* Professor of Law and Director, International Legal Studies Program, American University, Washington College of Law, Washington D.C., bradlow@wcl.american.edu. The author wishes to thank Maki Tanaka for her research assistance.
1 See, e.g., Daniel D. Bradlow, The World Commission on Dams’ Contribution to the Broader Debate on Development Decision-Making, 16 Am. U. Int’l L. Rev. 1531, 1532–35 (2001) [hereinafter Bradlow, Dams Debate] (discussing the positions taken by the different sides in the debates over dams and over globalization).
2 See Ted C. Lewellen, Dependency and Development: An Introduction to the Third World 60 (1995) (explaining that in the 1940s, economists from the United Nations Economic Commission for Latin America developed dependency theory to explain underdevelopment, which they saw as being caused by unequal international economic exchanges).
3 See, e.g., Samuel K.B. Asante, The Concept of Stability in Contractual Relations in the Transnational Investment Process, in Legal Aspects of the New International Economic Order 234, 244 (Kamal Hossain ed., 1980) [hereinafter Legal Aspects] (noting that newly independent countries could not repudiate unfavorable agreements immediately upon political independence because of traditional doctrines such as pacta sunt servanda, sanctity of contract, acquired rights, and state succession).
4 See, e.g., M. Sornarajah, The International Law of Foreign Investment 348–49 (1994) (explaining that foreign investors attempted to “internationalize” transnational investment agreements so that international legal doctrines like pacta sunt servanda and minimum standards in the treatment of foreign investors would be applicable to their transactions).
5 See, e.g., Asante, supra note 3, at 242 (arguing that the application of the doctrine of pacta sunt servanda to transnational investment agreements should be effectively limited by the doctrine of clausula rebus sic stantibus under public international law).
6 Declaration on the Permanent Sovereignty over Natural Resources, G.A. Res. 1803, U.N. GAOR, 17th Sess., Supp. No. 17, at 15, U.N. Doc. A/5217 (1962); see also F.V. Garcia-Amador, The Emerging International Law of Development: A New Dimension of International Economic Law 132–40 (1990) (describing the evolution of the doctrine of permanent sovereignty over natural resources).
7 See, e.g., Kuwait v. Am. Indep. Oil. Co., 21 I.L.M. 976, 1023 (Arb. Trib. 1982) (holding that stability clauses did not absolutely prohibit nationalization and that states may nationalize foreign-owned property with payment of appropriate compensation); Saudi Arabia v. Aramco, 27 I.L.R. 117, 171–72 (Arb. Trib. 1958) (interpreting the concession agreements under Saudi Arabian law and using public international law to fill the gaps in the Saudi Arabian law); Nico Schrijver, Permanent Sovereignty over Natural Resources: Balancing Rights and Duties 175 (1997) (discussing concession agreements involving natural resources in Iran and Dubai); Sornarajah, supra note 4, at 339–40 (explaining that the host country’s law is generally regarded as applicable to the concession agreements in oil concession arbitrations).
8 Sornarajah, supra note 4, at 402–14 (discussing capital importing country approaches to compensation for expropriated property).
9 General Agreement on Tariffs and Trade, Oct. 30, 1947, pt. IV, 61 Stat. A-11, T.I.A.S. 1700, 55 U.N.T.S. 194 [hereinafter GATT].
10 See Kamal Hossain et al., Introduction to Legal Aspects, supra note 3, at 1. Developing countries had articulated grievances with the prevailing economic order and attempted to shape a new economic order since the 1950s. See id. The first attempt to introduce a new economic order was made in 1952, when Chile raised this issue in terms of permanent sovereignty over natural resources in discussions relating to the Draft International Covenant on Human Rights. See Milan Bulajic, Legal Aspects of a New International Economic Order, in Legal Aspects, supra note 3, at 45–46. Developing countries formally called for “a new international economic order” at the Non-Aligned Summit in 1973. See Hossain et al., supra, at 1.
11 See, e.g., Ravi Gulhati, Economic Development Institute, The Political Economy of Reform in Sub-Saharan Africa: Report of the Workshops on the Political Economy of Structural Adjustment and the Sustainability of Reform 3–4 (1986) (identifying “policy and institutional distortions” as one of the crucial factors in the African economic crisis); World Bank, Sub-Saharan Africa: From Crisis to Sustainable Growth 30 (1989) (discussing “deteriorating governance” as a factor behind the African economic decline).
12 See, e.g., International Development Strategy for the Third United Nations Development Decade, G.A. Res. 35/56, U.N. GAOR, 35th Sess., Supp. No. 48, pmbl. para. 2, U.N. Doc. A35/48 (1981) [hereinafter International Development Strategy] (recognizing imbalances and inequities between developed and developing countries in the present system of international economic relations and seeking to restructure the existing international economic order); Charter of Economic Rights and Duties of States, G.A. Res. 3281, U.N. GAOR, 29th Sess., Supp. No. 31, pmbl., at 51, U.N. Doc. A/9631 (1975) [hereinafter U.N. Economic Charter] (calling for the establishment of a NIEO designed to remove major hurdles to economic development in developing countries); Declaration on the Establishment of a New International Economic Order, G.A. Res. 3201, U.N. GAOR, 6th Spec. Sess., Supp. No. 1, at 3, U.N. Doc. A/9559 (1974) [hereinafter U.N. Declaration on NIEO] (stating that Member States “shall correct inequalities and redress existing injustices” and “make it possible to eliminate the widening gap between the developed and the developing countries”).
13 See, e.g., World Bank, supra note 11, at 23–30.
14 See, e.g., James Weaver & Kenneth Jameson, Economic Development: Competing Paradigms 7–11 (1981). In conventional neoclassical models, human welfare is measured by increases in consumption of goods and services. Id. Accordingly, the conventional literature on development economics focuses on removing barriers to economic growth. See, e.g., Pierre-Richard Ag�nor & Peter J. Montiel, Development Macroeconomics 3 (1996). This was reflected in international discourses regarding development. In 1961, the United Nations General Assembly adopted an economic growth rate of five percent in national income as a target for developing countries. United Nations Development Decade: A Programme for International Economic Co-operation (I), G.A. Res. 1710, U.N. GAOR 2d Comm., 16th. Sess., 1084th plen. mtg. � 1 (1961). The Pearson Report noted that some had reached and even exceeded the target. Lester B. Pearson et al., Partners in Development 28 (1970).
15 This means that a key area of disagreement is the definition of the appropriate legal and other relationships between the following four groups of actors in development decision-making:
See Bradlow, Dams Debate, supra note 1, at 1532–35.
16 Many observers would consider that another key issue for developing countries is the existing arrangements for the governance of the international economic order. Since this issue relates primarily to the structure and functions of the international economic organizations and forums, it can be viewed more as a problem of international organizations than of IDL. Therefore, it is treated as outside the scope of this Article. For more information on this issue, see Daniel D. Bradlow, Critical Issues Facing the Bretton Woods System: The World Bank, the IMF, and Human Rights, 6 Transnat’l L. & Contemp. Probs. 47 (1996); Daniel D. Bradlow, Should the International Financial Institutions Play a Role in the Implementation and Enforcement of International Humanitarian Law?, 50 U. Kan. L. Rev. 695 (2002); Daniel D. Bradlow, Stuffing New Wine Into Old Bottles: The Troubling Case of the IMF, 3 J. of Int’l Banking Reg. 9 (2001); Daniel D. Bradlow, “The Times They Are A-Changin”: Some Preliminary Thoughts on Developing Countries, NGOs and the Reform of the WTO, 33 Geo. Wash. Int’l L. Rev. 503 (2001); Claudio Grossman & Daniel D. Bradlow, Are We Being Propelled Towards a People-Centered Transnational Legal Order?, 9 Am. U. J. Int’l L. & Pol’y 1 (1993).
17 See generally Warren C. Baum & Stokes M. Tolbert, Investing in Development: Lessons of World Bank Experience 418–68 (1985) (discussing factors to be considered in project cost-benefit analysis).
18 This view is reflected in a number of official documents. See, e.g., Articles of Agreement of the International Bank for Reconstruction and Development, July 22, 1944, art. IV, � 10, 60 Stat. 1440 (“The Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member or members concerned.”), available at http://www.worldbank.org; Organization for Economic Co-operation and Development, The OECD Guidelines for Multinational Enterprises, art. II, para. 11 (2000), available at http://www.oecd.org/
dataoecd/56/36/1922428.pdf (advising multinational enterprises to “[a]bstain from any improper involvement in local political activities.”) [hereinafter OECD Guidelines].
19 See Harry G. Henn & John R. Alexander, Laws of Corporations 717–43 (3d ed. 1983) (describing the management structure of corporations and noting that the board of directors’ primary obligation is to the corporation’s shareholders).
20 See, e.g., Sornarajah, supra note 4, at 151–62 (explaining that the territoriality principle provides the basis for the host state’s jurisdiction over foreign investors).
21 See F.V. Garcia-Amador, supra note 6, at 35–36 (identifying two basic elements of IDL as being the states’ duties and responsibilities to cooperate for development and rights in development, including preferential treatments in trade and development assistance); Asif H. Qureshi, International Economic Law 338 (1999) (noting that IDL deals with an area of international economic law that can be a matter of controversy between developing and developed countries).
22 See, e.g., World Bank, supra note 11, at 23–30. See generally Garcia-Amador, supra note 6.
23 See Grossman & Bradlow, supra note 16, at 12–14.
24 Examples of obligations that wealthier countries have voluntarily assumed with respect to poorer countries are generalized systems of preferences and foreign aid programs, such as the U.S. GSP Program and the Millennium Challenge Account. See also Garcia-Amador, supra note 6.
25 For a discussion of opposing views on NIEO, see generally Legal Aspects, supra note 3.
26 See generally Ian Brownlie, Principles of Public International Law (4th ed. 1990) (identifying the principles of the sovereignty and equality of states as the fundamental doctrine of the law of nations).
27 See Bulajic, supra note 10, at 262–63 (noting that the right to economic self-determination and permanent sovereignty over natural resources is regarded as fundamental in international law and that the principle of sovereign equality in states’ economic relations emanates from and is applied to the right to self-determination without controversy); see also sources cited supra note 6 (referring to the Declaration on the Permanent Sovereignty over Natural Resources and its evolution from the principle of self-determination).
28 See Report of the Secretariat on the Outstanding Issues in the Draft Code of Conduct on Transnational Corporations, U.N. Commission on Transnational Corporations, U.N. Doc E/C.10/1984/S/5 (1984), reprinted in 23 I.L.M. 602 (1984) [hereinafter UNCTC Report] (reporting that proponents considered the principle of permanent sovereignty over natural resources and economic activities well-recognized in international law and U.N. resolutions); Elsa Kelly, ‘National Treatment’ and the Formulation of a Code of Conduct for Transnational Corporations, in Legal Aspects, supra note 3, at 148–52 (examining developing countries’ attempt to ensure states’ power over transnational corporations, including “full exercise by the host country of its permanent sovereignty over all its wealth, natural resources and economic activities”).
29 See UNCTC Report, supra note 28 (stating that some States insisted on including a reference to international law in paragraph 6 of the Draft Code on Transnational Corporations to qualify the States’ sovereign power over foreign investors).
30 See also Sornarajah, supra note 4, at 402–14; S.R. Chowdhury, Legal Aspects of the Charter of Economic Rights and Duties of States, in Legal Aspects, supra note 3, at 88 (discussing developing countries’ rejections of independent international tribunals to resolve investment disputes); Kelly, supra note 28, at 143–44 (explaining that, from the perspective of developing countries, Article 2.2 of the U.N. Economic Charter is regarded as upholding a principle of appropriate compensation under the domestic law of the expropriating state).
31 The opponents’ position is reflected, for example, in the following provisions of the OECD Guidelines: (1) “Governments have the right to prescribe the conditions under which multinational enterprises operate within their jurisdictions, subject to international law.” OECD Guidelines, supra note 18, art I. �7, and (2) “Governments adhering to the Guidelines set them forth with the understanding that they will fulfil [sic] their responsibilities to treat enterprises equitably and in accordance with international law and with their contractual obligations,” id. art. I � 8. See also Bulajic, supra note 10, at 230–31 (noting opponents’ adherence to certain minimum international standards in treating foreign investors and their properties).
32 See, e.g., Sornarajah, supra note 4.
33 See generally Brownlie, supra note 26; Grossman & Bradlow, supra note 16, at 1 (stating that international law has traditionally viewed states as co-equal autonomous actors); see also OECD, Declaration by the Governments of OECD Member Countries and Decisions of the OECD Council on International Investment and Multinational Enterprises, in International Investment � II.1 (rev. ed. 1984) (declaring that Member States should give another Member State or its nationals “national treatment,” which is “consistent with international law and no less favorable than that accorded in like situations to domestic enterprises”). The Declaration further states “[t]hat Member countries will consider applying “national treatment” in respect of countries other than Member countries.” Id. � II.2.
34 See Hossain et al., supra note 10, at 5–6 (stating that in NIEO instruments, developing countries attempt to seek legal protection from coercive forces and affirmative action to remedy prior disadvantageous conditions); Kelly, supra note 28, at 150 (explaining that from developing countries’ standpoint, states may give preferential treatment to their nationals in seeking to achieve certain national economic and developmental goals).
35 See generally sources cited supra notes 20–21.
36 See generally Bradlow, Dams Debate, supra note 1 and sources cited therein (discussing multidimensionality of development in the modern view).
37 See, e.g., Raymond F. Mikesell & Larry Williams, International Banks and the Environment (1992) (discussing several case studies in which poor assessments of projects costs have resulted in excessive environmental costs).
38 A third important factor is improvement in information and communication technology. This technology enables business, investors, and NGOs around the world to quickly learn about and react to developments around the world. See, e.g., Grossman & Bradlow, supra note 16, at 11. This factor receives less attention in this Article because, to date, it has had less direct impact on IDL than the other two.
39 See David Hunter et al., International Environmental Law and Policy, at v–vi (1998) (noting that “human economic activity threatens to surpass the ecological limits of the biosphere (if it has not already done so in certain instances)”).
40 See generally Guide to International Human Rights (Hurst Hannum ed., 3d ed. 1999) (describing the different international forums in which human rights cases are addressed).
41 See generally Jackson B. Battle et al., Environmental Decisionmaking: NEPA and the Endangered Species Act (2d ed. 1994) (describing the need for adequate information and consultation in environmental decision-making).
42 See, e.g., World Bank, The World Bank Participation Sourcebook 3–4 (1996), available at http://www.worldbank.org/wbi/sourcebook/sbhome.htm. The Bank currently advocates stakeholder participation that involves all parties concerned, such as the poor and socially disadvantaged, NGOs, private sector organizations, local and national government officials, and Bank staff. See id. at 6–7. For examples of participatory development, see id. at 17–120 (reviewing development projects with participatory approaches in fifteen countries).
43 Declaration on the Right to Development, G.A. Res. 41/128, U.N. GAOR, 41st Sess., Supp. No. 53, at 186, U.N. Doc. A/41/128 (1986) (“All human beings have a responsibility for development, individually and collectively, taking into account the need for full respect for their human rights and fundamental freedoms as well as their duties to the community.”).
44 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948).
45 Convention on the Rights of the Child, Nov. 20, 1989, 28 I.L.M. 1456 [hereinafter CRC]; Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature Mar. 1, 1980, 19 I.L.M. 33 (1980) [hereinafter CEDAW]; International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3; International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195; see also Vienna Declaration and Programme of Action, U.N. World Conference on Human Rights, U.N. Doc. A/CONF.157/24, pt. 1 (1993), reprinted in 32 I.L.M. 1661 (1993).
46 Declaration of the U.N. Conference on the Human Environment, June 16, 1972, U.N. Doc. A/Conf. 48/14, reprinted in 11 I.L.M. 1416 (1972).
47 Rio Declaration on Environment and Development, June 14, 1992, U.N. Conference on Environment and Development, Doc. A/CONF.151/5/Rev. 1, reprinted in 31 I.L.M. 874 (1992) [hereinafter Rio Declaration].
48 United Nations Framework Convention on Climate Change, May 9, 1992, 31 I.L.M. 849 (1992) [hereinafter Climate Change Convention]; Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818 (1992) [hereinafter Biodiversity Convention].
49 See, e.g., OECD Guidelines, supra note 18.
50 See, e.g., Bradlow, Dams Debate, supra note 1.
51 See generally International Economic Law with a Human Rights Face (Friedl Weiss et al. eds., 1998) [hereinafter IEL with a Human Rights Face].
52 See Declaration on the Right to Development, supra note 43, art. 6.1 (stipulating States’ duty to cooperate in promoting universal human rights “without any distinction as to race, sex, language or religion”). There are specific U.N. conventions that cover human rights of women, see generally CEDAW, supra note 45, and children, see generally CRC, supra note 45. The U.N. Commission on Human Rights has also created a Draft United Nations Declaration on The Rights of Indigenous Peoples, 34 I.L.M. 541, 546 (1995). For child labor, see International Labor Organization Convention Concerning the Prohibition and Immediate Elimination of the Worst Forms of Child Labor, June 17, 1999, 38 I.L.M. 1207. In addition to these formal efforts, international civil society has reacted to business practices that fail to incorporate human rights considerations. See, e.g., Peter Malanczuk, Globalization and the Future Role of Sovereign States, in IEL with a Human Rights Face, supra note 51, at 58–59 (giving examples of international protests against Shell for disregard of human rights of minority rights activists in Nigeria and against Nike for unfair labor practices including use of child labor in developing countries); see also Grossman & Bradlow, supra note 16, at 3 (explaining that the United Nations’ recognition of protection of human rights as an international obligation provides the basis of international organizational supervision over human rights).
53 In 1992, in reaction to strong international criticism against the Sardar Sarovar project, the World Bank conducted a review and imposed conditionality on the remaining loan to ensure adequate resettlement and economic rehabilitation of the affected people and environmental protection. In 1993, the Bank formally canceled the remaining loan. See World Bank, Operations Evaluation Dep’t, Learning from Narmada, Precis No. 88, at http://wbln0018.worldbank.org/oed/oeddoclib.nsf/e90210f184a4481b85256885007b1724/12a795722ea20f6e852567f5005d8933 (May 1, 1995). For a detailed review of the Sardar Sarovar Dam project, see Bradford Morse & Thomas R. Berger, Sardar Sarovar: The Report of the Independent Review (1992).
54 The export credit agencies of developed countries refused to give export credit support unless Turkey satisfied four conditions designed to address international concerns about the project’s adverse impacts on human rights and the environment. See J. McCrystie Adams, Comment, Environmental and Human Rights Objections Stall Turkey’s Proposed Ilisu Dam, 2000 Colo. J. Int’l Envtl. L. & Pol’y 173, 175–76 (2001). The conditions include the creation of an internationally acceptable resettlement plan, the establishment of an upstream water treatment plant, the maintenance of downstream water flow, and the protection of archeological sites. See id. at 176.
55 See, e.g., Pol’y Dev. & Rev. Dep’t, Int’l Monetary Fund, Review of the Fund’s Experience in Governance Issues 5–9 (2001) (explaining that IMF regards good governance as an important condition to effectively attain the objectives of IMF-supported projects and promotes it through prior consultations with states seeking assistance), available at http://www.imf.org/external/np/gov/2001/eng/gov.pdf. For details of World Bank’s strategies regarding good governance through development assistance, see e.g., Poverty Reduction & Econ. Mgmt. Network, Pub. Sector Group, World Bank, Reforming Public Institutions and Strengthening Governance (2000), available at http://www1.
worldbank.org/publicsector/civilservice/Reforming.pdf; see also Friedl Weiss, Internationally Recognized Labour Standards and Trade, in IEL with a Human Rights Face supra note 51, at 79–81 (identifying the use of trade sanctions against states that fail to protect labor rights as a key issue in debates on international trade and labor standards).
56 See Rio Declaration, supra note 47, princ. 4 (“In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”); U.N. Conference on Environment and Development, Agenda 21, � 23, U.N. Doc. A/Conf. 151/26 (1992) (“Economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development.”).
57 See Gerhard Loibl, The World Bank Group and Sustainable Development, in IEL with a Human Rights Face, supra note 51, at 513, 520–26 (discussing the Bank’s operational policies and procedures relevant to environmental protection and sustainable development). For a comprehensive list of Bank’s operational policies, see World Bank, Operational Manual, Table of Contents, http://wbln0018.worldbank.org/institutional/
manuals/opmanual.nsf (last visited Apr. 16, 2004).
58 For a list of relevant guidelines, see International Finance Corporation, Environmental, Health and Safety Guidelines, at http://www.ifc.org/ifcext/enviro.nsf/content/
EnvironmentalGuidelines (last visited Apr. 16, 2004). Projects supported by IFC are also subject to relevant parts of the Bank’s Operational Manuals. See International Finance Corporation, Safeguard Policies (listing relevant Bank operational policies), at http://
ifcln1.ifc.org/ifcext/enviro.nsf/Content/Safeguardpolicies (last visited Apr. 16, 2004).
59 ISO introduced a series of quality management standards (ISO 9000). See International Organization for Standardization, ISO 9000 and ISO 14000 in Plain Language, at http://www.iso.org/iso/en/iso9000-14000/basics/general/basics_4.html (last visited Apr. 16, 2004). ISO has created a series of environmental management standards (ISO 14000) to address the following issues: environmental management systems, environmental auditing and related investigations, environmental labels and declarations, environmental performance evaluation, and life cycle assessment. See ISO, Technical Committee 207, What is ISO 14000?, at http://www.tc207.org/faq.asp?Question=2 (last visited Apr. 16, 2004).
60 See, e.g., Levi Strauss & Co., Social Responsibility/Global Sourcing & Operating Guidelines, at http://www.levistrauss.com/responsibility/conduct/guidelines.htm (last visited Apr. 16, 2004) (outlining the corporate guidelines that take account of environment, labor, and human rights issues in business partners and the host country); Nike, Compliance: Code of Conduct, at http://www.nike.com/nikebiz/nikebiz.jhtml?page=25
&cat=compliance&subcat=code.shtml (last updated Jan. 2004) (establishing minimum age limits for workers in its footwear (18 years) and apparel, accessories, and equipment businesses (16 years)); Shell Oil Co., Our Policy and Principles, at http://www.counton
shell.com/welcome/policies/policies.html (last visited Apr. 16, 2004) (providing information on Shell’s corporate policy regarding business principles, health and environment, and sustainable development).
61 Good examples of sectors where the regulatory framework has been effectively globalized are the hydro sector and the mining sector. See, e.g., World Commission on Dams, Dams and Development: A New Framework for Decision-Making (2000) http://www.
dams.org//docs/report/wcdreport.pdf.
62 See Oscar Schachter, The Erosion of State Authority and Its Implications for Equitable Development, in IEL With A Human Rights Face, supra note 46, at 31, 43–44 (concluding that the present state-based structure still constitutes the general framework of governance in international relations but noting increasing influence of non-state actors); see also Rio Declaration, supra note 47, princ. 2 (“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources . . . .”); Climate Change Convention, supra note 48, pmbl. (“[r]eaffirming the principle of sovereignty of States in international cooperation to address climate change”).
63 See Grossman & Bradlow, supra note 16, at 12–14 (explaining that advances in information technology have enabled non-governmental actors to share information and spread activities across borders and thus undermine states’ authority to regulate and sanction their activities).