A cosmopolitan court for transnational corporate wrongdoing: Why its time has come

Journal of Business Ethics

Volumn 17, Issue 7, 1998, Pages 757-783

  Jackson, Kevin T ^a  

^a FORDHAM UNIVERSITY   (United States)

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EID: 0032067374     PISSN: 01674544     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1005728731911     Document Type: Article

References (90)

1. 1 There are a number of tribunals currently in existence which have international jurisdiction. However, all such international courts exercise jurisdiction over matters and entities other than the court being proposed herein. The International Court of Justice (ICJ) was initially established by the League of Nations in 1920 as the Permanent Court of International Justice (PCIJ). The United Nations changed the name and the structure of that court in 1945. Composed of fifteen independent jurists elected by the UN. General Assembly, the ICJ exercises contentious jurisdiction invoked by the consent of parties which consent to submission of a dispute before the court. The ICJ only entertains disputes between states; it is not open to private individuals or to corporations. Under the UN. Charter, members of the UN. may opt to have their disputes resolved by other tribunals. Other courts with international jurisdiction include the Court of Justice of European Communities, the European Court of Human Rights, and the Inter-American Court of Human Rights. Each of these courts exercises jurisdiction over the parties only by virtue of their consent. The courts' enforcement authority is limited to the agreement of the parties to comply with their decisions. Generally, national courts within each country exercise jurisdiction over business enterprises operating in the country. The presence of a business entity in a nation is generally deemed to constitute consent to the jurisdiction of that nation's courts.
2. 2 There have been numerous international tribunals with criminal jurisdiction instituted over the past 100 years. None, however, have exercised jurisdiction over corporate crimes. The most recent international criminal court to be created is the War Crimes Tribunal for the former Yugoslavia, established by the United Nations to prosecute individuals charged with war crimes committed during the Serbian onslaught of Bosnia in 1992. See, Roger Cohen, 'Bosnian Serb Denies All at a War Crimes Tribunal', New York Times, April 27, 1995 at A3. The notion of an international criminal court has its origins in the International Convention for the Pacific Settlement of International Disputes, proposed at the Hague in 1899. 32 Stat. 1779, 26 Martens Nouveau Recueil (ser. 2d) 720. Subsequently, in 1919 the Treaty of Versailles made provision for prosecuting Kaiser Wilhelm II and members of the German military for offenses against the peace and for war crimes, respectively. In that same year a special commission was created by the Allies which formulated the international "crime against the laws of humanity." Treaty of Peace with Germany, June 28, 1919, 2 Bevans 43. The crime was articulated in the aftermath of the killing of approximately one million Armenians by Turkish civilians and governmental authorities. See, Vahakn Dadrian, Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications, 14 Yale J. Int'l Law 221 (1989). In 1937 a Convention of the Creation of an International Criminal Court was adopted by the League of Nations. The court was proposed for prosecuting crimes of terrorism committed in the Balkans. League of Nations Doc. C.547(I) M.384(I) 1937V reprinted in 7 International Legislation (1935-37), at 878 (M. Hudson (ed.), 1941). The International Military Tribunal at Nuremberg was established by the London Charter in 1945 for the prosecution of "Crimes Against Humanity" perpetrated in Europe during the Second World War. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, August 8, 1945, 59 Stat. 1544, 1547, 82 U.N.T.S. 279, 288. And the following year an international military tribunal was instituted in Tokyo for prosecuting principal war criminals in the Asian theater. International Military Tribunal for the Far East, January 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20. Over the last forty-five years, member states of the Council of Europe have initiated several conventions to foster intergovernmental cooperation in penal law. Ekkehart Muller-Rappard and M. Cherif Bassiouni (eds.), European Inter-State Co-operation in Criminal Matters (1987). In addition, the Organization of American States has taken similar steps to advance multilateral cooperative relations in criminal matters. Through the Security Council and other United Nations subentities, many nations have undertaken to usher in a new international legal order premised upon consensus and joint action. See, Thomas Franck and Fuiza Patel, 'United Nations Police Action in Lieu of War: The Old Order Changeth', 85 Am. J. Int'l Law 63 (1991). Finally, the UN. General Assembly has suggested the institution of an international criminal court with cognizance over the areas of global terrorism and the global drug trade. See, M. Cherif Bassiouni, 'The Time Has Come For an International Criminal Court', 1 Ind. Int'l & Comp. Law Rev. 1 (1991); John Anderson, 'An International Criminal Court: An Emerging Idea', 15 Nova Law Rev. 433 (1991).
3. 2 There have been numerous international tribunals with criminal jurisdiction instituted over the past 100 years. None, however, have exercised jurisdiction over corporate crimes. The most recent international criminal court to be created is the War Crimes Tribunal for the former Yugoslavia, established by the United Nations to prosecute individuals charged with war crimes committed during the Serbian onslaught of Bosnia in 1992. See, Roger Cohen, 'Bosnian Serb Denies All at a War Crimes Tribunal', New York Times, April 27, 1995 at A3. The notion of an international criminal court has its origins in the International Convention for the Pacific Settlement of International Disputes, proposed at the Hague in 1899. 32 Stat. 1779, 26 Martens Nouveau Recueil (ser. 2d) 720. Subsequently, in 1919 the Treaty of Versailles made provision for prosecuting Kaiser Wilhelm II and members of the German military for offenses against the peace and for war crimes, respectively. In that same year a special commission was created by the Allies which formulated the international "crime against the laws of humanity." Treaty of Peace with Germany, June 28, 1919, 2 Bevans 43. The crime was articulated in the aftermath of the killing of approximately one million Armenians by Turkish civilians and governmental authorities. See, Vahakn Dadrian, Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications, 14 Yale J. Int'l Law 221 (1989). In 1937 a Convention of the Creation of an International Criminal Court was adopted by the League of Nations. The court was proposed for prosecuting crimes of terrorism committed in the Balkans. League of Nations Doc. C.547(I) M.384(I) 1937V reprinted in 7 International Legislation (1935-37), at 878 (M. Hudson (ed.), 1941). The International Military Tribunal at Nuremberg was established by the London Charter in 1945 for the prosecution of "Crimes Against Humanity" perpetrated in Europe during the Second World War. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, August 8, 1945, 59 Stat. 1544, 1547, 82 U.N.T.S. 279, 288. And the following year an international military tribunal was instituted in Tokyo for prosecuting principal war criminals in the Asian theater. International Military Tribunal for the Far East, January 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20. Over the last forty-five years, member states of the Council of Europe have initiated several conventions to foster intergovernmental cooperation in penal law. Ekkehart Muller-Rappard and M. Cherif Bassiouni (eds.), European Inter-State Co-operation in Criminal Matters (1987). In addition, the Organization of American States has taken similar steps to advance multilateral cooperative relations in criminal matters. Through the Security Council and other United Nations subentities, many nations have undertaken to usher in a new international legal order premised upon consensus and joint action. See, Thomas Franck and Fuiza Patel, 'United Nations Police Action in Lieu of War: The Old Order Changeth', 85 Am. J. Int'l Law 63 (1991). Finally, the UN. General Assembly has suggested the institution of an international criminal court with cognizance over the areas of global terrorism and the global drug trade. See, M. Cherif Bassiouni, 'The Time Has Come For an International Criminal Court', 1 Ind. Int'l & Comp. Law Rev. 1 (1991); John Anderson, 'An International Criminal Court: An Emerging Idea', 15 Nova Law Rev. 433 (1991).
4. 2 There have been numerous international tribunals with criminal jurisdiction instituted over the past 100 years. None, however, have exercised jurisdiction over corporate crimes. The most recent international criminal court to be created is the War Crimes Tribunal for the former Yugoslavia, established by the United Nations to prosecute individuals charged with war crimes committed during the Serbian onslaught of Bosnia in 1992. See, Roger Cohen, 'Bosnian Serb Denies All at a War Crimes Tribunal', New York Times, April 27, 1995 at A3. The notion of an international criminal court has its origins in the International Convention for the Pacific Settlement of International Disputes, proposed at the Hague in 1899. 32 Stat. 1779, 26 Martens Nouveau Recueil (ser. 2d) 720. Subsequently, in 1919 the Treaty of Versailles made provision for prosecuting Kaiser Wilhelm II and members of the German military for offenses against the peace and for war crimes, respectively. In that same year a special commission was created by the Allies which formulated the international "crime against the laws of humanity." Treaty of Peace with Germany, June 28, 1919, 2 Bevans 43. The crime was articulated in the aftermath of the killing of approximately one million Armenians by Turkish civilians and governmental authorities. See, Vahakn Dadrian, Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications, 14 Yale J. Int'l Law 221 (1989). In 1937 a Convention of the Creation of an International Criminal Court was adopted by the League of Nations. The court was proposed for prosecuting crimes of terrorism committed in the Balkans. League of Nations Doc. C.547(I) M.384(I) 1937V reprinted in 7 International Legislation (1935-37), at 878 (M. Hudson (ed.), 1941). The International Military Tribunal at Nuremberg was established by the London Charter in 1945 for the prosecution of "Crimes Against Humanity" perpetrated in Europe during the Second World War. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, August 8, 1945, 59 Stat. 1544, 1547, 82 U.N.T.S. 279, 288. And the following year an international military tribunal was instituted in Tokyo for prosecuting principal war criminals in the Asian theater. International Military Tribunal for the Far East, January 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20. Over the last forty-five years, member states of the Council of Europe have initiated several conventions to foster intergovernmental cooperation in penal law. Ekkehart Muller-Rappard and M. Cherif Bassiouni (eds.), European Inter-State Co-operation in Criminal Matters (1987). In addition, the Organization of American States has taken similar steps to advance multilateral cooperative relations in criminal matters. Through the Security Council and other United Nations subentities, many nations have undertaken to usher in a new international legal order premised upon consensus and joint action. See, Thomas Franck and Fuiza Patel, 'United Nations Police Action in Lieu of War: The Old Order Changeth', 85 Am. J. Int'l Law 63 (1991). Finally, the UN. General Assembly has suggested the institution of an international criminal court with cognizance over the areas of global terrorism and the global drug trade. See, M. Cherif Bassiouni, 'The Time Has Come For an International Criminal Court', 1 Ind. Int'l & Comp. Law Rev. 1 (1991); John Anderson, 'An International Criminal Court: An Emerging Idea', 15 Nova Law Rev. 433 (1991).
5. 2 There have been numerous international tribunals with criminal jurisdiction instituted over the past 100 years. None, however, have exercised jurisdiction over corporate crimes. The most recent international criminal court to be created is the War Crimes Tribunal for the former Yugoslavia, established by the United Nations to prosecute individuals charged with war crimes committed during the Serbian onslaught of Bosnia in 1992. See, Roger Cohen, 'Bosnian Serb Denies All at a War Crimes Tribunal', New York Times, April 27, 1995 at A3. The notion of an international criminal court has its origins in the International Convention for the Pacific Settlement of International Disputes, proposed at the Hague in 1899. 32 Stat. 1779, 26 Martens Nouveau Recueil (ser. 2d) 720. Subsequently, in 1919 the Treaty of Versailles made provision for prosecuting Kaiser Wilhelm II and members of the German military for offenses against the peace and for war crimes, respectively. In that same year a special commission was created by the Allies which formulated the international "crime against the laws of humanity." Treaty of Peace with Germany, June 28, 1919, 2 Bevans 43. The crime was articulated in the aftermath of the killing of approximately one million Armenians by Turkish civilians and governmental authorities. See, Vahakn Dadrian, Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications, 14 Yale J. Int'l Law 221 (1989). In 1937 a Convention of the Creation of an International Criminal Court was adopted by the League of Nations. The court was proposed for prosecuting crimes of terrorism committed in the Balkans. League of Nations Doc. C.547(I) M.384(I) 1937V reprinted in 7 International Legislation (1935-37), at 878 (M. Hudson (ed.), 1941). The International Military Tribunal at Nuremberg was established by the London Charter in 1945 for the prosecution of "Crimes Against Humanity" perpetrated in Europe during the Second World War. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, August 8, 1945, 59 Stat. 1544, 1547, 82 U.N.T.S. 279, 288. And the following year an international military tribunal was instituted in Tokyo for prosecuting principal war criminals in the Asian theater. International Military Tribunal for the Far East, January 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20. Over the last forty-five years, member states of the Council of Europe have initiated several conventions to foster intergovernmental cooperation in penal law. Ekkehart Muller-Rappard and M. Cherif Bassiouni (eds.), European Inter-State Co-operation in Criminal Matters (1987). In addition, the Organization of American States has taken similar steps to advance multilateral cooperative relations in criminal matters. Through the Security Council and other United Nations subentities, many nations have undertaken to usher in a new international legal order premised upon consensus and joint action. See, Thomas Franck and Fuiza Patel, 'United Nations Police Action in Lieu of War: The Old Order Changeth', 85 Am. J. Int'l Law 63 (1991). Finally, the UN. General Assembly has suggested the institution of an international criminal court with cognizance over the areas of global terrorism and the global drug trade. See, M. Cherif Bassiouni, 'The Time Has Come For an International Criminal Court', 1 Ind. Int'l & Comp. Law Rev. 1 (1991); John Anderson, 'An International Criminal Court: An Emerging Idea', 15 Nova Law Rev. 433 (1991).
6. 2 There have been numerous international tribunals with criminal jurisdiction instituted over the past 100 years. None, however, have exercised jurisdiction over corporate crimes. The most recent international criminal court to be created is the War Crimes Tribunal for the former Yugoslavia, established by the United Nations to prosecute individuals charged with war crimes committed during the Serbian onslaught of Bosnia in 1992. See, Roger Cohen, 'Bosnian Serb Denies All at a War Crimes Tribunal', New York Times, April 27, 1995 at A3. The notion of an international criminal court has its origins in the International Convention for the Pacific Settlement of International Disputes, proposed at the Hague in 1899. 32 Stat. 1779, 26 Martens Nouveau Recueil (ser. 2d) 720. Subsequently, in 1919 the Treaty of Versailles made provision for prosecuting Kaiser Wilhelm II and members of the German military for offenses against the peace and for war crimes, respectively. In that same year a special commission was created by the Allies which formulated the international "crime against the laws of humanity." Treaty of Peace with Germany, June 28, 1919, 2 Bevans 43. The crime was articulated in the aftermath of the killing of approximately one million Armenians by Turkish civilians and governmental authorities. See, Vahakn Dadrian, Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications, 14 Yale J. Int'l Law 221 (1989). In 1937 a Convention of the Creation of an International Criminal Court was adopted by the League of Nations. The court was proposed for prosecuting crimes of terrorism committed in the Balkans. League of Nations Doc. C.547(I) M.384(I) 1937V reprinted in 7 International Legislation (1935-37), at 878 (M. Hudson (ed.), 1941). The International Military Tribunal at Nuremberg was established by the London Charter in 1945 for the prosecution of "Crimes Against Humanity" perpetrated in Europe during the Second World War. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, August 8, 1945, 59 Stat. 1544, 1547, 82 U.N.T.S. 279, 288. And the following year an international military tribunal was instituted in Tokyo for prosecuting principal war criminals in the Asian theater. International Military Tribunal for the Far East, January 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20. Over the last forty-five years, member states of the Council of Europe have initiated several conventions to foster intergovernmental cooperation in penal law. Ekkehart Muller-Rappard and M. Cherif Bassiouni (eds.), European Inter-State Co-operation in Criminal Matters (1987). In addition, the Organization of American States has taken similar steps to advance multilateral cooperative relations in criminal matters. Through the Security Council and other United Nations subentities, many nations have undertaken to usher in a new international legal order premised upon consensus and joint action. See, Thomas Franck and Fuiza Patel, 'United Nations Police Action in Lieu of War: The Old Order Changeth', 85 Am. J. Int'l Law 63 (1991). Finally, the UN. General Assembly has suggested the institution of an international criminal court with cognizance over the areas of global terrorism and the global drug trade. See, M. Cherif Bassiouni, 'The Time Has Come For an International Criminal Court', 1 Ind. Int'l & Comp. Law Rev. 1 (1991); John Anderson, 'An International Criminal Court: An Emerging Idea', 15 Nova Law Rev. 433 (1991).
7. 3 As one writer observes: Global interdependence is best illustrated by the emergence of truly global capital and commodity markets (as dramatically illustrated by the stock market crash of October, 1987): a change in Japanese interest rates, or a speculative frenzy of short-selling on the Chicago Futures Exchange, can literally make the difference between life and death for large numbers of people half a world away - in Africa, for example, where many countries depend upon foreign borrowing and cash crop exports. Such interdependence is not bad as such (it can hardly be scaled back in any case), but it does require democratic centralization of decision making: as more and more persons are significantly affected by certain institutions, more and more persons have a right to a political role in shaping them. Thomas Pogge: 1992, 'Cosmopolitanism and Sovereignty', Ethics 103, 66.
8. 4 See, J. Braithwaite: 1984, Corporate Crime in the Pharmaceutical Industry (Routledge, Kegal Paul, London); Andy Chetley: 1979, The Baby Killer Scandal (War-on-Want, London).
9. 4 See, J. Braithwaite: 1984, Corporate Crime in the Pharmaceutical Industry (Routledge, Kegal Paul, London); Andy Chetley: 1979, The Baby Killer Scandal (War-on-Want, London).
10. 5 See, William Shaw: 1991, Business Ethics, 33-34.
11. 6 See, Barbara Crossette, 'Bhopal's Tragedy Revisited: Ten Years After the Gas, No End to Tears', New York Times, December 11, 1994 at Section 4, p. 5; Sanjoy Hazarika, 'In India's City of Death, Time Has Healed Little', New York Times, December 2 1994 at A4.
12. 6 See, Barbara Crossette, 'Bhopal's Tragedy Revisited: Ten Years After the Gas, No End to Tears', New York Times, December 11, 1994 at Section 4, p. 5; Sanjoy Hazarika, 'In India's City of Death, Time Has Healed Little', New York Times, December 2 1994 at A4.
13. 7 See, Thomas Donaldson: 1989, The Ethics of International Business (Oxford University Press, New York), pp. 109-128.
14. 8 See, James Russell: 1987, 'U.S. Sweatshops Across the Rio Grande', Business and Society Review 50, 17; La Rue Tone Hosmer: 1994, Moral Leadership in Business (Irwin, Boston), pp. 61-66.
15. 8 See, James Russell: 1987, 'U.S. Sweatshops Across the Rio Grande', Business and Society Review 50, 17; La Rue Tone Hosmer: 1994, Moral Leadership in Business (Irwin, Boston), pp. 61-66.
16. 9 Ronald Dworkin expresses such a sentiment eloquently in the following passage: Law's empire is defined by attitude, not territory or power or process . . . It is an interpretive, self-reflective attitude addressed to politics in the broadest sense. It is a protestant attitude that makes each citizen responsible for imagining what his society's public commitments to principle are and what these commitments require in new circumstances . . . Law's attitude is constructive: it aims in the interpretive spirit, to lay principle over practice to show the best route to a better future, keeping the right faith with the past. It is, finally a fraternal attitude, and expression of how we are united in community though divided in project, interest, and conviction. That is, anyway, what law is for us: for the people we want to be and the community we aim to have. Law's Empire (1986) at 413.
17. 10 See, Richard De George: 1993, Competing With Integrity in International Business (Oxford University Press, New York).
18. 11 See, Thomas Donaldson: 1989, The Ethics of International Business (Oxford University Press, New York).
19. 12 In a recent article, it has been argued that corporate ethics can be based upon standards derived from a hypothetical integrative social contract theory in which "hypernorms" functions to establish minimum standards "by which all other norms are to be judged." Such hypernorms are "sufficiently fundamental that they serve as a source of evaluation and criticism of community-generated norms, and may include not only rules specifying minimum behavior, such as the rule against the killing of innocents, but imperfect duties such as virtue, beneficence and decency." See, Thomas Donaldson and Thomas Dunfee: 1995, 'Integrative Social Contracts Theory', Economics and Philosophy 11, 96. The authors indicate that human rights principles as promulgated in the United Nations Universal Declaration of Human Rights represent examples of such hypernorms. Id. p. 104. See also, Donaldson and Dunfee: 'Toward a Unified Conception of Business Ethics: Integrative Social Contracts theory', Academy of Management Review 19(2). According to the authors: [W]e assume . . . that some hypernorms exist and that an initial list of hypernorms should include, at a minimum, the following two concepts: [1] Core human rights, including those to personal freedom, physical security and well-being, political participation, informed consent, the ownership of property, the right to subsistence; and [2] The obligation to respect the dignity of each human person. Id. p. 267.
20. 12 In a recent article, it has been argued that corporate ethics can be based upon standards derived from a hypothetical integrative social contract theory in which "hypernorms" functions to establish minimum standards "by which all other norms are to be judged." Such hypernorms are "sufficiently fundamental that they serve as a source of evaluation and criticism of community-generated norms, and may include not only rules specifying minimum behavior, such as the rule against the killing of innocents, but imperfect duties such as virtue, beneficence and decency." See, Thomas Donaldson and Thomas Dunfee: 1995, 'Integrative Social Contracts Theory', Economics and Philosophy 11, 96. The authors indicate that human rights principles as promulgated in the United Nations Universal Declaration of Human Rights represent examples of such hypernorms. Id. p. 104. See also, Donaldson and Dunfee: 'Toward a Unified Conception of Business Ethics: Integrative Social Contracts theory', Academy of Management Review 19(2). According to the authors: [W]e assume . . . that some hypernorms exist and that an initial list of hypernorms should include, at a minimum, the following two concepts: [1] Core human rights, including those to personal freedom, physical security and well-being, political participation, informed consent, the ownership of property, the right to subsistence; and [2] The obligation to respect the dignity of each human person. Id. p. 267.
21. 13 See, William Frederick: 1991, The Moral Authority of Transnational Corporate Codes', Journal of Business Ethics 10, 165.
22. 14 See, Henry Shue: 1980, Basic Rights (Princeton University Press, Princeton, NJ).
23. 15 See, David E. Sanger: 'Clinton to Urge a Rights Code for Business Dealing Abroad', New York Times (March 27, 1995), at D1, D4.
24. 16 See, Ian Brownlie: 1990, Principles of Public International Law (Oxford University Press, New York), pp. 512-515.
25. 17 Thus, in the case of Filartiga v. Pena-Irala, the United States Court of Appeals for the Second Circuit applied the Alien Tort Claims Act in a wrongful death action based on acts of torture committed by the Inspector General of Police in Paraguay against a citizen of Paraguay. The court construed the apposite tort as a violation of international human rights law rather than only the law of Paraguay. The court interpreted international law as establishing a right not to be tortured by officials of one's own government. Because the plaintiffs did not allege that their claim arose out of a treaty to which the U.S. was a party, the jurisdictional issue under the Alien Tort Claims Act involved whether torture is violative of the "law of nations," that is, customary international law. The court stated that "[t]orture is viewed with universal abhorrence; the prohibition of torture by international consensus and express international accords is clear and unambiguous; and 'for purposes of civil liability the torturer has become - like the pirate and the slave trader before him - hostis humani generis - an enemy of all mankind.'" . . . "[I]f the courts . . . are to adhere to the consensus of the community of humankind, any remedy they fashion must recognize that this case concerns an act so monstrous as to make its perpetrator an outlaw around the globe." 577 F.Supp. 860 at 863 (1984). Included in the sources of international law upon which the court based its decision was Article 5 of the Universal Declaration of Human Rights. The Chief Judge indicated that the right to freedom from torture "has become part of customary international law, as evidenced and defined by the Universal Declaration . . . which states, in the plainest of terms, 'no one shall be subjected to torture.'" Id. at 882. See also, Trajano v. Marcos, 878 F.2d 1439 (9th Cir. 1989; unpublished disposition, Text in Westlaw, No. 86-2448, 86-15039). Recently, a Federal court in Boston ordered a former general from Guatemala to pay $47.5 million in damages to eight Guatemalans and an American nun who were kidnapped, tortured, raped, beaten, burned, and terrorized by the Guatemalan military in 1989. See, Tim Weiner, 'U.S. Judge Orders Ex-Guatemala General to Pay $47.5 Million', New York Times, April 13, 1995 at A13.
26. 18 In general, compensatory justice involves compensating those harmed by the wrongful actions of others in the past. See, R. DeGeorge: 1990, Business Ethics (3d ed.), p. 79.
27. 19 Procedural justice deals with maintaining fairness in authoritative decisionmaking. Id. As such it is closely connected to the legal concept of due process.
28. 20 The notion of distributive justice covers fairness in the allocation of benefits and burdens. Id. A liberal concept of distributive justice is provided by John Rawls. He expounds two principles of justice that people would rationally choose in an imaginary "original position" where they are temporarily unaware of their own status in society. One of these principles - dubbed the "difference principle" - gives criteria for distributive justice. It states that social and economic inequalities should be allowed only insofar as such differences will lead to the greatest advantage of all (including the least advantaged), and attach to opportunities open to everyone. See, John Rawls: 1971, A Theory of Justice (Harvard University Press, Cambridge, MA). In contrast, a libertarian conception of distributive justice stresses the individual's liberty to acquire, own, and transfer holdings without the state intervention that a liberal understanding of distributive justice contemplates. See, Robert Nozick: 1974, Anarchy, State and Utopia (Basic Books, New York).
29. 20 The notion of distributive justice covers fairness in the allocation of benefits and burdens. Id. A liberal concept of distributive justice is provided by John Rawls. He expounds two principles of justice that people would rationally choose in an imaginary "original position" where they are temporarily unaware of their own status in society. One of these principles - dubbed the "difference principle" - gives criteria for distributive justice. It states that social and economic inequalities should be allowed only insofar as such differences will lead to the greatest advantage of all (including the least advantaged), and attach to opportunities open to everyone. See, John Rawls: 1971, A Theory of Justice (Harvard University Press, Cambridge, MA). In contrast, a libertarian conception of distributive justice stresses the individual's liberty to acquire, own, and transfer holdings without the state intervention that a liberal understanding of distributive justice contemplates. See, Robert Nozick: 1974, Anarchy, State and Utopia (Basic Books, New York).
30. 21 Retributive justice relates to the requirement that wrongdoing and lawlessness be punished. See, De George, Note 18, supra.
31. 22 It is intriguing to contemplate the court fashioning, for appropriate corporate offenses, "Hester Prynne" sanctions aimed to tarnish the reputation of a multinational corporation qua a global moral agent. Peter French advanced the idea of a court ordering corporations convicted of wrongdoing to devote a portion of their advertising budget to fund a negative publicity campaign run by an independent advertising agency as a means of informing the public about the misconduct, providing a more effective means of punishment than fines which, he argued, are too often passed on to innocent parties (such as customers and non-offending lower level employees) by, for instance, raising prices or cutting jobs. See, Peter French: 1993, 'The Hester Prynne Sanction', in Thomas White, Business Ethics: A Philosophical Reader (MacMillan, New York). There are two special advantages this type of sanction would afford in the context of international corporate offenses. The first advantage is that of informing the public about business misconduct that may be largely unknown to them due to its occurrence in far away places around the world. The second advantage is that those living in less developed countries are not likely to be as adequately informed about corporate offenses occurring on their own soil since the news media are not present with the same magnitude as in developed countries. So would-be consumers and workers in host LDCs would benefit from knowing about lawbreaking corporations from the court-ordered negative advertisements.
32. 23 Substantial philosophical disagreement exists as to whether, and to what extent, principles of distributive justice apply internationally. One view contends that the international arena lacks the requisite background institutions and cooperative arrangements to permit redistribution of primary goods from developed countries to lesser developed countries. On the other hand, opponents contend that respect for distributive justice dictates that efforts be made to further develop institutional mechanisms such as the international court being proposed herein. For an argument that global distributive justice properly applies to the activities of multinational corporations, see, Kevin Jackson: 1993, 'Global Distributive Justice and the Corporate Duty to Aid', Journal of Business Ethics 12, 547.
33. 24 See, R. De George: 1993, Competing With Integrity in International Business (Oxford University Press, New York), pp. 97-102.
34. 25 See, the discussion of the Dresser Industries case, Note 39, infra.
35. 26 See, 'Extradition Fought by Barings Trader', New York Times, April 13, 1995 at D7.
36. 27 Richard De George: 1993, Competing With Integrity in International Business (Oxford University Press, New York), pp. 45-56.
37. 28 Duane Windsor: 1986, 'Defining the Ethical Obligations of the Multinational Enterprise', in W. M. Hoffman et al. (eds.), Ethics and the Multinational Enterprise (University Press of America, Lanham MD), pp. 71; 73-74.
38. 29 See, Lynn Sharp Paine: 1994, 'Managing for Organizational Integrity', Harvard Business Review 106.
39. 30 The Sentencing Guidelines specify the following requirements for an effective corporate compliance program: (1) Establishing compliance standards and procedures for employees that are reasonably capable of reducing the prospect of criminal conduct. (2) Designating a high level individual in the company to oversee compliance with these standard procedures. (3) Using due care not to delegate substantial discretionary authority to persons who may have a propensity to engage in illegal activity. (4) Effectively communicating the company's standards and procedures concerning compliance with the law by requiring participation in training programs or disseminating publications that explain them. (5) Taking reasonable steps to achieve compliance with standards, such as by monitoring and auditing systems designed to detect criminal conduct and by having a reporting system whereby criminal conduct can be reported. (6) Having an appropriate disciplinary mechanism for people who violate standards or fail to detect an offense. (7) After an offense has been detected, taking all reasonable steps to respond appropriately and to prevent similar offense from occurring in the future, including modifying the program if necessary. Further, in order to receive credit for having an effective compliance program, the company must consider its unique characteristics when implementing the above steps. That is, compliance programs will vary from one company to another. Under the guidelines the company must, at a minimum, take into account these factors: (i) the size of the company (the larger the company, the more formal and elaborate the company policies and procedures should be); (ii) the nature of the industry (areas where a company might be vulnerable based on the nature of the industry - where employees might be tempted to commit crime); and (iii) previous crimes (actual crimes committed previously by the company). See, Best, Cole and Darland: 1992, 'Complying with Sentencing Guidelines', National Law Journal, 19; Slater: 1992, 'Sentence Yourself: Corporate Defendants Can Affect Their Own Fines, Under New Guidelines', ABA Journal, 83;
40. 30 The Sentencing Guidelines specify the following requirements for an effective corporate compliance program: (1) Establishing compliance standards and procedures for employees that are reasonably capable of reducing the prospect of criminal conduct. (2) Designating a high level individual in the company to oversee compliance with these standard procedures. (3) Using due care not to delegate substantial discretionary authority to persons who may have a propensity to engage in illegal activity. (4) Effectively communicating the company's standards and procedures concerning compliance with the law by requiring participation in training programs or disseminating publications that explain them. (5) Taking reasonable steps to achieve compliance with standards, such as by monitoring and auditing systems designed to detect criminal conduct and by having a reporting system whereby criminal conduct can be reported. (6) Having an appropriate disciplinary mechanism for people who violate standards or fail to detect an offense. (7) After an offense has been detected, taking all reasonable steps to respond appropriately and to prevent similar offense from occurring in the future, including modifying the program if necessary. Further, in order to receive credit for having an effective compliance program, the company must consider its unique characteristics when implementing the above steps. That is, compliance programs will vary from one company to another. Under the guidelines the company must, at a minimum, take into account these factors: (i) the size of the company (the larger the company, the more formal and elaborate the company policies and procedures should be); (ii) the nature of the industry (areas where a company might be vulnerable based on the nature of the industry - where employees might be tempted to commit crime); and (iii) previous crimes (actual crimes committed previously by the company). See, Best, Cole and Darland: 1992, 'Complying with Sentencing Guidelines', National Law Journal, 19; Slater: 1992, 'Sentence Yourself: Corporate Defendants Can Affect Their Own Fines, Under New Guidelines', ABA Journal, 83;
41. Strauss and Sackmann: 1992, 'Corporate Compliance Programs: An Ounce of Prevention', How To Handle Internal Investigations and Establish Successful Compliance Programs (Practicing Law Institute).
42. 31 See, Paine, Note 29 supra.
43. 32 See, Ronald Dworkin: 1986, Law's Empire (Harvard University Press, Cambridge, MA), pp. 45-86.
44. 33 In proposing "A common standard of achievement for all peoples and all nations," the Universal Declaration of Human Rights states that "all human beings are born free and equal in dignity and rights." U.N.G.A. Res. 217 A (III), UN. Doc. A/810, at 71 (1948).
45. 34 The International Court of Justice is only given compulsory jurisdiction by treaties that so provide. The Vienna Convention on the Protection of Diplomats grants compulsory jurisdiction to the ICJ in disputes concerning the immunity and treatment of diplomats. Article I of the Optional Protocol to the Convention states that "[d]isputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the [International Court of Justice] and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol." 23 U.S.T. 3374; 500 U.N.T.S. 241.
46. 35 See, Princz v. Federal Republic of Germany. In addition to his action against the Federal Republic of Germany to recover damages for injuries suffered while a prisoner in Nazi concentration camps, the plaintiff sued, in an action for quantum meruit, several corporations, including Bayer, BASF, I.G. Farben, and Messerschmidt, alleging that they used his slave labor by "leasing" him from concentration camps in which he was detained during the Holocaust. 26 F.3d 1166 (D.C. Cir. 1994).
47. 36 See, Comment, 'The Trial of Nick Leeson', The Independent, July 14, 1995 at p. 16.
48. 37 See, Geoff Gilbert, 'The Ball in Whose Court?', The Guardian, March 10, 1995 at p. 24.
49. 38 See, Alex Brummer, 'The Legal Obstacles Stacked against BCCI's Depositors', The Guardian, October 26, 1993 at p. 12.
50. 39 Other U.S. companies were adversely affected by the embargo. Caterpiller lost a billion dollar agreement that was awarded to Komatsu of Japan instead. See, Rogene Buchholz, William Evans and Robert Wagley: 1989, Management Response to Public Issues, 2nd Ed. (Prentice Hall, Englewood Cliffs), pp. 179-192.
51. 40 Similarly, Conoco, a subsidiary of DuPont, recently lost out on a billion dollar contract with the Iranian Oil Ministry after the Clinton Administration blocked it on the grounds that it presented a "national security" threat. The contract, which was for the development of the sirri oilfield, was awarded to the French company, Total. Officials from Iran condemned the U.S. for violating free-trade policy by canceling the contract. See New York Times, March 20, 1995, at D2.
52. 41 The stated purpose of the Act was "to set forth a comprehensive and complete framework to guide the efforts of the United States in helping to bring an end to apartheid in South Africa and to lead to the establishment of a nonracial, democratic form of government." 22 U.S.C. s 5002 (Supp. IV 1986).
53. 42 Section 110(b) states that "it is the sense of Congress that United States employers operating in South Africa are obliged both generally to actively oppose the policy and practices of apartheid and specifically to engage in recruitment and training of Black and colored South Africans for management responsibilities." 22 U.S.C. s 5020(a)(1) (Supp. IV 1986).
54. 43 According to Section 5032(b): The Secretary of State and any other head of a department or agency of the United States carrying out activities in South Africa shall promptly take, without regard to any provision of law, the necessary steps to ensure that the labor practices applied to the employment of services described in paragraphs (1) through (3) of subsection (a) of this section are governed by the Code of Conduct. 22 U.S.C. s 5032(b) (Supp. IV 1986).
55. 44 The Code of Conduct reads, in pertinent part, as follows: (a) Principles; enumeration. (1) Desegregating the races in each employment facility; (2) providing equal employment opportunity for all employees without regard to race or ethnic origin; (3) assuring that the pay system is applied to all employees without regard to race or ethnic origin; (4) establishing a minimum wage and salary level which takes into account the needs of employees and their families; (5) increasing by appropriate means the number of persons in managerial, supervisory, administrative, clerical, and technical jobs who are disadvantaged by the apartheid system for the purpose of significantly increasing their representation in such jobs, (6) taking reasonable steps to improve the quality of employee's lives outside the work environment with respect to housing, transportation, school, recreation, and health; and (7) implementing fair labor practices by recognizing the right of all employees, regardless of racial or other distinctions, to self-organization and to form, join, or assist labor organizations freely and without penalty or reprisal, and recognizing the right to refrain from any such activity. It is the sense of the Congress that in addition to the principles enumerated in subsection (a), nationals of the United States subject to this section should seek to comply with the following principle: taking reasonable measures to extend the scope of influence on activities outside the workplace, including - (b) Principles for employer nationals of United States: (1) Supporting the unrestricted rights of black businesses to locate in urban areas; (2) influencing other companies in South Africa to follow the standards of equal rights principles; (3) supporting the freedom of mobility of black workers to seek employment opportunities wherever they exist, and making provision for adequate housing for families of employees within the proximity of workers' employment; and (4) supporting the recission of all apartheid laws. 22 U.S.C. s 5035 (Supp. IV 1986).
56. 45 The Sullivan Principles, which were initially formulated, yet subsequently abandoned, by Reverend Leon Sullivan with the objective of promoting non-racist practices by U.S.-based multinational corporations in South Africa, included provisions requiring desegregation of employment facilities and elimination of discrimination against the rights of Blacks to form or belong to government-registered unions.
57. 46 22 U.S.C. 5113(d) (Supp. IV 1986).
58. 47 Some examples of prohibited exports included computers, software, technology for the government's military, police, apartheid-enforcing agencies, and penal institutions. 22 U.S.C. 5054 (Supp. IV 1986). Other prohibited exports included items on the United States munitions list, 22 U.S.C. 5007; crude oil and petroleum products, 22 U.S.C. 5071; and nuclear materials and technology, 22 U.S.C. 507.
59. 48 Examples of prohibited imports included: Krugarrands and other gold coins minted or offered for sale by the government of South Africa, 22 U.S.C. 5051; arms, ammunition and military vehicles, 22 U.S.C. 5052; articles grown, produced, manufactured by, marketed or otherwise exported by parastatal organizations (e.g., corporations, partnerships, or other entities owned, controlled, or subsidized by the government) of the South African Government, 22 U.S.C. 5053; uranium ore, uranium oxide, coal and textiles, 22 U.S.C. 5059; agricultural commodities, products, byproducts, or derivatives, or articles suitable for human consumption that is a product of South Africa, 22 U.S.C. 5069; iron or steel, 22 U.S.C. 5070; and sugar and sugar products of South Africa 22 U.S.C. 5073.
60. 49 22 U.S.C. 5002.
61. 50 Section 403(a) stated that: Any national of the United States who is required by this chapter to terminate or curtail business activities in South Africa may bring a civil action for damages against any person, partnership, or corporation that takes commercial advantage or otherwise benefits form such termination or curtailment. 22 U.S.C. 5003(a) (Supp. IV 1986). The cause of action was to be maintained either in the United States District Court of the District of Columbia or in the Court of International Trade. Successful plaintiffs were to be awarded lost profits, costs of bringing the action, and attorneys fees. 22 U.S.C. 5003(b) (Sup. IV 1986).
62. 51 The legislative history of Section 403 is expressed in the following passage: U.S. firms may bring a private action for damages against any firm that takes commercial advantage of any sanction imposed by this Act. For example, if a U.S. company had been selling computers to an agency of the South African Government and was prohibited by this Act from continuing to sell computers, it could bring an action for lost profits against any foreign firm which deliberately intended to injure the U.S. company by replacing it. The U.S. company is entitled to costs and attorney's fees if it prevails. S. Rep. No. 370, 99th Cong., 2d Sess., 132 Cong. Rec. S9890 (daily ed. July 30, 1986), reprinted in 1986 U.S. Code Cong. & Admin. News at 2350.
63. 52 See, Draft Statute Internanal criminal Tribunal, U.N. Doc. A/CONF. 144/NG07/ISISC (1990).
64. 53 In that case victims and their families initiated civil legal action against Union Carbide in New York, NY. However, the case was dismissed by the United States Court of Appeals and sent back to India on the basis of the forum non conveniens doctrine. See, In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195 (2d Cir. 1987).
65. 54 Indeed, even within the U.S., standards of negligence differ significantly from state to state. A recent case involving multistate plaintiffs in a class action seeking certification to sue for negligence in connection with HIV-infected blood-clotting substances illustrates the problem of a single court adjudicating differing legal standards. In that case, the Seventh Circuit refused to certify the class on the grounds that it would be impossible for a court to apply a standard of negligence that would be consistent with each of the fifty states' own negligence standards. Arguably, however, in that case the key difficulty is that the legal standard would have to be applied to the proposed class as a whole, which would make variations in the standards of negligence applied to that class unfair. But there would seem to be nothing objectionable about a court applying the respective negligence standards of each individual state to each individual defendant. At any rate, the fact that there exist differing standards of negligence amongst the fifty states does not count as a valid objection to the existence of the federal judiciary. Rather, the federal judicial system complements the state judicial systems and assists in revolving conflicts amongst state courts, and the U.S. Supreme Court assists in resolving conflicts amongst the federal circuit courts.
66. 55 Among the many standards the Code of Conduct on Transnational Corporations imposes on firms are that they: Respect the national sovereignty of countries in which they operate, and obey the laws, regulations and administrative practices of those countries. Fulfill obligations under international law in good faith. Respect the right of States to regulate and monitor their activities. Carry out activities in conformity with the developmental policies and priorities set by the governments of countries in which they operate. Negotiate and implement contracts or agreements with governments in good faith. Respect the social and cultural objectives, values, and traditions of countries in which they operate, avoiding practices, products, or services which cause detrimental effects on cultural patterns and socio-cultural objectives. Contribute to the economic and social development of countries in which they operate. Disclose information on possible hazards to the public. Refrain, in their transactions, from the offering, promising or giving of any payment, gift or other advantage to or for the benefit of a public official as consideration for performing or refraining from the performance of his duties in connection with those transactions. Maintain accurate records of any payments made by them to any public official or intermediary. They shall make available these records to the competent authorities of the countries in which they operate, upon request, for investigations and proceedings concerning those payments. Supply on request all relevant information regarding injurious characteristics affecting health or safety prohibitions, warnings, and regulations which have been applied in other countries. Respect human rights and fundamental freedoms, and not discriminate on the basis of race, colour, sex, religion, language, social, national and ethnic origin or political or other opinion.
67. 56 The Guidelines state that multinational enterprises are obligated to pay their fair share of taxes in host countries in light of the following provisions: (1) Upon request of the taxation authorities of the countries in which they operate, provide, in accordance with the safeguards and relevant procedures of the national laws of these countries, the information necessary to determine correctly the taxes to be assessed in connection with their operation, including relevant information concerning their operations in other countries. (2) Refrain from making use of the particular facilities available to them, such as transfer pricing which does not conform to an arm's length standard, for modifying in ways contrary to national laws the tax base which members of the group are assessed.
68. 57 The OECD Guidelines are reprinted in 15 I.L.M. 967 (1976).
69. 58 The World Health Organization has adopted a resolution requesting that member countries put smoking control strategies in place, and that they establish a national "focal point" to support, stimulate, and coordinate smoking control measures. See, Tobacco or Health?, United Nations World Health Assembly (World Health Organization, New York, 1986).
70. 59 The World Health Organization's Infant Formula Code imposes various restrictions on the distribution and marketing of breast-milk substitutes. The Code covers such practices as advertising, labeling, distributing samples, and the conduct and compensation of personnel involved in selling and marketing infant formula.
71. 60 The International Code of Conduct for the Transfer of Technology, a product of the United Nations Conference on Trade and Development (UNCTAD), defines the contractual obligations of parties engaged in transferring technology. It contains rules governing negotiating, contracting, as well as post-contract activities. Upon request by a receiving country, the country furnishing technology must provide specific data on various elements of the technology as needed for technical and financial evaluation of the technology.
72. 61 The Food and Agricultural Organization promulgated the International Code of Conduct in the Distribution and Use of Pesticides. The code establishes standards for the marketing and use of pesticides, particularly in less developed countries.
73. 62 The Committee on Shipping, under the aegis of the United Nations Conference on Trade and Development (UNCTAD) is attempting to reconcile the policies of various governments with respect to international shipping. UNCTAD has formulated the Code of Conduct for Liner Conferences (1974). The Code restricts international competition as between two nations with a provision that shipping lines in each one will receive forty percent of the traffic, whereas twenty percent will be open to international competition. In addition, UNCTAD has produced the Convention on International Multimodal Transport of Goods (1980). See, Everyone's United Nations (United Nations, New York, 1986), p. 246.
74. 63 The International Labor Organization (ILO) develops standards that are applicable only to governments. It has issued statements regarding equality of opportunity in employment in its "Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy." 15 BN 92-2-101896-2 (1978). In its World Labor Report, the ILO provided the following recommendation: There are three major priority areas for action in the future: (1) women's work should be perceived in even more countries as an essential component of the development process; (2) special measures should be taken to ratify and implement under national legislation ILO and United Nations standards, especially on equal employment opportunities, equal pay for equal work, working conditions, job security, and maternity protection; and (3) there is a need to formulate national policies to accelerate the creation of productive and equal employment opportunities for women so as to enable them to participate more fully in economic growth and social progress. United Nations International Labor Organization, World Labor Report, Vol. 2 at 232 (1985).
75. 64 The Law of the Sea Treaty, adopted in 1982, provides that private firms must agree to transter any technology they utilize to the Enterpriser or to developing countries for "fair and reasonable commercial terms." In addition, the firm must provide information on a second seabed site for each site it mines to be reserved for the Enterprise or for developing countries. U.N. Doc. A/CONE 62/WP.10/Rev. 1 (1979), reprinted in 18 I.L.M. 686 (1979).
76. 63 The United Nation's Moon Treaty states that "the moon and its natural resources are the common heritage of mankind," and provides that any benefits accruing from removal of its resources must be distributed. It also provides that an international regime be set up to oversee the extraction of lunar resources. 34 U.N. GAOR, Supp. (No. 20) 33, U.N. Doc. A/34/20 Annex II (1979).
77. 66 The European Union has standards on preparation of annual financial reports. There are Directives that cover accounting categories, asset valuation rules, auditing procedures, capitalization ot companies, and inflation accounting. Another Directive requires corporations to make public financial reports on their subsidiary operations. The reporting requirements depend on the level of parent company ownership, and are applicable regardless of whether the controlling company is headquartered within the EU.
78. 67 Protection for international trademark and trade name originated with the adoption of the Madrid Agreement in 1891, which was intended to facilitate international cooperation in trademark and trade name registration. Twenty-nine countries have subscribed to the Madrid Agreement. These members are working with the World Intellectual Property Organization (WIPO), the United Nations agency in Geneva that administers trademarks and trade names, to create a centralized operation for all registrations. The Pan American Convention of 1929 (of which the U.S. is a member) contains provisions affording trademark protection in all member countries. Protection for international copyrights is provided by the Berne Convention for the Protection of Literary and Artistic Works. Eighty-four countries have ratified the Berne Convention, which is also administered through WIPO. The Convention affords copyright protection in all member countries. It also provides protection in non-Berne countries provided that the work is published simultaneously in its non-member country of origin and in another member country. As for patents, the U.S., together with twelve Latin American countries are signatories to the Convention for the Protection of Inventions, Patents, Designs, and Industrial Models. The International Patent Cooperation Union, established by the Patent Cooperation Treaty, affords patent protection through the filing of one application. It also is administered by the International Bureau of WIPO.
79. 68 Global antitrust regulations have been established by the Rules for Control of Restrictive Business Practices. The Rules were adopted by the United Nations General Assembly in 1980. United States firms are subject to U.S. antitrust laws irrespective of where their activities and anticompetitive operations take place. Foreign firms that operate in the U.S. or that engage in trade that has a "substantial impact" in the U.S. are also subject to the U.S. antitrust laws.
80. 69 The General Agreement on Tariffs and Trade (GATT) is the most ambitious effort to negotiate free international trade. The GATT provides for an international legal system with legal norms, a mechanism for interpreting the norms, as well as a procedure for resolving disputes arising under them.
81. 70 The OECD has formulated guidelines for data transmissions across borders. The European Unions Council of Europe has instituted a legally binding treaty covering corporate transmissions of personnel records, results of direct marketing surveys, and supplier data. In addition, the treaty encompasses the activities of companies involved in routine processing of such data, including: banking, communications, credit, employment services, entertainment, insurance, and tourism.
82. 71 The United Nations Commission on International Trade Law dratted the Contracts for the International Sale of Goods, which serves as a model statute tor drafting international sales contracts based on Article II of the Uniform Commercial Code.
83. 72 Thomas Donaldson: 1989, The Ethics of International Business (Oxford University Press, New York), pp. 37-38.
84. 73 See, M. Cherif Bassiouni: 1985, International Crimes: Digest/Index of International Instruments.
85. 74 The Berne (copyright) and Paris conventions have provisions that enable businesses in member countries to obtain international copyright protection tor their software products. Presently fifty-nine nations are members of one or more of these conventions.
86. 75 See, L. C. Green: 1976, 'An International Criminal Code - Now?', Dalhousie Law Journal 3, 560.
87. 76 See, Yoram Dinstein: 1975, 'International Criminal Law', 5 Isr. Y. B. Human Rights 5, 55.
88. 77 See, U.N. GAOR, 46th Sess. Supp. No. 10, U.N. Doc. A/46/10 (1991).
89. 78 Regrettably, the recent tragic bombing of the federal building in Oklahoma City shows how governmental units in locations long thought to be safe and secure from terrorist attack are extremely vulnerable nonetheless. Terrorist violence is now a chief threat to domestic and international security. See, Mark Edington, 'Now For the New Threat', New York Times, April 22, 1995 at 23.
90. 79 For a discussion of an "integrity" model of legal interpretation for the international community, see, Kevin jackson: 1993, 'Jurisprudence and the interpretation of precepts for international business', Business Ethics Quarterly IV(3).