1267 Sanctions Regime
39
on the Sanctions Committee, thereby ensuring the worthy petitioner an
effective remedy.220
Ideally, the tribunal would repair the patchy implementation of
the 1267 regime. After all, the ECJ in Kadi II explicitly stated that were a
review mechanism provided through the U.N.S.C., it would not have
intervened.221 Not only would the tribunal help bring the European
Community states back into compliance, but it would also do so without
compromising any of the other goals of the 1267 regime. The fact that
the tribunal would be open only for post-hoc review of listing ensures
that the Sanctions Committee and member states could still act with
speed in listing a putative-terrorist supporter. To assuage concern over
disclosure of sensitive information, the U.N.S.C. could choose judges
who are both experienced in handling intelligence and trusted by a
large group of nations—indeed, one imagines such skills would be
mandatory for a judge to win the support of enough U.N.S.C. members
to be appointed.
Giving the judges access to all case materials does not necessarily
mean petitioners would also be granted full access to view the same security information, although the rules of this new tribunal should encourage maximum disclosure and allow particular lawyers to be provided security clearances to view certain information, even if that access
is denied to the listed parties themselves. This may put petitioners at a
disadvantage in their inability to present their cases. Such a compromise is necessary, however, given the importance of security concerns to
member states who propose listings. It is important to remember that
despite the importance of due process and the possible harshness of
the asset freeze and travel ban, these resolutions do not expose those
listed to criminal sanctions, but rather to administrative sanctions.222
220 The existence of such a tribunal would not deprive the Sanctions Committee of its
own independent ability to delist; rather, the tribunal would simply require the Sanctions
Committee to abide by the tribunal’s delisting decisions.
221 Kadi II, ¶ 319, 2008 E.C.R. I-6351, 2008 ECJ EUR-Lex LEXIS 1954 (“[So] long as
under that system of sanctions the individuals or entities concerned have an acceptable
opportunity to be heard through a mechanism of administrative review forming part of
the United Nations legal system, the Court must not intervene in any way whatsoever.”).
222 See U.N. Human Rights Comm., Sayadi v. Belgium, Commc’n No. 1472/2006,
¶ 10.11, U.N. Doc. CCPR/C/94/D/1472/2006 (2008) (“Although the sanctions regime
has serious consequences for the individuals concerned, which could indicate that it is
punitive in nature, the Committee considers that this regime does not concern a ‘criminal
charge.’”); S.C. Res. 1735, supra note 3, pmbl. (reiterating that the asset freeze, travel ban,
and arms ban “are preventative in nature and are not reliant upon criminal standards set
out under national law”); Biersteker & Eckert, Targeted Sanctions, supra note 9, at 13
(“[I]t may be concluded that targeted sanctions are most likely not criminal sanctions.”);
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The judges could mitigate some of the unfairness by revealing the intelligence they deem safe to expose and by discarding or assigning less
weight to those parts of the case that the petitioner does not have an
opportunity to rebut.223
Finally, concentrating review power under the auspices of the Security Council reaffirms the authority and relevance of the Council in
matters of international peace and security.224 The tribunal would only
have jurisdiction to hear individual and group delisting requests. This
limitation would stymie any potential challenge to the underlying resolution from discontented state petitioners.225 Moreover, the placement
of the tribunal within the U.N. also eliminates any incidental review of
U.N.S.C. resolutions stemming from regional court consideration of an
targets’s complaints (as when the CFI held that U.N.S.C. resolutions
could be bounded by jus cogens). Concededly, such a tribunal will likely
be expensive and, at the outset, difficult to implement. But if the tribunal is made permanent, it is likely to become more cost-efficient in the
long run, particularly as the U.N.S.C.’s use of targeted sanctions is only
bound to increase.226 Thus, while all potential solutions are imperfect,
the establishment of an independent tribunal is the best option to balance competing concerns.
Conclusion
For the past several years, critics of Resolution 1267’s lack of due
process have been asking the U.N.S.C. to reform the regime to allow
targets to challenge their listing. What makes the present a particularly
Fassbender, supra note 37, at 29–30 (“This understanding of a listing of an individual as a
measure of an administrative character corresponds to the assumption that sanctions imposed on an individual person by the Security Council are not penalties imposed on account of a criminal offence committed by that person.”); Gutherie, supra note 161, at 506
(“Given the ambiguous nature of these sanctions and the clear state practice of allowing
non-criminal asset seizures, it would be difficult to effectively hold that asset freezes always
constitute criminal sanctions.”).
223 For example, in the United States, the Classified Information Procedures Act describes how classified materials may be used in U.S. federal courts, how defendants may
seek to discover classified materials being used against them, how hearings may be held on
the use of such materials, and how judges may employ remedies to mitigate against situations where defendants are unable to access materials used against them. See 18 U.S.C. app.
3 (2006).
224 See Biersteker & Eckert, Targeted Sanctions, supra note 9, at 7.
225 For example, a state that felt it had sanctions unjustly imposed upon it would not be
able to challenge the Security Council’s decision by bringing a complaint to this tribunal.
226 See Cameron, supra note 162, at 184–85 (arguing that sanctions are an inexpensive
means of demonstrating political will and that targeting private individuals rather than
national leaders is politically safer).
2010]
The Need for Reform of the U.N.S.C.’s 1267 Sanctions Regime
41
germane time to urge reform is that recent domestic and regional
court decisions have begun turning the due process issue into a security
concern. As had become clear from the adoption of Resolution 1904
and the establishment of a temporary ombudsperson’s office, U.N.S.C.
members finally have a real incentive to consider the human-rights
problem that confronts them. In addition, the temporary nature of the
ombudsperson’s office, combined with the fact that its establishment
has not persuaded courts that the due process problems have been
fixed, has effectively given the U.N.S.C. an eighteen-month time-limit
to decide how to permanently solve this problem.227 The choice is clear
for the U.N.S.C.: ignore mounting judicial concerns over due process
violations and potentially face an increasing number of states refusing
to implement resolutions; or, incorporate due process protection into
the 1267 regime and regain its footing as the leading international entity responsible for maintaining international peace and security.
Although it may be obvious that the time for reform is at hand, the
form of the measures that should be instituted is much less clear. There
is no single ideal solution but rather a set of criteria which, when considered together, help identify the need for an independent, speedy,
inexpensive, post-hoc, intelligence-guarding judicial tribunal that is
only accessible to the targets and capable of promising an effective
remedy. As a result, both human rights and security critics should encourage the Security Council to satisfy due process, counter-terrorism,
and U.N.S.C. authority-concerns by initiating a process to bring this
promising new tribunal to fruition.
227 See A v. HM Treasury, [2010] UKSC 2, [2010] 2 W.L.R. 378, 413–414 (U.K.).
INSERTED BLANK PAGE
HALTING URBAN SPRAWL: SMART
GROWTH IN VANCOUVER AND SEATTLE
David Fox*
Abstract: Haphazard and unorganized land-use planning in United
States cities has resulted in endless sprawl that is straining infrastructure,
polluting the atmosphere, and negatively affecting quality of life. This
Note compares efforts of two similarly situated North American cities—
Seattle and Vancouver—in enacting Smart Growth policies to combat
sprawl and argues that Seattle, and American cities in general, should
look to Vancouver’s example to limit urban sprawl and comprehensively
plan at local and regional levels for sustainable growth and more livable
spaces over the coming decades.
Introduction
The most pressing land use problem facing North American cities is
the containment of urban sprawl.1 Sprawl is low-density, land-consuming,
non-contiguous development on the fringe of settled areas, often near a
decaying central city that invades undeveloped areas.2 It is haphazard
development that expands without limits or order from the core of a
metropolitan area.3 In areas characterized by sprawl, residential development consists primarily of single-family housing, with a significant
number of them scattered in distant areas.4 Examples of non-residential
development include shopping malls, strip malls along arterial roads,
isolated industrial and office parks, and freestanding schools or other
public buildings.5 Sprawl usually results in infrastructure problems.6 Ei* David M. Fox is a Note Editor for the Boston College International & Comparative Law
Review.
1 Robert H. Freilich, From Sprawl to Smart Growth, at xviii (1999); James A.
Kushner, Healthy Cities: The Intersection of Urban Planning, Law and Health 57
(2007) (quoting Joel Garreau, Edge City: Life on the New Frontier 3 (1991)).
2 Edward T. Canuel, Supporting Smart Growth Legislation and Audits: An Analysis of U.S.
and Canadian Land Planning Theories and Tools, 13 Mich. St. J. Int’l L. 309, 310 (2005).
3 Id.
4 Julian C. Juergensmeyer, Symposium on Urban Sprawl: Local and Comparative Perspectives
on Managing Atlanta’s Growth, Forward: An Introduction to Urban Sprawl, 17 Ga. St. U. L. Rev.
923, 925 (2001).
5 Id.
6 Id.
43
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ther the infrastructure (sewage and water distribution systems are examples) is unavailable in the outer areas where development is taking place,
or an entirely separate system must be developed, which is economically
wasteful and inefficient.7 By concentrating poverty in urbanized areas,
sprawl re-segregates society and drains public investment in vital urban
services.8
The costs of sprawl are borne both individually and collectively.9
Individual costs include expenses of ever-increasing commuting and
related stress, decreased time spent with family, and alienation from
cultural activities available in community centers.10 Collective costs include the costs of providing multiple infrastructure systems, pollution,
and the loss of wilderness, farmland, and natural ecosystems.11
North American cities are embracing Smart Growth principles in
order to limit sprawl while revitalizing central cities.12 Smart Growth is a
sustainable approach to development that aims to balance economic
progress with environmental preservation and quality of life concerns.13 Smart Growth focuses development in high density, mixed-use
developments in already urbanized, pedestrian-friendly areas that either are, or will be, served by public transportation, creating complete
communities where residents can live and work with minimal reliance
on long automobile commutes.14
Canadian metropolitan areas are closer to achieving Smart
Growth.15 Much of this is due to a history of urban planning that emphasized high density and multi-use development.16 In contrast, in the
United States, through massive subsidization of the automobile industry exemplified by the interstate highway system and lack of regional
and national land use planning, sprawling suburbs became the dominant engine of population growth.17
This Note compares how the United States and Canada employ
land use regulation through a case study comparing the metropolitan
areas of Seattle, Washington (Greater Seattle) and Vancouver, British
7 Id.
8 Freilich, supra note 1, at 21–22.
9 Juergensmeyer, supra note 4, at 25.
10 Id.
11 Id.
12 Canuel, supra note 2, at 329.
13 Id. at 313.
14 See id. at 322–23.
15 See id. at 330.
16 Id. at 330.
17 Freilich, supra note 1, at 2–3, 21.
2010]
Smart Growth in Vancouver & Seattle
45
Columbia (Greater Vancouver). In particular, it examines how the Puget Sound Region has adopted successful urban planning policies that
have been instituted in Greater Vancouver. Part I explains the legal basis for land use regulation in the United States and Canada, and how
that power is administered. The Note then compares Greater Seattle
and Greater Vancouver’s geography and population statistics. Part II
discusses how Greater Vancouver and Greater Seattle have implemented land use planning to stem urban sprawl. Part III analyzes how
and why Greater Vancouver has been more successful at halting urban
sprawl than Greater Seattle due to early embracing of planning, and
recommends that American states and cities follow Greater Seattle’s
lead in implementing Greater Vancouver’s successful land use policies
on a municipal, regional and state-wide level.
I. Background
Land use in both the United States and Canada is regulated by
zoning.18 By the end of the nineteenth century, with the United States
in the midst of the rapid urbanization that accompanied the Industrial
Revolution, Americans found that unregulated development was hampering their ability to develop spacious, attractive cities.19 In 1926, the
Supreme Court of the United States held that zoning was a constitutional use of the police power reserved for the states in Village of Euclid
v. Ambler Realty Co.20 A state is free to enact zoning regulations, so long
as they are rationally related to promoting the health, safety and welfare of its citizens.21 Through enabling legislation, the state typically
delegates authority over zoning and land use planning to local municipalities.22
Growth control ordinances were first approved in 1972, in the
landmark case, Golden v. Planning Board of Ramapo.23 In Ramapo, the
18 Jack S. Frierson, How Are Local Governments Responding to Student Rental Problems in
University Towns in the United States, Canada, and England?, 33 Ga. J. Int’l & Comp. L. 497,
504 (2005).
19 Freilich, supra note 1, at 3.
20 Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395–97 (1926). The zoning upheld by Euclid allowed municipal bodies to limit the uses of private property pursuant to
social objectives. Steven Hendrix, Property Law Innovation in Latin America with Recommendations, 18 B.C. Int’l Comp. L. Rev. 1, 54 (1995).
21 Village of Euclid, 272 U.S. at 395 (citing Cusack Co. v. City of Chicago, 242 U.S. 526,
529, 530 (1917)).
22 Freilich, supra note 1, at 3.
23 Golden v. Planning Board of Ramapo, 30 N.Y.2d 360, 382–83 (1972); see Barlow Burke,
Understanding the Law of Zoning and Land Use Controls 124–26 (2002).
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New York Court of Appeals upheld a comprehensive plan that conditioned residential development on the availability of essential infrastructure.24 Proposed development that was too far from available infrastructure was halted until either the infrastructure expanded or
eighteen years elapsed, whichever event occurred first.25 The plan was
valid because it was supported by a pre-existing comprehensive planning process; did not implement permanent land use restrictions; allowed exceptions, variances, and tax relief for burdened land owners;
and was authorized by the state’s enabling statute.26 Washington State
and the Puget Sound Regional Council incorporated much of the Ramapo method into its growth management land use planning, starting
with the passage of the Growth Management Act in 1990.27
In Canada, under the Constitution Act of 1867, provinces exercise
exclusive power to enact laws affecting property and municipalities
within their respective jurisdictions.28 Zoning is a power that may be
delegated by the provincial government to the local municipalities.29
There is no Canadian constitutional right above parliamentary law protecting property.30 This differs from the Fifth Amendment in the United States, which constitutionally prohibits takings without just compensation.31 Takings are governed largely by common law.32 Like in the
United States, land use regulations must strive to avoid causing a regulatory taking of property.33
“Land use scholars have argued that the separately prepared comprehensive plan, or master plan, is the critical element to local land
regulation.”34 Some states, however, have either not required municipalities to enact comprehensive plans, or not held them to be binding.35 In Canada, provinces play a greater role than U.S. states in landuse planning by mandating municipalities to adhere to comprehensive
24 See Ramapo, 30 N.Y.2d at 382–83; Burke, supra note 23, at 125.
25 Ramapo, 30 N.Y.2d at 380; Burke, supra note 23, at 125.
26 See Ramapo, 30 N.Y.2d at 382–83; Burke, supra note 23, at 125.
27 Freilich, supra note 1, at 138.
28 Frierson, supra note 18, at 505 (2005).
29 Id.
30 Raymond Young, Vancouver: Made in America, Eh?, 17 Ga. St. U. L. Rev. 1109, 1116
(2001).
31 U.S. Const. amend. V.
32 Young, supra note 30, at 1116–17.
33 Id. at 1117.
34 Kushner, supra note 1, at 19.
35 Id.
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47
plans and provincial policy statements.36 In contrast to U.S. comprehensive plans, Canadian plans are now legally binding.37
The municipal zoning process in Canada is similar to the U.S.
process.38 Sections of a municipality are zoned for different land uses
through zoning by-laws compatible with the comprehensive plan.39 In
Canada, however, zoning by-laws must be compatible with the comprehensive plan, whereas the binding authority of the plan in the United
States varies from binding, to no plan at all, depending on the state.40
Additionally, Canadian metropolitan areas engage in more regional, coordinated planning than their American counterparts.41 In the United
States, through their neglect of zoning responsibility, states have permitted municipal governments to dominate land use policy by enacting
strategies that further only the municipality’s self interest.42
In the early 1990s, sprawl-intensive development in Greater Seattle
threatened to destroy the area’s quality of life, and with it, the region’s
economy.43 The region faced traffic congestion, population growth that
strained the environment, and depleting natural resources.44 The
Washington State legislature responded by adopting a planning mechanism for controlled growth while simultaneously promoting potential economic development.45 Washington’s Growth Management Act
(GMA) sought to reduce sprawl by encouraging development in areas
already well served by public facilities and services, by providing “efficient multimodal transportation systems,” and by maintaining quality
transportation services to match increased development.46 The GMA
aimed to integrate land use planning in Greater Seattle.47 Greater Seattle is considered to be near the forefront of using Smart Growth principles to combat urban sprawl in the United States.48
36 Frierson, supra note 18, at 504.
37 Id. at 506.
38 Id.
39 Id. at 506–07.
40 See id. at 504.
41 See Freilich, supra note 1, at 3; see, e.g., Young, supra note 30, at 1111–15.
42 Freilich, supra note 1, at 3; Kushner, supra note 1, at 43.
43 Freilich, supra note 1, at 137.
44 Id.
45 Id. at 137–38.
46 Wash. Rev. Code § 36.70A.020 (1990); Freilich, supra note 1, at 138.
47 § 36.70A.210(7); Freilich, supra note 1, at 140–41.
48 Freilich, supra note 1, at 148.
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The city of Vancouver lies just 141 miles away from Seattle.49 Since
1929, Vancouver has used various land use regulation tools to create attractive communities established at very high densities approaching
those of Manhattan, Hong Kong, or London.50 Through rigid zoning
calling for high density, mixed-use development, strong pedestrian and
public transportation networks, protection of green space, and regional
planning, Vancouver bucked the trend of many newer North American
cities like Tampa, Phoenix, Calgary, and Seattle, which relied on sprawl
for growth.51 Greater Vancouver’s land use policies have set a strong example for urban development across North America, especially for Seattle.52
Seattle and Vancouver are similar in many ways: the City of Seattle
has a population of 586,200 while the City of Vancouver had a population of 578,041 as of 2006, and both cities are abutted by mountains to
the east, and the Pacific coast on the west. 53 Yet, the two cities also have
some important differences.54 The area of the City of Seattle (84 square
miles) is nearly twice that of the City of Vancouver (44.3 square miles),
while the population density of Vancouver (48.3 people per hectare) is
nearly twice that of Seattle (25.9 people per hectare).55 Greater Seattle
(consisting of King, Snohomish, Pierce and Kitsap Counties), due to
urban sprawl, has created a joint metropolitan area with Tacoma and
had a population of 3,524,000 as of 2007.56 By contrast, Greater Vancouver has been contained around its city.57 Greater Vancouver had a
population of 2,116,581 as of 2006.58
Greater Seattle is further along than most American metropolitan
areas in trying to control sprawl and refocus development into already
urbanized areas.59 While significantly behind Greater Vancouver, Greater
49 About.com, Seattle Mileage Chart, http://gonw.about.com/library/special/blSE
Amileage.htm (last visited Mar. 23, 2010).
50 Kushner, supra note 1, at 63; Trevor Boddy, New Urbanism: “The Vancouver Model,”
16.2 Places 14, 16 (2004).
51 Boddy, supra note 50, at 16; see Young, supra note 30, at 1111–14.
52 Boddy, supra note 50, at 18.
53 Office of Intergovernmental Relations, The Greater Seattle Datasheet (2008), http://
www.seattle.gov/oir/datasheet/Datasheet2008.pdf [hereinafter Greater Seattle Datasheet];
Community Services Group, City of Vancouver, 2006 Census—Population Counts 1 (2007)
[hereinafter Vancouver Population Counts].
54 See Greater Seattle Datasheet, supra note 53; Vancouver Population Counts, supra note 53.
55 City of Vancouver Planning Department, Information Sheet: West Coast City Facts 2003,
(2003), http://www.city.vancouver.bc.ca/commsvcs/cityplans/4CitiesFacts03.pdf.
56 Greater Seattle Datasheet, supra note 53.
57 See Young, supra note 30, at 1114.
58 Vancouver Population Counts, supra note 53, at 1.
59 See Freilich, supra note 1, at 148.
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49
Seattle has reinvented itself by adopting Greater Vancouver’s successful
land use planning strategies. As a result, Greater Seattle has begun to
reverse the trend toward urban sprawl and improve the functioning of
the region’s infrastructure and the quality of life of its residents.60
A peripheral yet highly influential metric of comparison is how
each country’s national government policy has affected development.61
The United States has a highly subsidized interstate highway system,
which has fueled the exodus of many city dwellers to suburbs.62 The
construction of the interstate highway system before the advent of
comprehensive planning in most U.S. metropolitan areas led to ad-hoc
development in outlying areas without regard for basic infrastructure
needs.63 While Canada does have a highway system, it is not nearly as
extensive as the American system.64 For example, in Seattle, Interstate 5
bisects the city, Interstate 405 encircles it, and Interstate 90 enters it,
facilitating car travel from the city to the suburbs.65 Conversely, Vancouver has no major highway running through its borders.66 In addition, in
the United States, mortgage payments have been tax-deductible since
1913, which has encouraged citizens to own homes rather than rent.67
This use of tax policy has influenced many Americans’ decisions to buy
single family homes, rather than rent, fueling urban sprawl.68 Canada
has no government tax policy incentivizing home ownership.69
State and provincial government policies have also impacted land
uses in Greater Seattle and Greater Vancouver.70 Until 1990, the state of
Washington did not require municipalities to zone according to a comprehensive plan, whereas all Canadian provinces have encouraged municipalities to plan since the 1950s.71 In particular, the Greater Vancouver Regional District has coordinated planning between Vancouver and
60 See id. at 148; Young, supra note 30, at 1111–12; William Dietrich, A Tale of Three Cities: Portland and Vancouver Get Going While Seattle Stalls, Seattle Times, Feb. 2, 2003, http://
community.seattletimes.nwsource.com/archive/?date=20030202&slug=pangst2 (comparing Seattle, Vancouver, and Portland, OR).
61 Boddy, supra note 50, at 14.
62 Id.
63 Freilich, supra note 1, at 39.
64 Boddy, supra note 50, at 14.
65 Go Northwest!, Puget Sound, Washington Map, http://www.gonorthwest.com/Washington/ puget/map_puget.htm (last visited Mar. 23, 2010).
66 Boddy, supra note 50, at 15.
67 Daniel Gross, Location, Location—Deduction, Slate, Apr. 14, 2005, http://www.slate.
com/id/2116731.
68 Boddy, supra note 50, at 14; Gross, supra note 67.
69 Boddy, supra note 50, at 14.
70 Freilich, supra note 1, at 137–38; Frierson, supra note 18, at 507.
71 Freilich, supra note 1, at 137–38; Frierson, supra note 18, at 507.
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its suburbs since 1967, with the prior Lower Mainland Planning Regional Planning Board coordinating planning as early as 1948. Meanwhile, there was no framework for regional cooperation between Seattle and its suburbs across county lines until the 1990s.72
II. Discussion
A. Stopping Sprawl: Land Use Planning in Vancouver
Vancouver first instituted a comprehensive plan in 1929 (the “1929
Plan”).73 Though not legally binding, the 1929 Plan heavily influenced
the City’s zoning and land use regulations.74 The 1929 plan provided for
narrow streets that encouraged dense living friendly to pedestrian travel.75 The plan also called for complete neighborhoods, with requisite
community centers, schools, and parks.76 This led to development of
what would later be termed “complete communities,” neighborhoods
where residents could live, work, shop, educate their children, and take
advantage of parks.77
The 1929 plan continued to be highly influential as Vancouver
grew and developed.78 In the 1960s, Vancouver parted ways with dominant trends in newer North American cities such as Seattle, Los Angeles, and Phoenix by promoting high-density and mixed-use development through zoning.79 This coincided with a wave of immigration
from Hong Kong and an incorporation of Hong Kong’s architectural
ideals of high-density, mixed-use development.80 Whereas nearly every
other western North American city grew outward, Vancouver grew upward.81 Vancouver’s decades-long policy of encouraging high-density
72 Metro Vancouver, History (interactive timeline), http://www.metrovancouver.org/
about/Pages/history.aspx (last visited Mar. 23, 2010); Judy Oberlander, History of Planning in Vancouver, http://www.discovervancouver.com/GVB/vancouver–history–planning.
asp/ (last visited Mar. 23, 2010); see Freilich, supra note 1, at 137–38.
73 Elizabeth MacDonald, The Efficacy of Long–Range Physical Planning: The Case of Vancouver, J. of Planning History 176, 180 (2008).
74 Id. at 207.
75 See id. at 191, 202, 206, 207.
76 Id. at 197–98.
77 See id.
78 See id.
79 Boddy, supra note 50, at 16.
80 Id.
81 Id.
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development, complete neighborhoods, and green space was codified
in 1993’s binding CityPlan.82
In 1968, Vancouver shelved construction plans for freeways in the
city.83 Seeing studies emerging from Los Angeles that indicated that
freeways generated more traffic, encouraged sprawl, and required the
destruction of many areas of the city, Vancouver instead invested in
public transportation.84 Vancouver also chose not to implement urban
renewal projects which, in U.S. cities, destroyed neighborhoods by constructing poorly functioning public housing for the poor.85 Sprawl was
also limited, unintentionally, by a 1972 executive order to protect British Columbia agriculture, which froze all commercial and residential
development of agricultural land, strictly limiting land use to farming.86
Because much of British Columbia is covered by mountainous terrain,
undeveloped parcels of land suitable for farming or habitation are in
scarce supply. This act created a precedent for preserving undeveloped
farmland and green wilderness from development, while containing
sprawl to defined borders, 48% of the land in Greater Vancouver.87
From 1968 to 1972, a strong regional government for Greater Vancouver also developed, culminating in 1972’s Livable Region Strategic
Plan (1972 LRSP).88 A government with jurisdiction over an entire
metropolitan area is best equipped to coordinate planning, and ensures that regulations necessary to implement Smart Growth policies
are enforced.89 The 1972 LRSP has four, interrelated main components, which continue to guide the 1999 Livable Region Strategic Plan
(LRSP).90 The first involves a commitment to mass transit over freeways.91 Greater Vancouver is served by a dual-line light-rail system called
SkyTrain.92 Opened in 1985, SkyTrain helped reduce street congestion
82 See generally Vancouver City Council, CityPlan (1995) (mandating zoning according to a comprehensive plan at the municipal level to further goals of encouraging
high–density development, complete neighborhoods, and green space).
83 Young, supra note 30, at 1111.
84 Id.
85 Id.
86 Id. at 1112.
87 Id.
88 Id. at 1111–13.
89 Janice C. Griffith, Smart Governance for Smart Growth: The Need for Regional Governments, 17 Ga. St. U. L. Rev. 1019, 1019–20 (2001).
90 Greater Vancouver Regional District, Livable Region Strategic Plan 9
(1999) [hereinafter LRSP]; Young, supra note 30, at 1114–15.
91 Young, supra note 30, at 1115.
92 NationMaster.com, Encyclopedia: SkyTrain (Vancouver), http://www.nationmaster.
com/encyclopedia/SkyTrain (Vancouver) (last visited Mar. 23, 2010) [hereinafter SkyTrain
(Vancouver)].
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and fuel population and economic growth in urban neighborhoods.93
As of 2007, SkyTrain averages 220,000 riders each day and is projected
to increase by another 100,000 daily riders when the Canada line opens
in 2009.94 In 1996, Translink, a joint incorporation by the provincial
government and the Greater Vancouver Regional District, was formed
to coordinate regional transportation policy.95 It is required to develop
and adhere to a Strategic Transportation Plan, and must be consistent
with the LSRP.96 Translink also provides extensive bus and ferry services which service Greater Vancouver.97
The second component of the LRSP states that Greater Vancouver
should be a compact region.98 Out of the twenty-one municipalities in
Greater Vancouver, development is steered toward four, core municipalities around the City of Vancouver, known as the Growth Concentration Area.99 In 2000, 70% of development growth took place in the
Growth Concentration Area, while most of the remaining 30% of
growth occurred in designated town centers, which will ultimately be
linked to the core through transit.100
The third policy direction of the LRSP is to promote complete
communities.101 Downtowns of municipalities outside the Growth Concentration Area are encouraged to develop as live, work, shop, and play
towns.102 The network of downtowns distributed throughout the region
has improved resident access to services and facilities they need within
their towns, reduced travel times and distances, and improved connections between communities.103 Housing has been diversified throughout the region to provide for affordable, multi-family housing.104 In
2000, 75% of all houses under construction were multi-family developments.105 In 1991, that figure was just 25%.106
93 Graham Crampton, Economic Development Impacts of Urban Rail Transport, ERSA 2003
Conference 3 (2003); SkyTrain (Vancouver), supra note 92.
94 SkyTrain (Vancouver), supra note 92; NationMaster.com, Encyclopedia: Canada Line,
http://www.nationmaster.com/encyclopedia/Canada-Line (last visited Mar. 23, 2010).
95 Young, supra note 30, at 1115.
96 Id.
97 Vancouver Transportation Guide—Vancouver Transport, http://www.virtualvancouver.
com/transport.html (last visited Mar. 23, 2010).
98 LRSP, supra note 90, at 12.
99 LRSP, supra note 90, at 12; Young, supra note 30, at 1115.
100 Young, supra note 30, at 1115.
101 LRSP, supra note 90, at 11; see Young, supra note 30, at 1115–16.
102 LRSP, supra note 90, at 11; see Young, supra note 30, at 1115–16.
103 See LRSP, supra note 90, at 11.
104 Young, supra note 30, at 1116.
105 Id.
106 Id.
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The fourth policy direction of the LRSP is to protect the Green
Zone.107 The Green Zone defines the limit of urban expansion, and encourages a shared responsibility among the municipalities of the region
to protect lands within it.108 Much of this has already been accomplished
through the provincial statute on agricultural protection in 1972.109
Most of the land protected by this statute has been left completely undeveloped, even for farming, at the directive of British Columbia.110 The
bulk of the Green Zone is publicly owned and unavailable for development.111 The rest is maintained by various governmental authorities as
parks or environmentally protected areas.112
In 1996, the Legislative Assembly, in Part 25 of the Local Government Act, reaffirmed its support for binding Regional Growth Strategies, successful in Greater Vancouver since the 1972 LRSP.113 The members of the board responsible for developing the regional growth
strategy are appointed by municipal governments in the region.114 Given that each of Greater Vancouver’s twenty-one municipalities has
adopted the Livable Region Strategic Plan through bylaw, they must
plan and zone according to the regional plan.115
B. Seattle Follows Vancouver’s Example in Addressing Sprawl
For Greater Seattle, using planning to limit sprawl is a much more
recent phenomenon.116 During the 1980s, the region had the fastest
growing economy in the United States, with its population increasing at
a rate of 100,000 people each year.117 This growth led to a construction
boom that quickly consumed land.118 Because of a lax regulatory structure, preference for private cars and decentralized workplaces combined with accelerated growth to cause increased traffic congestion and
107 LRSP, supra note 90, at 10; Young, supra note 30, at 1116.
108 LRSP, supra note 90, at 10.
109 Young, supra note 30, at 1112, 1116.
110 Id. at 1116.
111 Id.
112 Id.
113 See generally Local Government Act, R.S.B.C., ch. 323, part 25 (1996) (British Columbia statute mandating binding regional planning).
114 Id.
115 Id.; see LRSP, supra note 90, at 26–27.
116 Freilich, supra note 1, at 137–38.
117 Id. at 140.
118 Id.
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pollution.119 Investment in Seattle’s public transportation system drastically declined from the 1940s to 1990s.120
With Washington’s passage of the GMA in 1990, Greater Seattle was
required to institute binding comprehensive plans at the municipal and
regional levels.121 Seattle’s first comprehensive plan was adopted in
1994.122 Updated in 2006, the plan furthers Smart Growth policies by
using zoning policy to promote downtown development in Urban Centers and create complete neighborhoods like in Vancouver through zoning for Urban Villages, where residents can live, work, shop and play
without the use of a car.123 The Seattle Comprehensive Plan’s map designates four downtown neighborhoods, and two uptown neighborhoods
as Urban Centers.124 Twenty-four neighborhoods are designated as Urban Villages.125 Single-family zones are protected in the plan, but development is to be steered into the Urban Centers and Urban Villages.126
Seattle has also followed Vancouver’s lead in using regional government to coordinate growth management and combat sprawl.127
Washington State delegated police powers for planning purposes to
multi-county planning agencies where contiguous counties in the same
urban area each exceed a population of 450,000.128 The Puget Sound
Regional Council (PSRC) was established just before the GMA was
passed in 1990.129 The PSRC consists of King, Kitsap, Pierce and Snohomish Counties.130 The PSRC is a planning association of cities, towns,
ports and state agencies that acts as a body for developing policies and
making decisions on regional growth strategy, transportation issues,
environmental issues, and economic development.131 The PSRC’s primary decision-making body is the General Assembly, which is composed of the elected officials from all levels of local government: county
119 Id.
120 See Walter Crowley, Interurban Rail Transit in King County and the Puget Sound Region,
HistoryLink, Sept. 19, 2000, http://www.historylink.org/index.cfm?DisplayPage=output.
cfm&File_Id=2667.
121 Wash. Rev. Code § 36.70A.210(7) (1990); Freilich, supra note 1, at 138, 140.
122 City of Seattle Comprehensive Plan: A Plan for Managing Growth 2004–
2024 (as amended 2006), at iii [hereinafter Seattle Comprehensive Plan].
123 See id. at 1.3–1.4.
124 See id. at 1.8.
125 See id.
126 See id.
127 Freilich, supra note 1, at 140–41. See generally LRSP, supra note 90.
128 Wash. Rev. Code § 36.70A.210(7).
129 Freilich, supra note 1, at 140–41.
130 Puget Sound Regional Council, Vision 2040: People—Prosperity—Planet, at
ii (2008) [hereinafter Vision 2040].
131 Freilich, supra note 1, at 140.
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55
executives and commissioners, city mayors, and members of city and
county councils.132
In 1993, the PSRC amended its Vision 2020 regional plan to establish a framework for implementing the goals specified in the GMA.133
These goals, as listed in Vision 2040, the updated regional plan released
this year, are to protect the natural environment; to focus growth and
development in central places to create communities interconnected
through transit; to improve access to housing; to pursue sustainable
economic growth; to foster a safe, clean, integrated, sustainable, and
efficient transportation system; and to support infrastructure and public service improvements that support regional planning objectives.134
These goals mirror and expand upon the goals listed in Vancouver’s
LRSP.135
One of the primary focuses of Vision 2040 is to steer development
into ‘central places,’ similar to the Growth Concentration Areas in the
LRSP, which were influenced by the ‘complete communities’ in Vancouver’s 1929 Plan.136 These central places are mixed-use pedestrianfriendly areas where residents can live, work, shop, and take part in cultural and recreational activities with easy access to transit.137 Planning
in centers combines the two goals in the LRSP of achieving a compact
metropolitan region and building complete communities.138 Vision
2040 also contains an environmental provision quite similar to the
Green Zone section of the LRSP.139 This goal is achieved by focusing
development into centers and by promoting statutory protection of
undeveloped lands at all levels of government, similar to British Columbia’s use of statutes to prevent development of possible farmlands
and areas rich in natural resources.140
Greater Seattle’s transportation policy is on its way to becoming a
functional alternative to automobile reliant commuting.141 The PSRC,
as the federally designated Metropolitan Planning Organization, is
132 Vision 2040, supra note 130, at ii.
133 Freilich, supra note 1, at 140–41.
134 Vision 2040, supra note 130, at 1.
135 See id.; LRSP, supra note 90, at 9.
136 Compare Vision 2040, supra note 130, at 51, with LRSP, supra note 90, at 12, and
MacDonald, supra note 73, at 207.
137 Vision 2040, supra note 130, at 51.
138 Id. at 1; LRSP, supra note 90, at 11–12.
139 See Vision 2040, supra note 130, at 7–14; LRSP, supra note 90, at 10.
140 Vision 2040, supra note 130, at 17; see Young, supra note 30, at 1112–13.
141 See Freilich, supra note 1, at 141.
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charged with formulating the metropolitan transportation plan.142
Greater Seattle’s public transportation is administered and maintained
by Sound Transit, created by the State legislature and approved by voters in 1996.143 Seattle has begun reinstituting street cars to provide for
transportation between Urban Villages.144 The city is also developing a
light rail system, called “Link Rail,” which initially will connect Seattle’s
downtown neighborhoods to Seattle Tacoma International Airport, located sixteen miles south of Seattle.145
When completed in 2009, the singular rail line will run vertically
through much of the city, from the downtown neighborhood of Westlake in the north to Seattle-Tacoma International Airport in the
south.146 By 2016, the Urban Centers of the University of Washington
campus and Capitol Hill will be added.147 By 2020, the City of Seattle
anticipates that 45,000 customers will travel on Seattle’s Light Rail system.148 The comprehensive plan calls for further rail development to
link Urban Villages to the Urban Centers.149 Promisingly, on November
4, 2008, Washington voters approved a massive expansion of light rail
service, adding thirty-six miles of new light rail track and nineteen stations.150 Once the approved expansion is complete in 2030, Seattle expects ridership to reach 286,000.151
III. Analysis
Even with Seattle’s improving progress in combating sprawl, it remains decades behind Vancouver and is unlikely to achieve parity with
142 Id.
143 Sound Transit, About Us, http://www.soundtransit.org/x8.xml (last visited Mar. 23,
2010).
144 See SeattleStreetCar.org, About the Streetcar, http://www.seattlestreetcar.org/about
(last visited Mar. 23, 2008).
145 Seattle Department of Transportation, Light Rail Service on Its Way, http://www.
seattle.gov/Transportation/lightrail.htm (last visited Mar. 23, 2010).
146 Id.
147 Sound Transit, University Link, http://www.soundtransit.org/x1698.xml (last visited
Mar. 23, 2010).
148 Sound Transit, Sound Transit Unveils First Central Link Light Rail Vehicle, Dec. 16,
2006, http://www.soundtransit.org/x3970.xml.
149 Seattle Comprehensive Plan, supra note 122, at 3.3.
150 Sound Transit, Mass Transit Guide: The Sound Transit 2 Plan 5 (2008), available at http://future.soundtransit.org/documents/mailer.pdf [hereinafter Sound Transit 2
Plan]; Mike Lindblom, Sound Transit Calls Prop. 1 a Gift “to Our Grandchildren,” Seattle
Times, Nov. 5, 2008, http://seattletimes.nwsource.com/html/home/index.html (enter title
of article in search box; then follow hyperlink).
151 Sound Transit 2 Plan, supra note 150, at 5.
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the Canadian city.152 The case of Vancouver highlights the importance
of planning at multiple levels on a continuous basis.153 Since 1929, the
City used a comprehensive plan to focus on developing complete
neighborhoods.154 This strategy, combined with decisions in the 1960s
and 1970s to limit highway development, implements binding regional
planning and protects land through provincial statute, which facilitated
sustainable growth in the decades leading up to the twenty-first century.155
While Greater Vancouver used urban planning to grow in a sustainable manner, Greater Seattle did not begin to take planning seriously until the early 1990s, when sprawl had already irreversibly developed across four counties in the Puget Sound region.156 In the United
States, comprehensive planning based on timed growth did not become evident until the influential Ramapo decision in 1972.157 Because
of parliamentary supremacy (until 1982), and later, the absence of
property rights in its Constitution, Canadian metropolitan areas did not
have Constitutional concerns with substantive due process.158 It appears
this led to the unquestioned ability of Greater Vancouver to provide for
regional planning through the LRSP in 1973.159 The 1970s and 1980s
were decades of fast-paced growth in the Pacific Northwest.160
Greater Vancouver’s ability to enforce a cohesive, regional comprehensive plan on its municipalities, combined with British Columbia’s statute protecting much of the arable land, ensured development
proceeded according to clear, policy objectives.161 During that same
time period, the lack of land use planning, especially regionally, in
Greater Seattle led to the rapid sprawl-based growth, and the negative
consequences that accompany it.162 Since 1973, every municipality in
Greater Vancouver has had to zone according to the LRSP.163 That has
only been the case in Greater Seattle since 1993.164 Thus, in the most
152 See Dietrich, supra note 60; Sightline Institute, Seven Northwest Cities: The Smart–
Growth Ranking (2007), http://www.sightline.org/maps/charts/Sprawl-ByCity-CS07.
153 See Young, supra note 30, at 1114.
154 See Oberlander, supra note 72.
155 See Young, supra note 30, at 1111–12, 1115.
156 See Freilich, supra note 1, at 137, 140.
157 Id. at 31.
158 See Young, supra note 30, at 1116–17.
159 See id.
160 See Vision 2040, supra note 130, at 6; LRSP, supra note 90, at 6.
161 See Young, supra note 30, at 1111–15.
162 See Freilich, supra note 1, at 137, 140.
163 See Young, supra note 30, at 1114.
164 See Freilich, supra note 1, at 140–41.
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explosive period of growth in the Pacific Northwest, Greater Vancouver
limited sprawl through planning while Greater Seattle’s lack of planning encouraged it, resulting in the differences between the regions
that persists to this day.165
Greater Vancouver has shown that with dedicated and consistent
planning, Smart Growth can be achieved in an area with a rapidly expanding population.166 Smaller, growing metropolitan areas can still
prevent urban sprawl, rather than just contain it as Greater Seattle has
done.167 Through focusing development in urban areas, implementing
binding regional planning, and enacting statutory protection of outlying areas, growing North American cities can develop sustainably.168
Greater Seattle and the State of Washington’s exercise of land use
planning to mitigate the negative effects of sprawl also serves as a useful
model for cities suffering the effects of urban sprawl.169 They have developed one of the United States’ most successful land use planning
regimes.170 Their strides since 1990, however, pale in comparison to the
results of decades of Smart Growth policy embraced by Greater Vancouver and British Columbia.171 U.S. metropolitan areas should implement comprehensive planning at the municipal and regional level,
backed by a strong state statute, focusing development into already urbanized areas, develop public transportation systems, and create common, binding regional goals like Seattle has done.172
Conclusion
This analysis of land use policy in Greater Vancouver and Greater
Seattle highlights the importance of planning at multiple levels of government in halting urban sprawl. In adopting many of Greater Vancouver and British Columbia’s successful Smart Growth planning legislation, Greater Seattle and the State of Washington have made significant
advances in addressing urban sprawl. The updated comprehensive
plans at the municipal and regional levels have bound Greater Seattle
to focus development in urbanized areas, provide its residents with better transportation options, and will facilitate the development of func165 See id. at 137, 140; Young, supra note 30, at 1111–15.
166 See Young, supra note 30, 1111–15.
167 See Freilich, supra note 1, at 137, 140; Young, supra note 30, at 1111–15.
168 See Freilich, supra note 1, at 30–31.
169 See id. at 148.
170 See id.
171 See id. at 137, 140, 148; Young, supra note 30, at 1111–15; Dietrich, supra note 60.
172 See Freilich, supra note 1, at 30–31.
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59
tional neighborhoods. Nevertheless, Seattle has a long way to go due to
its late start. That Greater Seattle is currently one of the United States’
Smart Growth success stories underscores how far American cities and
states are from from halting urban sprawl. In an era of ever-increasing
commutes, high energy prices, depleting natural resources, a decaying
environment and global warming, it is imperative that state governments implement legislation providing for mandatory, binding comprehensive planning at the municipal and regional levels as quickly as
possible.
INSERTED BLANK PAGE
CHASING GHOSTS: PURSUING
RETROACTIVE JUSTICE FOR FRANCO-ERA
CRIMES AGAINST HUMANITY
Angela M. Guarino*
Abstract: In October 2008, Judge Baltasar Garzón declared himself competent to open Spain’s first criminal investigation of Franco-era atrocities.
His decision formally classified the 114,000 executions and thousands of
forced disappearances that occurred during the Spanish Civil War and
ensuing dictatorship as crimes against humanity. It also accused Francisco
Franco and thirty-four of his generals and ministers of having committed
these crimes. Throughout Spain’s transition to democracy and beyond,
Spain has adhered to a “pact of forgetting,” formalized by a 1977 amnesty
law, in which political leaders agreed that regime members would not be
prosecuted for their acts. Given this traditional silence and the fact that
the majority of the acts concerned were committed seventy years ago, critics disputed Judge Garzón’s jurisdiction over the action. This Note considers four jurisdictional obstacles to prosecution and whether international law provides a method through which they might be overcome.
Si muero,
dejad el balcón abierto.
El niño come naranjas.
(Desde mi balcón lo veo.)
El segador siega el trigo.
(Desde mi balcón lo siento.)
¡Si muero,
dejad el balcón abierto!
—Federico García Lorca, El balcón1
Introduction
Famed Spanish poet and playwright Federico García Lorca penned
the above verses at the age of twenty-three, fifteen years before his tragic
execution by a Nationalist firing squad at the beginning of the Spanish
* Angela M. Guarino is the Executive Articles Editor of the Boston College International
& Comparative Law Review. She would like to thank her parents for their constant support
and her Spanish instructors throughout the years for their dedication and encouragement.
1 Federico García Lorca, El balcón, reprinted in Jason Webster, ¡Guerra!: Living in the
Shadows of the Spanish Civil War 79–80 (2006). The poem’s translation is: “If I die, / leave
the balcony open. / The child eats oranges. / (I see him from my balcony.) / The reaper harvests the wheat. / (I sense him from my balcony.) / If I die, / leave the balcony open!” (author’s translation).
61
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Civil War.2 His body was thrown into a mass grave in a Granadan mountainside, representing one of several thousand victims of Francoist forces
whose ties to the defeated Republican side of the Spanish Civil War led
to the same fate.3 From the beginning of the 1936–1939 War to Franco’s
death in November 1975, approximately 150,000 Republican lives were
claimed.4 While Franco’s regime recovered the majority of Nationalist
victims’ bodies and granted reparations to the winning side for its losses,
the same treatment certainly was not extended to Republican casualties
and their families.5 Thousands of individuals “disappeared,” with their
deaths left unregistered.6 It has been estimated that those buried in
mass graves could total 100,000 or more.7
Traditionally, silence has shrouded the wrongs committed during
the Civil War and the near forty-year dictatorship that followed.8 After
Franco’s death, Spaniards and their political leaders chose to leave
painful memories behind in a “pacto del olvido”(“pact of forgetting”) in
order to make a peaceful transition to democracy.9 In line with that
pact, those responsible for the mass suffering of the Franco era were
never pursued.10 For this reason, Judge Baltasar Garzón’s October 2008
decision to open Spain’s first criminal investigation into executions
conducted by Franco and his henchmen was a stunning development.11
In a sixty-eight page court document, Judge Garzón,12 who sits on the
Audiencia Nacional, Spain’s highest criminal court, accepted a petition
filed by thirteen associations of Republican victims’ families seeking
2 See Dale Fuchs, Judge Orders Investigation of Executions in Franco Era, N.Y. Times, Oct.
17, 2008, at A8; Marina Montes Pérez, Si muero, dejad el balcón abierto . . . , Elplural.com,
Aug. 18, 2008, http://www.elplural.com/andalucia/opinion/detail.php?id=24080.
3 See Webster, supra note 1, at 79; Fuchs, supra note 2.
4 Mike Elkin, Judge Seeks to Clarify Fate of Franco Victims, Guardian (London), Sept. 3,
2008, at 20.
5 See id.; Fuchs, supra note 2.
6 Francisco J. Romero Salvadó, The Spanish Civil War: Origins, Course and
Outcomes 188 (2005).
7 Elkin, supra note 4.
8 See Webster, supra note 1, at 9; Fuchs, supra note 2.
9 Webster, supra note 1, at 87; Fuchs, supra note 2.
10 Ghost Story, Economist, Oct. 25, 2008, at 36.
11 See Giles Tremlett, Franco Repression Ruled As a Crime Against Humanity, Guardian
(London), Oct. 17, 2008, at 31.
12 Judge Garzón’s predilection for challenging legal limits to pursue human rights violators is well-known. Victoria Burnett, Spanish Judge Drops Inquiry into Atrocities of Franco and
Allies, N.Y. Times, Nov. 19, 2008, at A7. For instance, in 1998, Garzón had former Chilean
dictator Augusto Pinochet arrested on the general’s visit to London while Garzón endeavored to extradite him to Spain to prosecute him for crimes against humanity. Id.; Ghost
Story, supra note 10.
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information surrounding the forced disappearances of thousands.13 In
this acceptance, Judge Garzón both declared himself competent to investigate the killings of 114,000 people and ordered the exhumation of
nineteen mass graves, including that believed to contain the remains of
Federico García Lorca.14 Most importantly, the judge formally declared
the atrocities carried out by Franco and his allies as crimes against humanity for the first time, and accused the former dictator and thirtyfour of his generals and ministers of these acts.15
Judge Garzón’s controversial October 2008 decision sparked heated
criticism from Spanish conservatives, who admonished that scrutinizing
past acts would only reopen old wounds in Spanish society.16 The impending investigation also triggered intense debate in legal circles as to
whether the judge would even have jurisdiction over the crimes.17 The
realities that the crimes were covered by an amnesty law passed in 1977
and committed seventy years ago by now-deceased individuals were chief
among these concerns; in fact, they were raised by state prosecutors in a
formal appeal of Judge Garzón’s jurisdiction.18 Following this challenge,
Judge Garzón ultimately decided to drop the case against Franco and his
allies on November 18, 2008.19 The judge issued a 152-page statement
that ceded responsibility to regional courts for opening the nineteen
mass graves he had ordered exhumed the previous month.20
This Note focuses on the various jurisdictional obstacles that stood
in Judge Garzón’s path in his attempt to try Franco and thirty-four of his
followers for crimes against humanity, and whether international law
13 Fuchs, supra note 2; Katherine Iliopolous, Spain’s Memory War: Judge Halts Attempt to
Enforce Justice for Franco’s Killings, Crimes of War Project, Nov. 19, 2008, http://www.crimes
ofwar.org/onnews/news-spain.html.
14 Burnett, supra note 12; Fuchs, supra note 2.
15 Burnett, supra note 12; Tremlett, supra note 11.
16 See Burnett, supra note 12; Fuchs, supra note 2.
17 See Rachel Nolan, Reviving Spain’s Ghosts: Judge Looking into Fate of Franco’s Victims, Spiegel Online Int’l, Sept. 3, 2008, http://www.spiegel.de/international/europe/
0,1518,576051,00.html.
18 See Burnett, supra note 12. In fact, in September 2009, Judge Garzón was called to testify
before the Spanish Supreme Court in relation to a complaint filed by the right-wing organization Manos Limpias (Clean Hands), which avers that, given the 1977 Amnesty Law, Judge
Garzón knowingly overstepped legal boundaries in pursuing his October 2008 inquiry. Judge
Garzón in the Dock, Economist, Sept. 12, 2009, at 58; Spanish Judge Faces Supreme Court, BBC
News Online, Sept. 9, 2009, http://news.bbc.co.uk/go/pr/fr/-/2/hi/europe/ 8245664.stm.
19 Burnett, supra note 12.
20 Id. For a copy of Judge Garzón’s statement in its original Spanish, see A.N., Nov. 18,
2008 (Sumario (Proc. Ordinario) 53/2008 E), http://www.crimesofwar.org/onnews/newsspain.html (follow “Judge Garzon’s statement of November 18” hyperlink) [hereinafter
Judge Garzón’s Statement].
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provides an avenue to overcome these obstacles. Part I traces the crimes
against humanity committed during the Franco era, the reasoning behind the “pact of forgetting,” the 1977 Amnesty Law that blocked prior
prosecution of the wrongs committed, and the recent movement towards breaking the silence surrounding the atrocities. This section concludes with an introduction to truth commissions as an alternative forum to seeking justice in cases where traditional criminal prosecution
may prove unworkable. Part II of the Note weighs the individual jurisdictional obstacles blocking a possible investigation of Spain’s potential
obligations under international law to investigate crimes against humanity. Part III considers whether, after respecting jurisdictional roadblocks,
an alternative method to a formal criminal investigation of Franco and
his allies may still exist in the form of a Spanish truth commission.
I. Background
A. Crimes Against Humanity and Francoist Repression
Judge Garzón planned to try Franco and thirty-four of his followers for their responsibility for “mass killings, torture and the systematic,
general and illegal detentions of political opponents” without disclosing their whereabouts as crimes against humanity.21 Historical accounts
of Nationalist treatment of Republican forces during the War, as well as
the Francoist regime’s repressive practices following, indicate an investigation would find such crimes occurred.22
As Richard Herr summarizes, the early stages of the 1936–1939
Civil War were characterized by “ferocious cruelty.”23 As Nationalist
forces seized control of cities and towns in the Franco-led military coup
against the democratically-elected government of the Popular Front,24
troops would hunt down not only those bearing arms against them, but
also anyone believed to sympathize with the Republican cause.25 Waves
21 Tremlett, supra note 11; Iliopoulos, supra note 13. The acts Judge Garzón alleged in
his October 2008 statement would fit the Rome Statute’s definition of crimes against humanity. See Rome Statute of the International Criminal Court art. 7, July 17, 1998, 2187
U.N.T.S. 90 [hereinafter Rome Statute].
22 See Richard Herr, An Historical Essay on Modern Spain 190, 212 (1971).
23 Id. at 190.
24 The Popular Front was an electoral alliance of left-wing parties, including Republicans, Socialists, and the Spanish Communist Party, that won a narrow victory in the 1936
elections to claim control of the Spanish Parliament. See id. at 181–82.
25 Id. at 190. These groups included those who had belonged to workers’ and leftist
organizations, freemasons, and anyone who had supported the Popular Front. Id. Intellec-
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65
of these individuals were condemned on mere hearsay without trial,
loaded onto trucks, taken to deserted areas outside city boundaries,
summarily shot, and buried in mass, shallow graves that began dotting
the Spanish countryside in the wake of the advancing Nationalists.26
None of this violence in areas lacking organized armed resistance was
“necessary” from a military standpoint.27
Francoist atrocities persisted even after the official end of the Civil
War in April 1939, behind the dictator’s philosophy that the vencedores
(victors) should enjoy their spoils, while the vencidos (vanquished)
should suffer a cruel repression which included persecution, execution,
torture, or exile.28 Franco undertook a “reign of terror” upon victory
whereby via a 1939 law, all persons who had engaged in subversion or
had opposed the Nationalist regime, even by a demonstrated passivity,
were considered criminals.29 An estimated one million men were imprisoned on this basis, with thousands condemned to death and executed outside cities like Madrid and Barcelona at a steady pace through
1941.30 Explicit orders often precluded the issuance of death certificates, even in cases of courageous family members willing to identify the
corpses of the executed.31 Additionally during this period, military
courts issued life or long-term sentences to hundreds of thousands of
other victims.32 Large numbers among them perished from disease or
malnutrition in overcrowded prisons, where individuals were also subject to frequent humiliation, beatings, and torture.33
tuals and doctors were especially targeted, as considered political leftists. Gabriel Jackson, A Concise History of the Spanish Civil War 82 (1974).
26 Herr, supra note 22, at 190; Michael Richards, A Time of Silence 38 (1998).
27 Richards, supra note 26, at 38.
28 Raymond Carr, Spain: Dictatorship to Democracy 18–19 (1981).
29 Herr, supra note 22, at 212.
30 Id. An estimated 200,000 death sentences were issued during this period. Id. Although the vast majority of post-war executions occurred in the five to six-year period immediately following the war, it should be noted that the Francoist regime continued to
execute those identified as enemies until the end of the dictatorship in the 1970s. Richards, supra note 26, at 30.
31 See Richards, supra note 26, at 30.
32 Herr, supra note 22, at 212; see Salvadó, supra note 6, at 190.
33 Herr, supra note 22, at 212; Salvadó, supra note 6, at 190. It should be noted that
children of alleged Republican-sympathizer parents endured a different type of disappearance during this period. See Victoria Burnett, Families Search for Truth of Spain’s “Lost Children,” N.Y. Times, Mar. 1, 2009, at A12. It is estimated that hundreds of minors were taken
from their biological families and adopted or sent to religious schools or state-run homes
for political reorientation. In some instances, these minors were stripped of their true
identities and given new ones. Id.
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B. A “Pact of Forgetting”
As Spain entered the post-Franco era in the mid-1970s, a “culture
of silence” became the norm in a country looking to leave the painful
truths of the Civil War and ensuing dictatorship in the past.34 This culture was particularly prevalent in the political realm, where the new
political elites of both the right and left abided by a tacit, unwritten
pact known as the “pacto del olvido,” or “pact of forgetting,” when it
came to the wrongs committed and bitter divisions created during the
previous four decades.35 As a result, a spirit of consensus pervaded
Spain’s transitional period from dictatorship to democracy, enabling
representatives of the old, Francoist order and an opposition seeking a
quick, complete eradication of Francoism to reform the system through
the legal framework of the former regime.36
In the end, the “pact of forgetting” helped fuel Spain’s remarkable
political transformation after Franco’s death in 1975 to the extent that
the nation was able to hold its first peaceful, democratic national election under two years after the dictator’s passing.37 For this reason, it is
still considered a pillar of Spanish democracy.38 A 1977 general amnesty
law officially codified the pact and served to insulate any who may have
committed politically-motivated crimes that occurred before the transition from prosecution.39 Under the Amnesty Law of 1977, which remains in existence today, it was understood that Franco’s allies could
and would not be tried for any past wrongs.40
C. Breaking the Silence
A movement in favor of breaking the silence surrounding Francoera atrocities had been gaining support well ahead of Judge Garzón’s
proposed investigation, as Spain moved into its third decade removed
from the democratic transition.41 For instance, since 2000, under the
auspices of the non-profit Association for the Recovery of Historical
11.
34 Webster, supra note 1, at 244; see Ghost Story, supra note 10.
35 Salvadó, supra note 6, at 192; Tremlett, supra note 11; see Ghost Story, supra note 10.
36 See Carr, supra note 28, at 209, 220–21; Salvadó, supra note 6, at 192.
37 See Carr, supra note 28, at 227; Salvadó, supra note 6, at 192; Tremlett, supra note
38 Fuchs, supra note 2; Nolan, supra note 17.
39 Amnesty Law (B.O.E. 1977, 24937), available at http://www.boe.es/aeboe/consultas/
bases_datos/doc.php?coleccion=iberlex&id=1977/24937; see Iliopoulos, supra note 13; Ghost
Story, supra note 10.
40 See Fuchs, supra note 2; Ghost Story, supra note 10.
41 See Ghost Story, supra note 10.
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Memory (ARMH), teams of volunteer forensics, archaeologists, and anthropologists have worked to excavate 120 mass graves containing the
remains of about 1200 people.42 Most recently, Judge Garzón’s planned
criminal investigation of Franco and his allies for crimes against humanity was fueled by around 1200 petitions received from families and associations seeking information on victims who disappeared from the beginning of the Civil War to the end of the dictatorship.43
The most significant development indicating a newfound momentum toward moving past the “pact of forgetting” was the Spanish Parliament’s passage of the Historical Memory Law in 2007, despite sharp
criticism from the political right.44 The legislation represents the first
instance in which Spain’s democratic government formally condemned
the Francoist Civil War activities and the dictatorship that followed.45
The Law’s stated objective is “recogniz[ing] and widen[ing] the rights
of those who suffered persecution or violence for political, ideological
or religious reasons.”46 Its provisions call for a removal of Francoist
symbols from public places and for town halls to facilitate the exhumation of the unmarked mass graves.47 The Law also acknowledges that
the summary trials conducted by Francoist forces against civilians accused of supporting the Republican government were illegitimate.48
Given the promise of the Historical Memory Law and Judge
Garzón’s initial commitment to criminally investigating Franco-era
atrocities,49 advocates looking to the state to finally assume responsibility for exhuming mass graves and pursuing some form of retroactive
justice were understandably frustrated with the judge’s ultimate decision to abandon the case.50 Despite the Historical Memory Law’s symbolic promise to support grave exhumation and the victim identification process, such efforts are in actuality reliant on weekend volunteers
and have received little official backing.51 Moreover, turning to the regional courts indicated in Judge Garzón’s November 2008 statement
42 Elkin, supra note 4.
43 Id.
44 See id.; Tremlett, supra note 11. For the full Spanish text of the Historical Memory Law,
see Historical Memory Law (B.O.E. 2007, 22296), available at http://www.boe.es/aeboe/
consultas/bases_datos/doc.php?coleccion=iberlex&id=2007/22296.
45 Main Points of Spain’s Historical Memory Law, Int’l Herald Trib., Oct. 31, 2007.
46 Id.
47 Id.
48 Id.
49 See Nolan, supra note 17; Tremlett, supra note 11.
50 See Burnett, supra note 12.
51 Id.; Elkin, supra note 4.
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would likely be futile, as past attempts to prompt these courts to open
investigations were generally unsuccessful.52
Judge Garzón’s decision to drop his High Court investigation of
crimes against humanity committed under Franco was met with renewed
international criticism that Spanish courts are more than willing to investigate such crimes when committed in other countries yet steadfastly refuse to investigate those of the Franco era.53 Amnesty International
called for Spain to abide by its international obligations and launch an
effective judicial inquiry into the disappearances of the Franco era in
November 2008, on the heels of U.N. Human Rights Committee (HRC)
recommendations in the same vein.54 Stakes are thus high in both the
international and domestic arenas to overcome jurisdictional obstacles
towards a workable method of investigating the crimes against humanity
committed in Franco’s Spain.55
D. Truth Commissions
While much of the debate swirling around Judge Garzón’s October 2008 decision to criminally prosecute Franco and thirty-four of his
supporters centered on the 1977 Amnesty Law and other jurisdictional
concerns, the question of how a future investigation might be conducted remained open.56 The HRC recommended Spanish consideration of a truth commission for this purpose, which is a suggestion Judge
Garzón himself had posed in the past.57
Depending on the manner in which a truth commission is defined, approximately thirty have been established worldwide.58 These
bodies have, in general terms, aimed to promote social and political
healing and reconciliation during a period of democratic transition or
52 Burnett, supra note 12.
53 Tremlett, supra note 11; Iliopolous, supra note 13.
54 Press Release, Amnesty International, Spain: No Global Exception When Investigating
the Crimes of the Past, AI Index PRE01/285/2008 (Nov. 13, 2008), available at http://
www.amnesty.org/en/for-media/press-releases/spain-no-global-exception-when-investigatingcrimes-past-20081113 [hereinafter No Global Exception].
55 See id.; Burnett, supra note 12.
56 See, e.g., Tremlett, supra note 11; Ghost Story, supra note 10.
57 U.N. HRC, 94th Sess. at 2, U.N. Doc. CCPR/C/ESP/CO/5 (Oct. 13–31, 2008) [hereinafter U.N. HRC, 94th Sess.]; Christopher K. Connolly, Note, Living on the Past: The Role
of Truth Commissions in Post-Conflict Societies and the Case Study of Northern Ireland, 39 Cornell Int’l L.J. 401, 403 (2006). The ARMH currently leading the volunteer initiative for
mass grave exhumation would also welcome this approach. See Elkin, supra note 4.
58 Michael Nesbitt, Lessons from the Sam Hinga Norman Decision of the Special Court for Sierra Leone: How Trials and Truth Commissions Can Co-exist, 8 German L.J. 977, 979 (2007).
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post-intrastate conflict.59 While criminal trials are defendant-centric,
truth commissions are regarded as more victim-focused, as they provide
an opportunity for direct victims, victims’ relatives, or even perpetrators
to provide evidence of human rights violations in an official forum.60
Unlike a court or administrative tribunal setting, in which the primary
function is adjudication, a truth commission is primarily geared toward
a fact-finding investigation of past abuses.61 In this way, one commentator, Mark Freeman, finds truth commissions have provided the international community with valuable alternative fora in which “historical justice” may be obtained for victims and society in cases where traditional
criminal justice could not be pursued.62
Generally, a branch of a state’s domestic government will make the
decision to sponsor a truth commission and will lay the commission’s
foundation by appointing its commissioners and establishing its mandate, or charter.63 As there is no set commission model universally applicable to states’ individual situations, a state will structure the forum
to fit its circumstances.64 States thus appoint varied numbers and personalities accordingly.65 For instance, a commission may be composed
of all foreigners (El Salvador), all nationals (Uganda), or a combination of the two (Sierra Leone).66 Ultimately, the body’s composition will
affect the appearance of independent fact-finding and credibility in the
eyes of national and international observers.67
A truth commission’s mandate, which defines the body’s mission
and scope of investigation, may likewise be adapted on a case-by-case
basis to suit a nation’s needs.68 Such a mandate can be broad, as was the
case with the South African Truth and Reconciliation Commission,
59 Carsten Stahn, Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor, 95 Am. J. Int’l L. 952, 953 (2001).
60 See Modibo Ocran, Nation Building in Africa and the Role of the Judiciary, 28 N. Ill. U.
L. Rev. 169, 180 (2008); Patricia M. Wald, Foreword: War Tales and War Trials, 106 Mich. L.
Rev. 901, 920 (2008).
61 See Mark Freeman, Truth Commissions and Procedural Fairness 14 (2006);
Connolly, supra note 57, at 403–04.
62 Freeman, supra note 61, at 11 & n.28 (citing Ruti G. Teitel, Transitional Justice
81–92 (2000)). Freeman defines “historical justice” as “a perception on the part of victims
and society that the worst crimes of the past have been adequately identified and acknowledged.” Id. at 11 n.28.
63 See id. at 27–28.
64 Connolly, supra note 57, at 404–05.
65 See Freeman, supra note 61, at 29–30 (noting the presence of a few to a dozen commissioners as well as individuals of varied educational and professional backgrounds).
66 Id.
67 See id. at 29.
68 See Ocran, supra note 60, at 180–81.
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which was authorized to investigate gross violations of human rights in
many forms.69 Alternatively, the mandate can be narrowed to an investigation of very specific events, as was the case with the Chilean National Commission on Truth and Reconciliation, which operated within
a restrictive political environment.70 The Chilean commission’s objective was limited to investigating and disclosing events that ended in
death or the presumption of death, and the forum was charged with
accounting for every person who had been killed or had disappeared,
and recommending reparation measures.71
The mandate will also dictate a commission’s inquiry, subpoena,
and search and seizure powers.72 History indicates the importance of
conferring broad powers on a commission in this regard, as blocked
access to testimony and relevant documents thwarts the forum’s factfinding capacity.73 Additionally, statement-taking should occur in convenient and widespread locations to promote the participation of victims, victims’ relatives, or other witnesses.74 The Argentine National
Commission on the Disappeared provides an exemplary model in this
respect, as Commission representatives took depositions in a central
Buenos Aires office and traveled to provincial capitals and remote
countryside regions to collect stories.75
A final, and critical, issue facing states structuring a mandate is that
of whether and how to hold those who have committed human rights
abuses accountable.76 Some past truth commission models have promoted the concept of retributive justice by laying the foundation for
later judicial prosecutions or by assigning responsibility to named individual actors in final reports.77 In pursuing retributive justice, it is ex69 See Teresa Godwin Phelps, Shattered Voices: Language, Violence, and the
Work of Truth Commissions 105, 112, 159 n.29 (2004).
70 See id. at 91–92.
71 See id.
72 See Andrew N. Keller, To Name or Not to Name? The Commission for Historical Clarification in Guatemala, Its Mandate, and the Decision Not to Identify Individual Perpetrators, 13 Fla. J.
Int’l L. 289, 302 (2001).
73 See Stahn, supra note 59, at 955; see also Keller, supra note 72, at 302 (noting the difficulties faced by the Guatemalan Commission for Historical Clarification given it could not
subpoena witnesses and did not possess search and seizure powers).
74 See Freeman, supra note 61, at 302.
75 See Phelps, supra note 69, at 83–84.
76 See Elizabeth Kiss, Moral Ambition Within and Beyond Political Constraints: Reflections on
Restorative Justice, in Truth v. Justice: The Morality of Truth Commissions 68, 74–75
(Robert I. Rotberg & Dennis Thompson eds., 2000).
77 See Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth
Commissions 107–08 (2002); Kiss, supra note 76, at 75. Hayner finds that although the
majority of truth commissions had the authority to name offenders, few have exercised this
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pected that implicating evidence is proven relevant, probative, and reliable, and that named offenders would have the opportunity to defend
their names according to accepted norms of procedural fairness.78 In
other instances, commissions have served as alternatives to trials rather
than leading to them, and have opted against naming individual perpetrators in final reports.79 As the Guatemalan Commission for Historical
Clarification (CEH) mandate demonstrates, this model may be adopted
by necessity to avoid potential legal or political hurdles entangled with
prosecution, such as threats of civil and military unrest.80 Other impediments may include political amnesty provisions, due process concerns affecting the rights of the accused, and statutes of limitation.81
Although cases leaving perpetrators unnamed lack a retributive justice
element, observers such as Elizabeth Kiss suggest that certain “restorative justice” benefits emerge, including: affirming and restoring the dignity of human rights victims, acknowledging the atrocities they suffered,
and fostering respect of human rights in a society where past divisions
may be reconciled.82
II. Discussion
A. 1977 Amnesty Law
A principal obstacle critics have cited in regards to any criminal investigation of Franco and the named officers under him is domestic legislation in the form of the 1977 Amnesty Law.83 There are two prongs to
the argument that international law compels Spain to prosecute Franco
and his allies for crimes against humanity regardless of this apparent
power. Hayner, supra note 77, at 107–08 (citing El Salvador, Chad, the second commission
of the African National Congress, and the South African Truth and Reconciliation Commission).
78 See Kent Greenawalt, Amnesty’s Justice, in Truth v. Justice, supra note 76, at 189, 203
(noting that even if criminal prosecution does not follow, naming an individual a murderer or torturer has serious consequences, which warrants certain due process protections); Freeman, supra note 61, at 314.
79 See Hayner, supra note 77; Kiss, supra note 76, at 75.
80 See Keller, supra note 72, at 290, 298, 300; Kiss, supra note 76, at 75. The CEH mandate reflected a peaceful political compromise between the Guatemalan State and the
Guatemalan National Revolutionary Unity, a leftist guerilla group. Keller, supra note 72, at
290, 298. The mandate prohibited attributing responsibility to individual offenders and
stipulated the end report would have no “judicial aim or effect.” Id. at 300.
81 Kiss, supra note 76, at 75.
82 See id. at 79.
83 See Burnett, supra note 12; Ghost Story, supra note 10.
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roadblock.84 First, leaving nullum crimen sine lege concerns aside for a
moment,85 Spain must abide by its international treaty obligations,86
namely, its obligations under the International Covenant on Civil and
Political Rights (ICCPR), as the U.N. HRC recently observed in its October 2008 recommendations to Spain.87 The ICCPR’s Article 7 stipulates that “no one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.”88 The HRC viewed the atrocities
committed during the Franco era as crimes against humanity that fit this
definition, thus requiring investigation.89 In addition, the HRC has previously read Article 7 with Article 2 to require the appropriate authorities in member countries to investigate such acts, hold those found
guilty of their commission responsible, and provide effective remedies
for victims, including the right to compensation.90 The HRC’s October
2008 recommendations insisted amnesties for serious violations of human rights, such as the 1977 Amnesty Law, are incompatible with the
ICCPR, and called Spain’s attention to its General Comment No. 20
(1992) for confirmation of the issue.91 Judge Garzón’s November 2008
statement similarly asserted that amnesty enforcement is irreconcilable
84 See U.N. HRC, 94th Sess., supra note 57 (treaty obligations); Roman Boed, The Effect of
a Domestic Amnesty on the Ability of Foreign States to Prosecute Alleged Perpetrators of Serious Human
Rights Violations, 33 Cornell Int’l L.J. 297, 314 (2000) (customary international law).
85 See infra Part II.C.
86 The Spanish Constitution of 1978 mandates that “validly concluded international
treaties, once officially published in Spain, shall constitute part of [Spain’s] internal legal
order.” C.E. art. 96, § 1.
87 See U.N. HRC, 94th Sess., supra note 57. Spain ratified the ICCPR on April 27, 1977,
and the pact was officially published in Spain three days later. Amnesty Int’l (Spain), España: La obligación de investigar los crímenes del pasado y garantizar los derechos de las víctimas de
desaparición forzada durante la Guerra Civil y el franquismo, AI Index EUR410008-20809, Nov.
2008, at 25 [hereinafter La obligación de investigar].
88 International Covenant on Civil and Political Rights art. 7, Dec. 16, 1966, 999
U.N.T.S. 171 [hereinafter ICCPR].
89 See U.N. HRC, 94th Sess., supra note 57. It is noteworthy that the HRC recognizes an
additional element of torture inherent to forced disappearances, whereby the family of a
victim suffers torture in the form of stress, anguish, and incertitude when victims or their
remains have not been identified. See La obligación de investigar, supra note 87, at 20. Such a
situation represents a violation of the ICCPR and a further reason to investigate. See id.
90 Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights
Violations in International Law, 78 Cal. L. Rev. 449, 477 (1990).
91 U.N. HRC, 94th Sess., supra note 57; see also U.N. HRC, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman, or Degrading Treatment or Punishment),
¶¶ 14–15, U.N. Doc. HRI/GEN/1/Rev.7 (Mar. 10, 1992) (pertaining to appropriate redress and amnesties). Provided that the Amnesty Law was enacted on October 15, 1977,
after Spain had ratified the ICCPR and bound itself to the international responsibilities
therein, the amnesty arguably may not be considered a domestic “preconstitutional norm.”
La obligación de investigar, supra note 87, at 25.
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with the ICCPR and stressed that Article 15, Section 2 in no way admits
political exceptions to punishing individuals for criminal acts against the
law of nations.92
Secondly, commentators such as M. Cherif Bassiouni argue that
customary international law has recognized crimes against humanity for
over a half-century and includes a duty to prosecute those who have allegedly committed such crimes.93 This position finds consensus across a
variety of sources.94 For one, grants of amnesty to offenders would clash
with the concept of individual criminal responsibility contained in the
Nuremberg Charter and Judgment, which prevented those responsible
for crimes against humanity from enjoying any possibility of immunity.95
The position also finds support in the Rome Statute’s Preamble, which
states that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,” as well as Article 5
of the recent Draft International Convention for the Protection of All
Persons from Enforced Disappearance.96 Finally, an array of resolutions
advances a customary duty to prosecute, regardless of amnesties.97 For
instance, Judge Garzón highlights a 1984 Council of Europe Parliamentary Assembly Resolution that calls member state governments to recognize enforced disappearances as crimes against humanity that “may
not be covered by amnesty laws.”98
In reality, however, it is unclear whether international law obligates
countries to prosecute individuals for crimes against humanity in a case
92 Judge Garzón’s Statement, supra note 20, at 91; see ICCPR, supra note 88, art. 15, § 2.
93 M. Cherif Bassiouni, Crimes Against Humanity, in Crimes of War: What the Public
Should Know 135, 136 (Roy Gutman et al. eds., 2d ed. 2007); see Boed, supra note 84, at
314. Bassiouni would add crimes against humanity are non-derogable jus cogens crimes,
strengthening the obligation to prosecute. See Bassiouni, supra note 93, at 136. For further
discussion of jus cogens implications regarding conflicting national law, see infra Part II.B.
94 See Boed, supra note 84, at 315–16; Michael P. Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal Court, 32 Cornell Int’l L.J. 507, 519 (1999).
95 Scharf, supra note 94, at 519.
96 Boed, supra note 84, at 316; Iliopoulos, supra note 13 (noting Article 5 states that
“the widespread or systematic practice of enforced disappearance constitutes a crime
against humanity . . . and shall attract the consequences provided for under such applicable international law”). Spain has signed but not yet ratified this Convention, which requires twenty ratifications to enter into force. Iliopoulos, supra note 13.
97 See Boed, supra note 84, at 314–15; Scharf, supra note 94, at 520. Boed cites two specific U.N. General Assembly Resolutions to illustrate: a 1971 Resolution concerning the
punishment of war criminals and persons who have committed crimes against humanity,
and a 1973 Resolution on principles of international cooperation in the detection, arrest,
extradition, and punishment of persons guilty of war crimes and crimes against humanity.
Boed, supra note 84, at 315.
98 Eur. Parl. Ass., Resolution 828 on Enforced Disappearances, 9th Sess., Doc. No. 5273
(1984); Judge Garzón’s Statement, supra note 20, at 47.
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where a domestic amnesty law is at stake.99 Despite potential interpretations of ICCPR obligations, there is no specialized convention explicitly
compelling states to take a particular action in regards to crimes against
humanity, as opposed to crimes of genocide or torture.100 The argument for compelled prosecution must therefore lie in the uncertain
existence of customary law.101 This position is inherently weak, for, as
customary law requires a uniform state practice and state practice is not
uniform in this area, one would be hard-pressed to say a domestic amnesty violates a customary “duty” to prosecute.102
For example, several countries transitioning to democracy have
chosen to pass amnesty laws covering individuals who committed human rights abuses as part of former, repressive dictatorial regimes.103 In
some of these cases, the U.N. actually endorsed these amnesties as
measures designed to restore peace and solidify democratic governments.104 Moreover, as Scharf criticizes, binding customary law demands
deeds rather than words.105 Those claiming customary law bars amnesties cite “non-binding General Assembly Resolutions, hortative declarations of international conferences, and international conventions that
are not widely ratified” instead of any consistent state action to the contrary.106 The Rome Statute itself may even be interpreted to protect amnesties.107
Lastly, from a practical standpoint, calling Spain to simply abandon
the amnesty, as the U.N. Human Rights Committee has suggested, appears unrealistic.108 All three of Spain’s professional judicial groups,
which represent jurists on both the right and left, are in agreement that
legally prosecuting Franco and his allies would be a mistake.109 An investigation would be in direct conflict with an amnesty considered a
99 See Boed, supra note 84, at 314, 316.
100 Id. But see No Global Exception, supra note 54 (citing Spain’s obligations as a party
to the ICCPR).
101 See Boed, supra note 84, at 314, 316.
102 See id. at 314, 316–17.
103 See Milena Sterio, Rethinking Amnesty, 34 Denv. J. Int’l L. & Pol’y 373, 373 (2006).
104 Id.
105 Scharf, supra note 94, at 520.
106 Id.
107 Dwight G. Newman, The Rome Statute, Some Reservations Concerning Amnesties, and a
Distributive Problem, 20 Am. U. Int’l L. Rev. 293, 317–19 (2005). In particular, Newman
notes Article 53(1)(c) would allow deference to a national amnesty program, as the provision permits the Prosecutor to opt against investigation where “[a] prosecution is not in
the interests of justice” under the circumstances. Id. at 317.
108 See U.N. HRC, 94th Sess., supra note 57; Nolan, supra note 17.
109 Nolan, supra note 17.
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“pillar of democracy,” and which allowed Spaniards to leave a painful
past behind them in favor of a peaceful political transformation.110
B. Statute of Limitations
A second potential obstacle in the way of criminally investigating
Franco and his supporters lies in domestic application of a statute of
limitations.111 In November 2008, the Spanish Prosecutor’s Office challenged Judge Garzón to abide by the statute of limitations under the
Spanish criminal code in force at the outset of the Civil War, as it was
this code that would have been applicable to the alleged criminal acts
committed.112 The acts in question under the code at that time would
have been considered “ordinary crimes” with a now-expired statute of
limitations.113 Furthermore, the Prosecutor’s Office argued that even if
the judge looked to current Spanish law, most crimes are said to have
lapsed after a twenty-year period.114
Judge Garzón initially countered the applicability of the statute of
limitations argument under the progressive theory that as the bodies of
Franco-era victims are still missing, the crime of “enforced disappearance” continues to this day.115 Thus, the statute would not apply to a
still-open case.116 The principal argument against the application of the
statutory bar in the present context of an investigation into crimes
against humanity, however, is that such crimes are not subject to a statute of limitations under international law.117 There is now a general
consensus among international authorities that crimes against humanity are non-derogable jus cogens crimes under international law, the
highest standing international law affords, which would imply that
states should prosecute these crimes regardless of statutes of limitations.118 This implication finds support in both the Charter of the International Military Tribunal at Nuremberg (IMT) and explicitly in Ar-
57.
110 See id.; Fuchs, supra note 2.
111 See Iliopolous, supra note 13.
112 See id.
113 Id.
114 Id.
115 Id.
116 See id.
117 See Judge Garzón’s Statement, supra note 20, at 24; U.N. HRC, 94th Sess., supra note
118 Bassiouni, supra note 93, at 136; Leila Nadya Sadat, Exile, Amnesty and International
Law, 81 Notre Dame L. Rev. 955, 971, 974 (2006).
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ticle 29 of the Rome Statute.119 Although in the past it was still questionable as to whether customary law precluded statutory limitations as
applied to crimes against humanity, the widespread adoption of the
2002 Rome Statute indicates a customary norm against their applicability.120 In a trend corresponding to this principle, some states have begun adopting provisions abolishing statutes of limitations as applied to
certain jus cogens crimes.121 For these reasons, international law scholar
Leila Nadya Sadat concludes that even though the manner in which a
state chooses to apply international law is generally left to the individual state, the better rule when a jus cogens crime is at stake is that states
are bound via international law to apply international over national
rules, including statutes of limitations.122
C. The Nullum Crimen Sine Lege Principle
A third and major concern that must be confronted when dealing
with a concept of retroactive justice involving an international crime is
the fundamental principle of nullum crimen sine lege (“no crime without
a law”).123 In short, the principle demands that “no one [should] be
held criminally responsible and punished when at the time the crime
was committed, this did not constitute an offense under national or
international law.”124 This norm is codified in various human rights
sources and is designed both to prevent excessive judicial discretion
and to ensure an alleged offender will be fully conscious of the “severe
consequences which may flow from the criminal process.”125 The criti119 See Bassiouni, supra note 93, at 135–36 (citing article 6(c) of the Nuremberg Charter, which defines crimes against humanity to be international law offenses regardless of
whether or not in violation of municipal law in the country where perpetrated); Sadat,
supra note 118, at 1026 & n.339 (citing Article 29 of the Rome Statute, which states that
“crimes within the jurisdiction of the Court shall not be subject to any statute of limitations”).
120 Sadat, supra note 118, at 1026.
121 See id. The U.N. HRC called Spain to enact such legislative measures in its October
2008 recommendations. U.N. HRC, 94th Sess., supra note 57.
122 See Sadat, supra note 118, at 1026–27.
123 See Lynne Miriam Baum, Pursuing Justice in a Climate of Moral Outrage: An Evaluation
of the Rights of the Accused in the Rome Statute of the International Criminal Court, 19 Wis. Int’l
L.J. 197, 203 (2001); Patricia M. Wald, Sharpening the Cutting Edge of International Human
Rights Law: Unresolved Issues of War Crimes Tribunals, 30 B.C. Int’l & Comp. L. Rev. 15, 16
(2007); Iliopoulos, supra note 13.
124 Geert-Jan Alexander Knoops, Theory and Practice of International and
Internationalized Criminal Proceedings 83 (2005).
125 Id. (citing Article 7 of the European Convention on Human Rights and Article 15
of the ICCPR); Susan Lamb, Nullum Crimen Nulla Poena Sine Lege in International Criminal Law, in 1 The Rome Statute of the International Criminal Court: A Commen-
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cal question in attempting to prosecute those allegedly responsible for
acts committed during the Franco era presently classified as crimes
against humanity is whether international law during the Franco era
clearly established such acts were crimes against humanity.126 Judge
Garzón respects this concern, although he raises two potential arguments against the applicability of the nullum crimen principle.127
First, the same reasoning Judge Garzón applied to the statute of
limitations issue, that the crime of enforced disappearance is a crime
against humanity that continues to this day, would seem to challenge
the nullum crimen argument.128 This argument would fail as a result of
present-day understanding that crimes against humanity, such as enforced disappearance, are jus cogens crimes under international law, and
therefore currently prosecutable.129 The Rome Conference evaluated
this concept of “continuous crimes” as part of the non-retroactivity
principle of Article 24 that was considered in line with the nullum crimen standard codified in Article 22 of the Rome Statute.130 The Conference could not establish a consensus around this sensitive topic and
deliberately left Article 24’s language ambiguous for the ICC’s determination when confronted with alleged disappearances commenced
before the Statute entered into force and then continued thereafter.131
The status of nullum crimen as affected by “continued crimes” thus remains unresolved.132
The second argument raised is that if international law recognized
crimes against humanity at the time of the Nuremberg trials (1945),
international law recognized crimes against humanity stemming from
the beginning of the Spanish Civil War occurring a relatively short time
earlier.133 Judge Garzón’s initial plan was to investigate within the period of 1936 to 1952, a scope that could be expected to encompass the
majority of Franco-era atrocities, which were likely committed from
tary 733, 734–35 (Antonio Cassese et al. eds., 2002) (citing Article 22 of the Rome Statute).
126 See Iliopolous, supra note 13.
127 See id.; Judge Garzón’s Statement, supra note 20, at 11–12, 45.
128 See Iliopoulos, supra note 13.
129 See Sadat, supra note 118, at 974.
130 Per Saland, International Criminal Law Principles, in The International Criminal
Court: The Making of the Rome Statute—Issues, Negotiations, and Results 189,
196 (Roy S. Lee ed., 1999).
131 Id. at 196–97.
132 See id. at 197.
133 Iliopoulos, supra note 13.
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1936 to 1945.134 Judge Garzón asserted the Nuremberg proceedings
were intended to cover a period beginning on January, 30, 1933—
sufficiently earlier than the 1936 Spanish Civil War such that Franco
and the named officers could legitimately be accused of crimes against
humanity.135
In reality, it is problematic to suggest crimes against humanity were
established criminal acts under international law at a time pre-dating
Nuremberg.136 Prior to Nuremberg, international crimes were vaguely
understood, and the Tribunals had the task of defining their elements
for the first time.137 For this reason, the Nuremberg trials themselves
have been criticized for applying international law ex post facto to acts
not explicitly declared illegal at the time of commission.138 The Nuremberg trials are instead best viewed as the initial point of confirmation
that crimes against humanity would be punishable under international
law.139
The argument against applying the nullum crimen sine lege principle
to a criminal investigation of Franco-era atrocities may therefore depend on the unclear status of enforced disappearance as a “continuous
crime.”140 In such a situation, the Rome Statute’s Article 22 instructs
that when ambiguous, the definition of a crime “shall be interpreted in
favour of the person being investigated, prosecuted, or convicted.”141
D. Due Process Concerns
A final hurdle to be encountered in any form of criminal prosecution of Franco and his allies is preserving the rights of the accused.142
134 See Tremlett, supra note 11; see also Herr, supra note 22, at 190; Richards, supra
note 26, at 30.
135 Judge Garzón’s Statement, supra note 20, at 10–11 (finding support in Count I of
the Nuremburg Trial Proceedings and Control Council Law No. 10, which cover acts beginning in 1933).
136 See Lamb, supra note 125, at 735. It has been argued that it cannot necessarily be
deemed “unfair” to prosecute individuals for crimes against humanity when their acts occurred prior to Nuremberg, given that such acts, like mass murder, were established crimes
in every legal system. International Law: Cases and Materials 1326 (Lori F. Damrosch
et al. eds., 4th ed. 2001). Nevertheless, this argument neglects to honor the nullum crimen
principle that the type of criminal liability at stake, in this case of the international variety,
should have been foreseeable at the time of commission. See Knoops, supra 124, at 83–85.
137 Lamb, supra note 125, at 735.
138 Id.
139 See id.; Roht-Arriaza, supra note 90, at 462.
140 See Lamb, supra note 125, at 735; Saland, supra note 130, at 197.
141 Lamb, supra note 125, at 749 (quoting Article 22 of the Rome Statute).
142 See Cristian Defrancia, Note, Due Process in International Criminal Courts: Why Procedure Matters, 87 Va. L. Rev. 1381, 1382–83, 1393 (2001).
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The reality of pursuing retroactive justice for acts committed seventy
years ago is that the alleged perpetrators are now deceased, as are the
majority of survivors or other first-hand witnesses of the acts.143 Therefore, any live testimony would likely be dependent on the children of
the era who observed or otherwise had knowledge of the atrocities, individuals who have been provided accounts from past generations, and
whatever documentation could be obtained from the period.144 Although international criminal law does not bar the admission of hearsay or indirect evidence,145 it does maintain the ideal that even individuals accused of the most serious crimes a human being could
perpetrate are entitled to a set of basic due process rights.146
The IMT afforded only limited due process rights to the accused,
likely due to the extreme horrors before the court and the inherent
difficulty of balancing these rights with society’s collective need for justice.147 Nevertheless, the IMT Charter and Rules of Procedure did provide an early set of due process guarantees now considered fundamental to international criminal procedure, including the rights to conduct
a defense, present evidence, and cross-examine witnesses.148 Since Nuremberg, the right of the accused to a fair trial has become a wellestablished principle in international, as well as domestic, legal frameworks.149 Article 14 of the ICCPR has been viewed as the modern instrument of human rights law reflective of the internationally recognized standards for the rights encompassed in the fair trial concept.150
The Article, echoing its IMT predecessor, solidified the rights of ac143 Burnett, supra note 12; see Webster, supra note 1, at 10–11.
144 See Webster, supra note 1, at 10–11; Nolan, supra note 17 (noting Judge Garzón
had solicited information pertaining to victims’ names and circumstances of death from
government archives, city halls, the Catholic Church, and the keepers of Franco’s tomb
before his original decision to conduct an investigation).
145 Knoops, supra note 124, at 190–91 (citing case law from ad hoc criminal tribunals);
William A. Schabas, An Introduction to the International Criminal Court 294
(3d ed. 2007) (citing the ICC standard that admissibility depends on the relevance and
necessity of the evidence).
146 Aaron Fichtelberg, Liberal Values in International Criminal Law, 6 J. Int’l Crim. Just.
3, 11 (2008); see Gregory S. Gordon, Toward an International Criminal Procedure: Due Process
Aspirations and Limitations, 45 Colum. J. Transnat’l L. 635, 654–56.
147 See Baum, supra note 123, at 197; Gordon, supra note 146, at 642.
148 Gordon, supra note 146, at 641–42.
149 See Schabas, supra note 145, at 206–07 (demonstrating the fair trial right is explicitly protected in the Rome Statute, Universal Declaration of Human Rights, and in various
regional human rights conventions); Defrancia, supra note 142, at 1393.
150 Defrancia, supra note 142, at 1393; see also Håkan Friman, Rights of Persons Suspected
or Accused of a Crime, in The International Criminal Court, supra note 130, at 247, 248
(noting the ICCPR standard served as a “yardstick” for the Rome Statute’s standard).
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cused individuals to be tried in person, defend themselves, and examine the witnesses testifying against them, among others.151
Due to the previously mentioned realities of adjudicating alleged
crimes against humanity seventy years after their occurrence, the accused would obviously be unable to defend themselves personally at
trial152 or to confront any testimony or evidence against them.153 The
general rule is that international criminal proceedings do not in principle accept trials in absentia, which would clearly be required in the
case at hand.154 It is true that the HRC, as well as the Rome Statute and
ICCPR observe certain, but very limited, exceptions to this rule.155
Even in cases of these exceptions, however, the accused are always informed of the proceedings against them and provided at least an initial
right to attend their trials.156
One would thus seem hard-pressed to say any traditional trial method could apply to the cases of Franco and his allies to yield fair proceedings in accordance with the international standard.157 This is particularly the case given the likely quantity of indirect accounts, as well as
the age of the evidence.158 In such a situation, underlying reliability and
credibility would certainly be at issue, placing even more emphasis on
an accused individual’s ability to personally examine and challenge the
evidence for the sake of establishing legitimacy.159
151 See ICCPR, supra note 88, art. 14, § 3; Gordon, supra note 146, at 641–42.
152 This right is also explicit in Spain’s Criminal Procedure Act. Ley de Enjuiciamiento
Criminal [L.E. Crim.] art. 118 (Spain).
153 See Webster, supra note 1, at 10–11; Burnett, supra note 12.
154 See Knoops, supra note 124, at 89. Friman notes trial in absentia was one of the most
controversial issues in Rome Statute negotiations. Friman, supra note 150, at 255. All
agreed to the general principle that the accused should be present, but the issue of exceptions was divisive and ultimately dropped, thereby precluding ICC trials in absentia. Id. at
255, 261.
155 See Baum, supra note 123, at 206–09 (noting that the HRC and ICCPR commentators have held that trials could occur in absentia only when the accused was summoned in a
timely manner and given notice of the proceedings, while Article 63 of the Rome Statute
allows removal of a disruptive accused from proceedings for “such duration as strictly required”).
156 See id.
157 See Knoops, supra note 124, at 89.
158 See Webster, supra note 1, at 11; Burnett, supra note 12; Nolan, supra note 17.
159 See Knoops, supra note 124, at 89; Defrancia, supra note 142, at 1424–25.
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III. Analysis
A. Respecting Jurisdictional Concerns and Victims’ Rights
Of the four jurisdictional obstacles discussed in this Note, all but
one would bar trial or another form of individual criminal prosecution
of Franco and the thirty-four generals and ministers named in Judge
Garzón’s October 2008 statement.160 A statute of limitations alone
would not block criminal action, given its inapplicability to jus cogens
crimes according to customary international law.161 Nevertheless, the
remaining three hurdles—the 1977 Amnesty Law, the nullum crimen
principle, and due process concerns—cannot be overcome.162 The
1977 amnesty would remain intact due to practical domestic realities
and the unclear status of international law relating to a duty to prosecute when confronted with amnesty law.163 Spain must also recognize
the nullum crimen norm, as crimes against humanity were not established criminal acts when allegedly committed.164 Finally, the legitimacy
and fairness of criminal proceedings demand the accused have the opportunity to attend, mount a defense, and challenge evidence presented against them.165 This is an impossibility in the present case involving alleged crimes committed seventy years ago.166
Although these three jurisdictional obstacles would preclude a
criminal prosecution of individual Francoists for crimes against humanity, this does not mean Spain should abandon all forms of investigation.167 Internationally, Spain has subscribed to the recognition of victims’ rights as a party to two critical treaties: the ICCPR and Rome
Statute.168 In addition, as a member of the international community,
Spain is obliged to respect the fact that Franco-era victims suffered
from what are now recognized as crimes so grave as to warrant jus cogens
160 See Knoops, supra note 124, at 89; Boed, supra note 84, at 314, 317; Lamb, supra
note 125, at 735; Sadat, supra note 118, at 974, 1026.
161 See Sadat, supra note 118, at 974, 1026–27.
162 See Knoops, supra note 124, at 89; Boed, supra note 84, at 314, 317; Lamb, supra
note 125, at 735.
163 See Boed, supra note 84, at 314, 317; Nolan, supra note 17.
164 See Lamb, supra note 125, at 735.
165 See Knoops, supra note 124, at 89; Gordon, supra note 146, at 655–56.
166 See Knoops, supra note 124, at 89; Burnett, supra note 12.
167 See ICCPR, supra note 88; Rome Statute, supra note 21; Main Points of Spain’s Historical Memory Law, supra note 45.
168 See ICCPR, supra note 88, art. 7 (stating that “[n]o one shall be subjected to torture
or to cruel, inhuman, or degrading treatment or punishment”); Rome Statute, supra note
21, art. 7 (defining murder, torture, and enforced disappearance as crimes against humanity); La obligación de investigar, supra note 87, at 16 n.34, 25.
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status—the highest standing in the hierarchy of international legal
norms.169 Barring the jurisdictional obstacles in large part stemming
from the fact that the acts were committed several decades ago, criminal investigations should not be dismissed.170
On the domestic front, the Spanish government has also recently
committed itself to broadening the rights of Franco-era victims in some
measure via 2007’s Historical Memory Law.171 The legislation included
a mandate for town halls to facilitate the exhumation of unmarked
mass graves and widen symbolic monetary compensations for victims or
their survivors, although this has generally not come to fruition.172
A truth commission would be an invaluable forum through which
Spain could acknowledge its legal obligations internationally and domestically, formally recognize the suffering of victims, and grant some
degree of closure to victims’ families.173 At the same time, as past experience indicates, the forum could be carefully structured to suit the
needs of the host country.174 In Spain’s case, the commission should
accommodate the rights of the accused in respecting the 1977 Amnesty
Law and the principles of nullum crimen sine lege and due process.175
B. Structuring a Truth Commission
The Spanish government should narrowly construct the mandate
for a truth commission toward the victim-centered objective of investigating the circumstances surrounding a disappeared victim’s death,
thus resembling the Chilean National Commission on Truth and Reconciliation model.176 The Spanish commission’s ultimate goal should
similarly be a report containing victims’ names, dates and causes of
death, and probable burial location (if known).177 Additionally, this report would list mass grave site locations in need of exhumation and a
plan for state funding of this initiative and other symbolic monetary
169 See Bassiouni, supra note 93, at 135–36; Sadat, supra note 118, at 971, 974.
170 See Sadat, supra note 118, at 1026–27; Tremlett, supra note 11.
171 See Main Points of Spain’s Historical Memory Law, supra note 45.
172 Burnett, supra note 12; Main Points of Spain’s Historical Memory Law, supra note 45.
173 See Hayner, supra note 77, at 28–29, 105.
174 See Connolly, supra note 57, at 404–05.
175 See Knoops, supra note 124, at 89; Boed, supra note 84, at 314, 317; Lamb, supra
note 125, at 735; Connolly, supra note 57, at 404–05.
176 See Phelps, supra note 69, at 91–92; Martin Roberts, Spain Prosecutors Set to Block Civil
War Probe, Reuters, Oct. 20, 2008, http://www.reuters.com/article/latestCrisis/idUSLK
314896.
177 See Phelps, supra note 69, at 91–92; Nolan, supra note 17.
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compensation for victims or their survivors.178 In this way, the mandate
would largely agree with the 2007 Historical Memory Law and Judge
Garzón’s objectives in his original decision to criminally investigate
Franco-era atrocities.179
Nevertheless, given the need to respect the obstacles of the 1977
Amnesty Law and principles of nullum crimen and due process in any
investigation, the Spanish truth commission should differ from Judge
Garzón’s initial plan in a significant way.180 Although Judge Garzón’s
October 2008 statement named Franco and thirty-four other individuals as the subjects of a planned criminal investigation, a Spanish truth
commission must forego naming individual actors in final reports, as
well as any further judicial prosecutions against alleged offenders, similar to the Guatemalan CEH example.181 Any future criminal investigation of individuals based on commission findings would breach the
1977 Amnesty Law and violate the principle of nullum crimen sine lege.182
Moreover, as naming individual offenders in a report would trigger the
due process right of the accused to defend themselves, this option must
be dismissed.183 The uniqueness of the Spanish case should be respected in the fact that the acts in question may be up to seventy years
old and concern now-deceased actors, as opposed to other commissions that have dealt with events from a more recent past, which were
capable of accommodating the rights of the accused if naming them.184
Lastly, the mandate’s provisions in regards to the commission’s
evidentiary powers and composition would provide additional reinforcement of the body’s victim-centered mission and protection of the
rights of the accused.185 The commission should be vested with broad
subpoena and search and seizure powers to collect testimony and build
on the documentation Judge Garzón had already solicited from government archives, city halls, the Catholic Church, and the keepers of
178 See Phelps, supra note 69, at 91–92; Nolan, supra note 17; Main Points of Spain’s Historical Memory Law, supra note 45.
179 See Roberts, supra note 176; Main Points of Spain’s Historical Memory Law, supra note
45.
180 See Knoops, supra note 124, at 89; Boed, supra note 84, at 314, 317; Lamb, supra
note 125, at 735; Burnett, supra note 12.
181 See Boed, supra note 84, at 314, 317; Keller, supra note 72, at 290, 298, 300; Lamb,
supra note 125, at 735; Burnett, supra note 12.
182 See Boed, supra note 84, at 314, 317; Lamb, supra note 125, at 735.
183 See Greenawalt, supra note 78, at 203.
184 See Phelps, supra note 69, at 99, 102 (noting the Salvadoran Commission on the
Truth interviewed victims as well as alleged perpetrators before naming offenders in a final
report); Burnett, supra note 12.
185 See Freeman, supra note 61, at 29, 302; Nolan, supra note 17.
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Franco’s tomb.186 The body would thus possess full fact-finding powers
even if it were to encounter political opposition to its efforts.187 The
commission should likewise provide wide accessibility for statementtaking, using the Argentine National Commission on the Disappeared
model as an example.188 Reaching out to potential witnesses across the
country is particularly necessary in the Spanish case, given the probable
advanced age of any with direct knowledge of the acts in question and
the fact that mass graves are located throughout the countryside.189
In terms of composition, the current Socialist government of
Prime Minister José Luis Rodríguez Zapatero would be wise to engage
leaders from both ends of the political spectrum in consultation towards the selection of commissioners in order to facilitate a fair balance
of opinion, and thus bolster the legitimacy of the body’s findings.190 To
further enhance the commission’s capacity for independent, credible
fact-finding, appointees should include a combination of foreign and
national legal experts.191 The presence of international experts would
promote objective inquiry against what has been a fierce partisan debate surrounding the investigation of alleged crimes against humanity.192 The participation of national legal experts, who would ideally be
nominated by both the left and right, would ensure the body’s respect
of Spanish legal culture and a vested interest in the country’s welfare.193
Furthermore, the inclusion of nominees from the right would likely
serve as a further check on evidentiary reliability and assurance that the
rights of the accused are observed in the investigation process.194
Although the aforementioned proposal for a Spanish truth commission would not result in a sense of retributive justice for surviving
victims and victims’ relatives, the plan would likely afford significant
benefits in the way of restorative justice.195 The model would affirm the
dignity of the victims of Franco-era atrocities via collected stories that
would shed light on their suffering and allow their lives to be properly
186 See Keller, supra note 72, at 302; Stahn, supra note 59, at 955; Nolan, supra note 17.
187 See Keller, supra note 72, at 302; Nolan, supra note 17.
188 See Freeman, supra note 61, at 302; Phelps, supra note 69, at 83–84.
189 See Richards, supra note 26, at 38; Webster, supra note 1, at 10–11.
190 See Freeman, supra note 61, at 29–30.
191 See id.; Naomi Roht-Arriaza, Making the State Do Justice: Transnational Prosecutions and
International Support for Criminal Investigations in Post-Armed Conflict Guatemala, 9 Chi. J.
Int’l L. 79, 88 (2008).
192 See Roht-Arriaza, supra note 191, at 88; Burnett, supra note 12.
193 See Freeman, supra note 61, at 29; Roht-Arriaza, supra note 191, at 88.
194 See Freeman, supra note 61, at 29; Nolan, supra note 17.
195 See Kiss, supra note 76, at 74–75, 79.
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memorialized.196 The commission’s final report would also represent a
historical document that officially acknowledges that abuses were
committed, particularly through recommendations of symbolic reparations to families and state support of mass grave exhumation, even if
individual offenders’ names are omitted.197 Finally, the plan would
demonstrate a commitment to human rights to both the national and
international communities, while also allowing a now-mature Spanish
democracy to take a meaningful step toward breaking the silence surrounding its painful history and healing past divisions.198
Conclusion
Despite the fact that individual criminal prosecution of Franco and
the thirty-four generals and ministers named in Judge Baltasar Garzón’s
October 2008 statement may face insurmountable legal obstacles, Spain
can still achieve a form of retroactive justice for Franco-era crimes
against humanity via a truth commission. The three hurdles consisting
of Spain’s 1977 Amnesty Law, the principle of nullum crimen sine lege, and
the necessity of protecting the due process rights of the accused, must
all be respected to the point of foregoing retributive justice. Nevertheless, an alternative forum toward achieving restorative justice for victims
and victims’ families exists in the form of a truth commission. This forum could be molded both to accommodate the obstacles unique to the
Spanish situation and to permit the nation to honor international and
domestic legal responsibilities. The Spanish truth commission’s mandate would provide for widespread statement-taking and document collection that would support a final report describing the circumstances
surrounding victims’ deaths, identifying victims’ ultimate resting places,
and providing symbolic reparation recommendations. The mandate
would additionally preclude naming alleged offenders in the report and
any future prosecution of these individuals to preserve the rights of the
accused. In this way, the Spanish truth commission would represent a
fair, victim-centered forum capable of promoting the restorative aims of
affirming victim dignity, formally acknowledging historical atrocities,
and allowing the nation to begin closing its old wounds in earnest.
196 See id. at 79; Roberts, supra note 176.
197 See Kiss, supra note 76, at 79; Main Points of Spain’s Historical Memory Law, supra note
45. This official record would thus contribute to the previously discussed “historical justice” benefit to which Freeman alludes. See Freeman, supra note 61, at 11 n.28.
198 See Hayner, supra note 77, at 105; Kiss, supra note 76, at 79; Roberts, supra note 176;
Burnett, supra note 12; Nolan, supra note 171.
INSERTED BLANK PAGE
SANS-PAPIERS, SANS RECOURSE?
CHALLENGING RECENT IMMIGRATION
LAWS IN FRANCE
Emily B. Kanstroom*
Abstract: The 1789 Declaration of the Rights of Man and of the Citizen
established natural and inalienable rights not only for French citizens but
also for all of humanity. This historic commitment to fundamental rights
and liberties notwithstanding, immigrants without legal documents living
in France (sans-papiers) often do not benefit from some of these most basic guarantees. In 2007, a Commission charged with modernizing and reforming the institutions of the Fifth Republic proposed amending the
Constitution to allow individuals to argue that the law, as applied in their
case, does not conform to the rights and liberties recognized by the Constitution. By December 2009, a constitutional revision law and an institutional act had combined to grant the Constitutional Council a striking
new power: the ability to review laws after promulgation and to assess
their conformity with the Constitution. This recent evolution may provide
the basis for constitutional challenges to the restrictive legislation sanspapiers now endure.
Introduction
The Declaration of the Rights of Man and of the Citizen, adopted
in 1789 during the French Revolution, establishes natural and inalienable rights for French citizens specifically and for all of humanity more
generally.1 Authored with the intention of protecting individuals from
government, this revolutionary document, according to some, served
as “the principle vehicle of the ideas of liberty and equality around the
globe.”2 In 1958, the most recent French Constitution reaffirmed and
* Emily B. Kanstroom is the Managing Editor of the Boston College International & Comparative Law Review. The author would like to thank Professors Daniel Kanstroom and Vlad
Perju for their assistance, as well as the friends and family on both sides of the ocean who
made this endeavor possible.
1 Déclaration des Droits de l’Homme et du Citoyen [Declaration of the Rights
of Man and of the Citizen] (1789); Alec G. Hargreaves, Immigration, ‘Race’ and
Ethnicity in Contemporary France 160 (1995) [hereinafter Hargreaves, Immigration,
‘Race’ and Ethnicity].
2 Dale Van Kley, Introduction to The French Idea of Freedom: The Old Regime and
the Declaratrion of Rights of 1789, at 5, 6–7 (Dale Van Kley ed., 1994) (quoting
87
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incorporated the Declaration of the Rights of Man and of the Citizen.3
Despite France’s explicit commitment to fundamental rights for all
human beings in French society, immigrants without legal documents
often find that some basic rights remain, in practice, reserved solely for
citizens.4 Where access to citizenship is necessarily predicated on overcoming increasingly restrictive requirements, including sufficient cultural assimilation, the result may be a country in which “rumors multiply, hate foments, and militias arm themselves.”5
In November 2005, riots ravaged Paris and its northern banlieues,
or suburbs, which were already filled with racial animosity and policeincited violence.6 A few days prior to the start of the most serious violence, then-Interior Minister Nicolas Sarkozy explicitly referred to the
population in these crime-ridden areas, primarily Arab and Black Muslim French people, as “rabble” and suggested that they be “cleaned
with a power hose.”7 Two days after his remarks, two young boys, Zyed
Benna and Bouna Traore, the sons of African immigrants, were electrocuted as they climbed into an electrical sub-station to hide from the
police.8 Muhittin Altun, one boy who survived the electrocution with
burns covering approximately thirty percent of his body, explained that
as the boys were returning home from a soccer game, the police had
French historian Jacques Godechot); see Hargreaves, Immigration, ‘Race’ and Ethnicity, supra note 1, at 160.
3 See 1958 Const. pmbl.
4 Alec G. Hargreaves, Multi-Ethnic France 160–61 (2d ed. 2007) [hereinafter
Hargreaves, Multi-Ethnic France]; see Tahar Ben Jelloun, French Hospitality:
Racism and North African Immigrants 38–39 (Barbara Bray trans., Columbia Univ.
Press 1999) (1984).
5 Code civil [C. civ.] arts. 21-4, 21-24, 21-25 (Fr.). Article 21-24 reads: “None can be
naturalized if he cannot demonstrate his assimilation to the French community, notably by
sufficient knowledge, depending on his situation, of the French language,” while Article
21-4, with respect to naturalization based on marriage, expressly allows the government to
“oppose . . . acquisition of French nationality by a foreign spouse for indignity or insufficient assimilation. . . .” Id. arts. 21-4, 21-24 (author’s translation); Jean-Paul Gourévitch,
Immigration: la fracture légale [Immigration: The Legal Fracture] 281 (1998)
(author’s translation).
6 Eddie Bruce Jones, Race, Space, and the Nation-State: Racial Recognition and the Prospects
for Substantive Equality Under Anti-Discrimination Law in France and Germany, 39 Colum.
Hum. Rts. L. Rev. 423, 446 (2008).
7 Id. at 447; see also Timeline: French Riots, BBC News, Nov. 14, 2005, http://news.
bbc.co.uk/2/hi/world/europe/4413964.stm [hereinafter Timeline: French Riots] (detailing
these events).
8 See Jones, supra note 6, at 447.
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arrived with sirens wailing and had chased them with police dogs.9 He
said further that the friends were not hiding because of any crime they
had committed but rather to avoid the extended questioning by the
police that youths in the banlieues often faced.10 In addition to demanding identity papers, the police held these youths at the police station for
hours.11 During the riots that followed, thousands of cars were burned
and hundreds of people were arrested as violence spread into Paris, its
other suburbs, and even to other cities, resulting in one death.12
In the aftermath of the violence, Sarkozy (now the President of
France) promised to tighten immigration controls.13 He began discussing new immigration policies, immediately taking a tough stance on the
riots that had plagued areas populated primarily by North African Muslims, also known as “maghrèbins.”14 In a statement to the French Parliament, he explained that France has no desire to welcome “those people
that nobody else in the world wants . . . [w]e want selective immigration.”15
Many of those living in the banlieues are part of a much larger and
growing group of sans-papiers, or those without the documents necessary to grant them legal status in France.16 They faced expulsion in the
9 Jennifer Kolstee, Time for Tough Love: How France’s Lenient Illegal Immigration Policies
Have Caused Economic Problems Abroad and Social Turmoil Within, 25 Penn St. Int’l L. Rev.
317, 333 (2006).
10 Id. at 333.
11 Thomas Crampton, Behind the Furor: The Last Moments of 2 Youths, N.Y. Times, Nov. 7,
2005, at A10. “‘The resentment is huge here, and we were not surprised to see an incident
like this spark it off,’ said Mokded Hannachi, a government official involved in youth affairs who has been acting as a mediator between the police and the youths.” Id. Hannachi
continued, “‘You cannot constantly stop people for no reason to check their papers and
not have consequences.’” Id.
12 Timeline: French Riots, supra note 7.
13 Molly Moore, France Weighs Immigration Controls After Riots, Wash. Post, Nov. 30,
2005, at A14; David R. Sands, Tough Stance on Immigration Boosts Sarkozy, Riots Hurt Chirac’s
Popularity, Wash. Times, Nov. 17, 2005, at A15.
14 Moore, supra note 13; Sands, supra note 13. The term “maghrèbin” is derived from an
Arabic word denoting the North African region. Although the “great majority” of
maghrèbin immigrants are Muslims, some are not, and many speak a Berber language instead of Arabic. Richard Alba & Roxane Silberman, Decolonization Immigrants and the Social
Origins of the Second Generation: The Case of North Africans in France, 36 Int’l Migration Rev.
1169, 1171 (2002).
15 Moore, supra note 13.
16 Groupe d’information et de soutien des immigrés [Immigration Info. & Support Group], Les notes pratiques: sans papiers mais pas sans droits [Practical
Notes: Without Papers but Not Without Rights] 1, 3–4 (2006), available at http://www.
gisti.org/doc/publications/2006/sans-papiers/index.html [hereinafter GISTI]. The term
“sans-papiers” (“without papers”) includes both immigrants who entered and remain illegally
and those who may have entered legally but now remain in France illegally. See id. at 3.
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immediate aftermath of Sarkozy’s crackdown and remain in highly precarious circumstances.17 Sans-papiers lack basic rights to housing, employment, and welfare benefits, though many are not actually facing
deportation, which may leave them suspended for years in a long and
confusing state of limbo.18 Since the 2005 riots, however, with the passage of tough new immigration legislation championed by President
Sarkozy, many immigrants, including a large percentage of children,
now do face deportation.19
Part I of this Note discusses the historic difficulties sans-papiers have
experienced integrating into French society and focuses specifically on
the difficulties of maghrèbin immigrants. Barriers to integration and the
accompanying cultural and social milieu in France are critical to understanding the recent trend toward restrictive immigration practices.
Part II details the evolution of these laws, concentrating on those proposed primarily by Sarkozy in 2003 and 2006 and their impact on this
particular group of immigrants. Part III analyzes these legislative and
cultural trends and offers potential means of combating the progression of restrictive legislation by use of a new, legal, and institutional
tool: the right of individuals to challenge the constitutionality of laws
affecting their fundamental rights.
I. Background
A. France and Its Immigrants: A Riotous Clash?
The complexities of integration or assimilation of other cultures
are prominent in French society, which is now home to four to five million Muslims, “the largest Muslim population on the continent.”20 For
some, the 2005 riots represent a broader clash of civilizations, symptomatic of France’s struggle to fully integrate Muslims into all sectors of
national life, the country’s historic egalitarianism notwithstanding.21
Despite the fact that France has sustained large-scale immigration for a
17 Alasdair Sandford, Sarkozy Alters Tack on Immigration, BBC News, Jan. 12, 2006, http://
news.bbc.co.uk/2/hi/europe/4608108.stm.
18 Id. As of 2006, for the 200,000–400,000 clandestine immigrants estimated in France,
20,000 obtained legal papers every year. Catherine Coroller, Le Projet de loi sur l’immigration
en débat à l’Assemblée [The Immigration Bill Debated in the Assembly], Libération (Paris), May
4, 2006, at 13.
19 John Lichfield, Sarkozy in ‘Public Lie’ over Immigrant Residence Permits, Indep. (London), Sept. 20, 2006, at 24; see Caroline Wyatt, French Fight for Illegal Children, BBC News,
June 22, 2006, http://news.bbc.co.uk/2/hi/europe/5104732.stm.
20 Stéphanie Giry, France and Its Muslims, 85 Foreign Aff. 87, 87 (2006).
21 Id.
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century and a half, French society remains far more homogenous than
the United States, and its people are more likely to view ethnic or religious characteristics as divisive elements.22 “A growing unease about a
loss of national identity” has combined with a diminished desire to welcome an immigrant population perceived as unprepared “to submit to
the rigours of full assimilation into the rights and duties of the Republic.”23 Indeed, some argue that maghrèbin immigrants inspire a particular hostility, beyond even a generalized xenophobia.24
B. The Sans-Papiers and Demands for Fundamental Rights
The French government has progressively withdrawn fundamental
rights of sans-papiers, immigrants without documents authorizing them
to live and work in France.25 Immigrants lacking legal status create an
“irregular” legal and administrative situation, though defining exactly
what “irregular” means and how an immigrant in France arrives at such
a classification is complex.26 The term “irregular” applies both to those
who entered France legally but now must take further steps to regularize their status as well as to those who entered France illegally and may
therefore be removed from the country.27 Drawing the line between
these two groups is challenging, largely because of the evolution of legislation and how administrative practices have contributed to the creation of “irregular” immigrants.28
Sans-papiers lack many of the rights and privileges granted to citizens, such as complete health care as part of French social security and
welfare benefits for the care of children.29 A sans-papiers social and po22 Id. at 89.
23 Jeremy Jennings, Citizenship, Republicanism and Multiculturalism in Contemporary
France, 30 Brit. J. Pol. Sci. 575, 581 (2000); see also Christine Vanson, In Search of the Mot
Juste: The Toubon Law and the European Union, 22 B.C. Int’l & Comp. L. Rev. 175, 176
(1999) (arguing that the French concern for national identity extends even to the perceived need to protect the French language itself from modification).
24 Monica Nigh Smith, “France for the French?” The Europeans? The Caucasians?: The Latest
French Immigration Reform and the Attempts at Justifying Its Disproportionate Impact on Non-White
Immigrants, 14 Transnat’l L. & Contemp. Probs. 1107, 1128–29 (2005); see Ben Jelloun,
supra note 4, at 47–51 (providing a chronology of violent acts between 1982 and 1983 directed at maghrèbin immigrants).
25 Ben Jelloun, supra note 4, at 18.
26 Nathalie Ferré, La production de l’irrégularité [Producing Irregularity], in Les lois de
l’inhospitalité [The Laws of Inhospitality] 47, 47 (Didier Fassin et al. eds., 1997).
27 Id. at 48.
28 Id.
29 See generally GISTI, supra note 16. The GISTI Report is designed to educate sanspapiers about rights they may be able to claim in these areas depending on their particular
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litical movement seeking regularized status for all immigrants lacking
proper documents achieved notice in 1996 when 324 Africans occupied
a church, demanding rights.30 By February of the following year, the
sans-papiers had issued a manifesto, demanding legal papers “so that we
are no longer victims of arbitrary treatment by the authorities, employers and landlords.”31 The manifesto continues:
We demand papers so that we are no longer vulnerable to informants and blackmailers. We demand papers so that we no
longer suffer the humiliation of controls based on our skin,
detentions, deportations, the break-up of our families, the
constant fear.32
The sans-papiers’ predicament demonstrates the difficulties many immigrants faced even before the most recent laws due to “incessant discrimination and, more than anything, a rise in xenophobia and racism.”33 Moreover, the mere existence and subsequent treatment of
sans-papiers created a “right-less zone” at the heart of French society,
which some have argued is incompatible with the maintenance of a society founded on the protection of the basic rights and dignities of
people.34 Tens of thousands of men, women, and children are largely
left at the whim of legislative evolution and its application by police and
the legal machinery of the government.35
C. The 1958 Constitution and Judicial Review?
If recent immigration laws affecting sans-papiers are indeed, as
some have argued, contrary to the tenets of the basic human rights and
liberties upon which the French state is predicated, the recourse avail-
situation and legal status, which indicates that, despite the difficulties of navigating the
system, there may in fact be more rights available than many people realize. Id. at 1.
30 Teresa Hayter, Open Borders: The Case Against Immigration Controls 142
(2000).
31 Id. at 143.
32 Id.
33 Didier Fassin et al., Présentation [Introduction] to Les lois de l’inhospitalité, supra note 26, at 5, 5 (author’s translation).
34 Emmanuel Terray, La lutte des sans-papiers, la démocratie et l’Etat de droit [The SansPapiers’ Struggle, Democracy and the Legal State], in Les lois de l’inhospitalité, supra note
26, at 249, 249.
35 Id.
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able to these immigrants under French law has undergone a recent and
critical development.36
The 1958 French Constitution provides for the establishment of a
“Constitutional Council” empowered to determine whether laws
adopted by Parliament are in conformity with the Constitution.37 The
Council was not intended as a mechanism to protect individual constitutional liberties against “legislative limitation.”38 Instead, the predominant understanding is that the framers intended the Council “to
facilitate the centralization of executive authority,”39 ensuring that “Parliament respects the limits imposed on its legislative competence vis-àvis the Government.”40 Accordingly, under Article 61, the Council was
able to decide whether a bill that had been “definitively adopted by Parliament, but not yet promulgated by the executive” was in conformity with the
Constitution.41 Only the President, the Prime Minister, the President of
the Senate, or sixty deputies or sixty senators could submit laws to the
Council for a decision, however.42
Once a law was promulgated, it was subject only to the jurisdictional control of the Parliament itself.43 For over a decade, the Council
fulfilled this limited mission and did not use the power of Article 61 to
protect individual liberties.44 Indeed, any notion of invalidating a law
because it infringed on constitutional liberties was wholly “alien to
French constitutional tradition”45 according to which judges are “no
36 See Hayter, supra note 30, at 149; Smith, supra note 24, at 1133–34; Terray, supra
note 34, at 249.
37 1958 Const. arts. 58–63; James E. Beardsley, The Constitutional Council and Constitutional Liberties in France, 20 Am. J. Comp. L. 431, 431 (1972).
38 Beardsley, supra note 37, at 431.
39 Alec Stone, The Birth of Judicial Politics in France 47 (1992).
40 Beardsley, supra note 37, at 437.
41 Stone, supra note 39, at 8 (“The control is thus a priori and abstract rather than a
posteriori and concrete as in the American model.”); see also 1958 Const. art. 61, translated
in Ambassade de France [French Embassy], Service de Presse et d’Information
[Press & Info. Div.], The French Constitution art. 61 (1958) (“Organic laws, before
their promulgation . . . must be submitted to the Constitutional Council, which shall rule
on their constitutionality.”).
42 1958 Const. art. 61, amended by Law No. 74-904 of Oct. 29, 1974, Journal Officiel de
la République Française [J.O.] [Official Gazette Of France], Oct. 30, 1974, p. 11035 (extending this power to the sixty deputies or sixty senators).
43 Stone, supra note 39, at 8.
44 Beardsley, supra note 37, at 436.
45 Id. at 431.
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more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigor.”46
Then, in a landmark 1971 decision, the Constitutional Council
struck down a law it found not to be in conformity with the Constitution because the law contravened the “fundamental principle[]” of liberty of association.47 This decision, acclaimed by some as “the spiritual
descendant” of Marbury v. Madison,48 was the first in which the Council
held an act of Parliament not yet promulgated as law49 unconstitutional
because it violated the protection of liberties granted to citizens.50 The
decision was groundbreaking for a second reason: “[t]he French Constitution doubled in volume by the Constitutional Council’s will
alone.”51 The inclusion of a mere four words at the beginning of the
Council’s decision ignited a judicial revolution;52 the Council wrote, “In
view of the Constitution and notably its [P]reamble . . . .”53 The Preamble
proclaims the “solemn attachment” of the French people to the principles defined by the 1789 Declaration of the Rights of Man and of the
Citizen, as well as to the Preamble of the 1946 Constitution, which in
turn refers to “fundamental principles acknowledged by the laws of the
Republic.”54 In what some have called a “juridical coup d’état,”55 the
Council may have incorporated the Preamble, and thus the principles
and documents to which it refers, into the “bloc de constitutionnalité”—
46 Baron de Montesquieu, 1 The Spirit of the Laws 159 (Thomas Nugent trans.,
1949).
47 CC decision no. 71-44DC, July 18, 1971, J.O. 7114; George D. Haimbaugh, Jr., Was It
France’s Marbury v. Madison?, 35 Ohio St. L.J. 910, 914–15 (1974).
48 Haimbaugh, supra note 47, at 926. See generally Marbury v. Madison, 5 U.S. (1 Cranch)
137 (1803) (forming the basis for judicial review in the United States).
49 Beardsley, supra note 37, at 434 (“But for the decision of the Constitutional Council,
[the act] would have come into force upon promulgation by the President of the Republic
within fifteen days.”).
50 Id. at 431–32. “The doctrine of separation of powers, the notion that Parliamentary
legislation constitutes the authentic expression of the general will, and an aversion to ‘government by judges’ which dates back to the ancien régime have formed an insurmountable
barrier to the introduction of judicial review in France.” Id. at 431.
51 Jean Rivero, Rapport de synthèse [Summary], 33 Revue Internationale de Droit
Comparé [R.I.D.C.], 659, 662 (1981) (author’s translation).
52 Stone, supra note 39, at 68.
53 CC decision no. 71-44DC (emphasis added).
54 1958 Const. pmbl.; 1946 Const. pmbl.; see Déclaration des Droits de l’Homme
et du Citoyen [Declaration of the Rights of Man and of the Citizen] (1789). The
Preamble of the 1958 Constitution, as currently revised, also proclaims “solemn attachment” to the Environmental Charter of 2004. 1958 Const. pmbl.
55 Alec Stone Sweet, The Juridical Coup d’État and the Problem of Authority, 8 German L.J.
915, 923 (2007) (referencing the 1971 decision).
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Challenging Recent Immigration Laws in France
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the ensemble of norms to which judges must refer in the exercise of
constitutional review.56
Following the 1971 decision, one scholar argued:
The Council has thus interpreted its own authority under art.
61 in the broadest sense and has confirmed the demise of the
next to last vestige of parliamentary sovereignty in French constitutional law. The last vestige, which appears to be safe from
attack for the time being, is the immunity of legislation from
substantive constitutional challenge after promulgation.57
With stunning, recent developments in the French legal and constitutional tradition, however, this “last vestige” may be on its last legs.58
II. Discussion
France has historically oscillated between opening and closing its
borders.59 Since the mid-1970s, however, immigration laws have tightened, leading to an increase in illegal immigration.60 In 1974, for the
first time, official discourse referred to the “control of the migratory
channels,” leading to a generalized closing of the borders, severe controls on entry, and increased “policing” of clandestine immigrants already in the country.61 When François Mitterrand and the Socialist Party came to power in 1981, immigrants were granted a brief respite:
among other measures, deportations that were in progress were suspended.62 This change arguably signified recognition of the immigrant
population as a legitimate, accepted component of French society.63
Nevertheless, in December 1984, the movement towards restrictive
immigration measures resumed when the government issued a decree
56 Federico Fabbrini, Kelsen in Paris: France’s Constitutional Reform and the Introduction of
A Posteriori Constitutional Review of Legislation, 9 German L.J. 1297, 1303 (2008). But see
Beardsley, supra note 37, at 442 (“An expression of the ‘solemn attachment’ of the people
to certain ideals and principles is not a promising formula with which to impose upon a
legislature a positive obligation to respect those ideals and principles.”).
57 Beardsley, supra note 37, at 442.
58 See id.; discussion infra Part III.
59 Catherine Wihtol de Wenden, Ouverture et fermeture de la France aux étrangers: Un siècle
d’évolution [The Opening and Closing of France to Foreigners: A Century of Evolution], 73 Vingtième Siècle 27, 27 (2002).
60 Smith, supra note 24, at 1110.
61 Danièle Lochak, Les politiques de l’immigration au prisme de la législation sur les étrangers
[The Politics of Immigation Through the Prism of Legislation About Foreigners], in Les lois de
l’inhospitalité, supra note 26, at 29, 33, 34 (author’s translation).
62 Lochak, supra note 61, at 35.
63 Id. at 37.
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prohibiting spouses and children from regularizing their status on
French soil.64 The most critical and sweeping reforms came in March
1986 and then in 1993, when the Interior Minister, Charles Pasqua,
“put forth the goal of ‘zero immigration,’ later qualified to mean zero
illegal immigration.”65 These “Pasqua Laws” featured “[tougher] visa
requirements, a reduction in the number of visas issued, an expansion
of police enforcement powers, an extension of the permitted detention
period, and a narrowing of the administrative review scheme.”66 A harbinger of the severe laws to arrive in 2003 and 2006, the Pasqua Laws
authorized restrictive measures designed to “halt the influx of immigrants—particularly workers from North Africa.”67 Furthermore, the
Pasqua Laws placed thousands of immigrant families in a poignant legal dilemma: undocumented parents of French citizen children could
not legally be expelled, but were prevented by these laws from receiving
residency papers.68 Following the 1993 laws, restrictive immigrant legislation intensified (with only a brief reprieve in 1998), and the number
of sans-papiers grew steadily.69
64 Id. at 38. Lochak notes, however, that this law actually had the opposite effect of the
intended restrictive purpose; because it did not prevent families from joining the one worker established in France, they arrived anyway and simply remained in precarious legal
status. Id.
65 Smith, supra note 24, at 1118–19; Kimberly Hamilton, Patrick Simon & Clara Veniard, The Challenge of French Diversity, Migration Info. Source, Nov. 2004, http://www.
migrationinformation.org/Profiles/display.cfm?id=266.
66 Pierre Legrand, Bad U . . . ?, 29 Cardozo L. Rev. 2153, 2153–54 (2008); see Law No.
93-1027 of Aug. 24, 1993, J.O., Aug. 29, 1993, p. 12196 (concerning the regulation of immigration and the conditions of entry, of reception, and of residence for foreigners in
France); Law No. 93-1417 of Dec. 30, 1993, J.O., Jan. 1, 1994, p. 11 (formulating various
provisions concerning the regulation of immigration and modifying the Civil Code).
67 Rosemarie Scullion, Viscious Circles: Immigration and National Identity in TwentiethCentury France, 24 SubStance (Special Issue) 30, 30 (1995). “Pasqua’s sweeping policy
initiative . . . places French society at considerable odds with its venerable post-revolutionary tradition of welcoming foreigners in need.” Id.; see also Lochak, supra note 61, at 43
(arguing that the 1993 Pasqua law reformed the extant law on nationality in a clearly restrictive fashion).
68 Christian E. O’Connell, Plight of France’s Sans-Papiers Gives a Face to Struggle, 4 Hum.
Rts. Brief (1996), available at http://www.american.edu/hrbrief/04/1oconnell.cfm. But see
Kolstee, supra note 9, at 327–28 (arguing that despite this difficulty the French government
was also able to resort to a number of expulsions, deporting nearly 20,000 illegal immigrants
between 1995 and 1996).
69 Hargreaves, Multi-Ethnic France, supra note 4, at 161; Lochak, supra note 61, at
44–45 (identifying an increase in sans-papiers’ social and political advocacy movements); see
Smith, supra note 24, at 1118–21.
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A. The 2003 Law
On November 26, 2003, the National Assembly passed a set of laws
proposed by then-Interior Minister, Nicolas Sarkozy, providing even
more stringent regulations to combat illegal immigration and regulate
the admission and stay of foreigners.70 In addition to stricter requirements with respect to the waiting period before an immigrant is allowed to apply for residency papers, the law stipulates that initial receipt of residency papers is contingent upon “integration” into French
society.71
The 2003 law focusing on integration works in tandem with the
French Civil Code provision on immigration and nationality, which
grants the government broad discretion to determine whether an immigrant’s assimilation is sufficient.72 The overall effect was an assimilation requirement nearly impossible for maghrèbin immigrants in particular to satisfy, due in part to an unfortunate history of racism.73
France’s receptiveness to foreigners has followed a cycle of hostility,
“periodically giv[ing] way to widespread and aggressive xenophobia,”
directed in more recent years against Arab immigrants.74
B. The 2006 Law: Selective Immigration
In March 2006, President Sarkozy proposed an immigration bill to
the French National Assembly based on a principle of “immigration choisie,” or “selective immigration.”75 Among other provisions, his proposal
demanded that newcomers learn French language and culture, encumbered immigrant families’ ability to settle in France, restricted residency permits, and ended the automatic right of illegal immigrants to
70 Law No. 2003-1119 of Nov. 26, 2003, J.O., Nov. 27, 2003, p. 20136; Kolstee, supra
note 9, at 329.
71 Law No. 2003-1119 of Nov. 26, 2003, art. 8.
72 C. civ. arts. 21-4, 21-24.
73See William Rogers Brubaker, Introduction to Immigration and the Politics of
Citizenship in Europe and North America 1, 8 (William Rogers Brubaker ed., 1989);
Tom Hundley, Muslim Immigrants Find France Far from Welcoming, Hous. Chron., Nov. 23,
2003, at A28; see also Ben Jelloun, supra note 4, at 51–55 (arguing that modern racism
against the maghrèbins is rooted in the brutal oppression this community faced during the
period of decolonization in the early 1960s). Some have additionally explained this restrictive legislation by arguing that maghrèbin immigrants are more visible and create “a better
scapegoat for social ills.” Smith, supra note 24, at 1127–29.
74 Scullion, supra note 67, at 30–31.
75 Projet de loi rélatif à l’immigration et à l’intégration [Bill Relating to Immigration and
Integration], 2006, Bill [2986], available at http://www.assemblee-nationale.fr/12/projets/
pl2986.asp.
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receive residency papers after living in France for ten years.76 Migrants
must now sign an “integration contract,” which binds them to observe
the “French way of life.”77 The law also created a new type of residency
permit, a “skills and talents permit” specifically for “foreigners with qualifications that are judged to be important for the French economy.”78
Citing the 2005 riots, President Sarkozy insisted that France needed to
be sure it was attracting immigrants who want to integrate.79 “Humanrights groups, labor unions, leftist politicians and Muslim and Christian
leaders in France” and abroad harshly attacked the bill: Marie-George
Buffet, National Secretary of the French Communist Party called it a
“shameful law,” while one member of the Socialist Party argued it is
“dangerous, useless, and inefficient.”80 President Sarkozy, seemingly
unfazed by this criticism, unabashedly linked the suburban riots to immigration and the difficulty of integrating second-generation children
in particular. He further provoked the ire of critics by arguing that
France had effectively created a system that lets in only those who have
neither jobs nor any useful skills.81 Rushed into force, President Sarkozy’s bill became law on July 24, 2006.82
One predicted consequence was the creation of an even larger
group of sans-papiers in a precarious and ill-defined “twilight” existence
exacerbated by the new law.83 The possibilities for sans-papiers to regularize their status and that of their families dwindled, as they were no longer able to gain citizenship after ten years of residence, hard-pressed to
bring their families to join them in France, and competing with the preferred “selected” immigrants for residency permits (and the accompany-
76 French Immigraton Bill Approved, BBC News, June 17, 2006, http://news.bbc.co.uk/2/
hi/europe/5089744.stm; Emma Jane Kirby, France Reviews Immigration Rules, BBC News,
May 2, 2006, http://news.bbc.co.uk/nolpda/ifs_news/hi/newsid_4964000/4964472.stm.
77 Agence France Presse, France Approves Immigration Law That Favors Skilled Workers,
N.Y. Times, July 1, 2006, at A5.
78 Id.
79 Associated Press, French Crackdown on Illegals, Sarkozy’s Message: Assimilate or Leave,
Com. Appeal (Tenn.), Sept. 1, 2006, at A14.
80 John Ward Anderson, French Debate Immigration Limits; Assembly Approves Strict New
Rules, Seattle Times, May 18, 2006, at A13; Patrick Roger & Laetitia Van Eeckhout, Le
Parti socialiste demande le retrait du project de loi sur “l’immigration choisie” [The Socialist Party
Demands the Retraction of the Bill on “Selective Immigration”], Le Monde (Paris), May 3, 2006,
at 13 (author’s translation in text).
81 France and Immigration: Let the Skilled Come, Economist, May 6, 2006, at 28.
82 Law No. 2006-911 of July 24, 2006, J.O., July 25, 2006, p. 11047.
83 Sandford, supra note 17; Interview with Patrick Weil, Director of Research at the Centre National de la Recherche Scientifique, (Mar. 2, 2006), available at http://www.ldhtoulon.net/spip.php?article1175.
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ing health and welfare benefits).84 Nor could the growing group of sanspapiers continue to remain illegally, because the month prior to the official passage of the law, President Sarkozy announced plans to “expel
anyone found to be living in France without official papers.”85 He then
instructed government officials to give residency papers to “any families
well ‘integrated’ in French life, especially those with children in
school.”86 By September 2006, the government had received 30,000 applications, only 6,924 of which the government approved.87 Estimating
that there were about 400,000 illegal immigrants in France at the time,
50,000 of whom were children in school, a grassroots network of teachers and French families began hiding and protecting immigrants and
their children from deportation.88 Aiding these immigrants is a crime in
France, potentially punishable by fine and imprisonment.89
In September 2006, shortly after President Sarkozy’s immigration
law went into effect, many sans-papiers, including children, found themselves homeless and in danger of deportation.90 Mass evictions, carried
out by riot police storming buildings abandoned save for immigrants
squatting there, became the symbol of the tougher immigration policy.91
C. The Balladur Commission and Proposition 74
In July 2007, President Sarkozy issued a decree creating a commission, chaired by former Prime Minister Edouard Balladur, to modernize and reform the institutions of the Fifth Republic.92 The Balladur
Commission was further charged with studying the Constitution and
accompanying texts and formulating and proposing any modifications
it deemed necessary.93
In Proposition 74 of its report, the Commission recommended
amending Article 61 of the Constitution so that individuals subject to
trial would be able to argue that the law, as applied in their cases, does
84 See French Immigration Bill Approved, supra note 76.
85 Lichfield, supra note 19.
86 Id.
87 Id.
88 Wyatt, supra note 19.
89 Id.; see also GISTI, supra note 16, at 3 (explaining the punishments one may receive
in France for aiding illegal immigrants).
90 See Angela Doland, Eviction Is a Symbol of France’s Immigration Woes, Deseret Morning News (Utah), Sept. 2, 2006, at A13.
91 Id.
92 Decree No. 2007-1108 of July 18, 2007, J.O., July 19, 2007, p. 12158.
93 Id.; Letter from President Nicolas Sarkozy to Former Prime-Minister Edouard Balladur,
( July 18, 2007), available at http://www.comite-constitutionnel.fr/decret_et_lettre/?intId=2.
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not conform to “the fundamental rights and liberties recognized by the
Constitution.”94 Moreover, Article 62 would grant the Council power to
abrogate the law in question, which would account for laws that had
already been promulgated.95 Therefore, Proposition 74, if adopted,
would provide a potential basis for individuals to contest laws in force
that violate their fundamental, constitutional rights.96 On July 23, 2008,
an amended version of Proposition 74 became the new Article 61-1 of
the French Constitution.97
III. Analysis
The banlieues riots of 2005 showed that national unity with respect
to immigrants in France is threatened by “government failures to provide effective remedies to long-standing problems of socio-economic
inequality and racial discrimination.”98 The French tradition of granting certain, basic rights enshrined in the Declaration of the Rights of
Man and incorporated into the Constitution extends both to citizens
and to all human beings.99 The restrictive immigration laws of 2003 and
2006 and their predecessors, in contrast, do not reflect this tradition.
The critical question is whether sans-papiers can challenge the constitutionality of promulgated legislation on the grounds that it contravenes
the fundamental rights and liberties guaranteed to all people under the
Republic’s founding documents.100
94 Comité de réflexion et de proposition sur la modernisation et le rééquilibrage des institutions de la Vème République [Reflection & Proposal Comm. Regarding the Modernization & the Rebalancing of the Instits. of the Fifth Republic], Une Vème République plus démocratique [A More Democratic Fifth Republic] 90 (2007), available at http://www.comite-constitutionnel.fr/le_rapport/index.php.
95 Id.
96 See id. at 91 (delineating Proposition No. 74, which provided for the proposed changes to Article 61 codified in proposed Article 61-1); see also La Réforme constitutionnelle à
petits pas [Constititutional Reform in Small Steps], Le Monde (Paris), Apr. 24, 2008, at 1 (noting that if the proposed changes to the 1958 Constitution are adopted, citizens at least
would be able to defend their fundamental rights before the Constitutional Council).
97 Constitutional Law No. 2008-724 of July 23, 2008, art. 29, J.O., July 24, 2008,
p. 11890.
98 Hargreaves, Multi-Ethnic France, supra note 4, at 164.
99 Déclaration des Droits de l’Homme et du Citoyen [Declaration of the Rights
of Man and of the Citizen] (1789); Hargreaves, Multi-Ethnic France, supra note 4, at
149; Jack Mahoney, The Challenge of Human Rights: Origin, Development and Significance 25 (2007).
100 See CC decision no. 71-44DC, July 16, 1971, J.O. 7114.
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A. Constitutional Reform
On July 23, 2008, President Sarkozy promulgated a constitutional
revision law, the purpose of which was to “modernize[] the institutions
of the Fifth Republic.”101 Particularly notable among the law’s provisions is the addition of Article 61-1, which grants the Constitutional
Council a striking new power: the ability to exercise constitutional review of laws that have already been promulgated.102 The new Article 611 reads:
If, during proceedings in progress before a court of law, it is
claimed that a statutory provision infringes the rights and
freedoms guaranteed by the Constitution, the matter may be
referred by the Conseil d’État or by the Cour de Cassation to
the Constitutional Council, within a determined period. An
Institutional Act shall determine the conditions for the application of the present article.103
A modified Article 62, which accompanies this law, provides that provisions declared unconstitutional based on Article 61-1 will be abrogated.104 Article 62 endows the Constitutional Council with the flexibility to determine both the date from which repeal will be effective as
well as the “conditions and the limits according to which the effects
produced by the provision shall be liable to challenge.”105 A version of
the “institutional act” required by Article 61-1 was promulgated on December 10, 2009, which explained particular aspects and mechanics of
this provision.106
This addition to French law and to the French legal tradition may
be a new and powerful tool for sans-papiers to challenge laws that ignore
the French Republic’s fundamental principles.
101 Constitutional Law No. 2008-724 of July 23, 2008, J.O., July 24, 2008, p. 11890.
102 Id. art. 29; see 1958 Const. art. 61-1, available at http://www.conseil-constitutionnel.
fr/conseil-constitutionnel/francais/page-d-accueil.1.html (follow “La Constitution” hyperlink; then follow “version anglaise” hyperlink).
103 1958 Const. art. 61-1, translated in Conseil Constitutionnel, http://www.conseilconstitutionnel.fr/conseil-constitutionnel/francais/page-d-accueil.1.html (follow “La Constitution” hyperlink; then follow “version anglaise” hyperlink) (last visited Mar. 23, 2010).
The Conseil d’État is the administrative court of last resort. See Le Conseil d’État,
http://www.conseil-etat.fr/cde/ (last visited Mar. 23, 2010). Similarly, the Cour de Cassation is the judicial court of last resort. See Cour de Cassation, http://www.courdecassation.
fr/ (last visited Mar. 23, 2010).
104 1958 Const. art. 62, modified by Constitutional Law No. 2008-724 of July 23, 2008,
art. 30.
105 Id.
106 Institutional Law No. 2009-1523 of Dec. 10, 2009, J.O., Dec. 11, 2009, p. 21379.
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B. Inalienable and Sacred Rights
The Preamble to the 1946 Constitution begins: “In the morrow of
the victory achieved by the free peoples over the regimes that had
sought to enslave and degrade humanity, the people of France proclaim anew that each human being, without distinction of race, religion
or creed, possesses sacred and inalienable rights.”107
When the Council incorporated the 1789 Declaration, the Preamble to the 1946 Constitution, and the “fundamental principles recognized by the law of the Republic” into the “bloc de constitutionnalité,”108 it
laid the foundation for constitutional review to be used as a tool to “enshrine substantive rights.”109 In fact, in 1973, the Council found that a
portion of a finance law was not in conformity with the Constitution
because it was contrary to the “principle of equality before the law contained in the Declaration of the Rights of Man of 1789 and solemnly
reaffirmed by the Preamble of the Constitution.”110 Although some
constitutional provisions do refer to “citizens” specifically, there are
“constitutional values [that] clearly do apply to foreigners”111 and indeed “inalienably to all human beings.”112 The two groups encompassed by the Declaration of the Rights of Man and of the Citizen
(“man” and “citizen”) are not “coterminous,”113 yet sans-papiers living in
France now struggle to benefit from even the most basic of human
rights to which they are entitled.114
Since incorporating fundamental documents and principles into
the “bloc de constitutionnalité” in 1971, the Council has referred to these
documents and principles in jurisprudence relating to immigration
and nationality laws. The Council has considered, for example, whether
provisions of an immigration law resulted in “arbitrary internment”
107 1946 Const. pmbl., translated in Conseil Constitutionnel, Preamble to the Constitution of 27 October 1946, http://www.conseil-constitutionnel.fr/conseil-constitutionnel/
english/constitution/constitution.25740.html (follow “Preamble to the Constitution of 27
October 1946” hyperlink).
108 See CC decision no. 71-44DC; discussion infra Part I.C.
109 Stone, supra note 39, at 69.
110 CC decision no. 73-51DC, para. 2, Dec. 28, 1973, J.O. 14004 (author’s translation).
111 John Bell, French Constitutional Law 203 (1992).
112 Hargreaves, Immigration, ‘Race’ and Ethnicity, supra note 1, at 160.
113 Id.
114 See Bell, supra note 111, at 203 (“There is thus a distinction between human rights
and the rights of the citizen. Only citizens have equal rights to settle in France; to vote or to
accede to public office. On the other hand, everyone has an equal right to human rights.”). See generally GISTI, supra note 16 (explaining the rights that sans-papiers do not have
and providing legal ways in which sans-papiers may nonetheless be able to gain some access
to the fundamental protections and assistance provided to citizens).
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contrary to the 1789 Declaration and Article 66 of the 1958 Constitution,115 recognizing that the principle of “individual liberty” applies to
noncitizens.116 On a separate occasion, the Council found that language from a nationality law did not conform to Article 8 of the 1789
Declaration.117 In 1993, the Council explicitly considered whether provisions of a Pasqua-era law were in conformity with the 1789 Declaration and the 1946 Preamble.118 The law at issue was later promulgated
so as to reflect the Council’s decision.119 To be sure, the Council recognized that no constitutional principle or rule guaranteed “foreigners”
general or absolute rights to access or to remain on “national territory,”
and that “foreigners find themselves in a different situation than nationals” in the legal arena; nonetheless, the Council noted that the legislature must “respect the liberties and fundamental rights of constitutional value recognized for all who reside on the territory of the Republic.”120 The Council then explained that these rights and liberties
include:
individual liberty and safety, notably the liberty to come and
go, the liberty of marriage, the right to lead a normal family
life; that in addition foreigners benefit from rights to social
protection, from the time that they reside in a stable and regular manner on French territory; that they must benefit from
being able to seek recourse to assure the guarantee of these
rights and liberties.121
Instead, sans-papiers remain “victims of arbitrary treatment by the
authorities, employers and landlords;”122 subject to arbitrary detention;123 restricted from housing, employment, and welfare benefits;124
and potentially deportable, along with their children, if they do not sufficiently assimilate into French society.125 This continuous refusal to
115 CC decision no. 79-109DC, paras. 1–2, Jan. 11, 1980, J.O. 84 (author’s translation).
116 Id. para. 4.
117 CC decision no. 93-321DC, para. 15, July 23, 1993, J.O. 10391.
118 CC decision no. 93-325DC, Aug. 18, 1993, J.O. 11722 (concerning a law relating to
the regulation of immigration and the conditions of entry, of reception, and of residence
for foreigners in France).
119 Law No. 93-1027 of Aug. 24, 1993, J.O., Aug. 29, 1993, p. 12196.
120 CC decision no. 93-325DC, paras. 2–3 (author’s translation).
121 Id. para. 3 (author’s translation).
122 Hayter, supra note 30, at 143.
123 See Crampton, supra note 11.
124 Sandford, supra note 17.
125 See, e.g., C. civ. arts. 21-4, 21-24, 21-25 (assimilation requirements); Lichfield, supra
note 19.
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recognize fundamental rights and dignities of sans-papiers, if not remedied, may result in “substantial degradation of the liberties of all.”126
After the Council took the initial, prescient step of incorporating
fundamental principles and documents into the “bloc de constitutionnalité,” the then-president of the Council explained that, by doing so,
“[the Council] could thus create a veritable judicial bastion for the defense of the rights of citizens.”127 Perhaps this same “judicial bastion”128
can now be summoned to defend the rights of sans-papiers as a vehicle
for guaranteeing their basic rights and the recourse necessary for them
to seek protection of these rights, which the Republic intended to be
available for all people—not just for citizens.129 Over a decade ago,
scholars called for the abrogation of restrictive legislation targeting
sans-papiers, finding that legislation to be “indefensible, as much from
the point of view of efficiency as from that of human rights.”130 The
more recent laws of 2003 and 2006 have diminished the legal position
of sans-papiers and expanded the “right-less” zone at the heart of French
society, at the price of fundamental rights and dignities.131 The new and
unprecedented power granted to the Council by Articles 61-1 and 62
presents the means by which the Council could abrogate these laws,132
moving from protests and riots to resistance based on constitutional
review.133 Equipped with newfound authority to invalidate laws after
promulgation, the Council can now benefit from seeing the application
of laws and the impact such laws have on sans-papiers before deciding
whether these laws conform to the Constitution.134
Granted, even if the Council were eventually to abrogate the 2003
and 2006 laws, sans-papiers would still face a daunting struggle to regularize their status. Nevertheless, abrogating these laws would be a critical and forceful step toward ending the repressive cycle, stabilizing the
126 Terray, supra note 34, at 260 (author’s translation).
127 Stone, supra note 39, at 68 (quoting Gaston Palewski, Proces leca contre Palewski et “la
Revue”: Le jugement, Revue des Deux Mondes, 367, 372 (1979)).
128 Id.
129 See CC decision no. 93-325DC, para. 3; Hargreaves, Immigration, ‘Race’ and
Ethnicity, supra note 1, at 160 (“The Rights of Man proclaimed in August 1789 was held
to be valid not only for every individual in France, but for the whole of humanity.”).
130 Didier Fassin et. al., Conclusion: Pour une politique de l’hospitalité [Conclusion: For a
Policy of Hospitality], in Les lois de l’inhospitalité, supra note 26, at 263, 278 (author’s
translation).
131 Terray, supra note 34, at 258 (author’s translation).
132 1958 Const. arts. 61-1, 62.
133 Terray, supra note 34, at 260–61 (“We must ask ourselves if the moment has not
come to move from protest to resistance.”) (author’s translation).
134 See 1958 Const. arts. 61-1, 62.
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sans-papiers’ situation, and ensuring that all people in France benefit
from the fundamental rights they are guaranteed.135
Conclusion
France’s historic struggle to integrate immigrants into French society erupted in violence in 2005. Repressive legislation promulgated
notably in 2003 and 2006 has had an increasing impact on sans-papiers,
and many now face deportation.
The Balladur Commission’s recent proposal that the country
adopt some mechanism for the Constitutional Council to declare
promulgated laws unconstitutional in order to protect individual liberties provided cause for hope. When the Commission’s proposal was
adopted and included in the most recent constitutional revision, this
hope moved exponentially closer to becoming reality. Depending on
how this new law is applied and construed, sans-papiers may be able to
challenge repressive immigration laws as inconsistent with the fundamental rights and liberties guaranteed by the founding documents of
the French Republic. At a minimum, this recent evolution of constitutional review in France reveals an increased recognition that legislation,
even after promulgation, may not be in conformity with fundamental
rights and, accordingly, should be repealed.
135 See GISTI, supra note 16, at 1 (asserting that promoting the fundamental rights of
sans-papiers stems from an obligation of citizens to act in favor of equal treatment as between French people and foreigners as well as to promote the rule of law more generally);
see also Terray, supra note 34, at 249 (arguing that the sans-papiers’ struggle to gain basic
rights should be of concern to French citizens as the plight of the sans-papiers is inconsisent
with the continued existence of a state founded on law and human dignity).
INSERTED BLANK PAGE
STIMULATING THE STIMULUS:
U.S. CONTROLLED SUBSIDIARIES
AND I.R.C. 965
Matthew Jerome Mauntel*
Abstract: Recently, there has been much debate about how and when to
balance the federal budget. Economists have examined how to safely raise
taxes without stifling crucial growth in a fragile economic climate. This
Note argues that a method already exists for tapping additional, secure
sources of funding, namely the taxation of repatriated earnings from foreign subsidiaries. The Note explores the advantages and disadvantages of
reenacting a tax break on foreign profits returning to the U.S. and concludes that the reenactment of this tax break coupled with major revision
of the tax code will improve the taxation of U.S. businesses with subsidiaries abroad. These two acts are keys to a more honest and more effectual
international tax system.
Introduction
As the economic stimulus bill of 2009 passed through the houses
of Congress, there were innumerable attempts to support pet projects
and self-righteous causes in the name of fixing the U.S. economy.1 With
the logic of “what’s a few billion more anyway?,” Congress has tried to
give more money to schools, alternative energy, and law enforcement,
for example.2 In the midst of these power plays was an idea that may
help fund these potential catalysts of economic growth: the resurrection of a tax holiday for repatriation of untaxed income earned by multinational companies.3
Like individuals and small businesses, large multinational companies that do business in the United States must pay taxes to the U.S.
* Matthew Mauntel is an Articles Editor for the Boston College International & Comparative Law Review. He would like to thank his parents and friends who enabled him to succeed in producing this Note.
1See David M. Herszenhorn, Bipartisan Push to Reduce Costs of Stimulus Plan, N.Y. Times,
Feb. 6, 2009, at A1.
2 See id.
3 Ryan J. Donmoyer, Lilly, Oracle Lose Senate Bid for Overseas-Profits Tax Discount, Bloomberg, Feb. 4, 2009, http://www.bloomberg.com/apps/news?pid=conewsstory&refer=cone
ws& tkr=CSCO%3AUS&sid=anUvSkYMAtT8.
107
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government.4 Due to a strange confluence of corporate and tax law,
however, these companies are able to defer taxes on their income
earned in foreign-based subsidiaries.5 Multinationals store their income
in countries with low tax rates, enabling them to avoid the higher U.S.
rates they should be paying.6 The amount held in these foreign havens
is staggering.7 For instance, IRS data indicates that there were $804 billion in earnings and profits of controlled subsidiaries in 2005, with only
$362 billion actually repatriated and taxed, but at a sharply reduced
rate.8
Congress has made prior attempts to tax this income at normal
rates9 but instead has settled for a sharply reduced tax rate in the hope
that U.S.-based parent companies will create domestic jobs.10 The recession and subsequent stimulus bills have put the United States government in a financially horrifying position.11 Some argue that any
source of income that has not been utilized thus far should be pursued
with alacrity.12 Others opine that the federal government should begin
encouraging businesses to repatriate their income back into the United
States by either reducing permanently or eliminating the tax on income earned abroad by subsidiaries, allowing them to finance their
own bailouts.13
4 See Letter from Benjamin Franklin to Jean-Baptiste Leroy (Nov. 13, 1789), in 10 The
Works of Benjamin Franklin 409, 410 ( Jared Sparks ed., Hilliard Gray 1840) (“[I]n this
world nothing can be said to be certain, except death and taxes.”).
5 See Craig M. Boise, Breaking Open Offshore Piggybanks: Deferral and the Utility of Amnesty,
14 Geo. Mason L. Rev. 667, 668 (2007) (elucidating the anomaly created by basic corporate and tax laws).
6 See Lee A. Sheppard & Martin A. Sullivan, Multinationals Accumulate to Repatriate, 53
Tax Notes Int’l 376, 376 (2009) [hereinafter Multinationals Accumulate].
7 See Lee A Sheppard & Martin A Sullivan, Repatriation Aid for the Financial Crisis?, 53
Tax Notes Int’l 275, 276 (2009) [hereinafter Repatriation Aid].
8 See id.
9 See I.R.C. § 61(a) (West 2008). All references hereinafter to “I.R.C.” are to the Internal Revenue Code of 1986.
10 See I.R.C. § 965; see Repatriation Aid, supra note 7, at 276–77 (“Economists concluded
that the repatriation holiday produced a windfall gain for companies with large amounts
of accumulated earnings in low-tax countries. They found that companies used the funds
principally for share repurchases. And they found that companies that benefited from the
holiday were no more likely to spend on growing their businesses than companies that did
not benefit.”).
11 See Fin. Mgmt. Serv., Dept. of Treasury, 2008 Combined Statement of Receipts,
Outlays, and Balances 9, available at http://www.fms.treas.gov/annualreport/index.html.
12 See Multinationals Accumulate, supra note 6, at 376.
13 See Mihir A. Desai & James R. Hines, Jr., Old Rules and New Realities: Corporate Tax Policy in a Global Setting, 57 Nat'l Tax J. 937, 957 (2004) (arguing that U.S. taxation of foreign
entities reduces their ability to effectively compete in a global scale).
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This Note outlines the problem of taxing income of foreign subsidiaries and why the reenactment of section 965 of the Internal Revenue Code failed. Part I describes the background of the problem and
the attempt by members of Congress to reenact section 965. Part II
then explores the legal framework and implications of section 965. Part
III analyzes the effects of successfully levying taxes on foreign subsidiaries and those of giving up attempts at such taxation.
I. Background
A. Why Is There a Problem?
The United States subscribes to a “resident-based” tax system,
which taxes corporations either “created or organized in the United
States or under the law of the United States or of any State,”14 or “effectively connected with the conduct of a trade or business within the United States.”15 According to this definition, corporations organized in the
United States with subsidiaries abroad are taxed on income from their
business operations worldwide.16 Their foreign subsidiaries, which have
been organized within foreign jurisdictions, are excluded from these
U.S. income taxes, however, as long as their income is not realized by
the U.S.-based parent.17 The only vehicle through which the parent
company may realize the income of the subsidiary is the stock which is
controlled by the parent.18 Realization of the subsidiary’s income by the
parent corporation occurs if the parent either sells its stock in the subsidiary or if the subsidiary pays dividends on that stock.19
Such a system of worldwide taxation would result in a double tax
on foreign-earned profits, effectively eliminating any chance of U.S.
investment abroad; therefore, a tax credit is given to offset the difference between the two rates.20 The credit is equal to the tax rate applied
14 I.R.C. § 11 (stating that all corporations are taxed on their income, but that is further limited to domestic corporations by I.R.C. § 882); I.R.C. § 7701(a)(30) (stating that a
“United States person” includes any domestic corporation for income tax purposes).
15 I.R.C. § 882(a)(1).
16 See I.R.C. § 11(a) (“A tax is hereby imposed for each taxable year on the taxable income of every corporation.”) (emphasis added); I.R.C. § 882(a)(1) (defining as “taxable
income [that income] which is effectively connected with the conduct of a trade or business within the United States”).
17 See Boise, supra note 5, at 667.
18 See id. at 667–68.
19 See I.R.C. § 11(d).
20 See I.R.C. §§ 901, 902 (stating that taxes paid to a foreign state are considered paid
to the United States).
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in the foreign country in which the subsidiary is organized.21 If the foreign tax rate is greater than the U.S. rate, the corporation can use the
surplus tax credit to offset other profits; however, if the foreign rate is
lower than that of the U.S., as it typically is, then the company must pay
the resulting balance to the U.S.22
The problem with taxing income of foreign subsidiaries with U.S.based parent companies occurs because of the convergence of two basic concepts.23 First, in our legal system, corporations are treated as individuals separate from their shareholders.24 If a subsidiary is formed
outside of the jurisdiction of the United States, it is considered a foreign individual.25 The upshot of this principle is that parent companies
and their controlled subsidiaries are legally separate individuals despite
the fact that their stock is often wholly owned by a U.S.-based corporation.26 So long as income is not transferred from subsidiary to parent,
the parent corporations are taxed only on the income they earn, not on
the income of other companies they control.27 The United States only
taxes individuals within its jurisdiction, so corporate entities established
outside of the country are not U.S. residents and therefore are not
taxed.28 Even controlled foreign subsidiary corporations whose entire
cache of stock is owned by a U.S. parent company are still absolutely
21 See I.R.C. § 902(b)(1)(B) (stating that “foreign corporation shall be deemed to have
paid the same proportion of such other member’s post-1986 foreign income taxes as
would be determined under subsection (a) if such foreign corporation were a domestic
corporation”).
22 See id. For example, the U.S. tax rate for these companies is typically 35%, and the
hypothetical tax rate in Ireland is 25%. I.R.C. § 11(b)(1)(D). A subsidiary of a U.S. company in Ireland would be taxed by the Irish government at its 25% rate and then a credit
would be given by the U.S. for that amount. See id. The company would then have to pay
the remaining 10% (i.e. 35%-25%). See id.
23 See Boise, supra note 5, at 668.
24 Black’s Law Dictionary defines a corporation as:
[a]n entity (usu. a business) having authority under law to act as a single person distinct from the shareholders who own it and having rights to issue stock
and exist indefinitely; a group or succession of persons established in accordance with legal rules into a legal or juristic person that has a legal personality distinct from the natural persons who make it up, exists indefinitely apart
from them, and has the legal powers that its constitution gives it.
See Black’s Law Dictionary 151 (3rd pocket ed. 2006).
25 See id. at 152.
26 See id. at 151.
27 See I.R.C. §§ 11(a), (d), 882(a).
28 See id. (assuming the foreign-based corporations do not engage in trade or business
within the U.S. as defined in § 882).
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separate foreign juridical persons in the eyes of U.S. law, including the
tax code.29
Second, shareholders of a company are not obligated to pay taxes
on the profits of the company until those profits are formally realized
through a dividend payment or sale of the stock.30 Thus, as long as foreign-based subsidiaries do not pay dividends on their stock, no income
is reported.31 Because the U.S. parents do not report the income made
by their controlled foreign subsidiaries, no taxes are collected.32
These two concepts when considered together create a gigantic
loophole through which parent companies in the United States with
subsidiaries abroad are able to defer payment of income tax indefinitely.33 Given that the foreign subsidiary is not a part of the parent, but
merely has the parent as its controlling shareholder, taxes on income
made abroad do not have to be paid until a dividend is declared or
stock is sold.34 Unsurprisingly, these companies have taken to exploiting this loophole and are hoarding over half a trillion dollars in subsidiary profits in countries where taxes are low by not paying dividends
and holding on to stock.35
B. What Has Congress Done About It?
In 2006 and 2007 there was a 72% increase in unrepatriated income in foreign subsidiaries, swelling the figure from $558 billion to
$958 billion.36 These enormous figures mean that the U.S. is being
robbed of up to $335.3 billion in unpaid tax revenue.37 There has been,
however, heated debate about whether the U.S. should be taxing income of foreign corporations at all.38 Unfazed by these disagreements,
29 See id. §§ 11(b), 882.
30 See id. § 61(a); Eisner v. Macomber, 252 U.S. 189, 219 (1920) (“[N]either under the
Sixteenth Amendment nor otherwise has Congress power to tax without apportionment a
true stock dividend made lawfully and in good faith, or the accumulated profits behind it,
as income of the stockholder.”).
31 See I.R.C. § 61(a); Eisner, 252 U.S. at 219.
32 See I.R.C. § 61(a); Eisner, 252 U.S. at 219.
33 See discussion infra Part II A–B.
34 See I.R.C. § 61(a)(3), (7).
35 See Multinationals Accumulate, supra note 6, at 377 (“By the end of fiscal 2007 these
multinationals had replenished their stash of unrepatriated earnings to $518 billion—a 72
percent increase in two years.”).
36 Repatriation Aid, supra note 7, at 281.
37 See I.R.C. § 11(b)(1)(D). The calculation is done using the 35% tax rate and multiplying it with the possible $958 billion of foreign unrepatriated income. See id.
38 Compare Desai & Hines, supra note 13, at 957 (arguing that these taxes reduce these
companies’ ability to compete in foreign markets), with Multinationals Accumulate, supra
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Congress has amended the tax code in an effort to access this huge deposit of untaxed income, with mixed results.39
One of the latest amendments of this type was section 965 of the
Internal Revenue Code.40 Section 965 was enacted by Congress in 2004
as a part of the American Jobs Creation Act.41 The new provision gave
multinational companies in the United States an 85% tax break on income derived from subsidiaries in foreign countries if that income was
repatriated through cash dividends to the U.S. parent company within
a one-year timeframe.42
There were several stipulations to this incredible tax break, the
most important of which was the Domestic Reinvestment Plan (DRIP)
requirement, which stated that companies had to spend their dividends
on job creation measures in the U.S.43 The DRIP requirements were
not as effective at creating American jobs as Congress had hoped, but
rather the cash was used to shore up domestic corporate health.44 The
plans were disregarded outright by a number of companies while others were slightly more subtle in their methods, though the result was
the same: spending to directly increase their stock value rather than
invest in the limited domestic market.45
note 6, at 376 (arguing that U.S. corporations should pay income taxes, but that section
965 was ineffective in compelling them to do so).
39 See American Jobs Creation Act of 2004, Pub. L. No. 108-357, 118 Stat. 1418 (codified as amended in scattered sections of 26 U.S.C.); Repatriation Aid, supra note 7, at 276–
77.
40 See American Jobs Creation Act of 2004, Pub. L. No. 108-357, § 271, 118 Stat. 1418
(adding § 965 to the I.R.C.).
41 See id.
42 See I.R.C. § 965.
43 See id. at (b)(4).
44 See Repatriation Aid, supra note 7, at 278–79.
Higher levels of repatriations, however, were not associated with increased
domestic capital expenditures, domestic employment, or research and development expenditures. In fact, increased repatriations in response to the
[Homeland Investment Act (HIA)] had small negative, but insignificant, effects on each of these measures of activity in instrumental variable specifications. Even firms that increased contributions to congressmen responsible for
drafting the HIA and who belonged to a lobbying coalition that asserted that
the tax holiday would allow them to increase domestic investment did not
significantly increase their domestic expenditures.
Id. at 278–79 (quoting Dhammika Dharmapala et al., The Unintended Consequences of the
Homeland Investment Act: Implications for Financial Constraints, Governance, and International Policy 4 (Sept. 20, 2008) (unpublished statistical analysis), available at http://www.
people.hbs.edu/ffoley/HIA.pdf.
45 See id. at 277.
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The consequence of section 965 was a 5.25% tax on $315 billion,
resulting in $16.5 billion in revenue for the U.S. Treasury.46 One of the
side-effects of this tax holiday was that companies moved even more intangible assets abroad, seemingly biding their time for a second holiday
and decreasing their domestic value.47 The immediately lucrative effects
coupled with a renewed call for a tax holiday on offshore assets have
brought the reenactment of section 965 to the congressional forefront.48 Corporations continue their lobbying efforts in the face of a recent setback in which a reenactment was rejected.49 Despite the U.S.
government’s dire need for tax money and the need to bring assets into
the domestic, taxable arena, Congress has rejected a second tax holiday.50
II. Discussion
A. How Are Corporations Taxed?
The United States has a “resident-based” income tax system.51 A
resident-based tax system is one in which only those who are citizens or
residents are taxed; thus, foreign individuals are not within the jurisdiction of the tax code.52 This concept is codified in section 11 of the Internal Revenue Code (“I.R.C.”).53 The reach of section 11 to foreign
corporations is limited by section 11(d), which limits taxes on foreign
corporations to only those allowed by section 882.54 Section 882 defines
taxable income from foreign corporations as the “gross income which
is effectively connected with the conduct of . . . business within the
United States.”55
46 See id. at 276 (5.25% of $315 billion is $16.5 billion).
47 See Multinationals Accumulate, supra note 6, at 376.
48 See Donmoyer, supra note 3.
49 See id.
50 See id.
51 See I.R.C. § 11 (stating that all corporations are taxed on their income, but limiting
its scope to domestic corporations pursuant to I.R.C. § 882); I.R.C. § 7701(a)(30) (stating
that a “United States person” includes any domestic corporation for income tax purposes).
52 See id. §§ 11, 882, 7701(a)(30); Restatement (Third) of the Foreign Relations
Law of the United States § 412(1)(a) (1987) (explaining that a state may exercise jurisdiction to tax an individual who is a resident of the state, who does business in the state, or
who owns property in the state).
53 I.R.C. § 11 (limiting the taxation of individuals to those who either reside in the
state or whose income is derived from actions or properties in the state, as codified in later
sections of the I.R.C.).
54 See id. § 11(d).
55 Id. § 882(a)(2).
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The U.S. Federal Government has made an effort to impose taxes
upon foreign companies which are controlled by U.S.-based parents.56
A controlled company is defined as:
any foreign corporation if more than 50 percent of—
(1) the total combined voting power of all classes of stock of
such corporation entitled to vote, or
(2) the total value of the stock of such corporation, is owned
(within the meaning of section 958(a)), or is considered as
owned by applying the rules of ownership of section 958(b),
by United States shareholders on any day during the taxable
year of such foreign corporation.57
This means that any foreign corporation which has over 50% of its stock
owned by a U.S. individual, including a corporation, is considered “controlled” for the purposes of taxation.58
A controlled foreign corporation is not subject to United States income taxation due to the residence-based income tax system to which
the U.S. subscribes.59 Corporations are considered individuals under
U.S. law, and their citizenship is based on where they are organized.60
Due to this system of legal organization of corporations in the United
States, a corporation founded in a foreign jurisdiction is considered a
foreign citizen.61 Therefore, even if a foreign company is “controlled”
according to I.R.C. section 957(a), it is still not taxed on its income due
to its status as a non-resident.62
The next logical question is: why does the U.S. government not tax
the controlling domestic company? The answer involves a basic principle of the I.R.C.63 Section 61(a) of the I.R.C. states that stockholders are
obligated to pay any income taxes on the sale of property or gain from
dividends, but not valuation increases in the stock they possess.64 Instead of a tax on stock valuation changes, the federal government taxes
56 See id. §§ 951–964, 1291–1298 (codifying anti-deferral rules for controlled corporations and anti-deferral rules on passive foreign investment).
57 Id. § 957(a).
58 See id.
59 See I.R.C. §§ 11, 882, 7701(a)(30).
60 See Black’s Law Dictionary 151, 152 (3rd pocket ed. 2006).
61 See id. at 152.
62 See I.R.C. §§ 11, 882. This tax treatment is subject to whether the company has participated in business within the United States. See id. § 882(a)(2).
63 See id. § 61(a).
64 Id. § 61(a)(3), (7).
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profits from stock when the income is “realized.”65 For the income to be
realized through stock the stock must be sold or a dividend awarded.66
Consequently, the only way to tax profits from a foreign company
with no business in the U.S., but with a U.S. stockholder is to tax the
domestic stockholder.67 The U.S. government taxes any dividends distributed or profits from the sale of stock, but these two events do not
occur often for large controlled multinational companies.68 Controlled
foreign corporations and their U.S. parents are well aware of the government’s limitations and thus do not pay dividends.69 Instead, domestic companies allow their foreign subsidiaries to hold the profits in their
local jurisdiction,70 which invariably has a lower tax rate.71 If no dividends are paid, and if the controlling corporation does not sell its
stock, the foreign corporation escapes U.S. income taxation.72
B. The Problem and the Response
The problem is that U.S. companies who want to avoid paying U.S.
income taxes on their business abroad merely have to set up a foreign
subsidiary.73 The result is a legally separate entity that is able to pursue
business ventures in foreign nations and enrich the parent company’s
stock value while never paying a cent of U.S. income tax on its active
profits.74 The United States is left in a conundrum: to continue in its
flailing attempts at taxation of foreign subsidiaries, or to rethink the
current tax code to take into account the realities of the situation.75
Congress is well aware of these multinational monies and has enacted provisions of the tax code to tax the profits of U.S.-controlled
companies abroad.76 These provisions discuss passive income from
highly mobile sources but do not address the general income a company makes in ordinary business.77 U.S. parent companies that control
65 See Eisner v. Macomber, 252 U.S. 189, 212 (1920).
66 See id.
67 See I.R.C. §§ 11, 61(a), 882, 7701(a)(30); Eisner, 252 U.S. at 212.
68 See I.R.C. § 61(a)(3), (7); Multinationals Accumulate, supra note 6, at 376.
69 See Multinationals Accumulate, supra note 6, at 376.
70 See id.
71 See Repatriation Aid, supra note 7, at 276.
72 See I.R.C. § 61(a).
73 See id. §§ 11, 882.
74 See id. §§ 11, 882, 951–964, 1291–1298 (codifying that domestically-controlled foreign companies are taxed only on their passive income, if at all).
75 See Joann M. Weiner, Bring Back the U.S. Repatriation Tax Holiday, 53 Tax Notes Int’l
283, 283–84 (2009).
76 See I.R.C. §§ 951–964, 1291–1298.
77 See id. §§ 1291–1298.
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foreign subsidiaries are subject to taxation on all profits from passive to
active income.78 They are able to defer taxation on the profits of controlled companies until they repatriate the income from those subsidiaries in the form of dividends.79 The deferred income taxes owed by
U.S. parent companies on profits made in their controlled foreign subsidiaries continue to be out of reach unless Congress amends the tax
code in order to take this practice into account.80
In another attempt at effective worldwide taxation, Congress
passed the American Jobs Creation Act in 2004, section 271 of which
added new section 965 of the Internal Revenue Code (section 965).81
Section 965 granted a temporary tax holiday for U.S. multinational
companies holding profits and intangible assets abroad.82 The section
allowed dividends paid by controlled foreign companies to their U.S.
parent shareholders to be taxed at a sharply reduced rate if they paid
those dividends within a limited timeframe.83 Congress’ goal was to lessen the burden of taxation on foreign profits as a means of encouraging corporations to repatriate their profits in dividends and bring in at
least a portion of the tax revenue.84
Section 965 “allowed as a deduction an amount equal to 85 percent
of the cash dividends” received during the year the section was active by
shareholders “from controlled foreign corporations.”85 The original rate
of income taxation for the majority of these multinational corporations
was 35%, making the 85% reduced rate equal 5.25%.86 The maximum
amount allowed to be repatriated was the greatest of: (1) $500 million;
(2) the amount listed on a financial statement as permanently reinvested outside the United States; or (3) failing sufficient information on
the financial statement, the amount of tax liability attributable to earn78 See U.S. Const. amend. XVI; I.R.C. § 11.
79 See I.R.C. § 61(a)(7).
80 See Weiner, supra note 75, at 290–91.
81 See American Jobs Creation Act of 2004, Pub. L. No. 108-357, § 271, 118 Stat. 1418.
82 See I.R.C. § 965.
83 See id.
84 See H.R. Rep. No. 108-548(I), at 146 (2004).
The Committee observes that the residual U.S. tax imposed on the repatriation
of foreign earnings can serve as a disincentive to repatriate these earnings. The
Committee believes that a temporary reduction in the U.S. tax on repatriated
dividends will stimulate the U.S. domestic economy by triggering the repatriation of foreign earnings that otherwise would have remained abroad.
Id.
85 I.R.C. § 965(a)(1).
86 See id. § 11. The calculation is made by multiplying the applicable tax rate of 35% by
the remaining tax of 15% (100%-85%) to get 5.25%. See id.
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ings reinvested outside the United States divided by 35%.87 Pfizer repatriated more income than any other U.S. parent company, totaling a
whopping $37 billion itself, which was more than 10% of the entire
amount repatriated by all companies under section 965.88 The amount
Pfizer would have paid without the tax break is nearly $13 billion.89 Instead, the company paid only about $2 billion under the auspices of section 965’s holiday.90
Rather than freely allowing corporations to gain the benefit of decreased tax rates, Congress included stipulations as to what companies
must do with their tax savings.91 Section 965 required the corporations
that wished to take advantage of the tax holiday to do so within the applicable year and also required to enact an investment plan referred to
as a DRIP.92 The DRIP had to be approved by the president, CEO, or
other equivalent company official and was supposed to map out how
the dividend would be spent.93 The dividend was allowed to be spent
on reinvestment in the United States, including workers, infrastructure,
research and development, capital investments, or financial stabilization for job retention or creation.94 Expenditures on executive compensation were specifically disallowed.95
The result was not the titular “American Jobs Creation,” but rather
the enrichment of large multinationals who had deferred paying billions.96 Since money is fungible, the repatriating companies merely had
to move money out of an area like research and development, move in
some of the dollars from repatriation, and then spend the money formally marked for R&D on stock buybacks and executive compensation.97 For instance, a company could be initially spending $100 million
on workers and infrastructure and then choose to repatriate $100 million from a foreign controlled subsidiary. In accordance with section
87 Id. § 965(b)(1)(A)–(C).
88 See Multinationals Accumulate, supra note 6, at 376, 379 (stating that $362 billion was
repatriated, and Pfizer alone repatriated $37 billion).
89 See I.R.C. § 11 (multiplying Pfizer’s repatriated $37 billion by the 35% original tax
rate).
90 See id. §§ 11, 965 (multiplying Pfizer’s repatriated $37 billion by the 5.25% reduced
tax rate).
91 See id. § 965(b)(4).
92 See id.
93 See id.
94 See id.
95 See I.R.C. § 965(b)(4).
96 See American Jobs Creation Act § 271; Multinationals Accumulate, supra note 6, at 379
(demonstrating that corporations had been withholding billions prior to the tax holiday).
97 See Repatriation Aid, supra note 7, at 277.
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965, the company enacts a DRIP stating that it will spend the $100 million from repatriation on workers and infrastructure, and then it shifts
the original $100 million to executive compensation.98 The result is no
net increase in the areas of job creation targeted by Congress, but with
no recourse possible by the Internal Revenue Service since the company technically did follow the letter, albeit not the spirit, of the law.99
These large multinational companies avoided the DRIP requirement by merely moving around their money.100 Only a few stated outright that they were using the repatriated funds for stock buybacks and
executive compensation, but an analysis of other corporations’ finances
revealed that such a practice was widespread.101 The companies merely
took money out of areas in which the DRIP required them to invest and
then replaced that money with funds from the repatriated dividends.102
Many of the companies even cut jobs after they repatriated billions.103
Despite these well-known results, some members of Congress proposed
reenacting section 965 in February 2009 as a part of the $819 billion
economic stimulus package.104 Such practices fulfilled the requirements of the DRIP, but dodged Congress’ intended effects on stimulating domestic investment.105
On its face, such activity looks like intentional misuse of the funds
Congress intended for certain explicit purposes; however, some tax writers see the effects of section 965 as desirable.106 The debate between
those that viewed section 965 as a success and those that saw it as a failure is directly related to whether those individuals believe there should
be a reenactment of the provision.107 The proposal was voted down on
February 4, 2009, but the discussion of what to do about foreign subsidiaries’ profits continues.108 It is informative to apply each side of the de98 See id.
99 See id.
100 See Roy Clemons & Michael R. Kinney, An Analysis of the Tax Holiday for Repatriation
Under the Jobs Act, 52 Tax Notes 759, 761 (2008).
101 See Repatriation Aid, supra note 7, at 277.
102 See Clemons & Kinney, supra note 100, at 761.
103 See Repatriation Aid, supra note 7, at 277.
104 See Chuck O’Toole, Stimulus Bill Passes House, Grows in Senate, 122 Tax Notes 568,
568, 570 (2009).
105 See Repatriation Aid, supra note 7, at 277.
106 See Weiner, supra note 75, at 284–85, 291.
107 Compare Repatriation Aid, supra note 7, at 281 (stating that repeated tax holidays
would increase profit-shifting to offshore subsidiaries, moving more investment dollars
outside the U.S.), with Weiner, supra note 75, at 286 (stating that the current system of
taxation actively discourages corporations from bringing income back into the U.S., which
would be at least temporarily relieved by another tax holiday).
108 See Donmoyer, supra note 3; Weiner, supra note 75, at 283.
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bate’s reasoning, along with the practices in Canada, in assessing whether the reenactment of section 965 was rightfully voted down or if it
should have been given closer consideration by Congress and passed.109
C. The Debate
On one hand, the stated original purpose of section 965, to boost
American job creation, effectively failed.110 The argument on this side
of the debate focuses on how the repatriating companies have taken
advantage of a flaw in the tax code111 and have circumvented the stated
goal of Congress: to grow American jobs as emphasized in the DRIP
requirement.112 There has been an increase in unrepatriated earnings
since the enactment of section 965, indicating that companies are preparing to take advantage of a new wave of tax breaks.113 Some state that
corporations have benefited hand over fist and that they should not be
allowed to do so at the expense of American jobs and investment.114
On the other hand, the U.S. Treasury saw a tax revenue increase of
$16.4 billion.115 The increase is attributable to the federal government
at least temporarily adopting a competitive worldwide taxation strategy.116 This side argues that without such a change, the “reduced” revenue of $16.4 billion would have been $0.117 Furthermore, the only way
to permanently increase the tax revenues from controlled foreign subsidiaries is to remove the repatriation disincentive from multinational
business.118
In addition, Canada has installed a permanent tax “holiday” in
that its Income Tax Act does not impose taxes on dividends received
from controlled foreign corporations as long as a tax treaty has been
established with the country of the subsidiary.119 The various treaties
109 See Donmoyer, supra note 3.
110 See Repatriation Aid, supra note 7, at 277.
111 See id. at 276–78.
112 See id. at 277.
113 See Multinationals Accumulate, supra note 6, at 377.
114 See Repatriation Aid, supra note 7, at 281, 283.
115 See Weiner, supra note 755, at 283.
116 See id. at 289–90.
117 See id. at 283.
118 See H.R. Rep. No. 108-548(I), at 146 (2004).
119 See Income Tax Act (I.T.A.), R.S.C., ch. 1, pt. I, § 126(7) (1985) (Can.); Convention
Between the United States of America and Canada with Respect to Taxes on Income and on
Capital, U.S.-Can., art. XXIV, § 2(b), Sept. 26, 1980, T.I.A.S. 11087, 1469 U.N.T.S. 189 [hereinafter U.S.-Canada Tax Treaty] (“[A] company which is a resident of Canada shall be allowed to deduct in computing its taxable income any dividend received by it out of the exempt surplus of a foreign affiliate which is a resident of the United States.”).
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with foreign countries currently amount to an exemption on 90% of all
repatriated profits.120 The Canadian government is planning an overhaul of its system with a possible result of the complete exemption of
foreign profits from taxation.121 A recent government-appointed advisory board has recommended that the Canadian government
“[b]roaden the existing exemption system to cover all foreign active
business income earned by foreign affiliates.”122
Even considering the current system of taxation, there are major
advantages to the Canadian model in that taxes on dividends received
from foreign corporations controlled by Canadian citizens (including
corporations) are reduced, provided there is a treaty with the applicable
country.123 If Canada completes its overhaul, it will have an increased
advantage over the U.S. system, which will result in less investment in
the U.S. and greater disincentive for controlled foreign subsidiaries to
repatriate their earnings to the U.S.124
III. Analysis
A. Going Forward
Section 965 did not spur American job creation as Congress intended in enacting it.125 Instead of investing in the prescribed areas
120 See Weiner, supra note 755, at 284. The Canadian tax code states:
“tax-exempt income” means income of a taxpayer from a source in a country
in respect of which
(a) the taxpayer is, because of a tax treaty with that country, entitled to an exemption from all income or profits taxes, imposed in that country, to which
the treaty applies, and
(b) no income or profits tax to which the treaty does not apply is imposed in
any country other than Canada;
I.T.A., ch. 1, pt. I, § 126(7).
121 See Weiner, supra note 75, at 284.
122 Nathan Boidman, Reforming Canada’s International Tax Regime: Final Recommendations, Part 2, 53 Tax Notes Int’l 345, 359 (2009).
123 See I.T.A., § 91(5).
124 See Weiner, supra note 75, at 290 (quoting Michael Mundaca, Deputy Assistant Treasury Sec’y for Int’l Tax Affairs, Address at the George Washington University/IRS International Tax Conference (Dec. 8, 2008)) (“Our international tax system is out of step now.
While other countries have been cutting their corporate tax rates, the United States has
stood still.”).
125 See Lisa M. Nadal, Repatriation Gluttony—Was It Worth It?, 119 Tax Notes 1228, 1230
(2008).
Pfizer, for example, which took advantage of the DRD and repatriated the
largest amount (around $ 37 billion), started a number of layoffs in its U.S.
workforce (around 3,500 jobs) and closed U.S. factories in 2005. Ford Motor
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listed in the DRIP requirement, companies shifted around their new
capital in order to fund share repurchases.126 Some companies even cut
jobs in the United States after repatriating billions in cash dividends.127
American workers are left wondering where the DRIP requirement of
reinvestment has gone and what has happened to their jobs.
It is enlightening to learn what types of companies decided to take
advantage of the tax break provided by section 965.128 According to the
IRS’s Statistics of Income Bulletin, the two types of companies that benefited most from the holiday were pharmaceutical and computer/ electronics companies.129 These two types of companies accounted for about
50% of the total repatriated income qualifying under the requirements
of section 965.130 Additionally, one particular company, Pfizer, accounted
for 10% of the total repatriated earnings itself.131 Other companies like
Ford and Eli-Lilly repatriated large amounts and then cut jobs while using their money for share buybacks.132
While it is true that the steeply reduced tax revenues from repatriated earnings are better than nothing, the gift of a tax holiday to corporations for avoiding their taxes is not a solution.133 Nevertheless, this
attempt by Congress to break into offshore tax strongholds was widely
criticized as too much on one hand and not enough on the other.134
There has been a significant amount of debate as to whether the United
Co., which also took advantage of the DRD and repatriated around $ 850 million, started its layoff of around 10,000 U.S. workers in 2005. Merck also announced layoffs of 7,000 workers in 2005 and repatriated $ 15.9 billion. Other
multinationals that repatriated under section 965 and also cut jobs include
Motorola, Procter & Gamble, PepsiCo, and Honeywell International.
Id.
126 See Repatriation Aid, supra note 7, at 277.
127 See Nadal, supra note 125, at 1230.
128 See Clemons & Kinney, supra note 100, at 762 (showing the breakdown of repatriating companies by industry).
129 See Melissa Redmiles, The One-Time Received Dividend Deduction, 27 IRS Stats. Income
Bull., No. 4, 102, 104 (2008) (showing that pharmaceutical companies accounted for 31.6%
of total repatriated dividends qualifying for the holiday and that computer/electronics companies accounted for 18.4% of the total repatriated dividends qualifying for the holiday).
130 See id. (illustrating in Figure A, column 6 that “computer and electronic equipment” and “pharmaceutical and medicine” companies repatriated 18.4% and 31.6%, respectively).
131 Multinationals Accumulate, supra note 6, at 376, 379 (demonstrating that Pfizer repatriated $37 billion of the total $362 billion repatriated under the Jobs Act).
132 See id.; Clemons & Kinney, supra note 100, at 760; Nadal, supra note 101, at 1230.
133 See Multinationals Accumulate, supra note 6, at 376.
134 Compare Desai & Hines, supra note 13, at 957 (arguing for a permanent tax decrease
or elimination), with Multinationals Accumulate, supra note 6, at 376 (arguing against another tax holiday and for more effective taxation).
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States should be attempting to tax these foreign corporations at all.135
Some argue that an effective tax on these revenue streams would give
the U.S. Treasury a meaningful boost of income, which could then be
used to jumpstart the economy through government stimulus legislation.136 Others contend that such a tax may also impede the competitiveness of U.S.-based companies, further harming the domestic economy.137
B. The Pro-Reenactment Argument
A number of tax writers maintain a much more positive story
about the effects of 2004’s American Jobs Creation Act, specifically in
reference to section 965.138 They argue that the title of the act was a red
herring and distracts from a more objective view of the substantial benefits of the act.139 Writers such as Joann M. Weiner of Tax Notes International view the repatriation tax holiday through the lens of previous
experience and see a net gain overall instead of focusing solely on the
act’s title.140
Looking at the amount of repatriation that would have occurred if
the American Jobs Creation Act had not been passed versus the
amount that subsequently did occur makes the picture look a little less
grim.141 Instead of viewing the results as $128 billion in taxes that should
have been raised, but only $16 billion actually raised, the act should be
evaluated considering that $16 billion in income came into the U.S.
Treasury as opposed to $0 in income.142 From this perspective, it seems
135 Compare Repatriation Aid, supra 7, at 281 (stating that repeated tax holidays would
increase profit-shifting to offshore subsidiaries, moving more investment dollars outside
the U.S.), with Weiner, supra note 75, at 286 (stating that the current system of taxation
actively discourages corporations from bringing income back into the U.S., which would
be at least temporarily relieved by another tax holiday).
136 See Repatriation Aid, supra note 7, at 276.
137 See Michael C. Durst, International Tax Reform and a Corporate Rate Cut for Stimulus, Efficiency, and Fairness, 53 Tax Notes Int’l 313, 313 (2009) (detailing how the high rate of
tax in the U.S. coupled with taxation abroad makes U.S. companies less competitive than
their foreign counterparts).
138 See Allen Sinai, Special Report: Macroeconomic Effects of a Reduction in the Effective Tax Rate
on Repatriated Foreign Subsidiary Earnings in a Credit- and Liquidity-Constrained Environment, (Am.
Council for Capital Formation, Wash., D.C.), Dec. 2008, available at http://www.accf.org/
publications.php?pubID=113; Weiner, supra note 75, at 283–84.
139 See Weiner, supra note 75, at 286 (“To be blunt, creating jobs in the United States
was not a requirement of the Jobs Act.”).
140 See id. at 283–84.
141 See id. at 283.
142 See id.
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much stranger for there to be as much argument against such a measure.143
Opponents of a reenactment of section 965 focus too much on the
name of the act and not enough on the actual effects.144 There has been
much wailing and gnashing of teeth about how companies did not follow the DRIP requirements but rather took their money and did what
they wanted with it.145 From a corporation’s perspective, however, it followed the instructions and requirements of section 965 to the very letter
and used its tax savings to solidify its financial position.146 Section 965
did not categorically ban any type of spending because Congress knew it
could not be the judge of what was best for any individual company, especially with legislation as sweeping as the American Jobs Creation
Act.147
Because banks have become more reluctant to lend credit during
this recession, it makes sense for companies to utilize their own cash
invested abroad rather than borrow from creditors domestically.148 It is
inherently cheaper for corporations to use money they already have
rather than pay someone else to borrow, which is a major principle bolstering the pro-reenactment argument.149 Since companies are in dire
financial straits and are trying to stem the freefall of their stock, they
should be able to use their money any way they see fit.150
It is certainly not coincidental that the only one of the Big Three
U.S. automakers not to request bailout money, Ford, took major advan-
143 See id.
144 See id. at 286.
145 See Repatriation Aid, supra note 7, at 277.
146 See Weiner, supra note 75, at 286.
Finally, it appears that one concern with the temporary dividends received deduction is not that firms failed to use the funds as allowed, but that the bill allowed a far wider use of funds than understood. . . . The law allowed taxpayers
to undertake any kind of expenditure that contributed to financial stabilization
as long as, in the executives’ business judgment, those expenditures contributed
to their ability to retain and create jobs in the United States.
Id.
147 See I.R.S. Notice 2005-10, 2005-1 C.B. 474, § 5.01 (Feb. 7, 2005) (noting that “th[e]
list of permitted investments is not an exclusive list, [and therefore] other investments in
the United States made pursuant to a domestic reinvestment plan may also be permitted
investments”).
148 See Weiner, supra note 75, at 287.
149 See id.
150 See id.
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tage of the section 965 tax holiday.151 Ford was then able to use that
money to invest in its domestic operations and foreign subsidiaries, allowing it to continue the fight for survival.152 The fact that the company
cut jobs is not necessarily a product of poor spending of its tax savings,
given that it is entirely possible that even more jobs would have been
cut otherwise.153
Indeed, the only major change that should be made to section 965
prior to reenactment is a complete elimination of the DRIP requirement.154 The results of 2004 verify this conclusion, noting that the requirement was ineffective and that companies are in the best position
to assess their financial situation and spend their tax savings accordingly.155 Moreover, the reenactment of the tax holiday should herald a
redevelopment of the international corporate taxation system in the
United States.156 Congress should enact a reduced level of taxation
more commensurate with other industrialized nations, eliminate the
foreign earned income tax, and close the loopholes, collectively allowing for more effective enforcement of existing taxation principles.157
C. The Anti-Reenactment Argument
Other tax scholars have taken the questionably extreme position
that section 965 was an abject failure and that the only worse course of
action would be to reenact the legislation to repeat the process.158
These writers argue that the title of the act, the American Jobs Creation
Act, was wholly instructive in how to judge the results of all portions of
the act, including those of section 965 repatriations.159 Writers like Tax
Notes International’s Lee A. Sheppard and Martin A. Sullivan view the
151 See id. at 284; Bill Vlasic, Major Issue in Big 3 Is Financial Cost, N.Y. Times, Dec. 8, 2008,
at B1 (discussing the “Big Three” as General Motors, Chrysler, and Ford).
152 See Weiner, supra note 75, at 287–88.
153 See Detroit Three Workforce Down Nearly 50 Percent, Left Lane News, http://www.left
lanenews.com/detroit-three-workforce-down-nearly-50-percent.html (last visited Mar. 23,
2010).
154 See Weiner, supra note 75, at 287–88.
155 See id. at 286.
156 See Nadal, supra note 101, at 1230–31.
157 See Weiner, supra note 75, at 290–91.
158 See Jessica C. Kornberg, Section 965: A Traditional Corporate Tax Policy Evaluation 19–20
(The Berkeley Elec. Press (bepress), Working Paper No. 1937, 2007), available at http://law.
epress.com/expresso/eps/1937; Multinationals Repatriate, supra note 7, at 276.
159 See Kornberg, supra note 158, at 15 (“Now that the monetary effects of § 965 are recorded, it is appropriate to evaluate them against the early criticisms of the deduction. The
predictions that § 965 would not fulfill its stated purpose, appear to have come to fruition.”); Repatriation Aid, supra note 7, at 277.
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125
effects of section 965 through the frame of the American Jobs Creation
Act.160 From their viewpoint, the unalienable purpose of the legislation
was to create additional jobs for Americans or at least maintain the current number of jobs, ignoring the dire economic environment.161
When examining the effects of the section 965 repatriations, these
scholars examine strictly how the repatriated dividends were used.162
Unsurprisingly, they are disappointed when they find that the vast majority of multinational companies who took advantage of the tax holiday effectively used the cash for purposes other than employee wages
and research and development.163 Because the dividend cash was fungible, the DRIP requirements were neatly skirted by the corporations,
and thus, they argue, the legislation failed.164
They further contend that companies neither were then, nor are
now, in need of the additional liquidity provided by section 965 and,
rather, have a problem with excessive debt.165 Such a debt problem, or
debt overhang, is the actual key to the financial crisis and the very reason why access to cash stored in foreign subsidiaries is not the solution,
nor is it even particularly helpful.166
As a response to this debt overhang problem in the private sector,
the public sector has purchased that debt and, additionally, has allowed
these companies to gain access to foreign-held capital at bargainbasement cost.167 The idea is that companies will be able to use their
newfound liquidity to inflate their own stock prices through stock buybacks, which in turn will create a more stable market and fuel demand.168
The problem with this simplistic approach, the anti-reenactment
camp contends, is that it incentivizes the very behavior it purports to
prevent: the hoarding of income abroad in anticipation of the next holiday.169 Some contend that the solution involves directly dealing with
160 See Repatriation Aid, supra note 7, at 277.
161 See id.
162 See Multinationals Accumulate, supra note 6, at 377–78.
163 See Repatriation Aid, supra note 7, at 277.
164 See id. at 277, 279.
165 See id. at 275–76.
166 See id.
167 See id. at 276; supra notes 88–90 and accompanying text.
168 See Repatriation Aid, supra note 7, at 276.
169 See Nadal, supra note 101, at 1231 (“The bottom line is that the entire system needs
an overhaul, and the [dividends received deduction] is just an example of a quick fix disguised as something else because the task at hand is monumental.”); Repatriation Aid, supra
note 7, at 281.
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the debt by minimizing it or writing it down.170 They admit that such an
approach will hurt and likely anger the creditors of these toxic assets,
but insist that it is a far superior way of handling the crisis.171
They conclude that a reenactment of section 965 will again allow
large multinational companies to repatriate assets at extremely low
prices, but the influx of cash into their coffers will only falsely inflate
their stock prices with share buybacks, which would result in a set of
circumstances uncomfortably similar to those immediately preceding
the present credit crisis.172 Since the original enactment of section 965
in 2004, multinational companies have had increased rates of profitshifting to controlled foreign subsidiaries.173 These increases have been
particularly evident in companies with considerable amounts of intangible assets, such as pharmaceutical companies or bank-holding companies, which were big players in the initial repatriation tax holiday.174
A second wave of repatriation will disincentivize any further repatriation during periods of normal taxation, encouraging companies to lie
in wait for the next tax holiday and also shift lucrative intangible assets
to subsidiaries in low tax-base countries.175
These writers would argue that since the vast majority of companies who took advantage of section 965 did not create jobs in the United States and a reenactment to increase liquidity would not help the
economic crisis, Congress was correct in rejecting the reenactment of
section 965.176 They maintain that reenactment of section 965 would
distract from the problems of the international taxation system in the
United States.177 The writers believe that the tax system should be overhauled in order to end deferral and capture the taxes on profits of foreign subsidiaries more effectively.178
170 See Repatriation Aid, supra note 7, at 275.
171 See id. at 275, 276.
172 See Nadal, supra note 101, at 1230. Compare Repatriation Aid, supra note 7, at 276
(stating that companies used their repatriated dividends to repurchase shares and inflate
stock prices), with George Cooper, Op-Ed., When Will the Recession Be Over?: An Ordinary
Crisis, N.Y. Times, Mar. 1, 2009, at 12 (stating that the credit crisis was preceded by asset
inflation and credit creation).
173 See Multinationals Accumulate, supra note 6, at 376–77.
174 See id. at 376.
175 See id. at 377–78.
176 See Repatriation Aid, supra note 7, at 276–77.
177 See id. at 283.
178 See id.
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D. Canada Offers Guidance
As both the anti-reenactment and pro-reenactment camps agree,
the international corporate taxation system in the United States needs
serious reform.179 As noted above, Canada has a system of international
corporate taxation closely resembling that of the United States.180 Canada is currently overhauling its tax system in order to tax international
subsidiaries more effectively while encouraging investment back into
their domestic operations.181 As one of the United States’ two bordering countries and the country’s top trade partner, Canada’s experiment
with international corporate tax reform can prove especially useful as
the United States seeks to improve its system.182
The Canadian system currently exempts from taxation any income
derived from foreign operations in countries with which there is an information-sharing treaty.183 The Canadian system has an overall exemption of over 90% for foreign-earned corporate income; thus, less than
10% of all income from foreign subsidiaries is derived from countries
with which Canada has not developed a treaty.184 An advisory panel has
recommended a complete exemption for all foreign-earned corporate
income, not limited to treaty countries.185 Such a system, if implemented in the United States in combination with a similarly lower corporate tax rate, could make investment in the United States much
more lucrative.186
The United States should adopt several features of the Canadian
international corporate tax reform.187 First, the need for overhaul of the
system of United States taxation on foreign-earned corporate income is
an immediate one, as shown by Canada’s action.188 Furthermore, a lower base tax is called for if the United States is to compete with other in179 See id.; Weiner, supra note 75, at 290–91.
180 See supra Part II.C.
181 See Boidman, supra note 122, at 359.
182 See Foreign Trade Department U.S. Census Bureau, Top Trading Partners—
Total Trade, Exports, Imports (2008), available at http://www.census.gov/foreign-trade/
statistics/highlights/top/top0812yr.html.
183 See, e.g., U.S.-Canada Tax Treaty art. XXIV, § 2(b).
184 See Weiner, supra note 75, at 284.
185 See id.
186 See U.S. Dep’t of the Treasury, Background Paper on Treasury Conference on
Business Taxation and Global Competitiveness 1, 35 ( Jul. 23, 2007) (unpublished research
paper), available at http://www.ustreas.gov/press/releases/reports/07230%20r.pdf) (indicating the effective 2005 U.S. corporate tax rate of 39% is higher than any European Union member in that year and much higher than the average of 27.3%).
187 See Weiner, supra note 75, at 284, 289–91.
188 See Boidman, supra note 122, at 353–54.
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dustrialized nations in attracting foreign investment.189 Corporations
will not repatriate earnings if the cost of doing business is radically
greater in the United States than other desirable countries.190 Third, a
major exemption for the bulk of foreign-earned corporate profits is necessary to stay relevant in the business world.191 The United States and
Canada are two of the last industrialized countries to attempt worldwide
taxation and Canada is prudently in the process of abandoning it after
finding it uncompetitive and unwieldy.192 Finally, tighter enforcement of
the tax provisions, coupled with closing loopholes, will give greater efficacy to and respect for the United States taxation system.193
Conclusion
The United States Congress should learn from both the domestic
debate and the Canadian experiment regarding international corporate tax reform, since a change in tax policy could bring a meaningful
stream of revenue to our country in its time of crisis. It is better for the
United States to abandon taxation on foreign subsidiaries than to continue the farce of stated taxation that does not actually occur. With the
advent of the global economic crisis, the time is ideal for an overhaul of
our taxation system to close loopholes, encourage growth, and spur the
global economy without hollow threats of impossible taxation.
Section 965 was helpful as a herald for change in the taxation of
international controlled corporations, but that call was ignored in
2004. Now with the economic crisis in full force, the United States
Congress has a duty to reevaluate the international corporate taxation
system, beginning with a reintroduction of section 965. The financial
gains from repatriations will then fuel a more complete overhaul of the
system, closing loopholes which allow transfer of assets abroad and eliminating taxes that other developed nations have abandoned. These
steps will ensure a more effective taxation system and more robust
competition by U.S.-based multinationals.
189 See U.S. Dep’t of the Treasury, supra 186, at 35.
190 See Repatriation Aid, supra note 7, at 280, 283.
191 See U.S. Dep’t of the Treasury, supra note 186, at 35.
192 See Weiner, supra note 75, at 289–91; Repatriation Aid, supra note 7, at 282–83.
193 See Repatriation Aid, supra note 7, at 280, 282, 283.
HOW TO CUT THE CHEESE:
HOMONYMOUS NAMES OF REGISTERED
GEOGRAPHIC INDICATORS OF
FOODSTUFFS IN REGULATION 510/2006
Kaiko Shimura*
Abstract: Since the 15th century, European states have sought to protect
certain foodstuffs originating from a designated geographic location.
When multilateral and bilateral agreements failed to establish sufficient
protection amongst the European Community member states, the European Community sought to establish uniform standards of protection by
adopting Regulation 2081/92 in 1992. While an important step in the
harmonization of varying European state practices, Regulation 2081/92
failed to address the problem of names that are homonymous to registered, protected names. In 2006, the European Community attempted to
address this issue in Regulation 510/2006. This Note explores the issue of
“homonymous names” and how the European Court of Justice has struggled to define the term. The author concludes that Regulation 510/2006
fails to provide a clear standard regarding homonymous names and
should be amended to avoid the very problem the European Community
sought to address in enacting uniform standards of protection: varying
state practices which result in increased litigation.
Introduction
An essential ingredient in Italian cuisine, Parmigiano Reggiano
has become a common household staple in cupboards across the
world.1 Transcending its Italian roots, the hard, often pre-grated cheese
can be found in distinctive green cans, labeled “Parmesan cheese.”2
The real Parmigiano Reggiano, however, originates exclusively from its
* Kaiko Shimura is the Solicitations & Symposium Editor of the Boston College International & Comparative Law Review. She would like to thank her family and friends for their
support, in particular Matthew Jerome Mauntel and Michael Spriggs.
1 See James Cox, What’s in a Name?, USA Today, Sept. 9, 2003, http://www.usatoday.
com/money/economy/trade/2003-09-09-names_x.htm.
2 See id.
129
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mother country of Italy.3 To label a cheese “Parmigiano Reggiano” is
no small feat—it must be produced from milk originating in the Italian
provinces of Parma, Reggio Emilia, Modena, or Bologna and the fermenting process must also be conducted in those same provinces.4 The
large wheels of cheese, made only with Italian milk, rennet, and heat,
are aged for eighteen to twenty-four months before inspection to ensure that the quality of the cheese is consistent with Protected Designation of Origin (PDO) requirements.5
PDO is a type of geographic indicator regulated under European
Community Council Regulation 2081/92.6 This regulation was adopted
in 1992 after European Community (EC) member states realized the
need for a uniform registration system of “agricultural products or
foodstuffs which have an identifiable geographic origin.”7 Regulation
2081/92 served not only to define PDOs but also to dictate procedures
through which EC members could take steps to enforce PDOs against
other member states.8
European states have cherished histories with certain foodstuffs,
and Regulation 2081/92 was an important step toward harmonizing
recognition of such foodstuffs within the EC.9 In 2006, however, the EC
repealed Regulation 2081/92 and replaced it with EC Council Regulation 510/2006.10 While the majority of Regulation 510/2006 remains
true to the preceding Regulation 2081/92, the new regulation added a
subsection to Article 3 regarding names that are deemed “homonymous” and therefore cannot be protected under the regulation.11 The
new subsection seeks to provide guidelines regarding when such names
can be registered.12
3 Consorzio del Formaggio Parmigiano-Reggiano, Place of Origin, http://www.parmigiano-reggiano.it/en/come/zona_origine_parmigiano_reggiano.aspx (last visited Mar.
23, 2010).
4 Id.
5 Consorzio del Formaggio Parmigiano-Reggiano, The History of Parmigiano-Reggiano DOP,
http://www.parmigiano-reggiano.it/en/made/history/default.aspx (last visited Mar. 23,
2010); Consorzio del Formaggio Parmigiano-Reggiano, The Making of Parmigiano-Reggiano
Cheese, http://www.parmigiano-reggiano.it/en/made/parmigiano_reggiano_cheese/default.
aspx (last visited Mar. 23, 2010).
6 Council Regulation 2081/92, art. 2, 1992 O.J. (L 208) 2 (EC).
7 See id. pmbl.
8 Id. arts. 1, 13.
9 Id. pmbl.
10 Council Regulation 510/2006, art. 19, 2006 O.J. (L 93) 21 (EC).
11 Id. art. 3.
12 Id.
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Registered Geographic Indicators, Foodstuffs & Regulation 510/2006
131
This Note examines the approach taken by the European Court of
Justice (ECJ) in interpreting Article 3 of Regulation 2081/92 (Article
3). Part I provides a definition of the term “geographic indicators” as
well as a historical background of how they have been treated in the
EC. Part II addresses recent case law concerning Article 3 and how the
ECJ grappled with how to define “generic names” and other names that
conflict with registered ones, as well as what kind of test should apply to
those definitions. Part III provides an analysis of the subsection addressing homonymous names in the new Regulation 510/2006 and presents
an argument that the regulation should be amended to clarify the definition of a “homonymous name” and to identify the appropriate test to
use when registering such a name.
I. Background
A. What Is a “Geographic Indicator”?
“Geographic indicators” is a modern term encompassing a rather
broad category of terms historically used by EC member states to refer to
labels on products specifying the products’ particular origin.13 The concept originated in 15th century France when King Charles VI granted a
protected status to the infamous Roquefort cheese and the caves in
which the cheese is still produced.14
Throughout the following five centuries, EC member states further
developed this concept of protection for geographic indicators.15 In
France, for example, appellations d’origine signified a particular geographic origins from which products derived their distinctive characteristics and constituted implicit seals of quality.16 In contrast, indications de
provenance composed a broader category of labels which imparted to
the consumer the geographic origin of the product’s “location of production, manufacture, or extraction.”17 Compounding the problem of
13 See id. art. 2; Molly Torsen, Apples and Oranges: French and American Models of Geographic Indications Policies Demonstrate an International Lack of Consensus, 95 Trademark Rep.
1415, 1419–22 (2005).
14 Christina White, Something Is Rotten in Roquefort, Businessweek, Dec. 31, 2001,
http://www.businessweek.com/magazine/content/01_53/b3764082.htm.
15 See Steven A. Bowers, Location, Location, Location: The Case Against Extending Geographical Indication Protection Under the TRIPS Agreement, 31 AIPLA Q.J. 129, 137–43 (2003).
16 Lori E. Simon, Appellations of Origin: The Continuing Controversy, 5 Nw. J. Int’l L. &
Bus. 132, 139 (1983).
17 Id. at 132, 140.
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these differing terms was the fact that different EC member states had
different standards for their respective geographic indicators.18
When bilateral and multilateral agreements did not sufficiently address geographic indicators of foodstuffs, the EC promulgated Regulation 2081/92 which served to define the terms “designations of origin”
and “geographic indicators.”19 Much like the difference between the
French appellations d’origine and indications de provenance, the term “designations of origin” includes the requirement of “inherent natural and
human factors,” whereas the term “geographic indicators” does not.20
Though the EC is clear in drawing a line between the two terms, this
Note will use the term “geographic indicators” to encompass both protected “designations of origin” (PDOs) and the broader “geographic
indicators.”21
B. Early Legislation of Geographic Indicators
The first modern law regulating geographic indicators of foodstuffs
was passed in France.22 The Law of May 6, 1919, formally recognized
appellations d’origine and further allowed the courts jurisdiction over issues arising under the geographic indicator.23 While at first limited to
wines and spirits, the law was later expanded to include other agricultural products such as cheese.24 The success of the system instituted by
the French—culminating in 1935 with the establishment of the Institut
National des Appellations d’Origine, which serves to regulate and register
protected foodstuffs25—propelled other European states to develop similar systems of protection for their own respective foodstuffs.26
18 See Lilian V. Faulhaber, Note, Cured Meat and Idaho Potatoes: A Comparative Analysis of
European and American Protection and Enforcement of Geographic Indications of Foodstuffs, 11
Colum. J. Eur. L. 623, 625 (2005).
19 Council Regulation 2081/92, art. 2, 1992 O.J. (L 208) 2 (EC); see Faulhaber, supra
note 18, at 625.
20 Council Regulation 2081/92, art. 2(2)(a), 1992 O.J. (L 208) 2 (EC).
21 See generally id. Both “designations of origin” and “geographical indications” are used
together throughout the regulation. Id.
22 Introduction to Intellectual Property Theory and Practice 234 (World Intellectual Property Organization ed., 1997) [hereinafter Intellectual Property].
23 Id.
24 Id.
25 Bernard O’Connor, The Law of Geographical Indications 167 (2004); Torsen,
supra note 13, at 1426. An institution overseeing production requirements of appellations d’
origine was established in 1935; in 1947, it became the Institut National des Appellations
d’Origine. Id.
26 Intellectual Property, supra note 22, at 234.
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Yet, the resulting diversity in regulation of geographic indicators
amongst EC member states posed numerous problems of enforcement.27 Without an EC-wide regulating authority, member states ensured protection of their registered geographic indicators through bilateral or multilateral agreements.28 These agreements either established uniform procedures between the parties or consisted of specific
lists of geographic indications which each party agreed to protect.29
C. European Community Council Regulation 2081/92
Despite bilateral and multilateral agreements, the level of protection
granted to geographic indicators varied between EC member states.30 In
an attempt to remedy this situation, and motivated in part by the desire
to protect small producers as well as consumer interests, the EC signed
Regulation 2081/92 into law on July 14, 1992.31 Regulation 2081/92 effectively created a system of registration and enforcement of protected
agricultural products, which applied to all EC member states.32
In addition to providing “product specification” to qualify for protected status, the product was only required to be registered by a group
or a natural or legal person who produces or processes that particular
product.33 The registration procedure also required that the application
be sent first to the member state.34 The member state, upon its approval
of the application, forwards it to the Commission of the European
Communities (Commission), which would make a decision whether the
product could be registered within six months.35 If the Commission
then approved and registered the product, it would publish that information in the Official Journal of the European Communities.36 Article 7
27 See id. at 231.
28 See Bowers, supra note 15, at 138–43.
29 Council for Trade-Related Aspects of Intellectual Property Rights, Note by the Secretariat: Overview of Existing International Notification and Registration Systems for Geographical
Indications Relating to Wines and Spirits, IP/C/W/85, 6 (Nov. 17, 1997) [hereinafter TRIPS
Council].
30 Id.
31 Council Regulation 2081/92, pmbl., 1992 O.J. (L 208) 1 (EC); Stacy D. Goldberg,
Comment, Who Will Raise the White Flag? The Battle Between the United States and the European
Union over the Protection of Geographical Indications, 22 U. Pa. J. Int’l Econ. L. 107, 143–44
(2001).
32 See Council Regulation 2081/92, art. 2(1), 1992 O.J. (L 208) 2 (EC). While Regulation 2081/92 covers agricultural products, wines and spirits are expressly excluded. Id.
33 Id. arts. 4, 5.
34 Id. art. 5.
35 Id. arts. 5, 6.
36 Id. art. 6.
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also provided for member states to object to the registration within six
months of its publication.37
While names that have become generic over time—examples include Brie, Camembert, and Cheddar—cannot be registered, successful
registration with the Commission bestows upon products significant
economic advantages.38 No other product can be labeled with that particular geographic indication if it is likely to mislead consumers or serve
to “exploit[] the reputation of the protected name.”39 In the event that
a similar product exists which uses the protected name, member states
are permitted to authorize use of the protected name for a period of
not more than five years, provided the similar product (a) had been
using that name for at least five years prior to the entry into force of
Regulation 2081/92, and (b) had clearly indicated the true origin of
the product.40
In establishing a uniform system of registration and protection,
Regulation 2081/92 produced two important effects.41 First, by harmonizing the varying levels of protection afforded to geographic indicators in different member states, the regulation both incorporated existing national registration systems and eliminated those which were not
compatible with it.42 Second, by allowing only groups of producers or
processors working with the product in question to register a geographic indicator, the regulation essentially allowed the formation of
collective monopolies.43 So long as the group of producers could satisfy
the requirements of the regulation, no other producer could market its
goods under the protected geographic indicator.44
D. Regulation 510/2006
On March 20, 2006, the EC Council passed Regulation 510/2006
which expressly repealed Regulation 2081/92.45 The meaning and
function of the new regulation, which still covers the protection of geographic indicators of agricultural products, remains largely unchanged
37 Id. art. 7.
38 Faulhaber, supra note 18, at 633; see Council Regulation 2081/92, art. 13, 1992 O.J.
(L 208) 6 (EC).
39 Council Regulation 2081/92, art. 13(1), 1992 O.J. (L 208) 6 (EC).
40 Id. art. 13(2).
41 See id.
42 Faulhaber, supra note 18, at 633.
43Id. at 633; see Council Regulation 2081/92, art. 5, 1992 O.J. (L 208) 3–4 (EC).
44 See Council Regulation 2081/92, art. 5, 1992 O.J. (L 208) 3–4 (EC).
45 Council Regulation 510/2006, art. 19, 2006 O.J. (L 93) 21 (EC).
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from that of its predecessor.46 Yet, one change, while small, reveals the
ECJ’s recognition of the issues presented by homonymous names.47
Article 3 of Regulation 510/2006 includes a subsection which specifically addresses homonymous names, an issue that was never addressed in the previous Regulation 2081/92.48 The new regulation provides guidelines that the Commission must consider when producers
seek to register “a name wholly or partially homonymous with that of a
name already registered.”49
The Commission must consider three principal factors in determining whether to approve product registration. First, the homonymous name cannot be registered if it “misleads the consumer into believing that products come from another territory . . . even if the name
is accurate as far as the actual territory, region, or place of origin of the
agricultural products or foodstuffs in question.”50 Second, there is a
need for a “sufficient distinction in practice between the homonym . . .
and the name already registered.”51 This second requirement is somewhat qualified in that it also considers the “need to treat the producers
concerned in an equitable manner and not to mislead the consumer.”52
Finally, a name cannot be registered if, “in the light of a trademark’s
reputation and renown and the length of time it has been used, registration is liable to mislead the consumer as to the true identity of the
product.”53
Although the inclusion of this new subsection is helpful in guiding
future ECJ decisions, examination of previous case law under Regulation 2081/92 suggests the need for a more clearly defined standard.54
Without discretely defined standards, the debate over the gray area of
46 See generally id. (Regulation 510/2006, while very similar to the repealed Regulation
2081/92, includes more detailed subsections as well as the inclusion of a new subsection
under Article 3).
47 See id. art. 3(3).
48 Id.; see Council Regulation 2081/92, art. 3, 1992 O.J. (L 208) 2 (EC). Regulation
2081/92 does not include this subsection on homonymous names. Id.
49 Council Regulation 510/2006, art. 3(3), 2006 O.J. (L 93) 14 (EC).
50 Id. art. 3(3)(a).
51 Id. art. 3(3)(b).
52 Id.
53 Id. art. 3(4).
54 See Case C-465/02, Fed. Republic of Germany v. Comm’n, 2005 E.C.R. I-9115,
¶¶ 84–94 [hereinafter Feta II]; Case C-289/96, Kingdom of Denmark v. Comm’n, 1999
E.C.R. I-1541, ¶¶ 84–88 [hereinafter Feta I]; Case C-317/95, Canadane Cheese Trading
AMBA & Adelfi G. Kouri Anonymos Emoriki Kai Viomichaniki Etaireia v. Hellenic Republic, 1997 E.C.R. I-4681, CELEX No. 695C0317, ¶ 29 (opinion of Advocate General RuizJarabo Colomer) [hereinafter Colomer Opinion in Canadane].
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homonymous names will continue, resulting in more litigation and
more confusion.55
II. Discussion
A. Geographic Indicators and the Free Movement of Goods in the EC
Issues surrounding homonymous names are significant precisely
because a finding that a registered name is, in fact, generic has farreaching consequences.56 As one of the crucial policies of the EC has
been that of the free movement of goods, geographic indicators of
food—in essentially setting up monopolies for those holding rights to
use a geographic indicator—are the exception to the general rule.57
Articles 30 and 34 of the EC Treaty explicitly prohibit “quantitative
restrictions” between member states and impose a duty to abolish such
restrictions.58 Although no mention is made of geographic indicators of
foodstuffs, such protected names tend to fall under one of the exceptions in Article 36, either that of public policy or of the protection of
industrial and commercial property.59 In addition, the ECJ has held
55 See Feta II, 2005 E.C.R. I-9115, ¶¶ 84–89; Feta I, 1999 E.C.R. I-1541, ¶¶ 64, 70, 84–88.
The lack of clarity regarding what factors must be considered to identify a name as generic
led to repeated litigation in which the name “Feta” was challenged. Id.
56 See Colomer Opinion in Canadane, 1997 E.C.R. I-4681, ¶ 29.
57 See Treaty Establishing the European Community, Nov. 10, 1997, 1997 O.J. (C 340)
30, 34 [hereinafter EC Treaty]; see also Kathleen R. Browne, Comment, Council Decision
Calling on EC Member States to Ratify International Conventions on Copyright, 16 B.C. Int’l &
Comp. L. Rev. 127, 135–38 (1993) (discussing differences in national copyright laws as
presenting obstacles to free movement of goods in the European Community).
58 EC Treaty, supra note 47, art. 30 (stating that “quantitative restrictions on imports
and all measures having equivalent effect shall, without prejudice to the following provisions, be prohibited between Member states”). Article 34 states:
1. Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member states. 2. Member states, shall, by
the end of the first stage at the latest, abolish all quantitative restrictions on
exports and any measures having equivalent effect which are in existence
when this Treaty enters into force.
Id. art. 34.
59 See id. art. 36. Article 36 states that:
The provisions of Arts. 30 to 34 shall not preclude prohibitions or restrictions
on imports, exports or goods in transit justified on grounds of public morality,
public policy, or public security; the protection of health and life of humans, animals or plants, the protection of national treasures possessing artistic, historic
or archaeological value, or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of
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that Articles 30 and 34 of the EC Treaty do not preclude application of
bilateral agreements between member states concerning the protection
of geographic indicators “provided that the protected names have not
become generic in the country of origin.”60 Neither do the articles
mentioned above prevent member states from taking steps to protect
registered names under Regulation 2081/92.61
Such protection, however, is not extended to names that are
deemed “generic.”62 Ironically, the names of some of the most famous
foodstuffs are considered generic, thus preventing their registration.63
This peculiar outcome forces producers who produce the protected
product to register the product under a more specific name and simultaneously precludes them from bringing suit against producers who use
the “generic” name.64 For example, European producers are permitted
to produce and market cheese under the name “camembert” even if it
does not meet the requirements necessary to qualify for the protected
status of the “Camembert de Normandie” name.65 French cheese makers who produce the protected “Camembert de Normandie” cannot
seek protection under Community laws against producers of the generic “camembert” cheese.66
Producers using the protected name can raise the defense that
their product uses homonymous names.67 This defense has raised the
question of how to distinguish homonymous names from translations of
protected names, how much of a protected name is actually protected,
arbitrary discrimination or a disguised restriction on trade between Member
states.
Id. art. 36.
60 Case C-87/97, Consorzio per la Tutela del Formaggio Gorgonzola v. Keserei Champignon Hofmeister GmbH & Co., 1999 E.C.R. I-1301, ¶ 20 [hereinafter Gorgonzola].
61 Id.
62 See Council Regulation 510/2006, art. 3, 2006 O.J. (L 93) 14 (EC); Council Regulation 2081/92, art. 10, 1992 O.J. (L 208) 5 (EC).
63 Jim Chen, A Sober Second Look at Appellations of Origin: How the United States Will Crash
France’s Wine and Cheese Party, 5 Minn. J. Global Trade 29, 52 (1996).
64 See Council Regulation 510/2006, art. 13, 2006 O.J. (L 93) 19 (EC); Council Regulation 1107/96, annex, 1996 O.J. (L 148) 5 n.7 (EC) (stating explicitly that protection of
name “camembert” is not sought); Council Regulation 2081/92, art. 13, 1992 O.J. (L 208)
6 (EC).
65 See O’Connor, supra note 25, at 139.
66 See Council Regulation 510/2006, art. 13, 2006 O.J. (L 93) 19 (EC); Council Regulation 1107/96, annex, 1996 O.J. (L 148) 5 n.7 (EC).
67 See Council Regulation 510/2006, art. 3, 2006 O.J. (L 93) 14 (EC).
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and exactly how to weigh all the relevant factors.68 As Regulation
2081/92 failed to specifically address homonymous names, the ECJ
tended to address the issues such names presented under Article 13 regarding protection of registered names.69
Article 13 protects registered names from “misuse, imitation or
evocation even if . . . the protected name is translated or accompanied
by an expression such as ‘style,’ ‘type,’ ‘method,’ ‘as produced in,’ ‘imitation’ or similar.”70 Producers must cease use of a name that violates
this article unless they continuously used and legally marketed the
name for the five years preceding publication of the registered name.71
If producers can successfully demonstrate that they used and legally
marketed a name for five years prior to the registration of the protected
name, a transitional period of five years is permitted, during which the
name must be gradually phased out.72
B. Defining the Generic and the Homonymous: Case Law
Under Regulation 2081/92
Case law under Regulation 2081/92 illustrates both the issues presented by use of homonymous names and the deficiencies of Article 3
of Regulation 2081/92.73 In the Kingdom of Denmark v. Commission of the
European Communities (Feta I ) and Federal Republic of Germany v. Commission of the European Communities (Feta II ) cases, the ECJ struggled to articulate the factors that must be considered in determining whether a
name is generic and how those factors must be weighed.74 Criminal Proceedings against Dante Bigi (Parmesan I ) and Commission v. Federal Republic
of Germany (Parmesan II ) presented the unique problem of a homonymous name, an issue which was not mentioned in Regulation
68 See Case C-132/05, Comm’n v. Fed. Republic of Germany, 2008 E.C.R. I-00957,
¶¶ 44–48 [hereinafter Parmesan II ]; Feta II, 2005 E.C.R. I-9115, ¶¶ 84–88; Feta I, 1999
E.C.R. I-1541, ¶¶ 87–88; Council Regulation 510/2006, art. 3, 2006 O.J. (L 93) 14 (EC).
69 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 44–57; Gorgonzola, 1999 E.C.R. I-1301,
¶¶ 22–30; Council Regulation 510/2006, art. 13, 2006 O.J. (L 93) 19 (EC); Council Regulation 2081/92, arts. 3, 13, 1992 O.J. (L 208) 3, 6 (EC).
70 Council Regulation 510/2006, art. 13, 2006 O.J. (L 93) 19 (EC).
71 See id. arts. 13, 17; Council Regulation 2081/92, art. 13, 1992 O.J. (L 208) 6 (EC).
72 See Council Regulation 510/2006, arts. 13, 17, 2006 O.J. (L 93) 19, 20 (EC); Council
Regulation 2081/92, art. 13, 1992 O.J. (L 208) 6 (EC).
73 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 40–42; Feta II, 2005 E.C.R. I-9115, ¶¶ 84–94;
Feta I, 1999 E.C.R. I-1541, ¶¶ 84–88; Council Regulation 2081/92, art. 3, 1992 O.J. (L 208)
3 (EC).
74 Feta II, 2005 E.C.R. I-9115, ¶¶ 84–94; Feta I, 1999 E.C.R. I-1541, ¶¶ 84–88.
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2081/92.75 The lack of textual guidance in the regulation forced the
ECJ to stretch the meaning of Article 3 of Regulation 2081/92 to address whether the homonymous name could be deemed generic.76
1. The Feta Cases
The Feta cases illustrate the ECJ’s struggle to clarify and weigh factors relevant to determining whether a geographic indicator is generic.77 Persistent litigation amongst the parties seems to indicate that
the factors to be considered in defining “generic” are far from settled.78
The ECJ has, since Feta I, consistently held that several factors must be
taken into account when making this determination, while remaining
vague on exactly how each factor should be weighed.79
In 1999, in Feta I, Denmark, Germany, and France challenged
Greece’s registration of the name “feta,” arguing that the name could
not qualify as a protected geographic indicator under Regulation
2081/92 due to its generic character.80 The three states claimed that the
survey on which the registration was based was not an accurate reflection of Community opinion due to the fact that neither nationals of new
member states nor trade circles were included, and that it weighed the
opinion of Greek consumers more heavily than consumers in other
member states.81
The ECJ expressly held that “account must be taken of all factors.”82 Therefore, the status of the name in other member states was to
be given equal significance to the status of that name in the member
state in which the name originated, namely Greece.83 As the Commission had not adequately considered the status of the name in the other
member states, the ECJ annulled the registration of “feta” as a protected geographic indicator.84
75 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 40–49; Case C-66/00, Criminal Proceedings
Against Dante Bigi, 2002 E.C.R. I-5917, ¶ 14(1) [hereinafter Parmesan I]; Council Regulation 2081/92, art. 3, 1992 O.J. (L 208) 3 (EC).
76 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 40–49; Council Regulation 2081/92, art. 3,
1992 O.J. (L 208) 3 (EC).
77 See Feta II, 2005 E.C.R. I-9115, ¶¶ 84–94; Feta I, 1999 E.C.R. I-1541, ¶¶ 84–88; Colomer
Opinion in Canadane, 1997 E.C.R. I-4681, ¶ 29.
78 See Feta II, 2005 E.C.R. I-9115, ¶¶ 84–94; Feta I, 1999 E.C.R. I-1541, ¶¶ 84–88.
79 See Feta II, 2005 E.C.R. I-9115, ¶¶ 84–94; Feta I, 1999 E.C.R. I-1541, ¶ 88.
80 Feta I, 1999 E.C.R. I-1541, ¶¶ 49–50.
81 Id. ¶ 64.
82 Id. ¶ 88; see Colomer Opinion in Canadane, 1997 E.C.R. I-4681, ¶ 34.
83 Feta I, 1999 E.C.R. I-1541, ¶¶ 88, 96.
84 Id. ¶ 103.
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Three years later, in 2002, Germany, Denmark, and France again
challenged the subsequent registration of the name “feta” by the
Commission in Feta II.85 Again, these states argued that the name was
generic and thus could not be protected.86 While the ECJ conceded
that the existence of other producers of the cheese in question was a
relevant factor in determining if “feta” was a generic name, it held that
that fact was “only one factor of several which must be taken into account.”87 Consequently, consistent with its previous holding in Feta I,
the ECJ weighed all factors—including the status of the name in other
member states—equally.88
2. The Gorgonzola and Parmesan Cases
Unlike the Feta cases in which the registered name itself was under
dispute, the Consorzio per la Tutela del Formaggio Gorgonzola v. Keserei
Champignon Hofmeister GmbH & Co. (“Gorgonzola”) and Parmesan cases
hinged on whether the disputed name can be used legally alongside
the protected, registered name.89 The ECJ in both cases used Articles 3
and 13 of Regulation 2081/92 to assess the validity of the disputed
names and made no mention of homonymous names as Regulation
510/2006 was not yet in effect.90 The issues presented by both Gorgonzola and Parmesan, however, reveal the deficiencies of Regulation
510/2006 concerning homonymous names.91
Gorgonzola involved the question of whether the use of the name
“Cambozola” to market a cheese made in Germany impermissibly infringed upon the protected Italian name “Gorgonzola.”92 A threshold
issue concerned whether “Cambozola” qualified as a name which could
be protected under Article 13.93 The ECJ held that the disputed name
was an “evocation” of the registered name, and that it was possible “for
85 Feta II, 2005 E.C.R. I-9115, ¶ 1.
86 Id. ¶¶ 42–44.
87 Id. ¶ 84.
88 Id. ¶¶ 84–94; see Feta I, 1999 E.C.R. I-1541, ¶ 88.
89 See Parmesan II, 2008 E.C.R. I-00957, ¶ 1; Parmesan I, 2002 E.C.R. I-5917, ¶ 17; Gorgonzola, 1999 ECR I-1301, ¶ 22.
90 Parmesan II, 2008 E.C.R. I-00957, ¶¶ 29–30; Parmesan I, 2002 E.C.R. I-5917, ¶¶ 22–
34; Gorgonzola, 1999 ECR I-1301, ¶ 22–26; see Council Regulation 510/2006, art. 20, 2006
O.J. (L 93) 21 (EC).
91 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 29–30; Parmesan I, 2002 E.C.R. I-5917,
¶¶ 22–34; Gorgonzola, 1999 ECR I-1301, ¶¶ 22–26; Council Regulation 510/2006, art. 3(3),
2006 O.J. (L 93) 14 (EC).
92 See Gorgonzola, 1999 ECR I-1301, ¶ 14.
93 See id. ¶ 22.
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a protected designation to be evoked where there is no likelihood of
confusion between the products concerned and even where no Community protection extends to the parts of that designation which are
echoed in the term or terms at issue.”94
Advocate General Jacobs elaborated upon this issue in his opinion,
stating that the “evocation” standard is an objective one, which requires
“a substantial degree of phonetic similarity in the context of goods in a
similar market sector.”95 As applied to this case, Advocate General Jacobs found that this degree of phonetic similarity was satisfied as “the
final two syllables are identical, the total number of syllables is the same
and the pattern of stress in uttering the two words is very close.”96
The Gorgonzola case set the precedent for a liberal interpretation of
Article 13 regarding names that violate the section.97 It came as no surprise, then, that in 2002, Nuova Castelli SpA, an Italian cheese producer, was charged, under Italian law, with fraudulent trading for producing a dried, grated cheese called “parmesan” that did not comply
with the requirements set forth for the protected name “Parmigiano
Reggiano.”98 The issue was referred to the ECJ by the Tribunale di
Parma to settle several questions concerning the legality of a “designation which is open to confusion with the one registered.”99
Germany, one of several European governments which submitted
written observations regarding the case, argued that the name “parmesan” had become generic, so Community protection only extended to
the name “Parmigiano Reggiano” when used in its entirety.100 In rejecting this argument, the ECJ simply stated that “it is far from clear that
the designation ‘parmesan’ has become generic.”101
In 2003, the Commission filed suit against Germany for failure to
end the marketing of products labeled “parmesan” which did not comply with requirements of the protected geographic indicator “Parmigiano Reggiano.”102 In response, Germany again argued that the
word “parmesan” was only a translation of “Parmigiano,” not “Par94 See id. ¶ 26.
95 Case C-87/97, Consorzio per la Tutela del Formaggio Gorgonzola v. Keserei Champignon Hofmeister GmbH & Co., 1999 ECR I-1301, CELEX No. 697C0087, ¶¶ 33–34
(Opinion of Advocate General Jacobs).
96 Id. ¶ 34.
97 See id.
98 Parmesan I, 2002 E.C.R. I-5917, ¶¶ 10–13.
99 Id. ¶ 14(1).
100 Id. ¶¶ 17, 20.
101 Id. ¶ 20.
102 Parmesan II, 2008 E.C.R. I-00957, ¶¶ 10–15.
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migiano Reggiano,” and that the term was generic, precluding application of Regulation 2081/92.103
The ECJ rejected the first argument, holding that all parts of a registered name could be protected without an explicit request or declaration by the registrants.104 The ECJ held that, in such cases, it defers to
the national court to decide whether to protect the name “on the basis
of a detailed analysis of the facts presented before it by the parties concerned.”105
Ultimately, the ECJ held that Germany had not produced enough
evidence to show that “parmesan” was a generic term.106 The ECJ
looked not only to the factors explicitly mentioned in Article 3, but also
to the “conceptual proximity” of the two terms, including the “phonetic
and visual similarities” between the names “parmesan” and “Parmigiano Reggiano.”107 The ECJ made clear that the mental images
evoked in the mind of the consumer were also relevant to this analysis;
accordingly, if the name “parmesan” evoked images of the protected
product, “Parmigiano Reggiano,” it would indicate a closer link between the two names.108 Such a link suggested that the disputed name
impermissibly misled the consumer and therefore clearly violated
Regulation 2081/92.109
C. Case Law Under the New Regulation 510/2006
Most recent case law in the ECJ concerning Regulation 510/2006
reinforces the court’s previous judgments concerning generic names
but has yet to address homonymous ones. Alberto Severi v. Regione EmiliaRomagna involved the sale of a sausage labeled “Salame tipo Feline.”
The Italian government argued that the label impermissibly infringed
on the protected name, “Salame Feline.”110 The ECJ pointed to previous case law in stating that “[t]he way in which the name of a product
becomes generic is the result of an objective process.”111 Furthermore,
the ECJ clarified that although protected names can never become ge103 Id. ¶¶ 25–26.
104 Id. ¶¶ 29–30.
105 Id. ¶ 30.
106 Id. ¶ 57.
107 Id. ¶¶ 44–48.
108 See Parmesan II, 2008 E.C.R. I-00957, ¶ 44.
109 Id. ¶¶ 44–49; see Council Regulation 2081/92, art. 3, 1992 O.J. (L 208) 3 (EC).
110 Case C-446/07, Alberto Severi v. Regione Emilia-Romagna, 2009 E.C.R. 00000, ¶¶ 20–
27, available at http://curia.europa.eu/jcms/jcms/j_6/(enter “C-446/07” in “Case no.”
search field, select “Judgment”).
111 Id. ¶ 50.
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neric, it does not lead to the presumption that unprotected names are
generic.112
D. Jurisdiction of the ECJ
The cases above were referred to the ECJ by national courts seeking clarification on the correct interpretation of EC law, or were
brought directly to the ECJ by member states.113 The ECJ, while accepting the questions before it in the above mentioned cases, has not always
limited itself to the narrow scope of the inquiry.114 Final judgment on
questions of fact remain in the exclusive jurisdiction of national courts,
yet the ECJ has taken such opportunities to elaborate on all the legal
issues arising out of the questions presented to it.115
For example, in Gorgonzola, the ECJ explicitly stated that it is not
strictly limited to deciding the questions presented to it, but rather can
rule on “all those elements for the interpretation of Community law
which may be of assistance in adjudicating on the case pending before
it.”116 The broad interpretation greatly expands not only the scope of
the inquiry presented in any case, but also the power of the ECJ in
formulating the exact interpretation of Regulation 2081/92 and Regulation 510/2006.117
III. Analysis
Regulation 510/2006 is a step forward in addressing the issues presented by disputed names in the Feta, Gorgonzola, and Parmesan cases.118
Despite the added procedure and the addition of subsection 3 to Article 3, however, the new regulation neither defines what constitutes a
“homonymous name” nor explicitly states how to weigh the factors considered in registering a homonymous name.119 The subsection is writ112 Id. ¶ 47.
113 See Parmesan II, 2008 E.C.R. I-00957, ¶ 1; Feta II, 2005 E.C.R. I-9115, ¶ 1; Parmesan I,
2002 E.C.R. I-5917, ¶ 1; Feta I, 1999 E.C.R. I-1541, ¶ 1; Gorgonzola, 1999 ECR I-1301, ¶ 1.
114 See Gorgonzola, 1999 ECR I-1301, ¶ 16; Colomer Opinion in Canadane, 1997 E.C.R. I4681, CELEX No. 695C0317, ¶¶ 34, 45–49.
115 See Gorgonzola, 1999 ECR I-1301, ¶ 16; Colomer Opinion in Canadane, 1997 E.C.R. I4681, CELEX No. 695C0317, ¶¶ 34, 45–49.
116 Gorgonzola, 1999 ECR I-1301, ¶ 16.
117 See id.; Council Regulation 510/2006, art. 3, 2006 O.J. (L 93) 14 (EC); Council
Regulation 2081/92, art. 3, 1992 O.J. (L 208) 3 (EC).
118 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 40–49; Feta II, 2005 E.C.R. I-9115, ¶¶ 84–94;
Feta I, 1999 E.C.R. I-1541, ¶¶ 84–88; Gorgonzola, 1999 ECR I-1301, ¶ 14; Council Regulation
510/2006, art. 3(3), 2006 O.J. (L 93) 14 (EC).
119 See Council Regulation 510/2006, art. 3(3), 2006 O.J. (L 93) 14 (EC).
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ten in vague, broad terms; without further clarification, such language
runs the risk of fostering increased judicial activism on the part of the
ECJ.120 An amendment to Regulation 510/2006 which sets out a clear
test for defining a homonymous name is essential in order to provide
notice to member states and producers regarding, when homonymous
names can be registered and conversely, when the use of such names is
impermissible.121
A. What Constitutes a “Homonymous Name”?
In both the Gorgonzola and Parmesan cases, the ECJ was left to devise its own test for determining if the disputed name was too similar to
the registered one.122 Although the court did not explicitly mention
“homonymous names,” the facts in both cases—particularly in the Parmesan cases—indicate that the ECJ was grappling with that exact issue.123 In Parmesan II, the ECJ articulated a new test for determining
when disputed names are too similar to a registered one and seemed to
apply, by analogy, the standard developed in the Gorgonzola case concerning the definition of the term “evocation.”124 Though the ECJ
could continue to apply the same standards it formulated for generic
or impermissible names to homonymous ones, the threshold issue of
what constitutes a homonymous name should be clarified.125
The fact that Article 3 of Regulation 510/2006 lacks a clear definition of a “homonymous name” indicates that the ECJ will be left with
only the Gorgonzola and Parmesan II cases to serve as guidance in finding
whether a name is homonymous.126 The test the court articulated in
those cases examined whether homonymous names evoked mental images of the registered name in the minds of the consumer.127 To conduct this analysis, the ECJ looked to the “conceptual proximity” be-
26.
120 See id.
121 See id.; Council Regulation 2081/92, art. 3, 1992 O.J. (L 208) 3 (EC).
122 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 44–49; Gorgonzola, 1999 ECR I-1301, ¶¶ 22–
123 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 32–42; Parmesan I, 2002 E.C.R. I-5917, ¶ 20;
Gorgonzola, 1999 ECR I-1301, ¶ 26.
124 Parmesan II, 2008 E.C.R. I-00957, ¶¶ 47–49; see Gorgonzola, 1999 E.C.R. I-1301,
¶¶ 22–26.
125 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 47–49; Gorgonzola, 1999 E.C.R. I-1301,
¶¶ 22–26.
126 Council Regulation 510/2006, art. 3(3), 2006 O.J. (L 93) 14 (EC); see Parmesan II,
2008 E.C.R. I-00957 ¶¶ 40–49; Gorgonzola, 1999 E.C.R. I-1301, ¶ 22–26; O’Connor, supra
note 25, at 79.
127 Parmesan II, 2008 E.C.R. I-00957, ¶¶ 44–49; Gorgonzola, 1999 E.C.R. I-1301, ¶¶ 22–
26.
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tween the two names, as well as their “phonetic and visual similarities.”128
It is significant to note that in Parmesan II, the ECJ found it unnecessary to decide whether “parmesan” was an exact translation of “Parmigiano Reggiano.”129 The ECJ held that the “[conceptual] proximity
and the phonetic and visual similarities” between the two names were
sufficient to evoke images of the protected name in the mind of the
consumer; thus, use of the name, “parmesan,” violated Regulation
2081/92.130 In refusing to rule on whether translations of registered
names will always be considered “homonymous,” and by adding several
different factors to its analysis, the ECJ only widened the scope of what
constitutes a “homonymous name.”131
A “phonetic and visual” similarity encompasses more than direct
translations of protected names, as evident in the Gorgonzola case.132 If a
name is not a direct translation but looks sufficiently similar to the protected name, the ECJ can find it impermissibly homonymous.133 Moreover, the “conceptual proximity” element of the analysis allows the ECJ
to go even further in protecting producers of registered products.134
These elements, coupled with the ECJ’s ruling in Gorgonzola that a registered name can be evoked even “where there is no likelihood of confusion between the products concerned,” indicates that producers of
unprotected, possibly homonymous names may be at the mercy of the
ECJ.135
Another concern involves one of the principal tenets of the EC,
that of the free movement of goods between member states.136 The collective monopolies enjoyed by producers of protected geographic indicators of foodstuffs constitute an exception to the rule.137 When the
scope of protection extended to these monopolies is expanded, the
128 Parmesan II, 2008 E.C.R. I-00957, ¶¶ 44–49; see Gorgonzola, 1999 E.C.R. I-1301,
¶¶ 22–26.
129 Parmesan II, 2008 E.C.R. I-00957, ¶ 47.
130 Id. ¶¶ 48–49; see Council Regulation 2081/92, arts. 3, 13 1992 O.J. (L 208) 3, 6
(EC).
131 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 44–49.
132 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 44–49; Gorgonzola, 1999 E.C.R. I-1301,
¶¶ 22–26.
133 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 44–49; Gorgonzola, 1999 E.C.R. I-1301,
¶¶ 22–26.
134 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 47–49.
135 See id. ¶¶ 45–49; Gorgonzola, 1999 E.C.R. I-1301, ¶¶ 22–26.
136 See EC Treaty, supra note 57, arts. 30, 34.
137 See id. art. 36; Chen, supra note 63, at 62.
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free movement of goods within the Community becomes limited.138
Without distinctly defined limits on what constitutes a homonymous
name, any name that is found to possess a “conceptual proximity” to a
registered name could be in violation of Regulation 510/2006.139
Perhaps a better standard for determining whether a name is homonymous is one which examines only the “visual and phonetic similarities” between the registered name and the disputed name, particularly if both names are in similar product markets.140 As the “visual and
phonetic similarities” standard encompasses more than mere translations, such a standard would allow the EC to affirmatively prohibit
translations of registered names.141 In addition, the “visual and phonetic similarities” standard seems to be much more objective than the
“conceptual proximity” element articulated in Parmesan II.142 The latter
element simultaneously gives the ECJ much more discretion in determining whether names are homonymous and amplifies the risk of the
court issuing inconsistent decisions.143
B. Additional Relevant Factors Provided by Article 3(3)
Subsection 3 of Article 3 of Regulation 510/2006, consistent with
Article 13 which protects registered names against “misuse, imitation,
or evocation,” prohibits registration of homonymous names which
“mislead[] the consumer into believing that products come from another territory.”144 The subsection also expressly adds two requirements
to the analysis: “local and traditional usage” of the registered name and
a “sufficient distinction in practice” between the homonymous name
and the registered name before latter may be registered.145 The exact
definitions of these terms remain vague, however, and thus pose the
risk of allowing the ECJ too much judicial discretion.146
Much like the issues raised in defining homonymous names, the
principal concerns are ones of scope and degree.147 Neither case law
138 See EC Treaty, supra note 57, arts. 30, 34.
139 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 47–49; Council Regulation 510/2006, art.
3(3), 2006 O.J. (L 93) 14 (EC).
140 See Parmesan II, 2008 E.C.R. I-00957, ¶ 46.
141 See id. ¶¶ 44–49.
142 See id.
143 See id.; Gorgonzola, 1999 E.C.R. I-1301, ¶¶ 22–30.
144 Council Regulation 510/2006, arts. 3(3), 13, 2006 O.J. (L 93) 14, 19 (EC).
145 Id. art. 3(3)(b).
146 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 42–49; Gorgonzola, 1999 E.C.R. I-1301,
¶¶ 22–30; Council Regulation 510/2006, arts. 3(3), 13, 2006 O.J. (L 93) 14, 19 (EC).
147 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 42–49.
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nor Article 3 sheds any light on what criteria will satisfy the “local and
traditional” or “sufficient[ly] distinct[]” requirements.148 Furthermore,
these factors would ultimately preclude producers from registering new
products with homonymous names, thereby protecting the older, registered name at the expense of the new product.149 Although limitation
of the number of protected names—and their producers—is consistent
with the goal of promoting the free movement of goods within the
Community, healthy competition among producers of products with
homonymous names is also integral to attaining this goal.150
Article 3 runs the risk of curtailing healthy competition if a product with a homonymous name cannot satisfy both of these additional
factors.151 For example, it is conceivable that a producer may wish to
market a product that meets the “sufficient[ly] distinct[]” factor but
fails the “local and traditional usage” factor because the product itself is
relatively new.152 Failure to satisfy latter factor would require the producer to market the product under a new name, unless the producer
can present a valid, equitable argument as to why it should be permitted to retain the homonymous name.153 For instance, if the homonymous name had been “legally on the market for at least five years preceding the date of the publication” of the registered name, the ECJ
would allow a transitional period of five years within which the name
must be gradually phased out.154 By contrast, if producers have not previously marketed homonymous names, they will be left at the mercy of
the ECJ.155
C. Balancing the Factors
Compounding the problem of what constitutes a homonymous
name is the issue of how to weigh all the relevant factors in determining
whether a homonymous name can co-exist with a protected one.156 In
the Feta cases, the ECJ held that all the factors must be weighed equally,
148 Parmesan II, 2008 E.C.R. I-00957, ¶¶ 42–49; Council Regulation 510/2006, art. 3,
2006 O.J. (L 93) 14 (EC).
149 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 42–49; Council Regulation 510/2006, art. 3,
2006 O.J. (L 93) 14 (EC).
150 See EC Treaty, supra note 57, arts. 30, 34.
151 See id.; Council Regulation 510/2006, art. 3, 2006 O.J. (L 93) 14 (EC).
152 See Council Regulation 510/2006, art. 3, 2006 O.J. (L 93) 14 (EC).
153 See id. arts. 3(b), 13.
154 See id. arts. 3, 13, 17.
155 Id. arts. 3(b), 17.
156 See Feta II, 2005 E.C.R. I-9115, ¶¶ 84–94; Feta I, 1999 E.C.R. I-1541, ¶ 88; Council
Regulation 510/2006, art. 3, 2006 O.J. (L 93) 14 (EC).
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with no preference given to any member state.157 The question in those
cases involved the definition of a generic name, however, not a homonymous one.158 As homonymous names are now recognized as presenting their own unique problems, there is no guarantee that the ECJ’s
approach to generic names will be afforded to homonymous ones.159
Going forward, this leaves both the ECJ and concerned producers
with little guidance on which to rely.160 Generic names, unlike homonymous ones, are explicitly provided with a procedure for balancing
the relevant factors, even in Regulation 2081/92.161 Despite this fact,
the appropriate method of balancing all relevant factors gave rise to
much litigation.162 It is unusual, then, that Regulation 510/2006 is
ominously silent on the issue of how to balance the factors regarding
homonymous names.163 The absence of any express method of balancing the factors established in subsection 3 suggests that European producers will be forced to wait until the ECJ formulates its own balancing
method before they know exactly which homonymous names are eligible for registration, or susceptible to challenge in court.164
D. The Need for a Clear Standard
Article 3 of Regulation 510/2006 lacks both clear definitions of the
terms used and the detailed procedure needed to provide both the ECJ
and producers of foodstuffs with notice concerning permissible use of
homonymous names.165 These deficiencies leave the ECJ with very little
on which to rely and run the risk of increased judicial activism and inconsistent case law.166 In light of the repeated litigation that arose un157 Feta II, 2005 E.C.R. I-9115, ¶¶ 84–94; Feta I, 1999 E.C.R. I-1541, ¶ 88.
158 Feta II, 2005 E.C.R. I-9115, ¶ 70; Feta I, 1999 E.C.R. I-1541, ¶¶ 49–50.
159 See Feta II, 2005 E.C.R. I-9115, ¶¶ 84–94; Feta I, 1999 E.C.R. I-1541, ¶ 88; Council
Regulation 510/2006, art. 3(3), 2006 O.J. (L 93) 14 (EC).
160 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 42–49; Gorgonzola, 1999 ECR I-1301, ¶¶ 22–
30.
161 Council Regulation 510/2006, art. 3(3), 2006 O.J. (L 93) 14 (EC); Council Regulation 2081/92, art. 3, 1992 O.J. (L 208) 3 (EC).
162 See Parmesan II, 2008 E.C.R. I-00957, ¶ 1; Feta II, 2005 E.C.R. I-9115, ¶¶ 84–94; Parmesan I, 2002 E.C.R. I-5917, ¶ 1; Feta I, 1999 E.C.R. I-1541, ¶ 1; Gorgonzola, 1999 ECR I1301, ¶ 1.
163 Council Regulation 510/2006, art. 3, 2006 O.J. (L 93) 14 (EC).
164 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 44–49; Council Regulation 510/2006, art. 3,
2006 O.J. (L 93) 14 (EC); Council Regulation 2081/92, art. 3, 1992 O.J. (L 208) 3 (EC).
165 Council Regulation 510/2006, art. 3, 2006 O.J. (L 93) 14 (EC).
166 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 44–49; Gorgonzola, 1999 ECR I-1301, ¶ 16;
Council Regulation 510/2006, art. 3, 2006 O.J. (L 93) 14 (EC); see also Feta II, 2005 E.C.R.
I-9115, ¶¶ 42–44; Feta I, 1999 E.C.R. I-1541, ¶¶ 48–52. Registration of “Feta” was chal-
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der cases concerning generic names, the EC should amend subsection
3 of Article 3 to reflect a clear standard.167
Most changes made in Regulation 510/2006 were procedural: articulating how groups can register names; how those names can be
changed; and how to ensure compliance with the regulation.168 Given
this degree of added procedure, it is difficult to argue that member
states will object to the inclusion of an express balancing test in Article
3, particularly if the test will reduce uncertainty and thus, excessive and
expensive litigation.169 Though one could argue that the Feta cases
serve as proof that an express balancing test will not necessarily reduce
repeated litigation, it is difficult to support a claim that no test would
be a better alternative.170
The EC should also clearly define the terms used in Article 3, particularly the terms “local and traditional usage” and “sufficient distinction in practice.”171 Pending the litigation of a case that involves these
terms, member states, producers, and even the ECJ will be left in the
dark regarding how to define these terms.172 Leaving resolution of this
issue to national courts may result in variable treatment of homonymous names by member states.173 This outcome would not only run
counter to the purpose of Regulation 510/2006 but would also pose
obstacles to the core EC principle of the free movement of goods.174
Despite the fact that registered names and products are the exception
to Articles 30 and 34 of the EC Treaty, widely differing standards between national courts could rise to the level of “arbitrary discrimination
or a disguised restriction on trade between member states”175 in viola-
lenged four times, although the most recent challenge was dismissed for lack of standing.
Id.
167 See Feta II, 2005 E.C.R. I-9115, ¶¶ 42–44; Feta I, 1999 E.C.R. I-1541, ¶¶ 48–52; Council Regulation 510/2006, art. 3, 2006 O.J. (L 93) 14 (EC).
168 Council Regulation 510/2006, arts. 3–5, 9, 11, 16, 2006 O.J. (L 93) 14–16, 18–19, 20
(EC).
169 See Feta II, 2005 E.C.R. I-9115, ¶¶ 42–44; Feta I, 1999 E.C.R. I-1541, ¶¶ 48–52; Council Regulation 510/2006, arts. 3–5, 9, 11, 16, 2006 O.J. (L 93) 14–16, 18–19, 20 (EC).
170 See Feta II, 2005 E.C.R. I-9115, ¶¶ 42–44; Feta I, 1999 E.C.R. I-1541, ¶¶ 48–52.
171 See Council Regulation 510/2006, art. 3(3), 2006 O.J. (L 93) 14 (EC).
172 See Parmesan II, 2008 E.C.R. I-00957, ¶¶ 44–49; Gorgonzola, 1999 E.C.R. I-1301, ¶16.
173 See Council Regulation 510/2006, pmbl., 2006 O.J. (L 93) 12 (EC); Council Regulation 2081/92, pmbl., 1992 O.J. (L 208) 1 (EC). See generally TRIPS Council, supra note 29
(providing an overview of various existing international agreements for registration and
protection of geographic indicators).
174 See EC Treaty, supra note 57, arts. 30, 34, 36; Council Regulation 510/2006, pmbl.,
2006 O.J. (L 93) 12 (EC).
175 See EC Treaty, supra note 57, art. 36.
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tion of Article 36.176 Amending Regulation 510/2006 to provide more
procedure and a clear standard for regulating homonymous names
could prevent this result, while simultaneously reducing uncertainty
and litigation.177
Conclusion
Although the EC inserted a subsection dealing specifically with
homonymous names into the new Regulation 510/2006, pressing issues
remain unresolved, including how to define the term “homonymous
names” and how to balance factors pertinent to determining the permissible use of such names. The Feta, Parmesan, and Gorgonzola cases
illustrate the problems presented to the ECJ even when definitions and
the proper balancing test to be applied are explicitly provided. In light
of the oft-times repeated litigation that these cases have produced, it
would be wise for the EC to amend Regulation 510/2006 to include a
concrete definition of “homonymous names” and a test to determine
whether they can be registered.
Such definitions and tests should be promulgated at the Community level, despite the fact that national courts have jurisdiction to resolve questions of fact under Regulation 510/2006. Due to the fact that
Regulation 2081/92 and Regulation 510/2006 were passed in an effort
to establish a uniform standard for the protection of geographic indicators of foodstuffs within the Community, allowing national courts to
form widely diverging tests would be inconsistent with that goal. Alternatively, allowing the ECJ to develop definitions and tests for homonymous names could take time and create increased litigation, which will
force the ECJ to develop definitions and tests for homonymous names.
These dual concerns indicate that the EC should take steps to amend
Regulation 510/2006.
An amendment to Regulation 510/2006 would not only provide
notice to member states and producers but would also promote the
goals of the EC by reducing uncertainty and litigation and facilitating
the free movement of goods. These considerations, together with the
issues that arose in the cases mentioned above, demonstrate the need
176 See id. arts. 30, 34, 36.
177 See Feta II, 2005 E.C.R. I-9115, ¶¶ 42–44; Feta I, 1999 E.C.R. I-1541, ¶¶ 48–52; Council Regulation 510/2006, art. 3, 2006 O.J. (L 93) 14 (EC); see also Faulhaber, supra note 18,
at 663 (arguing that EC member states are not only more willing to bring cases before the
ECJ but that such disputes also have a decidedly more political agenda than cases brought
under United States law).
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to amend Article 3 of Regulation 510/2006 to provide for clearer standards concerning homonymous names of registered products.
INSERTED BLANK PAGE
MORAL DISHARMONY: HUMAN
EMBRYONIC STEM CELL PATENT
LAWS, WARF, AND PUBLIC POLICY
Jenny Shum*
Abstract: Human embryonic stem cells have unique regenerative properties and the ability to develop into a variety of different cell types. Based
on these properties, stem cell research is considered a promising biomedical field for the development of cell-based therapies to treat diseases.
It is also a highly contentious field because these cells are derived from
human embryos. The United States, unlike the European Union, does
not have a moral component to the patent grant process and has granted
several stem cell patents. This Note examines the intersection of these
broad patents and U.S. policies limiting stem cell research funding and
highlights their deleterious effects on the progress of human embryonic
stem cell research. This Note also evaluates the feasibility of incorporating
ethical criteria, as used in the European Union, for U.S. patent grants
and concludes that uniform moral standards would be impossible to determine and effectuate for this process.
Introduction
The cornerstones of patent protection for an invention are that it
grants the inventor the rights to his or her invention and gives the inventor the right to exclude others from practicing the invention.1 Notwithstanding these basic protections, patents do not confer the patentee the right to practice the invention itself.2 That specific right may
be governed by domestic laws within a particular State.3 Patents may be
granted based on several principles, including: (1) as an incentive to
* Jenny Shum is the Senior Articles Editor for the Boston College International & Comparative Law Review. She has an M.S. and Ph.D. in the Biomedical Sciences (Biochemistry
and Molecular Biology).
1 See 35 U.S.C. § 154 (2006); James Bessen & Michael J. Meurer, Patent Failure:
How Judges, Bureaucrats, and Lawyers Put Innovators at Risk 4 (2008); Robert P.
Merges et al., Intellectual Property in the New Technological Age 126–27 (4th
ed. 2006).
2 Russell Korobkin, Stem Cell Century: Law and Policy for a Breakthrough
Technology 96 (2007); Berthold Rutz & Siobhan Yeats, Patenting of Stem Cell Related Inventions in Europe, 1 Biotechnology J. 384, 384 (2006).
3 Korobkin, supra note 2, at 96; Rutz & Yeats, supra note 2, at 384.
153
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invent and (2) as a reward to the inventor for disclosing his or her invention.4 Indeed, the United States Constitution affords exclusive
rights for an inventor’s discoveries to “promote the Progress of Science
and useful Arts.”5 Conflicts may arise between protecting an inventor’s
patent rights and issuing overly broad patents that discourage further
innovation.6
Biotechnology has produced numerous advances across various
fields, including agriculture and medicine.7 As a result, there has been
a steady surge of biotechnology patents sought and granted since the
early-1990s.8 One major biomedical breakthrough has been the isolation of adult and embryonic stem cells, first in mice and later in humans.9 Stem cells are immature cells that have not differentiated into a
specialized cell type and are capable of self-renewal.10 Due to their undifferentiated state and ability to self-perpetuate, stem cells are thought
to hold special promise for a number of therapeutic uses, including as
cellular replacements in damaged and degenerative cell or tissue disorders.11 Extensive research has gone into determining how to direct
the differentiation of stem cells such that they form cells of a specific
type.12 For example, stem cells could be induced to differentiate into
insulin-producing pancreatic b cells to treat Type I diabetics who lack
them, or into osteoblasts, cells necessary for bone formation, to repair
4 Rebecca S. Eisenberg, Patents and the Progress of Science: Exclusive Rights and Experimental Use, 56 U. Chi. L. Rev. 1017, 1024–31 (1989).
5 U.S. Const. art I, § 8, cl. 8.
6 See Bessen & Meurer, supra note 1, at 4.
7 See Barry R. Schaller, Understanding Bioethics and the Law: The Promises
and Perils of the Brave New World of Biotechnology 2–3 (2008). See generally Biotech. Indus. Org., Guide to Biotechnology (2008), http://bio.org/speeches/pubs/
er/BiotechGuide2008.pdf (highlighting biotechnological innovations).
8 Karl Bergman & Gregory D. Graff, The Global Stem Cell Patent Landscape: Implications
for Efficient Technology Transfer and Commercial Development, 25 Nature Biotechnology 419,
420 (2007); Sara Dastgheib-Vinarov, A Higher Nonobviousness Standard for Gene Patents: Protecting Biomedical Research from the Big Chill, 4 Marq. Intell. Prop. L. Rev. 143, 165 (2000).
9 Martin Evans & Matthew H. Kaufman, Establishment in Culture of Pluripotential Cells
from Mouse Embryos, 292 Nature 154–56 (1981); James Thompson et al., Embryonic Stem Cell
Lines Derived from Human Blastocysts, 282 Sci. 1145–47 (1998).
10 L. Buttery, F. Rose & K. Shakesheff, Stem Cells and Tissue Engineering, in Medical
Biotechnology 149, 154–55 (Judit Pongracz & Mary Keen eds., 2009). Differentiation is
the process by which cells acquire particular characteristics that give the cell its functionality. Id. at 155.
11 Korobkin, supra note 2, at 18–21.
12 Id.
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Human Embryonic Stem Cell Patents, WARF & Public Policy
155
bone defects in people suffering from osteoporosis or other related
ailments.13
Embryonic stem cells (ESCs) are pluripotent, meaning that they
can differentiate into almost all of the various cell types in the body.14
An additional characteristic of ESCs is that they are capable of indefinite self-renewal.15 In contrast, adult stem cells (ASCs) are multipotent
and are therefore limited to differentiating only into a particular cell
type(s), usually from the tissue of origin.16 Furthermore, ASCs differ in
that they tend to have a finite period of proliferation and cannot replicate indefinitely.17 There are also totipotent stem cells, which can develop into any cell in the human body, thus having the potential to develop into a complete living organism.18 The use of human ESCs
(hESCs) is controversial and fraught with ethical concerns due to the
isolation process, which results in the destruction of the embryo.19 Unlike hESCs, ASCs are extracted via invasive procedures from tissues in
the body and are typically present in exceptionally low numbers. Additionally, ASCs present challenges for culturing them in vitro, a process
which restricts their potential clinical applications.20
In the United States and several other countries, including Sweden
and the United Kingdom, stem cell patents are permitted.21 In 1998,
13 Buttery et al., supra note 10, at 155; Jojanneke M. Jukes et al., Endochondral Bone Tissue Engineering Using Embryonic Stem Cells, 105 Proc. Nat’l. Acad. Sci. U.S. Am. 6840, 6840
(2008).
14 Buttery et al., supra note 10, at 155–56.
15 Id. at 156.
16 Id. at 155–56. Pluripotent stem cells are extracted after the cells have developed beyond the totipotent stage. Pluripotent stem cells cannot give rise to extraembryonic cells,
such as placental cells, and cannot form a living organism. Pluripotent stem cells that have
undergone partial differentiation, in turn, develop into multipotent progenitor cells. Examples of multipotent stem cells would be those obtained from the bone marrow or hematopoietic stem cells, which could only differentiate into various types of blood cells and not
others, such as neural cells. See id. Recent studies suggest that adult tissues may contain
small numbers of ASCs that may be pluripotent. See generally Mariusz Z. Ratajczak, A Hypothesis for an Embryonic Origin of Pluripotent Oct-4+ Stem Cells in Adult Bone Marrow and Other
Tissues, 21 Leukemia 860 (2007) (noting that evidence is accumulating that adult tissues
contain stem cells that express certain markers characteristic of pluripotent embryonic
stem cells).
17 Buttery et al., supra note 10, at 156.
18 Id. at 155.
19 Korobkin, supra note 2, at 21; see Buttery et al., supra note 10, at 160.
20 Buttery et al., supra note 10, at 156, 160.
21 Primate Embryonic Stem Cells, U.S. Patent No. 5,843,780 (filed Jan. 18, 1996) (issued Dec. 1, 1998) [hereinafter ’780 Patent]; Aurora Plomer, Constitutional Limits on Moral
Exemptions to European Biotech Patents, in Festskrift till Marianne Levin 487, 489, 493
(Antonina Bakardjieva Engelbrekt et al. eds., 2008).
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the United States issued the first patent on stem cells to James Thomson and assigned it to the Wisconsin Alumni Research Foundation
(WARF).22 WARF later obtained two additional stem cell patents in
2001 and 2006.23 Taken together, the patents broadly claimed both the
process of developing hESC lines and all hESCs themselves as a composition of matter claim, regardless of how they are generated.24 The validity of these patents was subsequently upheld by the U.S. Patent and
Trademark Office (PTO).25
The Enlarged Board of Appeal (EBoA) of the European Patent
Office (EPO) issued a landmark ruling in 2008 in which it refused to
allow a WARF hESC patent on the grounds that it was contrary to “public order or morality” because it requires the use and destruction of
human embryos.26 In distinct contrast to the United States, the European Union (EU), operating through the European Patent Convention
(EPC) and the Directive by the European Parliament and the Council
of the EU (Biotech Directive), incorporates ethical considerations into
its patentability analysis.27 Article 53(a) of the EPC, also mirrored in
Article 6 of the Biotech Directive, states that European patents will not
be granted for “inventions the publication or exploitation of which
would be contrary to ‘ordre public’ or morality.”28 Moreover, the Biotech Directive specifically notes, in particular, that “uses of human embryos for industrial or commercial purposes” are to be excluded from
patent protection.29 In 1999, the rules of the EPO were amended to
22 ’780 Patent, supra note 21.
23 Primate Embryonic Stem Cells, U.S. Patent No. 7,029,913 (filed Oct. 18, 2001) (issued Apr. 18, 2006) [hereinafter ’913 Patent]; Primate Embryonic Stem Cells, U.S. Patent
No. 6,200,806 (filed June 26, 1998) (issued Mar. 13, 2001) [hereinafter ’806 Patent].
24 ’913 Patent, supra note 23; ’806 Patent, supra note 23; ’780 Patent, supra note 21.
25 Press Release, Wis. Alumni Research Found., United States Patent and Trademark Office Upholds Key WARF Stem Cell Patent (Feb. 28, 2008), http://www.warf.org/up-loads/
media/Key_hES_Cell_Patent-Upheld_Release_v6–3.pdf [hereinafter WARF-PTO PR1]; Press
Release, WARF, Patent Office Upholds Remaining WARF Stem Cell Patents (Mar. 11, 2008),
http://www.warf.org/news/news.jsp?news_id=226 [hereinafter WARF-PTO PR2]; Press Release, WARF, U.S. Patent Office Issues Certificates to Uphold WARF Stem Cell Patents ( June
26, 2008), http://www.warf.org/news/news.jsp?news_id=234.
26 Wisconsin Alumni Research Foundation, Case G 0002/06, Eur. Patent Off., 23–26
(Nov. 25, 2008) [hereinafter EBoA Decision].
27 Convention on the Grant of European Patents, art. 53, Oct. 5, 1973 [hereinafter
EPC]; Eur. Parliament & Council Directive 98/44/EC of 6 July 1998 on the Legal Protection of Biotechnological Inventions, 1998 O.J. (L 213) 13 (EC) [hereinafter Biotech Directive].
28 EPC, supra note 27, art. 53(a); Biotech Directive, supra note 27, at 18–19.
29 Biotech Directive, supra note 27, at 18.
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include a new section on biotechnological inventions that incorporated
the exclusions delineated within the Biotech Directive.30
This Note first examines the differing approaches toward the patentability of human embryonic stem cells in the United States and the
EU, with particular attention to the WARF patents. It next analyzes
whether moral criteria should play a role in the determination of patentability. It also assesses whether the United States should harmonize
its stem cell patent policy with that of the EU. Finally, this Note considers the impact of U.S. policies regulating human embryonic stem cell
research, both domestically and internationally.
I. Background
A. Patentability of Stem Cells in the United States
Patents in the United States are granted for inventions that are
useful, novel, and nonobvious.31 Section 101 of Title 35 of the United
States Code states that patentable inventions consist of “any new and
useful process, machine, manufacture, or composition of matter, or any
new and useful improvement thereof . . . .”32 In 1889, the Commissioner of the U.S. Patent Office first addressed the issue of patenting
living subject matter in Ex parte Latimer, by ruling that allowing patents
to products of nature would be “unreasonable and impossible.”33 This
stance changed in the seminal case of Diamond v. Chakrabarty, where the
U.S. Supreme Court held that genetically modified bacteria, living organisms, could be patented.34 In making its decision, the Court noted
that it was irrelevant to patentability whether the invention was living or
inanimate.35 Subsequently, in Ex parte Allen, the U.S. PTO’s Board of
Patent Appeals and Interferences (BPAI) ruled that a chromosomally
altered oyster, modified to be sterile, was patentable.36
Allen, taken together with Chakrabarty, indicated that the complexity of the organism was also irrelevant to patentability.37 Shortly after
30 Implementing Regulations to the Convention on the Grant of European Patents, R.
28, Nov. 29, 2000.
31 35 U.S.C. §§ 101–103(a).
32 Id. § 101.
33 Dec. Com. Pat. 123, 126 (1889).
34 See 447 U.S. 303 (1980).
35 Id. at 313.
36 2 U.S.P.Q.2d (BNA) 1425 (Bd. Pat. App. & Int. 1987).
37 Robert P. Merges & John F. Duffy, Patent Law and Policy: Cases and Materials 127 (4th ed. 2007).
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the BPAI’s ruling in Allen, the Commissioner of the U.S. PTO issued a
notice stating that nonnaturally occurring, nonhuman multicellular
living organisms, including animals, were patentable subject matter.38
The BPAI explicitly clarified the issue of whether patenting of human
beings was permissible, stating “[a] claim directed to or including
within its scope a human being will not be considered to be patentable
subject matter under 35 U.S.C. [§] 101.”39 The basis for the BPAI’s
analysis was that the patenting of human beings was akin to slavery and,
since one person cannot be the property of another, it was therefore a
contravention of the Thirteenth Amendment.40 The U.S. PTO patent
examiner guidelines also require that “[i]f the broadest reasonable interpretation of the claimed invention as a whole encompasses a human
being, then a rejection under 35 U.S.C. § 101 must be made indicating
that the claimed invention is directed to nonstatutory subject matter.”41
The moral and ethical controversy surrounding the patentability
of human embryonic stem cells arises from their isolation process,
which renders the embryo non-viable.42 Under the judicial doctrine of
beneficial utility, emanating from an 1817 case, Lowell v. Lewis, an otherwise patentable invention is not patentable if it is “injurious to the
well-being, good policy, or sound morals of society.”43 Furthermore,
after a patent application was filed for animal-human hybrids— chimeras—the U.S. PTO issued a position statement indicating that “inventions directed towards human/non-human chimeras could, under certain circumstances, not be patentable because, among other things,
they would fail to meet the public policy and morality aspects of the
utility requirement.”44 Subsequently in 1999, although Lowell was not
specifically overruled, the U.S. Court of Appeals for the Federal Circuit
indicated that the PTO and patent laws were not intended to serve as
arbiters of what constitutes immoral or illegal activities.45 The court
suggested that the determination of whether particular inventions
38 U.S. Pat. & Trademark Off. Notice: Animals—Patentability, reprinted in 1077 Official Gazette Pat. & Trademark Off. 24 (Apr. 7, 1987).
39 Id.
40 See id.
41 U.S. Pat. & Trademark Off., Manual of Patent Examination Procedure § 2105 (8th
ed. rev. 2008) [hereinafter MPEP].
42 Korobkin, supra note 2, at 21; Buttery et al., supra note 10, at 160.
43 15 Fed. Cas. 1018, 1019 (C.C.D. Mass. 1817).
44 Media Advisory, U.S. Patent and Trademark Office, Facts on Patenting Life Forms
Having a Relationship to Humans (Apr. 1, 1998), http://www.uspto.gov/news/pr/1998/
98-06.jsp.
45 See Juicy Whip, Inc. v. Orange Bang, Inc., 185 F.3d 1364, 1368 (Fed. Cir. 1999).
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should be unpatentable was best left to Congress.46 In light of these
prior rulings and the position of the U.S. PTO, hESCs are indeed considered patentable subject matter, as evidenced by the issuance of the
WARF patents.47
B. Stem Cell Patentability in the European Union
In the EU, patents are granted through the EPO, which was established by the EPC in 1973.48 Patents are granted for inventions that are
novel, susceptible to industrial application, and involve an inventive
step.49 Article 53 of the EPC also lays out the exclusions for patentability.50 Inventions whose exploitation would be contrary to public order
and morality are precluded from being patented.51 In the Guidelines
for Examination to the EPO, the criteria for its application are quite
narrow, stating: “This provision is likely to be invoked only in rare and
extreme cases. A fair test to apply is to consider whether it is probable
that the public in general would regard the invention as so abhorrent
that the grant of patent rights would be inconceivable.”52
In 1998, the European Parliament and the Council of the EU issued Directive 98/44/EC concerning the patenting of biotechnological
innovations.53 This biotechnology directive was subsequently incorporated into the EPC.54 Within it, Article 5(1) states that “[t]he human
body, at the various stages of its formation and development, and the
simple discovery of one of its elements, including the sequence or partial sequence of a gene, cannot constitute patentable inventions.”55 In
addition, Article 6(1) reiterates the moral component to patentability
assessments. It also specifically notes in Article 6(2)(c) that patents are
excluded for inventions involving “uses of human embryos for industrial or commercial purposes.”56
46 Id.
47 See ’913 Patent, supra note 23; ’806 Patent, supra note 23.
48 EPC, supra note 27, art. 4.
49 Id. art. 52(1).
50 Id. art. 53(a)–(c).
51 Id. art. 53(a).
52 European Patent Office, Guidelines for Examination in the European Patent Office, pt. C, ch. IV-4.1 (2005) [hereinafter EPO Guidelines].
53 Biotech Directive, supra note 27.
54 See id.
55 Id. art. 5(1).
56 Id. art. 6(2)(c).
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While both the United States and the EU permit the patenting of
human cell lines,57 the EBoA of the EPO issued their decision in November 2008 on the appeal of a WARF patent that had been previously
rejected on moral grounds.58 The EBoA affirmed the earlier ruling
based on moral objections, under Article 53(a) of the EPC, and added
that that it was “not possible to grant a patent for an invention that
necessarily involves the use and destruction of human embryos,” which
is a violation of Rule 28(c) of the Convention.59
II. Discussion
While the recent ruling on the WARF patent by the EBoA of the
EPO and the traditional stance in the United States towards permitting
such patents may have clarified respective national standards on the
patenting of stem cells, the differing criteria utilized renders it difficult
for a prospective patentee to ensure comprehensive intellectual property protection on an international scale.60 Moreover, individual national policy towards stem cell research and funding must also be considered in terms of its effects on innovation and intellectual property
rights.61
57 See generally In re Lundak, 773 F.2d 1216 (Fed. Cir. 1985); European Patent No.
0428656 (filed May 14, 1990) (issued May 29, 1991).
58 EBoA Decision, supra note 26, at 23–26. The EPC was revised in 2000. The current
Rule 28(c) was Rule 23(d)(c) in the original EPC of 1973. EPC, supra note 27 (entered
into force December 13, 2007).
59 European Patent Office, No European Patent for WARF/Thomson Stem Cell Application, Nov. 27, 2008, http://www.epo.org/topics/news/2008/20081127.html.
60 See generally ’913 Patent, supra note 23; ’806 Patent, supra note 23; ’780 Patent, supra
note 21; EBoA Decision, supra note 26.
61 See Address to the Nation on Stem Cell Research, in 2 Pub. Papers 953 (Aug. 9,
2001) [hereinafter GWB Address]; European Commission Directorate General: Research,
Summary of the 25 EU Member States Regulations on Human Embryonic Stem Cells Research (Feb. 2006), http://ec.europa.eu/research/fp6/p1/stemcells/pdf/stemcell_hesc_
regulations_ 2006feb.pdf; Eur. Comm’n Directorate General: Research, Directorate
E - Biotechnology, Agriculture & Food, Survey on Opinions from National Ethics
Committees or Similar Bodies, Public Debate and National Legislation in Relation to Human Embryonic Stem Cell Research and Use: in EU Member States 1
( July 2004) (Line Matthiessen-Guyader ed.), available at http://ec.europa.eu/research/fp6/
p1/stemcells/pdf/stemcell_survey_2004_i.pdf; Eur. Comm’n Directorate General:
Research, Directorate E - Biotechnology, Agriculture & Food, Survey on Opinions from National Ethics Committees or Similar Bodies, Public Debate and National Legislation in Relation to Human Embryonic Stem Cell Research and Use:
Countries Associated to FP6 and Third Countries 2 ( July 2004) (Line MatthiessenGuyader ed.), available at http://ec.europa.eu/research/fp6/p1/stemcells/pdf/stemcell_
survey_2004_ii.pdf.
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A. Patents, Policy, and Scientific Research in the United States
The historical importance of patents in the United States is reflected in the constitutional grant of authority, which formed the foundation for a national patent system, by the Framers of the U.S. Constitution.62 Furthermore, one of the earliest acts passed by the first Congress
was the first U.S. patent statute in 1790.63 Despite the significance given
to the “promot[ion] of the Progress of Science,” tensions may arise
when political policy agendas conflict with scientific research and hinder innovation, thereby impacting intellectual property.64
1. WARF Patents
Patents for living biological matter, such as cell lines or organisms,
have been allowed since Chakrabarty.65 In 1998, James Thomson published his work, which was funded by the University of Wisconsin and
Geron Corporation, on the first isolation of human ESC lines.66 For this
work, three patents, known respectively as the ’780, the ’806, and the
’913 patent, were issued between 1998 and 2006, and the rights were
assigned to WARF.67 All three patent terms will expire by 2015.68 The
’780 patent claims both pluripotent primate ESCs and a method of isolating a primate ESC line.69 Additionally, the ’806 patent claims both
pluripotent human ESCs and a method of isolating an hESC line.70 The
’913 patent also claims pluripotent hESCs.71 Taken together, the
breadth of the WARF patents could potentially cover any and all hESCs
regardless of the process by which the cells are derived.72 Subsequently,
WARF has come under intense criticism by U.S.-based researchers for
the cost and restrictiveness of its licensing practices.73
62 U.S. Const. art. I, § 8, cl. 8.
63 Patent Act of 1790, ch. 7, 1 Stat. 109, 109–12 (Apr. 10, 1790).
64 See U.S. Const. art. I, § 8, cl. 8; Korobkin, supra note 2, at 26–60.
65 See MPEP, supra note 41, § 2105. See generally Diamond v. Chakrabarty, 447 U.S. 303
(1980).
66 Carl Gulbransen, WARF’s Licensing Policy for ES Cell Lines, 25 Nature Biotechnology 387 (2007); Thompson, supra note 9.
67 ’913 Patent, supra note 23; ’806 Patent, supra note 23; ’780 Patent, supra note 21.
68 See ’913 Patent, supra note 23; ’806 Patent, supra note 23; ’780 Patent, supra note 21.
69 ’780 Patent, supra note 21.
70 ’806 Patent, supra note 23.
71 ’913 Patent, supra note 23.
72 See ’913 Patent, supra note 23; ’806 Patent, supra note 23; ’780 Patent, supra note 21;
Korobkin, supra note 2, at 93, 96.
73 Korobkin, supra note 2, at 96–99; Editorial, Burning Bridges, 25 Nature 2 (2007).
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In 2006, the Public Patent Foundation and the Foundation for
Taxpayer and Consumer Rights filed requests with the U.S. PTO for the
reexamination of all three WARF patents.74 The two groups sought to
invalidate the patents citing that they were obvious and not novel.75
Upon reexamination, the U.S. PTO in 2007 issued a preliminary, nonfinal, rejection of the three WARF patents on the basis that they had not
met the nonobviousness requirement.76 The U.S. PTO upheld the ’913
patent in February 2008.77 They then issued final decisions upholding
the ’780 and ’806 patents in March 2008.78
2. Stem Cell Policies and Restrictions
While there has been considerable debate over the moral and ethical use of human embryos in scientific research and for medical conditions, it was not until 1996 that Congress passed an appropriations bill
that included a rider directed toward the issue of hESC research.79
Congressman Jay Dickey introduced an amendment to the bill (The
Dickey Amendment) that prohibited the Department of Health and
Human Services (HHS) from using its funds for “the creation of a human embryo or embryos for research purposes” or for “research in
which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for
research on fetuses in utero.”80 HHS also provides the funding for the
National Institutes of Health (NIH), a major source of scientific research grants in the United States.81 President William Clinton signed
74 Two Groups Try for Revocation of Human Embryonic Stem Cell Patents, 25 Biotechnology L. Rep. 555 (Oct. 2006).
75 Korobkin, supra note 2, at 118.
76 Id. at 119.
77 Press Release, Geron Corp., U.S. Patent Office Upholds Key Human Embryonic
Stem Cell Patent (Feb. 28, 2008), http://www.geron.com/media/pressview.aspx?id=833;
WARF-PTO PR1, supra note 25.
78 Press Release, Geron Corp., U.S. Patent Office Upholds Two Additional Human
Embryonic Stem Cell Patents in Reexamination Decisions (Mar. 11, 2008), http://www.
geron.com/media/pressview.aspx?id=834; WARF-PTO PR2, supra note 25. It is not unusual
for the U.S. PTO to issue preliminary rejections and then later affirm the patents. U.S.
Patent and Trademark Office, Performance and Accountability Report: Fiscal
Year 2008 127–28 (2008), available at http://www.uspto.gov/web/offices/com/annual/2008/
2008annualreport.pdf.
79 Balanced Budget Downpayment Act, I, Pub. L. No. 104–99, § 128, 110 Stat. 26, 34
(1996).
80 Id. § 128, 110 Stat. at 34.
81 See Dep’t of Health and Human Servs. Fiscal Year 2008 Citizens’ Report: Summary of Performance and Financial Results, http://www.hhs.gov/budget/Citizens Re-
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the Dickey Amendment into law, which has been renewed annually ever since.82 Essentially, the amendment rendered any scientific research
on hESCs ineligible for federal funding.83 Indeed, the breakthrough
hESC research by Thomson, which led to the WARF patents, was, as a
matter of course, funded through private sources.84
Soon after Thomson revealed his successful creation of hESC lines,
the General Counsel of HHS, Harriet S. Rabb, issued a legal opinion, at
the request of the Director of NIH, on whether federal funding was
necessarily prohibited for research on hESC lines that were already established.85 Rabb stated that the “statutory prohibition on the use of
funds appropriated to HHS for human embryo research would not apply” to research on hESCs because the cells did not meet the statutory
definition of a human embryo.86 Furthermore, the memorandum
noted that hESCs “cannot be considered human embryos consistent
with the commonly accepted or scientific understanding of that
term.”87 Subsequently, in 2000, NIH published guidelines for research
on hESCs.88 The NIH guidelines permitted federal funding for hESC
research where the cells were not derived from human embryos created for research purposes.89 Upon taking office in 2001, President
Bush ordered the Secretary of HHS, Tommy Thompson, to evaluate
the new NIH guidelines and to postpone the review of pending hESC
research grant applications.90
port.pdf; National Institutes of Health, NIH Budget, http://www.nih.gov/about/budget.htm
(last visited Mar. 23, 2010).
82 See Korobkin, supra note 2, at 27; see, e.g., Omnibus Appropriations Act, 2009, Pub.
L. No. 111–8, § 509, 123 Stat. 524, 803 (2009); Consolidated Appropriations Act, 2008,
Pub. L. No. 110–161, § 509, 121 Stat. 1844 (2007); Dep’ts of Labor, Health and Human
Servs., and Educ., and Related Agencies Appropriations Act, 2006, Pub. L. No. 109–149,
§ 509, 119 Stat. 2833, 2880 (2005); Consolidated Appropriations Act, 2005, Pub. L. No.
108–447, § 509, 118 Stat. 2809, 3163–64 (2004).
83 See Korobkin, supra note 2, at 27.
84 Gulbransen, supra note 66, at 387; Thompson, supra note 9.
85 Memorandum from Harriet S. Rabb, General Counsel of the Dep’t of Health and
Human Servs., to Harold Varmus, M.D., Director, NIH, on Federal Funding of Research
Involving Human Pluripotent Stem Cells ( Jan. 15, 1999), http://kie.georgetown.edu/nrcbl/
documents/rabbmemo.pdf.
86 Id.
87 Id.
88 Nat’l Insts. of Health Guidelines for Research Using Human Pluripotent Stem Cells,
65 Fed. Reg. 51,976, 51,978–79 (Aug. 25, 2000).
89 Id.
90 Gretchen Vogel, Embryonic Stem Cells: Court Asked to Declare NIH Guidelines Legal, 292
Sci. 1463 (2001).
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On August 9, 2001, President Bush delivered a presidential address
to the nation and announced that his administration would only permit
federal funding for stem cell research on cell lines already in existence
at the time.91 Within hours of the President’s address, the Secretary of
HHS and the Acting Director of NIH issued statements in support of
the policy.92 NIH later withdrew the earlier guidelines for hESC research.93
Despite his announced policy, President Bush never formally issued an executive order that called for the prohibition of funding for
hESC lines created after August 9, 2001 or that banned research that
involved the destruction of embryos.94 In response to Congress’s attempt in 2006 to relax the policy restraints on hESC research by passing
the Stem Cell Research Enhancement Act, President Bush issued the
first veto of his presidency, then in its fifth year.95 In 2007, Congress
tried again to enact the Stem Cell Research Enhancement Act, and,
once more, it was vetoed by President Bush.96 On the same day, President Bush signed an executive order requiring the Secretary of Health
and Human Services to conduct and direct research towards the isolation of hESCs that could be obtained through alternative methods of
derivation.97 This executive order gave priority to and federal funds for
91 See GWB Address, supra note 61. The NIH then created the Human Embryonic Stem
Cell Registry to comply with this policy. This registry originally only listed the hESC lines that
were eligible for federal funding. Nat’l Insts. of Health, Notice on NIH Funding of Research
Using Specified Existing Human Embryonic Stem Cells, NOT-OD-01–058 (Aug. 27, 2001),
http://grants.nih.gov/grants/guide/notice-files/NOT-OD-01–059.html. The NIH later expanded the list, changing the name to the NIH Human Pluripotent Stem Cell Registry pursuant to an Executive Order, to include human pluripotent stem cells that are derived from
non-embryonic sources. Exec. Order No. 13,435, 72 Fed. Reg. 34,591 ( June 22, 2007) [hereinafter EO 13435]; National Institutes of Health, Human Pluripotent Stem Cell Registry
FAQs [Stem Cell Information], http://stemcells.nih.gov/re-search/registry/pluripotent_
faq.asp (last visited Mar. 23, 2010).
92 Press Release, Ruth Kirschstein, Acting Dir. of the Nat’l Insts. of Health, NIH Statement on the President’s Stem Cell Address (Aug. 9, 2001), http://www.nih.gov/news/
pr/aug2001/od-09.htm; Press Release, Tommy G. Thompson, Sec’y, Dep’t of Health and
Human Servs., Regarding the President’s Decision on Human Embryonic Stem Cell Research (Aug. 9, 2001), http://www.hhs.gov/news/press/2001pres/20010809.html.
93 Notice of Withdrawal of NIH Guidelines for Research Using Pluripotent Stem Cells,
66 Fed. Reg. 57,107 (Nov. 14, 2001).
94 Korobkin, supra note 2, at 39.
95 President’s Message to the House of Representatives Returning Without Approval
the “Stem Cell Research Enhancement Act of 2005,” 42 Weekly Comp. Pres. Doc. 1365
( July 19, 2006).
96 President’s Message to the Senate Returning Without Approval the “Stem Cell Research Enhancement Act of 2007,” 43 Weekly Comp. Pres. Doc. 833 ( June 20, 2007).
97 EO 13435, supra note 91.
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identifying new methods of isolating, deriving, producing, and testing
hESCs and still maintained the funding ban on any research on established hESC lines derived from embryos.98
There were indications early on that these restrictions on federal
funding for hESC research would be lifted by the incoming presidential
administration.99 As part of his election platform, and also soon after
taking office, candidate and later President Barack Obama stated his
intent to revisit the issue of federal funding of hESC research beyond
the prescribed cell lines.100 On March 9, 2009, President Obama signed
an executive order that revoked President Bush’s 2007 executive order
and restored federal funding for research on all hESC lines, regardless
of derivation methods.101
3. Hindering the “Progress of Science”?
The confluence of a restrictive government policy on hESC research and the broad scope of the WARF patents have constrained the
ability of many scientists to conduct hESC research.102 While President
Bush, in articulating his policy towards limiting federal funding to only then-established hESC lines, stated that “more than 60 genetically
diverse stem cells lines already exist,”103 hESC researchers were quick
to question not only the accuracy of the number but also the adequacy of the cell lines.104 Indeed, some have stated that the actual
98 See id.
99 Rob Stein, Scientists Await Action on Stem Cells, Wash. Post, Feb. 19, 2009, at A02.
100 See The White House, The Agenda: Technology, http://www.whitehouse.gov/agenda/
technology (last visited Mar. 23, 2010) (advocating greater federal government funding on a
wider array of stem cell lines); Barack Obama & Joe Biden: The Change We Need, Technology,
http://www.barackobama.com/issues/technology (last visited Mar. 23, 2009) (stating campaign
platform on advancing stem cell research through increased funding).
101 Exec. Order No. 13,505, 74 Fed. Reg. 10,667 (Mar. 11, 2009) [hereinafter EO 13505].
102 See generally Constance Holden & Gretchen Vogel, “Show Us the Cells,” U.S. Researchers
Say, 297 Sci. 923 (2002); New Limits on Funding of Stem Cell Research Questioned, 18 Issues
Sci. & Tech. 29 (2001).
103 GWB Address, supra note 61.
104 See Comm. on Guidelines for Human Embryonic Stem Cell Research, Nat’l Research Council, Guidelines for Human Embryonic Stem Cell Research 18 (2005)
[hereinafter NRC Guidelines]; see also Press Release, Am. Ass’n for the Advancement of Sci.,
President Bush’s Stem Cell Policy (Aug. 17, 2001), http://rp.www.aaas.org/spp/cstc/docs/
01-08-17_stemstmt.htm. The National Research Council outlined the potential difficulties
associated with the hESC lines cited to by President Bush:
Not all the original hES cell lines thought to be available for federally funded
research have been viable, nor do they exhibit sufficient genetic diversity for
all research endeavors and possible future clinical use. Furthermore, the
roughly 22 lines now available were grown on mouse-feeder cell layers. . . .
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number of viable stem cell lines at the time may have been less than
five.105
Moreover, the utilization of a combination of Material Transfer
Agreements (MTA) and licensing fees for the WARF patents has proved
onerous on not only commercial hESC endeavors but also on academic
research.106 The MTAs require an initial cash payment and include
commercial reach-through rights, which prohibit commercial research
without another licensing agreement.107 Departing from the convention of a single payment per academic institution, WARF also sought to
charge per cell line and for each individual investigator within an institution.108 Commercial licensing fees ranged from $75,000 to $400,000,
plus royalties on any sales.109 In response to the objections raised by the
scientific community, WARF modified its policy and no longer requires
a license for industry-sponsored research performed at academic or
non-profit institutions.110
B. Biotechnology and EU Standards
The EPO, which is an organ of the European Patent Organization,
governs the granting of patents in Europe.111 The Organization is an
intergovernmental organization that was established by the EPC.112
There are currently 35 member states within the Organization.113 While
the EPO may grant patents, the enforcement of these patents is left to
the individual member states and their respective national laws.114 Several European Patent Organization member states also have their own
The presence of animal feeder cells increases the risk of transfer of animal viruses and other infectious agents to humans that receive the hES cells and in
turn to many others.
NRC Guidelines, supra.
105 Gerald D. Fischbach & Ruth L. Fischbach, Stem Cells: Science, Policy, and Ethics, 114 J.
Clinical Investigation 1364, 1368 (2004); see Holden & Vogel, supra note 102, at 923.
106 Kenneth S. Taymor, Christopher T. Scott & Henry T. Greely, The Paths Around Stem
Cell Intellectual Property, 24 Nature Biotechnology 411, 411 (2006).
107 Id.; Burning Bridges, supra note 73, at 2.
108 Burning Bridges, supra note 73, at 2.
109 Id.
110 Press Release, WARF, Wisconsin Alumni Research Foundation Changes Stem Cell
Policies to Encourage Greater Academic, Industry Collaboration ( Jan 23, 2007), http://
www.warf.org/news/news.jsp?news_id=209.
111 EPC, supra note 27, art. 4(2).
112 Id.
113 European Patent Office, Member States of the European Patent Organisation,
http://www.epo.org/about-us/epo/member-states.html (last visited Mar. 23, 2010).
114 EPC, supra note 27, art. 74.
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independent patent offices, which grant national patents.115 Furthermore, inventors must still file individual national patent applications in
those states that are not signatories to the EPC.116 The European Parliament and EU Council issued a Biotech Directive, which prohibited
patents for inventions that used human embryos for commercial purposes, to harmonize divergent patent laws between the EU and EPO
member states.117 This Biotech Directive was then incorporated into
the EPC.118 All twenty-seven EU member states have implemented its
provisions into their domestic laws.119
1. WARF European Patent Application
While fetal and adult stem cells are patentable in Europe,120 the
issue of whether hESCs are patentable had not been settled when
WARF sought just such a patent.121 The patent application was initially
refused by the EPO on the grounds that it was prohibited under Article
53(a) and Rule 28(c) of the EPC.122 Article 53(a) excludes inventions
that would be contrary to “ordre public” or morality.123 Rule 28(c) further specifies that patents cannot be granted for inventions concerning
the “use of human embryos for industrial or commercial purposes.”124
Upon appeal, the EPO Technical Board of Appeal (TBA) referred four
questions to the EPO EBoA, as permitted under Article 112(a) of the
EPC.125 Decisions by the EBoA are binding on the EPO.126
The TBA asked the EBoA to clarify several issues: (1) whether Rule
28(c) was applicable to the WARF patent application, given that the
application had been filed prior to the entry into force of the rule; (2)
if Rule 28(c) was in force, then is the rule applicable to the WARF application even if the method is not part of the claims?; (3) if the answers to questions 1 and 2 were no, did Article 53(a) forbid the patent115 Marco T. Connor & Lin Yasong, How to Get Patent Protection in Europe?, 90 J. Pat. &
Trademark Off. Soc’y 169, 170–79 (2008).
116 Id.
117 See Biotech Directive, supra note 27.
118 See id.; EPC, supra note 27, R. 28.
119 European Union, State of Play of the Implementation of Directive 98/44/EC ( Jan.
15, 2007), http://ec.europa.eu/internal_market/indprop/docs/invent/state-of-play_en.pdf
[hereinafter State of Play].
120 See EPC, supra note 27, R. 29(2).
121 See generally EBoA Decision, supra note 26.
122 Id. at 3.
123 EPC, supra note 27, art. 53(a).
124 Id. R. 28(c).
125 Id. art. 112(a); EBoA Decision, supra note 26, at 3.
126 EPC, supra note 27, art. 112(3).
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ing of such claims?; and (4) is it relevant that after the filing date, the
same products could be obtained without using a method that necessarily involved the destruction of human embryos?127
On November 25, 2008, the EPO EBoA issued its decision. In addressing the first question, the EBoA ruled that Rule 28(c) was applicable to pending patent applications because it did not require transitional provisions for pending cases.128 As such, the rule must encompass
the pending patent applications.129 With respect to question 2, the
EBoA noted that the text of Rule 28(c) is not directed toward the claims
but refers to “inventions” as a whole.130 Since questions 1 and 2 were
answered in the affirmative, the EBoA did not reply to the third question.131 The EBoA answered the final question by ruling that technical
developments that became public after the filing date were irrelevant to
determining whether a claim violates Rule 28(c).132 The EBoA concluded that its decision was “not concerned with the patentability in
general of inventions relating to human stem cells or human stem cell
cultures” but that it prohibited patents for “inventions concerning [human stem cell cultures] which can only be obtained by the use involving
their destruction of human embryos.”133
2. United Kingdom—A Nuanced Perspective
The United Kingdom Intellectual Property Office (U.K.-IPO) has
issued its own guidance on the patentability of biotechnological inventions.134 Similar to the EPO, they note that certain processes and things
are not patentable for commercial purposes because they would be
contrary to public morality, where the excluded inventions encompass
“the commercial or industrial use of human embryos.”135
127 EBoA Decision, supra note 26, at 1–2.
128 Id. at 17–19, 30.
129 See id.
130 Id. at 19–28, 30; EPC, supra note 27, R. 28(c).
131 See EBoA Decision, supra note 26, at 28, 30.
132 Id. at 28–30.
133 Id. at 29–30.
134 U.K. Intellectual Property Office, Intellectual Property Office—Biotechnological
Inventions – Excluded Inventions, http://www.ipo.gov.uk/pro-types/pro-patent/p-policy/
p-policy-biotech/p-policy-biotech-excluded.htm (last visited Mar. 23, 2010).
135 Id.
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Notwithstanding the public morality criteria, the U.K.-IPO currently permits patent applications for pluripotent hESCs.136 The U.K.IPO draws a distinction between totipotent and pluripotent hESCs, stating that human totipotent cells, unlike pluripotent hESCs, can potentially develop into an entire human body.137 The U.K.-IPO thus holds
them unpatentable because “the human body at various stages of its
formation and development is excluded from patentability.”138
III. Analysis
There are several rationales for the pursuit of global harmonization
of patent laws and the creation of a unified patent system.139 Harmonization would bring increased efficiency to patent offices and certainty to
patentees.140 In addition, harmonization could reduce disparate patent
status across states, where an invention would be granted a patent in one
state, but a parallel patent application in another state would be denied.141 By setting a common standard, patent offices would be able to
coordinate their prior art searches and patent application examinations.142 This effect would not only reduce the overall cost to the patent
offices, but it would also reduce the expenses of the patent applicant, as
the applicant need not be concerned with addressing varying national
patent standards.143
Moreover, uniformity may enhance the effectiveness in enforcing
intellectual property rights.144 This increased certainty in the value and
security of global intellectual property rights may also lead to greater
disclosures by inventors, which ultimately benefits the public.145 Indeed,
it has been proposed that harmonization would balance the incentive
136 U.K. Intellectual Property Office, Intellectual Property Office—Inventions Involving Human Embryonic Stem Cells (Feb. 3, 2009), http://www.ipo.gov.uk/pro-types/propatent/p-law/p-pn/p-pn-stemcells-20090203.htm (last visited Mar. 23, 2010).
137 Id.
138 Id.; see Patents Act, 1977, Schedule A2(3)(a) (Eng.).
139 See generally Donald S. Chisum, The Harmonization of International Patent Law, 26 J.
Marshall L. Rev. 437 (1993); Annelise M. Seifert, Will the United States Take the Plunge into
Global Patent Law Harmonization? A Discussion of the United States’ Past, Present, and Future
Harmonization Efforts, 6 Marq. Intell. Prop. L. Rev. 173 (2002).
140 See Chisum, supra note 139, at 449–52; Seifert, supra note 139, at 200.
141 Chisum, supra note 139, at 449–50.
142 Id. at 451.
143 Id.
144 Id.
145 Id.
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system and “no country will take a ‘free ride’ on the investment in research and development that other countries’ patent systems induce.”146
While harmonization of patent laws would provide much needed
clarity to patent holders seeking to protect their intellectual property
rights globally, there are also disincentives to states seeking to adopt
uniform patent laws.147 These disincentives may include initial difficulties in achieving agreement between states on precisely what these patent laws should be and later problems with altering undesirable or obsolete provisions.148
A. Moral Relevance in Stem Cell Patentability
Unlike the EU, the United States presently divorces the issue of
morals from that of whether stem cells are patentable subject matter.149
Despite this formal separation, the United States can interject morality
and limit what inventions may be patentable through the enactment of
legislation.150 The mere granting of a patent does not necessarily result
in the practice of the patented invention.151 States may choose to enact
legislation that prevents the application or dissemination of the invention.152
A major impediment to injecting morals into determining patentability is that any such criteria are necessarily subjective and may not
be universal in scope.153 Morality may differ from state to state depending on a number of factors, including ethics and cultural influences.154
Even within the EU itself, questions have been raised about how to
146 Id. at 450–51; see also James A. Sfekas, Controlling Business Method Patents: How the
Japanese Standard for Patenting Software Could Bring Reasonable Limitations to Business Method
Patents in the United States, 16 Pac. Rim L. & Pol’y J. 197, 223–24 (2007).
147 Chisum, supra note 139, at 452–54; Paul H. Jensen, Alfons Palangkaraya & Elizabeth
Webster, Disharmony in International Patent Office Decisions, 15 Fed. Cir. B.J. 679, 683 (2006).
148 Chisum, supra note 139, at 452–53; Jensen et al., supra note 147, at 683–84.
149 See generally Juicy Whip, Inc. v. Orange Bang, Inc., 185 F.3d 1364, 1368 (Fed. Cir.
1999); EPC, supra note 27, art. 53(a); ’913 Patent, supra note 23; ’806 Patent, supra note 23;
Media Advisory, supra note 44.
150 See Juicy Whip, 185 F.3d at 1368; Diamond v. Chakrabarty, 447 U.S. 303, 317 (1980).
151 UNCTAD-ICTSD, Resource Book on TRIPS and Development 382–83 (2005).
152 Korobkin, supra note 2, at 96; Rutz & Yeats, supra note 2, at 384.
153 UNCTAD-ICTSD, supra note 151, at 375 (noting that “[t]he concept of morality is
relative to the values prevailing in a society. Such values are not the same in different cultures and countries, and change over time”); see also Chisum, supra note 139, at 438 (“[N]o
harmonization model will conform exactly to the laws of any country. . . . It is possible that
consensus cannot be reached . . . .”).
154 See UNCTAD-ICTSD, supra note 151, at 375; Chisum, supra note 139, at 453.
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identify the European morality standard.155 Further inconsistency has
been noted with respect to the two distinct tests that have been used for
assessing patent challenges based on morality under the EPC.156 One
test relies on whether there would be “public abhorrence” over the
granting of a patent.157 The second test examines whether the patent
grant would be “unacceptable” under “conventionally accepted standards of conduct of European culture.”158 It is not difficult to see where
an invention might not reach the standard of “public abhorrence” but
could still be found “unacceptable” and be denied a patent.159
An additional consideration is whether patent offices themselves
would be reluctant or have sufficient guidance to make determinations
on whether an invention overcomes the morals hurdle to obtaining a
patent.160 Under EPO patent examination rules, the examiner would
look first to see if an invention is within the list of specifically exempted
inventions and then consider the morality issue.161 Commentators have
noted that a temporal ambiguity exists for the morality assessment.162 It
is unclear as to whether this determination should be performed at the
time of the patent application or after the granting of the patent.163
This ambiguity raises additional issues concerning if, by whom, and
when opponents of the patents should be notified.164
Should the United States choose to harmonize its patent laws with
those of the EU and introduce moral hurdles to patentability, there
may well be confusion over precisely which standards should prevail.165
155 See Aurora Plomer, University of Nottingham: School of Law, Stem Cell
Patents: European Patent Law and Ethics Report 1, 111–12 (2006), http://www.nottingham.ac.uk/law/StemCellProject/project.report.pdf [hereinafter Nottingham Report]
(summarizing several different perspectives of what constitutes European morality, including “common European concepts,” “fairly widely shared perceptions,” or as laid out in the
European Convention on Human Rights and Fundamental Freedoms).
156 Donna M. Gitter, Led Astray by the Moral Compass: Incorporating Morality into European
Union Biotechnology Patent Law, 19 Berkeley J. Int’l L. 1, 21–36 (2001).
157 Id. at 21–27.
158 Id. at 21.
159 See id.
160 Benjamin D. Enerson, Protecting Society from Patently Offensive Inventions: The Risk of
Reviving the Moral Utility Doctrine, 89 Cornell L. Rev. 685, 709–13 (2004); see Gitter, supra
note 156, at 36–43.
161 EPO Guidelines, supra note 52, pt. C, ch. II-7.1 to 7.2, ch. IV-4.1; Nottingham Report, supra note 155, at 107–08.
162 Enerson, supra note 160, at 712; Gitter, supra note 156, at 39.
163 Enerson, supra note 160, at 712; Gitter, supra note 156, at 39.
164 See Enerson, supra note 160, at 712; Gitter, supra note 156, at 39.
165 See Nottingham Report, supra note 155, at 51–52, 111–12, 133; Heike VogelsangWenke, Patenting of Stem Cells and Processes Involving Stem Cells According to the Rules of the
European Patent Convention, 23 Biotechnology L. Rep. 155, 158 (2004).
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In instances where a definitive European wide moral standard has yet
to be established, it has been suggested that patents be granted and
individual states can then invalidate the patents, if necessary, according
to their national norms.166 Moreover, cultural shifts may also affect morality standards over time.167 Allowing current measures of morality to
influence the patenting of innovations would introduce more unpredictability into the patent system.168 Patents, once granted, may run the
risk of revocation.169 Indeed, in 2006, the Bundespatentgericht/BPatG
(German Federal Patent Court) partially revoked a 1999 patent directed to a method for producing ESCs.170 Despite the fact that the patent did not claim industrial or commercial use of human embryos, the
BPatG nullified the patent claims directed toward ESC lines derived
from human embryos while upholding the claims for ESCs derived
from other sources.171 Given that Germany incorporated the Biotech
Directive into the German Patent Act in 2004,172 and that the patent
itself was granted in 1999, this decision was a retroactive application of
the moral patentability exclusion for inventions.173
Amid these concerns, the application of moral criteria to U.S. patentability determinations will likely only add uncertainty into the patent
application process.174 Furthermore, morality standards are not static,
and meaningful consensus on such moral patentability criteria may be
166 Nottingham Report, supra note 155, at 112–13.
167 UNCTAD-ICTSD, supra note 151, at 375.
168 See Enerson, supra note 160, at 714–15.
169 See Nottingham Report, supra note 155, at 112–13.
170 Bundespatentgericht [BPatG] [Federal Patent Court] Dec. 5, 2006, ref. no. 3 Ni
42/04 (F.R.G.) [hereinafter BPatG Decision]; Stefan Danner, Stem Cell Patent Partially Revoked,
Managing Intell. Prop., May 1, 2007, http://www.managingip.com/Article/1377031/
Stem-cell-patent-partially-revoked.html; see Neurale Voläuferzellen, Verfahren zu ihrer Herstellung und ihre Verwendung zur Therapie von neuralen Defekten [Neural Precursor Cells,
Method for the Production and Use Thereof in Neural Defect Therapy], F.R.G. Patent No.
DE 19756864 (issued Apr. 29, 1999).
171 BPatG Decision, ref. no. 3 Ni 42/04; Thomas Friede, German Federal Patent Court Decided on the Morality of Deriving Cells (3 Ni 42/04—Greenpeace v. Oliver Brüstle) from Human
Embryonic Stem (ES) Cells, VI Bardehle Pagenberg IP Rep. 3 (2006), http://www.bardehle.
com/uploads/media/IP_Report_2006_VI.pdf.
172 State of Play, supra note 119, at 1–2; Franz-Josef Zimmer & Svenja Sethmann, Act
Implementing the Directive on the Legal Protection of Biotechnological Inventions in Germany (BioPatG), 24 Biotechnology L. Rep. 561, 561 (2005).
173 Friede, supra note 171, at 3. The German Patents Act, in language that mirrors that of
the Biotech Directive, prohibits the granting of patents for inventions involving the use of
human embryos for industrial or commercial purposes. Das deutsche Patentgesetz [German
Patents Act], Dec. 18, 1980, BGBl. I, § 2, available at http://www.gesetze-im-internet.de/bundesrecht/patg/gesamt.pdf.
174 See Enerson, supra note 160, at 714–15.
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difficult to reach.175 The potential for retroactive revocation of patents,
based solely on newly established standards, may also serve to discourage patentees.176 Higher litigation costs may result from increased patent revocation attempts, which may be encouraged by the enactment of
moral hurdles to patentability.177
B. Confluence of Policy and Patents: Impact on Stem Cell Research
Patents are granted to encourage innovation and as a reward for
disclosing the invention.178 This quid pro quo of sufficient disclosure
for the monopoly granted to the patentee has been a fundamental
principle of the patent system.179 The intersection of patent law, legislative policy, and science has retarded the progress of stem cell research,
where privatization of resources, concomitant with a withdrawal of federal funding, has impeded research and development.180
1. Policy and WARF Factors Have Hindered U.S. Stem Cell Research
Given the broad scope of the patent claims over the development
of hESCs and over hESCs themselves, WARF is able to prohibit any derivation, use, importation, or research into hESC lines in the United
States unless interested parties first enter into licensing agreements.181
175 Margo A. Bagley, Patent First, Ask Questions Later: Morality and Biotechnology in Patent
Law, 45 Wm. & Mary L. Rev. 469, 539–45 (2003); see also Enerson, supra note 160, at 714–
15.
176 See Bagley, supra note 175, at 539–45; Adam Inch, The European Patent Convention: A
Moral Roadblock to Biotechnological Innovation in Europe, 20 Hous. J. Int’l L. 203, 215–16
(2007); Robin Beck Skarstad, The European Union’s Self-Defeating Policy: Patent Harmonization
and the Ban on Human Cloning, 20 U. Pa. J. Int’l Econ. L. 353, 371–72 (1999). In Patlex
Corp. v. Mossinghoff, the Federal Circuit held that retroactive application of the reexamination statute was constitutional and did not violate the due process clause because it was in
the class of curative statutes “designed to cure defects in an administrative system.” 758
F.2d 594, 603 (Fed. Cir.), modified, 771 F.2d 480 (Fed. Cir. 1985).
177 See Skarstad, supra note 176, at 371–72.
178 Eisenberg, supra note 4, at 1017.
179 Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956, 970 (Fed. Cir. 2002); Universal
Oil Prods. Co. v. Globe Oil & Ref. Co., 322 U.S. 471, 484 (1944).
180 See Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 Sci. 698, 698 (1998); Aurora Plomer et. al., Challenges to
Human Embryonic Stem Cell Patents, 2 Cell Stem Cell 13, 13–15 (2008); Patrick L. Taylor,
The Gap Between Law and Ethics in Human Embryonic Stem Cell Research: Overcoming the Effect of
U.S. Federal Policy on Research Advances and Public Benefit, 11 Sci. Eng’g Ethics 589, 600–05
(2005).
181 Plomer et al., supra note 180, at 13; Jeanne F. Loring & Cathryn Campbell, Intellectual Property and Human Embryonic Stem Cell Research, 311 Sci. 1716, 1717 (2006); Burning
Bridges, supra note 73, at 2.
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Additionally, due to the essential nature of having access to and the
ability to generate new hESCs for research purposes, WARF’s patents
are substantial impediments to the ideal of granting patents to “promot[e] the Progress of Science.”182 Granting a monopoly on a basic
scientific research tool can severely limit subsequent research.183 Commentators have warned of the danger in granting overly broad patents
in biotechnology because it enables “the individual or firm who first
came up with a particular practical application to control a broad array
of improvements and applications.”184 Innovation and discoveries in
biotechnology are dependent on building upon fundamental techniques.185 The granting of a patent that covers all hESC lines without
regard to the method of derivation does little to encourage subsequent
innovation and improvements.186 In this instance, the public benefit is
not at all commensurate with the monopoly rights.187
While financial interests may provide incentive for patent holders to
license their innovations for commercial purposes, academic researchers
have often been spared the full brunt of transaction costs associated with
utilizing patented innovations.188 With the increased interest by academic institutions in patenting and protecting their intellectual property,
there is less of a distinction between academic and purely commercial
entities.189 Although the WARF patents were a significant hindrance to
academic stem cell researchers, the limiting of federal funding by President Bush was equally, if not more, onerous.190 The combination of these
182 U.S. Const. art I, § 8, cl. 8.
183 Heller & Eisenberg, supra note 180, at 698. “A proliferation of intellectual property
rights upstream may be stifling life-saving innovations further downstream in the course of
research and product development.” Id.
184 Robert P. Merges & Richard R. Nelson, On the Complex Economics of Patent Scope, 90
Colum. L. Rev. 839, 884 (1990).
185 See Heller & Eisenberg, supra note 180, at 698.
186 See Merges & Nelson, supra note 184, at 904. “If the initial patent is granted on the
product, rather than the process for making it, subsequent process research by others will
be discouraged. This is a good example of a prospect that will likely reduce competition
for improvements.” Id.
187 See id. at 843–44.
188 See Heller & Eisenberg, supra note 180, at 698 (noting that intellectual property
claims now exist on research that would have previously been in the public domain); Loring & Campbell, supra note 181, at 1717 (stating that the NIH signed agreements with
WARF for hESC research rights and WARF agreed to not impose more restrictive terms on
non-profit institutions); Arti K. Rai & Rebecca S. Eisenberg, Bayh-Dole Reform and the Progress of Biomedicine, 66 Law & Contemp. Probs. 289, 294 (2003).
189 See Margo A. Bagley, Academic Discourse and Proprietary Rights: Putting Patents in the
Proper Place, 47 B.C. L. Rev. 217, 218–19 (2006); Heller & Eisenberg, supra note 180, at
698; Rai & Eisenberg, supra note 188, at 294.
190 See GWB Address, supra note 61.
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two factors had effects on not only issues pertaining to seeking new
sources of research funds but also where and how stem cell research
would be pursued.191
Federal funds have consistently accounted for the majority of academic funding for scientific research and development.192 In 2006, federal support accounted for approximately 63% of the funding spent by
academic institutions on research and development.193 The funding
limitations created by President Bush’s stem cell policy forced academic
institutions and researchers to carefully segregate any research conducted on non-sanctioned hESCs from all other federally funded research occurring in their facilities.194 Essentially, no federally funded
equipment, space, materials, supplies, or staff could be used for any
such research.195 In practice, the inability to utilize existing laboratory
equipment and the difficulties associated with ensuring strict separation of consumables and staff required institutions to seek and use private funds to establish duplicate research facilities for the sole purpose
of conducting stem cell research.196 In response to the federal policy,
additional funding for hESC research was authorized by eight states,
including California and New York.197
While early fears of vast numbers of stem cell researchers leaving
the United States for foreign institutions have been unfounded, several
prominent stem cell researchers have left to pursue their research in
Asia.198 Singapore, with more liberal research laws, has devoted government resources to establishing itself as a leader in stem cell research
and enticing notable scientists there.199 By contrast, the diverse stem
cell research regulations among the EU member states, ranging from
permissive to prohibitive towards embryo research and hESC deriva191 See Taylor, supra note 180, at 596–98.
192 Ronda Britt et al., Nat’l Sci. Bd., Science and Engineering Indicators 5–11
(2008), available at http://www.nsf.gov/statistics/seind08/toc.htm.
193 Id.
194 Korobkin, supra note 2, at 55; Taylor, supra note 180, at 597–98.
195 See Korobkin, supra note 2, at 55; Taylor, supra note 180, at 597–98.
196 See Korobkin, supra note 2, at 55; Taylor, supra note 180, at 597–98; see also Harvard
Stem Cell Institute, Frequently Asked Questions, http://www.hsci.harvard.edu/frequentlyasked-questions (last visited Mar. 23, 2010) (stating that the Institute is supported by private funding, which allows it to support research activities that could not be supported by
NIH funding).
197 Korobkin, supra note 2, at 54; John Wagner & Rosalind S. Helderman, U.S. Stem
Cell Funds Freed; Md. Debates Its Own, Wash. Post, Mar. 10, 2009, at B01.
198 Korobkin, supra note 2, at 49–50.
199 Wayne Arnold, Science Haven in Singapore; Luring Top Stem Cell Researchers with Financing and Freedom, N.Y. Times, Aug. 17, 2006, at C1.
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tion, may have been deterrents to researchers dismayed by U.S. funding limitations.200
2. Current U.S. Stem Cell Policy
On March 8, 2009, within seven weeks of taking office, President
Obama revoked the eight-year old policy enacted by President Bush
that limited federal funding of stem cell research and the 2007 executive order directed toward developing alternative methods of deriving
hESCs.201 President Obama ordered the NIH to “support and conduct
responsible, scientifically worthy human stem cell research, including
human embryonic stem cell research” and to establish guidelines to
that effect in 120 days.202 This policy change will now permit federal
grants to be used for research on hESC lines created after the August 9,
2001, cutoff date set by President Bush.203 In his accompanying remarks, President Obama stated, “In recent years, when it comes to stem
cell research, rather than furthering discovery, our Government has
forced what I believe is a false choice between sound science and moral
values. In this case, I believe the two are not inconsistent.”204 Reactions
from the scientific community were overwhelmingly positive.205 Inter-
200 See Lori P. Knowles, A Regulatory Patchwork—Human ES Cell Research Oversight, 22
Nature Biotechnology 157, 157–61 (2004); Rutz & Yeats, supra note 2, at 386–87.
201 EO 13505, supra note 101.
202 Id.
203 See id. Nine months after President Obama issued the Executive Order that revoked
President Bush’s stem cell funding limitations, on Dec. 2, 2009, the NIH approved the first
hESC lines for use in NIH-funded research. Thirteen new hESC lines were approved while
another ninety-six lines have been submitted for review to determine eligibility for inclusion
in the NIH Human Embryonic Stem Cell Registry. Press Release, NIH Office of the Director,
First Human Embryonic Stem Cell Lines Approved for Use Under New NIH Guidelines
(Dec. 2, 2009), http://www.nih.gov/news/health/dec2009/od-02.htm [hereinafter NIH
Dec. PR].
204 Remarks on Signing an Executive Order Removing Barriers to Responsible Scientific
Research Involving Human Stem Cells and a Memorandum on Scientific Integrity, Daily
Comp. Pres. Doc. DCPD200900135 (Mar. 9, 2009), available at http://www.gpoaccess.gov/
presdocs/2009/DCPD200900135.pdf.
205 Erika Check Hayden, Obama Overturns Stem Cell Ban, Nature News, Mar. 9, 2009,
http://www.nature.com/news/2009/090309/full/458130a.html; Lisa Kamen & Meagan
Comerford, International Society for Stem Cell Research, ISSCR Scientists Elated for Future
of Human Embryonic Stem Cell Research After Obama Lifts Funding Ban, (Mar. 9, 2009),
http://www.isscr.org/press_releases/obama_repeals.html; Letter from Alan I. Leshner, Chief
Executive Officer, Am. Ass’n for the Advancement of Sci. to Barack Obama, U.S. President
(Mar. 9, 2009), http://www.aaas.org/news/releases/2009/media/0309stem_cell_letter.pdf.
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estingly, scientists in the U.K. have expressed some reservations that the
new policy will lead more stem cell researchers to the United States.206
Although the federal limitations have now been lifted, it will likely
take approximately a year for the first stem cell research grants to be
approved under this new policy and for such funds to reach researchers.207 Scientists utilizing federal funds will no longer have to carefully
demarcate expenditures for hESC research.208 Nonetheless, federal
funding is still prohibited for the purposes of deriving new hESC lines
from embryos, since the Dickey Amendment is still in effect.209 Until
Congress acts to eliminate this bar on creating hESC lines, researchers
will still be dependent upon private funding or must license established
hESC lines.210
Conclusion
While harmonization of patent laws will bring uniformity to global
intellectual property protection, the application of moral criteria to
patentability standards would only serve to increase uncertainty due to
the great variability in cultural and social mores. As seen in the EU, and
despite the implementation of the Biotech Directive, there are still interpretative differences over stem cell patentability standards. Moreover, in light of the monopoly that patents provide and the importance
of basic research in biotechnology, a balance must be struck between
incentives to patentees and drawbacks to society as a whole.
Although the employment of moral criteria in U.S. policy is not
novel, its application to the allocation of federal funding has been to the
detriment of basic scientific endeavors. In combination with the overly
expansive scope of the WARF patents, the funding limitations unduly
constrained hESC research within the United States. As the WARF pat206 Michelle Roberts, What Next for Stem Cell Research?, BBC News, Mar. 9, 2009,
http://news.bbc.co.uk/1/hi/health/7932611.stm.
207 See Karen Kaplan, What Obama’s Executive Order on Stem Cells Means, L.A. Times, Mar.
10, 2009, at A16. As of Dec. 2, 2009, more than thirty NIH grants funded in 2009 had been
restricted due to the lack of approved hESC lines in the NIH hESC registry. With the approval of the NIH and if the newly available hESC lines are appropriate for the research
projects, these researchers can then proceed with their research. NIH Dec. PR, supra note
203.
208 See Kaplan, supra note 207, at A16; Korobkin, supra note 2, at 55.
209 Kaplan, supra note 207; Sheryl Gay Stolberg, Obama Is Leaving Some Stem Cell Issues to
Congress, N.Y. Times, Mar. 9, 2009, at A1.
210 See Korobkin, supra note 2, at 55; Taylor, supra note 180, at 597–98. Upon the expiration of the WARF patents in 2015, the broad intellectual property constraints on hESC
line derivation will also be lifted. See ’913 Patent, supra note 23; ’806 Patent, supra note 23;
’780 Patent, supra note 21.
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ents will not expire for many years to come, it remains to be seen what
effects the new U.S. funding policy will have on hESC research.
TO HAVE AND TO HOLD: THE FUTURE OF
DNA RETENTION IN THE UNITED
KINGDOM
Jason M. Swergold*
Abstract: The United Kingdom’s National DNA Database, in existence
since 1995, is now in jeopardy after the European Court of Human Rights
ruled that the United Kingdom’s DNA retention policy violates a person’s
right to a private life under the European Convention on Human Rights.
The retention program is the most sweeping in the world and had previously withstood a number of challenges in British courts. The ECHR decision now presents the United Kingdom with the problem of complying
with the judgment while protecting the Database it has built over the last
three decades. The question that remains is whether the United Kingdom
can do both.
Introduction
On December 4, 2008, the European Court of Human Rights
(ECHR), sitting as a Grand Chamber, unanimously held that the United
Kingdom (U.K.) had violated the right to a private life under Article 8
of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (Convention) by retaining the fingerprints and
DNA samples1 of individuals “suspected but not convicted of offences.”2
The United Kingdom’s National DNA Database (Database) is believed
to be the largest in the world3 and had previously withstood a challenge
in the House of Lords from the same applicants who have now suc* Jason M. Swergold is the Executive Note Editor for the Boston College International &
Comparative Law Review.
1 For purposes of this Note, the term “DNA samples” refers to both DNA samples and
profiles, unless otherwise indicated (i.e. “DNA profiles”). For a discussion of the difference
between a DNA sample and a DNA profile, see R (S & Marper) v. Chief Constable of the S.
Yorkshire Police, (2004) 1 W.L.R. 2196, 2200 (H.L.) (U.K.) (“The samples consist of what
is taken by the police . . . , and any sub-samples or part samples retained from these after
analysis. The DNA profiles are digitised information and it is this digitised information
that is stored electronically . . . together with details of the person to whom it relates.”).
2 S & Marper v. United Kingdom, App. Nos. 30562/04 & 30566/04, 48 Eur. H.R. Rep.
50, 1202 (2009).
3 DNA and Human Rights: Throw It Out, Economist, Dec. 6, 2008, at 44.
179
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ceeded in the ECHR.4 As a result of the Court’s ruling, the U.K. must
determine the appropriate method for implementing the decision so as
to secure the right to privacy for the applicants and for other similarly
situated persons.5
The contrasting decisions in the ECHR and in the House of Lords
illuminate a tension that exists between ECHR jurisprudence and that
of the national courts: namely, that when interpreting Convention
rights, the ECHR considers the prevailing attitudes across the Contracting States,6 yet this may not accurately reflect the attitudes and concerns present in the forum state.7 The question that now remains is
whether this recent decision has sounded the death knell for the United Kingdom’s Database8 or whether the United Kingdom can modify
its current retention procedures to comply with the decision.9
Part I of this Note traces the history of the statutory scheme that
governs the taking and retention of DNA samples and provides the
framework for the Database. This section also looks at public opinion in
the United Kingdom with regards to the Database. Part II discusses both
the House of Lords and the ECHR’s reasoning in their respective decisions in the Marper case. It then contrasts the different understandings
of a right to privacy in the United Kingdom and under the Convention
and ECHR jurisprudence. Finally, Part III criticizes the ECHR’s decision
in Marper and analyzes whether there are feasible options for continuing
to retain the DNA of individuals who have not been convicted.
I. Background
A. The Database Legislation
The current state of the United Kingdom’s National DNA Database is the result of a series of acts passed by Parliament that govern the
collection and retention of samples.10 Beginning in 1984, these acts
sought first to clarify the power of the police as it existed under the
4 See Marper, 1 W.L.R. at 2210 (H.L.).
5 See S & Marper, 48 Eur. H.R. Rep. at 1204.
6 See Marper, 1 W.L.R. at 2217 (H.L.) (Lord Rodger of Earlsferry).
7 See id. at 2216 (Lord Rodger of Earlsferry).
8 See DNA and Human Rights: Throw It Out, supra note 3, at 44.
9 See DNA Database ‘Breach of Rights,’ BBC News, Dec. 4, 2008, http://news.bbc.co.uk/
2/hi/uk_news/7764069.stm (last visited Mar. 9, 2010).
10 See Genetic Testing and the Criminal Law 187–88 (Don Chalmers ed., 2005).
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DNA Database Retention Policy in the U.K.
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common law11 and second, to expand upon those powers.12 Parliament’s initial announcement of police power in this area was the Police
and Criminal Evidence Act 1984 (PACE), which contained provisions
granting the police the power to collect both fingerprints13 and intimate14 and non-intimate samples.15 The first section of PACE dealing
with fingerprints provided for the collection of fingerprints from persons convicted of a recordable offense who had yet to have their prints
taken.16 As a precondition for the taking of all fingerprints from suspects (as opposed to offenders), the police had to obtain appropriate
consent except when certain conditions were met.17 A police officer of
at least the rank of superintendent could authorize the taking of fingerprints18 if he had “reasonable grounds for suspecting the involvement of the person whose fingerprints [were] to be taken in a criminal
offense”19 and if he believed “that his fingerprints [would] tend to confirm or disprove his involvement.”20
The taking of samples was governed by similar provisions, but with
two notable differences.21 Samples, both intimate and non-intimate,
could only be taken if there were a reasonable belief that the person was
involved in a serious arrestable offense, as opposed to a recordable offense.22 Moreover, intimate samples could not be collected unless the
11 See Mike Redmayne, The DNA Database: Civil Liberty and Evidentiary Issues, Crim. L.R.
437, 442 (1998).
12 See Explanatory Notes to the Criminal Justice and Police Act, 2001, para. 210 (explaining the new retention policy). See generally id. (noting that the Criminal Justice and
Public Order Act 1994 widened the police’s power to take samples).
13 Police and Criminal Evidence Act, 1984, c. 60, § 61.
14 Id. § 62. Parliament defined intimate samples as “a sample of blood, semen or any
other tissue fluid, urine, saliva or pubic hair, or a swab taken from a person’s body orifice.”
Id. § 65.
15 Id. § 63. Parliament defined non-intimate samples as:
a sample of hair other than pubic hair; a sample taken from a nail or from
under a nail; a swab taken from any part of a person’s body other than a body
orifice; a footprint or a similar impression of any part of a person’s body other than a part of his hand.
Id. § 65.
16 Id. § 27(1).
17 Id. § 61(1). For the definition of appropriate consent, see id. § 65.
18 Id. § 61(3)(a).
19 Police and Criminal Evidence Act, 1984, c.60, § 61(4)(a).
20 Id. § 61(4)(b).
21 See id. §§ 62–63.
22 Id. §§ 62(2)(a), 63(3)(a). An arrestable offense for purposes of PACE is generally
defined as an offense with a sentence fixed by law and any offense that carries a minimum
sentence of five years imprisonment for persons over the age of 21. Id. § 24(1). A recordable offense is one “for which the conviction may be recorded in National Police Records.
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person consented;23 non-intimate samples could be taken absent consent under the same restrictions as fingerprints.24 With the guidelines
for collection laid out, Parliament next addressed the issue of retaining
the fingerprints and samples.25 The provision was very straightforward:
fingerprints and samples were to be destroyed if the person were cleared
of the offense, not prosecuted, or not suspected of having committed
the crime.26
While PACE provided the early foundation for sample collection, it
took ten years before the proper framework was in place to support the
creation of the Database.27 In 1994, Parliament enacted the Criminal
Justice and Public Order Act (CJPO 1994) in response to developments
in DNA profiling and to ensure that criminal investigations were deriving “the maximum benefit from DNA.”28 The CJPO 1994, which indirectly became the statutory foundation for the Database29 and was the
first set of amendments to PACE,30 significantly expanded the power of
the police in a number of ways.31 First, the police were now permitted
to collect intimate (subject to consent) and non-intimate samples from
a person suspected of any recordable offense.32 Since 1994, this provision
Currently, this includes any offense, which upon conviction, carries a sentence of imprisonment, and certain non-imprisonable offenses.” Kent Police, N53 Police Reference:
Intimate, Non-intimate, and DNA Database Samples § 3.7, http://www.kent.police.uk/
About%20Kent%20Police/policies/n/n053.html (last visited Mar. 16, 2010).
23 Police and Criminal Evidence Act, 1984, c.60, § 62(1)(b).
24 See id. § 63(3).
25 Id. § 64.
26 See id. §§ 64(1)(a) (cleared of the offense), 64(2)(b) (not prosecuted), 64(3)(b)
(not suspected of having committed the crime). In addition, Parliament provided an extra
layer of protection by granting the person in question the right to witness the destruction
of his/her samples and fingerprints upon request. See id. § 64(6).
27 See generally Criminal Justice and Public Order Act, 1994, c. 33 (expanding police
powers and redefining sample collection and retention procedures).
28 Home Office, Proposals for Revising Legislative Measures on Fingerprints,
Footprints, and DNA Samples 10 (1999), available at http://www.nationalarchives.gov.uk/
ERORecords/HO/421/2/ppd/fingdna.pdf [hereinafter Home Office Proposals].
29 See Helen Wallace, The UK National DNA Database: Balancing Crime Detection, Human
Rights and Privacy, 7 Eur. Molecular Biology Org. Reps S26, S26 (Special Issue 2006).
Despite the fact that the CJOP made the database possible, Parliament never enacted specific legislation to set up the Database. See Parliament Office of Sci. and Tech., The
National DNA Database 2 (2006) [hereinafter National DNA Database].
30 Robin Williams & Paul Johnson, Inclusiveness, Effectiveness, and Intrusiveness: Issues in
the Developing Uses of DNA Profiling in Support of Criminal Investigations, 34 J.L. Med. & Ethics, 234, 236 (2006).
31 See Redmayne, supra note 11, at 442.
32 See Criminal Justice and Public Order Act, 1994, c. 33, §§ 54(3)(b) (intimate samples),
55(3) (non-intimate samples). Interestingly, this provision was contrary to the suggestion by
the Royal Commission on Criminal Justice that certain crimes be included under serious
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DNA Database Retention Policy in the U.K.
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has allowed sample collection for virtually any offense.33 Second, the
CJPO 1994 reclassified mouth swabs and non-pubic hair plucked from
the root as non-intimate samples, thereby eliminating the need for consent.34 This was in response to the recognition that the interests of justice would be better served by the collection of these samples, which
could provide valuable DNA evidence.35 Third, Parliament brought
sample collection more in line with that of fingerprints by providing
that non-intimate samples could be collected without consent from
persons convicted of any recordable offense.36 Finally, samples which
were required to be destroyed under § 64 of PACE could now be retained if another person were convicted of the same offense, and that
person had also given a sample in the course of the investigation.37 Parliament was careful to explicitly prohibit the use of the newly retained
samples as evidence against the person or for any investigative purposes.38 Instead, the sample was retained and could be further analyzed
only if the conviction of the third-party required subsequent review.39
With the legal framework for collecting and retaining fingerprint
and DNA samples established, the Database went into effect on April
10, 1995.40 Since then, there have been three significant changes to
PACE (as amended by the CJPO 1994) that were responsible for the
expansion of the Database.41 In 1997, Parliament passed the Criminal
Evidence (Amendment) Act, which increased the number of offenders
in the database.42 The Act provided for the non-consensual collection
of non-intimate (but now including mouth swabs) samples of any offender who had been convicted of a sexual or violent offense prior to
arrestable offenses, rather than simply open all criminal offenses to collection. See The Royal
Commission on Criminal Justice, Report, 1993, Cm. 2263, ch. 2, para. 33.
33 See National DNA Database, supra note 29, at 1 (defining recordable offenses as
“most offenses other than traffic offenses”); see also Leonard Jason-Lloyd, The Criminal
Justice and Public Order Act 1994: A Basic Guide for Practitioners 43 (1995) (listing “loitering or soliciting for the purposes of prostitution” and “tampering with a motor
vehicle” as other recordable offenses); Wallace, supra note 29, at S26 (listing begging, participating in an illegal demonstration, and being drunk and disorderly as recordable offenses).
34 Criminal Justice and Public Order Act, § 58(3).
35 See The Royal Commission on Criminal Justice, supra note 32, ch. 2, paras. 28–
29.
36 See Criminal Justice and Public Order Act, § 55(2).
37 See id. § 57(3).
38 See id.
39 See Home Office Proposals, supra note 28, at 11.
40 See Redmayne, supra note 11, at 437.
41 See National DNA Database, supra note 29, at 2.
42 See Redmayne, supra note 11, at 445.
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April 10, 1995 and who was currently serving the sentence for those
crimes.43 This provision allowed the police to collect samples from
some of the most serious offenders who had entered the system prior to
the expansion of collection power under the CJPO 1994.44 Parliament
further relaxed restrictions on collecting samples by removing the requirement that the officer believe the sample would confirm or disprove his suspicion that the suspect had been involved in the investigated offense.45 Under the Criminal Justice Act 2003, a non-intimate
sample could be taken without consent so long as the person was “in
police detention as a consequence of his arrest for a recordable offense” and the police had not yet taken a sample from him in the
course of the investigation.46 Thus, collecting a sample no longer had
to be relevant to the investigation of the offense.47
The most police-empowering change to the law as it existed under
the CJPO 1994, however, came as a result of the Criminal Justice and
Police Act 2001 (CJP 2001).48 Prior to this Act, retention of samples
had been expressly prohibited under PACE,49 and, later, allowed under
the CJPO 1994 for non-investigative purposes.50 Despite these restrictions, the police had been illegally retaining samples, and in some
cases, using them in investigations.51 A 1999 Home Office study of the
existing legislation proposed that the retention policy should be
amended to allow for retention of samples collected from volunteers
(as opposed to actual suspects), subject to their written consent.52 The
proposal, however, was not intended to cure the police violations of the
current retention program; instead, it was focused on eliminating the
need to re-collect samples from volunteers.53 Furthermore, the study
43 Criminal Evidence (Amendment) Act, 1997, c. 17, § 1(1)–(3). The Act also provided
sample collection from offenders who had been convicted of recordable offenses before
April 10, 1995, and were now detained pursuant to the Mental Health Act 1983. Id. For a
list of the offenses covered under the Act, which also included incitement or conspiracy to
commit the enumerated offenses, see id., sched. 1.
44 See Redmayne, supra note 11, at 445.
45 See Criminal Justice Act, 2003, c. 44, § 10(2).
46 See id. Even if the police had taken a non-intimate sample, they were authorized to
take another one if the first proved to be insufficient. See id.
47 National DNA Database, supra note 29, at 2.
48 See Criminal Justice and Police Act, 2001, c. 16, § 82.
49 See Police and Criminal Evidence Act, § 64.
50 See Criminal Justice and Public Order Act, § 57.
51 See Antony Barnett, Fury at Police DNA Database, Guardian (London), June 11, 2000, at
4 (News), available at http://www.guardian.co.uk/uk/jun/11/antonybarnett.theobserver.
52 Home Office Proposals, supra note 28, at 11.
53 See id.
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185
addressed the need for adequate safeguards and recommended the
ability of a person to withdraw his or her consent at any time.54
The CJP 2001 expanded retention powers beyond those proposed
by the Home Office.55 Under section 82 of the CJP 2001, samples taken
under the CJPO 1994 were no longer required to be destroyed and
could be subsequently used for “purposes related to the prevention or
detection of crime, the investigation of an offence or the conduct of a
prosecution.”56 This provision, while authorizing the retention of all
samples taken after the Act went into effect, also provided for the retention of illegally retained samples that should have been destroyed under
the preexisting law.57 The CJP 2001 adopted the Home Office’s proposal concerning consensual retention of volunteered samples but significantly departed from the proposal by providing that consent given
by a volunteer could not be withdrawn.58 Finally, the CJP 2001 expanded
the power of the police to use the retained samples for speculative
searches, whereby the sample is checked against the Database as well as
records held by police forces outside the United Kingdom.59
B. Public Opinion and the DNA Database
The DNA Database and the corresponding retention policy have
drawn mixed reactions in the United Kingdom.60 The first major expansion of the Database was proposed by Prime Minister Tony Blair in
1999 and called for the collection of DNA samples from all known offenders.61 Prior to the passing of the CJP 2001, government leaders
pushed hard for retention of DNA from exonerated individuals62 after
54 See id.
55 Compare Criminal Justice and Police Act, § 82 (providing retention of samples from
all suspects, regardless of the outcome of the investigation), with Home Office Proposals,
supra note 28, at 11 (proposing retention of volunteered samples only).
56 Criminal Justice and Police Act, § 82(2). The Explanatory Notes indicate that this
provision was a direct result of the decisions in the Court of Appeal and House of Lords
concerning the admission of DNA evidence that had been illegally retained. See Explanatory Notes to the Criminal Justice and Police Act, 2001, para. 210. Prior to the Act, the
House of Lords had ruled that the admission of such evidence was within the judge’s discretion. See id.
57 See Criminal Justice and Police Act, § 82(6).
58 See id. § 82(4).
59 See id. § 81(2). The use of a sample, as provided in § 82(2), also includes the use of
any information derived from the sample (“DNA profile”). Id. § 82(2).
60 See The DNA Database: Big, Bigger, Biggest, Economist, Mar. 1, 2008, at 59.
61 Home Office, Forensic Science and Pathology Unity, DNA Expansion Programme 2000–2005: Reporting Achievement 3 (2005).
62 Duncan Carling, Note, Less Privacy Please, We’re British: Investigating Crime with DNA in
the U.K. and the U.S., 31 Hastings Int’l & Comp. L. Rev. 487, 492 (2008). Prime Minister
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the Court of Appeal ruled two men accused of murder and rape, respectively, could not be convicted, despite “compelling evidence,” because the police had matched both suspects by using illegally retained
DNA samples.63 In contravention of the retention policy then in place,
the police illegally retained the DNA samples of the two men, leading
many civil liberty groups to voice their concern over the police action
and its interference with the privacy of innocent people.64 In 2001, Parliament responded to public concern over the existing law65 with the
CJP 2001, which provided for the retention of samples collected from
individuals who had not been convicted.66 The new policy was not
without opposition, most notably from the human rights watchdog Liberty in its House of Lords Briefing on the CJP 2001.67 While conceding
that the government had a valid concern in effectively preventing
crime, the group felt that many of the provisions of the Act presented a
“serious extension of the state’s power and erosion of existing civil liberties.”68 As of 2005, the CJP 2001 allowed the authorities to link samples collected before the new law with over 8,000 crime scene stains and
samples from over 13,000 offenses.69 Additionally, the government has
been able to obtain convictions in a number of high-profile cold cases70
and a pair of cases involving two of the most brutal murders in recent
British history.71
The success of using retained DNA samples to bring a number of
criminals to justice has led some to call for an even greater expansion
and Labour Party leader Tony Blair announced the expansion of the DNA program. See id.
Interestingly, Tony Blair and the Labour Party committed early in the 1990s to drafting a
Bill of Rights for Great Britain and incorporating the Human Rights Act into British Law.
See Francesca Klug, A Bill of Rights: Do We Need One or Do We Already Have One?, 2001 Pub. L.
701, 704 (2007).
63 See Barnett, supra note 51. The House of Lords subsequently ruled that evidence obtained as a result of the use of illegally retained samples was not automatically inadmissible, but was an issue for the trial judge to decide. R (S and Marper) v. Chief Constable of
the S. Yorkshire Police, (2004) 1 W.L.R. at 2196, 2199 (H.L.) (U.K.).
64 See Barnett, supra note 51.
65 Marper, 1 W.L.R. at 2198 (H.L.).
66 See Criminal Justice and Police Act, 2001, c. 16, § 82(2).
67 See Liberty, Criminal Justice and Police Bill: House of Lords Briefing 5
(2001), http://www.liberty-human-rights.org.uk/pdfs/policy01/mar-cjpb.pdf (last visited
Mar. 9, 2010).
68 Id. at 2.
69 S and Marper v. United Kingdom, App. Nos. 30562/04 & 30566/04, 48 Eur. H.R.
Rep. 50, 1195 (2009).
70 Mark Townsend & Anushka Asthana, How Two Brutal Killers Fuelled the DNA Debate,
Observer (London), Feb. 24, 2008, at 28 (Focus), available at http://www.guardian.co.uk/
uk/2008/feb/24/ukcrime.forensicscience.
71 Id.
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of the Database.72 Britain’s leading expert on police forensics has proposed the inclusion of children in the Database if they exhibit behavior
that indicates that they may be future criminals.73 Both the public74 and
members of the government75 have lashed out against this proposal,
especially after the Home Office revealed that almost 40,000 innocent
children were in the Database.76 Lord Justice Sedley advocated an
equally unpopular suggestion of making the DNA Database universal
for the purposes of crime prevention.77 Despite the success of the Database in recent murder convictions, the Home Office has flatly rejected this proposal for a compulsory Database.78
Taking into account the clearly controversial nature of the Database and retention program, many have declared that there needs to
be more public debate on the issue.79 In fact, the DNA Database was
not submitted for public discussion at its creation, nor was there any
public debate accompanying the extension of the Database and its
72 See Mark Townsend & Anushka Asthana, Put Young Children on DNA List, Urge Police,
Observer (London), Mar. 16, 2008, at 1 (News), available at http://www.guardian.co.uk/
society/2008/mar/16.youthjustice.children [hereinafter “Put Young Children on DNA List”];
The DNA Database: Big, Bigger, Biggest, supra note 60, at 59.
73 See Put Young Children on DNA List, Urge Police, supra note 72.
74 See Matthew Squires, Thousands of Kids on DNA Database, Lancashire Evening Post,
Dec. 29, 2008, http://www.lep.co.uk/news/thousands-of-kids-on-DNA.4828460.jp (“Community leaders and children’s charities said it was ‘unethical’ for young people’s DNA to be
added and stored on the system.”).
75 DNA Database Contains 39,000 Innocent Children, Home Office Admits, Guardian (London), Aug. 15, 2008, http://www.guardian.co.uk/society/2008/aug/15/youthjustice.young
people.
76 Id.
77 Senior Judge: Put All of UK on DNA Database, Times Online (London), Sept. 5, 2007,
http://www.timesonline.co.uk/tol/news/uk/crime/article2390338.ece. Lord Justice Sedley stated that the Database was “indefensible” because it only included those persons who
happened to come into contact with the criminal justice system. Clare Dyer, Anger Over Call
to Widen DNA Database, Guardian (London), Sept. 6, 2007, http://www.guardian.co.uk/
uk/2007/sep/06/ukcrime.prisonsandprobation (last visited, Mar. 31, 2010). The current
system, according to Sedley, resulted in a disproportionate number of people from ethnic
minorities being put in the database. See id. By including every citizen in the Database
solely for the purpose of crime detection and prevention, the system would be fairer. See id.
78 Ben Quinn, Calls for Compulsory DNA Database Rejected, Guardian (London), Feb. 23,
2008, http://www.guardian.co.uk/politics/2008/feb/23/ukcrime.
79 See Human Genetics Commission, A Citizens’ Inquiry into the Forensic Use of
DNA and the National DNA Database: Evaluation Report 4 (2008), available at
http://www.hgc.gov.uk/UploadDocs/DocPub/Document/Citizens%20Inquiry%20%20Citizens%20Report.pdf; The National DNA Database, supra note 29, at 4; GeneWatch UK, The UK Police National DNA Database, http://www.genewatch.org/sub539478 (last visited Mar. 9, 2010).
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uses.80 Any debate would likely focus on the proper way to balance the
personal rights of individuals with the compelling interests of the government.81 Given Home Secretary Jacqui Smith’s statement that “the
existing law will remain in place while we carefully consider the judgment,” the decision of the ECHR has created the opportunity for public debate to contribute to the future of the Database.82
II. Discussion
The Marper case is especially important to the discussion of the Database. The opposite outcomes in the House of Lords and the ECHR
reveal the different ways in which privacy is viewed in the United Kingdom and under the Convention.83 In rendering its decision in Marper,
the ECHR continued its liberal approach towards protecting individual
rights,84 while the House of Lords focused more on the benefits of the
Database and subsequent use of retained DNA.85
A. A Difference of Opinion
In the early months of 2001, two British citizens, Michael Marper
and S (a minor), were arrested for harassment and attempted robbery,
respectively.86 Following the arrests, the police took the fingerprints
and DNA samples of each person.87 Marper’s partner, the victim of the
harassment, decided not to press charges, and the Crown Prosecution
Service discontinued the case;88 S went to trial on his attempted robbery charge and was acquitted.89 Both individuals were informed by the
80 See Nuffield Council on Bioethics, The Forensic Use of Bioinformation: Ethical Issues 3 (2007).
81 See GeneWatch UK, The UK Police National DNA Database, supra note 79.
82 DNA Database ‘Breach of Rights,’ supra note 9.
83 Compare R (S & Marper) v. Chief Constable of the S. Yorkshire Police, (2004) 1
W.L.R. 2196, 2210 (H.L) (U.K) (holding that retention did not engage Article 8(1)), with
Case of S & Marper v. The United Kingdom, App. Nos. 30562/04 & 30566/04, 48 Eur.
H.R. Rep. 50, 1189 (2009) (holding that the “mere storing of data relating to the private
life of an individual amounts to an interference within the meaning of Article 8”).
84 See Helen Fenwick, Civil Liberties and Human Rights 23 (4th ed. 2007) (“The
Court has increased enormously in standing and efficacy over the last 30 years, partly due
to its activism and creativity in interpreting the Convention and its willingness to find that
Member states have violated the rights of individuals.”).
85 See Marper, 1 W.L.R. at 2210–11 (H.L.).
86 R (S and Marper) v. Chief Constable of the S. Yorkshire Police, (2002) 1 W.L.R.
3223, 3226–27 (A.C.) (U.K.).
87 See id. at 3227.
88 Id. at 3227–28.
89 Id. at 3227.
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189
principal fingerprint officer of the South Yorkshire Police that their
fingerprint and DNA samples would be retained by the police pursuant
to the CJP 2001.90 Marper and S applied for judicial review of the officer’s decision in the Divisional Court, where Judge Leveson held that
the retention of the fingerprints and DNA samples did not contravene
the right to a private life under Article 8 of the Convention.91 On appeal, a majority of the Civil Division of the Court of Appeal upheld the
decision of the Divisional Court; however, its reasoning was slightly different.92 The appellate court found that retention of the DNA samples
violated the right to a private life under Article 8(1),93 but that it was
justified under Article 8(2) because it was in the interest of preventing
and solving crime.94
Three years after the initial arrests, the House of Lords returned to
the reasoning of the Divisional Court and held that the retention of the
fingerprints and DNA samples did not engage Article 8(1).95 Without
an ECHR decision to guide him,96 Lord Steyn based his opinion on the
explanations of Judge Leveson in his earlier decision and the findings
of Dr. Bramley, the Chief Scientist of the Forensic Science Service and
Custodian of the National DNA Database.97 Dr. Bramley explained that
90 See id. at 3227–28.
91Marper, 1 W.L.R. at 2203 (H.L.). Leveson found that:
[A] person can only be identified by fingerprint or DNA sample either by an
expert or with the use of sophisticated equipment or both; in both cases, it is
essential to have some sample with which to compare the retained data. Further, in the context of the storage of this type of information within records
retained by the police, the material stored says nothing about the physical
make-up, characteristics or life of the person to whom they belong.
Id. at 2209.
92 See id. at 2204 (H.L.).
93 Marper, 1 W.L.R. at 3234 (A.C.).
94 See id. at 3237. Article 8(2) states:
There shall be no interference by a public authority with the exercise of this
right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and freedoms of others.
European Convention for the Protection of Human Rights and Fundamental Freedoms,
art. 8(2), Nov. 4, 1950, 213 U.N.T.S. 221, 230 [hereinafter European Convention].
95 See Marper, 1 W.L.R. at 2210 (H.L.).
96 Id. at 2207. Had there been a decision by the European Court directly on this issue,
the House of Lords would have at least had to take it into account under the Human
Rights Act 1998. See Marper, 1 W.L.R. at 3233 (A.C.).
97 See Marper, 1 W.L.R. at 2209 (H.L.).
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the retained samples could only be used “for purposes related to the
prevention or detection of crime, the investigation of an offence or the
conduct of a prosecution.”98
The Law Lords’ ruling was not without a “dissent” by Baroness
Hale of Richmond, who agreed with the dismissal of the appeal99 but
sharply criticized the suggestion that retention did not violate Article
8(1).100 Hale’s reasoning was rooted in the concept of informational
privacy, which operates off the assumption that “information about a
person is in a fundamental way his own,” and, therefore, that person
should have control over who may be privy to such information.101
While acknowledging that an individual does not have absolute control
over all of his or her information, Hale noted that a person’s genetic
make-up is perhaps the most private type of information and should be
protected by Article 8.102
Despite their disagreement over whether retention constitutes a
violation of the Convention, the Lords were in agreement that such a
retention policy was justified under Article 8(2).103 Given the limited
purpose for which the retained samples could be used, Lord Steyn held
that those purposes, namely prevention of crime and the government’s
interest in protecting society’s right to be free from crime, were firmly
established within Article 8(2).104 In addition, the fact that the samples
would be of no use without a crime scene sample with which to match it
led Lord Steyn to conclude that retention was not disproportionate in
its effect because individuals like the appellants would be unaffected
unless implicated in a future crime.105
98 Id. The House of Lords was unconvinced by the appellants’ argument that the proscribed purposes for the use of retained samples were overly broad and would allow other
uses. See id. at 2209–10.
99 Id. at 2219.
100 Id. at 2217. In the House of Lords, the Lords issue their opinions seriatim, which allows each Lord to express his or her own opinion as to how he or she would decide the
case. See Ruth Bader Ginsburg, Assoc. Justice, U.S. Supreme Court, 20th Annual Leo and
Berry Eizenstat Memorial Lecture: The Role of Dissenting Opinions (Oct. 21, 2007), available at http://www/supremecourtus.gov/publicinfo/speeches/sp_10–21–07.html.
101 See Marper, 1 W.L.R. at 2217 (H.L.). Baroness Hale also quoted a report by the Canadian Privacy Commissioner, which succinctly stated that “[t]he measure of our privacy is
the degree of control we exercise over what others know about us.” Id.
102 Id. at 2218.
103 Id. at 2212, 2216, 2219. Having already decided that the appeal should be dismissed
on Article 8(1) grounds, this portion of the court’s opinion was dicta. It is, however, important to the overall discussion of this case’s treatment in British courts and the ECHR.
See id.
104 See id. at 2210–11 (citing Marper, 1 W.L.R. at 3243 (A.C.)).
105 See id. at 2211 (H.L.).
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Having had no success in the United Kingdom, Marper and S petitioned the ECHR,106 known for its liberal interpretation of Convention
rights.107 Almost nine years after their initial arrests, they prevailed.108
The ECHR distanced itself from the judgment in the House of Lords in
two ways. First, it held that retention and storing of data relating to an
individual’s private life was a per se interference under Article 8, regardless of any subsequent uses of the data.109 Focusing on the content
of the data, the court noted that the samples were of a “highly personal
nature” and interfered with the right to privacy because they contained
personal data unique to the specific individual.110
Second, the court held that the retention program did not satisfy
the justification requirement under Article 8(2).111 The crux of this
part of the decision was the determination that the retention program
was not “necessary in a democratic society,”112 which requires that “the
action taken is in response to a pressing social need, and that the interference with the rights protected is no greater than is necessary to address that pressing social need.”113 The lack of support among the other Contracting States greatly influenced the court’s conclusion that the
U.K. was unable to strike a proper balance between the private interests
106 S & Marper, 48 Eur. H.R. Rep. at 1169.
107 Donald W. Jackson, The United Kingdom Confronts the European Convention on Human Rights 29 (1997).
108 S & Marper, 48 Eur. H.R. Rep. at 1202.
109 Id. at 1189.
110 Id. at 1190–91.
111 See id. at 1202.
112 Id. The ECHR has recognized four general principles that underlie the “democratic
society” requirement:
(a) the adjective ‘necessary’ is not synonymous with ‘indispensable’, neither
has it the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’,
‘reasonable’, or ‘desirable’;
(b) the Contracting States enjoy a certain but not unlimited margin of appreciation in the matter of the imposition of restrictions, but it is for the Court to
give the final ruling on whether they are compatible with the Convention;
(c) the phrase ‘necessary in a democratic society’ means that, to be compatible with the Convention, the interference must, inter alia, correspond to a
‘pressing social need’ and be ‘proportionate to the legitimate aim pursued’;
(d) those paragraphs of Article of the Convention which provide for an exception to a right guaranteed are to be narrowly interpreted.
Silver v. United Kingdom, App. Nos. 5947/72, 6205/73, 7052/75, 7061/75, 7107/75,
7113/75, & 7136/75, 5 Eur. H.R. Rep. 347, 376–77 (1983).
113 Clare Ovey & Robin C.A. White, The European Convention on Human
Rights 232 (4th ed. 2006).
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of the citizen and the public interests justifying interference.114 Still, the
ECHR generally grants a margin of appreciation, but that margin is
narrower when an intimate right is involved, and where there is a consensus among the Member States on the issue.115 Categorizing the retention program as “blanket and indiscriminate,”116 the ECHR concluded that although the detection and prevention of crime is a
legitimate aim,117 the proper balance was not met given the failure of
British authorities to consider, inter alia, the nature of the crime, the
age of the suspect, and the indefiniteness of sample retention.118
B. The Concept of Privacy in the Convention and British Law
1. The Right to a Private Life
Under Article 8(1) of the Convention, “[e]veryone has the right to
respect for his private and family life, his home and his correspondence.”119 This right is qualified by Article 8(2), which allows a public
authority to interfere with the right if it is necessary for the furtherance
of certain public interests.120 On a theoretical level, the ECHR based its
interpretation of Article 8 on the notion that “boundaries can and
should be placed around such aspects of an individual’s life, preventing
such intrusion and thereby protecting personal autonomy.”121 This underlying theory, however, has never given rise to a fixed definition of
what constitutes a private life.122 Instead, the ECHR has created an umbrella under which certain elements of a person’s physical and social
identity are deemed part of a private life, such as that person’s name,
gender, sexual orientation, health, ethnic identity, and an overall right
114 See S & Marper, 48 Eur. H.R. Rep. at 1199–1200. The court noted that England,
Wales, and Northern Ireland were the only Contracting States that have an indefinite retention policy. See id. at 1199.
115 See id. at 1197. A margin of appreciation allows the ECHR to defer to the authorities
in the forum state, who are likely to be better placed “to balance individual rights against
general societal interests.” Fenwick, supra note 84, at 36. The ECHR’s application of the
margin of appreciation doctrine has not been very consistent, making it difficult to predict
the approach the court will take in determining the scope of the margin. See id.
116 See S & Marper, Eur H.R. Rep. at 1200.
117 See id. at 1197.
118 Id. at 1200–01.
119 European Convention, art. 8(1), Nov. 4, 1950, 213 U.N.T.S. 221, 230.
120 See id. art. 8(2).
121 Fenwick, supra note 84, at 804.
122 See Karen Reid, A Practitioner’s Guide to the European Convention on Human Rights 443 (2d ed. 2004).
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to his or her image.123 Moreover, it covers the physical and psychological integrity of a person, and the right to personal development and the
establishment of relationships with others.124 The right to a private life
is therefore seen as broader than the mere right to privacy125 and is
continuously being widened by the ECHR.126
2. The History of Privacy Jurisprudence in English Law
Despite its rich legal tradition, which has served as a model for
many legal systems around the world, the English common law has historically never embraced the idea of a right to privacy,127 prompting
one prominent jurist to state that “[i]t is well-known that in English Law
there is no right to privacy.”128 That is not to say that the necessary basis
for such a right was lacking in early English legal history,129 as evidenced by the classic observation that a man’s home is his castle.130
Still, a sound law on privacy remained undeveloped, due in large part
to the inability of the courts and Parliament to derive a clear definition
of the right.131 Prior to the passing of the Human Rights Act (HRA) in
1998, British law offered an incomplete scheme of privacy protection,
with any real protection coming from the ECHR.132 The HRA, which
incorporated the Convention into United Kingdom law, afforded British citizens their first true right to privacy by making the Convention
directly enforceable, in British courts, against the government.133 A citizen could therefore challenge a piece of legislation on the grounds that
it was incompatible with the Convention.134
123 See S. and Marper, 48 Eur. H.R. Rep. at 1189.
124 Id.
125 See Reid, supra note 122, at 444.
126 Fenwick, supra note 84, at 803.
127 See David Feldman, Civil Liberties and Human Rights in England and Wales
381 (1993).
128 Kaye v. Robertson, [1991] F.S.R. 62, 66 (A.C.) (U.K.).
129 See Feldman, supra note 127, at 381–82.
130 See William Morris & Mary Morris, Morris Dictionary of Word and Phrase
Origins 374 (2d ed. 1988) (“This saying is as old as the basic concepts of English common
law.”).
131 See Feldman, supra note 127, at 382.
132 See Fenwick, supra note 84, at 807–08.
133 See id. at 808. It is uncontroverted that there was no right to privacy in the United
Kingdom prior to the Human Rights Act; yet, it is interesting to note that Lord Hoffman of
the House of Lords argued that “[t]he United Kingdom subscribed to the Convention
because it set out rights which British subjects enjoyed under the common law.” See Williams & Johnson, supra note 30, at 237.
134 See Human Rights Act, 1998, c. 42, § 4. Despite their ability to declare primary legislation incompatible with the Convention, British courts do not have the power to strike
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The incorporation of the Convention, however, has done little to
clarify the meaning of privacy in the United Kingdom because British
courts are free to interpret the values of the HRA so long as such interpretation does not undermine the protections of the Convention.135
British courts attempting to do so, however, are plagued by the lack of a
domestic tradition of privacy and the unwillingness of the ECHR to
clearly define the right to a private life.136 As a result, persons alleging a
violation of Article 8 may have greater success in the ECHR than in
British courts.137
III. Analysis
The ECHR’s decision in Marper left open the question of proper
remedial action by the United Kingdom.138 Under Article 46(1) of the
Convention, “[t]he High Contracting Parties undertake to abide by the
final judgments of the Court in any case to which they are parties.”139 In
many cases, this requires no more than paying compensation and costs
to the applicant through the process of just satisfaction.140 There are
instances, however, where enforcement of the judgment requires substantive changes to the violating law or practice of the forum state.141 In
Marper, the ECHR noted that “[i]n these circumstances, the Court considers that the finding of a violation, with the consequences which will
ensue for the future, may be regarded as constituting sufficient just satisfaction in this respect.”142 Thus, it is clear that in order to comply with
the judgment, the ECHR intends for the United Kingdom to make
down the legislation, and a declaration of incompatibility does not affect the validity or
continued operation of the law. See id. § 4(6); Human Rights and Criminal Justice 174
(Ben Emmerson et al. eds., 2d ed. 2007).
135 See Klug, supra note 62, at 706.
136 Andrew Roberts & Nick Taylor, Privacy and the DNA Database, 4 Eur. Hum. Rts. L.
Rev. 373, 376 (2005).
137 Compare S & Marper, 48 Eur. H.R. Rep. at 1202, with Marper, 1 W.L.R. at 2210 (H.L.).
138 See Case of S & Marper v. The United Kingdom, App. Nos. 30562/04 & 30566/04,
48 Eur. H.R. Rep. 50, 1204 (2009).
139 European Convention, supra note 94, art. 46(1) (formerly art. 53).
140 Human Rights and Criminal Justice, supra note 134, at 60. Just satisfaction is
granted when there is no total reparation in the domestic law of the forum country. Reid,
supra note 122, at 545. The ECHR will normally award just satisfaction for pecuniary loss,
non-pecuniary loss (such as pain and suffering, or physical and mental injury), and costs
and expenses. See id. at 546, 554. The underlying principle of just satisfaction is equity. See
id. at 546.
141 Human Rights and Criminal Justice, supra note 134, at 60 (noting that in a
number of cases, “the judgment may require legislative, constitutional, administrative or
regulatory amendment”).
142 S & Marper, 48 Eur. H.R. Rep. at 1204.
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some sort of change to its retention policy.143 The question that remains is how far it must go, bearing in mind that a complete reversal of
the retention legislation would essentially eliminate any usefulness of
the Database,144 while whole-hearted noncompliance with the judgment may subject the United Kingdom to expulsion from the Council
of Europe.145
A. Problems with the ECHR Decision
There are three key problems with the ECHR decision that undermine the validity of its reasoning.146 First, the ECHR noted that acquitted individuals had very limited means by which they could have
their data removed from the Database.147 The big problem, according
to the court, was the lack of “independent review of the justification for
the retention according to defined criteria.”148 Such criteria would include the seriousness of the offence, previous arrests, and the strength
of suspicion against the person.149 This type of review, however, would
introduce a level of discrimination into the process that contravenes
Article 14 of the Convention.150 If the authorities were charged with
making post-acquittal determinations on retention, those who had
their samples retained would be singled out from the larger group as
individuals who were really not as innocent, despite a not guilty verdict.151 In fact, this procedure was rejected by Lord Justice Waller in his
Court of Appeal opinion in Marper :
143 See id. Exactly what steps must be taken is for the forum state to decide, in conjunction with the Committee of Ministers, which is tasked with supervising the execution of
judgments. See Reid, supra note 122, at 545. “The Court has no express jurisdiction . . . to
issue directions to Contracting States on the measures or steps which they should take to
rectify violations.” Id.
144 See DNA Database ‘Breach of Rights,’ supra note 9.
145 See Human Rights and Criminal Justice, supra note 134, at 61.
146 See S. and Marper, 48 Eur. H.R. Rep. at 1199–1201.
147 Id. at 1200.
148 Id.
149 Id. But see R (S & Marper) v. Chief Constable of the S. Yorkshire Police, (2002) 1
W.L.R. 3223, 3242 (A.C.) (U.K) (“At the retention stage consideration of the circumstances of the offense of which the person has by this stage been acquitted seems to me
almost certainly irrelevant.”) (Waller, L.J.).
150 See European Convention, supra note 94, art. 14. Article 14 states “[t]he enjoyment
of rights and freedoms set forth in this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status.” Id.
151 See Marper, 1 W.L.R. at 3242–43 (A.C.) (Waller, L.J.).
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If justification for retention is in any degree to be by reference
to the view of the police on the degree of innocence, then persons who have been acquitted and have their samples retained
can justifiably say this stigmatises or discriminates against me—
I am part of a pool of acquitted persons presumed to be innocent, but I am being treated as though I was not.152
When retention becomes conditional on a further determination
of guilt, or a lesser degree of innocence, the message being sent is that
a sample is kept in the Database because the person to whom it belongs
is more likely to be a suspect in a later crime.153 While some commentators have argued that the Database is intended to represent the likely
criminal community,154 such a position, if adopted by the government,
would undermine the goal of preventing and solving crime, which has
been greatly facilitated by police access to as large a database as possible.155 Additionally, the use of the criteria suggested by the ECHR,
whether at the time of collection or after an acquittal, would further
defeat the purpose of the Database.156 As demonstrated by the legislative progression of the retention program, the Database is more useful
when the police have access to a larger class of citizens as opposed to
only those suspected of committing the most serious offenses.157
The second problem with the ECHR decision is its contention that
innocent people who have their DNA retained are stigmatized by simply being in the Database.158 This position is based on the notion that
those who are acquitted are treated the same way as those who are convicted.159 While it is true that both classes of people would have their
samples retained, there is no merit to the idea that such a policy is actually harmful to the acquitted individuals.160 To say that retaining the
sample of an acquitted person equates them with a convicted offender
is simply untenable, given the fact that the purpose of the Database is to
152 Id.
153 See Nuffield Council on Bioethics, supra note 80, at 33.
154 See id.
155 See Marper, 1 W.L.R. at 3243 (A.C.).
156 See id.
157 See Marper, 1 W.L.R. at 3242 (“The bigger the databank the better.”) (Waller, L.J.).
158 See S & Marper, 48 Eur. H.R. Rep. at 1201.
159 See id.
160 See id. at 1204. The ECHR found that it was not necessary to compensate the applicants for “distress and anxiety caused by the knowledge that intimate information about
each of them had been unjustifiably retained.” Id. at 1203.
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aid law enforcement with access to a larger class of citizens, not likely or
actual offenders.161
Finally, the ECHR placed too much emphasis on the practices of
the other Contracting States with regards to their retention policies.162
The development of DNA technology and the use of DNA in crime
prevention and investigation are relatively recent.163 In this respect,
many of the Member States lag behind the United Kingdom in their
use of DNA databases.164 Furthermore, it can hardly be said that a true
consensus exists among the Member States, except that no other state
has indefinite retention.165 But this is certainly not enough, in light of
the fact that there are a number of differences between the retention
policies of the other states.166 In fact, many states place limitations on
DNA retention that actually result in the type of discrimination and
post-acquittal determinations of guilt that the United Kingdom policy
has avoided.167 Therefore, the ECHR appears to have found Member
State consensus on an issue that is still being developed, and as such,
should not have used the consensus as a basis for eroding the margin of
appreciation that must be afforded to the United Kingdom.168
B. A “Democratic Society” Means More Debate
In light of the analytical flaws in the ECHR opinion, it is the position of this Note that the judgment of the ECHR is incorrect with respect to its treatment of the justification question. As a result, the United Kingdom’s response should not include elimination of the Database
or the retention program. Instead, proper compliance should focus on
161 Cf. R (S & Marper) v. Chief Constable of the S. Yorkshire Police, (2004) 1 W.L.R.
2196, 2219 (H.L.) (U.K.) (“The present system is designed to allow the collection of as
many samples as possible and to retain as much as possible of what it has. The benefit of
the aims of accurate and efficient law enforcement is thereby enhanced.”) (Baroness
Hale).
162 See S & Marper, 48 Eur. H.R. Rep. at 1199.
163 See id.
164 Id.
165 See id. at 1184.
166 See id.
167 See id. For example, Germany, Luxembourg, and the Netherlands allow retention,
after acquittal, if “further suspicions remain about the person.” Id. In Poland, DNA samples are retained when the person has been acquitted of certain serious crimes. Id.
168 Cf. Fenwick, supra note 84, at 38 (“[W]here practice is still in the process of changing and may be said to be at an inchoate stage as far as the Member states generally are
concerned, the Court may not be prepared to place itself at the forefront of such changes
. . . .”).
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a re-examination of the place of the Database in the United Kingdom’s
democratic society.
It has been maintained that the Convention is to be uniformly interpreted by the Member States.169 At the same time, the ECHR has
always interpreted the Convention in “light of present-day conditions”
and with “regard to the changing conditions in contracting states.”170
These two maxims are seemingly inconsistent with each other because,
under Article 8, the conditions within a particular state should not affect the interpretation of the substantive right, but those conditions are
an important factor in determining whether valid justification exists
under Article 8(2).171 This issue can be resolved by recognizing that
democracy gives birth to rights,172 and the will of the people should
therefore be afforded greater weight in the ECHR’s analysis.173
Despite its inclusion as a requirement for justification in Article
8(2), the ECHR has not formally adopted a definition for a “democratic society.”174 Instead, the court has simply acknowledged certain
qualities as being important elements of such a society.175 Democracy is
a central theme of the Convention, and the ECHR should be willing to
revert back to the traditional meaning of democracy when analyzing a
state’s interference with a protected right.176 A democracy, in simplest
169 See Marper, 1 W.L.R. at 2208 (quoting R. v. Special Adjudicator, (2004) 3 W.L.R. 23,
39–40 (H.L.) (U.K.)).
170 Rabinder Singh, Interpreting Bills of Rights, 29 Statute L. Rev. 82, 89 (2008).
171 Roberts & Taylor, supra note 136, at 377 (describing the House of Lords’ treatment
of this issue in Marper).
172 See Martin Loughlin, Rights, Democracy, and Law, in Sceptical Essays on Human
Rights 42 (Tom Campbell et al. eds., 2001).
173 Concededly, the ECHR has noted that the will of the majority is not always the same
thing as democratic values. See Human Rights and Criminal Justice, supra note 134, at
71. Nevertheless, given the fact that the purpose of the retention program falls squarely
within an acceptable use under Article 8(2), the expressed will of the majority should be of
greater importance. Cf. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) (stating that “I strongly believe that my agreement or disagreement has nothing to do
with the right of a majority to embody their opinions in law”).
174 See Ovey & White, supra note 113, at 233.
175 See id. The ECHR has regarded pluralism, tolerance, broadmindedness, equality, liberty, and self-fulfillment as “important ingredients of any democracy.” Id. See generally
Refah Partisi v. Turkey, App. Nos. 41340/98, 41342/98, 41343/98, & 41344/98, 37 Eur.
H.R. Rep. 1 (2003) (discussing what is necessary for a democratic society).
176 See European Convention, supra note 94, pmbl. (noting that the signatories were
“reaffirming their profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy”).
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terms, is a government by the people.177 Every Member State in the
Council of Europe, despite their diverse political histories, now exists as
some form of a democratic society.178 As such, the will of the citizens of
each country is reflected in the legislation of that country.179
The importance of the rights guaranteed by the Convention is not
uniform because the legal status of the Convention in each state is different.180 Thus, in light of the principles of democracy engrained in the
Convention (and especially the justification requirement of Article 8),
the ECHR should defer to the will of the people of the forum state
when a piece of legislation (as opposed to a state practice) is alleged to
violate a right.181 Granted, there has been little debate in the United
Kingdom concerning the Database and it may be that the current retention policy runs contrary to the expressed will of the people.182 The
ECHR’s decision provides the citizens of the United Kingdom the opportunity to engage in a robust debate about the place of the retention
program in their democratic society.183
177 See Webster’s Third New International Dictionary 600 (Philip Babcock Gove
ed., 1986).
178 See generally Cent. Intelligence Agency, The World Factbook (2008), available
at https://www.cia.gov/library/publications/the-world-factbook/ (describing the government structures of the countries).
179 See Loughlin, supra note 172, at 42.
180 See Frank Hoffmesiter, Germany: Status of European Convention on Human Rights in
Domestic Law, 4 Int’l J. Const. L. 722, 726–27 (2006).
181 Cf. Lochner, 198 U.S. at 75.
182 See, e.g., James Slack, Police in Retreat After Public Backlash over Their Demands for a
DNA Database, Daily Mail (London), Feb. 25, 2008, http://www.dailymail.co.uk/home/
index/html (search “police in retreat”; follow first result hyperlink). But see Techniquest,
The National DNA Database: The Public’s View 5 (2007) (noting that after a presentation on the Database and the civil liberty implications, the majority of the participants of
the public discussion “agreed with the current procedures in place concerning the circumstances for taking an individual’s DNA”).
183 See Loughlin, supra note 172, at 44 (“Democracy is the expression not just of the will
of a majority, but of a will that has been formed after wide-ranging and free discussion.”). In
May 2009, the Home Office published a consultation to “develop a DNA framework which
has the support and confidence of the public and achieves a proportionate balance between
the rights of the individual and protection of the public.” See Home Office, Keeping the
Right People on the DNA Database 4 (2009). After a period of public response, the
Home Office proposed a series of changes to the current blanket retention policy. See Alan
Johnson, Secretary of State, Home Department, Ministerial Statement on DNA and Fingerprint Retention, Nov. 11, 2009, http://search.homeoffice.gov.uk (search “Ministerial Statement on DNA”; follow first hyperlink). Under the new policy, DNA samples are to be destroyed after six months, while DNA profiles may be kept for as little as three years
(unconvicted juveniles under the age of sixteen) to as much as indefinite retention (convicted adults, juveniles convicted of serious crimes, or juveniles with two convictions for any
offense). See id. Unconvicted adults and juveniles ages sixteen and seventeen will have their
DNA profiles retained for six years. See id. These proposals have been placed in the Crime
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Conclusion
The United Kingdom’s National DNA Database has had a long
and successful tenure, providing the rest of the world with an example
for their databases. It has been built over the past two decades through
a series of legislative amendments to the Police and Criminal Evidence
Act 1984. These legislative changes reflect not only the will of the people but also the careful balancing of privacy rights with the public interest in preventing and solving crime. This has been demonstrated by
the House of Lords’ approval of the retention policy in place in the
United Kingdom. Nevertheless, the full spectrum of police power under the retention program is less popular in the rest of Europe. The
ECHR’s decision in Marper highlights the problem that exists when the
court determines what is necessary in a democratic society without considering that it was a democratic society in the first place that passed the
legislation in question. There is no disputing that times and attitudes
change, and what once carried favor among the public may now be out
of touch with the reality of a society. In the United Kingdom, while
most supported the retention policy in light of sensational convictions
made possible by DNA retention, there has always been a lack of meaningful public debate over the extent of DNA retention and the Database. The Marper decision now gives the United Kingdom the opportunity to hold that debate and to determine whether its “democratic
society” still supports the Database.
and Security Bill 2009 and are now before Parliament. See generally Crime and Security Bill,
2009, Bill [3] (Eng., W., N. Ir.). Despite the government’s attempt to comply with the Marper
decision, there are still those who perceive retention of DNA of unconvicted persons as a
violation of human rights. See DNA Database Is an Abuse of Our Rights, Telegraph (London),
Nov. 11, 2009, http://www.telegraph.co.uk/ (search “DNA Database is an abouse of our
rights”; follow first hyperlink under “Most Relevant” list).
HAVING ITS YELLOWCAKE AND EATING IT
TOO: HOW THE NSG WAIVER FOR INDIA
THREATENS TO UNDERMINE THE
NUCLEAR NONPROLIFERATION REGIME
Benjamin Wastler*
Abstract: The Nuclear Suppliers Group (NSG) is a cartel of nuclear suppliers that imposes export restrictions on nuclear trade with states that do
not adhere to the Treaty on the Non-Proliferation of Nuclear Weapons
(NPT) or submit to safeguards administered by the International Atomic
Energy Agency (IAEA). The NSG passed a waiver of restrictions on nuclear commerce with India in September 2008 despite India’s failure to
meet either of these nonproliferation norms. This waiver, largely influenced by the economic and political motivations of large nuclear suppliers, establishes a double standard for India because it provides India with
the same trade benefits of NPT members but without the nonproliferation obligations. This Note argues that the NSG waiver threatens to undermine the NPT and global security at-large. The Note proposes ways to
narrow the scope of the waiver to prevent further damage to the nuclear
nonproliferation regime.
Introduction
On September 6, 2008, the Nuclear Suppliers Group (NSG), a cartel which regulates exports of nuclear fuel and technology, passed a
waiver lifting a thirty-year ban on nuclear trade with India.1 The waiver
marks an unprecedented departure from thirty years of refusal to engage in nuclear trade with states such as India that are not parties to the
Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and do not
place their nuclear industries under safeguards operated by the Inter-
* Benjamin Wastler is Editor-in-Chief of the Boston College International & Comparative
Law Review. He would like to thank his wife Sarah and his family for their endless support
and John Gordon for his wisdom and guidance in the publication of this issue of the Boston
College International & Comparative Law Review.
1See Quantum Politics, Economist, Sept. 13, 2008, at 48, available at http://www.economist.com/world/asia/displaystory.cfm?story_id=12209404.
201
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national Atomic Energy Agency (IAEA).2 The United States lobbied
heavily to gain exception for India from NSG rules in order to effectuate the nuclear exchange agreement negotiated by U.S. President
George W. Bush and Indian Prime Minister Manmohan Singh in 2005.3
Several other exporting states, eager to meet India’s burgeoning energy
demands, are negotiating similar nuclear agreements with India.4
Although the NSG waiver will likely benefit both India and nuclear
exporters, it will severely undermine the NPT, which for forty years has
served as the linchpin of the nuclear nonproliferation regime.5 The
NPT is essentially a bargain between nuclear weapons states and nonnuclear weapons states.6 Non-nuclear weapons states agree not to develop nuclear weapons in exchange for nuclear weapons states’ commitment to share technology for peaceful purposes and to gradually
disarm their nuclear arsenals.7 The NSG was created in the aftermath
of India’s 1974 testing of a nuclear weapon developed with nuclear
technology transferred by major nuclear suppliers for peaceful purposes.8 The NSG established guidelines in 1975 to ensure that the states
that failed to sign the NPT—India, Pakistan, and Israel—were excluded
from the benefits of nuclear trade.9 The NSG waiver for India, however,
diminishes the non-nuclear weapons states’ incentive to belong to the
NPT.10 India now receives the same benefits of nuclear trade that NPT
parties do but is not required to sign the NPT, to relinquish its nuclear
weapons, or to adhere to the other provisions of the treaty.11 The
2 Treaty on the Non-Proliferation of Nuclear Weapons pmbl., July 1, 1968, 21 U.S.T. 483,
729 U.N.T.S. 161 [hereinafter NPT]; see A Legacy Project, Economist, Sept. 13, 2008, at 49,
available at http://www.economist.com/world/asia/displaystory.cfm?story_id=12209631.
3 Quantum Politics, supra note 1, at 48–49.
4 Erika Kinetz, India Open to Nuclear Business with France, Russia, Livemint, Sept. 26, 2008,
http://www.livemint.com/2008/09/26220917/India-open-to-nuclear-business.html?d=1.
5 A Legacy Project, supra note 2, at 49.
6 See NPT, supra note 2, arts. II–VI.
7 Id.
8 See Marvin Miller & Lawrence Scheinman, Israel, India, and Pakistan: Engaging the
Non-NPT States in the Nonproliferation Regime, 33 Arms Control Today 15, 16 (2003), available at http://www.armscontrol.org/act/2003_12/MillerandScheinman.
9 See Daniel Horner, G-8 Tightens Nuclear Export Rules, 39 Arms Control Today 33, 33
(2009), available at http://www.armscontrol.org/act/2009_09/G8; George Perkovich, Dir.,
Nuclear Pol’y Program, Carnegie Endowment for Int’l Peace, A Realist Case for Conditioning the U.S.-India Nuclear Deal, Address at a Nonproliferation Policy Education Center
(May 15, 2005), available at http://www.carnegieendowment.org/publications/index.
cfm?fa=view&id=18371.
10 Perkovich, supra note 9.
11 Glenn Kessler, Senate Backs Far-Reaching Nuclear Trade Deal with India, Wash. Post, Oct.
2, 2008, at A17, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/
10/01/AR2008100100533.html.
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breakdown of the NPT could have dire implications for the nuclear
nonproliferation regime and for global security.12
Part I of this Note discusses the history of the nonproliferation
movement with emphasis on the origins of the NPT and the NSG. In
addition, this section highlights India’s relationship vis-à-vis the nuclear
nonproliferation regime and provides context for the United States’
pursuit of a nuclear agreement with India. Part II examines the framework of the NPT and the NSG’s role in protecting the exclusivity of the
benefits of NPT membership. This section also identifies how the NSG
waiver for India may now undermine these NPT benefits. Lastly, Part III
addresses the need for the nuclear nonproliferation regime to engage
non-NPT states and evaluates the adequacy of the NSG waiver in doing
so. This section then predicts the impact that the NSG waiver will have
on the effectiveness of the NPT and suggests ways to mitigate the damage to the nuclear nonproliferation regime.
I. Background
A. “Atoms for Peace” and the Birth of the Nonproliferation Movement
When President Eisenhower took office in 1953, he faced the difficult task of managing the global spread of nuclear weapons.13 At that
time, only the United States, Great Britain, and the Soviet Union had
successfully developed nuclear weapons.14 Many other states, however,
sought to acquire the sophisticated technology required to build nuclear weapons or generate nuclear energy for civilian use.15 Eisenhower
faced the choice of either concealing U.S. nuclear technology or sharing it with other states for peaceful energy-generating purposes on the
condition that they promise not to divert the technology to develop
nuclear weapons.16
12 See Saira Yamin, The U.S., India and the Elusive 123 Deal, Foreign Pol’y in Focus,
Sept. 7, 2007, http://www.fpif.org/fpiftxt/4528.
13 Dwight D. Eisenhower, U.S. President, Address to the 470th Plenary Meeting of the
United Nations General Assembly (Dec. 8, 1953).
14 U.S. Department of Energy, Office of History & Heritage Resources, The Manhattan
Project: An Interactive History, http://www.cfo.doe.gov/me70/manhattan/proliferation.htm
(last visited Mar. 15, 2010).
15 Peter R. Lavoy, The Enduring Effects of Atoms for Peace, 33 Arms Control Today 26,
29 (2003), available at http://www.armscontrol.org/act/2003_12/Lavoy.
16 Id.
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Opting for the latter course, Eisenhower collaborated with other
nuclear supplier states to create the “Atoms for Peace” program.17
Through this initiative, nuclear supplier states assisted non-nuclear
weapons states in building nuclear reactors.18 In addition, “Atoms for
Peace” created the International Atomic Energy Agency (IAEA), an
independent agency that reports to the United Nations,19 to enforce
safeguards to prevent recipient states from diverting acquired technology to build nuclear weapons.20 Although some herald “Atoms for
Peace” as a successful multilateral effort to stem widespread nuclear
proliferation, critics claim that it actually accelerated nuclear proliferation.21 India, Pakistan, and Israel each diverted assistance received
through “Atoms for Peace” to develop nuclear weapons.22
B. The NPT and India’s Non-Adherence
Largely modeled on “Atoms for Peace,”23 the NPT opened for signature in 1968.24 Today, 190 countries in the world are parties to the
treaty.25 The treaty recognizes the five states that had developed nuclear
weapons prior to 1967 as nuclear weapons states26—the United States,
Russia, Great Britain, France, and China27—and requires that these
states gradually disarm their nuclear arsenals and share technology to
assist non-nuclear weapons states in building nuclear reactors for
peaceful energy-generating purposes.28 All other states are recognized
as non-nuclear weapons states and are prohibited from developing or
acquiring nuclear weapons.29
17 Zia Mian & Alexander Glaser, A Frightening Nuclear Legacy, 64 Bull. Atomic Scientists 42, 42 (2008).
18 Id.
19 International Atomic Energy Agency, The “Atoms for Peace” Agency, http://www.
iaea.org/About/index.html (last visited Mar. 15, 2010).
20 Lavoy, supra note 15, at 27–29.
21 Id. at 26.
22 Id.
23 Id. at 29.
24 United Nations Office for Disarmament Affairs, Treaty on the Non-Proliferation of
Nuclear Weapons, http://www.un.org/disarmament/WMD/Nuclear/NPT.shtml (last visited
Mar. 15, 2010).
25 Id.
26 NPT, supra note 2, art. IX.
27 Federation of American Scientists, Treaty on the Non-Proliferation of Nuclear Weapons, http://www.fas.org/nuke/control/npt/ (last visited Mar. 15, 2010).
28 NPT, supra note 2, arts. IV–VI.
29 Id. art. II.
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India is one of four states in the world that is not a member of the
treaty.30 While India, Israel, and Pakistan never signed the treaty, North
Korea withdrew in 2003 because it sought to develop nuclear weapons.31 India refused to sign the treaty largely because it sought a nuclear deterrent to stave off threats from its neighbors Pakistan and China, with which India has enduring border disputes.32 Moreover, India
objected to the lack of an ethical rationale for the distinction between
nuclear weapons states and non-nuclear weapons states.33
C. The Role of the NSG in the Nonproliferation Regime
The NSG was formed in 1975 to “clamp down” on abuse of nuclear
technology provided for commercial purposes but converted into nuclear weapons programs.34 The group was created in response to India’s 1974 test of a nuclear weapon constructed with technology acquired under “Atoms for Peace.”35 The test revealed that non-weapons
specific nuclear assistance could be readily converted into weapons development programs.36 The NSG placed an embargo on nuclear trade
on all states that had failed to sign the NPT until they accepted the fullscope IAEA safeguards that the NPT requires.37
The NSG waiver for India is ironic because it exempts India from
the rules originally designed for it.38 The embargo was intended to penalize India for its abuse of nuclear technology provided for peaceful
purposes and to deprive it of the substantial benefits of nuclear trade.39
Indeed, India’s fledgling nuclear industry has suffered from the embargo because India lacks an abundance of uranium deposits and
therefore depends on trade to accumulate the materials necessary for
30 Federation of American Scientists, Treaty on the Non-Proliferation of Nuclear Weapons, http://www.fas.org/nuke/control/npt/ (last visited Mar. 15, 2010).
31 Id.
32 Brahma Chellaney, Professor of Sec. Studies, Ctr. for Policy Research in New Dehli,
The India-Pakistan-China Strategic Triangle and the Role of Nuclear Weapons, Address at
l’Institut Français des Relations Internationales Seminar (Mar. 15, 2002), available at http://
www.ifri.org/?page=contribution-detail&id=4218&id_provenance=97.
33 Munish Puri, India and the NPT—A Nuclear Existential Dilemma, Inst. for Peace &
Conflict Stud., May 6, 2005, http://ipcs.org/article/india/india-and-the-npt-a-nuclearexistential-dilemma-1731.html.
34 Miller & Scheinman, supra note 8, at 16.
35 Quantum Politics, supra note 1, at 48–49.
36 See Nuclear Suppliers Group, History of the NSG, http://www.nuclearsuppliersgroup.
org/history.htm (last visited Mar. 15, 2010).
37 Id.
38 Quantum Politics, supra note 1, at 48–49.
39 See id.
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nuclear fission.40 Moreover, India’s failure to develop a robust nuclear
industry has exacerbated its current energy crisis.41 Thus, the timing of
the waiver is puzzling considering that it was granted at precisely the
moment when the embargo is having its intended effect.42
D. Factors Underlying the U.S.-India Nuclear Agreement
The United States lobbied heavily and overcame resistance by various NSG suppliers to gain exception for India from NSG rules.43 Because the NSG operates by consensus, even one dissenting state could
block a measure.44 Austria, New Zealand, and Ireland initially objected
to the NSG waiver for India on the ground that it would set a dangerous precedent by rewarding India’s abuse of acquired nuclear technology.45 Despite their reservations, these states ultimately yielded to the
interests of states with heavier diplomatic clout and vested economic
interests in the waiver, such as Russia and France.46
There are several reasons why the United States was willing to
“bring its diplomatic muscle to bear on India’s behalf.”47 Most importantly, it believes that the nuclear agreement will forge a strategic alliance with India which will serve to counterbalance the region’s other
emerging power, China.48 Although President Bush may have pressed
for the deal primarily in order to bolster his Presidential “legacy”49 with
the achievement of strengthening Indo-American relations, the nuclear
agreement nevertheless received overwhelming support in both houses
of Congress.50
40 Id.
41 See Carin Zissis, India’s Energy Crunch, Council on Foreign Rel., Oct. 23, 2007,
http://www.cfr.org/publication/12200/indias_energy_crunch.html.
42 See Charles Ferguson, Reshaping the U.S.-India Nuclear Deal to Lessen the Nonproliferation
Losses, 38 Arms Control Today 15, 15–18 (2008), available at http://www.armscontrol.
org/act/2008_04/Ferguson.
43 Quantum Politics, supra note 1, at 48–49.
44 Wade Boese, NSG, Congress Approve Nuclear Trade with India, 38 Arms Control Today 27, 28 (2008), available at http://www.armscontrol.org/act/2008_10/NSGapprove.
45 See U.S.-India Nuclear Accord Approved, BBC News, Sept. 6, 2008, http://news.
bbc.co.uk/2/hi/south_asia/7601932.stm.
46 See Boese, supra note 44, at 28.
47 Quantum Politics, supra note 1, at 48–49.
48 Demetri Sevastopulo, U.S.-India Nuclear Deal Clears First Hurdle, Fin. Times (London)
Sept. 28, 2008, http://www.ft.com/cms/s/0/bdff77de-8d7f-11dd-83d5–0000779fd18c.html.
49 A Legacy Project, supra note 2, at 49.
50 See Boese, supra note 44, at 28. The House of Representatives approved the nuclear
deal 298 to 117 on Sept. 27, 2008, and the Senate approved the deal 86 to 13 on Oct. 1,
2008. Id.
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Furthermore, proponents of the agreement claim that it officially
brings India into the nonproliferation fold and rewards India for its
voluntary nonproliferation commitment over the last thirty years.51 In
spite of its non-adherence to the NPT, India has abided by many nonproliferation norms.52 For instance, India has voluntarily adopted the
strict export regulations of the NSG and refused to share nuclear technology with rogue states such as North Korea, something which cannot
be said of neighboring Pakistan.53 India has also imposed a strict safeguards regime on its own nuclear facilities and criminalized the trade
and brokering of sensitive nuclear technology.54
Finally, supporters of the deal justify the NSG waiver as a necessary
means of combating global climate change.55 India is the world’s fifth
largest consumer of energy, but nuclear energy amounts to only three
percent of its total output.56 India’s energy consumption will continue
to rise as its economy expands.57 A transition from dependence on fossil fuels to nuclear energy will allow India to reduce its carbon footprint
because generating nuclear energy produces no carbon emissions.58
II. Discussion
A. The NPT Framework
The NPT rests on three pillars: nonproliferation, disarmament,
and the peaceful use of nuclear energy.59 Signatory members’ commitment to nonproliferation is found in Articles I, II, and III of the
treaty.60 Article I prohibits the five nuclear weapons states from transferring nuclear weapons to non-nuclear weapons states or assisting or
encouraging them in any way to manufacture nuclear weapons.61 Critics of the NSG waiver claim that nuclear trade with India violates weap51 See Esther Pan & Jayshree Bajoria, The U.S.-India Nuclear Deal, Council on Foreign
Rel., Oct. 2, 2008, http://www.cfr.org/publication/9663/.
52 See id.
53 Id.
54 Id.
55 William S. Cohen, Op-Ed., The India Nuclear Deal: The Merits, Forbes, Sept. 30, 2008,
http://www.forbes.com/2008/09/30/india-nuclear-senate-oped-cx_wc_0930cohen.html.
56 See Zissis, supra note 41.
57 See id.
58 Cohen, supra note 55.
59 Jenny Nielsen, Engaging India, Israel and Pakistan in the Nuclear Non-Proliferation Regime, 86 Disarmament Dipl. 13, 14 (2007), available at http://www.acronym.org.uk/dd/
dd86/86jn.htm.
60 NPT, supra note 2, arts. I–III.
61 Id. art. I.
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ons states’ Article I obligations because it assists India’s nuclear weapons program.62 Although the NSG waiver prohibits India from using
imported nuclear technology for weapons-producing purposes, the
flow of uranium imports for civilian reactors will free up more of India’s domestic uranium for weapons-grade enrichment.63 Whether this
indirect aid to India’s nuclear weapons industry constitutes assistance
in violation of Article I of the NPT remains an open question.64
Meanwhile, Article II provides that non-nuclear weapons states
may not receive, manufacture, or acquire nuclear weapons and must
submit to IAEA safeguards to prevent them from diverting civilian nuclear resources to build nuclear weapons.65 Abandoning nuclear weapons ambitions was a serious decision for many states, especially those
with nuclear weapons capabilities.66 Ultimately though, these states
concluded that assistance for civilian nuclear programs outweighed the
military utility or prestige of nuclear weapons.67
In Article VI of the treaty, nuclear weapons states and non-nuclear
weapons states agree to “pursue negotiations in good faith on disarmament measures relating to cessation of the nuclear arms race at an
early date and to nuclear disarmament.”68 The vagueness of this provision’s language has allowed weapons states to justify retention of their
nuclear arsenals.69 Nevertheless, the United States and Russia, which
possess the largest nuclear arsenals by far, have substantially reduced
the size of their stockpiles.70 Disarmament is inextricably linked to
nonproliferation because weapons states will never fully disarm until
they are confident that nuclear proliferation does not threaten their
security.71
62 Pan & Bajoria, supra note 51.
63 Id.
64 See Ashley J. Tellis, Atoms for War? U.S.-India Civilian Nuclear Cooperation and India’s
Nuclear Arsenal, Carnegie Endowment for Int’l Peace, June 2006, http://www.carnegie
endowment.org/files/atomsforwarfinal4.pdf (analyzing whether the United States’ assistance to India constitutes a violation of Article I of the NPT).
65 NPT, supra note 2, art. III.
66 Interview by Renee Montagne with Mitchell Reiss, Senior Assoc., Ctr. for Strategic &
Int’l Studies, in Culver City, CA (NPR radio broadcast Apr. 17, 2006), available at http://
www.npr.org/templates/story/story.php?storyId=5345504.
67 Id.
68 NPT, supra note 2, art. IV.
69 See Q&A: Nuclear Disarmament, BBC News, Dec. 11, 2006, http://news.bbc.co.uk/
2/hi/in_depth/6103398.stm.
70 Id.
71 See Sergio Duarte, High Representative for Disarmament Affairs, Remarks at United
Nations Brainstorming Session on Disarmament and Nonproliferation: Breaking the Sta-
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Article IV of the treaty discusses members’ inalienable right to use
nuclear energy for peaceful purposes.72 Article V further provides that
nuclear technology must be shared on a “non-discriminatory basis.”73
Most non-nuclear weapons states signed the NPT under the assumption
that peaceful nuclear assistance would be exclusive to signatory members of the treaty.74 The opening of nuclear trade with India, however,
exposes a flaw of the NPT: no provision prohibits nuclear supplier
states from providing civilian nuclear assistance to states outside the
treaty.75 Without such exclusivity rights, it is unclear why a non-nuclear
weapons state would continue to remain a party to the treaty.76
Significantly, Article X allows a party to the treaty the right to withdraw if “extraordinary events, related to the subject matter of this treaty, have jeopardized the supreme interests of its country,” as long as it
gives three months notice.77 North Korea, which withdrew from the
treaty in 2003, three years before it tested its first nuclear weapon, is the
only country to exercise this provision.78 Although the withdrawal provision has historically not been a threat to the sustained vitality of the
NPT, the commencement of nuclear trade with a non-adherent state
such as India may give some countries reason to question their continued NPT membership and to consider withdrawal.79
B. The Implications of the NSG Waiver
Since its inception in 1975, the NSG has excluded non-NPT members who refuse to submit to IAEA safeguards from the benefits of nu-
lemate (Aug. 11, 2007), available at http://disarmament.un.org/speech/duarte11082007.
htm.
72 NPT, supra note 2, art. IV.
73 Id. art. V.
74 See Daryl Kimball, The Nuclear Nonproliferation Treaty (NPT) at a Glance, Arms Control Ass’n, http://www.armscontrol.org/factsheets/nptfact (last visited Mar. 15, 2010).
75 See Paul Reynolds, Nuclear Weapons: Can They Be Stopped?, BBC News, Sept. 22, 2004,
http://news.bbc.co.uk/2/hi/americas/3680418.stm.
76 See Pavel Padvig, A Silver Lining to the U.S.-India Nuclear Deal, Bull. Atomic Scientists, Oct. 14, 2008, http://www.thebulletin.org/web-edition/columnists/pavel-podvig/asilver-lining-to-the-us-india-nuclear-deal.
77 NPT, supra note 2, art. X.
78 See Daryl Kimball, Chronology of U.S.-North Korean Nuclear and Missile Diplomacy, Arms
Control Ass’n, http://www.armscontrol.org/factsheets/dprkchron (last visited Mar. 15,
2010).
79 See Ashton B. Carter, How Washington Learned to Stop Worrying and Love India’s Bomb,
Foreign Aff., Jan. 10, 2007, http://www.foreignaffairs.com/ (enter article title in search
box; then follow hyperlink).
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clear trade.80 The NSG, therefore, fills the gap in the NPT that threatened to diminish the non-nuclear weapons states’ imperative to remain
members.81 The NSG waiver for India, however, reopens this fissure in
the NPT by undermining the exclusivity of rights to nuclear trade it
once protected.82 Some question whether the waiver is the beginning
of a slippery slope of exemption for current or potential proliferators.83
Granted, the NSG is not likely to provide another waiver in the
near term.84 The other three non-adherent states—Israel, Pakistan, and
North Korea—are much more at odds with the nonproliferation regime.85 Israel, for instance, shrouds its nuclear arsenal in secrecy and
does not formally acknowledge it for fear of provoking a nuclear arms
race in the Middle East.86 Granting a similar waiver to Israel would surely infuriate Israel’s enemies in the region who have abided by their
nonproliferation obligations.87 Pakistan, meanwhile, has lost credibility
with the nonproliferation regime because of its sharing of nuclear secrets with rogue states such as North Korea and Iran.88 Likewise, North
Korea is unlikely to obtain such a waiver because of its past defiance of
NPT obligations.89 Prior to its withdrawal from the treaty in 2003,
North Korea repeatedly reneged on its promises not to use nuclear
technology for weapons-producing purposes and frequently denied
IAEA inspectors access to its nuclear facilities.90
Moreover, the NSG waiver for India includes several conditions
intended to limit the damage to the nonproliferation regime.91 These
conditions include: India’s formal pledge to sustain its voluntary moratorium on nuclear testing; India’s adoption of NSG guidelines regarding nuclear export restrictions; and India’s acceptance of IAEA safe80 See Daryl Kimball, Nuclear Suppliers Group (NSG) at a Glance, Arms Control Ass’n,
May 2006, http://www.armscontrol.org/factsheets/NSG .
81 See Daryl Kimball, Text, Analysis, and Response to NSG “Statement on Civil Nuclear Cooperation with India,” Arms Control Ass’n, Sept. 6, 2008, http://www.armscontrol.org/node/3345.
82 See id.
83 Miller & Scheinman, supra note 8, at 18–19.
84 See Nicholas Burns, Former Undersecretary of State for Pol. Aff., Remarks at Brookings Institution Panel Discussion: The U.S.-India Nuclear Agreement ( July 30, 2008),
available at http://www.brookings.edu/events/2008/0730_india.aspx.
85 See Miller & Scheinman, supra note 8, 16–19.
86 Id.
87 Nielsen, supra note 59, at 14.
88 See Miller & Scheinman, supra note 8, at 18.
89 See id.
90 Kongdan Oh & Ralph Hassig, North Korea: A Rogue State Outside the NPT Fold, Brookings Inst. Foreign Pol’y Agenda, Mar. 1, 2005, http://www.brookings.edu/articles/2005/
0301northkorea_hassig.aspx.
91 See Kimball, supra note 81.
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211
guards on several of its nuclear facilities.92 In theory, these conditions
serve to “bring India into the nuclear nonproliferation mainstream”
and to justify the NSG’s exceptional treatment of India.93
Nevertheless, the NSG waiver for India may prompt several NPT
members to consider withdrawing from the treaty.94 Iran, widely suspected to be covertly developing nuclear weapons, may argue that it is
even more entitled to relief from nonproliferation rules because, unlike India, it has adhered to the NPT since its creation.95 Other states
that have kept clean nonproliferation records despite nuclear weapons
capabilities may infer from the India precedent that if they withdraw
from the NPT and develop nuclear weapons, the NSG would gradually
accommodate them too.96 In the near term, states in volatile regions
such as Japan, South Korea, Turkey, and Egypt may initiate nascent fissile material production for bomb-making purposes as a means of
hedging their bets.97
III. Analysis
A. The Urgency and Delicacy of Engaging the Non-NPT States
As several commentators have expressed, there is an urgent need
for the nonproliferation regime to engage states that do not adhere to
the NPT.98 The nuclear weapons capabilities of these states affect the
regional security of NPT members.99 The presence of nuclear weapons
in India and Pakistan reinforces China’s need for a nuclear deterrent
while Israel’s nuclear arsenal fuels Iran’s pursuit of one.100 Meanwhile,
all NPT members fret that the non-adherent states will disseminate nuclear weapons technology to rogue states or terrorists.101 Lack of universality in nonproliferation agreements and looming nonproliferation
threats stymie disarmament talks and further weaken the NPT.102
92 Id.
93 Id.
94 See Perkovich, supra note 9.
95 Id.
96 Id.
97 Id.
98 See, e.g., Miller & Scheinman, supra note 8, at 18–19; Nielsen, supra note 59, at 13–14.
99 See Nielsen, supra note 59, at 16–17.
100 Id.
101 See Mary H. Cooper, Nuclear Proliferation and Terrorism, 14 Cong. Q. Researcher 297,
299–301 (Apr. 2, 2004), available at http://www.iaea.org/NewsCenter/Focus/cqr_proliferation.pdf.
102 Nielsen, supra note 59, at 13.
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Because it is unforeseeable that the non-adherent states will relinquish their nuclear weapons and sign the NPT, some experts suggest
alternative ways to obtain nonproliferation commitments.103 One important means of engagement would be to acquire their signature to
the Comprehensive Test Ban Treaty (CTBT).104 Testing nuclear weapons is the only reliable way to ensure their readiness for deployment in
a military encounter.105 Absent nuclear weapons tests, it may be less
likely that states would use them.106 Another important step for nonproliferation would be the non-adherent states’ adoption of the Fissile
Material Cutoff Treaty (FMCT).107 The FMCT would ban the production of any additional fissile material that could be used to produce nuclear weapons.108 Any engagement of outlier states must proceed carefully because making large concessions may erode the value of the
nonproliferation commitments of the NPT members.109
The NSG waiver for India fails to bring India into the nonproliferation fold and enacts lasting damage on the nonproliferation regime.110 Most significantly, the waiver severely undermines the NPT and
may provoke several non-weapons states to withdraw and to institute
nuclear weapons programs.111 This result would be devastating not only
for the nonproliferation regime but also for global security at-large.112
The proliferation of nuclear weapons into the hands of more states increases the scenarios in which nuclear weapons plausibly may be
used.113 This increased utility of nuclear weapons will fuel arms races
and lead to a breakdown of collective security arrangements.114
103 Edward Markey & Ellen Tauscheur, Op-Ed., Don’t Loosen Nuclear Rules for India, N.Y.
Times, Aug. 20, 2008, at A23, available at http://www.nytimes.com/2008/08/20/opinion/
20markey.html.
104 Id.
105 Perkovich, supra note 9.
106 See id.
107 Miller & Scheinman, supra note 8, at 18–19.
108 Id. at 18.
109 Perkovich, supra note 9.
110 Kimball, supra note 81.
111 See Perkovich, supra note 9.
112 See id.
113 Kofi Annan, Sec’y-Gen., United Nations, Lecture on Nuclear Disarmament and
Nonproliferation (Nov. 28, 2006), available at http://www.un.org/News/Press/docs/2006/
sgsm10767.doc.htm.
114 See Perkovich, supra note 9.
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B. Balancing the Costs and Benefits of the NSG Waiver
The nonproliferation commitments India made to obtain the NSG
waiver are “not in any way equivalent to the legal obligations and commitments made by the members states of the NPT.”115 The waiver acknowledges India’s promise to separate its civilian reactors from its military reactors and to place all existing civilian reactors under IAEA
safeguards.116 This is a “major step,” some experts say, because the nonproliferation regime has formerly failed to induce India to accept any
international safeguards on its nuclear facilities.117 India’s commitment, however, does not include future nuclear facilities.118 Indian
Prime Minister, Manmohan Singh, insists that India reserves the right
to determine whether future reactors, either civilian or military, are
subject to IAEA safeguards.119
The NSG waiver also fails to clarify whether supplier states can suspend nuclear trade with India if it resumes testing nuclear weapons.120
Although the waiver recognizes India’s formal pledge to continue its
voluntary moratorium on nuclear testing, India maintains that it retains
the “right to undertake future tests, if it is necessary.”121 Most supplier
states will likely suspend nuclear trade with India should it resume testing, but the waiver should have established clear sanctions for India in
such a scenario.122
Another shortcoming of the waiver is that it does not limit India’s
future production of weapons-grade fissile material.123 This commitment would have been a significant victory for the nonproliferation
regime since all nuclear weapons states except China are taking steps to
limit their production of fissile material.124 It is likewise lamentable that
the safeguards imposed on India’s civilian reactors will not apply to the
fissile material produced prior to India’s nuclear agreement with the
United States.125
115 Kimball, supra note 81.
116 Pan & Bajoria, supra note 51.
117 Id.
118 Id.
119 Id.
120 See Kimball, supra note 81.
121 Rama Lakshmi, In India, Outcry Over U.S. Letter, Wash. Post, Sept. 4, 2008, http://
www. washingtonpost.com/wp-dyn/content/article/2008/09/03/AR2008090303197.html.
122 See Kimball, supra note 81.
123 See Pan & Bajoria, supra note 51.
124 Kimball, supra note 81.
125 See Pan & Bajoria, supra note 51.
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Unlike NPT members, India has made no formal commitment to
disarmament.126 Given that disarmament ultimately requires the universal commitment of nuclear weapons states, India’s recalcitrance will
continue to hamper the disarmament movement, already the weakest
pillar of the NPT.127 India’s continued buildup of nuclear weapons may
spark a nuclear arms race with China and Pakistan, which would further destabilize an already combustible region.128
To be sure, the NSG waiver does harmonize India’s nuclear export
restrictions with those of the NSG.129 Bringing India’s export control
system in line with the NSG will help quell the fears of those who worry
about the transfer of sensitive nuclear weapons technology to rogue
states or terrorists.130 Nevertheless, this commitment hardly brings India further into the nonproliferation fold because India already had a
rigorous export control system with which nonproliferation experts
were largely satisfied.131 The NSG likely could have exacted more significant concessions from India in light of its immediate energy crisis.132 By opening nuclear trade with India and permitting it to possess
and to build nuclear weapons, the NSG is essentially allowing India to
have its yellowcake and eat it too.133
C. The Impact of the NSG Waiver on the NPT
The NSG waiver undercuts the NPT because it “devalues the restraint” the non-nuclear weapons states of the NPT have exercised in
forsaking nuclear weapons.134 Many of these states are beginning to
question their allegiance to a nonproliferation regime that rewards India’s “obstinacy” and enhances its “status” in the process.135 In attempt126 Kimball, supra note 81.
127 See Cooper, supra note 101, at 301, 310.
128 See Kimball, supra note 81.
129 Id.
130 See Pan & Bajoria, supra note 51.
131 See id.
132 See Ferguson, supra note 42, at 18.
133 Richard Haass, Iran, India, and the Case for Double Standards, Council on Foreign
Rel., May 14, 2006, http://www.cfr.org/publication/10685/india_iran_and_the_case_for_
double_standards.html. Yellowcake is milled uranium oxide, a compound which can be
enriched to make weapons-grade uranium. Brendan I. Koerner, What Is Yellowcake, Anyway?, Slate, July 18, 2003, http://www.slate.com/id/2085848/.
134 Perkovich, supra note 9.
135 See, e.g., Brad Glosserman & Bates Gill, Op-Ed., Bush’s Nuclear Deal with India, Bigger
Consequences to Consider, Japan Times, Oct. 29, 2008, http://search.japantimes.co.jp/cgibin/eo20081029a1.html; U.S.-India Nuclear Pact—A Double Standard?, Deutsche Welle,
Mar. 3, 2006, http://www.dw-world.de/dw/article/0,,1922131,00.html.
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ing to court NPT outlier states into the larger nonproliferation fold, the
NSG has effectively alienated many NPT members.136 States with nuclear capabilities in volatile regions may strongly consider withdrawing
from the NPT, initiating nuclear weapons programs, and playing the
waiting game for accommodation from the nonproliferation regime.137
For instance, Iran is enriching weapons-grade uranium, and some
believe it will soon develop its first nuclear weapon.138 The sustained
U.S. military presence on its eastern and western borders and its persistent hostility towards Israel are likely to spur its pursuit of a nuclear deterrent.139 The NSG waiver for India weakens the moral force of any
argument against Iran obtaining nuclear weapons because it implicitly
recognizes India’s right to possess them despite breaking nonproliferation rules in acquiring them.140
Even states with clean nonproliferation records may reconsider
their nuclear options now that the primary benefit of NPT membership,
access to peaceful nuclear energy, has been extended to non-NPT
members.141 States in volatile regions such as Japan, South Korea, Egypt,
and Turkey may wonder whether they too can attain access to nuclear
trade, but from outside the NPT.142 Since North Korea’s successful nuclear test in 2006, Japan and South Korea feel increasingly vulnerable
despite being under the U.S. security umbrella.143 The United States’
failure to prevent a nuclear-armed North Korea and its shifting of alliances between Pakistan and India in South Asia have begun to undermine its credibility as a reliable ally in Asia.144 Iran’s defection from the
NPT would be damaging to the NPT, but the withdrawal of a state with a
clean nonproliferation record like Japan would be crippling.145
136 See Nielsen, supra note 59, at 13.
137 Perkovich, supra note 9.
138 See Seymour Hersh, The Iran Plans, New Yorker, Apr. 17, 2006, at 30, http://www.
newyorker.com/archive/2006/04/17/060417fa_fact.
139 Erich Marquardt, Why Nuclear Weapons May Be in Iran’s National Interests, Power &
Int. News Rep., Aug. 20, 2003, http://www.pinr.com/report.php?ac=view_report&report_
id=80&language_id=1.
140 See Op-Ed., Mr. Bush’s Asian Road Trip, N.Y. Times, Mar. 7, 2006, at A20, available at
http://www.nytimes.com/2006/03/07/opinion/07tue1.html?incamp=article_popular.
141 Perkovich, supra note 9.
142 See id.
143 See Glosserman & Gill, supra note 135.
144 See id.
145 See Strobe Talbott, President, Brookings Inst., Remarks at Brookings Institute Panel
Discussion: The U.S.-India Nuclear Agreement ( July 30, 2008), available at http://www.
brookings.edu/events/2008/0730_india.aspx).
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Of course, it is unlikely that the NSG waiver will provoke a mass
exodus from the NPT.146 Nuclear weapons are very expensive to build,
yet they provide little military utility.147 The devastating impact of the
atomic bombs dropped over Japan contributed to the nuclear taboo
that has formed against using them.148 Despite its nuclear standoff with
Pakistan, even India has adopted a nuclear “no first use policy.”149 In
addition, many states would not take the gamble of withdrawing from
the NPT because they might not gain an NSG waiver.150 Few states have
energy markets near the size of India’s and would not attract the level
of interest that India did among nuclear suppliers.151
Nevertheless, nuclear weapons are still largely believed to bestow
“great power” prestige upon their possessors.152 Iran, which views itself
as a great civilization, pursues nuclear weapons capabilities with the
“widespread and enthusiastic” support of its people.153 Possessing a nuclear weapon may deter a larger state with much more advanced military forces from invading.154 The threat of developing nuclear weapons
has been used as a bargaining chip by North Korea to attain aid from
the international community to ensure regime survival.155 Some states
may determine that acquiring a military “equalizer” or garnering respect or attention at home or abroad is worth the risk of temporary
alienation in the nonproliferation regime.156
D. Mitigating the Damage to the Nonproliferation Regime
To prevent the complete breakdown of the NPT, the NSG should
narrow the scope of its waiver for India as much as possible.157 First, the
146 See Burns, supra note 84.
147 Reiss, supra note 66.
148 Nina Tannenwald, Assoc. Professor, Watson Inst. Int’l Studies, Prepared Remarks to
the 2005 Carnegie Endowment Nonproliferation Conference: The Taboos, Secrets and Hidden History of Nuclear Weapons (Nov. 7, 2005), available at http://www.carnegieendowment.
org/static/npp/2005conference/presentations/tannenwald_remarks.pdf.
149 Federation of American Scientists, Nuclear Weapons, http://www.fas.org/nuke/
guide/india/nuke/index.html (last visited Mar. 15, 2010).
150 Perkovich, supra note 9.
151 See Burns, supra note 84.
152 Christoper W. Hughes, North Korea’s Nuclear Weapons: Implications for the Nuclear Ambitions of Japan, South Korea, and Taiwan, 3 Asia Pol’y 75, 81 (2007).
153 Esther Pan, Iran: The Nuclear Threat, Council on Foreign Rel., Sept. 6, 2005,
http://www.cfr.org/publication/8830/.
154 Hughes, supra note 152, at 80.
155 Id. at 81.
156 See id.
157 See Kimball, supra note 81.
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The NSG Waiver for India & the Nuclear Nonproliferation Regime
217
NSG should clarify that any additional nuclear testing would necessitate
a complete suspension of nuclear trade with India.158 Permitting India
to get away with conduct that the 180 signatories of the CTBT condemn would weaken an international norm that has gradually built
strength in the last few decades.159 Second, the NSG should require
that any future bilateral agreements make all current and future Indian
nuclear reactors subject to IAEA safeguards.160 Such a requirement
would nullify the loophole in the U.S.-India nuclear agreement that
permits India to designate future reactors as civilian or military.161 Accordingly, India’s weapons-making capacities and ability to stockpile
fissile material would be curtailed.162 Finally, the NSG should limit all
reprocessing and enrichment transfers of nuclear material to NPT
members, which would exclude India.163 This measure would deprive
India of the opportunity to divert sensitive “dual-use” technology for
weapons-producing purposes against its promises, as it has done in the
past.164
Conclusion
The damage is done. The NSG waiver has permanently discredited
both the NSG and the NPT, which, along with the IAEA, have been the
bulwarks of the nonproliferation regime. By creating a double standard
for India, the NSG flouted its own rules and undermined the exclusive
rights to nuclear energy that NPT members formerly enjoyed. Contrary
to the claims of proponents of the NSG waiver for India, it fails to bring
India into the nonproliferation fold and alienates the NPT members
that have abided by their nonproliferation commitments. Several of
these states may withdraw from the treaty and develop their own nuclear
arsenals. Such a result would trigger the unraveling of the nonproliferation regime and threaten global security. Alas, the only action that can
now be taken is for the NSG to narrow the scope of its waiver for India
to limit further damage to the NPT and the nonproliferation regime.
158 Id.
159 See Perkovich, supra note 9.
160 See Pan & Bajoria, supra note 51.
161 See id.
162 See Ferguson, supra note 42, at 18–21.
163 Id.
164 Id.