Fall 2002 Vol

THE RECORD

OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK Fall 2002 Vol. 57, No. 4

THE LEGALITY AND CONSTITUTIONALITY OF THE PRESIDENT’S AUTHORITY TO INITIATE AN INVASION OF IRAQ

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 371 THE RECORD

Fall 2002 Vol. 57, No. 4

Contents

OF NOTE 373

THE LEGALITY AND CONSTITUTIONALITY OF THE PRESIDENT’S 378 AUTHORITY TO INITIATE AN INVASION OF IRAQ by The Committee on International Security Affairs

INTERIM REPORT ON THE RULE OF LAW, DEMOCRACY AND THE 397 PROTECTION OF FUNDAMENTAL RIGHTS IN HONG KONG by The Committee on International Human Rights

NEW YORK CITY AND THE UNITED NATIONS: 431 TOWARD A RENEWED RELATIONSHIP by The Special Committee on the United Nations

THE VIENNA CONVENTION ON THE ASSIGNMENT OF RECEIVABLES 454 IN INTERNATIONAL TRADE by The Committee on Foreign and Comparative Law

ON THE PATH TO INCLUSION 469 by John D. Feerick

REPORT ON THE BUENOS AIRES CONFERENCE ON PRO BONO 479 AND ACCESS TO JUSTICE by The Committee on Inter-American Affairs

A SELECTIVE BIBLIOGRAPHY: LEGAL DICTIONARIES IN ENGLISH 489 AND ONE OR MORE OTHER LANGUAGES by The Committee on Foreign and Comparative Law

INDEX 511

THE RECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK is published four times a year , Winter, Spring, Summer and Fall, by The Association of the Bar of the City of New York, 42 West 44th Street, New York, NY 10036-6689. Available by subscription for $60 per volume. For information call (212) 382-6695. Periodicals postage paid at New York, NY and additional mailing offices. USPS number: 012-432/ISSN: 0004-5837. Post master: Send address changes to THE RECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, 42 West 44th Street, New York, NY 10036-6689. THE RECORD is printed on paper which meets the specifications of American National Standard ANSI Z39.49-1984, Permanence of Paper for Printed Library Materials. Copyright © 2002 TheT H AssociationE R E C ofO Rthe D Bar of the City of New York. All rights reserved. 372 EDITORIAL BOARD

E. LEO MILONAS ALAN ROTHSTEIN President General Counsel

BARBARA BERGER OPOTOWSKY ANDREW J. MARTIN Executive Director Director, Communications

LAURIE BERKE-WEISS MARK WOLKENFELD Chair, Executive Committee Editor

HOW TO REACH THE ASSOCIATION

MAIN PHONE NUMBER: COMMITTEE MEMBERSHIP (212) 382-6600 Stephanie Glazer (212) 382-6664 WORLD WIDE WEB ADDRESS: [email protected] http://www.abcny.org COMMUNICATIONS PRESIDENT Andrew J. Martin E. Leo Milonas (212) 382-6713 (212) 382-6700 [email protected] [email protected] CONTINUING LEGAL EDUCATION EXECUTIVE DIRECTOR Michelle Schwartz-Clement (212) 382-6606 Barbara Berger Opotowsky [email protected] (212) 382-6620 [email protected] LAWYER ASSISTANCE PROGRAM Eileen Travis GENERAL COUNSEL (212) 382-5787 Alan Rothstein [email protected] (212) 382-6623 [email protected] LEGAL REFERRAL SERVICE Allen J. Charne ADMINISTRATIVE SERVICES (212) 626-7373 Robin Gorsline [email protected] (212) 382-6689 LIBRARY [email protected] Richard Tuske ADVERTISING (212) 382-6742 Sharon MacNair [email protected] (212) 382-6630 Copy Services: (212) 382-6711 [email protected] Reference Desk: (212) 382-6666

MEMBERSHIP AND BENEFITS MEETING SERVICES Melissa Halili Nick Marricco (212) 382-6767 (212) 382-6637 [email protected] [email protected]

CITY BAR FUND SMALL LAW FIRM CENTER Maria Imperial (212) 382-4751 (212) 382-6678 [email protected] [email protected]

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 373 Of Note

THE AMERICAN BAR ASSOCIATION, IN CONJUNCTION WITH THE NA- tional Legal Aid and Defender Association, has selected the Association of the Bar of the City of New York as the recipient of the 2002 Harrison Tweed Award. The award is presented each year to bar associations that have made extraordinary efforts to improve legal services availability to poor persons in their communities. The Association was nominated by the Bar Association of San Fran- cisco for its outstanding work in providing free legal services to victims, their families and small businesses affected by the September 11th attack on the World Trade Center. “We are pleased to accept this award on behalf of the entire New York City legal community, including the thousands of attorneys, law firms and private corporations who gave generously of their time and resources to assist people affected by the tragedy,” said Maria L. Imperial, Executive Director of the City Bar Fund. “We would not have been able to undertake this Herculean effort without their support and the support of the many legal services organizations throughout the City.”

❊

THE FOLLOWING NEW COMMITTEE CHAIRS HAVE RECENTLY BEEN AP- pointed for terms begun September 1, 2002. Donald G. Kempf (Enhance Diversity in the Profession); Edward Labaton (Senior Lawyers); Leslie A. Rubin (Sex and Law); David P. Stoelting (Afri- can Affairs); Louis H. Tuchman (Taxation of Business Entities); and Mark S. Wojciechowski (Corporation Law).

T H E R E C O R D 374 Recent Committee Reports

Construction Law Letter to the Counsel to the Governor re: A. 09672 Act to amend the Lien Law to simplify the process by which a bond is posted to discharge a mechanics lien on a public or private improvement

Cooperative & Condominium Law The Application Process for Cooperatives

Domestic Violence Task Force Report on Legislation S.7769/A.11870, an act that creates the “peace at home” distinctive license plate program and the domestic violence aware- ness fund

Task Force on Downtown Redevelopment Report on Principles for Environmentally Sustainable Development

Election Law Report on Legislation S.4913 A/A.8463: an act that amends provisions relating to the canvass of results at polling places with respect to canvassing write-in votes

Report on Legislation S.7599/A.9654: An act to extend for one year the provisions of chapter 92 of the laws of 2001 relating to the election ballot and canvassing write-in votes

Energy Amicus Brief: Commonwealth Edison Company v. United States

Family Court & Family Law Report on Legislation S.3430A: An act to establish pretrial dispositional and violation procedures in persons in need of supervision cases

Federal Courts Letter to Advisory Committee on Appellate Rules re: Proposed Amend- ment to the Federal Rules of Appellate Procedure Concerning the Citation of Unpublished Opinions

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Federal Legislation Letter to Congress endorsing the enactment of election reform legislation based on the House and Senate versions of H.R. 3295, with comments on voting standards and enforcement

Foreign & Comparative Law Selective Bibliography of Legal Dictionaries in English and One or More Other Languages

Immigration and Nationality Law Letter to INS Re: Release of Information Regarding Immigration and Natu- ralization Service Detainees in Non-Federal Facilities

Insurance Law Federal Role in Terrorism Insurance

International Environmental Law Letter to Vicente Fox, President of Mexico re: Murder of Digna Ochoa y Placido

International Human Rights Interim Report on the Rule of Law, Democracy and the Protection of Fun- damental Rights in Hong Kong, June 1999 to July 2002

International Security Affairs The Legality and Constitutionality of the President’s Authority to Initiate an Invasion of Iraq

Investment Management Regulation Letter to SEC re: File no. S7-17-02, Proposed Amendments to Investment Company Advertising Rules

Letter to SEC re: File No. S7-21-02, Certification of Disclosure in Compa- nies’ Quarterly and Annual Reports

Legal Issues Pertaining to Animals Letter to Commissioner Mills of New York State Education Dept. Regard- ing Humane Education

Report on Legislation S.0402/A.01374: An act to amend the Insurance Law, in relation to prohibiting insurers from canceling, refusing to issue or renew, or charging higher premiums for homeowner’s insurance based on the breed of dog owned

Report on Legislation S.4730A/A.9599A: An act to amend the Environ-

T H E R E C O R D 376 R E C E N T C O M M I T T E E R E P O R T S mental Conservation Law and the State Finance Law, in relation to nui- sance wildlife control operators

New York City Affairs Letter to Mayor Bloomberg re: Intro 238 (Changes in the Term Limits Law)

Memorandum to the 2002 New York City Charter Commission

Securities Regulation Letter to SEC re: File No.S7-22-02; Release Nos. 33-8106, 34-46084, Pro- posed Rule on Additional Form 8-K Disclosure Requirements and Accelera- tion of Filing Date

Letter to SEC Regarding Release No. 33-8098, Disclosure in Management’s Dis- cussion and Analysis About the Application of Critical Accounting Policies

Sex and Law Column in the National Law Journal: Same Sex Marriage—Law Needs to Catch Up

Social Welfare Law Amicus Brief: Wittlinger v. Wing, a brief to the New York State Court of Appeals regarding awarding reasonable attorney’s fees under the New York Equal Access to Justice Act

Letter to Michael A. Cardozo, NYC Corporation Counsel, re: New York City’s litigation position concerning WEP workers and civil rights protections

Letter to House Representatives re: H.R. 786, a bill to restore eligibility for federal financial aid to students convicted of drug offenses

Taxation of Business Entities Letter to IRS Commissioner Charles Rossotti with comments on step-transaction issues in acquisition transactions

Trusts, Estates and Surrogate’s Courts Report on Legislation A.10660/S.2397-A: an act to amend the Estates, Powers and Trusts Law, in relation to permitting the grantor of a trust to confer upon trustees the power to make discretionary distributions to themselves as beneficiaries

Report on Legislation S.02938/A.10737: an act to amend the Surrogate’s Court Procedure Act, in relation to compensation of attorneys

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Report on Legislation S.4783: an act to amend the Estates, Powers and Trusts Law in relation to the Prudent Investor Rule

Report on Legislation A.7317: an act to amend the Estates, Powers and Trusts Law in relation to the rule against perpetuities

Report on Legislation A.5658/S.2784: an act to amend the Civil Practice Law and Rules (CPLR) in relation to the fiduciary exception to the attorney-client privilege

Report on Legislation S.6934/A.10756: an act to amend the Surrogate’s Court Procedure Act, in relation to compulsory accountings and related relief

Report on Legislation S.1389/A.7944: an act to amend the Estates, Powers and Trusts Law, in relation to enacting the transfer-on-death security registration act

Copies of any of the above reports are available to members by calling (212) 382-6624, or by e-mail, at [email protected].

T H E R E C O R D 378 The Legality and Constitutionality of the President’s Authority to Initiate an Invasion of Iraq

The Committee on International Security Affairs

CONTENTS

Introduction 379 I. The White House is Laying the Groundwork 380 for an Invasion of Iraq II. The President Does Not Have the Authority to Act 382 Unilaterally to Undertake the Large-Scale Invasion Contemplated (A) War Powers Clause 382 (B) War Powers Resolution 384 (C) Arguments for Executive Authority to Initiate War 384 (D) UN or NATO Authorization 387 (1) Security Council Resolution 678 389 (2) Security Council Resolution 1373 390 (E) 1991 and 2001 Joint Resolutions of Congress 391 (F) Congress’ Powers of Appropriation Are Insufficient 392 III. Under the Constitution, the Proposed Invasion Is a War 392 Conclusion 394

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The Legality and Constitutionality of the President’s Authority to Initiate an Invasion of Iraq The Committee on International Security Affairs

INTRODUCTION The Committee on International Security Affairs of the Association of the Bar of the City of New York (the “Committee”) has considered the legal and constitutional aspects of the President’s authority to order an invasion of Iraq without Congressional approval, focusing on the scenario of a large-scale invasion proposed by the Bush Administration for the purpose of regime change, without either a prior attack by Iraq on the United States, an imminent threat of such an attack or evidence that Iraq aided in the perpetration of the terrorist attacks of September 11, 2001. Our examination of the Constitution leads us to conclude that an invasion of this nature would constitute a war within the contemplation of the Founders and would thus require prior Congressional authorization. We believe that such an invasion solely on the President’s orders would deny Congress its Constitutionally-granted powers and could be justified only by an excessively expansive notion of Presidential authority, one unsupported by the plain text of the U.S. Constitution. This report addresses the issue of the legality of a Presidentially-initiated, large-scale invasion of Iraq in three steps:

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(1) An examination of the Administration’s stated rationale for undertaking a large-scale invasion of Iraq; (2) An analysis of the U.S. Constitution and other relevant law underpinning the respective authority of the Congress and the President to initiate such an invasion; and (3) The conclusion of the Committee, based upon the foregoing analysis, that such an invasion of Iraq requires prior Con- gressional authorization.

I. THE WHITE HOUSE IS LAYING THE GROUNDWORK FOR AN INVASION OF IRAQ Since 9/11, the Administration has taken an increasingly assertive, proactive stance toward Iraq. In October 2001, the White House noted that evidence linked Iraq and the al Qaeda organization which was responsible for the attacks of September 11, 2001, but found nothing specifically linking Iraq to the attacks on the United States.1 In the State of the Union Address on January 29, 2002, President Bush included Iraq in the “axis of evil,” a list of those countries that sponsored terrorists and possessed or were trying to acquire weapons of mass destruction (biological, chemical, or nuclear weapons).2 He suggested that the United States needed to act quickly against these nations but proposed no specific actions.3 In March, Vice President Richard B. Cheney made somewhat clearer the Administration’s concerns regarding Iraq, a “possible marriage . . . between the terrorist organizations . . . and weapons of mass destruction

1. See Interview with Richard B. Cheney, Meet the Press, Mar. 24, 2002. With respect to the connection between Iraq and al Qaeda, “[W]e haven’t been able to pin down any connection there . . . We discovered, and it’s since been public, the allegation that one of the lead hijackers, Mohamed Atta, had, in fact, met with Iraqi intelligence in Prague, but we’ve not been able yet from our perspective to nail down a close tie between the al Qaeda organization and Saddam Hussein. We’ll continue to look for it.” 2. President George W. Bush, State of the Union Address, Jan. 29, 2002, available at http:// www.whitehouse.gov/news/releases/2002/01/20020129-11.html. “States like these [North Korea, Iran, Iraq], and their terrorist allies, constitute an axis of evil, arming to threaten the peace of the world. By seeking weapons of mass destruction, these regimes pose a grave and growing danger. They could provide these arms to terrorists, giving them the means to match their hatred. They could attack our allies or attempt to blackmail the United States.” 3. Id . “[T]ime is not on our side. I will not wait on events while dangers gather. I will not stand by, as peril draws closer and closer. The United States of America will not permit the world’s most dangerous regimes to threaten us with the world’s most destructive weapons.”

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 381 I N V A S I O N O F I R A Q capability, the kind of devastating materials that Saddam used against his own people in ‘88,” although no link to al Qaeda or other terrorist organizations has yet been publicly shown or even claimed by the Ad- ministration.4 Recently, in a speech at West Point, the President made clear that the United States could no longer “wait for threats to fully materialize” but instead “must take battle to the enemy, disrupt his plans, and confront the worst threats before they emerge.”5 By late January, newspapers had reported that the White House was planning an invasion involving over 200,000 ground troops.6 By May, the Joint Chiefs of Staff had apparently convinced the Administration, which seemed to regard an offensive as “all but inevitable,”7 to postpone the proposed invasion of Iraq at least until after the brutal Iraqi summer. The Administration has also made pronouncements that the invasion of Iraq is designed to replace that country’s leadership with one more amenable to the United States’ current international goals. Secretary of State Colin Powell said in recent testimony before the House Interna- tional Relations Committee: “Regime change is something the United States might have to do alone.”8 Defense Secretary Donald Rumsfeld is quoted in June, 2002, in a Defense Department Report document describing his thoughts “that the world ‘would be a safer place if there were a regime change’ in Iraq. He pointed out that the United States and a number of its allies, backed by President Bush and the U.S. Congress, have expressed agreement on this because every new day means another opportunity for Iraqi weapons programs to mature further. ‘To the extent they become more mature,’ he said, ‘obviously, the capabilities both for weapons of

4. See Interview with Richard B. Cheney, supra note 1. 5. President George W. Bush, United States Military Academy Graduation Speech, June 2, 2002.

6. See generally Peter Ford, ‘Evil axis’ and others talk back , CHRISTIAN SCI . M ONITOR, Jan. 31, 2002, at 01, (describing U.S. invasion plans); Ian Bruce, Pentagon draws up plans for invasion of Iraq , HERALD (Glasgow), Jan. 31, 2002, at 11 (explaining Pentagon plans to use ground troops to expel Hussein); William Rees-Mogg, The countdown starts for Operation Saddam , TIMES (London), Feb. 18, 2002, Features (criticizing White House plans); Eric Schmitt, Cheney, at Marine Base, Reinforces Bush’s Stand On War Against Terror ,N.Y. T IMES, Feb. 19, 2002, at A10 (reporting Cheney’s efforts to garner support in the United States for action against Iraq). 7. See Scott Ritter, Commentary: Behind ‘Plot’ on Hussein, a Secret Agenda: Killing weapons inspections would clear way for war , L.A. T IMES, June 19, 2002, at B13. 8. State Department Report: “Powell says U.S. is Examining Full Range of Options on Iraq” , Feb. 6, 2002, issued by U.S. Department of State International Information Programs, viewed at http://usinfo.state.gov/topical/pol/arms/02020605.htm

T H E R E C O R D 382 I N T E R N A T I O N A L S E C U R I T Y A F F A I R S mass destruction themselves, as well as the ability to deliver them, evolve as well.’”9 Finally, in what has been called “one of the strongest and most detailed explanations by a senior U.S. official of the need to oust Hussein,”10 National Security Advisor Condoleeza Rice made a “moral case” for the invasion of Iraq:

This is an evil man [Saddam Hussein] who, left to his own devices, will wreak havoc again on his own population, his neighbors and, if he gets weapons of mass destruction and the means to deliver them, on all of us. It is a very powerful moral case for regime change . . .We certainly do not have the luxury of doing nothing . . .if Saddam Hussein is left in power, doing the things that he’s doing now, this is a threat that will emerge, and emerge in a very big way.11

Thus, the Administration has made abundantly clear that such an attack is based on long-term foreign policy, if not moral reasons, and not on any concept of defending the United States from an imminent military threat. Regardless of the validity of the rationale set forth by the Administration, a massive campaign against Iraq does not appear to the Committee to be the type of emergency defensive action that is within the exclusive authority of the President to undertake.

II. THE PRESIDENT DOES NOT HAVE THE AUTHORITY TO ACT UNILAT- ERALLY TO UNDERTAKE THE LARGE-SCALE INVASION CONTEMPLATED (A) War Powers Clause The text is simple: Only Congress has the authority to declare war under Article I, Section 8, Clause 11 of the Constitution: “The Congress shall have Power . . .To declare War . . .” On this there is no question. Furthermore,

[T]he Founding Fathers drew a distinction between offensive and defensive hostilities. — The records of the convention in-

9. Defense Department Report: Afghanistan; Iraq , June 17, 2002, issued by U.S. Department of State International Information Programs, viewed at http://usinfo.state.gov/regional/nea/ sasia/afghan/text/0617dodrpt.htm.

10. “Rice Lays Out Case for War In Iraq Bush; Adviser Cites ‘Moral’ Reasons,” W ASH POST, Aug. 16, 2002, at 1, reported at http://www.washingtonpost.com/wp-dyn/articles/A21333- 2002Aug15.html. 11. Rice interview with BBC, reported at http://news.bbc.co.uk/1/hi/world/americas/ 2193426.stm, Aug. 15, 2002. Brackets in original; emphasis added.

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dicate that this was done to preserve for the executive the power to repel sudden attacks and to avoid the possible implication that Congress was expected to conduct war . . .12

As Louis Fisher notes, the Founders’ decision to use the word “declare” instead of “make” left the President the limited and clearly delin- eated power to “repel sudden attacks” against the United States.13 The difference between the respective war power authority of the two branches can be explained as the difference between “defensive” military action against actual or imminent attack; and all other military action which constitutes “war” under the Constitution, the former being within the authority of the President as Executive and Commander in Chief, the latter within the exclusive authority of the Congress.14 The proposed invasion does not come close to the exigent defense against imminent or

12. R. Turner, T HE WAR POWERS RESOLUTION: ITSI MPLEMENTATION IN THEORY AND PRACTICE, (1983), at 17 [emphasis in original]. 13. Messrs. Madison and Gerry jointly introduced the amendment to substitute “declare” for “make.” They noted the change would “leav[e] to the Executive the power to repel sudden attacks.” M. Farrand, The Records of the Federal Convention of 1787 (rev. ed. 1937), at 318, cited in THE CONSTITUTION OF THE U NITED STATES OF AMERICA: ANALYSIS ANDI NTERPRETATION, Congressional Research Service (1992), at 308, note 1420. See Louis Fisher, Sidestepping Congress: Presidents Acting Under the UN and NATO , 47 CASE W. R ES . L. R EV. 1237 (1997) (arguing that the constitutional structure adopted by the Framers is “remarkably clear in its basic principles. The authority to initiate war lay with Congress. The President could act unilaterally only in one area: to repel sudden attacks.”). A number of leading commentators support this view. See generally JOHN H. E LY , W AR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM ANDI TS AFTERMATH (1993); L OUIS H ENKIN, CONSTITUTION- ALISM, DEMOCRACY ,AND FOREIGN AFFAIRS (1990); H AROLD H. KOH ,THE N ATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THEI RAN-CONTRA AFFAIR (1990); M ICHAEL J. GLENNON ,C ONSTITUTIONAL D IPLOMACY (1990); Lori Fisler Damrosch, Constitutional Control Over War Powers: A Common Core of Accountability in Democratic Societies? , 50 U. M IAMI L. R EV. 181 (1995) (arguing that “the body of experience of the mature democracies in their war-and-peace decisions reflects a common core of commitment to democratic accountability.”). See also S. Con. Res. 133, 107th Cong. (2002) referred to Senate Foreign Relations Committee (expressing “the sense of Congress that the United States should not use force against Iraq, outside of the existing Rules of Engagement, without specific statutory authorization or a declaration of war under Article I, Section 8, Clause 11 of the Constitution of the United States”).

14. See, e.g. , William Whiting, W AR POWERS U NDER THE CONSTITUTION OF THE U NITED STATES (1871), at 38-40: “Congress has the sole power, under the constitution, to make [a] declaration [of war], and to sanction or authorize the commencement of offensive war . . . But this is quite a different case from a defensive . . . war. The constitution establishes the mode in which this government shall commence wars, the authority which may authorize, and the declarations which shall precede, any act of hostility; but it has no power to prescribe the manner in which others should begin war against us.”

T H E R E C O R D 384 I N T E R N A T I O N A L S E C U R I T Y A F F A I R S sudden attack contemplated by the Founders as within the Presidential authority.

(B) War Powers Resolution15 In response to perceived excesses by Presidents Lyndon B. Johnson and Richard Nixon in initiating and expanding the war in South-East Asia, Congress resolved in 1973 to clarify its sole authority to declare war. The War Powers Resolution (the “WPR”) requires the President to report to and regularly consult with Congress after unilaterally choosing to deploy U.S. armed forces.16 Unless Congress otherwise authorizes the military action, the WPR seeks to require the President to withdraw armed forces within sixty days of deploying them. A Congressional declaration of war or enabling resolution waives these requirements and gives the President the full power to conduct a war. Some argue that the WPR is ineffective or even unconstitutional as it seeks to alter the Constitutional war powers framework and note that no President has recognized its constitutionality. However, in large-scale conflicts, Presidents have sought Con- gressional authorization, most notably in the most closely analogous military action when President George H.W. Bush sought support of Congress for the Gulf War of 1991.

(C) Arguments for Executive Authority to Initiate War Some writers have argued that the Founders reserved for the President the power to initiate wars and gave Congress the power merely to ratify them, i.e., decide the legal status of the conflict initiated by the President.17

15. See 50 U.S.C. §§ 1541-1548. 16. The WPR seeks to prevent the President from abusing both his authority as Commander- in-Chief and his ability to respond more quickly than Congress, as the President may deploy troops and undertake a military action that does not constitute a response to a sudden or imminent attack before Congress can act at all, or he may deploy a sufficient number of troops quickly enough to create a self-fulfilling prophecy–(that to remove U.S. forces immediately after deploying them would be irresponsible and dangerous). If the President can commit troops offensively and only consult Congress when hostilities become inevitable ( i.e. , shoot and ask questions later), then Congress has no real war powers. See Lori Fisler Damrosch, The Constitutional Responsibility of Congress for Military Engagements , 89 A M . J. I NT’L L. 58 (1994) (arguing that in the post-Cold War era, it is more important than ever to have “robust parliamentary debate and genuine deliberation” before military action, as required by WPR and the War Powers Clause). See also infra Part II.F (arguing that Congressional appropriations or other measures after military deployment are insufficient checks against unilateral action by the President). 17. See generally John C. Yoo, The Continuation of Politics by Other Means: The Original

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These writers deny the authority expressly granted to Congress under the Constitution and argue in support of the President’s authority to undertake unilateral action by positing that the President has the “inherent executive authority” to initiate wars, as Commander-in-Chief under Ar- ticle II, Section 218 and as part of his generic powers as President.19 This argument, if accepted, gives the President wide-ranging powers to use force— not just to repel a sudden attack but also to initiate full-scale offensives as part of the war against terrorism.20 According to this view, Congress has also waived its authority over the years by acquiescing to numerous wars initiated by the President.21 These arguments deny or miscast the plain text of the Constitution granting Congress the sole authority to declare war. Conversely, no text gives the President the discretion to deploy U.S. forces without Congres- sional approval in the absence of a sudden danger to national security, not even for the “moral” reasons or concerns of “emerging” threats cited by the Administration.22

Understanding of War Powers, 84 C ALIF . L. R EV. 167 (1996). Yoo argues that the Founders understood declarations of war not as legislative authorization to initiate war but as a mere acknowledgement by Congress that the legal status had changed, from peace to war, between the United States and a hostile state. It alerted all nations that violence committed against hostile states was official and public, not the work of pirates or rebels, and alerts U.S. citizens about the identity of the new enemy. Yoo calls this a Congressional exercise of judicial powers. See id . at 205. 18. Some argue that the President has more explicit and unchecked authority to use the armed forces under Article II, Section 2 (“President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several states, when called into actual Service of the United States.”). See generally Robert J. Delahunty & John C. Yoo, The President’s Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations That Harbor or Support Them , 25 H ARV. J.L. & P UB. POL’Y 487 (2002). 19. See Yoo, supra note 17, at 252-256 (arguing that President’s war powers were continuation of British and colonial traditions and that 18th Century citizens expected a “paternal figure vested with the duty of protecting his fellow citizens.”). 20. See Delahunty & Yoo, supra note 18, at 487 (“[T]he President had the innate power not only to retaliate against any person, organization, or state suspected of involvement in terrorist attacks on the United States, but also against foreign states suspected of harboring or supporting such organizations.”) Authors are in the Office of Legal Counsel of the Department of Justice (but do not claim to state official views of the Justice Department).

21. See John Yoo, Clio at War: The Misuse of History in the War Powers Debate , 70 U . C OLO. L. R EV . 1169, 1179 (1999) (arguing that Congress has allowed the President to assume the initiative in war). 22. See D.A. Jeremy Telman, A Truism That Isn’t True? The Tenth Amendment and Executive War Power, 51 C ATH. U. L. R EV. 135 , 189 (responding to Yoo and others who argue for

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Advocates of unilateral executive authority over war powers also claim to bring an originalist understanding to the War Powers clause that con- tradicts both the text and the clear (originalist) evidence that the Founders wished to prevent the President from having strong war powers.23 Advo- cates of inherent executive authority to initiate wars argue that the American conception of executive war powers was largely shaped by Britain, even though the colonies revolted from Britain in part as a reaction to the excess of British executive power they had experienced.24 The President’s role as Commander-in-Chief emphasizes civilian control over the military and, absent an immediate threat to the nation requiring defense, only gives him the power to execute Congress’ decision to commence a war.25

increased executive war powers by arguing that such powers can only come from a theory of inherent authority because “there is no basis, in the constitutional text, in the writings of the Framers, in political theory, or in the constitutional history of the United States for transferring powers invested in the Legislature to the Executive.”). Critics like Yoo read “declare war” out of context, separating from neighboring clauses that clearly enumerate the power to raise, support, and regulate the armed forces (Cl. 12-16), all part and parcel of control when and how the United States goes to war. 23. James Madison said that the Constitution “supposes . . . that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly, with studied care, vested the question of war in the Legislature.” James Madison, Letter From James Madison to Thomas Jefferson, Apr. 2, 1798, in 6 T HE WRITINGS OFJ AMES MADISON, 311, 312 (Gaillard Hunt Ed., 1906) (cited by Telman, supra note 22, at 152). Furthermore, during the Constitutional Convention, no one even seconded a motion to give the President the power to initiate wars. See 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, (Max Farrand ed., 1937) (cited by Telman, supra note 22, at 152). Finally, Madison argued that the system of checks and balances required that Congress control the decision to initiate war: “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.” James Madison, Helvidius No. 1 , in 6 THE WRITINGS OFJ AMES M ADISON 145 (Gaillard Hunt ed., 1906). 24. See Telman, supra note 22, at 180 (“Yoo’s theory ignores the great efforts expended in the Revolutionary Era to free the United States from the problems associated with the excesses of executive power experienced when the American states had the status of English colonies.”). Even Alexander Hamilton, once an advocate of constitutional monarchy, conceded that the powers granted the President were much inferior to those granted the King of Great Britain, who could declare war and raise and regulate armies. Id . at 182. 25. Hamilton argued at the Constitutional Convention that the executive’s war time functions were “to have the direction of war when authorized or begun”; nothing in his statement to the Convention indicated that the President should also have the power to decide whether to start a war. 5 D EBATESI N THE SEVERAL STATE CONVENTIONS ,ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMEND BY THE G ENERAL CONVENTION AT PHILADELPHIA, IN 1787 , at 205 (Jonathan Elliot ed., 2d ed. 1996). This paper takes no position with respect to the authority the President may have to employ

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Many Founders believed war declarations were simply not an executive function.26

(D) UN or NATO Authorization Some scholars argue that the President may undertake a military action without Congressional authorization if the UN or NATO has authorized such an action.27 By this view, the purpose of the “declare war” clause is to ensure that the decision to initiate war does not rest with just one person. UN authorization avoids this problem, perhaps even more effectively than does Congress’ authorization, because the Security Council “is far less likely to be stampeded by combat fever than is Congress.”28 As examples, proponents of this view observe that Presidents, on two previous occasions, have deployed U.S. forces pursuant to Security Council authorizations: the Korean War29 and the 1991 Gulf War.30 UN or NATO authorization does not absolve the President of his Con- stitutional duty to obtain Congress’ approval. Whether the Security Council approves of an invasion of Iraq or not,31 the Constitution requires Con-

the armed forces in military operations other than war, such as peacekeeping, disaster relief, peacetime garrisons in foreign bases, training of U.S. and allied forces abroad and the like. 26. Madison, Helvidius No. 1 , supra note 23, at 148. “A declaration that there shall be war is not an execution of laws: it does not suppose pre-existing laws to be executed: it is not, in any respect, an act merely executive.” 27. See generally Thomas M. Franck & Faiza Patel, UN Police Action in Lieu of War: “The Old Order Changeth,” 85 A M . J. INT’L L. 63 (1991). 28. Id . at 74. “The purpose of the war-declaring clause was to ensure that this fateful decision did not rest with a single person. The new system vests that responsibility in the Security Council, a body where the most divergent interests and perspectives of humanity are represented and where five of fifteen members have a veto power.” Id . As a practical matter of restraining the President, it may be true that the Security Council, made up of different member states with different and often conflicting political interests, is less likely to authorize the use of American force than Congress. Such support seems unlikely under the circumstances. 29. Delahunty & Yoo, supra note 18, at 504 (“Perhaps the most significant operation exer- cised on the President’s sole authority occurred during the Korean War, when President Truman ordered United States troops to fight a war that lasted for over three years and resulted in over 142,000 American casualties.”). 30. See Fisher, supra note 13, at 1266 (observing that during the Gulf War, Richard B. Cheney, the Secretary of Defense, argued that Congressional authorization was not necessary for UN-approved actions). 31. Recent history suggests that three of five permanent members (Russia, China, France) of the Security Council would oppose an invasion of Iraq. R ICHARD BUTLER ,THE G REATEST THREAT: IRAQ, W EAPONS OF MASS D ESTRUCTION ,AND THE G ROWING CRISIS OF G LOBAL SECURITY 91, 220-21 (2000)

T H E R E C O R D 388 I N T E R N A T I O N A L S E C U R I T Y A F F A I R S gressional authorization for war. Treaty obligations, such as those under the UN Charter or NATO Treaty, are equivalent to federal statutory law32 and, as such, never trump the Constitution.33 Arguments relying on the Korean and Gulf Wars as examples are un- convincing. President Harry S. Truman’s order sending U.S. forces to Ko- rea might be viewed as repelling a sudden attack—the North Korean invasion had nearly overrun South Korea, threatening irreparable harm to U.S. security interests.34 In any case, it appears that President Truman sought UN approval as a fig leaf for acting without Congress; he35 had already ordered American forces to defend South Korea before obtaining UN authorization36

(describing Russian, French, and Chinese support for ending sanctions against Iraq, despite the lack of Iraqi compliance with UN weapons inspection regime, and self-interested political motives for this support). 32. See U.S. Const., Art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”).

33. R ESTATEMENT (THIRD )OF FOREIGN RELATIONS LAW §111, Comment (a) (“In their character as law of the United States, rules of international law and provisions of international agreements of the United States are subject to the Bill of Rights and other prohibitions, restrictions, and requirements of the Constitution, and cannot be given effect in violation of them.”). 34. Truman’s advisers believed that the sudden North Korean attack required an immediate U.S. response: “To sit by while Korea is overrun by unprovoked armed attack would start a disastrous chain of events leading most probably to world war.” John Foster Dulles & John M. Allison, Telegram to Dean Acheson and Dean Rusk, June 25, 1950 (one day after the North Korean invasion began), available at http://www.trumanlibrary.org/whistlestop/study_collections/ korea/large/week1/elsy_3_1.htm. Truman regarded the Korean invasion as the beginning of general Soviet aggression and expansion in the Far East. See generally Philip C. Jessup, Memo- randum of Conversation, June 25, 1950, available at http://www.trumanlibrary.org/whistlestop/ study_collections/korea/large/week1/kw_4_1.htm (summarizing discussion between Truman and his advisers about the Korean situation, its implications for China, Formosa, and South- east Asia, and plans to strike at Soviet airbases and ships in the Pacific Ocean). 35. Truman, before the Korean War, had agreed that he must seek Congressional authorization before committing U.S. troops to UN or NATO military actions. See Fisher, supra note 13, at 1245-46 (“After Roosevelt’s death, President Truman sent a cable from Potsdam stating that all agreements involving U.S. troop commitments to the United Nations would first have to be approved by both Houses of Congress.). See also id . at 1255-56 (“In 1951, during Senate hearings on NATO, [Under Secretary of State Dean] Acheson … acknowledged that the treaty does not compel any nation ‘to take steps contrary to its convictions, and none is obligated to ignore its national interests.”). 36. Id. at 1261 (indicating that Truman had ordered American support of South Korean forces, in the form of military supplies and air and sea cover, before the Security Council authorized states to repel the invasion by North Korea).

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 389 I N V A S I O N O F I R A Q and would have done so without receiving it.37 Likewise President George H.W. Bush, despite obtaining UN authorization, sought and received Congressional approval for the Gulf War.38

(1) Security Council Resolution 678 The Administration may argue that not only does UN authorization give the President authority to act without Congress, but that specifically, President Bush already has a UN mandate to invade Iraq. This 1990 Reso- lution states:

The Security Council . . . Acting under Chapter VII of the Charter . . . Authorizes Member States co-operating with the Govern- ment of Kuwait, unless Iraq on or before 15 January 1991 fully implements Resolution 660 (1990) [calling for Iraq to withdraw from Kuwait] and all subsequent relevant resolutions, to use all necessary means . . . to restore international peace and security in the area.39

Congress stated in PL 102-1 that the President was “authorized to use United States Armed Forces pursuant to United Nations Security Council Resolution 678,”40 and the subsequent relevant Security Council resolutions referred to in Resolution 660 and thus incorporated into Resolution 678 (including those establishing the Iraq weapons inspection regime), thereby extending Congressional authorization to such subsequent Secu- rity Council resolutions. That this is so is indicated by the President’s continued reporting to Congress under PL 102-1’s reporting requirements regarding the United States’ efforts to enforce those subsequent Security Council Resolutions and Congress’ acceptance of such reports.41

37. Id . (“After he left the presidency, Truman was asked whether he had been willing to use military force in Korea without UN backing. He replied, with customary bluntness: ‘No question about it.’”). 38. PL 102-1 (1991). “Section 2. Authorization for use of United States Armed Forces (a) Authorization. — The President is authorized, subject to subsection (b), to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security Council Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677.” 39. S.C. Res. 678, U.N. Doc. S/RES/0678 (1990). 40. Id . [emphasis supplied] . 41. See e.g. , Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate January 23, 2002, Office of the White House Press Secretary, January 24, 2002:

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Nonetheless, while it appears that Resolution 678 may still be in effect, and, further, a purely textual analysis of the Resolution may support a broad interpretation of purpose extending even to authorization of force for “regime change,”42 nonetheless, a review of that and the subsequent resolutions from the Security Council—along with a reading of the debate surrounding the adoption of the Authorization for Use of Force Against Iraq Joint Resolution—suggest that it did not authorize, intend or even contemplate the use of force against Iraq for “moral” reasons or purposes of “regime change.” The Committee concludes, therefore, that Resolution 678 does not provide authorization for the invasion contemplated by the Bush Administration.

(2) Security Council Resolution 1373 Even if UN authorization allowed the President to order American forces into hostilities without Congress’ approval, Resolution 1373 passed in response to the events of September 11, does not appear to the Com- mittee to authorize the United States to invade Iraq for the purpose of regime change or even moral reasons.43 In contrast, nothing in the plain, operative text of Resolution 1373 authorizes any state to invade Iraq absent a connection with 9/11.44 There are also other flaws with citing Reso-

Dear Mr. Speaker: (Dear Mr. President:) Consistent with the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1) and as part of my effort to keep the Congress fully informed, I am providing a report prepared by my Administration on the status of efforts to obtain Iraq’s compliance with the resolutions adopted by the United Nations Security Council. The last report, consistent with Public Law 102-1, was transmitted on October 11, 2001. Sincerely, GEORGE W. BUSH 42. “From a purely textual perspective, that authorization seems to have few, if any, limits. “Area” is undefined and could mean Iraq or the entire Middle East. “Restoring international peace and security’ could mean occupying Iraq, removing Saddam Hussein from power, or bombing Iraq’s military/industrial capacity.” Jules Lobel & Michael Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspec- tion Regime , 93 A M . J.I.L . 124 (Jan 1999), printed at http://www.asil.org/ajil/lobel.htm, at text accompanying footnotes 59 and 60. 43. Id. 44. See S.C. Res. 1373 resolving (that states shall suppress the financing of terrorist acts (¶1), deny other support to terrorists or terrorist groups (¶2), cooperate with other states to exchange information, become parties to relevant anti-terrorism treaties, and prevent abuse of asylum laws by terrorists (¶3). No part of the text of the resolution urges or condones states to invade other states to prevent terrorism), S.C. Res. 1373, U.N. Doc. S/RES/1373 (2001).

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 391 I N V A S I O N O F I R A Q lution 1373 as a blank check (e.g., the phrase “combat by all means” appears in the preamble and is not binding). All this points to the fact that the Resolution 1373 does not authorize the proposed war against Iraq.

(E) 1991 and 2001 Joint Resolutions of Congress Congress has twice issued resolutions that might be used to support a contention that Congress has already authorized a future war against Iraq; yet, neither resolution currently applies. As noted above, President George H.W. Bush sought and received Congressional authorization for undertaking the Persian Gulf War’s Operation Desert Storm in January 1991 pursuant to Security Council Resolution 678 in the form of PL 102-1 (“Authorization for Use of Military Force Against Iraq Resolution”).45 While, as explained above, from 1991 to the present three Presidents have continued to report to Congress under PL 102-1 regarding the United States’ efforts pursuant to Security Council Resolution 678, and both the U.S. and the British governments take the position that Resolution 678 continues in effect, neither the 1991 Authorization for Use of Military Force Against Iraq Resolution nor Resolution 678 were designed to authorize conquest of Iraq to achieve a change in regime. More recently, in the immediate wake of 9/11, Congress authorized the President to use armed force against “those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks on September 11, 2001.”46 This sweeping resolution requires a connection with 9/11 and would only authorize war against Iraq if the President had determined that Iraq had “aided” in perpetrating the attacks. To date, the President has not made such a determination. It is important to note that the United States has not announced any causal link between the events of 9/11 and Iraq; Vice President Cheney has acknowledged as much explicitly.47 It is thus clear the 2001 Joint Resolution To Authorize The Use Of U.S. Armed Forces Against Those Responsible For The Recent Attacks Launched Against The United States does not extend to authorize war against Iraq for the stated purpose.

45. Public Law 102 – 1, §2(b) (Joint Resolution to authorize use of military force against Iraq) Jan. 14, 1991. “The President is authorized . . . to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) . . .” 46. United States Public Law 107-40, §2(a) (Joint Resolution to authorize the use of U.S. Armed Forces against those responsible for the recent attacks launched against the United States) Sept. 18, 2001. 47. See note 1.

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(F) Congress’ Powers of Appropriation Are Insufficient Some scholars argue that appropriations are a sufficient check, and the primary one intended by the Founders, against the executive authority to initiate war—Congress may simply refuse funding for further military operations.48 However, this check will often be useless against the President. Under this theory, Congress may stop military actions once troops have been committed. The action may end, damage may be done, and lives (U.S. and foreign) may be lost well before the withdrawal of funding is effective.49 It may also be dangerous to withdraw funding once a large ground force has been committed.50 This view of war powers is backwards. Congress should not be in a position to decide merely how many casualties the United States will accept but rather whether losses need be incurred at all.

III. UNDER THE CONSTITUTION, THE PROPOSED INVASION IS A WAR Under the Constitution, President Bush would have the unilateral authority to commit U.S. troops to Iraq if he could show that such an action constituted repelling a sudden or imminent attack or its modern day equivalent. Under the scenario addressed herein, however, the Com- mittee believes he must seek Congressional approval. There are three reasons for this conclusion, which must be read cumulatively:

(1) The scale of the endeavor strongly suggests the action is a

48. See Yoo, supra note 17 at 297 (“Recent events [ i.e., United States-led military operations in Bosnia] confirm that Congress fully understands that its appropriations power may be used to check executive military operations.”). 49. For instance, the Office of the Legal Counsel of the Department of Justice advised Presi- dent George H.W. Bush that he could send U.S. troops to Somalia on his own authority. 16 Op. Off. Legal Counsel 9 (1992) (cited by Delahunty & Yoo, supra note 18, at 500 n.51). After a series of dramatic American setbacks, Congress directed the President to withdraw forces from Somalia pursuant to its authority clarified by the War Powers Resolution. See H.R. C ON. RES . 170, 103d Cong., 139 C ONG. REC. 9039 (1993). One might imagine that Congress could have ended the operation in Somalia (a military action far smaller than that contemplated in Iraq) by withdrawing funding instead. Either way, this example suggests that if the power to initiate war lies with the President, Congress has no effective check—it can only limit casualties once hostilities have begun because it cannot stop them from taking place. 50. Yoo concedes that Congress may be reluctant to deny appropriations because of the risk of “creating the impression that they are leaving American troops at the front defenseless,” but that “a failure of political will should not be confused with a constitutional defect.” Yoo, supra note 17, at 299. He assumes that the risk of withdrawing funding as largely a perceptual or political danger, rather than one that may, in fact, involve the lives of deployed troops.

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“war” under Constitution (although scale alone is insufficient to put the matter into the legislative domain as the type of war requiring Congressional authorization). The United States Dis- trict Court for the District of Columbia had “no hesitation in concluding that an offensive entry into Iraq by several hundred thousand United States servicemen . . . could be described as a ‘war’ within the meaning of [the War Powers Clause].”51 (Congress is more likely to acquiesce to unilateral executive decisions to deploy relatively small forces,52 but despite any such acquiescence, Congress cannot waive its Constitutional war powers.) The deployment of 200,000 or more troops (or, indeed, even a “smaller” invasion in conjunction with massive air attack) is practically and qualitatively different from the scale of other recent U.S. military interventions, except for the Vietnam and Gulf Wars; in each of these two conflicts, the President specifically sought and received Congressional authorization. The Tonkin Gulf Resolution, while passed by Congress as a reaction to largely fabricated events, shows that even President Johnson believed he was Constitutionally compelled to attempt to obtain Con- gress’ authorization before beginning a full-fledged war in Vietnam. President Johnson likely abused his authority to send troops to Vietnam. More important, in the context of this discussion on the separation of war powers, is how he might have abused his authority. President Johnson’s actions, if anything, affirmed the legitimacy of the War Powers clause because he actively sought Congressional authorization for the Vietnam War.53 (2) The invasion of Iraq for the purpose of regime change is plainly not for the purpose of repelling a sudden or imminent

51. See Dellums v. Bush , 752 F. Supp. 1141, 1146 (D.D.C. 1990). See also Bruce Ackerman, Commentary: Bush Must Avoid Shortcuts on Road to War: President should not try to sidestep Congress in any action against Iraq ,L.A. T IMES , May 31, 2002, at B15. 52. Telman, supra note 22, at 168. “Although Congress has generally acquiesced in the President’s unilateral power to commit the Armed Forces to actions of limited scope, that acquiescence in individual cases, no matter how numerous, cannot result in a transfer of war powers from one branch of the federal government to another.” 53. Johnson’s failing was that he was willing to use false information (allowing the Pentagon to fabricate incidents suggesting North Vietnamese provocation) to get such authorization. The President has an obligation to be truthful when exercising his Executive and Commander- in-Chief war powers.

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attack, as discussed above. Iraq has not, since the end of the 1991 Gulf War, used force against or directly threatened the United States (aside from attacks on allied airplanes in the no- fly zones). According to the National Security Advisor, any threat that Iraq poses is not of an immediate nature; if it were, the President would have proposed an immediate action, or, already acted on his own authority. To deem an invasion of Iraq repelling a sudden or imminent attack under these circumstances dangerously distorts the intent of the Founders. (3) In the case of repelling a “sudden attack,” or even the modern day equivalent such as disrupting a terrorist operation about to commence, time limitations help to provide an understanding of the boundary between executive and legislative war powers. The President has the authority and obligation to repel sudden attacks because the unitary Executive can react more quickly than Congress. In such cases there is time to deliberate. Perhaps a President who fears that his war plans will be rejected would not want to subject them to Congressional scrutiny. It is in precisely this situation, however, that the decision is not the President’s to make alone; he must convince Congress54 not only of the justness of the cause but the legitimacy of the means.

CONCLUSION The Committee has set forth its reasoning and conclusion that the President needs Congressional authorization to launch a large-scale invasion of Iraq for the purpose of regime change or on “moral” grounds set forth.55 Some may disagree with this conclusion. However, when the President seeks to take the nation from a state of peace to a state of war for reasons other than defense against actual or imminent attack, however valid those reasons may be, the Republic deserves—and the Constitution requires—a Congressional debate over whether to authorize such a war. Swift action in defense of the nation and enforcement of legislation are the President’s

54. If the reasons for a ground invasion depend on top secret intelligence, and public disclosure will compromise intelligence sources, then the President may provide this information to Congress behind closed doors. See , e.g. , the current Congressional investigation of possible intelligence breakdowns before 9/11, which remained largely closed to the public. Protecting intelligence sources may be a good reason not to reveal secrets but does not justify the President acting without Congress’ authorization. 55. The Committee takes no position regarding the validity of those stated reasons.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 395 I N V A S I O N O F I R A Q obligations; decision-making from reasoned deliberation and determining America’s long-term security interests is Congress’. Administration officials, former White House officials, members of Congress, and scholars have argued for and against removing Saddam Hussein, and even those who agree he must be ousted, disagree as to whether using ground troops and a massive air assault in a large scale endeavor is the best means.56 As such, the prudence of offensive military action— from the perspective of U.S. national security—is far from self-evident. This controversy necessarily requires open and public debate about the merits of a war against Iraq to effect regime change. Such deliberation in Congress and amongst citizens—before using force—is the hallmark of a democratic republic, as conceived of by the Founders and written in the Constitution. The President can best facilitate this necessary debate and honor the Constitutional separation of powers by requesting authorization from Congress for his proposed military action before acting.

August 2002

56. These debates are not a matter of partisan politics. In addition to many Democrats, former senior Republican officials who served during the Gulf War in the Administration of G.H.W. Bush argue against a ground invasion of Iraq. See interviews with James Baker and Brent Scowcroft, Frontline: Gunning For Saddam , Nov. 8, 2001 (arguing that Saddam Hussein is not the greatest threat to U.S. security and arguing against a ground invasion).

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The Committee on International Security Affairs

Raenu Barod, Chair Igou M. Allbray Kerry J. Houghton John R. Burroughs Thomas E. Miotke Paul H. Cohen Lisa A. Munoz John C. Ericson John V. H. Pierce William V. O. Gnichtel Mark R. Shulman

Mr. Shulman and Lawrence J. Lee, a student at New York Univer- sity School of Law who will be joining the Committee in Septem- ber 2002, are the principal authors of this report. Eleven members of the Committee have approved this report. Five members have recused themselves due to conflicts of interest: Nicholas Rostow, Paul W. Butler, Steven C. Krane, Robert J. Cosgrove and Samrat S. Khichi. The Committee is grateful for the considerable input of Stephen J. Shapiro and Miles P. Fischer of the Committee on Mili- tary Affairs and Justice.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 397 Interim Report on the Rule of Law, Democracy and the Protection of Fundamental Rights in Hong Kong, June 1999 to July 2002

The Committee on International Human Rights*

CONTENTS I. Overview 399 II. Preserving The Rule of Law 403 A. Introduction 403 B. Subsequent Court of Final Appeal Judgments 405 1. Right of Abode Cases 405 2. Other Issues: Freedom of Expression 409 C. Other Rule of Law Concerns 409 III. State of Democracy 411 A. Selection and Accountability of the Chief Executive 412 1. Chief Executive Selection 412 2. Accountability System 416 B. Legislative and District Council Elections 418 1. Legislative Council Elections 418

* This report was co-authored by the The Joseph R. Crowley Program in International Human Rights, Fordham Law School.

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2. District Council Elections 419 IV. Fundamental Rights Issues 419 A. Discrimination 419 B. Freedom of Expression and Association 421 1. Public Order Ordinance 421 2. Press Freedom 424 3. Falun Gong 425 V. Conclusion 426

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Interim Report on the Rule of Law, Democracy and the Protection of Fundamental Rights in Hong Kong, June 1999 to July 2002 The Committee on International Human Rights

I. OVERVIEW This is the third in a series of reports by the Association of the Bar of the City of New York (the “Association”) in recent years examining questions of the rule of law, democracy and fundamental rights in Hong Kong. The Association’s continued interest reflects in part an affinity for the people of Hong Kong as fellow residents of one of the handful of the world’s great, global financial capitals, both governed by a shared, adopted heritage of the common law legal tradition. In part, the Association’s interest reflects the business interests of its members and their clients. Hong Kong is America’s 15th largest trading partner, home to more than 50,000 Americans and 1,100 American companies, destination for more than 75,000 American travelers each month, including many business travelers, and the recipient of more than $21 billion in direct investment from America and much, much more in managed funds and portfolios.1 These citizens, businesses and investments are linked to New York directly

1. “A Tale of Two Cities: The Image and Reality of Hong Kong Today ,” Remarks of U.S. Consul General Michael Klosson to the Asia Society, Houston, Texas (Feb. 15, 2001).

T H E R E C O R D 400 I N T E R N A T I O N A L H U M A N R I G H T S and indirectly through its markets, businesses and service professionals, including many members of the Association. And in part, the Association’s interest reflects the hope that enduring respect for the rule of law and fundamental freedoms in Hong Kong after the reversion of sovereignty in 1997 will help to speed the on-going evolution of legal norms on the mainland, bringing the benefits of the rule of law and established legal practices to more than one fifth of the population of the world. This interim report follows a mission to Hong Kong in May/June 1999 by representatives of the Association in conjunction with faculty and students in the Joseph R. Crowley Program in International Human Rights at Fordham Law School (the “Crowley Program”). The report of that mission was published in The Record under the title “One Country, Two Legal Systems? The Rule of Law, Democracy, and the Protection of Fundamental Human Rights in Post-Handover Hong Kong.”2 A parallel report was printed in the Fordham International Law Journal.3 A central purpose of the 1999 mission was to follow up on the work of the Association’s first Hong Kong mission, which took place in October 1995. That mission went to Hong Kong to monitor and report on issues that were anticipated to affect the rule of law in Hong Kong as a result of the transfer of governmental authority from the United Kingdom to the People’s Republic of China (“PRC”). The report of that mission was published in The Record under the title “Preserving the Rule of Law in Hong Kong after July 1, 1997: A Report of a Mission of Inquiry,” by the Committee on Interna- tional Human Rights.4 The report was reprinted in the University of Penn- sylvania Journal of International Economic Law.5 Both earlier reports stressed the importance of continuing to monitor events in Hong Kong:

It is also imperative that this monitoring continue well beyond July 1, 1997. Many have expressed to us the view that the risks to Hong Kong’s preservation of the rule of law and of its economy

2. One Country, Two Legal Systems? The Rule of Law, Democracy, and the Protection of Fundamental Human Rights in Post-Handover Hong Kong, 55 R ECORD OF THE ASSOC .OF THE BAR OF THE CITY OF N EW YORK 32-388 (2000).

3. One Country, Two Legal Systems? , 23 F ORDHAMI NT’L L.J . 1 (Nov. 1999). 4. Preserving the Rule of Law in Hong Kong After July 1, 1997: A Report of a Mission of Inquiry: The Association of the Bar of the City of New York: The Committee on International Human Rights, 51 R ECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF N EW YORK 357-90 (1996). 5. Preserving the Rule of Law in Hong Kong After July 1, 1997: A Report of a Mission of Inquiry: The Association of the Bar of the City of New York: The Committee on International Human Rights, 18 U. P A. J. INT’L ECON. L . 367 (1997).

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will not be as great in the early years of the transition as they will be in later years, when world attention on Hong Kong will have abated and the temptations for exploitation may have increased…. It is imperative that questions relating to the preservation of the rule of law in Hong Kong not be overlooked or compromised because attention is focused elsewhere. We believe the Association may play a role in assuring that this does not occur.6

It is in that spirit that the Association, again in conjunction with the Crowley Program, undertook the present examination of recent developments in Hong Kong.7 Unlike the 1996 and 2000 reports, however, this interim report does not follow a visit to Hong Kong by a delegation of Association members. It reflects conclusions drawn from written submissions solicited from persons and entities in Hong Kong with whom the Association and the Crowley Program met during earlier visits—including members of the Hong Kong government, judges, legislators, leaders of the Hong Kong bar (both barristers and solicitors), law professors, journalists, human rights advocates, consular officials and business leaders—as well as independent research and communications with persons outside Hong Kong who share an interest in the issues addressed. The use of these submissions is not intended to substitute for future visits to Hong Kong, but rather as an approach to reporting significant developments that occur between missions. Accordingly, this interim report focuses largely on factual developments that have occurred since June 2000. Readers are referred to the earlier mission reports for detailed historical and legal analysis. In the 1996 mission report we focused largely on potential threats to Hong Kong’s system of rule of law and fundamental liberties originating from outside of the territory, and in particular from Beijing. In fact, as our 2000 report indicated, the more serious threats came not from the mainland, but from the actions of HKSAR government officials themselves, particularly the actions of the HKSAR administration in seeking a “reinterpretation” of the Court of Final Appeal’s (“CFA”) decision in the right of abode cases.

6. Preserving the Rule of Law , supra note 4 at 388. 7. The Hon. Leonard B. Sand, District Judge, U.S. District Court for the Southern District of New York, Professor Martin Flaherty, Co-Director of the Crowley Program at Fordham Law School, and Robert Quinn, Director of Scholars at Risk at the University of Chicago, each of whom participated in the 1994 mission, also contributed.

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Events since 2000 tend to confirm our impression that the most serious threats to Hong Kong come from within. A series of statements, actions, omissions and policies of the HKSAR administration and persons connected with it give on the whole an impression of an administration insufficiently attuned to its essential role in preserving Hong Kong’s side of the “one country, two systems” relationship. These include acts harmful to respect for the rule of law, the most visible of which we addressed in our prior report, the Administration’s original willingness to undermine the Court of Final Appeal by seeking the “interpretation” of the NPCSC in the right of abode cases. Also included are the Administration’s urging the CFA to invite NPCSC intervention in subsequent cases and the Administration’s threatening to seek NPCSC intervention on its own in future cases without the procedural safeguards or other limits which are hallmarks of the common law tradition. The Administration’s general lack of transparency, particularly in its evaluative and deliberative processes, may have magnified the harmful effects of these positions, and raises concerns in a number of other areas, including arrangements relating to Basic Law Article 23, rendition, or other cross-border agreements.8 Certain of the Administration’s actions may also be undermining fundamental rights, including the Administration’s resistance to electoral reforms, rolling back democratic development by eliminating the Munici- pal Councils and reinstating appointed members to the District Councils, selective uses of the Public Order Ordinance and immigration offices to restrict expression and assembly, and disparaging statements by administration officials seemingly aimed at chilling the expressive activities of the public, including members of the media, academics, spiritual groups (including Catholics and Falun Gong practitioners) and social advocates. Of course we recognize always that we are outsiders to many of the events and processes of Hong Kong. As such we may be limited, or perhaps even wrong, in our impressions. We cannot know, for example, whether

8. As this report was going to press, a major controversy had erupted in Hong Kong over the imminent introduction of proposed security laws. On September 24, 2002, the Hong Kong administration began the process by circulating a consultation paper entitled, “Proposals to Implement Article 23 of the Basic Law.” Article 23 among other things provides that the Hong Kong government “shall enact laws on its own to prohibit any act of treason, secession, sedition [or] subversion against the Central People’s government.” The proposals have generated significant concerns with respect to a number of fundamental rights, including, among others, freedom of association, freedom of expression, and privacy. Conversely, the government has defended these proposals as reasonable security measures. The Association notes the human rights concerns that have been raised and will continue to monitor these developments closely. For background on Article 23, see infra at 409-410.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 403 F U N D A M E N T A L R I G H T S I N H O N G K O N G the Administration’s efforts on behalf of Hong Kong’s autonomy, the rule of law, and the rights of its residents are not significantly more robust in private than in the public fora to which we have access. They may well be. It is not our intention to deny our limits, rather, it is out of respect for them we solicited input from a wide section of individuals and groups in Hong Kong. We are grateful for all that they have shared and hope they will forgive any errors we may make, which are entirely our own. In accepting our status as outsiders we offer that which we hope will be of value, that which is of value to any society undergoing the transfor- mation currently apace in Hong Kong—an outsider’s perspective. We do so in an on-going spirit of friendship and cooperation, hoping to increase dialogue and understanding within and between our two great cities.

II. PRESERVING THE RULE OF LAW A. Introduction The Association’s most enduring concern, reflected in our 1995 mission and 1999 follow-up with the Crowley Program, has been with the preservation of the rule of law as Hong Kong had known it prior to the handover. During our last visit, nothing so dominated the rule of law question as the “right of abode” controversy. In the landmark cases of Ng Ka Ling and Chan Kam Nga, the Court of Final Appeal had interpreted Articles 22 and 24 of the Basic Law to invalidate SAR Ordinances that restricted the right to claim Hong Kong residence to 1) holders of mainland issued certificates of entitlement; 2) children born after the right of abode had vested in at least one parent; and 3) legitimate children of at least one parent possessing the right. Citing fears of 1.67 million mainlanders claiming the right of abode under the CFA’s judgments—a figure that was vigorously contested—the Chief Executive issued a report seeking an “interpretation” of Articles 22 and 24 by the Standing Committee of the National People’s Congress (NPCSC) under a procedure ostensibly set out in Article 158. The NPCSC responded with a reinterpretation that reinstated the restrictions that the CFA had struck down. The NPCSC based its conclusion on mainland legal principles relying on the “true legislative intent” of the Basic Law and also indicated that the CFA should have referred interpretation of the relevant articles to it during the litigation. While the reinterpretation let stand the CFA’s judgment as to the actual parties in the cases, it mandated that the SAR’s courts “adhere to this Interpretation” in all future proceedings.

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It was amid these events that the Association and the Crowley Pro- gram conducted its joint mission. As our report noted, a central purpose of the mission was to fulfill the Association’s earlier commitment to continue monitoring developments in Hong Kong beyond July 1, 1997 so that “questions relating to the preservation of the rule of law not be overlooked or compromised because attention is focused elsewhere.” Our report concluded that “the right of abode controversy represents an assault on [Hong Kong’s common law] legal system that merits the attention and concern of lawyers around the world.” The Report further noted that, “Other cases working their way through the Hong Kong judiciary may soon give the HKSAR leadership an opportunity to demonstrate whether reinterpretation will be an extraordinary measure.” It concluded that should the controversy turn out to have been an isolated event, as the Adminis- tration maintained, the damage done would “prove neither fundamental nor lasting.” If, however, “further requests lead to further reinterpreta- tions, then Hong Kong’s common law traditions will continue to give way to mainland legal conceptions, further undermining China’s “One Country-Two Systems” pledge. Nearly three years later the right of abode Interpretation remains an isolated event, yet its effects linger. Almost all of the responses to our request for information pointed out that, as a general matter, the rule of law in Hong Kong remains strong and the common law system continues intact. Moreover, the HKSAR administration has yet to seek a interpretation from the NPCSC from a final judgment of the CFA. Yet cause for concern remains on several grounds. First, no subsequent reinterpretation has taken place in part because the CFA has ruled in favor of the HKSAR administration’s position on most significant issues involving the Basic Law since the original right of abode decisions. In addition, in certain instances in which an adverse ruling was perceived as likely, there have been both formal and informal indications that the Administration would seek the intervention of the NPCSC, either through a interpretation after a judgment or an Article 158 interpretation during the course of litigation. We note that before many of these developments the UN Rapporteur on the Independence of Lawyers and Judges indicated that the original reinterpretation should not be viewed as an encroachment on the CFA’s independence. Even earlier, however, the UN Human Rights Committee expressed serious concern about both the reinterpretation and the possibility of future [re]interpretations. As the Chair of the Hong Kong Bar Association put it, the possibility of interpretation “was and is a Damocles sword to our CFA.”

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B. Subsequent Court of Final Appeal Judgments 1. Right of Abode Cases Lau Kong Yung v. The Director of Immigration. The first follow-up case to reach the CFA, Lau Kong Yung directly raised the issue of the Interpretation’s legality. In light of the original right of abode decisions, seventeen mainlanders who had illegally overstayed the terms of their admission to Hong Kong sought to invalidate removal orders that had been issued against them on the grounds that they now qualified for the right of abode as interpreted by the CFA. While the case was on appeal to the CFA, the NPCSC issued its Interpretation, apparently invalidating the underlying basis for the claimants’ right of abode. In response, the claimants directly questioned the NPCSC’s authority to act. In December 1999 the CFA held for the government, ruling that the NPCSC had plenary authority to interpret the Basic Law, and that the Interpretation be deemed effective July 1, 1997, the date of Hong Kong’s handover to the PRC. Conversely, the Court did not rule as to whether the HKSAR’s request for an Interpretation com- ported with the Basic Law, nor did it address its own decision not to refer the interpretation of the Basic Law in the original right of abode cases. Reactions to Lau Kong Yung largely echoed earlier reactions to the Inter- pretation itself. The HKSAR administration heralded the decision as a vindication of its decision to go to the NPCSC, though it continued to con- tend that such requests would not be made lightly. Conversely, many commentators argued that the CFA had been presented with an invidious choice of either upholding the Interpretation’s effective diminution of the Court’s interpretive authority or instigating a constitutional crisis with Beijing. The Director of Immigration v. Chong Fung-Yuen. On July 20, 2000 the CFA handed down three judgments resolving right of abode issues previously left open. Of these Chong Fung-Yuen stands out first, because it remains the only follow-up decision in which the HKSAR administration sustained a clear defeat and second, because the CFA rejected the Administration’s formal requests for an Article 158 interpretation from the NPCSC, which provides for judicial referral while a case is still proceeding. Chong Fung- Yuen, popularly called “the toddler case,” involved the assertion of the right of abode on behalf of a three-year old born in Hong Kong to parents of mainland nationality who were visiting the SAR on a lawful two- way permit. Expressly invoking common law reliance on text, context, and purpose, the CFA held for the claimant under Article 24(2)(1), which provides that “Chinese citizens born in Hong Kong” shall have the right of permanent residence. Perhaps more important, the Court rejected the Administration’s request for a judicial reference of Article 24(2)(1) to the

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NPCSC pursuant to Article 158. Further, the Court rejected the government’s position that the CFA in effect broaden its criteria for making a judicial reference beyond the standards it set forth in the original right of abode judgments. Previously, the CFA had held that referral should take place only when 1) a disputed Basic Law provision or provisions predominantly concerned affairs that are the responsibility of the mainland government or concerned the relationship between the central government and the SAR, and 2) interpretation of such a provision or provisions was necessary to resolve the case. By contrast, the government in Chong Fung-Yuen argued that the CFA refer any Basic Law provision whose implementation would have a substantive (real) effect on HK/PRC affairs. Commentators expressed concern that the government’s broader test would lead to more frequent Article 158 referral, including references concerning other Basic Law provisions protecting fundamental rights. The CFA’s decision assuaged these fears by retaining the older test and in doing so on the basis of common law interpretation. The Administration’s readiness to advance a broader test for referral nonetheless generated continuing concern. Tam Nga Yin & Chan Wai Wha v. The Director of Immigration; Xie Xiaoyi v. The Director of Immigration. In these consolidated cases, the CFA upheld the government’s more restrictive interpretation of the right of abode with regard to adopted children, yet again stressed its commitment to common law principles and rejected the Administration’s request for an Article 158 judicial referral to the NPCSC. These cases concerned three children of Chinese nationality born outside of Hong Kong of non-HKSAR permanent residents but adopted by HKSAR permanent residents. These claimants argued that they qualified for the right of abode under Article 24(2)(3), which expressly granted the right to children “born” of HKSAR permanent residents. Apart from its request for a referral, the government countered that the NPCSC’s previous Interpretation already resolved the matter against the adoptees and that in any case Article 24(2)(3) did not extend the right beyond “natural” children. The CFA rejected all but the final argument. The Court first held that the Interpretation did not address the question of adopted children. Referring to its analysis released the same day in Chong Fung-Yuen, the CFA further declared that the issue did not require referral. On the merits the Court nonetheless did hold that the right of abode did not extend to adoptees. It stressed that it reached this conclusion, however, solely on the basis of common law principles. While the decision showed a willingness to rely on the Interna- tional Covenant on Civil and Political Rights (ICCPR) to hold for the adoptees, it ultimately reasoned that the Article 24(2)(3) express use of

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 407 F U N D A M E N T A L R I G H T S I N H O N G K O N G the word “born” precluded this possibility. Justice Bokhary filed a lone dissent stating that the language of the provision did not prevent the application of more general principles valuing family unity regardless of whether children are biological or adopted. Fateh Muhammad v. The Commissioner of Registration. In this judgment, the last of the three delivered on July 20, 2000, the CFA again employed common law interpretative principles to uphold the HKSAR’s more restrictive reading of the Basic Law. The appellant, Fateh Muhammad, was a Pakistani who had lived in Hong Kong since 1962. On this basis Muhammad claimed the right of permanent residence under Article 24(2)(4), which accords the right of abode to “[p]ersons not of Chinese nationality” who have lawfully entered and been resident in Hong Kong “for a continuous period of not less than seven years . . . before of after the establishment of the Hong Kong Special Administrative Region.” The Administration denied Muhammad a permanent identity card, arguing that he did not qualify for the right of abode since he had been in prison from 1994 to 1997 serving a sentence for forgery. The CFA agreed with the Administration’s position that under Article 24(2)(4), lawful imprison- ment does not count toward the required seven year residences require- ment and that the seven years must come either immediately before or after the July 1, 1997 handover date. Ng Siu Tung & others v. The Director of Immigration; Li Shuk Fan v. The Director of Immigration; Sin Hoi Chu & others v. The Director of Immigration. The CFA resolved the last significant—and perhaps most keenly awaited— right of abode cases earlier this year, again ruling generally in favor of the HKSAR administration but again basing its ruling on common law interpretive principles. These cases involved the claims of 5,073 individuals who argued that the NPCSC Interpretation should not affect their rightful status as permanent residents under the original right of abode cases, Ng Ka Ling and Chan Kam Nga. The claimants in part based their position on undisputed public statements made by senior government official and through specific communications by the Legal Aid Department. These statements and communications assured those who were considering joining the original litigation that the HKSAR authorities would abide by whatever judgment the CFA handed down. When instead the HKSAR administration sought and obtained the NPCSC Interpretation letting stand the CFA judgments as to the parties to the right of abode cases, but otherwise voiding the Court’s initial interpretation, the some 5,000 brought suit to remain in Hong Kong. In particular, they asserted that 1) that under Article 158(3)

T H E R E C O R D 408 I N T E R N A T I O N A L H U M A N R I G H T S they were covered by the original right of abode decisions; 2) that the official statements gave them a legitimate expectation that they would be treated in the same way as the actual parties to the right of abode cases; 3) that it would be an abuse of process for the immigration authorities to execute removal orders; 4) certain claimants were not properly subject to the Interpretation based upon when they arrived in Hong Kong; and that 5) certain claimants had a legitimate expectation that they would be treated as if they were parties to the original cases under a policy “concession” announced by the Chief Executive shortly after the Interpretation. Continuing to stress its commitment to common law principles, the CFA’s lengthy opinion rejected most though not all of the appellants claims. First, the Court held that a proper construction of Article 158(3)’s provision that NPCSC interpretations “shall not affect judgments previously rendered” refers only to the decision affecting the parties to the original litigation rather than to the rationale of the decision. Second, the CFA ruled that the assurances given by senior HKSAR officials did not create a legitimate expectation sufficient to compel the authorities to treat the appellants as if they were parties to the original cases. By contrast, the holding stated that specific assurances to individuals from the Legal Aid Department had created expectations that the immigration authorities had to consider. Third, the ruling rejected the claimants’ abuse of process argument. Fourth, the Court ruled that those appellants who were resident in Hong Kong before the handover and who were born after one of their parents had become a permanent resident under Article 24(2)(3) were entitled to the right of abode, but no others. Finally, the CFA held that the Administration’s post-Interpretation policy “concession” that it would permit those who advanced a right of abode claim with the HKSAR authorities during the original litigation had been fairly implemented in general, but in certain instances had been too narrowly applied.9 Justice Bokhary filed a lengthy dissent stating that he would grant relief to all of the appellants. The dissent’s initial ground was that Article 158(3) language that an interpretation shall not affect “judgments previously rendered” should properly be read to preserve the original right of abode

9. In implementing the decision, the Immigration Department has submitted each case to the courts for final determination under the standards set down by the CFA. It had also relied on “voluntary” compliance (averaging about 50 per day) until June, when it arrested several persons in their homes early in the morning. After these arrests, the average numbers of “volunteers” for deportation rose to approximately 200 a day. At the same time, the Immigration Depart- ment has entered into an informal agreement with the PRC to give preference in issuing exit permits to those deported children under the age of eighteen, the younger receiving the greater preference.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 409 F U N D A M E N T A L R I G H T S I N H O N G K O N G to those who could have become parties at the time. In Justice Bokhary’s view, this position constituted a “middle ground” between interpreting the language of the previous judgments as applying only to the original parties on one hand or to a judgment’s rationale as it might apply to any subsequent litigants seeking to invoke it as precedent on the other hand. In addition, the dissent further asserted that all removal orders should be quashed, and that the immigration authorities should permit all appellants to remain in Hong Kong, based upon the legitimate expectations create by the official assurances they generally received during the original litigation.

2. Other Issues: Freedom of Expression HKSAR v. Ng Kung Siu, an earlier CFA ruling, handed down at the end of 1999, effectively avoided a constitutional confrontation in a case involving not the right of abode, but freedom of speech. Ng Kung Siu arose when two individuals peacefully protesting the 1989 killings in Tiananmen Square were convicted of defacing the PRC and HKSAR flags in violation of Hong Kong ordinances, one of which incorporated the PRC’s Flag Law. The defendants challenged these laws on the ground that they violated the right of free speech under Basic Law Article 39, which itself incorporates the free speech provisions of ICCPR Article 19. The Court of Appeal accepted these challenges and reversed the convictions. The resulting appeal to the CFA prompted a number of observers to speculate that Beijing would be far more concerned about the treatment of the national flag than with the migration of mainlanders to Hong Kong. Speculation further ran that such concern would either lead to another HKSAR request for an interpretation or even NPCSC intervention on its own initiative. These fears went unrealized when the CFA in December 1999 ruled for the government. Unanimously holding that the Basic Law incorporated the ICCPR, the Court nonetheless held that the flag desecration provisions fell into the category of permissible restrictions of free speech that were “necessary” to further “public order.” Reaction to Ng Kung Siu was generally muted in comparison to the original right of abode cases. Certain press reports, however, did cite “Government sources” before the hearing in the case as making the troubling suggestion of a “contingency plan” of seeking an Interpretation in the event the CFA invalidated the ordinances.

C. Other Rule of Law Concerns A number of other concerns relating the rule of law, respect for legal process and legal obligations, particularly treaty obligations, have been mentioned in our earlier reports and warrant brief mention here. The

T H E R E C O R D 410 I N T E R N A T I O N A L H U M A N R I G H T S first is continuing concern about possible legislation to implement Article 23 of the Basic Law. Article 23 requires Hong Kong to enact its own laws on treason, sedition, secession, subversion, theft of state secrets, a prohibition against foreign political organizations or bodies conducting political activities in Hong Kong, and a prohibition against Hong Kong political organizations or bodies from having ties with foreign counterparts. Many of the submissions received expressed concern that the HKSAR government was preparing to propose legislation to implement Article 23 of the Basic Law.10 These concerns were recently heightened with passage in July of this year of the United Nations (Anti-Terrorism Measures) Bill. The government stated that it introduced this legislation to implement U.N. recommendations for the passage of laws to combat terrorism. Critics, including the Hong Kong Bar Association, nonetheless criticized the measure for being rushed through LegCo, for potentially chilling the press by criminalizing false reports of terrorism, and for impinging on attorney/client privilege by forcing lawyers to reveal confidential information. A second concern is that of rendition and other custody arrangements between the HKSAR and the mainland. Hong Kong and mainland authorities have entered a preliminary agreement requiring notification when residents of either territory are held in the other, and mainland security officials are supposed to inform Hong Kong police if they wish to enter Hong Kong to investigate crimes and are to be accompanied by Hong Kong police while in Hong Kong. Nevertheless, there have been media reports that mainland public security officials had taken HKSAR residents in their custody from the mainland, into Hong Kong, without alerting HKSAR authorities. The security officials allegedly coerced the HKSAR residents to give them access to their homes and bank accounts, claiming that these actions were for the purpose of advancing criminal investiga- tions. There have also been reports of secret talks between the HKSAR administration and the Central People’s Government (CPG) concerning a formal rendition agreement. The Administration has thus far refused to discuss such talks publicly, promising only “consultation” after negotia- tions conclude and before implementation of any relevant legislation. Because such agreement may include promises by the HKSAR to render to mainland authorities persons in Hong Kong accused of crimes in the mainland, including political crimes and crimes subject to capital punishment, such agreement raises serious concerns for Hong Kong’s observance of its

10. See Hong Kong Human Rights Monitor, “ A ticking time bomb? Article 23, Security Law and Human Rights in Hong Kong.”

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 411 F U N D A M E N T A L R I G H T S I N H O N G K O N G obligations under international treaties, as well as the respect of fundamental rights of people in Hong Kong generally. A third concern is the denial of visas and other restrictions on travel. This concern includes actions taken by the HKSAR administration in restricting travel into the SAR, apparently for the purpose of restricting free expression of opinion or faith within the territory. The Immigration De- partment banned 103 followers of Falun Gong, an organization outlawed on the mainland, from entering Hong Kong in advance of the Fortune Global Forum. The followers had intended to demonstrate and protest the treatment of fellow practitioners on the mainland. Former Chinese student leaders, active in the 1989 student movement and now living in exile have been repeatedly been denied permission to attend an annual June 4th commemoration. These actions suggest acquiescence to direct pressures from the CPG or at a minimum prophylactic measures intended to satisfy perceived interests of the CPG. This concern includes also the HKSAR administration’s failure to protest actions by the CPG against HKSAR residents. We received reports for example that Ms. Margaret Ng, Legislative Councilor, barrister and Vice- Chair of the Hong Kong branch of the International Commission of Jurists was on a “blacklist” of HKSAR residents maintained by the Central People’s Government. This resulted in her being barred from the mainland despite possessing a valid PRC visa and travel documents. We can only surmise that Ms. Ng’s opposition to the Interpretation in the right of abode controversy and vigorous, public criticism of the HKSAR administration’s position on a number of rule of law questions contributed to the Administration’s failure to protest to the CPG. In another highly publicized case Professor Li Shaomin, a US citizen residing in Hong Kong and teaching at the City University of Hong Kong since 1996, was arrested and detained on the mainland on vague charges widely believed to stem from his academic work. Although Li was released to the US in July and allowed to return to Hong Kong in August 2001, it remains un- certain if the HKSAR administration took to any action to protest his arrest and secure Mr. Li’s release. These and similar cases create the impression that the Hong Kong administration is unwilling or unable to assert the rights of Hong Kong people vis a vis mainland authorities.

III. STATE OF DEMOCRACY In our prior report, we expressed a view that the Administration’s actions in the right of abode controversy “represent[ed] a missed oppor-

T H E R E C O R D 412 I N T E R N A T I O N A L H U M A N R I G H T S tunity to strengthen democratic values in Hong Kong by encouraging public participation in the debate,” and specifically noted that the “deliberate foreclosure of representatives of pro-democracy groups” from participation in the process “does not bode well for the development of democratic institutions in Hong Kong.” We concluded by quoting provisions in Article 68 of the Basic Law and Article 21 of the BORO calling for “universal and equal suffrage,” and urged the Administration and members of the Legislative Council (“LegCo”) “to support measures that would transform the institutions of government in the HKSAR into ones more representative of the democratically expressed will of the people of Hong Kong.” Today there is evidence of only small progress in Hong Kong’s democratic development, specifically the development of greater accountability within the executive by the adoption of a ministerial system. As of this writing, the system is in its infancy. It does seem to offer some promise of increasing the Chief Executive’s authority over administrative officers. It would seem to offer less by way of increasing the accountability, transparency and responsiveness of the Administration to the LegCo or the public. At the same time, there are reasons for concern. The Legislative Council, most recently elected in late 2000 and not due for reelection until 2004, continues to be dominated by the functional constituency framework. The Administration, having previously disbanded the Municipal Coun- cils in 1999, reintroduced appointed seats to the District Councils in 2000. Most significantly, for only the second time Hong Kong selected a Chief Executive. An Election Committee of approximately 800 persons out of Hong Kong’s potential electorate of approximately 3 million selected the current Chief Executive, Mr. Tung, in an “election” in which he ran unopposed. This fact alone demonstrates that democracy in Hong Kong remains lacking in significant ways.

A. Selection and Accountability of the Chief Executive 1. Chief Executive Selection On March 24, 2002, Mr. Tung Chee Hwa was selected to a second term as the Chief Executive of the HKSAR. In the prior November, several thousand persons marched in a “no-Tung” campaign. Opinion polls in advance of the selection indicated that 61% of Hong Kong residents did not want Mr. Tung to run again. However, universal and equal suffrage is not part of the current system. Mr. Tung was selected by an Election Com- mittee consisting of approximately 800 persons. Although this number was up from the 400 members who selected Mr. Tung for his first term, it

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 413 F U N D A M E N T A L R I G H T S I N H O N G K O N G obviously excludes the vast majority of Hong Kong’s approximately 3 million residents of voting age.11 Mr. Tung ran unopposed, despite public expressions of dissatisfaction, because no other candidate received the 100 votes from the Election Committee needed for nomination. Moreover, even if the Election Committee had nominated and then selected an alternative candidate, that selection would have been subject to the approval of the Central People’s Government. This in effect gives the CPG the ability to veto any candidate selected by Hong Kong, even when the selection is made by the under-representative Election Committee. The selection took place under the Chief Executive Election Ordinance, introduced by the Administration in May and passed in July 2001. Several provisions of the ordinance triggered significant controversy and remain areas of concern. Under the ordinance, for example, the Chief Executive cannot belong to a political party. In the first CE selection in 1997, all potential candidates had to be nominated in their individual capacity, meaning anyone with a party affiliation had to resign from the party first. The new bill allows party members to run, but if selected, the winning candidate must resign and must declare that he or she is not a member of a political party and will not become a member of such party. This restric- tion may weaken the ability of parties to organize support, and almost certainly contributed to the absence of any candidate other than Mr. Tung. The fourth clause of the Election Ordinance is a particular concern. It deals with vacancy in the office of the Chief Executive. As originally proposed by the Administration, the language of the ordinance appeared to permit the CPG to remove the Chief Executive. The language indicated that the office of the Chief Executive would become vacant “if the Cen- tral People’s Government removes him from office … under any other circumstances.” Opponents charged that this language would empower the CPG to remove the CE for reasons that were not in the Basic Law, which contains explicit provisions for resignation and impeachment. The HKSAR administration responded to criticism by arguing in favor of a plenary power of removal for the CPG rooted in the CE’s accountability to the CPG under Article 43 of the Basic Law and arising by “necessary implication from a number of articles.” Commentators including the Hong

11. Clause 8 of the Election Ordinance also merits brief mention. It provided for the Election Committee selecting the Chief Executive to be the same Election Committee that was constituted under the Legislative Council Ordinance on July 14, 2000, which selected six members of the Legislative Council. Critics note that this provision further concentrates power that should belong to the general electorate of Hong Kong in the hands of a small group of 800 persons shaping both the executive and legislative branches of the HKSAR government.

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Kong Bar Association and legislative councilors considered the Administration’s stance yet another surrender of the autonomy of the HKSAR. Although the provision was subsequently amended in a compromise to “if the Central People’s Government removes the Chief Executive from office in accordance with the Basic Law,” we find the Administration’s position troubling. It appears as one more indication of the HKSAR administration’s willingness to cede significant elements of Hong Kong’s autonomy to the CPG. Whether the Administration’s position was a response to direct influence of CPG officials, acting officially or otherwise, is impossible to assess. Certainly there have been reports of acts by PRC officials seeking to influence the behavior of the HKSAR administration and the people of Hong Kong. In April 2000, for example, a Hong Kong- based PRC official stated that Hong Kong media should not report views that advocate Taiwan’s independence as “normal” news. In the next month, an official suggested that Hong Kong should not do business with pro- independence Taiwan companies. In September and October of that year, mainland officials publicly cautioned Hong Kong’s 250,000 Catholics to keep “low key” any religious observances celebrating the Pope’s canoniza- tion of 120 Chinese martyrs.12 But there are reports also of members of the Hong Kong Administra- tion pressuring Hong Kong residents in ways that appear intended to satisfy the Administration’s own interests in restricting the development of democratic practices. A particularly troubling example involved allegations by a Hong Kong University academic and opinion pollster, Dr. Rob- ert Chung, that he was pressured by the Vice-Chancellor and the Pro-Vice Chancellor of the University to discontinue polling regarding the popularity of the Chief Executive. (As noted earlier, polling had revealed significant dissatisfaction with Mr. Tung and the Administration.) After the allegations erupted in the media, the university launched an inquiry which concluded that the university officials had discussed with Dr. Chung his polling activities, particularly the polls about the popularity of the Chief Executive, after they themselves had been visited by the Chief Executive’s senior special assistant, Mr. Andrew Lo. In their 74 page report to the public, the inquiry panel found Dr. Chung to be “an honest witness who was telling the truth in relation to the matters he is complaining about,” whereas it found Mr. Lo to be a “poor and untruthful witness,” and con-

12. In August 1999, mainland authorities prevented Hong Kong from allowing a papal visit to the territory because the Vatican maintains diplomatic relations with Taiwan. The fact that a papal visit had occurred in 1970 while Hong Kong was under British sovereignty was cited by some as further evidence of erosion of Hong Kong’s autonomy.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 415 F U N D A M E N T A L R I G H T S I N H O N G K O N G cluded that neither Lo nor the Vice Chancellor “disclosed the full and truthful extent” of their actions. The panel concluded that the Vice Chan- cellor had, at the intervention of Mr. Lo, attempted to push Dr. Chung into discontinuing his polling work, and that the messages relayed to Dr. Chung were “calculated to inhibit his academic freedom.” The inquiry further revealed that Mr. Lo had made similar visits to other universities in Hong Kong. The Vice-Chancellor resigned on September 6, 2000. De- spite public calls for his resignation, Mr. Lo remained an aide to Mr. Tung. Mr. Tung had refused to testify before the investigation panel, saying that he had “the responsibility to protect the dignity of the post and ensure [that] the government can operate efficiently and normally.” Crit- ics noted that the controversy itself has raised questions about the dignity and integrity of the office of the chief executive, and that Mr. Tung could have restored respect for the office by volunteering to testify before the panel, especially since Tung claimed that he had nothing to hide. We should note that this assault on academic freedom in Hong Kong unfolded at a time when scholars in the mainland faced ever more serious threats. During this time, a number of ethnic-Chinese scholars with residence in the HKSAR or outside of China were arrested and detained by PRC authorities. Several, including Professor Li mentioned earlier and Dr. Xu Zerong, an Oxford-educated historian and permanent resident of the HKSAR, were charged with crimes related to espionage or the mishandling of “state secrets,” a term widely used on the mainland to include vaguely defined bodies of information which would not be considered secret in Hong Kong or any other open society. Dr. Xu, for example, was detained in June 2000 reportedly for publishing an article discussing a 1950s era radio station hidden in China’s Hunan province that broadcast commu- nist propaganda into Malaysia. Independent observations of these arrests strongly suggest efforts to chill academic inquiry into areas considered sensitive to mainland authorities, such as Taiwan, Tibet, and social, economic or political reform of the mainland system. These cases bear heavily on Hong Kong, impeding not only its political development but social, cultural and economic activities as well. Many Hong Kong residents have family and business interests in the mainland maintained by regular and frequent visits. These people’s rights are no doubt curtailed if they reasonably fear being arrested on visits to the mainland because of teaching, writing or other expressive activity in Hong Kong. They are left with two equally unacceptable options. They may continue to exercise their expressive rights, as guaranteed by the Basic Law and international instruments applicable to Hong Kong, but accept restrictions on travel to the main-

T H E R E C O R D 416 I N T E R N A T I O N A L H U M A N R I G H T S land (and derivative restrictions on family, business or other interests). Or they may restrict their expressive activity in Hong Kong in an attempt to avoid unwanted attention of mainland authorities and the imposi- tion of restrictions on access and travel into and out of the mainland. The uncertainty of the situation is no doubt heightened by the HKSAR administration’s apparent unwillingness to intervene on behalf of Hong Kong residents on the mainland, like Professor Li and Dr. Xu.13

2. Accountability System The Chief Executive has recognized the need to improve accountability of the executive. In his October 2000 policy address, Mr. Tung proposed an internal study and in 2001 he unveiled a skeletal proposal for a ministerial-type system. On April 17, 2002, he formally announced a new “Principal Officials Accountability System,” seeking to have it in place by the beginning of his second term on July 1, 2002. A marked lack of transparency in the process of developing the system and the short period for review prior to its debate in the Legislative Council in May 2002 makes it difficult to discuss the POAS or to evaluate its likely effect, frustrating not only our examination but many legislators and others in Hong Kong. We do note, however, that in a political system such as Hong Kong with three coordinate branches—executive, legislative and judicial—we understand “accountability” of the executive to require examination on three levels. First is accountability within the executive itself. That is, accountability of executive officers—including department heads and their senior depu- ties—to a chief executive or senior executive body. Second is accountability of the executive branch to the legislative branch, the legislative branch being most representative of the electorate when constituted by a system of equal and universal suffrage. Third is accountability of the executive directly to an informed electorate, again enjoying equal and universal suffrage. The proposed ministerial system appears to be a step in the direction of accountability on the first level—within the executive branch itself. Under the system, the Chief Executive would assign ministerial portfolios to persons then charged with overseeing government departments and offices previously headed by senior civil servants. Ministers would likely also become members of the Executive Council, although not all members of the Council would hold portfolios. Although critics charge that

13. In August 2001, Li Shaomin was allowed to return to Hong Kong after being convicted on the mainland of a national-security related offense and expelled to the United States. Xu Zerong was convicted in January 2002 and sentenced to 13 years. He remains imprisoned in China.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 417 F U N D A M E N T A L R I G H T S I N H O N G K O N G the system will increase the power of the Chief Executive by allowing him to install his own people in the government and to remove them at will, we do not find these aspects unusual. Enhancing the Chief Executive’s authority in these areas will no doubt improve his ability to design and implement government policy. At least to this extent the proposal garnered significant public support. What is lacking, however, is any improvement in the accountability of the Chief Executive on the second or third level, that is to the Legislative Council or to the electorate. Moreover, there is concern that the system will empower the Chief Executive to manipulate appointments to erode further the already weak position of the LegCo, for example by appointing select Legislative Council members as ministers “without portfolio,” without responsibilities but beholden to the Chief Executive and therefore more likely to support government legislative initiatives. Critics rightly argue that true accountability—that is, accountability on all three levels—will require reforming the methods by which the Chief Executive and the Legislative Council are elected by bringing them in line with the principles of universal and equal suffrage, principles recognized in the Basic Law and the BORO. Such a system would give the HKSAR government greater legitimacy, and would no doubt strengthen the positions of the government vis a vis domestic constituencies in Hong Kong as well as in advocating the rights and interests of Hong Kong residents before mainland authorities. In his first term, however, Mr. Tung’s administration showed no signs of supporting electoral reform. There is little reason to expect the Administration’s support for such reform during his second term. In response to our request for submissions Secretary for Con- stitutional Affairs Patrick Chan, while recognizing the ultimate goals of universal and equal suffrage, indicated that the Administration would await the outcome of the 2004 Legislative Council elections before addressing any changes in the methods of election. Meanwhile, no proposal has been considered or introduced to secure the election of the Chief Executive by a broadly based electorate or to implement the stated goal of universal suffrage for LegCo after 2007, when the third term of Legco expires with no current provision regarding members’ reelection. Until these are implemented, a truly democratic society and accountable government will remain an unrealized hope. In the absence of electoral reform, some have urged the Chief Execu- tive to develop a practice of consulting with the Legislative Council on appointments and removals of senior executive officers. Others have urged a practice of removing top officials when the public has lost confidence in them. Had they been in place, such practices may have prevented or miti-

T H E R E C O R D 418 I N T E R N A T I O N A L H U M A N R I G H T S gated certain controversies which erupted during the reporting period, including the LegCo’s vote of no-confidence taken against Administration housing officials in 2000 and speculation surrounding the departure from the Administration in 2001 of Chief Secretary Anson Chan, widely seen as a key proponent of Hong Kong’s autonomy and international character.

B. Legislative & District Council Elections 1. Legislative Council Elections Hong Kong last held legislative elections in September 2000. Of the sixty members returned, thirty were returned by functional constituencies whose electors were leaders or members of different sectors of the community totaling about 300,000 persons. Twenty-four members were elected by geographical constituencies whose electors were registered permanent residents of the HKSAR, totaling about 3 million. As mentioned earlier, six members were returned by the Election Committee of about 800 persons. The next elections for the Legislative Council will be held in 2004. Absent any changes before then, functional constituencies representing largely business interests will remain a feature and will elect thirty of sixty members. The six seats returned by the Election Committee in the 2000 elections will be eliminated, and the remaining 30 seats will be returned by geographic constituencies. Thus it is likely that at least through 2008 the people of Hong Kong will be limited to returning not more than half of their legislators through direct, universal suffrage. We share concerns expressed repeatedly within Hong Kong and in the international community that the electoral system for the Legislative Council does not comply with Hong Kong’s obligations under the ICCPR. For example, the UN Human Rights Commit- tee, the interpretive body for the Convention, noted in both 1995 and 1999 that “the electoral system for the Legislative Council does not comply with articles 2, paragraphs 1, 25 and 26 of the Covenant.” The Committee urged the HKSAR to “take all necessary measures to maintain and strengthen democratic representation of HKSAR residents in public affairs.”14

14. The Concluding Observations of the Human Rights Committee, dated November 4, 1999; see also , The Concluding Observations of the Human Rights Committee, dated November 9, 1995 (“[O]nce an elected Legislative Council is established, its election must conform to article 25, as well as articles 2, 3 and 26 of the Covenant. It underscores in particular that only 20 of 60 seats in the Legislative Council are subject to direct popular election and that the concept of functional constituencies, which gives undue weight to the views of the business community, discriminates among voters on the basis of property and functions. This clearly constitutes a violation of articles 2, paragraph 1, 25(b) and 26.”).

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2. District Council Elections There are 18 District Councils (formerly District Boards) in the HKSAR charged to advise the government on matters affecting the well-being of the people working and living in the districts, generally in the area of minor environmental improvement works, provision of cultural and entertainment activities, and local and community issues. In November 1999 the first post-handover elections for District Councils were held. The members’ term of office of four years started January 2000. Three hundred and ninety members were returned by direct election. Changing recent practice, the government reintroduced appointed members, adding 102 members selected by the executive.15 The reintroduction of appointed members, coupled with the Administration’s earlier elimination of the Municipal Councils a year earlier, raised questions about the Administration’s commitment to democratic principles and marked for some a step backward.16

IV. FUNDAMENTAL RIGHTS ISSUES In our prior report, we noted that the right of abode controversy and reinterpretation process suggested a significant change in the relationship between the mainland system and the HKSAR, which came at the expense of a fundamental right explicitly included in the language of the Basic Law. This raised for us concern that other rights contained in the Basic Law could be at risk, in light of which we examined several areas of concern including discrimination on the basis of gender, race, or national origin. We return to this topic briefly below, as well as examining several issues in the area of free expression.

A. Discrimination In our prior report, we noted that “[a]nti-discrimination protection is another area in which Hong Kong’s internal obligations have been less than fully honored.” We noted that administration’s limited implementation of existing legislation banning discrimination on the basis of gender and disability, and “its resistance to the enactment of legislation prohibiting racial discrimination, cast doubt on its commitment to eliminating discrimination.”

15. A total of 519 District Council members includes the 390 elected, 102 appointed, and 27 ex officio members. 16. The UN Human Rights Committee had urged the government to reconsider the abolition of the Municipal Councils, expressing concern that the step would “further diminish the opportunity of HKSAR residents to take part in the conduct of public affairs, that is guaranteed under article 25.”

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Two years later, the government continues to oppose legislation prohibiting private actors from discriminating on the basis of age, race, or sexual orientation. The Administration claims that public opinion is against such legislation, and that government educational measures, consisting largely of voluntary codes of practice, are sufficient to address these issues. With regard to discrimination based on race or ethnicity, the UN Human Rights Committee has repeatedly expressed concern about the absence of legislative remedies to individuals as against private violators. Both the UN Committees on Economic, Social and Cultural Rights and the Com- mittee on the Elimination of Racial Discrimination have likewise examined the government’s existing measures, found them insufficient, and called on the HKSAR to implement legislation to prohibit racial discrimination in the private sector. In May 2001, the UN Economic and Social Committee found the failure of the HKSAR to prohibit race discrimination in the private sector constituted a breach of its obligations under Article 2 of the ICESCR. The Committee called upon the HKSAR government to extend its prohibition of race discrimination into the private sector and requested information on the progress in implementing this recommendation to be submitted by June 30, 2003. (The government was also urged to prohibit discrimination on the basis of sexual orientation and age.) In August 2001, the UN Committee for the Elimination of Ra- cial Discrimination reiterated its concern about the absence of legal provisions protecting persons from racial discrimination by private actors, and again recommended that appropriate legislation be adopted to provide legal remedies and to prohibit discrimination based on race, color, descent, ethnicity or national origin. With regard to discrimination on the basis of gender, a positive development is the establishment of a Women’s Commission in January 2001. The commission is “tasked to promote the well-being and interests of women in Hong Kong,” and includes in its understanding of this charge such activities as advising the Administration on the development of a policies related to the development and advancement of women; review- ing government and private services and identifying priority areas, monitoring and developing new or improved services; preparing surveys and research studies on women’s issues; organizing educational and promo- tional activities; and building communication with local and international women’s groups and service agencies. While it is still too early to evaluate this new institution, we welcome its creation. It significantly addresses one recommendation in our prior report, where we joined the calls of a number of Hong Kong-based hu-

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 421 F U N D A M E N T A L R I G H T S I N H O N G K O N G man rights organizations for the creation of a “women’s bureau within the HKSAR administration, charged with analyzing the effect of all government policies on women as well as drafting policy proposals to promote gender equality.” We invite the members of this new commission to consider also our report’s other recommendations for improving gender equality in Hong Kong, specifically legislative initiatives to address problems of violence against women and of foreign domestic workers who are predominately women from the Philippines, Thailand and Indonesia. As to the latter, we have previously expressed concerns about existing regulations, particularly those governing the extensions of stay by domestic helpers after the completion of contracts. The so-called “two week rule” has been the subject of repeated international attention and criticism, including that of the UN Committee for the Elimination of Racial Dis- crimination which in August 2001 reiterated its earlier concerns regarding possible discriminatory effects of the rule. We would also welcome efforts by the Women’s Commission to press the Administration and the Equal Opportunities Commission, as we had urged in our prior report, to implement readily achievable policy changes “designed to educate women about their rights and available remedies and to encourage the EOC to use its existing powers, especially that of independent investigation.”

B. Freedom of Expression and Association 1. Public Order Ordinance A number of arrests of protesters during the year 2000 led to a public reexamination of the Public Order Ordinance. On June 26, 2000, for example, a demonstration commemorating the first anniversary of the NPCSC’s “reinterpretation” of the CFA’s decision in the right of abode cases ended in scuffles between demonstrators and police. During the scuffle, police used pepper spray against right of abode claimants and student activists. Five student activists were later charged with unlawful assembly under the ordinance, triggering an outpouring of public support for the students and condemnation of the ordinance. Although the charges were subsequently dropped, the Legislative Council held hearings on the ordinance. Opponents of the ordinance objected to a number of its provisions as applied by the government. First, they argued that the notice provision in practice permits police to disperse any gathering, no matter how peaceful or orderly, merely for failure to provide technically valid “notice” under the ordinance. Second, they argued that the notice periods provided in the ordinance (a minimum of 7 days notice) are too long and

T H E R E C O R D 422 I N T E R N A T I O N A L H U M A N R I G H T S lack flexibility necessary to allow organizers of public events to mobilize resources and address current issues in a timely fashion. Third, they objected to the provision that requires organizers of public events to include in the notice the purpose and subject matter of the gathering. Organizers expressed concern that this provision allows permits to be delayed or denied on the basis of political content of the message. They expressed concern also that the provision could lead to permits being granted with conditions narrowly restricting the content of remarks delivered during events to the topics expressly included on the notice statement, providing a basis for police to prevent or disburse a gathering if any participant or even any member of the public gathered at the event raised a topic not explicitly stated in the notice. Fourth, they objected to the provision that allows the police to prevent a meeting or procession on the grounds that it is “in the interest of national security or public safety, public order or the protection of the rights and freedoms of others,” and the similar provision that grants the Chief Executive the power to prohibit “all public gatherings” or a period of up to three months. Opponents argued that both provisions are overbroad and inadequately defined in the ordinance, posing a risk of abuse. Many community organizations not previously concerned with the constitutionality of the ordinance appeared at the hearings to support it, leading commentators to suggest an active, behind-the-scenes effort to create an appearance of “popular” support for the government’s positions. Although it is not possible to determine if this did happen, if true it clearly would have undermined informed public debate on the objec- tions to the ordinance. It also brings to mind similar allegations in the right of abode controversy of organized efforts to misinform public opinion. Both incidents, whether true or not, highlight the importance of expeditious progress toward a system of true accountability, based on universal and equal suffrage, as a means of defending against efforts to manufac- ture legitimacy by manipulating public opinion. In the end, the Secretary for Security rejected calls to amend the ordinance. The Secretary instead introduced a motion before the Legislative Council asking it to “affirm” the Public Order Ordinance as striking the “proper balance” between individual freedom and social order and as being “compatible” with international human right standards. The motion carried in December 2000. One might question the value of the motion on several grounds. First, as noted above, the current Legislative Council includes only twenty-four geographically elected members, the rest being elected by under-representative functional constituencies or selected by

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 423 F U N D A M E N T A L R I G H T S I N H O N G K O N G the Election Committee. Second, the question of the ordinance’s compatibility with international human rights standards is a legal question not properly brought before an elected legislature. On this question, we would suggest that a more compelling determination can be found in reports from the international bodies charged with interpreting the ICCPR and the ICESCR. Both the Human Rights Committee and the Committee on Economic Social and Cultural Rights have expressed concern about the Hong Kong government’s use of the Public Order Ordinance, with specific concerns about restrictions on freedom of assembly and trade union activities. We share these concerns. The December 2000 motion was by no means the end. In May 2001, the Administration’s use of the ordinance again triggered controversy, this time arising out of demonstrations at the Fortune Global Forum. On that occasion, police restricted demonstrators to designated “demonstration zones” which demonstrators claimed were so far from the location that Forum participants could neither see nor hear the demonstrators, effectively frustrating the purpose of the demonstration. Other police activities raising concerns include the confiscation of a mock coffin made of plywood which the demonstrators had intended to use in their protests; the arrest, prosecution and assault by police officers of three demonstrators resisting confiscation of a vehicle used by demonstrators; and the arrest and prosecution of seven demonstrators who had chained themselves to a flagpole outside the site prior to the start of the Forum, at a time before the flagpole was put off limits. These actions by the Adminis- tration raised anew the concerns that the Public Order Ordinance is being applied to impede, restrict or punish freedoms of expression, association and assembly. Most recently, in May 2002 the HKSAR administration charged three political activists with “organizing an unauthorized rally” in violation of the provision of the Public Order Ordinance which requires demonstrators to obtain police permission seven days in advance of a protest, in the form of a “letter of no objection.” The defendants were charged with failing to obtain such a letter prior to organizing a rally on February 10, 2002 protesting the jailing of a social worker for incidents during an Au- gust 2001 protest. The case is being described as the first of its kind, and likely to end up in the Court of Appeal or the Court of Final Appeal if the government pursues the charges. There have been dozens of protests in Hong Kong since reversion to China’s sovereignty for which police received no prior notice, but only once before has the Administration charged demonstrators under the permit provision. Those charges were later dropped.

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Critics point to the current case as an example of the Administration’s selective use of the Public Order Ordinance as a vehicle for curtailing non- violent expression and assembly in Hong Kong, in violation of the BORO, the Basic Law, and the rights guaranteed Hong Kong residents under international law. Although it is early in the current proceedings, we assume that if the charges are pursued the case will warrant our future attention.

2. Press Freedom Hong Kong continues to enjoy vibrant, independent media. Never- theless, self-censorship remains a serious concern, and a number of incidents during the reporting period remind us of the need for vigilance. For example, Hong Kong subscribers of a text-based pager messaging service lost service in October 1999 when mainland officials interrupted service across southern China in an effort to block messages related to Falun Gong (see below). In April 2000, after a Hong Kong-based PRC official stated that Hong Kong media should not report views that advocate Taiwan’s independence as “normal” news, Internet chat rooms were reported scrambling pages discussing “Taiwan independence” and “Tibet independence.” In the fall of 2000, the South China Morning Post removed reporter Willy Wo Lap Lam from an editorial position, triggering concerns that the demotion was brought about by persons outside the editorial department who were upset that Lam’s column on Beijing politics had become “too critical” of the mainland’s leadership. Lam later resigned in protest, raising additional concerns about a weakening of English-language media undermining Hong Kong’s status as an international information center. Perhaps the most telling example of continuing tension between Hong Kong’s free press and censorship pressures occurred on December 10, 2000, Human Rights Day. On that day four newspapers printed an advertisement protesting the treatment of Falun Gong practitioners on the mainland. At the same time, three Hong Kong papers refused the ad on the grounds that it was “defamatory to the Central Gov- ernment.” The most significant development during the reporting period was the creation of a Press Council. In August 1999, the HKSAR government released a consultation paper recommending the establishment of a press council to adjudicate and punish privacy intrusions by the media. Media and other sectors resisted, seeing the proposal as a step toward government interference with the press. To head off the proposal, a private press council comprised of industry and public members was established in 2000 with limited powers to investigate complaints by members of the public

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 425 F U N D A M E N T A L R I G H T S I N H O N G K O N G of media invasion of their privacy. Some supporters of the council, however, are now trying to turn it into a statutory body with limited immunity, arguing that this will strengthen the Council’s ability to advance complaints without fear of being sued. Opponents argue that the council must remain fully independent of the government and that as a statutory body the Press Council would be susceptible to government interference and later restrictions. Any changes to the Press Council must be considered carefully, especially any which would compromise its independence or create even an appearance of government influence.

3. Falun Gong Falun Gong is a practice of spiritual, meditative and physical exercises which practitioners believe will bring them greater health, happiness and prosperity. The practice of Falun Gong has been banned on the mainland since July 1999, when the movement was branded by the CPG as an “evil cult.” Falun Gong practitioners in Hong Kong have formed a society registered under the Societies Ordinance and are largely permitted to practice without interference. Nevertheless, there are signs suggesting a willingness on the part of HKSAR officials to curtail the rights of Hong Kong’s Falun Gong practitioners to accommodate the CPG. In January 2001, for example, after a conference at Hong Kong’s City Hall attended by more than 1,000 Falun Gong practitioners from around the world, a representative of the PRC’s Government Liaison Office in Hong Kong was quoted as saying “the Central Government will not allow any organization or anyone attempting to turn Hong Kong into a center for Falun Gong activities and using Hong Kong as an anti-China base, damaging ‘one country, two systems’ and Hong Kong’s stability and prosperity.” The statement was taken by many as a clear signal from Beijing to the Hong Kong administration to take action against the Falun Gong. Over the next few months, public comments by the Chief Executive and other senior HKSAR administration officials suggested their singling out Falun Gong for surveillance, with the Chief Executive stated that Falun Gong was “more or less bearing some characteristics of an evil cult.” Mr. Tung admitted discussing Falun Gong members activities in Hong Kong with PRC President Jiang Zemin, and raised the possibility of Hong Kong enacting anti-cult legislation. The Director of Hong Kong’s Leisure and Cultural Services Department (“LCSD”) suggested that activities at government venues should not be “critical in nature.” Because LCSD venues include the City Hall where the earlier conference was held, the comment was interpreted as laying the groundwork to deny future permits to Falun

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Gong members. As noted earlier, in May 2001 the Immigration Depart- ment banned 103 followers of Falun Gong from entering Hong Kong in advance of the Fortune Global Forum. In June, the Chief Executive stated his office had determined that Falun Gong was undoubtedly an evil cult, requiring the government to continue monitoring practioners. In August, police ordered a group of approximately 20 Falun Gong followers demon- strating near the Government Liaison Office to leave, despite their dem- onstrating in an area that had previously been demonstrated a “Desig- nated Demonstration Area” by police. Later that month, 10 Falun Gong followers were arrested outside the same office. They were later released without charge as police admitted that the arrests were triggered by complaints from the Liaison Office. Most troubling in the many reports of HKSAR administration surveillance and harassment of Falun Gong practitioners are those which suggest that the Administration was preparing to adopt legislation to combat “sects” or “cults.” Reports indicated that the Security Bureau had completed a study of similar foreign legislation, including legislation adopted in France to outlawing cults and prohibiting brainwashing. Commenta- tors, including the Hong Kong Bar Association, expressed concern about anti-cult legislation, noting specifically the lack of an accepted, objective definition of a “cult” could permit arbitrary or abusive application. The Association further noted that existing laws in Hong Kong were sufficient to deal with any threats to personal safety, public order and morals, and that any new legislation could have a grave impact on the freedoms of thought, conscience, belief, religion, expression, assembly and association, all of which are guaranteed under the Basic Law.

V. CONCLUSION After the our last mission to Hong Kong, we concluded: “If the PRC’s pledge of ‘One Country, Two Systems’ has meaning, it must include a commitment to preserve the rule of law in Hong Kong, and in particular, judicial independence, the finality of decisions, and the respect for precedent, as those qualities have been known in practice in Hong Kong for decades.” We further noted that, “[t]his common law tradition has been a central component of what makes Hong Kong among the most stable, open, and productive societies both in Asia and the world.” Among other things, our 1999 report expressed concern that the HKSAR administration had undermined Hong Kong’s common law traditions by requesting an NPCSC interpretation, which in turn created the possibility that Hong

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Kong’s legal system would evolve into a “hybrid” of the common law tradition and the significantly different mainland legal tradition. As one of Hong Kong’s leading academics recently put it, “To some extent the problem is inherent in the system. ‘One Country, Two Systems” is a jour- ney without destination. It is unclear whether the ultimate goal is to retain two equal, thriving, but different systems, or whether it is to assimilate Hong Kong into the mainland politically, legally, culturally, and ideologically. As long as there is no clear destination, there will be tensions to maintain a separate liberal tradition on the one hand and to assimilate Hong Kong into the mainland on the other. Protection for human rights in such circumstances will always be precarious.”17 Our report nonetheless expressed the hope that Hong Kong’s legal traditions in particular would endure. Developments in the immediate wake of the right of abode controversy give cause for reassurance, but also reasons for ongoing concern. Nearly all of the communications that we received make clear that as a general matter Hong Kong’s legal system continues to flourish. Moreover, the cases that the CFA has considered since our last visit, suggest many reasons for optimism. First and most obviously, there has been no subsequent NPCSC interpretation in response to a final judgment rendered by the CFA. Nor, second, has the HKSAR government made a subsequent request for such an interpretation. Third, the government has in fact lost cases, or parts of cases, before the CFA, including Chong Fung-Yuen (the “toddler case”) and Ng Siu Tung (the “5000” case). Fourth, the Court has thus far rejected every request that the government has made for an interlocutory NPCSC interpretation under Article 158. Finally, and perhaps most importantly, the CFA has repeatedly stressed that it shall continue to interpret the Basic Law in accordance with common law principles. At the same time, the same case law suggests several ways in which the rule of law as Hong Kong has known it might again face serious assault or erosion. First, the HKSAR administration has on two occasions— the “toddler case” and the “adoptees case”—made requests for NPCSC interpretations under Article 158. While such requests comport with the Basic Law’s interlocutory mechanism, too frequent resort to this device would have the effect of eroding the CFA’s position and the common law methodology it has been at pains to safeguard. Second, the Administration’s requests in these cases indicate that its standards for seeking Article 158

17. Johannes M. M. Chan, Human Rights in the Hong Kong Special Administrative Region: The First Four Year , 35 K OBE U NIVERSITY LAW REVIEW 75, 101 (2001).

T H E R E C O R D 428 I N T E R N A T I O N A L H U M A N R I G H T S interlocutory interpretations are more broad than for interpretations after a judgment, which the Administration stated would be rare and isolated. Third, several communications we received directed our attention to press reports that the Administration, and in at least one instance, a mainland official, has raised the specter of a request for a post-judgment NPCSC interpretation in an ostensible effort to pressure the CFA in its deliberations. We are in no position to verify or refute such reports. We can say, however, that if they are true they raise grave concerns and that in any event the governments of both the SAR and mainland should refrain from giving any appearance of subjecting the CFA to this type of pressure. Finally, it remains that the CFA has yet to render another judgment against the government in a case that has either extensive social and economic consequences or major symbolic importance comparable to the original right of abode cases. To a large extent, the true test of the “One Country, Two Systems” idea will come when the CFA renders such a judgment and the authorities in both the SAR and the PRC not only let it stand, but the Hong Kong government enforces it. We observe similarly that the true test for Hong Kong’s democratic development and for continued respect for fundamental rights within the territory is whether the HKSAR administration will fulfill its essential role in preserving Hong Kong’s side of the “one country, two systems” relationship. Signs for reassurance include the evolution of greater accountability within the executive leadership of Hong Kong and the creation of the Women’s Commission. Reasons for ongoing concern include a generally low level of transparency in the Administration, lack of progress toward universal and equal suffrage, continuing failure to redress problems of discrimination, and a variety of incidents tending to chill freedoms of expression, association and belief, including restrictions on visas and travel, use of the Public Order Ordinance to curtail expressive activity, and public statements of both HKSAR and CPG officials against legislators, counsel, academics, the media, and public advocates, at best disparaging their actions and at worst challenging the propriety of the exercise of expressive rights as somehow dangerous to the well being of Hong Kong. As Hong Kong is facing these challenges, it is worth noting that the SAR has been suffering its first recession in many years. Its unemploy- ment rate is nearly 7%. Property values, moreover, have dropped nearly 50% in the past several years. Further, the accession of the PRC to the WTO will reduce the need to use Hong Kong as a commercial entry into China just as Shanghai is aggressively seeking to replace the SAR as Asia’s

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 429 F U N D A M E N T A L R I G H T S I N H O N G K O N G leading financial center. Hong Kong nonetheless boasts several important advantages. Its commercial and investment banks are strong, well- capitalized, and sophisticated. Yet not least among Hong Kong’s attractions has also been the rule of law in general and a highly respected legal system in particular. Preserving the rule of law as Hong Kong has known it will contribute substantially to the SAR maintaining its commercial and financial preeminence. We agree with the US Consul General, who in a speech last year noted that “Hong Kong’s autonomy does not depend upon Chinese forbearance alone. It also depends upon the strength of the local community’s commitment to and willingness to stand up for, its freedoms and the rule of law guaranteed in Hong Kong’s mini-constitution, the Basic Law.”18 On both of our visits to Hong Kong, and through the many submissions received for this interim report, we have encountered many who are indeed committed and willing to stand up for Hong Kong’s autonomy and for the betterment and long-term happiness of its people. But Hong Kong’s well-being depends upon more than just these committed and willing individuals. It depends upon the HKSAR government, in the role of intermediate authority between the people and the ultimate sovereign, acting as mediator and advocate of the SAR’s residents, their system, rights, and autonomy. To date the HSKAR government appears divided in this role. The Court of Final Appeal continues to maintain its authority as guardian of legal process and the rule of law. The Legislative Council—not an equal partner in design or function—nevertheless endeavors and not infrequently suc- ceeds in speaking for the people. The Administration, enjoying under present conditions the largest part of the governmental authority, must bear an equally large share of responsibility for Hong Kong’s autonomy, the freedoms of its people, and the rule of law. At the present, it is unclear whether the Administration will to meet the challenge. Above all we conclude, as we emphasized in our earlier reports, that ongoing monitoring of the situation in Hong Kong is warranted and welcome by those dedicated to the territory’s welfare and that of its people. It is in that spirit that we first visited in 1995. It is why we have returned— in body and via regular correspondence. And it is why we will continue to do so.

September 2002

18. “A Tale of Two Cities: The Image and Reality of Hong Kong Today”, Remarks by U.S. Consul General Michael Klosson to the Asia Society, Houston, Texas (Feb. 15, 2001)

T H E R E C O R D 430 I N T E R N A T I O N A L H U M A N R I G H T S

The Committee on International Human Rights

Scott Horton, Chair Peter W. Tomlinson, Secretary

Ajita Abraham Erika Gottfried Charles D. Adler Jehanne Henry Nicholas Arena Herbert Hirsch Karen Leslie Barrett Anil Kalhan Anne E. Beaumont Christopher Kean Farah S. Brelvi Elisabeth Adams Mason Carol A. Carter Catherine B. Powell Margret Caruso Delissa A. Ridgway Seymour H. Chalif Michael Rizzo Hanz Giovanni Chiappetta Sidney S. Rosdeitcher Charles E. Clayman Paula G.A. Ryan Stuart M. Cobert Joseph H. Saunders Amy C. Cococcia Elizabeth J. Shafer Deborah L. Cornwall Karen Shaw Michael A. Corriero Margaret L. Shaw Mark K. Dietrich Alan R. Sloate Paula Donnolo Michael J.D. Sweeney Barbara Fortson Peter Laurence Zwiebach Nancy Mandelker Frieden

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 431 New York City and the United Nations: Toward a Renewed Relationship* The Special Committee on the United Nations

ew York City will inaugurate a new Mayor on January 1, 2002, in the midst of very difficult times. Given the scale of the human and physical devastation from which the City must struggle to recover, and the profound economic difficulties that must be overcome, improving the City’s relationship with United Nations would not likely be high Non a new Mayor’s priorities. Yet the World Trade Center attack imposes substantial new responsibilities on the City regarding the UN, and now more than ever, the City should look to take best advantage of the benefits that flow to the City as result of the presence of UN headquarters here. The United Nations is the central institution in the world for promoting international peace and security and the rule of law, and the United Nations Charter is the legal cornerstone of international relations. The Association of the Bar of the City of New York,1 the American Bar Association,2 and many authorities on international law,3 have repeat-

*The report was issued in December, 2001, prior to the inauguration of Michael Bloomberg as Mayor of New York City. The report therefore does not reflect any actions taken by, or events occurring during, the Bloomberg Administration. 1. Committee on International Law, Report on United Nations Financing , 43 Rec. A.B.C.N.Y. 724 (1988); Letter, Michael A. Cardozo, President, Association of the Bar of the City of New York, to President Clinton and congressional leaders, Jan. 6, 1998. 2. Letters, Jerome J. Shestack, President, to Congress, March 27, 1998; Robert D. Evans, Director, ABA Governmental Affairs Office, to Rep. Benjamin Gilman, Sept. 3, 1997.

3. See, e.g., J.L. Brierly, THE LAW OF N ATIONS [107 (5th ed. 1955)] [update]; Am. Soc’y Int’l L.

T H E R E C O R D 432 S P E C I A L C O M M I T T E E O N T H E U N I T E D N A T I O N S edly called upon the United States to pay its dues to the United Nations, on time and in full, as a treaty obligation under the Charter. In this report, we urge a renewal and strengthening of the relationship between the City of New York and the United Nations, to support the United Na- tions in its important work, and also for the benefit of the people of New York City. The UN might well have located elsewhere, and came to have its headquarters in New York largely as a result of substantial inducements. The organizational meeting of fifty countries took place in San Francisco in 1945, and the first meetings of the UN General Assembly and the Security Council both took place in London in January 1946. John D. Rockefeller, Jr. offered to contribute $8.5 million (about $75 million in year 2000 dollars) to purchase a six-block tract on the East River, already assembled by private developer William Zeckendorf,4 and this offer was accepted by the General Assembly in December 1946. New York City contributed additional land along the East River and rights to the waterfront, and made alter- ations to the surrounding streets and land valued at about $20 million (about $143 million in 2000 dollars).5 In 1948, the US provided an interest-free loan of $65 million (about $465 million in year 2000 dollars) for the construction and furnishing of UN headquarters.6 After consulting with the City and the State of New York, the United States government signed an agreement in 1947, providing that the UN headquarters would be under the control and authority of the United Nations and “inviolable.”7 The UN may not be dispossessed of its headquarters property, or removed from its headquarters, except by its own decision.8 To the extent requested by the UN Secretary-General, appropriate American authorities (local, state and federal) must provide public

Special Working Comm. on U.N. Relations, Report and Resolution (Aug. 1989), reported in [July-Sept. 1989] Am. Soc’y Int’l L. News 1. 4. 4. AIA Guide to New York City (New York: Collier Books, 1978), 158. 5. Official files of President Harry S. Truman, February 10, 1948, cited in UNITED NA- TIONS: Planning for Headquarters Renovation is Reasonable: United States Needs to Decide Whether to Support Work (Washington: US General Accounting Office, 2001) (hereinafter “GAO Report”), 44. 6. GAO Report, 17. 7. Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations (June 26, 1947), approved by joint congressional resolution, Act of August 4, 1987, Pub. L. No. 80-357, Art. III, Sec. 7. 8. Id., Art. II, Sec. 3 & Art. IX, Sec. 23.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 433 N E W Y O R K C I T Y A N D T H E U N I T E D N A T I O N S services, including police and fire protection, utilities, telephone, and refuse and snow removal.9 New Yorkers, and Americans generally, took pride in the newly created United Nations. Eleanor Roosevelt, a delegate to the founding conference of the UN and leading proponent of its Universal Declaration of Human Rights, served as the first Chair of the City’s UN Committee. The American relationship with the UN has deteriorated over the past half century, driven by concerns over preserving national sovereignty, isola- tionist attitudes towards international law, negative attitudes towards certain countries and social systems, disagreements over UN efficiency and cost, and the frequent minority status of the US in the General Assembly.10 So too has the UN’s relationship with the City of New York deteriorated, sometimes because of similar concerns, but often because of minor concerns. The importance of the United Nations to the world community, and the benefits its presence brings to the City, have earned little note, and local complaints regarding the burdens of hosting the UN headquarters, such as parking and traffic problems, have become dominant. City residents, particularly on the east side of Manhattan, have long complained about privileged diplomatic parking, illegal parking, and traffic congestion and street closings resulting from UN sessions, and their complaints have been reported widely in the news media. In recent years, the City has been fiercely protective of what it sees as its interests. The approach has often been confrontational, with repeated public disputes about the collection of parking fines and real estate taxes. For its part, the UN community has often seemed isolated in its East River enclave, indifferent to the concerns of City residents, and uninvolved with the City. Member State diplomats, being focused on multilateral relations with each other’s governments rather than on bilateral relations with the host country, are probably less involved in the social and cultural life of New York than would be their counterparts in a national capital such as Washington. This resulting stand-off finds the City unappreciative of the benefits of the UN’s presence, unable to take better advantage of the UN’s presence, and mired in relatively petty disputes over parking and local taxes. Our study concludes it is in the fundamental interest of the City, the United States and the United Nations to improve this relationship. A

9. Id., Art. VI, Sec. 16 & Art. VII, Sec. 17. 10. E. Luck, Mixed Messages: American Politics and International Organization (Washington: Brookings Institution Press, 1999), 7.

T H E R E C O R D 434 S P E C I A L C O M M I T T E E O N T H E U N I T E D N A T I O N S better relationship between the City and the UN will help to advance the essential work of the UN in the world, to advance American foreign policy objectives widely shared by New Yorkers, and bring economic, cultural and educational benefits to the City. Moreover, the UN Headquarters complex is due for a substantial renovation, and the new City administration can make a lasting contribution to the City and the world by assisting and helping to shape this project.

I. ADVANTAGES OF THE UN’S PRESENCE IN NEW YORK, AND HOW TO ENHANCE THEM A. Direct Economic Benefits A series of studies were performed during the Koch Administration in 1977, 1981 and 1989 on “The Economic Impact of the Diplomatic Com- munity on the City of New York.” The 1989 study, performed in collaboration with Chemical Bank, concluded that direct UN expenditures in the City in 1988 totaled $486,562,000, the expenditures by UN Missions in the City totaled $233,645,000, and expenditures by Consulate General offices totaled $138,090,000, for a total of $867,301,000, excluding additional expenditures by nongovernmental organizations.11 The 1989 study estimated the costs to the City for education of the children of UN staff and diplomats, at $3,900,000, and the revenues lost to the City, primarily as a result of real estate property tax exemptions and also uncollected parking and towing fines, at $21,957,000, for a total of lost expenditures and lost revenues of $26,502,000.12 Subtracting these costs and lost revenues from the estimates of UN economic benefits produced an estimate of $830,799,000 as the net economic benefit of the presence of the UN and its related diplomatic community in New York City in 1988. Another study was commissioned by the City in 1995, based on survey data collected by the NYC Commission for the United Nations, and economic analysis performed by the NYC Economic Development Admin- istration using the Regional Input-Output Modeling System (RIMS II) developed by the U.S. Commerce Department.13 This study found that

11. The Economic Impact of the Diplomatic Community on the City of New York (New York: NYC Commission for the United Nations and the Consular Corps, 1989 ). 12. The study noted that although the U.S. government reimbursed $7 million annually in extraordinary police costs, unquantified “routine” police-work costs were paid by the City. 13. New York City and the United Nations: Celebrating a 50 Year Partnership (New York: NYC Commission for the United Nations and the Consular Corps, Sept. 1995) .

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 435 N E W Y O R K C I T Y A N D T H E U N I T E D N A T I O N S the UN headquarters, agencies, missions and consulates directly employed 16,400 people, and the extended UN system employed a total of 30,700 people, directly and indirectly, making it one of the twenty largest employers in the City. The study also found that the UN extended system paid a total of $850 million annually in salaries, and that the total of direct and indirect salaries generated in the NYC area by the UN extended system and its “ripple effect” was $1.2 billion annually. The study further found the UN headquarters, agencies, missions and consulates directly spent approximately $1.5 billion in the NYC metropolitan area, and concluded that the total direct and indirect spending related to the UN extended system and its employees was $3.3 billion in the economy of New York City in 1994.14 The 1995 study was later disowned by the City.15 City officials we spoke with disparaged the study, arguing it claimed economic benefits for the UN’s presence while ignoring the economic costs to the City of the UN’s presence. In fact, the 1995 study listed categories of costs and loss revenues connected with the UN—sales and income tax exemptions, unreimbursed “routine” police costs, and public schooling for diplomatic children—without stating their cost. Yet we note from the prior 1989 study that costs and lost revenues associated with the UN equaled only 3% of the amount of positive economic benefits derived from the presence of the UN.16 The 1995 study was apparently a casualty of the City’s 1997 public row with UN diplomats over unpaid parking fines, because it contained a statement that “diplomats are not required to pay for parking tickets.”17 This misleading statement was correctly withdrawn, but as the parking controversy escalated, the City began to cast doubt on the economic value of the UN, claiming greater economic potential for the UN headquarters site if the UN were to leave New York.18 It is unfortunate that this posture

14. Id. 15. Unlike the earlier NYC Commission for the United Nations reports, no copy is in the Municipal Reference Library, and when we requested a copy, we were told that they had all been “shredded.” We obtained our copy from the U.S. General Accounting Office, which obtained it from the US Mission to the UN. 16. The Economic Impact of the Diplomatic Community on the City of New York (New York: NYC Commission for the United Nations and the Consular Corps, 1989). 17. Clyde Haberman, “When the City Was a Friend to Diplomats,” NY Times, April 18, 1997; “Rudy Used to Like, Not Loathe the UN,” NY Daily News, April 16, 1997. 18. “That’s Not the Ticket,” NY Daily News, April 12, 1997; “UN No Tour Draw— Rudy,” NY Daily News, April 14, 1997.

T H E R E C O R D 436 S P E C I A L C O M M I T T E E O N T H E U N I T E D N A T I O N S has affected the City’s view regarding the economic benefits of the UN to the present day. The 1995 study is in any event out of date, and the new administration should want to reexamine the costs and benefits associated with hosting UN headquarters. There is no question however that the UN is an enormous economic enterprise, whose revenues come from national governments around the world, including a major contribution by the United States, but are spent largely in New York City.19 The General Assembly session every fall is alone comparable to a major international convention or sporting event, a diplomatic Olympics, on a scale that most cities’ visitors bureaus would be happy to attract even once, much less every year. Visitors attending UN conferences held in New York infused $27 million into the City’s economy in 1994.20 Moreover, public international expenditures are not particularly affected by economic recessions, so these large expenditures will be made each year, in bad times as well as good. The UN provides a continuous large boost to the NYC economy, and the City should be duly appreciative.

B. Symbolic and Indirect Economic Benefits Finance and international trade are the most profitable sectors of the New York City economy. New York is in competition with London as the leading center of world finance. The City enjoys a distinct symbolic advantage in this competition as the host city of the United Nations. Everything possible should be done to build on the presence of the United Nations in promoting New York as a location for international businesses.21 Tourism is a major industry in New York. In the year 2000, 37.4 million visitors came to New York and spent $17 billion dollars while here. However, the number of visitors dropped by 5.4 million to 32 million in

19. We note the government of Geneva Switzerland estimates that the international organizations and diplomatic missions based there, including the much smaller UN presence, employ over 30,000 people and annually spend about CHF3.5 billion (US$2.2 billion). http://geneva.ch/ InternationalGeneva.htm 20. Mitchell L. Moss, “New York’s Hot Property,” NY Times, April 17, 1997. New York City and the United Nations: Celebrating a 50 Year Partnership . 21. The Division for International Business of the NYC Commission for the United Nations presently has programs to help international businesses locate in New York. The “One-Stop Shop” coordinates public- and private-sector referrals geared to a prospective company’s requirements. A project manager is assigned as the liaison for business affairs with city, state and federal agencies.

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2001, a 14% decline.22 The City lists the UN as one of the major tourist attractions in the City.23 Since 1952, approximately 37 million visitors have taken the guided tour of UN headquarters buildings. The traffic on the tour route reached its peak in 1964 with over 1.2 million visitors, but the attendance now fluctuates at around 400,000 visitors a year.24 Perhaps with a greater interest in foreign affairs, and much better promotion, these numbers can be increased. The UN envisions building a new Visitor’s Center on First Avenue at 48th Street, and the City should be supportive of this effort.

C. Advancing American Interests The current crisis enhances the concern for all Americans and all New Yorkers for accomplishing the relevant national security and foreign policy goals of the United States. New York has the responsibility and the opportunity, as host city for the United Nations, to play an important role in achieving those objectives. Both the General Assembly and the Security Council of the United Nations quickly and forcefully condemned the terrorist attack on New York,25 and the Council mandated a strong program of anti-terrorism measures binding on all 189 Member States.26 Speaking to the United Nations General Assembly Special Session on Terrorism on October 1, 2001, NYC Mayor Rudolph Giuliani hailed “the Security Council’s unanimous passage of Resolution 1373, adopting wide ranging anti-terrorism measures in the international community.”27 The UN General Assembly has adopted four different Conventions against terrorism in the years 1973-1999,28 some eight other Conventions

22. Testimony of Cristyne L. Nicholas, President & CEO, NYC & Company, NYS Assembly, 12/7/2001, http://www.nycvisit.com/CLN_oraltestimony.html. 23.http://home.nyc.gov/portal/index.jsp?pageID=nyc_visitors1&catID=1549& cc=1549&rc=740. 24. http://www.un.org/MoreInfo/pubsvs.html. 25. U.N. Docs. SC/Res/1368; A/Res/56/1. The General Assembly had previously adopted a Declaration on Measures to Eliminate International Terrorism (U.N. Doc. A/RES/49/60) in 1994, and a Supplement to that Declaration in 1996 (U.N. Doc. A/RES/51/210). 26. U.N. Doc. SC/Res/1373. 27. www.nyc.gov/html/om/html/2001b/un_remarks.html. 28. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973); International Convention against the Taking of Hostages (1979); International Convention for the Suppression of Terrorist Bombings (1997); International Convention for the Suppression of the Financing of Terrorism (1999).

T H E R E C O R D 438 S P E C I A L C O M M I T T E E O N T H E U N I T E D N A T I O N S against terrorism were adopted under the auspices of specialized agencies,29 and a comprehensive new anti-terrorism convention is near completion. Formation of a new government for Afghanistan and relief efforts for that country are all under the leadership of the UN. The UN’s presence in New York creates an inherent solidarity with New Yorkers in a time of peril from terrorism. The reaction in the General Assembly and the Security Council might not have been quite so over- whelming or so sustained had the violence of September 11 happened in a place distant from the UN. UN diplomats again shared the fears of New Yorkers when AA 587 crashed in Queens and UN headquarters were sealed off. Even if Al Queda is destroyed, other fanatical minds will continue to see New York as a tempting of target for violence and destruction. So long as the UN is based in New York, diplomats from all of the 189 UN Member States will personally continue to share the concerns of New Yorkers. This can only help to encourage the world community to take the strongest possible measures to deter and protect against terrorism. Diplomats accredited by the United Nations live and work in New York on a daily basis. Their perceptions of America will be colored by what they experience interacting with New Yorkers and with the City of New York. Diplomats weighing their country’s response to an American position in the General Assembly or the Security Council may be affected by whether they feel they have been treated fairly, kindly and helpfully by the City.30 Important questions of state may be affected not only by the objective interests of nations but by the daily life experiences of their representatives. The UN is an important posting for the diplomats of most countries, and over time many senior foreign diplomats rotate through a period of service in New York. Their perception of America may long be colored by

29. Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963); Convention for the Suppression of Unlawful Seizure of Aircraft (1970); Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971); Convention on the Physical Protection of Nuclear Material (1980); Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (1988); Convention for the Sup- pression of Unlawful Acts against the Safety of Maritime Navigation (1988 ); Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (1988); Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991) . 30. US Ambassador Bill Richardson claimed the US had lost some votes at the UN because of the 1997 public battle between the City and UN diplomats over unpaid parking fines. “Envoy: Tix Row Hits U.S. at UN,” NY Daily News, May 12, 1997.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 439 N E W Y O R K C I T Y A N D T H E U N I T E D N A T I O N S that experience. It is in the interest of the United States that this important diplomatic community be treated with warmth.31 As host city for the UN, New York should be open and welcoming to the accredited representatives of all member states, regardless of politics.32

D. Educational Opportunities The United Nations is an enormous educational resource for the people of New York City. Using the UN as a basis for classroom instruction can bring to life academic subjects such as geography, politics and history, and teach related research, writing, debate and conflict resolution skills. In this most multicultural of cities, programs based around the UN can help teach mutual respect and understanding between different ethnic groups. There are some excellent pilot programs underway to take advantage of the UN for enriching public education, but such programs should be expanded throughout the school system, and additional innovative programs developed. We summarize some of the traditional programs, new pilot programs, and future possibilities for using the UN in the public schools:

• New York schoolchildren have long taken school trips to the UN for a guided tour of the buildings, but the number of such tours has declined in recent decades. • High schools have long held Model United Nations programs, often on a club basis. Approximately 39 high schools and five middle schools now hold Model United Nations programs, under the “Global Classrooms” program of the United Nations Association of the United States (UNA-USA), most of these in alternative high schools under the Board of Education’s Office of Alternative Schools and Programs. This program claims considerable success in teaching cognitive skills to students not thought to be academically motivated, through students role-playing as

31. Ambassador Richardson further claimed that as a result of the city’s broadsides against diplomats, some private citizens were incited to acts of retaliation against foreign diplomats in New York, and that “[as] a direct consequence, there’s even been retaliation against American diplomats living abroad.” “Diplo Harass Up in City, U.S. Sez,” NY Daily News, May 21, 1997. This is certainly not the climate New York will want to encourage. 32. A particularly unfortunate incident was the decision by the Manhattan Borough Board to block the sale of a city-owned parcel to the Kingdom of Bhutan for construction of a new Mission, ostensibly because of Bhutan’s human rights record. “City Panel Rejects Sale of Building to Kingdom of Bhutan,” NY Times, Sept. 20, 1998. The decision was an inappropri- ate action by the host city.

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UN delegates. The Board should explore expanding this program throughout the regular high schools. • “Understanding Nations” is an enrichment program that brings UN Representatives into NYC 5th grade classrooms, run by UNA- USA in collaboration with Learning Leaders and the UN. This pilot program began in Spring 2001 with five schools and delegates from 4 UN Missions, plans to reach 20 schools by March 2002, and hopes to eventually involve all 189 UN Missions. • From our discussions with UN officials, we believe they would be open to doing much more, including arranging special briefings at the high school or college level on global issues, video- conferencing between the UN and schools or other institutions, with Secretariat or delegation officials addressing various issues, and getting information materials on the UN into classrooms. The UN has a website for educating children (www.un.org/pubs/ CyberSchoolBus). Nane Annan, wife of UN Secretary-General Kofi Annan, has visited a number of City schools. • The Board of Education held its monthly superintendent’s meeting in February 2001 at the UN, and Board staff hoped to encourage greater interest in the UN as an educational resource. With the decentralization of the school system, curriculum decisions are made at the local level. The Board should follow this initiative by meetings at the UN of the social studies coordinators from each of the City’s school districts (for elementary and middle schools), and of the social studies coordinators from each Borough (for the high schools), to encourage new curriculum ideas at the level where implementation would occur. • Much as we have specialized programs and schools for math and science, performing arts, etc., the City may want to establish specialized curricula, or perhaps even a specialized school, with a major focus on international affairs and the United Nations. The United Nations International School (UNIS), a private K-12 school, offers a possible model. UNIS incorporates UN-related topics in each year’s social studies curriculum, e.g. immigration to NYC and UN programs for refugees in the 6th grade, indigenous people’s rights in the 7th grade, human rights and the Universal Declaration in the 8th grade, etc. The school then offers students the option of entering an International Baccalaureate (IB) diploma program in the 11th and 12th grades with a specialty in international issues. It also has a two-day program each spring for 10th-12th graders, using the General As-

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sembly Hall of the UN to present a conference of students and guest speakers, designed and organized by the students, as the culmina- tion of a year-long project involving investigative research, writing, and the preparation of a working paper.33

E. Cultural Programs An even more overlooked opportunity may exist in the area of cultural exchange and entertainment, both nonprofit and commercial. Of course, the Lincoln Center Festival, the Brooklyn Academy of Music, and the World Music Institute already present a wide array of performances of dance, theater, music, opera, and circus from around the world. A much greater effort might be made to encourage UN Member States to bring their national music, dance and theater companies to New York. A new program might combine with one or more of the existing performance series, or an entirely separate “United Nations Festival” might be established. A special facility might be developed near the United Nations, or elsewhere in the city, to host performances and art, possibly for dual use with United Nations meetings during the fall general debate of the Gen- eral Assembly. There might be not only a political season for the United Nations, but also a cultural season, perhaps using the same venue at a different time of the year. An international cultural festival would be not only a spiritual lift for the City, but a basis for increased tourism and revenues. More might also be done to encourage greater exchange between the UN community and the City, on both a professional and a popular level. An effort could be made to encourage greater social interaction between the UN diplomatic and staff community, and the business, political and social communities in New York. It may also be possible to encourage, especially through cultural programs, greater contact between ethnic communities in New York and their countries of origin.

F. Policy Interchange The City employs many policy analysts to devise public policy in housing, environment, economic development, transportation, healthcare, etc. The United Nations and its specialized agencies do so as well, often looking at urban problems from the perspective of many different cities. Greater exchange could benefit the work of policy development both in the City and the UN.

33. http://www.unis.org/curriculum/humanities.

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An excellent example is the program presented by the NYC Depart- ment of Health during the General Assembly Special Session on HIV/AIDS in June 2001. The three-day program regarding the City’s experience as one of the earliest epicenters of the epidemic in devising programs for prevention and treatment was very instructive for health officials from countries where the epidemic is burgeoning now. On the other hand, the City entirely failed to participate in the major UN conference on human settlements, “Habitat II,” including a sum- mit of major cities, held in Istanbul in June 1996 to showcase and develop innovate approaches to urban problems, nor the “Istanbul + 5” follow-up conference held in June 2001. “Istanbul + 5” was held at UN headquarters in New York, and was attended by the Mayors of sixty major cities from around the world, who met with UN Secretary-General Kofi Annan on June 5, 2001. The City should have taken much greater interest in a conference this important and this directly relevant to our own problems. In general, the City should seek every useful opportunity to learn from the work done at the UN and its specialized agencies, and to share the City’s policy expertise with the UN.

II. CITY CONCERNS WITH THE UN, AND HOW TO AMELIORATE THEM A. Security UN headquarters was the target of a foiled terrorist plan in 1993, and obviously remains one of the most highly prominent targets for a potential terrorist attack in the world. Osama bin Laden himself described the UN as a “nothing but a tool of crime” that sides with Western “crusader” interests against Muslims.34 Any future terrorists are also likely to fix on the UN as a target, posing great danger not only to the UN community but also to the entire City. Baggage x-rays and metal detectors have been in place for some time, and security has been especially stringent since September 11, although diplomats remain exempt. The nearby streets, the FDR Drive, and the East River remain points of vulnerability, and have been shut down entirely at some times since the attack. The challenge will be to attain the highest possible levels of security while still keeping the UN headquarters open and accessible to the world. The UN is working at improving its security and emergency plans, and is impressed with what it has learned from the NYC Office of Emer-

34. “As U.N. Meets, Bin Laden Tape Sets Off Alarms,” NY Times, Nov. 9, 2001, A1.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 443 N E W Y O R K C I T Y A N D T H E U N I T E D N A T I O N S gency Management.35 The City should continue working very closely with the UN in devising the best possible security and emergency plans. The City is obligated under the Headquarters Agreement between the United States and the UN to provide police protection for UN headquarters.36 The UN’s Capital Master Plan calls for security improvements to UN headquarters including improvement of perimeter monitoring, expansion of screening facilities, blast-proof glazing in place of some existing exterior glass, etc.37 The plan should be reviewed and enhanced to maximize security improvements. There are also dangers inherent in the aging UN complex that must be remedied. A particular concern is that UN buildings do not meet current fire and safety codes, placing UN employees and diplomats, and NYC firefighters, at greater risk in the event of fire or explo- sion.38 There are substantial costs to the City in providing security, particularly police services, for the UN and the diplomatic community. The federal government reimburses “extraordinary” expenditures at the level of about $7 million annually, but “routine” expenditures are not reimbursed.39 The City should continue to seek maximum possible reimbursement from the federal government in return for providing essentially a national service.

B. Traffic The general debate in the General Assembly causes severe traffic congestion each September, when many Heads of State visit the City, and unusual security must be provided for their motorcades and each of their movements. At times the FDR Drive has even been closed. There are no easy solutions to these traffic problems. One possibility that has been floated is to create a special facility on the Queens side of the East River, or on Governors Island, for use during the general debate.

35. The present Director of Security for the UN formerly did diplomatic protection work as a NYC police officer. “A Watchdog for Danger at the Workshop for Peace,” NY Times, Oct. 10, 2001. 36. Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations (June 26, 1947), approved by joint congressional resolution, Act of August 4, 1987, Pub. L. No. 80-357, Art. VI. 37. “ Capital Master Plan: Report of the Secretary General ,” UN Doc. A/55/117 (2000), ¶44(d). 38. Id., ¶33. 39. GAO Report, 44. “Hizzoner Shuts the Door on Yasser, Castro,” NY Daily News, Sept. 2, 2000.

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A better-located facility might also double as a hall for presenting cultural events at other times of the year.

C. Parking By far the most publicized and discussed issue concerning the relationship between the City and the UN in recent years has been the City’s difficulty in collecting parking fines from diplomats. The NY Daily News published approximately 30 articles on this subject in the first half of 1997, with comparable coverage in other media. Surely the new administration will want to avoid a repeat of the public brawl that took place between UN diplomats and the Mayor at that time. The City has a legitimate interest in preventing obstructive and illegal parking, especially at hydrants, crosswalks, etc. The compromise eventually negotiated in 1997, allowing nonrenewal of diplomatic license plates if fines remain unpaid for more than one year, has helped, with the number of tickets issued to diplomatic vehicles dropping from 160,000 in 1996 to 52,000 in 2000.40 The City also has a legitimate interest in collecting unpaid fines, but it faces legal difficulties in doing so due to the diplomatic immunity provisions of the Vienna Convention on Diplomatic Relations41 and the Convention on the Privileges and Immunities of the United Nations.42 So long as persistent illegal parking is discouraged, collecting a few million dollars each year in unpaid fines is not the most important concern. Other capital cities that are host to many embassies bear a similar burden. A large portion of the unpaid parking tickets was issued to the diplomats from a small group of nations. Some intensive pressure should be directed at those Missions, perhaps with the aid of UN officials and the US Mission. Russian diplomats had been serious violators, receiving 32,350 tickets in 1996, but received only 251 tickets in 2000 after agreeing to lease garage space. Some diplomats claim, probably not entirely without reason, that parking enforcement personnel issue many unwarranted tickets to diplomatic vehicles, knowing that the tickets will go uncontested in court but will be credited nonetheless to the agents’ performance records. In any event, the City should strive to enforce its legitimate interests in compliance with parking regulations as diplomatically and construc-

40. “Diplos Get Away with Street Crime,” NY Daily News, June 3, 2001. 41 500 U.N.T.S. Nos. 7310-7312, Article 31 et seq. 41. 500 U.N.T.S. Nos. 7310-7312, Article 31 et seq. 42. 1 UNTS Nos. 15, 21, 21 UST 1418, Art, IV.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 445 N E W Y O R K C I T Y A N D T H E U N I T E D N A T I O N S tively as possible. This relatively petty issue should not be permitted to overshadow the enormous present and potential benefits the City derives from the presence of the UN, and the important national and international interests in treating foreign emissaries warmly.

D. General Assembly Policy Positions Each of the 189 UN Member States has one vote in the General As- sembly, and unlike in the Security Council, the United States cannot veto a resolution. Many New Yorkers and public officials have been offended by some policy positions taken by the UN General Assembly, for example regarding Israel.43 It is important to remember that some policy conclusions with which many New Yorkers may disagree will inevitably result from any democratically constituted international organization. Policy positions taken by the UN General Assembly reflect the positions of individual governments around the world, not the institution itself. The presence of the UN in New York gives New Yorkers and organizations based here more opportunity to have their point of view heard by delegates to the UN, through New York news media and direct lobbying. Driving the UN away to Eu- rope, Africa or Asia, would only diminish this opportunity. Treating all accredited UN representative with courtesy and respect, regardless of their country’s politics, is central to our role as host city for the United Nations. The Mayor-elect has already signaled that this will be his policy.44

E. UN Capital Master Plan The principal UN headquarters buildings were designed by an international team of architects chaired by New Yorker Wallace Harrison, and including Le Corbusier and Oscar Niemeyer.45 The cornerstone was laid in 1949, the Secretariat was completed in 1951, and the General Assembly and the Conference Building in 1952. Were these significant architectural

43. After a majority of the General Assembly declared in 1975 that “Zionism is a form of racism and racial discrimination” [GA/Res/3379 (1975)], the 1977 Annual Report of the NYC Commission for the United Nations noted that “in 1975 the 30th General Assembly had a certain negative effect on the image of the U.N. in the eyes and minds of the New Yorker, as well as the country as a whole. . . . Tensions and negative feelings were evidenced by a number of articles and letters in the press opposing the presence of the U.N. in New York and proposing to abolish this Commission.” 44. “Sounded Out on Issues, Bloomberg Voices Criticism of Giuliani,” NY Times, July 23, 2001. 45. AIA Guide to New York City (New York: Collier Books, 1978).

T H E R E C O R D 446 S P E C I A L C O M M I T T E E O N T H E U N I T E D N A T I O N S buildings within American jurisdiction, they would undoubtedly have been designated as landmarks. A team of architects and engineers thoroughly examined the condi- tion of the UN headquarters complex in 1998-99. The study concluded that despite the high quality of the original construction, many building elements had deteriorated due to age, or do not meet current standards for safety and energy efficiency. The study concluded “the current condi- tion of the Headquarters complex renders it unacceptable for continued use over the long term.”46 The U.S. General Accounting Office reviewed the U.N.’s study, agreed with its assessment of building conditions, and determined the UN’s planning for renovation of the complex was sound and professional.47 The UN Sec- retariat offered the General Assembly options of renovating the complex over periods of three, six or twelve years.48 A shorter time period would be the least expensive, due to lower construction costs and accelerated energy savings, but most disruptive to the UN, as perhaps half of the Secre- tariat staff would have to be relocated at any one time. The longer time period is most expensive but least disruptive, requiring only 10% staff relocation at any given time. The Secretary-General recommended the intermediate six-year option, but the General Assembly recently directed the Secretariat to present all three options in depth for final decision. The Secretariat also considered a reactive approach, making repairs and improvements only as building elements failed. Over a period of 25 years, this would be nearly as expensive as complete renovation due to continuing high energy costs, and would still leave the UN with anti- quated buildings. It thus appears neither economical nor sensible.49 The Secretariat further considered demolishing and rebuilding the headquarters complex. Using the present site, this would cost several hundred million dollars more than renovation, and would be highly disruptive to the UN.50 Reconstruction of the UN on Governor’s Island has also been suggested, bringing considerable security and traffic advantages, and freeing the East River site for commercial development.51 While the new

46. “ Capital Master Plan ,” UN Doc. A/55/117 (2000), ¶5. 47. GAO Report, 3, 5, 48. “ Capital Master Plan ,” UN Doc. A/55/117 (2000), ¶¶ 9, 12. 49. “ Capital Master Plan ,” UN Doc. A/55/117 (2000), ¶¶ 36-42 50. Id., ¶72. 51. Clyde Haberman, “NYC; Moving the United Nations, But Keeping the Benefits,” N Y Times, May 23, 2001.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 447 N E W Y O R K C I T Y A N D T H E U N I T E D N A T I O N S administration should be free to explore this imaginative idea with the UN, we would caution against it. The current buildings are of landmark quality and have come to symbolize the UN to the world. A proposal to abandon them might weaken the institution, and damage the psycho- logical ties that bind the UN to New York, leading to consideration of a move to another city.52 Further, we would like to encourage greater interaction between the UN and the City, which would not be aided by a move to a less accessible location. In summary, the UN General Assembly is likely to choose, and the City should support, a plan for the UN to thoroughly renovate its present headquarters complex over a number of years. The primary consequences for the City will be the need to accommodate the UN’s need for “swing space” to relocate meetings and staff during renovation work, to make improvements to nearby roads, and to assist with financing the renovation. Depending on the time period for the renovation, anywhere from 10% to half of the UN Staff will have to be relocated at any given time,53 as will major meetings and conferences. Options for securing swing space include commercial leasing, leasing of a building purchased or constructed by the United Nations Development Corporation (UNDC) (see section III.B. below), or new construction on the UN site.54 One space need not considered by the UN’s Capital Master Plan is for additional office space to house nongovernmental organizations (NGOs). Consultative status for NGO’s is provided for in Article 71 of the United Nations Charter, and the number of accredited NGOs has steadily increased. Currently there are 2091 NGOs in consultative status with the Economic and Social Council (ECOSOC), some 400 NGOs accredited to the Com- mission on Sustainable Development, a subsidiary body of ECOSOC, and 1,672 NGO’s are registered with the UN Department of Public Informa- tion.55 The City may want to encourage the growth of NGO’s, both for economic development purposes, and to enrich the processes of the UN,

52. Upon moving to Berlin, the government of Germany made a very generous proposal to the UN to relocate to former German government buildings in Bonn. 53. An important reason for the substantial temporary relocation requirements is the presence of hazardous materials, including asbestos, which must be removed from the UN buildings, and the consequent need for isolating large areas at a time. “ Capital Master Plan ,” UN Doc. A/55/117 (2000), ¶52. GAO Report, 26. 54. “ Capital Master Plan ,” UN Doc. A/55/117 (2000), ¶¶ 55-65. 55. http://www.un.org/esa/coordination/ngo.

T H E R E C O R D 448 S P E C I A L C O M M I T T E E O N T H E U N I T E D N A T I O N S and a new facility would help. A building constructed by UNDC as swing space for the UN during renovation might later be leased to NGO’s. An- other imaginative idea to explore is construction of a new conference hall for meetings and conferences during renovation of the UN headquarters, and later using the space as a cultural venue and/or as a location for the fall general debate if the new location affords easier high-security access for Heads of State. (see Section II.B. above). Some roadway improvements might be worthwhile for improving security and access to the UN, and enhancing the UN headquarters district. These might include directing First Avenue traffic entirely under- ground and creating a pedestrian mall in front of the headquarters. Assis- tance from the federal government would be welcome if it could be negotiated.56 Some UN member states may well look to the US government, and to the NYC and state governments, for assistance in paying for the capital master plan, due to the economic benefits derived from the presence of the UN, and likely to be derived from construction expenditures. Con- gress might also have expectations of the City.57 The severe local economic circumstances would certainly seem to preclude any direct contribution, and the City should be prepared to resist any such expectation. The City must point out that it will continue to incur substantial costs for security, education of the children of diplomats and UN staff, and for other City services, while foregoing various real estate taxes, income taxes, sales taxes and parking fines. The most important assistance the City and State of New York can give to the UN Capital Master Plan is the assistance and financing power of the United Nations Development Corporation (see III.B. below). A final decision by the General Assembly on implementation of the UN Capital Master Plan is not expected before the summer or fall of 2002. The new City administration should quickly become involved in the planning process to advocate solutions that are in the best interest of the City as well as the United Nations. In doing so, the administration will have an opportunity to make a long-lasting contribution to the City and to the world community.

56. The US State Department has also proposed replacing the US Mission to the United Nations on First Avenue at 45th Street with a new 22-story facility, with demolition to begin in 2002 and completion in 2005. “Their Mission: To Grow U.S. Presence at U.N.,” NY Observer, July, 2001. 57. GAO Report, 43-47.

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III. PUBLIC AND PRIVATE VEHICLES FOR WORKING WITH THE UN A. NYC Commission for the United Nations, Consular Corps and Protocol The New York City Commission for the United Nations, Consular Corps and Protocol, a mayoral agency, was established in 1962.58 The Commission is the principal representative of the City in dealing with the UN, foreign Missions and consulates, and state and federal agencies concerned with the UN. The Commission provides pro bono legal and practical advice to diplomats and to the public, advocates for the City with the UN and foreign Missions and consulates, and coordinates meetings between foreign representatives and City officials and businesses. The US Mission to the United Nations also has an Office of Host Country Affairs, which together with the City Commission, meets with the General Assembly Committee on Relations with the Host Country, traditionally chaired by the Ambassador of Cyprus.59 Many issues between New Yorkers and the UN community are resolved quietly through the assistance of the Commission. The Commission also has an economic development function, assisting international businesses to locate here, and a Sister City Program. These programs should be reviewed and probably enhanced. The Com- mission should look for ideas to the programs of other UN Host cities, particularly Geneva. Careful consideration should also be given to the choice of a new Commissioner. Given the increased importance of multilateral relations and of the United Nations as an institution in dealing with terrorism and peacekeeping, and the increased responsibility for New York as host city to the UN in dangerous times, the next Commissioner should have a deep background in international affairs, and substantial knowledge of the United Nations and of the City and its government. Moreover, given the opportunity of the new administration to make a substantial and long- lasting contribution to the manner in which UN headquarters are reno- vated, the next Commissioner should be knowledgeable concerning real estate and development issues and able to work constructively with the Board and staff of the UNDC.

58. The Commission has its origin in the City’s UN Committee, later the UN Hospitality Committee, under the Department of Commerce and Public Events in the 1950’s. The Giuliani Administration merged the functions of the City Hall protocol office into the Commission, creating its present title. 59. See, Report of the Committee on Relations with the Host Country , U.N. Doc. A/55/26 (2000).

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Further, an imaginative Commissioner can be a catalyst and coordi- nator for encouraging the sorts of education and cultural programs, and policy interchanges, suggested in this report. Some administrations have chosen this Commissioner based on political ties and contributions, with the functions seen as largely social, and the salary often a dollar a year. These times call for a full-time Commissioner with professional expertise, and it will probably be necessary to pay a salary.

B. United Nations Development Corporation The United Nations Development Corporation (UNDC) is a not-for- profit public benefit corporation established by New York State law in 1968, with the support of the City, to provide commercial office space and other facilities for the United Nations community in New York.60 The statute also established a United Nations Development District, for which UNDC has planning and development responsibility.61 The UNDC is governed by a fifteen member Board, of whom eight members serve at the pleasure of the Governor, and five serve at the pleasure of the Mayor, together with the City Planning Commission Chair and the NYC Com- missioner of Housing Preservation and Development, who serve ex officio. The UNDC has made an enormous contribution by constructing five buildings of architectural distinction greatly needed by the UN community. Construction proceeded in three phases. In Phase I, UNDC completed construction of a 39-story office building-hotel at One UN Plaza and buildings at 763 and 765 UN Plaza. In Phase II, UNDC completed the 40-story office building-hotel at Two UN Plaza in 1984. In Phase III, a 15- story office-residential building at Three UN Plaza was completed in 1987. In a Phase IV, the UNDC acquired 17 floors of the 633 Third Avenue office condominium property.62 Most of the properties built by the UNDC have been sold, and the remainder are in the process of sale. The properties were sold during the years 1997 to 2001, a strong period in the City’s real estate market, and most were sold at a substantial profit. UNDC has thus been a financial success as well.63

60. 1968 N.Y. Laws, Chapter 345. 61. Special zoning regulations regarding the United Nations Development District are set forth in Article VIII, Chapter 5 of the NYC Zoning Resolution. 62. UNDC Financial Statements for the Years Dec. 31, 1998 and 1997 (audited by Price Waterhouse Coopers LLP), Note 1. 63. Id., and interviews.

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Although it will shortly hold no properties, given the need for assisting the UN with its Capital Master Plan, the UNDC should certainly not be disbanded at this time. It is an open question whether UNDC should itself construct and manage any new buildings, or should merely put its financing power at the service of the United Nations. Either way, the UNDC is likely to have an indispensable role in accomplishing the UN capital master plan and building any new facilities that may be needed. The UN looks to UNDC to likely build or purchase, and then lease to the UN, building(s) for swing space needed during the renovation of UN headquarters.64 The UNDC might also be employed to build NGO offices, UN conference facilities, or even a UN-related cultural venue, as contemplated in this report. The UNDC has the power to issue tax-exempt municipal bonds. In- terest on these bonds is substantially lower than on commercial bonds because the interest payments are generally exempt from federal, state and local income tax. Subject to the quality of any development proposals and the response of the bond market, the UNDC thus has the power to carry out very substantial real estate developments on behalf of the United Nations at lower cost than private developers. The UNDC no longer has power however to issue tax-exempt bonds directly on behalf of the UN, as the Tax Reform Act of 1986 treats the UN as a private business ineligible for tax-exempt financing.65 Congress would have to reverse this provision as to the United Nations.66

C. Private Sector The possibility for substantial assistance from the private sector should also be considered, and the City should work to encourage and facilitate such assistance. The entire 18-acre site of UN headquarters was of course purchased with the generous contribution of New Yorker John D. Rockefeller, Jr. The Ford Foundation paid the entire cost of constructing the Dag Hammarskjold Library in 1961.67 Cable television pioneer Ted Turner gave $35 million to help satisfy

64. “ Capital Master Plan ,” UN Doc. A/55/117 (2000), ¶¶ 54-65. 65. GAO Report, 45. 66. Of course, Congress could also meet the UN’s needs by itself appropriating interest-free loans for the United Nations, as was done for the construction of UN headquarters in 1948. The $65 million loan was entirely repaid. “ Capital Master Plan ,” UN Doc. A/55/117 (2000), ¶21. 67. “ Capital Master Plan ,” UN Doc. A/55/117 (2000), ¶24. GAO Report, 18.

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U.S. dues arrears to the UN, and has pledged a gift of $1 billion to the UN over ten years, administered through a new UN Foundation.68 Private companies based in New York might also be encouraged to collaborate directly with the UN on projects.69 The UN Capital Master plan does contemplate the possibility of voluntary private contributions, but assumes they would be “relatively mi- nor.”70 In fact, there may be many people around the world willing to contribute to renovating the home of the United Nations, or for the development of related facilities, such as an NGO office building or a cultural venue. It is not known if the UN would tolerate the American cus- tom of naming buildings for their donors, but related facilities could certainly be build with such recognition for the donors. Foundations, and NYC businesses which benefit from the UN’s presence, might also be supportive. The former Con Edison site south of 41st Street along the East River is under development by the Fisher Brothers. They might agree to adapt their plans to include “swing space” during the UN renovation program, or other UN-related facilities.

IV. NYC AND THE UN: TIME FOR RENEWAL This study does not purport to thoroughly cover all issues regarding the relationship between the United Nations and the City of New York. Some of the more imaginative proposals require hard-headed economic analysis. We have worked largely from public documents, together with interviews of some officials. The new administration, once in office, will be in a position to probe deeper and utilize confidential information. We hope our central conclusions provide some useful guidance. Hosting the United Nations is an enormously valuable service to the world community, and it is in the interest of American foreign policy that we do so with grace and warmth. The UN happens to provide very substantial economic benefits to the City, and these greatly outweigh its costs and burdens. Very substantial benefits for education, culture and policy development in New York are possible as a result of the presence of UN headquar-

68. “Turner Offers $35 Million to Help U.S. Pay U.N. Dues,” Washington Post, Dec. 22, 2000, A01. 69. Bloomberg LP worked with the UN on a program to brief journalists from developing countries. 70. “ Capital Master Plan ,” UN Doc. A/55/117 (2000), ¶89.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 453 N E W Y O R K C I T Y A N D T H E U N I T E D N A T I O N S ters, and these possibilities have never been adequately explored. Espe- cially in these times, the City should attempt to make the most of these potential benefits. There are legitimate concerns with security, parking, and traffic problems related to the UN, but these should be managed constructively and should not be allowed to overshadow the much more important benefits of hosting the United Nations. The new administration has an opportunity not only to greatly strengthen the relationship of the City with the United Nations, but to leave its mark on New York by helping to shape the renovation of UN headquarters and the possible development of related facilities.

December 2001

The Special Committee on the United Nations

Lawrence C. Moss, Co-Chair* Michael L. Sher, Co-Chair Sandra Saiegh, Secretary† Emily M. Bass Terri Ann Mie Knuipo Motosue Jutta F. Bertram-Nothnagel Joanne J. Myers Weiheng Chen Jessica A. Neuwirth Alan A. D’Ambrosio Emily B. O’Connor Marjory Diana Fields Brolota Shea Owens Miles P. Fischer Rachel S. Paster Ioana Gheorghiu Erik S. Pitchal Maria Nicole Green Peter C. O. Schliesser Steven A. Hammond Denise Scotto† Larry D. Johnson Alice J. Slater Joy R. Lee Jennifer Trahan Richard B. Marrin Janet C. Walsh Lynne E. Moorhouse†

* Principal author of the Report † Recused from participation in the Report

T H E R E C O R D 454 The Vienna Convention on the Assignment of Receivables in International Trade

The Committee on Foreign and Comparative Law

I. INTRODUCTION It is common in the United States and a few other countries for companies to obtain credit by assigning their accounts receivable, but outside of those countries accounts receivable financing is relatively rare. This is unfortunate, because this form of financing is particularly suited to the needs of lesser developed countries. By allowing a borrower to obtain credit based on the creditworthiness of the borrower’s customers, rather than the borrower’s own creditworthiness, such financing can have the benefi- cial effect of providing to small companies credit at lower interest rates and credit which might otherwise not be available. In July of 2001, the United Nations Commission on International Trade Law (“UNCITRAL”) formally approved the Draft Convention on the Assignment of Receivables in International Trade (the “Convention”). The Convention, drafted over the course of six years by a working group (the “Working Group”) consisting of representatives from more than seventy countries and thirty international organizations, introduces the fundamental concepts of receivables financing into international commercial law. The Convention does not purport to constitute a complete system for accounts receivable financing. In particular, a lack of consensus on

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 455 F O R E I G N A N D C O M P A R A T I V E L A W such fundamental issues as the priority of competing claims to an assignment forced the Working Group to fall back on choice of law rules with respect to several crucial concepts. Nevertheless, the Convention interna- tionalizes a number of important issues and builds a foundation for future development in this area of law. For the reasons set forth below, the Committee on Foreign and Comparative Law of the Association of the Bar of the City of New York believes that the Convention on the Assign- ment of Receivables in International Trade will benefit all participants, both lenders and borrowers, in international financial transactions, resulting in an increase in the amount of credit available, a decrease in the level of risk, a reduction in interest rates and, ultimately, increased economic activity. The Committee, therefore, recommends that the Conven- tion receive the full support of the United States, that the President sign the Convention and that the Senate vote to ratify it. In addition, the Committee recommends that the United States adopt those portions of the Annex to the Convention relevant to the implementation of an international registration system. This report begins by discussing the social benefits of accounts receivable financing. It then summarizes the terms of the Convention, which is followed by a discussion of how the Convention affects existing international law. The report then briefly considers the impact of the Conven- tion on U.S. law and business.

II. ACCOUNTS RECEIVABLE FINANCING AND THE “LAVA LAMP” SOCIETY The American legend of the penniless immigrant or the poor farm boy who rises to command a business empire has a solid basis in history. Whatever problems the United States faces, a rigid class structure is not one of them. U.S. society can be compared to a lava lamp,1 with those on top sinking and those on the bottom rising to replace them. The United States experiences remarkable mobility between the wealthiest and the poorest segments of society. Several studies have found that 60% of all Americans move into a different income quintile within nine years. A study at the University of Michigan concluded that 29% of everyone in

1. Lava lamps were a popular home lighting fixture used in the 1960s. A globe or tube filled with colored water and wax rested on a light bulb. The heat from the bulb warmed the wax, causing droplets of it to float to the top of the globe, whereupon the droplets would cool off and sink to the bottom to repeat the process. This caused a dynamic system in the lamp whereby droplets of wax were constantly rising and falling in the body of colored water.

T H E R E C O R D 456 A S S I G N M E N T O F R E C E I V A B L E S the lowest income quintile in 1975 had moved into the highest quintile by 1991. There are both economic and social benefits to such economic mobility. It employs a country’s resources in a more efficient manner, and therefore maximizes wealth, because the system both penalizes failure and rewards success. Economic mobility also serves a social purpose, reducing hubris in the rich and despair in the poor. There are many reasons for the lava lamp society. A sound legal system, stable political regime and respect for the rule of law all allow class mobility to take place. Business regulation, which often serves to prevent class mobility, is not as extensive in the United States as it is elsewhere. Also, without an aristocracy, America has always looked up to its business leaders and scientists as role models. Further, ever since the earliest coloni- zation of North America, life in the New World was premised on advancement. The dream of getting ahead in America itself creates the demand for opportunity and the expectation of success. Within the realm of business and finance, one of the more effective means of creating a porous class structure is so common in the U.S. that it is taken for granted. Accounts receivable financing allows a company with no credit history to obtain capital on the basis of its customers’ credit histories. By using accounts receivable financing, a company can obtain capital either by selling obligations owed to it outright (a process which is often called “factoring”) or by pledging such obligations as collateral for a loan. By allowing a start-up company to obtain credit by using the credit of its richer, established customers, receivables financing can boot- strap poorer entities into economic success. Economic historians have found evidence to suggest that some form of factoring existed 4,000 years ago, in Mesopotomia. The assignment of a debt has been found among the records of ancient Rome. The first wide- spread use of receivables financing occurred in the trans-Atlantic trade in the 18th Century, although it more closely resembled advance payment for goods than what we know today as receivables financing. Modern factoring began in the United States about 100 years ago and for some time was used primarily in the textile and garment trades. Using receivables as collateral for loans is a more recent phenomenon, although by the 1930s this also had become an accepted financing practice. In that decade, Daniel K. Ludwig, at one time the only billionaire in America, built up a large fleet of ships by securing a loan to build one ship with a pledge of the receipts of an existing ship. Today, factoring alone is an $80 billion business and receivables financing in general is larger still.

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Despite the phenomenal success of receivables financing in America, the rest of the world has been slow to follow. Most countries lack a legal regime that can accommodate receivables financing. Factoring was introduced to the United Kingdom in about 1960. Continental Europe adopted it thereafter, although European countries other than the United King- dom still do not have a system which allows third parties to indepen- dently verify that receivables have not been pledged. The uncertainty this causes hinders the growth of the practice. A few other countries, including Mexico, have made efforts to accommodate receivables financing, but in general, outside of a few common law countries, the use of receivables as collateral continues to lag. Many of the legal devices which practitioners in the U.S. deem crucial for a fully functioning market in receivables do not exist in the rest of the world. The assignment of bulk and future receivables and the existence of a regulated filing system or an alternative system which would allow third parties to determine whether there are other claimants to the same receivable are all alien concepts in most of the world, including most developed countries. Receivables financing is, therefore, a great untapped resource. The bulk of exports in the developing world consists of natural resources and manufactured goods, two categories of products to which receivables financing is ideally suited. Receivables financing has enormous potential for increasing the availability of credit, enhancing the functioning of international trade and, more generally, improving the lot of mankind. It is with this in mind that UNCITRAL in 1995 convened a Working Group to draft a convention to address these issues. The Working Group met annually for four weeks a year, two weeks (usually in the spring) in New York and two weeks (usually in the fall) in Vienna. The initial draft, providing for an international registry system and priority rules based on “first to file” principles, proved to be too ambitious to obtain the approval of countries representing so many different legal and financial traditions, and the Working Group had to reach compromises on many important issues. Nevertheless, as ultimately drafted, the Convention made significant strides toward establishing receivables financing as a worldwide financing technique.

III. SUMMARY OF THE CONVENTION The Convention consists of 47 articles grouped into six chapters, together with a Preamble and an Annex comprised of ten articles in four

T H E R E C O R D 458 A S S I G N M E N T O F R E C E I V A B L E S sections. The Convention defines a receivable as “a contractual right to payment of a monetary sum” from a third person (the “debtor”). An “assignor” is one transferring a receivable by agreement (the “assignment”) and the “assignee” is the one to whom it is transferred. A country which has adopted the Convention is a “Contracting State.” This report will use these terms as so defined.

A. Preamble The goals of the Convention set forth in the Preamble are to create certainty and transparency and promote the modernization of the law relating to assignments of receivables, while protecting the interests of the debtor. By adopting clear, uniform rules governing receivable assignments, the Working Group expects increased credit availability in world markets at lower interest rates.

B. Scope of Application (Chapter I) This Chapter, comprising Articles 1 through 4 of the Convention, enumerates the types of transactions subject to the Convention. The Convention applies to both assignments of international receivables (i.e., receivables between a debtor and an assignor which are located in different States, regardless of the location of the assignee) and international assignments of receivables (i.e., assignments between an assignor and an assignee who are located in different States, regardless of the location of the debtor) if, at the time the assignment is concluded, the assignor is located in a Contracting State. Once a receivable becomes subject to the Convention, all subsequent assignments of that receivable are also subject to the Convention (Article 1(1)(a)), even if the Convention did not apply to prior assignments of such receivable (Article 1(1)(b)). The Convention does not affect the rights and obligations of the debtor unless, at the time of the conclusion of the original contract evidencing the receivable, the debtor is located in a Contracting State or such contract is governed by the law of a Contracting State (Article 1(3)). A person is located in the State in which it has a place of business; if it does not have a place of business, its location is the habitual residence of that person (Article 5(h)). Certain types of receivables and assignments are excluded from the Convention, including assignments made (i) to an individual for personal, family or household purposes or (ii) as part of the sale of a business (Article 4(1)). The Convention also does not apply to assignments of receivables arising under:

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(a) transactions on a regulated exchange; (b) financial contracts governed by netting agreements, except a receivable owed on the termination of all outstanding transactions; (c) foreign exchange transactions; (d) inter-bank payment systems, inter-bank payment agreements or clearance and settlement systems relating to securities or other financial assets or instruments; (e) the transfer of security rights in, sale, loan or holding of or agreement to repurchase securities or other financial assets or instruments held with an intermediary; (f) bank deposits; and (g) a letter of credit or independent guarantee.

The Convention also does not affect (i) rights and obligations of a person under the law governing negotiable instruments (Article 4(3)) or under special laws governing the protection of parties to transactions made for personal, family or household purposes (Article 4(4)) or (ii) the application of a State’s real property laws with respect to certain rules relating to security interests under such laws.

C. General Provisions (Chapter II) The articles in this Chapter, Articles 5 through 7, provide definitions and general rules of interpretation. Of note in these articles is the pre- sumption of party autonomy: an assignor, assignee and debtor can agree to vary from the Convention, but any such agreement is invalid as to third parties who are not party to such agreement (Article 6).

D. Effects of Assignment (Chapter III) This Chapter, consisting of Articles 8 through 10, sets forth certain rules governing the assignment itself. Article 8 recognizes the validity of bulk assignments of receivables, assignments of future receivables and assignments of a portion of or an undivided interest in receivables, provided that, in each case, the receivables are described sufficiently enough to be identifiable. Article 9 provides that anti-assignment clauses in contracts evidencing certain types of trade receivables (these consist of four categories: (i) trade receivables, other than those arising from financial services, construction or real estate contracts, (ii) receivables arising from intellectual property transac-

T H E R E C O R D 460 A S S I G N M E N T O F R E C E I V A B L E S tions, (iii) credit card receivables and (iv) receivables arising from multi- party netting agreements) are not enforceable against the assignee, but this provision does not affect the rights of the debtor against the assignor. Article 10 sets forth rules relating to receivables secured by collateral. Article 10(1) provides that a personal or property right securing payment of an assigned receivable accompanies the receivable without a new act of transfer, but if a law governing such right requires a new act of transfer the assignor is obliged to transfer such right. Articles 10(2) and 10(3) provide that the anti-assignment clauses invalidated with respect to receivables under Article 9 also are invalidated with respect to such property rights.

E. Rights, Obligations and Defenses (Chapter IV) This Chapter, Articles 11 through 25, is subdivided into three sections, setting forth the rules governing (i) the relationship between assignor and assignee, (ii) the debtor and (iii) third parties.

1. Assignor and Assignee The Convention recognizes that the mutual rights and obligations of the assignor and assignee determined by the agreement between them include usages established between them and usages widely known in international trade (Article 11). In the absence of agreement to the contrary, the assignor is held to have represented to the assignee that the assignor has the right to assign a receivable, that the assignor has not previously assigned it and that the debtor owing such receivable does not have any defenses or set-off rights. The assignor does not represent that the debtor has the ability to pay the amount outstanding (Article 12). Thus, the assignor does not represent as to the creditworthiness of the assignee, but only as to the existing contractual relationship between the debtor and assignor. Article 13 establishes the right, as between the assignor and the assignee, to send notification of an assignment and payment instructions to the debtor owing the subject receivable. Article 14 provides for the supremacy of an assignee’s right to receive proceeds and returned goods over that of the assignor or another person with a subordinate claim, regardless of who actually received the proceeds and returned goods.

2. Debtor Articles 15 through 21 set forth the rights and obligations of the debtor. Although a payment instruction sent to a debtor in connection with

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 461 F O R E I G N A N D C O M P A R A T I V E L A W an assignment may change the person, address or account to which payment must be sent, it cannot change the currency of payment or the State specified in the original contract in which payment is to be made (except to the debtor’s own State) (Article 15). Article 16 sets standards for the proper notification to a debtor of an assignment, including requiring that it be in a language “reasonably expected” to be understood by the debtor, permitting it to include future receivables and providing that, in a chain of assignments, notification of a subsequent assignment constitutes notification of all prior assignments, thus preventing a failed notification earlier in the chain of assignments from affecting a subsequent assignment for which a valid notification to the debtor has been sent. The notification rules are important because Article 17 bases the debtor’s proper discharge of its obligations on the notification, providing different rules for the debtor’s payment obligation before and after receipt of notification, as well as special rules in the event that the debtor receives multiple and contradictory notifications or payment instructions or notifications of partial assignments. If the debtor receives notification of assignment from the assignee, it has the opportunity to request adequate proof of an assignment. Article 17 does not affect any other local law grounds on which a debtor may be discharged, such as paying proceeds to a court. Article 18 permits the debtor to exercise any right of set-off arising from the original contract or as part of the same transaction. Other provisions (i) permit the waiver of defenses by the debtor (other than assignee’s fraudulent acts or debtor’s incapacity) (Article 19), (ii) establish rules governing the effectiveness of modifications of the original contract by the assignor and the debtor (Article 20) and (iii) restrict the recovery of payments from the assignee for a breach of the contract by the assignor (Article 21).

3. Third Parties The third section of Chapter IV, Articles 22 through 25, addresses the rights of third parties claiming an interest in a receivable. The Working Group was not able to achieve the consensus necessary to create substantive law in most of the articles of this Section, and instead fall back on a series of choice of law rules. The law of the State in which the assignor is located governs priority issues between an assignee and a competing claimant (Article 22). The application of the law of the assignor’s State may only be denied by a court if it is manifestly contrary to the public policy of the forum State,

T H E R E C O R D 462 A S S I G N M E N T O F R E C E I V A B L E S except that a preferential right in any insolvency proceeding in a State other than the assignor’s State shall be applied against an assignee if the first State has filed a declaration identifying any such preferential right (Article 23). The Working Group was able to agree to recognize the concept of proceeds of a receivable, and to provide that the right to the proceeds received by the assignee followed the rights to the receivable. (Article 24). Article 24 also provides that, if proceeds are received by the assignor, the assignee has priority over competing claimants if (i) the assignor has received the proceeds under instructions from the assignee, (ii) the assignor has segregated the proceeds and (iii) the proceeds are reasonably indentifiable. An assignee entitled to priority has the right to subordinate its claim to other assignees (Article 25).

F. Autonomous Choice of Law Rules (Chapter V) Chapter V applies to matters that are within the scope of the Con- vention but not settled elsewhere (Article 26). This Chapter addresses issues such as the law that applies to the form of the contract of assignment (Article 27), to the mutual rights and obligations of the parties (Ar- ticles 28 and 29) and priority between competing claimants (Article 30). This chapter also states that nothing in the Convention prevents the application of mandatory rules (Article 31) and public policy (Article 32) of the law of the forum State.

G. Final Provisions (Chapter VI) Chapter VI contains fifteen articles dealing with typical treaty law subjects such as ratification, denunciation, reservations and amendments. Of particular note is Article 41, which allows a State to unilaterally declare to be outside the scope of the Convention a specific practice which otherwise would fall within the scope of the Convention. This provision was added to permit, or so as not to impede, the growth of financial innovations that might conflict with the terms of the Convention. States are not permitted, however, to make such declarations with respect to the same categories of trade receivables subject to the anti-assignment provisions of Article 9. This means that, within those categories of receivables, any innovations will have to fit within the structure of the Convention because States will not have the option to exclude such innovations from the Convention. Since such innovations occur largely in the financial markets, however, this should not pose a major problem.

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H. Annex An annex to the Convention allows, but does not require, adopting States to address the priority issues as substantive law rather than as a conflicts rules. It provides the framework for an international filing system (Section II) and provides three alternative systems of priority rules based on: registration (Section I), the time of the creation of the contract of assignment (Section III) and the time notification of assignment has been sent to the debtor (Section IV). Article 42 of the Convention provides the mechanism by which States may declare the application of the appropriate portions of the Annex. The Annex sets forth these three alternatives in an attempt to establish as much uniformity as possible. If all adopting States were to choose one of the three alternatives, determining a particular State’s priority rules would be simplified. There is also hope among advocates of a filing system that, if an international filing system is established among a few States, additional States may join the system as its merits are revealed.

IV. WHAT THE CONVENTION DOES AND DOES NOT ACCOMPLISH In order to address, as far as possible, the needs and desires of the participating States and retain compatibility with various legal systems, it was necessary for the Convention to focus on areas where broad agreement was possible. Among the more important concepts adopted by the Working Group are:

• Rules Relating to Receivables Transactions. The Convention provides specific rules that set forth when the debtor may be noti- fied of an assignment and who the debtor must pay, following assignment, in order to obtain a discharge of the receivable. The debtor’s set-off and recoupment rights are generally pre- served. Furthermore, agreements of a debtor not to assert claims and defenses against an assignee are generally validated. • Bulk, Future and Partial Receivables. The Convention recognizes the validity of assignments of receivables in bulk, present assignments of future receivables, and assignments of partial or undivided interests in receivables. The Convention does not require each receivable to be described in the contract of assignment and does not require a new contract of assignment when a future receivable, which is already subject to an existing assignment, is created. • Anti-Assignment Clauses. The Convention generally overrides

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contractual clauses that restrict assignments of receivables arising from the sale or lease of goods, credit card receivables or receivables arising out of the licensing of intellectual property. • Choice of Law for Priority. The Convention provides that the perfection and priority of an assignee’s interest in a receivable is determined by the law of the State in which the assignor is located. That law also determines whether the assignment is a “true” sale or, rather, a secured transaction. If an insolvency proceeding is commenced by or against the assignor in a State other than the State in which the assignor is located, the insolvency tribunal may not refuse to apply the priority rules of the State of the assignor’s location unless those rules are “manifestly contrary to the public policy of the forum State.” The insolvency court may, however, charge the receivables with preferential claims if otherwise required under the forum State’s insolvency laws. • Proceeds. The Convention gives the assignee a substantive interest in the proceeds of an assigned receivable that are paid to the assignee directly or that are held by the assignor on instructions by and for the benefit of the assignee in a segregated lock box or in any other manner in which the proceeds are segregated from the assets of the assignor. • Optional Provisions. The Convention sets forth optional choice of law rules to be applied in cross-border assignments of receivables even if the Convention would not otherwise apply. The Convention also sets forth in its Annex three alternative substantive priority rules that a State may choose to apply, including a priority rule based upon a notice filing system. In addition, the Annex contains general rules for the operation of such a notice filing system.

Notwithstanding these accomplishments, the Convention could have done more. The most serious deficiency in the Convention is that it lacks a single substantive rule for determining the priority of competing claims to the same receivable. Although the alternative adopted in the Conven- tion, a choice of law rule, is by no means a negligible accomplishment, it is something of a disappointment for those legal practitioners and businesspeople who operate in States which have filing systems and who were hoping to see such a system established worldwide. One of the purposes of the Annex is to provide a framework for future development of such a worldwide system. Perhaps if a few States create an international filing system, others will be able to observe its merits in action.

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Considering the diversity of the world’s economic and legal systems, however, the Convention remains a remarkable achievement. Time after time, the Working Group was divided, not between the haves and the have-nots but between civil law and common law countries. Even a re- quirement which seems as basic (to a common law practitioner) as requiring an assignment to be in writing was stricken from the Convention because some European countries have no such rule. As negotiated and drafted, the Convention is substantially compatible with the existing laws of Working Group countries, including Revised Article 9 of the Uniform Commercial Code. Added to these issues of divergent economic and legal systems was the worldwide tendency of lawyers to favor precedent over novelty. The legal profession is properly resistant to change. For any legal system to function properly, the people who are subject to its strictures must be able to order their lives according to predictable rules and any major alter- ation of those rules disrupts thousands of transactions within that legal system. That the Working Group was willing to entertain the revolutionary concepts embodied in the Convention is a tribute to both the achievement of the Convention’s proponents and the importance of the issue for the global economy. Different philosophies also affected the outcome. The concept of receivables financing is alien to many legal systems and a threat to some. The perceived threat to countries with relatively fixed social classes cannot be discounted: allowing unknown upstarts to use their customers’ credit rating in order to help grow into viable competitors to established entities is nothing short of revolutionary. It is only a slight exaggeration to say that a sort of Catch-22 exists in some countries: you can’t borrow money from a bank unless you have a long relationship with the bank, but you can’t establish such a relationship without borrowing money. The dynamism of the lava lamp society creates as many losers as it does win- ners and forces all players to maximize their efficiency and productivity. The issues on which the Working Group agreed far outweigh the issues on which no consensus was reached and set the stage for the resolution of those unresolved issues in the future. The list of achievements is long, among them: recognition of bulk and future receivables and partial assignments, a set of rules outlining the relationship between debtor, assignor and assignee, the override of anti-assignment clauses and the recognition of an assignee’s right to proceeds. Nearly all of these achievements represent a long and hard effort to achieve consensus within the Working Group. That it was in some ways an educational process was very

T H E R E C O R D 466 A S S I G N M E N T O F R E C E I V A B L E S clear to those who followed the Working Group, and it was encouraging to see delegates from legal systems in which receivables financing is unknown develop a sophisticated and enthusiastic knowledge of the concept over the course of the sessions. There are other, more abstract, contributions that the Convention brings. The concept of receivables financing will become more visible to many countries for whom it would have otherwise remained a vague concept. In particular, countries which adopt the Convention will gain a familiarity with its format and may soon find it to be a useful tool for domestic purposes as well.

V. IMPACT OF ADOPTION ON U.S. LAW AND BUSINESS For lawyers and businesspeople in the United States, as in the rest of the world, the Convention offers excellent prospects for added certainty in international trade. The Convention does not represent a change in existing law so much as it introduces the rules of law into an area of international trade which hitherto has had to rely on private contract law or forego the opportunity. Reliance on private contract law has required more elaborate transactional structures which have contributed to higher transaction costs. In addition, since such structures are not adequate substitutes for a stable and predictable public law regime, resort to private contract law brings with it greater risk and, therefore, higher borrowing costs. The increase in predictability, the reduction in risk and the simplifi- cation of transaction structure permitted by the Convention, therefore, can be expected to benefit international trade in two ways. First, transactions which were previously uneconomical may now be feasible, making credit available to some borrowers which had previously been unable to obtain it. Second, even transactions which would have been economical under the old regime will involve less risk, thus freeing capital for additional transactions. The Convention will not, however, spread such benefits evenly. Be- cause priority issues are determined by local law, only those states which have enacted a domestic law compatible with the Convention and trusted by lenders will benefit. U.S. lawyers drafting the documentation for transactions affected by the Convention will have to be alert to differences between the Uniform Commercial Code and the Convention. Although these differences are not expected to disrupt transactions, they will be traps for the practitio-

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 467 F O R E I G N A N D C O M P A R A T I V E L A W ner who is not alert. The assignor’s location may differ between the Con- vention and the UCC, and, since priority issues are governed by the law of the assignor’s location, this could lead to the “wrong” law being applied to a situation. The Convention and UCC rules also differ as to when an assignee may notify a debtor that its contract has been assigned and as to whether modifications of a contract between a debtor and an assignor are binding on the assignee, with the Convention taking a more permissive position in both cases. In addition to such clear differences, other areas of distinction will arise, particularly with respect to those issues which will fall under the choice of law provisions of the Conven- tion, where a U.S. lawyer will be tempted to apply U.S. law to situations in which the Convention requires foreign law to apply. These differences, however, should not impose an undue burden on U.S. lawyers in such situations.

VI. CONCLUSION The Convention has the potential to do much good and does not appear to have any significant downside. It will help bring greater consis- tency to cross-border transactions and ease the introduction of new financing techniques. It will bring cheaper and more abundant credit to developing countries by reducing risk. It will make credit available to cred- itworthy persons who might otherwise be neglected. In the case of the United States as a creditor of developing countries, it will bring increased certainty in such transactions and reduce their risk. The Convention is a worthy improvement to international trade law. It is the recommendation of the Committee that this treaty be adopted by the United States and generally by all countries of the world.

December 2001

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The Committee on Foreign and Comparative Law

Peter M. Hosinski, Chair Curt D. Buyum, Secretary Alain Armand Martin D. Jacobson Sheetal Asrani Marco V. Masotti Michael Sherrin Barry Christopher P. McClancy Joy C. Barson Guy A. Reiss Thomas F. Berner* William F. Rosenblum, Jr. Warren T. Buhle Nella M. Scalora Drew G.L. Chapman Holger Spamann Catherine Dupuy-Burin des Roziers Brian Wha-Li Tang Gianluigi Esposito Naveen Thakur† Prof. E. Allan Farnsworth Janine Tramontana Louis Fontaliran Kimberly C. Turina Jingwei Lu Fu Catherine M. Ugeux Yao Fu Rafael Vargas Juan Enrique Garcia Tsugumichi Daniel Watanabe Ralph J. Glass Ralph E. Winnie, Jr. Chuanhsi S. Hsu Daniel A. Wuersch

* Member principally responsible for the drafting of this report. † Student member

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 469 On the Path to Inclusion John D. Feerick

John D. Feerick, former Dean of Fordham Law School, delivered the keynote address at the annual luncheon of the Committee on Recruitment and Reten- tion of Lawyers, April 26, 2002.

t is an honor for me to be invited to address you at this Annual Luncheon. You have worked hard to bring opportunities to members of the minority community. You have made possible the re- alization of many aspirations while continuing the struggle toward equal opportunity for all people.* Thirty-nine years ago, Martin Luther King, Jr., spoke to the soulI of the nation, sharing his vision of an America that would “one day . . . rise up and live out the true meaning of its creed—‘We hold these truths to be self evident, that all [persons] are created equal.’”1 His idea and the opportunity it offers is sometimes referred to as the “American Dream.” Broadly defined, it is—in the words of novelist Tho- mas Wolfe—“a chance [which is given to every person] regardless of ... birth, [a] shining golden opportunity—[which allows individuals] the right to live, to work, to be [themselves], and to become whatever [their] vision can . . . make [them].”2 This promise has been embraced by individuals in every sector of our society, from statesmen and philosophers to writers, teachers, lawyers, and

*I acknowledge the invaluable assistance of my friend and colleague at Fordham Law School, Robert Cooper, Esq. 1. Delivered on August 28, 1963 at the Lincoln Memorial in Washington, D.C. 2. Thomas Wolfe, You Can’t Go Home Again, Chapter 31, p. 508 (1940).

T H E R E C O R D 470 J O H N D. F E E R I C K firefighters. Implicit is the idea that no one will be denied a chance to compete to the best of his or her ability because of race, ethnicity, heritage, gender, or for any other reason not bearing on that person’s quali- fications. Or to put it in other words, we all are to be treated equally, and with the respect that we deserve as human beings. The concept of the American Dream is not found in any official document. Its hopeful philosophy has been expressed—in one form or the other—throughout 2,500 years of history. As a concept, it is embodied in our Constitution, as amended, in writings of historical importance, and in the actions of people on a daily basis. Its roots can be traced to ancient Greece, which established the world’s first democracy. Nowhere, however, has the Dream been so well-realized, and by so many people, as it is in our nation in the present day. And yet, as we all know, the Dream is only partially complete. Indeed, it does not reach every corner of the land and touch every person equally. It does not reach to every corner of the legal profession. There is still much more to do before the Dream can become a reality for all. Those of us here today come from different backgrounds, but we are all joined in the common purpose of seeking a better life for ourselves and our families while simultaneously pursuing our own personal vision of what that life should be. And—I suspect—the opportunity that we enjoy has been earned through the labors of our families and many gen- erations of people whose names we might not even know, but whose courage and integrity gave us an opportunity to do our best. As Justice Thurgood Marshall once noted, “None of us got where we are solely by pulling ourselves up by our bootstraps. We got here because somebody—a parent, a teacher, an Ivy League crony or a few nuns—bent down and helped us pick up our boots.”3 So many of us are inheritors of the American Dream. We are also its keepers, with a special responsibility to pass it along to make sure it lives for the next generation, where its flame can burn more brightly than it does now, where it can open itself to all people in every walk of life. As we look at our own profession, we can see that it needs the same vision and courage to create change and opportunity for all citizens as with any other area of society. Fundamental change, of course, is not easy to achieve. Some forty years ago, when I graduated from law school, “the total number of black lawyers and judges was only 2,012, out of a total of

3. Quotation from the Internet website:Brainyquote. See, http:www.brainyquote.com.

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205,5154 lawyers and judges” nationwide—less than one percent. By 1990, due to the Civil Rights movement, the number of African American attorneys had risen to 25,704, but this was out of a total of 777,119 lawyers, or 3.3%.5 Today, according to a recent study by the American Bar Association, minorities, in general, continue to be under represented in the legal profession, with “African Americans and Hispanics [making] up only 7.5% of all attorneys.”6 This figure is in stark contrast to the minority presence in our law schools, among “accountants (14.3%), college and university teachers (9.7%), and all professions (12.5%).”7 At the same time, it is important to note that the overall figures for minority hiring by law firms between 1993 and mid-2001 rose from 8% to 13%.8 The National Law Journal has reported in a survey of the nation’s 250 largest firms, covering the two-year period ending in December of 1998, that overall associates grew in numbers by 20%, with Black associates increasing by 27.5%, Hispanics by 50%, and Asian Americans by 72%.9 Part of this success is due to the work done by this Committee. You have laid the ground work for professional development and assessment through your Minority Fellowship Program, Attorney Retention Tracking Program, and other initiatives. The Fellowship Program has been an outstanding success for the last decade, and I know that a review of past Fellows indicates that many have gone on to build strong and successful legal careers. Such support cannot be overestimated, a fact illustrated by a recent Virginia Law Review article. It found that while “people of color with fewer lawyers in their families are disadvantaged” in their knowledge of legal careers, “50% of white law students have at least one relative in the legal profession who exposes them to the occupation and its culture....”10

4. Legal Education and Professional Development—An Educational Continuum: A Report of The Task Force on Law Schools and the Profession: Narrowing the Gap, American Bar Association Section of Legal Education and Admissions to the Bar (1992), p. 25. (See note 44.) 5. Id. 6. Elizabeth Chambliss, Miles to Go 1998: Progress of Minorities in the Legal Profession, ABA Comm. On Opportunities for Minorities in the Profession, Report (1998). 7. Elizabeth Chambliss, Miles to Go 2000: Progress of Minorities in the Legal Profession, ABA Comm. On Opportunities for Minorities in the Profession, Report (2000). 8. National Jurist, March 2002, vol. 11, no. 6, pp. 21-22. 9. National Law Journal, December 14, 1998 at A1. 10. Camille A. Nelson, “Toward a Bridge: The Role of Legal Academics in the Culture of Private Practice,” Journal of Law and Policy, Vol. 10, No.1, p. 117, citing Daria Roithmayr, “Barriers to Entry: A Market Lock-in Model of Discrimination,” 86 Va. L. Rev. 727, 785.

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The Fellowship Program, of course, grew out of the Association’s adoption in 1991 of the Statement of Goals of New York Law Firms and Corpo- rate Legal Departments for Increasing Minority Hiring, Retention and Pro- motion. The work then set in motion continues today, and I applaud the members of the Committee and those signatories who have pledged to implement specific steps and programs toward increasing the numbers of minority attorneys in their firms. The placement and retention of minority lawyers remains among one of the most admirable and elusive goals in our profession. The goal is exceedingly important because it sends out the message that if you can make it at the major firms, you can make it anywhere. Adding to the challenge in achieving the goal is the high attrition rate of newly hired associates in general. For example, a survey of 154 firms—published by the National Asso- ciation for Law Placement in March 1998—showed that of the more than 10,300 associates from the Classes of 1988 through 1996, “nearly 1 in 11 associate hires left their firms within the first year of employment,”11 and 43% left after three years.12 Within five years, 64.6% had left.13 Given this extraordinary loss of newly hired lawyers of all backgrounds, it comes as no surprise that the retention of minorities requires a special understanding of various factors relating to the legal workplace, and what the law firm offers or fails to offer to those who practice there. These statistics also underscore the critical relationship between retention and recruitment. They strongly indicate that the success of the former is related to the success of the latter, with greater recruitment ultimately pro- ducing a greater continuing minority presence, a fact which is well-known to many here today. While law firms continue to struggle with recruitment and retention of members of minority groups, some areas of our profession have made highly successful strides in the last forty years. The area which I know best is the field of legal education. There are, of course, many differences between a law firm and a law school, something I appreciate as having once been a hiring partner at a major firm. At the same time, I believe that there are enough similarities between the two in regard to recruitment and retention that I would like

11. The NALP Foundation for Law Career Research and Education, March 1998. Available online at http://www.nalp.org/foundation/keepers.htm 12. Id. 13. Id.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 473 ON T H E P A T H T O I N C L U S I O N to take a few moments to suggest some ideas which could expand on programs already in place at firms or which might suggest new approaches for addressing the subject at hand. Part of the success for the diversity of law schools is due to the vast storehouse of information which helps schools to be more effective in their recruitment efforts. This information involves material supplied by prospective students of all backgrounds. It includes a detailed application form, references from college professors who evaluate an applicant’s suit- ability for law study, and a personal statement which is both a self-por- trait and a writing sample that demonstrates a student’s skill and logical reasoning. Added to these diagnostic tools are grade point averages and results of law school admission tests. While grades and LSAT scores remain important indices, the other information often plays a crucial role in the final determination. In addition, law schools have standing admission committees, whose collective experience comprises decades of involvement with recruitment and determining which students are best suited to stay the course. Also important to an applicant’s success are counselors at the undergraduate level, including pre-law advisors, class deans, and student support groups which bring together students of similar interests allowing them to pool their knowledge so they can better understand what legal education is all about. All of these factors combine to give students valuable information about many aspects of the law admission process, while preparing them psychologically for the competition, long hours, and demanding course load which they will have to accept if they are to successfully meet the challenge of legal education. In addition, my law school, as well as many others, has developed academic enrichment programs to help minorities and other students make a successful transition from college to law school and achieve a success rate that is comparable to non-minorities. All of these activities at American law schools have produced remarkable results in achieving the goal of diversity in the student population. Twenty-five years ago, for example, Fordham was typical of many around the country, with little more than 2% of the total student population drawn from minority groups. Today, thanks in part to a general increase in the applicant pool, special affirmative action programs on the undergraduate level, and our own resolve to see that the School becomes as diverse and selective as it can possibly be, self-identified members of minority groups constitute almost 25% of every JD class. Nationally, out of a total of 127,610 JD students enrolled in fall 2001, 26,257 (or approxi-

T H E R E C O R D 474 J O H N D. F E E R I C K mately 21%) were members of minority groups,14 showing the tremen- dous results of the efforts of America’s law schools. How then to build on the successful recruitment of minorities to our law schools to assure their success in the practice of law? First of all, I would like to emphasize the importance of commitment by leaders of institutions. Commitment involves a persistence, persever- ance and an almost missionary kind of zeal. Law firm leaders, bar presidents, and chief judges must constantly speak to the subject, prodding, pushing, and engendering in our minds and hearts the spirit of inclusion. Particularly in bad economic times, we need the energy and vision of leaders so that those seeking careers will not find additional barriers to their success which are heaped on top of an already difficult struggle. As a legal educator, I have experienced first hand how someone in a position of leadership can help along change. When I entered my position in 1982, I was jarred when a white student, in his first year at the School, caught me completely by surprise—and gave me much to think about—when said to me, “I’m disappointed that there aren’t more minority students at the School.” I resolved at that moment that no student at Fordham should ever be able to say that again and to make minority presence a central part of my tenure. Also indelible in my conscience was the lament expressed in opinions of Justice Thurgood Marshall, concerning the historical treatment of Af- rican-Americans. As he began his Bakke dissent:

Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave.15

He then went on to lay out the historic discrimination in America against African American from colonial times up to the present. Another incident at my school a few years later stirred me a similar way. It involved an African American student who was part of a group

14. American Bar Association statistics for students enrolled in ABA approved law schools in fall 2001. Available online at http://www.georgiajuris.com/private-cgi-bin/Content/ FULL1017513109.cfm 15. University of California Regents v. Bakke, 438 U.S. 265, 387-88 (1978).

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 475 ON T H E P A T H T O I N C L U S I O N seeking more support from the School. After listing to several complaints, I looked at him and said, “What is it that you and our other minority students really want.” Without hesitation, he answered, “I want to be like you, have the same opportunity as you, to live where you live, to own a home, to send my children to the same schools, to have a good job, etc.” Even though I do not remember the names of these students, their words have resonated with me over the years, and helped frame the way I defined my responsibilities toward building a strong minority presence at Fordham. I can’t say enough about the importance of leaders being accessible and having conversations with young people. Second, mentoring cannot be over emphasized as an important means of cultivating success. As Justice Marshall remarked, none of us got where we are solely through our own efforts. We can all think of countless acts of kindness and caring which were extended to us over the course of our lives which pointed us in the right direction. We can remember advice which steered us in the right direction, which gave us hope when the light seemed to fail, which made us believe in ourselves when we had begun to doubt our own abilities. Sometimes these mentors are part of our family. At other times they are someone we meet along the way. But whatever their status, their true worth can never be overestimated, for without them, some of us—perhaps, even most of us—would not have become who we are. Here at the Association, about two years ago, Justice Ruth Bader Ginsburg described getting her first job: “Gerry Gunther, who was my teacher at Columbia Law School [and] in charge of getting clerkships ... for students [contacted] a particular judge in the Southern District who hired only Columbia clerks.... Gerry called the judge and said, ‘I have selected Ruth Bader Ginsburg for you.’ The judge responded, ‘Are you out of your mind? Not only is she a woman, but she has a four-year old child, and I sometimes work late and on Sundays....’ Well, Gerry said, ‘If you don’t give her a try I will never refer another Columbia clerk to you. But as insurance, if you take her and she doesn’t work out, I have an agreement with a young man in her class. He will take leave from his Wall Street firm and fill in for Ruth.”16 Without a mentor, just think of how different her life—and Ameri- can legal history—might have been. The importance of mentoring was underscored to me in a very recent conversation I had with a Hispanic woman graduate of Fordham, one of

16. “A Conversation with Ruth Bader Ginsburg,” The Record of the Association of the Bar of the City of New York, Winter 2001, Vol. 56. No. 1, pp.10-11.

T H E R E C O R D 476 J O H N D. F E E R I C K the most talented students I have ever met, who responded to my inquiry of why she didn’t pursue a career in a large firm as follows: “I worked in a major firm as an intern and summer associate and could not find anyone like myself, who was understanding of my culture and background, leaving me with the impression that there was no long- term fit for me in such a firm.” I responded to that, “We need people like you to start that precedent, else we will make no progress at all.” I sensed that all she needed was a few mentors in that firm and she would have been on her way. Mentors are important to every human being. But they are critically important, I believe, to those who find themselves on the other side of the glass looking in. It is quite one thing to grow up knowing how the system works. It is something else entirely to have to struggle to learn the ropes which others have already learned through the presence of some significant role model in one’s family. It has to be very frustrating to be handicapped by the lack of such mentoring, particularly in the competi- tive world of legal practice. I therefore strongly encourage the members of firms seeking to retain minority attorneys to adopt and incorporate strong mentoring programs as an integral part of their practice. From my personal experience at a major firm and as dean at a school having over 100 minority and non- minority alumni serving as mentors to our students, I have come to learn of the value of a wise word at the right time and the importance of knowing that someone who has made it sees potential in you and is there for you. A good mentor must be compassionate, motivated, empathetic, accessible, and possessed of a strong sense of ethics. Good judgment is another key element, and a good mentor should be someone who knows when to reassure and when to challenge the person being mentored. Law firms, bar associations, and law schools have—with all their creative abilities—the opportunity to create here in New York the nation’s finest mentoring programs. At a time of great challenge, we often find our greatest opportunities. As important as mentoring is in achieving a significant minority presence, however, its overall institutional success depends fundamentally upon the commitment which is made to the area of recruitment. This is a prin- ciple which has been well-demonstrated in the field of legal education, and, I feel, should have resonance in legal practice. If there is one thing that characterizes the evolution of American law schools over the last two decades—other than the steep rise in tuition

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 477 ON T H E P A T H T O I N C L U S I O N and the rapid development of computerized learning tools and clinical education—it is the way in which students are recruited and the efforts which are made to cultivate an academic environment which is truly representative of the diversity of society and nurtures and promotes the success of all. Schools go to great lengths to reach out to all areas of the local and national community to seek students from all backgrounds. Admissions offices send representatives to a number of venues each year, including admissions fairs, minority student assemblies, and various undergraduate institutions. Our admissions committee and many faculty members work collectively and individually to recruit highly talented students, keeping in touch with them through an extended program of correspondence. The School holds an accepted students day for students and their families, which features short talks by faculty and administrators and tours given by volunteers from the student body. All of these efforts have made our School and others much stronger because of the presence of many minority students. A call for higher standards in recruiting by law firms was recently made by the New York County Lawyers’ Association Task Force to Increase Diversity in the Legal Profession. Some of their suggestions parallel the ongoing efforts to recruit minorities at the nation’s law schools, while others are unique to the profession. Among the many ideas put forth, the Task Force encouraged firms to “initiate, or participate in committees, programs or projects that involve diverse individuals [,while] expand[ing] their search efforts for a diverse group of potential employees....”17 They also advised that “[l]awyers ... be recruited from a broad range of law schools to increase the pool of lawyers from which to hire, and recruited laterally from the public sector to work in private firms and corporations.”18 In addition, they urged potential employers to “be proactive in reaching out to a diverse group of legal talent, and network with individuals and organizations with access to a broad range of candidates, such as minority bar associations and job fairs.”19 Further suggestions included listing job opportunities on “employers’ websites so that information about such opportunities will be available to the widest possible audience.”20

17. “Report of the Task Force to Increase Diversity in the Legal Profession,” The New York County Lawyers’ Association, January 2002, p. 31. 18. Id. 19. Id. 20. Id.

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With respect to this latter idea, I would note the Internet has become a great source of information and a wonderful means of reaching a vast and diverse audience. At present, at most schools, 90% of applicants apply by downloading application forms, and thousands of prospective students visit their sites each week. And now I conclude by noting that the Committee on Recruitment and Retention marks yet another year of accomplishment and dedication to seeing that the promise of the American Dream is open to all who seek it. Your efforts have opened doors that once were closed and have recognized, as President Theodore Roosevelt once noted, “[f]ar and away the best prize that life offers is the chance to work hard at a job worth doing.”21 Your efforts also remind us that there is still much to do before this goal is achieved, recalling the words of Justice Thurgood Marshall, who in one of his famous dissents declared: “For far too long, the doors ... have been shut... If we are ever to become a fully integrated society, one in which the color of a person’s skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors.”22 In honoring the words of President Roosevelt and Justice Marshall, I would suggest that we honor the truest meaning of the American Dream— that we want for others the same opportunities that we want for ourselves and our families and friends. Thank you.

21. Labor Day Address, Syracuse, New York, 1903. 22. Bakke at 401-2.

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 479 Report on the Buenos Aires Conference on Pro Bono and Access to Justice The Committee on Inter-American Affairs

n the eve of Argentina’s ongoing economic and political crisis that has placed the plight of its poor in bold relief, a Conference entitled “Pro Bono and Access to Justice” was held in Buenos Aires, Argentina, co-sponsored by The Association of the Bar of the City of New York (the “Association”), its corresponding city bar or- Oganization in Buenos Aires, the Colegio de Abogados de la Ciudad de Buenos Aires (the “Colegio”), and the University of Palermo School of Law (“Palermo Law School”). The Conference was organized in response to interest of the private bar and non-governmental organizations (NGOs) in Argentina to institutionalize pro bono efforts and promote access to justice. It was well attended by representatives of many of the leading law firms and NGOs from Argentina as well as other countries. In the view of many participants, including the Committee on Inter- American Affairs of the Association, the Conference suggested an emerging commitment to the provision of pro bono legal services by the private bar in Argentina and other countries in Latin America. Nascent efforts indicate willingness on the part of lawyers in other countries of the Americas to reexamine and enhance their commitment to provide free legal services to segments of populations currently underserved by the legal profession. Due to the Association’s position as the bar association for the City of New York, the leading legal center in the Americas, and the Association’s

T H E R E C O R D 480 P R O B O N O A N D A C C E S S T O J U S T I C E historical commitment to pro bono legal services, it is well-positioned to contribute to the efforts of our corresponding bar associations to enhance their own pro bono efforts.

1. Background for Conference The origins of the Conference can be traced to the International Conference on Crisis in Access to Justice hosted by the Association in 2000 under the leadership of its past-President Michael Cooper. At that conference, Joan Vermeulen, consultant to the Association and previously Executive Director of New York Lawyers for the Public Interest, and Mar- tin Bohmer, Dean of the Palermo Law School, began to discuss ways to promote pro bono legal services in Argentina. These efforts coincided with an ongoing project of the Ford Foundation that targets NGOs and law schools in developing countries to encourage collaboration with the private bar in providing pro bono legal services. As a result, Dean Bohmer organized meetings in Argentina for Ms. Vermeulen to discuss the pro bono experience of the New York bar with representatives of law school, NGO and private bar communities. As a partial result of these meetings, the Colegio in Buenos Aires organized a Pro Bono Commission with the stated objective of identifying and undertaking the representation of cases in the public interest. This Commission, initially chaired by Martin Zapiola, works closely with the leading law firms of Buenos Aires, representatives of which comprise its membership. In its first year of existence, it has already recorded some notable successes. In Spring 2001, with the support of Evan Davis, then President of the Association, Ms. Vermeulen, on behalf of the Association, Dean Bohmer and Professor Paula Bergallo, on behalf of Palermo Law School, and representatives of the Colegio began to discuss the possibility of the Confer- ence. The Committee on Inter-American Affairs of the Association was designated to assist Ms. Vermeulen in the coordination of the Association’s participation. The Colegio was represented by Mr. Zapiola and Guillermo Walter Klein, who facilitated the organizational efforts through his participation in New York at several meetings. Hernan Slemenson, an Argen- tine lawyer and a member of the Committee on Inter-American Affairs also supported these efforts.

2. Pro Bono Legal Services in Latin America Members of the private bar in Argentina, as in most of Latin America, are not new to pro bono legal services. On the contrary, individual law-

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 481 I N T E R - A M E R I C A N A F F A I R S yers and firms have historically provided services on an ad hoc basis to institutions and needy persons. Indeed, many firms have longstanding relationships with leading charitable organizations, providing services on a pro bono or reduced fee basis. Nevertheless, institutionalized pro bono efforts within law firms are extremely limited. Similarly, Latin American bar associations and other bodies governing the conduct of lawyers have yet to include in their ethical rules or guidelines to the profession any guidance regarding the provision of pro bono legal services. The needs for legal services to the poor have not been entirely neglected, however. In various Latin American jurisdictions, the response of bar associations and law schools has included the mandatory provision of pro bono legal services during one year of law school, mandatory internships in the public sector prior to admission to the bar, judicial authority to appoint counsel for indigent clients and bar association clinics open to the public free of charge. Unfortunately, though there are notable exceptions, these efforts have generally suffered from the inexperi- ence of the law students and lack of supervision (in the case of mandatory pro bono and internships), and from being vastly under-funded and under-sized relative to the dimensions of the need for legal services (in the case of judicially mandated and bar association efforts). Leaders of the bar in Argentina and several Latin American countries are increasingly aware that concerted efforts are required both to strengthen existing institutions and to develop new traditions, particularly within the private bar, for providing pro bono legal services. Another important factor to the development of pro bono legal services in Latin America is the participation of local NGOs. In the United States, NGOs (including, for example, the Legal Aid Society, the American Civil Liberties Union, New York Lawyers for the Public Interest, the Law- yers Committee for Human Rights and, more recently, Pro Bono Net) provide essential leadership and support to the private bar’s pro bono efforts. Indeed, many of the more successful NGOs in New York were founded by members of the private bar, and most receive considerable financial and other support from the private bar. In Latin America, the strength and variety of the NGO community varies significantly from country to country (with Brazil, for example, having a relatively strong NGO community). However, in all but a few instances, there is little contact between leading law firms and the NGO community. This lack of contact is partially due to the legacy of military dictatorships and periods of political fragmentation in which “establishment” law firms and NGOs were generally on opposite sides. Some who

T H E R E C O R D 482 P R O B O N O A N D A C C E S S T O J U S T I C E lived through periods of military rule are burdened with a residue of mis- trust that complicates collaboration between some NGOs and leading law firms. Even so, many in the NGO community and leading law firms now recognize that, by working together, they can potentially perform comple- mentary roles for the betterment of their societies. For example, several junior partners from leading Chilean law firms have formed Fundación Pro Bono in Santiago, Chile, for promoting pro bono legal services in Chile and other countries in the region. This NGO, which already has a full-time staff, has been active in identifying potential pro bono matters and obtaining counsel. Fundación Pro Bono is currently developing an aspirational statement regarding pro bono services to which it expects leading law firms in Santiago to subscribe.

3. The Conference The Conference, scheduled to occur September 13-15, 2001, was originally organized as a joint meeting of both the leading law firms and principal NGOs of Buenos Aires. Also participating were representatives of NGOs from Australia, Chile, South Africa and the United Kingdom and from three Chilean law firms. Funding was provided by the Ford Founda- tion, and the U.S. Government, as well as from the private bar in Buenos Aires and New York. Notwithstanding the tragic events of September 11, 2001, the NGO portion of the conference went forward as originally scheduled because most NGO participants from the United States, Australia and South Af- rica were already in Buenos Aires. The private bar portion of the conference had to be postponed because the U.S. delegation was unable to leave New York due to airport closures and the dimensions of the tragedy suffered. Accordingly, a decision was made to hold the private bar portion of the conference during November 29 and 30 and December 1, 2001. The Conference participants, listed in Annex I to this Report, included 17 Buenos Aires law firms and 15 NGO or other organizations from Argentina, as well as law firms and NGOs from outside of Argentina.

A. The NGO Conference At this session, held on September 13 and 14, 2001, NGO leaders from Argentina, Australia, Chile, South Africa, the United Kingdom and the United States discussed unmet needs for legal services in each of their countries, and the importance of developing close relations between law firms and NGOs. By virtue of the monopoly accorded lawyers—sole access to the repre-

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 483 I N T E R - A M E R I C A N A F F A I R S sentation of clients in court—participants agreed that lawyers have a professional responsibility to ensure that the legal system is accessible to poor people. In the United States, this responsibility is set forth in aspirational statements, such as the Code of Professional Responsibility in New York which states that “A lawyer has an obligation to render public interest and pro bono legal work.” The American Bar Association has urged all lawyers to provide at least 50 hours of pro bono services annually. Some NGO participants suggested that a moral obligation for undertaking pro bono work also exists, arising from the injunction in the world’s religions and secular philosophies to assist people in need. It was noted that pro bono work takes different forms, such as individual representation on basic issues like housing and social benefits, and impact litigation relating to policy matters. Pro bono opportunities exist for litigators and transactional lawyers. Indeed, every part of the legal profession has the opportunity to undertake pro bono work and has a contribution to make. Participants agreed that in each of their countries, relations between NGOs and the private bar need to be closer. NGOs, with small staffs and small budgets, need to draw on the legal resources that law firms can provide. Law firms need the expertise of NGOs in helping to identify appropriate cases and to provide assistance to the firms’ lawyers, through training and mentoring, on legal matters in areas with which they may initially be unfamiliar. Conference participants agreed that bar associations, like the Colegio and the Association, can perform an important role in helping the private bar and NGOs work closely together. Law schools, like the University of Palermo School of Law, can perform an important role in instilling the pro bono ethos in law students, an ethos that will remain with many lawyers as they pursue their careers in the law.

B. The Private Bar Conference The private bar conference was held in Buenos Aires, November 29 and 30 and December 1, 2001. Argentine constitutional reforms, since Argentina’s return to democracy, have included the incorporation of rights created by international treaties, the enumeration of domestic constitutional rights and the establishment of explicit constitutional causes of action for private citizens and NGOs. These reforms have facilitated public interest litigation in Ar- gentina. For example, during the Conference, in response to a lawsuit undertaken by the Colegio’s Pro Bono Commission and filed on a pro

T H E R E C O R D 484 P R O B O N O A N D A C C E S S T O J U S T I C E bono basis by a Buenos Aires law firm working in close collaboration with a prominent NGO, a trial court mandated public disclosure of financial reports by members of Congress. Not unlike in the United States, there is a substantial unsatisfied need for legal services in Argentina. Public defenders in criminal matters are over-burdened with staggering caseloads. Court-appointed attorneys cannot hope to serve effectively all of the clients seeking their help. Although the public bar association requires new members to provide legal services to the indigent, those efforts are also insufficient. Accordingly, private law firms can play an important role in the provision of pro bono services. The critical importance of an effective and independent judiciary was discussed with special attention to the role that bar associations can play in promoting judicial independence, the rule of law and the delivery of pro bono legal services in Argentina. In addition to the Conference itself, members of the Association’s delegation visited groups of lawyers from nine different Buenos Aires law firms. These meetings were intended to encourage interested attorneys at leading law firms to undertake pro bono work and to answer questions about how U.S. firms structure and promote their pro bono programs. Sessions were held regarding structuring a pro bono program in a law firm, including building consensus for it within the firm, formulating a written pro bono policy, securing participation in pro bono cases by the firm’s attorneys, and increasing pro bono activity as the firm’s program gains momentum. Participants also noted the interdependent relationships of law firms, bar associations, NGOs and law schools in delivering pro bono legal services. Whereas law firms can bring substantial resources to bear on cases and represent a significant potential source of financial support to NGOs, they, in turn, frequently rely upon NGOs for referrals of pre-screened pro bono clients and specialized expertise in poverty law or other areas of law to assist in the representation. The participants stressed the need for communication and interaction among these interested groups to create a foundation of trust that allows effective collaboration. A hypothetical environmental case was used to review the management of pro bono cases in law firms, including screening for substantive conflicts, staffing and supervision, and handling of press inquiries. Participants discussed technology’s potential to empower lawyers to provide legal services they may have previously shied away from due to a lack of expertise or information. The conference concluded with an open discussion of the participants regarding how best to develop and strengthen law firm pro bono

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 485 I N T E R - A M E R I C A N A F F A I R S efforts in Argentina and other Latin American countries. Several of the Argentine participants noted the relative lack of trust that persists between NGOs and private law firms, which arises in part from prior periods of military rule. Conference participants from the United States observed that, although the circumstances were different, there was a similar history of distrust between members of civil rights and civil liberties organizations and many private law firms in the U.S. during the 1950s and 1960s, but that this distrust gradually diminished as societal mores shifted in favor of civil rights, diversity and access to justice. Participants from Argentina expressed their hope that similar relationships will develop over time between NGOs and private law firms in their country. Participants generally agreed that private bar initiatives to enhance pro bono efforts should include:

• Leadership: The leadership of prominent lawyers in the bar and senior partners within the firms in defining and promoting pro bono legal services as an important component of a bar association’s or a law firm’s culture; • Structure: The development of institutional structures within bar associations and law firms to facilitate the rendering of pro bono legal services and recognizing their efforts; • Links to NGOs: Closer links between the private bar and NGOs or law schools for support private bar pro bono efforts must be developed; and • Information: Distribution of information about potential matters and cases, taking advantage of technology to achieve this on a low cost basis.

Some participants urged future consideration of a task force to develop a common statement of principles regarding pro bono legal services. It was suggested that the process of discussing and negotiating a text among various bar associations or law firms could help focus attention on the pro bono issue. Other participants felt it was more important to focus energies and resources on creating structures and undertaking representations. At the conclusion of the Conference, Juan Pablo Olmedo, from Fundación Pro Bono in Chile, invited the participants to meet in Santiago, Chile for a follow-up conference. The invitation was well received. On Saturday morning, several U.S. delegates met with members of prominent NGOs in Argentina to discuss how NGOs might work with

T H E R E C O R D 486 P R O B O N O A N D A C C E S S T O J U S T I C E members of the private bar in public interest litigation. Many expressed the hope that NGOs and the private bar will find common ground on issues of shared concern.

4. Conclusion Even as the Conference concluded, withdrawals from bank accounts in Argentina were restricted, ushering in an economic and political crisis that has already increased the ranks of—and exacerbated the plight of— Argentina’s poor. As one conference participant noted, the need for pro bono efforts by private law firms in Argentina literally intensified during the course of the Conference. Although the reasons for Argentina’s current crisis are multiple and complex, this crisis places in stark relief the critical importance of good government and the proper functioning of civil society in underpinning the economic and social stability that modern societies require to prosper. Lawyers are uniquely empowered by education and position to address these challenges. Pro bono legal efforts, including both service to the poor and high impact litigation, promise that through more active participation in civil society, individual lawyers, law firms and NGOs can act posi- tively to help bring about both incremental and more dramatic societal improvements. The Association has agreed to co-sponsor, with Fundación Pro Bono in Chile, a pro bono conference to be held in Santiago, Chile in Decem- ber 2002. In Argentina, meanwhile, the Association continues to support pro bono efforts that are already beginning to deliver results.

June 2002

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The Committee on Inter-American Affairs

Jeffrey B. Gracer, Chair* Jana W. Mansour, Secretary Ricardo A. Anzaldua-Montoya Carlos E. Martinez Marcio M.S. Baptista Andrea Morgan Mercado David G. Becker Gildardo Michel-Garcia Andrew R. Coyne Allen D. Moreland S. Todd Crider* David Eli Nachman Maria Diaz Antonio M. Ocasio Peter Rahul Eccles John D. Orleans Daniel M. Ferrere Mauricio Paez Mauro A. Finatti Beatrice Prati Patricia Marie Franklin Melissa Y. Raciti-Knapp Gabriela Garate Santiago Jose Rendon Eduardo Geli Peter C.O. Schliesser Aureliano Gonzalez-Baz Kenneth L. Schwartz Katherine Hall-Martinez Andrew William Sheldrick Marcello Hallake Hernan Slemenson Jose A. Lau Dan Carlos J. Spinelli Diana V. Lopez Jose Ramon T. Villar Hernan Lopez

*Principal authors of the report.

The Committee would like to acknowledge the assistance of Bill Dean, Joan Vermeulen and Martin Bohmer in the preparation of the report.

T H E R E C O R D 488 P R O B O N O A N D A C C E S S T O J U S T I C E

ANNEX I LIST OF PARTICIPANTS IN BUENOS AIRES CONFERENCE

NEW YORK PARTICIPANTS Association of the Bar of the City of New York Simpson Thacher & Bartlett Cleary, Gottlieb, Steen & Hamilton Skadden, Arps, Slate, Meagher & Flom Fordham Law School Sullivan & Cromwell JPMorgan Chase & Co. Torys LLP New York Lawyers for Public Interest Volunteers of Legal Service Probono.net

PARTICIPATING ARGENTINE LAW FIRMS Allende & Brea Klein & Franco Baker & McKenzie Le Pera & Lessa - Abogados Cabanellas, Etchebane & Kelly Llerena & Asociados Abogados Cárdenas, Cassagne & Asociados Marval, O’ Farrell & Mairal Estudio Beccar Varela M. & M. Bomchill Estudio Binstein Negri, Teijeiro & Incera Estudio Lago Perez Alati, Grondona, Benites, Arntsen, Martinez Estudio Moltedo Estudio O’Farrell de Hoz (h) Hope, Duggan & Silva Petersen & Zapiola Guerrico

OTHER PARTICIPATING ARGENTINE ORGANIZATIONS Asociacion por los Derechos Civiles [CEADEL] Federación Argentina de Colegios de Abogados Centro de Estudios Legales y Sociales [CELS] Fundación Ambiente y Recursos Naturales Colegio de Abogados de la Ciudad Fundación Cambio Democratico Fundación de Buenos Aires Poder Ciudadano Colegio Público de Abogados Fundación Rumbos Redi I de la Capital Federal NECIP Comunidad Homosexual Argentina Public Interest Law Clinic of the Consumidores Activos University of Palermo Defensoría del Pueblo de la Ciudad Universidad de Buenos Aires de Buenos Aires

PARTICIPATING ORGANIZATIONS FROM OUTSIDE OF ARGENTINA AND NEW YORK AUSTRALIA: Legal Aid Board Public Interest Advocacy Centre Legal Resources Centre University of Witswaterand Law School CHILE: Fundación Pro Bono UNITED KINGDOM: Philippi Yrarrazaval Pulido & Brunner Dexter Montague & Partners Prieto & Cía

SOUTH AFRICA: Lawyers for Human Rights

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 489 A Selective Bibliography Legal Dictionaries in English and One or More Other Languages1 The Committee on Foreign and Comparative Law

Afrikaans Economic and Legal Dictionary; English-Afrikaans, with an appendix of legal Latin terms. By E.H.D. Arndt, A.J. Norval, and J.D. Louw. 1933, J.L. van Shaik, Pretoria, 309 pp.

1. The Committee wishes to note that this bibliography is a selective one intended to be a useful resource for practitioners and other users. It is not meant to be comprehensive or current in respect of any particular language. It was compiled from suggestions of Committee members, other members of the bar, and publicly available resources. The Committee cannot guarantee the accuracy of any of the sources cited.

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Albanian Fjalor i terminolojise juridike: anglisht-shqip, shqip-anglisht. Law Dictionary: English-Albanian, Albanian-English. By Shefije Hasani. 1998, Prishtinë: Universiteti i Prishtines, Fakulteti Juridik, 386 pp. Arabic A Dictionary of International Relations and Conference Terminology, English- Arabic. By Hassan Abdullah. (Date of publication not available). Librarie du Liban, Beirut, 654 pp.

Faruqi’s Law Dictionary: Arabic-English and English-Arabic. Two Volumes: Arabic- English, 3rd edition, 1986, 380 pp.; English-Arabic, 4th edition, 1982, 758 pp., By Harith Suleiman Faruqi. Librarie du Liban, Beirut.

Legal and Documentary Arabic reader; with explanatory notes, exercises, vo- cabularies and model answers. Two volumes. By M. Mansoor. 1965, E. J. Brill. Leiden.

Law Dictionary. 3rd edition. By Dr. Ibrahim Al-Wahab. 1988, Librarie du Liban, Beirut. Armenian A Polyglotic Law Dictionary in English, French, Armenian, and Turkish. By Mesrob G. Kouyoumdjian. 1979, Vosguedar Press, Cairo, 386 pp. Angleren-hayeren hayeren-angleren iravabanakan bararan. English-Armenian- Armenian-English law dictionary. By Carl Ulbricht. 1994. 106 pp. Belgian (French) Dictionary of Anglo-Belgian Law. 1st edition. By L. E. F. Anspach and A. M. Coutanche. 1988, Rothman FB, 181 pp. Bulgarian Bulgarsko-Angliiski Iuridicheski Rechnik. By Blagovesta Balkandzhieva. 2000, Sofi-R, Sofiia, 560 pp. Chinese Dictionary of Law, English-Chinese. 1999, Peter Collin Publishers, Middlesex, England, also World Publishing Corp., Beijing. English-Chinese Dictionary of Law. 1st Edition. 1999, Publishing House of Law, Beijing.

English-Chinese and Chinese-English Glossary of Legal Terms. 3rd Edition. 1998, Department of Justice (Lu Zheng Si), Hong Kong SAR. Web-based ver- sion: http://www.justice.gov.hk/homeglos.htm.

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Glossary of Applied Legal Terms. 1975, Chinese University of Hong Kong, Hong Kong, 890 pp.

A Glossary of Law for Hong Kong. English-Chinese/Chinese-English. May 1998, The Commercial Press Ltd., Hong Kong. A Dictionary of Chinese Law and Government: Chinese-English. By Philip R. Bilancia. 1981, Stanford University Press, Palo Alto, 840 pp. Glossary of Commercial & Business Legal Terms in English-Chinese-Japanese. By Amy Chang. 1996, 1999, Musheng Inernational Publishing, Oceanside, CA. A New English-Chinese Law Dictionary. By W.S. Hung, 1979, French & Euro- pean Publishers, New York., 162 pp.

An English-Chinese Glossary of American Criminal Law & Criminal Procedure Law. By Kiang Yi-Seng, translator, with contributions by Jerome A. Cohen, 1989, Cheng & Tsui Company, Boston, MA.

Dictionary of Legal & Commercial Terms. Wörterbuch der Rechtssprache und Wirtschaftssprache. By Liu Shing-I. 1984, French & European Publishers, New York, 410 pp.

Dictionary of Diplomatic, International Law, and International Relations Terms.By Joseph D. Lowe. 1994, Joseph D. Lowe Publisher, Berkeley, CA. Han Ying fa lu tz’u-tien. A Chinese-English Dictionary of Law. 1st Ed. By Xue Bo (editor-in-chief), and Xu Zhaohong, Niu Fengguo, and Shen Hong. Wai wen ch’u ban she. (Foreign Language Publishing House), Beijing, 1995, 981 pp.

Ying Han fa lu tz’u hui ta ch’uan. English-Chinese Law Glossary. By Yang Kuan- ch’iung (editor-in-chief), Ch’en Shu, and Yang Shih-wen. 1995, Shan- hsi ching chi ch’u pan she (Shanhsi Economic Publishing House), T’ai- yuan, 934 pp. Ying Han, Han Ying Hsiang-kang fa lu tz’u hui. English-Chinese Chinese-En- glish Law Glossary for Hong Kong. First edition. By YaoTung-hua, Ou-yang Po-Ch’uan (co-editors). 1992, Shang wu yin shu kuan (Shangwu Print- ing Company), Hong Kong, 296 pp. Hsin Han Ying fa hsueh tz’u tien. A New Chinese-English Legal Dictionary. By Yu Hsu-t’ung and Wen Chia (editors-in-chief), Pan Wen-chan, and Ch’eng Wei-hsing. 1998, Fa lu ch’u ban she (Law Publishing House), Beijing, 1299 pp.

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Chinese-English Dictionary of Commonly Used Legal Terms. By Yu Shutong and Wen Jia. 1998, Law Publishing House, Beijing, 643 pp. Czech Cesko-Anglický Odborný Slovník z Oblasti Ekonomické, Financni a Právni. 1994, Linde Praha, Prague, 309 pp. Danish Juridisk Ordbog, Dansk Engelsk. By Helle Pals Frandsen. 1996, G.E.C. Gad, Copenhagen, Denmark, 207 pp. Dravidian Glossary of Law Terms. Printed by the Superintendant, Government Press, 1930, Madras, 125 pp. Dutch South African Legal Dictionary, containing most of the English, Latin, and Dutch terms, phrases and maxims used in Roman-Dutch law and South African legal practice, together with definitions occurring in the statutes of the South African colonies. By W. H. Somerset Bell. 1910, African Book Company, Grahamstown, Cape Colony, 608 pp.

Dictionnaire de termes juridiques en quatre langues. Diccionario en cuatro idiomas. Viertalig Juridisch Woordenboek. Legal Dictionary in Four Languages English, French, Dutch, Spanish. By Edgard LeDocte. 1987, 1995, Maklu Uitgevers, Antwerpen, also Civitas, Madrid, 860 pp. Legal Language: U.S.-Dutch Concepts on Business and Tax: A Glossary. By M.J. Sinke. 1990, Kluwer Law and Taxation Publishers, Deventer, The Nether- lands, 212 pp. Estonian Mitmekeelne õigussõnaraamat: eesti, inglise, saksa, soome, vene. 1998, Juura, Oigusteabe AS, Tallinn, 840 pp. Inglise Eesti juriidiliene sõnastik. English-Estonian Law Glossary. By John P. Grant and Liina Soobik. 1993, TU Oigusteaduskond, Tartu, 136 pp. Filipino English-Filipino Legal Dictionary. By Cesar C. Peralejo. 1995, Sentro ng Wikang Filipino, University of the Philippines System, Dillman, Quezon City, 181 pp. Finnish Lakikielen perussanakirja: suomi-englanti-suomi. By Jari Eriksson. 1995, Lakimiesliiton Kustannus, Helsinki, 412 pp.

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Juridiikan ja hallinnon suomalais-englantilainen sanasto/toim. By Matti Joutsen. 1980, 1981, Oikeuspoliittinen tutkimuslaitos, Helsinki, 81 pp.

Lakikielen sanakirja: suomi-englanti. By Matti Joutsen. 1985, Porvoo, Söderström, 557 pp. French Economic and Legal Dictionary: French-English/English-French. 3d ed. International Law Institute (by arrangement with L.G.D.J. Montchestien), Paris, 661 pp. Key Words in International Trade: English, German, French, Spanish, Italian. 1996, ICC Publishing (ICC no. 417/4), New York, 410 pp. Terms in Four Languages from Commercial Trade & Traffic: English, German, French, Spanish. Lloyd’s of London Press.

Trilingual Glossary. English-French-Spanish. October 1997, World Trade organization, Geneva, Switzerland. West’s Law & Commercial Dictionary in Five Languages: English, German, Spanish, French & Italian. West Publishing Co. French-English Glossary of French Legal Terms in European Treaties; Selected Legal Terms in French Texts of European Community Treaties, Conventions, Agreements and Related Documents… . By R.J.B. Anderson, 1972, London, Sweet & Maxwell, 64 pp. A Dictionary of Norman or Old French Language, with the Laws of William the Conqueror. By J.H. Baker, 1779, 1992, Inter-Doc, London (?). Multi-Lingual Dictionary of Commercial International Trade and Shipping Terms: English, French, Spanish, German. By Alan E. Branch, Michael Hedderly, Jose Foppiano, and Chris Thorby. Witherby & Co., London, 255 pp. The Council of Europe French-English Legal Dictionary. By F.H.S. Bridge. 1994, Council of Europe Press, Strasbourg, France, 312 pp.

Lexique anglais-français: principalement jurdique. French-English Legal Lexi- cography. By Bureau de la Terminologie. 1993, Service de l’édition et de la documentation, Conseil de l’Europe, Strasbourg, France, 463 pp.

Diccionario del Derecho, Español-Inglés-Francés. Spanish-English-French Legal Dic- tionary. By Rico Cano. 1994, Editorial Tecnos, Madrid. The Students’ Law Lexicon: A Dictionary of Legal Words and Phrases. English- French-Latin. By William Cox Cochran. 1919, The W.H. Anderson Com- pany, Cincinnati, 348 pp.

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Dahl’s Law Dictionary: French-English/English-French. By Henry Saint Dahl. 1995, Wm. S. Hein & Co., Buffalo, New York, and Editions Dalloz, Paris, 851 pp. French-English and English-French Dictionary of Legal Words and Phrases, In- cluding Legal and Commercial Terms Most Commonly in Use. 2d ed. By Alexander Williamson Dalrymple. Stevens, London, 1951; republished 1988, F.B. Rothman, Littleton, Colorado, 135 pp. Dictionnaire de termes juridiques en quatre langues. Diccionario en cuatro idiomas. Viertalig Juridisch Woordenboek. Legal Dictionary in Four Languages. English, French, Dutch, Spanish. By Edgard LeDocte. 1987, 1995, Maklu Uitgevers, Antwerpen, also Civitas, Madrid, 860 pp.

Multilingual Law Dictionary: English, French, Spanish, German. By L.D. Egbert and F. Morales Macedo. 1979, Sijthoof & Noordhoff, 573 pp. The European Communities: a Glossary of Legal Terms Appearing in the French Texts of the Treaties Establishing the European Atomic Energy Community, the European Coal and Steel Community, and the European Economic Community, and Related Documents. Compiled by the Foreign Office of Great Britain. 1965, H.M. Stationery Office, London, 61 pp. Dictionary of Commercial, Financial and Legal Terms. English-French-German. 3d ed., 3 vols. By Dr, Robert Herbst. 1968, Translegal, Ltd., Zug, Switzer- land, 1100 pp. per volume. Key Words in International Trade: English, German, Spanish, French and Ital- ian. 3rd edition. By The International Chamber of Commerce. 1994, Kluwer Law and Taxation Publishers, Deventer, The Netherlands, 416 pp. Vocabulaires Français-Anglais et Anglais-Français de Termes et Locutions Juridiques, Administratifs, Commerciaux, Financiers et Sujets Connexes. French-English and English-French Vocabulary of Legal, Administrative, Commercial, Finan- cial Terms and Locutions and Those of Related Subjects. By Jules Jéraute. 1953, Librairie Générale de Droit et de Jurisprudence, Paris, 414 pp.

Dictionary of Industrial, Property, Legal and Related Terms: English, Spanish, French, and German. By Francis J. Kase. 1980, Kluwer Law International, The Hague, Netherlands, 232 pp.

A Polyglotic Law Dictionary in English, French, Armenian, and Turkish. By Mesrob G. Kouyoumdjian. 1979, Vosguedar Press, Cairo, 386 pp. Law Terminology English-Spanish-French. Two volumes. By Language Service,

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Terminology and Technical Documentation Service. April 1990, United Nations, Geneva, Switzerland.

Dictionnaire juridique anglais-français at français-anglais. English-French/French- English Legal Dictionary. By Fernand-Laurent, Camille Jean. 1927, Rousseau & Co., Paris. 227 pp.

International Law Dictionary: English-French-German. By E. Lindbergh. 1993, Kluwer Law & Taxation Publishers, Deventer, The Netherlands, 439 pp. Modern Dictionary of International Legal Terms: English, French, German. By E. Lindbergh. 1992, Little Brown & Co., Boston, 439 pp. Diccionario juridico polilingue: Español, Aleman, Francés, Inglés, Italiano, Portugues. Multilingual Legal Dictionary: Spanish, German, French, English, Italian, and Portuguese. By Schiaffino Machado. 1996, Ediciones La Rocca, Buenos Aires, 656 pp. Lexi-loi Lexique juridique français-anglais. By Elsa Matzner. 1977, Presses universitaires de Perpignan, Perpignan, 153 pp. Vocabulaire anglais-français, français-anglais de terminologie économique et juridique. By Peter M.A. Nichols. 1971, Librairie générale de droit et de jurisprudence, Paris, 104 pp. The law-student French dictionary alphabetically digested; very useful for all young students in the common laws of England. 2d ed. 1718, Printed by Elizabeth Nutt and R. Gosling, (assigns of E. Sayer) for D. Brown, J. Walthoe, 324 pp. A French-English/English-French Dictionary of Legal and Commercial Terms. By Graham Oliver. 1925, reprinted 1988, F.B. Rothman, Littleton, Colo- rado. 170 pp. Manual of the Terminology of the Law of Armed Conflicts and of International Humanitarian Organizations: English-French-Spanish-Russian. By I. Paenson. 1989, Martinus Nijhoff Publishers, Dordrecht, The Netherlands, 864 pp. (co-publication with Editions Bruylant).

The students’ law dictionary of words and phrases in law Latin, law French, and Anglo-Saxon with statutory and common law definitions, together with definitions of terms and expressions used in the Code of civil procedure. By Seymour S. Peloubet. 1879, 1907, Peloubet & Hill, New York, 262 pp. Dictionnaire juridique: français-anglais: administration, assurances, bourse, commerce, douanes, droit, économie, exportation, finances et fiscalité. French-En-

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glish Legal Dictionary: administration, insurance, stock market, commerce, customs, law, economic, export, finance, and fiscal terminology. By Thomas A. Quemner and Jean Baleyte. 1977, Éditions de Navarre, Paris, 415 pp. Taylor’s Law Glossary: English, Greek, Latin, Saxon, French, Norman, Italian. 4th ed. By Thomas Taylor. 1819, various subsequent editions, reprinted 1995, Lawbook Exchange, New York, 580 pp. Legal Dictionary [computer file]. By TranSoft International, 1990, Provo, Utah, one 5¼ inch computer disk and one reference card. Checks spell- ing of over 40,000 legal terms in various areas of the law. Also available in French, German, Italian, Portuguese, and Spanish. German Wörterbuch der Rechtssprache: Deutsch-Englisch und English-Deutsch. Legal Dictionary: German-English and English-German. Two volumes. By Klaus Hinrich Basedow. 1947-1948, W. Heldt, Hamburg, Germany.

Fachwörterbuch der anglo-amerikanischen Rechtssprache einschliesslich wirthschaftlicher und politischer Begriffe. Dictionary of Anglo-American Legal Terminology including Commercial and Political Terms. 4th revised edition. By Dora von Beseler. 1991, Verlag Walter De Gruyter, Berlin, Germany, 1932 pp. Pons-Fachwörterbuch Recht: englisch-deutsch, deutsch-englisch. Pon’s Legal Dic- tionary: English-German and German-English. 2nd revised edition. By Peter H. Collin. 2000, Klett Verlag, Stuttgart, Germany, 471 pp. Wörterbuch für Recht, Wirtschaft und Politik. English-German and German- English Dictionary of Law, Commerce, and Politics. Two volumes: Volume 1, 1994; Volume 2, 2000. By Clara-Erika Dietl and Egon Lorenz. C.H. Beck, Munich, Germany. Gabler-Wirtschaftswörterbuch Englisch: deutsch-englisch; englisch-deutsch: mit über 20,000 Fachbegriffen aus Wirtschaftspraxis, Recht und Steuern. Gabler’s German-English, English-German Dictionary, with over 20,000 Commercial, Legal, and Tax Terms. 3rd revised edition. By Clara-Erika Dietl. 1998, CD- ROM, Gabler, Wiesbaden, Germany. Grosse Eichborn: Wirtschaft, Recht, Verwaltung, Verkehr, Kommunikation: Deutsch- Englisch, Englisch-Deutsch. Eichborn’s German-English English-German Dic- tionary of Commercial, Legal, Administrative, Transportation, and Communi- cations Terminology. 2nd revised edition. Two volumes: Volume 1, 1998 1442 pp.; Volume 2: 1999, 1540 pp. By Reinhart von Eichborn. Siebenpunkt Verlag, Burscheid, Germany.

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Wörterbuch der englischen Rechtsprache für Gerichte, Behörden und Wirtschaft. Deutsch- Englisch, Englisch-Deutsch. German-English English-German Legal Dictionary of Court, Government, and Commercial Terminology. By Gerhard Erdsiek and Carl Closs. 1947, Vandenhoeck & Ruprecht, Göttingen, Germany, 304 pp. Wörterbuch für Recht, Wirtschaft und Politik: mit erläuternden und rechtsvergleichenden Kommentaren. Englisch-Deutsch. English-German Dic- tionary of legal, commercial, and political terms with comparative explanatory comments. Two volumes: Volume 1: 1964, 300 pp.; Volume 2: 1968, 374 pp. By Gerhard Erdsiek and Clara-Erika Dietl. Schloss Bleckede bei Hamburg, Meissner, Germany. Grundwortschatz der Rechtssprache: deutsch-englisch, englisch-deutsch. Basic vocabulary of legal terminology: German-English, English-German. 3rd revised edition.By Peter Flory and Bernd Froschauer. 1992, A. Metzler Verlag in H. Luchterland Verlag, Neuwied, Germany, 337 pp.

Juristisches Wörterbuch, englisch-deutsch. English-German legal dictionary. 2nd edition. By Eberhard Alexander Geissler and Ilse Wolff. 1989, Verlag Die Wirtschaft, Berlin, Germany, 199 pp.

Wörterbuch Arbeit, Recht, Wirtschaft: Englisch-Deutsch, Deutsch-Englisch. En- glish-German German-English Dictionary of Labor, Legal, and Commercial Terms. By Christiane Horstenkamp. 2000, Bund-Verlag, Frankfurt am Main, Germany, 265 pp. Key Words in International Trade: English, German, Spanish, French and Ital- ian. 3rd edition. By The International Chamber of Commerce. 1994, Kluwer Law and Taxation Publishers, Deventer, Holland, 416 pp. Glossary of Legal Terms, English-German. International Military Tribunal. 1946 (?), Washington, D.C. Dictionary of Industrial, Property, Legal and Related Terms: English, Spanish, French, and German. By Francis J. Kase. 1980, Kluwer Law International, The Hague, Netherlands, 232 pp. Rechtswörterbuch: Englisch-Deutsch, Deutsch-Englisch English-German, German- English Legal Dictionary. By Hanns P. Kniepkamp. 1954, Colloquium-Verlag, Berlin-Dahlem, Germany, 216 pp. Rechtsenglisch: Deutsch-englisches und englisch-deutsches Rechtswörterbuch für jedermann. German-English and English-German Legal Dictionary for Every- one. 4th revised edition. By Gerhard Köbler with Gregor Schusterschitz. 2000, Verlag Franz Vahlen, Munich, 402 pp.

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International Law Dictionary: English-French-German. By E. Lindbergh. 1993, Kluwer Law & Taxation Publishers, Deventer, The Netherlands, 439 pp.

English-German German-English Dictionary of Legal and Commercial Terms. Wörterbuch der Rechts- und Wirtschaftssprache, English-German englisch-deutsch. 5th revised edition. Two volumes: Volume 1: 2000, 898 pp.; Volume 2: 2002 (expected). By Alfred Romain, Hans A. Bader, and B. Sh. Byrd. C. H. Beck, Munich, Germany. Lexikon der englischen Wirtschafts- und Rechtssprache. English-German Ger- man English Lexikon of Commercial and Legal Terms. Two volumes: Volume 1, Englisch-Deutsch, 1994, 380 pp.; Volume 2, Deutsch-Englisch, 1994, 420 pp. By Hans–Joerg Salizites. 1994, R. Oldenbourg, Munich, Germany.

Legal Dictionary [computer file]. By TranSoft International, 1990, Provo, Utah, one 5¼ inch computer disk and one reference card. Checks spell- ing of over 40,000 legal terms in various areas of the law. Also available in French, German, Italian, Portuguese, and Spanish. Juristiches Taschenwörterbuch in deutscher und englischer Sprache: Unter besonderer Berücksichtigung des internationalen diplomatischen Verkehrs. Pocket Dictio- nary in German and English of Legal Terms with Special Reference to Diplo- matic and International Terminology. Two volumes: Volume 1, German- English, 168 pp.; Volume 2, English-German, 165 pp.. By Hildegard Waschke. 1948, G. Siemens, Berlin, Germany. Greek The Court Interpreter’s (US) English-Greek Glossary. Gl¯ossario Dikastik¯on Dierm¯ene¯on Anglika (¯EPA)-Hell¯enika. By Michael O. Kambas. 1998, GTS Press, Laguna Beach, CA, 33 pp. Lexikon Anklo-Hell¯enikon Nomik¯on Her¯on. English-Greek Dictionary of Legal Terms. By George A. Perris. 1970, Kivotos, Athens, Greece, 123 pp.

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Hebrew Milon le-Munahim Mishpatiyim: ‘Ivri-Angli. Legal Dictionary: Hebrew-English. By Eliahu Moses. 1986, 1988, 1990, Israel, 217 pp. Milon le-Munahim Mishpatiyim, Angli-‘Ivri. Legal Dictionary: English-Hebrew. By Eliahu Moses. 1990, Israel, 325 pp.

Milon Mishpati: ‘Ivri-Angli, Angli-‘Ivri. By Elisheva‘ Shaked. 1992, Stimatski, Bene Berak, 236 pp. Milon Munhe Mishpat: Angli-‘Ivri. Legal Dictionary: English-Hebrew. By Meir Shely. 1982, Devir, Tel Aviv and Mikroshur, Jerusalem, 107 pp. Milu’im la-Milon le-munahim mishpatiyim, ‘Ivri-Angli. By Eliahu Moses. 1988, E. Mozes, Israel. 106 pp. Hindi Law Dictionary: English-Hindi. By Kamlesh, Chopra. 1970, Eastern Book Co., Lucknow, India, 407 pp. Hindustani An English-Hindustani Law and Commercial Dictionary of Words and Phrases Used in Civil, Criminal, Revenue, and Mercantile Affairs, Designed Espe- cially to Assist Translators of Law Papers.By S.W. Fallon. 1858, Thacker, Spink, Calcutta, 202 pp. Hungarian Magyar-Angol Jogi Szótár. By Imre Móra. 1997, ADECOM Kommunikacios Szolgaltato Rt., Budapest, 379 pp. Magyar-Angol Kereskedelmi és Jogi Szakszótár, a Kereskedelmi és Jogi Gyalorlatban Használatos Szakkifejezésekre Figyelemmel. By Vilmos Révész. (ca.) 1929. Lingua, Budapest. Angol-Magyar és Magyar-Angol Jogi, Kereskedelmi és Pénzügyi Szakszótár, a Leggyakrabban el´Óforduló Angol-Nyelv´ú Szerz´Ódési Levélmintákkal. By Karoly Szladits. 1946, Egyetemi Nyomda, Budapest, 398 pp. Irish Téarmaí Dlí: Béarla-Gaelige, Gaelige-Béarla. Terms: English-Irish, Irish-English. 1959 [?]. Oifig an tSoláthair, Baile Átha Cliath, 127 pp. Italian Dizionario Giuridico. Law Dictionary. Two volumes. By Francesco de Franchis. 1984, Vol. I, English-Italian, 1545 pp.; 1996, Vol. II, Italian-English, 1467 pp., Milan.

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Dizionario Giuridico Inglese-Italiano. By Giovanni Scalfati Fusco. 1936, Edizioni “Latoga”, Naples, Italy, 162 pp.

Key Words in International Trade: English, German, Spanish, French and Ital- ian. 3rd edition. By The International Chamber of Commerce. 1994, Kluwer Law and Taxation Publishers, Deventer, The Netherlands, 416 pp.

Dizionario Giuridico Italiano-Inglese e Inglese-Italiano e Sintesi di Legislazione Inglese Comparata. Vol. 1. By Guido Annibale Parisi. 1951-1955 [1950]. Giuffrè, Milan.

Wa-Ei Horitsu Kihon Yogo Jiten. Dictionary of Contractual and Legal Terms, Japanese- English Edition. By Yoshiaki Kikuchi. 1998, Yohan Shuppan, Tokyo, 267 pp. Dictionary of Legal Terms: English-Japanese, Japanese-English.By Bunji K. Omura. 1944, National Process Co., New York, 10 pp. Dictionary of Anglo-American Law: English-Japanese. By Hideo Tanaka. 1991, University of Tokyo Press, Tokyo, 1046 pp.

Wa-Ei Shuyo Horitsu Yogo Kaisetsushu. Bilingual Japanese-English Basic Legal Terms with Comment. By Katsutaka Yamashita. 1992, Keibunsha, Kyoto, 179 pp. Kannada K¯an¯unu ratnak¯o´sa. By Es. Si. Hir¯ematha. 1981, Dh¯arav¯ada, J¯agrta Bh¯arata, 252 pp.

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Korean English-Korean Law Dictionary. Bop-ryul-yeong-han-sa-jeon. Translated from Japanese by Koh Chang Hyun. 1997, Kwang Jang Seo Jeok Publishing Co., 521 pp. (Japanese original: Toshiaki Hasegawa Lawdas Law Dictio- nary, 1991, Tokyo Nunoi Publishing, Tokyo).

Revised English Law Standard Terms Dictionary. Gae-jung-pan Yeong-mun-bop- ryung-pyo-jun-yong-eo-jip. By Korean Legislation Research Institute, 1999, 467 pp.

Pomnyul Yong-Han Sajon. Anglo-American Law Dictionary. By Yi Sang-do. 1998, Ch‘ongnim Ch‘ulp‘an, Soul T‘ukpyolsi, 686 pp. Latin A Law Dictionary of Words, Terms, Abbreviations and Phrases which are Pecu- liar to the Law, …Containing Latin Phrases and Maxims… By James Arthur Ballentine. 1916, Bancroft-Whitney Company, San Francisco, 632 pp.

South African Legal Dictionary, containing most of the English, Latin, and Dutch terms, phrases and maxims used in Roman-Dutch law and South African legal practice, together with definitions occurring in the statutes of the South African colonies. By W. H. Somerset Bell. 1910, African Book Company, Grahamstown, Cape Colony, 608 pp. The Students’ Law Lexicon: A Dictionary of Legal Words and Phrases. English- French-Latin. By William Cox Cochran. 1919, The W.H. Anderson Com- pany, Cincinnati, 348 pp. Trilingual Legal Dictionary: English-Afrikaans, Latin-Afrikaans-English, Afri- kaans-English. 3rd edition. By V. G. Hienstra and H. L. Gonin. 1992, Juta, Cape Town. A Concise Law Dictionary for Students and Practitioners, with Summaries of the Leading Cases and a Translation of Roman Law and Terms and Latin Maxims.By Percy George Osborn. 1927, Sweet & Maxwell, London, (The Carswell Company, Toronto), 306 pp.

Essential Latin for Lawyers. By Russ VerSteeg. 1990, Carolina Academic Press, Durham, N.C., 166 pp. Latvian Dictionary of Legal Synonyms: Latvian-English-Latvian. Translators: Laine Skopina, Inguna Varslav¯ane, Lauris Liepa; Editors: Stacie O. Condrell, William K. Condrell. 1993, American Bar Association, Chicago, IL, 175 pp.

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Lithuanian Mokomasis anglu-lietuviu kalbu teises terminu zodynas. By Vita Bitinaite. 1997, Open Society Fund-Lietuva and Publishing House Eugrimas, Vilnius. English-Lithuanian Law Dictionary. Anglu-Lietuviu kalbu teises zodnyas. 1998, Center for Law and Democracy, American Bar Association Central and East European Law Initiative and Alma Littera Publishing House. Mongolian Mongolian-English-Russian Dictionary of Legal Terms and Concepts. By Will- iam E. Butler. 1983, Martinus Nijhoff Publishers, Dordrecht, The Neth- erlands, 746 pp. Multilingual Key Words in International Trade: English, German, French, Spanish, Italian. 1996, ICC Publishing (ICC no. 417/4), New York, 410 pp. Terms in Four Languages from Commercial Trade & Traffic: English, German, French, Spanish. Lloyd’s of London Press. West’s Law & Commercial Dictionary in Five Languages: English, German, Spanish, French & Italian. West Publishing Co.

International Thesaurus of Refugee Terminology. By Jean Aitchison.1989, Martinus Nijhoff Ppublisher, Dordrecht, The Netherlands, 504 pp. (co-publication with the International Refugee Documentation Network).

Dictionary of Definitions of EU Related Products. Dictionary and CD-ROM format. By Sandro Amaducci. 2000, Kluwer Law International, The Hague, 480 pp.

Mongolian-English-Russian Dictionary of Legal Terms and Concepts. By Will- iam E. Butler. 1983, Martinus Nijhoff Publishers, Dordrecht, The Neth- erlands, 746 pp.

Multi-Lingual Dictionary of Commercial International Trade and Shipping Terms: English, French, Spanish, German. By Alan E. Branch, Michael Hedderly, Jose Foppiano, Chris Thorby.

Witherby & Co., London, 255 pp. Diccionario del Derecho, Espanol-Ingles-Frances. Spanish-English-French Legal Dictionary. By Rico Cano. 1994, Editorial Tecnos, Madrid.

Dictionnaire de termes juridiques en quatre langues. Diccionario en cuatro idiomas. Viertalig Juridisch Woordenboek. Legal Dictionary in Four Languages English,

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French, Dutch, Spanish. By Edgard LeDocte. 1987, 1995, Maklu Uitgevers, Antwerpen, also Civitas, Madrid, 860 pp.

Multilingual Law Dictionary: English, French, Spanish, German. By L.D. Egbert and F. Morales Macedo. 1979, Sijthoof & Noordhoff, 573 pp. Dictionary of Commercial, Financial and Legal Terms. English-French-German. 3d ed., 3 vols. By Dr, Robert Herbst. 1968, Translegal, Ltd., Zug, Switzer- land, 1100 pp. per volume. Key Words in International Trade: English, German, Spanish, French and Ital- ian. 3rd edition. By The International Chamber of Commerce. 1994, Kluwer Law and Taxation Publishers, Deventer, The Netherlands, 416 pp. Dictionary of Industrial, Property, Legal and Related Terms: English, Spanish, French, and German. By Francis J. Kase. 1980, Kluwer Law International, The Hague, Netherlands, 232 pp. A Polyglotic Law Dictionary in English, French, Armenian, and Turkish. By Mesrob G. Kouyoumdjian. 1979, Vosguedar Press, Cairo, 386 pp. Law Terminology English-Spanish-French. Two volumes. By Language Service, Terminology and Technical Documentation Service. April 1990, United Nations, Geneva, Switzerland. International Law Dictionary: English-French-German. By E. Lindbergh. 1993, Kluwer Law & Taxation Publishers, Deventer, The Netherlands, 439 pp.

Modern Dictionary of International Legal Terms: English, French, German. By E. Lindbergh. 1992, Little Brown & Co., Boston, 439 pp. Diccionario juridico polilingue: Espanol, Aleman, Frances, Ingles, Italiano, Portugues. Multilingual Legal Dictionary: Spanish, German, French, English, Italian, and Portuguese. By Schiaffino Machado. 1996, Ediciones La Rocca, Buenos Aires, 656 pp.

Manual of the Terminology of the Law of Armed Conflicts and of International Humanitarian Organizations: English-French-Spanish-Russian. By I. Paenson. 1989, Martinus Nijhoff Publishers, Dordrecht, The Netherlands, 864 pp. (co-publication with Editions Bruylant). The students’ law dictionary of words and phrases in law Latin, law French, and Anglo-Saxon with statutory and common law definitions, together with definitions of terms and expressions used in the Code of Civil Procedure. By Seymour S. Peloubet. 1879, 1907, Peloubet & Hill, New York, 262 pp.

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Taylor’s Law Glossary: English, Greek, Latin, Saxon, French, Norman, Italian. 4th ed. By Thomas Taylor. 1819, various subsequent editions, reprinted 1995, Lawbook Exchange, New York, 580 pp. Legal Dictionary [computer file]. By TranSoft International, 1990, Provo, Utah, one 5¼ inch computer disk and one reference card. Checks spell- ing of over 40,000 legal terms in various areas of the law. Also available in French, German, Italian, Portuguese, and Spanish. Trilingual Glossary. English-French-Spanish. By The World Trade Organiza- tion. 1997, Geneva, Switzerland. Human Rights Terminology in International Law: A Thesaurus.By Leo F. Zwaak. 1987, Martinus Nijhoff Publishers, Dordrecht, The Netherlands, 234 pp. (co-publication of the Council of Europe). Norwegian Norsk-Engelsk Okonomisk Ordbok. Norwegian-English Business Dictionary. By Jane Aagenaes. 1993, Kunnskapsforlaget, H. Aschenhoug & Co., (W. Nygaard) A/S and A/S Gyldendal Norsk Forlag, Oslo. Stor Norsk-Engelsk Juridisk Ordbok. (Norwegian-English Law Dictionary). By Ronald L. Craig. 1999, Universitetsforlaget AS (University Publishers), Oslo. Norsk-Engelsk Juridisk Ordbok, Sivil-og Strafferett. Norwegian-English Law Dic- tionary, Civil and Criminal Law. 3rd edition. By Age Lind. 2000, J. W. Cappelens Forlag AS, Cappelans Akademisk Forlag, Oslo. Persian Farhang-i lugh at-i huq¯uq¯i: F¯ars¯i-Ingil¯is¯i: mushtamil bar v¯azhah´h¯ayi Isl¯am¯i va istil¯ah¯at-i L¯at¯in. By Asad All¯ah Kar¯im¯i. 1994, Nashr-i S¯imurgh, Tehran, 263 pp. Polish Polish-English Dictionary of Legal Terms. Slownik Prawniczy Polsko-Angielski. By the Polish Academy of Sciences. 1968, Institute of State and Law, Wroclaw, Warszawa, 211 pp. Slownik Terminologii Prawniczej. By Ewa Ozga. Two Volumes: Volume I: Pol- ish-English, 312 pp.; Volume II: English-Polish, 659 pp. 1998, Branta- Oficyna Wydawnicza. Portuguese Dicionário Jurídico Noronha. Noronha’s Legal Dictionary. 3rd edition. By Durval

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de Noronha Goyos, Jr. 1998, 2000, Editora Observador Legal., Sao Paolo, 575 pp.

Diccionario juridico polilingue: Espanol, Aleman, Frances, Ingles, Italiano, Portugues. Multilingual Legal Dictionary: Spanish, German, French, English, Italian, and Portuguese. By Schiaffino Machado. 1996, Ediciones La Rocca, Buenos Aires, 656 pp. Dicionario Juridico portugues-ingles, ingles-portugues. Portuguese-English, English Portuguese Law Dictionary. 6th edition. By Maria Chaves de Mello. 1994, Barrister’s Ed., Rio de Janeiro. Also 6th edition, Editora Pergaminho, Lisboa, 514 pp. Legal Dictionary [computer file]. By TranSoft International, 1990, Provo, Utah, one 5¼ inch computer disk and one reference card. Checks spell- ing of over 40,000 legal terms in various areas of the law. Also available in French, German, Italian, Portuguese, and Spanish. Romanian Dictionar Juridic Român-Englez Englez-Român. Romanian-English English–Ro- manian Legal Dictionary. Revised 2nd edition. By Vladimir Hanga and Calciu Rodica. 1995, 1998, Lumina Lex, Bucharest, 148 pp. Russian Tolkovyi Iuridicheskii Slovar´ Biznesmena: Russko-Angliiskii, Anglo-Russkii. Le- gal Dictionary for Businessmen: Russian-English, English-Russian. By M.A. Baskakova. 1995, Finansy i Statistika, Moscow, 633 pp. Russian–English Law Dictionary. Russo-Angliskii Yuridicheski slovar. By I.I. Borisenko and V.V. Sayenko. 2000, Russo Publishers, Moscow, 606 pp.

Mongolian-English-Russian Dictionary of Legal Terms and Concepts. By Will- iam E. Butler. 1983, Martinus Nijhoff Publishers, Dordrecht, The Neth- erlands, 746 pp.

Concise English-Russian and Russian-English Dictionary of the Underworld. By Yu. P. Dubyagin and E. A. Teplitsky. 1993, Publishing House Terra, Moscow. Manual of the Terminology of the Law of Armed Conflicts and of International Humanitarian Organizations: English-French-Spanish-Russian. By I. Paenson. 1989, Martinus Nijhoff Publishers, Dordrecht, The Netherlands, 864 pp. (co-publication with Editions Bruylant). Scandinavian Anglo-Scandinavian Law Dictionary of Legal Terms used in Professional and Commercial Practice. By Ralph James Bushman Anderson. Prepared un-

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der the auspices of the Royal Norwegian Ministry of Justice. 1977, Universitetsforlag, Oslo, 137 pp. Sinhalese N¯iti´sabda m¯al¯ava. Glossary of Legal Terms, English-Sinhalese. Three volumes. 1957, R¯ajya Bh¯asa Dep¯artam¯entuva, Kolamba. Slovak Právnický Slovník. Dictionary of Law, Slovak-English, English-Slovak. By Ivica Chorátová. 1997(?), I. Krancey, CCJ-Fremdsprachenzentrum, Bratislava, Slovakia, 789 pp. Software Dictionaries Legal Dictionary [computer file]. By TranSoft International, 1990, Provo, Utah, one 5¼ inch computer disk and one reference card. Checks spell- ing of over 40,000 legal terms in various areas of the law. Also available in French, German, Italian, Portuguese, and Spanish. Spanish Diccionario Terminológico de Derecho. Dictionary of Legal Terms. 1st edition. 1992, Editorial de la Ley, Madrid.

Wiley’s English-Spanish, Spanish-English Legal Dictionary. Diccionario Juridico Inglés-Español y Español-Inglés Wiley. Second edition. 1997, Wiley Law Publications, John Wiley & Sons, New York, 605 pp.

Diccionario de Términos Juridicos Inglés-Español, Spanish-English. Fourth edition. By Enrique Alcazar Varo and Brian Hughes. 1993, 1997, 1999, Edi- torial Ariel S.A., Barcelona, 708 pp.

Bilingual Dictionary of Legal Terms: English-Spanish/Spanish-English. Second Edition. By Francisco R. Bossini and Mary Gleeson, 1998, McGraw-Hill/ Interamericana España, S.A.U., Madrid.

Butterworths English-Spanish Legal Dictionary. 1st edition. Two volumes. By Guillermo Cabanellas and Eleanor Hoague. 1991, Butterworths Legal Publisher, Austin, Texas.

Diccionario Juridico – Law Dictionary. Two volumes. By Guillermo Cabanellas and Eleanor Hoague. June 1998, Editorial Heliasta, Buenos Aires. Diccionario del Derecho, Español-Inglés-Francés. Spanish-English-French Law Dictionary. By Jose Ramon Rico Cano. 1994, Editorial Tecnos, Madrid. Dahl’s Law Dictionary- Diccionario Juridico Dahl. Second edition. By Henry Saint Dahl. 1996, William S. Hein & Co., Buffalo.

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Dictionnaire de termes juridiques en quatre langues. Diccionario en cuatro idiomas. Viertalig Juridisch Woordenboek. Legal Dictionary in Four Languages. English, French, Dutch, Spanish. By Edgard LeDocte. 1987, 1995, Maklu Uitgevers, Antwerpen, also Civitas, Madrid, 860 pp. Key Words in International Trade: English, German, Spanish, French and Ital- ian. 3rd edition. By The International Chamber of Commerce. 1994, Kluwer Law and Taxation Publishers, Deventer, The Netherlands, 416 pp English-Spanish, Spanish-English Legal Dictionary. Diccionario Inglés-Español, Español-Inglés. By Stephen M. Kaplan, with Fernando Pombo of Gomez- Acebo & Pombo, editorial advisers. 1997, Wiley Law Publications, John Wiley & Sons, New York, 646 pp.

Dictionary of Industrial, Property, Legal and Related Terms: English, Spanish, French, and German. By Francis J. Kase. 1980, Kluwer Law International, The Hague, Netherlands, 232 pp.

Law Terminology English-Spanish-French. Two volumes. By Language Service, Terminology and Technical Documentation Service. April 1990, United Nations, Geneva, Switzerland.

Diccionario juridico polilingue: Español, Aleman, Francés, Inglés, Italiano, Portugues. Multilingual Legal Dictionary: Spanish, German, French, English, Italian, and Portuguese. By Schiaffino Machado. 1996, Ediciones La Rocca, Buenos Aires, 656 pp. Diccionario Bilingüe de Terminologia Juridica, Inglés-Castellano, Castellano-Inglés. Bilingual Dictionary of Legal Terms, English-Catalan Catalan-English. Third edition. Book and CD-ROM format. By Alejandra Maranghello and Patricia Mazzucco. 1998, Editorial Abeledo-Perrot, Buenos Aires, 718 pp. Diccionario de Términos Juridicos. Dictionary of Juridical Terms. 3d Edition. By Luis Miguel Diaz and Ben Lenhart. 1996, Editorial Themis, Del. Benito Juarez, Mexico, 399 pp. Diccionario General de Economica, Comercio y Derecho, Inglés-Español. Gen- eral English-Spanish Dictionary of Economics, Commerce and the Law. Two volumes. By Emilio Muniz Castro. 1990, Editorial Fontenebro, Madrid. Manual of the Terminology of the Law of Armed Conflicts and of International Humanitarian Organizations: English-French-Spanish-Russian. By I. Paenson. 1989, Martinus Nijhoff Publishers, Dordrecht, The Netherlands, 864 pp. (co-publication with Editions Bruylant).

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Diccionario de Términos Juridicos, Inglés-Español, Español-Inglés. Dictionary of English-Spanish Spanish-English Legal Terms. By Francisco Ramos and Mary Gleeson. 1997, Editorial Comares, Granada. Diccionario de Términos Legales Español-Inglés y Inglés-Español. Dictionary of Legal Terms, Spanish-English and English-Spanish. By Louis A. Robb, in collaboration with Tomas I. Nido, Rafael Ramirez de Arellano Jr., Thomas A. Pace, and Anthony Gervasi. 1982, 1995 Editorial Limusa, México. 228 pp. West’s Spanish-English English-Spanish Law Dictionary. 1st edition. By Gerardo Solis and Raul A. Gasteazoro. 1992, West Publishing Co., St. Paul, Min- nesota. Legal Dictionary [computer file]. By TranSoft International, 1990, Provo, Utah, one 5¼ inch computer disk and one reference card. Checks spell- ing of over 40,000 legal terms in various areas of the law. Also available in French, German, Italian, Portuguese, and Spanish.

Spanish-English Dictionary of Law and Business. By Thomas L. West III. 1999, Protea Publishing, Atlanta, GA, 319 pp. Swedish English Law Dictionary: Engelsk-Svensk-Engelsk. By Peter H. Collin. 1989, Esselte Ordbok, Stockholm, 340 pp. Juridikordbok: Svensk-Engelsk-Svensk Fackordbok. By Sven Martinger. 1987, 1998, Norstedts Juridik, Stockholm, 113 pp. Tamil Cattac col akar¯ati/tokuppu Manim¯ekalaip Piracura¯Aciriyar Ku_lu; patipp aciriyar L e_n a Tami_lv ana_n. Concise English-Tamil Dictionary of Law. 1989, Ce_n_nai: Manim¯ekalaip Piracuram. 223 pp. Thai Dictionary of Legal Terms and Expressions: English-Thai. 2d Ed. By Thong Withaiwat. Nitibannakarn Publisher. Bangkok, 1999, 355 pp. Law Dictionary: Thai-English. 2d Ed. By Thong Withaiwat. Nitibannakarn Publisher. Bangkok, 2000, 384 pp. Legal Dictionary English-Thai and Thai-English. 2d Ed. By The Royal Insti- tute. Text and Journal Publication Co., Ltd. Bangkok, 2000, 688 pp. Turkish A Polyglotic Law Dictionary in English, French, Armenian, and Turkish. By Mesrob G. Kouyoumdjian. 1979, Vosguedar Press, Cairo, 386 pp.

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Türkçe-Ingilizce Hukuk Sözlügü. Turkish-English Law Dictionary. By Mustafa Ovacik. 1964, 1969, Banka ve Ticaret Hukuku Arastirma Enstitüsü, Cebeci- Ankara, Turkey, 292 pp. Ingilizce- Türkçe Hukuk Sözlügü. English-Turkish Law Dictionary.By Mustafa Ovacik. 1964, Ankara, Turkey, 355 pp. Ukrainian Ukraïns´ko-anhliis´kyi slovnyk pravnychoï Terminolohiï. By Lesia V. Mysyk. 1999, IUrinkom Inter, Kiev, Ukraine, 523 pp. Urdu A Concise Law Dictionary Containing (1) English words with Urdu Meanings, Legal Phrases and Maxims, Explained in both English and Urdu and (2) Urdu words with English Meanings. By M. Durga Prasad. 1940, R.N. Lal, Allahabad, India, 600 pp. Vietnamese T‘u´ Diên Pháp Luât Anh-Viet: Luât, Thu´o´ng-mai, Quan Thu´ê, B?ao Hi?êm, Tài Chánh, Hành Chánh. Legal Dictionary English-Vietnamese: Law, Trade, Cus- toms, Insurance, Finance, and Administration. By Nguy-ên Th´ê K‘y. 1992, 1994, Khoa Hoc Xã Hôi, Hà Nôi, 475 pp. Welsh Geiriadur y Gyfraith: Saesneg-Cymraeg. The Legal Dictionary:English-Welsh. By Robyn Lewis. 1992, Gomer, Llandysul, 521 pp. Zulu A Guide for the Zulu Court Interpreter. By C. J. Ruudolph. 194?, Shuter & Shooter, Pietermaritzburg, 75 pp.

May 2002

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The Committee on Foreign and Comparative Law

Peter M. Hosinski, Chair Curt D. Buyum, Secretary Sheetal Asrani Martin D. Jacobson Michael Sherrin Barry Marco V. Masotti Joy C. Barson* Christopher P. McClancy Thomas F. Berner Guy A. Reiss Drew G.L. Chapman William F. Rosenblum, Jr. Catherine Dupuy-Burin des Roziers Brian Wha-Li Tang Gianluigi Esposito Naveen Thakur† Prof. E. Allan Farnsworth Janine Tramontana Louis Fontaliran Kimberly C. Turina Jingwei Lu Fu Max Valerio Yao Fu Rafael Vargas Juan Enrique Garcia Tsugumichi Daniel Watanabe Ralph J. Glass Ralph E. Winnie, Jr. Serhiy Hoshovskyy Daniel A. Wuersch Chuanhsi S. Hsu

* Member principally responsible for the compilation and drafting of this bibliography. † Student member

F A L L 2 0 0 2 ▼ V O L. 5 7, N O. 4 511 2002 Index Volume 57 of the Record of the Association of the Bar of the City of New York

The figure preceding the colon refers to the volume, the other to the page

AUTHORS INDEX

Breyer, Stephen G. After September 11: National and International Legal Tasks 57:10

Davis, Evan A. President’s September 14, 2001 Letter to Association Members 57:4

Annual Meeting of the Association: President’s Farewell Address 57:217

Feerick, John D. On the Path to Inclusion 57:469

Kaye, Judith S. The Orison Marden Lecture: Enduring Values and Changing Times 57:20

Milonas, E. Leo Annual Meeting of the Association: President’s Inaugural Address 57:221

SUBJECT INDEX Civil Rights It is Time to Enforce the Law: A Report on Fulfilling the Promise of the New York City Human Rights Law 57:231

T H E R E C O R D 512 I N D E X

Communication and Media Law The Press and the Public’s First Amendment Right of Access to Terrorism on Trial: A Position Paper 57:94

Foreign and Comparative Law The Vienna Convention on the Assignment of Receivables in International Trade 57:454

Legal Dictionaries in English and One or More Other Languages: A Selective Bibliography 57:489

Hong Kong Interim Report on the Rule of Law, Democracy and the Protection of Fundamental Rights in Hong Kong 57:397

Human Rights Law Under Siege: The Struggle to Prosecute Human Rights Abuses in Aceh, Indonesia 57:307

Interim Report on the Rule of Law, Democracy and the Protection of Fundamental Rights in Hong Kong 57:397

Human Rights Commission It is Time to Enforce the Law: A Report on Fulfilling the Promise of the New York City Human Rights Law 57:231

Immigration and Nationalization Letter to Immigration and Naturalization Service, re: INS No. 2171-01 Custody Procedures, 66 Fed. Reg. 48334 (September 20, 2001) 57:31

Indonesia Law Under Siege: The Struggle to Prosecute Human Rights Abuses in Aceh, Indonesia 57:307

Information Technology Report on Privacy 57:269

Inter-American Affairs Report on the Buenos Aires Conference on Pro Bono and Access to Justice 57:479

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International Security The Legality and Constitutionality of the President’s Authority to Initiate an Invasion of Iraq 57:378

International Trade The Vienna Convention on the Assignment of Receivables in International Trade 57:454

Iraq The Legality and Constitutionality of the President’s Authority to Initiate an Invasion of Iraq 57:378

Legal Dictionaries Legal Dictionaries in English and One or More Other Languages: A Selective Bibliography 57:489

Military Affairs and Justice Inter Arma Silent Leges: In Times of Armed Conflict Should the Laws Be Silent? A Report on the President’s Military Order of November 13, 2001, Regarding “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” 57:39

New York New York City and the United Nations: Toward a Renewed Relationship 57:431

Professional and Judicial Ethics Formal Opinion 2002-01: Client Confidentiality and the Intention to Commit a Crime 57:351

Formal Opinion 2002-02: Duty to Pay Interest on Client Funds Deposited in an Interest-Bearing Account 57:360

Formal Opinion 2002-03: The “No-Contact Rule” and Advising a Client in Connection with Communications Conceived or Initiated by the Client With a Represented Party 57:363

Professional Responsibility Statement Regarding the United States Department of Justice Final Rule Allowing “Eavesdropping” On Lawyer/Client Conversations 57:228

T H E R E C O R D 514 I N D E X

The Collateral Estoppel Effect of Sanctions 57:297

September 11 Inter Arma Silent Leges: In Times of Armed Conflict Should the Laws Be Silent? A Report on the President’s Military Order of November 13, 2001, Regarding “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” 57:39

September 11th Legal Initiative 57:170

The Press and the Public’s First Amendment Right of Access to Terrorism on Trial: A Position Paper 57:94

United Nations New York City and the United Nations: Toward a Renewed Relationship 57:431

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