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⁵ Ibid. at 268. Vienna Convention on the Law of Treaties, 23 May 1969, 155 U.N.T.S. 331 (entered into force 27 January 1980) [Vienna Convention].

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¹⁴ Kant says, “[i]f, as is inevitably the case under this [that is, a Republican] constitution, the consent of the citizens is required to decide whether or not war is to be declared, it is very natural that they will have great hesitation in embarking on so dangerous an enterprise. For this would mean calling down on themselves all the miseries of war, such as doing the fighting themselves, supplying the costs of the war from their own resources, painfully making good the ensuing devastation, and, as the crowning evil, having to take upon themselves a burden of debt which will embitter peace itself and which can never be paid off on account of the constant threat of new wars” (ibid. at 100).

¹⁵ Ibid. at 114 [emphasis in original].

¹⁶ Beitz, Charles R., “Social and Cosmopolitan Liberalism” (1999) 75(3) International Affairs 515 at 518.CrossRefGoogle Scholar

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¹⁹ Ibid. at 29.

²⁰ Ibid. at 32–33. Cicero also uses the circle metaphor, see Griffin and Atkins, supra note 9 at I:50–53.

²¹ Ibid. at I:12.

²² Kant, , “Perpetual Peace,” supra note 8 at 107–8Google Scholar [emphasis in original].

²³ For an explanation of the philosophical foundation of human rights, see Shue, Henry, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (Princeton, NJ: Princeton University Press, 1980).Google Scholar

²⁴ Of course, the individualism of the human rights paradigm is contested by those who advocate for third-generation human rights such as economic, social, and cultural rights, the right to self-determination, the right to development, and so on. See Vasak, Karel and Alston, Philip, eds., The International Dimensions of Human Rights (Westport, CT: Greenwood Press, 1982).Google Scholar

²⁵ For a classical explanation of the normative foundations of a state-based international legal system, see D’Amato, Anthony, International Law: Process and Prospect (Dobbs Ferry, NY: Transnational Publishers, 1987).Google Scholar D’Amato sees international law as based on the idea of enforceability. For him, domestic law is characterized by the fact that it can be enforced by the state, and he demonstrates that an equally effective enforcement system exists at the international level — “reciprocal entitlement violation” — whereby international law is enforced by the reciprocal violation of entitlements, a sort of tit-for-tat process. Given that such an enforcement mechanism exists, international law is just as much law as domestic law (at 13–26).

²⁶ See Kant, Immanuel, The Metaphysics of Morals, in Reiss, H.S., ed., Kant: Political Writings (Cambridge: Cambridge University Press, 1991), 133 at 137.Google Scholar

²⁷ For example, see Sidgwick, Henry, The Methods of Ethics, 7th edition (London: MacMillan, 1962) at 411.CrossRefGoogle Scholar

²⁸ Tetsuro, Watsuji, Watsuji Tetsuro’s Rinrigaku: Ethics in Japan, translated by Seisaku, Yamamoto and Carter, Robert E. (Albany, NY: SUNY, 1996).Google Scholar

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³⁰ Ibid. at 146–47.

³¹ Ibid. at 150.

³² Ibid. at 149–50.

³³ For publication as “revelation,” see ibid. at 147.

³⁴ Ibid. at 147.

³⁵ Ibid.

³⁶ Ibid. at 148.

³⁷ For a utilitarian justification of why our ethical obligations are not limited by distance, see Peter Singer, “Famine, Affluence and Morality” (1972) 1 (3) Philosophy and Public Affairs 229.

³⁸ Watsuji, supra note 28 at 159.

³⁹ Ibid. at 158–59.

⁴⁰ On accusation, see Levinas, Emmanuel, Otherwise Than Being or Beyond Essence, translated by Lingis, Alphonso (The Hague: Martinus Nijhoff, 1981 ) at 124Google Scholar. For my gloss on Levinas, see Mayeda, Graham, “Who Do You Think You Are? When Should the Law Let You Be Who You Want to Be?” in Shrage, Laurie, ed., “You’ve Changed”: Sex Reassignment and Personal Identity (Oxford: Oxford University Press, 2009), 194 at 202–3.Google Scholar

⁴¹ Camus, Albert, The Plague (New York: Alfred A. Knopf, 1960) at 230Google Scholar. As Henry Shue explains, “[t]he honouring of basic rights is an active alliance with those who would otherwise be helpless against natural and social forces too strong for them.” Shue, Henry, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton, NJ: Princeton University Press, 1996).Google Scholar

⁴² For a feminist critique of Kant’s rationalist approach, see Schott, Robin May, “The Gender of Enlightenment,” in Schmidt, James, ed., What Is Enlightenment? (Berkeley: University of California Press, 1996) at 478.Google Scholar

⁴³ For various discussions of the meaning and significance of globalization, see Bhagwati, Jagdish, In Defense of Globalization (Oxford: Oxford University Press, 2004)Google Scholar; Friedman, Thomas L., The Lexus and the Olive Tree: Understanding Globalization (New York: Farrar, Straus, Giroux, 1999)Google Scholar; Stiglitz, Joseph E., Globalization and Its Discontents (New York: Norton, 2002)Google Scholar; and Wolf, Martin, Why Globalization Works (New Haven: Yale University Press, 2004).Google Scholar

⁴⁴ Negri, Antonio and Hardt, Michael, Empire (Cambridge, MA: Harvard University Press, 2000)Google Scholar, state that globalization operates by means of “governance without government,” which “indicate[s] the structural logic, at times imperceptible but always and increasingly effective, that sweeps all actors within the order of the whole” (at 14). The modern concept of “empire” is distinguished from the ancient by “the recognition that only an established power, overdetermined with respect to and relatively autonomous from the sovereign nation-states, is capable of functioning as the center of the new world order, exercising over it an effective regulation and, when necessary, coercion” (at 14–15).

⁴⁵ Stiglitz, supra note 43 at 4.

⁴⁶ Scholte, Jan Aart, Globalizaton: A Critical Introduction (New York: St. Martin’s Press, 2000).Google Scholar

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⁴⁸ Friedman, Thomas L., The Lexus and the Olive Tree (New York: Anchor Books, 2000) at 8.Google Scholar

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⁵⁰ Jackson, supra note 3 at 10.

⁵¹ An illustration of the detrimental effects of such agreements is the case of Maher Arar. Arar was arrested by the US government while he was in Kennedy Airport in New York travelling to Tunisia on a vacation. The arrest occurred based on false information supplied by the Royal Canadian Mounted Police to the Americans. Arar was imprisoned in New York, interrogated, and then flown to Jordan and finally Syria, where he was detained for ten months in Syria and tortured. He was released in 2003 by the Syrian government, which had concluded that he had no connection to terrorism. For the details of the case, see Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (Arar Commission), Report of the Events Relating to Maher Arar, 3 volumes (Canada, 2006).

⁵² Rwanda and Somalia are only examples of the long list of disasters and atrocities committed by humans that are not faced head on by the international community.

⁵³ On the bad faith inherent in everyday human existence in regard to the denial of human finitude, see Heidegger, Martin, Sein und Zeit (Tübingen: Niemeyer Verlag, 1927).Google Scholar

⁵⁴ See Beitz, supra note 16 at 520-21.

⁵⁵ As I will explain later in the article, by equity, I do not simply mean equity as a general principle of law or the ex aequo et bono jurisdiction of the International Court of Justice (Vienna Convention, supra note 5, Article 38(2)). Instead, I am referring to a general orientation of the law of equity towards contextual interpretation and application of legal rules.

⁵⁶ Mencius, translated by Lau, D.C. (New York: Penguin, 1970) at IIA:6, 82–83.Google Scholar

⁵⁷ The four seeds are: a feeling of commiseration, a feeling of shame and dislike, a feeling of modesty, and a sense of right and wrong. Yu-lan, Feng, A History of Chinese Philosophy, translated by Bodde, Derk, 2 volumes (Princeton: Princeton University Press, 1952) at vol. 1: 120–21).Google Scholar

⁵⁸ See Wei-ming, Tu, “The Value of the Human in Classical Confucian Thought,” in Wei-ming, Tu, Confucian Thought: Selfhood as Creative Transformation (Albany, NY: SUNY Press, 1995) 67 at 71.Google Scholar

⁵⁹ Levinas, Emmanuel, Totality and Infinity: An Essay on Exteriority, translated by Lingis, Alphonso (Pittsburgh: Duquesne University Press, 1969) at 50–52Google Scholar. For an explanation of this text, see Mayeda, supra note 40. Of course, we often fail to take responsibility for our encounters, but the ability to deny responsibility does not deny the existence of it.

⁶⁰ Admittedly, international law seeks to do this to some degree through erga omnes obligations — obligations owed to the international legal community as a whole. A breach of such obligations allows any state to pursue a claim on behalf of the person whose rights have been infringed. See Currie, John, Public International Law (Toronto: Irwin Law, 2001) at 368Google Scholar. As Currie points out, the limitation of this approach is that it “ultimately relies upon the will of states to take up and pursue a claim in which they may have no direct interest and which may well conflict with other pressing concerns, for example of a political nature” (ibid. at 369).

⁶¹ A limited example of this is the existence of international claims commissions that are convened after an armed conflict between states to provide remedies for individuals who have been harmed by an unlawful war. For a foundational work in this area, see Lillich, Richard B., International Claims: Their Adjudication by National Commissions (Syracuse: Syracuse University Press, 1962)Google Scholar. For more recent articles, see Kleffner, Jann K., “Improving Compliance with International Humanitarian Law Through the Establishment of an International Complaints Mechanism” (2002) 15 Leiden J. Int’l L. 237CrossRefGoogle Scholar; and Kleffner, Jann K. and Zegveld, Liesbeth, “Establishing an Individual Complaints Procedure for Violations of International Humanitarian Law” (2000) 3 Y.B. Int’l Hum. L. 381.Google Scholar

⁶² Kant, supra note 22.

⁶³ Singer, supra note 37. This means that we must help others until we reach the point at which our next action will harm us more than the failure to alleviate the other’s suffering will harm her. This would entail giving away most of what we own — a radical proposal in the eyes of some.

⁶⁴ Miller, Richard, “Beneficence, Duty and Distance” (2004) 32(4) Philosophy & Public Affairs 357 at 359.CrossRefGoogle Scholar

⁶⁵ Shue, supra note 41 at 19.

⁶⁶ Miller, David, “Distributing Responsibilities,” in Kuper, Andrew, ed., Global Responsibilities: Who Must Deliver on Human Rights? (New York: Routledge, 2005), 95.Google Scholar

⁶⁷ Ibid. at 97.

⁶⁸ Ibid. at 98.

⁶⁹ Ibid. at 102.

⁷⁰ Ibid. at 103.

⁷¹ Ibid. at 109 [emphasis in original].

⁷² Ibid. at 112.

⁷³ Ibid. at 107.

⁷⁴ Miller calls this a “forward-looking” theory (ibid. at 106).

⁷⁵ For an elaboration of the nature of corrective justice, see Weinrib, Ernest J., The Idea of Private Law (Cambridge, MA: Harvard University Press, 2005).Google Scholar

⁷⁶ See Moran, Mayo, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (Oxford: Oxford University Press, 2003)CrossRefGoogle Scholar; and Supreme Court of Canada Justice Ian Binnie’s views on the drawbacks to concepts of reasonableness in R. v. Grant, 2009 SCC 32 at paras. 169–74.

⁷⁷ Immanuel Kant spoke of the need to judge by placing oneself in the place of others and imagining how they would judge. This would be an abstract way of assessing what “everyone” could recognize and understand. Another way of approaching it, and the way that I prefer, is to concretize this approach. A harm would be one that all would recognize if it violated some of the basic requirements for participating in a meaningful way in the formation of the norms of the society in which we live. In concrete terms, this means judging from the perspective of all those who will be affected by the judgment, which, in turn, means, in an ideal situation, consulting the relevant groups of affected individuals (for more details, see Mayeda, Graham, “Between Principle and Pragmatism: The Decline of Principled Reasoning in the Jurisprudence of the McLachlin Court,” in Mclntyre, Sheila and Rodgers, Sanda, eds., The Supreme Court of Canada and the Achievement of SocialJustice: Commitment, Retrenchment or Retreat (Markham, ON: Supreme Court Law Review and LexisNexis Canada, 2010)Google Scholar 41 also published in (2010) 50 S.C.L.R. (2d) 41.

⁷⁸ D’Amato, supra note 25 at 89.

⁷⁹ Franck, Thomas M., Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995) at 6.Google Scholar

⁸⁰ See Damrosch, Lori F. et al., International Law: Cases and Materials, 4th edition (St. Paul MN: West Group, 2001) at 58Google Scholar; Schachter, Oscar, International Law in Theory and Practice (Dordrecht: Martinus Nijhoff, 1991) at 35–37Google Scholar; Brownlie, Ian, Principles of Public International Law, 6th edition (Oxford: Oxford University Press, 2003) at 3Google Scholar; Arend, Anthony C., Legal Rules and International Society (Oxford: Oxford University Press, 1999) at 87Google Scholar; Pauwelyn, Joost, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge: Cambridge University Press, 2003) at 133 and 328.CrossRefGoogle Scholar

⁸¹ Pogge distinguishes “legal cosmopolitanism” from “moral cosmopolitanism.” The former “is committed to a concrete political ideal of a global order under which all persons have equivalent legal rights and duties – are fellow citizens of a universal republic,” while the latter “holds that all persons stand in certain moral relations to one another” (Pogge, supra note 7 at 169).

⁸² I say “structures” rather than simply “experiences” in order to avoid the objection, discussed earlier, that not everyone has the same subjective experience of responsibility when faced with the suffering of another.

⁸³ My approach is somewhat similar to that of Jürgen Habermas, whose theory of law depends on the uncovering of certain basic structures of language oriented towards mutual understanding and the articulation of a procedure for reaching consensus through discussion in the political forum that respects these basic socio-linguistic rules.

⁸⁴ See, for instance, van Staden, Alfred and Vollard, Hans, “The Erosion of State Sovereignty: Towards a Post-Territorial World? in Kreijen, Gerald et al., eds., State Sovereignty and International Governance (Oxford: Oxford University Press, 2000), 165Google Scholar; Anghie, Antony, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005).CrossRefGoogle Scholar

⁸⁵ Jackson, supra note 3 at 77.

⁸⁶ Allott, Philip, “The Concept of International Law,” in Byers, Michael, ed., The Role of Law in International Politics (Oxford: Oxford University Press, 2000) at 88.Google Scholar

⁸⁷ Ibid. at 249.

⁸⁸ Declaration on the Rights of Indigenous Peoples, UN GAOR, 61st session, 13 September 2007, UN Doc. A/RES/61/ 295; Kyoto Protocol to the UN Framework Convention on Climate Change, December 1997, 37 I.L.M. 32 (1998).

⁸⁹ Compañía de Aguas del Aconquija S.A. v. Argentina (2007), (International Centre for Settlement of Investment Disputes), Investment Treaty Arbitration <http://ita.law.uvic.ca/documents/VivendiAwardEnglish.pdf>.

⁹⁰ For a criticism of the decision rendered in this case, see Mayeda, Graham, “Bilateral Investment Treaties between Developed and Developing Countries: Dancing with the Devil? A Case Commentary on the Vivendi, Sempra and Enron Awards” (2008) 4(2) McGill Int’l J. Sustainable Development L. and Pol’y 119Google Scholar; and Mayeda, Graham, “Investing in Development: The Role of Democracy and Accountability in International Investment Law” (2009) 46(4) Alberta Law Review 1009CrossRefGoogle Scholar. On criticism of the application of the principle of fair and equitable treatment in other cases involving the Argentine financial crisis, see Mayeda, Graham, “Playing Fair: The Meaning of Fair and Equitable Treatment in Bilateral Investment Treaties (BITs)” (2007) 41(2) Journal of World Trade 273.CrossRefGoogle Scholar

⁹¹ Mayeda, , “Playing Fair,” supra note 90 at 252.Google Scholar

⁹² Ibid.

⁹³ Sen, Amartya, Development As Freedom (New York: Anchor, 1999) at 10 and 38–39.Google Scholar

⁹⁴ Indeed, as Vaughn Lowe has noted, corporations play an increasingly important role in international law (Lowe, supra note 1 at 225), and, consequently, admitting them into the realm of international legal persons still poses the danger of obscuring and marginalizing individuals and groups of individuals.

⁹⁵ Ibid. See also Alston, Philip, ed., Non-State Actors and Human Rights (Oxford: Oxford University Press, 2005).Google Scholar

⁹⁶ For another description of the “gap-filling” function of general legal principles, see Pauwelyn, supra note 80 at 127–30.

⁹⁷ Ibid. at 219.

⁹⁸ Ibid.

⁹⁹ Ibid. at 216.

¹⁰⁰ Schneiderman, David, ConstitutionalizingEconomic Globalization: Investment Rules and Democracy’s Promise (Cambridge: Cambridge University Press, 2008) at 2.Google Scholar

¹⁰¹ Ibid. at 20.

¹⁰² Ibid. at 228.

¹⁰³ For a description of this method, see Dworkin, Ronald, “Law’s Ambitions for Itself (1985) 71 Virginia Law Review 173Google Scholar. On my criticisms of Dworkin and my gloss on his principled approach, see Mayeda, supra note 77.

¹⁰⁴ Pauwelyn, supra note 80.

¹⁰⁵ Ibid. at 125.

¹⁰⁶ Ibid. at 127.

¹⁰⁷ Ibid.

¹⁰⁸ Ibid. at 229.

¹⁰⁹ This is the flip side of Schneiderman’s constitutionalism, which claims that these institutions — especially economic institutions — are already creating constitutional norms. Schneiderman is likely right in this regard, as the Security Council has been making law for the last twenty years or so.

¹¹⁰ Ibid. at 263–64.

¹¹¹ Ibid. at 264.

¹¹² By “broadly construed,” I mean “equity” in a broad sense, not just in the sense of principles that developed in the courts of equity that were incorporated into the common law when the courts of equity and common law courts in England were merged.

¹¹³ For instance, see the Vienna Convention, supra note 5, Articles 48(1) (“error”), Article 61(1) (“supervening impossibility of performance”), Article 62(1) (“fundamental change of circumstance”). See also Article 25 of the Draft Articles on State Responsibility, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/ 56/10 (2001) at 43 on force majeure as an example of customary international law rules of equity.

¹¹⁴ Franck, supra note 6 at 26.

¹¹⁵ Ibid. at 47. Here, Franck states: “One (at resent the most highly developed) approach to a inquiry into the justice of international law is to study the emerging role of equity in the jurisprudence of international tribunals.”

¹¹⁶ As Thomas Franck notes, equitable principles are common to all legal systems and became part of international law by means of Article 38(1)(C) of the Statute of the Permanent Court of International Justice ((1926), P.C.I.J. 7 (Ser. D) No. 1 ), which allows the court to employ “general principles of law recognized by civilized nations” (ibid. at 48). See also Schachter, Oscar, “International Law in Theory and in Practice: General Course in Public International Law” (1982) 1 (78) Rec. des Cours 9 at 74.Google Scholar

¹¹⁷ Case Concerning Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), [1997] I.C.J. Rep. 7 at 95 [Gabcíkovo-Nagymaros].

¹¹⁸ Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Order of 13 June 1993, [1993] I.C.J. Rep. 38 at paras. 16–17 (Judge Weeramantry, separate opinion) [MaritimeDelimitation case].

¹¹⁹ For the elements of the customary international law defence of necessity, see Article 25 of the International Law Commission’s Draft Articles on State Re-sponsibility, which describes the defence as follows:

• 1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless that act:

• a. is the only way for the State to safeguard an essential interest against a grave and imminent peril; and

• b. does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.

• 2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:

• a. the international obligation in question excludes the possibility of invoking necessity; or

• b. the State has contributed to the situation of necessity.

¹²⁰ CMS Gas Transmission Co. v. The Argentine Republic, 44 I.L.M. 1205 (2005) (International Centre for Settlement of Investment Disputes (ICSID)) (Award of 12 May 2005) at para. 320 [CMS Gas].

¹²¹ For discussion of whether the customary international law standard or the treaty standard ought to apply, see CMS Gas Transmission Co. v. The Argentine Republic (2007), (ICSID) (Annulment Decision of 25 September 2007) [CMS Annulment Committee] arguing that the treaty provision created lex specialis that displaced the international law standard; and Alvarez, José E. and Khamsi, Kathryn, “The Argentine Crisis and Foreign Investors: A Glimpse into the Heart of the Investment Regime,” IILJ Working Paper no. 2008/5, International Investment Law Journal, <http://www.iilj.org>,,>Google Scholar arguing that given the state of international law at the time the bilateral investment treaty was drafted, the non-precluded measures clause was intended to reflect custom (at 46).

¹²² Enron Corp. et al. v. The Argentine Republic (2007) (ICSID), Investment Treaty Arbitration, <http://ita.law.uvic.ca/documents/Enron-Award.pdf> [Enron].

¹²³ Sempra Energy International v. Argentine Republic, (2007) (ICSID), Investment Treaty Arbitration, <http://ita.law.uvic.ca/documents/SempraAward.pdf> [Sempra].

¹²⁴ Enron, supra note 122 at para. 306; and Sempra, supra note 123 at para. 348.

¹²⁵ LG & E Energy Corp et al. v. The Argentine Republic, 46 I.L.M. 36 (2006) (ICSID) (Decision on Liability of 3 October 2006) at para. 257 [LG & E].

¹²⁶ Ibid. at paras. 229 and 245.

¹²⁷ Ibid. at 245.

¹²⁸ For an assessment of the ethical significance of developed country responsibility for creating this instability, see Thomas Pogge, who argues that the fact that developed and developing countries share a common international institutional framework means that developed countries are responsible for harms in developing countries created by this framework (Pogge, Thomas W., World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge: Polity Press, 2002)).Google Scholar

¹²⁹ Pogge, Thomas, World Poverty and Human Rights (Cambridge: Polity, 2008) at 199–204.Google Scholar

¹³⁰ Ibid. at 204.

¹³¹ Business and Human Rights: Towards Operationalizing the “Protect, Respect and Remedy, Report of the Special Representative on Business and Human Rights, GA Doc. A/HRC/11/13 (22 April 2009) at para. 13.

¹³² Ibid. at para. 14.

¹³³ Ibid. at para. 15.

¹³⁴ For articles on this subject, see Ratner, Steven R., “Corporations and Human Rights: A Theory of Legal Responsibility” (2001) 111 Yale L.J. 443CrossRefGoogle Scholar (on the imposition of international corporate social responsibility obligations directly on corporations); Chesterman, Simon, “Oil and Water: Regulating the Behavior of Multinational Corporations through Law” (2004) 36 N.Y.U. J. Int’l L. & Pol. 307Google Scholar; Joseph, Sarah, Corporations and Transnational Human Rights Litigation (Oxford: Hart, 2004)Google Scholar; Frynas, Jedrzej George and Pegg, Scott, eds., Transnational Corporations and Human Rights (Houndmills: Palgrave Macmillan, 2003)CrossRefGoogle Scholar; Jägers, Nicola, Corporate Human Rights Obligations: In Search of Accountability (Antwerpen: Intersentia, 2002)Google Scholar; Vázquez, Carlos M., “Direct vs. Indirect Obligations of Corporations under International Law” (2005) 43 Colum. J. Transnat’l L. 927Google Scholar; Deva, Surya, “Human Rights Violations by Multinational Corporations and International Law: Where from Here?” (2003) 19 Conn. J. Int’l L. 1Google Scholar; Monshipouri, Mahmood, Welch, Claude E. Jr., and Kennedy, Evan T., “Multinational Corporations and the Ethics of Global Responsibility: Problems and Possibilities” (2003) 25 Hum. Rts. Q. 965CrossRefGoogle Scholar; Schrage, Elliot J., “Judging Corporate Accountability in the Global Economy” (2003) 42 Colum. J. Transnat’l L. 153Google Scholar; Breed, Logan Michael, “Regulating Our Twenty-First-Century Ambassadors: A New Approach to Corporate Liability for Human Rights Violations Abroad” (2002) 42 Va. J. Int’l L. 1005Google Scholar; Ramasastry, Anita, “Corporate Complicity: From Nuremberg to Rangoon: An Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations” (2002) 20 Berkeley J. Int’l L. 91Google Scholar; Stephens, Beth, “The Amorality of Profit: Transnational Corporations and Human Rights” (2002) 20 Berkeley J. Int’l L. 45Google Scholar; Anderson, John Christopher, “Respecting Human Rights: Multinational Corporations Strike Out” (2000) 2 U. Pa. J. Lab. & Employment L. 463Google Scholar; Amann, Diane Marie, “Capital Punishment: Corporate Criminal Liability for Gross Violations of Human Rights” (2001) 24 Hastings Int’l & Comp. L. Rev. 327.Google Scholar

¹³⁵ On the importance of building host-state capacity as opposed to relying on voluntary corporate social responsibility regimes, see McInerney, Thomas F., “Putting Regulation before Responsibility: Then Limits of Voluntary Corporate Social Responsibility,” GWU Law School Public Law and Legal Theory Research Paper (2005), 123, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=658O81#>.Google Scholar

¹³⁶ Weiss, Thomas G., “R2P after 9/11 and the World Summit” (2006) 24 Wis. Int’l L.J. 741 at 758.Google Scholar

¹³⁷ Greg Puley on behalf of Africa Peace Forum, African Women’s Development and Communication Network, Africa Institute of South Africa and Project Ploughshares, The Responsibility to Protect: East, West, and Southern African Perspectives on Preventing and Responding to Humanitarian Crises (Waterloo, ON: Project Ploughshare, 2005) at 3.

¹³⁸ Ibid. at 4.

¹³⁹ See, for instance, Slaughter, Anne-Marie, “A Duty to Prevent” (2004) 83 Foreign Affairs 136Google Scholar; Buchanan, Allen and Keohane, Robert O., “The Preventive Use of Force: A Cosmopolitan Institutional Proposal” (2004) 18(1) Ethics and International Affairs 1.CrossRefGoogle Scholar For a criticism of this view, see Weiss, supra note 136 at 752.

¹⁴⁰ International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa: Government of Canada, 2001) at 2.15 (p. 13) and 2.29–2.30 (p. 17).

¹⁴¹ According to the commission, the precautionary principle includes four elements: right intention, the use of force must be the last resort, the means used must be proportional to the humanitarian objective sought to be achieved, and there must be a reasonable prospect of halting or averting the harm sought to be alleviated (ibid. at 4.32–4.43 (pp. 35–37)).

¹⁴² Ibid. at 4.33 (p. 35).

¹⁴³ Puley et al., supra note 137 at 23.

¹⁴⁴ Ibid.

¹⁴⁵ Ibid. at 25.

¹⁴⁶ Ibid. at 24.

¹⁴⁷ Ibid. at 25.