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The Corporate Joust with Morality

by Caroline Kaeb and David Scheffer

[Caroline Kaeb is Assistant Professor of Business Law and Human Rights at the University of Connecticut.  David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern Pritzker School of Law. They are co-chairs of the Working Group on Business and Human Rights of the U.N. Global Compact’s Principles for Responsible Management Education.]

The corporate world is struggling with two competing visions of corporate ethics as the governance gap in national capitals stymies effective responses to global challenges.

The first vision gaining steam in recent years has been a form of corporate activism we call “corporate counterattack.”   Some major multinationals are increasingly challenging and indeed changing poorly conceived government policies or occupying the policy void.

Take the United States. Last year Apple, Angie’s List, Anthem, SalesForce, Roche Diagnostics, Cummins, Eli Lilly, and companies headquartered in Indiana successfully brought heat down on Governor Mike Pence to amend legislation that had allowed businesses, citing religious freedom, to discriminate against gays and lesbians.  The uproar caused the state initially to lose perhaps dozens of conferences and $60 million of anticipated revenue. Walmart similarly counterattacked against discriminatory legislation in Arkansas.

Google and other multinational corporations in the deep South balk at operating in states that glorify the Confederate flag or enact legislation undermining minority rights.  The latest examples are North Carolina and Mississippi, where laws discriminating against gay, lesbian, bisexual and transgender people have prompted strong corporate reactions. PayPal cancelled a $3.6 million investment in North Carolina. Google Ventures froze new investments in the state and other companies are reconsidering their plans. Over 140 CEOs and business leaders of such corporations as Facebook, Bank of America, and Apple signed an open letter to North Carolina Governor Pat McCrory opposing that state’s new law. Such giant corporate employers as Tyson Foods, Nissan, Toyota, and MGM Resorts International have loudly protested Mississippi’s regressive law. These collective business voices challenge state governments to protect human rights while such public authorities seek their corporate investments.

Meanwhile, in Europe some corporations have addressed the humanitarian crisis swamping that continent with philanthropy and commitments to train and employ migrants, including refugees, from the Middle East and North Africa. A newly-formed partnership of companies, including McDonald’s, MasterCard, Facebook, and DreamWorks Animation, generates private funds for the World Food Programme to feed millions of migrants by providing free ad time and access to digital promotion.

This stands in contrast to the chaos that unfolded on the European continent as governments swung further to the right and shut their borders, lacking any “big ideas” as human misery cloaked the endless flow of destitute individuals. The governance gap in Europe, North Africa, and the Middle East shows few signs of narrowing, thus assigning even greater responsibility to corporations that are willing to act boldly and innovatively to address humanitarian needs.

In early 2015 Sony Corporation marketed “The Interview,” not only for revenue but also in defense of freedom of expression after North Korea, or its agents, apparently launched cyber-attacks on the company so as to intimidate it into locking up the comedy critical of Kim Jong-un.

In the wake of recent terrorist attacks in Europe and the United States, internet giants struggle to find the right balance between privacy and security in the face of calls for more government surveillance and information sweeps that would impinge upon privacy rights globally.  For example, Apple recently refused a lower federal court order to reverse engineer a dead terrorist’s locked iPhone in San Bernardino, California, so as to gain password access and thus assist the FBI in its investigation of the deadly terrorist attack in that city. Ultimately the FBI used other means to access the iPhone.

National security concerns are of vital importance. But Washington’s insistence that Apple develop software to unlock the privacy of the iPhone is potentially dangerous. It exposed Apple and other cyberspace companies to comparable demands by repressive governments and even other democracies that will be inspired to compel corporate complicity in undermining human rights protections for spurious national security priorities. Among the victims might be human rights activists and political dissidents seeking to advance principles embodied in the American Bill of Rights and international human rights treaties.

In defense of freedom of expression, Google has fiercely challenged an extension of the European privacy right to be forgotten to non-European Union internet domains (such as google.com), regardless of whether the information was accessed from within the EU or anywhere else in the world. This is an example of competing public policy priorities that need to be weighed and possibly balanced with one another, and business has a vital role to play in that process.

None of these companies perfectly embraces principles of social responsibility and sometimes they overlook human rights or environmental standards in one part of the world while embracing them in other societies.  But there is no shortage of opportunities being seized by multinational corporations to significantly influence the protection of human rights and advance worthy social policy goals.  Fifteen years of growing corporate participation in the United Nations Global Compact, with its pledges on human rights, labor, environment, and anti-corruption, demonstrate a mindset shift that generates constructive societal contributions and a growing body of counterattacks against regressive or failed public policies.

However, there are fierce winds blowing against such initiatives.  The second and darker vision of corporate ethics remains wedded to short-term profits regardless of societal impact and even if fraudulently obtained.  The colossal Volkswagen deceit, where 11 million diesel-fueled and supposedly eco-friendly vehicles were apparently rigged to cheat on emissions tests, blatantly screamed “go to hell” to corporate social responsibility.  Coca-Cola paid scientists to argue that physical exercise is the antidote to high-sugar drinks, so consumers were encouraged to keep chugging and then jogging off the fat while Coke prospers.

General Motors, which settled with the Justice Department for $900 million, ignored and then delayed reacting to an ignition flaw in its vehicles that resulted in 124 deaths and 275 serious injuries. One young tycoon, indicted on securities fraud, shamelessly inflated the price of a 62-year old drug to treat serious infections from $13.50 to $750 and thought that was just fine in a world ruled by hedge funds.  A chief executive was recently sentenced to 28 years in prison for knowingly shipping peanut butter laced with salmonella, killing nine people and inflicting illness on at least 700 others.

Without waiting for government mandates, major corporations are joining a growing global coalition to convert to renewable energy sources.  But for decades Exxon Mobil aggressively funded climate change deniers despite the role of carbon-based fuels in that scientifically proven man-made phenomenon. Over the years, 62 resolutions have been introduced at shareholder meetings to compel the company to confront the reality of climate change in its operations and investments. But management and a majority of shareholders have voted down each of those resolutions, including 11 of them at the last shareholders meeting in May. Divestment campaigns by activists continue to dog Exxon Mobil. At least Rex Tillerson, the company’s chief executive, recently reiterated Exxon Mobil’s support for a carbon tax and further studies of the “risk” of climate change.

Former Massey Energy CEO Don Blankenship is now serving a one-year sentence in federal prison following the deaths of 29 miners he employed. He must have thought, as he managed one of the largest energy companies in America, that he could somehow evade fundamental coal mine safety standards and speak and act as if he was just barely crawling out of the Dark Ages of labor rights, and hence human rights.   If Blankenship took just one refresher course at any leading business school today, could he possibly walk out of that class with the same reckless views he exhibited on the job for years? Perhaps he would, which is why focusing on what business schools, and what they teach business students in core management classes as well as business practitioners in their executive programs, is important to review and get right. This entails teaching the protection, enforcement, and indeed advancement of human rights and other societal imperatives within the corporate world. It is in business schools in particular where it all starts, to shape the students’ minds to do rights-based business in the 21st Century.

This duel between corporate responsibility and corporate deceit and culpability is no small matter.  The fate of human society and of the earth increasingly falls on the shoulders of corporate executives who either embrace society’s challenges and, if necessary, counterattack for worthy aims or they succumb to dangerous gambits for inflated profits, whatever the impact on society.

The fulcrum of risk management must be forged with sophisticated strategies that propel corporations into the great policy debates of our times in order to promote social responsibility and thus strengthen the long-term viability of corporate operations.  We believe that task must begin in business schools and in corporate boardrooms where decisions that shape the world are made every day.

Why the World Cup of the Unrecognized Matters [Updated]

by Chris Borgen

States and nations are not the same thing.  A nation is a “people,” itself a difficult concept to define under international law. A state is a recognized political entity that meets certain criteria. International lawyers will tell you that the characteristics of statehood include a defined territory, a government, a permanent population, and the ability to enter into foreign relations.

State formation in the 19th century and also right after World War I often sought to build states for nations (hence the term “nation-state”) but the terms are not coterminous.

So what are the hallmarks of nationhood? Many know in their hearts that there may be no more important mark of nationhood than a national soccer team. C’mon, you know it’s true.

And sometimes, peoples would like to remind you that they are nations—if not states!—and want to be recognized as such (nations or states, it gets a little blurry).

So, pay attention, soccer fans and international lawyers, because this weekend will be the final match in the 2016 Confederation of Independent Football Associations (ConIFA) World Football Cup, sometimes referred to as the World Cup of the unrecognized.  According to this NPR report, host Abkhazia is the current favorite after Western Armenia and Kurdistan were unexpectedly eliminated.

The first ConIFA World Football Cup was played in 2014 and seems to be the successor to the VIVA World Cup, about which I had previously written.

ConIFA should not be confused with FIFA, the international federation of football associations. As I had explained in a post from a couple of years ago, membership in FIFA is not based on being a state, but rather on being a football association.  Thus, if you look at a list of FIFA member associations, as England and Wales are separate associations, they have separate World Cup teams. Nonetheless, joining FIFA can be subject at times to some of the same political tensions as the recognition of a state.

According to FIFA’s statutes (.pdf), to be eligible to become a member of FIFA, an applicant must first be a member of one of the six main football confederations: the Confederación Sudamericana de Fútbol (CONMEBOL), the Asian Football Confederation (AFC), the Union des Associations Européennes de Football (UEFA), the Confédération Africaine de Football (CAF), the Confederation of North, Central American and Caribbean Association Football (CONCACAF), or the Oceania Football Confederation (OFC). Without going into all the statutes of these individual confederations, it is likely that some vote among the existing member associations in a given confederation will be a first hurdle that an aspirant FIFA-member must pass. (See, for example, UEFA’s rules (.pdf).)

Thus, although membership in FIFA is technically not based on statehood, the process largely relies on statehood and state-based football organizations (but for noted exceptions, such as England and Wales). Consequently, unrecognized entities such as South Ossetia and Nagorno Karabakh have little chance of seeing their football associations become part of a confederation, let alone FIFA.

Now consider ConIFA’s  membership rules, which are linked not to statehood, but to “nationhood” or being a “people”:

CONIFA is made for national teams that represent a nation which is not a member of FIFA (yet). For that reason only non-members of FIFA can join CONIFA. The second requirement is that the applicant is represent of a nation. The following table explains in detail what we consider a “nation”:

1.The Football Association is a member of one of the six continental confederations of FIFA.

2. The entity represented by the Football Association is a member of the IOC.

3. The entity represented by the Football Association is a member of one of the member federations of ARISF.

4. The entity represented by the Football Association is in possession of an ISO 3166-1 country code.

5. The entity represented by the Football Association is a de-facto independent territory.

6. The entity represented by the Football Association is included on the United Nations list of non-self-governing territories.

7. The entity represented by the Football Association is included in directory of countries and territories of the TCC.

8. The entity represented by the Football Association is a member of UNPO [Unrepresented Nations and Peoples Organization] and/or FUEN [Federal Union of European Nationalities].

9. The entity represented by the Football Association is a minority included in the World Directory of Minorities and Indigenous Peoples.

10. The entity represented by the Football Association is a linguistic minority, the language of which is included on the ISO 639.2 list.

Every Football Association that fulfills at least one of the above criteria is very welcome to apply for CONIFA membership!

[Emphases and bracketed text added.]

As for the aspiration of at least some of these entities to become generally recognized as states, consider the parenthetical “(yet)” from the first sentence.

And why might a a sports tournament be important to people with much bigger issues to worry about? Because you can cheer your team, wave your flag, feel a sense of unity, sing when your winning and… yes, you can actually win. And if you don’t there’s always next year.

When you live in an unrecognized regime, you take your wins where you can get them.

Whether any of these associations become part of FIFA, let alone whether or not those entities that also seek to be recognized as states will ever achieve that goal, is a long and doubtful journey.  But in many cases that is due to reasons of military intervention, history, and/or international law. For today, there is a football to be played.

President Obama Calls out the Senate on Treaties

by Duncan Hollis

Earlier today, President Obama took time out during his commencement address at the Air Force Academy to make a pointed plea for the value of treaty-making.  Here’s the relevant excerpt from his remarks:

By the way, one of the most effective ways to lead and work with others is through treaties that advance our interests.  Lately, there’s been a mindset in Congress that just about any international treaty is somehow a violation of American sovereignty, and so the Senate almost never approves treaties anymore.  They voted down a treaty to protect disabled Americans, including our veterans, while Senator and World War II veteran Bob Dole was sitting right there in the Senate chambers in a wheelchair.

We don’t always realize it, but treaties help make a lot of things in our lives possible that we take for granted — from international phone calls to mail.  Those are good things.  Those are not a threat to our sovereignty.  I think we can all agree on that.

But also from NATO to treaties controlling nuclear weapons, treaties help keep us safe.  So if we’re truly concerned about China’s actions in the South China Sea, for example, the Senate should help strengthen our case by approving the Law of the Sea Convention — as our military leaders have urged.  And by the way, these treaties are not a new thing.  The power to make treaties is written into our Constitution.  Our Founding Fathers ratified lots of treaties.  So it’s time for the Senate to do its job and help us advance American leadership, rather than undermine it.  (Applause.)

Three paragraphs is not much to fully articulate U.S. interests in treaty-making (let alone give a balanced overview of the arguments over UNCLOS).  Thus, I think the more noteworthy thing here is the fact that the remarks are coming from the President himself.  It’s one thing to call out the Senate on a specific treaty like the Disabilities Convention, but this slap is more systemic. President Obama has not had a good record when it comes to making treaties through the Article II Advice and Consent process.  With the exception of the new START treaty, the Senate has refused to act on most treaties, including certain types of treaties (e.g., tax treaties, fish treaties) that in prior Administrations were entirely uncontroversial.  Thus, we might see this speech as a late shift in strategy, where the White House is moving off treaty-specific pro’s and con’s to reconstruct this issue in constitutional terms.  I’m not too sanguine that the move will be any more successful at getting votes on pending treaties, but the Senate’s response (if any) will bear watching.

What do others think?  Is there anything I’m missing here?

[UPDATE: An astute reader points out that I was incorrect to cite fish treaties as an example of Senate hostility to treaty-making.  In fact, all four treaties that have received Senate advice and consent since 2012 involved fish; in other words, fish treaties are the only treaties that have gotten through in the last four years.  Tax treaties and treaties on scientific cooperation and conservation, which in the past were, like fish treaties, non-controversial, are better examples of the ongoing hostility to treaty-making]

Symposium: Response–Defining the International Rule of Law and Moving Without Gravity

by Robert McCorquodale

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. This is the sixth and final post in the Defining the Rule of Law Symposium, based on this article (free access for six months). For the other contributions, see links below.]

I am immensely appreciative of the deep thought, and the time and effort, which the contributors to this Symposium have undertaken. My thanks, too, to the editors of Opinio Juris for enabling this to happen.

My main response to the comments on my article in the ICLQ (free access for 6 months!) is delight that there has been some real engagement with the definition of the international rule of law. For too long there has been a great deal of talk and reference to the international rule of law but far too few attempts at defining it. Each of the contributors offered thoughtful and constructive views as to the definition I proposed, and none dismissed the idea that there could be an international rule of law and none took that view that it could not be defined. This is a significant step.

In terms of their comments, Janelle Diller provides a useful insight into the operation of the international rule of law across pluralistic legal systems and by international organisations, and she warns of the problem of a patchwork of compliance systems in providing a true access to justice in the international legal order. Heike Krieger astutely shows the need for the international rule of law at a time when there are some indications of significant structural changes in the way law is operating as framework for international relations. Joost Pauwelyn is wary of the breaking of a link between domestic rule of law and international rule of law, as he helpfully shows that they can both facilitate and operationalise each other. Indeed, Simon Chesterman notes that I do fall back on domestic law analogies at times in any event. Simon and John Tasioulas focus on the human rights aspects of my definition and, while neither disagrees with the inclusion of human rights, they offer insightful and perceptive comments about how to include and exclude human rights within the international rule of law.

I accept John’s comments about human rights being about values and morality, and I would note that it does become, due to the nature of the international system, also about law. While law constrains and limits human rights (not least by the restriction of obligations being solely placed on states under international human rights treaties), it also offers a language to contest and to argue for the justice that should be part of the international rule of law. I resisted strongly the view that the rule of law must include all human rights, as being both conceptually problematic and as diminishing human rights as distinctive idea. Yet, if the international rule of law is to include access to justice (as I argue it must), it should include those human rights which are directly linked to the means of ensuring the effectiveness of the international rule of law. This requires the inclusion of substantive rights, such as the right to a fair trial and right not to be discriminated against, which are directly related to the rule of law elements of having independent courts and tribunals, and the equality of all before the law. It does not include rights such as the right to privacy or the right to education as, while they do require the rule of law to enable access to a remedy for their violation, they are not an inherent part of the rule of law elements themselves. There is clearly more work to be done by us all on clarifying the relationship between the international rule of law and human rights.

I trust that this Symposium encourages others to undertake work on this difficult and fascinating area. I hope we can all defy gravity a little longer to do so.

Symposium: The International Rule of Law – Defying Gravity?

by Heike Kreiger

[Heike Krieger is Professor of Public Law and International Law at Freie Universitaet Berlin and Co-Chair of the Berlin Potsdam Research Group on The International Rule of Law – Rise or Decline? This is the fifth post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here, the second, here, the third here, the fourth here and the fifth here.]

The awareness of a crisis of international law is widespread. The multiplicity of challenges which the international order currently faces suggests that we might not only be confronted with a temporary situation of instability but with much more deeply embedded disruptions and lasting structural changes. Such challenges and changes require us to reflect upon the state and development of international law and its relevance as a normative order for international relations. Therefore, Robert McCorquodale’s article is very timely. If we want to assess the potential of international law to regulate and to adapt to a changing global order we need to identify the functions, objectives, and the intrinsic value an international rule of law has to offer.

McCorquodale chooses a normative approach and offers a definition for the international rule of law which relies on four objectives: “to uphold legal order and stability, to provide equality of application of the law, to enable access to justice for human rights, and to settle disputes before an independent legal body” (p. 16). This effort to develop and illustrate a definition of the international rule of law helps us to distinguish structurally more relevant forms of crisis from temporary instabilities:

McCorquodale identifies the doctrine of pacta sunt servanda as a pertinent case of application for his definition. The doctrine “means that states must comply in good faith with legal obligations to which they have consented“. He submits that it forms an incentive for States to subject themselves to legally binding obligations: “This doctrine benefits all states equally, so that each of them has confidence in reaching legal agreements to secure their own interest and to assist in attaining international legal order and stability“ (p. 20). Indeed, the doctrine of pacta sunt servanda is one of the most fundamental elements of the concept of the international rule of law since it relies on the intrinsic value of the law to create stability and a minimum of trust. Thus, the idea of an international rule of law is significantly challenged when the application of this doctrine is called into question. Certain indications suggest that we can presently observe such a development.

The first indication consists in a systematically relevant disregard for inter­national law. Of course, inspite of their legal obligations States have always violated international law. Thus, I agree with McCorquodale that the existence of an international rule of law does not depend on the compliance with “substantive international legal rules“ (p. 14) but that the international rule of law is a relative concept with “varying degrees of adherence to the rule of law, as perfect adherence is ‘an ideal’“ (p. 3/15). The concept of the rule of law works like a principle whose commands maybe realized to a greater or lesser extent and whose objectives can accordingly only be optimized “with the aim of fulfilling them all over time” (p. 28). However, systematically relevant forms of non-compliance might call basic rules, or even the functioning of the system itself, into question since they affect the doctrine of pacta sunt servanda.

A pertinent debate revolves around the rules on the use of force. Whereas Tom Franck’s famous 1970 essay on Who killed Article 2 (4)? suggests that disregard for the prohibition on the use of force is not a new phenomenon, the significant variety of challenges for these rules implies a structurally relevant quality: Unilateral interventions and unilateral interpretations of UN Security Council resolutions in the cases of Kosovo, Iraq and Libya may have contributed to undermining the credibility of intervening States, if not of the whole Charter system. The impression that some States apply double standards may have resulted in a lack of a forceful UN General Assembly reaction to Russia’s attempt to annex Crimea. The long paralysis of the Security Council in the face of the armed conflict in Syria and in disregard of the Responsibility to Protect questions the legitimacy of the Charter system and, in particular, the right to veto of the P5 once more. Even outside the Charter rules, prohibitions under customary international law have been weakened. State practice in relation to Libya and Syria suggests that States deviate from established obligations in relation to the prohibition of the use of force, in particular in view of the delivery of arms to Libyan and Syrian rebels. The Paris terror attacks 2015 have perhaps again decisively raised the question whether the state-centred ius ad bellum is fit to deal with challenges arising from violent non-state actors. In addition, certain structural developments, such as the cyber-space or the difficulty to characterize attacks and to attribute them to States may have led to a more fundamental challenge for those rules. More importantly even, the 2003 invasion of Iraq might not merely represent a particularly grave case of breaking the rules, but the beginning of a generally more liberal, or rather resigned, attitude towards the prohibition on the use of force and its exceptions. Recent debates among international lawyers about the legality of the different interventions in the civil wars in Iraq and Syria have apparently received lesser attention in State practice or in the general public than the interventions in Kosovo in 1999 or in Iraq in 2003.

A second indication concerns a loss in the confidence to conclude legal agreements. There are at least some ambiguous developments which suggest such a significant challenge to the idea that international law is at all a necessary or useful framework for international relations. A relevant example concerns the “stagnation of international law” (see Pauwelyn, Wessel & Wouters, When Structures Become Shackles, 25 European Journal of International Law (2014) 733-763) according to which States apparently prefer informal forms of cooperation over the conclusion of formal treaties. In the field of climate protection, for instance, such a tendency could entail significant advantages, inter alia, in terms of the possibility of involving non-State actors, or of increasing the willingness to agree on some substantive commitments. However, in other areas of international law not concluding a legally binding agreement might represent a more fundamental challenge indicating a decrease of legal accountability by opening avenues for States to reinforce their discretion and augment their flexibility in the international order. For instance, after the 2011 International Conference of the Red Cross and the Red Crescent the ICRC together with Switzerland promoted a process to strengthen compliance with international humanitarian law and another process to strengthen international humanitarian law protecting persons deprived of their liberty. Both processes were apparently not turned into drafts for a binding international agreement since one could assume that a negotiating process would fail because substantial standards could not have been agreed upon under a binding treaty. But even the turn to informal standard-setting did not save the process from failing. In view of a strong opposition from certain States the adopted resolutions represented a comprise that remained far behind the expectations. It was neither possible to introduce a meaningful compliance mechanism nor to achieve the ICRC’s aim to converge the standards for detention in international and non-international armed conflicts. Instead the resolutions focus on a state-driven process and seem to sideline the ICRC (See Resolutions 1 and 2 of the 32nd ICRC Conference).

These are just some indications which suggest that we might currently observe significant structural changes in the way law is operating as framework for international relations. Suffice it to mention that other elements of the international rule of law which the article identifies are confronted with comparable challenges. In this light, Robert McCorquodale has made an important contribution to identifying the functions, objectives, and the intrinsic value of such a concept. He has developed a definition which offers a standard for assessing the current state and future direction of the international rule of law in a changing global order. At the same time, Simon Chesterman’s post suggests that some of these challenges might themselves have a impact on how to conceptualize a definition when it comes to “thick” standards, such as the inclusion of access to justice for human rights. Defining, conceptualizing and applying the international rule of law is a mutually dependant ongoing effort.

The Unredeemable Republic of China: Why Professor Lung-Chu Chen’s Theory of Effective Self-Determination May Be Harmful to Taiwan’s Statehood Claim

by Ming-Sung Kuo

[Dr Ming-Sung Kuo is an associate professor of law at University of Warwick (UK) where he has taught international law, constitutional and administrative law, and legal theory. He earned his JSD and LLM from Yale University and his LLB and another master degree from National Taiwan University.]

In Professor Lung-Chu Chen’s recent post on Opinio Juris, he reiterates his justification of Taiwan’s statehood, which I first heard when I was still a senior law student at National Taiwan University.  In this brief note, I aim to point out why Professor Chen’s theory of effective self-determination calls Taiwan’s statehood claim into question when the Taiwanese people continue to claim statehood in the guise of the Republic of China (RoC).

Professor Chen’s argument can be reformulated as follows.  First, the Taiwanese people had the right to self-determination in international law in the wake of World War II (WWII) and the 1951 San Francisco Peace Treaty.  Specifically, the Taiwanese people would be entitled to a sovereign state of their own through the exercise of their right to self-determination in a legitimate plebiscite if they wish to.  Second, the Taiwanese people have already exercised their legal right to self-determination through successive democratic elections, which jointly amount to what Professor Chen calls effective self-determination in the place of the abovementioned legitimate plebiscite.

Following these two points that concern the legality of Taiwan’s claim to statehood in international law, Professor Chen addresses the next question of whether Taiwan has actually achieved the legal status of statehood.  On this second question, his justification also consists of two parts.  Taking the Montevideo Convention of 1933 as the reference point, Professor Chen first argues that Taiwan has already acquired all the four Montevideo elements: a defined territory, a permanent population, government, and the capacity to enter into relations with other states.  In addition to these objective elements of statehood, he further points to ‘President Chen’s 2007 application for UN membership in the name of Taiwan’ as the evidence of the subjective element of Taiwan’s statehood in response to Professor James Crawford’s challenge.  Taken as a whole, Professor Chen urges that the international society recognize Taiwan as an independent, sovereign state.

Professor Chen’s four-pronged argument raises several interesting questions in international law.  For example, when did Taiwan achieve a full statehood in its evolutionary process of independence according to his theory?  How much weight should be given to what Professor Chen’s suggests as an implicit declaration of independence as expressed in Taiwan’s bidding for UN membership in 2007?  Did the subsequent KMT Administration’s shift in policy towards the UN suggest the withdrawal of the implicit declaration of independence?  What is the scope of the right to self-determination in article I of the ICCPR and ICESCR respectively?  Is it restricted to internal self-determination?  Are the Taiwanese people entitled to the right to external self-determination?

I restrict my note to the last question.  In the ICJ’s Advisory Opinion on Kosovo’s unilateral declaration of independence, it is noted that a right to independence (ie external self-determination) exists with ‘the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation’ (2010 ICJ Report 404, 436, para 79), although declarations of independence have been made outside these two contexts.  As regards the Taiwanese people, to claim the right to self-determination must be based on the fact that Taiwanese people were subject to Chinese subjugation, domination, and exploitation after Taiwan was placed under the RoC administration, which exercised the power of belligerent occupation on the Allies’ behalf at the end of WWII given that Taiwan was never listed as a non-self-governing territory under the UN.  Thus, Taiwan’s claimed statehood must have resulted from the exercise of this right to independence through which the Taiwanese people rid themselves of the Chinese yoke.  In other words, achieving independence through this exercise of self-determination (whether it takes the form of serial effective referendums or a single plebiscite) must have amounted to the repudiation of the legitimacy of the RoC’s rule over Taiwan from 25 October, 1945 on.

Here is the catch.  Although the subjugated, dominated, and exploited people have the right to independence and to rid themselves of alien occupation forces through plebiscites or other forms of self-determination, they are perfectly free to choose to become the subjects of the occupation government.  And this is the problem with the case of Taiwan.  In light of the RoC’s unequivocal claim to reunite with Chinese mainland after the 1949 division, the Taiwanese people appear to have chosen to embrace the RoC (or rather to legalize the RoC’s rule over Taiwan since 1945) through their right to self-determination by insisting on the continuity of the post-1991 RoC on Taiwan and the pre-1991 RoC regime, not to mention the continued adoption of the title of the Republic of China.  In this light, claiming independent statehood for Taiwan would have to be based on the controversial right to secession rather than self-determination, which would only jeopardize the legality of Taiwan’s claimed statehood and which the Taiwanese people have persistently denied.

Professor Chen is right that without a plebiscite under the auspices of the UN, the Taiwanese people have already exercised their right to self-determination through successive democratic elections.  Yet independence is not the only possible result of self-determination, which Professor Chen seems to presume in the case of Taiwan.  Considering the two (or more) choices in any plebiscitary procedures as the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States (http://www.un-documents.net/a25r2625.htm) suggests, I take issue with Professor Chen’s contention that the Taiwanese people have already given themselves an independent state through the exercise of the legal right to self-determination.  Failing to rid themselves of the RoC straightjacket, the Taiwanese people may instead get themselves into the one China trap by their self-determination in action.

An International Legal Agreement between the FARC guerrilla and the Colombian Government?

by Nicolás Carrillo-Santarelli

[Nicolás Carrillo-Santarelli is a Colombian lawyer, PhD on international law and international relations. He works as a researcher and lecturer of Public International Law at the La Sabana University, Colombia.]

Introduction

The last few days have been quite intense in Colombian politics due to fierce arguments _between key political players about the prospect of considering the agreements entered into between the Government and the FARC group as international legal agreements.

The discussion began when the former General Prosecutor filed an application before the Constitutional Court, precisely asking it to declare, among others, that the agreements entered into between the Government and the guerrilla are international treaties. Afterwards, the President, Mr. Santos, seemed to be pleased with this idea and it was later announced that the negotiating parties agreed in Havana that the agreements will be considered as having an international legal nature, provided that the Colombian citizens vote in favor of what has been agreed upon._

Needless to say, the reason why this point has been so prominent in discussion lies in the fact that the very parties to the transitional justice negotiations have publicly avowed that the reason why they consider the peace agreements will equate with treaties is their desire to strengthen the agreements, providing them with an armor against eventual legal challenges against them. Indeed, the agreements would be protected, because apart from the fact that the State would undertake an international commitment with the FARC, which could not be set aside on the grounds of domestic provisions –as articles 27 of the Vienna Convention on the Law of Treaties and 3 of the ILC articles on State responsibility determine-; Colombian Constitutional law has a figure known as the “block of constitutionality”, according to which, among others, certain international norms acquire the status of constitutional norms and are therefore according constitutional supremacy over other domestic norms.

In light of this, I will briefly explore two issues: firstly, whether non-state actors as rebel armed groups can celebrate international treaties; and, secondly, if, provided that the agreements end up being treated as international legal agreements, whether they would indeed be protected from any challenges -from an international legal perspective.

International treaties between rebel groups and States?

As Jean d’Aspremont and others have expressed, international law is still mostly dominated by States in relation to the question of which subjects are entitled to create it. This is one of the reasons why global governance and other theories have gained relevance, because they may somehow offset some of the shortcomings of a system that is still excessively anchored on Statehood and thus lacks some flexibility when facing certain transnational and global challenges and realities –as Jan Klabbers has said.

That being said, the fact that States largely control the identity of law-makers evinces that they are can decide to empower other actors to also become law-makers. Considering that different actors may have international legal capacities to different extents, it is therefore possible for a given State to grant law-making capacities to a given non-state actor in an ad hoc way. That is to say, an actor can be given law-making powers for one single occasion. That would be useful if, for any reason, a State desires to enter into a bilateral treaty or to celebrate bilateral custom with a given non-state actor without conferring upon it the capacity of participating in the creation of international norms in future occasions.

Regarding this, it is useful to note that the International Law Commission itself said in 1966 that “other subjects of international law, such as international organizations and insurgent communities, may conclude treaties”. Likewise, the International Committee of the Red Cross, when commenting Protocol I to the 1949 Geneva Conventions, put forward the idea that unilateral acts of peoples fighting for self-determination made pursuant to article 96.3 generate treaty rights and obligations applicable between such group and parties to the Protocol._

Furthermore, we have the case of the Abyei arbitration. This case was examined in the Permanent Court of Arbitration, and was submitted on the basis of an agreement between Sudan and the Sudan People’s Liberation Movement/Army. If we consider that the celebration of international arbitration agreements reflects jus ad tractatum, this case confirms that States can grant treaty-making powers upon a given rebel group, even for one single case.

In light of the previous considerations, the argument that the agreements entered into between the FARC and the Colombian Government may be regarded as treaties is sound, considering that the State itself seems to be openly granting the capacity to the rebel group. If so, does it mean that the agreements are immune to legal challenges from the perspective of international law, considering that some of the supporters of this strategy express that such agreements fall under common article 3 to the Geneva Conventions? Not necessarily so.

The subsistence of possible challenges to the agreements

If the FARC-Government agreements end up being international treaties, they may still be open to criticism and legal challenges. This is due to several factors. Firstly, there is the issue of jus cogens and impunity. Why so? Some political actors and NGOs as Human Rights Watch have expressed concern that the agreements on justice and victims may lead to impunity of serious violations, including international crimes. While the idea of alternative sanctions is not questioned as such, since States may decide to use them in exceptional case to facilitate transition, international human rights case law has so far said two things: amnesties are prohibited not only when granted to State agents (the so-called self-amnesties) but also to agents of non-state entities, and that there is a minimum proportionality between the conduct and the punishment that must be respected lest there is impunity.

Then, bodies as the International Criminal Tribunal for the former Yugoslavia have voiced that acts that grant impunity to international crimes and to violations of peremptory law lack validity, regardless of their being domestic or international acts; and it is well known that international treaties cannot circumvent the observance of jus cogens. Hence, if it is regarded that the agreements do provide impunity, a question to be settled and which may be explored in a future article, they would be invalid even if adopted in the form of treaties. Moreover, it has been argued that the Colombian “block of constitutionality” must respect peremptory law at all times.

Some may question if the risk of eventually declaring the agreements as contrary to jus cogens –provided that they do contradict it, which I will not address here- are real, given uncertainties about the content of peremptory law and the scarcity of case law striking down treaties on the basis of their contradicting jus cogens. Still, the risk exists: bodies as the Inter-American Court of Human Rights have condemned amnesties granted by States to non-state agents and will likely end up deciding on a case involving the Colombian agreements, being its decisions binding for Colombia; and foreign actors and activists may seek to use universal jurisdiction or transnational litigation bases against those benefiting from the agreements by arguing that international crimes admit no statute of limitations and that, if there if impunity, the agreements lack validity. Those actors and bodies can invoke international legal arguments, and they may end up being received. After all, authors as Roland Portmann have argued that peremptory law arguments could have been subtly considered in ATCA litigation in the U.S., the very Inter-American Court of Human Rights has found that rights and principles as those linked to non-discrimination are peremptory; and bodies as the European Court of First Instance of the European Union demonstrated its willingness to examine compatibility with jus cogens in the Kadi case. The threat of legal challenges that rely on peremptory law arguments, and the possibility of those challenges being examined and admitted, will remain in spite of debates in doctrine about peremptory law.

Additionally, it is important to recall that, to prevent fragmentation, treaties must be interpreted in a systemic way, in light of other applicable international norms, which includes those human rights and criminal norms that oppose impunity. Thus, the agreements would have to be interpreted in a way that ensures that there are no de facto amnesties. Finally, agreements with rebel groups, as those of common article 3 have limits. For instance, agreements entered into under article 6.5 of Protocol II cannot grant impunity to serious abuses, as noted by the ICRC.

Conclusion

The transition from armed conflict to peace is necessary in Colombia. That being said, it is necessary to make sure that the content of the peace agreements respects international public order and legality. If this is not ensured, the very peace process could be at risk in the future, given the possibility that foreign and international actors investigate abuses arguing that there was impunity, as the International Criminal Tribunal for the former Yugoslavia itself warned in the Furundžija case.

Symposium: Janelle Diller’s Response to Robert McCorquodale

by Janelle Diller

[Janelle Diller is Paul Martin Sr. Professor of International Affairs and Law at the University of Windsor Faculty of Law (Canada), on leave from the International Labour Organization (ILO). Her views do not necessarily reflect the ILO’s positions.This is the fourth post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here, the second, here, the third here and the fourth here.]]

By insisting on clarity in approaching the “rule of law” at the international level. Robert McCorquodale significantly advances the debate on this important subject. It is indeed inappropriate, as he cogently argues, to use the same institutional and procedural elements to assess the operation of the rule of law in national and in international systems. However, this argument does not necessarily lead to acceptance of two separate and distinct concepts relating to the rule of law — an “international rule of law” and a “national rule of law”.

An alternate approach to a bifurcated system considers the “rule of law” as a single umbrella concept that operates across international, national and other legal orders. This approach is reflected in UNGA Res. A/67/1 that applies the rule of law to all relevant actors “at the national and international levels” (McCorquodale at n.6). Instead of using the term “international rule of law”, the UNGA Resolution refers to “international order based on rule of law” and “rule of law at the international level”. This vision sees a single “rule of law” principle acting through pluralistic legal orders. This umbrella concept is sourced to shared meta-values and principles in international society. For example, the General Assembly recognized that “there are common features founded on international norms and standards which are reflected in a broad diversity of national experiences in the area of the rule of law”. As the Resolution reflects, these shared values and norms are given effect through instrumental frameworks that commit States and non-state actors to action at international and other levels, including public and private governance and dialogue mechanisms, and arrangements for sharing responsibility for development and other matters of common concern.

The umbrella concept of rule of law also permits room to accommodate both thin and thick elements in the understanding of the rule of law. The umbrella approach understands the rule of law itself as a general principle of international law based on the social and legal legitimacy of shared values and normative principles which are adapted in practice to particular circumstances.   As suggested by constructivist IR theory, values with social legitimacy emerge through a process of active participation of relevant social actors – in this case, States and relevant non-state actors in international society. Such values receive more concrete articulation through international norms and standards as a function of their predictability, generality and other criteria of legal legitimacy (Brunée and Toppe, Legitimacy and Legality in International Law). The legitimacy that undergirds the umbrella rule of law means that, as McCorquodale asserts, varying degrees of adherence to the rule of law do not mean there is no such value-laden concept. (p. 15) Indeed, as in the UNGA resolution, the linkage between legitimacy and practice leads to the further inquiry of whether and how the incomplete actualization of the elements of the rule of law at international and other levels is related to the degree of effectiveness – or ineffectiveness – of the instrumental frameworks for governance, cooperation and shared responsibility among State and non-state actors at international and other levels.

McCorquodale’s recollection of Bishop’s concepts and ideals of an international legal order tied to an “international rule of law” is a useful starting point that calls for updating. (p. 16) That listing, compiled a little more than a decade after the creation of the United Nations, reflects its foundational elements: reliance on law instead of arbitrary power; settlement by law instead of force; and cooperation for social aims in a way that promotes the values of freedom and human dignity. A recent comprehensive mapping of UN and other international instruments and non-state actor statements demonstrates the further development of that foundation. Four interdependent meta-values of a globalized system based on the rule of law were identifiable: freedom, dignity, equity/justice and peace/security. (2016 update of a 2003 ILO-sponsored study for the work of the World Commission on the Social Dimension of Globalization). The study of instruments covering a wide range of international concerns found that these meta-values are articulated in the form of concrete normative principles addressing such issues as: human rights, equality –as between individuals and separately between States, tolerance, democracy, and respect for the environment. To put these principles in practice, the study identified in the instruments a number of internationally-agreed frameworks by which States and non-state actors share responsibility for international development and other cooperation (including Bishop’s social aims as well as economic, environmental and crime prevention goals). Elements necessary for the effective governance of States, markets, and international organizations at internal and international levels were also ascertained.

The commitments in many of the instruments linked international and national action to help achieve the meta-values and normative principles. This integrated approach builds a coherence of purpose and synergy of operation in the application of the rule of law across the pluralistic legal system. As McCorquodale observed, human rights indeed form part of the system; at both international and national levels, they serve as normative outcomes and enabling processes to give effect to the meta-values of human dignity, freedom and equity. The procedural rights identified by McCorquodale – fair trial, liberty, equality and non-discrimination –indeed serve an important purpose as both rights and enabling conditions; however, the exclusion of other human rights in his construct of rule of law is subject to debate (p. 17).

McCorquodale rightly demands that the international system’s arrangements for compliance be assessed on its own terms, not in comparison with national institutions. The various common elements and purposes of the rule of law, are applied in different ways and means depending on the legal order concerned . His “patchwork” coordination of dispute settlement through the myriad of international courts and tribunals in important spheres rather than a single court is a useful perspective on the issue. However, this leaves unanswered how to achieve satisfactory compliance with the rule of law’s meta-value of equity/justice. The need for coherence in advancing compliance with the rule of law across important areas of common concern remains without a predictable solution in practice. The “web of discourse” across judicial bodies (McCorquodale, p. 23) does not yet adequately address the dissonance that arises in practice where mandates overlap (e.g., the European Court of Human Rights and the European Court of Justice). In addition, gaps in international judicial enforcement remain, notably in relation to the international responsibility of international organizations. The recent drafting of the International Law Commission’s articles on international responsibility, while focused on secondary rules, provides some normative advancement essential to advancement toward effective dispute settlement in this area. It suggests, for example, that the international responsibility of international organizations includes the responsibility not to commit, or to conspire to commit, violations of peremptory norms. The organizations are even to cooperate to bring such a breach to an end and to not recognize the unlawful situation as lawful or to aid or assist in maintaining the situation. (ILC articles 41 and 42, ILC Commentary to article 41, para 1).

Beyond peremptory norms, the ILC articles further advance the rule of law in the international organization’s legal order by applying rules of customary international law to the United Nations and other international organizations where such rules are relevant to the functioning entrusted to them. (ILC Commentary to article 41) It is important to keep in mind that the functions of the organization being exercised in a given situation play a determinative role in the nature of the international obligation. As an administrator of territory with functions including to maintain public safety and security and to fight impunity, the UN, acting as or through the pubic authority of the State, would be obliged to respect the customary international law and treaty law obligations of the State (by operation of pacta sunt servanda). This reasoning supports the Ombudsperson’s conclusion in Kosovo that, by creating UNMIK as a surrogate state, the UN had imposed all ensuing obligations of the State to secure human rights to everyone within its jurisdiction.   McCorquodale’s further proposal that norm-making in itself creates such obligations (p. 24) beyond administration of territory may only be relevant where the norm-making function concerns human rights norms based on the organization’s own Charter obligations (as in the case of the United Nations).

Symposium: Rule of Law, Internationally

by Joost Pauwelyn

[Joost Pauwelyn is a Professor of Law at the Graduate Institute of International and Development Studies in Geneva and Visiting Professor at Georgetown University Law Center. This is the fourth post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here, the second, here and the third here.]]

Both domestic and international normative regimes may limit our freedom and affect our daily lives. As a result, as Prof. McCorquodale implies, both need to be subject to the rule of law or mechanisms that keep the exercise of power accountable (in earlier work, I referred to this as “principled monism”). The fact that international affairs are, at this stage, not always conducted in line with the rule of law (just think of UN immunity and the Haiti cholera case) does not mean that there cannot be, or should not be, a rule of law at the international level.

Two tensions struck me, however, in Prof. McCorquodale’s article, when it comes to defining the rule of law operative at the international level. Firstly, the article, in my view correctly, distinguishes the rule of law from “the existence of, and compliance with, substantive international law obligations” (p. 15). On that ground, it does not include “all human rights in the rule of law”. Later on, however, the definition of international rule of law provided does include “access to justice to protect human rights”. Why only access to justice to protect some substantive rights and not others? Does this definition not imply, contrary to the author’s earlier statements, that human rights are part of the rule of law (if you must provide access to justice to protect human rights, surely, you must have human rights in the first place?). Conversely, does it put economic or contract rights outside of the access to justice commitment?

Secondly, the article, once again rightly so in my view, argues for the existence and application of a rule of law also at the international level. As noted earlier, when our freedom is limited, why should we care where the freedom-restricting norm comes from (national or international), who made it (states, parliaments, regulators or private standard setters) or what form it takes (formal or informal law)? Taking the rule of law seriously means it should apply across the board (see Pauwelyn, Wessel & Wouters, When Structures Become Shackles, 25 European Journal of International Law (2014) 733-763).

At the same time, Prof. McCorquodale keeps repeating that “the application of the concept and definition of the national rule of law to the international system is misconceived” (p. 15). To the extent this is meant to say that implementing the rule of law at the international level may take different forms and institutions, it is unobjectionable. If it means that the mere nature of the international system fundamentally changes the requirements or very definition of the rule of law, I find it difficult to accept (hence, I am not sure it is correct to define an international rule of law separately from a domestic rule of law). Accountability domestically may work in some forms (say, parliamentary approval or ministerial responsibility), at the international level in other forms (say, state consent, peer review or principal-agent controls). But that does not mean we need one definition of accountability domestically, another internationally. Indeed, domestic institutions may ensure or assist in the implementation of an international rule of law (Kadi case?). Conversely, international mechanisms may operationalize or facilitate domestic rule of law (think of a WTO or investor-state tribunal condemning due process or denial of justice violations or nudging local governments away from discriminating foreigners). In today’s context, maintaining bright line distinctions between domestic and international legal regimes, formal and informal law, public and private standard setting is increasingly artificial.

Another bifurcation, black or white distinction, that is common, and also Prof. McCorquodale implies it, but that is misleading, is that separating rule of law from politics (at p. 3: “the rule of law … is a crucial part of the refutation of international law as being either politics or lacking in normative legality”). Rule of law (reducing exit options) is enabled by politics (understood here as voice, contestation, control, state or popular expression of preferences); conversely, rule of law (less exit) can only be maintained with a sufficient level of politics (or voice). In The Transformation of World Trade (104 Michigan Law Review, 2005, 1-70) I explained this bi-directional interaction in the context of the global trade regime. It is not a story from politics to law, but law enabled by and constantly requiring politics. In my more recent The Rule of Law Without The Rule of Lawyers? (109 American Journal of International Law 761-805), I show how today’s (granted, limited) rule of law in the WTO is enabled by a relatively inexperienced pool of panelists, most of whom are government officials, many of whom are not even lawyers, a pool that is, however, representative and inclusive. The more experienced pool of investment arbitrators, far less diverse and more polarized, coming mainly from private practice, in contrast, led EU Trade Commissioner Malmström to tweet that: “We want the rule of law, not the rule of lawyers.”

In that article I used “rule of law without rule of lawyers” tongue in cheek, without really defining either notion. Prof. McCorquodale, in his article, took the extra step that, so far, many (including this author!) avoided. Doing so he clears a major path ahead, tackling in a clear but pragmatic way core questions of definition, implementation and monitoring of the rule of law irrespective of where the action takes place.

Symposium: The Rule of Law: Thick, But Not Too Thick?

by John Tasioulas

[John Tasioulas is Yeoh Professor of Politics, Philosophy and Law at the Dickson Poon School of Law, King’s College London and Visiting Professor of Law, University of Chicago Law School. This is the third post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here and the second, here.]

One can, without linguistic impropriety, use the phrase “the rule of law” to denote a number of significant though distinct ideas. Most expansively of all, it can be used to refer to the rule of good law: to all of the values, running the gamut from justice through charity to efficiency, that law should embody or promote. This value catalogue, although probably very long and diverse, would not lack utility, since not everything we value need fall within the legitimate ambit of legal concern.

Still, those who have seriously meditated on the rule of law usually had something more specific in mind than the rule of good law. They have typically sought to articulate the ideal of the rule of law in a way that satisfies two constraints. First, a constraint of pluralism: the rule of law is only one evaluative standard, among various others, for assessing laws and legal institutions. Second, a constraint of unity or coherence: the various demands of the rule of law must be the expression of a coherent underlying ethical concern. Given the pluralism constraint, that underlying concern cannot merely consist in the ultra-minimal one of relevance to the ethical assessment of law.

Notoriously, there are ‘thicker’ and ‘thinner’ articulations of the rule of law, the former often called ‘substantive’, the latter ‘formal/procedural’, but they all typically seek to satisfy the desiderata of pluralism and coherence.

Ronald Dworkin, a leading proponent of the thick view, characterizes the rule of law as ‘rule by an accurate public conception of individual [moral] rights’ (R Dworkin, A Matter of Principle (Harvard University Press, 1985), 11-12). Since not all of the values relevant to the assessment of law are rights-based considerations, the pluralist constraint is satisfied. Meanwhile, coherence is secured through the organizing idea of moral rights that are appropriately reflected in law. Yet Dworkin’s view seems too expansive insofar as it equates the rule of law with justice generally, at least to the extent that the latter bears on law. This is because a venerable tradition of thought – one that includes Grotius, Hume, Kant and Mill – construes the concept of justice as picking out just those moral duties that have associated rights.

Hence, the motivation to adopt a ‘thin’ account of the rule of law, one centring on a series of formal and procedural requirements, e.g. that laws be prospective, framed in general and accessible terms, not constantly changing, and applied consistently by officials (see the classic recent formulation in J. Raz, ‘The Rule of Law and its Virtue’, Law Quarterly Review 93 (1977): 195-211). The limited scope of the rule of law, thinly understood, means that a legal system can in principle satisfy it in spite of being deficient with respect to values such as human rights or democracy. But the up-side is that the desideratum of pluralism is secured. On the other hand, the coherence of the thin view consists in the fact that its formal and procedural requirements pay proper tribute to the autonomy and dignity of those subject to the law, enabling them to make important choices against the background of being able reliably to predict how the law is liable to impinge on their lives in various scenarios. Like many with ‘thick’ sympathies, McCorquodale finds the thin view all-too minimalist, dismissing it as giving an account not of ‘the rule of law’, but of ‘rule by law’.

McCorquodale’s article offers a rival conception of the rule of law, which he then proceeds to show is applicable to international law. I focus here only on the first stage of his argument. For McCorquodale, the rule of law incorporates four elements conceived as objectives: “to uphold legal order and stability, to provide equality of application of the law, to enable access to justice for human rights, and to settle disputes before an independent legal body” (p.8) We may interpret this account as seeking to fuse the merits of the thick and thin accounts, while jettisoning the limitations of each, by plotting an intermediate position between them. For, arguably, three of its elements would be endorsed by most adherents of the thin view, so that it is the addition of access to justice for human rights that constitutes the distinctive ‘value added’ of his account relative to the former view. Since, presumably, not all moral rights are also human rights, this distinguishes his position from the even thicker Dworkinian version, thus avoiding the objection that he equates the rule of law with justice insofar as it bears on law.

The first question about McCorquodale’s account centres on what he means by human rights. A close reading of his article suggests he has in mind those rights laid down in international human rights law. But how can the content of an ethical value or norm, such as the rule of law, be dependent on a contingent and fallible human creation, such as international human rights law? Isn’t human rights law properly seen as responsible to a background morality of human rights to which it gives inevitably imperfect expression? This is why Dworkin speaks of an ‘accurate public conception’ of moral rights. Moreover, even if we were persuaded by McCorquodale’s assurances that the relevant human rights legally bind all states, and even non-state actors such as corporations, the fact remains that they might not have been binding or could cease to be so in the future. Would the demands of the rule of law fluctuate in line with these changes?

Let’s assume that McCorquodale either revises his view so as to appeal to human rights of morality, rather than law, or else has that he has some compelling defence of his reliance on legal norms. The question then arises: why add human rights, in particular, to the familiar formalist constraints? After all, there are many values that the law should advance, other than human rights, such as peace, the preservation of nature, humanitarian concern, economic efficiency, and so on. Is it not simply arbitrary to conjoin human rights, from all these other legally-relevant values, to the formalist requirements? In other words, in trying to take a stand between thick and the thin, McCorquodale appears to fall foul of the desideratum of unity or coherence.

The likely response is that he is not incorporating all human rights into the rule of law, but only some of them. On the one hand, he claims that the rule of law requires access to justice for all human rights (p.18). On the other hand, he asserts that not all human rights are therefore part of the rule of law, instead only some are (p.7). Presumably, the included human rights will be that sub-set that suitably coheres with the three formalist requirements. The human rights that are ‘within the rule of law’, McCorquodale says, include ‘the right to a fair trial, the right to liberty, the right to equality and the right not to be discriminated against’. Their inclusion is on the basis that they are ‘procedural rights directly relevant to the rule of law’. (p.17).

But this move confronts two hefty challenges. The first is that it remains unclear what the principle of selection is for determining which human rights form part of the rule of law. McCorquodale’s answer seems to be that these are procedural rights, but the sense given to ‘procedural’ is fuzzy and overly expansive. It is not at all obvious in what sense the rights to liberty and non-discrimination, which figure in his list of incorporated rights, are procedural rights in a way that, for example, the rights to life or to political participation are not. Absent an adequate explanation, his account of the rule of law lacks coherence, even if we grant the somewhat nebulous thesis that while the rule of law enjoins the protection of all human rights not all such rights are part of the rule of law.

The second challenge is that, even with a convincing principle of selection, we might discover that his view ultimately collapses into a version of the thin view. This is because the latter view can be made to encompass some human rights, i.e. those that integrate with its concern to safeguard human autonomy and dignity by means of the predictability achieved through compliance with the familiar set of formal and procedural demands. The thin view of the rule of law, for example, incorporates a strong prohibition on retrospective criminal punishment, which itself reflects a corresponding human right. It also incorporates a demand of formal equality in the application of law – treating like cases alike – that also plausibly implicates a human right. So, the thin view seems compatible with a more limited, yet also more coherent, embrace of human rights within the rule of law ideal. If McCorquodale seeks a more generous embrace of human rights within the rule of law ideal, without going to the extreme of incorporating all of them, he needs to be explain how this can be achieved without sacrificing the overall coherence of the ideal, turning it into an ad hoc, but incomplete, list of legally-relevant values.

Symposium: Lies, Damned Lies, and the International Rule of Law

by Simon Chesterman

[Simon Chesterman is Dean and Professor at the National University of Singapore Faculty of Law. This is the second post in the Defining the Rule of Law Symposium, based on this article (free access for six months). You can find the first post here.]

Imprecision of meaning in international law is rarely accidental. Diplomacy is an architecture of compromise, with states routinely adopting malleable or self-serving definitions depending on their interests or aspirations.

So it is with the international rule of law. A decade ago, every member state of the United Nations recognized the need for “universal adherence to and implementation of the rule of law at both the national and international levels” and reaffirmed their commitment to “an international order based on the rule of law and international law.” Any term that can garner such universal support, from Norway to North Korea, is either so vague as to incorporate radically different interpretations of its content or so vacuous that there is no content to speak of.

Academics, generally, prefer precision. Robert McCorquodale is to be commended for his thoughtful and thought-provoking effort to pin down what the “international rule of law” can and should mean. In particular, he is right to push back against simplistic analogies between the concept of the rule of law at the domestic and international level. The function that law plays in a notional horizontal society of equals — the sovereign equality that is the founding myth of international law — is radically different from the role it plays in a vertically ordered state in which power is distributed by reference to a sovereign or in accordance with some form of constitution.

But this structural difference also points to the problem with McCorquodale’s approach to defining the international rule of law. He generously cites my own work in this area, which he correctly identifies as seeking to offer a functionalist approach to what the rule of law might do at the international level — viz. “the application of rule of law principles to relations between states and other subjects of international law”. Such a minimalist definition of the rule of law, he notes in passing, “will suit those states which are resistant to a broader understanding of international legal obligations” (p.289). This is a curious challenge, but points to the larger concern that I have with his own maximalist (thick, substantive) conception of the rule of law as necessarily encompassing the objectives of “legal order and stability; equality of application of the law; protection of human rights; and the settlement of disputes before an independent legal body” (p.292).

The inclusion of human rights in particular begs the question of whether a “thick” conception of rule of law is required in the first place. I will not revisit the thin/thick (or formal/substantive) debates here, but would align myself with Raz’s argument that a “thin” conception does not relegate one to the arbitrary exercise of power in a rule by law state. At the domestic level, this battle is played out when McCorquodale deploys Tom Bingham’s stirring response to Raz — though it is a response essentially based on a definitional shift that the rule of law means the rule of good law (pp.283-284).

At the international level, such a move is even more problematic. Indeed, warnings against a priori jumps to incorporate human rights can be found in the foundational human rights texts themselves. The Universal Declaration of Human Rights, which McCorquodale cites, provides in its preamble that “human rights should be protected by the rule of law”. Simply as a matter of construction it is tautological to define the rule of law as including the thing it is intended to protect. Similarly, McCorquodale cites (p.283) the Declaration on the Rule of Law, italicizing for emphasis the relevant phrases: “[We] reaffirm our commitment to the rule of law and its fundamental importance for … the further development of the three main pillars upon which the United Nations is built: international peace and security, human rights and development.” (The ellipsis, it should be noted, skips over the statement that the rule of law is also fundamentally important for “political dialogue and cooperation among all States”.)

McCorquodale sensibly does not seek to incorporate all human rights, but when he attempts to specify which to include, he falls back on the domestic law analogy that he has earlier so rightly spurned. Hence his list includes “the right to a fair trial, the right to liberty, the right to equality and the right not to be discriminated against” (p.293). All very important, but clearly linked to domestic law traditions and problems.

The justification for the inclusion of these specific human rights is linked to their presence in the “main global human rights treaties” and status as customary international law (p.293). The fact that these are obligations on states is not controversial, but folding them into a definition of the international rule of law raises additional problems when considering McCorquodale’s other contribution in his article: the attempt to find a definition of the rule of law that applies not only to states but also to international organizations and other subjects of international law.

It is arguable, for example, that the United Nations is subject to human rights obligations despite not being a party to any of the “main global human rights treaties”. Nevertheless, to assert that rule of law principles that apply to the UN and other international organizations incorporate such obligations must be based on more than a claim that such an assertion is “appropriate” (p.300). This is borne out in the Kadi cases and the UN’s Guiding Principles on Business and Human Rights, on which McCorquodale seeks to rely. In the former, the European Court of Justice applied rule of law principles in interpreting human rights obligations that are explicitly provided for within the EU legal system. In the latter, John Ruggie has been criticized by NGOs and activists precisely for his unwillingness to assert without foundation that corporations are bound by human rights obligations. (For more on this, see my “Lawyers, Guns, and Money”.)

McCorquodale does not go so far, but he concludes that section of his piece with a telling coda: “the application of human rights to the operations of the UN and other international organizations, as well as their applicability to non-state actors, are consistent with the human rights objective of the international rule of law” (p.303).

Does the rule of law really have a “human rights objective”? One can make a strong case that the rule of law makes human rights possible — that a world ordered by law is more predictable and stable, more prosperous and more harmonious, than one ordered solely by power. This is the transition that, over centuries, was made in states that went from “rule by man” to “rule by law” and now “rule of law”. But the content of that law at the international level is distinct from the ordering principle that establishes the conditions for law in the first place.

Diplomacy, once again, is an architecture of compromise. McCorquodale has made a significant contribution to debates over what the international rule of law can and should mean, though his conclusions are more normative than descriptive. My concern is that by seeking to blend form as well as substance, and to attribute to the rule of law an agenda that many states would equate with a Western liberal political bias, the structure’s foundations will be unable to bear the burden placed upon it.

This is not to suggest that human rights are unimportant. It is a signal achievement that human rights have moved from aspiration to norm in a mere seven decades, with all countries now submitting themselves to the Universal Periodic Review, for example. Such an achievement is clearly attributable in part to widespread acceptance of the rule of law at the national and international level. And, as member states agreed in the Declaration on the Rule of Law, human rights and the rule of law (and democracy) are “interlinked and mutually reinforcing” — but they are not the same thing.

The U.S.-Taiwan-China Relationship and the Evolution of Taiwan Statehood

by Lung-chu Chen

[Lung-chu Chen is an internationally recognized scholar and Professor of Law at New York Law School, specializing in international law, human rights, and the United Nations. He is the author of The U.S.-Taiwan-China Relationship in International Law and Policy (Oxford University Press, 2016), and An Introduction to Contemporary International Law: A Policy-Oriented Perspective, Third Edition (Oxford University Press, 2015).]

On May 20, 2016, Tsai Ing-wen will be inaugurated as the first female president of Taiwan. Tsai is the first member of the Democratic Progressive Party (DPP) to hold the presidency since the administration of Chen Shui-bian from 2000 to 2008. She will be the first DPP president to enter office with a DPP majority in the Legislative Yuan—a crucial condition for effective governance never afforded to Chen. The DPP has historically been associated with the movement for greater national independence for Taiwan, and, as many commentators have observed, the shift in power will reinvigorate the debate over Taiwan’s status under international law.

As I write in chapter two of my book An Introduction to Contemporary International Law: A Policy-Oriented Perspective, Third Edition (Oxford University Press, 2015) and in my new book The U.S.-Taiwan-China Relationship in International Law and Policy (Oxford University Press, 2016), the past thirty years have witnessed a profound and persistent movement of democratization—and Taiwanization—that runs counter to the People Republic of China’s (PRC) unrelenting claims of ownership over Taiwan. After decades of de facto independence and the emergence of a vibrant democratic society and national culture, the Taiwanese people will never be content to see their country become the next Hong Kong under a flawed “one country, two systems” formula. In my view, the time has come for the world community to support the Taiwanese people in achieving recognition of an evident fact: Taiwan is a state under international law, not a part of China.

Taiwan easily satisfies the traditional requirements for statehood as embodied in the 1933 Montevideo Convention: a permanent population, effective control over a territory, a government, and the capacity to interact with other states. Yet the realities of global power politics have kept Taiwan from being recognized as such. The PRC advances the fictitious claim that Taiwan is an integral part of China from time immemorial, but has never exercised control over Taiwan for a single day in its 67 years of existence since its founding in 1949. The situation is exacerbated by China’s campaign to strong-arm, coerce, and bribe states and international organizations to further isolate Taiwan. (The PRC’s insistence that Taiwan identify as a part of China as a condition to participating as an observer at the World Health Assembly provides a recent example.) Under the 2005 Anti-Secession Law, Chinese leaders arbitrarily empowered themselves to respond with force if Taiwan declared the obvious fact of its independence. The PRC’s unceasing threats of the use of force against Taiwan encroach upon the right of the Taiwanese people to self-determination and endanger the peace and security of the Asia Pacific and even the world community.

Some scholars, such as James Crawford in his The Creation of States in International Law (Oxford University Press, 2006), have written that Taiwan cannot be a state because it has not issued a declaration of independence from China. There is no precedent in international law for such a requirement. Even if there were one, President Chen’s 2007 application for UN membership in the name of Taiwan implicitly declared that Taiwan was an independent, sovereign, and peace-loving state that possessed the ability and willingness to carry out the purposes, principles, and obligations of the UN Charter. The move was tantamount to a “declaration of independence” addressed to all humankind.

I have advanced a solution to this stalemate based on a theory of the evolution of Taiwan statehood. I submit that Taiwan’s statehood is best understood in the context of an ongoing process of evolution propelled by the will of the Taiwanese people for self-determination and democracy. In chapter 12 of my new book, I stress that the time has come for an internationally supervised plebiscite on Taiwan’s future to be held in full view of the world community. This is not a new concept. It is a straight-forward application of existing international law.

It was not until 1887 that the Qing dynasty formally made Taiwan a province of China. Eight years later, following the Chinese defeat in the Sino-Japanese War of 1894-95, China ceded Formosa (Taiwan) and the Pescadores (Penghu) to Japan in perpetuity under the Treaty of Shimonoseki. In 1945, Japan surrendered control of Taiwan to the Allied forces, who delegated responsibility for military occupation of the island to the ROC army led by Chiang Kai-shek. In 1949, after the ROC’s defeat in the Chinese civil war, Chiang and his Kuomintang (KMT) supporters fled to Taiwan and established a regime in exile, imposing martial law, which lasted for 38 years until 1987. Taiwan remained a Japanese territory until the San Francisco Peace Treaty took effect in 1952. Under Article 2(b), Japan renounced all right, title, and claim to Taiwan. However, the Treaty’s framers were deliberately silent as to whom Japan was ceding the territory. It is important to note the San Francisco Peace Treaty—signed by 48 nations—superseded wartime declarations such as the Cairo Declaration and the Potsdam Proclamation.

In 1971, the United Nations General Assembly adopted Resolution 2758, expelling Chiang Kai-shek’s representatives and making the PRC the only lawful representative of China in the UN. In 1978, President Carter announced the United States would switch diplomatic recognition to the PRC while maintaining unofficial relations with the people of Taiwan. Following Carter’s announcement, (more…)