The Editorial Board and Staff of the University of Baltimore Journal Of

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Dear Readers:

The Editorial Board and Staff of the University of Baltimore Journal of International Law have worked diligently to ensure Vol- ume 4 provides our readers with pieces that are both interesting and insightful. This is the first of two publications by this Editorial Board and staff. This issue features articles by leading scholars from around the world as well as a Comment and two Emerging Issues by members of our Journal. This issue begins with an article by Dr. Mohamed Abdelaal, SJD, Holding the Executive Accountable in Egypt Impeachment: A Losing Case. In this article Dr. Abdelaal examines the impeachment mechanism in Egypt after the 2011 Revolution and the 2013 events and the removal of Presidents Hosni Mubarak and Mohamed Morsi. Following this article is a case study done by Irene Broekhuijse LLM, PhD and Nanneke Quik-Schuijt, LLM. In their piece, A Case Study: Law and Emotions Within the Kingdom of the Netherlands, the authors analyze the dispute settlement procedure between the Kingdom government and the local government and propose an alternative approach. Our last article, Potential Impacts on Individuals Caused by the Invasion of NGOs into International Politics, authors Zhao Li and Haibin Qi evaluate the role Non-Governmental Organizations play in international cooperation and globalization. Our Student Comment in this issue is from University of Balti- more School of Law J.D. Candidate, Suzanne De Deyne. Ms. De Deyne’s comment, TTIP: A Free Trade Agreement That Strengthens the International Trade Environment and Enhances the Regulatory Powers of the WTO, discusses the relationship between the Transat- lantic Trade Investment Partnership and the World Trade Organiza- tion. Our Emerging Issues are from University of Baltimore School of Law J.D. Candidates Ruby Devine and Aviana Cooper. Ms. Devine’s piece focuses on the Greek debt crisis, while Ms. Cooper’s editorial reviews China’s occupation of the South China Sea. Finally, I would like to thank the Editorial Board and Staff of the Journal for their significant contributions to this issue. I would also like to take this opportunity to thank Professor Mortimer Sellers, faculty adviser to the Journal, for his direction, mentorship, and assistance throughout the school year. In addition, I must thank the Pro-

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fessors and staff of the University of Baltimore School of Law Inter- national Department and the Center for International and Compara- tive Law for their guidance and insight. Also, on behalf of the the Journal, I would like to thank Dean Ronald Weich, the administration, and the Professors and Staff for their continuing support of our Journal. Finally, thank you, the reader, for your support and we hope you enjoy this issue. It is with great pleasure we present the first issue of Volume 4 of The University of Baltimore Journal of International Law.

Sincerely,

Christopher P. Stock Editor-in-Chief University of Baltimore Journal of International Law Volume IV

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JOURNAL OF INTERNATIONAL LAW MASTHEAD 2015-2016 EDITORIAL BOARD Editor in Chief Christopher Stock Managing Editor Suzanne De Deyne Production Editor Julia Brent Articles Editor Kaitlin Evans Publication Editor Katherine Adams Submissions Editor Kathryn McNally Comments Editor Ali Rickart Emerging Issues Editor Laurie Culkin Acquisitions & Technology Editor Alex Adler

ASSOCIATE EDITORS Kimberly Frazier Erin Maze Tim Jarman Carisa Hatfield Jenny Melendez Victoria Narducci

STAFF EDITORS Alison Aminzadeh Ruby Devine Kymberleigh Albites Raiven Taylor Iram Ashraf Margery Beltran Paul Bianchi Catherine Stitely Sarah Trego Aviana Cooper Robert Steininger

FACULTY ADVISOR

Professor Mortimer Sellers

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TABLE OF CONTENTS

ARTICLES

Holding the Executive Accountable in Egypt, Impeachment: A Losing Case...... 1 Dr. Mohamed Abdelaal

A Case Study: Law and Emotions Within the Kingdom of the Netherlands...... 55 Nanneke Quik-Schuijt & Irene Broekhuijse

Potential Impacts on Individuals Caused by the Invasion into International Politics...... 81 Zhao Li & Haibin Qi

STUDENT COMMENT

TTIP: A Free Trade Agreement That Strengthens the International Trade Environment and Enhances the Regulatory Powers of the WTO...... 131 Suzanne De Deyne

EMERGING ISSUES

Is a Grexit- A Greek Exit from the Eurozone- the Solution?...... 157 Ruby Devine

South China Sea Takeover: Destroying Fisheries and Creating Economic Dead-lands for Surrounding Coastal States...... 165 Aviana Cooper

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HOLDING THE EXECUTIVE ACCOUNTABLE IN EGYPT

IMPEACHMENT: A LOSING CASE

Dr. Mohamed Abdelaal

ABSTRACT: This paper examines the impeachment mechanism in Egypt after the 2011 Revolution and the 2013 events and the removal of Presidents Hosni Mubarak and Mohamed Morsi. In doing so, the paper will provide a critical analysis to the impeachment clauses in both the 2012 and 2014 Constitutions, in an attempt to discover to what extent the pre 2011 impeachment differs from that of post 2011. Further, it addresses the issue of whether the recall election could make a good alternative to impeachment in Egypt. Specifically, we will briefly shed light on the history of the recall device as well as its emergence as one feature of direct democracy. Our focus will then shift to discussing the possibility of adopting the recall device in Egypt and the challenges that might face such adoption. Eventually, we will propose a recall provision that could replace impeachment in Egypt’s current constitution.

AUTHOR: Dr. Mohamed Abdelaal, SJD, is an Assistant Professor of Law at Alexandria University School of Law in Alexandria, Egypt, and an Adjunct Professor of Law at Indiana University Robert H. McKinney School of Law, Indianapolis, IN. He is admitted to the bar in Egypt and is a member of the Egyptian American Rule of Law As- sociation (EARLA) in Washington, D.C.

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TABLE OF CONTENTS Introduction ...... 3 The Constitution of 2012 ...... 4 A. Background ...... 4 B. Impeachment in the 2012 Constitution ...... 14 The Constitution of 2014 ...... 22 A. Background ...... 22 B. Impeachment in the 2014 Constitution ...... 28 Practicing Impeachment: The Case of President Morsi ...... 35 The Recall Election as an Alternative ...... 43 The Case of Egypt ...... 49 Conclusion ...... 53

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Introduction With a long constitutional history dating back to 1882 when it was an Ottoman province, Egypt is considered to be the oldest constitutional state in the Arab world.1 Under the monarchy system, Egypt had two constitutions, 1923 and 1930, neither of which installed Egypt as a constitutional monarchy.2 In other words, in the Egyptian Kingdom the king was not a symbolic figurehead, but rather a strong political actor who ruled the state and was heavily involved in its administration.3 However, he was immune from accountability.4 After the abolition of the monarchy and the declaration of the republic in 1952, Egypt underwent the drafting and application of six constitutions—1956, 1958, 1964, 1971, 2012, and 2014—in which the president and his cabinet were recognized as active participants in the day-to-day administration of the state under a semi-presidential system of governance.5 However, the many presidential powers en- visioned in these constitutions, as well as practiced under most of them, revealed the president to be the sole executive, aided by only a symbolic involvement of the cabinet.6 Most of the constitutions adopted in the Egyptian Republic were guided by the themes of democracy, human dignity, and political accountability, as they were the outcome either of bitter battles against colonial powers (the 1954 and 1956 Constitutions),7 or the overthrow of authoritarian regimes (the 1971 and 2012 Constitutions).8 Howev- er, these constitutions manifest a remarkable ability to yield excep- tions regarding political accountability.9 For the purposes of this article, I will examine the issue of political accountability from the perspective of presidential impeachment

1 . Egyptian Constitutions, MIDAN MASR, http://www.midanmasr.com/en/default.aspx?PageID=15 (last visited Oct. 9, 2015). 2 . Id. 3 . Id. 4 . Id. 5 . Sujit Choudhry & Richard Stacey, Chapter 5: Semi-presidential government in Tunisia and Egypt, CONSTITUTION BUILDING: A GLOBAL R. 33 (2013), http://www.idea.int/publications/constitution-building-a-global- review/upload/cbgr_c5.pdf. 6 . Id. 7 . Egyptian Constitutions, supra note 1. 8 . Id. 9 . Id.

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2015-2016 UB Journal of International Law in Egypt’s Constitutions of 2012 and 2014. They were the outcome of two popular uprisings and a bitter struggle against two authoritarian regimes, those of Mubarak and of the Muslim Brotherhood. Then I will discuss the possibility of adopting the recall election as an alternative to impeachment in Egypt.

The Constitution of 2012 A. Background Following the assassination of President Sadat, Vice President Hosni Mubarak assumed the presidency.10 Mubarak’s first years of presidency teemed with serious challenges. He was required to face the escalating debt rate in Egypt, radical Islamists, and Egypt’s deteriorating relations with the Arab nations after the Egypt-Israel Peace Treaty.11 Indeed, Mubarak did a good job during his early years in the office of the presidency. His policy in suppressing the Islamists, fighting terrorism in Egypt, and maintaining peace with Israel earned him a close relationship with the United States and the West that helped him to reschedule the country’s debt and to cure certain economic problems.12 Further, Mubarak succeeded in restoring Egypt’s relation with the Arab nations. Under his regime Egypt was readmitted to the Arab League13 after having been suspended as a consequence of the peace treaty with Israel.14

10 . Mohamed Hosni Mubarak was Egypt’s fourth president who served from 1981 to 2011. Mubarak was appointed as Egypt’s vice president in 1975 during the regime of President Anwar Al-Sadat, and thus he assumed the office of the president in 1981 following the assassination of President Sadat. Michael Slackman, A Brittle Leader, Ap- pearing Strong, N.Y. TIMES (Feb. 12, 2011), http://www.nytimes.com/2011/02/12/world/middleeast/12mubarak.html?pagewanted= all&_r=0. 11 . Id. 12 . Id.

13. The Arab League is a regional organization of Arab countries in Africa and Asia. The Organization was formed on March 22, 1945 in Cairo, Egypt. The Organization aims “to draw closer the relations between member States and co-ordinate their political activities with the aim of realizing a close collaboration between them, to safeguard their

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Despite his acceptable performance in the foreign policy arena, Mubarak did not perform well in internal and societal affairs. With a steady growth in the rate of population to more than 80 million,15 continuously escalating prices, increased rates of inflation, high levels of unemployment,16 and a wide gap between rich and poor people,17 Egyptians suffered a severe deterioration in their societal and economic life. Further, Mubarak’s regime was marred by restriction of freedoms.18 For almost three decades, Mubarak ruled Egypt under the grip of emergency law, which restricted individuals’ freedoms and suspended several constitutional rights.19

independence and sovereignty, and to consider in a general way the affairs and interests of the Arab countries.” Pact of the League of Arab States, Art. 2, League of Arab States, ICNL, www.icnl.org/research/monitor/las.html (last visited Sept. 15, 2015). 14 . After ten years of suspension, Egypt regained its full membership in the Arab League in 1989 and the League’s headquarters returned to Cairo after being moved to Tunis, Tunisia. Profile: Arab League- Timeline, BBC, http://www.bbc.co.uk/news/world- middle-east-15747947 (last visited Sept. 15, 2015). 15 . In 2011, Egypt’s population reached 82,537,000 with an annual growth rate of 1.7%. See, Egypt Country Profile, UNESCO, http://stats.uis.unesco.org/unesco/TableViewer/document.aspx?ReportId=121&IF_Lan guage=en&BR_Country=2200 (last visited Sept. 15, 2015). 16 . By the end of 2010, Egypt’s unemployment rate reached 9.0% and this rate jumped to 11.8% in the second quarter of 2011. See, Egypt Country Statistics, U.N., http://data.un.org/CountryProfile.aspx?crName=EGYPT (last visited Sept. 15, 2015). 17 . Slackman, supra note 10. 18 . Daniel Williams, Egypt Extends 25-Year-Old Emergency Law, WASH. POST (May 1, 2006), http://www.washingtonpost.com/wp- dyn/content/article/2006/04/30/AR2006043001039.html.

19. Law No. 162 of 1958, al-Jarida al-Rismiyyah, 28 Sept. 1958 (Egypt). The Emergency Law was first enacted in 1958. The law was imposed during the Egypt-Israel War in 1967 and was suspended after the 1973 War before being reactivated following the assassination of President Sadat in 1981 and has been in effect for almost 30 years during the regime of President Mubarak. See Williams, supra note 18.The Law authorizes

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Corruption in his regime also roused the Egyptians against Mu- barak.20 In an attempt to secure his office and prolong his presidency, Mubarak tried to take control of the institutions of the country.21 A significant feature of corruption in Mubarak’s era was the rise to power of businessmen who endeavored desperately to serve only their own business interests.22 Another aspect of corruption was electoral fraud, which reached its acme in the Parliamentary Election of 2010.23 At this time, the government decided that the judiciary would not supervise the election,24 and it initiated a wide arrest campaign targeting opposition figures.25 As a result of these practices, the National Democratic Par-

the president to take the required precautions to restrict the freedom of meeting, movement, residence, arrest suspects or those who threat public security and public order, to inspect people and places notwithstanding the provisions of the Criminal Pro- cedures Law. Law No. 162 of 1958, al-Jarida al-Rismiyyah, 28 Sept. 1958, Art.3(1) (Egypt). It also entitles the president to order surveillance on any kind of messages, monitor, confiscate and close newspapers, leaflets, publications, fees and all means of expression, propaganda and advertising before its publication. Id., at Art.3(2). Further, under this law, the president determines the opening and closing times of public stores, withdraws weapons’ licenses and evacuates or segregates certain regions. Id., at Art.3(3),(5),(6). 20 . See generally BRUCE RUTHERFORD, EGYPT AFTER MUBARAK: LIBERALISM, ISLAM, AND DEMOCRACY IN THE ARAB WORLD (Princeton University Press, 2008). 21 . Id. 22 . A stark example of such a selfishly corrupt and powerful business figure was Ahmed Ezz, who served as the Organization Secretary of the National Democratic Party (NDP), Mubarak’s ruling party. Ezz was the majority leader of the Egyptian Parlia- ment, as well as the absolute monopolist of the steel industry in Egypt, with an estimated wealth of $3 billion. To further his own interests, Ezz significantly enhanced monopolies rather than fighting it, backing every effort to thwart any legislative bill introduced in parliament that would criminalize monopoly. Likewise, Rashid Mohamed Rashid, former Minister of Trade and Industry, had an estimated personal wealth of $2 billion, and Zuhair Garrana, former Minister of Tourism, was worth $2.2 billion. Tom Ramstack, Obama Optimistic about Egypt as Negotiators make concessions, GANT DAILY, http://gantdaily.com/2011/02/07/obama-optimistic-about-egypt-as-negotiators- make-concessions/ (last visited Sept. 15, 2015). 23 . Egypt Rebuffs U.S. Call for Foreign Monitors at Election, N.Y. TIMES (Nov. 18, 2010), http://www.nytimes.com/2010/11/19/world/africa/19egypt.html?_r=0. 24 . In addition, the government refused any kind of international monitoring for the electoral process, arguing that international monitoring would undermine the sovereignty of the state and allow interference in its internal affairs. Id. 25 . Mubarak extended the state of emergency just before the election, ignoring his promise in 2005 to put an end to the state of emergency and to introduce a terrorism law to replace emergency law. In 2010, the Egyptian security forces started a wide arrest

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Holding the Executive Accountable Vol. IV, No. I ty (NDP), the ruling party, swept the election with virtually no representation of opposition.26 Police brutality also plagued Mubarak’s regime. The 2009 Hu- man Rights Report of the U.S. Department of State reported that “the government’s respect for human rights remained poor, and serious abuses continued in many areas,”27 and “security forces committed arbitrary or unlawful killings during the year.”28 A notable incident that sparked a massive wave of anger over Egypt’s police practices and significantly contributed to toppling Mubarak’s regime was the death of Khaled Saeed, who was severely beaten to death by police officers after being identified as “suspicious.”29

campaign against anti-government political activists, including members of the Mus- lim Brotherhood after it announced its participation in the Election. Elections in Egypt State of Permanent Emergency Incompatible with Free and Fair, HUMAN RIGHTS WATCH, (Nov. 23, 2010), http://www.hrw.org/reports/2010/11/23/elections-egypt. 26. The NDP won 420 out of 518 seats with a success rate of 81%. Independent candidates won 68 seats, of which 53 seats were secured by NDP defectors. While, all other political parties won 15 seats, the Muslim Brotherhood won only one seat down from 88 seats in the previous election of 2005. Official Results: 16 Opposition, 424 NDP, 65 “independents”, AHRAM ONLINE, (Dec. 6, 2010), http://english.ahram.org.eg/NewsContent/1/5/1321/Egypt/Egypt-Elections-/Official- results—-opposition,—NDP,—independents.aspx. 27 . 2009 Human Rights Report: Egypt, U.S. DEPARTMENT OF STATE, (Mar. 11, 2010), http://www.state.gov/j/drl/rls/hrrpt/2009/nea/136067.htm. 28 . Id. Further, the report stated, “[D]omestic and international human rights groups reported that the Ministry of Interior (MOI) State Security Investigative Service (SSIS), police, and other government entities continued to employ torture to extract information or force confessions, [and that] police and the SSIS reportedly employed torture methods such as stripping and blindfolding victims; suspending victims by the wrists and ankles in contorted positions or from a ceiling or door frame with feet just touching the floor; beating victims with fists, whips, metal rods, or other objects; using electric shocks; dousing victims with cold water; sleep deprivation; and sexual abuse, including sodomy.” Id.

29. Wael Ghonim, an Egyptian computer engineer, political activist and prominent revolutionary figure, created a memorial Facebook’s page, Kullena Khaled Saeed (We Are All Khaled Saeed), to commemorate Saeed. The page dramatically attracted many followers nationwide in support for Saeed’s case and against the brutal and oppressive practices of the Egyptian police. In short, during Mubarak’s regime, the police force

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Perhaps the growing rumors that Mubarak sought for his son Gamal to inherit his rule were the last proverbial nails in his coffin. After many attempts to introduce him into Egypt’s political life,30 Gamal’s grooming process peaked in February 2000 when the elder Mubarak appointed him a member of the NDP’s General Secretari- at.31 Gamal later became the Assistant Secretary General and the Secretary of the Policy Committee, which allowed him to play a large role in determining how the ruling party should function.32 Further, in an attempt to support his son legislatively, in 2005 Mubarak en- sured that Article 76 of the 1971 Constitution was amended to allow multi-candidate presidential elections.33 However, the amendment also imposed further restrictions regarding the eligibility to run for the office of president34 in a move interpreted by many politicians and

was changed from being a tool for the people’s security to a weapon in the regime’s hand to threaten and suppress the people. See WAEL GHONIM, REVOLUTION 2.0: THE POWER OF THE PEOPLE IS GREATER THAN THE PEOPLE IN POWER 58-81 (2012). On March 3, 2014, Alexandria Criminal Court sentenced two police officers to ten years of aggravated imprisonment after they were found guilty of false arrest, using excessive force, and the manslaughter of Saeed. Appeals Court upholds death sentence, long prison terms in Sidi Gaber Case, MADA MASR, (Feb. 15, 2015), http://www.madamasr.com/news/appeals-court-uhpolds-death-sentence-long-prison- terms-sidi-gaber-case. 30 . See Muhammad Abdul Aziz & Youssef Hussein, The President, the Son, and the Mili- tary: The Question of Succession in Egypt, 9/10 THE ARAB STUD. J. 73 (Fall 2001/Spring 2002). The first attempt to introduce Gamal into political life was in 1999, when rumors abounded that a new political party, Hizb al-Mustaqbal (The Fu- ture Party) would be established and funded by the wealthy NDP loyalists, and Gamal would be installed as the party president, Id. at 75. However, the government denied any attempt to establish the party, ending these speculations. Id. The grooming process of Gamal continued when he was installed as the Chairman of Gama ͑at Giel al- Mustaqbal (The Future Generation Organization), a non-governmental organization founded in 1998 to provide educational, housing and employment services for youth. Id. at 84. 31 . Jason Brownlee, The Heir Apparency of Gamal Mubarak, 15/16 THE ARAB STUD. J. 36, 46 (Fall 2007/Spring 2008). 32 . Id. at 47. 33 . Id.

34 . See Brownlee, supra note 31. The amendment required that an eligible independent candidate should secure the support of at least 250 elected representatives (sixty-five members of the People’s Assembly, twenty-five of the Shura Council, ten members of each of the Municipal Councils in at least fourteen governorates and twenty more from some combination of the three). Id. at 47-48. Further, eligible candidates are to include only “member of the party’s supreme board, provided that a candidate is a member of

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Holding the Executive Accountable Vol. IV, No. I activists as an attempt from Mubarak to secure the presidency for himself and his son after him. All these circumstances contributed to the Egyptian Revolution of 2011. Egyptians flooded the streets on January 25, 2011, protest- ing against police brutality and the deteriorating socio-economic situations.35 Political activists named January 25th Yawm Al-ġaḍab (“Day of Anger”), as thousands of people demonstrated in Cairo, occupying Tahrir Square (“Liberation Square”), the icon of the 2011 Revolution, chanting “Bread…Freedom…Social justice.”36 Demon- strations and protests soon spread beyond the borders of Cairo to reach other major cities such as Alexandria, Suez, Aswan, and Ismai- lia. Nationwide demonstrations and protests continued through the following two days. Police forces stepped up their responses using

that board for a least one year, and that the political party completed five continuous years and hold at least 5% of seats in both legislative chambers. Id. at 47. In 2007, another amendment to Art. 76 was introduced, whereby political parties, which have been founded at least five consecutive years before the starting date of candidature and have been operating uninterruptedly for this period, and whose members have obtained at least 3% of the elected members of both the People’s Assembly and the Shura Council or what equals this total in one of the two assemblies, may nominate for presidency a member of their respective higher board, according to their own by laws, provided he has been a member of such board for at least one consecutive year. See Na- than J. Brown, Michele Dunne, & Amr Hamzawy, Egypt’s Controversial Constitutional Amendments, CARNEGIE INST. FOR INT’L PEACE 1, 11 (Mar. 23, 2007), http://www.carnegieendowment.org/files/egypt_constitution_webcommentary01.pdf. 35 . The 25th of January is Egypt’s National Police Day. Choosing the National Police Day to demonstrate and protest indicates the extent to which people in Egypt were frustrat- ed and disappointed with the police brutality and violent practices. Egypt Braces for Nationwide Protests, FRANCE 24 (January 25, 2011), https://web.archive.org/web/20110201013309/http://www.france24.com/en/20110125- egypt-braces-nationwide-protests. 36 . In fact, this famous revolutionary chant was a cunning selection by the protestors, as it mirrored their demands for a better social, economic and political life. First, “bread” refers to the people’s socio-economic demand for a regime that could get the country out of debt, offer them employment opportunities and satisfy their essential needs. Se- cond, “freedom” describes the Egyptians’ search for their constitutional-fundamental rights, lost under Mubarak’s rule. Last, “social justice” was a catchall term that ac- commodated both the economic and political deteriorated situations. Specifically, the term reflects the Egyptians’ desire for a regime that would maintain civil rights and guarantees an equitable distribution of wealth and resources. See Katie Bridget Wright, Bread, Freedom, and Social Justice: Understanding the Egyptian Revolution, LAKE FOREST C. PUBL. (2013), http://publications.lakeforest.edu/firstyear_writing_contest/1.

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2015-2016 UB Journal of International Law tear gas and bullets against the protesters and arresting many political activists.37 After eighteen days of massive protests and demonstrations,38 on February 11, 2011, Vice President Omar Suleiman announced that

37 . Egypt Protesters Clash with Police, AL JAZEERA (January 25, 2011, 10:26 AM), http://www.aljazeera.com/news/middleeast/2011/01/201112511362207742.html. On January 27, Dr. Mohamed El-Baradei, former director of the International Atomic En- ergy Agency, returned to Egypt in order to participate in the revolution arguing that, “[T]he people have broken the barrier of fear. There is no going back.” Mohamed Elmeshad, Back in Egypt, ElBaradei Vows to Take Part in Planned Friday Demon- strations, EGYPT INDEP. (Jan. 27, 2011 4:06 PM), http://www.egyptindependent.com/news/back-egypt-elbaradei-vows-take-part- planned-friday-demonstrations.

38 . See Ghonim, supra note 29. During these eighteen days, Mubarak made three televised statements in an attempt to appease the angry protesters, yet he remained defiant, refusing to step down. Mubarak’s first statement was on January 28, 2011, id. at 216, known as the Friday of Anger, id. at 190, which time he overthrew the government, named General Umar Suleiman, the head of intelligence, Vice President of Egypt, id.

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Mubarak had decided to step down and had charged the Supreme Council of the Armed Forces (“SCAF”) to administer the country, a moment much awaited by the Egyptians.39 Following this withdrawal, Mubarak and his family were prohibited from departing the country, and he and his two sons were prosecuted under charges of corruption and of killing peaceful protestors.40 In fact, Mubarak’s trial

at 216, making him the first vice president in Mubarak’s regime. Michael Slackman, Choice of Suleiman Likely to Please the Military, Not the Crowds, N.Y. TIMES, Jan. 29, 2011, at A10. (The post had remained vacant for nearly 30 years). He also imposed curfew in Cairo, Alexandria and Suez, deployed military forces in the three cities, and promised the people to undertake a huge socio-economic reform, Ghonim, supra note 29 at 215. In fact, the impact of Mubarak’s was significant for the protestors, as they became sufficiently confident of Mubarak’s weakness to become more insistent upon the overthrow of the regime. Id. at 217. They chanted, “Al-sha ͑ab Yureed Esqaat al- Nizam” (The People Want to Topple the Regime) which shows to what extent the Egyptians’ political awareness grew; they became so determined not only to force Mubarak to step down, but also to end the whole regime. Id. As the protestors defied the curfew and the severity of violence between police and protestors continued to escalate, Mubarak addressed the nation again on February 1, promising to ask the parliament to amend the constitutional articles concerning the term of presidency and pledging not run in the next presidential election. However, he insisted on remaining in power until the end of his term in September 2011. Id. at 232, ostensibly to guarantee a peaceful transition of power. Once again, the protesters did not accept Mubarak’s speech and continued demanding that he step down. Id. As the demonstrations continued widely, on February 10, Mubarak made his third televised statement, amid great expectations that he would resign his office. However, in this third statement, Mubarak insisted that he would remain as the president until the next presidential election in September 2011, but also stated that he would transfer his powers to the vice president. Id. at 276. As a response to the stubborn Mubarak, protestors organized in massive marches chanting “Leave means go, in case you do not know!” The crowd headed towards the presidential palace with the intention to blockade Mubarak and force him to step down. Once he was informed of the people’s approach, Mubarak along with his family, fled to Sharm el-Sheikh, an Egyptian resort city. 39 . David Kirkpatrick, Egypt Erupts in Jubilation as Mubarak Steps Down, N.Y TIMES (February 11, 2011), http://www.nytimes.com/2011/02/12/world/middleeast/12egypt.html.

40. See Patrick Kingsley, Hosni Mubarak Cleared of Conspiring to Kill Protesters in Egypt’s 2011 Uprising, GUARDIAN (Nov. 29, 2014 2:53 PM), http://www.theguardian.com/world/2014/nov/29/hosni-mubarak-cleared-conspiring- kill-protesters-egypt-2011-uprising. See also, Jason Hanna, Sarah Sirgany & Holly Yan, Egypt: Ex-ruler Hosni Mubarak, Accused in Deaths of Hundreds, Cleared of Charges, CNN (Nov. 30, 2014 5:42 AM),

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2015-2016 UB Journal of International Law was the first occasion in the history of the Arab world and indeed the Middle East in which an overthrown president underwent a public trial.41 Immediately after the overthrow of Mubarak, the Supreme Council of the Armed Forces (SCAF) issued a Constitutional Decla- ration on February 13, 2011, pledging not to remain in governance and to hand over power to an elected civilian government within six months or as soon as parliamentary and presidential elections were held. In addition, the Declaration suspended the 1971 Constitution and dissolved the two parliamentary chambers elected in 2010. Sub- sequently, the SCAF ordered the formation of a committee to amend certain articles of the 1971 Constitution regarding conditions to seek the presidency, as well as confirming full judicial supervision over both parliamentary and presidential elections.42 The amendments also included a description of the road map describing how power would be transferred to an elected civilian government by virtue of a parliamentary election followed by a presidential election.43 Further, the amendments stipulated that the parliament should elect a constituent assembly to draft the country’s new constitution. The amendments were put into a popular referendum and approved by 77% on March 19, 2011.44 On March 30, 2011, the SCAF issued a constitutional declaration including the approved amendments.45

http://www.cnn.com/2014/11/29/world/meast/egypt-mubarak-trial/. On June 2, 2012, a criminal court acquitted Mubarak of ordering protesters to be killed. However, the Court found him guilty of not ordering the killing to be stopped, and sentenced him to life imprisonment. Likewise, the court found Habib el-Adly, the former Minister of In- terior, guilty of conspiring to kill the protestors, also sentencing him to life imprisonment However, Mubarak appealed the verdict, and the Court of Cassation granted him the appeal and ordered a retrial, in which he was acquitted later. Id. 41 . Ilhem Allagui & Johanne Kuebler, The Arab Spring and the Role of ICTs: Editorial Introduction, 5 INT’L J. COMMC’N 1435, 1439 (2011). 42 . James Feuille, Reforming Egypt’s Constitution: Hope for Egyptian Democracy?, 47 TEX. INT’L L. J. 237, 247 (2011). 43 . Id. 44 . Egypt Referendum Strongly Backs Constitution Changes, BBC (March 20, 2011), http://www.bbc.com/news/world-middle-east-12801125. 45 . The 2011 Declaration was amended twice. The first amendment was adopted on Sep- tember 25, 2011, and stipulated that one-third of the parliamentary seats were to be filled by individual candidates, while two-thirds were to be filled by proportional lists. The second amendment took place on November 19, 2011, and required ambassadors and consuls to supervise the elections abroad, as it would be difficult for judges to

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After the 2011 Revolution, Islamists in Egypt started to emerge as a major political power especially Al-ikhwan Al-moslumin (the Muslim Brotherhood). Following the revolution, the Muslim Broth- erhood decided to practice politics in an organized form, and so established a political party, Hezb Al-horya w Al-͑adalah (The Freedom and Justice Party).46 The Muslim Brotherhood became highly involved in political life, after having been during Mubarak’s regime a banned group whose members were always prosecuted.47 The decisive electoral victory in the 2011 parliamentary elections was the first occasion upon which the Brotherhood showed its canines.48 Under the flag of their new party, Hezb Al-Nour (The Light Party), the Salafists49 were fairly represented in the parliament,50 which guaranteed to the Islamists full control over the lower house.51 On June 24, 2012, with a 51.73% of vote,52 Mohamed Morsi of the Muslim Brotherhood53 was sworn as Egypt’s first democratically elected pres-

travel abroad to ensure judicial supervision. Nathan J. Brown & Kristen Stilt, A Hap- hazard Constitutional Compromise, CARNEGIE ENDOWMENT FOR INT’L PEACE (Apr. 11, 2011), http://carnegieendowment.org/2011/04/11/haphazard-constitutional- compromise. 46 . Mohamed Abdelaal, Egypt’s Constitution: What Went Wrong?, 7 VIENNA J. ON INT’L CONST. L. 200, 203 (2013). 47 . Id.; see also Sahar F. Aziz, Egypt’s Protracted Revolution, 19 HUM. RTS. BRIEF 2, 3 (2012). 48 . Despite its proclamation that it would not run for more than 30% of the seats, the Mus- lim Brotherhood ran for 70% of the seats in the People’s Assembly (the lower house) and won almost 50% of the seats. Sahar F. Aziz, Egypt’s Protracted Revolution, 19 HUM. RTS. BRIEF 2, 4 (2012). 49 . According to Islamic jurisprudence, the word salaf refers to the earliest Muslims, i.e., Prophet Muhammad’s companions and their followers. Thus, technically, Salafists are those who call for the understanding of Islam and its sources according to the approach of the earliest Muslims, simply because they consider this approach to be the true Is- lam and free of foreign influence and interpretation. In Egypt, Salafists are considered among the most extreme Islamists. Id. at 3. 50 . The Salafists won 25% of the seats in the People’s Assembly. Abdelaal, supra note 46. 51 . Aziz, supra note 48. 52 . David Kirkpatrick, Muslim Brotherhood’s Mursi declared Egypt president, BBC (June 24, 2012), http://www.bbc.com/news/world-18571580. 53 . Indeed, the Brotherhood initially nominated Khairat El-Shater, a prominent leader and the deputy chairman of Brotherhood, as its first presidential candidate. However, El- Shater was disqualified by the 2012 Presidential Election Commission due to the legal requirement that a released prisoner is not eligible to practice his political rights before six years has elapsed from the time of his release. Consequently, the Muslim Brother- hood introduced Mohamed Morsi as the alternate presidential candidate. Id.

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2015-2016 UB Journal of International Law ident after the 2011 Revolution.54 In the same year, the Islamist- dominated parliament elected a Constituent Assembly to draft a new constitution for the country.55 The Assembly witnessed a boycott movement from some of Egypt’s liberal figures and parties in objection to the Islamists’ dominance over its formation.56 On December 26, 2012, the constitution was put to popular referendum where it was approved by 63.8% with a population turnout of only 33%.57 In fact, the constitution was sharply criticized by many Egyptians and political activists for restricting rights and introducing a theocratic rule.58 However, Islamists argued that the 2012 Constitution was superior to all of Egypt’s previous constitutions, and asserted that it achieves great progress in the fields of individuals’ rights and freedoms, social justice, restricting presidential powers, and limiting the presidential term.59

B. Impeachment in the 2012 Constitution Article 152 of the 2012 Constitution established presidential impeachment by stating: A charge of felony or treason against the President of the Republic is to be based on a motion signed by at least one-

54 . Evan Hill, The villa and the ministry, AL JAZEERA (June 18, 2012), http://blogs.aljazeera.com/blog/middleeast/villa-and-ministry. 55 . The 2012 Constituent Assembly was composed of 100 members−39 seats for parliamentary members and 61 seats for independent members (6 seats for judges, 13 seats for labor unions, 21 seats for public figures, 9 seats for law experts, 5 seats for the Al- Azhar institute, 4 seats for the Coptic Orthodox Church, a seat for the armed forces, a seat for the police, and a seat for the Ministry of Justice). The Assembly was heavily dominated by the Islamists. Specifically, Islamic parties, with 16 seats for the Free- dom and Justice Party (the Muslim Brotherhood’s party) and 8 seats for the Light Par- ty (the Salafists’ party), comprised 24 out of the 39 parliamentary seats. Further, the Islamists desperately sought for the nine seats of the law experts to be filled by those who belong ideologically to the Islamic bloc in Egypt. Abdelaal, supra note 46, at 203 n.18. 56 . For instance, Dr. Mohamed ElBaradei, Hezb Al-Karama (The Dignity Party), and the Coptic Orthodox Church announced their withdrawal from the Assembly in objection to the Islamists’ dominance. Id. 57 . Id. at 200 n.2. 58 . For more information see Mohamed Abdelaal, Egypt’s Constitution: What Went Wrong?, 7 VIENNA J. ON INT’L CONST. L. 200, 203 (2013). 59 . Abdelaal, supra note 46.

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third of the members of the House or Representatives.60 A decision to impeach is to be issued only by a two-thirds majority vote of the members of the House of Representa- tives.61 As soon as an impeachment decision is reached, the president ceases all work. This should be treated a temporary impediment that prevents the President of the Republic from assuming his responsibilities.62 At the outset, Article 152 listed high treason and felony as two offenses that merit impeachment if committed by the president.63 Un- like Article 85 of the 1971 Constitution, which extended the scope of impeachable offenses to include high treason or any criminal crime, Article 152 limits the scope to include only high treason or felony.64 Regarding the first offense, given that Article 152 failed to define the crime of high treason and that Law No. 247/1956 lacks a definition,65 the definition of a high treason crime should be determined according to the penal code as well as Law No. 79/1958, regarding the prosecu-

60 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 30 Nov. 2012, art. 152. 61 . Id. 62 . According to Article 153, “if a temporary impediment prevents the President from exercising his duties, the Prime Minister takes over his responsibilities.” Id. at art. 153. Thus, since Article 152 treats presidential impeachment as a “temporary impediment,” the prime minister should assume the presidency until a verdict is reached in the impeachment case. Id. at art. 152. 63 . Id. 64 . Id.; CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, Sept. 11, 1971, as amended, May 22, 1980, May 25, 2005, Mar. 26, 2007.

65. Law No. 247/1956 served under the Constitution of 1956 and regulated the trial of the president and the ministers. It impeached the president for the commission of treason or disloyalty to the republic regime, and listed acts of disloyalty to the republic regime to be: (a) seeking to overthrow the republic regime in favor of a monarchy; (b) or suspending all or part of the country’s constitution or amending its provisions without following the terms and rules prescribed in the constitution. However, it did not define what is meant by the crime of treason as an impeachable offense. According to the explanatory memorandum of the law, acts that constitute the crime of treason are to be determined according to provisions of the penal code. Law No. 247 of 1956, Al- Jarida al-Rismiyyah, 14 June 1956 (Egypt).

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2015-2016 UB Journal of International Law tion of ministers in both the Egyptian and Syrian territories, after Egypt had entered a political union with Syria in 1958.66 On the other hand, Article 152 listed felony as the second category of impeachable offense. As mentioned above, the Egyptian penal code classifies crimes as felonies, misdemeanors, or violations, and it defines felonies as crimes that are punished with death, life imprisonment, aggravated imprisonment, and imprisonment.67 Conse- quently, according to Article 152, impeachment procedures should be invoked against the president if he commits a crime that is punishable by death, life imprisonment, aggravated imprisonment, or imprisonment. Regarding the question of how to impeach, the 2012 Constitution followed that of 1971 by Article 152’s requirement that at least one- third of the members of the House of Representatives support the impeachment resolution against the president to be considered, and that an impeachment decision against him requires a two-thirds majority vote to pass.68 As mentioned earlier, the requirement of special majorities is likely to hinder any attempt to render the executive accountable for his misconduct, since such majorities are required just to submit an impeachment resolution and to indict.69 Indeed, the role of the investigation committee found in Article 10 of Law No. 247/1956, to investigate the impeachment resolution and ensure its seriousness, is likely to help prevent malicious resolutions without requiring a special majority to submit such resolutions in the legisla-

66 . Law No. 79/1958 was issued by a presidential decree with the force of law on June 22, 1958, and replaced the provisions of Law No. 247/1956 regarding the prosecution of ministers. The law did not address the possibility to impeach the president; however, it only called for impeaching ministers if they committed certain crimes such as, “(1) high treason; (2) violation of the basic provisions in the constitution; (3) any act or behavior that causes an increase or decrease in prices of commodities, real estate, governmental securities, or securities of the stock markets to obtain a personal benefit or for a third party; (4) influence peddling; (5) deliberate violation of laws and regulations that costs the state or a public domain entity a financial loss; (6) any act or behavior that means an interference in the work of the judiciary or any entity with judicial jurisdiction; and (7) interference in the election or the referendum process to direct its result either by issuing illegal orders or using illegal procedures.” Law No. 79 of 1958, al-Jarida al-Rismiyyah, 22 June 1958 (Egypt). 67 . Law No. 58 of 1937 (Criminal Code of 1937, reformed in 1952), al-Jarida al- Rismiyyah, Aug. 1937 (Egypt). 68 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 30 Nov. 2012, art. 152. 69 . Id.

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Holding the Executive Accountable Vol. IV, No. I tive chamber.70 Likewise, a two-thirds majority to indict the executive could be a further obstacle to thwart the impeachment process, especially if such a special majority is required to convict. In determining the court of impeachment, it should be noted that the 2012 Constitution followed that of 1971 in establishing a bicameral legislature, the House of Representatives and the Shura Coun- cil.71 However, unlike the 1971 Constitution, which assigns the Shura Council with only consultative functions, the 2012 Constitu- tion followed that of 1971 in establishing a bicameral legislature, the House of Representatives and the Shura Council.72 However, unlike the 1971 Constitution which assigns the Shura Council with only consultative functions, the 2012 Constitution expands the functions of the Shura Council to include passing laws,73 assuming legislative powers that were previously shared with the House of Representa- tives in case this latter is dissolved,74 and approving the presidential appointments of the chairmen of the independent bodies and supervi- sory organs.75 However, the 2012 Constitution did not designate the Shura Council as the court of impeachment to try the president after being impeached by the House of Representatives; rather, it assigned a special tribunal for this task.76 Specifically, Article 152 stipulates: The President of the Republic is to be tried before a special court headed by the President of the High Council of Judges and staffed by the senior deputies of the President of the Su- preme Constitutional Court and the State Council, and the two most senior presidents of the appeals courts. The Public Prosecutor assumes the role of prosecutor. If the most senior person is unable to play his part, the person next in seniority takes his place.77

70 . Law No. 247 of 1956, Al-Jarida al-Rismiyyah, 14 June 1956 (Egypt). 71 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 30 Nov. 2012, art. 82. 72 . “The legislative power consists of the House of Representatives and the Consultative Assembly. Each exercises its authority in accordance with the Constitution.” Id. 73 . Id. at art. 102. 74 . Id. at art. 131. 75 . Id. at art. 202. 76 . Id. at art. 152. 77 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 30 Nov. 2012, art. 152.

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In fact, a cursory examination of this special court reveals that it has a predominantly judicial formation. Unlike, Article one of Law No. 247/1956, which designated a special court of twelve members (half of them are parliamentary members) to try the president, the court of impeachment designated by Article 152 of the 2012 Consti- tution did not include any parliamentary representation. Once again, Article 152 reduced the parliamentary role in the impeachment trial when it assigned the Public Prosecutor the task of presenting the case against the president instead of requiring the House of Representatives to appoint managers to do so.78 In practice, designating the Public Prosecutor to present the impeachment case against the president is likely to hurt the neutrality of the case. More precisely, according to Article 173, the Public Prosecutor is appointed by the president upon a recommendation from the Supreme Coun- cil of Judges.79 Consequently, the president is directly involved in the appointment of the Public Prosecutor who would present the case of impeachment against him, a situation that confers considerable doubt upon the neutrality of the impeachment process.80 In determining punishments for impeachment, Article 152 requires the law should specify the sentence; however, if convicted, the president is to be removed from office. Thus, according to the article, punishment for impeachment would be removal from office in addition to sanctions prescribed in law, which in this case would be

78 . Id. 79 . Article 173 required the Supreme Council of Judges to choose the Public Prosecutor from among the deputies to the President of the Court of Cassation, the presidents of the appeals courts, and the assistant public prosecutors. Id. at art. 173.

80. Indeed, one can argue that according to Article 173, the Supreme Council of Judges plays the vital role in the process of appointing the Public Prosecutor by choosing him, and that the role of the president is limited to issuing a presidential decree to enforce the choice. However, in fact, a careful examination of Article 173 reveals that the process of appointing the Public Prosecutor requires that two different actors take two separate actions: (1) the Supreme Council of Judges to choose, (2) and the president to enforce the choice through a presidential decree. Thus, the presidential role in such appointment is evident and indeed indispensable given that the Article 173 did not address the case of who should prevail if the president refuses the choice of the Supreme Council of Judges. Id.

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Holding the Executive Accountable Vol. IV, No. I the penal code as well as Law No. 247/1956.81 The penal code governs punishment for felonies−death, life imprisonment, aggravated imprisonment, or imprisonment.82 On the other hand, Law No. 247/1956 sets the punishment for high treason−death or life or aggravated imprisonment.83 Adopting the approach of the previous constitutions, Article 152 ignored any mention of disqualification as a possible punishment for impeachment; however, as mentioned above, according to Article 25 of the penal code, disqualification is an ancil- lary penalty that should be imposed in case of a felony conviction.84 It is evident that Article 152 failed to confirm the political nature of the impeachment process. Specifically, the article neglected to define the crime of high treason as an impeachable offense against the president, making referral to the penal code and Law No. 247/1956, which lists criminal punishments for high treason, inevitable. Fur- ther, the article’s approach in designating the court of impeachment with a purely judicial formation, lacking any parliamentary representation, raises considerable doubts, i.e., whether the impeachment process is of a political nature in that it requires the involvement of the people’s representatives in the trial of the president; or whether it is of a criminal nature in that a regular judicial court is sufficient to try the president. In fact, the 2012 Constitution would have been an ideal opportunity to adopt an impeachment clause to ensure the political accountability of the president, not only because it was the outcome of a popular uprising that toppled a defiant dictator, but also because it maximized the political role to be played by the president. More precisely, the Constitution designated the president as an arbiter between the three governmental powers when Article 132 assigned him the role of maintaining separation of powers.85 The concept of presidential arbitration was first introduced by President Charles de Gaulle of France and was adopted in the French

81 . Id. at art. 152. 82 . Law No. 58 of 1937 (Criminal Code of 1937, reformed in 1952), al-Jarida al- Rismiyyah, Aug. 1937 (Egypt). 83 . Law No. 247 of 1956, al-Jarida al-Rismiyyah, 14 June 1956 (Egypt). 84 . Law No. 58 of 1937 (Criminal Code of 1937, reformed in 1952), al-Jarida al- Rismiyyah, Aug. 1937, art. 25 (Egypt). 85 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 30 Nov. 2012, art. 132.

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Constitution of 1958.86 According to this concept, the president was assigned a new role and thereby became more involved in political life of the nation as his role developed from merely guaranteeing the safeguards to enable each power to function properly, to becoming an actual arbiter between them.87 Consequently, the political accountability of the president should have been raised to a level commensu- rate with his new political role, in order to help curb any official misconduct. Ironically, the 2012 Constitution included a clause that is likely to relieve the president from most of his political accountability.88 According to Article 141, the president assumes his powers through the prime minister and the prime minister’s deputies and ministers, except for powers of defense, national security, foreign policy, appointing the prime minister and civilian and military public officials, representing the state and concluding treaties, declaring war and emergency, issuing pardons and reducing sentences.89 Accordingly, this article assumes two scenarios, both of which negate the political accountability of the president.90 First, the article could be construed to mean that powers − such as dissolving the parliament, enforcing laws, setting out the state’s public policy, and issuing presidential decrees with the power of law − are to be performed only by the prime minister, his deputies, or the ministers, without there being any role for the president.91 In this scenario, the cabinet would be solely accountable for the consequences of such actions.92 Alternatively, the article could be interpreted as designating the cabinet to be the prin-

86. “The President of the Republic shall ensure due respect for the Constitution. He shall ensure, by his arbitration, the proper functioning of the public authorities and the con- tinuity of the State. He shall be the guarantor of national independence, territorial integrity and due respect for Treaties.” FRENCH CONSTITUTION OF 1958, Art. 5. 87 . MICHEL BELANCER, CONTRIBUTION A L’ETUDE DE LA RESPONSABILITE POLITIQUE DU CHEF DE L’ETAT 1276 (1979). 88 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 30 Nov. 2012, art. 141. 89 . Nariman Youssef, Egypt’s Draft Constitution Translated, EGYPT INDEP. (Feb. 12, 2012), art.166, http://www.egyptindependent.com/news/egypt-s-draft-constitution- translated. 90 . Id. 91 . Zaid Al-Ali, The Constitutional Court’s Mark on Egypt’s elections, FOREIGN POL’Y (Jun. 6, 2013), http://foreignpolicy.com/2013/06/06/the-constitutional-courts-mark-on- egypts-elections. 92 . Youssef, supra note 89.

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Holding the Executive Accountable Vol. IV, No. I cipal, and delegating those powers to the president. Consequently, if the president committed misconduct during his exercise of the dele- gated powers, the responsibility would be divided between him and the principal (cabinet), and the latter would bear most of it.93 Finally, regarding ministerial impeachment, Article 166 of the 2012 Constitution granted the President, the Public Prosecutor, and one-third of the House of Representatives the right to submit a motion to impeach the prime minister or a member of the cabinet for crimes committed during or because of their tenure, whereas a decision to impeach can only be issued by two-thirds of the membership of the House of Representatives.94 It is evident that the article did not list impeachable offenses; however, according to Law No. 79/1958, members of the cabinet can be impeached for the following reasons: high treason, violation of the basic provisions in the constitution, ma- nipulation of prices of commodities, real estates, governmental securities, or securities of the stock markets to obtain a personal benefit or for a third party, influence peddling, violation of laws and regulations that costs the state or a public domain entity a financial loss, interference in the work of the judiciary or any entity with judicial jurisdiction, or interference in the election or the referendum process to direct its result either by issuing illegal orders or taking illegal procedures.95 Further, the article required the impeached official to stop all work until a verdict is reached and stated that termination of his service does not preclude a prosecution. Ultimately, since the article did not determine the court of impeachment and the trial procedures, Law No. 79/1958 should govern these issues.

93 . Id. 94 . Id.

95 . First: Political Headlines, ARAB REPUBLIC OF EGYPT MINISTRY OF FOREIGN AFFAIRS (Jun. 8, 2006), http://www.mfa.gov.eg/English/MediaCenter/ForeignMedia/Pages/PressDetails.aspx? Source=6781921f-3993-444a-859e-ee26ce851de8&newsID=0500a298-e562-48af- a08c-cc8d2f0341b1; Law No. 46 of 1972 (Civil Code), al-Jarida al-Rasmiyya, 28 Oct. 1972, No. 77(2) & 119 (Egypt).

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The Constitution of 2014 A. Background The Muslim Brotherhood’s gateway into Egypt’s political life was the 2011 Revolution. After their recognition as a banned group during Mubarak’s era changed to a recognized political power, they established a political party (The Freedom and Justice Party), which dominated the 2012 parliament with the Salafists, and their candidate Mohamed Morsi winning the presidency.96 However, right from the start, it seemed that Morsi’s days in the presidency were limited. Morsi’s dramatic fall started with his 2012 Constitutional Declaration. On November 22, 2012, Morsi issued a constitutional declaration immunizing the Constituent Assembly responsible for drafting the 2012 Constitution from being dissolved by the judiciary, as well as immunizing its work from being challenged in courts,97 in violation of the 2011 Constitutional Declaration issued by the SCAF that it would serve as the country’s fundamental law pending the drafting of a new constitution.98 Moreover, the declaration dismissed the Prosecutor General Abdul Majid Mahmoud, who was appointed by Mubarak, and replaced him with one of Morsi’s allies in violation of the Judicial Authority Act.99 Morsi’s declaration ordered a retrial for those accused of killing the protesters in Mubar- ak’s era by the Egyptian courts.100 Further, the declaration immunized Morsi’s presidential decrees from judicial oversight101 and authorized him to take any necessary measures to protect the revolution.102

96 . Freedom and Justice Party, ENCYCLOPEDIA BRITANNICA (2015), http://www.britannica.com/topic/Freedom-and-Justice-Party. 97 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 30 Nov. 2012, art. 5. 98 . “The text of law forbids any action or administrative decision from being absolved of judicial oversight.” CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 23 Mar. 2011, art. 21. 99 . Id. at art. 3. “The Supreme Judicial Council considers all matters related to the appointment, promotion, transference, delegation, and loaning of judges and public prosecutors . [T]he General Prosecutor could [resign his office] asking to return to the judiciary.” Law No. 46 of 1972 (Civil Code), al-Jarida al-Rasmiyya, 28 Oct. 1972, No. 77(2) & 119 (Egypt). 100 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 30 Nov. 2012, art. 1. 101 . Id. at art. 2. 102 . Id. at art. 6.

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Indeed, the 2012 Constitutional Declaration’s approach in immunizing presidential decrees, the work of the Constituent Assembly, from judicial oversight, and dismissing the prosecutor general and ordering a retrial for those who had been previously acquitted, upset the general public and lead to massive protest movements against President Morsi.103 Likewise, the declaration aroused the anger of the judiciary to such an extent that the Supreme Judicial Council stated the declaration was an “unprecedented assault on the independence of the judiciary and its rulings.”104 In response to the declaration, Gabihet al-enkaz al-watani (Na- tional Salvation Front), a coalition of certain liberal parties and political figures, was formed.105 The Front asked Morsi to rescind the declaration and claimed that he lost legitimacy when he refused to do so.106 Later on, under the pressure of wide protests, Morsi agreed to amend the declaration and to limit the scope of his immunized decrees to include only “sovereign matters.”107 Further, he agreed that there would be retrials for those who had been previously acquitted only if new evidence was presented.108 Nevertheless, these concessions did not sufficiently quell public outrage against Morsi. In fact, it was not only the 2012 Constitutional Declaration that outraged the general public against president Morsi. The 2012 Con-

103 . Mohamed El Baradei described the declaration as follows, “Morsi today usurped all state powers & appointed himself Egypt’s new pharaoh.” Michael Birnbaum, Egypt’s President Morsi takes sweeping new powers, WASH. POST (Nov. 22, 2012), http://articles.washingtonpost.com/2012-11-22/world/35512324_1_morsi-new- powers-muslim-brotherhood. 104 . Egypt’s Top Judges Slam Morsi’s New Powers, BBC NEWS (Nov. 24, 2012), http://www.cbsnews.com/8301-202_162-57553859/egypts-top-judges-slam-morsis- new-powers/?pageNum=2. 105 . Profile: Egypt’s National Salvation Front, BBC (Dec.10, 2012), http://www.bbc.com/news/world-middle-east-20667661. The National Salvation Front was formed on November 22, 2012, in response to the 2012 Constitutional Declara- tion. The Front included a coalition of thirty-five political parties as well as political figures and activists, all of whom belonged to the liberal-leftist bloc. The Front significantly contributed to mobilizing the public opinion against Morsi and the whole regime by heavily criticizing his policies. Id. 106 . Id. 107 . Egypt: Who Holds Power?, BBC (July 3, 2013), http://www.bbc.co.uk/news/world- middle-east-18779934. 108 . Mohamed Fadel Fahmy & Jason Hanna, Egypt’s Morsi Says Court Can’t Overturn Him, CNN (Nov. 23, 2012), http://www.cnn.com/2012/11/22/world/meast/egypt- morsy-powers/.

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2015-2016 UB Journal of International Law stitution itself significantly contributed in escalation of the outrage. Many Egyptians doubted the legitimacy of the 2012 Constitution for several reasons including the low approval rating and population turnout in the referendum, several boycott movements from the liberal bloc, the widely disseminated message that the constitution restricted freedoms and imposed a strict religious ideology, and the Is- lamists’ dominance over the formation of the Constituent Assembly. Morsi’s poor performance as a ruler made matters even worse. According to Morsi’s opponents, he desperately attempted to erase Egypt’s moderate-diverse identity through his approach in Akhwanet “Brotherhooding”109 the country by favoring his party’s fellows and appointing them to leadership positions.110 Moreover, Morsi defiant- ly ignored the several calls, prompted by its apparent poor performance failure to meet the people’s economic demands and expectations, to dismiss the government..111 Further, police brutality persisted during Morsi’s regime.112

109 . Matt Bradley & Reem Abdellatif, Five Things to Know About Egypt Protests, WALL ST. J. (July 1, 2013), http://blogs.wsj.com/middleeast/2013/07/01/five-things-to-know- about-egypt-protests/. 110 . Tara Rhodes, Protests in a New Perspective: A Discourse Analysis of the Arab Spring, APSA Ann. Meeting Paper (2013), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2302074&download=yes.

111. Dahlia Kholaif, Morsi’s downfall hammers Hamas, AL-JAZEERA (July 10, 2013), http://www.aljazeera.com/indepth/features/2013/07/2013710113757741999.html. On July 24, 2012, President Morsi appointed Hesham Qandil as Egypt’s prime minister. Besides the fact that Qandil’s appointment was met with tremendous objections due to his inexperience, Qandil’s cabinet also displayed a pitiful performance in dealing with Egypt’s economic and political challenges. For instance, instead of focusing on how to develop and use the country’s resources, the cabinet depended on foreign subsidies and aid, especially from Qatar, and entered negotiations with the Internation- al Monetary Fund to provide the country with a $4.8 billion dollar loan. Further, the cabinet proved a great dismal failure on the diplomatic front, when it failed to reach an agreement with Ethiopia regarding Sad Al-nahda (Renaissance Dam), which is believed to be causing a significant reduction of water availability in Egypt. On July 3, 2013, an Egyptian appeals court upheld a verdict dismissing Qandil’s cabinet and sentencing him to one year in prison for refusing to execute a judicial judgment to re- nationalize Tanta Flax and Oil Company after it was sold to private interests in 2005. During Qandil’s cabinet, Egyptians continued to suffer from high prices, fuel shortag-

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The deteriorating security state in the country must also not be overlooked. Morsi was blamed for failing to restore security after the chaotic conditions that followed the 2011 Revolution. In fact, the security situation became even worse during his regime.113 Many Egyp- tians attributed blame for worsening the nation’s security to Morsi when he granted presidential pardon for Islamist extremists convicts,114 including Al-Gama’a al-Islamiyya (The Islamic Group), a

es, and power outages. Many Egyptians and analysts claimed that as a result of Mor- si’s friendly relations with the Hamas government, he had allowed fuel to be smuggled out through the underground tunnels in Sinai to the Gaza Strip, which caused the fuel shortages and power outages in Egypt. Id. 112. Yolande Knell, Egypt police beating: The strange case of Hamada Saber, BBC (Feb. 4, 2013), http://www.bbc.co.uk/news/world-middle-east-21330132; Egypt protester El-Gendy was tortured: Security sources, AHRAM ONLINE (Feb. 6, 2013), http://english.ahram.org.eg/NewsContent/1/64/64151/Egypt/Politics-/Egypt-protester- ElGendy-was-tortured-Security-sour.aspx. For instance, on February 1, 2013, protesters against president Morsi marched to Itahadia, the presidential palace asking Morsi to resign his office and allow early presidential election. The protesters clashed with the police forces as well as Morsi’s supporters. The police showed excessive force, using tear gases and snipers against the protesters. Moreover, on February 3, 2013, the Egyptian media unveiled a video of a man who had been stripped naked, dragged, and beaten by the police before being put in a police van. The man, who was identified as an unemployed fifty-year-old named Hamada Saber, appeared on state television from a police hospital where he claimed that he was beaten by protesters who took his money and clothes. However, after he was moved to a public hospital, he changed his testimony, claiming that he was beaten and stripped naked by the police forces and that he had been forced to give false testimony, as he feared further police abuse. Further, On February 4, 2013, Mohamed El-gendy, a political activist, died in a hospital because of the grave injuries he suffered after being arrested, detained, and tortured by the police. Id.

113. Martin Chulov &Patrick Kingsley, Mohamed Morsi ousted in Egypt’s second revolution in two years, GUARDIAN (July 4, 2013), http://www.theguardian.com/world/2013/jul/03/mohamed-morsi-egypt-second- revolution. 114 . In fact, many of the released Islamist convicts were responsible for the hate speeches against Egypt’s Christians and anti-Morsi activists. Indeed, these Islamists tried to im- plant in the people’s minds that those who oppose Morsi in fact oppose Islam and God’s rule. Mohamed Fadel Fahmy, The Jihadist Threat in Egypt’s Sinai, AL- MONITOR: THE PULSE OF THE MIDDLE EAST (July 22, 2013), http://www.al- monitor.com/pulse/originals/2013/07/jihad-threat-egypt-sinai.html.

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2015-2016 UB Journal of International Law prominent extremist Islamic group,115 and allowing them into Egypt’s social and political life.116 In April 2013, Morsi continued to ignore the public outrage as the severity of violence continued to escalate. A political youth activist group founded Haraket Tamarod (Rebel Movement) with the intention of collecting signatures calling for President Morsi to step down and allow an early presidential election.117 After announcing that it had successfully secured more than twenty-two million signatures against the regime,118 Tamarod called for massive demonstrations on June 30, the first anniversary of Morsi’s inauguration, in Tahrir Square and around the presidential palace.119 By June 30, mil- lions of Egyptians flooded the streets nationwide in rage over Morsi’s regime, and the popular chant Al-sha ͑ab Yureed Esqaat al-Nizam (“The people want to topple the regime”) could be heard loudly.120 Amid these circumstances, on July 1, the Commander-In-Chief of the Egyptian Armed Forces General Abdul Fattah el-Sisi issued a 48- hour ultimatum, giving Morsi until July 3 to reach a political com-

115. Al-Gama’a al-Islamiyya (“the Group”) was founded in the early 1970 in Egypt for the purpose of jihad, establishing an Islamic state and reviving the Caliphate system. The Group’s activity was always accompanied with by extreme violence. For example, the Group was responsible for the assassination of President Sadat in 1981 and for the killing of more than 100 policemen and soldiers in Asyut city in southern Egypt. Further, in 1997, the Group was responsible for the Luxor massacre of least 62 people, most whom were Swiss tourists, in Luxor city. The United States and the European Union list Al-Gama’a al-Islamiyya as a terrorism group. Tom Perry, Egypt’s Mursi frees Is- lamists jailed by Mubarak, REUTERS (July 31, 2012), http://www.reuters.com/article/2012/07/31/us-egypt-mursi-pardon- idUSBRE86U13K20120731. 116 . For instance, on June 17, 2013, President Morsi appointed Adel el-Khayat, an Islam- ists who belongs to Al-Gama’a al-Islamiyya, as governor of Luxor, a major tourism city in Egypt. In fact, the appointment sparked the anger of the Egyptians since it is know that Al-Gama’a al-Islamiyya was linked to the Luxor massacre. Id. 117 . Mbaye Lo, Morsi, the last caliph-president of Egypt, MONDOWEISS (July 28, 2013), http://mondoweiss.net/2013/07/morsi-the-last-caliph-president-of-egypt. 118 . Nada Hussein Rashwan, Egypt’s ‘Rebel’ Campaign Gathered 22 mn Signatures, Says Spokesman, AHRAM ONLINE (June 29, 2013), http://english.ahram.org.eg/NewsContent/1/64/75244/Egypt/Politics-/Egypts-Rebel- campaign-gathered—mn-signatures,-say.aspx. 119 . Egypt on the Brink: Nationwide Protests Call for Morsi’s Ouster, N.Y. POST (June 30, 2013), http://nypost.com/2013/06/30/egypt-on-the-brink-nationwide-protests-call-for- morsis-ouster/. 120 . Id.

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Holding the Executive Accountable Vol. IV, No. I promise and meet the demands of the people.121 The following day, as the Army’s ultimatum deadline approached, Morsi addressed the nation rejecting the Army’s ultimatum and refusing to resign declaring “he would defend legitimacy and his office with his life”122 By the end of the ultimatum and under the pressure of massive demonstrations, on July 3, General El-Sisi announced that Morsi was removed from power.123 Further, General El-Sisi announced the suspension of the 2012 Constitution and installed Chief Justice Adly Mansour as an interim president during a transition period until a new constitution could be drafted and new presidential and parliamentary elections could be held.124 Following his ousting, Morsi was arrested and detained.125 Fur- ther, the Egyptian Public Prosecution Authority charged him and leaders of the Muslim Brotherhood with inciting police forces and their allies to kill the protesters,126 and with collaboration with a foreign entity to escape from prison after the 2011 Revolution.127 Morsi

121 . Salma Abdelaziz, Reza Sayah & Ben Wedeman, Egypt’s military gives Morsy ultimatum, CNN (July 2, 2013), http://edition.cnn.com/2013/07/01/world/meast/egypt- protests/index.html?hpt=hp_t1. 122 . Egypt’s Mohammed Morsi Defiant as Protest Deaths Rise, BBC (July 3, 2013), http://www.bbc.co.uk/news/world-middle-east-23154233. In fact, Morsi’s opponents saw this statement as the green light to his supporters and allies to crack down on his protesters and demonstrators. Likewise, many analysts as well as political activists interpreted the president’s statement to mean a call for a civil war. Id. 123 . David Kirkpatrick, Army Ousts Egypt’s President; Morsi is Taken Into Military Cus- tody, N.Y. TIMES (July 3, 2013), http://www.nytimes.com/2013/07/04/world/middleeast/egypt.html?_r=0. 124 . Id. 125 . What’s Become of Egypt’s Morsi, BBC (June 16, 2015), http://www.bbc.com/news/world-middle-east-24772806. 126 . The Prosecution Authority based the accusation against Morsi on the events that took place in December 2012, when masses of protesters organized a sit-in at the presidential palace and the security forces were so reluctant to protect the palace. Consequent- ly, leaders of the Muslim Brotherhood called their supporters to defend the palace and the president. As president Morsi did nothing regarding this call, many of the Brother- hood and the president supporters attacked the protestors causing many injuries and deaths among them. Id. 127 . During the events of the 2011 Revolution, on January 28, president Morsi was arrested and detained in Wadi el-Natroun, before being released along with some fellows in the Muslim Brotherhood two days later under suspicious circumstances. Indeed, amid the chaotic atmosphere that accompanied the 2011 Revolution, many prisons were broken into by unknown people and thousands of prisoners, including president Morsi, were able to escape. In June 2013, while investigating a case against an inmate who had

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2015-2016 UB Journal of International Law made his first appearance in court on November 4, 2013, making him the second Egyptian president to be criminally prosecuted in almost three years.128 Pursuant to a constitutional declaration issued on July 8, 2013, a ten-member committee of legal experts was formed by a presidential decree to amend the Constitution of 2012 before having these amendments discussed by a fifty-member committee representing major stakeholders in Egyptian society.129 The amended constitutional copy was approved in a public referendum in January 2014.130 B. Impeachment in the 2014 Constitution Article 159 of the 2014 Constitution provides, A charge of violating the provisions of the Constitution, high treason or any other felony against the President of the Republic is to be based on a motion signed by at least a majority of the members of the House of Representatives. An impeachment can only be issued by a two-thirds majority of the members of the House of Representatives and after an investigation to be carried out by the Prosecutor General. If there is an impediment, he is to be replaced by one of his assistants.131

fled, and after hearing the testimonies of police officials and intelligence agents, Ismai- lia Criminal Court blamed the Palestinian militant group Hamas for helping the prisoners to escape during the revolution including those detained in Wadi el-Natroun. Further, the Court emphasized that strong evidence confirms that president Morsi and the Brotherhood’s leaders conspired with Hamas for the jailbreak. Id. 128 . Kirkpatrick, supra note 123. 129 . According to Article 28 of the declaration, two members of the Supreme Constitution- al Court and its College of Commissioners, and two of the judges of the State Council, and four constitutional law professors should be represented in the Committee of Ten. Article 29 provided that members of the Committee of Fifty should represent Political parties, Workers, Peasants, Members of Labor Unions and Federations, National Councils, Churches, Al-Azhar, Armed Forces, Police, and Public figures. Also, the committee should include at least ten youth from both sexes. Mohamed Abdelaal, Re- forming the Constitution of Egypt: An Ugly Institutional Competition, C.J.I.C.L. (Mar. 25, 2015), http://cjicl.org.uk/2015/03/25/reforming-the-constitution-of-egypt-an-ugly- institutional-competition/. 130 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014. 131 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014, art. 159.

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At the outset, it seems that Article 159 follows the same impeachment mechanism found in Article 152 of the 2012 Constitution, with only two slight differences regarding the impeachable offenses and the majority rule required to impeach the president. Unlike Arti- cle 152 of the 2014 Constitution, under which the president could be impeached only for committing high treason or felony, Article 159 of the 2014 Constitution added violation of the constitution as a possible impeachable offense. In fact, it seems that President Morsi’s misconduct (when in violation of the 2011 Constitutional Declaration he immunized his presidential decrees as well as the work of the Constituent Assembly from judicial oversight) was the motive that urged the drafters to include “violation of the constitution” as an impeachable offense when committed by the president. Further, listing violation of the constitution as an impeachable offense enhances the political sense of the process of presidential impeachment, given that criminality overshadows offenses like high treason and felony in the content of the Egyptian legislation and jurisprudence. Second, unlike Article 152 of the 2012 Constitution, which required at least one-third of the members of the House of Representa- tives to sign the impeachment resolution against the president, Article 159 of the 2014 Constitution requires that such resolution be signed by a majority of the members of the House of Representatives.132 Despite that difference, both Articles require a two-thirds majority of the House to impeach the president.133 As mentioned, requiring any kind of majority to submit an impeachment resolution seems unreasonable since it acts as an undue. Further, a simple majority in the House seems sufficient to impeach the president simply because a decision to impeach represents the indictment against the president, not the conviction. In case an impeachment decision is reached, Article 159 requires “the President of the Republic to cease all work [in which] this is treated as a temporary impediment preventing the President from car-

132. CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 30 Nov. 2012, art. 152; CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014, art. 159. 133 . Id.

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2015-2016 UB Journal of International Law rying out presidential duties until a verdict is reached in the case.”134 According to Article 160, if the president encounters a temporary impediment that renders him unable to exercise his official duties, the prime minister should take over the presidency.135 Consequently, if the president is impeached in the House, the prime minister should assume the office of presidency until a verdict is reached.136 Interestingly, the Article states that the House can only be con- vened to vote on impeaching the president after the Prosecutor Gen- eral has investigated the case. The Article is extremely vague regarding whether the Prosecutor General should replace the committee of investigation found in Law No. 247/1956, responsible for investigating the impeachment resolution and for filtering any partisan interest or malicious motive. Further, the 2014 Constitution followed the same course of the 2012 constitution regarding the appointment of the Prosecutor General, stating that the Prosecutor General is to be selected by the Supreme Judicial Council and appointed by a presidential decree,137 which again guarantees the involvement of the president in the process of the prosecutor’s appointment.138 Thus, designating the Prosecutor General to investigate the case against the president could hurt the impartiality of the impeachment process.139 In designating the court of impeachment, the 2014 Constitution adopted the same formation introduced in the 2012 Constitution, in which Article 159 provided,

The President of the Republic is tried before a special court headed by the president of the Supreme Judicial Council, and with the membership of the most senior deputy of the president of the Supreme Constitutional Court, the

134 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014, art. 159. 135 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014, art. 160. 136 . Id. 137 . Id. “Public prosecution is carried out by a Prosecutor General who is selected by the Supreme Judicial Council from among the Deputies to the President of the Court of Cassation, the Presidents of the Court of Appeals or the Assistant Prosecutor Generals, by virtue of a presidential decree for a period of four years, or for the period remaining until retirement age, whichever comes first, and only once during a judge’s career.” Id. 138 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014. 139 . Id.

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most senior deputy of the president of the State Council, and the two most senior presidents of the Court of Appeals.140 In fact, the approach of Article 159 in designating a special court to try the impeached president is justified by the fact that, unlike the 2012 Constitution, the 2014 Constitution established a unicameral parliament with only one legislative chamber, the House of Repre- sentatives.141 Consequently, the parliament lacks the upper house that could be vested with the power to try impeachments. Notably, Arti- cle 159 failed to avoid the criticism that it does not include any parliamentary representation, which was directed at the formation of the court of impeachment in the 2012 Constitution. In addition, Article 159 did not follow Article 3 of Law No. 247/1956, stating that the House should elect managers to present the case; however, it designated the Prosecutor General to present the case of impeachment against the president before the court of impeachment, which is likely to harm the neutrality of the case.142 Fur- ther, according to the Article, the Prosecutor General is to investigate the case before the House convenes to vote, and if there is an impediment, one of his assistants should take over such investigation.143 Moreover, the Article requires that if the Prosecutor General is im- peded from presenting the case against the president, he should be replaced by order of seniority.144 Consequently, a situation could occur wherein the Prosecutor General would investigate the case, but somebody else would present it. The Article requires that the investigation and the trial procedures are to be organized by Law No. 247/1956.145 Regarding punishment of impeachment, the Article requires the convicted president to be removed from office without prejudice to other penalties.146 Ac-

140 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014; CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 30 Nov. 2012 , art. 159. 141. Records from the drafting process reveal that the drafters of the 2014 Constitution abolished the Shura Council found in the 2012 Constitution as the upper legislative chamber, arguing that it costs the state a financial burden without having a real legislative function. CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014. 142 . Id.; Law No. 247 of 1956, al-Jarida al-Rismiyyah, 14 June 1956. (Egypt). 143 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014. 144 . Id. 145 . Id. 146 . Id.

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2015-2016 UB Journal of International Law cording to Article 6 of Law No. 247/1956 and Article 10 of the penal code, these penalties would be death, life imprisonment, aggravated imprisonment, or imprisonment for high treason and felonies.147 Fur- ther, Article 25 of the Penal Code requires disqualification from assuming public office if one of the previous penalties is secured against the convict.148 Interestingly, in the course of enhancing presidential accountability, the 2014 Constitution took an unprecedented step stating that the House of Representatives may vote no confidence against the president.149 Specifically, Article 161 stipulates that, The House of Representatives may propose to withdraw confidence from the President of the Republic and hold early presidential elections upon a causal motion signed by at least a majority of the members of the House of Representa- tives and the approval of two-thirds of its members. . . Upon the approval of the proposal, the matter of withdrawing confidence from the President of the Republic and holding early presidential elections is to be put to public referendum by the Prime Minister. If the majority approves the decision to withdraw confidence, the President of the Republic is to be relieved from his post. . . . 150 In fact, Article 161 reveals the concerns of the constitutional drafters that after two uprisings, which toppled two regimes and severely affected the country politically and economically, a constitutional tool should be adopted to curb the presidential powers and redress presidential misconducts.151 Though these concerns are legitimately justified, the constitutional drafters addressed them in the wrong way. To be precise, subjecting the president to two different mechanisms to unseat him, impeachment and confidence withdrawal, reveals the great confusion the drafters had regarding systems of governance. On the first hand, a parliamentary vote of no-confidence is a

147 . Law No. 58 of 1937, Al-Jarida al-Rismiyyah, 14 June 1956 (Egypt). 148 . Law No. 58 of 1937 (The Penal Code), al-Jarida al-Rasmiyya, Aug. 8, 1937, amended by Law No. 95 of 2003, al-Jarida al-Rasmiyya, June 19, 2003 (Egypt). 149 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014, art. 161. 150 . Id. 151 . Id.

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Holding the Executive Accountable Vol. IV, No. I mechanism known in parliamentary systems to redress the executive where the president is a mere figurehead and the prime minister is the real executive. On the second hand, impeachment is the recognized tool in both presidential and semi-presidential systems to redress the executive’s misconduct where the president is a powerful figure who is highly involved in managing the state. Provisions of the 2014 Constitution reveal that Egypt is not by any means a parliamentary republic, such as would be appropriate to include an article that the president could be overthrown by a parliamentary no-confidence vote. Further, despite the indispensability of having a constitutional tool that effectively holds the executive accountable for his official misconduct, the executive is likely to delegate most of his powers or to refrain from taking crucial decisions if he feels restricted by prosecution or removal. Accordingly, an attempt to trap the president between impeachment and the no-confidence vote would be of no use. Finally, the 2014 Constitution recognized ministerial impeachment when Article 173 stated that,

[T]he Prime Minister and members of the government are subject to the general rules organizing investigation and trial procedures, if they commit crimes while exercising the functions of their posts or because of them. . . .In case of a charge of high treason against any members of the government, the provisions stipulated in Article 159 of the Consti- tution apply.152 Indeed, a careful examination of the article reveals that it is untenably vague regarding the impeachable offenses against ministers. Specifi- cally, the beginning of the article subjects the prime minister and members of the government to the general rules of investigation and trial procedures if they commit crimes while exercising their official duties, without precisely naming any crime.153 Next, the end of the

152 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014, art. 173. In addition, Article 131 of the constitution granted the House of Representatives the right to withdraw confidence from the prime minister, his deputies, ministers, or their deputies upon at least one-tenth of the members of the House, whereas a decision to withdraw confidence requires a majority of members. CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014, art. 131. 153 . Id.

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2015-2016 UB Journal of International Law article subjects the prime minister and members of the government to provisions of Article 159, regarding impeaching the president, if they commit high treason.154 Consequently, the article considers high treason as the only offense that merits impeachment procedures against the prime minister and members of the government, whereas provisions of Law No. 79/1958 should govern the impeachment procedures and trial.155 However, if the prime minister and members of the government committed any crime other than high treason that is related to the performance of their official duties, they should be subject to general rules of investigation and trial procedures, which in this case would be provisions of the Civil and Commercial Proce- dures Code, Criminal Procedures Code, and Penal Code.156 In short, of fair assessment to the impeachment articles introduced in the 2014 Constitution reveals another failure in liberating the impeachment process from the dominance of criminality. Despite the fact that the 2014 Constitution introduced “violation of the constitution” as an offense meriting presidential impeachment, which helped to emphasize the political nature of the impeachable offense, it failed to define the crimes such as high treason and felony as impeachable offenses referring to Law No. 247/1956 and the Penal Code, which consider them criminal offenses.157 Likewise, as mentioned in the context of the 2012 Constitution, designating a special court with a dominant judicial formation without any parliamentary involvement to try the president raises considerable problems in that the impeachment trial excludes participation by the people’s representatives.158

154 . Law No. 79 of 1958, al-Jarida al-Rasmiyya, 1958 (Egypt). 155 . Id. 156 . Law No. 13 of 1968, al-Jarida al-Rasmiyya, 5 Sep. 1968 (Egypt). Law No. 150 of 1950, al-Jarida al-Rasmiyya, 15 Oct. 1951, amended by Law No. 95 of 2003, Al- Jarida Al-Rasmiyya, 19 June 2003 (Egypt). Law No. 58 of 1937, al-Jarida al- Rismiyyah, 8 Aug. 1937, amended by Law No. 95 of 2003, al-Jarida al-Rasmiyya, 19 June 2003 (Egypt). 157 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 11 Sept. 1971, as amended, May 22, 1980, May 25, 2005, Mar.26, 2007, Jan. 18, 2014; Law No. 247 of 1956, al-Jarida al- Rasmiyya, 1956 (Egypt). 158 . Law No. 58 of 1937, Al-Jarida Al-Rasmiyya, 8 Aug. 1937, amended by Law No. 95 of 2003, al-Jarida al-Rasmiyya, 19 June 2003 (Egypt).

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Practicing Impeachment: The Case of President Morsi An impeachment mechanism cannot be fairly judged until it is tested. Specifically, carrying out an impeachment could reveal to what extent a rigid impeachment provision is likely to achieve its purpose regarding the clearness of impeachable offenses and the efficiency of the legislative chamber in weighing the official misconduct and initiating the indictment procedures. Further, carrying out an impeachment tests the possibility of arguing and proving the official misconduct before the court of impeachment and the ease of access to governmental records. The absence of a precedent in which an Egyptian president has been impeached and removed renders the determination of the standards of impeachment a challenging process. However, this section will create a hypothetical case of impeachment by subjecting Presi- dent Mohamed Morsi to impeachment procedures. More precisely, it will address the question of what might have occurred if the Egyp- tians had chosen a constitutional tool to overthrow President Morsi and whether it may have been possible to remove him through impeachment. Before proceeding to answer this question, it should be noted that the motive for examining President Morsi’s case rather than President Mubarak’s is that the ousting of the former is more recent and had serious repercussions. Further, the fact that President Morsi was an elected president who had assumed power through a popular election urges consideration of his ousting as a paradigm for an impeachment case that might have happened. In the course of determining Morsi’s misconduct, we should exclude crimes for which he is currently being prosecuted simply because most of them are criminal in nature, such as inciting the police to kill protesters. Moreover, crimes that could be construed to mean high treason offenses–such as Morsi’s alleged collaboration with a foreign entity (the Palestinian militant group, Hamas) to escape from prison after the 2011 Revolution–were, if true, committed before he assumed power, though he was accused of them after his ouster. Likewise, we should also exclude misconduct that could be classified under the broad category of poor performance simply because impeachment is a very grave step that should not be triggered by a mere mistake in governance or bad political decision, as long as such mistake or decision does not entail a violation of the country’s laws, con-

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2015-2016 UB Journal of International Law stitution, or national interest. Further, it is hard to find a definite measuring stick for poor performance, since what may be regarded by some as a poor performance deserving of impeachment may not be so in the eyes of others.159 Consequently, Morsi’s conduct in refusing to dismiss an apparently inefficient cabinet and favoring his party’s members, as well as his economic and political acts, should be excluded. Having excluding Morsi’s non-impeachable misconduct, the question becomes what misconduct can appropriately be considered in building the impeachment case against him. One could argue that Morsi’s 2012 Constitutional Declaration, in which he immunized his presidential decrees and the work of the Constituent Assembly from judicial oversight in violation of the SCAF 2011 Constitutional Dec- laration and dismissed the Prosecutor General in violation of the Ju- dicial Authority Act, constituted an impeachable offense.160 Addi-

159 . The Iraqi constitution of 2005 is the only constitution of an Arabic country that allows the impeachment of the president for crimes, certain of which could be classified as poor performance. Article 138(2) (D) reads, “The House of Representatives can remove any member of the Presidency Council by a majority of three-fourths of its members because of inefficiency or lack of integrity.” Article 138, Section 2, Doustour Joumhouriat al-Iraq [The Constitution of the Republic of Iraq] of 2005. Ali Youssef Al-shoukry defines lack of integrity to mean, “abusing using the office of the presidency to achieve material or moral illegal gains.” Further, he defines presidential inefficiency to mean “incapacity and inability of the president to perform the constitutional functions entrusted to him.” ALI YOUSSEF AL-SHOUKRY, AL-TANASOB BAIN SOLTET RA’YES EL-DAWLA W MAS’OLYATHO FI AL-DASATIR AL-ARABIA [PROPORTIONALITY BETWEEN THE POWER AND THE RESPONSIBILITY OF THE PRESIDENT IN THE ARAB CONSTITUTIONS] 170, 171 (2010). 160. In fact, the 2012 Constitutional Declaration raises the dilemma of the constitutionality of constitutional acts, specifically, whether constitutional acts and amendments can be subjected to judicial review to determine their constitutionality. The constitutions of some countries grant the Supreme and Constitutional Courts such powers, such as Art.146(a) of the 1991 Romanian Constitution. ROMANIAN CONSTITUTION, 1991, art. 146; Ion Deleanu & Emil Boc, The Control of the Constitutionality of Laws in Roma- nia, 2(1) J. CONST. L. E. & C. EUROPE 119, 120, 124 (1995); Ioan Deleanu, Separation of Powers: Constitutional Regulation and Practice of the Constitutional Court, 3(1) J. CONST. L. E. & CENT. EUROPE 57, 63 (1996). See Yaniv Roznai, Legisprudence Limi- tations on Constitutional Amendments? Reflections on the Czech Constitutional Court’s Declaration of Unconstitutional Constitutional Act, 8(1) VIENNA J ON INT’L CONST. L. 29 (2014) (showing how the Czech Constitutional Court extended the scope of its judicial review to include the constitutionality of constitutional acts and analyzing the court’s decision regarding declaring the Constitutional Act no 195/2009 coll, on Shortening the Fifth Term of Office of the Chamber of Deputies to be unconstitu-

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Holding the Executive Accountable Vol. IV, No. I tionally, his conduct in denigrating the judiciary in his public speeches, in which he blamed judges for acquitting Mubarak and his assistants and rigging elections and referenda during Mubarak’s regimes, could be considered an impeachable offense. Further, his conduct in issuing a presidential decree reinstating the 2012 Islamist-dominated People Assembly, after it had been dissolved by a decision of the Su- preme Constitutional Court (SCC), was potentially impeachable.161 Ultimately, one could see Morsi’s decision to pardon the Islamist terrorist-convicts as an act that deserves impeachment, given that the decision likely contributed to the worsening of the already deteriorated security status in the country.162

tional.) Despite the fact that the 2012 Constitutional Declaration was a constitutional act, its legitimacy is highly doubtful as compared to that of the 2011 Declaration. Spe- cifically, the 2011 Declaration was approved by virtue of a popular referendum, and so gained its legitimacy from the approval of the public. In contrast, the 2012 Declaration was a unilateral act issued by a mere presidential decree, without subsequent approval by the public.

161. On June 14, 2012, the Supreme Constitutional Court ruled that the parliamentary election that inaugurated the People’s Assembly was unconstitutional because one-third of the seats were illegitimately filled because political parties ran for independent seats, and ordered the dissolution of the entire legislative chamber. al- Mahkamah al- Dusturiyah al- Ulya [Supreme Constitutional Court], case no. 20, 2012. In fact, the Court’s decision ignited the anger of Egypt’s Islamists and pro-Morsi who blockaded the Court’s building to overturn its ruling. As a result, on July 8, 2012, President Morsi issued a presidential decree ordering the re-institution of the dissolved legislative chamber ignoring the Court’s decision. See Mohamed Abdelaal, Egypt’s Public Pro- test Law 2013: A Boost to Freedom or a Further Restriction?, 9 US-CHINA L. REV. n5 (2014). Further, rumors started to leak that the SCC was considering dissolving the Constituent Assembly formed by the People Assembly to draft the 2012 Constitution, a matter which rushed the 2012 Constituent Assembly to vote on the constitutional draft in brief all-night sessions. NOAH FELDMAN, THE FALL OF THE ARAB SPRING 16, 17 (Yale Law School Occasional Paper, 2013). 162 . Some politicians and activists blamed Morsi’s decision to release the Islamist convicts for the turmoil and bombings that occurred after his ouster.

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The question, then, is judging these offenses according to the impeachment clause found in the 2012 Constitution, could President Morsi have been impeached? As mentioned before, Article 152 of the 2012 Constitution lists felonies and high treason as impeachable offenses if committed by the president.163 For the sake of discussion, we will assume that Morsi committed this misconduct after the approval of the 2012 Constitution. The situation is that Morsi immunized his presidential decrees, dismissed the Prosecutor General, deni- grated the judiciary, and pardoned convicted Islamic extremists. Although this misconduct seems to have been a clear violation of the 2012 Constitution, none of these acts are considered felonies or acts of high treason in the meaning of Article 152 of the 2012 Constitu- tion. As mentioned earlier, according to Article 10 of the Penal Code, felonies are those crimes punishable by death, life imprisonment, aggravated imprisonment, and imprisonment.164 Further, Arti- cle 5 of Law No. 79 of 1958 considers “every crime that affects the safety or the external or the internal security of the state, or the republic regime” to be high treason.165 It is obvious that misconduct such as violating the law and the constitution, denigrating the judiciary, and pardoning radical convicts does not fall under the category of either felonies or high treason. Further, although the Egyptian Penal Code punishes public officials who refrain from executing a judicial ruling by imprisonment and removal from office, such offenses are considered misdemeanors that do not fall into the category of either impeachable felonies or treason.166 Consequently, it would not likely have been possible to impeach President Morsi under the 2012 Con- stitution.

163 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 11 Sept. 1971, as amended, May 22, 1980, May 25, 2005, Mar. 26, 2007, Jan. 25, 2012, art. 152. 164 . Law No. 58 of 1937, al-Jarida al-Rasmiyya, 8 Aug. 1937, amended by Law No. 95 of 2003, al-Jarida al-Rasmiyya, 19 June 2003 (Egypt). 165 . Law No. 79 of 1958, al-Jarida al-Rasmiyya, art. 5, (Egypt). 166. “Imprisonment and removal from office shall be the penalty inflicted on any public official or civil servant who uses the authority of his position in suspending the execution or orders issued from the government, or the provisions of laws and statutes, or in delaying the collection of funds and fees, or deliberately refrain from executing a ruling or order issued by the court or by any competent authority.” Law No. 58 of 1937, al-Jarida al-Rasmiyya, 8 Aug. 1937, amended by Law No. 95 of 2003, al-Jarida al- Rasmiyya, 19 June 2003 (Egypt).

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Regarding Morsi’s crisis with the SCC, as mentioned before, the conflict escalated when Morsi issued a presidential decree ordering the reinstitution of the People’s Assembly after it was dissolved by the SCC for its unconstitutional formation.167 In delivering its decision, the SCC firstly argued that Law No. 108 of 2011, which replaced certain articles of Law No. 38 of 1971 regarding the organization of the People’s Assembly, allowed political parties to run for in- independent seats as well as partisan seats in the People’s Assembly, and thus one-third of the Assembly’s seats had been illegitimately filled.168 In the second part of its decision, the court recommended the dissolution of the entire assembly, grounding its reasoning on the idea that since the 2012 parliamentary election was conducted pursuant to an unconstitutional law, Law No.108 of 2011, the entire legislative assembly must be declared null. A fair analysis of the Court’s decision reveals that the Court’s decision to nullify the Assembly’s partisan seats was valid because Law No. 108 of 2011 allowed political parties to run for independent seats, and thus there was direct infringement of the principle of equality. However, the Court’s decision to dissolve the entire legislative chamber was highly questionable. At first sight, the issue before the Court was only the constitutionality of Law No. 108 of 2011 in allowing political parties’ candidates to run for independent parliamentary seats and to the requirement that independent candidates include which political party they were affiliated with in the final electoral sheet.169 Accordingly, the Court’s approach in proceeding to dissolve the entire Assembly is likely to be interpreted as having exceeded its jurisdiction. Moreover, not only did the Court go beyond its designed jurisdiction by recommending the dissolution of the Assem- bly, it did so above the will of the people who had elected the As-

167 . See Mohamed Abdelaal, Egypt’s Public Protest Law 2013: A Boost to Freedom or a Further Restriction?, 9 US-CHINA L. REV. n.5 (2014) [hereinafter Public Protest Law]. 168 . Law No.108 of 2011, Al-Jarida Al-Rasmiyya, 19 July 2011 (Egypt). “Candidates seeking membership of the People’s Assembly should present their application in the constituencies allocated to [independent candidates]. [This provision] should be applied on candidates running on the list of political parties.” Id. at art. 1. 169 . “The Electoral Commission in each provision should prepare two final sheets; one includes names of independent candidates and the other includes names of partisan candidates. Each sheet must include the status of each candidate as well as the party to which he affiliates.” Id. at art. 2.

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2015-2016 UB Journal of International Law sembly’s members. Further, it should be borne in mind that Mubarak appointed the Court’s justices who issued this ruling and most of them opposed Morsi’s rule and policies.170 Thus, their desire to dissolve the Assembly just for being heavily dominated by the Islamists and the Muslim Brotherhood should be taken into account.171 Of course, one can sincerely argue that the law is the law and a judicial ruling must be honored regardless of the judge who issued it, especially if we know that Morsi’s intent towards the SCC was not innocent, either. Specifically, Morsi did not try to render the Court free from the executive’s influence. The 2012 Constituent Assembly, which was responsible for drafting the 2012 Constitution, deliberately “minimized the Court’s membership from 18 justices to 11” in an attempt to control the Court and exclude justices who opposed Mor- si.172 Likewise, the Constitution of 2012 followed that of 1971, granting the president the sole power to appoint the president of the Court.173 One can sincerely argue that the law is the law and a judicial ruling must be honored regardless of the judge who issued it; however, when a ruling is highly questionable to the extent of challenging the will of the people, something should happen. Consequently, I think Morsi would not have been impeached for reinstating the dissolved Assembly simply because his conduct seems to have been an attempt to correct the Court’s mistake given that the Court’s decisions are final and cannot be judicially appealed. Second, given the tense relations between President Morsi and the judiciary, the former engaged in a series of misconduct regarding insulting the judiciary and degrading its legitimacy. For instance, in one of his public speeches, President Morsi accused an Egyptian

170 . After the issuance of the 2012 Constitutional Declaration, some of the Court’s justices publicly criticized Morsi claiming that he has lost his legitimacy as a president for seizing powers and immunizing his decisions and decrees. Id. 171 . Id. 172 . Abdelaal, supra note 46, at 210.

173. CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 25 Jan. 2012, art. 176 (“Appoint- ments take place by a decree from the President of the Republic.”) Law No. 48 of 1979, al-Jwida al-Rasmiyya, art. 5 (Egypt)(Further, the Court’s law provides that “The President of the state has the sole power to appoint the president of the Court, while members of the Court are to be appointed by the President with the approval of the Supreme Judicial Counsel.”)

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Holding the Executive Accountable Vol. IV, No. I judge named ͑Ali El-Nimer of rigging elections and referendums conducted in Mubarak’s era without providing any evidence.174 Further, Morsi argued that at least twenty-two judges were corrupt and had to be investigated and dismissed from the judiciary.175 According to Ar- ticle 186 of the Egyptian penal code,

Whoever affronts by any of the foregoing methods, the standing, dignity, or authority of a judge in connection with a court action, shall be penalized with imprisonment for a period not exceeding six months and a fine of not less than five thousand pounds and not exceeding ten thousand pounds or either penalty.176 Thus, in the meaning of the penal code, insulting or denigrating the judiciary is a misdemeanor that does not belong in the category of impeachable offenses under Article 152 of the 2012 Constitution, which allows impeachment of the president for felonies or treason. Third, Morsi’s conduct in pardoning convicts, while ignoring final judgments secured against them as well as the country’s surge in insecurity, could be construed as an impeachable offense. Specifical- ly, as mentioned earlier, Morsi pardoned many of the Islamic extremists who belong to Al-Gama’a al-Islamiyya (The Islamic Group), which has been responsible for many terrorist attacks in Egypt, and appointed one of its members as the governor of Luxor City despite being involved in the 1997 Luxor massacre of tourists. Additionally, shortly after assuming power, Morsi issued a presidential decree pardoning twenty-six convicts, some of whom had been sentenced to death for joining terrorist groups, inciting violence, and sabotaging police and military facilities.177 It should be noted that one of those pardoned convicts is Wagdy Ghoneim, who was convicted of inciting violence against non-Muslims and funding terrorist militias, and has

174 . Mariam Rizk, Egypt: Islamist to be Tried for Insulting Judges, ASSOCIATED PRESS (Oct. 12, 2013), http://news.yahoo.com/egypt-islamist-tried-insulting-judges- 155750489.html. 175 . Id. 176 . Law No. 58 of 1937 (Promulgating the Penal Code), al-Jarida al-Rasmiyya, art. 186 (Egypt). 177 . Law No. 75 of 2012 (Presidential Decree), al-Jarida al-Rasimyah, 26 July 2012 (Egypt).

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2015-2016 UB Journal of International Law been banned from entry to the United States, Canada, the United Kingdom, Switzerland, and Bahrain for glorifying violence and committing hate speech.178 Further, in September 2012, Morsi issued two decrees whereby he pardoned 123 Sudanese convicted of military felonies and misdemeanors for entering Egypt illegally and being present in prohibited military bases while carrying weapons.179 Of course, one may argue that pardoning convicts lies within the limits of the constitutional presidential powers since Article 149 of the 2012 Constitution grants the president such power. However, in fact, given the chaos and surge of insecurity that Egypt witnessed after the ouster of Mubarak and during the regime of Morsi, pardoning these convicts was apparently an unwise decision. By this decision, Morsi, who was an unpopular president, aimed to appease Egypt’s Is- lamists and sought their support along with his group, the Muslim Brotherhood, in an attempt to form a coalition to stand against Egypt’s liberal bloc. Despite the fact that pardoning convicts is a constitutional presidential power, Morsi’s conduct in pardoning Is- lamic extremists would likely be construed as abusing his presidential powers. Specifically, President Morsi abused his presidential power in pardoning convicts when he used that power to appease his allies and gain a political victory over his opponents while ignoring the country’s security interest; this was misconduct that deserved impeachment.180 In fact, impeachment has been and will continue to be an ineffective tool to hold the executive accountable for his official misconduct. As mentioned, President Morsi was unlikely to be impeached because the impeachment clause in the 2012 Constitution failed to define the impeachable offenses and focused only on criminal ac-

178 . Law No. 75 of 2012 (Presidential Decree), al-Jarida al-Rasimyah, 26 July 2012 (Egypt). 179 . Law No. 155 of 2012 (Presidential Decree), al-Jarida al-Rasimyah, 3 Sept. 2012 (Egypt); Law No. 157 of 2012 (Presidential Decree), al-Jarida al-Rasimyah, 3 Sept. 2012 (Egypt). 180 . See supra section II. The catchall phrase “high crimes and misdemeanors” found in the U.S. Federal Constitution accommodates non-criminal acts such as maladministration and betrayal of the public trust. In fact, Morsi’s misconduct in immunizing his presidential decrees, undermining the judiciary, and abusing his presidential powers in pardoning Islamic convicts could be construed to mean maladministration and betrayal of the public trust.

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Holding the Executive Accountable Vol. IV, No. I countability. Given the fact that the impeachment clause introduced in the 2014 Constitution greatly resembles that of the 2012 Constitu- tion, the next president is likely to escape the grip of impeachment. Accordingly, in Egypt, finding an alternative to impeachment in holding the executive accountable for official misconduct is a must. As mentioned in the introduction, we find the recall election to be the best alternative. The Recall Election as an Alternative Direct democracy, which means “delegation of political decisions to the ordinary voter,” was the outcome of the doctrine of the consent of the governed, i.e. that an official derives his legitimacy from the consent of those who elect him.181 Consequently, direct democracy guarantees greater involvement by ordinary citizens in the process of decision-making, especially when the legislative bodies are mistrusted because of factional interests or malicious motives.182 Direct democracy encompasses the notion of recall elections in addition to the initiative and referendum.183 On the first hand, the initiative enables ordinary voters to be directly involved in the process of legislation in that they can submit petitions proposing constitutional or legislative amendments.184 A referendum entails “the referring of a law or ordinance or any specific question to the people for decision at the polls.”185

181 . Nathaniel Persily, The Peculiar Geography of Direct Democracy: Why the Initiative, Referendum, and Recall Developed in the American War, 2 MICH. L. & POL’Y REV. 11, 13 (1997); THOMAS E. CRONIN, DIRECT DEMOCRACY: THE POLITICS OF INITIATIVE, REFERENDUM, AND RECALL 12 (1999). (“Governments are instituted among men deriv- ing their just powers from the consent of the governed.”) THE DECLARATION OF INDEPENDENCE (U.S. 1776). 182 . THOMAS E. CRONIN, DIRECT DEMOCRACY: THE POLITICS OF INITIATIVE, REFERENDUM, AND RECALL 10 (1999). 183 . Id. Proponents of direct democracy claim that, “Referendum, initiative, and recall are nonviolent means of political participation that fulfill a citizen’s right to petition the government for redress of grievances. Direct democracy increases voter interest and election-day turnout, giving the citizen more of a role in governmental processes might lessen alienation and apathy.” Id. at 11. 184 . Id. at 2. 185 . FRANK PARSON ET AL., A PRIMER OF DIRECT-LEGISLATION 3 (1906). Thomas Cronin defines the referendum to mean “[referring] a proposed or existing law or statute to voters for their approval or rejection.” CRONIN, supra note 182, at 12.

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On the second hand, the recall is a mechanism whereby ordinary voters can remove an elected official before the end of their designated term.186 Nathaniel Persily argues that recall is “a method by which voters check their legislators at the polls.”187 Moreover, Timothy Power emphasizes the concept of direct democracy in a recall claiming, “recall elections are based on the principle that a popular mandate can be revoked by the people themselves, and thus constitute a powerful instrument of democratic accountability.”188 Likewise, De- los Wilcox argues that recall elections “[guarantee the] right of the people to discharge their public servants when these public servants cease to be satisfactory to them.”189 Further, Thomas Cronin defines it as “the procedural democracy device that allows voters to discharge and replace a public official.”190 Recall, an efficient tool of direct democracy to discharge elected officials, differs from impeachment.191 The common thread between the recall and impeachment is their constitutional function in unseat- ing an incompetent elected official; however, unlike impeachment, which usually is initiated by legislators and requires a crime named in the constitution, ordinary voters (citizens) can initiate recall elections without requiring a specific crime to be committed by the recalled official.192 The recall device, which originated in the practice of Athenian democracy, allows citizens to vote to expel a politician from office.193 Likewise, the Swiss customary law authorized citizens to vote to remove elected officials and councilmen before the expiration of their terms.194 In the United States, the recall tool can be dated back to the colonial era; it first appeared in the laws of the General Court of the Massachusetts Bay Colony in 1631 as a device to remove elected of-

186 . Rachel Weinstein, You’re Fired!, The Voters’ Version of “The Apprentice”: An Analy- sis of Local Recall Elections in California, 15 S. CAL. INTERDISC. L. J. 131, 133 (2005). 187 . Persily, supra note 181, at 13. 188 . TIMOTHY J. POWER, POLITICAL RIGHT IN POST AUTHORITARIAN BRAZIL: ELITES, INSTITUTIONS, AND DEMOCRATIZATION 123 (2000). 189 . DELOS F. WILCOX, GOVERNMENT BY ALL THE PEOPLE 169 (1912). 190 . CRONIN, supra note 182, at 125. 191 . Weinstein, supra note 186, at 133. 192 . Id.; Persily, supra note 181, at 13. 193 . CRONIN, supra note 182, at 128. 194 . Id. at 129.

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Holding the Executive Accountable Vol. IV, No. I ficials.195 Moreover, during the American Revolution, the Articles of Confederation authorized state legislatures to recall delegates of the Continental Congress appointed by them.196 The recall was also debated at the ratifying conventions; the New York convention proposed a constitutional amendment whereby state legislatures could recall their senators.197 Further, the Virginia Plan proposed a bicameral legislature in which recall was to be applied in the national legislature.198 However, the recall provision failed to survive and was not adopted in the federal constitution.199 The Progressive Movement in the west witnessed the rise of direct democracy provisions in the U.S. western states.200 However, such states limited direct democracy to the initiative and referendum without including the recall device. For instance, in 1898, South Da- kota amended its constitution to allow its citizens to propose laws through initiatives and to approve laws through the referendum device.201 In 1902, the state legislature of California amended the state constitution so that citizens of certain cities could amend their char-

195 . Joshua Spivak, California’s Recall: Adoption of the “Grand Bounce” for Elected Offi- cials, 81 CAL. HIST. 20, 22 (2004). 196 . “A power reserved to each state, to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the Year.” THE ARTICLES OF CONFEDERATION, art. V; see CRONIN, supra note 182, at 129. 197 . CRONIN, supra note 182, at 129. 198 . “…members of the first branch of the National Legislature ought to be elected by the people of the several States . and to be subject to recall.” 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 21 (Max Farrand, ed., 1911). Patrick Henry of Virginia argued that the constitution lacks “a mechanism to ensure that senators would follow the instructions of their states.” Weinstein, supra note 186, at 134.

199. Those who opposed a federal recall provision argued that it would cause the national senators to serve at the “emotionalism of the people.” Alexander Hamilton argued that the proposed national senate should be in some measure a check upon the state governments.” CRONIN, supra note 182, at 129. 200 . Persily, supra note 181, at 15. Populists and progressives argued that impeachment provisions in the federal constitution were insufficient to redress elected officials claiming that “impeachment punishes only malfeasance in office, not misfeasance or nonfeasance,” and that impeachment is hard to reach beyond the boundaries of graft. CRONIN, supra note 182, at 130. 201 . Steven L. Plot, The Origins of the Initiative and Referendum in South Dakota: The Po- litical Context, 12 GREAT PLAINS Q. 181 (1992).

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2015-2016 UB Journal of International Law ters by initiative.202 From 1898 to 1959, as direct democracy provisions continued to rise, many states and cities adopted the initiative and referendum in their charters and constitutions as a means of direct democracy.203 In 1903, the idea of a recall was first adopted in the United States on the municipal level when Los Angeles approved a new charter that included the recall device.204 In 1908, Michigan and Oregon became the first two states to adopt the recall device on the state level.205 To- day, Nineteen states allow the recall of state officials;206 Thirty-six states and the District of Colombia allow recalling local officials207 and Twenty-nine states include recall provisions in their statutes, allow the use of such provision at the local level throughout the state.208 Since the adoption of the recall device in the constitutions and statutes if these states, many state legislators and local officials have been recalled. However, only two governors—Lynn Frazier of North Dakota in 1921 and Gray Davis of California in 2003—have been successfully recalled.209

202 . Weinstein, supra note 186, at 135 (citing V.O. Key & Winston W. Crouch, THE INITIATIVE AND THE REFERENDUM IN CALIFORNIA 428 (G.M. McBride et al. eds., 1939)). 203. For instance, in 1910, California cities of Alameda, Berkeley, Eureka, Long Beach, Los Angeles, Modesto, Monterey, Palo Alto, Petaluma, Richmond, Riverside, Sacra- mento, Salinas, San Bernardino, San Diego, San Francisco, San Louis Obispo, Santa Barbara, Santa Cruz, and Santa Monica adopted the initiative and referendum. After being admitted into the United States, in 1956, Alaska adopted the initiative and referendum in its constitution. Further, states including Illinois, Florida, and Mississippi passed constitutional amendments allowing the initiative and referendum. Id, at 134- 35. 204 . Id. at 136. Dr. John Randolph Haynes, founder of the Direct Legislation League of Los Angeles and a member of the committee to revise the Los Angeles charter, played a great role in adopting the recall provision after he observed the role of the recall device in Switzerland, arguing that it is an effective mechanism for overthrowing incompetent or corrupt officials. Cronin, supra note 182, at 131. 205 . Spivak, supra note 195, at 23; See also Recall of State Officials, NAT’L. CONF. OF ST. LEGIS. (Sept. 11 2013), http://www.ncsl.org/research/elections-and-campaigns/recall- of-state-officials.aspx#History. 206 . Id. These states are Alaska, Arizona, California, Colorado, Colorado, Georgia, Idaho, Illinois, Kansas, Louisiana, Michigan, Minnesota, Montana, Nevada, New Jersey, North Dakota, Oregon, Rhode Island, Washington, and Wisconsin. 207 . Weinstein, supra note 186, at 138. 208 . NAT’L. CONF. OF ST. LEGIS. , supra note 205. 209 . Id.

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Despite the fact that state statutes vary widely regarding the required number of signatures to initiate a recall, and the grounds for recall,210 states are likely to follow the same procedures to initiate the recall device. Specifically, registered voters should initiate a petition campaign;211 once the petition meets the required number of signatures, it should be circulated to an election committee for review.212 Once the committee declares the petition and its signatures valid, a recall election must be held.213 Internationally, Venezuela seems to be the only country that lists the recall as a constitutional tool for removing a president.214 Specifi- cally, Article 233 of the 1991 constitution provides that “[T]he Presi- dent of the Republic shall become permanently unavailable to serve by reason of any of the following events: death, resignation, or recall by popular vote.”215 Further, a detailed constitutional mechanism regarding the number of signatures required to initiate a recall petition and the percentage of the vote required to render the recall referendum valid can be found in Article 72 of the 1991 Constitution, which reads,

210 . Id. Only eight states require specific grounds for recall. These states are Alaska, Geor- gia, Kansas, Minnesota, Montana, Rhode Island, Virginia, and Washington. Most of these grounds are limited to some forms of malfeasance, incompetence, misconduct or misuse in office, violation of oath, conviction of certain felonies and misdemeanor, or negligence of duty. 211 . Elizabeth Mack, Comment, The Use and Abuse of Recall: A Proposal for Legislative Recall Reform, 67 NEB. L. REV. 617, 625 (1988), http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1818&context=nlr. 212 . Id. 213 . Id

214. POWER, supra note 188. In Philippines, according to the 1987 Constitution and the Local Government Code of 1991, elected local government officials are subject to removal by recall. A recall election may be called if either at least 25% of the registered voters in a Local Government Unit or a majority of all elected official in this Local Government Unit endorse it. In Brazil, Domingos Leonelli, a member of the Brazilian Democratic Movement Party (PMDB) submitted a proposal to adopt the recall device to the National Constituent Assembly (ANC) arguing that “the notorious lack of accountability of elected officials is perhaps the leading popular complaint against the political system.” However, the Assembly overwhelmingly rejected the proposal. 215 . CONSTITUCIÓN DE LA REPÚBLICA BOLIVARIANA DE VENEZUELA , Dec. 15, 1999, art. 233.

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[A]ll offices filled by popular vote are subject to revoca- tion. Once one-half of the term of office to which an official has been elected has elapsed, a number of voters representing at least 20% of the registered voters in the affected con- stituency may petition for the calling of a referendum to re- voke that official’s mandate. When a number of voters equal to or greater than the number of those who elected the official vote in favour of the recall, provided that a number of voters equal to or greater than 25% of the total number of registered voters vote in the recall referendum, the official’s mandate shall be deemed revoked and immediate action shall be taken to fill the permanent vacancy as provided for by this constitution and by law.216 The recall device has only been used against the Venezuelan President Hugo Chávez.217 The February 2003, the first attempt to recall President Chávez occurred when opposition figures campaigned for collecting signatures against Chávez after a nationwide strike.218 In August 2003, Súmate, a Venezuelan volunteer civic society organization, succeeded in gathering and submitting approximately 3.2 million signatures to the National Electoral Council (CNE).219 How- ever, the CNE invalidated the signatures, arguing that they had been collected prematurely before the elapse of the midpoint of the presidential term as provided by Article 72 of the constitution.220 In November 2003, the second attempt to recall President Chá- vez commenced when the opposition began to collect a new set of signatures in support of recalling him. According to the 20% of voters required by Article 72, only 2.4 million signatures are needed;221 however, the opposition claimed to have submitted more than 3.4

216 . CONSTITUCIÓN DE LA REPÚBLICA BOLIVARIANA DE VENEZUELA , Dec. 15, 1999, art. 72. 217 . See generally OBSERVING THE VENEZUELA PRESIDENTIAL RECALL REFERENDUM: COMPREHENSIVE REPORT (The Carter Center, 2005), https://www.cartercenter.org/documents/2020.pdf [hereinafter VENEZUELA PRESIDENTIAL RECALL REFERENDUM]. 218 . Id. at 26. 219 . Id. 220 . Id. In fact, the CNE was formed by the Venezuelan Supreme Court (TSJ) after the Na- tional Assembly failed “to reach a consensus and choose unbiased, nonpartisan representatives.” 221 . Id. at 28.

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Holding the Executive Accountable Vol. IV, No. I million to the CNE for verification in December of the same year.222 In April 2004, the CNE declared 1,910,965 signatures valid;223 375,241 completely invalid;224 and 1.192.914 signatures dubious with the possibility of being reaffirmed.225 Accordingly, in May, the CNE held a reparo process allowing owners of dubious signatures to reaf- firm them.226 The outcome of this reparo was that 754,397 signatures were accepted, bringing the total number of signatures collected to 2.5 million.227 As a result, in June, the CNE announced that a recall referendum would be held on August 15, 2004.228 The referendum was defeated when 59% of the electorate (5.8 million) voted in favor of President Chávez to stay in office,229 while 41% (3.9 million) voted in favor of recalling him.230 The Case of Egypt The overthrow of Mubarak and Morsi through popular uprisings, notwithstanding the presence of impeachment clauses in the 1971 and 2012 Constitutions, reveals the extent to which the impeachment device is ineffective and very difficult to be triggered in Egypt for many reasons. For example, as previously mentioned, due to the vagueness of the impeachment clause means it is very hard to stand on the actual grounds of impeachment and that it only raises the criminal accountability of the executive, while ignoring political accountability.231 The weakness of Egypt’s successive parliaments significantly contributed to rendering the impeachment device ineffective because they were subordinate to the chief executive. Specifically, Mubarak ruled the country for almost thirty years, during which the National Democratic Party (“NDP”), Mubarak’s political party, was the ruling

222 . Id. 223 . VENEZUELA PRESIDENTIAL RECALL REFERENDUM, supra note 217. 224 . Id. 225 . Id. 226 . Id. 227 . Id. 228 . VENEZUELA PRESIDENTIAL RECALL REFERENDUM, supra note 217. 229 . Id. 230 . Id. 231 . Sahar Aziz, Egypt’s Impeachment Alternative, SADA (Oct. 31, 2013), http://carnegieendowment.org/sada/?fa=53475 [hereinafter Impeachment Alternative].

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2015-2016 UB Journal of International Law party. Consequently, during Mubarak’s era, the parliamentary majority was always reserved to the NDP, which rendered the country without an effectively represented opposition. Similarly, during Morsi’s era, the parliament was heavily dominated by Egypt’s Islam- ists, particularly the Freedom and Justice Party (“FJP”), the political party of the Muslim Brotherhood, under the flag of which President Morsi ran for the presidency.232 Thus, parliament, who initiates the impeachment procedures, was always controlled by the president, which rendered the whole process unlikely to occur.233 As previously mentioned, listing withdrawal of confidence as a constitutional way to discharge the president aside from the impeachment device is likely to be interpreted as an attempt by the drafters to curb the president by a parliamentary vote of no confidence rather than the ineffective impeachment device. Therefore, the recall election could be the optimal alternative to impeachment in Egypt. Egypt had a remarkable incident where certain elements of the recall device were prematurely tested. After public outrage escalated against President Morsi, the opposition urged him to call for a recall election so that he could run again for the presidency; however, Morsi remained adamant and refused. A movement, named Tamarod (Rebel), formed with the intention of gathering signatures from citizens to call for President Morsi to step down and allow an early presidential election. Both the positions of the opposition, in gathering signatures calling for an early election, and of President Morsi, refusing to step down, were justified. At first, it seems that the opposition sought to avoid chaos that accompanied Mubarak’s removal by deferring to a civilized, constitutional means of direct democracy in which ordinary voters would be involved through signing petitions calling for an early presidential election. On the other hand, President Morsi’s conduct in refusing to call for an early election can be criticized for ex- posing the country to chaos and the climate of polarization between his allies and opponents. He cannot be blamed constitutionally because, according to the 2012 Constitution, the only way to discharge the president is either through his resignation or impeachment. Con-

232 . Aziz, supra note 49. 233 . Impeachment Alternative, supra note 231.

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Holding the Executive Accountable Vol. IV, No. I sequently, since the constitution does not stipulate so, it would have been just a presidential grant if Morsi had agreed to step down and allow an early presidential election.234 Indeed, the process of initiating a petition and gathering signatures against President Morsi reveals the extent to which the Egyp- tians were near the recall device and how they sought the involvement of ordinary voters to overthrow Morsi when it was clear that the parliament was too weak to initiate impeachment procedures against the President. However, the only obstacle that the opposition met was that the recall device was not recognized in the 2012 Constitu- tion. It seems that the drafters of the 2014 Constitution did not realize the importance of the recall in the Egyptian political system, since it was excluded from the country’s current constitution. Since the impeachment provision is unlikely to redress presidential misconduct for the reasons stated above, the recall device seems to be the adequate alternative. In fact, an amendment is indispensable to adopt the recall device as a constitutional way to discharge the president with Egypt’s current constitution. However, the question is, how can the recall provision to be drafted? First, the proposed provision should provide that the president could be recalled after the expiration of half of the presidential term, “two years.”235 In fact, two years will be sufficient to evaluate the work of the president and his competency, as any judgment before this period is likely to be hasty and premature. Second, the recall provision should require that at least 40% of the registered voters (20 million)236 petition by gathering signatures, calling for a popular referendum to recall the president. Third, the president should be deemed recalled if at least 45% of the total number of the registered voters (22.5 million) vote in the referendum, provided that at least a number of voters who elected the president vote “yes” to recall the president.

234 . Id. 235 . CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014, art. 140 (“The Presi- dent of the Republic is elected for a period of four calendar years, commencing on the day the term of his predecessor ends. The President may only be reelected once”). 236 . The total number of the eligible registered voters in Egypt is estimated to be 50 million. Egyptian elections preliminary results, JADALIYYA (Jan. 9, 2012), http://www.jadaliyya.com/pages/index/3192/the-concise-idiots-guide-to-the-egyptian- elections.

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Finally, the recall provision should also assign the task of receiving and checking the validity of the signatures and calling for the referendum to the National Elections Commission established by the 2014 Constitution,237 and specify that the Supreme Constitutional Court (SCC) should oversee any dispute regarding the number and validity of the gathered signatures. Further, the provision should specify whether only ordinary voters have the right to participate in the petition campaign or whether civil society organizations could be involved as well. However, the main drawback of the recall device is the lack of definition of the misconduct required by the law to recall the official. More specifically, the proposed recall provision should make clear that the president must display certain misconduct such as malfeasance, misfeasance, or apparent incompetency to be recalled. Such a requirement is very important in a country like Egypt where the opposition is far from being organized, and people are likely to be led by the media to avoid removing a president for being unpopular and to avoid harassing or threatening him. Further, if the impeachment provision is to be revoked, defining what counts as presidential misconduct in the recall provision will be inevitable. However, the recall mechanism could be challenging and risky in that it could produce a polarized political atmosphere in which a petition campaign could be initiated to remove the executive just for his policy’s views,238 which might lead to political turmoil.239 More- over, the process of gathering the required number of signatures might be costly and require a dedicated number of individuals to place the initiative on the ballot.240 Further, the fact that ordinary voters who initiate the petition campaign bear the burden of proving the official misconduct makes the process of holding the president

237 . “The National Elections Commission is exclusively responsible for managing referenda and presidential, parliamentary and local elections, which includes the preparation and update of a database of voters, proposal and division of constituencies, setting regulations for and overseeing electoral campaigns, funding, electoral expenditure declaration thereof, and managing the procedures for out-of-country voting by expatriate Egyptians, and other procedures, up to the announcements of results.” CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 18 Jan. 2014, art. 208. 238 . CRONIN, supra note 182, at 146. 239 . Id. 240 . Id. at 62.

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Holding the Executive Accountable Vol. IV, No. I accountable through the recall more challenging due to their inexperience and the difficulty of gaining access to official records and documents.241 Thus, criticism of the recall petition campaign for being lengthy and costly could be contained by allowing volunteers from each province and registered civic organizations to participate under the supervision of the National Electoral Commission. Further, one could rely on the role of political parties, impartial media, and civic community awareness campaigns to train ordinary voters to initiate a petition and to educate them that removing the president is a grave step, which should be taken only with high caution when determined by a simple yes or no vote. Conclusion In sum, given that Egypt’s impeachment clause is weak and vague to effectively hold the president accountable, as well as the difficulty of proving official corruption in a court of law and the fact that the recall device provides a reasonable and effective check on the executive when the legislature is inefficient or corrupt; guarantees the involvement of the people in the process of removing the elected official; increases trust in the elected official who survives a referendum; and limits undesirable factional interests that might steer the impeachment vote in the legislature,242 the recall device seems to be a good embodiment of accountability as well as an excellent alternative to impeachment in Egypt.

241 . Id. at 135. 242 . Id. at 134–35. Indeed, ordinary voters might be directed by their factional interests in initiating the petition campaign; however, such factional interests are likely not to be as influential as law-makers during impeachment. Further, any factional interest or malicious motive is likely to be defeated in the recall referendum. Id.

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A Case Study: Law and Emotions Within the Kingdom of the Netherlands

Nanneke Quik-Schuijt & Irene Broekhuijse

AUTHORS: Nanneke Quik-Schuijt, LLM; Member of the Senate of the Netherlands from June 12th 2007, until June 9th 2015. Before that she served as a judge (dealing with cases involving children), from 1975-1990. Then she became the vice-president of the district court of Utrecht (1990-2007). She was i.a. involved with Kingdom Affairs.

Irene Broekhuijse LLM, PhD; Assistant Professor Constitutional and Administrative Law at the Open University of the Netherlands. She obtained her PhD on the constitutional equality between the countries of the Kingdom of the Netherlands. This article has been originally written and accepted as a contribution to the XXVII World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR), July 26 – August 2015.

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TABLE OF CONTENTS Introduction ...... 57 A Historical Background ...... 60 The Present Legal Framework ...... 66 A. Autonomy ...... 66 B. Autonomy Guaranteed when Cooperating ...... 69 C. Influence in Kingdom Affairs ...... 69 The Rose of Leary ...... 71 A. The Theory in a Nutshell ...... 71 Conclusion ...... 73 APPENDIX I: A Selection of Articles from the Charter ...... 75 APPENDIX II: The Rose of Leary ...... 78

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Introduction Whether you are a Christian or not, you cannot deny the truth of the proverb “[a] brother offended is more unyielding than a strong city, and quarrelling is like the bars of a castle,”1 especially when you study the constitutional relationship between the Netherlands and its former colonies Aruba, Curacao, and St. Maarten. The Netherlands, Aruba, Curacao and St. Maarten are four countries that together constitute the Kingdom of the Netherlands.2 These countries feel so wronged by one another that emotions often take over. In July 2014, for instance, the Prime Minister of Aruba desperately went on a hunger strike because he felt that the autonomy of Aruba had been illegally infringed upon as the Kingdom Government ordered the Governor of Aruba not to sign the country’s budget. The reasoning behind this order was in response to an opinion of the Kingdom Government that the debt had grown explosively and that this budget aggravated the problem. Subsequently, the Prime Minis- ter of Aruba believed that the dispute settlement procedure between the Kingdom, ‘central’ (predominantly Dutch) government, and ‘local’ government was useless.3 He felt that the Dutch government would be overrepresented in this procedure, and he was afraid that the Dutch government would maintain its stance.4 The Dutch government urged for reasonableness.5

1 . Proverbs 18:19 (ESV). 2. The Kingdom of the Netherlands is not just a country in North-West Europe headed by a King; part of the Kingdom is situated in the Caribbean. In fact, it extends to three more Caribbean islands, Bonaire, St. Eustatius and Saba; these three islands are constitutionally part of the Netherlands (in North-West Europe). STATUUT NED [CHARTER] art. 1. 3 . Premier Eman from Aruba Hunger Strike, DE TELEGRAAF, (July 11, 2014), http://www.telegraaf.nl/binnenland/22846081/__Premier_Aruba_in_hongerstaking__. html.

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Although the ‘Aruban matter’ has now been resolved, this case demonstrates the seriousness of the debates on the interpretation of the Charter,6 especially with regard to the division of competencies and power between the Kingdom government and the governments of the respective countries.7 These conflicts have, of course, a history and the underlying emotions go deep. Today, the deadlock in the Kingdom’s relationships is marked by the absence of an independent dispute settlement procedure, notwithstanding the agreement between the four countries to establish such procedure on the Kingdom’s level.8 For a long time, the Netherlands

4. Although not the Council of Ministers of the Kingdom, which consists of the Dutch Council of Ministers plus one minister plenipotentiary of each Caribbean country, but a delegation of the Council of Ministers of the Kingdom would decide. For completeness, the dispute settlement procedure is laid down in Art. 12 of the Charter; the key ‘passages’ of the Article for this purpose read: If the Minister Plenipotentiary of either the Netherlands Antilles or Aruba has serious objections to the initial opinion of the Coun- cil of Ministers on the binding nature of the provision referred to in paragraph 1, or on any other matter in the consideration of which he has participated, deliberations thereon shall continue at his request, if necessary having regard to a time-limit to be determined by the Council of Ministers. The deliberations referred to above shall be conducted by the Prime Minister, two Ministers, the Minister Plenipotentiary and a Minister or special representative to be designated by the Government concerned. If both Ministers Plenipotentiary desire to participate in the continued deliberations, these deliberations shall be conducted by the Prime Minister, two Ministers and the two Ministers Plenipotentiary. Article 10, paragraph 2 shall apply mutatis mutandis. STATUUT NED [CHARTER] art. 12, paras. 2-4. 5 . Plasterk Calling Hunger Strike of Eman Undesirable, NEDERLANDSDAGBLAD (July 14, 2014), http://www.nd.nl/artikelen/2014/juli/14/plasterk-noemt-hongerstaking-eman- onwenselijk. 6 . The Charter is the highest constitutional document of the Kingdom of the Netherlands. STATUUT NED [Charter] pmbl. For completeness, this example of the hunger strike is only one out of numerous cases of serious conflict. Some other recent cases are: Aru- ba’s (initially forced) participation in the Common Court of Justice of Aruba, Curaçao and St. Maarten and Bonaire, St. Eustatius and Saba.; see, higher (financial) supervision over Curaçao (although this particular conflict is based on a Kingdom Act, Finan- cial Supervision Act Curaçao and Sint Maarten, Kingdom Act of July 7, 2010 rather than on the Charter and the integrity test on St. Maarten, Integrity test/screening of government of St. Maarten, DAILY HERALD (Oct. 20, 2014), http://www.dutchcaribbeanlegalportal.com/news/latest-news/4357-second-chamber- backs-st-maarten-instruction. 7 . The relevant articles are – at least – 3 and 43, STATUUT NED [CHARTER] art. 3, sub. 1, 43.

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Law and Emotions Vol. IV, No. I defended the stance that they should be able to ultimately overrule the Caribbean countries; the Netherlands feels that given that it is the largest partner (ca. 17,000,000 inhabitants), its policies must not be overridden by the interest of a Caribbean country which represents either ca. 35,000 people (St. Maarten), ca. 100,000 (Aruba), or ca. 140,000 (Curacao).9 The Caribbean countries argue their right to self-determination, which means they cannot be overruled in the event that the law is applied incorrectly at the expense of their autonomy.10 Of course, we do not argue that the Netherlands insists on being able to breach the law when it wants to enforce its policy. How- ever, even if all parties would agree that only disputes about the interpretation of the law could be litigated, one must note that the line between law and policy is thin. Is interference with national budgets based on constitutional norms a matter of law or policy? Conse- quently one might wonder if litigation would be the answer to resolve this highly emotional issue and whether it could solve the underlying conflict. In this paper, we propose a different approach to resolve this problem inspired by the South African Constitution, which focuses on cooperation.11 Section 41, subsection 3 and 4 of the South African Constitution reads: (3) An organ of state involved in an intergovernmental dispute must make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all other remedies before it ap- proaches a court to resolve the dispute;

8. STATUUT NED [Charter] art. 12A. In May the inter-parliamentarian meeting reopened the discussion, by giving their respective governments a clear task to establish a dispute settlement procedure. However, despite this effort, in June the Governments still did not reach an agreement on the matter. Kingdom Conference Fails to Agree on Dis- pute Regulation, DUTCH CARIBBEAN LEGAL PORTAL (June 17, 2015, 8:58 AM), http://www.dutchcaribbeanlegalportal.com/news/latest-news/5408-kingdom- conference-fails-to-agree-on-dispute-regulation. Today, the discussion still prolongs. 9 . CORNELIS BORMAN, HET STATUUT VOOR HET KONINKRIJK 22 (Kluwer 2005). 10 . Irene Broekhuijse, The constitutional equality of the countries of the Kingdom of the Netherlands: reality or perception?, 271-73 (thesis, Utrecht University 2012). http://dspace.library.uu.nl/bitstream/handle/1874/254907/broekhuijse.pdf? 11 . S. AFR. CONST. 1996 § 41. 13. Id.

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(4) If a court is not satisfied that the requirements of subsection (3) have been met, it may refer a dispute back to the organs of state involved.12 Likewise, rather than focusing on litigation, we focus on cooperation. We believe that the law, specifically the dispute settlement procedure, must be framed in such a way that cooperation is promoted.13 Presently, the overarching legal framework seems to be designed in a way that the different interests of the respective countries are acknowledged, underpinned, and highlighted. Given the present legal framework, which allowed this conflict to arise, and the legacy of colonialism, it can be challenging to establish a new paradigm. With reference to the communication theory “the Rose of Leary,”14 we will illustrate why we believe such a paradigm shift may be necessary despite these difficulties. In order to develop our argument, we successively provide an insight into the colonial history of the “Dutch West Indies,” discuss how the present legal framework stimulates disassociation, and briefly mention the main idea of the Rose of Leary and how this model can be used to marginalize the emotional, but particularly conflictual situation. We conclude with a brief summary reinforcing our argument.

A Historical Background Let us begin by providing some insight into the history of the Kingdom of the Netherlands. After all, if we are to understand the difficulties of today, we have to understand its causes. As it goes too far to give an extensive overview of a history of more than three centuries, which is how long the connection between the Netherlands and the Caribbean parts of the Kingdom exists, let us highlight one

12 . Id. 13 . Although of course we acknowledge that – like in the South-African Constitution – a provision must be made to allow for litigation as an ultimum remedium. Id. 14 . TIMOTHY LEARY, MULTILEVEL MEASUREMENT OF INTERPERSONAL BEHAVIOR: A MANUAL FOR THE USE OF THE INTERPERSONAL SYSTEM OF PERSONALITY 1 (1956). For a brief and an accessible explanation of this theory, please view: Sjoerd Wapperom, Modeling Interpersonal Stance in Affective Conversations in Police Interrogations, U. OF TWENTE, ¶ 2.2., http://hmi.ewi.utwente.nl/verslagen/capita-selecta/RT-Wapperom- Sjoerd.pdf (last visited June 15, 2015).

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Law and Emotions Vol. IV, No. I particular and recurring cause that created emotionally deep wounds within the Kingdom relationships: colonialism and unfruitful decisions regarding the colonial and later post-colonial administration.15 Two particular related and recurring causes that have created emotionally deep relationship wounds within the Kingdom are colonialism and unfruitful decisions regarding the colonial and post-colonial administration. The problem is thus twofold. On the one hand there is this tension between the metropolis and the (former) colonies, and on the other hand, there is great tension between the respective islands.16 Be- low we limit our discussion of the former observation, as we believe that the tension between the metropolis and the (former) colonies speaks for itself. We will provide further explanation on the latter observation below. In sum, these islands have been united seemingly against their will and without essential common interests.17 Moreover, even after the decolonization in 1954, the smaller islands still felt dominated, although this time by Curacao, the largest and historically main island.18 The prevailing view was that Curacao took better care of itself as an independent unit than the Netherlands Antilles as a whole; consequently the islands developed not only a hostile attitude towards their former colonizer, the Netherlands, but also towards each other.19 Disregarding the autonomy granted by the Netherlands, the autonomy was thus not necessarily experienced. It was not until Octo- ber 10, 2010 that the five islands20 ceased to be united as a country.21

15 . BORMAN, supra note 9, at 1. 16 . A.B. VAN RIJN, STAATSRECHT VAN DE NEDERLANDSE ANTILLEN, DEVENTER: W.E.J. TJEENK WILLINK 33 (1999). 17 . H.W.C. BORDEWIJK, ONTSTAAN EN ONTWIKKELING VAN HET STAATSRECHT VAN CURAÇAO, 84, 92 (Den Haag: Martinus Nijhoff 1911). 18 . VAN RIJN, supra note 16, at 33. 19 . GERT OOSTINDIE & INGE KLINKERS, GEDEELD KONINKRIJK, DE ONTMANTELING VAN DE NEDERLANDSE ANTILLEN EN DE VERNIEUWING VAN DE TRANS-ATLANTISCHE RELATIES 21-36 (Amsterdam University Press 2012). 20 . OOSTINDIE & KLINKERS, supra note 19, at 7; CHARLOTTE M.A.M. DUIJF & ALFRED H.A. SOONS, THE RIGHT TO SELF-DETERMINATION AND THE DISSOLUTION OF THE NETHERLANDS ANTILLES 1 (Wolf Legal 2011), Aruba left the constitutional framework of the Netherlands Antilles already on the 1st of January 1986 and acquired the status of country within the Kingdom of the Netherlands. 21 . Id.

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On this date, the country ‘Netherlands Antilles’ was finally dissolved.22 Curacao and St. Maarten became countries within the King- dom of the Netherlands; constitutionally Bonaire, St. Eustatius and Saba, the smallest islands became part of the Netherlands.23 Alt- hough the dissolution of the country happened peacefully, it left a big emotional impact on the islands, which would prove to have far- reaching consequences. Autonomy was considered a national trophy, especially for St. Maarten and previously for Aruba. At last they are not dominated by other powers on a day-to-day level, and they have decided to defend it forcefully. The battle for autonomy also had an impact on a different level: the legal framework has proven to be able to adapt to changes as the result of a conflict.24 Against the original will of the Netherlands, the Caribbean countries managed at last to renegotiate their constitutional position, thus the conflict proved effective.25 During colonial times, there does not seem to be a clear point in which the islands cooperated effectively, nor were their common interests detected and promoted. The Netherlands Antilles therefore inherited a legacy, which hardly contained any social, economic, cultural infrastructures, or shared interests between the respective islands. In essence, six islands that had hardly anything in common, were united administratively for centuries. The only theme of the colonial history that unites the islands is the disregard of their distinct nature. In 1815, the Kingdom of the Netherlands adopted its first Constitution, which divided the islands into two colonies: St. Maar- ten, St. Eustatius and Saba, on which inhabitants spoke English and Curacao (and subordinations, i.e. Aruba and Bonaire), on which the local language was Papiamentu/Papiamento.26 This situation lasted for thirteen years. In 1828, Surinam, Cura- cao (and subordinations, i.e. Aruba and Bonaire), St. Maarten, St. Eu- statius, and Saba were administratively united.27 Although each of

22 . Id. 23 . CHARLOTTE M.A.M. DUIJF & ALFRED H.A. SOONS, THE RIGHT TO SELF-DETERMINATION AND THE DISSOLUTION OF THE NETHERLANDS ANTILLES 1 (Wolf Legal 2011). 24 . See infra Section 3. 25 . DUIJF & SOONS, supra note 23, at 15. 26 . Id. at 3. 27 . GERT OOSTINDIE & INGE KLINKERS, DECOLONISING THE CARIBBEAN: DUTCH POLICIES IN A COMPARATIVE PERSPECTIVE 58 (AMSTERDAM UNIVERSITY PRESS 2003).

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Law and Emotions Vol. IV, No. I these colonies kept their local administration, they were all responsible to “Paramaribo,” the capital of Surinam, where the head office of the colonial administration was situated.28 Fransen Van de Putte, the then Dutch Minister of colonies, admitted that they had nothing in common, except for their administration.29 Centuries later, Oostindie, a contemporary Dutch historian, commented that the structure was indeed unfruitful.30 In 1845, the administration changed again: Surinam became a separate colony from Curacao (and subordinations), St. Maarten, St. Eustatius and Saba.31 The administration of the islands was established on Curacao, the largest and main island.32 This change was not necessarily beneficial for the islands, since, the difference was not merely between the islands and Surinam. As mentioned above, the language of the local people in Curacao, Aruba, and Bonaire is Pa- piamentu/Papiamento, while in St. Maarten, St. Eustatius, and Saba the primary language is English.33 Also, the distance between the Windward Islands (St. Maarten St. Eustatius and Saba) and the Lee- ward Islands (Curacao, Aruba and Bonaire) is about 900 kilometers,34 thus escalating cultural differences. It is unthinkable that the Wind- ward Islands and Leeward Island would influence each other cultural- ly, particularly since the possibilities of communication were still limited in the mid-nineteenth century. In fact, even the islands that are relatively close to each other could have tremendous differences. For example, Curacao and Bonaire have a history of slavery until Ju- ly 1st, 1863, whereas Aruba has not;35 St. Maarten also has a history of slavery, whereas Saba was famous for piracy.36 Given the circum-

28 . BORDEWIJK, supra note 17, at 63. 29 . Broekhuijse, supra note 10, at 24. 30 . Id. at 25. 31 . VAN RIJN, supra note 16. 32 . Id. at 28. 33 . DUIJF & SOONS, supra note 23, at 3. 34 . Id. 35 . ENCYCLOPEDIA OF EMANCIPATION & ABOLITION IN THE TRANSATLANTIC WORLD 189 (Junius Rodriguez, Ed. 2007).

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2015-2016 UB Journal of International Law stances (large distance and limited means of communication), one might wonder if all local interests could be sufficiently taken into consideration; for example, one might ask whether the administration on Curacao was sufficiently aware of the state of affairs on the other islands. This question is perhaps the key question in history, for even after the colonial administration gained more influence on the colonial affairs, and ultimately after the decolonization in 1954, Curacao was always regarded as the ‘main island’ that particularly took care of its own affairs; even at (according to emotional experiences) the expense of other islands. Without incentives and good infrastructure to cooperate,37 the islands ultimately persisted in the dissolution of the Netherlands Antilles.38 One might wonder why it was considered necessary for the six islands to remain together after the decolonization in 1954, if it was clear that the islands had not much in common and were not attired with a good infrastructure and communication abilities. Was the union of the six islands merely unfruitful, or were there also good causes? Whether there was good cause falls outside the scope of the present discussion. However, one cause which was considered important was the ability to maintain a sufficient level of good governance. Because the islands are small and fragile, people are prone to favor those they know. How then, could they, for instance, establish an independent court and maintain a complete judicial system? The issue would be marginalized when representatives of the islands cooperated in such affairs as, maintaining a judicial system, deciding on the spending of public money, etc.39

36. For some more informal information on the historical background of these two islands, please view: History and Culture, SABA DUTCH CARIBBEAN, http://www.sabatourism.com/history.html (last visited Nov. 27, 2015); Slavery and Emancipation, ST. MAARTEN NAT’L HERITAGE FOUND., http://www.museumsintmaarten.org/index.php?option=com_content&view=article&id =83&Itemid=117 (last visited Dec. 17, 2015). 37 . Etienne Ys, former Prime Minister of the Netherlands Antilles, Presentation at the Na- tional Constitutional Law Conference of the Netherlands (Dec. 19, 2015). 38 . DUIJF & SOONS, supra note 23, at 14-15. Except for St. Eustatius, the only island which voted in favor of the Netherlands Antilles.

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The dissolution of the Netherlands Antilles did not, consequently, establish full autonomy for the Caribbean countries. The Nether- lands demanded that the islands prolonged their cooperation in certain affairs, such as maintaining the judicial system.40 The autonomy was still greater than the event in which they remained an island territory of the Netherlands Antilles. They also faced another novelty that potentially affected this newly gained autonomy, which could actually diminish their level of autonomy. The newly established Caribbe- an countries noticed that the Charter was now directly applicable to them, including the provision on supervision.41 Since October 10, 2010, the Netherlands has been willing to make use of their power to supervise, whether it was because of disagreement on spending public money or because of the appointment of government ministers and the alleged malfunctioning of local ‘national’ authorities.42 This resulted from the call for recolonization and the increased accusations of ill-government and thievery. The fact that all Caribbean countries ‘fight for their autonomy’ against the Netherlands, they may, at last, cooperate in order to implement a independent dispute settlement procedure. For nearly the past five years, governments have sought a solution to resolve this severe problem.43 Needless to say, that due to the economic crisis, which also hit the Netherlands and affected the islands, the solution must be affordable. Given the tremulous history,

39. The reasons to unite the islands are different from the motives to unite the islands administratively in the colonial era. During colonial times the organisation of the administration of the ‘West-Indies’ changed numerous times. The outcome of a change seems usually the result of financial considerations. In any case it did not always seem to the benefits of the colony, whilst the administrative structure appears to be most economical. 40 . Aruba continued to participate in the Court of Justice of the Netherlands Antilles when it acquired the status of country within the Kingdom. The Court was later renamed: The Common Court of Justice of the Netherlands Antilles and Aruba. Luc Verhey, Slotakkoord of nieuw begin, enkele algemene beschouwingen over het nieuwe koninkrijk, in WETTEN VOOR DE WEST, 27, 29 (Alfred Roos & Luc Verhey ed. 2010). 41 . Irene Broekhuijse & Roxan Venter, Constitutional Law from an Emotional Point of View: Considering Regional and Local Interests in National Decision-Making, XXVII WORLD CONGRESS OF THE INT’L ASS’N FOR THE PHIL. OF L. AND SOC. PHIL. (IVR) 15 (2006), https://drive.google.com/file/d/0B7v1_whu0-coRXFpTFJuYVl3LTg/view. 42 . Id. at 12. 43 . Verhey, supra note 40.

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2015-2016 UB Journal of International Law it could be difficult to reach an agreement that will satisfy all countries.

The Present Legal Framework So far, we established that the conflicts within the Kingdom of the Netherlands are of a serious nature and that these negative feel- ings are fed by historical events. Besides these, there are other causes of disassociation that need to be taken into account: the structure of legal framework; the maximization of the autonomy of the respective countries; and the structure of the Kingdom institutions.44 The structure of the institutions encourages and fosters the respective countries to plea for their own cause, rather than promoting a focus on common interests. The aforementioned legal framework will be spelled out below in the interest of completeness.45 A. Autonomy Concretely, after the decolonization of the Dutch West Indian colonies, emphasis was laid on the autonomy of the Caribbean countries of the Kingdom.46 In short, three legal orders (then: the Nether- lands, Surinam and the Netherlands Antilles, at present four: the Netherlands, Aruba, Curaçao and St. Maarten were created within the international legal subject ‘the Kingdom of the Netherlands.’47

44 . Kingdom of the Netherlands: One Kingdom – Four Countries; European and Carib- bean, MINISTRY OF FOREIGN AFF., https://www.government.nl/documents/leaflets/2015/06/05/kingdom-of-the- netherlands-one-kingdom-four-countries-european-and-caribbean. 45 . Paragraphs 3.1 and 3.2 are adapted from the paper written by Broekhuijse for the World Congress on Constitutional Law, June 16-20, 2014 in Oslo. Given it is not part of an argument but the basic explanation of the constitutional framework, it has not been rewritten for the present purposes. Also, for illustration we have additionally incorporated numerous articles of the Charter. For more information on the legal framework please see, Broekhuijse & Venter, supra note 41 (the legal framework is briefly spelled out in the joint paper of Venter and Broekhuijse, which has also been submitted for the XXVII World Congress of the International Association for the Philosophy of Law and Social Philosophy). 46 . Carribean Parts of the Kingdom, New Constitutional Order, GOV. OF THE NETHERLANDS (Dec. 15, 2008), https://www.government.nl/topics/caribbean-parts-of- the-kingdom/contents/new-constitutional-order. 47 . Id.

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The Caribbean countries of the Kingdom conduct all affairs in- dependently,48 unless the Charter indicates that the Kingdom has jurisdiction.49 As it states, the number of Kingdom affairs is limited; these can be found mainly, but not exclusively50 in the Articles 3 paragraph 1 and Article 43 paragraph 2 of the Charter, as well as in Arti- cle 5. These articles state:

Article 3 Paragraph 1

Without prejudice to provisions elsewhere in the Charter, Kingdom affairs shall include: a. Maintenance of the independence and the defence of the Kingdom; b. Foreign relations; c. Dutch nationality; d. Regulation of the orders of chivalry, the flag and the coat of arms of the Kingdom; e. Regulation of the nationality of vessels and the standards required for the safety and navigation of seagoing vessels flying the flag of the Kingdom, with the exception of sailing ships; f. Supervision of the general rules governing the admission and expulsion of Dutch nationals; g. General conditions for the admission and expulsion of aliens; h. Extradition.51 Article 43 1. Each of the Countries shall promote the realization of fundamental human rights and freedoms, legal certainty and good governance.

48 . Albeit not entirely, as mentioned above the Caribbean countries still have to cooperate with each other in certain affairs for purposes of good governance. However, in principle they are autonomous. 49 . OOSTINDIE & KLINKERS, supra note 27, at 94. 50 . See, e.g. STATUUT NED [Charter] arts. 44 & 45. 51 . Translation of this and other articles by the Ministry of Foreign Affairs, Department of Translation (Ministerie van Buitenlandse Zaken, Directie Vertalingen (AVT)). Bulletin of Acts and Decrees of the Kingdom of the Netherlands, Nov. 1, 2010, 4. See STATUUT NED [Charter] art. 3.

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2. The safeguarding of such rights and freedoms, legal certainty and good governance shall be a Kingdom affair.52

Article 5 1. The Monarchy and the succession to the Throne, the Or- gans of the Kingdom referred to in the Charter, and the exercise of royal and legislative power in Kingdom affairs shall be governed, if not provided for by the Char- ter, by the Constitution of the Kingdom. 2. The Constitution shall have regard to the provisions of the Charter. 3. Articles 15 to 20 inclusive shall apply to any proposal for amendment of the Constitution containing provisions concerning Kingdom affairs, as well as to the Bill stating the grounds for considering such a proposal.53

It may be added, that Article 5 relates to the ‘autonomy’ of the Netherlands. Article 5 provides that the Caribbean countries are to be involved in the amendment of the Constitution to the extent that the amendment relates to the organization and competences of, for example, the legislative and the administrative powers.54 This is on account of the agreement with Kingdom authorities. Also, it must be stated that Article 43 section 2 of the Charter is no more than a safeguard.55 In principle, the countries are autonomous. According to the memorandum, the Kingdom authorities are only permitted to interfere in the event that the authorities of the country cannot restore the situation by themselves.56 However, the measures taken by the Kingdom government have to be proportional.57

52 . Bulletin of Acts and Decrees of the Kingdom of the Netherlands, Nov. 1, 2010, 14-15. See STATUUT NED [Charter] art. 43. 53 . Bulletin of Acts and Decrees of the Kingdom of the Netherlands, Nov. 1, 2010, 4-5. See STATUUT NED [Charter] art. 5. 54 . STATUUT NED [Charter] art. 5. 55 . STATUUT NED [Charter] art. 43, sec. 2 (emphasis added). 56 . Id.; Irene Broekhuijse, The Challenges of the Constitutional Structure of the Kingdom of the Netherlands: A ‘Quasi-Federal’ State in Post-Colonial Context, 7 (2014), https://www.jus.uio.no/english/research/news-and- events/events/conferences/2014/wccl-cmdc/wccl/papers/ws2/w2-broekhuijse.pdf. 57 . STATUUT NED [Charter] art. 51; The Challenges of the Constitutional Structure, supra note 57.

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Furthermore, in Article 39, the Charter stipulates the principle of legal concordance with regard to several areas. Article 39 states:

Article 39 Civil and commercial law, the law of civil procedure, criminal law, the law of criminal procedure, copyright, industrial property, the office of notary, and provisions concerning weights and measures shall be regulated as far as possible in a similar manner in the Netherlands, Aruba, Curacao and St Maarten (section 1). Any proposal for drastic amendment of the existing legislation in regard to these matters shall not be submitted to or considered by a representative assembly until the Governments in the other Countries have had the opportunity to express their views on the matter (section 2).58 Arguably, neither country is entirely autonomous in these affairs.

B. Autonomy Guaranteed when Cooperating Under Article 38 of the Charter, the countries can cooperate in autonomous affairs, should they desire to do so.59 It is even possible that the respective governments will negotiate on agreements that will later become legislative proposals. During the entire legislative procedure, in the event the proposal has been amended by parliament in a way that is deemed unacceptable, the respective governments can declare on behalf of their country that the consensus ceases to exist.60 C. Influence in Kingdom Affairs A large degree of autonomy was awarded to the Caribbean countries of the Kingdom as well, insofar as matters dealt with by the Kingdom. However, the decisive power in Kingdom affairs remains ultimately in the hands of the Netherlands, making the Caribbean countries’ power marginal.61

58 . STATUUT NED [Charter] art. 39. 59 . STATUUT NED [Charter] art. 38. 60 . Cf. Van Dijk, Consensuswetgeving: Een Bijzonder Concept, 25 REGELMAAT 6, 321- 335 (2010). 61 . BORMAN, supra note 9, at 26.

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Due to the scarcity of manpower in Kingdom affairs available to Surinam and the Netherlands Antilles, one sought to participate in Dutch institutions, such as: the Council of Ministers,62 the Council of State,63 the Court of Cassation,64 and the States General (i.e. Parlia- ment). In sum, the key authorities of the Caribbean countries with regard to their say in Kingdom affairs include: Articles 10, 12, 15, 16, 17, 18, and 23.65 Despite the connection with the Dutch institutions, these King- dom institutions are constitutionally distinct. Remarkably, the one exception is that there is no Kingdom parliament; nor can Dutch Car- ibbean people vote for the Dutch parliament.66 As Steven Hillebrink, a Dutch scholar, argues: “[t]here is no Kingdom parliament, although it could be argued that the Dutch parliament, the Staten-Generaal, functions as such, because it approves Kingdom acts and international treaties, and applies to the Netherlands Antilles and Aruba.”67 The Caribbean representation in these institutions is minimal, and apart from the Council of Ministers of the Kingdom of the Neth- erlands, optional.68 By way of compensation for this minimal representation a number of provisions were included in order to counteract possible unilateral dominance by the Netherlands.69 Examples of such provisions, other than the aforementioned Articles 12 (the ‘conflict procedure’) and 18 of the Charter, include Articles 12a70 and 38a,71 as of the last 2010 Amendment. Apart from those sections, the spirit of

62 . Id. at 93. 63 . Art. 17 Council of State Act (addressing the task to advise the Government). Art. 18 Council of State Act (addressing the task to advise the Parliament). 64 . In private law, criminal law and in tax law. 65 . STATUUT NED [Charter] art. 10, 12, 15-18, 23. 66 . Steven Hillebrink, Political Decolonization and Self-Determination; The Case of the Netherlands Antilles and Aruba 176 (Dissertation Leiden University 2007), https://openaccess.leidenuniv.nl/bitstream/handle/1887/11003/000-proefschrift- hillebrink-10-01-2007.pdf?sequence=1. 67 . Id. at 147 (remarked in BORMAN, supra note 9, at ¶ 5.9) (emphasis added). 68 . Hillebrink, supra note 66, at 147. 69 . Broekhuijse, supra note 10, at 24. 70 . Id. at 9. Article 12a: Provisions shall be made by Kingdom Act for settling disputes between the Kingdom and the Countries which are designated by Kingdom Act. It is this procedure that we are presently still awaiting. 71 . Id. Article 38a: The Countries may enter into mutual arrangements for settling disputes between them. Article 38, paragraph 2 applies. See STATUUT NED [Charter] art. 38, sub. a.

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Law and Emotions Vol. IV, No. I the Charter, constitutional equality, would occupy a central position in Kingdom relationships. However, rather than being the conflict procedure for resolving the issue, it is far more often a source of irri- tation: the countries essentially plea for their own cause and this makes it a competition with ‘winners’ and ‘losers’.

The Rose of Leary So far we have mainly focused on the problems and some of there causes within the Kingdom. In this paragraph we work towards a proposed solution: from conflict to cooperation. Although in the introduction of this paper we acknowledge our inspiration from the South-African Constitution, which focuses on cooperation, we take it one step further and pay attention to the communicative theory ‘the Rose of Leary’ (for matrix view, see appendix II). We argue that this theory is useful for the present purpose despite the fact that it has been written based on the behavior and personalities of human beings and not on that of states. In our view, it can be used to explain the actions and reactions between states, and in general behavior. Both people and states/governments (groups of people) can be, for instance, dominant, rebellious, distrustful, or cooperative. In addition to the South-African Constitution, this model could assist to establish more specifically which kind of behaviour parties should show in order to create the most beneficial outcome: whether one should take the lead and others should follow, and if so to what degree. The law could then be framed to promote this behaviour.

A. The Theory in a Nutshell In the 1950s, a scientist named Timothy Leary co-developed a theory on personalities and behaviour.72 His most famous work in this regard perhaps, is The Interpersonal Diagnosis of Personality, published in 1957.73 The original work is highly technical and mathemat- ical,74 but other authors have simplified it over time.75

72 . TIMOTHY LEARY, INTERPERSONAL DIAGNOSES OF PERSONALITY: A FUNCTIONAL THEORY AND METHODOLOGY FOR PERSONALITY EVALUATION 15-16 (1957). 73 . Id. 74 . LEARY, supra note 14. 75 . LEARY, supra note 72. For the sake of completeness, the simplified model is the one we studied.

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The model that Leary presents is a circular matrix, which contains two main axes.76 The vertical axis relates to dominance (the top part of the axis) and submission (the bottom part of the axis); the hor- izontal axis relates to hostility (the left part of the axis) and the ‘love’/cooperation (the right part of the axis).77 Within this diagram, one finds different ways of interaction, of which eight are, according to Arthur L. Kobler, distinguished as “generic ways of interaction for the use as the overall variable system.”78 These are, in counterclock- wise order: (1) Managerial-Autocratic, (2) Competitive-Narcissistic, (3) Aggressive-Sadistic, (4) Rebellious-Distrustful, (5) Self-Effacing-Masochistic, (6) Docile-Dependent, (7) Cooperative-Overconventional, and (8) Responsible-Hypernormal.79 To make it simpler, as described by Sjoerd Wapperom as: “(1) leading, (2) helping, (3) cooperative, (4) dependent, (5) withdrawn, (6) defiant, (7) aggressive, and (8) competitive.”80 In sum, these types of behavior are not ‘merely’ classified in the matrix, but the model can also be used as a prediction for reactions. For instance, as Wapperom explains, dominant behavior invites sub- missive behavior and vice versa, and aggressive behavior invites aggressive behavior, just as cooperative behavior, invites cooperative behavior.81 Kingdom partners could use this knowledge, not only to be become aware of the issue, but also to influence others positively, to see if the deadlock could be overcome.

76 . Id. at 2. 77 . Id. 78 . Arthur L. Kobler, Book Review, 29 HUM. BIOLOGY 378, 379-80 (1957). 79 . Id. 80 . Sjoerd Wapperom, Modeling Interpersonal Stance in Affective Conversations in Police Interrogations, U. OF TWENTE, ¶ 2.2., http://hmi.ewi.utwente.nl/verslagen/capita- selecta/RT-Wapperom-Sjoerd.pdf (last visited June 15, 2015). 81 . Id.

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Conclusion In this present paper, we provided basic insight into the historical background and current legal structure of the Kingdom of the Nether- lands in order to illustrate how these causes contribute to and foster present conflictual situations. Historically, the islands were administratively united for centuries: first in colonial times, and then after the decolonization in 1954—notwithstanding the fact that they had hardly anything, if anything at all, in common.82 Although in spite of this required unnatural collaboration, there were also reasons to keep the islands united after the decolonization. It was held that, given their small scale, it would be in the interest of the quality of the government and judicial system in which the islands continued to cooperate. This forced collaboration resulted in a situation in which the islands did not wish to cooperate with each other at all and, finally in 2010, it led to the dissolution of the Netherlands Antilles.83 Although the islands that became countries gained a high level of autonomy in respect to each other, the dissolution of the Netherlands Antilles potentially diminished their autonomy at the core. Whereas, in the event that the Netherlands, being the largest and ultimately responsible partner within the Kingdom, interferes, the Netherlands Antilles could function as a shock-absorber for the islands Aruba, Curacao and St. Maarten that are now directly exposed to the influence of the Netherlands.84 In the introduction of this paper, we established that the Nether- lands has not been shy to use this power. Consequently, new issues arose because the Caribbean countries, who fiercely defend their autonomy, accuse the Netherlands of “recolonization.”85 The Nether- lands, on their turn, defend and justify the interference, claiming that their actions are constitutional and, moreover, necessary to maintain the public order. It seems that in 2010, when the Charter was revised in order to realize the dissolution of the Netherlands Antilles, all par-

82 . Broekhuijse, supra note 10, at 45. 83 . Id. at 19. 84 . Id. View for instance the case of St. Maarten and the issue of good governance. In the early/mid nineteen-nineties, the supervision went via the Governor of the Netherlands Antilles; he could instruct the local authorities. Today, the Governor of St. Maarten is instructed directly by the Kingdom government. 85 . Premier Eman, supra note 3.

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2015-2016 UB Journal of International Law ties anticipated a conflict. In a new Article 12a, it was arranged that they would find a way to establish a suitable dispute settlement procedure.86 For a long time, we kept searching for a solution within the existing paradigm, the existing legal framework. However, this paradigm fosters conflictual situations, so it is doubtful if a “solution” within this paradigm would ever resolve the matter. After all, as established, the present legal framework focuses particularly on the maximization of the autonomy and political disassociation in the Kingdom institutions. Indeed, there are (predominantly private) initiatives that focus on cooperation, but we need the law in order to cure this situation of non-collaborative behaviour, because some core issues, such as good governance are at stake. It becomes clear that today, the historical background, combined with the present legal framework, pushed the Kingdom relationships in the left “hostile” part of the circle of “the Rose of Leary,” which we discussed.87 We argue that if we are to marginalize the conflicts within the Kingdom relationships, we should not focus on the resolution of the legal conflicts, e.g., through litigation; instead, we need to position ourselves in the right “cooperative” part of the circular matrix.88 It is this side of the matrix that serves the better purposes for the Kingdom relationships. Conse- quently, when the governments design the required and promised dispute settlement procedure, they need to take into account that its nature would be collaborative rather than competitive, such as litigation or constitutional review. Of course, it is understandable that given the legacy this might be difficult. However, as long as the governments of the countries within the Kingdom of the Netherlands do not change in attitude, it is possible that the real, underlying conflicts can be resolved.

86 . This article states: Provisions shall be made by Kingdom Act for settling disputes between the Kingdom and the Countries which are designated by Kingdom Act. It is this procedure that we are presently still awaiting. Broekhuijse, supra note 11, at 69. 87 . Wapperom, supra note 80, at 2. 88 . Id. It falls outside the scope of this paper to establish in which concrete corner(s).

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APPENDIX I: A Selection of Articles from the Charter Article 10

1. The Minister Plenipotentiary shall participate in the deliberations of the Council of Ministers and of the permanent boards and special committees of the Council whenever Kingdom affairs are discussed which affect the Country in question. 2. The Governments of Aruba, Curacao and St Maarten shall be entitled to appoint – if they see reason to do so in relation to a particular matter – a Minister, in addition to the Minister Plenipotentiary, to participate with an advisory vote in the deliberations referred to in the preceding paragraph. Article 12 1. If the Minister Plenipotentiary of Aruba, Curacao or St Maarten, indicating his reasons for expecting that a proposed instrument containing generally binding rules would be seriously detrimental to his Country, has declared that his Country could not be bound by such an instrument, the instrument may not be adopted in such a way as to apply to the Country concerned, unless such a course would be inconsistent with the Country’s ties with the Kingdom. 2. If the Minister Plenipotentiary of Aruba, Curacao or St Maarten has serious objections to the initial opinion of the Council of Ministers on the binding nature of the provision referred to in paragraph 1, or on any other matter in the consideration of which he has participated, deliberations thereon shall continue at his request, if necessary having regard to a time-limit to be determined by the Council of Ministers. 3. The deliberations referred to above shall be conducted by the Prime Minister, two Ministers, the Minister Plenipo- tentiary and a Minister or special representative to be designated by the Government concerned. 4. If several Ministers Plenipotentiary desire to participate in the continued deliberations, these deliberations shall be conducted by these Ministers Plenipotentiary, the same 75 2 LAW AND EMOTIONS.DOCX (DO NOT DELETE) 3/21/16 6:37 PM

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number of Ministers and the Prime Minister. Article 10, paragraph 2 shall apply mutatis mutandis. 5. The Council of Ministers shall take a decision in accordance with the result of the continued deliberations. If the opportunity for continued deliberations has not been uti- lised within the time-limit specified, the Council of Min- isters shall decide.

Article 15 1. The King shall forward Bills for Kingdom Acts, at the same time as they are introduced in the States General, to the representative assemblies of Aruba, Curacao and St Maarten. 2. If a Bill for a Kingdom Act was initiated by the States General, the Bill shall be forwarded by the House of Rep- resentatives immediately following its introduction in the House of Representatives. 3. The Minister Plenipotentiary of Aruba, Curacao or St Maarten shall have the power to propose that the House of Representatives initiate a Kingdom Bill.

Article 16 The representative assembly of the Country in which the legislation is to apply shall be empowered, before the Bill is publicly debated in the House of Representatives, to examine the Bill and to issue a written report thereon, if necessary within a fixed time-limit.

Article 17 1. The Minister Plenipotentiary of the Country in which the legislation is to apply shall be afforded the opportunity to attend the debates on the Bill in the States General and to furnish such information to the Senate and House of Rep- resentatives as he considers desirable. 2. The representative assembly of the Country in which the legislation is to apply may decide to designate, for the purposes of the debate on a particular Bill in the States General, one or more special delegates who shall like-

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wise be empowered to attend the debates and furnish information. 3. The Ministers Plenipotentiary and the special delegates shall be immune from any legal proceedings in respect of anything they say in or submit in writing to the meetings of the Senate or House of Representatives. 4. The Ministers Plenipotentiary and the special delegates shall be empowered to propose amendments to a Bill during the proceedings in the House of Representatives.

Article 18 1. Before a final vote is taken on any Kingdom Bill in the Senate and House of Representatives, the Minister Pleni- potentiary of the Country in which the legislation is to apply shall have the opportunity to express his opinion on the Bill. If the Minister Plenipotentiary states his opposition to the proposal, he may request the House at the same time to postpone the vote till the following meeting. If, after the Minister Plenipotentiary has stated his opposition to the Bill, the House of Representatives adopts it with a majority of less than three-fifths of the number of votes cast, the proceedings shall be suspended and the Council of Ministers shall consider the Bill further. 2. If the meetings of the Senate or House of Representatives are being attended by special delegates, the power referred to in paragraph 1 shall devolve upon the delegate designated for the purpose by the representative assembly.

Article 23 1. The jurisdiction of the Supreme Court of the Netherlands in respect of legal cases in Aruba, Curacao and St Maar- ten, and also in Bonaire, Sint Eustatius and Saba, shall be regulated by Kingdom Act. 2. If the Government of Aruba, Curacao or St Maarten so requests, the said Kingdom Act shall provide for the addition of a member, an extraordinary member or an advisory member to the Court. 3. 77 2 LAW AND EMOTIONS.DOCX (DO NOT DELETE) 3/21/16 6:37 PM

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APPENDIX II: The Rose of Leary

The model which has been attributed to Leary89

89 . LEARY, supra note 72, at 2.

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The model used by Wapperom90

90 . Wapperom, supra note 80, at 2.

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Potential Impacts on Individuals Vol. IV, No. I

Potential Impacts on Individuals Caused by the Invasion of NGOs into International Politics

Zhao Li, Haibin Qi

ABSTRACT: In the contemporary world, NGOs are playing significant roles in international cooperation and globalization. This actively promotes the formation of a global society. Accompanying that, NGOs also have an increased international political influence. Against this background, some scholars believe the rise of NGOs will create an era of individuals’ emancipation from the sovereign states, while others consider that the golden age of autonomy has passed. This paper studies the essence of the association dominated by NGOs and how this association affects individuals in international politics. This paper suggests that the ideal subject for NGOs is one with clearly defined and precise goals and is isolated or compatible with other subjects lest drawing governments’ hostility. The idealized NGOs predominating over all fields may create enterprise association and also help to contribute to a closed international society. The voice of individuals will be silenced in enterprise association and closed society. Therefore, NGOs should function objectively as subsidiary subjects of civil association. If NGOs intrude into the international political field, they will harm individuals.

AUTHORS: Zhao Li is a doctoral candidate at Huazhong University of Science and Technology. Li received a Master of Law at Zhongnan University of Economics and Law in 2012. Li received a Bachelor's of Art in Law School at Jianghan University in 2008. Dur- ing the period of 2009-2012, Li served as People's Assessor in Court of Hongshan district in Wuhan.

Haibin Qi is a Professor of Legal Theory, Sociology of Law, and Comparative Law at the Huazhong University Law School in China. He received his J.D. from Peking University Law School in Beijing, China in 1982 and his LL.M in 1985. He also received his LL.M from Yale Law School in 1991 and his J.S.D. in 1998. He was a visit- ing scholar and professor at Boston University Law School in 1989 and 1990.

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TABLE OF CONTENTS The Rise of International Organizations in the Contemporary World ...... 83 International Politics Before the Twentieth Century...... 86 A Comparative Analysis to State, IGO and NGO by Type...... 92 A Comparative Analysis of Distribution of NGOs, IGOs and States by Subjects...... 96 A. Where Our Analysis will Begin...... 96 B. Distribution of International Organization by Subjects...... 98 C. The First Explanation—State Interests...... 101 D. Amendment to the First Explanation—Complexity and Abstractness...... 105 E. The Second Explanation—Clarity of Goals...... 108 The Character of Association Brought about by NGOs ...... 111 A. From Cooperation to Association...... 111 B. Premises...... 113 C. Enterprise Association...... 114 D. Closed International Society...... 117 E. Additional Remarks...... 122 Conclusion: The Correct Position of NGOs in International Politics...... 125

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The Rise of International Organizations in the Contemporary World International organizations have proliferated rapidly during the last century. According to the database, Yearbook of International Organizations, in 1909 there were only thirty-seven intergovernmental organizations (IGOs) and 176 nongovernmental organizations (NGOs).1 These numbers grew to 4,565 for IGOs and 23,635 for NGOs by 1991.2 By the year 2013, there were already 7,756 IGOs and 59,383 NGOs globally.3 Approximately 1,200 new organizations are added each year.4 Robert Jordan, who was a distinguished professor of strategy and policy at the U.S. Naval War College and once served as director of research for the U.N. Institute for Training and Research, concluded that “concomitant with their growth, IGOs and INGOs have become increasingly significant actors in world politics”.5 Though it is too far to claim that the state is no longer the primary component in contemporary international politics, we cannot ignore the “alternative and possibly competitive foci of power and influence”6 caused by international organizations. Hiner Hanggi, Ralf Roloff, and Jurgen Ruland distinguished the five levels of international policy-making: global, inter/trans-regional, macro-regional, trans-border institutions at a sub-regional level, and bilateral state to state.7 International organizations have played critical roles in the first four levels.8 It is safe for us to conclude that the international political system now consists of three levels of subjects: nation-states through making bilateral treaties,9 IGOs, and NGOs.10

1 . THE UNION OF INT’L ASS’N, YEARBOOK OF INT’L ORG. 2013-2014, Vol. 4, fig. 2.9 (2015). 2 . Id. 3 . Id. 4 . Id. 5 . ROBERT JORDAN ET AL., INTERNATIONAL ORGANIZATIONS: A COMPARATIVE APPROACH TO THE MANAGEMENT OF COOPERATION 20 (4th ed. 2001). 6 . Id. at 39. 7 . HINER HÄGGI ET AL., INTERREGIONALISM AND INTERNATIONAL RELATIONS (Jürgen Rüland ed., Routledge 2006). 8 . Id.

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Though having much in common, IGOs and NGOs present diverse trends of development. From 1981 to 1991, the number of IGOs had increased over threefold, while NGOs increased nearly 80%. Despite the tremendous growth of both, IGOs still had a much higher growth rate in the1980s.11 The 1990s saw a slowdown of IGOs, the growth rate of which fell to only 48%.12 While in the year 2001, the number of NGOs amounted to nearly double compared to that of 1991, meaning the growth rate of NGOs keeps increasing and surpassing that of IGOs.13 Though the growth in the international organization has leveled off from 2001 to 2014, the rate of NGOs (26%) is still higher than IGOs (15%).14 Comparing the bilateral and multilateral treaties that played the most significant role in international politics after the Second World War, IGOs and NGOs were most active in the 1980s. More specifically, the period after the Cold War witnessed the prosperity of NGOs. We can easily revise Mac- dougal’s assertion back in 1966 that the Nineteenth Century is characterized as the era of the nation-state and the Twentieth Century is considered the era of the intergovernmental organization, while posterity may characterize our period as one of NGOs.15 According to this trend, there are increasingly more people who believe that, with the assistance of NGOs, “the individual appears to occupy the central stage of international law.”16 “Never before, in the history of human kind, have people possessed so many rights and freedoms opposable to sovereign states.”17 Therefore, one could conclude that the contemporary world is experiencing “the renascent of the individual.”18

9. The number of multilateral treaties, though, was only 10 percent of that of bilateral treaties, following the increasing trend. However, it’s always hard to distinguish the simple multilateral treaties and international organizations. THE UNION OF INT’L ASS’N, supra note 1. 10 . THE UNION OF INT’L ASS’N, supra note 1. 11 . Id. 12 . Id. 13 . Id. 14 . Id. 15 . EDUARDO SZAZI, NGOS: LEGITIMATE SUBJECTS OF INTERNATIONAL LAW 271 (Leiden Univ. Press 2012). 16 . Id. 17 . Id. 18 . M.McDougal et al., The World Constitutive Process of Authoritative Decision, in R.FALK, THE FUTURE OF INT’L LEGAL ORDER 94 (PUP Princeton 1969).

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Compared to sovereign states, NGOs have brought about a different kind of association that leads to the arising of new ways of governance in international politics—governance without a state, which marks the fading of modern statehood.19 Considering that “the tension between states’ rights and individual rights has become particularly difficult to solve in recent times,”20 the decline of modern statehood may lead the emancipation of individuals.21 In other words, the golden age of democracy may be coming to an end. There are still some people that have an opposite position. For example, Richard Tuck, a professor at Harvard University, claims the golden age, which existed in the Seventeenth Century, has passed for good, which, though seemingly strange and ill-timed, perhaps still makes sense.22 This paper will first briefly review the themes, discussions, and theories in international politics back to the Seventeenth and Nine- teenth Century in order to present a historical prospect of international cooperation on the basic of this particular subject. Tracing this back will reveal how the areas and discussions are different between international politics based on states system in the past and NGOs in the contemporary world. The distinct areas and discussions leading to different cooperation of individuals will be explained later. Through the analysis of the field and subject of NGOs, this paper takes a process of ascending from empirical data to concepts. The as- cension here has two purposes. First, it means to convert the analysis of empirical data to that of an ideal type. Second, it will analyze, the concrete established institution of NGOs to the pattern of governance they bring up. We assert that an NGO is a special medium of governance technique, which is still latent in contemporary international politicsand is already prepared to conquer this field actively. Fi- nally, we will see how this kind of governing is perverse to a healthy civil society open to individuals. Before we dive into analysis, there are still several preliminary comments that need to be clarified. This paper seeks to unfold the

19 . THOMAS. RISSE, GOVERNANCE WITHOUT A STATE?: POLICIES AND POL. IN AREAS OF LIMITED STATEHOOD 276 (Columbia Univ. 2011). 20 . DOMINIK ZAUM, LEGITIMATING INT’L ORG. 40 (Oxford Scholarship Online Jan. 2013, 2014). 21 . Id. 22 . Id.

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2015-2016 UB Journal of International Law prospect of international politics influenced by NGOs from the perspective of political philosophy. Some concrete NGOs are not the objects of this paper. This paper has an emphasis on international NGOs and politics but it also refers to domestic NGOs and politics. However, the conclusion can be applied to them as well. If so, why does this paper deliberately focus on international NGOs? When analyzing justice of a man, Socrates, in Plato’s work The Republic, turned to discuss with his friends about justice in the city-state.23 Be- cause there would be more justice in the larger and it would be easier to observe closely.24 Socrates takes it as considering the issues of the larger as a way to address the issues of the smaller.25 Similarly, the situation of INGOs to international politics is very similar to the situation of NGOs in domestic politics. Also in the international area, states are “larger” than the “smaller” individuals; therefore, stating a comparison of the individual to the state is a better reference when discussing NGOs. Besides, there is a moderate analysis of IGOs, but IGOs are not the issue of this paper. IGOs are introduced into this study as a transitional type between the state and NGO.26 By making a comparative analysis between IGOs and NGOs, the nature of NGOs becomes clearer. When the instrumental functions of IGOs are fully examined then the discussion on it will gradually disappear from the paper. International Politics Before the Twentieth Century. Richard Tuck concluded with slight pessimism at the end of his book, The Right of War and Peace, stating that “it is important that we are clear about what autonomy meant in the days when it became the central virtue, so that we can also be clear about what we may be losing in our own time.”27 Tuck attempted to guide his readers back to the Seventeenth Century after the Peace Treaty of Westphalia was

23 . PLATO, THE REPUBLIC 147 (T. E. Page et al. eds., Paul Shorey trans., Harvard Univ. Press rev. ed. 1937) (c. 380 B.C.E.). 24 . Id. at 149. 25 . Id. at 147-49. 26 . THE UNION OF INT’L ASS’N, supra note 1. 27 . RICHARD TUCK, THE RIGHT OF WAR AND PEACE: POLITICAL THOUGHT AND THE INTERNATIONAL ORDER FROM GROTIUS TO KANT 234 (Oxford Univ. Press 1999).

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Potential Impacts on Individuals Vol. IV, No. I signed in 1648.28 In the Westphalian system, the state is regarded as an organization that has the highest level of power or is the sovereign in its territory.29 This basic principle of autonomy helps form an independent political community.30 Due to economic interference, though extremely limited, and international norms, though weak, the ideal autonomy never existed during the Westphalian period. How- ever, as the states only “accepted very few international obligations in either conventional or customary law”, the states, as Mark Zacher mentioned, “maintained a high degree of policy autonomy by not enmeshing themselves in a large number of international regimes and especially not in a regime that restricted their ability to use military force.”31 Natural right theorists conceive that sovereign states are subjects which behave like individuals. Tuck pointed out that this kind of metaphor for the international arena is a near-perfect example of the operation of the fundamental principles of the natural right theorists.32 Among them, Thomas Hobbes presented the most profound explanation. Hobbes, whose experience was colored by the British civil war in the 1640s, followed by his successors,33 proposed the concept of the state of nature, meant individuals lived close by without any kind of state sovereignty existing to explain the pre-civil world of humans.34 State of nature, though presumed to explain the relationship between individual men, acts as a metaphor to state of international relationship, and as Rousseau announced, “the Hobbesian ‘man’ was really a state all along, displaying characteristics that were usually encountered only in state, such as a constant and unforgiving striving for power.”35

28 . GOVERNANCE WITHOUT GOVERNMENT: ORDER AND CHANGE IN WORLD POLITICS 59 (James N. Rosenau & Ernst-Otto Czemprel eds., Cambridge Univ. Press 1992) [hereinafter GOVERNANCE WITHOUT GOVERNMENT]. 29 . Id. 30 . Id. 31 . Id. at 60. 32 . Tuck, supra note 27, at 9. 33 . Id. at 135. 34 . Id. at 140. 35 . Id. at 230.

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This concept, according to Charles Beitz, is assumed to be constructed by individuals without social connection.36 Similarly, international relations, to a certain extent, are an autonomous agent without any effective relationships.37 The autonomy of the state in the Seventeenth Century lacked the sense of global civil society; therefore, the sovereign state in the Seventeenth Century is the best paradigm for individuals lacking necessary social connection.38 In the state of nature, there is no public agreement about good and evil, which implies a lack of justice in law.39 The concept of states’ autonomy was not understood as taking action following desires and interests of states, but rather by policies and strategies in international affairs as they saw fit in a political environment that was similar to Israel in the period of Judges.40 Finally, because of competition, dif- fidence, and glory, there is war of everyone against everyone41 in the state of nature. Of course, this ideal concept, due to its highly abstract style, failed to meet every situation and experience, but it is still applicable to explaining the international arena. Hobbes asserts that though this typical state of nature never existed in history, stating, “yet in all times, kings and persons of sovereign authority, because of their Independency, are in continually . . . a posture of war.”42 For Hobbes, the war in state of nature is hard to bear — just think about this famous depiction in Leviathan: [T]here is no place for industry; because the fruit thereof is uncertain; and consequently no Culture of the Earth; no Navigation, nor use of the commodities that may be import-

36 . CHARLES R. BEITZ, POLITICAL THEORY AND INTERNATIONAL RELATIONS 42 (Princeton Univ. Press 1999). 37 . Id. at 8. 38 . Though it does not means that Hobbes ignores any social cooperation as Charles Beitz has claimed. Noel Malcolm has clarified, “The general picture that emerges here is of cooperation and interaction between states, and between the subjects of states, taking place at many levels . Hobbes’s account contains many of the ingredients of what modern theorists describe as an international society . .” NOEL MALCOLM, ASPECT OF HOBBES 452 (Oxford Univ. Press 2002). 39 . PATRICK DEVLIN, Morals and the Criminal Law, in THE ENFORCEMENT OF MORALS, 181 (Oxford Univ. Press 1965). 40 . Nir Kedar, Democracy and Judicial Autonomy in Israel’s Early Years, 15 ISRAEL STUDIES 25-46 (2010). 41 . THOMAS HOBBES, LEVIATHAN 88 (Richard Ruck ed., 1651). 42 . Id. at 90.

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ed by Sea; no commodious Building; no Instruments of moving, and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and which is worst of all, con- tinual fear, and danger of violent death; And the life of man, solitary, poor, nasty, brutish and short.43 Human beings would end either in self-destruction or escape to another sovereign state.44 Since neither of these happened in the Seven- teenth Century, Hobbes succeeded in setting up the presumption at the beginning, and failed at the end.45 Why does this happen? Pro- fessor Tuck quoted the opinion of Max Weber, who saw that overseas expansions was the certain unique and never repeating precondition of freedom and democracy,46 to imply the answer. Though vaguely asserted, Tuck’s answer could reasonably be speculated to imply, that the sustainability of supplies from new continents by overseas expansions make the state of nature not extremely insupportable in a system of international politics based on autonomy of state.47 In the Nineteenth Century, along with the fading of providing new continents and the resources, the western world gradually organized a balanced system ruled by limited international law.48 The system of autonomy came under threat in Europe by Napoleon’s war of conquest and broke down into unbridled anarchy in the first few years in the Eighteenth Century.49 The arena of international politics is closer to the state of nature described by Hobbes. It was far from bearable, so that a new system might be worked out to evolve.50 Un-

43 . Id. at 89. 44 . Id. at 89-90. 45 . Todd Calder, Hobbes’ Moral and Political Philosophy, THE STANFORD ENCYCLOPEDIA OF PHIL. (Feb. 25, 2014), http://www.plato.stanford.edu/entries/hobbes-moral/. 46 . TUCK, supra note 27, at 15. 47 . Id. 48 . Congress of Vienna: the Forerunner of Multilateral Diplomacy, THE EXAMINER (Aug. 7, 2010). http://www.examiner.com/article/congress-of-vienna-the-forerunner-of-multilateral- diplomacy [hereinafter Congress of Vienna]. 49 . Id. 50 . Christoph Neusiedl, The Concept of Human Nature in International Relations-A Case Study of Realism and Liberalism, ACADEMIA.EDU 2-3 (2015), http://www.academia.edu/The_concept_of_human_nature_in_International_Relations _a_case_study_of_realism_and_liberalism.

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2015-2016 UB Journal of International Law like practicing the solution proposed by Hobbes, in which individuals are persuaded to institute a sovereignty, world politics in the Nine- teenth Century were marked by the Congress of Vienna in 1814-1815 and the Hague Peace Conference in 1899, and have gradually evolved into a system constructed by laws of war, arbitration, and multilateral treaty.51 Stephen Neff, a professor at University of Edinburgh, concluded that the Nineteenth Century was “an age of great achievement in international law as in so many other walks of life.”52 The premise of the state of nature must be modified to fit because of the concern with the changes and development in international politics during that era.53 The appropriate theory was nothing new in the Nineteenth Century, as it had already been proposed by Samuel Pufendorf during the same period as Hobbes.54 Despite some acknowledged basic principles, there is profound distinction between Pufendorf and Hobbes’ explanations of the state of nature. The dividing consensus begs the question: could the state of nature be imagined as a human society? Contradictory to Hobbes, who argued the commonwealths “should still continue in a State of mutual war” by lacking any emotional and ethical connection, Pufen- dorf believed that the common sense of mankind was that “those Commonwealths, how distinct so ever” could be “allied by Friend- ship and by Leagues.”55 Pufendorf’s theory on international affairs, especially the case in Germany “to reconstruct a decent and pacific life in Germany on the basis of precisely such alliances and leagues between states,”56 could invalidate Hobbesian Theory.57 In this kind of explanation, the state of nature “is so constituted that the race cannot be preserved without social life.”58 Compared to the weak affilia- tion of friendship, common interest plays a foundational role in building up a global society.

51 . Congress of Vienna, supra note 48. 52 . STEPHEN C. NEFF, JUSTICE AMONG NATIONS: A HISTORY OF INTERNATIONAL LAW 218 (Harvard Univ. Press 2014). 53 . SAMUEL PUFENDORF, OF THE LAW OF NATURE AND NATIONS 150 (London 1729). 54 . Id. 55 . Id. 56 . TUCK, supra note 27, at 150. 57 . Id. 58 . SAMUEL PUFENDORF, ON THE DUTY OF MAN AND CITIZEN 36 (1682).

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Since 1815, many has been suggested the idea of “a global community interest.”59 In prophet-like tones, Pufendorf debated with Hobbes to defend a collective interest, “[a]lthough our moral language thus reflects our interests, it does not directly reflect our personal interests, as Hobbes had thought; instead, if used properly, it always refers to whatever will in some way advance a collective interest, or aid in the construction of patterns of social life.”60 A framework of international law, which helps to regulate and form the collective interest, could find its counterpart in the Pufendorf’s theory of natural law. This framework does not work in the state of nature in Hobbes’ explanation. Though lacking the coercive power of the state to ensure the implementation, the law can still be “investigated by the light of reason61“. Professor Tuck criticized the theory of Pufendorf stating that it “had lost the sense of autonomous agents constructing their ethical environment.”62 The same anxiety could be inspired in global politics in the Nineteenth Century that the autonomy of the state might be totally immersed by the new system.63 Comparing that situation to contemporary global politics, Professor Tuck’s criticism is only partially correct. The operation of reason in theories of international law in the Nineteenth Century was restricted by a limited target: for peace among states in theory, to prevent any hegemony on the continent, and to avoid a pan-European war.64 If peace is the main goal, reason in international politics of the Nineteenth Century is nothing less than ability for rational discourse. Diverse states are considered to be the foundation and the logical assumption of rational discourse in international politics, the system of international politics in the Nineteenth Century was also constituted by sovereign states.65 This new system, established by the peacemakers from 1814- 181566 and sharing characteristics similar to hierarchy and anarchy,

59 . GOVERNANCE WITHOUT GOVERNMENT, supra note 28, at 56. 60 . TUCK, supra note 27, at 149. 61 . PUFENDORF, supra note 58, at 37. 62 . TUCK, supra note 27, at 230. 63 . Id. 64 . GOVERNANCE WITHOUT GOVERNMENT, supra note 28, at 38. 65 . Id. at 38. 66 . Id. at 38.

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2015-2016 UB Journal of International Law developed, changed, oscillated,67 decayed, and ultimately collapsed at the breakout of World War I.68 This still leaves a lot of legacy for contemporary international law. A Comparative Analysis to State, IGO and NGO by Type. The Nineteenth Century is still viewed as the era of the nation- state, even though there was an increase in international law.69 In the Twentieth Century, the advancement of the international political system of nation-states was confined by a persistent increase in the number of international treaties. There were 6,351 bilateral treaties entered into force between 1945 and 1955.70 After two decades the number doubled again, amounting to 14,061 between 1966 and 1975.71 Despite of the decay of the Westphalian system, the state is still “the primary political unit in the composition of the contemporary international system.”72 The system of nation-states, though saturated with a great variety of formal and informal international rules, is by no means removing its nucleus of autonomy or sovereignty. Realism theoretical paradigm, which presumed that the primary motive of the warring states in international affairs was to constantly compete for territorial, material, and human resourcesalways reiterated by scholars on the insight of this nucleus.73 When international affairs get involved in intense state interests, the model of the state of nature proposed by Hobbes never fails in explaining the events.74 As James Yunker suggested, “modern history also seems to suggest that the

67 . Id. at 32. 68 . NEFF, supra note 52, at 219. 69 . To the point of Reinhard (2007), “Even in Europe, the birthplace of modern statehood, nation-state were only able to fully establish the monopoly over the use of force in Nineteenth Century.” RISSE, supra note 19, at 6 70 . GOVERNANCE WITHOUT GOVERNMENT, surpa note 28, at 66. 71 . Id. (Database comes from PETER ROHN, ROHN’S WORLD TREATY INDEX: VOLUME I (1997), and MULTILATERAL TREATIES: INDEX AND CURRENT STATUS (Bowman & Har- ris eds., London: Butterworths 1984)). 72 . GOVERNANCE WITHOUT GOVERNMENT, surpa note 28, at 100. 73 . César de Prado, Global Multi-Level Governance: European and East Asian Leader- ship, United Nations Univ. Press 219 (2007), http://archive.unu.edu/unupress/samplechapters/multilevel. Governance_dePrado_UNUPress_chapter.pdf. 74 . TUCK, supra note 27.

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Potential Impacts on Individuals Vol. IV, No. I sovereign nation-state system possess a strong propensity toward the generation of hostility, conflict and warfare among nations.75 Though states could draft bilateral treaties to regular their behav- iors, it still could not be a persuasive reason to reject Hobbes’s theory, for Hobbes himself never denied the possibilities of the cooperation of states.76 He even believed that there could be high levels of cooperation in international politics.77 Hobbes’s attitude on international trade and cooperation is the best example. “[I]nternational trade, in Hobbes’s view, was essential for the well-being of a commonwealth … He recognized that trade required a system of commercial law … The general picture that emerges here is of cooperation and interaction between states.”78 Without a coercive force to enforce the obligations, the goals of treaties could only be reached by chance.79 The goals always fail in vain by their weakness.80 In the background of globalization, this system of the states is believed to be an obstacle to permanent and stable cooperation in international society. As D. Grewal argued, “[e]verything is being globalized except politics.”81 Compared to the chaos brought about by the states, IGOs indicate the real systems that take supranational organizations as their center. These organizations have the capacity to interfere and regulate the states’ actions in some specific aspects.82 In an idealistic IGO, states have the right to participate in policy-making, and their involvement within the IGO is limited.83 The essential boundary of each state remains intact in this structure. In other words, states are integrated organically without being deprived of their nature.

75 . James A. Yunker, Beyond Global Governance: Prospects for Global Government, INT’L J. ON WORLD PEACE, Vol. XXVI No.2, June 2009. 76 . THOMAS HOBBES, ON THE CITIZENS 29 (Raymond Geuss & Quentin Skinner eds., 1998). 77 . TUCK, supra note 27. 78 . NOEL MALCOLM, ASPECT OF HOBBES 452 (Oxford Univ. Press 2002). 79 . ON THE CITIZENS, supra note 76. 80 . LEVIATHAN, supra note 41. 81 . DAVID GREWAL, NETWORK POWER: THE SOCIAL DYNAMICS OF GLOBALIZATION 50 (Yale University Press 2008). 82 . International Government Organizations (IGOs), HARV. L. SCH. (2015), http://hls.harvard.edu/dept/opia/what-is-public-interest-law/public-international- law/intergovernmental-organizations-igos/. 83 . Id.

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The Yearbook of International Organizations has distinguished fifteen different types of international organizations applying to both IGOs and NGOs: A. federations of international organizations; B. universal membership organizations; C. intercontinental membership organizations; D. regionally oriented membership organizations; E. organizations emanating from places, persons, and bodies; F. organizations of special form, G. internationally oriented national organizations; H. dissolved or apparently inactive organizations; J. recently reported bodies – not yet confirmed; K. subsidiary and internal bodies; N. national organizations; R. religious orders and secular institutes; S. autonomous conference series; T. multilateral treaties and intergovernmental agreements; and U. currently inactive nonconventional bodies.84 Unsurprisingly, in the Twentieth Century, T type IGOs, 2,172 out of 3,865,85 are the largest classification of currently active IGOs.86 This phenomenon had not changed by 2013, during which time 2,406 T type IGOs existed out87 of 5,002 IGOs.88 In all the types of IGOs, multilateral treaties and intergovernmental agreements, which can never exist as a real type of NGOs, are most closely related to bilateral treaties, which could only be regarded as the typical international cooperation among sovereign states.89 In this sense, although the multilateral treaties and intergovernmental agreements cannot be identified with the bilateral treaties, the structure of IGOs did not move too far from the system of the sovereign state.

84 . THE UNION OF INT’L ASS’N, Types of International Organization, UNION OF INTERNATIONAL ORGANIZATIONS, http://www.uia.org/archive/types-organization/toy (last visited Oct. 8, 2015). 85 . The number “3865” comes from total number of IGOs in 20th Century (5725) by de- ducing the number of type H (639) and U (1221). THE UNION OF INT’L ASS’N, supra note 1, fig. 2.9. 86 . Id. 87 . The number “5002” comes from total number of IGOs by the year 2013 (7756) by de- ducing the number of type H (801) and U (1953) Id. 88 . Id. 89 . Thomas Miles & Erica Posner, Which States Enter Into Treaties and Why?, UNIV. OF CHI. L. SCH. (2008), http://www.law.uchicago.edu/files/files/420.pdf.

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Due to the new global crisis and problems, new types of actors are nurtured to give response to them.90 Global environmental issues have “provided new opportunities for civil society actors to address problems which the geographically delimited states may be inade- quate to address.”91 As Thomas Davies concluded “the inability of states effectively to deal with transnational environment problems may have led to the development of an alternative world civic politics to deal with these issues that may bypass state institutions altogeth- er.”92 Similarly to environment, other areas are on the attack of globalization.93 As a result, there is a strong need for new kind of actors in international human society to overcome the boundaries of the states. If as generally suggested, international organizations have presented the trend of gradually growing of “the broadening power and influence of international actors extending beyond the sovereign state system,”94 then NGO is the culmination in bypassing states’ boundaries.95 According to the Yearbook, NGOs in type G (internationally oriented national organizations) account for 98.14% of all international organizations in this type, the ratio of which is at the peak among all types.96 However, two types are excluded, national organizations and religious orders and secular institutes, which account for 99.94% and 100% respectively. These two types contradict the nature and definition of IGOs, which makes the comparative study invalid and is much higher than the average.97 All international organizations in Type G have an international origination.98 If an organization can ignore the national elements in its origination, it is more independent from

90 . Michael Edwards, David Hulme, & Tina Wallace, NGOs In a Global Future: Marry- ing Local Delivery to Worldwide Leverage, GLOBAL DEV. RES. CENTER, http://www.gdrc.org/ngo/g-future.html (last visited Jan. 9, 2016). 91 . THOMAS DAVIES, NGOS: A NEW HISTORY OF TRANSNATIONAL SOCIETY 177 (2014). 92 . Id. 93 . Edwards, Hulme, & Wallace, supra note 90. 94 . ROBERT JORDAN, INTERNATIONAL ORGANIZATIONS: A COMPARATIVE APPROACH TO THE MANAGEMENT OF COOPERATION 20 (4th ed. 2001). 95 . Samuel Worthington, The Role of U.S. NGOs in Global Development and Humanitar- ian Work, INTERACTION, http://www.interaction.org/files/FABB%202013_Sec01_PolicyPaper_RoleOfNGOs.p df (last visited Jan. 9, 2016). 96 . THE UNION OF INT’L ASS’N, supra note 1. 97 . Id. 98 . Id.

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2015-2016 UB Journal of International Law states.99 Therefore, compared with IGOs, NGOs are more independent and have a greater tendency in bypassing states’ boundaries, which meets the inference from the nature of NGOs. A Comparative Analysis of Distribution of NGOs, IGOs and States by Subjects. Within its territory, a state can acquire its legitimate sovereign power. Through this power, people are organized and obliged to obey the rules legitimated by the government and keep their fidelity towards sovereignty.100 However, NGOs, especially international NGOs, are not confined by the boundaries of the states and cannot be categorized as domestic agencies.101 The association created by NGOs is thoroughly different from civil association supported by states. Due to the special structure NGO is not compatible with any kind of association. The NGO has a particular pattern of association. In fact, NGOs can be viewed as mediums of a specific association. The next problem is how can we reveal the characteristics of this association? A. Where Our Analysis will Begin. The first thing we need to understand is that the pattern of this association is very fragile and easily distorted and even covered by impacts of other kinds of association or force.102 However, there are some clues left through which the characteristics of the association can be brought to light. The most obvious clue is the areas that are easy for NGOs to thrive in or subjects they are prone to operate on mostly.103 If relatively large amounts of NGOs gather in some specific areas, the technique of governance on these subjects may best fit

99 . Id. 100 . Authority and Legitimacy, ROUTLEDGE TAYLOR & FRANCIS GROUP, http://cw.routledge.com/textbooks/alevelphilosophy/data/AS/WhyShouldIBeGoverned /Authorityandlegitimacy.pdf (last visited Jan. 9, 2016). 101 . Peter Willetts, What is a Non-Governmental Organization?, CITY UNIV., LONDON (http://www.gdrc.org/ngo/peter-willets.html (last visited Jan. 9, 2016). 102 . DOROTHEA BAUR, NGOS AS LEGITIMATE PARTNERS OF CORPORATIONS: A POLITICAL CONCEPTUALIZATION 127 (2011). 103 . Id.

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Potential Impacts on Individuals Vol. IV, No. I the nature of NGOs.104 The pattern of association is revealed through analyzing the technique of governance on these subjects. There are two elements that contribute to forming the association: the subject people deal with and how the people deal with it.105 For example, Cicero, the great politician in ancient Rome, defined a republic as “a numerous gathering brought together by legal consent and community of interest.”106 Therefore, the main subject that the people pursue in a republic is common interest. People are defined as “being not every assemblage or mob.” Saint Augustine, Bishop of Hippo, concluded that the wealth of the people “exists only when it is well and justly governed.”107 In this case, justice is the way the people must work with their subject in a republic.108 While justice and governance are independent of each other, they always correspond.109 For example, if a group of people wants to operate an enterprise, they need to work efficiently. While they strive for their common interests as a republic, they must do it justly.110 Even though how people govern has a closer relationship with the pattern of the association, the subjects they deal with are more easily discerned by empirical studies. Then it is more reasonable for us to examine the subject of NGOs. From the Seventeenth Century to the Nineteenth Century, war and peace remain the main subjects in international politics.111 As a result, despite the diverse structure between the Westphalian system and the states system regulated by international law, the participants in international politics always legalize their actions through the claims of justice.112 However, the modern issues are distributed much more widely than before. This paper first

104 . DEVELOPMENT INITIATIVES, PUBLIC SUPPORT FOR HUMANITARIAN CRISES THROUGH NGOS 18, 21 (2009). 105 . Peace Corps, The Role of NGOs in a Civil Society, http://files.peacecorps.gov/multimedia/pdf/library/M0070_mod1.pdf (last visited Jan. 9, 2016). 106 . MARCUS TULLIUS CICERO, ON THE REPUBLIC 19 (Niall Rudd trans., 1998). 107 . SAINT AUGUSTINE, THE CITY OF GOD 76 (1887). 108 . Id. 109 . Id. 110 . Id. 111 . COLIN S. GRAY, WAR, PEACE AND INT’L RELATIONS: AN INTRODUCTION TO STRATEGIC HISTORY 1 (2007). 112 . Hedley Bull, Order vs. Justice In Int’l Society, 19 POL. STUD. 269-83 (1971), http://press.anu.edu.au/sdsc/hedley/mobile_devices/ch08.html.

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2015-2016 UB Journal of International Law analyzes the distribution of NGOs by subjects and makes a comparative analysis to IGOs, in order to reveal the pattern of the association brought up by NGOs. B. Distribution of International Organization by Subjects. According to “The Number of International Organizations by Subject of Activity” of the Yearbook of International Organizations, the amount of NGOs are distributed homogeneously by the subjects of their activities.113 One may claim that it is because of the different saturation points of international activities by international organizations in diverse areas.114 The distribution of the number of IGOs is not the same with that of NGOs, where IGOs are also categorized as international organizations and implement international activities in all areas where NGOs are involved.115 The diverse state of distribution by subjects between NGOs and IGOs is probably caused by their different natures. Considering this, the analysis takes IGOs as a medium, and only uses the data of the amounts of activities of IGOs by subjects as reference to analyze that of NGOs.116 The figure below was produced based on data and categories collected by the Year- book:

113 . THE UNION OF INT’L ASS’N, NUMBER OF INT’L ORG. BY SUBJECT OF ACTIVITY, 51 YEARBOOK OF INT’L ORGS. 175, Fig. 5.3 (2014) [hereinafter YEARBOOK OF INT’L ORGS]. 114 . Id. 115 . In this paper, the terms “subject” and “area” are synonymous. However, it does not mean there is no difference between the two. The term “area” places particular emphasis on the nature of matter. It concerns objects. While the notion of “subject” has direct relationship with active actors—people. It emphasizes people in specific situations participating in the formation of a subject in a particular area. Generally speak- ing, “subject” and “area” are two different aspects of the same thing. See YEARBOOK OF INT’L ORGS, supra note 113. 116 . YEARBOOK OF INT’L ORGS, supra note 113.

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No. Subjects Above 4.5) ON TA N/I No. Subjects ON TA N/I (Below 4.5) 1 Religious Practice 36 1951 282.43 16 Management 42 1894 4.27 2 Health Care 32 4601 12.45 17 Cooperation 82 1755 2.77 3 Education 33 5675 10.90 18 Finance 27 5061 2.08 4 Employment 22 8634 7.80 19 Transporta- 25 3604 1.90 tion Tech 5 Society (Element) 21 6255 7.17 20 Law 39 3534 1.88 6 Production 28 4225 6.83 21 Defence 35 877 1.30 (Police)* 7 Culture 54 1745 6.83 22 Government 37 2597 1.12 (Politics) 8 Science 51 1582 6.72 23 Environment 49 3780 0.41 9 Research Standard 31 7208 6.61 10 Conservation 69 2236 5.82 11 Amenities (Necessities) 24 1894 5.76 12 Technology 48 1921 5.24 13 International Relations 59 1637 5.09 14 Development 60 4792 4.85 15 Information 23 2403 4.55

The original data and categories come from the Yearbook of In- ternational Organizations, the statistics were collected in 2013.117 The fifth and tenth rows show the amount of NGOs’ activities divided by that of IGOs’ according to various subjects (N/I).118 All data in this figure is arrayed from high to low according to this index.119 Fi- nally, the fourth and ninth rows are the total amounts of all international organizations’ actions. The third and eighth rows indicate the original numbers in the Yearbook.120 Concerning all subjects of actions, the grand total of NGOs is 4.5 times greater than that of IGOs.121 All data of N/I from left line is

117 . YEARBOOK OF INT’L ORGS, supra note 113, figs.5.1, 5.3. 118 . Id. 119 . Id. 120 . Id. 121 . Id.

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higher than the average (High), while that of right line is below the average (Low). In order to reduce contingency, the total amounts under 1,000 are not taken into consideration (except for defense, for it is traditional subjects in international politics).122 Amounts above 3,000 can be categorized as high and those between 1,000 and 3,000 as low. The figure below concludes this section: Clearly, NGOs frequently get involved in subjects like medicine, health care, and education, for both the index of N/I and the total

Total Amount Total Amount (High Above 3000) (Low 1000-3000) NGOs / IGOs Medicine/ Classification/ (High Above Avg.) Health Care/ Futurology Education NGOs / IGOs Environment/Finance Defence/Government (Low Below Avg.)

amount of organizations are high.123 In contrast, they are least active in areas like defense and government, which are low in both N/I and the total. For some subjects of this category, the number of IGOs is very close to or even higher than that of NGOs. For example, there are 1,227 IGOs working on the subject of Government, which is approaching the number NGOs, estimated to be 1,370.124 Comparative- ly, IGOs fit better in areas like Environment and Finance. While there are large amounts of IGOs active on these subjects, the NGOs seldom work on them. The subjects with high N/I statistics and low totals are difficult to analyze. This is because the comparative advantage that NGOs have over IGOs on these subjects is highly interfered with by the naturally low saturation of international organizations.

122 . Id. 123 . YEARBOOK OF INT’L ORGS, supra note 113. 124 . Id.

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C. The First Explanation—State Interests. What factor causes this diverse distribution of international organizations by subjects? One reasonable explanation is state interests. Thomas Davies, a professor at City University London, discovered this factor when analyzing the ascent and decline of the NGOs.125 He had traced back the three waves of “transnational civil society:” the mid-Nineteenth Century to the outset of the Twentieth Century, the end of World War I to the 1920s, and the second half of the Twentieth Century to the outset of the new millennium.126 Each wave had witnessed a period of great expansion in varieties and numbers of NGOs with their proponents claiming to speak for “the most representative forces of the different countries” in the period before World War I, the “public opinion of the world” in the period preceding World War II or “global civil society” in the period preceding the September 11, 2001 attacks,127 but finally ended with the demise of transnational civil society.128 Davies analyzed some factors that affect the demise, including “Scientific/Technological, Environ- mental, Economic, Social, External Politics, and Internal Politics.”129 All of these factors are believed to be double-edged swords, which could both facilitate and deter the development of NGOs.130 The trend of detriment is always brought by factions and illiberal actors, and is always accompanied by exhaustion. What contributes to fragmentation of the international civil society, promoted by NGOs? Divisive trends always originate from areas and issues involving high state interests, such as disarmament in the 1930s and substitution for the welfare roles of fragile states in the post-Cold War era.131 If these areas and issues are preoccupied by nationalism, as in the late Nineteenth Century, NGOs could stop acting on behalf of world public opinion. According to Davies, it is nationalism – not the inner problem of the NGO – that operates only on behalf of the sovereign state, narrows its prospect of interest within the national boundaries, and devastates the prospect of the reviving of

125 . DAVIES, supra note 91, at 180. 126 . Id. at 177-78. 127 . Id. at 181. 128 . Id. 129 . Id. at 9. 130 . DAVIES, supra note 91, 12-13. 131 . Id. at 175.

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2015-2016 UB Journal of International Law individuals.132 He complains “the leadership of INGOs and transnational coalitions of INGOs should avoid claims to speak on behalf of the public opinion of the world or global civil society, when such organizations have only ever represented a segment of the world’s population.”133 Davies’s theory can also explain the case of diverse distribution of NGO by subject. It is easy to infer from Davies’s point of view that NGOs could be expected to thrive on subjects, or in fields, involved with low state interest. Some NGOs widely distribute on subjects like medicine, healthcare, and education, and are considered as fields involved with lower state interests. Economic areas are involved with higher state interest. There are relatively fewer NGOs, but IGOs are more vigorous in the fields mentioned above.134 Gov- ernment, defense, and military are identified with fields within intense state interest, in which NGOs struggle to survive, while IGOs adapt better.135 Further analysis supports this suggestion. In fields of structure and context social action which government and defense belong to, the number of type G NGOs (Internationally oriented national organizations) and N (National organizations), which are influenced by the strong boundaries of the states, are more than that of Type E,136 in which the structure of the sovereign state tends to be ignored.137 While in cosmosphere/geosphere and biosphere which contain medicine and bio-science, the situation is completely the opposite.138 We can safely conclude that when approaching the pole of medicine and biosphere with or without low involving state interests, the influence by boundaries of the states to NGOs gradually weaken.139 While getting close to the opposite—fields involved with the most intensive

132 . Id. 133 . Id, at 181-82. 134 . Id, at 91-92. 135 . Id, at 11-12. 136 . YEARBOOK OF INT’L ORGS, supra note 113, fig. 5.6, at 175. Type E refers to organizations emanating from places, persons, bodies. 137 . Id. 138 . Id. 139 . Id.

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Potential Impacts on Individuals Vol. IV, No. I state interests—the structure of states tend to acquire an increasing impact on international cooperation.140 Though having type difference with NGOs, the distribution tendency of IGOs is similar. In fields involving the most intensive state interests, multilateral treaties and intergovernmental agreements constitute the majority of IGOs.141 For example, IGOs of Type T account for 7,133 out of 13,980 of the total in fields of structure and context social action.142 Compared to other types, Type T is closer to bilateral treaties reached by states.143 So in areas involved with high state interests, where it is hard for NGOs to survive, the structure of IGOs is most similar to the system of sovereignty of states. We could discover a spectrum of fields ranging from intense state interest to low state interest.144 This spectrum expands from areas of defense, military, government, and other vital interests concerning the sovereign of the state at one pole, to fields like finance and environment in the middle, then to the areas with low or without state interest, such as medicine, health care and education at the opposite.145 The first level fields close to the pole involving intense state interest could be hard for international organizations to survive. They mainly are the stages of the sovereign states. The finance and environment in the middle level are environmentally friendly to IGOs.146 NGOs act most vigorously in the third level.147 If we make a narrow standard to classify the degree of international cooperation by its efficiency, the system of the sovereign states without doubt has the lowest success ratio and efficiency for cooperation. When the nucleus of autonomy is still possessed by the states, the system of the states always exists as a Hobbesian state of nature. If we see the boundaries of the states as the obstacle for international cooperation, the external environment for idealistic NGOs will avoid the boundaries of the states and dwell in the third level where NGOs could act uniformly without segmenting themselves and acquire the

140 . Id. 141 . Id. 142 . YEARBOOK OF INT’L ORGS, supra note 113. 143 . Id. 144 . Id. 145 . Id. 146 . Id. 147 . Id.

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2015-2016 UB Journal of International Law highest degree of cooperation. The spectrum discussed here is shown in the following figure:

State Interest High Medium Low Fields/ Defense/Military Environment/ Medicine/ Subjects /Government Finance Health Care Typical States IGOs NGOs Subjects Degree of Low Medium High Cooperation

While at the one pole, the chaos sphere of Hobbesian state of nature hangs over the international cooperation; the opposite presents a clear profile of human society. Accompanied by the higher degree of cooperation promoted by NGOs, the global human society, consisted of institutions that “straddle the whole earth, and have complex effects that are felt in its four corners,”148 though may still be a “project” or an “aspiration” rather than an empirically observable phenomenon,149 is already on the agenda instead of only dwelling in the human mind. The prospect of this kind of global human society which is believed to be founded by NGOs through representing the public claims150 seems to be much closer to the other prospect of the state of nature proposed by Pufendorf, who considered the state of nature as a human society created through common wealth. Howev- er, this analogy has finally proved to be a misunderstanding.151 In the background of globalization, common wealth—which is redefined under the name of “public good” by economists—”stands at the end of a chain stretching from local street cleaning to national defense and environmental protection to global warming.”152 Pedro

148 . JOHN KEANE, GLOBAL CIVIL SOCIETY? 8 (Cambridge Univ. Press 2003). 149 . DAVIES, supra note 91, at 8. 150 . DOROTHEA BAUR, NGOS AS LEGITIMATE PARTNERS OF CORPORATIONS: A POLITICAL CONCEPTUALIZATION 5 (2011). 151 . Id. at 6. 152 . INGE KAUL, ET AL., PROVIDING GLOBAL PUBLIC GOODS: MANAGING GLOBALIZATION xiv (Richard A. Musgrave & Peggy B. Musgrave eds., Oxford Univ. Press 2003).

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Conceição listed several leading “Global Public Goods” including international financial stability, multilateral trade regime, global com- munications network and the internet, communicable disease control, reducing the excessive disease burden, climate stability, and peace and security.153 Among them, peace, which acts, as the sole common wealth in Pufendorf’s theory, is just one category of these series of “Global Public Good.”154 However, NGOs are active in providing the rest of “Global Public Good,” which is especially true since the crisis of world war was lightened after the cold war.155 These kinds of common wealth were foreign to international areas in the Nineteenth Century and also, of course, much harder for Pufendorf to prophesize at his time.156 D. Amendment to the First Explanation—Complexity and Abstractness. It is important to make clear the relationship of the diverse subjects of common wealth discussed by Pufendorf on international society, and modern scholars on the “Global Public Good” or benefits to globalization promoted by NGOS. In other words, what is the real difference between peace/war and other subjects? Does the former simply identify with an area involved with intense state interest? It is clear that the positive answer fails to meet any situation.157 For example, health of individuals could be one of the most important for public good. The area of medicine was supposed to get involved with intense state interests and is not environmentally friendly for NGOs.158 However, this is not the case according to the Yearbook of International Organizations. It states that there were 4,765 NGOs operating in the fields of medicine by 2013, which is 26.5 times greater than the number of IGOs in the same area. It is well above the aver-

153 . Id., at 156. 154 . Compare PROVIDING GLOBAL PUBLIC GOODS: MANAGING GLOBALIZATION xiv (Inge Kaul et al. eds., 2003) with SAMUEL FREIHERR VON PUFENDORF, THE WHOLE DUTY OF MAN: ACCORDING TO THE LAW OF NATURE BOOK II 255 (1698). 155 . INGE KAUL, ET AL., supra note 152, at 202. 156 . Id. at 206. 157 . WORLD HEALTH ORG., MEASURING MEDICINE PRICES, AVAILABILITY, AFFORDABILITY AND PRICE COMPONENTS xi (4th ed. 2008), http://www.who.int/medicines/areas/access/OMS_Medicine_prices.pdf. 158 . Id. at 1-2.

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2015-2016 UB Journal of International Law age ratio.159 This means that, though having great correlation with commonwealth, the field of medicine is still extremely environmentally friendly to NGOs, which is a contradiction to our inference.160 This example weakens the assumption suggested above, which makes it necessary to examine the premise underlining this assumption. This assumption measures state interests merely according to their quantity. If the state interests were reckoned only by quantitative aspects, then the degree of it can just be measured and leveled by the possible devotion or deprivation for common wealth created by the actions of international organizations.161 When analyzing individuals’ interest interpreted as pleasure, John Mill complained, “[i]t would be absurd that while, in estimating all other things, quality is considered as well as quantity, the estimation of pleasure should be supposed to depend on quantity alone.”162 Quantity alone is not sufficient to measure state interests, quality should be taken into account as well. This means that the diverse areas and subjects NGOs operate on can be distinguished from others by state interests of quantity as well as quality.163 What is the meaning of “quality” here? Pertaining to subjects themselves, quality can mean non-reductive and incommensurable values of different public good in diverse areas.164 Based on this premise, John Mill claimed that it might change the question of who is the best judge to evaluate his own pleasure “in their opportunities

st 159 . Global Public Goods: International Cooperation in the 21 Century, UNION OF INT’L ASS’N 180 (2014), http://www.uia.org/sites/uia.org/files/misc_pdfs/stats/Number_of_international_organi zations_by_subject_of_activity_2013.pdf. 160 . Compare WORLD HEALTH ORG., MEASURING MEDICINE PRICES, AVAILABILITY, AFFORDABILITY AND PRICE COMPONENTS xi (4th ed. 2008), http://www.who.int/medicines/areas/access/OMS_Medicine_prices.pdf, with Number of International Organizations by Subject of Activity, UNION OF INT’L ASS’N 180 (2014), http://www.uia.org/sites/uia.org/files/misc_pdfs/stats/Number_of_international_organi zations_by_subject_of_activity_2013.pdf. st 161 . Global Public Goods: International Cooperation in the 21 Century, supra note 159, at 15. 162 . JOHN STUART MILL, UTILITARIANISM 11-12 (1863). st 163 . Global Public Goods: International Cooperation in the 21 Century, supra note 161. 164 . MILL, supra note 162, at 17.

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Potential Impacts on Individuals Vol. IV, No. I of experience,” instead of answering how to measure individuals’ interests or “pleasure” directly in his own term.165 Herbert Spencer once made an explanation of it, which could apply to demonstrate the relationship of the sovereign state to its own interests as well:

To have complete felicity is to have all the faculties exerted in the ratio of their several developments . . . but the minds of no two individuals contain the same combination of elements. Duplicate men are not to be found. There is in each a different balance of desires. The conditions adapted for the highest enjoyment of one, would not perfectly compass the same end for any other. And consequently the notion of happiness must vary with the disposition and character; that is, must vary indefinitely.166 Likewise, in a complex situation, which means promoting interests in one area could lead to a deficit in the other area, only the sovereign state itself is best to measure its interests for there are no two countries that are duplicate in their level of development and the preference of their citizens.167 For example, environmental rights could be exalted in a materially prosperous and highly developed modern state.168 While in an impoverished town, citizens would need to exhaust the resources of the forest nearby to compensate for short- age of the necessity.169 This is why the “West supported environmental NGOs gaining access to the Earth Summit” always confront the hostility “from developing country governments, who were worried that environment issues might become constrains upon development.”170 Then there is no general principle to measure best interests of states. Other than “how to evaluate the state interests,” the real

165 . Id. 166 . HERBERT SPENCER, SOCIAL STATICS; OR, THE CONDITIONS ESSENTIAL TO HAPPINESS SPECIFIED, AND THE FIRST OF THEM DEVELOPED 15-16 (1873). 167 . Id. at 319. 168 . A. Dan Tarlock, The Future of Environmental Rule of Law Litigation (2000 Garrison Lecture), 19 Pace Envtl. L. Rev. 575, 597 (2002), http://digitalcommons.pace.edu/pelr/vol19/iss2/5. 169 . Id. at 598. 170 . PETER WILLETTS, NON-GOVERNMENTAL ORGANIZATIONS IN WORLD POLITICS 61 (2011).

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2015-2016 UB Journal of International Law problem is “who is most capable to evaluate them.”171 Only the state can measure which is best for its citizens through its sovereign. In many fields of international politics, “benefiting regions may not coincide with political boundaries.”172 Regional goals, according to optimal disposition of world systems to achieve highest effective- ness are far from fitting the states’ best interests according its own reckoning. In some areas, states tend to claim sovereignty on policy and development project making according to their best benefit.173 So government always hinders actions of NGOs in these areas. We can attribute subjects like social problems, economy, and even military and territory to these complex fields. However, when promoting benefits in some areas can be compatible with others fields and also easily absorbed into the states’ development plan, sovereign states tend to stop acting as obstacles to NGOs.174 Contrary to complex ones, these areas can be characterized by abstractness. As the complexity goes down towards abstractness, the subjects become more available and environmentally friendly to NGOs.175

E. The Second Explanation—Clarity of Goals. Robert Jordan has discovered that “most INGOs pursue particular interests, their foremost task is the attainment of specific goals for promotion of their interests.”176 However, definite goals do not only depend on the choices of INGOs. They also relate to the degree of difficulty of forming clarity of goals in international perspective nurtured by specific fields. If the subject of a specific field cannot provide NGOs with clear goals by its nature, this field is not good soil for NGOs.177 Referring to areas like defense and military in international politics, there is no real common goal among states except self- preservation.178 Of course, states also could have shared values in

171 . SPENCER, supra note 166, at 320. 172 . INGE KAUL, ET AL., supra note 152, at xiv-xv. 173 . Id. at 127. 174 . Id. at 182. 175 . Id. at 126. 176 . ROBERT JORDAN, INTERNATIONAL ORGANIZATIONS: A COMPARATIVE APPROACH TO THE MANAGEMENT OF COOPERATION 34 (Library of Congress Cataloging-in-Publication Data, 4th ed. 2001). 177 . R.K. GUPTA, NGO’S AND GLOBAL POLICY (Mahaveer & Sons, 2009). 178 . LEVIATHAN, supra note 41, at Ch. 13.

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Potential Impacts on Individuals Vol. IV, No. I these fields and cooperated as military alliances. But, it is not sufficient for them to “eliminate all other causes of war.”179 Because the states “should rather, first, make a league against their enemies (re- bellion) and afterwards, fight against one another.”180 Compared to some weak bind by shared values, self-preservation is more essential to the international relationship. Hobbes has clearly illustrated that self-preservation, as a special common wealth. is by no means considered a fixed goal.181 In the state of nature, self-preservation could expand and permeate into any kind of concrete goal. As a permanent and stable relationship among its members, NGOs prefer the fields that could provide goals precisely defined by their nature rather than by chance.182 What’s more, defense and military lie in “a site of justice,”183 which is a stage full of moral language, good or evil, just and unjust. Every state cannot fail in equipping itself with good and just to legislate its action. Then these subjects cast the actors back to the state of nature. When analyzing the defects of the state of nature, John Locke pointed out that “there wants a known and indifferent judge, with authority to determine all differences according to the established law.”184 Without this kind of judge, only diverse subjects which “order their actions, and dispose of their possessions and persons, as they think fit”185 exist. These areas are kept untouched for sovereign state in Hobbes’ century. Even today, sovereign states seek cooperation with each other in the form of temporary Strategic Partner or instituting a Dispute-Resolving Mechanism. As a result, the influence of NGOs which pursue common good that transcends states’ interest, is rejected in these areas. Distinct from “site of justice,” fields like medicine, health care, education, etc. can inspire NGO operations to form clear, defined, and precise goals, contradictory to vague, diffuse, and relatively un-

179 . NOEL MALCOLM, ASPECT OF HOBBES 455 (Oxford Univ. Press 2002). 180 . THOMAS HOBBES, BEHEMOTH 144 (The Univ. of Chicago Press 1990). 181 . LEVIATHAN, supra note 41, Ch. 14. 182 . R.K. GUPTA, supra note 177. 183 . Michel Foucault first used this term to indicate the market in the middle ages and the 16th and 17th Century. The politics, of course, is a typical site of justice. MICHEL FOUCAULT, THE BIRTH OF BIOPOLITICS, 30 (Palgrave Macmillan 2008). 184 . JOHN LOCKE, THE SECOND TREATISES OF GOVERNMENT, 125. 185 . Id. at Chapter 2. 4.

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specified goals.186 These subjects are not identified with ones having only a sole primary goal, because NGOs in these fields can have many primary goals, but still operate abstractly with clearly defined multi-goals. Areas like education, health, and science,187 which tend to help NGOs operate on them to form clearly defined and precise goals, are favored for NGOs to prosper. Some areas like environment and social problems, though they could not always escape from contradicting other areas’ goals of development, can still provide relatively precise goals for NGOs. Des- pise some resistance, NGOs also thrive in these areas. A well- organized market is still “a site of justice.”188 Because it creates competitive relations among various subjects, and rejects any unified goal, in general sense, for its participants. However, when a unified global market is still in development, establishing it is a great project, which can provide clearly defined goal for NGOs. Establishing a global market is one of the most significant goals after the Cold War, it is not surprising that the number of INGOs that operate in areas of major economic concern have generally grown more rapidly than the number of those that are concerned with essentially noneconomic matters.189 We can categorize some typical areas with clarity of the “Goals of Subjects” presented in the figure below:

Level by Typical Areas Goals of Subjects Degree 1 Science/Technology Clearly defined, Precise 2 Environment and Social Prob- Relatively Precise lem 3 Economy and Commerce Unspecified in Economic

186 . MICHEL FOUCAULT, THE BIRTH OF BIOPOLITICS, 30 (Palgrave Macmillan 2008).

187. According to a document in 1973, NGOs’ Goal Type is categorized as “Politics, reli- gion, recreation, education, health, welfare, economics, mass media, science, etc.” Among them, goals of education, health and science can be best compatible with other develop goals. David Smith, Dimensions and Categories of Voluntary Organiza- tions/NGOs, NONPROFIT AND VOLUNTARY SECTOR Q., 116-120 (Apr. 1973). 188 . FOUCAULT, supra note 186, 30. 189 . JORDAN, supra note 176, at 509, 3733.

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Aspect 4 Military, Autonomy, Territory Vague, Diffuse, Unspecified goals

As the level moves up, clarity of the “Goals of Subjects” goes downward, and the degree of difficulty for NGOs’ survival increases. If a subject like “Science/Technology”except for some special areas getting involved with intense national interests like space technology and energy can lay a foundation for NGOs to develop programs with clearly defined and precise goals, it is ideal for NGOs in terms of survival. No NGO can excise a representative power for various sovereign states in a site of justice, for these areas lack a method of governing through programs with precise goals. To sum up, the ideal subject for an NGO is one with clearly defined, precise goals and is isolated or compatible with other subjects lest drawing governments’ hostility. Then the following question is: if there is an ideal subject that has both characters, what kind of association can be expected for NGOs that operate on it? The Character of Association Brought about by NGOs A. From Cooperation to Association. In the previous part, our analysis was confined within a single NGO. Within a NGO, groups of people gather together hierarchical- ly and are assigned respective works according to specific goals.190 The general relationship among the individuals in a NGO is cooperation. We must distinguish cooperation from association. Unlike cooperation within an organization, the association presumes plural subjects in various kinds of relationships, such as competition.191 Of course, individuals within a single NGO also have competitive relationships with each other. However, this competition is often influenced by the administrative structure and functional structure based on the division of labor of the organization. While the competitions among subjects in an association always happen among equal subjects, the association provides an open field for various organizations

190 . Gunther Luschen, Cooperation, Association, and Contest, J. OF CONFLICT RESOL., 21 (Mar. 1970). 191 . Id.

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2015-2016 UB Journal of International Law to chase their own goals.192 The competitions among them are not confined by the administrative structure and functional structure because of the division of labor of the organization. So the association is closer to an equilibrium system rather than an administrative system. No matter how fierce the competition is among subjects, this system at least has a shared formal rules which contributes to establish the game and some shared values. A healthy state is a typical civil association. Likewise, this paper categorizes NGO as a special cooperation among individuals, while the society idealized by NGOs is considered a joint unit. The process of thriving NGOs is the same process for reproduc- ing their way of governing. When NGOs might acquire the dominant role in the whole society, they are socialized and reshape the social association by their reproductive works. Though the association presumes competition among subjects, it also constitutes a system of basic rules for them. As Luschen Gunther claims, “even among parties at war, there is a certain amount of mutual understanding.”193 So the mutual understanding is nothing abnormal in a social association. The mutual understanding among NGOs helps to form the main character of the social association dominant and also idealized by NGOs. What might it be? At the beginning of the ninth chapter, Mr. Szazi quoted a section from McDougal, Laswell, and Reisman’s paper: “posterity may characterize our period as the renascent of the individual.”194 What is the meaning of “the renascent of the individual?” Does it mean that “the sovereign nation-states...would come to an end and the whole international society is governed by mass?”195 Mr. Szazi rebukes this radical point of view. It may destroy the pillars of international law and reject its own essence, “i.e., the respect to fundamental freedoms of expression and self-government” which may doom the individuals.196 On the contrary, he believes that the real renascent of the individual, from the perspective of pluralism, presumes an “international system supported in various long-established legal doctrines.”197 Under

192 . Id. 193 . Id. 194 . SZAZI, supra note 15, at 271. 195 . Id. 196 . Id. at 272. 197 . Id. at 276.

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Potential Impacts on Individuals Vol. IV, No. I this presumption, through non-governmental organizations, individuals could “interact with the United Nations,” which could compensate for lack of inter-nationality in the system of states and nations.198 It can be inferred from Mr. Szazi’s work that the proliferation of NGOs could contribute to the real “renascent of the individual.” Is that the truth in any case? This, he claims, is the position of legitimate subjects for NGOs.199 If NGOs come to be the legitimate subjects, they will enter into field of politics as active actors. Therefore, his claim is not about the general relationship between NGOs and individuals; rather, he suggests endowing NGOs with direct political effect. Politics, in its broadest sense, is the activity through which individuals make, preserve, and amend the general rules by which they live.200 As active actors in international politics, NGOs have possibilities to make their desires and goals compulsory ones. Through these desires and goals, NGOs could expand and reproduce their ways of cooperation and shape international human society into a new kind of association.

B. Premises. In order to analyze the possible political impact to individuals by NGOs, we can suppose an extreme situation for NGOs, which means to create an ideal international political environment for them. We can suppose the NGOs acquire a predominant position in international politics that results in NGOs being able to create a civil society by their nature, without any distortion from the impact of states and intergovernmental organizations. This assumption can be embodied through confining the discussion into international politics rather than domestic politics. It is more reasonable to set this constraint to our discussion because it is much more difficult to imagine that a domestic NGO occupies the rudder of politics within a state. There is no dominant subject in international politics like the sovereign state in domestic politics. Based on this premise, NGOs might provide a new chance for instituting international association that never existed. The same premise can be further embodied by this state- mentNGOs also have a dominant position over other subjects in in-

198 . Id. at 276-77. 199 . Id. at 272. 200 . ANDREW HEYWOOD, POLITICS 2 (Palgrave Macmillan 4th ed. 2013).

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2015-2016 UB Journal of International Law ternational politics like states and IGOs. In experience, the impacts from states and other kinds of international organizations always op- press and distort the actions of NGOs. If we remove these impacts by granting the dominant position to NGOs in international politics, the association shaped by NGOs is clearly presented to us. With this assumption, we can make a thought experiment to address the following question: if the international society is shaped and dominated only by NGOs, what does it look like? According to the earlier part of the paper, an abstract subject that can also nurture precise goals tends to idealize NGOs. Under the double ideal premises—the ideal subjects being the internal condition for NGOs and the ideal environment of politics, which is the external condition—what kind of global human society would be nurtured through the association impulse by NGOs? Can this new pattern of association in international politics really promote the emancipation of individuals or be compatible with the profits of individuals? C. Enterprise Association. On idealistic subjects, NGOs easily concentrate on clearly defined and precise goals. The goals are supposed to be shared by members of NGOs. Individuals who take part in the association in forms of NGOs connect each other through a common purpose or interest. Mr. Oakeshott once defined this kind of cooperation on the foundation of specific purposes as enterprise association.201 Such association is to give an intelligible account of their relationship “only by specifying the object, the purpose, or the interest in terms of why they are related.”202 Then we can also categorize areas like science and technology or even environment and social problem as areas for enterprises. Areas of enterprise are easy for NGOs to multiply. Ac- cordingly, NGOs in these areas are always present as enterprise association of individuals. According to specific purposes in a particular field, the NGO analyzes itself by constitute according to the natural or functional attributes of the regions. NGOs are confined by their goals, which lead the sub-level goals making and aiming to effectively achieve the final goals. It means that clearly defined and precise goals in particular ar-

201 . MICHAEL OAKESHOTT, ON HUMAN CONDUCT 115 (Oxford Univ. Press 1975). 202 . Id. at 116.

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Potential Impacts on Individuals Vol. IV, No. I eas not only contribute to an ideal condition for NGOs, but also bind them. Natural or functional attributes of the regions, in the perspective of an NGO, may not coincide with political boundaries. In order to fulfill the ideal allocation of the regional goals of governance, NGOs tend to ignore all the political boundaries of the states, which is not, of course, compatible with states’ interests. In a specific area, NGOs are prone to unite or absorb a dominant one by nature, other than keep the separate situation perpetual. Rob- ert Nozick, a professor at Harvard University, suggested that, in the state of nature, a dominant protective association gradually substi- tutes diverse protective associations.203 The NGOs are different from protective associations which are viewed as “larva” of the states. The discrepancy makes the uniting process much easier for diverse NGOs to be absorbed by a dominant NGO in specific area. The most significant difference between them is that the NGOs do not seek to mo- nopolize the coercive force by their nature. The issue of monopolizing the coercive force, of course, is always involved with fierce disputes or even wars, which may make the chaos persist. On the contrary, NGOs always associate individuals mainly through interests inducing, by claiming to seek for common wealth in particular areas. So the dominant NGO in the specific area is imaginable. Besides, to solve problems or make efficient progress in a specific area, NGOs need the knowledge and technology of expertise. The power structure of professional knowledge and technology are exclusive plural subjects by nature. Therefore, the premise of plural NGOs will hinder the idealization of integrating resources in applying professional knowledge and technology. The NGOs are prone to unite by nature. The idealized NGO is believed as the one that has the position of monopoly in a specific area. Then we can suggest that the international system is only constituted by three states: A, B and C; and also, three areas α,β and γ make up the multi-aspects of common interests. In order to achieve maximum output to fulfill the special purpose in α, goals in regions of A, B, and C should be distributed respectively as αA, αB, and αC, if and only if sum of αA+αB+αC is maximum, and so on. On contrary, to maximize country A’s benefit, goals in ares α, β, and γ should be distributed respectively as Aα, Aβ, and Aγ, if and only if sum of

203 . ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 16 (Basic Books 1974).

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Aα+Aβ+Aγ is maximum, and so on. Then we can list goals distribution in diverse areas and regions according to two different stand- points in the figure below:

Area A B C R.D According State to Areas α Aα αA Bα αB Cα αC αA+αB+αC β Aβ βA Bβ βB Cβ βC βA+βB+βC γ Aγ γA Bγ γB Cγ γC γA+γB+γC R.D According Aα+Aβ+Aγ Bα+Bβ+Bγ Cα+Cβ+Cγ Common to State Interests

It is plain that Aα is by no means identified with αA, and Aβ is by no means identified with βA, and so on. To achieve a specific goal, NGOs should adopt rational distribution according to maximum output in geographic areas it operates, and will reject goals in particular regions preferred allocated by states. It is easy for us to conclude that NGOs are guided by their fixed goals in specific areas and tend to suppress states’ goals if they can predominate politics. Amongst the two perspectives, individual are the core of the national perspective, while NGOs share a premise of a highly non-personalized perspective and cannot represent the individuals. For only the natural or functional attributes of the regions will be taken into consideration, and also the voice of individuals is silenced by professional knowledge for achieving the particular goals efficiently. In international politics, only sovereign states, as persons204 behind interests and goals, can represent individuals, if it legalized by a reasonable political process.205 If the effects of states are overridden by that of NGOs in international society, individuals will be led to doom. Be- sides, there are also separate perspectives to calculate common interests or common goals. At the standpoint of NGOs, common interests consist of interests in diverse areas. As a result, to maximize common interests, the maximum of αA+αB+αC, βA+βB+βC, and γA+γB+γC should be ful-

204 . LEVIATHAN, supra note 41, at Ch. 16. 205 . Id.

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Potential Impacts on Individuals Vol. IV, No. I filled simultaneously. However, it is nearly impossible to achieve this goal. For the goal in area α is considered by no means compatible with the goals in β and γ. As Oakeshott believed, “genuinely con- flicting purposes or interests may make it difficult for an agent to embrace certain combinations of enterprise association.”206 There- fore, the goals expected by NGOs are only “contingently connected with the common purpose or interest concerned.”207 On the other hand, the real joint purpose or interest can only be expected in the system of states. Though facing immeasurable difficulties, joint purpose or interest can be achieved by an idealized discourse among sovereign states. Finally, representative democracy can open a door for individuals to take part in the international politics. D. Closed International Society. When the policies enforced by states, according to their sovereign in the specific area, are discordant with the governance of NGOs, there is tension. Similarly, in a state, it is nothing but colli- sion among classes and individuals caused by their diverse decisions that leads to tension. Karl Popper has defined an open society as one “in which individuals are confronted with personal decisions.”208 For the states to claim their authority to make decisions in complex situation, we can say the international society constituted by sovereign states is an open society. As we have noted, abstract fields and subjects are the important elements to contribute to an ideal environment for NGOs. This ideal circumstance makes NGOs operating abstractly a great benefit of it. Operating abstractly, as we have explained, means getting rid of obstacles by states’ actions. Geographical space, in perspective of IN- GOs, tends to exclude political space of territories.209 The utopia of the international society dominated by the governance of INGO is the very association without tension. Absence of social tension, as Pop- per argues, is the character of “a tribal closed society” which “may be based on slavery does not create in itself a social tension, because slaves sometimes form no more part of society than its cattle; their

206 . OAKESHOTT, supra note 201, at 117. 207 . Id. at 115. 208 . KARL POPPER, THE OPEN SOCIETY AND ITS ENEMIES 165 (Princeton Univ. Press 2013). 209 . Id. at 606-7.

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2015-2016 UB Journal of International Law aspirations and problems do not necessarily create anything that is felt by the rulers as a problem within society.”210 Of course, there are seldom any similarities between individuals or states in modern global society and slaves in ancient society.211 However, what we take into consideration is not experienced in modern global society. This analogy is on the premise of the ideal environment of NGO. Under this assumption, individuals as well as states, though important in general, will not create any problems per- ceived by the INGOs. According to this analogy, a NGO predomi- nated international world is a “closed society,” which has as its creed that the individual is nothing. There is still an unsolved problem hindering this analogy. Ac- cording to Popper, a closed society is characterized by the belief in magical taboos212 and submission to magical force213 which is a mys- tical unity,214 and hostile to reason,215 while an open society is marked by rationalism216 and critical217 thought. An NGO is much closer to the production of reason than magical force. How can we identify an international society dominated by NGOs as a closed society? The problem is created by confusing different categories of reason. Which kind of reason is the mother of NGO? Is it the same one that gives birth to the open society? If we clarify the meanings of term “reason” in different settings, all the confusions could be wiped out. In Plato’s work, reason acts as one of the three elements of spirit, the other two being courage and want.218 Reason is “the ability to behave reasonably and with judgment”219 and dwells in the upper region of the soul. It is a good guide for human behavior in any occasion without limiting itself to logical aspects — the point of which also inherited by Aristotle, for reason always functions in super-logical

210 . Id. at 614. 211 . Id. at 16. 212 . Id. at 513. 213 . POPPER, supra note 208, at 613. 214 . Id. 215 . Id. 216 . Id. at 513. 217 . Id. at 613. 218 . MICHAEL OAKESHOTT, LECTURES IN THE HISTORY OF POLITICAL THOUGHT 152 (Terry Nardin & Luke O’Sullivan eds., 2011). 219 . Id.

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Potential Impacts on Individuals Vol. IV, No. I aspects of life.220 It is reason that endows humans with the ability of communication by means of language. Somewhat close to Popper’s argument, Aristotle identified reason to making reasonable arguments. Reason in eyes of is Greek philosophers is an emancipator rather than a disaster to individuals. Reason has had multiple meanings for a long time, it has been defined as “the capacity for consciously making sense of things, applying logic, establishing and verifying facts, and changing or justify- ing practices, institutions, and beliefs based on new or existing information.”221 However, it is narrowed gradually into the logical aspect of the world. When scientism began to spread all over the Eu- rope beginning in the Seventeenth Century with an arrogant belief that the truth of everything is logic and experience observed; reason came to be viewed as a productive system which produces truth through theories by enforcing logic forms to observed experiences.222 In this period, though reason was confined into a solo aspect of logic, it was also compatible to various values. Since the Nineteenth Century, utility has increasingly encom- passed all the traditional values.223 Reason began to act as a servant of technology and helped in calculating profit and loss in interests.224 Reason and utility contributed to establish the “regime of verification” which, according to Foucault, “is not a law of truth, but a set of rules enabling one to establish which statements in a given discourse can be described as true or false.”225 In the public fields, a regime of truth that only operated in science before and, according to Hobbes,226 by no means entered into fields of practice, connected up to governing practice for the first time. A regime of truth sanctified this kind of reason and blocked its other aspects from its traditional meaning. In the modern world, reason has a close connection with “a new technology of the exercise of power.”227 Michel Foucault keeps a

220 . Id. 221 . Nikolas Kompridis, So We Need Something Else to Mean, 8 INT’L J. PHIL. STUD. 271 (2000). 222 . See generally id. 223 . FOUCAULT, supra note 186, at 44. 224 . Id. 225 . Id. at 35. 226 . See generally LEVIATHAN, supra note 41, 158. 227 . MICHEL FOUCAULT, POWER/KNOWLEDGE 124 (Colin Gordon ed., Colin Gordon, Leo Marshall, John Mepham, & Kate Soper trans. 1980).

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2015-2016 UB Journal of International Law close eye on this innovation, which “begins to exercise itself through social production and social service.”228 This new technology has redefined the problems in some fields such as “demography, public health, hygiene, housing conditions, longevity and fertility,”229 which are the very soil of NGOs’ thriving. Dealing with problems in these new fields, “a real and effective ‘incorporation’ of power was necessary”230 for NGOs. Under the regime of truth, reason being in its new form, is believed to be the best tool to achieve this aim for it can provide both truth and efficiency. On the one hand, the regime of truth makes any rational criticism of the new kind of reason inconceiva- ble.231 On the other hand, it also helps reason create some rules for NGOs under the name of governing according to truth concerning these two phenomena. Reason, throughout the cooperation inspired by NGOs’ operations, is a perfect substitute for magic force and ta- boo in a closed society. According to Mr. Oakeshott, it is just this new form of reason that is destructive to individuality.232 Popper claims reason, a character of an open society, is identified with arguments. Arguments suggest multi-subjects, thus making reason individualized. The real open society exists only when individuals can use reason to plan as they see fit and express themselves in the public world. This highly individualized reason is the same as the one in Hobbes’ theory.233 In Hobbes’ theory human beings are not considered to be irrational creations. Rather, their reason is highly individualized.234 Any form of acquired universal reason is not legitimate. This individualized reason led to chaos in international politics in the Seventeenth Century which is also believed to be the golden age of autonomy according to Richard Tuck.235 Similarly, according to Popper’s point of view, conflict is the result of the individualized reason, and is widespread in the open society. On the contrary, reason in the context of NGOs is supported by the regime of

228 . Id. at 125. 229 . Id. These problematic fields also guide the formation of global governance in the contemporary era. 230 . Id. 231 . See generally MICHAEL OAKESHOTT, HOBBES ON CIVIL ASSOCIATION 66-67 (1975). 232 . Id. 233 . Id. at 67. 234 . Id. 235 . TUCK, supra note 27, at 11.

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Potential Impacts on Individuals Vol. IV, No. I truth, which sweeps out any conflicts and brings doom to the individuals. If international society is dominated by the governance of NGOs, individuals can hardly cause conflicts and create tension from inside, and are easily ignored in politics. Then what does it matter to the NGO? If there is no big tension from inside, its relation with objects acquires an incomparable importance. Then the answer could be some external menace. What is external menace? The external menace acts as “fortune” to NGOs. The term “fortune” is borrowed from the politic theory of classic republicanism. Fortune is defined in classic republicanism as the force which directs contingent events, and thus “symbolizes pure, uncon- trolled, and illegitimated contingency.”236 Fortune is always used to describe the relationship between the sovereign and the objects of its governing. In this perspective, individuals are not connected or governed directly by the sovereign who rules them. The sovereign only deals with the phenomenon of politics, which is the positive or negative impact caused by individuals. As a result, a “thin phenomenal theme of interest”237 of impact is imposed between sovereign as governor and their individuals. Thus, the voice of individuals is blocked by this kind of “thin phenomenal theme.” Concerning the way to govern a newly conquered republic, Machiavelli grimly suggested to the new king of this land “the safest way is to destroy them or to reside there.”238 In this case, the sovereign does not take new citizens as individuals “in themselves” into consideration. He only cares about the hazard of subverting the sovereign brought about by “ha- tred, and desire for vengeance.”239 The voice of individuals is silenced in this kind of governance. Similarly, NGOs also govern through this kind of “thin phenomenal theme of interests.” This goal of governance is far from satisfy- ing the real and diverse needs of individuals. The method of it is to make projects to achieve specific goals. Individuals are treated as an undifferentiated unity, and only positive or negative interests of this unity will be considered in the process of governance. This kind of governance can also cover particular areas such as democracy and

236 . J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION 156 (2d ed. 2003). 237 . FOUCAULT, supra note 186, at 46. 238 . NICCOLÒ MACHIAVELLI, THE PRINCE 2 (Peter Bondanella & Mark Musa trans., 1984). 239 . Id.

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2015-2016 UB Journal of International Law human rights. For example, some pro-democratization NGOs are immersed in the task of strengthening the taproots of democracy, and are making positive impacts on the democratization processes occur- ring in South Africa, Tajikistan and Argentina.240 Despite whatever accomplishments these NGOs have achieved, democracy is still regarded as an unfinished social project of commonwealth. In the case of pro-democratization NGOs, individuals are still not considered directly in their governance. What is most important is not the special areas or subjects NGOs deal with, but rather the way of their governance. If democracy is considered as a magnificent project rather than a kind of association of various citizens, and if human rights are treated as a commonwealth of human race as a whole rather than the precious value of every man, individuals will be submerged in this splendid prospect as well. In other words, there is no demos underlying NGO’s governance. J. H. H. Weiler, a professor and the European Union Jean Monnet Chair at the New York University School of Law, has suggested, “there is no convincing account of democracy without demos.”241 Even under our ideal premise, pro-democratization NGOs can never achieve their goals for the mission if it is not compatible with the governance because of their nature.242 E. Additional Remarks. Some critics may say our analysis is based on the idealized premise. Hence in experience, NGOs cease to reproduce this kind of association into other areas that cannot provide ideal subjects for them. Considering that the ideal subjects exist only in a few select areas among various areas of our full experience, NGOs are far from a threat to politics. This criticism confuses our method and our goal. Please remember that the aim of studying the premise of idealistic subjects is to reveal the association brought about by NGOs without any distortion. The idealized subjects premise is concerned with the

240 . JULIE FISHER, IMPORTING DEMOCRACY: THE ROLE OF NGOS IN SOUTH AFRICA, TAJIKISTAN AND ARGENTINA 3 (2013). 241 . Joseph H. H. Weiler, Governance Without Government: The Normative Challenge to the Global Legal Order, in THE GOVERNANCE OF GLOBALIZATION 49, 74 (Edmond Ma- linvaud & Louis Sabourin eds., 2004). 242 . Id.

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Potential Impacts on Individuals Vol. IV, No. I methodologies. If we achieve our research goal, the premise could be removed. When the premise is removed, the characters of society are reduced to a future possibility, and the potential impact to politics brought about by NGOs. How could it be? What really threaten politics are not NGOs as subjects in the international world. The true threat is the particular technology of governance carried by NGOs. In other words, NGOs are mere mediums of this technology of governance. The increasing impact of NGOs in some areas of international politics can open the door for the invasion of this technology of governance into all areas. What lies at the foundation of this technology is an external perspective, which is prone to view every issue as a program, and leads to the doom of individuals.243 This pattern of governance tends to reproduce the external perspective into every area through particular subjects such as NGOs. Michel Foucault once discovered this kind of technology originated in the theories and practice of governance of states in Eight- eenth Century Europe.244 He found that the term “population” which is “absolutely foreign to the juridical and political thought of earlier centuries” gradually converted the old notion “people” into politics,245 the “multiplicity of individuals” on which the term “population” has no claim, dwell in the notion of “people.” The notion of “population” as “a new collective subject” premises an external perspective in which the people as themselves never exist. Only the numerical aspect of people is considered in population through its contribution to interest.246 In the new kind of governance, the final objective is the population. As Foucault suggested, “the population is pertinent as the objective, and individuals, the series of individuals, are no longer pertinent as the objective, but simply as the instrument, relay, or condition for obtaining something at the level of the population.”247 When art of government replaced sovereignty, which meant

243 . MICHEL FOUCAULT, SECURITY, TERRITORY, POPULATION 65 (Michael Senellart ed., Graham Burchell trans., 2009). 244 . Id. 245 . Id. at 54. 246 . Id. 247 . Id.

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2015-2016 UB Journal of International Law the changing perspective, population substituted people and emerged a new object in the practice of politics.248 In fact, the method applied to deal with issues depends on the technology of governance. The different notions are the carriers of diverse perspectives. Basically, the particular perspective is con- structive to the technology of governance. Therefore, the answer of “how to deal with it” does not depend on the question “what to deal with,” rather it relies on “how to view it.” In other words, the pillar and the foundation of governance is not the objects or issues being dealt with, but the perspective which helps to construct them; therefore, what really matters is not the particular area or subject, but the specific perspective premised by the governance. Even in the same area, diverse perspectives lead to construct their subjects in totally different ways. For example, the reason that the issues of international politics before the Twentieth Century concentrated on war and peace does not mean the aspects of other issues preferred by the modern international world could not be entered into the discussion. In fact, international trade and other issues always lie at the center of international politics, but in the perspective of sovereign state dominated by the notion of autonomy, every significant issue was viewed as the representation of conflict and cooperation among sovereign states. Likewise, when the perspective is changed, the subject of war and peace may also be workable for NGOs. When wars break out amongst diverse states, the subject of security absorbs concerns for justice and states’ interests they are viewed as a new kind of program—anti-terrorism. The most significant difference between war and anti-terrorism is diverse perspectives. In the battle among the states, each side claims to act justly to legislate its actions. While in the state of anti-terrorism, the enemy is viewed as terrorism, a problem that needs to be resolved, or as a threat poised to remove states’ security. The voices of the enemies are silenced by this demo-voice-damping technology supported by the external perspective. Though lacking military power, NGOs are seldom able to work on this area. However, the battle-field reconstructed by this external perspective already has the possibility to open the door for NGOs.

248 . Id.

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Above all, just like every important issue where views are representatives of war and peace in the Seventeenth Century, every solution to major problems in the contemporary international field can be reconstructed by the external perspective into a project for governance of NGOs. The demo-voice-damping function of this new technology of governance can reform every area from discussions of multi-subjects to programs. Conclusion: The Correct Position of NGOs in International Politics. In order to clarify our discussion, we limit the term “politics” to the narrow sense: the practicing of coercive power.249 Creating policy and legislation are two major ways to practice coercive power. Under the principle of democracy, this kind of coercive power is assigned to an active legal status. This positive legal status not only requires the subjects themselves to belong to the law, but also requires them to be legislators or policy makers. However, in most cases, NGOs cannot properly function in policy making. They are always granted consultative status in international policy making. Legal personality always means a more reliable identification for active participants in politics. Peter Willetts, Emeritus Professor of Global Poli- tics at City University of London, has demonstrated special cases which can bear witness to the legal personality of NGOs.250 He discovered that some NGOs take part into international politics in one of the following forms: being equal to states in international diplomacy; being among the Observers at the UN General Assembly; having a special role in procedures for handling human rights and the environment; or by participating in intergovernmental committees.251 Be- sides, “there are currently more than 1,500 NGOs which work in collaboration with states on a basis of equality of statutes and equal participation right, including the ultimate right of voting on authoritative decisions.”252 He claims that, “states, transnational NGOs, intergovernmental organizations, international non-governmental organi-

249 . Adrian Leftwich, Politics: People, Resources and Power, in WHAT IS POLITICS: THE ACTIVITY AND ITS STUDY 62, 62 (Adam Leftwich ed., 2004). 250 . WILLETTS, supra note 170, at 83. 251 . Id. 252 . Id.

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2015-2016 UB Journal of International Law zations, and hybrid international organizations are...participants in the international legal system.”253 Through several advocates state, NGOs can be expected to have broader rights for legislation and more stable statues of legal personality. Can NGOs be seen as competent actors in politics by participating in legislation and equipping with coercive power? Of course not. In the core meaning of politics, coercive power cannot be separated from its law side, which means the norms of political power should be studied as well in specific areas. In traditional theory, politics is a site of justice. Everything that is attached to politics is a site of justice as well. For example, the market in the Middle Ages and the Six- teenth and Seventeenth Centuries was a site of justice.254 Then what is a site of justice? Without doubts, state of nature is a typical site of justice. In state of nature, as John Locke depicted, “the execution of the law of nature is...put into every man’s hand.”255 Actors in a site of justice are equipped in their claims of justice. The next question is, what is justice? A basic element constituting the presupposition of justice is harmony.256 When analyzing the justice in the state, Cicero said, through the person of Scipio that:

Just as with string instruments or pipes or in singers’ voices a certain harmony of different sounds must be maintained, and as that harmony, though arising from the management of very different notes, produces a pleasing and agreeable sound, so a state, by adjusting the proportions between the highest, lowest, and intermediate classes, as if they were musical notes, achieves...and such concord cannot exist at all without justice.257

Actually, the special “subject—state” is not important in the explanation. Cicero’s purpose was to reveal the relationship of justice and harmony by making an analogy between music and justice. Ac-

253 . Id. 254 . FOUCAULT, supra note 186. 255 . LOCKE, supra note 184, at 2.7. 256 . MARCUS CICERO, DE RE PUBLICA DE LEGIBUS: THE REPUBLIC 69 (Clinton Walker Keyes, ed. Harvard University Press 1943). 257 . Id.

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Potential Impacts on Individuals Vol. IV, No. I cording to Dooyeweerd, justice indicates “a harmonizing process preventing from any excess.”258 It means that, the subjects in the field of politics should either act as agencies “weighing all the interests against each other in a retributive sense,”259 to enforce this harmonizing process as the state sovereign does in domestic politics, or create an open stage of justice as states do in international politics. NGOs can chose neither of the two ways. An NGO, by its nature, is a goal-achieving mechanism or good-product system, not compatible with the nucleus of politics. Furthermore, concerning “public justice involves harmonizing the various interests,”260 if there are no diverse interests, there is no harmony. Meaning that harmony is a particular relationship among individuals or other subjects through the medium of interests, or we can say plural subjects are the logical presupposition of justice. The model of governance of NGO can only distinguish different parts which are absorbed into an overall goal according to their natural features and functional assignment. Then the governance of NGOs cannot contribute a harmonizing process. By contrast, it is the NGO that represents particular interests or common good, which need to be further harmonized by politics. In other words, the association operated by NGOs only have potential properties in jural aspects until it is actualized by real subjects in politics. Roy Clouser defined the jural function concerning this kind of subjects as a “Passive Function.”261 This function means that the subjects can only function objectively in a process of politics. Then we can conclude that NGOs can only function passively in politics. If the NGOs fail to fulfill the law or norm aspect of politics, it is unreasonable for them to acquire coercive force, which is supported by monopolizing violence in politics. In traditional political theory, the state governs by monopolizing violence.262 Even in modern international politics, states have to pay the price when they have bro-

258 . H. Dooyeweerd, A New Critique of Theoretical Thought. Deel 2. The General Theory of the Modal Spheres, 406 (2013), http://www.dbnl.org/tekst/dooy002newc06_01/dooy002newc06_01.pdf. 259 . Id. at 446. 260 . Jonathon Chaplin, Public Justice’ as a Critical Political Norm, 72 PHILOSOPHIA REFORMATA 130 (2007). 261 . Roy Clouser, A Brief Sketch of the Philosophy of Herman Dooyeweerd, CHRISTIAN MIND, http://www.christianmind.org/npc/wrestlers/files/dooyeweerd.pdf. 262 . LOCKE, supra note 184, at 7.88.

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2015-2016 UB Journal of International Law ken treaties among nations or other kinds of international law through the imposition of sanctions, a form of the application of coercive force. To the contrary, Thomas Risse claims that the modern practice of politics has proved that monopolization of violence is not the only way to govern.263 Interests can substitute violence in governance. He says “[p]ositive incentives as well as sanctions are meant to affect the cost-benefit calculations of the relevant parties and to induce the de- sired behavior.”264 This new kind of governance “aims at challenging fixed interests and preferences so that actors are induced in a sociali- zation process to internalize new rules and norms.”265 Actors like firms and especially NGOs always adopt this way of governance. Nevertheless, Risse’s assertion can only be applied in situations lacking a coercive force that does not conform to our narrow definition of politics, and not the case in international society.266 Where coercive force already exists, the rules and norms induced by NGOs through challenging fixed interests and preferences can only be considered a part of politics when they are authorized or at least acquiesced by it.267 Risse has correctly indicated that until now, NGOs govern mainly through the choices of individuals, rather than coercive force.268 The ideal civil society is the heaven of choices. NGOs are ingenious inventions for fulfilling the choices of individuals and promoting the vitality of civil society. Therefore, there is no con- demnation for them to thrive in civil society. Is it right for NGOs to be equipped with coercive force? The answer is definitely no. For granting them legislative power is totally another thing. The will of a NGO, as an enterprise association, “is necessarily constituted by the continuous choice of each associate to be related to others in terms of a common purpose, a choice from which he/she must be able to extricate themselves.” As Mr. Oakeshott has suggested, “compulsory enterprise association is a self-contradiction.”269 If NGOs step over their boundaries and ac-

263 . RISSE, supra note 19, at 11. 264 . Id. at 11 265 . Id. at 12. 266 . Id. 267 . Id. 268 . Id. 269 . OAKESHOTT, supra note 201, at 119.

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Potential Impacts on Individuals Vol. IV, No. I quire coercive force, they contradict themselves and undermine international politics. Szazi’s study introduced the NGOs’ influence on international politics and law in its current state: NGOs not only have acquired legal personality “in several formal sources of law, notably treaties and customary international law,”270 but also, act as “shapers of policy and indispensable bridges between the general public and the intergovernmental processes” other than merely as “disseminators of information.”271 However, his study cannot deny the fact that, no matter what in- fluences NGOs have brought, they still act passively in world politics and without sharing coercive force. If NGOs keep within their boundaries, they could, as Szazi argues, “constitute a remarkable contribution to pluralism at the international level and, even more im- portantly, a fundamental gust of fresh air in the bureaucracy.”272 But if they seek for status of legitimate subjects, and ask for taking part in the process of making decisions with coercive force in international politics, by the chance of current inadequacy of formal political structure for international problem-solving and decision-making,273 they have transgressed their boundaries.

270 . SZAZI, supra note 15, at 278. 271 . U.N. Secretary-General, Arrangements and practices for the interaction of non- governmental organizations in all activities of the United Nations system, ¶¶ 57-59, U.N. Doc. A/63/170 (10 July 1998). 272 . SZAZI, supra note 15, at 278. 273 . THOMAS G. WEISS, GLOBAL GOVERNANCE: WHY WHAT WHITHER 3 (2013).

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TTIP: A Free Trade Agreement That Strengthens the International Trade Environment and Enhances the Regulatory Powers of the WTO

Suzanne De Deyne

ABSTRACT:

“Power Politics is Back, Multilateralism is Dying” – Zaki Laidi1 This comment discusses the Transatlantic Trade Investment Partnership (TTIP or the Partnership), a bi-lateral trade agreement between the United States and the European Union, in relation to the World Trade Organization (WTO). TTIP pushes the world towards greater trade liberalization, and if implemented, such a trade agreement would affect trillions of dollars in existing trade. When trade barriers are reduced, a significant amount of new possibilities open up, especially in regards to potential markets for exports, growth and improvement of competitive products, and reduction in the losses associated with the complicated clearance processes and regulations at the border. Since its establishment, the WTO has sought to establish an agreement between its members to reduce tariffs and facilitate free trade. However, it has failed to fulfill its role as a rule-maker, particularly via trade agreements, due to multi-polarity and a decline in United States hegemony. The analysis provided discusses how the Partnership could advance the function of the WTO because the implementation of an international bilateral trade agreement removes the rule-maker duty from the WTO and, instead, allows the WTO to focus on the area of dispute resolution, thus taking on a more “soft- law” approach within international trade, and ideally, returning to its full potential.

1 . Larry Cata Backer, The Trans-Pacific Partnership: Japan, China, the U.S., and the Emerging Shape of a New World Trade Regulatory Order, 13 WASH. U. GLOBAL STUD. L. REV. 49, 58 (2014).

131

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AUTHOR: Suzanne De Deyne is a third year student at the Univer- sity of Baltimore School of Law (candidate for J.D., May 2016) con- centrating in International Law. Suzanne graduated cum laude from the University of Massachusetts-Amherst with a Bachelor of Arts in Political Science and a minor in Economics. She also received a Honor’s International Relations Certificate from Mount Holyoke College.

Currently, Suzanne is the Managing Editor on the Journal of Interna- tional Law and is President of the International Law Society. Suzanne is also a Center for International and Comparative Law (CICL) Fel- low. As a fellow, Suzanne has conducted legal research for Interna- tional Rights Advocates on human rights and corporate accountability. She is also a member of the Women’s Bar Association and Phi Alpha Delta as well as the American Society of International Law and the Association of Women in International Trade. This past summer Suzanne was a legal intern at Gibson Dunn in the firm’s Brussels office, which is focused on Competition Law practice in Eu- rope.

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TTIP: A Free Trade Agreement Vol. IV, No. I

TABLE OF CONTENTS Introduction ...... 134 Background ...... 135 A. TTIP’s History ...... 135 B. WTO’s History ...... 136 i. Consensus Voting at the WTO ...... 137 C. Free Trade Agreements ...... 138 D. TTIP’s Asia-Pacific Counterpart – TPP ...... 139 E. Dispute Resolution at the WTO ...... 140 Issue…...... 141 A. Understanding U.S.-EU Regulatory Differences and TTIP ...... 141 B. The WTO’s Failure as Rule-Maker ...... 143 C. U.S. Hegemony and Multipolarity ...... 144 i. Doha Development Round ...... 144 ii. Bali Ministerial Conference ...... 145 Analysis ...... 146 A. Factors Affecting TTIP’s Implementation ...... 146 i. The European Union Demonstrates its Commitment to TTIP ...... 147 ii. The United States Demonstrates its Commitment to TTIP ...... 147 iii. TTIP Timeline and Economic Effects ...... 148 B. Benefits of WTO Change in Leadership ...... 149 C. Reviving the WTO vis-à-vis TTIP ...... 149 i. WTO and Dispute Settlement ...... 150 ii. WTO’s New Role as Coordinator ...... 150 D. Significance of Reducing Non-tariff Barriers to Trade .... 151 E. TTIP’s Effects on Third Parties and Third Party Nations . 152 i. Advantages ...... 152 ii. Disadvantages ...... 153 F. Secrecy of TTIP negotiations ...... 154 i. Significant Actions Taken by the European Union to Promote TTIP ...... 154 ii. Significant Actions Taken by the United States to Promote TTIP ...... 155 Conclusion ...... 156

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Introduction The Transatlantic Trade Investment Partnership (TTIP, or the Partnership) is a major free trade and investment agreement that is currently being negotiated, in secret, between the United States (U.S.) and the European Union (EU).2 It is being heralded as the biggest trade deal ever negotiated and if adopted, tariffs on all products exchanged across the Atlantic will be cut or eliminated.3 The central focus in the TTIP negotiations is to eliminate non-tariff barriers to trade by mitigating differences in regulations without disrupting the domestic purposes of the regulations.4 To seek trade liberalization, TTIP pinpoints three central components – market access, regulatory coherence, and international standards.5 By addressing these three components, the Partnership agreement hopes to create an opportunity for a significant boost to the U.S. and EU economies, as well as the overall global economy. Naturally, there are arguments for and against this multinational trade agreement. One widespread concern is that TTIP will detri- mentally affect the World Trade Organization (WTO). The WTO is a global international organization that aims to help producers of goods and services, exporters, and importers conduct their businesses.6 The purpose of the WTO is to ensure that international trade flows as freely, smoothly, and predictably as possible.7 A well-constructed TTIP would not necessarily conflict with the WTO. The WTO is currently at a stalemate, and the Partnership could advance the aims of the WTO because it is an international bilateral trade agreement that creates the opportunity for the WTO to transition and focus on dispute resolution, thus taking on a more “soft-law” approach within international trade, and as a result, return to its full potential.

2 . SHAYERAH ILIAS AKHTAR & VIVIAN C. JONES, CONG. RESEARCH SERV., R43158, PROPOSED TRANSATLANTIC TRADE AND INVESTMENT PARTNERSHIP (T-TIP): IN BRIEF (2014). 3 . Id. 4 . Joseph Francois et al., Reducing Transatlantic Barriers to Trade and Investment: An Economic Apprach, CENTRE FOR ECON. POL’Y RES. (Mar. 2013), http://trade.ec.europa.eu/doclib/docs/2013/march/tradoc_150737.pdf. 5 . AKHTAR & JONES, supra note 2. 6 . Id. 7 . Id.

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TTIP: A Free Trade Agreement Vol. IV, No. I

Background A. TTIP’s History In 1995, Klaus Kinkel, former Foreign Minister of Germany, put forward the main idea of the Partnership – the need for a transatlantic free trade area.8 In 1998, Leon Brittan, then EU Commissioner for Trade, pursued this idea by getting the European Commission to approve a plan for a “New Transatlantic Marketplace.”9 Then, in 2007, the U.S. and the EU agreed to the “Framework for Advancing Trans- atlantic Economic Integration between the United States of America and the European Union,” which created the short-lived political body known as the Transatlantic Economic Council (TEC).10 Finally in 2012, German Chancellor Angela Merkel publically asked digni- taries to revive the negotiations regarding a transatlantic free trade area.11 President Obama echoed this statement in his 2013 State of the Union address.12 With two prominent international figureheads in support of a transatlantic free trade agreement, TTIP negotiations rose to the forefront. The negotiations began in 2013 and are still underway today. Currently, TTIP negotiators in Washington and Brussels seek to tack- le technical issues, such as regulatory cooperation in specific industry sectors.13 Negotiators will most likely wait to address political issues until late 2015.14 Additionally, it should be noted that much of the controversy regarding the TTIP negotiations is focused on a provision for investor-state dispute settlement (ISDS). This provision would allow

8 . Hansjoerg Heppe, TTIP – New Thrust for the Transatlantic Alliance, 19 LAW & BUS. REV. AM. 441, 442 (2013). 9 . Id. at 442-43. 10 . Id. at 443. TEC’s main purpose was to advance economic integration between the EU and the U.S. by overseeing and accelerating government-to-government cooperation. Id. 11 . Id. 12 . Id. 13 . U.S., EU Defer Dealing with Majority Political Issues in TTIP until Mid-2015, INSIDE U.S. TRADE (JAN. 30, 2015), https://wtonewsstand.com/index.php?option=com_ppvuser&view=login&return=aHR 0cHM6Ly93dG9uZXdzc3RhbmQuY29tL2NvbXBvbmVudC9vcHRpb24sY29tX3Bw di9JdGVtaWQsNDQ1L2lkLDI0ODcyMTcv. 14 . Id.

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2015-2016 UB Journal of International Law companies to sue foreign governments over claims for unfair treatment and, if successful, be entitled to compensation.15 Critics argue that including the investor-state dispute settlement provision will undermine the power of national governments because governments will not be able to execute certain measures necessary to act in the best interests of their citizens.16 Specifically, opponents of ISDS generally worry that if corporate companies are able to sue foreign governments before an international tribunal, the sovereignty of domestic courts will dissipate.17 Although this fear addresses a legitimate concern, the central focus at hand here is the regulatory effect of TTIP and the potential rule-making capability of the Partnership in relation to the WTO’s survival. B. WTO’s History The WTO was established in 1995 and is the successor to the General Agreement on Tariffs and Trade (GATT), which was founded in the Bretton Woods Agreement post-World War II.18 Under GATT, trade rounds were held to discuss what is now the WTO’s overriding objective: to keep trade moving smoothly, freely, fairly, and predictably.19 The WTO achieves this goal by administering trade agreements, hosting trade negotiations, settling trade disputes, renewing national trade policies, assisting developing countries in trade policy issues, and collaborating with other international organizations.20 With about 160 members, the WTO accounts for about ninety- five percent of world trade.21 Typically the entire membership makes decisions by consensus – a unique and sometimes detrimental factor

15 . Leala Padmanabhan, TTIP: The EU-US Trade Deal Explained, BBC NEWS (DEC. 18, 2014), http://www.bbc.com/news/uk-politics-30493297. 16 . Id. 17 . Alex Lawson, EU Trade Chief Calls for Realistic Approach to Reboot TTIP, LAW 360 (2014). 18 . The WTO in Brief: Part 1, WORLD TRADE ORGANIZATION, http://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr01_e.htm (last visited Feb. 15, 2015). 19 . The WTO in Brief: Part 2, WORLD TRADE ORGANIZATION, http://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr02_e.htm (last visited Feb. 15, 2015). 20 . Id. 21 . Id.

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TTIP: A Free Trade Agreement Vol. IV, No. I in comparison to other international organizations.22 The WTO’s governing structure consists of four sectors.23 The WTO’s top-level decision-making body is the Ministerial Conference and this body meets at least once every two years.24 Below the Ministerial Confer- ence is the General Council, who meets several times a year at headquarters located in Geneva, Switzerland.25 Reporting to the General Council are the Goods Council, Services Council, and Intellectual Property (TRIPS) Council.26 If necessary, specialized committees, working groups, or working parties are created for individual agreements and specific research concentrations, such as the environment.27 The WTO consists of a Secretariat, which is located in Geneva, consists of approximately 640 staff members, and is headed by a director-general.28 Because WTO decisions are member-driven, the Secretariat’s main duties are to supply technical support, provide limited legal assistance in the dispute settlement process, and advise governments who wish to become members of the WTO.29 i. Consensus Voting at the WTO World Trade Organization negotiators conducted a careful analysis of the consensus decision-making process and defined consensus ruling as, “rules [that] generate information on state preferences [and] make it possible to formulate legislative packages that favor the interest of powerful states, yet can be accepted by all participating states, and generally considered legitimate by them.”30 The consensus decision-making process is more formally explained in Section IX:1 of the Marrakesh Agreement, which established the World

22 . Id. 23 . Id. 24 . Id. 25 . WTO in Brief: Part 2, supra note 19. 26 . Id. 27 . Id. 28 . Id. 29 . Id. 30 . Richard H. Steinberg, In the Shadow of Law or Proper? Consensus-Based Bargaining and Outcomes in the GATT/WTO, 156 INT’L ORG. 339, 342 (2002), http://www.jstor.org/stable/3078608?seq=4#page_scan_tab_contents.

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Trade Organization.31 Section IX:1 states that the WTO practice is to “arrive at decisions by consensus; that, except as otherwise provided, a vote is only taken when it has not been possible to reach a consensus; and that a consensus is reached if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision.”32 In terms of trade facilitation at the WTO, and taking into account today’s modern globalized world, consensus voting is no longer a practical or productive method for reaching decisions and establishing new rules.33 The consensus voting system has created a deadlock where members are unable to respond legislatively to a disagreement with a panel or to an Appellate Body’s legal interpretation, which enhances the already substantial amount of inefficiency.34 Furthermore, consensus voting does not provide every member the same ability to maintain vetoes and this inherently favors the status quo and makes it extremely difficult to achieve change and establish equality in regards to decision-making and practical influence at the WTO.35

C. Free Trade Agreements Free Trade Agreements (FTAs) are usually created as a treaty between two or more countries to establish a free trade area where goods and services can be exchanged across borders without tariffs, quotas, or other governmental impediments to international trade.36 The reduction of trade barriers and creation of a transparent trading environment makes it easier and cheaper for participating countries to

31 . Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1869 U.N.T.S. 379 [hereinafter Marrakesh Agreement]. 32 . Id. In 1995, the General Council of the WTO agreed that consensus-based decision- making would apply to WTO accessions, unless a member requested a vote or consensus could not be reached. The Basic Rules, WORLD TRADE ORG., https://www.wto.org/english/thewto_e/acc_e/cbt_course_e/c2s2p1_e.htm (last visited Mar. 30, 2015). 33 . Claus-Dieter Ehlermann & Lothar Ehring, Decision-Making in the World Trade Or- ganization, 8 J. INT’L ECON. L. 51 (2005), http://jiel.oxfordjournals.org/content/8/1/51.short. 34 . Id. 35 . Id. 36 . Douglas A. Irwin, International Trade Agreements, LIBR. OF ECON. AND LIBERTY, http://www.econlib.org/library/Enc/InternationalTradeAgreements.html (last visited Feb. 15, 2015).

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TTIP: A Free Trade Agreement Vol. IV, No. I export goods and services to their trading partner markets. By reducing the trade restrictions, countries that are partners in a free trade agreement are at a competitive advantage. For example, if Mexico wishes to sell bicycles to the United States for sixty dollars and Japan wishes to sell bicycles to the United States for fifty dollars, both face a twenty-dollar tariff.37 However, the tariff is eliminated for Mexican goods because it is a party to the North American Free Trade Agree- ment (NAFTA).38 As a result, Japan must pay the twenty-dollar tariff, increasing the cost of each bicycle to seventy dollars. In this specific example, U.S. consumers are able to save ten dollars per bicycle by purchasing the bicycle from the Mexican producer.39 Although the U.S. government does not receive tariff revenue from the goods being exchanged, economists have shown that the benefits of this trade diversion exceed the costs because it increases overall trade.40

D. TTIP’s Asia-Pacific Counterpart – TPP The United States is negotiating a similar free trade agreement to TTIP with Asia, known as the Trans Pacific Partnership (TPP). The following countries are parties to TPP: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam.41 The three main objectives of TPP are to increase markets for exports, provide a basis for broad Asia-Pacific regional economic integration, and increase the competitiveness of the participating states.42 According to the U.S. Trade Representative (USTR), TPP consists of five features that will make it a landmark free trade agreement.43 First, TPP will include a provision for comprehensive market access by eliminating tariffs and other barriers to trade.44 Se- cond, TPP’s structure will create full regionalization by including the internal development of production and supply chains among its

37 . Id 38 . Id. 39 . Id. 40 . Id. 41 . Joseph Laroski, Trade Negotiations: What was Accomplished This Year, LAW 360 (Dec. 17, 2013), http://www.law360.com/articles/495559/trade-negotiations-what-was- accomplished-this-year. China is not party to TTP and its negotiations. Id. 42 . Backer, supra note 1, at 53. 43 . Id. 44 . Id. at 54.

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2015-2016 UB Journal of International Law members.45 Third, TPP will focus on inter-agreement coherence.46 Fourth, TPP will help develop trade in emerging technologies, such as green and digital technologies.47 Finally, TPP is structured as a “living-agreement” where it is meant to be a work in progress and the scope is meant to be fairly comprehensive.48 Combined, the nations involved in TPP and TTIP negotiations, constitute ninety percent of the worlds’ current trade deficit with the United States and it is estimated that in 2013 the absence of these agreements cost the global economy at least 3.3 million jobs.49 Both of these calculations indicate that partnerships, like TPP and TTIP, will have major benefits in the international trading system because they allow for sustainable trade growth, a relevant missing trading factor over the past few decades. For international organizations, such as the WTO, TPP presents an opportunity to revert back to best practices by establishing an alternate framework where smaller groups of individual states can work together to create a common scheme, with agreed upon principles, and represent the major priori- ties for those within the practice of international trade. E. Dispute Resolution at the WTO At the World Trade Organization, a dispute arises when one country adopts a trade policy measure or takes some action that one or more fellow WTO members considers to be in violation of or in non-compliance with one or multiple WTO agreements.50 Recently, during the Uruguay Round agreement, more concrete and defined procedures for the dispute settlement process were established.51 The most notable change regarding this process is that rulings are now au- tomatically adopted unless there is a consensus to reject a ruling;

45 . Id. 46 . Id. 47 . Backer, supra note 1, at 54. 48 . Id. 49 . Terrance Stewart, Trade Imbalances Must be Addressed in Trade Negotiations, LAW 360 (2014) http://www.law360.com/articles/511462/trade-imbalances-must-be- addressed-in-trade-negotiations (stating that approximately 3.7 million jobs were lost in 2013 through trade deficit in goods). 50 . Settling Disputes, WORLD TRADE ORGANIZATION (JULY 2011), https://www.wto.org/english/thewto_e/whatis_e/tif_e/utw_chap3_e.pdf (stating that a third group of countries may declare an interest in the case and enjoy some rights). 51 . Id.

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TTIP: A Free Trade Agreement Vol. IV, No. I meaning, if a country wants to block a ruling it must persuade all other WTO members, including its adversary, to share its view.52 The Uruguay Round agreement also recognized that prompt settlement is essential for the WTO to function effectively, and as a result, methods other than court or tribunal, such as consultation and mediation, are preferred methods of dispute resolution.53 Under this system, to correct its fault, the WTO member in violation must offer compensation or suffer a suitable penalty.54 Dispute settlement is the central pillar of the WTO and functions as an important contributor to the stability of the global economy.55 TTIP would strengthen the WTO by allowing it to focus on its central pillar; and set a stronger precedent to enforce rules that continuously make the trading system more timely, secure, and predictable. Issue A. Understanding U.S.-EU Regulatory Differences and TTIP Regulatory principles are methodologies for structuring regulations that provide frameworks for regulatory decision-making.56 Each regulatory principle prioritizes certain values over others. For instance, the cost-benefit analysis prioritizes economic benefits whereas precautionary analysis prioritizes health and safety concerns.57 Trade-related regulatory principles include revenue collection, safety and security, environment and health, consumer protection, and trade policy.58 Executive Order 12866, issued by President Clinton, indicates that the primary regulatory principle in the United States is the cost-

52 . Id. 53 . Id. 54 . Id. 55 . Id. 56 . T. Sandra Fung, Note, Negotiations Regulatory Coherence: The Costs and Conse- quences of Disparate Regulatory Principles in the Transatlantic Trade and Investment Partnership Agreement Between the United States and the European Union, 47 CORNELL INT’L L.J. 445, 448 (2014). 57 . Id at 449. 58 . Andrew Grainger, Customs and Trade Facilitation: From Concepts to Implementa- tion, 2 WORLD CUSTOMS J. 17, 18 (2008), http://www.worldcustomsjournal.org/media/wcj/- 2008/1/customs_and_trade_facilitation_from_concepts_to_implementation.pdf

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2015-2016 UB Journal of International Law benefit analysis.59 As a result, the American regulatory scheme favors economic benefits and is predetermined to value market factors and monetary costs and benefits.60 Conversely, the European Union implements the precautionary principle when establishing regulations and pays close attention to the potentially dangerous effects of a product where levels of scientific uncertainty trump quantitative analysis.61 Despite the difference in regulatory principles, Michael Froman, a U.S. Trade Representative and head U.S. advisor on TTIP negotiations, stated concern over this difference is “largely anachronistic” in relation to the Partnership.62 Froman notes that strict reliance on each principle is an oversimplification of both U.S. and EU regulatory schemes.63 A modified regulatory scheme that recognizes both U.S. and EU regulatory principles is therefore possible and allows TTIP to come to fruition. Cecilia Malmström, EU Trade Commissioner and head EU advisor for TTIP negotiations, reiterated that the most valu- able aspect of the Partnership would be in the regulatory form.64 She stated, “I would include ways to encourage EU and U.S. authorities [to] talk to each other as they set new rules that will have a Trans- Atlantic impact, right from the beginning of the process . . . and ways to help them cooperate on developing international rules.”65 Both the U.S. and the EU acknowledge how important collaboration is in order to rectify the differences in the rulemaking processes and that a solution emerges by facilitating the free flow of commerce, through TTIP. Congressman William R. Keating, representative of the ninth district of Massachusetts, reiterated this important economic concept at the Terrorism, Nonproliferation, and Trade Subcommittee hearing on National Security Benefits of Trade Agreements with Asia and Europe. He stated, “Since this agreement is between two economies that share a strong commitment to the rule of law, transparency, and free markets, it can help elevate health, safety, labor, and en-

59 . Fung, supra note 56. 60 . Id. 61 . Id. at 450. 62 . Id. at 452. 63 . Id. at 448. 64 . Lawson, supra note 17. 65 . Id.

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TTIP: A Free Trade Agreement Vol. IV, No. I vironmental standards worldwide.”66 Congressman Keating’s statement further exemplifies the strategic big picture implications of the Partnership. B. The WTO’s Failure as Rule-Maker The weakening of the WTO has been attributed to multi-polarity, which resulted in massive changes to the power structure within the WTO.67 When the WTO was created at the conclusion of the Uru- guay Round Trade Negotiation, overall power was in the hands of the QUAD countries – United States, the European Communities, Cana- da, and Japan.68 However, the BRICS countries, Brazil, Russia, In- dia, China, and South Africa, now have more economic influence and are recognized as global economic players.69 Moreover, both the EU and the U.S. have suffered major economic downturns, and the U.S. bears the additional domestic burden of the aftereffects of the Iraq and Afghan Wars.70 At WTO negotiations, the BRICS and the developed countries, primarily the U.S. and EU, have not met eye-to-eye. The confronta- tions have made trade negotiations and compromises extremely challenging.71 Furthermore, the increased WTO membership makes reaching a consensus difficult, as there is an increase in dissimilar interests among the membership.72 The WTO cannot continue to govern the international trading system in today’s diversified economic and political system. The range of national interests and functions of each WTO member state has made it too burdensome for the WTO as an international organization to expand trade liberalization or update

66 . National Security Benefits of Trade Agreements with Asia and Europe Terrorism: Hearing Before Terrorism, Nonproliferation, and Trade Subcomm. on Foreign Affairs, 114th Cong. 3 (2015) (statement of Congressman Keating, Minority Ranking Member) [hereinafter Congressional Hearing]. 67 . Mitsuo Matsushita, A View on Future Roles of the WTO: Should There be More Soft Law in the WTO?, 17 (3) J. INT’L ECON. L. 701 (2014). Australia is also sometimes considered relevant in terms of “QUAD” countries and will therefore sometimes be involved with these negotiations. Id. 68 . Id. at 702. The QUAD countries constitute the four biggest traders within the WTO and are examined approximately once every two years. Id. 69 . Id. 70 . Id. 71 . Id. at 704. 72 . Id.

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2015-2016 UB Journal of International Law trade rules. Therefore, bilateral free trade agreements, like TTIP, are a smart solution to fulfill the role of rule-maker in international trade.

C. U.S. Hegemony and Multipolarity A hegemon is a dominating power that is historically linked to the international economic infrastructure.73 Since liberal economic world order was established in 1945 through the Bretton Woods Agreement, the United States has been the underlying hegemon.74 However, when the United States’ economic crisis occurred in 2008, developing countries, specifically the BRICS, were able to catch up with the West in both economic and political terms.75 The decline of U.S. hegemony has affected the entire system of the WTO because it relies on American supremacy and its ability to produce political and economic capital.76 This theory is known as the “hegemonic stability theory.”77 Under this theory, if the U.S., in its role as hegemon, is in relative decline, then the trading system will naturally fragment because the U.S. is not accomplishing its prerogative to provide for the public good in an open, stable, and international economic order.78 The field of international relations is constantly in flux, and power structures shift over time. As new actors have entered into the trade arena, the WTO has struggled to maintain influence. This world disorganization is illustrated by the fact that the WTO’s most recent trade rounds and conferences – ‘Doha’ and ‘Bali’ – led to a stalemate.79 i. Doha Development Round The Doha Development Round, often referred to as the Doha round trade talks, launched in 2001 and is the most recent cycle of

73 . Gordon Wong, The Beginning of World Trade Disorganization?, THE DIPLOMAT (Jan. 15, 2015), http://thediplomat.com/2015/01/the-beginning-of-world-trade- disorganization/. 74 . Id. 75 . Id. 76 . Id. 77 . Id. 78 . Wong, supra note 73. 79 . Id.

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WTO trade negotiations.80 The WTO has held a total of nine rounds of multilateral trade talks since the end of the WWII, but the Doha Round is the first to focus on helping developing countries join the global marketplace, in hopes of boosting their overall economies.81 Essentially, the goal of the Doha round trade talks is to “make it easier for goods and services to be bought and sold across national boarders.”82 To reach this goal, the Doha Round specifically focuses on tariffs (i.e. import taxes) placed on a variety of consumer and non- consumer products, such as cars and wheat.83 The Doha round trade talks also take into consideration that when decreasing or eliminating tariffs, restrictions may be implemented to promote fairness in the marketplace. Specifically, the Doha round trade talks discuss the use of subsidies to restrict countries from lowering taxes and regulatory barriers that affect the cross- border trade in services, such as banking and consulting, and negotiating new intellectual property rules on things such as drugs and cop- yrighted works.”84 The Doha Round negotiators represent all WTO members, where about two-thirds of the members consist of developing nations.85 These negotiators have made little to no progress over the past few years because trade officials negotiated under the single premise that “nothing is agreed until everything is agreed,” resulting in frequent deadlocks.86 ii. Bali Ministerial Conference The Bali Ministerial conference, emanating out of the Doha round trade talks, occurred in December 2013.87 At first glance, the talks seemed promising because the Trade Facilitation Agreement

80 . Doha Round Trade Talks - Explainer, THE GUARDIAN, http://www.theguardian.com/global-development/2012/sep/03/doha-round-trade-talks- explainer (last visited Mar. 29, 2015). 81 . Id. 82 . Id. 83 . Id. 84 . Id. 85 . Id. EU, US, China, and India tend to dominate the talks. 86 . Doha Round Trade Talks, supra note 80. Doha round was set to conclude in Geneva in July 2008 but after ten days of talks, negotiations broke down over a dispute between the U.S. and India, in regards to rules governing trade in agricultural goods. Id. 87 . Id.

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(TFA), a trade deal that would be a first for the WTO since its creation, was set to pass.88 The Trade Facilitation Agreement mostly benefitted developing countries because it created roughly twenty- one million jobs and boosted developing countries’ GDP by $523 billion, without cutting tariffs.89 However, just before ratification, the trade talks fell through, and India withdrew its support.90 This WTO trade negotiation failure further supports the increasingly regarded notion that the WTO is a divided forum that cannot successfully advance.91 Multi-polarity has caused the WTO to fail but a return to capitalism, through agreements like TTIP, provide the WTO a lifeline. The Partnership allows states to define their own ad- vantageous gains from trade in a balanced, negotiated manner that benefits all parties.92 In turn, countries keenest to promote trade will reap the positive effects and tangible outcomes of the free trade agreements.93 Analysis A. Factors Affecting TTIP’s Implementation The delay in TTIP negotiations has largely been due political changes in leadership on both sides of the Atlantic Ocean. Since TTIP negotiations began in 2013, all key leadership positions in the EU have been filled by new representation and some time is required

88 . Bailing out From Bali, THE ECONOMIST (Aug. 9, 2014), http://www.economist.com/news/finance-and-economics/21611088-indias-scuppering- latest-trade-talks-leaves-no-one-better-bailing-out. The Trade Facilitation Agreement is currently the only deal that has been concluded and awaits ratification by two-thirds of the WTO members. Douglas Lippoldt, Progress on Trade in 2015, HSBC (Mar. 2, 2015), http://www.hsbc.com/news-and-insight/2015/progress-on-trade-in-2015. 89 . Bailing out From Bali, supra note 88. 90 . Id. 91 . Id. 92 . Wong, supra note 73. 93 . Bailing out From Bali, supra note 88.

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TTIP: A Free Trade Agreement Vol. IV, No. I to adapt to TTIP and its negotiation process.94 Although former Trade Commissioner Karel De Gucht, European Council President Herman Van Rompuy, European Commission President José Manuel Barroso, and High Representative Catherine Ashton unanimously supported and promoted TTIP,95 it may be too soon to express unan- imous consent in support of the Partnership under the new leadership. Moreover, by the time the European leadership is comfortable in its new role, the U.S. political landscape will be focusing on the 2016 Presidential campaign. The recent midterm elections in the U.S., in which the Republican Party took over majority-rule in both chambers of Congress, clearly affected TTIP’s negotiations because the re- election process focused mainly on domestic concerns and not on international matters such as TTIP. Despite the effects of political adjustment, negotiations are likely to swiftly resume in 2015. Both the U.S. and the EU, consistently acknowledge that trade is an important and a relevant factor in the global economy and an agreement like TTIP can only advance economic growth. i. The European Union Demonstrates its Commitment to TTIP The EU proved its dedication to the negotiations by placing top trade experts at the forefront of the discussions and negotiations. The EU has permanently placed Ignacio Garcia Bercero, Director in the Directorate General for Trade in the EU Commission, Director Gen- eral Jean Luc Demarty, and other key officials presiding in the working groups in charge of conducting TTIP negotiations on behalf of the EU.96 ii. The United States Demonstrates its Commitment to TTIP The U.S. has labeled 2015 as a “fresh start” for TTIP talks under the new leadership of the European Commission.97 To prove that in-

94 . Jean De Ruyt, Major Changing of the Guard at European Commission, LAW 360 (2014), http://www.law360.com/articles/562195/major-changing-of-the-guard-at- european-commission. 95 . Id. 96 . Id. 97 . Alex Lawson, International Trade Developments to Watch in 2015, LAW 360 (Jan. 2, 2015, 1:45 PM), http://www.law360.com/articles/605633/international-trade- developments-to-watch-in-2015.

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2015-2016 UB Journal of International Law ternational trade and corresponding negotiations are at the forefront of its agenda, the White House and Congress reinstated the Trade Promotion Authority (TPA), colloquially known as fast-track negotiating authority.98 TPA allows Congress to “craft a blueprint for all U.S. trade agreements in exchange for holding amendment-free votes on those pacts once they are completed by the White House.”99 To further assist international organizations, like the WTO, the U.S. is paying close attention to smaller sectoral-agreements, like those aimed at cutting tariffs on environmental goods and liberalizing trade in services.100 Furthermore, Russian sanctions, enforced due to recent and on- going turmoil in the Ukraine, have influenced trade talks because investors and exporters are bracing for the newly passed Ukraine Free- dom Support Act of 2014.101 Russia’s invasion of the Ukraine places an unwanted risk on the trans-Atlantic alliance between the U.S. and the EU. However, being parties to the TTIP negotiations strengthens the U.S.-EU relationship and reinforces the united front that the U.S. and the EU have maintained throughout the Ukraine crisis.102 TTIP highlights the virtues of the Western model and sends a powerful sig- nal to Russian President Vladimir Putin, and other authoritarian regimes that the U.S. and the EU remain as unified as they ever were.103 This type of connectivity promotes prosperity for democratic principles and international stability.104 iii. TTIP Timeline and Economic Effects TTIP would help the EU economies bounce back from the global recession. A study conducted at the European Commission suggested TTIP could add roughly $142 billion to the EU economy and roughly $112 billion to the U.S. economy.105 In terms of GDP, this is equiva-

98 . Id. 99 . Id. 100 . Id. 101 . Id. 102 . Congressional Hearing, supra note 66 (statement of Congressman Keating, Minority Ranking Member). 103 . Id 104 . Id. 105 . Trading Places, THE TIMES (LONDON) (Jan. 15, 2015), https://www.thetimes.co.uk/tto/opinion/leaders/article4323540.html.

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TTIP: A Free Trade Agreement Vol. IV, No. I lent to adding 0.5 percent to Europe’s GDP and 0.4 percent to Ameri- ca’s GDP.106 The Partnership will provide Europe with the economic boost it needs because, by collaborating with the U.S. on a trade deal that grants market freedom and guarantees fair and legal procedures when transferring goods, European businesses will have more opportunity to export goods at a much lower cost. EU Trade Commission- er, Cecilia Malmström, reiterated how important passing TTIP sooner rather than later is for Europe when she explained that an ideal TTIP agreement eliminates duties on the vast majority of goods as soon as TTIP becomes good law.107 B. Benefits of WTO Change in Leadership In 2013, Roberto Azevedo assumed the position of Director General of the WTO.108 When Azevedo accepted his role as Director General, he was aware the WTO was in need of some adjustments. Azevedo and his team must find a way to make the WTO stay relevant. The WTO can do this by advancing a multilateral agenda (i.e. Doha Development Round), focusing on trading nations and not parties to partnerships, and achieving a breakthrough in plurilateral negotiations that have WTO focus, such as the Trade in Services Agreement (TISA) and the Information Technology Agreement (ITA).109 In addition, the WTO provides beneficial and necessary technical assistance to least developed countries (LDCs) as well as the Aid-for-Trade program, both of which have been important to many WTO members and are likely to continue to support the world’s least developed economies.110 New leadership at the WTO also affords the organization a chance to redistribute its focus in an area where it has a proven success record: dispute resolution.

C. Reviving the WTO vis-à-vis TTIP The WTO is at a stalemate. The current Doha Development Agenda (DDA) has failed to bring about innovative ideas to generate

106 . Id. 107 . Lawson, supra note 17. 108 . Terence Stewart, Some Thoughts as New WTO Team Takes the Helm, LAW 360 (Sept. 5, 2013). 109 . Id. 110 . Id.

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2015-2016 UB Journal of International Law new avenues for rule making in areas such as agriculture, investment, competition policy, and origin rules.111 The creation of TTIP would fill the gap as rule-maker and allow the WTO to narrow its focus and excel at dispute settlement. i. WTO and Dispute Settlement WTO dispute settlement has compulsory jurisdiction over the settlement of trade disputes that occur among WTO members.112 For an international organization to implement rebuttable multinational trade agreements and ascertain rule of law due to an effective dispute, settlement mechanism is an important accomplishment within the field of international trade. In less than twenty years, more than 500 dispute cases have been filed with the WTO Dispute Settlement Body and Panels and about 300 cases have been decided by the Appellate Body.113 Because the WTO relies on legal rules to resolve trade disputes, members cannot resort to economic and political power.114 By evaluating the legitimacy of the legal claims, parties to the dispute prevail not on the superior bargaining power in terms of size and influence, but on the merits of the case.115 Most members continue to use the WTO dispute system and generally comply with its adverse rulings.116 This system presents an advantage to developing nations that lack bargaining power with larger trade entities, such as the United States and the European Union, and institutes stability and predictability in international trade.117 A preferential free trade agreement, like the Partnership, can provide trade rules in areas where the WTO has failed.118 ii. WTO’s New Role as Coordinator Instead of acting as negotiator, the WTO must take on the role of coordinator when governing the international trading system. The WTO achieves this role by monitoring not only TTIP’s activities but

111 . Matsushita, supra note 67. 112 . Id. 113 . Id. 114 . Id. 115 . Id. 116 . Some Thoughts as New WTO Team Takes the Helm, supra note 108. 117 . Matsushita, supra note 67. 118 . Id.

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TTIP: A Free Trade Agreement Vol. IV, No. I also all other relevant and pertinent free trade agreements, like TTIP’s counterpart in Asia. The WTO can coordinate the activities of the participating members to the free trade agreements and administer advice, perhaps in the form of advisory opinions and reports, thus en- suring the success of these agreements through a “soft law” approach. Fortunately, the WTO already has a mechanism in place to function as coordinator. The Trade Policy Review Mechanism (TPRM) is a mechanism incorporated in the WTO to collect and distribute data with the intent of forming recommendations for WTO members to improve their trade systems and achieve greater transparency by understanding the trade policies and practices of other members.119 This notion is formally incorporated in Annex 3 of the Marrakesh Agreement.120 The Trade Policy Review Body (TPRB) was created under the TPRM to publish non-binding reports and recommendations that may not be used for dispute settlement procedures.121 Spe- cifically, part G of the Marrakesh Agreement, entitled “Overview of Development in the International Trading Environment,” requires the TPRB to generate “an annual overview of developments in the international trading environment that are having an impact on the multilateral trading system.”122 Conclusively, to maximize the success of both TTIP and the WTO, the TPRM can substitute multilateral agreements for bilateral agreements and promote compatibility and cooperation between the U.S. and the EU, both WTO members, as the TPRB oversees the rule making process in its role as coordinator for the WTO. D. Significance of Reducing Non-tariff Barriers to Trade The Partnership allows for a significant reduction in non-tariff barriers to trade (NTBs) between the U.S. and the EU. Under TTIP,

119 . Marrakesh Agreement Establishing the World Trade Organization, art. 1 1869 U.N.T.S. 379 [hereinafter TPRM]. 120 . Id. The Marrakesh Agreement defines the scope, functions and structure of the WTO and provides a comprehensive set of rules designed to make it easier to compete in today’s global marketplace. All WTO members are parties to this agreement. U.S. Dep’t of Commerce, Marrakesh Agreement: Establishing the World Trade Organization, TCC, http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/WTO_Marrakesh_gui de.asp (last visited Mar. 29, 2015). 121 . Matsushita, supra note 67. 122 . TPRM, supra note 119.

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2015-2016 UB Journal of International Law aligning domestic standards, cutting costs imposed by bureaucracy and regulations, and liberalizing trade in services and public pro- curement will reduce NTBs.123 Early reports of the negotiations indicate that the proposal is ambitious. The mandate seeks to eliminate 25% of NTB costs and 100% of tariffs between the United States and the European Union as well as achieve a 10% reduction in trade costs from NTBs and a removal of 98% of tariffs.124 Nevertheless, the reduction of NTBs with regulatory modification, under TTIP, will benefit the U.S. and EU economies by increasing job opportunities for both as trade moves more freely. E. TTIP’s Effects on Third Parties and Third Party Nations i. Advantages TTIP is able to address many of the trade imbalances that have affected trade relationships amongst WTO members. For instance, a large trade deficit between the U.S. and the EU is in part due to the WTO’s differential treatment between direct and indirect taxes.125 The current practice allows the EU to rebate taxes, which have value added taxes (VATs) of fifteen to twenty-seven percent, on goods ex- ported to the U.S. and assess these taxes at the border on imports.126 In turn, the U.S. does not have remedies for the large subsidies provided by the EU on exports because the U.S. has no federal indirect tax system and the rebate associated with indirect taxes on exports has been excluded by the GATT, as well as from the WTO subsidy disciplines.127 Additionally, because U.S. exporters face large taxes on importation,128 many businesses cannot sell within the market they wish to profit in. The Partnership can eliminate these differential treatments. By removing penalization in trade, TTIP will add mil- lions of manufacturing and agriculture jobs for both the U.S. and the

123 . Reid Whitten, The Race for Riches in US-EU Trade Begins, LAW 360 (Apr.18, 2013, 5:09 PM), http://www.law360.com/articles/433752/the-race-for-riches-in-us-eu-trade- begins. 124 . Id. 125 . Stewart, supra note 49. 126 . Id. 127 . Id. 128 . Id.

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EU.129 Even though the Partnership is specifically tailored to the trading relationship between the U.S. and the EU, TTIP will have a positive ripple effect on third party nations, like other WTO members, due to undeniable globalization at the international trade level. ii. Disadvantages Because TTIP is a partnership between the U.S. and the EU, the majority of WTO members are not included. With most of the developing world shut out, critics worry these countries will be denied a voice during negotiations.130 Additionally, with the exception of China, all BRICS countries−India, Brazil, and South Africa−have not been invited to participate in TTIP’s counterpart – TPP.131 However, if the WTO is able to reignite enthusiasm for its global free trade talks then lesser-developed countries have an opportunity to have a seat at the free trade expansion table. There are also critics who fear that TTIP negotiations no longer address protectionism but protection.132 Critics define protection as “promoting the interests of transnational capital by downgrading the defense of human health, the natural world, labor rights, and the poor and vulnerable from predatory corporate practices.”133 As a result, critics argue that this new state of “post-democracy” leaves the electoral and parliamentary system uninhabited by political power.134 This critique lacks authority because the same critics define protectionism as the idea that free trade is promoted by removing trade tariffs,135 which is exactly what TTIP seeks to provide for the U.S. and the EU to reach its goal of liberalizing trade successfully.

129 . Id.

130. Barrie McKenna, Sweeping Megaregional Deals Leaving Developing World Behind, THE GLOBE AND MAIL (Feb. 8, 2015), http://www.theglobeandmail.com/report-on- business/sweeping-megaregional-trade-deals-are-leaving-developing-world- behind/article22853075/. 131 . Id. 132 . George Monbiot, The TTIP Trade Deal Will Throw Equality Before the Law on the Corporate Bonfire, THE GUARDIAN (Jan. 13, 2015, 3:46 AM), http://www.theguardian.com/commentisfree/2015/jan/13/ttip-trade-deal-transatlantic- trade-investment-treaty. 133 . Id. 134 . Id. 135 . Id.

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F. Secrecy of TTIP negotiations The Partnership is challenged politically by an increasing amount of interest groups, nongovernmental organizations, a substantial part of the public opinion, and politicians in countries within the EU.136 Understandably, these various parties try to gain and request influence in the TTIP negotiations. To mitigate these concerns, key U.S. and EU representatives continuously release documents demon- strating transparency during the TTIP negotiations. i. Significant Actions Taken by the European Union to Promote TTIP In late November 2014, EU Trade Commissioner Cecilia Malm- ström circulated transparency proposals in an effort to give all Euro- pean Parliament members access to important negotiating documents.137 To incorporate civic engagement in Partnership negotiations, Commissioner Malmström made various documents available on the European Commission Directorate General Trade website.138 A public list of relevant TTIP documents shared between European Parliament and the European Council are published on a regular basis as well as a list indicating who is meeting with political leaders and senior officials throughout the course of the negotiations.139 In early January 2015, Malmström released eight TTIP negotiating texts including position papers representing the EU’s positions on various areas, such as competition, food safety, and animal and plant health.140 These fact sheets are written in laymen’s terms so public stakeholders can easily comprehend the complex legal documents.141 With the release of new and additional documents, Malmström hopes that the increase in transparency will also transition into an increase

136 . De Ruyt, supra note 94. 137 . Alex Lawson, EU Approves Proposals to Open Up Trade Talks with US, LAW 360 (Nov. 25, 2014), http://www.law360.com/articles/599332/eu-approves-proposals-to- open-up-trade-talks-with-us. 138 . Id. Website includes minutes with brief summary of meeting agenda and list of participants in attendance. 139 . Id. 140 . Alex Lawson, EU Discloses Litany of Secret Texts in U.S. Trade Talks, LAW 360 (Jan. 7, 2015), http://www.law360.com/articles/609180/eu-discloses-litany-of-secret-texts- in-us-trade-talks. 141 . Id.

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TTIP: A Free Trade Agreement Vol. IV, No. I in public support for the massive trade deal.142 Alan Wolff, Senior Counsel at McKenna Long & Alridge LLP stated, “[t]he attempt is to approach the drafting of TTIP as a world standard, or at least a standard that each can apply in further negotiations each has with others.”143 ii. Significant Actions Taken by the United States to Promote TTIP U.S. Trade Representative Michael Froman indicated promotion of transparency of TTIP and its negotiations for the U.S. when USTR released a “plain English” fact sheet that relayed the Obama administration’s interest and effort to cooperate with the newly Republican controlled Congress to pass TTIP and encourage public conversation regarding the negotiation process.144 Froman stated:

We are always looking for new ways to engage the public and to seek views that will help inform and guide our trade policy, and enhancing transparency will remain a priority, consistent with the ability to deliver on our ultimate mission, which is to deliver agreements that achieve the maximum possible benefit for the American people…that’s our focus.145 USTR has also enhanced transparency by providing congressional committees with a preview of every proposal prior to the proposal being negotiated during committee meetings.146 Throughout 2015, Malmström and Froman have met multiple times to collaborate and advance TTIP negotiations and mitigate points of contention to bring ratification of this important trade deal to the forefront.147

142 . Id. 143 . Id. 144 . Joe Van Acker, USTR Hits Back at Allegations of Secrecy in Trade Talks, LAW 360 (Jan. 12, 2015), http://www.law360.com/articles/610344/ustr-hits-back-at-allegations- of-secrecy-in-trade-talks. 145 . Id. 146 . Id. 147 . Alex Lawson, US, EU Trade Leaders Prepare for New Round of TTIP Talks, LAW 360 (Dec. 9, 2014), http://www.law360.com/articles/602881/us-eu-trade-leaders-prepare- for-new-round-of-ttip-talks.

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Conclusion TTIP promotes true reciprocity in international trade and must be implemented for two main reasons. First, by opening up both U.S. and EU markets, consumers collectively have access to a greater spectrum of goods. Critics fear that the Partnership puts local businesses at risk and favors privatization of business, a neo-liberalist idea. However, when consumers have more choices as to which good to purchase, a healthy economy exists. TTIP negotiators recognize the importance of competitive market advantage and believe in the need for a modified and uniform regulatory system between the U.S. and the EU. Second, the Partnership allows the WTO to redistribute its focus by entertaining a “soft law” approach and capitalize on its strength: dispute resolution. TTIP is the future for international trade, and negotiations must continue to ensure the agreement passes and economic success for the global economy is secured.

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A Greek Exit from the Eurozone Vol. IV, No. I

Is a Grexit—A Greek Exit from the Eurozone—the Solution?

Ruby Devine∗

“Greece is in its own Great Depression. But unlike the United States, it won’t be able to get back on its feet as quickly[.]”1 For over five years now, Greece has been doddering on the edge of disaster. Receiving its third bailout in five years, Greece is now faced with the task of implementing strict austerity controls that the Greek people have unequivocally rejected. If Greece were to default, one consequence is a Grexit, a Greek exit from the European Union, which many fear would compromise the delicate European system.2 On Au- gust 20, 2015, Greece narrowly avoided default on its loan to the Eu- ropean Central Bank (ECB), and made a crucial payment to its creditors after receiving new aid from other Eurozone countries.3 Unfortunately, most of the new 86 billion euro (approximately 96 billion dollars) package will largely be used to repay the already existing crippling debt, rather than assist in rebuilding the struggling Greek economy.4 Additionally, austerity measures the bailout package required are exactly what current Prime Minister Alexis Tsipras of the left-wing Syriza party had promised to get rid of as part of his platform earlier this year. The conditional deal has already hit rough waters, as creditors have delayed the second installment of two bil-

∗ Ruby Devine will graduate from the University of Baltimore School of Law in Spring 2016, where she participated in the Philip C. Jessup International Law Moot Court Competition in 2015 and will work in the Human Trafficking Project Clinic in 2016. 1 . Jacob Funkirkegaard, an economist at the Peterson Institute for International Econom- ics in Washington. Liz Alderman, et al., Is Greece Worse Off Than The U.S. During the Great Depression?, N.Y. Tɪᴍᴇs (Jul. 9, 2015), http://www.nytimes.com/interactive/2015/07/09/business/international/is-greece- worse-off-than-the-us-during-the-great-depression.html 2 . Tom DiChristopher, Father of Grexit: ‘Diaster’ for euro zone if Greece Leaves, CNBC (Jun. 25, 2015, 11:48 AM), http://www.cnbc.com/2015/06/25/father-of-grexit- disaster-for-euro-zone-if-greece-leaves.html 3 . Greece’s Debt Crisis Explained, N.Y. Tɪᴍᴇs, Nov. 9, 2015, http://www.nytimes.com/interactive/2015/bdusiness/international/greece-debt-crisis- euro.html?_r=0 4 . Jon Henley, Greek Bailout: Alexis Tsipras steps down to trigger new elections, Tʜᴇ Gᴜᴀʀᴅɪᴀɴ (Aug. 20, 2015), http://www.theguardian.com/world/2015/aug/20/greek- bailout-alexis-tsipras-call-snap-elections

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2015-2016 UB Journal of International Law lion euros.5 If Greece continues to fail to meet its targets, this can have negative implications down the line.6

Background The euro was introduced in 1999, binding nineteen of the twenty-eight countries in the European Union (EU) to one currency that is overseen by the ECB.7 Such matters as tax and budget policy questions are left to the governments of each country obligated only to its voters and taxpayers.8 Some economists argue that the Euro- zone’s lack of a more federal-style method of transferring money among its members (similar to the United States federal government and the requisite states) is part of a larger issue in the EU.9 So how did Greece get itself in such a mess? Following the global financial markets crisis of 2008, Greece announced in October of the same year that it had been understating its deficit for years, leading to uncertainty in the soundness of Greek finances.10 This prevent- ed Greece from borrowing in the financial markets, and by the spring of 2010, Greece was almost bankrupt. In an effort to subvert another financial crisis, the International Monetary Fund (IMF), the ECB, and the European Commission—Greece’s three largest lenders—issued the first of two international bailouts for Greece, totaling almost 240 billion euros or $264 billion at current exchange rates.11 Despite now having received three bailouts, Greece still has not been able to stabi- lize. The Greek economy has shrunk by a quarter in the last five years, and its unemployment rate is over 25%.12 Most staggering of

5 . Niki Kitsantonis, Creditors Withhold 2 Billion Euro Bailout From Greece, N. Y. Tɪᴍᴇs (Nov. 9, 2015), http://www.nytimes.com/2015/11/10/business/international/greece-bailout- eurozone.html?mtrref=query.nytimes.com 6 . Id. 7 . Greece’s Debt Crisis Explained, supra note 3. 8 . Id. 9 . Id. 10 . Id. 11 . Id. 12 . Id.

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A Greek Exit from the Eurozone Vol. IV, No. I all is that Greek debt exceeds 180% of its Gross Domestic Product (GDP).13 There are many who blame the imposed austerity measures for the country’s persisting plight. This is how the leftist Syriza party rose to power this year, with the promise to negotiate the debt and eliminate austerity measures. For example, if strict limits are placed on how much money can be withdrawn from banks, people will inev- itably buy fewer expensive items. According to the Hellenic Statisti- cal Authority, the number of cars and motorbikes sold in July 2015 decreased 24% and 39% respectively compared to the same month in 2014.14 However, these same capital controls are important measures to stop euros from flowing out of Greek banks to oversea banks or to be hoarded by worried Greeks. On the other hand, the country’s frus- trated creditors blame the Greek government in failing to deliver the economic overhauls as promised under the bailout agreements.15 To Bailout (with Austerity) or Grexit? During the height of the debt crisis a few years ago, many experts worried that a Grexit would be a disaster.16 This notion is focused on the damage it would cause to the European integration process; economist Willem Buiter17 pointed out that a Grexit “would be the first time since 1951 that a treaty-based integration process” is re- versed.18 A default on Greece’s part could be bad for indebted pe- ripheral economies, creating a “who’s next” mentality.19 But now there are proponents that argue it would not be so terrible for the global economy, as Europe has now put in safeguards in order to minimize the effects on other countries on the EU currency.20 An exit would allow for Greece to regain financial autonomy and the EU would be better off without a country always requiring assistance. But many European political leaders see a united Europe as a necessi-

13 . Helena Smith, New Alexis Tsipras-leg Greek Government takes power, Tʜᴇ Gᴜᴀʀᴅɪᴀɴ (Sept. 23, 2015), http://www.theguardian.com/world/2015/sep/23/new-alexis-tsipras- led-greek-government-takes-power 14 . Greece’s Debt Crisis Explained, supra note 3. 15 . Id. 16 . DiChristopher, supra note 2. 17 . Mr. Buiter is responsible for coining the phrase “grexit.” DiChristopher, supra note 2. 18 . DiChristopher, supra note 2. 19 . Id. 20 . Greece’s Debt Crisis Explained, supra note 3.

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2015-2016 UB Journal of International Law ty. It is especially pertinent to note here that the Eurozone has no exit strategy, forced or voluntary, for members to leave. Therefore, an exit from the euro currency as well as the EU would involve navigating a legal quagmire that no country has yet to venture.21 Is Recapitalization the Answer? Reuters columnist Hugo Dixon calls Greece’s banks the country’s “Archilles Heel.”22 Dixon argues that a direct recapitalization by the Eurozone bailout fund, the European Stability Mechanism (ESM),23 would sever the link between the government and the country’s leaders.24 This would allow Greek banks to be recapitalized, while Greece’s government would not have an additional 25 billion euros in loans.25 Not to mention, this would remove the government from any management of the banks, as well as cut back on austerity measures. Greece has a strong case for the ESM, which was designed as a last resort option for failing banks in a country unable to resolve the problem on its own.26 The Greek Citizens have Spoken Although ECB saved Greece by loaning it additional money to make its important payments to creditors on August 20th, many Greeks are not happy with this so-called saving grace. Now the party is split, with twenty-five Syriza lawmakers announcing the formation of a new party, Popular Unity, which intends to remain loyal to their pre-election promises.27 Critics wish to do away with the bailout alto-

21 . Greece’s Debt Crisis Explained, supra note 3. 22 . Hugo Dixon, How to Fix Greece’s Banks, Rᴇᴜᴛᴇʀs (Aug. 10, 2015), http://blogs.reuters.com/hugo-dixon/2015/08/10/how-to-fix-greeces-banks/ 23 . The European Stability Mechanism is a fund set up as a crisis resolution mechanism for countries of the euro area. Eᴜʀᴏᴘᴇᴀɴ Sᴛᴀʙɪʟɪᴛʏ Mᴇᴄʜᴀɴɪsᴍ, http://www.esm.europa.eu/ (last visited Nov. 20, 2015). 24 . Dixon, supra note 22. 25 . Dixon, supra note 22. 26 . Euro zone countries agree direct bank recapitalization framework, Rᴇᴜᴛᴇʀ (Jun. 11, 2014), http://www.reuters.com/article/2014/06/11/us-eurozone-banks-recapitalisation- idUSKBN0EM1IM20140611 27 . What Alexis Tsipra’s Announcement Means for Greece, N.Y. Tɪᴍᴇs (Aug. 21, 2015), http://www.nytimes.com/2015/08/22/world/europe/what-alexis-tsiprass- announcement-means-for- greece.html?action=click&contentCollection=Europe&module=RelatedCoverage® ion=Marginalia&pgtype=article

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A Greek Exit from the Eurozone Vol. IV, No. I gether, arguing that the budget savings and reforms Mr. Tsipras agreed to for the bailout are exactly what they had sought to eradicate when they came to power with Syriza in January.28 Specifically, in exchange for the eighty-six billion euro bailout package, Mr. Tsipras agreed to put in place strict spending limits, new tax increases, and changes in the way Greece handles its economy.29 Due to the internal dissent over the new bailout package, Mr. Tsipras took a gamble by stepping down in order to regain power with a new government, knowing that there would not be a strong enough opposing party to takeover.30 This move has been characterized as Mr. Tsipras consoli- dating his power and solidifying the new bailout plan by having the citizens decide whether or not to re-mandate the Syriza party.31 Such political uncertainty also takes its toll on markets; this is the fifth national election in six years, and the third time this year alone that Greeks voted.32 However, this bailout money could benefit the Greek economy in the short term by alleviating fears that the country would default on its debt and be kicked out of the Eurozone. Investors will be less likely to risk money on a Greece that will no longer be a member of the euro currency.33 Additionally, Greek citizens who in fear pulled their money out of banks may be comfortable to re-deposit cash again. There are some tentative signs of pressure easing on Greek banks. For example, the Bank of Greece, the country’s central bank, requested less emergency funding because the lenders no longer require as much.34

28 . Greece Sees Lighter Recession Despite Recent Crisis, Assᴏᴄɪᴀᴛᴇᴅ Pʀᴇss (Nov. 20, 2015, 9:38 AM), http://hosted.ap.org/dynamic/stories/E/EU_GREECE_BAILOUT?SITE=AP&SECTIO N=HOME&TEMPLATE=DEFAULT&CTIME=2015-08-14-03-43-54 29 . What Alexis Tsipra’s Announcement Means for Greece, supra note 27. 30 . Greece’s constitutional laws are complicated, and allow for referendum votes if a opposing party can be formed and take over the parliament. Greece Sees Lighter Reces- sion Despite Recent Crisis, supra note 28. 31 . Greece’s Debt Crisis Explained, supra note 3 32 . Greece Sees Lighter Recession Despite Recent Crisis, supra note 28. 33 . Jack Ewing, Greece Makes Payment to European Central Bank Avoiding Default, N.Y. Tɪᴍᴇs (Aug. 20, 2015), http://www.nytimes.com/2015/08/21/business/international/greece-bailout- debt.html?_r=0 34 . Id.

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Long Road ahead for Greece Despite the bailout going through, Greece still has an arduous journey ahead to make good on all the promises it has made. The Greek government’s priority is “kick-starting” the “recession- plagued” economy that was harshly affected by the summer of 2015 closure of banks and capital controls.35 The focus will be on improv- ing the business landscape for small and medium companies, which they deem the “lifeblood of the Greek economy.”36 Unfortunately, addressing their domestic problems may be stalled if Greece is unable to pass the measures required under the conditional deal. Greek lawmakers recently approved legislation enacting some of the economic reforms requested by the country’s international creditors.37 These reforms include raising the retirement age, cutting pensions, liberalizing the energy market, opening up cosseted profes- sions, expanding a property tax that Greeks already oppose and push- ing forward a stalled program to privatize state assets.38 Approving these reforms allowed Greece to receive the first bailout installment, however, its creditors were only temporarily content, because as mentioned earlier, their second installment has been stalled. Each delay is crucial as it could have a snowball effect and disrupt the future schedule, including discussions on whether Greece will receive any debt relief.39 Additionally, another ten billion euro in bailout money is being withheld that would refill Greece’s cash-poor banks.40 So far, Greek officials have not released details over the deadlock in negotiations, but at least one issue is how much protection against foreclo- sure to give Greece’s indebted holders of home mortgages.41 Notwithstanding austerity measures, a united European Union, including Greece, is essential. A single currency in Europe allows for the free exchange of money in a region consisting a several smaller states. Creating a single, stable currency among many nations is clearly not an easy feat, and over time the member states have learned that closer economic and monetary cooperation was neces-

35 . Smith, supra note 13. 36 . Id. 37 . Greece’s Debt Crisis Explained, supra note 3 38 . Id. 39 . Id. 40 . Id. 41 . Id.

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A Greek Exit from the Eurozone Vol. IV, No. I sary for the market to grow and thrive together.42 Economist Vicky Pryce believes this is not the end of bailouts for Greece, and that a fourth will be required to restructure Greece’s debt.43 For now, a bailout seems the lesser of two hard choices for Greece, Europe, and the global economy.

42 . The euro, Tʜᴇ Eᴜʀᴏᴘᴇᴀɴ Cᴏᴍᴍ’ɴ, http://ec.europa.eu/economy_finance/euro/index_en.htm (last visited Nov. 20, 2015). 43 . Smith, supra note 13.

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South China Sea Takeover Vol. IV, No. I

South China Sea Takeover:

Destroying Fisheries and Creating Economic Dead-lands for Surrounding Coastal States

Aviana Cooper*

Introduction China’s rapid takeover of the South China Sea unequivocally goes against what the United Nations Convention on the Law of the Seas permits. China’s control has had, and will continue to have dis- paraging effects on neighboring countries in their shipment of supplies, food, and other materials. The reclamation of the island land- masses in dispute, the Spratly and Paracel islands, by China has grown about 50% since May 2015.1 Presently, China has built a 3,000 foot aircraft runway and reformed many of the coral reefs surrounding the islands into artificial islands for the “future” usage to place buildings and homes for future Chinese inhabitants.2 The United States fears that if progress is continued, these islands will be utilized for military purposes and ultimately create in- stability in one of the prime commercial shipping routes.3 If China ultimately gains complete control of the South China Sea, they will control all trade and untampered access to all resources within and surrounding those islands; devastating the livelihoods of neighboring States such as the Philippines, Malaysia, and Vietnam. The main issue of dispute here, however, is not territorial, but whether China has the right to stake claim to land in area deemed

* Aviana Cooper is a staff editor for the Journal of International Law. Ms. Cooper has a B.A. in Biology with minors in Psychology and Chemistry from the University of Mi- ami. Ms. Cooper is a Juris Doctorate candidate from the University of Baltimore School of Law for May 2017. 1 . Gordon Lubold, Pentagon Says China Has Stepped Up Land Reclamation in South China Sea, WALL ST. J (Aug. 20, 2015), http://www.wsj.com/articles/pentagon-says- china-has-stepped-up-land-reclamation-in-south-china-sea-1440120837 (“In less than two years, China has reclaimed 17 times more land than any other claimant has in the past 40 years—accounting for about 95% of all reclaimed land in the Spratlys, according to the report”). 2 . Id. 3 . Id.

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“high seas” as interpreted under the United Nations Convention on the Law of the Seas (UNCLOS).4 As it is stated in UNCLOS, areas considered high seas permit States free and untampered navigation, therefore the South China Sea, a high seas territory, is not permitted by the UNCLOS to be taken over by China.

What is UNCLOS? Until the 1970s, there have been many disputes regarding the misuse of waterways by the States.5 With an even greater concern over the harm being done to ocean habitats: depletion of resources and fish stock, pollution, and interjection of supply that would be utilized by countries nearby.6 Thus, the United Nations Convention on the Law of the Sea (UNCLOS) was created. UNCLOS governs all issues related to “law of the sea” and was created to maintain “peace, justice and progress for all peoples of the world.”7 The convention is to assist in establishing equitable international economic order, ensur- ing to consider interests of all countries: developing, land-locked and coastal.8 UNCLOS contributes “to the strengthening of peace, security, cooperation and friendly relations among all nations in conformity with the principles of justice and equal rights.”9 States are provided a twelve-mile radius of sea called territorial sea where they are permitted to enforce any law, utilize and regulate the use of any resource found.10 An extra twenty-four miles is further provided to allow regulation and policing of waters, provided for naval and coast guard ships.11 For States composed of small islands, such as the Philippines, there is a twelve-mile “zone” which is ex-

4 . South China Sea puts pressure on US to ratify UNCLOS, MARITIME TRADE INTELLIGENCE(Jul. 18, 2015), http://maritimeintel.com/south-china-sea-puts-pressure- on-us-to-ratify-unclos/. 5 . The United Nations Convention on the Law of the Sea (a historical perspective), OCEANS & L. OF THE SEAS (1998), http://www.un.org/depts/los/convention_agreements/convention_historical_perspectiv e.htm#Settlement of Disputes [hereinafter UN Convention]. 6 . Id. 7 . Preamble, United Nations Convention on the Law of the Sea Agreement Relating to the Implementation of Part XI of the Convention, http://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm. 8 . UN Convention, supra note 5. 9 . Id. 10 . Id. 11 . Id.

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South China Sea Takeover Vol. IV, No. I tended from a “line drawn joining the outermost points of the outermost islands of the group.”12 Considered archipelagic waters, this is where innocent passage of all ships from all States are permitted.13 In addition to the distance provided for territorial seas, under the exclusive economic zone (EEZ), coastal States are provided the right to “exploit, develop, manage, and conserve all resources” within an area extending two-hundred miles from its shore.14 UNCLOS effect on China’s presumption of the islands. The UNCLOS grants “rights to different maritime features”15 differentiating between rocks, which are above water but unable to sustain life, and “rocks and shoals underwater at high tide.”16 Alt- hough UNCLOS does not forbid States from creating their own islands, what is forbidden is what China is doing to these islands.17 China is attempting to “‘upgrade’” these islands and expand all rights granted to “real” islands by UNCLOS.18 It is, however, explicitly stated in Article 60, Section 8: “artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.”19 Similarly, as indicated under UNCLOS, there is an interest to ensure equality to all countries, in particularly those who are land- locked, therefore, “no country has sovereign right over the high seas.”20 In order for a country to seize a right to high seas, permission

12 . UN Convention, supra note 5. 13 . Id. 14 . Id. 15 . Jeff M. Smith, Let’s Be Real: The South China Sea Is a US-China Issue, THE DIPLOMAT (June 24, 2015), http://thediplomat.com/2015/06/lets-be-real-the-south- china-sea-is-a-us-china-issue/. 16 . Id. 17 . Id. 18 . Id. 19 . Part V Exclusive Economic Zone, United Nations Convention on the Law of the Sea Agreement Relating to the Implementation of Part XI of the Convention, http://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm [hereinafter Part V].

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2015-2016 UB Journal of International Law from the United Nations is required.21 However, China has not requested this permission, they are simply trying to seize the right by creating islands which would extend their EEZ to include this pas- sageway in the South China Sea and gain control of all resources. Nevertheless, Article 60, section 7 explains that “artificial islands . . . and the safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.”22 What China is attempting to do with these islands is in clear violation of the Convention and should not be permitted. However, Chi- na implores that because these islands fall within their EEZ, which, they claim, have held possession since 1947, they are not required to seek permission.23 Consequently, with China occupying these islands and reefs, the EEZ’s of several other countries such as the Philip- pines, Vietnam, and Malaysia are being taken, impeaching on their ability to partake in resources located in and around the islands.24 Impact U.S. ratification of UNCLOS would have on dispute UNCLOS is used for the mediation of territorial disputes between States. Because there is a discrepancy in the actual ownership of the islands between China, Vietnam and the Philippines, the UNCLOS can be used to determine the legitimacy of these claims and who is the rightful owner. The United States has, on several oc- casions sited their interest in maintaining usage of the South China Sea.25 Because the United States has such a great interest, ratifying

20. James Duglous Crickton, China’s Shameless Arrogance in South China Sea, OpEdNews.com (Aug. 22, 2015), http://www.opednews.com/articles/China-s- Shameless-Arroganc-by-James-Duglous-Cric-America_Arbitration_Dominance_Oil- 150822-623.html. 21 . Id. 22 . Part V Exclusive Economic Zone, supra note 19. 23 . Christopher Mirasola, Comment, Why the US Should Ratify UNCLOS: A View from the South and East China Seas, HARV. NAT’L SEC. J. (Mar. 15, 2015), http://harvardnsj.org/2015/03/why-the-us-should-ratify-unclos-a-view-from-the-south- and-east-china-seas/. 24 . Crickton, supra note 20, at 2. 25 . Bonnie S. Glaser, Armed Clash in the South China Sea Contingency Planning Memo- randum No. 14, COUNCIL ON FOREIGN RELATIONS (Apr. 2012) http://www.cfr.org/world/armed-clash-south-china-sea/p27883 (China is currently “developing capabilities that would put U.S. forces in the region at risk in a conflict, thus potentially denying access to the U.S. Navy in the western Pacific.”).

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South China Sea Takeover Vol. IV, No. I the UNCLOS would pose to be very beneficial to not only the U.S., but also the neighboring States that claim interests in the islands of the sea. Ratifying the UNCLOS by the U.S., with the other 166 States, would certainly prove to serve the nations interest in national security, economics, and environment. 26 Both the Bush Administration as well as the Obama Administration believe that it would be a disser- vice to not ratify UNCLOS and would disadvantage the nation as a whole, depriving it of needed resources, as well as economic and environmental interests.27 Those who oppose the ratification, several Republican Senators, are going off the belief that the problems of the UNCLOS presented during the Regan Administration still exist and that by joining the Convention, it will impose upon the sovereignty of the U.S.28 During the first draft completed in 1982, President Reagan opted not to sign the treaty due to language indicating that the “international seabed regime [would] gover[n] the mining of the seabed” which he believed would be “contrary to principles of free enterprise.”29 However, if one were to look closely, and as the Bush and Obama administration have explained, those “issues” that once presented a complication with the sovereignty of the nation, have been amended in 1994. For example, on the issue of mandated technology transfer, during the 1994 amendments, although the UNCLOS continues to encourage technology transfer and scientific knowledge to

26 . John B. Bellinger, III, Should the United States ratify the UN Law of the Sea?, COUNCIL ON FOREIGN RELATIONS (Nov. 11, 2014), http://www.cfr.org/treaties-and- agreements/should-united-states-ratify-un-law-sea/p31828 (Bellinger is an Adjunct Senior Fellow for International and National Security Law who acted as the legal adviser for the National Security Council for the Bush Administration). 27 . Bellinger III, supra note 26. (“Bush administration concluded after a careful inter- agency review that the Convention clearly serves U.S. national security, economic, and environmental interests. The Convention provides clear, treaty-based rights for U.S. ships and aircraft to travel through and over the territorial seas of other coastal states. This is why the U.S. Navy, with the largest fleet in the world, has long supported the treaty. In this time of shrinking defense budgets, the Navy wants clear legal rights to freedom of navigation when it cannot have more ships to assert these rights in practice.”) 28 . Bellinger III, supra 26. 29 . Daniel Hollis, United Nations Convention on Law of the Sea, 1982, ENCYCLOPEDIA OF EARTH (Feb. 26, 2013) http://www.eoearth.org/view/article/156775/ (profit-sharing provision of deep seabed mining).

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2015-2016 UB Journal of International Law other States, it no longer mandates that a State do so; this was one of the many issues the Reagan Administration had that was addressed.30 Under the current UNCLOS, it will allow the U.S. to protect their interests in the resources31 provided in the territorial seas as well as assist in limiting claim and protecting innocent passage.32 By protecting innocent passage and usage of the South China Sea, it will prevent China’s complete control of the area and ultimately protect neighboring States’ interest in their claimed territories while continuing to permit free travel of U.S. Naval ships innocent passage. Who is this really affecting? The dispute over control of the South China Sea could become a worldwide crisis. However, the people being affected by this presently are the neighboring States: Vietnam, the Philippines, Malaysia, Taiwan, and Brunei. Being one of the world’s largest commercial shipping routes with untapped resources such as oil and gas; if China were to gain control, their power would be unlimited. China would control any trade that would occur through those waters, denying access to fishing, access to gas and oil, as well as safe travel of other States’ military ships or aircraft. As discovered Paracels and Spratly islands have a great deal of natural resources.33 For years, the water surrounding these islands have been the premier location for fishing which has supplied food and livelihoods to the people in the neighboring States, especially the Philippines.34 August 2015, the Philippines called on the United States to assist in their fight against the Chinese Coast Guard who blockaded their ships which carry military personnel, food, and other supplies.35 The

30 . Scott G. Borgerson, The National Interest and the Law of the Sea. COUNCIL ON FOREIGN RELATIONS. (May 2009), http://www.cfr.org/oceans/national-interest-law- sea/p19156. 31 . Bellinger III, supra note 26 (“joining the Law of the Sea Convention would codify U.S. sovereignty over vast new oil and gas resources in the Arctic”). 32 . Bellinger III, supra note 26. 33 . O&A: South China Sea dispute, BBC (Apr. 17, 2015), http://www.bbc.com/news/world-asia-pacific-13748349. 34 . Id.

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1951 Mutual Defense Treaty, signed by both the U.S. and the Philip- pines, states that “an armed attack in the Pacific Area on either of the Parties would be dangerous to its own peace and safety . . .”36 Through this treaty, the U.S. agreed to assist the Philippines in times of armed attack. This, however, is not the first time the Philippines or another country has tried to take on China and retrieve their rightfully owned land. In 2012, there were claims, although unverified, that the Chinese navy interfered with two exploration operations by the Viet- namese, leading to anti-China protests in Vietnam.37 Again in May 2014, while China was introducing a drilling rig near the Paracel Is- lands, multiple collisions between the Chinese and Vietnamese ships occurred.38 Presently, the employment and livelihoods of the fisherman in the small village of Manilla in the Philippines have been completely altered.39 Many of the fisherman have had to find alternative modes of employment just to make ends meet because of China’s blockade of the Sea. In a more recent study, scientist indicated that not only are the fisherman losing their jobs due to the blockade, they may not have jobs in the future once the blockade ends due to the development by China.40 China, in creating these artificial islands, has completely ruined the coral reefs, which has consequently led to the death of many of the fish that would reside in this area, altering the entire ecosystem.

Conclusion Total reclamation of the islands will provide the groundwork for China to become the “ultimate military power.” Controlling one of

35. Jim Gomez, Philippines seeks US help to protect troops in disputed seas, YAHOO! NEWS (Aug. 26, 2015), http://news.yahoo.com/philippines-seeks-us-help-protect- troops-disputed-sea-100618900.html (“[To] help protect the transport of Filipino troops and supplies to Philippine-occupied reefs in the disputed South China Sea by deploying American patrol planes to discourage Chinese moves to block the resupply missions. The tense standoff at the shoal has lasted two years”). 36 . Glaser, supra note 25. 37 . O&A: South China Sea dispute, supra note 33. 38 . Id. 39 . Raul Dancel, Death of a fishing village, THE STRAITS TIMES (Aug. 4, 2015), http://www.straitstimes.com/asia/se-asia/death-of-a-fishing-village. 40 . Yasmin Tayag, China’s Artificial Islands in the South China Sea Are Killing Ocean Life, INVERSE (Sept. 25, 2015), https://www.inverse.com/article/6465-china-s- artificial-islands-in-the-south-china-sea-are-killing-biodiversity.

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2015-2016 UB Journal of International Law the world’s largest trade routes will not only permit China to be in complete control of all and any trade done through the South China Sea, preventing hundreds of nations from having easy access to this route, it will also permit China to continue to control the oil, gas, and fishing resulting in China becoming stronger economically. Solving this problem could pose to be a very difficult and timely issue, however the U.S. must intervene and must ratify the UNCLOS. Ratifying the UNCLOS will allow them a permanent “seat at the table” when discussing the issues such as EEZ rights.41 Not only would this permit them a seat, it would also bolster their position on uni- formity within the seas.42 Upon ratifying the treaty, the U.S. should also mediate “an information sharing center” and “a joint fisheries committee”43 to assist with preventing the blockades China has implemented over the Philippines, in turn assisting in returning food and employment to the citizens of the boarding States.

41 . Glaser, supra note 25. 42 . Id. 43 . Id.

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