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GLOBALIZATION AND THE LAW 2003 SUMMARY
Requirements:
• Part 1 (40%) Essay drawing together whole course. Grapple with a major question
on the relationship between “law” and “globalization”, both elaborating and
illustrating the thesis/theses across a range of issue areas addressed in the course.**
readings for all 10 modules; however, first five are most important. (1 of 3 questions)
• Part 2 (40%) Essay linking “speciality” concrete module with one of the three
framework modules for which the student chose to read single-asterisked (*)
readings. Explore in depth questions of policy, principle and/or power flowing
from the framework module as they relate to the specialty topic. * asterisk readings
for 3/5 framework modules + all readings for one of concrete modules. (1/5
questions)
• Part 3 (20%) Short answer on a concrete module other than specialty module.
Question asked for each concrete module will relate to one of the * or ** readings for
that module. Will require a fairly specific, and correspondingly brief answer.
Definitions
• Normative: of, relating or conforming to, or prescribing norms
• Norm: 1, an authoritative standard : MODEL 2: a principle of right action binding
upon the members of a group and serving to guide, control or regulate proper and
acceptable behaviour.
I.
Framework 1: Globalization(s) in Context I: Perspectives from History
and Economics
General
A.
Held et. al. “The Globalization Debate,” pp 1-9 (9)
Globalization as the widening, deepening and speeding up of worldwide
interconnectedness in all aspects of contemporary social life…
• Hyperglobalizers- new era where people are increasingly subject to the disciplines of
the global marketplace.
• Sceptics: globalization as myth conceals international economy segmented into
regional blocks in which national governments remain very powerful.
• Transformationalists- contemporary patterns of globalization conceived as
historically unprecedented such that states and societies experiencing a process of
profound change as try to adapt to more interconnected but uncertain world.
Each perspective reflects general set of arguments/conclusions about: conceptualization,
causal dynamics, socio-economic consequences, implications for state power and
governance, and historical trajectory.
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Hyperglobalizers: share a conviction that economic globalization is constructing new
forms of social organization that are supplanting, or that will eventually supplant,
traditional nation-states as the primary economic and political units of world society.
• Politics from ‘art of possible’ to ‘sound economic management’. Globalization as
economic phenomenon. Traditional social democratic welfare state less tenableevery country has a comparative advantage.
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Class allegiance cemented by neoliberal economic orthodoxy- global spread of liberal
democracy- harbinger of the first truly global civilization; for radicals, ‘market
civilization.’
Relevance of state eroding in transnational economy; increasing links among people
in global civil society.
Economic and political power are becoming denationalized and diffused such
that nation-states are increasingly becoming ‘a transitional mode of organization
for managing economic affairs’.
Sceptical Thesis
Equate globalization with perfectly integrated global market; since this is incomplete,
globalization a myth. In fact, national governments are required to regulate international
economy and economic liberalization.
• Regionalization into trading blocks
• Governments not passive victims of internationalization but its architects
• Growing marginalization of 3rd world as trade and investment between North
intensifies
• Most foreign investment flows among North- TNC’s remain focused in home country
• Deeply rooted paterns of inequality and hierarchy- in structural terms changed little
• Inequality leads to fundamentalism, aggressive nationalism- global governance and
economic internationalization are Western projects.
Transformationalist
Globalization central driving force behind the rapid social, political and economic
changes that are reshaping modern societies and world order. Contemporary processes of
globalization unprecedented such that governments and societies must adjust to world
where there is no longer a clear distinction between interational and domestic, external
and internal affairs.
Emphasis globalization as a long-term historical process which is inscribed with
contradictions and which is significantly shaped by conjuntural factors.
• Unprecedented economic, military, technological, ecological, migratory, political and
cultural flows. Single system includes some societies but marginalizes others.
• Traditional pyramid structure replaced by three-tier arrangement of concentric circles,
each cutting across national boundaries, representing respectively, the elites, the
contended and the marginalized.
• State sovereign over territory, but expanding jurisdiction of institutions of
international governance- and constraints and obligations of international law. E.g.,
EU, where sovereign power divided between international, national and local
authorities.
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Separate of sites and subjects of power- in these circumstances the notion of the
nation-state as a self-governing, autonomous unit appears to be more of
normative claim than a descriptive statement.
New ‘sovereignty regime’ is displacing traditional conceptions of statehood as an
absolute, indivisible, territorially exclusive and zero-sum form of public power. Also
tied in with emergence on non-territorial forms of economic and political
organization such as MNC’s, transnational social movements, international regulatory
agencies, etc.
Rather than bringing about the end of the state- encouraging spectrum of adjustment
strategies.
B.
Held et. al, “Historical Forms of Globalization: What is New?”
Early Modern Globalization, circa 1500-1850
Expansion of Western empires: Americas in the 16th century; Oceania in the 18th and 19th
centuries. Economic globalization through great trading companies. Dutch and English
East India companies regularize interactions prior to colonial government. Slave trade.
Increasing trade in raw materials.
Institutionalization and regularization of military and political power across contients
difficult- only sustainable on a regional basis. Freedom of colonies, but increased
economic interaction.
Railways, printing press, mechanized iron ships- still velocity of flows limited. Within
Europe- ‘Concert of Europe.’
Sovereign territorial states begin to develop in this period.
Modern Globalization, circa 1850- 1945
European societies began to acquire industrialized capitalist economies, enormously
advanced weaponry and naval technologies, increasingly powerful state institutions.
Western influence expands. Increased economic globalization- demographic shifts.
Trade between centres and periphery.
• This period say the circulation, diffusion and imposition of secular Western
ideologies and discourses: impacts of Marxism, liberalism, nationalism and science,
although fragmentary at first and concentrated exclusively on elite groups, would
eventually significantly transform (although by no means extinguish) the cultures,
identities and social practices of peoples all over the world.
• Advent of mass literacy- telegraph- widespread railroads
• WWI destroyed this system- Gold standard system and patterns of free trade
disappeared to be replaced by imperial preference. League of Nations undermined by
nationalism.
• WWII weakens Japan and European empires.
• In their place rose a hegemonic USA which would establish the formal and informal
structures of global governance alongside which a renewed wave of globalization,
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supported by new technologies and intrastructures of interaction, would cross a world
dominated not by amorphous empires, but by territorially demarcated nation-states.
Historical Structures and Echoes
Okafor, “On the Ontology of the Crisis of Legitimate Statehood in
Africa”
Problems of Africa are structural and in frequent attempts by states to amalgamate
coercively Africa’s multitude of pre-existing political formations.
Today’s struggles take place within normative and factual borders determined in part
by pre-colonial and colonial political/military struggles over state and sub-state
identity. There is thus an identifiable continuum in the crisis of structural legitimacy
currently afflicting the post-colonial African state.
History of centralised states in Africa
Colonial resistance and domination
Late 19th century crisis constituted by internal and external challenges to the
continued survival and integrity of existing African states.
By destroying pre-existing political entities and states, and forcibly
amalgamating or disaggregating these entities into entirely new ones, colonial
statecraft permanently reversed centuries of organic potlical development and
forced African peoples to begin almost entirely afresh to build organic and
legitimate states.
No attention paid to pre-colonial inter-state/community relations in creation of new
states.
Colonial African state not sovereign because province of European metropolis; not a
nation because just forcibly assembled number of nations; not international because
external relations conducted by colonial power. Held together by force, divide and
rule.
Militaristic, authoritarian, over-centralised, alienating- viewed as illegitimate by
population.
Colonialism left administrative borders which formed new states.
Post-colonial state: failure of post-colonial state linked to its inability to shed its
colonial past, re-configure itself, and attract the primary allegiance of its constituent
socio-cultural groups.
Arbitrary borders- but post-colonial leaders content with status quo b/c just won
independence. Pragmatic reason is fear of the conflict potential of a wholesale redrawing of the borders; the ideological reason was the desire of relatively weak
new leaders to protect their territorial domains from constant threat of the many
centrifugal forces of deeply divided new states.
Nation building of elites preoccupied with homoginization of intra-state, mostly
socio-cultural differences.
And even though all states and borders are a product of conflict, consensus, and
contrivance, it must be remembered that the states of Africa are by far the most
contrived of all.
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Concept of history echoing the present
Contrast with European nationalism that was carved out over time, African
states segmented- development in concentric circles where inner core is
dominant group.
1 interstate war in Africa since 1960- over 49 internal conflicts in the same
period.
Structural crisis of legitimacy- elites devote time to capture power- little energy
expended on governance.
Economic Liberty and Human Freedom
Miclethwait and Woolridge, “the Hidden Promise: Liberty
Renewed”
Globalization increases efficiency and thereby prosperity. Also view as an extension
of the idea of liberty and as a chance to renew the fundamental rights of the
individual.
Two principles, one prejudice. First principle is that right belong to individuals rather
than to governments or social groups; second is the essence of freedom lies in
individual choice. Prejudice is scepticism and abhorrence of certainty.
Regardless, by the end of the century, the state vastly more powerful than at the
beginning.
Open society: globalization redresses the balance because puts limits on power of
government. E.g., in commerce, free trade. World a lot freer today than even a few
decades ago. Collapse of communism.
Concern about MNC’s- say this is misplaced- “of course businesses will try to control
markets, but that does not mean that they will be able to.”
339- when society is defined by a fairly compact national economy, an elite has a
chance of co-opting it. But when society is an open-ended international system, it
becomes increasingly difficult for any elite to identify their values with the
common good.
Tyranny of place limited by communications revolution (339) Allows people to
fashion own identities. The smaller the world becomes, the more communities are
defined by common interests and outlooks rather than by the mere accident of
physical proximity.
Our argument is that globalization is delivering enough of that dream to make it
worth pressing forward and to make it worth defending on more than just narrow
economic grounds.
Globlalization is helping give birth to an economy that is closer to the classic
theoretical model of capitalism, under which rational individuals pursue their
interests in the light of perfect information, relatively free from government and
geographical obstacles. It is also helping to create a society that is closer to the
model that liberal political theorists once imagined, in which power lies
increasingly in the hands of individuals rather than governments, and in which
people are free, within reasonable bounds, to pursue the good life wherever they
find it.
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Paradox- the more successful globalization becomes, the more it seems to promote
backlash.
E.
Sen, Intro paragraph to Ch 2, “Constitutitive and Instrumental
Roles of Freedom”, “Instrumental Freedoms”, and
“Interconnections and Complementarity”.
Contrasting views of development: one view as a “fierce” process that demands
calculated neglect of “soft-headed” concerns. Resist social safety nets to protect the very
poor, social services, and favouring “much too early’ political and civil rights and the
‘luxury’ of democracy. Contrast with the friendly process- social safety nets, political
liberties, social development.
• Constitutive and Instrumental Roles of Freedom: Sen’s view of development as a
process of expanding the real freedoms that people enjoy. Expansion of freedom
viewed as (1) the primary end and (2) the principal means of development.
• Constitutive role of freedom relates to importance of substantive freedoms: avoid
starvation, premature mortality, freedoms with being literate and numerate, political
participation. Development as expanding human freedoms.
• Narrow view- growth of GNP- considers whether freedom is “conducive to
development.” Sen says that political participation is constitutive of development
itself.
• Instrumentalist view: these freedoms may also be effective to contributing to
economic progress. Significant of political freedom as a means of development does
not in any way reduce importance of freedom as an end of development.
• Instrumentalist role of freedom concerns way different kinds of rights, opportunities
and entitlements contribute to the expansion of human freedom in general, and thus to
promoting development. Different freedoms interrelate with one anotherdevelopment of one type of freedom can promote the development of another kind.
• Types of instrumental freedoms: (1) political freedoms, (2) economic facilities, (3)
social opportunities, (4) transparency guarantees and (5) protective security.
(freedom as object and also principal means of development).
• Political freedoms: civil rights- determine who should govern, free speech etc.
• Economic facilities: insofar as economic development increases wealth reflected in
corresponding enhancement of economic entitlement.
• Social opportunities: refer to arrangements that society makes for education, health
care, and so on, which influence an individuals substantive freedom to live better.
Importance in private life but also to participate in economic and political activities,
e.g., illiteracy can be a barrier.
• Transparency: freedom to deal with one another without corruption, financial
irresponsibility, etc.
• Protective security: protect those at the bottom of society.
• Human resource development, education in particular, is the main reason behind socalled East Asian miracle.
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II.
Framework 2: Globalization(s) in Context II: Capital, Power, and Civil
Society
Hegemony and Resistance
A.
Cox, “Production, Power, and World Order”
Qualitative differences between world orders touch on the nature and incidence of wars,
manner of resolving disputes, creation and distribution of wealth and poverty.
Differences of structures of world order are shaped by forms of state and of production,
and stabilized structures of world order in turn provide a framework conducive to certain
forms of state and production.
• Principal distinction in whether or not the order is hegemonic, e.g., Pax Britannica
and Pax Americana.
• Hegemony means dominance of a particular kind where the dominant state creates an
order based ideologically on a broad measure of consent, functioning according to
general principles that in fact ensure the continuing supremacy of the leading state or
states and leading social classes but at the same time offer some measure or prospect
of satisfaction to the less powerful.
• Convergence of interests between social classes because of mutual interests and
ideological perspectives.
• In non-hegemonic order- states advance and protect the interests of particular
national social classes and production organizations using political, economic and
military means.
• Open system- change can happen in production relations, class relations, emergence
of new blocs or forms of state.
The Internationalizing of the State
• The internationalizing of the state is the global process whereby national policies and
practices have been adjusted to the exigencies of the world economy of international
production. State part of larger and more complex structure.
o The reshaping of specific state structures in accordance with overall
international political structure is brought about by a combination of
external pressures and realignments of internal power among domestic
social groups.
o Resistance from groups left out.
1) First, there is a process of interstate consensus formation regarding the requirement of
the world economy that takes place within a common ideological framework.
2) Second, participation in this consensus is hierarchically structured.
3)Internal structures of states are adjusted so that each can best transform the global
consensus into national policy and practice, taking into account obstacles likely to arise in
countries in different positions.
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International economy model- the state acts as a buffer between the external
economic environment and the domestic economy. Principal task to defend interests
of domestic economy. (Economic nationalism of Depression years).
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Bretton Woods put state at half-way between international economy and the world
economy- compromise between accountability of governments (especially debtor
countries) to institutions of world economy and accountability of governments to
domestic opinion on economic performace.
 In order to borrow have to satisfy conditions of international institutionsneed to borrow to soften impact of external developments, e.g., rise of
rivals with competitive advantage- give chance to adapt and maintain
welfare.
 Center of gravity shifts to world economy with states recognized as having
obligations to both
 Compromise works as long as economic expansion (255). Diminish open
contradiction between two economies.
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IMF set up to provide time and money to countries with balance of payments deficits
World Bank- longer term financial assistance
Institutions of world economy incorporated mechanisms to supervise the
application of the system’s norms and to make financial assistance and other
benefits of the system conditional upon reasonable evidence of intent to live up to
the norms.
View that national economic policy should be viewed in light of consequences to
other nations- adjustments seen to be responding to system as a whole and not just to
dominant countries.
Power structure in which components sought to reach consensus in bargainingbureaucratic fragments of states. Power behind negotiators tacitly taken into account.
Debtor country caught between need to maintain sovereignty and satisfy creditors of
‘correct economic behaviour.’ Find a middle ground. ‘international freemasonry’
belief propagated that there’s no other option.
EMS- political economic stability- hard policy (authoritative central decision-making)
for trade policy, agriculture, regional assistance; softer in respect of money supplies
and credit regulation, industrial, income policies. Monthly meetings of finance
ministers.
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Levels of internationalizing state structure
Top Level- major AIC’s- US dominant but not determining- 259- ideological basis of
consensus. 1970s fixed exchange rates and MFN treatment exchanged for policy
harmonization.
Second Level- links between redistributive systems of socialist countries and the
world economy. 60s and 70s, exchange of socialist production for Western
technologies.
Third Level: Stricter regime enforced on 3rd world. Conditions for financing 3rd
world debt- top countries set the parameters of development options. Networks that
finance flows are staffed by people who have been conditioned in norms of AIC
consensus.
Allende’s Chile- recalcitrant 3rd world governments ultimately removed by violence if
do not conform to minimum standards of correct behaviour. More frequently, policy
changes through government shifts. The internationalization of the 3rd world state
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is externally determined and imposed, but it attracts internal allies and
collaborators.
70’s 3rd world indebtedness threatens stability of international financial system.
New axis of influence links international policy networks with the key central
agencies of government and with big business. New informal corporative structure- a
corporatism with international tendencies- overshadowed the older more formalized
national corporatism.
 Realignment of social forces- unions, industries that faced competition, e.g.,
shipbuilding, textiles, steel, naturally protectionist and pushed into opposition of
dominant consensus.
Third World subject to conditions that determined the path of development- must be
conducive to accumulation on the world scale and complementary to the
internationalizing of production. Also determined internal political structures because
could be met only be regimes willing and able to use force to carry through
unpopular economic policies.
Peru- nationalization policy- foreign exchange crisis- was not able to get loan until
made major changes favourable to international economy (265).
De Sousa Santos “Globalization, Nation-States, and the Legal
Field”
Globalization Process
• Globalization instead of fitting into pattern of homogenization or uniformization
“seems to combine worldwide sourcing and boundlessness with local diversity,
national and ethnic identity, popular embedededness and community grounding.
• Connecting with other transformations which are nonetheless irreducible to it such as
growing world level inequality, population explosion, environmental catastrophe,
weapons proliferation, formal democracy as condition for assistance, etc.
• New international division of labour based on globalization of production of TNCskey agents of new world economy characterized by: worldwide sourcing; flexible
systems of production and low transportation costs allowing for the production of
industrial components in periphery and export to core; emergence of three great
trading blocks.
• “market-oriented development model” national economies open to trade, domestic
prices conform to international prices; fiscal and monetary policy directed to the
maintenance of price and balance of payments stability; private property rights clear
and inviolable; state-owned productive enterprises should be privatized; minimal
government regulation; residual government budget for education, social policy.
• Hegemonic states influence on peripheral states; sovereignty pooling as in case of
EC; nation state appears to have lost centrality as privileged economic, social and
political unit. State less able to control flows of people, goods, capital- emergence of
transnational capitalist class.
• Impact of TNC’s debated: dependency theory- “triple alliance” of TNCs, elite, local
capital, state bourgeouisie. Redistribution inequitable.
• Economic stagnation in many LDC’s- 1 billion people live on less than one dollar a
day.
B.
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The Nature of Globalization
• Process of globalization takes place in an apparently dialectical process, whereby new
forms of globalization occur together with new or renewed forms of localization.
• While increased interdependence, finding, in apparent contradiction to this trend, new
regional, national and local identities that are built around a new prominence of rights
to roots. E.g., Islamic groups in Paris, Turkish migrant workers- grounded on the idea
of territory, “be it imagined or symbolic, real or hyperreal territory.”
• Process reproduces the hierarchy of the world system and the asymmetries among
core, peripheral and semiperipheral societies. No genuine globalism- globalization is
the successful globalization of a given localism.
• E.g., English as lingua franca.
• One of the transformations associated with globalization is the time-space
compression, i.e., phenomena speed up and spread out across the globe. Transnational
capitalist class in charge of time-space compression.
• To account for asymmetries:
Globalized localism: consists of the process by which a given local phenomenon is
successfully globalized, be it the worldwide operation of TNCs, the transformation of
English language into lingua franca, globalization of US fast food, pop music.
Localized globalism. Impact of transnational practices on local conditions which are
restructured to respond to transnational imperatives: free trade enclaves, deforestation
and depletion of natural resources to pay foreign debt; touristic use of historical
treasures, religious sites, ecological dumping, conversion of sustainability-oriented
agriculture into export-oriented agriculture as part of the “structural adjustment”.
• In this context, the international division of globalism assumes the following
pattern: the core countries specialize in globalized localisms, while upon the
peripheral countries is imposed the choice of localized globalisms.
• Cosmopolitanism: prevalent forms of domination do not exclude the opportunity for
subordinate nation-states, regions, classes, or social groups and their allies to organize
transnationally in defense of perceived common interests- intended to counteract
detrimental effects of hegemonic globalization. Includes- South-South dialogues,
worldwide labour organizations; North-South transnational philanthropy, human
rights organizations.
• Cosmopolitanism is only possible interstially, at the margins of the capitalist world
system as counterhegemonic practice and discourse. Second, cosmopolitanism is
achieved by progressive coalitions of oppressed classes or groups and other classes or
groups coalescing with them or acting in their name and/or interest.
• Diverse class composition- not unified as per Marx (155)- networking of local groups
to maximize potenial.
• Common Heritage of Humankind- global in entirety- ozone depletion- rain forestsproliferation of nuclear weapons. Under attack by hegemonic countries, e.g., U.S.
• Cosmopolitanism and Common heritage- create the space for social practices that
transcend the hierarchies established by asymmetric globalisms, and for credible
emancipatory discourses beyond the confines of capitalist reasoning and
reasonableness.
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Case Study
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Clapp The Transfer of Wastes from Rich to Poor Countries.
Transfer of hazardous waste from AICs to LDCs; toxic wastes for recycling
operations in 3rd world; FD investment in hazardous manufacturing facilities, using
outdated equipment and techniques. Poorer countries less able to manage hazards in
way that protects human health; also, delaying the adoption of production in both rich
and poor countries.
Economic globalization is related to the transfer of hazards b/c global networks of
trade and investment favour the relocation of hazards. Countertrend include the Basel
Convention and actions of NGOs.
Problem is dynamic- e.g., pluggin one hole, tends to open up a new one somewhere
else.
1989, in response to dumping, states began to sign the Basel Convention on the
Transboundary Movement of Hazardous Wastes and their disposal. Seeks to control
rather than ban transfer of wastes.
Problem evolves in 1990s- instead of dumping becomes recycling (also with harmful
environmental consequences). 1995 amendment to Basel includes recycling.
Global recycling industry began to try to weaken the ban- they tried to redefine
hazardous waste in context to elude the ban. Try to reverse the ban in an attempt to
pave a legal channel for the transfer of waste.
Evidence that most hazardous activities of multinational firms have already relocated
to developing countries.
Transfer of clean production technologies from richer to poorer countries is
widely perceived to be the most promising solution to both problems of
hazardous waste disposal and migration of hazardous industry.
Argument that more efficient to transfer clean production processes to South than to
continue with dirty practices. Transfer of clean up technologies, but not always
cleaner production technologies.
Efforts made to address through voluntary industry standards for environmental
management, e.g. ISO 14000. Argument that in emphasizing industry standards,
players are able to avoid more stringent regulation of technology through legally
binding instruments.
Linkage between trade, environment and nonstate actors.
Global Economy and Hazard Transfer
• Liberal economists argue that the liberalization of trade, investment, and financial
rules is beneficial to the natural environment because it encourages economic growth.
Higher incomes associated with a higher demand for a cleaner environment. More
economic resources can be spent on protection. Before this stage reached- pollution
absorption part of South’s comparative advantage. TNC’s tend to be more
environmentally sound than local counterparts- encourages upward movement of
environmental regulations. Trade agreements over environmental agreements- trade
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barriers will have negative implication for both economic growth and the
environment.
Environmentalists say free trade puts increased stress on the economy. TNC’s ‘race
to the bottom’ can threaten to leave jurisdictions for more lax standards. Industry
flight and pollution havens are real threats. Need strong global level regulatory
measures. New human ethic based on community development at the local level.
Three strands of inquiry: 1) impact of environmental regulations on trade
competitiveness; 2) role regulations play in industrial location; 3) compatibility of
trade rules with measures in MEA’s (188).
Trade competitiveness: countries might relax regulation to earn foreign exchange,
increase compentitiveness.
Location: general trend that ‘polluting industries’ generally do not relocate for
environmental reasons. Most hazardous industries have already relocated.
Trade rules and MEAs: debate whether trade restrictions incorporated into Basel
contravene global trade rules as set out in WTO. Legal aspects of attempting to
regulate global transfers of hazards.
None of the debates fully captures the importance of the increasingly global nature of
world economy as a key factor in hazard transfer. AIC’s rising cost to dispose at
home b/c of environmental concerns- incentive to transfer to countries with lower
costs. Hazard could not easily happen were it not for globalization of world economy.
Economic globalization has created a setting in which hazards escape regulations
on a global scale and their transfer takes advantage of economic inequalities
between countries. It is not a case of a race to the top or to the bottom but
rather, a problem of entrenched regulatory differences and their exploitation
through global economic channels.
Dynamic response of hazards to new regulations on a global scale.
Strutural adjustment b/c of debt leads AICs to liberalize trade- waste comes with
promise of much needed foreign exchange.
Lower transportation costs, difficulty in checking every container facilitates the
transfer(189).
Movement of pollution intensive industries as regulations become more strict in
developed world; FDI in AIC’s b/c have weaker environmental regulations and/or
lack enforcement of regulations.
The liberalization of investment regulations in countries pursuing structural
adjustment policies has played a role in opening up these countries to new
investment of this sort.
Nonstate Actors and the Political Response to Hazard Transfer
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NGO influence on policy making and raising public consciousness
“global civil society” of interconnected and like-minded NGOs working on various
issue areas has emerged as a reaction to economic globalization. Dynamic
relationship between economic globalization and global civil society.
Key players in international environmental treaty process: identifying issues that
require action, negotiation, monitoring, and enforcing treaties.
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Strong influence in terms of debates and drafting of international treaties on the
waste trade.
Influence of TNC’s on global political economy. Production by these global firms
is now worth more than global trade, while foreign direct investment stock in the
early 1990s grew at twice the pace of trade.
Industry lobby groups at negotiations re waste trade, climate change, ozone depletion,
deforestation, etc. Tend to lobby national governments.
TNCs exporting toxic waste, making shift of exports to recycling, transferring
hazardous production processes and outmoded equipment. Yet they have been able
to use the global economy to evade regulations by finding alternative channels
for hazard transfer in the face of more stringent regulations.
Industry role in interpretation and implementation of regulations
Third, the hazard transfer issue highlights a trend toward the privatization of
global environmental governance through the development of voluntary
environmental management standards for industry. Environmental NGOs
excluded from development of ISO 14000 standards.
Environmental NGOs and the Evolution of the Basel Ban
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Regional and unilateral bans send message that poor world off limits to waste trade.
Global ban needed b/c hard for LDC’s to monitor- NGOs provide evidence of impact
of waste.
At negotiations six largest producers of hazardous waste; (US, UK, Germany,
Australia, Japan and Canada) opposed to full ban on waste trade. Part reason is
language OECD and Non-OECD, which included Europe, but OECD wants to keep
Eastern Europe open to exports.
Decision by consensus- want to bring on big 6- compromise, e.g., not a full ban but
rather a “request” that “developed” and “developing” countries refrain from engaging
in waste trade with one another. Move to separate disposal from recycling seen by
NGOs as a dangerous precedent.
Greenpeace detailed reports on recycling problems. Waste exporters move from
poorest countries to rapidly industrializing countries.
Next meeting- Greenpeace helps G-77 to compromise position- still insist on total ban
but change phase out date. Finally, EU adopts total phase out as of January 1, 1998.
Left up to states and NGO’s to ensure compliance.
Debate re legal status of ban: those opposed say no legal status b/c not amended to the
convention; Greenpeace says amendment not required.
US Chamber of commerce out and ratification in U.S. grinds to a halt. EU, however,
in ’98 bans exports of waste to non-OECD countries
Realized that ban would have to be amended to have legal effect, however.
Industry’s Arguments against the Basel Ban
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Industry mounts campaign against ban saying that scrap is not waste. Argue should
not ratify until have clear definition of waste.
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1) ban will not work without clear definition of waste- might stop recylables that not
waste. Won’t be fair.
2) opposite effect- not most environmentally sound outcomes. Discourage recyclinguse of more virgin materials. Harm development in LCD’s b/c recyclable scrap is less
expensive than virgin materials.
3) Puts free trade at risk and growth is essential to attainment of sustainable
development.
4) sovereignty of developing countries- developed world being patronizing and telling
what they can and cannot do. Denies LCD’s right to exercise comparative advantage
in recycling.
III.
Framework 3: Globalization(s) and “Law” in the Perspectives of Legal
Pluralism
A.
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Harry Arthurs, “Paradigms of Law”
Legal centralism- law at centre of events; law is neutral- law is knowledge and this
knowledge disseminated by those who understand it best to those who understand it
least.
Formalist paradigm fails to explain why law-like patterns of social behaviour exist
even though they lack some of the apparently essential characteristics of formal law.
Does not take into account frequent inability of formal law to achieve the results it
was designed to achieve.
Social scientists view that law consists ‘primarily of rules by which persons in society
order their conduct, and only secondarily of “norms for decision” developed by the
courts and of legislation enacted by the state.” Unwritten yet well-understood codes
of behaviour.
If this is law, then must be closely intertwined with the purposes of both the state and
groups or institutions that produce or consume it. Thus, we can no longer ignore its
economic function, its political content, or its social effects. Nor can we fail to
address the ongoing processes by which different manifestations of law come into
existence, shape and are given shape by events, and interact with each other. Finally,
we must accept that law is much more diverse in its content, causes, and effects than
our original paradigm proposed. This new way of looking at law we may therefore
call legal pluralism.
Lawyer sees legal pluralism as contradiction in terms- law-like rules must be given
another name- customs, conventions, understandings.
B.
MacDonald- “Modelling Legal Pluralism”
Legal pluralism, while alternative to mainstream, not really novel
Until 17th century, idea of a territorial nation state regulating everyday activity would
have thought to be bizarre. Neither Romans or medieval kings of England claimed a
monopoly on law and normativity.
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Codification on Continent and Judicature Acts bring in image of single, Statemanaged legal system
Legal pluralism a radically heterogeneous concept- plurality of legal orders –each
operative within the same social space and each one exists independently of the
others.
Multiplicity of legal orders in every society- different social milieux give citizens the
occasion to create and negotiate their own normative standards to shape and
symbolize social behaviour and their own institutions to reinforce or apply these
standards.
Not just state law acting on passive society- but interaction of multiplicity of regimes.
Note the diversity of norms, processes, and institutions within normative systems:
processes of human interaction are infinitely more varied than those suggested
by a myth of law that gives priority to legislatively announced claims of right
and judicial adjudication of these rights.
Critics of pluralism say that it undermines the rule of law- argue that without a
systematic, integrated, unitary set of legal prescriptions, normative conflict is
inevitable and official action cannot be subjected to the censure of controlling
constitutional and jurisdictional norms.
Sees as a means to ask the central questions of positive legal analysis across a broader
range of normative activity
(1) how is the exercise of power legitimated and what are the
institutional forms and criteria of legitimation?
(2) What are the principles of social ordering and what are the
diverse criteria of procedural due process appropriate to
each?
(3) What are the criteria of substantive justice appropriate to
these multiple institutional forms and processes of social
ordering?
Says point is to undercut hierarchy of orders and to ‘valorize’ otherwise suppressed
normative orders and normative discourses- says paradoxically ideal of rule of law is
promoted.
Denies local hegemony of national legal orders- argues for multiple, overlapping,
often non-geographically defined legal systems, it open inquiry into the impact of
often conflicting implicit normative frameworks. Legal pluralism presupposes the
possibility of transnational coordination without establishing new formalized
and explicit regimes to impose an international normative hierarchy.
Non conforming behaviour may merely mean alternative conception of legal
normativity- presumes inquiries about legitimacy, due process, etc. appropriate in
these informal regimes.
Says don’t need formal processes- legal pluralism asks whether more energy ought
to be directed to informal processes, implicit standards and horizontal processes
for dispute resolution. The issue is not so much one of constructing new ‘quasiofficial’ regimes as it is recognizing those regimes that exist already.
C.
Drummond, “The Process Geography of Law”
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Introduction
• Idea of place undergoing transformation in the social sciences- relatively fixed
geography holding notion of state, region, locale in place for centuries.
• Within durable boundaries of state, comparative law able to group legal traits, values
and systems together for the purpose of cross border comparison. Legal
anthropology- go to field to see legal habits of spatially contained people.
• Imagery of durable frontiers containing stable and homogeneous cultures is
giving way to an imagery of processes action, interaction, and movement.
Massive flows of globalization (information, technology, populations) new
reckoning about traditional ideas about place.
• Process geography- place has little importance in shaping local identities. If forces of
globalization eroding relevance of state borders in daily lives, then the importance of
national legal cultures and positive state laws is decreasing. Similarly, ‘tradional’
societies are negotiating their own multifaceted, globally-connected, modernities,
having long left behind legal anthropology’s conventional pieties about holisitic
legal systems. “a single legal order impinges on and will eventually triumph over the
legal diversity of the world…”
• Consider multi-sited interactions and processes that generate legal cultures.
Challenges idea of homogenization…
Comparative law and Salvage Anthropology
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Kahn-Freund, context of the viability of legal transplants across national borders and
increasing homogeneity of context across national borders. Be sensitive to context: “if
a law is vitally and organically connected to a particular society, it would be perilous
to transplant it into a jurisdiction with a vitally and organically distinct social
constitution.”
However, transnational context for several bodies of law levelled to such an extent
that national borders are irrelevant.
Comparative law threatens to be taken over by legal anthropology as the key
discipline in calibrating the appropriate balance between local and global. Scope
of context shifted from national to either local or multi-cited field. Also, state
rendered redundant as a source of law by TNC’s, international finance, mass
migrations of labour and capital, and rapidly growing infrastructure of
transnational communications. (256).
The Issue Approached through Gitano Family Law
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Challenges homogenization of levelling of contextual difference with family law.
Marriages seem to be linked to local values and customs as much as any form of law
Westernization of idea of divorce from redress for sin to relief from marriage failure.
Kahn-Freund- family law systems harmonized b/c of new relations created by global
markets, gradual replacement of kin relations by labour relations, more direct rapport
between state and individual through usurpation of kinds of public services
previously provided by kin, community, and church.
17
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1.
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Author looks at ways in which repugnancy (legal terminology of incommensurability)
and trump (the attempt of a legal order to impose, through a variety of coercions, a
single, commensurating standard) are “digested in incommensurate and incompletely
commensurate contexts.”
Locales persist as meaningful sites of inquiry but suffused with remote influences.
Both nation and culture are continually changing the style in which they are
imagined in response to constantly changing foils.
Focus on three localizable, multifaceted struggles: 1) between the Holy See and
Madrid, 2) between Andalucia, Madrid, and the globally dispersed Catholic and
tourist populations, and 3) between Gitano families, Andalucia, Madrid, and the
globally shifting tourist population.
The Holy See and the Spanish State
First struggle between H See and state came with rise of secular state that created a
notion of citizenship that overlay territory housed by religious communities.
Don’t interfere with sacramental marriage regime, but procedural- manage secular
incidents of marriage in civil society- eventually make it severable from sacramentthis narrowly construed battle between the sacrament and contract attests to a
large struggle to fix descriptive priority between the category of citizen and the
category of adherent.
Categorized- though in conflict at many points of contact, inscribed their practices in
regimes of formal law, civil or canon
Spain’s second republic- religious affiliation and citizenship construed as
incommensurable- freedom of religion- liberal divorce laws- marriage civil
Conservatives two years later stopped
Franco- marry by priest- substantive cannon law regime of the Holy See.
1981 reforms- Holy see pleading for deep pluralism to retain hold on Spanish
families- Rome own substantive family law regime in parallel to secular regime in
Madrid.
Roman law puts Catholic marriage as prestigious- drafter change in new legislation
1981. In this manner, the state effectively treated the problem of
incommensurability as a psychosomatic disorder requiring only a talking cure,
albeit a soporific talk of law.
Spain wholly incorporated Canon law into its hierarch of sources and thereby
gained license to manage it.
Weak pluralism- where included field has boundaries delimited, modifications
anticipated, and imaginative manipulations contained by an all-encompassing central
system.
Argue that imagined Spanish nation less distinct in relation to Europe-
Andalucia, Madrid, and the Tourist Population
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Andulucia- neither Madrid or Vatican have really taken hold (264).
Marketing an ‘authentic’ rural experience for tourist-spectators
Tension between local, national, and global ideation
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Presence of tourists feeds degree of self-consiousness
Semana Santo not an orthodox Catholic event but the ethos on the streets has an
aesthetic style and mood that is overwhelmingly catholic.
Ritual draws on significance that is both remotely constructed and locally
appropriatedNeither church nor state can control event
Dialogic conception of identity (267)?
In area of family law, reforms of last several centuries directed at elite audiences that
made up governing classes, but popular culture has transformed the arenas and
locales in which predominant versions of the family are purveyed. Popular
understandings of the family have rendered to some extent the recent trump of state
over church redundant. Popular versions have incorporated and appropriated official
elements.
The Struggle between Gitano families, Andalucia, Madrid, and the Tourist
Population.
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Locals in Jerez construct a local family law by a mixture of pragmatics, appropriation
and invention.
Authenticity key way to tap into tourist market- transformation of economy
Gitano Wedding- first opened and then private – criticism from locals- this
international presence cannot be fully evicted without leaving a local history, like
that of the family marked by having finally pushed a parasitic adult child out of
the home.
Conclusion
• Forms of legitimation that could bring a couple into a community and a community
into its place in the national identity• “getting married the way the Gitanos get married” will change depending on situation
of Gitanos in Jerez, the situation of Jerez in Andalucia and of Andalucia in Spain, and
the situation of Spain within EU and global economy. Gitos conception will change
with prospect of upward mobility- cultural capital to other ways to enhance
legitimacy.
• Family law, as practiced and idealized, continues to respond to local, national,
and global imageries, selectively incorporating and resisting meaning in the way
that Semana Santa both rejects Catholic orthodoxy and presents a fresh version
of it. The creation of global markets and the omnipresence of mass media and a
globally floating touristic gaze has not served to flatten national cultures and
create homogeneous geopolitical societies into which laws can be inserted
mechanically to produce instantaneous harmony. Rather the reshaping of
national identity in the light of globalization has produced a new set of political
economic determinants with their own logic to which communities dialogically
respond, reinscribing their identities against a shifting backdrop. What is
happening is not so much harmonization but constantly renewed ways of
digesting a multiplicity of official presentations of the family, of negotiating the
19
character of the family and the character of the self in the family according to a
vast multiplicity of signifiers from many dispersed locales.
•
Analysis suggests that focus on comparative law and legal anthropology ought not to
be formulation of repugnancy and trump- ought to emphasize the local use of the
pretension of the metropolitan centre can dictate for the hinterland, and on the
conflicts between multiple jurisdictions, multiple sites, and multiple intersections
emerging from multiple remote locales.
D.
F.G. Snyder, Governing Globalization
Introduction:
• Globalization governed by the totality of strategically determined, situationally
specific and often episodic conjunctions of a multiplicity of sites throughout the
world. Sites have institutional, normative and processual characteristics. Totality of
these sites represents a new global form of legal pluralism.
• Sociological approach- relations among strategic actors- firms, states, organizations.
Alternatively, can see them implicating different structures of governance: market
based or polity based structures. Thirdly, put into play global economic networks and
various sites of global legal pluralism.
Towards a theory of global legal pluralism
Globalisation
• Most salient feature of globalization in economic terms is the development of
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International Production Networks (IPN’s), dispersion of production facilities,
technical and functional fragmentation of production, fragmentation of ownership,
flexible production processes, worldwide sourcing, interpenetration of international
financial markets, changes in form of work.
Political standpoint- emergence of MNC’s, non-governmental organizations and
social movements. Weakening, restructuring of state. Radically altered the
relationship between governance and territory. Splintered boundaries between
domestic and external spheres of nation states; articulation of multi-level governance;
interlocking politics and policy networks; render universal the discourse of human
rights.
Social processes- spread of certain models of production and patterns of consumption.
Cultural phenomenon- new global culture shared by elite groups- increased range and
depth of international and infra-national cultural conflicts, as well as resitance to new
forms of cultural imperialism.
Sites
• Usually view legal arrangements as 1) in terms of K’s between nominally equal
parties, such as individuals, companies or states- bilateral, multilateral form. 2)
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conceive as hierarchical, constituting various regional or international forms of multilevel governance.
• Disjunction between our traditional, normative, and hierarchical conceptions of law
governing international trade and the shape of the economic networks that are an
integral part of globalization. Have to revise views of legal order- global economic
networks are the product of strategic behaviour- locus of power and a specific
hierarchy. Provoked demands for constitionalisation of global governance…
• Relationship between economic globalization and sites
1) define the segments of a global commodity chain or network
2) second step focuses on each segment and asks questions
3) identify the relevant institutions, norms and processes.
• Instead of starting with normative systems, start with social and economic relations
and how they are organised and governed.
• Global commodity chain- a network of labour and production processes whose end
result is a finished commodity. Strongly connected to specific systems of production
and to involve particular patterns of co-ordinated trade.
• Each commodity chain has three main dimensions: 1) structure of inputs and outputsproducts and services are linked together in a sequence in which each activity adds
value to its predecessor; 2) territoriality: networks of enterprises may be spatially
dispersed or concentrated; 3) structure of governance: relationships of power and
authority determine the flow and allocation of resources (financial, material, human)
within the chain.
• Two distinct types of governance for global commodity chains: 1) producer-driven
commodity chains, in which the system of production is controlled by large integrated
industrial enterprise; 2) buyer-driven commodity chains, production networks
typically decentralised and power rests with large retailers, brand-name merchadisers
and trading companies.
• Segments: invention, production, marketing, distribution, consumption.
• Role of law and norms- sites of global pluralism with each site comprising specific
institutions, norms and processes, and law.
• Interaction of units- property arrangements, modes of labour control…
• [3rd step] What institutions, norms and dispute resolution processes are pertinent to
these aspects of the social organisation of each segment? What aspects of law or
other norms play a role in its governance?
Number of component units (monopoly, oligopoly, competition)
• To what extent does law provide or permit barriers to entry? Facilitate market access?
• If demonopolisation is important to contemporary global economy, what role to sites
of global legal pluralism play in relation to this process?
Geographical concentration or dispersal
• What role does legal pluralism (sites), incentives of different institutions, norms, and
processes provide for either the concentration or dispersal in different sites.
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Membership in one or more Chains
• Is one box located in more than one commodity chain- what role toes law play in
relation to management of relation between different commodity chains.
Property Arrangements
• If different property-like arrangements prevail among the various units in a box, what
institutions, norms, and processes encourage or tolerate diversity?
Modes of Labour Control
• To what extent are different modes of labour control encouraged by legal, institutions,
norms or processes? How are conflicts resovled?
Links within a Chain
Connection between economic relations and specific sites
• To what extent are sites important in governing the social organization of box when
sites are not geographically proximate to the box- when governance, economic
processes and territory are not congruent.
Relations between sites and the chain as a whole
• What are the criteria for evaluating the effectiveness of sites- would be better to have
a single site or small number of sites?
Global Legal Pluralism
• There are sources of economically, socially, politically, culturally and juridicially
significant norms which operate across national borders and to a large extent
independently of states.
• Contract only one among several legal devises, sources of law, and forms of
legitimation.
• State plays a role in international trade, regional organization [EU], and international
organisations like the WTO.
• Frequently the most significant norms are soft law, rules of conduct which in
principle have no legally binding force but which may have practical effects.
• Soft and hard law important- bundles of norms may be aggregated in form of a
system- plurality of such systems including norm-generating systems- part of distinct
networks rather than a hierarchy.
• Two aspects of global legal pluralism- structural and relational.
• Structural- variety of institutions, norms and dispute resolution processes located at
different sites. What is a site? States included but also regional and international
organizations, diversity of other institutional, normative and processual sites such as
commercial arbitration, trade associations, etc.
• Relational: relations between sites of different types in terms of structure and process.
Sites may be automonous, part of same or different regimes, part of a single system of
multi-level governance or otherwise interconnected. In terms of process- distinct and
discrete, competing, overlapping or feed into each other to form a ‘structural set’.
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• The relations of structure and process constitute the global legal playing field.
•
Determine the basic characteristics of global legal pluralism., such as equality or
hierarchy, dominance or submission, creativity or imitation. Influence growth or
survival of different sites.
Global economic networks are constructed on a global playing field, which is
organized or structured partly by global legal pluralism.
AN EXAMPLE: THE GLOBAL TOY INDUSTRY
The global commodity chain in toys
• Barbie ‘made in China’ but Japan supplies nylon hair; Saudi Arabia- oil; Japan and
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US most of machinery and tools; Honk Kong banking and insurance. Barbie a global
product in terns of fragmentation of production process, dispersion of production
facilities and organization of production within international production networks.
International commodity chain dominated by the buyers- Buyers- Mattel and Hasbropower over designs and brands. Control access of inventors, intermediaries and
factories to the market.
Toy firms- mostly US
Further down hierarchy is Hong Kong intermediaries between MNC’s and factorieslocation of management, design, research and development, marketing, quality
control, finance, and shipping.
China Factories
ECONOMIC GLOBALIZATION AND GLOBAL LEGAL PLURALISM
Monopoly or competition
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Role of institutions, norms and processes in organizing segments
Focus on EU institutions and trade legislation
New quota regime and provisions to administer- Europeanisation of law.
UK challenge – litigation, law reform.
Challenge on Chinese toys quotas by Toy Manufacturers of Europe- Hong Kong
firms affected but could not lobby government b/c factories in China, so go to
associations.
TME- US, Japan- 80% of toy manufacuters- main interest in keeping open markets
for main source of production- China. Concerned to use the EU market and law
effectively in their strategies for restructuring the international toy sector and
ensuring the integration of the EU market in the global commodity Chain. TME
opposed imposition of quotas from outset.
In response to pressure [litigation and lobbying] - legislature raises quota
EC law moves closer to meet interests of MNC’s making licencing more flexiblelowers barriers to entry and costs of importation, notably for large firms.
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• Legislative reforms testify to the close co-ordination between firms and member
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states of EC. Ensures that changes in law in step with changing interests of EU toy
sector.
To apply only to components of toys subject to further industrial transformationrecognition of international chain of production.
Legal position from imports to custom regulation
The legal reforms thus fostered a transformation of the number of production units,
increase in their geographical dispersal, potential changes in the property and other
arrangements linking various parts of the chain, as well as partial transformation of
the relevant institutions norms and processes of governance.
EC law facilitated the redefinition of the role of EU firms in global commodity chainadapted production to point where import quotas no longer necessary- transformation
of industry.
Geographic concentration or dispersal
• Invention, finance, marketing, and retailing of international toy industry are
concentrated.
• The geographical separation of production from finance, marketing and retailing is
encouraged by international norms concerning the customs operations know in the
EU as inward processing and outward processing. It is no exaggeration to describe the
existence and increased use of these customs rules as the legal basis for what has been
called the new international division of labour.
• Overarching international legal framework- International Convention on the
Simplification and Harmonization of Customs Procedures.
• Kyoto Convention- allows any state to become contracting party- don’t have to ratify.
Required to accept one annex- assumed to agree to all provision unless cites
reservations b/c of difference with its national legislative provisions.
• EC, US and China members
• Legal provisions have encouraged the geographical separation from production of
invention, distribution, and marketing in the international commodity chain.
• Chinese legislation on Special Economic Zones- has also had an impact- Chinese
laws on FDI, imports and exports, taxation and labour are of special importance.
• Hong Kong often owns part of Chinese companies- toys reexported from Hong Kongpower in toy chain lies in Hong Kong.
Multiple memberships
Property
• Highest barriers to entry in buyer-driven commodity chains typically concern product
conception, design and marketing. Branding, intellectual property key. US, EU law or
the WTO Trips- determine number of buyers and their market power. Creates or
consolidates barriers to entry.
• Number of IP cases brought by international buyers in Hong Kong courts- Mattel
sues Tonka for copyright infringement on use of Barbie’s head sculpture for Miss
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America dolls. Hong Kong courts favourable to such claims since protection of
intellectual property is crucial to the legitimacy of Hong Kong from the
standpoint of strategic actors and its continued role as a site within the
framework of global legal pluralism.
Labour
• Local labour not that important- the externalities of one US company buying anotherMattel buys Tyco- happen mostly in China where applicable labour laws a lot
different. State much less significant that the social organization of the labour market
as a factor of the control of labour and constraint on management.
• Codes of conduct elaborated by MNC’s and sector specific trade associations may be
much more important in practice than formal national or local legislation. Large toy
companies sector-specific codes of conduct which are imposed or recommended by
their factories. Specify working conditions and are changing China’s toy industry
more than anything else.
• Code of Business Practices of the International Council of Toy Industries
• Voluntary code of conduct re operating conditions- obtain contractor adherence in
advance- borrows from core labour rights set out in International Labour Organisation
(ILO)- omits rights like right to organize or collective bargaining.
• Enforcement through contract- statement of compliance by officer of each
manufacturing company or contractor. If don’t comply- breach of K.
• Pressure to adopt codes from worldwide network of NGOs- affects conditions and
creates the norms that are imposed.
• Reflect the organization of power: 1) dominant buyers few in number so susceptible
to political pressure; 2) dominant buyers whose power lies in control of brands able to
set industry-wide code of conduct- impose on suppliers, at least contractually; 3)
power struggles between buyers and manufacturers. US buyers use soft law to ensure
dominance over Hong Kong and China. Latter want to create own brands, protected
by WTO IP law to break out of dependence. Conflicts re alternative normative
frameworks governing the more long-term relationship between strategic actors.
Links within a Chain
• Service activities of marketing and distribution which co-ordinate and drive the chain
as a whole.
• The conception of toys, intellectual property in brands, and control of marketing and
distribution, now a lot on internet, are therefore boxes of the chain in which
competition must fierce and attention to law acute. International commodity chain in
toys depends on IP, K and the provision of services, including legal services.
• Major companies trying to market on the web.
Connections between economic relations and specific sites
• Lack of congruence between governance, economic processes and territory
• Pressure by GreenPeace to ban use of PVC changes manufacturing of toys in US- no
legislation but some producers changing production methods to meet.
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• EU and US safety standard apply to toys manufactured in China b/c production has to
adapt
Relations between sites and chain as a whole
• Single site might govern chain as a whole. GATT/WTO holds out to China and
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MNC’s there the promise of new institutions, norms and processes which would be
available on Chinese accession. When joins GATT firms will benefit from general
elimination of quantative restrictions. Provision of services and the protection of
intellectual property in brand names are likely to be affected by the eventual
implementation of GATS and TRIPs.
Does not mean that WTO at apex of institutional and normative hierarchy- claim as
dominant position in international trade law.
Another case is a single site whose institutions, norms and dispute resolution
processes integrate as part of its operation the results of some or all other sites in the
chain. A structural set, formed through the mutual convertibility of rules and
resources in one domain of action to those pertaining to another.
Example of UK toy litigation- ECJ finds that Council enjoys exercise of discretionwill not interfere unless obvious error.
Author says this is the result of a judicial compromise b/c have to have unanimous
judgement- ensure integrity of EU political process- a member state or other
strategic actor could not use litigation to upset or revise the results of complex
political negotiations regarding external trade.
Bound up with EU rules for the globalization game- rules concern relations between
strategic actors, relations between actors and governance structures, and relations
between different governance structures.
ECJ judgment did not deal directly but had wider consequences: ensured the integrity
of the EU political process, insulating it from collateral attack by means of judicial
review. Compromise of the ECJ tends to insulate and enhance the integrity of the
political space and strengthen its market-oriented normative order.
The economic impact minimal- the primary significance of the judgment lay in
articulating legal principles for the future and in its broader implications for the
relationship between EU law and other institutional, normative and processual
sites.
Legal principles concerned role of EC legislature in dealing with foreign trade and
relations between Council and ECJ. Broader implications how much impact the
international commodity chain could have on influencing EC legislation both by
means of its structural position and by direct and indirect pressure on national
governments..
Role of EU law as part of global legal pluralism: ECJ judgement sanctioned the
integrity of the EU political process and thus the political and law-creating salience of
the market structure. Inserted global legal pluralism into EU law and vice-versa.
Imported to EU law the institutions, norms and presses of other global sites, e.g. U.S.
intellectual property law or organization of toy production in Chinese SEZ
(incorporated into EU economic, political, and legal relations).
26
• ECJ judgement incorporated into realm of EU law the norms produced by institutions
•
and processes in other sites of global legal pluralism- by means of invisible legal
transplants.
Norms produced by EU part of global commodity chain in toys. Conditioned, shaped
and were integral to decision-making calculus…
CONCLUSION
• Development of economic relations influence by firms that take into account
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framework of law and other normative frameworks- contributes to development of
global legal pluralism- development of global networks in toy industry occurred in
conjuction with development of a variety of structural sites throughout the world,
each of which compromises institutions, norms and dispute resolution processes.
Strategic actors use the law and have been shaped by it also fundamental in
determining which institutional, normative and processual sites are successful.
Taken together, the different but interwoven sets of institutions, norms and
dispute resolution processes that compromise global legal pluralism amount to a
novel regime for governing global economic networks. Less a structure of multilevel governance than a conjunction of distinctive institutional and normative
sites for the production, implementation and sanctioning of rules.
Toy industry- structure of power buyer driven-
1) global legal pluralism is a way of describing the structure of sites taken as a wholeglobal legal pluralism described as a network
2) sites are market-based- generated by economic actors as part of economic processes.
Some are polity-based in that they form a part of established political structures.
3) Various sites differ in decision-making structure, i.e., institutions, norms and
processes. Different emphasis on case law, use of precedent; however, sites are
interrelated in relation to jurisdiction, copying or borrowing of norms, interconnection of
dispute resolution processes.
4) Not all equally vulnerable to economic or political pressures. In cases of political
conflict between NGOs and MNC’s struggle between competing groups not limited to a
single site. Each of the groups may invoke institutions, norms and processes of different
sites.
5) Different sites may involve different legal cultures and sets of social relations.
6) Specific sites are affected by conflicts between economomic organizations occupying
the same box in a global commodity chain. Conflicts over markets may pit foreign
producers, exporters and importers against domestic producers.
7) Sites are not always or even usually alternatives in dispute resolution as might be
expected if think of norms governing economic networks as being hierarchical. Each site
deals with a specific part of the chain. Once a chain is established, its activities are
governed by a given set of rules, emanating from a variety of linked sites, except to the
extent that normal conflicts of law rules allows firms choice of governing legislation or a
choice of dispute resolution.
27
8) different sites not necessarily hierarchical, sometimes competing, sometimes
collaborative. Even when viewed broadly do not make up a legal system. Contrast with
lawyers view of multi-level governance of international economic relations.
IV.
Framework 4: In search of “Transnational” Law
Transnational Relations, Actors and Situations – Transnational Law?
Transnational loose sense of what is being referred to- implicitly calling on several
submeanings at once. Scepticism as to whether transnational law actually exists- Jessop
account of transnational situations, in world organized around state legal orders, public
international law and private international law (conflict of laws) completely cover the
field re normative frameworks regulating such situations. Sceptics tied to primacy of state
or the “interstate”.
Transnational law as inchoate concept- developing- idea that international law doesn’t
really capture the concept but not sure what should replace.
1.
Transnational Law used as synonym for International Lawtraditional view that private international law and public international
law cover all normative ground necessary to deal with transnational
situations. Focus on role of international law in regulating
transnational situations and not merely interstate relations.
• Public International Law: (PIL) Law created through interstate conduct and that
regulates interstate conduct. Also law governing the conduct of other entities
where states, acting collectively, have brought such entities into (legal) existence
either expressly or by acquiescence over time, e.g., United Nations, Geneva
conventions- post ’45 view that individuals can exercise rights against states,
whereas previously outside the realm of PIL.
• Private International Law (Conflict of Laws) Where persons have
relationships, transactions or encounters in context of geographically-complex
facts (involving more than one jurisdiction for our purposes more than one state),
the question of how to deal with private law rights and obligations arises.
1. Which state has jurisdiction?
2. What is the ‘applicable’ or ‘governing’ law?
3. Will other jurisdictions recognize the judgment?
• Note that the mainstream modern conception of private international law is that
each jurisdiction has its own national rules on transnational private law situations
(jurisdiction, choice of law and recognition &/or enforcement), such that this area
of law is actually a field of domestic law, and not ‘international’ law in the public
international law. This area of law is ‘interstate’ in sense that each system’s
domestic rules exist to regulate the interaction of the domestic legal system with
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foreign state legal systems in areas traditionally through of as ‘private law’
relations.
Transnational Law Umbrella Concept- includes both public and private
international law, but also other rules which do not wholly fit into such standard
categories (in effect the law dealing with transnational situations which cannot be
reduces to an interstate normative framework).
Transnational Law as a separate realm from Public International Law and
Private International Law- distinction between do not wholly fit – into exclusive
sphere..
Conceptualizing Transnational Law as a Separate Realm:
1) all non-state and non-interstate legal relationships that are not
governed (at least in all aspects) by PIL or p.i.l.
2) a hybrid of state and interstate law
a) mix of PIL and private i.l., as well as international and
domestic state rules- but norms in any situation being
identified as being drawn from one system or another.
b) A sui generis normativity that is neither public nor private
international, neither international nor domestic, but all at
once ‘transnational law’- ironic or paradoxical sense- not
law but made of all laws.
3) rules and principles that regulate how other legal orders connect
up and join hand to solve specific problems. Transnational Law
as the law of the interface, the norms that connect state and
interstate rules.
4) Law generated by or in reference to transnational non-legal
(social, political, cultural, economic relations) with states being
treated as non-exclusive and non primary actors in transnational
relations. Law generated by something imagined as world
community. Talk of transnational law paralleling transnational
community. Can we think of ‘interstate institutional
processes” and “state legal systems” interacting with
“transnational civil society” in such a way that we have a
community beyond all three?
A.
Jessup, Transnational Law
• Problem not international or international law b/c concerned with more than
•
relations between states.
“transnational law” to include all law which regulates actions or events that
transcend national frontiers. Both public and private international law are
29
•
•
B.
included, as are other rules which do not wholly fit into such standard
categories.
Transnational situations involve individuals, corporations, states, organizations of
states, or other groups.
Choice of legal rules in transnational situation- private international law- conflict
of lawsSlattery- “The Organic Constitution”
• St Catherine’s Milling & Lumber cites Royal Proclamation 1763- says that territory
•
•
never ceded to or purchased by the Crown remained with them- in fact a usufructary
right, dependant upon the goodwill of the Sovereign.
David Mackay viewpoint that First Peoples of Canada are autonomous people with
own laws and lands, own system of government and justice.
Imperial Model of Constitution:
1) in 16th and 17th centuries- native Americans had no legal
rights or status under the international law of the times. Did
not qualify as international entities b/c of modest size,
mobile lifestyle, diffuse political structures, and religious
beliefs. No international rights to territories b/c vacant and
open to appropriation. English/French gain title to land by
“discovering” and exploring land. Legal process of how
Canada came to be, then, does not include aboriginals.
2) Canadian constitution rooted in British Law- Constitution
Act 1867.
3) Governmental authority from Canadian Crown- so
aboriginals do not have any inherent jurisdiction.
4) Main body of law traces back to European sources.
Aboriginal custom not law or superseded when French and
English laws introduced.
5) No such thing as aboriginal title- all land rights stem from
Crown.
6) Agreements between Aboriginal peoples and French and
British Crowns cannot be treated as international treaties
b/c never recognized as sovereign entities.
• Eurocentric view of laws and institutions; governmental authority stems from
Crown; postivist creed that law and governmental institutions are the product of
legislation. 1) Aboriginals lacked international status, territorial title, jurisidiction,
laws or land rights; 2) even if had rights, lost when Europeans took control.
• Slattery says have to move from a framework grounded in imperial history to a
framework more open to local history, tradition and perspectives.
• Process underway with Calder and s. 35(1) existing treaty rights recognized
Organic Model-
30
• North America not vacant when French and British arrived. Treaties or informal
•
•
•
•
•
•
•
•
•
process where Crown’s suzerainty was gradually extended and acquiesced in; rarely,
product of war or coercioin. Aboriginal nations active participants in the processes
that gave rise to federation of Canada.
Canada’s title grounded in occupation of indigenous nations- merging of
sovereignty’s of component nations
Constitutional law relating to Aboriginals is grounded in ancient practices generated
by interaction between Aboriginals and French and English- practices crystallized
into a distinctive body of “common” or unwritten law. Drew on elements from both
sides to produce unique set of intersocietal rules. The Royal Proclamation was not the
source of the law in question; it only reflected and gave voice to a much larger body
of intersocietal custom. Regocnize internal autonomy, customary laws and legal
rights of Aboriginals within federal superstructure linking to Canadian community.
Partially autonomous- under Crown’s protection- right to govern own affairsaboriginal right to self-government does not flow from Crown but is an inherent
right- not unlimited under the aegis of Canadian constitution.
Our laws not just English and French, but include Aboriginal laws.
Aboriginal title from long-standing occupation under customary law.
Treaties concluded between Aboriginal nations and European powers often
international in nature- conducted between independent, self-governing political
entities, each with own territories. Growth of European power- later treaties operated
on a domestic level, contributing to the formation of the Canadian Constitution and
the common law doctrine of aboriginal rights.
Organic model holds that Constitution rooted in Canadian soil; 2) pluralist conception
of the sources of law and authority, viewing Crown as constitutional trustee or
coordinate spheres of jurisdiction rather than their exclusive source. 3) Model rejects
the positivist view that fundamental laws are embodied in legislation- law as
immanent in our collective practices and traditions- customary in nature as opposed to
simply positivist law.
1) Organic Model rejects view of North America as legal vacuum- America
domain of aboriginal polities possessing international status, title, jurisdiction,
laws, and land rights. Doctrine of Aboriginal rights; 2) Rights remained in force
with Europeans until modified by advent of Crown- doctrine of continuity.
Aboriginal norms as part of fundamental legal traditions
Slattery:




Source of Canadian constitution- body of customary law.
Inter-societal custom- a source, basis for Canadian constitutional law
Between societies- aboriginals and settler societies French/English.
Standard conception of Canadian constitution- imperial constitution.
o Embodies in a series of statutes- Const. Act 1867, and Const. Act 1982.
o Enacted by Br. Parliament- positive law- laid down by legislature
o B/c Canada was a Br. Colony up to 1930s.
31
o Authority because Crown head of Br. Empire- conventional answer- Br.
Crown claimed Canada by virtue of discovery as if it were a vacant landimposed colonies by force- and inherited colony from the French.
o Br. Inherited new France under the treaty of Paris.
o Terra Nullis- factual presence but no legal role.
Organic Model of the Constitution

Four Steps
1) Contrary to Terra Nullius, 1500-1800, particularly 1600-1800- find that were a
plethora of relationships established between aboriginal peoples and the French
and British Crowns and their representatives.
Took form of treaties and alliances- those articulate relationship only tip of
iceberg of larger mass of inter-societal relationships. Created a web that united
aboriginal communities and settlers. Body of material had legal significance.
 Slattery argues that these are international, i.e., between entities that are
independent, sovereign.
2) International Law in conceptions
3) Became part of British Colonial Law…unwritten constitution of Br.
Empire…customary unwritten template for relations between indigenous peoples
and the Crown.
 Coercive process- British imposed
4) On Canadian Independence- transformed into Canadian Common Law
 Gradual process
 Intersocietal custom
 Basic principles of justice

Aboriginal peoples as sovereign entities / contrast with components of a federal
structure.
Now 35(1) of Const. Act 1982. Existing aboriginal and treaty rights are hereby
recognized and affirmed. Suggests it’s incorporating something that’s already there.

Scenario- right of indigenous tribe to have say in mining provisions…
What principles to be used- principles of international law- inter-societal aspect of the
relationship- what if never concede that British Crown has taken full control.
Ben R. relationship common law and customary international law..
Jessop- permeability of national legal system to different levels.
 Reference to monistic forms of law.
 ‘double-functioning’ judge looks like deciding local cases, but 1% of time has to act
as an international judge, where ????? Jessop pg 4
 decision-maker must adopt a different set of orientations if the context is different.
 Lawyers to argue judges should be loyal to cosmopolitan/public international law
system.
32


Van der Peet 1603- cultural rights
Delgamuukw sovereignty- Slattery says far better…
Jus Cogens- peremptory norms- no state is so powerful that can do whatever it wants.
*Consider how Aboriginal Rights, contribution to development of Canadian constitution
can be viewed within the framework of transnational relations- situations. Perhaps not
public international or private international in terms of conception of Western territorial
state; however, an autonomous actor dealing with a state [?]- a transnational situation
which can’t be reduced to an in interstate normative framework. Idea of an interface
where normative systems interact.
C. David Szablowski Mining, Displacement and the World Bank: A Case Analysis
of Compania Mera Antamina’s Operations in Peru.
• Transformation of mining industry- liberalization of south- introduction of
•
transnational mining companies- conflicts with local [indigenous] communities.
Involvement of transnational advocacy networks- what principles ought to govern
mining an community relationships? How to distribute benefits? What ought to be
the content of mining industry’s “corporate responsibility” towards local
communities?
Concept of “displacement” set of standards or principles developed to regulate local
distribution of impacts and benefits associated with “development”. Originally
internal regulatory regime of World Bank- limit harms of public sector infrastructure.
Operational Directive 4.3 of Involuntary resettlement- forms part of a regulatory
regime- or legal field- that operates on a trasnational scale, with limited regard for
national borders. Regulatory impact on relationship between mining companies and
local communities. “legitimation effect” gives sense of responsible behaviour on part
of mining industry.
The World Bank, Mining, and Involuntary Resettlement
• Legal field concept against formalist view of operation of law, but analysis of the
•
social field composed of the ensemble of actors involved in the production of judicial
decisions. How symbolic capital, interpretive authority and power are distributed
among actors occupying different structural roles (lawyers, judges, academics, etc.).
Ways of thinking- understanding of legal regimes requires close understanding of the
structures and contested rules of the game underlying the “social universe” within
which the operation takes place.
Legal fields involved in production of two effects: regulation and legitimation. Field
works to assert a particular social order and to legitimate it.
Origin of the Field
• Corporate Social Responsibility (CSR) in response to transnational advocacy
networks bringing public attention to downsides of global mining- appropriation of
land- environmental threats- human rights violations.
33
• Miners have favourable regulatory climate- don’t want to risk investment by findings
of environmental liability or labelled as “bad actors”. Lose concessions.
Operational Directive 4.3 on Involuntary Resettlement:
• Comes into effect when company becomes a commercial client of World Bank
agency. Compliance mandatory for all companies working with World Bank- failure
to comply is grounds for termination of K.
• Purpose: displaced population should receive benefits. Socio-economic harm- those
displaced should be at least as well off as before development.
• Rooted in principle of compensation for expropriation. Eminent Domain- unfettered
freedom of K can have public impact. In past- did not take into account local contexti.e., did not compensate de facto property regimes of local population or inflation.
• Directive- treat formal/informal property equally; reconstruct damaged social
components of local production systems; protect vulnerable groups- transplanted and
host community to participate in planning.
• Directive presents a normative challenge to how business is conventionally
transacted in a mining enterprise- broader compensations of property and
compensation- company in fiduciary roles. Legal field will have to respond to forces
within company that see business as usual. Result of this conflict will have impact on
overall regulatory influence of the field.
• Regulatory impact of the Directive’s legal field will to a large extent depend on
the mechanism and structures through which the Directive is interpreted and
applied in the local environment.
• Project sponsor to report on progress• Local people shut out of process- no requirement to make them aware of
Directive. Company’s reports become the authoritative “legal facts” describing local
environment- subject to methodological review.
• Contrast with liberal legal systems that see individual as active- rights-bearing- agentprotected from arbitrary government action. Person entitled to know the rules and
present their case. Abuse of these rights de-ligitimizes the process- here local people
seen as passive actors. May have some role when something “goes wrong”
• No formal procedural rights on locals- just duty on project sponsor to ensure
participation. What constitutes participation- tokenistic, involving no real impact on
decision-making.
• Paternalistic attitude towards locals.
• Problem b/c interpretation of Directive will determine impact on lives of locals- also
legitimation aspect- hard to get support against if seems legitimate.
• Assumption that integrity and legitimacy of interpretations will be produced by
disinterested and autonomous technical professionals, applying scientificallyvalidated professional norms and judgments.
• Mining companies hire social specialists to phrase controversial issues within a
“social responsibility” framework. What is their extent and depth of their influence
and interpretive authority.
• Resistance in mining industry- unfairly criticised- CSR not ‘real’ work.
34
• Lack of respect for social scientists- company focus on efficiency – resistance to
•
•
recommendations that increase cost or cause delays.
Call into question capacity of social specialists to ensure the integrity and legitimacy
of “decisions” produced by the Directive’s legal field.
Even with World Bank- noncompliance with Directive- significance increased with
application of outside pressure.
Case Study : CMA’s Entry into the District of San Marcos
• Strong-armed negotiating tactics- threat to use expropriation if did not go along- to
oppose company would be to lose out on benefits- also trying to suggest it’s
benevolent and trustworthy character.
• Framed the resettlement benefits as of their own intiative not because doing what had
to do (local community could have used this as a bargaining chip).
• The did not live up to promises in practice- community anger
• No jobs created, cash but livelihood source lost.
• No money management skills or investment opportunities for $US 33, 000. “A form
of productive property” exchanged for one that would chiefly be consumed.
3. Epilogue
• Local people have succeeded in prompting further dimensions of regulatory action
•
from the Directive’s legal field. Local people and civil society send letter to president,
Congress of Peru, Canadian embassy and World Bank.
World Bank aware- initiates compliance review- transformed context of relations
between CMA and community.
4. Regulation and legitimation effects of Directive’s legal field.
• Directive part of a transnational legal field regime that has been called upon in the
•
•
context of transnational mineral development to remedy the perceived deficiencies in
national regulatory activity.
Directive mobilized to help regulate corporate-community relations and answer
critics, both actual and potential.
Directives conception of land transactions different from business –sees as a fiduciary
relationship. A lot of faith placed in social specialists- that they are impartial- that
they have shared professional standards- that they are acting in the interests of the
community.
Interpretive Authority of Social Specialists
• CMA example limited role for social specialists- excluded from major decisions.
• Interpretation of directive in line with corporate interests – evidence of monetization
of “resettlement”.
35
The Existence of Shared Professional Standards regarding the Directive
• No shared standards
Justification for the denial of full procedural rights to affected people
• Limited negotiation with locals- ultimatum for near immediate departure when plans
changed.
• Compel entitled group to accept plan without change
• Did not explain that Directive binding- no explanation of complaint procedures
• Marginalization of non-land owners- limit community bargaining power.
Implications for Regulation and Legitimation
• Legal fields system of exerting a legitimated regulatory influence through the use
of social specialists failed. Very little local legitimacy. Campesinos unaware of
legal field’s existence.
• Local people no faith in company
• Legitimation b/c unless community gets the story out, the company can control
the message: reports of social specialists valuable because they outline
interlinked processes of community participation, identification of displaced
persons, and the provision of generous resettlement benefits.
• Current application of the Directive is flawed – unclear that helps local people.
D. Craig Scott, Section 4 “Sources of Law: International Law and National Law”
• Conception within national legal system of whether international law’s development
of corporate obligations should be given effect in state’s legal system.
• Issue is whether a state’s domestic law will recognize international law’s
development of human rights obligations owed directly by corporations as applying
to harms caused by corporations and occurring within that state’s own territory.
• Common Law countries, e.g., Canada, India, etc., treaty obligations must be given
effect by legislation.
• Custom only part of local law when judiciary decides to enforce
• Civil law system’s sometime will accord status to treaties- sometimes above
constitution, sometimes statute.
• Principle of statutory interpretation: presumption that the legislature does not
intend to place the state in a position of breaching international law and the
associated judicial duty to strive to interpret legislation, without distorting it so
as to avoid an interpretation that would have this effect.
• Common law courts can conceivably develop the common law in line with treaty
principles [example of Keegstra reference to international human rights treaties- note:
this is my comment].
Section 5: Fields of International Law: Public and Private
36
• Relationship between public and private international law at the core any
•
•
•
•
•
development of corporate liability within one state’s legal system for human rights
violations that take place in another state’s territory.
Public international law regulation of non-state actors- where conduct of non-state
actors is directly regulated- e.g., ships or international organizations- generally
though regulation takes the form of regulation by states. UN Charter- rights to
individuals- expands scope of PIL. More state centered- duties with respect to rights
reside in the state- does not really govern relationship between private individuals.
Private International Law concerned with structure over substance: three main
questions: 1) when a P initiates a proceeding, does the court have the requisite
connections to the dispute for it to have jurisdiction to hear the case; should it decline
to hear forum non conveniens; 2) If assumes jurisdiction- which legal systems rules
will apply. 3) Do courts in other jurisdictions have to recognize or enforce judgments.
Mainstream understanding that national law creates the substantive rules and private
international law simply determines which national law will apply. Generally public
international law does not regulate what rules states will use for private international
law disputes.
What results, in effect, is law that is neither national nor international nor public
nor private at the same time as being both national and international, as well as
public and private.
Emerging international commercial arbitration that outflanks both domestic and
international dispute settlement through courts.
The Common Law as Transnational Law
Lee Kuan Yew v. Globe and Mail
Facts- PM of Singapore suing Globe and Mail as a result of article- Globe pleads
qualified privilege. Main issue of qualified privilege is whether the media can claim
timeliness or urgency.
Globe claims that statements made in good faith and that they are facts. Media has a
social and moral obligation to make information available to the public- urgency only one
factor to consider.
Qualified Privilege
Defence should not be struck out unless it meets the plain and obvious test.
Qualified privilege attaches to occasion when published not to words themselves. Legal,
social, moral duty to publish and corresponding interest or duty on part of person
receiving information.
Number of factors to consider: seriousness of allegation- nature of information- extent to
which subject matter is public concern- source of information- steps taken to verify
information- urgency.
Lee Kuan #2
Defendant sues P for abuse of process.
Says Lee has long history of suing critics for defamation-
37
Tort of Abuse of Process
1) collateral and improper purpose; 2) overt and definite threat, separate from
proceedings themselves.
Predominant purpose must be outside the ambit of the legal claim on which the Court is
asked to adjudicate.
Here predominant purpose is not to silence criticism of Nair but to silence freedom of
expression in Singapore and oppostion- further foster climate of fear and intimidation
Part 2 of the test- ongoing history of intimidation of Nair by Lee.
V.
Framework 5: The Interaction of Private Authority and Public
Legitimacy in Global Regulatory Processes and Networks
Theorizing Governance of Globalization.
A. Anne-Marie Slaughter, “Governing the Global Economy Through Government
Networks”
• How can states regulate an increasingly global economy? Threats to state
•
•
•
•
sovereignty: global financial flows, global corporations, global television, global
computing, and global transportation networks.
State not static- tied to territory;
State is defined not be the power to insulate, but by the power to participate- in
international institutions of all kinds.
Globalization- nationalizing international law and internationalizing national lawopportunities to participate expand exponentially.
Power shift within state not away from it.
• State as unitary actor- head of state as representative.
• Traditional international treaty making less relevant to the rules and institutions that
•
•
are generated outside any one national legal system but that directly regulate
individuals and groups in both their domestic and foreign interactions.
The reality is the disaggregated state plays a greater role – no longer just foreign
ministries but administrative agencies, courts, and legislatures.
Rise of government networks…new era of transgovernmental regulatory cooperation. More broadly still, the define transgovernmentalism as a distinctive
mode of global governance: horizontal rather than vertical, composed of
national government officials rather than international bureaucrats,
decentralized and informal rather than organized and rigid.
38
• Increased economic interdependence has forced economic regulators to work with
•
•
•
•
•
•
•
•
one another transnationally.
Government networks among financial regulators: central bankers, securities
regulators, insurance commissioners, and antitrust officials.
Transgovernmental regulatory organizations (TROs). Members are domestic
agencies. Minimum of physical and legal infrastructure. Nothing they do purports to
be legally binding.
Agreements between domestic regulatory agencies of two or more states:
Memoranda of Understanding (MOUs).
Advantages of government networks: fast, flexible, cheap and potentially more
effective, accountable, and inclusive than existing institutions. Try things out with a
number of small countries before go larger.
National officials- not international officials- people who negotiate have the power to
enforce
Accountability issue: offer access to many actors in rule making process [110].
Accountability: represents technocracy not democracy- Insulation of weaker nations
from decision making- imposition of policy by more powerful- penetrate the defences
of national sovereignty.
Networks suited to exercise of ‘soft-power’ form of influence and persuasion that
requires States genuinely to interact with and learn from each other in a nonheirarchical setting.
1. Agencies Across Borders: Transgovernmental Regulatory Organizations
• Key feature- government networks- interaction across borders of government
institutions with similar functions facing similar problems. More developed in
financial regulatory area.
1.1. The Basle Committee on Banking Supervision
• Central Bank Governors G-10. Bank for International Settlements- no constitution or
•
•
by-laws- operates without its own staff or facilities.
Banking supervision- makes ‘recommendations’ not binding but adopted by member
nations.
Agreements not binding – not treaty status- enforcement is informal. Based on
personal contacts- secretive.
1.2. The International Organisation of Securities Commissioners
• Organization of Securities Regulators- informal enforcement.
• Many resolutions have not been implemented- highlights lack of enforcement.
1.5 Common Features of Transgovernmental Regulatory Organizations
39
• Common features: informal charters and by-laws, flexible internal organization,
•
•
•
relative secrecy, status as ‘sub-state’ actors. Ad hoc creation, minimal structure and
staff.
Voluntary, non-legal, consensus, non-binding. Domestic actor implement- avoiding
the need for domestic legislation or ratification. No formal monitoring of compliance.
Nationalization of international law- enhance enforcement of national law by
coordinating efforts across borders or promulgating solutions to common problems.
The result is an international rule-making process that directly engages national
officials and national promulgation and enforcement mechanisms, without
formal translation and implementation mechanisms from the international to
the national.
3.
Regulating the Global Economy Through Government Networks: Implications
and Problems
• Horizontal rather than vertical; national officials instead of supranational
•
•
bureaucracy; equip state actors to interact with other actors at the supranational,
subnational, and regional levels, private actors like corporations or NGOs.
Problems- informal – don’t know who is making decisions- important decisions
happen in informal settings.
Three criticisms: lack of accountability; promotion of a minimalist and exclusionary
policy agenda; marginalization and displacement of traditional international
organizations.
3.1 A New Technocratic Elite
• Lack of legitimacy- informality and confidentiality- lack of transparency.
• Response- network initiatives are theoretically subject to normal political constraints
•
•
•
•
•
•
•
•
when introduced at domestic level.
Sharing information, talking shops, “soft power”.
Legitimacy may be conferred without direct accountability- e.g., courts, central
banks.
Insulated institutions benefits of expertise and stability
Accountable to what? Criticism of WTO, IMF, and World Bank.
NGO accountability – how was your contribution spent?
State – e.g., courts can monitor accountability
Legislative networks- links among national officials most directly responsible for
bureaucracy.
‘soft power’ over ‘hard power’ the power flowing from an ability to convince others
that they want what you want rather than an ability to compel them to forgo their
preferences by using either threats or rewards.
40
• An accountable government does not seek to constrain the sources of knowledge
brought to bear on a particular governance problem, but rather the ways in
which that knowledge is acted upon.
3.2. A Minimalist Global Agenda
• Argument that transgovernmental policy agenda does not address issues like global
•
•
•
poverty, malnutrition, human rights, refugees, persecution of minority groups,
desease.
Transgovernmental networks do not seek to displace the internationalist agenda
Frustration with international bureaucracy, doubt about value for money spent, neoliberal economics as a (dubious) domestic solution, crisis of welfare state, are the real
culprits.
These problems best addressed at the level of changing State preferences. National
officials must be motivated to find solutions to these issues.
3.3. Displacing International Institutions
• Members of networks select who gets in- insulating international community.
• Not fair to say that networks and international organizations work against each other•
•
•
•
•
can build hybrid forms of governance.
Choice of regulation through networks of international organizations
Outcome depends on relative merits – e.g., speed, flexibility, policy autonomy v.
universality, formality and deliberation.
Depends on which governance form is best suited to which governance functiondevelop a principle of global subsidiarity, designed to facilitate the allocation of
functions between international organizations and national officials operating
within government networks, or some combination of the two.
Threat to sovereignty- are these rules being imposed? Developing countries- latest
face of imperialism?
In many international issue areas, such as human rights or environmental
regulation, or even many types of financial regulation, the point is precisely to
penetrate national sovereignty. Charge of penetrating the face of national
sovereignty as likely to be praise as censure.
3.4 Advantages of Government Networks: Bringing the (Disaggregated) State Back
In.
• State actors are exercising their power by different means through different channels.
• Think about global policy issues in terms of networks of State actors that
compete with, complement, and even bridge the gap to networks of
supranational, subnational, and private actors opens the door to a host of new
ways in which State actors can address global problems.
41
• Pinochet arrest- example of impact of transnational judicial networks. Judges in each
•
•
4.
country have been reinforced in their interpretation of international and domestic law
by an awareness of their counterparts abroad, lending substance to the idea of a global
community of law.
Strengthen state institutions without labelling as ‘weak’, ‘failed’, ‘illiberal’ etc.,
participation based on competence not political system.
In contemporary international relations- sovereignty means membership in regimes
that make up the substance of international life.
Conclusion
• Government networks are the optimal form of organization for the Information Age.
• Networks less likely to displace international organizations than to infiltrate and
•
•
complement them; they will also be the ideal fora for pioneering initiatives among
smaller groups of states. In economic regulation- based on shared technical expertise
among regulators…
Important governance alternative.
Soft Power- persuasion- U.S. less likely to be able to use voting power [?]
B. Stepan Wood, “…Voluntary Environmental Standards, Public Law, and Private
Authority in Canada.”
Executive Summary
• Voluntary initiatives for corporate greening- environmental management system
•
•
•
(EMS) standards.
Implications for environment- and definition of “public” and “private”
An EMS is a set of internal policies and procedures that enables an organization to
identify and manage its environmental impacts. Most prominent is ISO 14000 series
developed by International Standard Organization (ISO).
View as “privatization” of environmental policy; however, this obscures role played
by public authorities (regulators, legislatures, courts, etc.) in the establishment,
shaping and operation of private authority.
• Canadian public authorities interactions eight categories:
1) Steering (influencing the development, use or content of voluntary initiatives
through policy pronouncements, participation in standards development, or
creation of legal ground rules.
2) Self-discipline- applying voluntary initiatives to government operations
3) Knowledge production- generating and disseminating ideas about value design
of initiatives
4) Reward- regulatory relief for adherence, financial incentives
5) Command- legally binding requirements to adhere to initiatives
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6) Benchmarking- use voluntary initiatives as benchmarks to determine legal
liability
7) Challenge- challenging firms to adhere
8) Borrowing- incorporating initiatives into legal instruments such as statutes and
regulations.
• Need to reconceptualize government moves beyond public-private divide- one that
•
•
•
defines government as the entire array of ideas, goals and techniques by which a
diversity of state and non-state authorities seek to shape human conduct to
desired ends.
Techniques of EMS and standardization deactivate the substantial political
stakes of corporate environmental management by treating them as “technical”
matters to be resolved by neutral professional expertise and simultaneously as
“private” matters of consumer or commercial preference to be resolved by the
market.
By transforming struggles over environmental harms, jobs, and profits into
matters of managerial expertise and market preference, these governmental
techniques disguise their own role in the creation and reproduction of social
power relations.
Wood argues that law might be used to resist this tendency to depoliticize
environmental politics.
EMS as Governmental Technologies
• EMS as technologies for governing human-environment interactions: collections of
•
•
•
•
•
•
•
•
•
standard procedures, routines, techniques and documents through which the
aspiration to manage the environmental impact or organizations’ activities, products
and services is rendered operable.
Treats problem of environmental degradation as question of managerial techniqueresolved by application of neutral technical expertise.
EMS standards are primarily a form of corporate self-regulation – development
dominated by business firms- content reflects the interests of increasingly mobile
capital in the global economy.
Issues they address
The acceptable environmental impacts of business:
The improvement of environmental performance: leave it to each organization to
determine whether, how, and at what rate to improve environmental performance
Question of how to manage risk of disaster: proper use of emergency planning- rather
than to question use of certain substances in first place
Role of public consultation and accountability- “stakeholder” management
Relationship between voluntary initiatives and state regulatory systems: address
external regulatory system through policy commitment to legal complianceVerification of environmental claims and performance: matter for objective, neutral
determination by independent commercial experts
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Bodies use to say that contributing to public policy goals like sustainable development- at
the same time remind others that EMS’s are really useful tools developed by business, for
business.
Transform political issues into technical matters to be handled by professionals
EMS modelled on business processes of large corporations.
Standardization as the housework of capitalismEMS and standardization represent a broader tendency in contemporary liberal
practices of government to depoliticize certain political stakes by positioning them
either as “technical” matters to be resolved by the application of neutral expertise
or “private” matters to be resolved by market forces.
Government regulators monitored by watchdog groups, judicial review, whereas
monitoring of EMS auditors is generally non-public achieved through accredation
processes of standardization bodies themselves.
“Regulatory capture” agencies serve business interests
Environmental Management Systems and the Shifting Rationales of Governance.
Extent to which blurring of public/private divide signals a shift in the rationales of
governance.
Story line developed by transnational coalition of corporate managers, industry groups,
management consultants, trade publications, standardization professionals, public
authorities, etc…not unified by particular strategy but by use of particular set of claims.
“managerialist” view of environmental degradation.
Don’t view environment as in crisis- only need to manage more efficiently.
Incorporate environment into corporate philosophy. Increase competitiveness through
energy savings and improve public image. Promote sustainable development. Viewed as
non political in contrast to organizations such as GreenPeace- “The political
rationality of EMS thus redefines the legitimate concerns of the state in a manner
that carves out a substantial chunk of environmental politics for organizations such
as business firms to resolve on their own through technocratic management and
private market signals.
Ecological modernization in 1970s as dominant way to view environmental problems in
AIC’s. The systemic harm from the modern industrial “risk” society, but one that can be
addressed through technocratic management. Environmental crisis no longer threat to
industrial society- industrial society has integrated environmental considerations.
Move from command and control to smart regulation. New regulatory strategies that
include state, market, public, and private actors.
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What role for law?
Two important characteristics of contemporary government: 1) government understood
as systemic attempts to direct human conduct to appropriate ends, is widely distributed
among public and private authorities in hybridized public-private space; 2) in any given
problem space unequal distribution of governmental authority tends to produce and
reproduce social relations of power and inequality.
Conclusions: some form of ‘smart regulation” relying on a mix of state and non-state
actors and regulatory tools is appropriate to deal with the distributed character of
government- key challenge will be to resist tendency to depoliticize.
Law could be used to prevent depoliticization of stakes- act as a “border guard” to
define and protect public stakes.
Use to require public consultation in EMS’s- monitoring and review of
environmental performance.
Claim and defend a broad space for democratic experimentation in the face of
homogenizing tendancies of global trade liberalization.
Stephan Wood
Nye- slaughterISO international organization for standardization Mandate to harmonize technical standards to facilitate global trade; promote
dissemination of knowledge and global cooperation
 Set voluntary standards to adopt as see fit
 E.g.’s thickness of credit cards; screw threads;
 Started out with quality management- general standard for managing quality products
or services.
 Early 90s- role of business in sustainable development- international companies to
green up image. New standards- ISO 14000 series- eco labelling to show products
environmentally friendly- life cycle analysis of products. System to manage quality
and environmental quality.
Larger context re globalization:
 “greening” of business; end of cold war; retreat of the state, apparent rise of private
authority in everyday life.
 Pervasive sense of crisis- sense of thorough transformation, immense change,
unprecedented in scale and rapidity. Death of sovereignty- state and interstate system
inherently limited in ability to govern. Good- if new forms of governance; bad b/c
state best way of controlling down side of globalization.
 Redefine problem- look at new ways of considering problem- problem is not the state.
 Focault- the problem is government in a broad way- not is it should be states or
private actors; actually look at how we are governed. Focus on ‘how’ questionsactually instruments and mechanism- mentalities, technologies of government.
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Result: way of thinking and acting that’s embodied in ISO standards does something
to politics- marginalize or exclude from the governance of globalization.
1) Setting up enviro management as a technical issue- most appropriately dealt with
through expert management; 2) positioning as a private matter best managed
through market transaction.
Make technical; privatize. 1) tie to welfare schemes- social insurance, etc.; 2) neoliberal, market driven way to allocate values.
Sheds new light on idea that state is dead- exposes myth of state as organizing
principle in life- governance accomplished by array of authorities and institutional
context- puzzle- why this mindset. Underlying continuities are very strong.
Tension between freedom/regulation- different balances for resolving this dilemma
Relationship with ISO:
 Federation of national standards bodies- a lot governmental, but AIC’s are private,
non-profit organzations; work decentralized- no real head office- standards
determined by technical committees. Voluntary system- industry reps ¾ people
involved- standards reflect needs of multinational corporations in world.
 Same problem has been around since emergence of modern nation-state- tension
between public/private.
 EMS remains effective way to manage environmental impacto Alternative model to limitation of govt. based model of
domestic/international regulation.
o Flexible, adaptable forum for industry to develop standards; also a
weakness because tends to be myopic.
C.
Liora Salter- The Standards Regime for Communication and Information
Technologies
Standards reflect acceptable design for consumer products. Some standards made into
regulations- enforcement by government agencies.
Nothwithstanding the role of governments in regulating some standards, standards
seem to reflect a classic case of a private governance regime, and of a regime
increasingly global in its scope and influence.
Even standards most commonly in view- pollution, pesticides, labour, and health- have
economic underpinnings. Overwhelming influence of industry in making standards
designed to protect human health, safety and the environment.
Technical standards, developed by industry, trade implications, important social
implications- erosion of cultural and national sovereignty in North-South relations.
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Existence of standards indicates that negotiation has occurred about the acceptable design
or performance characteristics of an industrial product, process, or byproduct of these.
Standards provide some stability to industry- off load some of the risks of production on
standard-setting bodies, insurance companies, and governments. Existence permits firms
to continue with activities that otherwise might attract lawsuits or public controversy.
Technical standards perpetuate North-South imbalance b/c developed by MNC’s with
other agendas in mind.
Firms pay huge amounts of money to participate in standardization regime, but often
cheaper not to comply. Why are they doing this?
State Involvement in the Standards RegimeGovernments involved in regulation of public interest (health safety, etc.) but often not
responsible for original decisions- come from voluntary standards.
US. American Conference of Government Industrial Hygienists- basis for most
regulatory standards.
Some government representation in ACGIH, but a private organization. This is typical.
Governments refer to ACGIH booklet, but only a guideline.
Industry supplies data for standards- sets agenda for when standards will or will not be
developed. Not a matter of capture- just the way the system works.
Standards regime also includes public bodies that are nongovernmental- nonprofit groups
with public mandate. ACGIH is a nonprofit group with a public mandate.
Standards Development v. Standards Enforcement
Regulations force of law- standards nonbinding- anomalous situation of people voting for
standards but not implemented.
Contracted standards with accredited standards organization- for a fee, firms have right to
use standard.
“Market” Standards v. Formal Standards
E.g., Windows- design products to meet specifications. Floppy disks also meet market
standard- not formal but practice of industry.
Proprietary standards- belong to particular firms, which restrict their use in order to
generate profit.
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Standards organizations trying to come develop proprietary standards for complex
technologies.
The Operation of the Formal Standards Organizations
Standards working groups are not disinterested- firms try to promote their own particular
solutions to technical problems. Top level of hierarchy, however, increasingly focused
on trying to influence government policy.
Voluntarism and Consensus in Standardization
B/c voluntary, if firms choose not to attend, can control whether standard gets set.
Summary
New technologies high up-front costs. Factor in litigation for product deficiencies.
Standards a strategy to reduce this risk. Represent agreements about the rules of the
game, acceptable levels of harm. Costs of standards, however, higher than can be
justified under sound business strategy.
The need for standardization is greater than the standards being produced.
Salter
What do we mean by governance? Where’s the ‘law’? Public v. private? Local/national?
International/ global democracy?/ legitimacy? Narrow gauge v. wide gauge- globalization
groups; broad social effects vs. narrow mandates.
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Consider other questions…
Salter says many standards come from occupational health and safety standards.
ACGIHTLV. List of voluntary standards for 800 contaminants that could be in the
workplace.
Government industrial hygenists- U.S. army- needs standards that ACGIH develops;
insurance industry.
Booklet of guidelines- no standing in law- even though used all time by governments.
These are just for information- can travel anywhere in world.
Minimum standard that industry could live with- all so openCodex alimentarius- sets standards on pesticide residue, potatotoes, onions and
carrots. Ships re-routed if pesticide levels too high.
Would not consider unless in international trade; would not consider unless industry
requested standard.
Codex is a more powerful influence than safety committee because what it has is the
clout of international trade.
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Developing world that were adopting codex standards as own, whereas U.S. adopting
standards as own. Big countries were not adopting standards. Codex standards lower
than U.S. standards.
Standards non-tariff barrier to trade- U.S. domestic producers produce own without
competition- ordinary farmer 3rd world, unlikely to be able to produce product with
low enough level of residue. Agribusiness able to produce to standard. Way of
privileging agribusiness in a way that domestic producers cannot meet.
Wired Communications
 TCPIC- communication between telecommunications systems.
 Collection of different organization all setting the same standards.
 Standards work together- each one has a slightly different composition of members.
 Standards bodies in competition between, amongst industries.
 Enormously expensive operation- normally takes about 10-15 years to develop
standard. Why? Even after time spent- no one adopts standard.
Questions listed- quintessentially ‘soft-law’- little use until someone adopts.
 Cannot separate public and private dimensions of International standards.
 Narrow gage- supposed to be focused on specific problems; however, huge impact on
nations.
 Where do competitors go to coordinate their efforts- e.g., IBM sits side by side with
Sun, level of coordination which occurs in non-event. OECD- talking club- reach
agreement re ideas without making decisions. Powerful companies shape the
discussion e.g., how governments ought to be responding to the standards.
 Q’s don’t respond for need for coordination within global structure- make
connections that make shared policy possible.
D. Marcus Franda, “the Emergence of an International Regime”.
International Regime Theory, “Soft Law,” and “Private Authority”
Definition of international regimes as “principles, norms, rules, and decisionmaking
procedures around which actor expectations converge in a given issue area.” E.g’s
balance of payments financing, regulation of trade, etc. Most of previous focus has been
on international organizations. In recent years, regime theory being used to understand
the relationship between formal and informal aspects of institutionalized interaction
between private and public international actors. In some cases where no one international
organization is predominant.
Issues areas can now be organized as private regimes or mixed public/private regimesprivate actors firms or NGO’s.
Interaction of negotiation between public and private authorities to create the rule of the
game.
Produces ‘soft law’, e.g., voluntary or formally nonbinding agreements to govern regime
activities or behaviour. Not enforced by state. Soft law includes- statements of principles,
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guidelines, understandings, model laws and codes, and declarations that…are neither
strictly binding norms of law, nor completely irrelevant political maxims operatin gin a a
grey zone between law and politics.
Private actors seeking to deal with market failure by concluding agreements independent
of government.
Enhanced influence of private actors corresponds with current domestic changes- large
scale privatization, delegation of regulation to industry associations, reliance on market
forces- this increases influence of private actors.
The Internet as a Decentralized Global Network
Internet regime- broad rules of governance of internet- but no central governing authority
and the principles, norms, rules, and decision-making procedures evolve from interaction
of private and public actors.
Protocols, conventions, for transferring information.
System with one fundamental property- had to be decentralized.
Internet a challenge for governments, business leaders, lawyers and judges, police and
military- anyone dependant on the rule of law and authority structures in modern society.
Previous rules and legal structures not prepared for the pace of the internet.
Operating the Global Internet’s Infrastructure
Move from relatively free to being increasingly controlled public institution, governed by
evolving set of rules and laws. Reconciliation of interests between ISP’s and groups of
ISP’s.
US government controlled domain names until 1999, when handed over the Internet
Corporation for Assigned Names and Numbers (ICANN).
Board members to ICANN elected over internet. Supporting Organizations pp 8-9. Other
players are World IP Organization, WTO.
Internet Engineering Task Force – to develop standards. Hard to reach consensus;
“vendor-driven” standards organizations also working to set standards.
ISO plays a role too. Concept of Wintelism- derived from Wintel- (Windows + Intel)
coalition representing the combined power of Microsoft’s operating systems and Intel’s
microprocessors in setting the architectural standards for personal computers. B/c of
market power Wintel has structural power to determine the international rule of the game:
(1) control over technical standards; (2) rapid and constant innovations that give Wintel
the edge in competition, and (3) assiduous intellectual property protection.
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Structural power…confers power to decide how things shall be done, the power to
shape frameworks within which states relate to each other, relate to people, or relate
to corporate enterprises…Whoever is able to develop or acquire and to deny the
access of others to a kind of knowledge respected and sought by others; and
whoever can control the channels by which it is communicated to those given access
to it, will exercise a very special kind of structural power…today the knowledge
most sought after the acquisition of relational power and to reinforce other kinds of
structural power (i.e., in security matters, in production and in finance) is
technology.
Trademarks
WIPO major accomplishment in the trademark area has been the establishment of a soft
law procedure for settling disputes over domain names. Designed to arbitrate settlements
out of court, without the major expenses incurred in lawsuits.
Domain names in internet were given to almost anyone for the payment of a small fee. In
contrast to normal trademark law where more than one can have same name and have to
wait a year for approval.
Cybersquatters have been challenged in national courts under traditional trademark law
principles of dilution, infringement, and unfair competition. Results inconclusive.
Prior to UDRP mechanism- trademark owners had access to procedure that allowed them
to put a trademark “on hold” (1) only applied to case where prior registration of
trademark, i.e., did not apply to cases where rights acquired from common law through
extended use; (2) requires that trademarks and domain names be an exact match; (3)
Could only stop use of trademark but not transfer back.
1. process is mandatory have to submit to arbitrator; 2) complaints now can be more
inclusive and specific – both registered and common law trademarks, and must allege that
(1) identical or confusingly similar; 2) registrant no rights or legitimate interest; 3)
registrant registered in bad faith.
3. Both parties can go to court later if unsatisfied with result.
4. Judgments only on basis of genuine cases of cybersquatting.
Widespread use of this system. Most of world’s trading nations have not yet been able to
enact national legislation specifically protecting trademarks in cyberspace. Until
legislation may be only mechanism to enforce trademark rights.
1999 U.S. anticybersquatting legislation- some argue that just passed so would not have
to pass authority to an international tribunal. Possibility of financial penalties for those
who want to litigate instead of arbitrate.
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VI.
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•
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•
Concrete A: Contracting Globalization: Law and the Legal Profession in
Global Commerce
A.
M. Sornarajah, “The Myth of International Contract Law”
View that contracts between state and foreign corporation for the exploitation of
mineral resources are governed by public international law. Such K’s cannot be
unilaterally altered by legislation b/c breach of K and violation of international law. If
foreign state nationalizes corporation’s property, then, they would have the right to
claim restitution or compensation.
Capital export countries built up “an international contract law”- first postulate is the
sanctity and immutability of the terms of contract. Protects firms engaged in
exploitation of natural resources, but also assures of a continuous flow of raw
materials.
“internationalization” of such contracts is aimed at developing countries- once right
of exploitation has been signed off to foreign corporations- state would not longer be
able to rely on resources to achieve developmental goals. Claim that K’s cannot be
changed unilaterally represents norms of international law developed through colonial
times.
Developing countries argue that domestic law should control exploitation of natural
resources; capital exporting nations argue that international law permits restitution for
breach of K.
Conflict should be resolved in light of policy objectives of international communitysupranational system of law governing K between host state and corporation does not
have a firm basis in jurisitic principle. Conclusion: stop adhering to myth of
“international K law” and that it would be preferable to accept the claim that
national laws alone control foreign investment. Claims of 3rd world are based on
notion of justice- rules may evolve to ensure that foreign investor does not suffer
a loss.
The Construction of an “International Law of Contract”
•
•
Idea develops after WWII- impediments 1) positivist conception says international
law is an inter-state system; therefore, irrelevant to regulation of K between
corporation and state; 2) No existing law; 3) no law could be created by custom b/c
3rd world nations subscribe to principle of economic self determination and
sovereignty over own resources. Any law created would depend on ‘general
principles’, which are at best a weak source of law.
“international K law” are rules designed to protect interests of capital exporting
countries.
(a) The Claim that the Principle, Pacta Sunt Servanda, Applies to State Contracts with
Aliens
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•
•
•
Extreme claim- principle pacta sunt servanda, which requires states to fulfil treaty
obligations they had undertaken, is a fundamental principle applicable not only to
treaties between states but also to an agreement between a state and a foreign
national.
Elevation of multinational to status of sovereign state
However, if this is so then clausula rebus sic stantibus, which permits a party to alter
agreement b/c of changed circumstances should apply- e.g., state argues K is invalid
b/c developmental goals have changed.
(b) Claim that International Law or Transnational Law Applies to State Contracts with
Aliens.
• Claim by capital exporting countries that such K’s should be recognized b/c part of
“general principles of law recognized by civilized nations.”
• Principle of private international law that the parties to the K can agree on what the
proper law of K is; next step is that if international law is chosen, either expressly or
implicitly, then the K becomes “internationalized.”
• View that international K law should apply where state does not have a sufficiently
mature legal system; however, now every developing country has some form of
investment, so relevance of this view is diminished- inferred that were national laws
exist, then they would govern.
• Sapphire Petroleum Arbitration- foreign companies undergo considerable riskinterest of both parties that disputes should be resolved by universally recognized
general principles- national laws often unsuitable and subject to change.
• This approach emphasizes protection of foreign investor- assumes actions are for
benefit of host country.
• Façade of neutral system, culled from general principles- and that not governed by
public international law, which is creature of capital exporting nations. Preferred
terminology is transnational law, which is effectively a synonym for public
international law.
• Acquired rights considered general principle of law. Once a company acquires rights
they are entitled to compensation b/c of the inviolability the law of contracts and
property interests.
• Argues that acquired rights can be terminated: what about an alien who has rights to
live in state, but state subsequently revokes rights b/c deemed in best interest of state;
why isn’t this analogous to a company that’s not operating in the best interest of a
state?
• If general principles form “international K law” why can’t use principles to get out of
agreements when unfair?
• In Europe state has right to modify K b/c cannot act to detriment of public interestK’s also changed b/c inequitable to weaker parties- consumer protection, race
relations…
(c) Claim based on human rights
• International human rights law recognizes right to property; however, this is a weak
claim for corporations b/c rational for this provision is to protect the weak,
disadvantaged.
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B.
Schneiderman, “NAFTA’s Takings Rule: American
Constitutionalism”
Section III.
NAFTA instutionalizes fear that well-situated groups will use the resources of the state to
extract concessions favourable to their own interests, at the expense of the larger public
interest.
Limitations on ability of political communities to regulate the economy are justified by
reference to what public choice theorists call the practice of “rent-seeking”. Idea that
individual groups can influence public policy in order to gain personal advantage at the
expense of others. Lobbyists redress grievances AND go for partisan advantage.
Rent-seeking can be frustrated by the principle of national treatment – main organizing
principle for NAFTA. Principle requires that each party to the agreement refrain
from using legislative power to discriminate, either intentionally or unintentionally,
against the nationals of the other parties.
Lipsey argues no discrimination b/c can do whatever we want so long as apply equally to
both parties. Says Canada can nationalize industries.
Schneiderman says analysis faulty in terms of nationalization. NAFTA chapter on
investment forbids the parties to ‘directly or indirectly’ nationalize or expropriate
investments in which investors resident in the other party states have an interest or take
measures ‘tantamount to’ nationalization or expropriation.’ Definition of investment is
expansive: includes almost any form of business interest, including interests arising from
securities held in, loans made to, or anticipated K’s arising from, and investor’s enterprise.
For a taking to qualify under NAFTA, it must be:
1)
2)
3)
4)
for a public purpose;
of a non-discriminatory basis;
in accordance with due process of law and Article 1105(1); and
on payment of compensation in accordance with paragraphs 2 through 6.
Paragraphs 2-6 require that compensation be equivalent to fair market value and
that it be ‘paid without delay’ and be ‘fully realizable’ and transferable.
Exceptional remedy for private investors- should a party breach these investment rules,
an investor resident in one of the other party-states, rather than simply the party-state
itself, can seek to enforce NAFTA obligations before an arbitration tribunal.
Tribunals decisions are ‘binding’ and parties are obliged to ensure that these awards are
enforceable within their territories. Federal and provincial laws provide for the
enforcement of such international arbitration awards before domestic courts. NAFTA
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provisions which benefit the rights of investors ultimately, then, are enforceable
within domestic courts of law and are binding in the same way as are other
constitutional commitments.
NAFTA characteristics similar to constitutions: (1) NAFTA is a form of “pre-commitment
strategy” whereby present generations disable future generations from pursuing certain
legislative goals- subjects are removed effectively from the legislative agenda; (2) it is not
easily amended because its effects are not easily reversed; (3) it is binding politically and
in some cases juridically.
Takings provision of NAFTA draws directly on US constitution, specifically 5th
amendment law of takings and the 14th amendment law of due process.
Public international law, through bilateral and regional treaties has required that some or
all conditions of NAFTA be met. US is promoting the strict application of NAFTA –type
principles.
Section IV
Extent to which the due process requirement in article 1110(a) of NAFTA will be
confined to procedural issues is uncertain. Schneiderman notes that SCC has added
‘fundamental justice’ to s. 7- means that s. 7 values not just confined to procedural justice.
Says this allows court to review the substance of legislation under review.
Canadian law also requires compensation. Common law view in takings law of a Paretotype outcome- owner of property must not be left in no worse a position as before.
Principle of just compensation for the taking of property. Statutory interpretation of
legislation that interferes with property rights is strict interpretation- construe ambiguities
in favour of owner.
Common law presumption that legislatures must make intention to take property clear;
however, a presumption not a prohibition b/c can be overridden when intent is clear.
Contrast with U.S. 5th amendment, which only applies if for public purpose and just
compensation provided.
Manitoba fisheries case- federal government prohibited Manitoba from being fish
exporter- all had to go through Crown corporation. Statute did not require compensation;
however, the court ‘read’ it in to the statute. National Library Act expressly says that no
compensation will be paid (523).
V.
Tobacco Products Control Act- limitations on advertising- health warnings.
Plain packaging to fight advertising by virtue of personal possession alone.
55
US tobacco- RJR Reynolds displeased with plain packaging act- said violated NAFTA.
Cited expropriation provisions of NAFTA- characterized legislation as being an
unjustified taking of valuable trademarks and related investments in Canada.
Companies argued that plain packaging amounts to a taking of their trademark, which
falls within NAFTA’s definition of investment: “real estate or other property, tangible or
intangible, acquired in the expectation or used for the purpose of economic benefit or
other business purposes.”
Acknowledged that expropriation provisions are qualified- do not extent to intellectual
property s. 17. Under 1708 provides that “a party may not encumber the use of trademark
in commerce by special requirements such as use that reduces a trademark’s function as
an indication of source.” No exception for health measures.
Response from Jean-Gabriel Castel of Osgoode- international law conduces confiscation
without compensation for products harmful to health. Issue here not protection of
intellectual property but regulation of harmful product. Did not violate s. 17 b/c trademark
not encumbered- could print name on package.
Read health exception into chapters 17 an 11- NAFTA not intended to give parties
absolute rights at the expense of a populations health and safety.
If Chapter 11 in conflict with another provision- then other chapter shall prevail.
Schneiderman sees some weaknesses with this- too narrow a reading of s. 11 and
limitation of s. 17. Section 17(1) prohibits reduction of function of trademark as
indication; (2) permit limitations if fair and take account legitimate interests of trademark
owner. Plain packaging clearly an encumbrance.
1112(1) inconsistency – is there an inconsistency- in NAFTA a clear distinction between
expropriations and regulations concerning trade in goods.
U.S. tension between takings and state regulation- in takings expectation that for a public
purpose and just compensation be given; state regulation e.g., nuisance…(529).
Castel argues for police-powers-type exception, while Hills argues for strict construction
of NAFTA takings rule with narrow police-powers-type exception.
One argument is that international law principles- which permit confiscation of products
harmful to health- should be imported into the expropriation provision which says that
“each Party shall accord to investments of investors of another Party treatment in
accordance with international law.” However, not just this but 3 other criteria that have
to be met as well.
Castel also categorical argument- regulations that fall within scope of police powers are
not takings within the definition of NAFTA. Falls into US constitutional viewproblematic b/c of requirement of precise legislative objective and regulatory means to
achieve objective.
56
Significantly, international law has not traditionally required a strict standard of proof- if
prohibition concerning the use of property “can be justified as being reasonably
necessary to the performance by a State of its recognized obligations to protect the
public health, safety, morals or welfare, then it would normally seem that there has
been no “taking” of property. See EC Court of Justice view towards high alcohol
advertising.
Candian view of RJR- Mclachlin- courts have a range of acceptable alternatives- more
flexibility with respect to partial prohibition; however, stricter scrutiny when complete
prohibition is involved (viz. free speech).
VI
NAFTA incorporates into Canadian law standards and principles drawn from American
constitutional law. Canadian constitutionalism altered. Constitutional design re energetic
federalism altered- used to be federal/provincial conflict- now will question whether they
can enact legislation at all.
In Charter did not entrench property rights- this has now been effectively done by NAFTA
without public debate.
In hands of arbitration panels- ability of Canadian laws to regulate may be affected.
Conditioning framework- which does by the back door that which could not have
been done through the front. Internalize values- domestic actors guide the process of
implementation.
Footnotes- (513) Can you make arbitration panels more representative, i.e., not just trade
experts- Hegemonic nature of international trade law seems to go against.
Schniederman- property rights- constitutional perspective- ‘pure economic’ rights are
rejected- international trade lawyers say few cases claiming expropriation of investment
interests- few decided cases to look to- unknown how many threatened suits- to what
extent is NAFTA constraining state capacity re labour, environment, health, etc.
• Regime incorporates into Canadian legal order through transnational legal system
values associated with U.S. consitutional law put much broader. NAFTA’s chapter 11
much broader constraining state capacity than what’s in U.S. (takings rule).
• Full and just compensation borne out in the cases- conceptual serverance- taking
strand out of bundle of property rights- treat as whole- demand compensation. Pope
and Talbot seeking market access entitled to lay claim under chapter 11. Potentially
could have led to a finding of expropriation• Look to US constitutional law to distinguish between compensation (taking) and no.
What’s difference- when measure goes to far- not clear rule. Even non-discriminatory
exercises of the policy power can give rise to compensation- however, in normal
course police action should not give rise to compensation- International trade lawyers
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don’t know US constitutional law that well. Consitutional norms incorporated into
NAFTA- registered into local systems as if product of system.
Meadowclad- against Mexico- local municipality refused to grant a permit- tribunalmunicipality had not constitutional authority to refuse to grant this permit- panel
refuses to accept evidence of Mexican government re constitutional government
accepted the evidence of Metalclad re constitution. Arrogant to make decision
contrary to Mexican government.
NAFTA chapter 11 stock of arguments by anti-globalization movement- NAFTA
panels concerned about these arguments- SD Myers- separate opinion- Canadian
lawyer concern with the scope of takings ruleTaking rule goes much further than US constitutional law doesUS has modified investment rules so that foreign investors do not have greater
rights.(?)
C.
The Role of Global Law Firms in Constructing or Obstructing a
Transnational Regime of Labour Law.
The Legal Culture of Global Business Transactions
•
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Affect of globalization, neo-liberal policies and revolution in production,
transportation and information technology.
Hard to find single, unified, legal culture: legal pluralism shows us that even domestic
legal systems encompass a multiplicity of state and non-state legal fields, each with
its own norms, institutions, processes and cultures, and that we ought to focus on
internormativiey rather than assume coherence.
The Legal Culture of Transnational Labour an Employment Reltions
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Legal regimes- regulations of WTO, International Bank, constitutional protocols of
the EU and NAFTA- arbitral jurisprudence- law firms played a role in creation of
these regimes but not labour law.
Labour relations law remains local in character
Issue labour important to production- view of international labour solidarity- what’s
going on?
ILO has not managed to construct an effective juridicial regime of employment law
or industrial relations.
Not sovereignty- countless ways that nations harmonize laws to be in line with
hegemon- acquiese to creations of legal regimes by various non-state- transnational
actors.
Generated by standards organizations- law firms- NGO’s- social movements
New lex mercatoria governs international business transactions; similar in human
rights- but not labour law.
Many states are competitive because of lower labour standards- international
standards would force to revise upwards thereby losing comparative advantage.
TNC’s don’t want a new international labour regime. Prefer to shop around
labour regimes- only resort to transnational norms when public pressure.
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Lawyers no incentive to create non-state transnational regime
The Role of Lawyers In Labour Law
• Social fields and their normative systems are to a large extent constituted by cooperation and competition among strategically-located actors. Labour lawyersarticulate relationship between global and local economy, national legal system and
substate normative systems (63).
• Domestically, labour lawyers work with the “raw material” of law to persuade courts
towards developing doctrines in favour of their clients
• Post war – collective bargainingLabour Lawyers in the Global Economy: an Empirical Study
The Lawyers
• In Arthur’s study- none of the lawyers felt that a new lex labouris in the making. All
say that domestic law- not transnational norms- govern the labour and employment
relations in his or her country.
• Why labour law no transnational dimension- reciprocity the paradigm around which
commercial relations are organized- unequal power characteristics between employer
and employed. Labour disputes within firms. Powerful corporations financial
resources to use state labour law or to change- employment norms- derived from
state power, defined by K, embedded in custom, mutable in practice- tend to be
firm-specific, even workplace-specific.
Influence of Transnational Professional Contacts and Culture
•
Most lawyers surveyed say no foreign influence- some Canadians borrow from
transnational legal field specific doctrines, or strategies. Mexican and European focus
on how they can accommodate the US.
The Direct Application of International Legal Norms
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View that ILO insignificant- national norms take priority. None acknowledged having
come into contact with non-binding codes of conduct for MNC’s operating
abroad, which have been promulgated by OECD, ILO, and EU.
NAFTA NA Agreement of Labour Cooperation- view complaints as politics by
other means. To the extent that NAFTA restructures national economy- affects labour
relations.
The Indirect Influence of Transnational Legal Norms
•
Most countries will commit (but not always adhere) to minimum standards- right to
organize- exploitation of vulnerable workers. Public policy debates might sometimes
reference international norms but not really significant.
The Influence of TNC’s.
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One whole seems that TNC’s, which usually think globally- act locally when deal
with workers. Contradiction – silent when labour standards lower- when higher say
they have to make their standards competitive.
US firms often surprised when find out of Canadian job-security and employment
benefits
Local compliance rule- global regime exception- sometimes comply to ensure merger
goes through
Sometimes within firm want advice re policies- sexual harassment- negative reason.
Draft codes of practice for organization- lawyers from different offices coordinate.
TNC’s view themselves as authors of their own employment law
Other Influences
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NGO’s little to show for campaign in favour of global labour standards
UN covenants and ILO conventions binding in international law but only states have
ratified, not employers
Nonbinding codes of conduct- but no enforcement procedures
Voluntary standards don’t seem to influence day to day operations and administration
of human resources or industrial relations policies
Conclusion:
• To extent transnational regimes of labour law exist- it’s corporations rather than
lawyers that create- lawyers seem to mediate between practices of clients and
domestic legal system.
The Effects of Globalization on National Labour Law
The Dominant Influence on Labour Law of National Politics, Industrial Relations
and Legal Culture
•
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Belief that national legal system can stand in way of importation of foreign law
Arthurs says that national labour systems are changing
Globalization and the Legal Culture of Industrial Relations
• Union power down- weaker statutory regime of collective bargaining
• All seem to be heading towards deregulated labour markets, disempowered unions,
insecure job tenure and flexible, non-standard terms of employment.
• Lawyers don’t have a major role in new laws of work- new workplace norms not the
result of changes in international standards- may originate in HR policiesexperienced by workers in after-shock of corporate pricing (69). States may regulate
less- discipline workers.
The Effect of Globalization on Labour Lawyers
The Moral Economy of Normative Mediation
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Lawyers mediate between client and state law- state law and non-state normative
systems- contribute to cross-pollination of normative systems- use exposures to HR
policies to transmit innovations and best-practices- create new workplace regimes.
Harmonize state law within trade blocks or promote adoption of explicit international
norms, e.g., ILO.
Sometimes “mediation” involves active lobbying on behalf of TNC’s to change
domestic law. Some lawyers held finesse policies so meet the letter if not the spirit of
the local law.
Raises ethical issues
Labour Lawyers in the Political Economy of the Legal Profession
• Traditional labour law no longer in demand
• Marginal role of labour practice reinforces view not part of making new lex laboris.
Conclusion
• “globalization of the mind” the embrace by strategic, knowledge-based elites in
business, government, the professions, academe, and the media of a new set of
values, processes, institutions and practices, of a new paradigm of governance.
• Lawyers not the primary role here but TNC’s- might help to make law conform to
new realities of global economy.
D.
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A Bitter Taste: Struggling for Just the Minimum
Guatemalan coffee unions
Death threats- intimidation by owners
Making less than minimum wage- have to fight to get minimum standard
Owner doesn’t let union children go to school
Owner fires workers- Union goes to court- wins reinstatement for fired workers- but
cannot enforce.
Warrant for owner’s arrest goes unenforced
No strikes allowed during harvest season
Can’t unionize until worker for 3 months- also benefits- most employers don’t
employ for more than 90 days.
E.
Starbucks
Starbucks defines sustainability as an economically viable model that addresses the
social and environmental needs of all the participants in the coffee supply chain from
producer to consumer
Intention to provide financial incentives that will promote a healthier industry
Starbucks Green Coffee Purchasing Program- Pilot Program for Preferred
Suppliers
•
Preferred Supplier program based on points-
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Environmental Impacts: (5 points) Soil management; water reduction; clean water;
water buffer zone; forest and biodiversity conservation; energy use; waste
mangement.
Coffee production should contribute to conservation of soil, water and biological
diversity; employ efficient and renewable energy technologies; minimize or eliminat
agrochemical inputs; reduce, reuse and recycle.
Social Conditions (30 points): wages and benefits; health and safety, living
conditions.
Ensure protection from workplace hazards and conform to local laws as well as
applicable international conventions related to employee wages and benefits,
occupational health and safety, and labour and human rights.
Economic Issues (20 points): transparency from supplier to farm level.
Should benefit local communities- expand employment and educational
opportunities, enhance local infrastructure and public services.
Pricing premium for coffee that meets criteria
•
Enforce through 3rd party verification- independent audits- no conflict of interest.
•
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VII.
Concrete B: Property Law, Heath, and Global Governance
Health Property and Civil Rights
A.
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Richard Elliot, Marie-Helene Bonin, Patents, International Trade
Law and Access to Essential Medicines
A patent is an “intellectual property right” in an invention. IPRs are rights given to a
person or a corporation over such creations as author’s copyright, companies
trademark, or a patent on a technological innovation. Patent gives owner right to
prevent others from using for e.g., 20 years.
Product or process 1) must be something new; 2) not obvious, i.e., involves some
kind of “inventive step”, 3) must be usable.
Patented drug marketed under brand name; generic does same thing- usually
marketed after patent expiry
TRIPS- Agreement on Trade-Related Aspects of Intellectual Property Rightsadministered by WTO- rules for IP that countries belonging to WTO must reflect in
their domestic laws.
Before trips some countries just patent on process so possible to get generics by
different process.
Exclusive Patent Rights under TRIPS includes product and processs
Minimum 20-year patent term- monopoly- higher prices
‘non-discrimination’ don’t discriminate between foreign and domestic
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If non-compliance- can take complaint to WTO- “recommendations” to change law
or policy- if no change can provide “satisfactory compensation”. Trade sanctions
possible penalty.
TRIPS & HEALTH
• Agreement says that monopoly rights created by patents need to be balanced against
other important interests.
• In shaping own laws countries allowed to take measures to protect public health; also
recognizes that countries may have to take steps to prevent “abuse” of patent-rights by
patent holders.
• Authors say that these provisions support argument that countries can be flexible in
how they protect patent rights
Does TRIPs leave options for increasing access to affordable medicines?
•
•
WTO ministerial conference in Doha- Declaration on the TRIPS Agreement and
Public Health- Nov. 2001- TRIPS should be interpreted in way to allow countries to
protect public health and promote access to medicines.
Advocacy still needed to ensure maximum flexibility in interpretation- amendments
can take years, however.
Options under TRIPs
• Exclusions from patent admissibility- can refuse to allow patent if important to
protect human life- unclear how will be implemented
• Exceptions to patent rights- Article 30 “limited exceptions” to patent laws to allow
others to produce as long as exceptions do not “unreasonably conflict with the normal
exploitation” and may not “unreasonably prejudice” the patent owner’s legitimate
interests. Generic Medicines case in Canada- bad precedent
• Parallel Importing- if limited resources, save money by importing from abroad.
Patent holders rights are “exhausted” once sells product.
• Compulsory Licensing- licence that permits government or specified individual to
make drug without authorization of patent owner. General interest- public health,
national defence. Should try to negotiate with P holder- but not in time of emergency
• Pay “adequate” remuneration
• Only in country where licence granted- barrier to LDC’s that can’t make
• International HR say that access to Aids drugs right to health
• Africa 1% of pharma profits- limiting patent rights will have no effect on profitability
• Most patent-holders in AIC’s reach a certain level of development and create lawsunfair to impose laws, i.e., compulsory licensing on countries that are at a lower level
of developoment.
• India domestic R and D focused now on Western drugs b/c of profit
What can be done• TRIPs an ambiguous document- unclear on how to interpret- have to advocate
DOHA
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Uphold international obligation to provide health care- will see if makes big pharma
back off from threatening trade sanctions.
Sees a big problem that LDC generic drug makers can not have compulsory licencing
after 2005 for export- predominantly for domestic market.
Developed lobbying for restrictions- violates spirit of TRIPS
NotesWTO decision making concentrated in the “Quad” (US, EU, Japan, and Canada).
Generic Medicines Case
• Candian law that allows generic companies to stockpile drugs for last 6 months prior
to patent expiry
• Canada says public interest in access to affordable drugs- EU says discrimination
• WTO takes narrow view- only sees private patent expectations to profit and not wider
public interest
Universal Declaration of Human Rights- Everyone has the right to a standard of living
adequate for the health and well-being of himself and his family, including…medical care.
Some Regional agreements like FTAA (of the Americas) are looking have stronger patent
rights and to prevent public interest balancing.
B.
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Joseph, Pharmaceutical Corporations and Access to Drugs
Increasing alarm over power of corporations in new global economy
Four Waves- 1) Nader consumer rights; 2) Exploration and extraction- Shell in
Nigeria- environmental degredation and collusion with corrupt regimes; 3) unsafe
working conditions in LDC’s; 4) against pharmaceutical industry. Public relations
disaster of Big Pharma suing Nelson Mandela.
Access to Drugs- the HIV/AIDs Example
• ARV drugs effective but unavailable in developing world where most new infections.
• AIDs wipes out productive generation- contributes to increasing degree of poverty
• AVR 10-15 thousand per year- price determined by Big Pharma
Patent Protection and TRIPS (Trade Related Intellectual Property Rights)
• Patents for 20 year- ‘Cartelisation’ of major players
• Compulsory licence, usually need to try to get voluntary license and far remunerationbut can be waived in times of national emergency.
• Balancing of public interest and rights of patent holder- Doha consensus statement
• India previously refused to have patent laws but now changing b/c of complaints from
EU and US
Arguments in Favour of Patents
• Patents compromise right to life why allowed?
• Reward creativity and innovation- rewards for endeavours
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Argued that money from patents funds R and DUnfair to have pirated copies sold
Global intellectual property regimes should encourage greater technology transfer
between countries- translates into more investment and development.
Does Big Pharma Have to Charge so Much?
• BP spends 2-3 times as much on marketing as R and D.
• Marketing techniques- encourage overprescription.
• A lot of public funds to perform initial research- R and D doesn’t always take into
account generous tax deductions.
Challenges to Big Pharma
The Generic Threat
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Threat to profits- even though Africa 1% concern that generics from India could make
their way back into West.
Argue that if consumption regime not followed more increased strains of HIV will
develop
What about the West’s oveprescription and super bug issue
Brazilian Success Story
• Brazil free Aids drugs to all who need under a compulsory license
• Death rate down by 50%- infection rate down b/c lower viral load- costs to
government have been almost offset by savings in hospitalization rates
• Brazilians are adhering to regime as much as Westerners
• US complaint under TRIPS!!!
The South African Medicines Act case
• US sanctions re Medicines and Related Substances Control Amendment Act
• Big P suit against government.
• Act facilitates 1) parallel import; 2) compels pharmacists to dispense cheaper version
where available; 3) transparent pricing system- force Big P to justify prices.
• Note Act does not increase ability to grant compulsory licences or allow import of
generic versions (18)
• Big P suit that Act is unconstitutional –deprive of right to property
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•
Note that TRIPS permits parallel importation- Counterargument that government
protecting health of citizens
Substantial possibility that Big P would have lost on the merits
Suit withdrawn after public protest, possibility that courts would require to disclose
profits
Recent Triumphs in the Global Battle for Access to Drugs
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2000- a number of Big P co’s discount drugs to poor countries- condition no
compulsory licensing- still cost more than generic
US drops WTO complaint v. Brazil and S.A. and Thailand
WTO discussion re differential pricing- but still concern over parallel importing
Blatant hypocrisy in face of Anthrax- U.S. and Canada demanding that Bayer discount
rate or will consider compulsory licensing.
Doha declaration- interpreted to promote public health and to promote access for
medicines to all. Right of each member to grant compulsory licenses. Public health
crises such as AIDs, TB, and malaria- considered emergencies.
Hopeful that Doha will reduce litigation/disputes- address the public health issues
Aids in the Developing World: Continuing Problems
• Drugs just one aspect- governments must play a greater role too – education programs,
resources, etc. Debt relief- foreign aid.
Concluding Comments: A Re-Examination of Pharmaceutical Patents
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Consider nature of the drug- are patents- temporary rights of private ownershipjustifiable?
Breach of human rights? Does right to property outweigh right to life and health?
Patents focus research on profitable drugs
Don’t research 3rd world diseases like malaria, TB
Instead of patents- why not royalties from competitors?
Reduce patents- government pays less to Big P (government significant purchaser of
patented drugs for healthcare) and use this for R and D.
Would have to revise TRIPS to remove patents but “a reevaluation of the notion of
profit and ownership in crucial areas such as access to health-restoring drugs may help
to close the yawning gap between rich and poor in this world, which is generating
misery, instability…
C.
Kasper, “South Africa’s Victory”
6 weeks 1998- 300, 000 people sign petition calling for companies to drop case; EU
Parliament resolution urging the companies to drop the case
J. allows Aids organization in as friend of court to present on human suffering
SA government still reluctant- strong government leadership as well as flexible IP
rights systems are needed to combat HIV
Growing popular movement to defend rights in developing countries- governments
can protect sovereignty- stand up.
Kenyan government resists Big P’s efforts to influence its IP rights bill
US drops suit against Brazil for law that requires patent holder to produce locallyencourage local pharma production
Struggle between Big P and LDC’s on interpretation of TRIPS.
At WTO negotiations promise to LDC’s that if include IP will promote FDI in their
countries and focus R and D on diseases prevalent in other countries.
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D.
Passarelli- “Brazil’s Multifront Wa on Aids”
ARV’s reduce viral load and thus minimizes possibility of infection
Reduce death and hospitalization and allow many to go back to work
Government makes available- produce some AVR locally- fight legal challenges from
US and Big P- pressure Big P to set reasonable prices- ACTIVE GOVERNMENT
ROLE
Information by NGOs
Brazilian constitution establishes health as a universal rights to be guaranteed by
a National Health System based on the principles of comprehensive service,
universal access and social control. In HIV context- distribute drugs to all with HIV.
Government defends right to pass patent laws to protect national interest
2000 US complaint that Brazil’s patent policy violates GATT IP provisions
Brazil says real target is Brazilian production of pharmaceuticals.
Conflict between neoliberal principles and state intervention- neoliberal would have
market as a regulatory force and protect IP rights over right to public access to
medicines.
World Bank says that more fiscally viable to focus on prevention than drug provision
Brazil could only do by nationally producing generic drugs b/c would not be able to
afford otherwise
Brazilian patent law –if company does not produce within 3 years then can authorize
compulsory licensing and parallel imports
Use the above as leverage to negotiate fairer prices with Big P.
Debate over IP laws and role in international trade agreementsDeveloped countries want to protect their technology
Possibility of competition with developed nations never very great; however, patents
limit potential for technology transfer between rich and poor which further enhances
inequality.
Argument that need patent to preserve R and D suspicious in that profits are not
revealed and government funding. Cost of preserving patent is human lives.
1999 NGO mobilization to have budget increase to provide medicine b/c
devaluation of currency.
Brazil uses threats of compulsory licensing to reduce cost of drugs.
In S.A. case NGO protests outside U.S. consulate in Brazil
Brazil presents resolution to UN HR commission called for making drugs affordable
in face of epidemic
Continued developments depend on public pressure.
Brazil while it provides drugs, still has to deal with structural adjustment which means
less spending on social programs.
Successful defence of citizen’s interests requires active civil society- greater
commitment to public interest
Struggle for access to medicines underscores the exclusionary process by which
agreements on trade and intellectual property are currently reached.
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E.
Halperin, “No Way to fight Aids in Africa”
What is need to prevent AIDs in Africa is not advertising campaign- but broad
mobilization of civic, religious, other grass-roots communities- combined with
commited political leadership aimed at changing fundamental patterns of sexual
behaviour. (?)
“Score” and “Red Card” campaign.
“Madison Avenue” style marketing campaign, instead of resources to community
organizations
loveLife (ad agency)
Argument that condom use doesn’t work inside traditional marriages
Uganda – behaviour modification- condom use- fidelity
Circumcision an option to reduce spread of AIDs
F.
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Reaffirm role of international trade for economic development and alleviation of
poverty
Commitment to sustainable development- non-discriminatory multilateral trading
system and sustainable D can be mutually supportive
No country should be prevented from taking measures for the protection of human,
animal, plant…or of the environment at the levels it considers appropriate, subject to
the requirement that they are not applied in a manner which would constitute a means
of arbitrary or unjustifiable discrimination between countries where the same
conditions prevail, or a disguised restriction on international trade, and are otherwise
in accordance with the provisions of the WTO agreements.
Support interpretation of TRIPs in a manner supportive of public health, by
promoting both access to existing medicines and R and D into new medicines.
Reaffirm that provisions for special and differential treatment are integral to WTO
agreements.
G.
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Doha Declaration
Letter from Interagency Coalition on AIDs and Development
Letter to PM noting that para. 6 of Doha that LDS’s not in a position to make effective
use of such measures as compulsory licensing b/c lack domestic capacity so must
import. TRIPS restrictions on production for export, thereby limiting sources for
LDC’s in need.
Concern that Canada is supporting restrictions
Developed countries argue only redefine for restricted list of diseases- HIV, TB,
malaria- “epidemics”- but TRIPS should be interpreted from public health viewpointwhat about cancer, heart disease, etc.
Para 5 says that each country has the right to grand compulsory licences and to
determine grounds upon which licences will be granted
Restrictions contrary to spirit and letter of Doha
Scope of health technologies covered- Japan against vaccines
68
Eligibility of countries to use the solution for import and to export
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To make effective use, LDC’s need to be able to import
Should not just be limited to LDC’s but DC’s as well
Canada could amend its Patent Act to legally permit the production, under compulsory
license, of a generic drug for export to a developing country if that country has issued
a compulsory licence for that product, or where patent not in force in that country and
there’s a need
Fulfill need in DC’s and take advantage of the supposed flexibility of compulsory
licensing.
Canada has a capacity to produce generic drugs- should be made available to respond
to needs of developing world.
H.
UN CESCR (Committee on Economic, Social, and Cultural
Rights)
II States Parties’ Obligations
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•
I.
Geffen, “Applying Human Rights to the HIV/AIDS Crisis”
Treatment Action Campaign (TAC)- South Africa- grassroots NGO campaigns for
access to treatment for HIV/AIDS patients.
Human rights is a fundamental tool/basis for advocacy
Achieving social justice requires access on domestic and international levels
Use legal action and threat of legal action to force government and Big Pharma to
recognize basic rights such as right to health care enshrined in constitution
Recognize abuse of drug companies and develop a global trust fund to combat aids
•
Out of S. A. revolution comes a constitution with a bill or rights- life, dignity, health
care…Also need mass mobilization- treatment literacy programs- hard to do with low
levels of scientific literacy in S. Africa.
•
Threat of legal action to get government to provide treatment to pregnant mothers
(AVR)
Parallel importation is the importation of a product from a distributor in another
country
Big Pharma sees as breach of property rights- this should be considered in context of
rights to life and dignity- most fundamental human rights
TAC global day of protest- more than 10 countries- Brazil- Kenya, Philipinnes
Only competition from generic manufacturers (with royalty based compensation for
the patent-holders) offers a sustainable means of driving prices on these medicines to
their marginal cost- e.g. Brazil. TRIPS partly responsible for holding back progress.
TRIPS provision sufficient from a legal perspective to allow issuing of licenses for
generic versions of products under patent to be produced and imported (with
•
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69
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compensation to the patent-holder), developing countries have been fearful to act on
these exceptions.
Agreement ambiguous, which leaves scope for trade action of rich countries against
poor at WTO
Many DC’s intimidated out of pursuing generic importation or production
Many poor countries cannot afford- should be a global trust found supported by
Developed nations. Article 25 of UN Declaration of human rights and health and
medical care.
VIII. Borderless Justice through Transnational Tort Law
The US Statutory Cause of Action and its Transplantability in Canada Through
Common Law Judging
A.
John Terry, “Taking Filartiga on the Road” Why Courts Outside
US should accept Jurisdiction Over Actions Involving Torture
Committed Abroad
Introduction
Increased emphasis on “3rd country legal actions”- nationally-based remedies that attempt
to hold human rights violators individually responsible for serious human rights
violations committed abroad.
Criminal or civil law- criminal route through universal jurisdiction- enables a state to
prosecute individuals for certain very serious offences, even if the state has little or no
connection to the offender, victim or the offence.
The civil remedy allows victims/dependants to bring a tort action against persons who
have committed human rights violations abroad.
1984 Convention against Torture- state parties ensure that all acts of torture offences
under criminal law, extradite or prosecute alleged torturers found within their territoryensure jurisdiction- so have enacted laws that give their courts criminal jurisdiction over
torture abroad- e.g., Pinochet.
US domestic law allows to prosecute torture abroad in absence of treaty that gives
jurisdiction on the international level.
Argues that courts have always taken jurisdiction, where appropriate, to prosecute tort
actions from abroad.
Lies in application of forum non conveniens and choice of law.
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Role of the Tort Remedy
Principle that victims of human rights violations should be compensated is widely
accepted. International treaties- inter American Court of Human rights accept principle of
compensation [112].
More symbolic for 3rd party actions- vindication of victims- b/c torturers absent.
Let victims tell their story- public record.
Third country actions as mutiple roles of justice, catharsis, and political activism. E.g.,
Dili massacre- east timorDomestic law- referring to international treaties- promotes development of international
human rights law. Serve as crucial precedents for the universal power to sue, prosecute
and extradite certain kinds of human rights violators wherever they committed their acts
and wherever they may be found. Pinochet.
Advantages Over Criminal Law
Few states use universal jurisdiction for criminal law. Spain in Pinochet but also Spanish
nationals involved- contrast with tort in US where more than 20 actions regarding
different countries.
States have little incentive to start criminal actions- system criminality involving whole
system of government- political implications. Judgement on society.
Human rights regimes are premised on a weak structure of moral rather than material
interdependence. In such a normative environment, human rights violations occurring
abroad seldom have an impact in another state direct enough to justify retaliation.
“shoe on other foot” other states may use precedent against you.
Interstate complaint system on International Covenant on Civil and Political rights,
Convention Against Torture- have never been invoked.
Individuals acting through NGO’s and not states are the agents for change.
In Canada only AG can prosecute- will not allow private citizens to initiate war crimescrimes against humanity- have to consider relationship with other state.
Initiation of tort rests with individual.
Criminal – beyond reasonable doubt- have to get evidence from other country- can be
hard to do.
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Tort actions no reasonable doubt- liberty of tortfeasor not in question- balance of
probabilities.
Courts Can Take Jurisidiction Without Express Statutory Authority
Jurisdiction Aided by Background Human Rights Norms
Torture- assault, battery, intentional infliction of mental suffering- take jurisdiction
within private international law framework.
Taking jurisdiction strengthened by prohibition in international law- prohibition against
torture- a jus cogens norm.
Peremptory norm or jus cogens- a norm that enjoys a higher rank in the international
hierarchy than treaty law or ‘ordinary’ customary rules. Therefore, cannot be derogated
from by States through treaties, local customs, or even customary general rules.
Deterrent effect- prohibition of torture an absolute value from which noone can deviate.
Service
US transient service- doubtful elsewhere…or service ex juris- R. 17 ON- damage
sustained in Ontario
Real and substantial connection- Prohibition against torture is a jus cogens norm- little to
no risk of illegitimate, let alone, unlawful interference with the policies of another state.
Forum Non Conveniens
Existence of a more appropriate forum- if tortured, then state where torture took place is
not best forum for victim.
“a totalitarian regime will not permit adjudication by its own courts on its own
shortcomings.”
Choice of Law
Double applicability- actionable in both law of forum and place of wrong- now move
toward applicable law is the place of the wrong. Lex loci delicti.
140 states ratified ICCPR- no one subjected to torture- also domestic law in most statesjus cogens.
Use lex loci delicti- third party country uses formal law in place of wrong to convict.
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Local amnesty- short limitation periods- use jus cogens to show that amnesty should not
applySovereign Shields- State Immunity and Act of State
Two “defences- state immunity only where state or state entity is sued- jurisdictional bar
to hearing cases involving foreign sovereign. Act of state- presence of legal issues that
require a foreign court to assess validity of foreign law to determine rights and
obligations of parties.
US Court approach to sovereign shield defence
US courts say these acts are “unofficial”
Problem is that definition of torture is that it is inflicted at instigation or consent of public
official or official capacity- focus on illegality under international alw
“how can it be for international law purposes an official function to do something which
international law itself prohibits and criminalizes.”
Privatize the torture- but often state sanctioned.
Universal criminal approach to sovereign shield
Jurisdiction over pirates- no allegiance to any sovereign- committed for private ends.
Nuremburg no public/private- universal jurisdiction- ignore sovereign immunityCannot find shelter behind official position if acts violation of international law.
If domestic courts have to act in accordance with rule of law, and international norms
limit sovereign defence, then domestic courts should not recognize sovereign shield.
Statutory interpretation- respect international treaties- prohibition of torture jus cogensdon’t respect state immunity.
B.
Bouzari v. Iran
State Immunity Act- (1)except as provided in this act- a foreign state is immune from
the jurisdiction of any court in Canada. (2) in any proceedings before a court, the court
shall give effect to the immunity conferred on a foreign state by subsection (1)
notwithstanding that the state has failed to take any step in the proceeding.
Bouzari- oil contract- imprisoned- tortured- demanded ransom. Iranian government no
defence- default- accept charges as true.
JurisdictionIn Canada- jurisdiction only if it has a real and substantial connection- and forum non
conveniens- tort litigation – les loci delicti- the law of the place where the tort occurred-
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Real and substantial- forum non conveniences- tenuous with Iran- how can he bring the
action in Iran though?
The State Immunity ActRestrictive immunity- commercial activity exception s. 5 and tort exception s. 6.
s. 18- act does not apply to criminal proceedings- argues criminal b/c punitive damages;
however, these can only be awarded in civil claimCommercial Activity ExceptionCommercial exception – any act characterized as private or commercialLa Forest in Canadian Labour Code- take a contextual approach to immunityHard to characterize this as commercial b/c really about torture
Exercise-of police, security powers within sovereign authority
Section 5 does not apply.
The Tort Exception:
Not immune for death or bodily injury or damage, loss to property in Canada
S. 6- the injury must occur in Canada [will apply if psychological injury occurs in Canada
though].- Injury occurred in Iran- S. 6 does not apply- unless a special exception for
torture in another state is ‘read in’.
Read into s. 3- signatory to Convention Against Torture (CAT) obligation to provide civil
remedy for victims of torture- jus cogens that overrides customery rules such as state
immunity.
Role of International Law in the Interpretation of Canadian StatutesNational Corn Growers- can look to international instrument to clear up ambiguity when
implementing Canada’s international obligationsCustomary rules of IL incorporated directly into Canadian Law, unless ousted by
contrary legislation- in contrast- treaty no effect until implemented by appropriate level
of government. Baker- even when not implemented- the values reflected in IHR may help
inform the contextual approach to statutory interpretation and judicial review.
If conflict b/twn Canadian leg and IL- then Cleg paramount.
The interpretation of state immunity act in light of IL
1) CAT obligation; 2) jus cogens- read in exceptionProblem leg is clear- appropriate role of judge or legislature- Says that legislation is
consistent with both customary international law respecting state immunity and Canada’s
treaty obligations.
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Covention Against TortureTorture defined- acts of public officials acting in an official capacity14(1) ensure that party obtains redress and has an enforceable right to compensation.
Some states have amended criminal laws to allow them to prosecute individuals for
torture committed outside their jurisdiction.
View that 14(1) no territorial jurisdiction; AG this does not conform with state practice.
State practice part of interpretation- State P says torture only if in your jurisdiction.
Jus Cogens Argument
Jus Cogens higher than customary lawPeremptory norm- a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the same
character.
Pinochet- prohibition of torture established jus cogensScope of the norm- does it include an obligation to provide a civil remedy against a
forum state- State practice seems to permit immunity for torture.
Decisions of National CourtsEnglish courts- immunity to Iraq for actions in Kuwait invasion- even though against jus
cogens.
Pinochet an individual- but immunity to Chile as state.
German case- implied waiver for crimes against humanity.
Decisions of international Tribunals
European Court on HR also allows state immunity- comity good relations between states.
Belgium Case- International Court of Justice- gives immunity to foreign minister even
though accused of crimes against humanity. US allows civil actions for state-sponsored
terrorism- but this is not torture.
Constitutionality of State Immunity Act
State immunity contrary to s. 7 of Charter- 1) deprivation of life, liberty, and security of
person; 2) deprivation not in accordance with fundamental justice.
Deprivation to life, liberty and security of person caused by Iranian officials.
Suresh case- deportation to torture- then Canada plays a role in deprivation to life, liberty
and security of person. Canada’s failure to provide remedy does not make it participant to
torture.
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Conclusion- widespread condemnation of torture but does not require to new exceptions
to state immunity act- current norms of international law- states continue to have
immunity for civil claims. Canada’s state immunity act complies with treaty obligations
and customary international law.
C.
Wendy Adams “May Jus Cogens Norms be Invoked”
Access by Domestic Courts to International Law
Problem of potential defendant claiming state immunity. Permitted exceptions to state
immunity include commercial activity- e.g., foreign state activity relates to market
transactions instead of government functions, and tortious conduct occurring within the
territory of state.
Given clarity of text, is court’s access to international law for assistance with
interpretation a legitimate exercise?
Transformationalist approach- no force or effect until adopted by domestic legislation.
Adoptionist approach will receive international law directly into legal system.
Nothing explicit in State Immunity Act to say that immunity will not apply to Convention
against torture b/c of jus cogens.
Canada- executive branch of no effect until enacted by legislative branch
Canadian courts presumption that legislature does not intend to act in violation of
international law unless express indication to the contrary.
Hard to reach conclusion; however, that courts can interpret and access provisions of
CAT for direct basis of adjudicating civil claims.
Baker- parent argues immigration best interests of child although Convention on Rights
of Child not specifically implemented.
L’Heureux Dube says that if not implemented then no force of effect but can use
international law for contextual approach to interpretation of local law.
Author says this lets appellant accomplish indirectly what she could not do directlycompelling immigration authorities to recognize Canada’s international obligations in
domestic law, in absence of legislative branch approval.
In accordance with Baker- possible for Canadian court to refer to CAT in absence of
enabling legislation.
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Argue that State Immunity Act cannot be assessed in isolation from important Canadian
values and principles that also operate at the international level- including ratification of
international treaty.
Even if could do with CAT- no express term of CAT authorises an extraterritorial
assertion of civil jurisdiction with a corresponding exclusion to state immunity. Have to
interpret terms into CAT and then draw out again. Is the progressive decision in Baker
undermining internal democratic process?
Author says court should not interpret absent enabling legislation.
For court to interpret international obligations without legislature would be hard to
justify, especially against foreign nationals.
Only case where appropriate if constitutional issue b/c Canadian high constitutional
protection of human rights- international law supplementary.
Charter- constitutional review to judiciary was a deliberate choice.
Conclusion: Judicial or Political Enforcement?
Domestic resolution of issues surrounding violation of international law have to consider
legitimacy of domestic court’s actions. Permit domestic courts to access international law
but also reconcile conflict between international and national law.
If state immunity- then courts actions are political not legal
Problem with Baker is that it allows a P to circumvent the democratic process and access
international norms that would otherwise be unavailable. Only possible way is
infringement of P’s constitutional rights.
May be able to interpret State Immunity Act in manner consistent with constitutional
values as they are embodied in international covenants; however, even then have to find
universal civil jurisdiction and get around state immunity.
Jus cogens of prohibition recognized- sovereignty must be excercised in manner
consistent with jus cogens.
No recognition that jus cogens a matter of private internationa law- really public
international in scope.
Unilateralism in enforcement- even if violate jus cogens- does not follow that domestic
enforcement is justified.
Issue with sovereignty- even criminal universal jurisdiction not well received- not likely
will be better with tort.
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States should be more open to acknowledge that unilateral efforts are justified by
reference to natural law imperatives rather than by existing positive international law, and
that interpretation of judges is a necessary evil given lack of political will to establish an
international enforcement mechanism.
D.
Robert Wai, “The Commercial Activity Exception”
The Narrative of Evolution of the Commercial Activity Exception
Sovereign immunity gives jurisdictional immunity- so classification is important.
Western jurisdictions, growing recognition of qualifications on sovereign immunity.
Restrictive theory of sovereign immunity and commercial activity exception.
Main issue for common law courts has become the proper interpretation of the sovereign
immunity legislation with respect to the classification of state activity as either subject to
the immunity or falling within an exception to the immunity.
The Classification Problem
Idea of sovereignty little guidance- conflicting claims of different sovereigns and
conflicting conceptions of the concept itself. Nor to jus cogens, sovereign equality or
international community- also relative.
(a) the nature or form test
US focus on the nature or form of state conduct- don’t look at purpose but outward from
of the conduct- e.g., a market transaction that could be conducted by a private party.
If commercial to be determined by the course of conduct…type of actions a party
engages in for trade or commerce.
U.K. lists specific examples- distinguished on form – e.g., “K for goods and services”.
Canada- commercial activity- “any particular transaction, act, or conduct or any regular
course of conduct that by reason of its nature is of a commercial character.” SCC- often
hybrid- public-private nature- prefer contextual approach- recognize distinction so
complex that no simple test can recognize.
(b) Contracts and classification
Presence of K between state party and private party important to determine immunity.
Comparatively favourable treatment under immunity doctrine of contractual over tort
claims.
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K indicates state actor acting in a commercial capacity.
Existence of K may support finding of waiver on part of sovereign. –arbitration clauses
as waiver. Understanding in K that party wants enforceable legal rights.
E. Al-Adsani v. UK
Facts- 110-111
Kuwaiti air force- then resistance- sexual video-tapes-sheikh then tortured. Posttraumatic stress disorder.
Alleged violation of article 6(1) of the convention- In determination of rights and
obligations- everyone entitled to a fair and public hearing within a reasonable amount of
time by an independent impartial tribunal established by law.
The court’s assessment:
Article 6 guarantees to everyone the right to have any claim relating to his civil rights and
obligations brought before a court.
Subject to limitations, but they must be reasonable. Sovereign immunity legitimate to
promote comity and good relations.
Restriction must be proportionate to the aim pursued- Article 31 of the Law of Treatiesaccount to be taken of “any relevant rules of international law applicable to the relations
between the parties.”
Be mindful of special character as HR treaty and take relevant rules of international law
into account.
Some restrictions are inherent, i.e., those generally recognized by the community of
nations.
Preserve state immunity for civil proceedings unless injury was caused in the forum stateargument that torture is jus cogens and takes precedence over treaty law and other rules
of IL.
Some courts have recognized torture as peremptory norm.
Present case is not about liability of individual- as in Pinochet- but immunity of state for
a civil suit for damages within the territory of that state. No case law backing and none of
the primary international instruments- UN declaration on human rights- international
covenant on civil and political rights- and CAT relates to civil proceedings or to state
immunity.
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Some arguments that states should not have immunity when violation of human rights
norms in line with jus cogens.
US amendment to Foreign sovereign immunities act [FSIA]- applied by US in two cases.
Does not follow that applies to civil actions for torture.
US amendment- means (1) immunity already there; (2) also only for state-sponsored
terrorism. [UN Convention Against Torture].
IX.
Universal Criminal Law Jurisdiction: Decentralized Prosecutions and
Cooperative Enforceme
General: jurisdiction and PIL Issue of extraterritoriality
A.
Bederman, “Jurisdiction”
Jurisdiction- questions about incorporating international law into domestic legal systemsinternational law background principles- and allows states to work out themselves.
Different kinds of jurisdiction- 1) power or a nation to legislate- jurisdiction to prescribe.
Question whether country has power and authority to prescribe rules that have an impact
beyond borders.
2) Jurisdiction to adjudicate- jurisdiction to adjudicate a matter involving a foreign
national?
3) jurisdiction to enforce.
Central dilemma with jurisdiction- LOTUS case- “lotus presumption”- states free to
assert jurisdictional competence to the absolute limit the law allows. Permissive systemeverything is permitted except that which is explicitly rejected.
Problems- states feel obliged to make strong claims lest it be viewed as acquiescenceReduce impact through comity- conduct not out of legal obligation but respect for
international neighbours. Comity exercised in maritime law- also when decide on forum
no conveniens.
Also interest balancing- private international lawUS Restatement of the Foreign Relations Law of the United States. Lotus presumption
replaced with a test of reasonabilitySubstantial, direct effect on territory- character of activity- expectations- criticism is that
clear rules replaced with amorphous interest balancing.
Extradition and Mutual Assistance-
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Mutual assistance – Hague conference on Private IL- service of process- taking of
evidence- authentication of documents, etc.
Often foreign courts will not enforce judgements for matters of public policy- e.g.
German courts refusing US punitive damages.
Ultimate forum of mutual assistance is extradition.
Rule of double-criminality- alleged crime must be punishable in both the requesting and
sending states.
Speciality- only tried for the crimes for which a person is extradited.
Political offence exception.
Interstate Cooperative Enforcement: Child ‘sex’ tourism.
B.
Seabrook, No Hiding Place.
Response to child sex tourism- enacted or extended existing extraterritorial legislation to
cover sexual abuse of children abroad.
- Need to expand info and develop cooperation among law enfocement agencies.
Several countries- including Canada- have expanded laws so they may prosecute
nationals for offences committed abroad. Technical problems when prosecuting abroad.
C.
Seabrook- Case History of Jan Van Schelling
Photographic material found- but Dutch law will only allow prosecution if one of them
lodges a complaint. Formal offer of Phillipines police for Dutch to go there and
investigate.
Article 244 of dutch code amended so don’t need complaint from victim- but must be
proof of under 12. Must also be an offence in territory where commited. Sentenced to 5
years- no excuse that girl was a prostitute.
Up to offender to ascertain age.
ECPAT Netherlands suggestions- remove complaint requirement- not realistic for
prostituted child to lay complaint against a client.
D.
Seabrook- Case History of Marcel Theirry
The Silence of the Authorities
Theirry convicted- French authorities request passport- appeals and skips country.
France two requirements to prosecute- must be an offence in both countries and there
must be a complaint from one of the relevant authorities or the victim.
Lack of cooperation between French and Thais- reluctance to incur costs involved in
extraterritorial prosecutions.
1994 change in French law to discourage sex tourism- i.e., payment for sex with childfine and 10 year imprisonment. Removed double criminality and complaint. Problem if
offence committed before 1994.
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NGO could conceivably start action, even if no complaint from victim. Three year
limitation on delits- but prosecution in foreign jurisdiction stops time from running.
E.
Seabrook- Case History of Jonathan Hamilton
Ambassador and the Street-Boys
Paedophilia by Australian diplomats.
Case against Hamilton dropped, insufficient evidence.
No mutual-assistance treaty with Cambodia- police prevented from collecting evidence.
Confused at court- flown to Australia- no account of cultural differences- time- birthdaystreated as if Australians.
F.
Conclusion in Question and Answer
To Whom Do the Extraterritorial Laws Apply?
Although normally applies to nationals- some countries have extended the scope of
extraterritorial jurisdiction to offenders who live in the territory of the state or are passing
through (Belgium/Sweden).
Which Offences are covered- extraterritoriality apples to pimping- inducing minor to
prostitution- secual assault- rape etc.
What are the double-indemnity criteriaMost but not all require double criminality- not in France for offences v. Children.
Other requirements- victim must file a complaint within time limit.
Double jeopardy- but must actually serve time in other country to prevent.
Private international law- choose law that is more lenient.
Extradition- depends on existence of extradition treaty
Abuse mainly comes to light through work of NGOs.
Question of compensation- applies in some cases.
Problems with investigation procedure- formal channels cumbersome- informal contacts
Okay.
Universal Jurisdiction over War Crimes Under International Law
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G.
Weller “On the hazards of foreign travel.”
Dictators and other International Criminals
Classical approach- sovereign immunity absolute
Modern international law- post ’45 recognizes that state sovereignty is not absolute and
states can be subjected to certain fundamental legal obligations. Contemporary
international law, recognizes that there exists and international public order. There is an
international constitutional order which assigns limits or powers that may be exercised by
states and other international actors.
Pinochet case highlights the transformation in the international system.
Universal jurisdiction- enables states to assert a claim to arrest, prosecute and try those
who have trespassed against the most fundamental rules of the international constitution.
Some international crimes- gives a positive obligation to extradite.
Warrant for Pinochet’s arrest from Spanish magistrate- disappearances and torturecrimes against humanity.
European Convention on Extradition 1989- Crime alleged to have been committed within
the boundaries of the requesting state; extraterritorial jurisdiction, alleged conduct must
either have been committed by a national of the requesting state acting abroad, or it must
amount to conduct which would be punishable as an extraterritorial offence.
UK law does not allow prosecution of a murder committed abroad on the basis that the
victim was a national.
Question of immunity- State Immunity Act UK sovereign immunity applies to the head
of state in public capacity- Pinochet not in that capacity- pleads diplomatic immunity as
senator- but this is rejected.
Court finds torture not an exception to sovereign immunity.
Concern that ruling inconsistent with international constitution.
House of Lords finds that sovereign immunity cannot apply; appeal b/c one of judges has
ties to Amnesty International.
Torture only extradition crime- extraterritoriality only applies to murders committed
abroad by UK nationals. And torture only after 1984- Torture Convention.
International Constitutionalism:
Title to immunity in relation to genuine international crimes does not in fact exist. Sov Im
only applies in commercial context and never a bar to international criminal justice. Sov
does not give state a priori rights that can only be reduced through an exercise of the
state’s consent.
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State seeking immunity must show that it has been granted such a right through the
international constitution. Few instances where former official faced with criminal action,
so no customary law on the matter.
Less radical view is that states enjoy immunity in principle- through state practice.
View that by participating in international community, have agreed to jus cogens
concepts and immunity does not apply.
Must be genuinely universal crimes- Torture Convention brings into effect- obligation to
extradite state officials- Can’t take full effect to Pinochet case b/c limitation of
extradition proceedings to extradition crimes- only after 1988 in UK when act comes into
force.
A state that becomes a party to a relevant convention loses its claim to immunity in
relation to the new crime that is being subjected to special universality through the
convention. Loss of immunity applicable to all states if a law-making convention- e.g.,
not aimed at network or reciprocal obligations.
If obligation to extradite in treaty- will only become binding on other states if crime in
question achieves genuine universality.
H.
Lagos and Munoz
The Pinochet Dilemma
Justice should be done, but by whom? Will universal jurisdiction result in strong states
imposing their jurisdiction on the weak?
Transnational has eroded national borders viz. immunity; however, will this threaten
peaceful transitions. Pinochet allows some political dissent.
1980s fall in copper prices, increased debts- protests in Chile- Ocalan arrest –German
warrant but does not want to try- mindful of Turkish population at home.
CAT, Geneva conventions allow government officials to be held accountable for crimes
against humanity. Cold war prevented bringing dictators to justice if they were backed by
one of the superpowers.
UN Courts try crimes against Yugoslavia and Rwanda- accept that private citizens can be
tried- why such controversy over Pinochet. The former are through international courts
not jurisdiction of one country- renunciations of sovereignty that nations make through
human rights treaties.
Political expedience of states v. activist judge and public opinion.
How to you balance justice with forgiveness when returning to democracy?
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Trade off between justice and safeguarding values such as democracy and stability.
Not full popular sovereignty- right-wing in Chile still has influence, through military and
senate- hard to get full justice.
Pinochet’s arrest increases divisions with Chilean society.
Contradiction- Kabila protected b/c in power- but no diplomatic immunity to ex-leadersdiscourages them to give up power.
The decision about who may be arrested to face trial is a matter of power not justice at
present.
International Criminal Court meets goals of curtailing impunity on serious human rights
violations and ensuring just and fair process subject to clear rules that are accepted
voluntarily by all countries.
Treaty establishing ICC approved 120 to 7- but US declines. Rules- independent
prosecutor- must allow country to investigate themselves- Third country cannot hand
over accused unless country where occurred also ratified the treaty.
I.
Sugarman on Judge Guzman
Guzman- Chilean court finds evidence to prosecute Pinochet of murder- concealment of
murder.
Lower court 2001- Pinochet mentally unfit for trial- Supreme court considering the
matter.
Significant- b/c Caravan of Death investigated- US knowledge.
J.
Human Rights Watch
Sharon- implicated in Palestinian refugee camp massacre in Sabra and Shatilla.
Kahan commission investigates and advises that Sharon be discharged from duties by not
taking action to prevent massacre.
HR watch says investigation should be undertaken against officials in government who
did not act.
IDF did not go into camps with Phalangist- the danger of massacre was obvious. If aware
of danger, then obligation to overlook.
K.
International Policy Institute
Victims of terror file suit against Arafat in Belgium
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Suit against Arafat for genocide, murder, crimes against humanity because of terrorist
attacks.
93 Oslo accords- Arafat supposed to have Palistinian Authority act as law enforcement
agency- does not arrest terrorists and frees from jail too.
Belgian law allows Belgian courts to try cases for war crimes and crimes against
humanity regardless of where they took place or the nationality of either victims or the
accused.
Complaints filed against Sharon- Castro- Kagame (Rwanda)
L.
BBC “Belgian War Crimes Law Rejected”
International Court of Justice says that Belgium cannot bring war crimes charges against
a minister who enjoys diplomatic immunity.
Probably drop cases against Sharon, Arafat, Castro, Hussein.
Belgian law used successfully to prosecute two Rwandan nuns- sentenced to 15 years in
prison.
M.
Black “Belgium asserts right to try Sharon”
Allow prosecution of Sharon once leaves office. Allows prosecution of an Israeli general.
Belgian senate allows prosecutors to investigate suspected war criminals even if they do
not live in Belgium.
N.
Statute of International Criminal Court
Article 5- jurisdiction limited to most serious crimes of concern to international
community as a whole- (a) genocide; (b) crimes against humanity; (c) war crimes;
(d) aggression.
Article 11- jurisdiction only after entry into force; state becomes party then
jurisdiction only with respect to crimes after comes into force.
Article 12- preconditions to the exercise of jurisdictionState signs accepts jurisdiction of court- If state not a party can submit to have
court hear/
Art. 13- exercise of jurisdictionArt 14- referral of situation by state Party
Art 15 Prosecutor- can seek additional info from states- victims can give info – pre
trial chamber decides whether to proceed.
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Art 17- inadmissibility (a) state is already prosecuting and has jurisdiction, unless
unwilling to do so; (b) state investigated and decided not to prosecute; (c) person
already tried; (d) not sufficient gravity.
Art 21- Applicable law- (a) this statute- (b) applicable treaties and rules of
international law; (c) general principles of law derived from national courts.
X.
Cosmopolitanism and the Canadian Constitution: Reception, Interaction,
and Transformation in Encounters with Legal Others
A.
Slaight Communications-
Adjudicator ordering employer to give unjustly dismissed employer a letter of
recommendation with specified content. Infringes 2(b) of Charter? “radio time” salesman.
Beetz dissenting- orders infringe 2(b) and are not justified- Charter applies to adjudicatorstatutory powers. Adjudicator should have necessary powers to remedy the consequences
of a dismissal. May force the appellant to lie. Totalitarian in nature. Letter was drafted by
adjudicator- disproportionate and unreasonable.
Dickson- objective of sufficient importance to warrant overriding the appellant’s freedom
of expression. Counteract effects of unjust dismissal by enhancing the ability to seek new
employment. Cannot protect freedom of expression in this case b/c continuation of abuse
of already unequal relationship. MI- only has to send letter if requested.
Effect not so deleterious as to outweigh benefits in light of international treaty
commitment to protect the right to work. Value has status of an international human right,
either in customary international law or under a treaty.
(c) Deleterious Effects- effects not so deleterious as to outweigh the benefits- inherent
dignity of human person and commitment to social justice and equality. UN Cov on
Economic, Social, and Cultural Rights. Charter afford protection at least as great as that
afforded by similar provisions of international hr treaties. Accord high importance to P
and S objective and protection of vulnerable groups.
B.
Baker v. Canada
Woman- Canadian born with dependent children- ordered deported. Exemption based on
humanitarian and compassionate grounds- s. 114(2) of the immigration act. Given that
Immigration Act does not incorporate the language of Canada’s International obligations
with respect to Int. Cov. Of rights of child- must fed immigration authorities treat the best
interests of Canadian Child as primary consideration?
Duty of procedural fairness to humanitarian and compassionate decisions- Decisions free
from bias- respect diversity- impartiality
87
Wording of legislation shows Parliament’s intention that the decision be made in a
humanitarian and compassionate manner. Reasons of decision did not indicate that it was
made in a manner which was alive, attentive, or sensitive to the interests of the apellant’s
children- did not consider them an important factor in making the decision.
Unreasonable exercise of power conferred by legislation. No consideration of hardship
faced on returning to country of origin.
Corry; Frank I- international convention of no force or effect until ratified by the
executive- permit reference to unincorporated convention for statutory interpretation.
Convention on Rights of Child- in all actions concerning children- best interests of child
shall be primary consideration. Shall not be separated from parents against will.
CA- treaty no effect unless implemented through domestic legislation- legislation should
be interpreted in light of Canada’s international obligations; however, to require
discretion in accordance with convention violated division of powers.
Reasonable apprehension of bias- informed persons conclusion
Values of international HR law contextual approach to statutory interpretation.
Legislature presumed to respect the values of international law- constitute the legal
context in which the legislation is enacted and must be interpreted to reflect these values.
Rights of children should be interpreted with consideration of humanitarian and
compassionate considerations. Ministers decision here is inconsistent.
Decision maker should consider children’s best interests- must give substantial weight
and be alert, alive and sensitive to them. Where interests are minimized, in a manner
inconsistent with Canada’s humanitarian and compassionate tradition, the decision will
be unreasonable.
C.
Suresh
Tamil tiger- danger to security- ordered to be deported; however, not given written
reasons and not given opportunity to appeal.
Deportation TO torture constitutes a violation of life, liberty, and security of person.
Torture inconsistent with fundamental justice- s. 12 – cruel and unusual punishment.
Prohibition of torture- emerging peremptory norm.
Threat to security of Canada must be based on objective evidence and substantial risk of
harm.
Person must be given reasons in writing and opportunity to respond and establish prima
facie case that will face torture upon return. Ensure procedural fairness.
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In determining principles of fundamental justice, also take international law into account,
including jus cogens norms.
Peremptory norms develop over time and with general consensus of the international
community- difficult to pinpoint when they come into existence. Problem with jus cogens
is that states are inactive in expressing which norms are in force.
International treaties- most, if not all, states prohibit torture.
D.
Domestic Application of the Covenant
Duty to Give Effect to the Covenant in the domestic legal order
Obligation to give effect to rights within covenant. Flexible approach.
Appropriate means of redress and remedies available.
Art 27 of Vienna Convention- “a party may not invoke the provisions of its internal law
as justification for its failure to perform a treaty.” Modify domestic legal order as
necessary to give effect to treaty obligations.
Art. 8 UNCHR- available remedy
Legally binding IHR standards should operate directly in the domestic legal system.
Approach taken within states varies- some use constitutional provisions to accord priority
to I conventions over any domestic inconsistencies.
Courts should take account of Covenant rights where necessary to ensure that the State’s
conduct is consistent with obligations under the covenant. Neglect by courts of this
principle is incompatible with the principle of the rule of law, which must always be
taken to include respect for international human rights obligations.
International law requires state to choose international over domestic law in case of
conflict.
E.
Gosselin
Quebec age based distinction on welfare- under 30 1/3 welfare amount, but if participate
in work programs increase benefits.
Appellant failed to discharge burden on 3rd branch of Law test- did not show that she was
treated as less worthy.
Contextual factors- no pre-existing disadvantage- age based distinctions common way of
ordering society. Correspondance with actual needs of people under 30. Need to develop
skills. Not a stereotype- possible to proceed from informed general assumptions.
Overall impact does not affect dignity- purpose to enhance dignity.
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Did not infringe on s. 7 in a way that violated the principles of fundamental justice. Main
purpose of s. 7 to protect individual in interactions with justice system. Jurisprudence
does not indicate that s. 7 places positive obligations on the state.
Langue of s. 45 of Quebec HR code requires social assistance but not subject to judicial
review.
Bastarache- s. 29 –age infringes s. 15 of the Charter. Age prohibited ground of
discrimination.
Vulnerable position of welfare recipients lends weight to argument that distinction that
affects them negatively will affect dignity. No correspondance- arbitrary line of 30- have
same dietary needs, housing costs.
Ameliorative purpose- discriminate against people for their own good.
P & S- integration in work force- RC important to get young to work- MI- could have
increased level of support and still reached objective.
Deleterious benefits obvious.
Declare 29(1) of regulation invalid under s. 52(1)
Lebel/Arbour and LD
Lebel- might be possible to use s. 7 in circumstances unrelated to the justice system. S.
45 of Charter does not guarantee an acceptable standard of living- only standard of
living- no judicial review.
Arbour- just b/c right has economic value- should not be excluded from s. 7. Min level
of social assistance intimately connected to basic health and survival. These rights can be
readily accommodated under s. 7 without the need to constitutionalize property rights.
Not just “legal rights” but a purposive and contextual approach to charter interpretation.
Don’t freeze the living tree.
Evidence that claimants physical, psychological health seriously affected by deprivation.
Cannot justify under s. 1- P and S – but no RC- depriving of dignity does not improve
their prospects to enter the workforce.
LHD- age enumerated- no need of intention to find discrimination
McLachlin- s. 7 and economic rights? Right not to be deprived- negative not positive.
One day, s. 7 may expand a la Sankey “living tree”
Question of whether s. 7 should be applied to novel circumstances now?
Arbour 310-313
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Economic rights- broad range of interests- social security – equal pay for equal workfood, clothing, shelter. Rights here so intertwined with health- read security of personthat can be accommodated by s. 7.
Economic value not important but how it related to security of person. Problem is that
historical view that s. 7 designed for legal rights.
S. 7 protection from state- what is state action- active interference by state with LLSS in
some way by some definitive act is necessary.
Positive right- vote-minority language provisions
Blencoe- psychological harm must be state imposed, i.e., result from actions of the state.
Dunmore- in some cases exclusion from a protective regime could constitute interference.
Abour says in some cases this will apply.
Traditional s. 7 construction read out right to life, liberty and SS, only read right not to be
deprived of LLSS. Should include both rights. Arbour says the construction of s. 7 is
inadequate.
Arbour- sometimes lose sight of fact that s. 1 constitutionally guarantees rights. Guided
by principles in a free and democratic society.
Limitations on rights in s. 1 are required by the positive protection of others. If positive
rights exist in s.1, they must a foriorii exist in the various Charter provisions articulating
the existence of the rights.