New Zealand Yearbook of International Law
‘Good governance’ is an objective to be achieved at both domestic and international levels. Within this goal, important steps like democratic procedures, equality and freedom from corruption are paramount. However, despite the axiomatic worth of such goals, the practice of certain States in the international community is the antithesis of such objectives as their practices may introduce corruption. This problem is most prominently displayed with the issue of ‘vote buying’. The best example of vote buying within an international forum at the moment is with regard to the International Whaling Commission (IWC). In this instance, the alleged buying of votes has been associated with linkages to Overseas Development Assistance (ODA or ‘aid’).
The current attempts to confront this practice have come via three avenues. Firstly, the international community is developing a body of law aiming at prevention of corruption or corrupt practices operating at a number of levels. Secondly, with regard to the specific instance of possible corruption being linked through ODA, the international community is moving to untie conditionality attached to aid to low income countries for commercial reasons. Finally, the debate is being taken to the forefront of a number of specific international forums, such as the IWC, which have been forced to directly reckon with the problem. Although these developments are welcome, it may be necessary for the international community to go further. The forums that are being increasingly entrapped within such practices should consider appropriate measures that defend both the integrity and equality of all their members, but also the integrity of democratic procedures themselves.
‘Good Governance’ has become the catch-cry of the international community. In the environmental context, the ideal of good governance began to make an obvious imprint at the 1992 Earth Summit. Specifically, it was recognised that in the 1990s with the end of the Cold War — a time when the international community began to reinvigorate — sustainable development required
[g]ood management that fosters the association of effective, efficient, honest, equitable and accountable public administration ... All countries should increase their efforts to eradicate mismanagement of public and private affairs, including corruption.1
By the end of the decade, the ideal of ‘good governance’ had moved from a broadly environmental discourse, into the mainstream debates within international law. As such, the Millennium Declaration could come to stipulate that success in achieving the millennium goals depends, inter alia: “on good governance within each country. …[I]t also depends on good governance at the international level”.2 Two years later at the World Summit on Sustainable Development the signatories added that “[G]ood governance within each country and at the international level is essential for sustainable development”.3 This principle was reiterated at the 2002 International Conference on Financing for Development at Monterrey.4
The key to good governance is democracy.5 The primacy of this type of political governance over all others has taken over 2,500 years to gestate, with its roots going all the way back to Antiquity6 and Pericles with his oft-quoted definition of democracy as “power is in the hands not of a minority but of the whole people... our political life is free and open...”.7 Within modernity, the right for citizens to exist within democratic regimes is a fundamental principle of human rights and is well recognised within international law.8 Non-democratic systems are seen as the antithesis for establishing sustainable (as well as economic and social) development.9 This was confirmed at both the 1992 Earth Summit10 and the 2002 World Summit on Sustainable Development.11
The international arena is also predicated on principles that are very similar to those in democratic domestic systems. The idea that democratic systems are also fundamental to international governance has been a long time coming and anomalies exist within the architecture of the international realm.12 Nevertheless, it is increasingly accepted that democracy is the best formula at all levels, for ultimately individuals — like States — are equal to one another.13 This position is reflected in the United Nations Charter which is predicated upon the ideal of “the sovereign equality of all its Members”.14 Moreover, the purpose of the United Nations is to, inter alia, “[D]evelop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”.15
Within this rubric of sovereignty and equality, international law has evolved to link a number of inter-related ideas together as a platform for Good Governance at the international level. For example, Chapter 38 of Agenda 21 called for the documents adopted at the Earth Summit to be implemented in accordance with the “principles of universality, democracy, transparency, cost-effectiveness and accountability”.16 One decade on, the 2002 World Summit on Sustainable Development proclaimed, “within the workings of the international arena, the importance of democratic processes, accountability and transparency are foremost considerations”. 17
One of the best ways to achieve these considerations is to ensure that all countries retain independence in their actions and choices. Theoretically, this should not be too difficult as international law is largely based on the principle of equal sovereign countries acting independently. Independence includes the power of a state to control domestic affairs and make its own choices (within the limits of international law) on both domestic and foreign policy.18 Accordingly, Article 2(4) of the United Nations Charter stipulates “[A]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…”. This principle was clearly recognised in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States, in Accordance with the United Nations Charter.19 Although this Declaration strongly emphasises refraining from the use or threat of force against other countries, it nevertheless stipulates:
No state may use or encourage the use of economic, political, or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.
This principle was also recognised in the International Court of Justice case between Nicaragua and the United States, in which the Court identified a general prohibition of wrongful intervention in the domestic policies of foreign countries. Specifically, an intervention is prohibited by international law if it impinges on matters as to which each state is permitted to make decisions by itself freely: For example, choice of its own political or economic system or adoption of its own foreign policy.20
Despite this principle, it is important to note that the Nicaragua case added that the intervention must also involve an element of subversive coercion (ie the use of force). This view is largely reflected in the 1969 Vienna Convention on the Law of Treaties (VCLT) which declares treaties void, if coercion of a state by the threat or use of force was involved.21 However, the VCLT says nothing about economic types of coercion, although if the attempts involved getting another state to conclude a treaty through either corrupting or coercing one of the representatives of that State, the treaty could be considered invalid for the joining State.22 Thus the fraud conducted by the corrupt individual could invalidate the obligation of the State to any commitments made by that individual. Fraud is the pertinent word.23 Although international law is clear that it is illegal for trans-national corporations to act fraudulently24 and fraudulent acts by an international organisation can nullify that entity,25 when the undue coercion for political gain is done by a sovereign state, the issue has — until the last decade — not been addressed. As such, disputes of this nature have had to be resolved through utilisation of general international yardsticks such as those of ‘good faith’. For example, in 2001 when the issue of ‘vote buying’ was a central point of contention at the IWC, a resolution was passed (by consensus) that noted the importance of good faith, the 1970 Declaration and affirmed the application of these principles to the IWC. As such, the IWC resolution endorsed and affirmed
[t]he complete independence of sovereign countries to decide their own policies and freely participate in the IWC (and other forums) without undue interference or coercion from other sovereign countries.26
Although this Resolution was clearly well intentioned, it was restricted by the limits of the international jurisprudence available at the time. That is, although it is a clear principle of international law that and all members of the international community should act in “good faith” towards one another27 good faith is very difficult to define28 beyond the pacta sunt servanda29 rule and elements of honesty, fairness and reasonableness.30 However, this difficulty may be overcome by an evolving body of international law which has helped both to flesh out these principles and to lay down a definitive rule of what good faith is not — it is not acting corruptly.
There is a difference between the legal and non-legal definitions of corruption. The non-legal meaning of the word ‘corruption’ defines the word as: “[T]o spoil or destroy… to turn from a sound into an unsound impure condition; to cause to go bad; to make rotten”.31 Conversely, the legal definitions are much more specific, being concentrated around set activities. Thus, according to the European Civil Law Convention on Corruption32 ‘corruption’
[m]eans requesting, offering, giving or accepting, directly or indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper performance of any duty or behaviour required of the recipient of the bribe, the undue advantage or the prospect thereof.33
The problems with corruption are multifaceted. According to the various international conventions on the topic, corruption “represents a major threat to the rule of law, democracy and human rights, fairness and social justice, hinders economic development and endangers the proper and fair functioning of market economies”. 34 It “undermines good governance, … and endangers the stability of democratic institutions and the moral foundations of society”35 and “undermines the legitimacy of public institutions and strikes at society, moral order and justice, as well as at the comprehensive development of peoples”.36 The 2004 United Nations Convention Against Corruption explained that this convention was due to concern:
[a]bout the seriousness of problems and threats posed by corruption to the stability and security of societies, undermining the institutions and values of democracy, ethical values and justice and jeopardising sustainable development and the rule of law.. [and were convinced that]… corruption is no longer a local matter but a transnational phenomenon that affects all societies and economies, making international cooperation to prevent and control it essential.37
In essence, if corruption is permitted, all of the core values of good governance will be threatened.38 Due to such overt concerns and direct threats to the international community, since the 1990s, a number of international and regional agreements on corruption have been concluded because as the 2002 International Conference on Financing for Development at Monterrey recognized: “[F]ighting corruption at all levels [was] a priority”.39
In furtherance of this goal a number of international and regional documents have already been concluded. These include the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions;40 the Inter-American Convention on Corruption;41 and the European Conventions on Civil42 and Criminal Corruption.43 Additional anti-corruption objectives or interlinkages working at the international level include those issued by the World Bank,44 the International Monetary Fund45 and the World Trade Organisation.46 Finally, in 2004 the United Nations Convention on Corruption47 was concluded, following the resolution of a number of outstanding issues need such as whether it covers only governmental practice, or also includes business practice.48 This was a welcome achievement, as the importance of concluding the United Nations Convention on Corruption had been repeated a number of times at the 2002 World Summit on Sustainable Development49 and at 2003 the G8 summit.50
Democracy works by each qualified individual being given equal weight in decision-making processes. Typically, this process is concluded by the utilisation of votes through which they declare and register their opinion.51 Once a certain number of votes are obtained, the decision-making process will proceed accordingly. This process is utilised in domestic and international settings. In the latter, the general principle is that each country, no matter what its size and influence in the world, has one vote to exercise in the democratic process. Equality of voting, despite often-unequal interests in manner, is the general rule.52
Despite the obvious appeal of such practices, it has been recognised for over 2,500 years53 that the democratic process can be fragile, as unscrupulous actors who attempt to distort the outcomes of free and democratic processes may corrupt it.54 In the context of forums that decide matters by voting, one of the simplest ways that corruption can be achieved is through buying the vote of others, so that the bought vote reflects the interests of the buyer, not the free and independent decision of the person/entity that originally possessed it.55 Unfortunately, this is not just a philosophical discussion and the practice is a plague on many democratic countries.56 Due to such problems a number of countries have come to instigate specific laws that prohibit such activities.57 For example, in New Zealand, the 1996 Electoral Act lists bribery, treating (the giving of gifts) or other forms of ‘undue influence’ (such as the use of force) as “corrupt and illegal practices” if the intention of the act is to make a voter behave in any way which does not reflect the true will of the person voting.58
Manipulation of bilateral (as opposed to multilateral) overseas development assistance (ODA) is an ambiguous problem. At the end of the twentieth century, (US$) 51,521 million was distributed from the wealthy countries. Over one quarter of this (26.5%) was given as tied aid — or aid which was conditional on the fulfilment of various terms.59 A condition attached to a loan or grant sets out a requirement for action of some sort by the recipient government, without which assistance will not be granted or continued.
In general, enforced conditionality is involuntary and as such may be viewed as a simple expression of force majeure, summed up in the popular saying, that he who pays the piper, calls the tune. One view is that donors who insist on conditionality are merely flexing the financial muscles in order to achieve their own objectives without necessarily paying much heed to the interests of recipients.60 These donors have the resources which some developing country governments are desperate to obtain and this gives the donors the economic power to impose their wills. This idea of conditional ODA (or its implementation) is not new. During the Cold War, “[f]oreign economic aid [wa]s widely regarded as a weapon in the ideological war”.61
The use of conditionality has not changed since the end of the Cold War, although the purpose for which it is applied has. Through the debt crisis and the quest for development, multilateral institutions which work in areas of international economic concern, such as the World Bank and International Monetary Fund,62 have gained an unprecedented ability to influence the countries to which they lend money.63 As the leverage has become more entrenched, the conditions attached for the obtainment of finance (with an average of 56 conditions per loan)64 have moved away from the traditional objectives of commercial self-interest and the pursuit of economic orthodoxy towards broader ‘good governance’ objectives such as human rights, democracy and protection of the environment.65 Typically, the multilateral institutions and the bilateral loans are piggybacked, with mutually reinforcing conditionality. Moreover, the conditionality is often overlayed with other persuasion techniques, both complex and subtle, to achieve the desired goals of the donors.66 The success of conditionality is determined from the relationship between the donor and the recipient. The most important consideration in this relationship is “the internal characteristics of the targeted country”.67 The characteristics of democracy and transparency are important in this equation, although possibly not as much as the inverse relationship between the use of conditionality and recipient governments access to alternative sources of finance.68
Although recipient nations may sometimes resent conditional aid on the grounds that it is an invasion of their sovereignty,69 philosophically such conditionality may be justified if the overall outcome is worthwhile and the expectations of the international community are observed when it is being applied. As such, the giving of aid which is conditional on the promotion of human rights etc, is not necessarily a bad thing, as it reflects a type of world order worth aspiring to.70 Furthermore, such conditionality is further supported if it is applied in transparent manner and the direct self-interest of the donor in the outcome in minimal. This is the antithesis of a situation where a country may use its ODA to secure advantages for itself in various international fora, by manipulating vulnerable countries to vote in accordance with its wishes, or lose its ODA.
Vote buying is an extreme example of conditionality and ODA. This issue first became apparent in the late 1970s and early 1980s when a number of Arabic countries introduced a new type of conditionality to their aid. Although they could not demand that aid recipients purchase their technology or utilise their consultants, they could (and did) insist that their aid recipients support Arab issues in general, and Palestinian issues in particular at international fora.71 Unfortunately, this practice did not end there, as by the 1990s it was appearing in a number of very diverse international fora such as the International Olympic Committee (with regard to vote buying to allegedly secure Olympic Salt Lake City venue)72 UNESCO (with regard to a Japanese official allegedly obtaining the top post)73 the World Health Organisation (again, with regard to a Japanese official allegedly obtaining the top job).74
This link becomes increasingly apparent in the management of international environmental resources and has been evident for over twenty years. The first evidence of the overt manipulation of ODA appeared in 1982 in the South Pacific Forum when Japan was trying to reorganise its fishing arrangements in light of the new UNCLOS arrangements, which gave vast swathes of the ocean to coastal states.75 Although Pacific Islander leaders noted in their Communique:
[T]he importance of aid for the development of their economies, [they nevertheless] Deplore[d] the increasing tendency of distant water fishing nations to link the grant of aid with the receipt of fisheries access; and Declare[d] that distant water fishing nations should not link that aid to fisheries access agreements.76
These difficulties have been ongoing for Pacific Island countries, as they have continually experienced “the negative effects of political intervention in Japan’s aid decision-making”.77 These pressures continued in the South Pacific region, where although aid discussions have always been welcome, overlaying difficulties have always clouded issues. This has been particularly so with Japan over the driftnet controversy, and Japan’s reluctance to deal at the multilateral level (with the South Pacific Fisheries Forum Agency) with regard to access to regional fisheries. Rather, the Japanese preference has been for negotiations with individual countries.78 Moreover, it became increasingly apparent in the 1980s that recipients of Japanese aid were also meant to be supportive of Japan in international fora. This was made clear in 1987 at an Overseas Fisheries Cooperation Foundation symposium, when a Fisheries Agency representative told Pacific island states that there were at least two criteria for providing fisheries grants:
When the Japanese government selects the countries to which is provides fisheries grants, criteria include that the recipient country must have a fisheries agreement with Japan and it must take a supportive position to Japan in various international organizations.79
The Japanese Ministry of Foreign Affairs offered a different gloss on this process in 1998 with its assertion:
Japan's ODA has demonstrated a substantial measure of success, and many recipient countries and their citizens have expressed sincere gratitude for that assistance. Such sentiments have earned Japan broad support from countries in Latin America, Africa, the Asia-Pacific, and other regions, notably within the context of UN elections and other international forums.80
At this point, the lines between appreciation, coincidence and coercion inevitably begin to blur to everyone except those who were in the direct negotiations. Moreover, it is important to note that Japan has continually explained that its overseas aid programme “was not linked to voting policy”.81 Nevertheless, it is increasingly possible to assert that coercion, via manipulation of ODA, may be becoming an increasingly recognised tactic by Japan. This linkage first became apparent with the (successful) attempt to prohibit driftnets in international law,82 which Japan tried to prevent.83 It then manifested itself at the Commission for the Convention on International Trade in Endangered Species in 1994,84 199785 and 200086 where Japan has allegedly repeatedly try to manipulate the placement of endangered species on various protection lists, which restricts international trade in them.
Although such vote buying allegations have been prominent in the above instances, it is within the IWC where Japanese vote buying tactics have been most apparent. The IWC is a particularly interesting example for three reasons. Firstly, Japan has been at the forefront of the whaling debate for the last thirty years and it has invested a large amount of time and effort in achieving an outcome that is both desirable and distinctive for an aspiring world super-power. It has shown it is willing to stand in opposition to the majority of other countries, with which it normally had a very close relationship. A second point of interest with the IWC forum is that the countries which are typically linked to having their votes bought (Antigua & Barbuda, St Vincent and the Grenadines, St Lucia, Dominica, St Kitts & Nevis and Grenada) are unlikely members to actually be in the IWC, given the limited number of other international organisations in which these countries participate. Ironically, the Caribbean countries are not signatories to some very important international wildlife related conventions, such as the Convention on Migratory Species (which has 76 contracting parties)87 or the Wetlands Convention (128 contracting parties).88 Both of these Conventions are considerably cheaper to join than the IWC (as unlike other two organisations the IWC is not based on the UN scales of assessments for membership contributions). Furthermore, these international organisations (Ramsar and CMS) should be of at least equal interest to these Caribbean states as whales. This is especially so given the much smaller (40 member) IWC, which only deals with only one specific problem, of limited direct applicability to the Caribbean states, in a highly politicised environment89 Arguably, the best example of this was in 2002 at the 54th IWC meeting in Shimonoseki, where part of the aboriginal subsistence quota for indigenous groups in Russia and the United States was voted down, essentially because a quota of 50 minke would not be given to some small type coastal whaling communities in Japan (which did not fit the criteria for aboriginal subsistence whaling). Those voting against the proposal were: Antigua & Barbuda, Benin, Dominica, Gabon, Grenada, Guinea, Japan, Mongolia, Palau, Panama, St Kitts & Nevis, St Lucia, St Vincent & the Grenadines and the Solomon Islands.
Allegations of Japanese vote manipulation first surfaced during the IWC’s 1994 inter-sessional meeting on the then hotly debated Southern Ocean Sanctuary. At that meeting, four Caribbean countries — Grenada, St. Lucia, Dominica, and St. Vincent and the Grenadines — voted against the sanctuary proposal, along with the traditional opponents such as Japan and Norway.90 Speculation and media reports soon suggested that hundreds of millions of dollars were being spent to secure the votes of countries that were recipients of Japanese ODA in anticipation of IWC debates.91 Although concern with vote buying remained prominent throughout the 1990s, it was not until the end of the decade that the issue once again became front-page news. In 1999, Japan announced it was giving aid to countries that had been reluctant to join the IWC for fear of damaging ties to ‘anti-whaling’ countries, in the hope of changing the balance of votes at the Commission.92 The Japanese Vice-Minister for Fisheries added:
We would like to utilise overseas development aid as a practical means to promote nations to join [the IWC] expanding grant aid towards non-member countries which support Japan’s claim.93
In its attempt to change the balance of power at the IWC Japan pushed so hard that in 2000 the (former) Environment Minister of Dominica, Atherton Martin, resigned in protest at the “outright extortion”94 of Japan and its conditionality on its foreign aid. He explained that he was doing this because: “I am alarmed that the Japanese seem to be using the promise of aid… to manipulate [Dominica’s] voting at the IWC”.95 He went on:
They [Japan] make it clear, that if you don’t vote for them, they will reconsider the aid. They use money crudely to buy influence. Small islands are enormously vulnerable to offers of aid. Through extortion with aid, Japan has been able to get many island nations to join the International Whaling Commission and vote its way.96
The following year, a senior Japanese official partly explained this situation. Mr Masayuki Komatsu stated:
Japan does not have a military power like the United States or Australia. Unlike the United States or Australia, you may dispatch your military power to East Timor, that is not the case of Japan. Japanese means is simply diplomatic communication and ODA. So, in order to get appreciation of Japan’s position, of course it is natural that [what] we must do results on these two major truths. So I think there is nothing wrong.97
Later in the year, the Tongan Representative at the IWC explained their situation as:
When we came to the meeting, on the agenda it had whaling and Japanese grants as one item. Mixing it like that, I don’t think is the proper way of doing it. They are two separate issues.98
Such comments sparked a furore at the 2001 meeting of the IWC99 and in a number of countries. New Zealand accused Japan of “chequebook diplomacy” in the South Pacific by exploiting small and vulnerable Island states into supporting the Japanese position.100 In the British House of Commons debate, the situation was described by Mr Tony Banks. He suggested:
One of the most contemptible practices employed by the Japanese is the buying of votes in the IWC — providing development and fisheries aid to a number of countries on condition that they will vote with Japan at the IWC. I have a list here: Antigua and Barbuda, Dominica, Morocco, St Lucia, St Vincent and the Grenadines, St Kitts and Nevis, Grenada and Guinea. Two more countries — Panama and Peru — are likely to join the IWC this year as part of the Japanese vote buying strategy. Namibia and Togo are rumored to be potential IWC members, having signed fisheries agreements with the Japanese. The Government must challenge Japan and that vote buying, because if it is allowed to succeed at the IWC, it will, buy a return to whaling.101
Despite the rising interest in this debate, in 2003 the Japanese ambassador to New Zealand acknowledged his country gave aid in exchange for votes. They did this
to defend our own stances we have to persuade our friends…. We are an international player so it is very natural for the Japanese government to ask for votes… overseas aid is very good leverage so they can support our positions in general, including whaling.102
Japan’s ODA program103 grew out of an approach to economic co-operation with developing countries that Japan initiated in the 1950s. The first step towards becoming an aid donor was taken in 1952 when Japan contributed $US80,000 to the forerunner of the United Nations Development Program. This process continued throughout the 1950s as Japan made contributions towards Asian countries, especially those to which Japan had not paid reparations with regard to their wartime involvement. Japan joined the international community of donors by the forerunner of the Development Assistance Committee (which tries to effectively co-ordinate donor activities to developing countries) of the OECD in 1960.
In order to promote Japanese exports in the 1960s aid was tied to the purchases of Japanese goods and services by creating markets for Japanese goods and introducing Japanese banks and trading companies into developing countries. Starting in the 1970s, Japanese funds began to be used to build large-scale facilities for exploiting and processing raw materials in resource rich countries, such as Indonesia and Brazil, and to relocate hazardous and energy-intensive industries too offshore facilities, usually in South East Asia.104 Additional projects soon came to concentrate on supplies of materials crucial to Japanese industry, such as oil, aluminium and pulp. In terms of Pacific Island nations aid, this has largely been used as a tool to secure access grounds for Japanese fleets.105
In 1989 it emerged that Japan’s foreign aid budget was the largest in the world. By 1998, Japan was giving US$10,683 million annually. This was the equivalent of 0.28% of GNP (the global average is 0.23) or US$85 on a per-capita basis (the global average is US$63). In terms of volume, this makes Japan the largest contributor.106 In 2000, due to the prolonged recession, the outlook for Japan’s aid programme was deemed ‘pessimistic’.107 Although the aid budget was cut by 10% in 1998 the anticipated cut in the 1999 aid budget was avoided. Overall, the net disbursement of aid has been in decline since 1996.108
Japan gives 46.8% of its aid to low-income countries: an average income per-capita of less than US$2 per day. This is a lower percentage than 16 other donors, which reflect a global average of 50.7%. This percentage is a reflection of the strong focus of Japanese aid in Asia (48.6% to the Far East, and 20.1% to South Asia). As such, places like Oceania only receive 2.0%.109 Despite this small percentage going to Oceania, Japanese aid still remains very influential in this area. This influence began in 1987 with the Kuranari Doctrine, when ODA was doubled to the region.110 This sudden increase in Japanese interest in the region coincided with the sudden growth in power of small island states following the conclusion of the UNCLOS Convention (see above). In addition, a ‘security burden’ which accompanied the Cold War (making sure that Soviet aid to the region was minimalised) meant that Japan quickly became the largest or second-largest donor to the region. This position became more pronounced with the end of the Cold war, and the United States and the United Kingdom scaled down their ODA in the region. A common characteristic of most Pacific island states is the important role of aid in their economies. The ratio of aid to GDP is more than 20% for many countries and for some countries, such as Tuvalu, the ratio is as high as 70-80%. This reflects the small export base of many of these countries and low levels of domestic savings. Fiji, with a relatively large export base and higher savings rate, has an aid to GDP ratio of only 5%.111
In tandem with the vast amounts of ODA that Japan provides, is the Japanese vision of their foreign assistance. The essence of this vision has been tied to moving away from the idea of traditional forms of ‘strategic’ aid (due to their historical legacy in World War II) and moving towards one which provides a ‘positive’ international profile for Japan or as the Ministry of Foreign Affairs suggests, “an honored place in international society”.112 As such “ODA is a vehicle through which Japan strives to cultivate a sound international environment and promote ties of good will”.113 Historically, Japan has largely lived up this objective, as its ODA has been, as a rule, less ideologically driven114 compared to that of many comparable donors.115 The emphasis on good will, and the expansion into an apparently very admirable ODA policy increased in the late 1980s and early 1990s when Japan was at the forefront of the primary international donors who issued a wave of public statements indicating that their aid programs would reflect a broadened concept of development.116 The core of the Japanese vision is clearly articulated in Japan’s 1992 Official Development Assistance Charter,117 which includes the promotion of environmental conservation, the pursuit of democracy and human rights.118 Japan has fulfilled many of these objectives, and deserves special merit for its policy of not allowing their ODA to be applied toward military use or the promotion of international conflict.119 However, it is important to note that the Charter also promises that:
Japan’s ODA will be provided in accordance with the principles of the United Nations Charter (especially those of sovereign equality and non-intervention in domestic matters).120
Despite the admirable vision of Japan’s ODA, it has been, according to the Ministry of Foreign Affairs:
[A] target of serious criticism. In particular, Japanese ODA principles have been described as ambiguous, and the projects in some instances have been rated as ineffective, lacking in technical assistance or other ‘soft’ expertise-orientated aspects, or insufficient in terms of attention to local environmental factors or the needs of local residents…. Though some of the criticisms aimed at Japanese ODA happen to be erroneous, others nonetheless contain a truth and should be heeded if Japan is to improve the quality of its ODA programs.121
Overt corruption scandals aside,122 a good example of the difficulties of Japanese ODA can be found in Japan’s (substantial)123 ODA which is utilized for environmental purposes. Within this broad portfolio, which began within Japan’s various aid related ministries in the mid 1980s, some notable results have been achieved, such as withdrawing their funding from the Sardar Sarovar dam on India’s Narmada river.124 Nevertheless, in spite of a large degree of rhetoric to the contrary, parts of Japan’s record with environmental aid have been problematic. The problems have arisen from within the auspice of aid, sending debatable pesticides to third world countries,125 creating a detrimental impact within tropical forests,126 and funding heavy polluting industries in the Third World.127 With such a record it has been suggested that the only sustainability that Japan thinks of when allocating aid, is sustaining its own interests.128
The question that arises in relation to these issues, in addition to the vote buying allegations, is how this could happen with Japan’s ODA when they have such strong background principles? The answer to this may be two fold, and both answers relate to the same concern — the ability for rogue actors to act independently if they so desire. That is, if we take the Charter and repeated pronouncements by Japan on ODA seriously, vote buying is clearly something they would not tolerate. Nevertheless, it may be that unscrupulous actors within the Japanese bureaucracy have alternative views of this matter. However, until two problems are addressed within Japan on this question, it may be impossible to confront this issue.
The first problem relates to the possibility that ODA may be distributed via multilateral or bilateral means. If it goes through multilateral institutions, such as the World Bank, then that forum (not Japan) controls the distribution. If it is done bilaterally, then the donor retains the control. Japan clearly prefers the bilateral option, as opposed to multilateral ones or those based upon common and like treatment129 or multilateral ODA management schemes.130 Despite this preference, Japan is only slightly above the global average for bilateral as opposed to multilateral aid (70% of Japan’s aid is bilateral, whereas the global average is 66.9%).131 Moreover, Japan has reported that (unlike much of the recent history of its contemporaries) none of its bilateral aid commitments is tied to the purchase of goods and services from Japan.132 As such, any analysis of the bilateral pressure applied with ODA needs to be more sophisticated than seeking simple linear relationships with Japanese ODA, and rather see it as part of the ‘totality of relations’133 with recipient nations.
The second part of the problem is the somewhat unique position that within Japan’s overall ODA schema there is no strong common or co-ordinating structure. As such, Japan’s ODA administration lacks unified or coherent authority over programmes. It also lacks forceful laws governing it. Japanese citizens groups and opposition parties in the Diet have tried for more than three decades to enact a ‘basic ODA law’ to create a centralized ministry and bring strong co-ordination to the system. As such, unlike other developed countries that are part of the DAC, Japan “has no defined political structure for aid but relies on a dispersed administrative pattern to delineate political relationships”.134 Efforts to create such a law (such as the U.S Foreign Assistance Act)135 have repeatedly failed, apparently because of opposition from the bureaucracy. The lack of a unified development assistance structure creates a lack of coordination and, allegedly, even breeds unproductive competition between different branches of the bureaucracy.136 As it stands, it appears that the four primary ministries (Foreign Affairs, Finance, International Trade and Industry, and the Economic Planning Agency), complemented by the implementing arms of the Overseas Economic Cooperation Fund (OECF) and the Japan International Cooperation Agency represent a labyrinth of interests and objectives which are not always in consensus. Indeed, it has been contended that conflict within government bureaucracy can skew the good overall intentions.137
The possible conflict of interests becomes even more pronounced when the close relationship between private sector, governmental bureaucracy and government actors becomes apparent in their attempts to advance strategic economic interests through ODA. These “grey areas” often compliment other aspects of Japanese political and economic development.138 As such, although there have been formal attempts to untie aid from the commercial sector, questions have been asked over how successful this objective has been.139 These questions remain pertinent as Japan’s ODA is far below the DAC average in most sectors possibly relating to basic human needs, while retaining a somewhat ‘commercial’ flavour,140 the impetus “ from the business community to retie aid” is increasing.141
Conditionality and ODA can be divided into two areas. The first may be termed political conditionality, in which the ODA is linked to a certain political outcome. The process of vote buying is an exemplar of this practice. The second type may be termed commercial conditionality. This is typically whereby a donor links their ODA to the demand that certain conditions, such as the purchase of the donor’s goods with the ODA is part of the deal. This type of commercial conditionality has resulted in linkages been made to both countries which do not need financial assistance, because they are far from what may be considered in economic need, and/or the direction of ODA into projects which are far from what the real basic needs of the recipients actually are.142
The international community has been struggling for over five decades to reduce the tying of aid.143 Of late some progress has finally been achieved, with regard to attempts to begin controlling the influence of commercial conditionality within ODA. This process began in 1998 when the G8 promised to begin “work within the OECD on a recommendation on untying aid to the least developed countries”.144 This process to untie bilateral ODA “to the greatest extent possible”145 has been buttressed by other developments in which aid has been tied to specific – worthwhile – objectives, such as basic education, health and local environmental protection. With the latter practice, after a decade long debate, it has been prima facie agreed that a certain percentage of aid for Least Developed Countries is to be directed strictly towards their ‘basic needs’.146
Unlike unacceptable commercial conditionality attached to ODA, the international community has not yet directly addressed the issue of unacceptable political conditionality attached to ODA. This is not to suggest that all political conditionality is necessarily a bad thing. For example, ODA linked to improved human rights records is commendable. However, ODA linked to the subversion of good governance, democratic procedures and the furtherance of corrupt practices is not. This is ironic, for as seen in the above sections, a vast amount of effort is currently being directed towards the furtherance of two inter-related goals at the international level — ‘good governance’ and the prohibition of corruption. As yet, a strong linkage between good governance, corruption and ODA with political conditions attached has not yet been made secure. Rather, as shown above, the emphasis is upon the amorphous ideals of ‘good faith’ in international negotiations. This is clearly not sufficient, as the practice of vote buying has not weakened despite the clear articulation of these principles in the forums that are affected by the problem.
With such background issues in mind, the question now becomes: where to from here? The answer to this question is in three parts. Firstly, the problem of vote buying should be unequivocally rejected by the international community at the highest levels due to its being the antithesis of good governance, democracy and attempts to confront corruption.
Secondly, it is necessary to invoke suitable mechanisms to deter this practice. With regard to the necessity of actual deterrence it is important to recognise that resolution of vote buying problems, as with resolution of corruption problems is going to have to be primarily sovereign based. This is due to two reasons. Firstly, in an ideal world, bi-lateral assistance would give way to equitable, efficient and transparent multilateral assistance in which all ODA would be channelled through appropriate international organisations such as the World Bank or the Global Environment Facility. Aside from the surmountable difficulties of these organisations147 the hope that countries will voluntarily do away with the influence that their bi-lateral ODA programmes give them is hopelessly utopian. As such, it is important to be realistic and accept that bilateral assistance is likely to remain a forthright feature of ODA for the foreseeable future. Secondly, the issue of vote buying will be dealt with in a primarily domestic setting because as the current Conventions on corruption are increasingly concluding, that although extradition of offenders may be facilitated and international assistance forthcoming, ultimately, the issues of corruption will not to be settled by some international forum. Rather, will be dealt with by the sovereign states who have committed themselves to confront the problem.148
Finally, a suitable method is going to have to be adopted within international institutions that are typically the battleground for such debates between the international recognition of the problem and the direct domestic confrontation of the difficulties. At this ‘middle level’ it would be useful to proceed on the assumption that those who are willing to subvert the objectives of good governance, democratic procedures and the fight against corruption should not be allowed to participate in the forums they are seeking to distort.
* LLB, LLM (Hons)(Auckland). PhD (Nottingham). Professor, School of Law, University of Waikato New Zealand. Alexander Gillespie is the 2004 NZ Law Foundation International Research Fellow. This paper was supported by the ASMS – the Swiss Working Group for the Protection of Marine Mammals <www.asms-swiss.ch>.
1 Agenda 21, Chapter II, Para 32.
2 United Nations Millennium Declaration A/res/55/2, para 13.
3 WSSD. Plan of Implementation. Para 4. See also paras 120bis & 123.
4 International Conference on Financing for Development (Monterrey, 2002) A/CONF/198/11. Para 11.
5 Democracy may be defined as: “Government by the people, that form of government in which the sovereign power resides in the people as a whole and is exercised either directly by them of by officers elected by them”. The Compact Oxford English Dictionary (Oxford University Press, 1988) 410.
6 For a full discussion of this area, see A Gillespie ‘Ideas of Human Rights in Antiquity’ 17:3 Netherlands Quarterly of Human Rights (1999) 233-258.
7 Pericles, In Thycydides, A History of the Peloponnesian War. (Penguin Classics, Harmondsworth. 1954) II 37.3.
8 See Article 21 of the Universal Declaration of Human Rights. UNGA Res. 217 A (III), 10 December 1948. See also Article 25 of the International Covenant on Civil and Political Rights. UNGA Res. 2200 A (XXI), 16 December 1966. The importance of democracy has been reinforced by the United Nations following the end of the Cold War. through its Support of the Efforts of Governments to Promote and Consolidate New or Restored Democracies. See documents, UNGA. Doc A/49/713, 23 November 1994. & UNGA. Doc A/52/334, 11 September 1997.
9 See A Gillespie, The Illusion of Progress: Unsustainable Development in International Law and Policy, (Earthscan, London 2001) Chapter 1.
10 Rio Declaration. Principle 6.
11 WSSD. Plan of Implementation, 120.bis.
12 Such as the Security Council and some of the Bretton Woods Institutions. See Gillespie, above, Chapter 10.
13 “[A]ll nations too are by nature equal the one to the other”. C Wolff, Jus Gentium Methodo Scientifica Pertractatum, Prolegomena, (1749) para 16. This volume is available from the Carnegie Series on International Law.
14 United Nations Charter, Article 2 (1).
15 United Nations Charter, Article 1. (2).
16 Agenda 21, Chapter 38, Para 2.
17 World Summit on Sustainable Development. Political Declaration. Para 31 and: “To achieve our goals of sustainable development, we need more effective, democratic and accountable international and multilateral institutions”. For the importance of transparency see paras 123 & 125 of the Plan of Implementation.
18 See I Shearer, Starke’s International Law (11th Ed. Butterworths, London, 1999) 91. M Shaw, International Law (Grotius, Cambridge, 1999) 152-153.
19 GA Res. 2625 (XXV). October 24 1970, Adopted by consensus.
20 Nicaragua v United States of America, ICJ (1986) 14.
21 See article 52 of the Vienna Convention of the Law of Treaties. Reprinted in M Evans, International Law Documents (Blackwell, London, 2001) 168.
22 See article 50 & 51 of the Vienna Convention of the Law of Treaties. Reprinted in Evans, ibid. 168.
23 The word pertains to the usage of a dishonest act or trick to gain an unjust advantage. It is also used in connection with a person or thing not fulfilling what is expected of it. The Oxford Concise Dictionary. (Oxford University Press, Oxford) 466.
24 See World Bank, World Bank Debars Five Firms. Press Release No.2000/081/S. The movement to stop corruption in international society is one of the more promising areas in this arena. In 1997, the Combating Bribery of Foreign Public Officials in International Business Transactions was agreed by the OECD. For some general discussions of corruption, see the special edition of Third World Quarterly, 20 (1999) 485-645.
25 See B Cheng, General Principles of Law As Applied by International Courts and Tribunals (Grotius, Cambridge 1987) 358-360.
26 Resolution on Transparency Within the IWC, IWC 53rd Report (2002) 54.
27 Article 2(2) of the UN Charter.
28 See the Nuclear Tests Case ICJ. (1974) 253.
29 The rule that agreements and stipulations, especially those in treaties, must be observed. See R Garner, Black’s Law Dictionary (Seventh Edition, Liber, New York, 1994) 1133.
30 See J O’Connor, Good Faith in International Law (Dartmore, London, 1991) 117-125.
31 The Compact Oxford English Dictionary, above n5, 341.
32 Civil Law Convention on Corruption. Strasbourg, 4.XI.1999. ETS 174. Article 2.
33 The Inter American Convention Against Corruption worked around the similar idea of bribery or other rewards but restricted the setting to governmental or public officials. 1996 Inter American Convention Against Corruption. See Article 5.
34 European Civil Law Convention on Corruption Strasbourg, 4.XI.1999. ETS 174.
35 Criminal Law Convention on Corruption. Strasbourg, 27.I.1999. ETS. 173. Preamble.
36 Inter American Convention on Corruption. Preamble.
37 United Nations Convention Against Corruption. 43 International Legal Materials 37 (2004) . Preamble, paras 1 & 4.
38 “[E]thical principles, such as, inter alia, the general objective of good governance, the principles of fairness and equality before the law, the need for transparency in the management of public affairs and the need to safeguard integrity.” Revised Draft United Nations Convention Against Corruption. A/AC.261/3/Rev.4. Preamble, para 9.
39 International Conference on Financing for Development (Monterrey, 2002). A/CONF/198/11. Para 13.
40 OECD Convention, see: <http://www.oecd.org/department/0,2688,en_2649_34859_1_1_1_1_1,00.html> .
41 Inter American Convention. See <http://www.oas.org.juridico/english/Treaties/b-58.html> .
42 European Convention, above n32.
43 European Convention, above n35.
44 See: <http://www1.worldbank.org/publicsector/anticorrupt/supporting.htm> .
45 See: <http://www.imf.org/external/pubs/ft/exrp/govern/govindex.htm> .
46 See: <http://www.wto.org/english/res_e/doload_e/reser_e/ae9902_e.htm> .
47 United Nations Convention Against Corruption. 43 International Legal Materials 37 (2004).
48 B Davis, ‘US, Europe Disagree On Aspects of Treaty’ Wall Street Journal. June 12, 2003.
49 See the Political Declaration, and paras 122 (e) & 124 of the Plan of Implementation.
50 G8. (2003). ‘Fighting Corruption and Improving Transparency: A G8 Declaration.’ Available from <http://www.g7.utoronto.ca/summit/2003evian/corruption_en.html> .
51 The Compact Oxford English Dictionary, above n5 2251.
52 Although certain exceptions exist with weighted voting. See N Schermers, International Institutional Law (Nijhoff, London, 1995) 518-527. N White, The Law of International Organisations (Manchester University Press, Manchester, 1996) 72-76.
53 See J Roberts, Athens on Trial: The Antidemocratic Tradition in Western Thought (Princeton University Press, New Jersey, 1994) 56, 64, 88.
54 As Hannah Arendt recognised, this reflects a corruption not on part of the process, but those at the top who are able and willing to manipulate their position. H Arendt, On Revolution (Viking, New York, 1963) 238-42.
55 See B Berelson, et al, Voting (University of Chicago Press, Chicago1954) 306-307.
56 See J Hyland, Democratic Theory: The Philosophical Foundations (Manchester University Press, Manchester, 1995) 240.
57 R Hasen, ‘Vote Buying’, (2000) 88 California Law Review 1323; P Carlan, ‘Elections and Change Under Voting with Dollars’ (2003) 91 California Law Review 705; L Diamond, ‘Consolidating Democracy in the Americas’ (1997) 550 Annals (of the American Academy of Political and Social Science)12.
58 See Electoral Act 1996. Reprinted Statutes of New Zealand, Volume 35. 39-279, Section 218-230.
59 Independent Review of Poverty Reduction and Development Assistance, The Reality of Aid (Earthscan, London, 2000) 3. A condition, according to the Oxford English Dictionary, is ‘something demanded or required as a prerequisite to the granting or performance of something else, a stipulation’.
60 For example, although tied aid may marginally benefit the countries that insist on the purchases of their products, it may be detrimental to the interests of the recipients. For example, one survey in Kenya found more than 16 different types of water pumps, each from a different donor. This not only makes a co-ordinated programme of replacements and spares difficult, it has also resulted in Kenya being locked long-term into a number of programmes which are neither the cheapest, nor in the best interests of specific Kenyan requirements. N Baird, ‘Tied to the Hand that Feeds’ (October 12 1996) New Scientist 12-13. Moreover, tied aid typically costs 20-25% more for goods or services than if they were subject to international competition. See OECD. (2001). ‘DAC Reaches Agreement on Untying Aid’, <http://webnet1.oecd.org/oecd/page … /0,3380,EN-document-notheme-2-no-20-5559-0,00.htm> .
61 M Freeman, Foreign Economic Aid: Means and Objectives (Hoover Institute, Stanford University, 1995) 1.
62 Gillespie, (2001), above, Chapters 1 & 3.
63 T Killick, (1998) Aid and the Political Economy of Policy Change (Routledge, London, 1998) 5.
64 Killick, ibid. 2.
65 See A Hewitt, & T Killick, ‘Bilateral Aid Conditionality: A First View’ in O Stokke, (ed), Foreign Aid Toward the Year 2000 (Cass, London, 1996) 21-36.
66 J Nelson, (1993) Global Goals, Contentious Means: Issues of Multiple Aid Conditionality (Overseas Development Council, Washington) 30-34.
67 Nelson, ibid. 65.
68 Killick, above n63, 12.
69 Nelson, above n66, 24-25.
70 According to Killick, the justification of conditionality “stands or falls on its ability to improve policies within recipient countries.” Killick, above n63, 17.
71 Z Sardar, ‘How Good Is Arab Aid for the Third World ?’ (October 22,1981) New Scientist 233.
72 See Sportserver IOC Looking Into Vote buying Case (2001) <http://www.sportserver.com/olympics/story/6843p-219339c.html> .
73 See T Deen, ‘Japan Battles for Big Power Status at the UN’ (July 18, 2000) Asia Times. Also available from <http://www.globalpolicy.org/security/reform/japan.htm> . Also, B Giudice, ‘New UNESCO Chief Pledges Radical Steps to Reform’ (1999). <http://www1.worldbank.org/education/tertiary/news_archive/1203b9.html> .
74 See Centre for UN Management Accountability 50 Years of the WHO: Successes and Failure (September 7, 1998). <http://www.cunma.com/press_articles/who_successes.htm> .
75 The main concern of the leaders was that linking aid with access denied countries a fair return to their EEZs. But the weak position of the Pacific Island states, most of which could not a loss of aid or access fees, meant that the practice of linking aid and access continued. See S Tarte, Japan’s Aid Diplomacy and the Pacific Islands (Australian National University, Canberra, 1998) Chapter 4, 96.
76 South Pacific Forum Communique, 1982. Available from the Ministry of Foreign Affairs, New Zealand.
77 Tarte, above n74, 15. Tarte goes on: “On one level this refers to the use of aid to threaten, punish or cajole states. All countries in the region, from the largest (Papua New Guinea) to the smallest (Tuvalu) have at times experienced these pressures”.
78 See South Pacific Forum Communique. 1990. Vanuatu. July 31-August 1. 64-65. South Pacific Forum Communique. 1988. Tonga. September 20-21. 50, 56. South Pacific Forum Communique. (1987). Samoa. May 29-30.
79 Overseas Fisheries Cooperation Foundation Conference Report: Symposium on South Pacific Fisheries Development (1987), Tokyo, 93.
80 Japanese Ministry of Foreign Affairs, ODA Summary: 1998. This is available from <http://www.mofa.go.jp/policy/oda/summary/1998/1.html> .
81 IWC, 50th Report (1999) 40.
82 A Gillespie, (2002) ‘Wasting the Oceans: Bycatch in International Law’ International Journal of Marine and Coastal Law, 17(2): 161-193.
83 See The Fiji Times, July 3, 1989, 11. This example is cited by A Wright, ‘Driftnet Fishing in the South Pacific’ (September 1991) Marine Policy 303-37.
84 In the lead-up to the tenth CITES meeting in Florida in 1994 an attempt was made to include the Atlantic Bluefin Tuna in Appendix Two of CITES. This would have severely restricted the trade in this species, which Japan has a strong commercial interest in. The proposal came from Kenya. However, Kenya later agreed to withdraw its proposal before the meeting, after representations from the Japan Fisheries Agency “through diplomatic channels”. See FFA News Digest No5/94, September/October 1994, 2. This is noted in Tarte, above n75, 148.
85 P Brown, ‘Japanese Bribes Threaten Wildlife’ (June 15, 1997) Guardian Weekly 4; B Dickson, ‘CITES in Harare: A Review of the Tenth Conference of the Parties’ (1997) Colorado Journal of International Environmental Law and Policy 55; P Brown, ‘Japanese Bribes Threaten Wildlife’ (June 17, 1997), International News.
86 Anon, ‘Note: The CITES Fort Lauderdale Criteria’ (2001) 114 Harvard Law Review 1769.
87 CMS. Parties to the CMS. <http:/www.wcmc.org.uk/cms/part_lst.htm>.
88 RAMSAR. Contracting Parties to the RAMSAR. <http://www.ramsar.org/key_cp_e.htm> .
89 For example, in 1982, in the Aboriginal Subsistence Whaling Committee Saint Vincent reported that three whales were taken at Bequia. IWC. 33rd Report. (1983). 29. In 1983, the IWC requested more detailed co-operation from St Vincent due to a number of “outstanding infractions”. IWC. 34th Report (1984) 15. Since this time, there have been 13 infractions since 1983. In response to these, there have been six excuses. These are:
“[A]ny infractions that did occur took place outside territorial waters”. IWC. 36th Report (1986) 13.
“[B]y establishing the existence of an aboriginal subsistence hunt, and by obtaining a very modest quota, the Government will be able to cure these infractions in the future”. IWC. 37th Report (1987)19.
“[N]o attempt is being made to improve the methods used in the hunt because the Government does not wish to encourage its continuation”. IWC. 40th Report (1990) 30-31.
“[T]he phasing out of whaling would take place naturally as the single harpooner was 67 years of age”. IWC. 39th Report (1989) 22.
The infractions happened because it was a very small fishery in a remote location. IWC. 44th Report (1994)15.
“[T]he relationship between the cow and calf... are not clearly defined in the schedule”. IWC. 50th Report. (1999) 14. Nevertheless, the seventh infraction included yet another humpback cow and calf. IWC. 52nd Report (2001)14.
90 P Brown, ‘Sanctuary for Whales Proposal Gets Support’ (Feb. 28, 1993) Gazette (Montreal) B8. See also The Japan Times (May 14, 1993) 1,2. Noted in Tarte, above n75, 140.
91 See D Caron, ‘Current Development: The International Whaling Commission And The North Atlantic Marine Mammal Commission: The Institutional Risks Of Coercion In Consensual Structures’ (1995) 89 American Journal of International Law 154. For alleged latter figures involved, see Anon, ‘Stop Japan’s Return to Full Blown Whaling’ (2002) 32 (2) Ecologist 19.
92 The Editors, ‘Japan Urges Support for Whaling’ (May 13, 1999) The Observer.
93 See P Brown, ‘Japan Admits Using Aid to Build Pro-Whaling Vote’ (November 11, 1999) Guardian International.
94 R Whymant, ‘Whaling Extortion Denounced’ (August 14, 2000) The Times (UK). This is also available from <http://www.transparency.org/sourcebook/17.sidebards.html> .
95 Noted in R Parry, ‘Japan Admits Aid Deals Buy Support for Whaling’ (July 19, 2001) Independent.
96 Martin, noted in A Browne, ‘Dirty Deals: Whales Lose Out in Japan’s Fight For Votes’ (May 13, 2001) Observer. See also “Buying Votes for Dominica”. <http://news.bbc.co.uk/hi/english/events/newsnight/newsid_994000/994511.stm> .
97 This was originally reported in a radio interview of July 18,2001. It was later reported in the Independent. July 19 2001. See also A Browne, ‘Global Ban on Whaling Faces Its Severest Test’ (July 26, 2001) Guardian Weekly and Editorial ‘Bloody Whaling’ in the same edition.
98 Mr Samiu Vaipulu, as reported in ‘War of the Whales’ 60 Minutes ( September 24 2001).
99 See M McCarthy, Battle Over Vast Whale Sanctuary In Pacific; Conservation Anti-Whaling Nations Need The Support Of Caribbean States In A Crucial Vote On A Proposal To Protect Nine Species From Hunters’ (May 8, 2001) Independent 7; A Browne, ‘Aid Harpoons Votes For Slaughter’ (May 22, 2001) Observer/ NZ Herald B2
100 See NZPA ‘PM Slates Japan’s ‘Deplorable’ Stand on Whaling’ Dominion Post (Jan 19 2003).
101 T Banks, House of Commons Hansards Debates, Column 306WH (July 1, 2001). Available from <http://www.parliament.the-stationery-office.co.uk/pa/cm200102/cmhansrd/ … /1071h05.ht> .
102 Masaki Saito, quoted in NZPA ‘Japan Uses Aid to Buy Whaling Support, Ambassador Says’ (July 24, 2003) Dominion Post.
103 Japan has three types of aid: Grant aid (no obligation to repay), technical assistance and yen loans (loans at soft interest rates). Aid for fisheries is typically within the grant aid section. R Orr, ‘Japan’s Foreign Aid Power’ Columbia University Press (Columbia, 1990) 30.
104 See W Brooks, ‘Japan’s Foreign Economic Assistance’ (1985) 25(3) Asian Survey 324.
105 R Orr, ‘The Rising Sun: Japan’s Foreign Aid to ASEAN, the Pacific Basin and Korea’ (1987) 41 (1) Journal of International Affairs 45.
106 That is in terms of volume, not in terms of percentage of GDP). Independent Review, above n59. 3, 57. The highpoint of the GDP ratio was 0.35 in 1984.
107 Independent Review, above n59, 54-55.
108 Independent Review, above n59, 54.
109 Independent Review, above n59, 3 &56.
110 In 1987 the Foreign Minister of Japan, Tadashi Kuranari, visited the Fiji capital of Suva and announced a new beginning in the relationship between Japan and the Pacific Island countries. The centerpiece of the Kuranari speech was a declaration that Japan would double its official development assistance to the region. For a discussion of this, see Tarte, above n76, 1.
111 Tarte, above n75, 2 & 96.
112 Ministry of Foreign Affairs of Japan, Council on ODA Reforms for the 21st Century, Final Report (1998) <http://www.mofa.go.jp/policy/oda/reform/report21.html> . At 2. At 26, they add: “ODA in spirit and practice is an expression of Japan’s will, ability, and character as a member of th[e] international community”.
113 Ministry of Foreign Affairs of Japan, Council on ODA Reforms for the 21st Century, Final Report, ibid.
114 Although Japan has a long, continuing history of using its ODA to secure its necessary resources)Resource security (such as food supply) remains a predominant objective for Japan’s ODA. In many ways, Japan’s aid diplomacy has been “extremely successful” in achieving this and other goals. W Nester, ‘The Third World In Japanese Foreign Policy’ in K Newland, (ed) The International Relations of Japan (Macmillan, London, 1990) 71, 97. Japan appears to have first used aid strategically in the early 1970s in the wake of the OPEC oil crisis. At this point Japan used aid as a ‘diplomatic weapon’ to placate Arab anger over Japanese compliance with US policy in the Middle Eastern region. The mission brought $3 billion in aid pledges to oil producing nations and a ‘distancing’ policy toward Israel. See M Yoshitsu, Caught In the Middle East: Japan’s Diplomacy in Transition (Lexington Books, Massachusetts 1984) 7.
115 For discussion, see Orr, above n103, 57-59.
116 “Japan has traditionally been guided by a set of ODA policies that placed primary emphasis on economic development while maintaining a cautious stance about the attachment of political strings. However, in the aftermath of the Cold War… this particular feature of ODA policy has been changing”. Ministry of Foreign Affairs of Japan (1998) above n112, 6.
117 Official Development Assistance Charter, 1992. Cabinet Decision June 30. This is available from <http://www.mofa.go.jp/policy/oda/summary/1999/ref1.htm> l.
118 Charter, ibid. Section 2, Principles.
119 See J Inada, ‘Japan’s Aid Diplomacy’ (1990) in Newland, above n114, 100-20. Japan has utilized its aid to pressure both India and Pakistan to sign the Non-Proliferation Treaty, and in 1991, Japan announced it was suspending all its aid to North Korea until it dismantled a plutonium processing plant. See Nelson, above n 66, 110-111.
120 Charter, above n117, section 2, Principles.
121 Ministry of Foreign Affairs of Japan (1998) above n112, 7.
122 In 1986, a JICA (Japanese International Cooperation Agency) official was arrested for being involved in a 700,000 yen bribe in relation to an agricultural project in Morocco. The bribe came from a private firm official with a distinctly overlapping interest in the delivery of Japanese aid in this sector. It has been suggested that the fault in this instance was more in being indiscrete about the incident, and getting caught. In the same year, allegations were raised that Japanese aid funds were misused by the Marcos Administration in the Philippines. When questioned about this, the Director General of the Economic Planning Agency said that Japanese funding is: “[L]ike money a husband gives to a wife for shopping – the husband can’t know where the wife spends it” This story is told in R A Forrest ‘Japanese Aid and the Environment’ (1991) 21(1) Ecologist 24, 28. See also Orr, above n103, 42.
123 At the 1992 Earth Summit, Japan announced it would increase its environmental aid to between 900-1000 billion yen for the period of 1992-1996. In 1998, with regard to the Kyoto Protocol alone, Japan funded ODA projects amounting to 243.3 billion yen. See Annual Report of Japan’s ODA: 1999. Available from <http://www.mofa.go.jp/policy/oda/summary/1999/ref2_02.html Footnotes 14 & 15> .
124 See R Forrest & Y Harago, Japan’s ODA and Tropical Forests, WWF, London (1990).
125 See P Hadfield ‘Japanese Aid May Upset Cambodia’s Harvests’ (March 13, 1993) New Scientist 5.
126 See Forrest, above n122, 30-32.
127 Anon, ‘Japanese Business Counts the Cost of Aid Projects’ (August 11, 1990) New Scientist 9.
128 See M Cross, ‘Tokyo Nods Its Head Toward the Environment’ (September 16,1989) New Scientist 6.
129 Tarte, above n75, 2 &105.
130 For example, at the Earth Summit in 1992, as the Global Environmental Facility agreement was being concluded, with the objective of channelling environmental aid on issues of international concern through more balanced intermediaries (initially the World Bank, but later a balanced board with an equal split of developed and developing countries) who would effectively control the aid for clear and transparent purposes, Japan warned that it preferred the bilateral approach, and may try to bypass any overseeing multilateral institutions. F Pearce, ‘Japan’s Billions May Bypass World Bank’ (June 13, 1992) New Scientist 4.
131 Independent Review, above n59, 3 &56.
132 This is unlike many other countries. Indeed, just over a quarter of DAC bilateral aid (26.5%) is given on the condition that it is used only to purchase goods and services from the donor country. This excludes technical cooperation which is mostly tied to services from the donor and which amounted to 40% of bilateral aid in 1997. Independent Review, above n59, 4 & 56.
133 A Rix, Japan’s Foreign Aid Challenge: Policy Reform and Aid Leadership (Routledge, London 1993)176.
134 Rix, ibid. 84.
135 For a copy of the 1961 US Foreign Assistance Act, and discussions of its implementation, see <http://www.usaid.gov/about/usaidhist.html#foreign> .
136 Forrest, above n124, 28.
137 Orr, above n103, 3, 19-52, 138-141. A Rix, Japan’s Economic Aid (St Martins, London, 1980)12-15.
138 Orr, above n103, 64. Forrest, above n122, 26-28.
139 Orr, above n103, 65-68.
140 For Japan, building economic infrastructure, rather than poverty alleviation is the mainstream of its aid allocation. This emphasis is achieved in an ever increasing call to achieve a ‘balance’ between poverty elimination and economic growth. Independent Review, above n59, 55.
141 Independent Review, above n59, 55.
142 See Gillespie, (2001) above, Chapter 10.
143 See OECD,. The Story of Official Development Assistance. (Paris, 1996) 14, 22, 57-58. Agenda 21, A/CONF 187/26 (Volume III), 14 August 1992.
144 G8 (1988) Communiqué, Birmingham. Available from <http://www.g7.utoronto.ca/g7/summit/1998birmingham/finalcom.htm> . G8 (2000) Communiqué, Okinawa. Available from <http://www.g7.utoronto.ca/g7/summit/2000okinawa/finalcom.htm> .
145 2001 OECD DAC recommendation on Untying ODA to the Least Developed Countries. This is available from <http://webnet1.oecd.org/oecd/page … /0,3380,EN-document-notheme-2-no-20-5559-0,00.htm> See principle 2. Note, as well as only being targeted at the Least Developed Countries, it also excludes food aid and ‘investment related technical co-operation’.
146 Final Outcome of the International Conference on Financing for Development. (Monterrey). A/CONF/198. March 1, 2002. Para 43. World Summit on Sustainable Development. Plan of Implementation. Para 79 (a).
147 See Gillespie, above n9, Chapter 1.
148 Revised Draft United Nations Convention Against Corruption. A/AC.261/3/Rev.4. Article 4.
Good Governance, Corruption and Vote Buying
New Zealand Yearbook of International Law