The Rise or the Fall of International Law?
The R ise or the Fall of International Law?
Edith Brown Weiss 0
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Recommended Citation Edith Brown Weiss, Th e Rise or the Fall of International Law?, 69 Fordham L. Rev. 345 (2000). Available at: http://ir.lawnet.fordham.edu/flr/vol69/iss2/2
THE ROBERT L. LEVINE DISTINGUISHED
LECTURE SERIES THE RISE OR THE FALL OF INTERNATIONAL LAW?
Edith Brown Weiss*
At the turn of the century, the world is integrating, globalizing and
fragmenting. Some of the international norms have universal
acceptance; others are increasingly under challenge. For example, as
a reflection of the growing consensus on human rights, the
International Criminal Tribunal for the Former Yugoslavia has
indicted Milosevic, Karadzic, Mladic and others for international
crimes.1 Spain sought to extradite General Pinochet from England to
prosecute him for torture and other human rights violations
committed while he was President of Chile.2 On the other hand,
protestors disrupted the World Trade Organization Ministerial in
November 1999, and the World Bank and International Monetary
Fund meetings in April 2000, with complaints that they were
promoting globalization and economic growth and ignoring the social
and environmental costs. To some extent the latter events represent
pronounced disagreements about the state of the international system
and the norms it should uphold.
* Edith Brown Weiss. Francis Cabell Brown Professor of International Law,
Georgetown University Law Center. This article expands upon the Robert L Levine
Distinguished Lecture, delivered April 4,2000, at Fordham University School of Law.
The author thanks Rachel Bowen and Richard Holbrook, present and former GULC
students, for research assistance.
1. See htttp://vvw.un.orgicty/indictment/english/mil-ii99052Ye.htm;
httpJ/www.un.org/icty/indictment/englishikar-ii950724e.htm (visited Aug. 31, 2000);
Michael P. Scharf, The Tools for Enforcing InternationalCriminalJusticein the New
Millennium"Lessons from the Yugoslavia Tribunal,49 DePaul L Rev. 925 (2000).
2. Regina v. Bartle (Ex Parte Pinochet) and Regina v. Evans (Ex Pare
Pinochet), U.K. re House of Lords, Mar. 24, 1999, reprintedin 38 I.L.M. 581 (1999)
(on appeal from the Divisional Court of the Queen's Bench Division and ruling in
favor of extradition for a limited number of charges). See generally Ruth Wedgewood,
International Criminal Law and Augusto Pinochet, 40 Va. J. Int'l L 829 (2000)
(describing the efforts to extradite and to prosecute Pinochet, and analyzing the
potential long-term impact on international criminal justice).
The international landscape today is very different from the one of
fifty, twenty, even ten, years ago. As the July 1999 United Nations
Development Programme ("UNDP") Report suggests, we are living
today in a new landscape characterized by shrinking space (we are
affected by events happening across the globe), and shrinking time
(technology has sped up the flow of goods and information far beyond
what was imaginable just a few years ago). National borders are
breaking down, in part because of international trade, capital flows,
culture flows, economic policies, environmental concerns, the rise of
global communities and global civil society, and the spread of the
internet. In the emerging international system, both the actors and
the fora for making decisions and for resolving disputes are
diversifying. Traditional international law, as limited to laws between
sovereign States,3 is no longer the sole international legal focus. In
this setting, one may ask whether international law is declining, or
rising, albeit in modern garb.
This Article argues that traditional international law is healthy in
the sense that there are more international agreements than ever, and
States continue to serve important roles in the international system. It
is falling, however, as the sole focus of international legal efforts. It is
necessary to redefine international law to include actors other than
States among those who make international norms and who
implement and comply with them, and to include legal instruments
that may not be formally binding.
These developments raise three important issues: the need for the
new actors to be accountable and for the new norms to be legitimate;
the need for consensus about the level or location of authority, be it
international, national, subnational, or non-State, at which norms
should be negotiated; and the rising need for international law to
reflect commonly held values to keep the increasingly fragmented
international community together.
I. THE CHANGING INTERNATIONAL LEGAL SYSTEM The international legal system is changing, as are the characteristics and problems of international law.
A. The TraditionalSystem
The Peace of Westphalia that ended the Thirty Years' War three
hundred and fifty years ago established a new international order
based on sovereign, independent, territorially defined States who tried
to maintain political independence and territorial integrity. Since
3. For purposes of this Article, the term "State" refers to a country or the
national state. Subnational units such as provinces, Lfinder in Germany, or states in
the U.S. will be referred to as, e.g., the "U.S. State of California."
States could rely only on self-help if attacked, they needed new rules
to constrain each other's behavior.
The international legal system was European. It centered on
relations with States with defined territories, and was based on
equality among the sovereign States. It reflected a laissez faire
philosophy, in which all States were equally free to pursue their own
interests, whatever their underlying economic or political differences.
It was hierarchical in the sense that States controlled everything under
them. As the system of sovereign States spread across the world, so
did the system of international law that was based on it.'
The Permanent Court of International Justice articulated the
classical view of international law in the 1927 S.S. Lotus case:
International law governs relations between independent States.
The rules of law binding upon States therefore emanate from their
own free will as expressed in conventions or by usages generally
accepted as expressing principles of law and established in order to
regulate the relations between these co-existing
communities or with a view to the achievement of commionndeapimens.d5ent
In this view, international law is instrumentalist. It alters incentives
to affect the behavior and the interests of States, but does not consider
that States' interests may change over time in response. It implicitly
adopts the Realist School view that States are monolithic bodies, and
does not assign importance to entities within States, transnational
entities, or individuals.
The classical framework of international law centers exclusively on
States, relies on binding legal instruments to provide solutions, and
assumes that States comply with their obligations. The lines between
international and domestic law and between public and private law
are sharply drawn. Public international law governs
intergovernmental relations, while private international law regulates
the activities of individuals, corporations and private entities engaged
in transborder transactions such as choice of law rules and
international transaction rules.
As we enter the twenty-first century, the international political and
economic system has changed. Three developments affect the role for
international law generally: the simultaneous push toward integration
and fragmentation; the globalization of the economy; and the rise of
thousands of organizations and millions of individuals as relevant
actors-the rise of global civil society.
4. See J.L. Brierly, Law of Nations 7-16 (Sir Humphrey Waldock ed., 6th ed
5. S.S. Lotus (Fr. v. Turk.) 1927 P.C.IJ. (ser. A) No. 10, at 18 (Sept. 7).
As we approach the third millennium, our world is becoming both
more integrated and more fragmented. Evidence of global integration
abounds: regional trading units; regional political and economic
organizations such as the European Union ("EU") or the Asian
Pacific Economic Community ("APEC") forum; international regimes
covering issues ranging from banking and trade to human rights,
environmental protection, and arms control; and the spread of
financial markets. The information revolution, the rapid
technological advances, global environmental problems, liberalized
trade, and other economic and other interdependencies compel
greater interdependency and greater integration.
Moreover, the private sector has become globalized. Production of
goods takes place in facilities located across the globe: materials
processed in one country, parts made in different countries, assembly
in yet another country. Globalization is taking place from below
(bottom up) as well as from above (top down). Information
technology facilitates globalization through increased international
commerce because it reaches freely across national borders.
According to the UNDP, there were 143 million internet users
worldwide in mid-1998, and the figure was projected to increase to
more than 700 million by 2001.6 Thomas Friedman, in The Lexus and
The Olive Tree, describes the globalized system as complex
interactions through three sectors of actors: "[S]tates bumping up
against [S]tates, [S]tates bumping up against Supermarkets, and
Supermarkets bumping up against Super-empowered individuals."7
Future problems will require both global cooperation by governments
to address them effectively and transnational cooperation in the
As integration and globalization increase, there is simultaneously a
growing fragmentation within States and strong pressures for
decentralization of decision-making. Ethnicity, nationalism, and the
need for personal affiliations and satisfaction push toward
fragmentation and decentralization. In the early 1990s, less than ten
percent of the world's States were homogeneous ethnically; only
about fifty percent of the States had one ethnic group that accounted
for three-quarters of the population. 8 While States are relinquishing
elements of sovereignty to transnational non-State actors, the strong
sense of community that bound the citizens of the State together does
not extend to the transnational groups. New community bonds need
to be forged.
New divides are fragmenting the international system. States and
their non-State transnational elites are increasingly divided from the
ethnic, nationalistic, orthodox religious, dispossessed and alienated
communities that operate within States and across national borders.
Whatever their differences with each other, the governments of States
may have much in common as they try to counter common threats
within their country from radical religious, ethnic and political
movements. States and participants in the global private sector also
have much in common as they face a divide with illicit transnational
groups, such as drug, weapon, and terrorist groups.
Pushes toward integration and toward fragmentation have occurred
throughout history. In 1500, for example, Europe had about 500
independent political units; in 1900 it had about twenty.9 What is new
is that both impulses-integration and fragmentation-are happening
at the same time. This raises important issues concerning the proper
level and location of authority for addressing international concerns
and the role of commonly shared values.
C. The Non-HierarchicalInternationalSystem: Non-State Actors and
The emerging international system consists of networks of States,
international governmental organizations, non-State actors, and
individuals. While the sovereign State remains the principal actor,
other actors such as corporations and nongovernmental organizations
("NGOs") are assuming increasingly complex tasks, many of them
previously performed by States.
The international system is non-hierarchical. By contrast, the
community of sovereign States is more hierarchical than before. At
the beginning of the twentieth century, there were only thirty-four
generally recognized states, and fifty-one when the United Nations
was formed in 1945.10 At the beginning of the year 2000, there were
188 member states of the United Nations and several additional
recognized states." While all States are sovereign, they are not equal
in their relations with each other, despite the rhetoric. This is
reflected in weighted voting systems in international organizations
and in the emerging principle in international environmental law of
"common but differentiated responsibilities."12
There are many international actors other than States. The 1998-99
edition of the Yearbook of International Organizations records more
than 6,415 intergovernmental organizations and 43,958 NGOs, for a
total of more than 50,000 international organizations.13 Other
relevant actors include subunits of national governments,
corporations, domestic NGOs, ethnic minorities, illicit transnational
groups, ad hoc transnational associations, and individuals.
Nongovernmental organizations play prominent roles in the
negotiation and implementation of some international agreements,
particularly environmental ones. For example, they attended all of
the negotiations for the Framework Convention on Climate Change
and the Kyoto Protocol, where they distributed information, prepared
agreed positions on issues, and developed draft text of the Convention
to advocate to governments.14 Nongovernmental organizations can
also be assigned important roles in implementing international
agreements. In the Convention on International Trade in
Endangered Species ("CITES"), the World Conservation Monitoring
Unit for many years computerized the national reports of countries on
the trade in endangered species and prepared reports for tracking the
trade, as part of implementing the Convention's control of
international trade in endangered species. 5
At the World Trade Organization meeting in Seattle in November
1999, NGOs and labor groups from across the globe were present in
significant numbers, including more than 700 international NGOs that
were accredited to the conference itself, in addition to all those who
were present to demonstrate.1 6 The organizations are now pressing
for a significant voice in trade and other economic and monetary
issues. In contrast to the participation of NGOs at the 1992 UN
Conference on Environment and Development in Rio de Janeiro,
these groups do not necessarily all share the same basic values as the
governments represented. In Rio, all shared the stated value of
sustainable development. In Seattle, some did not share the value of
liberalized trade and the desirability of globalization.
II. THE EMERGING CHARACTERISTICS OF INTERNATIONAL LAW
International law reflects the evolution of the international system
into a non-hierarchical network. While binding international legal
instruments have greatly increased, nonbinding international legal
instruments concluded by governments and international
intergovernmental organizations have become very significant sources
of international law. Moreover, the private sector has concluded
important transnational instruments. The line between private and
public international law has blurred, as has that between issues of
domestic jurisdiction and international jurisdiction. There is
increasing integration of domestic and international law.
International relations have been increasingly legalized in the past
century. As of April 1998, there were over 34,000 treaties registered
with the UN.'7 Between 1918 and 1941, only sixty-one multilateral
treaties were recorded."8 The subject matter of the treaties has greatly
diversified. Treaties now cover newer issues such as gender
discrimination, ozone depletion, investment, and issues of private
international law. Those who argue that States are withering away as
relevant entities need to take notice of this increased legalization in
the international community.
Moreover, international law now consists of other important legal
instruments in addition to binding agreements and rules of customary
international law, namely, legally nonbinding or incompletely binding
norms, or what has been called "soft law."19 These instruments exist
in all areas of international law, although they appear to be more
17. See United Nations Treaty
Collection,<http://untreaty.un.orglEnglishloverview.asp> (visited Aug. 9,2000). Most
are bilateral agreements or agreements among a relatively small number of States.
18. Between 1889 and 1939, the United States concluded 524 treaties and 917
executive agreements, most of which were bilateral agreements. Treaties and Other
International Agreements: The Role of the United States Senate, A Study Prepared
for the Committee on Foreign Relations United States Senate, 103d Congress, 14 S.
Rep. 103-53, at 14 (1993).
19. Paul C. Szasz, InternationalNorm-inaking, in Environmental Change and
International Law 41, 69-72 (Edith Brown Weiss ed., 1992); International Compliance
with Nonbinding Accords 120 (Edith Brown Weiss ed., 1997) [hereinafter Brown
Weiss, Nonbinding Accords]; Commitment and Compliance: The Role of
NonBinding Norms in the International Legal System 100, 100-14 (Dinah Shelton, ed.
2000) (analyzing "soft law" in environment and natural resources, trade and finance,
human rights, and multilateral arms control).
abundant in human rights, environment, and financial dealings than in
trade and national security. At the end of June 2000, the twenty-nine
member countries of OECD adopted an important new code of
conduct for multinational corporations that is intended to promote
responsible business behavior in the globalized economy.20 Examples
of soft law in environmental law include the 1972 Stockholm
Declaration on the Human Environment,21 the 1992 Rio Declaration
on Environment and Development,' and the 1992 Forest Principles?3
adopted at Rio. The many guidelines, principles and recommended
practices adopted by the Organization for Economic Cooperation and
Development ("OECD"), the United Nations Environment
Programme or the United Nations Food and Agriculture
Organization, while nonbinding, are sometimes influential legal
One of the most important sources of international "soft law" is the
myriad of guidelines, resolutions, and recommendations that are made
by parties to an international agreement in the course of
implementing it. The old vision of an international agreement as an
unchanging normative document binding upon the parties is obsolete.
International agreements need to be viewed as living agreements, into
which parties continuously breathe life and to which they give new
directions by acting as informal legislatures.
The negotiation of legally nonbinding instruments is likely to
increase more rapidly than the negotiation of formal international
conventions, at least in certain areas of international law. This is true
because agreement is usually easier to achieve, the transaction costs
for governments and even NGOs are lower, the opportunity to set
forth detailed strategies is greater, and the ability to respond to rapid
changes in scientific understanding or economic or social conditions is
B. The Blurringof Public and PrivateInternationalLaw
In international law, as arguably in economics and other fields, the
bright line between public and private is becoming blurred. Public
international law has become increasingly concerned with areas that
used to be viewed as entirely within the purview of private
international law, just as private international law is more often
addressing issues that used to be viewed as the primary province of
Increasingly, governments are reaching international agreements to
facilitate transactions in private international law. The United
Nations Commission on International Trade Law ("UNCITRAL")
has often provided the forum for negotiating agreements relating to
commercial activities, such as the United Nations Convention on
Contracts for the International Sale of Goods, the United Nations
Convention on the Carriage of Goods by Sea, or the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards.' As
of August 2000, countries were still engaged in negotiations for an
international convention on the enforcement of judgments in civil and
commercial matters.' The subject of the Draft Convention has been
added to the agenda of the American Law Institute.
The private sector is also negotiating transnational arrangements
that in some cases assume functions that governments could do. In
international environmental law, the most important development for
the next century may be the emerging interaction of
intergovernmental environmental law with transnational
environmental law developed primarily by the private sector and by
institutions such as the International Standards Organization ("ISO").
25. The UNCITRAL agreements include the following: Convention on the
Recognition and Enforcement of ForeignArbitralAwards (entered into force June 7,
1959); UNCITRAL Arbitration Rules, General Assembly Resolution 31198 (1976);
United Nations Convention on the Carriageof Goods by Sea (1978) (Hamburg Rules);
UNCITRAL Conciliation Rules, General Assembly Resolution 35/52 (1980); United
Nations Convention on Contracts for the International Sale of Goods (New York,
1980); UnitedNations Conventionon International Bills of Erchange and International
Promissory Notes (General Assembly resolution 43/165, annex) (New York, 1988);
Convention on the Limitation Period in the International Sale of Goods (1989)
(Amended text. Originally signed in Vienna, 1974); UnitedNations Convention on the
Liability of Operatorsof TransportTerminalsin InternationalTrade (A/CONF. 152/13
Annex) (Vienna, 1992); United Nations Convention on Independent Guaranteesand
Stand-by Letters of Credit, 1996. UNCITRAL has also produced model laws on the
following topics: International Commercial Arbitration (1985), International Credit
Transfers (1992), Procurement of Goods and Construction (1993), Procurement of
Goods, Construction, and Services (1994), Electronic Commerce (1996),
CrossBorder Insolvency (1997). See UNCITRAL <httpJ//vww.uncitral.orgindex.htm>
(visited July 11, 2000).
26. See Hague Conference on Private International Law, Preliminary Draft
Convention on Jurisdictionand Foreign Judgments in Civil and Commercial Matters
(Oct. 30, 1999, as amended) <http://vvw.hcch.net/e/conventions/draft36e.html>
(visited July 11, 2000); see also Linda J. Silberman & Andreas F. Lowenfeld, A
Different Challenge for the ALl: Herein of Foreign Country Judgments, an
International Treaty, and an American Statute, 75 Ind. L.J. 635, 638, 641 (2000)
(discussing differences between the Draft Hague Convention and the Brussels
Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters, the European predecessor of the Draft Hague Convention).
There exists a large body of legally nonbinding norms developed
primarily in the private sector: codes of conduct by industrial
associations such as chemical manufacturers, agricultural associations,
business groups, professional bodies, NGOs, or ad hoc coalitions for
particular issues. Private codes of environmental management have
emerged as a major force in industry.
The most prominent private sector efforts to set environmental
management norms include the ISO's 14000 series,27 the Chemical
Manufacturer Association's Responsible Care Program, the Coalition
for Environmentally Responsible Economies, and the International
Chamber of Commerce's Business Charter for Sustainable
Development.' The European Union has developed a parallel effort
in the private sector in its Environmental Management Auditing
System. Although these codes differ, they require industry to follow
certain environmental management practices and provide for audits.
They seek to use market, peer, and public pressure to motivate firms
to undertake major changes in their management procedures and rely
on procurement practices of other companies, governments, and
individual consumers to enforce them. This may be characterized as a
new global commerce law.
C. Integrationof Internationaland Domestic Law
We have become accustomed to sharply differentiating
international law from national law. International law applies
between States; national law governs relations within States. But
there is no longer such a sharp line.
International law has always been linked with national law, for
international law is implemented through national, provincial, and
local laws. In other cases, national laws, independent of any treaty,
provide protection to other countries or their citizens from harm that
occurs within the country but injures those outside. For example,
there was Canadian and United States national legislation on air
pollution, which existed long before the Canada-United States acid
rain agreement, provided for reciprocal access to administrative
27. Naomi Roht-Arriaza, Compliance with Private Voluntary Agreements: The
Example of the International Organization for Standardization's ISO 14000
Environmental Management and Related Standards, in Brown Weiss, Nonbinding
Accords, supranote 19, at 205-18.
28. See Jody Freeman, The PrivateRole In Public Governance,75 N.Y.U. L. Rev.
543, 645-57 (2000) (discussing private governance regimes); Jennifer Nash & John
Ehrenfeld, Code Green, Env't, Jan.-Feb. 1996, at 16, 19; TransnationalNotions of
Environmental Behavior and the Spread of the Industrial Ecology Ethic, in
International Environmental Law and Policy 1087-90 (Edith Brown Weiss et al, eds.,
29. See Clean Air Act (as amended), 42 U.S.C. § 7401 et seq., 7415 (1994).
Canada's Clean Air Act was amended by an Act to Amend the Clean Air Act,
In still other cases, States may apply their own national laws
extraterritorially; 0 for example, proposals to extend the United States
National Environmental Policy Act's requirement of a formal
environmental impact statement to all projects abroad, and efforts to
extend the reach of antitrust laws. The United States extended its ban
on business ties to Cuba to give U.S. nationals having a claim for
confiscated property in Cuba a right of action against any foreign
company engaged in commercial activity with Cuba involving
expropriated property. The action raised the ire of Canada and
countries in the European Union, along with a number of other
countries."1 Since there is no international agreement setting forth
criteria for extraterritorial application, the practice of doing so
generates conflict? 2
Increasingly, the sharp line between international and national law
is disappearing because provinces or local units of governments are
concluding legal instruments on transborder issues independently with
sub-national units of governments in other countries. For example,
the 1982 Agreement on Acid Precipitation between the United States
state of New York and the Canadian province of Quebec provides for
the monitoring and exchange of information on acid precipitation."
assented to Dec. 17, 1980, 29 Elizabeth II ch. 45, reprinted in 20 I.L.M. 762 (1980).
Canada amended its Clean Air Act as the result of a reciprocal agreement. United
States Canadian Negotiation on Air Quality, Pub. L 95-426, title VI, § 612, Oct. 7.
1978, 92 Stat. 990, reprintedin 20 I.L.M. 676 (1980), and as amended at 30 I.L.M. 676
30. See, eg., Shigeo Kawagishi, Exrtraterritorialityand International Law, in
Trilateral Perspectives on International Legal Issues 149, 149-64 (Michael K. Young
& Yuji Iwasawa eds., 1996) (discussing extraterritoriality in the Japanese context).
31. See Cuban Liberty and Democratic Solidarity Act (Libertad) ("Helms-Burton
Act"), 22 U.S.C. § 6021 etseq. (Supp. 1998). In response, the European Union passed
EU Council Regulation 2271/96 on November 22, 1996. 1996 OJ. (L 309). The U.S.
and the EU produced a memorandum whereby President Clinton declared his
intention that the secondary boycott measures of the Helms-Burton Act not be
applied against the EU countries during the remainder of his term of office. Reprinted
in 36 I.L.M. 529 (1996). See Agora: The Cuban Liberty and Denocratic Solidarity
(LibertadAct), 90 Am. J. Int'l L. 419 (1996).
32. The Restatement on Foreign Relations Law Third provides that a State has
jurisdiction to prescribe with respect to conduct taking place within its territory, the
status of persons or interest in things within its territory, conduct taking place outside
its territory but having or intended to have substantial effect with its territory,
activities, interests, status or relations of its nationals outside and inside its territory,
and conduct outside its territory by non-nationals directed against the security of the
States or certain other State interests. See Restatement (Third) on Foreign Relations
Law § 402 (1986). Section 403 bars jurisdiction to prescribe when it is
"unreasonable," and sets out relevant factors to evaluate in determining whether the
jurisdiction is "unreasonable." See id. § 403. Certain offenses, such as terrorism, are
recognized to create universal jurisdiction. See id. § 404. States may exercise
jurisdiction to prescribe for limited purposes for foreign branches of corporations and
foreign subsidiaries. See id. § 414.
33. See Agreement on Acid Precipitation, July 26, 1982 (New York-Quebec),
reprintedin 21 I.L.M. 721.
While the legal instruments may not rise to the level of an
international agreement, they nonetheless shape transborder relations
and, more generally, affect the structure of international law. The
United States Supreme Court recently struck down the Massachusetts
state law that restricted the use of taxpayer money for purchases from
companies that do business with Burma (Myanmar). 4
But there is another sense in which the line is becoming blurred,
namely, the increasing acceptance of issues formerly regarded as
within "domestic jurisdiction" as issues that raise international
concern. For example, the growing transnational human rights
consciousness has contributed to pressure on the United Nations
Security Council to authorize interventions for humanitarian purposes
in cases that earlier might have been viewed as falling within
"domestic jurisdiction." Large elements of the international
community have endorsed strong collective action in situations of
"[g]enocide, 'ethnic cleansing,' ... [i]nterference with the delivery of
humanitarian relief to endangered civilian populations.... [c]ollapse
of civil or3d5er,... and [i]rregular interruption of democratic
In the United States, as in other countries, domestic law is
important in determining the United States' position in international
negotiations. While it may influence negotiators to press for
obligations that conform to domestic law, it may also provide an
excuse for negotiators' refusals to accept obligations not already
codified in United States law. Several examples illustrate the
interplay between the negotiations and U.S. law. First, in the
negotiations for the UNECE Convention on Environmental Impact
Assessment in a Transboundary Context,36 U.S. legislation requiring
environmental impact statements ("EIAs") only for major federal
actions significantly affecting the quality of the human environment37
made it difficult to accept an obligation to prepare EIAs for any
activity creating a risk of significant harm to the environment across
national borders. In the UNECE Convention on Transboundary
Effects of Industrial Accidents, the pressure from European
countries to incorporate fully the Seveso Directive,39 which differs
from U.S. laws governing industrial accidents, created difficult
The need to implement international law has always linked national
with international law. Most international agreements are not
selfexecuting and need national implementing legislation. But the
implementing legislation may not exist or may be fragmentary. Even
after the Senate gave its advice and consent to the Protocol on
Environmental Protection to the Antarctic Treaty' and the Genocide
Convention,4 the United States withheld ratification until Congress
adopted the necessary implementing legislation or the required
regulations were issued. A survey of national implementing
legislation in countries party to the Convention on International
Trade in Endangered Species revealed that sometimes implementing
legislation does not exist and when it does, there are often significant
deficiencies. An empirical study of five environmental agreements
indicated that the status of national implementing legislation cannot
be captured through a one-shot photograph. Rather, it changes over
time, normally coming into greater conformity with international
III. NEW CHALLENGES IN THE INTERNATIONAL LEGAL SYSTEM
The emerging international system raises two important issues:
accountability by non-State actors and by the private sector, and the
legitimacy of the norms created by them. Both deserve the attention
of the international community.
A. Accountability and Legitimacy
Traditionally, States have been accountable to each other as
independent sovereigns for assuring compliance with international
law. This is still true. But the communications revolution has made
governance more transparent and hence public involvement greater.
Meetings of the parties to the Convention on International Trade in
Endangered Species and to the World Heritage Convention are
promptly available on the Internet 3 Televised images of civilians
suffering in internal conflicts have generated pressure from NGOs and
domestic public opinion for governments to take collective action in
response. While States are accountable to their citizens in democratic
governments, non-State actors are not subject to direct public
accountability. Participation by non-State actors in the international
legal system greatly enhances accountability, because it can give a
voice to citizens who would otherwise be unrepresented, ensure that
actions taken meet local needs, counter effects of high-level
governmental corruption, and therefore produce outcomes that
maximize human welfare efficiently. Information technology makes
information readily accessible to groups and individuals across the
world and empowers them. It makes governments and international
organizations more transparent.
While most NGOs are constructive, however, they need not be.
And it may be difficult for the public to know much about the
organizations. Some NGOs are membership-based and accountable
to their members, while others are loosely accountable to their
funders, who may be dispersed.
While international organizations, such as the UN Economic and
Social Council, have developed processes for determining NGO
representation at international meetings, even these need to be
reconsidered in light of the increasing number of NGOs. Moreover, it
would be appropriate to consider additional processes that legitimate
NGO participation in the international legal system. International aid
is increasingly channeled through NGOs, including five percent of
OECD aid in 1993-94, up from 0.7% in 1975. As of 1996, Sweden
channeled thirty percent of its foreign aid through NGOs.44 Donor
countries often support NGOs because of a belief that this will
strengthen democracy.45 However, NGOs, especially in countries that
are not democratic or only weakly democratized, may not be built on
democratic structures themselves. Consequently, it is difficult for
donor countries or individuals affected by the NGOs to hold them
accountable for their political behavior.
Nongovernmental organizations need to be held accountable for
their actions. Information that cannot be verified, pressures for
special interest pleading outside the intergovernmental forum,
unlimited demands for transparency, and similar concerns mean that
RISE OR FALL OFINTERNATIONAL LA W
pressures will likely build for at least an informal code of conduct.' It
would be appropriate for leading NGOs, who have contributed so
importantly to developing and implementing international law in
fields such as human rights and the environment, to consider
developing a set of accountability principles, perhaps similar to the
Sullivan Principles47 for investment in South Africa during the
apartheid era,I to which companies wishing to invest in South Africa
could subscribe. Government regulation could only increase the
burden on NGOs, many of whom are already understaffed or lack
The private sector must also be seen as accountable to the public
for its actions that affect the environment. In the West, at least,
industries and corporations are accountable through the market
system. Consumer preferences both drive and limit what they can do.
But accountability through the market place is tenuous and works
imperfectly. Consumers may be able to act through boycotts to affect
the behavior of corporations, but the consumers are frequently not the
individuals most affected by those activities. The affected individuals
may live in countries in which they are not free to oppose the
corporations or, if they work for the corporation, they may not have
the right to organize and protect their interests in that way. Few
governments are powerful enough to compel behavior from large
multinational corporations because most countries rely on the
revenue generated by their business activity and are highly susceptible
to threats by companies to leave the country.
Even if the actors are accountable, the norms developed in the
private sector must be regarded as legitimate if people are going to
comply with them. Political scientist Stuart Kaufman notes that
w"[aos]ntheartetahseonPewrshiyanPsewrseiare's mheogreemseonnsyitilvaestetod. t.w.icisesuaessloonfgleagsitiAmsascyyri.a'4s9
Democratic procedures are a central component of legitimacy in most
46. See Steve Charnovitz, The Globalization of Economic Human Rights, 25
Brook. J. Int'l L. 113, 114-15 (1999) (questioning the commonly held view that the
inclusion of NGOs in international politics in any way cures the democratic deficit).
47. Statement of the (Sullivan) Principles (Fourth Application), Nov. 8, 1984,
reprintedin 24 I.L.M. 1496 (1985). The United States adopted the principles in 1985.
Executive Order 12532, Sept. 9, 1985, 27 U.S. Weekly Compilation of Presidential
Documents, 1048-1055 Sept. 16, 1985, reprintedin 24 I.LM. 1485 (1985).
48 See Heidi S. Bloomfield, "Sweating" the International Garment Industry: A
Critiqueof the PresidentialTask Force'sWorkplace Codes of Conductand Monitoring
System, 22 Hastings Int'l & Comp. L. Rev. 567, 587 (1999) (presenting the Sullivan
Principles as an example for comparison with guidelines regarding sweatshop labor).
49. Stuart J. Kaufman, The Fragmentation and Consolidation of International
Systems, 51 Int'l Org. 173, 195 (1997). Robert Keohane and Joseph Nye, writing in
ForeignAffairs, observed that the "[r]ules require authority, whether in the form of
public government or private or community governance." Robert 0. Keohane &
Joseph S. Nye Jr., Power and Interdependencein the Information Age, Foreign Aff.,
Sept.-Oct. 1998, at 82.
systems. In Legitimation Crisis, Jtirgen Habermas argues that a
fundamental part of legitimacy and democratic acceptance stems from
the process of reasoning together through democratic speech to reach
a conclusion whose origins are knowable." This may present a
problem for international rules and standards that are generated away
from public view.
It is essential to build processes for legitimating the norms
developed by transnational actors, whether industrial, commercial,
human rights, environment, or otherwise. Otherwise the norms will
not be acceptable in the long run. When the industrial and
commercial sectors address environmental issues, for example, this
may mean giving a voice to governments and to the public in
developing the norms, whether they be so-called "green" management
practices, eco-labels or other practices. The private sector may resist
because conditions change quickly, precluding meaningful
consultation, or because other actors who may be insufficiently
informed could corrode or delay the process. While information
technology should assist in overcoming these problems, the process
would still be less efficient, at least in the short run. But unless the
process for developing the norms is viewed as legitimate, the norms
will not be accepted by the broader community.
B. AppropriateLevel of Authorityfor Governance
There is a growing and genuine lack of consensus about whether the
appropriate level of authority for governments to address many
political and cultural issues is local, regional, national, or
international, or even whether the public or the private sector is the
more appropriate body. In traditional international law, it was
assumed that States were the appropriate level of authority, except for
occasional invocations of international organizations to address issues.
But with the nonhierarchical international system that has emerged,
the appropriate level of authority has become a divisive issue. Highly
educated and mobile transnational elites may feel comfortable with
decision-making at the international level, but this may evoke a
visceral reaction from local communities who may be hostile to
international institutions. Ethnic groups within individual countries
may also turn to the international community to support their claims
for autonomy. Individuals in this new order want both to ensure that
they have a piece of the economic pie and, most importantly, to
control their own fate. Frequently, the international system is seen as
a detriment to both of those desires.
The problem has several different but related dimensions. The first
is the relationship between different levels of government in issues of
governance. These levels include States, subnational actors, such as
states, provinces or municipalities, regional organizations of member
States, or international organizations. The second dimension is the
allocation of governing authority as between the transnational
networks of private actors or quasi-public actors and the
governmental authorities. Most of the literature has addressed the
former, which presumes hierarchical relationships.5' The principle of
subsidiarity, which is embodied in the European Community for
example, operates in the hierarchical context.- The other problem,
the appropriate allocation between public and private sector
networks, is part of the nonhierarchical system and thus may call for
analysis separate from that applicable to the former.
sections of this Article address some of the relevant issuesT.5h3e previous
A central feature of the allocation issue is that the allocations of
authority for governance on specific sets of issues are always changing.
Issues that once were the province of States may become primarily the
province of international organizations, may shift downward to the
local level, or may be shared with the local or international level.
Other issues that were solely or primarily the province of local or
national public authorities, such as the conservation of biological
diversity or the protection of human rights, may become subject to
international competence. Still other problems, such as climate
change, ozone depletion, and global liberalized trade, may be
inherently international because of their characteristics. The
stratospheric ozone layer and the world's climate know no political
The controversy over the appropriate level and allocation of
governance authority is poignantly represented in the efforts to hold
General Pinochet accountable for human rights violations that
occurred during his tenure as President of Chile. Spain and Chile
both vied for jurisdiction.' Others argued that an International
Criminal Court was needed, and that such cases should be heard by an
international tribunal.55 The House of Lords ultimately decided that
Pinochet could be extradited because the Convention Against Torture
and Other Forms of Cruel and Inhuman Punishment 5 6 which Chile
had ratified, created universal jurisdiction for the prosecution of
torturers.5 7 However, the General's ill-health ultimately persuaded
British authorities to send him back to Chile rather then extradite him
to Spain for trial, side-stepping the issue for the present.
The principle of subsidiarity has served as the primary international
legal principle addressing governance allocation among different
levels of government.58 The Treaty on the European Union (the
"Maastrict Treaty") enshrined the doctrine in the European
Community.59 Article 5 of the European Community Treaty provides
that the Community shall take actions in areas outside of its exclusive
competence "only if and insofar as the objectives of the proposed
action cannot be sufficiently achieved by the member States and can
therefore, by reason of the scale or effects of the proposed action, be
better achieved by the Community." 6 It was intended as a way to
refine the Community's authority in relation to Member States. 61 The
1992 Rio Declaration on Environment and Development included a
version of the subsidiarity principle in Principle 10: "Environmental
issues are best handled with the participation of all concerned citizens,
at the relevant level."'62 The problem is how to define the relevant
56. United Nations Convention Against Torture and Other Forms of Cruel and
Inhuman Punishment, Feb. 4, 1985, reprintedin 26 I.L.M. 1490.
57. General Augusto Pinochet was arrested on an extradition warrant in London
in October 1998. Ultimately the House of Lords ruled in favor of extradition for a
limited number of charges relating to torture and conspiracy to commit torture.
Regina v. Bartle (Ex parte Pinochet) and Regina v. Evans (Ex parte Pinochet), U.K.
reHouse of Lords, Mar. 24, 1999, reprintedin 38 I.L.M. 581 (1999) (on appeal from
the Divisional Court of the Queen's Bench Division); see also Wedgewood, supra
note 2, at 832 (discussing Chile's demand to have General Pinochet returned to Chile
and claiming that Chilean legal process could address the issue).
58. The principle of subsidiarity is arguably rooted in Catholic social theory,
where it was first articulated by Pope Pius XI in the 1931 encyclical Quadregesimo
Anno. The encyclical suggested that government decisions should be made as close to
the affected people as possible. See Pernice, supra note 52, at 405-07. The encyclical
envisioned a world characterized by interlocking networks of community, family,
church and government. The principle of subsidiarity subsequently became enshrined
in German constitutionalism and then introduced into the European Community.
The Community accepted such a principle because it arguably suffered from a
democratic deficit. See generally Peter L. Lindseth, Democratic Legitimacy and the
Administrative Character of Supranationalism: The Example of the European
Community, 99 Colum. L. Rev. 628 (1999) (discussing the insertion of the subsidiarity
principle into the European Community Treaty).
59. See, e.g., Treaty on European Union and Final Act, Feb. 7, 1992, Title II, 36,
reprintedin 31 I.L.M. 247, 278 (1992) (authorizing EU action in the area of education
only where necessary to assist the responsibilities of the member states).
60. Treaty Establishing the European Community, Oct. 2, 1997, reprinted in 37
I.L.M. 56, 80 (1998).
61. See Paul D. Marquardt, Subsidiarityand Sovereignty in the European Union,
18 Fordham Int'l L.J. 616, 617 (1994).
62. Rio Declaration on Environment and Development, June 14, 1992, U.N. Doc.
level. Some issues such as noise pollution are local; others such as
climate change and ozone depletion are global. Many can be
addressed at different levels, and even simultaneously. The
subsidiarity principle does not provide definitive answers, nor does it
apply to the horizontal allocation of authority among public and
private sectors, or between States.
This Article addresses only two aspects of the proper competence
for governance: transborder agreements of subnational units, and the
unilateral actions of subnational units that affect other countries.
These raise vertical issues of the appropriate level of authority for
addressing transborder issues or issues of international concern to
Increasingly, the sharp line between international and national is
disappearing as sub-national units of governments are becoming
important actors. In the United States, for example, states conclude
transboundary legal instruments without the consent of Congress and
take unilateral actions that have important international effects.
These actions raise issues of federalism, defined as a constitutional
arrangement that distributes governing authority between a national
government and sub-national units, which are usually demarcated by
territory.6 Federalism can be distinguished from the subsidiarity
principle in that subsidiarity merely asserts that governing programs
should be carried out at the level on which it is most efficient, while
federalism presumes permanent institutional arrangements that
determine the proper level of governance with the requirement of
1. Transborder Agreements by States or Provinces within Countries
The United States Constitution provides that "No State shall,
without the Consent of Congress,... enter into any Agreement or
Compact with another State, or with a foreign Power."t 5 The
Constitution's Framers, however, did not elaborate on what they
intended by the words "Agreement or Compact." There are
increasing numbers of instruments concluded between U.S. states and
foreign provinces or sub-national units that apparently do not rise to
the level of an agreement. Most of the instruments provide for
information sharing or planning coordination, which arguably do not
affect the federal government's powers. A review of earlier judicial
cases that focused on new transborder instruments suggests the
erosion of clear criteria as to what constitutes an "agreement" or
AICONF.151126/Rev.1 (Vol. I) at 3-8, reprintedin 31 I.LM. 874,878 (1992).
63. See Mark Tushnet, Federalismand Liberalism,4 Cardozo J.Int'l & Comp. L
329, 330-32 (1996).
64. See id. at 331.
65. U.S. Const. art. I, § 10.
"compact." One of the earliest examples is the instrument concluded
between two counties in North Dakota and the town of Arthur in the
cCoannsatidtiuatnionapl.ro66vince of Manitoba, which the court found
There are many more recent examples of particularized
environmental arrangements made across international borders
without congressional consideration. In 1989, the governors of
Washington, Alaska, Oregon, and California and the Premier of
British Columbia signed an Oil Spill Memorandum, which provides
for an oil spill task force and joint response drills and training.67 In
1992, the state of Washington and the province of British Columbia
concluded an Environmental Cooperation Agreement, which
established a joint environmental initiative and an agreement to
create additional arrangements necessary for addressing specific
environmental problems.' Subsequently, a Memorandum of
Understanding was signed to provide for consultation between
agencies of the two governments before either may issue a permit for
a large air pollution source within one hundred kilometers of the
border.69 The 1993 New York-Quebec Memorandum of
Understanding on Environment Cooperation required that each party
give "prior notice and ... consult" before beginning any "major action
or project.., likely to adversely affect" the other party's
environment.70 Also in 1993, New York, Quebec, and Vermont
concluded a Water Quality Agreement on In-Lake Phosphorous
Criteria, through which the parties agreed to limit eutrophication of
Lake Champlain from sources in each jurisdiction. 71 On the
U.S.Mexican border, the governors of California, Baja California Norte
and Baja California Sur agreed in 1994 to create "a California Border
Environmental Cooperation Committee to address environmental
infrastructure needs ... of the border area."' The local governments
of North Slope Borough in Alaska and the Inuvialuit Game Council in
Canada established a bilateral management plan for the Beaufort Sea
polar bear population.73 While these legal instruments may not rise to
the level of an international agreement for constitutional purposes,
they nonetheless shape transborder relations and evidence the
growing use of subnational authorities to address transnational
Similar developments have occurred within Europe, especially in
countries such as Germany.74 Economic cooperation in Europe
generally takes place through transborder regional groups rather than
national governments. The EU has recognized the importance of
Europe's regions by creating a Committee on the Regions 5 that
produces official comments on EU actions and by allowing numerous
regions, notably the German Ldnder, to set up their own missions in
Brussels.76 Provincial governors and mayors are also taking on
unprecedented importance as Europe integrates.'
2. Unilateral Transborder Actions by Subnational Actors within
A second category of activities in which states within the United
States have tried to influence international affairs is through unilateral
measures directed at transboundary activity or foreign actors. In
Barclays Bank PLC v. Franchise Tax Board78 in 1994, the United
States Supreme Court upheld California's method of taxing foreign
and domestic multinationals, which differed from the federal
accounting method.79 In the environment, controversies have arisen
over state restrictions on the export of unprocessed timber.80 In 1990,
Congress enacted the Forest Resources Conservation and Shortage
Relief Act, which prohibited exports of unprocessed state timber from
lands west of the 100th meridian, which runs roughly from North
Dakota to Texas.81 Although then Senator Packwood claimed the
measure satisfied the General Agreement on Tariffs and Trade,
others were doubtful.
The Supreme Court has since rejected an exercise of subnational
(state) authority in foreign relations in its recent decision in Crosby v.
National Foreign Trade Council.8 In protest against human rights
violations in Burma (Myanmar), Massachusetts adopted on June 25,
1996, an Act Regulating State Contracts with Companies Doing
Business with Burma, which restricted public purchases from such
companies. The law required adding ten percent to the bids on
purchasing contracts of firms doing business with Burma and rejecting
those bids if another company offered a lower bid." At least nineteen
municipalities have enacted similar laws.84 Massachusetts's Burma
Law was struck down in accordance with the Supremacy Clause of the
United States Constitution, which gives federal laws primacy over
state laws in areas where Congress has been granted authority, and
where it has exercised that authority. Congress passed legislation
that set certain limits on sanctions against Burma (Myanmar), which
were less severe than those imposed by Massachusetts, and authorized
the President both to set and to repeal further sanctions and to
coordinate a multilateral strategy toward achieving democracy in
While Congress had several times declined to prohibit sanctions by
states, the Court found that the Massachusetts law substantially
interfered with accomplishing the objectives under the Congressional
Act.87 Numerous international actors, including Japan, ASEAN, and
the European Union lodged formal complaints regarding the
Massachusetts law. The European Communities and Japan initiated
dispute settlement proceedings under the World Trade Organization
(WTO), and sent a formal letter to the United States Department of
State indicating that its relationship with the United States would be
harmed if the Massachusetts law were allowed to stand.' The Court
determined that the Massachusetts law posed a significant
impediment to the President's pursuit of multilateral actions regarding
Burma (Myanmar). 90
This dispute invoked several levels of actors' asserted authority. On
the local level, the Commonwealth of Massachusetts argued that it
was responding to the will of its voters that tax money not be used to
support the military regime in Burma (Myanmar). On the national
level, Congress had already enacted applicable legislation, and the
Supreme Court found the state act to be unconstitutional. At the
international level, foreign countries successfully exerted pressure in
more than one way to eliminate a law that harmed their national
corporations. Moreover, while the WTO did not have the opportunity
to decide the dispute, the authority of the WTO to rule on decisions
made by local governments was not questioned during these events.
While the Supreme Court averted a direct conflict between
supranational and local jurisdiction, the spread of globalization - and
individual mistrust of globalization - makes it likely that similar
conflicts will arise in the future.
87. See id. at 2289-90.
88. United States-Measures Affecting Government Procurement, complaint by
the European Communities (WT/DS88!1) and United Staes-Measures Affecting
Government Procurement, complaint by Japan (VT/DS95/1). The European
Communities and Japan complained that the Massachusetts law violated United
States commitments under the WTO Agreement on Government Procurement, a
plurilateral agreement under which Massachusetts agreed to be covered. In February
1999, the complainants requested that the panel proceedings be suspended. Since the
panel was not requested to resume its work, the authority for establishing the panel
lapsed as of February 11, 2000.
89. The European countries, arguing as amici, complained of the harm done to
their citizen corporations by individuals who have gained access, through the internet,
to the Commonwealth's list of companies who do business with Burma and have used
that list to organize individual or organizational boycotts. See Brief for the European
Communities and Their Member States: Austria, Belgium, Denmark, Finland,
France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain,
Sweden, and the United Kingdom as Anmici Curiaein Support of Respondent, Natsios
v. NationalForeign Trade Council, (No. 99-474), availablein 2000 WL 177175, at *7.
90. Crosby, 120 S. Ct. at 2296.
C. InternationalLaw as Reflecting Commonly Held Values
Traditional international law rested on a common set of values,
namely the acceptance of sovereign, independent and equal States,
who consented to rules that would regulate the relationships between
them. Within a State's jurisdiction, the State and its inhabitants could
pursue their own values. But the simultaneous integration and
fragmentation of States has made it more important than ever that
global civil society share certain common values. There is both a
growing global emergence of certain common values, and a growing
lack of consensus about certain values.
International law will face an unusually heavy challenge in the
decades ahead-to provide the norms that connect the many parts of
our global society. Political theory tells us that viable communities
need shared values, either globally or locally. Communities need to
feel that they are linked to each other.91 The new transnational elites
need to share common values with each other and with the
fragmented communities who are not directly part of the elites. The
disenchanted need to feel that processes are available to them to
redress their grievances and need to have an underlying sense of
commonly held values with others in the community.
On the one hand, some common values are emerging globally.
These are reflected, for example, in the delineation of war crimes and
the negotiation of the International Criminal Court to hold those in
power accountable, the adoption of environmental protection
measures, the increased invocation of transparency, the transitions to
democracy, the reliance on markets as a useful economic instrument,
and perhaps in the legal constraints on political corruption. The
common environmental values of intergenerational equity to protect
future generations, sustainable development, common but
differentiated treatment, public participation, and access to
information link many people together. Viewed against the backdrop
of five decades, the emergence of these commonly held values is
striking- even if not all of them are universally accepted.
On the other hand, there may be also be a breakdown of a
consensus on some universal values, or a failure of a consensus to
emerge. For example, some protesters in Seattle rejected the value of
globalization. Citizens in countries often reject immigration or the
introduction of "foreigners" into the society. These are economic
statements as well as political statements. People may feel either that
they do not have access to the relevant decision-making procedures or
that they are not getting an appropriate economic slice of the pie and
feel threatened by forces beyond their control. On the other hand,
there may also be a disagreement about values. Some demonstrators
91. See David Held, Democracy and the Global Order 3-27 (1995).
oppose globalization or immigration because these forces are
perceived to threaten non-economic values.
These developments mean that if international law is to rise, and
not fall, it will be essential to have a consensus on an increasingly
larger number of shared values and to work toward a consensus on
the appropriate levels of authority for addressing different issues, so
that people can satisfy their desire to have a measure of control over
their own lives. Some of the shared values may well empower people
at the local level to govern locally and to pursue different cultural
values. The pursuit of shared values does not preclude the existence
of special values at the community level.
One fundamental norm that has emerged is that concerning our
relationship with present, past and future generations. Until recently,
international law has addressed intertemporal issues mainly by
relating the present to the past. Increasingly, intertemporal issues
relate the present to the future, as in economic development,
environmental and natural resource protection, and cultural heritage
issues. The mandate for sustainable development is inherently
intergenerational. Elsewhere I have articulated a theory of
intergenerational equity, which argues that we are part of the natural
system and that we hold the global environment in common with past,
present, and future generations of the human species. We have both
rights to use it for our own benefit and obligations to care for it for
our generation and for future generations. 2 This in turn gives rise to
principles of intergenerational equity, which must be articulated and
can provide the normative link between the present generation and
It also leads to a set of intergenerational equity principles of
options, quality, and access, and to a principle of intragenerational
equity among peoples living today. The latter provides rights of
nondiscriminatory access to the benefits of environment and
nondiscriminatory bearing of environmental burdens.
While intergenerational equity as a principle seemed remote from
the daily practice of international law when first articulated, there has
now been considerable scholarly, policy, and judicial attention, both in
national and international courts, devoted to fairness to future
generations. In particular, Judge Weeramantry, the former Vice
President of the International Court of Justice, recognized in his
separate dissenting opinions since the mid 1990s the principle of
intergenerational equity as an established part of international law.
92. Edith Brown Weiss, In Fairness to Future Generations: International Law,
Common Patrimony, and Intergenerational Equity (1989).
93. Judge Weeramantry noted that "the rights of future generations have passed
the stage when they were merely an embryonic right struggling for recognition. They
have woven themselves into international law through major treaties, through juristic
opinion and through general principles of law recognized by civilized nations."
In the Philippines, the Supreme Court recognized intergenerational
equity by granting constitutional standing to a group of children to
represent the interests of future generations in their effort to stop the
leasing of biologically diverse forested lands.9 4
Principles of intergenerational equity offer an example of
potentially unifying norms to counter alienation associated with
fragmentation. To be effective, they must be articulated and
implemented at all levels-international, national, and local.
D. Equity as Essentialto Norm Consensusand Compliance
Notions of equity or fairness are a source of conflict in negotiating
and implementing international agreements and other international
legal instruments. Thomas Franck and others have observed that for
countries, or peoples, to comply with international legal norms, they
must be perceived as equitable.95 The concern with equity today is
even broader: namely, that there are growing inequities in the
world-among and within countries-and that this could thwart
agreement with common international norms and obedience to
international law. Habermas has suggested that "a liberal political
culture can hold together multi-cultural societies only if democratic
citizenship can deliver in terms not only of liberal and political rights,
but of social and cultural rights as well."96 Gross economic inequities
thwart this realization.
While the world is more prosperous than it was fifty years ago, the
inequities are also greater. According to the UNDP, the difference
between Gross Domestic Product ("GDP") for industrial countries
and for developing countries has increased dramatically in the past
century, with the rate of inequality growing substantially in the past
twenty years.' In 1980, the average GDP for industrialized countries
was $14,206 and the average GDP for developing countries was only
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996
I.C.J. 226, 445 (July 8) (separate opinion of Judge Weeramantry), reprinted in 35
I.L.M. 809, 888 (1996); see, e.g., UNESCO Declaration on the Responsibilities of the
Present Generations Towards Future Generations, Nov. 12, 1997, UNESCO General
Conference, 29th Sess., available at <http://www.unesco.org>.
94. Judgment of June 30, 1993 (Juan Antonio Oposa et. al. v. the Honorable
Fulgencio Factoran, Secretary of the Department of the Environment and Natural
Resources, et. al.), Supreme Court of the Philippines, G.R. No. 101083), reprintedin
33 I.L.M. 123 (1994); see Ted Allen, The Philippine Children's Case: Recognizing
Standingfor FutureGenerations,6 Geo. Int'l Envtl. L. Rev. 713, 713 (1994).
95. See generally Thomas Franck, Fairness in International Law and Institutions
(1995) (discussing fairness in various contexts of intrernational law); Howard K.
Jacobson & Edith Brown Weiss, Assessing the Record and Designing Strategies to
EngageCountries,in Weiss, Engaging Countries, supranote 15, at 511-23.
96. Jtrgen Habermas, The European Nation State: Its Achievements and Its
Limitations On the Pastand Future of Sovereignty and Citizenship, 9 Ratio Juris 125,
97. See HDR, supranote 6, at 38.
$686, a gap of $13,520.98 By 1997, the average GDP for industrialized
countries had grown to $19,283, while the average GDP for
developing countries had only grown to $908.99 The gap in 1997 was
$18,375, an increase in inequality of $4,855. The associated
differences in human development are also striking. The average
human development index score"° for industrialized countries in 1997
was 0.919, while the average score for developing countries was 0.637,
and the score for the least developed countries only 0.430.101
There are also significant differences in access to technology and
the benefits of globalization. In mid-1998, 26.3% of the U.S.
population were internet users, compared to 0.8% in Latin America,
0.4% in East Asia, and 0.1% in Sub-Saharan Africa.0 Average
internet access fees reached $100 per month in several African
countries, as compared with only $10 per month in the United
States. 103 Fully one quarter of the world's countries did not have even
one telephone per one hundred people, a standard measure UNDP
uses to identify minimally basic access to telecommunications.'
Intellectual property was similarly unequally distributed: ten
countries controlled 95% of U.S. patents and 84% of global research
and development in 1993, while 80% of patents from developing
countries were awarded to residents of industrialized countries.1 s The
traditional knowledge of local and indigenous groups was generally
inadequately protected by intellectual property regimes.10
Unless the international community pays attention to issues of
equity, it will be difficult to develop and maintain an international
legal system in which all participants, public and private, have
If we were to gather together again in ten years, would we say that
international law is on the rise or on the decline now? If international
9& See id at 154.
id100. The human development index is a measure on a scale of 0 to 1 produced by
UNDP to account for life expectancy, literacy rate, enrollment in school, and per
capita income. See id. at 127-28.
101. See id at 154.
102. See id. at 63.
103. See id at 62.
104. See id.
105. See id. at 68.
106. See id. at 70-71. Some national governments have attempted to protect the
knowledge, but these efforts are experimental. See, e.g., Fundaci6n Sabidurfa
Indfgena (FSI) and Brij Kothari, Rights to the Benefits of Research: Compensating
Indigenous Peoples for Their Intellectual Contribution, 56 Hum. Org. 127, 127-37
(1997) (discussing an effort in Ecuador to develop a method of compensating
indigenous groups for the profits generated by research based on their traditional
law is restricted to States and consists only of binding rules generated
by States, international law may be declining relative to other
international normative instruments. But even here, the absolute
number of binding instruments concluded by States is increasing. If
we redefine international law to include norms developed by actors in
addition to States, and if we include norms that are formally
nonbinding as well as those that are binding, the answer is surely that
international law is rising in this new century. International law is
permeating ever broader and more local aspects of life worldwide.
But there are dangers in the emerging legal system: the inadequate
accountability of the non-State actors that develop legal instruments
and the legitimacy of the processes for doing so; the controversies
over the proper level and/or location of authority for governance
decisions; and the threat that inequities worldwide and within
countries pose for acceptance of international legal norms and of the
international legal system. These issues need to be addressed. Yes,
international law is rising, but it is dressed in newer garb and faces