Symposium: Constitutional Amendment and Dismemberment

YJIL Forum is delighted to present this Symposium featuring three responses to Richard Albert’s Constitutional Amendment and Dismemberment, recently published in Volume 43.1 of the Yale Journal of International Law. YJIL Forum is sincerely grateful to Judge Bernal, Professor Landau, and Professor Roznai for their thought-provoking responses.

On Constitutional Dismemberment
Written by Carlos Bernal

Rescuing the Unconstitutional Constitutional Amendment Doctrine:
A Reply to Richard Albert
Written by David Landau

Constitutional Amendment and “Fundamendment”:
A Response to Professor Richard Albert
Written by Yaniv Roznai


Rescuing the Unconstitutional Constitutional Amendment Doctrine: A Reply to Richard Albert

Written by David Landau
Florida State University College of Law

It is an honor to respond to Richard Albert’s provocative Article on Constitutional Amendment and Dismemberment. Albert’s Article brings together a range of recent scholarship showing that constitutional actors often use ordinary amendment tools or other mechanisms short of full constitutional replacement in order to undertake far-reaching changes that go to the core of a constitutional order. Albert conceptualizes this phenomenon as “dismemberment” rather than amendment and theorizes about when and how it should be regulated. Both the vocabulary and the theory should be a significant reference point for future work in the field.

In the course of his Article, Albert critiques what he calls a “standard” theory of constitutional change. By this he means the theory that draws a sharp distinction between the “constituent” power (that exercised by a people when creating constitution) and the “constituted” power (that exercised by constitutionally authorized representatives when amending a constitution). This distinction often underlies the recent phenomenon of courts enforcing limits on amendment power by invoking an unconstitutional constitutional amendment (UCA) doctrine or similar device. Albert attacks the theoretical foundation of the doctrine and its normative and practical implications. My major aim here is to rescue the UCA doctrine from Albert’s attack, and to argue that it is actually a significant tool in a world with his own normative concerns.

Albert critiques the standard division between constituted and constituent power on which the UCA doctrine is often—although not necessarily—said to rest. He suggests that the constituent power of the “people” is too vague a concept on which to hang this theoretical distinction. More concretely, he warns that the UCA doctrine threatens to over-incentivize constitution-making because it allows courts to block changes short of replacement. Frequent constitution-making, especially outside of the existing constitutional order, may prove to be highly destabilizing.

Albert instead calls for a more nuanced scheme of constitutional change embedded in the constitutional text. As he has done in prior work, he argues that the best solution is an escalating system of constitutional change written into the constitution itself. This scheme would give increasingly robust protection to core constitutional values by requiring especially onerous procedures to alter them. Such a textual scheme is optimal from the standpoint of constitutional design because it may channel more forms of change within the constitutional order. It also gives courts more legitimacy and grounding in enforcing limits to the amendment power. Indeed, Rosalind Dixon and I recently pointed out the increasing prevalence of these “tiered” constitutional designs and gave thoughts on their architecture and utility in a range of circumstances.

But when, as is often the case, constitutional amendment rules are not tiered, what should courts do? The UCA doctrine emerges, in this circumstance, as a second-best solution. The UCA and a tiered textual scheme are in fact fairly close relatives. The UCA doctrine allows courts to develop a relatively crude form of tiering inferred from the constitution by effectively requiring that certain changes to the “basic structure” or “core values” go through a constitution-making process, rather than using the normal amendment rules. The UCA doctrine in this sense is not a perfect replacement for a well-designed tiered scheme, but in many circumstances it will be better than leaving the gates wide open for constitutional dismemberment through a single-track, non-tiered amendment rule.

Albert recognizes this problem, but the solution he suggests is closer to the UCA doctrine than he acknowledges. Albert calls for political and judicial actors to create an implicitly tiered scheme whenever an explicit one is absent, based on two guiding principles. His first key principle is the “mutuality rule.” This rule requires that the most demanding procedure to change core constitutional values should be, as a presumptive matter, roughly equivalent to the procedure that brought the existing constitutional norms into being. Second, he emphasizes that the judicial role should be constructive rather than prohibitive—and thus essentially advisory—although unanimous or overwhelming judicial decisions should receive special respect.

The UCA doctrine, as practiced in most countries, is close to meeting Albert’s criteria. First, it often satisfies his mutuality criterion. Where core norms were originally put into the constitutional order through a process (such as approval by a constituent assembly plus referendum), a requirement that substantial changes to core norms also be done through constitution-making may effectively necessitate a similar process. Even in the absence of formal restraints on constitution-making, regional models and past national experience tend to act as a rough guide for constitution-making. This means that were political actors to employ the mutuality doctrine, it isn’t clear that it would constitute a significant change from current understandings or practices.

Additionally, the UCA doctrine should rarely be treated as truly prohibitive or as constituting the absolute “final word.”  Instead, the doctrine is better seen as what Dixon and I have called a “speed bump.” Realistically, the UCA doctrine can slow change a bit, perhaps giving time for a new political configuration to emerge, but the doctrine cannot block change indefinitely. This is because political actors can often find workarounds: they can proceed with constitutional replacement, or more commonly, they can exert influence over the court through appointments and other devices. In practice, the UCA doctrine can create some breathing space but cannot act as a permanent blockade.

Properly understood, then, the UCA doctrine functions quite similarly to Albert’s proposal for an advisory judicial role. In both, judicial decisions simply provide breathing space and an opportunity for reflection. The question then becomes which approach—Albert’s advisory judicial role or the UCA doctrine—more effectively serves this function. That is, which approach offers more opportunity for reflection and more effectively serves as a “speed bump?” A full answer demands both an empirical perspective and an attention to context. In some circumstances, political actors might be significantly influenced by a judicial decision advising certain procedures to legitimize changes to core constitutional norms. But the contexts in which radical changes are made to constitutions will often make such circumstances unrealistic. These are often contexts in which political leaders are seeking to consolidate power and to undermine—rather than advance—rule of law norms. Certainly this is true of the “abusive constitutionalism” examples that Albert cites, such as Hungary, where sweeping constitutional changes are being used to undermine the liberal democratic order. To a lesser degree, it may be true of other cases as well, such as the ongoing saga of the Japanese pacifism clause.

In conflictual circumstances characterized by institutional instability and attempted consolidation of power, harder-edged doctrines like the UCA doctrine can be quite useful. In Colombia, for example, President Alvaro Uribe’s quest to stay in power appeared unstoppable until the Constitutional Court’s Decision C-141 of 2010, which stated that a proposed constitutional change allowing three consecutive presidential terms was an unconstitutional constitutional amendment (Espinosa & Landau, p. 352). Had Uribe already consolidated more political power, he might have been able to circumvent the ruling, either by replacing the existing constitution or by packing or curbing the Court. But as it happened, the decision revealed weaknesses in Uribe’s coalition, and a range of actors around him quickly announced that they would comply with the decision. In short, the decision worked to provide more time for reflection as to whether allowing a president to serve for twelve straight years was a good idea. Political elites and the broader populace used the time provided by the decision to work their way to a negative answer. In that context, it is difficult to see a softer or more advisory opinion playing the same role.

The point is certainly not that all the focus should be on courts. Political actors, civil society, and popular protests can be and often are involved in enforcing “tiered” designs or implied limits to constitutional change. But a relatively robust judicial role seems in many circumstances to be both desirable and difficult to avoid. Albert’s solution—an escalating textual scheme for constitutional change—is a case in point. Even where the text sets out multiple tracks for different sorts of constitutional change, courts will still be called upon to determine which track is appropriate in which circumstances. For example, under Article 74 of the South African Constitution, a court must decide whether a change impacts the specially-protected core principles such as “dignity;” under Article 443 of the Ecuadorian Constitution, a court must determine whether changes affect the “fundamental structure” of the State or “set constraints on rights” and thus require more demanding procedures for change.

On methods for drawing the amendment-dismemberment line, Albert argues against limits on constitutional change that are overly normative in nature, such as criteria that exclusively protect the institutions and norms of liberal democracy. He also suggests that criteria should be drawn from domestic experience, rather than transnational norms. These criteria, of course, affect the way in which the UCA doctrine or other limits should be conceptualized and enforced.

Albert correctly emphasizes that there are different varieties of constitutionalism, although most countries around the world now seem to use at least the form, if not the practice, of liberal democratic constitutionalism. My own recent work has focused on the defense of liberal democratic constitutions from the increasingly prevalent erosion into “hybrid” or quasi-authoritarian status. When Dixon and I defend the potential utility of the UCA doctrine, for example, we explicitly do so only in the context of a threatened liberal democratic constitutional order. Our call for engagement with transnational norms and institutions recognized by other liberal democracies is thus confined to that context. Within that context, transnational engagements may help judges identify what is truly fundamental to their constitutional systems, lending their judgments greater sociological legitimacy. To be sure, some aspects of constitutional identity are truly local, but liberal democratic constitutions would seem to have a shared interest in remaining liberal democratic constitutions. Transnational experience may help to identify a shared liberal democratic minimum core.

Albert’s theory of dismemberment is itself normative, as it must be. He privileges constitutional stability in order to avoid potentially uncontrolled constitution-making. This drives his preference for constitutional transition through change internal rather than external to the existing constitutional order. He also privileges a “popular will” or consent-based conception of democracy, which drives his “mutuality” criterion. But both criteria complicate construction of a general theory of constitution-making that runs across all varieties of constitutionalism. For example, both constitutional stability and “popular will” may work differently in authoritarian variants of constitutionalism. The normative case for giving special protection to core constitutional norms, thus stabilizing them, may look much weaker when those norms form the nucleus of an authoritarian regime.[1] The argument that democratic will or consent, embodied in certain procedural mechanisms like a constituent assembly or referendum, underlies authoritarian constitution-making also seems problematic. Neutrality on forms of dismemberment is undesirable, and dismemberment of an authoritarian constitution should likely not be held to the same standard as dismemberment of a liberal democracy. Requiring onerous procedures for changing an authoritarian legal order may prolong repression rather than expression of popular will.

In short, the descriptive phenomenon of dismemberment is one that is truly global in scope. Albert’s Article has given us the vocabulary and conceptual tools to identity a significant practice that is occurring across all types of constitutional orders. But the normative implications of that practice may vary sharply depending on the constitutional starting point, and I have argued that the UCA doctrine is an important tool at least for defending liberal democratic forms of constitutionalism.  Albert’s analysis of these issues is certain to serve as the foundation of much future work on the forms and implications of constitutional change.

[1] There may of course be a pragmatic case for continuity with the prior regime in transitions from authoritarian to democratic constitutional orders. As Arato’s post-sovereign model of constitution-making emphasizes, such an approach may help to build trust and increase buy-in from affiliates of the old regime who are necessary for a successful transition. For similar reasons, there may also be a pragmatic case for gradualness in dismantling some authoritarian orders (consider the long Chilean constitutional transition as an example), but forcing people to live with authoritarian constitutional enclaves is normatively problematic.

Constitutional Amendment and “Fundamendment”: A Response to Professor Richard Albert

Written by Yaniv Roznai
Radzyner Law School

I am delighted to offer some brief observations following Professor Richard Albert’s fascinating study of “constitutional amendment and dismemberment.”[1] At the outset, I must state that Professor Albert’s Article is a rich piece raising many comparative, theoretical, and doctrinal inquiries. This short response does not attempt to provide a complete elaboration of my thoughts on the subject. Instead, it presents several focused criticisms—a fairly difficult task, since I agree with much of what Professor Albert has written.

Professor Albert’s core claim is that “some constitutional amendments are not amendments at all.”[2] Rather, they are “self-conscious efforts to repudiate the essential characteristics of the constitution and to destroy its foundations.”[3] While these revisions “dismantle the basic structure of the constitution,” they also engage in the process of “building a new foundation rooted in principles contrary to the old.”[4] Such transformative changes, he argues, are different from the traditional conception of a constitutional amendment—a “correction made to better achieve the purpose of the existing constitution”[5]—and should therefore be identified as moments of “dismemberment” rather than amendment.

I agree with both Professor Albert’s descriptive and conceptual claims. Certain constitutional “amendments” do not amend at all. They seek to transform the constitution, to replace it with a new one, and to revolutionize the constitutional order.[6] However, in light of these various objectives, my first criticism concerns terminology. Professor Albert uses the term “dismemberment” to describe the type of fundamental constitutional change he is occupied with. Although this word seems apt—it rhymes with “amendment” and invokes an image of the constitution being torn apart—it does not accurately describe the phenomenon at issue. Dismemberment is the act of cutting, tearing, pulling, or otherwise removing the limbs of a living thing. It has been practiced upon human beings as a form of capital punishment. Accordingly, this term carries a negative normative connotation that I believe Professor Albert does not intend.[7] Moreover, the term emphasizes the constitution’s destruction. While correct, destruction represents only one aspect of fundamental constitutional change. When a constitutional “dismemberment” passes, it not only destroys the old constitution, but also reconstructs a new constitution while maintaining legal continuity. The term “dismemberment” fails to encompass this latter element of reconstruction.

Indeed, a change to the constitution should be regarded as revolutionary so long as it entails a significant break or departure in the existing constitutional order, even if legal continuity is preserved.[8] This view stands in contrast to Hans Kelsen’s understanding of constitutional “revolution” as a change to, or a replacement of, the constitution in a way that is incompatible with the constitutional amendment process.[9] Process matters, of course, but substance matters more. Formal legal continuity should not mask a substantive discontinuity in the constitutional order. When a shift of such magnitude takes place, the existing legal order is replaced with a new one; it is revolutionized. Such a phenomenon may be captured by terms such as “constitutional replacement,” “constitutional transformation,” or “constitutional revolution.” But these terms are too broad for the kind of constitutional amendments Professor Albert describes. They encompass changes that occur outside of the formal amendment process, such as those introduced through a new constitution-making enterprise, judicial decisions, or even means outside of constitutional law.[10] Thus, I prefer the term “fundamendment” to describe constitutional amendments that fundamentally change the constitution.

My second challenge to Professor Albert’s concept of constitutional “dismemberment” rests within the notion of constitutional transformation or revolution. Professor Albert focuses on formal constitutional amendments. However, constitutions change through various means.[11] While the text of a constitution can be formally modified through an amendment, important constitutional changes may also occur outside the formal amendment process—for instance, through judicial interpretation or governmental practice.[12]

A judicial modification of the constitution often impacts the constitutional system more than a formal amendment.[13] One notable example is the radical transformation of the State of Israel from a parliamentary sovereignty system to a constitutional democracy. This transformation took place through a series of judicial decisions, all within the parameters of the existing constitution and without illegality, violence, or a new formal constitution-making process.[14] Professor Albert neglects to address such cases. Only towards the end of his Article does he briefly mention a recent case from Honduras, in which the Honduran Supreme Court declared void an unamendable provision regarding presidential term limits. He notes that the decision “amount[ed] to a constitutional dismemberment,” but declines to discuss it further.[15] Such cases deserve further study, despite Professor Albert’s reticence. What are the implications of such court-driven constitutional changes? I have argued elsewhere that such acts by the judiciary can themselves be regarded as unconstitutional.[16] Thus, Professor Albert’s theory of constitutional “dismemberment” must be further developed to deal with informal constitutional changes that affect the constitutional order in a similar way as formal “dismemberments.”

At the core of Professor Albert’s Article lies the rule of mutuality. He proposes that this principle guide future constitutional design. According to Professor Albert, “the deep constitutional transformation that dismemberment entails can be legitimated, with few exceptions, only by at least the same or similar configuration of constitution-making bodies” that made the original constitution.[17] In other words, the rule of mutuality authorizes the constitution’s dismemberment “using only the same procedure that was used to [ratify it].”[18] This calls for at least two tracks of formal constitutional change—one for ordinary amendments and one for “dismemberments.”[19]

The idea of dual constitutional amendment procedures is by no means new. During the French National Assembly on the 1791 Constitution, Nicolas Frochot proposed creating different procedures for making partial and total changes to the Constitution. Different procedures were needed, he suggested, because partial and total overhauls involve different types of constituent power: a total revision requires pouvoir constituant originaire, or original constituent power acting outside of the Constitution; meanwhile, a partial revision invokes pouvoir constituant derive, or derived constituent power, which the Constitution itself regulates.[20] While Frochot’s idea was eventually rejected, both the distinction he made between the two constituent powers and his dual-track amendment proposal align with Professor Albert’s suggestions for constitutional design.

I believe that the principle of mutuality contributes greatly to the constitutional design and constitutional theory literatures. In the field of constitutional design, this rule would allow “all manner of changes to be made without breaking legal continuity”[21] while sidestepping vague notions of constituent power. And herein lies the theoretical advantage. The concept of constituent power is highly perplexing. We do not know who “the people” are or how they can speak in one voice. Plainly put, we lack a precise formula for determining how citizens’ constituent power can be legitimately exercised.[22] To this problem, Professor Albert suggests a simple solution: “the rule of mutuality gives shape to constituent power theory by establishing a rebuttable presumption that the people exercise their constituent power when they speak in the same way they did when they wrote the constitution to begin with.”[23] Combined with the dual-track amendment process, the rule of mutuality offers a welcome, relatively simple, and practical solution for identifying the proper procedure for revising and even replacing a constitution. It provides citizens with an orderly process to exercise their constituent power, thereby preserving its credibility. It also prevents charismatic leaders from abusing the primary constituent power,[24] and has the potential to “strengthen[] the stability, legality, and legitimacy of the new system.”[25]

There are also some challenges to this framework. First, Professor Albert’s proposal to separate “dismemberments” from regular amendments provides a vehicle for the exercise of constituent power. But due to its extra-constitutional nature, constituent power cannot be regulated by constitutional procedures.[26] The people can always replace the constitution via a new constitution-making process that breaks legal continuity. Thus, Professor Albert’s theory ultimately does not resolve the challenges posed by constituent power’s radical ability to disrupt constituted boundaries.

Second, Professor Albert maintains that the rule of mutuality should “operate[] as a default rule where the constitution is silent.”[27] But if a constitution does not include a separate “dismemberment” process to begin with, any transformation enacted according to the rule of mutuality would break legal continuity, and thus become effectively illegal, strictly speaking.[28] Therefore, Professor Albert’s theory provides legitimacy to constitutional “dismemberments,” but ultimately lends little support to their legality.

Finally, according to Professor Albert, courts “would not have the legal authority to invalidate a constitutional alteration.”[29] Instead, their role would be “advisory”: “[a] court would issue advisory judgments on the nature of the transformative change that amending actors are pursuing, and on the quantum of agreement that the court believes is necessary to legitimate that change.”[30] While this approach aligns with Professor Albert’s earlier work,[31] I believe that his theory provides courts with a much greater role, as it should.

When separate constitutional procedures exist—one for regular amendments and another for “dismemberments”—the judiciary should determine what types of changes fall into each category. A constitutional court can conduct a “substantive-procedural” review of all proposed amendments to ensure that any “dismemberments” follow the appropriate, more demanding procedures for passage.[32] Unless the proper procedures are followed, the amendment should not take effect.[33] It is difficult to take seriously the theory and doctrine of constitutional “dismemberment” without providing courts the authority to conduct substantive review of all amendments.

In sum, constitutional “dismemberments” are already an existing practice worldwide. Professor Albert’s study is a very timely and important contribution on this phenomenon. It is an enriching and clever piece, which I predict will prove enlightening to comparative constitutional scholars. I hope it will guide future constitutional designers as well.

† Senior Lecturer, Radzyner Law School, Interdisciplinary Center (IDC) Herzliya. Email: An earlier version of this essay was presented in a workshop entitled “Understanding Constitutional Change: The State of the Field” at Tulane University Law School (Oct. 13, 2017).

[1] See Richard Albert, Constitutional Amendment and Dismemberment, 43 Yale J. Int’l L. 1 (2018).

[2] See id. at 2.

[3] Id. at 2-3.

[4] Id. at 3.

[5] Id.

[6] For discussion elsewhere regarding such amendments, see, for example, Yaniv Roznai, Constitutional Transformations: The Case of Hungary, in Constitutionalism in Context (David Law ed., forthcoming 2018).

[7] I thank Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center, for making this point.

[8] For further discussion on the notion of constitutional revolution, see, for example, Gary Jeffrey Jacobsohn, Making Sense of the Constitutional Revolution, 19 Constellations 164 (2012); Gary Jeffrey Jacobsohn, Theorizing the Constitutional Revolution, 2 J.L. & Cts. 1 (2014). This idea is further developed in Gary J. Jacobsohn and Yaniv Roznai, Constitutional Revolutions (forthcoming 2018).

[9] Hans Kelsen, Pure Theory of Law 209 (Max Knight trans., 1967).

[10] See e.g., Georg Jellinek, Constitutional Amendment and Constitutional Transformation, in Weimar: A Jurisprudence of Crisis 55-56 (Arthur J. Jacobson & Bernhard Schlink eds., 2000) (discussing the role of the judiciary in affecting the transformation of the U.S. Constitution).

[11] For discussions of constitutional change, see, for example, How Constitutions Change: A Comparative Study (Dawn Oliver & Carlo Fusaro eds., 2011) (providing a comparative analysis of constitutional change in fifteen countries); Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA (Xenophon Contiades ed., 2013) (comparing various models of constitutional change around the world).

[12] See, e.g., David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001) (arguing that since the first few decades of the nation’s founding, formal amendments have not been the main avenue for constitutional change).

[13] See Dieter Grimm, Constitutional Adjudication and Constitutional Interpretation: Between Law and Politics, 4 NUJS L. Rev. 15 (2011) (discussing the evolution of constitutional adjudication as a formal mechanism for resolving constitutional disputes worldwide).

[14] See Yaniv Roznai and Gary J. Jacobsohn, Judicial Activism, Courts, and the Constitutional Revolution, in Judicial Review: Process, Power, and Problems—Festschrift in Honour of Upendra Baxi (Salman Khurshid, Lokendra Malik & Shruti Bedi eds., forthcoming 2018).

[15] See Albert, supra note 1, at 68.

[16] See Yaniv Roznai, Unconstitutional Constitutional Change by the Courts, 52 New Eng. L. Rev. (forthcoming 2018).

[17] SeeAlbert, supra note 1, at 5.

[18] Id. at 6.

[19] SeeId.

[20] See Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers 113-14 (2017).

[21] Albert, supra note 1, at 6.

[22] See Richard S. Kay, Constituent Authority, 59 Am. J. Comp. L. 715, 742 (2011); Yaniv Roznai, “We the People,” “Oui, the People,” and the Collective Body: Perceptions of Constituent Power, in Comparative Constitutional Theory (Gary J. Jacobsohn & Miguel Schor eds., forthcoming 2018).

[23] Albert, supra note 1, at 6.

[24] David Landau offers an engaging discussion of how autocrats use mechanisms of constitutional change to undermine the democratic order in his Abusive Constitutionalism, 47 U.C.D. L. Rev. 189 (2013).

[25] Venice Comm’n, Report on Constitutional Amendment, 81st Plen. Sess., Doc No. CDL-AD(2010)001, at 15 (Dec. 11-12, 2009),

[26] See Carl Schmitt, Constitutional Theory 132 (Jeffrey Seitzer trans., 2008) (“No constitutional law, not even a constitution, can confer a constitution-making power and prescribe the form of its initiation.”).

[27] See Albert, supra note 1, at 57.

[28] Cf. Richard Albert, Four Unconstitutional Constitutions and Their Democratic Foundations, 50 Cornell Int’l L.J. 169 (2017).

[29] Albert, supra note 1, at 72.

[30] Id.

[31] See e.g., Richard Albert, Amending Constitutional Amendment Rules, 13 Int’l J. Const. L. 655 (2015); Richard Albert, Constitutional Handcuffs, 42 Ariz. St. L. Rev. 663, 698 (2010); Richard Albert, Counterconstitutionalism, 31 Dalhousie L. J. 1, 37, 47-48 (2008).

[32] Compare Const. of the Republic of Ecuador, art. 443 (Oct. 20, 2008) (granting the Ecuadorian Constitutional Court the explicit authority to observe the triple amendment procedures outlined in the Constitution), with Vicki C. Jackson, Unconstitutional Constitutional Amendments: A Window into Constitutional Theory and Transnational Constitutionalism, in Demokratie-Perspektiven: Festschrift für Brun-Otto Bryde zum 70. Geburstag, 47, 58-60 (Michael Bäuerle, Philipp Dann & Astrid Wallrabenstein eds., 2013) (describing how the California Supreme Court and the Austrian Constitutional Court both distinguish between regular “amendment” and more deliberative “revision” procedures).

[33]  In Austria, for example, the Constitutional Court supervises the different amendment processes and even invalidated a constitutional amendment that had passed through the ordinary revision process. calling it a “total revision.” See Verfassungsgerichtshof [VfGH] [Constitutional Court], Oct. 11, 2001, G 12/00 et al (Austria) (final opinion); VfGH, Mar. 10, 2001, G 12/00, G 48-51/00 (Austria) (preliminary opinion); Otto Pfersmann, Unconstitutional Constitutional Amendments: A Normativist Approach, 67 ZÖR 81 (2012).

On Constitutional Dismemberment

Written by Carlos Bernal
Colombian Constitutional Court


In Constitutional Amendment and Dismemberment, Richard Albert endorses four main claims: one conceptual, one descriptive, and two normative.

The conceptual claim is that there is a special kind of formal constitutional change: constitutional dismemberment. A constitutional dismemberment repudiates essential elements of a constitution—concerning its structure, identity, or core fundamental rights—and replaces them with opposite features without breaking legal continuity. A constitutional dismemberment differs from both a constitutional amendment and the promulgation of a new constitution. While an amendment aims to better an existing constitution, a dismemberment purports to unmake it. Moreover, the promulgation of a new constitution necessarily implies breaking legal continuity. A dismemberment necessarily implies not breaking it.

The descriptive claim states that “constitutional dismemberment” is a descriptive concept, not a normative one. A dismemberment can either improve or weaken democratic constitutionalism. Hence, it should not necessarily be the object of criticism or praise.

The first normative claim is that designers of rules for constitutional change should subject constitutional dismemberments to what Albert calls “the mutuality rule.” According to this rule, a constitutional dismemberment should only be permissible if it is undertaken through the same procedure that was used to promulgate the existing constitution. Thus, there should be at least two tracks for formal constitutional change: one for amendments, and one for dismemberments. The existence of a dismemberment track could foster legal continuity in times of crisis.

The second normative claim states that constitutional judges should not invalidate constitutional dismemberments if they comply with the mutuality rule. This claim to judicial self-restraint is grounded in the following assumption: whenever a constitutional dismemberment complies with the mutuality rule, then it is the constituent power that has changed the constitution. Constitutional judges should not invalidate the work of the constituent power.


The conceptual claim makes remarkable contributions to the field by proposing and spelling out the concept of “constitutional dismemberment.” Formal constitutional changes imply a modification in one or more constitutional provisions whose effect is a modification of an entire set of valid constitutional norms. Previously, scholars have referred to constitutional enactment, amendment, and explicit derogation as the conventional types of formal constitutional change. In addition, the literature and jurisprudence from various jurisdictions have used the concepts of constitutional “replacement,” “revision,” and “substitution” for designating formal constitutional changes that have been undertaken by means of the procedures for constitutional amendment but that imply an alteration to the basic structure of the constitution. Some of those changes can also give rise to what David Landau calls “abusive constitutionalism,” that is, “the use of mechanisms of constitutional change in order to make a state significantly less democratic than it was before.”[1]

Albert’s concept of constitutional dismemberment is a much clearer and more sophisticated tool for accounting for changes in the basic structure of a constitution. “Replacement” and “substitution” can refer either to the alteration of the basic structure of a constitution or to its derogation and a subsequent enactment of a new one. “Constitutional dismemberment” is not ambiguous in this sense. Moreover, due to its descriptive nature, “constitutional dismemberment” is able to account for formal constitutional changes that imply alterations to the basic structure without simultaneously amounting to an instance of abusive constitutionalism. An example of this would be the transformation of a federal into a centralized republic without altering the basic elements of democratic constitutionalism.

Finally, in a certain way, Albert’s normative claims can be interpreted as attempts to set a standard for achieving democratic legitimacy in processes of constitutional dismemberment. If a constitution was enacted by means of a process endowed with democratic pedigree, compliance with the mutuality rule would guarantee a comparable democratic pedigree of any constitutional dismemberment. Furthermore, in those cases, the claim to judicial self-restraint would ensure that constitutional judges do not obstruct the outcomes of democratically legitimate procedures of this kind by inserting themselves into the process. In this way, Albert’s normative claims entail defending democratic legitimacy in structural constitutional changes both from democratically deficient amendments and from judgments. Thus, this proposal would arguably capture the virtues of the theory of unconstitutional constitutional amendments without bearing its shortcomings. The mutuality rule would safeguard the work of the original constituent power both from political agents’ attempts to destroy it, and from judges’ attempts to invalidate new manifestations of the constituent power.


Nevertheless, I would like to raise seven objections to Albert’s claims. First, the concept of “dismemberment” has a negative connotation that links it to the language of destruction. For this reason, the talk of dismemberments that improve democratic constitutionalism—for instance, his reference to the Civil War Amendments to the United States Constitution—seems odd. The concept of “revision,” used by Albert in a previous paper, can avoid this semantic tension.[2] “Revision” can refer with clarity to formal constitutional changes that imply modifications to the basic structure of a constitution, either for strengthening or for weakening democratic constitutionalism.

Second, the plausibility of the descriptive nature claim is doubtful. Albert undertakes an analysis of the concept of “constitutional dismemberment” for the purpose of accounting for the essential properties of this phenomenon. However, raising the descriptive nature claim overlooks the fact that the possibility of normatively neutral conceptual analysis is highly contested.[3] Elucidating the nature of a constitutional dismemberment, and whether a constitutional change is an instance of it, implies taking a standpoint to justify or criticize that concept or their references. For instance, Albert praises the concept of dismemberment for fostering legal continuity. He assumes that legal continuity is desirable. In this way, he infuses a normative element into the descriptive claim. Ronald Dworkin’s view that the description of any phenomenon central to the law cannot be normatively neutral,[4] and that it is rather an “interpretation” grounded in moral judgments and beliefs,[5] applies here.

Third, the mutuality rule attempts to redeem the theory of the constituent power. On the one hand, this effort does not seem to be worthy at all. One of the greatest South American legal theorists of all time, Carlos Santiago Nino claimed that this theory was the source of a “serious conceptual disorder that negatively impacted scholars’ and judges’ thought processes.”[6] More recently, David Dyzenhaus argued that “legal and constitutional theory should avoid the idea of constituent power” because it results “in a deep ambivalence about whether authority is located within or without the legal order.”[7] What could then justify saving a flawed theory?

Even if this resurrection were desirable, it is not clear that the mutuality rule could accomplish that aim. Taking into account the undemocratic pedigree of many constitutions, it may be the case that what in t1 was considered as a manifestation of constituent power cannot be considered as such in t2. For instance, could a constitutional dismemberment of the German Basic Law undertaken by the exact procedure and by the same means through which it was enacted be considered as a manifestation of the current German constituent power? A dismemberment of the German Basic Law undertaken by means of a procedure replicating the drafting and enactment steps of 1948 and 1949 could not be attributed to the German constituent power. The initial procedure included deliberation between the three Western occupying powers (United States, United Kingdom, France) and three of Germany’s neighboring countries (Netherlands, Belgium, Luxembourg), as well as a consultation with the Ministerpräsidenten of the West German Länder, a discussion between the leaders of the Länder, the drafting by the Parlamentarischer Rat (integrated by sixty-five members elected by the Parliaments of the German Länder), and a ratification by the parliaments of all the Trizonal Länder.

Fourth, Albert attributes to the mutuality rule a role that it cannot play. Albert considers it as a normative directive. However, a closer observation reveals that it is an epistemological guarantee. The mutuality rule purports to identify the conditions under which it is certain that the constituent power has undertaken a constitutional dismemberment. This lacks any normative value unless the constitution has been created as a result of a process with democratic pedigree. Thus, from the perspective of democratic legitimacy, the mutuality rule is normatively over-inclusive. It can be used to justify undemocratic dismemberments of constitutions that were enacted in undemocratic ways but became democratically legitimate over time.

Fifth, Albert’s normative claims seem to overvalue legal continuity. Certainly, the dismemberment track claim fosters constitutional endurance, and this, in turn, favors legal continuity and stability. In the abstract, this is aligned with the purpose of democratic constitutionalism and of guaranteeing constitutional rights and the rule of law over time. However, sometimes other values can ground the realization of democratic constitutionalism and may overweigh legal continuity. For instance, in circumstances of anomie, in which existing norms are unsuitable for guiding society,[8] the process of enacting a new constitution could contribute to a democratic re-legitimization of the society much more than a constitutional dismemberment. This could also be the case when a dismemberment purports to abuse constitutionalism. In such circumstances, a revolution leading to a democratic process of drafting and enacting a new constitution could be preferable to the abolition or deterioration of democratic constitutionalism undertaken by means of dismemberment procedures, even when they are respectful of the mutuality rule.

Sixth, this final hypothesis is related to an objection to the claim of judicial self-restraint. According to the doctrine of constitutional dismemberment, judges should not rule that a dismemberment is unconstitutional if it respects the mutuality rule, even if it destroys democratic constitutionalism. From this perspective, this doctrine offers a weaker protection to democratic constitutionalism than certain interpretations of the doctrine of unconstitutional constitutional amendments. Elsewhere, I have claimed that judges should declare that formal constitutional changes are unconstitutional when they denature the constitution—for instance, when they abolish the entrenchment of constitutional rights, the rule of law, or the principle of separation of powers—or because they turn it into a constitution without constitutionalism.[9] Furthermore, when reviewing the constitutionality of formal constitutional changes, judges should use a standard that is respectful of the competences of the citizens, parliaments, and other political institutions and agents undertaking formal constitutional changes. According to this standard, the less a formal constitutional change is the result of a procedure observing the requirements of deliberative democracy, the more intensive the judicial review should be. Similarly, the more a constitutional amendment is the result of a procedure observing the requirements of deliberative democracy, the less intensive the judicial review should be. This standard better guarantees democratic legitimacy in constitutional changes that alter the basic structure of the constitution than the mutuality rule would.

Seventh, the doctrine of constitutional dismemberment aims to save the theory of the constituent power by fostering symmetry and legal continuity in formal structural constitutional changes. This goal misses the target of normative theories of constitutional change, which should be to safeguard democratic constitutionalism. There are several versions of the theory of the constituent power.[10] Their common element is the thesis that the constitution-making power is foundational, legally boundless, and sovereign.[11] From Albert’s doctrine would follow that constitutional dismemberments compliant with the rule of mutuality should meet these criteria. Hence, judges would lack the competence to invalidate them. This does not sufficiently safeguard democratic constitutionalism from attempts to undermine it through formal, structural constitutional changes. There can be dismemberments compliant with the mutuality rule that, at the same time, lead to a transformation of a democratic constitution into an illiberal one. In this sense, the doctrine of constitutional dismemberment can window-dress or legitimize episodes of authoritarian constitutionalism. Normative constitutional theories should attempt to devise guidelines useful for the preservation of the essential elements of a democratic constitution during processes of constitutional change. The doctrine of constitutional dismemberment clearly falls short of that goal.


In sum, Albert succeeds in identifying a category referring to formal structural constitutional changes that lies between the creation of a new constitution and a constitutional amendment, and in spelling out its properties by means of the concept of constitutional dismemberment. This concept, associated with the mutuality rule, also may preserve the democratic legitimacy of a constitution with democratic pedigree from political agents and judges, by requiring that formal structural changes be undertaken only by means of the same procedures for drafting and enacting the constitution.

Nevertheless, the concept of dismemberment has a negative connotation and normative aspects that are at odds with the intended descriptive nature. Furthermore, the doctrine associated with it has normative shortcomings. It overvalues legal continuity. Also, the mutuality rule purportedly assures that formal structural constitutional changes will be undertaken by the constituent power. However, it may be the case that what in t1 was considered as a manifestation of constituent power cannot be considered as such in t2. That rule may impose undemocratic requirements for the dismemberment of constitutions lacking democratic pedigree. Finally, as a normative principle it falls short in constraining formal structural constitutional changes that attempt to undermine democratic constitutionalism.

[1] David Landau, Abusive Constitutionalism, 47 U.C. Davis L. Rev. 189, 195 (2013).

[2] See Richard Albert, Amendment and Revision in the Unmaking of Constitutions (Bos. Coll. Law Sch. Legal Studies Research Paper Series, Paper No. 420, 2017),

[3] See Andrei Marmor, Legal Positivism: Still Descriptive and Morally Neutral, 26 Oxford J. Legal Stud. 683 (2006). For a broader discussion, see Neutrality and Theory of Law (Jordi Ferrer Beltrán, José Juan Moreso & Diego M. Papayannis eds., 2013).

[4] Ronald Dworkin, Justice in Robes 140-41 (2006).

[5] Ronald Dworkin, Justice for Hedgehogs 404 (2011).

[6] Carlos Santiago Nino, El concepto de poder constituyente originario y la justificación jurídica, in El lenguaje del derecho: homenaje a Genaro R. Carrió 40 (Eugenio Bulygin et al. eds., 1983).

[7] David Dyzenhaus, Constitutionalism in an Old Key: Legality and Constituent Power, 1 Global Constitutionalism 229 (2012); see also David Dyzenhaus, The Politics of the Question of Constituent Power, in The Paradox of Constitutionalism 130, 143-45 (Martin Loughlin & Neil Walker eds., 2008).

[8] On the concept of anomie, see Émile Durkheim, Le suicide. Étude de sociologie 264-311 (1897).

[9] Carlos Bernal, Unconstitutional Constitutional Amendments in the Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine, 11 Int’l J. Const. L. 339 (2013).

[10] Antonio Negri, Insurgencies: Constituent Power and the Modern State 4 (1999).

[11] See Joel I. Colón-Ríos, Five Conceptions of Constituent Power, 130 L.Q. Rev. 307 (2014).

Volume 43, Issue 1

Written by Richard Albert

Some constitutional amendments are not amendments at all. They are self- conscious efforts to repudiate the essential characteristics of a constitution and to destroy its foundations. And yet we commonly identify transformative changes like these as constitutional amendments no different from others. A radically transformative change of this sort is better understood as a constitutional dismemberment, not a constitutional amendment. A constitutional dismemberment is a deliberate effort to transform the fundamental rights, structure, or identity of the constitution without breaking legal continuity. Dismemberment is a descriptive concept, not a normative one; it can either improve or weaken liberal democratic procedures and outcomes. We can accordingly speak of the dismemberment of the Turkish Constitution from democratic to authoritarian, just as we can interpret the Civil War Amendments as dismembering the infrastructure of slavery in the United States Constitution. In this Article, I draw from three types of constitutions around the world—the codified Constitutions of Brazil, Colombia, India, Ireland, Italy, Jamaica, Japan, Saint Lucia, Taiwan, Turkey, and the United States; the uncodified Constitutions of New Zealand and the United Kingdom; the partially codified Constitution of Canada—to introduce the phenomenon, concept, doctrine, and larger theory of constitutional dismemberment. I explain how dismemberment helps address current problems in the study of constitutional change, how it clarifies our understanding of constitutional amendment, and also how it challenges our presuppositions about how constitutions do and should change.


Written by Suren Gomtsian, Annemarie Balvert, Branislav Hock, and Oğuz Kirman

FIFA, the world governing body of football (or soccer, as it is known in some countries), has long been associated with the World Cup and, lately, corruption scandals. Less known is FIFA’s success in building a private legal order that competes with public orders. This study explains how and why this private legal order has succeeded in governing the behavior of the involved actors and keeping them away from regular courts. We argue that the ability of the order to offer what other governance modes cannot is key: FIFA, as a transnational private authority, offers harmonized institutions that apply across national borders and, in many cases, are better accustomed to the needs of the involved parties. State-made alternatives, on the other hand, are often based on a one-size-fits-all approach and lack certainty of application. In addition, FIFA’s rules increase the gains of clubs and prominent footballers. While the interests of some other involved parties—lesser-known players in particular—might be better served by the application of formal State laws, the established equilibrium discourages deviation. This study contributes to a better understanding of alternative modes of institutional design, particularly by illustrating how private orders function in an environment where reputation plays a limited role.


Written by Mariana Pargendler

There is a vast literature documenting how contract laws differ across jurisdictions. However, we still know little about the reasons for, and the implications of, the observed distinctions, which are generally viewed as isolated, unrelated, and arbitrary. This Article reveals a clear, but thus far overlooked, pattern in the comparative law of contracts. The civil law places more limits on the scope of contractual obligations, whereas the common law more forcefully constrains the remedies available for breach of contract. The Article offers two interpretations for these differences. On the one hand, civil and common law systems reflect different roles of the State in contract law. In the civil law, the State plays a greater part in all respects: it goes further in providing and policing the substantive terms of the agreement, but once the contract passes muster, it is willing to sanction breaches with more severe consequences. Common law systems embrace the opposite, more restrained, approach: the State is less willing both to meddle with contract terms and to supply strong remedies for non- performance. On the other hand, the treatment of contract rights and remedies in each legal tradition can be viewed as complementary. Policing the terms of the contract and limiting the consequences of breach serve as alternative, though not equivalent, strategies to mitigate the effects of harsh bargains.


Written by Alexandra Perloff-Giles

The most common cyber threats today are “transnational cyber offenses”— attacks like malware, ransomware, and distributed denial of service that ripple across borders, ignoring territorial boundaries and exploiting the decentralized, networked architecture of the Internet. Regulating cyber activity and imposing effective sanctions for cyber offenses is challenging, however. The traditional system of territorial jurisdiction, tied to a system of Westphalian nation-states, is ill-adapted to cyberspace. Yet, without accountability measures, cyberspace risks becoming a Hobbesian state of nature, in which victims engage in self-help and cyber-vigilantism.

The existing literature on cyber threats focuses almost exclusively on two legal frameworks: domestic criminal law and international humanitarian law. Each of these bodies of law may be appropriate for certain cyber threats. Domestic criminal law may effectively address computer crimes like identity theft and financial fraud that target specific entities or individuals residing in the same country as the perpetrator. International humanitarian law, by contrast, may be appropriate for cyber aggressions that are carried out by one State against another and that constitute a “resort to armed force.” Neither legal framework properly applies, however, to transnational cyber aggressions.

This Note therefore urges scholars and policymakers to look to international institutions to develop new accountability mechanisms beyond domestic criminal law and the law of armed conflict. In particular, this Note sketches possible solutions based on international civil arbitration, transnational criminal law, and international criminal law. As the number of transnational cyber aggressions continues to escalate, and the nascent Internet of Things promises to raise the stakes of these threats, the future of cyberspace depends upon the elaboration of an effective global accountability regime.

Book Review: International Organizations and the Fight for Accountability

International Organizations and the Fight for Accountability: The Remedies and Reparations Gap by Carla Ferstman, Oxford University Press, 2017.

Reviewed by Isa Qasim

In 2010, United Nations peacekeepers from Nepal arrived in Haiti to assist with the country’s recovery following a magnitude 7.0 earthquake. Instead of fulfilling this mission, the Nepalese peacekeepers’ presence made the situation much worse. At the time, Nepal was suffering from a cholera outbreak, and the U.N. had neglected to screen the peacekeepers for the disease. While in Haiti, the peacekeepers’ base had poor sanitary conditions; sewage frequently leaked into a nearby river that, in turn, flowed into the largest river on the island. The result was a massive epidemic that has devastated the country, causing the deaths of at least 10,000 Haitians.

For six years, the U.N. refused to acknowledge any responsibility for bringing cholera to Haiti. Victims of the cholera outbreak brought a putative class-action suit against the U.N. in United States federal court, alleging tortious negligence in the organization’s screening and housing of the Nepalese peacekeepers. In 2016, the Second Circuit court dismissed the suit (Georges v. United Nations), on the grounds that the U.N. was immune from legal process. A report from a U.N. special rapporteur estimated the liability from such a suit would have been $40 billion. In response to public outcry, Secretary General Ban Ki-moon announced the creation of a $400 million voluntary fund to compensate the cholera victims in Haiti. As of the summer of 2017, less than $10 million had been raised and no significant further contributions are expected. The over 600,000 Haitians infected by this preventable disease will most likely never receive adequate restitution for the harms they have suffered.

It is this type of injustice that Carla Ferstman seeks to address in her recently published book, International Organizations and the Fight for Accountability: The Remedies and Reparations Gap.[1] In this work, Ferstman focuses on a surprising gap in human rights and international humanitarian law: the inability of those injured by international organizations to achieve restitution for the harms they have suffered. A combination of theoretical hurdles, narrow readings of obligations, expansive immunities, and inadequate internal processes makes it functionally impossible for many people whose rights have been violated by international organizations to achieve “justice”—which Ferstman defines as comprehensive reparations that include formal apologies, full compensation, rehabilitation, and assurances against reoccurrence (p. 84). As the Haiti example illustrates, this lack of recourse is a pressing issue, both for the individuals harmed and for the long-term credibility and effectiveness of international organizations.

Ferstman lays out a detailed conceptual landscape of the problem. Her work is divided into two parts. The first draws on jurisprudence, treaties, and practices to argue that international organizations are legally responsible for violations of human rights and international humanitarian law, and that they have an obligation to provide an effective process to claim reparations for said violations. The second half of the book surveys the current processes in place that enable, or more often forestall, victims in their quest to obtain reparations. In her conclusion, Ferstman offers some preliminary thoughts on how reforms could be made to improve access to justice. Structuring the book in this manner makes it a convenient reference for the scholar or lawyer who, for example, would like to quickly check how domestic courts have interpreted international organization immunity. However, this approach also obscures her central argument by including analysis of peripheral cases, like how international organizations address internal employment disputes. Her approach to reforms is decidedly legalistic, with little attention paid to prudential or political concerns or difficulties. The work is focused primarily on the U.N., although examples are also drawn from the African and European Unions, the WHO, the WTO, and other adjudicative bodies.

In the first section, Ferstman uses a variety of texts, especially International Court of Justice opinions and the Draft Articles on the Responsibility of International Organizations, to argue that international organizations have international legal personality, at least in certain contexts. By right of this personality, they can “assert rights, negotiate, and be held responsible for acts considered to be internationally wrongful” (p. 42). Such internationally wrongful acts include violations of human rights and international law such as sexual abuse by peacekeeping forces, uncompensated seizure of land and property during development projects, and refoulement—sending refugees back to countries where their safety is at risk. Drawing an analogy to a State’s obligation to provide domestic remedies for human rights violations, Ferstman argues that international organizations should be understood to be “obligated to afford reparation to injured individuals, both for human rights and international humanitarian law abuses” (p. 68). What is more, this implies a “connected obligation . . . to ensure that adequate and effective procedures are in place to give the obligation effect” (p. 68).

The second section of the book then seeks to evaluate how well international organizations meet this obligation. Generally speaking, they do not, according to Ferstman. Ferstman describes in detail the venues through which an individual could seek restitution from an international organization—internal adjudication, domestic courts, international and regional courts, and direct agent responsibility. Except for a few tangential cases, like internal employment disputes, none of these avenues provide an effective means for an individual to obtain reparations. The precise reasons are idiosyncratic to each venue, but the unifying themes are the presence of an international legal system that does not accord standing to injured individuals, broad interpretations of organizational and agent immunity, organizational resistance to anything beyond nominal compensation, and State disinterest in holding their agents responsible. Harmed individuals are rarely able to get a hearing and, if they do, will almost certainly be inadequately compensated. A recent example of this lack of accountability occurred at the M’Poko Camp for internally displaced persons in the Central African Republic, where French soldiers on a U.N. mission engaged in widespread sexual abuse. Internal U.N. processes were fragmented and ineffective and the Status of Forces Agreement for the mission prevented individual legal action against the soldiers, leaving the victims with no forum in which to seek restitution. International organizations are falling well short of Ferstman’s proposed obligation that they provide effective adjudicatory mechanisms that provide full reparations.

The normative contribution of International Organizations and the Fight for Accountability turns on the importance of this obligation, yet Ferstman does not offer a strong argument in support of it. She admits that there is substantial difficulty in determining “clear rules regarding reparation to injured individuals in the case of human rights and international humanitarian law breaches” (p. 91). She insists, however, that “[t]his difficulty does not evidence an absence of rules or a legal vacuum” (p. 91). Instead, the lack of clarity is used as a shield, protecting the organizations from the consequences of their actions. Ferstman bemoans this practice and insists that, nevertheless, international organizations have an implied obligation to ensure that there are “impartial and effective procedures in place to enable injured individuals to obtain reparation” (p. 91).

One might wonder, however, if the obscurity that causes Ferstman such difficulty is a feature rather than a bug. Consider again the Haitian cholera outbreak. The judgment of $40 billion for which they were potentially liable represents five times the U.N.’s annual peacekeeping budget. The nature of some of the U.N.’s most important work—responding to emergencies, enforcing peacekeeping agreements, working to eradicate disease and hunger—are high-risk operations that carry the potential to cause serious damage should there be a mistake. The anemic contributions to the voluntary compensation fund established by Secretary General Ban show that there is little political will among member States to fund the reparations likely to result from such mistakes. It seems quite possible that international organizations’ obligations are obscurely articulated precisely so they can be shielded from claims, the cost of which member States are not interested in bearing. Such a reading of the law would be consistent with the broad immunities granted to international organizations and their employees and the lack of an effective forum for injured individuals to pursue their claims.

Ferstman acknowledges that her conclusion on international organizations’ obligations is de lege ferenda—that is, her view of what the law should be (p. 68). Given this, it is frustrating that she gives so little time to counter-arguments or prudential concerns like the one above. Ferstman’s reasoning arguably implies an obligation to provide full reparations to individuals for violations of human rights law. But without any exploration of the political, prudential, and normative contexts of these organizations, her account is too narrow to be compelling. By her own admission, her assessment is hampered by spotty evidence and questionable legal reasoning, such as her use of State international obligations to infer similar ones for international organizations. Claiming, as Ferstman does, that “necessity has not been recognized as a rationale for precluding full reparation” might lead one to conclude that it is the law that needs to change, not the practice (p. 92). While the plight of the Haitians and similar victims is undoubtedly deplorable, a more holistic analysis is needed to show that developing such an obligation would best satisfy the long-term goals of human rights law.

In the final chapter, Ferstman briefly sketches some ideas for how victims could be better afforded reparations. The suggestions include strengthening internal standards, providing more independent oversight, and enabling individuals to bring personal claims before international courts. One can sense in the discussion that what has prevented such policies from already being implemented is not a paucity of imagination but rather a lack of political will and resources. Her narrow legal viewpoint is exemplified in the final proposal, which calls for a policy of full and effective reparations to victims, which would include formal apologies to affected individuals, rehabilitation, and full monetary compensation. Ferstman acknowledges that “funding to implement reparations is a real challenge for international organizations, who struggle to have their annual budgets approved by States” (p. 214). Nevertheless, Ferstman insists that it is “important that the regular budgets of international organizations account for the . . . need to pay reparations to injured individuals” (p. 214). She suggests that “internal funds can be built . . . to insure against claims” or that private insurance companies could underwrite the risk (p. 215). But it seems unlikely that the U.N. could ever adequately save or insure themselves against a $40 billion judgment. Full reparations may indeed be important, but we have no metric for evaluating how important they are compared to other potential uses of the money. Would States continue to fund organizations with such potentially massive liabilities? Or would rigorously imposing such a law simply lead to the end of international organizations? These are just some of the pressing questions left unanswered at the end of the book.

International Organizations and the Fight for Accountability is a thorough, detailed, and well-researched work, but it is too narrowly focused to prove its central point. If one seeks a comprehensive survey of the current legal theory and adjudicative avenues for victims of human rights law violations by international organizations, this book is an excellent resource and reference. If one already believes that international organizations should have an obligation to provide full reparations to people harmed by their actions, then it will provide you with a credible set of legal arguments to deploy and develop further. The limited scope of its argument, however, means that Ferstman’s work falls short of convincing a skeptical reader of the legal necessity or prudence of such an obligation.

[1] Carla Ferstman, International Organizations and the Fight for Accountability: The Remedies and Reparations Gap (2017).

Book Review: Is International Law International?

Is International Law International? by Anthea Roberts, Oxford University Press, 2017.

Reviewed by Beatrice Walton

It was a relatively straightforward Alien Tort Statute (ATS) case before the U.S. Supreme Court in 2003 that first led Anthea Roberts to the core question of her recent book, Is International Law International?[1] As she explains in the book’s preface, as a lawyer trained in Australia and in the United Kingdom who had come to the United States to work in a major New York law firm, there were many aspects of the U.S. legal profession and U.S. legal academy’s approach to international law that struck her as puzzling. When she first looked upon Sosa v. Alvarez-Machain—a case that has since become a key part of U.S. foreign relations law jurisprudence on civil liability for violations of “the law of nations,” and one studied widely by students in the United States—she later recalled thinking, “this isn’t international law” (p. xvii).

What is international law? At a time when so many commentators are concerned about the durability of the “international order,” or what some call the “liberal international order,” Is International Law International? serves as a welcome study of what international law means in some of the world’s major powers, particularly the United States, China, Russia, the United Kingdom, Australia, and France. Its goal is to understand whether these States and the communities within them understand international law in the same way. To the extent that disagreements about the content of international law inevitably transgress boundaries, the book asks whether these debates are in parallel, albeit in different languages, or whether communities around the world differ in terms of the “assumptions, arguments, conclusions, and world views” they bring to international law (p. 3). In the fields of international dispute settlement and diplomatic negotiation, the demand for such study is significant: if world leaders and lawyers, driven in part by the views and demands of domestic polities, are to have any hope of forging agreement at the negotiating table on the world’s most contentious issues, it would seem necessary that they speak mostly—if not entirely—the same legal language.

A short survey of contemporary politics reveals the need for such “comparative international law” research, and the potentially growing geographical fault lines in international law thinking. Take for example Russian President Vladimir Putin. Though he has used the term “international law” several thousand times in public speeches since assuming office,[2] his affinity for the term seems to have only grown with time. On Syria, President Putin went so far as to take out an Op-Ed in the New York Times in 2013, explaining that the United States would be violating international law by intervening to remove Syria’s chemical weapons stockpile. Even amidst grave crises, he contended, “The law is still the law, and we must follow it whether we like it or not.”[3] And in the media surrounding Russia’s military intervention in Ukraine and subsequent annexation of Crimea in 2014, President Putin and his administration have made elaborate attempts to justify Russia’s actions, referencing essentially every conceivable international legal argument: Crimea’s right to remedial self-determination, the legality of sub-State secession, Ukraine’s alleged status as a “failed State,” self-defense, Responsibility to Protect, and even an alleged invitation to intervene by the President of Ukraine.

In a critical article in Russkaya Gazeta in March 2015, Valery Zorkin, Chairman of Russia’s Constitutional Court, seemed to go further, proclaiming that Russia is actually bent on taking back notions of international law that Western international legal observers had been applying in hypocritical fashion around the world. As he explained, “Russia with regard to Crimea merely hurriedly rectified the new Kiev regime’s very gross violations of the key rights and freedoms of its own citizens—which [others], donning the latest mask of ‘champions of legality’ and in full agreement with that interested [Western] section of the world community, prefer not to notice.”[4]

China presents another example of a major power invoking the language of international law in response to recent controversies, developing what some see as its own doctrine of international law along the way. From territorial disputes in the South China Sea to China’s rejection of the jurisdiction of the International Tribunal for the Law of the Sea over these disputes, to disagreement between the United States and China over rights of passage for foreign militaries in coastal waters, Chinese diplomats and lawyers have invoked the concepts of “sovereignty” and “sovereign equality” with unabashed abandon. In doing so, they have sought to recapture notions of “sovereignty” percolating in international law in favor of an understanding more deeply rooted in Chinese history, as well as in contemporary development.

At the same time, Is International Law International? is careful not to become a study of mere politics, or of how great leaders have manipulated the language of international law for their own purposes. The book instead operationalizes its queries at an ostensibly more apolitical or sub-political level: the level of international legal academia—or what Roberts calls the “invisible college” of international lawyers working around the world. These lawyers and legal academics enjoy a privileged status in international law because their teachings serve as a subsidiary means of interpreting international law, as well as because they often advise governments and serve as counsel, arbitrators, judges, and experts in international legal disputes (p. 29).

A focus on international legal academia serves as a useful starting point for understanding global rifts in viewpoints about international law for another reason. Unlike domestic, or “municipal,” law, international law has long been touted as universalist in its core tenets, as well as in its aspirations; in The Hague, Brussels, Geneva, and other settings where international law is traditionally “done,” the cosmopolitan character of this “invisible college” has remained unquestioned. The book therefore presupposes that if students are no longer—or perhaps never were—trained in the same international law and international legal understandings, such cosmopolitan and universalist premises of international law might prove hollow over time; international law might seem less international, and viewpoints about international law more domestically contingent and regionally tethered, than commonly acknowledged.

To assess the potential for divisions in the contemporary international legal academy, the book adopts methodological approaches that are concertedly very technical. To the unsuspecting reader, the first substantive chapter, Chapter 3, disappoints for this reason. Overall, it has less the feel of a global reading of international legal content as bargained for at the outset, and more of an intricate examination of the international legal academy’s sock drawer—or perhaps an intricate cataloguing of the academic job market. For example, Chapter 3 begins by comparing the educational backgrounds of international law academics found at prominent law schools around the globe as well as by tracing their backgrounds to either government or private practice. It then links the publication placements of national academics to law journals around the world. With similar impression, Chapter 4 compares the major international law textbooks and casebooks found around the world, counting the references and scholarly citations used in these books, and logging whether these citations are to domestic or international sources. Out of these methods, Russia and France are said to be home to the most parochial international legal scholars in the world, as they have the fewest degrees in law from outside of their borders, likely due to language barriers. The United States and China fall somewhere in the middle, while the United Kingdom and Australia fair the best (pp. 74-83).

There may, though, be considerable methodological and analytical shortcomings in this exposition. For instance, a few additional suggestions seem incomplete, if not misleading: the suggestion that the U.S. has no foreign-trained clerks (p. 86), and that Yale and Harvard each only possesses two foreign-trained constitutional scholars (p. 86). Other data appears somewhat irrelevant to what seem to be Roberts’ driving, even if often implied, conclusions overall. As one example, how can the finding that France has participated in the second-greatest number of representations before the International Court of Justice be squared with two other factors that Roberts suggests matter for determining the parochial character of a legal academy: France’s relatively scant foreign journal placements and its incredibly few foreign-trained academics? If points like these cannot be reconciled, this may indicate issues in the probative value of the book’s metrics for assessing the “international-ness” of domestic legal systems.

On textbooks, the suggestion that U.S. course books would do well to make stronger engagement with international legal sources is, nevertheless, spot-on. However, Roberts’ larger analysis on this topic also seems to present some challenges. For instance, while U.S. textbooks are shown to cite the most domestic cases, textbooks in Russia are shown to engage with the second-most international cases (p. 147). This finding seems to be in some tension with Roberts’s suggestion that Russia is an echo-chamber of a legal system disconnected from international perspectives on international law, in part because of linguistic divides.

A few qualitative comparisons of substantive topics in international law provide payoff for the project. Clear divisions emerge in the treatment of the use of force and intervention by the United States since September 11, 2001, particularly with respect to the Iraq War. French books, for example, have clearly condemned the Iraq War as unlawful; in contrast, at least one leading international law textbook in the United States notes disagreement on the topic but fails to declare the event unlawful (pp. 199-205). Similarly, Chinese textbooks do not mention Responsibility to Protect or the United States’ military intervention in Kosovo, in contrast to most U.S. textbooks, while Russian textbooks outright declare the intervention in Kosovo a major violation (pp. 196-97).

Yet throughout the book, Roberts actually focuses rather little on these substantive issues. Instead, she seems more interested in a slightly different (albeit implicit) question—one more related to Sosa v. Alvarez-Machain than to how it is that China and Russia and other States around the world have come disagree on concepts like “sovereignty” and the legality of interventions: What is the appropriate relationship between domestic law—and in particular “foreign relations law” (where a State has a body of law carrying this name)—and international law?

Perhaps surprisingly, this question is the book’s most controversial, but also its most novel. Though Roberts hardly purports to address it explicitly, her decision to study scholarly citations to domestic foreign relations law cases and data on lawyers with backgrounds in domestic government and appellate practice nevertheless implores that we ask it. After all, how can the reader assess the “international-ness” of “international law” without an explanation of the relevance of foreign relations law canons within international law proper—let alone without some background on what references to domestic cases mean about a State’s approach to international law?

Robert’s suggestion that international lawyers are members and participants in what is actually a “divisible,” not an “invisible,” college may serve as a starting point for understanding what some aspects of such an appropriate relationship between international law and domestic law might look like (p. 2). That is, in contrast to a purely cosmopolitan elite, Roberts recognizes that international lawyers wear two hats: one pertaining to their skills in international law, and the other to their training and experience in domestic law.

The biggest implication of this observation might then be just a simple one: the need to keep separate which statements about international law are made while wearing each hat. For example, many international law textbooks in the United States would do well to re-label certain chapters as “foreign relations” law, as opposed to international law, to avoid any confusion as to the relevance of cases like Sosa, Kiobel, Medellín, and other cases involving international law before U.S. courts. Along similar lines, a wise suggestion might also be that U.S. courts, which have long made judgments referencing an unclear mix of both domestic and international law, should be more explicit about what findings and arguments they are making under which body of law. In the extensive line of cases addressing issues related to the president’s detention authority under the Authorization for Use of Military Force (AUMF) as relevant to the use of military commissions, for example, U.S. courts could afford to be clearer as to whether invocations of, say, the “law of war,” are meant to refer to the federal common law of war, or to international law. And in ATS cases, the courts would do well to determine whether the requisite elements and related standards to be applied when evaluating torts in violation of the law of nations are mandated or supplied by international law, as opposed to simply by domestic law. To date, it remains unclear whether these cases call on the courts to supply federal standards for legal constructions like aiding and abetting liability or mens rea, or whether these standards are mandated as part of international law in the first place.

However, making these efforts, we should remember, would hardly reduce the deeply ingrained importance of “foreign relations law,” in the United States—for better or for worse—despite what seems to be Roberts’ interest otherwise and her deep skepticism towards this body of law overall (pp. xviii-xvix). Indeed, even if legal academics and practitioners were to take a more active effort in keeping these bodies of law separate, there would still seem to be structural considerations within the U.S. federal courts system predisposing U.S. law to avoid answering questions of international law on the merits, in favor of answering domestic legal questions—foreign relations or otherwise. These forces deserve greater study.

In this vein, one might wonder whether—upon more careful comparative study outside the scope of Roberts’ book—the United States would actually prove to be that much of an outlier when it comes to having a domestic case law pertaining to international law issues, or simply is in some senses more explicit about the domestic legal structures that enable it to consider and implement international law. In other words, for every Al-Bahlul case there is radically stating that the United States can adopt divergent domestic legal constructs of otherwise very international concepts—even terms such as “war crimes”—in the federal courts,[5] there may well be an abundance of more hidden, and likely less-extreme, foreign analogues. For example, domestic European courts have recently convicted individuals of “war crimes” defined in reference to international law, which may not be universally agreed upon as international war crimes.[6]

Finally, perhaps the most important question to ask in the wake of Is International Law International? is what a divergence in understandings of international law means for international law overall. W. Michael Reisman, for example, would hardly be colored surprised by the findings of this book. As he explained several decades ago, perhaps one of the most important functions of the international lawyer has always been determining what, amongst a host of documents that might look like international law (lex simulata), international law is.[7] Guiding the lawyer as she parses through government statements, academic articles, briefs, notes, and other potential indicia of law is a series of key questions for determining “when is law made and how”: “(1) Who? (2) Says What? (3) In Which Channel? (4) To Whom? (5) With What Effect?”[8] Applying Reisman’s perspective, one implication may be that when U.S. lawyers speak to federal courts or domestic audiences about international law, these statements should carry relatively less weight for international law proper. By contrast, perhaps statements made by the United States before international tribunals would be cause for greater effect. Oversimplifying these interactions, however, may deceptively obscure the enduring relevance of each body of references in each sphere of influence.

In the end, it seems that when attempting to understand whether “international law is international,” two summary and at times conflicting questions are worth keeping straight: whether what is “international” about international law is the fact that it is common across States, or whether what is “international” about international law is simply its degree of divorce from domestic law—including from constructs implementing it in any given legal system. Citing the latter as evidence for the former, as in Roberts’ study, seems insufficient, however. The presence of Sosa in American textbooks may tell us something about what positions the U.S. State Department’s Office of the Legal Advisor, scholars, and other practitioners of international law might think about public international law on given subjects when compared with their foreign counterparts, but likely not much—even though Sosa is, for better or (often) for worse, a relevant aspect of practicing international law in domestic U.S. courts overall.

[1] Anthea Roberts, Is International Law International? (2017).


[3] Vladimir V. Putin, A Plea for Caution From Russia, N.Y. Times (Sept. 11, 2013),

[4] “Право – и только право – О вопиющих правонарушениях, которые упорно не замечают” (Mar. 23, 2015),

[5] Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014).

[6] See O. Hathaway, P. Strauch, B. Walton, & Z. Weinberg, Defining War Crimes: Towards a Minimum Standard (2018) (manuscript on file with author).

[7] W. Michael Reisman, “International Lawmaking: A Process of Communication,” Lasswell Memorial Lecture, American Society of International Law, 75 Am. Soc’y Int’l L. Proc. 101, 102 (1981).

[8] Id. at 105-06.

Not “Final and Irreversible”: Explaining South Korea’s January 2018 Reversal on the “Comfort Women” Agreement

Written by Hyun-Soo Lim*

Approximately two years ago, the Foreign Ministers of South Korea and Japan announced that they had “final[ly] and irreversibl[y]” resolved the issue of Japanese wartime sexual slavery.[1] In doing so, they were attempting to address one of the most serious human rights issues in East Asia and a major source of tension between the two countries. But after events last month, the talk of finality is in doubt. In this post, I explain the weaknesses that plagued the agreement from the start, and why it has come close to unraveling.

A Resolution that Wasn’t

In December 2015, the South Korean and Japanese foreign ministers appeared at a joint press conference to deliver a stunning announcement: the two countries agreed to “final[ly] and irreversibl[y]” resolve the issue of Japanese wartime sexual slavery (“the Announcement”). The Announcement consisted of four main elements: (i) an apology from the Foreign Minister on behalf of Prime Minister Abe to the South Korean victims of Japanese military sexual slavery; (ii) Japan’s promise to deliver more than $8 million to a support fund for survivors; (iii) South Korea’s assurance that it will address Japan’s concern over the “girl statue” placed in front of the Japanese Embassy in Seoul in honor of the victims; and (iv) a mutual agreement to refrain from accusing or criticizing each other regarding the issue in the international community.

After decades of activism by survivors, human rights groups, and international human rights bodies, the Announcement came as a surprise. Prime Minister Shinzo Abe had consistently justified Japan’s war crimes during World War II— and, on occasion, even denied that the women were forced into sexual servitude. The deal was so unlikely that some have suggested that the Obama administration had pushed the deal heavily, as the United States is vested in a stable relationship between its two major allies in the Pacific.

But the Announcement faced immediate backlash. Many survivors refused the Japanese payment, rejecting the Announcement on both substantive and procedural grounds: the negotiations had been conducted entirely in secret, without any input from the survivors or their advocates, and failed to acknowledge Japan’s legal responsibility. The U.N. Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) echoed the victims’ call for an official apology recognizing State responsibility, as well as adequate reparations that “protect and uphold the victims’ right to truth, justice and reparation.”

The critical sentiment was so strong that all candidates, across the political spectrum, in the South Korean presidential election in May 2017 promised to either nullify or renegotiate the agreement. South Korean President Moon Jae-in delivered on this promise in December 2017, acknowledging the agreement’s inadequacy and ordering a ministerial review of the negotiations process.

On January 9, 2018, South Korean Foreign Minister Kang Kyung-hwa reported the findings. To Japan’s dismay, the minister declared that the 2015 announcement does not, in fact, represent “a genuine resolution” of the issue, and added that South Korea would designate its own $8.8 million fund to care for the survivors and would continue discussions on what to do with the payment from Japan. Nonetheless, South Korea admitted that an official deal had been made and said it would not attempt to renegotiate it.

In other words, the South Korean government fell short of scrapping the deal altogether, but essentially backtracked on the “finality” and “irreversibility” of the agreement which Japan had persistently demanded. Prime Minister Abe immediately balked at this nuanced change in stance, dismissing the idea that Japan would issue additional statements acknowledging the war crime. Thus, the current standing of the Announcement, and the state of the “Comfort Women” issue, is far from clear.

Legal Standing of the Agreement

Dubious from the start

The nature of the 2015 agreement was puzzling from its inception. It was not only publicized at, but took the form of, a joint press conference by South Korean and Japanese foreign ministers. Moreover, it consisted of each foreign minister reading a separate statement on behalf of each country and making promises only for what each country would do on its own. There was no joint statement.

Some in the South Korean legal establishment immediately pushed back. The country’s judiciary demanded that the administration clarify the agreement’s legal nature, to which the executive branch responded that there “does not appear to be a treaty.” And in response to a FOIA-like request from South Korean lawyers, the Ministry of Foreign Affairs confirmed that there was no written text accompanying the Announcement.

The oral nature of the Announcement, the absence of an accompanying text, and the fact that there were two separate statements—not explicitly acceded to by the other party—are particularly relevant under international law: they pose serious obstacles to understanding the Announcement as a binding bilateral agreement.

Under international law, a legally binding bilateral or multilateral instrument is often referred to as a “treaty,” a generic term that could refer to a variety of accords or conventions.[2] It is uncontroversial that whatever the parties call the agreement is irrelevant to judging whether an international engagement has an obligatory character. But this also means that not all communications promising or pledging something amount to a “treaty,” or an internationally enforceable agreement.[3]

The 1969 Vienna Convention on the Law of Treaties (VCLT), the first inter-State codification of the rules governing treaties at a universal level, explicitly excludes oral agreements from the scope and definition of a treaty.[4] Nevertheless, the VCLT also recognizes that oral agreements may possess legal force.[5] This is consistent with customary international law, under which international agreements need not take a particular form.

So what matters? Intention of the parties, rather than form, is the central question in determining whether a treaty has been concluded. At a minimum, a treaty requires the contracting parties to have “intended to create legal rights and duties in the engagement they have concluded.”[6] As such, some scholars have pointed to the Announcement’s lack of conspicuously obligatory terms (e.g. A shall, B must), along with the absence of any clause defining a breach or its consequences, to argue that the statements were more of a gentlemen’s handshake than a legally binding treaty.[7]

The lack of an underlying text signed by both parties raises substantial doubt as to whether the parties ever came to an agreement at all. Fatally, Professor Seung Ju Bang has pointed out that not only do the statements read at the press conference differ from the outlines of the agreement posted on the foreign ministry websites of the two countries, the outlines also differ from each other.[8] Put simply, there are small but material differences in the South Korean and Japanese versions of the agreement.

For instance, at the press conference, both countries stated that the issue’s “final and irreversible resolution” depends on “above-mentioned measures” being steadily or faithfully implemented. The South Korean outline later posted on the Ministry of Foreign Affairs’ website also describes the precondition that “the above-mentioned measures stated by the Government of Japan [be] faithfully implemented” (emphasis added). But the outline posted by the Japanese Foreign Ministry phrases the premise as “the Government will steadily implement the measures specified in (2) above” (emphasis added). In other words, the Japanese text, unlike the oral announcement at the press conference, limits the premise of the implementation to a one-time contribution to the fund for survivors, rather than the entire statement. Yet, even the Japanese outline has the South Korean foreign minister stating that refraining from criticizing each other in the international community will happen “on the premise that the Government of Japan will steadily implement the measures it announced” (emphasis added), and not limited to the fund contribution. Therefore, it is ambiguous whether the two countries actually agreed on the exact premise upon which their agreement rested to resolve the issue. Indeed, Abe’s Deputy Chief Cabinet Secretary told journalists that the two countries “did not discuss point by point” whether the removal of the girl statue was a premise of the deal’s implementation.

Admittedly, many treaties are plurilingual, some of which do not have a “master” text with clear authority. When the translations conflict, international courts compare relevant texts in order to ascertain the intention of the parties. However, the issue here extends far beyond issues of translation. This lack of a single “official” or “authentic” text (even aside from translations) leaves the Announcement particularly vulnerable to the charge that the parties lacked the necessary intention. There was no common set of remarks, but only separate statements, with each foreign minister carefully refraining from officially “signing onto” the other’s remarks.

Preventing this kind of confusion is precisely why the International Law Commission decided to limit treaties to a written form while drafting the VCLT. The Commission recognized that the interests of clarity and simplicity would be better preserved in a written form. It anticipated that progress in telecommunications would only lead to a proliferation of unwritten promises or pledges, causing controversy over the exact definition of a legally binding agreement.[9] The Restatement (Third) of the Foreign Relations Law also reflects this concern, stating that the terms of an oral agreement, while no less binding, “may not be readily susceptible of proof.”[10]

Given these concerns of ambiguity and vagueness of an oral announcement with no accompanying text, it is difficult to believe that South Korea and Japan seriously intended the Announcement to function as a treaty. Both sides were fully aware of how contentious and sensitive this issue has been for the past twenty-six years. They also knew from experience that the South Korean public and survivors had in the past rejected similar expressions of apology and pledges of funding when they fell short of official acknowledgement of legal responsibility.

Furthermore, there was no practical barrier to discussing or concluding a treaty in its conventional sense, if that is what the parties had actually wished to do. The only probable explanation for their haphazard attempt at resolution, then, is that the Announcement was not meant to be binding at all. President Park Geun-hye could not consent to an irreversible deal before gauging the public reaction; the Japanese government reportedly wished to finalize an official document, but the Park administration wanted to delay drafting a written form out of “concerns for public opinion trends.”

A material breach?                                                                          

 Even if we were to assume that the Announcement was meant to be an agreement (albeit not a treaty), it is likely that there has already been a breach. The purpose of the so-called agreement is clear: to achieve a common understanding that there has been an adequate apology and compensation, and that the two sides have reconciled and moved beyond the past atrocity of military sexual slavery. Borrowing language from the law on treaties, any “violation of a provision essential to the accomplishment of the object or purpose of the treaty”[11] is a material breach, and “entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.”[12]

From South Korea’s perspective, it did not take long for Japan to arguably violate the spirit, if not the letter, of the Announcement. A central tenet of the Announcement was Japan’s “most sincere apologies and remorse to all the women who underwent immeasurable and painful experiences . . . as comfort women” and its recognition of (albeit ambiguous) “responsibilities.” Yet Prime Minister Abe contradicted his apology within three weeks of the Announcement, assuring the Japanese Parliament that there was no evidence of forced mobilization of the women.

Moreover, the Announcement stated that the two governments would “refrain from accusing or criticizing each other regarding this issue in the international community.” The application to South Korean criticism of Japan regarding its war crimes record is clear. But the clause also applied to Japanese criticism of South Korea: indeed, before the agreement, political and social leaders in Japan had accused South Korea of fabricating the forced nature of military sexual slavery for political aims. Yet Foreign Minister Kishida reinvoked Japanese revisionism, stating that the “Comfort Women” should not be described as “sex slaves” since “the term does not match the facts.” And Deputy Foreign Minister Sugiyama repeated Abe’s whitewashing of the crime at a major international forum a month later, arguing that Japan knew of no documents supporting that the women were “forcefully recruited.” These statements seem awfully close to breaching a promise to “refrain from accusing or criticizing” South Korea since they challenge the latter’s demonstration of the forced nature of sexual slavery.

Japan’s argument for a breach is possibly even stronger. Japan has noted the South Korean government’s failure to remove the girl statue in front of its embassy in Seoul. In fact, this symbol has been given greater potency as new “girl statues” are being erected across the country and abroad by civil society. Even though the parties technically agreed only to “strive to solve [the ‘girl statue’ issue] in an appropriate manner,” Japan appears to have interpreted this promise to mean that the South Korean government would put pressure on the public to remove the statues. (By contrast, the South Korean government stressed that it does not have the right to order removal of something set up by civic groups.) Most importantly, despite her insistence that South Korea has not abrogated and will not attempt to renegotiate the deal, South Korean Foreign Minister Kang Kyung-hwa’s recent declaration that the 2015 agreement cannot be a genuine solution to the “Comfort Women” issue seems to represent an additional breach. Indeed, it contradicts the finality and irreversibility that were at the heart of the Japanese demands.

The Way Forward

In sum, South Korea’s nuanced change of stance regarding the “Comfort Women” agreement of December 2015 reflects the reality that the agreement had fatal flaws both legally and politically. The agreement’s failure to properly consult with the victims and to follow international guidelines on settlement of war crimes has severely—and in my view, rightfully—undermined it.

Regardless of Japan’s persistent denial of legal responsibility, the survivors’ persistence will sustain the issue’s importance in bilateral relations and the international community. Yet with only thirty-one “grandmother” survivors remaining in South Korea, time is running out on the opportunity for serious inclusion of victims’ voices in a Japanese-South Korean reconciliation project. If the two governments wish to resolve their differences in a sustainable manner, they should work together to heed the wishes of the survivors and the recommendations from the international human rights community—and they would do well to put their agreement into writing. A politically expedient compromise that papers over disagreements and lacks the blessing of survivors will simply not endure.


*Yale Law School, J.D. Candidate, 2018

[1]The term “Comfort Women” refers to as many as 400,000 women who were deceived, trafficked, or forced into Japanese military sexual slavery in the 1930s and the Second World War. The vast majority of “Comfort Women” came from Korea (then under Japanese colonial rule), but the victims came from almost every country under Japanese influence in Southeast and Northeast Asia. The victims were held prisoners in army bases or prostitution houses throughout Asia, where they were repeatedly raped and abused daily, some for years. Most women were between the ages of eleven and twenty.

[2] Denys P. Myers, The Names and Scopes of Treaties, 51 Am. J. Int’l L. 574, 574-605 (1957).

[3] For instance, the International Court of Justice held that a letter sent by Nicaragua to the Organization of American States was a “political pledge” only, without legal effects, because it contained no concrete commitments. The concept of “agreement” therefore needed some sort of bilateral communication regarding a commitment. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 261 (June 27) (“However, the Court is unable to find anything in these documents, whether the resolution or the communication accompanied . . . from which it can be inferred that any legal undertaking was intended to exist.”)

[4] Vienna Convention on the Law of Treaties art. 2(1)(a), May 23, 1969, 1155 U.N.T.S. 331; 8 I.L.M. 67 [hereinafter VCLT].

[5] Id. art. 3(3) (“The fact that the present Convention does not apply . . . to international agreements not in written form … shall not affect: (a) the legal force of such agreements . . . .”).

[6] P.K. Menon, The Law of Treaties between States and International Organizations 10 (1992).

[7] See, e.g., Choung Jaemin, The Relationship between the Decision of the Constitutional Court of Korea and the Intergovernmental Agreement with respect to the “Comfort Women” Issue, 61 Korean J. Int’l L. 189, 213 (2016) (Choung, a district court judge in South Korea, does not believe that the Announcement has any legal force); Cho Shi-hyun, Legal Meaning of the 2015 Korea-Japan Agreement, 60 Democratic Legal Stud. 79, 97 (2016).

[8] Seung Ju Bang, Constitutionality of the Agreement between the Foreign Affairs Ministers of the Republic of Korea and Japan on the Issue of “Comfort Women” on 28 December 2015, 10 Vienna J. on Int’l Const. L. 400, 419-20 (2016).

[9] Int’l Law Comm’n, Commentary to art. 3 of the Vienna Convention on the Law of Treaties.

[10] Restatement (Third) of the Foreign Relations Law of the United States, § 301 cmt. b (1986) (suggesting that it would be difficult to prove the terms of the agreement where there is no text to ascertain the existence of specific terms).

[11] VCLT, supra note 4, art. 60(3)(b).

[12] Id. art. 60(1).