LOYOLA OF LOS ANGELES

INTERNATIONAL AND COMPARATIVE

LAW REVIEW

Volume 33

2010–2011

BOARD OF EDITORS

KIRSTIN ERICSON

Editor-in-Chief

RACHEL APPLETON

Managing Editor

JAYNE J. KUM

Executive Editor

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Jinny Lee

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Senior Research Editor

MIN CHOI

TIN LE

SORAE LEE

ANNA NOVRUZYAN

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MARK SWIRT

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MEGAN FELKER

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VIVIANNE SHANDS

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Research Editors

STAFF

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ARTAK BARSEGYAN

STEPHANIE CHAN

CATHY CHANG

ALLISON CHUA

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STACY FOSTER

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JOANNA FURMANSKA

VALERIE GALLO

ERIKA GREEN

ANNA H. KIM

EMERSON KIM

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STEPHANIE G. LEE

ASSAF LICHTASH

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SERAFIN TAGARAO

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JOELLE TROWBRIDGE

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LAURA YBARRA

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DAVID GLAZIER

CESARE ROMANO

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LOYOLA LAW SCHOOL LOS ANGELES

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THE ADMINISTRATION

DAVID W. BURCHAM, B.A., M.A., J.D.

President, Loyola Marymount University and Professor of Law

VICTOR J. GOLD, B.A., J.D.

Fritz B. Burns Dean and Professor of Law; Senior Vice President, Loyola Marymount University

DEBRA J. MARTIN, B.S.

Associate Dean for Finance and Administration

SEAN M. SCOTT, B.A., J.D.

Associate Dean for Faculty and Professor of Law

MICHAEL E. WATERSTONE, B.A., J.D.

Associate Dean for Research and Academic Centers, Professor of Law and J. Howard Ziemann Fellow

JEAN BOYLAN, B.S., J.D.

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MICHIKO M. YAMAMOTO, B.A.

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JOHN HOYT, B.A., M.B.A.

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JANNELL D. ROBERTS, B.A., M.A.

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GRAHAM SHERR, B.A., J.D.

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KENNETH J. OTT, B.A., M.F.A.

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CHRISTIAN W. BUTZEN, B.A.

Registrar

THE FACULTY OF LAW

ELLEN P. APRILL, B.A., M.A., C.PHIL., J.D.

John E. Anderson Professor in Tax Law

CINDY ARCHER, B.A., J.D.

Clinical Professor of Law

JEFFERY ATIK, A.B., J.D., PH.D.

Professor of Law and Sayre MacNeil Fellow

SUSAN SMITH BAKHSHIAN, B.S., J.D.

Clinical Professor of Law

SARAH R. BENSINGER, B.A., M.A., J.D.

Clinical Professor of Law

ROBERT W. BENSON, A.B., J.D.

Professor Emeritus

CARLOS BERDEJO, B.A., J.D., PH.D.

Associate Professor of Law

LINDA S. BERES, B.S., M.S., J.D.

Professor of Law

BARBARA A. BLANCO, B.A., J.D.

Clinical Professor of Law and Faculty Clinical Director

JEAN BOYLAN, B.S., J.D.

Associate Dean for Clinical and Experiential Programs and Clinical Professor of Law

ROBERT D. BRAIN, B.S., M.S., J.D.

Clinical Professor of Law

SAMANTHA BUCKINGHAM, B.A., J.D.

Associate Clinical Professor of Law

SANDE L. BUHAI, B.A., J.D.

Clinical Professor of Law and Director of the Public Interest Law Department

AARON H. CAPLAN, B.A., J.D.

Associate Professor of Law

ANDERS B. CHRISTIANSEN, B.A., J.D.

Visiting Assistant Professor of Law in Taxation

BRIETTA R. CLARK, B.A., J.D.

Professor of Law

WILLIAM G. COSKRAN, B.S., J.D.

Professor Emeritus

JAN C. COSTELLO, B.A., M.A., J.D.

Professor of Law

DONALD W. COWEN, A.B., LL.B., LL.M.

Professor Emeritus

GARRETT K. CRAIG, B.A., J.D.

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MARY B. CULBERT, B.S., J.D.

Clinical Professor of Law and Director of the Center For Conflict Resolution

MARY F. DANT, B.A., J.D.

Clinical Professor of Law

F. JAY DOUGHERTY, B.A., J.D.

Professor of Law

AIMEE E. DUDOVITZ, B.A., J.D.

Associate Clinical Professor of Law

ROGER W. FINDLEY, A.B., J.D.

Professor Emeritus

JUDY A. FONDA, B.A., J.D.

Clinical Professor of Law

EDITH Z. FRIEDLER, J.D.

Professor Emeritus

GEORGE C. GARBESI, B.S., LL.B., LL.M., J.S.D.

Professor Emeritus

DAVID W. GLAZIER, B.A., M.A., J.D.

Professor of Law

VICTOR J. GOLD, B.A., J.D.

Fritz B. Burns Dean and Professor of Law; Senior Vice President, Loyola Marymount University

CHARLOTTE GOLDBERG, B.A., J.D.

Professor of Law

STANLEY A. GOLDMAN, B.A., J.D.

Professor of Law and Director of the Center for the Study of Law and Genocide

SIMONA GROSSI, M.A. (L.U.I.S.S. UNIVERSITY), LL.M.

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MICHAEL D. GUTTENTAG, A.B., M.B.A., J.D.

Professor of Law

RICHARD L. HASEN, B.A., M.A., J.D., PH.D.

William H. Hannon Distinguished Professor of Law

CHRISTOPHER C. HAWTHORNE, A.B., J.D.

Clinical Professor of Law

PAUL T. HAYDEN, B.A., J.D.

Professor of Law and Jacob J. Becker Fellow

DAVID HORTON, B.A., J.D.

Associate Professor of Law

BRYAN D. HULL, B.A., J.D.

Professor of Law

ALLAN IDES, B.A., M.A., J.D.

Christopher N. May Professor of Law

JENNIFER S. KAMITA, B.S., J.D.

Clinical Professor of Law and Director of Academic Support

GIDEON KANNER, B.M.E., J.D.

Professor Emeritus

KATHLEEN C. KIM, B.A., J.D.

Associate Professor of Law

JENNIFER M. KOWAL, B.S., J.D.

Clinical Professor of Law and Director of the Tax LL.M. Program

LARY LAWRENCE, B.A., J.D.

Harriet L. Bradley Professor in Contract Law

DANIEL E. LAZAROFF, B.A., J.D.

Leonard E. Cohen Professor in Law and Economics and Director of the Sports Law Institute

LAURIE L. LEVENSON, A.B., J.D.

David W. Burcham Professor in Ethical Advocacy and Director of the Center for Ethical Advocacy

JUSTIN M. LEVITT, B.A., J.D., M.P.A.

Associate Professor of Law

JOJO C. LIU, A.B., J.D.

Clinical Professor of Law

HON. FREDERICK J. LOWER, JR., B.S., J.D.

Professor and Dean Emeritus

KARL M. MANHEIM, B.S., J.D., LL.M.

Professor of Law

DANIEL W. MARTIN, B.A., M.L.S., J.D.

Professor of Law and Director of the William M. Rains Law Library

CHRISTOPHER N. MAY, A.B., LL.B.

Professor Emeritus

THERESE H. MAYNARD, B.A., J.D.

Professor of Law and Leo J. O’Brien Fellow

JOHN T. MCDERMOTT, A.B., J.D.

Professor of Law

GERALD T. MCLAUGHLIN, A.B., LL.B.

Professor and Dean Emeritus

YXTA MAYA MURRAY, B.A., J.D.

Professor of Law

ALEXANDRA NATAPOFF, B.A., J.D.

Professor of Law

DOUGLAS NEJAIME, B.A., J.D.

Associate Professor of Law

JOHN T. NOCKLEBY, B.A., J.D.

Professor of Law and Director of the Civil Justice Program

MAUREEN T. PACHECO, B.A., J.D.

Associate Clinical Professor of Law and Assistant Director of the Center for Juvenile Law and Policy

PAULA D. PEARLMAN, B.A., J.D.

Visiting Associate Professor of Law and Executive Director of the Disability Rights Legal Center

LEE PETHERBRIDGE, B.S., M.A., PH.D., J.D.

Professor of Law

SAMUEL H. PILLSBURY, A.B., J.D.

Professor of Law and William M. Rains Fellow

SUSAN POEHLS, B.A., J.D.

William C. Hobbs Clinical Professor of Law and Director of Trial Advocacy

KATHERINE T. PRATT, B.A., J.D., LL.M.

Professor of Law

FLORRIE YOUNG ROBERTS, B.A., J.D.

Professor of Law

CESARE P.R. ROMANO, M.A., D.E.S. (UNIVERSITY OF GENEVA), LL.M., PH.D.

Professor of Law and Director of the Masters of Law Program in American Law and International Legal Practice and W. Joseph Ford Fellow

GERALD P. ROSEN, A.B., J.D.

Professor Emeritus

JENNIFER E. ROTHMAN, A.B., M.F.A., J.D.

Professor of Law and Joseph Scott Fellow

DAN S. SCHECHTER, B.A., J.D.

Professor of Law

SEAN M. SCOTT, B.A., J.D.

Associate Dean for Faculty and Professor of Law

DANIEL P. SELMI, B.A., J.D., M.P.A.

Fritz B. Burns Professor in Real Property

THEODORE P. SETO, B.A., J.D.

Professor of Law and William M. Rains Fellow

ARNOLD I. SIEGEL, B.A., J.D.

Clinical Professor of Law and Director of Legal Writing and Ethical Lawyering Programs

JOSEPH V. SLISKOVICH, B.A., J.D., LL.M.

Professor of Law

CLEMENCE M. SMITH, A.B., LL.B.

Professor Emeritus

MICHAEL J. SMITH, B.A., J.D.

Associate Clinical Professor of Law

DANIEL L. STEWART, B.A., J.D., M.LITT., PH.D.

Professor Emeritus

MARCY STRAUSS, B.S., J.D.

Professor of Law

PETER M. TIERSMA, B.A., PH.D., J.D.

Hon. William Matthew Byrne, Jr. Professor of Law and Director of International Programs

KATHERINE A. TRISOLINI, B.A., M.A., J.D.

Associate Professor of Law

DAVID C. TUNICK, B.A., J.D.

Professor of Law

GEORGENE M. VAIRO, B.A., M.ED., J.D.

Professor of Law and William M. Rains Fellow

MICHAEL E. WATERSTONE, B.A., J.D.

Associate Dean for Research and Academic Centers, Professor of Law and J. Howard Ziemann Fellow

ANNE E. WELLS, B.A., J.D.

Associate Clinical Professor of Law

KIMBERLY WEST-FAULCON, B.A., J.D.

Professor of Law

GARY C. WILLIAMS, B.A., J.D.

Johnnie L. Cochran, Jr. Professor in Civil Rights

LAUREN E. WILLIS, B.A., J.D.

Professor of Law

MICHAEL E. WOLFSON, B.A., M.S.E., J.D.

Professor Emeritus

SCOTT E. WOOD, B.A., M.A., J.D.

Clinical Professor of Law

CYN YAMASHIRO, B.A., J.D.

Clinical Professor of Law and Executive Director of the Center for Juvenile Law and Policy

HARRY N. ZAVOS, B.A., PH.D., J.D.

Professor Emeritus

ADJUNCT FACULTY

RABBI JEFFREY D. ADLERSTEIN

EDUARDO A. ANGELES

JEFFREY ATKIN

MICHAEL BAZYLER

JACK BEARD

MICHAEL J. BERGER

RONALD L. BLANC

ELIZABETH BLUESTEIN

DAVID S. BOYCE

CASEY BOYLE

DAVID BRANDON

MARC E. BROWN

ROBERT BUCH

DANIEL J. BUCKLEY

DAVID BURCH

EDWARD M. BURGH

MARK BURNETT

SARA CAMPOS

JOHN CARAGOZIAN

STEVE CERVERIS

JOSEPH CHARNEY

ROXANNE CHRIST

M. ERIK CLARK

KATIE CODON

JERILYN COHEN

DANIELLE COLON

HON. DAVID J. COWAN

JEFFREY DEFRANCISCO

REBECCA DELFINO

ERICA DEUTSCH

STUART B. ESNER

VINCE FARHAT

GEORGE FATHEREE

DAVID B. FISCHER

DAVID FONTANA

TRACEY FREED

RICHARD C. FUNG

JOHN GARMAN

ROBIN C. GILDEN

JAMES W. GILLIAM

DAVID F. GLASSMAN

THERESA E. GLENN

STEVE GOLDSTEIN

JOSEPH GOODMAN

JAMES M. HARRIS

HON. REX HEESEMAN

THOMAS W. HENNING

JAMON R. HICKS

MARIELENA HINCAPIE

BENJAMIN HOFILENA

SANFORD HOLO

JOHN HORN

GUY IVERSEN

MAUREEN G. JOHNSON

PERLETTE M. JURA

ROBERT A. KAHN

SEAN K. KENNEDY

DAVID KESSELMAN

DEAN J. KITCHENS

MARY ELIZABETH KORS

TANNAZ KOUHPAINEZHAD

MIRIAM KRINSKY

MOSHE J. KUSHMAN

BABAK LALEZARI

ALLEN LANSTRA

MICHAEL LARKIN

ALEXANDER LEE

DAVID S. LESSOFF

JESSICA LEVINSON

PETER LEVITAN

LEONARD LEVY

GRAHAM LIPPSMITH

KATHERINE LYONS

KEVIN MASUDA

PAULA M. MITCHELL

ROBERT MORROW

THOMAS M. NECHES

MICHAEL J. NIBORSKI

VICTOR NIEBLAS PRADIS

HON. BEVERLY REID O’CONNELL

SHAWNA PARKS

NICOLE M. PEREZ

JOSHUA PHILLIPS

NORA PRECIADO

JAMES PRENDERGAST

MICHAEL PURLESKI

ROBERT PUSHAW

ALAN B. RABKIN

CRISTIAN M. RAMORINO

HON. ALEX RICCIARDULLI

A. JOEL RICHLIN

EDWARD M. ROBBINS

KEITH ROHMAN

CHARLES B. ROSENBERG

DAVID ROTH

ROBERT H. ROTSTEIN

SANDOR E. SAMUELS

DAWN SCHOCK

CRAIG SHALTES

ROLAND G. SIMPSON

CAROL SOBEL

GREGORY J. SOUKUP

DAVID STEELE

CHRISTINE STEINER

MARC M. STERN

N. LEE STRAUS

SCOTT STREET

JEFFREY M. TOLIN

MICHAEL TREIMAN

KATHERINE TUCKER

KAREN TUMLIN

HOWARD UNTERBERGER

DIRK VINCENT

DOROTHY VINSKY

PAUL VON BLUM

ALAN D. WALLACE

BRIAN WALTON

DONALD E. WARNER

STEPHEN WEERTS

DONALD R. WEIGANDT

JOEL B. WEINBERG

JOE WOHRLE

SUSAN M. WOOLLEY

DERRICK ZANDPOUR

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LOYOLA OF LOS ANGELES

INTERNATIONAL AND COMPARATIVE

LAW REVIEW

Volume 33

Winter 2011

Number 2

TABLE OF CONTENTS

ARTICLES

Digital Copyright Protection and Graduated Response: A Global Perspective

Michael Boardman

Was The Eritrea–Ethiopia Claims Commission Merely a Zero-Sum Game?: Exposing the Limits of Arbitration in Resolving Violent Transnational Conflict

Ari Dybnis

A Call for International Regulation of the Thriving “Industry” of Death Tourism

Alexander R. Safyan

Digital Copyright Protection and Graduated Response:

A Global Perspective

MICHAEL BOARDMAN

I. INTRODUCTION

Internet piracy causes copyright holders in the United States alone more than $25 billion in lost sales every year.[1] While some have challenged figures like this as misrepresenting the actual effects of piracy,[2] newer studies with less controversial methodologies have come to similar conclusions.[3] These losses impact not only wealthy artists and content owners, but also many other unknown workers and a broad segment of the global economy.[4] A 2007 study by the Institute for Policy Innovation reported that as a result of Internet copyright violations, the U.S. economy loses $58 billion and U.S. workers lose 373,375 jobs each year.[5] Additionally, U.S. workers lose $16.3 billion in earnings, including $7.2 billion in earnings from workers in the copyright industry or “downstream” retail industries.[6] These private losses have a significant broader impact as well, as federal, state, and local governments in the United States lose at least $2.6 billion in tax revenues each year, including $1.8 billion in personal income tax and $800 million in lost corporate income and production taxes.[7] Although the United States suffers disproportionately since it produces the majority of content pirated online, such losses are not exclusive to the United States.[8] The Motion Picture Association of America (MPAA) estimates that in 2005 alone, the global film and television industry lost $18.2 billion as a result of piracy.[9]

While new forms of unauthorized distribution continue to grow, the majority of copyright infringement on the Internet still occurs through peer-to-peer (P2P) file-sharing.[10] Although P2P activity is not infringing by definition, a large portion of it involves the transfer of copyrighted material without the owner’s permission or knowledge.[11] Courts have limited or shut down many of the original P2P file-sharing applications,[12] but others still operate and new technology has developed to accelerate the ease and effectiveness of transfers.[13] For example, BitTorrent is a protocol that breaks up files into small pieces and allows a website to host “trackers,” which link to the individual pieces of files on multiple users’ computers.[14] BitTorrent has increased the ease with which users can download large amounts of content and has eliminated many of the problems associated with direct P2P networks.[15] Other ostensibly legitimate websites offer illegally pirated content for sale through subscription models without the permission of copyright holders.[16] The huge financial losses associated with Internet piracy have prompted a number of legal responses with varying degrees of success.[17] This Note seeks to analyze the newest attempt at curbing online piracy, the so-called “graduated response” strategy.[18]

Part II identifies and briefly explains the international obligations with regard to copyright enforcement. Part III discusses controversial new domestic laws being considered which require Internet service providers (ISPs) to monitor the use of their subscribers and terminate a user’s Internet access after three “strikes” of large-scale copyright infringement. This section will assess these laws’ relationship to international copyright obligations, the applicability of any challenges to such laws under international human rights standards, and the policy effects of the laws’ implementation. Part IV addresses the major arguments against adopting graduated response laws and concludes that contrary to dissenting opinion, well-drafted graduated response laws best serve the international community’s interest in curbing piracy and maintaining copyright protections. This Note ultimately concludes that while domestic laws, such as the “HADOPI” law in France,[19] can be effective tools at curbing piracy and maintaining copyright protections, Internet piracy is fundamentally an international problem and should be managed and adjudicated through the creation of an international agency with global jurisdiction and enforcement powers.

II. GLOBAL TREATIES AND INTERNATIONAL COPYRIGHT OBLIGATIONS

Copyright as a legal protection is not defined by international laws.[20] Instead, treaties and other international agreements attempt to create a framework for organizing and establishing domestic copyright laws.[21] The first major attempts to create international standards for copyright protection were the Paris Convention of 1883[22] and the Berne Convention adopted in 1886.[23] These treaties established the concept of national treatment, which provides that as long as work is protected in one of the member states, other member states must provide equal or greater protection of the work.[24] A work may be protected based on a sufficient point of attachment (Berne Articles 3 and 4),[25] national origin of the creator (Berne Article 5),[26] and retroactivity (Berne Article 18, which protects works that were protected prior to the enactment of the treaty).[27] Thus, the standard for the existence of intellectual property in member countries is defined by the lowest common denominator among them.[28]

The Berne Convention, while still in effect, had very little “teeth” in terms of its enforcement mechanisms. To remedy this, the World Trade Organization (WTO) incorporated the entire convention into the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).[29] The TRIPS Agreement was developed in the Uruguay negotiations on the formation of the WTO and became part of its membership obligations in 1995.[30] As of July 23, 2008, there were 153 member states of the WTO,[31] all of which, by definition, had to subscribe to the terms of the TRIPS agreement.[32] Under TRIPS, rights-holders can take disputes to the WTO judicial body in Geneva, which has compulsory jurisdiction over members.[33] Such a move dramatically increased the force of law with respect to international copyright violations, since WTO disputes can carry far-reaching implications for global trade and political relations.[34]

Before delving into the legal arguments surrounding new law proposals, it is important to understand the controversies surrounding them. In the European Union, policy governing the member states comes in two forms: regulations and directives.[35] Regulations are immediately binding on all member states.[36] Directives are binding on member states to which they are addressed, but “shall leave to the national authorities the choice of form and methods.”[37] That is, member states must enact their own legislation in compliance with the parameters of the community directive. In 2004, the European Parliament passed Directive 2004/48/EC on the enforcement of intellectual property (IP) rights, commonly referred to as “IPRED.”[38] Acknowledging weaknesses in the current laws protecting intellectual property rights, this directive was intended to resolve disparities in member states’ enforcement of their obligations under TRIPS and other international treaties.[39]

A. Graduated Response in Practice

Sweden, the first country to implement its own IPRED law in compliance with the Directive, has been harshly criticized by opponents who argue that the law does not do enough to protect user privacy.[40] Under the Swedish law, rights-holders are permitted to seek a court order that would force ISPs to reveal the account details of users who illegally share files.[41] Swedish Internet traffic decreased by almost one-third the day the law was announced, suggesting that a significant portion of Internet use is dedicated to file-sharing.[42] In addition, Swedish ISPs began purging their files of the names of customers in anticipation of being served with such orders.[43] Even if ISPs and the public find ways to escape liability and continue to share files or purge records in the name of privacy, the dramatic drop in activity—and presumably file-sharing—suggests that the Swedish IPRED law has already achieved a major secondary goal: to change the public’s perception of file-sharing.[44]

True to form, the French process of developing laws corresponding to the Directive has been somewhat more dramatic. President Sarkozy has favored strong intellectual property rights protection,[45] and even went so far as to force an initial draft of his three-strikes law through the French Parliament on a midnight vote with only sixteen out of 577 representatives present.[46] The high court struck down this initial proposal as unconstitutional[47] in creating an executive body that would oversee Internet activity and require ISPs to shut off Internet access to infringers after three strikes, declaring that Internet access is a “fundamental human right” in the process.[48] The Media Commissioner of the European Commission, Viviane Reding, and other European states have echoed this idea of Internet access as a fundamental right.[49] Not to be outdone, the French Parliament quickly modified the law to include judicial oversight and the new Creation and Internet Law, dubbed “HADOPI II.”[50] The French Constitutional Commission approved this version on October 22, 2009.[51]

B. A Global Consideration

South Korea, Taiwan, and the United Kingdom have also passed graduated response laws that have the potential to shut off Internet access to copyright violators intending to profit from their violations.[52] Ireland, Spain, and New Zealand are also currently considering similar proposals to establish graduated response laws.[53] Although no such legislation has been discussed in the United States,[54] it has still been active in attempting to enforce TRIPS obligations against one of the biggest infringing states, China.[55] The first action brought against China fell well below U.S. expectations in that China was successful at avoiding heightened customs obligations.[56] A more recent strategy has put pressure on China to reform its rampant piracy by defining digitally transmitted audio-visual works as “goods” and thus subject to the general requirements of the General Agreement on Tariffs and Trade.[57] These actions highlight the difficulties associated with relying on domestic law to enforce international copyrights.

III. ANALYSIS OF DOMESTIC ENFORCEMENT MECHANISMS

While the cries of ISPs will likely be heard in court for years to come (to the extent that the law interferes with their businesses and the privacy of their customers), the French graduated response law appears to comply with TRIPS copyright enforcement obligations.

On October 28, 2009, the French National Assembly and the Senate passed Law No. 2009-1311, entitled “Relative à la protection pénale de la propriété littéraire et artistique sur Internet” (on criminal protection of literary and artistic property on the Internet).[58] This law modifies the original draft, which the Constitutional Council struck down for failure to include judicial oversight.[59] Whether the original draft would abridge the provisions of TRIPS is questionable, since TRIPS Articles 42 through 48 provide for “judicial authorities” to implement any enforcement laws;[60] however, the law’s current form nonetheless complies with TRIPS in a number of ways.

For example, the penalties fall within the scope of TRIPS Article 61. Article 61 provides for criminal penalties “at least” in cases of willful copyright piracy on a commercial scale.[61] This would imply that a state is free to enact laws that are more restrictive, but must at a minimum provide criminal liability for “commercial scale” violations. To that end, Article 1 of TRIPS states, “Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement.”[62] The French law requires a subscriber to online communication services to ensure that his access is not used for reproducing, showing, making available, or communicating to the public works or property protected by copyright without authorization from rights-holders.[63] This duty, while short of a commercial scale requirement, nevertheless falls within the parameters of punishable behavior under Article 61.

The question then becomes whether temporary suspension from Internet access is a valid form of penalty. After suitable notification, the French law allows for suspension of access to the Internet for a period of between two months and one year accompanied by the impossibility for the subscriber to enter into any other contract with any other operator for access to online public communication services.[64] TRIPS also requires remedies in the form of “imprisonment and/or monetary fines sufficient to provide a deterrent.”[65] While this may seem narrow, Internet access suspension appears to fall within the guidelines when looking at the Article in full. In “appropriate cases,” available remedies include: “seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence.”[66] An infringer clearly uses his Internet account in the commission of the offense and a state may legally seize, forfeit, or destroy the account if it finds that the account is used predominantly for the offense. Termination could reasonably fall under any one of those actions.

Moreover, another question arises as to whether the infringer’s Internet access was predominantly used for infringing a copyright. On its face, the French law does not limit its liabilities to commercial scale violations, but, as noted above, such a limitation is not necessary.[67] To the extent that the law is overbroad, it incorporates safeguards to ensure that casual infringers and those who clearly do not use their accounts predominantly to infringe copyrights will not be prosecuted.[68] Paragraphs 2 through 6 of Article L336-3 provide exceptions to these penalties if the access holder has installed one of the security devices referred to in the second paragraph of Article L331-32 or if the infringement is the result of fraudulent Internet access.[69]

Further, suspected violators must be given receipt of a recommendation addressed by the Committee for the protection of copyright accompanied by a signed acknowledgement of receipt or any other means likely to prove the date of the sending of said recommendation and its receipt by the subscriber.[70] Following such notice, the Committee shall hold a full hearing to determine the seriousness of the violation.[71] Under French law, a user can insulate himself from liability completely by installing an adequate security device, and if he is suspected of infringement, he is entitled to a judicial hearing where the burden of proof is on the government.[72] As a result, France’s law does not offend Article 61 of TRIPS and complies with international copyright obligations.

IV. LEGAL CHALLENGES TO GRADUATED RESPONSE

A. Internet Access as a Fundamental Right

In November 2009, the European Parliament agreed to add language to the European Union (EU) Telecoms Package that may affect the nature and scope of any graduated response proposals.[73] A closely watched and lobbied text,[74] Amendment 138 requires that EU Member states “respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.” Furthermore, restrictive measures must be “appropriate, proportionate and necessary within a democratic society,” and include the presumption of innocence, the right to judicial review, and the opportunity to be heard.[75] As the final step of sanctions in graduated response proposes to disable “end-users’ access to or use of services and applications through electronic communications networks,”[76] such laws would fall squarely within these guidelines.

Amendment 138 is clear in its requirements of the presumption of innocence and judicial review that have been adopted in the French system,[77] but leaves room for ambiguities in the ideas of “appropriate, proportionate and necessary,” as well as its definition of “fundamental rights and freedoms of natural persons.”[78] Viviane Reding, the European Commissioner for Information Society and Media, declared that graduated response, or three-strikes laws, will not be implemented in the EU under the new Telecom Package,[79] but the language of the Amendment may not be so clear. Rather than eliminating graduated response proposals, the language in Amendment 138 may instead provide guidelines for compliance.

The first issue with regard to Amendment 138 is where Internet access falls on the list of rights protected. While France has declared Internet access to be a fundamental right,[80] not all member states of the EU agree.[81] For instance, an amendment proposing this view nearly derailed the passage of the Telecom Package and was dropped in favor of the text agreed to in Amendment 138.[82] As a result, the Amendment’s language does not include Internet access in its definition of fundamental rights protected, and instead defines fundamental rights “as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.”[83] Far from defining Internet access as a fundamental right,[84] the general principles of Community law embodied in the IPRED directive have been widely criticized as being overly burdensome protections of IP rights.[85] In fact, a spokesman for the EU presidency noted during the Telecom Package negotiations, “‘None of the existing conventions and laws recognise Internet access as a fundamental right on its own. It is simply one of the means of access to information.’”[86]

B. Convention for the Protection of Human Rights and Fundamental Freedoms

The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) establishes two main rights that may be affected by graduated response laws: respect for privacy and freedom of expression (Articles 8 and 10, respectively).[87] As the designated judicial body for the European Convention, the European Court of Human Rights[88] has provided valuable guidance on the interpretation of these rights since 1959.[89] The court’s determinations, however, do not end the inquiry. Under the Vienna Convention on the Law of Treaties, these rights should be interpreted in conjunction with subsequent agreements, subsequent practices, and other relevant international laws to determine their meanings within the intent of the parties.[90]

1. Privacy

Article 8 of the European Convention has two prongs: Article 8(1) defines the rights at issue, while Article 8(2) provides the conditions under which interferences with those rights may be justified.[91] Article 8(1) states that “[e]veryone has the right to respect for his private and family life, his home and his correspondence.”[92] In the context of a graduated response law, private life and correspondence are directly impacted, whereas the home and family are implicated tangentially, if at all.[93]

The fact that Article 8(1) guarantees only respect for privacy seems to reveal a willingness to allow certain interferences so long as they do not become disrespectful.[94] Indeed, not all state actions that impact these areas constitute an interference under Article 8.[95] An applicant retains the burden to show an interference but the threshold test is very low.[96] In a graduated response context, such interferences create an issue of privacy in two ways: data retention and disclosure.[97] As Professor Brian Solove has identified, surveillance with or without the knowledge of the target can cause chilling effects on that individual’s welfare or activities.[98] The idea that an individual’s Internet use is being tracked may hamper freedom of expression and affect the online marketplace of ideas.[99] Similarly, the disclosure of private information can compromise an individual’s safety and freedom to develop his individuality.[100]

In Europe, collecting information about a person will generally interfere with the right to private life and will need justification.[101] The European Court of Human Rights has granted a zone of privacy that surrounds the person with little regard to where the information was collected.[102] Under U.S. law, however, such an interference is not as clear. U.S. courts have held that because there is no expectation of privacy in a public place, only surveillance which destroys secrecy is legally problematic.[103] This area of U.S. law seems directly applicable to a global graduated response proposal since there is little secrecy involved with navigating the Internet,[104] and even less with P2P networks.[105] In fact, P2P networks are by definition public—users log on to a shared database and exchange files with other users.[106] BitTorrent sites go even further in this regard since users post “feeds” on a publicly searchable message board that is visible to anyone who visits the site.[107] Because there is little expectation of privacy, monitoring these types of public activities may not constitute an interference with a privacy right.

The Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data also provides useful guidance for interpreting the European Convention’s privacy right. To the extent that personal data is gathered and exchanged over the Internet, Article 5 requires only that the retention of such information be proportional to the aims of the gathering.[108] In other words, collecting information is not an interference of privacy unless the information is stored and used for illegitimate purposes or excessive in relation to the purposes for which they are stored.[109] As such, data retention alone may not be enough to violate a privacy right.

Likewise, disclosure of a user’s identity and Internet usage also may fall below the level of interference required to trigger Article 8 protection. Like the collection of information, the harm in dissemination of data occurs where there is an expectation of privacy.[110] The expectation of privacy disintegrates when others know the facts that an individual wants to protect.[111] In the French example of graduated response, disclosure of a user’s identity will not be made until that entity and the court have decided that the user had ignored multiple warnings and the final sanction is issued.[112] Names of violators are listed on a register but are only accessible by ISPs to the extent necessary to implement the law by issuing or terminating subscription contracts.[113] These principles are not unlike existing procedures in other areas of law. A similar registry system called “WHOIS” has been implemented in the United States[114] and laws are in place that require ISPs to report illegal Internet use.[115] Under 18 U.S.C. § 2258A, ISPs are required to report transmission of child pornography by their customers, along with the personal contact information for those customers, to the National Center for Missing or Exploited Children, an agency that is federally chartered and works with federal and local law enforcement.[116] International graduated response laws would be written on a blank slate, and so long as drafters are careful to delineate the limits on disclosure, such laws could strike an adequate balance between the respect for privacy online and the goal of curbing repeated infringement.

Assuming that a petitioner can meet the burden of showing that a graduated response law interferes with his right to private life, the question then becomes the extent to which the law may so interfere. Article 8(2) permits an interference only if it is “in accordance with the law and is necessary in a democratic society in the interests of . . . the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”[117] Thus, the first issue to consider would be whether the interference is “in accordance with the law.” Data collection falls squarely within a state’s obligations under TRIPS Article 50(1)(b),[118] but domestic laws may be subject to more scrutiny.[119] In Kruslin v. France, the European Court of Human Rights assessed the “quality” of domestic law in determining whether it would qualify under Article 8(2).[120] To be a justifiable foundation, domestic laws must confer both discretion and limits on the ability of a state to interfere.[121] On this standard, the French law might be impermissibly vague,[122] and future drafters should consider the necessity of spelling out the specifics of data-gathering.[123]

Next, an interference with privacy must be “necessary in a democratic society.”[124] Whether the interests of protecting copyright will be sufficient here is somewhat unclear; however, the language of the European Convention and a sister treaty, the International Convention on Civil and Political Rights (ICCPR), gives some indication that it may satisfy this requirement. Preventing illegal P2P file-sharing arguably fits under four of the six interests listed in Article 8(2): (1) the economic well-being of the country; (2) the prevention of disorder or crime; (3) the protection of morals; and (4) the protection of rights of others.[125] The first two interests may be satisfied because, as previously noted, the copyright industry makes up a significant part of western economies[126] and file-sharing is illegal without the consent of copyright owners.[127] Public morals may be implicated to the extent that consumers feel free to illegally share files,[128] and the rights of creators and copyright holders are significantly impacted by P2P activity.[129] Further, in defining the privacy right under the ICCPR, Article 17(1) forbids only “arbitrary or unlawful interference.”[130] There, the state interest seems to be given significantly more latitude, and it is somewhat unlikely that the interests above would be considered arbitrary.

Once a sufficient state interest is found, the Court engages in a balancing test to assess the proportionality between the importance of the right at issue and the state interest in interfering with it.[131] States are granted a “margin of appreciation,” but the level of deference largely depends on the classification of the right at issue.[132] If drafters are successful in crafting specific legislation that merely restricts the ability of Internet users to share files illegally, an applicant’s claimed interest will fall low on the scale of importance.[133] If, instead, an applicant is able to make a case that graduated response laws curtail a wider variety of privacy rights, the importance of those rights will require a strong governmental interest.[134] Looking at the European Court of Human Rights’s jurisprudence, as well as other applicable treaties, suggests that the interest of combating Internet piracy would pass muster as a sufficient state interest.

2. Freedom of Expression

Another potential conflict arises when considering the right to freedom of expression as guaranteed by Article 10 of the European Convention.[135] This right includes, “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”[136] The ability to disseminate and exchange ideas is indeed fundamental to the growth of society and should not be brushed aside. In some cases, political expression, which deserves the highest form of legal protection,[137] may be hampered by Internet suspension. In Europe, a Pirate Party has emerged, whose sole platform is the “radical reform of copyright legislation, [and the] abolition of the patent system.”[138] While it is likely not the case for most casual P2P users, P2P file-sharing is a direct expression of Pirate Party political beliefs.

A full disconnection from the Internet will also involve an interference with the expression of myriad other, non-political opinions. Even though there are ample alternative channels to disseminate opinions outside of the Internet, graduated response laws impose a complete, albeit temporary, bar from one of them.[139] Regardless, whether the interference implicates political or other expression is not likely to cause legal problems, since courts have side-stepped the issue of freedom of expression and ruled on narrower grounds when possible.[140] A court could easily conclude that graduated response laws, even as applied to the Pirate Party, are not aimed at quashing political beliefs, but instead are enacted to comply with international copyright obligations under TRIPS.

Like Article 8, Article 10 of the European Convention requires justification for any interferences.[141] A well-drafted graduated response law is proportional to any interference with Article 10, in that it does not seek to chill the expression of ideas; rather, it merely seeks to quell unauthorized copying.[142] Termination of Internet access is limited and only contemplated as a last resort for repeat infringement.[143] Warning notices themselves may have a chilling effect on Internet behavior,[144] yet with an adequate judicial process in place to protect users who do not qualify for disconnection, such a chilling effect will likely be incidental.[145]

Further, when applied to intellectual property protection, the right to freedom of expression carries with it special limitations. For instance, Article 10(1) of the European Convention states that “[t]his article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”[146] Protection for intellectual property has been specifically carved out in the creation of the right to freedom of expression. In addition, such limitations are highlighted in other treaties’ definitions of the right, as well.[147] Article 19 of the ICCPR acknowledges that the exercise of freedom of expression carries “special duties and responsibilities,” which may require certain restrictions, such as “respect of the rights or reputations of others.”[148] Likewise, Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) combines the right to “take part in cultural life” in the same provision as the right to “benefit from the protection of the moral and material interests” in those creations.[149] Looking at these treaties together reveals a specific intent on behalf of the international community to permit laws which protect intellectual property.

C. Incorporating Fair Use

Because copyright protection is at least in part dedicated to promoting the public’s ability to enjoy the benefits of cultural progress, copyright law aims to strike a balance between the rights of the creator and those of the user.[150] To that end, the ability of an individual citizen to enjoy content and copy it for personal use has been protected in international law.[151] This principle of “fair use” was established in the United States in the Betamax case, where the Supreme Court held that consumers were permitted to record content from television via a “time shifting” device, such as a VHS recorder, and watch it later in their homes.[152] Statutes in the United States have also incorporated the idea of fair use, which permits certain uses of content without obtaining the permission of the owner.[153]

A draconian application of graduated response laws may create a chilling effect on the principle of fair use.[154] It is important to remember, however, that the international standard for fair use is defined by a three-step test established in the Berne Convention, not U.S. law.[155] More specifically, Article 9(2) allows exceptions for the exclusive right of reproduction for (1) certain special cases (2) that do not conflict with the normal exploitation of the work and (3) do not unreasonably prejudice the legitimate interests of the author.[156] If appropriately drafted, graduated response legislation on an international level would not unduly burden these uses; a legislature must simply define the type of uses it considers “certain special cases.”[157] If the requirements are clear, they may easily be incorporated into graduated response warning notices, allowing a user to challenge the notices by claiming that their activity falls within those carve-outs. Any issues concerning whether or not the use fits within those exceptions could then be adjudicated prior to termination.

Even though fair use seems inapplicable to file-sharing—which clearly conflicts with the normal exploitation of works[158]—fair use can be an essential consideration for graduated response laws. With the growth of online social networks and individual expressions of social preferences on personal web pages,[159] copyrighted content has played a large role in defining one’s identity.[160] In theory, a user who posts a link to a copyrighted article or other copyrighted media would be violating the terms of use and would thus be subject to a warning notice.[161] To preserve the operation of these social networking sites and to not overburden any agency tasked with policing infringement, this content should fall within the fair use doctrine established in the Berne Convention as much as possible. Allowing users to post content—subject to certain restrictions—may ensure that the postings do not prejudice legitimate financial interests of the copyright holder. For instance, having the ability to merely stream music rather than download it, or to limit links to authorized websites, would be essential to minimizing administrative costs associated with graduated response monitoring and implementation.[162] As is the case today, if graduated response proposals accept some elements of fair use, it would help to serve the public’s ability to use social content without a fear of civil or criminal action.[163] Instead, only repeated violations will be punished[164] and other considerations, such as the traditional justifications for copyright protection, may be maintained.

D. Graduated Response and Traditional Copyright Justifications

The principle that an individual can own a property right in an idea springs in large part from the political writings of John Locke. Copyright laws satisfy the Lockean proviso that individual ownership of property is justified only if “enough and as good”[165] is left over for society, since intellectual property is not as scarce as physical property and is thus non-rivalrous.[166] If artistic works are not protected, the incentive to create will be diminished, and so long as the incentive to create is a net gain to society, private ownership should be protected.[167] Graduated response laws help ensure this net gain by allowing users to access and use content for valid purposes, while effectively punishing repeated disrespect for the reward a copyright holder deserves.[168]

In the music business, content is generally created through a system in which artists are subsidized by record companies. Record companies then exploit the end product by releasing it to the public, providing a gain in public utility.[169] Without an ability to recoup the initial investment, record companies are limited in their ability to fund the production of new music. New artists, whose works are often the most progressive, are disproportionately affected.[170] Bands with an established fan base that do not rely on what could be analogized to start-up capital are able to make money independently by touring and playing in front of large audiences. The recording artist Bruce Springsteen, for example, earned $26 million from his 2006 tour.[171] Smaller artists around the world, on the other hand, have struggled. In France, the number of local repertoire albums released and the number of artists signed to labels slumped by sixty percent in seven years, from 2002 to 2009.[172] The decline in releases is at least in part attributable to an estimated twenty-five percent of the French Internet population illegally downloading music on a monthly basis.[173] Similar effects have been felt in Spain and Brazil.[174] If artists and their supporting record companies are not adequately protected against piracy, which would be the most direct means of providing content solely for social utility, the amount and rate of music’s advancement are harmed.[175] Recent laws protecting intellectual property have attempted to remedy this problem by accepting the entertainment industry’s solution and protecting digital rights management (DRM), but these laws have proven problematic.

With the growth of digital files that are easily and exactly duplicated, content creation industries have turned to encryption technology aimed at curbing unauthorized copying.[176] These technologies have taken many forms, but can all fall under the umbrella of DRM, and as a whole international law has protected them.[177] The World Copyright Treaty states that parties must provide “adequate legal protection and effective legal remedies against the circumvention of effective technological measures” used to protect the exercise of authors’ rights.[178] This focus on anti-circumvention has been echoed in the World Intellectual Property Organization (WIPO),[179] bilateral treaties,[180] and in the United States with the Digital Millennium Copyright Act (DMCA).[181]

The codification of the entertainment industry’s DRM strategy in a legal framework has led to somewhat perverse results. First, it incentivizes record and movie producers to spend valuable resources on developing complicated encryption techniques rather than investing in the development of new content.[182] In practice, music DRM has been largely unsuccessful at controlling piracy and providing a return on content investment.[183] For example, technologically savvy digital pirates can find many ways around encryptions, and consumers have rejected products sold with burdensome DRM.[184] Because DRM restricts the abilities of software and hardware to access content, files encrypted with DRM are necessarily tied to a certain platform or device.[185] This practice adversely affects consumers since formats for playing content can quickly become obsolete, forcing consumers to purchase the content they want in multiple forms.[186]

Second, anti-circumvention legislation effectively protects the possibility of infringement rather than actual infringement. While the DMCA outlaws circumvention of DRM,[187] this provision is incredibly hard to enforce in a digital world. As a result, lawsuits filed under 17 U.S.C. § 1201(a), which outlaws manufacturing or other “trafficking”[188] in any devices or technologies intended to circumvent DRM, provide better returns for rights holders. Under this section, rights holders can sue companies with deeper pockets than individuals, and thus ostensibly cut off circumvention at the source by limiting technical capacity for infringement.[189] This type of law only effectively controls technologies which enable infringement and does little to address unauthorized use of the content. Certain devices that would be useful to the public, such as RealDVD, a program and device which allows users to “rip” DVD content onto a hard drive and watch it later without the physical DVD in the drive, have been enjoined from production by the Ninth Circuit based on arguments that it provides the capability for users to share content with their friends, not that the users have actually done so.[190] From a theoretical perspective on punishment, outlawing a threat of potential future actions runs more afoul of the theories of “just desert” than any graduated response proposal. In fact, graduated response laws will combat these preemptive strikes by addressing only the individual infringements and not inhibiting the creation of new technological progress.

Third, the DMCA creates an opportunity for rights holders to monitor unauthorized postings of their content online and send notices to the ISPs that host infringing content.[191] Under § 512 of the United States Copyright Act, ISPs are immune from copyright liability provided that they remove content that a copyright holder claims is infringing.[192] This system, while intended to make the enforcement process more efficient by not involving the judicial system, has been widely abused.[193] Corporate copyright holders have flouted the statute’s good faith belief requirement and have hired third parties with a financial incentive to send out as many notices as possible, some of which send out over 1 million automated notices per year.[194] In addition to this blanket approach, take-down notices have been used to stifle criticism, or simply attempt to punish ISPs by flooding them with paperwork.[195] Take-down notice abuse has been prevalent enough for the Electronic Frontier Foundation, Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law to establish a clearinghouse which tracks the interplay between the DMCA and the First Amendment, collectively hosting a database of abusive notices.[196]

To solve this problem, a shift toward graduated response and away from DRM protections is necessary. DRM forces copyright holders to spend valuable resources on protecting its content rather than developing new content, and it is also fundamentally at odds with the idea that copyright protections were created for the benefit of society, not authors.[197] If operated and overseen by an independent agency, graduated response could remove some of the burden on copyright holders to protect content, as well as keep abusive take-down notices under control, since the incentive for blanketing ISPs with take-down notices will be minimized.[198] Individual rights holders could therefore continue to report infringement and an unbiased third-party would be in place to monitor and adjudicate such claims.

V. AN INTERNATIONAL SOLUTION

While the French graduated response law is a valid and useful regulation under the TRIPS guidelines,[199] the ease with which files may be transferred across state lines (and thus jurisdictions) requires a global approach.[200] While incorporating the TRIPS Agreement as part of WTO negotiations implies an intent for universal application, the TRIPS Agreement only sets out guidelines and minimum requirements for domestic laws.[201] This nationalized approach leaves gaping holes in protection because the problems associated with file-sharing are not domestic in nature: the Internet offers access to files by users in any country with a connection.[202] To that end, an independent global body should be established under the auspices of the WTO to regulate and adjudicate claims in furtherance of the graduated response laws proposed in France and elsewhere.

A. Domestic Laws Are Ineffective at Curbing Internet Piracy

Scholars have given many explanations as to why domestic enforcement of intellectual property rights has been historically ineffective.[203] These hurdles have been especially prevalent in China,[204] even after China has submitted itself to WIPO and to TRIPS.[205] According to those obligations, China provides civil remedies for copyright infringement and criminal penalties for large-scale infringement intended for profit.[206] In January 2009, the WTO dispute settlement panel found that China’s criminal penalties were deficient with regard to Article 61 of TRIPS in that they set liability thresholds too high. The ruling, however, focuses only on the scope of what China considers commercial in nature and not on the fundamental requirement of criminalizing types of infringement.[207] On paper, Chinese copyright laws arguably provide stronger protection than the United States’ since they have no fair use exceptions.[208]

Nonetheless, China’s laws themselves do little to combat piracy. The International Intellectual Property Alliance reported that in 2008, ninety to ninety-five percent of the Chinese market for “OD” products (physical DVDs and CDs) were pirated.[209] Internet piracy is also a growing concern and government enforcement of laws has been notably lacking in this arena, in part because the growth of China’s Internet development is closely tied to piracy.[210] By the end of 2008, China’s Internet population was the largest in the world and nearly the size of the entire United States population.[211] This vast number of users is still only 22.6% of the potential population, leaving significant room for growth.[212] In addition, 608 million people in China use mobile devices, of which 117.6 million use them to access the Internet.[213] With such a vast number of users that will continue to grow, China’s lack of enforcement of its intellectual property protections will only grow more problematic for rights holders.[214]

However damaging China’s lack of IP enforcement has been domestically, its effects are not limited to China alone. China’s largest search engine, Baidu,[215] provides unauthorized “deep links” to copyrighted content that may be accessed by users anywhere outside of China, “especially in Hong Kong, Taiwan and Chinese communities of various southeast Asian countries.”[216] In fact, up to half of all content available on the top link sites around the world is estimated to be sourced in China.[217] Similarly, file-sharing sites such as the Pirate Bay, hosted in Sweden, and isoHunt, hosted in Canada, are available to users around the world.[218]

1. Even Where Enforced, Domestic Laws Have Proven Ineffective

Even in countries where domestic laws have been enforced, such laws and judicial decisions do little, if nothing, to curb infringement in other countries. Recent decisions against the BitTorrent hosts—The Pirate Bay,[219] Mininova,[220] and isoHunt[221]—only block these sites on a country-by-country basis and not worldwide.[222] Where courts have ordered ISPs in certain countries to block access to P2P sites, the sites nonetheless have remained largely accessible.[223] A United States District Court recently granted summary judgment against isoHunt, a BitTorrent site hosted in Canada, in part because of the wide accessibility of files, and thus infringement, in the United States.[224] The Court used a de facto “activities test” and noted that while isoHunt’s sites were based outside of U.S. jurisdiction, up to 2.5 million U.S. citizens have visited the P2P sites, and the sites were visited up to 50 million times from within the United States in a single month.[225] Even though U.S. courts have repeatedly held that file-sharing networks illegally induce infringement,[226] the isoHunt case points out the relative futility of even the most wide-reaching applications of domestic law.

2. Domestic Law Enforcement Strategies Are Ineffective at Solving the Underlying Issues

Because an Internet user can simply log on to a P2P site hosted in another country with minimal IP protections (either de facto or de jure), domestic terminations do little to combat the fundamental problem of file-sharing: that individual infringers do not recognize its illegality.[227] Attacking individual users in court has been disastrous for the Recording Industry Association of America,[228] since lawsuits create a feeling that large corporations are ganging up on helpless individuals and imposing disproportionate penalties on them.[229] While legally these proportionality arguments have largely been unsuccessful, the cases promote a “David versus Goliath” viewpoint that has been adopted by many users and reputable law professors.[230]

To counter this problem, recent litigation strategies have attacked host sites and not individual users.[231] These strategies are similarly beside the point. Given the difficulties of keeping laws up to date with the advancement of Internet technology, one of the biggest threats to copyright protection is the mindset of the individual users that file-sharing is acceptable.[232] Legal battles which may ban hosts from operating within a certain jurisdiction are akin to costly games of “whack-a-mole.”[233] Where a site is extinguished in one jurisdiction, other sites will spring up so long as there is user demand for them.[234] Since attacks on host sites, which themselves do not infringe copyright but merely “induce” infringements,[235] will perpetually meet jurisdictional hurdles and fail to address the underlying infringing activity,[236] an international system of coordinated graduated response is needed.

B. Disputes Between States Are Ill-Suited for Internet Piracy.

Although TRIPS gave teeth to the Berne Convention’s protections by sending disputes to the WTO’s dispute settlement body (DSB),[237] disputes between governments provide too much latitude for effective enforcement of intellectual property protections. One fundamental objection to adjudicating digital copyright violations through the DSB is that the rate of digital technology changes far too quickly for the DSB to reach a meaningful resolution.[238] Since disputes between nations have broad consequences on political relations and global trade, bilateral diplomacy is often preferred to filing a formal complaint.[239] If a formal claim is filed and a panel requested, the DSB framework allows forty-five days for a panel to be appointed and up to six months for the panel to issue its first report.[240] In cases of urgency, the deadline is shortened to three months;[241] however, the target date for adoption by the DSB of a panel report without appeal is one year from the filing of the dispute.[242] In practice, disputes may take many years to resolve.[243] A uniform graduated response approach, by contrast, will reduce the time it would take to adjudicate copyright violations, since diplomatic negotiation would not be necessary. It would also eliminate the political consequences involved with a WTO dispute. Graduated response on a global level, with effective enforcement, would take copyright out of the realm of the WTO (subject to a claim as a last resort) and off of the political radar.[244]

VI. CONCLUSION

Graduated response does not have to be the debilitating, establishment-driven, and inflexible approach that is described by its critics. Instead, well-drafted laws can, and indeed must, incorporate principles of fair use and can more accurately police infringement than DRM-based laws, which focus mainly on potential violations.[245] Privacy concerns are important considerations; however, these concerns should be tempered with the necessity of an adequate response to digital copyright violations on an international scale.[246] While it is clear that too much monitoring of Internet usage will hamper the potential of the Internet for growth and development of culture,[247] it is equally clear that a lack of monitoring results in near catastrophic effects on those who create.[248] As recently recognized in an open letter from the popular band called OK Go, a group that represents the epitome of free viral marketing and content distribution,[249] promoting free access to content online might work for established bands, but not all artists are as liberal with their creations and corporate rights holders are also entitled to recoup their investments through intellectual property protections.[250] A balance between these interests must be struck to allow new content to be created. While controversial, graduated response laws that are sensitive to valid fundamental rights claims, and also provide an adequate means of adjudication, can serve the interests of artists, corporate copyright holders, and society’s ability to utilize the benefits of the useful arts.

1 . Press Release, Senator Sheldon Whitehouse, International Anti-Piracy Caucus Unveils “2009 International Piracy Watch List” (May 20, 2009), available at http://whitehouse.senate.gov /newsroom/press/release/?id=eaa3f1b7-8146-4ab4-bad1-5eb599215e10.

2 . See, e.g., William Patry, Moral Panics and the Copyright Wars 30, 169 (2009).

3 . See, e.g., Frequently Asked Questions, Motion Picture Ass’n of Am., http://www. mpaa.org/contentprotection_faq (last visited Sept. 6, 2011) (noting how piracy hurts the movie industry); Richard Verrier, Piracy Cost Studios $6 Billion in ’05, Study Says, L.A. Times, May 3, 2006, at C2.

4 . The MPAA estimates that 2.4 million workers in the United States are employed by the motion picture industry. Content Protection, Motion Picture Ass’n of Am., http://www.mpaa. org/contentprotection (last visited Sept. 6, 2011).

5 . Stephen E. Siwek, The True Cost of Copyright Industry Piracy to the U.S. Economy i (2007), available at http://www.ipi.org/IPI/IPIPublications.nsf/PublicationLookup FullTextPDF/02DA0B4B44F2AE9286257369005ACB57/$File/CopyrightPiracy.pdf?Open Element.

6 . Id.

7 . Id. at i.

8 . Id. at i, 1.

9 . Interview by Bob Garfield with Greg Sandoval, CNET, How Bad is Piracy? No One Knows, On The Media (Apr. 23, 2010), http://www.onthemedia.org/transcripts/2010/04/23/04.

10 . See Int’l Fed’n of the Phonographic Indus., IFPI Digital Music Rep. 19 (2010), available at http://www.ifpi.org/content/library/DMR2010.pdf [hereinafter Digital Music Rep.].

11 . Peer-to-Peer (P2P) File Sharing and Copyright Infringement, Univ. of Md. Baltimore, http://www.umaryland.edu/HEOA/P2P_Document (last visited Sept. 6, 2011).

12 . See, e.g., Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

13 . See, e.g., The Pirate Bay, http://thepiratebay.org (last visited Sept. 6, 2011); Mininova, http://www.mininova.org (last visited Sept. 6, 2011); eMule Project, http://www. emule-project.net (last visited Sept. 6, 2011).

14 . See Adam Pash, A Beginner’s Guide to BitTorrent, Lifehacker (Aug. 3, 2007), http://lifehacker.com/285489/a-beginners-guide-to-bittorrent.

15 . See Paul Gil, How BitTorrents Work: A Non-Technical Explanation, About.com, http://netforbeginners.about.com/od/peersharing/a/torrenthandbook_2.htm (last visited Sept. 6, 2011). BitTorrent is extremely popular: fifty-seven percent of all Internet traffic in Eastern Europe is made up of BitTorrent transfers. Ipoque, Internet Study 2008/2009 4 (2009), http://www.ipoque.com/resources/internet-studies/internet-study-2008_2009.

16 . See, e.g., Coming Soon: The Internet Could Be a Boon for Hollywood—But Only If It Can Conquer Its Fears, Economist.com (Feb. 21, 2008), http://www.economist.com/ displaystory.cfm?story_id=10723360 (describing the pirate site for movies called ZML.com).

17 . The Recording Industry Association of America (RIAA), for example, filed a series of lawsuits against individual users for illegally sharing files, and while the legal outcome has been largely positive for the RIAA, the lawsuits have been a public relations nightmare and have been discontinued. See Sarah McBride & Ethan Smith, Music Industry to Abandon Mass Suits, Wall St. J. Digital Network (Dec. 19, 2008), http://online.wsj.com/article/SB122966038836 021137.html.

18 . The name comes from the fact that pressure on infringers will be gradually increased should they disregard notices sent identifying illegal behavior. See Digital Music Rep., supra note 10, at 7.

19 . Conseil constitutionnel [CC] [Constitutional Court] decision No. 2009-580DC, June 10, 2009, Journal Officiel de la République Française [J.O.] [Official Gazette of France], p. 9675 (Fr.).

20 . See Andreas P. Reindl, Choosing Law in Cyberspace: Copyright Conflicts on Global Networks, 19 Mich. J. Int’l L. 799, 800 (1998).

21 . See id.

22 . Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, 21 U.S.T. 1983.

23 . Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, 1 B.D.I.E.L. 715.

24 . Joined Cases C-92/92 & C-326/92, Phil Collins v. Imtrat Handelsgesellschaft mbH and Patricia Im- und Export Verwaltungsgesellschaft mbH and Leif Emanuel Kraul v. EMI Electrola GmbH., 1993 E.C.R. I-05145, Summary ¶ 2 (“In prohibiting ‘any discrimination on the grounds of nationality’ Article 7 requires each Member State to ensure that persons in a situation governed by Community law be placed on a completely equal footing with its own nationals and therefore precludes a Member State from making the grant of an exclusive right subject to the requirement that the person concerned be a national of that State.”).

25 . Berne Convention for the Protection of Literary and Artistic Works, supra note 23, arts. 3–4.

26 . Id. art. 5.

27 . Id. art. 18 (ensuring protection for works that were protected prior to the enactment of the treaty).

28 . Other international instruments, such as the treaty forming the World Intellectual Property Organization (WIPO) and the Treaty of Rome, can determine applicable international standards for international copyright protection, but are largely outside the scope of this Note. Those treaties deal with specific types of rights and terms of protection, not the enforcement of violations. Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886), World Intell. Prop. Org., http://www.wipo.int/treaties/en/ip/berne/summary_berne. html (last visited Sept. 6, 2011).

29 . Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization arts. 1–2, Annex 1C, 1869 U.N.T.S. 299 [hereinafter TRIPS].

30 . Overview: The TRIPS Agreement, World Trade Org., http://www.wto.org/english/ tratop_e/trips_e/intel2_e.htm (last visited Sept. 6, 2011).

31 . Understanding the WTO: Members and Observers, World Trade Org., http://www. wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Sept. 6, 2011).

32 . TRIPS, supra note 29, art. 1.

33 . Id. art. 64.

34 . See Claude Barfield, WTO Dispute Settlement System in Need of Change, 37 Intereconomics 131, 132 (2002).

35 . EC Treaty art. 249 (as in effect 1992) (now TFEU art. 288).

36 . Id.

37 . Id.

38 . Council Directive 2004/48, 2004 O.J. (L 157) 1 (EC).

39 . See id. ¶¶ 5–11.

40 . See Peter Vinthagen Simpson, “File Sharing Law Goes Too Far”: Swedish EU Election Candidates, Local: Sweden’s News in English (May 4, 2009, 10:50 AM), http://www. thelocal.se/19226/20090504/.

41 . See Piracy Law Cuts Internet Traffic, BBC News (Apr. 2, 2009, 1:10 PM), http://news. bbc.co.uk/2/hi/technology/7978853.stm.

42 . Id.

43 . Rick Hodgin, Swedish ISP Announces It Will Delete User-Identifiable IP Data, Geek.com (Apr. 27, 2009, 4:16 PM), http://www.geek.com/articles/news/swedish-isp-announces -it-will-delete-user-identifiable-ip-data-20090427.

44 . See generally Patrick Smith, EC Survey: Third of Young People Won’t Pay for Online Content, PaidContent: UK (Aug. 4, 2009, 10:48 AM), http://paidcontent.co.uk/article/419-ec-survey-third-of-young-people-wont-pay-for-online-content/ (reporting that one-third of Europeans aged sixteen to twenty-four have no intention whatsoever of paying for online content such as video and music).

45 . Sarkozy became the first French President to address Parliament in 150 years when he spoke to promote the proposed three-strikes law. Enigmax, Sarkozy Says He Will Go “All the Way” with 3 Strikes, TorrentFreak (June 23, 2009), http://torrentfreak.com/sarkozy-says-he-will-go-all-the-way-with-3-strikes-090623 [hereinafter Sarkozy Says He Will Go “All the Way” with 3 Strikes].

46 . Guillaume Champeau, La loi Hadopi votée à la sauvette par 16 députés! [The Web Laws Passed in Haste by 16 Members!], Numerama (Apr. 3, 2009), http://www.numerama.com/ magazine/12527-La-loi-Hadopi-votee-a-la-sauvette-par-une-poignee-de-deputes.html.

47 . See CC decision No. 2009-580DC, supra note 19. The French Constitutional Council required judicial, not executive, oversight of a body with the ability to terminate Internet access. See id. ¶ 28.

48 . Marshall Kirkpatrick, Is Internet Access a Fundamental Human Right? France’s High Court Says Yes, ReadWriteWeb (June 11, 2009, 9:29 AM), http://www.readwriteweb.com/ archives/is_internet_access_a_fundamental_human_right_franc.php.

49 . Matt Asay, Is Internet Access a “Fundamental Right”?, CNET News (May 6, 2009, 9:32 AM), http://news.cnet.com/8301-13505_3-10234555-16.html. For example, Finland passed a law in October 2009 making access to broadband a right of all citizens starting in July 2010. See Don Reisinger, Finland Makes 1Mb Broadband Access a Legal Right, CNET News (Oct. 14, 2009, 10:26 AM), http://news.cnet.com/8301-17939_109-10374831-2.html.

50 . Hadopi 2 Passes French Senate, Intell. Prop. Watch (July 9, 2009), http://www.ip-watch.org/weblog/2009/07/09/hadopi-2-passes-french-senate/. HADOPI is the name of the agency created to oversee the law. It stands for “Haute autorité pour la diffusion des oeuvres et de la protection des droits sur l’internet.” Hogan & Hartson LLP, Telecommunications, Media & Entertainment Update: French Online Copyright Infringement Law Faces Challenges But May Create Business opportunities 1 n.1 (2009), available at http://www.hoganlovells.com/files/Publication/b3773467-7d3c-4d28-8546-be4e4952fba9/ Presentation/PublicationAttachment/51918c8f-410b-4d7c-89c1-c40a85947978/TME_May2109 .pdf.

51 . See Leigh Phillips, France Passes Tough Internet Piracy Bill, Bloomberg Businessweek (Sept. 17, 2009, 12:28 PM), http://www.businessweek.com/globalbiz/content/ sep2009/gb20090917_225687.htm; Eric Pfanner, France Approves Wide Crackdown on Net Piracy, N.Y. Times (Oct. 22, 2009), http://www.nytimes.com/2009/10/23/technology/23net.html.

52 . See Jared Moya, South Korea’s “Three-Strikes” Law Takes Effect, ZeroPaid (July 23, 2009), http://zeropaid.com/news/86703/south-koreas-three-strikes-law-takes-effect/; Net Service Providers Now Can “Strike Out” Pirating Surfers, China Post (Apr. 22, 2009, 9:28 AM), http://www.chinapost.com.tw/taiwan/local/taipei/2009/04/22/205160/Net-service.htm; Michael Carroll, Controversial UK Law Finally Passed, TelecomsEurope (Apr. 9, 2010), http://www. telecomseurope.net/content/controversial-uk-anti-piracy-law-finally-passed.

53 . See, e.g., Austin Modine, Irish ISP Eircom in “Three Strike” Filesharer Crackdown, The Register (Feb. 3, 2009, 5:10 PM), http://www.theregister.co.uk/2009/02/03/eircom_agrees_ to_three_strikes_enforcement/; Ernesto, Spain Rejects Proposed Legislation to Shutdown P2P Sites, TorrentFreak (Dec. 22, 2010), http://torrentfreak.com/spain-rejects-proposed-legislation -to-shutdown-p2p-sites-101222/; Section 92A Review Policy Proposal Document, Ministry of Econ. Dev., http://www.med.govt.nz/templates/MultipageDocument TOC____41169.aspx (last updated July 14, 2009).

54 . Jacqueline Klosek, Combating Piracy and Protecting Privacy: A European Prospective, Intell. Prop. Advisor (Oct. 1, 2008), http://www.goodwinprocter.com/Publications/Newsletter -Articles/IP-Articles/2008_10/01_01.aspx.

55 . See Donald P. Harris, The Honeymoon is Over: The U.S.–China WTO Intellectual Property Complaint, 32 Fordham Int’l L.J. 96, 97 (2008).

56 . Panel Report, China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R ¶ 3.1 (Jan. 26, 2009).

57 . Panel Report, China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R (Dec. 21, 2009).

58 . Loi 2009-1311 du 28 octobre 2009 relative à la protection pénale de la propriété littéraire et artistique sur internet [Law 2009-1311 of October 28, 2009 on the Criminal Protection of Literary and Artistic Property on the Internet], Journal Officiel de la République Française [J.O.] [Official Gazette of France], Oct. 28, 2009, p. 18290 [hereinafter HADOPI II].

59 . See CC decision No. 2009-580DC, supra note 19.

60 . TRIPS, supra note 29, arts. 42–48.

61 . Id. art. 61.

62 . Id. art. 1.

63 . See HADOPI II, supra note 58, art. 5(1).

64 . See id. art. 5(3).

65 . TRIPS, supra note 29, art. 61.

66 . Id.

67 . See HADOPI II, supra note 58, art. 5(2).

68 . See id. art. 11.

69 . Id.

70 . Id. art. 5(3).

71 . Id.

72 . Id. The French Constitutional Council ruled that shifting the burden of proof to the user was in violation of Article 9 of the Declaration of the Rights of Man. CC decision No. 2009-580DC, supra note 19, ¶ 18.

73 . Compromise on Amendment 138 Telecom Package Finalised, Eur. Digital Rts. (Nov. 5, 2009), http://www.edri.org/edrigram/number7.21/amendment138-replaced-consiliation [hereinafter Amendment 138].

74 . The Internet rights group La Quadrature du Net has an entire forum dedicated to opposing the passage of Amendment 138. La Quadrature, http://www.laquadrature.net/en/ Telecoms_Package (last visited Sept. 6, 2011).

75 . Amendment 138, supra note 73.

76 . Id.

77 . See id.

78 . See id.

79 . Press Release, Europa, EU Telecoms Reform: 12 Reforms to Pave Way for Stronger Consumer Rights, an Open Internet, a Single European Telecoms Market and High-speed Internet Connections for All Citizens (Dec. 18, 2009), http://europa.eu/rapid/pressReleasesAction.do? reference=MEMO/09/568 (quoting EU Telecoms Commissioner Viviane Reding, who stated that “‘Three-strikes-laws,’ which could cut off Internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law.”).

80 . Kirkpatrick, supra note 48.

81 . See Stanely Pignal, Internet Access “Right” Plan Dropped, Fin. Times (Nov. 4, 2009, 5:25 PM), http://www.ft.com/cms/s/0/87c552ba-c965-11de-a071-00144feabdc0.html.

82 . Stanely Pignal, Web Push Derails Europe Telecoms Reform, Fin. Times (May 6, 2009, 7:45 PM), http://www.ft.com/cms/s/0/0d3925d4-3a69-11de-8a2d-00144feabdc0.html.

83 . Amendment 138, supra note 73.

84 . For an argument in favor of a fundamental right to access information, see generally Geoffrey A. Hoffman, In Search of an International Human Right to Receive Information, 25 Loy. L.A. Int’l & Comp. L. Rev. 165 (2003).

85 . See Danny O’Brien, IPRED 2: Pausing for Thought, Electronic Frontier Found. (Feb. 26, 2007), http://www.eff.org/deeplinks/2007/02/ipred2-pausing-thought.

86 . Stanley Pignal, Anti-Piracy Law Threatens Europe’s Telecoms Revamp, Fin. Times (Apr. 28, 2009, 3:00 AM), http://cachef.ft.com/cms/s/0/487d2124-338c-11de-8f1b-00144feabdc0. html.

87 . European Convention for the Protection of Human Rights and Fundamental Freedoms arts. 8, 10, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECHR].

88 . Id. art. 19.

89 . Established in 1959, the Strasbourg Court has delivered over six thousand judgments. European Court of Human Rights, Human Rights Online, http://www.human-rights-online.org/Human-Rights-Law/European-court-Human-Rights/index.htm (last visited Sept. 6, 2011).

90 . See Vienna Convention on the Law of Treaties arts. 31–32, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679.

91 . ECHR, supra note 87, art. 8.

92 . Id.

93 . David Harris et al., Law of the European Convention on Human Rights 381 (2d ed. 2009). Because monitoring or interception of email is not contemplated as part of graduated response, this Note only discusses the right to respect for private life. In some circumstances, “‘the very existence of this legislation continuously and directly affects [an applicant’s] private life.’” Id. at 398 (quoting Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (Ser. A) at 18 (1981)).

94 . ECHR, supra note 87, art. 8.

95 . See Harris et al., supra note 93, at 381. But see id. at 423 (noting that the Court has tended to use the term “respect” to broaden obligations on states rather than limit them).

96 . A successful applicant need not show actual interference, only a sufficient degree of likelihood of interference. Id. at 398.

97 . Graduated response would require ISPs to maintain records of Internet usage and disclose information about illegal behavior to designated authorities. See id. at 397.

98 . Daniel J. Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477, 491–95 (2006).

99 . Id.

100 . Id. at 532.

101 . See Harris et al., supra note 93, at 397.

102 . See id.

103 . See Solove, supra note 98, at 496, 499.

104 . Internet users are already subject to many forms of usage monitoring. See, e.g., Kurt Opsahl, Google Begins Behavioral Targeting Ad Program, Electronic Frontier Found. (Mar. 11, 2009), http://www.eff.org/deeplinks/2009/03/google-begins-behavioral-targeting-ad-program (noting that issues with behavioral advertising have been around for over a decade).

105 . The U.S. Federal Trade Commission recently warned that P2P sites expose users to security risks since such networks make their personal information available to third parties. See Widespread Data Breaches Uncovered by FTC Probe, Fed. Trade Comm’n (Feb. 22, 2010), http://ftc.gov/opa/2010/02/p2palert.shtm.

106 . Matei Ripeanu, Peer-to-Peer Architecture Case Study: Gnutella Network 1 (2001), available at http://www.cs.uchicago.edu/files/tr_authentic/TR-2001-26.pdf.

107 . See, e.g., Enigmax, Pirate Bay Torrents Spread Via Facebook, TorrentFreak (Mar. 29, 2009), http://torrentfreak.com/spread-pirate-bay-torrents-via-facebook-090328 [hereinafter Pirate Bay Torrents Spread Via Facebook].

108 . Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, art. 5, Jan. 28, 1991, E.T.S. no. 108.

109 . Id.

110 . Solove, supra note 98, at 535 (noting that problematic disclosure occurs when information spreads beyond the limits of existing boundaries).

111 . Id. at 534.

112 . See HADOPI II, supra note 58, art. 5(3).

113 . Id.

114 . The Internet Corporation for Assigned Names and Numbers (ICANN) requires organizations that register domain names to include the name and contact information for all website registrants in a free, publicly searchable database called WHOIS. Generic Names Supporting Association, ICANN, http://gnso.icann.org/issues/whois (last visited Sept. 6, 2011).

115 . ISPs are subject to fines for failing to report transmission of child pornography by their customers to the National Center for Missing or Exploited Children (NCMEC). The release of information outside of NCMEC and law enforcement is strictly regulated. 18 U.S.C. § 2258A (Supp. III 2010).

116 . Id.

117 . ECHR, supra note 87, art. 8.

118 . TRIPS, supra note 29, art. 50, ¶ 1 (“The judicial authorities shall have the authority to order prompt and effective provisional measures . . . to preserve relevant evidence in regard to the alleged infringement.”); see Harris et al., supra note 93, at 344 (noting that “in accordance with the law” may be satisfied by a rule of international law).

119 . See Harris et al., supra note 93, at 346 (discussing Kruslin v. France, 176 Eur. Ct. H.R. (Ser. A) (1990), where the Court held that the French law at issue lacked sufficient “quality”).

120 . Id.

121 . See id.

122 . HADOPI II, supra note 58, art. 5(3) (providing that the measures taken by the committee are limited to those necessary to end a violation of Article L336-3).

123 . A global approach might combat these “quality” issues since the court could rely solely on TRIPS.

124 . ECHR, supra note 87, art. 8.

125 . Id.

126 . See Content Protection, supra note 4.

127 . Berne Convention for the Protection of Literary and Artistic Works, supra note 23, art. 2.

128 . See e.g., Smith, supra note 44.

129 . See Digital Music Rep., supra note 10, at 18; Press Release, Senator Sheldon Whitehouse, supra note 1; Frequently Asked Questions, supra note 3; Siwek, supra note 5, at i.

130 . International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), art. 17, ¶ 1, U.N. Doc. A/RES/21/2200 (Dec. 16, 1966).

131 . Harris et al., supra note 93, at 349.

132 . Id. at 358.

133 . The court has recognized rights such as the right to private enjoyment of sexual relations, the attorney-client privilege, and the ability of a prisoner to communicate with legal advisors. Id. at 407–09.

134 . Even though the right of a prisoner to be free from interference with his correspondence has been given high importance, the “powers to intercept, scrutinize, and prohibit correspondence” was upheld based on the state interests of national security and public safety. Id. at 410.

135 . ECHR, supra note 87, art. 10, ¶ 1.

136 . Id.

137 . See Harris et al., supra note 93, at 455.

138 . David Kravets, Pirate Party Wins EU Parliament Seat, Wired (June 8, 2009, 10:09 AM), http://www.wired.com/threatlevel/2009/06/pirate-party-wins-eu-parliament-seat.

139 . See HADOPI II, supra note 58, art. 5(3).

140 . See Harris et al., supra note 93, at 445 (noting that in Glasenapp v. Germany, 104 Eur. Ct. H.R. (Ser. A) (1986), and Kosiek v. Germany, 105 Eur. Ct. H.R. (Ser. A) (1986), the European Court of Human Rights decided that Article 10 was not implicated by a refusal to hire a candidate for a job that was at odds with his political beliefs); see also United States v. O’Brien, 391 U.S. 367 (1968) (the seminal freedom of speech case, which outlines the test to determine whether a regulation is aimed at content or conduct).

141 . ECHR, supra note 87, art. 10, ¶ 2. Article 10 carries the identical requirement that the interference be “necessary in a democratic society.” Id.

142 . See HADOPI II, supra note 58, art. 5(3).

143 . See id.

144 . See Chilling Effects, http://www.chillingeffects.org (last visited Sept. 6, 2011).

145 . Lea Shaver & Caterina Sganga, The Right to Take Part in Cultural Life: On Copyright and Human Rights, 27 Wis. Int’l L.J. 637, 656 (2010).

146 . ECHR, supra note 87, art. 10, ¶ 1.

147 . G.A. Res. 2200A (XXI), supra note 130, art. 19.

148 . Id. art. 19, ¶ 3.

149 . G.A. Res. 2200A (XXI), 21 U.N. GAOR, 21st Sess., Supp. No. 16, art. 15, U.N. Doc. A/6316 (Dec. 19, 1966).

150 . See TRIPS, supra note 29, art. 7.

151 . See Berne Convention for the Protection of Literary and Artistic Works, supra note 23, art. 9.

152 . Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984).

153 . See, e.g., 17 U.S.C. § 107 (2000).

154 . Cf. Madhavi Sunder, IP: YouTube, MySpace, Our Culture (forthcoming 2011) (manuscript at 22) (on file with author) (noting that under the current legal structure, “many artists and amateur creators simply ‘cease and desist’ because they do not have the funds to legally discern whether theirs is a ‘fair use’ of intellectual property”).

155 . Berne Convention for the Protection of Literary and Artistic Works, supra note 23, art. 9, ¶ 2.

156 . Id.

157 . Id.

158 . See Press Release, Senator Sheldon Whitehouse, supra note 1.

159 . Facebook, for example, has exploded in popularity, documenting over 750 million active users as of September 2011. Press Room, Facebook, http://www.facebook.com/press/info.php? statistics (last visited Sept. 6, 2011).

160 . Professor Sunder argues that intellectual property is best used to facilitate participatory culture and explores the ways in which intellectual property helps define one’s cultural identity. See Sunder, supra note 154, at 23–24.

161 . See Berne Convention for the Protection of Literary and Artistic Works, supra note 23, art. 9, ¶ 1 (explaining the exclusive right to authorize reproduction of works).

162 . One argument of ISPs is that it would be economically unfeasible to cooperate with graduated response effectively. Clinton Manning, Internet Piracy Could Add £24 to Every Phone Bill, Mirror (Sept. 22, 2009), http://www.mirror.co.uk/news/city-news/2009/09/22/internet-piracy-policing-could-add-24-to-every-phone-bill-115875-21691017/.

163 . See Sunder, supra note 154, at 22.

164 . Iterations of graduated response in Korea and France have been based on a “three strikes” model, where Internet access is cut off only after multiple warnings. Moya, supra note 52; Sarkozy Says He Will Go “All the Way” with 3 Strikes, supra note 45.

165 . Locke’s famous Treatises on Government provide much of the foundation for the labor/reward theory of intellectual property law. A man who makes use of a piece of property may appropriate it so long as there is “enough, and as good” left over for the public. John Locke, Two Treatises of Government 291 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690).

166 . See Seana Valentine Shiffrin, Lockean Arguments for Private Intellectual Property, in New Essays in the Legal and Political Theory of Property 138, 141–42 (Stephen R. Munzer ed., 2001).

167 . See Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287, 310 (1988).

168 . See Opinion of the European Data Protection Supervisor on the Current Negotiations by the European Union of an Anti-Counterfeiting Trade Agreement (ACTA), 2010 O.J. (C. 147) 1, ¶¶ 21–22.

169 . Open Letter from OK Go, OKGo.net (Jan. 18, 2010, 6:16 PM), http://okgo. forumsunlimited.com/index.php?showtopic=4169.

170 . See Digital Music Rep., supra note 10, at 23.

171 . Top 100 Celebrities, Bruce Springsteen, Forbes.com, http://www.forbes.com/lists/2006 /53/Y6W8.html (last visited Sept. 6, 2011).

172 . Digital Music Rep., supra note 10, at 19.

173 . Id.

174 . See id.

175 . See id. at 20.

176 . Antone Gonsalves, DRM Enterprise Market Poised for Growth, InformationWeek.com (July 1, 2004, 7:00 PM), http://www.informationweek.com/news/show Article.jhtml?articleID=22103402.

177 . All DVDs, for example, are encrypted with a technology called Content Scramble System, the key to which is licensed to manufacturers of DVD players. Without the key, the disks will not play. See Content Scramble System, DVD Copy Control Ass’n, http://www. dvdcca.org/css.aspx (last visited Sept. 6, 2011).

178 . World Intellectual Property Organization Copyright Treaty, art. 11, Dec. 20, 1996, 36 I.L.M. 65.

179 . Id.

180 . See, e.g., Agreement Between the United States of America and the Hashemite Kingdom of Jordan on the Establishment of a Free Trade Area, Oct. 24, 2000, 41 ILM 63.

181 . 17 U.S.C. § 1201(a)–(c) (2000).

182 . EMI abolished DRM on audio CDs, stating “the costs of DRM do not measure up to the results.” Sander Marechal, DRM on Audio CDs Abolished, LXer (Jan. 9, 2007, 5:31 AM), http://lxer.com/module/newswire/view/78008/index.html. Likewise, DRM for movies is expensive: the license fee to manufacture DVD players is $15,500 per year, plus $500 for each set of technical specifications needed. Content Scramble System, supra note 177.

183 . See Marechal, supra note 182; Digital Music Rep., supra note 10, at 3.

184 . See Peter Cohen, iTunes Store Goes DRM Free, Macworld (Jan. 6, 2009, 10:40 AM), http://www.macworld.com/article/137946/2009/01/itunestore.html; Marechal, supra note 182.

185 . Farhad Manjoo, DRM Isn’t Dead, Slate (Jan. 12, 2009, 6:33 PM), http://www.slate. com/id/2208441/pagenum/all/ (“Buy a movie from iTunes and you’re stuck playing it on stuff made by Apple—iTunes, iPods, iPhones, or Apple TV devices. Apple has even baked DRM into its computers: The video ports on new MacBooks check to see whether an external monitor obeys copy-protection standards.”).

186 . DRM has occasionally been inconsistent with technological developments developed by the same company. For example, Microsoft launched the Zune player without allowing it to support the encryption used by its previous services. Derek Slater, Microsoft’s Zune Won’t Play Protected Windows Media, Electronic Frontier Found. (Sept. 15, 2006), http://www.eff.org/ deeplink/2006/09/microsofts-zune-wont-play-protected-windows-media.

187 . 17 U.S.C. § 1201(a) (2006).

188 . Id.

189 . See, e.g., Geoff Duncan, Appeals Court Rules Against Kaleidescape’s DVD Copying, Digital Trends (Aug. 13, 2009), http://www.digitaltrends.com/home-theater/appeals-court-rules-against-kaleidescapes-dvd-copying/.

190 . See RealNetworks, Inc. v. DVD Copy Control Ass’n, Nos. C 08-4548 MHP & C 08-4719 MHP, 2010 WL 145098, at *5 (N.D. Cal. Jan. 8, 2010); Mark Hachman, Kaleidescape’s DVD-Ripping Appeal Denied, PCMag.com (Oct. 27, 2009, 1:49 PM), http://www.pcmag.com/ article2/0,2817,2354821,00.asp.

191 . 17 U.S.C. § 512 (2006).

192 . Id.

193 . Patry, supra note 2, at 169.

194 . Id.

195 . Id.

196 . Chilling Effects, supra note 144.

197 . See Content Scramble System, supra note 177; see also supra Part IV.B.2 (discussing the importance of freedom expression and the exchange of ideas, as set forth in the European Convention).

198 . Cf. Patry, supra note 2, at 169 (describing abuse of the takedown notice provision).

199 . See supra Part III.

200 . See Peter K. Yu, Four Common Misconceptions About Copyright Piracy, 26 Loy. L.A. Int’l & Comp. L. Rev. 127, 129–30 (2003).

201 . TRIPS, supra note 29, art. 1.

202 . See Yu, supra note 200, at 131–32.

203 . See id. at 130 (noting the existence of four theories—cultural impediments, development problems, belief that copyright piracy is a past phenomenon in developed countries, and belief that piracy is a necessary byproduct of authoritarian rule—and adding a fifth, that developing countries have no stake in protecting content).

204 . See William P. Alford, To Steal a Book is an Elegant Offense: Intellectual Property Law in Chinese Civilization 56–57 (1995) (discussing the role of Confucianism in China’s lack of copyright enforcement).

205 . Convention Establishing the World Intellectual Property Organization, July 14, 1967, 21 U.S.T. 1749; Member States, WIPO, http://www.wipo.int/members/en/ (last visited Sept. 6, 2011); Members and Observers, World Trade Org., http://www.wto.org/english/thewto_e/ whatis_e/tif_e/org6_e.htm (last visited Sept. 6, 2011).

206 . Christopher Beam, Bootleg Nation: How Strict are Chinese Copyright Laws?, Slate (Oct. 22, 2009, 6:16 PM), http://www.slate.com/id/2233156/.

207 . United States Wins WTO Dispute Over Deficiencies in China’s Intellectual Property Rights Laws, Office of the U.S. Trade Representative (Jan. 2009), http://www.ustr.gov/ about-us/press-office/press-releases/2009/january/united-states-wins-wto-dispute-over-deficiencies-c (China’s definition of “commercial scale” infringement was only triggered for copying of 500 DVDs or more).

208 . Beam, supra note 206.

209 . Int’l Intell. Prop. Alliance, People’s Republic of China: 2009 Special 301 Report on Copyright Protection and Enforcement 94 (2009), available at http://www.iipa.com/rbc/2009/2009SPEC301PRC.pdf [hereinafter IIPA China Rep.].

210 . Id. at 88 (“[A]nnouncements with respect to the importance of spreading advanced broadband and mobile technology to all Chinese citizens can be seen as suggesting that concern about piracy is, at best, secondary given the fact that much of the current allure of broadband uptake is the ability to obtain content for free. With piracy fueling the growth of these technologies, that development has clearly taken precedence over online IPR protection and the development of legitimate commerce in the online environment.”).

211 . Id. at 86.

212 . Id.

213 . Id.

214 . See id. at 84, 86.

215 . Global Search Market Draws More than 100 Billion Searches per Month, comScore (Aug. 31, 2009), http://www.comscore.com/index.php/Press_Events/Press_Releases/ 2009/8/Global_Search_Market_Draws_More_than_100_Billion_Searches_per_Month.

216 . IIPA China Rep., supra note 209, at 86.

217 . Id. at 87.

218 . Anna Ringstrom, Sweden to Charge Pirate Bay in Copyright Case, Reuters (Jan. 27, 2008, 10:23 AM), http://www.reuters.com/article/2008/01/27/us-sweden-piratebay-idUSL272373 3820080127; Enigmax, IsoHunt Loses U.S. Lawsuit Against Movie Studios, TorrentFreak (Dec. 24, 2009), http://torrentfreak.com/isohunt-loses-us-lawsuit-against-movie-studios-091224 [hereinafter IsoHunt Loses U.S. Lawsuit].

219 . Oscar Swartz, The Pirate Bay Guilty; Jail for Filing-Sharing Foursome, Wired (Apr. 17, 2009, 2:28 AM), http://www.wired.com/threatlevel/2009/04/pirateverdict/.

220 . See David Kravets, Court Castrates Mininova, The Pirate Bay Alternative, Wired (Aug. 26, 2009, 10:07 AM), http://www.wired.com/threatlevel/2009/08/court-castrates-mininova-the-pirate-bay-alternative [hereinafter Court Castrates Mininova].

221 . Order Granting Plaintiffs’ Motion for Summary Judgment on Liability, Columbia Pictures Indus. v. Fung, No. CV 06-5578 SVW (JCx), 2009 WL 6355911 (C.D. Cal. Dec. 21, 2009).

222 . See Greg Sandoval, Pirate Bay Suffers Outage, Site Back Up, CNET News (Oct. 2, 2009, 5:04 PM), http://news.cnet.com/8301-1023_3-10366805-93.html; IsoHunt Loses U.S. Lawsuit, supra note 218; Court Castrates Mininova, supra note 220. For example, isoHunt was only taken down in the United States but remains operational in Canada. IsoHunt Loses U.S. Lawsuit, supra note 218.

223 . See Sandoval, supra note 222.

224 . Order Granting Plaintiffs’ Motion for Summary Judgment on Liability, supra note 221, at 46.

225 . Id. at 40–41.

226 . See, e.g., Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 936–37 (2005); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1021 (9th Cir. 2001); Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124, 153 (S.D.N.Y. 2009).

227 . See Jessica Litman, Copyright Noncompliance (or Why We Can’t “Just Say Yes” to Licensing), 29 N.Y.U. J. Int’l L. & Pol. 237, 238–39 (1997) (noting that most people try to follow laws they understand and believe in but they don’t recognize the legitimacy of copyright in many cases).

228 . See McBride & Smith, supra note 17.

229 . See, e.g., Joel Fights Back, http://joelfightsback.com (last visited Sept. 6, 2011).

230 . Charles Nesson, a Harvard Law professor, tried a case for a man accused of illegal file sharing. He largely relied on a proportionality argument but lost a $675,000 judgment. See The Copyright Wars Continue in Boston, Joel Fights Back, http://joelfightsback.com/#/2011/03/ the-copyright-wars-continue-in-boston/ (last visited Sept. 6, 2011); Final Appeal Brief to the First Circuit, Joel Fights Back, http://joelfightsback.com/#/2011/02/final-appeal-brief-to-the-first-circuit/ (last visited Sept. 6, 2011).

231 . See, e.g., Swartz, supra note 219; Court Castrates Mininova, supra note 220.

232 . See Yu, supra note 200, at 132–33.

233 . Court decisions seem to have had little effect on BitTorrent operators. Pirate Bay Torrents Spread Via Facebook, supra note 107 (“With the recent trial out of the way, it seems The Pirate Bay team have had more time for development of the site.”).

234 . BitTorrent sites are still widely accessible. See Paul Gil, The Top 40 Torrent Sites of 2010, About.com (Oct. 17, 2010), http://netforbeginners.about.com/od/peersharing/a/torrent_ search.htm.

235 . See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 936–37 (2005).

236 . See Yu, supra note 200, at 129–30.

237 . TRIPS, supra note 29, art. 64.

238 . Renowned inventor Ray Kurzweil has argued that technology is on an exponential growth curve, increasing so fast that in the near future it will be beyond human capacity to control. See generally Ray Kurzweil, The Singularity is Near: When Humans Transcend Biology (2005).

239 . Besides the practical self-imposed incentive to negotiate, the DSB requires parties to a dispute to consult diplomatically for up to sixty days. WTO Dispute Settlement, Inst. for Trade & Com. Dipl., http://www.commercialdiplomacy.org/manuals/wto_dispute.htm (last visited Sept. 6, 2011).

240 . Id.

241 . Id.

242 . Id.

243 . See WTO Appellate Body Confirms Finding Against China’s Treatment of Certain Copyright-Intensive Products, Office of the U.S. Trade Representative (Dec. 2009), http://www.ustr.gov/about-us/press-office/press-releases/2009/december/wto-appellate-body-confirms-finding-against-china. For example, the United States initiated its most recent WTO dispute over IP rights with China in April 2007. The final panel report was issued on August 12, 2009. Id.

244 . See supra Part II.A (explaining that graduated response is a domestic approach in which online copyright infringers are increasingly penalized should they continue to ignore warnings); supra Part V.B (discussing the undesirable political consequences of settling copyright disputes between nations via the WTO’s dispute settlement body).

245 . See supra Part IV.D.1.

246 . See supra Part V.A (analyzing the government interest involved).

247 . Solove, supra note 98, at 488 (explaining the chilling effects of monitoring and disclosure).

248 . See Digital Music Rep., supra note 10, at 18–19.

249 . See CapitolMusic, OK Go—Here It Goes Again, YouTube (Apr. 3, 2008), http://www.youtube.com/watch?v=QaRfxjcpYvM. The music video for OK Go’s song “Here It Goes Again” generated over forty-nine million views on YouTube from July 2006 until it was blocked by EMI, the major British record label that the band had signed with to promote its most recent album. Id.

250 . See Open Letter from OK Go, supra note 169. Unfortunately, EMI and OK Go were not able to find a workable balance. EMI’s online restrictions prompted the band to publicly cancel its contract in 2010. See OK Go and EMI Split, Vulture, Mar. 10, 2010, http://nymag.com/daily/entertainment/2010/03/ok_go_and_emi_split.html.

Was The Eritrea–Ethiopia Claims Commission Merely a Zero-Sum Game?: Exposing the Limits of Arbitration in Resolving Violent Transnational Conflict

ARI DYBNIS[*]

I. INTRODUCTION

In 2000, Eritrea and Ethiopia filed claims against each other in the Eritrea–Ethiopia Claims Commission (Commission) for humanitarian international law violations that arose from a violent border dispute between the two countries.[1] Eritrea claimed approximately $6 billion in damages,[2] while Ethiopia countered with claims for approximately $14.3 billion in damages.[3] Nearly ten years later, on August 17, 2009, the Commission reached a final determination on these damage claims.[4] The Commission awarded approximately $174 million to Ethiopia, and approximately $161 million to Eritrea.[5] The practical result of these awards, however, is a mere $13 million judgment that Eritrea owes to the Ethiopian government, none of which is assured to reach any of the actual victims of the violence.[6]

There is a common saying that “if something is worth doing, then it is worth doing right.” In the international context, the “right way” to redress a wrong is often impractical, infeasible, or even unknowable until after the fact. It is within this framework that this Note contends that the Commission was not the “right way” to address the damage that thousands of victims suffered as a result of the border conflict between Eritrea and Ethiopia.

The commissioners of the Commission were able to accomplish admirable feats with their allotted resources and employed some sophisticated techniques and methodologies to determine the final awards. However, these ultimately ineffective final awards highlight the inherent limitations of traditional arbitration as a method for redressing mass claims of humanitarian violations. The governments should have utilized modern alternative mechanisms that international bodies have developed to address mass claims specifically, instead of relying on the traditional arbitration model. Utilization of these mechanisms would have increased the chances that the actual victims of the war could receive any sort of justice.

In Part I, this Note will explain the background of the Commission, including the history of the border conflict between Eritrea and Ethiopia that raged between 1998 and 2000, the composition of the Commission, and the Commission’s ten-year history. Part II will explain how the inherent structural problems in the Commission’s arbitration model prevent the final monetary awards from providing victims with just compensation, despite the admirable work done by the commissioners. These structural problems result in awards that effectively cancel out without providing any meaningful benefit to the victims. Part II will also explore how these same structural defects prevented the Commission from assuring peace and security in the international community.

Part III will then describe the history and structure of the United Nations Compensation Commission and the Bosnia Commission for Real Property Claims of Displaced Persons, two modern examples of commissions that have enjoyed success. Part III will also discuss the success of these two commissions as compared to those of the Commission, and why they should have had a stronger impact on the latter.

Finally, just because there might exist an alternative “right way,” there are admittedly many road-blocks that obstruct the implementation of such mechanisms. The principal obstacles are resources, time, and the will to implement a better system. Part IV will explore these impediments and address their impacts, ultimately concluding that despite these serious considerations, the involved parties could have implemented a modern claims commission that would have resulted in a more just outcome.

II. THE ERITREA–ETHIOPIA CONFLICT AND AN AGREEMENT TO ARBITRATE VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW

A. Conflict Arose from a Dispute over the Border Town of Badme and Quickly Developed into a Violent Two-Year War

Eritrea and Ethiopia are neighboring countries with intermeshed histories located in the northeastern part of Africa.[7] Eritrea was previously a province of Ethiopia, but in 1993 the people of Eritrea won their independence.[8] Relative peace existed between the two countries until 1998, when the two neighbors engaged in a deadly war covering multiple fronts along their common border.[9] This conflict displaced and affected hundreds of thousands of people.[10]

The conflict began in May when the two parties began to fight over who could claim the territory of Badme.[11] Each side blamed the other for instigating the initial fighting.[12] The fundamental conflict concerned the location of the border between the two countries—what one side characterized as an invasion, the other characterized as a domestic occupation.[13] Within one month, the fighting spread along the entire border between the two countries.[14] Later the same year, the Organization of African Unity[15] and the United Nations Security Council both observed the severity of the conflict and attempted to intervene so as to calm the dispute.[16] On December 17, 1998, the Organization of African Unity drafted a “framework agreement” calling on Eritrea to withdraw troops from Badme so that the cartographic section of the United Nations could determine and demarcate the border.[17] Eritrea did not accept the proposal, believing that such a withdrawal might indicate a concession that the territory belonged to Ethiopia.[18] Consequently, the violence continued to rage.

By early 1999, the conflict had escalated into a full-scale war.[19] The Secretary-General of the United Nations contacted the leaders of Eritrea and Ethiopia and urged them to resolve the matter peacefully.[20] The countries ignored these pleas and the violence continued until Eritrea finally accepted the framework agreement on February 27, 1999.[21] By this point, Ethiopia’s military position had strengthened and, as a result, Ethiopia refused to accept the agreement.[22] Instead, Ethiopia demanded that Eritrea automatically recognize Ethiopia’s sovereignty over all of the territories in dispute, rather than letting the United Nations demarcate the border.[23] Finally, on May 17, 2000, the United Nations Security Council adopted Resolution 1298, which imposed sanctions and trade restrictions on the two countries.[24]

B. Fighting Ceased When the Countries Signed the Algiers Agreement, Which Created the Commission to Arbitrate Violations of Humanitarian Law

In June 2000, the two countries began to negotiate a ceasefire agreement,[25] followed by a full peace agreement in December 2000.[26] This agreement is known as the “Algiers Agreement,” because the parties negotiated and signed it in Algiers.[27] The parties never published details of the negotiation, “but it is known that Eritrean and Ethiopian negotiators and their legal advisers met with legal experts familiar with the Permanent Court of Arbitration, the United Nations Compensation Commission (UNCC) in Geneva, and other contemporary Mass Claims Processes.”[28] This agreement was the result of substantial pressure from and efforts by the international community to end the conflict.[29]

The Algiers Agreement called for the creation of three bodies: (1) an independent body created under the Organization of African Unity to “determine the origins of the conflict,” (2) a neutral boundary commission to officially demarcate the border between the two countries, and (3) a neutral tribunal to arbitrate claims of international law violations.[30] The first body was never established, and the second body is known as the Boundary Commission.[31] The third body is the Commission.[32]

The Algiers Agreement required that:

[T]he [Eritrea–Ethiopia Claims] Commission is to decide through binding arbitration all claims for loss, damage or injury by one Government against the other, and by nationals (including both natural and juridical persons) of one party against the Government of the other party or entities owned or controlled by the other party . . . . The Commission shall not hear claims arising from the cost of military operations, preparing for military operations, or the use of force, except to the extent that such claims involve violations of international humanitarian law.[33]

The Algiers Agreement was specific in the overall goal of the Commission, yet it afforded the Commission an incredible amount of flexibility in determining particular procedures for handling claims and in modifying its own rules.[34] The adopted rules of procedure and rules of evidence were original to the Commission, although they were based on the “Permanent Court of Arbitration Optional Rules for Arbitrating Disputes Between Two States,” which itself is based on the “United Nations Commission on International Trade Law.”[35] In addition, the Commission still retained the ability to modify the rules after consultation with the parties.[36]

According to the Algiers Agreement, the Commission was to decide claims resulting from violations of international humanitarian law, but not claims arising from actual military operations or use of force, unless they too involved violations of international humanitarian law.[37] The relevant rules of law the Commission followed were: (1) international conventions, (2) international custom, (3) general principles of law recognized by civilized nations, and (4) previous judicial and arbitral decisions.[38]

The Algiers Agreement also defined the structure and organization of the Commission.[39] It created the Commission under the auspices of the Permanent Court of Arbitration, located in The Hague, which acted as a base and as a registry for the Commission.[40] The Permanent Court of Arbitration stored and cataloged the parties’ pleadings and acted as a intermediary between the parties and the Commission.[41] Outside of the services the Permanent Court of Arbitration provided, all costs resulting from the Commission were split equally among the two governments.[42]

As for the actual composition of the Commission, it was comprised of five arbitrators.[43] These commissioners only worked on a part-time basis.[44] Aside from the commissioners and the Permanent Court of Arbitration, the Commission “employ[ed] no full-time staff” and relied heavily upon email “to limit travel and other costs.”[45]

The structure of the Commission was similar to traditional arbitration tribunals, yet unlike traditional arbitration mechanisms, the Algiers Agreement created the Commission to arbitrate a binding and final conclusion without any possibility of appeal.[46] Yet despite declaring the Commission’s decisions as final and binding, the Algiers Agreement provided no method for enforcement of judgments.[47]

Originally, the mandate for the Commission required a three-year deadline to arbitrate all claims.[48] The Algiers Agreement provided no procedure for extending this deadline, nor did either party request or attempt to extend this deadline.[49] The Commission therefore only accepted claims that the parties filed within the first year of its existence and extinguished all later claims, in an attempt to meet the three-year deadline.[50] Both Eritrea and Ethiopia filed claims past the deadline and the Commission refused to consider them due to the lack of timeliness.[51] As this Note will explore in Part II, this deadline played an important role in how the Commission evolved. Ultimately, it became very clear to the commissioners that the three-year deadline was unrealistic and they agreed to extend the deadline, which is how the Commission then expanded into a ten-year process.[52]

Both Eritrea and Ethiopia asserted a huge variety of claims, so the Commission decided to lump the States’ claims into categories which it could then systematically address.[53] These categories included:

Category 1 – Claims of natural persons for unlawful expulsion from the country of their residence; Category 2 – Claims of natural persons for unlawful displacement from their residence; Category 3 – Claims of prisoners of war for injuries suffered from unlawful treatment; Category 4 – Claims of civilians for unlawful detention and injuries suffered from unlawful treatment during detention; Category 5 – Claims of persons for loss, damage or injury other than those covered by the other categories; Category 6 – Claims of [the two party] Governments for loss, damage or injury.[54]

Also, both parties drafted extensive filings that the Commission then followed with private hearings.[55] International aid organizations and advocacy groups could have provided information to the government parties, but only the governments themselves were actually allowed to file information with the Commission directly.[56]

C. The Boundary Commission, Partial Awards of the Commission, Resistance of the Two Parties, and Enforcement Issues

The Boundary Commission, the second commission formed under the Algiers Agreement, issued its findings in a decision on April 13, 2002.[57] The decision indicated that Badme, the site of the original outbreak of violence, was an Eritrean territory.[58] Both parties initially accepted the border decision on paper, but once the Commission set out to physically demarcate the border, the decision was met with severe resistance by Ethiopia.[59] Ethiopia refused to allow preparations for the demarcation on the property it controlled.[60] In 2003, Ethiopia wrote a letter to the United Nations Secretary General declaring that the Boundary Commission’s decision was “totally illegal, unjust and irresponsible.”[61] In response, Eritrea refused to allow the demarcation of another part of the border until Ethiopia allowed its portion to be demarcated.[62] The Commission hit a standstill and, as a result, the Boundary Commission’s work still has yet to be completed, despite numerous United Nations resolutions urging such action.[63]

In October 2005, exasperated by Ethiopia’s refusal to comply with the boundary ruling, Eritrea refused to cooperate with the United Nations Mission in Eritrea and Ethiopia (UNMEE)—a monitor mission—and forbade its helicopters in Eritrean airspace.[64] As a result, on July 30, 2008, the United Nations Security Council unanimously adopted Resolution 1827,[65] which terminated the United Nations Mission in Eritrea and Ethiopia.[66] The Resolution again implored Eritrea and Ethiopia to refrain from threats or force against one another.[67] Resolution 1827 was one of twenty-eight resolutions the United Nations Security Council passed between 1998 and 2008, deploring the violence and demanding an immediate end to hostility, which the two countries continued to ignore.[68]

At the same time, the Commission continued its work and sought to find liability for the conflict of 1998 to 2000.[69] It began this work in March 2001 and came to a conclusion on this issue in December 2005.[70] In addition to the question of liability, the Commission rendered multiple “partial awards.”[71] The Commission heard arguments concerning its first substantive claim, concerning prisoners of war, in December 2002.[72] The Commission submitted a partial award for this claim on July 1, 2003.[73] The Commission held a second hearing, concerning claims associated with the central front, in November 2003, which was followed by another partial award on April 28, 2004.[74] In all of these judgments, the Commission found violations of international law on both sides.[75]

In April 2005, the Commission held another hearing concerning claims that included Eritrea’s Western Front, Aerial Bombardment, Pensions, Diplomatic, and Non-Resident Property Loss Claims, in addition to Ethiopia’s Western and Eastern Front, Port, Economic Loss, Diplomatic, and Jus ad Bellum (justification for going to war) claims.[76] It rendered partial awards for all these claims on December 19, 2005.[77] One of the most important conclusions of these hearings was that Eritrea actually caused the initial conflict when it carried out a series of unlawful armed attacks against Ethiopia, violating Article 2, Paragraph 4 of the Charter of the United Nations, which prohibits the threat or use of force against the territorial integrity or political independence of any state.[78] However, the Commission reserved judgment and damage amounts for a later final award determination.[79]

D. The Commission Announces Its Final Damages Award Determinations

On August 17, 2009, the Commission rendered two final awards on damages.[80] One award was to Eritrea for $161,455,000, plus an additional $2,065,865 for six individual claimants, and the other award was to Ethiopia for $174,036,520.[81] This left a difference of $10,515,655 that Eritrea owed to Ethiopia. These awards were for the claims that the Commission heard in previous hearings between July 1, 2003, and December 19, 2005, for which it had only made partial awards and no determination on damages.[82]

In reference to these awards, Martin Plaut, an Africa analyst for the British Broadcasting Corporation, very succinctly explained that the “real tragedy is that the money, like the rest of the internationally supported peace process, will settle very little.”[83] The following sections of this Note seek to explain the validity of Plaut’s assertion and to offer some possible alternatives that the countries and the international community could have taken to avoid such an unfortunate result.

III. THE COMMISSION FAILED TO PROVIDE COMPENSATION TO THE VICTIMS AND AWARDS THAT WOULD MEANINGFULLY FURTHER PEACE AND SECURITY IN THE REGION

A. At Best, the Final Awards Fund the Coffers of the Warring Parties But Do Not Adequately Assure Any Compensation to the Actual Victims for the Harm They Suffered During the Conflict

The damages the Commission granted to the two countries were primarily for harms suffered by individuals, yet these amounts were not awarded to the individuals themselves. For example, the Eritrea award included damages for: loss of business property and buildings; injuries to civilians due to loss of health care caused by the conflict; damage to cultural property; mistreatment of prisoners of war; failure to prevent rape; forcible expulsions; arbitrary deprivation of citizenship for dual citizens; failure to provide care to expelled nationals; failure to provide compensation for vehicles requisitioned by nonresident citizens; other property losses of nonresident citizens; imprisonment under harsh conditions for civilians on security charges; violations of diplomatic premises and property; and interference with departing diplomats.[84]

This discrepancy was also true for Ethiopia’s claims that included damages for: death, injury, disappearance, forced labor, and conscription of citizens; failure to prevent rape; destruction and looting of houses; looting and damage to government buildings and infrastructure; destruction and looting of religious institutions; mistreatment of prisoners of war; failure to protect citizens from threats and violence; failure to ensure Ethiopian citizens in Eritrea access to employment; failure to assure that Ethiopians received medical care comparable to Eritrean citizens; wrongful detention of civilians; failure to protect property of detainees expelled from Eritrea; and failure to ensure the safe repatriation of departing Ethiopians.[85]

As the Commission found in an earlier partial ruling that ultimate liability for the conflict laid with Eritrea, the Ethiopian award included damages for jus in bello (conduct during war) claims and jus ad bellum (justification for going to war) claims.[86] Therefore, the Ethiopian award also included jus ad bellum damages for: human suffering and loss of income associated with internal displacement of persons; civilian death and injury; damage to civilian property; damage to public buildings and infrastructure; looting and destruction of religious institutions; death and injury caused by Eritrean landmines; destruction of government facilities and other government losses; lost profits for certain private businesses; and reconstruction and assistance to internally displaced persons.[87]

More significantly, individual human beings felt the consequences of these violations, such as the claims for rape and forced labor; however, the Commission awarded the final monetary damages solely to the States, and not to the individual victims or to the States as trustees for the individual victims.[88] In its final decisions, the Commission repeatedly “encouraged” the parties to consider how the awards could be used to accomplish humanitarian objectives or compensate the victims,[89] and it also requested the parties explain how they intended to distribute the damages.[90] Yet there was no demand for the States to take any specific actions with the awards.[91] Because the awards were not conditional on the countries’ compensating the individual victims within their borders, the final awards will essentially fill the general coffers of the respective countries to be spent as the countries see fit. This result, however, was not solely the fault of the commissioners when reaching their conclusion on damages. It was necessary for the Commission to award damages in this way because, for the most part, the countries only filed claims for nation-to-nation harms, rather than harms that the nations caused against individual victims.[92]

The Commission established a mass claims process by which the parties could have filed claims for individuals.[93] This process included fixed tiers of compensation for individual claims.[94] The different tiers depended upon how many categories of damages corresponded with each individual’s claim.[95] The two parties were to provide standard paper and electronic claim forms, based on the forms that the Commission planned to prepare for any individual claims.[96] The Commission intended to use computers and docket management software to select sample groups, using expert advised characteristics as a guide when setting sufficient compensation for certain sub-groupings of claims.[97] This procedure was a very innovative and progressive measure that could have streamlined the imposing project.

Nonetheless, one of the major failures of this scheme was that the Algiers Agreement did not address any mechanism to inform potential claimants of their eligibility to file claims under the Commission.[98] Instead, this responsibility was left to the States themselves.[99] Additionally, the Algiers Agreement did not give priority to these individual claims over the nation-to-nation claims, nor did it mandate that the nations file these individual claims if they decided to file nation-to-nation claims.[100] Consequently, despite the availability of this mass claims option, the parties chose only to file government-to-government claims, with the exception of six claims which Eritrea filed on behalf of six individuals whom Ethiopia had expelled.[101]

These problems might not have resulted in the abandonment of individual claims had it not been for the deadline that the Commission set for the collection of claims and the time that it would take to adequately collect individuals’ claims. The mandate for the Commission called for a three-year deadline to arbitrate all claims.[102] Accordingly, to adhere to this timetable, the Commission only accepted claims filed within the first year of its existence, extinguishing all later claims.[103] Further, the Algiers Agreement provided no procedure for extending this deadline.[104] If not for this deadline, then the parties might have considered collecting individuals’ claims and utilizing the mass claims procedure.

The Commission actually noted that filing inter-State claims instead of individual claims was understandable, “given limits of time and resources.”[105] Additionally, experts from the International Organization for Migration (IOM), who were serving the Commission as technical consultants, also expressed the opinion that an adequate mass claims procedure required more time to collect claims than the designated one-year deadline.[106] Paradoxically, this deadline was a significant factor in inhibiting the parties from filing individuals’ claims, as the deadline was a result of the Commission’s attempt to hasten its work to meet the “recurring concern that the proceeds accruing from the damages proceedings be used by the Parties to assist civilian victims of the conflict.”[107]

The deadline set by the Commission does not solely explain why the parties chose to abandon the mass claims option. In addition to the deadline, there appears to have been a lack of will among the parties to find compensation for individuals who suffered harm. This is first illustrated by the fact that neither party requested nor attempted to extend the filing deadline.[108] Both Eritrea and Ethiopia disregarded the time limit and attempted to file inter-State claims past the deadline, yet never attempted to file individuals’ claims.[109] Furthermore, once it became clear that the three-year timetable to handle all claims was unrealistic, the commissioners agreed to extend the three-year deadline.[110] It is reasonable to assume that if the commissioners were willing to extend the deadline for the Commission’s work, then they may have been willing to extend the filing deadline if the parties had expressed such a desire. Additionally, a lack of will to file individual claims is also evidenced by the fact that the parties did not push for separate individual claims, despite having already documented individuals’ claims on claim forms in an effort to facilitate the preparation of damages for the States’ own actions.[111] There was actually a system in place for individual claims, but the two countries involved did not care to use it, the Commission made it harder for these countries to use it, and the Commission never organized the process in a way that forced the parties to give priority to individual claims for humanitarian violations.

B. The Ten Million Dollar Difference Between Ethiopia’s Award of $174,036,520 and Eritrea’s Award of $161,455,000 Did Not Provide Adequate Compensation

An award of over a hundred million dollars may seem like a lot of money to the average person, but to the average nation state it is a pittance. Yet an award in this range could be significant to an extremely impoverished country. The award is sizeable enough to provide some sort of deterrence against disapproved future actions and could provide at least some relief to victims. This is probably the thought process of the Commission when it made its final awards.

However, in a broader context, these awards are drastically insufficient. Because the damages are an exchange of money between states, the majority of, or entirety of, the award one country receives will only cover the amount owed to the other. This exchange results in an approximately $10 million difference that Eritrea owes Ethiopia. This is only 0.25% of the annual gross domestic product (GDP) of Eritrea,[112] which has a relatively small GDP as one of the poorest nations in the world.[113] The amount is insignificant in part because the Commission heavily discounted the final award amounts, leaving it impossible for either party to be fairly compensated.

Even if the full amount of the final awards went directly to compensating victims of Ethiopia and Eritrea’s unlawful actions then there still would not be just compensation because the amount was inadequate. The commissioners had the herculean task to wade through the mass of information which the two parties provided it to concoct a reasonable figure for damage awards. After tabulating reasonable amounts, however, the Commission then discounted many of these amounts depending on the reliability of the evidence,[114] and then discounted these amounts even further due to consideration of the wealth, or lack thereof, of the two countries.[115] This deep, and in many cases seemingly arbitrary, discounting resulted in final award amounts that were far from the amounts the Commission determined as fair compensation for the parties’ wrongful actions.

In the opening paragraphs of the final award decisions, the Commission explained that the awards “probably do not reflect the totality of damages that either Party suffered in violation of international law. Instead, they reflect the damages that could be established with sufficient certainty through the available evidence in the context of complex international legal proceedings carried out by the Parties with modest resources and under necessary pressures of time.”[116]

These opening lines explain the balance the Commission attempted to strike between certainty and fair compensation. Essentially, it concedes that the awards are not adequate, and reveal that there are issues with the Commission’s structure that inherently restricted it from allowing a fair resolution of the circumstances.

The Commission depended solely upon the information that the two parties provided to it. Other organizations could have presented evidence to the parties, but not directly to the Commission.[117] Additionally, the Commission did not have the staff or resources to conduct its own investigations.[118] Therefore, it often did not have sufficient evidence and had to resort to employing “estimation” or “guesswork” to determine the amount of compensation for particular claims.[119] For example, the Commission found that the Eritreans suffered significant losses of property at the hands of Ethiopian forces during the invasion,[120] yet the evidence presented did not quantify the magnitude of that injury.[121] The Commission did indicate that the evidence was available, but that the Commission “d[id] not have time or resources” to review the information.[122] Instead, the Commission relied upon “a reasonable estimate of the losses.”[123] These estimates are problematic.

When there was insufficient evidence for a claim, as often was the case, this type of “guesswork” became the default method for determining a conclusion.[124] The result had to be either an amount that was completely false, because it was the product of a guess, or grossly ineffective, as the Commission was erring on the side of caution in that case.[125]

In addition to the problems with the first type of discounting, the Commission also discounted to account for the wealth of the two countries.[126] This type of discounting was not totally unreasonable. As the Commission points out, the amount of damages that Ethiopia requested was three times the entire GDP of Eritrea in 2005.[127] The Commission was therefore concerned that since the countries were so poor and the damages so high, serious damages would further destabilize peace in the region, similar to what happened with the Treaty of Versailles and Germany after World War I.[128]

Furthermore, the Commission was concerned that because the countries were so poor, large awards would cripple the governments’ ability to pay for the essential services that their people needed, and would force the governments to neglect their obligations under the International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights.[129] These were serious considerations. The Commission’s purpose was to foster peace, stability, and compensate victims, not to further destabilize the region or take away services from the survivors of war. However, as reasonable as it sounds, this conclusion is problematic for various reasons.

First, the Commission’s choice to abandon true compensation and adequate justice for victims in favor of political stability was just as likely to foster resentment and instability as payment of large awards. The Commission’s choice assured that the victims of the war would never receive the compensation they were due for their harms. Second, the Commission took a short-term view of the problem; there are countless examples of extremely poor countries that in a relatively short period of time transformed into significant global economic leaders, such as China or Germany.[130]

Unlike the Treaty of Versailles, the Algiers Agreement provided no mechanism for enforcement or a timetable for distribution of the awards.[131] Consequently, the Commission could have provided that repayment for the majority of the awards be dependent upon the size of the countries’ economies, not upon any time deadline. If the countries were to become able to pay the damages without causing detriment to their own citizens, then they would. Otherwise, the amounts that the parties owed could stay close to the current discounted awards. This payment structure would have at least allowed for an opportunity to provide the victims with just compensation instead of discounted awards, a decision that guarantees that there will be no comparable opportunity.

The problems related to the discounting of the awards and the fact that the awards negate each other would not be as problematic if the money exchanged between the two countries went directly to victims rather than to the other State’s general coffers. That still would have stood in the way of fair compensation for everyone, but it would not have been as extreme, and at least could have provided compensation for some. For example, the Commission awarded Eritrea and Ethiopia each two million dollars in parallel awards “for failing to prevent the rape of known and unknown victims in the towns of Senafe, Barentu and Teseney.”[132] The Commission did so with the “hope that Eritrea (and Ethiopia) [would] use the funds awarded to develop and support health programs for women and girls in the affected areas.”[133] In reality, Eritrea and Ethiopia will merely exchange checks for identical sums of money. Essentially, the result will be the same regardless of whether the Commission awards ten times the amount of money, or awards no money at all. On the other hand, if the States pay the rape victims directly or pay organizations that provide support to the rape victims, then the award, regardless of the amount, would at least have some impact.

C. It Is Doubtful the Final Awards Furthered Peace and Stability Between the Two Countries

Aside from the issue of just compensation, a serious question arises as to whether the final award will truly further the peace and stability between Eritrea and Ethiopia. This was the primary goal of the peace which the parties brokered in Algiers and from which the Commission arose.[134] The long term impact of the final awards is still unclear; nevertheless, the immediate effects are troubling. Neither Eritrea nor Ethiopia has expressed satisfaction with the results of the Commission. In the opening paragraphs of the final award decisions, the Commission noted that the “awards of monetary compensation for damages are less—probably much less—than the Parties believe to be due.”[135]

The Ethiopian government has explicitly and publically expressed its dissatisfaction with the Commission’s ruling.[136] Eritrea has accepted the award due to the final and binding nature of the Algiers Agreement, but has also expressed reservations about the final award amounts.[137] Additionally, Eritrea continues to express its dissatisfaction to the United Nations Security Council over the international community’s treatment of the conflict.[138] This dissatisfaction has partially resulted in Eritrea isolating itself from the international community.[139] As of the time of this Note, Ethiopia has still refused to allow the United Nations to demarcate the border with Eritrea.[140] Eritrea has, as a result, further isolated itself from the international community, and no money has been exchanged between Eritrea and Ethiopia for the victims of the border war. Relations between the parties have not progressed since they brokered the Algiers Agreement, despite the ten years’ work of the Commission.[141]

IV. INSTEAD OF A TRADITIONAL ARBITRATION MODEL, THE COMMISSION SHOULD HAVE MORE HEAVILY RELIED UPON THE MODEL OF THE UNITED NATIONS COMPENSATION COMMISSION AND THE COMMISSION FOR REAL PROPERTY CLAIMS OF DISPLACED PERSONS AND REFUGEES

This Note has presented flaws in the Commission, flaws in the final awards, and the consequences of these problems. The solution to many of these problems are systematic and could have been avoided if the structure of the Commission was, from the beginning, dramatically altered to match modern mass claim techniques utilized by the United Nations Compensation Commission (UNCC) and the Commission for Real Property Claims of Displaced Persons and Refugees.

A. The Success of the United Nations Compensation Commission in Resolving Mass Claims Efficiently and with Relative Speed

The UNCC is a subsidiary organ of the United Nations Security Council, which the Security Council established in 1991 to compensate victims of Iraq’s invasion and occupation of Kuwait.[142] The UNCC did not have the task of deciding liability, but only determining damages, as the Security Council had already found that Iraq was liable for any losses that resulted from the invasion or occupation.[143] The UNCC also had a similar task to that of the Commission’s after it had made its partial rulings; however, that is the extent of the similarities between the two bodies.

As the Secretary-General of the United Nations stated:

[T]he Commission is not a court or an arbitral tribunal before which the parties appear; it is a political organ that performs an essentially fact-finding function of examining claims, verifying their validity, evaluating losses, assessing payments and resolving disputed claims; it is only in this last respect that a quasi-judicial function may be involved.[144]

The damages that the UNCC established were drawn directly from a special account that sales of Iraqi oil funded.[145] The Secretary-General, however, initially recommended that the amounts paid by Iraq should not exceed thirty percent of the value of its oil exports.[146] The amount was ultimately reduced to twenty-five percent, pursuant to Security Council Resolution 1330, but the UNCC enacted the general scheme that the Secretary-General recommended.[147]

The UNCC has been a resounding success. Since the Security Council established the UNCC in 1991, victims have filed more than 2.6 million claims and have sought a total of approximately $368 billion in compensation.[148] Out of these claims, the UNCC awarded compensation for 1,543,619 claims and, as of January 27, 2011, distributed a total of $31,303,180,576.[149] The vast majority of these claims came from individuals for relatively small amounts.[150] Victims filed all of these claims in a six-year span, with many of the claims falling under a January 1, 1995, deadline; other claims falling under a January 1, 1996, deadline; and the last group of claims falling under a February 1, 1997, deadline.[151] The UNCC finished its processing task in 2005 and made its last payments to individuals in 2007.[152]

The UNCC was able to efficiently resolve a huge volume of cases and distribute a large volume of payments, while still safeguarding against frivolous claims, because it utilized a modern approach to mass claim processing.

One technique that the UNCC employed was to break down the types of claims which people could file into categories.[153] Four of these categories provided for individual claims, one for corporate claims, and one for government claims.[154] The UNCC dealt with the individual claims first and then addressed the other claims.[155] This assured that priority was given to individual victims before governments. It also grouped and processed claims by common legal, factual, and valuation issues.[156] Norbert Wühler, a former UNCC chief, observed that, “[g]iven the traditional emphasis in previous claims resolution processes on the losses suffered by governments and corporations, this humanitarian decision to focus first on urgent individual claims marked a significant step in the evolution of international claims practice.”[157]

Another UNCC innovation was the use of computer software to match claims and information sampling to examine claims against existing databases and statistical models.[158] This system contributed to the speed and efficiency with which it was able to work, as the UNCC could then quickly determine whether there was documentation to justify an award.[159]

The UNCC also employed two different evidentiary standards: one for individual claims and one for businesses or government claims.[160] “Appropriate evidence” of the circumstances and amount of the loss was sufficient as long as the evidence reached a “reasonable minimum” for the former.[161] The UNCC, however, demanded documentation and other appropriate evidence “sufficient to demonstrate the circumstances and amount of the loss” for the latter.[162]

In order to verify and evaluate the claims and evidence, the UNCC made considerable use of experts, consultants, and other specialists.[163] In addition to relying on experts, the UNCC had access to several fact finding studies that the United Nations had commissioned shortly after the liberation of Kuwait, but before the filing of claims was even an option.[164] These studies provided essential information for the UNCC in its work.[165] These reports were effective because they were prepared under the authority of the United Nations and not one of the interested parties.[166]

The UNCC also created specific claim forms that it then distributed to governments.[167] A standardized claim form allowed the UNCC to more easily process the forms and avoid the issues with the claim forms which Eritrea and Ethiopia created.[168] Governments and organizations filed individual claims with the UNCC; however, the governments acted as trustees for individuals.[169] Conversely, the Commission processed individuals’ claims only as a means to reach a conclusion on the two government parties’ claims.[170]

Much of the strength of the UNCC rested in its ability to safeguard individual claimants by using an inquisitorial process rather than an adversarial process. As one law professor explained:

The use of an inquisitorial type of procedure for the claim resolution process has been described as the “signal distinction” of the Commission. . . . [A]n adversarial process would not have been able to achieve fundamental fairness for the individual claimants or Iraq. [It] would have likely resulted in patently unfair outcomes due to decisions based primarily on technical grounds, rather than the substantive merit of the claims.[171]

A judicial or arbitral solution is useful in many circumstances but the organizers of the UNCC recognized that, in a situation involving mass claims for humanitarian violations, an inquisitorial model is more appropriate.[172] This had become apparent, in part, when past attempts to utilize the former model resulted in chaos.[173] The unwieldy Iran–United States Claims Tribunal, a tribunal based on the traditional arbitration model similar to that of the Commission, is one example.[174] The Iran–United States Claims Tribunal worked at a very slow pace and had great difficulty with individual claims due to a lack of causation evidence.[175] The Commission should have learned from the past and referred to the UNCC’s established practices.

B. The Success of the Commission for Real Property Claims of Displaced Persons and Refugees in Resolving Mass Claims Efficiently and with Relative Speed

The Commission for Real Property Claims of Displaced Persons and Refugees (CRPC) was an international commission established to process and resolve claims by Bosnians who sought to reacquire property lost or left in the Bosnia–Herzegovina conflict of 1992 to 1995.[176] The CRPC was established in 1996 and completed its work in 2003.[177] During this period, the CRPC rendered a total of 311,757 decisions,[178] an incredible number of claims for such a short period of time. These decisions “are estimated to have benefitted close to one million people.”[179]

Like the Commission, the CRPC arose out of a peace agreement, the Dayton Peace Agreement, which sought to end the Bosnian war.[180] The CRPC accepted claims directly from individuals.[181] First, staff members interviewed claimants to gather evidence and then sorted the information in a computer database.[182] The CRPC also crafted the forms for the claimants to fill out so that they were comprehensive and user-friendly.[183] To make a binding decision, a panel of judges then examined the evidentiary record, information from the interviews, and any existing official registries.[184] Like the UNCC, there was no adversarial process.[185]

The CRPC returned the title of property to many individuals; however, it did so knowing that the local authorities were still responsible for facilitating the return of all real property.[186] This means that a remedy for these victims might not be available for some time, but at least the victims have the authority for future legal action when it becomes politically feasible.[187] This is the appropriate long-term view of remedies that the Commission should have taken.

C. A Similar Political Commission Solution is More Viable than a Judicial Solution Due to the History of, and Current Power Struggle Between, Eritrea and Ethiopia

The UNCC, the CRPC, and the countries involved in those two structures have many similarities to the Commission and the parties involved in that Commission. The countries involved in all of these, for the most part, were relatively poor and had recently been through significant military conflicts.[188] Indeed, each crisis is unique and will require its own approach. For example, Iraq is unique in that it had a strong source of revenue in oil.[189] Despite these differences, there are still enough similarities between these structures that there will always be important lessons from which future commissions can draw. It is evident that the Commission could have achieved more success by more closely following the examples of prior mass claims processes.

V. TIME, RESOURCES, AND WILL ARE POTENTIAL OBSTACLES TO SELECTING AND IMPLEMENTING A PROCESS THAT UTILIZES SUCCESSFUL FEATURES OF PAST MASS CLAIMS MECHANISMS, BUT THESE OBSTACLES ARE NOT INSURMOUNTABLE

There are justifiable reasons why the Commission handled only inter-State claims and followed a traditional arbitration model, albeit with a few innovative measures, instead of handling individual claims through a modern mass claims process like the aforementioned commissions. The most significant reasons are time, resources, and will; however, in hindsight, these three impediments are not impassable road blocks.

Arguably, the most imposing barrier is the lack of money and resources. The Commission repeatedly bemoaned its lack of sufficient resources and how this inhibited them from performing at a high level.[190] At one point, the Commission directly contrasted itself to the UNCC, explaining that it could not achieve what the Compensation Commission did for lack of resources.[191] These complaints are accurate and fair. Both the UNCC and the CRPC had much larger budgets than the Commission and employed much larger staffs. The administrative costs of the UNCC from the time it began through 2005 totaled $362.6 million.[192] Conversely, the CPRC had a much smaller budget; it used approximately $33.49 million from 1997 to 2003.[193]

Consequently, both commissions had a much larger working staff than the Commission. The UNCC had “[a]t its height . . . approximately three hundred professional and general services staff.”[194] The CRPC even had over 250 staff members running its operations.[195] Alternatively, the Commission was comprised of only five commissioners.[196] As opposed to the other commissioners, these commissioners worked only on a part-time basis.[197] The Permanent Court of Arbitration provided some support, but the Commission employed no full-time staff.[198] The actual expense figures for the Commission have not been made public yet, but it is known that it was quite modest in relation to these other commissions.[199]

As modest as the budget may have been, it did not have to stand in the way of utilizing an efficient and effective mass claims procedure. First, gathering and sharing technologies developed by past tribunals should lower the cost of future ones.[200] Accordingly, the Commission did not have to reinvent the wheel and its costs did not have to be as significant as that of the UNCC. Second, because the Commission was tailored as an adversarial model, both Eritrea and Ethiopia must have spent a substantial sum on attorneys’ fees and expert legal consultants, which instead could have been used to supplement the budget. For five to ten years, Ethiopia employed eleven lawyers and consultants and Eritrea employed seventeen lawyers and consultants to work on their cases before the Commission.[201] Third, the necessary costs are not truly overly imposing. For all that it did, the UNCC’s budget was only actually 0.1% of the amount of claims asserted before the Commission.[202] Furthermore, the entire cost of the UNCC’s fourteen years of operation was roughly only a half a percent of Ethiopia’s annual gross domestic product[203] and only nine percent of Eritrea’s annual gross domestic product.[204]

Additionally, the costs should not have barred a modern mass claims process that would have been more successful in providing just compensation, because the Commission had already done a lot of the work in creating a model for such a procedure.[205] This underscores how the excuse of funding can really be a veiled justification when there is a lack of will. The lack of will was not only present within the Commission and the participating States, but also in the international community. The amount of money necessary for a mass claims procedure is very insignificant in relation to the global economy, and it is not unprecedented that, in the interest of peace and security, the international community has funded similar projects. For example, the majority of the CRPC’s budget was paid by a collection of international states.[206] Furthermore, the international community spent $1.32 billion, a significantly higher amount than would be necessary for a mass claims procedure, to support the UNMEE mission.[207]

Another issue is the source of funds necessary to fairly compensate the victims. In Iraq, the UNCC was able to levy a portion of Iraq’s oil revenue to compensate the victims,[208] but neither Eritrea nor Ethiopia has an industry that is as reliably profitable.[209] Nevertheless, if the countries were able to find enough resources to engage in war, then there should have been no excuse to find the money necessary to compensate the victims of their war. The amount spent on the war was not negligible either; Ethiopia paid approximately three billion dollars.[210]

Furthermore, compensation need not be immediate, as it could be a long-term, structured project. The possibility of compensation in the future is better than none at all. As the citizens of the countries involved are very poor, the amounts necessary for individual claims should be relatively insubstantial. This was the case with the UNCC where the amounts for individual claims were relatively small amounts.[211] However, small awards can make a huge difference to these individual victims.

Before the UNCC began, there were critics who claimed that the project was doomed because there would never be enough money to award all of the claims.[212] This was not a reason to abandon the project, however. Indeed, the UNCC was consequently able to compensate a large number of victims.[213]

The final substantial impediment is time. Dr. Norbert Wühler, the director of the IOM, highlighted that “in every mass claims programme, a tension exists . . . between the search for individual justice and fairness and the requirement of an expedient process that resolves all the claims within a reasonable time period.”[214] The Commission stressed that many of the organizational and procedural steps it took were due to a desire to finish proceedings as quickly as possible and help the victims immediately.[215] This, however, effectively sacrificed actual and just compensation to the victims. Instead, the Commission should have committed more time to making its determination, if it meant that ultimately the Commission could fairly compensate the victims.

Further, both the UNCC and the CRPC illustrate that the time needed by the Commission to adequately compensate the victims should not have been much longer than the Commission took to conclude. The Commission spent almost ten years to reach a final decision on awards.[216] Furthermore, there has yet to be any payments made.[217] Alternatively, the UNCC started in 1991 and had completely finished processing claims by the end of 2005.[218] It made its last payments in 2007.[219] The CRPC was established in 1996 and ended in 2003.[220] The difference between these three commissions is negligible, considering the benefit that could have been gained by taking the slightly longer approach.

VI. CONCLUSION

The Commission has been successful in many regards. Professor Won Kidane, who worked with Ethiopia during the Commission, described many of its successes:

(1) It has contributed to the development of norms of international humanitarian law in the civil compensation context, (2) it has significantly contributed to the emerging consensus regarding the status of some norms of international humanitarian law as customary norms, (3) it has identified gaps in the existing standards of international humanitarian law and suggested the development of new norms to fill those gaps, (4) it has refined procedures and evidentiary standards of adjudication for mass claims processes, (5) it has clearly demonstrated that there is a feasible way to determine civil liability for violations of international humanitarian law occurring during and in the aftermath of armed conflict for the compensation of victims of such violations, and most importantly, (6) it has shown that determination of civil liability is a realistic alternative and an important supplement to criminal prosecution as a mechanism of enforcement of violations of humanitarian law.[221]

Absent from this list, however, is “relief and compensation for the victims of Eritrea–Ethiopia border war” and “peace and security in the region.”

The Algiers Agreement provided a mandate for the Commission that should have forced more individual claims, instead of allowing only inter-State claims.[222] There are good examples in recent history that could have guided the Commission in processing these claims, resulting in more substantial benefit to the individual victims.

In particular, there are five primary lessons that the Commission should have learned. First, and most importantly, the Commission should have focused on individuals instead of governments. The Commission created a mass claims process, but it did not necessitate its use or prioritize individual claims over government claims in the way that the UNCC did. Second, the Commission should have allowed the time necessary to run a modern mass claim process. Both the CRPC and the UNCC were relatively short enterprises with ultimately very little benefit in trying to keep stringent deadlines. Third, the Commission should have abandoned its reliance on an adversarial approach, and instead should have approached the violations of humanitarian international law as an impartial investigatory organ like the CRPC and the UNCC. The Commission also should have developed standardized claim forms, such as the ones the CRPC and the UNCC utilized, to assure consistency and efficiency. This would have reduced both costs and time, while still allowing the Commission the flexibility to award damages more easily to the victims of the war.

Fourth, the Commission should have allowed impartial experts and organizations to file information directly to the Commission, instead of through the government parties, and should have conducted more of its own independent research, much like how the UNCC had its own unbiased reports on which to rely. This would have made it easier for the Commission to finish its work more easily and more sufficiently. Lastly, the Commission should have focused on remedies through a long-term lens. Instead of discounting the amounts necessary for compensation, the Commission should have followed the example of the CRPC and granted remedies that might not have been as practical or enforceable currently, but that could have become more meaningful and feasible in the future.

The Commission and its commissioners worked extremely hard and were extremely clever in their approach to problems that arose. Nevertheless, due to many circumstances in and out of their control, the result was a negligible award that most likely will not justly compensate a majority of the victims or significantly further peace between Eritrea and Ethiopia. This should serve as an example to the international community when a similar situation arises in the future—that it is better and not much more costly (in time or resources) to implement a modern mass claims process that is effective in compensating victims and furthering humanitarian goals than it is to adhere to a traditional arbitration or judicial model.

** I would like to acknowledge Dawn Shock who first brought the Eritrea–Ethiopia Claims Commission to my attention and Cesare Romano who helped me avoid some serious pitfalls when I first began structuring my thoughts for this note. I would also like to dedicate this to Josh Dybnis who would have scrutinized this entire Note purely to challenge me on every argument and assertion.

1 . See Final Award—Ethiopia’s Damages Claims (Eri. v. Eth.), 26 R.I.A.A. 631, ¶ 5 (Eri.–Eth. Claims Comm’n 2009) [hereinafter EECC Ethiopia Final Award].

2 . Eritrea Takes Advantage Over Ethiopia in War Damages Award, Reporter (Aug. 22, 2009), http://en.ethiopianreporter.com/index.php?option=com_content&task=view&id=1547.

3 . Id.

4 . Duncan Hollis, Eritrea–Ethiopia Claims Commission Awards Final Damages, Opinio Juris (Aug. 19, 2008, 9:42 AM), http://opiniojuris.org/2009/08/19/Eritrea–Ethiopia-claims-commission-awards-final-damages.

5 . Id.

6 . The money will go to the governments because the claims were only filed for government-to-government violations; the Commission, however, “encouraged the Parties to consider how, in the exercise of their discretion, compensation can best be used to accomplish the humanitarian objectives” of their peace agreement. EECC Ethiopia Final Award, supra note 1, ¶ 25. Without any official mandate it is dubious that the money will actually reach victims, as explained later in this Note.

7 . See Eritrea Country Profile, BBC News (Nov. 30, 2010), http://news.bbc.co.uk/2/hi/ africa/country_profiles/1070813.stm.

8 . See Partial Award: Civilian Claims—Eritrea’s Claims 15–16, 23, 27–32 (Eri. v. Eth.), 26 R.I.A.A. 197, 205 (Eri.–Eth. Claims Comm’n 2004) [hereinafter EECC Civilian Claims]; Christine Gray, The Eritrea/Ethiopia Claims Commission Oversteps its Boundaries: A Partial Award?, 17 Eur. J. Int’l L. 699, 700 n.3 (2006).

9 . See Permanent Court of Arbitration, International Mass Claims Processes: Legal and Practical Perspectives 33 (Howard M. Holtzmann & Edda Kristjánsdóttir eds., 2007).

10 . Id.; UNMEE: United Nations Mission in Ethiopia and Eritrea, Background, United Nations, http://www.un.org/depts/dpko/missions/unmee/background.html (last visited Sept. 6, 2011) [hereinafter Background] (“As of March 2000, it was estimated that over 370,000 Eritreans and approximately 350,000 Ethiopians had been affected by the war. The humanitarian situation in parts of Ethiopia was exacerbated by the severe drought, which led to the emergence of a major food crisis with almost 8 million people affected.”).

11 . Gray, supra note 8, at 700.

12 . See id.

13 . See id.

14 . Won Kidane, Civil Liability for Violations of International Humanitarian Law: The Jurisprudence of the Eritrea–Ethiopia Claims Commission in the Hague, 25 Wis. Int’l L.J. 23, 28 (2007).

15 . The Organization of African Unity is now known as the African Union. Organization of African Unity (OAU)/African Union (AU), Dep’t Int’l Relations & Cooperation, S. Afr., http://www.dfa.gov.za/foreign/Multilateral/africa/oau.htm (last visited Sept. 6, 2011).

16 . See Gray, supra note 8, at 701.

17 . See id. at 701–02.

18 . See id. at 702. Oxford Professor Christine Gray argues that Eritrea’s concerns were ultimately justified by the Commission’s Partial Award on jus ad bellum claims, which assigned liability for the conflict to Eritrea. Id.

19 . Id.

20 . See Background, supra note 10.

21 . See Gray, supra note 8, at 702.

22 . See id.

23 . See id.

24 . See Background, supra note 10; S.C. Res. 1298, ¶ 6, U.N. Doc. S/RES/1298 (May 17, 2000).

25 . Agreement on Cessation of Hostilities Between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia, Eri.–Eth., June 18, 2000, 2138 U.N.T.S. 37273.

26 . Agreement Between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, Eth.–Eri., Dec. 12, 2000, 40 I.L.M. 260 [hereinafter Algiers Agreement]; see also Gray, supra note 8, at 703; Identical Letters Dated 12 December 2000 from the Permanent Representative of Algeria to the United Nations Addressed to the Secretary-General and the President of the Security Council, U.N. Doc. S/2000/1183 (Dec. 13, 2000).

27 . Id.

28 . Permanent Court of Arbitration, supra note 9, at 34.

29 . See id.

30 . See Algiers Agreement, supra note 26, arts. 3–5.

31 . See Gray, supra note 8, at 703.

32 . See Algiers Agreement, supra note 26, art. 5, ¶ 1; Gray, supra note 8, at 703.

33 . Algiers Agreement, supra note 26, art. 5, ¶ 1.

34 . See Permanent Court of Arbitration, supra note 9, at 51.

35 . See Eritrea–Ethiopia Claims Comm’n, Rules of Procedure, art. 1, ¶¶ 1–2 (2000), available at http://www.pca-cpa.org/upload/files/Rules%20of%20Procedure.PDF; Jon Lockart & Tania Voon, Reviewing Appellate Review in the WTO Dispute Settlement System, 6 Melb. J. Int’l L. 474, 481 (2005).

36 . Eritrea–Ethiopia Claims Comm’n, Rules of Procedure, supra note 35, art. 1, ¶ 2.

37 . See Algiers Agreement, supra note 26, art. 5, ¶ 1.

38 . See Partial Award: Central Front—Ethiopia’s Claim 2 (Eri. v. Eth.), 26 R.I.A.A. 155, ¶ 13 (Eri.–Eth. Claims Comm’n 2004); Partial Award: Prisoners of War—Eritrea’s Claim 17 (Eri. v. Eth.), 26 R.I.A.A. 23, ¶ 31 (Eri.–Eth. Claims Comm’n 2003) [hereinafter EECC Prisoners of War].

39 . See Kidane, supra note 14, at 29.

40 . See id.

41 . See Permanent Court of Arbitration, supra note 9, at 308.

42 . See Algiers Agreement, supra note 26, art. 5, ¶ 15; Permanent Court of Arbitration, supra note 9, at 362–63.

43 . Algiers Agreement, supra note 26, art. 5, ¶ 2.

44 . See Permanent Court of Arbitration, supra note 9, at 308.

45 . Id.

46 . See Algiers Agreement, supra note 26, art. 5, ¶ 17 (“Decisions and awards of the commission shall be final and binding. The parties agree to honor all decisions and to pay any monetary awards rendered against them promptly.”).

47 . See id.

48 . See id. art. 5, ¶ 12.

49 . Permanent Court of Arbitration, supra note 9, at 162.

50 . The Algiers Agreement states that “[a]ll claims submitted to the Commission shall be filed no later than one year from the effective date of this Agreement . . . . [S]uch claims which could have been and were not submitted by that deadline shall be extinguished, in accordance with international law.” Algiers Agreement, supra note 26, art. 5, ¶ 8.

51 . See Kidane, supra note 14, at 48–51.

52 . See Final Award—Eritrea’s Damages Claims (Eri. v. Eth.), 26 R.I.A.A. 505, 518 (Eri.–Eth. Claims Comm’n 2009) [hereinafter EECC Eritrea Final Award].

53 . See Eritrea–Ethiopia Claims Comm’n (Eri. v. Eth.), Decision No. 2, available at http://pca-cpa.org/upload/files/Decision%202.pdf.

54 . Id.

55 . See generally EECC Eritrea Final Award, supra note 52, ¶¶ 6, 10; EECC Ethiopia Final Award, supra note 1, ¶¶ 6, 10 (discussing the pleadings and hearings that took place).

56 . See generally Eritrea–Ethiopia Claims Comm’n, Rules of Procedure, supra note 35, art. 13 (describing the arbitral procedures of hearings).

57 . See U.N. Secretary-General, Letter dated Apr. 15, 2002 from the Secretary-General to the President of the Security Council, U.N. Doc S/2002/423 (Apr. 15, 2002) (by Kofi A. Annan).

58 . See Eritrea–Ethiopia Boundary Comm’n (Eri. v. Eth.), Decision Regarding Delimitation of the Border Between the State of Eritrea and the Federal Democratic Republic of Ethiopia, ¶¶ 5.94–5.95, U.N. Doc. S/2002/423 (Apr. 13, 2002); Gray, supra note 8, at 700, 707–08.

59 . See U.N. Secretary-General, Report of the Secretary-General on Ethiopia and Eritrea, U.N. Sec. Council, ¶¶ 3–4, U.N. Doc 2/2002/744 (July 10, 2002).

60 . See id. ¶ 4.

61 . U.N. Secretary-General, Progress Report of the Secretary-General on Ethiopia and Eritrea, U.N. Sec. Council, ¶ 10, U.N. Doc. 2/2003/1186 (Dec. 19, 2003) (containing the Eleventh Report of the Eritrea–Ethiopia Boundary Commission, Appendix 1).

62 . See id. ¶ 12; U.N. Secretary-General, Report of the Secretary-General on Ethiopia and Eritrea, U.N. Sec. Council, ¶ 13, U.N. Doc 2/2005/142 (Mar. 7, 2005) (containing the Sixteenth Report of the Eritrea–Ethiopia Boundary Commission).

63 . See, e.g., S.C. Res. 1430, U.N. Doc. S/RES/1430 (Aug. 14, 2002); S.C. Res. 1466, U.N. Doc S/RES/1466 (Mar. 14, 2003); S.C. Res. 1507, U.N. Doc. S/RES/1507 (Sept. 12, 2003); S.C. Res. 1531, U.N. Doc. S/RES/1531 (Mar. 12, 2004); S.C. Res. 1560, U.N. Doc. S/RES/1560 (Sept. 14, 2004).

64 . See U.N. Secretary-General, Report of the Secretary-General on Ethiopia and Eritrea, ¶ 2, U.N Sec. Council, U.N. Doc 2/2006/1 (Jan. 3, 2006).

65 . S.C. Res. 1827, U.N. Doc. S/RES/1827 (July 30, 2008).

66 . Last Peacekeepers Leave UNMEE, U.N. Mission in Ethiopia and Eritrea, http://unmee.unmissions.org/Default.aspx?tabid=54&ctl=Details&mid=376&ItemID=368 (last visited Sept. 6, 2011).

67 . S.C. Res. 1827, supra note 65, ¶ 2.

68 . See UNMEE: United Nations Mission in Ethiopia and Eritrea, U.N. Documents, United Nations, http://www.un.org/en/peacekeeping/missions/past/unmee/resolutions.html (last visited Sept. 6, 2011) (listing all Resolutions passed during this interval).

69 . See Eritrea–Ethiopia Claims Commission, Permanent Court of Arbitration, http://www.pca-cpa.org/showpage.asp?pag_id=1151 (last visited Sept. 6, 2011). Professor Christine Gray has persuasively argued that this question of liability was outside the jurisdiction of the Eritrea–Ethiopia Claim Commission’s mandate. Because, however, the Organization of African Unity never formed the first commission described in the Algiers Agreement, the liability commission, the Commission, had to find liability to conclude its mandate. See generally Gray, supra note 8, at 714–20 (explaining the Commission’s approach to determining liability for the war).

70 . See Eritrea–Ethiopia Claims Commission, supra note 69.

71 . Awards are “partial” in that they do not become final until after the subsequent damages phase. See id.

72 . See id.

73 . EECC Prisoners of War, supra note 38; Partial Award: Prisoners of War—Ethiopia’s Claim 4 (Eri. v. Eth.), 26 R.I.A.A. 73 (Eri.–Eth. Claims Comm’n 2003).

74 . See Eritrea–Ethiopia Claims Commission, supra note 69.

75 . See Kidane, supra note 14, at 31–33.

76 . See Eritrea–Ethiopia Claims Commission, supra note 69.

77 . See id.

78 . Partial Award: Jus Ad Bellum—Ethiopia’s Claims 1–8 (Eri. v. Eth.), 26 R.I.A.A. 457, ¶ 16 (Eri.–Eth. Claims Comm’n 2005).

79 . See id. ¶ 3.

80 . See Press Release, Eritrea–Ethiopia Claims Comm’n, Eritrea–Ethiopia Claims Commission Renders Final Awards on Damages, (Aug. 17, 2009), http://www.pca-cpa.org/ upload/files/EECC%20Final%20Awards%20Press%20Release.pdf [hereinafter EECC Press Release].

81 . Hollis, supra note 4.

82 . See EECC Press Release, supra note 80.

83 . Eritrea to Pay Ethiopia Millions, BBC News (Aug. 18, 2009), http://news.bbc.co.uk/2/ hi/africa/8208285.stm.

84 . See EECC Eritrea Final Award, supra note 52, at 629–30, ¶¶ 1–18.

85 . See EECC Ethiopia Final Award, supra note 1, at 768–69, § A, ¶¶ 1–19.

86 . See id. ¶ 7.

87 . See id. at 769–70, § B, ¶¶ 1–17.

88 . See id. ¶ 3.

89 . See, e.g., id. ¶ 25 (“[T]he Commission has encouraged the Parties to consider how, in exercise of their discretion, compensation can best be used to accomplish the humanitarian objectives of Article 5(1) of the Agreement.”); id. ¶ 82 (“Any compensation goes to the claimant State, not to injured individuals (although the Commission remains confident that the Parties are mindful of their responsibility, within the scope of the resources available to them, to ensure that their nationals who are victims of the conflict receive relief).”).

90 . See, e.g., id. ¶ 11(1) (“[T]he Commission requests that the Parties inform it in their first filings how they intend to ensure distribution of damages received to civilian victims, including presently available information on existing or anticipated structures and procedures for this purpose.”).

91 . See id. ¶ 3.

92 . See id.

93 . Eritrea–Ethiopia Claims Comm’n (Eri. v. Eth.), Decision No. 5, § B, available at http://www.pca-cpa.org/upload/files/Decision%205.pdf [hereinafter EECC Decision No. 5].

94 . See id.

95 . See id. §§ B–C.

96 . See Permanent Court of Arbitration, supra note 9, at 155.

97 . See id. at 252.

98 . See id. at 146.

99 . Id.

100 . See id. at 155.

101 . See EECC Civilian Claims, supra note 8, ¶ 18.

102 . See Algiers Agreement, supra note 26, art. 5.

103 . See id. art. 5, ¶ 8.

104 . Permanent Court of Arbitration, supra note 9, at 162.

105 . EECC Ethiopia Final Award, supra note 1, ¶ 25.

106 . Permanent Court of Arbitration, supra note 9, at 156.

107 . EECC Ethiopia Final Award, supra note 1, ¶ 10.

108 . Permanent Court of Arbitration, supra note 9, at 162.

109 . See Kidane, supra note 14, at 48.

110 . See id. at 31–32.

111 . Eritrea collected 28,815 forms (25,595 claiming loss or damage to personal property and 3,220 claiming damage to business) from individuals to support the number the country claimed Ethiopia owed it for part of its claim. See EECC Ethiopia Final Award, supra note 1, ¶ 56.

112 . See The World Factbook: Eritrea, U.S. Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/geos/er.html (last visited Sept. 6, 2011)

113 . Eritrea ranks 168th in world economies. See id.

114 . EECC Ethiopia Final Award, supra note 1, ¶ 38 (“[C]ompensation levels also have been reduced, balancing the uncertainties flowing from the lower standard of proof.”).

115 . See EECC Eritrea Final Award, supra note 52, at 507–08.

116 . Id. at 507.

117 . See generally Eritrea–Ethiopia Claims Comm’n, Rules of Procedure, supra note 35, art. 13 (describing the hearing process for the proceedings between Ethiopia and Eritrea).

118 . See id. ¶ 71.

119 . EECC Ethiopia Final Award, supra note 1, ¶ 37.

120 . EECC Eritrea Final Award, supra note 52, ¶ 70.

121 . Id.

122 . Id. ¶ 71.

123 . Id. ¶ 72.

124 . See id. at 508.

125 . See id. The Commission would in some cases award no compensation at all for claims when it did not have sufficient evidence. See, e.g., id. ¶ 307.

126 . EECC Ethiopia Final Award, supra note 1, ¶ 18 (“In assessing both Parties’ damages claims, the Commission has been mindful of the harsh fact that these countries are among the poorest on earth.”).

127 . Id.

128 . Id. ¶ 315.

129 . Id. ¶¶ 19, 21.

130 . See Justin Yifu Lin, Development and Transition: Idea, Strategy, and Viability 7 (China Ctr. for Econ. Research, Working Paper No. E2007007, 2007), available at http://en.ccer.edu.cn/ download/6401-1.pdf.

131 . See The Peace Treaty of Versailles, June 28, 1919, Part IX: Financial Clauses, art. 259, available at http://net.lib.byu.edu/~rdh7/wwi/versa/versa8.html (describing enforcement and time requirements for Germany to pay its financial obligations under the Treaty); Algiers Agreement, supra note 26, art. 5, ¶ 17 (merely providing that “[t]he parties agree to honor all decisions and to pay any monetary awards rendered against them promptly).

132 . EECC Eritrea Final Award, supra note 52, ¶ 239.

133 . Id.

134 . See Algiers Agreement, supra note 26, arts. 1–2.

135 . EECC Eritrea Final Award, supra note 52, ¶ 2.

136 . Desalegn Sisay & Konye Obaji Ori, Ethiopia and Eritrea to Pay for War Damages: Ethiopia Not Satisfied with Ruling, Afrik-News.Com (Aug. 19, 2009), http://en.afrik.com/ article16061.html (“The Ethiopian government is dissatisfied with the commission’s ruling, after they (the commission) found out that Eritrea was the offender and had dragged Ethiopia into the grave war said the ministry. It also said, Ethiopia will further study the details of the final award and measures that could be taken to ensure what is owed to Ethiopia by Eritrea is settled.”).

137 . See Press Release, Statement of the Government of Eritrea on the Award of the Claims Commission (Aug. 18, 2009), available at http://adalvoice.wordpress.com/2009/08/18/eritrea-accepts-the-award-of-the-claims-commission/.

138 . See Jeremy Clarke, Eritrea Dismisses New Border Violence Accusation, Reuters (Oct. 29, 2009, 12:25 PM), http://af.reuters.com/article/topNews/idAFJOE59S0H320091029? pageNumber=1&virtualBrandChannel=0.

139 . See id.

140 . Eritrea–Ethiopia: UN Urges Ethiopia to Cooperate with Border Commission, IRIN, http://www.irinnews.org/report.aspx?reportid=47953 (last visited Sept. 6, 2011).

141 . See The Int’l Crisis Grp., Eritrea: The Siege State, Africa Report No. 163 22–26 (2010), available at http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/ethiopia-eritrea/163%20Eritrea%20The%20Siege%20State.pdf.

142 . Introduction, U.N. Compensation Comm’n, http://www.uncc.ch/introduc.htm (last visited Sept. 6, 2011).

143 . See id.

144 . Id.

145 . Id.

146 . Id.

147 . See id.

148 . The Claims, U.N. Compensation Comm’n, http://www.uncc.ch/theclaims.htm (last visited Sept. 6, 2011).

149 . Status of Processing and Payment of Claims, U.N. Compensation Comm’n, http://www.uncc.ch/status.htm (last updated Sept. 6, 2011).

150 . Norbert Wühler, Institutional and Procedural Aspects of Mass Claims Settlement Systems: The United Nations Compensation Commission, in Institutional and Procedural Aspects of Mass Claims Settlement Systems 17, 18 (Int’l Bureau of the Permanent Court of Arbitration ed., 2000) [hereinafter Institutional and Procedural Aspects of Mass Claims Settlement Systems: The United Nations Compensation Commission].

151 . The Claims, supra note 148.

152 . U.N. Compensation Comm’n, http://www.uncc.ch/start.htm (last updated July 29, 2008).

153 . Permanent Court of Arbitration, supra note 9, at 56.

154 . Id. at 57.

155 . Id. at 56–57.

156 . Id. at 248.

157 . Norbert Wühler, The United Nations Compensation Commission: A New Contribution to the Process of International Claims Resolution, 2 J. Int’l Econ. L. 249, 261 (1999).

158 . Permanent Court of Arbitration, supra note 9, at 248–49.

159 . See Francis E. McGovern, Dispute System Design: The United Nations Compensation Commission, 14 Harv. Negot. L. Rev. 171, 185 (2009).

160 . Institutional and Procedural Aspects of Mass Claims Settlement Systems: The United Nations Compensation Commission, supra note 150, at 20–21.

161 . Id. at 20 (emphasis omitted).

162 . Id. at 21 (emphasis omitted).

163 . Id.

164 . John J. Chung, The United Nations Compensation Commission and the Balancing of Rights Between Individual Claimants and the Government of Iraq, 10 UCLA J. Int’l L. & Foreign Aff. 141, 167 (2005).

165 . See id. at 167–68.

166 . See id. at 167, 168 n.100.

167 . Permanent Court of Arbitration, supra note 9, at 150.

168 . The Commission actually disregarded a large amount of claim forms that Eritrea had created because Eritrea did not make them appropriately. See EECC Eritrea Final Award, supra note 52, ¶¶ 69–72.

169 . See The Claims, supra note 148.

170 . See EECC Ethiopia Final Award, supra note 1, ¶ 3 (explaining that the process was not intended to determine appropriate individual compensation, but to determine broader awards for the states as claimants).

171 . Chung, supra note 164, at 162.

172 . See id.

173 . See id. at 175.

174 . See id. at 174–75.

175 . Id. at 174 (“While most of the claims before the Iran Tribunal were settled, approximately 250 claims were arbitrated to a decision. It took ten years to arbitrate these 250 claims to conclusion.”).

176 . Permanent Court of Arbitration, supra note 9, at 23.

177 . Id.

178 . Id. at 24.

179 . Id.

180 . Hans van Houtte, Mass Property Claim Resolution in a Post-War Society: The Commission for Real Property Claims in Bosnia and Herzegovina, in Institutional and Procedural Aspects of Mass Claims Settlement Systems 23, 24 (Int’l Bureau of the Permanent Court of Arbitration ed., 2000).

181 . See id. at 32.

182 . Id. at 33.

183 . Id.

184 . See id. at 33, 39–40.

185 . See id. at 33.

186 . Id. at 41.

187 . Id. at 42 (“It would be unrealistic to expect that the Commission’s decisions, which go against the political and even financial interests of the local power structure, will immediately be fully recognised or implemented by the local authorities. However, even if implementation in the short term may give rise to some problems, the decisions have been formally taken and are in the hands of the public. Sooner or later they have to be implemented. In Germany owners had to wait for 50 years but their titles to property located in the former German Democratic Republic were finally recognised after the reunification.”).

188 . These countries include Bosnia, Herzegovina, Iraq, and Kuwait. U.N. Compensation Comm’n Governing Council, Special Report and Recommendations Made by the “D1” Panel of Commissioners Concerning 223 Claims of Bosnia and Herzegovina for Departure from Iraq or Kuwait (Category “A” Claims), ¶¶ 1(a), 18, U.N. Sec. Council, U.N. Doc S/AC.26/2000/15 (Sept. 29, 2000).

189 . Iraq Overview, U.S. Energy Info. Admin., http://205.254.135.24/countries/country-data.cfm?fips=IZ (last visited Sept. 6, 2011).

190 . See EECC Eritrea Final Award, supra note 52, ¶ 71.

191 . Id.

192 . Permanent Court of Arbitration, supra note 9, at 349.

193 . Id. at 350.

194 . Id. at 302.

195 . Van Houtte, supra note 180, at 26.

196 . See Algiers Agreement, supra note 26, art. 5, ¶ 2.

197 . See Permanent Court of Arbitration, supra note 9, at 308.

198 . Id.

199 . Id. at 352.

200 . See Howard M. Holtzmann, Mass Claims Systems: Potentials and Pitfalls, in Institutional and Procedural Aspects of Mass Claims Settlement Systems 1, 6 (Int’l Bureau of the Permanent Court of Arbitration ed., 2000).

201 . See EECC Ethiopia Final Award, supra note 1, at 639–40.

202 . Permanent Court of Arbitration, supra note 9, at 349.

203 . Ethiopia’s GDP as of 2008 was $72.24 billion. The World Factbook: Ethiopia, U.S. Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/ geos/et.html (last visited Sept. 6, 2011).

204 . Eritrea’s GDP as of 2008 was $3.877 billion. See The World Factbook: Eritrea, supra note 112.

205 . See EECC Decision No. 5, supra note 93, § B.

206 . See Permanent Court of Arbitration, supra note 9, at 359–60.

207 . UNMEE: United Nations Mission in Ethiopia and Eritrea, Facts and Figures, United Nations, http://www.un.org/en/peacekeeping/missions/past/unmee/facts.html (last visited Sept. 6, 2011).

208 . McGovern, supra note 159, at 187–88.

209 . See The World Factbook: Ethiopia, supra note 203; The World Factbook: Eritrea, supra note 112.

210 . Violations of Academic Freedom in Ethiopia, Jan. 24, 2003, A1502, available at http://www.unhcr.org/refworld/docid/3f4f59533.html.

211 . See McGovern, supra note 159, at 188.

212 . Charles N. Brower, Lessons to be Drawn from the Iran–U.S. Claims Tribunal, 9 J. Int’l Arb. 50, 56 (1992) (stating that “[t]here will never, by any projection that anyone has seen, be enough money to pay 100 per cent of the claims” before the UNCC).

213 . See McGovern, supra note 159, at 188.

214 . Institutional and Procedural Aspects of Mass Claims Settlement Systems: The United Nations Compensation Commission, supra note 150, at 20.

215 . See EECC Ethiopia Final Award, supra note 1, ¶ 16.

216 . See id. at 644, 770.

217 . Author’s correspondence with Sean D. Murphy, Patricia Roberts Harris Research Professor of Law, George Washington University Law School, Washington, D.C. (Aug. 2, 2011).

218 . U.N. Compensation Comm’n, supra note 152.

219 . Id.

220 . Permanent Court of Arbitration, supra note 9, at 23.

221 . Kidane, supra note 14, at 86.

222 . Permanent Court of Arbitration, supra note 9, at 67–68; Algiers Agreement, supra note 26, art. 5, ¶ 1.

A Call for International Regulation of the Thriving “Industry” of Death Tourism

ALEXANDER R. SAFYAN[*]

I. INTRODUCTION

On July 7, 2009, distinguished English conductor Sir Edward Downes traveled with his wife, Lady Joan, to Zurich, Switzerland.[1] Three days later, the couple visited the assisted suicide clinic Dignitas, where workers provided them with a clear, liquid drink that would enable them to end their lives together.[2] Sir Edward and Lady Joan drank the “cocktail of barbiturates,” lay next to each other holding hands, and died within minutes.[3] Lady Joan was seventy-four years old, and in the final stages of terminal cancer; Sir Edward was eighty-five years old, and nearly blind and deaf.[4] However, unlike his wife, Sir Edward was not terminally ill.[5]

This story sparked new controversy surrounding the practices of assisted suicide clinics such as Dignitas, which offer patients the ability to peacefully and painlessly end their lives. Yet this story is only one of several highly publicized reports of individuals traveling abroad in search of assistance in committing suicide. For example, in January 2003, a seventy-four-year-old man named Reginald Crew, who had been diagnosed with motor neuron disease, became one of the first British citizens to die with the help of Dignitas’s services.[6] In April 2003, a British couple’s decision to die at Dignitas generated widespread criticism of the clinic’s practices because neither person was terminally ill.[7] Robert Stokes, age fifty-nine, suffered from epilepsy, while his wife, Jennifer, age fifty-three, had back problems and diabetes.[8] Perhaps the most controversial story surfaced in September 2008, when twenty-three-year-old Daniel James, who had been paralyzed from a rugby injury, ended his life at Dignitas with his parents by his side.[9] The prevalence of such stories has led many authors and commentators to popularize the term “death tourism,” which describes the phenomenon of citizens traveling to foreign countries in search of assistance in taking their lives.[10]

The emergence of death tourism as a new “industry” has revived international debate regarding the legalization of physician-assisted suicide and euthanasia. Indeed, several countries have recently taken steps to address the phenomenon. In February 2010, following a five-month-long public response period, the Director of Public Prosecutions in the United Kingdom issued new guidelines designed to clarify the circumstances under which individuals planning to assist another in suicide could expect to face prosecution.[11] Similarly, following its own several-month-long consultation process, the Federal Council in Switzerland recently announced that it planned to introduce stricter regulations against assisted suicide.[12] Other countries, however, have dismissed death tourism as a potential problem, either because their laws expressly prohibit it or because their culture prevents it from occurring.[13] In any case, leaders agree that they would not like to see their countries become breeding grounds for “death tourists.”[14]

With reports of death tourism on the rise,[15] and criticism of the increasingly ineffective safeguards of local assisted suicide laws mounting, the question becomes: Should international law do anything to address this phenomenon? If the answer to this question is “yes,” then the logical subsequent question is: What form should a resolution take, such that it preserves individual nations’ sovereignty while simultaneously promoting the integrity of obligations imposed by domestic law?

This Note asserts that regulation of death tourism is an essential step in defusing the international community’s concerns over the controversial practice. Further, this Note posits that the most effective tool for curtailing death tourism is the adoption of an instrument of “soft law,”[16] which would grant countries flexibility in shaping their responsibilities toward assisted suicide of non-citizens, as well as provide a less formal, and thus more conciliatory, framework for compliance with those responsibilities. It is important to note that this Note does not undertake a debate as to the moral, ethical, or legal justifications for or against assisted suicide. Rather, this Note argues that—notwithstanding one’s personal views about the legality of the practice—a system where non-terminally ill individuals can travel abroad and enlist the services of death clinics to help them end their lives offends both notions of international comity and respect for the obligations of domestic law.

Part II of this Note sets forth the various end-of-life procedures available to patients and examines some of the principal arguments surrounding the use of those procedures. Part III analyzes and compares the laws of four countries with contrasting positions on the legitimacy of end-of-life procedures: the United Kingdom, the United States, the Netherlands, and Switzerland. The choice (and order of presentation) of these four countries represents a broad sweep over the spectrum of end-of-life jurisprudence, and features countries whose laws move from most restrictive to least restrictive. Additionally, Part III considers which of these countries presents the greatest potential for death tourism, affording special attention to recent proposals for change introduced by the countries’ policymakers. Part IV articulates a proposal for international regulation of death tourism through the means of a soft law instrument and explains why such an instrument would be favorable to a hard law alternative. Finally, Part V concludes that although non-binding in nature, “soft” regulation of death tourism could lead to the desired effect of influencing countries’ behavior toward each other’s citizens and increasing their respect for the laws of their sovereign neighbors.

II. DEFINING AND CONCEPTUALIZING VARIOUS END-OF-LIFE PROCEDURES

A. Defining the Terminology

Before engaging in a comparative analysis of the laws in different countries governing end-of-life procedures, it is necessary to identify and define the terminology that describes these procedures. The first important distinction to make is between assisted suicide and euthanasia. While many believe these terms are synonymous,[17] a more accurate definition focuses on who ultimately brings about the patient’s death.[18] As the word “suicide” suggests, assisted suicide entails the patient ultimately taking her own life. The American Medical Association defines physician-assisted suicide (PAS)[19] as “a physician facilitat[ing] a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act.”[20] Thus, under this scenario, while the patient receives assistance from a physician—either in the form of medication, instruction, or advice—the key component is that the patient herself carries out the final act, rather than the physician. Conversely, euthanasia, which originates from the Greek eu, meaning “good,” and thanatos, meaning “death,”[21] involves the physician acting to cause the patient’s death.[22] The physician will most often do this by administering a lethal injection or removing the patient from some form of life-support.[23] Whatever the action, the defining characteristic of euthanasia is that the physician, not the patient, carries out the ultimate life-ending act.

Euthanasia can further be classified as active or passive, and voluntary or involuntary. Active euthanasia involves a physician or other person directly acting to end a patient’s life.[24] An example of this would be a physician injecting a patient with a drug that causes the patient’s death. On the other hand, passive euthanasia entails foregoing or discontinuing life-sustaining treatment.[25] For instance, a physician may refrain from inserting a feeding tube into a patient’s body or he may disconnect the patient from life-support. Passive euthanasia is allowed in most countries, as this practice is generally associated with a patient’s right to refuse medical treatment, rather than a request that the physician “kill” her.[26] Most countries that criminalize euthanasia specifically proscribe active euthanasia. These countries view active euthanasia as a form of “killing,”[27] and distinguish between “killing” and “letting die,” the latter of which they consider morally acceptable.[28]

Though the line between killing and letting die may be blurry, the distinction between voluntary and involuntary euthanasia is clear.[29] This distinction plays a crucial role in the moral debate surrounding end-of-life procedures. Voluntary euthanasia refers to a situation where a physician ends a patient’s life at the request of the patient and with the patient’s informed consent.[30] Involuntary euthanasia, however, refers to a case where a patient has not consented, either because she is physically or mentally unable to, or because she has expressly stated that she does not wish to be euthanized.[31] Some describe the former situation—where the patient is unable to consent—as non-voluntary euthanasia, and the latter situation—where the patient has indicated that she does not want to be euthanized—as involuntary euthanasia.[32] For purposes of this Note, however, this distinction is irrelevant.

B. Competing Positions

Arguments for and against these aforementioned procedures abound, most of which are enveloped in larger debates concerning moral, ethical, and legal issues. The arguments in support of PAS and euthanasia center around two main principles: “personal autonomy and the right to be free from undue suffering.”[33] With regard to the first principle, proponents contend that individuals have a right to self-determination.[34] In other words, people are free to make decisions that affect their own lives. The underlying premise of this argument is the belief that the right to choose how to live one’s life necessarily encompasses the right to choose how to end it.[35] The second principle, the right to be free from extreme suffering, is founded upon notions of mercy and compassion. This principle maintains that individuals should not contribute to the pain and suffering of others, but rather, should alleviate such pain whenever possible,[36] including by ending an afflicted individual’s life. Advocates of these two principles urge their countries to pass laws permitting PAS and voluntary euthanasia under the proper circumstances.

On the other side of the debate, those who oppose life-ending procedures argue that a physician should never be permitted to knowingly and voluntarily take a patient’s life. This argument is deeply rooted in several fundamental beliefs. First, most opponents of PAS and euthanasia contend that a theoretical “right to die” never outweighs the value of human life.[37] In support of their position, opponents point to the use of modern drugs to control pain and new developments in medicine that will extend patients’ lives further than ever imagined.[38] Second, opponents of PAS and euthanasia emphasize the difficulty physicians face in determining whether the patient has voluntarily consented.[39] This difficulty stems from such problems as ascertaining whether the patient is rational or competent to consent in the first place.[40] Third, and perhaps most controversially, those who disapprove of PAS and euthanasia raise “slippery slope” arguments against these practices.[41] These arguments theorize that the legalization of PAS and euthanasia will lead to widespread abuse of vulnerable groups of people.[42] Specifically, the poor and the elderly may feel pressure to prematurely end their lives so as not to impose financial or emotional burdens on their families.[43] In addition, the mentally ill and disabled may be misled into requesting death, either by their loved ones or by their treating physicians.[44] Regardless of the specific objection, most opponents agree that the proliferation of life-ending procedures would result in a deterioration of the physician-patient relationship,[45] as it would erode the trust in the relationship as well as the view that physicians are healers.[46]

III. COMPARATIVE LAW AND THE POTENTIAL FOR DEATH TOURISM

This section analyzes and compares the laws regulating end-of-life procedures in the United Kingdom, the United States, the Netherlands, and Switzerland. In the course of this analysis, this section also considers the extent to which each of these countries represents a potential death tourism destination.

A. The United Kingdom

With its policymakers endlessly debating the legalization of PAS and its citizens comprising the largest number of people traveling abroad to be assisted in death, the United Kingdom is at the forefront of the death tourism phenomenon. The U.K.’s House of Lords has repeatedly rejected attempts to pass a bill permitting assisted suicide, and popular sentiment in favor of the practice has gone largely unheeded.[47] Only the recent decision by the Director of Public Prosecutions (DPP) to promulgate new guidelines regarding the prosecution of assisted suicide violators has produced any hope for a change in the status quo.[48]

In 1961, Parliament passed the Suicide Act, which eliminated suicide as a crime while simultaneously introducing a new offense for assisting another in suicide.[49] The Act provided that “[a] person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide” would be subject to imprisonment for up to fourteen years.[50] This punishment remains one of the most severe of its kind in Europe.[51] Not coincidentally, therefore, the United Kingdom has experienced perhaps the greatest public clamor for relaxation of its assisted suicide laws.

1. The Case of Diane Pretty

The first highly publicized challenge to the U.K.’s assisted suicide ban came in 2000, when a woman named Diane Pretty petitioned the DPP to declare that her husband would not be prosecuted for helping her commit suicide.[52] Ms. Pretty was diagnosed with motor neuron disease—a condition that would ultimately paralyze her—and sought permission for her husband to assist her in peacefully ending her life.[53] The DPP refused her request, leading Ms. Pretty to bring her challenge to the judiciary.[54]

The Divisional Court dismissed Ms. Pretty’s claim. It found that the DPP did not have power to grant immunity to Ms. Pretty’s husband for future or proposed criminal conduct, and that the Suicide Act 1961 was not incompatible with the European Convention on Human Rights.[55] Ms. Pretty appealed the Court’s decision to the House of Lords, which also rejected her claim.[56] Finally, Ms. Pretty brought her case before the European Court of Human Rights (ECHR).

Before the ECHR, Ms. Pretty asserted two primary arguments under Articles 2 and 3 of the European Convention on Human Rights and several alternative arguments under Articles 8, 9, and 14.[57] First, Ms. Pretty asserted that Article 2, which protects the right to life, also guarantees a negative right, the right to choose not to live.[58] The ECHR, however, found that Article 2 was concerned with the protection and preservation of life and could not, without a distortion of language, be interpreted to also confer the right to choose to die.[59] Ms. Pretty’s second argument focused on Article 3 of the Convention, which states, “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.”[60] Ms. Pretty claimed that the State’s prohibition on assisted suicide and the DPP’s refusal to grant prospective immunity to her husband constituted inhuman and degrading treatment in violation of the Convention.[61] The Court rejected this argument as well, explaining that Article 3 only required states to ensure that individuals within their jurisdictions were not subjected to inhuman treatment, but did not require them to actively provide treatment to individuals who required medical care.[62]

In addition to the aforementioned arguments, Ms. Pretty raised alternative arguments under Articles 8, 9, and 14 of the Convention. Based on Article 8, which prohibits interference in individuals’ lives except when necessary to protect interests such as public safety,[63] Ms. Pretty claimed that the State’s assisted suicide ban violated her right to privacy and self-determination.[64] The Court found that interference by the State in this matter was justified because the State had the right to use criminal law to protect vulnerable groups of people (such as the terminally ill) and to regulate activities that endangered the safety of others.[65] Under Article 9, Ms. Pretty argued that the State’s prohibition on assisted suicide violated her freedom of thought, conscience, and religion.[66] The Court quickly rejected this contention, finding that Ms. Pretty’s views on assisted suicide were not manifestations of religious belief or thought.[67] Finally, with respect to Article 14, which prohibits discrimination under the Convention,[68] Ms. Pretty claimed that a blanket ban on assisted suicide discriminated between individuals who were physically able to commit suicide without assistance and those who were unable to do so.[69] As with her other claims, the ECHR refused to entertain Ms. Pretty’s contention. It concluded that the State had legitimate safety reasons for refusing to distinguish between people who were capable of committing suicide on their own and those who required assistance.[70]

2. Recent Developments in the United Kingdom

Since the ECHR’s dismissal of the Pretty case, the United Kingdom has witnessed several key developments in the assisted suicide/death tourism story. In 2004, Lord Joel Joffe introduced the Assisted Dying for the Terminally Ill Bill, modeled after Oregon’s Death with Dignity Act,[71] discussed below in Part III.B. The House of Lords formed a Select Committee to review the Bill, and the committee published an extensive report with statistical findings, analyses of other countries’ laws, and recommendations for improving the bill.[72] Following the report, Lord Joffe submitted a new version of the bill in 2005. The bill’s stated purpose was to “[e]nable an adult who has capacity and who is suffering unbearably as a result of a terminal illness to receive medical assistance to die at his own considered and persistent request.”[73] The proposed legislation authorized a physician to assist a patient in suicide by prescribing lethal medication, or, in the case of a patient who was unable to orally ingest that medication, by providing means of self-administration.[74] Despite providing many of the same safeguards as other countries’ assisted suicide laws—including requirements of capacity, a terminal illness, an effective year-long residency, and minimum waiting periods[75]—the bill was rejected by the House of Lords in May 2006.[76] Since then, no other proposed law has made it as far in the legislative process.[77] In May 2009, however, Lord Charles Falconer launched a campaign calling for the legal protection of individuals who traveled abroad to assist loved ones in committing suicide.[78] His campaign achieved mixed results: the law remains unchanged today, but recent steps taken by the DPP have somewhat clarified the uncertainty surrounding the prosecution of assisted suicide.[79]

In September 2009, the DPP provided this clarification by finally agreeing to issue new guidelines regarding his office’s decisions to prosecute cases of assisted suicide.[80] Besides Diane Pretty, many others had unsuccessfully petitioned the DPP to issue such guidelines for decades. The most recent challenger, a woman named Debbie Purdy, finally succeeded. Like Diane Pretty, Ms. Purdy, who had been diagnosed with multiple sclerosis, sought assurance from the DPP that her husband would not be prosecuted for accompanying her abroad to help her commit suicide.[81] The DPP denied Ms. Purdy’s request, and the U.K. courts rejected her subsequent legal challenge. Surprisingly, however, in its decision, the House of Lords expressed support for clarification of the DPP’s polices on prosecuting assisted suicide.[82] The DPP obliged by issuing an interim policy, which established “public interest factors” in support of, and against, prosecution.[83] Following publication of this policy, the DPP sought public consultation through a collection of individual responses and comments to a series of questions regarding the policy.[84] After considering the public’s responses, the DPP issued its final policy in February 2010.[85]

According to the new policy, “encouraging or assisting suicide” remains an offense under the Suicide Act 1961.[86] However, prosecutors must now apply a “Full Code Test,” which is comprised of two stages: an evidential stage and a public interest stage.[87] A prosecution will only proceed if first, the evidential stage is met, and second, a prosecution is deemed necessary in the public interest.[88] For the evidential stage, a prosecutor must prove that: “[1] the suspect did an act capable of encouraging or assisting the suicide or attempted suicide of another person; and [2] the suspect’s act was intended to encourage or assist suicide or an attempt at suicide.”[89] If there is sufficient evidence of both elements, the DPP will then consider whether prosecution is in the public interest. The DPP does this by reviewing the facts and merits of the particular case and weighing “public interest factors” both for and against prosecution.[90] Public interest factors in favor of prosecution include whether the victim was under eighteen years of age or did not have the capacity to reach an informed decision, and whether the assisting party persuaded or pressured the victim into committing suicide.[91] Public interest factors against prosecution include whether the victim made a voluntary and informed decision to commit suicide, whether the assisting party was wholly motivated by compassion, and whether the assisting party reported the victim’s suicide to the police and fully assisted them in their investigation.[92]

The DPP announced that the new policy did not decriminalize assisted suicide or assure any person that she will be immune from prosecution for encouraging or assisting another in suicide.[93] Rather, the new policy is intended to “provide a clear framework for prosecutors to decide which cases should proceed to court and which should not.”[94] While assisted suicide is still an offense punishable by up to fourteen years imprisonment, the DPP acknowledged early on that the new policy may lead to an increase in assisted suicide in the United Kingdom.[95] Certainly, there will be no flurry of assisted suicide clinics opening in the country to welcome death tourists; but the new policy may make it easier for British citizens to travel abroad for suicide with reassurance that their loved ones will not be prosecuted for assisting them. Only time will tell what kind of effect the new policy will have.

B. The United States

No federal law in the United States directly permits or prohibits PAS or euthanasia. Instead, the right to legislate on end-of-life procedures lies within the purview of the individual states.[96] Currently, only Oregon and Washington have enacted statutory provisions allowing PAS under certain conditions.[97] However, in Montana, a district court judge declared in December 2008 that the State’s constitution recognizes the right of terminally ill patients to “die with dignity” by obtaining a prescription for lethal medication from their physicians.[98] The State Attorney General appealed the case to the Montana Supreme Court, which issued a ruling in December 2009 affirming the district court’s judgment, albeit on much narrower grounds.[99] Specifically, the Court refrained from answering the constitutional question whether terminally ill patients actually enjoy a right to “die with dignity”; instead, the Court held that a physician’s aid in a patient’s death does not violate the State’s public policy exception to the consent defense.[100] The Court’s decision effectively makes Montana the third state to legally recognize PAS, though that right has not yet been codified by statute. Even with these states’ acceptance of PAS, euthanasia remains illegal in every state.[101]

1. Judicial Background Regarding the Constitutionality of PAS

Several United States Supreme Court decisions from the past twenty or so years have helped shape the current landscape of PAS jurisprudence in the United States. In 1990, the Supreme Court faced the question of whether the United States Constitution guaranteed a right to refuse life-sustaining treatment.[102] The patient in that case, Nancy Cruzan, suffered severe injuries in an automobile accident that rendered her permanently disabled and in a “persistent vegetative state.”[103] Her parents sought to remove Cruzan from an artificial nutrition and hydration device that was keeping her alive. The Supreme Court held that patients have the right, guaranteed by the Due Process Clause of the Fourteenth Amendment to the Constitution, to refuse unwanted medical treatment.[104] The Court based its decision on traditional common law principles of battery, bodily integrity, and freedom from unwanted touching,[105] declining to draw a corollary between the right to refuse treatment and a “right to die with dignity.”[106]

In 1997, following the passage of Oregon’s assisted suicide law, the Supreme Court issued a critical decision that threatened the rights of assisted suicide supporters in the United States. In Washington v. Glucksberg, the Court upheld a Washington state law that banned assisted suicide, finding that the Constitution did not confer a fundamental right to “commit suicide with another’s assistance.”[107] The Court balanced the patient’s asserted right to assistance in suicide against the State’s multiple interests in preserving life, preventing suicide, and protecting the integrity of the medical profession, and concluded that Washington’s assisted suicide ban was reasonably related to legitimate state interests.[108] Opponents of Glucksberg have criticized the Court’s narrow interpretation of the asserted right in that case—to wit, the right to commit suicide with another’s assistance—and have instead characterized it as a right to “die with dignity” or to choose the means of one’s death.[109] Advocates of PAS, however, have noted that in its decision, the Court encouraged individuals to continue to engage in “an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide.”[110]

On the same day it decided Glucksberg, the Supreme Court ruled in Vacco v. Quill that New York’s prohibition of PAS did not violate the Equal Protection Clause of the Fourteenth Amendment.[111] The plaintiffs in Vacco argued that the State of New York unfairly discriminated against the rights of the terminally ill by permitting competent patients to refuse medical treatment—as in Cruzan—while forbidding patients from requesting assisted suicide.[112] The Court rejected this argument and drew a clear line between refusing life-sustaining treatment and requesting life-ending treatment.[113] The Court concluded that the State had acted rationally in differentiating between these two competing rights and declared that the state’s laws followed a “longstanding and rational distinction.”[114] Importantly, the Court’s decision, insofar as it was based on its interpretation of the federal Constitution, confirmed that the states were free to decide for themselves whether their respective state constitutions recognized a right to PAS or euthanasia.[115]

2. State Laws Recognizing PAS

In the midst of the Supreme Court’s adjudication of the right to assisted suicide, Oregon became the first state to legalize PAS in limited circumstances.[116] Oregon’s Death with Dignity Act (ODWDA) was first passed in 1994 by a state ballot measure that drew a fifty-one percent vote of Oregon residents.[117] After multiple legal challenges and court-ordered injunctions delayed its enforcement, the law finally went into effect in 1997, when Oregon voters rejected a measure to repeal the law by a sixty percent vote.[118]

The ODWDA allows competent, terminally ill patients who are residents of Oregon to request PAS under certain conditions. It provides:

An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner . . . .[119]

Under the ODWDA, a patient is considered “capable” if, in the opinion of the court or the patient’s attending or consulting physician, psychiatrist, or psychologist, the patient is able to make and communicate health care decisions to her physicians.[120] The patient must be suffering from a terminal disease, defined by the ODWDA as an incurable and irreversible disease that will, within reasonable medical judgment, produce death within six months.[121] The patient’s decision to die must be voluntary and “informed,”[122] and the patient must make and sign a written request for lethal medication in the presence of at least two witnesses, one of whom must not be a relative, a person entitled to any part of the patient’s estate, or a health care provider.[123]

The attending physician must make the initial determination as to whether the patient is capable, has a terminal disease, and has made the request for medication voluntarily.[124] The attending physician must also ensure that the patient has made an informed decision, meaning that the physician has informed the patient of: (1) the physician’s medical diagnosis; (2) the physician’s prognosis; (3) the potential risks associated with taking the prescribed medication; (4) the probable result of taking the prescribed medication; and (5) the feasible alternatives, including hospice care and pain control.[125] Finally, the attending physician must refer the patient to a consulting physician, who must confirm the attending physician’s diagnosis and verify that the patient is capable and acting voluntarily.[126] Once these requirements are satisfied, the attending physician may write a prescription for lethal medication;[127] however, the attending physician must wait at least fifteen days after the patient’s initial oral request, or at least forty-eight hours after the patient’s written request, before providing the patient with the prescription.[128]

Oregon remained the only state to have legalized PAS for over a decade.[129] Then, in November 2008, voters in the State of Washington approved a law that virtually mirrored the law in Oregon.[130] Washington’s Death with Dignity Act (WDWDA) contains nearly identical language to its Oregon counterpart, differing only with respect to a few trivial characteristics.[131] The WDWDA includes all of the same procedural requirements and safeguards as the ODWDA and shares its fundamental purpose.

3. The Potential for Death Tourism

A unique feature of both the ODWDA and WDWDA, which distinguishes these laws from those in the Netherlands and in Switzerland, is that the patient must prove that she is a resident of the state to qualify for PAS.[132] In Oregon, the patient can prove residency through some combination of possessing a state-issued driver’s license, being registered to vote in the state, owning or leasing property in the state, or filing a tax return in the state.[133] In Washington, the same criteria apply, with the exception of filing a tax return in the state.[134]

These residency requirements act as buffers for death tourism. Unlike the assisted suicide laws in the Netherlands and in Switzerland (detailed below), Oregon and Washington’s assisted suicide laws make it extremely difficult for foreign citizens to travel to the United States in search of aid in death. In Oregon, it may be possible for a non-resident patient to purchase land in the state and file a state tax return.[135] However, the factors are not dispositive in establishing residency for purposes of the ODWDA,[136] and would nevertheless make death tourism an incredibly expensive endeavor. Moreover, even a patient who goes through the trouble of establishing a residence in Oregon must satisfy additional criteria, such as having a terminal illness and demonstrating capability to make the request for assisted suicide.[137] The statutorily defined terminal illness requirement itself poses significant hardship, as a patient who is expected to die within six months would likely find it too burdensome to devise a plan to feign residency in the state.

In addition to the residency requirements, the minimum waiting periods between the patient’s request and receipt of the prescription specified by the ODWDA and WDWDA limit the opportunities for death tourism. Under both Acts, at least fifteen days must pass between the patient’s initial oral request and the physician’s grant of the prescription, and at least forty-eight hours must pass after the patient’s written request.[138] These waiting periods prevent hasty action, ensuring that the patient exercises extreme diligence and care in her decision to request and ultimately carry out her own death. Furthermore, both Acts stipulate that the attending physician must offer the patient the opportunity to rescind her request before providing the prescription, and explicitly give the patient the right to rescind her request even when not asked by the physician.[139] Such strict time requirements prevent patients from being able to request assisted suicide in the morning and have that request granted by the afternoon. When viewed in conjunction with the Acts’ residency requirements, it is no surprise that there have been few, if any, reports of patients moving to Oregon or Washington to take advantage of their assisted suicide laws.[140]

C. The Netherlands

In 2001, the Netherlands became the first country to legally recognize both PAS and euthanasia with the passage of the Termination of Life on Request and Assisted Suicide Act (TLRSA).[141] Prior to 2001, assisted suicide and euthanasia had been “practiced and tolerated” in the Netherlands for several decades, despite the country’s ban on both practices.[142] In the mid-twentieth century, developments in medical technology and the maturation of a doctor-patient relationship opened the door for discussion regarding end-of-life procedures.[143] In 1984, in the landmark case of Schoonheim, the Dutch Supreme Court announced an exception to the country’s laws prohibiting assisted suicide and euthanasia.[144] In Schoonheim, a physician administered a lethal injection to a ninety-five-year-old woman following repeated requests from her that the physician end her life.[145] For the first time, the Supreme Court held that the physician’s conduct was justified under a theory of “necessity” (or overmacht), finding that the physician acted appropriately after weighing his conflicting duties to end the patient’s suffering on the one hand and to preserve her life on the other.[146]

In 1994, the Dutch Supreme Court extended the scope of the physician’s “necessity” defense in a case called Chabot.[147] There, a physician provided lethal medication to a patient who was experiencing major depression and intense psychological suffering, but had no terminal illness. The Supreme Court held that the “necessity” defense applied even where the patient was not terminally ill and was suffering from purely psychological symptoms.[148] After Chabot, the Dutch Parliament made several unsuccessful attempts to legalize PAS and euthanasia.[149] Finally, in 2001, Parliament passed the TLRSA.[150]

1. The Netherlands’ Assisted Suicide Law

Interestingly, the TLRSA, which went into effect in April 2002,[151] did not explicitly legalize PAS and euthanasia; rather, it exempted from prosecution physicians who followed a specific due care requirement.[152] The Act amended Articles 293 and 294 of the Dutch Penal Code—which, respectively, made it a crime to “take another person’s life,”[153] and to “intentionally incite or assist another in committing suicide”[154]—by adding a paragraph that immunized physicians who satisfied the due care requirements outlined in Article 2 of the Act. These due care requirements are met where the physician:

a. holds the conviction that the request by the patient was voluntary and well-considered,

b. holds the conviction that the patient’s suffering was lasting and unbearable,

c. informed the patient about the situation he was in and about his prospects,

d. and the patient hold the conviction that there was no other reasonable solution for the situation he was in,

e. has consulted at least one other, independent physician who has seen the patient and has given his written opinion on the requirements of due care, referred to in parts a–d, and

f. has terminated a life or assisted in a suicide with due care.[155]

The Act also provides for PAS and euthanasia for minors as long as the minor’s parents are “involved in the decision process” (if the minor is between the ages of sixteen and eighteen)[156] or explicitly consent (if the minor is between the ages of twelve and sixteen).[157]

Thus, under the TLRSA, both euthanasia and assisted suicide are permissible, as long as the treating physician satisfies the Act’s due care requirements. According to the Dutch Ministry of Health, Welfare and Sport, euthanasia is understood as “the termination of life by a doctor at the patient’s request, with the aim of putting an end to unbearable suffering with no prospect of improvement.”[158] In the Ministry’s view, this definition includes assisted suicide.[159] “Withdrawing or refraining from medical treatment at a patient’s request,” however, is not considered euthanasia; nor is a physician’s attempt to relieve pain with strong medication that incidentally hastens the patient’s death.[160]

The TLRSA does not require a patient seeking assistance in death to suffer from a terminal illness. Instead, the Act simply mandates that the patient’s suffering be “lasting and unbearable.”[161] In addition, the TLRSA lacks a requirement that the physician assess the patient’s competence to request death. While the Act does require physicians to ensure that the patient’s request was “voluntary and well-considered,” and that the patient has accepted “that there was no other reasonable solution,”[162] the Act leaves open the possibility that patients with severe psychological illnesses, such as major depression or schizophrenia, may be granted assistance in death despite a potential lack of competence in requesting it.

2. The Netherlands as a Potential Death Tourist Destination

The Ministry of Health, Welfare and Sport has downplayed the idea that the Netherlands can serve as an attractive death tourist destination. In response to the question, “Can patients from other countries come to the Netherlands for euthanasia?” the Ministry has stated:

No. This cannot happen because a close doctor-patient relationship is required. Under the new Act, a patient’s suffering must be unbearable, with no prospect of improvement, and his request for euthanasia must be voluntary, carefully considered and repeated. To assess these criteria, a doctor has to know a patient well. This means that the patient needs to have been seeing the doctor for some time already.[163]

Contrary to the Ministry’s position, it is, in fact, feasible for the Netherlands to play a role in the death tourism industry. Although a close doctor-patient relationship is endorsed, several of the TLRSA’s provisions actually undermine the Ministry’s stance. First, noticeably absent from the TLRSA’s criteria is a requirement that the patient be a resident of the Netherlands. Second, while the TLRSA requires the treating physician to consult an independent physician, who must see the patient and confirm in writing the requirements of due care,[164] the Act does not dictate a specific amount of time required between the patient’s initial request for death, the two physicians’ evaluations, and the ultimate life-ending act. Consequently, it is conceivable that a foreign citizen could travel to the Netherlands, see a primary and consulting physician in a matter of days, and be assisted in death. Finally, the TLRSA’s omission of a terminal illness requirement makes the Netherlands an attractive option for a wider group of potential death tourists, including those suffering from depression, physical disabilities, and other non-life-threatening illnesses.

Despite these factors, death tourism has thus far not proven to be a significant concern in the Netherlands. This may be attributed to the culture of the Dutch medical community, which favors long-standing relationships between physicians and patients,[165] making it unlikely that a physician would agree to assist a patient in death after having just met and evaluated her. Additionally, Dutch physicians enjoy wide discretion in deciding whether to grant a patient’s request for PAS or euthanasia,[166] providing another explanation for the rare incidence of death tourism in the country. Still, the language of the TLRSA makes the Netherlands a more viable death tourist destination than its leaders would care to admit.

D. Switzerland

This Note has thus far considered the laws of three countries: the United Kingdom—where both assisted suicide and euthanasia are strictly forbidden, though new guidelines issued by the DPP may relax the prosecution of assisted suicide in some cases; the United States—where only Oregon and Washington have passed laws permitting PAS in certain situations, and euthanasia remains unconditionally prohibited; and the Netherlands—where assisted suicide and euthanasia are allowed as long as the physician satisfies the TLRSA’s requirements of due care. At this point, it is important to mention that in addition to the Netherlands and the aforementioned states in the United States, there are only three other countries that currently allow assisted suicide. Those countries are Belgium, Luxembourg, and Switzerland.[167] This Note does not address the laws of the former two,[168] but will instead focus on the latter country in this final part of the analysis.

1. The Law in Switzerland

Switzerland currently boasts the most liberal assisted suicide laws of any country in the world.[169] It has approved of the practice for over sixty years.[170] Although it does not permit euthanasia, the Swiss law contains several key features that make the country the most popular destination for death tourists today.[171]

Articles 114 and 115 of the Swiss Penal Code govern end-of-life jurisprudence in Switzerland. Article 114 provides, “[a] person who, for decent reasons, especially compassion, kills a person on the basis of his or her serious and insistent request, will be sentenced to a term of imprisonment [between three days and three years].”[172] In other words, active euthanasia is expressly banned. Article 115 provides, “[a] person who, for selfish reasons, incites someone to commit suicide or who assists that person in doing so will, if the suicide was carried out or attempted, be sentenced to a term of imprisonment [. . .] of up to five years.”[173] The negative implication of this provision is that a person who assists another in committing suicide for unselfish reasons will not be punished. Such, in fact, is precisely the case: assisted suicide is permissible under Swiss law as long as the assisting party is not motivated by selfishness.[174]

There are several important aspects of the Swiss law that distinguish it from that of other countries. First, and most strikingly, the Swiss law does not limit assisted suicide to physicians.[175] Thus, whereas the Netherlands and the States of Oregon and Washington require a physician to oversee the patient’s death, the Swiss law allows any individual to assist another in committing suicide. This is especially significant because the lack of legally-mandated physician presence enables clinics such as Dignitas to operate using clinical workers and volunteers. Second, the Swiss law does not require a second opinion from a consulting physician before the patient is granted her request to die.[176] This omission is in stark contrast to the laws of both the Netherlands and the United States, where attending physicians must refer the patient to a consulting physician before providing the patient with a prescription for lethal medication. In practice, these first two features of the Swiss law make it possible to grant a patient assistance in suicide relatively quickly after she makes her initial request.[177]

A third significant feature of the Swiss law is that it does not require that the patient be terminally ill or suffer from a severe physical disability.[178] This aspect of the law has generated perhaps the most criticism from the international community.[179] Dignitas founder Ludwig Minelli has openly advocated helping healthy individuals commit suicide, and has admitted that the Dignitas clinic helps kill non-terminally ill patients with schizophrenia and bipolar disorder.[180] Although the Dutch law also lacks a terminal illness requirement, the TLRSA nevertheless requires the patient’s suffering to be “lasting and unbearable,” and the physician must be certain that the patient’s request was voluntary and well-considered.[181] Under the Swiss law, however, the combination of assistance to the non-terminally ill and failure to ensure the patient’s competence and voluntariness results in the realistic possibility of patients being killed even if they are suffering from mental disorders that adversely affect their decision-making abilities.

In addition to these features, the Swiss law’s final defining characteristic, the absence of a residency requirement, makes Switzerland the most popular destination for death tourists. Indeed, as one commentator has stated, “[p]erhaps the status of the Netherlands and Belgium (and eventually Luxembourg) as death-tourism destinations remains untested because Switzerland offers an unambiguous opportunity for assisted suicide abroad.”[182]

Thousands of individuals have been assisted in obtaining death in one of Switzerland’s several assisted suicide clinics. The largest of these clinics, EXIT, has been operating since 1982 and currently has over fifty thousand members.[183] EXIT sets itself apart from Dignitas in a number of ways. Although Swiss law does not require it, EXIT only accepts terminally ill or severely suffering patients.[184] EXIT also ensures that patients have proper capacity to request assisted suicide and will not grant such a request if the patient is suffering from depression.[185] Finally, EXIT only accommodates Swiss citizens or foreign citizens who permanently reside in Switzerland.[186] In light of these practices, it appears that EXIT is not a significant player in the death tourism industry.

Dignitas is reportedly the only clinic that accepts non-resident patients. It is thus the driving force behind the death tourism phenomenon. Dignitas has helped hundreds of foreign citizens commit suicide, more than one hundred of whom have come from the United Kingdom.[187] It also currently possesses over eight hundred British members,[188] and more than half of its non-resident patients have come from the United Kingdom and Germany.[189] Minelli has stated that he believes the right to die is the very last human right, and there can be no discrimination in the granting of this right simply based on an individual’s residence.[190] Therefore, he sees no reason to restrict Dignitas’s services solely to citizens or residents of Switzerland.

According to Minelli, media reports that patients can arrive at the clinic and commit suicide that same day are sensationalized.[191] He claims that there is a more formal process in place: first, the patient has to become a member of Dignitas, which includes paying a registration fee and annual membership; then, the patient must send a letter of request and her medical file.[192] Once a patient takes these steps, Dignitas arranges an appointment for the patient with a physician (recall that the Swiss law does not require a physician to participate in the assisted suicide), who will meet with the patient and ultimately determine whether he will write a prescription for lethal medication.[193] Minelli emphasizes that, in accordance with the Swiss prohibition on euthanasia, the patient must be able to take the ultimate life-ending act herself.[194]

Despite Minelli’s assurances that Dignitas takes procedural precautions against death tourists, the clinic remains the most viable option for patients seeking a “quick death.” The Swiss assisted suicide law has no residency or terminal illness requirement and does not mandate that the assisting party be a physician; the law only prohibits assisted suicide for selfish reasons.[195] While EXIT nevertheless accepts primarily Swiss patients who are terminally ill or severely suffering, Dignitas accommodates a much wider range of patients seeking death. As a result of Switzerland’s permissive assisted suicide law, Dignitas has established the country as the death tourist capital of the world.

2. The Future of Dignitas

For all of the criticism it has endured, Dignitas remains committed to its goals and methods. However, in the wake of the Downes’ story and increasingly intense debate about the clinic’s practices, the Swiss government has threatened tighter regulations of assisted suicide organizations and possible closure of the Dignitas clinic. In October 2009, the government proposed two bills for public debate:[196] the first of these bills proposed stricter duties of care for employees of assisted suicide organizations, while the second bill proposed a complete ban on organized assisted suicide.[197] Groups of cantons, political parties, and other organizations deliberated on the bills, and while a majority ultimately rejected both, they agreed that some type of federal-level action was necessary.[198] The first bill, which would have required assisted suicide patients to be terminally ill and three physicians to confirm a patient’s legal capacity to make the decision and verify the presence of a terminal illness, was criticized as too complex, opaque, and discriminatory.[199] The second bill, which would have completely banned the practices of assisted suicide clinics, was rejected as an unlawful restriction on the patient’s right of self-determination.[200]

Recognizing the desire of the public for some type of regulation of assisted suicide organizations, in September 2010, the Swiss Federal Council announced that it would instruct the Federal Department of Justice and Police to revise the first bill and the Federal Department of Home Affairs to make recommendations to improve suicide prevention and palliative care.[201] Both bodies were expected to submit their proposals to the Swiss parliament by the end of 2010,[202] at which point parliament would engage in a debate over a future course of action. According to Justice Minister Markus Notter, any new legislation would not ban suicide trips to Switzerland, but would effectively end “quick suicides” for foreign citizens.[203] Although it is possible that new legislation may force Dignitas to significantly change its practices, the opportunities created by Switzerland’s assisted suicide law could lead to the establishment of more clinics like Dignitas that accommodate death tourists.

IV. SOFT LAW REGULATION OF INTERNATIONAL DEATH TOURISM

Death tourism is a divisive issue that engenders public and political debate about a largely private and non-political topic. It produces a wide array of opinions, based on varying ideological beliefs and political views. Some may consider death tourism a wonderful possibility, one that recognizes the fundamental right to “die with dignity” and grants patients an opportunity to achieve that which their own country denies them.[204] Others, however, may perceive death tourism as an exploitative venture, one that disregards legal principles of comity and sovereignty.

Those who fall into the first category might wonder: Why do anything about death tourism at all? How is death tourism any different from individuals traveling to foreign countries and engaging in activities that are unavailable or forbidden in their own countries? After all, assisted suicide is legal in Switzerland. What obligation does Switzerland have to actively deny British citizens the same right it extends to its own citizens? These questions are legitimate and well-founded. As mentioned earlier, this Note’s purpose is not to advocate or object to assisted suicide. Rather, this Note argues that assisted suicide is inherently different from any other activity in which citizens engage while abroad. The moral implications of assisted suicide and its unalterable finality distinguish it from such activities as experimenting with illicit drugs or engaging in benign mischief. It is a practice to which nations have been afforded a margin of appreciation in regulation and enforcement.[205] Because of its unique and absolute consequences, assisted suicide transcends domestic restrictions and implicates core principles of sovereignty and international comity. The current system, which encourages individuals to shop for clinics that abide by the least restrictive assisted suicide laws, offends these core principles and should be regulated.

At first glance, it appears that death tourism is largely an internal phenomenon, operating solely in Switzerland, and even more exclusively, only in the Dignitas clinic. However, as mentioned above, Switzerland’s position as the unequivocal leader of the death tourism industry may explain why countries such as the Netherlands and Belgium have not drawn similar appeal.[206] Even the prospective domestic regulation of clinics such as Dignitas may not fully inhibit the trend, as current laws leave open the possibility that other clinics in Switzerland or elsewhere may emerge. Therefore, international regulation of death tourism is essential in curtailing the practice.

The most effective tool for curtailing death tourism is an instrument of soft law. As explained below, the informality and flexibility of soft law, as well as its persuasive mechanisms, make it uniquely suited for regulating morally and ethically charged issues such as assisted suicide. Part A defines soft law and distinguishes it from the traditional concept of hard law. Part B then explains why soft law provides a more favorable means of regulating death tourism than a hard law alternative.

A. Soft Law as a Less Formal and More Conciliatory Framework Than Hard Law

There are several approaches to defining soft law. As Professor Andrew T. Guzman explains, one approach is to identify what soft law is not.[207] It is not hard law, “meaning [it is not] treaties or custom, nor is it a purely political understanding without a legal component.”[208] Instead, it is “what lies between these two alternatives.”[209] Another approach is to define soft law as a system of norms or principles that guide states’ actions, rather than a framework of formal rules.[210] In its clearest sense, soft law is a non-binding, informal instrument of international law that imposes moral or political commitments on nations, rather than legal obligations. It includes instruments such as declarations, recommendations, charters, and resolutions.[211]

Soft law differs in several important respects from hard law, the “classic” concept of international law. The most basic difference is that soft law is non-binding. Thus, whereas hard law has actual binding effect (such as a treaty upon ratification, or a custom that has “hardened” into actual law), soft law is only “potentially binding.”[212] In other words, soft law can be conceived as a proposal that will gradually evolve into hard law. A clear example of this is the Universal Declaration of Human Rights, which has, since its creation in 1948, gained acceptance as customary international law.[213] A second difference between soft and hard law is that soft law is less formal, and thus involves fewer procedural costs and enables quicker implementation than a treaty, which requires formal ratification.[214] A third difference is in the enforcement of soft and hard law. Unlike hard law, which is more readily enforceable through judicial intervention, dispute resolution, or sanctions, soft law depends almost entirely on the willingness of states to regulate their own actions and fulfill their own commitments. These differences lead many to dismiss soft law as a weaker form of an already practically unenforceable international legal system.[215] In contrast to this view, however, there are advantages to adopting a soft law instrument instead of a hard law instrument.

The fact that soft law is non-binding encourages states to agree to its terms. Soft law’s non-binding effect assures states that they will not be sanctioned for violating an agreement, and gives states flexibility in determining the extent of their obligations. One may wonder: If the agreement is non-binding, then what is the point of implementing it at all? The answer is that more states are likely to acquiesce to the agreement, which can lead to international compromise and mutually beneficial cooperation.[216] Furthermore, in the absence of direct sanctions, non-binding agreements can still impose “reputational” sanctions, which can be just as costly for states in the international arena. For example, states that violate international commitments signal to other states that they do not take such commitments seriously. Thus, when these states seek to enter into more formal agreements in the future, other states will take into account their previous actions and may be less willing to make concessions or compromises to accommodate the offending states.[217]

In addition, the informality of soft law instruments makes the process of agreeing to them much simpler than that for hard law instruments. The lack of a requirement of ratification allows states to reduce their “contracting costs,” such as the costs of negotiating and consulting with legal specialists, as well as their “sovereignty costs,” such as the potential for inferior outcomes, loss of authority and control, and the diminution of sovereignty.[218] Without these costs, states are much more willing to acquiesce to certain commitments and to recognize their obligations under those commitments. The less formal framework of soft law also provides for quicker implementation and a more direct influence on states’ behavior[219] than would a long and drawn out treaty-making process.

Finally, the soft enforcement, or “dispute avoidance,”[220] of soft law can lead to more cooperative and conciliatory resolution of disputes. Rather than being adjudicated in an international court or subjected to compulsory settlement procedures, soft enforcement can take the form of negotiated inducements through a neutral third party or independent problem solving. Professor Alan E. Boyle cites the non-compliance procedure adopted by the parties to the 1987 Montreal Protocol to the Ozone Convention as an example.[221] Any party to the protocol can invoke the procedure, at which point the matter is referred to an Implementation Committee for investigation. The committee considers the information at hand and produces a report that calls for an amicable solution.[222] This solution can include the provision of financial, technical, or training assistance to the non-complying party. If this is insufficient, the committee can issue a caution against the party, or even suspend its rights if necessary.[223] Whatever the ultimate solution, its significance is that soft law enforcement avoids obligatory and adversarial dispute resolution, and thus protects the legal interests of the parties involved.

B. A Soft Law Instrument is Favorable in Dealing with Death Tourism

With this backdrop of hard versus soft law in mind, it is evident that an instrument of soft law would most effectively curtail death tourism. A multilateral treaty is neither prudent nor feasible in this context. Indeed, Switzerland has no incentive in ratifying a treaty that prohibits it from extending its own assisted suicide guarantees simply on the basis of residency. Although its assisted suicide clinics are non-profit,[224] Switzerland’s economy undoubtedly benefits from being the sole destination for many prospective PAS patients and their families. It would be an egregious affront to the country’s sovereignty if it were forced to deny a valid and legal protection of its laws to non-residents. Switzerland would suffer extremely high “sovereignty costs” in such an arrangement, and would face the threat of monetary sanctions for essentially abiding by its own laws within its jurisdiction.

Instead of a treaty, the United Nations General Assembly should propose a recommendation to decrease the incidence of death tourism. This recommendation should call for international comity through the recognition of, and respect for, other nations’ assisted suicide laws. Thus, a non-terminally ill British citizen, who faces a ban against assisted suicide in her own country, would not be able to travel to Switzerland to be assisted in death in disregard of the U.K.’s assisted suicide protocol. Similarly, a United States citizen residing in California, who suffers from lasting and unbearable pain as a result of a physical injury, would not be able to travel to the Netherlands and be euthanized after meeting with an attending and consulting physician. The recommendation would not ban assisted suicide or attempt to influence states’ legislation on the subject within their own territory. Rather, it would simply call on states to abide by their neighbors’ laws in the context of assisted suicide and prevent the spread of death tourism.

A recommendation from the General Assembly would necessarily be non-binding on the states that adopt it. Notwithstanding this aspect of the proposal, it is likely that a large number of states would agree to its terms. Only three states in the United States and four other countries in the world legally recognize some form of assisted suicide.[225] In one way or another, nearly all of these countries have dismissed or expressed concern over its potential as a death tourist destination.[226] Therefore, it is not overly ambitious to predict that nearly every state that is asked to adopt the recommendation would do so. Those states that refuse to, while not in violation of any legal obligation, could face international pressure from states that either prohibit or heavily regulate assisted suicide.

Additionally, the recommendation’s informal nature would lead to quick implementation and an almost immediate impact on states’ behavior. States would face little to no contracting costs in adopting the recommendation and would retain substantial flexibility in framing their own assisted suicide laws.

Finally, the soft enforcement mechanism afforded by the recommendation would grant states relative freedom in settling disputes if a party violates its commitment. States may choose to form an independent committee to oversee the regulation of the recommendation or they may choose to separately engage in cooperative dispute resolution. The recommendation would effectively serve to inform states of their mutual commitments, while simultaneously preserving their rights as sovereign nations to pass their own laws and govern behavior within their own borders.

V. CONCLUSION

Death tourism is a phenomenon that has produced both wide-ranging debate about the legitimacy of end-of-life practices and declarations by international leaders that their countries will not become breeding grounds for death tourists. It has prompted individuals to appeal to their countries’ lawmakers to legalize assisted suicide so that terminally ill patients would not have to travel abroad to end their suffering. Regardless of one’s views about the legality or morality of assisted suicide, most would agree that a one-way ticket for a “quick death” is hardly equivalent to a vacation that involves some irresponsible recreational activities. Still, proponents of assisted suicide may maintain that death tourists are simply taking advantage of duly enacted laws that govern the countries to which they travel.

There are currently only a handful of nations that allow assisted suicide.[227] Of these nations, only Switzerland has thus far played a significant role in the death tourism industry.[228] A change in Swiss law, however, is not necessary to deal with death tourism. As a sovereign nation, Switzerland has every right to pass laws legalizing assisted suicide. Rather, this is an issue that demands international regulation.

An instrument of soft law, in the form of a recommendation from the United Nations General Assembly, would be the most effective tool for reducing death tourism. The recommendation would be non-binding, yet it would attract the vast majority of countries that are asked to adopt it. It would grant states flexibility in determining their own obligations, while placing pressure on those states that are reluctant to fulfill their commitments. The recommendation’s informal nature would allow it to go into effect almost immediately, which would result in a direct and rapid influence on states’ actions. Finally, it would encourage cooperative dispute resolution and help states avoid the high costs of formal adoption, implementation, and enforcement.

Sir Edward and Lady Joan were neither the first nor likely the last couple to achieve their wish of dying together. Without proper international regulation of death tourism in place, it will not be long before a severely depressed, yet physically healthy teenager is able to purchase a train ticket to a neighboring country and convince a volunteer clinical worker that she would like to end her life.

* J.D., Loyola Law School Los Angeles, 2011; B.A., University of Southern California, 2008. I would like to thank my parents for their unconditional love and support. I would also like to thank my friends Dan Hauptman, who gave me the idea for this note, and Jordan Ludwig and Michael Pearson, for proofreading it and providing input.

1 . John F. Burns, With Help, Conductor and Wife Ended Lives, N.Y. Times (July 14, 2009), http://www.nytimes.com/2009/07/15/world/europe/15britain.html.

2 . Id.

3 . Id.

4 . Id.

5 . Id.

6 . See Fiona Fleck, Dignitas “Helps Physically Healthy to Die”, Telegraph (Jan. 26, 2003, 12:01 AM), http://www.telegraph.co.uk/news/worldnews/europe/switzerland/1420106/ Dignitas-helps-physically-healthy-to-die.html.

7 . UK Couple Die at Suicide Clinic, BBC News (Apr. 15, 2003, 17:33 GMT), http://news. bbc.co.uk/2/hi/uk_news/2948365.stm.

8 . Id.

9 . See Daniel Foggo, Why Daniel James Chose to Die, Sunday Times (Oct. 19, 2008), http://www.timesonline.co.uk/tol/news/uk/article4969423.ece.

10 . Rohith Srinivas, Exploring the Potential for American Death Tourism, 13 Mich. St. U. J. Med. & L. 91, 94 (2009); see Hilary White, Switzerland Refuses to Alter Assisted Suicide Law to Nix Death Tourism, LifeSiteNews.com (June 2, 2006, 11:15 EST), http://www.lifesitenews. com/ldn/2006/jun/06060210.html.

11 . A Public Consultation on the DPP’s Interim Policy for Prosecutors on Assisted Suicide, Crown Prosecution Serv., http://www.cps.gov.uk/consultations/as_index.html (last visited Sept. 6, 2011).

12 . Press Release, Swiss Federal Council, Specific Regulations for Organised Assisted Suicide in Switzerland; Swiss Federal Council Acknowledges Results of Consultation Process (Sept. 17, 2010), http://www.admin.ch/br/aktuell/00091/index.html?lang=en&msg-id=35187 [hereinafter Swiss Federal Council Press Release].

13 . See Srinivas, supra note 10, at 102–03.

14 . See, e.g., Steven Ertelt, Switzerland Government Official Wants Assisted Suicide Death Tourism to Stop, LifeNews.Com (July 14, 2008, 9:00 AM), http://www.lifenews.com/bio2510. html (Swiss Minister Eveline Widmer-Schlumpf seeking to curb death tourism in Switzerland).

15 . Id. (stating that as of May 2008, the number of individuals, especially British citizens, choosing to end their lives at Dignitas was on the rise).

16 . Part IV of this Note elaborates on the definition of soft law and explores the benefits of utilizing a soft law instrument rather than an instrument of “hard law,” such as a binding treaty. For now, a sufficient working definition of soft law is an informal, non-binding instrument, such as a resolution or recommendation, that can be viewed as a third source of international law, in addition to treaties and customary international law.

17 . See Lara L. Manzione, Is There a Right to Die?: A Comparative Study of Three Societies (Australia, Netherlands, United States), 30 Ga. J. Int’l & Comp. L. 443, 445 (2002) (noting that “[t]he term euthanasia is more routinely used by the population at large as a general one to mean any form of hastened death”).

18 . See Srinivas, supra note 10, at 94.

19 . Although assisted suicide does not have to involve a physician, most commentators prefer this term since it is generally the case that a physician is required to provide the patient with the appropriate means to end her life (i.e., by writing a prescription). See, e.g., Wash. Rev. Code Ann. § 70.245.020(1) (West 2010); Or. Rev. Stat. § 127.805 (2003).

20 . Opinion 2.211: Physician-Assisted Suicide, Am. Med. Ass’n, http://www.ama-assn.org /ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.shtml (last visited Sept. 6, 2011).

21 . Manzione, supra note 17, at 445.

22 . See Wendy N. Weigand, Has the Time Come for Doctor Death: Should Physician-Assisted Suicide be Legalized?, 7 J.L. & Health 321, 322–23 (1992–93).

23 . Id. at 322.

24 . See Lindsay Pfeffer, Note, A Final Plea for “Death With Dignity”: A Proposal for the Modification and Approval of the Assisted Dying for the Terminally Ill Bill in the United Kingdom, 15 Cardozo J. Int’l & Comp. L. 497, 510 (2007).

25 . See N. Ferreira, Latest Legal and Social Developments in the Euthanasia Debate: Bad Moral Consciences and Political Unrest, 26 Med. & L. 387, 389 (2007).

26 . See Remigius N. Nwabueze, Biotechnology and the New Property Regime in Human Bodies and Body Parts, 24 Loy. L.A. Int’l & Comp. L. Rev. 19, 55–57 (2002) (explaining the distinction between refusal of life-sustaining treatment, which is a constitutional right recognized in the United States, and assisted suicide or [active] euthanasia).

27 . Raphael Cohen-Almagor, Euthanasia and Physician-Assisted Suicide in the Democratic World: A Legal Overview, 16 N.Y. Int’l L. Rev. 1, 3 (2003).

28 . See Kelly Green, Physician-Assisted Suicide and Euthanasia: Safeguarding Against the “Slippery Slope”—The Netherlands Versus the United States, 13 Ind. Int’l & Comp. L. Rev. 639, 645 (2003).

29 . See Srinivas, supra note 10, at 95.

30 . See Ferreira, supra note 25, at 390.

31 . Id. at 392.

32 . See Srinivas, supra note 10, at 95.

33 . See Green, supra note 28, at 642.

34 . Id. at 643.

35 . Id.

36 . Id.

37 . See Ferreira, supra note 25, at 391.

38 . See id. at 392.

39 . See id. at 391.

40 . Id.

41 . Id.; Green, supra note 28, at 646.

42 . See Green, supra note 28, at 646.

43 . See id. at 647–48.

44 . See id.

45 . Id. at 649.

46 . Id. at 649–50.

47 . Pfeffer, supra note 24, at 521; see Lords Block Assisted Dying Bill, BBC News (May 12, 2006, 16:43 GMT), http://news.bbc.co.uk/2/hi/health/4763067.stm.

48 . Caroline Davies, Assisted Suicide Guidelines Will Ease Fears, Says DPP, Guardian (Sept. 23, 2009, 21:23 BST), http://www.guardian.co.uk/society/2009/sep/23/assisted-suicide-guidelines-dpp.

49 . Suicide Act, 1961, 9 & 10 Eliz. 2, c. 60, §§ 1–2 (Eng.).

50 . Id. § 2(1).

51 . Pfeffer, supra note 24, at 498.

52 . John Keown, European Court of Human Rights: Death in Strasbourg—Assisted Suicide, the Pretty Case, and the European Convention on Human Rights, 1 Int’l J. Const. L. 722, 723 (2003); see Suicide Act, 1961, supra note 49, § 2(4) (stating that “no proceedings shall be instituted for [assisted suicide] except by or with the consent of the Director of Public Prosecutions”).

53 . Keown, supra note 52, at 722.

54 . Id. at 723.

55 . Pretty v. Dir. of Pub. Prosecutions, [2001] EWHC (Admin) 788, [31]–[32], [66] (Eng.).

56 . Keown, supra note 52, at 723.

57 . See id. (discussing each of Ms. Pretty’s arguments before the ECHR).

58 . See id.; Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states, “[e]veryone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 2, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECHR].

59 . See Pretty v. United Kingdom, App. No. 2346/02, 35 Eur. H.R. Rep. 1, 4–8 (2002); Keown, supra note 52.

60 . ECHR, supra note 58, art. 3.

61 . See Keown, supra note 52, at 724.

62 . Pretty, 35 Eur. H.R. Rep. at 9.

63 . ECHR, supra note 58, art. 8.

64 . See Pretty, 35 Eur. H.R. Rep. at 4.

65 . See Pretty v. United Kingdom, App. No. 2346/02, 35 Eur. H.R. Rep. 1, 3–4 (2002).

66 . See ECHR, supra note 58, art. 9.

67 . See Pretty, 35 Eur. H.R. Rep. at 3–4.

68 . See ECHR, supra note 58, art. 14.

69 . See Pretty, 35 Eur. H.R. Rep. at 40.

70 . See id. at 4–5.

71 . Paul Raine, A Right to Die? The Case of Diane Pretty (2006) (on file with the Loyola of Los Angeles International & Comparative Law Review); Pfeffer, supra note 24, at 503.

72 . Id.

73 . Assisted Dying for the Terminally Ill Bill, 2005, H.L. Bill [36] (Gr. Brit.).

74 . Id. § 1.

75 . See id. §§ 1–16; John Coggon & Søren Holm, The Assisted Dying Bill—”Death Tourism” and European Law (2006), available at http://www.ccels.cf.ac.uk/archives/issues/2006/ coggon_holm.pdf.

76 . Diana Hassel, Sex and Death: Lawrence’s Liberty and Physician-Assisted Suicide, 9 U. Pa. J. Const. L. 1003, 1025 n.133 (2007).

77 . See Isabel Oakeshott, Lord Falconer Backs Suicide Reform, Sunday Times (May 31, 2009), http://www.timesonline.co.uk/tol/news/politics/article6395949.ece.

78 . Id.

79 . See Liam Creedon, New Guidelines Ease Relatives’ Fear of Assisted Suicide, Independent (Sept. 23, 2009), http://www.independent.co.uk/life-style/health-and-families/ health-news/new-guidelines-ease-relatives-fear-of-assisted-suicide-1791910.html.

80 . See id.

81 . See Francis Gibb & Helen Nugent, MS Sufferer Loses Battle on Assisted Suicide, Times, Oct. 30, 2008, at N1.

82 . Id.

83 . See Dir. of Pub. Prosecutions, Interim Policy for Prosecutors in Respect of Cases of Assisted Suicide (2009), available at http://www.cps.gov.uk/consultations/as_ consultation.pdf.

84 . See A Public Consultation on the DPP’s Interim Policy for Prosecutors on Assisted Suicide, Crown Prosecution Serv., http://www.cps.gov.uk/consultations/as_index.html (last visited Sept. 6, 2011).

85 . See Dir. of Pub. Prosecutions, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide, Crown Prosecution Serv. (Feb. 2010), http://www.cps.gov. uk/publications/prosecution/assisted_suicide_policy.html.

86 . Id. ¶ 1.

87 . Id. ¶ 13.

88 . Id.

89 . Id. ¶ 17.

90 . Id. ¶¶ 38–39.

91 . There are sixteen total factors that weigh in favor of prosecution. See id. ¶ 43(1)–(2), (5), (7).

92 . There are six total factors that weigh against prosecution. See id. ¶ 45(1)–(2), (6).

93 . Id. ¶ 6.

94 . Press Release, Crown Prosecution Serv., DPP Publishes Assisted Suicide Policy, available at http://www.cps.gov.uk/news/press_releases/109_10/.

95 . Caroline Davies, Assisted Suicide Guidelines Will Ease Fears, Says DPP, Guardian (Sept. 23, 2009, 21:23 BST), http://www.guardian.co.uk/society/2009/sep/23/assisted-suicide-guidelines-dpp.

96 . See Vacco v. Quill, 521 U.S. 793, 798–99 (1997).

97 . See Oregon Death with Dignity Act, Or. Rev. Stat. §§ 127.800–.995 (2003); Wash. Rev. Code. § 70.245 (2009).

98 . Baxter v. State, No. ADV-2007-787, 2008 Mont. Dist. LEXIS 482 (Dec. 5, 2008), vacated, 2009 MT 449.

99 . Kirk Johnson, Montana Ruling Bolsters Doctor-Assisted Suicide, N.Y. Times (Dec. 31, 2009), http://www.nytimes.com/2010/01/01/us/01suicide.html.

100 . Baxter v. State, 2009 MT 449, 354 Mont. 234, 224 P.3d 1211. Under Montana law, a victim’s consent to a crime is a defense to that crime. Mont. Code Ann. tit. 45, § 45-2-211(1) (2009). However, there are four exceptions to the consent defense, the relevant one here being a violation of public policy in recognizing the defense. Id. § 45-2-211(2).

101 . See Vacco, 521 U.S. at 804–05.

102 . Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 269 (1990).

103 . Id. at 265–66.

104 . Id. at 277.

105 . Id. at 269.

106 . Id. at 302 (Brennan, J., dissenting).

107 . Washington v. Glucksberg, 521 U.S. 702, 725 (1997).

108 . Id. at 728–32, 735.

109 . See Yale Kamisar, Can Glucksberg Survive Lawrence? Another Look at the End of Life and Personal Autonomy, 24 Issues L. & Med. 95, 102–03 (2008).

110 . Glucksberg, 521 U.S. at 735.

111 . Vacco v. Quill, 521 U.S. 793, 797 (1997).

112 . Id. at 797–98.

113 . Id. at 800–01.

114 . Id. at 807–08.

115 . See id. at 799.

116 . Srinivas, supra note 10, at 101.

117 . Trevor Stiles, Gonzales v. Oregon and the Future of Agency-Made Criminal Law, 97 J. Crim. L. & Criminology 1261, 1269 (2007).

118 . Cohen-Almagor, supra note 27, at 13.

119 . Or. Rev. Stat. § 127.805 (2003).

120 . Or. Rev. Stat. § 127.800(3) (2003).

121 . Id. § 127.800(12).

122 . § 127.830.

123 . Or. Rev. Stat. § 127.810 (2003).

124 . Or. Rev. Stat. § 127.815(1)(a) (2003).

125 . Id. § 127.815(1)(c).

126 . Id. § 127.815(1)(d); see id. § 127.815(1)(b), (e) (remaining requirements of the attending physician).

127 . Id. § 127.815(1)(L).

128 . Or. Rev. Stat. § 127.850 (2003).

129 . Srinivas, supra note 10, at 101.

130 . Id. at 101–02.

131 . See, e.g., Wash. Rev. Code Ann. § 70.245.020(1) (West 2010) (using the word “competent” rather than “capable,” and adding language indicating that the patient should self-administer the medication prescribed by the attending physician); Wash. Rev. Code Ann. § 70.245.130 (West 2010) (omitting the ability to demonstrate residency in the state by providing proof of a state tax return).

132 . Or. Rev. Stat. § 127.860 (2003); Wash. Rev. Code Ann. § 70.245.130 (West 2010).

133 . Or. Rev. Stat. § 127.860(1)–(4). These factors are not exhaustive. Id. § 127.860.

134 . Wash. Rev. Code Ann. § 70.245.130 (West 2010).

135 . See Or. Rev. Stat. § 127.860.

136 . See id.

137 . See Wash. Rev. Code Ann. § 70.245.020(1) (West 2010).

138 . Or. Rev. Stat. § 127.805 (2003); Wash. Rev. Code Ann. § 70.245.110 (West 2010).

139 . See Or. Rev. Stat. § 127.840 (2003); Or. Rev. Stat. § 127.845 (2003); Wash. Rev. Code Ann. § 70.245.090 (West 2010); Wash. Rev. Code Ann. § 70.245.100 (West 2010).

140 . See Srinivas, supra note 10, at 101.

141 . Wet Toetsing Levensbeëindiging op Verzoek en Hulp Bij Zelfdoding [Termination of Life on Request and Assisted Suicide (Review Procedures) Act], Stb. 2001, nr. 194 (Neth.) [hereinafter TLRSA], available at http://www.nvve.nl/nvve-english/pagina.asp?pagkey=72087 (English trans.).

142 . Cohen-Almagor, supra note 27, at 5.

143 . See John Griffiths et al., Euthanasia and Law in The Netherlands 46–49 (1998).

144 . HR 27 november 1984, NJ 1985, 106 m.nt. (Schoonheim) (Neth.), translated in Griffiths et al., supra note 143, at 322–28.

145 . Id. at 323.

146 . Neil M. Gorsuch, The Legalization of Assisted Suicide and the Law of Unintended Consequences: A Review of the Dutch and Oregon Experiments and Leading Utilitarian Arguments for Legal Change, 2004 Wis. L. Rev. 1347, 1355 (2004).

147 . HR 21 juni 1994, NJ 1994, 656 m.nt. (Chabot) (Neth.), translated in Griffiths et al., supra note 143, at 329–40.

148 . Gorsuch, supra note 146, at 1356–57.

149 . Id. at 1357.

150 . Id.

151 . TLRSA, supra note 141.

152 . See id. art. 293, ¶ 2.

153 . See Sr. art. 293 (Neth.), translated in Griffiths et al., supra note 143, at 308.

154 . Id.

155 . TLRSA, supra note 141, art. 2.

156 . Id. art. 2, ¶ 3.

157 . Id. art. 2, ¶ 4.

158 . Ministry of Health, Welfare and Sport, Euthanasia: The Netherlands’ New Rules 2 (2002), available at http://english.minvws.nl/includes/dl/openbestand.asp?File=/images /broch-euthanasia-eng_tcm20-108102.pdf.

159 . Id.

160 . Id.

161 . TLRSA, supra note 141, art. 2, ¶ 1(b).

162 . Id. art. 2, ¶ 1(a), (d).

163 . Ministry of Health, Welfare and Sport, supra note 158, at 9.

164 . TLRSA, supra note 141, art. 2, ¶ 1(e).

165 . See Green, supra note 28, at 679.

166 . See Griffiths et al., supra note 143, at 304.

167 . Srinivas, supra note 10, at 103.

168 . The law in Belgium is similar both facially and in practice to the law in the Netherlands, and as a result, its analysis will not provide any additional insight to this Note. On the other hand, Luxembourg’s assisted suicide law did not go into effect until late 2008, and there is not yet enough data concerning its impact to sufficiently analyze it.

169 . See Pfeffer, supra note 24, at 509–10.

170 . Cohen-Almagor, supra note 27, at 21.

171 . See Pfeffer, supra note 24, at 512–13; Srinivas, supra note 10, at 109–10.

172 . Christian Schwarzenegger & Sarah J. Summers, Criminal Law and Assisted Suicide in Switzerland: Hearing with the Select Committee on the Assisted Dying for the Terminally Ill Bill, House of Lords 3 (2005), available at http://www.rwi.uzh.ch/ lehreforschung/alphabetisch/schwarzenegger/publikationen/assisted-suicide-Switzerland.pdf.

173 . Id. (emphasis added).

174 . Srinivas, supra note 10, at 105.

175 . Id. at 106.

176 . Pfeffer, supra note 24, at 509–10.

177 . But see Ludwig A. Minelli, Secretary General, Speech at the Friends at the End (FATE) London Meeting 6 (Dec. 1, 2007), available at http://www.dignitas.ch/images/stories/pdf/ diginpublic/referat-dignitas-in-switzerland-fate-01122007.pdf (stating that the period between the patient’s request and the “provisional green light” varies between three and eight hundred days, with an average of seventy-seven days).

178 . See Pfeffer, supra note 24, at 509–10.

179 . See supra Part I.

180 . See David Brown, Dignitas Founder Plans Assisted Suicide of Healthy Woman, Sunday Times (Apr. 3, 2009), http://www.timesonline.co.uk/tol/news/world/europe/article602 1947.ece.

181 . TLRSA, supra note 141, art. 2.

182 . Srinivas, supra note 10, at 105.

183 . See EXIT auf einen Blick, http://www.exit.ch/wDeutsch/2110002/exit_auf_einen_blick. php?navanchor=2110029 (last visited Sept. 6, 2011).

184 . Rodrigo Carrizo Couto, Assisted Suicide Activist Speaks Out on Debate, Swissinfo.ch, (Dec. 18, 2008, 21:12), http://www.swissinfo.ch/eng/Assisted_suicide_activist_speaks_out_on_ debate.html?cid=7107364 (interview with Swiss surgeon and president of EXIT, Jérôme Sobel).

185 . Id.

186 . Id.

187 . Roger Boyes, Swiss Crackdown on “Suicide Tourism” Could Spell End of Dignitas Clinic, Times (Oct. 29, 2009), http://www.timesonline.co.uk/tol/life_and_style/health/article6894 726.ece (noting that at least 119 British citizens have ended their lives at Dignitas).

188 . See id.

189 . Pfeffer, supra note 24, at 512.

190 . Minelli, supra note 177, at 3.

191 . Id. at 6.

192 . Id. at 5.

193 . Id. at 5–6.

194 . Id. at 6.

195 . Srinivas, supra note 10, at 105–06.

196 . Boyes, supra note 187.

197 . See Swiss Federal Council Press Release, supra note 12.

198 . Id.

199 . Id.

200 . Id.

201 . Id.

202 . Id.

203 . John Jalsevac, Switzerland Attempting to Curb “Suicide Tourism” with Stricter Regulations, LifeSiteNews.com (July 20, 2009, 11:15), http://www.lifesitenews.com/news/ archive/ldn/2009/jul/09072007.

204 . Minelli, supra note 177, at 1.

205 . See Emily Wada, Note, A Pretty Picture: The Margin of Appreciation and the Right to Assisted Suicide, 27 Loy. L.A. Int’l & Comp. L. Rev. 275, 275–79 (2005) (explaining that the margin of appreciation is a degree of discretion that courts have afforded states in the regulation of assisted suicide).

206 . Srinivas, supra note 10, at 105.

207 . Andrew T. Guzman, The Design of International Agreements, 16 Eur. J. Int’l L. 579, 583 n.18 (2005).

208 . Id.

209 . Id.

210 . See Alan E. Boyle, Some Reflections on the Relationship of Treaties and Soft Law, 48 Int’l & Comp. L.Q. 901, 901–02 (1999).

211 . Roberto Andorno, The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics, UNESCO (July 2007), http://www.unesco.de/1507.html?&L=0.

212 . See id.

213 . Hartmut Hillgenberg, A Fresh Look at Soft Law, 10 Eur. J. Int’l L. 499, 505 (1999).

214 . See Andorno, supra note 211.

215 . See Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 Int’l Org. 421, 422–23 (2000).

216 . Id. at 423.

217 . Guzman, supra note 217, at 596.

218 . Abbott & Snidal, supra note 215, at 434–37.

219 . See Andorno, supra note 211.

220 . Boyle, supra note 210, at 909.

221 . Id. at 910.

222 . Id.

223 . Id.

224 . See Amelia Gentleman, Inside the Dignitas House, Guardian (Nov. 18, 2009), http://www.guardian.co.uk/society/2009/nov/18/assisted-suicide-dignitas-house.

225 . Srinivas, supra note 10, at 102–03.

226 . See Swiss Federal Council Press Release, supra note 12; Ministry of Health, Welfare and Sport, supra note 158, at 9.

227 . See Srinivas, supra note 10, at 103.

228 . Id. at 105.

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