The Natural Law Basis of Legal Obligation: International Antitrust and OPEC in Context
Moore, Joel Brandon, Vanderbilt Journal of Transnational Law
Our Business is, to declare, how, chiefly for the Direction of the Will, a certain Kind of Attributes have been impos'd on Things, and their natural Motions; whence there springs up a peculiar Agreement and Conveniency in the Actions of Mankind, a grateful Order and Comeliness for the Ornament of human Life. (1)
The Organization of the Petroleum Exporting Countries (OPEC) stabilizes petroleum prices to promote the economic prosperity of its member nations for which oil is a substantial export. Price stabilization influences the price of petroleum around the world, impacting the economies of developed and developing countries. Under U.S. antitrust jurisprudence, the OPEC quota agreements that stabilize prices would likely be declared illegal, and other countries might also declare price fixing to be illegal under their respective competition laws.
Several U.S. Senators have recently proposed that price fixing should be illegal under international law as well. This Note avoids a superficial analysis of the status of international antitrust law by exploring the ultimate basis of legal obligation and situating antitrust in the context of natural law. This Note's conclusion that OPEC should not be sued before the International Court of Justice is based upon implications of the characteristics of the relationship between natural law and human law, the footing of the world community on antitrust matters, and the requirements for implementing fair and consistent antitrust enforcement.
TABLE OF CONTENTS I. INTRODUCTION II. THE ORGANIZATION OF PETROLEUM EXPORTING COUNTRIES III. ANTITRUST LAW IN THE UNITED STATES IV. POLITICAL DISAGREEMENTS OVER ANTITRUST ENFORCEMENT POLICY V. THE RAPID ADVANCE OF COMPETITION POLICY WORLDWIDE VI. PRINCIPLES BEHIND COMPETITION LAW VII. THE NATURAL LAW BASIS OF LEGAL OBLIGATION A. The Natural Law Framework B. Characteristics of the Natural Law Framework C. Policy of Natural Law Enforcement VIII. ANALYSIS IX. CONCLUSION
United States Senator Arlen Specter made a floor statement on July 19, 2001 about the possibility of legal action against the Organization of the Petroleum Exporting Countries (OPEC) to decrease the price of petroleum. (2) Senator Specter was concerned with OPEC's practice of entering into agreements to restrict oil production, affecting the world market for oil by driving up its price. (3) Senator Specter and four other U.S. Senators together suggested two possible lawsuits against OPEC and other conspiring nations, including a suit in federal district court under U.S. antitrust law, (4) and a suit in the International Court of Justice (ICJ) based on "the general principles of law recognized by civilized nations." (5)
To determine the responsibility of OPEC nations to other sovereigns on principles of antitrust law, the basis of legal obligation should be explored. Natural law explains the origin, nature, and limits of obligation in a historically comprehensive and practical way, and enables cogent analysis of the international law question presented. International antitrust enforcement has elicited heightened concern in an increasingly connected world community where business concerns more frequently involve legal questions that transcend national borders, in which antitrust authorities "communicate, co-operate, and co-ordinate their efforts to achieve compatible enforcement results" in increasing measure. (6) The international legal question posed by OPEC's practice of price fixing is set forth in this Note, including discussion of U.S. antitrust law and the recognition of competition principles around the world, followed by a discussion of the natural law framework for legal obligation that enables a conclusion.
II. THE ORGANIZATION OF PETROLEUM EXPORTING COUNTRIES
Currently, the Organization of Petroleum Exporting Countries (OPEC) is composed of 11 countries (7) that together produce approximately 40 percent of the world's oil and hold more than 77 percent of the world's proven oil reserves. …