* Inaamul Haque, Former Executive Director, World Bank; Adjunct Professor, Washington College of Law, American University, Washington, D.C. The author is thankful to the American University International Law Review for drawing upon his paper on the Doha Development Agenda. This Article contains personal views of the authors, and these views do not necessarily reflect the views of the World Bank or of the governments Mr. Haque represented at the Board of the Bank.
** Dr. Ruxandra Burdescu, PS Specialist, World Bank; Teaching Assistant, “N. Titulescu” Law School, University of Craiova, Romania.
1 Report of the International Conference on Financing for Development, Monterrey Mexico, 18–22 Mar. 2002, para. 9, at 3, U.N. Doc. A/CONF.198/11, U.N. Sales No. 02.11.A.7 (2002), available at http://www.un.org/esa/ffd/aconf198-11.doc [hereinafter Monterrey Consensus].
2 Outcome of International Conference on Financing for Development, Report of the Secretary General, U.N. GAOR, 57th Sess., Supp. No. 344, Agenda Item 95, para. 1, at 2, U.N. Doc. A/57/344 (2002) [hereinafter International Conference].
3 High-Level Intergovernmental Consideration of Financing for Development, G.A. Res. 9694, U.N. GAOR, 54th Sess., Supp. No. 49, 87th plen. mtg., para. 3, at 2, U.N. Doc. A/Res/
54/196 (1999). Since this Resolution predates the Millennium Summit, there is no mention of the Millennium Development Goals in it.
4 There are a number of definitions for the term “development” and various, often competing, development theories. Some scholars have accorded great importance to the precise meaning of the term. For example, Denis Goulet points out: “It matters little how much information we possess about development if we have not grasped its inner meaning.” Stephen C. Smith & Michael P. Todaro, Economic Development 110 (8th ed. 2002) (citing Denis Goulet, The Cruel Choice: A New Concept in the Theory of Development (1971)). The scholarly quest for the meaning of the term continues. However, the variety of definitions can prove to be problematic when a concrete strategy needs to be evolved to achieve the goal of development. Hence, the Monterrey Conference very wisely concentrated on certain measurable and concrete goals. Paul Streeten, the Former Director of the World Development Institute, presents a similar conceptual approach, stating that “[d]evelopment must be redefined as an attack on the chief evils of the world today: malnutrition, disease, illiteracy, slums, unemployment and inequality.” Id. (quoting Paul P. Streeten).
5 Development Committee Communiqué, International Monetary Fund, para. 2 (Sept. 28. 2002), available at http://www.imf.org/external/np/cm/2002/092802a.htm [hereinafter Development Committee Communiqué].
6 In the 1990s, many international conferences identified a number of goals for the international community. The process culminated in the adoption of the “United Nations Millennium Declaration,” at the turn of the twentieth century, in September 2000, which contained clear commitments to make the right to development a reality for everyone. The summit agreed on a set of international development goals, known as the Millennium Declaration Development Goals (MDGs), to be achieved by 2015. The eight MDGs included: (1) resolving to cut in half the proportion of people living in extreme poverty (i.e., with income of less than US$1 a day and those who suffer from hunger); (2) guaranteeing primary education to all children; (3) promoting gender equality and empowering women; (4) cutting child mortality by two-thirds (5) improving maternal health; (6) combatting HIV/AIDS, malaria, and other diseases; (7) ensuring environmental sustainability; and (8) developing a global partnership for development. United Nations Millennium Declaration, G.A. Res. 55/2, U.N. GAOR, 55th Sess., 8th plen. mtg., Agenda Item 60(b), paras. 19–21, U.N. Doc. A/RES/55/2 (2002), available at http://www.un.org/millennium/dec-
laration/ares552e.htm [hereinafter Millennium Declaration]; see also World Bank Group, About the Goals, at http://www.developmentgoals.org/About_the_goals.htm (last visited Apr. 27, 2004).
7 International Conference, supra note 2, para. 5, at 2.
8 Monterrey Consensus, supra note 1, para. 68, at 15.
9 Development Committee Communiqué, supra note 5, para. 3.
10 The Development Committee, established in 1974, can be regarded as an authentic voice of both developed and developing countries. It was set up “to advise the Boards of Governors of the [World] Bank and the [International Monetary] Fund on critical development issues and on the financial resources required to promote economic development in developing countries.” World Bank Group, Development Committee, at http://web.worldbank.org/
WBSITE/EXTERNAL/DEVCOMMEXT/0,,menuPK:60001650~pagePK:60000303~piPK:640
00842~theSitePK:277473,00.html (last visited Feb. 19, 2004).
11 Development Committee Communiqué, supra note 5, para. 3.
12 Percy E. Corbett, Law in Diplomacy 273 (1959).
13 Id.
14 C. Wilfred Jenks, Law, Freedom and Welfare 64 (1963).
15 See Evan Luard, The United Nations: How It Works and What It Does 8 (2d ed. 1994).
16 James D. Wolfensohn, Remarks to the Plenary Meeting at the Conference on Financing for Development in Monterrey, Mexico, World Bank News Release No. 2002/ 251/S (Mar. 21, 2002), at http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:20043623
~menuPK:34463~pagePK:64003015~piPK:64003012~theSitePK:4607,00.html [hereinafter Wolfensohn, Remarks].
17 “Developing countries are hungry for foreign direct investment (FDI) and are reforming their markets to attract it,” as revealed by a survey conducted by the European Round Table of Industrialists (ERT), with help from the International Chamber of Commerce (ICC). International Chamber of Commerce, Market Reform Attracts Foreign Investment in Developing Countries, Survey Reveals, at http://www.iccwbo.org/home/
news_archives/2000/ert_survey.asp (July 10, 2000). The report, stemming from two years research, showed continuous improvement in the investment conditions of thirty-three developing countries. Id. The survey included countries in Latin America, Asia, and Africa. Id. “Citing examples set by countries formerly closed such as Syria, Iran and Vietnam, the survey found many countries have pressed ahead with reforms to attract FDI despite events such as the Asian financial crisis and the failure of multilateral talks on investment at the OECD [Organization for Economic Co-operation and Development].” Id. The survey pointed to several benefits resulting from FDI: knowledge disseminates more quickly between global markets; consumers have improved choices as a result of more support for competition; and emphasis on best business practices and good corporate governance lead to increased environmental awareness. Id.
18 See e.g., Terre des homes, The Appeal to Governments from European NGOs on Our Minimum Expectations for the Outcome of the Monterrey Financing for Development Conference, at http://www2.weed-online.org/ffd/EU_NGOs_on_Monterrey.htm (last visited Apr. 27, 2004).
19 World Bank Group, World Development Report 2000/2001, Attacking Poverty: Opportunity, Empowerment, and Security 3 (2001), available at http://www.world-
bank.org/poverty/wdrpoverty/report/overview.pdf [hereinafter Attacking Poverty].
20 See World Bank Group, Water Supply and Sanitation, at http://www.worldbank.
org/watsan/ (last visited Apr. 27, 2004).
21 See James D. Wolfensohn, The Challenges of Globalization: The Role of the World Bank, Speech Before the Public Discussion Forum (Apr. 2, 2001), at http://web.world-
bank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:20025027~menuPK:34472~pagePK:34370~piPK:34424~theSitePK:4607,00.html.
22 Attacking Poverty, supra note 19, at 3.
23 James D. Wolfensohn, Partnership for Development and Peace, Address at the Woodrow Wilson International Center (Mar. 6, 2002), in World Bank, A Case for Aid: Building a Consensus for Development Assistance 5 (2002).
24 Id. at 6–7.
25 World Bank Group, Data on Poverty, Social Indicators, Health: Life Expectancy, at http://www.worldbank.org/poverty/data/trends/mort.htm (last visited Apr. 27, 2004).
26 World Bank Group, The Little Data Book 16–22 (4th ed. 2002).
27 World Bank Group, Data on Poverty, Social Indicators, Education: Primary Enrollments, at http://www.worldbank.org/poverty/data/trends/educ.htm (last visited Apr. 27, 2004).
28 Wolfensohn, Remarks, supra note 16 (“And for perhaps the first time in an international meeting there is greater consensus than ever before about what needs to be done.”).
29 Chancellor Gordon Brown, Speech Given at the Commonwealth Parliamentary Association’s Conference (Mar. 12, 2002), at http://www.hm-treasury.gov.uk/newsroom_and
_speeches/press/2002/press_19_02.cfm.
30 World Bank Group, Globalization, Growth, and Poverty: Building an Inclusive World Economy 1 (2002), available at http://econ.worldbank.org/prr/global-
ization/text-2857/ [hereinafter Globalization, Growth, and Poverty].
31 Even though globalization is most commonly defined through increased cross-border trade and FDI, it is far more than economics. It may also involve discourse on human rights or the territorial notion of state sovereignty. Of course, the gains from trade (between nations and firms) increase global welfare by having products made where they can be produced cheaply and by allocating them to the people who want them more. See generally Mark A.A. Warner, Globalization and Human Rights: An Economic Model, 25 Brook. J. Int’l L. 99 (1999). Indeed, states and other legal actors—for example, international organizations—facilitate the process of globalization by legitimizing or legalizing its effects upon the international community. In conclusion, globalization has a broad significance and transforms the economies of specific parts of the world, as well as politics, culture, and religion. It encompasses multifaceted, multi-layered, and often disjunctive processes.
32 Globalization, Growth, and Poverty, supra note 30, at ix.
33 Secretary General Kofi A. Anan, Message to the Baur International Model United Nations (Apr. 6, 2001), at http://www.carolbaur.edu.mx/bimun2003/presentation.htm.
34 See The World Bank Group, Questions and Answers with David Dollar, at http://
www.worldbank.org/economicpolicy/globalization/dollarqa.htm (last visited Apr. 27, 2004) (noting that “the more globalized” developing countries that, in the 1980s and 1990s, sought FDI and opened up their markets experienced increases in their per capita growth rates) [hereinafter Questions and Answers with David Dollar].
The World Bank strongly argued that the round of trade talks launched in November 2001 in Doha, Qatar, marked the first time that developing country interests were placed at the center of a multilateral round of trade negotiations. The World Bank favors lifting the protectionist measures that have locked low-income countries out of rich-country export markets. A World Bank Report outlines the benefits that would flow to developing countries and the world’s poor from a liberalization of trade. It estimates that substantially lowering agricultural manufacturing tariffs and ending agricultural subsidies could cut the number of people living in poverty by eight percent by 2015. The World Bank, Global Economic Prospects 2004: Realizing the Development Promise of the Doha Agenda, at xxix (2003), available at http://www.worldbank.org/prospects/gep2004/full.pdf.
There is a growing consensus in empirical studies that greater openness to international trade has a positive effect on country per capita income. A study by Jeffrey Frankel and David Romer estimates that increasing the ratio of trade to GDP by one percentage point raises per capita income by between one-half and two percent. See Jeffrey A. Frankel & David Romer, Does Trade Cause Growth?, 89 Am. Econ. Rev. 379, 379–99 (1999), available at http://home.hio.no/~ivar-br/fag/intecon/Tradeandgrowth.pdf.
Numbers of other studies reach similar conclusions, though the estimated size and statistical significance of the effects vary. See, e.g., Sebastian Edwards, Openness, Productivity and Growth: What Do We Really Know?, 108 Econ. J. 383–98 (1998). For a more skeptical assessment, see generally Dani Rodrik, The New Global Economy and Developing Countries: Making Openness Work (1998).
Moreover, the idea that greater openness to international trade has a positive effect on country per capita income is not new but dates back to economic theories from at least 200 ago. World Bank Group, Does More International Trade Openness Increase World Poverty?, at http://www1.worldbank.org/economicpolicy/globalization/ag02.html (last visited Mar. 18, 2004). The most widely-known and oldest of such theories holds “that trade lets an economy make better use of its resources by allowing imports of goods and services at a lower cost than they could be produced at home.” Id.
35 Joseph E. Stiglitz, Globalization and Its Discontents 4 (2002). The anti-globalization protests themselves are the result of this interconnectedness. Links between activities in different parts of the world, particularly those links through Internet communication, have greatly strengthened these activities.
36 Such protests occurred, for example, at the WTO meeting in Seattle (1999), World Bank and IMF Spring Meetings in Washington (April 2000), Annual Meetings in Prague (2000), and Annual Meetings in Washington (September 2002).
37 World Bank Group, Data on Poverty, Income Poverty, The Latest Global Numbers, at http://www.worldbank.org/poverty/data/trends/income.htm (last visited Apr. 29, 2004) (reporting that, although the percentage of the world’s population living on less than $1 per day decreased during the 1987–1998 period, the number of actual extreme poor has increased with population growth).
38 See Stiglitz, supra note 35, at 5.
39 As one study notes:
Ours is a world out of balance. Of the six billion people living in the world today, one billion receive 80 percent of global income, while more than one billion barely survive on less than a dollar a day. And, while developed countries spend $600 billion a year on defense, and incur $300 billion in direct and indirect agricultural subsidies, they offer only $56 billion a year in aid to developing countries. Over the next 25 years, 50 million people will be added to the population of rich countries. But over the same period, about one and a half billion people will be added to the population of poor countries. Today, more than 2.9 billion people—nearly half the world's population—are under the age of 25. Many of these young people will experience poverty and unemployment. Disillusioned with what they will see as an inadequate global system, many will leave their homes, and often their countries, to find work.
World Bank Group, The Challenge: Reducing Poverty, at http://www.worldbank.org/
progress/reducing_poverty.html (last visited Feb. 21, 2004); see also Thalif Deen Rich Nations Fail Aid Pledge to Poor, DAWN/The InterPress News Service, Nov. 7, 2003, available at http://www.ipsnews.net/interna.asp?idnews=20996.
40 Stiglitz, supra note 35, at 7.
41 See generally Shahid Yusuf, Globalization and the Challenge for Developing Countries (2001), available at http://www1.worldbank.org/economicpolicy/globaliz-
ation/documents/wps2168.pdf (last visited Apr. 29, 2004); Questions and Answers with David Dollar, supra note 34; Nicholas Stern, Foreword to Globalization, Growth, and Poverty, supra note 30, at x.
42 Stern, supra note 41, at x.
43 Id.
44 Id. at x–xi.
45 See id. at xi.
46 See Kenneth Anderson, Public International Organizations, NGOs, and Democratic Sovereignty in the Era of Globalization: An Essay on Contested Legitimacy (Sept. 27, 2000) (unpublished manuscript, on file with author) (citing Malcolm Waters, Globalization 7–8 (1995)).
47 See Inaamul Haque, From Charity to Obligation: A Third World Perspective on Concessional Resource Transfers, 14 Tex. Int’l L.J. 389, 394 (1979). Many leading scholars of the nineteenth century subscribed to the view that international law applied only between “the civili[z]ed and Christian people of Europe or to those of European origin.” R.P. Anand, Attitude of the Asian-African States Toward Certain Problems of International Law, 15 Int’l & Comp. L.Q. 55, 59 (1966) (quoting Henry Wheaton, Elements of International Law 17–18 (8th ed. 1866)).
48 See United Nations, Growth in UN Membership, 1945–2003, at http://www.un.org/
Overview/growth.htm (last visited Apr. 29, 2004).
49 With the exception of Switzerland, the new entrants are developing or transitional economies.
50 U.N. Charter art. 4, para. 1.
51 On the second wave of globalization, see Questions and Answers with David Dollar, supra note 34.
52 Peter VerLoren Van Themaat, The Changing Structure of International Economic Law 21 (1981). One of the difficulties of defining the concept of IEL springs from the fact that many scholars do not use the expression as such, but instead prefer to talk about parts of the subject rather than about the subject as a whole. There are numerous scholars and writers who address the subjects of trade law, investment, monetary law, developing states, and economic sanctions, but they do not refer to the phrase “international economic law.” Historically, it can be claimed that there are authors who pointed to the origins of IEL as early as the twelfth century. Id. at 22. Recently, of course, there has been an explosion of articles, journals, books, and theories addressing various facets of IEL. See, e.g., id.
53 See id.
54 Id. at 21 (citing D. Carreau et al., Droit International Economique 11 (2d ed. 1980)). The authors provide the following translation: “That branch of international law, which regulates, on one hand, the establishment, on the territory of a State, of different means of production (persons and capital) from abroad, and, on the other hand, the international transactions of goods, services and capital.”
55 Van Themaat, supra note 52, at 20–22.
56 Id.
57 See id. at 26.
58 One author considers that ninety percent of international law work relates to IEL. John H. Jackson, Global Economics and International Economic Law, 1 J. Int’l Econ. L. 1, 8 (1998). There are others who maintain that IEL is or should be a discipline on its own, separate from public international law. See id. at 8–9; Colloque d’Orléans, Aspects du Droit International Economique 29–31 (1952).
59 Id.
60 Id. at 14.
61 Id. at 2. Under the pressure of the problems that arose in the 1970s and 1980s, the general understanding of concept of development became strained. See Daniel D. Bradlow, Development Decision-Making and the Content of International Development Law, 27 B.C. Int’l & Comp. L. Rev. 195, 196–99 (2004). As a consequence “the consensus [on the content of international development law] has broken down.” See id. at 199.
62 See Rumu Sarkar, Development Law and International Finance 47 (Rosa M. Lastra & J.J. Norton eds., 1999) (“Further, development law should also be distinguished from the tradition of the international law of development popularized during the 1970s as part of the NIEO Agenda.”).
63 Eugene V. Rostow, Planning for Freedom: The Public Law of American Capitalism 362 (1959).
64 Id.
65 W. Friedmann, The Relevance of International Law to the Process of Economic and Social Development, in 2 The Future of the International Legal Order 4 (Cyril E. Black & Richard A. Falk eds., 1970).
66 Id.
67 See Sarkar, supra note 62, at 49 (“Indeed, development law is meant to respond to the pressures being exerted by the entire globalization process, and the need to articulate, promulgate and implement organizing legal principles around those needs.”).
68 U.N. Charter art. 55.
69 Whatever may be differences in the interpretation of these articles, it is relevant to remember what Judge Azevedo aptly observed: “The Charter is a means and not an end. To comply with its aims one must seek the methods of interpretation most likely to serve the natural evolution of the needs of mankind. Whatever might have been the intention, or more appropriately in this case, the lack of intention at the time of the establishment of the United Nations, its Charter now creates obligations for the well-being of ‘humanity.’” Advisory Opinion on the Competence of the General Assembly for the Admission of a State to the United Nations, 1950 I.C.J. 3, 23 (Mar. 3) (dissenting opinion). Judge Alvarez stated that “[an institution] must develop, not in accordance with the views of those who created it, but in accordance with the requirements of international life.” Advisory Opinion on the Admission of a State to Membership in the United Nations, 1948 I.C.J. 56, 68 (May 28).
70 See supra note 6 (discussion on MDGs).
71 Sarkar, supra note 62, at 57 n.17 (“Co-operate: To act jointly or concurrently toward a common end. Co-operation: In patent law, unity of action to a common end or a common result, not merely joint or simultaneous action.”) (citing Black’s Law Dictionary 334 (6th ed. 1990)).
72 See Richard A. Falk, The Interplay of Westphalia and Charter Conceptions of International Legal Order, in 1 The Future of the International Legal Order 32 (Cyril E. Black & Richard A. Falk eds., 1969).
73 Id.
74 Provisional Verbatim Record of the Two Thousand Three Hundred and Fifteenth Meeting, U.N. GAOR, 29th Sess., at 67, U.N. Doc. A/PV.2315 (1974).
75 Id.
76 The fact that efforts made thus far have not resulted in a significant reduction of worldwide poverty clearly indicates the need for a new partnership concept based on a framework of mutual obligations between developed and developing countries designed to eradicate poverty. Fortunately, there are signs that the international community is moving towards such a partnership. In particular, the Monterrey Consensus and the Millennium Declaration have provided the blueprint of a partnership based on shared responsibilities between rich and poor nations. See Monterrey Consensus, supra note 1; Millennium Declaration, supra note 6.
77 See Letter Dated 25 June 2001 from the Secretary-General to the President of the General Assembly, U.N. High-Level Panel on Financing for Development, U.N. GAOR, 55th Sess., Agenda Item 101, U.N. Doc. A/55/1000 (2001).
78 Vicente Fox, Monterrey: A Turning Point, Wash. Post, Mar. 19, 2002, at A21.
79 Monterrey Consensus, supra note 1, para. 4, at 2.
80 Id. para. 1, at 2.
81 Id. paras. 1–9, at 2–3.
82 Id. para. 3, at 2.
83 Id.
84 Monterrey Consensus, supra note 1, para. 9, at 3.
85 Id.
86 Id.
87 Id. paras. 1–9, at 2–3.
88 Wolfensohn, Remarks, supra note 16.
89 See Sarkar, supra note 62, at 73.
90 Monterrey Consensus, supra note 1, ch. II, at 3–15.
91 Report on the G-24 Workshop on Financing for Development, Intergovernmental Group of Twenty-Four on International Monetary Affairs and Development, at 3 (Sept. 6–7, 2001), available at http://www.g24.org/ICFDRep.pdf (last visited Apr. 29, 2004) [hereinafter Report on the G-24 Workshop].
92 Monterrey Consensus, supra note 1, para. 3, at 2.
93 Id. ch. II, at 3.
94 Id. paras. 10–19, at 3–5.
95 Id.
96 Id. para. 20, at 5.
97 Report on the G-24 Workshop, supra note 91, at 6.
98 See World Bank Group, World Development Indicators (2002); see also International Finance Corporation, Annual Report 1995: The Climate for Private Investment, at http://www2.ifc.org/PUBLICAT/ANNREP/1995/CLIMATE.HTM (last visited Apr. 29, 2004).
99 Shahid J. Burki, Foreign Direct Investment: Has Pakistan Missed the Boat or Could It Play Catch Up (Dec. 2001) (paper presented at the Center for Strategic and International Studies).
100 See Globalization, Growth, and Poverty, supra note 30, at 10.
101 See Report on the G-24 Workshop, supra note 91, at 6–7. There are, however, different sets of figures, but the fact remains that private flows exceed ODA flows by a very wide margin. Id.
102 See Burki, supra note 99, at 2.
103 Id.
104 See Monterrey Consensus, supra note 1, para. 20, at 5.
105 Id. para. 21, at 5.
106 Id. para. 22, at 6.
107 See id.
108 Kenneth J. Vandevelde, Sustainable Liberalism and the International Investment Regime, 19 Mich. J. Int’l L. 373, 399 (1998).
109 According to Neil F. Gregory et al., Foreign Direct Investment: Executive Summary 2 (Int’l Fin. Corp., Lessons of Experience Series No. 5, 1997):
Recent trends toward globalization of production and consumption patterns have led to a sharp increase in global FDI. At the same time, trade and investment liberalization has brought more developing countries into the globalized economy. This has led to a dramatic surge in FDI flows to developing countries, which increased fivefold from 1990 to 1995, and exceeded $100 billion in 1996. This increase went mainly to 12 large developing countries, in part reflecting their economic size. Thus, China alone received $167 billion between 1990 and 1996 (1996 prices). Already a significant part of the economy in many developing countries, FDI is likely to continue at high levels for the foreseeable future.
Id.
110 Vandevelde, supra note 108, at 390.
111 Nicholas Stern, Making the Case for Aid, in World Bank Group, A Case for Aid: Building Consensus for Development Assistance 21 (2002) [hereinafter Stern, Making the Case].
112 Report on the G-24 Workshop, supra note 91, at 7.
113 Stephen Zamora, Economic Relations and Development, in The United Nations and International Law 251 (Christopher Joyner ed., 1997) (“Under the rubric of the Bretton Woods system, specialized agencies affiliated with the United Nations have adopted regimes covering the major categories of international economic relations. An important gap exists in the Bretton Woods system, though: no multilateral treaty either UN sponsored or otherwise, sets forth a regime for foreign investment.”) (footnote omitted).
114 FDI controls interests in productive enterprises.
115 Further complicating the matter of investment is that certain portfolio investments, such as purchases of stock or securities and bank deposits, do not carry majority control of an enterprise.
116 Again, adding to the complexity of investment is that such agreements may involve control over the production of goods and services produced by the licensee.
117 See Zamora, supra note 113, at 251.
118 There are many such subjects for which there are no internationally agreed rules due to the divergence in interests and perspectives between developed and developing countries, including expropriation of foreign-owned property, guarantees of and limitations on repatriation of investments, remedies for breaches of investment agreements, operations of multinational corporations, liability of parent companies for the acts of the subsidiaries, and licensing of technology.
From 1995 to 1998, a Multilateral Agreement on Investment (‘MAI’) was under negotiation within the Organization for Economic Cooperation and Development (‘OECD’), a group of thirty of the world’s largest and most developed countries . . . . [M]any . . . developing states raised vocal objections to the negotiations. Human rights and other non-governmental organizations (‘NGOs’) mounted a massive coordinated attack on the MAI. Over the course of 1998, the negotiations were suspended, and finally terminated, in the face of these objections but primarily because of critical differences between negotiating partners.
Glen Kelley, Multilateral Investment Treaties: A Balanced Approach to Multinational Corporations, 39 Colum. J. Transnat’l L. 483, 484 (2001) (footnotes omitted).
119 International law can be created from international agreements, customary practice, or general principles of common legal systems. See Restatement (Third) of Foreign Relations Law of the United States 102 (1987). Stephen D. Krasner, in Sovereignty: Organized Hypocrisy 3–4 (1999), has most eloquently presented the development of the concept of sovereignty:
The term sovereignty has been used in four different ways—international legal sovereignty, Westphalian sovereignty, domestic sovereignty, and interdependence sovereignty. International legal sovereignty refers to the practices associated with mutual recognition, usually between territorial entities that have formal juridical independence. Westphalian sovereignty refers to political organization based on the exclusion of external actors from authority structures within a given territory. Domestic sovereignty refers to the formal organization of political authority within the state and the ability of public authorities to exercise effective control within the borders of their own polity. Finally, interdependence sovereignty refers to the ability of public authorities to regulate the flow of information, ideas, goods, people, pollutants, or capital across the borders of their state.
Id.; see also Rett R. Ludwikowski, Supreme Law or Basic Law? The Decline of the Concept of Constitutional Supremacy, 9 Cardozo J. Int'l & Comp. L. 253, 263 (2001).
120 Ralph H. Folsom et al., International Business Transactions: In a Nutshell 543 (1st ed. 1995).
121 Agreement on Trade-Related Investment Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994), available at http://www.wto.org/
english/docs_e/legal_e/04-wto.pdf.
122 Ralph H. Folsom et. al., International Business Transactions: In a Nutshell, 783 (2d ed. 2001).
123 UNCTAD, World Investment Report 2000: Cross-Border Mergers and Acquisitions and Development 1 (2000), available at http://www.unctad.org/en/docs/wir00
ove.en.pdf (the number increased from 181 at the end of 1980 to 1856 at the end of 1999).
124 Jessica S. Wilste, An Investor-State Dispute Mechanism in the Free Trade Area of the Americas: Lessons from NAFTA Chapter Eleven, 51 Buff. L. Rev. 1145, 1153 (2003). Wilste further states that “this represents a significant increase from the approximately 1300 BITs in place worldwide by the end of 1998.” Id. at 1153 n.39 (citing Joel C. Beauvais, Note, Regulatory Expropriations Under NAFTA: Emerging Principles & Lingering Doubts, 10 N.Y.U. Envtl. L.J. 245, 252–53 (2002)). Continuing to detail such statistics, Wilste includes that “even just between 2000 and 2001, the number of total BITs in effect worldwide increased by 158 from 1941.” Id. (citing UNCTAD, Developing Countries Further Liberalize Their FDI Regime in 2001, at http://r0.unctad.org/en/subsites/dite/bit_dtt.htm); see also Andreas F. Lowenfeld, Investment Agreements and International Law, 42 Colum. J. Transnat’l L. 123, 124 (2003).
125 Wilste, supra note 124, at 1153–56.
126 See F.A. Mann, British Treaties for the Promotion and Protection of Investments, 52 Brit. Y.B. Int’l L. 241, 244 (1981).
127 See, e.g., Agreement Concerning the Promotion and Protection of Investments, Nov. 17, 1992, Austl.-Indon., 1770 U.N.T.S. 301 (1994) (Austl.-Indon. BIT); Agreement for the Promotion and Protection of Investments, Apr. 27, 1976, U.K.-N.Ir.-Indon., 1074 U.N.T.S. 195 (1978) (U.K.-Indon. BIT). For a comprehensive discussion on BIT contained rights, indirect expropriation, and breaches of fair and equitable treatment claims involving an allegation of improper interference with a foreign investment by the host States, see generally Stuart G. Gross, Inordinate Chill: BITs, Non-NAFTA MITs, and Host-State Regulatory Freedom: An Indonesian Case Study, 24 Mich. J. Int’l L. 893 (2003).
128 Jack J. Coe, Jr., International Commercial Arbitration: Taking Stock of NAFTA Chapter 11 in Its Tenth Year: An Interim Sketch of Selected Themes, Issues, and Methods, 36 Vand. J. Transnat’l L. 1381, 1414 (2003) (“Like their European counterparts, U.S. BITs in increasing numbers contemplate that a tribunal composed exclusively or partially of foreign lawyers (typically holding no judicial rank in their home countries) will be empowered, for the single dispute in question, to award damages to an investor, subject to little or no judicial review, perhaps based on state conduct that was perfectly lawful as a matter of domestic law.”).
129 These treaties often contain provisions limiting expropriation to public purposes only, in a nondiscriminatory fashion, and only upon the payment of prompt, adequate, and effective compensation. See id.; Malcolm N. Shaw, International Law 516–21 (3d ed. 1991).
130 Paul E. Comeaux & N. Stephan Kinsella, Reducing Political Risk in Developing Countries: Bilateral Investment Treaties, Stabilization Clauses, and MIGA & OPIC Investment Insurance, 15 N.Y.L. Sch. J. Int’l & Comp. L. 1, 6 (1994).
131 Thomas L. Brewer, International Investment Dispute Settlement Procedures: The Evolving Regime for Foreign Direct Investment, 26 Law & Pol’y Int’l Bus. 633, 654. (1995).
132 Recent trends in international law indicate that these principles would not apply when there is a human rights violation against the investor. See Rosalyn Higgins, Problems and Process: International Law and How We Use It 94 (1994); Rosalyn Higgins, The Taking of Property by the State: Recent Developments in International Law, in 176 Recueil des Cours 259–355 (1982).
133 The assurance should include a solemn undertaking by host countries that they will not abuse the process of law in order to prevent the specified forum from exercising jurisdiction. See generally Domenico Di Pietro & Martin Platte, Enforcement of International Arbitration Awards: The New York Convention of 1958 (2001).
134 See Comeaux & Kinsella, supra note 130, at 15–32. To prevent the host country from unilaterally changing the terms of a concession agreement or similar grant, the international arbitration clause would assure that any dispute arising in relation to the concession is settled before an international tribunal. This would provide investors with a neutral forum where they may best protect their rights and secure compliance of host countries’ obligations in the matter. At the same time, a stabilization clause is equally important since it prevents the state from imposing new laws on investors that would change the terms of the agreement and detrimentally affect the rights conferred by the agreement. A stabilization clause affirms the fact that the law in force in the state at a given date (usually, when the agreement takes effect) is the law that will apply to supplement the terms of the contract, regardless of future legislation, decrees, or regulations issued by the government. Therefore, the state alienates its right to unilaterally change the regime and rights as set forth in the agreement. See id. When an investor considers investing in a developing country that has a controversial track record on protecting private property, and the state’s domestic laws are less likely to give the investor protection under international law, investors may successfully protect their interests by inserting the above-described clauses in any negotiating contracts with the host country. However, this is not the only solution that investors have in order to reduce the risk faced when investing in developing countries. Ultimately, the investors may procure investment insurance, but there are costs attached to this course of action. See id. at 33.
135 The following provides an example of how the World Bank’s Multilateral Investment Guarantee Agency has provided a developing country with political risk insurance:
In its first project in Côte d’Ivoire, MIGA issued two guarantees totaling more than $16 million to Touton SA of France for its equity investment and shareholder loan to Touton Côte d’Ivoire. The project involve[d] the acquisition and rehabilitation of three cocoa plantations and the construction of a factory to clean and bag cocoa beans. Once the rehabilitation is complete, the plantations are expected to produce more cocoa per hectare than the national average, partly due to the use of high quality seedlings and plant sheltering techniques. In addition, each plantation would be equipped with modern fermentation, drying, and packaging units. MIGA insurance covers the investments against the risks of expropriation and war and civil disturbance.
World Bank Group, Multilateral Investment Guarantee Agency, Political Risk Insurance 1–2 (2000), available at http://www.miga.org/screens/pubs/factsheet/Sector. pdf (last visited Apr. 29, 2004).
136 See id. at 32–48. In a rapidly growing investment insurance market, private insurers (for example, Lloyd’s of London, American International Group, Citicorp International Trade Indemnity, Chubb Group, Pool d’Assurance des Risques Internationaux et Speciaux of Paris, etc.) started competing with government-subsidized insurance programs. Private insurance is, in some cases, more flexible (easily customized and can be kept in strict confidence), but government-sponsored insurance or MIGA has other advantages. For example, it is less expensive, has better facilities for covering currency inconvertibility risks, and can be issued for terms of up to twenty years. See id.
137 See generally Michael A. Geist, Toward a General Agreement on the Regulation of Foreign Direct Investment, 26 Law & Pol’y Int’l Bus. 673 (1995).
138 See World Trade Organization, Cancún WTO Ministerial: Briefing Notes, Dispute Settlement: Force of Argument, Not Argument of Force, at http://www.wto.org/english/
thewto_e/minist_e/min03_e/brief_e/brief13_e.htm (last visited Apr. 29, 2004).
139 See id.
140 While advocating the establishment of legal norms for transnational corporations (TNCs), developing countries have, in the past, been averse to similar norms for host countries. This has been an unfair and unrealistic approach. The new effort for a viable and widely acceptable regime should be built on lessons learned from past failures, both from attempts to adopt a binding code of conduct for TNCs and OECD’s initiative for a Multilateral Investment Agreement. A new multilateral convention is both desirable and possible, but it will have to be balanced, fair, and realistic.
141 To ensure that a multilateral treaty commands acceptance of a maximum number of states, it would be necessary to address such concerns felt by developed countries. Developing countries will be well advised to show greater flexibility with respect to subjects deemed important by industrial countries.
142 Monterrey Consensus, supra note 1, para. 22, at 6.
143 See Report on the G-24 Workshop, supra note 91, at 7–8.
144 Monterrey Consensus, supra note 1, para. 25, at 6.
145 Id. para. 26, at 7.
146 The case for free trade is too well known to require much amplification. Restrictions on flow of goods and services incontestably lead to distortion in allocation of resources and prevent maximization of welfare. Agricultural subsidies exceeded US$300 billion in 2000. See World Bank Group, Development, Trade and the WTO: A Handbook, at xxvii (Bernard M. Hoekman et al. eds., 2002).
147 See Wesley A. Cann, Jr., Creating Standards and Accountability for the Use of the WTO Security Exception: Reducing the Role of Power-Based Relations and Establishing a New Balance Between Sovereignty and Multilaterialism, 26 Yale J. Int’l L. 413, 423 (2001) (explaining that the 1982 Ministerial Declaration supported multilateralism but failed to establish any real obligations).
148 See Kevin C. Kennedy, Why Multilateralism Matters in Resolving Trade-Environment Disputes, 7 Widener L. Symp. J. 31, 68 (2001) (suggesting that, since multilateralism is rule-based, it will be helpful to developing countries because such nations need rules-based regimes to help resolve disputes with developed nations in a predictable and consistent manner).
149 See Sungjoon Cho, Breaking the Barrier Between Regionalism and Multilateralism: A New Perspective on Trade Regionalism, 42 Harv. Int’l L.J. 419, 421–22 (explaining that the global trading system requires a new paradigm that is capable of overcoming deficiencies and outdated elements of earlier trade agreements).
150 See Cann, supra note 147, at 418–19 (stating that the GATT was designed to improve international trade by creating arrangements that were reciprocal and mutually advantageous to the nations involved but concluding that the GATT’s true goal was to create additional global wealth).
151 See id. (detailing how the GATT/WTO sought to encourage free trade as a means to a more comprehensive end—that of increasing wealth on a global scale).
152 See John O. McGinnis, World Trade Agreements: Advancing the Interests of the Poorest of Poor, 34 Ind. L. Rev. 1361, 1362 (2001) (arguing that multilateralism is beneficial to poor and developing nations and acts as attractive bait to leaders of despotic regimes).
153 See Monterrey Consensus, supra note 1, para. 29, at 7.
154 See generally Ministerial Conference, 4th Sess., Ministerial Declaration, WT/MIN(01)/
DEC/1 (Nov. 20, 2001) (acknowledging the many areas that the Doha conference attempted to address) [hereinafter Doha Declaration].
155 Id. para. 1.
156 Id. (announcing the ideals of the declaration as agreed upon by the participants).
157 See A.V. Ganesan, Seattle and Beyond: Developing-Country Perspectives, in The WTO After Seattle 85 (Jefferey Schott ed., 2000) (stating that the central element to the developing countries’ strategy is now to gain access to markets and compete in the world marketplace).
158 See id. at 87 (arguing that increased flexibility in the application and definition of rules would help developing countries create plans that satisfy their particular needs). Critical implementation issues relate to textiles and clothing, anti-dumping, and the TRIPS Agreement, but developing countries were equally interested in the built-in agenda sectors of agriculture, services, and intellectual property. See World Trade Organization, Doha WTO Ministerial 2001: Briefing Notes, Implementation Issues Central to WTO Future Work Programme, at http://www.wto.org/english/thewto_e/minist_e/min01_e/brief_e/
brief07_e.htm (last visited Apr. 29, 2004) (stating that, for many developing nations, “capacity constraints have been a major obstacle to the full implementation of Uruguay Round agreements”).
159 Mr. Eugenio Diaz-Bonilla, a Senior Fellow at the International Food Policy Research Institute, addresses how trade liberalization affects the agricultural sector of developing countries in the short term. He discusses that the effects of trade liberalization are debated, with disagreement as to whether it causes or reduces hunger. Indeed, though calories per capita may have increased since the 1960s, needs are still not met for around twenty-five percent of the developing world, including sub-Saharan Africa and parts of Asia. Description to Global Dialogues on Sustainable Development Series: Food Security: The Impact of Climate Change and Trade Liberalization Part 1 (B-Span Video, Oct. 23, 2001), at http://
info.worldbank.org/etools/bspan/PresentationView.asp?PID=234&EID=121 (also pointing out that increases in food imports have been accompanied by increases in food exports).
160 See World Trade Organization, Doha WTO Ministerial 2001: Briefing Notes, Trade in Services: The Work Programme and the Current Negotiations, at http://www.wto.org/
english/thewto_e/minist_e/min01_e/brief_e/brief06_e.htm (last visited Apr. 29, 2004) (stating that the negotiating countries wanted to liberalize sections of the General Agreement on Trade in Services, including the annexes that cover the movement of natural persons who engage in services in another country).
161 See Like Minded Group Sets Out Positions Before Doha, BRIDGES Wkly. Trade News Dig., Jul. 10, 2001 (stating that developing countries believe that the problems and imbalances with private profits and public policies should be redressed along with certain technology transfer obligations).
162 See Ganesan, supra note 157, at 87 (noting that developing nations are concerned about including environmental and labor issues in the agenda).
163 World Trade Organization, Dispute Settlement, at http://www.wto.org/english/
tratop_e/dispu_e/dispu_e.htm (last visited Apr. 29, 2004) (noting that the dispute settlement deadline was extended from May 2003 to May 2004); World Trade Organization, How the Negotiations Are Organized, at http://www.wto.org/english/tratop_e/dda_e/
work_organi_e.htm (last visited Apr. 29, 2004).
164 See Doha Declaration, supra note 154, para. 2 (pledging that the Declaration seeks to protect the interests of the developing countries and, most importantly, the least developed countries around the world).
165 Monterrey Consensus, supra note 1, para. 26, at 7.
166 Id.
167 The difference in perspectives of industrial and developing countries on the implementation issue persists. Most of the developing countries probably would have preferred more definite and stronger language in the Declaration.
168 Description to Overview of the Current WTO Agricultural Negotiations (B-Span Video, Sept. 16, 2003), at http://info.worldbank.org/etools/bSPAN/presentationView.
asp?EID=452&PID=862.
169 Id.
170 Id.
171 Id.
172 Id. Josling’s view is that the negotiations will probably not be completed on time, partly because of the “lack of political will” and approaching elections that many countries face. He also states that the Cancún breakdown revealed, among other things, that “emphasis on a European Union-United States deal as key proved misleading, developing countries have become convinced that they can have an impact, and developed countries are still tied to domestic constituencies.” Id.
173 Monterrey Consensus, supra note 1, para. 41, at 9.
174 Id. para. 39, at 9.
175 Id.
176 Nicholas Stern, Trade, Aid and Results: Can We Make a Difference?, Address to the Annual Bank Conference on Development Economics in Europe (May 15, 2003), available at http://econ.worldbank.org/files/27367_Trade_Aid_and_Results-ABCDE_Europe_Speech.pdf (“In addition, the poverty-reduction effectiveness of ODA has grown rapidly as well. In 1990, another $1 billion allocated to ODA would have lifted 105,000 people permanently out of poverty; by 1997–98, the same increment would have lifted 284,000, a near tripling in aid ‘productivity.’ The Bank’s IDA funds are especially well-targeted towards poverty reduction. Even in 1990, more IDA funds went to countries with good policies ($4.7 per capita versus $2)—by the late 1990s, good-policy countries received 3 times as much per capita as counties with inadequate policies.”).
177 See Anne Boschini & Anders Olofsgård, Foreign Aid: An Instrument for Fighting Poverty or Communism? (2001), http://info.worldbank.org/etools/docs/vod-
docs/155/336/olofsgard.pdf.
178 Stern, Making the Case, supra note 111, at 17.
179 Organization for Economic Co-operation and Development, The DAC Journal, Development Co-operation Report: Efforts and Policies of the Members of the Development Assistance Committee 60 (2001).
180 See Ian Golden et al., World Bank, The Role and Effectiveness of Development Assistance: Lessons from World Bank Experience (2002), http://econ.world-
bank.org/files/13080_The_Role_and_Effectiveness_of_Development_Assistance.pdf (paper presented at the U.N. International Conference on Financing for Development, Monterrey, Mexico, Mar. 18–22, 2002).
181 See Elizabeth Lule, Resource Mobilization for NGOs, Presentation at the EuroNGOs Annual Meeting (Oct. 2–4, 2003).
182 Joseph E. Stiglitz, Two Principles for the Next Round or, How to Bring Developing Countries in from the Cold, in Developing Countries and the WTO: A Pro-Active Agenda 7 (2001) (citing the World Bank’s Statistical Information and Management Analysis database).
183 Id.
184 The most fruitful short-term result was the unofficial bidding contest between the United States and the European Union (EU) on to increase their ODA commitments. Before Monterrey, during a meeting in Barcelona, the EU countries committed themselves to reach an average ODA equivalent to 0.39% of national output by 2006, with individual countries reaching at least 0.33%—a commitment representing at least an extra $7 billion by 2006 and some $20 billion during 2000–2006 (total EU ODA was $25.4 billion during 2000). In what was considered an abrupt change in policy, U.S. President George W. Bush pledged to increase ODA by 50%, also by 2006, to $15 billion per year, with some of the extra funding becoming available within the next year. See Oxford Analytica Ltd., Brief on Monterrey Consensus (2004).
185 James D. Wolfensohn, President of the World Bank Group, states:
Current levels of aid [directed towards LDCs in Africa, for example], at 0.22 percent of annual GDP, fall far below the 0.7 percent target OECD countries pledged to meet. It is ironic that when African leaders are putting the right policies in place and showing results, overseas aid to Africa has fallen from $34 per person in 1990 to $18 per person in 1998. . . . [Meeting the 0.7 target] would make a difference [o]f $100 billion a year. It could make a profound difference in the number of people who die each year of preventable or treatable diseases. It is the right thing to do, for LDCs, for donor countries and for the world. Some advanced countries have met their ODA commitments of 0.7 percent of GDP; the rest must now step up and meet theirs
A New Compact to Meet the Challenge of Global Poverty, Speech at the Third United Nations Conference on the Least Developed Countries (May 14, 2001), at http://web.world-
bank.org/WBSITE/EXTERNAL/EXTABOUTUS/ORGANIZATION/PRESIDENTEXTERNAL/0,,contentMDK:20023997~menuPK:232083~pagePK:159837~piPK:159808~theSitePK:227
585,00.html.
186 See DevNews Media Center, Poverty, at http://web.worldbank.org/WBSITE/EXTER-
NAL/NEWS/0,,contentMDK:20040961~menuPK:34480~pagePK:34370~theSitePK:4607,00.html (last modified Mar. 2004).
187 See id.
188 Id.
189 Id.
190 See James D. Wolfensohn, Remarks at the Conference on Making Globalization Work for All, (Feb. 16, 2004), at http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/
0,,contentMDK:20169719~menuPK:34472~pagePK:34370~piPK:34424~theSitePK:4607,00.html (“A thousand billion dollars military expenditure, fifty billion dollars for hope.”).
191 Jeffrey D. Sachs, Les Echos, Les nantis devraient tenir parole, Mar. 11, 2002.
192 Forging the Monterrey Consensus, N.Y. Times, Mar. 24, 2002, § 4, at 14.
193 Monterrey Consensus, supra note 1, para. 42, at 9.
194 World Development Report 2004: Making Services Work for Poor People 203 (2003), http://econ.worldbank.org/wdr/wdr2004/text-30023/. The effectiveness of ODA can be also increased even more through untying. This process has already started, with the recent OECD agreement to untie all financial aid to the least developed countries. See Organization for Economic Co-operation and Development, Untying Aid to the Least Developed Countries: The OECD/DAC Recommendation, at http://www.oecd.org/
document/24/0,2340,en_2649_34643_2068440_1_1_1_1,00.html (last visited Apr. 29, 2004).
195 Ruben P. Mendez, Global taxation: The Rise, Decline and Future of an Idea at the United Nations 4 (Institut du développement durable et des relations internationales, Working Paper, 2002), http://www.iddri.org/iddri/telecharge/fiscalite/mendez.
pdf (quoting G.A. Res. 3362 (S-VII) of 16 September 1975).
196 Mahbub U. Haq, The Poverty Curtain: Choices for the Third World 204 (1976).
197 These countries suffer from an acute paucity of resources and thus cannot invest in infrastructure (to aid stimulation of growth) or in the social sector for human resource development. Inflow of concessional resources must be fairly long-term before these countries can stand on their own feet. World Bank Assessing Aid 44 (1998).
198 Seiichi Kondo, Statement at the International Conference on Financing for Development, Monterrey, Mexico (Mar. 18, 2002) at http://www.un.org/ffd/statements/oecdE.
htm (“Certainly money will be needed to turn the tide against poverty and achieve the goals of the Millennium Declaration, but good policies and sound institutions are equally important.”).
199 Janet Bush, Stability is the Key to a Third World Aid, Times (London), Nov. 11, 1998.
200 Monterrey Consensus, supra note 1, paras. 10–19, at 29–35.
201 Id. para. 42, at 44–48.
202 Stern, Making the Case, supra note 111, at 17.
203 Id.
204 Declaration on the Right to Development, G.A. Res. 41/128, 41st Sess., 97th plen. mtg., Supp. No. 53, Annex, Agenda Item 101, art. 1.1, U.N. Doc. A/RES/41/128 (1986).
205 Millennium Declaration, supra note 6, para. 11.
206 Id. para 6.
207 See discussion supra Part III.
208 Haque, supra note 47, at 421–422; see also Oscar Schacter, Towards a Theory of International Obligation, in The Effectiveness of International Decisions 30 (S. Schwebel ed., 1971).
209 Haque, supra note 47, at 421–422.
210 Monterrey Consensus, supra note 1, para. 48, at 11.
211 Id. para. 47, at 11.
212 See id. para. 15, at 4.
213 See id. para. 43, at 10.
214 See id. para. 51, at 12.
215 Monterrey Consensus, supra note 1, para. 51, at 12.
216 The HIPC initiative was proposed by the World Bank and IMF in 1996. It represents an important step in placing debt relief within an overall framework of poverty reduction. The HIPC approach, now improved and termed as Enhanced HIPC Debt Initiative, provides an opportunity to strengthen economic prospects and poverty reduction efforts in its beneficiary countries.
217 Intergovernmental Group of Twenty-Four on International Monetary Affairs and Development Communiqué, International Monetary Fund, para. 11, at 4 (Sept. 27, 2002), available at http://
www.imf.org/external/np/cm/2002/092702.htm [hereinafter Intergovernmental Group of Twenty-Four].
218 Id. (“While welcoming the steady progress being made in the implementation of the HIPC Initiative, Ministers reiterate their disappointment that only 6 out of 38 eligible countries have reached their completion point and that some creditors have not fully joined the process. Additional funding will be required to address HIPC-to-HIPC debt relief. Ministers are concerned that, owing to factors largely beyond their control, namely overly ambitious export and growth assumptions, falling commodity prices and the global slowdown, many HIPCs are likely to have debt ratios in excess of the HIPC Initiative threshold at the completion point. In this context, Ministers stress the need to secure additional resources for topping-up debt relief and to streamline conditions and retain more realistic projections associated with debt relief.”)
219 Id.
220 Monterrey Consensus, supra note 1, para. 60, at 14.
221 See generally Anne Krueger, International Monetary Fund, A New Approach to Sovereign Debt Restructuring 1–5 (2002), available at http://www.imf.org/exter-
nal/pubs/ft/exrp/sdrm/eng/sdrm.pdf.
222 International Monetary Fund, Annual Report 2002, at 35, box 3.4 (2002).
223 See Krueger, supra note 221, at 1–5.
224 See Montek S. Ahluwalia, The IMF and the World Bank in the New Financial Architecture, in International Monetary and Financial Issues for the 1990s (1999).
225 Anne Krueger, International Financial Architecture for 2002: A New Approach to Sovereign Debt Restructuring, Address at the National Economists’ Club Annual Members’ Dinner (Nov. 26, 2001), available at http://www.imf.org/external/np/speeches/2001/
112601.HTM. However, the idea of a bankruptcy court for sovereign entities was not heard for the first time on that occasion. In the spring of 1997, the General Counsel of the International Monetary Fund, François Gianviti, expressed his own personal view on the matter in a truly visionary way. As a remedy to the sovereign debt, he suggested the establishment of a bankruptcy court for sovereign debtors’ external debt, which would determine what payments could be made to each creditor or category of creditors, probably with some rescheduling or even partial debt forgiveness. See François Gianviti, The IMF and the Liberalization of Capital Markets, 19 Hous. J. Int’l L. 773, 773–83 (1997).
226 Krueger, supra note 221, at 10–11.
227 Id. at 35.
228 The new model envisages that the process will mainly be a legal one, but its implementation and overall recognition will undoubtedly be the result of a political compromise and involve a lot of international diplomacy and political consensus. At the same time, as all the literature on globalization unanimously argues, the concept of sovereignty has been reshaped in practice if not in theory in the contemporary world. The states should acknowledge (or could only accept) the “new definitions” of the old terms. If a new court of bankruptcy for sovereign entities is an anathema to the classical concept of “sovereignty” usually proclaimed rather vociferously by developing countries, then these countries should now recognize that the concept has changed in many other respects, and that the new approach is designed to offer a solution to the same states, while it might seem very unattractive to their creditors. However, in the doctrine it has been opined that no country is likely to go down this path unless absolutely has to. See generally Krueger, supra note 221.
229 See generally Communiqué of the International Monetary and Financial Committee of the Board of Governors of the International Monetary Fund, International Monetary Fund (Sept. 28, 2002).
230 Communiqué of the International Monetary and Financial Committee of the Board of Governors of the International Monetary Fund, International Monetary Fund, para. 15 (Apr. 12, 2003), available at http://www.imf.org/external/np/cm/2003/041203.htm.
231 See Review of the Inputs to the Substantive Preparatory Process and the International Conference on Financing for Development, Note by the Secretary-General, Preparatory Committee for the International Conference on Financing for Development, 3d Sess., Agenda Item 2, pt. 2, U.N. Doc. A/AC.257/xx (2002), available at http://www.un.org/esa/ffd/aac257_27a3.pdf.
232 There is no seabed mining at present and there is a provision to tax this activity under the Law of the Sea Convention.
233 Mining in Antarctica is prohibited at present.
234 The satellite use of the outer space would not, however, generate substantial revenue.
235 This is unlikely to generate substantial revenue.
236 The difficulty would arise because these are generally regarded as national matters, which makes them a normal source of domestic revenue.
237 Governments must agree on “taxing themselves,” meaning that since governments usually tax their citizens and not themselves, with these many innovative forms of taxation, governments will need to be willing to pay taxes themselves on oil, minerals, and pollution when it is not caused by a private company. As regards taxing imports or exports of arms, illegal transactions should be left untaxed. If taxed, such transactions would probably yield a considerable amount of money, but to do so would be both immoral and impracticable. Furthermore, it has been said that such a tax would contribute to increasing the illegal transfer of arms, having the opposite effect than the one desired.
238 See Raghbendra Jha, Innovative Sources of Development Finance: Global Cooperation in the Twenty-First Century 1, 13 (United Nations Univ., World Inst. for Dev. Econ. Research, Discussion Paper No. 2002/98, 2002) (“The base of th[e] [e-mail/Internet taxes (the bit tax)] is the amount of data being sent through the Internet. According to one proposal, a person sending 100 emails per day with a 10-kilobyte document would pay a tax of just one cent.”). Experts have calculated that, for example, Internet data traffic would have generated US$70 billion in 1996. Id. With the rapid expansion of the Internet, imposing such a tax would be very difficult from a technical point of view.
239 The difficulty related to this form of taxation comes from the fact that these are national arrangements that do not require international agreements for effective operation and that have been in operation for centuries, which makes them hardly innovative.
240 See Tony Atkinson, Innovative Sources for Development Finance: Global Public Economics, Speech Given at the Annual Bank Conference on Development Economics in Europe (May 16, 2003) (discussing the possibility of taxing, for example, short-term capital and currency flows (“Tobin tax”) and global environmental taxes (carbon-use tax or air transport tax)).
241 Monterrey Consensus, supra note 1, para. 52, at 12.
242 Millennium Declaration, supra note 6, para. 6.
243 Id. para. 30.
244 Id. para. 13.
245 Monterrey Consensus, supra note 1, paras. 54–56, 59, at 13.
246 Id. para. 62, at 14.
247 Id. para 63, at 14.
248 See World Bank Group, Voting Powers, at http://web.worldbank.org/WB SITE/EX-
TERNAL/EXTABOUTUS/0,,contentMDK:50004947~menuPK:271153~pagePK:34542~piPK:
329829~theSitePK:29708,00.html (last visited Apr. 29, 2004) (“Like all corporate organizations, each of the agencies of the World Bank Group has shareholders; these are the member countries. Every shareholder is allocated a certain number of votes linked to the size of its shareholding. The votes include a specified number of membership votes (which is the same for all members) and additional votes based on the number of shares of the stock held. The number of votes of a member expressed as a percentage of the total number of votes held by all shareholders is the member’s voting power.”).
Similarly, the Executive Board of the IMF conducts the IMF’s day-to-day business. It is composed of twenty-four Directors (appointed or elected by member countries or by groups of countries) and the Managing Director (its Chairman). The quota shares owned by a country determines the number of votes it may cast. For example, the United States owns 17.14% of the Fund and has 371,743 votes whereas Japan owns 6.15% of the Fund and has 133,378 votes. See International Monetary Fund, IMF Executive Directors and Voting Power, at http://www.imf.org/external/np/sec/memdir/eds.htm (last modified Apr. 16, 2004).
249 Transcript of an IMF Economic Forum, Do Developing Countries Have a Say at the IMF? (Feb. 5, 2004) (forum between Ariel Buira, Director of the G-24 Secretariat, Carol Welch, Director of International Programs, Friends of the Earth, & Thomas Dawson, Director of External Relations of the IMF), at http://www.imf.org/external/np/tr/2004/
tr040205.htm (“The Bretton Woods formula is still in use, with variations in weights given to these variables. It’s combined with four other formulas that use the same variables and give them somewhat different weights. There have been some changes. Instead of gross national income, now you use GDP, but very small adjustments.”).
250 Id. Initial discussion at Bretton Woods focused on “whether every state should have the same vote because of the legal principle of equality of states or . . . whether power should be determined by contributions.” Id. The decision was made that every state should be given 250 basic votes and that each state would get an additional vote for each US$100,000 contributed. Today, the number of basis votes allotted is “irrelevant . . . [since] decisions are essentially based on quotas.” Id. In addition, though the Bretton Woods formula is still used, it is merged with other formulas, and discretion is also a factor. The use of discretion is apparent, for example, when certain countries are compared to one another:
Canada and China have exactly the same quota. The Chinese quota was increased after the incorporation of Hong Kong to be exactly the same size as Canada’s . . . . [Note, however, that] China is a much bigger economy than Canada.
Now compare Netherlands, Belgium, and Switzerland, whose quotas are all bigger than Brazil’s and Mexico’s. But Brazil and Mexico are much bigger than the Netherlands, Belgium, and Switzerland . . . . Another amazing example: Belgium has a 74-percent bigger quota than Mexico, but Mexico’s foreign trade alone is bigger than Belgium’s GDP.
Id. This formula also gives Denmark a bigger quota than Korea despite Korea’s status as larger, more important economy. The most prominent comparison shows that the European quotas are larger than those in Asia, even though Asia’s purchasing power parity is 21.5% and Europe weighs in at below 3%. Id.
251 Intergovernmental Group of Twenty-Four, supra note 217, para. 17, at 6.
252 Id. para. 17 at 6.
253 Id.
254 See Programme of Action on the Establishment of a New International Economic Order, U.N. GAOR, 6th Special Sess., Supp. No. 1, at 5, U.N. Doc. A/Res/3202(S-VI) (1974).
255 See Charter of Economic Rights and Duties of States, U.N. GAOR, 29th Sess., Supp. No. 31, at 50, U.N. Doc. A/Res/3281(XXIX) (1974).
256 See Andrés Velasco, Dependency Theory, Foreign Pol’y, Oct.–Nov. 2002, at 44–45. Velasco argues that this has happened due to a variety of factors; for example, with the passage of time, anti-globalization sentiments weakened. Dependency doctrines and theories (both in radical and milder versions) were not proved valid in real life. Successors to first generation leaders in the Third World also became more pragmatic. Above all, the Third World discovered the futility of taking on industrial countries.