BOSTON COLLEGE
INTERNATIONAL AND COMPARATIVE
LAW REVIEW
Vol. XXIX
Spring 2006
No. 2
ARTICLE
O CANADA!: THE STORY OF RAFFERTY, OLDMAN,
AND THE GREAT WHALE
Oliver A. Houck
[pages 175–244]
Abstract: In the late twentieth century, environmental policy swept the
world, and among its primary instruments were processes for evaluating
the adverse impacts of proposed actions. In all countries these processes
quickly came into conºict with established bureaucracies, none more
powerful and resistant to change than those in charge of water resources
development. They also conºicted, in many cases, with established ideas
of governance, right down to principles of federalism, judicial review, and
the separation of powers. So it was in Canada, where in the late l980s
three water resources development schemes, each one more enormous,
initiated the commonwealth’s approach to environmental impact assessment and challenged the ability of the national government to protect
environmental values at all. The litigation was heavy and prolonged. In
the end, federal environmental authority gained a signiªcant foothold,
but one insufªcient to protect the natural and human resources at stake.
The litigation also illustrated, as has been the experience in the United
States, the critical importance of citizen enforcement actions and judicial
review in securing the objectives of environmental law.
NOTES
BUILDING FORTRESS INDIA: SHOULD A FEDERAL LAW BE
CREATED TO ADDRESS PRIVACY CONCERNS IN THE UNITED
STATES-INDIAN BUSINESS PROCESS OUTSOURCING
RELATIONSHIP?
Bryan Bertram
[pages 245–268]
Abstract: In the past few years, there has been a substantial surge in the
use of Indian vendors by U.S. businesses for the performance of business processes. These types of engagements, referred to as business process outsourcing, routinely involve the transfer of sensitive personal data
between U.S. and Indian ªrms. Thus, these types of transfers have
raised concerns over the security of such data. The United States currently regulates these data transfers by industry sector. This policy contrasts sharply with other jurisdictions such as Canada, Japan, and the
European Union where more broadly deªned regulations set principles
for the protection of data generally. This Note will examine whether the
United States should enact broader based legislation in order to regulate the growing trend of business process outsourcing to India and protect sensitive data that gives rise to personal privacy concerns.
WE ARE THE WORLD? JUSTIFYING THE U.S. SUPREME COURT’S
USE OF CONTEMPORARY FOREIGN LEGAL PRACTICE IN
ATKINS, LAWRENCE, AND ROPER
Andrew R. Dennington
[pages 269–296]
Abstract: Since 2002, the U.S. Supreme Court has consulted contemporary foreign legal judgments to help interpret, and dramatically expand,
the substantive scope of the Bill of Rights in three landmark cases. It has
not, however, explained when and why contemporary foreign legal materials are relevant to a principled, objective mode of constitutional interpretation. This Note represents an attempt to do so. It postulates two
rationales that could retrospectively justify the Court’s methodology in
Atkins v. Virginia (2002), Lawrence v. Texas (2003), and Roper v. Simmons
(2005). One is grounded in a theory of Anglo-American common law,
the other rests on jus cogens and customary international law. This Note
then compares the two and concludes that the jus cogens theory could
best address critics’ concerns that the use of foreign law will undermine
U.S. sovereignty, reduce civil liberties in this country, and vastly increase
judicial discretion.
HYDROELECTRIC POWER PRODUCTION IN COSTA RICA AND
THE THREAT OF ENVIRONMENTAL DISASTER
THROUGH CAFTA
R. Victoria Lindo
[pages 297–322]
Abstract: CAFTA’s ratiªcation threatens Costa Rica’s environmental integrity by permitting foreign investors virtual free reign to destroy its precious waterways through environmentally unsound methods of hydroelectric power production. While CAFTA contains provisions that appear
to protect the environments of the Central American signatory states, it
also contains provisions similar to NAFTA’s Chapter 11, which foreign investors have used to weaken environmental laws by suing those states that
have dared to enforce them. This Note explores existing environmental
laws in Costa Rica governing hydroelectric power production, including
its privatization. It also discusses and compares NAFTA’s Chapter 11 to
CAFTA’s Chapter 10 in order to illustrate the threat to Costa Rica’s waterways through private hydroelectric power production. This Note then
argues that, in order to preserve its waterways, Costa Rica must not ratify
CAFTA. Alternately, it argues that if Costa Rica does ratify CAFTA, the
state should consider adopting both preventative and remedial measures
to weaken its blow.
INTERNATIONAL SPAM REGULATION & ENFORCEMENT:
RECOMMENDATIONS FOLLOWING THE WORLD SUMMIT ON
THE INFORMATION SOCIETY
Meyer Potashman
[pages 323–352]
Abstract: Unsolicited bulk e-mail, or “spam,” is often called the scourge
of the information age. Because of the cross-border nature of the Internet, both governments and the private sector are facing many challenges in combating cross-border spam. In recent years, through the
World Summit on the Information Society (WSIS), the international
community has committed itself to ªght spam on a global level through
increased cooperation and enforcement of spam laws. This Note evaluates many of the issues involved in preventing cross-border spam, discusses the latest methods of enforcement in both the private and public
sectors, and recommends an approach to the problem in light of the
commitments made at WSIS.
FOR THE BEST INTERESTS OF THE CHILDREN: WHY THE
HAGUE CONVENTION ON INTERCOUNTRY ADOPTION NEEDS
TO GO FARTHER, AS EVIDENCED BY IMPLEMENTATION IN
ROMANIA AND THE UNITED STATES
Elisabeth J. Ryan
[pages 353–383]
Abstract: International adoption is a common occurrence in today’s society. In order to address the dangers linked with international adoption
such as baby trafªcking, the members of the Hague Conference on Private International Law produced the Hague Convention on Intercountry
Adoption in 1993, setting forth a minimum base of standards that every
ratifying government must abide by, placing the best interests of the child
above all other considerations. The United States, via the Intercountry
Adoption Act of 2000, is well on its way to fully realizing the Hague Convention mandates. Romania, however, has struggled to care for its children and subsequently imposed an international adoption ban. This Note
argues that the Hague Conference members need to amend the Hague
Convention in order to implement assistance for countries that may
struggle with its mandates. It also argues that, in order to avoid more nuanced problems in implementation, the Hague Convention should clarify
its vague language. Finally, it should include appeals and enforcement
procedures so that conºicts between two countries over an adoption proceeding can be dealt with by a third party.
O CANADA!: THE STORY OF RAFFERTY,
OLDMAN, AND THE GREAT WHALE
Oliver A. Houck*
Abstract: In the late twentieth century, environmental policy swept the
world, and among its primary instruments were processes for evaluating
the adverse impacts of proposed actions. In all countries these processes
quickly came into conºict with established bureaucracies, none more
powerful and resistant to change than those in charge of water resources
development. They also conºicted, in many cases, with established ideas
of governance, right down to principles of federalism, judicial review, and
the separation of powers. So it was in Canada, where in the late l980s
three water resources development schemes, each one more enormous,
initiated the commonwealth’s approach to environmental impact assessment and challenged the ability of the national government to protect
environmental values at all. The litigation was heavy and prolonged. In
the end, federal environmental authority gained a signiªcant foothold,
but one insufªcient to protect the natural and human resources at stake.
The litigation also illustrated, as has been the experience in the United
States, the critical importance of citizen enforcement actions and judicial
review in securing the objectives of environmental law.
Introduction
In the late 1980s, environmental law came to Canada, riding on
the backs of three water projects that, together, challenged the government’s approach to environmental protection right down to constitutional principles and the allocation of powers. The ªrst made environmental impact review law; the second made it constitutional; the
third made it work.
The litigation was ªerce and of ªrst impression. It was surrounded
by equally ªerce politics and the passions of people so thoroughly con* Professor of Law, Tulane University. The research assistance of Christa Fanelli,
Cashauna Hill and Tinnetta Rockquemore, Tulane Law School ’05, and Lena Giangrosso,
’07, is acknowledged with gratitude. For the author’s histories of similar United States
environmental cases, see Richard J. Lazarus & Oliver A. Houck, Environmental Law
Stories (2005); Oliver A. Houck, More Unªnished Stories: Lucas, Atlanta Coalition, and
Palila/Sweet Home, 75 U. Colo. L. Rev. 331 (2004); Oliver Houck, Unªnished Stories, 73 U.
Colo. L. Rev. 867 (2002); Oliver A. Houck, The Water, the Trees, and the Land: Three Nearly
Forgotten Cases That Changed the American Landscape, 70 Tul. L. Rev. 2279 (1995–96).
175
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Boston College International & Comparative Law Review
[Vol. 29:175
vinced they were in the right that they did not need to explain. Environmentalists took to the streets; Crown and Provincial Ministers
traded insults; First Nation tribes paddled a ºotilla in protest down the
Hudson River to the island of Manhattan; some people went to jail. Canadians then and since use words like “ªasco,” “embarrassment,” and
“long litany of screw ups” to describe the action.1 At the end of the day,
by hook and by crook, two of the projects were completed. The largest
and most complex, however, ceded to another vision of the environment, governance, and, at bottom, what water is for. They are known as
Rafferty-Alameda, Oldman, and the Great Whale.
It is no accident that these extraordinary challenges arose out of
water resource projects. There are two things about water that are all
but irreconcilable. One is pragmatic: it is the lifeline of every civilization on earth,2 and so it has fallen to civilization’s engineers to wall
off the ºoods, slake the droughts, divert the waters, and harness their
power—the Aswan Dam, the Tennessee Valley Authority—some of the
proudest monuments of humankind. And a few of the more regrettable.
The other thing about water is spiritual. The rivers and lakes that
refract the light, wash away sins and renew souls are the mark of baptism3 and the home of Siddhartha;4 they “make glad the City of
1 George N. Hood, Against the Flow: Rafferty-Alameda and the Politics of
the Environment 128 (1994) (stating that there were a litany of screwups); Carol Goar,
The Politics Behind Ottawa’s Concern for James Bay, Toronto Star, July 18, 1991, at A17 (stationg that it was a ªasco and an embarrassment).
2 A colleague and water lawyer in the ancient capital of Sevilla has written wryly of “the
peculiar tendency of rivers to ºow through cities.” Email from Maria Louisa Real, Counsel,
Confederación Hidrograªca de Guadalquivir, to author (Dec. 12, 2004) (on ªle with author).
3 Marilynn Robinson, Gilead 24–25 (2004), stating:
Ludwig Feuerbach says a wonderful thing about baptism. I have it marked.
He says, “Water is the purest, clearest of liquids; in virtue of this its natural
character it is the image of the spotless nature of the Divine Spirit. In short,
water has a signiªcance in itself, as water; it is on account of its natural quality
that it is consecrated and selected as the vehicle of the Holy Spirit. So far
there lies at the foundation of Baptism a beautiful, profound natural
signiªcance.”
Id.
4 Hermann Hesse, Siddhartha 118 (Hilda Rosner trans., New Directions 1951) (stating “there was a man at this ferry who was my predecessor and teacher. He was a holy man
who for many years believed only in the river and nothing else. He noticed that the river’s
voice spoke to him. He learned from it; it educated and taught him . . . .”); see also Margaret Mead, People and Places 266–67 (1959):
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O Canada!
177
God.”5 We are made of water. Every culture reveres it. There is something terrible about burying aquatic systems and their inhabitants,
entire ways of life, under a hundred miles of a hundred feet of darkness.6 For all time. Seen from this end of the spectrum, the engineer’s
triumph is a loss too painful to bear.
The environmental movement in the United States was born largely
of that pain. In the early twentieth century the Sierra Club, until that
point a gentriªed collection of weekend hikers, turned radical at the
prospect of converting a granite-peaked, waterfall-studded valley the
size of Yosemite into the Hetch Hetchy reservoir,7 and became the most
powerful environmental voice in the United States. Fifty years later it
would lose its federal tax exemption for lobbying against another government water project, Glen Canyon dam on the Colorado River.8 The
ªrst U.S. environmental lawsuit in modern times opposed the Storm
King Mountain power plant that threatened to kill millions of aquatic
organisms in the Hudson River,9 and the ªrst case to deªne impact assessment and send environmental law into orbit arose over thermal discharges from a nuclear power plant into the Chesapeake Bay.10 Water
Another religious practice which has come down through history is the use of
blessed water for special purposes—to purify the thing it touches, to remove
evil, or simply to bless and purify a person who wishes to pray or who has
ªnished praying. However, the idea that water is pure and can be used in special ways connected with religion is such a natural one for human beings to
have when they are trying to get closer to the supernatural world that we believe many different peoples have thought of it.
Id.
5 Psalms 46:4 (King James) (“There is a river, the streams whereof shall make glad the
city of God, the holy place of the tabernacles of the Most High.”).
6 See Hal Kane, The Dispossessed, World Watch, July/Aug. 1995, at 7, stating:
A World Bank study has found that public works projects in the developing
world now force more than 10 million people out of their homes every
year. . . . Large dams—about 300 are built each year–account for nearly half
the total. Even as objections to these projects are raised on environmental, as
well as humanitarian, grounds, even larger dams are being designed.
Id.
7 See Stewart L. Udall, The Quiet Crisis 121–22 (1963).
8 Thomas B. Allen, Guardian of the Wild: The Story of the National Wildlife
Federation, 1936–1986, at 147 (1987).
9 See generally Scenic Hudson Pres. Conference v. Fed. Power Comm’n, 354 F.2d 608
(2d Cir. 1965). For background on this case, see Unªnished Stories, supra note *, at 869–80.
10 See generally Calvert Cliffs’ Coordinating Comm. v. U.S. Atomic Energy Comm’n, 449
F.2d 1109 (D.C. Cir. 1971). For background on this case, see Unªnished Stories, supra note *,
at 876, 878, 880–93. The court’s opinion, which deªned the requirements for environmental impact assessment, was followed by a string of lawsuits challenging the U.S. Army
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[Vol. 29:175
was a primary driver for environmental law in the United States. As it
would be for Canada.
I. Water on the Plains: The Rafferty-Alameda Dams
Those who came to settle North America did not ªnd it easy anywhere, but some particularly harsh scenarios played out on the western
prairies which cut a wide swath north from Kansas and Nebraska,
through the Dakotas and across Alberta, Saskatchewan, and Manitoba.11 Lured on by railroad promotions that combined fantasy with
outright fraud, the prairie settlers broke the earth, ploughed under the
native grasses, planted wheat, lived in houses of sod, endured unimaginable winters, and prospered or failed by the rains. “[R]ain would follow the plough” declared the agronomists of the day,12 the theory being that the release of moisture from cultivated soil seeded the
atmosphere and prompted an ever-increasing cycle of precipitation. Of
course, the opposite happened.
Severe droughts in the late 1800s bankrupted platoons of settlers,
leading, among other things, to a call by U.S. Geological Survey chief
John Wesley Powell for the water-based zoning of the West.13 Railroad
and real estate boomers, threatened by the proposal, replied by driving Powell from ofªce, but they seized on one part of his vision: a series of water supply dams to feed their land scheme promotions. So
began federal water resources development in the western United
States.14 Thirty years later, the dust bowl threw a serious curve into
settlement on the plains, a curve from which they have not since fully
recovered and perhaps never can. Storms of snow and dirt rose from
the prairies, blackened the skies and, dumped loads that buried telephone poles as far east as Chicago and Albany.15 A Canadian who
lived through it recalls a joke about the Saskatchewan farmer who
Corps of Engineers and the Tennessee Valley Authority’s water resources projects directly.
See infra notes 50–51.
11 For classic descriptions of the hardships of prairie life, see, e.g., Willa Cather, O
Pioneers! (Houghton Mifºin 1988) (1913); Maria Sandoz, Old Jules (Hastings House
1960) (1935).
12 Udall, supra note 7, at 94. For a detailed critique of water resources development in
the western United States, see generally Marc Reisner, Cadillac Desert (1986).
13 See generally Wallace Stegner, Beyond the Hundredth Meridian: John Wesley
Powell and the Second Opening of the West (1982) (describing the life and proposals
of John Wesley Powell).
14 Id.; see also Udall, supra note 7, at 88–96.
15 Ian Frazier, Great Plains 196–97 (1989).
2006]
O Canada!
179
went out to cultivate his land and ended up ªnding it in Manitoba.16
When the winds ªnally died, the answer was: more dams.
A. A Case for the Engineers
The [U.S.] Army Corps of Engineers, arguably the preeminent
dam builders in the world, told us that it would take them eighteen
years to build the Rafferty and Alameda dams. . .[T]he Saskatchewan engineers responded with more than a little bravado and
smug nationalism that it would only take us three years. They were
wrong.
—George Hood, project manager, Rafferty-Alameda dams 17
George Hood lived the saga of the Rafferty-Alameda dams. He
helped plan them, promoted them, and suffered along with the other
occupants of the rollercoaster as they bounced among provincial and
national authorities and then the courts. He begins an account of his
experiences with the observation, “The predominating unit of time in
Saskatchewan is not the minute or the hour, or even the day, but the
season.”18 He means the growing season, of course, and for the farms
near Estevan in the south of the province it has been a hard ªght to
keep a crop of wheat on wafer-thin topsoil laced with stones and rocks
from the glacial valley of the Souris River. The landscape he saw was
“lacking in natural beauty.” Rather, it was strewn with oilªeld
pumpjacks and pipelines, spoil mounds from coal mines, two power
plants “frequently shrouding the city in an acidic haze,” and a hodgepodge of small dams and culverts designed to convert the feast-orfamine waters of the Souris river to human use.19 Clearly, to Hood,
this was a place that could use some engineering.
Unlike most western rivers, the Souris is fed only by rainfall, so in
wet years it can produce ºoods several miles wide, and the years in between will be so dry you can step across it in dress shoes.20 Respecting
no borders, the river rises in Saskatchewan, snakes South into North
Dakota, and then back up into Manitoba. The United States had been
busy on its stretch of the Souris, building dams for irrigation and ºood
control, and by the 1960s it had twenty-one dams in the watershed making claim to most of its ºows. It was not until the 1970s that Saskatche16 Hood, supra note 1, at 6.
17 Id. at 2.
18 Id. at 5.
19 Id. at 8.
20 See id. at 11–12.
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[Vol. 29:175
wan began asserting the Canadian claim, including one rather aggressive proposal to build a canal rerouting the river away from the United
States entirely. When, in 1969, the river poured down to ºood the capitol of North Dakota for forty straight days, the Americans were willing
to see Canada put in some dams of its own. They found their champion
in a border rancher who rode into the North Dakota legislature on the
issue of taming the Souris, Orlin “Bill” Hanson. Hanson was a friend
and neighbor of the future deputy premier of Saskatchewan, Eric
Berntson. Berntson represented residents along Moose Mountain
Creek, future site of the Alameda Dam. Delivering a dam to your home
district is The Prize. The politics were right for the deal.
The planners went to work. Confronted by the unhappy fact that
the anticipated beneªts to agriculture would not offset project costs,
they added a power plant, boat ramps and other bells and whistles.21
They also consulted with their U.S. counterparts, the U.S. Army Corps
of Engineers, who told them that a project of this size would take decade to complete, maybe two.22 The Canadians thought the ªgure
crazy; they could do it in three years.23 They were off by ªfteen.
Finally, in 1986, Premier Devine unveiled a plan for two dams,
the Rafferty and the Alameda.24 There was a glitch, however. The projects would have to pass Saskatchewan’s environmental review process,
and the early feedback was acerbic. The proposal contained no
beneªt-cost analysis, no description of mitigation measures, no operational plans, and quite a few unsubstantiated claims.25 Indeed, there
was no indication of where the Alameda dam would be built at all.
Rather hard to conduct an adequate review on that record. Responding to these criticisms, the Rafferty-Alameda team went into a hurryup offense, according to engineer Hood a “sixteen week blitz” to get
its environmental documents in order.26 They knew what they were
going to do. It was simply a matter of jumping through the hoops.
21 See generally id.
22 Hood, supra note 1, at 2. The U.S. Army Corps of Engineers’ reputation for project
construction is matched by its reputation for manipulating project purposes, and costs and
beneªts, in order to obtain the necessary approvals. See Michael Grunwald, A River in the
Red; Chanel Was Tamed for Barges That Never Came, Wash. Post, Jan. 9, 2000, at A-1. See generally Arthur E. Morgan, Dams and Other Disasters: A Century of the Army Corps
of Engineers in Civil Works (1971); Nat’l Wildlife Fed’n & Taxpayers for Common
Sense, Crossroads: Congress, the Corps of Engineers and the Future of America’s
Resources (2004).
23 Hood, supra note 1, at 2.
24 Id. at 38.
25 Id. at 41.
26 Id. at 47.
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O Canada!
181
B. A Case for the Sportsmen
Rafferty-Alameda Dam Could Reduce Bird Populations By 30,000,
Report Says.
—Headline, Toronto Star, 1991 27
The highest of the hoops was a rising environmental awareness
across Canada and a particularly active local sportsmen’s organization, the Saskatchewan Wildlife Federation. Sportsmen’s organizations go way back in U.S. history to the days of Teddy Roosevelt, when
they were instrumental in the elimination of market hunting.28
Alarmed by the devastation of waterfowl and wetlands during the
droughts of the 1930s, duck hunters promoted some of the ªrst conservation laws of the twentieth century, including the purchase and
protection of the wetlands these birds needed to breed, feed, and survive.29 In the 1940s and ’50s, watching new threats to their hard-won
resources from dams and canals, they lobbied through a law, noble in
purpose if short on results, that declared ªsh and wildlife conservation a co-equal purpose of water resources development.30 In the
1960s, hunting and ªshing organizations were the ªrst to protest,
then oppose, a new construction binge by the Corps of Engineers,
Bureau of Reclamation, and like-missioned agencies. They had their
own lobby in Washington D.C., the National Wildlife Federation,
which had looked at new-fangled environmentalism with some suspicion but was about to catch the wave.31 When, in the early 1970s, public interest law ªrms for environmental protection such as the National Resources Defense Council and the Environmental Defense
Fund appeared on the scene and started winning lawsuits (and head-
27 Toronto Star, July 5, 1991, at D10.
28 For background on sportsmen’s organizations, see William T. Hornaday, Our
Vanishing Wild Life: It’s Environment and Preservation 53–61 (1913); George Reiger, Hunting and Trapping in the New World, in Wildlife and America: Contributions to
an Understanding of American Wildlife and its Conservation 42, 44, 46–47, 52
(Howard P. Brokaw ed., 1978); Richard H. Stroud, Recreational Fishing, in Wildlife and
America, supra, at 53–84 and see generally Allen, supra note 8.
29 See, e.g., Pittman-Robertson Wildlife Restoration Act, 16 U.S.C. § 669 (West 2006);
Fish and Wildlife Coordination Act, 16 U.S.C. § 661–667 (West 2006); Migratory Bird
Hunting Stamp Act, 16 U.S.C. § 718 (West 2006); Dingell-Johnson Sport Fish Restoration
Act, 16 U.S.C. § 777 (West 2006). See generally Michael J. Bean & Melanie J. Rowland,
The Evolution of National Wildlife Law (3d ed. 1997).
30 See 16 U.S.C. § 661–667.
31 See generally Allen, supra note 8.
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lines), the National Wildlife Federation followed suit.32 Within a few
years it had a full docket, primarily against dams, channels, and other
water projects.33
Meanwhile, north of the border, the Canadian Wildlife Federation, a loose conglomerate of state hunting and ªshing groups with
barely the budget to hold an ofªce together, moseyed forward in no
particular hurry.34 Onto the scene walked Ken Brynaert, an entrepreneur with ideas to grow the organization to ªt the times. He had a
plan; all he needed was $150 thousand in startup money.35 “It
shouldn’t take a week,” he told the Canadian Federation’s board.36
“You’ve got a week” said its President, Orville Erickson.37 Orville was
also President of the Saskatchewan Wildlife Federation and a conservationist (the word “environmentalist” came very slowly to the sportsmen’s community) to the core. He and Brynaert would power the national group forward. And he would come to hate the RaffertyAlameda dams.38
In the short run, however, Brynaert had exactly seven days to
make his case for a new Canadian Wildlife Federation. He hopped the
next ºight south to Washington D.C. and met with the National Wildlife Federation’s chief executive, Tom Kimball. Kimball, formerly director of the ªsh and game departments in both Arizona and Colorado, had enormous credibility in the sportsman’s world. He was also
a devout Mormon with a ºair for the malaprop (he spoke of “expo32 Personal observation: The author served as General Counsel to the National Wildlife Federation during this time.
33 See generally Cape Henry Bird Club v. Laird, 484 F.2d 453 (4th Cir. 1973) (challenging the environmental impact statement on the Corps dam); Avoyelles Sportsmen’s
League v. Alexander, 473 F. Supp. 525 (D. La. 1979) (challenging a private defendants’
land-clearing operations under the Clean Water Act); S. La. Envtl. Council v. Sand, 629
F.2d 1005 (5th Cir. 1980) (challenging the environmental impact statement on the Corps
navigation project); Nat’l Wildlife Fed’n v. Gorsuch, 530 F. Supp. 1291 (D.D.C. 1982)
(challenging the EPA determination that water quality changes caused by dams were not
required to be regulated under the National Pollutant Discharge Elimination System established by § 402 of the Clean Water Act), rev’d 693 F.2d 156 (D.C. Cir. 1982); La. Wildlife
Fed’n, Inc. v. York, 761 F.2d 1044 (5th Cir. 1985) (dealing with the regulation of dredge
and ªll under the Clean Water Act); S.C. Dep’t of Wildlife & Marine Res. v. Marsh, 866
F.2d 97 (4th Cir. 1989) (challenging water quality impacts of Corps dam).
34 Telephone Interview with Ken Brynaert, former Executive Director, Canadian Wildlife Federation (May 20, 2005). The description that follows of the Canadian Wildlife Federation is taken from the interview.
35 Id.
36 Id.
37 Id.
38 Id.
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O Canada!
183
tential growth”) and a keen sense for the right thing to do. Kimball’s
Federation had members, money, and a good set of monthly magazines. He lent Brynaert the monies he needed to get started, put International Wildlife Magazine at his service for new Canadian members, and welcomed him to the family. Where Brynaert met the
Federation’s environmental lawyers and got the idea.
The Canadian Wildlife Federation case against Rafferty-Alameda
was right out of the environmentalist bad-moments-in-water-development playbook. In the ªrst place, it was ºooding out prime wildlife
habitat; nearly everything that swims, ºies, or walks on four legs in the
western plains is found in or on the banks of rivers like the Souris, the
Platte, and the San Pedro. In the second place, it was a rip-off, funneling more than $100 million in public monies to a handful of ºoodplain
farmers looking to make more money out of wet crops like sugar beets
that had no business on the western plains in the ªrst place. The rest of
the project purposes were window dressing. It would be a lot cheaper to
pay the farms at issue to set back from the river. Wetlands and waterfowl
up and down the continent had taken a huge beating to agriculture
over the last century, and now to the dam building boom. RaffertyAlameda could take 30,000 more. It was time to draw the line.
In 1987, at a joint meeting of the Canadian and National Wildlife
Federations in Quebec City, a resolution was passed to oppose the
dams.39 More aggressive, they passed a censure motion against the
Canadian Minister of the Environment for failing to assert federal jurisdiction over the projects. Brynaert then delivered the censure to
the Minister in person, at his hotel room in Quebec. More aggressive
still, he was going to litigate.
C. The Government Gets the Call
In the Canadian context, what the environmental assessment process applies to, particularly at the federal level, has been determined as much by how it evolved as anything else.
—George Hood, project manager 40
The governance of Canada is pretty much what Americans
thought they were creating 200 and some years ago, a partnership of
states and federal interests in which the federals were conªned to a
very small box, and the rest was left to state capitals. Of course, the
39 Id.; see also Hood, supra note 1, at 47.
40 Hood, supra note 1, at 59.
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United States began to depart from this model as early as 1787 when
it traded the Articles of Confederation for the Constitution and has
been departing ever since with new orbits of national authority to
meet at ªrst economic, then social, and now security needs. Canada,
meanwhile, has clung to the states-rights model, tested increasingly by
more global imperatives. One of the stiffest tests would be environmental policy.
There was another understanding as well: the judiciary. Courts at
all levels were to resolve disputes before them; they did not set policy,
nor did they gainsay the policies of elected ofªcials. The United States
broke this mold too, early on, when the Supreme Court in Marbury v.
Madison41 declared itself competent to declare policies enacted by the
legislature unconstitutional, and over the last century U.S. courts have
become players in racial integration, school prayer, abortion rights, and
other sensitive social issues. Canadian courts, as those of mainland
Europe and England, have viewed these events with alarm and resisted
all initiatives to join the fray. Environmental law would put this philosophy to another severe test.
The root problem was as follows: Neither the delegates to the
U.S. Constitutional Convention of 1787 nor the drafters of the Canadian Constitution Act of 1867 had the slightest notion of environmental problems nor concern to address them. No language even
close to the word “environment” appears in either document. Under
constitutions establishing governments of limited powers, then, authority to protect the environment would not seem to lie at the federal level at all. The United States would come to a different answer
slowly, over time, through an expansive interpretation of the federal
power to regulate interstate commerce,42 an interpretation under serious counter-attack today by those who would de-nationalize environmental law.43 Canada would take a different route.
As in the United States, the Canadian Constitution spells out national powers with precision, including a few related to the kind of
environmental issues that would be waiting 100 and some years down
41 See generally Marbury v. Madison, 5 U.S. 137 (1803).
42 For a description of Commerce Clause challenges to environmental law, see Robert
V. Percival, “Greening” the Constitution—Harmonizing Environmental and Constitutional Values,
32 Envtl. L. 809, 830–33 (2002) and see generally Christine A. Klein, The Environmental
Commerce Clause, 27 Harv. Envtl. L. Rev. 1 (2003).
43 See generally Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531
U.S. 159 (2001) (implying that regulation of intra-state wetlands is beyond federal constitutional authority); Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997)
(challenging federal protection of endangered species).
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the road. The most relevant of these national powers was the authority to legislate on navigation, ªsheries, and federal lands.44 At the
same time, the Constitution gave the provinces exclusive powers over,
among other things, public works, property, and the “development of
natural resources,” including the production of electrical energy.45
Dams come to mind. While the Canadian government had some
foundation for passing laws to protect the ªshery, and perhaps even to
prevent its contamination by pollution,46 it was on thin ice when it
came to enacting general environmental law. And the ªrst of the new
environmental laws to sweep the United States, Canada, and the rest
of the world were very general indeed: environmental impact review.
The lead vehicle was the U.S. National Environmental Policy Act of
1969 and its principal requirement, an environmental impact statement for major federal actions. Canada would inch toward the same
objective, very gingerly.
The federal government in Ottawa was small, underpowered, and
far away from nearly every activity in Canada that impacted the environment.47 Environmental protection in the 1970s had acquired some
cachet, but it had also acquired some strong opponents including, for
openers, a Who’s Who of U.S. and Canadian industry. On thin ice
44 Constitution Act, 1867, 30 & 31 Vict. Ch. 3 (U.K.), as reprinted in R.S.C., No. 5, pt. VI,
§ 92 (App. 1985) (describing Exclusive Powers of Provincial Legislatures). For further
information on federal environmental jurisdiction in Canada, see Marcia Valiante, “Welcomed Participants” or “Environmental Vigilantes”? The CEPA Environmental Protection Action and
the Role of Citizen Suits in Federal Environmental Law, 25 Dalhousie L.J. 81, 91–96 (2002) and
see generally John Borrows, Living Between Water and Rocks: First Nations, Environmental
Planning and Democracy, 47 U. Toronto L.J. 417 (1997), and Sven Deimann, Comment, R.
v. Hydro-Quebec: Federal Environmental Regulation as Criminal Law, 43 McGill L.J. 923
(1998).
45 Constitution Act, 1867, 30 & 31 Vict. Ch. 3 (U.K.), as reprinted in R.S.C., No. 5, pt. VI,
§ 92A (App. 1985) (stating that the legislature may exclusively make laws regarding nonRenewable Natural Resources). For further information on federal environmental jurisdiction in Canada, see generally Borrows, supra note 44; Deimann, supra note 44; Valiante,
supra note 44.
46 See generally The Queen v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401.
47 Yves Corriveau, Citizen Rights and Litigation in Environmental Law NGOs as Litigants:
Past Experiences and Litigation in Canada, in Environmental Rights: Law, Litigation &
Access to Justice 117, 117–18 (Sven Deimann & Bernard Dyssli eds., 1995), stating:
Canada is the second largest country in the world: from east to west, 5514
kilometers separate Cape Spear in Newfoundland from the Yukon-Alaska
border. It is therefore difªcult for the 86 people responsible for enforcing the
laws of Environment Canada and the personnel of the provincial Environment Ministries to maintain an adequate surveillance of all of the areas within
their jurisdictions.
•
Id.
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constitutionally and looked on with suspicion by provincial governments jealous to retain their own autonomy, Ottawa’s caution towards
imposing environmental impact requirements was heightened by its
perception of what was unfolding south of the border,48 where environmentalists had taken the same requirements to court to challenge
government programs with alarming success. The American lawsuits
led to delays and injunctions while new impact statements were written and their often-embarrassing contents were exposed to the press.
Among the casualties of this litigation were water resources development projects, on which elected politicians depended to please constituents and ªll campaign coffers. The very ªrst U.S. environmental
impact statement cases enjoined the Cross Florida Barge Canal,49 Gilham Dam,50 and the Cache River Bayou DeVieu,51 all big price-tag
projects of very doubtful merits.52 Message to Canada from the
United States: environmental impact review can be dangerous to your
political base, treat with caution.
And so Canada did.53 Tentatively, feeling its way, the federal government issued a cabinet directive in the early 1970s creating a federal
Environmental Assessment and Review Process, unfortunate acronym
“EARP,” run by a new Federal Environmental Review Ofªce, even more
48 Id. at 119.
49 See generally Envtl. Def. Fund, Inc. v. U.S. Army Corps of Eng’rs, 324 F. Supp. 878
(D.D.C. 1971).
50 See generally Envtl. Def. Fund v. Tenn. Valley Auth., 339 F. Supp. 806 (D. Tenn. 1972),
aff’d, 468 F.2d 1164 (6th Cir. 1972). These proceedings continued later. See generally Envtl.
Def. Fund v. Tenn. Valley Auth., 371 F. Supp. 1004 (D. Tenn. 1973), aff’d, 492 F.2d 466 (6th
Cir. 1974).
51 See generally Envtl. Def. Fund, Inc. v. Hoffman, 421 F. Supp. 1083 (D. Ark. 1976),
aff’d, 566 F.2d 1060 (8th Cir. 1977).
52 Indeed, NEPA disclosures lead to the eventual cancellation of both the Cross Florida
canal and the Cache River project. See supra notes 49, 51.
53 G. Bruce Doern, Getting It Green: Case Studies in Canadian Environmental
Regulation 12 (1990), stating:
Environment Canada’s inherent capacity was blunted from 1975 until the late
1980s by four dynamics. The ªrst was an inability to establish and carry out
rigorous compliance procedures. The second was a weakening through
budget cuts of an already overtaxed scientiªc and investigative capacity. The
third was the federal government’s insecurity in its relations to the provinces
and among its own departments. And ªnally, Environment Canada was itself
primarily a technical department, possessing only limited economic and even,
to some extent, legal literacy and analytical capacity. Directly or indirectly, all
of these elements were indicators of the low position that environmental policy and implementation occupied on the political and economic agenda.
•
Id.
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unfortunate acronym “FEARO.”54 The process, so written, went into
hiding.55 In 1979, propelled forward by an increasingly restive public,
the Parliament tried to move the ball forward, directing the federal
Minister of the Environment to coordinate federal impact reviews and
issue guidelines for doing them.56 On the campaign trail, the conservative party even promised to legislate an environmental review process
itself, only to lose its ardor upon winning the elections.57 Instead, ªve
years later, the Environment Ministry issued an administrative Guideline Order asking that the “initiating department” undertake a “self
assessment process” to “ensure that the environmental implications of
all proposals for which it is the decision making authority are fully considered.”58 This Order would set the rules of the game when RaffertyAlameda and its companion water projects came on stage.
The guideline process was simple.59 The federal agency constructing or licensing a project did a ªrst screen, with the assistance of
FEARO, to decide if it had environmental problems. If not, end of
story. If so, FEARO appointed an Environmental Assessment Panel of
experts with relevant knowledge and no conºict of interest.60 After its
own investigation and public consultation, the Panel reported its
ªndings and recommendations back to the construction agency and
the environment minister.61 Should these two authorities reach different conclusions, the matter went to the Cabinet itself.62 It was a
clean-looking drill and, for those familiar with NEPA and the U.S. experience with a process controlled far more exclusively by development agencies, one that promised fair results. If in fact it could be enforced. Which is where the Rafferty and Alameda cases came in.
54 See Environmental Assessment and Review Process Guidelines Order, SOR/84–467
(1984) (Can.), available at http://www.ceaa-acee.gc.ca/013/0002/earp_go_e.htm [hereinafter EARP Guidelines Order]; Roger Cotton & John S. Zimmer, Canadian Environmental
Law: An Overview, 18 Can.-U.S. L.J. 63, 75 (1992).
55 See Constance D. Hunt, NEPA’s Legacy Beyond the Federal Government, 20 Envtl. L.
789, 793 (1990).
56 See id; Cotton & Zimmer, supra note 54, at 75.
57 See generally EARP Guidelines Order, supra note 54.
58 Id. § 3.
59 See id.; Cotton & Zimmer, supra note 54, at 75–76. The description of the EARP
guideline process that follows is taken from these sources.
60 EARP Guidelines Order, supra note 54, §§ 20–22.
61 Id. § 31.
62 Can. Wildlife Fed’n Inc. v. Canada (Minister of the Env’t), 4 C.E.L.R. (N.S.) 201, 225
(1989) (T.D. Can.).
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D. In with a Bang: Rafferty-Alameda I
[T]here is an irony in these proceedings which could make a cynic
cackle with glee.
—Canadian Wildlife Federation v. Minister of the Environment 63
Rafferty-Alameda was the ªrst of the dam projects to court, and
the suits came in waves. The initial lawsuit was ªled by one Donald
Wilkinson, a rancher who sought to quash a set of public hearings on
the dams scheduled during peak ranching season.64 He pointed out
that he had only sixty days to prepare comments on a new impact
statement of 1805 pages (the Rafferty-Alameda team had indeed been
busy).65 Further, the public hearings seemed timed to minimize opposing voices and unwelcome news. When a member of the provincial
parliament confronted Premier Devine with complaints about the
schedule from the Stock Growers Association, he was told that “history will show what you know and don’t know about the stock growers
would ªll a large room, my boy.”66 My boy. It was the attitude, and it
would infect everything about the process from then on. When questioned about the reason for submitting two separate environmental
reviews for the dam projects and a third for the power station, although they were connected to each other at the hip, indeed each
justiªed the other, provincial Minister of the Environment Swan replied: “That’s the way they came to us; they’ll be dealt with in that
manner.”67 End of discussion. Answers like this from public ofªcials
tend to breed their own opposition.
After a short hearing, the Saskatchewan Court of Queen’s Bench
dismissed Wilkinson’s suit on technical grounds: since the environmental board holding the hearing would make no legally binding decisions, it didn’t matter if the proceedings were rigged.68 Further, the
ranchers could always submit their comments later. The ensuing public hearings on the Rafferty-Alameda impact statement were the short63 Can. Wildlife Fed’n Inc., 4 C.E.L.R. (N.S.) at 213, 225.
64 Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard) (22 Sept. 1987)
(Mr. Lyons) 4–7, available at http://www.legassembly.sk.ca/hansard/21L1S/87-09-22.pdf
[hereinafter 22 Sept. Proceedings]. See generally Wilkinson v. Rafferty-Alameda Bd. of Inquiry, [1987] 64 Sask. R. 170.
65 Wilkinson, 64 Sask. R. at 171.
66 22 Sept. Proceedings, supra note 64, at 5–6.
67 Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard) (3 July 1987)
(Mr. Shillington) 19–20, available at http://www.legassembly.sk.ca/hansard/21L1S/87-0703.pdf.
68 See Wilkinson, 64 Sask. R. at 172.
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est in history for an environmental review.69 But only the opening
shot had been ªred.
Next into the fray came a local coalition called the Association to
Stop Construction of the Rafferty Alameda Project, a.k.a. SCRAP.70 Following Minister Swan’s environmental clearance, SCRAP challenged
the adequacy of the underlying review under the Saskatchewan Environmental Assessment Act. The government responded with a familiar
litany of defenses, starting with the proposition that SCRAP had no
standing to bring the case.71 The court found SCRAP’s members, which
included several local landowners, sufªcient for standing72 and, further, that the complaint raised a “real and substantial controversy which
is appropriate for judicial determination,” the adequacy of the environmental review.73 So far so good. Then the court fainted. Dismissing
a claim for damages, it turned to the crux of the matter: an environmental review that allegedly failed to “deal fully with [the] impact to
the environment.”74 This claim fell to a bevy of defenses familiar to a
reader of, say, Charles Dickens and the inscrutable mysteries of the law.
By statute, the duty to conduct an adequate review fell to the Lieutenant Governor, not the Environment Minister (as if they were not the
same government) and, adding greater insult, even if SCRAP could
prove violations on the part of the Minister, they were not enforceable
because “the Minister answers to the Legislature alone.”75 At least insofar as compliance with environmental statutes was concerned, the Minister was above the law. If this opinion held, environmental law in Canada was on the rocks.
Enter the Canadian Wildlife Federation with a more potent
claim.76 It wasn’t just the Saskatchewan government that was violating
the law; it was the federal Ministry of Environment in Ottawa failing
to follow the EARP Guideline Order. The Ministry had conducted no
environmental review and, instead, cleared the project based on the
Saskatchewan process.77 Angered by the Ministry’s refusal to consider
69 See 22 Sept. Proceedings, supra note 64.
70 See generally Ass’n of Stop Constr. of Rafferty Alameda Project v. Saskatchewan,
[1988] 68 Sask. R. 52.
71 Id. ¶ 1.
72 Id. ¶¶ 7, 30.
73 Id. ¶¶ 38–39, 44.
74 Id. ¶¶ 71, 74.
75 Id. ¶¶ 75, 85.
76 See generally Can. Wildlife Fed’n Inc. v. Canada (Minister of the Env’t), [1989] 3 F.C.
309 (T.D. Can.).
77 Interview with Ken Brynaert, supra note 34.
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its several requests (even the famous, hotel-room-delivered motion to
censure brought no response), the Federation sought a court order
that the Ministry conduct its own review. The Federation’s complaint
alleged that the provincial assessment did not consider impacts beyond its borders, including U.S. impacts (of course, to have done so
would have admitted the federal nature of the impacts), nor did it
consider effects on (federal) ªsheries and, most importantly, migratory waterfowl that were protected by international treaties.78 Once
the federal Minister was seen to have jurisdiction, he would be compelled to convene the independent Environmental Review Panel, and
it would be a whole new ballgame.
The Rafferty-Alameda project, strongly supported by the provincial government, was a hot potato, however, and the Minister wanted
no part of it. He argued, ªrst, that the EARP guidelines were only
suggestions from the federal government, not law, and, further, that
the project had been fully reviewed by Saskatchewan.79 The guidelines
applied only if there was no “duplication resulting from the application of the process,” he noted, and federal review here would add just
such duplication.80 The federal trial court rejected both defenses. It
found that the EARP guidelines were “not a mere description of a policy or programme,” they were regulations and created rights that were
“enforceable by way of mandamus.”81 As for duplication, the RaffertyAlameda affected areas of central federal responsibility, migratory
birds for one; indeed, the federal Environment Ministry itself had
written Saskatchewan that there were “a number of important information gaps” concerning areas of federal concern.82 And so, on April
10, 1989, a day that, to the project proponents, will live in infamy, the
court enjoined construction of the Rafferty Dam, then only twenty
percent complete.83 Through this ruling, the ºedging and politically
weak Ministry of Environment had done with its guidelines what it
could never have done in the Parliament: it had passed a binding law.
A scant two months later, the appellate court upheld the ruling.84
According to Ken Brynaert, who was in attendance, the judges did not
78 See Can. Wildlife Fed’n Inc., 3 F.C. at 313–14.
79 Id. at 315.
80 Id.
81 Id. at 322.
82 Id. at 323.
83 Hood, supra note 1, at 70; see also Canada (Attorney Gen.) v. Saskatchewan Water
Corp., [1990] 88 Sask. R. 13, ¶ 23.
84 See generally Can. Wildlife Fed’n Inc. v. Canada (Minister of the Env’t), [1989] 2
W.W.R. 69 (F.C.A. Can.).
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even bother to retire to consider the government’s case; they whispered among themselves a little and then ruled: appeal denied.85 The
success of the lawsuit sent shockwaves across Canada. It was the ªrst
case enjoining a government project of any kind on environmental
grounds. It emboldened a broad band of citizen groups to think that
the government, too, would have to answer to the law, and that the
courts would back them up.86 On the day of the opinion, a member of
the provincial House of Commons from Saskatoon, Saskatchewan,
rose to say: “I was pleased to hear that the federal license has been
lifted by the courts, and this government has been shown for what it
is, that this government can’t be trusted when it comes to the environment in our province.”87
News of the Canadian Wildlife Federation verdicts hit the RaffertyAlameda team like the end of the known world. They had fully expected to win in court.88 Nobody understood the opaque EARP guidelines and this was, after all, their dam, not Ottawa’s. Eric Berntson
told a standing-room only crowd at Estevan that he was “madder than
hell” about getting stopped by people “no more interested in the environment than they are in ºying to the moon.”89 He was almost
drowned out, however, by the “background roar” from opposition
members.90 To him and his supporters, and to the very end, they were
on the side of the angels; the uproar was simply about a bumbling,
intrusive federal agency and politics-as-usual. And so, they would
ratchet up the politics on their side. They even made their own movie,
“Dreams in the Dust.”91 It featured a widow whose husband keeled
over from a heart attack when he learned of the project delays. Engineer Hood’s chapter on the ªght that followed is entitled “Getting
The Better of Them.”92
Given a mission it had by no means sought, the federal ministry
(now called Environment Canada) had to conduct an environmental
review. Scrambling and under pressure, in August 1989 the agency
completed an internal review, found no environmental problems, and
85 Interview with Ken Brynaert, supra note 34.
86 See, e.g., Hood, supra note 1, at 73.
87 Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard) (10 Apr. 1989)
(Mr. Atkinson) 22, available at http://www.legassembly.sk.ca/hansard/21L3S/89-04-10.pdf.
88 Hood, supra note 1, at 70 (describing the proponents’ reaction as an “unbelievable
blow”).
89 Id. at 71–72.
90 Id. at 72.
91 Id. at 158–59.
92 Id. at 81.
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approved a new license for Rafferty-Alameda.93 And without doubt
hoped that it could walk away. Instead, this time, it prompted two lawsuits, one by the Canadian Wildlife Federation against Rafferty94 and
the other by two farmers, the Tetzlaff brothers, against Alameda.95
The Tetzlaffs’ case had a special tug to it: Alameda Dam had originally
been proposed for the Souris River well upstream of its conºuence
with Moose Mountain Creek. That was in fact the location analyzed in
Saskatchewan’s environmental impact review. Now, the site had been
moved downstream, by more than ªfty miles, and on top of their
property which would lie forever under 120 feet of water.96 To the Rafferty-Alameda team, no worries; the Tetzlaffs would be paid for their
land.97 It was simply a matter of money.
Back in court, the issues in these cases were no longer whether Environment Canada had to conduct a review but, rather, whether the issues were serious enough to invoke the independent review panel and
the full EARP process. The trial court minced no words. The EARP
guidelines might be ambiguous, but there was no avoiding the major
impacts of the Rafferty Dam with promises of unproven and unspeciªed
mitigation.98 The government’s position that it was too late to apply the
guidelines—having itself refused to apply them earlier—“could make a
cynic cackle with glee.”99 Most stingingly, the court referred to the government’s arguments as attempts to “excuse lawbreaking”:100 “If there
be anyone who ought scrupulously to conform to the ofªcial duties
which the law casts upon him or her in the role of a high State ofªcial it
is a Minister of the Crown. That is just plainly obvious.”101
This language was more than a shot across the bow of the environmental bureaucracy. It was a shot through the hull. The court
quashed the licenses unless the Ministry convened an Independent
Review Panel for the Rafferty-Alameda dams.102
93 See id. at 77.
94 See Can. Wildlife Fed’n Inc., 4 C.E.L.R. (N.S.) at 201.
95 Id. at 202.
96 Id. at 210–11.
97 Hood, supra note 1, at 85.
98 Can. Wildlife Fed’n Inc., 4 C.E.L.R. (N.S.) at 218–20.
99 Id. at 225.
100 Id.
101 Id.
102 Id. at 226.
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E. Out with a Whimper: Rafferty-Alameda II
Really, the whole thing was just a charade.
—Rod MacDonald, Stop Construction of the Rafferty-Alameda
Project (SCRAP) 103
Environment Canada was back on the hot seat. Complicating the
matter, and with the political assistance of their neighbors across the
border, the Rafferty-Alameda team managed to insert into a pending
U.S.-Canada boundary waters agreement a $51 million subsidy from
the Americans for construction of the two dams, which were to be
completed “expeditiously” and to hold Canada liable for any breach
of the pact.104 Armed with this new argument and with its own lobbying clout against a federal environment ministry whose political base
consisted of the diffuse support of environmental groups who spent
most of their time criticizing the ministry for poor performance, the
dam boosters cut a very sweet deal.105 Environment Canada would go
ahead and appoint its Review Panel. But at the same time, land acquisition and construction of associated works for the projects could continue. Only work on the Rafferty dam within the Souris River itself
would be halted. Environment Canada would, further, compensate
Saskatchewan up to $10 million for project delays. Engineer Hood
and his colleagues uncorked the champagne.
The prospect of now conducting an independent environmental
review on a project released for construction, for which the government would itself be liable for any delays, to say nothing of the cost of
possible alterations or an ultimate decision not to proceed, was not
lost on anyone. To a spokesperson for SCRAP, now out of the legal
action but still into the political ªght, the process was a “farce.”106
Most journalists saw it the same way.107 Certainly the proponents saw it
that way. According to engineer Hood, as soon as the second license
was issued on Rafferty, work on the dam “rumbled on into the night,
103 Chris Wattie, Chief Justice Denies Injunction to Stop Rafferty-Alameda Dams, The Rec.
(Kitchener-Waterloo, Ont.), Nov. 16, 1990, at F11.
104 See Canada (Attorney Gen.) v. Sask. Water Corp., [1991] 1 W.W.R. 426, 435 (T.D.
Can.).
105 The Hood team’s elation with the deal is recounted at Hood, supra note 1, at 119.
The description of the agreement is taken from this account.
106 See Wattie, supra note 103.
107 See Dennis Bueckert, Court Rejects Bid to Stop Rafferty Dam, The Rec. (KitchenerWaterloo, Ont.), Dec. 21, 1990, at A8; David Suzuki, The Environmental Assessment Dilemma:
At Best, Process Can Only Reveal Areas of Ignorance but It’s Our Best Way to Raise Substantive
Questions, Toronto Star, Nov. 10, 1990, at D6.
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unabated, twenty-four hours a day, seven days a week until freezeup.”108 Locals came out in lawn chairs to watch the action. In the dam
building business, construction is nine/tenths of the law.
Environmental law itself, meanwhile, had reached its high water
mark on Rafferty-Alameda. From here on it went ebb. By Spring 1990
the Rafferty dam was two-thirds completed and construction had
reached the Souris River itself, forbidden ground under the agreement.109 Learning of it, the Review Panel threatened to quit on rather
obvious grounds: why bother to study a fait accompli? When the federal Environment Minister simply wrung his hands in despair, Saskatchewan Premier Devine seized the moment and went for the gold,
ordering construction to resume on “all aspects of the project.”110
The Panel resigned.111 Environmental review was moot.
But not the legal actions. Alleging a violation of the hard-fought
Saskatchewan-Environment Canada agreement, the Attorney General
of Canada had ªled his own suit to enjoin construction on RaffertyAlameda until the Panel ruled.112 The court, retreating to the mindset
expressed in the SCRAP opinion, ruled that such relief simply could
not be obtained against the Crown.113 Even if it could, the court added,
the agreement was a nullity because it had not been approved in the
correct manner.114 The court denied the injunction and then dismissed
the case entirely because once the project was substantially completed
(because there was no injunction) “there would no longer be any purpose in holding a trial.”115 Catch 22: The Crown was above the law; its
agreements on behalf of the public were not worth the signatures that
executed them; there was no need to restrain a project pending environmental review because, once the project was completed, there
would be nothing left to litigate no matter what the review disclosed.
The outcome of the Tetzlaffs’ case was even more bizarre. They
had sought the same ends, a review panel and a halt until the panel
had reported.116 But, the court held, reading the EARP guidelines with
108 Hood, supra note 1, at 82 (photo caption).
109 See Sask. Water Corp., 1 W.W.R at 438; Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard) (27 Apr. 1990) (Hon. Mr. McLeod) 10, available at http://www.legassembly.
sk.ca/hansard/21L4S/900427.pdf.
110 Sask. Water Corp., 1 W.W.R. at 439.
111 Id.
112 Id. at 440.
113 Id. at 441–42.
114 Id. at 447.
115 Id. at 444.
116 Can. Wildlife Fed’n Inc., 4 C.E.L.R. (N.S.) at 203.
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ªnely-honed legal minds, while the guidelines required a Review Panel,
there was no “requirement that any report be made and considered before any ministerial decisions are made.”117 Continuing in this vein, the
court held that any obligation not to proceed during the review “depends for ‘enforcement’ on the pressure of public opinion and the adverse publicity which will attach to a contrary course of action.”118 To
which conclusion one might ask: why, then, have courts of law?
In February 1991, almost as an afterthought, Environment Canada
went forward to appoint a review panel for the remaining Alameda
Dam.119 That August, however, with the dam thirty percent complete,
the Rafferty-Alameda team produced a consultant to say that an uncompleted dam could cause increased ºooding. The federal Environment Minister then announced that he would no longer seek to suspend construction while the review took place.120 Construction was not
just nine/tenths of the law. It became ten/tenths.
The aftershocks of Rafferty-Alameda reverberated across Canada.
On the one hand, it was a bad show all round. Everyone ended up
feeling betrayed: the Ministry, certainly the environmentalists, even
the construction team. The press hooted. Legal commentators were
unsparing. Even engineer Hood, rewarded with the completion of his
life’s work, would write a book in the role of victim, unfairly treated by
press, public, and federal government alike. Orville Ericksen went into
retirement and died quietly, folded over his tackle box on a ªshing
trip in the north woods with Ken Brynaert.
In the end, it was the Oldman verdicts that lived on. Like it or not,
and somewhat by the back door, Canada now had an environmental
review law that it had to deal with. And a judicial opinion that stated, if
there was anyone, further, who had to comply with the law’s requirements, it was “high State ofªcials” and “Ministers of the Crown.” But
would courts actually make that happen?
117 Can. Wildlife Fed’n Inc. v. Canada (Minister of the Env’t) [1991] 1 F.C. 641, 667.
118 Id. at 666.
119 Dennis Bueckert, Another Panel Will Review Rafferty Dam, The Rec. (Kitchener-Waterloo, Ont.), Feb. 6, 1991, at F8.
120 World News Digest, Facts on File, Rafferty Dam Construction Cleared, Aug. 29, 1991.
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II. The Second Front: Oldman Dam
The ªght over the Oldman River dam issue is one of the longest,
most bitter and occasionally bizarre episodes in the history of Alberta’s conservation movement.
—Ed Struzik, Edmonton Journal, 1992 121
There are always two embarrassments mentioned in the short
history of Canadian environmental law. One is Rafferty-Alameda; the
other is Oldman dam. Much of what happened will look familiar: a
ºedging federal environmental agency struggling to ªnd its bearings
against a province ready to battle and to call its bluff. Only here there
was a new dimension that would grow larger in the Great Whale project yet to come: Native Canadians, in this case the Blackfoot Indian
nation, had been occupying the Oldman watershed for up to 12,000
years.122 By the end of the saga one of them would be serving a year
sentence, and Oldman dam would be exhibit A before an international tribunal on free trade.
A. The River and Its People
That river was never put aside for economic beneªt, it was put
aside by the creator for every living thing.
—Edwin Yellow Horn, Peigan Nation 123
The Oldman is not a plains river. It rises from snowmelt in the
Rocky Mountains and comes tumbling down in chutes and pools with
a trout ªshery said to be the best in the country. The Blackfeet are
thought to have come into the region after crossing the Bering Sea
from Asia, but their story of Genesis begins with being placed here by
Naipi, the Old Man, who made the world and everything in it. At
which point, after instructing the people how to hunt and live, Naipi
121 Ed Struzik, Supreme Court Decision Caps 2 Decades of Acrimony over Dam, Edmonton
Journal, Jan. 24, 1992, available at http://www.nisto.com/cree/lubicon/1992/19920126.
html.
122 Jack Glenn, Once Upon an Oldman: Special Interest Politics and the Oldman River Dam 17 (1999). The author provides a description of the River and the history
of its human occupation that follows. Id. at 13–24; Univ. of Guelph, Guelph Water Management Group, Land Use and Settlement in the Oldman River Watershed, http://www.
uoguelph.ca/gwmg/wcp_home/Pages/O_he_lu.htm (last visited Apr. 18, 2006) [hereinafter Guelph, Land Use and Settlement].
123 Patrick Nagle, Alberta Town Looks Forward to Beneªts of Oldman Dam, The Rec.
(Kitchener-Waterloo, Ont.), May 23, 1992, at C12.
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is said to have retreated “to the high mountains in the headwaters of
the river that now bears his name”—the Oldman.
The Peigan tribe, the largest of the Blackfoot nation, were buffalo hunters and when European fur traders encountered them in the
early 1800s they controlled the plains from the Canadian Rockies east
into Saskatchewan and south into Montana. With the arrival of the
snows, the Peigan, like Naipi, withdrew to the Oldman valley where
they remained until spring. Their central wintering ground was at the
conºuence of Crow Lodge Creek and the Oldman River as it emerged
onto the plains, lined by cottonwood trees, a thin ribbon of green
against a ºat and treeless prairie. The river stages marked the seasons
for the Peigan; they timed their sweats and sacred ceremonies by its
rise and fall.124 To Milton Born With A Tooth, the Oldman was a “religious ecosystem.”125 To the oncoming whites, it was a “water resource.”
The ªrst white entrepreneurs into the area were American whiskey traders, up from Montana, forcing the Dominion government to
send in the Mounties and build the usual fort. Before long, white settlers were on their way in as well. One of the whiskey settlements was
called Fort Whoop-Up. The Peigan resisted what they saw as invasion.126 They did not trap furs or swap goods with the newcomers;
they lived on the buffalo and continued to do so until the ªrepower
of horses and riºes made the high plains a killing ground and the buffalo numbers plummeted.127 By the late 1870s the herds at last failed
to show up and the Peigan, dying of starvation, came to terms. In
1877 the Blackfoot nation surrendered all of their lands, including
the Oldman watershed, to the Crown in return for small, tribal reservations and the right to continue to trap, ªsh, and hunt throughout
the region. The Peigan chose a site on the Oldman, failed at farming,
succumbed to alcohol, smallpox, the plague, tuberculosis, and
inºuenza; by the early 1900s they were down to 250 souls. They stand
at perhaps 1500 today.128 Whatever tangible symbol remains of their
religion and culture lies in the upper reaches of the Oldman River as
it comes out of the mountains, less than a dozen miles upstream.
124 Glenn, supra note 122, at 207.
125See id. (quoting Milton Born With A Tooth).
126 Id. at 206–07.
127 Id.
128 See Univ. of Guelph, Guelph Water Management Group, Peigan (Pikuni) and Blood
(Kainaiwa) Nations, http://www.uoguelph.ca/gwmg/wcp_home/Pages/O_he_fn.htm
(last visited Apr. 18, 2006).
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The ªrst whites tried to farm dry soils with scarce rainfall until, in
1890, an enterprising Mormon by the name of Ora Card dug an irrigation canal from the river to his settlement.129 Joining forces with a British coal company and then the Canadian Paciªc Railway, the immigrants expanded their irrigation projects to make crops a little more
tenable and, from the Crown’s point of view, to put some Canadians in
the way of American boomers from the south bent on expanding their
“manifest destiny” and looking north.130 The Dominion Land Act made
irrigated lands available for one-ªfth the going market price (in the
United States, the Reclamation Act made them free for the taking),
and federal irrigation laws promised more diversion projects. In the
words of one historian, a “happy band of politicians, railway ofªcials,
land developers and government engineers” reached their prime before and after the First World War.131 Their assumption was that irrigation was proªtable and would pay its way. The dust bowl proved otherwise. The railroad went into deep deªcit, sold off its lands, and
scrambled to get out of the irrigation business. Water resources development in southern Alberta, round one, was not a big success.
Round two followed the Second World War, when returning soldiers and new waves of immigrants again looked to the western plains.
The federal government launched new water projects to assist them,
but soon learned, as it had thirty years earlier, that “irrigation in western Canada was a money-losing proposition.”132 As Ottawa maneuvered
to get out of the business, in stepped Alberta which was placing its bets
on the future through expanded agriculture, food processing, and
crops like sugar beets that required more water.133 While ninety percent
of Canadian farmers relied on natural precipitation for crops and
ranching, the western plains depended overwhelmingly on irrigation.134 For Alberta, that meant only two sources and one of them was
Oldman.
129 See Irrigation. . . History of Irrigation in Southern Alberta, http://www.uleth.ca/
vft/Oldman_River/Irrigation.html (last visited Apr. 18, 2006) [hereinafter Irrigation]; see
also Glenn, supra note 122, at 19–21; Guelph, Land Use and Settlement, supra note 122.
The description of irrigation ventures that follows is taken from these sources.
130 Glenn, supra note 122, at 20.
131 Id. at 21.
132 Id. at 22.
133 Irrigation, supra note 129; Glenn, supra note 122, at 22.
134 Irrigation, supra note 129; Glenn, supra note 122, at 22. See generally Friends of the
Oldman River Soc’y v. Canada (Minister of Transp.), [1992] 1 S.C.R. 3 (Can.) [hereinafter
Oldman River II].
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B. The Dam and Its People
Mercy on your soul! You have been assailed by the Southern Alberta water lobby.
—Owen G. Holmes, letter to the federal Minister of Environment, 1986 135
The ªrst serious proposals to dam the Oldman River date back to
the 1950s with a federal-provincial study, released ten years later, recommending a location at the conºuence of the Crows Nest, Castle,
and Oldman, the Three Rivers site.136 A decade of environmental reviews and public meetings followed, capped by the disappointing conclusion of the Alberta Environment Council that “an onstream dam
[was] not required at this time, nor in the foreseeable future.”137 If
one were to be built, however, a better location would be on the Peigan tribe reserve.138 The Peigan promptly put in a demand for compensation, and lots of it.139 Nobody seemed happy, and the project
appeared doomed.
Plans like this, however, do not go away. In 1984, taking advantage of a crippling summer drought, Alberta Premier Peter Lougheed
announced that his government would proceed with the dam at the
Three Rivers location.140 He anticipated, he said, “no environmental
concerns.”141 The environmental facts of life, however, are that dams
block ªsh runs, and irrigation return ºows are notoriously high in silt,
fertilizers, pesticides, and salts and metals leached from the soil.142 A
federal study, completed a few years later, found that there could be
signiªcant impacts indeed on water quality, ªsheries, and the Peigan
reservation downstream.143 The Edmonton Journal saw what was coming. It editorialized: “The Oldman Dam has the potential to be an . . .
environmental disaster.”144
As the proposals for the Oldman waxed, waned, and shifted locations, a ºedgling group of farmers and environmentalists started rais135 Letter from Owen G. Holmes to the Honorable Lucien Bouchard, Federal Minister
of Environment (Apr., 1986), reprinted in Glenn, supra note 122, at 130.
136 Glenn, supra note 122, at 26.
137 Id. at 33.
138 Id.
139 Id. at 39–40.
140 See Struzik, supra note121.
141 Id.
142 Univ. of Guelph, Guelph Water Mgmt. Group, The Oldman River Watershed,
http://www.uoguelph.ca/gwmg/wcp_home/Pages/O_home.htm (last visited Apr. 18, 2006).
143 Glenn, supra note 122, at 111.
144 Id. at 43 (citing to the Edmonton Journal).
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ing questions, then criticisms, and the battle lines slowly formed.145 Politically, however, it was no contest until they called on a national environmental network for help. Down from Calgary came Martha Kostuch, an expatriate from Minnesota, a veterinarian by trade and an
environmentalist by passion who was now living in a town called Rocky
Mountain House, six hours of hard driving away.146 The ªrst thing Martha did was organize the Friends of the Oldman River Society, acronym
FOR; “We wanted something with a positive ring,” she explains. As the
issues heated up and insults ºew, then nasty letters, then intimidating
phone calls—at one point Martha had the Mounties tap her phone to
monitor the threats she was receiving—there was an advantage to managing this campaign from Calgary. The pressure on local opponents
was also relentless. Alberta sought in court to discover the identities of
the Society’s local members, which could have put the livelihoods of
more than one, particularly those who worked for or with the provincial government, in jeopardy. These are small towns. Everyone knows
everyone. When the Society gave notice it intended to sue over Alberta’s approvals for the dam, the provincial Environment Minister Ken
Kowalski branded them “pot smoking social anarchists.” 147 He later
accused them of inciting violence.148 Pressed to explain, he apologized.149 More or less. And much later.
The Peigan tribe was torn.150 Desperately poor and in need of government aid, they were offered millions of dollars in mitigation for the
dam, which translated into schools, education, the improvement of
their lives. But the tribe was tied to the river, root and branch, every
aspect of its physical and spiritual culture. Which way did responsibility
lie? Deeply divided, the tribal council voted not to oppose. On the
other hand, a warrior group within the tribe, the Loneªghters, maintaining a warrior tradition of young braves that extended back beyond
memory, took a more aggressive stance.151 They would ªght the dam to
the end, indeed beyond the end. Their spokesman was Milton Born
With A Tooth. They would not join with Martha Kostuch’s Friends of
145 See id. at 50–55.
146 Telephone Interview with Martha Kostuch, Founder, Canadian Environmental
Network, May 30, 2005. The description of the early opposition that follows is taken from
this interview.
147 Glenn, supra note 122, at 51.
148 See Interview with Martha Kostuch, supra note 146.
149 See id.
150 Glenn, supra note 122, at 195–204.
151 Id. at 76–86.
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the Oldman, but they would pursue their own legal strategy.152 And
they would also raise hell. The stage was now set for a battle that would
test not only the warring parties but the Canadian government and its
authority to make environmental policy at all.
C. Oldman Goes to Court
Why should ordinary citizens ªnd it necessary to go to court to
force their own government to respect the law?
—Editorial, Lethbridge Herald, 1993 153
The legal actions orchestrated by Martha Kostuch and the Society
took two paths. The ªrst asserted federal jurisdiction over the project
under the EARP guidelines.154 In 1986, Alberta had requested a permit from the Ministry of Transport for work in a navigable water, the
same license that would trigger federal responsibility in RaffertyAlameda. Beginning in 1987, local environmentalists started petitioning both the Transport and Fisheries ministries to comply with the
guidelines.155 The Ministry of Fisheries replied that it had delegated
its responsibilities to the province; Transport replied that this was Alberta’s dam. Friends of the Oldman River then petitioned the Ministry of Environment to invoke the guidelines directly156 and was refused. The federals wanted no more to do with this one than they did
Rafferty-Alameda.
Meanwhile, the Society went to provincial court challenging Alberta Environment Minister Ken Kowalski’s “interim” approvals for the
dam for lack of public participation.157 Kowalski described the charges
as “absurd, nonsensical and to the point of being ridiculous.”158 In his
view—reminiscent of government ofªcials around the globe—he was
the public. In December 1987 the Chief Justice of the Queens Bench of
152 See id. at 237–46. The Peigan tribe brought several claims based on cultural and
treaty rights to the ºow of the Oldman River. While these claims may have provided leverage in negotiating compensation and other terms from the government, none were successful in court. Note that the term Peigan and Piikan are used interchangeably throughout the text.
153 Editorial, Lethbridge Herald, Jan., 1993, reprinted in Glenn, supra note 122, at
248.
154 See Glenn, supra note 122, at 61–63. See generally Friends of the Oldman River Soc’y v.
Canada (Minister of Transp.), [1990] 2 F.C. 18 (Fed. Ct. Can.) [hereinafter Oldman River I ].
155 Oldman River I, 2 F.C. at 18.
156 See id.
157 See id.; Glenn, supra note 122, at 54, 55.
158 See Struzik, supra note 121.
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Alberta ruled quite the contrary, that the provincial approvals had
“[denied] affected parties the opportunity to voice their concerns”, and
quashed the licenses.159 His decision was not well received. One local
mayor said the judge was “nuts” and “should be sued.”160 Alberta did
the next best thing and appealed the verdict.161 Then it allowed a $97
million construction contract before the appeal could be heard.162 Going one better, then it dropped its appeal and issued itself a new license.163 This response would set the pattern for all that followed.
The Oldman River Society was not without recourses of its own.
In August 1988, as the river was being diverted into side channels to
prepare the dam site, Martha Kostuch swore an afªdavit before a local
justice of the peace that the construction was violating the national
Fisheries Act, a federal criminal offense.164 In her view the case was
clear: the only court decision on the matter had ruled the approvals
unlawful.165 When the Alberta Attorney General asserted jurisdiction
over the case, however, Ottawa, with obvious relief, promptly transferred the case to the province.166 Where of course it expired.167 Alberta was not about to sue itself over Oldman Dam.
By spring 1989, despite harsh winter construction conditions, the
dam was 40% complete, building continued, and the legal actions had
not panned out on any front. Then, a miracle occurred. That March,
federal Judge Cullen, sitting in Saskatchewan, found the Ministry of
Transport bound by the EARP guidelines in Canadian Wildlife Federation I, Rafferty-Alameda dam.168 Within days, Friends of the Oldman
River was in federal court in Alberta, seeking application of this
precedent and federal environmental review for Oldman Dam. This
lawsuit became the main event.
159 See Glenn, supra note 122, at 159; Jim Morris, Oldman Dam Draws Controversy: Alberta
Project Hotly Debated for 34 Years, The Rec. (Kitchener-Waterloo, Ont.), Aug. 15, 1992, at
F10; Struzik, supra note 121. See generally Friends of the Oldman River Soc’y v. Canada
(Minister of Transp.), [1992] 1 S.C.R. 3 (Can.).
160 Glenn, supra note 122, at 56.
161 See Struzik, supra note 121.
162 Id.
163 Id.
164 Oldman River II, 1 S.C.R.at 3.
165 See Interview with Martha Kostuch, supra note 146.
166 See Oldman River II, 1 S.C.R. at 3; Struzik, supra note 121.
167 Martha would go on ªghting all the way to the Supreme Court to assert criminal jurisdiction impugning the Crown Attorney General for dereliction of duty, but to no avail.
Interview with Martha Kostuch, supra note 146. Enforcement of criminal laws is in all
countries viewed as highly discretionary. If the cops want to look the other way, they may.
168 See generally Can. Wildlife Fed’n, Inc. v. Canada (Minister of the Env’t), [1989] 2
W.W.R. 69 (Fed. Ct. Can.).
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It is sometimes hard to appreciate, and to understand, the intransigence of the players in environmental litigation. Most lawsuits are
about money. Very few environmental suits, however, are about
money, at least on the part of the people who bring them. What they
want is deeper and far less attainable: they want something they care
about left alone. They are not easy to deal with because a deal offering them half of the pot is still the death of a loved one. How does
one halve a river? And so when Alberta offered to sweeten the pot on
the ªsheries impacts of Oldman Dam by enhancing the ªsheries on
other rivers in the system,169 that meant little to local environmentalists and less to the Peigan tribe. True, you might be able to buy out a
desperately poor tribe for money and aid. But to environmentalists
whose roots in something like the Oldman River are equally spiritual,
if not overtly religious, these cases are like defending Eden from an
invader who is intent on ignoring their issues, funneling money to
friends, inventing bogus beneªts, and breaking the law. An invader
who doesn’t understand them at all.
For Alberta, the dynamics were different but no less vitally felt.
Projects like these were the future of the region. Who could farm the
plains without water? The projects were, further, planned by dulyelected ofªcials. What happens though is that, at some early point,
having planned them, the ofªcials adopt these projects like children
and quite soon the line between public good and private ego disappears. Not only is their project on the line, they are on the line, and so
begin the insults, the hyperbole, and the need to ram it through come
hell or high water. When Alberta attacked its critics as anarchists and
defended its dam in terms of “feeding a hungry world,”170 it probably
believed what it was saying. Deep down, though—and one does not
have to dig too far—Alberta was defending power. If the Friends of
the Oldman River won the EARP guidelines case and established federal environmental review of provincial projects, no end of sovereignty would be lost. To say nothing of lucrative contracts and political clout. To Alberta, Oldman Dam was civil war.
The ªrst EARP case did not go well for the environmental plaintiffs. The trial court was on a hot seat and not inclined to follow the
Rafferty-Alameda decision. Ruling in August 1989, he found a way
out, holding that while Rafferty-Alameda involved an international
commission and international impacts, Oldman was purely local so
169 Glenn, supra note 122, at 53–54.
170 Id. at 44.
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the Ministry of Transport’s license did not invoke EARP review.171
Martha Kostuch was devastated,172 but giving up is no more part of
the DNA for a person like Kostuch than it is for government planners.
She plunged immediately into an appeal, while Alberta rolled its bulldozers and deepened the diversion canals for the dam. The appeal
would cost money. Friends of the Oldman held a fundraiser, a “celebration” of Oldman with Canadian folk music immortals like Gordon
Lightfoot and Ian and Sylvia and turned out another Woodstock, with
thousands of people in the ªelds, national press coverage, money in
the appeal fund.173 But they had yet to win in court.
Five months later they did. In March 1990, an appellate court
ruled, as in Rafferty-Alameda, that the federal Transport license required environmental review and ordered both Transport and Fisheries to comply.174 The appellate decision “sent panic through the ranks
of dam supporters,” and it did not stop there.175 The federal Minister
of Environment wrung his hands, lamenting openly that for years everyone had thought its guidelines were unenforceable.176 Apparently,
the good old days had ended.
With obvious reluctance, the Minister convened an Environmental Review Panel for Oldman Dam.177 Alberta, meanwhile, did the
smart thing. It appealed the decision to the Supreme Court and proceeded post haste towards completing the dam. The Environment
Ministry—unsure of whether it had the authority to enjoin the construction, unsure of whether, even if it did have the authority, Alberta
would obey( just look at what had happened with Rafferty)—did nothing at all.178 Which would simply replay the Saskatchewan scenario,
but for the legal challenges made to the Supreme Court and their
outcome. Alberta’s claim went deep: the national government had no
constitutional authority to require environmental impact review.
171 See generally Friends of the Oldman River Soc’y v. Canada (Minster of Transp.),
[1990] 1 F.C. 248 (Fed. Ct. Can.), rev’d by Oldman River I, 2 F.C. 18.
172 Glenn, supra note 122, at 65.
173 Id. at 66.
174 See Oldman River I, 2 F.C. at 18.
175 Glenn, supra note 122, at 69.
176 Id.
177 Id. at 72.
178 Id.
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D. The Peigan Make Their Move
I’m going to continue what I’m doing slowly to mentally and
physically dismantle this dam.
—Milton Born With A Tooth 179
Meanwhile, as Alberta hurried its bulldozers and dallied on its appeal, the Peigan Loneªghters were about to take matters into their own
hands.180 Seeing no relief from the court actions and the dam going up
before their eyes, on August 3, 1990, they announced a “ground breaking ceremony,”181 rented a bulldozer from a local construction company and began a cut into the government’s diversion canal to return
the Oldman River to its natural channel. At a press conference in
nearby Head-Smashed-In-Buffalo-Jump, Milton Born With A Tooth explained that the Loneªghters were acting to protect the Peigan way of
life. “No more courts for me, no more panels for me. It’s time passion is
brought back to this country” said Born With A Tooth.182 The
Loneªghters also believed, apparently on advice from tribal counsel,
that their actions on tribal land were perfectly lawful. What followed
was a comic-tragedy of mistrust and botched communication.
Milton Born With A Tooth did not act alone. He had signiªcant
support from the Peigan tribe, which in turn was acting in the swirl of
First Nation rights marches, sit-ins, occupations, and violence that
culminated in the summer of 1990, Canada’s “summer of discontent.”183 The Peigan list of grievances against Alberta and the federal
government went back 100 years. They viewed the treaties they executed as “shams,” signed by white Indian agents whose corruption was
legendary. “Heck,” one current tribal leader says, “we didn’t know
how to read and we didn’t know how to write; we were still riding
around on horses and shooting Winchesters.” In the early 1920s,
without so much as a by-your-leave from the tribe, Alberta had cut an
irrigation canal across the reservation. The Peigan still consider it il-
179 Id. at 94.
180 Id. at 76–93. The description of the Loneªghter action that follows is taken from
this source.
181 Glenn, supra note 122, at 77.
182 William Walker, Ottawa Refuses to Shut Down Oldman Dam, Toronto Star, May 22,
1992, at A15.
183 Telephone Interview with Edwin Small Legs, Tribal Council Member, Blackfoot
Confederacy, June 3, 2005. The descriptions of Milton Born With A Tooth and Edwin
Small Legs that follow are taken from this source.
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legal. By the late 1960s, as Oldman Dam was percolating along, their
suspicions and sense of injury were already high.
The Peigan opposition to the Oldman dam had been led in the
1970s by Nelson Small Legs, a tribal chief for more than a decade. Nelson’s son Edwin grew up with Milton Born With A Tooth, two more going-nowhere kids, as he describes it, cut loose in the poverty and hopelessness of the reservation. In 1978 the two teenagers learned of the
American Indian Movement south of the border, studied up on it, and
fell in. “It changed our lives,” says Edwin. They joined the Native
American Walk Across America that summer and it opened their eyes
to the problems they faced and their possibilities. Edwin Small Legs
recalls: “We met an old lady on the march who told us, ‘We’re already
sick here. Just you wait. You’re going to catch cold too.’”
Now, a decade later, Alberta was building its dam, thumbing its
nose at the environmental lawsuits and the Peigan’s own cases were going nowhere as well. What the Loneªghters did next was planned civil
disobedience. They sat down, recalls Edwin Small Legs, and “decided
that somebody had to go to jail.” Nobody was paying any attention to
their protests or even to court decisions. Milton Born With A Tooth
spoke up. “I’ll do it,” he said. “I’ll go to jail.” And so, on a hot day in
August, he rented the bulldozer, went to work, and called in the press.
There is a photo of Milton, his sister, and an unnamed Loneªghter on
a dike at the construction site.184 Milton is long haired, broad faced,
and naked from the waist up. He is wearing an amulet around his neck,
and he is smiling.
Events ran their inevitable course. The Loneªghter bulldozer
sank into the mud and became inoperable for days. Somehow they
got a forklift, hauled it out, and soon both machines were digging
dirt. Alberta went into negotiations with the Tribal President and
agreed not to invade the reservation. But the Loneªghters, marching
to their own drum, went on pecking away at diverting the canal.
Then, on September 7, and without any further communication with
the President or Tribal Council, Alberta ofªcials entered the reservation supported by Royal Mounties, in camouºage and heavily armed.
They impounded the bulldozer, and, helicopters circling overhead,
moved into the Loneªghter camp. No one got hurt. But two shots
were ªred. The government forces halted and eventually pulled back.
The man who ªred the shots was Milton Born With A Tooth.
184 Glenn, supra note 122, at 91.
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E. The Supreme Court Rules
Alberta argues that the Guidelines Order attempts to regulate the
environmental effects of matters largely within the control of the
province and, consequently, cannot constitutionally be a concern
of Parliament. In particular, it is said Parliament is incompetent to
deal with the environmental effects of provincial works such as the
Oldman River Dam.
—Supreme Court of Canada, Friends of the Oldman River Society v.
Canada185
Meanwhile, back in Ottawa, the Ministry of Environment’s inaction on Oldman Dam was becoming embarrassing. Once Alberta appealed the decision against its project, an assistant to the federal Environment Minister announced that the Environmental Review Panel was
“on ice” until the appeal was resolved.186 Friends of the Oldman petitioned a federal court to order the Minister to move. Under the protective cover of the order, a less-than-eager Ministry ªnally convened its
panel, which went to work on its own assessment, conducted its own
hearing, and prepared its report. Alberta, unwilling to compromise its
legal position, refused to participate in the review process but mounted
a “truth squad”187 to monitor the proceedings and had its views well
represented. At a hearing in Lethbridge one supporter stated that the
dam planners were “educated engineers” and “shouldn’t be questioned.”188 Truth be told, in their heart of hearts, most engineers would
agree. Meanwhile, construction continued on the dam. When asked
whether Alberta could actually operate the dam without federal approval, the provincial Environment Minister observed, “Of course we
can . . . we’re doing it now.”189
In another building in Ottawa, the Supreme Court was slowly
grinding its way through the briefs and arguments of Alberta and no
fewer than ªve sister provinces who saw very clearly that their turf was
on the line. Weighing in for the environmentalists was Brian Crane, a
senior attorney from Ottawa who had succeeded before these same
judges in Canadian Wildlife Federation not so very long before. Finally,
in February 1992, the court ruled. One can usually tell how a case will
185 Oldman River II, 1 S.C.R. at 63.
186 Glenn, supra note 122, at 103. The description of the panel’s actions that follow is
taken from this source.
187 Id. at 109.
188 Id. at 106.
189 Id. at 113.
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turn out with the ªrst few sentences of any opinion. In this case, the
Supreme Court of Canada began: “The protection of the environment has become one of the major challenges of our time.”190 Attorney Crane must have been feeling pretty good at this point.
The opinion moved through the statutory issues like so much
underbrush. Yes, the EARP guidelines order had been authorized by a
statute.191 And no, it did not conºict with the authorities of Transport
and Fisheries.192 And no, although the dam was largely completed, it
was not too late for mitigating measures or to declare the law before
them.193 Then it arrived at the main event: in a government of limited
powers with natural resources development authority explicitly reserved to the provinces, was a federal environmental review process,
even one created by federal statute, constitutional?
To Alberta and her sisters the guidelines order was a “constitutional Trojan horse” enabling Ottawa, “on the pretext of some narrow
ground of federal jurisdiction,” to intrude deeply into matters that were
“exclusively” the provinces’ domain.194 The issue was cosmic, because if
the provinces were correct, then national environmental review for all
but federal lands and ªsheries would be history. Not very good history
for Friends of the Oldman River, or for the Canadian Wildlife Federation for that matter, which had already seen what provincial reviews
produced. Federal environmental authority in the Canadian constitutional framework was, and remains, one of the hottest questions in Canadian environmental law, and everyone had an opinion.195 Some simply denied it: “environmental protection” was not a federal power.196
Others taking a “conceptual” or “global” view found federal environmental authority in such “general” constitutional provisions as criminal
law, taxation, or trade.197 The Oldman court did neither. Instead it took
a middle course, but one with a very wide middle that would accommodate major national primacy in environmental law.
The middle course was to look at the “basic functions” of the federal sectoral agencies in this case,198 Transport and Fisheries. Did the
190 Oldman River II, 1 S.C.R. at 16.
191 Id. at 6.
192 Id. at 7.
193 Id. at 80.
194 Jean Leclair, The Supreme Court of Canada’s Understanding of Federalism: Efªciency at the
Expense of Diversity, 28 Queen’s L.J. 411, 424–30 (2003).
195 Oldman River II, 1 S.C.R. at 62–63.
196 Id. at 64.
197 Id. at 65–72.
198 Id. at 37, 44.
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EARP guidelines impose a new legal order on these constitutionallycreated ministries or simply stretch their powers to include environmental considerations? Faced with the disagreeable alternative of invalidating an environmental process the court plainly believed would
beneªt the licensing decisions of Transport and Fisheries (citing a
United Nations report to the effect that development and environmental protection were compatible),199 the court found that the
guidelines’ “intrusion into provincial matters” was only “incidental” to
the “pith and substance” of the federal programs.200 Environmental
review was simply an instrument that helped focus the way these
agencies did business, and one that, the court stressed, only bound
them to a process and not to a particular result.201 If, in the end, the
Ministry of Transport or Fisheries chose to ignore an Environmental
Review Panel, it could do so. Of course, while technically correct, any
lawyer knows that process determines outcomes and that environmental process could be used very effectively to change private and
government plans. The effect of the opinion, though, was to legitimize Canadian federal environmental law, at least within the bounds
of established federal jurisdiction. The provinces would have to get
used to a new national order. As would the Minister of Environment,
now saddled with more responsibility than he ever wanted.
F. Requiem
There is no way the dam will ever be shut down.
—Ken Kowalski, Alberta Minister of Public Works, 1992 202
In May 1992, the Oldman Dam Environment Review Panel issued
its report.203 It was strong medicine. The adverse effects of the dam
would be severe, particularly on ªsheries, archeological sites, and the
Peigan culture. The provincial environmental review had been so
sketchy that conclusions on other environmental effects were not pos199 Id. at 37 (quoting Can. Council of Res. & Env’t Ministers, Report of the National Task Force on Environment and Economy, Sept. 24, 1987 which states “Our
recommendations reºect the principles that we hold in common with the World Commission on Environment and Development (WCED). These include the fundamental belief
that environmental and economic planning cannot proceed in separate spheres. Longterm economic growth depends on a healthy environment.”).
200 Id. at 75.
201 Glenn, supra note 122, at 111.
202 Id. at 111–13. The description of the report that follows is taken from this source.
203 Id. at 111.
210
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sible to draw. The project had created great divisiveness, uprooted the
lives of displaced farmers, and its claimed need for increased irrigation acreage had not been shown. Overall, the project was “not acceptable.”204 The ªrst and best option was to “decommission” it.205
Shades of the Alberta Environment Council report on RaffertyAlameda, ªfteen years earlier. And equally unavailing. Oldman Dam
at this point was 80% complete. Always quick with a quote, Alberta
Minister of Public Works Ken Kowalski (he had been promoted from
the provincial Environment Ministry; following the Supreme Court
ruling he had even called for the abolition of the Environment Ministry) labeled the Review Panel report “technically adolescent.”206 The
dam would be completed, he said, no matter what the Review Panel
did. He was correct.
Here, now, was the federal government, the Review Panel report
in hand calling for a decommissioning of Oldman Dam, the dam all
but completed and staring it in the face, and Alberta saying you’ll decommission Oldman over our dead body. Predictably, perhaps inevitably under the circumstances, the federal Ministry blinked, asking
only that the province mitigate impacts on the Peigan and the
ªsheries.207 The Peigan negotiations would go on for years. The
ªsheries were another matter. Canadian biologists had predicted that
the dam would present an insurmountable obstacle to the prize species of the region, the bull trout.208 Three years after the gates closed,
a magazine reported that Alberta’s remaining bull trout “teetered on
the brink of extinction.”209 Alberta reacted promptly. In May 1995 its
legislature proclaimed the bull trout one of the province’s “ofªcial
emblems.”210 Problem solved.
Milton Born With A Tooth was convicted on several counts of
ªrearms violations.211 He said he was ªring warning shots, in the air,
aiming to miss. The government insisted he shot at the Mounties. He
soon became a First Nation celebrity. The Grand Chief of the Assembly
of Manitoba Chiefs declared his people “supportive of the principals
204 Id. at 112.
205 Id. at 113.
206 Id.
207 Glenn, supra note 122, at 128.
208 Id. at 129.
209 Id.
210 Id. The account of the trial that follows is taken from this source.
211 Press Release, Mother Earth Def. Fund, More Injustices Over Oldman Dam—Federal
Inquiry Sought ( Jan. 8, 1995) available at http://www.nanews.org/archive/1995/nanews03.
004.
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behind Milton’s actions to defend his territory and Mother Earth.”212
He continued: “The longer those in positions of power continue to
prioritize economic interests over environmental impacts, the closer we
move toward global destruction.”213 Born With a Tooth’s trial judge was
not impressed. Quite the opposite, he conducted the trial with such
overt hostility to the defense as to prompt an outcry from the press
and, eventually, a reprimand.214 And so Born With a Tooth, too, went
up on appeal, to have his conviction reversed and remanded for a new
trial, which was scrupulously fair, but he had ªred the shots, and that
was all it took to meet the allegations. He was sentenced to sixteen
months in jail, served twelve, and moved away. He had once said, “I’m
going to do it my way...if the valves [in the dam] are not open in the
next few days or weeks, they’d better kill me before I get home because
I’m willing to die for this.”215 He tried, he wasn’t killed, but he lost.
Come to think of it, in a sense he was killed too.
The Peigan came out a little better. In 2001 they changed their
name, rejecting the English version and reverting to their own pronunciation, Piikan.216 Two years later they struck a settlement of their
claims against Alberta and the government of Canada for $64 million
in cash and an ongoing study on the future impacts of the dam on the
environment and the Piikan culture. They were training ªfteen of
their own tribe as environmental scientists, archeologists, and sociologists for the study.217 They were concerned for the long term. They
secured a re-opener of the cash settlement depending on the study
results. The dam was a fait accompli. The environment lost. But they
would win something important. Edwin Small Legs says, “I can tell you
this. If it hadn’t been for Milton and what he did, we would not have
that $64 million today.”218
The Province of Alberta had an answer to the bad press created
by the Environment Review Panel report. It planned a large public
ceremony to inaugurate Oldman Dam.219 Exercising his talent with
words once again, Alberta Minister Kowalski christened the event “A
212 Id.
213 Glenn, supra note 122, at 129. Among other things, the judge denied Born With A
Tooth bail four times while awaiting trial, detainment that the Alberta Civil Liberties Association said “deªes belief.” See Press Release, Mother Earth Def. Fund, supra note 211.
214Walker, supra note 182.
215 Glenn, supra note 122, at 114.
216 Interview with Edwin Small Legs, supra note 183.
217 Id.
218 Id.
219 Glenn, supra note 122, at 114.
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Festival of Life: A Celebration of Water.” In addition to the usual formalities, presided over by the provincial Premier, the four-day program included “wild water rides, a children’s carnival, a canoe and
kayak whitewater competition . . . a 500-seat dinner for dignitaries, a
concert by Canada’s top country band . . . and a church service.”220
Martha Kostuch, no slouch for a phrase, had her own name for it: a
“festival of death, the death of three rivers.”221 She called up the
scheduled country band and asked, “Do you know what it is you are
celebrating?”222 The band cancelled. The Peigans refused to participate as well, not just the Loneªghters but the whole tribe. Kowalski
accused Kostuch of inciting violence. Milton Born With A Tooth did
not help matters by calling a radio show to declare his willingness to
lay down his life to stop the dam.
Minister Kowalski ªnally called off the ceremony, alleging a
criminal conspiracy. The Calgary Herald advised him to “put up or shut
up.”223 He did neither. Instead, in lieu of his public celebration, at
dawn on July 23, 1992 a squadron of sixteen ºag-bearing horsemen
galloped to the top of the dam where they were duly photographed
and memorialized. “[A] respectful afªrmation,” said the Alberta Report, “of their support for water management in Southern Alberta and
their contempt for the threats of violence that have prevented a public celebration.”224 Observed the Calgary Herald, it was “more like a
public relations attempt at damage control.”225 Years later Martha Kostuch said that she thought it might be better to leave the dam stand-
220 Id.
221 Id. at 115; see Interview with Martha Kostuch, supra note 146.
222 Interview with Martha Kostuch, supra note 146; see Glenn, supra note 122, at 115.
223 Glenn, supra note 122, at 116.
224 Id.
225 See Morris, supra note 159. Martha Kostuch soldiered on citing Canada’s failing environmental politics to the Environmental Committee of the North American Free Trade
Agreement, with Oldman Dam as Exhibit A. Press Release, Friends of the Oldman River,
Further Delay in Release of Commission for Environmental Cooperation’s Factual Record
on Canada’s Non-Compliance with Environmental Laws ( June 24, 2003) (explaining Ms.
Kostuch’s position with respect to the dam issue). At the same time, Friends of the Oldman River was submitting a detailed ªve-year critique to the Canadian Environmental Assessment Agency of its performance under the new Environmental Assessment Act. Martha
Kostuch, CEAA 5 Year Review (2003), available at http:/www.ceaa.gc.ca/013/001/0002/
0004/0001/kostuch_f.htm. The organization and reputation of the Society gained during
the Oldman Dam ªght were being put to new environmental ends.
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ing after all, as a “monument to government stupidity.”226 It would
make a bigger tourist attraction that way, she added.227
And so it ended at Oldman dam. Bitter to the last. Canadian environmental law was constitutional, but it had failed to catch the train.
III. Worlds Collide: The Great Whale
Quebec is a vast hydro-electric plant in the bud, and every day, millions of potential kilowatt hours ºow downhill and out to sea. What
a waste.
—Robert Bourassa, Premier, Quebec Province 228
In April 1971, the government of Quebec announced plans to
build one of the most massive construction works in the world in one of
the most untouched regions of the world, a vast complex of lakes, rivers, tundra, and forests east of Hudson Bay called the Canadian Shield.
Designed in three phases, phase one would drain six entire rivers into
the La Grande River, doubling its ºow and funneling it towards an underground powerhouse more than twice the size of the Notre Dame
Cathedral.229 Four powerline corridors would cut through hundreds of
miles of the forest to Montreal and, of considerable importance as
things turned out, to New York and New England as well.230 The La
Grande project required a thousand kilometers of access roads, four
main dams and 130 kilometers of dikes and reservoirs ºooding 8700
square kilometers, 5% of the land surface of the province and a much
higher percentage of its lakes and wetlands.231 By comparison, RaffertyAlameda and Oldman dams were mere pretenders.
La Grande was just the start. All three phases, when completed,
would consume twenty wild rivers and cover an area equal to the size
226 See Morris, supra note159.
227 Id.; see Jamie Linton, The Geese Have Lost Their Way, Nature Canada, Spring 1991, at
27, 28.
228 Linton, supra note 227, at 28.
229 Id. at 28–29.
230 See generally Sam Howe Verhovek, Power Struggle, N. Y. Times, Jan. 12, 1992, § 6, at
SM16 (stating that the electricity generated in the Canadian North races down the transmission lines that stretch like forests of steal across the tiaga, into New York state and ultimately that crosses a grid that reaches into every home, apartment, factory and ofªce in
the state).
231 Harvey A. Feit, Hunting and the Quest for Power: The James Bay Cree and Whitemen in the
20th Century: Part II: The Cree Struggle to Maintain Autonomy in the Face of Government Intervention, (2004) available at http://arcticcircle.uconn.edu/CulturalViability/Cree/Feit1/feit2.
html.
214
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of France.232 Even more spectacular was Quebec’s further dream of
damming off James Bay entirely with a 100 mile dike and sending its
waters to the western plains, as far away as California.233 The Province
stood to make a fortune. Better yet, none of these impacts would be
felt by Quebecois. The project was sited on the territory of the Cree
Indian Nation. Only nobody bothered to tell the Cree.234
The struggle that followed pitted two passionate antagonists, each
with its history of grievance and a struggle for self-determination. For
the next twenty years, the Canadian government was largely a bystander, a position it would ofªcially describe as alert neutrality.235 In
one corner of the ring stood Quebec, whose separate language, culture, and politics fed a near-constant quest for greater autonomy, if not
outright independence.236 Vive la Quebec Libre!, said at least in jest, at
times seriously, and often as a bargaining chip, has never been far from
the surface in Quebec City and Montreal. Few better ways than a hydroelectric power bonanza to provide an economic base for these and
more modest ambitions. And lest one forget, emerging from a history
of English dominance and alert for further insults, Quebecois were the
least prepared Canadians then or now to take directions from Ottawa.
These were Quebec’s projects. They would be built and guarded by its
alter ego, the James Bay Development Corporation.
In the opposite corner of the ring stood the largest and most
functionally-independent First Nation left on the North American
continent this side of Mexico.237 Northern Quebec east of James and
Hudson bays has been inhabited by the Cree since the glaciers retreated some 5000 years ago.238 Subgroups of Cree pushed south into
the swamps that line the American border and then west to the plains,
232 Verhovek, supra note 230.
233 Id.
234 Harvey A. Feit, Hunting and the Quest for Power: The James Bay Cree and Whiteman Development, in Native Peoples: The Canadian Experience 101, 112–13(R. Bruce Morrison
& C. Roderick Wilson eds., 2004) [hereinafter Hunting and the Quest for Power I ].
235 See Boyce Richardson, Strangers Devour the Land: the Cree Hunters of the
James Bay Area Versus Premier Bourassa and the James Bay Development Corporation 22 (1975).
236 The information that follows regarding the Cree Indian Nation is taken from
Richardson, supra note 235, at 20, 22, 27, 327–29; see also Hunting and the Quest for Power I,
supra note 234, at 113–14 (providing background information for the discussion of the La
Grande River project that follows).
237 Catholic Encyclopedia (2005), available at http://www.newadvent.org/cathen/
04477a.htm; see Hunting and the Quest for Power I, supra note 234, at 101.
238 See, e.g., Encyclopedia of North American Indians, available at http://college.
hmco.com/history/readerscomp/naind/html/na_009000_cree.htm (last visited Apr. 18.
2006) (noting that the Cree story has its origins around James Bay in prehistoric times).
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displacing the Blackfoot and other tribes.239 They were entrepreneurial with other tribes and then with Europeans. They trapped and
traded freely and, according to the explorer Mackenzie, one of the
ªrst Europeans to know them, they were sharp negotiators but “naturally generous, good-tempered, and honest.”240 Catholic missionaries
a century later reported them “high in morality.”241 Depleted elsewhere by white settlements and disease, the James Bay Cree remained
almost entirely on their own in the north woods, with its cold winters
and summer rains and legendary biting insects, intact and self
sufªcient, a hunting culture with a sophisticated ethic towards the
place they lived. The James Bay projects would challenge the Cree
ethic and independence, face on.
A. Planning by Surprise: La Grande
When the dams are built where will the animals go? The caribou
won’t know which way to go.
—Samson Nahacappa, hunter, Cree Nation 242
There were in fact three lawsuits, each one brought by the Cree
against the James Bay projects. They ªled the ªrst one in 1971,243 immediately upon learning the Quebec government’s plans for the La
Grande and its watershed, two-ªfths of the Cree territory. The Cree
complaint was deceptively simple. These were their lands; Quebec
couldn’t just come and take them. They ended up in a provincial court
before provincial Judge Albert Malouf, whose middle-eastern background perhaps found more resonance with the plaintiffs than with the
many corporate and government attorneys.244 An Indian law expert by
the name of James O’Reilly represented the Cree, and in ªre and eloquence he was Irish to the bone.245 Lead attorney for Quebec was
Jacques LeBel, who by coincidence was the brother-in-law of Quebec
Premier Robert Bourassa, author and champion of the James Bay
239 See id.; Catholic Encyclopedia, supra note 237.
240 Catholic Encyclopedia, supra note 237.
241 Id.
242 Richardson, supra note 235, at 179. This magniªcent book, written by a Montreal
newspaper reporter who left his job to follow the Cree and the LaGrande project, presents
a full account of the ªrst Cree lawsuit against the James Bay development.
243 See generally Kanatewat v. James Bay Dev. Corp., [1974] R.P. 38 (Can.) [hereinafter
Kanatewat I ] (note that this case has been incorrectly titled in the reporter as Le Chef Max
“One-Onti” Gros-Louis c. Société de développement de la Baie James).
244 Richardson, supra note 235, at 30.
245 Id. at 24.
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plan.246 It was an environmental case, but under a different name and a
different set of rules. The root issue was whose lands these were and
what the project was going to do to them. To the government it was no
contest, and they treated it that way: Canadian lands belonged to the
provinces and the impacts of the project would be beneªcial to everyone, including the Cree.
The Cree case was an inextricable mix of history, religion and
ethics, all centered on the hunting way and its relation to the lands,
waters, and animals on which it depended. Today, we would use the
phrase “the environment” but, as the trial would reveal, no such word
began to convey the meaning of this relationship to the Cree. Frank
Speck, an early ethnographer, called Cree hunting a “religious occupation.”247 A later researcher, Harvey Feit, set out in a doctoral thesis
to study one Cree hunting community on the shores of James Bay.248
He was suspicious, he later wrote, of popular images of these Indians
as either “ecological saints” or as “wanton over-exploiters.”249 What he
found was a complexity in the order of Catholic or Talmudic doctrine.
Hunting was the organizing principle of Cree life, and the word
itself had at least ªve separate meanings ranging from observing to lying in wait, from taking game and fetching, to growing and continuing
to grow.250 Every element in nature had its spirit, and the closest to
humans were animals, who had their own ethics and who, at appropriate times, gave themselves up to humans to be killed. Successful hunters, Feit observed, demonstrated “competence because they maintain
that delicate balance with the world in which animals die and are reborn in health and in continuing growth.” Over-harvested animal
populations became “angry” and denied the hunter. These were not
just words. For centuries Cree wardens had supervised individual hunting territories of more than a hundred square miles, monitoring the
game, advising the hunters, limiting the take, and reinforcing the ethic.
All the things that environmentalists would come to say about the interconnectedness of life and its spiritual dimension, the Cree lived. But
not, perhaps, for very long. There never would be another collection of
witnesses like these. Brought in from the high woods, the Cree hunters
246 Id. at 34.
247 Harvey A. Feit, Hunting and the Quest for Power: The James Bay Cree and Whitemen in the
20th Century: Part I: The Contemporary Cree Hunting Culture (2004), available at
http://arcticcircle.uconn.edu/CulturalViability/Cree/Feit1/feit1.html.
248 Hunting and the Quest for Power I, supra note 234, at 101.
249 Id.
250 See id. at 102. The description of the Cree hunting ethic is taken from this source.
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O Canada!
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and their families gave their testimonies and then wandered the streets
of the city, marveling at the trafªc, the height of the buildings, and the
volume of trash.251
To the whites, of course, all of this was incomprehensible. The
more so because the Cree witnesses spoke in several dialects and the
proceedings were conducted through translators into both English and
French.252 If one wanted to listen at all. One witness writes that it was a
“dialogue of the deaf” for the provincial and corporate lawyers, “who
began the case without really thinking it was necessary” and only woke
up to the fact that the judge was paying attention as the proceedings
wore on.253 Judge Malouf was respectful to the native witnesses, asking
one, whose answers had been cut short in cross-examination, if he had
ªnished his answer. “It’s ok,” said Billy Diamond, a Cree chief.254 “It’s
not ok,” the judge said, “If you have not ªnished it you will be given the
opportunity to ªnish it. That’s why we’re here.”255 After a few days of
testimony, he rejected the government’s motions to dismiss. There were
real issues here, he said.256
There were two real issues, one of law and one of fact. The legal
case was of ªrst impression and rather breathtaking: were these really
Cree’s lands? To the Cree, of course, the very idea of ownership was
counter-cultural. “It is quite ridiculous,” said Cree hunter Ronnie Jolly,
“this idea of the white man that a person can own all of the earth, and
everything under it, and everything that moves on it.”257 As was the
idea of money, particularly money in compensation for the loss of land.
William Rat testiªed,
When you talk about money I do not really know the value of
it. I do not use it very often . . . . It is the white man who has
the money, and on the other hand, the Indian has the land.
The white man will always have the money, and will always
want to have the land.258
Losing the land would be “like losing my life,” he said.259 He meant,
of course, much more than land; he meant a relationship to the land
251 Richardson, supra note 235, at 28.
252 Id. at 23.
253 Id. at 23, 27.
254 Id. at 41.
255 Id. at 42.
256 Id. at 30.
257 Richardson, supra note 235, at 104–05 (photo caption between pages).
258 Id. at 246.
259 Id. See also the testimony of Job Bearskin:
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as strange to the government attorneys who were examining him as a
relationship with Mars.
O’Reilly’s legal argument was that the Cree and other tribes had
always been protected by the English Crown, and that the settlers
were instructed as explicitly as in instructions from King George III to
the Canadian Governor in 1763 “not to disturb them in the Possession
of such Parts of the said province as they at present occupy or possess.”260 From then on, all acts of government from the Crown and
Quebec, including extension of the Province north to James Bay, were
done in recognition of “the rights of the Indian inhabitants,” subject
only to later, negotiated treaties.261 Which in this case had not taken
place. All of which, to O’Reilly, meant that the Cree had land rights.
These rights had been abrogated by the sudden, massive, and unannounced James Bay plans.
The government’s primary defense, besides their conviction that
the Cree claims were unthinkable, was that the Cree had abandoned
their described lifestyle some time ago. And if they hadn’t, it was high
time they should. Wasn’t it a fact that the Cree used outboard motors
now?, asked the government attorneys. Yes, a Cree answered, but we
also go upriver by canoe.262 Don’t the Cree use ski-dos and snowmobiles? Yes, a Cree answered, but when people leave for their traplines
they still go by dogsled and wear snowshoes.263 What were the Cree
witnesses eating in Montreal . . . white man’s food, no? Answer: “I
have come to the stage that I can hardly eat this food.”264 Cree hunter
John Kawapit continued, “When I go back home to Great Whale River
I’ll be able to eat better, because I will be eating the food that I have
been eating in the past.”265 But were they telling the truth? One fortytwo-year-old Cree hunter had been called in by his Chief to testify
about the effects of a James Bay access road across his trapline. In the
courtroom he was asked to put his hand on the bible and swear to tell
It can never be that there will be enough money to help pay for what I get
from trapping. I do not think in terms of money. I think more often of the
land because the land is something you will have for a long time. That is why
we call our traplines, our land, a garden.
Id. at 121.
260 Id. at 26.
261 Id.
262 Richardson, supra note 235, at 35.
263 Id.
264 Id. at 42.
265 Id.
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the truth. A long dialogue with the translator ensued. “He does not
know whether he can tell the truth,” the translator told the judge. “He
can tell only what he knows.”266
The government’s main witness was an anthropologist who said
that the Cree culture described was on the verge of collapse.267 He
gave it seven years, maximum. And, for the Cree’s own good, the
sooner that they adapted to the white man’s ways the better. To be
sure, “bringing up 16,000 whites” into the middle of the Cree society,
for conjunction of a project of this size, “the shock [was] going to be
brutal.”268 But it was perhaps “the only way to make a culture react,”
and then “really begin to participate” and “take its development in
hand.”269 The Cree’s anthropological witness, the above-mentioned
Harvey Feit, held a different view.270 Feit, who had lived with the Cree
for several years, described a struggling but still self-sustaining culture.
In fact he saw considerable potential for adding more Crees to the
subsistence hunting culture. If these people were to adapt successfully
to the white man’s life, he said, it would have to be incrementally and
over time. A sudden shock would destroy them.
The shock came instead from Judge Malouf. Capturing seventyeight days of testimony from 167 witnesses, and after several months
of deliberation, his 170 page opinion found as a matter of law that
England and then Canada had always treated the Indians as sovereigns of their land and undertook to possess their lands by treaties or
other negotiations, not by simple appropriation.271 While Native conceptions of property ownership differed from that of the whites, they
had their own rules and legally protected rights. On the facts, he credited the Cree witnesses and several supporting scientists, who testiªed
to severe disruption of the culture and livelihoods by even the access
roads and preliminary construction works. In a detailed (seventy
page) summary of the evidence, he documented the “dependence of
the indigenous population on the animals, ªsh and vegetation in the
territory,” on which the works would have “devastating and far reaching effects.”272 Seeing the law, facts, and equities so plain, he found
266 Id. at 46.
267 Id.
268 Richardson, supra note 235, at 247–48.
269 Id. at 248.
270 Id. at 249. The description of Feit’s testimony that follows is taken from this source.
271 Id. at 20, 296–97.
272 Id. at 298–99. See generally Kanatewat I, R.P. 38.
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that the loss of the Cree way of life “far outweigh[ed]” the monetary
losses to the corporations. He enjoined the project.273
Quebec’s response was disbelief, then deªance. With the eager
assistance of an inºamed media, it presented itself as the victim of a
robbery with catastrophic losses of income, jobs, and a secure future.274
It accelerated project construction. (Have we seen this before?) The
weekend following the stop order, with work proceeding apace, it imposed a news embargo on the area; pilots who ºew reporters in to see
what was going on would lose their licenses.275 The James Bay Corporation rushed to ªle its appeal and to stay Judge Malhouf’s injunction.276 Within days the appellate court heard the stay motion. They
had questions only for attorney O’Reilly, none for the government,
and the tenor was not friendly. (Opening question: “Well, Maitre
O’Reilly, what have you got to say?”).277 Within ªve hours the stay was
lifted. A Cree appeal to the Supreme Court died.278 The construction
continued to roll. Quebec, Saskatchewan, and Alberta were all reading out of the same playbook: construction beats law. Then fate took a
hand.
Throughout the winter and in extreme cold, construction stalled
at the primary dam site.279 Two rival unions had a falling out. After a
series of minor ºare-ups, a group of workers seized some bulldozers
and other heavy equipment and rammed it into the power plant.
Then they set it on ªre. The company was forced to ºy the entire crew
out, 1400 men. The work stopped for months. Asked by a reporter for
his reaction to these events, a local Cree said, “If you don’t quote me,
I’ll tell you; it sure as hell beats an injunction.”
The respite was short-lived. By the next summer the appeals court
was ready to hear the James Bay Corporation’s case and rule. It was
aided by two compendious briefs, in four volumes, two from each
side.280 The one that they evidently read more closely was from James
Bay. In this brief, and in the court’s opinion which was in large part indistinguishable from it, the Canadian Shield was not the homeland of
Cree Nation but, rather, the Quebec frontier already settled by whites
273 Richardson, supra note 235, at 29. See generally Kanatewat I, R.P. 38.
274 See generally Kanatewat I, R.P. 38.
275 Richardson, supra note 235, at 299.
276 Id. at 300.
277 Id.
278 Id. at 301.
279 Id. at 301–02. The description of the disturbance that follows is taken from this
source.
280 Id. at 311.
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and in need of their improvement.281 The Cree life described by Judge
Malhouf was ancient history. Justice Turgeon, writing the main opinion
for the court, agreed with the corporation on “the lack of importance
of country food in the diet of the Indians,” who ate “as do people inhabiting the urban centres.”282 He found that “a considerable number
of [Cree] occupy interesting jobs” and did not “give themselves over to
hunting and ªshing except [for] recreation.”283 The James Bay project
would provide a “salutary shock” to these people and “help in the
elaboration of the necessary policies of transformation.”284 The Justice
chided the trial court for failing to “see in the proof all that these
conºicts could bring of a positive nature.”285 Positive to the environment, as well. Far from drowning out ªsh and wildlife, the dams and
reservoirs would actually increase wildlife populations and spare them
the hazards of uncontrolled nature and ºooding.286 As for native rights
to the land and its resources, they simply did not exist and never had,
not since the King’s ªrst charter to the Hudson Bay Company.287 Judgment reversed.
The Cree’s ªrst lawsuit failed in court, but its attendant publicity
succeed in prompting the government to negotiate terms for the now
inevitable La Grande phase of the James Bay development.288 With the
construction in full swing and no leverage from the law, the Cree were
under enormous pressure to take whatever they could get.289 Chief
Billy Diamond later explained, “we saw the need to limit the damages,
seek remedial works and have certain fundamental rights recognized
. . . . We really had no other choice.”290 The government added pressures of its own. Again, Chief Diamond: “not only did the negotiators
come in with [surrender of land claims] as a condition which was not
subject to discussion or debate, but Canada made it clear that if we did
not proceed with the agreement process, unilateral legislation would
281 Richardson, supra note 235, at 312.
282 Id. at 313; see generally Kanatewat v. James Bay Dev. Corp., [1973] 41 D.L.R. (3d) 1.
283 Richardson, supra note 235, at 313.
284 Id. at 314.
285 Id.
286 Id. at 315–16.
287 Id. at 316.
288See generally Harvey A. Feit, Hunting and the Quest for Power: The James Bay Cree and
Whitemen in the 20th Century: Part III: Cree Autonomy and the Aboriginal Rights Agreement
(2004), available at http://arcticcircle.uconn.edu/CulturalViability/Cree/Feit1/feit3.html
[hereinafter Hunting and the Quest for Power III ].
289 Richardson, supra note 235, at 319.
290 UNI, Sovereign Injustice: Relevance of the James Bay and Northern Quebec
Agreement, http://www.uni.ca/library/si_sect08.html (last visited Apr. 18, 2006).
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have been imposed on us in any case.”291 Nor were the pressures limited to future threats. In November 1993, the Grand Council of the
Cree explained, “the position of our people was desperate, and programs upon which we depended were being cut and frozen, including
while negotiations were underway.” Against this backdrop, it is remarkable that the Cree walked away with anything at all.292
What they walked away with was the James Bay Northern Quebec
Agreement, ratiªed by the Cree Nation (described as “very reluctant”)
and the Canadian Parliament. The agreement extinguished native land
claims in return for the creation of small, Cree-owned reserves and a
$225 million payout.293 The Cree maintained hunting rights and, under state supervision, their own regulatory scheme.294 The La Grande
project would go forward, but the location of its major power plant
would be moved one rapid upstream, saving a historic Cree rendezvous
of central cultural and religious importance.295 No other project
modiªcations were obtained. No river would be spared.
And so, the project described by Quebec Premier Bourassa as a
“conquest” of the Canadian North296 went forward. Twenty years later
a brochure of Hydro Quebec, the $34 billion utility charged with realizing this conquest, urged the reader to “Follow the Energy Road!,”
where “You will experience the inªnite landscapes and brilliant skies
where thousands of Quebec workers built the La Grande complex.”297
Thousands of Quebec workers but very few Cree.298 As of 1991 only
ªve residents of the town of La Grande worked for Hydro-Quebec.299
Half the town was unemployed, and the entire population suffered
from “alarming rates of alcohol abuse, teenage pregnancy, divorce,
and suicide.”300 The hydro dams had also converted harmless forms
291 Id.
292 Id.
293 Alex Roslin, Cree Denounce Quebec, Assert ‘Control’ of Lands; Withdraw from Treaty to Protest Judge’s Replacement, Montreal Gazette (Mar. 10, 2000), available at http://www.nben.
ca/environews/media/mediaarchives/00/cree.htm; see also Hunting and the Quest for Power
I, supra note 234, at 114–19 (describing the Cree’s negotiation and implementation of an
autonomy agreement).
294 Hunting and the Quest for Power I, supra note 234, at 115.
295 Hunting and the Quest for Power III, supra note 288.
296 See Sean McCutcheon, Electric Rivers: The Story of the James Bay Project
34 (1991).
297 Linton, supra note 227, at 28.
298 A subsequent Parliamentary inquiry revealed massive corruption in the La Grande
complex construction, and near-total exclusion of the Cree, in violation of the James Bay
Agreement. Richardson, supra note 235, at 321.
299 Id.
300 Linton, supra note 227, at 30.
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of mercury, leached from the trees and soils, into to methyl mercury,
toxic to ªsh and humans.301 By 1984, a study of the Cree community
of Chisasibi, downstream from the La Grande complex, found 64% of
the residents carried methyl mercury levels above the toxic threshold.302 Hydro-Quebec responded by telling the Cree to eat less ªsh.303
Asked about the positive impacts of the project on the community,
Sappa Fleming, the former Mayor of the Inuit population in Great
Whale, said, “Well, my children can choose from six different kinds of
potato chips at the Northern [grocery store] . . . I suppose that is a
kind of progress.”304
The same brand of progress came to the wildlife of the region.
When the massive sluices and diversions opened in the 1980s, 10,000
caribou drowned making the crossing in the modiªed and unfamiliar
waters.305 Migration patterns throughout the region were scrambled.
One old-timer said, “The geese have lost their way.”306
The ªrst Cree lawsuit against the James Bay development had two
other impacts not lost on the Cree or anyone else. The ªrst was to
politicize a loose grouping of tribes and family groups into a centralized Cree Council with allies in politics, international assemblies, and
the rising environmental community. The second was to underline
the need for legal leverage and to ªnd it beyond Indian claims in the
emerging ªeld of environmental law. The cases to come would be
based on the same claims raised in the Rafferty-Alameda and Oldman
dam cases. Once again, Canada would claim no responsibility for the
projects. Indeed, it would claim no responsibility under the James Bay
Northern Quebec Agreement either. These claims would be put to
the test as Quebec now moved to phase two of the James Bay development, Great Whale.
301 Verhovek, supra note 230.
302 Id.
303 Id.
304 Id.
305 Linton, supra note 227, at 30.
306 Id.
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B. Great Whale I
[T]he central question about the Great Whale Basin is this: Should
large parts of it be underwater?
—Sam Howe Verhovek, The New York Times
The Great Whale is a special river even by Canadian standards, an
entire country of special rivers. It inspires poetry out of hard-nosed
journalists and scientists alike. One reporter writes,
As the Great Whale river rises east out of Hudson Bay in
northeastern Canada, its broad sandy shores quickly give way
to a carpet of light-green lichen studded with granite outcroppings. Beyond the banks lies a vast expanse of black spruce
and tamarack, great coniferous forests, broken here and there
by lakes and bogs and kettle ponds.307
It is a landscape that teems with life in fall and spring, he continues,
“when enormous herds of caribous stomp across the earth and millions of migratory birds tarry in the estuaries of James and Hudson
Bays, some stopping to double their weight as they feast on eelgrass
and coastal shrimp before ºying as far south as Tierra del Fuego.”308
It is also one of the least studied landscapes in North America, one of
the farthest from urban centers and universities, but this much is
known: “With its many rapids and falls, and its canyons and cliffs, it is
a spectacularly beautiful river.”309
With one extra twist. The conºuence of the Little Whale River
and James Bay is a gathering ground for Beluga Whales—“small, strikingly white creatures” against blue water that return every summer.310
They do not come to calve or feed but to rub off their old skins on
the shallow rocks and “frolic” in the surf. Hence the name. Only the
Beluga no longer come to the mouth of the Great Whale. They were
wiped out of this migration years earlier by the Hudson Bay Company.
But several hundred Beluga come to the mouth of the Little Whale
River, which would be eliminated by the James Bay development project, phase two.
307 Verhovek, supra note 230.
308 Id.
309 McCutcheon, supra note 296, at 140.
310 Id. at 165. The description of the beluga whales that follows is taken from this
source.
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The Great Whale project began for the Cree exactly as the La
Grande had. Without notice.311 But not by surprise, because back from
political exile to lead the province of Quebec once again was Robert
Bourassa. His passion for the project had not changed. Nor had his attitude towards the Cree. As he explained to the press, “conquerors are
not courteous.”312 A Cree summary of the battle that followed notes
that, “in 25 years of dealing with us, he never once, not even to the day
he died, visited a Cree village.”313 Nor had the project changed its posture towards the environment. One historian writes: “That the James
Bay rivers should be turned to electricity to feed the world’s hungriest
and greediest energy markets and that James Bay itself should become
the continent’s water tank” was, in Quebec’s view, “rational and inevitable.”314 A consultant for the project company explained, “In my view,
nature is awful, and what we do is cure it.”315
The Cree were not going to take this one lying down any more
than they had the last. “We would like to avoid violence,”316 said Bill
Namagoose. “It gets you a lot of publicity, but you can’t eat publicity.
We don’t want to lose our land.”317 They elected a new Grand Chief,
Matthew Coon-Come, a young, slim, and passionate man with a ºair
for oratory and a mandate to stop the hydroelectric development.318
Quebec professed surprise, arguing that the Cree had, in the James
Bay Agreement, accepted that “these known projects and any additions or substantial modiªcations to Le Complex La Grande” shall be
considered as “subject to the environmental regime only in respect to
ecological impacts” and that “sociological factors or impacts” would
not be grounds for the Cree to “oppose or prevent the said developments.”319 To which the Cree replied that this surrender of claims applied only to La Grande, phase one, and not the phases to come.320
And further, even if otherwise, the entire Agreement was void for the
above-mentioned duress, throw in fraud, misrepresentation, and non311 Id. at 42.
312 Id.
313 Grand Council of the Crees (of Quebec), Cree Legal Struggle Against Great Whale Project (2000), http://www.waseskun.net/cree.htm.
314 See McCutcheon, supra note 296, at 148, quoting Camille Dagenais, former head
of SNC, an engineering contractor for Groupe Lavalin, which constructed the La Grande
complex. Id. at 145.
315 Id. at 148.
316 William Walker, Who Controls the Environment?, Toronto Star, July 14, 1991, at B4.
317 Id.
318 McCutcheon, supra note 296, at 152.
319 Id. at 154.
320 Id. at 155.
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fulªllment by Canada of its part of the bargain.321 Whatever the merits of these positions, they put all the more weight on the forthcoming
environmental review.
Familiarly, by now, Quebec was determined to keep whatever environmental review was necessary at home and ªrmly under its thumb.
Hydro-Quebec’s ªrst move was to split the project in two parts—(1) the
main power projects and (2) the access and logistical support (roads,
airports, construction camps)—and then offer an assessment of part
one only, thereby avoiding consideration of the whole.322 Both Quebec
and federal authorities approved.323 Once the Hydro-Quebec assessment was made, under the Quebec process members of environmental
review committees did not get to ask their own questions for the company to answer.324 One observer commented, “They were like people
judging a job candidate on the basis of her answers to her own questions.”325 Better yet for Hydro-Quebec, questions of the need for the
project, its purposes, alternatives, and basic design were not on the table either.326 Only those measures to attenuate project impacts were
germane.327 The cheapest of which was paying money. The company
had paid the Cree upwards of $100 million to expand their project at
La Grande.328 Then, they said, even for the Cree it’s all about money.
The Cree replied that there was no reason not to take it: Hydro-Quebec
had destroyed the La Grande river by that point anyway.329
To both sides, though, the main chance was the new $12.6 billion
project on the Great Whale River and its tributaries, the most northern of the three phases of the James Bay project, involving hundreds
of kilometers of new roads and power lines, three new power stations,
ªve new reservoirs, and ºooding 4400 more square kilometers of
lands and waters.330 Faithful to the game plan that had proven so successful in Rafferty-Alameda and Oldman, Hydro-Quebec let bids for
the clearing of the main access road.331 The question was whether
321 Id. See generally Alison Gale & Michelle Marcellus, James Bay II: Power Over Land,
Economy, People, Between the Issues, Mar. 1991.
322 McCutcheon, supra note 296, at 181.
323 Id.
324 Id. at 183.
325 Id.
326 Id.
327 Id.
328 McCutcheon, supra note 296, at 155.
329 Id. (stating that it was already a ruined river).
330 Id.
331 Grand Council of the Crees (of Quebec), supra note 313, at 1.
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(the desires of Quebec and Hydro-Quebec notwithstanding) any of
this would receive federal environmental review. And if so, so what?
The ªrst answer to the ªrst question was: yes. Canadian Minister of
Environment Lucien Bouchard, a Quebecois as well but one who had
been scorched by his ineffectual responses in the previous dam cases,
admitted federal jurisdiction.332 In October 1989, he wrote to his provincial counterpart that, given the “considerable magnitude of this project,” it was “extremely important” that the assessment be conducted “as
objectively and independently as possible,” and offered a “cooperative
approach.”333 Nothing, of course, was further from Quebec’s mind. In
the best tradition of the provinces, it did not even reply. One month
later Bouchard tried again, this time to the newly-appointed provincial
environmental minister.334 Nothing back. Meanwhile, Federal Administrator of the James Bay Development, Ray Robinson, wrote the HydroQuebec vice president for environmental affairs and reiterated that the
project was subject to federal environmental review as speciªed by the
provisions of the James Bay Agreement.335 As the court later notes,
“[a]n extensive period of silence then prevails.”336 One full year later,
Robinson wrote to the president of the evaluation committee responsible for monitoring the James Bay development, again outlining the
federal responsibilities that necessitated federal environmental review.337 He again wrote Hydro-Quebec to the same effect as well.338 At
which point he appears to have undergone Miraculous Conversion.
That same month, November 1990, Federal Administrator Robinson suddenly informed a Cree audience that he had no mandate for
federal environmental review.339 One might forgive the Cree for feeling, once again, betrayed. They ªled suit. Back went James O’Reilly to
court on their behalf.340 And ran into another Judge Malhouf.
332 Id.
333 Cree Reg’l Auth. v. Canada (Fed. Admin.), [1992] 1 F.C. 440, 447 (T.D. Can.)
[hereinafter Cree Reg’l Auth. I ]. The description of the Communicators to Quebec and
Hydro-Quebec are taken from this source.
334 Id.
335 Id.
336 Id.
337 Id.
338 Id.
339 Cree Reg’l Auth. I, 1 F.C. at 447–48.
340 The Cree actually ªled two suits against the project, the other in Quebec Court,
Grand Chief Matthew Coon Come v. Quebec (Procureur Gen.), [1991] 37 Q.A.C. 293
(Can.). The provincial case was dismissed on motion of the Attorney General of Canada
because it presented a federal question beyond the jurisdiction of the provincial courts.
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Unlike the La Grande case, federal Judge Rouleau was not unduly inºuenced by a year of testimony and reºection.341 Nonetheless,
his sympathy for the plaintiffs emerges from his recitation of the facts,
which read like a chronicle of government bullying and lies.342 The
Cree claim was that sections twenty-two and twenty-three of the James
Bay Agreement required the appointment of a federal administrator
to supervise the environmental impact of future development and to
set up independent evaluation committees “if the development is to
have any signiªcant impact” on the native people or wildlife resources
of the territory.343 And so the sections read as an exact replica of the
EARP guideline process. “I doubt,” noted Judge Rouleau dryly, “that
anyone can suggest that the Great Whale phase of the James Bay project will not ‘interfere with wildlife and its habitat, resulting in drastic
changes to the traditional way of life.’”344 Of course, Hydro-Quebec
was not ready to concede any such thing and had already once marshaled an army of witnesses and lawyers to say so.345 Denial of impacts
was not, however, its main defense. Instead it was denial of the
Agreement.
Simply put, Quebec and Hydro-Quebec argued, apparently with a
straight face, that the Agreement was not law. It was only a contract,
never a statute, and contracts are not enforceable in federal court.346
When it came to dealing with First Nations, the white man’s promises
seemed to hold little more water north of the border than they had in
the United States. Judge Rouleau, however, read the Agreement the
other way. The Parliament, he wrote, in approving the Agreement,
clearly required certain conduct of federal ofªcials, including the
Federal Administrator Robinson.347 Even if the law were unclear, the
court continued, “the sovereign’s intention must be clear and plain if
it is to extinguish aboriginal rights.”348 The court concluded, in terms
that would have gladdened Judge Malhouf’s heart as much as it darkened others in Montreal and Ottawa:
341 See Cree Reg’l Auth. v. Quebec (Procureur Gen.), [1991] 42 F.T.R. 160, 161–63
(Can.) [hereinafter Cree Reg’l Auth. II ].
342 See id. at 162–63.
343 See id. at 164.
344 Id.
345 See id. at 163.
346 Id.
347 Cree Reg’l Authority II, 42 F.T.R. at 165–66.
348 Id. at 166.
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I feel a profound sense of duty to respond favorably. Any
contrary determination would once again provoke, within
the native groups, a sense of victimization by white society
and its institutions. This agreement was signed in good faith
for the protection of the Cree and Inuit peoples, not to deprive them of their rights and territories without due consideration.349
Having found federal jurisdiction, the rest was short work. The
government’s attempt to bury the environmental review at the provincial level was “intended both to appease [local authorities] and circumvent the native populations” and appeared to have been negotiated by
the governments “in an attempt to free themselves” from the responsibilities of federal review.350 The federal government’s argument, further, that it had no responsibility to act until Hydro-Quebec submitted
its assessment for review was, in the court’s view, “entirely spurious;”
Hydro-Quebec could, by this logic, simply withhold its assessment, a
“ludicrous result.”351 Pointing out that federal review could not, as with
the EARP guideline order, enjoin the project, Judge Rouleau expressed
his astonishment that the government would resist it: “[I]f one accepts
the federal government’s argument that it is willing to comply with its
obligations towards the native people of this country, one is at a loss to
understand its refusal to fulªll that original contractual obligation” in
the James Bay Agreement.352 One can sense the anger. The implication
was clear. The federal government, however, facing a hostile Quebec,
was by no means anxious to fulªll its obligations towards the Cree or
anyone else. The government, of course, appealed.
The appellate opinion was long, technical, and focused nearly
exclusively on the question of federal jurisdiction.353 At journey’s end,
it wound up where Judge Rouleau had: Great Whale was subject to
federal environmental review. At long last, embarrassed by the press,
castigated by the courts, mocked by the provinces, reeling from the
after-effects of its timidity in Rafferty-Alameda and Oldman dams,
dragged into the ring with its heel marks all the way down the aisle, in
July 1991, the Canadian Environment Ministry announced that if
Quebec did not want to cooperate the federal government would
349 Id.
350 Id.
351 Id.
352 Id. See generally Quebec (Attorney Gen.) v. Cree Reg’l Auth., [1991] 43 F.T.R. 240
(F.C. Can. A.D.) [hereinafter Cree Reg’l Auth. III ].
353 See generally Cree Reg’l Auth. III, 43 F.T.R. 240.
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conduct the review of the Great Whale project on its own.354 Softening its punch, it added that it could not guarantee that Quebec would
delay construction until the environmental ªndings were released.355
Even this concession was not enough for Quebec’s Energy Minister,
who told reporters that the province would “never submit” to Ottawa’s
procedure, adding that what the federal government was doing was
“illegal.”356 Illegal or court-ordered, below the bluffs and threats, the
federals were now in the game and the time, information, and project
delays obtained in their review would prove critical for the Cree.
C. Great Whale II
We wish we had never signed the James Bay Agreement. Its terms
have not been honored. You might as well just put a stone around
our necks and drown us in the reservoirs.
—Matthew Coon-Come, Grand Chief, Cree Nation 357
In spring 1990, one the strangest processions of the century
made its way by water and truck down from the Inuit and Cree villages
along James Bay, south to Montreal, and then down the Hudson River
to New York City.358 It was the brainchild of a U.S. kayaker named
Denny Alsop who had canoed rivers on the Canadian shield now to be
ºooded by the James Bay project.359 One angry American. At his suggestion, the Cree and Inuit built a new kind of boat with the bow of
an Indian canoe and the stern of an Eskimo kayak, to which they gave
the hybrid name Odeyak. On April 20, Earth Day, with press boats following and helicopters overhead, the Odeyak, supporting canoes and
sixty Cree and Inuit, reached Times Square. First to speak was Mathew
Coon-Come. “Hydroelectric development is ºooding the land, destroying wildlife and killing our people,” he said.360 They would
change Hydro-Quebec’s world.
The environmental review mandated by Cree II now unfolded on
two fronts, each feeding the other and making life increasingly
difªcult for the Great Whale project. One was in Canada, where Hy354 See id.
355 Id.
356Walker, supra note 316, quoting Lisa Bacon, Quebec Minister of Energy.
357 McCutcheon, supra note 296, at 153, quoting Matthew Coon Come, Grand Chief,
Cree Nation.
358 Id. at 185–86. The description of the ºotilla that follows is taken from this account.
359 Id. at 185.
360 Id. at 185–86.
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dro-Quebec and its allies hoped to complete the process within a
year.361 Instead, the Cree and other opponents packed the “scoping”
meetings that deªned the review362 which, now federal, was not
bound by Quebec’s will-of-the-applicant standard. The assessment
rules that emerged were exigent, requiring, among other things, consultation with the Cree and Inuit communities. Hydro-Quebec cobbled together 5000 pages of studies going back to the ªrst litigation,
and, in its haste, gave short shrift to the consultation. Its environmental assessment would end up before three independent review
committees, two under the Federal Administrator and established by
the James Bay Agreement and the third under the Ministry of Environment and the EARP guidelines order. The corporation demanded
a response within forty-ªve days. The summer construction season was
passing and loans were pending. Time was not on Hydro’s side.
There was a fourth venue, however. It could not have been anticipated by anyone, and it proved dispositive. Much of the market for
the Great Whale project lay south of the border in the New England
states.363 Americans had always been big players in Canadian hydroelectric projects; in fact they owned the ªrst ones outright, and U.S.
lenders ªnanced much of the La Grande works, phase one.364 In the
late 1980s, Hydro-Quebec signed power sale contracts with Vermont
and Maine, but the big one was an “agreement in principle” for
twenty-one years of supply to the New York Power Authority.365 The
New York contract was predicted to meet 6% of the state’s total energy needs by the end of the century and bring up to $40 billion in
revenue to Hydro-Quebec.366 The project cost about that much to
build. Which is to say that New York held the cards. And its agreement
was only “in principle.”
Opposition to the Great Whale project along the southern tier
began not with its impacts on the distant Cree but with the arrival of
gigantic transmission corridors across the towns and dairy farms of
Quebecois along the American border.367 People feared the power
lines, their size, sight, magnetic ªelds, and the herbicides needed to
361 See Grand Council of the Crees, supra note 313. The description of the scoping and
assessment that follows is taken from this account.
362 See generally McCutcheon, supra note 296.
363 Id. at 92–94.
364 Id. at 160; Grand Council of the Crees, supra note 313, at 2.
365 McCutcheon, supra note 296, at 138; Verhovek, supra note 230.
366 McCutcheon, supra note 296, at 138. The description of the opposition that follows is taken from this source.
367 Id. at 159–63.
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maintain them. They learned about them not from Hydro-Quebec
but from American groups and newspapers. Raising these questions
they found the company “arrogant” and “contemptuous of the public;” they “tried to mislead.” The allegations had a familiar ring. Coalitions of consumers, churches, unions, and environmental and native
peoples groups began to oppose the project. They set up an ofªce in
Montreal. Below the border, a group of residents calling themselves
PROTECT (Prudent Residents Opposed to Electrical Cable Transmission) formed to oppose a line across the New York countryside. No
Thank Q Hydro-Quebec campaigned against the lines in Maine and
then, breakthrough, succeeded in persuading state legislators to reject the Hydro contract for failure to consider cheaper options such as
energy efªciency.
Then, in New York, the wheels came off. Organizations of every
stripe, singly and in coalitions, began to lobby politicians to cancel the
New York Power Authority agreement.368 At one point there were at
least thirty anti-Great Whale groups on college campuses throughout
New York State, and more elsewhere across the Northeast. To HydroQuebec and its supporters, Great Whale electricity was a no-brainer
for New York: “clean” power, no air emissions, good rates, long term
stability.369 But the opponents raised a larger moral question: was this
source clean, or, in the words of a New York reporter, “simply tantamount to exporting environmental and cultural destruction to the
taiga”?370 Hydro-Quebec’s campaign featured pictures of its employees “carefully airlifting animals to safety from islands created by the
ºooding.”371 They didn’t persuade one Buffalo politician, who spoke
for many when he said that New York should avoid becoming “an accomplice to the crime.”372 And then the Cree, Inuit, and Mathew
Coon-Come appeared in Times Square.
At this point, the Hydro-Quebec ball was no longer in Canada’s
court; it was in Albany with then-Governor Mario Cuomo. The New
York Power Authority had already ºexed its muscle with the company.
In a letter to the New York Times, the Authority’s Chairman related:
“Largely at my urging Hydro-Quebec agreed not to begin construction of roads and other ancillary features until the entire project has
368 Id. at 161–62.
369 Verhovek, supra note 230.
370 Id.
371 Id.
372 Id.
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undergone review.”373 He continued: “I have personally advised Hydro-Quebec that we will not buy a single kilowatt of its power unless
environmental and native peoples’ concerns receive full scrutiny under Canadian procedures.”374 In a single stroke, the New York Power
Authority had succeeded in accomplishing what the Canadian Ministry of Environment had been unable to do in three tries from Rafferty
to Oldman to Great Whale, and it was the most obvious step in the
world: stop construction pending environmental review. In late 1992,
Governor Cuomo cancelled the $22.7 billion twenty-one-year agreement to buy Hydro-Quebec power, citing lack of future power demands.375 He had become a believer in “least cost,” demand-side
management: energy efªciency instead.376
A year-and-a-half later, with the Great Whale still alive and under
Canadian review, a third Cree lawsuit came down from the Canadian
Supreme Court.377 Hydro-Quebec not only needed U.S. purchasers, it
needed the all-clear from the Canadian National Energy Board to export the electricity.378 The Board’s mandate, inter alia, required a
ªnding that the electricity was not needed to meet Canada’s own power
demands in the foreseeable future.379 The licensing process began in
the late 1980s and, while it was in progress, the Canadian Parliament,
conveniently for Hydro-Quebec, repealed this “Canada ªrst” requirement, leaving only a highly discretionary standard that the sale be in
“the public interest.”380 Vague standards like this are usually a joy to the
regulated community. They release the regulators from pressures of law
and subject them all the more to the pressures of politics.
In this case, though, the Energy Board did not give Hydro-Quebec
carte blanche. The Cree and environmental groups had intervened in
the proceeding to challenge the company’s beneªt-cost analysis and
the Board’s exercise of its ªduciary duties towards native peoples.381
They lost on these claims but won a huge concession: the Board attached conditions to its license that required compliance with the
373 Richard M. Flynn, Letter to the Editor, N.Y. Times, Jan. 26, 1992, § 6, at 6.
374 Id.
375 Mark Clayton, Canadian Court Ruling Heartens Native Groups, Christian Sci. Monitor (Boston, Mass.), Mar. 2, 1994, at 4.
376 See id.
377 See generally Quebec (Attorney Gen.) v. Canada (Nat’l Energy Bd.), [1991] 3 F.C.
443 (Fed. Ct. Can.) [hereinafter Quebec (Attorney Gen.) I ].
378 Id. at 446.
379 Id. at 453.
380 Id. at 453–54.
381 See id. at 443.
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EARP guidelines and successful completion of that review process.382
Further, the scope of the environmental review would include not simply the transmission lines carrying the power out of Canada but also
the “future construction of production facilities.”383 As the Board
noted, the transmission impacts were minor;384 the production impacts
were huge. Another review nightmare for Hydro-Quebec. It appealed,
and won before a friendly appellate court.385 The inclusion of the production facilities was seen as beyond the Board’s jurisdiction and ultra
vires.386 And so it was the turn of the intervener Cree and environmental organizations to appeal. They were joined by the U.S.-based Sierra Club Legal Defense Fund and Friends of the Earth.387 And ultimately, by the Supreme Court of Canada.
In March 1994, a unanimous opinion had little difªculty ªnding
a relationship between the licensing of export and the production of
the electricity to be exported. To exclude the production would denigrate the environmental review process. “I would ªnd it surprising,”
wrote the lead author, “that such an elaborate review process would
be created for such a limited inquiry [as the transmission lines
only].”388 But lurking beneath this argument was the one that has
continued to haunt all of Canadian environmental law: did such a
broad exercise of federal authority by the Energy Board contravene
the basic, decentralized structure of the Constitution Act of 1867?
Here the court did a lawyerly thing. It said that it would “expressly refrain” from “making any determinations” that interpreted the Constitution in this regard.389 Next, it proceeded to do so.
“It must be recognized,” began the court with some understatement, “that the environment is not an independent matter of legislation” under the Constitution, and that it is a “constitutionally abstruse
matter which does not comfortably ªt within the existing division of
powers without considerable overlap and uncertainty.”390 When someone starts using the word “abstruse,” one senses thin ice. The court had
to be “careful,” it went on, “to ensure that the Board’s authority is truly
382 Id. at 443, 447.
383 Quebec (Attorney Gen.) v. Canada (Nat’l Energy Bd.), [1994] 1 S.C.R. 159, 189
(Can.) [hereinafter Quebec (Attorney Gen.) II ].
384 Id.
385 See Quebec (Attorney Gen.) I, 3 F.C. at 446.
386 See id. at 444.
387 See generally Quebec (Attorney Gen.) II, 1 S.C.R. 159.
388 Id. at 191.
389 Id. at 192.
390 Oldman River II, 1 S.C.R. ¶ 94.
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limited to matters of federal concern.”391 The Oldman question, redux.
The court explained: “That does not artiªcially limit the scope of the
inquiry to the environmental ramiªcations of the transmission of
power by a line of wire”—a statement which is up to this point clear—
“but it equally does not permit a wholesale review of the entire operational plan of Hydro-Quebec.”392 Which at this point is not clear at all.
If the review does not include the entire plan, then how much of it? If
the federal statutory authority extended to the lines and export, then
how far into the access roads, power plants, and mercury toxins could
the Energy Board go? Without offering an answer, the court concluded
that the Board decision and its environmental conditions, which included consideration of future project construction, “struck an appropriate balance between these two extremes.”393 Court to federal agencies: we really have no idea how to reconcile federal environmental
review with the Constitution. But what you’re doing here looks okay.
The court was even more equivocal when it came to the question
of moving forward on a project while the review was taking place.
Here, it stressed that the EARP guidelines did not require the board
“to suspend its decision-making until the environmental assessment of
all future generating facilities is completed” (emphasis added).394
Which left unanswered the question of suspending some of the future
facilities, the more imminent ones. Wringing its hands much as the
Environment Ministry itself had over the same issue, the court noted
that it was “preferable” to treat the environmental concerns before
proceeding.395 Rather than insist on it as a matter of law (and common sense, to say nothing of the preservation of the court’s jurisdiction as well), however, the opinion simply approved the Energy
Board’s retention of authority to cancel the licenses if its conditions
were not met.396 All of which meant that, under Canadian law, HydroQuebec remained free to march forward at its own peril, loading the
equities in its favor through contract commitments and sunk costs. It
would sink $400 million.397
The indirection and caution of the Supreme Court’s opinion notwithstanding, Cree III complicated matters enormously for the com391 Quebec (Attorney Gen.) II, 1 S.C.R. at 192.
392 Id. at 195.
393 Id.
394 Id. at 198.
395 Id. at 199.
396 Id.
397 Clayton, supra note 375.
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pany. Yet another venue for environmental review, intervention, and
delay. Hydro-Quebec tried to put on a brave face, “as long as the Supreme Court hasn’t canceled any of our contracts, we are satisªed,”
said its President Armand Couture,398 but the interest on its borrowed
millions was making its “cheap” electricity more and more expensive.399
Then, in mid-November of 1994, all three Canadian environmental review boards reported in. Their conclusion: Hydro-Quebec’s hastilyassembled environmental assessment was not in compliance with the
EARP guidelines.400 The company would have to go back to square
one. That was a very long way back.
The next afternoon, the Premier of Quebec, faced with the loss
of his U.S. customers, mounting opposition, and the added obstacle
of new environmental reviews, threw in the towel. He announced the
abandonment of the Great Whale project.401 He said he had never
been in favor of it anyway.402
D. Another Requiem: The Rupert-Broadback-Nottoway
I’ve fought them for seven years, hand-to-hand combat, every day,
week after week, to preserve our river. You can imagine how I feel
now.
—Cree negotiator, 2001 403
Stories like this should have an end, but they never do. Enormous amounts of money ªnd their way like water, and there is no
holding them back. Perhaps the most destructive phase of all the
James Bay projects was yet to come. Phase three planned to divert the
ºow of the Nottoway and Rupert Rivers, legendary white waters and
historic routes of the fur trade, into the Broadback River, storing the
water in seven new reservoirs, sending it through eleven powerhouses,
and transforming the lower portions of the Nottoway and Rupert
398 Id.
399 Id.
400 Grand Council of the Crees, supra note 313, at 7.
401 Id.
402 Id.
403 Boyce Richardson, James Bay Crees Surrender Their Great River Rupert to Industrial Development: Rely on Quebec Promises in Return (Oct. 26, 2001), http://www.ottertooth.com/Reports/ Rupert/News/rupert-surrender3.htm; see also McCutcheon, supra
note 296, at 141.
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(“one of the most magniªcent wild rivers in Canada”)404 into dry
rock.405
Compared to the impacts of the Great Whale and even the La
Grande, these would be far more severe.406 The shallow reservoirs
would ºood about twice the area as those proposed on the Great
Whale, and they and their associated roads, power lines, dikes, and diversions would destroy more southern and biologically important wildlands.407 Inundating more vegetation, the reservoirs would also release
more toxic methyl mercury downstream. These were prime ªsheries
and core habitat for moose, caribou, beaver, and other species on
which the Cree depended. The access roads would also open more forest for penetration by loggers, miners, trappers, oil, and gas and a host
of white-owned development from the south. The majority of the Cree
lived in this zone. Most of their villages and hunting grounds were here.
The lands along the Rupert and Nottoway were the “veritable heartland
of the Cree way of life.”408
The Cree resisted. When Hydro-Quebec ofªcials came to the
mouth of the Rupert River to sell the village of Waskaganish on a joint
venture this time, sharing some of the Rupert diversion proªts, they
were “put into a canoe and hustled out of town.”409 But the money
was huge. And the Cree were living with, by their estimate, the loss of
$5 billion a year in their own resources from the La Grande and associated projects, for which they were receiving next to nothing in return.410 The interest on resistance compounded daily.
In October 2001, after more than thirty years of ªghting the
James Bay projects in total and ten on the Rupert-BroadbackNottoway, the Cree capitulated.411 In a deal hauntingly reminiscent of
the James Bay Northern Quebec Agreement twenty years earlier that
had unleashed the La Grande project and extinguished Cree claims
in return for a cash payment, relocation of one dam and joint management authority over wildlife,412 Quebec and Hydro-Quebec did it
again. It is hard, it is indeed impossible, to blame the Cree. Still living
404 Richardson, supra note 403.
405 McCutcheon, supra note 296, at 141; Verhovek, supra note 230.
406 McCutcheon, supra note 296, at 163. The description of phase three that follows is
taken from this source.
407 Id.
408 Richardson, supra note 403.
409 Id.
410 Id.
411 Id.
412 See Roslin, supra note 293.
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on the margins and largely deprived of the assumed beneªts of both
the earlier Agreement and the hydro development, they were at the
end of their tether.413 The promised community development hadn’t
happened. Very few Cree had been trained and employed with the
companies. The cash payment proved inadequate. Then it ran out. At
the same time, more roads, mining, timber cuts, and development
kept spilling up from the south, from which the Cree were getting no
cut at all. As one of the Cree negotiators explained the settlement, “I
feel it is about 51 percent a good idea, and 49 percent bad.”414
This time the Cree received more autonomy and more money.
They assumed authority over wildlife management and community
development. And an annual cash payment rising to $70 million for
the next ªfty years. Cheap for Hydro-Quebec, which, in the end, as a
state monopoly, would not have to pay for it anyway. Huge money for
an entire people on the brink. Which way did responsibility lie? Other
provisions appeared cosmetic. Under the announced forest regime,
25% of Cree traplines would not be cut, and the rest managed by
“mosaic” cutting, the kind of habitat fragmentation that dooms deep
woods species. In the U.S. experience, once logging roads go in, mining, off road recreation, poaching, and the rest follow like wagon
trains. The Cree would get the money. They would lose the land.
Quebec left nothing to chance. The Cree agreed to drop all lawsuits and not to bring any more lawsuits against the province to enforce its obligations under the James Bay Agreement. The Cree not
only gave up their heartland, they gave up their law. A Quebec northern expert, Louis-Edmond Hamelin, later commented: “nothing in
this document indicates that each side has understood the culture of
the other.”415
IV. Reºections on Rafferty-Alameda, Oldman and
the Great Whale
It is difªcult at long range, even presumptuous, for an American
to draw conclusions about cases in another legal system, another web
of cultures, and another set of assumptions about the way things work
and ought to work. The task is better done in this case by Canadian
413 Richardson, supra note 403. The description of the settlement that follows is taken
from this source.
414 Id.
415 Id. The author writes: “the Crees have, in a sense, stripped themselves naked before
their long-term adversaries, and are now hoping they will keep their promises as they have
not done in the past.” Id.
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scholars, and they do it every day. There is some value, nonetheless, in
offering a comparative view of these same issues from another system,
particularly one largely identical to Canada in language, in economic
and social development, and in the same struggle to come to grips
with environmental law. The United States experience with water projects goes back more than a century, and with environmental impact
review to 1969. This author’s personal experience with both, as a litigator and scholar, goes back to 1971. The political shenanigans, evasions of responsibility, and half-hearted compliance noted in this brief
history are found throughout American environmental law, never
more so than the current day,416 and the American treatment of its
native peoples is one of its greater disgraces. In short, the United
States has little to preach or teach here. What this author hopes to
offer is a more modest reºection on what these particular cases say
about how Canada and the United States approach environmental
responsibilities.
(1) Rafferty-Alameda, Oldman and the James Bay Development
litigation propelled Canada into modern environmental law and one
of its primary mechanisms, environmental impact review. Prior to
these cases, Canada had an opaque administrative order of uncertain
application and even less certain enforcement, overlaid on a constitutional system which cast serious doubt on whether the federal government could be doing this at all. Starting with Rafferty, these doubts
were put to rest, at ªrst in theory and then in practice. As they were
put to rest, the public clamor for a greater federal role emboldened
an under-nourished Ministry of Environment to intervene, secure the
reviews, speak out, and ªnally act on behalf of environmental protection.417
416 For a detailed critique of recent U.S. government performance of its impact assessment obligations under NEPA, see generally Jay E. Austin et al., Envtl. L. Inst., A ‘Hard
Look’ at Judicial Decisionmaking Under the National Environmental Policy Act
(2004); William Snape III & John M. Carter II, Defenders of Wildlife, Weakening the
National Environmental Policy Act: How the Bush Administration Uses the Judicial System to Weaken Environmental Protections, available at http://www.defenders.org/publications/nepareport.pdf (last visited Apr. 20, 2006).
417 The Canadian environmental agency’s tentative approach to environmental regulation parallels that of the Council on Environmental Quality (CEQ) in the United States.
The National Environmental Policy Act of 1969 (NEPA) set out national goals for environmental protection that were so vague as to, ultimately, be found unenforceable, and an
environmental impact review process held, over time, to be purely procedural. See 42
U.S.C. § 4331 (West 2006) (establishing goals and policy); 42 U.S.C. § 4332(c) (requiring
environmental impact statement requirement); Robertson v. Methow Valley Citizen Council, 490 U.S. 332, 350 (1989) (stating that requirements are purely procedural). It also
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At the same time, these cases revealed dysfunctions in the Canadian review system that became so obvious that Parliament could not
ignore them. In 1992, it responded with a new Canadian Environmental Assessment Act418 which, with amendments in 2003,419 became
a stronger vehicle for environmentalists dwarfed by economic interests in a country still so rich in natural resources and undeveloped
space that it remains very much in conquest mode. The Canadian environmental impact assessment system, on paper, trumps that of the
United States in several ways, most importantly the independent review panels; U.S. environmentalists would kill for them.420 As important as their mechanisms, however, is the reliance of both systems,
U.S. and Canadian, on citizen enforcement, and it is here where the
U.S. civil society and its tradition of highly-organized and well-funded
groups able to challenge government decisions comes center stage.
established the CEQ as an advisory body to the President (indeed, it’s formal name is the
President’s Council on Environmental Quality) with few responsibilities other than annual
reports to Congress and no hint of authority over other federal agencies. 42 U.S.C.
§§ 4342–4344. The early development of NEPA’s impact assessment process was left to
court decisions, following which, in the early 1970s, CEQ would send out interpretative
memoranda recapping the opinion, usually with an afªrmative spin. Emboldened by a
growing body of court decisions and memoranda, it issued a set of NEPA interpretative
guidelines, similar to those of the Canadian Environmental Agency, describing a process
for compliance with the statute. Council on Environmental Quality, 36 Fed. Reg. 7724
(Apr. 23, l971). Not promulgated under the Administrative Procedure Act and lacking
statutory basis, these guidelines were viewed as advisory only, although they were looked to
by the courts in individual cases for interpretation of the law. Compare Hiram Clarke Civic
Club, Inc. v. Lynn, 476 F.2d 421, 424 (5th Cir. 1973) (ªnding that guidelines are “merely
advisory”) with Envtl. Def. Fund, Inc. v. Froehlke, 473 F.2d. 346, 350 (8th Cir. l972) (relying
heavily on guidelines). It was not until 1976 and the election of a President with an environmental protection agenda that CEQ was empowered, by Executive Order, to engage in
rulemaking and issue NEPA regulations for the impact review process, binding on all federal agencies. Exec. Order No. ll,991, 42 Fed. Reg. 26,967 (May 24, l977). For the ensuing
thirty years, these regulations have become a central part of the law of NEPA, although, at
the time of this writing, both the regulations and the statute were under critical scrutiny by
the White House and Congress. See Activists Fear Upcoming NEPA Bill Could Broaden Piecemeal
Rollbacks, 26 Inside EPA 36 (Sept. 9, 2005). In sum, the U.S. environmental agency and
review process, facing similar handicaps, evolved in remarkably similar ways.
418Canadian Environmental Assessment Act, 1992 S.C. ch. 37 § 67.
419 Canadian Environmental Assessment Act, 2003 S.C. ch. 9 et seq.
420 Particularly so, if the independent review panels were more frequently employed.
According to the Canadian Environmental Assessment Agency, 99 percent of projects subject to environmental assessments are not submitted to independent panels for review and
mediation. In practice, then, reviews in all but the most controversial projects are conducted by proponent agencies and permit applicants. For a critical view of the Canadian
process in action, see generally Andrew Green, Discretion, Judicial Review and the Canadian
Environmental Assessment Act, 27 Queen’s L.J. 785 (2002).
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(2) In both systems, but more markedly in the United States, the
enforcement of environmental assessment requirements against unwilling and non-disclosing agencies depends on judicial review.421
This is most obvious at the state or provincial level, where development pressures are highly localized and environmental critics speak
out at least at their social peril and at times more. It has become obvious today at the national level as well, as seen in the United States
with an administration openly hostile to environmental policy and
actively seeking to limit environmental impact review.422 In such a climate, it comes down to the courts or nobody.
Rafferty-Alameda, Oldman, and the Great Whale cases reveal the
great reluctance of Canadian courts to wade into this swamp. U.S. environmental litigation is not a pretty sight, and more than one reviewing
court has ended up with years of supervision over national grazing
policies, surface mining, and the preservation of the Paciªc Salmon.
And so when the court in Canadian Wildlife Federation I stated, somewhat
wistfully, that laws like environmental assessment presume a measure of
governmental good faith, it was clearly not seeking to intervene. But
when the Canadian Supreme Court ªnally said, in Canadian Wildlife
Federation II, that it had to apply environmental law to, above all persons, Ministers of the Crown, one sensed that they were crossing a Rubicon. The crossing is not complete and will in all likelihood remain as
contested in Canada as it is here in the States, but most of the army
went across and, for the same reasons found in the United States, that
is where the Canadian judiciary will likely remain. To do less simply
nulliªes the will of the people expressed through law.
(3) What the many cases that surround Rafferty-Alameda, Oldman, and the Great Whale also show is the terrible tension of federalism in today’s world. The globe is smaller. Environmental problems
are larger, and they are growing. Chemicals from U.S. industries show
up in the Arctic, shared species like the caribou and salmon are taking a terrible beating, and no one is immune from deforestation, cli421 Canadian environmental plaintiffs face signiªcantly higher obstacles than their
counterparts in the United States, among them the absence of speciªc provisions for citizen suits, the prospect of liability for litigation costs in the case of adverse decisions, standing-to-sue challenges and a strong tradition of judicial deference to government agencies.
E-mail from Professor Christopher Tollefson, University of Victoria School of Law, B.C.,
Canada, to author (Aug. 6, 2005, 01:21 CST) (on ªle with author). See generally Deborah
Van Nijnatten, Participation and Environmental Policy in Canada and the United States: Trends
Over Time, 27 Pol’y Stud. J. 267 (1999); Corriveau, supra note 47.
422 See generally Robert G. Dreher, NEPA Under Siege: The Political Assault on the National
Environmental Policy Act, Geo. Envtl. L. & Pol’y. Inst. (2005).
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mate change, or acid rain. The notion that the sources of these problems are best controlled by individual states and provinces, or even by
individual nations, is increasingly quaint and untenable.423 Yet these
are the premises under which Canada and the United States have organized themselves, and all nations have organized the world.
To expect a state or province, on the eternal hunt to win the
prize of economic development over its competitors, to give full shrift
to national and international interests, or even to long term sustainability, in projects like Rafferty-Alameda, Oldman, and the Great
Whale is to expect the impossible. Political futures are local and produced by short term gains. As for the long term, nobody gets their
name put on something that didn’t get built.
The United States, circa 2005, is on a rampage to unload federal
environmental responsibility, indeed all of the federal social responsibility it can, onto states, half of whom are in deªcit and few of whom
have the appetite to impose environmental requirements on their
own. Canada, never having gone very far at the federal level in the
ªrst place, continues to place primary responsibility even for endangered species protection—a matter many would consider of national
importance—at the provincial level.424 Call it “federalism” if one
wishes, or call it simply the bushhogging of environmental obstacles,
it ends up at the same place.
The Canadian Supreme Court was forced to deal with these issues in all three stories related in this article. One must conclude that
its rulings reveal the serious ambiguity of Canadian governance with
regards to federalism. One feels the tension in an opinion declaring
that “environmental protection has become one of the major challenges of our time,” while at the same time straining not to overstep
constitutional limits for the federal government to do something
about it.425 The U.S. Supreme Court, for its part as well, has begun to
question the interstate commerce rationale underlying federal envi423 See generally James Gustave Speth, Environmental Law: Can It Deal With The Big Issues?,
28 Vt. L. Rev. 779 (2004).
424 Canada’s recently-enacted endangered species law continues to vest primary protection and management responsibilities with the provinces, limiting federal jurisdiction to
federal lands, water and migratory species. Candian Species At Risk Act (SARA), 2002 S.C.,
ch. 29 (Can.). By contrast, sections nine and ten of the United States Endangered Species
Act impose federal protections over the entire country, including state and private property. Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884 (1973) (codiªed at
16 U.S.C. § 1531–1543 (1973)); Babbitt v. Sweet Home Chapter of Cmtys for a Great Oregon, 515 U.S. 687 (1995) (approving ESA protections on private lands).
425 See Oldman River II, 1 S.C.R. at 16.
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ronmental law.426 The fact remains, however, that neither Louisiana
nor Alaska is going to place a priority on protecting its wetlands when
it comes to oil and gas production. Nor will Quebec see the Canadian
Shield as much more than a cash cow. How Canadian and the U.S.
commitments to federalism meet the challenge of national environmental policy remains an open question.
(4) One last observation from Rafferty-Alameda, Oldman, and
the Great Whale is the most simple. Environmental review, safeguards,
and licenses are largely procedural. They lead to negotiated results.
With a demanding environmental agency and public support, these
efforts will lead to (in addition to a good deal of corporate image advertising) reduced pollution, mitigation measures, and a genuinelysoftened footprint. In most cases, however, these measures will be inadequate to offset the impacts. Not even close. The Piikan people may
get money to improve their way of life, and the Cree certainly will,
and that is a major plus. But their rivers are doomed.
In the cases at hand, the Rafferty-Alameda, Oldman, and La Grande
projects were built, the Rupert-Nottoway-Broadback grinds forward and
the Great Whale is on hold. Proposals like these never die. Were these
same projects proposed today, the provinces would be back in the lists
behind them and the federal environmental agencies, be they in Ottawa
or Washington, cowering in their tents. It would be up, once again, to
the people. Environmental review gives them a shot. Judicial review reinforces the shot. And on the success of that shot, so much depends.
426 See generally supra notes 42, 43.
INSERTED BLANK PAGE
BUILDING FORTRESS INDIA: SHOULD A
FEDERAL LAW BE CREATED TO ADDRESS
PRIVACY CONCERNS IN THE UNITED
STATES-INDIAN BUSINESS PROCESS
OUTSOURCING RELATIONSHIP?
Bryan Bertram*
Abstract: In the past few years, there has been a substantial surge in the
use of Indian vendors by U.S. businesses for the performance of business processes. These types of engagements, referred to as business process outsourcing, routinely involve the transfer of sensitive personal data
between U.S. and Indian ªrms. Thus, these types of transfers have
raised concerns over the security of such data. The United States currently regulates these data transfers by industry sector. This policy contrasts sharply with other jurisdictions such as Canada, Japan, and the
European Union where more broadly deªned regulations set principles
for the protection of data generally. This Note will examine whether the
United States should enact broader based legislation in order to regulate the growing trend of business process outsourcing to India and protect sensitive data that gives rise to personal privacy concerns.
A line of neatly dressed workers ªles into the Golden Millennium, a
shimmering glass-and-steel building in central Bangalore. One by one, they
swipe ID cards through a reader, then empty their pockets and bags and
stuff cell phones, PDAs, and even pens and notebooks into lockers as a dour
security guard watches. Staffers ending their shifts, meanwhile, are busy
shredding notes of conversations with customers. At the reception desk, visitors sign a daunting four-page form promising not to divulge anything they
see inside—and even then are only allowed to peer into the workspace
through thick windows.1
* Bryan Bertram is an Executive Editor for the Boston College International & Comparative Law Review.
1 Pete Engardio, Fortress India?: Call Centers and Credit-Card Processors Are Tightening Security to Ease U.S. and European Fears of Identity Theft, Bus. Wk., Aug. 30, 2004, at 28, 28.
245
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Introduction
The preceding example illustrates the importance Indian business
places on the security of personal data when maintaining business process outsourcing (BPO) relationships.2 This importance seems wellfounded given the recent dramatic growth in the BPO sector of India’s
economy.3 Many businesses already outsource or are considering outsourcing business functions that handle sensitive data.4 As businesses
continue to cut costs in order to improve their bottom line, they continue to outsource certain business processes that can be performed
more cheaply in countries such as India.5 In the context of these relationships, privacy of one’s personal information has become an issue
because of the highly sensitive nature of the data that often is transmitted in overseas BPO relationships.6 As a consequence, the Indian government and Indian businesses have taken many steps towards improving the security of personal data passed in these relationships.7
Despite Indian measures, increasing scrutiny has come to bear on
these relationships by the United States.8 Numerous new legislative
proposals have been introduced at both the state and federal levels.9
This scrutiny and associated legislation can be frustrating to India,
which believes it has made many good faith efforts at improving data
security and perceives concerns in the United States to be largely unjustiªed.10
The purpose of this Note is to analyze the U.S.-Indian BPO relationship. This encompasses current U.S. law governing overseas BPO,
its effects on the Indian government’s data privacy regulation, as well as
the reactions of U.S. and Indian ªrms. This Note argues that the
United States and India should both enact laws of general applicability
governing this relationship in order to correct current deªciencies as
well as provide a clear set of standards with which U.S. and Indian
businesses should comply and to which Indian law should conform.
2 See id.
3 See Paul Davies, What’s This India Business? 43–45 (2004).
4 See id.
5 See id. at 21–22.
6 See, e.g., Rahul Sachitanand, Lax Privacy Laws Hit Healthcare BPOs, Econ. Times (Gurgaon, India), May 7, 2004, available at Factiva Doc. No. ECTIM00020040506e05700015
(explaining the sensitivity of patient ªles outsourced in healthcare BPO and concerns in
the United States over security of this type of personal information).
7 See IT Industry Irked at TV Exposure, Hindu (Chennai, India), Aug. 18, 2005, at 3.
8 See Safety Matters: Outsourcing to India, Economist, Sept. 4, 2004, at 70, 70.
9 See id.
10 See id.
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Part I of this Note will consider background and history of the United
States-Indian BPO relationship by examining drivers behind the growth
of the overseas BPO market and its effects on both nations. Part II of
this Note will discuss the strengths and weaknesses of U.S. law in maintaining secure BPO transactions between U.S. and Indian ªrms. It will
do so by assessing deªciencies in U.S. law as well as examining Indian
efforts to conform to U.S. standards. This Note will conclude by summarizing the deªciencies that currently exist in the United StatesIndian BPO relationship and proposing that the federal government
adopt a law of general applicability to govern overseas BPO.
I. Background and History
Businesses are increasingly seeking to outsource processes that can
be accomplished more cost-efªciently in overseas locations.11 This type
of outsourcing, known as business process outsourcing, is deªned as a
business engagement that transfers responsibility for ongoing management and execution of a business activity, process, or functional
area to an external service provider in order to gain efªciencies and
improve performance.12 BPO arrangements are exceedingly complex
because they entail the transfer and execution of one or more complete business processes or entire business functions to an external service provider.13
BPO now constitutes an enormous growth area for business and
is the fastest growing segment of outsourcing arrangements.14 Traditionally, BPO occurred domestically.15 Nevertheless, advances in lowcost data transmission capability and cheap foreign labor pools have
11 See Davies, supra note 3, at 21–22.
12 Kapil Dev Singh, Understanding the Business of Business Process Outsourcing, in Business
Process Outsourcing: Trends and Insights 56, 57 (ASSOCHAM) (2003). Background
information on the conference where this publication was produced is available at
http://www.assocham.org/bpo/bpo16072003.html (last visited Feb. 10, 2006).
13 See id.
14 See William A. Tanenbaum, Information Technology and Business Process Outsourcing, in
PLI’s Ninth Annual Institute for Intellectual Property Law, 220, 230 (PLI Pats.,
Copyrights, Trademarks, and Literary Prop. Course, Handbook Series No. G0-016V, 2003),
available at WL 765 PLI/Pat 221. The term “outsourcing” was coined in 1988, but the phenomenon began as early as the 1950s and 1960s. William L. Deckelman, Jr., Outsourcing: A
Primer, in PLI’s 19th Annual Institute on Computer Law, 435, 439-40 (PLI Pats., Copyrights, Trademarks, and Literary Prop. Course, Handbook Series No. G0-004D, 1999),
available at WL 547 PLI/Pat 435.
15 See Fed. Deposit Ins. Corp., Offshore Outsourcing of Data Services by Insured
Institutions and Associated Consumer Privacy Risks 6 (2004), available at http://www.
fdic.gov/regulations/examinations/offshore/offshore_outsourcing_06–04–04.pdf.
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prompted a signiªcant movement of BPO overseas.16 The reasoning
behind this shift is that foreign labor is cheaper than comparable domestic labor and quality levels typically do not decline in such a relationship.17 Another desirable attribute of overseas BPO is the ability
to realize around-the-clock operations—when the workday ends in the
United States, it is just beginning in India.18 Finally, businesses often
turn to overseas BPO in order to focus efforts on “core” functions
where the ªrm has a competitive advantage while allowing others to
accomplish non-core functions.19 The BPO movement is also self fueling; as some businesses choose to embrace overseas BPO in order to
realize cost-efªciencies, other ªrms are forced to do the same in order
to remain competitive.20
Two of the major areas of growth in overseas BPO have been the
healthcare and ªnancial services industries.21 In healthcare, the use of
offshore contractors has increased in recent years due to advances in
information technology.22 The movement towards electronic medical
records and processing systems has allowed healthcare providers to shift
certain functions off-site if they can be performed more cost-efªciently
elsewhere.23 This technology now allows services such as technical support, transcription, collation, billing, insurance claims’ processing, and
x-ray analysis to be sent overseas.24 There are ªfteen to twenty large and
midsize vendors in India that service the healthcare market in both
North America and Europe, employing about 5000 professionals.25
Financial services is another area in which overseas BPO relationships have often been created in order to realize business
16 Id.
17 Davies, supra note 3, at 29–30. In fact, the level of quality in BPO relationships with
India may actually increase in comparison to domestic providers because work associated
with BPO is often held in more high esteem in India than in the United States. See id. at 30.
18 Fed. Deposit Ins. Corp., supra note 15, at 8.
19 Davies, supra note 3, at 22–23. Focusing on a ªrm’s core implies efªciency because
it allows a ªrm to invest in its own competitive advantage while allowing third parties to
accomplish other activities that the third party views as its own core. Id.
20 Fed. Deposit Ins. Corp., supra note 15, at 8.
21 See Tanenbaum, supra note 14, at 240.
22 Kenneth N. Rashbaum, Offshore Outsourcing of Health Data Services, 16 Health Law.
24, 24 (2004).
23 See id.; Davies, supra note 3, at 21−22.
24 Rashbaum, supra note 22, at 24. For example, recent statistics show radiological outsourcing increasing by 7% per year with 12% of hospitals currently engaging in such a
practice. Nathaniel H. Hwang, Comment, The Concerns of Electronically Outsourcing Radiological Services Overseas, 25 J. Legal Med. 469, 471 (2004).
25 Sachitanand, supra note 6.
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efªciencies.26 For example, Deloitte Consulting, L.L.P. estimates that
ªnancial institutions utilizing overseas BPO relationships achieve an
average cost savings of 39%.27 It is estimated that 25,000 tax returns
were completed by accountants in India in 2002 and that almost four
times that amount were processed in 2003.28
India has been a major recipient of overseas BPO because it possesses an advantage that most other countries do not: a relatively well
educated workforce.29 Due to the increasing sophistication of the Indian workforce, India is no longer just a source for cheap code and
call centers. BPO services offer opportunities for Western companies
to access the skills of Indian accountants, scientists, lawyers, and other
professionals.30 Helping matters further is a favorable tax regime instituted by the Indian government that catalyzes BPO sector growth.31
This conºuence of advantages has helped the Indian tech sector, of
which BPO is a part, to grow substantially in the past few years with
revenues most recently surpassing the $3 billion mark.32 McKinsey &
Company recently predicted that revenues to Indian service companies would grow to $142 billion in 2008.33 Further, U.S. businesses are
heavily invested in India as a BPO location; General Electric (GE), for
example, receives claims processing, credit evaluation, accounting,
and other functions for eighty global GE branches from 12,000 employees in India.34 The Indian BPO sector is one of the highest employment generators for young Indian graduates and has an annual
growth rate of more than 100%.35
26 See Tanenbaum, supra note 14, at 240.
27 Fed. Deposit Ins. Corp., supra note 15, at 7. This report goes on to indicate that
one in four institutions surveyed reported cost savings in excess of 50%. Id.
28 Richard G. Brody et al., Outsourcing Income Tax Returns to India: Legal, Ethical, and Professional Issues, 74 CPA J. 12, 12 (Dec. 2004), available at 2004 WLNR 14649302.
29 See Davies, supra note 3, at 30.
30 See Andrew Baxter et al., ‘Epidemic’ Warning on Mobile Viruses, Fin. Times (London),
Feb. 23, 2005, at 2.
31 Davies, supra note 3, at 46. In all reality, favorable tax policies are not directly aimed
at the BPO sector. See id. Nevertheless, tax beneªts aimed at the information technology
(IT) sector of the Indian economy have been extended to encompass overseas BPO based
on a theory referred to as IT enabled services (ITES). Id. Under the ITES tax scheme, if
overseas BPO services are enabled by IT (virtually all are), they qualify as IT services and,
therefore, also qualify for preferential tax treatment. Id.
32 See Tackling an Unseen Enemy, Hindu (Chennai, India), Sept. 27, 2004, at 14.
33 Davies, supra note 3, at 16.
34 E.g., id.
35 IT Sector Highest Employer of Graduates, Statesman (New Dehli, India), Dec. 20, 2005,
available at LexisNexis Academic Doc. No. A20055121936-F7A4-GNW.
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Overseas BPO transactions, of the kind between the United States
and India, invariably implicate concerns over personal privacy.36 According to a survey whose sample included 115 companies in India and
the United States, 82% of the companies in the United States were
concerned about information security practices in India.37 Such concerns seem well justiªed because the two industries experiencing the
most growth in outsourcing are ªnancial services and health care,
which are also two of the largest compilers of personal data.38
Privacy should be distinguished from conªdentiality and trade secrets.39 Privacy refers to the use and disclosure of personal information;
it only applies to information speciªc to individuals.40 Different jurisdictions have often deªned privacy protection in different ways, but
most deªnitions coalesce around a set of certain principles.41 The fundamental principles underlying privacy protection are summarized in
the Fair Information Practices deªned by the Federal Trade Commission: (1) notice; (2) choice; (3) access; (4) security; and (5) enforcement.42 Notice includes both notice that personal information is being
collected as well as notice regarding any disclosure to a third party.43
The “choice” principle refers to the notion that the consumer ought to
retain the ability to opt out from use or disclosure of personal information by a third party.44 Security involves protecting personal information from unauthorized access or misuse.45 Access involves allowing an
individual whose information has been collected the ability to contact
36 See Francoise Gilbert, Privacy Strategies in Outsourcing, in The Outsourcing Revolution 2003: Protecting Critical Business Functions 523, 527 (PLI Pats., Copyrights,
Trademarks, and Literary Prop. Course, Handbook Series No. G0-01E8, 2003), available at
WL 767 PLI/Pat 523. Privacy can often be a loaded term, difªcult to deªne and with many
nuances. See Robert W. Hahn & Anne Layne-Farrar, The Beneªts and Costs of Online Privacy
Legislation, 54 Admin. L. Rev. 85, 88–94 (2002).
37 Sudha Nagaraj, BPO Fine But What About Data Privacy?, Econ. Times (Gurgaon, India), Nov. 6, 2004, available at Factiva Doc. No. ECTIM00020041105e0b60004o.
38 See R. Bradley McMahon, Note, After Billions Spent to Comply with HIPAA and GLBA
Privacy Provisions, Why Is Identity Theft the Most Prevalent Crime in America?, 49 Vill. L. Rev.
625, 628 (2004).
39 See id.
40 Gilbert, supra note 36, at 528–29.
41 See id. at 529.
42 Hahn & Layne-Farrar, supra note 36, at 91–94. European Safe Harbor guidelines for
United States businesses slightly expand upon the FTC deªnition listing onward transfer
and data integrity as additional principles underlying data privacy protection. Compare id.
with Davies, supra note 3, at 39.
43 See Gilbert, supra note 36, at 530.
44 See Hahn & Layne-Farrar, supra note 36, at 91.
45 Gilbert, supra note 36, at 530.
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the collecting entity with inquiries or complaints.46 Security is rather
self-evident from the name; reasonable steps should be taken to protect
the security of personal information collected from individuals.47 Finally, enforcement entails adequate remedies to cure violations when
they do occur.48
In the most extreme example of a privacy breakdown, a Pakistani
woman working remotely for a medical center in California threatened
to post conªdential patient records on the internet if she was not given
a pay rise.49 Pakistan is certainly not India, but in the perceptions of
many, it was close enough.50 For their part, Indian ªrms argue that
their data security policies are world-class; ICICI OneSource, the outsourcing arm of India’s largest private sector bank claims its policies are
superior to any in Europe and the United States.51 The lack of high
proªle incidents in BPO relationships supports this claim.52 At ICICI
OneSource, for example, there have only been two incidents of creditcard abuse, involving the theft of, respectively, $13 and $22.53 Nevertheless, when contrasted with a recent FDIC study that lists India amongst
countries with no data protection law, one must wonder whether the
lack of incidents stems from India’s measures or simply derives from a
certain measure of luck.54
II. Discussion
A. U.S. Regulatory Framework Governing Overseas BPO
The United States has so far never adopted legal measures generally applicable to overseas BPO but rather relies upon narrow
measures aimed at speciªc issues and industry sectors.55 The approach is very different from other developed nations and organiza46 Id.
47 See Hahn & Layne-Farrar, supra note 36, at 93.
48 See id. at 93–94.
49 See Safety Matters: Outsourcing to India, supra note 8, at 70.
50 Id.
51 Id.
52 See id.
53 Id. Heartland Information Services, Inc., a Toledo, Ohio medical outsourcing company, reported in 2004 an extortion attempt by an Indian worker using personal data.
Chris Seper, Outsourcing Brings Identity-Theft Risk, Plain Dealer (Cleveland, Ohio), May 24,
2004, at E4. This worker was subsequently arrested within twenty-four hours of the threat.
Id.
54 See Fed. Deposit Ins. Corp., supra note 15, at 20.
55 See Hahn & Layne-Farrar, supra note 36, at 116.
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tions such as Canada, Japan, and the European Union, which all have
more generalized data privacy laws that incorporate more stringent
requirements.56 The typical justiªcation for the approach taken in the
United States is that enacting more generalized legislation could be
prohibitively costly and lead to unintended consequences.57 Nevertheless, it is interesting to note at the outset that the lack of any privacy
legislation of general applicability has prompted the European Union
to deem the United States as lacking adequate privacy protection.58
1. Identity Theft
At a very general level, the Identity Theft and Assumption Deterrence Act of 1998 makes identity theft a federal crime and provides an
individual right of action for restitution as well as criminal sanctions.59
The Act was passed in response to the patchwork of laws that previously
addressed identity theft, and it carries strong penalties for violators.60
The Act also cured deªciencies in enforcement of identity theft; the old
patchwork of laws charged several different agencies with enforcement
while the Act vests enforcement responsibility with the FTC.61
2. Health Information
Personal health information is protected by the Health Insurance
Portability and Accountability Act of 1996, commonly referred to as
HIPAA.62 HIPAA was not originally written to protect privacy, rather, it
was meant to facilitate health insurance transferability and the transfer
of private information between entities.63 HIPAA’s privacy regulations
56 See Kenneth A. Adler, Recent Trends in Outsourcing: Understanding and Managing the
Risks, in 24th Annual Institute on Computer Law, 389, 406 (PLI Pats., Copyrights,
Trademarks, and Literary Prop. Course, Handbook Series No. G0-01K6, 2004), available at
WL 781 PLI/Pat 389.
57 See Hahn & Layne-Farrar, supra note 36, at 158–59.
58 Gilbert, supra note 36, at 559. This label prompted a lengthy negotiation of safe
harbor provisions for U.S. businesses in order to avoid costly impediments to the transfer
of data between the United States and Europe. Id. A U.S. company that adheres to the safe
harbor principles and completes the Department of Commerce’s self-certiªcation program will receive a presumption from all E.U. member states that its data privacy protections are adequate. Id.
59 Pub. L. No. 105-318, 112 Stat. 3007 (1998) (codiªed at 18 U.S.C. § 1028 (2006)); see
Hahn & Layne-Farrar, supra note 36, at 121.
60 McMahon, supra note 38, at 629–31.
61 Id.
62 Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codiªed as amended in scattered sections of 29 U.S.C. and 42 U.S.C. (2006)); see McMahon, supra note 38, at 645.
63 McMahon, supra note 38, at 644.
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were enacted by the Department of Health and Human Services subsequent to the legislation itself.64 HIPAA regulates the outsourcing of
data through the Privacy Rule which was published in December,
2000.65 The Privacy Rule regulates access through an opt-in choice
mechanism to provide privacy for patient information.66 This opt-in
mechanism only allows disclosure of personal information if the patient
expressly authorizes such disclosure.67
Despite restrictions on access, this rule has several enforcement
problems because it has difªculty reaching offshore BPO providers in
countries such as India.68 HIPAA does not directly address the possibility of privacy breakdowns by contractors.69 The Privacy Rule does
recognize that medical providers will inevitably outsource some of
their functions and designates the contractors for such work as Business Associates (BAs).70 BAs are subject to the same regulations as the
initial provider because the Privacy Rule requires BAs to enter into
contractual arrangements that conform with the provisions of the Privacy Rule.71 Problems arise because most medical providers initially
outsource to domestic ªrms that, in turn, will outsource to offshore
ªrms such as those in India.72 Even though those Indian BAs are subject to the same provisions of the Privacy Rule as everyone else, those
BAs are so attenuated from the original provider that promises may
be hollow at best.73 Exacerbating this difªculty is a lack of offshore
jurisdiction granted to the Department of Health and Human Services (HHS) which is charged with enforcing the Privacy Rule.74 Moreover, even though BAs must contract with the provider, the provider
has no obligation to monitor the conduct of any of its BAs.75
64 See id. at 645. The Privacy Rule is codiªed at 45 C.F.R. § 160.103 (2006).
65 See Gilbert, supra note 36, at 539.
66 McMahon, supra note 38, at 648.
67 Id.
68 See Rashbaum, supra note 22, at 25.
69 See id.
70 Id.
71 See id.
72 See id.
73 See Rashbaum, supra note 22, at 25.
74 See id.
75 Id. Even if a medical provider does monitor the activities of its business associates,
the great distances involved can often serve to mask privacy problems. Jaikumar Vijayan,
Security Expectations, Response Rise in India: Increasingly Tough Demands from U.S. Clients Spark
Change, Computerworld, Aug. 30, 2004, at 6. For example, a growing BPO ªrm that was
in the process of relocating to a larger facility decided to move some of its servers to an
internet café during a period of delay over the new facility’s opening. Id.
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Finally, HHS is the only entity that may enforce the Privacy Rule.76
The Rule provides no private right of action for health care consumers.77 This deªciency has not gone unnoticed and Senator Hillary
Rodham Clinton of New York has introduced a bill which would require create a private right of action for any misuse of this information
by an offshore concern.78 Some help is also provided by more stringent
state laws that are not preempted by HIPAA, but not every state has
such laws.79
3. Financial Information
Federal regulation of ªnancial services overseas BPO is accomplished through a web of federal statutes.80 For example, the Consumer
Credit Reporting Reform Act of 1996 places restrictions on credit card
agencies in using personal data, one notable restriction being disclosure only in instances of business need.81 At the center of federal
ªnancial regulation is the Financial Services Modernization Act of
1999, commonly referred to as the Gramm-Leach-Bliley Act (GLBA),
which provides privacy protection for personal data.82 One of the
strengths of this Act is its scope, covering ªnancial advice, credit counseling, credit cards, data processing, investments, lending check cashing, wire transfers, tax preparation, debt collection, or providing credit,
insurance, lay-a-way, ªnancing, brokerage, ªnancial aid, lease, or account services.83 The GLBA requires ªnancial institutions to make full
disclosure of their privacy policies to consumers.84 The GLBA further
requires that entities subject to the Act implement substantial security
measures and demands that the agencies that implement the GLBA
76 See Rashbaum, supra note 22, at 25–26
77 See id.
78 Safeguarding Americans From Exporting Identiªcation Data Act (SAFE-ID Act), S.
810, 109th Cong. (2005); Rashbaum, supra note 22, at 27.
79 See Rashbaum, supra note 22, at 26.
80 See id. at 28 (discussing ªnancial data).
81 Pub. L. No. 104-208, §§ 2403, 2413, 110 Stat. 3009, 3009-430, 3009-447 (1996)
(codiªed at 15 U.S.C. §§ 1681b(a), 1681s-2 (2006)); Hahn & Layne-Farrar, supra note 36,
at 122.
82 Pub. L. No. 106-102, 113 Stat. 1338 (1999) (codiªed at 15 U.S.C. §§ 6801–6809
(2006)); see Hahn & Layne-Farrar, supra note 36, at 123.
83 See Gilbert, supra note 36, at 535. The GLBA derives its sweeping scope from its applicability to the term “ªnancial institutions” which was not deªned in the Act but has
subsequently been deªned broadly by the FTC. McMahon, supra note 38, at 634–35.
84 James X. Dempsey & Lara M. Flint, Commercial Data and National Security, 72 Geo.
Wash. L. Rev. 1459, 1479 (2004).
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publish extensive security standards.85 The GLBA requires that any outsourcing concerns, even if offshore, must be under contractual agreement to comply with all applicable standards.86 The Federal Banking
Agencies have extended the responsibilities of ªnancial institutions to
also monitor the activities of any third party to which it transfers sensitive data.87 Further, the FTC has indicated its willingness to prosecute
any abuses of personal ªnancial data under the GLBA.88
Unfortunately, the GLBA has many deªciencies.89 Its opt-out
mechanism for limiting access to sensitive data is a point of controversy
for GLBA’s critics.90 Some have argued that few consumers actually exercise this option because consumers would have to struggle through
ªne print to learn how to protect their privacy.91 More narrowly, consumers do not have the normal opportunity to opt out of a transfer of
their information overseas when the purpose of the transfer is to “service or process a ªnancial product that the customer requested or authorized . . . or maintain or service the customer’s account.”92 This is
signiªcant when it is considered in relation to a recent FDIC report indicating that 15% of the ªnancial services cost current cost base ($356
billion) is expected to move offshore in the next ªve years.93
4. State Regulation
Despite the presence of these federal statutes regulating aspects
of overseas BPO, there remain a myriad of state statutes and common
law also affecting BPO transactions.94 Many states ªrst addressed these
85 Gilbert, supra note 36, at 536.
86 See id.
87 Fed. Deposit Ins. Corp., supra note 15, at 14.
88 See Rashbaum, supra note 22, at 28. In a letter to Congressman Edward Markey, FTC
Chairman Timothy Muris wrote, “[s]imply because a company chooses to outsource some
of its data processing to a domestic or offshore provider does not allow that company to
escape liability for any failure to safeguard the information adequately.” Id. Despite the
reassuring tone of its rhetoric, the FTC has not yet brought any actions against an overseas
provider for any breach of conªdential information. Id.
89 See id. The GLBA has many critics who argue that its protections have not provided
any real privacy enhancements. Hahn & Layne-Farrar, supra note 36, at 130. For example,
according to former Federal Trade Commission chairman Timothy J. Muris, “Acres of
trees died to produce a blizzard of barely comprehensible privacy notices.” Id.
90 See McMahon, supra note 38, at 635–36.
91 See id. at 636.
92 See Rashbaum, supra note 22, at 28 (citing § 502(c) of the Gramm-Leach-Bliley Act,
15 U.S.C. § 802(e) (2006)).
93 See Fed. Deposit Ins. Corp., supra note 15, at 2. The numbers in the FDIC study
were compiled by Deloitte Consulting, LLP. Id.
94 Gilbert, supra note 36, at 534.
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types of privacy issues under a theory of tort, and many still rely on
the common law that developed from such an approach.95 Beyond
the common law, state legislatures have passed numerous statutes addressing very narrow privacy concerns.96 Some states have even experimented with broader measures to guard personal privacy.97 For
example, California recently enacted legislation to compel
notiªcation of individuals when their information has been improperly appropriated by a third party, a requirement that cuts across industry lines.98
In addition to a complex regulatory framework, it is increasingly
obvious that many federal and state efforts to patch privacy holes are
not so much aimed at securing privacy as they are at preventing the
outsourcing of domestic jobs.99 An example of such veiled legislation
lies in a recent bill proposed by Senator George Voinovich of Ohio
that would restrict the outsourcing of work conducted by any companies with government contracts, a measure that is in no way tied to
privacy concerns.100 An amendment to this bill proposed by Senator
Christopher Dodd would take the provisions one step further to include state contracts funded with federal money.101 This type of legislation is not limited the federal level; for example, Virginia currently
has four anti-BPO bills pending, and the Secretary of Technology for
Virginia acknowledges that job preservation is a key motivator.102
3. Self-Regulation
Given the lack of a clear regulatory framework or any privacy law
of general applicability, the federal government has also often encouraged self-regulation.103 Self-regulation can involve such measures
as companies passing their own data privacy policies.104 Several or-
95 See id.
96 Id.
97 See, e.g., Timothy H. Skinner, California’s Database Breach Notiªcation Security Act: The
First State Breach Notiªcation Law is Not Yet a Suitable Template for National Identity Theft Legislation, 10 Rich. J.L. & Tech. 1, 21–23 (2003).
98 See generally id.
99 See Safety Matters: Outsourcing to India, supra note 8, at 70.
100 See Anti-BPO Steps: What to Worry About, Econ. Times (Gurgaon, India), June 18,
2004, available at Factiva Doc. No. ECTIM00020040618e06i000bx.
101 See id.
102 Id.
103 See Gilbert, supra note 36, at 561.
104 Id. An example of such a company policy is that of Amazon which reads:
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ganizations now provide seals of approval for these types of privacy
policies if they meet certain minimum requirements.105 Further, Indian businesses have enormous incentive to avoid privacy scandals so
as to avoid the bad publicity associated with a privacy breakdown.106
The Bush Administration favors self-regulation to secure privacy.107
B. The Indian Reaction to U.S. Data Privacy Law
Currently, the only law that speciªcally governs Indian businesses’
protection of personal data derives from foreign jurisdictions such as
U.S. or European Union data privacy laws.108 Nevertheless, Indian
lawmakers have enacted Indian laws that indirectly regulate Internet
commerce.
Indian businesses have typically been very concerned about privacy
concerns and overseas BPO transactions.109 This should not be surprising given the large contributions of the BPO sector to India’s economy.110 In order to quell both U.S. political and business concern, India has enacted several measures to prevent any data privacy abuse.111
1. Information Technology Act of 2000
Most prominent was India’s adoption of the Information Technology Act of 2000.112 This Act was based on the Model Law on Electronic Commerce adopted by the United Nations (U.N.) in 1997.113
We employ other companies and individuals to perform functions on our behalf
. . . . They have access to personal information needed to perform their functions,
but may not use it for other purposes. . . . Other than as set out above, you will receive notice when information about you might go to third parties, and you will
have an opportunity to choose not to share the information.
Id. Company policies often have real enforcement teeth because failure to comply with
one’s own privacy policy may open a company up to prosecution based upon misrepresentation or unfair and deceptive practices. Id. at 563.
105 Id. at 562.
106 See Stella M. Hopkins, Outsourcers Are Anxious to Safeguard Your Privacy, Charlotte
Observer, Feb. 12, 2005, at 1D.
107 Skinner, supra note 97, at 60.
108 See id.
109 See Engardio, supra note 1, at 28.
110 See Davies, supra note 3, at 16.
111 See Pavan Duggal, Legal Issues Confronting the Indian Outsourcing Industry, in Business
Process Outsourcing: Trends and Insights, supra note 12, at 62, 62.
112 See id. at 62.
113 Theodore P. Augustinos et al., International Banking and Finance, 35 Int’l Law. 287,
319 (2001).
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At a broad level, this legislation was an important step forward because it placed India amongst only a few countries that currently regulate Internet transactions.114 The opening provisions of the Act read:
An Act to provide legal recognition for transactions carried
out by means of electronic data interchange and other
means of electronic communication, commonly referred to
as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage
. . . .115
Although the Act is not generally applicable to data privacy speciªcally,
it does deªne a certain universe of “electronic” activity for regulation,
and the typical BPO relationship is a subset of this universe.116 Of
speciªc interest to BPO transactions with the United States are Sections
4, 5, 7, and 79 of the Act.117 The aforementioned sections are applicable to overseas BPO because they deªne data, mandate standards for
the authentication and retention of that data, and provide penalties for
violations of these provisions.118 Nevertheless, even though the Act
deªnes data, it is completely silent on the issues of data protection.119
One of the most important aspects of this Act is the creation of a
special appellate court for violations of the Act’s provisions.120 Indian
courts are notorious for being exceedingly slow in their resolution of
disputes.121 As one scholar has noted, “[The Indian legal system] has all
the ºexibility and user-friendliness of a land mine, threatening to blow
up should you or anyone close to it look like moving.”122 Thus, the
creation of an independent appellate branch speciªcally tasked with
overseeing computerized transactions signals a dedication on the part
of the Indian government to ensuring that these transactions are dealt
114 See id.
115 Information Technology Act 2000, No. 21 of 2000 (India), available at http://www.
mit.gov.in/itbill2000.pdf.
116 See Duggal, supra note 111, at 62.
117 See id. at 62–67.
118 See id.
119 Id. at 67.
120 See Stephanie Overby, India to Adopt Data Privacy Rules, CIO Mag., Sept. 1, 2003, at 28.
121 See Dilip Mookherjee, Legal Institutions and Economic Performance, in The Crisis in
Government Accountability: Essays on Governance Reforms and India’s Economic
Performance 123 (2004). For example, simple matters such as dissolution of a partnership, where both partners have previously agreed to terms, have been known to languish in
the Indian court system for as long as ten years. Davies, supra note 3, at 159.
122 Davies, supra note 3, at 159.
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with expeditiously.123 It is important to note, however, that even creation of a special judiciary unit may not completely relieve the problem
of court delays.124 Delays in Indian courts are a function of two problems: “an insufªciently slow growth in the number of sanctioned positions, and a growth in the number of unªlled vacancies.”125 While creating a special judiciary unit might cure the former problem, it does
nothing to address the latter because it provides no guarantee that the
newly created judicial positions will be properly funded and staffed.126
2. Proposed New Privacy Legislation
Despite the progress made with the Information Technology Act
of 2000, India still lacks speciªc law regarding the protection of personal data in overseas BPO transactions.127 India’s government is currently working on new legislation to quell growing privacy concerns.128
The government plans to study laws both in the European Union and
the United States to ascertain how to best structure India’s own laws.129
Any proposal ultimately adopted by the Indian parliament will likely
reºect the European Union’s requirements on data privacy which
served as India’s original impetus to review its own laws.130 Nevertheless, U.S. business concerns will likely play a role too by inducing India
to refrain from setting standards that are too stringent and costly.131
3. Self-Regulation
Some of India’s efforts at complying with the demands of U.S.
privacy law have originated in the private sector rather than the legal
sector.132 The National Association of Service & Software Companies
(NASSCOM) is India’s national information technology trade group
and has been the driving force behind many private sector efforts to
123 See Overby, supra note 120, at 28.
124 See Mookherjee, supra note 121, at 124–29 (describing the causes of mounting
court delays in India).
125 Id. at 125.
126 See id.
127 See Duggal, supra note 111, at 67.
128 IT Industry Irked at TV Expose, supra note 7, at 3.
129 Sachitanand, supra note 6.
130 See Overby, supra note 120, at 28.
131 See Bureau of Indus. & Sec., U.S. Dep’t of Commerce, HTCG Dialogue on Defense Technology, Data Privacy, and Export Licensing (2004), http://www.bis.doc.gov/
InternationalPrograms/HTCG_Dialogue.htm.
132 See Safety Matters: Outsourcing to India, supra note 8, at 70.
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improve data security.133 According to Sunil Mehta, Vice President of
NASSCOM, “We want to make India kind of a Fort Knox of information of the world.”134 NASSCOM has been one of the contributors to
efforts to tighten the Information Technology Act 2000.135 NASSCOM
also plans to have the security practices of all its members audited by
international accounting ªrms.136 Additionally, NASSCOM directly
contributes to the development of legal enforcement mechanisms.137
For example, in Mumbai (Bombay), a center of Indian commerce,
NASSCOM has taught a dozen police ofªcers the basics in ªghting
cyber-crime.138
Because Indian ªrms have gone to such lengths to protect data
security, a new market, which is ancillary to the BPO market, has
emerged.139 Long Island-based Verint Systems Inc. provides systems
used for video and voice surveillance at a cost of $1000 per worker.140
Indian ªrms also pay up to $300 per worker for background checks
that can take several weeks to compile.141 Cyrca Data Security Solutions, a Toronto-based IT security, privacy and, compliance company,
has also entered the Indian market to provide consultancy services
regarding outsourcing.142
Given the extensive measures that Indian business and government have undertaken in order to meet privacy concerns, it seems neither unnatural nor unfair that they expect a positive perception of Indian data security.143 Yet, most of this demand for respect has gone
unrequited in the United States as political ªgures continue to use privacy as a smokescreen for efforts to curb outsourcing and protect
American jobs.144 Thus, one of the biggest problems in the U.S.-Indian
relationship does not implicate legal or private sector issues but, rather,
133 See id.
134 Hopkins, supra note 106, at 1D.
135 Outsourcing to India: Safety Matters, supra note 8, at 70.
136 See id.
137 See Edward Luce, India Acts to Protect Call Centre Security: Outsourcing Companies Know
Even a Single Leak of Sensitive Information Could Destroy Them, Fin. Times (London), Oct. 14,
2004, at 11; Hopkins, supra note 106, at 1D. Similar forces are planned for eight other
Indian cities. Id.
138 Id.
139 See, e.g., Cyrca Data to Enter Indian Market, Econ. Times (Gurgaon, India), Dec. 16
2004, available at Factiva Doc. No. ECTIM00020041215e0cg00013.
140 Engardio, supra note 1, at 28. Verint has already signed up over 100 call centers in
India for use of its services. Id.
141 Id.
142 Cyrca Data to Enter Indian Market, supra note 139.
143 See Safety Matters: Outsourcing to India, supra note 8, at 70.
144 See id.; Anti-BPO Steps: What to Worry About, supra note 100.
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perception by India that efforts to meet U.S. demands will be dealt with
fairly.145 U.S. policymakers who advocate restrictions in overseas BPO to
India often cite both privacy and employment concerns as their motivations.146 This only serves to hurt efforts at improved data privacy because India views these concerns more as an excuse to stem job loss
than any real concern over privacy.147 Further, this perception spans
both continents: U.S.-Indian citizens share India’s concerns over antiBPO trends.148 Anti-BPO efforts by U.S. policy makers have strained the
U.S.-Indian relationship by creating an Indian perception that privacy
concerns have become the hot new excuses for an age-old movement
to erect barriers to trade and stem the outsourcing of U.S. jobs.149
III. Analysis
The preceding discussion illustrates the narrow, industry approach
of U.S. law to overseas BPO.150 At the most general level, no federal law
deªnes a universal standard for personal privacy.151 Although generalized privacy restrictions exist for information policy within the federal
government, Congress has basically defaulted to a market-oriented
model that is supplemented by more narrowly deªned pieces of legislation.152 Use of self-regulation by business entities then supplements
these protections.153 This contrasts sharply with the more systematic and
wide reaching forms of legislation employed by member nations of the
European Union, as well as Canada and Japan.154
1. Beneªts and Detriments of Sectoral Regulation
The traditional justiªcation for this sectoral approach to privacy
legislation is utilitarian in nature, arguing that broader protections are
145 See Safety Matters: Outsourcing to India, supra note 8, at 70.
146 See Engardio, supra note 1, at 28 (discussing Indian resentment over anti-BPO legislation in the United States, even though India has made large investments in data security
and has had few breakdowns).
147 See id.
148 See generally Ishani Duttagupta, Outsourcing Row Tilts Indians Towards Bush, Econ.
Times (Gurgaon, India), Oct. 29, 2004, available at Factiva Doc. No. ECTIM00020041027
e0as00007.
149 See Engardio, supra note 1, at 28.
150 See Hahn & Layne-Farrar, supra note 36, at 116.
151 See id.
152 See id.; James P. Nehf, Incomparability and the Passive Virtues of Ad Hoc Privacy Policy, 76
U. Colo. L. Rev. 1, 1–2 (2005).
153 See Nehf, supra note 152, at 1–2.
154 See Adler, supra note 56, at 406.
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not cost-beneªt justiªed.155 This type of utilitarian balancing usually
favors less restrictive regulation that is narrower in scope.156 Given this
methodology, the current patchwork of sectoral laws is not all that surprising.157
The utilitarian approach to privacy balancing is open to criticism.158 Cost-beneªt analysis often favors the party that can better
quantify the values for its position which, in the context of the privacy
debate, is business seeking less regulation and less cost.159 Further,
some privacy advocates believe that the debate should not be utilitarian at all’ rather, they believe that people have certain rights to privacy
that should be protected without reference to cost.160
The narrowness of U.S. federal privacy policy is particularly evident when contrasted with the policies of the European Union.161
Countries enjoying membership in the European Union have enacted
laws regulating personal data.162 While each law may contain somewhat
different content, the European Union has harmonized these laws into
a general framework by requiring individual countries to follow guidelines set forth in the European Union Directive 95/46/EC on the Protection of Individuals with Regard to the Processing of Personal
Data.163 These guidelines include requirements similar to the previously discussed principles of notice, security, access, and enforcement.164 The European Union directive creates a guideline set of protections that every country must meet.165 Countries are, however, free
to institute more stringent requirements as they see ªt.166
Most notably, the European Union directive creates an omnibus
right of action, whereby data subjects can sue a data collector for misuse of data and receive monetary damages with ªnes as high as
$500,000 in some countries.167 “Individuals must be able to enforce
their rights rapidly . . . and without prohibitive cost.”168 Finally, there
155 See Nehf, supra note 152, at 2–3.
156 See id.
157 See id. at 2.
158 See id. at 29–30.
159 See id. at 29.
160 See Nehf, supra note 152, at 3.
161 See Davies, supra note 3, at 38; Adler, supra note 56, at 406.
162 Gilbert, supra note 36, at 533.
163 Id.
164 See id.; supra notes 42–48 and accompanying text.
165 See Gilbert, supra note 36, at 557.
166 See id.
167 See id. at 533–34.
168 Id. at 558.
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must be an institutional mechanism allowing for investigation of complaints.169 Mandating such a set of legal enforcement mechanisms ensures that EU law never encounters a deªciency such as that associated
with HIPAA: lack of a private right of action over a data privacy violation.170
Nevertheless, generalized legislation such as the European Union
directive is not without its criticisms.171 First, generalized statutory
language always runs the risk of becoming out of date in quickly shifting technological environments.172 Further, legislation proper for one
sector of business may be over- or under-restrictive for another.173
Generalized laws lose the ability of sectoral legislation in their ability
to target speciªc protections to speciªc industries.174 Finally, generalized legislation creates certain costs to doing business that could potentially place a country at a disadvantage in the marketplace.175
2. Need for Default Rules
Despite these shortcomings, it would still appear advisable that the
United States adopt some of the philosophies of its European neighbors and implement some form of general applicability law to overseas
BPO in order to govern the U.S.-Indian BPO relationship.176 Establishing a set of principles governing overseas BPO would be beneªcial because it would set a minimum set of standards for data privacy to which
all BPO relationships would have to conform.177 Model principles of
this sort are readily available in the form of the European model as well
as the previously discussed Fair Information Practices promulgated by
169 Id.
170 Compare Gilbert, supra note 36, at 557 (explaining the European system whereby the
E.U. Directive creates an omnibus enforcement mechanism), with Rashbaum, supra note
22, at 25 (explaining enforcement deªciencies in HIPAA, including lack of a private right
of action and difªculties in reaching offshore contractors).
171 See Hahn & Layne-Farrar, supra note 36, at 118–20.
172 See id.
173 See id.
174 See, e.g., id. (explaining how “the move in outsourcing . . . becomes exceedingly
difªcult under the Directive’s restrictions on transborder transmissions” because it is overrestrictive in relation to current business needs).
175 See id.
176 See Gilbert, supra note 36, at 559 (explaining that other countries have adopted privacy laws similar to the directive adopted by the European Union).
177 See id. (explaining the minimum principles of data privacy set forth in the E.U. Directive).
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the Federal Trade Commission.178 Finally, it would help to eliminate
differing protections and deªciencies across sectors.179 For example,
HIPAA has an enforcement deªciency because it does not provide a
private right of action, whereas GLBA, while it does not have a similar
enforcement deªciency, has a choice deªciency because it does not include an opt-out provision for overseas BPO.180
One of the considerations in drafting such generalized legislation
should be a utilitarian cost-beneªt balancing to create default rules
protective enough to guard data privacy.181 This calculus should not,
however, be so restrictive that it kills the proverbial goose that lays the
golden eggs by exacting such high costs that overseas BPO loses most
of its business efªciencies.182 For example, compliance with HIPAA in
its ªrst year cost an estimated $3 billion. Crafting equally restrictive
provisions across the entire spectrum of overseas BPO would, by extension, potentially be prohibitively costly.183 Such analysis is important because broad-based privacy legislation has often been criticized
on the grounds that it would not be cost justiªed.184 Nevertheless, although it is broader than a sectoral approach to regulating overseas
BPO, a law of general applicability would still be narrow because it
would only apply with a speciªc type of outsourcing transaction, BPO,
and it would only apply to that transaction when it occurs in an overseas relationship.185 Thus, cost-beneªt analysis is not completely incompatible with a law of general applicability for overseas BPO.186
178 See id. at 557–58 (listing the principles of data privacy set forth in the E.U. Directive); Hahn & Layne-Farrar, supra note 36, at 91–94 (listing the principles of data privacy
set forth by the FTC).
179 See infra note 180 and accompanying text.
180 See McMahon, supra note 38, at 637 (explaining that consumers do not have the
normal opt-out choice associated with the GLBA under instances where information is
shared to perform services for the ªnancial institution); Rashbaum, supra note 22, at 25
(explaining enforcement deªciencies within HIPAA).
181 See infra note 182 and accompanying text.
182 See Hahn & Layne-Farrar, supra note 36, at 158–59 (explaining the dangers of
broadly worded privacy legislation because of the possibility that such legislation could
create prohibitive costs).
183 See McMahon, supra note 38, at 650.
184 See Hahn & Layne-Farrar, supra note 36, at 158–59.
185 Cf. Hahn & Layne-Farrar, supra note 36, at 159 (explaining that privacy legislation
of more narrow concern, focused on particular issues, would be more likely to be costbeneªt justiªed).
186 See id.
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Building Fortress India
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Of particular importance would be enforcement provisions.187
Creating a general right of action for data privacy violations would
cure already existing deªciencies in that regard.188 Further, given the
difªculty in ªnding timely redress in Indian courts, such a provision
would assure that those ªnding their rights violated would always have
some form of expeditious recourse.189
Also worth careful scrutiny are principles detailing notice and
choice.190 Notice is important because it increases consumer knowledge as to what their privacy rights are.191 At the same time, too much
knowledge could be a bad thing in the context of privacy.192 Just to
comply with the GLBA, around 40,000 ªnancial institutions were
compelled to mail 2.5 billion privacy notices between the Act’s implementation and June, 2001.193
Choice should be limited on a careful basis.194 Default rules allowing for opt-out choice mechanisms should be mandated to guarantee privacy because a general rule of opt-in choice would be far too
costly to BPO relationships.195 Such a general rule would not necessarily preclude speciªc government action to protect particularly sensitive data or sectors with opt-in mechanisms; it would only preclude
their costly widespread use.196
Some form of overseas BPO legislation would also signal to India
that U.S. regulation still focuses on privacy issues rather than employment concerns.197 With a slew of legislative proposals aimed at restricting overseas BPO, India has, justiªably, become extremely suspicious
that U.S. efforts are not really aimed at privacy but, rather, at jobs.198
These suspicions were only bolstered by much of the anti-outsourcing
187 See, e.g., Rashbaum, supra note 22, at 25 (pointing out the lack of a private right of
action in HIPAA which severely weakens enforcement in the healthcare sector).
188 See Gilbert, supra note 36, at 557–58 (detailing the numerous enforcement provisions present in the E.U. directive); Rashbaum, supra note 22, at 25 (explaining the lack of
any individual right of action for HIPAA violations in medical overseas BPO).
189 See Mookherjee, supra note 121, at 125.
190 See Hahn & Layne-Farrar, supra note 36, at 91–92, 159–60.
191 See id.
192 See id. at 130.
193 See id.
194 See id. at 159–60.
195 See id.
196 See Hahn & Layne-Farrar, supra note 36, at 159–60.
197 See Engardio, supra note 1, at 28 (discussing Indian concerns that U.S. privacy legislation is not really aimed at privacy concerns but, rather, at stopping the outºow of U.S.
jobs); Anti-BPO Steps: What to Worry About, supra note 100.
198 See Engardio, supra note 1, at 28.
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of jobs rhetoric during the 2004 presidential election.199 Passing legislation targeted speciªcally at the principles of privacy protection in overseas BPO would help to refocus efforts away from job loss and back on
privacy.200 In turn, such a refocusing could potentially help improve
India’s conªdence in the sincerity of U.S. motives.201
Finally, beyond a utilitarian perspective, generalized legislation
regarding overseas BPO would help to protect data privacy based on
the notion that individuals have a right to such protection.202 It is easy
to collapse the debate surrounding overseas BPO regulation into a
tidy economic cost-beneªt box because the costs of compliance are
easy to quantify.203 Further, it is often difªcult to quantify the beneªts
of privacy protections because they are not amenable to numerical
valuation.204 Nevertheless, the ease of calculating cost with the
difªculty of calculating beneªt can lead to under-protection if a utilitarian philosophy dominates.205 Moreover, a utilitarian approach may
not be reconcilable with certain U.S. legislation either.206 For example, the preamble to HIPAA expressly recognizes that medical privacy
is a “fundamental right” different from “ordinary economic
good[s].”207
The central problem with restricting discussion of overseas BPO
regulation to only utilitarian concerns is that such restriction serves to
commodify privacy.208 Yet, most would probably agree that personal
privacy is more than a mere economic good.209 Loss of privacy is seen
as a loss of personal autonomy, an affront to human dignity, or even
an intrusion into one’s core-self.210 This theory would support a generalized law of overseas BPO to govern relationships such as the U.S.Indian BPO relationship because privacy constitutes more than a
mere economic commodity that is not easily valued by utilitarian costbeneªt balancing and demands such protections despite high costs.211
199 See Duttagupta, supra note 148.
200 See Engardio, supra note 1, at 28.
201 See Engardio, supra note 1, at 28.
202 See generally Nehf, supra note 152.
203 See id. at 29.
204 See id. at 55.
205 See id. at 2–3.
206 See id. at 53.
207 See id. (quoting Standards for Privacy of Individually Identiªable Health Information, 65 Fed. Reg. 82,462, 82,464 (Dec. 28, 2000) (codiªed at 45 C.F.R. pts. 160, 164)).
208 See Nehf, supra note 152, at 30.
209 See id.
210 See id.
211 See id.
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267
Conclusion
In order to improve the security of personal privacy in the U.S.Indian BPO relationship, the United States ought to consider adoption of a general law of applicability, deªning data privacy standards
for these types of relationships. Although there have not yet been any
high-proªle instances of privacy breakdowns in the context of the
U.S.-Indian relationship, deªciencies currently exist in protections
that should be addressed.
In the two primary sectors where overseas BPO relationships occur, ªnancial services and medical services, deªciencies exist that could
compromise personal privacy. In the ªnancial services sector, primarily
governed by the GLBA, these include the lack of opt-out mechanisms
for overseas BPO. In the medical services sector, lack of an individual
private right of action undermines the principle of enforcement and
furthers the possibility of privacy breakdowns. Although not a complete
list, the deªciencies in these two sectors highlight the primary structural problem in U.S. regulation. These inadequacies span the major
sectors where overseas BPO occurs, and they vary by sector. Therefore,
the only means of correcting them under the current approach would
be the inefªcient and time-consuming process of crafting narrow legislation to deal with each sector’s own problems.
U.S. policymakers ought to consider creating a law of general applicability governing oversees BPO transactions in order to rectify
many of these shortcomings and provide a more consistent data privacy protection policy. Such a law would provide a set of governing
principles applicable to all sectors of overseas BPO and set a ºoor of
protections for data privacy.
Of particular importance for such a policy would be the principles of enforcement, notice, and choice. Creation of a general right of
action for those harmed by privacy violations would cure any such
deªciencies in sectoral legislation. Emphasizing consumer notice provisions would be a cost-efªcient manner to promote better data privacy protections. Finally, creating a default opt-out choice mechanism
would ensure that all consumers have the option to refrain from having their personal information sent overseas while not creating the
excessive cost burden of an opt-in mechanism. It is important to note
that all of these provisions should be structured as minimum protections that can be superseded, as need requires, by more traditional
sectoral legislation.
The primary beneªt of such generalized legislation would be a
coherent data privacy framework for overseas BPO relationships. Such
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a framework would ensure a minimum set of protections across sectoral lines and eliminate the loopholes that currently exist in the traditional patchwork of sectoral legislation. Further, such a framework
would serve to clarify U.S. privacy expectations to Indian businesses.
Finally, broad legislation of this sort would still remain cost-beneªt
justiªed because it would remain narrow enough, aimed only at a particular type of BPO relationship, to avoid traditional cost criticisms of
exceedingly broad privacy legislation.
Finally, generalized overseas BPO legislation should be introduced
because privacy is more than a mere economic commodity and demands more protections than the current utilitarian balancing affords.
Allowing business concerns over cost to dominate discussion of privacy
in the U.S.-Indian BPO relationship skews analysis in favor of business
who can more easily quantify a numerical value for its position. This
ignores important personal value placed on one’s own privacy and
leads to a regime of under-protection. Therefore, in order to protect
privacy in the U.S.-Indian BPO relationship, legislation should establish
a minimum level of protection to ensure that privacy is not commodiªed as an economic good and, therefore, is not under-protected
as such a good.
WE ARE THE WORLD?
JUSTIFYING THE U.S. SUPREME COURT’S
USE OF CONTEMPORARY FOREIGN LEGAL
PRACTICE IN ATKINS, LAWRENCE,
AND ROPER
Andrew R. Dennington*
Abstract: Since 2002, the U.S. Supreme Court has consulted contemporary foreign legal judgments to help interpret, and dramatically expand,
the substantive scope of the Bill of Rights in three landmark cases. It has
not, however, explained when and why contemporary foreign legal materials are relevant to a principled, objective mode of constitutional interpretation. This Note represents an attempt to do so. It postulates two
rationales that could retrospectively justify the Court’s methodology in
Atkins v. Virginia (2002), Lawrence v. Texas (2003), and Roper v. Simmons
(2005). One is grounded in a theory of Anglo-American common law,
the other rests on jus cogens and customary international law. This Note
then compares the two and concludes that the jus cogens theory could
best address critics’ concerns that the use of foreign law will undermine
U.S. sovereignty, reduce civil liberties in this country, and vastly increase
judicial discretion.
Introduction
Since 2002, three landmark U.S. Supreme Court decisions—Atkins
v. Virginia,1 Lawrence v. Texas,2 and Roper v. Simmons 3—have collectively
signaled a decisive shift in the Court’s position regarding the relevance
* Andrew R. Dennington is Managing Editor of the Boston College International & Comparative Law Review. The author would like to thank Professors Charles Baron, Gregory
Kalscheur, S.J., and Mark Spiegel for their advice and encouragement in connection with
this Note.
This Note was also presented at the Yale Journal of International Law’s Fourth Annual
Young Scholars Conference on March 4, 2006 at the Yale Law School. Portions of it also
appeared at Andrew R. Dennington, Hearing Aid: What Democrats Should Ask John Roberts,
New Republic Online, Aug. 17, 2005, http://www.tnr.com/doc.mhtml?i=w050815&s=
dennington081705.
1 536 U.S. 304 (2002).
2 539 U.S. 558 (2003).
3 543 U.S. 551 (2005).
269
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of contemporary foreign legal practice to domestic constitutional interpretation.4 In each of these cases, the Court used the legal judgments and experiences of European countries and the “world community” as aides in interpreting the substantive scope of the Eighth
Amendment’s prohibition against “cruel and unusual punishments”5
and the Fourteenth Amendment’s substantive due process clause.6 This
is remarkable given that, as recently as 1997, a majority of the Court
clearly rejected this methodology as “inappropriate to the task of interpreting a constitution.”7
Atkins, Lawrence, and Roper have ignited a political controversy in
which conservatives denounce the practice as a threat to national sovereignty,8 and liberals welcome a multilateral dialogue among the
world’s jurists about domestic human rights law.9 Congressional Re4 This Note focuses exclusively on the application of contemporary foreign legal materials to purely domestic constitutional questions, particularly those involving civil rights
and civil liberties. It does not address the use of foreign law to interpret treaties or guide
choice of law in cases involving foreign parties. Those questions pose fewer theoretical
difªculties than the problems analyzed in this Note. See Justice Antonin Scalia, Foreign
Legal Authority in the Federal Courts, Keynote Address at the 98th Annual Meeting of The
American Society of International Law (Apr. 2, 2004), in 98 Am. Soc’y Int’l L. Proc. 305,
305 (2004). Further, this Note does not concern itself with the use of historical foreign legal
materials in domestic constitutional interpretation. Those materials, particularly English
texts, are more obviously relevant to constitutional interpretation than contemporary foreign
materials because they help illuminate the original meaning of the U.S. Constitution’s now
archaic words and phrases. See id. at 306.
I use the term “foreign legal practice” broadly to refer to the entire range of foreign
materials that the Court consults when interpreting the U.S. Constitution. Liberals tend to
think that Justices on the Court have merely been engaging in a friendly dialogue of sorts
with their European counterparts, and this opinion rests upon the misconception that the
Justices only cite to foreign judge-made rules, such as judgments and judicial opinions.
On the contrary, the Court also consults contemporary foreign statutes, parliamentary
reports, rules of evidence, and even police practices, most of which are not judge-made
rules. E.g. Roper, 543 U.S. at 577–78 (discussion of British parliamentary reports and statutes); Lawrence, 539 U.S. at 572–73 (discussion of British parliamentary report and statute); New York v. Quarles, 467 U.S. 649, 673 n.6 (1984) (O’Connor, J., concurring) (discussion of British rules of evidence); Miranda v. Arizona, 384 U.S. 436, 488–89 (1966)
(discussion of British, Indian, and Ceylon police practice).
5 U.S. Const. amend. VIII; see Roper, 543 U.S. at 575–78; Atkins, 536 U.S. at 316 n.21.
6 U.S. Const. amend. XIV, § 1; see Lawrence, 539 U.S. at 573, 576–77.
7 Printz v. United States, 521 U.S. 898, 921 n.11 (1997).
8 See generally, e.g., Robert H. Bork, Whose Constitution Is It, Anyway? Supreme Court Justices
Are Importing Foreign Law, Signaling a Historic and Deplorable Shift, Nat’l Rev., Dec. 8, 2003,
at 37.
9 See generally, e.g., Justice Ruth Bader Ginsburg, “A Decent Respect to the Opinions of
[Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication,
Keynote Address at the 99th Annual Meeting of The American Society of International
Law (Apr. 1, 2005), in 99 Am. Soc’y Int’l L. Proc. 351 (2005)
2006]
We Are the World?
271
publicans, upset with the Court’s use of European legal materials to
help expand privacy rights in Lawrence and restrict the death penalty
in Atkins and Roper, have responded by introducing legislation to
sharply restrict the Court’s ability to cite foreign law.10 Judicial conservatives, led by Justice Antonin Scalia, correctly point out that the
Court has yet to clearly explain when and why contemporary foreign
legal materials are relevant to interpreting the U.S. Constitution.11 In
particular, Justice Anthony Kennedy’s sweeping, vague opinions in
Lawrence and Roper have failed to do so.12 As Justice Scalia notes, because the Court fails to tell us when foreign law is relevant and when it
is not, there is no limiting principle that would prevent a future Court
from one day citing contemporary foreign legal practices to restrict,
rather than expand, domestic civil rights and civil liberties, particularly regarding free speech, criminal procedure, and abortion.13
The best way liberals can answer Justice Scalia is by articulating a
clear theoretical rationale that explains when and why contemporary
foreign legal materials are relevant to a principled, objective mode of
constitutional interpretation. This Note attempts to do that. Part I
provides a brief historical survey of the Court’s shifting attitudes towards the relevance of contemporary foreign legal practice in modern constitutional law. This background demonstrates that the Court’s
use of foreign law is not the radically new phenomenon many conservatives believe it to be.
Part II begins by outlining Justice Scalia’s legitimate concerns regarding the effect that Atkins, Lawrence, and Roper could have on national sovereignty and the rule of law. Part II continues by describing
two theoretical rationales that might justify and limit the relevance of
contemporary foreign legal practice to domestic constitutional interpretation and applies each to Atkins, Lawrence, and Roper. The ªrst theory, advanced by Justice Stephen Breyer, is grounded in English com10 H.R. Res. 97, 109th Cong. (2005); S. Res. 92, 109th Cong. (2005). These bills have attracted considerable support. The House legislation gathered 83 co-sponsors in the ªrst session of the 109th Congress. See Library of Congress THOMAS, http://frwebgate.access.
gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:hr97ih.txt.pdf (last visited
Apr. 11, 2006).
11 A Conversation Between U.S. Supreme Court Justices: The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation Between Justice Antonin Scalia & Justice Stephen
Breyer, 3 Int’l J. Const. Law 519, 524–25 (Norman Dorsen ed. 2005) (comments of Justice
Scalia) [hereinafter Scalia-Breyer Discussion].
12 See Jeffrey Rosen, Juvenile Logic, New Republic, Mar. 21, 2005, at 11, 11 (describing
Justice Kennedy’s reasoning regarding the relevance of foreign law as “analytically sloppy
and glib”).
13 Roper v. Simmons, 543 U.S. 551, 624–26 (2005) (Scalia, J., dissenting).
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mon law. It suggests that, because some U.S. constitutional rules are
codiªcations of English common law rules, U.S. courts may consult as
informative, but non-binding, the legal experiences of British and former Commonwealth jurisdictions interpreting those same common law
rules. A second theory, which the Court has never explicitly adopted, is
grounded in customary international human rights law. It would justify
the Court’s use of foreign legal experience to determine whether a jus
cogens norm applicable to the case exists and if it does, interpret the
U.S. Constitution so as to reºect international standards.
Finally, Part III compares these two rationales and concludes that
the customary international human rights law rationale provides a
more reliable foundation for the future use of foreign law in domestic
constitutional interpretation. By limiting its citation of foreign law in
constitutional cases to a very limited range of cases involving empirically identiªable jus cogens norms, the Court could mollify some concerns that “activist judges” will use foreign law subjectively, expanding
judicial discretion, and ultimately eroding U.S. cultural and legal sovereignty.
I. History and Background
While conservative critics of the Court’s recent use of contemporary foreign legal materials in domestic constitutional interpretation
describe this as an “alarming new trend,”14 this is, in fact, not a novel
phenomenon.15 Several well-known twentieth century decisions consulted contemporary foreign practices and judgments in helping to
determine the substantive content of domestic constitutional rules.16
14 Appropriate Role of Foreign Judgments in the Interpretation of American Law: Hearing on H.
Res. 568 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 108th
Cong. 1 (2004) (statement of Rep. Steve Chabot) [hereinafter Appropriate Role of Foreign
Judgments].
15 Infra notes 17–40 and accompanying text. “[T]he reliance on foreign or international law that we have seen in the recent cases is, in my view, consistent with our earliest
legal traditions.” Appropriate Role of Foreign Judgments, supra note 14, at 14 (statement of
Vicki Jackson, Professor of Law, Georgetown Law Center).
16 See infra notes 17–40 and accompanying text. It is still fair to say, however, that the
Court does not consult foreign or international law in domestic constitutional interpretation nearly as often as its overseas counterparts. See Sarah K. Harding, Comparative Reasoning and Judicial Review, 28 Yale J. Int’l L. 409, 412 (2003). Harding contrasts the U.S. Supreme Court with the Supreme Court of Canada, which “consistently looks to the law of
other nations for guidance and inspiration.” Id. at 411.
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A. 1937–1989
In 1937, Justice Benjamin N. Cardozo consulted foreign legal
practices in Palko v. Connecticut ,17 which considered whether the Fifth
Amendment’s Double Jeopardy Clause should be made applicable to
the States through the Fourteenth Amendment.18 Cardozo reasoned
that immunity from self-incrimination and double jeopardy protection were not rights sufªciently fundamental to be protected by the
Fourteenth Amendment because they were not “of the very essence of
a scheme of ordered liberty . . . [and] justice . . . would not perish” if
they were abolished.19 To support his conclusion, Cardozo pointed to
contemporary foreign experience: “Compulsory self-incrimination is
part of the established procedure in the law of Continental Europe.”20
In 1958, the Court extended this methodology to Eighth Amendment jurisprudence in Trop v. Dulles,21 which held that the Court
should draw its meaning of the phrase “cruel and unusual punishments” from “the evolving standards of decency that mark the progress
of a maturing society.”22 This opaque language suggested that this “maturing society” could be either global or American.23 The Court held
that the Eighth Amendment prohibits the penalty of forfeiture of citizenship because, inter alia, “[t]he civilized nations of the world are in
virtual unanimity that statelessness is not to be imposed as punishment
for crime.”24 In subsequent cases, the Court again pointed to foreign
legal practice as cognizable evidence of evolving standards of decency
regarding application of the death penalty to defendants convicted of
felony-murder25 and rape of an adult woman.26
A survey of contemporary foreign legal practices also ªgured
prominently in Miranda v. Arizona, 27 which famously held that the Fifth
17 302 U.S. 319 (1937).
18 Id. at 322.
19 Id. at 325, 326. This holding, ªrst announced in Twining v. New Jersey, 211 U.S. 78,
106, 111, 112 (1908), has since been overruled by Benton v. Maryland, 395 U.S. 784, 796
(1969).
20 Palko, 302 U.S. at 326 n.3.
21 356 U.S. 86 (1958) (plurality opinion).
22 Id. at 101.
23 Joan L. Larsen, Importing Constitutional Norms from a “Wider Civilization”: Lawrence
and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L.J. 1283, 1293 (2004); see Ernest A. Young, Foreign Law and the Denominator Problem, 119 Harv. L. Rev. 148, 148–49 (2005).
24 Trop, 356 U.S. at 102.
25 Enmund v. Florida, 458 U.S. 782, 796 n.22 (1982).
26 Coker v. Georgia, 433 U.S. 584, 596 n.10, 600 (1977).
27 384 U.S. 436 (1966).
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Amendment prohibited admission of statements obtained from defendants during incommunicado interrogation without full prior warning
of their constitutional rights.28 After announcing the new constitutional
rule,29 Chief Justice Earl Warren addressed the dissenters’ concern that
“society’s need for interrogation outweighs the privilege.”30 Surveying
the current state of police interrogation practice in England, Scotland,
India, and Ceylon, the Chief Justice concluded that “[t]he experience
in some other countries also suggests that the danger to law enforcement in curbs on interrogation is overplayed.”31 Warren then asserted,
referring to those former Commonwealth jurisdictions: “Moreover, it is
consistent with our legal system that we give at least as much protection
to these rights as is given in the jurisdictions described.”32 This intriguing sentence implies that foreign legal standards somehow compelled
the Court to interpret the Fifth Amendment in the manner that it did.33
The Burger Court then referred to foreign legal practice in justifying its subsequent curtailment of constitutional protections for
criminal defendants.34 New York v. Quarles 35 signiªcantly restricted the
scope of Miranda’s exclusionary rule by holding that, in a situation
where a police ofªcer asks a suspect questions reasonably prompted
by a concern for public safety, there exists an exception to the requirement that police ofªcers give that suspect Miranda warnings.36 In
a concurring opinion, Justice Sandra Day O’Connor rejected this
“public safety” exception37 but reached the same judgment as the majority by reasoning that Miranda’s exclusionary rule did not mandate
the suppression of nontestimonial evidence, in this case, the defendant’s gun.38 O’Connor argued that, “[t]he learning of these countries [England, India, Scotland, and Ceylon] was important to development of the initial Miranda rule. It therefore should be of equal
28 Id. at 478–79.
29 Id. The long-running controversy over whether Miranda announced a constitutional
rule as opposed to a judge-made rule of evidence was ªnally settled in Dickerson v. United
States, 530 U.S. 428, 438 (2000). Holding that Miranda was in fact interpreting what the
Fifth Amendment required, Dickerson noted that Miranda was replete with language suggesting so. Id. at 439.
30 Miranda, 384 U.S. at 479.
31 Id. at 486.
32 Id. at 489.
33 See id.
34 See New York v. Quarles, 467 U.S. 649, 673–74 (1984) (O’Connor, J., concurring).
35 467 U.S. 649 (1984).
36 Id. at 655–56.
37 Id. at 660 (O’Connor, J., concurring).
38 Id. at 673–74.
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importance in establishing the scope of the Miranda exclusionary rule
today.”39 Justice O’Connor then wrote: “Interestingly, the trend in
these other countries is to admit the improperly obtained statements
themselves, if nontestimonial evidence later corroborates, in whole or
in part, the admission.”40
B. 1989–2002
In the late 1980s, two events set the stage for a conºict in the
Court regarding the appropriate role of contemporary foreign legal
practice in domestic constitutional interpretation. First, as most industrialized democracies sharply restricted or abolished capital punishment, death row inmates increasingly asked the Court to look abroad in
considering whether their sentences offended evolving standards of
decency.41 Second, Justice Scalia joined the Court.42 Justice Scalia
quickly established himself as a vociferous and inºuential critic of the
use of contemporary foreign legal practice in domestic constitutional
interpretation.43
In 1989, Justice Scalia authored the majority opinion in Stanford
v. Kentucky, 44 which held that the execution of a defendant convicted
of a crime at sixteen or seventeen years of age did not violate evolving
standards of decency and was therefore constitutional.45 Justice Scalia
dismissed evidence that Western European legal systems would not
authorize juvenile execution as irrelevant dicta.46 He countered that,
“American conceptions of decency . . . are dispositive” in Eighth
Amendment jurisprudence.47 This represented a signiªcant departure from precedent.48 In a similar juvenile death penalty case decided only a year earlier, the Court had mentioned European legal
practices as cognizable evidence of evolving standards of decency.49
39 Id. at 672.
40 New York v. Quarles, 467 U.S. 649, 673 n.6 (1984) (O’Connor, J., concurring).
41 E.g., Stanford v. Kentucky, 492 U.S. 361, 389–90 (1989) (Brennan, J., dissenting);
Thompson v. Oklahoma, 487 U.S. 815, 830–31 (1988).
42 Justice Scalia took his seat on September 26, 1986. Supreme Court of the U.S.,
The Justices of the Supreme Court, at 1, available at http://www.supremecourtus.gov/
about/biographiescurrent.pdf (last visited Apr. 11, 2006).
43 See Stanford, 492 U.S. at 369 n.1 (1989).
44 492 U.S. 361 (1989).
45 Id. at 380.
46 Id. at 370 n.1.
47 Id.
48 See Thompson v. Oklahoma, 487 U.S. 815, 830–31 (1988).
49 Id. “The conclusion that it would offend civilized standards of decency to execute a
person who was less than 16 years old at the time of his or her offense is consistent with the
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In death penalty cases in 1999 and 2002, Justice Scalia’s views
again prevailed.50 In Knight v. Florida,51 the Court refused to consider
whether the execution of an inmate who had sat on death row for
nearly twenty years constituted “cruel and unusual punishment.”52 To
prove that there was an international consensus against the practice,
the petitioner in Knight pointed to recent decisions from the U.K.
Privy Council and European Court of Human Rights, both holding
that execution following prolonged delay and multiple execution
warrants could rise to the level of torture and inhumane treatment.53
While Justice Breyer found the reasoning from these and similar foreign decisions from Zimbabwe and India highly informative of what
constitutes “cruel and unusual punishment,”54 Justice Clarence Thomas rejected their relevance.55 Two years later, the Court again denied the relevance of foreign law in a similar death row delay case.56
In 1995, Justice Scalia authored his second majority opinion that
held that contemporary foreign legal experience is irrelevant in interpreting the U.S. Constitution.57 In Printz v. United States, 58 which held
that a federal gun control statute unconstitutionally imposed obligations on state ofªcers to execute federal laws, Justice Scalia rebuked
Justice Breyer for discussing the beneªts that the European Union realviews that have been expressed by respected professional organizations, by other nations
that share our Anglo-American heritage, and by the leading members of the Western
European community.” Id.
50 See Foster v. Florida, 123 S. Ct. 470, 470–71 (2002) (Thomas, J., concurring in denial
of cert.); Knight v. Florida, 120 S. Ct. 459, 459 (1999) (Thomas, J., concurring in denial of
cert.).
51 120 S. Ct. 459 (1999) (denial of cert.).
52 Id. at 459, 461 (Breyer, J., dissenting from denial of cert.).
53 Knight, 120 S. Ct. at 462 (Breyer, J., dissenting from denial of cert.) (citing Pratt v.
Attorney-General for Jamaica, [1994] 2 A.C. 1, 29, 33 (P.C. 1993) and Soering v. United
Kingdom, 11 Eur. Ct. H.R. Rep. 439, 478, ¶ 111 (1989)). Pratt unanimously held that the
execution of two inmates who had been on death row for fourteen years and who had
been read execution warrants on three separate occasions would constitute “torture or . . .
inhuman and degrading punishment” in violation of Section 17(1) of the Jamaican Constitution. See Pratt, [1994] 2 A.C. at 29, 33. Soering held that extradition from Europe to Virginia of a man charged with capital murder would violate Article 3 of the European Human Rights Convention Charter because Virginia’s protracted delays in carrying out death
sentences, which averaged six to eight years, constituted inhumane and degrading punishment. Soering, 11 Eur. Ct. H.R. Rep. at 478, ¶ 111.
54 Knight, 120 S. Ct. at 462–64 (Breyer, J., dissenting from denial of cert.).
55 Id. at 459 (Thomas, J., concurring in denial of cert.).
56 Foster v. Florida, 123 S. Ct. 470, 470 n.* (2002) (Thomas, J., concurring in denial of
cert.).
57 Printz v. United States, 521 U.S. 898, 921 n.11 (1997).
58 521 U.S. 898 (1997).
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ized from commandeering: “We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of
course quite relevant to the task of writing one . . . . The fact is that our
federalism is not Europe’s.”59
C. 2002–2005
Three cases since 2002 have signaled a decisive shift away from Justice Scalia’s position. Atkins, Lawrence, and Roper all used contemporary
foreign legal experience as interpretive aides in major decisions that
signiªcantly expanded the substantive scope of the Eighth and Fourteenth Amendments’ protections for criminal defendants.60 Each decision drew a successively more deªant dissent from Justice Scalia.61
Atkins held that the execution of mentally retarded defendants is
unconstitutionally “cruel and unusual punishment,” ªnding that a “national consensus” had emerged against the practice since the Court last
examined the issue thirteen years ago.62 Justice John Paul Stevens then
wrote in a passing footnote that “the world community” also overwhelmingly disapproved of the execution of mentally retarded offenders.63 He stated that “[a]lthough these factors are by no means dispositive, their consistency with the legislative evidence lends further
support to our conclusion that there is a consensus among those who
have addressed the issue.”64
In his dissenting opinion, Justice Scalia skewered this discussion
of international law:
But the Prize for the Court’s Most Feeble Effort to fabricate
“national consensus” must go to its appeal (deservedly relegated to a footnote) to the views of . . . members of the socalled “world community,” . . . . [I]rrelevant are the practices
59 Id. at 921 n.11. Breyer defended himself: “Of course, we are interpreting our own
Constitution, not those of other nations, and there may be relevant political and structural
differences between their system and our own. But their experience may nonetheless cast
an empirical light on the consequences of different solutions to a common legal problem
. . . .” Id. at 977 (Breyer, J., dissenting) (citations omitted).
60 Roper v. Simmons, 543 U.S. 551, 575-78 (2005); Lawrence v. Texas, 539 U.S. 558,
573, 576–77 (2003); Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002).
61 Roper, 543 U.S. at 622–28 (Scalia, J., dissenting); Lawrence, 539 U.S. at 598 (Scalia, J.,
dissenting); Atkins, 536 U.S. at 347–48 (Scalia, J., dissenting).
62 536 U.S. at 316, 321.
63 Id. at 316 n.21.
64 Id.
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of the “world community,” whose notions of justice are (thankfully) not always those of our people.65
One year later, Lawrence held that the liberty and privacy interests
protected by the Fourteenth Amendment’s substantive due process
clause extended to homosexuals engaging in private, consensual, intimate conduct,66 overruling its previous decision in Bowers v. Hardwick.67 Justice Kennedy’s majority opinion began by attacking Bowers’s
premise that “[d]ecisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of
Western civilization.”68 In response, Justice Kennedy noted that scores
of U.S. states had either abolished or ceased to enforce their criminal
prohibitions on private consensual same-sex sodomy, and that:
Of even more importance, almost ªve years before Bowers was
decided the European Court of Human Rights considered a
case with parallels to Bowers and to today’s case. . . . The court
held that the laws proscribing the [homosexual] conduct were
invalid under the European Convention on Human Rights.
Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981) ¶ 52. Authoritative in all countries that are members of the Council of
Europe (21 nations then, 45 nations now), the decision is at
odds with the premise in Bowers that the claim put forward was
insubstantial in our Western civilization.69
Justice Kennedy’s use of Dudgeon was not narrowly limited to
overruling Bowers’s historical assumptions but also its essential reasoning and “central holding.”70 Referring to the experience of Western
European nations, he argued that “[t]he right the petitioners seek in
this case has been accepted as an integral part of human freedom in
many other countries. There has been no showing that in this country
the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.”71 Lawrence made no mention of the
reasoning behind Dudgeon, only its result.72 The mere existence of this
European judgment, its acceptance among many nations, and the fac65 Atkins, 536 U.S. at 347–48 (Scalia, J., dissenting) (citations omitted).
66 Lawrence, 539 U.S. at 578.
67 Bowers v. Hardwick, 478 U.S. 186 (1986).
68 Lawrence, 539 U.S. at 571 (quoting Bowers, 478 U.S. at 196).
69 Id. at 573.
70 See id. at 575, 576–77.
71 Id. at 577.
72 Larsen, supra note 23, at 1296–97.
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tual similarities between it and Lawrence, appeared to make it a legitimate aide in interpreting the proper scope of the substantive due
process clause.73
Justice Scalia furiously dissented from every aspect of Lawrence,
including the relevance of contemporary European legal practice to
interpreting the substantive due process clause:
Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal
sanctions on certain behavior. Much less do they spring into
existence, as the Court seems to believe, because foreign nations decriminalize conduct. . . . The Court’s discussion of
these foreign views (ignoring, of course, the many countries
that have retained criminal prohibitions on sodomy) is
therefore meaningless dicta. Dangerous dicta, however, since
“this Court . . . should not impose foreign moods, fads, or
fashions on Americans.”74
In 2005, Justice Kennedy’s majority opinion in Roper represented
a further extension of this methodology and a direct challenge to Justice Scalia.75 Roper overruled Justice Scalia’s decision in Stanford and
held that the death penalty cannot be imposed on offenders who
were under eighteen years of age at the time of their capital crimes,
citing a “national consensus” that had emerged since 1989.76 While
not essential to his factual ªnding that this national consensus existed
and therefore technically dicta, Justice Kennedy again pointed to foreign, particularly British, law and international materials, including
treaties that the U.S. Senate has not ratiªed, as “instructive for [the
Court’s] interpretation of the Eighth Amendment.”77 Comparison to
foreign jurisdictions demonstrated “the stark reality that the United
States is the only country in the world that continues to give ofªcial
sanction to the juvenile death penalty.”78 Justice Kennedy then argued
that “[t]he opinion of the world community, while not controlling our
73 Id.
74 Lawrence, 539 U.S. at 598 (Scalia, J., dissenting) (citing Foster v. Florida, 123 S. Ct.
470, 470 n. (2002) (Thomas, J., concurring in denial of cert.)).
75 Roper v. Simmons, 543 U.S. 551, 575–78 (2005).
76 Id. at 564–67.
77 Id. at 575–78.
78 Id. at 575. Scalia rejects the notion that foreign views can be relevant to
“conªrming” a national consensus. Id. at 627 n.9 (Scalia, J., dissenting). He writes that
“[e]ither America’s principles are its own, or they follow the world; one cannot have it
both ways.” Id.
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outcome, does provide respected and signiªcant conªrmation for our
own conclusions.”79 Anticipating Justice Scalia’s dissent, Justice Kennedy wrote: “[I]t does not lessen our ªdelity to the Constitution or
our pride in its origins to acknowledge that the express afªrmation of
certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our heritage of
freedom.”80
D. The Current State of the Law
The Court’s vacillations regarding the relevance of contemporary
foreign legal practices in domestic constitutional interpretation have
produced a confusing jumble of precedent, pro and con.81 At bare
minimum, Atkins and Roper clearly hold that foreign experience is instructive in determining the “evolving standards of decency” that guide
Eighth Amendment jurisprudence.82 In substantive due process analysis, Lawrence and Palko both can be seen as standing for the proposition
that contemporary foreign legal practices and judgments may also inform the Court’s determination of which rights are sufªciently fundamental to be protected by the Fourteenth Amendment.83 Miranda and
Quarles are also still good law, and both suggest that it is proper to consider the experience of other members of Anglo-American common
law community in deªning the substantive scope of the Fifth Amendment’s Self-Incrimination Clause.84 Printz is the only one of Justice
Scalia’s majority opinions that clearly rejects the use of foreign law in
interpreting the U.S. Constitution that is still good law.85 One could
infer from this that the Court is willing to consider contemporary foreign legal experience in interpreting the scope of the Constitution’s
protections of individual rights but not cases concerning separation of
powers and federalism.86 That may now be the black letter law in this
area, but it is unclear whether the Court itself intended such a result.
79 Roper, 543 U.S. at 578.
80 Id.
81 Compare Roper, 543 U.S. at 578, with Printz v. United States, 521 U.S. 898, 921 n.11
(1997).
82 Roper, 543 U.S. at 575-78; Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002).
83 See Lawrence v. Texas, 539 U.S. 558, 573, 576–77 (2003); Palko v. Connecticut, 302
U.S. 319, at 326 n.3 (1937).
84 See New York v. Quarles, 467 U.S. 649, 673–74 (1984) (O’Connor, J., concurring);
Miranda v. Arizona, 384 U.S. 436, 488–89 (1966).
85 Printz, 521 U.S. at 921 n.11.
86 See supra notes 81–85 and accompanying text.
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That is why it is necessary for the Court to re-consider the theoretical
rationale for this methodology.
II. Discussion
A. Justice Scalia’s View: Foreign Materials Can Never Be Relevant to
Domestic Constitutional Interpretation
As an originalist, Justice Scalia believes that “modern foreign legal
materials can never be relevant to an interpretation of—to the meaning
of—the U.S. Constitution.”87 Old foreign legal materials, particularly
from England, may be relevant to understanding the original intent of
the archaic words and phrases in the Constitution.88 Justice Scalia’s
main problem with citing modern foreign law “is not so much that the
law is foreign, but that it is modern.”89 Beyond this originalist critique,
Justice Scalia also objects that this methodology has the potential to
undermine both the rule of law and national sovereignty.90
1. Cultural Sovereignty
Conservative critics argue that contemporary foreign legal materials
are not appropriate interpretive aides because they reºect foreign legal
cultures that may differ signiªcantly from our own.91 For example, Justice
Scalia believes that Justice Breyer’s references in Knight and Foster to English and Jamaican judgments holding that extensive delay in executing a
death sentence renders the punishment cruel and unusual are irrelevant
to interpreting our own constitution, because England and Jamaica lack
the extensive habeas corpus appeals available to U.S. defendants.92 In the
United States, lengthy delays in execution are caused by the defendants’
appeals, rather than solely because of government action, as in Jamaica.93
87 Scalia, supra note 4, at 307. Some jurists attempt to defend the use of foreign materials from an originalist perspective. See Ginsburg, supra note 9, at 352. Justice Ginsburg
argues: “The drafters and signers of the Declaration of Independence cared about the
opinions of other peoples . . . . The Declarants stated their reasons [for independence]
‘out of a decent Respect to the Opinions of Mankind.’” Id.
88 See Scalia, supra note 4, at 306.
89 Michael C. Dorf, The Use of Foreign Law in American Constitutional Interpretation: A Revealing Colloquy Between Justices Scalia and Breyer, FindLaw’s Writ, Jan. 19, 2005, http://writ.
ªndlaw.com/dorf/20050119.html.
90 See Roper v. Simmons, 543 U.S. 551, 622–28 (2005) (Scalia, J., dissenting).
91 See Foster v. Florida, 123 S. Ct. 470, 470 n. (2002) (Thomas, J., concurring in denial
of cert.).
92 See Scalia-Breyer Discussion, supra note 11, at 528–29 (comments by Justice Scalia).
93 See id.
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In Roper, he similarly attacked the Court’s “special reliance on the laws of
the United Kingdom . . . . a country that has developed, in the centuries
since the Revolutionary War—and with increasing speed since the United
Kingdom’s recent submission to the jurisprudence of European courts
dominated by continental jurists—a legal, political, and social culture
quite different from our own.”94
2. Threat of Restricting Domestic Civil Rights
Critics of the Court’s methodology point out that the use of foreign law is a two-way street; so long as the Court deems it relevant to all
cases interpreting the Constitution, it can also be used to restrict the
scope of constitutional rights in the United States.95 The United States
has a unique constitutional jurisprudence, whose precepts are now
deeply embedded in American culture.96 The United States affords its
citizens uniquely extensive protections in the areas of criminal procedure, free speech, defamation, separation of church and state, and reproductive rights.97 Justice Scalia noted in Roper that the Court has
never considered foreign views in interpreting the First Amendment or
the Sixth Amendment, though it has articulated no clear reason why
those views should not be taken into consideration.98 In his words, the
Court does not take its own directive seriously.99
3. Increased Judicial Discretion
Justice Scalia also argues that the Court’s inconsistent use of contemporary foreign legal experience undermines the rule of law because, by expanding the universe of law that judges can apply to any
particular set of facts, the ultimate disposition of the case becomes
less predictable and more likely to vary from judge to judge.100 He
writes: “To invoke alien law when it agrees with one’s own thinking,
and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”101 What particularly irks Justice Scalia is that the Court has mentioned foreign legal experience in cases concerning the rights of ho94 543 U.S. at 626–27 (Scalia, J., dissenting).
95 See id. at 624–26.
96 See id.
97 Id.
98 See id. at 624–25.
99 Roper v. Simmons, 543 U.S. 551, 627 (2005) (Scalia, J., dissenting).
100 Scalia, supra note 4, at 309.
101 Roper, 543 U.S. at 627 (Scalia, J., dissenting).
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mosexuals but not abortion cases, despite the fact that both are interpreting the same substantive due process clause.102
B. Justice Breyer’s View: Contemporary Materials from the
Anglo-American Common Law Community Can Be
Relevant to Constitutional Interpretation
Justice Breyer has a different view, implicitly arguing that the Court
can justiªably consult the contemporary experiences of British and
former Commonwealth jurisdictions if and when it interprets constitutional rules that have their origins in English common law.103 Several
provisions of the U.S. Constitution represent codiªcations of important
principles of English common law as they existed in 1789.104 For example, the Eighth Amendment prohibition against “cruel and unusual
punishments” was taken almost verbatim from Section 10 of the English
Declaration of Rights of 1689, which provided “[t]hat excessive Baile
ought not to be required nor excessive Fines imposed nor cruell and
unusuall Punishments inºicted.”105 The Fifth Amendment rule regarding the admission of coerced confessions also traces its origins back to a
standard of English common law at the time of the Constitution.106
Many other common law nations have laws regarding cruel and unusual punishment and the privilege against self-incrimination that are
derived from the same common law that is reºected in the Eighth
Amendment107 and the Fifth Amendment.108 Given these historical and
102 See id. at 625-26.
103 See Foster v. Florida, 123 S. Ct. 470, 472 (2002) (Breyer, J., dissenting from denial of
cert.); Knight v. Florida, 120 S. Ct. 459, 462-63 (1999) (Breyer, J., dissenting from denial of
cert.). In practice, however, Justice Breyer has not limited his use of foreign law to materials from within the Anglo-American common law community. See, e.g., Printz v. United
States, 521 U.S. 898, 976-77 (1997) (Breyer, J., dissenting) (citing Swiss, German, and
European Union experience).
104 See Dickerson v. United States, 530 U.S. 428, 433 (2000); Harmelin v. Michigan, 501
U.S. 957, 966 (1991).
105 See Harmelin, 501 U.S. at 966.
106 See Dickerson, 530 U.S. at 433.
107 The textual similarities between the Eighth Amendment and similar prohibitions in
the constitutions of former Commonwealth jurisdictions are evidence that they share a
common historic ancestor in the English Bill of Rights of 1689. See, e.g., Can. Const. pt. I,
§ 12 (“Everyone has the right not to be subjected to any cruel and unusual treatment or
punishment.”); Jam. Const. ch. III, § 17(1) (“No person shall be subjected to torture or to
inhuman or degrading punishment or other treatment.”); Zimb. Const. ch. III, § 15(1)
(“No person shall be subjected to torture or to inhuman or degrading punishment or
other such treatment.”).
108 See Jeffrey K. Walker, A Comparative Discussion of the Privilege Against Self-Incrimination,
14 N.Y. L. Sch. J. Int’l & Comp. L. 1, 6, 12, 14, 19 (1993) (describing how U.S., English,
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textual connections, when a U.S. court is presented with a difªcult or
novel question concerning the proper interpretation of the Eighth
Amendment or Fifth Amendment Self-Incrimination Clause, it might
consult, for example, the judgments of English, Canadian, and Indian
courts that wrestled with similar questions.109 This common law dialogue among jurists would resemble what U.S. state supreme courts do
when they look at decisions from neighboring states regarding common law principles of property, contracts, and torts as informative but
non-binding guides.110 Under this approach, the relevance of the foreign rule to domestic constitutional interpretation is always nonbinding; it depends upon the depth of its reasoning rather than simply
its result.111
Justice Breyer’s well-reasoned dissents in Knight and Foster provide
an illustration of this methodology at work.112 In considering whether
the execution of a defendant after he had sat on death row for nearly
twenty years constituted cruel and unusual punishment, Justice Breyer
compared and contrasted judgments from common law courts— including England, Jamaica, Canada, and Zimbabwe—that were also interpreting constitutions that banned “torture or . . . inhuman or degrading punishment.”113 Most reasoned that the “suffering inherent in a
prolonged wait for execution” undermined the sentence’s basic retributivist or deterrent purpose, making the subsequent execution unconstitutionally disproportionate punishment.114 Justice Breyer noted
that these decisions were “relevant and informative” precisely because
these common law jurisdictions were applying “standards roughly comparable to our own constitutional standards,” which all derived from a
common ancestor.115 Some lower federal courts follow this comparative
Canadian, and Indian rules regarding the privilege against self-incrimination share common historical origins).
109 See, e.g., Knight v. Florida, 120 S. Ct. 459, 462-63 (1999) (Breyer, J., dissenting from
denial of cert.).
110 See Appropriate Role of Foreign Judgments, supra note 14, at 54–55 (testimony of Prof.
Vicki Jackson).
111 See Scalia-Breyer Discussion, supra note 11, at 523 (comments of Justice Breyer). This
use contrasts with the “moral fact-ªnding” approach criticized by Professor Larsen, where
foreign rules are treated as relevant irrespective of the reasoning behind the rule. See Larsen, supra note 23, at 1295–96.
112 See Foster v. Florida, 123 S. Ct. 470, 472 (2002) (Breyer, J., dissenting from denial of
cert.); Knight, 120 S. Ct. at 462–63 (Breyer, J., dissenting from denial of cert.).
113 Knight, 120 S. Ct. at 463 (Breyer, J., dissenting from denial of cert.).
114 See id. at 462.
115 Id. at 463–64; see also Foster, 123 S.Ct. at 472 (Breyer, J., dissenting from denial of
cert.)
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common law rationale in post-Lawrence decisions that use contemporary foreign legal practice as an aide in interpreting the scope of the
Eighth Amendment116 and the Fifth Amendment’s Self-Incrimination
Clause.117
1. Application to Atkins
This common law theory of comparative constitutional law would
not justify the Court’s use of foreign legal materials in Atkins.118 Atkins
cited to legal practice and opinion in the “world community” writ large,
with no special emphasis on common law jurisdictions.119 Justice Stevens took no account of the reasons why foreign legal courts and legislatures rejected execution of the mentally retarded; the foreign rules
were relevant because of their results, not their reasoning.120
2. Application to Lawrence
Justice Kennedy’s opinion in Lawrence did focus on British legal
experience, including parliamentary reports and acts, in informing his
interpretation of the scope of the Fourteenth Amendment’s substantive
due process clause.121 Lawrence primarily relied, however, on a decision
from the European Court of Human Rights rather than a British
court.122 Further, the European Court was interpreting a document,
the European Convention on Human Rights, which postdates the Fourteenth Amendment by almost a century and whose operative language
differs signiªcantly.123 The respective rights to privacy protected by the
Fourteenth Amendment and European Convention on Human Rights
116 See, e.g., United States v. Sampson, 275 F. Supp. 2d 49, 65–66, 83–84 (D. Mass. 2003)
(discussing English experience with the death penalty in considering defendant’s claim
that the Federal Death Penalty Act violates the Eighth Amendment).
117 See, e.g., United States v. Sasson, 334 F. Supp. 2d 347, 373–75 (E.D.N.Y. 2004) (discussing English judgments regarding the admissibility of evidence found as a result of
compelled self-incrimination in interpreting the scope of the Miranda exclusionary rule).
118 See 536 U.S. 304, 316 n.21 (2002).
119 Id.
120 See Larsen, supra note 23, at 1295–96, 1296 n.59.
121 539 U.S. 558, 572–73 (2002).
122 Dudgeon v. United Kingdom, 3 Eur. Ct. H.R. Rep. 40, 54, ¶ 97 (1980) (cited in
Lawrence, 539 U.S. at 573, 576–77).
123 See id. The text of Article 8(1) of the European Convention on Human Rights is far
more explicit about announcing a right to privacy than is the text of Fourteenth Amendment to the U.S. Constitution. Compare Convention for the Protection of Human Rights
and Fundamental Freedoms, Nov. 4, 1950, art. 8(1), Eur. T.S. 5 (“Everyone has the right to
respect for his private and family life . . . .”), with U.S. Const. amend. XIV § 1 (no state
shall “deprive any person of life, liberty, or property, without due process of law”).
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do not share a common law ancestor.124 Justice Kennedy’s use of foreign law is also inconsistent with this theory of common law dialogue
because it did not make the relevance of the legal rule contingent on
the strength of its reasoning.125 Justice Kennedy did not mention the
reasoning behind Dudgeon, assuming that the “human freedom” protected by Article 8(1) of the European Convention on Human Rights
was interchangeable with the liberty protected by the Fourteenth
Amendment’s substantive due process clause.126 However desirable Justice Kennedy’s decision was on the merits, his use of foreign legal materials as an interpretive aide was unsupported by a common law theory
of comparative constitutional law.127
3. Application to Roper
Justice Kennedy adopted this comparative common law approach
more explicitly in Roper, again placing particular emphasis on British
materials.128 He argued: “[T]he United Kingdom experience bears particular relevance here in light of the historic ties between our countries
and in light of the Eighth Amendment’s own origins.”129 Justice Kennedy mentioned the Eighth Amendment’s ancestor, the English Declaration of Rights of 1689, and discussed how the U.K. recognized the
disproportionate punishment inherent in the juvenile death penalty
and abolished it in 1948.130 Implicitly, Justice Kennedy seemed to be
reasoning that the British interpretation of what constitutes “cruel and
unusual punishment,” reºected in its parliamentary acts and government policies, was a well-reasoned rule that could represent a similarly
sensible interpretation of the parallel American rule.131
124 Compare Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 8(1), Eur. T.S. 5 (“Everyone has the right to respect for his private
and family life . . . .”), with U.S. Const. amend. XIV § 1 (no state shall “deprive any person
of life, liberty, or property, without due process of law”). Substantive due process, unlike
procedural due process, has only a tenuous historical connection to the common law
reºected in the Magna Carta’s per legem terrae. See Hurtado v. People of California, 110 U.S.
516, 531–32 (1884).
125 See Larsen, supra note 23, at 1297.
126 See Lawrence, 539 U.S. at 573, 576–77.
127 See supra notes 121–26 and accompanying text.
128 See 543 U.S. 1183, 1199–1200 (2005).
129 Id. at 1199.
130 Id. at 1199–1200.
131 See id. Justice Kennedy generally refers to British statutes and practices, while Justice
Breyer generally refers to British judge-made rules. See Roper v. Simmons, 543 U.S. 551,
577–78 ( Justice Kennedy’s discussion of British parliamentary reports and statutes); Lawrence v. Texas, 539 U.S. 558, 572–73 (Kennedy’s discussion of British parliamentary report
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C. An Alternative View: Jus Cogens and Constitutional Interpretation
A second, far more politically controversial theory that could justify the Court’s recent use of contemporary foreign legal practice is
grounded in the doctrine of customary international human rights
law.132 In 1900, the Court held in The Paquete Habana133 that,
“[i]nternational law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as often
as questions of right depending upon it are duly presented for their
determination.”134 Paquete Habana also recognized that a rule of international law can become binding through the “customs and usages of
civilized nations.”135 A norm crystallizes into a rule of customary international law when there is sufªcient state practice consistent with it and
opinio juris, meaning states follow the practice from a sense of legal obligation.136
As Paquete Habana suggests, however, customary international law
is part of U.S. law only to a very limited extent.137 Paquete Habana’s
holding only applies to a fact pattern to which no controlling U.S. executive, legislative, or judicial act can be applied, which in that case
involved a foreign ªshing vessel seized in international waters as a
prize of war.138 In contrast, when a U.S. statute controls the facts of
the case, federal courts have held that customary international law
cannot supplant that domestic law.139
and statute); Knight v. Florida, 120 S. Ct. 459, 462-63 (1999) (Breyer, J., dissenting from
denial of cert.) ( Justice Breyer’s discussion of British and Commonwealth judicial opinions). To a judge using this comparative common law approach, foreign statutes are less
useful than foreign judgments because they are rarely accompanied by readily discernable
reasoning. See id.
132 See generally Ken I. Kersch, Multilateralism Comes to the Courts, 154 Pub. Int. 3 (2004)
(a conservative criticism of applying customary international human rights law in the federal courts).
133 175 U.S. 677 (1900).
134 Id. at 700.
135 Id.
136 See Statute of the International Court of Justice, June 26, 1945, art. 38(1)(b), 59
Stat. 1031, T.S. No. 993 (referring to “international custom, as evidence of a general practice accepted as law”); Restatement (Third) of Foreign Relations Law of the U.S.
§ 102(2) (1987) [hereinafter Foreign Relations Restatement] (“Customary international law results from a general and consistent practice of states followed by them from a
sense of legal obligation.”).
137 175 U.S. at 700.
138 Id.
139 Munoz v. Ashcroft, 339 F.3d 950, 958 (9th Cir. 2003); United States v. Yousef, 327
F.3d 56, 93 (2d Cir. 2003).
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Federal appellate courts hold that only in rare situations when a
rule of customary international law has ripened into a jus cogens norm
does it enjoy nonderogable and peremptory status such that it could
trump U.S. law.140 The concept of a jus cogens peremptory norm is
difªcult to describe.141 Article 53 of the Vienna Convention on the
Law of Treaties deªnes it somewhat tautologically: “[A] peremptory
norm of general international law is a norm accepted and recognized
by the international community of States as a whole as a norm from
which no derogation is permitted . . . .”142 U.S. federal courts recognize the universal nature of jus cogens, which “embraces customary
laws considered binding on all nations” and “is derived from values
taken to be fundamental by the international community, rather than
from the fortuitous or self-interested choices of nations.”143 In other
words, a jus cogens norm differs from a mere rule of customary international law in that it enjoys near universal acceptance.144 Basic rules
of international human rights law that protect the intrinsic dignity of
the human person enjoy such status.145
Jus cogens doctrine could justify the use of contemporary foreign
legal practice in interpreting the Eighth Amendment.146 Federal case
law and the American Law Institute’s Restatement (Third) of Foreign Relations Law state that prohibitions against ofªcial torture and cruel and
140 Cf. United States v. Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995) (citing
Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939–40 (D.C. Cir. 1988))
(holding that the kidnapping of a defendant by government agents in Honduras for purposes of bringing defendant to the United States to face trial was not justiciable in federal
court because it did not violate a recognized U.S. constitutional or statutory provision or a jus
cogens norm, given that the prohibition against kidnapping does not qualify as a jus cogens
norm); see also Foreign Relations Restatement, supra note 136, at § 102 cmt. k.
141 See Karen Parker & Lyn Beth Neylon, Jus Cogens: Compelling the Law of Human
Rights, 12 Hastings Int’l & Comp. L. Rev. 411, 414 (1989).
142 Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S.
331.
143 Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir. 1992) (citing David F.
Klein, A Theory for the Application of the Customary International Law of Human Rights by Domestic Courts, 13 Yale J. Int’l L. 332, 350–51 (1988)).
144 See id.
145 See Foreign Relations Restatement, supra note 136, at § 702 cmt. n. These include protections against genocide, slavery, torture, and state-sponsored murder. Id.
146 See, e.g., Geoffrey Sawyer, Comment, The Death Penalty Is Dead Wrong: Jus Cogens
Norms and the Evolving Standard of Decency, 22 Penn St. Int’l L. Rev. 459, 481 (2004); Kha
Q. Nguyen, Note, In Defense of the Child: A Jus Cogens Approach to the Capital Punishment of
Juveniles in the United States, 28 Geo. Wash. J. Int’l L. & Econ. 401, 436 (1995).
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unusual punishment enjoy jus cogens status.147 Because these nonderogable prohibitions are binding on all states, and the responsibility
to follow them are obligations erga omnes,148 it makes sense that the
United States must interpret its own constitutional prohibition against
“cruel and unusual punishment” so as to afford its citizens at least as
much protections as jus cogens norms demand.149 The Court’s “evolving standards of decency” jurisprudence already embodies the natural
law concept of jus cogens and recognizes the Eighth Amendment as a
human rights law: “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man . . . .”150
Jus cogens might also play a legitimate role in interpreting the scope
of the due process clause in cases involving arbitrary detention or abusive interrogation techniques.151 The Fourteenth Amendment already
prohibits state law enforcement conduct that “shocks the conscience”
or interferes with rights “implicit in the concept of ordered liberty.”152
Like the “evolving standards of decency” test in Eighth Amendment
jurisprudence, this broad, universal language seems to allow room for a
consideration of foreign views.153 Therefore, in an unusual case where
the arbitrary detention or torture of a party did not violate a recognized U.S. constitutional or statutory provision but nonetheless fell below universally accepted human rights standards, the Court might reinterpret the Fourteenth Amendment “up” so that it at least reºect jus
cogens norms.154 It is likely that such a case could soon come before the
147 Blake, 965 F.2d at 717; Foreign Relations Restatement, supra note 136, at § 702
cmt. n; see also Filartiga v. Pena-Irala, 630 F.2d 876, 882 (2d Cir. 1980) (referring to the ban
on ofªcial torture as “part of customary international law”).
148 See Foreign Relations Restatement, supra note 136, at § 702 cmt. o.
149 See Nugyen, supra note 146, at 437–38; see also Viktor Mayer-Schönberger & Teree E.
Foster, More Speech, Less Noise: Amplifying Content-Based Speech Regulations Through Binding
International Law, 18 B.C. Int’l & Comp. L. Rev. 59, 90 (1995) (proposing jus cogens as “a
constitutional interpretive device” for the First Amendment); Parker & Neylon, supra note
141, at 457 (arguing that the U.S. Supreme Court has been “using jus cogens analysis,
though not the term ‘jus cogens’” in interpreting the Fourteenth Amendment).
150 Atkins v. Virginia, 536 U.S. 304, 311 (2002) (quoting Trop v. Dulles, 356 U.S. 86,
100–01 (1958) (plurality opinion)).
151 See Foreign Relations Restatement, supra note 136, at § 702(e) (recognizing the
prohibition against state practice or encouragement of “prolonged arbitrary detention” as
a jus cogens norm).
152 See Chavez v. Martinez, 538 U.S. 760, 787 (2003) (citing Rochin v. California, 342
U.S. 165, 172 (1952)); Palko v. Connecticut, 302 U.S. 319, 325–26 (1937).
153 See Chavez, 538 U.S. at 787; Palko, 302 U.S. at 325-26.
154 See Foreign Relations Restatement, supra note 136, at § 702(e); cf. Palko, 302
U.S. at 325–26 (considering foreign legal practice but refusing to reinterpret the Fourteenth Amendment “up” where the existing U.S. constitutional rule concerning double
jeopardy did not fall below international human rights standards).
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Court because, as the U.S. legal system increasingly condones interrogation techniques that its European counterparts would not, there is a
greater possibility that U.S. constitutional rules regarding torture may
afford detainees less robust protection than customary international
law.155
1. Application to Atkins and Roper
The Court could have used jus cogens doctrine to support its decisions banning the juvenile death penalty in Roper and execution of the
mentally retarded in Atkins.156 In determining whether a rule of customary international human rights law has crystallized into a jus cogens
norm, a court must examine contemporary state practices for indicia of
near universal acceptance.157 Without couching it in the language of
international law, Justice Kennedy essentially did this by conducting a
factual survey of legal practices throughout the world, including both
foreign law and international treaties, concerning the death penalty.158
Noting that even notorious human rights violators such as Iran, Yemen,
and China no longer executed juvenile offenders, Justice Kennedy
concluded: “In sum, it is fair to say that the United States now stands
alone in a world that has turned its face against the juvenile death penalty.”159 These facts could have supported the conclusion that the international custom prohibiting the juvenile death penalty had ripened
into a jus cogens norm and was therefore controlling in this case.160
Stevens could have used similar reasoning to support the Court’s
decision in Atkins, given his factual ªnding that “within the world
community, the imposition of the death penalty for crimes committed
155 See Rosen, supra note 12, at 12 (noting disagreements between Europeans and
Americans regarding the appropriate line between privacy and security after September
11, 2001).
156 See Carrie Martin, Comment, Spare the Death Penalty, Spoil the Child: How the Execution
of Juveniles Violates the Eighth Amendment’s Ban on Cruel and Unusual Punishment in 2005, 6 S.
Tex. L. Rev. 695, 719–24 (2005); Sawyer, supra note 146, at 481. See generally Nguyen, supra
note 146. But see Young, supra note 23, at 150 n.16 (arguing that few “domestic lawyers
[could] take . . . seriously” the contention that the prohibition of the juvenile death penalty is a jus cogens norm that controls the interpretation of the Eighth Amendment).
157 See Statute of the International Court of Justice, art. 38(1)(b), supra note 136; Foreign Relations Restatement, supra note 136, at § 102(2).
158 Roper v. Simmons, 543 U.S. 551, 575-78 (2005).
159 Id. at 575.
160 See id.; see also Nguyen, supra note 146, at 433–35 (presenting empirical evidence of
a jus cogens norm prohibiting juvenile executions).
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by mentally retarded offenders is overwhelmingly disapproved.”161
While the Court refuses to admit that when it consults “evolving standards of decency” throughout the “world community” in death penalty cases, it is really interpreting the U.S. Constitution to reºect international human rights law,162 some lower federal courts are willing
to follow the lead and cite Atkins for this proposition.163
2. Application to Lawrence
Customary international human rights law cannot similarly justify
Lawrence’s use of foreign law.164 Unlike the prohibition against ofªcial
torture reºected in the Eighth Amendment, the Fourteenth Amendment’s right to engage in private, consensual, intimate contact free
from government interference does not have sufªcient state practice to
have ripened into a rule of customary international law.165 Further,
Lawrence’s discussion of foreign law was limited to a discussion of how
“Western” jurisdictions conceive of human freedom rather than how
the world community writ large perceives it.166
161 See Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002). “The Court’s reasoning in Atkins, evokes at the very least natural law theory, and at the most, the very essence of jus
cogens.” Sawyer, supra note 146, at 481.
162 See Atkins, 536 U.S. at 316 n.21. Prior to Roper, the Court declined to entertain
claims that the juvenile death penalty violated customary international law or a principle
of jus cogens. Domingues v. Nevada, 528 U.S. 963 (1999), denying cert. to Domingues v. State,
961 P.2d 1279, 1279-80(Nev. 1998).
163 See, e.g., Kane v. Winn, 319 F. Supp. 2d 162, 201–02 (D. Mass. 2004) (reafªrming
“the importance of international law in deªning the liberties protected by the Bill of
Rights”).
164 Privacy rights do not yet enjoy nearly enough recognition, particularly in nonWestern courts, to be considered customary international norms, but some privacy rights
may achieve that status in the foreseeable future. See Foreign Relations Restatement,
supra note 136, at § 702 cmt. a. For example, the United Nations Human Rights Committee recently acknowledged states’ growing recognition of “a right of privacy in intimate
relationships, enjoyed by all citizens regardless of sexual orientation” in holding that Australia had violated Article 26 of the International Covenant on Civil and Political Rights by
denying a pension to the same-sex partner of a deceased war veteran. Mr. Edward Young v.
Australia, U.N. Doc. CCPR/C/78/D/941/2000 (2003) (concurring opinion), available at
http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/3c839cb2ae3bef6fc1256dac002b30
34?Opendocument.
165 See Lawrence v. Texas, 539 U.S. 558, 598 (2003) (Scalia, J., dissenting) (stating that
“many countries . . . have retained criminal prohibitions on sodomy”).
166 See id. at 573, 576–77; see also Scalia-Breyer Discussion, supra note 11, at 531 (comments of Justice Scalia).
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III. Analysis
The previous section described two theories that might justify
and limit the relevance of contemporary foreign legal practice in domestic constitutional interpretation: a comparative common law approach and a customary international human rights law approach.167
This section compares the two and argues that the customary international human rights law approach would best address the concerns
that Justice Scalia expressed regarding the possible misuses of foreign
law in constitutional cases.168 Its adoption by the Court would better
strengthen the political position of its “internationalist” wing, led by
Justice Breyer, by restricting the use of foreign law in domestic constitutional interpretation to a limited number of cases in which the human rights considerations are the most pressing.169
A. Cultural Sovereignty
The customary international human rights law rationale better
addresses Justice Scalia’s concern that the Court will import alien cultural norms and impose them upon a nation that has not assented to
them.170 As noted above, a rule of customary international law can only
be used to trump existing U.S. law if it has attained jus cogens status.171
Jus cogens human rights norms, which by deªnition must enjoy near
universal acceptance, transcend cultural differences in that they have
their origins in natural law.172 They only regulate a few categories of
behavior—genocide, slavery, murder, torture, prolonged arbitrary detention, systematic racial discrimination—that offend an intrinsic dignity of the human person that all cultures recognize.173 Their application to U.S. constitutional interpretation would not, therefore, impose
alien cultural norms on the United States.174
167 See supra notes 103–17, 132–55 and accompanying text.
168 See infra notes 170–94 and accompanying text.
169 See infra notes 170–94 and accompanying text.
170 See supra notes 91–94 and accompanying text.
171 See United States v. Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995).
172 See Mark W. Janis, The Nature of Jus Cogens, 3 Conn. J. Int’l L. 359, 361 (1988).
173 Foreign Relations Restatement, supra note 136, at § 702. For example, most of
these human rights are mentioned in the Universal Declaration of Human Rights, whose
preamble recognizes the “inherent dignity . . . of all members of the human family . . . .”
Universal Declaration of Human Rights, preamble, arts. 4, 5, 9, G.A. Res. 217A (III), U.N.
Doc. A/810, at 71 (Dec. 12, 1948).
174 See Universal Declaration of Human Rights, pmbl., arts. 4, 5, 9, G.A. Res. 217A (III),
U.N. Doc. A/810, at 71 (Dec. 12, 1948); Foreign Relations Restatement, supra note
136, at § 702.
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In contrast, a common law approach to comparative constitutional
law does run the risk of importing foreign cultural norms into the U.S.
Constitution.175 For example, federal courts that use contemporary
British legal materials to justify limiting the scope of the Fifth Amendment’s Self-Incrimination Clause176 are watering down Miranda warnings that have become deeply embedded in an American culture that
has a unique conception of civil liberties that our common law cousins
do not necessarily share.177 This is precisely the evil that Justice Scalia
condemned in Roper: “special reliance on the laws of the United Kingdom . . . a country that has developed, in the centuries since the Revolutionary War—and with increasing speed since the United Kingdom’s
recent submission to the jurisprudence of European courts dominated
by continental jurists—a legal, political, and social culture quite different from our own.”178 In this respect, the use of contemporary foreign
legal materials under the common law approach does pose a threat to
U.S. cultural sovereignty.179
B. Potential to Justify Restriction of Domestic Civil Rights
Unlike the comparative common law approach, the customary international human rights law rationale would, by deªnition, never be
used to restrict the scope of individual rights in the United States.180
While the use of contemporary legal materials from Britain and former
Commonwealth countries in interpreting those provisions of the Bill of
Rights with common law origins would generally result in the expansion of individual rights in Eighth Amendment jurisprudence,181 the
opposite is true in Fifth Amendment cases.182 In contrast, customary
international human rights law would be used to set a ºoor, not a ceil175 See New York v. Quarles, 467 U.S. 649, 673–74 (1984) (O’Connor, J., concurring);
United States v. Sasson, 334 F. Supp. 2d 347, 374–75 (E.D.N.Y. 2004).
176 See Quarles, 467 U.S. at 673–74 (O’Connor, J., concurring); Sasson, 334 F. Supp. 2d
at 374–75.
177 See Roper v. Simmons, 543 U.S. 551, 624 (2005) (Scalia, J., dissenting) (“The Courtpronounced exclusionary rule, for example, is distinctively American.”); Dickerson v.
United States, 530 U.S. 428, 430 (2000).
178 543 U.S. at 626-27 (Scalia, J., dissenting).
179 See id.. at 624–25.
180 See Nadine Strossen, Recent U.S. and International Judicial Protection of Individual
Rights: A Comparative Legal Process Analysis and Proposed Synthesis, 41 Hastings L.J. 805, 806–
07 (1990).
181 See, e.g., Roper, 543 U.S. at 578.
182 See, e.g., New York v. Quarles, 467 U.S. 649, 673–74 (1984) (O’Connor, J., concurring); United States v. Sasson, 334 F.Supp. 2d 347, 374–75 (E.D.N.Y. 2004).
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ing, for the protection of domestic civil rights and civil liberties.183 If a
domestic constitutional rule already provided a claimant superior protection than a prevailing international norm, the Court could uphold
the domestic rule “unless the ordinary conditions for overcoming the
presumption of stare decisis were met.”184 If the Court limited its use of
contemporary foreign legal materials only to a search for jus cogens applicable to domestic constitutional interpretation, foreign law would
not be invoked, as it was in Quarles, to reduce the scope of individual
civil rights and civil liberties.185
C. Increased Judicial Discretion
Finally, the customary international human rights law rationale
would result in a more objective, predictable application of foreign
legal practice to domestic constitutional interpretation than would
the comparative common law approach.186 While the theoretical underpinnings of jus cogens may be abstract, the American Law Institute’s
Restatement (Third) of Foreign Relations and the federal courts have succeeded in limiting its substantive scope to a few areas central to the
protection of human dignity.187 Because these jus cogens norms must
enjoy near universal state acceptance, as Professor Nadine Strossen
argues: “The existence and acceptance of international human rights
norms are matters susceptible to objective determination.”188 Under
the customary international human rights law rationale, the use of
contemporary foreign legal practice could be limited to interpretation of the Eighth Amendment,189 dealing with the jus cogens prohibition against cruel and unusual punishment, and the due process
clause, dealing with the jus cogens prohibition against torture and arbitrary detention.190 In the rare case where state practice violated jus
183 See Strossen, supra note 180, at 806–07.
184 Larsen, supra note 23, at 1325.
185 See Quarles, 467 U.S. at 673–74 (O’Connor, J., concurring). But see Mayer-Schönberger
& Foster, supra note 149, at 135 (advocating the application of jus cogens in First Amendment
jurisprudence to restrict speech that is currently permitted).
186 See infra notes 187–94 and accompanying text.
187 United States v. Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995) (ªnding that
prohibition against ofªcial kidnapping is not a jus cogens norm such as prohibitions against
torture, slavery, or genocide); Foreign Relations Restatement, supra note 136, at § 702.
188 Strossen, supra note 180, at 830. But see Larsen, supra note 23, at 1305–07 (challenging scholars and jurists who argue that rules of customary international human rights law
are objectively ascertainable).
189 See supra notes 146–50 and accompanying text.
190 See supra notes 151–55 and accompanying text.
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We Are the World?
295
cogens and existing U.S. law did not already provide a remedy, then a
judge would be obliged to apply the jus cogens norm because that
norm is binding and nonderogable erga omnes (to all states).191
In contrast, a judge following the comparative common law rationale is afforded wide discretion to either consult or ignore contemporary foreign legal practices in interpreting the Eighth and Fifth
Amendments.192 The decisions of British and former Commonwealth
courts would be always informative, but never binding, and the temptation to make the relevance of the foreign rule depend upon how well it
comports with a desired result may be too great to resist.193 While U.S.
state supreme court judges already enjoy a similar level of discretion
when consulting judgments from other state supreme courts in interpreting common law and their own state constitutions, the threat that
wide judicial discretion can pose to a stable rule of law is ampliªed
when applied to federal courts interpreting constitutional rules with
enormous political and social consequences.194
Conclusion
Atkins, Lawrence, and Roper all reached desirable results on the merits, but all three failed to explain when and why the Court should use
contemporary foreign legal practices to assist in domestic constitutional
interpretation.195 Without clear guidelines, the application of foreign
law to U.S. constitutional interpretation poses several problems.196
These risks include the erosion of national sovereignty, vastly increased
judicial discretion, and the possibility of someday citing foreign law to
restrict the Constitution’s protections for criminal defendants and unpopular speakers.197 Unless the Court at least makes an effort to address these concerns, the conservative backlash against perceived “judicial activism” will only grow, further imperiling the Court’s political
capital and good relations with its co-equal branches.198
191 See Foreign Relations Restatement, supra note 136, at § 702 cmt. o.
192 See Scalia-Breyer Discussion, supra note 11, at 531 (comments of Justice Scalia).
193 See id.
194 See Scalia, supra note 4, at 309. Scalia likens foreign law to legislative history in its
capacity to increase the scope of subjective judicial discretion. Id.
195 See Scalia-Breyer Discussion, supra note 11, at 525 (comments of Justice Scalia).
196 Supra notes 91–102 and accompanying text.
197 Supra notes 91–102 and accompanying text.
198 Justice Ginsburg has said of the congressional backlash against the use of foreign
law: “Although I doubt the resolutions will pass this Congress, it is disquieting that they
have attracted sizable support.” Anne E. Kornblut, Justice Ginsburg Backs Value of Foreign
Law, N.Y. Times, Apr. 2, 2005, at A10. Some on the far right have cited Justice Kennedy’s
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The Court needs to adopt a limiting principle that makes contemporary foreign legal practice relevant to some constitutional cases
but not to others.199 Jus cogens doctrine would provide the Court with
a workable rule, giving the application of foreign law a more objective
character and sharply restricting the number of occasions on which it
would be relevant, but without altering the end result in cases like Atkins and Roper.200 The adoption of such a rule would require political
courage because it would inspire inevitable criticism from jurists hostile to any application of international law.201 Given the executive and
legislative branches’ increasing hostility towards the Court and suspicion of “activist judges,” the continuing political cost of not adopting
any rule may be greater still.202
citation of foreign law in Lawrence and Roper as grounds for impeachment. Dana Milbank,
And the Verdict on Justice Kennedy Is: Guilty, Wash. Post, Apr. 9, 2005, at A3.
199 See Larsen, supra note 23, at 1322–26.
200 See supra notes 167–94 and accompanying text. As this Note has argued, however,
neither of these theories can adequately justify Justice Kennedy’s use of foreign law in Lawrence. See supra notes 121–27, 164–66 and accompanying text.
201 See generally, e.g., Kersch, supra note 132.
202 See supra note 198.
HYDROELECTRIC POWER PRODUCTION
IN COSTA RICA AND THE THREAT OF
ENVIRONMENTAL DISASTER
THROUGH CAFTA
R. Victoria Lindo*
Abstract: CAFTA’s ratiªcation threatens Costa Rica’s environmental integrity by permitting foreign investors virtual free reign to destroy its precious waterways through environmentally unsound methods of hydroelectric power production. While CAFTA contains provisions that appear
to protect the environments of the Central American signatory states, it
also contains provisions similar to NAFTA’s Chapter 11, which foreign investors have used to weaken environmental laws by suing those states that
have dared to enforce them. This Note explores existing environmental
laws in Costa Rica governing hydroelectric power production, including
its privatization. It also discusses and compares NAFTA’s Chapter 11 to
CAFTA’s Chapter 10 in order to illustrate the threat to Costa Rica’s waterways through private hydroelectric power production. This Note then
argues that, in order to preserve its waterways, Costa Rica must not ratify
CAFTA. Alternately, it argues that if Costa Rica does ratify CAFTA, the
state should consider adopting both preventative and remedial measures
to weaken its blow.
Introduction
The decision to exploit hydroelectric energy resources in developing countries is a hotly debated issue.1 Though hydroelectric power
is economically sensible for many developing countries, it is simulta-
* R. Victoria Lindo is the Senior Production Editor of the Boston College International &
Comparative Law Review. The author was exposed to this issue through her work at the
Monteverde Conservation League in Monteverde, Costa Rica. To ªnd out more about this
organization please visit www.acmcr.org.
1 See, e.g., Int’l Rivers Network, Rivers of Mesoamerica (2004), http://www.irn.
org/programs/meso/index.html; see World Comm’n on Dams, Dams and Development:
A New Framework for Decision-Making 6 (2000), available at http://www.dams.org/
report/overviews.htm; Elizabeth Anderson, Electricity Sector Reform Means More Dams for
Costa Rica, World Rivers Rev., Aug. 2002, at 3, 3.
297
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neously inherently destructive to their environments.2 In some nations such as Costa Rica, policymakers inevitably tend to favor hydroelectric power despite the environmental consequences.3 In Costa
Rica, this is partly because the country has unique natural resources
that engender prime conditions for hydroelectric power production.4
Speciªcally, the orientation of Costa Rica’s mountain chains combined with its heavy rainfall have created a large number of rivers that
are perfectly suited for hydroelectric dams.5 These rivers and waterways have become the nation’s foremost energy resource, which is
impressive given that the country also enjoys a number of other natural energy resources including wind, geothermal, and solar power.6 In
fact, hydroelectric power has become an indispensable energy resource in Costa Rica and currently provides over 80% of the nation’s
electricity.7
On one hand, hydroelectric power provides a number of beneªts
to Costa Rica.8 For example, because of its ability to produce great
quantities of electricity, hydroelectric power helps minimize Costa
Rica’s dependence on fossil fuels.9 In fact, Costa Rica is largely selfsufªcient in most energy needs and only requires the importation of
oil for transportation.10 Costa Rica’s need for oil is so minimal that,
despite knowledge of oil deposits off the country’s Atlantic coast, the
president has chosen not to permit their development in light of environmental concerns.11
On the other hand, hydroelectric dams also have the propensity
to cause serious and irreparable damage to both the environment and
2 See World Comm’n on Dams, supra note 1, at 10. See generally John D. Echeverria et
al., Rivers at Risk: The Concerned Citizen’s Guide to Hydropower 4–7 (1989) (describing how dams harm rivers).
3 See Anderson, supra note 1, at 3; World Comm’n on Dams, supra note 1, at 9 (noting
the increasing demands for water, electricity and other resources supplied by hydroelectric
power).
4 See Anderson, supra note 1, at 3.
5 Id.
6 See Inter-Am. Dev. Bank, Hydro and Geothermal Electricity as an Alternative for Industrial Petroleum Consumption in Costa Rica 14 (1982).
7 See Anderson, supra note 1, at 3; Centro Nactional de Planiªcación Eléctrica,
Análisis Comparativo: De las Variables Relacionados con el Consumo de Energia
Eléctrica en Costa Rica 2001–2002, at 10 (2003) [hereinafter CNPE].
8 U.S. Dep’t of State, Background Note: Costa Rica (2005), http://www.state.
gov/r/pa/ei/bgn/2019.htm [hereinafter Background Note: Costa Rica].
9 Id.
10 Id.
11 See id.
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Hydroelectric Power Production in Costa Rica
299
their surrounding communities.12 Even a well constructed and maintained dam can make a river inhospitable to native ªsh and plant species, and some types of dams actually dewater riverbeds for miles, such
that animals, plants, surrounding communities, and recreation seekers are barred from using the river.13 Hydroelectric dams are also notorious for forcibly uprooting and displacing entire indigenous surrounding communities around the world.14
In developing countries such as Costa Rica, hydroelectric power’s
potential beneªts are often lost and its environmental and social consequences exacerbated when production and distribution are privatized.15 Nevertheless, there has been no shortage of proposed international agreements aimed at privatizing state hydroelectric monopolies
in Costa Rica and throughout Central America.16 One example, the
Plan Puebla Panama (PPP), which aims to expand the electrical grid
throughout Central America and Mexico in order to attract private
producers and supply the United States with electricity from Central
American hydroelectric dams.17 This project has been principally
ªnanced through international ªnancing institutions like the InterAmerican Development Bank (IDB) that would all receive substantial
economic beneªts if the project went through.18 International agreements like the PPP tend to share one disturbing feature: the beneªts
of privatization are enjoyed almost entirely by the international organizations, and those beneªts come at a very high cost to the citizens
and the environments of these countries.19
12 See generally Echeverria, supra note 2, at 4–7.
13 Id. at 4–5.
14 U.N. Dep’t of Econ. & Soc. Affairs, Comm. on Sustainable Development, Statement of
the 5th Global Civil Society to the 8th Special Session of the UNEP Governing Council/Global Ministerial Environment Forum: Background Paper No. 7, at 3, U.N. Doc. DESA/DSD/2004/7 (Apr.
14–30, 2004), available at http://www.un-ngls.org/Jeju%20Statement.doc; see also Monti
Aguirre, Latin American Rivers Endangered by Regional Development Schemes, World River
Rev., Dec. 2002, at 12, 12.
15 See ECLAC Reports Privatization Has Been Bad for Regional Power, NotiCen: Cen. Am. &
Caribbean Affs., May 13, 2004, at 1–3, available at 2004 WLNR 6570641 [hereinafter
ECLAC Reports].
16 See Aguirre, supra note 14, at 12. See generally Fabian Borges, CAFTA: A View from Central America, Resource Center of the Americas, Feb. 20, 2004, available at http://www.
americas.org/index.php?cp=item&item_id=13782 [hereinafter CAFTA: A View] (discussing both the failed “ICE Energy Combo Bill” of 2000 and the Central American Free Trade
Agreement).
17 Aguirre, supra note 14, at 12.
18 Id.
19 See generally ECLAC Reports, supra note 15; Aguirre, supra note 14.
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The Costa Rican legislature now faces the dilemma of whether to
ratify the Central American Free Trade Agreement (CAFTA), which
threatens environmental protections throughout Central America by
allowing foreign investors to sue governments for enforcing their environmental laws.20 For Costa Rica, whose electricity comes ªrst and
foremost from its rivers, this means that CAFTA threatens to irreparably destroy those rivers and their surrounding environments, thereby
also threatening the unique and delicate ecological balance of the
nation.21
The Background of this Note will discuss Costa Rican environmental laws regulating hydroelectric power production and compare
them with laws in other Central American countries that have already
shifted toward privatization. The Discussion section will describe the
ways in which CAFTA threatens Costa Rica’s environment through the
partial privatization of Costa Rica’s energy monopoly, speciªcally in
hydroelectric power production. The Analysis will argue that Costa
Rica must maintain its state energy monopoly, ªght further privatization without increasing current restrictions on it, close loopholes in its
current environmental laws, and more effectively enforce its existing
environmental laws.
I. Background
Though continuing to allow the development of private and public hydroelectric power production across the country, Costa Rica has
recognized its dangers and has passed a number of laws strictly regulating it in order to protect both its citizens and the environment.22
Costa Rica started generating more comprehensive environmental leg20 See Central American Free Trade Agreement, Aug. 5, 2004, available at http://www.
ustr.gov/Trade_Agreements/Bilateral/CAFTA/CAFTA-DR_Final_Texts/Section_Index.html
[hereinafter CAFTA]; David Armstrong, CAFTA Friends, Foes State Their Case on Free Trade Deal:
Central America Pact Goes to House After OK by Senate, S.F. Cron., July 3, 2005, at B1; Press Release, EarthJustice et al., U.S. Groups Oppose the Central American Free Trade Agreement:
The CAFTA Signed Today Falls Short on the Environment, May 28, 2004, at 1, available at
www.citizen.org/documents/CAFTA_Fact_Sheet_Enviro.pdf [hereinafter EarthJustice].
21 See generally Aguirre, supra note 14, at 12 (noting the damaging effects of international privatization agreements on rivers and their surrounding environments).
22 See Ley Organica, Law No. 7554 of Oct. 4, 1995, arts. 50, 51, 52, 57, 64, 65, 67,
reprinted in Ricardo Zeledón, Código Ambiental [Environmental Code] 14 (Porvenir
1998); Ley de Conservación de la Vida Silvestre, Law No. 7317 of Oct. 21, 1992, (reformed
by Laws Nos. 7495 of May 3, 1995 and 7497 of May 2, 1995, and 7788 of Apr. 30, 1998), art.
132, reprinted in Zeledón, supra, at 93; Ley de Aguas, Law No. 276 of Aug. 27, 1942
(reformed by Laws Nos. 2332 of Apr. 9, 1959, 5046 of Aug. 16, 1972 and 5516 of May 2,
1974), arts. 1, 2, 17, 19, 27, reprinted in Zeledón, supra, at 141.
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Hydroelectric Power Production in Costa Rica
301
islation around 1994, some of which was aimed speciªcally at protecting its rivers and waterways.23
First and foremost, in 1994, Costa Rica amended Article 50 of its
Constitution to endow every citizen with the right to a healthy and
ecologically balanced environment.24 Two years later, it amended Article 46, which makes clear that the state was obligated to ensure that
protection.25 Facilitated by Article 46, Article 50 has taken on great
importance in Costa Rica and has become the foundation of nearly all
environmental legal protection in that country.26
Soon afterward, the government began passing laws speciªcally
targeted at protecting the country’s waterways.27 First, Costa Rica has
a number of laws which regulate private exploitation of the country’s
water.28 For example, Article I of the Water Law speciªes which waters
are considered public including all rivers and their tributaries.29 Also,
Article 27 delineates a hierarchy of preferred exploitations of public
water in which it demonstrates a strong preference for public over
private hydroelectric dams.30 Thus, anyone, including private hydroelectric generators, wishing to take advantage of the river’s natural resources can only do so if granted a contract by the state, subject to
certain restrictions, such as the hierarchy listed in Article 27.31
If a private electricity generator is granted a state contract, it
must stipulate that it will sell all the electricity it produces to the state
energy regulatory body, the Instituto Costarricense de Electricidad
(ICE), which in turn maintains a complete monopoly over the distribution of electricity to customers.32 As a result, the government retains the ability and responsibility to control energy prices, which has
23 See Constitución Politica de la Republica de Costa Rica, arts. 46, 50, reprinted in Zeledón, supra note 22, at 3; Ley Organica, supra note 22, arts. 50, 51, 52, 57, 64, 65, 67; Ley
de Conservación de la Vida Silvestre, supra note 22, art. 132; Ley de Aguas, supra note 22,
arts. 1, 2, 17, 19, 27.
24 Constitución, supra note 23, art. 50.
25 Id. art. 46.
26 Id. arts. 46, 50; see, e.g., Lauren Wolkoff, High Court Dampens Oil Plans, Tico Times (San
José, Costa Rica), Feb. 15, 2002, available at http://www.elaw.org/news/partners/
text.asp?id=989. See generally Facio & Cañas, Environmental Law Matrix and Practice
Skills (2002), available at http://www.lexmundi.com/images/lexmundi/PDF/Costa%20
Rica%20-%202002.pdf (listing article 50 as governing a variety of environmental issues).
27 See infra notes 29–42 and accompanying text.
28 See infra notes 29–42 and accompanying text.
29 Ley de Aguas, supra note 22, art. 1.
30 Id. art. 27. In this list, public hydroelectric plants are listed fourth and private plants
are listed seventh out of nine acceptable forms of exploitation. Id.
31 Id. arts. 2, 27.
32 Anderson, supra note 1, at 3.
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historically allowed the government to set energy prices below cost or
to delay energy price increases.33
In order to obtain a state contract, private electricity generators
are required to solicit an environmental impact assessment from the
National Environmental Technical Secretariat (SETENA).34 SETENA
will assess the probable impact of the proposed project on the environment and decide whether that impact is within legal bounds.35 If
so, the company can move forward; if not, the project is quashed.36
Once a private company has obtained a contract, it is subject to a
number of legal restrictions.37 For example, the plant is required to
use the river rationally and efªciently in order to conserve and protect the environment as much as possible, and the law strictly limits
the degree to which the company may alter the quality or the quantity
of the water, even requiring the company to treat it if that is necessary
to equalize it in quality to the receiving body of water.38 The company
is also required to actively protect and maintain the equilibrium of
the river as well as the watershed which feeds the river and must take
adequate remedial measures to limit and correct contamination.39
Failure to do so is punishable by a minimum ªne of ¢50.000 and up to
two years in prison.40
Nonetheless, several Costa Rican laws and regulations fall short of
adequately protecting its environment.41 For example, Article 67, which
requires both public and private entities using a river to protect its watershed, is only enforceable according to the classiªcation of use and
potential of the water.42 Thus, if a river is classiªed for hydroelectric use
33 Cf. Inter-Am. Dev. Bank, supra note 6, at 76 (regarding Costa Rica’s past decisions
to set energy prices below cost and delaying price increases as negative).
34 Ley de Aguas, supra note 22, art. 17 (establishing SETENA); Anderson, supra note 1,
at 3.
35 See generally Fabián Borges, Environment Ministry Issues Proposal to Reform SETENA,
Tico Times (San José, Costa Rica), May 15, 2003, available at http://www.ticotimes.net/
dailyarchive/2003_05/Week2/05_15_03.htm#story_two.
36 See generally id.
37 See Ley Organica, supra note 22, art. 51, 52, 57, 64, 65, 67; Ley de Conservación de la
Vida Silvestre, supra note 22, arts. 132.
38 Ley Organica, supra note 22, arts. 57, 64, 65.
39 Id. arts. 51, 52, 67.
40 Ley de Conservación de la Vida Silvestre, supra note 22, art. 132. The colon is the
Costa Rican currency. As of March 11, 2006, one U.S. dollar was equal to 503 Costa Rican
colones. Yahoo Finance, Currency Converter (Mar. 11, 2006) http://ªnance.yahoo.com/
currency/convert?amt=1&from=USD&to=CRC&submit=Convert.
41 See infra notes 42–43 and accompanying text.
42 See Ley Organica, supra note 22, art. 67. Article 65 has a similar limiting clause. Id.
art. 65.
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Hydroelectric Power Production in Costa Rica
303
only, the protection of its watershed is less than a watershed classiªed
for bathing or drinking.43
Furthermore, the stringent regulations that Law 7200 of 1990
originally imposed upon privatized electricity generators have since
been greatly weakened.44 Originally, this law limited the total amount
of electricity generated by private companies to 15% of the total domestic production.45 In 1995, however, Costa Rica amended the law to
allow private companies to produce up to 30%.46 Fortunately, the
amendment did not weaken the law’s other restrictions.47 Thus, the
law still limits the maximum installed generation capacity of private
plants to twenty megawatts, and limits foreign investment in private
generation companies to 65% of total investments.48
It is arguable that achieving the goals of Costa Rica’s environmental laws would have been easier without the passage of Law 7200,
because electricity production and distribution was managed entirely
by ICE, a government organization that could be held accountable by
the public.49 Granted, Law 7200 was passed with the intention of better distributing the costs and responsibilities of electricity production
among several entities while simultaneously meeting the continually
increasing demand for electricity.50 But this legislation, as amended,
has exposed Costa Rica to the negative consequences of permitting
foreign investment in private electricity production that has been
sweeping developing nations.51 Thus far, fortunately, Costa Rica has
managed to fair far better than its Central American neighbors who
have permitted greater degrees of privatization.52
43 See generally id.
44 See La Ley que Autoriza la Generación Eléctrica Autónoma o Paralela, Law No. 7200
of Sept. 28, 1990, reformed in Law 7508 of May 31, 1995, at 2, 3, available at http://www.
racsa.co.cr/asamblea/proyecto/leyes_r.htm[hereinafter Law 7200]; Anderson, supra note
1, at 3.
45 Law 7200, supra note 47, at 5; CNPE, supra note 7, at 10.
46 Law 7200, supra note 47, at 5; CNPE, supra note 7, at 10.
47 Law 7200, supra note 47, at 2, 3.
48 Id.
49 See Anderson, supra note 1, at 3; ECLAC Reports, supra note 15, at 1–3.
50 Anderson, supra note 1, at 3.
51 Anderson, supra note 1, at 3; ECLAC Reports, supra note 15, at 1–3.
52 See ECLAC Reports, supra note 15, at 1–3.
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A. Comparison of Costa Rica’s Environmental Laws to Other
Central American Countries That Have Seen Greater
Degrees of Privatization
In many other Central American countries, privatization of electricity production has already proven disastrous in numerous ways.53
Privatization has occurred in varying degrees throughout Central
America.54 This ranges from the privatization of electricity generation,
transmission, or distribution to actually selling state-run generation facilities like dams to private entities, thereby completely eliminating the
government’s role and responsibilities in the electricity sector.55
One major problem borne by Central American countries that
have experienced greater degrees of privatization is skyrocketing energy prices.56 In fact, in Central American countries that have completely privatized energy production and distribution like El Salvador
and Guatemala, energy prices are a staggering 56% higher than in
Costa Rica.57 In contrast, Costa Rica, where privatization of electricity
production has been more gradual than in other countries, has generally managed to maintain low energy costs for its citizens.58
Efªciency has also been a signiªcant problem in privatized countries.59 On average, privatized countries suffer between 20–32% production losses, whereas Costa Rica has managed to reduce losses to
just 9%.60 While privatization was expected to increase competition,
only two companies control 70–90% of production in privatized Central American countries, providing them little incentive to improve
efªciency.61 On the other hand, the gradual nature of privatization
combined with the maintenance of a law limiting the degree of participation of private companies in hydroelectric power production in
53 Id. at 1 (noting that privatization in Central America has only beneªted the “fat
ªsh,” who avoid renewable energy sources and concentrate on fossil fuel ªred plants and
under whose direction domestic rates have doubled or tripled in some areas).
54 Id. at 1–3.
55 Anderson, supra note 1, at 3.
56 See ECLAC Reports, supra note 15, at 1–2.
57 Id.
58 Id. at 1; Mauricio Salas, Down with Diesel, Project & Trade Fin., Oct. 1, 2005, at S46,
available at 2005 WLNR 18285805 (noting that consumer rates are stable and affordable).
59 ECLAC Reports, supra note 15, at 2.
60 Id. These production loses are due to technical shortcomings caused by lack of improvement in the infrastructure and theft. Id.
61 Id.
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Hydroelectric Power Production in Costa Rica
305
Costa Rica has helped the country avoid these kinds efªciency-related
issues.62
Privatization also has failed to improve distribution rates.63 For
example, in Guatemala, where an excess of electricity is produced,
large numbers of people in rural areas are still without electricity.64 In
contrast, 98% of Costa Rica is electriªed.65
Costa Rica, however, has not managed to escape all of the problems associated with privatization.66 As a result of the 1990 electricity
reform, one serious consequence of privatization that Costa Rica now
shares with other Central American countries is the devastating environmental impact.67 In Costa Rica, while the distribution of electricity
is still under the control of ICE, more privately owned and operated
hydroelectric plants are gradually being built all over the country.68 In
fact, over a little more than a decade, more than thirty privately
owned and operated small to mid-sized hydropower dams have been
constructed on Costa Rica’s rivers, many of them exploiting just three
watersheds on the San Carlos, Reventazón, and General rivers, and
over a hundred more are planned.69 While the private electricity producers point out that they have been crucial in supplying Costa Rica’s
electricity during the twice daily peak demand periods, it is quickly
becoming apparent that the rapid growth in hydroelectric power
plants is causing serious, potentially irreversible damage to vital watersheds and the plants and animals that inhabit them.70 As disturbing as
this is, further privatization promises far worse consequences for
Costa Rica.71
Overall, while Costa Rica has an admirable compilation of environmental legislation compared to its neighbors, the truth is that
those laws fail to adequately prevent hydroelectric plants from causing
serious environmental damage as is, and if Costa Rica further privat62 Id.
63 See id. at 1.
64 ECLAC Reports, supra note 15, at 1. By way of comparison, over nine million people
in Mexico remain without electricity. Id.
65 Salas, supra note 58, at 4.
66 See Anderson, supra note 1, at 3.
67 See ECLAC Reports, supra note 15, at 3; Anderson, supra note 1, at 3.
68 Anderson, supra note 1, at 3.
69 CNPE, supra note 7, at 10; Anderson, supra note 1, at 3; Aguirre, supra note 14, at 12.
70 Anderson, supra note 1, at 3.
71 See ECLAC Reports, supra note 15, at 1–3. For example, Central American countries
with greater degrees of privatization of electricity production have seen a dramatic decrease in the production of electricity from renewable sources like hydro, solar, and wind
power and an increase in the usage of fossil fuels. Id. at 2.
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izes its energy sector, the environmental consequences could be catastrophic.72 Yet, Costa Rica faces that very threat if its legislature ratiªes
CAFTA because of its liberal foreign investment rules.73
II. Discussion
Before discussing CAFTA, it is worth summarizing the current
problems with Costa Rica’s environmental laws regulating hydroelectric power and with privatization in order to better illustrate the problems that CAFTA threatens to create or exacerbate.74
A. Current Problems with Costa Rica’s Environmental Laws
Regulating Hydroelectric Power Production
First, Costa Rica’s laws do not stem the uncontrolled planning and
expansion of dams, even though its domestic electricity needs are almost completely met.75 In fact, Costa Rica currently produces enough
electricity to export to other Central America countries.76 Despite this,
over a hundred more hydroelectric plants are being planned both by
ICE and by private investors.77 Some of these new plants are being
permitted by the government despite the detriment being caused cu-
72 See, e.g., Mueren Peces en Aºuente del San Juan, La Prensa, Apr. 27, 2004, available at
http://www-ni.laprensa.com.ni/archivo/2004/abril/27/elmundo/ (demonstrating the failure of current environmental law to stop environmental disaster by hydroelectric dams
through the reporting of the second hydroelectric accident to affect the San Carlos river
in six months); see Álvaro Sánchez Córdoba, Descontrol Con Hidroeléctricas, Al Día (San José,
Costa Rica), Nov. 4, 2003, available at http://www.aldia.co.cr/ad_ee/2003/noviembre/
04/elnorte2.html [hereinafter Descontrol]; EarthJustice, supra note 20, at 1.
73 See CAFTA, supra note 20, arts. 10.3, 10.5, 10.6, 10.7, 10.16; EarthJustice, supra note
20, at 1. Cf. Final Environmental Review of the Dominican Republic—Central America—
United States Free Trade Agreement, Feb. 2005, at 2, available at http://www.ustr.gov/
trade_Agreements/Bilateral/CAFTA/Section_Index.html [hereinafter Final Environmental
Review] (ªnding that “CAFTA-DR can have positive environmental consequences in Central America . . . by reinforcing efforts to effectively enforce environmental laws . . . .”).
74 See infra notes 72–88 and accompanying text.
75 See Anderson, supra note 1, at 3; Descontrol, supra note 72; see, e.g., Álvaro Sánchez
Córdoba, Ríos Amenezados, Al Día, Apr. 27, 2004, available at http://www.aldia.co.cr/
ad_ee/2004/abril/27/elnorte0.html [hereinafter Ríos Amenezados].
76 Energy Information Administration, Central America, Electricity, http://www.eia.
doe.gov/emeu/cabs/Central_America/Electricity.html (last visited Feb. 22, 2006) (demonstrating that Costa Rica’s production of electricity exceeds its consumption); Salas, supra
note 58, at 1 (noting that Costa Rica exports its electricity surplus to Nicaragua and Honduras).
77 Aguirre, supra note 14, at 12; see Descontrol, supra note 72 (noting that there are
eighty hydroelectric projects planned on the San Carlos river alone).
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mulatively by these dams to local communities and the environment.78
For example, in October of 2003, less than a year after it began operations, the Peñas Blancas hydroelectric dam released a massive amount
of sedimentation, causing the deaths of thousands of ªsh and other
wildlife on the Peñas Blancas and San Carlos rivers and causing potentially irreversible environmental damage as well.79 Unfortunately, this is
not an isolated incident.80 Just two years earlier, the same event occurred at a privately owned hydroelectric dam on the San Lorenzo
River.81
At the heart of this problem is the fact that Costa Rican law does
not limit the number of dams per watershed, which, combined with
the law that severely restricts the amount of electricity that dams are
allowed to produce, results in too many dams on a watershed whose
individual environmental damage combines to create much more severe destruction.82 And there is no lack of incentive for private companies to continue constructing dams: the twenty-eight private hydroelectric plant owners collectively bring in thirty-ªve billion colones
annually, while ICE makes less than thirty-two billion.83 Moreover,
with both domestic and foreign consumption rates rapidly increasing,
there is no lack of customers.84 Yet the decision to continue constructing new dams to meet exportation demands is risky and possibly unwise, as both of Costa Rica’s major energy customers, Nicaragua and
Honduras, are also in the process of developing their own domestic
energy production systems (and thus wont need the electricity in the
future), not to mention their mutual poverty begs the question of
78 See Anderson, supra note 1, at 3; Eugenio Guido Pérez, Federación Costarricense
para la Conservación del Ambiente (FECON), ICE Impone, Comunidades se Oponen al
Proyecto Hidroeléctrico Pacuare, Diálogos Ambeintales, Oct. 2004, at 10.
79 Monteverde Group Circulates Petition Against Pocosol Dam, Tico Times (San José, Costa
Rica), May 7, 2004, available at http://www.ticotimes.net/dailyarchive/2004_05/Week1/
05_07_04.htm [hereinafter Monteverde Group].
80 See, e.g., Carlos Hernández P., Sedimento Mata Peces, La Nación (San José, Costa Rica),
Oct. 25, 2001, available at http://www.nacion.com/ln_ee/2001/octubre/25/pais13.html.
81 See id.; Ríos Amenezados, supra note 75 (noting that serious contamination by hydroelectric plants occurred within a six month period to the Platanar, Peñas Blancas, San Carlos, and part of the San Juan rivers).
82 See Anderson, supra note 1, at 3; Ríos Amenezados, supra note 75.
83 FECON, Monitoreo de Represas, Diálogos Ambientales, Oct. 2004, at 11 [hereinafter
Monitoreo de Represas]. As of March 11, 2006, 35 billion colones equaled approximately
$69,481,664, and 32 billion equaled approximately $63,526,092. See Yahoo Finance, supra
note 40.
84 See Salas, supra note 58, at 4.
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whether they will continue to be able to pay for the electricity.85 This
gap in the legal system has been recognized by the Costa Rican government, although legislation correcting it has yet to be passed.86
Another problem that both compounds the aforementioned issue
and creates its own problems surrounds the enforcement of environmental laws.87 For example, SETENA has approved some environmental impact studies that should have been rejected.88 More importantly, many observers feel that Costa Rica’s environmental laws are
simply not adequately enforced.89 One researcher noted that, while
interviewing environmental lawyers, a common response was, “In Costa
Rica, the problem is not that there are not laws, but rather that they are
not followed.”90 In addition, there has also been speculation about corruption within both SETENA and ICE, which inherently undermines
public conªdence in their effectiveness.91 All these environmental challenges, while signiªcant indeed, will pale in comparison to the far more
major problems CAFTA ratiªcation would create.92
B. An Overview of the Problems Threatened by CAFTA
Though Costa Rica would not submit to U.S. pressures to outright
privatize the state energy monopoly through CAFTA (though it did
agree to open the state insurance and telecommunications monopo85 See id. at 4, 5; U.S. Dep’t of State, Background Note: Nicaragua (2005), http://
www.state.gov/r/pa/ei/bgn/1850.htm (stating that Nicaragua is still the second poorest
country in the hemisphere and is highly dependant on foreign assistance); U.S. Dep’t of
State, Background Note: Honduras (2005), http://www.state.gov/r/pa/ei/bgn/1922.
htm (noting that Honduras is one of the poorest countries in Latin America and is in severe foreign debt).
86 See Anderson, supra note 1, at 3.
87 Michael Gelardi, Environment, Economy and Energy in Costa Rica: The Case of Petroleum
Exploration in the Province of Límon, Macalester Envtl. Rev., May 2001, http://www.
macalester.edu/environmentalstudies/MacEnvReview/costarica.htm.
88 See, e.g., id. (noting the controversy surrounding SETENA’s original approval of the
Harken environmental impact report to conduct exploratory drilling for oil, though that
approval was later overturned by the Costa Rican Supreme Court, and a second environmental impact report was rejected by SETENA).
89 Id.; Interview with Carlos Muñoz Brenes, Director, Monteverde Conservation
League, in Monteverde, Costa Rica ( July 15, 2004).
90 Gelardi, supra note 87.
91 See Federación Costarricense para la Conservación del Ambiente, Corrupción en
SETENA: Necesaria una Profunda Investigacion ( June 2004), available at http://www.
feconcr.org/contents/com-setena.htm (last visited Apr. 11, 2006); More Alcatel Kickbacks
Uncovered, Inside Costa Rica (San José, Costa Rica), Oct. 10, 2004, available at http://
insidecostarica.com/dailynews/2004/october/10/nac0.htm.
92 See Discussion infra Part B.
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309
lies), CAFTA contains other provisions that directly threaten Costa
Rica’s ability to maintain that monopoly regardless.93 At ªrst glance,
CAFTA appears to respect Costa Rica’s energy monopoly and environmental laws.94 The treaty recognizes a number of Costa Rica’s regulations governing the privatization of hydroelectric power production,
including Law 7200, and reafªrms Costa Rica’s right to regulate privatization as it sees ªt.95 It also restates the more important aspects of Law
7200, such as the limitation on private plants’ electricity production
and the requirement that they sell their electricity to ICE for redistribution.96 Furthermore, CAFTA’s Chapter 17, which concerns the environment, speciªcally stipulates that “a Party shall not fail to effectively
enforce its environmental laws, through a sustained or recurring course
of action or inaction, in a manner affecting trade between the Parties,
after the date of entry into force of this Agreement” and that, “the Parties recognize that it is inappropriate to encourage trade or investment
by weakening or reducing the protections afforded in domestic environmental laws.”97
1. Comparison to NAFTA and the Chapter 11 Threat
Many individuals, however, are concerned that CAFTA’s foreign
investment rules in Chapter 10 of the treaty are too similar to the North
American Free Trade Agreement’s (NAFTA) Chapter 11, which have
been used to wreak havoc on labor and environmental laws.98 The
terms of NAFTA’s Chapter 11 have been stretched to grant broad rights
to foreign investors that do not exist under domestic U.S. law, to attack
everything from domestic environmental and health regulations to the
routine operations of the court system.99
93 See Background Note: Costa Rica, supra note 8, ECLAC Reports, supra note 15, at
1; CAFTA, supra note 73, art. 10.3, 10.5, annex 10-C.
94 CAFTA, supra note 73, arts. 17.1, 17.2, 17.9, annex I-CR-32–33; see Final Environmental Review, supra note 73, at 15-17.
95 CAFTA, supra note 73, annex I-CR-32–33.
96 Id.
97 Id. art. 17.2.
98 See, e.g., Public Citizen, NAFTA Chapter 11: Corporate Cases, http://www.citizen.
org/trade/nafta/CH__11/ (last visited Apr. 11, 2006); Sierra Club, CAFTA’s Impact on
Central America’s Environment (2005), http://www.sierraclub.org/trade/cafta/cafta_
centralamerica.asp.
99 See Transcript of NOW with Bill Moyers: Trading Democracy: A Bill Moyers’ Special (PBS
television broadcast Feb. 1, 2002), available at http://www.pbs.org/now/transcript/transcript_tdfull.html; Public Citizen, NAFTA Chapter 11 Investor-to-State Cases: Bankrupting Democracy, at iv (2001), available at www.citizen.org/documents/ACF186.PDF
[hereinafter Bankrupting Democracy].
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Among other things, Chapter 11 grants investors the right to privately enforce the rights granted under NAFTA.100 And the cases arising out of Chapter 11 have demonstrated that large international businesses are ready and willing to use such a provision to undermine
domestic laws; moreover, some have even gone so far as to demand
monetary compensation for the enforcement of domestic environmental laws.101 At least twenty-four cases have been ªled under
NAFTA’s Chapter 11, in which corporations have collectively demanded over $14.3 billion from governments enforcing such domestic
laws.102
NAFTA also has a broad expropriation and compensation provision, which is a virtual “regulatory takings” provision, because it allows
a private investor to sue the government for compensation for any
action that affects the value of an investor’s property.103 In this respect, NAFTA provides foreign business with a substantial advantage,
as compensation for such action has already been repeatedly rejected
by the U.S. Supreme Court for domestic businesses.104
In light of the disastrous and unforeseen consequences of Chapter 11, the U.S. Congress passed legislation aimed at curbing similar
provisions in future treaties.105 In the Trade Act of 2002, Congress attempted to curb the kind of suits generated by NAFTA’s Chapter 11
by requiring that international agreements give foreign investors no
100 North American Free Trade Agreement, ch. 11, Dec. 17, 1992, 32 I.L.M. 605 [hereinafter NAFTA].
101 See Friends of the Earth, CAFTA and Foreign Investor Lawsuits: A Threat to
Environmental Standards (2004), available at http://www.foe.org/camps/intl/greentrade/CAFTAInvestmentFactsheet.pdf. Under NAFTA’s Chapter 11, a Canadian company,
Methanex, sued the U.S. government for nearly $1 billion. They alleged that California’s ban
of the toxic gasoline additive MTBE hurt the company’s proªts. The U.S. government is also
being sued for $50 million by another Canadian company, Glamis, a gold mining company,
because California put cleanup and remedial requirements on controversial mining operations that would harm the environment and destroy sacred Native American sites in the state.
Id.
102 Public Citizen, CAFTA by the Numbers: What Everyone Needs to Know (2004),
available at http://www.citizen.org/documents/CAFTAbyNumbers.pdf.
103 NAFTA, supra note 100, at 641–42; Bankrupting Democracy, supra note 99, at iv.
104 See Tahoe Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302,
330 (2002); Concrete Pipe & Prods. of Cal. v. Constr. Laborers Pension Trust for S. Cal.
508 U.S. 602, 645 (1993) (stating that the Supreme Court has repeatedly rejected the
claim that the mere diminution of property value, however serious, is sufªcient to demonstrate a government taking).
105 Trade Act of 2002, Pub. L. No. 107-210, § 2102 (codiªed at 19 U.S.C. § 3802
(2006)).
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311
“greater substantive rights” than U.S. citizens have under U.S. law and
speciªcally mentions standards regarding expropriation.106
Despite this law, CAFTA still maintains a chapter on foreign investment that is strikingly similar to NAFTA’s Chapter 11.107 There
are, however, a few notable differences between CAFTA’s Chapter 10
and NAFTA’s Chapter 11.108 For example, CAFTA explicitly stipulates
that “except in rare circumstances, nondiscriminatory regulatory actions by a Party that are designed and applied to protect legitimate
public welfare objectives, such as public health, safety, and the environment” are not expropriations.109
While the wording of the provision on investor suits is substantially
different from NAFTA, nonetheless, it appears to permit the exact
same kind of investor suits created by NAFTA regardless.110 And, even if
the expropriations clause is denied to them, unhappy investors can ªle
suit under the vaguely worded Minimum Standard of Treatment Provision.111 Thus, in essence, under CAFTA, foreign investors can still sue
Costa Rica before an international tribunal for any effects on its business interests caused by enforcing its laws and regulations.112 Clearly,
then, it is not surprising that there was a widespread outcry against
CAFTA during its negotiation from both Costa Rican and United States
citizens, many of whom feared NAFTA-like consequences.113
This fear is not without merit, as some foreign investors have already demonstrated that they are ready to take advantage of CAFTA’s
Chapter 10.114 The Harken oil drilling case illustrates this threat perfectly.115
In May of 2002, President Abel Pacheco announced a moratorium
on oil exploration and open-pit mining in Costa Rica in response to a
106 See 19 U.S.C. at § 3802(b)(3) (2006).
107 Compare CAFTA, supra note 73, art. 10.7, with NAFTA, supra note 98, ch. 11.
108 Compare CAFTA, supra note 73, art. 10.16, annex 10-C, with NAFTA, supra note 100,
ch. 11.
109 See CAFTA, supra note 73, annex 10-C(4)(b).
110 See id. art. 10.16; EarthJustice, supra note 20, at 1.
111 See CAFTA, supra note 73, art. 10.5; Friends of the Earth, supra note 101, at 2.
112 See CAFTA, supra note 73, art. 10.16; Friends of the Earth, supra note 101, at 1.
113 See José Eduardo Mora, Activists Pledge to Keep Up Fight Against U.S. Trade Deal, Inside
Costa Rica (San José, Costa Rica), Jan. 30, 2004, available at http://insidecostarica.com/
specialreports/costa_rica_trade_activists.htm; CAFTA: A View, supra note 16; John J. Sweeney,
A Bad Deal on Free Trade, Boston Globe, Mar. 21, 2005, at A11.
114 See infra notes 111–20.
115 See Mark Engler & Nadia Martinez, Harken v. Costa Rica, AlterNet, Mar. 26, 2004,
http://www.alternet.org/module/printversion/18258.
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widespread mobilization of the country’s environmentalists.116 Harken
Energy, a Texas-based oil company with close ties to President George
W. Bush, had previously obtained rights to search for crude oil in Costa
Rica.117 The company had intended to drill offshore until it failed its
environmental impact study two months prior.118 Despite the failed
study, Harken tried to sue the Costa Rica government for $12 million in
reparations for its aborted operation.119 The Costa Rican government
declined to accept an out-of-court settlement, and the company then
decided to use international agreements, speciªcally through the
World Bank’s International Center for the Settlement of Investment
Disputes, to support a new $57 billion claim for the proªts it projected
it would have earned if the venture had gone through.120 The Costa
Rican government refused to submit to international arbitration or to
recognize any decision made by the World Bank body.121 Unable to
compel Costa Rica to submit to international arbitration, Harken withdrew its claim a few days later and then tried again to reach an out-ofcourt settlement.122 Those talks fell through, though it has been speculated that Harken will try once more to force international arbitration.123 Although Costa Rica successfully avoided arbitration with Harken, if CAFTA had been in force then, the result would likely have been
quite different.124
So what does CAFTA mean for Costa Rica’s waterways and the
hydroelectric plants exploiting them? First, it means that, like Harken,
companies that are impeded by Costa Rica’s environmental laws are
more likely to sue the Costa Rican government under Chapter 10 for
any investment they had already made in anticipation of constructing
a plant or dam, or even, as Harken did, to recoup expected proªts.125
Regardless of the merits of such cases, their existence alone is likely to
have a chilling effect on the creation and enforcement of environmental laws protecting those waterways; Costa Rica, as a developing
116 Id.
117 Id.
118 Id.
119 Id.
120 Id.
121 Engler & Martinez, supra note 115.
122 Id.
123 Id.
124 See id.; CAFTA, supra note 73, art. 10.5, 10.7, 10.16.
125 See Engler & Martinez, supra note 115; see, e.g., Friends of the Earth, supra note
101, at 1–2 (noting examples of corporations that took governments to court using similar
provisions in NAFTA’s Chapter 11).
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313
nation, cannot afford to effectively litigate every potential case nor
can it afford to pay out a large verdict if it loses.126
Moreover, while CAFTA does contain provisions permitting foreign investors to sue on their own behalf, citizens of Costa Rica (or any
Central American party) may only submit complaints to the Secretariat
alleging that the government has failed to enforce its environmental
laws, though there are no clear mandates to ensure that environmental
laws are enforced, nor does it provide citizens access to the court system
if that avenue fails.127 And even if a situation arose in which Costa Rica
was found to have violated Chapter 17 by not enforcing its environmental laws or the environmental provisions in CAFTA, CAFTA’s enforcement provisions for environmental laws are weak and ineffective.128 For example, while foreign investors can seek unlimited
damages in their suits under CAFTA, ªnes against the government for
failing to enforce its environmental laws are capped at $15 million annually.129
III. Analysis
Before discussing Costa Rica’s options to protect its waterways if
CAFTA is passed, it is worth reviewing one option that seems attractive
at ªrst glance but does not appear viable on closer analysis.130
A. Repealing Law 7200: A Non-Option for Costa Rica
One option that initially appears attractive is for Costa Rica to repeal Law 7200, thereby forbidding all private companies from participating in hydroelectric power production.131 This may, however, constitute a government taking prohibited by Article 45, because although
the private owners do not own the rivers on which their plants operate,
this would effectively force them to relinquish any investment they
made in construction and maintenance of the plant and force them off
that property.132
126 See Engler & Martinez, supra note 115; EarthJustice, supra note 20.
127 See CAFTA, supra note 73, art. 17.7, 17.8.
128 See Sierra Club, supra note 98. See generally CAFTA, supra note 73, art. 17.1, annex
17.9.
129 CAFTA, supra note 73, art. 20.17.
130 See infra III.A.
131 See generally Law 7200, supra note 47.
132 See Ley de Aguas, supra note 22, arts. 1, 2. U.S. Dep’t of State, Costa Rica: 2005
Investment Climate Statement (2005), available at http://www.state.gov/e/eb/ifd/
2005/42003.htm (“Article 45 of the Constitution of Costa Rica stipulates that no property
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The government’s ability to expropriate property became much
more difªcult after passage of the 1995 Law 7495, which stipulates that
expropriations can take place only after full and prior payment is made
to the affected property owner.133 This restriction is signiªcant because
the Costa Rican government most likely cannot afford to compensate
all of the current private hydroelectric companies if a court determines
that repeal of Law 7200 constitutes a taking.134
B. Possible Options to Minimize the Environmental Ramiªcations
Threatened by CAFTA
In order to minimize CAFTA’s potential negative consequences
for its waterways and hydroelectric power production, there are a number of things Costa Rica can and should do.135 The ªrst, most obvious
solution would be to refuse to ratify the treaty so that it does not take
effect. After all, if Costa Rica ratiªes CAFTA and then is sued by a foreign investor who claims ªnancial harm caused by the enforcement of
Costa Rica’s environmental laws, it cannot then argue that its domestic
environmental laws are superior to CAFTA’s Chapter 10 foreign investor provisions, because Article Seven of Costa Rica’s Constitution states
that all ratiªed international treaties are superior to national laws. 136 By
refusing to ratify, Costa Rica can ensure the enforceability of its environmental laws to foreign investors.137
If Costa Rica does decide to ratify CAFTA, though, there are
other ways of protecting its waterways.138 First, the Costa Rican government must start effectively enforcing its environmental laws, which
includes aggressively prosecuting known violators.139 One highly publicized case of a power plant violating the environmental laws was the
aforementioned Peñas Blancas hydroelectric plant disaster, in which
can be expropriated from a Costa Rican or foreigner without prior payment and demonstrable proof of public interest.”).
133 U.S. Dep’t of State, supra note 132. Also, Article 45 of the Costa Rican Constitution grants equal rights and protection to private property, whether it is owned by nationals or foreigners. Id.
134 See generally Engler & Martinez, supra note 115 (stating that Costa Rica’s annual
GDP is around $17 billion, and the government’s entire annual budget is only around $5
billion).
135 See infra III.B.
136 Gelardi, supra note 87.
137 See id.
138 See infra notes 135–81 and accompanying text.
139 See Interview with Carlos Muñoz Brenes, supra note 89.
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315
the dam dumped an immense amount of sedimentation into the
Peñas Blancas and San Carlos rivers in 2003, killing thousands of ªsh
and other wildlife.140 The Judicial Investigation Organization (O.I.J.)
was ordered by the Ministry of Environment and Energy (MINAE)141
to investigate the cause of the contamination.142 It found ICE responsible and ordered it to pay reparations for the contamination and ecological damage incurred.143 ICE accepted responsibility for the harm
caused and offered to pay one million dollars in reparations.144
While this particular offense was prosecuted and ICE was eventually honest enough to accept responsibility for its actions, many other
dams, both private and public, are allowed to continue illegally contaminating Costa Rica’s rivers because the government is not holding
them accountable for these crimes.145 If, after ratifying CAFTA, Costa
Rica prosecutes violations by dams owned by foreign investors without
concurrently increasing its prosecutions of locally owned violators, foreign investors will likely attempt to use Chapter 10 to annul any judgment against them, arguing that it was discriminatory.146 Those companies certainly have the ªnancial resources to ªght that legal battle as
long as possible in order to try to make the government back down.147
Also, before ratifying CAFTA, Costa Rica should pass legislation
restricting privatization.148 An example of such legislation would be a
law amending Law 7200 that would limit privatization to its current
capacity, such that even if ICE continues to construct more public facilities, no more private facilities would be allowed.149 Such a law
140 See Monteverde Group, supra note 79.
141 Ministerio de Ambiente y Energía.
142 Carlos Hernández, Muerte de Peces Indigna a Vecinos, La Nación (San José, Costa
Rica), Nov. 3, 2003, available at http://www.nacion.com/ln_ee/2003/noviembre/03/pais5.
html [hereinafter Muerte de Peces]; Carlos Hernández, Investigan Masiva Muerte de Peces, La
Nación (San José, Costa Rica), Apr. 26, 2004, available at http://www.nacion.com/
ln_ee/2004/abril/26/pais5.html [hereinafter Investigan Masiva].
143 Muerte de Peces, supra note 142; Investigan Masiva, supra note 142.
144 Investigan Masiva, supra note 142; Ríos Amenezados, supra note 75.
145 Álvaro Sánchez, Miles de Peces Asªxiados, Al Día (San José, Costa Rica), Apr. 27,
2004, available at http://www.aldia.co.cr/ad_ee/2004/abril/27/nacionales10.html; Ríos
Amenezados, supra note 75 (noting that over the last three years there have been numerous
documented cases of river contamination, only some of which have been investigated and
prosecuted).
146 See generally CAFTA, supra note 73, art. 10.3; Friends of the Earth, supra note 101,
at 1–2.
147 See generally Engler & Martinez, supra note 115; Friends of the Earth, supra note
101, at 1–2.
148 See generally Law 7200, supra note 47.
149 See id.
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would restrict the percentage of total domestic electricity production
that private facilities may permissible produce beyond what Law 7200
currently allows.150 This law, however, would have to be passed before
CAFTA is ratiªed, because CAFTA’s Chapter 10 forbids national companies to be treated more favorably than foreign investors.151 Consequently, since there are only twenty-eight private hydroelectric companies, only a few of which are controlled by foreign investors, such a
restriction would almost certainly be successfully challenged if it were
passed after CAFTA was ratiªed.152
Another positive reform that Costa Rica should enact prior to
CAFTA’s ratiªcation is legislation that closes the gaps in its current law
that permit over-exploitation of watersheds.153 A law that restricts the
number of plants, both public and private, that are permitted to exploit
a watershed could easily accomplish this goal.154 Costa Rica must pass
such a law before CAFTA is ratiªed and foreign investors begin investing in new plants that crowd these watersheds.155 If it does not act
promptly, it risks environmental collapse of these watersheds.156 Further, if Costa Rica waits until after ratiªcation to pass this type of legislation, foreign investors can be expected to sue Costa Rica under Chapter 10 in much the same way that companies have sued Canada, the
United States, and Mexico under NAFTA’s Chapter 11 for postratiªcation environmental laws that hinder their business or proªts.157
It is also important to note that CAFTA recognizes that Costa Rica
retains full rights to decide the degree of privatization of its state energy
monopoly.158 Therefore, if Costa Rica ratiªes CAFTA, even if it chooses
not to pass preemptive legislation further restricting privatization, it
should not pass further legislation expanding privatization of energy
production.159 Greater privatization will mean more attempts by for150 See id.
151 CAFTA, supra note 73, art. 10.3.
152 Id.; Monitoreo de Represas, supra note 81, at 11.
153 See generally Anderson, supra note 1, at 3; Descontrol, supra note 72; Ríos Amenezados,
supra note 75.
154 See generally Anderson, supra note 1, at 3; Descontrol, supra note 72; Ríos Amenezados,
supra note 75.
155 See CAFTA, supra note 73, art. 10.3, 10.5; Aguirre, supra note 14, at 12 (noting that
multinational organizations are aggressively pushing to get full access to Central America’s
energy sectors through various international agreements).
156 Ríos Amenezados, supra note 75.
157 CAFTA, supra note 73, art. 10.3, 10.5; Friends of the Earth, supra note 101, at 1–2.
158 See CAFTA, supra note 73, annex I-CR-32–33.
159 See generally ECLAC Reports, supra note 15, at 1–3 (pointing out that privatization in
other parts of Central America has created signiªcant problems).
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317
eign investors to participate in hydroelectric power production and
more suits against the government by disgruntled foreign investors.160
In order to minimize such suits, Costa Rica must, at a minimum, maintain the status quo on legal restrictions of its energy monopoly.161
Another option for Costa Rica is to create legal incentives to encourage private investors, both foreign and domestic, to seek out
other forms of electricity production than hydropower.162 For example, Costa Rica is Latin America’s largest producer of wind power, although most of its wind potential remains untapped.163 So Costa Rica
could try to curb over-exploitation of its rivers by offering incentives
for private companies to invest in the development of wind power instead.164 In fact, Costa Rica has already experienced a positive response from private individuals and companies to similar government
incentives.165
One example that the government can use as a model is a program already in place called Pago de Servicios Ambientales (PSA).166
Since 1996, the Costa Rican government has offered PSAs, through
the regulatory body Fondo Nacional de Financimiento Forestal de
Costa Rica (FONAFIFO) to compensate private landowners for,
among other things, both conservation and reforestation of their
property.167 The success of these subsidies is surprising given that they
are fairly modest: roughly $64 per hectare of private property conserved each year, or about ¢32.000.168 Similarly, the government could
offer a minimal subsidy or other incentive to private companies that
choose to invest in the development of wind power instead of hydropower.169 The government, however, should immediately review its
legislation regulating wind power to make sure that, should private
160 See generally Engler, supra note 115; Friends of the Earth, supra note 101, at 1–2.
161 See generally Engler, supra note 115; Friends of the Earth, supra note 101, at 1–2.
162 Fondo Nacional de Financimiento Forestal de Costa Rica, Servicos Ambientales,
http://www.fonaªfo.com/paginas_espanol/servicios_ambientales/servicios_ambientales.h
tm [hereinafter FONAFIFO] (last visited Apr. 11, 2006).
163 Anderson, supra note 1, at 3.
164 See generally Anderson, supra note 1, at 3; FONAFIFO, supra note 162.
165 FONAFIFO, supra note 162.
166 Id. The acroynm stands for Payment for Environmental Services. See id.
167 See FONAFIFO, supra note 162.
168 Email from Carlos Muños Brenes, Director, Monteverde Conservation League, to
author ( Jan. 19, 2006, 14:06:59 EST) (on ªle with author).
169 See FONAFIFO, supra note 162; Anderson, supra note 1, at 3; but see Karl Royce,
What Chance Latin America?, Windpower Monthly, May 2002, available at http://www.
windpower-monthly.com/may02/leader.htm (arguing that Costa Rica will never have a
windpower industry because of its small economy).
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wind power operations become a successful alternative to hydropower, the industry is not permitted to get out of control or destroy
the surrounding environment.170
C. Potential Options to Minimize the Threat of Foreign Investor Suits
Threatened by CAFTA’s Chapter 10
Finally, if Costa Rica does ratify CAFTA and ªnds itself sued by
foreign investors for enforcing its environmental laws, its Constitution
provides a potential solution.171 As mentioned before, Articles 46 and
50 of Costa Rica’s Constitution guarantee its citizens a right to a
healthy and ecologically balanced environment, and the government
is obligated to enforce that guarantee.172 This is clearly in direct
conºict with any interpretation of CAFTA that undermines its environmental laws to the beneªt of foreign investors.173 Before Costa
Rica’s Legislative Assembly can pass any treaty into law, the Supreme
Court of Justice, which handles all constitutional legal matters, must
be consulted regarding the compatibility of the treaty with the country’s Constitution.174 Therefore, Costa Rica could argue that CAFTA is
constitutionally compatible, otherwise it would not have passed the
Supreme Court of Justice, and as such the vaguer provisions of Chapter 10 most likely to be relied on by foreign investors cannot be interpreted contrary to Costa Rica’s constitutional protections.175 Also, by
arguing that any conºict of interpretations favors Costa Rica’s Constitution, Costa Rica can justify the enforcement of its environmental
laws over any apparent conºict with CAFTA, as their enforcement is
clearly necessary to fulªll its obligation to provide its citizens with an
ecologically balanced environment under Article 46.176
170 See Culture Change, The Most Frequently Asked Questions About Wind Energy,
http://www.culturechange.org/wind.htm (last visited Apr. 11, 2006). Some of the negative
environmental impacts of windpower include erosion, bird kills, noise, and the need for an
open space, which in Costa Rica could create clear cutting of forest land. See id. See generally
Anderson, supra note 1, at 3.
171 See generally Constitución, supra note 23.
172 See id.
173 Compare Constitución, supra note 23, with CAFTA, supra note 73, art. 10.3, 10.5,
10.7; see also Friends of the Earth, supra note 101, at 1–2.
174 See International Humanitarian Law National Implementation, General Comment,
Costa Rica, http://www.icrc.org/ihl-nat.nsf/0/430cd0a214d63d40c1256b190033d202?OpenDocument (last visited Apr. 11, 2006) [hereinafter IHLNI].
175 See generally CAFTA, supra note 73, art. 10.3, 10.5, 10.7; IHLNI, supra note 174.
176 See generally Constitución, supra note 23.
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319
Costa Rica could also look for support to its neighbor Nicaragua,
which faced this exact same problem when it considered ratifying
CAFTA.177 Nicaragua determined that a number of CAFTA’s provisions were in direct conºict with its Constitution.178 Nicaragua holds
its own Constitution supreme over international law, and it decided
that it would almost certainly have to alter its Constitution to comply
with CAFTA before ratiªcation if the conºicting CAFTA provisions
were to be enforceable in Nicaragua.179 Similarly, Costa Rica could
argue that the fact that it has chosen not to alter its Constitution indicates that any ambiguous provisions must be interpreted as complying
with its Constitution.180
Finally, Costa Rica can turn to CAFTA itself as a source of support.181 As aforementioned, both Chapter 17 and Chapter 10 have
provisions respecting environmental laws.182 Costa Rica can utilize
these provisions to counter any Chapter 10 foreign investor suit trying
to undermine its environmental laws.183 Chapter 17 is the most helpful provision for Costa Rica in this respect because it states that it is
inappropriate to encourage trade or investment by weakening domestic environmental laws.184 Costa Rica should also utilize Chapter 10,
Article 11, which places priority of measures taken “otherwise consistent” with the chapter to protect environmental issues over all other
provisions in the chapter.185 Whichever provisions Costa Rica does
decide to use in its defense, it should strongly assert its rights under
those provisions to assure that whatever value those provisions have to
protect the environment is not permitted to be nulliªed through litigation as the environmental provisions in NAFTA have been.186
177 See generally Jeannette Chávez Gómez et al., CAFTA Constitutional Analysis
(2004), available at http://www.citizenstrade.org/pdf/quixote_nicacaftachallenge_07012004.
pdf.
178 See id.
179 See id.
180 See id.
181 See generally CAFTA, supra note 73, art. 17.1-Annex 17.9; cf. Sierra Club, supra note
98 (arguing that CAFTA’s Chapter 17 environmental provisions are so weak that they provide only minimal protection).
182 See CAFTA, supra note 73, arts. 10.9, 10.11, 17.1, 17.2, 17.4.
183 Cf. Sierra Club, supra note 98. See generally CAFTA, supra note 73, arts. 10.9, 10.11,
17.1, 17.2, 17.4.
184 See generally CAFTA, supra note 73, art. 17.2.
185 See id. art. 10.11.
186 See also Bankrupting Democracy, supra note 99, at iv (noting numerous cases where
investor rights took precedence over environmental protection). See generally CAFTA, supra
note 73, arts. 10.9, 10.11, 17.1, 17.2, 17.4; NAFTA, supra note 100, at 640, 642.
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Conclusion
Costa Rica’s waterways are arguably its most valuable resource.187
Although the beneªt and burdens analysis clearly tips in favor of developing its hydroelectric resources, Costa Rica must understand that
these waterways also serve a number of other essential functions, including sustaining the rainforests that now bring the country more
revenue in eco-tourism than do its two traditional exports, bananas or
coffee.188 Costa Rica has much stronger environmental laws protecting its waterways and regulating hydroelectric power than many of its
neighbors.189 And Costa Rica’s Constitution, through Articles 46 and
50, promises much in the way of a healthy environment.190 These laws
are not, however, sufªcient to prevent private investors from exploiting Costa Rica’s waterways.191
CAFTA promises to wreak further havoc on Costa Rica’s unique
resources through the suppression of its environmental laws.192 In order to minimize the anticipated negative consequences on its environment and environmental laws, Costa Rica must engage in an aggressive campaign to protect its waterways.193 It would be unwise for
Costa Rica to completely eliminate privatization because such a measure would, most likely and unfortunately, be considered an expropriation of currently existing private plants.194 It can and should, however,
either further restrict private hydroelectric power production or, at
the very least, pass legislation restricting it to its status quo.195
The Costa Rican legislature must also immediately address the
loophole in its current environmental law that permits over-exploitation of its watersheds.196 In addition, it should create minimal legal incentives for private investors to invest in other underutilized energy
resources like wind power.197 Moreover, Costa Rica must start to aggres187 Anderson, supra note 1, at 3.
188 Rob Rachowiecki, Lonely Planet: Costa Rica 25 (2002). In fact, today over one
million ecotourists visit Costa Rica each year. Id.
189 Sierra Club, supra note 98.
190 See Constitución, supra note 23.
191 See Sierra Club, supra note 98 (noting that Costa Rica is often hailed as a country
with strong environmental law, but that even here their environmental laws are either
conºicting with one another or there is no ªnancial support for new agencies or cooperative measures).
192 See EarthJustice, supra note 20.
193 See infra notes 192–97.
194 See supra notes 131, 135, 145.
195 See ECLAC Reports, supra note 15.
196 See Anderson, supra note 1, at 3.
197 See id.
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321
sively prosecute known domestic violators of its current environmental
laws to prevent foreign investors from claiming discrimination in lawsuits should CAFTA be ratiªed.198
Finally, in the event CAFTA is ratiªed and Costa Rica ªnds itself
locked in litigation with a foreign investor over the enforcement of its
environmental laws, Costa Rica should argue that its Constitution is
consistent with CAFTA, such that any asserted conºict demands an
interpretation favoring the environmentally protective mandates of
Articles 50 and 46.199
CAFTA does not have to mean the death of Costa Rica’s precious
waterways and surrounding environments, but in order to avoid that
fate, Costa Rica’s government must act proactively to anticipate and
overcome opportunistic foreign investors.
198 See Interview with Carlos Muñoz Brenes, supra note 89. See generally CAFTA, supra
note 73, art. 10.3.
199 See Constitución, supra note 23; Chávez Gómez, supra note 177.
INSERTED BLANK PAGE
INTERNATIONAL SPAM REGULATION &
ENFORCEMENT: RECOMMENDATIONS
FOLLOWING THE WORLD SUMMIT ON
THE INFORMATION SOCIETY
Meyer Potashman*
Abstract: Unsolicited bulk e-mail, or “spam,” is often called the scourge
of the information age. Because of the cross-border nature of the Internet, both governments and the private sector are facing many challenges in combating cross-border spam. In recent years, through the
World Summit on the Information Society (WSIS), the international
community has committed itself to ªght spam on a global level through
increased cooperation and enforcement of spam laws. This Note evaluates many of the issues involved in preventing cross-border spam, discusses the latest methods of enforcement in both the private and public
sectors, and recommends an approach to the problem in light of the
commitments made at WSIS.
Introduction
Unsolicited bulk e-mail, or “spam,” is widely considered to be the
scourge of the information age.1 Millions of unwanted e-mail messages
sent every day affect virtually everyone with an e-mail account.2 These
spam messages cost Internet Service Providers (ISPs) and Internet users millions of dollars due to lost productivity and technical resources.3
To some extent, the rise of spam has slowed the spread of the Internet
* Meyer Potashman is a Production Editor of the Boston College International & Comparative Law Review.
1 U.N. Info. & Commc’n Techs. Task Force, Global Forum on Internet Governance—Informal Summary 11 (2004), available at http://www.unicttaskforce.org/perl/
documents.pl?do=download;id=565.
2 See, e.g., Robert Horton, Int’l Telecomms. Union, ITU WSIS Thematic Meeting
on Countering Spam, Chairman’s Report ¶ 11 (2004), available at http://www.itu.int/
osg/spu/spam/chairman-report.pdf; see also Claudia Sarrocco, ITU WSIS Thematic
Meeting on Countering SPAM: Spam in the Information Society: Building Frameworks for international Cooperation 4 (2004), available at http://www.itu.int/osg/
spu/spam/contributions/Background%20Paper_Building%20frameworks%20for%20Intl
%20Cooperation.pdf (noting that spam represents up to 76% of all e-mail trafªc).
3 Sarrocco, supra note 2, at 4.
323
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and related technologies in the developing world as well.4 The public
and private sectors have proposed many technical and legal approaches
to combating spam.5 One key obstacle in this ªght, however, is the political boundaries between independent states.6 The Internet, of
course, has no boundaries, so spam can easily travel from one country
to the next, making it difªcult to track down its senders.7 In recent
years, several countries have passed laws criminalizing spam, but without international cooperation, it is difªcult to enforce these laws
against foreign spammers.8
The United Nations has convened a two-part summit meeting to
address this and other Internet-related issues.9 Known as the World
Summit on the Information Society (WSIS), the summit ªrst convened in Geneva in 2003 and met again in November 2005 in Tunis.10
At the various summit meetings, the international community committed itself to the ªght against spam.11 This Note will explore the
anti-spam options that the international community discussed in these
forums, as well as some steps for continuing the ªght against spam in
the future. Part I provides some background to the spam problem,
4 See Contribution to the ITU WSIS Thematic Meeting on Countering Spam From
Kenya, Sudan, Tanzania And Zambia (2004), available at http://www.itu.int/osg/spu/
spam/contributions/Developing%20countries_contribution.pdf [hereinafter Developing
Nations Contribution].
5 See generally Horton, supra note 2, ¶¶ 16–34.
6 See John Magee, The Law Regulating Unsolicited Commercial E-Mail: An International Perspective, 19 Santa Clara Computer & High Tech. L.J. 333, 378 (2003) (“The jurisdictional problems created by the proliferation of transborder unsolicited e-mail communications represent what may prove to be an insurmountable hurdle.”).
7 See Sarrocco, supra note 2, at 17.
8 For a summary of international spam laws, see David Sorkin, Spam Laws, http://
www.spamlaws.com (last visited Mar. 7, 2006). For a summary of the jurisdictional challenges in enforcing spam, see Philippe Gérard, Int’l Telecomms. Union, ITU WSIS
Thematic Meeting on Countering Spam: Multilateral and Bilateral Cooperation
to Combat Spam 10–12 (2004), available at http://www.itu.int/osg/spu/spam/contributions/Background%20Paper_Multilateral%20Bilateral%20Coop.pdf.
9 See Wendy M. Grossman, Nations Plan for Net’s Future, Wired News, Oct. 11, 2004,
http://www.wired.com/news/technology/0,1282,65254,00.html.
10 Hans Klein, Understanding WSIS: An Institutional Analysis of the UN World
Summit on the Information Society 3 (2003), available at http://www.ip3.gatech.edu/
images/Klein_WSIS.pdf.
11 World Summit on the Info. Society, Declaration of Principles (WSIS Doc.
No. WSIS-03/GENEVA/DOC/0004) (2003) ¶ 37, available at http://www.itu.int/dms_
pub/itu-s/md/03/wsis/doc/S03-WSIS-DOC-0004!!PDF-E.pdf [hereinafter Declaration
of Principles] (noting the Geneva summit’s commitment to address the spam issue);
World Summit on the Information Society, Tunis Agenda for the Information
Society (WSIS Doc. No. WSIS-05/TUNIS/DOC/6 (Rev. 1)-E) (2005) ¶¶ 41–42, available
at http://www.itu.int/wsis/docs2/tunis/off/6rev1.html [hereinafter Tunis Agenda].
2006]
International Spam Regulation & Enforcement
325
attempted technical and legal solutions, and the current state of international spam cooperation. Part II discusses the various issues involved in deªning spam, global “Internet governance,” the crafting of
spam laws, and the compromises inherent in international solutions
to the problem. Finally, Part III suggests some recommendations on
how to put in action the goals of WSIS by structuring a ºexible yet
effective international anti-spam regime.
I. Background & History
During the relatively short history of the Internet, spam has
grown into a major problem, prompting action by many different parties and institutions around the world.12
A. Spam’s Harmful Effects
Though people deªne spam in several different ways, in general,
people consider many kinds of unwanted e-mail to be spam.13 Spam
ranges from unsolicited yet legitimate sales pitches, to pitches for objectionable yet possibly legitimate services such as pornography and other
sexually-explicit materials.14 Spam also encompasses a wide range of
advertisements for pharmaceuticals of questionable origin, mortgages,
pyramid schemes, and other goods and services, many of which are
purely fraudulent.15 Some of the more damaging types of spam are
those that include computer viruses and identity-theft schemes, which
attempt to induce recipients to reveal sensitive personal information.16
The spam problem has increased dramatically throughout the
world in recent years.17 Spam is estimated to account for around 76%
of all e-mail trafªc.18 It is estimated to cost Internet users worldwide
around $10 billion per year, which excludes productivity and direct
ªnancial losses caused by viruses and identity theft.19
12 See Am. Civil Liberties Union v. Reno, 929 F. Supp. 824, 830–34 (E.D. Pa. 1996)
(providing an overview of the history of the Internet); Gérard, supra note 8, at 3–6.
13 See David E. Sorkin, Technical and Legal Approaches to Unsolicited Electronic Mail, 35
U.S.F. L. Rev. 325, 327–35 (2001).
14 Id. at 336; Magee, supra note 6, at 339.
15 For an overview of types of spam, see VirusList.com, Types of Spam, http://www.viruslist.com/en/spam/info?chapter=153350533 (last visited Mar. 7, 2006).
16 See Sarrocco, supra note 2, at 9–10.
17 See Gérard, supra note 8, at 4.
18 Sarrocco, supra note 2, at 4.
19 Id.
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The problem with spam is that it is proªtable, largely because its
costs are shifted from the spammers to their recipients.20 Unlike direct
postal mail, where the sender pays for each message, the cost to the
sender of each e-mail is negligible.21 Thus, spammers can market their
wares to millions of people with minimal cost to them.22 They only
need to convert a small fraction of their messages into sales to reap a
signiªcant proªt.23 Their recipients and ISPs, however, bear the costs in
several ways.24 Users lose time, and sometimes access fees, “sifting
through, identifying, and deleting the messages,” as well as in attempting to unsubscribe from spam lists or updating their spam ªlters.25
Similarly, ISPs suffer as their servers and network capacity become
clogged with spam, forcing them to expand their resources to account
for the spam on their networks.26 An increase in spam on an ISP’s network also affects that ISP’s goodwill and could result in customer turnover as customers abandon their spam-clogged e-mail accounts for alternative addresses with other providers.27 These costs ultimately are
shifted to consumers in higher access fees.28 In addition to the ªnancial
costs of spam, the plethora of sexually explicit spam raises concerns for
parents who do not want their children exposed to such messages.29
Spam has also had a particularly harsh effect on developing
economies, which are still in the process of building their Internet and
communications infrastructure.30 In sub-Saharan Africa, for example,
Internet access is often satellite-based and very expensive.31 As this expensive bandwidth is clogged with spam, it becomes difªcult for ISPs to
justify continuing their services.32 To compound this problem, some
20 Magee, supra note 6, at 338; Ho Khee Yoke & Lawrence Tan, Int’l Telecomms. Union, ITU WSIS Thematic Meeting on Countering Spam: Curbing Spam via Technical
Measures: An Overview 3 (2004), available at http://www.itu.int/osg/spu/spam/contributions/Background%20Paper_Curbing%20Spam%20Via%20Technical%20Measures.pdf.
21 Magee, supra note 6, at 338.
22 Yoke & Tan, supra note 20, at 4.
23 See id.
24 See generally Magee, supra note 6, at 338–39 (explaining how costs are shifted away
from spammers).
25 Id. at 338.
26 See id. at 339.
27 See id. (noting that spam may cause ISPs to lose business and suffer reputation damage “due to continued clogged bandwidth”).
28 Id.
29 See id.
30 See Developing Nations Contribution, supra note 4.
31 Id.
32 Id.
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327
users would rather not pay for expensive Internet services at all if the
bulk of what they pay for is wasted on spam.33
B. The Most Damaging Types of Spam
The most damaging spam, which causes considerable harm to the
world’s economies, consists of those messages that spread viruses,
frauds, and scams.34 These messages turn spam from a mere annoying
marketing method into a more damaging tool to invade recipients’ privacy and to separate them from their money.35 Many messages are sent
through computer viruses, such as the infamous “Melissa” virus, that
automatically resend messages to people on a recipient’s contact list.36
Sometimes viruses turn computers into “zombies,” enabling a spammer
to take advantage of an innocent user’s Internet connection and helping the spammer disguise his or her identity.37 It is estimated that
“zombies” are responsible for a high percentage of all spam sent.38 Ageold scams, such as the “Nigeria Letter” e-mail, that purport to offer
large sums of money to recipients in exchange for sending an initial
deposit are also very prevalent forms of spam.39
Another common spam threat is known as “phishing.”40 This is
an identity theft method through which spammers attempt to obtain
user’s passwords by sending fraudulent e-mails purporting to be from
ªnancial service providers.41 These e-mails generally misdirect recipients to a false website where users are prompted to reveal sensitive
information that the senders can then use to liquidate the recipient’s
assets.42
33 Id.
34 See Sarrocco, supra note 2, at 9–10.
35 See id. at 9.
36 See Magee, supra note 6, at 339–40; Yoke & Tan, supra note 20, at 3.
37 Yoke & Tan, supra note 20, at 5.
38 Grant Gross, Is CAN-SPAM Working?: One Year After It Went into Effect, Many Say the Nation’s Antispam Law Is Ineffective, PC World.com, Dec. 28, 2004, http://www.pcworld.com/
news/article/0,aid,119058,00.asp (stating that over a three week period in late 2004, a
study found that 69% of all spam sent was sent through “zombie” computers).
39 Sarrocco, supra note 2, at 9.
40 See id. at 9–10. See generally Dave Brunswick, Tumbleweed Commc’ns AntiPhishing Working Group, The Rise of Phishing (2004), available at http://www.itu.int/
osg/spu/spam/presentations/BRUNSWICK_Session%202.pdf.
41 Sarrocco, supra note 2, at 9–10.
42 Id.
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C. Spam as an International Issue
The spam problem has many international dimensions.43 Fundamentally, the Internet does not have any national boundaries.44 At
its core, it is a mechanism for connecting multiple computers and is
intended as a loose and virtually ungovernable network.45 The only
component of the Internet that arguably corresponds to states is what
is known as the Country Code Top-Level Domain (ccTLD) system.46
This is the system that assigns the last section of Internet addresses to
names corresponding to countries (such as www.bbc.co.uk for the UK,
or www.amazon.fr for Amazon’s French site).47
It is generally impossible to determine a spam’s originating country based on its sender’s e-mail address.48 This creates a system in
which any national spam laws are difªcult to enforce.49 Even if plaintiffs and prosecutors can locate a spammer or his service provider,
they often lack jurisdiction to bring these defendants to court.50 Further, even if a country would be willing to extend jurisdiction beyond
its national boundaries, it can be very difªcult to enforce a judgment
against such a defendant.51
D. Technical Approaches to Combating Spam
As the spam problem continues to grow, many organizations have
developed anti-spam technologies.52 The technical problems with dealing with spam are largely related to the minimal security built into e-
43 See generally id.
44 Id. at 17.
45 See Vinton G. Cerf, “First, Do No Harm,” in Internet Governance: A Grand Collaboration 13, 14 (Don MacLean ed., 2004), available at http://www.unicttaskforce.org/
perl/documents.pl?do=download;id=778 [hereinafter Internet Governance] (noting
that “the Internet has evolved openly, freely,” and without government intrusion).
46 See generally Michael Geist, Governments and Country-Code Top Level Domains: A Global
Survey, in Internet Governance, supra note 45, at 282 (discussing the role of national
governments in managing their ccTLDs).
47 Id.
48 See Sarrocco, supra note 2, at 17 (noting that many e-mail addresses have no geographic identiªer and even when messages are sent from an address with a ccTLD, that
does not provide any indication about the location from which the message was sent).
49 Id.
49 Id.
50 Id.
51 Id.
52 See also Sorkin, supra note 13, at 344–51. See generally Yoke & Tan, supra note 20.
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329
mail technologies when they were ªrst developed.53 As the Internet has
expanded and questionable conduct such as spam has grown with it,
these security ºaws have enabled the spam problem to persist.54 The
technical solutions being implemented are largely built to plug these
security holes.55
Spam-ªghting technologies can be roughly grouped into three
forms.56 First and perhaps most important are those efforts to combat
spam at the originating e-mail server in order to prevent messages
from ever being sent.57 Second, there are systems that reside at the
ISP of the e-mail recipient that try to stop the messages.58 Lastly there
are systems controlled by Internet users themselves that help block
spam before they reach the user.59
1. Blocking Spam From the Originating Server
To stop mail at its origin point, ISPs must attempt to add layers of
security to their e-mail servers.60 The protocol, or technology standard,
used to send most e-mails is known as SMTP, or Simple Mail Transfer
Protocol.61 SMTP servers, which are responsible for sending most email, do not need to be authenticated in any way.62 As a result, spammers can often take advantage of available open servers, or “open relays,” and route their mail through these unsecured servers.63 These
spammers take advantage of other ISPs’ servers without authorization,
and because there is no authentication, the spammers can disguise
their identities.64 There are several solutions to this problem.65 For example, if every ISP required some kind of outgoing authentication,
53 See, e.g., Sarrocco, supra note 2, at 5 (“the basic Internet architecture . . . is intrinsically insecure, allowing spammers to operate anonymously and to evade law enforcement”).
54 Id.
55 Yoke & Tan, supra note 20, at 6 (noting that closing security loopholes can help resolve the spam problem).
56 See id. at 4–5.
57 Id.
58 Id.
59 Id.
60 Yoke & Tan, supra note 20, at 5–6.
61 For a more complete deªnition of the SMTP protocol, see Deªnition of SMTP, Webopedia, http://www.webopedia.com/TERM/S/SMTP.html (last visited Feb. 12, 2006).
62 See Sarrocco, supra note 2, at 5.
63 See Sorkin, supra note 13, at 339.
64 See Sarrocco, supra note 2, at 13.
65 See, e.g., Yoke & Tan, supra note 20, at 5–7.
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then ISPs would be able to track every spam message to a particular
account and deactivate the account before more spam is sent.66
Another technical solution is to block a network communications
port on computers and networks known as “Port 25.”67 Today, over
40% of all spam is sent, often via Port 25, by unwitting users whose
computers have become spamming “zombies,” after being infected
with a virus.68 If ISPs block this port from their networks, then they
can limit the amount of spam being sent in this manner.69
Third, ISPs can limit the number of outgoing e-mails that can be
sent by any one user.70 This would permit users to send e-mails to a
limited list of recipients, while stopping spam messages from being
sent to thousands of people at a time.71
Lastly, many organizations have been developing authentication
mechanisms that ensure that the name and e-mail address on an email message indeed corresponds to the correct user.72 Outgoing ISPs
can conªrm that e-mails are indeed sent from their customers and are
not fraudulent, so incoming ISPs can then route them efªciently.73
This, however, raises several problems.74 These authentication systems
have not been standardized, so there is no common way for users to
authenticate themselves or for recipients to conªrm that authentication.75 The other problem is that legitimate users, who have not, for
whatever reason, been able to authenticate their e-mail address, may
ªnd that their messages are rejected by recipients.76
66 Id. at 6–7; cf. Magee, supra note 6, at 343–44 (discussing efforts by ISPs to prevent
spam by including anti-spam terms in their user contracts but noting that the lack of authentication makes it difªcult to enforce these contracts).
67 Yoke & Tan, supra note 20, at 5. For a discussion of network ports and related terminology, see Port (computing), http://en.wikipedia.org/w/index.php?title=Port_(computing)&oldid=41985982 (last visited March 3, 2006).
68 Yoke & Tan, supra note 20, at 5; see also Gross, supra note 38.
69 Yoke & Tan, supra note 20, at 5.
70 Id. at 6.
71 Id.
72 Id.
73 Id. at 6–7.
74 See infra notes 75–76 and accompanying text.
75 Yoke & Tan, supra note 20, at 7 (listing the various proposed authentication methods).
76 Cf. id. at 5 (noting that similar solutions, such as Port 25 blocking, can have the effect of blocking legitimate e-mails).
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2. Blocking Spam by the Receiving ISP
At the receiving ISP, several options are available as well.77 One of
the more controversial options is to implement a reputation system.78
These systems rate incoming mail servers by their reputations for sending spam.79 If an ISP is known to be the source of spam, a receiving ISP
can simply block all e-mail trafªc from that ISP.80 The risk here is that
not all e-mail trafªc from that ISP is likely to be spam and many legitimate e-mails could be blocked.81 One form of these reputation systems
are “blacklists” and “whitelists,” which companies compile to list e-mail
addresses, domains, and IP addresses that are deemed either consistent
spammers or safe senders, respectively.82 Blacklists and whitelists have
been effective at blocking some spam and are shared with ISPs to use in
conjunction with other spam-ªghting methods.83
3. End-user Spam Filtering Techniques
Lastly, there are end-user based ªltering mechanisms.84 These
can be both static and Bayesian.85 Static ªlters are simply lists of e-mail
addresses from which e-mails are automatically deleted.86 Bayesian
ªltering provides a more robust solution that gradually “learns” what
a user regards as spam.87 The problem with these systems is that they
tend to generate false positives and mark legitimate mail as spam,
while spammers are constantly working to beat their algorithms.88
Both of these ªltering technologies are widely used in all of the major
e-mail services today.89
77 See id. at 5–11.
78 Id. at 9–10.
79 Id.
80 Id.
81 Sarrocco, supra note 2, at 12.
82 Yoke & Tan, supra note 20, at 9–10.
83 See The Spamhaus Project, http://www.spamhaus.org (last visited Mar. 7, 2006) (providing blacklists, whitelists, and other anti-spam services to ISPs); see also John Levine, How to
Stop Spam, CircleID, Jan. 24, 2005, http://www.circleid.com/posts/how_to_stop_spam/.
84 Yoke & Tan, supra note 20, at 11–13.
85 Id. For additional background on Bayesian spam ªltering, see Bayesian Filter,
http://whatis.techtarget.com/deªnition/0,289893,sid9_gci957306,00.html (last visited Mar.
8, 2006).
86 Yoke & Tan, supra note 20, at 11–13.
87 Id.
88 Id. at 14 (noting the false positive risk and that spammers try to avoid ªlters by purposely misspelling words in their spam).
89 Yoke & Tan, supra note 20, at 13.
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E. National Legislative Approaches to Fighting Spam
While technical solutions have proliferated, many national governments, and indeed much of the international community, believe
that the ªght against spam cannot be adequately fought without legislation and enforcement.90 As a result, many countries have enacted antispam laws.91 These laws diverge, however, in their deªnitions of spam
and their methods of enforcement.92 These differences may prove to
make international cooperation difªcult in the future.93 There are
many different models for enforcing spam laws, so countries have enacted laws with any combination of criminal sanctions, civil actions
brought by their governments, or private rights of actions that may be
brought by individuals or ISPs.94
There are, however, some commonalities to most of these laws.95
Most consider unsolicited e-mail to be illegal when it conceals the
sender’s identity, uses a third party’s domain name without permission, or provides misleading information in the subject line of the email.96 In general, these laws either use an opt-in approach, in which
prior authorization is required, or an opt-out approach, in which the
recipient can opt-out of future messages.97 Many of the laws require
senders to clearly and accurately identify themselves as well.98
One such law is the CAN-SPAM Act, which the U.S. Congress enacted in 2003.99 The Act preempted several state spam laws that had
90 See Horton, supra note 2, at ¶ 23. See generally Matthew B. Prince, How to Craft
an Effective Anti-Spam Law (2004), http://www.itu.int/osg/spu/spam/contributions/
Background%20Paper_How%20to%20craft%20and%20effective%20anti-spam%20law.pdf
(recommending how legislation and enforcement can be more effective).
91 See generally Int’l Telecomms. Union, ITU Survey on Anti-Spam Legislation
Worldwide (2005), available at http://www.itu.int/osg/spu/spam/legislation/Background
_Paper_ITU_Bueti_Survey.pdf; Int’l Telecomms. Union, Annex I: Worldwide Authorities and Legislative Frameworks Addressing Spam [Draft in Progress] (2004), available at http://www.itu.int/osg/spu/spam/contributions/Background%20Paper_Building%20
frameworks%20for%20Intl%20Cooperation_Annex%201.pdf [hereinafter World-wide Auth
orities] (reviewing several countries’ spam laws).
92 Horton, supra note 2, at ¶ 26 (noting that there is little agreement across jurisdictions as to what anti-spam laws prohibit).
93 Id.
94 See Prince, supra note 90, at 7-8; Sarrocco, supra note 2, at 14.
95 See Sarrocco, supra note 2, at 14.
96 Id.
97 Id.
98 Id.
99 Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003,
15 U.S.C. §§ 7701–7713, 18 U.S.C. § 1037 (2006).
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attempted to solve the problem.100 The law follows an “opt-out” policy,
permitting unsolicited bulk email as long as the messages are not misleading or fraudulent, accurately represent the purpose of the message,
and provide recipients an opt-out option.101 This opt-out mechanism
must work and there must be a legitimate e-mail address to which users
can send messages to unsubscribe.102 This is meant to address the problem of spammers providing ineffective or fraudulent methods of opting
out.103
The U.S. Congress identiªes spam as messages that: (1) are sent
through a server without authorization; (2) are sent via “zombie” computers with the intent to deceive recipients or ISPs; (3) have falsiªed
header information, such as “from,” “to,” or tracking information; (4)
that falsify the identity of the sender; or (5) otherwise falsely represent
the sender.104
The CAN-SPAM Act provides for criminal enforcement by the
Federal Trade Commission (FTC) and provides a civil cause of action
for state attorneys general and ISPs to sue spammers.105 Several prosecutions and civil actions were brought pursuant to the CAN-SPAM Act
in its ªrst year of enactment.106 The CAN-SPAM Act, however, received much criticism for its opt-out approach, which effectively permits spammers to send one e-mail to anyone, provided that there is an
opt-out mechanism.107 Studies have shown no noticeable decline of
spam since the Act went into effect.108
Elsewhere, Australia passed its 2003 Spam Act, which went into
effect in April 2004.109 This is an opt-in regime, forbidding spam from
being sent even once, and providing primarily for civil damages
100 15 U.S.C. § 7707(b)(1). See generally Magee, supra note 6, at 356–58 (providing an
overview of pre-CAN-SPAM state laws).
101 15 U.S.C § 7704(a).
102 Id.
103 See id. § 7701(a)(9).
104 See 18 U.S.C. § 1037(a).
105 15 U.S.C. § 7706(d), (f), (g).
106 See Horton, supra note 2, ¶ 27; David Cohen, Spam Is Finally a Crime, Wired News,
Nov. 4, 2004, http://www.wired.com/news/business/0,1367,65594,00.html.
107 See Tom Zeller, Jr., Law Barring Junk E-Mail Allows a Flood Instead, N.Y. Times, Feb. 1,
2005, at A1; Spamhaus, Spamhaus Position on CAN-SPAM Act of 2003 (S.877 / HR
2214), http://www.spamhaus.org/position/CAN-SPAM_Act_2003.html (last visited Mar. 7,
2006) (“Spamhaus sees the introduction of the CAN-SPAM Act of 2003 (S.877/HR 2214)
as a serious failure of the United States government to understand the Spam problem.”).
108 See Zeller, supra note 107.
109 Worldwide Authorities, supra note 91, at 3.
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against spammers.110 Similarly, the European Union has also enacted
opt-in spam legislation.111 Despite the stronger regime, critics argue
that because most spam originates outside of Europe, the law lacks
enforcement power.112
F. International Cooperation on Spam
In recent years, many countries have recognized that without international cooperation, their domestic anti-spam legislation is insufªcient.113 As a result, several countries have begun cooperating on
anti-spam initiatives.114 Australia has made international spam cooperation a key element in a multi-tiered strategy to combat spam.115
Australia has proposed a ºexible approach to cooperation in which
different countries (1) introduce domestic spam legislation that is
reasonably coordinated and (2) commit to respond effectively to information about spammers beyond their borders.116 Australia has
proposed and entered into a few bilateral and multilateral agreements
dealing with spam.117
The European Union has also proposed a system of cooperation to
combat spam.118 It has proposed a series of coordinated actions that
member states should implement, including effective enforcement of
laws and national strategies to ensure communications between the
various regulatory agencies.119 It also suggests using or creating a “liaison mechanism” to help support cross-border spam enforcement.120
The United States, the United Kingdom, and Australia recently
entered into a Memorandum of Understanding (MoU) agreeing to
work together to combat spam.121 This agreement committed the coun110 John Haydon, Multi-lateral and Bi-lateral Cooperation: the Australian Approach 1–2 (2004), available at http://www.itu.int/osg/spu/spam/presentations/ HAYDON_Session%208.ppt.
111 Worldwide Authorities, supra note 91, at 5.
112 European Anti-Spam Laws Lack Bite, BBC News, Apr. 28, 2004, http://news.bbc.
co.uk/2/hi/technology/3666585.stm.
113 Gérard, supra note 8, at 4 (noting the “crucial role for multilateral and bilateral
cooperation”).
114 See Haydon, supra note 110, at 4.
115 Id. at 2.
116 Id. at 2–3.
117 Id. at 4.
118 Sarrocco, supra note 2, at 15.
119 See Gérard, supra note 8, at 10–12.
120 Id.
121 Memorandum Of Understanding on Mutual Enforcement Assistance in Commercial E-mail Matters Among the Following Agencies of the United States, the United King-
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tries’ respective spam-ªghting agencies to working together to enforce
each country’s spam laws.122 Recognizing that “[i]llegal spam does not
respect national boundaries,” the FTC agreed to work closely with the
United Kingdom’s Secretary of State for Trade and Industry, Australia’s
Competition and Consumer Commission, and the Australian Communications Authority to share research, knowledge, technical expertise,
evidence, and other enforcement information.123 The MoU respects
the different spam laws in each country, with their different deªnitions
of spam, yet it encourages each country to cooperate in enforcing the
laws in the other countries.124 It also recognizes that it is impossible to
cooperate on every spam case, so it recommends cooperation on only
the most signiªcant or most damaging spam cases.125
Perhaps the most signiªcant effort at internationalizing the spam
problem began with a global summit of the United Nations, known as
the World Summit on the Information Society (WSIS).126 This summit
took place over the course of a few years, ªrst meeting in December,
2003 in Geneva and meeting again in November, 2005 in Tunis.127
The summit was sponsored by the International Telecommunications
Union (ITU), which is a UN body charged with regulating parts of the
international telecommunications infrastructure.128
The summit arose out of UN General Assembly Resolution
56/183, which, as part of the Millennium Declaration initiative to rid
the world of poverty, called for a multi-part meeting to promote access
to the Internet and information across the world.129 WSIS involved
governments, technology companies, and other public interest organizations in discussions addressing a wide range of issues, from how
dom, and Australia: the United States Federal Trade Commission, the United Kingdom’s
Ofªce of Fair Trading, the United Kingdom’s Information Commissioner, Her Majesty’s
Secretary of State for Trade and Industry in the United Kingdom, the Australian Competition and Consumer Commission, and the Australian Communications Authority, June 30,
2004, available at http://www.ftc.gov/os/2004/07/040630spammoutext.pdf [hereinafter
MoU].
122 Press Release, Federal Trade Commission, Consumer Protection Cops Join Forces
to Fight Illegal Spam: Six Agencies on Three Continents Will Leverage Law Enforcement
Efforts ( July 2, 2004), available at http://www.ftc.gov/opa/2004/07/mou.htm.
123 Id.
124 See MoU, supra note 121, at 1.
125 MoU, supra note 121, at 5.
126 See Grossman, supra note 9. See generally Klein, supra note 10.
127 Grossman, supra note 9.
128 Klein, supra note 10, at 2; Hans Klein, The Internet: Place, Property, or Thing—All or
None of the Above?, 55 Mercer L. Rev. 947, 949 (2004) [hereinafter Klein, The Internet].
129 G.A. Res. 56/183, U.N. GAOR, 56th Sess., U.N. Doc. A/RES/56/183 ( Jan. 31, 2002).
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to “govern” the Internet, to spam, to increasing access to communications technologies around the world.130
Two concluding documents from the Geneva phase of WSIS, the
Declaration of Principles and the Plan of Action, cited spam as a problem requiring international attention and committed the parties to
working together to solve this problem.131 After the Geneva phase, the
WSIS convened a Thematic Meeting on Countering Spam.132 This
meeting gathered governments, consumer groups, ISPs, nongovernmental organizations, and experts from the software and Internet
technology industries to discuss the latest efforts in combating spam.133
The parties to the meeting made several political, legal, and technical
recommendations on how to combat spam and also provided an overview of the current state of global anti-spam efforts.134 Finally, the Tunis
phase produced even more statements of international commitment to
ªght spam.135
G. Brief Overview of Internet Governance
Another one of the focus areas of WSIS was a global discussion of
“Internet governance.”136 Although it does not have a speciªc
deªnition, at its heart, Internet governance includes the private organizations, governments, treaty organizations, and other bodies that,
to some degree, govern the Internet.137 Because the Internet is borderless and has so many constituencies, national governments have a
limited role in Internet governance, which they share with many
other institutions.138 For this reason, there is much debate about
130 Id.; Grossman, supra note 9.
131 Declaration of Principles, supra note 11, ¶ 37; World Summit on the Info. Society, Plan of Action ¶ 12(d) (WSIS Doc. WSIS-03/GENEVA/DOC/0005) (2003), available at
http://www.itu.int/dms_pub/itu-s/md/03/wsis/doc/S03-WSIS-DOC-0005!!PDF-E.pdf.
132 See Horton, supra note 2, ¶ 1.
133 Id. ¶ 4.
134 See id. ¶¶ 4, 8.
135 See generally Deborah Hurley, Int’l Telecomms. Union, ITU WSIS Thematic
Meeting on Cybersecurity, Chairman’s Report (2005) ¶¶ 6–35, available at http://
www.itu.int/osg/spu/cybersecurity/chairmansreport.pdf [hereinafter Cybersecurity Report) (reviewing the results of the cybersecurity meeting); Tunis Agenda, supra note 11,
¶ 41 (expressing support for the ªght against spam at the end of the Tunis phase).
136 Declaration of Principles, supra note 11, ¶ 50 (asking the UN to set up a working group for Internet governance).
137 See Milton Mueller et al., Making Sense of “Internet Governance”: Deªning Principles and
Norms in a Policy Context, in Internet Governance, supra note 45, at 100, 101–03.
138 Id.
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whether there should be any formal governing structure and how effective such a structure can be.139
At the heart of this debate is the Internet Corporation for Assigned Names and Numbers (ICANN), which was established in the
United States as the organization that controls the core domain name
system by providing ISPs and companies with their Internet domain
names.140 ICANN serves as a quasi-international body, which manages
the domain name distribution and conºict resolution process for the
entire Internet.141 ICANN is incorporated under U.S. contract law and
is subject to U.S. law.142 Many other countries believe that a United Nations body, such as the ITU, should govern such a critical aspect of the
Internet and have pushed towards this result in the WSIS context.143
At this point, there is no central governance institution concerned with the ªght against spam, but the debates on Internet governance in general and ICANN in particular may inform the debate
about the feasibility of such an institution.144
II. Discussion
International efforts to combat spam present many difªcult issues.145 At the same time, however, there is consensus that spam is a
problem that needs an international response.146 The challenge, therefore, is in ªnding the common ground on which to move forward. 147
139 See generally Declan McCullagh, Internet Showdown in Tunis, Cnet News.com, Nov. 11,
2005, http://news.com.com/Internet+showdown+in+Tunis/2008-1012_3-5945200.html;
Markus Kummer, The Results of the WSIS Negotiations on Internet Governance, in Internet Governance, supra note 45, at 53, 53–55.
140 See generally Wolfgang Kleinwächter, Beyond ICANN vs. ITU: Will WSIS Open New Territory for Internet Governance?, in Internet Governance, supra note 45, at 31, 32, 38–40.
141 Klein, The Internet, supra note 128, at 950–53.
142 Id. at 948–51.
143 Id. at 959–61.
144 Kleinwächter, supra note 140, at 32 (noting that in the early stages of WSIS, some
governments wanted to expand the concept of Internet governance to include many
Internet related issues such as spam and illegal content and to have an international institution such as the ITU to take over this initiative).
145 See generally Horton, supra note 2, ¶¶ 23–35.
146 See, e.g., Declaration of Principles, supra note 11, ¶ 37; Michelle Delio, Spam Gets
Its Claws in the U.N., Wired News, Mar. 28, 2004, http://www.wired.com/news/politics/0,1283,62824,00.html.
147 See Sarrocco, supra note 2, at 18.
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A. Freedom of Speech, Regulation of Commerce, and Spam Deªnitions
One of the threshold issues in the ªght against spam is how to
deªne it.148 It may be tempting to simply call all unwanted e-mail
spam, or to take an approach similar to the one Justice Potter Stewart
used to deªne pornography (“I know it when I see it.”),149 but a more
speciªc deªnition is necessary to create enforceable spam laws.150
Some say that all unsolicited bulk e-mail (UBE) should be considered
spam, while others suggest that the messages must also be commercial
in nature.151 The latter messages are known as unsolicited Commercial E-mail (UCE).152 Still others argue that to be considered spam, a
message must have no “unsubscribe” mechanism and must somehow
disguise its sender or its intent with fraudulent or misleading header
information.153
Underlying these various deªnitions is a range of ideas behind
what is an appropriate use of Internet resources.154 Most people agree
that for a message to be considered spam, it must be bulk in nature.155
This is because the primary problem of spam is that it consumes users’ time and bandwidth.156 Of course, the other key component is
that the message be unsolicited.157
A key debate, therefore, is whether noncommercial bulk e-mails
should be considered spam.158 These include charitable fundraising
solicitations, political ads, chain letters, and other such messages.159
Those who would prefer to limit the scope of “spam” to UCE argue that
private and public spam enforcement should primarily punish those
who use spam for proªtable gain.160 Those who support broader UBE
restrictions argue that since the harm is the same for any spam mes148 Sorkin, supra note 13, at 326–36.
149 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
150 See Sorkin, supra note 13, at 327.
151 Compare Sorkin, supra note 13, at 327–35, with Spamhaus, The Deªnition of Spam,
http://www.spamhaus.org/deªnition.html (last visited Mar. 7, 2006).
152 Sorkin, supra note 13, at 327–35.
153 Id.; 18 U.S.C. § 1037(a) (deªning elements of fraud in connection with commercial
e-mail).
154 Magee, supra note 6, at 338 (noting that spam regulation presents a clear contradiction between business interests and those of private individuals who do not want to receive
spam).
155 Sorkin, supra note 13, at 330–31.
156 Id.
157 Id. at 328–29.
158 Id. at 333.
159 Id.
160 Sorkin, supra note 13, at 334.
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sage, they should all be combated.161 The United States, however, has
constitutional restrictions against regulating non-commercial speech
and is unable to broadly regulate UBE.162
The issue of how to deªne spam, which necessarily touches upon
the ªne distinction between legitimate commercial speech and unwanted spam, is a difªcult one.163 It presents a complex policy question about how much commercial speech is appropriate and at what
point it intrudes on the rights of others.164
In the United States, the First Amendment restricts Congress’s
ability to pass enforceable anti-spam legislation.165 The Supreme
Court held in Central Hudson Gas & Electric Co. v. Public Service Commission of New York that the First Amendment protects commercial speech
from regulation, provided that it is otherwise lawful and not misleading.166 If the speech meets these criteria, then any regulation of it
must directly advance a substantial governmental interest and must
not be more extensive than necessary to meet that objective.167 In developing the CAN-SPAM Act, Congress could therefore only narrowly
regulate bulk e-mail messages that are not misleading or otherwise
illegal.168 To regulate these more legitimate commercial e-mails, Congress needed to assert that the law was necessary to serve a substantial
government interest.169 Congress reasoned that even non-misleading
or illegal spam must be regulated to preserve “the viability of e-mail as
a medium of communication” because “there is a real danger that this
medium will be rendered useless without regulation.”170 Considering
the massive amounts of spam relative to legitimate e-mail, Congress
was able to ªnd a substantial government purpose to meet the Central
Hudson test.171
161 Id. at 335.
162 See generally Marc Simon, The CAN-SPAM Act of 2003: Is Congressional Regulation of
Unsolicited Commercial E-Mail Constitutional?, 4 J. High Tech. L. 85 (2004).
163 See Magee, supra note 6, at 338–39.
164 See id.
165 See id. at 358–60.
166 447 U.S. 557, 566 (1980).
167 Id.
168 See generally Simon, supra note 162 (providing a complete constitutional analysis of
the CAN-SPAM Act).
169 Magee, supra note 6, at 359.
170 Michael A. Fisher, The Right to Spam? Regulating Electronic Junk Mail, 23 Colum.-VLA
J.L. & Arts 363, 409–10 (2000).
171 See Simon, supra note 162, at 95; Magee, supra note 6, at 359.
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Nonetheless, to meet the proportionality requirement, the CANSPAM Act needed to rely on an opt-out approach to UBE.172 This
permitted “legitimate” e-mail marketing messages to be sent once, as
long as consumers could opt out of further messages.173 Although an
opt-in approach would probably be a more effective anti-spam regime,
it could very well be found to be disproportionate in that it would
block many mailings that could be considered protected commercial
speech.174
While the CAN-SPAM Act has a lenient opt-out policy to conform
to U.S. law, it does set some standards for what is acceptable spam and
what is not, including e-mail with forged identities, fraudulent
schemes, viruses, and those without reliable opt-out mechanisms.175
These basic rules roughly correspond to spam laws in other
countries, even if those countries have stricter, opt-in legislation.176
Nonetheless, these two approaches do present a problem in creating
any enforceable international spam regime.177 If the international
community were to adopt a multilateral agreement on spam, it may
be forced to adopt an opt-out approach, which is the lowest common
denominator approach to national spam laws.178 Though this approach would be weaker than the existing laws in many countries, this
may be necessary to set minimum enforcement standards that all
countries can accept.179 If it were to adopt a stricter opt-in approach,
countries such as the United States may have to reject it due to do-
172 See Jeffrey D. Sullivan & Michael B. De Leeuw, Spam After Can-Spam: How Inconsistent
Thinking Has Made a Hash Out of Unsolicited Commercial E-Mail Policy, 20 Santa Clara Computer & High Tech. L.J. 887, 893 (2004) (noting that Congress never seriously considered an opt-in spam policy partially due to First Amendment concerns).
173 See Prince, supra note 90, at 3 (discussing the commercial speech rationales behind
opt-out policies).
174 See id. (noting direct marketing statistics supporting the argument that an opt-in
approach could “unreasonably burden legitimate businesses”).
175 15 U.S.C. § 7704(a)(5) (providing that, for UCE to be lawful, it must include a
valid, working opt-out mechanism, valid postal address of the sender, and “clear and conspicuous identiªcation that the message is an advertisement or solicitation”); 18 U.S.C.
§ 1037(a) (criminal prohibition against the use of “zombies” and falsiªed domain names
to send UCE).
176 See generally Worldwide Authorities, supra note 91.
177 See Sarrocco, supra note 2, at 16 (“The harmonization of legislative approaches to
spam between different jurisdictions from which an e-mail user is likely to receive spam
would be crucial in order to properly tackle the problem.”).
178 See id.
179 See id. at 16.
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mestic constitutional grounds.180 Since the United States produces
the lion’s share of global spam, this problem could render such an
international cooperation effort useless.181
B. Internet Governance Debate
Another challenge in developing a global solution to the spam
problem involves the question of whether the Internet can or should
be governed, and if so, by whom.182
Some scholars wonder if it is possible to govern the Internet or if
this would even be beneªcial.183 Some say any attempts at formal governance are futile since the Internet is such a huge, seemingly uncontrollable network.184 They argue that because the Internet spans borders, there is really no government or institution that can possibly
regulate it.185 Even if regulation were possible, these scholars fear that
too much control could risk stiºing the open communication, entrepreneurship, and inherently democratic virtues of the Internet.186
Their concern is that too much intervention in the Internet could stiºe
commerce by cutting back on new innovations, and could impose the
social mores of one group on the global Internet community.187
Nonetheless, several organizations play some Internet governance
roles already.188 Most prominent among these is ICANN, which monitors the domain name system and is the ultimate authority behind the
naming conventions on the Internet.189 ICANN works to establish contract-based rules to resolve public policy domain problems such as
copyright and trademark infringement issues among domain own180 See Sullivan & De Leeuw, supra note 172, at 893. See generally Adam Zitter, Note, Good
Laws for Junk Fax? Government Regulation of Unsolicited Solicitations, 72 Fordham L. Rev. 2767
(2004) (discussing the constitutionality of opt-in and opt-out systems).
181 Cynthia L. Webb, There’s No Spam Like American Spam, Washingtonpost.com, Feb 3,
2004, http://www.washingtonpost.com/ac2/wp-dyn/A8344-2004Feb3?language=printer (noting that 80% of European spam “is in English and 80% claims North America as its point of
origin”).
182 See, e.g., Kleinwächter, supra note 140, at 31 (noting that Internet governance is
“one of the most controversial issues” in WSIS).
183 See, e.g., Zoë Baird & Stefaan Verhuist, A New Model for Global Internet Governance, in
Internet Governance, supra note 45, at 58, 61.
184 Id.
185 Id.
186 See, e.g., id. (arguing that too much government involvement in Internet governance can have the unintended consequence of stiºing free speech).
187 Id.
188 Mueller et al., supra note 137, at 103.
189 Id. at 102.
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ers.190 Other national government institutions also regulate online
commerce in their countries.191 In addition, the World Intellectual
Property Organization (WIPO) has created some standards for content
over the Internet and has mandated that its member states create and
enforce Internet-related intellectual property laws.192
Some private individuals, companies, and other organizations have
played governance roles as well.193 Standards bodies, for example, develop the protocols that are used on the Internet, such as for e-mail, the
World Wide Web, and display technologies such as HTML.194 ISPs, as
the gateways to the Internet, have some control over the actions of
Internet users.195 With regard to spam, ISPs have the power to block emails from senders before they get to their targets.196 So to some extent, technology developers, private ISPs, and users play more of a role
in Internet governance than do the governmental bodies discussed
above.197 Some people argue that spam regulation should be primarily
left up to the private sector, with its constant improvements in antispam technology.198 They argue that spam legislation and enforcement
takes too long, that the laws are redundant because existing laws already cover privacy and fraud, and that private technological solutions
are already bearing fruit in the ªght against spam.199 They argue that
there is no need for any public or private centralized authority to manage the Internet or to combat spam and instead argue for a decentralized, private form of governance.200 Such a system, based on a “peer
production” model, puts governance in the hands of end users, ISPs,
and employers who run the local networks that people use.201
190 Id.
191 See id. at 102–03.
192 Id. at 103.
193 See infra notes 194–97 and accompanying text.
194 Robert E. Kahn, Working Code and Rough Consensus: The Internet as Social Evolution, in
Internet Governance, supra note 45, at 16, 18 (describing the role of standards bodies in
gradually developing standards of behavior on the Internet).
195 See, e.g. Yoke & Tan, supra note 20, at 4–6.
196 See Levine, supra note 83.
197 See generally Lawrence Lessig, Code and Other Laws of Cyberspace (1999) (discussing the role that private technology has in creating the de facto law of the Internet).
198 See Rich Kulawiec, 10 Reasons Why Involving Government in Spam Control Is a Bad Idea,
CircleID, Jul. 19, 2004, http://www.circleid.com/posts/10_reasons_why_involving_government_in_spam_control_is_a_bad_idea.
199 See id.; see also Levine, supra note 83.
200 See David R. Johnson, et al., The Accountable Internet: Peer Production of Internet Governance, 9 Va. J.L. & Tech. 9, ¶ 2 (2004), http://www.vjolt.net/vol9/issue3/v9i3_a09Palfrey.pdf.
201 Id. ¶¶ 39–40.
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Sometimes, however, individuals need true “hard law” to fall back
on, when private regulation is not sufªcient.202 In the spam context,
this could happen when a purportedly legitimate spammer feels his
free speech has been violated by an over-sensitive ISP that blocks his email.203 In this case, the spammer may want to pursue his claim in court
under substantive law, as opposed to ªghting directly with ISPs.204
Internet governance and spam regulation are therefore governed by a sort of partnership between private and public institutions.205 The question remains, however, how to organize all of these
parties to best combat the spam problem.206
As discussed in Part II, many foreign governments and institutions
believe that the United Nations, or one of its constituent organizations
such as the ITU, should have the ultimate authority over Internet governance.207 They feel that American institutions such as ICANN do not
represent global interests as well as a UN body would.208 On the other
hand, some scholars believe that UN management may lead to limitations on free speech on the Internet and spam policy, as nondemocratic member states apply pressure for censorship policies.209
Any international spam resolution must take into account this debate
between private governance institutions, quasi-governmental institutions such as ICANN, and international treaty organizations such as
ITU or WIPO.210
C. Intergovernmental Cooperation & Enforcement Challenges
Though in recent years the international community has urged
multilateral cooperation in the ªght against spam, many barriers to
effective enforcement remain.211 One challenge in developing a cooperation regime is that the ªght against spam is a “horizontal” challenge affecting many different areas of the law, including “telecom202 See Sorkin, supra note 13, at 343–44 (discussing the “problems with self-regulation”).
203 See id. at 349 (noting that ISP ªlters interfere with legitimate e-mail trafªc).
204 See Sarrocco, supra note 2, at 12.
205 See generally Baird & Verhulst, supra note 183; Johnson, supra note 200.
206 See Magee, supra note 6, at 378–79 (discussing some frameworks for a global system
to combat spam).
207 See Klein, The Internet, supra note 128, at 959–60.
208 Id.
209 See Bruce Levinson, Preventing a New World Internet Order, CircleID, Jan. 18, 2005, at
http://www.circleid.com/posts/preventing_a_new_world_internet_order/.
210 Magee, supra note 6, at 378–80.
211 Sarrocco, supra note 2, at 18 (noting the jurisdictional challenges to international
spam cooperation).
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munications, trade, privacy, and consumer protection.”212 As a result,
non-spam legislation, such as anti-fraud or privacy laws, often target
spammers as much as laws that speciªcally target spam.213 In addition,
even when countries have spam-speciªc laws, the related enforcement
powers can vary.214 Many countries do not offer criminal sanctions
against spammers and only offer civil ªnes, while others offer these
sanctions as well as private causes of action by either individuals or
ISPs.215 It is therefore challenging to develop an international regime
that is ºexible enough to account for the differences in the relevant
local laws that affect spam.216
Similarly, most countries have several regulatory bodies that are
responsible for spam.217 In the United States, for example, the FTC
and state attorneys general both enforce spam laws.218 In other countries, this authority is vested in multiple agencies; for example, in the
United Kingdom, the Information Commissioner and the ofªce of
Fair Trading and Her Majesty’s Secretary of State for Trade and Industry all have some authority in this area.219
Adding another layer of complexity to the problem, many countries do not yet have any spam-speciªc legislation and currently have
no plans to develop it.220 This further complicates any coordination
efforts among various states.221
Another issue with spam coordination is the cost of investigating
and enforcing spam laws.222 Spammers have become very skilled at hiding their identities through the use of technology, which signiªcantly
increases the costs of enforcement.223 Because there are so many spammers, this would require hundreds of spam prosecutions, which of
course drives up the costs considerably.224 Many countries will only be
212 Id. at 14.
213 Id.
214 See Prince, supra note 90, at 7-8; Sarrocco, supra note 2, at 14. See generally
Worldwide Authorities, supra note 91 (providing a list of spam laws worldwide and their
enforcement mechanisms).
215 Id.
216 Id. at 14–18.
217 Sarrocco, supra note 2, at 17.
218 See id.
219 Id.
220 See generally Petr Piškula & Jana Klaschková, Report on Non-OECD Countries’
Spam Legislation 6–10 (2004), http://www.oecd.org/dataoecd/26/47/31861202.pdf.
221 See, e.g., Gérard, supra note 8, at 3 (arguing that the ªrst step in international spam
cooperation is to establish effective anti-spam legislation in every country).
222 Prince, supra note 90, at 4 (discussing the costs of prosecuting spammers).
223 See id. at 5.
224 See id. at 4–5.
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willing to cooperate in investigating or prosecuting spammers in cases
where there are signiªcant damages.225 Countries have many more important ways of spending their resources than prosecuting spammers,
unless the value of the prosecution is clear.226 This presents the problem
of deªning exactly what kinds of spam, and how much of it, causes
enough damage to warrant the expense of international cooperation.227
Any cooperation regime must also spell out exactly what information must be shared across borders and what the expectations are for
each party.228 The MoU between the United States, Australia and the
United Kingdom may provide a starting point for a comprehensive
cooperation mechanism.229 Rather than deªning spam or mandating
any speciªc spam laws, it defers to the laws and institutions of the participating countries.230 It commits the parties to help each other
gather evidence, serve process, share technology, and otherwise coordinate in the battle against spam.231 It further provides for a strict
conªdentiality system to preserve the privacy of the parties involved in
any international spam investigation.232 The MoU, however, is merely
aspirational, in that it does not create any “binding obligations under
international law or under the domestic laws of the Participants.”233
While loose agreements such as the MoU may be helpful, in light
of the discussions at the various WSIS meetings, perhaps a more forceful agreement can be negotiated to combat spam on a larger scale.234
Just as there are already several multilateral Internet governance institutions such as ICANN and the WIPO, perhaps a new organization,
with its authority provided for in a multilateral treaty, can be created
with limited jurisdiction over spam enforcement and cooperation.235
III. Analysis
Though there are many challenges to improving international
cooperation on spam, WSIS provided a forum where many stakeholders around the world could debate the problem and begin to de225 Id.
226 Id.
227 Prince, supra note 90, at 5.
228 See, e.g., MoU, supra note 121, at 4–5.
229 See generally id.
230 Id. at 2–4.
231 Id. at 3.
232 Id. at 8.
233 MoU, supra note 121, at 10.
234 See Horton, supra note 2, ¶ 32.
235 See id.
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velop comprehensive solutions.236 The various sessions of WSIS discussed the many issues of the spam problem, and brought to light
many initiatives that are being tried around the world.237 At the end
of the Tunis phase of the summit, the parties agreed to “adopt a
multi-pronged approach to counter spam that includes, inter alia, consumer and business education; appropriate legislation, law enforcement authorities, and tools; the continued development of technical
and self-regulatory measures; best practices, and international cooperation.”238
In light of this decision, the challenge before the international
community is how to expand on the existing multi-pronged approaches
that were discussed at WSIS, such as the MoU, and create a framework
that enables truly global cooperation in the ªght against spam.239 Any
cooperative system must be ºexible enough to meet domestic constitutional requirements and effectively interrelate with domestic laws while
being forceful enough to deter spammers at an international level.240
At the same time, such a system must not stiºe the innovative capabilities of the private sector, technology companies, and ISPs, who provide
the critical front-line defense against spam.241 The framework must also
enhance international cooperation to enable investigation, prosecution, and civil lawsuits against spammers who take advantage of the
global nature of the Internet.242
Perhaps the best way to balance the interests involved would be to
create a multilateral treaty organization that strengthens and expands
upon the MoU and other similar initiatives, while preserving their
ºexibility to account for jurisdictional differences.243 Because of the
236 Cf. Delio, supra note 146 (noting that spam is one topic at WSIS that “the entire
world can agree on”).
237 See, e.g., Cybersecurity Report, supra note 135, ¶¶ 25–29 (reviewing many international initiatives on combating spam).
238 Tunis Agenda, supra note 11, ¶ 41.
239 See id.
240 See, e.g., Haydon, supra note 110, at 2; Prince, supra note 90, at 2–3 (arguing for
more forceful “action laws” as opposed to unenforceable “sentiment laws” expressing a
concern with spam); Sarrocco, supra note 2, at 18. These “domestic laws” include both
spam-speciªc laws and more general laws governing fraud and the like. See id.
241 Org. for Econ. Co-operation & Dev., Directorate for Sci., Tech. and Indus.,
OECD Workshop on Spam: Report of the Workshop (OECD Doc. No. DSTI/
CP/ICCP(2004)1) ¶ 48 (2004), available at http://www.oecd.org/dataoecd/55/32/
31450810.pdf [hereinafter OECD Report] (noting that some technical self-regulation will
always be critical in order to deal with spam from countries not part of this agreement or
those without any formal spam laws).
242 See, e.g., Prince, supra note 90, at 7–8.
243 See, e.g., Horton, supra note 2, ¶ 32.
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347
ºexibility required to address the spam issue, the challenges posed by
creating one organization that would govern international spam law
and enforcement are probably insurmountable.244 It would be advisable, therefore, to create a body with more modest goals.245 This organization could be modeled after the WIPO or the World Heath Organization, which encourage cross-border cooperation in their respective
areas of expertise. It would require its members to enact some kinds of
spam legislation and to provide for a minimal amount of enforcement
and international cooperation.246 It could serve as a clearinghouse organization that funds technological and legal research and encourages
nation-states to enter into multi-lateral agreements to help stop
spam.247 This body would not, however, follow the ICANN model in
attempting to create binding law that could effectively be enforced in
multiple jurisdictions; rather it would set minimum standards for
membership and develop and encourage new ways of cross-border cooperation.248
A. Addressing Constitutional & Deªnitional Questions
For any international agreement on spam to work, it must require that member states enact spam laws that include a baseline
deªnition of spam.249 The deªnitional aspect is crucial, not only because it provides for a basic understanding of what is considered to be
spam, but depending on how broadly spam is deªned, it has the potential to implicate constitutional speech regulations.250 Thus, to ensure that many countries participate, this deªnition may need to
adopt a “lowest common denominator” approach and set a standard
that will produce minimal constitutional challenges in countries like
the United States.251 Consequently, the minimal standard would likely
have to be an “opt-out” approach.252 The agreement can follow the
244 See supra notes 240–42 and accompanying text.
245 See. e.g., id.
246 See infra notes 249–260 and accompanying text.
247 See infra notes 275–279 and accompanying text.
248 See infra notes 249-53, 260-262.
249 See Sarrocco, supra note 2, at 16.
250 See supra notes 163–171, 176–181 and accompanying text.
251 See supra note 178 and accompanying text.
252 See id. As has been discussed, any international spam agreement would probably fail
without United States participation, since the United States produces, or is the target of, a
large majority of global spam. See Webb, supra note 181.
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lead of the MoU, however, and give member countries the ºexibility
to adopt stricter, opt-in regimes if they choose to do so.253
The opt-in/opt-out debate may not, in fact, be a major stumbling
block for agreements.254 Empirical evidence shows that the most successful prosecutions have arisen out of opt-out regimes, largely because it is very difªcult to prove that a user has not opted in to receiving a particular message.255 With this in mind, it may be more
practical to adopt a seemingly lenient standard for spam enforcement.256
The minimum deªnition of spam can follow the lead of the EU
Directive 2002/58/EC, which established some “basic rules” that
deªne spam.257 These rules would declare spam illegal if it is UCE
(this would not encompass all UBE, however) and does not have a
working opt-out mechanism.258 In addition, any of the following items
would qualify a message as illegal spam: (1) it contains fraudulent subject headers, sender addresses, sender domains, or sender
identiªcation; (2) it is misleading in its nature; (3) it is otherwise illegal under existing laws for fraud, trademark, copyright, or other regulatory areas, such as unlicensed pharmaceutical sales.259
B. Resolving Enforcement Challenges
This anti-spam organization would set standards for what spam
crimes are worthy of international cooperation, and if these standards
were met, it would mandate that member states cooperate to the fullest extent possible.260 It would set a threshold, using such variables as
(1) quantity of spam; (2) amount of money lost due to fraud or identity theft; (3) other laws breached.261 Like the MoU, it would be
ºexible to enable cooperation regardless of the speciªc enforcement
bodies in various countries.262
This organization would also create a system through which any
state investigating a spammer that meets the above threshold can re253 See supra notes 224–226 and accompanying text.
254 Prince, supra note 90, at 3–4.
255 Id.
256 Id.
257 Gérard, supra note 8, at 5.
258 Id.; See supra notes 98–105 and accompanying text.
259 Gérard, supra note 8, at 5; see supra notes 98–105 and accompanying text.
260 See Prince, supra note 90, at 4–5 (noting that prosecutors are only willing and able
to prosecute the most egregious spam); see also MoU, supra note 121, at 5.
261 See, e.g., MoU, supra note 121, at 5.
262 See id. at 2–3.
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International Spam Regulation & Enforcement
349
quest that other states investigate individuals and servers located in
their jurisdiction and, if necessary, serve process to the relevant parties.263
Additionally, as a result of the jurisdictional problems associated
with identifying and locating spammers and investigating the servers
used in sending spam, the agreement should require that member
states establish laws asserting jurisdiction over domestic Internet activity as well as domains using their ccTLDs.264 This would enable, for
example, the United Kingdom to assert jurisdiction over all e-mails
sent from the .uk domain, even if the message was not sent from, or
even routed through, any servers in the country.265 This way, if the
United States wants to investigate a spammer who sent a message
from a British server, or who used a .uk e-mail address, the United
Kingdom government will have jurisdiction to investigate if it receives
a request under the agreement from the United States.266 At the same
time, the treaty must be ºexible enough to account for domestic privacy and conªdentiality rules.267
The parties would need to determine whether international
spam laws should, at a minimum, provide for civil or criminal enforcement, or both.268 Prosecuting spammers can be exceedingly expensive, largely because it is so costly to investigate a spammer, and
because so many must be prosecuted before a law can have any meaningful effect.269 Perhaps it would be effective for a treaty to mandate
that countries enable private parties, such as ISPs, to bring civil actions against spammers.270 This would shift the ªnancial burden away
from government to the parties that are most affected by spam.271
Given that some countries’ spam laws provide only civil causes of action, the agreement may once again require a lowest common denominator approach and mandate only that member states provide
263 See, e.g., id. at 5.
264 See Prince, supra note 90, at 8. For a deªnition of ccTLDs, see supra note 46 and
accompanying text.
265 See, e.g., Prince, supra note 90.
266 See, e.g., OECD Report, supra note 241, ¶ 51.
267 See MoU, supra note 121, at 8.
268 See Prince, supra note 90, at 4 (noting that Virginia has had success by permitting
ISPs to sue spammers); see also 15 U.S.C. § 7706(d), (f), (g).
269 See Prince, supra note 90, at 4–5.
270 See id. at 4.
271 Id.
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for state-initiated civil actions, while enabling cooperation with those
states that choose to impose criminal sanctions as well.272
Because spam touches so many areas of law, it may be very difªcult
to limit the scope of an anti-spam treaty to avoid interfering with existing law enforcement mechanisms that target other related crimes.273 It
is therefore important that the investigation and enforcement rules
conªne themselves to a narrow deªnition of spam, while relying on
existing laws and agreements to combat other offenses.274
C. Internet Governance and the Role of the Technology Industry
This proposed spam agreement can attempt to strike a balance
between those who feel that the Internet needs centralized authority
and those who prefer a “peer production” model.275 Perhaps this organization can help provide some technical leadership in the ªght
against spam, without mandating any speciªc technical solutions.276 It
could help lead the way by serving as a clearinghouse for spam technologies and a conduit for ISPs and policy makers around the
world.277 It would fund private research and development of antispam technologies and would be a central point of reference for governments and technology companies about the latest available standards to combat spam.278 In order to encourage competition and innovation among competing technology providers, however, this
organization would not mandate the use of any speciªc technologies.279 It would, however, make short-term recommendations, based
on empirical evidence, about what solutions have been shown to be
successful and would encourage cooperation between ISPs, users, and
technology companies to help root out the spam problem.280
This loose framework could provide guidance to those countries
that need it the most, including the developing nations that are just
beginning to invest in their Internet infrastructure.281 At the same
272 See, e.g., supra notes 214–216 and accompanying text.
273 See Magee, supra note 6, at 378–80.
274 See, e.g., id. at 378.
275 See supra notes 198–201 and accompanying text.
276 See Johnson, supra note 200, ¶¶ 39–43 (noting the value in decentralized decisionmaking).
277 Id.
278 Id.
279 See, e.g., id. ¶ 46 (arguing that peer governance and competition is well suited for
combating Internet security risks).
280 See, e.g., OECD Report, supra note 241, ¶ 54.
281 See Developing Nations Contribution, supra note 4.
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351
time, it would enable ISPs and other Internet companies to explore
new technologies that help keep up with the spammers when they
have the resources to experiment.282
This organization would also serve as a point of reference to help
national governments educate users and ISPs about the threat of
spam and how to avoid it.283 This would help clarify spam-ªghting
strategies and best-practices for those countries that need it.284
The ªght against spam does not need to be completely centralized,
as the domain name system is currently managed by ICANN.285 Instead,
this new organization can allow governments and private institutions to
deal with the problems in their own way, as long as certain minimum
standards are met.286 This solution could provide the centralized guidance that some countries need in their ªght against spam while also
keeping technical control decentralized, thereby quelling the fears that
centralized authority will stiºe free speech on the Internet.287
D. Advantages of This Approach
In general, this organization would provide for a ºexible, multitiered approach to combat spam.288 The ªrst tier is action-oriented, in
that it would mandate that member states enact spam laws, and commit themselves to cooperating in investigation and limited enforcement in the most egregious spam cases.289 It would provide basic legal
standards and provide a framework for international cooperation and
either civil or criminal enforcement.290
The second tier would be to serve as a central point of contact in
the war against spam, in its role as a promoter of new technologies
and cooperation between governments, ISPs, corporations, and users.291 This structure would balance the various issues in the Internet
governance debate by continuing to promote technological standards
and peer production to independently block spam, while providing a
282 Cf. Yoke & Tan, supra note 20, at 3 (noting that technology solutions are an “arms
race” between the technology companies and the spammers).
283 OECD Report, supra note 241, ¶¶ 57–59.
284 Id.
285 See supra notes 189 and accompanying text.
286 See generally Johnson, supra note 200.
287 See, e.g., Levinson, supra note 209.
288 See, e.g. Horton, supra note 2, ¶ 37.
289 See supra notes 222-234 and accompanying text.
290 Id.
291 See supra notes 285-287 and accompanying text.
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backstop for when these policies fail.292 This system would not “create
an international government for the Internet,” as some fear; it would
simply provide some basic standards for national governmental cooperation.293
Conclusion
As spam has continued to proliferate, the private sector, national
governments, and the international community have sought innovative
ways to combat the problem. It has become clear that a multi-tiered
strategy that leverages the skills in all of these areas is critical to combat
spam. New technologies and coordination among ISPs are a critical
ªrst step, and national governments can provide prosecution and other
legal remedies to go after spammers who get past these technologies.
Without international cooperation, however, spammers can avoid the
reach of governments by sending their spam across borders.
WSIS brought all of the relevant parties together to begin resolving
the spam problem. Now that the international community is united
against spam, they have an opportunity to develop new ways of coordinating the ªght. The international community should take this opportunity to negotiate a broad-ranging international agreement that takes
advantage of the skills of all relevant parties, without interfering with
the commercial rights of citizens or the sovereign prosecutorial power
of individual states.
Several smaller coordination and enforcement agreements have
been implemented so far, and in light of the commitments made at
WSIS, the international community can strengthen them with a
ºexible international agreement that requires members to get more
involved in the ªght against spam. At the same time, the organization
created by this agreement would serve as an important clearinghouse
for educational materials and technology standards for all relevant
parties to use in their efforts to eliminate the problem. There is no
“silver bullet” that will eliminate spam, but with the right planning,
the international community can develop a clear, coordinated, international strategy to combat spam now, while remaining ºexible
enough to adapt to evolving spam technologies in the future.
292 Id.
293 Johnson, supra note 200, ¶ 1.
FOR THE BEST INTERESTS OF THE
CHILDREN: WHY THE HAGUE
CONVENTION ON INTERCOUNTRY
ADOPTION NEEDS TO GO FARTHER, AS
EVIDENCED BY IMPLEMENTATION IN
ROMANIA AND THE UNITED STATES
Elisabeth J. Ryan*
Abstract: International adoption is a common occurrence in today’s society. In order to address the dangers linked with international adoption
such as baby trafªcking, the members of the Hague Conference on Private International Law produced the Hague Convention on Intercountry
Adoption in 1993, setting forth a minimum base of standards that every
ratifying government must abide by, placing the best interests of the child
above all other considerations. The United States, via the Intercountry
Adoption Act of 2000, is well on its way to fully realizing the Hague Convention mandates. Romania, however, has struggled to care for its children and subsequently imposed an international adoption ban. This Note
argues that the Hague Conference members need to amend the Hague
Convention in order to implement assistance for countries that may
struggle with its mandates. It also argues that, in order to avoid more nuanced problems in implementation, the Hague Convention should clarify
its vague language. Finally, it should include appeals and enforcement
procedures so that conºicts between two countries over an adoption proceeding can be dealt with by a third party.
Introduction
On December 26, 2004, a tsunami devastated the coasts of Indonesia, India, Sri Lanka, Thailand, and seven other countries in Southeast Asia;1 it killed an estimated 216,000 people.2 As media images of
the tragedy deluged the Western world, adoption agencies began
* Elisabeth J. Ryan is the Senior Articles Editor for the Boston College International &
Comparative Law Review. This Note is for her cousin Lily.
1 See, e.g., Michael Elliott, Sea of Sorrow, Time, Jan. 10, 2005, at 31.
2 See, e.g., Tsunami Death Toll Is at Least 216,000, Star-Ledger (Newark, N.J.), Dec. 27,
2005, at 21, available at 2005 WLNR 21015950.
353
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ªelding calls from concerned families eager to open their homes to
children orphaned by the disaster.3 As well-meaning as such people
were, however, international adoptions in times of crisis are completely unrealistic, as well as extremely ill-advised.4 Initially, intercountry adoptions in the United States depend not only on the law of the
child’s originating country but also on the law of the receiving family’s state, and federal immigration law.5 The process can take several
years of paperwork, investigation, home study, and other administrative matters.6 Additionally, there are extensive restrictions on who can
adopt children as well as which children can be adopted.7 The
ªnancial expense also can be enormous, averaging $10,000-$30,000
without any major obstacles.8
However impractical the rush of adoption interests may be after a
disaster such as the 2004 tsunami, it is not a new phenomenon, and it
arises most every time a political crisis or national disaster brings images of forlorn children to the forefront.9 In particular, after Romanian
Communist dictator Nicolae Ceausescu was overthrown and executed
in December 1989,10 popular television shows such as ABC’s “20/20”11
and CBS’s “60 Minutes”12 broadcasted horrifying images of thousands
of children living in orphanages marked by grossly inhumane conditions.13 The result of the graphic media coverage was a deluge of calls
to adoption agencies from people wanting to rescue the suffering children.14
3 See Siri Agrell, ‘I Saw This Kid on TV, That’s the Kid I Want’: Agencies Besieged by Calls,
Nat’l Post (Can.), Jan. 14, 2005, at A3, available at 2005 WL 59969520.
4 See Steve Friess, Adoption Not Best Way to Help Victims Now, Experts Say, USA Today, Jan.
10, 2005, at 4A, available at 2005 WLNR 335847.
5 See Elizabeth Bartholet, International Adoption: Propriety, Prospects, and Pragmatics, 13 J.
Am. Acad. Matrim. Law. 181, 186 (1996); Bridget M. Hubing, Student Article, International Child Adoptions: Who Should Decide What Is in the Best Interests of the Family?, 15 Notre
Dame J.L. Ethics & Pub. Pol’y 655, 684–90 (2001).
6 Bartholet, supra note 5, at 189. See generally Stephen Lewin, Adoption of Children from
Outside of the United States, in Litigation and Administrative Practice Course Handbook Series 287, 287 (Practicing Law Institute 2004), available at 199 PLI/Crim 287 (describing the step-by-step procedures and requirements for an adoption in the United
States of a child located in another country).
7 See e.g., Lewin, supra note 6, at 296–304; Hubing, supra note 5, at 666–73.
8 Bartholet, supra note 5, at 190.
9 See Agrell, supra note 3.
10 Steven Kreis, Lectures on Twentieth Century Europe: Nicolae Ceausescu, 1918–1989
(2004), http://www.historyguide.org/europe/ceausescu.html.
11 See Hubing, supra note 5, at 657 n.3, 658 n.9.
12 See Bartholet, supra note 5, at 200 n.44.
13 Id. at 201; Agrell, supra note 3.
14 Agrell, supra note 3.
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The Hague Convention on Intercountry Adoption
355
But while times of political and social crises tend to peak interest
in (and provide extensive media coverage of) international adoptions,
such adoption is a common and everyday practice among dozens of
nations.15 Countries involved in the increasing instances of such international adoptions have expressed concerns such as who can adopt
children, which children can be adopted, and what constitutes the
best interests of such children.16 The countries have also faced additional fears about baby selling on the black market, either to people
desperate for a child, or more sinisterly, to people looking to trafªc
children into slave labor, prostitution, or pornography.17
Almost 20,000 girls under the age of sixteen are sex slaves in
Cambodia; 200,000 children in West and Central Africa are enslaved
into forced labor, and between 18,000–20,000 individuals (which includes adults and children) are trafªcked into the United States every
year.18 As recently as November 2004, the British press reported that
undercover investigators in Romania took mere minutes to ªnd parents willing to sell their babies outright for as little as 500 Euros (approximately $663).19
This threat of child trafªcking is especially acute in the tsunamiravaged countries.20 The Indian government instituted a ban on all international adoptions beginning on January 5, 2005, after widespread
concerns that adoption amidst the tsunami rebuilding efforts might
provide a cover for snatching children in order to force them into
cheap labor in factories or into the sex trade.21 Additionally, such children faced enormous trauma during and after the disaster, and uproot-
15 See Lewin, supra note 6, at 291.
16 See Hubing, supra note 5, at 666–68.
17 See Jay Shankar, Call for Adoption Ban to Save Indian Tsunami Orphans from Trafªckers,
Agence France-Presse (Fr.), Jan. 6, 2005, available at 1/6/05 AGFRP 11:21:00 [hereinafter Call For Adoption Ban]; Cindy Sui, China’s Unspoken Shame: Parents Are Chief Culprits in
Baby Trafªcking, Agence France-Presse (Fr.), Feb. 10, 2005, available at 2/10/05 AGFRP
13:08:00 [hereinafter China’s Unspoken Shame]; EU: Frattini Announces Crackdown on Human
Trafªcking, ANSA-Pol. & Econ. News Serv., Dec. 22, 2004, available at 2004 WL
103595532.
18 See Linda Smith & Mohamed Mattar, Creating International Consensus on Combating
Trafªcking in Persons: U.S. Policy, the Role of the UN, and Global Responses and Challenges, 28
Fletcher F. World Aff. 155, 158–59 (2004).
19 The European Capital Where Babies Can Be Bought for Just £350, W. Daily Press (Eng.),
Nov. 23, 2004, at 8, available at 2004 WL 64463905.
20 See, e.g., Call For Adoption Ban, supra note 17.
21 Id.; Eva C. Komandjaja, Govt. Bans Adoption to Protect Orphans, Jakarta Post (Indon.), Jan. 5, 2005, at 2, available at 2005 WLNR 132347.
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ing them to face a new family and surroundings so quickly would only
add onto that stress and psychological damage.22
To address all the concerns surrounding international adoption,
sixty-eight countries convened in 1993 to draft the Hague Convention
on Protection of Children and Co-operation in Respect of Intercountry
Adoption (Hague Convention),23 the ªrst treaty establishing minimum
standards in international adoption procedures.24 Despite this major
step to regulate intercountry adoptions, however, the Hague Convention falls far short of ensuring the best interests of children involved in
international adoptions.25
Part I of this Note discusses the general history of international
adoption, with particular focus on the development of the Hague Convention on Intercountry Adoption, the status of children in Romania,
and the status of international adoption in the United States. Part II
focuses on the major aspects of the Hague Convention, as well as the
failure of Romania to implement the Hague Convention, and the
United States’ imminent success in doing so. Part III argues that the
Hague Convention signatory countries should take a more active role
in ensuring that the Hague Convention is carried out where it is most
needed, speciªcally in countries like Romania. It also highlights the
need for the Hague Convention to be amended in order to clarify certain aspects of language, as well as institute an appeals process so that
countries like the United States can fully beneªt from the Hague Convention.
I. History and Background
A. Competing Viewpoints on the Merits of International Adoption
The United States and other wealthy, Western, industrialized nations with low birthrates and relatively small numbers of children in
need of homes take in the largest number of internationally adopted
children.26 These children are adopted from poor countries with high
birthrates and huge numbers of homeless or institutionalized chil-
22 See Komandjaja, supra note 21.
23 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, May 29, 1993, S. Treaty Doc. No. 105-51, 32 I.L.M. 1134 [hereinafter
Hague Convention].
24 See id. intro, 32 I.L.M. at 1134.
25 See Bartholet, supra note 5, at 194–95.
26 Id. at 181.
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dren.27 Wealthy countries have seen a decrease in domestic adoptable
children due to the availability of abortion, contraception, family planning education, and a reduced stigma against single parenting.28 In
contrast, the home countries of internationally adopted children tend
to be marred by political strife, war, and often devastating levels of poverty.29 Stark political and economic differences create a virtual supplyand-demand economy of children,30 but controversy nonetheless rages
over the practice of international adoption.31
Critics condemn international adoption as exploitative,32 imperialistic,33 and detrimental to children because of the separation from
their home culture and society.34 Supporters of international adoption, however, stress that the practice provides the only realistic opportunity for many children to have a permanent home and family.35
Both supporters and opponents rely on the best interests of the children to back up their views and arguments.36
B. History of the Hague Convention on Intercountry Adoption
To address speciªc problems with international adoption—namely
the creation of legally binding standards, a system of supervision to ensure observation of those legal standards, and communication and cooperation between authorities in both countries involved in any particular adoption—the Hague Conference of Private International Law
(Hague Conference) produced the Hague Convention on Protection
of Children and Co-operation in Respect of Intercountry Adoption in
27 Id. at 182.
28 Id. at 181.
29 See id. at 182.
30 See Crystal J. Gates, Note, China’s Newly Enacted Intercountry Adoption Law: Friend or
Foe?, 7 Ind. J. Global Legal Stud. 369, 376 (1999) (explaining that framing the international adoption debate in terms of supply-and-demand reduces the humanity of the children involved); Jacqueline Bhabha, Moving Babies: Globalization, Markets and Transnational
Adoption, 28 Fletcher F. World Aff. 181, 182–83 (2004) (noting that it is more of a demand-driven economy, as the ample “supply” of children would exist independently).
31 Bartholet, supra note 5, at 183; see Kathleen Ja Sook Bergquist, International Asian
Adoption: In the Best Interest of the Child?, 10 Tex. Wesleyan L. Rev. 343, 347 (2004); Hubing, supra note 5, at 663–66.
32 See Bartholet, supra note 5, at 182.
33 Hubing, supra note 5, at 660.
34 See Bartholet, supra note 5, at 182.
35 See id. at 182, 197.
36 See id. at 184.
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May 1993.37 Participating in the deliberations were almost all thirtyeight Hague Conference Member States and thirty invited nonmember states, chosen particularly because of their role in international adoption.38 Overall, the Hague Convention sought to establish
that any international adoptions are in the best interest of the child,
above everything else.39
The Hague Convention marked the ªrst major development of
international minimum standards in intercountry adoption procedures.40 All states that sign the Hague Convention show an intention
to ratify it, though no further action is necessary; those that do ratify
the Hague Convention are then legally bound to apply it to their domestic and international laws.41
Just four years earlier, in 1989, the United Nations adopted the
Convention on the Rights of the Child (CRC).42 The main philosophy
of the CRC is that society has an obligation to meet the fundamental
needs of children.43 These obligations include not only basics like
health care and education, but also a range of social, political, and
civil rights for all children.44 The CRC has reached almost universal
ratiªcation, an unprecedented status for a human rights treaty.45
The CRC is purposely neutral, however, on adoption in general.46
Several traditionally “receiving” countries47 in international adoption,
such as the United States, had lobbied for language that would have
obligated all countries to take “appropriate measures to facilitate
permanent adoption of the child.”48 Such language would seem to be
harmonious with the rest of the document, which places a great deal
of emphasis on the role of the family as the “fundamental group of
37 Hague Convention, supra note 23, intro., 32 I.L.M. at 1134; Sarah Sargent, Suspended
Animation: The Implementation of the Hague Convention on Intercountry Adoption on the United
States and Romania, 10 Tex. Wesleyan L. Rev. 351, 354–55 (2004).
38 Hague Convention, supra note 23, intro., 32 I.L.M. at 1134.
39 See Sargent, supra note 37, at 355.
40 Hague Convention, supra note 23, intro., 32 I.L.M. at 1134.
41 Sargent, supra note 37, at 354.
42 G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (Nov. 20, 1989), reprinted in 28 I.L.M.
1448 (1989) [hereinafter CRC].
43 Rebeca Rios-Kohn, Intercountry Adoption: An International Perspective on the Practice and
Standards, 1(4) Adoption Q. 3, 11 ( June 1998).
44 Id.
45 Id. at 4.
46 Id. at 14.
47 Countries in which foreign children tend to be adopted are known as “receiving”
countries; countries from which children tend to be adopted are known as “sending”
countries. See Bartholet, supra note 5, at 186.
48 Rios-Kahn, supra note 43, at 14.
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society and the natural environment for the growth and well-being of
all [society’s] members and particularly children.”49 The UN member
states, however, rejected language that would have explicitly cemented
an obligation for nations to facilitate adoption because adoption was
not the sole option for providing children with families.50 Additionally, some drafters emphasized that adoption frequently contravened
the best interests of the child, and thus would have been inconsistent
with the objective of the document to protect the rights of the child.51
The Hague Convention on Intercountry Adoption proved to be a
more detailed consideration of dissenters’ objections to the CRC’s failure to facilitate international adoption.52 The Hague Convention addressed the need for legal processes to crack down on threats like
falsiªcation of documents, abduction and sale of children, and unregulated organizations essentially running the adoption process.53 In the
most basic sense, the agreement recognized a need for a minimum set
of international standards governing international adoptions—rules
that each participating state could examine, adopt, abide by, and be
conªdent that other ratiªers were doing so as well.54
C. History of Child Welfare in Romania and the Country’s Role in
International Adoption
In few countries has the plight of orphans been as tragic or as publicized as in Romania.55 During Nicolae Ceausescu’s rule of Communist
Romania beginning in 1944, he forced every woman to bear ªve children while simultaneously banning birth control and abortion,56 resulting in tens of thousands of unwanted babies being left in state institutions run by a government in which corruption was insidious.57 Since
Ceausescu’s overthrow in 1989, approximately 30,000 Romanian children have been adopted worldwide,58 including some 8,300 by Ameri49 See CRC, supra note 42, pmbl.
50 See Rios-Kahn, supra note 43, at 14.
51 See id.
52 See id. at 15.
53 Id.
54 See id. at 15–16.
55 See Bartholet, supra note 5, at 200–01.
56 Margaret Liu, Comment, International Adoptions: An Overview, 8 Temp. Int’l & Comp.
L.J. 187, 187 (1994).
57 See Noelle Knox, Orphans Caught in the Middle, USA Today, May 18, 2004, at D1,
available at 2004 WL 58556956.
58 Romania: New Law Hinders Adoptions by Foreigners, ANSA-Eng. News Serv., Jan. 6,
2005, available at 1/6/05 ANSA 12:03:00 [hereinafter Romania: New Law].
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cans.59 An estimated 40,000 children, however, still remain in orphanages.60 After the media exposed the squalid conditions of Romania’s
orphanages and institutions to the outside world, the country’s authorities undertook a supposed major overhaul to improve the lives of children.61
Signiªcant ªnancial contributions from foreign governments and
various non-governmental organizations allowed immediate superªcial developments.62 The government made visible improvements to the physical institutions, including carpeting, televisions, and
toys.63 While these improvements certainly contributed to better living conditions for children in the immediate sense, they proved to be
short-lived and addressed public relations more than the root of the
problem.64 Abject poverty, government mismanagement, and the lack
of any coherent long-term strategy to improve the living standards of
Romanian citizens remained serious problems.65 The Bucharest-based
Institute for Researching the Quality of Life reported in 1993 that
only 10.3% of Romanian children lived in decent conditions, while a
staggering 56.6% lived in poverty.66
The severe economic difªculty of Romanian citizens may have
been the primary reason that many children were abandoned by their
families to orphanages, but numerous other factors also contributed.67 These include an increase in mothers under the age of twenty,
ethnic origin (in particular, Roma families68 have had high birth
rates, extremely low income, and high rates of delinquency), and limited access to any form of family planning.69 The Romanian government structure also contributed to high rates of abandonment due to
a lack of social services and a policy in the ªrst years after 1989 that
encouraged institutionalization of children.70
59 Knox, supra note 57.
60 Romania: New Law, supra note 58.
61 See Camelia Manuela Lataianu, Social Protection of Children in Public Care in Romania
From the Perspective of EU Integration, 17 Int’l J.L. Pol’y & Fam. 99, 99 (2003).
62 See id. at 104.
63 Id.
64 See id. at 99.
65 See id. at 100.
66 Lataianu, supra note 61, at 100.
67 See id.
68 Roma are sometimes called Gypsies. B.A. Robinson, The Religion and Culture of the
Roma, http://www.religioustolerance.org/roma.htm.
69 Lataianu, supra note 61, at 101.
70 Id. at 101.
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The newly democratic Romanian government repealed the law
that prohibited abortion almost immediately after the overthrow of
1989, leading some to expect that the number of abandoned babies
would decrease signiªcantly in the coming years.71 By 1994, however,
the number of children residing in institutions had actually surpassed
1990 ªgures by 15%.72 When Romania was still under Communist
control, the government required children to leave residential care at
the age of eighteen, providing them with state jobs and housing, even
though most of them lacked any employment qualiªcations.73 But
after the Communist collapse, such children had virtually no chance
of ªnding a job and being able to live on their own.74 Thus, most of
them simply remained in institutions well after their eighteenth
birthdays, despite the requirements of the law.75
The post-Ceausescu government initially encouraged international
adoption, which contributed to a decrease in institutionalized children
in the ªrst years of the 1990s.76 But then the government abruptly
passed legislation severely limiting international adoptions, thus contributing to the startling rise in institutionalized children as shown in
the 1994 ªgures.77
But by the mid-1990s, external events brought new changes to
Romania.78 In 1993, the government signed an Association Agreement aimed at allowing it to become part of the European Union
(EU).79 In order to bring membership into force, however, the EU
placed four conditions on Romania, including recognition of democracy and human rights.80 The EU Commission Opinion on Romania’s
Application for Membership declared that the condition of children
in the country was a human rights priority.81
To this end, Romania became one of the ªrst three countries to
sign and ratify the Hague Convention in 1994.82 Romania’s dual
71 See id. at 102.
72 Id.
73 See id. at 103.
74 Lataianu, supra note 61, at 103.
75 Id.
76 See id.
77 See id.
78 See id. at 112.
79 Id.
80 See Lataianu, supra note 61, at 112. The other conditions were a functioning market
economy, a capacity to compete within the EU market, and an ability to adhere to the political, economic, and monetary aims of the EU. Id. at 112–13.
81 Id. at 113, 114.
82 Sargent, supra note 37, at 355.
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commitment to the Hague Convention and to the EU’s requirements
that children’s rights be prioritized seemed to be in harmony.83 But
the goals eventually clashed, and pressure from the EU resulted in a
ban rendering international adoption practically impossible.84
D. History of International Adoption in the United States
The United States is the destination for nearly half of all internationally adopted children.85 Intercountry adoption was virtually nonexistent until the aftermath of World War II, when members of the
U.S. armed forces returned home with tales of children orphaned in
the war-ravaged countries of Germany, Italy, Greece, and the rest of
Europe.86 These orphans were largely white and “ªrst-world,” leading
Americans to open their homes, willing for the ªrst time to provide a
compassionate home for children victimized by world events.87
International adoption gained true widespread acceptance in the
United States after the Korean War when U.S. GIs returned home
having fathered stigmatized children overseas with Korean women.88
Some 38,000 Korean children were adopted in the United States from
1953–1981.89 In 1996, however, the Korean government (cementing a
trend in policy that began in the 1970s) banned all international adoptions of Korean children by foreigners.90
Presently, most foreign-born children adopted in the United States
are from China.91 Due to the ofªcial Chinese government policy of one
child per family, thousands of Chinese babies—overwhelmingly female
in a culture that values males over females—are abandoned each year,
resulting in crowded institutional orphanages.92 The implications of
the Hague Convention are particularly relevant to the United States
83 See Lataianu, supra note 61, at 107; Sargent, supra note 37, at 355.
84 See, e.g., Romania: New Law, supra note 58.
85 Hubing, supra note 5, at 660 (stating that out of estimated 20,000 international
adoptions each year, nearly half involve U.S. citizens as the adoptive parents).
86 See id. at 661.
87 See Bergquist, supra note 31, at 344.
88 See id. at 343; Hubing, supra note 5, at 662.
89 Hubing, supra note 5, at 662.
90 See id.
91 Id.
92 Gabriela Marquez, Comment, Transnational Adoption: The Creation and Ill Effects of an
International Black Market Baby Trade, 21 J. Juv. L. 25, 29–30 (2000); see China’s Unspoken
Shame, supra note 17.
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because of the country’s extensive involvement in the practice of international adoption.93
II. Discussion
A. Major Aspects of the Hague Convention
The most basic and vital purpose of the Hague Convention is to
ensure that intercountry adoptions are made “in the best interests of
the child.”94 Signiªcantly, it recognizes, for the ªrst time in an international agreement, that international adoption may itself be in the best
interest of the child.95 The Hague Convention states that every child
should grow up in a family environment, and that international adoption may be the only way to achieve this end for some children.96 Thus,
the Hague Convention not only provides an avenue to ensure that international adoptions are safe and legal, but it also implicitly encourages international adoption over less beneªcial alternatives such as
home-country institutionalization or even domestic adoption.97
The Hague Convention’s regulation of international adoption
requires each ratifying country to undergo major internal changes in
their international adoption processes.98 Because these changes encourage smooth and accountable procedures, they represent a clear
endorsement of international adoption.99 The Hague Convention
requires that each state party create a Central Authority to oversee all
intercountry adoptions involving that state.100 Considering the time
and resources required to institute these changes, international adoption necessarily takes a prominent place in the state’s social and political consciousness.101
93 See Hubing, supra note 5, at 660.
94 See Hague Convention, supra note 23, pmbl.
95 See id.; Bartholet, supra note 5, at 192; Bureau of Consular Affairs, U.S. Dept. of State,
Hague Convention: Advantages and Provisions (2005), http://travel.state.gov/family/adoption/convention/convention_2300.html.
96 See Hague Convention, supra note 23, pmbl.
97 See id. pmbl., art. 1.
98 See id. arts. 6–13. Some of these changes are setting up a Central Authority, communicating with other countries’ Central Authorities, and accrediting and monitoring adoption agencies. Id.
99 See id. Even though the Hague Convention never explicitly states this proposition, it
is clear that, taken as a whole, the Convention endorses the practice of international adoption. See id.
100 Hague Convention, supra note 23, arts. 6–13.
101 Cf. Rios-Kohn, supra note 43, at 27 (noting that many countries do not actually have
the resources to institute the changes).
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The Central Authority’s duties are to ensure day-to-day compliance
with the Hague Convention’s overall goal of serving the best interests
of the children.102 The duties include preventing improper ªnancial
gain in connection with an adoption,103 collecting and preserving information about each child and prospective adoptive parent(s),104 and
facilitating the goal of adoption.105 To facilitate these operations, the
Central Authority may delegate some responsibilities to other public
authorities or other bodies.106 Once accredited, these bodies may only
operate on a non-proªt basis, must be staffed by people qualiªed to
work in international adoption, and are under the supervision of the
Central Authority with respect to operation and ªnances.107
More speciªcally, the Central Authority for the country of the prospective parent(s) must determine eligibility and prepare a comprehensive report about the applicant(s).108 The Central Authority of the
child’s home country must also determine adoptability and prepare a
parallel report on the child.109 Each Central Authority must review the
other’s report and agree on each speciªc adoption before it takes
place.110 These requirements are signiªcant in international adoption,
as they facilitate detailed communication between each involved country and ensure from the outset that an adoption can proceed.111 This
eliminates the danger that a prospective parent may not meet the requirements or standards of the child’s home country, and thus be rejected after the investment of signiªcant time, money, and emotion in
the process.112
Further, each Central Authority must take all necessary steps to
ensure that the child can leave his or her home country and subsequently be able to enter and permanently reside in the parental country.113 Again, the fact that the Central Authorities are required to ensure emigration and immigration for the child eliminates the possibility
102 See Hague Convention, supra note 23, pmbl., art. 6.
103 Id. art. 8.
104 Id. art. 9(a).
105 Id. art. 9(b).
106 Id. art. 9.
107 Id. art. 11.
108 Hague Convention, supra note 23, art. 15.
109 Id. art. 16(1)(a).
110 See id. art. 17.
111 See id. art. 17.
112 Cf. Bartholet, supra note 5, at 186–90 (describing the negative implications of the
current restrictive immigration laws in the United States).
113 Hague Convention, supra note 23, art. 18.
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365
that an almost-complete adoption will be halted in the last step due to
conºicting or misunderstood laws between parties.114
The Hague Convention’s requirements for the creation and duties of each Central Authority thus signiªcantly streamline the process
of international adoption and ensure full disclosure of information
and compliance with each country’s laws.115 These basic, practical requirements advance the Hague Convention’s goal of facilitating international adoption in the child’s best interests.116 Even though
these are only minimum requirements, their implementation raises
serious questions about their enforceability and practicality.117 Romania’s experience demonstrates those difªculties.118
B. Romania’s Failed Efforts to Comply with Both the Hague Convention and
EU Membership Requirements
In 1997, the Romanian government created the Department for
Child Protection (DCP), with the goals of (1) creating a comprehensive, country-wide plan to monitor children’s rights and (2) developing internal legislation that would bring Romanian law into line with
other countries.119 When the Romanian government began to undertake reforms in 1997, 98,872 children resided in institutions.120 Of
these children, more than half had two known parents, but they were
placed in institutions along with actual orphans because they had had
no contact with either parent for at least six months.121 The DCP implemented a new philosophy for institutions (renamed “placement
centres”) ostensibly to recognize and observe the rights of every child,
to provide a familial atmosphere for children, to integrate the center
as a part of the local community, to train staff professionally, and to
reduce the number of children living in residential care.122
114 See Bartholet, supra note 5, at 186–90.
115 Compare Hague Convention, supra note 23, arts. 6–22 (focusing, as a whole, on simplifying and centralizing international adoptions), with Lewin, supra note 6, at 292–319
(setting out the currently complex and intricate process of international adoption in the
United States).
116 See Hague Convention, supra note 23, art. 1(a).
117 See Bartholet, supra note 5, at 194–95; Notesong Srisopark Thompson, Note, Hague
Is Enough?: A Call For More Protective, Uniform Law Guiding International Adoptions, 22 Wis.
Int’l L.J. 441, 443 (2004).
118 See infra notes 119–69 and accompanying text.
119 See Lataianu, supra note 61, at 107.
120 Id. at 108–09.
121 See id. at 109.
122 Id.
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Despite these admirable and well-intentioned goals, implementation has been difªcult.123 The decentralization meant that local authorities were responsible for funding, resulting in vast differences between institutions across the country that depended on local
ªnancing.124 The local authorities also disagreed on the priority to be
given to child welfare reform in their respective budgets.125 Universities
only re-established degree programs in social work and therapy training
in 1990, thus hindering the goal of professionalized staff—arguably one
of the most important aspects of the reform, as it sought to provide
trained social workers, nurses, and teachers.126 The need for individuals
specialized in these areas thus exceeded the supply, which was worsened by the fact that salaries in institutions were very low.127
In view of the fact that Romania was one of the ªrst to ratify the
Hague Convention, the DCP could logically have been structured as
Romania’s Central Authority.128 The country ignored this aspect of
the Hague Convention, however, and arguably ignored the overall
goal of facilitating international adoption at all, by proposing the relatively drastic measure of de-centralizing orphanage and institutional
care for children, essentially leaving control to local authorities.129
Thus, while Romania was focused on satisfying the European Union’s mandate that children’s rights be made a priority, it failed to facilitate international adoption procedures as part of these rights.130
Romania essentially disregarded the obligations it had pledged to respect by signing the Hague Convention.131 Rather than recognize international adoption as an integral part of developing a child welfare
program, Romania solely concerned itself with satisfying the EU’s requirements of having an adequate domestic child care system.132
Due to the dire status of institutionalized children in Romania, the
Romanian government, with the apparent support of the EU, may have
123 Id. at 111.
124 See id.
125 See Lataianu, supra note 61, at 111.
126 See id. at 101, 111.
127 Id. at 111.
128 See id. at 107 (describing that the DCP had originally been conceived to comply
with the Hague Convention but failed in actuality because one of its central tenets was decentralization).
129 See id. at 108, 111.
130 See id. at 112–19 (describing the multiple changes that the Romanian government
made to its child welfare system, none of which complied with the Hague Convention).
131 See Sargent, supra note 37, at 365–66.
132 See Lataianu, supra note 61, at 115 (offering an example of a rushed action focusing
only on meeting EU requirements).
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viewed overhauling its internal child welfare program as the most important step in its human rights compliance project.133 This view, however, was shortsighted.134 Both the Romanian government and the EU
should have recognized that the obligation to comply with the Hague
Convention was not a separate, external step to be dealt with later but a
means of enhancing the welfare of Romania’s children as a whole.135
Perhaps if Romania and the EU had explicitly recognized international adoption as an integral aspect of improving children’s welfare,
the program would have had a better chance at success.136 Instead, because of the virtual ban on international adoption ofªcially imposed in
2005, the goals of the Hague Convention have not been met.137
In 1997 and 1998, the EU Commission praised Romania’s progress
and implementation of de-centralization and improved forms of
care.138 The EU status report noted encouraging evidence that more
children were being re-integrated into their families or adopted by foster parents.139 In 1999, however, the annual report bluntly stated that
living conditions in all child care institutions had seriously deteriorated
in only a year, and that the institutions’ basic infrastructure, hygiene,
medical care, nutrition, and general assistance were unacceptable.140
The report mandated that the Romanian government give top
priority to child protection and take back primary responsibility from
local authorities to ensure the welfare of children in residential institutions.141 The report explicitly stated that the government needed to
improve food, medical services, clothing, heating, and staff.142
Yet the EU failed to note that a comprehensive system for international adoption could greatly help Romanian orphans.143 Perhaps the
EU Commission felt that a government that was incapable of providing
133 See id. at 112–14.
134 See id. at 115.
135 See id. at 112; see also Bartholet, supra note 5, at 200–01 (emphasizing that the real
focus should be on getting children out of institutions and into families).
136 See Lataianu, supra note 61, at 107–20.
137 See Hague Convention, supra note 23, pmbl., art. 1; Romania: New Law, supra note 58.
138 See Lataianu, supra note 61, at 113.
139 European Commission, Regular Report from the Commission on Romania’s
Progress Toward Accession 10 (1998), http://europa.eu.int/comm/enlargement/report_
11_98/pdf/en/romania_en.pdf [hereinafter 1998 Regular Report].
140 European Commission, 1999 Regular Report from the Commission on Romania’s
Progress to Accession 15 (1999), http://europa.eu.int/comm/enlargement/report_
10_99/pdf/en/romania_en.pdf [hereinafter 1999 Regular Report].
141 Id. at 16.
142 Id.
143 See id.
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such basics as clean facilities and adequate food for children could not
implement an additional program.144 It is more likely, though, that the
EU simply failed to emphasize the important role of international
adoption in improving the lives of children by removing them from
substandard institutional care and into the homes of loving families, as
the Hague Convention had emphasized several years earlier.145
Regardless, with the admonishment jeopardizing its EU membership bid, the Romanian government created a new agency, the National Agency for the Protection of the Child’s Rights.146 The Agency
did adopt new goals for child welfare—improving parental responsibility, discouraging abandonment, supporting families in difªculty,
and bringing greater transparency to adoption.147 While this new
agency could have functioned as a Central Authority under the Hague
Convention, the government again failed to speciªcally address international adoption, thus failing to take the Hague Convention objectives fully into account.148
The 2000 EU Commission report ªnally addressed the adoption
issue, expressing particular concern that Romania’s legislation governing adoption practices allowed considerations other than the best
interest of the child to inºuence adoption decisions.149 The Romanian government responded to this negative report by placing its
children’s agency directly under the Secretary General, which the EU
Commission subsequently praised as an important development in
dealing with children’s issues.150 Almost immediately afterwards, however, Romania suspended all intercountry adoptions.151
Unfortunately, the EU Commission praised this moratorium as “a
mechanism to end practices that were incompatible with Romania’s
international obligations.”152 Instead of recognizing that international
144 See id. at 15–16.
145 See Hague Convention, supra note 23, pmbl.; 1999 Regular Report, supra note
140, at 15–16.
146 Lataianu, supra note 61, at 114. This agency was created within just two months of
the EU report. Id.
147 See id. at 116.
148 See id.
149 European Commission, 2000 Regular Report from the Commission on Romania’s
Progress to Accession 20 (2000), http://europa.eu.int/comm/enlargement/report_
11_00/pdf/en/ro_en.pdf [hereinafter 2000 Regular Report].
150 See Commission of the European Communities, 2001 Regular Report from the
Commission on Romania’s Progress to Accession 24 (2001), http://europa.eu.int/
comm/enlargement/report2001/ro_en.pdf [hereinafter 2001 Regular Report].
151 See id.
152 See id.
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adoption could have provided a welcome alternative to the lives many
children faced in Romanian institutions, the EU focused on the reduction in opportunities for child trafªcking and other abuses.153
While these are legitimate concerns, of course, the EU could have encouraged a system to regulate them within a ºuid system of adoption,
rather than closing off the beneªts of adoption in favor of none at
all.154 The moratorium was intended as a temporary measure to allow
the Romanian government to institute new procedures of international adoption.155
Yet, even before legislative reforms could be seriously considered,
Emma Nicholson, the European Union’s special envoy to Romania,
harshly criticized the country for its persistent abandonment of children, child abuse and neglect, child trafªcking, and particularly, international adoption’s role in contributing to these dangers.156 Nicholson
determined in 2004 that Romania was simply not respecting the moratorium that it had imposed on itself three years earlier.157
When, in February 2004, the Italian government announced publicly that Romania had sent 105 children to its country under dubious
pretexts, the EU issued a warning to Romania to halt all international
adoption in violation of the moratorium or face an end to its EU membership bid and a loss of all ªnancial aid.158
In light of this criticism, Italian ofªcials reversed their initially
negative stance, defending the 105 adoptions by Italian families as humanitarian and in the best interests of the children.159 But these adoptions were only part of the picture.160 Romania may have sent as many
as 1000 adoptees abroad in contravention of the 2001 ban, although
only Italy spoke openly, thus allowing the EU to take a clear stand
153 See id.
154 See id. at 24–25 (noting that the EU favored no adoptions until they could be in the
best interests of the child).
155 See Sargent, supra note 37, at 370.
156 See Adoptions Suspended After Critical Report, San Jose Mercury News, June 22, 2001,
at 4A, available at 2001 WLNR 1511660; Ambrose Evans-Pritchard, Stop Child Exports or Face
Ban, EU Tells Romania, Daily Tel. (Eng.), Feb. 4, 2004, at 15, available at 2004 WL
68215850.
157 See Evans-Pritchard, supra note 156.
158 See id.
159 See Italy Condemns “Unjustiªed” Criticism of Romania on Child Adoptions, BBC Monitoring Eur., Feb. 5, 2004, available at 2004 WL 63906111.
160 See Baby Trade—Doubtful Adoptions of Romanian Children, Economist (Eng.), Feb. 7,
2004, available at 2004 WL 62016788.
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against Romania’s membership if the adoption system was not cleaned
up.161
In response, Romania passed legislation in June 2004 that replaced the apparently ignored moratorium with, in effect, an outright
ban on all international adoptions of Romanian children.162 The government passed the legislation in the face of opposition by the United
States, which favored a lifting of the moratorium and staunchly opposed a permanent adoption ban.163 The U.S. ambassador to Bucharest described the law as a “tragedy,” as it would bar thousands of families from legitimately adopting some of the 40,000 orphans in
Romania thereby providing them with a high standard of living within
the United States.164 Nonetheless, the law came into force on January
1, 2005.165 The United States is still ªercely ªghting the law—in November of 2005, Rep. Chris Smith of New Jersey introduced legislation in the House of Representatives that urged Romania to reform its
adoption policies in order to allow international adoption for institutionalized children.166 And, indeed, the ban has left thousands of
Romanian orphans—many of them infants under the age of two—in
an indeªnite institutional limbo.167
In essence, Romania has ignored the obligations it assumed upon
ratiªcation of the Hague Convention.168 The EU has assisted this abrogation by supporting a ban on international adoption, when it should
have, and could have, helped Romania develop an honest and effective
system of international adoption looking to the best interests of children.169
161 See id.
162 Ian Traynor, Romania Bans Adoptions in Other Countries, Guardian (Eng.), June 16,
2004, at 17, available at 2004 WL 75688211.
163 See id.
164 See Harry de Quetteville, EU Forces Romania Into Ban on Foreign Adoptions, Daily
Tele. (Eng.), June 17, 2004, at 13, available at 2004 WL 82001243.
165 Adoptions: Romania Conªrms Draconian Measures, ANSA-Eng. News Serv., Jan. 15,
2005, available at 1/15/05 ANSA 14:03:00.
166 U.S. Fed. News, Rep. Smith’s Legislation Urges Romania to Immediately Reform Harmful
Adoption Policies, Nov. 18, 2005, available at 2005 WLNR 18709200.
167 Elisabeth Rosenthal, Romanian Law Backªres, Leaving Orphans in Limbo, N.Y. Times,
June 23, 2005, at A6, available at 2005 WLNR 9934194.
168 See Sargent, supra note 37, at 355.
169 See 2001 Regular Report, supra note 150, at 24–25.
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C. Hague Convention Implementation in the United States
In stark contrast to Romania’s inaction on its Hague Convention
responsibilities, the United States has taken signiªcant steps to implement the treaty.170 The United States signed the Hague Convention on
March 31, 1994, but it has not yet ratiªed it.171 The Department of
State is in the process of readying implementation as of March 2006,
and will presumably ratify the Hague Convention upon completing implementation.172
When the United States does ratify the Hague Convention, its
readiness to implement it should be far better than that of Romania.173
Romania hastily ratiªed the Hague Convention without any implementation measures in place, and the social and political atmosphere surrounding the treatment of children and adoption is radically different
from that of the United States.174 One obvious difference between the
two countries is the fact that the United States is a “receiving” country
for international adoption, whereas Romania is a “sending” country.175
The primary focus of the United States is thus not in facilitating adoption of its children but in preparing prospective parents to adopt children internationally.176
The United States began its preparation for Hague Convention
implementation in 1998, under President Clinton.177 Within two
years, Congress passed The Intercountry Adoption Act of 2000178 and
authorized the United States to ofªcially ratify the Hague Convention.179 The Intercountry Adoption Act (IAA) provides for implemen170 See Sargent, supra note 37, at 372–77.
171 Hague Conference on Private International Law, Status Table, Convention of 29
May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (2006), http://www.hcch.net/index_en.php?act=conventions.status&cid=69.
172 See Bureau of Consular Affairs, U.S. Dept. of State, Hague Convention on Intercountry Adoption and the Intercountry Adoption Act of 2000: Background (2006), http://
travel.state.gov/family/adoption/convention/convention_2290.html [hereinafter HC and
IAA Background].
173 Compare Lataianu, supra note 61, at 107–08 (describing the ongoing problems that
Romania had with its child welfare system), with Lewin, supra note 6, at 292–319 (describing the current U.S. process of international adoption that is, though complicated, fully in
place and part of the U.S. legal system).
174 See Lataianu, supra note 61, at 112–14; Lewin, supra note 6, at 322; Sargent, supra
note 37, at 355.
175 See Bartholet, supra note 5, at 186, 201.
176 See Thompson, supra note 117, at 446.
177 See HC and IAA Background, supra note 172.
178 Intercountry Adoption Act of 2000, 42 U.S.C. § 14901–14954 (2000).
179 See HC and IAA Background, supra note 172.
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tation of all the major Hague Convention requirements.180 It designates the Department of State as the Central Authority,181 with the
Secretary of State responsible for ensuring that the Central Authority
functions in compliance with the Hague Convention.182
The IAA resolves many of the major obstacles that prospective
U.S. parents had previously faced in the process of international
adoption.183 These obstacles include unclear and narrow deªnitions
about who qualiªes as an adoptable “orphan,”184 complex immigration procedures,185 and varying state-speciªc adoption laws.186
Without the Hague Convention’s mandate of a Central Authority
with speciªc duties to ensure streamlined immigration procedures, the
United States probably would not have implemented federal legislation
like the IAA.187 Traditionally, adoption is governed speciªcally by individual states.188 Immigration procedures, on the other hand, are within
the jurisdiction of the federal government, and so federal legislation
was necessary to govern international adoptions.189
The IAA, as of March 2006, is yet to be fully implemented,
though in February 2006, the United States took a signiªcant step towards implementation by ªnalizing the rules governing the accreditation of adoption agencies.190 The IAA can be expected to have, along
with the Hague Convention itself, a dramatic and welcome impact on
U.S. procedures, as compared to the current immigration process for
foreign-born adoptees in the United States.191
Currently, unless the Citizenship and Immigration Service (formerly the Immigration and Naturalization Service) grants a child entering the United States either status as a citizen or as a Legal Permanent Resident,192 a child cannot enter and thus cannot reside in the
180 See id.; supra notes 37-55.
181 42 U.S.C. § 101(a)(1).
182 See id. §§ 101(a)(2), 102.
183 See Bartholet, supra note 5, at 187–90.
184 See id. at 187–88.
185 See Lewin, supra note 6, at 294–307.
186 See Hubing, supra note 5, at 690.
187 See Bartholet, supra note 5, at 195.
188 See Lewin, supra note 6, at 292.
189 See id.
190 Press Release, Bureau of International Information Programs, U.S. Dept. of State,
State Department Issues Final Rules on Intercountry Adoption (Feb. 16, 2006), http://
usinfo.state.gov/xarchives/display.html?p=washªle-english&y=2006&m=February&x=2006
0216142905mvyelwarc0.1766016&t=livefeeds/wf-latest.html [hereinafter Final Rules Press
Release].
191 See Lewin, supra note 6, at 292–307.
192 See id. at 291.
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373
country with his or her adoptive parents.193 A child who is a foreign
national and is adopted in his or her home country by a U.S. citizen
or citizens is not currently automatically entitled to emigrate to the
United States, nor is he or she entitled to naturalization as a U.S. citizen.194 The adoptive parents must petition to have the child designated as an orphan.195 Under U.S. law, the child must be under age
sixteen, with parents who have died, abandoned the child, or are incapable of caring for him or her.196
Though this deªnition of orphanage seems comprehensive and
simple, if the child’s own country of origin deªnes an “adoptable”
child differently, the United States might deny entry or citizenship to
a child who was legally adopted in his foreign home country but does
not meet all the requirements of an “orphan” under U.S. law.197 For
example, some foreign countries permit a sole parent to “release” a
child for adoption, but the United States requires that such release be
irrevocable and speciªcally note that the child is to emigrate to the
United States.198 The United States further requires evidence that a
sole parent is unable to care for the child’s basic needs, measured by
the local standard in the home country.199 Thus, if the child has two
known parents (in a married or familial relationship) who wish to
surrender the child because of inability to provide him or her with
basic care, the United States will not consider that child an orphan
and thus will not permit the child to emigrate to the United States.200
Similarly, the United States will consider a child abandoned if two
parents have unconditionally given him or her up to a state-run orphanage but not if the birth parents have “surrendered” the child to
prospective adoptive parents.201
The IAA speciªcally addresses these complex issues by requiring,
before the adoption takes place, that the Central Authority be responsible for ensuring that a particular child will be able to emigrate legally to the United States.202 The Central Authority, working directly
with its counterpart authority in the child’s country of origin, will be
193 See id. at 292.
194 Id.
195 See id.
196 See Immigration and Nationality Act, 8 U.S.C § 1101(b)(1)(F)(i) (2005).
197 See Lewin, supra note 6, at 300–04.
198 See id. at 301.
199 Id.
200 Id.
201 See id. at 302–03.
202 See 42 U.S.C. § 301.
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able to clarify that country’s laws and rules for qualifying children as
“adoptable,” and thus ensure that each adoption by a child outside of
the United States will comply with U.S. immigration laws.203 Further,
the IAA radically simpliªes the ªnal process by requiring that any
adoption ªnalized in another country—which necessarily must take
place under the Central Authority—will be recognized as a ªnal, valid
adoption for all purposes of federal and state law.204 This eliminates
the unnecessary barrier between an adoption and a child’s ability to
live with his or her legal parents in the United States.205
In sum, the United States, as a result of all its preparation and its
prominent participation in international adoptions, should be able to
implement the Hague Convention with relative ease.206 Existing structures and procedures will be altered to simplify the process and provide
centralized accountability, as the Hague Convention envisioned in its
overall goal of facilitating international adoptions for the best interests
of children.207 The United States has fully embraced the Hague Convention and readied its laws and processes accordingly.208 This is diametrically opposed to Romania’s complete failure to do the same.209
III. Analysis
A. Problems with the Hague Convention, As Seen by the
Situation in Romania
While the Hague Convention represents a signiªcant step towards
ensuring minimum standards in regulation of international adoption,
it does not go far enough.210 Romania quickly signed and ratiªed the
treaty, pledging acceptance of its theory and requirements.211 The Romanian government, however, never made signiªcant steps towards any
sort of implementation.212 More importantly, the government never
seemed to embrace the basic premise of the Hague Convention that
203 See Hague Convention, supra note 23, arts. 17, 18.
204 See 42 U.S.C. § 301(2)(b).
205 See Lewin, supra note 6, at 292–94.
206 See Hubing, supra note 5, at 660; Bureau of Consular Affairs, U.S. Dept. of State,
Preparations for U.S. Implementation of the Hague Convention (2005), http://travel.
state.gov/family/adoption/convention/convention_2332.html [hereinafter Preparations].
207 See Hague Convention, supra note 23, pmbl., art. 1(a); Preparations, supra note 206.
208 See generally 42 U.S.C. § 14901–14954; Preparations, supra note 206.
209 See Bartholet, supra note 5, at 201.
210 See id. at 194–95; Sargent, supra note 37, at 378–80.
211 See Sargent, supra note 37, at 355, 380.
212 See id. at 380.
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international adoptions can serve the best interests of children.213 As a
ratiªer of the Hague Convention, Romania continues to have a legal
obligation to abide by its terms.214
The European Union is in a unique position to ensure that Romania abides by these obligations.215 Since its initial application to
enter the EU, Romania has demonstrated its willingness to follow the
EU’s recommendations and requirements.216 But while nineteen of
the EU’s twenty-ªve member states have signed the Hague Convention,217 the EU’s support of a virtual outright ban on international
adoption in Romania misinterprets the proposition at the heart of the
Hague Convention.218 Although the EU has correctly mandated that
Romania ensure child welfare and rights as a condition of its admission, its focus on the conditions of institutionalized children and a
ban on international adoption means that the EU is effectively only
addressing a fraction of the whole problem.219
Institutionalized children unquestionably need a clean, healthy,
and supportive environment,220 but the EU should recognize that the
goal should be to have as few children in institutions as possible.221
This can be achieved by four means: preventive measures to reduce
the number of abandoned children;222 efforts to reunite children with
their families;223 domestic adoption;224 and international adoption.225
By foreclosing the option of international adoption, Romania, with
the support of the EU, is effectively keeping more children in institutions than need to be.226 By focusing on the threat of child trafªcking,
the EU is seeing only the negative potential of international adoption
and is ignoring its positive potential.227 The EU should exert its con213 See Bartholet, supra note 5, at 201.
214 See Hague Convention, supra note 23, arts. 43–48; Sargent, supra note 37, at 354.
215 See 1998 Regular Report, supra note 139; 1999 Regular Report, supra note 140;
2000 Regular Report, supra note 149; 2001 Regular Report, supra note 150 (showing that
the EU is in a position of authority over Romania because of Romania’s membership bid).
216 See 2001 Regular Report, supra note 150, at 24.
217 See Hague Convention, supra note 23, intro., 32 I.L.M. at 1139.
218 See id. pmbl.; 2001 Regular Report, supra note 150, at 24–25 (showing that the EU
supports a moratorium for the best interests of the children).
219 See 2001 Regular Report, supra note 150, at 24–25.
220 See 1999 Regular Report, supra note 140, at 15.
221 See Bartholet, supra note 5, at 196–97.
222 See Lataianu, supra note 61, at 101, 116.
223 See Sargent, supra note 37, at 368.
224 See id.
225 See Bartholet, supra note 5, at 210.
226 See id. at 201.
227 See id. at 185.
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siderable power over Romania by shifting its position in favor of the
ban on international adoption to a full and comprehensive effort to
put a workable system of international adoption into place.228 Only by
the EU initiating a move in this direction will the children of Romania
be given a full opportunity to “grow up in a family environment, in an
atmosphere of happiness, love and understanding,” as the Hague
Convention implies is their fundamental human right.229
The members of the Hague Conference can help facilitate this
change by publicly supporting the European Union to change its position.230 Because Romania has pledged its allegiance to the Hague Convention and yet has failed to recognize its obligations even minimally,
the Hague Conference members should be obligated to help rectify the
situation.231 A public declaration by the member states would demonstrate solidarity with each other, saying that they are invested in the realization of the Hague Convention, regardless of whatever difªculties a
particular country may encounter in its implementation.232
Additionally, UNICEF, the United Nations Children’s Fund, would
be in a powerful position to advocate for this position.233 UNICEF has
staunchly advocated that children unable to remain in and be raised by
their natural family should be placed in alternative family settings
rather than institutional care.234 It has acknowledged international
adoption as the best alternative in certain situations and has strongly
supported the Hague Convention’s focus on ensuring that such adoptions proceed in the best interests of the child.235 With the support of a
major, internationally recognized children’s advocacy organization, a
potential EU quest to carry out the best interests of Romania’s children
by requiring the country to institute a workable system of international
adoption would have a good chance of success.236
228 See Bartholet, supra note 5, at 210; cf. 2000 Regular Report, supra note 149, at 20;
2001 Regular Report, supra note 150, at 24–25 (demonstrating that the EU wields considerable power over Romania because of the country’s membership bid, and that Romania is thus willing to act on the EU’s suggestions).
229 See Hague Convention, supra note 23, pmbl.
230 See generally Hague Convention, supra note 23.
231 See generally id.
232 Cf. Bartholet, supra note 5, at 194–95 (demonstrating that implementation of the
Hague Convention might be uneven across countries and that many countries may struggle with its mandates).
233 See Rios-Kohn, supra note 43, at 27.
234 See UNICEF, UNICEF’s position on Inter-country adoption, http://www.unicef.org/
media/media _15011.html (last visited Apr. 11, 2006).
235 See id.
236 See Rios-Kohn, supra note 43, at 27.
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377
The Hague Conference should also consider further amending
the Hague Convention to institute implementation assistance.237 By
including non-member states in drafting the Hague Convention, the
Hague Conference recognized the special role that some countries play
in international adoption.238 These countries, like Romania, represent
largely “sending” countries in international adoption proceedings, yet
they also tend to have the most unstable or ill-equipped governments,
making implementation of the Hague Convention exceedingly
difªcult.239 For the Hague Convention goals to be realized, each country must domestically institute its requirements.240 While it is, of course,
a fundamental principle of international sovereignty that each country
determine how to govern and institute international treaties independently, the Hague Convention should be amended to provide for a
committee to develop a plan that would guide and assist these countries in realizing the Hague Convention requirements.241
B. Problems with the Hague Convention as Evidenced by the United States
Clearly, a country like the United States is able to institute the
requirements of the Hague Convention and easily adhere to its broad,
overall goals and procedures.242 Once the United States ofªcially
ratiªes the Convention and brings the IAA into full effect, however, its
international adoption procedures could highlight the Hague Convention’s smaller, more nuanced problems.243
The Hague Convention lacks deªnitions of certain terms that
could result in serious disputes.244 Most signiªcant, and potentially
most disputative, is the Hague Convention provision stating that “[t]he
recognition of an adoption may be refused in a Contracting State only
if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child” (emphasis added).245 Without a
deªnition of what might be “manifestly contrary” to public policy, the
provision allows wide discretion for a country to deªne its own stan-
237 See id. at 26–27.
238 See Hague Convention, supra note 23, intro., 32 I.L.M. at 1139.
239 See Rios-Kohn, supra note 43, at 27.
240 See Bartholet, supra note 5, at 194–95.
241 See Thompson, supra note 117, at 466–67.
242 See id. at 457.
243 See id. at 462–67.
244 See id. at 463–66.
245 See Hague Convention, supra note 23, art. 24.
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dards.246 Yet the inclusion of the qualifying word “manifestly,” rather
than simply “contrary to public policy,” seems to set up a heightened
standard.247 Additionally, the phrase “taking into account the best interests of the child” adds to this sense that the Hague Convention is
restricting a country’s total discretion to deªne its own terms.248 The
Hague Convention, however, includes no review or appeals process for
adoption cases rejected by one country on public policy grounds.249
Thus, the addition of the qualifying and seemingly restrictive phrases
may have no force whatsoever; if a country decides to reject an adoption on the grounds that it is contrary to public policy, the prospective
adoptive parents and the other contracting country have no means of
redress.250 Questions also remain about what adoptions may be considered contrary to public policy. Presumably, the categories could include
inter-racial adoption,251 inter-religious adoption,252 inter-ethnic adoption,253 as well as adoption by single people,254 same-sex couples,255 or
people over or under a certain age.256
In the U.S. courts, a long standing principle of international law
is that a foreign country’s law that merely differs from that of the
United States does not make it automatically contrary to public policy.257 Presumably, this applies to international adoption as well—
mere incompatibility of laws does not translate into a situation “manifestly contrary to public policy.”258 Instead, “[t]here must be something which offends by shocking moral standards, or is injurious or
pernicious to the public welfare.”259 In the United States, courts rarely
ªnd foreign adoptions “repugnant,” but when they do, it is usually
246 See Thompson, supra note 117, at 463–64.
247 See Hague Convention, supra note 23, art. 24.
248 But see Thompson, supra note 117, at 464–65.
249 See id. at 466–67.
250 See id.
251 See Bergquist, supra note 31, at 348; Ruth-Arlene W. Howe, Adoption Laws and Practices in 2000: Serving Whose Interests?, 33 Fam. L.Q. 677, 685. (1999).
252 See Cheryl Wetzstein, Adoption Not an Option, Wash. Times, Feb. 2, 2005, at A2,
available at 2005 WLNR 1447447.
253 See Bartholet, supra note 5, at 204–05.
254 See Hubing, supra note 5, at 667–68.
255 See id. at 668–70.
256 See Lewin, supra note 6, at 297; Maine Adoption Placement Service, China Adoption
Program, http://www.mapsadopt.org/china.html (last visited Apr. 11, 2006).
257 See Malinda L. Seymore, International Adoption & International Comity: When Is Adoption “Repugnant”?, 10 Tex. Wesleyan L. Rev. 381, 392–93 (2004).
258 See Hague Convention, supra note 23, art. 24; Seymore, supra note 257, at 393.
259 See Seymore, supra note 257, at 393 (quoting In re Schultz Estate, 348 P.2d 22, 28
(Or. 1959)).
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those that fail to mimic U.S. notions of the nuclear family, thus primarily impacting single parents and same-sex couples.260 Currently,
Florida is the only state that speciªcally bans same-sex couples from
adopting children.261 Other states, such as Nebraska and Ohio, effectively ban same sex couples from adopting by prohibiting “second
parent” adoptions by gay individuals in same-sex relationships.262
Thus, same-sex couples who jointly parent adopted children must
choose only one of them to become the legal adoptive parent.263 The
child has no legal rights to government beneªts if the non-adoptive
parent dies or is disabled, and that parent has no legal right to parent
the child if the adoptive parent is incapacitated or dies.264
Some countries, such as China, speciªcally prohibit same-sex couples from becoming adoptive parents.265 China classiªes homosexuality
as a psychiatric disease, and the country’s laws only recognize families
as those with married parents of the opposite sex.266 The Hague Convention would presumably allow China to classify an intercountry adoption by same-sex couples as “manifestly contrary to public policy.”267
The United States position would not be as clear, however.268 The Central Authority might grant same-sex couples status (or deny such status)
as qualiªed parents based on the laws of their home state.269 It would
have to determine if legally married same-sex couples from Massachusetts should be granted special consideration,270 or whether they
should be treated exactly like a same-sex Florida couple that is expressly
260 See id. at 394.
261 See Kimberly Miller, Proposal Would Loosen Gay Adoption Ban, Palm Beach Post, Mar.
1, 2006, at 1B, available at 2006 WLNR 3583366; Lynn Waddell, Gays in Florida Seek Adoption
Alternatives, N.Y. Times, Jan. 21, 2005, at A20, available at 2005 WLNR 845256.
262 See Joan Biskupic, Same-sex Couples Redeªning Family Law in USA, USA Today, Feb. 17,
2003, available at http://www.usatoday.com/news/nation/2003–02–17-cover-samesex_x.htm.
Additionally, there was a bill to ban gay adoption introduced into the Ohio legislature in
February 2006. Dyana Bagby, Only One State Facing Gay Adoption Ban, S. Voice, (Ga.), Feb. 24,
2006, available at http://www.southernvoice.com/2006/2-24/news/national/nat1.cfm.
263 See Biskupic, supra note 262.
264 See id.
265 See Children’s Bridge–Programs–China, http://www.childrensbridge.com/pages/
china.html (last visited Apr. 11, 2006).
266 See CCAA Regulations effective Aug. 1, 2001 (2001), http://www.fwcc.org/ccaa8_
01.htm.
267 See Hague Convention, supra note 23, art. 24.
268 See Hubing, supra note 5, at 668–71.
269 See id. at 689–90.
270 See Yvonne Abraham & Rick Klein, Free to Marry: Historic Date Arrives for Same-Sex
Couples in Massachusetts, Boston Globe, May 17, 2004, at A1, available at 2004 WLNR
3622855.
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prohibited from adopting by state law.271 To resolve these conºicting
issues, the Central Authority might look to the federal Defense of Marriage Act, which could arguably show that families with same-sex parents are contrary to U.S. public policy.272 Because adoption law is so
deeply and traditionally entrenched within individual state law, the
Central Authority would probably have to make its determinations of
parental acceptability based on such state laws.273 The United States is
implementing a single Central Authority within the federal government, even though the Hague Convention would have allowed for Central Authorities in each individual state in the country.274 This choice
establishing uniformity, however, is contravened if the same people,
going through the same evaluation and application process, can be
granted acceptable parental status by residing in Massachusetts but denied such status when residing in Florida.275 Initially, the Central Authority should adhere to home-state laws for these determinations.276
These issues, however, are sure to arise almost immediately after the
Central Authority is instituted under the State Department, perhaps
forcing the federal government to more closely examine the issue of
same-sex parenting.277
Another issue that the Central Authority in the United States will
face is how to interpret the Hague Convention requirement that no
one may “derive improper ªnancial or other gain” from intercountry
adoptions.278 That Article goes on to state that “[o]nly costs and expenses, including reasonable professional fees of persons involved in
the adoption, may be charged or paid,” but this qualiªcation does little
to deªne what “improper ªnancial or other gain” and “reasonable professional fees” mean exactly.279 Presumably, the provisions are vague so
as to allow the country and its Central Authority ºexibility to determine
deªnitions on their own, but costs in intercountry adoptions can vary
by tens of thousands of dollars.280 In some countries, bribes thinly
271 See Miller, supra note 261.
272 See Defense of Marriage Act, 28 U.S.C. § 1738C (1996).
273 See Lewin, supra note 6, at 292.
274 See Hague Convention, supra note 23, art. 6.
275 See id.; see also Waddell, supra note 261; Abraham & Klein, supra note 270.
276 See Lewin, supra note 6, at 292.
277 See Katie Thomas, Proud of Their Family, Newsday, Jan. 17, 2005, at A7, available at
2005 WLNR 638732.
278 See Hague Convention, supra note 23, art. 32(1).
279 See id. art. 32(2).
280 See Bartholet, supra note 5, at 190.
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veiled as “gifts” are commonplace.281 A serious issue could arise over
whether these gifts remain acceptable under the Hague Convention if
they are not so large as to constitute “improper” gain, or if the fact that
they are unofªcial, yet tacitly required, payments make them forbidden
given the overall Hague Convention goal of putting international adoption under regulated oversight.282
The U.S. Central Authority should mandate a clear policy that no
payments outside of professional fees should be involved in international adoptions in any way.283 Because all international adoptions must
go through the Central Authority, it has the power to accredit those
outside adoption agencies that deal with the day-to-day processes of
each individual adoption.284 The Central Authority thus has the power
to monitor the exact rates that each agency charges over the course of
the adoption.285 The Central Authority also has power to institute an
adverse action against an accredited agency and remove its accreditation, which could presumably be based upon excessive fees.286
The Central Authority should make a clear policy available to all
prospective adoptive parents that any fees above and beyond those
charged by the monitored agency are completely unacceptable.287
The Central Authority should ensure that prospective parents have an
open avenue of communication with their home Central Authority—
particularly when they are actually in the process of adopting in a foreign country—for reporting any suspected illegal demands or expec281 See Elizabeth Bartholet, Family Bonds: Adoption and the Politics of Parenting 126 (1993).
282 Id. Harvard Law School professor Elizabeth Bartholet, writing about her personal
experience as a parent trying to adopt a child in Peru, says of her apprehension about a
particular social worker’s reputation for harshness towards foreign adoptive parents:
No one knows for sure why [she has removed several children from the adoptive parents], but some suspect that it was because she felt she had not been
appropriately treated. Does this mean they failed to provide a “gift” that she
felt entitled to? It is illegal to bribe public ofªcials in Peru . . . so it seems
genuinely dangerous to think of offering anything to a social worker. But the
bureaucratic and judicial systems traditionally operate on the premise that
gifts will be given to smooth the way; a refusal to proffer the expected gift can
be seen as niggardly or hostile, and it poses a very real risk that whatever it is
you want will simply not happen.
Id.
283 See Hague Convention, supra note 23, art. 32(2).
284 See id. arts. 10–13; 42 U.S.C. §§ 201–204; Final Rules Press Release, supra note 190.
285 See Hague Convention, supra note 23, arts. 10–13; 42 U.S.C. §§ 201–204.
286 See 42 U.S.C. § 204.
287 See Hague Convention, supra note 23, art. 32(2).
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tations of payment.288 Because the U.S. Central Authority will have
worked closely with the Central Authority of the child’s home country
in instituting the adoption in the ªrst place, the U.S. Central Authority should address each speciªc reported abuse immediately with the
other country’s Central Authority.289 Only this sort of swift, ªrm
communication between Central Authorities will ensure that prospective parents are not taken advantage of and that no individual or
agency receives any sort of undue ªnancial gain from the adoption.290
These two major issues concerning public policy and ªnancial
matters highlight the need for the Hague Convention to further
deªne the vague terms within its provisions, as well as provide some
appeals or enforcement procedures.291 Additionally, the Hague Convention should be amended to include some sort of implementation
assistance to aid “sending” countries like Romania in setting up a
Central Authority to enable them to fully participate in monitored
international adoption procedures.292
Conclusion
While the Hague Convention represents a signiªcant step towards
ensuring that all international adoptions are governed by certain
minimum standards, keeping the best interests of the child paramount,
the Hague Convention falls short in two signiªcant respects. First, the
Hague Convention’s regulations are most needed in countries like
Romania, where large numbers of institutionalized children are in dire
need of stable families and thus could beneªt greatly from a regulated
system of international adoption. The Hague Convention, however, is
least likely to be effectively instituted in such countries because the
same political and economic strife that results in large numbers of children in need also inhibits the government’s ability to undertake such
extensive structural changes. Thus, the Hague Conference member
states need to either establish committees focused on helping countries
actually implement the Hague Convention’s mandates, or they need to
work closely with the EU and other strong political forces to institute a
realistic implementation. Second, for countries like the United States
that are fully capable of realizing the broad Hague Convention goals,
288 See id. art. 33.
289 See id. art. 7.
290 See id. art. 32(2).
291 See Thompson, supra note 117, at 465–67.
292 See Sargent, supra note 37, at 380.
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The Hague Convention on Intercountry Adoption
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the Hague Conference members need to amend the Hague Convention to clarify certain language provisions. Most notably, the members
need to clear up exactly what countries may classify as contrary to their
public policy, and—more importantly—they need to allow for some
sort of appeals or review process when one country blocks an adoption
on this basis that is otherwise in the child’s best interests. Additionally,
the states need to issue clear guidelines about what constitutes prohibited ªnancial gain in the context of adoptions. If the Hague Convention develops on both these wide-reaching and smaller-scale levels, it
truly will be a document that fosters the best interests of the children by
facilitating international adoption.