Student Features

Book Reviews, Student Features

International Legal Interpretation as a Game: A Compelling Analogy?

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

 

By Odile Ammann

 

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

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

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

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

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

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

What kind of game?

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

What are the stakes?

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

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

How to shape and identify the rules of the game?

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

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

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

What are the analogy’s normative implications?

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

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

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

Op-Ed, Recent Developments

Regulating Economic Development: Environmental and Social Standards of the AIIB and the IFC

By Jisan Kim*

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

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

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

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

I.  Environmental Standards

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

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

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

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

II.  Labor Standards

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

A.  Child Labor

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

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

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

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

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

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

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

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

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

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

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

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

B. Forced Labor

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

C. Freedom of Association and Collective Bargaining

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

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

D.  Discrimination

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

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

E.  Additional Considerations

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

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

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

III.  Implementation and Oversight

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

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

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

IV.  Going Forward

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

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

 

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

Content, Op-Ed, Student Features

Closing the 90 Mile Gap: How Changing U.S.-Cuba Relations Lead to Changing Law

By Marissa Florio

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

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

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

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

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

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

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

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

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

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

 

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

Content, Op-Ed, Recent Developments, Student Features

Could Collective Action Clauses have saved Argentina’s Presidential Plane?

By Josh Macfarlane

 

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

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

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

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

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

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

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

 

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

Content, Student Features

Swimming Against the Tide: Colombia’s claim to a Shipwreck and Sunken Treasure

By Christopher Mirasola

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

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

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

The Colombian Perspective

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

An Emerging Consensus in International Law

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

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

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

What to do with the San José’s cargo

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

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

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

 

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

 

Content, Student Features

Striking the Balance: Combating Terrorism and Preserving the Freedom of Expression in Ethiopia

Image from https://globalquiz.org/en/quiz-image/ethiopia-from-space/.

By Lindsay Church

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

International Governance of the Freedom of Expression

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

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

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

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

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

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

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

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

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

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

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

Moving Forward 

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

 

 

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

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