Volume 37, Issue 1

The “Gateway” Problem in International Commercial Arbitration

Written by George A. Bermann

Participants in international commercial arbitration have long recognized the need to maintain arbitration as an effective and therefore attractive alternative to litigation, while still ensuring that its use is predicated on the consent of the parties and that the resulting awards command respect. A priori, at least, all participants—parties, counsel, arbitrators, arbitral institutions—have an interest in ensuring that arbitration delivers the various advantages associated with it, notably speed, economy, informality, technical expertise, and avoidance of national fora, while producing awards that withstand judicial challenge and otherwise enjoy legitimacy.

National courts play a potentially important policing role in this regard. Most jurisdictions have committed their courts to do all that is reasonably necessary to support the arbitral process. Among the ways courts do so is by ensuring that arbitral proceedings are initiated and pursued in a timely and effective manner. But those same courts are commonly asked by a party resisting arbitration to intervene at the very outset to declare that a prospective arbitration lacks an adequate basis in party consent. No legal system that permits the arbitration of at least some disputes (and most do) is immune to the possibility that its courts will become engaged in an inquiry of that sort at the very threshold of arbitration. Each must decide how, at this early stage, to promote arbitration as an effective alternative to litigation, while at the same time ensuring that any order issued by a court compelling arbitration is supported by a valid and enforceable agreement to arbitrate. The challenge consists of identifying those issues that courts—in the interest of striking the proper balance between these two objectives—properly address at what is increasingly known, in common U.S. parlance, as the “gateway” of arbitration. This “gateway” problem is the focus of the present Article.

For purposes of this Article, I consider an arbitral regime to be effective to the extent that it operates to promote the procedural advantages I posited earlier—speed, economy, informality, technical expertise, and avoidance of national fora. While legitimacy might be defined in many different ways, I consider an arbitral regime to be legitimate (or to enjoy legitimacy) to the extent that the parties who were compelled to arbitrate rather than litigate, and will be bound by the resulting arbitral award, consented to step outside the ordinary court system in favor of an arbitral tribunal as their dispute resolution forum.

Legal systems differ in their responses to the challenge of reconciling efficacy and legitimacy in arbitration, and even in the extent to which they acknowledge that the challenge exists and try to articulate a framework of analysis for addressing it. This Article proceeds on the premise that legal systems have a serious enough interest in properly reconciling the values of efficacy and legitimacy to warrant their developing an adequate framework of analysis, as well as articulating that framework in a clear, coherent, and workable fashion.

In the United States, Congress has largely ignored the challenge of reconciling efficacy and legitimacy in arbitration, as have the states even when establishing statutory regimes to govern arbitration conducted in their territory. The matter has accordingly fallen to the courts. In this Article, I reexamine the jurisprudence that American courts have developed, increasingly under the leadership of the U.S. Supreme Court, to address the fundamental tension between arbitration’s efficacy and legitimacy interests that exists at the very threshold of arbitration. The exercise has come to consist largely of demarcating “gateway” issues (i.e., issues that a court entertains at the threshold to ensure that the entire process has a foundation in party consent) from “non-gateway” issues (i.e., issues that arbitral tribunals, not courts, must be allowed to address initially, if arbitration is to be an effective mode of dispute resolution).

This Article proceeds as follows. Part II briefly sketches the settings in which courts may be asked to conduct the early policing with which this Article is concerned. Part III identifies the terminological confusion that has hampered clear thinking on the subject, and proposes a coherent vocabulary for overcoming it. Part IV then explores critically the conceptual devices that courts and commentators have traditionally employed in sorting through the issues. In so doing, it demonstrates that the two notions most widely relied upon for this purpose—Kompetenz-Kompetenz and separability—are unequal to the task, and explains why. A critical understanding of U.S. law in this regard is aided by comparing it to models—the French and German—that claim to have devised simple and workable formulae for reconciling efficacy and legitimacy interests at the outset of the arbitral process. That discussion will show how the often proclaimed universality of Kompetenz-Kompetenz and separability is in fact misleading.

Against this background, Part V traces how recent U.S. case law has progressively pursued a more nuanced balance between efficacy and legitimacy than the traditional conceptual tools tended to yield. The courts have achieved this result, not by erecting a single comprehensive framework of analysis, but rather through a series of pragmatic adjustments to the received wisdom associated with Kompetenz-Kompetenz and separability. I conclude that they have developed a suitably complex body of case law that ordinarily reaches sound results. But I am equally certain that, in doing so, they have failed adequately to rationalize the case law. The disparate strands of analysis—each of which is basically sound—have combined to produce a needlessly confusing case law to the detriment of clarity, coherence, and workability. I suggest that the case law can and should be recast, and that the central feature of that recasting must be a serious and frank confrontation of the underlying tradeoff between arbitration’s efficacy and legitimacy interests. This Article is thus both descriptive and normative in outlook.

International Law at Home: Enforcing Treaties in US Courts

Written by Oona A. Hathaway, Sabria McElroy & Sara Aronchick Solow

A deep puzzle lies at the heart of international law. It is “law” binding on the United States, and yet it is not always enforceable in the courts. One of the great challenges for scholars, judges, and practitioners alike has been to make some sense of this puzzle—some might call it a paradox—and to figure out when international law can be used in U.S. courts and when it cannot.

The Supremacy Clause in the U.S. Constitution would seem to solve this puzzle. It says, after all, that “Treaties made, or which shall be made, under the Authority of the United States, shall be supreme Law of the Land.” Yet early in the country’s history, the Supreme Court distinguished between treaties “equivalent to an act of the legislature”—and therefore enforceable in the courts—and those “the legislature should execute”—meaning they could not be enforced in the courts until implemented by Congress and the President. Thus began a cottage industry devoted to determining when international law was enforceable in the courts.

Just when scholars had more or less come to a settled understanding of the status of international law in the courts—or at least agreed to disagree—the Supreme Court reentered the fray. Beginning in the 1990s, foreign nationals convicted of capital offenses and sentenced to death had begun challenging their convictions on the grounds that the arresting authorities had violated the Vienna Convention on Consular Relations (Vienna Convention), which the United States had ratified, by failing to inform them that they had the right to contact their consulates. U.S. courts refused to provide the relief the foreign nationals sought, and two of the cases eventually made their way to the International Court of Justice (ICJ). That Court twice held that the United States had breached its obligations to its treaty partners by failing to notify the consulates of foreign nationals upon their arrest. In the second of these two cases, the Court held that the United States had violated the Vienna Convention by failing to inform fifty-one Mexican nationals of their rights under the Convention upon their arrest. The Court declared that the United States was obligated to provide the fifty-one individuals—including petitioner José Ernesto Medellín—“review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention.”

Medellín returned to the U.S. courts to enforce the holding, seeking the review and reconsideration called for by the ICJ. The Texas courts refused—in part on the grounds that the ICJ’s decision was not directly enforceable in domestic courts. The U.S. Supreme Court surprised many observers by agreeing. In Medellín v. Texas, the Court reasoned that the treaties granting jurisdiction to the ICJ were non-self-executing and thus not enforceable unless implemented into law by Congress. They were, in other words, among those treaties the legislature must execute. Congress, of course, had not passed implementing legislation—probably because nearly everyone had long assumed that the treaties at issue were legally binding, making implementing legislation unnecessary.

A significant line in the decision was buried in the footnotes. In the now-famous third footnote, the Court endorsed a “background presumption” against finding that treaties confer private rights or private rights of action, even when they are self-executing. This represented a significant shift away from U.S. courts’ historical approach to interpreting treaties. Indeed, it effectively reversed what had, during most of the country’s history, been a background presumption in favor of finding treaties to confer private rights of action whenever they conferred private rights. The decision thus highlighted, and heightened, uncertainty surrounding the enforcement of treaties in the U.S. courts.

This Article examines the status of treaties in U.S. courts—and how the international legal commitments expressed in our treaties “come home”—in three interlocking steps. First, it seeks in Part I to provide an account of the legal and historical context of Medellín—examining both the case law that led up to the decision and how the lower courts have since responded. Even before the Supreme Court’s 2008 decision, much had changed in the way the courts enforced treaties created under Article II of the U.S. Constitution. During the first 170 years of U.S. history, courts generally applied a strong presumption that private litigants could use treaties to press their claims in court. That all began to change just after World War II, as international treaties—and international human rights treaties in particular—proliferated. Still, the old presumption remained in place for certain categories of treaties. Understanding this transformation enables a deeper appreciation of the impact Medellín is already having, and will likely have in the future, on the enforcement of international law in U.S. courts.

Second, the Article aims in Part II to place direct enforcement of international law through private rights of action into broader context in a second way—by looking at all the ways in which international law can be enforced in U.S. courts. The direct enforcement of treaties called into doubt in the wake of Medellín is only a part of the picture. Treaties are enforced in U.S. courts in several other ways as well—through what we term “indirect enforcement,” “defensive enforcement,” and “interpretive enforcement.” These other ways of enforcing international commitments in U.S. courts are often ignored in the scholarly literature about judicial enforcement of international law. Many scholars treat one or the other in isolation, but no one considers them as a whole. As a result, advocates and critics of international law alike have placed too much emphasis on the use of international law as a cause of action for private litigants. This, in turn, has caused them to overestimate Medellín’s likely effect on the enforcement of international law in U.S. courts.

Finally, in Part III, this Article considers steps that can be taken to increase the likelihood that treaties will continue to be enforced directly, even in a post-Medellín world. We offer three proposals for how each of the branches of the federal government can strengthen the enforcement of international law. First, Congress could pass legislation providing for the judicial enforcement of certain subsets of Article II treaties. Second, the President and Senate could adopt a clear statement rule for treaty ratification—a practice through which the President submits treaties to the Senate for ratification with clear statements about whether they are self-executing, and through which the clear statement becomes part of the treaty’s formal text or accompanying documents. Third, the executive branch could pursue direct enforcement of treaty obligations itself. Where treaties are clear that private litigants lack rights of action, the U.S. government could bring affirmative lawsuits against state and municipal agencies that refuse to comply with treaties, to enjoin those entities from activities that place the United States in violation of its international obligations.

Our proposals each offer a path toward more effective enforcement of Article II treaties in U.S. courts. They are only valuable, of course, if the United States has an interest in abiding by the international legal commitments it makes. We recognize that there is an ongoing debate about this proposition. Although proving the proposition that it is in the United States’s interest to abide by its international law commitments is not a goal of this Article, we note at least two reasons to believe it is true. First, when treaties provide reciprocal benefits, the United States clearly gains from the enforcement of the agreements by other parties to the treaty. Indeed, for the 4.5 million Americans who live overseas and the 60 million who traveled abroad last year—not to mention the U.S. businesses whose trillions of dollars in investments are protected by a variety of international treaties—the ability to enforce treaty-based rights abroad is essential. But other countries are less likely to observe their treaty obligations if the United States fails to live up to its side of the bargain. A private right of action is often the best way to guarantee this compliance, for the federal judiciary is in a unique position to press the political branches to honor the country’s international commitments, particularly when those commitments benefit individuals. Second, regardless of the value one may place on any given international agreement—or the benefit that the United States receives from that particular treaty—the United States has a broader and deeper interest in demonstrating its capacity to abide by the commitments it makes. Until the United States chooses to end an international legal commitment (which it ordinarily can do by simply providing notice to this effect), it is obligated to comply with the agreement as a matter of international law. Failure to comply with such obligations makes the United States a law violator potentially subject to sanctions and—likely most harmful of all—an unreliable treaty partner. For these reasons, even those who dislike or disapprove of particular international agreements should wish to see the United States live up to the commitments that it has made.

Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law

Written by Anthea Roberts & Sandesh Sivakumaran

International law is no longer conceived of as regulating the rights and obligations of states alone, yet any suggestion that nonstate actors could or should play a role in the creation of international law remains highly controversial. States jealously guard their lawmaking powers as a key attribute of statehood, making them generally resistant to the idea of sharing such powers with any nonstate actors. States are particularly hostile to the possibility of granting nonstate armed groups a lawmaking role, given states’ perceptions of the illegitimacy of and threat posed by such actors. Nonetheless, we argue that it is time to reconsider whether it is possible and desirable for nonstate actors to play a role in the making of international law. In particular, we set out the case for granting nonstate armed groups a limited role in the creation of international humanitarian law.

Recent decades have seen a significant expansion of the international humanitarian rules regulating the conduct of states and armed groups in noninternational armed conflicts. Historically, the principal concern of international humanitarian law was the regulation of inter-state armed conflicts. Until the mid-1990s, only a handful of provisions applied to the actions of states and armed groups in noninternational armed conflicts. Since then, numerous treaties have been drafted or revised to regulate noninternational armed conflicts. Customary international humanitarian law has undergone a similar expansion. Many of the rules that previously governed only states in international armed conflicts now apply to both states and armed groups in noninternational armed conflicts.

But with this growth comes an anomaly. The established doctrine of sources recognizes three sources of international law: treaties, custom, and general principles. Under this doctrine, states, and only states, make international law by entering into treaties or through the recognition of customary rules or general principles based on states’ views and practices. The rationale behind this approach has been simple. Traditionally, only states were seen as having rights, duties, and enforcement capacities under international law. Therefore only states were understood as subjects of international law. At the same time, long-standing notions of voluntarism dictated that international law must be derived from the consent of those it governed. International law was thus understood as the sum total of obligations consented to by states and binding upon those states.

This reasoning does not hold when applied to noninternational armed conflicts. Only states create the international humanitarian law that governs the conduct of both states and armed groups. In international armed conflicts, the practice and views of both parties to the conflict play a role in creating the international law that regulates such conflicts and by which the parties are bound. In noninternational armed conflicts, by contrast, the practice of either some of the parties (if the conflict is between a state and one or more armed groups) or all of the parties (if the conflict is between two or more armed groups) is excluded from consideration. As international humanitarian law now treats nonstate armed groups as subjects rather than mere objects of international law, it is worth questioning whether nonstate armed groups can and should be given a role in the creation of the international law that governs conflicts to which they are parties.

In Part I, we provide a framework for understanding the potential for nonstate entities to play a role in making public international law. The typically accepted dichotomy between states and nonstate entities is unhelpful in analyzing this issue because it reinforces the view that states and only states make international law, while obscuring important differences between various types of nonstate entities. We argue that any normative evaluation of whether nonstate entities should be granted a lawmaking role requires one to adopt an analytical framework that is capable of distinguishing between states, state-empowered bodies (such as the United Nations and the International Court of Justice) and nonstate actors (such as individuals, corporations, and armed groups). Focusing on the last category, we outline a variety of justifications for granting some or all nonstate actors a role in lawmaking. We conclude, however, that whether and how a particular nonstate actor should participate in law creation depends, at least in part, on the advantages and disadvantages of recognizing such a role for that particular type of actor. We argue that this analysis should be judged from the perspective of the international community as a whole rather than from the viewpoint of states alone.

In Part II, we apply this test to determine whether armed groups should be given a role in the creation of international humanitarian law applicable in noninternational armed conflict. This issue has received very little attention to date; no systematic studies have been conducted on the potential costs and benefits of recognizing such a role. Drawing on existing but rarely discussed practices, we argue that recognizing a limited lawmaking role for some armed groups could create significant benefits (such as increasing a sense of ownership and compliance) and that some of the possible costs of doing so have been overplayed (such as inappropriately legitimizing armed groups and affecting their legal status). We do not argue that armed groups should be given the same lawmaking roles as states. Instead, we propose an approach that would accommodate the practices of armed groups within a less statist approach to the doctrine of sources of international humanitarian law. We recognize that any proposal for including armed groups in the process of law creation will be met by a host of theoretical and practical objections. Nonetheless, we set out a lawmaking paradigm that allows for constructive engagement with armed groups without downgrading the standards of international humanitarian law, treating armed groups as akin to states, or granting them a comparable role to states in the creation of international humanitarian law.

Note: Stability of Maritime Boundary Agreements

Written by Julia Lisztwan

Jabal al-Tair is an island lying halfway between Yemen and Eritrea, northwest of the Bab al-Mandeb passage at the mouth of the Red Sea. On December 17, 1999, an arbitral tribunal concluded that the island belonged to Yemen, entitling the country to claim the surrounding maritime zones. On that basis, the tribunal delimited the maritime boundary with Eritrea. Eight years later, on September 30, 2007, the volcano that created Jabal al-Tair exploded after having lain dormant since the late nineteenth century and collapsed the western portion of the island. What would have happened to the Yemeni-Eritrean boundary if the island had disappeared entirely?

Under the United Nations Convention on the Law of the Sea (UNCLOS or the Convention), a coastal state may claim a twelve-mile territorial sea, a twenty-four-mile contiguous zone, a two hundred-mile exclusive economic zone, and a two hundred-mile continental shelf. These four zones are measured from “baselines”—lines generally following the contours of the coast. However, coastlines are constantly changing: the explosion of Jabal al-Tair, although dramatic, is hardly a unique example of coastline shift. In addition to the destruction or formation of islands, coastlines continually move through the processes of accretion, avulsion, erosion, the melting of glaciers, seismic movements, and mining. The pace of those activities is likely to increase. Scientists predict that climate change and the associated rise in sea level may cause significant and unpredictable coastline shift. Already over half of the Mississippi and Texas shorelines have eroded “at average rates of 3.1 to 2.6 [meters per year] since the 1970s, while 90% of the Louisiana shoreline [has] eroded at a rate of 12.0 [meters per year].” A one-meter rise would flood seventeen percent of Bangladesh. Even a thirty-centimeter rise could cause the coastline to retreat forty-five meters in some areas.

Yet UNCLOS is silent on whether baselines, and therefore maritime zones, shift with the coastline—whether they are “ambulatory.” That gap creates potentially significant uncertainty in the law of the sea. Billions of dollars are at stake: maritime zones are sources of great wealth for coastal states, containing “[a]ll exploitable offshore hydrocarbons, all commercially usable minerals in unconsolidated sediments, . . . over 90 per cent of the commercially exploitable living resources of the sea, nearly all marine plants, and all known sites suitable to the production of energy . . . .” Those zones also provide states with important navigational, scientific, and jurisdictional rights.

To address this uncertainty, several scholars have proposed that baselines should be fixed to specific geographic coordinates  such that maritime limits and boundaries would be permanent, akin to most land boundaries. Two chief concerns motivate this proposal. One group of scholars has argued that, without fixed baselines, island states submerged by rising sea levels will lose their maritime entitlements. Fixing baselines would permit the stateless populations to permanently retain rights to their historic maritime zones.  This first issue is not the concern of this Note.  A second group of scholars has focused on a broader concern: stability. They argue that baselines should be permanently fixed, since constant flux in limits and boundaries will almost certainly give rise to resource conflicts.  This Note focuses on this second concern and questions whether it is overstated. Stability is indeed central to the international boundaries regime,  but the analysis underlying the proposal to fix baselines has not considered an independent source of stability: treaty law.

Although UNCLOS is a formidable attempt to provide a comprehensive regime for management of the oceans,  encompassing issues as diverse as maritime delimitation, pollution,  and piracy,  the Convention is not the sole relevant governing law for maritime entitlements. It interacts with the larger body of international law, including the Vienna Convention on the Law of Treaties (Vienna Convention).  Those arguing for permanently fixed baselines have conflated maritime limits and maritime boundaries in their analysis,  thus overlooking the relevance of the Vienna Convention and treaty law to boundaries. The fundamental differences between limits and boundaries must therefore be considered when assessing the stability, or instability, of maritime zones with ambulatory baselines.

Where a state’s claimed territorial sea or exclusive economic zone does not overlap with any other state’s claim, the area may be unilaterally claimed, barring protest from other states. The outmost extent of such territorial sea and exclusive economic zones are called “limits”  or “outer limit lines,”  respectively. Where, however, two or more states have overlapping claims, the states must reach agreement on the delimitation of the contested area,  and establish “lines of delimitation.”  For the sake of clarity, this Note will refer to such lines of delimitation as maritime boundaries.  Treaty law, in particular the Vienna Convention, plays an important role in the establishment, interpretation, and termination of these boundary agreements.

This Note argues that under the Vienna Convention, boundary agreements are highly stable despite coastline shift. The states parties to a maritime boundary treaty may not use geographic change as grounds for unilateral termination. Hence, regardless of whether baselines are ambulatory or fixed, the international maritime boundary regime is largely secure. However, in a limited number of scenarios, coastline shift may generate new rights for third states. Fixed baselines may substantially impinge on those rights, suggesting that the proposal does not satisfactorily resolve the problem of unstable maritime entitlements.

Part II begins by describing coastline shift and establishes that, although climate change may have an unprecedented impact on the scale of changes, the problem of unstable coastal geography is not novel. Despite this, UNCLOS contains no provisions indicating whether baselines are ambulatory. Further, state practice only tentatively suggests a general understanding of baselines as ambulatory. The Part concludes that the status of baselines remains an open question.

Part III reviews the underlying principles at stake when considering whether to fix baselines. Fixed baselines address two main concerns: instability and inefficiency. However, the proposal would undermine two underlying principles of UNCLOS. The first is the historic premise that the land dominates the sea: all maritime entitlements derive from the land. A state therefore may claim only maritime zones adjacent to its coastline. The second is equity: each claim on the ocean reduces the collective common heritage of the high seas and seabed resources. As coastlines retreat, if outer limits remain fixed, coastal states would control an increasingly large area of the oceans. Although the total area of the high seas would not shrink, the question remains as to who should “benefit” from retreating coastlines: the coastal state or the global community?

The four concerns identified in Part III—instability, inefficiency, historical land tie, and equity—often conflict. The extent to which they are in opposition, however, depends on the geographic scenario. Part IV lays out five possible scenarios of coastal geographic change. The first two scenarios address limits, a detailed consideration of which is beyond the scope of this Note. Rather, this Note focuses on the third, fourth, and fifth scenarios, which address the impact of coastline shift on boundaries. Most maritime boundaries fall within scenario three. In such cases, coastline shift will only affect the areas of the delimited maritime zones, but not the type of zones between two states, and thus will not create new rights for third states. Those agreements are internally stable, as discussed in Part V. The fourth and fifth boundary scenarios address a subset of maritime boundaries: the rare cases in which shifting coastlines may generate new maritime zones, and therefore new rights for third states. Although Part V establishes that, as in scenario three, those agreements are internally stable, Part VI outlines how boundaries in the fourth and fifth scenarios may not be externally stable.

Part V addresses the internal stability of all maritime boundary agreements, as between states parties. Some authors have suggested that coastline shift from climate change may constitute a fundamental change in circumstances (rebus sic stantibus or “things standing thus”),  justifying unilateral termination under Article 62 of the Vienna Convention.  According to that argument, if baselines are ambulatory, countries can unilaterally terminate maritime boundary agreements.  The Part reviews the drafting history of the Vienna Convention to conclude that Article 62 does not permit unilateral termination under such circumstances. Further, even if a state could invoke Article 62 to terminate a boundary agreement, it should reasonably have anticipated changes in coastal geography. Thus, the state would be unable to demonstrate that unchanging coastal geography was an essential basis for its consent—necessary for invoking Article 62. Part V therefore concludes that regardless of whether baselines are ambulatory or fixed, coastline shift will not affect the internal stability of maritime boundary agreements as between the states parties.

Part VI turns to consider a small subset of maritime boundaries: cases potentially creating new rights for third states. While most boundary agreements will likely be unaffected by ambulatory baselines, for a small category of highly important boundary agreements, the issue of whether baselines are ambulatory or fixed has significant effects on the rights of third states. Those agreements are internally stable, as discussed in Part V, but face external uncertainty under the doctrine of pacta tertiis.  The doctrine under Article 34 of the Vienna Convention provides that an agreement between states may not infringe upon the rights of third states without their consent.  As such, tribunal decisions have focused on third-state rights at the time an agreement is concluded, maintaining that states may not conclude agreements where third states have overlapping claims. But what happens if shifting coastlines generate rights for third states, such as widening an international strait beyond twenty-four miles? Part VI analyzes the potential for states to invoke such newly generated rights and concludes that, even in rare cases where such rights may be created, the existing boundary agreements will likely remain in effect.

In sum, while this Note recognizes that fixed baselines would provide increased stability in the case of maritime limits, it concludes that ambulatory baselines will have a less destabilizing impact than some scholars predict. Moreover, in some rare instances, fixed baselines might even significantly impinge on third-state rights.

Comment: Two Competing Models of Activism, One Goal: A Case Study of Anti-Whaling Campaigns in the Southern Ocean

Written by Anthony L.I. Moffa

In February 2011, in the midst of Japan’s widely-criticized research whale hunt, the Japanese Agriculture Minister Michihiko Kano called the whaling fleet home months ahead of plan and hundreds short of its kill quota. The reason given for the abrupt end to the whaling season was harassment by a nongovernmental organization (NGO) called the Sea Shepherd Conservation Society (Sea Shepherds).  For years, the Japanese fleet had taken pride in its ability to outrun environmental activists,  and Japan had refused to put an end to its research whaling operations in the face of resolutions from the International Whaling Commission (IWC)  and repeated cessation requests. Ultimately, it was confrontation instigated by a renegade group, rather than any international resolution or NGO pressure, that brought an abrupt end to Japan’s controversial whaling practices.

In recent years, the NGO community has played an increasingly important and well-recognized role in shaping international law and in focusing enforcement resources. As a result, NGOs have earned invitations as official delegates to several major international conventions, particularly those addressing the environment.  Moreover, news of the abrupt end of the Japanese whaling season demonstrates that environmental NGOs now have the ability to compel compliance with international commitments through unilateral action.

According to the Sea Shepherds as well as popular literature, this forced compliance is nothing more than private “enforcement” of international law.  However, this assessment is too simplistic; a more nuanced theory of the principal functions of international lawmaking, known as the “New Haven School,”  identifies seven distinct categories of actions: “intelligence, promotion or recommendation, prescription, invocation, application, termination, [and] appraisal.”  Examining NGO activism through this paradigm is particularly useful for a number of reasons. First, the theory’s well-defined, function-based stages better describe the effects of activism than simple, conventional designations that rely on the identity of the actors or the forum. Indeed, NGO activism can be understood as carrying out four of the seven aforementioned functions: promotion, prescription, invocation, or application.  In addition to this descriptive advantage, the legal realist philosophical underpinnings of the New Haven School make it a natural fit for describing the unorthodox, but increasingly legitimate, role of NGOs in the international legal system. Finally, the longevity and prominence of the New Haven School provide a credible, well-understood framework to facilitate continued scholarly debate.

This Comment will use the anti-whaling campaigns in the Southern Ocean  as a case study to analyze two competing models of NGO activism. The Comment defines the two competing models as “protest” and “interventionist” activism.  This Comment will show that the lawmaking function of activism and the effect it has on international behavioral norms change depending on the model employed. It concludes that, despite serious drawbacks, there are certain circumstances under which NGOs should adopt more interventionist activism to enforce international environmental law.

In the Southern Ocean, two types of environmental campaigns have targeted the whaling industry. One approach, employed by Greenpeace,  utilizes consumer boycotts and protests to encourage divestment from the industry. The other approach, taken by the Sea Shepherds, uses a fleet of ships to directly intervene in and obstruct whaling operations in the Southern Ocean.

Greenpeace’s approach exemplifies protest activism, which consists of publicly organized, undoubtedly legal activities meant to put indirect pressure on the governmental or private entities that are purportedly violating international law. This is a law-promoting or perhaps law-prescribing function; it aspires to shift public policy and community expectations. The Sea Shepherds’ approach, in contrast, exemplifies interventionist activism, a model that involves either borderline- or blatantly illegal tactics to confront violators directly. Interventionist action generally includes law invocation and direct application of force to implement existing laws and policies. Contrasting the effectiveness and legality of these distinct approaches to anti-whaling activism will inform the international community’s important and inevitable determination of the role of NGOs in international law enforcement.

This Comment is divided into four parts. Part I will describe the problem presented by international whaling and provide a historical context of the industry, its relatively recent regulation, and specific actions concerning Japanese whaling in the Southern Ocean. Parts II and III will draw on this case study to illustrate the competing models of activism—protest and interventionist—and highlight the demonstrated advantages of and drawbacks to each. Part IV will lend insight into the implications of permitting each model.

Recent Publications

Domestic Violence and International Law. By Bonita Meyersfeld.

International Authority and the Responsibility to Protect. By Anne Orford.

State Responsibility for International Terrorism. By Kimberley N. Trapp.

Changes of State: Nature and the Limits of the City in Early Modern Natural Law. By Annabel S. Brett.

Corruption and Human Rights in India: Comparative Perspectives on Transparency and Good Governance. By C. Raj Kumar.

The Constitution’s Gift: A Constitutional Theory for a Democratic European Union. By John Erik Fossum and Augustín José Menéndez.

Justice in International Law: Further Selected Writings. By Stephen M. Schwebel.

Diplomacy: A Singapore Experience. By S Jayakumar.