Critical reflections on the Westphalian assumptions of international law and organization: A crisis of legitimacy

Review of International Studies

Volumn 27, Issue 2, 2001, Pages 133-150

  Cutler, A Claire ^a  

^a NONE

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EID: 0035608494     PISSN: 02602105     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0260210500001339     Document Type: Article

References (136)

1. For a collection of papers that explores the dimensions of private, corporate power and authority in the global political economy, see A. Claire Cutler, Virginia Haufler, and Tony Porter (eds.), Private Authority and International Affairs (New York: SUNY Press, 1999).
2. While more will be said later on the international legal status of the individual, a full analysis is beyond the scope of this article and must await another time. However, for good statements of the problem of the individual under international law, see Rosalyn Higgins, 'Conceptual Thinking about the Individual under International Law', in Richard Falk, Friedrich Kratochwil, and Saul Mendolvitz (eds.), International Law: A Contemporary Perspective (Boulder, CO: Westview Press, 1985) and M. W. Janis, 'Individuals as Subjects of International Law', Cornell International Law Journal, 17 (1984), pp. 61-78.
3. While more will be said later on the international legal status of the individual, a full analysis is beyond the scope of this article and must await another time. However, for good statements of the problem of the individual under international law, see Rosalyn Higgins, 'Conceptual Thinking about the Individual under International Law', in Richard Falk, Friedrich Kratochwil, and Saul Mendolvitz (eds.), International Law: A Contemporary Perspective (Boulder, CO: Westview Press, 1985) and M. W. Janis, 'Individuals as Subjects of International Law', Cornell International Law Journal, 17 (1984), pp. 61-78.
4. For limitations to the use of the domestic analogy, see Hidemi Suganami, The Domestic Analogy and World Order Proposals (Cambridge: Cambridge University Press, 1989).
5. For the view that international society is a constitutional order characterized by norms and rules, see A. Claire Cutler, 'The "Grotian" Tradition in International Relations', Review of International Studies, 17 (1991), pp. 41-65 and the references cited therein relating to the English school and the works of Martin Wight, Hedley Bull, and Sir Hirsch Lauterpacht. And see Friedrich Kratochwil, Rules Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989 ) and Kratochwil, 'Politics, Norms and Peaceful Change', Review of International Studies, (1998), pp. 193-218. In the United States this view has been associated with the study of international regimes as constituted orders See for example, Robert Keohane, After Hegemony: Cooperation and Discord in the World Economy (Princeton, NJ: Princeton University Press, 1984 ) and International Institutions and State Power (Boulder, CO: Westview Press, 1989 ); and Oran Young, 'International Regimes: Toward a New Theory of Institutions', World Politics, 39 (1986), pp. 104-22.
6. For the view that international society is a constitutional order characterized by norms and rules, see A. Claire Cutler, 'The "Grotian" Tradition in International Relations', Review of International Studies, 17 (1991), pp. 41-65 and the references cited therein relating to the English school and the works of Martin Wight, Hedley Bull, and Sir Hirsch Lauterpacht. And see Friedrich Kratochwil, Rules Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989 ) and Kratochwil, 'Politics, Norms and Peaceful Change', Review of International Studies, (1998), pp. 193-218. In the United States this view has been associated with the study of international regimes as constituted orders See for example, Robert Keohane, After Hegemony: Cooperation and Discord in the World Economy (Princeton, NJ: Princeton University Press, 1984 ) and International Institutions and State Power (Boulder, CO: Westview Press, 1989 ); and Oran Young, 'International Regimes: Toward a New Theory of Institutions', World Politics, 39 (1986), pp. 104-22.
7. For the view that international society is a constitutional order characterized by norms and rules, see A. Claire Cutler, 'The "Grotian" Tradition in International Relations', Review of International Studies, 17 (1991), pp. 41-65 and the references cited therein relating to the English school and the works of Martin Wight, Hedley Bull, and Sir Hirsch Lauterpacht. And see Friedrich Kratochwil, Rules Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989 ) and Kratochwil, 'Politics, Norms and Peaceful Change', Review of International Studies, (1998), pp. 193-218. In the United States this view has been associated with the study of international regimes as constituted orders See for example, Robert Keohane, After Hegemony: Cooperation and Discord in the World Economy (Princeton, NJ: Princeton University Press, 1984 ) and International Institutions and State Power (Boulder, CO: Westview Press, 1989 ); and Oran Young, 'International Regimes: Toward a New Theory of Institutions', World Politics, 39 (1986), pp. 104-22.
8. For the view that international society is a constitutional order characterized by norms and rules, see A. Claire Cutler, 'The "Grotian" Tradition in International Relations', Review of International Studies, 17 (1991), pp. 41-65 and the references cited therein relating to the English school and the works of Martin Wight, Hedley Bull, and Sir Hirsch Lauterpacht. And see Friedrich Kratochwil, Rules Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989 ) and Kratochwil, 'Politics, Norms and Peaceful Change', Review of International Studies, (1998), pp. 193-218. In the United States this view has been associated with the study of international regimes as constituted orders See for example, Robert Keohane, After Hegemony: Cooperation and Discord in the World Economy (Princeton, NJ: Princeton University Press, 1984 ) and International Institutions and State Power (Boulder, CO: Westview Press, 1989 ); and Oran Young, 'International Regimes: Toward a New Theory of Institutions', World Politics, 39 (1986), pp. 104-22.
9. For the view that international society is a constitutional order characterized by norms and rules, see A. Claire Cutler, 'The "Grotian" Tradition in International Relations', Review of International Studies, 17 (1991), pp. 41-65 and the references cited therein relating to the English school and the works of Martin Wight, Hedley Bull, and Sir Hirsch Lauterpacht. And see Friedrich Kratochwil, Rules Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989 ) and Kratochwil, 'Politics, Norms and Peaceful Change', Review of International Studies, (1998), pp. 193-218. In the United States this view has been associated with the study of international regimes as constituted orders See for example, Robert Keohane, After Hegemony: Cooperation and Discord in the World Economy (Princeton, NJ: Princeton University Press, 1984 ) and International Institutions and State Power (Boulder, CO: Westview Press, 1989 ); and Oran Young, 'International Regimes: Toward a New Theory of Institutions', World Politics, 39 (1986), pp. 104-22.
10. For the view that international society is a constitutional order characterized by norms and rules, see A. Claire Cutler, 'The "Grotian" Tradition in International Relations', Review of International Studies, 17 (1991), pp. 41-65 and the references cited therein relating to the English school and the works of Martin Wight, Hedley Bull, and Sir Hirsch Lauterpacht. And see Friedrich Kratochwil, Rules Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989 ) and Kratochwil, 'Politics, Norms and Peaceful Change', Review of International Studies, (1998), pp. 193-218. In the United States this view has been associated with the study of international regimes as constituted orders See for example, Robert Keohane, After Hegemony: Cooperation and Discord in the World Economy (Princeton, NJ: Princeton University Press, 1984 ) and International Institutions and State Power (Boulder, CO: Westview Press, 1989 ); and Oran Young, 'International Regimes: Toward a New Theory of Institutions', World Politics, 39 (1986), pp. 104-22.
11. For a classic statement of this position see Leo Gross, 'The Peace of Westphalia, 1648-1948,' American Journal of International Law, 42 (1948), pp. 20-41. For more contemporary texts that date the history of modern international law to the Peace of Westphalia see Richard Falk, 'The Interplay of Westphalia and Charter Conceptions of International Legal Order', in Falk, Kratochwil, and Mendolvitz (eds.), International Law, and Peter Malanczuk (ed.), Akehurst's Modern Introduction to International Law, 7th revised edn. (London: Routledge, 1997).
12. For a classic statement of this position see Leo Gross, 'The Peace of Westphalia, 1648-1948,' American Journal of International Law, 42 (1948), pp. 20-41. For more contemporary texts that date the history of modern international law to the Peace of Westphalia see Richard Falk, 'The Interplay of Westphalia and Charter Conceptions of International Legal Order', in Falk, Kratochwil, and Mendolvitz (eds.), International Law, and Peter Malanczuk (ed.), Akehurst's Modern Introduction to International Law, 7th revised edn. (London: Routledge, 1997).
13. For a classic statement of this position see Leo Gross, 'The Peace of Westphalia, 1648-1948,' American Journal of International Law, 42 (1948), pp. 20-41. For more contemporary texts that date the history of modern international law to the Peace of Westphalia see Richard Falk, 'The Interplay of Westphalia and Charter Conceptions of International Legal Order', in Falk, Kratochwil, and Mendolvitz (eds.), International Law, and Peter Malanczuk (ed.), Akehurst's Modern Introduction to International Law, 7th revised edn. (London: Routledge, 1997).
14. 'A New Stream of International Law Scholarship', Wisconsin International Law Journal, 7 (1988), p. 14.
15. See Hedley Bull, The Anarchical Society: A Study of Order in World Politics (London: Macmillan, 1977).
16. Kennedy, 'A New Stream', p. 22 notes that '[T]he traditional intellectual story of international law's evolution from 1648 to 1918 is familiar. Begun as a series of disassociated doctrines about navigation, war and relations with aboriginals within a "natural law" philosophy, international law slowly matured as a comprehensive doctrinal fabric rendered coherent by a set of "general principles" and authoritative by its "positivist" link to sovereign consent. The shift from fragmentation to coherence is accompanied, then, by a shift from "natural law" to a combination of "principles" and "positivism"'.
17. M. N. Shaw, International Law, 3rd edn. (Cambridge: Cambridge University Press, 1994), p. 135.
18. Shaw, International Law, p. 137 cites a 1975 volume of Lauterpacht's International Law: Collected Papers, vol II, p. 489.
19. Shaw, International Law, p. 137 cites a 1975 volume of Lauterpacht's International Law: Collected Papers, vol II, p. 489.
20. Shaw, International Law, p. 137.
21. 'Westphalia and All That', in Judith Goldstein and Robert O. Keohane (eds.), Ideas and Foreign Policy (Cornell University Press, 1993), p. 235.
22. Pierre Schlag, 'The Problem of the Subject', Texas Law Review, 69 (1991), p. 1627, formulates the problem of the subject in the context of the objectification and sublimation of the subject as a formalistic move to give law the appearance of neutrality and objectivity, and hence to render law stable and legitimate.
23. Schlag, 'The Problem of the Subject', p. 1640, notes that '[T]he sublimation of the subject into the order of the object and the resulting fetishism is a move that is replayed endlessly in American legal thought. This self-effacement of the subject to the order of the object is precisely what enables legal thinkers to keep believing in their objectified thought structures as off the shelf, stand-alone, self-sufficient, self-sustaining systems, completely independent of the activity of the subjects. This sublimation of the subject is precisely the kind of process targeted by the reification critique of liberal legal thought offered by cls [critical legal studies].'
24. Schlag, 'The Problem of the Subject', p. 1629, note 6.
25. Schlag, 'The Problem of the Subject', p. 1726.
26. Kennedy, 'A New Stream', p. 25 observes that '[D]octrinally, the development of a territorial jurisdiction, so crucial to the image of a disembodied state, was first and foremost a religious notion - replacing and instantiating a disembodied deity as state.'
27. Ibid., p. 22.
28. Ibid., p. 25.
29. Ibid., p. 25.
30. Ibid., p. 23.
31. The Retreat of the State: The Diffusion of Power in the World Economy (Cambridge: Cambridge University Press, 1996), p. 184.
32. See generally, A. Claire Cutler, 'Locating "Authority" in the Global Political Economy', International Studies Quarterly, 43 (1999), pp. 59-81 and Cutler, 'Private Authority and International Trade Relations: The Case of Maritime Transport', in Cutler, Haufler, and Porter (eds.), Private Authority and International Affairs, pp. 283-329.
33. See generally, A. Claire Cutler, 'Locating "Authority" in the Global Political Economy', International Studies Quarterly, 43 (1999), pp. 59-81 and Cutler, 'Private Authority and International Trade Relations: The Case of Maritime Transport', in Cutler, Haufler, and Porter (eds.), Private Authority and International Affairs, pp. 283-329.
34. 'Liberalism and the Art of Separation,' Political Theory, 12:3 (1984), pp. 315-30.
35. See A. Claire Cutler, 'Global Capitalism and Liberal Myths: Dispute Settlement in Private International Trade Relations', Millennium: Journal of International Studies, 24:3 (1995), pp. 377-97, and Susan Strange, 'Political Economy and International Relations', in Ken Booth and Steve Smith (eds.), International Relations Theory Today (University Park, PA: The Pennsylvania State University Press,1995).
36. See A. Claire Cutler, 'Global Capitalism and Liberal Myths: Dispute Settlement in Private International Trade Relations', Millennium: Journal of International Studies, 24:3 (1995), pp. 377-97, and Susan Strange, 'Political Economy and International Relations', in Ken Booth and Steve Smith (eds.), International Relations Theory Today (University Park, PA: The Pennsylvania State University Press,1995).
37. For a classic account of the origin of the separation of public and private authority in terms of disembedding the self-regulating market from its social and political context, see Karl Polanyi, The Great Transformation: The Political and Economic Origins of our Times (Boston, MA: Beacon Press, 1944).
38. 'The History of the Public/Private Distinction', University of Pennsylvania Law Review, 130 (1982), pp. 1425-6.
39. Cutler, 'Global Capitalism and Liberal Myths'.
40. For the significance of the market to international political economy, see generally Robert Gilpin, The Political Economy of International Relations (Princeton, NJ: Princeton University Press, 1987); Susan Strange, States and Markets (London: Pinter, 1988); Herman M. Schwartz, States Versus Markets: History, Geography, and the Development of the International Political Economy (New York: St. Martin's Press, 1994); Stephen Gill and David Law, The Global Political Economy: Perspectives, Problems and Policies (Baltimore, MD: The Johns Hopkins University Press, 1988).
41. For the significance of the market to international political economy, see generally Robert Gilpin, The Political Economy of International Relations (Princeton, NJ: Princeton University Press, 1987); Susan Strange, States and Markets (London: Pinter, 1988); Herman M. Schwartz, States Versus Markets: History, Geography, and the Development of the International Political Economy (New York: St. Martin's Press, 1994); Stephen Gill and David Law, The Global Political Economy: Perspectives, Problems and Policies (Baltimore, MD: The Johns Hopkins University Press, 1988).
42. For the significance of the market to international political economy, see generally Robert Gilpin, The Political Economy of International Relations (Princeton, NJ: Princeton University Press, 1987); Susan Strange, States and Markets (London: Pinter, 1988); Herman M. Schwartz, States Versus Markets: History, Geography, and the Development of the International Political Economy (New York: St. Martin's Press, 1994); Stephen Gill and David Law, The Global Political Economy: Perspectives, Problems and Policies (Baltimore, MD: The Johns Hopkins University Press, 1988).
43. For the significance of the market to international political economy, see generally Robert Gilpin, The Political Economy of International Relations (Princeton, NJ: Princeton University Press, 1987); Susan Strange, States and Markets (London: Pinter, 1988); Herman M. Schwartz, States Versus Markets: History, Geography, and the Development of the International Political Economy (New York: St. Martin's Press, 1994); Stephen Gill and David Law, The Global Political Economy: Perspectives, Problems and Policies (Baltimore, MD: The Johns Hopkins University Press, 1988).
44. Susan Strange was probably one of the strongest proponents of this view. See States and Markets, The Retreat of the State, and 'Political Economy and International Relations', and with John Stopford, Rival States, Rival Firms: Competition for World Market Shares (Cambridge: Cambridge University Press, 1991).
45. Susan Strange was probably one of the strongest proponents of this view. See States and Markets, The Retreat of the State, and 'Political Economy and International Relations', and with John Stopford, Rival States, Rival Firms: Competition for World Market Shares (Cambridge: Cambridge University Press, 1991).
46. Susan Strange was probably one of the strongest proponents of this view. See States and Markets, The Retreat of the State, and 'Political Economy and International Relations', and with John Stopford, Rival States, Rival Firms: Competition for World Market Shares (Cambridge: Cambridge University Press, 1991).
47. See Ellen Meiksins Wood, 'The Separation of the Economic and Political in Capitalism', New Left Review, 127 (1981), pp. 66-95 reproduced in her Democracy Against Capitalism: Renewing Historical Materialism (Cambridge: Cambridge University Press, 1995) for discussion of the distinction between economics and politics. And see A. Claire Cutler, 'Historical Materialism, Globalization, and Law: Competing Conceptions of Property', forthcoming in Mark Rupert and Hazel Smith (eds.), The Point is to Change the World: Socialism through Globalization? (Routledge, forthcoming) for the view that Marxist analysis reproduces the liberal distinction between economics and politics and thus also neglects the authority of private relations.
48. See Ellen Meiksins Wood, 'The Separation of the Economic and Political in Capitalism', New Left Review, 127 (1981), pp. 66-95 reproduced in her Democracy Against Capitalism: Renewing Historical Materialism (Cambridge: Cambridge University Press, 1995) for discussion of the distinction between economics and politics. And see A. Claire Cutler, 'Historical Materialism, Globalization, and Law: Competing Conceptions of Property', forthcoming in Mark Rupert and Hazel Smith (eds.), The Point is to Change the World: Socialism through Globalization? (Routledge, forthcoming) for the view that Marxist analysis reproduces the liberal distinction between economics and politics and thus also neglects the authority of private relations.
49. See Ellen Meiksins Wood, 'The Separation of the Economic and Political in Capitalism', New Left Review, 127 (1981), pp. 66-95 reproduced in her Democracy Against Capitalism: Renewing Historical Materialism (Cambridge: Cambridge University Press, 1995) for discussion of the distinction between economics and politics. And see A. Claire Cutler, 'Historical Materialism, Globalization, and Law: Competing Conceptions of Property', forthcoming in Mark Rupert and Hazel Smith (eds.), The Point is to Change the World: Socialism through Globalization? (Routledge, forthcoming) for the view that Marxist analysis reproduces the liberal distinction between economics and politics and thus also neglects the authority of private relations.
50. For the liberal foundations of international law, see M. W. Janis, 'Jeremy Bentham and the Fashioning of 'International Law', American Journal of International Law, 78 (1984), pp. 405-18, and for a critical analysis of the distinction between public and private international law, see A. Claire Cutler, 'Artifice, Ideology, and Paradox: The Public/Private Distinction in International Law', Review of International Political Economy, 4 (1997), pp. 261-85.
51. For the liberal foundations of international law, see M. W. Janis, 'Jeremy Bentham and the Fashioning of 'International Law', American Journal of International Law, 78 (1984), pp. 405-18, and for a critical analysis of the distinction between public and private international law, see A. Claire Cutler, 'Artifice, Ideology, and Paradox: The Public/Private Distinction in International Law', Review of International Political Economy, 4 (1997), pp. 261-85.
52. Shaw, International Law, p. 135. An international person is defined as 'capable of possessing international rights and duties ... and [having the] capacity to maintain its rights by bringing international claims' by the International Court of Justice in the Reparations case (Advisory Opinion on Reparations for Injuries Suffered in the Service of the United Nations, 1949 International Court of Justice Reports), p. 178.
53. Shaw, International Law, p. 135. An international person is defined as 'capable of possessing international rights and duties ... and [having the] capacity to maintain its rights by bringing international claims' by the International Court of Justice in the Reparations case (Advisory Opinion on Reparations for Injuries Suffered in the Service of the United Nations, 1949 International Court of Justice Reports), p. 178.
54. 'Individuals as Subjects under International Law', p. 62.
55. See Robert J. Beck, Anthony C. Arend and Robert D. Vander Lugt (eds.). International Rules: Approaches from International Law and International Relations (Oxford: Oxford University Press, 1996), chs. 2 and 3 for good reviews of natural and positive law theories of international law, respectively.
56. See Cutler, 'The "Grotian Tradition" in International Relations'.
57. Shaw, International Law, p. 25.
58. Reparations case, p. 180.
59. Article 34 (1), Statute of the International Court of Justice.
60. See the discussion of bilateral investment treaties accompanying note 62.
61. Malanczuk, Akehurst's Modern Introduction to International Law, p. 100.
62. 'Conceptual Thinking About the Individual in International Law'.
63. 'Conceptual Thinking About the Individual in International Law', p. 478.
64. It is important to note that while the formal legal status of the individual remains that of an 'object,' there are growing indications that the international legal status of the individual is undergoing a practical transformation. A number of forums now entertain the human rights claims of individuals, although legal theory and the official position of many states, including the former Soviet states, many developing states, and the United States, remain stubbornly opposed to the extension of international legal personality to individuals. The most notable instances of this accretion of legal personality occur in the contexts of the European Commission on Human Rights; the European Court of Justice; the Optional Protocol to the United Nations Covenant on Civil and Political Rights; the War Crimes Tribunals for Nuremberg, Tokyo, former Yugoslavia, and Rwanda; the United Nations Commission on Human Rights. The United Nations Trusteeship Council and the yet to be established International Tribunal for the Law of the Sea entertain individual claims in areas outside the human rights context. See generally the references cited above in note 2 and Donna E. Arzt and Igor I. Lukashuk, 'Participants in International Legal Relations,' in International Law: Classic and Contemporary Readings, edited by Charlotte Ku and Paul F. Diehl (Boulder, CO: Westview Press, 1998), pp. 155-76. This trend does not appear to be occurring in areas involving individual claims of economic loss from wrongful or negligent international activities. While the Iran-US Claims Tribunal, which was set up to hear claims flowing from the Gulf War, is open to individual claims, it has largely ignored the claims of individuals as Arzt and Lukashuk note at p. 168.
65. Typically, individuals seeking to make a claim under international law must work through the state of which they are a national. However, there is no obligation on states to represent their nationals diplomatically or in international judicial proceedings. Such representation is purely discretionary and may be withheld. See William R. Slomanson, Fundamental Perspectives on International Law, 2nd edn. (Minneapolis/Saint Paul, MI: West Publishing Company, 1995), ch. 4.
66. Examples of corporate enterprises exhibiting various elements of international legal personality include Eurofima, Intelsat, Eurochemic, the Mont Blanc Tunnel Company, and the Mozelle Canal Company.
67. Detlev F. Vagts, 'The Multinational Enterprise: A New Challenge for Transnational Law', Harvard Law Review, 83 (1970), p. 740.
68. Fleur Johns, 'The Invisibility of the Transnational Corporation: An Analysis of International Law and Theory', Melbourne University Law Review, 19 (1994), p. 893.
69. The traditional Anglo-American approach to determining the nationality of a corporation is the place of incorporation (domicile) and for unincorporated businesses, the state in which the governing body meets or is located. In contrast, European states tend to use the state where the corporation's home office is located or where its principal business is carried on. See Gerhard von Glahn, Law Among Nations: An Introduction to Public International Law, 7th edn. (Boston, MA: Allyn and Bacon, 1996). See too Ian Brownlie, Principles of Public International Law, 4th edn. (Oxford: Clarendon Press, 1990), pp. 421-4.
70. The traditional Anglo-American approach to determining the nationality of a corporation is the place of incorporation (domicile) and for unincorporated businesses, the state in which the governing body meets or is located. In contrast, European states tend to use the state where the corporation's home office is located or where its principal business is carried on. See Gerhard von Glahn, Law Among Nations: An Introduction to Public International Law, 7th edn. (Boston, MA: Allyn and Bacon, 1996). See too Ian Brownlie, Principles of Public International Law, 4th edn. (Oxford: Clarendon Press, 1990), pp. 421-4.
71. In the famous legal case Barcelona Traction, Light, and Power Co., 1970 International Court of Justice Reports (Second Phase), 3 (1970), the company Barcelona traction was incorporated and held its registered office in Canada although 88 per cent of its shareholders were nationals of Belgium, and some lived in Canada and the US. Barcelona Traction operated a power company in Spain which was declared bankrupt by Spanish courts, who ordered its assets seized. Belgium, Canada, and the US tried to assist Barcelona Traction resist the seizure because they felt the Spanish authorities were acting prematurely and improperly in instituting the bankruptcy proceedings. Canada was unwilling to pursue the claims of the shareholders living in Canada, and Belgium pursued the claim against Spain in the International Court of Justice (ICJ). However, the ICJ disallowed Belgium's claim, finding that the proper country to initiate the claim was Canada. Given that Canada was unwilling to proceed with the claim, the shareholders were left with no remedies under international law.
72. State responsibility comes in a number of forms including injuries to a state or aliens (foreign citizens) and ranging from human rights violations to injury to property interests. See Shaw, International Law, ch. 13.
73. Shaw, International Law, p. 488.
74. That is unless the state fails to provide local remedies to redress the wrong. Von Glahn, Law Among Nations, p. 201.
75. See Philip I. Blumberg, The Multinational Challenge to Corporation Law: The Search for a New Corporate Personality (New York and Oxford: Oxford University Press, 1993) for the doctrine of limited liability and entity theory. See Notes, 'Liability of Parent Corporations for Hazardous Waste Cleanup and Damages', Harvard Law Review, 99 (1986), p. 991 for the view that 'limited liability encourages corporations to place high-risk activities in the hands of poorly capitalized subsidiary corporations. The incentive for corporations to use subsidiaries as a shield against liability is particularly great in the hazardous waste disposal field because the costs of waste disposal activities may be readily shifted onto involuntary creditors'.
76. See Philip I. Blumberg, The Multinational Challenge to Corporation Law: The Search for a New Corporate Personality (New York and Oxford: Oxford University Press, 1993) for the doctrine of limited liability and entity theory. See Notes, 'Liability of Parent Corporations for Hazardous Waste Cleanup and Damages', Harvard Law Review, 99 (1986), p. 991 for the view that 'limited liability encourages corporations to place high-risk activities in the hands of poorly capitalized subsidiary corporations. The incentive for corporations to use subsidiaries as a shield against liability is particularly great in the hazardous waste disposal field because the costs of waste disposal activities may be readily shifted onto involuntary creditors'.
77. See Jonathan I. Charney, 'Transnational Corporations and Developing Public International Law', Duke Law Journal (1983), p. 767.
78. Charney, 'Transnational Corporations', p. 766 notes that in international negotiations TNCs have not overtly sought broad international legal personality' and were unenthusiastic about developing mechanisms for international incorporation.
79. Charney, 'Transnational Corporations'.
80. Ibid., p. 750-1.
81. Ibid., p. 751 n. 4 notes that in the United Nations Commission on International Trade and Development (UNCTAD) business interests could only participate through representations to the Secretariat and to national delegations. In comparison, the Organization for Economic Cooperation and Development (OECD) enters into formal consultation with business and labour groups. He also notes that there were extensive consultations with business during the Tokyo Round GATT negotiations.
82. See Charney, 'Transnational Corporations', pp. 754-5.
83. Arzt and Lukashuk, 'Participants in International Legal Relations', p. 167.
84. A bilateral investment treaty is 'a legally binding international agreement between two states whereby each state promises, on a reciprocal basis, to observe the standards of treatment laid down in the treaty in its dealings within investors from other contracting states'. Muchlinski, Multinational Enterprises and the Law, p. 617. They are designed to protect the investor and when used in combination with an agreement to submit disputes to ICSID accord corporations much scope in enforcing their rights against host states.
85. Malanczuk, Akehurst's Modern Introduction to International Law, p. 101.
86. Ibid., p. 294.
87. J. -G. Castel, 'The Settlement of Disputes under the 1988 Canada-United States Free Trade Agreement', American Journal of International Law 83 (1989), pp. 118-28; Lorraine Eden, 'The Emerging North American Investment Regime', Transnational Corporations 5:3 (December 1996), pp. 61-98; Malanczuk, Akehurst's Modern Introduction to International Law, p. 101.
88. J. -G. Castel, 'The Settlement of Disputes under the 1988 Canada-United States Free Trade Agreement', American Journal of International Law 83 (1989), pp. 118-28; Lorraine Eden, 'The Emerging North American Investment Regime', Transnational Corporations 5:3 (December 1996), pp. 61-98; Malanczuk, Akehurst's Modern Introduction to International Law, p. 101.
89. J. -G. Castel, 'The Settlement of Disputes under the 1988 Canada-United States Free Trade Agreement', American Journal of International Law 83 (1989), pp. 118-28; Lorraine Eden, 'The Emerging North American Investment Regime', Transnational Corporations 5:3 (December 1996), pp. 61-98; Malanczuk, Akehurst's Modern Introduction to International Law, p. 101.
90. See Eden, 'The emerging North American investment regime'.
91. Frans Engering, 'The Multilateral Investment Agreement', Transnational Corporations (December 1996), pp. 156-7.
92. See Cutler, 'Global Capitalism and Liberal Myths', and Yves Dezalay and Bryant G. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago and London: University of Chicago Press, 1996).
93. See Cutler, 'Global Capitalism and Liberal Myths', and Yves Dezalay and Bryant G. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago and London: University of Chicago Press, 1996).
94. 'Global Capitalism and the State', International Affairs 73:3 (1997), pp. 442-3.
95. Carl J. Mayer, 'Personalizing the Impersonal: Corporations and the Bill of Rights', The Hastings Law Journal, 41 (March 1990), pp. 577-667 and Chris Tollefson, 'Corporate Constitutional Rights and the Supreme Court of Canada', Queen's Law Journal, 19 (1993), pp. 309-49.
96. Carl J. Mayer, 'Personalizing the Impersonal: Corporations and the Bill of Rights', The Hastings Law Journal, 41 (March 1990), pp. 577-667 and Chris Tollefson, 'Corporate Constitutional Rights and the Supreme Court of Canada', Queen's Law Journal, 19 (1993), pp. 309-49.
97. Peter Muchlinski, Multinational Enterprises and the Law (Oxford and Cambridge: Blackwell, 1995), pp. 9-11.
98. In contrast, students of international political economy seem to be more aware of the growing practical significance of TNCs. For Lorraine Eden, 'Bringing the Firm Back In: Multinationals in International Political Economy', in Lorraine Eden and Evan H. Potter (eds.), Multinationals in the Global Political Economy (New York: St. Martin's Press, 1994), p. 26, the crucial issue in the global political economy today 'is the tension between states and multinationals, not states and markets'. Susan Strange too notes the increasing 'political' significance of firms as changes in the global political economy enhance the significance of markets. See also Strange, The Retreat of the State, p. 4. However, there is still a dominant tendency to regard corporate power as ultimately linked to and conditioned by state power. See Stephen Krasner, 'Power Politics, Institutions, and Transnational Relations', in Bringing Transnationals Back In: Non-State Actors, Domestic Structures and International Institutions, Thomas Risse-Kappen (ed.) (Cambridge: Cambridge University Press, 1995), p. 279.
99. In contrast, students of international political economy seem to be more aware of the growing practical significance of TNCs. For Lorraine Eden, 'Bringing the Firm Back In: Multinationals in International Political Economy', in Lorraine Eden and Evan H. Potter (eds.), Multinationals in the Global Political Economy (New York: St. Martin's Press, 1994), p. 26, the crucial issue in the global political economy today 'is the tension between states and multinationals, not states and markets'. Susan Strange too notes the increasing 'political' significance of firms as changes in the global political economy enhance the significance of markets. See also Strange, The Retreat of the State, p. 4. However, there is still a dominant tendency to regard corporate power as ultimately linked to and conditioned by state power. See Stephen Krasner, 'Power Politics, Institutions, and Transnational Relations', in Bringing Transnationals Back In: Non-State Actors, Domestic Structures and International Institutions, Thomas Risse-Kappen (ed.) (Cambridge: Cambridge University Press, 1995), p. 279.
100. In contrast, students of international political economy seem to be more aware of the growing practical significance of TNCs. For Lorraine Eden, 'Bringing the Firm Back In: Multinationals in International Political Economy', in Lorraine Eden and Evan H. Potter (eds.), Multinationals in the Global Political Economy (New York: St. Martin's Press, 1994), p. 26, the crucial issue in the global political economy today 'is the tension between states and multinationals, not states and markets'. Susan Strange too notes the increasing 'political' significance of firms as changes in the global political economy enhance the significance of markets. See also Strange, The Retreat of the State, p. 4. However, there is still a dominant tendency to regard corporate power as ultimately linked to and conditioned by state power. See Stephen Krasner, 'Power Politics, Institutions, and Transnational Relations', in Bringing Transnationals Back In: Non-State Actors, Domestic Structures and International Institutions, Thomas Risse-Kappen (ed.) (Cambridge: Cambridge University Press, 1995), p. 279.
101. William Twining, 'Globalization and Legal Theory: Some Local Implications', Current Legal Problems, 49 (1996), p. 6.
102. 'Globalisation, market civilization, and disciplinary neoliberalism', Millennium: Journal of International Studies, 24 (1995), p. 413.
103. See UNIDROIT'S Principles of International Commercial Contracts (Rome: UNIDROIT, 1994) and Cutler, 'Global Capitalism and Liberal Myths'.
104. See UNIDROIT'S Principles of International Commercial Contracts (Rome: UNIDROIT, 1994) and Cutler, 'Global Capitalism and Liberal Myths'.
105. See Hilmy Ismail, 'Forum Non Conveniens: United States Multinational Corporations', and 'Personal Injuries in the Third World: Your Place or Mine?', Boston College Third World Law Journal, 11 (1991), pp. 249-76.
106. See Hilmy Ismail, 'Forum Non Conveniens: United States Multinational Corporations', and 'Personal Injuries in the Third World: Your Place or Mine?', Boston College Third World Law Journal, 11 (1991), pp. 249-76.
107. Strange, 'Global Government and Global Opposition', in Politics in an Interdependent World: Essays Presented to Ghita Ionescu, Cheltenham, UK and Brookefield, VT: Edward Elgar, 1994), p. 26.
108. Strange, 'Global Government and Global Opposition', p. 26.
109. Notes of Cases, 'The Multinational and the Antiquities of Company Law', The Modern Law Review, 47 (1984), pp. 87-92.
110. Johns, 'The Invisibility of the Transnational Corporation', 897, notes 21 and 22.
111. The Commission was created in 1974 by ECOSOC and given the mandate to prepare a code of conduct for governments and TNCs. Drafts were produced in 1978, 1983, 1988, and 1990. Consensus over the draft was never achieved and in 1992 the United Nations Centre on Transnational Corporations, Secretariat to the Commission, was dismantled and its functions were transferred to a new Transnational Corporations Management Division within ECOSOC.
112. Johns, 'The Invisibility of the Transnational Corporation', p. 899.
113. Quoted in Johns, 'The Invisibility of the Transnational Corporation', p. 896.
114. Ibid., p. 900.
115. See Cutler, 'Global Capitalism and Liberal Myths'.
116. H. L. A. Hart, The Concept of Law, 2nd edn. (Oxford: Oxford University Press, 1994).
117. Stephen Krasner (ed.), International Regimes (Ithaca, NY and London: Cornell University Press, 1983).
118. A good example of a legitimacy crisis could be found in the former Soviet Union in the context of constitutionally protected human rights that were in practice quite meaningless.
119. Art. 38 of the Statute of the International Court of Justice.
120. 'Globalization and the Changing Logic of Collective Action', International Organization, 49:4 (Autumn 1995), p. 618.
121. See Johns, 'The Invisibility of Transnational Corporations', p. 896; Detlev Vagts, 'The Multinational Enterprise', p. 764.
122. See Johns, 'The Invisibility of Transnational Corporations', p. 896; Detlev Vagts, 'The Multinational Enterprise', p. 764.
123. This is evident in the terms of the MAI, which restrict the regulatory ambit of states over foreign investment activities and in the shift in corporate legal preferences for 'soft law' agreements over 'hard law' ones. See A. Claire Cutler, 'Public Meets Private: The International Unification and Harmonization of Private International Trade Law', Global Society: Journal of Interdisciplinary International Relations, 13:1 (January 1999), pp. 25-48 on the appeal of soft law norms governing international commercial contracting.
124. See above, note 56.
125. For a review of the provisions of the MAI, see Frans Engering, 'The Multilateral Investment Agreement', Transnational Corporations, 5:3 (December 1996), pp. 147-61.
126. Philip Cerny, The Changing Architecture of Politics: Structure, Agency and the Future of the State (London: Sage Publications, 1990), p. 230 and 'Paradoxes of the Competition State: The Dynamics of Political Globalization', Government and Opposition, 32:2 (Spring 1997), p. 273.
127. Philip Cerny, The Changing Architecture of Politics: Structure, Agency and the Future of the State (London: Sage Publications, 1990), p. 230 and 'Paradoxes of the Competition State: The Dynamics of Political Globalization', Government and Opposition, 32:2 (Spring 1997), p. 273.
128. 'Critical Political Economy', in International Political Economy: Understanding Global Disorder, edited by Björn Hettne (Halifax, Nova Scotia: Fernwood Publishing, and London and New Jersey: Zed Books, 1995), p. 39.
129. Leo Panitch, 'Rethinking the Role of the State', in James A. Mittelman (ed.), Globalization: Critical Reflections (Boulder, CO: Rienner, 1996), p. 86.
130. 'A Perspective on Globalization', in Mittelman (ed.), Globalization, p. 27.
131. Ibid., p. 27.
132. 'Globalization, Demoralization, and the Politics of Indifference', in Mittelman (ed.), Globalization, p. 205.
133. Ibid., p. 206.
134. Antonio Gramsci, Selections from the Prison Notebooks, edited by Q. Hoare and G. Smith (New York: International Publishers, 1971), pp. 275-6.
135. Johns, 'The Invisibility of Transnational Corporations', p. 913.
136. Schlag, 'The Problem of the Subject', p. 1628.