* Professor, Columbia Law School. Presented as a keynote address in a Symposium at Boston College Law School on Nov. 2, 2001 given in honor of Professor Cynthia Lichtenstein.
1 See, e.g., Cesare P.R. Romano, The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U. J. INT’L L. & POL. 709, 711 (1999).
2 See Vicki Been, The Global Fifth Amendment: NAFTA’s Investment Protections and the Misguided Quest for an International ‘Regulatory Takings’ Doctrine (forthcoming 2002) (on file with author).
3 For a survey of the interplay between public international law and WTO dispute settlement decisions to date, see Joost Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go?, 95 AM. J. INT’L L. 535 (2001).
4 Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. GAOR Hum. Rts. Comm., at 1, 18, U.N. Doc. HRI/GEN/1/rev (1984).
5 See Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Regina v. Bartle, 2 W.L.R. 827, 38 I.L.M. 581 (H. L. 1999) (U.K.); see also Karen Knop, Here and There: International Law in Domestic Courts, 32 N.Y.U. J. Int’l L. & Pol. 501 (2000); Anne-Marie Slaughter, A Typology of Transjudicial Communication, 29 U. Rich. L. Rev. 99 (1995).
6 See, e.g., John R. Bolton, Should We Take Global Governance Seriously, 1 Chi. J. Int’l L. 205 (2000); John O. McGinnis, The Political Economy of Global Multilaterialism, 1 Chi. J. Int’l L. 381 (2000); see also Andrew Moravcsik, Conservative Idealism and International Institutions, 1 Chi. J. Int’l L. 291 (2000).
7See Anne-Marie Slaughter, The Real New World Order, 76 Foreign Aff., Sept.–Oct. 1997, at 183.
8 Stewart Patrick, Multilateralism and its Discontents: The Causes and Consequences of U.S. Ambivalence, in Multilateralism and U.S. Foreign Policy 10 (Stewart Patrick & Shepard Forman eds., 2002).
9 United States Senate, Treaties and Other International Agreements: The Role of the United States Senate—A Study Prepared for the Committee on Foreign Relations, S. Doc. No. 106-71, 106th Cong., 2d. Sess 39 (2001). A study of the treaty practices of the United States in the most recent period, after its rise to the status of sole superpower, finds traditional U.S. ambivalence towards adherence to treaties only “slightly more marked” than in prior periods. See Nico Krisch, Weak as a Constraint, Strong as a Tool: The Place of International Law in U.S. Foreign Policy, in International Perspectives on U.S. Unilateralism and Multilateralism (David Malone & Yuen Foong Khong eds., 2002) (forthcoming 2002).
10 At present, there are more than 250 conventional international governmental organizations, roughly another 5200 intergovernmental bodies of various kinds, and over 1500 non-governmental organizations registered with the U.N. See Charlotte Ku, Global Governance and the Changing Face of International Law, 2 AUNS Rep. and Papers 5, 24 (2001). While these numbers are impressive, it is important to recognize that international institutions have life cycles and occasionally die. The growth in these institutions “occasionally plateau[s] following periodic organizing bursts.” Id. at 22 (quoting Shanks, Jacobson, and Kaplan).
11 Paul Szasz, General Law-Making Processes, in 35 United Nations Legal Order 59 (Oscar Schachter & Christopher C. Joyner eds., 1995). While, according to one study, there were only eighty-six multilateral treaties concluded in the 100 years between 1751–1850, there were more than 2000 concluded for the twenty-five year period between 1951–1975. Ku, supra note 10, at 5. This is not to suggest, however, either that the number of multilateral treaties has been raising in predictable or steady fashion over recent years or that ever greater numbers of traditional intergovernmental organizations on the model of the U.N. are being established by such treaties. Neither is true. That study reveals a drop-off in the number of new multilateral treaties being concluded in the 1976–1995 period compared to the period of 1951–1976, along with a decrease in the number of treaties that create conventional intergovernmental organizations in the model of the U.N. Id. at 5–23. That study also indicates that multilateral treaties intended for general participation by all states still constitute a minority of all treaties concluded annually and that the bulk of treaty making remains on a bilateral basis. Id. at 5. But note that the absence of growth in traditional intergovernmental organizations does not signify a withdrawal of commitment from other forms of institutionalization considered here, including the rise in unconventional forms of institutions. For a survey of these in one specialized field, see for example, Paul C. Szasz, The Proliferation of Arms Control Organizations, in Proliferation of International Organizations 135 (N.M. Blokker & H.G. Schermers eds., 2001); see also Philippe Sands & Pierre Klein, Bowett’s Law of International Institutions 121–28 (5th ed. 2001) (discussing environmental accords).
12 Roy Lee, Multilateral Treaty-Making and Negotiation Techniques: An Appraisal, in Contemporary Problems of International Law: Essays in Honour of Georg Schwartz-enberger on his Eightieth Birthday 157 (Bin Chang & Edward Brown eds., 1998).
13 Id. at 158.
14 See id. at 177–216.
15 See, e.g., Sands & Klein, supra note 11, at 1–4. This is not to deny the impact, over the long term, of conferences such as the First Hague Peace Conference in 1899 which, in the views of some, helped to usher in the modern period devoted to building international institutions, culminating in the establishment of the League of Nations. See, e.g., Ku, supra note 10, at 14–15.
16 See, e.g., Sands & Klein, supra note 11, at 3–4.
17 For a survey and critique of path dependency theory, see S.J. Liebowitz & Stephen E. Margolis, Path Dependence, Lock-in, and History, 11 J. L. Econ. & Org. 205 (1995). For consideration of the relevance of path dependency to the evolution of the common law, see Oona A. Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 Iowa L. Rev. 601, 622–30 (2001).
18 Robbie Sabel, A Study of the Rules of Procedure of Conferences and Assemblies of International Intergovernmental Organizations (1997).
19 Gunter Handl, Environmental Security and Global Change: The Challenge of International Law in Environmental Protection and International Law 199 (W. Lang et al. eds., 1991).
20 See Kenneth W. Abbott, Rule-Making in the WTO: Lessons from the Case of Bribery and Corruption, 4 J. Int’l Econ. L. 275, 282–83 (2001). Abbott goes on to explain that business interests did not pursue their interests in transnational regulation on bribery within the WTO because leveling the playing field against the smaller non-OECD competitors “was not a sufficiently high priority.” Id. at 282.
21 Id.
22 Such as the ILC.
23 E.g., in the assemblies of various IOs representing the full membership.
24 Such as in ICAO’s Legal Committee.
25 As in the WTO.
26 See, e.g., id. at 289–90 (noting how the U.S.’s strategy with respect to the regulation of bribery was highly congenial to the OECD given that organization’s tendency to act through a variety of both hard and soft instruments, as well as reliance on peer review and public pressure rather than litigation).
27 Id.
28 I owe this colorful turn of phrase to Joel Trachtman.
29 See, e.g., Abbott, supra note 20, at 286, 291. Abbott contends that the WTO’s culture of focusing on market access to the exclusion of more normative dimensions as well as emphasis on hard law rather than softer obligations, made it an unlikely forum for focusing on the normative aspects of the bribery and corruption issue in the ways that the OECD was able to do. Id. at 286–291.
30 For a discussion of the early evolution of an Optional Protocol to CEDAW, and the impact of U.N.-sponsored human rights conferences at Vienna (1993) and Beijing (1995), see Lilly Scharipa-Behrmann, An Optional Protocol to CEDAW: A Further Step Towards Strengthening of Women’s Human Rights, in Liber Amicorum: Professor Ignaz Seidl Honhenveldern in Honour of his 80th Birthday 683 (Gerhard Hafner et al. eds., 1998). For a critical view of the significant role played by NGOs with respect to the landmines convention, see Kenneth Anderson, The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organizations and the Idea of International Civil Society, 11 Eur. J. Int’l L. 91 (2000).
31 Indeed, some believe that international society has entered a new post-institutionalist period dominated by international civil society. See, e.g., Ku, supra note 10, at 26–34 (noting the far larger rise in the numbers of NGOs relative to the more modest increase in the numbers of traditional intergovernmental organizations).
32 Nor, of course, does power cease to be relevant once negotiations begin or a treaty is concluded. As ICAO’s anti-terrorism conventions remind us, use of an organizational venue for purposes of negotiation does not ensure that organizational mechanisms will be used for enforcement. Those conventions avoid the use of established ICAO fora, including the methods of dispute settlement within ICAO’s constitution (resort to the ICAO Council and to the ICJ). Instead, the extradition and prosecution regime effectively puts the onus of enforcement back on state parties, thereby giving powerful states, capable of exerting leverage on others, considerable free rein.
33 See Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 20 U.S.T. 2941, 704 U.N.T.S. 219; Hague Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 U.S.T. 1641, 860 U.N.T.S. 105; Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 565; Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Feb. 24, 1988, ICAO Doc. 9518, 27 I.L.M. 627.
34 See Geoffrey M. Levitt, Democracies Against Terror 10–11 (1988) (discussing history of the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft).
35 See, e.g., Robin R. Churchill & Geir Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law, 94 Am. J. Int’l L. 623 (2000). For a more critical view of managerial regimes, see George W. Downs et al., The Transformative Model of International Regime Design: Triump of Hope or Experience?, 38 Colum. J. Transnat’l L. 465 (2000).
36 See General Agreement on Trade in Services, Apr. 15, 1974, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1167 (1994) [hereinafter GATS]; Agreement on Trade-Related Investment Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 81 (1994) [hereinafter TRIMs]; see also International Trade Law Handbook 387, 531 (Raj Bhala ed., 2001). These Agreements are also available on the WTO web site, at http://www.wto.org (last visited Feb. 21, 2002).
37 For a description of nesting, see Duncan Snidal, The Game Theory of International Politics, 38 World Pol. 25, 45 (1985).
38 For a recent report of UNCITRAL’s efforts, see Report of the United Nations Commission on International Trade Law on the Work of its Thirty-Second Session, U.N. GAOR, 54th Sess., Supp. No. 17, U.N. Doc. A/54/17 (1999).
39 New custom may emerge from consciously created norms applicable even with respect to non-parties to a widely ratified convention; it may also result from information generated in plenary organizational fora such as the U.N. General Assembly. See Jonathan I. Charney, Universal International Law, 87 Am. J. Int’l L. 529, 536–42 (1993).
40 See, e.g., Anne Marie Burley, Regulating the World: Multilateralism, International Law, and the Projection of the New Deal Regulatory State, in Multilateralism Matters: the Theory and Praxis of an Institutional Form 1 (John G. Ruggie ed., 1993).
41 See, e.g., Robert L. Rabin, Perspectives on the Administrative Process 1–2 (1979).
42 For a detailed examination of the delegation issue in the context of the U.N., see Danesh Sarooshi, The United Nations and the Development of Collective Security: the Delegation by the U.N. Security Council of its Chapter VII Powers (1999).
43 Cf. Joel P. Trachtman, The Domain of WTO Dispute Resolution, 40 Harv. Int’l L. J. 333, 346 (1999).
44 See, e.g., Prosper Weil, The Court Cannot Conclude Definitely . . . Non Liquet Revisited, 36 Colum. J. Transnat’l L. 109, 110 (1997) (“[t]he view prevailing among writers is that there is no room for non liquet in international adjudication because there are no lacunae in international law”).
45 Cf. Ernst-Ulrich Petersmann, How to Promote the International Rule of Law?: Contributions by the World Trade Organization Appellate Review System, 1 J. Int’l Econ. L. 25 (1998); G. Richard Shell, Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization, 44 Duke L.J. 829, 907 (1995); Joseph Weiler & Joel P. Trachtman, European Constitutionalism and its Discontents, 17 Nw. J. Int’l L. & Bus. 354, 372 (1996–1997).
46 See, e.g., Jose E. Alvarez, Judging the Security Council, 90 Am. J. Int’l L. 1 (1996).
47 For an example of a case brought under Chapter 11 that raises this question, see Robert E. Lutz & Russell C. Trice, NAFTA at Five and the Loewen Case: Is NAFTA the Blood Relative of Lady Justice or the Angel of Death for State Sovereignty, 2 Translex: Transnational Law Exchange 1 (Oct., 1999).
48 Cf. Steven P. Croley & John H. Jackson, WTO Dispute Procedures, Standard of Review, and Deference to National Governments, 90 Am. J. Int’l L. 193, 202 (1996) (discussing the potential relevance of U.S. Supreme Court’s Chevron standard within the WTO context).
49 For a detailed discussion of this issue, see Jonathan I. Charney, Is International Law Threatened by Multiple International Tribunals?, 271 Recueil Des Cours 101 (1998).
50 For suggestions along these lines, see Steve Charnovitz, Economic and Social Actors in the World Trade Organization, 7 ILSA J. Int’l & Comp. L. 259 (2001).
51 For opposing views concerning the applicability of transparency within the NAFTA’s Chapter 11, compare Metalclad Corp. v. United Mexican States, 40 I.L.M. 36 (2001) (finding that foreign investors are entitled to the benefits of transparency under Chapter 11), with United Mexican States v. Metalclad, [2001] B.C.L.R.2d 664 (Can.), available at http://www.worldbank.org/icsid/cases/awards.htm (finding that the state parties to NAFTA did not commit themselves to transparency under Chapter 11).