Iclr, Volume 29, Number 2

BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW

Vol. XXIX Spring 2006 No. 2

ARTICLE

O CANADA!: THE STORY OF RAFFERTY, OLDMAN, AND THE GREAT WHALE Oliver A. Houck

[pages 175–244] Abstract: In the late twentieth century, environmental policy swept the world, and among its primary instruments were processes for evaluating the adverse impacts of proposed actions. In all countries these processes quickly came into conºict with established bureaucracies, none more powerful and resistant to change than those in charge of water resources development. They also conºicted, in many cases, with established ideas of governance, right down to principles of federalism, judicial review, and the separation of powers. So it was in Canada, where in the late l980s three water resources development schemes, each one more enormous, initiated the commonwealth’s approach to environmental impact assessment and challenged the ability of the national government to protect environmental values at all. The litigation was heavy and prolonged. In the end, federal environmental authority gained a signiªcant foothold, but one insufªcient to protect the natural and human resources at stake. The litigation also illustrated, as has been the experience in the United States, the critical importance of citizen enforcement actions and judicial review in securing the objectives of environmental law. NOTES

BUILDING FORTRESS INDIA: SHOULD A FEDERAL LAW BE CREATED TO ADDRESS PRIVACY CONCERNS IN THE UNITED STATES-INDIAN BUSINESS PROCESS OUTSOURCING RELATIONSHIP? Bryan Bertram

[pages 245–268] Abstract: In the past few years, there has been a substantial surge in the use of Indian vendors by U.S. businesses for the performance of business processes. These types of engagements, referred to as business process outsourcing, routinely involve the transfer of sensitive personal data between U.S. and Indian ªrms. Thus, these types of transfers have raised concerns over the security of such data. The United States currently regulates these data transfers by industry sector. This policy contrasts sharply with other jurisdictions such as Canada, Japan, and the European Union where more broadly deªned regulations set principles for the protection of data generally. This Note will examine whether the United States should enact broader based legislation in order to regulate the growing trend of business process outsourcing to India and protect sensitive data that gives rise to personal privacy concerns.

WE ARE THE WORLD? JUSTIFYING THE U.S. SUPREME COURT’S USE OF CONTEMPORARY FOREIGN LEGAL PRACTICE IN ATKINS, LAWRENCE, AND ROPER Andrew R. Dennington

[pages 269–296] Abstract: Since 2002, the U.S. Supreme Court has consulted contemporary foreign legal judgments to help interpret, and dramatically expand, the substantive scope of the Bill of Rights in three landmark cases. It has not, however, explained when and why contemporary foreign legal materials are relevant to a principled, objective mode of constitutional interpretation. This Note represents an attempt to do so. It postulates two rationales that could retrospectively justify the Court’s methodology in Atkins v. Virginia (2002), Lawrence v. Texas (2003), and Roper v. Simmons (2005). One is grounded in a theory of Anglo-American common law, the other rests on jus cogens and customary international law. This Note then compares the two and concludes that the jus cogens theory could best address critics’ concerns that the use of foreign law will undermine U.S. sovereignty, reduce civil liberties in this country, and vastly increase judicial discretion.

HYDROELECTRIC POWER PRODUCTION IN COSTA RICA AND THE THREAT OF ENVIRONMENTAL DISASTER THROUGH CAFTA R. Victoria Lindo

[pages 297–322] Abstract: CAFTA’s ratiªcation threatens Costa Rica’s environmental integrity by permitting foreign investors virtual free reign to destroy its precious waterways through environmentally unsound methods of hydroelectric power production. While CAFTA contains provisions that appear to protect the environments of the Central American signatory states, it also contains provisions similar to NAFTA’s Chapter 11, which foreign investors have used to weaken environmental laws by suing those states that have dared to enforce them. This Note explores existing environmental laws in Costa Rica governing hydroelectric power production, including its privatization. It also discusses and compares NAFTA’s Chapter 11 to CAFTA’s Chapter 10 in order to illustrate the threat to Costa Rica’s waterways through private hydroelectric power production. This Note then argues that, in order to preserve its waterways, Costa Rica must not ratify CAFTA. Alternately, it argues that if Costa Rica does ratify CAFTA, the state should consider adopting both preventative and remedial measures to weaken its blow.

INTERNATIONAL SPAM REGULATION & ENFORCEMENT: RECOMMENDATIONS FOLLOWING THE WORLD SUMMIT ON THE INFORMATION SOCIETY Meyer Potashman

[pages 323–352] Abstract: Unsolicited bulk e-mail, or “spam,” is often called the scourge of the information age. Because of the cross-border nature of the Inter- net, both governments and the private sector are facing many challenges in combating cross-border spam. In recent years, through the World Summit on the Information Society (WSIS), the international community has committed itself to ªght spam on a global level through increased cooperation and enforcement of spam laws. This Note evalu- ates many of the issues involved in preventing cross-border spam, discusses the latest methods of enforcement in both the private and public sectors, and recommends an approach to the problem in light of the commitments made at WSIS.

FOR THE BEST INTERESTS OF THE CHILDREN: WHY THE HAGUE CONVENTION ON INTERCOUNTRY ADOPTION NEEDS TO GO FARTHER, AS EVIDENCED BY IMPLEMENTATION IN ROMANIA AND THE UNITED STATES Elisabeth J. Ryan

[pages 353–383] Abstract: International adoption is a common occurrence in today’s society. In order to address the dangers linked with international adoption such as baby trafªcking, the members of the Hague Conference on Pri- vate International Law produced the Hague Convention on Intercountry Adoption in 1993, setting forth a minimum base of standards that every ratifying government must abide by, placing the best interests of the child above all other considerations. The United States, via the Intercountry Adoption Act of 2000, is well on its way to fully realizing the Hague Con- vention mandates. Romania, however, has struggled to care for its children and subsequently imposed an international adoption ban. This Note argues that the Hague Conference members need to amend the Hague Convention in order to implement assistance for countries that may struggle with its mandates. It also argues that, in order to avoid more nuanced problems in implementation, the Hague Convention should clarify its vague language. Finally, it should include appeals and enforcement procedures so that conºicts between two countries over an adoption proceeding can be dealt with by a third party. O CANADA!: THE STORY OF RAFFERTY, OLDMAN, AND THE GREAT WHALE

Oliver A. Houck*

Abstract: In the late twentieth century, environmental policy swept the world, and among its primary instruments were processes for evaluating the adverse impacts of proposed actions. In all countries these processes quickly came into conºict with established bureaucracies, none more powerful and resistant to change than those in charge of water resources development. They also conºicted, in many cases, with established ideas of governance, right down to principles of federalism, judicial review, and the separation of powers. So it was in Canada, where in the late l980s three water resources development schemes, each one more enormous, initiated the commonwealth’s approach to environmental impact assessment and challenged the ability of the national government to protect environmental values at all. The litigation was heavy and prolonged. In the end, federal environmental authority gained a signiªcant foothold, but one insufªcient to protect the natural and human resources at stake. The litigation also illustrated, as has been the experience in the United States, the critical importance of citizen enforcement actions and judicial review in securing the objectives of environmental law.

Introduction In the late 1980s, environmental law came to Canada, riding on the backs of three water projects that, together, challenged the government’s approach to environmental protection right down to constitutional principles and the allocation of powers. The ªrst made environmental impact review law; the second made it constitutional; the third made it work. The litigation was ªerce and of ªrst impression. It was surrounded by equally ªerce politics and the passions of people so thoroughly con-

* Professor of Law, Tulane University. The research assistance of Christa Fanelli, Cashauna Hill and Tinnetta Rockquemore, Tulane Law School ’05, and Lena Giangrosso, ’07, is acknowledged with gratitude. For the author’s histories of similar United States environmental cases, see Richard J. Lazarus & Oliver A. Houck, Environmental Law Stories (2005); Oliver A. Houck, More Unªnished Stories: Lucas, Atlanta Coalition, and Palila/Sweet Home, 75 U. Colo. L. Rev. 331 (2004); Oliver Houck, Unªnished Stories, 73 U. Colo. L. Rev. 867 (2002); Oliver A. Houck, The Water, the Trees, and the Land: Three Nearly Forgotten Cases That Changed the American Landscape, 70 Tul. L. Rev. 2279 (1995–96).

175 176 Boston College International & Comparative Law Review [Vol. 29:175 vinced they were in the right that they did not need to explain. Envi- ronmentalists took to the streets; Crown and Provincial Ministers traded insults; First Nation tribes paddled a ºotilla in protest down the Hudson River to the island of Manhattan; some people went to jail. Ca- nadians then and since use words like “ªasco,” “embarrassment,” and “long litany of screw ups” to describe the action.1 At the end of the day, by hook and by crook, two of the projects were completed. The largest and most complex, however, ceded to another vision of the environment, governance, and, at bottom, what water is for. They are known as Rafferty-Alameda, Oldman, and the Great Whale. It is no accident that these extraordinary challenges arose out of water resource projects. There are two things about water that are all but irreconcilable. One is pragmatic: it is the lifeline of every civilization on earth,2 and so it has fallen to civilization’s engineers to wall off the ºoods, slake the droughts, divert the waters, and harness their power—the Aswan Dam, the Tennessee Valley Authority—some of the proudest monuments of humankind. And a few of the more regretta- ble. The other thing about water is spiritual. The rivers and lakes that refract the light, wash away sins and renew souls are the mark of bap- tism3 and the home of Siddhartha;4 they “make glad the City of

1 George N. Hood, Against the Flow: Rafferty-Alameda and the Politics of the Environment 128 (1994) (stating that there were a litany of screwups); Carol Goar, The Politics Behind Ottawa’s Concern for James Bay, Toronto Star, July 18, 1991, at A17 (sta- tiong that it was a ªasco and an embarrassment). 2 A colleague and water lawyer in the ancient capital of Sevilla has written wryly of “the peculiar tendency of rivers to ºow through cities.” Email from Maria Louisa Real, Counsel, Confederación Hidrograªca de Guadalquivir, to author (Dec. 12, 2004) (on ªle with author). 3 Marilynn Robinson, Gilead 24–25 (2004), stating: Ludwig Feuerbach says a wonderful thing about baptism. I have it marked. He says, “Water is the purest, clearest of liquids; in virtue of this its natural character it is the image of the spotless nature of the Divine Spirit. In short, water has a signiªcance in itself, as water; it is on account of its natural quality that it is consecrated and selected as the vehicle of the Holy Spirit. So far there lies at the foundation of Baptism a beautiful, profound natural signiªcance.” Id. 4 Hermann Hesse, Siddhartha 118 (Hilda Rosner trans., New Directions 1951) (stating “there was a man at this ferry who was my predecessor and teacher. He was a holy man who for many years believed only in the river and nothing else. He noticed that the river’s voice spoke to him. He learned from it; it educated and taught him . . . .”); see also Marga- ret Mead, People and Places 266–67 (1959):

2006] O Canada! 177

God.”5 We are made of water. Every culture reveres it. There is something terrible about burying aquatic systems and their inhabitants, entire ways of life, under a hundred miles of a hundred feet of dark- ness.6 For all time. Seen from this end of the spectrum, the engineer’s triumph is a loss too painful to bear. The environmental movement in the United States was born largely of that pain. In the early twentieth century the Sierra Club, until that point a gentriªed collection of weekend hikers, turned radical at the prospect of converting a granite-peaked, waterfall-studded valley the size of Yosemite into the Hetch Hetchy reservoir,7 and became the most powerful environmental voice in the United States. Fifty years later it would lose its federal tax exemption for lobbying against another government water project, Glen Canyon dam on the Colorado River.8 The ªrst U.S. environmental lawsuit in modern times opposed the Storm King Mountain power plant that threatened to kill millions of aquatic organisms in the Hudson River,9 and the ªrst case to deªne impact assessment and send environmental law into orbit arose over thermal dis- charges from a nuclear power plant into the Chesapeake Bay.10 Water

Another religious practice which has come down through history is the use of blessed water for special purposes—to purify the thing it touches, to remove evil, or simply to bless and purify a person who wishes to pray or who has ªnished praying. However, the idea that water is pure and can be used in special ways connected with religion is such a natural one for human beings to have when they are trying to get closer to the supernatural world that we believe many different peoples have thought of it. Id. 5 Psalms 46:4 (King James) (“There is a river, the streams whereof shall make glad the city of God, the holy place of the tabernacles of the Most High.”). 6 See Hal Kane, The Dispossessed, World Watch, July/Aug. 1995, at 7, stating: A World Bank study has found that public works projects in the developing world now force more than 10 million people out of their homes every year. . . . Large dams—about 300 are built each year–account for nearly half the total. Even as objections to these projects are raised on environmental, as well as humanitarian, grounds, even larger dams are being designed. Id. 7 See Stewart L. Udall, The Quiet Crisis 121–22 (1963). 8 Thomas B. Allen, Guardian of the Wild: The Story of the National Wildlife Federation, 1936–1986, at 147 (1987). 9 See generally Scenic Hudson Pres. Conference v. Fed. Power Comm’n, 354 F.2d 608 (2d Cir. 1965). For background on this case, see Unªnished Stories, supra note *, at 869–80. 10 See generally Calvert Cliffs’ Coordinating Comm. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109 (D.C. Cir. 1971). For background on this case, see Unªnished Stories, supra note *, at 876, 878, 880–93. The court’s opinion, which deªned the requirements for environmental impact assessment, was followed by a string of lawsuits challenging the U.S. Army

178 Boston College International & Comparative Law Review [Vol. 29:175 was a primary driver for environmental law in the United States. As it would be for Canada.

I. Water on the Plains: The Rafferty-Alameda Dams Those who came to settle North America did not ªnd it easy any- where, but some particularly harsh scenarios played out on the western prairies which cut a wide swath north from Kansas and Nebraska, through the Dakotas and across Alberta, Saskatchewan, and Mani- toba.11 Lured on by railroad promotions that combined fantasy with outright fraud, the prairie settlers broke the earth, ploughed under the native grasses, planted wheat, lived in houses of sod, endured unimag- inable winters, and prospered or failed by the rains. “[R]ain would follow the plough” declared the agronomists of the day,12 the theory being that the release of moisture from cultivated soil seeded the atmosphere and prompted an ever-increasing cycle of precipitation. Of course, the opposite happened. Severe droughts in the late 1800s bankrupted platoons of settlers, leading, among other things, to a call by U.S. Geological Survey chief John Wesley Powell for the water-based zoning of the West.13 Railroad and real estate boomers, threatened by the proposal, replied by driving Powell from ofªce, but they seized on one part of his vision: a series of water supply dams to feed their land scheme promotions. So began federal water resources development in the western United States.14 Thirty years later, the dust bowl threw a serious curve into settlement on the plains, a curve from which they have not since fully recovered and perhaps never can. Storms of snow and dirt rose from the prairies, blackened the skies and, dumped loads that buried telephone poles as far east as Chicago and Albany.15 A Canadian who lived through it recalls a joke about the Saskatchewan farmer who

Corps of Engineers and the Tennessee Valley Authority’s water resources projects directly. See infra notes 50–51. 11 For classic descriptions of the hardships of prairie life, see, e.g., Willa Cather, O Pioneers! (Houghton Mifºin 1988) (1913); Maria Sandoz, Old Jules (Hastings House 1960) (1935). 12 Udall, supra note 7, at 94. For a detailed critique of water resources development in the western United States, see generally Marc Reisner, Cadillac Desert (1986). 13 See generally Wallace Stegner, Beyond the Hundredth Meridian: John Wesley Powell and the Second Opening of the West (1982) (describing the life and proposals of John Wesley Powell). 14 Id.; see also Udall, supra note 7, at 88–96. 15 Ian Frazier, Great Plains 196–97 (1989). 2006] O Canada! 179

went out to cultivate his land and ended up ªnding it in Manitoba.16 When the winds ªnally died, the answer was: more dams.

A. A Case for the Engineers

The [U.S.] Army Corps of Engineers, arguably the preeminent dam builders in the world, told us that it would take them eighteen years to build the Rafferty and Alameda dams. . .[T]he Saskatche- wan engineers responded with more than a little bravado and smug nationalism that it would only take us three years. They were wrong. —George Hood, project manager, Rafferty-Alameda dams 17 George Hood lived the saga of the Rafferty-Alameda dams. He helped plan them, promoted them, and suffered along with the other occupants of the rollercoaster as they bounced among provincial and national authorities and then the courts. He begins an account of his experiences with the observation, “The predominating unit of time in Saskatchewan is not the minute or the hour, or even the day, but the season.”18 He means the growing season, of course, and for the farms near Estevan in the south of the province it has been a hard ªght to keep a crop of wheat on wafer-thin topsoil laced with stones and rocks from the glacial valley of the Souris River. The landscape he saw was “lacking in natural beauty.” Rather, it was strewn with oilªeld pumpjacks and pipelines, spoil mounds from coal mines, two power plants “frequently shrouding the city in an acidic haze,” and a hodge- podge of small dams and culverts designed to convert the feast-or- famine waters of the Souris river to human use.19 Clearly, to Hood, this was a place that could use some engineering. Unlike most western rivers, the Souris is fed only by rainfall, so in wet years it can produce ºoods several miles wide, and the years in between will be so dry you can step across it in dress shoes.20 Respecting no borders, the river rises in Saskatchewan, snakes South into North Dakota, and then back up into Manitoba. The United States had been busy on its stretch of the Souris, building dams for irrigation and ºood control, and by the 1960s it had twenty-one dams in the watershed making claim to most of its ºows. It was not until the 1970s that Saskatche-

16 Hood, supra note 1, at 6. 17 Id. at 2. 18 Id. at 5. 19 Id. at 8. 20 See id. at 11–12. 180 Boston College International & Comparative Law Review [Vol. 29:175 wan began asserting the Canadian claim, including one rather aggressive proposal to build a canal rerouting the river away from the United States entirely. When, in 1969, the river poured down to ºood the capi- tol of North Dakota for forty straight days, the Americans were willing to see Canada put in some dams of its own. They found their champion in a border rancher who rode into the North Dakota legislature on the issue of taming the Souris, Orlin “Bill” Hanson. Hanson was a friend and neighbor of the future deputy premier of Saskatchewan, Eric Berntson. Berntson represented residents along Moose Mountain Creek, future site of the Alameda Dam. Delivering a dam to your home district is The Prize. The politics were right for the deal. The planners went to work. Confronted by the unhappy fact that the anticipated beneªts to agriculture would not offset project costs, they added a power plant, boat ramps and other bells and whistles.21 They also consulted with their U.S. counterparts, the U.S. Army Corps of Engineers, who told them that a project of this size would take decade to complete, maybe two.22 The Canadians thought the ªgure crazy; they could do it in three years.23 They were off by ªfteen. Finally, in 1986, Premier Devine unveiled a plan for two dams, the Rafferty and the Alameda.24 There was a glitch, however. The projects would have to pass Saskatchewan’s environmental review process, and the early feedback was acerbic. The proposal contained no beneªt-cost analysis, no description of mitigation measures, no opera- tional plans, and quite a few unsubstantiated claims.25 Indeed, there was no indication of where the Alameda dam would be built at all. Rather hard to conduct an adequate review on that record. Respond- ing to these criticisms, the Rafferty-Alameda team went into a hurry- up offense, according to engineer Hood a “sixteen week blitz” to get its environmental documents in order.26 They knew what they were going to do. It was simply a matter of jumping through the hoops.

21 See generally id. 22 Hood, supra note 1, at 2. The U.S. Army Corps of Engineers’ reputation for project construction is matched by its reputation for manipulating project purposes, and costs and beneªts, in order to obtain the necessary approvals. See Michael Grunwald, A River in the Red; Chanel Was Tamed for Barges That Never Came, Wash. Post, Jan. 9, 2000, at A-1. See generally Arthur E. Morgan, Dams and Other Disasters: A Century of the Army Corps of Engineers in Civil Works (1971); Nat’l Wildlife Fed’n & Taxpayers for Common Sense, Crossroads: Congress, the Corps of Engineers and the Future of America’s Resources (2004). 23 Hood, supra note 1, at 2. 24 Id. at 38. 25 Id. at 41. 26 Id. at 47. 2006] O Canada! 181

B. A Case for the Sportsmen

Rafferty-Alameda Dam Could Reduce Bird Populations By 30,000, Report Says. —Headline, Toronto Star, 1991 27 The highest of the hoops was a rising environmental awareness across Canada and a particularly active local sportsmen’s organization, the Saskatchewan Wildlife Federation. Sportsmen’s organizations go way back in U.S. history to the days of Teddy Roosevelt, when they were instrumental in the elimination of market hunting.28 Alarmed by the devastation of waterfowl and wetlands during the droughts of the 1930s, duck hunters promoted some of the ªrst conservation laws of the twentieth century, including the purchase and protection of the wetlands these birds needed to breed, feed, and sur- vive.29 In the 1940s and ’50s, watching new threats to their hard-won resources from dams and canals, they lobbied through a law, noble in purpose if short on results, that declared ªsh and wildlife conservation a co-equal purpose of water resources development.30 In the 1960s, hunting and ªshing organizations were the ªrst to protest, then oppose, a new construction binge by the Corps of Engineers, Bureau of Reclamation, and like-missioned agencies. They had their own lobby in Washington D.C., the National Wildlife Federation, which had looked at new-fangled environmentalism with some suspicion but was about to catch the wave.31 When, in the early 1970s, public interest law ªrms for environmental protection such as the Na- tional Resources Defense Council and the Environmental Defense Fund appeared on the scene and started winning lawsuits (and head-

27 Toronto Star, July 5, 1991, at D10. 28 For background on sportsmen’s organizations, see William T. Hornaday, Our Vanishing Wild Life: It’s Environment and Preservation 53–61 (1913); George Rei- ger, Hunting and Trapping in the New World, in Wildlife and America: Contributions to an Understanding of American Wildlife and its Conservation 42, 44, 46–47, 52 (Howard P. Brokaw ed., 1978); Richard H. Stroud, Recreational Fishing, in Wildlife and America, supra, at 53–84 and see generally Allen, supra note 8. 29 See, e.g., Pittman-Robertson Wildlife Restoration Act, 16 U.S.C. § 669 (West 2006); Fish and Wildlife Coordination Act, 16 U.S.C. § 661–667 (West 2006); Migratory Bird Hunting Stamp Act, 16 U.S.C. § 718 (West 2006); Dingell-Johnson Sport Fish Restoration Act, 16 U.S.C. § 777 (West 2006). See generally Michael J. Bean & Melanie J. Rowland, The Evolution of National Wildlife Law (3d ed. 1997). 30 See 16 U.S.C. § 661–667. 31 See generally Allen, supra note 8. 182 Boston College International & Comparative Law Review [Vol. 29:175 lines), the National Wildlife Federation followed suit.32 Within a few years it had a full docket, primarily against dams, channels, and other water projects.33 Meanwhile, north of the border, the Canadian Wildlife Federa- tion, a loose conglomerate of state hunting and ªshing groups with barely the budget to hold an ofªce together, moseyed forward in no particular hurry.34 Onto the scene walked Ken Brynaert, an entrepre- neur with ideas to grow the organization to ªt the times. He had a plan; all he needed was $150 thousand in startup money.35 “It shouldn’t take a week,” he told the Canadian Federation’s board.36 “You’ve got a week” said its President, Orville Erickson.37 Orville was also President of the Saskatchewan Wildlife Federation and a conser- vationist (the word “environmentalist” came very slowly to the sportsmen’s community) to the core. He and Brynaert would power the national group forward. And he would come to hate the Rafferty- Alameda dams.38 In the short run, however, Brynaert had exactly seven days to make his case for a new Canadian Wildlife Federation. He hopped the next ºight south to Washington D.C. and met with the National Wild- life Federation’s chief executive, Tom Kimball. Kimball, formerly director of the ªsh and game departments in both Arizona and Colo- rado, had enormous credibility in the sportsman’s world. He was also a devout Mormon with a ºair for the malaprop (he spoke of “expo-

32 Personal observation: The author served as General Counsel to the National Wild- life Federation during this time. 33 See generally Cape Henry Bird Club v. Laird, 484 F.2d 453 (4th Cir. 1973) (challenging the environmental impact statement on the Corps dam); Avoyelles Sportsmen’s League v. Alexander, 473 F. Supp. 525 (D. La. 1979) (challenging a private defendants’ land-clearing operations under the Clean Water Act); S. La. Envtl. Council v. Sand, 629 F.2d 1005 (5th Cir. 1980) (challenging the environmental impact statement on the Corps navigation project); Nat’l Wildlife Fed’n v. Gorsuch, 530 F. Supp. 1291 (D.D.C. 1982) (challenging the EPA determination that water quality changes caused by dams were not required to be regulated under the National Pollutant Discharge Elimination System established by § 402 of the Clean Water Act), rev’d 693 F.2d 156 (D.C. Cir. 1982); La. Wildlife Fed’n, Inc. v. York, 761 F.2d 1044 (5th Cir. 1985) (dealing with the regulation of dredge and ªll under the Clean Water Act); S.C. Dep’t of Wildlife & Marine Res. v. Marsh, 866 F.2d 97 (4th Cir. 1989) (challenging water quality impacts of Corps dam). 34 Telephone Interview with Ken Brynaert, former Executive Director, Canadian Wild- life Federation (May 20, 2005). The description that follows of the Canadian Wildlife Fed- eration is taken from the interview. 35 Id. 36 Id. 37 Id. 38 Id. 2006] O Canada! 183 tential growth”) and a keen sense for the right thing to do. Kimball’s Federation had members, money, and a good set of monthly maga- zines. He lent Brynaert the monies he needed to get started, put In- ternational Wildlife Magazine at his service for new Canadian members, and welcomed him to the family. Where Brynaert met the Federation’s environmental lawyers and got the idea. The Canadian Wildlife Federation case against Rafferty-Alameda was right out of the environmentalist bad-moments-in-water-development playbook. In the ªrst place, it was ºooding out prime wildlife habitat; nearly everything that swims, ºies, or walks on four legs in the western plains is found in or on the banks of rivers like the Souris, the Platte, and the San Pedro. In the second place, it was a rip-off, funneling more than $100 million in public monies to a handful of ºoodplain farmers looking to make more money out of wet crops like sugar beets that had no business on the western plains in the ªrst place. The rest of the project purposes were window dressing. It would be a lot cheaper to pay the farms at issue to set back from the river. Wetlands and waterfowl up and down the continent had taken a huge beating to agriculture over the last century, and now to the dam building boom. Rafferty- Alameda could take 30,000 more. It was time to draw the line. In 1987, at a joint meeting of the Canadian and National Wildlife Federations in Quebec City, a resolution was passed to oppose the dams.39 More aggressive, they passed a censure motion against the Canadian Minister of the Environment for failing to assert federal jurisdiction over the projects. Brynaert then delivered the censure to the Minister in person, at his hotel room in Quebec. More aggressive still, he was going to litigate.

C. The Government Gets the Call

In the Canadian context, what the environmental assessment process applies to, particularly at the federal level, has been determined as much by how it evolved as anything else. —George Hood, project manager 40 The governance of Canada is pretty much what Americans thought they were creating 200 and some years ago, a partnership of states and federal interests in which the federals were conªned to a very small box, and the rest was left to state capitals. Of course, the

39 Id.; see also Hood, supra note 1, at 47. 40 Hood, supra note 1, at 59. 184 Boston College International & Comparative Law Review [Vol. 29:175

United States began to depart from this model as early as 1787 when it traded the Articles of Confederation for the Constitution and has been departing ever since with new orbits of national authority to meet at ªrst economic, then social, and now security needs. Canada, meanwhile, has clung to the states-rights model, tested increasingly by more global imperatives. One of the stiffest tests would be environmental policy. There was another understanding as well: the judiciary. Courts at all levels were to resolve disputes before them; they did not set policy, nor did they gainsay the policies of elected ofªcials. The United States broke this mold too, early on, when the Supreme Court in Marbury v. Madison41 declared itself competent to declare policies enacted by the legislature unconstitutional, and over the last century U.S. courts have become players in racial integration, school prayer, abortion rights, and other sensitive social issues. Canadian courts, as those of mainland Europe and England, have viewed these events with alarm and resisted all initiatives to join the fray. Environmental law would put this philosophy to another severe test. The root problem was as follows: Neither the delegates to the U.S. Constitutional Convention of 1787 nor the drafters of the Cana- dian Constitution Act of 1867 had the slightest notion of environmental problems nor concern to address them. No language even close to the word “environment” appears in either document. Under constitutions establishing governments of limited powers, then, authority to protect the environment would not seem to lie at the federal level at all. The United States would come to a different answer slowly, over time, through an expansive interpretation of the federal power to regulate interstate commerce,42 an interpretation under serious counter-attack today by those who would de-nationalize environmental law.43 Canada would take a different route. As in the United States, the Canadian Constitution spells out national powers with precision, including a few related to the kind of environmental issues that would be waiting 100 and some years down

41 See generally Marbury v. Madison, 5 U.S. 137 (1803). 42 For a description of Commerce Clause challenges to environmental law, see Robert V. Percival, “Greening” the Constitution—Harmonizing Environmental and Constitutional Values, 32 Envtl. L. 809, 830–33 (2002) and see generally Christine A. Klein, The Environmental Commerce Clause, 27 Harv. Envtl. L. Rev. 1 (2003). 43 See generally Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001) (implying that regulation of intra-state wetlands is beyond federal constitutional authority); Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (challenging federal protection of endangered species). 2006] O Canada! 185 the road. The most relevant of these national powers was the authority to legislate on navigation, ªsheries, and federal lands.44 At the same time, the Constitution gave the provinces exclusive powers over, among other things, public works, property, and the “development of natural resources,” including the production of electrical energy.45 Dams come to mind. While the Canadian government had some foundation for passing laws to protect the ªshery, and perhaps even to prevent its contamination by pollution,46 it was on thin ice when it came to enacting general environmental law. And the ªrst of the new environmental laws to sweep the United States, Canada, and the rest of the world were very general indeed: environmental impact review. The lead vehicle was the U.S. National Environmental Policy Act of 1969 and its principal requirement, an environmental impact statement for major federal actions. Canada would inch toward the same objective, very gingerly. The federal government in Ottawa was small, underpowered, and far away from nearly every activity in Canada that impacted the environment.47 Environmental protection in the 1970s had acquired some cachet, but it had also acquired some strong opponents including, for openers, a Who’s Who of U.S. and Canadian industry. On thin ice

44 Constitution Act, 1867, 30 & 31 Vict. Ch. 3 (U.K.), as reprinted in R.S.C., No. 5, pt. VI, § 92 (App. 1985) (describing Exclusive Powers of Provincial Legislatures). For further information on federal environmental jurisdiction in Canada, see Marcia Valiante, “Wel- comed Participants” or “Environmental Vigilantes”? The CEPA Environmental Protection Action and the Role of Citizen Suits in Federal Environmental Law, 25 Dalhousie L.J. 81, 91–96 (2002) and see generally John Borrows, Living Between Water and Rocks: First Nations, Environmental Planning and Democracy, 47 U. Toronto L.J. 417 (1997), and Sven Deimann, Comment, R. v. Hydro-Quebec: Federal Environmental Regulation as Criminal Law, 43 McGill L.J. 923 (1998). 45 Constitution Act, 1867, 30 & 31 Vict. Ch. 3 (U.K.), as reprinted in R.S.C., No. 5, pt. VI, § 92A (App. 1985) (stating that the legislature may exclusively make laws regarding non- Renewable Natural Resources). For further information on federal environmental jurisdiction in Canada, see generally Borrows, supra note 44; Deimann, supra note 44; Valiante, supra note 44. 46 See generally The Queen v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401. 47 Yves Corriveau, Citizen Rights and Litigation in Environmental Law NGOs as Litigants: Past Experiences and Litigation in Canada, in Environmental Rights: Law, Litigation & Access to Justice 117, 117–18 (Sven Deimann & Bernard Dyssli eds., 1995), stating: Canada is the second largest country in the world: from east to west, 5514 kilometers separate Cape Spear in Newfoundland from the Yukon-Alaska border. It is therefore difªcult for the 86 people responsible for enforcing the laws of Environment Canada and the personnel of the provincial Environ- ment Ministries to maintain an adequate surveillance of all of the areas within their jurisdictions. • Id. 186 Boston College International & Comparative Law Review [Vol. 29:175 constitutionally and looked on with suspicion by provincial governments jealous to retain their own autonomy, Ottawa’s caution towards imposing environmental impact requirements was heightened by its perception of what was unfolding south of the border,48 where environmentalists had taken the same requirements to court to challenge government programs with alarming success. The American lawsuits led to delays and injunctions while new impact statements were written and their often-embarrassing contents were exposed to the press. Among the casualties of this litigation were water resources development projects, on which elected politicians depended to please con- stituents and ªll campaign coffers. The very ªrst U.S. environmental impact statement cases enjoined the Cross Florida Barge Canal,49 Gil- ham Dam,50 and the Cache River Bayou DeVieu,51 all big price-tag projects of very doubtful merits.52 Message to Canada from the United States: environmental impact review can be dangerous to your political base, treat with caution. And so Canada did.53 Tentatively, feeling its way, the federal government issued a cabinet directive in the early 1970s creating a federal Environmental Assessment and Review Process, unfortunate acronym “EARP,” run by a new Federal Environmental Review Ofªce, even more

48 Id. at 119. 49 See generally Envtl. Def. Fund, Inc. v. U.S. Army Corps of Eng’rs, 324 F. Supp. 878 (D.D.C. 1971). 50 See generally Envtl. Def. Fund v. Tenn. Valley Auth., 339 F. Supp. 806 (D. Tenn. 1972), aff’d, 468 F.2d 1164 (6th Cir. 1972). These proceedings continued later. See generally Envtl. Def. Fund v. Tenn. Valley Auth., 371 F. Supp. 1004 (D. Tenn. 1973), aff’d, 492 F.2d 466 (6th Cir. 1974). 51 See generally Envtl. Def. Fund, Inc. v. Hoffman, 421 F. Supp. 1083 (D. Ark. 1976), aff’d, 566 F.2d 1060 (8th Cir. 1977). 52 Indeed, NEPA disclosures lead to the eventual cancellation of both the Cross Florida canal and the Cache River project. See supra notes 49, 51. 53 G. Bruce Doern, Getting It Green: Case Studies in Canadian Environmental Regulation 12 (1990), stating: Environment Canada’s inherent capacity was blunted from 1975 until the late 1980s by four dynamics. The ªrst was an inability to establish and carry out rigorous compliance procedures. The second was a weakening through budget cuts of an already overtaxed scientiªc and investigative capacity. The third was the federal government’s insecurity in its relations to the provinces and among its own departments. And ªnally, Environment Canada was itself primarily a technical department, possessing only limited economic and even, to some extent, legal literacy and analytical capacity. Directly or indirectly, all of these elements were indicators of the low position that environmental policy and implementation occupied on the political and economic agenda. • Id. 2006] O Canada! 187

unfortunate acronym “FEARO.”54 The process, so written, went into hiding.55 In 1979, propelled forward by an increasingly restive public, the Parliament tried to move the ball forward, directing the federal Minister of the Environment to coordinate federal impact reviews and issue guidelines for doing them.56 On the campaign trail, the conservative party even promised to legislate an environmental review process itself, only to lose its ardor upon winning the elections.57 Instead, ªve years later, the Environment Ministry issued an administrative Guide- line Order asking that the “initiating department” undertake a “self assessment process” to “ensure that the environmental implications of all proposals for which it is the decision making authority are fully considered.”58 This Order would set the rules of the game when Rafferty- Alameda and its companion water projects came on stage. The guideline process was simple.59 The federal agency constructing or licensing a project did a ªrst screen, with the assistance of FEARO, to decide if it had environmental problems. If not, end of story. If so, FEARO appointed an Environmental Assessment Panel of experts with relevant knowledge and no conºict of interest.60 After its own investigation and public consultation, the Panel reported its ªndings and recommendations back to the construction agency and the environment minister.61 Should these two authorities reach different conclusions, the matter went to the Cabinet itself.62 It was a clean-looking drill and, for those familiar with NEPA and the U.S. experience with a process controlled far more exclusively by development agencies, one that promised fair results. If in fact it could be enforced. Which is where the Rafferty and Alameda cases came in.

54 See Environmental Assessment and Review Process Guidelines Order, SOR/84–467 (1984) (Can.), available at http://www.ceaa-acee.gc.ca/013/0002/earp_go_e.htm [hereinafter EARP Guidelines Order]; Roger Cotton & John S. Zimmer, Canadian Environmental Law: An Overview, 18 Can.-U.S. L.J. 63, 75 (1992). 55 See Constance D. Hunt, NEPA’s Legacy Beyond the Federal Government, 20 Envtl. L. 789, 793 (1990). 56 See id; Cotton & Zimmer, supra note 54, at 75. 57 See generally EARP Guidelines Order, supra note 54. 58 Id. § 3. 59 See id.; Cotton & Zimmer, supra note 54, at 75–76. The description of the EARP guideline process that follows is taken from these sources. 60 EARP Guidelines Order, supra note 54, §§ 20–22. 61 Id. § 31. 62 Can. Wildlife Fed’n Inc. v. Canada (Minister of the Env’t), 4 C.E.L.R. (N.S.) 201, 225 (1989) (T.D. Can.). 188 Boston College International & Comparative Law Review [Vol. 29:175

D. In with a Bang: Rafferty-Alameda I

[T]here is an irony in these proceedings which could make a cynic cackle with glee. —Canadian Wildlife Federation v. Minister of the Environment 63 Rafferty-Alameda was the ªrst of the dam projects to court, and the suits came in waves. The initial lawsuit was ªled by one Donald Wilkinson, a rancher who sought to quash a set of public hearings on the dams scheduled during peak ranching season.64 He pointed out that he had only sixty days to prepare comments on a new impact statement of 1805 pages (the Rafferty-Alameda team had indeed been busy).65 Further, the public hearings seemed timed to minimize op- posing voices and unwelcome news. When a member of the provincial parliament confronted Premier Devine with complaints about the schedule from the Stock Growers Association, he was told that “history will show what you know and don’t know about the stock growers would ªll a large room, my boy.”66 My boy. It was the attitude, and it would infect everything about the process from then on. When ques- tioned about the reason for submitting two separate environmental reviews for the dam projects and a third for the power station, although they were connected to each other at the hip, indeed each justiªed the other, provincial Minister of the Environment Swan replied: “That’s the way they came to us; they’ll be dealt with in that manner.”67 End of discussion. Answers like this from public ofªcials tend to breed their own opposition. After a short hearing, the Saskatchewan Court of Queen’s Bench dismissed Wilkinson’s suit on technical grounds: since the environmental board holding the hearing would make no legally binding decisions, it didn’t matter if the proceedings were rigged.68 Further, the ranchers could always submit their comments later. The ensuing public hearings on the Rafferty-Alameda impact statement were the short-

63 Can. Wildlife Fed’n Inc., 4 C.E.L.R. (N.S.) at 213, 225. 64 Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard) (22 Sept. 1987) (Mr. Lyons) 4–7, available at http://www.legassembly.sk.ca/hansard/21L1S/87-09-22.pdf [hereinafter 22 Sept. Proceedings]. See generally Wilkinson v. Rafferty-Alameda Bd. of In- quiry, [1987] 64 Sask. R. 170. 65 Wilkinson, 64 Sask. R. at 171. 66 22 Sept. Proceedings, supra note 64, at 5–6. 67 Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard) (3 July 1987) (Mr. Shillington) 19–20, available at http://www.legassembly.sk.ca/hansard/21L1S/87-07- 03.pdf. 68 See Wilkinson, 64 Sask. R. at 172. 2006] O Canada! 189

est in history for an environmental review.69 But only the opening shot had been ªred. Next into the fray came a local coalition called the Association to Stop Construction of the Rafferty Alameda Project, a.k.a. SCRAP.70 Fol- lowing Minister Swan’s environmental clearance, SCRAP challenged the adequacy of the underlying review under the Saskatchewan Envi- ronmental Assessment Act. The government responded with a familiar litany of defenses, starting with the proposition that SCRAP had no standing to bring the case.71 The court found SCRAP’s members, which included several local landowners, sufªcient for standing72 and, further, that the complaint raised a “real and substantial controversy which is appropriate for judicial determination,” the adequacy of the environmental review.73 So far so good. Then the court fainted. Dismissing a claim for damages, it turned to the crux of the matter: an environmental review that allegedly failed to “deal fully with [the] impact to the environment.”74 This claim fell to a bevy of defenses familiar to a reader of, say, Charles Dickens and the inscrutable mysteries of the law. By statute, the duty to conduct an adequate review fell to the Lieuten- ant Governor, not the Environment Minister (as if they were not the same government) and, adding greater insult, even if SCRAP could prove violations on the part of the Minister, they were not enforceable because “the Minister answers to the Legislature alone.”75 At least inso- far as compliance with environmental statutes was concerned, the Min- ister was above the law. If this opinion held, environmental law in Can- ada was on the rocks. Enter the Canadian Wildlife Federation with a more potent claim.76 It wasn’t just the Saskatchewan government that was violating the law; it was the federal Ministry of Environment in Ottawa failing to follow the EARP Guideline Order. The Ministry had conducted no environmental review and, instead, cleared the project based on the Saskatchewan process.77 Angered by the Ministry’s refusal to consider

69 See 22 Sept. Proceedings, supra note 64. 70 See generally Ass’n of Stop Constr. of Rafferty Alameda Project v. Saskatchewan, [1988] 68 Sask. R. 52. 71 Id. ¶ 1. 72 Id. ¶¶ 7, 30. 73 Id. ¶¶ 38–39, 44. 74 Id. ¶¶ 71, 74. 75 Id. ¶¶ 75, 85. 76 See generally Can. Wildlife Fed’n Inc. v. Canada (Minister of the Env’t), [1989] 3 F.C. 309 (T.D. Can.). 77 Interview with Ken Brynaert, supra note 34. 190 Boston College International & Comparative Law Review [Vol. 29:175 its several requests (even the famous, hotel-room-delivered motion to censure brought no response), the Federation sought a court order that the Ministry conduct its own review. The Federation’s complaint alleged that the provincial assessment did not consider impacts beyond its borders, including U.S. impacts (of course, to have done so would have admitted the federal nature of the impacts), nor did it consider effects on (federal) ªsheries and, most importantly, migratory waterfowl that were protected by international treaties.78 Once the federal Minister was seen to have jurisdiction, he would be compelled to convene the independent Environmental Review Panel, and it would be a whole new ballgame. The Rafferty-Alameda project, strongly supported by the provincial government, was a hot potato, however, and the Minister wanted no part of it. He argued, ªrst, that the EARP guidelines were only suggestions from the federal government, not law, and, further, that the project had been fully reviewed by Saskatchewan.79 The guidelines applied only if there was no “duplication resulting from the application of the process,” he noted, and federal review here would add just such duplication.80 The federal trial court rejected both defenses. It found that the EARP guidelines were “not a mere description of a policy or programme,” they were regulations and created rights that were “enforceable by way of mandamus.”81 As for duplication, the Rafferty- Alameda affected areas of central federal responsibility, migratory birds for one; indeed, the federal Environment Ministry itself had written Saskatchewan that there were “a number of important information gaps” concerning areas of federal concern.82 And so, on April 10, 1989, a day that, to the project proponents, will live in infamy, the court enjoined construction of the Rafferty Dam, then only twenty percent complete.83 Through this ruling, the ºedging and politically weak Ministry of Environment had done with its guidelines what it could never have done in the Parliament: it had passed a binding law. A scant two months later, the appellate court upheld the ruling.84 According to Ken Brynaert, who was in attendance, the judges did not

78 See Can. Wildlife Fed’n Inc., 3 F.C. at 313–14. 79 Id. at 315. 80 Id. 81 Id. at 322. 82 Id. at 323. 83 Hood, supra note 1, at 70; see also Canada (Attorney Gen.) v. Saskatchewan Water Corp., [1990] 88 Sask. R. 13, ¶ 23. 84 See generally Can. Wildlife Fed’n Inc. v. Canada (Minister of the Env’t), [1989] 2 W.W.R. 69 (F.C.A. Can.). 2006] O Canada! 191

even bother to retire to consider the government’s case; they whis- pered among themselves a little and then ruled: appeal denied.85 The success of the lawsuit sent shockwaves across Canada. It was the ªrst case enjoining a government project of any kind on environmental grounds. It emboldened a broad band of citizen groups to think that the government, too, would have to answer to the law, and that the courts would back them up.86 On the day of the opinion, a member of the provincial House of Commons from Saskatoon, Saskatchewan, rose to say: “I was pleased to hear that the federal license has been lifted by the courts, and this government has been shown for what it is, that this government can’t be trusted when it comes to the environment in our province.”87 News of the Canadian Wildlife Federation verdicts hit the Rafferty- Alameda team like the end of the known world. They had fully expected to win in court.88 Nobody understood the opaque EARP guidelines and this was, after all, their dam, not Ottawa’s. Eric Berntson told a standing-room only crowd at Estevan that he was “madder than hell” about getting stopped by people “no more interested in the environment than they are in ºying to the moon.”89 He was almost drowned out, however, by the “background roar” from opposition members.90 To him and his supporters, and to the very end, they were on the side of the angels; the uproar was simply about a bumbling, intrusive federal agency and politics-as-usual. And so, they would ratchet up the politics on their side. They even made their own movie, “Dreams in the Dust.”91 It featured a widow whose husband keeled over from a heart attack when he learned of the project delays. Engi- neer Hood’s chapter on the ªght that followed is entitled “Getting The Better of Them.”92 Given a mission it had by no means sought, the federal ministry (now called Environment Canada) had to conduct an environmental review. Scrambling and under pressure, in August 1989 the agency completed an internal review, found no environmental problems, and

85 Interview with Ken Brynaert, supra note 34. 86 See, e.g., Hood, supra note 1, at 73. 87 Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard) (10 Apr. 1989) (Mr. Atkinson) 22, available at http://www.legassembly.sk.ca/hansard/21L3S/89-04-10.pdf. 88 Hood, supra note 1, at 70 (describing the proponents’ reaction as an “unbelievable blow”). 89 Id. at 71–72. 90 Id. at 72. 91 Id. at 158–59. 92 Id. at 81. 192 Boston College International & Comparative Law Review [Vol. 29:175 approved a new license for Rafferty-Alameda.93 And without doubt hoped that it could walk away. Instead, this time, it prompted two lawsuits, one by the Canadian Wildlife Federation against Rafferty94 and the other by two farmers, the Tetzlaff brothers, against Alameda.95 The Tetzlaffs’ case had a special tug to it: Alameda Dam had originally been proposed for the Souris River well upstream of its conºuence with Moose Mountain Creek. That was in fact the location analyzed in Saskatchewan’s environmental impact review. Now, the site had been moved downstream, by more than ªfty miles, and on top of their property which would lie forever under 120 feet of water.96 To the Raf- ferty-Alameda team, no worries; the Tetzlaffs would be paid for their land.97 It was simply a matter of money. Back in court, the issues in these cases were no longer whether En- vironment Canada had to conduct a review but, rather, whether the issues were serious enough to invoke the independent review panel and the full EARP process. The trial court minced no words. The EARP guidelines might be ambiguous, but there was no avoiding the major impacts of the Rafferty Dam with promises of unproven and unspeciªed mitigation.98 The government’s position that it was too late to apply the guidelines—having itself refused to apply them earlier—“could make a cynic cackle with glee.”99 Most stingingly, the court referred to the government’s arguments as attempts to “excuse lawbreaking”:100 “If there be anyone who ought scrupulously to conform to the ofªcial duties which the law casts upon him or her in the role of a high State ofªcial it is a Minister of the Crown. That is just plainly obvious.”101 This language was more than a shot across the bow of the environmental bureaucracy. It was a shot through the hull. The court quashed the licenses unless the Ministry convened an Independent Review Panel for the Rafferty-Alameda dams.102

93 See id. at 77. 94 See Can. Wildlife Fed’n Inc., 4 C.E.L.R. (N.S.) at 201. 95 Id. at 202. 96 Id. at 210–11. 97 Hood, supra note 1, at 85. 98 Can. Wildlife Fed’n Inc., 4 C.E.L.R. (N.S.) at 218–20. 99 Id. at 225. 100 Id. 101 Id. 102 Id. at 226. 2006] O Canada! 193

E. Out with a Whimper: Rafferty-Alameda II

Really, the whole thing was just a charade. —Rod MacDonald, Stop Construction of the Rafferty-Alameda Project (SCRAP) 103 Environment Canada was back on the hot seat. Complicating the matter, and with the political assistance of their neighbors across the border, the Rafferty-Alameda team managed to insert into a pending U.S.-Canada boundary waters agreement a $51 million subsidy from the Americans for construction of the two dams, which were to be completed “expeditiously” and to hold Canada liable for any breach of the pact.104 Armed with this new argument and with its own lobbying clout against a federal environment ministry whose political base consisted of the diffuse support of environmental groups who spent most of their time criticizing the ministry for poor performance, the dam boosters cut a very sweet deal.105 Environment Canada would go ahead and appoint its Review Panel. But at the same time, land acqui- sition and construction of associated works for the projects could continue. Only work on the Rafferty dam within the Souris River itself would be halted. Environment Canada would, further, compensate Saskatchewan up to $10 million for project delays. Engineer Hood and his colleagues uncorked the champagne. The prospect of now conducting an independent environmental review on a project released for construction, for which the government would itself be liable for any delays, to say nothing of the cost of possible alterations or an ultimate decision not to proceed, was not lost on anyone. To a spokesperson for SCRAP, now out of the legal action but still into the political ªght, the process was a “farce.”106 Most journalists saw it the same way.107 Certainly the proponents saw it that way. According to engineer Hood, as soon as the second license was issued on Rafferty, work on the dam “rumbled on into the night,

103 Chris Wattie, Chief Justice Denies Injunction to Stop Rafferty-Alameda Dams, The Rec. (Kitchener-Waterloo, Ont.), Nov. 16, 1990, at F11. 104 See Canada (Attorney Gen.) v. Sask. Water Corp., [1991] 1 W.W.R. 426, 435 (T.D. Can.). 105 The Hood team’s elation with the deal is recounted at Hood, supra note 1, at 119. The description of the agreement is taken from this account. 106 See Wattie, supra note 103. 107 See Dennis Bueckert, Court Rejects Bid to Stop Rafferty Dam, The Rec. (Kitchener- Waterloo, Ont.), Dec. 21, 1990, at A8; David Suzuki, The Environmental Assessment Dilemma: At Best, Process Can Only Reveal Areas of Ignorance but It’s Our Best Way to Raise Substantive Questions, Toronto Star, Nov. 10, 1990, at D6. 194 Boston College International & Comparative Law Review [Vol. 29:175 unabated, twenty-four hours a day, seven days a week until freeze- up.”108 Locals came out in lawn chairs to watch the action. In the dam building business, construction is nine/tenths of the law. Environmental law itself, meanwhile, had reached its high water mark on Rafferty-Alameda. From here on it went ebb. By Spring 1990 the Rafferty dam was two-thirds completed and construction had reached the Souris River itself, forbidden ground under the agreement.109 Learning of it, the Review Panel threatened to quit on rather obvious grounds: why bother to study a fait accompli? When the federal Environment Minister simply wrung his hands in despair, Sas- katchewan Premier Devine seized the moment and went for the gold, ordering construction to resume on “all aspects of the project.”110 The Panel resigned.111 Environmental review was moot. But not the legal actions. Alleging a violation of the hard-fought Saskatchewan-Environment Canada agreement, the Attorney General of Canada had ªled his own suit to enjoin construction on Rafferty- Alameda until the Panel ruled.112 The court, retreating to the mindset expressed in the SCRAP opinion, ruled that such relief simply could not be obtained against the Crown.113 Even if it could, the court added, the agreement was a nullity because it had not been approved in the correct manner.114 The court denied the injunction and then dismissed the case entirely because once the project was substantially completed (because there was no injunction) “there would no longer be any purpose in holding a trial.”115 Catch 22: The Crown was above the law; its agreements on behalf of the public were not worth the signatures that executed them; there was no need to restrain a project pending environmental review because, once the project was completed, there would be nothing left to litigate no matter what the review disclosed. The outcome of the Tetzlaffs’ case was even more bizarre. They had sought the same ends, a review panel and a halt until the panel had reported.116 But, the court held, reading the EARP guidelines with

108 Hood, supra note 1, at 82 (photo caption). 109 See Sask. Water Corp., 1 W.W.R at 438; Saskatchewan, Legislative Assembly, Debates and Pro- ceedings (Hansard) (27 Apr. 1990) (Hon. Mr. McLeod) 10, available at http://www.legassembly. sk.ca/hansard/21L4S/900427.pdf. 110 Sask. Water Corp., 1 W.W.R. at 439. 111 Id. 112 Id. at 440. 113 Id. at 441–42. 114 Id. at 447. 115 Id. at 444. 116 Can. Wildlife Fed’n Inc., 4 C.E.L.R. (N.S.) at 203. 2006] O Canada! 195

ªnely-honed legal minds, while the guidelines required a Review Panel, there was no “requirement that any report be made and considered before any ministerial decisions are made.”117 Continuing in this vein, the court held that any obligation not to proceed during the review “depends for ‘enforcement’ on the pressure of public opinion and the adverse publicity which will attach to a contrary course of action.”118 To which conclusion one might ask: why, then, have courts of law? In February 1991, almost as an afterthought, Environment Canada went forward to appoint a review panel for the remaining Alameda Dam.119 That August, however, with the dam thirty percent complete, the Rafferty-Alameda team produced a consultant to say that an un- completed dam could cause increased ºooding. The federal Environ- ment Minister then announced that he would no longer seek to suspend construction while the review took place.120 Construction was not just nine/tenths of the law. It became ten/tenths. The aftershocks of Rafferty-Alameda reverberated across Canada. On the one hand, it was a bad show all round. Everyone ended up feeling betrayed: the Ministry, certainly the environmentalists, even the construction team. The press hooted. Legal commentators were unsparing. Even engineer Hood, rewarded with the completion of his life’s work, would write a book in the role of victim, unfairly treated by press, public, and federal government alike. Orville Ericksen went into retirement and died quietly, folded over his tackle box on a ªshing trip in the north woods with Ken Brynaert. In the end, it was the Oldman verdicts that lived on. Like it or not, and somewhat by the back door, Canada now had an environmental review law that it had to deal with. And a judicial opinion that stated, if there was anyone, further, who had to comply with the law’s requirements, it was “high State ofªcials” and “Ministers of the Crown.” But would courts actually make that happen?

117 Can. Wildlife Fed’n Inc. v. Canada (Minister of the Env’t) [1991] 1 F.C. 641, 667. 118 Id. at 666. 119 Dennis Bueckert, Another Panel Will Review Rafferty Dam, The Rec. (Kitchener-Water- loo, Ont.), Feb. 6, 1991, at F8. 120 World News Digest, Facts on File, Rafferty Dam Construction Cleared, Aug. 29, 1991. 196 Boston College International & Comparative Law Review [Vol. 29:175

II. The Second Front: Oldman Dam

The ªght over the Oldman River dam issue is one of the longest, most bitter and occasionally bizarre episodes in the history of Al- berta’s conservation movement. —Ed Struzik, Edmonton Journal, 1992 121 There are always two embarrassments mentioned in the short history of Canadian environmental law. One is Rafferty-Alameda; the other is Oldman dam. Much of what happened will look familiar: a ºedging federal environmental agency struggling to ªnd its bearings against a province ready to battle and to call its bluff. Only here there was a new dimension that would grow larger in the Great Whale project yet to come: Native Canadians, in this case the Blackfoot Indian nation, had been occupying the Oldman watershed for up to 12,000 years.122 By the end of the saga one of them would be serving a year sentence, and Oldman dam would be exhibit A before an international tribunal on free trade.

A. The River and Its People

That river was never put aside for economic beneªt, it was put aside by the creator for every living thing. —Edwin Yellow Horn, Peigan Nation 123 The Oldman is not a plains river. It rises from snowmelt in the Rocky Mountains and comes tumbling down in chutes and pools with a trout ªshery said to be the best in the country. The Blackfeet are thought to have come into the region after crossing the Bering Sea from Asia, but their story of Genesis begins with being placed here by Naipi, the Old Man, who made the world and everything in it. At which point, after instructing the people how to hunt and live, Naipi

121 Ed Struzik, Supreme Court Decision Caps 2 Decades of Acrimony over Dam, Edmonton Journal, Jan. 24, 1992, available at http://www.nisto.com/cree/lubicon/1992/19920126. html. 122 Jack Glenn, Once Upon an Oldman: Special Interest Politics and the Old- man River Dam 17 (1999). The author provides a description of the River and the history of its human occupation that follows. Id. at 13–24; Univ. of Guelph, Guelph Water Man- agement Group, Land Use and Settlement in the Oldman River Watershed, http://www. uoguelph.ca/gwmg/wcp_home/Pages/O_he_lu.htm (last visited Apr. 18, 2006) [hereinafter Guelph, Land Use and Settlement]. 123 Patrick Nagle, Alberta Town Looks Forward to Beneªts of Oldman Dam, The Rec. (Kitchener-Waterloo, Ont.), May 23, 1992, at C12. 2006] O Canada! 197 is said to have retreated “to the high mountains in the headwaters of the river that now bears his name”—the Oldman. The Peigan tribe, the largest of the Blackfoot nation, were buffalo hunters and when European fur traders encountered them in the early 1800s they controlled the plains from the Canadian Rockies east into Saskatchewan and south into Montana. With the arrival of the snows, the Peigan, like Naipi, withdrew to the Oldman valley where they remained until spring. Their central wintering ground was at the conºuence of Crow Lodge Creek and the Oldman River as it emerged onto the plains, lined by cottonwood trees, a thin ribbon of green against a ºat and treeless prairie. The river stages marked the seasons for the Peigan; they timed their sweats and sacred ceremonies by its rise and fall.124 To Milton Born With A Tooth, the Oldman was a “religious ecosystem.”125 To the oncoming whites, it was a “water resource.” The ªrst white entrepreneurs into the area were American whiskey traders, up from Montana, forcing the Dominion government to send in the Mounties and build the usual fort. Before long, white settlers were on their way in as well. One of the whiskey settlements was called Fort Whoop-Up. The Peigan resisted what they saw as inva- sion.126 They did not trap furs or swap goods with the newcomers; they lived on the buffalo and continued to do so until the ªrepower of horses and riºes made the high plains a killing ground and the buffalo numbers plummeted.127 By the late 1870s the herds at last failed to show up and the Peigan, dying of starvation, came to terms. In 1877 the Blackfoot nation surrendered all of their lands, including the Oldman watershed, to the Crown in return for small, tribal reser- vations and the right to continue to trap, ªsh, and hunt throughout the region. The Peigan chose a site on the Oldman, failed at farming, succumbed to alcohol, smallpox, the plague, tuberculosis, and inºuenza; by the early 1900s they were down to 250 souls. They stand at perhaps 1500 today.128 Whatever tangible symbol remains of their religion and culture lies in the upper reaches of the Oldman River as it comes out of the mountains, less than a dozen miles upstream.

124 Glenn, supra note 122, at 207. 125See id. (quoting Milton Born With A Tooth). 126 Id. at 206–07. 127 Id. 128 See Univ. of Guelph, Guelph Water Management Group, Peigan (Pikuni) and Blood (Kainaiwa) Nations, http://www.uoguelph.ca/gwmg/wcp_home/Pages/O_he_fn.htm (last visited Apr. 18, 2006). 198 Boston College International & Comparative Law Review [Vol. 29:175

The ªrst whites tried to farm dry soils with scarce rainfall until, in 1890, an enterprising Mormon by the name of Ora Card dug an irrigation canal from the river to his settlement.129 Joining forces with a Brit- ish coal company and then the Canadian Paciªc Railway, the immigrants expanded their irrigation projects to make crops a little more tenable and, from the Crown’s point of view, to put some Canadians in the way of American boomers from the south bent on expanding their “manifest destiny” and looking north.130 The Dominion Land Act made irrigated lands available for one-ªfth the going market price (in the United States, the Reclamation Act made them free for the taking), and federal irrigation laws promised more diversion projects. In the words of one historian, a “happy band of politicians, railway ofªcials, land developers and government engineers” reached their prime before and after the First World War.131 Their assumption was that irrigation was proªtable and would pay its way. The dust bowl proved otherwise. The railroad went into deep deªcit, sold off its lands, and scrambled to get out of the irrigation business. Water resources development in southern Alberta, round one, was not a big success. Round two followed the Second World War, when returning sol- diers and new waves of immigrants again looked to the western plains. The federal government launched new water projects to assist them, but soon learned, as it had thirty years earlier, that “irrigation in western Canada was a money-losing proposition.”132 As Ottawa maneuvered to get out of the business, in stepped Alberta which was placing its bets on the future through expanded agriculture, food processing, and crops like sugar beets that required more water.133 While ninety percent of Canadian farmers relied on natural precipitation for crops and ranching, the western plains depended overwhelmingly on irrigation.134 For Alberta, that meant only two sources and one of them was Oldman.

129 See Irrigation. . . History of Irrigation in Southern Alberta, http://www.uleth.ca/ vft/Oldman_River/Irrigation.html (last visited Apr. 18, 2006) [hereinafter Irrigation]; see also Glenn, supra note 122, at 19–21; Guelph, Land Use and Settlement, supra note 122. The description of irrigation ventures that follows is taken from these sources. 130 Glenn, supra note 122, at 20. 131 Id. at 21. 132 Id. at 22. 133 Irrigation, supra note 129; Glenn, supra note 122, at 22. 134 Irrigation, supra note 129; Glenn, supra note 122, at 22. See generally Friends of the Oldman River Soc’y v. Canada (Minister of Transp.), [1992] 1 S.C.R. 3 (Can.) [hereinafter Oldman River II]. 2006] O Canada! 199

B. The Dam and Its People

Mercy on your soul! You have been assailed by the Southern Al- berta water lobby. —Owen G. Holmes, letter to the federal Minister of Environment, 1986 135 The ªrst serious proposals to dam the Oldman River date back to the 1950s with a federal-provincial study, released ten years later, recommending a location at the conºuence of the Crows Nest, Castle, and Oldman, the Three Rivers site.136 A decade of environmental reviews and public meetings followed, capped by the disappointing conclusion of the Alberta Environment Council that “an onstream dam [was] not required at this time, nor in the foreseeable future.”137 If one were to be built, however, a better location would be on the Pei- gan tribe reserve.138 The Peigan promptly put in a demand for compensation, and lots of it.139 Nobody seemed happy, and the project appeared doomed. Plans like this, however, do not go away. In 1984, taking advantage of a crippling summer drought, Alberta Premier Peter Lougheed announced that his government would proceed with the dam at the Three Rivers location.140 He anticipated, he said, “no environmental concerns.”141 The environmental facts of life, however, are that dams block ªsh runs, and irrigation return ºows are notoriously high in silt, fertilizers, pesticides, and salts and metals leached from the soil.142 A federal study, completed a few years later, found that there could be signiªcant impacts indeed on water quality, ªsheries, and the Peigan reservation downstream.143 The Edmonton Journal saw what was coming. It editorialized: “The Oldman Dam has the potential to be an . . . environmental disaster.”144 As the proposals for the Oldman waxed, waned, and shifted locations, a ºedgling group of farmers and environmentalists started rais-

135 Letter from Owen G. Holmes to the Honorable Lucien Bouchard, Federal Minister of Environment (Apr., 1986), reprinted in Glenn, supra note 122, at 130. 136 Glenn, supra note 122, at 26. 137 Id. at 33. 138 Id. 139 Id. at 39–40. 140 See Struzik, supra note121. 141 Id. 142 Univ. of Guelph, Guelph Water Mgmt. Group, The Oldman River Watershed, http://www.uoguelph.ca/gwmg/wcp_home/Pages/O_home.htm (last visited Apr. 18, 2006). 143 Glenn, supra note 122, at 111. 144 Id. at 43 (citing to the Edmonton Journal). 200 Boston College International & Comparative Law Review [Vol. 29:175 ing questions, then criticisms, and the battle lines slowly formed.145 Po- litically, however, it was no contest until they called on a national environmental network for help. Down from Calgary came Martha Kos- tuch, an expatriate from Minnesota, a veterinarian by trade and an environmentalist by passion who was now living in a town called Rocky Mountain House, six hours of hard driving away.146 The ªrst thing Mar- tha did was organize the Friends of the Oldman River Society, acronym FOR; “We wanted something with a positive ring,” she explains. As the issues heated up and insults ºew, then nasty letters, then intimidating phone calls—at one point Martha had the Mounties tap her phone to monitor the threats she was receiving—there was an advantage to managing this campaign from Calgary. The pressure on local opponents was also relentless. Alberta sought in court to discover the identities of the Society’s local members, which could have put the livelihoods of more than one, particularly those who worked for or with the provincial government, in jeopardy. These are small towns. Everyone knows everyone. When the Society gave notice it intended to sue over Al- berta’s approvals for the dam, the provincial Environment Minister Ken Kowalski branded them “pot smoking social anarchists.” 147 He later accused them of inciting violence.148 Pressed to explain, he apolo- gized.149 More or less. And much later. The Peigan tribe was torn.150 Desperately poor and in need of government aid, they were offered millions of dollars in mitigation for the dam, which translated into schools, education, the improvement of their lives. But the tribe was tied to the river, root and branch, every aspect of its physical and spiritual culture. Which way did responsibility lie? Deeply divided, the tribal council voted not to oppose. On the other hand, a warrior group within the tribe, the Loneªghters, maintaining a warrior tradition of young braves that extended back beyond memory, took a more aggressive stance.151 They would ªght the dam to the end, indeed beyond the end. Their spokesman was Milton Born With A Tooth. They would not join with Martha Kostuch’s Friends of

145 See id. at 50–55. 146 Telephone Interview with Martha Kostuch, Founder, Canadian Environmental Network, May 30, 2005. The description of the early opposition that follows is taken from this interview. 147 Glenn, supra note 122, at 51. 148 See Interview with Martha Kostuch, supra note 146. 149 See id. 150 Glenn, supra note 122, at 195–204. 151 Id. at 76–86. 2006] O Canada! 201

the Oldman, but they would pursue their own legal strategy.152 And they would also raise hell. The stage was now set for a battle that would test not only the warring parties but the Canadian government and its authority to make environmental policy at all.

C. Oldman Goes to Court

Why should ordinary citizens ªnd it necessary to go to court to force their own government to respect the law? —Editorial, Lethbridge Herald, 1993 153 The legal actions orchestrated by Martha Kostuch and the Society took two paths. The ªrst asserted federal jurisdiction over the project under the EARP guidelines.154 In 1986, Alberta had requested a permit from the Ministry of Transport for work in a navigable water, the same license that would trigger federal responsibility in Rafferty- Alameda. Beginning in 1987, local environmentalists started petition- ing both the Transport and Fisheries ministries to comply with the guidelines.155 The Ministry of Fisheries replied that it had delegated its responsibilities to the province; Transport replied that this was Al- berta’s dam. Friends of the Oldman River then petitioned the Minis- try of Environment to invoke the guidelines directly156 and was refused. The federals wanted no more to do with this one than they did Rafferty-Alameda. Meanwhile, the Society went to provincial court challenging Al- berta Environment Minister Ken Kowalski’s “interim” approvals for the dam for lack of public participation.157 Kowalski described the charges as “absurd, nonsensical and to the point of being ridiculous.”158 In his view—reminiscent of government ofªcials around the globe—he was the public. In December 1987 the Chief Justice of the Queens Bench of

152 See id. at 237–46. The Peigan tribe brought several claims based on cultural and treaty rights to the ºow of the Oldman River. While these claims may have provided leverage in negotiating compensation and other terms from the government, none were successful in court. Note that the term Peigan and Piikan are used interchangeably throughout the text. 153 Editorial, Lethbridge Herald, Jan., 1993, reprinted in Glenn, supra note 122, at 248. 154 See Glenn, supra note 122, at 61–63. See generally Friends of the Oldman River Soc’y v. Canada (Minister of Transp.), [1990] 2 F.C. 18 (Fed. Ct. Can.) [hereinafter Oldman River I ]. 155 Oldman River I, 2 F.C. at 18. 156 See id. 157 See id.; Glenn, supra note 122, at 54, 55. 158 See Struzik, supra note 121. 202 Boston College International & Comparative Law Review [Vol. 29:175

Alberta ruled quite the contrary, that the provincial approvals had “[denied] affected parties the opportunity to voice their concerns”, and quashed the licenses.159 His decision was not well received. One local mayor said the judge was “nuts” and “should be sued.”160 Alberta did the next best thing and appealed the verdict.161 Then it allowed a $97 million construction contract before the appeal could be heard.162 Go- ing one better, then it dropped its appeal and issued itself a new license.163 This response would set the pattern for all that followed. The Oldman River Society was not without recourses of its own. In August 1988, as the river was being diverted into side channels to prepare the dam site, Martha Kostuch swore an afªdavit before a local justice of the peace that the construction was violating the national Fisheries Act, a federal criminal offense.164 In her view the case was clear: the only court decision on the matter had ruled the approvals unlawful.165 When the Alberta Attorney General asserted jurisdiction over the case, however, Ottawa, with obvious relief, promptly trans- ferred the case to the province.166 Where of course it expired.167 Al- berta was not about to sue itself over Oldman Dam. By spring 1989, despite harsh winter construction conditions, the dam was 40% complete, building continued, and the legal actions had not panned out on any front. Then, a miracle occurred. That March, federal Judge Cullen, sitting in Saskatchewan, found the Ministry of Transport bound by the EARP guidelines in Canadian Wildlife Federa- tion I, Rafferty-Alameda dam.168 Within days, Friends of the Oldman River was in federal court in Alberta, seeking application of this precedent and federal environmental review for Oldman Dam. This lawsuit became the main event.

159 See Glenn, supra note 122, at 159; Jim Morris, Oldman Dam Draws Controversy: Alberta Project Hotly Debated for 34 Years, The Rec. (Kitchener-Waterloo, Ont.), Aug. 15, 1992, at F10; Struzik, supra note 121. See generally Friends of the Oldman River Soc’y v. Canada (Minister of Transp.), [1992] 1 S.C.R. 3 (Can.). 160 Glenn, supra note 122, at 56. 161 See Struzik, supra note 121. 162 Id. 163 Id. 164 Oldman River II, 1 S.C.R.at 3. 165 See Interview with Martha Kostuch, supra note 146. 166 See Oldman River II, 1 S.C.R. at 3; Struzik, supra note 121. 167 Martha would go on ªghting all the way to the Supreme Court to assert criminal jurisdiction impugning the Crown Attorney General for dereliction of duty, but to no avail. Interview with Martha Kostuch, supra note 146. Enforcement of criminal laws is in all countries viewed as highly discretionary. If the cops want to look the other way, they may. 168 See generally Can. Wildlife Fed’n, Inc. v. Canada (Minister of the Env’t), [1989] 2 W.W.R. 69 (Fed. Ct. Can.). 2006] O Canada! 203

It is sometimes hard to appreciate, and to understand, the intran- sigence of the players in environmental litigation. Most lawsuits are about money. Very few environmental suits, however, are about money, at least on the part of the people who bring them. What they want is deeper and far less attainable: they want something they care about left alone. They are not easy to deal with because a deal offering them half of the pot is still the death of a loved one. How does one halve a river? And so when Alberta offered to sweeten the pot on the ªsheries impacts of Oldman Dam by enhancing the ªsheries on other rivers in the system,169 that meant little to local environmentalists and less to the Peigan tribe. True, you might be able to buy out a desperately poor tribe for money and aid. But to environmentalists whose roots in something like the Oldman River are equally spiritual, if not overtly religious, these cases are like defending Eden from an invader who is intent on ignoring their issues, funneling money to friends, inventing bogus beneªts, and breaking the law. An invader who doesn’t understand them at all. For Alberta, the dynamics were different but no less vitally felt. Projects like these were the future of the region. Who could farm the plains without water? The projects were, further, planned by duly- elected ofªcials. What happens though is that, at some early point, having planned them, the ofªcials adopt these projects like children and quite soon the line between public good and private ego disap- pears. Not only is their project on the line, they are on the line, and so begin the insults, the hyperbole, and the need to ram it through come hell or high water. When Alberta attacked its critics as anarchists and defended its dam in terms of “feeding a hungry world,”170 it probably believed what it was saying. Deep down, though—and one does not have to dig too far—Alberta was defending power. If the Friends of the Oldman River won the EARP guidelines case and established federal environmental review of provincial projects, no end of sovereignty would be lost. To say nothing of lucrative contracts and political clout. To Alberta, Oldman Dam was civil war. The ªrst EARP case did not go well for the environmental plaintiffs. The trial court was on a hot seat and not inclined to follow the Rafferty-Alameda decision. Ruling in August 1989, he found a way out, holding that while Rafferty-Alameda involved an international commission and international impacts, Oldman was purely local so

169 Glenn, supra note 122, at 53–54. 170 Id. at 44. 204 Boston College International & Comparative Law Review [Vol. 29:175 the Ministry of Transport’s license did not invoke EARP review.171 Martha Kostuch was devastated,172 but giving up is no more part of the DNA for a person like Kostuch than it is for government planners. She plunged immediately into an appeal, while Alberta rolled its bulldozers and deepened the diversion canals for the dam. The appeal would cost money. Friends of the Oldman held a fundraiser, a “celebration” of Oldman with Canadian folk music immortals like Gordon Lightfoot and Ian and Sylvia and turned out another Woodstock, with thousands of people in the ªelds, national press coverage, money in the appeal fund.173 But they had yet to win in court. Five months later they did. In March 1990, an appellate court ruled, as in Rafferty-Alameda, that the federal Transport license required environmental review and ordered both Transport and Fisher- ies to comply.174 The appellate decision “sent panic through the ranks of dam supporters,” and it did not stop there.175 The federal Minister of Environment wrung his hands, lamenting openly that for years everyone had thought its guidelines were unenforceable.176 Apparently, the good old days had ended. With obvious reluctance, the Minister convened an Environ- mental Review Panel for Oldman Dam.177 Alberta, meanwhile, did the smart thing. It appealed the decision to the Supreme Court and proceeded post haste towards completing the dam. The Environment Ministry—unsure of whether it had the authority to enjoin the construction, unsure of whether, even if it did have the authority, Alberta would obey(just look at what had happened with Rafferty)—did nothing at all.178 Which would simply replay the Saskatchewan scenario, but for the legal challenges made to the Supreme Court and their outcome. Alberta’s claim went deep: the national government had no constitutional authority to require environmental impact review.

171 See generally Friends of the Oldman River Soc’y v. Canada (Minster of Transp.), [1990] 1 F.C. 248 (Fed. Ct. Can.), rev’d by Oldman River I, 2 F.C. 18. 172 Glenn, supra note 122, at 65. 173 Id. at 66. 174 See Oldman River I, 2 F.C. at 18. 175 Glenn, supra note 122, at 69. 176 Id. 177 Id. at 72. 178 Id. 2006] O Canada! 205

D. The Peigan Make Their Move

I’m going to continue what I’m doing slowly to mentally and physically dismantle this dam. —Milton Born With A Tooth 179 Meanwhile, as Alberta hurried its bulldozers and dallied on its appeal, the Peigan Loneªghters were about to take matters into their own hands.180 Seeing no relief from the court actions and the dam going up before their eyes, on August 3, 1990, they announced a “ground breaking ceremony,”181 rented a bulldozer from a local construction company and began a cut into the government’s diversion canal to return the Oldman River to its natural channel. At a press conference in nearby Head-Smashed-In-Buffalo-Jump, Milton Born With A Tooth explained that the Loneªghters were acting to protect the Peigan way of life. “No more courts for me, no more panels for me. It’s time passion is brought back to this country” said Born With A Tooth.182 The Loneªghters also believed, apparently on advice from tribal counsel, that their actions on tribal land were perfectly lawful. What followed was a comic-tragedy of mistrust and botched communication. Milton Born With A Tooth did not act alone. He had signiªcant support from the Peigan tribe, which in turn was acting in the swirl of First Nation rights marches, sit-ins, occupations, and violence that culminated in the summer of 1990, Canada’s “summer of discon- tent.”183 The Peigan list of grievances against Alberta and the federal government went back 100 years. They viewed the treaties they executed as “shams,” signed by white Indian agents whose corruption was legendary. “Heck,” one current tribal leader says, “we didn’t know how to read and we didn’t know how to write; we were still riding around on horses and shooting Winchesters.” In the early 1920s, without so much as a by-your-leave from the tribe, Alberta had cut an irrigation canal across the reservation. The Peigan still consider it il-

179 Id. at 94. 180 Id. at 76–93. The description of the Loneªghter action that follows is taken from this source. 181 Glenn, supra note 122, at 77. 182 William Walker, Ottawa Refuses to Shut Down Oldman Dam, Toronto Star, May 22, 1992, at A15. 183 Telephone Interview with Edwin Small Legs, Tribal Council Member, Blackfoot Confederacy, June 3, 2005. The descriptions of Milton Born With A Tooth and Edwin Small Legs that follow are taken from this source. 206 Boston College International & Comparative Law Review [Vol. 29:175 legal. By the late 1960s, as Oldman Dam was percolating along, their suspicions and sense of injury were already high. The Peigan opposition to the Oldman dam had been led in the 1970s by Nelson Small Legs, a tribal chief for more than a decade. Nel- son’s son Edwin grew up with Milton Born With A Tooth, two more going-nowhere kids, as he describes it, cut loose in the poverty and hope- lessness of the reservation. In 1978 the two teenagers learned of the American Indian Movement south of the border, studied up on it, and fell in. “It changed our lives,” says Edwin. They joined the Native American Walk Across America that summer and it opened their eyes to the problems they faced and their possibilities. Edwin Small Legs recalls: “We met an old lady on the march who told us, ‘We’re already sick here. Just you wait. You’re going to catch cold too.’” Now, a decade later, Alberta was building its dam, thumbing its nose at the environmental lawsuits and the Peigan’s own cases were going nowhere as well. What the Loneªghters did next was planned civil disobedience. They sat down, recalls Edwin Small Legs, and “decided that somebody had to go to jail.” Nobody was paying any attention to their protests or even to court decisions. Milton Born With A Tooth spoke up. “I’ll do it,” he said. “I’ll go to jail.” And so, on a hot day in August, he rented the bulldozer, went to work, and called in the press. There is a photo of Milton, his sister, and an unnamed Loneªghter on a dike at the construction site.184 Milton is long haired, broad faced, and naked from the waist up. He is wearing an amulet around his neck, and he is smiling. Events ran their inevitable course. The Loneªghter bulldozer sank into the mud and became inoperable for days. Somehow they got a forklift, hauled it out, and soon both machines were digging dirt. Alberta went into negotiations with the Tribal President and agreed not to invade the reservation. But the Loneªghters, marching to their own drum, went on pecking away at diverting the canal. Then, on September 7, and without any further communication with the President or Tribal Council, Alberta ofªcials entered the reservation supported by Royal Mounties, in camouºage and heavily armed. They impounded the bulldozer, and, helicopters circling overhead, moved into the Loneªghter camp. No one got hurt. But two shots were ªred. The government forces halted and eventually pulled back. The man who ªred the shots was Milton Born With A Tooth.

184 Glenn, supra note 122, at 91. 2006] O Canada! 207

E. The Supreme Court Rules

Alberta argues that the Guidelines Order attempts to regulate the environmental effects of matters largely within the control of the province and, consequently, cannot constitutionally be a concern of Parliament. In particular, it is said Parliament is incompetent to deal with the environmental effects of provincial works such as the Oldman River Dam. —Supreme Court of Canada, Friends of the Oldman River Society v. Canada185 Meanwhile, back in Ottawa, the Ministry of Environment’s inaction on Oldman Dam was becoming embarrassing. Once Alberta appealed the decision against its project, an assistant to the federal Envi- ronment Minister announced that the Environmental Review Panel was “on ice” until the appeal was resolved.186 Friends of the Oldman petitioned a federal court to order the Minister to move. Under the protective cover of the order, a less-than-eager Ministry ªnally convened its panel, which went to work on its own assessment, conducted its own hearing, and prepared its report. Alberta, unwilling to compromise its legal position, refused to participate in the review process but mounted a “truth squad”187 to monitor the proceedings and had its views well represented. At a hearing in Lethbridge one supporter stated that the dam planners were “educated engineers” and “shouldn’t be ques- tioned.”188 Truth be told, in their heart of hearts, most engineers would agree. Meanwhile, construction continued on the dam. When asked whether Alberta could actually operate the dam without federal approval, the provincial Environment Minister observed, “Of course we can . . . we’re doing it now.”189 In another building in Ottawa, the Supreme Court was slowly grinding its way through the briefs and arguments of Alberta and no fewer than ªve sister provinces who saw very clearly that their turf was on the line. Weighing in for the environmentalists was Brian Crane, a senior attorney from Ottawa who had succeeded before these same judges in Canadian Wildlife Federation not so very long before. Finally, in February 1992, the court ruled. One can usually tell how a case will

185 Oldman River II, 1 S.C.R. at 63. 186 Glenn, supra note 122, at 103. The description of the panel’s actions that follow is taken from this source. 187 Id. at 109. 188 Id. at 106. 189 Id. at 113. 208 Boston College International & Comparative Law Review [Vol. 29:175 turn out with the ªrst few sentences of any opinion. In this case, the Supreme Court of Canada began: “The protection of the environment has become one of the major challenges of our time.”190 Attor- ney Crane must have been feeling pretty good at this point. The opinion moved through the statutory issues like so much underbrush. Yes, the EARP guidelines order had been authorized by a statute.191 And no, it did not conºict with the authorities of Transport and Fisheries.192 And no, although the dam was largely completed, it was not too late for mitigating measures or to declare the law before them.193 Then it arrived at the main event: in a government of limited powers with natural resources development authority explicitly re- served to the provinces, was a federal environmental review process, even one created by federal statute, constitutional? To Alberta and her sisters the guidelines order was a “constitutional Trojan horse” enabling Ottawa, “on the pretext of some narrow ground of federal jurisdiction,” to intrude deeply into matters that were “exclusively” the provinces’ domain.194 The issue was cosmic, because if the provinces were correct, then national environmental review for all but federal lands and ªsheries would be history. Not very good history for Friends of the Oldman River, or for the Canadian Wildlife Federa- tion for that matter, which had already seen what provincial reviews produced. Federal environmental authority in the Canadian constitutional framework was, and remains, one of the hottest questions in Ca- nadian environmental law, and everyone had an opinion.195 Some simply denied it: “environmental protection” was not a federal power.196 Others taking a “conceptual” or “global” view found federal environmental authority in such “general” constitutional provisions as criminal law, taxation, or trade.197 The Oldman court did neither. Instead it took a middle course, but one with a very wide middle that would accom- modate major national primacy in environmental law. The middle course was to look at the “basic functions” of the federal sectoral agencies in this case,198 Transport and Fisheries. Did the

190 Oldman River II, 1 S.C.R. at 16. 191 Id. at 6. 192 Id. at 7. 193 Id. at 80. 194 Jean Leclair, The Supreme Court of Canada’s Understanding of Federalism: Efªciency at the Expense of Diversity, 28 Queen’s L.J. 411, 424–30 (2003). 195 Oldman River II, 1 S.C.R. at 62–63. 196 Id. at 64. 197 Id. at 65–72. 198 Id. at 37, 44. 2006] O Canada! 209

EARP guidelines impose a new legal order on these constitutionally- created ministries or simply stretch their powers to include environmental considerations? Faced with the disagreeable alternative of in- validating an environmental process the court plainly believed would beneªt the licensing decisions of Transport and Fisheries (citing a United Nations report to the effect that development and environmental protection were compatible),199 the court found that the guidelines’ “intrusion into provincial matters” was only “incidental” to the “pith and substance” of the federal programs.200 Environmental review was simply an instrument that helped focus the way these agencies did business, and one that, the court stressed, only bound them to a process and not to a particular result.201 If, in the end, the Ministry of Transport or Fisheries chose to ignore an Environmental Review Panel, it could do so. Of course, while technically correct, any lawyer knows that process determines outcomes and that environmental process could be used very effectively to change private and government plans. The effect of the opinion, though, was to legiti- mize Canadian federal environmental law, at least within the bounds of established federal jurisdiction. The provinces would have to get used to a new national order. As would the Minister of Environment, now saddled with more responsibility than he ever wanted.

F. Requiem

There is no way the dam will ever be shut down. —Ken Kowalski, Alberta Minister of Public Works, 1992 202 In May 1992, the Oldman Dam Environment Review Panel issued its report.203 It was strong medicine. The adverse effects of the dam would be severe, particularly on ªsheries, archeological sites, and the Peigan culture. The provincial environmental review had been so sketchy that conclusions on other environmental effects were not pos-

199 Id. at 37 (quoting Can. Council of Res. & Env’t Ministers, Report of the Na- tional Task Force on Environment and Economy, Sept. 24, 1987 which states “Our recommendations reºect the principles that we hold in common with the World Commis- sion on Environment and Development (WCED). These include the fundamental belief that environmental and economic planning cannot proceed in separate spheres. Long- term economic growth depends on a healthy environment.”). 200 Id. at 75. 201 Glenn, supra note 122, at 111. 202 Id. at 111–13. The description of the report that follows is taken from this source. 203 Id. at 111. 210 Boston College International & Comparative Law Review [Vol. 29:175 sible to draw. The project had created great divisiveness, uprooted the lives of displaced farmers, and its claimed need for increased irrigation acreage had not been shown. Overall, the project was “not acceptable.”204 The ªrst and best option was to “decommission” it.205 Shades of the Alberta Environment Council report on Rafferty- Alameda, ªfteen years earlier. And equally unavailing. Oldman Dam at this point was 80% complete. Always quick with a quote, Alberta Minister of Public Works Ken Kowalski (he had been promoted from the provincial Environment Ministry; following the Supreme Court ruling he had even called for the abolition of the Environment Minis- try) labeled the Review Panel report “technically adolescent.”206 The dam would be completed, he said, no matter what the Review Panel did. He was correct. Here, now, was the federal government, the Review Panel report in hand calling for a decommissioning of Oldman Dam, the dam all but completed and staring it in the face, and Alberta saying you’ll decommission Oldman over our dead body. Predictably, perhaps inevitably under the circumstances, the federal Ministry blinked, asking only that the province mitigate impacts on the Peigan and the ªsheries.207 The Peigan negotiations would go on for years. The ªsheries were another matter. Canadian biologists had predicted that the dam would present an insurmountable obstacle to the prize species of the region, the bull trout.208 Three years after the gates closed, a magazine reported that Alberta’s remaining bull trout “teetered on the brink of extinction.”209 Alberta reacted promptly. In May 1995 its legislature proclaimed the bull trout one of the province’s “ofªcial emblems.”210 Problem solved. Milton Born With A Tooth was convicted on several counts of ªrearms violations.211 He said he was ªring warning shots, in the air, aiming to miss. The government insisted he shot at the Mounties. He soon became a First Nation celebrity. The Grand Chief of the Assembly of Manitoba Chiefs declared his people “supportive of the principals

204 Id. at 112. 205 Id. at 113. 206 Id. 207 Glenn, supra note 122, at 128. 208 Id. at 129. 209 Id. 210 Id. The account of the trial that follows is taken from this source. 211 Press Release, Mother Earth Def. Fund, More Injustices Over Oldman Dam—Federal Inquiry Sought ( Jan. 8, 1995) available at http://www.nanews.org/archive/1995/nanews03. 004. 2006] O Canada! 211

behind Milton’s actions to defend his territory and Mother Earth.”212 He continued: “The longer those in positions of power continue to prioritize economic interests over environmental impacts, the closer we move toward global destruction.”213 Born With a Tooth’s trial judge was not impressed. Quite the opposite, he conducted the trial with such overt hostility to the defense as to prompt an outcry from the press and, eventually, a reprimand.214 And so Born With a Tooth, too, went up on appeal, to have his conviction reversed and remanded for a new trial, which was scrupulously fair, but he had ªred the shots, and that was all it took to meet the allegations. He was sentenced to sixteen months in jail, served twelve, and moved away. He had once said, “I’m going to do it my way...if the valves [in the dam] are not open in the next few days or weeks, they’d better kill me before I get home because I’m willing to die for this.”215 He tried, he wasn’t killed, but he lost. Come to think of it, in a sense he was killed too. The Peigan came out a little better. In 2001 they changed their name, rejecting the English version and reverting to their own pro- nunciation, Piikan.216 Two years later they struck a settlement of their claims against Alberta and the government of Canada for $64 million in cash and an ongoing study on the future impacts of the dam on the environment and the Piikan culture. They were training ªfteen of their own tribe as environmental scientists, archeologists, and sociolo- gists for the study.217 They were concerned for the long term. They secured a re-opener of the cash settlement depending on the study results. The dam was a fait accompli. The environment lost. But they would win something important. Edwin Small Legs says, “I can tell you this. If it hadn’t been for Milton and what he did, we would not have that $64 million today.”218 The Province of Alberta had an answer to the bad press created by the Environment Review Panel report. It planned a large public ceremony to inaugurate Oldman Dam.219 Exercising his talent with words once again, Alberta Minister Kowalski christened the event “A

212 Id. 213 Glenn, supra note 122, at 129. Among other things, the judge denied Born With A Tooth bail four times while awaiting trial, detainment that the Alberta Civil Liberties Asso- ciation said “deªes belief.” See Press Release, Mother Earth Def. Fund, supra note 211. 214Walker, supra note 182. 215 Glenn, supra note 122, at 114. 216 Interview with Edwin Small Legs, supra note 183. 217 Id. 218 Id. 219 Glenn, supra note 122, at 114. 212 Boston College International & Comparative Law Review [Vol. 29:175

Festival of Life: A Celebration of Water.” In addition to the usual for- malities, presided over by the provincial Premier, the four-day program included “wild water rides, a children’s carnival, a canoe and kayak whitewater competition . . . a 500-seat dinner for dignitaries, a concert by Canada’s top country band . . . and a church service.”220 Martha Kostuch, no slouch for a phrase, had her own name for it: a “festival of death, the death of three rivers.”221 She called up the scheduled country band and asked, “Do you know what it is you are celebrating?”222 The band cancelled. The Peigans refused to participate as well, not just the Loneªghters but the whole tribe. Kowalski accused Kostuch of inciting violence. Milton Born With A Tooth did not help matters by calling a radio show to declare his willingness to lay down his life to stop the dam. Minister Kowalski ªnally called off the ceremony, alleging a criminal conspiracy. The Calgary Herald advised him to “put up or shut up.”223 He did neither. Instead, in lieu of his public celebration, at dawn on July 23, 1992 a squadron of sixteen ºag-bearing horsemen galloped to the top of the dam where they were duly photographed and memorialized. “[A] respectful afªrmation,” said the Alberta Re- port, “of their support for water management in Southern Alberta and their contempt for the threats of violence that have prevented a public celebration.”224 Observed the Calgary Herald, it was “more like a public relations attempt at damage control.”225 Years later Martha Kos- tuch said that she thought it might be better to leave the dam stand-

220 Id. 221 Id. at 115; see Interview with Martha Kostuch, supra note 146. 222 Interview with Martha Kostuch, supra note 146; see Glenn, supra note 122, at 115. 223 Glenn, supra note 122, at 116. 224 Id. 225 See Morris, supra note 159. Martha Kostuch soldiered on citing Canada’s failing environmental politics to the Environmental Committee of the North American Free Trade Agreement, with Oldman Dam as Exhibit A. Press Release, Friends of the Oldman River, Further Delay in Release of Commission for Environmental Cooperation’s Factual Record on Canada’s Non-Compliance with Environmental Laws ( June 24, 2003) (explaining Ms. Kostuch’s position with respect to the dam issue). At the same time, Friends of the Old- man River was submitting a detailed ªve-year critique to the Canadian Environmental As- sessment Agency of its performance under the new Environmental Assessment Act. Martha Kostuch, CEAA 5 Year Review (2003), available at http:/www.ceaa.gc.ca/013/001/0002/ 0004/0001/kostuch_f.htm. The organization and reputation of the Society gained during the Oldman Dam ªght were being put to new environmental ends. 2006] O Canada! 213

ing after all, as a “monument to government stupidity.”226 It would make a bigger tourist attraction that way, she added.227 And so it ended at Oldman dam. Bitter to the last. Canadian environmental law was constitutional, but it had failed to catch the train.

III. Worlds Collide: The Great Whale

Quebec is a vast hydro-electric plant in the bud, and every day, millions of potential kilowatt hours ºow downhill and out to sea. What a waste. —Robert Bourassa, Premier, Quebec Province 228 In April 1971, the government of Quebec announced plans to build one of the most massive construction works in the world in one of the most untouched regions of the world, a vast complex of lakes, rivers, tundra, and forests east of Hudson Bay called the Canadian Shield. Designed in three phases, phase one would drain six entire rivers into the La Grande River, doubling its ºow and funneling it towards an un- derground powerhouse more than twice the size of the Notre Dame Cathedral.229 Four powerline corridors would cut through hundreds of miles of the forest to Montreal and, of considerable importance as things turned out, to New York and New England as well.230 The La Grande project required a thousand kilometers of access roads, four main dams and 130 kilometers of dikes and reservoirs ºooding 8700 square kilometers, 5% of the land surface of the province and a much higher percentage of its lakes and wetlands.231 By comparison, Rafferty- Alameda and Oldman dams were mere pretenders. La Grande was just the start. All three phases, when completed, would consume twenty wild rivers and cover an area equal to the size

226 See Morris, supra note159. 227 Id.; see Jamie Linton, The Geese Have Lost Their Way, Nature Canada, Spring 1991, at 27, 28. 228 Linton, supra note 227, at 28. 229 Id. at 28–29. 230 See generally Sam Howe Verhovek, Power Struggle, N. Y. Times, Jan. 12, 1992, § 6, at SM16 (stating that the electricity generated in the Canadian North races down the transmission lines that stretch like forests of steal across the tiaga, into New York state and ultimately that crosses a grid that reaches into every home, apartment, factory and ofªce in the state). 231 Harvey A. Feit, Hunting and the Quest for Power: The James Bay Cree and Whitemen in the 20th Century: Part II: The Cree Struggle to Maintain Autonomy in the Face of Government Interven- tion, (2004) available at http://arcticcircle.uconn.edu/CulturalViability/Cree/Feit1/feit2. html. 214 Boston College International & Comparative Law Review [Vol. 29:175 of France.232 Even more spectacular was Quebec’s further dream of damming off James Bay entirely with a 100 mile dike and sending its waters to the western plains, as far away as California.233 The Province stood to make a fortune. Better yet, none of these impacts would be felt by Quebecois. The project was sited on the territory of the Cree Indian Nation. Only nobody bothered to tell the Cree.234 The struggle that followed pitted two passionate antagonists, each with its history of grievance and a struggle for self-determination. For the next twenty years, the Canadian government was largely a by- stander, a position it would ofªcially describe as alert neutrality.235 In one corner of the ring stood Quebec, whose separate language, culture, and politics fed a near-constant quest for greater autonomy, if not outright independence.236 Vive la Quebec Libre!, said at least in jest, at times seriously, and often as a bargaining chip, has never been far from the surface in Quebec City and Montreal. Few better ways than a hydroelectric power bonanza to provide an economic base for these and more modest ambitions. And lest one forget, emerging from a history of English dominance and alert for further insults, Quebecois were the least prepared Canadians then or now to take directions from Ottawa. These were Quebec’s projects. They would be built and guarded by its alter ego, the James Bay Development Corporation. In the opposite corner of the ring stood the largest and most functionally-independent First Nation left on the North American continent this side of Mexico.237 Northern Quebec east of James and Hudson bays has been inhabited by the Cree since the glaciers retreated some 5000 years ago.238 Subgroups of Cree pushed south into the swamps that line the American border and then west to the plains,

232 Verhovek, supra note 230. 233 Id. 234 Harvey A. Feit, Hunting and the Quest for Power: The James Bay Cree and Whiteman De- velopment, in Native Peoples: The Canadian Experience 101, 112–13(R. Bruce Morrison & C. Roderick Wilson eds., 2004) [hereinafter Hunting and the Quest for Power I ]. 235 See Boyce Richardson, Strangers Devour the Land: the Cree Hunters of the James Bay Area Versus Premier Bourassa and the James Bay Development Corpora- tion 22 (1975). 236 The information that follows regarding the Cree Indian Nation is taken from Richardson, supra note 235, at 20, 22, 27, 327–29; see also Hunting and the Quest for Power I, supra note 234, at 113–14 (providing background information for the discussion of the La Grande River project that follows). 237 Catholic Encyclopedia (2005), available at http://www.newadvent.org/cathen/ 04477a.htm; see Hunting and the Quest for Power I, supra note 234, at 101. 238 See, e.g., Encyclopedia of North American Indians, available at http://college. hmco.com/history/readerscomp/naind/html/na_009000_cree.htm (last visited Apr. 18. 2006) (noting that the Cree story has its origins around James Bay in prehistoric times). 2006] O Canada! 215

displacing the Blackfoot and other tribes.239 They were entrepreneu- rial with other tribes and then with Europeans. They trapped and traded freely and, according to the explorer Mackenzie, one of the ªrst Europeans to know them, they were sharp negotiators but “natu- rally generous, good-tempered, and honest.”240 Catholic missionaries a century later reported them “high in morality.”241 Depleted elsewhere by white settlements and disease, the James Bay Cree remained almost entirely on their own in the north woods, with its cold winters and summer rains and legendary biting insects, intact and self sufªcient, a hunting culture with a sophisticated ethic towards the place they lived. The James Bay projects would challenge the Cree ethic and independence, face on.

A. Planning by Surprise: La Grande

When the dams are built where will the animals go? The caribou won’t know which way to go. —Samson Nahacappa, hunter, Cree Nation 242 There were in fact three lawsuits, each one brought by the Cree against the James Bay projects. They ªled the ªrst one in 1971,243 immediately upon learning the Quebec government’s plans for the La Grande and its watershed, two-ªfths of the Cree territory. The Cree complaint was deceptively simple. These were their lands; Quebec couldn’t just come and take them. They ended up in a provincial court before provincial Judge Albert Malouf, whose middle-eastern background perhaps found more resonance with the plaintiffs than with the many corporate and government attorneys.244 An Indian law expert by the name of James O’Reilly represented the Cree, and in ªre and elo- quence he was Irish to the bone.245 Lead attorney for Quebec was Jacques LeBel, who by coincidence was the brother-in-law of Quebec Premier Robert Bourassa, author and champion of the James Bay

239 See id.; Catholic Encyclopedia, supra note 237. 240 Catholic Encyclopedia, supra note 237. 241 Id. 242 Richardson, supra note 235, at 179. This magniªcent book, written by a Montreal newspaper reporter who left his job to follow the Cree and the LaGrande project, presents a full account of the ªrst Cree lawsuit against the James Bay development. 243 See generally Kanatewat v. James Bay Dev. Corp., [1974] R.P. 38 (Can.) [hereinafter Kanatewat I ] (note that this case has been incorrectly titled in the reporter as Le Chef Max “One-Onti” Gros-Louis c. Société de développement de la Baie James). 244 Richardson, supra note 235, at 30. 245 Id. at 24. 216 Boston College International & Comparative Law Review [Vol. 29:175 plan.246 It was an environmental case, but under a different name and a different set of rules. The root issue was whose lands these were and what the project was going to do to them. To the government it was no contest, and they treated it that way: Canadian lands belonged to the provinces and the impacts of the project would be beneªcial to everyone, including the Cree. The Cree case was an inextricable mix of history, religion and ethics, all centered on the hunting way and its relation to the lands, waters, and animals on which it depended. Today, we would use the phrase “the environment” but, as the trial would reveal, no such word began to convey the meaning of this relationship to the Cree. Frank Speck, an early ethnographer, called Cree hunting a “religious occupation.”247 A later researcher, Harvey Feit, set out in a doctoral thesis to study one Cree hunting community on the shores of James Bay.248 He was suspicious, he later wrote, of popular images of these Indians as either “ecological saints” or as “wanton over-exploiters.”249 What he found was a complexity in the order of Catholic or Talmudic doctrine. Hunting was the organizing principle of Cree life, and the word itself had at least ªve separate meanings ranging from observing to lying in wait, from taking game and fetching, to growing and continuing to grow.250 Every element in nature had its spirit, and the closest to humans were animals, who had their own ethics and who, at appropriate times, gave themselves up to humans to be killed. Successful hunters, Feit observed, demonstrated “competence because they maintain that delicate balance with the world in which animals die and are re- born in health and in continuing growth.” Over-harvested animal populations became “angry” and denied the hunter. These were not just words. For centuries Cree wardens had supervised individual hunting territories of more than a hundred square miles, monitoring the game, advising the hunters, limiting the take, and reinforcing the ethic. All the things that environmentalists would come to say about the in- terconnectedness of life and its spiritual dimension, the Cree lived. But not, perhaps, for very long. There never would be another collection of witnesses like these. Brought in from the high woods, the Cree hunters

246 Id. at 34. 247 Harvey A. Feit, Hunting and the Quest for Power: The James Bay Cree and Whitemen in the 20th Century: Part I: The Contemporary Cree Hunting Culture (2004), available at http://arcticcircle.uconn.edu/CulturalViability/Cree/Feit1/feit1.html. 248 Hunting and the Quest for Power I, supra note 234, at 101. 249 Id. 250 See id. at 102. The description of the Cree hunting ethic is taken from this source. 2006] O Canada! 217

and their families gave their testimonies and then wandered the streets of the city, marveling at the trafªc, the height of the buildings, and the volume of trash.251 To the whites, of course, all of this was incomprehensible. The more so because the Cree witnesses spoke in several dialects and the proceedings were conducted through translators into both English and French.252 If one wanted to listen at all. One witness writes that it was a “dialogue of the deaf” for the provincial and corporate lawyers, “who began the case without really thinking it was necessary” and only woke up to the fact that the judge was paying attention as the proceedings wore on.253 Judge Malouf was respectful to the native witnesses, asking one, whose answers had been cut short in cross-examination, if he had ªnished his answer. “It’s ok,” said Billy Diamond, a Cree chief.254 “It’s not ok,” the judge said, “If you have not ªnished it you will be given the opportunity to ªnish it. That’s why we’re here.”255 After a few days of testimony, he rejected the government’s motions to dismiss. There were real issues here, he said.256 There were two real issues, one of law and one of fact. The legal case was of ªrst impression and rather breathtaking: were these really Cree’s lands? To the Cree, of course, the very idea of ownership was counter-cultural. “It is quite ridiculous,” said Cree hunter Ronnie Jolly, “this idea of the white man that a person can own all of the earth, and everything under it, and everything that moves on it.”257 As was the idea of money, particularly money in compensation for the loss of land. William Rat testiªed, When you talk about money I do not really know the value of it. I do not use it very often . . . . It is the white man who has the money, and on the other hand, the Indian has the land. The white man will always have the money, and will always want to have the land.258 Losing the land would be “like losing my life,” he said.259 He meant, of course, much more than land; he meant a relationship to the land

251 Richardson, supra note 235, at 28. 252 Id. at 23. 253 Id. at 23, 27. 254 Id. at 41. 255 Id. at 42. 256 Id. at 30. 257 Richardson, supra note 235, at 104–05 (photo caption between pages). 258 Id. at 246. 259 Id. See also the testimony of Job Bearskin:

218 Boston College International & Comparative Law Review [Vol. 29:175 as strange to the government attorneys who were examining him as a relationship with Mars. O’Reilly’s legal argument was that the Cree and other tribes had always been protected by the English Crown, and that the settlers were instructed as explicitly as in instructions from King George III to the Canadian Governor in 1763 “not to disturb them in the Possession of such Parts of the said province as they at present occupy or possess.”260 From then on, all acts of government from the Crown and Quebec, including extension of the Province north to James Bay, were done in recognition of “the rights of the Indian inhabitants,” subject only to later, negotiated treaties.261 Which in this case had not taken place. All of which, to O’Reilly, meant that the Cree had land rights. These rights had been abrogated by the sudden, massive, and unan- nounced James Bay plans. The government’s primary defense, besides their conviction that the Cree claims were unthinkable, was that the Cree had abandoned their described lifestyle some time ago. And if they hadn’t, it was high time they should. Wasn’t it a fact that the Cree used outboard motors now?, asked the government attorneys. Yes, a Cree answered, but we also go upriver by canoe.262 Don’t the Cree use ski-dos and snowmo- biles? Yes, a Cree answered, but when people leave for their traplines they still go by dogsled and wear snowshoes.263 What were the Cree witnesses eating in Montreal . . . white man’s food, no? Answer: “I have come to the stage that I can hardly eat this food.”264 Cree hunter John Kawapit continued, “When I go back home to Great Whale River I’ll be able to eat better, because I will be eating the food that I have been eating in the past.”265 But were they telling the truth? One forty- two-year-old Cree hunter had been called in by his Chief to testify about the effects of a James Bay access road across his trapline. In the courtroom he was asked to put his hand on the bible and swear to tell

It can never be that there will be enough money to help pay for what I get from trapping. I do not think in terms of money. I think more often of the land because the land is something you will have for a long time. That is why we call our traplines, our land, a garden. Id. at 121. 260 Id. at 26. 261 Id. 262 Richardson, supra note 235, at 35. 263 Id. 264 Id. at 42. 265 Id. 2006] O Canada! 219

the truth. A long dialogue with the translator ensued. “He does not know whether he can tell the truth,” the translator told the judge. “He can tell only what he knows.”266 The government’s main witness was an anthropologist who said that the Cree culture described was on the verge of collapse.267 He gave it seven years, maximum. And, for the Cree’s own good, the sooner that they adapted to the white man’s ways the better. To be sure, “bringing up 16,000 whites” into the middle of the Cree society, for conjunction of a project of this size, “the shock [was] going to be brutal.”268 But it was perhaps “the only way to make a culture react,” and then “really begin to participate” and “take its development in hand.”269 The Cree’s anthropological witness, the above-mentioned Harvey Feit, held a different view.270 Feit, who had lived with the Cree for several years, described a struggling but still self-sustaining culture. In fact he saw considerable potential for adding more Crees to the subsistence hunting culture. If these people were to adapt successfully to the white man’s life, he said, it would have to be incrementally and over time. A sudden shock would destroy them. The shock came instead from Judge Malouf. Capturing seventy- eight days of testimony from 167 witnesses, and after several months of deliberation, his 170 page opinion found as a matter of law that England and then Canada had always treated the Indians as sover- eigns of their land and undertook to possess their lands by treaties or other negotiations, not by simple appropriation.271 While Native conceptions of property ownership differed from that of the whites, they had their own rules and legally protected rights. On the facts, he cred- ited the Cree witnesses and several supporting scientists, who testiªed to severe disruption of the culture and livelihoods by even the access roads and preliminary construction works. In a detailed (seventy page) summary of the evidence, he documented the “dependence of the indigenous population on the animals, ªsh and vegetation in the territory,” on which the works would have “devastating and far reaching effects.”272 Seeing the law, facts, and equities so plain, he found

266 Id. at 46. 267 Id. 268 Richardson, supra note 235, at 247–48. 269 Id. at 248. 270 Id. at 249. The description of Feit’s testimony that follows is taken from this source. 271 Id. at 20, 296–97. 272 Id. at 298–99. See generally Kanatewat I, R.P. 38. 220 Boston College International & Comparative Law Review [Vol. 29:175 that the loss of the Cree way of life “far outweigh[ed]” the monetary losses to the corporations. He enjoined the project.273 Quebec’s response was disbelief, then deªance. With the eager assistance of an inºamed media, it presented itself as the victim of a robbery with catastrophic losses of income, jobs, and a secure future.274 It accelerated project construction. (Have we seen this before?) The weekend following the stop order, with work proceeding apace, it imposed a news embargo on the area; pilots who ºew reporters in to see what was going on would lose their licenses.275 The James Bay Corpo- ration rushed to ªle its appeal and to stay Judge Malhouf’s injunction.276 Within days the appellate court heard the stay motion. They had questions only for attorney O’Reilly, none for the government, and the tenor was not friendly. (Opening question: “Well, Maitre O’Reilly, what have you got to say?”).277 Within ªve hours the stay was lifted. A Cree appeal to the Supreme Court died.278 The construction continued to roll. Quebec, Saskatchewan, and Alberta were all reading out of the same playbook: construction beats law. Then fate took a hand. Throughout the winter and in extreme cold, construction stalled at the primary dam site.279 Two rival unions had a falling out. After a series of minor ºare-ups, a group of workers seized some bulldozers and other heavy equipment and rammed it into the power plant. Then they set it on ªre. The company was forced to ºy the entire crew out, 1400 men. The work stopped for months. Asked by a reporter for his reaction to these events, a local Cree said, “If you don’t quote me, I’ll tell you; it sure as hell beats an injunction.” The respite was short-lived. By the next summer the appeals court was ready to hear the James Bay Corporation’s case and rule. It was aided by two compendious briefs, in four volumes, two from each side.280 The one that they evidently read more closely was from James Bay. In this brief, and in the court’s opinion which was in large part in- distinguishable from it, the Canadian Shield was not the homeland of Cree Nation but, rather, the Quebec frontier already settled by whites

273 Richardson, supra note 235, at 29. See generally Kanatewat I, R.P. 38. 274 See generally Kanatewat I, R.P. 38. 275 Richardson, supra note 235, at 299. 276 Id. at 300. 277 Id. 278 Id. at 301. 279 Id. at 301–02. The description of the disturbance that follows is taken from this source. 280 Id. at 311. 2006] O Canada! 221

and in need of their improvement.281 The Cree life described by Judge Malhouf was ancient history. Justice Turgeon, writing the main opinion for the court, agreed with the corporation on “the lack of importance of country food in the diet of the Indians,” who ate “as do people in- habiting the urban centres.”282 He found that “a considerable number of [Cree] occupy interesting jobs” and did not “give themselves over to hunting and ªshing except [for] recreation.”283 The James Bay project would provide a “salutary shock” to these people and “help in the elaboration of the necessary policies of transformation.”284 The Justice chided the trial court for failing to “see in the proof all that these conºicts could bring of a positive nature.”285 Positive to the environment, as well. Far from drowning out ªsh and wildlife, the dams and reservoirs would actually increase wildlife populations and spare them the hazards of uncontrolled nature and ºooding.286 As for native rights to the land and its resources, they simply did not exist and never had, not since the King’s ªrst charter to the Hudson Bay Company.287 Judg- ment reversed. The Cree’s ªrst lawsuit failed in court, but its attendant publicity succeed in prompting the government to negotiate terms for the now inevitable La Grande phase of the James Bay development.288 With the construction in full swing and no leverage from the law, the Cree were under enormous pressure to take whatever they could get.289 Chief Billy Diamond later explained, “we saw the need to limit the damages, seek remedial works and have certain fundamental rights recognized . . . . We really had no other choice.”290 The government added pressures of its own. Again, Chief Diamond: “not only did the negotiators come in with [surrender of land claims] as a condition which was not subject to discussion or debate, but Canada made it clear that if we did not proceed with the agreement process, unilateral legislation would

281 Richardson, supra note 235, at 312. 282 Id. at 313; see generally Kanatewat v. James Bay Dev. Corp., [1973] 41 D.L.R. (3d) 1. 283 Richardson, supra note 235, at 313. 284 Id. at 314. 285 Id. 286 Id. at 315–16. 287 Id. at 316. 288See generally Harvey A. Feit, Hunting and the Quest for Power: The James Bay Cree and Whitemen in the 20th Century: Part III: Cree Autonomy and the Aboriginal Rights Agreement (2004), available at http://arcticcircle.uconn.edu/CulturalViability/Cree/Feit1/feit3.html [hereinafter Hunting and the Quest for Power III ]. 289 Richardson, supra note 235, at 319. 290 UNI, Sovereign Injustice: Relevance of the James Bay and Northern Quebec Agreement, http://www.uni.ca/library/si_sect08.html (last visited Apr. 18, 2006). 222 Boston College International & Comparative Law Review [Vol. 29:175 have been imposed on us in any case.”291 Nor were the pressures limited to future threats. In November 1993, the Grand Council of the Cree explained, “the position of our people was desperate, and programs upon which we depended were being cut and frozen, including while negotiations were underway.” Against this backdrop, it is remarkable that the Cree walked away with anything at all.292 What they walked away with was the James Bay Northern Quebec Agreement, ratiªed by the Cree Nation (described as “very reluctant”) and the Canadian Parliament. The agreement extinguished native land claims in return for the creation of small, Cree-owned reserves and a $225 million payout.293 The Cree maintained hunting rights and, under state supervision, their own regulatory scheme.294 The La Grande project would go forward, but the location of its major power plant would be moved one rapid upstream, saving a historic Cree rendezvous of central cultural and religious importance.295 No other project modiªcations were obtained. No river would be spared. And so, the project described by Quebec Premier Bourassa as a “conquest” of the Canadian North296 went forward. Twenty years later a brochure of Hydro Quebec, the $34 billion utility charged with realizing this conquest, urged the reader to “Follow the Energy Road!,” where “You will experience the inªnite landscapes and brilliant skies where thousands of Quebec workers built the La Grande complex.”297 Thousands of Quebec workers but very few Cree.298 As of 1991 only ªve residents of the town of La Grande worked for Hydro-Quebec.299 Half the town was unemployed, and the entire population suffered from “alarming rates of alcohol abuse, teenage pregnancy, divorce, and suicide.”300 The hydro dams had also converted harmless forms

291 Id. 292 Id. 293 Alex Roslin, Cree Denounce Quebec, Assert ‘Control’ of Lands; Withdraw from Treaty to Pro- test Judge’s Replacement, Montreal Gazette (Mar. 10, 2000), available at http://www.nben. ca/environews/media/mediaarchives/00/cree.htm; see also Hunting and the Quest for Power I, supra note 234, at 114–19 (describing the Cree’s negotiation and implementation of an autonomy agreement). 294 Hunting and the Quest for Power I, supra note 234, at 115. 295 Hunting and the Quest for Power III, supra note 288. 296 See Sean McCutcheon, Electric Rivers: The Story of the James Bay Project 34 (1991). 297 Linton, supra note 227, at 28. 298 A subsequent Parliamentary inquiry revealed massive corruption in the La Grande complex construction, and near-total exclusion of the Cree, in violation of the James Bay Agreement. Richardson, supra note 235, at 321. 299 Id. 300 Linton, supra note 227, at 30. 2006] O Canada! 223

of mercury, leached from the trees and soils, into to methyl mercury, toxic to ªsh and humans.301 By 1984, a study of the Cree community of Chisasibi, downstream from the La Grande complex, found 64% of the residents carried methyl mercury levels above the toxic threshold.302 Hydro-Quebec responded by telling the Cree to eat less ªsh.303 Asked about the positive impacts of the project on the community, Sappa Fleming, the former Mayor of the Inuit population in Great Whale, said, “Well, my children can choose from six different kinds of potato chips at the Northern [grocery store] . . . I suppose that is a kind of progress.”304 The same brand of progress came to the wildlife of the region. When the massive sluices and diversions opened in the 1980s, 10,000 caribou drowned making the crossing in the modiªed and unfamiliar waters.305 Migration patterns throughout the region were scrambled. One old-timer said, “The geese have lost their way.”306 The ªrst Cree lawsuit against the James Bay development had two other impacts not lost on the Cree or anyone else. The ªrst was to politicize a loose grouping of tribes and family groups into a centralized Cree Council with allies in politics, international assemblies, and the rising environmental community. The second was to underline the need for legal leverage and to ªnd it beyond Indian claims in the emerging ªeld of environmental law. The cases to come would be based on the same claims raised in the Rafferty-Alameda and Oldman dam cases. Once again, Canada would claim no responsibility for the projects. Indeed, it would claim no responsibility under the James Bay Northern Quebec Agreement either. These claims would be put to the test as Quebec now moved to phase two of the James Bay development, Great Whale.

301 Verhovek, supra note 230. 302 Id. 303 Id. 304 Id. 305 Linton, supra note 227, at 30. 306 Id. 224 Boston College International & Comparative Law Review [Vol. 29:175

B. Great Whale I

[T]he central question about the Great Whale Basin is this: Should large parts of it be underwater? —Sam Howe Verhovek, The New York Times The Great Whale is a special river even by Canadian standards, an entire country of special rivers. It inspires poetry out of hard-nosed journalists and scientists alike. One reporter writes, As the Great Whale river rises east out of Hudson Bay in northeastern Canada, its broad sandy shores quickly give way to a carpet of light-green lichen studded with granite outcrop- pings. Beyond the banks lies a vast expanse of black spruce and tamarack, great coniferous forests, broken here and there by lakes and bogs and kettle ponds.307 It is a landscape that teems with life in fall and spring, he continues, “when enormous herds of caribous stomp across the earth and millions of migratory birds tarry in the estuaries of James and Hudson Bays, some stopping to double their weight as they feast on eelgrass and coastal shrimp before ºying as far south as Tierra del Fuego.”308 It is also one of the least studied landscapes in North America, one of the farthest from urban centers and universities, but this much is known: “With its many rapids and falls, and its canyons and cliffs, it is a spectacularly beautiful river.”309 With one extra twist. The conºuence of the Little Whale River and James Bay is a gathering ground for Beluga Whales—“small, strikingly white creatures” against blue water that return every summer.310 They do not come to calve or feed but to rub off their old skins on the shallow rocks and “frolic” in the surf. Hence the name. Only the Beluga no longer come to the mouth of the Great Whale. They were wiped out of this migration years earlier by the Hudson Bay Company. But several hundred Beluga come to the mouth of the Little Whale River, which would be eliminated by the James Bay development project, phase two.

307 Verhovek, supra note 230. 308 Id. 309 McCutcheon, supra note 296, at 140. 310 Id. at 165. The description of the beluga whales that follows is taken from this source. 2006] O Canada! 225

The Great Whale project began for the Cree exactly as the La Grande had. Without notice.311 But not by surprise, because back from political exile to lead the province of Quebec once again was Robert Bourassa. His passion for the project had not changed. Nor had his attitude towards the Cree. As he explained to the press, “conquerors are not courteous.”312 A Cree summary of the battle that followed notes that, “in 25 years of dealing with us, he never once, not even to the day he died, visited a Cree village.”313 Nor had the project changed its pos- ture towards the environment. One historian writes: “That the James Bay rivers should be turned to electricity to feed the world’s hungriest and greediest energy markets and that James Bay itself should become the continent’s water tank” was, in Quebec’s view, “rational and inevitable.”314 A consultant for the project company explained, “In my view, nature is awful, and what we do is cure it.”315 The Cree were not going to take this one lying down any more than they had the last. “We would like to avoid violence,”316 said Bill Namagoose. “It gets you a lot of publicity, but you can’t eat publicity. We don’t want to lose our land.”317 They elected a new Grand Chief, Matthew Coon-Come, a young, slim, and passionate man with a ºair for oratory and a mandate to stop the hydroelectric development.318 Quebec professed surprise, arguing that the Cree had, in the James Bay Agreement, accepted that “these known projects and any addi- tions or substantial modiªcations to Le Complex La Grande” shall be considered as “subject to the environmental regime only in respect to ecological impacts” and that “sociological factors or impacts” would not be grounds for the Cree to “oppose or prevent the said developments.”319 To which the Cree replied that this surrender of claims applied only to La Grande, phase one, and not the phases to come.320 And further, even if otherwise, the entire Agreement was void for the above-mentioned duress, throw in fraud, misrepresentation, and non-

311 Id. at 42. 312 Id. 313 Grand Council of the Crees (of Quebec), Cree Legal Struggle Against Great Whale Pro- ject (2000), http://www.waseskun.net/cree.htm. 314 See McCutcheon, supra note 296, at 148, quoting Camille Dagenais, former head of SNC, an engineering contractor for Groupe Lavalin, which constructed the La Grande complex. Id. at 145. 315 Id. at 148. 316 William Walker, Who Controls the Environment?, Toronto Star, July 14, 1991, at B4. 317 Id. 318 McCutcheon, supra note 296, at 152. 319 Id. at 154. 320 Id. at 155. 226 Boston College International & Comparative Law Review [Vol. 29:175 fulªllment by Canada of its part of the bargain.321 Whatever the merits of these positions, they put all the more weight on the forthcoming environmental review. Familiarly, by now, Quebec was determined to keep whatever environmental review was necessary at home and ªrmly under its thumb. Hydro-Quebec’s ªrst move was to split the project in two parts—(1) the main power projects and (2) the access and logistical support (roads, airports, construction camps)—and then offer an assessment of part one only, thereby avoiding consideration of the whole.322 Both Quebec and federal authorities approved.323 Once the Hydro-Quebec assessment was made, under the Quebec process members of environmental review committees did not get to ask their own questions for the company to answer.324 One observer commented, “They were like people judging a job candidate on the basis of her answers to her own questions.”325 Better yet for Hydro-Quebec, questions of the need for the project, its purposes, alternatives, and basic design were not on the table either.326 Only those measures to attenuate project impacts were germane.327 The cheapest of which was paying money. The company had paid the Cree upwards of $100 million to expand their project at La Grande.328 Then, they said, even for the Cree it’s all about money. The Cree replied that there was no reason not to take it: Hydro-Quebec had destroyed the La Grande river by that point anyway.329 To both sides, though, the main chance was the new $12.6 billion project on the Great Whale River and its tributaries, the most northern of the three phases of the James Bay project, involving hundreds of kilometers of new roads and power lines, three new power stations, ªve new reservoirs, and ºooding 4400 more square kilometers of lands and waters.330 Faithful to the game plan that had proven so successful in Rafferty-Alameda and Oldman, Hydro-Quebec let bids for the clearing of the main access road.331 The question was whether

321 Id. See generally Alison Gale & Michelle Marcellus, James Bay II: Power Over Land, Economy, People, Between the Issues, Mar. 1991. 322 McCutcheon, supra note 296, at 181. 323 Id. 324 Id. at 183. 325 Id. 326 Id. 327 Id. 328 McCutcheon, supra note 296, at 155. 329 Id. (stating that it was already a ruined river). 330 Id. 331 Grand Council of the Crees (of Quebec), supra note 313, at 1. 2006] O Canada! 227

(the desires of Quebec and Hydro-Quebec notwithstanding) any of this would receive federal environmental review. And if so, so what? The ªrst answer to the ªrst question was: yes. Canadian Minister of Environment Lucien Bouchard, a Quebecois as well but one who had been scorched by his ineffectual responses in the previous dam cases, admitted federal jurisdiction.332 In October 1989, he wrote to his provincial counterpart that, given the “considerable magnitude of this project,” it was “extremely important” that the assessment be conducted “as objectively and independently as possible,” and offered a “cooperative approach.”333 Nothing, of course, was further from Quebec’s mind. In the best tradition of the provinces, it did not even reply. One month later Bouchard tried again, this time to the newly-appointed provincial environmental minister.334 Nothing back. Meanwhile, Federal Adminis- trator of the James Bay Development, Ray Robinson, wrote the Hydro- Quebec vice president for environmental affairs and reiterated that the project was subject to federal environmental review as speciªed by the provisions of the James Bay Agreement.335 As the court later notes, “[a]n extensive period of silence then prevails.”336 One full year later, Robinson wrote to the president of the evaluation committee responsible for monitoring the James Bay development, again outlining the federal responsibilities that necessitated federal environmental review.337 He again wrote Hydro-Quebec to the same effect as well.338 At which point he appears to have undergone Miraculous Conversion. That same month, November 1990, Federal Administrator Rob- inson suddenly informed a Cree audience that he had no mandate for federal environmental review.339 One might forgive the Cree for feeling, once again, betrayed. They ªled suit. Back went James O’Reilly to court on their behalf.340 And ran into another Judge Malhouf.

332 Id. 333 Cree Reg’l Auth. v. Canada (Fed. Admin.), [1992] 1 F.C. 440, 447 (T.D. Can.) [hereinafter Cree Reg’l Auth. I ]. The description of the Communicators to Quebec and Hydro-Quebec are taken from this source. 334 Id. 335 Id. 336 Id. 337 Id. 338 Id. 339 Cree Reg’l Auth. I, 1 F.C. at 447–48. 340 The Cree actually ªled two suits against the project, the other in Quebec Court, Grand Chief Matthew Coon Come v. Quebec (Procureur Gen.), [1991] 37 Q.A.C. 293 (Can.). The provincial case was dismissed on motion of the Attorney General of Canada because it presented a federal question beyond the jurisdiction of the provincial courts. 228 Boston College International & Comparative Law Review [Vol. 29:175

Unlike the La Grande case, federal Judge Rouleau was not un- duly inºuenced by a year of testimony and reºection.341 Nonetheless, his sympathy for the plaintiffs emerges from his recitation of the facts, which read like a chronicle of government bullying and lies.342 The Cree claim was that sections twenty-two and twenty-three of the James Bay Agreement required the appointment of a federal administrator to supervise the environmental impact of future development and to set up independent evaluation committees “if the development is to have any signiªcant impact” on the native people or wildlife resources of the territory.343 And so the sections read as an exact replica of the EARP guideline process. “I doubt,” noted Judge Rouleau dryly, “that anyone can suggest that the Great Whale phase of the James Bay project will not ‘interfere with wildlife and its habitat, resulting in drastic changes to the traditional way of life.’”344 Of course, Hydro-Quebec was not ready to concede any such thing and had already once mar- shaled an army of witnesses and lawyers to say so.345 Denial of impacts was not, however, its main defense. Instead it was denial of the Agreement. Simply put, Quebec and Hydro-Quebec argued, apparently with a straight face, that the Agreement was not law. It was only a contract, never a statute, and contracts are not enforceable in federal court.346 When it came to dealing with First Nations, the white man’s promises seemed to hold little more water north of the border than they had in the United States. Judge Rouleau, however, read the Agreement the other way. The Parliament, he wrote, in approving the Agreement, clearly required certain conduct of federal ofªcials, including the Federal Administrator Robinson.347 Even if the law were unclear, the court continued, “the sovereign’s intention must be clear and plain if it is to extinguish aboriginal rights.”348 The court concluded, in terms that would have gladdened Judge Malhouf’s heart as much as it dark- ened others in Montreal and Ottawa:

341 See Cree Reg’l Auth. v. Quebec (Procureur Gen.), [1991] 42 F.T.R. 160, 161–63 (Can.) [hereinafter Cree Reg’l Auth. II ]. 342 See id. at 162–63. 343 See id. at 164. 344 Id. 345 See id. at 163. 346 Id. 347 Cree Reg’l Authority II, 42 F.T.R. at 165–66. 348 Id. at 166. 2006] O Canada! 229

I feel a profound sense of duty to respond favorably. Any contrary determination would once again provoke, within the native groups, a sense of victimization by white society and its institutions. This agreement was signed in good faith for the protection of the Cree and Inuit peoples, not to deprive them of their rights and territories without due consideration.349 Having found federal jurisdiction, the rest was short work. The government’s attempt to bury the environmental review at the provincial level was “intended both to appease [local authorities] and circum- vent the native populations” and appeared to have been negotiated by the governments “in an attempt to free themselves” from the responsibilities of federal review.350 The federal government’s argument, further, that it had no responsibility to act until Hydro-Quebec submitted its assessment for review was, in the court’s view, “entirely spurious;” Hydro-Quebec could, by this logic, simply withhold its assessment, a “ludicrous result.”351 Pointing out that federal review could not, as with the EARP guideline order, enjoin the project, Judge Rouleau expressed his astonishment that the government would resist it: “[I]f one accepts the federal government’s argument that it is willing to comply with its obligations towards the native people of this country, one is at a loss to understand its refusal to fulªll that original contractual obligation” in the James Bay Agreement.352 One can sense the anger. The implication was clear. The federal government, however, facing a hostile Quebec, was by no means anxious to fulªll its obligations towards the Cree or anyone else. The government, of course, appealed. The appellate opinion was long, technical, and focused nearly exclusively on the question of federal jurisdiction.353 At journey’s end, it wound up where Judge Rouleau had: Great Whale was subject to federal environmental review. At long last, embarrassed by the press, castigated by the courts, mocked by the provinces, reeling from the after-effects of its timidity in Rafferty-Alameda and Oldman dams, dragged into the ring with its heel marks all the way down the aisle, in July 1991, the Canadian Environment Ministry announced that if Quebec did not want to cooperate the federal government would

349 Id. 350 Id. 351 Id. 352 Id. See generally Quebec (Attorney Gen.) v. Cree Reg’l Auth., [1991] 43 F.T.R. 240 (F.C. Can. A.D.) [hereinafter Cree Reg’l Auth. III ]. 353 See generally Cree Reg’l Auth. III, 43 F.T.R. 240. 230 Boston College International & Comparative Law Review [Vol. 29:175 conduct the review of the Great Whale project on its own.354 Soften- ing its punch, it added that it could not guarantee that Quebec would delay construction until the environmental ªndings were released.355 Even this concession was not enough for Quebec’s Energy Minister, who told reporters that the province would “never submit” to Ottawa’s procedure, adding that what the federal government was doing was “illegal.”356 Illegal or court-ordered, below the bluffs and threats, the federals were now in the game and the time, information, and project delays obtained in their review would prove critical for the Cree.

C. Great Whale II

We wish we had never signed the James Bay Agreement. Its terms have not been honored. You might as well just put a stone around our necks and drown us in the reservoirs. —Matthew Coon-Come, Grand Chief, Cree Nation 357 In spring 1990, one the strangest processions of the century made its way by water and truck down from the Inuit and Cree villages along James Bay, south to Montreal, and then down the Hudson River to New York City.358 It was the brainchild of a U.S. kayaker named Denny Alsop who had canoed rivers on the Canadian shield now to be ºooded by the James Bay project.359 One angry American. At his sug- gestion, the Cree and Inuit built a new kind of boat with the bow of an Indian canoe and the stern of an Eskimo kayak, to which they gave the hybrid name Odeyak. On April 20, Earth Day, with press boats following and helicopters overhead, the Odeyak, supporting canoes and sixty Cree and Inuit, reached Times Square. First to speak was Mathew Coon-Come. “Hydroelectric development is ºooding the land, de- stroying wildlife and killing our people,” he said.360 They would change Hydro-Quebec’s world. The environmental review mandated by Cree II now unfolded on two fronts, each feeding the other and making life increasingly difªcult for the Great Whale project. One was in Canada, where Hy-

354 See id. 355 Id. 356Walker, supra note 316, quoting Lisa Bacon, Quebec Minister of Energy. 357 McCutcheon, supra note 296, at 153, quoting Matthew Coon Come, Grand Chief, Cree Nation. 358 Id. at 185–86. The description of the ºotilla that follows is taken from this account. 359 Id. at 185. 360 Id. at 185–86. 2006] O Canada! 231

dro-Quebec and its allies hoped to complete the process within a year.361 Instead, the Cree and other opponents packed the “scoping” meetings that deªned the review362 which, now federal, was not bound by Quebec’s will-of-the-applicant standard. The assessment rules that emerged were exigent, requiring, among other things, consultation with the Cree and Inuit communities. Hydro-Quebec cob- bled together 5000 pages of studies going back to the ªrst litigation, and, in its haste, gave short shrift to the consultation. Its environmental assessment would end up before three independent review committees, two under the Federal Administrator and established by the James Bay Agreement and the third under the Ministry of Envi- ronment and the EARP guidelines order. The corporation demanded a response within forty-ªve days. The summer construction season was passing and loans were pending. Time was not on Hydro’s side. There was a fourth venue, however. It could not have been anticipated by anyone, and it proved dispositive. Much of the market for the Great Whale project lay south of the border in the New England states.363 Americans had always been big players in Canadian hydroelectric projects; in fact they owned the ªrst ones outright, and U.S. lenders ªnanced much of the La Grande works, phase one.364 In the late 1980s, Hydro-Quebec signed power sale contracts with Vermont and Maine, but the big one was an “agreement in principle” for twenty-one years of supply to the New York Power Authority.365 The New York contract was predicted to meet 6% of the state’s total energy needs by the end of the century and bring up to $40 billion in revenue to Hydro-Quebec.366 The project cost about that much to build. Which is to say that New York held the cards. And its agreement was only “in principle.” Opposition to the Great Whale project along the southern tier began not with its impacts on the distant Cree but with the arrival of gigantic transmission corridors across the towns and dairy farms of Quebecois along the American border.367 People feared the power lines, their size, sight, magnetic ªelds, and the herbicides needed to

361 See Grand Council of the Crees, supra note 313. The description of the scoping and assessment that follows is taken from this account. 362 See generally McCutcheon, supra note 296. 363 Id. at 92–94. 364 Id. at 160; Grand Council of the Crees, supra note 313, at 2. 365 McCutcheon, supra note 296, at 138; Verhovek, supra note 230. 366 McCutcheon, supra note 296, at 138. The description of the opposition that follows is taken from this source. 367 Id. at 159–63. 232 Boston College International & Comparative Law Review [Vol. 29:175 maintain them. They learned about them not from Hydro-Quebec but from American groups and newspapers. Raising these questions they found the company “arrogant” and “contemptuous of the public;” they “tried to mislead.” The allegations had a familiar ring. Coali- tions of consumers, churches, unions, and environmental and native peoples groups began to oppose the project. They set up an ofªce in Montreal. Below the border, a group of residents calling themselves PROTECT (Prudent Residents Opposed to Electrical Cable Transmis- sion) formed to oppose a line across the New York countryside. No Thank Q Hydro-Quebec campaigned against the lines in Maine and then, breakthrough, succeeded in persuading state legislators to reject the Hydro contract for failure to consider cheaper options such as energy efªciency. Then, in New York, the wheels came off. Organizations of every stripe, singly and in coalitions, began to lobby politicians to cancel the New York Power Authority agreement.368 At one point there were at least thirty anti-Great Whale groups on college campuses throughout New York State, and more elsewhere across the Northeast. To Hydro- Quebec and its supporters, Great Whale electricity was a no-brainer for New York: “clean” power, no air emissions, good rates, long term stability.369 But the opponents raised a larger moral question: was this source clean, or, in the words of a New York reporter, “simply tanta- mount to exporting environmental and cultural destruction to the taiga”?370 Hydro-Quebec’s campaign featured pictures of its employ- ees “carefully airlifting animals to safety from islands created by the ºooding.”371 They didn’t persuade one Buffalo politician, who spoke for many when he said that New York should avoid becoming “an ac- complice to the crime.”372 And then the Cree, Inuit, and Mathew Coon-Come appeared in Times Square. At this point, the Hydro-Quebec ball was no longer in Canada’s court; it was in Albany with then-Governor Mario Cuomo. The New York Power Authority had already ºexed its muscle with the company. In a letter to the New York Times, the Authority’s Chairman related: “Largely at my urging Hydro-Quebec agreed not to begin construction of roads and other ancillary features until the entire project has

368 Id. at 161–62. 369 Verhovek, supra note 230. 370 Id. 371 Id. 372 Id. 2006] O Canada! 233

undergone review.”373 He continued: “I have personally advised Hy- dro-Quebec that we will not buy a single kilowatt of its power unless environmental and native peoples’ concerns receive full scrutiny under Canadian procedures.”374 In a single stroke, the New York Power Authority had succeeded in accomplishing what the Canadian Minis- try of Environment had been unable to do in three tries from Rafferty to Oldman to Great Whale, and it was the most obvious step in the world: stop construction pending environmental review. In late 1992, Governor Cuomo cancelled the $22.7 billion twenty-one-year agreement to buy Hydro-Quebec power, citing lack of future power demands.375 He had become a believer in “least cost,” demand-side management: energy efªciency instead.376 A year-and-a-half later, with the Great Whale still alive and under Canadian review, a third Cree lawsuit came down from the Canadian Supreme Court.377 Hydro-Quebec not only needed U.S. purchasers, it needed the all-clear from the Canadian National Energy Board to export the electricity.378 The Board’s mandate, inter alia, required a ªnding that the electricity was not needed to meet Canada’s own power demands in the foreseeable future.379 The licensing process began in the late 1980s and, while it was in progress, the Canadian Parliament, conveniently for Hydro-Quebec, repealed this “Canada ªrst” requirement, leaving only a highly discretionary standard that the sale be in “the public interest.”380 Vague standards like this are usually a joy to the regulated community. They release the regulators from pressures of law and subject them all the more to the pressures of politics. In this case, though, the Energy Board did not give Hydro-Quebec carte blanche. The Cree and environmental groups had intervened in the proceeding to challenge the company’s beneªt-cost analysis and the Board’s exercise of its ªduciary duties towards native peoples.381 They lost on these claims but won a huge concession: the Board at- tached conditions to its license that required compliance with the

373 Richard M. Flynn, Letter to the Editor, N.Y. Times, Jan. 26, 1992, § 6, at 6. 374 Id. 375 Mark Clayton, Canadian Court Ruling Heartens Native Groups, Christian Sci. Moni- tor (Boston, Mass.), Mar. 2, 1994, at 4. 376 See id. 377 See generally Quebec (Attorney Gen.) v. Canada (Nat’l Energy Bd.), [1991] 3 F.C. 443 (Fed. Ct. Can.) [hereinafter Quebec (Attorney Gen.) I ]. 378 Id. at 446. 379 Id. at 453. 380 Id. at 453–54. 381 See id. at 443. 234 Boston College International & Comparative Law Review [Vol. 29:175

EARP guidelines and successful completion of that review process.382 Further, the scope of the environmental review would include not simply the transmission lines carrying the power out of Canada but also the “future construction of production facilities.”383 As the Board noted, the transmission impacts were minor;384 the production impacts were huge. Another review nightmare for Hydro-Quebec. It appealed, and won before a friendly appellate court.385 The inclusion of the production facilities was seen as beyond the Board’s jurisdiction and ultra vires.386 And so it was the turn of the intervener Cree and environmental organizations to appeal. They were joined by the U.S.-based Si- erra Club Legal Defense Fund and Friends of the Earth.387 And ultimately, by the Supreme Court of Canada. In March 1994, a unanimous opinion had little difªculty ªnding a relationship between the licensing of export and the production of the electricity to be exported. To exclude the production would deni- grate the environmental review process. “I would ªnd it surprising,” wrote the lead author, “that such an elaborate review process would be created for such a limited inquiry [as the transmission lines only].”388 But lurking beneath this argument was the one that has continued to haunt all of Canadian environmental law: did such a broad exercise of federal authority by the Energy Board contravene the basic, decentralized structure of the Constitution Act of 1867? Here the court did a lawyerly thing. It said that it would “expressly refrain” from “making any determinations” that interpreted the Consti- tution in this regard.389 Next, it proceeded to do so. “It must be recognized,” began the court with some understate- ment, “that the environment is not an independent matter of legislation” under the Constitution, and that it is a “constitutionally abstruse matter which does not comfortably ªt within the existing division of powers without considerable overlap and uncertainty.”390 When some- one starts using the word “abstruse,” one senses thin ice. The court had to be “careful,” it went on, “to ensure that the Board’s authority is truly

382 Id. at 443, 447. 383 Quebec (Attorney Gen.) v. Canada (Nat’l Energy Bd.), [1994] 1 S.C.R. 159, 189 (Can.) [hereinafter Quebec (Attorney Gen.) II ]. 384 Id. 385 See Quebec (Attorney Gen.) I, 3 F.C. at 446. 386 See id. at 444. 387 See generally Quebec (Attorney Gen.) II, 1 S.C.R. 159. 388 Id. at 191. 389 Id. at 192. 390 Oldman River II, 1 S.C.R. ¶ 94. 2006] O Canada! 235

limited to matters of federal concern.”391 The Oldman question, redux. The court explained: “That does not artiªcially limit the scope of the inquiry to the environmental ramiªcations of the transmission of power by a line of wire”—a statement which is up to this point clear— “but it equally does not permit a wholesale review of the entire opera- tional plan of Hydro-Quebec.”392 Which at this point is not clear at all. If the review does not include the entire plan, then how much of it? If the federal statutory authority extended to the lines and export, then how far into the access roads, power plants, and mercury toxins could the Energy Board go? Without offering an answer, the court concluded that the Board decision and its environmental conditions, which included consideration of future project construction, “struck an appropriate balance between these two extremes.”393 Court to federal agencies: we really have no idea how to reconcile federal environmental review with the Constitution. But what you’re doing here looks okay. The court was even more equivocal when it came to the question of moving forward on a project while the review was taking place. Here, it stressed that the EARP guidelines did not require the board “to suspend its decision-making until the environmental assessment of all future generating facilities is completed” (emphasis added).394 Which left unanswered the question of suspending some of the future facilities, the more imminent ones. Wringing its hands much as the Environment Ministry itself had over the same issue, the court noted that it was “preferable” to treat the environmental concerns before proceeding.395 Rather than insist on it as a matter of law (and common sense, to say nothing of the preservation of the court’s jurisdiction as well), however, the opinion simply approved the Energy Board’s retention of authority to cancel the licenses if its conditions were not met.396 All of which meant that, under Canadian law, Hydro- Quebec remained free to march forward at its own peril, loading the equities in its favor through contract commitments and sunk costs. It would sink $400 million.397 The indirection and caution of the Supreme Court’s opinion notwithstanding, Cree III complicated matters enormously for the com-

391 Quebec (Attorney Gen.) II, 1 S.C.R. at 192. 392 Id. at 195. 393 Id. 394 Id. at 198. 395 Id. at 199. 396 Id. 397 Clayton, supra note 375. 236 Boston College International & Comparative Law Review [Vol. 29:175 pany. Yet another venue for environmental review, intervention, and delay. Hydro-Quebec tried to put on a brave face, “as long as the Su- preme Court hasn’t canceled any of our contracts, we are satisªed,” said its President Armand Couture,398 but the interest on its borrowed millions was making its “cheap” electricity more and more expensive.399 Then, in mid-November of 1994, all three Canadian environmental review boards reported in. Their conclusion: Hydro-Quebec’s hastily- assembled environmental assessment was not in compliance with the EARP guidelines.400 The company would have to go back to square one. That was a very long way back. The next afternoon, the Premier of Quebec, faced with the loss of his U.S. customers, mounting opposition, and the added obstacle of new environmental reviews, threw in the towel. He announced the abandonment of the Great Whale project.401 He said he had never been in favor of it anyway.402

D. Another Requiem: The Rupert-Broadback-Nottoway

I’ve fought them for seven years, hand-to-hand combat, every day, week after week, to preserve our river. You can imagine how I feel now. —Cree negotiator, 2001 403 Stories like this should have an end, but they never do. Enor- mous amounts of money ªnd their way like water, and there is no holding them back. Perhaps the most destructive phase of all the James Bay projects was yet to come. Phase three planned to divert the ºow of the Nottoway and Rupert Rivers, legendary white waters and historic routes of the fur trade, into the Broadback River, storing the water in seven new reservoirs, sending it through eleven powerhouses, and transforming the lower portions of the Nottoway and Rupert

398 Id. 399 Id. 400 Grand Council of the Crees, supra note 313, at 7. 401 Id. 402 Id. 403 Boyce Richardson, James Bay Crees Surrender Their Great River Rupert to Indus- trial Development: Rely on Quebec Promises in Return (Oct. 26, 2001), http://www.otter- tooth.com/Reports/ Rupert/News/rupert-surrender3.htm; see also McCutcheon, supra note 296, at 141. 2006] O Canada! 237

(“one of the most magniªcent wild rivers in Canada”)404 into dry rock.405 Compared to the impacts of the Great Whale and even the La Grande, these would be far more severe.406 The shallow reservoirs would ºood about twice the area as those proposed on the Great Whale, and they and their associated roads, power lines, dikes, and diversions would destroy more southern and biologically important wild- lands.407 Inundating more vegetation, the reservoirs would also release more toxic methyl mercury downstream. These were prime ªsheries and core habitat for moose, caribou, beaver, and other species on which the Cree depended. The access roads would also open more forest for penetration by loggers, miners, trappers, oil, and gas and a host of white-owned development from the south. The majority of the Cree lived in this zone. Most of their villages and hunting grounds were here. The lands along the Rupert and Nottoway were the “veritable heartland of the Cree way of life.”408 The Cree resisted. When Hydro-Quebec ofªcials came to the mouth of the Rupert River to sell the village of Waskaganish on a joint venture this time, sharing some of the Rupert diversion proªts, they were “put into a canoe and hustled out of town.”409 But the money was huge. And the Cree were living with, by their estimate, the loss of $5 billion a year in their own resources from the La Grande and associated projects, for which they were receiving next to nothing in return.410 The interest on resistance compounded daily. In October 2001, after more than thirty years of ªghting the James Bay projects in total and ten on the Rupert-Broadback- Nottoway, the Cree capitulated.411 In a deal hauntingly reminiscent of the James Bay Northern Quebec Agreement twenty years earlier that had unleashed the La Grande project and extinguished Cree claims in return for a cash payment, relocation of one dam and joint management authority over wildlife,412 Quebec and Hydro-Quebec did it again. It is hard, it is indeed impossible, to blame the Cree. Still living

404 Richardson, supra note 403. 405 McCutcheon, supra note 296, at 141; Verhovek, supra note 230. 406 McCutcheon, supra note 296, at 163. The description of phase three that follows is taken from this source. 407 Id. 408 Richardson, supra note 403. 409 Id. 410 Id. 411 Id. 412 See Roslin, supra note 293. 238 Boston College International & Comparative Law Review [Vol. 29:175 on the margins and largely deprived of the assumed beneªts of both the earlier Agreement and the hydro development, they were at the end of their tether.413 The promised community development hadn’t happened. Very few Cree had been trained and employed with the companies. The cash payment proved inadequate. Then it ran out. At the same time, more roads, mining, timber cuts, and development kept spilling up from the south, from which the Cree were getting no cut at all. As one of the Cree negotiators explained the settlement, “I feel it is about 51 percent a good idea, and 49 percent bad.”414 This time the Cree received more autonomy and more money. They assumed authority over wildlife management and community development. And an annual cash payment rising to $70 million for the next ªfty years. Cheap for Hydro-Quebec, which, in the end, as a state monopoly, would not have to pay for it anyway. Huge money for an entire people on the brink. Which way did responsibility lie? Other provisions appeared cosmetic. Under the announced forest regime, 25% of Cree traplines would not be cut, and the rest managed by “mosaic” cutting, the kind of habitat fragmentation that dooms deep woods species. In the U.S. experience, once logging roads go in, mining, off road recreation, poaching, and the rest follow like wagon trains. The Cree would get the money. They would lose the land. Quebec left nothing to chance. The Cree agreed to drop all lawsuits and not to bring any more lawsuits against the province to enforce its obligations under the James Bay Agreement. The Cree not only gave up their heartland, they gave up their law. A Quebec northern expert, Louis-Edmond Hamelin, later commented: “nothing in this document indicates that each side has understood the culture of the other.”415

IV. Reºections on Rafferty-Alameda, Oldman and the Great Whale It is difªcult at long range, even presumptuous, for an American to draw conclusions about cases in another legal system, another web of cultures, and another set of assumptions about the way things work and ought to work. The task is better done in this case by Canadian

413 Richardson, supra note 403. The description of the settlement that follows is taken from this source. 414 Id. 415 Id. The author writes: “the Crees have, in a sense, stripped themselves naked before their long-term adversaries, and are now hoping they will keep their promises as they have not done in the past.” Id. 2006] O Canada! 239

scholars, and they do it every day. There is some value, nonetheless, in offering a comparative view of these same issues from another system, particularly one largely identical to Canada in language, in economic and social development, and in the same struggle to come to grips with environmental law. The United States experience with water projects goes back more than a century, and with environmental impact review to 1969. This author’s personal experience with both, as a liti- gator and scholar, goes back to 1971. The political shenanigans, eva- sions of responsibility, and half-hearted compliance noted in this brief history are found throughout American environmental law, never more so than the current day,416 and the American treatment of its native peoples is one of its greater disgraces. In short, the United States has little to preach or teach here. What this author hopes to offer is a more modest reºection on what these particular cases say about how Canada and the United States approach environmental responsibilities. (1) Rafferty-Alameda, Oldman and the James Bay Development litigation propelled Canada into modern environmental law and one of its primary mechanisms, environmental impact review. Prior to these cases, Canada had an opaque administrative order of uncertain application and even less certain enforcement, overlaid on a constitutional system which cast serious doubt on whether the federal government could be doing this at all. Starting with Rafferty, these doubts were put to rest, at ªrst in theory and then in practice. As they were put to rest, the public clamor for a greater federal role emboldened an under-nourished Ministry of Environment to intervene, secure the reviews, speak out, and ªnally act on behalf of environmental protection.417

416 For a detailed critique of recent U.S. government performance of its impact assessment obligations under NEPA, see generally Jay E. Austin et al., Envtl. L. Inst., A ‘Hard Look’ at Judicial Decisionmaking Under the National Environmental Policy Act (2004); William Snape III & John M. Carter II, Defenders of Wildlife, Weakening the National Environmental Policy Act: How the Bush Administration Uses the Judi- cial System to Weaken Environmental Protections, available at http://www.defenders.org/publications/nepareport.pdf (last visited Apr. 20, 2006). 417 The Canadian environmental agency’s tentative approach to environmental regulation parallels that of the Council on Environmental Quality (CEQ) in the United States. The National Environmental Policy Act of 1969 (NEPA) set out national goals for environmental protection that were so vague as to, ultimately, be found unenforceable, and an environmental impact review process held, over time, to be purely procedural. See 42 U.S.C. § 4331 (West 2006) (establishing goals and policy); 42 U.S.C. § 4332(c) (requiring environmental impact statement requirement); Robertson v. Methow Valley Citizen Coun- cil, 490 U.S. 332, 350 (1989) (stating that requirements are purely procedural). It also

240 Boston College International & Comparative Law Review [Vol. 29:175

At the same time, these cases revealed dysfunctions in the Cana- dian review system that became so obvious that Parliament could not ignore them. In 1992, it responded with a new Canadian Environ- mental Assessment Act418 which, with amendments in 2003,419 became a stronger vehicle for environmentalists dwarfed by economic interests in a country still so rich in natural resources and undeveloped space that it remains very much in conquest mode. The Canadian environmental impact assessment system, on paper, trumps that of the United States in several ways, most importantly the independent review panels; U.S. environmentalists would kill for them.420 As important as their mechanisms, however, is the reliance of both systems, U.S. and Canadian, on citizen enforcement, and it is here where the U.S. civil society and its tradition of highly-organized and well-funded groups able to challenge government decisions comes center stage.

established the CEQ as an advisory body to the President (indeed, it’s formal name is the President’s Council on Environmental Quality) with few responsibilities other than annual reports to Congress and no hint of authority over other federal agencies. 42 U.S.C. §§ 4342–4344. The early development of NEPA’s impact assessment process was left to court decisions, following which, in the early 1970s, CEQ would send out interpretative memoranda recapping the opinion, usually with an afªrmative spin. Emboldened by a growing body of court decisions and memoranda, it issued a set of NEPA interpretative guidelines, similar to those of the Canadian Environmental Agency, describing a process for compliance with the statute. Council on Environmental Quality, 36 Fed. Reg. 7724 (Apr. 23, l971). Not promulgated under the Administrative Procedure Act and lacking statutory basis, these guidelines were viewed as advisory only, although they were looked to by the courts in individual cases for interpretation of the law. Compare Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 424 (5th Cir. 1973) (ªnding that guidelines are “merely advisory”) with Envtl. Def. Fund, Inc. v. Froehlke, 473 F.2d. 346, 350 (8th Cir. l972) (relying heavily on guidelines). It was not until 1976 and the election of a President with an environmental protection agenda that CEQ was empowered, by Executive Order, to engage in rulemaking and issue NEPA regulations for the impact review process, binding on all federal agencies. Exec. Order No. ll,991, 42 Fed. Reg. 26,967 (May 24, l977). For the ensuing thirty years, these regulations have become a central part of the law of NEPA, although, at the time of this writing, both the regulations and the statute were under critical scrutiny by the White House and Congress. See Activists Fear Upcoming NEPA Bill Could Broaden Piecemeal Rollbacks, 26 Inside EPA 36 (Sept. 9, 2005). In sum, the U.S. environmental agency and review process, facing similar handicaps, evolved in remarkably similar ways. 418Canadian Environmental Assessment Act, 1992 S.C. ch. 37 § 67. 419 Canadian Environmental Assessment Act, 2003 S.C. ch. 9 et seq. 420 Particularly so, if the independent review panels were more frequently employed. According to the Canadian Environmental Assessment Agency, 99 percent of projects subject to environmental assessments are not submitted to independent panels for review and mediation. In practice, then, reviews in all but the most controversial projects are conducted by proponent agencies and permit applicants. For a critical view of the Canadian process in action, see generally Andrew Green, Discretion, Judicial Review and the Canadian Environmental Assessment Act, 27 Queen’s L.J. 785 (2002). 2006] O Canada! 241

(2) In both systems, but more markedly in the United States, the enforcement of environmental assessment requirements against unwilling and non-disclosing agencies depends on judicial review.421 This is most obvious at the state or provincial level, where development pressures are highly localized and environmental critics speak out at least at their social peril and at times more. It has become obvious today at the national level as well, as seen in the United States with an administration openly hostile to environmental policy and actively seeking to limit environmental impact review.422 In such a climate, it comes down to the courts or nobody. Rafferty-Alameda, Oldman, and the Great Whale cases reveal the great reluctance of Canadian courts to wade into this swamp. U.S. environmental litigation is not a pretty sight, and more than one reviewing court has ended up with years of supervision over national grazing policies, surface mining, and the preservation of the Paciªc Salmon. And so when the court in Canadian Wildlife Federation I stated, somewhat wistfully, that laws like environmental assessment presume a measure of governmental good faith, it was clearly not seeking to intervene. But when the Canadian Supreme Court ªnally said, in Canadian Wildlife Federation II, that it had to apply environmental law to, above all persons, Ministers of the Crown, one sensed that they were crossing a Ru- bicon. The crossing is not complete and will in all likelihood remain as contested in Canada as it is here in the States, but most of the army went across and, for the same reasons found in the United States, that is where the Canadian judiciary will likely remain. To do less simply nulliªes the will of the people expressed through law. (3) What the many cases that surround Rafferty-Alameda, Old- man, and the Great Whale also show is the terrible tension of federalism in today’s world. The globe is smaller. Environmental problems are larger, and they are growing. Chemicals from U.S. industries show up in the Arctic, shared species like the caribou and salmon are taking a terrible beating, and no one is immune from deforestation, cli-

421 Canadian environmental plaintiffs face signiªcantly higher obstacles than their counterparts in the United States, among them the absence of speciªc provisions for citizen suits, the prospect of liability for litigation costs in the case of adverse decisions, standing-to-sue challenges and a strong tradition of judicial deference to government agencies. E-mail from Professor Christopher Tollefson, University of Victoria School of Law, B.C., Canada, to author (Aug. 6, 2005, 01:21 CST) (on ªle with author). See generally Deborah Van Nijnatten, Participation and Environmental Policy in Canada and the United States: Trends Over Time, 27 Pol’y Stud. J. 267 (1999); Corriveau, supra note 47. 422 See generally Robert G. Dreher, NEPA Under Siege: The Political Assault on the National Environmental Policy Act, Geo. Envtl. L. & Pol’y. Inst. (2005). 242 Boston College International & Comparative Law Review [Vol. 29:175 mate change, or acid rain. The notion that the sources of these problems are best controlled by individual states and provinces, or even by individual nations, is increasingly quaint and untenable.423 Yet these are the premises under which Canada and the United States have organized themselves, and all nations have organized the world. To expect a state or province, on the eternal hunt to win the prize of economic development over its competitors, to give full shrift to national and international interests, or even to long term sustain- ability, in projects like Rafferty-Alameda, Oldman, and the Great Whale is to expect the impossible. Political futures are local and produced by short term gains. As for the long term, nobody gets their name put on something that didn’t get built. The United States, circa 2005, is on a rampage to unload federal environmental responsibility, indeed all of the federal social responsibility it can, onto states, half of whom are in deªcit and few of whom have the appetite to impose environmental requirements on their own. Canada, never having gone very far at the federal level in the ªrst place, continues to place primary responsibility even for endangered species protection—a matter many would consider of national importance—at the provincial level.424 Call it “federalism” if one wishes, or call it simply the bushhogging of environmental obstacles, it ends up at the same place. The Canadian Supreme Court was forced to deal with these issues in all three stories related in this article. One must conclude that its rulings reveal the serious ambiguity of Canadian governance with regards to federalism. One feels the tension in an opinion declaring that “environmental protection has become one of the major challenges of our time,” while at the same time straining not to overstep constitutional limits for the federal government to do something about it.425 The U.S. Supreme Court, for its part as well, has begun to question the interstate commerce rationale underlying federal envi-

423 See generally James Gustave Speth, Environmental Law: Can It Deal With The Big Issues?, 28 Vt. L. Rev. 779 (2004). 424 Canada’s recently-enacted endangered species law continues to vest primary protection and management responsibilities with the provinces, limiting federal jurisdiction to federal lands, water and migratory species. Candian Species At Risk Act (SARA), 2002 S.C., ch. 29 (Can.). By contrast, sections nine and ten of the United States Endangered Species Act impose federal protections over the entire country, including state and private property. Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884 (1973) (codiªed at 16 U.S.C. § 1531–1543 (1973)); Babbitt v. Sweet Home Chapter of Cmtys for a Great Ore- gon, 515 U.S. 687 (1995) (approving ESA protections on private lands). 425 See Oldman River II, 1 S.C.R. at 16. 2006] O Canada! 243

ronmental law.426 The fact remains, however, that neither Louisiana nor Alaska is going to place a priority on protecting its wetlands when it comes to oil and gas production. Nor will Quebec see the Canadian Shield as much more than a cash cow. How Canadian and the U.S. commitments to federalism meet the challenge of national environmental policy remains an open question. (4) One last observation from Rafferty-Alameda, Oldman, and the Great Whale is the most simple. Environmental review, safeguards, and licenses are largely procedural. They lead to negotiated results. With a demanding environmental agency and public support, these efforts will lead to (in addition to a good deal of corporate image ad- vertising) reduced pollution, mitigation measures, and a genuinely- softened footprint. In most cases, however, these measures will be inadequate to offset the impacts. Not even close. The Piikan people may get money to improve their way of life, and the Cree certainly will, and that is a major plus. But their rivers are doomed. In the cases at hand, the Rafferty-Alameda, Oldman, and La Grande projects were built, the Rupert-Nottoway-Broadback grinds forward and the Great Whale is on hold. Proposals like these never die. Were these same projects proposed today, the provinces would be back in the lists behind them and the federal environmental agencies, be they in Ottawa or Washington, cowering in their tents. It would be up, once again, to the people. Environmental review gives them a shot. Judicial review rein- forces the shot. And on the success of that shot, so much depends.

426 See generally supra notes 42, 43.

INSERTED BLANK PAGE

BUILDING FORTRESS INDIA: SHOULD A FEDERAL LAW BE CREATED TO ADDRESS PRIVACY CONCERNS IN THE UNITED STATES-INDIAN BUSINESS PROCESS OUTSOURCING RELATIONSHIP?

Bryan Bertram*

Abstract: In the past few years, there has been a substantial surge in the use of Indian vendors by U.S. businesses for the performance of business processes. These types of engagements, referred to as business process outsourcing, routinely involve the transfer of sensitive personal data between U.S. and Indian ªrms. Thus, these types of transfers have raised concerns over the security of such data. The United States currently regulates these data transfers by industry sector. This policy contrasts sharply with other jurisdictions such as Canada, Japan, and the European Union where more broadly deªned regulations set principles for the protection of data generally. This Note will examine whether the United States should enact broader based legislation in order to regulate the growing trend of business process outsourcing to India and protect sensitive data that gives rise to personal privacy concerns.

A line of neatly dressed workers ªles into the Golden Millennium, a shimmering glass-and-steel building in central Bangalore. One by one, they swipe ID cards through a reader, then empty their pockets and bags and stuff cell phones, PDAs, and even pens and notebooks into lockers as a dour security guard watches. Staffers ending their shifts, meanwhile, are busy shredding notes of conversations with customers. At the reception desk, visi- tors sign a daunting four-page form promising not to divulge anything they see inside—and even then are only allowed to peer into the workspace through thick windows.1

* Bryan Bertram is an Executive Editor for the Boston College International & Compara- tive Law Review. 1 Pete Engardio, Fortress India?: Call Centers and Credit-Card Processors Are Tightening Secu- rity to Ease U.S. and European Fears of Identity Theft, Bus. Wk., Aug. 30, 2004, at 28, 28.

245 246 Boston College International & Comparative Law Review [Vol. 29:245

Introduction The preceding example illustrates the importance Indian business places on the security of personal data when maintaining business process outsourcing (BPO) relationships.2 This importance seems well- founded given the recent dramatic growth in the BPO sector of India’s economy.3 Many businesses already outsource or are considering outsourcing business functions that handle sensitive data.4 As businesses continue to cut costs in order to improve their bottom line, they continue to outsource certain business processes that can be performed more cheaply in countries such as India.5 In the context of these relationships, privacy of one’s personal information has become an issue because of the highly sensitive nature of the data that often is transmit- ted in overseas BPO relationships.6 As a consequence, the Indian government and Indian businesses have taken many steps towards improving the security of personal data passed in these relationships.7 Despite Indian measures, increasing scrutiny has come to bear on these relationships by the United States.8 Numerous new legislative proposals have been introduced at both the state and federal levels.9 This scrutiny and associated legislation can be frustrating to India, which believes it has made many good faith efforts at improving data security and perceives concerns in the United States to be largely un- justiªed.10 The purpose of this Note is to analyze the U.S.-Indian BPO relationship. This encompasses current U.S. law governing overseas BPO, its effects on the Indian government’s data privacy regulation, as well as the reactions of U.S. and Indian ªrms. This Note argues that the United States and India should both enact laws of general applicability governing this relationship in order to correct current deªciencies as well as provide a clear set of standards with which U.S. and Indian businesses should comply and to which Indian law should conform.

2 See id. 3 See Paul Davies, What’s This India Business? 43–45 (2004). 4 See id. 5 See id. at 21–22. 6 See, e.g., Rahul Sachitanand, Lax Privacy Laws Hit Healthcare BPOs, Econ. Times (Gur- gaon, India), May 7, 2004, available at Factiva Doc. No. ECTIM00020040506e05700015 (explaining the sensitivity of patient ªles outsourced in healthcare BPO and concerns in the United States over security of this type of personal information). 7 See IT Industry Irked at TV Exposure, Hindu (Chennai, India), Aug. 18, 2005, at 3. 8 See Safety Matters: Outsourcing to India, Economist, Sept. 4, 2004, at 70, 70. 9 See id. 10 See id. 2006] Building Fortress India 247

Part I of this Note will consider background and history of the United States-Indian BPO relationship by examining drivers behind the growth of the overseas BPO market and its effects on both nations. Part II of this Note will discuss the strengths and weaknesses of U.S. law in maintaining secure BPO transactions between U.S. and Indian ªrms. It will do so by assessing deªciencies in U.S. law as well as examining Indian efforts to conform to U.S. standards. This Note will conclude by summarizing the deªciencies that currently exist in the United States- Indian BPO relationship and proposing that the federal government adopt a law of general applicability to govern overseas BPO.

I. Background and History Businesses are increasingly seeking to outsource processes that can be accomplished more cost-efªciently in overseas locations.11 This type of outsourcing, known as business process outsourcing, is deªned as a business engagement that transfers responsibility for ongoing management and execution of a business activity, process, or functional area to an external service provider in order to gain efªciencies and improve performance.12 BPO arrangements are exceedingly complex because they entail the transfer and execution of one or more complete business processes or entire business functions to an external service provider.13 BPO now constitutes an enormous growth area for business and is the fastest growing segment of outsourcing arrangements.14 Tradi- tionally, BPO occurred domestically.15 Nevertheless, advances in low- cost data transmission capability and cheap foreign labor pools have

11 See Davies, supra note 3, at 21–22. 12 Kapil Dev Singh, Understanding the Business of Business Process Outsourcing, in Business Process Outsourcing: Trends and Insights 56, 57 (ASSOCHAM) (2003). Background information on the conference where this publication was produced is available at http://www.assocham.org/bpo/bpo16072003.html (last visited Feb. 10, 2006). 13 See id. 14 See William A. Tanenbaum, Information Technology and Business Process Outsourcing, in PLI’s Ninth Annual Institute for Intellectual Property Law, 220, 230 (PLI Pats., Copyrights, Trademarks, and Literary Prop. Course, Handbook Series No. G0-016V, 2003), available at WL 765 PLI/Pat 221. The term “outsourcing” was coined in 1988, but the phenomenon began as early as the 1950s and 1960s. William L. Deckelman, Jr., Outsourcing: A Primer, in PLI’s 19th Annual Institute on Computer Law, 435, 439-40 (PLI Pats., Copy- rights, Trademarks, and Literary Prop. Course, Handbook Series No. G0-004D, 1999), available at WL 547 PLI/Pat 435. 15 See Fed. Deposit Ins. Corp., Offshore Outsourcing of Data Services by Insured Institutions and Associated Consumer Privacy Risks 6 (2004), available at http://www. fdic.gov/regulations/examinations/offshore/offshore_outsourcing_06–04–04.pdf. 248 Boston College International & Comparative Law Review [Vol. 29:245 prompted a signiªcant movement of BPO overseas.16 The reasoning behind this shift is that foreign labor is cheaper than comparable domestic labor and quality levels typically do not decline in such a relationship.17 Another desirable attribute of overseas BPO is the ability to realize around-the-clock operations—when the workday ends in the United States, it is just beginning in India.18 Finally, businesses often turn to overseas BPO in order to focus efforts on “core” functions where the ªrm has a competitive advantage while allowing others to accomplish non-core functions.19 The BPO movement is also self fuel- ing; as some businesses choose to embrace overseas BPO in order to realize cost-efªciencies, other ªrms are forced to do the same in order to remain competitive.20 Two of the major areas of growth in overseas BPO have been the healthcare and ªnancial services industries.21 In healthcare, the use of offshore contractors has increased in recent years due to advances in information technology.22 The movement towards electronic medical records and processing systems has allowed healthcare providers to shift certain functions off-site if they can be performed more cost-efªciently elsewhere.23 This technology now allows services such as technical support, transcription, collation, billing, insurance claims’ processing, and x-ray analysis to be sent overseas.24 There are ªfteen to twenty large and midsize vendors in India that service the healthcare market in both North America and Europe, employing about 5000 professionals.25 Financial services is another area in which overseas BPO relationships have often been created in order to realize business

16 Id. 17 Davies, supra note 3, at 29–30. In fact, the level of quality in BPO relationships with India may actually increase in comparison to domestic providers because work associated with BPO is often held in more high esteem in India than in the United States. See id. at 30. 18 Fed. Deposit Ins. Corp., supra note 15, at 8. 19 Davies, supra note 3, at 22–23. Focusing on a ªrm’s core implies efªciency because it allows a ªrm to invest in its own competitive advantage while allowing third parties to accomplish other activities that the third party views as its own core. Id. 20 Fed. Deposit Ins. Corp., supra note 15, at 8. 21 See Tanenbaum, supra note 14, at 240. 22 Kenneth N. Rashbaum, Offshore Outsourcing of Health Data Services, 16 Health Law. 24, 24 (2004). 23 See id.; Davies, supra note 3, at 21−22. 24 Rashbaum, supra note 22, at 24. For example, recent statistics show radiological outsourcing increasing by 7% per year with 12% of hospitals currently engaging in such a practice. Nathaniel H. Hwang, Comment, The Concerns of Electronically Outsourcing Radiologi- cal Services Overseas, 25 J. Legal Med. 469, 471 (2004). 25 Sachitanand, supra note 6. 2006] Building Fortress India 249

efªciencies.26 For example, Deloitte Consulting, L.L.P. estimates that ªnancial institutions utilizing overseas BPO relationships achieve an average cost savings of 39%.27 It is estimated that 25,000 tax returns were completed by accountants in India in 2002 and that almost four times that amount were processed in 2003.28 India has been a major recipient of overseas BPO because it pos- sesses an advantage that most other countries do not: a relatively well educated workforce.29 Due to the increasing sophistication of the In- dian workforce, India is no longer just a source for cheap code and call centers. BPO services offer opportunities for Western companies to access the skills of Indian accountants, scientists, lawyers, and other professionals.30 Helping matters further is a favorable tax regime instituted by the Indian government that catalyzes BPO sector growth.31 This conºuence of advantages has helped the Indian tech sector, of which BPO is a part, to grow substantially in the past few years with revenues most recently surpassing the $3 billion mark.32 McKinsey & Company recently predicted that revenues to Indian service companies would grow to $142 billion in 2008.33 Further, U.S. businesses are heavily invested in India as a BPO location; General Electric (GE), for example, receives claims processing, credit evaluation, accounting, and other functions for eighty global GE branches from 12,000 em- ployees in India.34 The Indian BPO sector is one of the highest employment generators for young Indian graduates and has an annual growth rate of more than 100%.35

26 See Tanenbaum, supra note 14, at 240. 27 Fed. Deposit Ins. Corp., supra note 15, at 7. This report goes on to indicate that one in four institutions surveyed reported cost savings in excess of 50%. Id. 28 Richard G. Brody et al., Outsourcing Income Tax Returns to India: Legal, Ethical, and Pro- fessional Issues, 74 CPA J. 12, 12 (Dec. 2004), available at 2004 WLNR 14649302. 29 See Davies, supra note 3, at 30. 30 See Andrew Baxter et al., ‘Epidemic’ Warning on Mobile Viruses, Fin. Times (London), Feb. 23, 2005, at 2. 31 Davies, supra note 3, at 46. In all reality, favorable tax policies are not directly aimed at the BPO sector. See id. Nevertheless, tax beneªts aimed at the information technology (IT) sector of the Indian economy have been extended to encompass overseas BPO based on a theory referred to as IT enabled services (ITES). Id. Under the ITES tax scheme, if overseas BPO services are enabled by IT (virtually all are), they qualify as IT services and, therefore, also qualify for preferential tax treatment. Id. 32 See Tackling an Unseen Enemy, Hindu (Chennai, India), Sept. 27, 2004, at 14. 33 Davies, supra note 3, at 16. 34 E.g., id. 35 IT Sector Highest Employer of Graduates, Statesman (New Dehli, India), Dec. 20, 2005, available at LexisNexis Academic Doc. No. A20055121936-F7A4-GNW. 250 Boston College International & Comparative Law Review [Vol. 29:245

Overseas BPO transactions, of the kind between the United States and India, invariably implicate concerns over personal privacy.36 Ac- cording to a survey whose sample included 115 companies in India and the United States, 82% of the companies in the United States were concerned about information security practices in India.37 Such concerns seem well justiªed because the two industries experiencing the most growth in outsourcing are ªnancial services and health care, which are also two of the largest compilers of personal data.38 Privacy should be distinguished from conªdentiality and trade se- crets.39 Privacy refers to the use and disclosure of personal information; it only applies to information speciªc to individuals.40 Different jurisdictions have often deªned privacy protection in different ways, but most deªnitions coalesce around a set of certain principles.41 The fundamental principles underlying privacy protection are summarized in the Fair Information Practices deªned by the Federal Trade Commis- sion: (1) notice; (2) choice; (3) access; (4) security; and (5) enforcement.42 Notice includes both notice that personal information is being collected as well as notice regarding any disclosure to a third party.43 The “choice” principle refers to the notion that the consumer ought to retain the ability to opt out from use or disclosure of personal information by a third party.44 Security involves protecting personal information from unauthorized access or misuse.45 Access involves allowing an individual whose information has been collected the ability to contact

36 See Francoise Gilbert, Privacy Strategies in Outsourcing, in The Outsourcing Revolu- tion 2003: Protecting Critical Business Functions 523, 527 (PLI Pats., Copyrights, Trademarks, and Literary Prop. Course, Handbook Series No. G0-01E8, 2003), available at WL 767 PLI/Pat 523. Privacy can often be a loaded term, difªcult to deªne and with many nuances. See Robert W. Hahn & Anne Layne-Farrar, The Beneªts and Costs of Online Privacy Legislation, 54 Admin. L. Rev. 85, 88–94 (2002). 37 Sudha Nagaraj, BPO Fine But What About Data Privacy?, Econ. Times (Gurgaon, In- dia), Nov. 6, 2004, available at Factiva Doc. No. ECTIM00020041105e0b60004o. 38 See R. Bradley McMahon, Note, After Billions Spent to Comply with HIPAA and GLBA Privacy Provisions, Why Is Identity Theft the Most Prevalent Crime in America?, 49 Vill. L. Rev. 625, 628 (2004). 39 See id. 40 Gilbert, supra note 36, at 528–29. 41 See id. at 529. 42 Hahn & Layne-Farrar, supra note 36, at 91–94. European Safe Harbor guidelines for United States businesses slightly expand upon the FTC deªnition listing onward transfer and data integrity as additional principles underlying data privacy protection. Compare id. with Davies, supra note 3, at 39. 43 See Gilbert, supra note 36, at 530. 44 See Hahn & Layne-Farrar, supra note 36, at 91. 45 Gilbert, supra note 36, at 530. 2006] Building Fortress India 251

the collecting entity with inquiries or complaints.46 Security is rather self-evident from the name; reasonable steps should be taken to protect the security of personal information collected from individuals.47 Fi- nally, enforcement entails adequate remedies to cure violations when they do occur.48 In the most extreme example of a privacy breakdown, a Pakistani woman working remotely for a medical center in California threatened to post conªdential patient records on the internet if she was not given a pay rise.49 Pakistan is certainly not India, but in the perceptions of many, it was close enough.50 For their part, Indian ªrms argue that their data security policies are world-class; ICICI OneSource, the outsourcing arm of India’s largest private sector bank claims its policies are superior to any in Europe and the United States.51 The lack of high proªle incidents in BPO relationships supports this claim.52 At ICICI OneSource, for example, there have only been two incidents of credit- card abuse, involving the theft of, respectively, $13 and $22.53 Neverthe- less, when contrasted with a recent FDIC study that lists India amongst countries with no data protection law, one must wonder whether the lack of incidents stems from India’s measures or simply derives from a certain measure of luck.54

II. Discussion

A. U.S. Regulatory Framework Governing Overseas BPO The United States has so far never adopted legal measures generally applicable to overseas BPO but rather relies upon narrow measures aimed at speciªc issues and industry sectors.55 The approach is very different from other developed nations and organiza-

46 Id. 47 See Hahn & Layne-Farrar, supra note 36, at 93. 48 See id. at 93–94. 49 See Safety Matters: Outsourcing to India, supra note 8, at 70. 50 Id. 51 Id. 52 See id. 53 Id. Heartland Information Services, Inc., a Toledo, Ohio medical outsourcing company, reported in 2004 an extortion attempt by an Indian worker using personal data. Chris Seper, Outsourcing Brings Identity-Theft Risk, Plain Dealer (Cleveland, Ohio), May 24, 2004, at E4. This worker was subsequently arrested within twenty-four hours of the threat. Id. 54 See Fed. Deposit Ins. Corp., supra note 15, at 20. 55 See Hahn & Layne-Farrar, supra note 36, at 116. 252 Boston College International & Comparative Law Review [Vol. 29:245 tions such as Canada, Japan, and the European Union, which all have more generalized data privacy laws that incorporate more stringent requirements.56 The typical justiªcation for the approach taken in the United States is that enacting more generalized legislation could be prohibitively costly and lead to unintended consequences.57 Neverthe- less, it is interesting to note at the outset that the lack of any privacy legislation of general applicability has prompted the European Union to deem the United States as lacking adequate privacy protection.58

1. Identity Theft At a very general level, the Identity Theft and Assumption Deter- rence Act of 1998 makes identity theft a federal crime and provides an individual right of action for restitution as well as criminal sanctions.59 The Act was passed in response to the patchwork of laws that previously addressed identity theft, and it carries strong penalties for violators.60 The Act also cured deªciencies in enforcement of identity theft; the old patchwork of laws charged several different agencies with enforcement while the Act vests enforcement responsibility with the FTC.61

2. Health Information Personal health information is protected by the Health Insurance Portability and Accountability Act of 1996, commonly referred to as HIPAA.62 HIPAA was not originally written to protect privacy, rather, it was meant to facilitate health insurance transferability and the transfer of private information between entities.63 HIPAA’s privacy regulations

56 See Kenneth A. Adler, Recent Trends in Outsourcing: Understanding and Managing the Risks, in 24th Annual Institute on Computer Law, 389, 406 (PLI Pats., Copyrights, Trademarks, and Literary Prop. Course, Handbook Series No. G0-01K6, 2004), available at WL 781 PLI/Pat 389. 57 See Hahn & Layne-Farrar, supra note 36, at 158–59. 58 Gilbert, supra note 36, at 559. This label prompted a lengthy negotiation of safe harbor provisions for U.S. businesses in order to avoid costly impediments to the transfer of data between the United States and Europe. Id. A U.S. company that adheres to the safe harbor principles and completes the Department of Commerce’s self-certiªcation program will receive a presumption from all E.U. member states that its data privacy protections are adequate. Id. 59 Pub. L. No. 105-318, 112 Stat. 3007 (1998) (codiªed at 18 U.S.C. § 1028 (2006)); see Hahn & Layne-Farrar, supra note 36, at 121. 60 McMahon, supra note 38, at 629–31. 61 Id. 62 Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codiªed as amended in scattered sections of 29 U.S.C. and 42 U.S.C. (2006)); see McMahon, supra note 38, at 645. 63 McMahon, supra note 38, at 644. 2006] Building Fortress India 253

were enacted by the Department of Health and Human Services subsequent to the legislation itself.64 HIPAA regulates the outsourcing of data through the Privacy Rule which was published in December, 2000.65 The Privacy Rule regulates access through an opt-in choice mechanism to provide privacy for patient information.66 This opt-in mechanism only allows disclosure of personal information if the patient expressly authorizes such disclosure.67 Despite restrictions on access, this rule has several enforcement problems because it has difªculty reaching offshore BPO providers in countries such as India.68 HIPAA does not directly address the possibility of privacy breakdowns by contractors.69 The Privacy Rule does recognize that medical providers will inevitably outsource some of their functions and designates the contractors for such work as Busi- ness Associates (BAs).70 BAs are subject to the same regulations as the initial provider because the Privacy Rule requires BAs to enter into contractual arrangements that conform with the provisions of the Pri- vacy Rule.71 Problems arise because most medical providers initially outsource to domestic ªrms that, in turn, will outsource to offshore ªrms such as those in India.72 Even though those Indian BAs are subject to the same provisions of the Privacy Rule as everyone else, those BAs are so attenuated from the original provider that promises may be hollow at best.73 Exacerbating this difªculty is a lack of offshore jurisdiction granted to the Department of Health and Human Ser- vices (HHS) which is charged with enforcing the Privacy Rule.74 More- over, even though BAs must contract with the provider, the provider has no obligation to monitor the conduct of any of its BAs.75

64 See id. at 645. The Privacy Rule is codiªed at 45 C.F.R. § 160.103 (2006). 65 See Gilbert, supra note 36, at 539. 66 McMahon, supra note 38, at 648. 67 Id. 68 See Rashbaum, supra note 22, at 25. 69 See id. 70 Id. 71 See id. 72 See id. 73 See Rashbaum, supra note 22, at 25. 74 See id. 75 Id. Even if a medical provider does monitor the activities of its business associates, the great distances involved can often serve to mask privacy problems. Jaikumar Vijayan, Security Expectations, Response Rise in India: Increasingly Tough Demands from U.S. Clients Spark Change, Computerworld, Aug. 30, 2004, at 6. For example, a growing BPO ªrm that was in the process of relocating to a larger facility decided to move some of its servers to an internet café during a period of delay over the new facility’s opening. Id. 254 Boston College International & Comparative Law Review [Vol. 29:245

Finally, HHS is the only entity that may enforce the Privacy Rule.76 The Rule provides no private right of action for health care consumers.77 This deªciency has not gone unnoticed and Senator Hillary Rodham Clinton of New York has introduced a bill which would require create a private right of action for any misuse of this information by an offshore concern.78 Some help is also provided by more stringent state laws that are not preempted by HIPAA, but not every state has such laws.79

3. Financial Information Federal regulation of ªnancial services overseas BPO is accomplished through a web of federal statutes.80 For example, the Consumer Credit Reporting Reform Act of 1996 places restrictions on credit card agencies in using personal data, one notable restriction being disclosure only in instances of business need.81 At the center of federal ªnancial regulation is the Financial Services Modernization Act of 1999, commonly referred to as the Gramm-Leach-Bliley Act (GLBA), which provides privacy protection for personal data.82 One of the strengths of this Act is its scope, covering ªnancial advice, credit coun- seling, credit cards, data processing, investments, lending check cash- ing, wire transfers, tax preparation, debt collection, or providing credit, insurance, lay-a-way, ªnancing, brokerage, ªnancial aid, lease, or account services.83 The GLBA requires ªnancial institutions to make full disclosure of their privacy policies to consumers.84 The GLBA further requires that entities subject to the Act implement substantial security measures and demands that the agencies that implement the GLBA

76 See Rashbaum, supra note 22, at 25–26 77 See id. 78 Safeguarding Americans From Exporting Identiªcation Data Act (SAFE-ID Act), S. 810, 109th Cong. (2005); Rashbaum, supra note 22, at 27. 79 See Rashbaum, supra note 22, at 26. 80 See id. at 28 (discussing ªnancial data). 81 Pub. L. No. 104-208, §§ 2403, 2413, 110 Stat. 3009, 3009-430, 3009-447 (1996) (codiªed at 15 U.S.C. §§ 1681b(a), 1681s-2 (2006)); Hahn & Layne-Farrar, supra note 36, at 122. 82 Pub. L. No. 106-102, 113 Stat. 1338 (1999) (codiªed at 15 U.S.C. §§ 6801–6809 (2006)); see Hahn & Layne-Farrar, supra note 36, at 123. 83 See Gilbert, supra note 36, at 535. The GLBA derives its sweeping scope from its applicability to the term “ªnancial institutions” which was not deªned in the Act but has subsequently been deªned broadly by the FTC. McMahon, supra note 38, at 634–35. 84 James X. Dempsey & Lara M. Flint, Commercial Data and National Security, 72 Geo. Wash. L. Rev. 1459, 1479 (2004). 2006] Building Fortress India 255

publish extensive security standards.85 The GLBA requires that any outsourcing concerns, even if offshore, must be under contractual agreement to comply with all applicable standards.86 The Federal Banking Agencies have extended the responsibilities of ªnancial institutions to also monitor the activities of any third party to which it transfers sensitive data.87 Further, the FTC has indicated its willingness to prosecute any abuses of personal ªnancial data under the GLBA.88 Unfortunately, the GLBA has many deªciencies.89 Its opt-out mechanism for limiting access to sensitive data is a point of controversy for GLBA’s critics.90 Some have argued that few consumers actually exercise this option because consumers would have to struggle through ªne print to learn how to protect their privacy.91 More narrowly, consumers do not have the normal opportunity to opt out of a transfer of their information overseas when the purpose of the transfer is to “service or process a ªnancial product that the customer requested or authorized . . . or maintain or service the customer’s account.”92 This is signiªcant when it is considered in relation to a recent FDIC report in- dicating that 15% of the ªnancial services cost current cost base ($356 billion) is expected to move offshore in the next ªve years.93

4. State Regulation Despite the presence of these federal statutes regulating aspects of overseas BPO, there remain a myriad of state statutes and common law also affecting BPO transactions.94 Many states ªrst addressed these

85 Gilbert, supra note 36, at 536. 86 See id. 87 Fed. Deposit Ins. Corp., supra note 15, at 14. 88 See Rashbaum, supra note 22, at 28. In a letter to Congressman Edward Markey, FTC Chairman Timothy Muris wrote, “[s]imply because a company chooses to outsource some of its data processing to a domestic or offshore provider does not allow that company to escape liability for any failure to safeguard the information adequately.” Id. Despite the reassuring tone of its rhetoric, the FTC has not yet brought any actions against an overseas provider for any breach of conªdential information. Id. 89 See id. The GLBA has many critics who argue that its protections have not provided any real privacy enhancements. Hahn & Layne-Farrar, supra note 36, at 130. For example, according to former Federal Trade Commission chairman Timothy J. Muris, “Acres of trees died to produce a blizzard of barely comprehensible privacy notices.” Id. 90 See McMahon, supra note 38, at 635–36. 91 See id. at 636. 92 See Rashbaum, supra note 22, at 28 (citing § 502(c) of the Gramm-Leach-Bliley Act, 15 U.S.C. § 802(e) (2006)). 93 See Fed. Deposit Ins. Corp., supra note 15, at 2. The numbers in the FDIC study were compiled by Deloitte Consulting, LLP. Id. 94 Gilbert, supra note 36, at 534. 256 Boston College International & Comparative Law Review [Vol. 29:245 types of privacy issues under a theory of tort, and many still rely on the common law that developed from such an approach.95 Beyond the common law, state legislatures have passed numerous statutes addressing very narrow privacy concerns.96 Some states have even ex- perimented with broader measures to guard personal privacy.97 For example, California recently enacted legislation to compel notiªcation of individuals when their information has been improperly appropriated by a third party, a requirement that cuts across industry lines.98 In addition to a complex regulatory framework, it is increasingly obvious that many federal and state efforts to patch privacy holes are not so much aimed at securing privacy as they are at preventing the outsourcing of domestic jobs.99 An example of such veiled legislation lies in a recent bill proposed by Senator George Voinovich of Ohio that would restrict the outsourcing of work conducted by any companies with government contracts, a measure that is in no way tied to privacy concerns.100 An amendment to this bill proposed by Senator Christopher Dodd would take the provisions one step further to include state contracts funded with federal money.101 This type of legislation is not limited the federal level; for example, Virginia currently has four anti-BPO bills pending, and the Secretary of Technology for Virginia acknowledges that job preservation is a key motivator.102

3. Self-Regulation Given the lack of a clear regulatory framework or any privacy law of general applicability, the federal government has also often encouraged self-regulation.103 Self-regulation can involve such measures as companies passing their own data privacy policies.104 Several or-

95 See id. 96 Id. 97 See, e.g., Timothy H. Skinner, California’s Database Breach Notiªcation Security Act: The First State Breach Notiªcation Law is Not Yet a Suitable Template for National Identity Theft Legisla- tion, 10 Rich. J.L. & Tech. 1, 21–23 (2003). 98 See generally id. 99 See Safety Matters: Outsourcing to India, supra note 8, at 70. 100 See Anti-BPO Steps: What to Worry About, Econ. Times (Gurgaon, India), June 18, 2004, available at Factiva Doc. No. ECTIM00020040618e06i000bx. 101 See id. 102 Id. 103 See Gilbert, supra note 36, at 561. 104 Id. An example of such a company policy is that of Amazon which reads:

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ganizations now provide seals of approval for these types of privacy policies if they meet certain minimum requirements.105 Further, In- dian businesses have enormous incentive to avoid privacy scandals so as to avoid the bad publicity associated with a privacy breakdown.106 The Bush Administration favors self-regulation to secure privacy.107

B. The Indian Reaction to U.S. Data Privacy Law Currently, the only law that speciªcally governs Indian businesses’ protection of personal data derives from foreign jurisdictions such as U.S. or European Union data privacy laws.108 Nevertheless, Indian lawmakers have enacted Indian laws that indirectly regulate Internet commerce. Indian businesses have typically been very concerned about privacy concerns and overseas BPO transactions.109 This should not be surprising given the large contributions of the BPO sector to India’s economy.110 In order to quell both U.S. political and business concern, In- dia has enacted several measures to prevent any data privacy abuse.111

1. Information Technology Act of 2000 Most prominent was India’s adoption of the Information Tech- nology Act of 2000.112 This Act was based on the Model Law on Elec- tronic Commerce adopted by the United Nations (U.N.) in 1997.113

We employ other companies and individuals to perform functions on our behalf . . . . They have access to personal information needed to perform their functions, but may not use it for other purposes. . . . Other than as set out above, you will receive notice when information about you might go to third parties, and you will have an opportunity to choose not to share the information. Id. Company policies often have real enforcement teeth because failure to comply with one’s own privacy policy may open a company up to prosecution based upon misrepresentation or unfair and deceptive practices. Id. at 563. 105 Id. at 562. 106 See Stella M. Hopkins, Outsourcers Are Anxious to Safeguard Your Privacy, Charlotte Observer, Feb. 12, 2005, at 1D. 107 Skinner, supra note 97, at 60. 108 See id. 109 See Engardio, supra note 1, at 28. 110 See Davies, supra note 3, at 16. 111 See Pavan Duggal, Legal Issues Confronting the Indian Outsourcing Industry, in Business Process Outsourcing: Trends and Insights, supra note 12, at 62, 62. 112 See id. at 62. 113 Theodore P. Augustinos et al., International Banking and Finance, 35 Int’l Law. 287, 319 (2001). 258 Boston College International & Comparative Law Review [Vol. 29:245

At a broad level, this legislation was an important step forward because it placed India amongst only a few countries that currently regulate Internet transactions.114 The opening provisions of the Act read: An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage . . . .115 Although the Act is not generally applicable to data privacy speciªcally, it does deªne a certain universe of “electronic” activity for regulation, and the typical BPO relationship is a subset of this universe.116 Of speciªc interest to BPO transactions with the United States are Sections 4, 5, 7, and 79 of the Act.117 The aforementioned sections are applicable to overseas BPO because they deªne data, mandate standards for the authentication and retention of that data, and provide penalties for violations of these provisions.118 Nevertheless, even though the Act deªnes data, it is completely silent on the issues of data protection.119 One of the most important aspects of this Act is the creation of a special appellate court for violations of the Act’s provisions.120 Indian courts are notorious for being exceedingly slow in their resolution of disputes.121 As one scholar has noted, “[The Indian legal system] has all the ºexibility and user-friendliness of a land mine, threatening to blow up should you or anyone close to it look like moving.”122 Thus, the creation of an independent appellate branch speciªcally tasked with overseeing computerized transactions signals a dedication on the part of the Indian government to ensuring that these transactions are dealt

114 See id. 115 Information Technology Act 2000, No. 21 of 2000 (India), available at http://www. mit.gov.in/itbill2000.pdf. 116 See Duggal, supra note 111, at 62. 117 See id. at 62–67. 118 See id. 119 Id. at 67. 120 See Stephanie Overby, India to Adopt Data Privacy Rules, CIO Mag., Sept. 1, 2003, at 28. 121 See Dilip Mookherjee, Legal Institutions and Economic Performance, in The Crisis in Government Accountability: Essays on Governance Reforms and India’s Economic Performance 123 (2004). For example, simple matters such as dissolution of a partnership, where both partners have previously agreed to terms, have been known to languish in the Indian court system for as long as ten years. Davies, supra note 3, at 159. 122 Davies, supra note 3, at 159. 2006] Building Fortress India 259

with expeditiously.123 It is important to note, however, that even creation of a special judiciary unit may not completely relieve the problem of court delays.124 Delays in Indian courts are a function of two problems: “an insufªciently slow growth in the number of sanctioned positions, and a growth in the number of unªlled vacancies.”125 While creating a special judiciary unit might cure the former problem, it does nothing to address the latter because it provides no guarantee that the newly created judicial positions will be properly funded and staffed.126

2. Proposed New Privacy Legislation Despite the progress made with the Information Technology Act of 2000, India still lacks speciªc law regarding the protection of personal data in overseas BPO transactions.127 India’s government is currently working on new legislation to quell growing privacy concerns.128 The government plans to study laws both in the European Union and the United States to ascertain how to best structure India’s own laws.129 Any proposal ultimately adopted by the Indian parliament will likely reºect the European Union’s requirements on data privacy which served as India’s original impetus to review its own laws.130 Neverthe- less, U.S. business concerns will likely play a role too by inducing India to refrain from setting standards that are too stringent and costly.131

3. Self-Regulation Some of India’s efforts at complying with the demands of U.S. privacy law have originated in the private sector rather than the legal sector.132 The National Association of Service & Software Companies (NASSCOM) is India’s national information technology trade group and has been the driving force behind many private sector efforts to

123 See Overby, supra note 120, at 28. 124 See Mookherjee, supra note 121, at 124–29 (describing the causes of mounting court delays in India). 125 Id. at 125. 126 See id. 127 See Duggal, supra note 111, at 67. 128 IT Industry Irked at TV Expose, supra note 7, at 3. 129 Sachitanand, supra note 6. 130 See Overby, supra note 120, at 28. 131 See Bureau of Indus. & Sec., U.S. Dep’t of Commerce, HTCG Dialogue on De- fense Technology, Data Privacy, and Export Licensing (2004), http://www.bis.doc.gov/ InternationalPrograms/HTCG_Dialogue.htm. 132 See Safety Matters: Outsourcing to India, supra note 8, at 70. 260 Boston College International & Comparative Law Review [Vol. 29:245 improve data security.133 According to Sunil Mehta, Vice President of NASSCOM, “We want to make India kind of a Fort Knox of information of the world.”134 NASSCOM has been one of the contributors to efforts to tighten the Information Technology Act 2000.135 NASSCOM also plans to have the security practices of all its members audited by international accounting ªrms.136 Additionally, NASSCOM directly contributes to the development of legal enforcement mechanisms.137 For example, in Mumbai (Bombay), a center of Indian commerce, NASSCOM has taught a dozen police ofªcers the basics in ªghting cyber-crime.138 Because Indian ªrms have gone to such lengths to protect data security, a new market, which is ancillary to the BPO market, has emerged.139 Long Island-based Verint Systems Inc. provides systems used for video and voice surveillance at a cost of $1000 per worker.140 Indian ªrms also pay up to $300 per worker for background checks that can take several weeks to compile.141 Cyrca Data Security Solu- tions, a Toronto-based IT security, privacy and, compliance company, has also entered the Indian market to provide consultancy services regarding outsourcing.142 Given the extensive measures that Indian business and government have undertaken in order to meet privacy concerns, it seems neither unnatural nor unfair that they expect a positive perception of In- dian data security.143 Yet, most of this demand for respect has gone unrequited in the United States as political ªgures continue to use privacy as a smokescreen for efforts to curb outsourcing and protect American jobs.144 Thus, one of the biggest problems in the U.S.-Indian relationship does not implicate legal or private sector issues but, rather,

133 See id. 134 Hopkins, supra note 106, at 1D. 135 Outsourcing to India: Safety Matters, supra note 8, at 70. 136 See id. 137 See Edward Luce, India Acts to Protect Call Centre Security: Outsourcing Companies Know Even a Single Leak of Sensitive Information Could Destroy Them, Fin. Times (London), Oct. 14, 2004, at 11; Hopkins, supra note 106, at 1D. Similar forces are planned for eight other Indian cities. Id. 138 Id. 139 See, e.g., Cyrca Data to Enter Indian Market, Econ. Times (Gurgaon, India), Dec. 16 2004, available at Factiva Doc. No. ECTIM00020041215e0cg00013. 140 Engardio, supra note 1, at 28. Verint has already signed up over 100 call centers in India for use of its services. Id. 141 Id. 142 Cyrca Data to Enter Indian Market, supra note 139. 143 See Safety Matters: Outsourcing to India, supra note 8, at 70. 144 See id.; Anti-BPO Steps: What to Worry About, supra note 100. 2006] Building Fortress India 261

perception by India that efforts to meet U.S. demands will be dealt with fairly.145 U.S. policymakers who advocate restrictions in overseas BPO to India often cite both privacy and employment concerns as their motiva- tions.146 This only serves to hurt efforts at improved data privacy because India views these concerns more as an excuse to stem job loss than any real concern over privacy.147 Further, this perception spans both continents: U.S.-Indian citizens share India’s concerns over anti- BPO trends.148 Anti-BPO efforts by U.S. policy makers have strained the U.S.-Indian relationship by creating an Indian perception that privacy concerns have become the hot new excuses for an age-old movement to erect barriers to trade and stem the outsourcing of U.S. jobs.149

III. Analysis The preceding discussion illustrates the narrow, industry approach of U.S. law to overseas BPO.150 At the most general level, no federal law deªnes a universal standard for personal privacy.151 Although generalized privacy restrictions exist for information policy within the federal government, Congress has basically defaulted to a market-oriented model that is supplemented by more narrowly deªned pieces of legislation.152 Use of self-regulation by business entities then supplements these protections.153 This contrasts sharply with the more systematic and wide reaching forms of legislation employed by member nations of the European Union, as well as Canada and Japan.154

1. Beneªts and Detriments of Sectoral Regulation The traditional justiªcation for this sectoral approach to privacy legislation is utilitarian in nature, arguing that broader protections are

145 See Safety Matters: Outsourcing to India, supra note 8, at 70. 146 See Engardio, supra note 1, at 28 (discussing Indian resentment over anti-BPO legislation in the United States, even though India has made large investments in data security and has had few breakdowns). 147 See id. 148 See generally Ishani Duttagupta, Outsourcing Row Tilts Indians Towards Bush, Econ. Times (Gurgaon, India), Oct. 29, 2004, available at Factiva Doc. No. ECTIM00020041027 e0as00007. 149 See Engardio, supra note 1, at 28. 150 See Hahn & Layne-Farrar, supra note 36, at 116. 151 See id. 152 See id.; James P. Nehf, Incomparability and the Passive Virtues of Ad Hoc Privacy Policy, 76 U. Colo. L. Rev. 1, 1–2 (2005). 153 See Nehf, supra note 152, at 1–2. 154 See Adler, supra note 56, at 406. 262 Boston College International & Comparative Law Review [Vol. 29:245 not cost-beneªt justiªed.155 This type of utilitarian balancing usually favors less restrictive regulation that is narrower in scope.156 Given this methodology, the current patchwork of sectoral laws is not all that surprising.157 The utilitarian approach to privacy balancing is open to criticism.158 Cost-beneªt analysis often favors the party that can better quantify the values for its position which, in the context of the privacy debate, is business seeking less regulation and less cost.159 Further, some privacy advocates believe that the debate should not be utilitarian at all’ rather, they believe that people have certain rights to privacy that should be protected without reference to cost.160 The narrowness of U.S. federal privacy policy is particularly evident when contrasted with the policies of the European Union.161 Countries enjoying membership in the European Union have enacted laws regulating personal data.162 While each law may contain somewhat different content, the European Union has harmonized these laws into a general framework by requiring individual countries to follow guidelines set forth in the European Union Directive 95/46/EC on the Pro- tection of Individuals with Regard to the Processing of Personal Data.163 These guidelines include requirements similar to the previously discussed principles of notice, security, access, and enforcement.164 The European Union directive creates a guideline set of protections that every country must meet.165 Countries are, however, free to institute more stringent requirements as they see ªt.166 Most notably, the European Union directive creates an omnibus right of action, whereby data subjects can sue a data collector for misuse of data and receive monetary damages with ªnes as high as $500,000 in some countries.167 “Individuals must be able to enforce their rights rapidly . . . and without prohibitive cost.”168 Finally, there

155 See Nehf, supra note 152, at 2–3. 156 See id. 157 See id. at 2. 158 See id. at 29–30. 159 See id. at 29. 160 See Nehf, supra note 152, at 3. 161 See Davies, supra note 3, at 38; Adler, supra note 56, at 406. 162 Gilbert, supra note 36, at 533. 163 Id. 164 See id.; supra notes 42–48 and accompanying text. 165 See Gilbert, supra note 36, at 557. 166 See id. 167 See id. at 533–34. 168 Id. at 558. 2006] Building Fortress India 263

must be an institutional mechanism allowing for investigation of complaints.169 Mandating such a set of legal enforcement mechanisms en- sures that EU law never encounters a deªciency such as that associated with HIPAA: lack of a private right of action over a data privacy violation.170 Nevertheless, generalized legislation such as the European Union directive is not without its criticisms.171 First, generalized statutory language always runs the risk of becoming out of date in quickly shifting technological environments.172 Further, legislation proper for one sector of business may be over- or under-restrictive for another.173 Generalized laws lose the ability of sectoral legislation in their ability to target speciªc protections to speciªc industries.174 Finally, generalized legislation creates certain costs to doing business that could potentially place a country at a disadvantage in the marketplace.175

2. Need for Default Rules Despite these shortcomings, it would still appear advisable that the United States adopt some of the philosophies of its European neighbors and implement some form of general applicability law to overseas BPO in order to govern the U.S.-Indian BPO relationship.176 Establish- ing a set of principles governing overseas BPO would be beneªcial because it would set a minimum set of standards for data privacy to which all BPO relationships would have to conform.177 Model principles of this sort are readily available in the form of the European model as well as the previously discussed Fair Information Practices promulgated by

169 Id. 170 Compare Gilbert, supra note 36, at 557 (explaining the European system whereby the E.U. Directive creates an omnibus enforcement mechanism), with Rashbaum, supra note 22, at 25 (explaining enforcement deªciencies in HIPAA, including lack of a private right of action and difªculties in reaching offshore contractors). 171 See Hahn & Layne-Farrar, supra note 36, at 118–20. 172 See id. 173 See id. 174 See, e.g., id. (explaining how “the move in outsourcing . . . becomes exceedingly difªcult under the Directive’s restrictions on transborder transmissions” because it is over- restrictive in relation to current business needs). 175 See id. 176 See Gilbert, supra note 36, at 559 (explaining that other countries have adopted privacy laws similar to the directive adopted by the European Union). 177 See id. (explaining the minimum principles of data privacy set forth in the E.U. Di- rective). 264 Boston College International & Comparative Law Review [Vol. 29:245 the Federal Trade Commission.178 Finally, it would help to eliminate differing protections and deªciencies across sectors.179 For example, HIPAA has an enforcement deªciency because it does not provide a private right of action, whereas GLBA, while it does not have a similar enforcement deªciency, has a choice deªciency because it does not include an opt-out provision for overseas BPO.180 One of the considerations in drafting such generalized legislation should be a utilitarian cost-beneªt balancing to create default rules protective enough to guard data privacy.181 This calculus should not, however, be so restrictive that it kills the proverbial goose that lays the golden eggs by exacting such high costs that overseas BPO loses most of its business efªciencies.182 For example, compliance with HIPAA in its ªrst year cost an estimated $3 billion. Crafting equally restrictive provisions across the entire spectrum of overseas BPO would, by extension, potentially be prohibitively costly.183 Such analysis is important because broad-based privacy legislation has often been criticized on the grounds that it would not be cost justiªed.184 Nevertheless, although it is broader than a sectoral approach to regulating overseas BPO, a law of general applicability would still be narrow because it would only apply with a speciªc type of outsourcing transaction, BPO, and it would only apply to that transaction when it occurs in an overseas relationship.185 Thus, cost-beneªt analysis is not completely incompatible with a law of general applicability for overseas BPO.186

178 See id. at 557–58 (listing the principles of data privacy set forth in the E.U. Direc- tive); Hahn & Layne-Farrar, supra note 36, at 91–94 (listing the principles of data privacy set forth by the FTC). 179 See infra note 180 and accompanying text. 180 See McMahon, supra note 38, at 637 (explaining that consumers do not have the normal opt-out choice associated with the GLBA under instances where information is shared to perform services for the ªnancial institution); Rashbaum, supra note 22, at 25 (explaining enforcement deªciencies within HIPAA). 181 See infra note 182 and accompanying text. 182 See Hahn & Layne-Farrar, supra note 36, at 158–59 (explaining the dangers of broadly worded privacy legislation because of the possibility that such legislation could create prohibitive costs). 183 See McMahon, supra note 38, at 650. 184 See Hahn & Layne-Farrar, supra note 36, at 158–59. 185 Cf. Hahn & Layne-Farrar, supra note 36, at 159 (explaining that privacy legislation of more narrow concern, focused on particular issues, would be more likely to be cost- beneªt justiªed). 186 See id. 2006] Building Fortress India 265

Of particular importance would be enforcement provisions.187 Creating a general right of action for data privacy violations would cure already existing deªciencies in that regard.188 Further, given the difªculty in ªnding timely redress in Indian courts, such a provision would assure that those ªnding their rights violated would always have some form of expeditious recourse.189 Also worth careful scrutiny are principles detailing notice and choice.190 Notice is important because it increases consumer knowledge as to what their privacy rights are.191 At the same time, too much knowledge could be a bad thing in the context of privacy.192 Just to comply with the GLBA, around 40,000 ªnancial institutions were compelled to mail 2.5 billion privacy notices between the Act’s implementation and June, 2001.193 Choice should be limited on a careful basis.194 Default rules allowing for opt-out choice mechanisms should be mandated to guarantee privacy because a general rule of opt-in choice would be far too costly to BPO relationships.195 Such a general rule would not necessarily preclude speciªc government action to protect particularly sensitive data or sectors with opt-in mechanisms; it would only preclude their costly widespread use.196 Some form of overseas BPO legislation would also signal to India that U.S. regulation still focuses on privacy issues rather than employment concerns.197 With a slew of legislative proposals aimed at restricting overseas BPO, India has, justiªably, become extremely suspicious that U.S. efforts are not really aimed at privacy but, rather, at jobs.198 These suspicions were only bolstered by much of the anti-outsourcing

187 See, e.g., Rashbaum, supra note 22, at 25 (pointing out the lack of a private right of action in HIPAA which severely weakens enforcement in the healthcare sector). 188 See Gilbert, supra note 36, at 557–58 (detailing the numerous enforcement provisions present in the E.U. directive); Rashbaum, supra note 22, at 25 (explaining the lack of any individual right of action for HIPAA violations in medical overseas BPO). 189 See Mookherjee, supra note 121, at 125. 190 See Hahn & Layne-Farrar, supra note 36, at 91–92, 159–60. 191 See id. 192 See id. at 130. 193 See id. 194 See id. at 159–60. 195 See id. 196 See Hahn & Layne-Farrar, supra note 36, at 159–60. 197 See Engardio, supra note 1, at 28 (discussing Indian concerns that U.S. privacy legislation is not really aimed at privacy concerns but, rather, at stopping the outºow of U.S. jobs); Anti-BPO Steps: What to Worry About, supra note 100. 198 See Engardio, supra note 1, at 28. 266 Boston College International & Comparative Law Review [Vol. 29:245 of jobs rhetoric during the 2004 presidential election.199 Passing legislation targeted speciªcally at the principles of privacy protection in overseas BPO would help to refocus efforts away from job loss and back on privacy.200 In turn, such a refocusing could potentially help improve India’s conªdence in the sincerity of U.S. motives.201 Finally, beyond a utilitarian perspective, generalized legislation regarding overseas BPO would help to protect data privacy based on the notion that individuals have a right to such protection.202 It is easy to collapse the debate surrounding overseas BPO regulation into a tidy economic cost-beneªt box because the costs of compliance are easy to quantify.203 Further, it is often difªcult to quantify the beneªts of privacy protections because they are not amenable to numerical valuation.204 Nevertheless, the ease of calculating cost with the difªculty of calculating beneªt can lead to under-protection if a utilitarian philosophy dominates.205 Moreover, a utilitarian approach may not be reconcilable with certain U.S. legislation either.206 For example, the preamble to HIPAA expressly recognizes that medical privacy is a “fundamental right” different from “ordinary economic good[s].”207 The central problem with restricting discussion of overseas BPO regulation to only utilitarian concerns is that such restriction serves to commodify privacy.208 Yet, most would probably agree that personal privacy is more than a mere economic good.209 Loss of privacy is seen as a loss of personal autonomy, an affront to human dignity, or even an intrusion into one’s core-self.210 This theory would support a generalized law of overseas BPO to govern relationships such as the U.S.- Indian BPO relationship because privacy constitutes more than a mere economic commodity that is not easily valued by utilitarian cost- beneªt balancing and demands such protections despite high costs.211

199 See Duttagupta, supra note 148. 200 See Engardio, supra note 1, at 28. 201 See Engardio, supra note 1, at 28. 202 See generally Nehf, supra note 152. 203 See id. at 29. 204 See id. at 55. 205 See id. at 2–3. 206 See id. at 53. 207 See id. (quoting Standards for Privacy of Individually Identiªable Health Informa- tion, 65 Fed. Reg. 82,462, 82,464 (Dec. 28, 2000) (codiªed at 45 C.F.R. pts. 160, 164)). 208 See Nehf, supra note 152, at 30. 209 See id. 210 See id. 211 See id. 2006] Building Fortress India 267

Conclusion In order to improve the security of personal privacy in the U.S.- Indian BPO relationship, the United States ought to consider adoption of a general law of applicability, deªning data privacy standards for these types of relationships. Although there have not yet been any high-proªle instances of privacy breakdowns in the context of the U.S.-Indian relationship, deªciencies currently exist in protections that should be addressed. In the two primary sectors where overseas BPO relationships occur, ªnancial services and medical services, deªciencies exist that could compromise personal privacy. In the ªnancial services sector, primarily governed by the GLBA, these include the lack of opt-out mechanisms for overseas BPO. In the medical services sector, lack of an individual private right of action undermines the principle of enforcement and furthers the possibility of privacy breakdowns. Although not a complete list, the deªciencies in these two sectors highlight the primary structural problem in U.S. regulation. These inadequacies span the major sectors where overseas BPO occurs, and they vary by sector. Therefore, the only means of correcting them under the current approach would be the inefªcient and time-consuming process of crafting narrow legislation to deal with each sector’s own problems. U.S. policymakers ought to consider creating a law of general applicability governing oversees BPO transactions in order to rectify many of these shortcomings and provide a more consistent data privacy protection policy. Such a law would provide a set of governing principles applicable to all sectors of overseas BPO and set a ºoor of protections for data privacy. Of particular importance for such a policy would be the principles of enforcement, notice, and choice. Creation of a general right of action for those harmed by privacy violations would cure any such deªciencies in sectoral legislation. Emphasizing consumer notice provisions would be a cost-efªcient manner to promote better data privacy protections. Finally, creating a default opt-out choice mechanism would ensure that all consumers have the option to refrain from having their personal information sent overseas while not creating the excessive cost burden of an opt-in mechanism. It is important to note that all of these provisions should be structured as minimum protections that can be superseded, as need requires, by more traditional sectoral legislation. The primary beneªt of such generalized legislation would be a coherent data privacy framework for overseas BPO relationships. Such 268 Boston College International & Comparative Law Review [Vol. 29:245 a framework would ensure a minimum set of protections across sectoral lines and eliminate the loopholes that currently exist in the traditional patchwork of sectoral legislation. Further, such a framework would serve to clarify U.S. privacy expectations to Indian businesses. Finally, broad legislation of this sort would still remain cost-beneªt justiªed because it would remain narrow enough, aimed only at a particular type of BPO relationship, to avoid traditional cost criticisms of exceedingly broad privacy legislation. Finally, generalized overseas BPO legislation should be introduced because privacy is more than a mere economic commodity and demands more protections than the current utilitarian balancing affords. Allowing business concerns over cost to dominate discussion of privacy in the U.S.-Indian BPO relationship skews analysis in favor of business who can more easily quantify a numerical value for its position. This ignores important personal value placed on one’s own privacy and leads to a regime of under-protection. Therefore, in order to protect privacy in the U.S.-Indian BPO relationship, legislation should establish a minimum level of protection to ensure that privacy is not com- modiªed as an economic good and, therefore, is not under-protected as such a good. WE ARE THE WORLD? JUSTIFYING THE U.S. SUPREME COURT’S USE OF CONTEMPORARY FOREIGN LEGAL PRACTICE IN ATKINS, LAWRENCE, AND ROPER

Andrew R. Dennington*

Abstract: Since 2002, the U.S. Supreme Court has consulted contemporary foreign legal judgments to help interpret, and dramatically expand, the substantive scope of the Bill of Rights in three landmark cases. It has not, however, explained when and why contemporary foreign legal materials are relevant to a principled, objective mode of constitutional interpretation. This Note represents an attempt to do so. It postulates two rationales that could retrospectively justify the Court’s methodology in Atkins v. Virginia (2002), Lawrence v. Texas (2003), and Roper v. Simmons (2005). One is grounded in a theory of Anglo-American common law, the other rests on jus cogens and customary international law. This Note then compares the two and concludes that the jus cogens theory could best address critics’ concerns that the use of foreign law will undermine U.S. sovereignty, reduce civil liberties in this country, and vastly increase judicial discretion.

Introduction Since 2002, three landmark U.S. Supreme Court decisions—Atkins v. Virginia,1 Lawrence v. Texas,2 and Roper v. Simmons 3—have collectively signaled a decisive shift in the Court’s position regarding the relevance

* Andrew R. Dennington is Managing Editor of the Boston College International & Com- parative Law Review. The author would like to thank Professors Charles Baron, Gregory Kalscheur, S.J., and Mark Spiegel for their advice and encouragement in connection with this Note. This Note was also presented at the Yale Journal of International Law’s Fourth Annual Young Scholars Conference on March 4, 2006 at the Yale Law School. Portions of it also appeared at Andrew R. Dennington, Hearing Aid: What Democrats Should Ask John Roberts, New Republic Online, Aug. 17, 2005, http://www.tnr.com/doc.mhtml?i=w050815&s= dennington081705. 1 536 U.S. 304 (2002). 2 539 U.S. 558 (2003). 3 543 U.S. 551 (2005).

269 270 Boston College International & Comparative Law Review [Vol. 29:269 of contemporary foreign legal practice to domestic constitutional interpretation.4 In each of these cases, the Court used the legal judgments and experiences of European countries and the “world community” as aides in interpreting the substantive scope of the Eighth Amendment’s prohibition against “cruel and unusual punishments”5 and the Fourteenth Amendment’s substantive due process clause.6 This is remarkable given that, as recently as 1997, a majority of the Court clearly rejected this methodology as “inappropriate to the task of interpreting a constitution.”7 Atkins, Lawrence, and Roper have ignited a political controversy in which conservatives denounce the practice as a threat to national sovereignty,8 and liberals welcome a multilateral dialogue among the world’s jurists about domestic human rights law.9 Congressional Re-

4 This Note focuses exclusively on the application of contemporary foreign legal materials to purely domestic constitutional questions, particularly those involving civil rights and civil liberties. It does not address the use of foreign law to interpret treaties or guide choice of law in cases involving foreign parties. Those questions pose fewer theoretical difªculties than the problems analyzed in this Note. See Justice Antonin Scalia, Foreign Legal Authority in the Federal Courts, Keynote Address at the 98th Annual Meeting of The American Society of International Law (Apr. 2, 2004), in 98 Am. Soc’y Int’l L. Proc. 305, 305 (2004). Further, this Note does not concern itself with the use of historical foreign legal materials in domestic constitutional interpretation. Those materials, particularly English texts, are more obviously relevant to constitutional interpretation than contemporary foreign materials because they help illuminate the original meaning of the U.S. Constitution’s now archaic words and phrases. See id. at 306. I use the term “foreign legal practice” broadly to refer to the entire range of foreign materials that the Court consults when interpreting the U.S. Constitution. Liberals tend to think that Justices on the Court have merely been engaging in a friendly dialogue of sorts with their European counterparts, and this opinion rests upon the misconception that the Justices only cite to foreign judge-made rules, such as judgments and judicial opinions. On the contrary, the Court also consults contemporary foreign statutes, parliamentary reports, rules of evidence, and even police practices, most of which are not judge-made rules. E.g. Roper, 543 U.S. at 577–78 (discussion of British parliamentary reports and statutes); Lawrence, 539 U.S. at 572–73 (discussion of British parliamentary report and statute); New York v. Quarles, 467 U.S. 649, 673 n.6 (1984) (O’Connor, J., concurring) (discussion of British rules of evidence); Miranda v. Arizona, 384 U.S. 436, 488–89 (1966) (discussion of British, Indian, and Ceylon police practice). 5 U.S. Const. amend. VIII; see Roper, 543 U.S. at 575–78; Atkins, 536 U.S. at 316 n.21. 6 U.S. Const. amend. XIV, § 1; see Lawrence, 539 U.S. at 573, 576–77. 7 Printz v. United States, 521 U.S. 898, 921 n.11 (1997). 8 See generally, e.g., Robert H. Bork, Whose Constitution Is It, Anyway? Supreme Court Justices Are Importing Foreign Law, Signaling a Historic and Deplorable Shift, Nat’l Rev., Dec. 8, 2003, at 37. 9 See generally, e.g., Justice Ruth Bader Ginsburg, “A Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication, Keynote Address at the 99th Annual Meeting of The American Society of International Law (Apr. 1, 2005), in 99 Am. Soc’y Int’l L. Proc. 351 (2005) 2006] We Are the World? 271

publicans, upset with the Court’s use of European legal materials to help expand privacy rights in Lawrence and restrict the death penalty in Atkins and Roper, have responded by introducing legislation to sharply restrict the Court’s ability to cite foreign law.10 Judicial conservatives, led by Justice Antonin Scalia, correctly point out that the Court has yet to clearly explain when and why contemporary foreign legal materials are relevant to interpreting the U.S. Constitution.11 In particular, Justice Anthony Kennedy’s sweeping, vague opinions in Lawrence and Roper have failed to do so.12 As Justice Scalia notes, because the Court fails to tell us when foreign law is relevant and when it is not, there is no limiting principle that would prevent a future Court from one day citing contemporary foreign legal practices to restrict, rather than expand, domestic civil rights and civil liberties, particularly regarding free speech, criminal procedure, and abortion.13 The best way liberals can answer Justice Scalia is by articulating a clear theoretical rationale that explains when and why contemporary foreign legal materials are relevant to a principled, objective mode of constitutional interpretation. This Note attempts to do that. Part I provides a brief historical survey of the Court’s shifting attitudes towards the relevance of contemporary foreign legal practice in modern constitutional law. This background demonstrates that the Court’s use of foreign law is not the radically new phenomenon many conservatives believe it to be. Part II begins by outlining Justice Scalia’s legitimate concerns regarding the effect that Atkins, Lawrence, and Roper could have on national sovereignty and the rule of law. Part II continues by describing two theoretical rationales that might justify and limit the relevance of contemporary foreign legal practice to domestic constitutional interpretation and applies each to Atkins, Lawrence, and Roper. The ªrst theory, advanced by Justice Stephen Breyer, is grounded in English com-

10 H.R. Res. 97, 109th Cong. (2005); S. Res. 92, 109th Cong. (2005). These bills have attracted considerable support. The House legislation gathered 83 co-sponsors in the ªrst session of the 109th Congress. See Library of Congress THOMAS, http://frwebgate.access. gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:hr97ih.txt.pdf (last visited Apr. 11, 2006). 11 A Conversation Between U.S. Supreme Court Justices: The Relevance of Foreign Legal Materi- als in U.S. Constitutional Cases: A Conversation Between Justice Antonin Scalia & Justice Stephen Breyer, 3 Int’l J. Const. Law 519, 524–25 (Norman Dorsen ed. 2005) (comments of Justice Scalia) [hereinafter Scalia-Breyer Discussion]. 12 See Jeffrey Rosen, Juvenile Logic, New Republic, Mar. 21, 2005, at 11, 11 (describing Justice Kennedy’s reasoning regarding the relevance of foreign law as “analytically sloppy and glib”). 13 Roper v. Simmons, 543 U.S. 551, 624–26 (2005) (Scalia, J., dissenting). 272 Boston College International & Comparative Law Review [Vol. 29:269 mon law. It suggests that, because some U.S. constitutional rules are codiªcations of English common law rules, U.S. courts may consult as informative, but non-binding, the legal experiences of British and former Commonwealth jurisdictions interpreting those same common law rules. A second theory, which the Court has never explicitly adopted, is grounded in customary international human rights law. It would justify the Court’s use of foreign legal experience to determine whether a jus cogens norm applicable to the case exists and if it does, interpret the U.S. Constitution so as to reºect international standards. Finally, Part III compares these two rationales and concludes that the customary international human rights law rationale provides a more reliable foundation for the future use of foreign law in domestic constitutional interpretation. By limiting its citation of foreign law in constitutional cases to a very limited range of cases involving empiri- cally identiªable jus cogens norms, the Court could mollify some concerns that “activist judges” will use foreign law subjectively, expanding judicial discretion, and ultimately eroding U.S. cultural and legal sovereignty.

I. History and Background While conservative critics of the Court’s recent use of contemporary foreign legal materials in domestic constitutional interpretation describe this as an “alarming new trend,”14 this is, in fact, not a novel phenomenon.15 Several well-known twentieth century decisions consulted contemporary foreign practices and judgments in helping to determine the substantive content of domestic constitutional rules.16

14 Appropriate Role of Foreign Judgments in the Interpretation of American Law: Hearing on H. Res. 568 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 108th Cong. 1 (2004) (statement of Rep. Steve Chabot) [hereinafter Appropriate Role of Foreign Judgments]. 15 Infra notes 17–40 and accompanying text. “[T]he reliance on foreign or international law that we have seen in the recent cases is, in my view, consistent with our earliest legal traditions.” Appropriate Role of Foreign Judgments, supra note 14, at 14 (statement of Vicki Jackson, Professor of Law, Georgetown Law Center). 16 See infra notes 17–40 and accompanying text. It is still fair to say, however, that the Court does not consult foreign or international law in domestic constitutional interpretation nearly as often as its overseas counterparts. See Sarah K. Harding, Comparative Reason- ing and Judicial Review, 28 Yale J. Int’l L. 409, 412 (2003). Harding contrasts the U.S. Su- preme Court with the Supreme Court of Canada, which “consistently looks to the law of other nations for guidance and inspiration.” Id. at 411. 2006] We Are the World? 273

A. 1937–1989 In 1937, Justice Benjamin N. Cardozo consulted foreign legal practices in Palko v. Connecticut ,17 which considered whether the Fifth Amendment’s Double Jeopardy Clause should be made applicable to the States through the Fourteenth Amendment.18 Cardozo reasoned that immunity from self-incrimination and double jeopardy protection were not rights sufªciently fundamental to be protected by the Fourteenth Amendment because they were not “of the very essence of a scheme of ordered liberty . . . [and] justice . . . would not perish” if they were abolished.19 To support his conclusion, Cardozo pointed to contemporary foreign experience: “Compulsory self-incrimination is part of the established procedure in the law of Continental Europe.”20 In 1958, the Court extended this methodology to Eighth Amend- ment jurisprudence in Trop v. Dulles,21 which held that the Court should draw its meaning of the phrase “cruel and unusual punishments” from “the evolving standards of decency that mark the progress of a maturing society.”22 This opaque language suggested that this “maturing society” could be either global or American.23 The Court held that the Eighth Amendment prohibits the penalty of forfeiture of citizenship because, inter alia, “[t]he civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.”24 In subsequent cases, the Court again pointed to foreign legal practice as cognizable evidence of evolving standards of decency regarding application of the death penalty to defendants convicted of felony-murder25 and rape of an adult woman.26 A survey of contemporary foreign legal practices also ªgured prominently in Miranda v. Arizona, 27 which famously held that the Fifth

17 302 U.S. 319 (1937). 18 Id. at 322. 19 Id. at 325, 326. This holding, ªrst announced in Twining v. New Jersey, 211 U.S. 78, 106, 111, 112 (1908), has since been overruled by Benton v. Maryland, 395 U.S. 784, 796 (1969). 20 Palko, 302 U.S. at 326 n.3. 21 356 U.S. 86 (1958) (plurality opinion). 22 Id. at 101. 23 Joan L. Larsen, Importing Constitutional Norms from a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpre- tation, 65 Ohio St. L.J. 1283, 1293 (2004); see Ernest A. Young, Foreign Law and the Denomi- nator Problem, 119 Harv. L. Rev. 148, 148–49 (2005). 24 Trop, 356 U.S. at 102. 25 Enmund v. Florida, 458 U.S. 782, 796 n.22 (1982). 26 Coker v. Georgia, 433 U.S. 584, 596 n.10, 600 (1977). 27 384 U.S. 436 (1966). 274 Boston College International & Comparative Law Review [Vol. 29:269

Amendment prohibited admission of statements obtained from defendants during incommunicado interrogation without full prior warning of their constitutional rights.28 After announcing the new constitutional rule,29 Chief Justice Earl Warren addressed the dissenters’ concern that “society’s need for interrogation outweighs the privilege.”30 Surveying the current state of police interrogation practice in England, Scotland, India, and Ceylon, the Chief Justice concluded that “[t]he experience in some other countries also suggests that the danger to law enforcement in curbs on interrogation is overplayed.”31 Warren then asserted, referring to those former Commonwealth jurisdictions: “Moreover, it is consistent with our legal system that we give at least as much protection to these rights as is given in the jurisdictions described.”32 This intrigu- ing sentence implies that foreign legal standards somehow compelled the Court to interpret the Fifth Amendment in the manner that it did.33 The Burger Court then referred to foreign legal practice in justifying its subsequent curtailment of constitutional protections for criminal defendants.34 New York v. Quarles 35 signiªcantly restricted the scope of Miranda’s exclusionary rule by holding that, in a situation where a police ofªcer asks a suspect questions reasonably prompted by a concern for public safety, there exists an exception to the requirement that police ofªcers give that suspect Miranda warnings.36 In a concurring opinion, Justice Sandra Day O’Connor rejected this “public safety” exception37 but reached the same judgment as the majority by reasoning that Miranda’s exclusionary rule did not mandate the suppression of nontestimonial evidence, in this case, the defendant’s gun.38 O’Connor argued that, “[t]he learning of these countries [England, India, Scotland, and Ceylon] was important to development of the initial Miranda rule. It therefore should be of equal

28 Id. at 478–79. 29 Id. The long-running controversy over whether Miranda announced a constitutional rule as opposed to a judge-made rule of evidence was ªnally settled in Dickerson v. United States, 530 U.S. 428, 438 (2000). Holding that Miranda was in fact interpreting what the Fifth Amendment required, Dickerson noted that Miranda was replete with language sug- gesting so. Id. at 439. 30 Miranda, 384 U.S. at 479. 31 Id. at 486. 32 Id. at 489. 33 See id. 34 See New York v. Quarles, 467 U.S. 649, 673–74 (1984) (O’Connor, J., concurring). 35 467 U.S. 649 (1984). 36 Id. at 655–56. 37 Id. at 660 (O’Connor, J., concurring). 38 Id. at 673–74. 2006] We Are the World? 275

importance in establishing the scope of the Miranda exclusionary rule today.”39 Justice O’Connor then wrote: “Interestingly, the trend in these other countries is to admit the improperly obtained statements themselves, if nontestimonial evidence later corroborates, in whole or in part, the admission.”40

B. 1989–2002 In the late 1980s, two events set the stage for a conºict in the Court regarding the appropriate role of contemporary foreign legal practice in domestic constitutional interpretation. First, as most industrialized democracies sharply restricted or abolished capital punishment, death row inmates increasingly asked the Court to look abroad in considering whether their sentences offended evolving standards of decency.41 Second, Justice Scalia joined the Court.42 Justice Scalia quickly established himself as a vociferous and inºuential critic of the use of contemporary foreign legal practice in domestic constitutional interpretation.43 In 1989, Justice Scalia authored the majority opinion in Stanford v. Kentucky, 44 which held that the execution of a defendant convicted of a crime at sixteen or seventeen years of age did not violate evolving standards of decency and was therefore constitutional.45 Justice Scalia dismissed evidence that Western European legal systems would not authorize juvenile execution as irrelevant dicta.46 He countered that, “American conceptions of decency . . . are dispositive” in Eighth Amendment jurisprudence.47 This represented a signiªcant depar- ture from precedent.48 In a similar juvenile death penalty case decided only a year earlier, the Court had mentioned European legal practices as cognizable evidence of evolving standards of decency.49

39 Id. at 672. 40 New York v. Quarles, 467 U.S. 649, 673 n.6 (1984) (O’Connor, J., concurring). 41 E.g., Stanford v. Kentucky, 492 U.S. 361, 389–90 (1989) (Brennan, J., dissenting); Thompson v. Oklahoma, 487 U.S. 815, 830–31 (1988). 42 Justice Scalia took his seat on September 26, 1986. Supreme Court of the U.S., The Justices of the Supreme Court, at 1, available at http://www.supremecourtus.gov/ about/biographiescurrent.pdf (last visited Apr. 11, 2006). 43 See Stanford, 492 U.S. at 369 n.1 (1989). 44 492 U.S. 361 (1989). 45 Id. at 380. 46 Id. at 370 n.1. 47 Id. 48 See Thompson v. Oklahoma, 487 U.S. 815, 830–31 (1988). 49 Id. “The conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the

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In death penalty cases in 1999 and 2002, Justice Scalia’s views again prevailed.50 In Knight v. Florida,51 the Court refused to consider whether the execution of an inmate who had sat on death row for nearly twenty years constituted “cruel and unusual punishment.”52 To prove that there was an international consensus against the practice, the petitioner in Knight pointed to recent decisions from the U.K. Privy Council and European Court of Human Rights, both holding that execution following prolonged delay and multiple execution warrants could rise to the level of torture and inhumane treatment.53 While Justice Breyer found the reasoning from these and similar foreign decisions from Zimbabwe and India highly informative of what constitutes “cruel and unusual punishment,”54 Justice Clarence Tho- mas rejected their relevance.55 Two years later, the Court again denied the relevance of foreign law in a similar death row delay case.56 In 1995, Justice Scalia authored his second majority opinion that held that contemporary foreign legal experience is irrelevant in interpreting the U.S. Constitution.57 In Printz v. United States, 58 which held that a federal gun control statute unconstitutionally imposed obligations on state ofªcers to execute federal laws, Justice Scalia rebuked Justice Breyer for discussing the beneªts that the European Union real-

views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community.” Id. 50 See Foster v. Florida, 123 S. Ct. 470, 470–71 (2002) (Thomas, J., concurring in denial of cert.); Knight v. Florida, 120 S. Ct. 459, 459 (1999) (Thomas, J., concurring in denial of cert.). 51 120 S. Ct. 459 (1999) (denial of cert.). 52 Id. at 459, 461 (Breyer, J., dissenting from denial of cert.). 53 Knight, 120 S. Ct. at 462 (Breyer, J., dissenting from denial of cert.) (citing Pratt v. Attorney-General for Jamaica, [1994] 2 A.C. 1, 29, 33 (P.C. 1993) and Soering v. United Kingdom, 11 Eur. Ct. H.R. Rep. 439, 478, ¶ 111 (1989)). Pratt unanimously held that the execution of two inmates who had been on death row for fourteen years and who had been read execution warrants on three separate occasions would constitute “torture or . . . inhuman and degrading punishment” in violation of Section 17(1) of the Jamaican Consti- tution. See Pratt, [1994] 2 A.C. at 29, 33. Soering held that extradition from Europe to Vir- ginia of a man charged with capital murder would violate Article 3 of the European Hu- man Rights Convention Charter because Virginia’s protracted delays in carrying out death sentences, which averaged six to eight years, constituted inhumane and degrading punishment. Soering, 11 Eur. Ct. H.R. Rep. at 478, ¶ 111. 54 Knight, 120 S. Ct. at 462–64 (Breyer, J., dissenting from denial of cert.). 55 Id. at 459 (Thomas, J., concurring in denial of cert.). 56 Foster v. Florida, 123 S. Ct. 470, 470 n.* (2002) (Thomas, J., concurring in denial of cert.). 57 Printz v. United States, 521 U.S. 898, 921 n.11 (1997). 58 521 U.S. 898 (1997). 2006] We Are the World? 277

ized from commandeering: “We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one . . . . The fact is that our federalism is not Europe’s.”59

C. 2002–2005 Three cases since 2002 have signaled a decisive shift away from Jus- tice Scalia’s position. Atkins, Lawrence, and Roper all used contemporary foreign legal experience as interpretive aides in major decisions that signiªcantly expanded the substantive scope of the Eighth and Four- teenth Amendments’ protections for criminal defendants.60 Each decision drew a successively more deªant dissent from Justice Scalia.61 Atkins held that the execution of mentally retarded defendants is unconstitutionally “cruel and unusual punishment,” ªnding that a “national consensus” had emerged against the practice since the Court last examined the issue thirteen years ago.62 Justice John Paul Stevens then wrote in a passing footnote that “the world community” also overwhelmingly disapproved of the execution of mentally retarded offenders.63 He stated that “[a]lthough these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue.”64 In his dissenting opinion, Justice Scalia skewered this discussion of international law: But the Prize for the Court’s Most Feeble Effort to fabricate “national consensus” must go to its appeal (deservedly rele- gated to a footnote) to the views of . . . members of the so- called “world community,” . . . . [I]rrelevant are the practices

59 Id. at 921 n.11. Breyer defended himself: “Of course, we are interpreting our own Constitution, not those of other nations, and there may be relevant political and structural differences between their system and our own. But their experience may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem . . . .” Id. at 977 (Breyer, J., dissenting) (citations omitted). 60 Roper v. Simmons, 543 U.S. 551, 575-78 (2005); Lawrence v. Texas, 539 U.S. 558, 573, 576–77 (2003); Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002). 61 Roper, 543 U.S. at 622–28 (Scalia, J., dissenting); Lawrence, 539 U.S. at 598 (Scalia, J., dissenting); Atkins, 536 U.S. at 347–48 (Scalia, J., dissenting). 62 536 U.S. at 316, 321. 63 Id. at 316 n.21. 64 Id. 278 Boston College International & Comparative Law Review [Vol. 29:269

of the “world community,” whose notions of justice are (thank- fully) not always those of our people.65 One year later, Lawrence held that the liberty and privacy interests protected by the Fourteenth Amendment’s substantive due process clause extended to homosexuals engaging in private, consensual, intimate conduct,66 overruling its previous decision in Bowers v. Hard- wick.67 Justice Kennedy’s majority opinion began by attacking Bowers’s premise that “[d]ecisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization.”68 In response, Justice Kennedy noted that scores of U.S. states had either abolished or ceased to enforce their criminal prohibitions on private consensual same-sex sodomy, and that: Of even more importance, almost ªve years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. . . . The court held that the laws proscribing the [homosexual] conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981) ¶ 52. Au- thoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.69 Justice Kennedy’s use of Dudgeon was not narrowly limited to overruling Bowers’s historical assumptions but also its essential reasoning and “central holding.”70 Referring to the experience of Western European nations, he argued that “[t]he right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.”71 Lawrence made no mention of the reasoning behind Dudgeon, only its result.72 The mere existence of this European judgment, its acceptance among many nations, and the fac-

65 Atkins, 536 U.S. at 347–48 (Scalia, J., dissenting) (citations omitted). 66 Lawrence, 539 U.S. at 578. 67 Bowers v. Hardwick, 478 U.S. 186 (1986). 68 Lawrence, 539 U.S. at 571 (quoting Bowers, 478 U.S. at 196). 69 Id. at 573. 70 See id. at 575, 576–77. 71 Id. at 577. 72 Larsen, supra note 23, at 1296–97. 2006] We Are the World? 279

tual similarities between it and Lawrence, appeared to make it a legitimate aide in interpreting the proper scope of the substantive due process clause.73 Justice Scalia furiously dissented from every aspect of Lawrence, including the relevance of contemporary European legal practice to interpreting the substantive due process clause: Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. . . . The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court . . . should not impose foreign moods, fads, or fashions on Americans.”74 In 2005, Justice Kennedy’s majority opinion in Roper represented a further extension of this methodology and a direct challenge to Jus- tice Scalia.75 Roper overruled Justice Scalia’s decision in Stanford and held that the death penalty cannot be imposed on offenders who were under eighteen years of age at the time of their capital crimes, citing a “national consensus” that had emerged since 1989.76 While not essential to his factual ªnding that this national consensus existed and therefore technically dicta, Justice Kennedy again pointed to foreign, particularly British, law and international materials, including treaties that the U.S. Senate has not ratiªed, as “instructive for [the Court’s] interpretation of the Eighth Amendment.”77 Comparison to foreign jurisdictions demonstrated “the stark reality that the United States is the only country in the world that continues to give ofªcial sanction to the juvenile death penalty.”78 Justice Kennedy then argued that “[t]he opinion of the world community, while not controlling our

73 Id. 74 Lawrence, 539 U.S. at 598 (Scalia, J., dissenting) (citing Foster v. Florida, 123 S. Ct. 470, 470 n. (2002) (Thomas, J., concurring in denial of cert.)). 75 Roper v. Simmons, 543 U.S. 551, 575–78 (2005). 76 Id. at 564–67. 77 Id. at 575–78. 78 Id. at 575. Scalia rejects the notion that foreign views can be relevant to “conªrming” a national consensus. Id. at 627 n.9 (Scalia, J., dissenting). He writes that “[e]ither America’s principles are its own, or they follow the world; one cannot have it both ways.” Id. 280 Boston College International & Comparative Law Review [Vol. 29:269 outcome, does provide respected and signiªcant conªrmation for our own conclusions.”79 Anticipating Justice Scalia’s dissent, Justice Ken- nedy wrote: “[I]t does not lessen our ªdelity to the Constitution or our pride in its origins to acknowledge that the express afªrmation of certain fundamental rights by other nations and peoples simply un- derscores the centrality of those same rights within our heritage of freedom.”80

D. The Current State of the Law The Court’s vacillations regarding the relevance of contemporary foreign legal practices in domestic constitutional interpretation have produced a confusing jumble of precedent, pro and con.81 At bare minimum, Atkins and Roper clearly hold that foreign experience is instructive in determining the “evolving standards of decency” that guide Eighth Amendment jurisprudence.82 In substantive due process analysis, Lawrence and Palko both can be seen as standing for the proposition that contemporary foreign legal practices and judgments may also inform the Court’s determination of which rights are sufªciently fundamental to be protected by the Fourteenth Amendment.83 Miranda and Quarles are also still good law, and both suggest that it is proper to consider the experience of other members of Anglo-American common law community in deªning the substantive scope of the Fifth Amend- ment’s Self-Incrimination Clause.84 Printz is the only one of Justice Scalia’s majority opinions that clearly rejects the use of foreign law in interpreting the U.S. Constitution that is still good law.85 One could infer from this that the Court is willing to consider contemporary foreign legal experience in interpreting the scope of the Constitution’s protections of individual rights but not cases concerning separation of powers and federalism.86 That may now be the black letter law in this area, but it is unclear whether the Court itself intended such a result.

79 Roper, 543 U.S. at 578. 80 Id. 81 Compare Roper, 543 U.S. at 578, with Printz v. United States, 521 U.S. 898, 921 n.11 (1997). 82 Roper, 543 U.S. at 575-78; Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002). 83 See Lawrence v. Texas, 539 U.S. 558, 573, 576–77 (2003); Palko v. Connecticut, 302 U.S. 319, at 326 n.3 (1937). 84 See New York v. Quarles, 467 U.S. 649, 673–74 (1984) (O’Connor, J., concurring); Miranda v. Arizona, 384 U.S. 436, 488–89 (1966). 85 Printz, 521 U.S. at 921 n.11. 86 See supra notes 81–85 and accompanying text. 2006] We Are the World? 281

That is why it is necessary for the Court to re-consider the theoretical rationale for this methodology.

II. Discussion

A. Justice Scalia’s View: Foreign Materials Can Never Be Relevant to Domestic Constitutional Interpretation As an originalist, Justice Scalia believes that “modern foreign legal materials can never be relevant to an interpretation of—to the meaning of—the U.S. Constitution.”87 Old foreign legal materials, particularly from England, may be relevant to understanding the original intent of the archaic words and phrases in the Constitution.88 Justice Scalia’s main problem with citing modern foreign law “is not so much that the law is foreign, but that it is modern.”89 Beyond this originalist critique, Justice Scalia also objects that this methodology has the potential to undermine both the rule of law and national sovereignty.90

1. Cultural Sovereignty Conservative critics argue that contemporary foreign legal materials are not appropriate interpretive aides because they reºect foreign legal cultures that may differ signiªcantly from our own.91 For example, Justice Scalia believes that Justice Breyer’s references in Knight and Foster to Eng- lish and Jamaican judgments holding that extensive delay in executing a death sentence renders the punishment cruel and unusual are irrelevant to interpreting our own constitution, because England and Jamaica lack the extensive habeas corpus appeals available to U.S. defendants.92 In the United States, lengthy delays in execution are caused by the defendants’ appeals, rather than solely because of government action, as in Jamaica.93

87 Scalia, supra note 4, at 307. Some jurists attempt to defend the use of foreign materials from an originalist perspective. See Ginsburg, supra note 9, at 352. Justice Ginsburg argues: “The drafters and signers of the Declaration of Independence cared about the opinions of other peoples . . . . The Declarants stated their reasons [for independence] ‘out of a decent Respect to the Opinions of Mankind.’” Id. 88 See Scalia, supra note 4, at 306. 89 Michael C. Dorf, The Use of Foreign Law in American Constitutional Interpretation: A Re- vealing Colloquy Between Justices Scalia and Breyer, FindLaw’s Writ, Jan. 19, 2005, http://writ. ªndlaw.com/dorf/20050119.html. 90 See Roper v. Simmons, 543 U.S. 551, 622–28 (2005) (Scalia, J., dissenting). 91 See Foster v. Florida, 123 S. Ct. 470, 470 n. (2002) (Thomas, J., concurring in denial of cert.). 92 See Scalia-Breyer Discussion, supra note 11, at 528–29 (comments by Justice Scalia). 93 See id. 282 Boston College International & Comparative Law Review [Vol. 29:269

In Roper, he similarly attacked the Court’s “special reliance on the laws of the United Kingdom . . . . a country that has developed, in the centuries since the Revolutionary War—and with increasing speed since the United Kingdom’s recent submission to the jurisprudence of European courts dominated by continental jurists—a legal, political, and social culture quite different from our own.”94

2. Threat of Restricting Domestic Civil Rights Critics of the Court’s methodology point out that the use of foreign law is a two-way street; so long as the Court deems it relevant to all cases interpreting the Constitution, it can also be used to restrict the scope of constitutional rights in the United States.95 The United States has a unique constitutional jurisprudence, whose precepts are now deeply embedded in American culture.96 The United States affords its citizens uniquely extensive protections in the areas of criminal procedure, free speech, defamation, separation of church and state, and re- productive rights.97 Justice Scalia noted in Roper that the Court has never considered foreign views in interpreting the First Amendment or the Sixth Amendment, though it has articulated no clear reason why those views should not be taken into consideration.98 In his words, the Court does not take its own directive seriously.99

3. Increased Judicial Discretion Justice Scalia also argues that the Court’s inconsistent use of contemporary foreign legal experience undermines the rule of law because, by expanding the universe of law that judges can apply to any particular set of facts, the ultimate disposition of the case becomes less predictable and more likely to vary from judge to judge.100 He writes: “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophis- try.”101 What particularly irks Justice Scalia is that the Court has mentioned foreign legal experience in cases concerning the rights of ho-

94 543 U.S. at 626–27 (Scalia, J., dissenting). 95 See id. at 624–26. 96 See id. 97 Id. 98 See id. at 624–25. 99 Roper v. Simmons, 543 U.S. 551, 627 (2005) (Scalia, J., dissenting). 100 Scalia, supra note 4, at 309. 101 Roper, 543 U.S. at 627 (Scalia, J., dissenting). 2006] We Are the World? 283

mosexuals but not abortion cases, despite the fact that both are interpreting the same substantive due process clause.102

B. Justice Breyer’s View: Contemporary Materials from the Anglo-American Common Law Community Can Be Relevant to Constitutional Interpretation Justice Breyer has a different view, implicitly arguing that the Court can justiªably consult the contemporary experiences of British and former Commonwealth jurisdictions if and when it interprets constitutional rules that have their origins in English common law.103 Several provisions of the U.S. Constitution represent codiªcations of important principles of English common law as they existed in 1789.104 For example, the Eighth Amendment prohibition against “cruel and unusual punishments” was taken almost verbatim from Section 10 of the English Declaration of Rights of 1689, which provided “[t]hat excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inºicted.”105 The Fifth Amendment rule regarding the admission of coerced confessions also traces its origins back to a standard of English common law at the time of the Constitution.106 Many other common law nations have laws regarding cruel and unusual punishment and the privilege against self-incrimination that are derived from the same common law that is reºected in the Eighth Amendment107 and the Fifth Amendment.108 Given these historical and

102 See id. at 625-26. 103 See Foster v. Florida, 123 S. Ct. 470, 472 (2002) (Breyer, J., dissenting from denial of cert.); Knight v. Florida, 120 S. Ct. 459, 462-63 (1999) (Breyer, J., dissenting from denial of cert.). In practice, however, Justice Breyer has not limited his use of foreign law to materials from within the Anglo-American common law community. See, e.g., Printz v. United States, 521 U.S. 898, 976-77 (1997) (Breyer, J., dissenting) (citing Swiss, German, and European Union experience). 104 See Dickerson v. United States, 530 U.S. 428, 433 (2000); Harmelin v. Michigan, 501 U.S. 957, 966 (1991). 105 See Harmelin, 501 U.S. at 966. 106 See Dickerson, 530 U.S. at 433. 107 The textual similarities between the Eighth Amendment and similar prohibitions in the constitutions of former Commonwealth jurisdictions are evidence that they share a common historic ancestor in the English Bill of Rights of 1689. See, e.g., Can. Const. pt. I, § 12 (“Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”); Jam. Const. ch. III, § 17(1) (“No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.”); Zimb. Const. ch. III, § 15(1) (“No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”). 108 See Jeffrey K. Walker, A Comparative Discussion of the Privilege Against Self-Incrimination, 14 N.Y. L. Sch. J. Int’l & Comp. L. 1, 6, 12, 14, 19 (1993) (describing how U.S., English,

284 Boston College International & Comparative Law Review [Vol. 29:269 textual connections, when a U.S. court is presented with a difªcult or novel question concerning the proper interpretation of the Eighth Amendment or Fifth Amendment Self-Incrimination Clause, it might consult, for example, the judgments of English, Canadian, and Indian courts that wrestled with similar questions.109 This common law dialogue among jurists would resemble what U.S. state supreme courts do when they look at decisions from neighboring states regarding common law principles of property, contracts, and torts as informative but non-binding guides.110 Under this approach, the relevance of the foreign rule to domestic constitutional interpretation is always non- binding; it depends upon the depth of its reasoning rather than simply its result.111 Justice Breyer’s well-reasoned dissents in Knight and Foster provide an illustration of this methodology at work.112 In considering whether the execution of a defendant after he had sat on death row for nearly twenty years constituted cruel and unusual punishment, Justice Breyer compared and contrasted judgments from common law courts— including England, Jamaica, Canada, and Zimbabwe—that were also interpreting constitutions that banned “torture or . . . inhuman or degrading punishment.”113 Most reasoned that the “suffering inherent in a prolonged wait for execution” undermined the sentence’s basic re- tributivist or deterrent purpose, making the subsequent execution unconstitutionally disproportionate punishment.114 Justice Breyer noted that these decisions were “relevant and informative” precisely because these common law jurisdictions were applying “standards roughly comparable to our own constitutional standards,” which all derived from a common ancestor.115 Some lower federal courts follow this comparative

Canadian, and Indian rules regarding the privilege against self-incrimination share common historical origins). 109 See, e.g., Knight v. Florida, 120 S. Ct. 459, 462-63 (1999) (Breyer, J., dissenting from denial of cert.). 110 See Appropriate Role of Foreign Judgments, supra note 14, at 54–55 (testimony of Prof. Vicki Jackson). 111 See Scalia-Breyer Discussion, supra note 11, at 523 (comments of Justice Breyer). This use contrasts with the “moral fact-ªnding” approach criticized by Professor Larsen, where foreign rules are treated as relevant irrespective of the reasoning behind the rule. See Lar- sen, supra note 23, at 1295–96. 112 See Foster v. Florida, 123 S. Ct. 470, 472 (2002) (Breyer, J., dissenting from denial of cert.); Knight, 120 S. Ct. at 462–63 (Breyer, J., dissenting from denial of cert.). 113 Knight, 120 S. Ct. at 463 (Breyer, J., dissenting from denial of cert.). 114 See id. at 462. 115 Id. at 463–64; see also Foster, 123 S.Ct. at 472 (Breyer, J., dissenting from denial of cert.) 2006] We Are the World? 285

common law rationale in post-Lawrence decisions that use contemporary foreign legal practice as an aide in interpreting the scope of the Eighth Amendment116 and the Fifth Amendment’s Self-Incrimination Clause.117

1. Application to Atkins This common law theory of comparative constitutional law would not justify the Court’s use of foreign legal materials in Atkins.118 Atkins cited to legal practice and opinion in the “world community” writ large, with no special emphasis on common law jurisdictions.119 Justice Ste- vens took no account of the reasons why foreign legal courts and legislatures rejected execution of the mentally retarded; the foreign rules were relevant because of their results, not their reasoning.120

2. Application to Lawrence Justice Kennedy’s opinion in Lawrence did focus on British legal experience, including parliamentary reports and acts, in informing his interpretation of the scope of the Fourteenth Amendment’s substantive due process clause.121 Lawrence primarily relied, however, on a decision from the European Court of Human Rights rather than a British court.122 Further, the European Court was interpreting a document, the European Convention on Human Rights, which postdates the Four- teenth Amendment by almost a century and whose operative language differs signiªcantly.123 The respective rights to privacy protected by the Fourteenth Amendment and European Convention on Human Rights

116 See, e.g., United States v. Sampson, 275 F. Supp. 2d 49, 65–66, 83–84 (D. Mass. 2003) (discussing English experience with the death penalty in considering defendant’s claim that the Federal Death Penalty Act violates the Eighth Amendment). 117 See, e.g., United States v. Sasson, 334 F. Supp. 2d 347, 373–75 (E.D.N.Y. 2004) (discussing English judgments regarding the admissibility of evidence found as a result of compelled self-incrimination in interpreting the scope of the Miranda exclusionary rule). 118 See 536 U.S. 304, 316 n.21 (2002). 119 Id. 120 See Larsen, supra note 23, at 1295–96, 1296 n.59. 121 539 U.S. 558, 572–73 (2002). 122 Dudgeon v. United Kingdom, 3 Eur. Ct. H.R. Rep. 40, 54, ¶ 97 (1980) (cited in Lawrence, 539 U.S. at 573, 576–77). 123 See id. The text of Article 8(1) of the European Convention on Human Rights is far more explicit about announcing a right to privacy than is the text of Fourteenth Amend- ment to the U.S. Constitution. Compare Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 8(1), Eur. T.S. 5 (“Everyone has the right to respect for his private and family life . . . .”), with U.S. Const. amend. XIV § 1 (no state shall “deprive any person of life, liberty, or property, without due process of law”). 286 Boston College International & Comparative Law Review [Vol. 29:269 do not share a common law ancestor.124 Justice Kennedy’s use of foreign law is also inconsistent with this theory of common law dialogue because it did not make the relevance of the legal rule contingent on the strength of its reasoning.125 Justice Kennedy did not mention the reasoning behind Dudgeon, assuming that the “human freedom” protected by Article 8(1) of the European Convention on Human Rights was interchangeable with the liberty protected by the Fourteenth Amendment’s substantive due process clause.126 However desirable Jus- tice Kennedy’s decision was on the merits, his use of foreign legal materials as an interpretive aide was unsupported by a common law theory of comparative constitutional law.127

3. Application to Roper Justice Kennedy adopted this comparative common law approach more explicitly in Roper, again placing particular emphasis on British materials.128 He argued: “[T]he United Kingdom experience bears particular relevance here in light of the historic ties between our countries and in light of the Eighth Amendment’s own origins.”129 Justice Ken- nedy mentioned the Eighth Amendment’s ancestor, the English Decla- ration of Rights of 1689, and discussed how the U.K. recognized the disproportionate punishment inherent in the juvenile death penalty and abolished it in 1948.130 Implicitly, Justice Kennedy seemed to be reasoning that the British interpretation of what constitutes “cruel and unusual punishment,” reºected in its parliamentary acts and government policies, was a well-reasoned rule that could represent a similarly sensible interpretation of the parallel American rule.131

124 Compare Convention for the Protection of Human Rights and Fundamental Free- doms, Nov. 4, 1950, art. 8(1), Eur. T.S. 5 (“Everyone has the right to respect for his private and family life . . . .”), with U.S. Const. amend. XIV § 1 (no state shall “deprive any person of life, liberty, or property, without due process of law”). Substantive due process, unlike procedural due process, has only a tenuous historical connection to the common law reºected in the Magna Carta’s per legem terrae. See Hurtado v. People of California, 110 U.S. 516, 531–32 (1884). 125 See Larsen, supra note 23, at 1297. 126 See Lawrence, 539 U.S. at 573, 576–77. 127 See supra notes 121–26 and accompanying text. 128 See 543 U.S. 1183, 1199–1200 (2005). 129 Id. at 1199. 130 Id. at 1199–1200. 131 See id. Justice Kennedy generally refers to British statutes and practices, while Justice Breyer generally refers to British judge-made rules. See Roper v. Simmons, 543 U.S. 551, 577–78 ( Justice Kennedy’s discussion of British parliamentary reports and statutes); Law- rence v. Texas, 539 U.S. 558, 572–73 (Kennedy’s discussion of British parliamentary report

2006] We Are the World? 287

C. An Alternative View: Jus Cogens and Constitutional Interpretation A second, far more politically controversial theory that could justify the Court’s recent use of contemporary foreign legal practice is grounded in the doctrine of customary international human rights law.132 In 1900, the Court held in The Paquete Habana133 that, “[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.”134 Paquete Habana also recognized that a rule of international law can become binding through the “customs and usages of civilized nations.”135 A norm crystallizes into a rule of customary international law when there is sufªcient state practice consistent with it and opinio juris, meaning states follow the practice from a sense of legal obligation.136 As Paquete Habana suggests, however, customary international law is part of U.S. law only to a very limited extent.137 Paquete Habana’s holding only applies to a fact pattern to which no controlling U.S. executive, legislative, or judicial act can be applied, which in that case involved a foreign ªshing vessel seized in international waters as a prize of war.138 In contrast, when a U.S. statute controls the facts of the case, federal courts have held that customary international law cannot supplant that domestic law.139

and statute); Knight v. Florida, 120 S. Ct. 459, 462-63 (1999) (Breyer, J., dissenting from denial of cert.) ( Justice Breyer’s discussion of British and Commonwealth judicial opinions). To a judge using this comparative common law approach, foreign statutes are less useful than foreign judgments because they are rarely accompanied by readily discernable reasoning. See id. 132 See generally Ken I. Kersch, Multilateralism Comes to the Courts, 154 Pub. Int. 3 (2004) (a conservative criticism of applying customary international human rights law in the federal courts). 133 175 U.S. 677 (1900). 134 Id. at 700. 135 Id. 136 See Statute of the International Court of Justice, June 26, 1945, art. 38(1)(b), 59 Stat. 1031, T.S. No. 993 (referring to “international custom, as evidence of a general practice accepted as law”); Restatement (Third) of Foreign Relations Law of the U.S. § 102(2) (1987) [hereinafter Foreign Relations Restatement] (“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.”). 137 175 U.S. at 700. 138 Id. 139 Munoz v. Ashcroft, 339 F.3d 950, 958 (9th Cir. 2003); United States v. Yousef, 327 F.3d 56, 93 (2d Cir. 2003). 288 Boston College International & Comparative Law Review [Vol. 29:269

Federal appellate courts hold that only in rare situations when a rule of customary international law has ripened into a jus cogens norm does it enjoy nonderogable and peremptory status such that it could trump U.S. law.140 The concept of a jus cogens peremptory norm is difªcult to describe.141 Article 53 of the Vienna Convention on the Law of Treaties deªnes it somewhat tautologically: “[A] peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted . . . .”142 U.S. federal courts recognize the universal nature of jus cogens, which “embraces customary laws considered binding on all nations” and “is derived from values taken to be fundamental by the international community, rather than from the fortuitous or self-interested choices of nations.”143 In other words, a jus cogens norm differs from a mere rule of customary international law in that it enjoys near universal acceptance.144 Basic rules of international human rights law that protect the intrinsic dignity of the human person enjoy such status.145 Jus cogens doctrine could justify the use of contemporary foreign legal practice in interpreting the Eighth Amendment.146 Federal case law and the American Law Institute’s Restatement (Third) of Foreign Rela- tions Law state that prohibitions against ofªcial torture and cruel and

140 Cf. United States v. Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995) (citing Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939–40 (D.C. Cir. 1988)) (holding that the kidnapping of a defendant by government agents in Honduras for purposes of bringing defendant to the United States to face trial was not justiciable in federal court because it did not violate a recognized U.S. constitutional or statutory provision or a jus cogens norm, given that the prohibition against kidnapping does not qualify as a jus cogens norm); see also Foreign Relations Restatement, supra note 136, at § 102 cmt. k. 141 See Karen Parker & Lyn Beth Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int’l & Comp. L. Rev. 411, 414 (1989). 142 Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S. 331. 143 Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir. 1992) (citing David F. Klein, A Theory for the Application of the Customary International Law of Human Rights by Domes- tic Courts, 13 Yale J. Int’l L. 332, 350–51 (1988)). 144 See id. 145 See Foreign Relations Restatement, supra note 136, at § 702 cmt. n. These include protections against genocide, slavery, torture, and state-sponsored murder. Id. 146 See, e.g., Geoffrey Sawyer, Comment, The Death Penalty Is Dead Wrong: Jus Cogens Norms and the Evolving Standard of Decency, 22 Penn St. Int’l L. Rev. 459, 481 (2004); Kha Q. Nguyen, Note, In Defense of the Child: A Jus Cogens Approach to the Capital Punishment of Juveniles in the United States, 28 Geo. Wash. J. Int’l L. & Econ. 401, 436 (1995). 2006] We Are the World? 289 unusual punishment enjoy jus cogens status.147 Because these nonderogable prohibitions are binding on all states, and the responsibility to follow them are obligations erga omnes,148 it makes sense that the United States must interpret its own constitutional prohibition against “cruel and unusual punishment” so as to afford its citizens at least as much protections as jus cogens norms demand.149 The Court’s “evolving standards of decency” jurisprudence already embodies the natural law concept of jus cogens and recognizes the Eighth Amendment as a human rights law: “The basic concept underlying the Eighth Amend- ment is nothing less than the dignity of man . . . .”150 Jus cogens might also play a legitimate role in interpreting the scope of the due process clause in cases involving arbitrary detention or abu- sive interrogation techniques.151 The Fourteenth Amendment already prohibits state law enforcement conduct that “shocks the conscience” or interferes with rights “implicit in the concept of ordered liberty.”152 Like the “evolving standards of decency” test in Eighth Amendment jurisprudence, this broad, universal language seems to allow room for a consideration of foreign views.153 Therefore, in an unusual case where the arbitrary detention or torture of a party did not violate a recognized U.S. constitutional or statutory provision but nonetheless fell below universally accepted human rights standards, the Court might reinterpret the Fourteenth Amendment “up” so that it at least reºect jus cogens norms.154 It is likely that such a case could soon come before the

147 Blake, 965 F.2d at 717; Foreign Relations Restatement, supra note 136, at § 702 cmt. n; see also Filartiga v. Pena-Irala, 630 F.2d 876, 882 (2d Cir. 1980) (referring to the ban on ofªcial torture as “part of customary international law”). 148 See Foreign Relations Restatement, supra note 136, at § 702 cmt. o. 149 See Nugyen, supra note 146, at 437–38; see also Viktor Mayer-Schönberger & Teree E. Foster, More Speech, Less Noise: Amplifying Content-Based Speech Regulations Through Binding International Law, 18 B.C. Int’l & Comp. L. Rev. 59, 90 (1995) (proposing jus cogens as “a constitutional interpretive device” for the First Amendment); Parker & Neylon, supra note 141, at 457 (arguing that the U.S. Supreme Court has been “using jus cogens analysis, though not the term ‘jus cogens’” in interpreting the Fourteenth Amendment). 150 Atkins v. Virginia, 536 U.S. 304, 311 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 100–01 (1958) (plurality opinion)). 151 See Foreign Relations Restatement, supra note 136, at § 702(e) (recognizing the prohibition against state practice or encouragement of “prolonged arbitrary detention” as a jus cogens norm). 152 See Chavez v. Martinez, 538 U.S. 760, 787 (2003) (citing Rochin v. California, 342 U.S. 165, 172 (1952)); Palko v. Connecticut, 302 U.S. 319, 325–26 (1937). 153 See Chavez, 538 U.S. at 787; Palko, 302 U.S. at 325-26. 154 See Foreign Relations Restatement, supra note 136, at § 702(e); cf. Palko, 302 U.S. at 325–26 (considering foreign legal practice but refusing to reinterpret the Four- teenth Amendment “up” where the existing U.S. constitutional rule concerning double jeopardy did not fall below international human rights standards). 290 Boston College International & Comparative Law Review [Vol. 29:269

Court because, as the U.S. legal system increasingly condones interrogation techniques that its European counterparts would not, there is a greater possibility that U.S. constitutional rules regarding torture may afford detainees less robust protection than customary international law.155

1. Application to Atkins and Roper The Court could have used jus cogens doctrine to support its decisions banning the juvenile death penalty in Roper and execution of the mentally retarded in Atkins.156 In determining whether a rule of customary international human rights law has crystallized into a jus cogens norm, a court must examine contemporary state practices for indicia of near universal acceptance.157 Without couching it in the language of international law, Justice Kennedy essentially did this by conducting a factual survey of legal practices throughout the world, including both foreign law and international treaties, concerning the death penalty.158 Noting that even notorious human rights violators such as Iran, Yemen, and China no longer executed juvenile offenders, Justice Kennedy concluded: “In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty.”159 These facts could have supported the conclusion that the international custom prohibiting the juvenile death penalty had ripened into a jus cogens norm and was therefore controlling in this case.160 Stevens could have used similar reasoning to support the Court’s decision in Atkins, given his factual ªnding that “within the world community, the imposition of the death penalty for crimes committed

155 See Rosen, supra note 12, at 12 (noting disagreements between Europeans and Americans regarding the appropriate line between privacy and security after September 11, 2001). 156 See Carrie Martin, Comment, Spare the Death Penalty, Spoil the Child: How the Execution of Juveniles Violates the Eighth Amendment’s Ban on Cruel and Unusual Punishment in 2005, 6 S. Tex. L. Rev. 695, 719–24 (2005); Sawyer, supra note 146, at 481. See generally Nguyen, supra note 146. But see Young, supra note 23, at 150 n.16 (arguing that few “domestic lawyers [could] take . . . seriously” the contention that the prohibition of the juvenile death penalty is a jus cogens norm that controls the interpretation of the Eighth Amendment). 157 See Statute of the International Court of Justice, art. 38(1)(b), supra note 136; For- eign Relations Restatement, supra note 136, at § 102(2). 158 Roper v. Simmons, 543 U.S. 551, 575-78 (2005). 159 Id. at 575. 160 See id.; see also Nguyen, supra note 146, at 433–35 (presenting empirical evidence of a jus cogens norm prohibiting juvenile executions). 2006] We Are the World? 291 by mentally retarded offenders is overwhelmingly disapproved.”161 While the Court refuses to admit that when it consults “evolving standards of decency” throughout the “world community” in death penalty cases, it is really interpreting the U.S. Constitution to reºect international human rights law,162 some lower federal courts are willing to follow the lead and cite Atkins for this proposition.163

2. Application to Lawrence Customary international human rights law cannot similarly justify Lawrence’s use of foreign law.164 Unlike the prohibition against ofªcial torture reºected in the Eighth Amendment, the Fourteenth Amend- ment’s right to engage in private, consensual, intimate contact free from government interference does not have sufªcient state practice to have ripened into a rule of customary international law.165 Further, Lawrence’s discussion of foreign law was limited to a discussion of how “Western” jurisdictions conceive of human freedom rather than how the world community writ large perceives it.166

161 See Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002). “The Court’s reasoning in At- kins, evokes at the very least natural law theory, and at the most, the very essence of jus cogens.” Sawyer, supra note 146, at 481. 162 See Atkins, 536 U.S. at 316 n.21. Prior to Roper, the Court declined to entertain claims that the juvenile death penalty violated customary international law or a principle of jus cogens. Domingues v. Nevada, 528 U.S. 963 (1999), denying cert. to Domingues v. State, 961 P.2d 1279, 1279-80(Nev. 1998). 163 See, e.g., Kane v. Winn, 319 F. Supp. 2d 162, 201–02 (D. Mass. 2004) (reafªrming “the importance of international law in deªning the liberties protected by the Bill of Rights”). 164 Privacy rights do not yet enjoy nearly enough recognition, particularly in non- Western courts, to be considered customary international norms, but some privacy rights may achieve that status in the foreseeable future. See Foreign Relations Restatement, supra note 136, at § 702 cmt. a. For example, the United Nations Human Rights Commit- tee recently acknowledged states’ growing recognition of “a right of privacy in intimate relationships, enjoyed by all citizens regardless of sexual orientation” in holding that Aus- tralia had violated Article 26 of the International Covenant on Civil and Political Rights by denying a pension to the same-sex partner of a deceased war veteran. Mr. Edward Young v. Australia, U.N. Doc. CCPR/C/78/D/941/2000 (2003) (concurring opinion), available at http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/3c839cb2ae3bef6fc1256dac002b30 34?Opendocument. 165 See Lawrence v. Texas, 539 U.S. 558, 598 (2003) (Scalia, J., dissenting) (stating that “many countries . . . have retained criminal prohibitions on sodomy”). 166 See id. at 573, 576–77; see also Scalia-Breyer Discussion, supra note 11, at 531 (comments of Justice Scalia). 292 Boston College International & Comparative Law Review [Vol. 29:269

III. Analysis The previous section described two theories that might justify and limit the relevance of contemporary foreign legal practice in domestic constitutional interpretation: a comparative common law approach and a customary international human rights law approach.167 This section compares the two and argues that the customary international human rights law approach would best address the concerns that Justice Scalia expressed regarding the possible misuses of foreign law in constitutional cases.168 Its adoption by the Court would better strengthen the political position of its “internationalist” wing, led by Justice Breyer, by restricting the use of foreign law in domestic constitutional interpretation to a limited number of cases in which the human rights considerations are the most pressing.169

A. Cultural Sovereignty The customary international human rights law rationale better addresses Justice Scalia’s concern that the Court will import alien cultural norms and impose them upon a nation that has not assented to them.170 As noted above, a rule of customary international law can only be used to trump existing U.S. law if it has attained jus cogens status.171 Jus cogens human rights norms, which by deªnition must enjoy near universal acceptance, transcend cultural differences in that they have their origins in natural law.172 They only regulate a few categories of behavior—genocide, slavery, murder, torture, prolonged arbitrary detention, systematic racial discrimination—that offend an intrinsic dignity of the human person that all cultures recognize.173 Their application to U.S. constitutional interpretation would not, therefore, impose alien cultural norms on the United States.174

167 See supra notes 103–17, 132–55 and accompanying text. 168 See infra notes 170–94 and accompanying text. 169 See infra notes 170–94 and accompanying text. 170 See supra notes 91–94 and accompanying text. 171 See United States v. Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995). 172 See Mark W. Janis, The Nature of Jus Cogens, 3 Conn. J. Int’l L. 359, 361 (1988). 173 Foreign Relations Restatement, supra note 136, at § 702. For example, most of these human rights are mentioned in the Universal Declaration of Human Rights, whose preamble recognizes the “inherent dignity . . . of all members of the human family . . . .” Universal Declaration of Human Rights, preamble, arts. 4, 5, 9, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (Dec. 12, 1948). 174 See Universal Declaration of Human Rights, pmbl., arts. 4, 5, 9, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (Dec. 12, 1948); Foreign Relations Restatement, supra note 136, at § 702. 2006] We Are the World? 293

In contrast, a common law approach to comparative constitutional law does run the risk of importing foreign cultural norms into the U.S. Constitution.175 For example, federal courts that use contemporary British legal materials to justify limiting the scope of the Fifth Amend- ment’s Self-Incrimination Clause176 are watering down Miranda warnings that have become deeply embedded in an American culture that has a unique conception of civil liberties that our common law cousins do not necessarily share.177 This is precisely the evil that Justice Scalia condemned in Roper: “special reliance on the laws of the United King- dom . . . a country that has developed, in the centuries since the Revo- lutionary War—and with increasing speed since the United Kingdom’s recent submission to the jurisprudence of European courts dominated by continental jurists—a legal, political, and social culture quite different from our own.”178 In this respect, the use of contemporary foreign legal materials under the common law approach does pose a threat to U.S. cultural sovereignty.179

B. Potential to Justify Restriction of Domestic Civil Rights Unlike the comparative common law approach, the customary international human rights law rationale would, by deªnition, never be used to restrict the scope of individual rights in the United States.180 While the use of contemporary legal materials from Britain and former Commonwealth countries in interpreting those provisions of the Bill of Rights with common law origins would generally result in the expansion of individual rights in Eighth Amendment jurisprudence,181 the opposite is true in Fifth Amendment cases.182 In contrast, customary international human rights law would be used to set a ºoor, not a ceil-

175 See New York v. Quarles, 467 U.S. 649, 673–74 (1984) (O’Connor, J., concurring); United States v. Sasson, 334 F. Supp. 2d 347, 374–75 (E.D.N.Y. 2004). 176 See Quarles, 467 U.S. at 673–74 (O’Connor, J., concurring); Sasson, 334 F. Supp. 2d at 374–75. 177 See Roper v. Simmons, 543 U.S. 551, 624 (2005) (Scalia, J., dissenting) (“The Court- pronounced exclusionary rule, for example, is distinctively American.”); Dickerson v. United States, 530 U.S. 428, 430 (2000). 178 543 U.S. at 626-27 (Scalia, J., dissenting). 179 See id.. at 624–25. 180 See Nadine Strossen, Recent U.S. and International Judicial Protection of Individual Rights: A Comparative Legal Process Analysis and Proposed Synthesis, 41 Hastings L.J. 805, 806– 07 (1990). 181 See, e.g., Roper, 543 U.S. at 578. 182 See, e.g., New York v. Quarles, 467 U.S. 649, 673–74 (1984) (O’Connor, J., concurring); United States v. Sasson, 334 F.Supp. 2d 347, 374–75 (E.D.N.Y. 2004). 294 Boston College International & Comparative Law Review [Vol. 29:269 ing, for the protection of domestic civil rights and civil liberties.183 If a domestic constitutional rule already provided a claimant superior protection than a prevailing international norm, the Court could uphold the domestic rule “unless the ordinary conditions for overcoming the presumption of stare decisis were met.”184 If the Court limited its use of contemporary foreign legal materials only to a search for jus cogens applicable to domestic constitutional interpretation, foreign law would not be invoked, as it was in Quarles, to reduce the scope of individual civil rights and civil liberties.185

C. Increased Judicial Discretion Finally, the customary international human rights law rationale would result in a more objective, predictable application of foreign legal practice to domestic constitutional interpretation than would the comparative common law approach.186 While the theoretical un- derpinnings of jus cogens may be abstract, the American Law Institute’s Restatement (Third) of Foreign Relations and the federal courts have succeeded in limiting its substantive scope to a few areas central to the protection of human dignity.187 Because these jus cogens norms must enjoy near universal state acceptance, as Professor Nadine Strossen argues: “The existence and acceptance of international human rights norms are matters susceptible to objective determination.”188 Under the customary international human rights law rationale, the use of contemporary foreign legal practice could be limited to interpretation of the Eighth Amendment,189 dealing with the jus cogens prohibition against cruel and unusual punishment, and the due process clause, dealing with the jus cogens prohibition against torture and arbitrary detention.190 In the rare case where state practice violated jus

183 See Strossen, supra note 180, at 806–07. 184 Larsen, supra note 23, at 1325. 185 See Quarles, 467 U.S. at 673–74 (O’Connor, J., concurring). But see Mayer-Schönberger & Foster, supra note 149, at 135 (advocating the application of jus cogens in First Amendment jurisprudence to restrict speech that is currently permitted). 186 See infra notes 187–94 and accompanying text. 187 United States v. Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995) (ªnding that prohibition against ofªcial kidnapping is not a jus cogens norm such as prohibitions against torture, slavery, or genocide); Foreign Relations Restatement, supra note 136, at § 702. 188 Strossen, supra note 180, at 830. But see Larsen, supra note 23, at 1305–07 (challenging scholars and jurists who argue that rules of customary international human rights law are objectively ascertainable). 189 See supra notes 146–50 and accompanying text. 190 See supra notes 151–55 and accompanying text. 2006] We Are the World? 295

cogens and existing U.S. law did not already provide a remedy, then a judge would be obliged to apply the jus cogens norm because that norm is binding and nonderogable erga omnes (to all states).191 In contrast, a judge following the comparative common law rationale is afforded wide discretion to either consult or ignore contemporary foreign legal practices in interpreting the Eighth and Fifth Amendments.192 The decisions of British and former Commonwealth courts would be always informative, but never binding, and the tempta- tion to make the relevance of the foreign rule depend upon how well it comports with a desired result may be too great to resist.193 While U.S. state supreme court judges already enjoy a similar level of discretion when consulting judgments from other state supreme courts in interpreting common law and their own state constitutions, the threat that wide judicial discretion can pose to a stable rule of law is ampliªed when applied to federal courts interpreting constitutional rules with enormous political and social consequences.194

Conclusion Atkins, Lawrence, and Roper all reached desirable results on the merits, but all three failed to explain when and why the Court should use contemporary foreign legal practices to assist in domestic constitutional interpretation.195 Without clear guidelines, the application of foreign law to U.S. constitutional interpretation poses several problems.196 These risks include the erosion of national sovereignty, vastly increased judicial discretion, and the possibility of someday citing foreign law to restrict the Constitution’s protections for criminal defendants and un- popular speakers.197 Unless the Court at least makes an effort to address these concerns, the conservative backlash against perceived “judicial activism” will only grow, further imperiling the Court’s political capital and good relations with its co-equal branches.198

191 See Foreign Relations Restatement, supra note 136, at § 702 cmt. o. 192 See Scalia-Breyer Discussion, supra note 11, at 531 (comments of Justice Scalia). 193 See id. 194 See Scalia, supra note 4, at 309. Scalia likens foreign law to legislative history in its capacity to increase the scope of subjective judicial discretion. Id. 195 See Scalia-Breyer Discussion, supra note 11, at 525 (comments of Justice Scalia). 196 Supra notes 91–102 and accompanying text. 197 Supra notes 91–102 and accompanying text. 198 Justice Ginsburg has said of the congressional backlash against the use of foreign law: “Although I doubt the resolutions will pass this Congress, it is disquieting that they have attracted sizable support.” Anne E. Kornblut, Justice Ginsburg Backs Value of Foreign Law, N.Y. Times, Apr. 2, 2005, at A10. Some on the far right have cited Justice Kennedy’s

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The Court needs to adopt a limiting principle that makes contemporary foreign legal practice relevant to some constitutional cases but not to others.199 Jus cogens doctrine would provide the Court with a workable rule, giving the application of foreign law a more objective character and sharply restricting the number of occasions on which it would be relevant, but without altering the end result in cases like At- kins and Roper.200 The adoption of such a rule would require political courage because it would inspire inevitable criticism from jurists hostile to any application of international law.201 Given the executive and legislative branches’ increasing hostility towards the Court and suspicion of “activist judges,” the continuing political cost of not adopting any rule may be greater still.202

citation of foreign law in Lawrence and Roper as grounds for impeachment. Dana Milbank, And the Verdict on Justice Kennedy Is: Guilty, Wash. Post, Apr. 9, 2005, at A3. 199 See Larsen, supra note 23, at 1322–26. 200 See supra notes 167–94 and accompanying text. As this Note has argued, however, neither of these theories can adequately justify Justice Kennedy’s use of foreign law in Law- rence. See supra notes 121–27, 164–66 and accompanying text. 201 See generally, e.g., Kersch, supra note 132. 202 See supra note 198. HYDROELECTRIC POWER PRODUCTION IN COSTA RICA AND THE THREAT OF ENVIRONMENTAL DISASTER THROUGH CAFTA

R. Victoria Lindo*

Abstract: CAFTA’s ratiªcation threatens Costa Rica’s environmental integrity by permitting foreign investors virtual free reign to destroy its precious waterways through environmentally unsound methods of hydroelectric power production. While CAFTA contains provisions that appear to protect the environments of the Central American signatory states, it also contains provisions similar to NAFTA’s Chapter 11, which foreign investors have used to weaken environmental laws by suing those states that have dared to enforce them. This Note explores existing environmental laws in Costa Rica governing hydroelectric power production, including its privatization. It also discusses and compares NAFTA’s Chapter 11 to CAFTA’s Chapter 10 in order to illustrate the threat to Costa Rica’s waterways through private hydroelectric power production. This Note then argues that, in order to preserve its waterways, Costa Rica must not ratify CAFTA. Alternately, it argues that if Costa Rica does ratify CAFTA, the state should consider adopting both preventative and remedial measures to weaken its blow.

Introduction The decision to exploit hydroelectric energy resources in developing countries is a hotly debated issue.1 Though hydroelectric power is economically sensible for many developing countries, it is simulta-

* R. Victoria Lindo is the Senior Production Editor of the Boston College International & Comparative Law Review. The author was exposed to this issue through her work at the Monteverde Conservation League in Monteverde, Costa Rica. To ªnd out more about this organization please visit www.acmcr.org. 1 See, e.g., Int’l Rivers Network, Rivers of Mesoamerica (2004), http://www.irn. org/programs/meso/index.html; see World Comm’n on Dams, Dams and Development: A New Framework for Decision-Making 6 (2000), available at http://www.dams.org/ report/overviews.htm; Elizabeth Anderson, Electricity Sector Reform Means More Dams for Costa Rica, World Rivers Rev., Aug. 2002, at 3, 3.

297 298 Boston College International & Comparative Law Review [Vol. 29:297 neously inherently destructive to their environments.2 In some nations such as Costa Rica, policymakers inevitably tend to favor hydroelectric power despite the environmental consequences.3 In Costa Rica, this is partly because the country has unique natural resources that engender prime conditions for hydroelectric power production.4 Speciªcally, the orientation of Costa Rica’s mountain chains combined with its heavy rainfall have created a large number of rivers that are perfectly suited for hydroelectric dams.5 These rivers and waterways have become the nation’s foremost energy resource, which is impressive given that the country also enjoys a number of other natural energy resources including wind, geothermal, and solar power.6 In fact, hydroelectric power has become an indispensable energy resource in Costa Rica and currently provides over 80% of the nation’s electricity.7 On one hand, hydroelectric power provides a number of beneªts to Costa Rica.8 For example, because of its ability to produce great quantities of electricity, hydroelectric power helps minimize Costa Rica’s dependence on fossil fuels.9 In fact, Costa Rica is largely self- sufªcient in most energy needs and only requires the importation of oil for transportation.10 Costa Rica’s need for oil is so minimal that, despite knowledge of oil deposits off the country’s Atlantic coast, the president has chosen not to permit their development in light of environmental concerns.11 On the other hand, hydroelectric dams also have the propensity to cause serious and irreparable damage to both the environment and

2 See World Comm’n on Dams, supra note 1, at 10. See generally John D. Echeverria et al., Rivers at Risk: The Concerned Citizen’s Guide to Hydropower 4–7 (1989) (describing how dams harm rivers). 3 See Anderson, supra note 1, at 3; World Comm’n on Dams, supra note 1, at 9 (noting the increasing demands for water, electricity and other resources supplied by hydroelectric power). 4 See Anderson, supra note 1, at 3. 5 Id. 6 See Inter-Am. Dev. Bank, Hydro and Geothermal Electricity as an Alterna- tive for Industrial Petroleum Consumption in Costa Rica 14 (1982). 7 See Anderson, supra note 1, at 3; Centro Nactional de Planiªcación Eléctrica, Análisis Comparativo: De las Variables Relacionados con el Consumo de Energia Eléctrica en Costa Rica 2001–2002, at 10 (2003) [hereinafter CNPE]. 8 U.S. Dep’t of State, Background Note: Costa Rica (2005), http://www.state. gov/r/pa/ei/bgn/2019.htm [hereinafter Background Note: Costa Rica]. 9 Id. 10 Id. 11 See id. 2006] Hydroelectric Power Production in Costa Rica 299

their surrounding communities.12 Even a well constructed and maintained dam can make a river inhospitable to native ªsh and plant species, and some types of dams actually dewater riverbeds for miles, such that animals, plants, surrounding communities, and recreation seek- ers are barred from using the river.13 Hydroelectric dams are also notorious for forcibly uprooting and displacing entire indigenous surrounding communities around the world.14 In developing countries such as Costa Rica, hydroelectric power’s potential beneªts are often lost and its environmental and social consequences exacerbated when production and distribution are privatized.15 Nevertheless, there has been no shortage of proposed international agreements aimed at privatizing state hydroelectric monopolies in Costa Rica and throughout Central America.16 One example, the Plan Puebla Panama (PPP), which aims to expand the electrical grid throughout Central America and Mexico in order to attract private producers and supply the United States with electricity from Central American hydroelectric dams.17 This project has been principally ªnanced through international ªnancing institutions like the Inter- American Development Bank (IDB) that would all receive substantial economic beneªts if the project went through.18 International agreements like the PPP tend to share one disturbing feature: the beneªts of privatization are enjoyed almost entirely by the international organizations, and those beneªts come at a very high cost to the citizens and the environments of these countries.19

12 See generally Echeverria, supra note 2, at 4–7. 13 Id. at 4–5. 14 U.N. Dep’t of Econ. & Soc. Affairs, Comm. on Sustainable Development, Statement of the 5th Global Civil Society to the 8th Special Session of the UNEP Governing Council/Global Minis- terial Environment Forum: Background Paper No. 7, at 3, U.N. Doc. DESA/DSD/2004/7 (Apr. 14–30, 2004), available at http://www.un-ngls.org/Jeju%20Statement.doc; see also Monti Aguirre, Latin American Rivers Endangered by Regional Development Schemes, World River Rev., Dec. 2002, at 12, 12. 15 See ECLAC Reports Privatization Has Been Bad for Regional Power, NotiCen: Cen. Am. & Caribbean Affs., May 13, 2004, at 1–3, available at 2004 WLNR 6570641 [hereinafter ECLAC Reports]. 16 See Aguirre, supra note 14, at 12. See generally Fabian Borges, CAFTA: A View from Cen- tral America, Resource Center of the Americas, Feb. 20, 2004, available at http://www. americas.org/index.php?cp=item&item_id=13782 [hereinafter CAFTA: A View] (discussing both the failed “ICE Energy Combo Bill” of 2000 and the Central American Free Trade Agreement). 17 Aguirre, supra note 14, at 12. 18 Id. 19 See generally ECLAC Reports, supra note 15; Aguirre, supra note 14. 300 Boston College International & Comparative Law Review [Vol. 29:297

The Costa Rican legislature now faces the dilemma of whether to ratify the Central American Free Trade Agreement (CAFTA), which threatens environmental protections throughout Central America by allowing foreign investors to sue governments for enforcing their environmental laws.20 For Costa Rica, whose electricity comes ªrst and foremost from its rivers, this means that CAFTA threatens to irrepara- bly destroy those rivers and their surrounding environments, thereby also threatening the unique and delicate ecological balance of the nation.21 The Background of this Note will discuss Costa Rican environmental laws regulating hydroelectric power production and compare them with laws in other Central American countries that have already shifted toward privatization. The Discussion section will describe the ways in which CAFTA threatens Costa Rica’s environment through the partial privatization of Costa Rica’s energy monopoly, speciªcally in hydroelectric power production. The Analysis will argue that Costa Rica must maintain its state energy monopoly, ªght further privatization without increasing current restrictions on it, close loopholes in its current environmental laws, and more effectively enforce its existing environmental laws.

I. Background Though continuing to allow the development of private and public hydroelectric power production across the country, Costa Rica has recognized its dangers and has passed a number of laws strictly regulating it in order to protect both its citizens and the environment.22 Costa Rica started generating more comprehensive environmental leg-

20 See Central American Free Trade Agreement, Aug. 5, 2004, available at http://www. ustr.gov/Trade_Agreements/Bilateral/CAFTA/CAFTA-DR_Final_Texts/Section_Index.html [hereinafter CAFTA]; David Armstrong, CAFTA Friends, Foes State Their Case on Free Trade Deal: Central America Pact Goes to House After OK by Senate, S.F. Cron., July 3, 2005, at B1; Press Re- lease, EarthJustice et al., U.S. Groups Oppose the Central American Free Trade Agreement: The CAFTA Signed Today Falls Short on the Environment, May 28, 2004, at 1, available at www.citizen.org/documents/CAFTA_Fact_Sheet_Enviro.pdf [hereinafter EarthJustice]. 21 See generally Aguirre, supra note 14, at 12 (noting the damaging effects of international privatization agreements on rivers and their surrounding environments). 22 See Ley Organica, Law No. 7554 of Oct. 4, 1995, arts. 50, 51, 52, 57, 64, 65, 67, reprinted in Ricardo Zeledón, Código Ambiental [Environmental Code] 14 (Porvenir 1998); Ley de Conservación de la Vida Silvestre, Law No. 7317 of Oct. 21, 1992, (reformed by Laws Nos. 7495 of May 3, 1995 and 7497 of May 2, 1995, and 7788 of Apr. 30, 1998), art. 132, reprinted in Zeledón, supra, at 93; Ley de Aguas, Law No. 276 of Aug. 27, 1942 (reformed by Laws Nos. 2332 of Apr. 9, 1959, 5046 of Aug. 16, 1972 and 5516 of May 2, 1974), arts. 1, 2, 17, 19, 27, reprinted in Zeledón, supra, at 141. 2006] Hydroelectric Power Production in Costa Rica 301

islation around 1994, some of which was aimed speciªcally at protecting its rivers and waterways.23 First and foremost, in 1994, Costa Rica amended Article 50 of its Constitution to endow every citizen with the right to a healthy and ecologically balanced environment.24 Two years later, it amended Ar- ticle 46, which makes clear that the state was obligated to ensure that protection.25 Facilitated by Article 46, Article 50 has taken on great importance in Costa Rica and has become the foundation of nearly all environmental legal protection in that country.26 Soon afterward, the government began passing laws speciªcally targeted at protecting the country’s waterways.27 First, Costa Rica has a number of laws which regulate private exploitation of the country’s water.28 For example, Article I of the Water Law speciªes which waters are considered public including all rivers and their tributaries.29 Also, Article 27 delineates a hierarchy of preferred exploitations of public water in which it demonstrates a strong preference for public over private hydroelectric dams.30 Thus, anyone, including private hydroelectric generators, wishing to take advantage of the river’s natural resources can only do so if granted a contract by the state, subject to certain restrictions, such as the hierarchy listed in Article 27.31 If a private electricity generator is granted a state contract, it must stipulate that it will sell all the electricity it produces to the state energy regulatory body, the Instituto Costarricense de Electricidad (ICE), which in turn maintains a complete monopoly over the distribution of electricity to customers.32 As a result, the government retains the ability and responsibility to control energy prices, which has

23 See Constitución Politica de la Republica de Costa Rica, arts. 46, 50, reprinted in Ze- ledón, supra note 22, at 3; Ley Organica, supra note 22, arts. 50, 51, 52, 57, 64, 65, 67; Ley de Conservación de la Vida Silvestre, supra note 22, art. 132; Ley de Aguas, supra note 22, arts. 1, 2, 17, 19, 27. 24 Constitución, supra note 23, art. 50. 25 Id. art. 46. 26 Id. arts. 46, 50; see, e.g., Lauren Wolkoff, High Court Dampens Oil Plans, Tico Times (San José, Costa Rica), Feb. 15, 2002, available at http://www.elaw.org/news/partners/ text.asp?id=989. See generally Facio & Cañas, Environmental Law Matrix and Practice Skills (2002), available at http://www.lexmundi.com/images/lexmundi/PDF/Costa%20 Rica%20-%202002.pdf (listing article 50 as governing a variety of environmental issues). 27 See infra notes 29–42 and accompanying text. 28 See infra notes 29–42 and accompanying text. 29 Ley de Aguas, supra note 22, art. 1. 30 Id. art. 27. In this list, public hydroelectric plants are listed fourth and private plants are listed seventh out of nine acceptable forms of exploitation. Id. 31 Id. arts. 2, 27. 32 Anderson, supra note 1, at 3. 302 Boston College International & Comparative Law Review [Vol. 29:297 historically allowed the government to set energy prices below cost or to delay energy price increases.33 In order to obtain a state contract, private electricity generators are required to solicit an environmental impact assessment from the National Environmental Technical Secretariat (SETENA).34 SETENA will assess the probable impact of the proposed project on the environment and decide whether that impact is within legal bounds.35 If so, the company can move forward; if not, the project is quashed.36 Once a private company has obtained a contract, it is subject to a number of legal restrictions.37 For example, the plant is required to use the river rationally and efªciently in order to conserve and protect the environment as much as possible, and the law strictly limits the degree to which the company may alter the quality or the quantity of the water, even requiring the company to treat it if that is necessary to equalize it in quality to the receiving body of water.38 The company is also required to actively protect and maintain the equilibrium of the river as well as the watershed which feeds the river and must take adequate remedial measures to limit and correct contamination.39 Failure to do so is punishable by a minimum ªne of ¢50.000 and up to two years in prison.40 Nonetheless, several Costa Rican laws and regulations fall short of adequately protecting its environment.41 For example, Article 67, which requires both public and private entities using a river to protect its watershed, is only enforceable according to the classiªcation of use and potential of the water.42 Thus, if a river is classiªed for hydroelectric use

33 Cf. Inter-Am. Dev. Bank, supra note 6, at 76 (regarding Costa Rica’s past decisions to set energy prices below cost and delaying price increases as negative). 34 Ley de Aguas, supra note 22, art. 17 (establishing SETENA); Anderson, supra note 1, at 3. 35 See generally Fabián Borges, Environment Ministry Issues Proposal to Reform SETENA, Tico Times (San José, Costa Rica), May 15, 2003, available at http://www.ticotimes.net/ dailyarchive/2003_05/Week2/05_15_03.htm#story_two. 36 See generally id. 37 See Ley Organica, supra note 22, art. 51, 52, 57, 64, 65, 67; Ley de Conservación de la Vida Silvestre, supra note 22, arts. 132. 38 Ley Organica, supra note 22, arts. 57, 64, 65. 39 Id. arts. 51, 52, 67. 40 Ley de Conservación de la Vida Silvestre, supra note 22, art. 132. The colon is the Costa Rican currency. As of March 11, 2006, one U.S. dollar was equal to 503 Costa Rican colones. Yahoo Finance, Currency Converter (Mar. 11, 2006) http://ªnance.yahoo.com/ currency/convert?amt=1&from=USD&to=CRC&submit=Convert. 41 See infra notes 42–43 and accompanying text. 42 See Ley Organica, supra note 22, art. 67. Article 65 has a similar limiting clause. Id. art. 65. 2006] Hydroelectric Power Production in Costa Rica 303

only, the protection of its watershed is less than a watershed classiªed for bathing or drinking.43 Furthermore, the stringent regulations that Law 7200 of 1990 originally imposed upon privatized electricity generators have since been greatly weakened.44 Originally, this law limited the total amount of electricity generated by private companies to 15% of the total domestic production.45 In 1995, however, Costa Rica amended the law to allow private companies to produce up to 30%.46 Fortunately, the amendment did not weaken the law’s other restrictions.47 Thus, the law still limits the maximum installed generation capacity of private plants to twenty megawatts, and limits foreign investment in private generation companies to 65% of total investments.48 It is arguable that achieving the goals of Costa Rica’s environmental laws would have been easier without the passage of Law 7200, because electricity production and distribution was managed entirely by ICE, a government organization that could be held accountable by the public.49 Granted, Law 7200 was passed with the intention of better distributing the costs and responsibilities of electricity production among several entities while simultaneously meeting the continually increasing demand for electricity.50 But this legislation, as amended, has exposed Costa Rica to the negative consequences of permitting foreign investment in private electricity production that has been sweeping developing nations.51 Thus far, fortunately, Costa Rica has managed to fair far better than its Central American neighbors who have permitted greater degrees of privatization.52

43 See generally id. 44 See La Ley que Autoriza la Generación Eléctrica Autónoma o Paralela, Law No. 7200 of Sept. 28, 1990, reformed in Law 7508 of May 31, 1995, at 2, 3, available at http://www. racsa.co.cr/asamblea/proyecto/leyes_r.htm[hereinafter Law 7200]; Anderson, supra note 1, at 3. 45 Law 7200, supra note 47, at 5; CNPE, supra note 7, at 10. 46 Law 7200, supra note 47, at 5; CNPE, supra note 7, at 10. 47 Law 7200, supra note 47, at 2, 3. 48 Id. 49 See Anderson, supra note 1, at 3; ECLAC Reports, supra note 15, at 1–3. 50 Anderson, supra note 1, at 3. 51 Anderson, supra note 1, at 3; ECLAC Reports, supra note 15, at 1–3. 52 See ECLAC Reports, supra note 15, at 1–3. 304 Boston College International & Comparative Law Review [Vol. 29:297

A. Comparison of Costa Rica’s Environmental Laws to Other Central American Countries That Have Seen Greater Degrees of Privatization In many other Central American countries, privatization of electricity production has already proven disastrous in numerous ways.53 Privatization has occurred in varying degrees throughout Central America.54 This ranges from the privatization of electricity generation, transmission, or distribution to actually selling state-run generation facilities like dams to private entities, thereby completely eliminating the government’s role and responsibilities in the electricity sector.55 One major problem borne by Central American countries that have experienced greater degrees of privatization is skyrocketing energy prices.56 In fact, in Central American countries that have completely privatized energy production and distribution like El Salvador and Guatemala, energy prices are a staggering 56% higher than in Costa Rica.57 In contrast, Costa Rica, where privatization of electricity production has been more gradual than in other countries, has generally managed to maintain low energy costs for its citizens.58 Efªciency has also been a signiªcant problem in privatized countries.59 On average, privatized countries suffer between 20–32% production losses, whereas Costa Rica has managed to reduce losses to just 9%.60 While privatization was expected to increase competition, only two companies control 70–90% of production in privatized Cen- tral American countries, providing them little incentive to improve efªciency.61 On the other hand, the gradual nature of privatization combined with the maintenance of a law limiting the degree of participation of private companies in hydroelectric power production in

53 Id. at 1 (noting that privatization in Central America has only beneªted the “fat ªsh,” who avoid renewable energy sources and concentrate on fossil fuel ªred plants and under whose direction domestic rates have doubled or tripled in some areas). 54 Id. at 1–3. 55 Anderson, supra note 1, at 3. 56 See ECLAC Reports, supra note 15, at 1–2. 57 Id. 58 Id. at 1; Mauricio Salas, Down with Diesel, Project & Trade Fin., Oct. 1, 2005, at S46, available at 2005 WLNR 18285805 (noting that consumer rates are stable and affordable). 59 ECLAC Reports, supra note 15, at 2. 60 Id. These production loses are due to technical shortcomings caused by lack of improvement in the infrastructure and theft. Id. 61 Id. 2006] Hydroelectric Power Production in Costa Rica 305

Costa Rica has helped the country avoid these kinds efªciency-related issues.62 Privatization also has failed to improve distribution rates.63 For example, in Guatemala, where an excess of electricity is produced, large numbers of people in rural areas are still without electricity.64 In contrast, 98% of Costa Rica is electriªed.65 Costa Rica, however, has not managed to escape all of the problems associated with privatization.66 As a result of the 1990 electricity reform, one serious consequence of privatization that Costa Rica now shares with other Central American countries is the devastating environmental impact.67 In Costa Rica, while the distribution of electricity is still under the control of ICE, more privately owned and operated hydroelectric plants are gradually being built all over the country.68 In fact, over a little more than a decade, more than thirty privately owned and operated small to mid-sized hydropower dams have been constructed on Costa Rica’s rivers, many of them exploiting just three watersheds on the San Carlos, Reventazón, and General rivers, and over a hundred more are planned.69 While the private electricity producers point out that they have been crucial in supplying Costa Rica’s electricity during the twice daily peak demand periods, it is quickly becoming apparent that the rapid growth in hydroelectric power plants is causing serious, potentially irreversible damage to vital watersheds and the plants and animals that inhabit them.70 As disturbing as this is, further privatization promises far worse consequences for Costa Rica.71 Overall, while Costa Rica has an admirable compilation of environmental legislation compared to its neighbors, the truth is that those laws fail to adequately prevent hydroelectric plants from causing serious environmental damage as is, and if Costa Rica further privat-

62 Id. 63 See id. at 1. 64 ECLAC Reports, supra note 15, at 1. By way of comparison, over nine million people in Mexico remain without electricity. Id. 65 Salas, supra note 58, at 4. 66 See Anderson, supra note 1, at 3. 67 See ECLAC Reports, supra note 15, at 3; Anderson, supra note 1, at 3. 68 Anderson, supra note 1, at 3. 69 CNPE, supra note 7, at 10; Anderson, supra note 1, at 3; Aguirre, supra note 14, at 12. 70 Anderson, supra note 1, at 3. 71 See ECLAC Reports, supra note 15, at 1–3. For example, Central American countries with greater degrees of privatization of electricity production have seen a dramatic decrease in the production of electricity from renewable sources like hydro, solar, and wind power and an increase in the usage of fossil fuels. Id. at 2. 306 Boston College International & Comparative Law Review [Vol. 29:297 izes its energy sector, the environmental consequences could be catastrophic.72 Yet, Costa Rica faces that very threat if its legislature ratiªes CAFTA because of its liberal foreign investment rules.73

II. Discussion Before discussing CAFTA, it is worth summarizing the current problems with Costa Rica’s environmental laws regulating hydroelectric power and with privatization in order to better illustrate the problems that CAFTA threatens to create or exacerbate.74

A. Current Problems with Costa Rica’s Environmental Laws Regulating Hydroelectric Power Production First, Costa Rica’s laws do not stem the uncontrolled planning and expansion of dams, even though its domestic electricity needs are almost completely met.75 In fact, Costa Rica currently produces enough electricity to export to other Central America countries.76 Despite this, over a hundred more hydroelectric plants are being planned both by ICE and by private investors.77 Some of these new plants are being permitted by the government despite the detriment being caused cu-

72 See, e.g., Mueren Peces en Aºuente del San Juan, La Prensa, Apr. 27, 2004, available at http://www-ni.laprensa.com.ni/archivo/2004/abril/27/elmundo/ (demonstrating the failure of current environmental law to stop environmental disaster by hydroelectric dams through the reporting of the second hydroelectric accident to affect the San Carlos river in six months); see Álvaro Sánchez Córdoba, Descontrol Con Hidroeléctricas, Al Día (San José, Costa Rica), Nov. 4, 2003, available at http://www.aldia.co.cr/ad_ee/2003/noviembre/ 04/elnorte2.html [hereinafter Descontrol]; EarthJustice, supra note 20, at 1. 73 See CAFTA, supra note 20, arts. 10.3, 10.5, 10.6, 10.7, 10.16; EarthJustice, supra note 20, at 1. Cf. Final Environmental Review of the Dominican Republic—Central America— United States Free Trade Agreement, Feb. 2005, at 2, available at http://www.ustr.gov/ trade_Agreements/Bilateral/CAFTA/Section_Index.html [hereinafter Final Environmental Review] (ªnding that “CAFTA-DR can have positive environmental consequences in Cen- tral America . . . by reinforcing efforts to effectively enforce environmental laws . . . .”). 74 See infra notes 72–88 and accompanying text. 75 See Anderson, supra note 1, at 3; Descontrol, supra note 72; see, e.g., Álvaro Sánchez Córdoba, Ríos Amenezados, Al Día, Apr. 27, 2004, available at http://www.aldia.co.cr/ ad_ee/2004/abril/27/elnorte0.html [hereinafter Ríos Amenezados]. 76 Energy Information Administration, Central America, Electricity, http://www.eia. doe.gov/emeu/cabs/Central_America/Electricity.html (last visited Feb. 22, 2006) (demonstrating that Costa Rica’s production of electricity exceeds its consumption); Salas, supra note 58, at 1 (noting that Costa Rica exports its electricity surplus to Nicaragua and Hon- duras). 77 Aguirre, supra note 14, at 12; see Descontrol, supra note 72 (noting that there are eighty hydroelectric projects planned on the San Carlos river alone). 2006] Hydroelectric Power Production in Costa Rica 307

mulatively by these dams to local communities and the environment.78 For example, in October of 2003, less than a year after it began operations, the Peñas Blancas hydroelectric dam released a massive amount of sedimentation, causing the deaths of thousands of ªsh and other wildlife on the Peñas Blancas and San Carlos rivers and causing potentially irreversible environmental damage as well.79 Unfortunately, this is not an isolated incident.80 Just two years earlier, the same event occurred at a privately owned hydroelectric dam on the San Lorenzo River.81 At the heart of this problem is the fact that Costa Rican law does not limit the number of dams per watershed, which, combined with the law that severely restricts the amount of electricity that dams are allowed to produce, results in too many dams on a watershed whose individual environmental damage combines to create much more severe destruction.82 And there is no lack of incentive for private companies to continue constructing dams: the twenty-eight private hydroelectric plant owners collectively bring in thirty-ªve billion colones annually, while ICE makes less than thirty-two billion.83 Moreover, with both domestic and foreign consumption rates rapidly increasing, there is no lack of customers.84 Yet the decision to continue constructing new dams to meet exportation demands is risky and possibly unwise, as both of Costa Rica’s major energy customers, Nicaragua and Honduras, are also in the process of developing their own domestic energy production systems (and thus wont need the electricity in the future), not to mention their mutual poverty begs the question of

78 See Anderson, supra note 1, at 3; Eugenio Guido Pérez, Federación Costarricense para la Conservación del Ambiente (FECON), ICE Impone, Comunidades se Oponen al Proyecto Hidroeléctrico Pacuare, Diálogos Ambeintales, Oct. 2004, at 10. 79 Monteverde Group Circulates Petition Against Pocosol Dam, Tico Times (San José, Costa Rica), May 7, 2004, available at http://www.ticotimes.net/dailyarchive/2004_05/Week1/ 05_07_04.htm [hereinafter Monteverde Group]. 80 See, e.g., Carlos Hernández P., Sedimento Mata Peces, La Nación (San José, Costa Rica), Oct. 25, 2001, available at http://www.nacion.com/ln_ee/2001/octubre/25/pais13.html. 81 See id.; Ríos Amenezados, supra note 75 (noting that serious contamination by hydroelectric plants occurred within a six month period to the Platanar, Peñas Blancas, San Car- los, and part of the San Juan rivers). 82 See Anderson, supra note 1, at 3; Ríos Amenezados, supra note 75. 83 FECON, Monitoreo de Represas, Diálogos Ambientales, Oct. 2004, at 11 [hereinafter Monitoreo de Represas]. As of March 11, 2006, 35 billion colones equaled approximately $69,481,664, and 32 billion equaled approximately $63,526,092. See Yahoo Finance, supra note 40. 84 See Salas, supra note 58, at 4. 308 Boston College International & Comparative Law Review [Vol. 29:297 whether they will continue to be able to pay for the electricity.85 This gap in the legal system has been recognized by the Costa Rican government, although legislation correcting it has yet to be passed.86 Another problem that both compounds the aforementioned issue and creates its own problems surrounds the enforcement of environmental laws.87 For example, SETENA has approved some environmental impact studies that should have been rejected.88 More importantly, many observers feel that Costa Rica’s environmental laws are simply not adequately enforced.89 One researcher noted that, while interviewing environmental lawyers, a common response was, “In Costa Rica, the problem is not that there are not laws, but rather that they are not followed.”90 In addition, there has also been speculation about corruption within both SETENA and ICE, which inherently undermines public conªdence in their effectiveness.91 All these environmental challenges, while signiªcant indeed, will pale in comparison to the far more major problems CAFTA ratiªcation would create.92

B. An Overview of the Problems Threatened by CAFTA Though Costa Rica would not submit to U.S. pressures to outright privatize the state energy monopoly through CAFTA (though it did agree to open the state insurance and telecommunications monopo-

85 See id. at 4, 5; U.S. Dep’t of State, Background Note: Nicaragua (2005), http:// www.state.gov/r/pa/ei/bgn/1850.htm (stating that Nicaragua is still the second poorest country in the hemisphere and is highly dependant on foreign assistance); U.S. Dep’t of State, Background Note: Honduras (2005), http://www.state.gov/r/pa/ei/bgn/1922. htm (noting that Honduras is one of the poorest countries in Latin America and is in severe foreign debt). 86 See Anderson, supra note 1, at 3. 87 Michael Gelardi, Environment, Economy and Energy in Costa Rica: The Case of Petroleum Exploration in the Province of Límon, Macalester Envtl. Rev., May 2001, http://www. macalester.edu/environmentalstudies/MacEnvReview/costarica.htm. 88 See, e.g., id. (noting the controversy surrounding SETENA’s original approval of the Harken environmental impact report to conduct exploratory drilling for oil, though that approval was later overturned by the Costa Rican Supreme Court, and a second environmental impact report was rejected by SETENA). 89 Id.; Interview with Carlos Muñoz Brenes, Director, Monteverde Conservation League, in Monteverde, Costa Rica ( July 15, 2004). 90 Gelardi, supra note 87. 91 See Federación Costarricense para la Conservación del Ambiente, Corrupción en SETENA: Necesaria una Profunda Investigacion ( June 2004), available at http://www. feconcr.org/contents/com-setena.htm (last visited Apr. 11, 2006); More Alcatel Kickbacks Uncovered, Inside Costa Rica (San José, Costa Rica), Oct. 10, 2004, available at http:// insidecostarica.com/dailynews/2004/october/10/nac0.htm. 92 See Discussion infra Part B. 2006] Hydroelectric Power Production in Costa Rica 309

lies), CAFTA contains other provisions that directly threaten Costa Rica’s ability to maintain that monopoly regardless.93 At ªrst glance, CAFTA appears to respect Costa Rica’s energy monopoly and environmental laws.94 The treaty recognizes a number of Costa Rica’s regulations governing the privatization of hydroelectric power production, including Law 7200, and reafªrms Costa Rica’s right to regulate privatization as it sees ªt.95 It also restates the more important aspects of Law 7200, such as the limitation on private plants’ electricity production and the requirement that they sell their electricity to ICE for redistribu- tion.96 Furthermore, CAFTA’s Chapter 17, which concerns the environment, speciªcally stipulates that “a Party shall not fail to effectively enforce its environmental laws, through a sustained or recurring course of action or inaction, in a manner affecting trade between the Parties, after the date of entry into force of this Agreement” and that, “the Par- ties recognize that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in domestic environmental laws.”97

1. Comparison to NAFTA and the Chapter 11 Threat Many individuals, however, are concerned that CAFTA’s foreign investment rules in Chapter 10 of the treaty are too similar to the North American Free Trade Agreement’s (NAFTA) Chapter 11, which have been used to wreak havoc on labor and environmental laws.98 The terms of NAFTA’s Chapter 11 have been stretched to grant broad rights to foreign investors that do not exist under domestic U.S. law, to attack everything from domestic environmental and health regulations to the routine operations of the court system.99

93 See Background Note: Costa Rica, supra note 8, ECLAC Reports, supra note 15, at 1; CAFTA, supra note 73, art. 10.3, 10.5, annex 10-C. 94 CAFTA, supra note 73, arts. 17.1, 17.2, 17.9, annex I-CR-32–33; see Final Environ- mental Review, supra note 73, at 15-17. 95 CAFTA, supra note 73, annex I-CR-32–33. 96 Id. 97 Id. art. 17.2. 98 See, e.g., Public Citizen, NAFTA Chapter 11: Corporate Cases, http://www.citizen. org/trade/nafta/CH__11/ (last visited Apr. 11, 2006); Sierra Club, CAFTA’s Impact on Central America’s Environment (2005), http://www.sierraclub.org/trade/cafta/cafta_ centralamerica.asp. 99 See Transcript of NOW with Bill Moyers: Trading Democracy: A Bill Moyers’ Special (PBS television broadcast Feb. 1, 2002), available at http://www.pbs.org/now/transcript/tran- script_tdfull.html; Public Citizen, NAFTA Chapter 11 Investor-to-State Cases: Bank- rupting Democracy, at iv (2001), available at www.citizen.org/documents/ACF186.PDF [hereinafter Bankrupting Democracy]. 310 Boston College International & Comparative Law Review [Vol. 29:297

Among other things, Chapter 11 grants investors the right to privately enforce the rights granted under NAFTA.100 And the cases aris- ing out of Chapter 11 have demonstrated that large international businesses are ready and willing to use such a provision to undermine domestic laws; moreover, some have even gone so far as to demand monetary compensation for the enforcement of domestic environmental laws.101 At least twenty-four cases have been ªled under NAFTA’s Chapter 11, in which corporations have collectively demanded over $14.3 billion from governments enforcing such domestic laws.102 NAFTA also has a broad expropriation and compensation provision, which is a virtual “regulatory takings” provision, because it allows a private investor to sue the government for compensation for any action that affects the value of an investor’s property.103 In this respect, NAFTA provides foreign business with a substantial advantage, as compensation for such action has already been repeatedly rejected by the U.S. Supreme Court for domestic businesses.104 In light of the disastrous and unforeseen consequences of Chap- ter 11, the U.S. Congress passed legislation aimed at curbing similar provisions in future treaties.105 In the Trade Act of 2002, Congress attempted to curb the kind of suits generated by NAFTA’s Chapter 11 by requiring that international agreements give foreign investors no

100 North American Free Trade Agreement, ch. 11, Dec. 17, 1992, 32 I.L.M. 605 [hereinafter NAFTA]. 101 See Friends of the Earth, CAFTA and Foreign Investor Lawsuits: A Threat to Environmental Standards (2004), available at http://www.foe.org/camps/intl/green- trade/CAFTAInvestmentFactsheet.pdf. Under NAFTA’s Chapter 11, a Canadian company, Methanex, sued the U.S. government for nearly $1 billion. They alleged that California’s ban of the toxic gasoline additive MTBE hurt the company’s proªts. The U.S. government is also being sued for $50 million by another Canadian company, Glamis, a gold mining company, because California put cleanup and remedial requirements on controversial mining operations that would harm the environment and destroy sacred Native American sites in the state. Id. 102 Public Citizen, CAFTA by the Numbers: What Everyone Needs to Know (2004), available at http://www.citizen.org/documents/CAFTAbyNumbers.pdf. 103 NAFTA, supra note 100, at 641–42; Bankrupting Democracy, supra note 99, at iv. 104 See Tahoe Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 330 (2002); Concrete Pipe & Prods. of Cal. v. Constr. Laborers Pension Trust for S. Cal. 508 U.S. 602, 645 (1993) (stating that the Supreme Court has repeatedly rejected the claim that the mere diminution of property value, however serious, is sufªcient to demon- strate a government taking). 105 Trade Act of 2002, Pub. L. No. 107-210, § 2102 (codiªed at 19 U.S.C. § 3802 (2006)). 2006] Hydroelectric Power Production in Costa Rica 311

“greater substantive rights” than U.S. citizens have under U.S. law and speciªcally mentions standards regarding expropriation.106 Despite this law, CAFTA still maintains a chapter on foreign investment that is strikingly similar to NAFTA’s Chapter 11.107 There are, however, a few notable differences between CAFTA’s Chapter 10 and NAFTA’s Chapter 11.108 For example, CAFTA explicitly stipulates that “except in rare circumstances, nondiscriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment” are not expropriations.109 While the wording of the provision on investor suits is substantially different from NAFTA, nonetheless, it appears to permit the exact same kind of investor suits created by NAFTA regardless.110 And, even if the expropriations clause is denied to them, unhappy investors can ªle suit under the vaguely worded Minimum Standard of Treatment Provi- sion.111 Thus, in essence, under CAFTA, foreign investors can still sue Costa Rica before an international tribunal for any effects on its business interests caused by enforcing its laws and regulations.112 Clearly, then, it is not surprising that there was a widespread outcry against CAFTA during its negotiation from both Costa Rican and United States citizens, many of whom feared NAFTA-like consequences.113 This fear is not without merit, as some foreign investors have already demonstrated that they are ready to take advantage of CAFTA’s Chapter 10.114 The Harken oil drilling case illustrates this threat perfectly.115 In May of 2002, President Abel Pacheco announced a moratorium on oil exploration and open-pit mining in Costa Rica in response to a

106 See 19 U.S.C. at § 3802(b)(3) (2006). 107 Compare CAFTA, supra note 73, art. 10.7, with NAFTA, supra note 98, ch. 11. 108 Compare CAFTA, supra note 73, art. 10.16, annex 10-C, with NAFTA, supra note 100, ch. 11. 109 See CAFTA, supra note 73, annex 10-C(4)(b). 110 See id. art. 10.16; EarthJustice, supra note 20, at 1. 111 See CAFTA, supra note 73, art. 10.5; Friends of the Earth, supra note 101, at 2. 112 See CAFTA, supra note 73, art. 10.16; Friends of the Earth, supra note 101, at 1. 113 See José Eduardo Mora, Activists Pledge to Keep Up Fight Against U.S. Trade Deal, Inside Costa Rica (San José, Costa Rica), Jan. 30, 2004, available at http://insidecostarica.com/ specialreports/costa_rica_trade_activists.htm; CAFTA: A View, supra note 16; John J. Sweeney, A Bad Deal on Free Trade, Boston Globe, Mar. 21, 2005, at A11. 114 See infra notes 111–20. 115 See Mark Engler & Nadia Martinez, Harken v. Costa Rica, AlterNet, Mar. 26, 2004, http://www.alternet.org/module/printversion/18258. 312 Boston College International & Comparative Law Review [Vol. 29:297 widespread mobilization of the country’s environmentalists.116 Harken Energy, a Texas-based oil company with close ties to President George W. Bush, had previously obtained rights to search for crude oil in Costa Rica.117 The company had intended to drill offshore until it failed its environmental impact study two months prior.118 Despite the failed study, Harken tried to sue the Costa Rica government for $12 million in reparations for its aborted operation.119 The Costa Rican government declined to accept an out-of-court settlement, and the company then decided to use international agreements, speciªcally through the World Bank’s International Center for the Settlement of Investment Disputes, to support a new $57 billion claim for the proªts it projected it would have earned if the venture had gone through.120 The Costa Rican government refused to submit to international arbitration or to recognize any decision made by the World Bank body.121 Unable to compel Costa Rica to submit to international arbitration, Harken withdrew its claim a few days later and then tried again to reach an out-of- court settlement.122 Those talks fell through, though it has been specu- lated that Harken will try once more to force international arbitration.123 Although Costa Rica successfully avoided arbitration with Har- ken, if CAFTA had been in force then, the result would likely have been quite different.124 So what does CAFTA mean for Costa Rica’s waterways and the hydroelectric plants exploiting them? First, it means that, like Harken, companies that are impeded by Costa Rica’s environmental laws are more likely to sue the Costa Rican government under Chapter 10 for any investment they had already made in anticipation of constructing a plant or dam, or even, as Harken did, to recoup expected proªts.125 Regardless of the merits of such cases, their existence alone is likely to have a chilling effect on the creation and enforcement of environmental laws protecting those waterways; Costa Rica, as a developing

116 Id. 117 Id. 118 Id. 119 Id. 120 Id. 121 Engler & Martinez, supra note 115. 122 Id. 123 Id. 124 See id.; CAFTA, supra note 73, art. 10.5, 10.7, 10.16. 125 See Engler & Martinez, supra note 115; see, e.g., Friends of the Earth, supra note 101, at 1–2 (noting examples of corporations that took governments to court using similar provisions in NAFTA’s Chapter 11). 2006] Hydroelectric Power Production in Costa Rica 313

nation, cannot afford to effectively litigate every potential case nor can it afford to pay out a large verdict if it loses.126 Moreover, while CAFTA does contain provisions permitting foreign investors to sue on their own behalf, citizens of Costa Rica (or any Central American party) may only submit complaints to the Secretariat alleging that the government has failed to enforce its environmental laws, though there are no clear mandates to ensure that environmental laws are enforced, nor does it provide citizens access to the court system if that avenue fails.127 And even if a situation arose in which Costa Rica was found to have violated Chapter 17 by not enforcing its environmental laws or the environmental provisions in CAFTA, CAFTA’s enforcement provisions for environmental laws are weak and ineffective.128 For example, while foreign investors can seek unlimited damages in their suits under CAFTA, ªnes against the government for failing to enforce its environmental laws are capped at $15 million annually.129

III. Analysis Before discussing Costa Rica’s options to protect its waterways if CAFTA is passed, it is worth reviewing one option that seems attractive at ªrst glance but does not appear viable on closer analysis.130

A. Repealing Law 7200: A Non-Option for Costa Rica One option that initially appears attractive is for Costa Rica to repeal Law 7200, thereby forbidding all private companies from participating in hydroelectric power production.131 This may, however, constitute a government taking prohibited by Article 45, because although the private owners do not own the rivers on which their plants operate, this would effectively force them to relinquish any investment they made in construction and maintenance of the plant and force them off that property.132

126 See Engler & Martinez, supra note 115; EarthJustice, supra note 20. 127 See CAFTA, supra note 73, art. 17.7, 17.8. 128 See Sierra Club, supra note 98. See generally CAFTA, supra note 73, art. 17.1, annex 17.9. 129 CAFTA, supra note 73, art. 20.17. 130 See infra III.A. 131 See generally Law 7200, supra note 47. 132 See Ley de Aguas, supra note 22, arts. 1, 2. U.S. Dep’t of State, Costa Rica: 2005 Investment Climate Statement (2005), available at http://www.state.gov/e/eb/ifd/ 2005/42003.htm (“Article 45 of the Constitution of Costa Rica stipulates that no property

314 Boston College International & Comparative Law Review [Vol. 29:297

The government’s ability to expropriate property became much more difªcult after passage of the 1995 Law 7495, which stipulates that expropriations can take place only after full and prior payment is made to the affected property owner.133 This restriction is signiªcant because the Costa Rican government most likely cannot afford to compensate all of the current private hydroelectric companies if a court determines that repeal of Law 7200 constitutes a taking.134

B. Possible Options to Minimize the Environmental Ramiªcations Threatened by CAFTA In order to minimize CAFTA’s potential negative consequences for its waterways and hydroelectric power production, there are a number of things Costa Rica can and should do.135 The ªrst, most obvious solution would be to refuse to ratify the treaty so that it does not take effect. After all, if Costa Rica ratiªes CAFTA and then is sued by a foreign investor who claims ªnancial harm caused by the enforcement of Costa Rica’s environmental laws, it cannot then argue that its domestic environmental laws are superior to CAFTA’s Chapter 10 foreign investor provisions, because Article Seven of Costa Rica’s Constitution states that all ratiªed international treaties are superior to national laws. 136 By refusing to ratify, Costa Rica can ensure the enforceability of its environmental laws to foreign investors.137 If Costa Rica does decide to ratify CAFTA, though, there are other ways of protecting its waterways.138 First, the Costa Rican government must start effectively enforcing its environmental laws, which includes aggressively prosecuting known violators.139 One highly pub- licized case of a power plant violating the environmental laws was the aforementioned Peñas Blancas hydroelectric plant disaster, in which

can be expropriated from a Costa Rican or foreigner without prior payment and demon- strable proof of public interest.”). 133 U.S. Dep’t of State, supra note 132. Also, Article 45 of the Costa Rican Constitu- tion grants equal rights and protection to private property, whether it is owned by nation- als or foreigners. Id. 134 See generally Engler & Martinez, supra note 115 (stating that Costa Rica’s annual GDP is around $17 billion, and the government’s entire annual budget is only around $5 billion). 135 See infra III.B. 136 Gelardi, supra note 87. 137 See id. 138 See infra notes 135–81 and accompanying text. 139 See Interview with Carlos Muñoz Brenes, supra note 89. 2006] Hydroelectric Power Production in Costa Rica 315

the dam dumped an immense amount of sedimentation into the Peñas Blancas and San Carlos rivers in 2003, killing thousands of ªsh and other wildlife.140 The Judicial Investigation Organization (O.I.J.) was ordered by the Ministry of Environment and Energy (MINAE)141 to investigate the cause of the contamination.142 It found ICE responsible and ordered it to pay reparations for the contamination and ecological damage incurred.143 ICE accepted responsibility for the harm caused and offered to pay one million dollars in reparations.144 While this particular offense was prosecuted and ICE was eventually honest enough to accept responsibility for its actions, many other dams, both private and public, are allowed to continue illegally con- taminating Costa Rica’s rivers because the government is not holding them accountable for these crimes.145 If, after ratifying CAFTA, Costa Rica prosecutes violations by dams owned by foreign investors without concurrently increasing its prosecutions of locally owned violators, foreign investors will likely attempt to use Chapter 10 to annul any judgment against them, arguing that it was discriminatory.146 Those companies certainly have the ªnancial resources to ªght that legal battle as long as possible in order to try to make the government back down.147 Also, before ratifying CAFTA, Costa Rica should pass legislation restricting privatization.148 An example of such legislation would be a law amending Law 7200 that would limit privatization to its current capacity, such that even if ICE continues to construct more public facilities, no more private facilities would be allowed.149 Such a law

140 See Monteverde Group, supra note 79. 141 Ministerio de Ambiente y Energía. 142 Carlos Hernández, Muerte de Peces Indigna a Vecinos, La Nación (San José, Costa Rica), Nov. 3, 2003, available at http://www.nacion.com/ln_ee/2003/noviembre/03/pais5. html [hereinafter Muerte de Peces]; Carlos Hernández, Investigan Masiva Muerte de Peces, La Nación (San José, Costa Rica), Apr. 26, 2004, available at http://www.nacion.com/ ln_ee/2004/abril/26/pais5.html [hereinafter Investigan Masiva]. 143 Muerte de Peces, supra note 142; Investigan Masiva, supra note 142. 144 Investigan Masiva, supra note 142; Ríos Amenezados, supra note 75. 145 Álvaro Sánchez, Miles de Peces Asªxiados, Al Día (San José, Costa Rica), Apr. 27, 2004, available at http://www.aldia.co.cr/ad_ee/2004/abril/27/nacionales10.html; Ríos Amenezados, supra note 75 (noting that over the last three years there have been numerous documented cases of river contamination, only some of which have been investigated and prosecuted). 146 See generally CAFTA, supra note 73, art. 10.3; Friends of the Earth, supra note 101, at 1–2. 147 See generally Engler & Martinez, supra note 115; Friends of the Earth, supra note 101, at 1–2. 148 See generally Law 7200, supra note 47. 149 See id. 316 Boston College International & Comparative Law Review [Vol. 29:297 would restrict the percentage of total domestic electricity production that private facilities may permissible produce beyond what Law 7200 currently allows.150 This law, however, would have to be passed before CAFTA is ratiªed, because CAFTA’s Chapter 10 forbids national companies to be treated more favorably than foreign investors.151 Conse- quently, since there are only twenty-eight private hydroelectric companies, only a few of which are controlled by foreign investors, such a restriction would almost certainly be successfully challenged if it were passed after CAFTA was ratiªed.152 Another positive reform that Costa Rica should enact prior to CAFTA’s ratiªcation is legislation that closes the gaps in its current law that permit over-exploitation of watersheds.153 A law that restricts the number of plants, both public and private, that are permitted to exploit a watershed could easily accomplish this goal.154 Costa Rica must pass such a law before CAFTA is ratiªed and foreign investors begin invest- ing in new plants that crowd these watersheds.155 If it does not act promptly, it risks environmental collapse of these watersheds.156 Fur- ther, if Costa Rica waits until after ratiªcation to pass this type of legislation, foreign investors can be expected to sue Costa Rica under Chap- ter 10 in much the same way that companies have sued Canada, the United States, and Mexico under NAFTA’s Chapter 11 for post- ratiªcation environmental laws that hinder their business or proªts.157 It is also important to note that CAFTA recognizes that Costa Rica retains full rights to decide the degree of privatization of its state energy monopoly.158 Therefore, if Costa Rica ratiªes CAFTA, even if it chooses not to pass preemptive legislation further restricting privatization, it should not pass further legislation expanding privatization of energy production.159 Greater privatization will mean more attempts by for-

150 See id. 151 CAFTA, supra note 73, art. 10.3. 152 Id.; Monitoreo de Represas, supra note 81, at 11. 153 See generally Anderson, supra note 1, at 3; Descontrol, supra note 72; Ríos Amenezados, supra note 75. 154 See generally Anderson, supra note 1, at 3; Descontrol, supra note 72; Ríos Amenezados, supra note 75. 155 See CAFTA, supra note 73, art. 10.3, 10.5; Aguirre, supra note 14, at 12 (noting that multinational organizations are aggressively pushing to get full access to Central America’s energy sectors through various international agreements). 156 Ríos Amenezados, supra note 75. 157 CAFTA, supra note 73, art. 10.3, 10.5; Friends of the Earth, supra note 101, at 1–2. 158 See CAFTA, supra note 73, annex I-CR-32–33. 159 See generally ECLAC Reports, supra note 15, at 1–3 (pointing out that privatization in other parts of Central America has created signiªcant problems). 2006] Hydroelectric Power Production in Costa Rica 317

eign investors to participate in hydroelectric power production and more suits against the government by disgruntled foreign investors.160 In order to minimize such suits, Costa Rica must, at a minimum, maintain the status quo on legal restrictions of its energy monopoly.161 Another option for Costa Rica is to create legal incentives to encourage private investors, both foreign and domestic, to seek out other forms of electricity production than hydropower.162 For example, Costa Rica is Latin America’s largest producer of wind power, although most of its wind potential remains untapped.163 So Costa Rica could try to curb over-exploitation of its rivers by offering incentives for private companies to invest in the development of wind power instead.164 In fact, Costa Rica has already experienced a positive response from private individuals and companies to similar government incentives.165 One example that the government can use as a model is a program already in place called Pago de Servicios Ambientales (PSA).166 Since 1996, the Costa Rican government has offered PSAs, through the regulatory body Fondo Nacional de Financimiento Forestal de Costa Rica (FONAFIFO) to compensate private landowners for, among other things, both conservation and reforestation of their property.167 The success of these subsidies is surprising given that they are fairly modest: roughly $64 per hectare of private property con- served each year, or about ¢32.000.168 Similarly, the government could offer a minimal subsidy or other incentive to private companies that choose to invest in the development of wind power instead of hydropower.169 The government, however, should immediately review its legislation regulating wind power to make sure that, should private

160 See generally Engler, supra note 115; Friends of the Earth, supra note 101, at 1–2. 161 See generally Engler, supra note 115; Friends of the Earth, supra note 101, at 1–2. 162 Fondo Nacional de Financimiento Forestal de Costa Rica, Servicos Ambientales, http://www.fonaªfo.com/paginas_espanol/servicios_ambientales/servicios_ambientales.h tm [hereinafter FONAFIFO] (last visited Apr. 11, 2006). 163 Anderson, supra note 1, at 3. 164 See generally Anderson, supra note 1, at 3; FONAFIFO, supra note 162. 165 FONAFIFO, supra note 162. 166 Id. The acroynm stands for Payment for Environmental Services. See id. 167 See FONAFIFO, supra note 162. 168 Email from Carlos Muños Brenes, Director, Monteverde Conservation League, to author ( Jan. 19, 2006, 14:06:59 EST) (on ªle with author). 169 See FONAFIFO, supra note 162; Anderson, supra note 1, at 3; but see Karl Royce, What Chance Latin America?, Windpower Monthly, May 2002, available at http://www. windpower-monthly.com/may02/leader.htm (arguing that Costa Rica will never have a windpower industry because of its small economy). 318 Boston College International & Comparative Law Review [Vol. 29:297 wind power operations become a successful alternative to hydropower, the industry is not permitted to get out of control or destroy the surrounding environment.170

C. Potential Options to Minimize the Threat of Foreign Investor Suits Threatened by CAFTA’s Chapter 10 Finally, if Costa Rica does ratify CAFTA and ªnds itself sued by foreign investors for enforcing its environmental laws, its Constitution provides a potential solution.171 As mentioned before, Articles 46 and 50 of Costa Rica’s Constitution guarantee its citizens a right to a healthy and ecologically balanced environment, and the government is obligated to enforce that guarantee.172 This is clearly in direct conºict with any interpretation of CAFTA that undermines its environmental laws to the beneªt of foreign investors.173 Before Costa Rica’s Legislative Assembly can pass any treaty into law, the Supreme Court of Justice, which handles all constitutional legal matters, must be consulted regarding the compatibility of the treaty with the country’s Constitution.174 Therefore, Costa Rica could argue that CAFTA is constitutionally compatible, otherwise it would not have passed the Supreme Court of Justice, and as such the vaguer provisions of Chap- ter 10 most likely to be relied on by foreign investors cannot be interpreted contrary to Costa Rica’s constitutional protections.175 Also, by arguing that any conºict of interpretations favors Costa Rica’s Consti- tution, Costa Rica can justify the enforcement of its environmental laws over any apparent conºict with CAFTA, as their enforcement is clearly necessary to fulªll its obligation to provide its citizens with an ecologically balanced environment under Article 46.176

170 See Culture Change, The Most Frequently Asked Questions About Wind Energy, http://www.culturechange.org/wind.htm (last visited Apr. 11, 2006). Some of the negative environmental impacts of windpower include erosion, bird kills, noise, and the need for an open space, which in Costa Rica could create clear cutting of forest land. See id. See generally Anderson, supra note 1, at 3. 171 See generally Constitución, supra note 23. 172 See id. 173 Compare Constitución, supra note 23, with CAFTA, supra note 73, art. 10.3, 10.5, 10.7; see also Friends of the Earth, supra note 101, at 1–2. 174 See International Humanitarian Law National Implementation, General Comment, Costa Rica, http://www.icrc.org/ihl-nat.nsf/0/430cd0a214d63d40c1256b190033d202?Open- Document (last visited Apr. 11, 2006) [hereinafter IHLNI]. 175 See generally CAFTA, supra note 73, art. 10.3, 10.5, 10.7; IHLNI, supra note 174. 176 See generally Constitución, supra note 23. 2006] Hydroelectric Power Production in Costa Rica 319

Costa Rica could also look for support to its neighbor Nicaragua, which faced this exact same problem when it considered ratifying CAFTA.177 Nicaragua determined that a number of CAFTA’s provisions were in direct conºict with its Constitution.178 Nicaragua holds its own Constitution supreme over international law, and it decided that it would almost certainly have to alter its Constitution to comply with CAFTA before ratiªcation if the conºicting CAFTA provisions were to be enforceable in Nicaragua.179 Similarly, Costa Rica could argue that the fact that it has chosen not to alter its Constitution indicates that any ambiguous provisions must be interpreted as complying with its Constitution.180 Finally, Costa Rica can turn to CAFTA itself as a source of support.181 As aforementioned, both Chapter 17 and Chapter 10 have provisions respecting environmental laws.182 Costa Rica can utilize these provisions to counter any Chapter 10 foreign investor suit trying to undermine its environmental laws.183 Chapter 17 is the most helpful provision for Costa Rica in this respect because it states that it is inappropriate to encourage trade or investment by weakening domestic environmental laws.184 Costa Rica should also utilize Chapter 10, Article 11, which places priority of measures taken “otherwise consistent” with the chapter to protect environmental issues over all other provisions in the chapter.185 Whichever provisions Costa Rica does decide to use in its defense, it should strongly assert its rights under those provisions to assure that whatever value those provisions have to protect the environment is not permitted to be nulliªed through litigation as the environmental provisions in NAFTA have been.186

177 See generally Jeannette Chávez Gómez et al., CAFTA Constitutional Analysis (2004), available at http://www.citizenstrade.org/pdf/quixote_nicacaftachallenge_07012004. pdf. 178 See id. 179 See id. 180 See id. 181 See generally CAFTA, supra note 73, art. 17.1-Annex 17.9; cf. Sierra Club, supra note 98 (arguing that CAFTA’s Chapter 17 environmental provisions are so weak that they provide only minimal protection). 182 See CAFTA, supra note 73, arts. 10.9, 10.11, 17.1, 17.2, 17.4. 183 Cf. Sierra Club, supra note 98. See generally CAFTA, supra note 73, arts. 10.9, 10.11, 17.1, 17.2, 17.4. 184 See generally CAFTA, supra note 73, art. 17.2. 185 See id. art. 10.11. 186 See also Bankrupting Democracy, supra note 99, at iv (noting numerous cases where investor rights took precedence over environmental protection). See generally CAFTA, supra note 73, arts. 10.9, 10.11, 17.1, 17.2, 17.4; NAFTA, supra note 100, at 640, 642. 320 Boston College International & Comparative Law Review [Vol. 29:297

Conclusion Costa Rica’s waterways are arguably its most valuable resource.187 Although the beneªt and burdens analysis clearly tips in favor of developing its hydroelectric resources, Costa Rica must understand that these waterways also serve a number of other essential functions, including sustaining the rainforests that now bring the country more revenue in eco-tourism than do its two traditional exports, bananas or coffee.188 Costa Rica has much stronger environmental laws protecting its waterways and regulating hydroelectric power than many of its neighbors.189 And Costa Rica’s Constitution, through Articles 46 and 50, promises much in the way of a healthy environment.190 These laws are not, however, sufªcient to prevent private investors from exploiting Costa Rica’s waterways.191 CAFTA promises to wreak further havoc on Costa Rica’s unique resources through the suppression of its environmental laws.192 In order to minimize the anticipated negative consequences on its environment and environmental laws, Costa Rica must engage in an aggressive campaign to protect its waterways.193 It would be unwise for Costa Rica to completely eliminate privatization because such a measure would, most likely and unfortunately, be considered an expropriation of currently existing private plants.194 It can and should, however, either further restrict private hydroelectric power production or, at the very least, pass legislation restricting it to its status quo.195 The Costa Rican legislature must also immediately address the loophole in its current environmental law that permits over-exploitation of its watersheds.196 In addition, it should create minimal legal incentives for private investors to invest in other underutilized energy resources like wind power.197 Moreover, Costa Rica must start to aggres-

187 Anderson, supra note 1, at 3. 188 Rob Rachowiecki, Lonely Planet: Costa Rica 25 (2002). In fact, today over one million ecotourists visit Costa Rica each year. Id. 189 Sierra Club, supra note 98. 190 See Constitución, supra note 23. 191 See Sierra Club, supra note 98 (noting that Costa Rica is often hailed as a country with strong environmental law, but that even here their environmental laws are either conºicting with one another or there is no ªnancial support for new agencies or cooperative measures). 192 See EarthJustice, supra note 20. 193 See infra notes 192–97. 194 See supra notes 131, 135, 145. 195 See ECLAC Reports, supra note 15. 196 See Anderson, supra note 1, at 3. 197 See id. 2006] Hydroelectric Power Production in Costa Rica 321

sively prosecute known domestic violators of its current environmental laws to prevent foreign investors from claiming discrimination in lawsuits should CAFTA be ratiªed.198 Finally, in the event CAFTA is ratiªed and Costa Rica ªnds itself locked in litigation with a foreign investor over the enforcement of its environmental laws, Costa Rica should argue that its Constitution is consistent with CAFTA, such that any asserted conºict demands an interpretation favoring the environmentally protective mandates of Articles 50 and 46.199 CAFTA does not have to mean the death of Costa Rica’s precious waterways and surrounding environments, but in order to avoid that fate, Costa Rica’s government must act proactively to anticipate and overcome opportunistic foreign investors.

198 See Interview with Carlos Muñoz Brenes, supra note 89. See generally CAFTA, supra note 73, art. 10.3. 199 See Constitución, supra note 23; Chávez Gómez, supra note 177.

INSERTED BLANK PAGE

INTERNATIONAL SPAM REGULATION & ENFORCEMENT: RECOMMENDATIONS FOLLOWING THE WORLD SUMMIT ON THE INFORMATION SOCIETY

Meyer Potashman*

Abstract: Unsolicited bulk e-mail, or “spam,” is often called the scourge of the information age. Because of the cross-border nature of the Inter- net, both governments and the private sector are facing many challenges in combating cross-border spam. In recent years, through the World Summit on the Information Society (WSIS), the international community has committed itself to ªght spam on a global level through increased cooperation and enforcement of spam laws. This Note evalu- ates many of the issues involved in preventing cross-border spam, discusses the latest methods of enforcement in both the private and public sectors, and recommends an approach to the problem in light of the commitments made at WSIS.

Introduction Unsolicited bulk e-mail, or “spam,” is widely considered to be the scourge of the information age.1 Millions of unwanted e-mail messages sent every day affect virtually everyone with an e-mail account.2 These spam messages cost Internet Service Providers (ISPs) and Internet users millions of dollars due to lost productivity and technical resources.3 To some extent, the rise of spam has slowed the spread of the Internet

* Meyer Potashman is a Production Editor of the Boston College International & Com- parative Law Review. 1 U.N. Info. & Commc’n Techs. Task Force, Global Forum on Internet Govern- ance—Informal Summary 11 (2004), available at http://www.unicttaskforce.org/perl/ documents.pl?do=download;id=565. 2 See, e.g., Robert Horton, Int’l Telecomms. Union, ITU WSIS Thematic Meeting on Countering Spam, Chairman’s Report ¶ 11 (2004), available at http://www.itu.int/ osg/spu/spam/chairman-report.pdf; see also Claudia Sarrocco, ITU WSIS Thematic Meeting on Countering SPAM: Spam in the Information Society: Building Frame- works for international Cooperation 4 (2004), available at http://www.itu.int/osg/ spu/spam/contributions/Background%20Paper_Building%20frameworks%20for%20Intl %20Cooperation.pdf (noting that spam represents up to 76% of all e-mail trafªc). 3 Sarrocco, supra note 2, at 4.

323 324 Boston College International & Comparative Law Review [Vol. 29:323 and related technologies in the developing world as well.4 The public and private sectors have proposed many technical and legal approaches to combating spam.5 One key obstacle in this ªght, however, is the political boundaries between independent states.6 The Internet, of course, has no boundaries, so spam can easily travel from one country to the next, making it difªcult to track down its senders.7 In recent years, several countries have passed laws criminalizing spam, but without international cooperation, it is difªcult to enforce these laws against foreign spammers.8 The United Nations has convened a two-part summit meeting to address this and other Internet-related issues.9 Known as the World Summit on the Information Society (WSIS), the summit ªrst convened in Geneva in 2003 and met again in November 2005 in Tunis.10 At the various summit meetings, the international community committed itself to the ªght against spam.11 This Note will explore the anti-spam options that the international community discussed in these forums, as well as some steps for continuing the ªght against spam in the future. Part I provides some background to the spam problem,

4 See Contribution to the ITU WSIS Thematic Meeting on Countering Spam From Kenya, Sudan, Tanzania And Zambia (2004), available at http://www.itu.int/osg/spu/ spam/contributions/Developing%20countries_contribution.pdf [hereinafter Developing Nations Contribution]. 5 See generally Horton, supra note 2, ¶¶ 16–34. 6 See John Magee, The Law Regulating Unsolicited Commercial E-Mail: An International Per- spective, 19 Santa Clara Computer & High Tech. L.J. 333, 378 (2003) (“The jurisdictional problems created by the proliferation of transborder unsolicited e-mail communications represent what may prove to be an insurmountable hurdle.”). 7 See Sarrocco, supra note 2, at 17. 8 For a summary of international spam laws, see David Sorkin, Spam Laws, http:// www.spamlaws.com (last visited Mar. 7, 2006). For a summary of the jurisdictional challenges in enforcing spam, see Philippe Gérard, Int’l Telecomms. Union, ITU WSIS Thematic Meeting on Countering Spam: Multilateral and Bilateral Cooperation to Combat Spam 10–12 (2004), available at http://www.itu.int/osg/spu/spam/contributions/Background%20Paper_Multilateral%20Bilateral%20Coop.pdf. 9 See Wendy M. Grossman, Nations Plan for Net’s Future, Wired News, Oct. 11, 2004, http://www.wired.com/news/technology/0,1282,65254,00.html. 10 Hans Klein, Understanding WSIS: An Institutional Analysis of the UN World Summit on the Information Society 3 (2003), available at http://www.ip3.gatech.edu/ images/Klein_WSIS.pdf. 11 World Summit on the Info. Society, Declaration of Principles (WSIS Doc. No. WSIS-03/GENEVA/DOC/0004) (2003) ¶ 37, available at http://www.itu.int/dms_ pub/itu-s/md/03/wsis/doc/S03-WSIS-DOC-0004!!PDF-E.pdf [hereinafter Declaration of Principles] (noting the Geneva summit’s commitment to address the spam issue); World Summit on the Information Society, Tunis Agenda for the Information Society (WSIS Doc. No. WSIS-05/TUNIS/DOC/6 (Rev. 1)-E) (2005) ¶¶ 41–42, available at http://www.itu.int/wsis/docs2/tunis/off/6rev1.html [hereinafter Tunis Agenda]. 2006] International Spam Regulation & Enforcement 325

attempted technical and legal solutions, and the current state of international spam cooperation. Part II discusses the various issues involved in deªning spam, global “Internet governance,” the crafting of spam laws, and the compromises inherent in international solutions to the problem. Finally, Part III suggests some recommendations on how to put in action the goals of WSIS by structuring a ºexible yet effective international anti-spam regime.

I. Background & History During the relatively short history of the Internet, spam has grown into a major problem, prompting action by many different parties and institutions around the world.12

A. Spam’s Harmful Effects Though people deªne spam in several different ways, in general, people consider many kinds of unwanted e-mail to be spam.13 Spam ranges from unsolicited yet legitimate sales pitches, to pitches for objec- tionable yet possibly legitimate services such as pornography and other sexually-explicit materials.14 Spam also encompasses a wide range of advertisements for pharmaceuticals of questionable origin, mortgages, pyramid schemes, and other goods and services, many of which are purely fraudulent.15 Some of the more damaging types of spam are those that include computer viruses and identity-theft schemes, which attempt to induce recipients to reveal sensitive personal information.16 The spam problem has increased dramatically throughout the world in recent years.17 Spam is estimated to account for around 76% of all e-mail trafªc.18 It is estimated to cost Internet users worldwide around $10 billion per year, which excludes productivity and direct ªnancial losses caused by viruses and identity theft.19

12 See Am. Civil Liberties Union v. Reno, 929 F. Supp. 824, 830–34 (E.D. Pa. 1996) (providing an overview of the history of the Internet); Gérard, supra note 8, at 3–6. 13 See David E. Sorkin, Technical and Legal Approaches to Unsolicited Electronic Mail, 35 U.S.F. L. Rev. 325, 327–35 (2001). 14 Id. at 336; Magee, supra note 6, at 339. 15 For an overview of types of spam, see VirusList.com, Types of Spam, http://www.viruslist.com/en/spam/info?chapter=153350533 (last visited Mar. 7, 2006). 16 See Sarrocco, supra note 2, at 9–10. 17 See Gérard, supra note 8, at 4. 18 Sarrocco, supra note 2, at 4. 19 Id. 326 Boston College International & Comparative Law Review [Vol. 29:323

The problem with spam is that it is proªtable, largely because its costs are shifted from the spammers to their recipients.20 Unlike direct postal mail, where the sender pays for each message, the cost to the sender of each e-mail is negligible.21 Thus, spammers can market their wares to millions of people with minimal cost to them.22 They only need to convert a small fraction of their messages into sales to reap a signiªcant proªt.23 Their recipients and ISPs, however, bear the costs in several ways.24 Users lose time, and sometimes access fees, “sifting through, identifying, and deleting the messages,” as well as in attempting to unsubscribe from spam lists or updating their spam ªlters.25 Similarly, ISPs suffer as their servers and network capacity become clogged with spam, forcing them to expand their resources to account for the spam on their networks.26 An increase in spam on an ISP’s network also affects that ISP’s goodwill and could result in customer turn- over as customers abandon their spam-clogged e-mail accounts for alternative addresses with other providers.27 These costs ultimately are shifted to consumers in higher access fees.28 In addition to the ªnancial costs of spam, the plethora of sexually explicit spam raises concerns for parents who do not want their children exposed to such messages.29 Spam has also had a particularly harsh effect on developing economies, which are still in the process of building their Internet and communications infrastructure.30 In sub-Saharan Africa, for example, Internet access is often satellite-based and very expensive.31 As this expensive bandwidth is clogged with spam, it becomes difªcult for ISPs to justify continuing their services.32 To compound this problem, some

20 Magee, supra note 6, at 338; Ho Khee Yoke & Lawrence Tan, Int’l Telecomms. Un- ion, ITU WSIS Thematic Meeting on Countering Spam: Curbing Spam via Technical Measures: An Overview 3 (2004), available at http://www.itu.int/osg/spu/spam/contributions/Background%20Paper_Curbing%20Spam%20Via%20Technical%20Measures.pdf. 21 Magee, supra note 6, at 338. 22 Yoke & Tan, supra note 20, at 4. 23 See id. 24 See generally Magee, supra note 6, at 338–39 (explaining how costs are shifted away from spammers). 25 Id. at 338. 26 See id. at 339. 27 See id. (noting that spam may cause ISPs to lose business and suffer reputation damage “due to continued clogged bandwidth”). 28 Id. 29 See id. 30 See Developing Nations Contribution, supra note 4. 31 Id. 32 Id. 2006] International Spam Regulation & Enforcement 327

users would rather not pay for expensive Internet services at all if the bulk of what they pay for is wasted on spam.33

B. The Most Damaging Types of Spam The most damaging spam, which causes considerable harm to the world’s economies, consists of those messages that spread viruses, frauds, and scams.34 These messages turn spam from a mere annoying marketing method into a more damaging tool to invade recipients’ privacy and to separate them from their money.35 Many messages are sent through computer viruses, such as the infamous “Melissa” virus, that automatically resend messages to people on a recipient’s contact list.36 Sometimes viruses turn computers into “zombies,” enabling a spammer to take advantage of an innocent user’s Internet connection and helping the spammer disguise his or her identity.37 It is estimated that “zombies” are responsible for a high percentage of all spam sent.38 Age- old scams, such as the “Nigeria Letter” e-mail, that purport to offer large sums of money to recipients in exchange for sending an initial deposit are also very prevalent forms of spam.39 Another common spam threat is known as “phishing.”40 This is an identity theft method through which spammers attempt to obtain user’s passwords by sending fraudulent e-mails purporting to be from ªnancial service providers.41 These e-mails generally misdirect recipients to a false website where users are prompted to reveal sensitive information that the senders can then use to liquidate the recipient’s assets.42

33 Id. 34 See Sarrocco, supra note 2, at 9–10. 35 See id. at 9. 36 See Magee, supra note 6, at 339–40; Yoke & Tan, supra note 20, at 3. 37 Yoke & Tan, supra note 20, at 5. 38 Grant Gross, Is CAN-SPAM Working?: One Year After It Went into Effect, Many Say the Na- tion’s Antispam Law Is Ineffective, PC World.com, Dec. 28, 2004, http://www.pcworld.com/ news/article/0,aid,119058,00.asp (stating that over a three week period in late 2004, a study found that 69% of all spam sent was sent through “zombie” computers). 39 Sarrocco, supra note 2, at 9. 40 See id. at 9–10. See generally Dave Brunswick, Tumbleweed Commc’ns Anti- Phishing Working Group, The Rise of Phishing (2004), available at http://www.itu.int/ osg/spu/spam/presentations/BRUNSWICK_Session%202.pdf. 41 Sarrocco, supra note 2, at 9–10. 42 Id. 328 Boston College International & Comparative Law Review [Vol. 29:323

C. Spam as an International Issue The spam problem has many international dimensions.43 Fun- damentally, the Internet does not have any national boundaries.44 At its core, it is a mechanism for connecting multiple computers and is intended as a loose and virtually ungovernable network.45 The only component of the Internet that arguably corresponds to states is what is known as the Country Code Top-Level Domain (ccTLD) system.46 This is the system that assigns the last section of Internet addresses to names corresponding to countries (such as www.bbc.co.uk for the UK, or www.amazon.fr for Amazon’s French site).47 It is generally impossible to determine a spam’s originating country based on its sender’s e-mail address.48 This creates a system in which any national spam laws are difªcult to enforce.49 Even if plaintiffs and prosecutors can locate a spammer or his service provider, they often lack jurisdiction to bring these defendants to court.50 Fur- ther, even if a country would be willing to extend jurisdiction beyond its national boundaries, it can be very difªcult to enforce a judgment against such a defendant.51

D. Technical Approaches to Combating Spam As the spam problem continues to grow, many organizations have developed anti-spam technologies.52 The technical problems with dealing with spam are largely related to the minimal security built into e-

43 See generally id. 44 Id. at 17. 45 See Vinton G. Cerf, “First, Do No Harm,” in Internet Governance: A Grand Col- laboration 13, 14 (Don MacLean ed., 2004), available at http://www.unicttaskforce.org/ perl/documents.pl?do=download;id=778 [hereinafter Internet Governance] (noting that “the Internet has evolved openly, freely,” and without government intrusion). 46 See generally Michael Geist, Governments and Country-Code Top Level Domains: A Global Survey, in Internet Governance, supra note 45, at 282 (discussing the role of national governments in managing their ccTLDs). 47 Id. 48 See Sarrocco, supra note 2, at 17 (noting that many e-mail addresses have no geo- graphic identiªer and even when messages are sent from an address with a ccTLD, that does not provide any indication about the location from which the message was sent). 49 Id. 49 Id. 50 Id. 51 Id. 52 See also Sorkin, supra note 13, at 344–51. See generally Yoke & Tan, supra note 20. 2006] International Spam Regulation & Enforcement 329

mail technologies when they were ªrst developed.53 As the Internet has expanded and questionable conduct such as spam has grown with it, these security ºaws have enabled the spam problem to persist.54 The technical solutions being implemented are largely built to plug these security holes.55 Spam-ªghting technologies can be roughly grouped into three forms.56 First and perhaps most important are those efforts to combat spam at the originating e-mail server in order to prevent messages from ever being sent.57 Second, there are systems that reside at the ISP of the e-mail recipient that try to stop the messages.58 Lastly there are systems controlled by Internet users themselves that help block spam before they reach the user.59

1. Blocking Spam From the Originating Server To stop mail at its origin point, ISPs must attempt to add layers of security to their e-mail servers.60 The protocol, or technology standard, used to send most e-mails is known as SMTP, or Simple Mail Transfer Protocol.61 SMTP servers, which are responsible for sending most e- mail, do not need to be authenticated in any way.62 As a result, spammers can often take advantage of available open servers, or “open re- lays,” and route their mail through these unsecured servers.63 These spammers take advantage of other ISPs’ servers without authorization, and because there is no authentication, the spammers can disguise their identities.64 There are several solutions to this problem.65 For example, if every ISP required some kind of outgoing authentication,

53 See, e.g., Sarrocco, supra note 2, at 5 (“the basic Internet architecture . . . is intrinsi- cally insecure, allowing spammers to operate anonymously and to evade law enforcement”). 54 Id. 55 Yoke & Tan, supra note 20, at 6 (noting that closing security loopholes can help resolve the spam problem). 56 See id. at 4–5. 57 Id. 58 Id. 59 Id. 60 Yoke & Tan, supra note 20, at 5–6. 61 For a more complete deªnition of the SMTP protocol, see Deªnition of SMTP, We- bopedia, http://www.webopedia.com/TERM/S/SMTP.html (last visited Feb. 12, 2006). 62 See Sarrocco, supra note 2, at 5. 63 See Sorkin, supra note 13, at 339. 64 See Sarrocco, supra note 2, at 13. 65 See, e.g., Yoke & Tan, supra note 20, at 5–7. 330 Boston College International & Comparative Law Review [Vol. 29:323 then ISPs would be able to track every spam message to a particular account and deactivate the account before more spam is sent.66 Another technical solution is to block a network communications port on computers and networks known as “Port 25.”67 Today, over 40% of all spam is sent, often via Port 25, by unwitting users whose computers have become spamming “zombies,” after being infected with a virus.68 If ISPs block this port from their networks, then they can limit the amount of spam being sent in this manner.69 Third, ISPs can limit the number of outgoing e-mails that can be sent by any one user.70 This would permit users to send e-mails to a limited list of recipients, while stopping spam messages from being sent to thousands of people at a time.71 Lastly, many organizations have been developing authentication mechanisms that ensure that the name and e-mail address on an e- mail message indeed corresponds to the correct user.72 Outgoing ISPs can conªrm that e-mails are indeed sent from their customers and are not fraudulent, so incoming ISPs can then route them efªciently.73 This, however, raises several problems.74 These authentication systems have not been standardized, so there is no common way for users to authenticate themselves or for recipients to conªrm that authentication.75 The other problem is that legitimate users, who have not, for whatever reason, been able to authenticate their e-mail address, may ªnd that their messages are rejected by recipients.76

66 Id. at 6–7; cf. Magee, supra note 6, at 343–44 (discussing efforts by ISPs to prevent spam by including anti-spam terms in their user contracts but noting that the lack of authentication makes it difªcult to enforce these contracts). 67 Yoke & Tan, supra note 20, at 5. For a discussion of network ports and related termi- nology, see Port (computing), http://en.wikipedia.org/w/index.php?title=Port_(computing)&oldid=41985982 (last visited March 3, 2006). 68 Yoke & Tan, supra note 20, at 5; see also Gross, supra note 38. 69 Yoke & Tan, supra note 20, at 5. 70 Id. at 6. 71 Id. 72 Id. 73 Id. at 6–7. 74 See infra notes 75–76 and accompanying text. 75 Yoke & Tan, supra note 20, at 7 (listing the various proposed authentication methods). 76 Cf. id. at 5 (noting that similar solutions, such as Port 25 blocking, can have the effect of blocking legitimate e-mails). 2006] International Spam Regulation & Enforcement 331

2. Blocking Spam by the Receiving ISP At the receiving ISP, several options are available as well.77 One of the more controversial options is to implement a reputation system.78 These systems rate incoming mail servers by their reputations for sending spam.79 If an ISP is known to be the source of spam, a receiving ISP can simply block all e-mail trafªc from that ISP.80 The risk here is that not all e-mail trafªc from that ISP is likely to be spam and many legitimate e-mails could be blocked.81 One form of these reputation systems are “blacklists” and “whitelists,” which companies compile to list e-mail addresses, domains, and IP addresses that are deemed either consistent spammers or safe senders, respectively.82 Blacklists and whitelists have been effective at blocking some spam and are shared with ISPs to use in conjunction with other spam-ªghting methods.83

3. End-user Spam Filtering Techniques Lastly, there are end-user based ªltering mechanisms.84 These can be both static and Bayesian.85 Static ªlters are simply lists of e-mail addresses from which e-mails are automatically deleted.86 Bayesian ªltering provides a more robust solution that gradually “learns” what a user regards as spam.87 The problem with these systems is that they tend to generate false positives and mark legitimate mail as spam, while spammers are constantly working to beat their algorithms.88 Both of these ªltering technologies are widely used in all of the major e-mail services today.89

77 See id. at 5–11. 78 Id. at 9–10. 79 Id. 80 Id. 81 Sarrocco, supra note 2, at 12. 82 Yoke & Tan, supra note 20, at 9–10. 83 See The Spamhaus Project, http://www.spamhaus.org (last visited Mar. 7, 2006) (providing blacklists, whitelists, and other anti-spam services to ISPs); see also John Levine, How to Stop Spam, CircleID, Jan. 24, 2005, http://www.circleid.com/posts/how_to_stop_spam/. 84 Yoke & Tan, supra note 20, at 11–13. 85 Id. For additional background on Bayesian spam ªltering, see Bayesian Filter, http://whatis.techtarget.com/deªnition/0,289893,sid9_gci957306,00.html (last visited Mar. 8, 2006). 86 Yoke & Tan, supra note 20, at 11–13. 87 Id. 88 Id. at 14 (noting the false positive risk and that spammers try to avoid ªlters by purposely misspelling words in their spam). 89 Yoke & Tan, supra note 20, at 13. 332 Boston College International & Comparative Law Review [Vol. 29:323

E. National Legislative Approaches to Fighting Spam While technical solutions have proliferated, many national governments, and indeed much of the international community, believe that the ªght against spam cannot be adequately fought without legislation and enforcement.90 As a result, many countries have enacted anti- spam laws.91 These laws diverge, however, in their deªnitions of spam and their methods of enforcement.92 These differences may prove to make international cooperation difªcult in the future.93 There are many different models for enforcing spam laws, so countries have enacted laws with any combination of criminal sanctions, civil actions brought by their governments, or private rights of actions that may be brought by individuals or ISPs.94 There are, however, some commonalities to most of these laws.95 Most consider unsolicited e-mail to be illegal when it conceals the sender’s identity, uses a third party’s domain name without permis- sion, or provides misleading information in the subject line of the e- mail.96 In general, these laws either use an opt-in approach, in which prior authorization is required, or an opt-out approach, in which the recipient can opt-out of future messages.97 Many of the laws require senders to clearly and accurately identify themselves as well.98 One such law is the CAN-SPAM Act, which the U.S. Congress enacted in 2003.99 The Act preempted several state spam laws that had

90 See Horton, supra note 2, at ¶ 23. See generally Matthew B. Prince, How to Craft an Effective Anti-Spam Law (2004), http://www.itu.int/osg/spu/spam/contributions/ Background%20Paper_How%20to%20craft%20and%20effective%20anti-spam%20law.pdf (recommending how legislation and enforcement can be more effective). 91 See generally Int’l Telecomms. Union, ITU Survey on Anti-Spam Legislation Worldwide (2005), available at http://www.itu.int/osg/spu/spam/legislation/Background _Paper_ITU_Bueti_Survey.pdf; Int’l Telecomms. Union, Annex I: Worldwide Authori- ties and Legislative Frameworks Addressing Spam [Draft in Progress] (2004), available at http://www.itu.int/osg/spu/spam/contributions/Background%20Paper_Building%20 frameworks%20for%20Intl%20Cooperation_Annex%201.pdf [hereinafter World-wide Auth orities] (reviewing several countries’ spam laws). 92 Horton, supra note 2, at ¶ 26 (noting that there is little agreement across jurisdictions as to what anti-spam laws prohibit). 93 Id. 94 See Prince, supra note 90, at 7-8; Sarrocco, supra note 2, at 14. 95 See Sarrocco, supra note 2, at 14. 96 Id. 97 Id. 98 Id. 99 Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. §§ 7701–7713, 18 U.S.C. § 1037 (2006). 2006] International Spam Regulation & Enforcement 333

attempted to solve the problem.100 The law follows an “opt-out” policy, permitting unsolicited bulk email as long as the messages are not misleading or fraudulent, accurately represent the purpose of the message, and provide recipients an opt-out option.101 This opt-out mechanism must work and there must be a legitimate e-mail address to which users can send messages to unsubscribe.102 This is meant to address the problem of spammers providing ineffective or fraudulent methods of opting out.103 The U.S. Congress identiªes spam as messages that: (1) are sent through a server without authorization; (2) are sent via “zombie” computers with the intent to deceive recipients or ISPs; (3) have falsiªed header information, such as “from,” “to,” or tracking information; (4) that falsify the identity of the sender; or (5) otherwise falsely represent the sender.104 The CAN-SPAM Act provides for criminal enforcement by the Federal Trade Commission (FTC) and provides a civil cause of action for state attorneys general and ISPs to sue spammers.105 Several prosecutions and civil actions were brought pursuant to the CAN-SPAM Act in its ªrst year of enactment.106 The CAN-SPAM Act, however, received much criticism for its opt-out approach, which effectively permits spammers to send one e-mail to anyone, provided that there is an opt-out mechanism.107 Studies have shown no noticeable decline of spam since the Act went into effect.108 Elsewhere, Australia passed its 2003 Spam Act, which went into effect in April 2004.109 This is an opt-in regime, forbidding spam from being sent even once, and providing primarily for civil damages

100 15 U.S.C. § 7707(b)(1). See generally Magee, supra note 6, at 356–58 (providing an overview of pre-CAN-SPAM state laws). 101 15 U.S.C § 7704(a). 102 Id. 103 See id. § 7701(a)(9). 104 See 18 U.S.C. § 1037(a). 105 15 U.S.C. § 7706(d), (f), (g). 106 See Horton, supra note 2, ¶ 27; David Cohen, Spam Is Finally a Crime, Wired News, Nov. 4, 2004, http://www.wired.com/news/business/0,1367,65594,00.html. 107 See Tom Zeller, Jr., Law Barring Junk E-Mail Allows a Flood Instead, N.Y. Times, Feb. 1, 2005, at A1; Spamhaus, Spamhaus Position on CAN-SPAM Act of 2003 (S.877 / HR 2214), http://www.spamhaus.org/position/CAN-SPAM_Act_2003.html (last visited Mar. 7, 2006) (“Spamhaus sees the introduction of the CAN-SPAM Act of 2003 (S.877/HR 2214) as a serious failure of the United States government to understand the Spam problem.”). 108 See Zeller, supra note 107. 109 Worldwide Authorities, supra note 91, at 3. 334 Boston College International & Comparative Law Review [Vol. 29:323 against spammers.110 Similarly, the European Union has also enacted opt-in spam legislation.111 Despite the stronger regime, critics argue that because most spam originates outside of Europe, the law lacks enforcement power.112

F. International Cooperation on Spam In recent years, many countries have recognized that without international cooperation, their domestic anti-spam legislation is in- sufªcient.113 As a result, several countries have begun cooperating on anti-spam initiatives.114 Australia has made international spam cooperation a key element in a multi-tiered strategy to combat spam.115 Australia has proposed a ºexible approach to cooperation in which different countries (1) introduce domestic spam legislation that is reasonably coordinated and (2) commit to respond effectively to information about spammers beyond their borders.116 Australia has proposed and entered into a few bilateral and multilateral agreements dealing with spam.117 The European Union has also proposed a system of cooperation to combat spam.118 It has proposed a series of coordinated actions that member states should implement, including effective enforcement of laws and national strategies to ensure communications between the various regulatory agencies.119 It also suggests using or creating a “liai- son mechanism” to help support cross-border spam enforcement.120 The United States, the United Kingdom, and Australia recently entered into a Memorandum of Understanding (MoU) agreeing to work together to combat spam.121 This agreement committed the coun-

110 John Haydon, Multi-lateral and Bi-lateral Cooperation: the Australian Ap- proach 1–2 (2004), available at http://www.itu.int/osg/spu/spam/presentations/ HAY- DON_Session%208.ppt. 111 Worldwide Authorities, supra note 91, at 5. 112 European Anti-Spam Laws Lack Bite, BBC News, Apr. 28, 2004, http://news.bbc. co.uk/2/hi/technology/3666585.stm. 113 Gérard, supra note 8, at 4 (noting the “crucial role for multilateral and bilateral cooperation”). 114 See Haydon, supra note 110, at 4. 115 Id. at 2. 116 Id. at 2–3. 117 Id. at 4. 118 Sarrocco, supra note 2, at 15. 119 See Gérard, supra note 8, at 10–12. 120 Id. 121 Memorandum Of Understanding on Mutual Enforcement Assistance in Commer- cial E-mail Matters Among the Following Agencies of the United States, the United King-

2006] International Spam Regulation & Enforcement 335

tries’ respective spam-ªghting agencies to working together to enforce each country’s spam laws.122 Recognizing that “[i]llegal spam does not respect national boundaries,” the FTC agreed to work closely with the United Kingdom’s Secretary of State for Trade and Industry, Australia’s Competition and Consumer Commission, and the Australian Commu- nications Authority to share research, knowledge, technical expertise, evidence, and other enforcement information.123 The MoU respects the different spam laws in each country, with their different deªnitions of spam, yet it encourages each country to cooperate in enforcing the laws in the other countries.124 It also recognizes that it is impossible to cooperate on every spam case, so it recommends cooperation on only the most signiªcant or most damaging spam cases.125 Perhaps the most signiªcant effort at internationalizing the spam problem began with a global summit of the United Nations, known as the World Summit on the Information Society (WSIS).126 This summit took place over the course of a few years, ªrst meeting in December, 2003 in Geneva and meeting again in November, 2005 in Tunis.127 The summit was sponsored by the International Telecommunications Union (ITU), which is a UN body charged with regulating parts of the international telecommunications infrastructure.128 The summit arose out of UN General Assembly Resolution 56/183, which, as part of the Millennium Declaration initiative to rid the world of poverty, called for a multi-part meeting to promote access to the Internet and information across the world.129 WSIS involved governments, technology companies, and other public interest organizations in discussions addressing a wide range of issues, from how

dom, and Australia: the United States Federal Trade Commission, the United Kingdom’s Ofªce of Fair Trading, the United Kingdom’s Information Commissioner, Her Majesty’s Secretary of State for Trade and Industry in the United Kingdom, the Australian Competi- tion and Consumer Commission, and the Australian Communications Authority, June 30, 2004, available at http://www.ftc.gov/os/2004/07/040630spammoutext.pdf [hereinafter MoU]. 122 Press Release, Federal Trade Commission, Consumer Protection Cops Join Forces to Fight Illegal Spam: Six Agencies on Three Continents Will Leverage Law Enforcement Efforts ( July 2, 2004), available at http://www.ftc.gov/opa/2004/07/mou.htm. 123 Id. 124 See MoU, supra note 121, at 1. 125 MoU, supra note 121, at 5. 126 See Grossman, supra note 9. See generally Klein, supra note 10. 127 Grossman, supra note 9. 128 Klein, supra note 10, at 2; Hans Klein, The Internet: Place, Property, or Thing—All or None of the Above?, 55 Mercer L. Rev. 947, 949 (2004) [hereinafter Klein, The Internet]. 129 G.A. Res. 56/183, U.N. GAOR, 56th Sess., U.N. Doc. A/RES/56/183 ( Jan. 31, 2002). 336 Boston College International & Comparative Law Review [Vol. 29:323 to “govern” the Internet, to spam, to increasing access to communications technologies around the world.130 Two concluding documents from the Geneva phase of WSIS, the Declaration of Principles and the Plan of Action, cited spam as a problem requiring international attention and committed the parties to working together to solve this problem.131 After the Geneva phase, the WSIS convened a Thematic Meeting on Countering Spam.132 This meeting gathered governments, consumer groups, ISPs, nongovern- mental organizations, and experts from the software and Internet technology industries to discuss the latest efforts in combating spam.133 The parties to the meeting made several political, legal, and technical recommendations on how to combat spam and also provided an overview of the current state of global anti-spam efforts.134 Finally, the Tunis phase produced even more statements of international commitment to ªght spam.135

G. Brief Overview of Internet Governance Another one of the focus areas of WSIS was a global discussion of “Internet governance.”136 Although it does not have a speciªc deªnition, at its heart, Internet governance includes the private organizations, governments, treaty organizations, and other bodies that, to some degree, govern the Internet.137 Because the Internet is bor- derless and has so many constituencies, national governments have a limited role in Internet governance, which they share with many other institutions.138 For this reason, there is much debate about

130 Id.; Grossman, supra note 9. 131 Declaration of Principles, supra note 11, ¶ 37; World Summit on the Info. Soci- ety, Plan of Action ¶ 12(d) (WSIS Doc. WSIS-03/GENEVA/DOC/0005) (2003), available at http://www.itu.int/dms_pub/itu-s/md/03/wsis/doc/S03-WSIS-DOC-0005!!PDF-E.pdf. 132 See Horton, supra note 2, ¶ 1. 133 Id. ¶ 4. 134 See id. ¶¶ 4, 8. 135 See generally Deborah Hurley, Int’l Telecomms. Union, ITU WSIS Thematic Meeting on Cybersecurity, Chairman’s Report (2005) ¶¶ 6–35, available at http:// www.itu.int/osg/spu/cybersecurity/chairmansreport.pdf [hereinafter Cybersecurity Re- port) (reviewing the results of the cybersecurity meeting); Tunis Agenda, supra note 11, ¶ 41 (expressing support for the ªght against spam at the end of the Tunis phase). 136 Declaration of Principles, supra note 11, ¶ 50 (asking the UN to set up a working group for Internet governance). 137 See Milton Mueller et al., Making Sense of “Internet Governance”: Deªning Principles and Norms in a Policy Context, in Internet Governance, supra note 45, at 100, 101–03. 138 Id. 2006] International Spam Regulation & Enforcement 337

whether there should be any formal governing structure and how effective such a structure can be.139 At the heart of this debate is the Internet Corporation for As- signed Names and Numbers (ICANN), which was established in the United States as the organization that controls the core domain name system by providing ISPs and companies with their Internet domain names.140 ICANN serves as a quasi-international body, which manages the domain name distribution and conºict resolution process for the entire Internet.141 ICANN is incorporated under U.S. contract law and is subject to U.S. law.142 Many other countries believe that a United Na- tions body, such as the ITU, should govern such a critical aspect of the Internet and have pushed towards this result in the WSIS context.143 At this point, there is no central governance institution concerned with the ªght against spam, but the debates on Internet governance in general and ICANN in particular may inform the debate about the feasibility of such an institution.144

II. Discussion International efforts to combat spam present many difªcult issues.145 At the same time, however, there is consensus that spam is a problem that needs an international response.146 The challenge, therefore, is in ªnding the common ground on which to move forward. 147

139 See generally Declan McCullagh, Internet Showdown in Tunis, Cnet News.com, Nov. 11, 2005, http://news.com.com/Internet+showdown+in+Tunis/2008-1012_3-5945200.html; Markus Kummer, The Results of the WSIS Negotiations on Internet Governance, in Internet Gov- ernance, supra note 45, at 53, 53–55. 140 See generally Wolfgang Kleinwächter, Beyond ICANN vs. ITU: Will WSIS Open New Terri- tory for Internet Governance?, in Internet Governance, supra note 45, at 31, 32, 38–40. 141 Klein, The Internet, supra note 128, at 950–53. 142 Id. at 948–51. 143 Id. at 959–61. 144 Kleinwächter, supra note 140, at 32 (noting that in the early stages of WSIS, some governments wanted to expand the concept of Internet governance to include many Internet related issues such as spam and illegal content and to have an international institution such as the ITU to take over this initiative). 145 See generally Horton, supra note 2, ¶¶ 23–35. 146 See, e.g., Declaration of Principles, supra note 11, ¶ 37; Michelle Delio, Spam Gets Its Claws in the U.N., Wired News, Mar. 28, 2004, http://www.wired.com/news/politics/0,1283,62824,00.html. 147 See Sarrocco, supra note 2, at 18. 338 Boston College International & Comparative Law Review [Vol. 29:323

A. Freedom of Speech, Regulation of Commerce, and Spam Deªnitions One of the threshold issues in the ªght against spam is how to deªne it.148 It may be tempting to simply call all unwanted e-mail spam, or to take an approach similar to the one Justice Potter Stewart used to deªne pornography (“I know it when I see it.”),149 but a more speciªc deªnition is necessary to create enforceable spam laws.150 Some say that all unsolicited bulk e-mail (UBE) should be considered spam, while others suggest that the messages must also be commercial in nature.151 The latter messages are known as unsolicited Commer- cial E-mail (UCE).152 Still others argue that to be considered spam, a message must have no “unsubscribe” mechanism and must somehow disguise its sender or its intent with fraudulent or misleading header information.153 Underlying these various deªnitions is a range of ideas behind what is an appropriate use of Internet resources.154 Most people agree that for a message to be considered spam, it must be bulk in nature.155 This is because the primary problem of spam is that it consumes users’ time and bandwidth.156 Of course, the other key component is that the message be unsolicited.157 A key debate, therefore, is whether noncommercial bulk e-mails should be considered spam.158 These include charitable fundraising solicitations, political ads, chain letters, and other such messages.159 Those who would prefer to limit the scope of “spam” to UCE argue that private and public spam enforcement should primarily punish those who use spam for proªtable gain.160 Those who support broader UBE restrictions argue that since the harm is the same for any spam mes-

148 Sorkin, supra note 13, at 326–36. 149 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). 150 See Sorkin, supra note 13, at 327. 151 Compare Sorkin, supra note 13, at 327–35, with Spamhaus, The Deªnition of Spam, http://www.spamhaus.org/deªnition.html (last visited Mar. 7, 2006). 152 Sorkin, supra note 13, at 327–35. 153 Id.; 18 U.S.C. § 1037(a) (deªning elements of fraud in connection with commercial e-mail). 154 Magee, supra note 6, at 338 (noting that spam regulation presents a clear contradic- tion between business interests and those of private individuals who do not want to receive spam). 155 Sorkin, supra note 13, at 330–31. 156 Id. 157 Id. at 328–29. 158 Id. at 333. 159 Id. 160 Sorkin, supra note 13, at 334. 2006] International Spam Regulation & Enforcement 339

sage, they should all be combated.161 The United States, however, has constitutional restrictions against regulating non-commercial speech and is unable to broadly regulate UBE.162 The issue of how to deªne spam, which necessarily touches upon the ªne distinction between legitimate commercial speech and unwanted spam, is a difªcult one.163 It presents a complex policy question about how much commercial speech is appropriate and at what point it intrudes on the rights of others.164 In the United States, the First Amendment restricts Congress’s ability to pass enforceable anti-spam legislation.165 The Supreme Court held in Central Hudson Gas & Electric Co. v. Public Service Commis- sion of New York that the First Amendment protects commercial speech from regulation, provided that it is otherwise lawful and not misleading.166 If the speech meets these criteria, then any regulation of it must directly advance a substantial governmental interest and must not be more extensive than necessary to meet that objective.167 In developing the CAN-SPAM Act, Congress could therefore only narrowly regulate bulk e-mail messages that are not misleading or otherwise illegal.168 To regulate these more legitimate commercial e-mails, Con- gress needed to assert that the law was necessary to serve a substantial government interest.169 Congress reasoned that even non-misleading or illegal spam must be regulated to preserve “the viability of e-mail as a medium of communication” because “there is a real danger that this medium will be rendered useless without regulation.”170 Considering the massive amounts of spam relative to legitimate e-mail, Congress was able to ªnd a substantial government purpose to meet the Central Hudson test.171

161 Id. at 335. 162 See generally Marc Simon, The CAN-SPAM Act of 2003: Is Congressional Regulation of Unsolicited Commercial E-Mail Constitutional?, 4 J. High Tech. L. 85 (2004). 163 See Magee, supra note 6, at 338–39. 164 See id. 165 See id. at 358–60. 166 447 U.S. 557, 566 (1980). 167 Id. 168 See generally Simon, supra note 162 (providing a complete constitutional analysis of the CAN-SPAM Act). 169 Magee, supra note 6, at 359. 170 Michael A. Fisher, The Right to Spam? Regulating Electronic Junk Mail, 23 Colum.-VLA J.L. & Arts 363, 409–10 (2000). 171 See Simon, supra note 162, at 95; Magee, supra note 6, at 359. 340 Boston College International & Comparative Law Review [Vol. 29:323

Nonetheless, to meet the proportionality requirement, the CAN- SPAM Act needed to rely on an opt-out approach to UBE.172 This permitted “legitimate” e-mail marketing messages to be sent once, as long as consumers could opt out of further messages.173 Although an opt-in approach would probably be a more effective anti-spam regime, it could very well be found to be disproportionate in that it would block many mailings that could be considered protected commercial speech.174 While the CAN-SPAM Act has a lenient opt-out policy to conform to U.S. law, it does set some standards for what is acceptable spam and what is not, including e-mail with forged identities, fraudulent schemes, viruses, and those without reliable opt-out mechanisms.175 These basic rules roughly correspond to spam laws in other countries, even if those countries have stricter, opt-in legislation.176 Nonetheless, these two approaches do present a problem in creating any enforceable international spam regime.177 If the international community were to adopt a multilateral agreement on spam, it may be forced to adopt an opt-out approach, which is the lowest common denominator approach to national spam laws.178 Though this approach would be weaker than the existing laws in many countries, this may be necessary to set minimum enforcement standards that all countries can accept.179 If it were to adopt a stricter opt-in approach, countries such as the United States may have to reject it due to do-

172 See Jeffrey D. Sullivan & Michael B. De Leeuw, Spam After Can-Spam: How Inconsistent Thinking Has Made a Hash Out of Unsolicited Commercial E-Mail Policy, 20 Santa Clara Com- puter & High Tech. L.J. 887, 893 (2004) (noting that Congress never seriously considered an opt-in spam policy partially due to First Amendment concerns). 173 See Prince, supra note 90, at 3 (discussing the commercial speech rationales behind opt-out policies). 174 See id. (noting direct marketing statistics supporting the argument that an opt-in approach could “unreasonably burden legitimate businesses”). 175 15 U.S.C. § 7704(a)(5) (providing that, for UCE to be lawful, it must include a valid, working opt-out mechanism, valid postal address of the sender, and “clear and con- spicuous identiªcation that the message is an advertisement or solicitation”); 18 U.S.C. § 1037(a) (criminal prohibition against the use of “zombies” and falsiªed domain names to send UCE). 176 See generally Worldwide Authorities, supra note 91. 177 See Sarrocco, supra note 2, at 16 (“The harmonization of legislative approaches to spam between different jurisdictions from which an e-mail user is likely to receive spam would be crucial in order to properly tackle the problem.”). 178 See id. 179 See id. at 16. 2006] International Spam Regulation & Enforcement 341

mestic constitutional grounds.180 Since the United States produces the lion’s share of global spam, this problem could render such an international cooperation effort useless.181

B. Internet Governance Debate Another challenge in developing a global solution to the spam problem involves the question of whether the Internet can or should be governed, and if so, by whom.182 Some scholars wonder if it is possible to govern the Internet or if this would even be beneªcial.183 Some say any attempts at formal governance are futile since the Internet is such a huge, seemingly uncon- trollable network.184 They argue that because the Internet spans borders, there is really no government or institution that can possibly regulate it.185 Even if regulation were possible, these scholars fear that too much control could risk stiºing the open communication, entre- preneurship, and inherently democratic virtues of the Internet.186 Their concern is that too much intervention in the Internet could stiºe commerce by cutting back on new innovations, and could impose the social mores of one group on the global Internet community.187 Nonetheless, several organizations play some Internet governance roles already.188 Most prominent among these is ICANN, which moni- tors the domain name system and is the ultimate authority behind the naming conventions on the Internet.189 ICANN works to establish contract-based rules to resolve public policy domain problems such as copyright and trademark infringement issues among domain own-

180 See Sullivan & De Leeuw, supra note 172, at 893. See generally Adam Zitter, Note, Good Laws for Junk Fax? Government Regulation of Unsolicited Solicitations, 72 Fordham L. Rev. 2767 (2004) (discussing the constitutionality of opt-in and opt-out systems). 181 Cynthia L. Webb, There’s No Spam Like American Spam, Washingtonpost.com, Feb 3, 2004, http://www.washingtonpost.com/ac2/wp-dyn/A8344-2004Feb3?language=printer (noting that 80% of European spam “is in English and 80% claims North America as its point of origin”). 182 See, e.g., Kleinwächter, supra note 140, at 31 (noting that Internet governance is “one of the most controversial issues” in WSIS). 183 See, e.g., Zoë Baird & Stefaan Verhuist, A New Model for Global Internet Governance, in Internet Governance, supra note 45, at 58, 61. 184 Id. 185 Id. 186 See, e.g., id. (arguing that too much government involvement in Internet governance can have the unintended consequence of stiºing free speech). 187 Id. 188 Mueller et al., supra note 137, at 103. 189 Id. at 102. 342 Boston College International & Comparative Law Review [Vol. 29:323 ers.190 Other national government institutions also regulate online commerce in their countries.191 In addition, the World Intellectual Property Organization (WIPO) has created some standards for content over the Internet and has mandated that its member states create and enforce Internet-related intellectual property laws.192 Some private individuals, companies, and other organizations have played governance roles as well.193 Standards bodies, for example, develop the protocols that are used on the Internet, such as for e-mail, the World Wide Web, and display technologies such as HTML.194 ISPs, as the gateways to the Internet, have some control over the actions of Internet users.195 With regard to spam, ISPs have the power to block e- mails from senders before they get to their targets.196 So to some extent, technology developers, private ISPs, and users play more of a role in Internet governance than do the governmental bodies discussed above.197 Some people argue that spam regulation should be primarily left up to the private sector, with its constant improvements in anti- spam technology.198 They argue that spam legislation and enforcement takes too long, that the laws are redundant because existing laws already cover privacy and fraud, and that private technological solutions are already bearing fruit in the ªght against spam.199 They argue that there is no need for any public or private centralized authority to man- age the Internet or to combat spam and instead argue for a decentralized, private form of governance.200 Such a system, based on a “peer production” model, puts governance in the hands of end users, ISPs, and employers who run the local networks that people use.201

190 Id. 191 See id. at 102–03. 192 Id. at 103. 193 See infra notes 194–97 and accompanying text. 194 Robert E. Kahn, Working Code and Rough Consensus: The Internet as Social Evolution, in Internet Governance, supra note 45, at 16, 18 (describing the role of standards bodies in gradually developing standards of behavior on the Internet). 195 See, e.g. Yoke & Tan, supra note 20, at 4–6. 196 See Levine, supra note 83. 197 See generally Lawrence Lessig, Code and Other Laws of Cyberspace (1999) (discussing the role that private technology has in creating the de facto law of the Internet). 198 See Rich Kulawiec, 10 Reasons Why Involving Government in Spam Control Is a Bad Idea, CircleID, Jul. 19, 2004, http://www.circleid.com/posts/10_reasons_why_involving_gov- ernment_in_spam_control_is_a_bad_idea. 199 See id.; see also Levine, supra note 83. 200 See David R. Johnson, et al., The Accountable Internet: Peer Production of Internet Gov- ernance, 9 Va. J.L. & Tech. 9, ¶ 2 (2004), http://www.vjolt.net/vol9/issue3/v9i3_a09- Palfrey.pdf. 201 Id. ¶¶ 39–40. 2006] International Spam Regulation & Enforcement 343

Sometimes, however, individuals need true “hard law” to fall back on, when private regulation is not sufªcient.202 In the spam context, this could happen when a purportedly legitimate spammer feels his free speech has been violated by an over-sensitive ISP that blocks his e- mail.203 In this case, the spammer may want to pursue his claim in court under substantive law, as opposed to ªghting directly with ISPs.204 Internet governance and spam regulation are therefore governed by a sort of partnership between private and public institutions.205 The question remains, however, how to organize all of these parties to best combat the spam problem.206 As discussed in Part II, many foreign governments and institutions believe that the United Nations, or one of its constituent organizations such as the ITU, should have the ultimate authority over Internet governance.207 They feel that American institutions such as ICANN do not represent global interests as well as a UN body would.208 On the other hand, some scholars believe that UN management may lead to limita- tions on free speech on the Internet and spam policy, as non- democratic member states apply pressure for censorship policies.209 Any international spam resolution must take into account this debate between private governance institutions, quasi-governmental institutions such as ICANN, and international treaty organizations such as ITU or WIPO.210

C. Intergovernmental Cooperation & Enforcement Challenges Though in recent years the international community has urged multilateral cooperation in the ªght against spam, many barriers to effective enforcement remain.211 One challenge in developing a cooperation regime is that the ªght against spam is a “horizontal” challenge affecting many different areas of the law, including “telecom-

202 See Sorkin, supra note 13, at 343–44 (discussing the “problems with self-regulation”). 203 See id. at 349 (noting that ISP ªlters interfere with legitimate e-mail trafªc). 204 See Sarrocco, supra note 2, at 12. 205 See generally Baird & Verhulst, supra note 183; Johnson, supra note 200. 206 See Magee, supra note 6, at 378–79 (discussing some frameworks for a global system to combat spam). 207 See Klein, The Internet, supra note 128, at 959–60. 208 Id. 209 See Bruce Levinson, Preventing a New World Internet Order, CircleID, Jan. 18, 2005, at http://www.circleid.com/posts/preventing_a_new_world_internet_order/. 210 Magee, supra note 6, at 378–80. 211 Sarrocco, supra note 2, at 18 (noting the jurisdictional challenges to international spam cooperation). 344 Boston College International & Comparative Law Review [Vol. 29:323 munications, trade, privacy, and consumer protection.”212 As a result, non-spam legislation, such as anti-fraud or privacy laws, often target spammers as much as laws that speciªcally target spam.213 In addition, even when countries have spam-speciªc laws, the related enforcement powers can vary.214 Many countries do not offer criminal sanctions against spammers and only offer civil ªnes, while others offer these sanctions as well as private causes of action by either individuals or ISPs.215 It is therefore challenging to develop an international regime that is ºexible enough to account for the differences in the relevant local laws that affect spam.216 Similarly, most countries have several regulatory bodies that are responsible for spam.217 In the United States, for example, the FTC and state attorneys general both enforce spam laws.218 In other countries, this authority is vested in multiple agencies; for example, in the United Kingdom, the Information Commissioner and the ofªce of Fair Trading and Her Majesty’s Secretary of State for Trade and In- dustry all have some authority in this area.219 Adding another layer of complexity to the problem, many countries do not yet have any spam-speciªc legislation and currently have no plans to develop it.220 This further complicates any coordination efforts among various states.221 Another issue with spam coordination is the cost of investigating and enforcing spam laws.222 Spammers have become very skilled at hiding their identities through the use of technology, which signiªcantly increases the costs of enforcement.223 Because there are so many spammers, this would require hundreds of spam prosecutions, which of course drives up the costs considerably.224 Many countries will only be

212 Id. at 14. 213 Id. 214 See Prince, supra note 90, at 7-8; Sarrocco, supra note 2, at 14. See generally Worldwide Authorities, supra note 91 (providing a list of spam laws worldwide and their enforcement mechanisms). 215 Id. 216 Id. at 14–18. 217 Sarrocco, supra note 2, at 17. 218 See id. 219 Id. 220 See generally Petr Piškula & Jana Klaschková, Report on Non-OECD Countries’ Spam Legislation 6–10 (2004), http://www.oecd.org/dataoecd/26/47/31861202.pdf. 221 See, e.g., Gérard, supra note 8, at 3 (arguing that the ªrst step in international spam cooperation is to establish effective anti-spam legislation in every country). 222 Prince, supra note 90, at 4 (discussing the costs of prosecuting spammers). 223 See id. at 5. 224 See id. at 4–5. 2006] International Spam Regulation & Enforcement 345

willing to cooperate in investigating or prosecuting spammers in cases where there are signiªcant damages.225 Countries have many more important ways of spending their resources than prosecuting spammers, unless the value of the prosecution is clear.226 This presents the problem of deªning exactly what kinds of spam, and how much of it, causes enough damage to warrant the expense of international cooperation.227 Any cooperation regime must also spell out exactly what information must be shared across borders and what the expectations are for each party.228 The MoU between the United States, Australia and the United Kingdom may provide a starting point for a comprehensive cooperation mechanism.229 Rather than deªning spam or mandating any speciªc spam laws, it defers to the laws and institutions of the participating countries.230 It commits the parties to help each other gather evidence, serve process, share technology, and otherwise coordinate in the battle against spam.231 It further provides for a strict conªdentiality system to preserve the privacy of the parties involved in any international spam investigation.232 The MoU, however, is merely aspirational, in that it does not create any “binding obligations under international law or under the domestic laws of the Participants.”233 While loose agreements such as the MoU may be helpful, in light of the discussions at the various WSIS meetings, perhaps a more forceful agreement can be negotiated to combat spam on a larger scale.234 Just as there are already several multilateral Internet governance institutions such as ICANN and the WIPO, perhaps a new organization, with its authority provided for in a multilateral treaty, can be created with limited jurisdiction over spam enforcement and cooperation.235

III. Analysis Though there are many challenges to improving international cooperation on spam, WSIS provided a forum where many stake- holders around the world could debate the problem and begin to de-

225 Id. 226 Id. 227 Prince, supra note 90, at 5. 228 See, e.g., MoU, supra note 121, at 4–5. 229 See generally id. 230 Id. at 2–4. 231 Id. at 3. 232 Id. at 8. 233 MoU, supra note 121, at 10. 234 See Horton, supra note 2, ¶ 32. 235 See id. 346 Boston College International & Comparative Law Review [Vol. 29:323 velop comprehensive solutions.236 The various sessions of WSIS discussed the many issues of the spam problem, and brought to light many initiatives that are being tried around the world.237 At the end of the Tunis phase of the summit, the parties agreed to “adopt a multi-pronged approach to counter spam that includes, inter alia, consumer and business education; appropriate legislation, law enforcement authorities, and tools; the continued development of technical and self-regulatory measures; best practices, and international cooperation.”238 In light of this decision, the challenge before the international community is how to expand on the existing multi-pronged approaches that were discussed at WSIS, such as the MoU, and create a framework that enables truly global cooperation in the ªght against spam.239 Any cooperative system must be ºexible enough to meet domestic constitutional requirements and effectively interrelate with domestic laws while being forceful enough to deter spammers at an international level.240 At the same time, such a system must not stiºe the innovative capabili- ties of the private sector, technology companies, and ISPs, who provide the critical front-line defense against spam.241 The framework must also enhance international cooperation to enable investigation, prosecution, and civil lawsuits against spammers who take advantage of the global nature of the Internet.242 Perhaps the best way to balance the interests involved would be to create a multilateral treaty organization that strengthens and expands upon the MoU and other similar initiatives, while preserving their ºexibility to account for jurisdictional differences.243 Because of the

236 Cf. Delio, supra note 146 (noting that spam is one topic at WSIS that “the entire world can agree on”). 237 See, e.g., Cybersecurity Report, supra note 135, ¶¶ 25–29 (reviewing many international initiatives on combating spam). 238 Tunis Agenda, supra note 11, ¶ 41. 239 See id. 240 See, e.g., Haydon, supra note 110, at 2; Prince, supra note 90, at 2–3 (arguing for more forceful “action laws” as opposed to unenforceable “sentiment laws” expressing a concern with spam); Sarrocco, supra note 2, at 18. These “domestic laws” include both spam-speciªc laws and more general laws governing fraud and the like. See id. 241 Org. for Econ. Co-operation & Dev., Directorate for Sci., Tech. and Indus., OECD Workshop on Spam: Report of the Workshop (OECD Doc. No. DSTI/ CP/ICCP(2004)1) ¶ 48 (2004), available at http://www.oecd.org/dataoecd/55/32/ 31450810.pdf [hereinafter OECD Report] (noting that some technical self-regulation will always be critical in order to deal with spam from countries not part of this agreement or those without any formal spam laws). 242 See, e.g., Prince, supra note 90, at 7–8. 243 See, e.g., Horton, supra note 2, ¶ 32. 2006] International Spam Regulation & Enforcement 347

ºexibility required to address the spam issue, the challenges posed by creating one organization that would govern international spam law and enforcement are probably insurmountable.244 It would be advisable, therefore, to create a body with more modest goals.245 This organization could be modeled after the WIPO or the World Heath Or- ganization, which encourage cross-border cooperation in their respective areas of expertise. It would require its members to enact some kinds of spam legislation and to provide for a minimal amount of enforcement and international cooperation.246 It could serve as a clearinghouse organization that funds technological and legal research and encourages nation-states to enter into multi-lateral agreements to help stop spam.247 This body would not, however, follow the ICANN model in attempting to create binding law that could effectively be enforced in multiple jurisdictions; rather it would set minimum standards for membership and develop and encourage new ways of cross-border cooperation.248

A. Addressing Constitutional & Deªnitional Questions For any international agreement on spam to work, it must require that member states enact spam laws that include a baseline deªnition of spam.249 The deªnitional aspect is crucial, not only because it provides for a basic understanding of what is considered to be spam, but depending on how broadly spam is deªned, it has the potential to implicate constitutional speech regulations.250 Thus, to ensure that many countries participate, this deªnition may need to adopt a “lowest common denominator” approach and set a standard that will produce minimal constitutional challenges in countries like the United States.251 Consequently, the minimal standard would likely have to be an “opt-out” approach.252 The agreement can follow the

244 See supra notes 240–42 and accompanying text. 245 See. e.g., id. 246 See infra notes 249–260 and accompanying text. 247 See infra notes 275–279 and accompanying text. 248 See infra notes 249-53, 260-262. 249 See Sarrocco, supra note 2, at 16. 250 See supra notes 163–171, 176–181 and accompanying text. 251 See supra note 178 and accompanying text. 252 See id. As has been discussed, any international spam agreement would probably fail without United States participation, since the United States produces, or is the target of, a large majority of global spam. See Webb, supra note 181. 348 Boston College International & Comparative Law Review [Vol. 29:323 lead of the MoU, however, and give member countries the ºexibility to adopt stricter, opt-in regimes if they choose to do so.253 The opt-in/opt-out debate may not, in fact, be a major stumbling block for agreements.254 Empirical evidence shows that the most successful prosecutions have arisen out of opt-out regimes, largely because it is very difªcult to prove that a user has not opted in to receiving a particular message.255 With this in mind, it may be more practical to adopt a seemingly lenient standard for spam enforcement.256 The minimum deªnition of spam can follow the lead of the EU Directive 2002/58/EC, which established some “basic rules” that deªne spam.257 These rules would declare spam illegal if it is UCE (this would not encompass all UBE, however) and does not have a working opt-out mechanism.258 In addition, any of the following items would qualify a message as illegal spam: (1) it contains fraudulent subject headers, sender addresses, sender domains, or sender identiªcation; (2) it is misleading in its nature; (3) it is otherwise illegal under existing laws for fraud, trademark, copyright, or other regulatory areas, such as unlicensed pharmaceutical sales.259

B. Resolving Enforcement Challenges This anti-spam organization would set standards for what spam crimes are worthy of international cooperation, and if these standards were met, it would mandate that member states cooperate to the full- est extent possible.260 It would set a threshold, using such variables as (1) quantity of spam; (2) amount of money lost due to fraud or identity theft; (3) other laws breached.261 Like the MoU, it would be ºexible to enable cooperation regardless of the speciªc enforcement bodies in various countries.262 This organization would also create a system through which any state investigating a spammer that meets the above threshold can re-

253 See supra notes 224–226 and accompanying text. 254 Prince, supra note 90, at 3–4. 255 Id. 256 Id. 257 Gérard, supra note 8, at 5. 258 Id.; See supra notes 98–105 and accompanying text. 259 Gérard, supra note 8, at 5; see supra notes 98–105 and accompanying text. 260 See Prince, supra note 90, at 4–5 (noting that prosecutors are only willing and able to prosecute the most egregious spam); see also MoU, supra note 121, at 5. 261 See, e.g., MoU, supra note 121, at 5. 262 See id. at 2–3. 2006] International Spam Regulation & Enforcement 349

quest that other states investigate individuals and servers located in their jurisdiction and, if necessary, serve process to the relevant parties.263 Additionally, as a result of the jurisdictional problems associated with identifying and locating spammers and investigating the servers used in sending spam, the agreement should require that member states establish laws asserting jurisdiction over domestic Internet activity as well as domains using their ccTLDs.264 This would enable, for example, the United Kingdom to assert jurisdiction over all e-mails sent from the .uk domain, even if the message was not sent from, or even routed through, any servers in the country.265 This way, if the United States wants to investigate a spammer who sent a message from a British server, or who used a .uk e-mail address, the United Kingdom government will have jurisdiction to investigate if it receives a request under the agreement from the United States.266 At the same time, the treaty must be ºexible enough to account for domestic privacy and conªdentiality rules.267 The parties would need to determine whether international spam laws should, at a minimum, provide for civil or criminal enforcement, or both.268 Prosecuting spammers can be exceedingly expensive, largely because it is so costly to investigate a spammer, and because so many must be prosecuted before a law can have any mean- ingful effect.269 Perhaps it would be effective for a treaty to mandate that countries enable private parties, such as ISPs, to bring civil actions against spammers.270 This would shift the ªnancial burden away from government to the parties that are most affected by spam.271 Given that some countries’ spam laws provide only civil causes of action, the agreement may once again require a lowest common denominator approach and mandate only that member states provide

263 See, e.g., id. at 5. 264 See Prince, supra note 90, at 8. For a deªnition of ccTLDs, see supra note 46 and accompanying text. 265 See, e.g., Prince, supra note 90. 266 See, e.g., OECD Report, supra note 241, ¶ 51. 267 See MoU, supra note 121, at 8. 268 See Prince, supra note 90, at 4 (noting that Virginia has had success by permitting ISPs to sue spammers); see also 15 U.S.C. § 7706(d), (f), (g). 269 See Prince, supra note 90, at 4–5. 270 See id. at 4. 271 Id. 350 Boston College International & Comparative Law Review [Vol. 29:323 for state-initiated civil actions, while enabling cooperation with those states that choose to impose criminal sanctions as well.272 Because spam touches so many areas of law, it may be very difªcult to limit the scope of an anti-spam treaty to avoid interfering with existing law enforcement mechanisms that target other related crimes.273 It is therefore important that the investigation and enforcement rules conªne themselves to a narrow deªnition of spam, while relying on existing laws and agreements to combat other offenses.274

C. Internet Governance and the Role of the Technology Industry This proposed spam agreement can attempt to strike a balance between those who feel that the Internet needs centralized authority and those who prefer a “peer production” model.275 Perhaps this organization can help provide some technical leadership in the ªght against spam, without mandating any speciªc technical solutions.276 It could help lead the way by serving as a clearinghouse for spam technologies and a conduit for ISPs and policy makers around the world.277 It would fund private research and development of anti- spam technologies and would be a central point of reference for governments and technology companies about the latest available standards to combat spam.278 In order to encourage competition and in- novation among competing technology providers, however, this organization would not mandate the use of any speciªc technologies.279 It would, however, make short-term recommendations, based on empirical evidence, about what solutions have been shown to be successful and would encourage cooperation between ISPs, users, and technology companies to help root out the spam problem.280 This loose framework could provide guidance to those countries that need it the most, including the developing nations that are just beginning to invest in their Internet infrastructure.281 At the same

272 See, e.g., supra notes 214–216 and accompanying text. 273 See Magee, supra note 6, at 378–80. 274 See, e.g., id. at 378. 275 See supra notes 198–201 and accompanying text. 276 See Johnson, supra note 200, ¶¶ 39–43 (noting the value in decentralized decisionmaking). 277 Id. 278 Id. 279 See, e.g., id. ¶ 46 (arguing that peer governance and competition is well suited for combating Internet security risks). 280 See, e.g., OECD Report, supra note 241, ¶ 54. 281 See Developing Nations Contribution, supra note 4. 2006] International Spam Regulation & Enforcement 351

time, it would enable ISPs and other Internet companies to explore new technologies that help keep up with the spammers when they have the resources to experiment.282 This organization would also serve as a point of reference to help national governments educate users and ISPs about the threat of spam and how to avoid it.283 This would help clarify spam-ªghting strategies and best-practices for those countries that need it.284 The ªght against spam does not need to be completely centralized, as the domain name system is currently managed by ICANN.285 Instead, this new organization can allow governments and private institutions to deal with the problems in their own way, as long as certain minimum standards are met.286 This solution could provide the centralized guidance that some countries need in their ªght against spam while also keeping technical control decentralized, thereby quelling the fears that centralized authority will stiºe free speech on the Internet.287

D. Advantages of This Approach In general, this organization would provide for a ºexible, multi- tiered approach to combat spam.288 The ªrst tier is action-oriented, in that it would mandate that member states enact spam laws, and commit themselves to cooperating in investigation and limited enforcement in the most egregious spam cases.289 It would provide basic legal standards and provide a framework for international cooperation and either civil or criminal enforcement.290 The second tier would be to serve as a central point of contact in the war against spam, in its role as a promoter of new technologies and cooperation between governments, ISPs, corporations, and users.291 This structure would balance the various issues in the Internet governance debate by continuing to promote technological standards and peer production to independently block spam, while providing a

282 Cf. Yoke & Tan, supra note 20, at 3 (noting that technology solutions are an “arms race” between the technology companies and the spammers). 283 OECD Report, supra note 241, ¶¶ 57–59. 284 Id. 285 See supra notes 189 and accompanying text. 286 See generally Johnson, supra note 200. 287 See, e.g., Levinson, supra note 209. 288 See, e.g. Horton, supra note 2, ¶ 37. 289 See supra notes 222-234 and accompanying text. 290 Id. 291 See supra notes 285-287 and accompanying text. 352 Boston College International & Comparative Law Review [Vol. 29:323 backstop for when these policies fail.292 This system would not “create an international government for the Internet,” as some fear; it would simply provide some basic standards for national governmental cooperation.293

Conclusion As spam has continued to proliferate, the private sector, national governments, and the international community have sought innovative ways to combat the problem. It has become clear that a multi-tiered strategy that leverages the skills in all of these areas is critical to combat spam. New technologies and coordination among ISPs are a critical ªrst step, and national governments can provide prosecution and other legal remedies to go after spammers who get past these technologies. Without international cooperation, however, spammers can avoid the reach of governments by sending their spam across borders. WSIS brought all of the relevant parties together to begin resolving the spam problem. Now that the international community is united against spam, they have an opportunity to develop new ways of coordinating the ªght. The international community should take this opportunity to negotiate a broad-ranging international agreement that takes advantage of the skills of all relevant parties, without interfering with the commercial rights of citizens or the sovereign prosecutorial power of individual states. Several smaller coordination and enforcement agreements have been implemented so far, and in light of the commitments made at WSIS, the international community can strengthen them with a ºexible international agreement that requires members to get more involved in the ªght against spam. At the same time, the organization created by this agreement would serve as an important clearinghouse for educational materials and technology standards for all relevant parties to use in their efforts to eliminate the problem. There is no “silver bullet” that will eliminate spam, but with the right planning, the international community can develop a clear, coordinated, international strategy to combat spam now, while remaining ºexible enough to adapt to evolving spam technologies in the future.

292 Id. 293 Johnson, supra note 200, ¶ 1. FOR THE BEST INTERESTS OF THE CHILDREN: WHY THE HAGUE CONVENTION ON INTERCOUNTRY ADOPTION NEEDS TO GO FARTHER, AS EVIDENCED BY IMPLEMENTATION IN ROMANIA AND THE UNITED STATES

Elisabeth J. Ryan*

Abstract: International adoption is a common occurrence in today’s society. In order to address the dangers linked with international adoption such as baby trafªcking, the members of the Hague Conference on Pri- vate International Law produced the Hague Convention on Intercountry Adoption in 1993, setting forth a minimum base of standards that every ratifying government must abide by, placing the best interests of the child above all other considerations. The United States, via the Intercountry Adoption Act of 2000, is well on its way to fully realizing the Hague Con- vention mandates. Romania, however, has struggled to care for its children and subsequently imposed an international adoption ban. This Note argues that the Hague Conference members need to amend the Hague Convention in order to implement assistance for countries that may struggle with its mandates. It also argues that, in order to avoid more nuanced problems in implementation, the Hague Convention should clarify its vague language. Finally, it should include appeals and enforcement procedures so that conºicts between two countries over an adoption proceeding can be dealt with by a third party.

Introduction On December 26, 2004, a tsunami devastated the coasts of Indo- nesia, India, Sri Lanka, Thailand, and seven other countries in South- east Asia;1 it killed an estimated 216,000 people.2 As media images of the tragedy deluged the Western world, adoption agencies began

* Elisabeth J. Ryan is the Senior Articles Editor for the Boston College International & Comparative Law Review. This Note is for her cousin Lily. 1 See, e.g., Michael Elliott, Sea of Sorrow, Time, Jan. 10, 2005, at 31. 2 See, e.g., Tsunami Death Toll Is at Least 216,000, Star-Ledger (Newark, N.J.), Dec. 27, 2005, at 21, available at 2005 WLNR 21015950.

353 354 Boston College International & Comparative Law Review [Vol. 29:353

ªelding calls from concerned families eager to open their homes to children orphaned by the disaster.3 As well-meaning as such people were, however, international adoptions in times of crisis are completely unrealistic, as well as extremely ill-advised.4 Initially, intercountry adoptions in the United States depend not only on the law of the child’s originating country but also on the law of the receiving family’s state, and federal immigration law.5 The process can take several years of paperwork, investigation, home study, and other administrative matters.6 Additionally, there are extensive restrictions on who can adopt children as well as which children can be adopted.7 The ªnancial expense also can be enormous, averaging $10,000-$30,000 without any major obstacles.8 However impractical the rush of adoption interests may be after a disaster such as the 2004 tsunami, it is not a new phenomenon, and it arises most every time a political crisis or national disaster brings images of forlorn children to the forefront.9 In particular, after Romanian Communist dictator Nicolae Ceausescu was overthrown and executed in December 1989,10 popular television shows such as ABC’s “20/20”11 and CBS’s “60 Minutes”12 broadcasted horrifying images of thousands of children living in orphanages marked by grossly inhumane conditions.13 The result of the graphic media coverage was a deluge of calls to adoption agencies from people wanting to rescue the suffering children.14

3 See Siri Agrell, ‘I Saw This Kid on TV, That’s the Kid I Want’: Agencies Besieged by Calls, Nat’l Post (Can.), Jan. 14, 2005, at A3, available at 2005 WL 59969520. 4 See Steve Friess, Adoption Not Best Way to Help Victims Now, Experts Say, USA Today, Jan. 10, 2005, at 4A, available at 2005 WLNR 335847. 5 See Elizabeth Bartholet, International Adoption: Propriety, Prospects, and Pragmatics, 13 J. Am. Acad. Matrim. Law. 181, 186 (1996); Bridget M. Hubing, Student Article, Interna- tional Child Adoptions: Who Should Decide What Is in the Best Interests of the Family?, 15 Notre Dame J.L. Ethics & Pub. Pol’y 655, 684–90 (2001). 6 Bartholet, supra note 5, at 189. See generally Stephen Lewin, Adoption of Children from Outside of the United States, in Litigation and Administrative Practice Course Hand- book Series 287, 287 (Practicing Law Institute 2004), available at 199 PLI/Crim 287 (describing the step-by-step procedures and requirements for an adoption in the United States of a child located in another country). 7 See e.g., Lewin, supra note 6, at 296–304; Hubing, supra note 5, at 666–73. 8 Bartholet, supra note 5, at 190. 9 See Agrell, supra note 3. 10 Steven Kreis, Lectures on Twentieth Century Europe: Nicolae Ceausescu, 1918–1989 (2004), http://www.historyguide.org/europe/ceausescu.html. 11 See Hubing, supra note 5, at 657 n.3, 658 n.9. 12 See Bartholet, supra note 5, at 200 n.44. 13 Id. at 201; Agrell, supra note 3. 14 Agrell, supra note 3. 2006] The Hague Convention on Intercountry Adoption 355

But while times of political and social crises tend to peak interest in (and provide extensive media coverage of) international adoptions, such adoption is a common and everyday practice among dozens of nations.15 Countries involved in the increasing instances of such international adoptions have expressed concerns such as who can adopt children, which children can be adopted, and what constitutes the best interests of such children.16 The countries have also faced additional fears about baby selling on the black market, either to people desperate for a child, or more sinisterly, to people looking to trafªc children into slave labor, prostitution, or pornography.17 Almost 20,000 girls under the age of sixteen are sex slaves in Cambodia; 200,000 children in West and Central Africa are enslaved into forced labor, and between 18,000–20,000 individuals (which includes adults and children) are trafªcked into the United States every year.18 As recently as November 2004, the British press reported that undercover investigators in Romania took mere minutes to ªnd parents willing to sell their babies outright for as little as 500 Euros (approximately $663).19 This threat of child trafªcking is especially acute in the tsunami- ravaged countries.20 The Indian government instituted a ban on all international adoptions beginning on January 5, 2005, after widespread concerns that adoption amidst the tsunami rebuilding efforts might provide a cover for snatching children in order to force them into cheap labor in factories or into the sex trade.21 Additionally, such children faced enormous trauma during and after the disaster, and uproot-

15 See Lewin, supra note 6, at 291. 16 See Hubing, supra note 5, at 666–68. 17 See Jay Shankar, Call for Adoption Ban to Save Indian Tsunami Orphans from Trafªckers, Agence France-Presse (Fr.), Jan. 6, 2005, available at 1/6/05 AGFRP 11:21:00 [hereinafter Call For Adoption Ban]; Cindy Sui, China’s Unspoken Shame: Parents Are Chief Culprits in Baby Trafªcking, Agence France-Presse (Fr.), Feb. 10, 2005, available at 2/10/05 AGFRP 13:08:00 [hereinafter China’s Unspoken Shame]; EU: Frattini Announces Crackdown on Human Trafªcking, ANSA-Pol. & Econ. News Serv., Dec. 22, 2004, available at 2004 WL 103595532. 18 See Linda Smith & Mohamed Mattar, Creating International Consensus on Combating Trafªcking in Persons: U.S. Policy, the Role of the UN, and Global Responses and Challenges, 28 Fletcher F. World Aff. 155, 158–59 (2004). 19 The European Capital Where Babies Can Be Bought for Just £350, W. Daily Press (Eng.), Nov. 23, 2004, at 8, available at 2004 WL 64463905. 20 See, e.g., Call For Adoption Ban, supra note 17. 21 Id.; Eva C. Komandjaja, Govt. Bans Adoption to Protect Orphans, Jakarta Post (In- don.), Jan. 5, 2005, at 2, available at 2005 WLNR 132347. 356 Boston College International & Comparative Law Review [Vol. 29:353 ing them to face a new family and surroundings so quickly would only add onto that stress and psychological damage.22 To address all the concerns surrounding international adoption, sixty-eight countries convened in 1993 to draft the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention),23 the ªrst treaty establishing minimum standards in international adoption procedures.24 Despite this major step to regulate intercountry adoptions, however, the Hague Conven- tion falls far short of ensuring the best interests of children involved in international adoptions.25 Part I of this Note discusses the general history of international adoption, with particular focus on the development of the Hague Con- vention on Intercountry Adoption, the status of children in Romania, and the status of international adoption in the United States. Part II focuses on the major aspects of the Hague Convention, as well as the failure of Romania to implement the Hague Convention, and the United States’ imminent success in doing so. Part III argues that the Hague Convention signatory countries should take a more active role in ensuring that the Hague Convention is carried out where it is most needed, speciªcally in countries like Romania. It also highlights the need for the Hague Convention to be amended in order to clarify certain aspects of language, as well as institute an appeals process so that countries like the United States can fully beneªt from the Hague Con- vention.

I. History and Background

A. Competing Viewpoints on the Merits of International Adoption The United States and other wealthy, Western, industrialized nations with low birthrates and relatively small numbers of children in need of homes take in the largest number of internationally adopted children.26 These children are adopted from poor countries with high birthrates and huge numbers of homeless or institutionalized chil-

22 See Komandjaja, supra note 21. 23 Hague Convention on Protection of Children and Co-operation in Respect of Inter- country Adoption, May 29, 1993, S. Treaty Doc. No. 105-51, 32 I.L.M. 1134 [hereinafter Hague Convention]. 24 See id. intro, 32 I.L.M. at 1134. 25 See Bartholet, supra note 5, at 194–95. 26 Id. at 181. 2006] The Hague Convention on Intercountry Adoption 357

dren.27 Wealthy countries have seen a decrease in domestic adoptable children due to the availability of abortion, contraception, family planning education, and a reduced stigma against single parenting.28 In contrast, the home countries of internationally adopted children tend to be marred by political strife, war, and often devastating levels of poverty.29 Stark political and economic differences create a virtual supply- and-demand economy of children,30 but controversy nonetheless rages over the practice of international adoption.31 Critics condemn international adoption as exploitative,32 imperi- alistic,33 and detrimental to children because of the separation from their home culture and society.34 Supporters of international adoption, however, stress that the practice provides the only realistic opportunity for many children to have a permanent home and family.35 Both supporters and opponents rely on the best interests of the children to back up their views and arguments.36

B. History of the Hague Convention on Intercountry Adoption To address speciªc problems with international adoption—namely the creation of legally binding standards, a system of supervision to ensure observation of those legal standards, and communication and cooperation between authorities in both countries involved in any particular adoption—the Hague Conference of Private International Law (Hague Conference) produced the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption in

27 Id. at 182. 28 Id. at 181. 29 See id. at 182. 30 See Crystal J. Gates, Note, China’s Newly Enacted Intercountry Adoption Law: Friend or Foe?, 7 Ind. J. Global Legal Stud. 369, 376 (1999) (explaining that framing the international adoption debate in terms of supply-and-demand reduces the humanity of the children involved); Jacqueline Bhabha, Moving Babies: Globalization, Markets and Transnational Adoption, 28 Fletcher F. World Aff. 181, 182–83 (2004) (noting that it is more of a demand-driven economy, as the ample “supply” of children would exist independently). 31 Bartholet, supra note 5, at 183; see Kathleen Ja Sook Bergquist, International Asian Adoption: In the Best Interest of the Child?, 10 Tex. Wesleyan L. Rev. 343, 347 (2004); Hub- ing, supra note 5, at 663–66. 32 See Bartholet, supra note 5, at 182. 33 Hubing, supra note 5, at 660. 34 See Bartholet, supra note 5, at 182. 35 See id. at 182, 197. 36 See id. at 184. 358 Boston College International & Comparative Law Review [Vol. 29:353

May 1993.37 Participating in the deliberations were almost all thirty- eight Hague Conference Member States and thirty invited non- member states, chosen particularly because of their role in international adoption.38 Overall, the Hague Convention sought to establish that any international adoptions are in the best interest of the child, above everything else.39 The Hague Convention marked the ªrst major development of international minimum standards in intercountry adoption procedures.40 All states that sign the Hague Convention show an intention to ratify it, though no further action is necessary; those that do ratify the Hague Convention are then legally bound to apply it to their domestic and international laws.41 Just four years earlier, in 1989, the United Nations adopted the Convention on the Rights of the Child (CRC).42 The main philosophy of the CRC is that society has an obligation to meet the fundamental needs of children.43 These obligations include not only basics like health care and education, but also a range of social, political, and civil rights for all children.44 The CRC has reached almost universal ratiªcation, an unprecedented status for a human rights treaty.45 The CRC is purposely neutral, however, on adoption in general.46 Several traditionally “receiving” countries47 in international adoption, such as the United States, had lobbied for language that would have obligated all countries to take “appropriate measures to facilitate permanent adoption of the child.”48 Such language would seem to be harmonious with the rest of the document, which places a great deal of emphasis on the role of the family as the “fundamental group of

37 Hague Convention, supra note 23, intro., 32 I.L.M. at 1134; Sarah Sargent, Suspended Animation: The Implementation of the Hague Convention on Intercountry Adoption on the United States and Romania, 10 Tex. Wesleyan L. Rev. 351, 354–55 (2004). 38 Hague Convention, supra note 23, intro., 32 I.L.M. at 1134. 39 See Sargent, supra note 37, at 355. 40 Hague Convention, supra note 23, intro., 32 I.L.M. at 1134. 41 Sargent, supra note 37, at 354. 42 G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (Nov. 20, 1989), reprinted in 28 I.L.M. 1448 (1989) [hereinafter CRC]. 43 Rebeca Rios-Kohn, Intercountry Adoption: An International Perspective on the Practice and Standards, 1(4) Adoption Q. 3, 11 ( June 1998). 44 Id. 45 Id. at 4. 46 Id. at 14. 47 Countries in which foreign children tend to be adopted are known as “receiving” countries; countries from which children tend to be adopted are known as “sending” countries. See Bartholet, supra note 5, at 186. 48 Rios-Kahn, supra note 43, at 14. 2006] The Hague Convention on Intercountry Adoption 359

society and the natural environment for the growth and well-being of all [society’s] members and particularly children.”49 The UN member states, however, rejected language that would have explicitly cemented an obligation for nations to facilitate adoption because adoption was not the sole option for providing children with families.50 Addition- ally, some drafters emphasized that adoption frequently contravened the best interests of the child, and thus would have been inconsistent with the objective of the document to protect the rights of the child.51 The Hague Convention on Intercountry Adoption proved to be a more detailed consideration of dissenters’ objections to the CRC’s failure to facilitate international adoption.52 The Hague Convention addressed the need for legal processes to crack down on threats like falsiªcation of documents, abduction and sale of children, and unregu- lated organizations essentially running the adoption process.53 In the most basic sense, the agreement recognized a need for a minimum set of international standards governing international adoptions—rules that each participating state could examine, adopt, abide by, and be conªdent that other ratiªers were doing so as well.54

C. History of Child Welfare in Romania and the Country’s Role in International Adoption In few countries has the plight of orphans been as tragic or as pub- licized as in Romania.55 During Nicolae Ceausescu’s rule of Communist Romania beginning in 1944, he forced every woman to bear ªve children while simultaneously banning birth control and abortion,56 resulting in tens of thousands of unwanted babies being left in state institutions run by a government in which corruption was insidious.57 Since Ceausescu’s overthrow in 1989, approximately 30,000 Romanian children have been adopted worldwide,58 including some 8,300 by Ameri-

49 See CRC, supra note 42, pmbl. 50 See Rios-Kahn, supra note 43, at 14. 51 See id. 52 See id. at 15. 53 Id. 54 See id. at 15–16. 55 See Bartholet, supra note 5, at 200–01. 56 Margaret Liu, Comment, International Adoptions: An Overview, 8 Temp. Int’l & Comp. L.J. 187, 187 (1994). 57 See Noelle Knox, Orphans Caught in the Middle, USA Today, May 18, 2004, at D1, available at 2004 WL 58556956. 58 Romania: New Law Hinders Adoptions by Foreigners, ANSA-Eng. News Serv., Jan. 6, 2005, available at 1/6/05 ANSA 12:03:00 [hereinafter Romania: New Law]. 360 Boston College International & Comparative Law Review [Vol. 29:353 cans.59 An estimated 40,000 children, however, still remain in orphanages.60 After the media exposed the squalid conditions of Romania’s orphanages and institutions to the outside world, the country’s authorities undertook a supposed major overhaul to improve the lives of children.61 Signiªcant ªnancial contributions from foreign governments and various non-governmental organizations allowed immediate su- perªcial developments.62 The government made visible improvements to the physical institutions, including carpeting, televisions, and toys.63 While these improvements certainly contributed to better living conditions for children in the immediate sense, they proved to be short-lived and addressed public relations more than the root of the problem.64 Abject poverty, government mismanagement, and the lack of any coherent long-term strategy to improve the living standards of Romanian citizens remained serious problems.65 The Bucharest-based Institute for Researching the Quality of Life reported in 1993 that only 10.3% of Romanian children lived in decent conditions, while a staggering 56.6% lived in poverty.66 The severe economic difªculty of Romanian citizens may have been the primary reason that many children were abandoned by their families to orphanages, but numerous other factors also contributed.67 These include an increase in mothers under the age of twenty, ethnic origin (in particular, Roma families68 have had high birth rates, extremely low income, and high rates of delinquency), and limited access to any form of family planning.69 The Romanian government structure also contributed to high rates of abandonment due to a lack of social services and a policy in the ªrst years after 1989 that encouraged institutionalization of children.70

59 Knox, supra note 57. 60 Romania: New Law, supra note 58. 61 See Camelia Manuela Lataianu, Social Protection of Children in Public Care in Romania From the Perspective of EU Integration, 17 Int’l J.L. Pol’y & Fam. 99, 99 (2003). 62 See id. at 104. 63 Id. 64 See id. at 99. 65 See id. at 100. 66 Lataianu, supra note 61, at 100. 67 See id. 68 Roma are sometimes called Gypsies. B.A. Robinson, The Religion and Culture of the Roma, http://www.religioustolerance.org/roma.htm. 69 Lataianu, supra note 61, at 101. 70 Id. at 101. 2006] The Hague Convention on Intercountry Adoption 361

The newly democratic Romanian government repealed the law that prohibited abortion almost immediately after the overthrow of 1989, leading some to expect that the number of abandoned babies would decrease signiªcantly in the coming years.71 By 1994, however, the number of children residing in institutions had actually surpassed 1990 ªgures by 15%.72 When Romania was still under Communist control, the government required children to leave residential care at the age of eighteen, providing them with state jobs and housing, even though most of them lacked any employment qualiªcations.73 But after the Communist collapse, such children had virtually no chance of ªnding a job and being able to live on their own.74 Thus, most of them simply remained in institutions well after their eighteenth birthdays, despite the requirements of the law.75 The post-Ceausescu government initially encouraged international adoption, which contributed to a decrease in institutionalized children in the ªrst years of the 1990s.76 But then the government abruptly passed legislation severely limiting international adoptions, thus contributing to the startling rise in institutionalized children as shown in the 1994 ªgures.77 But by the mid-1990s, external events brought new changes to Romania.78 In 1993, the government signed an Association Agree- ment aimed at allowing it to become part of the European Union (EU).79 In order to bring membership into force, however, the EU placed four conditions on Romania, including recognition of democracy and human rights.80 The EU Commission Opinion on Romania’s Application for Membership declared that the condition of children in the country was a human rights priority.81 To this end, Romania became one of the ªrst three countries to sign and ratify the Hague Convention in 1994.82 Romania’s dual

71 See id. at 102. 72 Id. 73 See id. at 103. 74 Lataianu, supra note 61, at 103. 75 Id. 76 See id. 77 See id. 78 See id. at 112. 79 Id. 80 See Lataianu, supra note 61, at 112. The other conditions were a functioning market economy, a capacity to compete within the EU market, and an ability to adhere to the political, economic, and monetary aims of the EU. Id. at 112–13. 81 Id. at 113, 114. 82 Sargent, supra note 37, at 355. 362 Boston College International & Comparative Law Review [Vol. 29:353 commitment to the Hague Convention and to the EU’s requirements that children’s rights be prioritized seemed to be in harmony.83 But the goals eventually clashed, and pressure from the EU resulted in a ban rendering international adoption practically impossible.84

D. History of International Adoption in the United States The United States is the destination for nearly half of all internationally adopted children.85 Intercountry adoption was virtually non- existent until the aftermath of World War II, when members of the U.S. armed forces returned home with tales of children orphaned in the war-ravaged countries of Germany, Italy, Greece, and the rest of Europe.86 These orphans were largely white and “ªrst-world,” leading Americans to open their homes, willing for the ªrst time to provide a compassionate home for children victimized by world events.87 International adoption gained true widespread acceptance in the United States after the Korean War when U.S. GIs returned home having fathered stigmatized children overseas with Korean women.88 Some 38,000 Korean children were adopted in the United States from 1953–1981.89 In 1996, however, the Korean government (cementing a trend in policy that began in the 1970s) banned all international adoptions of Korean children by foreigners.90 Presently, most foreign-born children adopted in the United States are from China.91 Due to the ofªcial Chinese government policy of one child per family, thousands of Chinese babies—overwhelmingly female in a culture that values males over females—are abandoned each year, resulting in crowded institutional orphanages.92 The implications of the Hague Convention are particularly relevant to the United States

83 See Lataianu, supra note 61, at 107; Sargent, supra note 37, at 355. 84 See, e.g., Romania: New Law, supra note 58. 85 Hubing, supra note 5, at 660 (stating that out of estimated 20,000 international adoptions each year, nearly half involve U.S. citizens as the adoptive parents). 86 See id. at 661. 87 See Bergquist, supra note 31, at 344. 88 See id. at 343; Hubing, supra note 5, at 662. 89 Hubing, supra note 5, at 662. 90 See id. 91 Id. 92 Gabriela Marquez, Comment, Transnational Adoption: The Creation and Ill Effects of an International Black Market Baby Trade, 21 J. Juv. L. 25, 29–30 (2000); see China’s Unspoken Shame, supra note 17. 2006] The Hague Convention on Intercountry Adoption 363

because of the country’s extensive involvement in the practice of international adoption.93

II. Discussion

A. Major Aspects of the Hague Convention The most basic and vital purpose of the Hague Convention is to ensure that intercountry adoptions are made “in the best interests of the child.”94 Signiªcantly, it recognizes, for the ªrst time in an international agreement, that international adoption may itself be in the best interest of the child.95 The Hague Convention states that every child should grow up in a family environment, and that international adoption may be the only way to achieve this end for some children.96 Thus, the Hague Convention not only provides an avenue to ensure that international adoptions are safe and legal, but it also implicitly encourages international adoption over less beneªcial alternatives such as home-country institutionalization or even domestic adoption.97 The Hague Convention’s regulation of international adoption requires each ratifying country to undergo major internal changes in their international adoption processes.98 Because these changes encourage smooth and accountable procedures, they represent a clear endorsement of international adoption.99 The Hague Convention requires that each state party create a Central Authority to oversee all intercountry adoptions involving that state.100 Considering the time and resources required to institute these changes, international adoption necessarily takes a prominent place in the state’s social and political consciousness.101

93 See Hubing, supra note 5, at 660. 94 See Hague Convention, supra note 23, pmbl. 95 See id.; Bartholet, supra note 5, at 192; Bureau of Consular Affairs, U.S. Dept. of State, Hague Convention: Advantages and Provisions (2005), http://travel.state.gov/family/adoption/convention/convention_2300.html. 96 See Hague Convention, supra note 23, pmbl. 97 See id. pmbl., art. 1. 98 See id. arts. 6–13. Some of these changes are setting up a Central Authority, commu- nicating with other countries’ Central Authorities, and accrediting and monitoring adoption agencies. Id. 99 See id. Even though the Hague Convention never explicitly states this proposition, it is clear that, taken as a whole, the Convention endorses the practice of international adoption. See id. 100 Hague Convention, supra note 23, arts. 6–13. 101 Cf. Rios-Kohn, supra note 43, at 27 (noting that many countries do not actually have the resources to institute the changes). 364 Boston College International & Comparative Law Review [Vol. 29:353

The Central Authority’s duties are to ensure day-to-day compliance with the Hague Convention’s overall goal of serving the best interests of the children.102 The duties include preventing improper ªnancial gain in connection with an adoption,103 collecting and preserving information about each child and prospective adoptive parent(s),104 and facilitating the goal of adoption.105 To facilitate these operations, the Central Authority may delegate some responsibilities to other public authorities or other bodies.106 Once accredited, these bodies may only operate on a non-proªt basis, must be staffed by people qualiªed to work in international adoption, and are under the supervision of the Central Authority with respect to operation and ªnances.107 More speciªcally, the Central Authority for the country of the prospective parent(s) must determine eligibility and prepare a comprehensive report about the applicant(s).108 The Central Authority of the child’s home country must also determine adoptability and prepare a parallel report on the child.109 Each Central Authority must review the other’s report and agree on each speciªc adoption before it takes place.110 These requirements are signiªcant in international adoption, as they facilitate detailed communication between each involved country and ensure from the outset that an adoption can proceed.111 This eliminates the danger that a prospective parent may not meet the requirements or standards of the child’s home country, and thus be rejected after the investment of signiªcant time, money, and emotion in the process.112 Further, each Central Authority must take all necessary steps to ensure that the child can leave his or her home country and subsequently be able to enter and permanently reside in the parental country.113 Again, the fact that the Central Authorities are required to ensure emigration and immigration for the child eliminates the possibility

102 See Hague Convention, supra note 23, pmbl., art. 6. 103 Id. art. 8. 104 Id. art. 9(a). 105 Id. art. 9(b). 106 Id. art. 9. 107 Id. art. 11. 108 Hague Convention, supra note 23, art. 15. 109 Id. art. 16(1)(a). 110 See id. art. 17. 111 See id. art. 17. 112 Cf. Bartholet, supra note 5, at 186–90 (describing the negative implications of the current restrictive immigration laws in the United States). 113 Hague Convention, supra note 23, art. 18. 2006] The Hague Convention on Intercountry Adoption 365

that an almost-complete adoption will be halted in the last step due to conºicting or misunderstood laws between parties.114 The Hague Convention’s requirements for the creation and duties of each Central Authority thus signiªcantly streamline the process of international adoption and ensure full disclosure of information and compliance with each country’s laws.115 These basic, practical requirements advance the Hague Convention’s goal of facilitating international adoption in the child’s best interests.116 Even though these are only minimum requirements, their implementation raises serious questions about their enforceability and practicality.117 Roma- nia’s experience demonstrates those difªculties.118

B. Romania’s Failed Efforts to Comply with Both the Hague Convention and EU Membership Requirements In 1997, the Romanian government created the Department for Child Protection (DCP), with the goals of (1) creating a comprehensive, country-wide plan to monitor children’s rights and (2) developing internal legislation that would bring Romanian law into line with other countries.119 When the Romanian government began to undertake reforms in 1997, 98,872 children resided in institutions.120 Of these children, more than half had two known parents, but they were placed in institutions along with actual orphans because they had had no contact with either parent for at least six months.121 The DCP implemented a new philosophy for institutions (renamed “placement centres”) ostensibly to recognize and observe the rights of every child, to provide a familial atmosphere for children, to integrate the center as a part of the local community, to train staff professionally, and to reduce the number of children living in residential care.122

114 See Bartholet, supra note 5, at 186–90. 115 Compare Hague Convention, supra note 23, arts. 6–22 (focusing, as a whole, on sim- plifying and centralizing international adoptions), with Lewin, supra note 6, at 292–319 (setting out the currently complex and intricate process of international adoption in the United States). 116 See Hague Convention, supra note 23, art. 1(a). 117 See Bartholet, supra note 5, at 194–95; Notesong Srisopark Thompson, Note, Hague Is Enough?: A Call For More Protective, Uniform Law Guiding International Adoptions, 22 Wis. Int’l L.J. 441, 443 (2004). 118 See infra notes 119–69 and accompanying text. 119 See Lataianu, supra note 61, at 107. 120 Id. at 108–09. 121 See id. at 109. 122 Id. 366 Boston College International & Comparative Law Review [Vol. 29:353

Despite these admirable and well-intentioned goals, implementation has been difªcult.123 The decentralization meant that local authorities were responsible for funding, resulting in vast differences between institutions across the country that depended on local ªnancing.124 The local authorities also disagreed on the priority to be given to child welfare reform in their respective budgets.125 Universities only re-established degree programs in social work and therapy training in 1990, thus hindering the goal of professionalized staff—arguably one of the most important aspects of the reform, as it sought to provide trained social workers, nurses, and teachers.126 The need for individuals specialized in these areas thus exceeded the supply, which was wors- ened by the fact that salaries in institutions were very low.127 In view of the fact that Romania was one of the ªrst to ratify the Hague Convention, the DCP could logically have been structured as Romania’s Central Authority.128 The country ignored this aspect of the Hague Convention, however, and arguably ignored the overall goal of facilitating international adoption at all, by proposing the relatively drastic measure of de-centralizing orphanage and institutional care for children, essentially leaving control to local authorities.129 Thus, while Romania was focused on satisfying the European Un- ion’s mandate that children’s rights be made a priority, it failed to facilitate international adoption procedures as part of these rights.130 Romania essentially disregarded the obligations it had pledged to respect by signing the Hague Convention.131 Rather than recognize international adoption as an integral part of developing a child welfare program, Romania solely concerned itself with satisfying the EU’s requirements of having an adequate domestic child care system.132 Due to the dire status of institutionalized children in Romania, the Romanian government, with the apparent support of the EU, may have

123 Id. at 111. 124 See id. 125 See Lataianu, supra note 61, at 111. 126 See id. at 101, 111. 127 Id. at 111. 128 See id. at 107 (describing that the DCP had originally been conceived to comply with the Hague Convention but failed in actuality because one of its central tenets was decentralization). 129 See id. at 108, 111. 130 See id. at 112–19 (describing the multiple changes that the Romanian government made to its child welfare system, none of which complied with the Hague Convention). 131 See Sargent, supra note 37, at 365–66. 132 See Lataianu, supra note 61, at 115 (offering an example of a rushed action focusing only on meeting EU requirements). 2006] The Hague Convention on Intercountry Adoption 367

viewed overhauling its internal child welfare program as the most important step in its human rights compliance project.133 This view, however, was shortsighted.134 Both the Romanian government and the EU should have recognized that the obligation to comply with the Hague Convention was not a separate, external step to be dealt with later but a means of enhancing the welfare of Romania’s children as a whole.135 Perhaps if Romania and the EU had explicitly recognized international adoption as an integral aspect of improving children’s welfare, the program would have had a better chance at success.136 Instead, because of the virtual ban on international adoption ofªcially imposed in 2005, the goals of the Hague Convention have not been met.137 In 1997 and 1998, the EU Commission praised Romania’s progress and implementation of de-centralization and improved forms of care.138 The EU status report noted encouraging evidence that more children were being re-integrated into their families or adopted by foster parents.139 In 1999, however, the annual report bluntly stated that living conditions in all child care institutions had seriously deteriorated in only a year, and that the institutions’ basic infrastructure, hygiene, medical care, nutrition, and general assistance were unacceptable.140 The report mandated that the Romanian government give top priority to child protection and take back primary responsibility from local authorities to ensure the welfare of children in residential institutions.141 The report explicitly stated that the government needed to improve food, medical services, clothing, heating, and staff.142 Yet the EU failed to note that a comprehensive system for international adoption could greatly help Romanian orphans.143 Perhaps the EU Commission felt that a government that was incapable of providing

133 See id. at 112–14. 134 See id. at 115. 135 See id. at 112; see also Bartholet, supra note 5, at 200–01 (emphasizing that the real focus should be on getting children out of institutions and into families). 136 See Lataianu, supra note 61, at 107–20. 137 See Hague Convention, supra note 23, pmbl., art. 1; Romania: New Law, supra note 58. 138 See Lataianu, supra note 61, at 113. 139 European Commission, Regular Report from the Commission on Romania’s Progress Toward Accession 10 (1998), http://europa.eu.int/comm/enlargement/report_ 11_98/pdf/en/romania_en.pdf [hereinafter 1998 Regular Report]. 140 European Commission, 1999 Regular Report from the Commission on Romania’s Progress to Accession 15 (1999), http://europa.eu.int/comm/enlargement/report_ 10_99/pdf/en/romania_en.pdf [hereinafter 1999 Regular Report]. 141 Id. at 16. 142 Id. 143 See id. 368 Boston College International & Comparative Law Review [Vol. 29:353 such basics as clean facilities and adequate food for children could not implement an additional program.144 It is more likely, though, that the EU simply failed to emphasize the important role of international adoption in improving the lives of children by removing them from substandard institutional care and into the homes of loving families, as the Hague Convention had emphasized several years earlier.145 Regardless, with the admonishment jeopardizing its EU membership bid, the Romanian government created a new agency, the Na- tional Agency for the Protection of the Child’s Rights.146 The Agency did adopt new goals for child welfare—improving parental responsibility, discouraging abandonment, supporting families in difªculty, and bringing greater transparency to adoption.147 While this new agency could have functioned as a Central Authority under the Hague Convention, the government again failed to speciªcally address international adoption, thus failing to take the Hague Convention objectives fully into account.148 The 2000 EU Commission report ªnally addressed the adoption issue, expressing particular concern that Romania’s legislation governing adoption practices allowed considerations other than the best interest of the child to inºuence adoption decisions.149 The Roma- nian government responded to this negative report by placing its children’s agency directly under the Secretary General, which the EU Commission subsequently praised as an important development in dealing with children’s issues.150 Almost immediately afterwards, however, Romania suspended all intercountry adoptions.151 Unfortunately, the EU Commission praised this moratorium as “a mechanism to end practices that were incompatible with Romania’s international obligations.”152 Instead of recognizing that international

144 See id. at 15–16. 145 See Hague Convention, supra note 23, pmbl.; 1999 Regular Report, supra note 140, at 15–16. 146 Lataianu, supra note 61, at 114. This agency was created within just two months of the EU report. Id. 147 See id. at 116. 148 See id. 149 European Commission, 2000 Regular Report from the Commission on Romania’s Progress to Accession 20 (2000), http://europa.eu.int/comm/enlargement/report_ 11_00/pdf/en/ro_en.pdf [hereinafter 2000 Regular Report]. 150 See Commission of the European Communities, 2001 Regular Report from the Commission on Romania’s Progress to Accession 24 (2001), http://europa.eu.int/ comm/enlargement/report2001/ro_en.pdf [hereinafter 2001 Regular Report]. 151 See id. 152 See id. 2006] The Hague Convention on Intercountry Adoption 369

adoption could have provided a welcome alternative to the lives many children faced in Romanian institutions, the EU focused on the re- duction in opportunities for child trafªcking and other abuses.153 While these are legitimate concerns, of course, the EU could have encouraged a system to regulate them within a ºuid system of adoption, rather than closing off the beneªts of adoption in favor of none at all.154 The moratorium was intended as a temporary measure to allow the Romanian government to institute new procedures of international adoption.155 Yet, even before legislative reforms could be seriously considered, Emma Nicholson, the European Union’s special envoy to Romania, harshly criticized the country for its persistent abandonment of children, child abuse and neglect, child trafªcking, and particularly, international adoption’s role in contributing to these dangers.156 Nicholson determined in 2004 that Romania was simply not respecting the moratorium that it had imposed on itself three years earlier.157 When, in February 2004, the Italian government announced publicly that Romania had sent 105 children to its country under dubious pretexts, the EU issued a warning to Romania to halt all international adoption in violation of the moratorium or face an end to its EU membership bid and a loss of all ªnancial aid.158 In light of this criticism, Italian ofªcials reversed their initially negative stance, defending the 105 adoptions by Italian families as humanitarian and in the best interests of the children.159 But these adoptions were only part of the picture.160 Romania may have sent as many as 1000 adoptees abroad in contravention of the 2001 ban, although only Italy spoke openly, thus allowing the EU to take a clear stand

153 See id. 154 See id. at 24–25 (noting that the EU favored no adoptions until they could be in the best interests of the child). 155 See Sargent, supra note 37, at 370. 156 See Adoptions Suspended After Critical Report, San Jose Mercury News, June 22, 2001, at 4A, available at 2001 WLNR 1511660; Ambrose Evans-Pritchard, Stop Child Exports or Face Ban, EU Tells Romania, Daily Tel. (Eng.), Feb. 4, 2004, at 15, available at 2004 WL 68215850. 157 See Evans-Pritchard, supra note 156. 158 See id. 159 See Italy Condemns “Unjustiªed” Criticism of Romania on Child Adoptions, BBC Moni- toring Eur., Feb. 5, 2004, available at 2004 WL 63906111. 160 See Baby Trade—Doubtful Adoptions of Romanian Children, Economist (Eng.), Feb. 7, 2004, available at 2004 WL 62016788. 370 Boston College International & Comparative Law Review [Vol. 29:353 against Romania’s membership if the adoption system was not cleaned up.161 In response, Romania passed legislation in June 2004 that re- placed the apparently ignored moratorium with, in effect, an outright ban on all international adoptions of Romanian children.162 The government passed the legislation in the face of opposition by the United States, which favored a lifting of the moratorium and staunchly opposed a permanent adoption ban.163 The U.S. ambassador to Bucha- rest described the law as a “tragedy,” as it would bar thousands of families from legitimately adopting some of the 40,000 orphans in Romania thereby providing them with a high standard of living within the United States.164 Nonetheless, the law came into force on January 1, 2005.165 The United States is still ªercely ªghting the law—in No- vember of 2005, Rep. Chris Smith of New Jersey introduced legislation in the House of Representatives that urged Romania to reform its adoption policies in order to allow international adoption for institutionalized children.166 And, indeed, the ban has left thousands of Romanian orphans—many of them infants under the age of two—in an indeªnite institutional limbo.167 In essence, Romania has ignored the obligations it assumed upon ratiªcation of the Hague Convention.168 The EU has assisted this abro- gation by supporting a ban on international adoption, when it should have, and could have, helped Romania develop an honest and effective system of international adoption looking to the best interests of children.169

161 See id. 162 Ian Traynor, Romania Bans Adoptions in Other Countries, Guardian (Eng.), June 16, 2004, at 17, available at 2004 WL 75688211. 163 See id. 164 See Harry de Quetteville, EU Forces Romania Into Ban on Foreign Adoptions, Daily Tele. (Eng.), June 17, 2004, at 13, available at 2004 WL 82001243. 165 Adoptions: Romania Conªrms Draconian Measures, ANSA-Eng. News Serv., Jan. 15, 2005, available at 1/15/05 ANSA 14:03:00. 166 U.S. Fed. News, Rep. Smith’s Legislation Urges Romania to Immediately Reform Harmful Adoption Policies, Nov. 18, 2005, available at 2005 WLNR 18709200. 167 Elisabeth Rosenthal, Romanian Law Backªres, Leaving Orphans in Limbo, N.Y. Times, June 23, 2005, at A6, available at 2005 WLNR 9934194. 168 See Sargent, supra note 37, at 355. 169 See 2001 Regular Report, supra note 150, at 24–25. 2006] The Hague Convention on Intercountry Adoption 371

C. Hague Convention Implementation in the United States In stark contrast to Romania’s inaction on its Hague Convention responsibilities, the United States has taken signiªcant steps to implement the treaty.170 The United States signed the Hague Convention on March 31, 1994, but it has not yet ratiªed it.171 The Department of State is in the process of readying implementation as of March 2006, and will presumably ratify the Hague Convention upon completing implementation.172 When the United States does ratify the Hague Convention, its readiness to implement it should be far better than that of Romania.173 Romania hastily ratiªed the Hague Convention without any implementation measures in place, and the social and political atmosphere surrounding the treatment of children and adoption is radically different from that of the United States.174 One obvious difference between the two countries is the fact that the United States is a “receiving” country for international adoption, whereas Romania is a “sending” country.175 The primary focus of the United States is thus not in facilitating adoption of its children but in preparing prospective parents to adopt children internationally.176 The United States began its preparation for Hague Convention implementation in 1998, under President Clinton.177 Within two years, Congress passed The Intercountry Adoption Act of 2000178 and authorized the United States to ofªcially ratify the Hague Conven- tion.179 The Intercountry Adoption Act (IAA) provides for implemen-

170 See Sargent, supra note 37, at 372–77. 171 Hague Conference on Private International Law, Status Table, Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adop- tion (2006), http://www.hcch.net/index_en.php?act=conventions.status&cid=69. 172 See Bureau of Consular Affairs, U.S. Dept. of State, Hague Convention on Intercoun- try Adoption and the Intercountry Adoption Act of 2000: Background (2006), http:// travel.state.gov/family/adoption/convention/convention_2290.html [hereinafter HC and IAA Background]. 173 Compare Lataianu, supra note 61, at 107–08 (describing the ongoing problems that Romania had with its child welfare system), with Lewin, supra note 6, at 292–319 (describing the current U.S. process of international adoption that is, though complicated, fully in place and part of the U.S. legal system). 174 See Lataianu, supra note 61, at 112–14; Lewin, supra note 6, at 322; Sargent, supra note 37, at 355. 175 See Bartholet, supra note 5, at 186, 201. 176 See Thompson, supra note 117, at 446. 177 See HC and IAA Background, supra note 172. 178 Intercountry Adoption Act of 2000, 42 U.S.C. § 14901–14954 (2000). 179 See HC and IAA Background, supra note 172. 372 Boston College International & Comparative Law Review [Vol. 29:353 tation of all the major Hague Convention requirements.180 It designates the Department of State as the Central Authority,181 with the Secretary of State responsible for ensuring that the Central Authority functions in compliance with the Hague Convention.182 The IAA resolves many of the major obstacles that prospective U.S. parents had previously faced in the process of international adoption.183 These obstacles include unclear and narrow deªnitions about who qualiªes as an adoptable “orphan,”184 complex immigration procedures,185 and varying state-speciªc adoption laws.186 Without the Hague Convention’s mandate of a Central Authority with speciªc duties to ensure streamlined immigration procedures, the United States probably would not have implemented federal legislation like the IAA.187 Traditionally, adoption is governed speciªcally by individual states.188 Immigration procedures, on the other hand, are within the jurisdiction of the federal government, and so federal legislation was necessary to govern international adoptions.189 The IAA, as of March 2006, is yet to be fully implemented, though in February 2006, the United States took a signiªcant step towards implementation by ªnalizing the rules governing the accredita- tion of adoption agencies.190 The IAA can be expected to have, along with the Hague Convention itself, a dramatic and welcome impact on U.S. procedures, as compared to the current immigration process for foreign-born adoptees in the United States.191 Currently, unless the Citizenship and Immigration Service (formerly the Immigration and Naturalization Service) grants a child en- tering the United States either status as a citizen or as a Legal Perma- nent Resident,192 a child cannot enter and thus cannot reside in the

180 See id.; supra notes 37-55. 181 42 U.S.C. § 101(a)(1). 182 See id. §§ 101(a)(2), 102. 183 See Bartholet, supra note 5, at 187–90. 184 See id. at 187–88. 185 See Lewin, supra note 6, at 294–307. 186 See Hubing, supra note 5, at 690. 187 See Bartholet, supra note 5, at 195. 188 See Lewin, supra note 6, at 292. 189 See id. 190 Press Release, Bureau of International Information Programs, U.S. Dept. of State, State Department Issues Final Rules on Intercountry Adoption (Feb. 16, 2006), http:// usinfo.state.gov/xarchives/display.html?p=washªle-english&y=2006&m=February&x=2006 0216142905mvyelwarc0.1766016&t=livefeeds/wf-latest.html [hereinafter Final Rules Press Release]. 191 See Lewin, supra note 6, at 292–307. 192 See id. at 291. 2006] The Hague Convention on Intercountry Adoption 373

country with his or her adoptive parents.193 A child who is a foreign national and is adopted in his or her home country by a U.S. citizen or citizens is not currently automatically entitled to emigrate to the United States, nor is he or she entitled to naturalization as a U.S. citizen.194 The adoptive parents must petition to have the child desig- nated as an orphan.195 Under U.S. law, the child must be under age sixteen, with parents who have died, abandoned the child, or are incapable of caring for him or her.196 Though this deªnition of orphanage seems comprehensive and simple, if the child’s own country of origin deªnes an “adoptable” child differently, the United States might deny entry or citizenship to a child who was legally adopted in his foreign home country but does not meet all the requirements of an “orphan” under U.S. law.197 For example, some foreign countries permit a sole parent to “release” a child for adoption, but the United States requires that such release be irrevocable and speciªcally note that the child is to emigrate to the United States.198 The United States further requires evidence that a sole parent is unable to care for the child’s basic needs, measured by the local standard in the home country.199 Thus, if the child has two known parents (in a married or familial relationship) who wish to surrender the child because of inability to provide him or her with basic care, the United States will not consider that child an orphan and thus will not permit the child to emigrate to the United States.200 Similarly, the United States will consider a child abandoned if two parents have unconditionally given him or her up to a state-run orphanage but not if the birth parents have “surrendered” the child to prospective adoptive parents.201 The IAA speciªcally addresses these complex issues by requiring, before the adoption takes place, that the Central Authority be responsible for ensuring that a particular child will be able to emigrate legally to the United States.202 The Central Authority, working directly with its counterpart authority in the child’s country of origin, will be

193 See id. at 292. 194 Id. 195 See id. 196 See Immigration and Nationality Act, 8 U.S.C § 1101(b)(1)(F)(i) (2005). 197 See Lewin, supra note 6, at 300–04. 198 See id. at 301. 199 Id. 200 Id. 201 See id. at 302–03. 202 See 42 U.S.C. § 301. 374 Boston College International & Comparative Law Review [Vol. 29:353 able to clarify that country’s laws and rules for qualifying children as “adoptable,” and thus ensure that each adoption by a child outside of the United States will comply with U.S. immigration laws.203 Further, the IAA radically simpliªes the ªnal process by requiring that any adoption ªnalized in another country—which necessarily must take place under the Central Authority—will be recognized as a ªnal, valid adoption for all purposes of federal and state law.204 This eliminates the unnecessary barrier between an adoption and a child’s ability to live with his or her legal parents in the United States.205 In sum, the United States, as a result of all its preparation and its prominent participation in international adoptions, should be able to implement the Hague Convention with relative ease.206 Existing struc- tures and procedures will be altered to simplify the process and provide centralized accountability, as the Hague Convention envisioned in its overall goal of facilitating international adoptions for the best interests of children.207 The United States has fully embraced the Hague Con- vention and readied its laws and processes accordingly.208 This is dia- metrically opposed to Romania’s complete failure to do the same.209

III. Analysis

A. Problems with the Hague Convention, As Seen by the Situation in Romania While the Hague Convention represents a signiªcant step towards ensuring minimum standards in regulation of international adoption, it does not go far enough.210 Romania quickly signed and ratiªed the treaty, pledging acceptance of its theory and requirements.211 The Ro- manian government, however, never made signiªcant steps towards any sort of implementation.212 More importantly, the government never seemed to embrace the basic premise of the Hague Convention that

203 See Hague Convention, supra note 23, arts. 17, 18. 204 See 42 U.S.C. § 301(2)(b). 205 See Lewin, supra note 6, at 292–94. 206 See Hubing, supra note 5, at 660; Bureau of Consular Affairs, U.S. Dept. of State, Preparations for U.S. Implementation of the Hague Convention (2005), http://travel. state.gov/family/adoption/convention/convention_2332.html [hereinafter Preparations]. 207 See Hague Convention, supra note 23, pmbl., art. 1(a); Preparations, supra note 206. 208 See generally 42 U.S.C. § 14901–14954; Preparations, supra note 206. 209 See Bartholet, supra note 5, at 201. 210 See id. at 194–95; Sargent, supra note 37, at 378–80. 211 See Sargent, supra note 37, at 355, 380. 212 See id. at 380. 2006] The Hague Convention on Intercountry Adoption 375

international adoptions can serve the best interests of children.213 As a ratiªer of the Hague Convention, Romania continues to have a legal obligation to abide by its terms.214 The European Union is in a unique position to ensure that Ro- mania abides by these obligations.215 Since its initial application to enter the EU, Romania has demonstrated its willingness to follow the EU’s recommendations and requirements.216 But while nineteen of the EU’s twenty-ªve member states have signed the Hague Conven- tion,217 the EU’s support of a virtual outright ban on international adoption in Romania misinterprets the proposition at the heart of the Hague Convention.218 Although the EU has correctly mandated that Romania ensure child welfare and rights as a condition of its admission, its focus on the conditions of institutionalized children and a ban on international adoption means that the EU is effectively only addressing a fraction of the whole problem.219 Institutionalized children unquestionably need a clean, healthy, and supportive environment,220 but the EU should recognize that the goal should be to have as few children in institutions as possible.221 This can be achieved by four means: preventive measures to reduce the number of abandoned children;222 efforts to reunite children with their families;223 domestic adoption;224 and international adoption.225 By foreclosing the option of international adoption, Romania, with the support of the EU, is effectively keeping more children in institutions than need to be.226 By focusing on the threat of child trafªcking, the EU is seeing only the negative potential of international adoption and is ignoring its positive potential.227 The EU should exert its con-

213 See Bartholet, supra note 5, at 201. 214 See Hague Convention, supra note 23, arts. 43–48; Sargent, supra note 37, at 354. 215 See 1998 Regular Report, supra note 139; 1999 Regular Report, supra note 140; 2000 Regular Report, supra note 149; 2001 Regular Report, supra note 150 (showing that the EU is in a position of authority over Romania because of Romania’s membership bid). 216 See 2001 Regular Report, supra note 150, at 24. 217 See Hague Convention, supra note 23, intro., 32 I.L.M. at 1139. 218 See id. pmbl.; 2001 Regular Report, supra note 150, at 24–25 (showing that the EU supports a moratorium for the best interests of the children). 219 See 2001 Regular Report, supra note 150, at 24–25. 220 See 1999 Regular Report, supra note 140, at 15. 221 See Bartholet, supra note 5, at 196–97. 222 See Lataianu, supra note 61, at 101, 116. 223 See Sargent, supra note 37, at 368. 224 See id. 225 See Bartholet, supra note 5, at 210. 226 See id. at 201. 227 See id. at 185. 376 Boston College International & Comparative Law Review [Vol. 29:353 siderable power over Romania by shifting its position in favor of the ban on international adoption to a full and comprehensive effort to put a workable system of international adoption into place.228 Only by the EU initiating a move in this direction will the children of Romania be given a full opportunity to “grow up in a family environment, in an atmosphere of happiness, love and understanding,” as the Hague Convention implies is their fundamental human right.229 The members of the Hague Conference can help facilitate this change by publicly supporting the European Union to change its position.230 Because Romania has pledged its allegiance to the Hague Con- vention and yet has failed to recognize its obligations even minimally, the Hague Conference members should be obligated to help rectify the situation.231 A public declaration by the member states would demon- strate solidarity with each other, saying that they are invested in the re- alization of the Hague Convention, regardless of whatever difªculties a particular country may encounter in its implementation.232 Additionally, UNICEF, the United Nations Children’s Fund, would be in a powerful position to advocate for this position.233 UNICEF has staunchly advocated that children unable to remain in and be raised by their natural family should be placed in alternative family settings rather than institutional care.234 It has acknowledged international adoption as the best alternative in certain situations and has strongly supported the Hague Convention’s focus on ensuring that such adoptions proceed in the best interests of the child.235 With the support of a major, internationally recognized children’s advocacy organization, a potential EU quest to carry out the best interests of Romania’s children by requiring the country to institute a workable system of international adoption would have a good chance of success.236

228 See Bartholet, supra note 5, at 210; cf. 2000 Regular Report, supra note 149, at 20; 2001 Regular Report, supra note 150, at 24–25 (demonstrating that the EU wields considerable power over Romania because of the country’s membership bid, and that Roma- nia is thus willing to act on the EU’s suggestions). 229 See Hague Convention, supra note 23, pmbl. 230 See generally Hague Convention, supra note 23. 231 See generally id. 232 Cf. Bartholet, supra note 5, at 194–95 (demonstrating that implementation of the Hague Convention might be uneven across countries and that many countries may struggle with its mandates). 233 See Rios-Kohn, supra note 43, at 27. 234 See UNICEF, UNICEF’s position on Inter-country adoption, http://www.unicef.org/ media/media _15011.html (last visited Apr. 11, 2006). 235 See id. 236 See Rios-Kohn, supra note 43, at 27. 2006] The Hague Convention on Intercountry Adoption 377

The Hague Conference should also consider further amending the Hague Convention to institute implementation assistance.237 By including non-member states in drafting the Hague Convention, the Hague Conference recognized the special role that some countries play in international adoption.238 These countries, like Romania, represent largely “sending” countries in international adoption proceedings, yet they also tend to have the most unstable or ill-equipped governments, making implementation of the Hague Convention exceedingly difªcult.239 For the Hague Convention goals to be realized, each country must domestically institute its requirements.240 While it is, of course, a fundamental principle of international sovereignty that each country determine how to govern and institute international treaties independently, the Hague Convention should be amended to provide for a committee to develop a plan that would guide and assist these countries in realizing the Hague Convention requirements.241

B. Problems with the Hague Convention as Evidenced by the United States Clearly, a country like the United States is able to institute the requirements of the Hague Convention and easily adhere to its broad, overall goals and procedures.242 Once the United States ofªcially ratiªes the Convention and brings the IAA into full effect, however, its international adoption procedures could highlight the Hague Con- vention’s smaller, more nuanced problems.243 The Hague Convention lacks deªnitions of certain terms that could result in serious disputes.244 Most signiªcant, and potentially most disputative, is the Hague Convention provision stating that “[t]he recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child” (emphasis added).245 Without a deªnition of what might be “manifestly contrary” to public policy, the provision allows wide discretion for a country to deªne its own stan-

237 See id. at 26–27. 238 See Hague Convention, supra note 23, intro., 32 I.L.M. at 1139. 239 See Rios-Kohn, supra note 43, at 27. 240 See Bartholet, supra note 5, at 194–95. 241 See Thompson, supra note 117, at 466–67. 242 See id. at 457. 243 See id. at 462–67. 244 See id. at 463–66. 245 See Hague Convention, supra note 23, art. 24. 378 Boston College International & Comparative Law Review [Vol. 29:353 dards.246 Yet the inclusion of the qualifying word “manifestly,” rather than simply “contrary to public policy,” seems to set up a heightened standard.247 Additionally, the phrase “taking into account the best interests of the child” adds to this sense that the Hague Convention is restricting a country’s total discretion to deªne its own terms.248 The Hague Convention, however, includes no review or appeals process for adoption cases rejected by one country on public policy grounds.249 Thus, the addition of the qualifying and seemingly restrictive phrases may have no force whatsoever; if a country decides to reject an adoption on the grounds that it is contrary to public policy, the prospective adoptive parents and the other contracting country have no means of redress.250 Questions also remain about what adoptions may be considered contrary to public policy. Presumably, the categories could include inter-racial adoption,251 inter-religious adoption,252 inter-ethnic adoption,253 as well as adoption by single people,254 same-sex couples,255 or people over or under a certain age.256 In the U.S. courts, a long standing principle of international law is that a foreign country’s law that merely differs from that of the United States does not make it automatically contrary to public policy.257 Presumably, this applies to international adoption as well— mere incompatibility of laws does not translate into a situation “manifestly contrary to public policy.”258 Instead, “[t]here must be something which offends by shocking moral standards, or is injurious or pernicious to the public welfare.”259 In the United States, courts rarely ªnd foreign adoptions “repugnant,” but when they do, it is usually

246 See Thompson, supra note 117, at 463–64. 247 See Hague Convention, supra note 23, art. 24. 248 But see Thompson, supra note 117, at 464–65. 249 See id. at 466–67. 250 See id. 251 See Bergquist, supra note 31, at 348; Ruth-Arlene W. Howe, Adoption Laws and Prac- tices in 2000: Serving Whose Interests?, 33 Fam. L.Q. 677, 685. (1999). 252 See Cheryl Wetzstein, Adoption Not an Option, Wash. Times, Feb. 2, 2005, at A2, available at 2005 WLNR 1447447. 253 See Bartholet, supra note 5, at 204–05. 254 See Hubing, supra note 5, at 667–68. 255 See id. at 668–70. 256 See Lewin, supra note 6, at 297; Maine Adoption Placement Service, China Adoption Program, http://www.mapsadopt.org/china.html (last visited Apr. 11, 2006). 257 See Malinda L. Seymore, International Adoption & International Comity: When Is Adop- tion “Repugnant”?, 10 Tex. Wesleyan L. Rev. 381, 392–93 (2004). 258 See Hague Convention, supra note 23, art. 24; Seymore, supra note 257, at 393. 259 See Seymore, supra note 257, at 393 (quoting In re Schultz Estate, 348 P.2d 22, 28 (Or. 1959)). 2006] The Hague Convention on Intercountry Adoption 379

those that fail to mimic U.S. notions of the nuclear family, thus primarily impacting single parents and same-sex couples.260 Currently, Florida is the only state that speciªcally bans same-sex couples from adopting children.261 Other states, such as Nebraska and Ohio, effectively ban same sex couples from adopting by prohibiting “second parent” adoptions by gay individuals in same-sex relationships.262 Thus, same-sex couples who jointly parent adopted children must choose only one of them to become the legal adoptive parent.263 The child has no legal rights to government beneªts if the non-adoptive parent dies or is disabled, and that parent has no legal right to parent the child if the adoptive parent is incapacitated or dies.264 Some countries, such as China, speciªcally prohibit same-sex couples from becoming adoptive parents.265 China classiªes homosexuality as a psychiatric disease, and the country’s laws only recognize families as those with married parents of the opposite sex.266 The Hague Con- vention would presumably allow China to classify an intercountry adoption by same-sex couples as “manifestly contrary to public policy.”267 The United States position would not be as clear, however.268 The Cen- tral Authority might grant same-sex couples status (or deny such status) as qualiªed parents based on the laws of their home state.269 It would have to determine if legally married same-sex couples from Massachu- setts should be granted special consideration,270 or whether they should be treated exactly like a same-sex Florida couple that is expressly

260 See id. at 394. 261 See Kimberly Miller, Proposal Would Loosen Gay Adoption Ban, Palm Beach Post, Mar. 1, 2006, at 1B, available at 2006 WLNR 3583366; Lynn Waddell, Gays in Florida Seek Adoption Alternatives, N.Y. Times, Jan. 21, 2005, at A20, available at 2005 WLNR 845256. 262 See Joan Biskupic, Same-sex Couples Redeªning Family Law in USA, USA Today, Feb. 17, 2003, available at http://www.usatoday.com/news/nation/2003–02–17-cover-samesex_x.htm. Additionally, there was a bill to ban gay adoption introduced into the Ohio legislature in February 2006. Dyana Bagby, Only One State Facing Gay Adoption Ban, S. Voice, (Ga.), Feb. 24, 2006, available at http://www.southernvoice.com/2006/2-24/news/national/nat1.cfm. 263 See Biskupic, supra note 262. 264 See id. 265 See Children’s Bridge–Programs–China, http://www.childrensbridge.com/pages/ china.html (last visited Apr. 11, 2006). 266 See CCAA Regulations effective Aug. 1, 2001 (2001), http://www.fwcc.org/ccaa8_ 01.htm. 267 See Hague Convention, supra note 23, art. 24. 268 See Hubing, supra note 5, at 668–71. 269 See id. at 689–90. 270 See Yvonne Abraham & Rick Klein, Free to Marry: Historic Date Arrives for Same-Sex Couples in Massachusetts, Boston Globe, May 17, 2004, at A1, available at 2004 WLNR 3622855. 380 Boston College International & Comparative Law Review [Vol. 29:353 prohibited from adopting by state law.271 To resolve these conºicting issues, the Central Authority might look to the federal Defense of Mar- riage Act, which could arguably show that families with same-sex parents are contrary to U.S. public policy.272 Because adoption law is so deeply and traditionally entrenched within individual state law, the Central Authority would probably have to make its determinations of parental acceptability based on such state laws.273 The United States is implementing a single Central Authority within the federal government, even though the Hague Convention would have allowed for Cen- tral Authorities in each individual state in the country.274 This choice establishing uniformity, however, is contravened if the same people, going through the same evaluation and application process, can be granted acceptable parental status by residing in Massachusetts but denied such status when residing in Florida.275 Initially, the Central Au- thority should adhere to home-state laws for these determinations.276 These issues, however, are sure to arise almost immediately after the Central Authority is instituted under the State Department, perhaps forcing the federal government to more closely examine the issue of same-sex parenting.277 Another issue that the Central Authority in the United States will face is how to interpret the Hague Convention requirement that no one may “derive improper ªnancial or other gain” from intercountry adoptions.278 That Article goes on to state that “[o]nly costs and ex- penses, including reasonable professional fees of persons involved in the adoption, may be charged or paid,” but this qualiªcation does little to deªne what “improper ªnancial or other gain” and “reasonable professional fees” mean exactly.279 Presumably, the provisions are vague so as to allow the country and its Central Authority ºexibility to determine deªnitions on their own, but costs in intercountry adoptions can vary by tens of thousands of dollars.280 In some countries, bribes thinly

271 See Miller, supra note 261. 272 See Defense of Marriage Act, 28 U.S.C. § 1738C (1996). 273 See Lewin, supra note 6, at 292. 274 See Hague Convention, supra note 23, art. 6. 275 See id.; see also Waddell, supra note 261; Abraham & Klein, supra note 270. 276 See Lewin, supra note 6, at 292. 277 See Katie Thomas, Proud of Their Family, Newsday, Jan. 17, 2005, at A7, available at 2005 WLNR 638732. 278 See Hague Convention, supra note 23, art. 32(1). 279 See id. art. 32(2). 280 See Bartholet, supra note 5, at 190. 2006] The Hague Convention on Intercountry Adoption 381

veiled as “gifts” are commonplace.281 A serious issue could arise over whether these gifts remain acceptable under the Hague Convention if they are not so large as to constitute “improper” gain, or if the fact that they are unofªcial, yet tacitly required, payments make them forbidden given the overall Hague Convention goal of putting international adoption under regulated oversight.282 The U.S. Central Authority should mandate a clear policy that no payments outside of professional fees should be involved in international adoptions in any way.283 Because all international adoptions must go through the Central Authority, it has the power to accredit those outside adoption agencies that deal with the day-to-day processes of each individual adoption.284 The Central Authority thus has the power to monitor the exact rates that each agency charges over the course of the adoption.285 The Central Authority also has power to institute an adverse action against an accredited agency and remove its accredita- tion, which could presumably be based upon excessive fees.286 The Central Authority should make a clear policy available to all prospective adoptive parents that any fees above and beyond those charged by the monitored agency are completely unacceptable.287 The Central Authority should ensure that prospective parents have an open avenue of communication with their home Central Authority— particularly when they are actually in the process of adopting in a foreign country—for reporting any suspected illegal demands or expec-

281 See Elizabeth Bartholet, Family Bonds: Adoption and the Politics of Par- enting 126 (1993). 282 Id. Harvard Law School professor Elizabeth Bartholet, writing about her personal experience as a parent trying to adopt a child in Peru, says of her apprehension about a particular social worker’s reputation for harshness towards foreign adoptive parents: No one knows for sure why [she has removed several children from the adoptive parents], but some suspect that it was because she felt she had not been appropriately treated. Does this mean they failed to provide a “gift” that she felt entitled to? It is illegal to bribe public ofªcials in Peru . . . so it seems genuinely dangerous to think of offering anything to a social worker. But the bureaucratic and judicial systems traditionally operate on the premise that gifts will be given to smooth the way; a refusal to proffer the expected gift can be seen as niggardly or hostile, and it poses a very real risk that whatever it is you want will simply not happen. Id. 283 See Hague Convention, supra note 23, art. 32(2). 284 See id. arts. 10–13; 42 U.S.C. §§ 201–204; Final Rules Press Release, supra note 190. 285 See Hague Convention, supra note 23, arts. 10–13; 42 U.S.C. §§ 201–204. 286 See 42 U.S.C. § 204. 287 See Hague Convention, supra note 23, art. 32(2). 382 Boston College International & Comparative Law Review [Vol. 29:353 tations of payment.288 Because the U.S. Central Authority will have worked closely with the Central Authority of the child’s home country in instituting the adoption in the ªrst place, the U.S. Central Author- ity should address each speciªc reported abuse immediately with the other country’s Central Authority.289 Only this sort of swift, ªrm communication between Central Authorities will ensure that prospective parents are not taken advantage of and that no individual or agency receives any sort of undue ªnancial gain from the adoption.290 These two major issues concerning public policy and ªnancial matters highlight the need for the Hague Convention to further deªne the vague terms within its provisions, as well as provide some appeals or enforcement procedures.291 Additionally, the Hague Con- vention should be amended to include some sort of implementation assistance to aid “sending” countries like Romania in setting up a Central Authority to enable them to fully participate in monitored international adoption procedures.292

Conclusion While the Hague Convention represents a signiªcant step towards ensuring that all international adoptions are governed by certain minimum standards, keeping the best interests of the child paramount, the Hague Convention falls short in two signiªcant respects. First, the Hague Convention’s regulations are most needed in countries like Romania, where large numbers of institutionalized children are in dire need of stable families and thus could beneªt greatly from a regulated system of international adoption. The Hague Convention, however, is least likely to be effectively instituted in such countries because the same political and economic strife that results in large numbers of children in need also inhibits the government’s ability to undertake such extensive structural changes. Thus, the Hague Conference member states need to either establish committees focused on helping countries actually implement the Hague Convention’s mandates, or they need to work closely with the EU and other strong political forces to institute a realistic implementation. Second, for countries like the United States that are fully capable of realizing the broad Hague Convention goals,

288 See id. art. 33. 289 See id. art. 7. 290 See id. art. 32(2). 291 See Thompson, supra note 117, at 465–67. 292 See Sargent, supra note 37, at 380. 2006] The Hague Convention on Intercountry Adoption 383 the Hague Conference members need to amend the Hague Conven- tion to clarify certain language provisions. Most notably, the members need to clear up exactly what countries may classify as contrary to their public policy, and—more importantly—they need to allow for some sort of appeals or review process when one country blocks an adoption on this basis that is otherwise in the child’s best interests. Additionally, the states need to issue clear guidelines about what constitutes prohibited ªnancial gain in the context of adoptions. If the Hague Conven- tion develops on both these wide-reaching and smaller-scale levels, it truly will be a document that fosters the best interests of the children by facilitating international adoption.